NC0003719_Comments_20230531

SOUTHERN 601 West Rosemary Street, Suite 220 Telephone [phone]
ENVIRONMENTAL Chapel Hill, NC 27516 Facsimile 919-929-9421
LAW
CENTER
May 26, 2023
VIA Electronic Mail
Dr. Sergei Chernikov
N.C. Department of Environmental Quality
Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Re: Southern Environmental Law Center Comments Draft NPDES Permit No.
NC0003719, DAK Americas LLC/Cedar Creek Site
Dear Dr. Chernikov:
The Southern Environmental Law Center offers the following comments, on behalf of
Cape Fear River Watch, regarding the draft renewal National Pollutant Discharge Elimination
System ("NPDES") Permit NC0003719, issued by the North Carolina Department of
Environmental Quality ("the Department") to DAK Americas, LLC ("DAK").' DAK discharges
wastewater from its polyester resins manufacturing and plastic bottle recycling operations in
Fayetteville, North Carolina, into a portion of the Cape Fear River that is protected for aquatic
life, secondary recreation, and agriculture.2 Less than 10 miles downstream of DAK's discharge,
the Cape Fear River serves a water supply.3
DAK's wastewater contains exceptionally high concentrations of 1,4-dioxane and per -
and polyfluoroalkyl substances ("PFAS"), chemicals known to cause cancer.4 Despite
1 N.C. Dep't of Env't Quality, Draft NPDES Permit No. NC0003719 (Apr. 27, 2023) [hereinafter "DAK Draft
Permit"]. We note that the original public notice for this draft permit was published on April 27, 2023, but stated
comments would be due on April 24, 2023—three days prior to the public notice date. See Email from John
Hennessey, N.C. Dep't of Env't Quality (Apr. 27, 2023), Attachment 1. The Department subsequently confirmed
that members of the public would have the "full 30-day period of time as expected." Email from Michael
Montebello, N.C. Dep't of Env't Quality, to Hannah Nelson, S. Env't L. Ctr. (May 3, 2023), Attachment 2; see also
15A N.C. Admin. Code 21-1.0109(a)(2). Later communications from the Department, however, failed to articulate or
set a deadline for public comment. See Email from John Hennessey, N.C. Dep't of Env't Quality (May 4, 2023),
Attachment 3. Given the ambiguity, the Southern Environmental Law Center submits these comments on behalf of
Cape Fear River Watch within 30 days of the original public notice.
2 DAK Americas, Permit Renewal and Modification NPDES Permit No.: NC0003719 (May 3, 2022), at PDF pg. 4
[hereinafter "DAK Permit Application"], DAK Draft Permit, supra note 1 at 2.
3 15A N.C. Admin. Code 213.0311(p); see also NC Surface Water Classifications, N.C. DEP'T OF ENVT QUALITY,
hlt 2s:HeMerience.arcais.com/experience/7073e9l22ab74588b8c48ded34c3df55?data_id=dataSource_1-
SurfaceWaterClassifications 6584 4677%3A4191 (last visited May 22, 2023).
a See DAK Permit Application, supra note 2 at PDF pg. 273-591; see also DAK Americas, Discharge Monitoring
Reports (2018-2023), [hereinafter "DAK 2018-2023 DMRs"], Attachment 4; N.C. Dep't of Env't Quality, Cape
Fear Industrial PFAS & 1,4-dioxane Sampling (2020), at 11, Attachment 5.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

longstanding knowledge of this pollution, however, the Department did not include effluent
limits for these chemicals in DAK's draft permit.5
The draft permit here stands in stark contrast to how the Department has lawfully
addressed toxic chemical pollution released from other facilities. The Department, for example,
followed state and federal law when it imposed technology -based limits for certain PFAS
compounds in a NPDES permit issued to The Chemours Company, FC ("Chemours") last
September.6 The Department similarly followed the law when it assessed the need for water
quality -based limits for 1,4-dioxane in a NPDES permit issued to the city of Sanford in April of
this year' and imposed water quality -based limits for 1,4-dioxane in a draft NPDES permit
issued to the city of Asheboro last December.$ Without explanation, those processes were not
followed here,9 even though DAK discharges PFAS and 1,4-dioxane upstream of the very same
communities already overburdened with toxic chemical pollution from Chemours, Sanford, and
Asheboro (among others).
The Cape Fear River Basin and those who rely upon it suffer from some of the highest
amounts of 1,4-dioxane and PFAS pollution in the entire country.10 The Department cannot pick
and choose which polluters to control. As the U.S. Environmental Protection Agency ("EPA")
made clear in guidance issued last December, state permitting agencies should use their "existing
authorit[y]" to control toxic chemical pollution, including PFAS, "to the fullest extent available
under state and local law."11 In line with that guidance, and as set forth in more detail below, the
Department must analyze technology -based effluent limits for DAK's discharge of 1,4-dioxane
and PFAS. If technology -based limits are insufficient to ensure downstream water quality is
protected, the Department must impose water -quality based limits. Should the Department need
more information to craft these limits, it must demand information from DAK during the
application period. These changes must be made before the permit is made final. Failure to do so
is unlawful and prolongs North Carolinians' exposure to toxic pollution.
s See DAK Draft Permit, supra note 1 at 3-6.
6 N.C. Dep't of Env't Quality, Final NPDES Permit No. NC0090042 (Sept. 15, 2022), at 3 [hereinafter "Chemours
Outfall 004 Permit"], Attachment 6; N.C. Dep't of Env't Quality, Fact Sheet NPDES Permit No. NC0090042 (Sept.
14, 2022), at 13-14 [hereinafter "Chemours Outfall 004 Permit Fact Sheet"], Attachment 7.
7 N.C. Dep't of Env't Quality, Final Fact Sheet NPDES Permit No. NC0024147 (Apr. 14, 2023), at 13-14
[hereinafter "Sanford WWTP Permit Fact Sheet"], Attachment 8.
'N.C. Dep't of Env't Quality, Draft NPDES Permit No. NC0026123 (Dec. 6, 2022), at 3 [hereinafter "Asheboro
WWTP Draft Permit"], Attachment 9; N.C. Dep't of Env't Quality, Draft Permit Fact Sheet NPDES Permit No.
NC0026123 (Aug. 29, 2022), at 13-14 [hereinafter "Asheboro WWTP Permit Fact Sheet"], Attachment 10.
9 See N.C. Dep't of Env't Quality, Draft Fact Sheet NPDES Permit No. NC0003719 (Feb. 27, 2023) [hereinafter
"DAK Draft Permit Fact Sheet"], Attachment 11; Email from Sergei Chernikov, N.C. Dep't of Env't Quality, to
Hannah Nelson, S. Env't L. Ctr. (May 4, 2023) (conveying draft permit fact sheet), Attachment 12; N.C. Dep't of
Env't Quality, 3719-RPA-2023 (2023), Attachment 13 [hereinafter "DAK RPA Spreadsheet"]; Email from Sergei
Chernikov, N.C. Dep't of Env't Quality, to Hannah Nelson, S. Env't L. Ctr. (May 5, 2023) (conveying RPA
analysis), Attachment 14.
io Data Summary of The Third Unregulated Contaminant Monitoring Rule, U.S. Env't Prot. Agency,
https://www.epa.aov/dwucmr/data-summary-third-unregulated-contaminant-monitoring-rule (last visited May 22,
2023); N.C. Div. of Water Res., 1, 4-Dioxane in the Cape Fear River Basin of North Carolina: An Initial Screening
and Source Identification Study 2 (2016), Attachment 15.
" Memorandum from Radhika Fox, Assistant Administrator, U.S. Env't Prot. Agency, Addressing PFAS
Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs (December 5,
2022), at 2 [hereinafter "EPA's PFAS NPDES Guidance"], Attachment 16.

I. DAK discharges 1,4-dioxane and PFAS, chemicals linked to cancer.
DAK owns and operates an industrial facility in Fayetteville, North Carolina, which
consists of three manufacturing operations. DAK's Resins Plant manufactures polyester pellets
through a polymerization process that produces polyester resin.12 DAK also operates a Batch
Plant (which it acquired from DuPont in 1975) to produce polyethylene terephthalate ("PET")
polymer chips to be sold for use in the textile or plastics industries.13 At the same site, Clear Path
Recyclinga joint venture between DAK and Shaw Industries Group 14 operates a recycling
facility that produces "bottle flake," a product that can be used in textile manufacturing, packing,
and packaging products.15 All three of these facilities result in the production of wastewater that
is run through an onsite wastewater treatment plant and is ultimately discharged into the Cape
Fear River.16 The sludge produced during the wastewater treatment process is disposed of in the
Sampson County landfill or through a commercial contractor. 17
In its permit application, DAK explains that it plans to expand production of both its
resins manufacturing (at the resins and batch plant) and its plastics recycling operations.18 The
planned expansion will result in increased wastewater discharges from a permitted 0.5 million
gallons per day ("MGD") to 0.764 MGD.19
Both 1,4-dioxane and PFAS are used or produced in the manufacture of polyester resins,
including PET, as well as the operations of certain plastic recycling. Unsurprisingly, data
collected over the past five years shows that DAK's wastewater contains high levels of both
categories of toxic chemicals. The Department has known of DAK's industrial chemical
pollution for a half -decade but, in the interim, has refrained from controlling these discharges.
a. DAK discharges 1,4-dioxane, a human carcinogen.
DAK discharges wastewater containing 1,4-dioxane, a chemical associated with cancer.20
1,4-dioxane is a clear, man-made chemical that is a byproduct of many industrial processes.21
Relevant here, 1,4-dioxane is a direct "byproduct in the manufacture of polyethylene
terephthalate (PET) plastic,"22 the manufacturing process DAK operates in Fayetteville, North
Carolina.23 The chemical is toxic to humans,24 causing liver and kidney damage at incredibly
12 DAK Permit Application, supra note 2 at PDF pg. 4.
13 Id. at PDF pg. 7.
14 Clear Path Recycling Starts New PET Recycling Facility, Recycling Today (Sept. 2010), Attachment 17.
1s DAK Permit Application, supra note 2 at PDF pgs. 4-5, 8-11.
16 Id. at PDF pgs. 13, 81.
17 Id. at PDF pg. 14.
18 Id. at PDF pg. 1, 80.
19 Compare DAK Permit Application, supra note 2 at PDF pg. 80 to id. at PDF pg. 81 (showing an increase in
expected wastewater effluent between 2021 and 2026).
20 See DAK 2018-2023 DMRs, supra note 4; see also Cape Fear Industrial PFAS & 1,4-dioxane Sampling, supra
note 4 at 11.
21 U.S. EnVt Prot. Agency, Technical Fact Sheet— 1,4-Dioxane 1-2 (2017), Attachment 3 [hereinafter "EPA,
Technical Fact Sheet — 1, 4-Dioxane"], Attachment 18.
22 Id. at 2.
23 DAK Permit Application, supra note 2 at PDF pg. 4; see also DAK Draft Permit Fact Sheet, supra note 9 at 2.
24 EPA, Technical Fact Sheet —1,4-Dioxane, supra note 21 at 1.

low levels .2' As a result of the harms caused by 1,4-dioxane, EPA established a drinking water
health advisory with an associated lifetime cancer risk of one -in -one -million people at a
concentration of 0.35 parts per billion ("ppb").26 The State of North Carolina has similarly
determined that 1,4-dioxane is toxic and poses a cancer risk at levels higher than 0.35 ppb.27
The Department has known of DAK's 1,4-dioxane pollution since at least 2018,28 when
the agency first required the company to collect and report monthly samples.29 Since August
2018, DAK's average daily discharge of 1,4-dioxane has exceeded 5,300 ppb, a number more
than 15,000 times what the state considers safe.30 Over the past five years, DAK's discharge has
reached concentrations as high as 22,000 ppb 31 and has exceeded 10,000 ppb in nearly 20
percent of the samples collected.32 Concerningly, since 2020, DAK has increased the amount of
1,4-dioxane it dumps into the Cape Fear River,33 a change which is unfortunately reflected in
DAK's discharge monitoring reports. By way of illustration, in 2020, DAK's average discharge
was 2,063 ppb.34 But since January 2021, DAK's average discharge has exceeded 5,600 ppb,
with individual samples reaching as high as 15,300 ppb.35
While the information about DAK's 1,4-dioxane pollution made available to the
Department during the permit application process36 demonstrates extreme pollution flowing from
DAK's facility, it is possible that DAK's infrequent monitoring underrepresents the full scope of
1,4-dioxane being released into the Cape Fear River. As the Department has seen at industries
and wastewater treatment plants across the state, the release of 1,4-dioxane fluctuates depending
25 Id.; U.S. Env't Prot. Agency, Integrated Risk Information System, Chemical Assessment Summary: 1,4,-dioxane 2
htt2s:Hiris.epa.gov/static/pdfs/0326 summM.pdf (Aug. 11, 2010); Agency for Toxic Substances and Disease
Registry, 1,4-dioxane — Tox FAQs CASE # 123-91-1 (Apr. 2012), available at
ho2s://www.atsdr.cdc.gov/toxfags/tfactsl87.pdf; U.S. Dep't of Health and Human Servs., Report on Carcinogens,
Fifteenth Edition 1,4-dioxane CAS No 123-91-1 (2021), available at
https://ntp.niehs.nih. og v/ntp/roc/content/profiles/dioxane.pdf.
26 2018 Edition of the Drinking Water Standards and Health Advisories, EPA OFFICE OF WATER 4 (2018),
https://www.epa.gov/Ustem/files/documents/2022-01/dwtable2Ol8.pdf; EPA, Technical Fact Sheet-1,4-Dioxane,
supra note 21 at 3.
2' N.C. Div. of Water Res., 1, 4-dioxane Monitoring in the Cape Fear River Basin of North Carolina: An Ongoing
Screening, Source Identification, and Abatement Verification Study 2 (2017), Attachment 19 (affirming EPA's
conclusions); see also Managing Emerging Compounds in Water, N.C. Dep't of Env't Quality,
https://www. deq.nc. gov/news/key-issues/emerging-compounds/managing-emerging-compounds-
water#GroundwaterandSurfaceWaterQualityStandardsActions-3956 (last visited May 22, 2023); N.C. Dep't of
Env't Quality, Div. Water Res., Surface Water Quality Standards, Criteria & In -Stream Target Values (2019)
(stating that the one -in -one million cancer risk for 1,4-dioxane is 0.35 ppb), Attachment 20.
26 It's worth noting that DAK has reported that it releases 1,4-dioxane into the water on the toxics release inventory
since at least 2012. See TRI Toxics Tracker, U.S. ENV'T PROT. AGENCY,
hLtps:Hedgp.epa.gov/public/extensions/TRIToxicsTracker/TRIToxicsTracker.httnl#continue (last visited May 10,
2023); see also Dak Americas, 2012-2021 TRI Water Releases Summary (2023), Attachment 21 (spreadsheet pulled
from TRI Toxics Tracker on May 2, 2023 summarizing DAK's releases of 1,4-dioxane by poundage per year).
2'N.C. Dep't of Env't Quality, Final NPDES Permit Renewal NC0003719 (June 18, 2018), at 5.
30 DAK 2018-2023 DMRs, supra note 4; Cape Fear Industrial PFAS & 1,4-dioxane Sampling, supra note 4 at 11.
31 DAK 2018-2023 DMRs, supra note 4 at PDF pg. 14 (1,4-dioxane concentration on September 30, 2018).
32 See generally id.
33 See 2012-2021 TRI Water Releases Summary, supra note 28 (explaining in 2020, DAK released 1,892 pounds of
1,4-dioxane and in 2021, the company released 2,611 pounds).
34 DAK 2018-2023 DMRs, supra note 4; Cape Fear Industrial PFAS & 1,4-dioxane Sampling, supra note 4 at 11.
35 DAK 2018-2023 DMRs, supra note 4; Cape Fear Industrial PFAS & 1,4-dioxane Sampling, supra note 4 at 11.
36 DAK Permit Application, supra note 2 at PDF pg. 273-591.
al

on the timing of manufacturing processes.37 If samples are collected infrequently, it's possible
(and likely) that the data will miss large slugs of the pollution. The extreme fluctuation in DAK's
reporting —ranging from 369 ppb to 22,000 ppb—emphasizes this concern.38 It's therefore
possible that DAK's pollution is far more concerning than previously understood.
b. DAK discharges PFAS, a class of chemicals known to cause harm to human
health and the environment.
DAK's permit application materials do not contain information about PFAS'39 but in
2019, the Department instructed DAK and other municipal and industrial dischargers in the Cape
Fear River Basin to collect PFAS samples over three consecutive months.40 The results of that
sampling confirm that DAK's wastewater contains PFAS at concentrations as high as 306 parts
per trillion ("ppt").41
PFAS are a group of man-made chemicals manufactured and used broadly by industry
since the 1940s.42 PFAS pose a significant threat to human health at extremely low
concentrations. Two of the most studied PFAS—perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonate ("PFOS")—are bioaccumulative and highly persistent in humans.43
These chemicals build up in the human body, and have been shown to cause developmental
effects to fetuses and infants, kidney and testicular cancer, liver malfunction, hypothyroidism,
high cholesterol, ulcerative colitis, obesity, decreased immune response to vaccines, reduced
hormone levels, delayed puberty, and lower birth weight and size.44 Recent literature also
confirms PFAS exposure can result in decreased fertility in women.45 And because of their
impacts on the immune system, PFAS can also exacerbate the effects of Covid-19.46 Studies
show that exposure to mixtures of different PFAS can worsen these health effects.47 Given these
harms, EPA in June 2022 established interim updated lifetime health advisories for PFOA and
37 See, e.g., City of High Point, Discharge Monitoring Report (Mar. 2023), Attachment 22 (indicating that 1,4-
dioxane discharges ranged from 2.16 ppb to 123 ppb within 20 days of sample collection).
38 DAK 2018-2023 DMRs, supra note 4.
39 See generally DAK Permit Application, supra note 2 (not disclosing information about PFAS discharges).
41 See Letter from Linda Culpepper, Director, N.C. Division of Water Res. re PFAS and 1,4-dioxane sampling (Apr.
30, 2019), Attachment 23.
41 Cape Fear Industrial PFAS & 1,4-dioxane Sampling, supra note 4 at 11.
42 Lifetime Drinking Water Health Advisories for Four Perfluoroalkyl Substances, 87 Fed. Reg. 36,848, 36,849
(June 21, 2022); Our Current Understanding of the Human Health and Environmental Risks of PFAS, U.S. ENV'T
PROT. AGENCY, h1t2s://perma.cc/V6PX-2PNK (last visited Mar. 8, 2023).
4187 Fed. Reg. at 36,849; U.S. Env't Prot. Agency, Interim Drinking Water Health Advisory: Perfluorooctanoic
Acid (PFOA) CASRN 335-67-1 (June 2022), at 3-4, Attachment 24; U.S. Env't Prot. Agency, Interim Drinking
Water Health Advisory: Perfluorooctane Sulfonic Acid (PFOS) CASRN 1763-23-1 (June 2022), at 3-4, available at
Attachment 25.
44 Arlene Blum et al., The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFASs), 123 ENV'T HEALTH
PERSP. 5, A 107 (May 2015); U.S. Env't Prot. Agency, Drinking Water Health Advisories for PFAS: Fact Sheet for
Communities, at 1-2 (June 2022), available at h12s://perma.cc/T7FQ-EKD6.
41 Nathan J. Cohen, Exposure to Perfluoroalkyl Substances and Women's Fertility Outcomes in a Singaporean
Population -Based Preconception Cohort, 873 Sci. TOTAL ENv'T 162267 (May 15, 2023).
46 See Lauren Brown, Insight: PFAS, Covid-19, and Immune Response —Connecting the Dots, BLOOMBERG LAW
(July 13, 2020, 4:00 AM), https://perma.cc/QM9H-7ZT6.
47 Emma V. Preston et al., Prenatal Exposure to Per- and Polyfluoroalkyl Substances and Maternal and Neonatal
Thyroid Function in the Project Viva Cohort: A Mixtures Approach, 139 ENV'T INT'L 1 (2020),
https://perma.cc/DJK3-87SN.
5

PFOS in drinking water of 0.004 parts per trillion ("ppt") and 0.02 ppt, respectively.48 These
health advisories demonstrate that no level of these chemicals are safe.
Epidemiological studies show that many of the negative health outcomes associated with
PFOA and PFOS can result from exposure to other PFAS, including, but not limited to,
perfluorohexane sulfonic acid ("PFHxS" ),49 perfluorobutanesulfonic acid ("PFBS"),50
perfluorobutanoic acid ("PFBA"),51 perfluorohexanoic acid ("PFHxA"),52 perfluorononanoic
acid ("PFNA"),53 perfluorodecanoic acid ("PFDA"),54 and hexafluoropropylene oxide dimer acid
("GenX Chemicals").55
Building upon its understanding of the harms caused by PFAS, on March 14, 2023, EPA
proposed national drinking water standards for six PFAS compounds.56 The drinking water
standards, once finalized, will provide enforceable limits on the concentration of PFAS that can
be present in drinking water systems. As drafted, EPA proposes to limit concentrations of PFOA
and PFOS in drinking water systems to below 4 ppt, with a public health goal of 0 ppt.57 EPA
also proposed to limit PFNA, PFBS, PFHxS, and GenX as a mixture, utilizing a formula called a
hazard index.58 In light of the proposed drinking water standards, it is clear we must prevent as
much of this pollution from entering our rivers, creeks, and streams as possible.
48 87 Fed. Reg. at 36,848-49.
49 U.S. Env't Prot. Agency, DRAFT Systematic Review Protocol for the PFBA, PFHxA, PFHxS, PFNA, and PFDA
(anionic and acid forms) IRIS Assessments (updated Jan. 2021), at 2-22, ho2s://perma.cc/32DL-AAOK [hereinafter
"DRAFT Toxicological Data PFBA, PFHxA, PFHxS, PFNA, and PFDA"] (explaining that studies indicate that
PFHxS is associated with developmental, endocrine, hepatic, immune, reproductive, and urinary effects); Minn.
Dep't of Health, Toxicological Summary for: Perfluorohexane sulfonate (Aug. 2020), at 7 hLtps://penna.cc/4CWG-
9VQB (stating that exposure to PFHxS has been associated with detrimental endocrine and reproductive impacts).
so U.S. Env't Prot. Agency, Drinking Water Health Advisory: Perfluorobutane Sulfonic Acid (CASRN 375-73-5)
and Related Compound Potassium Perfluorobutane Solfonate (CASRN 29420-49-3) (June 2022),
ho2s://perma.cc/X74T-EQ83 (explaining that literature confirms exposure to PFBS impacts to thyroid, reproductive
systems, development, kidneys, liver, and lipid and lipoprotein homeostasis).
51 U.S. Env't Prot. Agency, IRIS Toxicological Review of Perfluorobutanoic Acid (PFBA, CASRN 375-22-4) and
Related Salts (Dec. 2022), at xii, https://perma.cc/HD3F-78VJ (explaining "available evidence indicates that
developmental, thyroid, and liver effects in humans are likely caused by PFBA exposure in utero or during
adulthood").
5' DRAFT Toxicological Data PFBA, PFHxA, PFHxS, PFNA, and PFDA, supra note 49 at 2-22.
51 Id.; N.J. Drinking Water Quality Inst., Health -Based Maximum Contaminant Level Support Document:
Perfluorononanoic acid ("PFNA"), at 35 (June 22, 2015), https://perma.cc/JU9Z-AG9T (explaining exposure to
PFNA has been associated with developmental issues, including neonatal mortality, and liver functions).
5' DRAFT Toxicological Data PFBA, PFHxA, PFHxS, PFNA, and PFDA, supra note 49 at 2-22.
55 U.S. EnVt Prot. Agency, Drinking Water Health Advisory: Hexafluoropropylene Oxide (HFPO) Dimer Acid
(CASRN 13252-13-6) and HFPO Dimer Acid Ammonium Salt (CASRN 62037-80-3), Also Known as "GenX
Chemicals" (June 2022), at vii, https://penna.cc/9F6H-5BBY (explaining that exposure to GenX increases harms to
liver, reproductive, and developmental functions).
56 See PFAS National Primary Drinking Water Regulation Rulemaking, 88 Fed. Reg. at 18,638 (Mar. 29, 2023); see
also Biden-Harris Administration Proposes First -Ever National Standard to Protect Communities from PFAS in
Drinking Water, U.S. ENVT PROT. AGENCY (Mar. 14, 2023), hops://www.epa.gov/newsreleases/biden-harris-
administration-proposes-first-ever-national-standard-protect-communities.
5188 Fed. Reg. at 18,639.
58Id. at 18,639-40.
on

While the harms to human health are extreme, PFAS are also detrimental to wildlife and
the environment. The chemicals have been shown to cause damaging effects in fish,"
amphibians,60 reptiles, 61 mollusks,62 and other aquatic invertebrates 63resulting in
developmental and reproductive impacts, behavioral changes, adverse effects to livers, disruption
to endocrine systems, and weakened immune systems.64
PFAS are extremely resistant to breaking down in the environment.65 Once released, the
chemicals can travel long distances and bio-accumulate in organisms.66 PFAS have been found
in fish tissue across all 48 continental states'67 and PFOS—a particularly harmful PFAS
59 Chen et al., Perfluorobutanesu fonate Exposure Causes Durable and Transgenerational Dysbiosis of Gut
Microbiota in Marine Medaka, 5 ENv'T SCI. & TECH LETTERS 731-38 (2018); Chen et al., Accumulation
of Perfluorobutane Sulfonate (PFBS) and Impairment of Visual Function in the Eyes of Marine Medaka After
a LifeCycle Exposure, 201 AQUATIC TOXICOLOGY 1-10 (2018); Du et al., Chronic Effects of Water -Borne PFOS
Exposure on Growth, Survival and Hepatotoxicity in Zebrafish: A Partial Life -Cycle Test, 74 CHEMOSPHERE 723-29
(2009); Hagenaars et al., Structure Activity Relationship Assessment of Four Perfluorinated Chemicals Using a
Prolonged Zebrafish Early Life Stage Test, 82 CHEMOSPHERE 764-72 (2011); Huang et al., Toxicity, Uptake
Kinetics and Behavior Assessment in Zebrafish Embryos Following Exposure
to Perfluorooctanesulphonicacid (PFOS), 98 AQUATIC TOXICOLOGY 139-47 (2010); Jantzen et al., PFOS, PFNA,
and PFOA Sub -Lethal Exposure to Embryonic Zebrafish Have Different Toxicity Profiles in terms of
Morphometrics, Behavior and Gene Expression, 175 AQUATIC TOXICOLOGY 160-70 (2016); Liu et al., The Thyroid -
Disrupting Effects of Long -Term Perfluorononanoate Exposure on Zebrafish (Danio rerio),
20 ECOTOXICOLOGY 47-55 (2011); Chen et al., Multigenerational Disruption of the Thyroid Endocrine System in
Marine Medaka after a Life -Cycle Exposure to Perfluorobutanesulfonate, 52 ENv'T SCL & TECH. 4432-39
(2018); Rotondo et al., Environmental Doses of Perfluorooctanoic Acid Change the Expression of Genes in Target
Tissues of Common Carp, 37 ENv'T TOXICOLOGY & CHEM. 942-48 (2018).
6' Ankley et al., Partial Life -Cycle Toxicity and Bioconcentration Modeling of Perfluorooctanesulfonate in the
Northern Leopard Frog (Rana Pipiens), 23 ENv'T TOXICOLOGY & CHEM. 2745 (2004); Cheng et al., Thyroid
Disruption Effects of Environmental Level Perfluorooctane Sulfonates (PFOS) in Xenopus Laevis,
20 ECOTOXICOLOGY 2069-78 (2011); Lou et al., Effects of Perfluorooctanesulfonate and Perfluorobutanesulfonate
on the Growth and Sexual Development of Xenopus Laevis, 22 ECOTOXICOLOGY 1133-44 (2013).
61 Guillette et al., Blood Concentrations of Per- and Polyfluoroalkyl Substances Are Associated with Autoimmune-
like Effects in American Alligators From Wilmington, North Carolina, FRONTIER TOXICOLOGY 4:1010185 (Oct. 20,
2022).
6' Liu et al., Oxidative Toxicity of Perfluorinated Chemicals in Green Mussel and Bioaccumulation Factor
Dependent Quantitative Structure -Activity Relationship, 33 ENv'T TOXICOLOGY & CHEM. 2323-32 (2014); Liu et
al., Immunotoxicity in Green Mussels under Perfluoroalkyl Substance (PFAS) Exposure: Reversible Response and
Response Model Development, 37 ENv'T TOXICOLOGY & CHEM. 1138-45 (2018).
63 Houde et al., Endocrine -Disruption Potential of Perfluoroethylcyclohexane Sulfonate (PFECHS) in Chronically
Exposed Daphnia Magna, 218 ENV'T POLLUTION 950-56 (2016); Liang et al., Effects of Perfluorooctane Sulfonate
on Immobilization, Heartbeat, Reproductive and Biochemical Performance of Daphnia Magna,
168 CHEMOSPHERE 1613-18 (2017); Ji et al., Oxicity of Perfluorooctane Sulfonic Acid and Perfluorooctanoic Acid
on Freshwater Macroinvertebrates (Daphnia Magna and Moina Macrocopa) and Fish (Oryzias Latipes), 27 ENv'T
TOXICOLOGY & CHEM. 2159 (2008); MacDonald et al., Toxicity of Perfluorooctane Sulfonic Acid and
Perfluorooctanoic Acid to Chironomus Tentans, 23 ENv'T TOXICOLOGY & CHEM. 2116 (2004).
64 See supra notes 59-63.
61 Carol F. Kwiatkowski, et al., Scientific Basis for Managing PFAS as a Chemical Class, ENv'T SCL & TECH.
LETTERS 8-9 (2020).
66 See What are PFAS?, AGENCY FOR Toxic SUBSTANCES AND DISEASE REGISTRY,
https://www.atsdr.cdc.aoy/pfas/health-effects/overview.html (last visited May 22, 2023); see also Our Current
Understanding of the Human Health and Environmental Risks of PFAS, supra note 42.
61 Nadia Barbo, et al., Locally Caught Freshwater Fish Across the United States Are Likely A Significant Source of
Exposure to PFOS and Other Perfluorinated Compounds, 220 ENV'T RES. 115165 3 (2023), available at
hLtps://penna.cc/Sl38F-C3Y6.
7

compound —is one of the most prominent PFAS found in freshwater fish.68 As a result, the
primarily low-income and minority communities that rely heavily on subsistence fishing have
been found to have elevated PFAS levels in their blood.69 In fact, researchers conclude that
"[w]idespread PFAS contamination of freshwater fish in surface waters in the U.S. is likely a
significant source of exposure to PFOS and potentially other perfluorinated compounds for all
persons who consume freshwater fish, but especially for high frequency freshwater fish
consumers."70
In 2019 DAK's sampling confirmed that the facility discharged PFAS at concentrations
ranging between 177 ppt and 306 ppt.71 DAK's discharge contains PFOA and PFOS at
concentrations as high as 17.7 ppt and 6.91 ppt, respectively.72 The company also releases high
concentrations of PFHxA, PFBS, PFHxS, and perfluoropentanoic acid ("PFNA").73 And while
these levels are alarming, it is possible that DAK's PFAS pollution is far more extreme than
presently understood. Scientists have confirmed that some PFAS (called PFAS precursors)
cannot be detected by targeted sampling at the effluent pipe, but —once oxidized like occurs in
the natural environment —form detectable PFAS.74 Because this occurs naturally, the very
limited set of targeted PFAS data available to the Department and the public likely
underrepresents the full scope of DAK's PFAS pollution into the Cape Fear River.75
Even though the most recent, publicly available sampling for PFAS was completed in
2019, its almost certain that these chemicals remain present in DAK's wastewater. DAK's
industrial processes includes the manufacture of polyester pellets at its resin and batch plants
(SIC Code 2821), and the recycling of certain plastic materials to create bottle flake (SIC Code
5162).76 EPA has acknowledged that industries that work with organic chemicals, plastics, and
synthetic fibers —like DAK—are a suspected point source category for PFAS pollution, 77 and
lists one of the aforementioned SIC Codes as industries likely to handle PFAS.78 EPA notes that
companies, like DAK, "use PFAS feedstocks as polymerization or processing aids or in the
66 Id. at 4.
69 Patricia A. Fair et al., Perfluoralkyl Substances (PFASs) in Edible Fish Species from Charleston Harbor and
Tributaries, South Carolina, United States: Exposure and Risk Assessment, 171 ENv'T. RES. 266, 273-75 (April
2019), https://perma.cc/7976-XAVU; Chloe Johnson, Industrial chemicals in Charleston Harbor taint fish — and
those who eat them, POST & COURIER (June 4, 2022), htt2s://perma.cc/Z5TM-MB83.
70 Barbo, supra note 67 at 9.
71 Cape Fear Industrial PFAS & 1,4-dioxane Sampling, supra note 4 at 11.
72 Id.
73 Id.
74 Erika F. Houtz, Oxidative Conversaion as a Means of Detecting Precursors to Perfluoroalkyl Acids in Urban
Runoff, 46 ENV'T SCI. & TECH 9342 (2012). Mohamed Ateia, et al., The Overlooked Shore- and Ultrashort-Chain
Poly- and Perfluorinated Substances: A Review, 220 CHEMOSPHERE 866 (Jan. 4, 2019). Total Oxidizable Precursor
(TOP) Assay —Best Practices, Capabilities and Limitations for PFAS Site Investigation and Remediation, U.S.
ENV'T PROT. AGENCY, hLtps:Hcfpub.epa. ovg /si/si public_ record_Report.cfm?Lab=CESER&dirEntry1d=357816
(last visited May 18, 2023).
75 Houtz, supra note 74.
76 Dak Permit Application, supra note 2 at PDF pg. 17.
77 U.S. Env't Prot. Agency, Multi -Industry Per- and Polyfluoroalkyl Substances (PFAS) Study — 2021 Preliminary
Report (Sept. 2021), at 5-1 [hereinafter "EPA Preliminary Industry Report"], Attachment 26; U.S. Env't Prot.
Agency. Effluent Guidelines Program Plan 15 (Jan. 2023), at 7-3, Attachment 27.
76 U.S. Env't Prot. Agency, Metadata for Data Sources within PFAS Analytic Tools (Jan. 2023), at 34-37,
Attachment 28 (listing "Potential PFAS-Handling Industry Sectors").
N.

production of plastic, rubber, resin, coatings, and commercial cleaning products."79 Given these
characteristics, EPA has found that this industry category is likely to generate wastewater
containing long -chain and short -chain PFAS including those that are well -studied and known to
be harmful to humans.80
IL DAK's pollution threatens downstream drinking water supplies as well as
commercial and recreational fishing opportunities.
PFAS and 1,4-dioxane do not break down in the environment and are not removed by
conventional treatment technology.8' That means that if released upstream, these chemicals can
and will pollute downstream recreational waters and drinking water supplies. This has been
confirmed before by drinking water crises in North Carolina. PFAS pollution from the Chemours
Fayetteville Works Facility has contaminated drinking water intakes nearly 80 miles
downstream'82 and 1,4-dioxane pollution from the city of Greensboro's wastewater plant has
reached the intake for Pittsboro approximately 50 miles downstream.83
DAK's discharge is less than 10 river miles upstream of the nearest water supply
boundary.84 Further down the Cape Fear River lies the drinking water intakes for the city of
Wilmington and surrounding Brunswick and Pender counties. Each of these water utilities
reports PFAS and 1,4-dioxane in their drinking water supplies. Cape Fear Public Utilities
Authority, for example, recently reported their drinking water supply contains 1,4-dioxane at
concentrations as high as 4 ppb and total PFAS at concentrations nearing 200 ppt.85 Brunswick
County86 similarly reports 1,4-dioxane and PFAS in its water supply and Pender County87
reports the presence of PFAS.
The Cape Fear River downstream of DAK is also a popular recreational and fishing
destination. As one of the most biologically diverse rivers in the country, the Cape Fear River
hosts a variety of ecologically and recreationally important fish species, including largemouth
bass, spotted bass, sunfish (particularly bluegill and redbreast), catfish, American shad, and
79 EPA Preliminary Industry Report, supra note 77 at 5-2.
80 Id. at 5-8 to 5-9.
81 See What are PFAS?, supra note 66; see also Our Current Understanding of the Human Health and
Environmental Risks of PFAS, supra note 42; EPA, Technical Fact Sheet —1,4-Dioxane, supra note 21, at 1-2; see
also Yuyin Tang and Xinwei Mao, Recent Advances in 1,4-dioxane Removal Technologies for Water and
Wastewater Treatment, 15 WATER 1535 (2023), available at htt2s://www.mdpi.com/2073-4441/15/8/1535.
sz See Lisa Sorg, Breaking: New Analysis Indicates That Toxics Were Present in Wilmington Drinking Water at
Extreme Levels, N.C. POLICY WATCH (Oct. 9, 2019), https://pulse.ncpolicyffatch.org/2019/10/09/breaking new-
analysis-indicates-that-toxics-were-present-in-wilmington-drinking-water-at-extreme-levels/#sthash.OtzCYiv3. dpbs.
83 See Lisa Sorg, PW Special Report Part Two: Lax Local Regulation Allows Toxic Carcinogen to Infiltrate
Drinking Water Across the Cape Fear River Basin, N.C. POLICY WATCH (July 23, 2020),
https://ncpolicyffatch.com/2020/07/23/pw-special-report-part-two-lax-local-regulation-allows-toxic-carcino eg n to -
infiltrate -drinking -water -across -the -cape -fear -river -basin/.
" 15A N.C. Admin. Code 213.0311(p); see also NC Surface Water Classifications, supra note 3.
85 Latest PFAS Test Results, CAPE FEAR PUB. UTIL. AUTx., htt2s://www.cfpua.org/779/Latest-PFAS-Test-Results
(last visited May 10, 2023); Emerging Contaminants, CAPE FEAR PUB. UTIL. AUTx.,
htt2s://www.cfpua.org/761/Emergina-Compounds (last visited May 10, 2023).
86 County of Brunswick, Water Quality Report — 2021 (2022), at 6-7, available at
https://www.brunswickcog4bmc. goy/wp-content/uploads/2022/04/2021-CCR-for-Website.pdf.
17 Pender County Util., 2021 Annual Water Quality Report (2022), at 16-17, available at
https://www.pendercountync. gov/utl/wp-content/uploads/sites/ 14/2022/06/Final-2021-CCR-.pdf.
9

hickory shad.88 According to the U.S. Department of Commerce, fisheries in the Cape Fear River
support upward of $14.2 million in annual income and $35.7 million in business sales.89 The
Cape Fear River also plays an essential role in the preservation of endangered species.
Endangered Atlantic and shortnose sturgeon, for instance, spawn in the upper portions of the
Cape Fear River. In fact, less than 40 miles downstream of DAK's discharge, the Cape Fear
River is protected as Atlantic sturgeon critical habitat —meaning the river serves an essential role
in the continued existence of the species.90 In addition, the Southeast Conservation Adaption
Strategy designates the portion of the river that DAK discharges into as "highest priority,"
meaning that the natural and cultural resources present in the river are of such significance that
conservation and protection in the area would yield significant impact.91
Dating back to at least 2013, researchers have documented PFAS contamination in fish
along the Cape Fear River.92 Most recently, the Department has documented extreme PFAS in
fish caught downstream of DAK's discharge.93 Fish, including bluegill sunfish, largemouth bass,
blue catfish, flathead catfish, redear sunfish, and American shad, have been documented to
contain elevated levels of PFOS, PFNA, and PFHxS, among other PFAS, in their tissue.94
III. DAK's 1,4-dioxane and PFAS pollution reaches beyond its direct discharges.
Unfortunately, DAK's pollution is not limited to direct discharges into the Cape Fear
River. DAK produces sludge as a byproduct of its wastewater treatment process.95 The sludge
produced is either disposed of in the Sampson County Landfill in Roseboro, North Carolina, or
sent to McGill Environmental, an industrial composting facility in New Hill, North Carolina.96
Because the wastewater treatment system DAK utilizes cannot remove 1,4-dioxane or PFAS, it
is likely that the sludge produced contains both categories of toxic chemicals.
The pollution in DAK's sludge reaches the landfill and surrounding environment.
Sampling results at the Sampson County landfill demonstrate that groundwater downgradient of
88 Fishing Opps in the Coastal Region of NC, N.C. WILDLIFE RES. COMM'N,
hops://www.ncwildlife.or /Fg ishing/Where-to-
Fish/Fishing_Onns in theCoastal _Region _of NC#:—:text=The%20Cape%2OFear%2ORiver%20provides,between
%201%C2%BD%20to%203%20pounds (last visited May 22, 2023); Kyle T. Rachels, Fisheries Resources of the
Cape Fear River, N.C. WILDLIFE REs. COMM'N (2021), available at
hops://www.ncwildlife. org/Portals/0/Fishing/documents/2021 /Fisheries-Resources-of-the-Cape-Fear-
River.pdf?ver=1 wTKmylDzckZMSdwMIXklw%3D%3D.
89 NOAA Fisheries, Community Benefits of Conserving the Cape Fear River Basin (2017), available at
https:Honslow.ces.ncsu.edu/wp-content/uploads/2017/01 /CapeFear-final.pdf?fwd=no.
" Endangered and Threatened Species; Designation of Critical Habitat for the Endangered New York Bight,
Chesapeake Bay, Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon and the
Threatened Gulf of Maine Distinct Population Segment of Atlantic Sturgeon, 82 Fed. Reg. 39,160, 39,223-22,
39,227 (Aug. 17, 2017).
" The Southeast Conservation Blueprint, SE. CONSERVATION ADAPTATION STRATEGY, https://secas-
fws.hub.arc isg com/pages/blueprint (last visited May 22, 2023).
92 U.S. Env't Prot. Agency, National Rivers and Streams Assessment 2013-2014: A Collaborative Survey (2020),
availableathlWs://www.epa.,gov/system/files/documents/2021-10/nrsa_13-14 roort_508 ci 2021-10-15.pdf.
" Frannie Nilsen, N.C. Dep't of Env't Quality, 2022 Water and Fish Collection Project — Status Update (Dec. 5,
2022), at slides 12-24, Attachment 29.
94 Id.
95 DAK Permit Application, supra note 2 at PDF 14.
96 Id.
10

the landfill is contaminated with 1,4-dioxane above the North Carolina groundwater standard of
3 ppb.97 1,4-dioxane has also been detected in the surface water sampling sites surrounding the
landfill.9' In addition, the leachate from that landfill is sent to Harnett County and the city of
Lumberton,99 both of which document elevated levels of PFAS and 1,4-dioxane in the effluent
leaving their municipal WWTPs.loo The community adjacent to the Sampson County landfill is
comprised predominantly of people of color, and the population experiences lower income and
education rates than the state average. 101 The community additionally suffers from air toxics
pollution higher than both the state and national average —compounding on the fear associated
with a leaking landfill.102
IV. The Department must require DAK to disclose any discharges of PFAS.
DAK's permit application materials contain sampling data for 1,4-dioxane but do not
disclose that the facility also discharges PFAS. As discussed above, however, sampling
conducted in 2019 confirms the company is, in fact, releasing the toxic chemicals into the Cape
Fear River. Because DAK did not disclose PFAS in this permit application103 (or its earlier
applications 104), it is not authorized to release the chemicals, and any discharge of PFAS is
unlawful.
The Clean Water Act prohibits the discharge of any pollutant, including PFAS and 1,4-
dioxane, without a NPDES permit.105 The discharge of a specific pollutant (or group of
pollutants) cannot be permitted if it is not disclosed in a NPDES permit application. For decades,
EPA has stressed the need for disclosure of pollutants during the permitting process:
[D]ischargers have a duty to be aware of any significant pollutant levels in their
discharge. [... ] Most important, [the disclosure requirements] provide the
information which the permit writers need to determine what pollutants are likely
to be discharged in significant amounts and to set appropriate permit limits. [...]
[P]ermit writers need to know what pollutants are present in an effluent to
determine appropriate permit limits in the absence of applicable effluent
guidelines.106
97 Golder Associates NC, Inc., First Semi -Annual 2022 Sampling Event: Sampson County Disposal, LLC (July 19,
2022), at Table 4, Table 6, Attachment 30.
98 Id. at Table 8.
99 Hart & Hickman, North Carolina Collective Study Report: Collective Study of PFAS and 1,4-dioxane in Landfill
Leachate and Estimated Influence on Wastewater Treatment Plant Facility Influent (Mar. 10, 2020), at Table 2,
Attachment 31.
'00 N.C. Dep't of Env't Quality, Cape Fear Municipal PFAS & 1,4-dioxane Sampling (2020), at 17, Attachment 32
(showing PFAS and 1,4-dioxane sampling results for North Harnett Regional WWTP); Verdantas, Phoenix
Lumberton Industrial Investors, LLC NPDES Permit Application (Dec. 19, 2022), at PDF page 247-50 (containing
PFAS sampling collected by the Department at Lumberton WWTP, NPDES No. NC0024571), Attachment 33.
'0' U.S. Env't Prot. Agency, EJScreen Report Sampson County Landfill (Jan. 11, 2023), Attachment 34.
'02 Id.
103 See generally DAK Permit Application, supra note 2.
104 See, e.g., DAK Americas, LLC NPDES Permit No. NC0003719 Renewal Application (May 6, 2016), Attachment
35.
105 33 U.S.C. § 1311(a).
'01 Consolidated Permit Application Forms for EPA Programs, 45 Fed. Reg. 33,526-31 (May 19, 1980).
11

In December 2022, EPA confirmed that these disclosure requirements apply to PFAS,
stating that "no permit may be issued to the owner or operator of a facility unless the owner or
operator submits a complete permit application" providing all information "that the permitting
authority may reasonably require to assess the discharges of the facility" including information
regarding PFAS.107 The Department has similarly made clear that disclosure of toxic PFAS is
required by the Clean Water Act and state water quality laws. In its enforcement action against
Chemours for the company's discharge of PFAS into the Cape Fear River, the agency concluded
that because Chemours had not disclosed its PFAS pollution, the discharges violated the law.10s
Disclosure is considered adequate under the Clean Water Act when the applicant
provides enough information for a permitting agency to "be[] able to judge whether the discharge
of a particular pollutant constitutes a significant threat to the environment."log To meet this
burden, an applicant must include all relevant information, including the concentration, volume,
and frequency of the discharge.110 The Clean Water Act places the burden of disclosure on the
permit applicant because they are in the best position to know what is in their discharge.111
Importantly, if a NPDES permit applicant does not adequately disclose its release of a
pollutant, the applicant does not have the approval to discharge the pollutant.112 The EPA
Environmental Appeals Board's decision in In re: Ketchikan Pulp Company emphasized this
result,113 and that decision has been adopted by the Fourth Circuit.114 The Department
recognized this is the law in its enforcement action against Chemours,115 and other states have
reached the similar conclusion.116
107 EPA's PFAS NPDES Guidance, supra note 11 at 2.
'os Amended Complaint, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 6-7 (N.C. Super. 2018)
(citing 33 U.S.C. § 1342(k); Piney Run Pres. Assn v. Cty. Commis of Carroll Cty., Maryland, 268 F.3d. 255, 265
(4th Cir. 2001)) [hereinafter "DEQ v. Chemours, Amended Complaint"], Attachment 36.
'09 Piney Run, 268 F.3d. at 268 ("Because the permitting scheme is dependent on the permitting authority being able
to judge whether the discharge of a particular pollutant constitutes a significant threat to the environment, discharges
not within the reasonable contemplation of the permitting authority during the permit application process, whether
spills or otherwise, do not come within the protection of the permit shield.").
to See In re Ketchikan Pulp Co., 7 E.A.D. 605 (EPA) (1998) ("In explaining the provisions of 40 C.F.R. §
122.53(d)(7)(iii), which required dischargers to submit quantitative data relating to certain conventional and
nonconventional pollutants that dischargers know or have reason to believe are present in their effluent, the [EPA]
stated: `permit writers need to know what pollutants are present in an effluent to determine appropriate limits in the
absence of effluent guidelines."').
"' S. Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560, 566 (4th Cir. 2014).
("The statute and regulations purposefully place the burden of disclosure on the permit applicant.").
"Z See In re Ketchikan Pulp Co., 7 E.A.D. 605; Piney Run, 268 F.3d. at 268; S. Appalachian Mountain Stewards,
758 F.3d at 567.
13 See In re Ketchikan Pulp Co., 7 E.A.D. 605.
114 Piney Run, 268 F.3d. at 268 ("The Ketchikan decision, therefore, made clear that a permit holder is in compliance
with the [Clean Water Act] even if it discharges pollutants that are not listed in its permit, as long as it only
discharges pollutants that have been adequately disclosed to the permitting authority. [... ] To the extent that a permit
holder discharges a pollutant that it did not disclose, it violates the NPDES permit and the [Clean Water Act].").
"s DEQ v. Chemours, Amended Complaint, supra note 108 at 6-7 (N.C. Super. 2018) (citing 33 U.S.C. § 1342(k);
Piney Run, 268 F.3d at 265).
16 For example, the Tennessee Department of Environment and Conservation has made clear in at least one NPDES
permit that undisclosed discharges of PFAS are unpermitted, stating, "The facility's application did not report any
12

Because DAK failed to disclose that it discharges PFAS, each and every release of PFAS
into the Cape Fear River is a violation of the Clean Water Act subject to enforcement by the
Department or a citizen suit brought pursuant to 33 U.S.C. § 1365.
For the purposes of this draft permit, comprehensive disclosure is vitally important. The
Department knows the facility releases PFAS because the sampling it ordered in 2019 proved as
much. What the Department and the public do not know, however, is how much PFAS DAK
releases and what impact the discharge has on the Cape Fear River. As discussed above, limited
sampling taken nearly four years ago is likely not indicative of the levels of pollution DAK is
releasing today. Moreover, it is possible —if not likely —that DAK's effluent contains PFAS
precursors that, once released into the natural environment, will transform into detectable PFAS,
In order to fully understand the nature of DAK's pollution, the Department must instruct the
company to sample, using a comprehensive analytical method, and disclose the presence of
PFAS in its wastewater discharge.
V. The Department must impose effluent limits to control DAK's 1,4-dioxane and
PFAS pollution.
In December 2022, EPA released guidance instructing state agencies on how to address
PFAS through existing NPDES authorities."' The guidance points to technology -based and
water quality -based effluent limits as effective tools for eliminating toxic pollution at the source
before it reaches our rivers, creeks, and streams. While the PFAS guidance is new, the central
tenets of the Clean Water Act embodied within are well established, grounded in state and
federal law, and pervasive through longstanding NPDES permit writing guidance. The
Department has lawfully applied these tools in other NPDES permits issued across the Cape Fear
River Basin.118 DAK should be treated no differently. The Department must make the following
changes before finalizing DAK's NPDES permit.
a. The Department must analyze technology -based limits for 1,4-dioxane and PFAS.
The Clean Water Act and North Carolina rules require permitting agencies to, at the very
least, incorporate technology -based effluent limitations on the discharge of pollutants.119 When
EPA has not issued a national effluent limitation guideline for a particular industry or
pollutant,120 permitting agencies must implement technology -based effluent limits on a case -by -
case basis using their "best professional judgment." 121 EPA has confirmed that technology -based
forms of PFAS as chemicals that there was the potential to discharge. The permittee has no permit shield for the
discharge of PFAS compounds because no such chemicals were disclosed in the permit application or otherwise..."
TDEC, NPDES Permit NO. TN0002330 (2020), Holliston Holdings, LLC, Addendum to Rationale,
https://perma.cc/4RKY-PKFG (emphasis added).
117 EPA's PFAS NPDES Guidance, supra note 11.
118 See, e.g., Chemours Outfall 004 Permit, supra note 6; Sanford WWTP Permit Fact Sheet, supra note 7 at 13-14;
Asheboro WWTP Draft Permit, supra note 8 at 3.
119 40 C.F.R. § 125.3(a) ("Technology -based treatment requirements under section 301(b) of the Act represent the
minimum level of control that must be imposed in a permit..." (emphasis added)); see also 33 U.S.C. § 1311; see
also EPA's PFAS NPDES Guidance, supra note 11 at 2.
120 33 U.S.C. § 1314(b); U.S. Env't Prot. Agency, NPDES Permit Writers' Manual: Chapter 5. Technology Based
Effluent Limitations (Sept. 2010), at 5-14, Attachment 37.
12140 C.F.R. § 125.3(2)(i)(B); see also 33 U.S.C. § 1342(a)(1)(B); 15A N.C. Admin. Code 2B.0406.
13

limits are the "minimum level of control that must be imposed in NPDES permits" and that they
should be calculated for PFAS. 122 The same is true for 1,4-dioxane. In light of these
requirements, the Department's decision to impose lenient monitoring conditions123 instead of
limits violates the law.
The Department is aware of its obligation to impose technology -based limits to address
chemicals like PFAS in NPDES permits as it did so in a permit issued to Chemours last
September. 124 In that permit, the Department implemented "the procedure established in Chapter
5 of USEPA NPDES Permit Writers' Manual" and set limits for perfluoro-2-methoxypropanoic
acid ("PMPA") and perfluoro-2-methoxyacetic acid ("PFMOAA") at concentrations based on
what technology could achieve, which were 10 ppt and 20 ppt, respectively. 1 25 We appreciate
and commend the Department for the limits set forth in Chemours' permit. But Chemours is not
the only company discharging these toxic chemicals. That evaluation should have been done here
for DAK's discharge of PFAS and 1,4-dioxane.
As the Department knows, effective treatment technologies for PFAS are available.
Granular activated carbon is a cost-effective and efficient technology that can reduce PFAS
concentrations to virtually nondetectable levels. A granular activated carbon treatment system at
the Chemours' facility, for example, has reduced PFAS concentrations as high as 345,000 ppt
from a creek contaminated by groundwater beneath the facility to nearly nondetectable
concentrations.126 Here, where DAK's discharge volume is significantly less than Chemours,
treatment would be more affordable. The Department must treat DAK the same way that it
treated Chemours—it must consider the feasibility of using granular activated carbon or similar
technologies to control the PFAS pollution being released from this facility.
As with PFAS, treatment technologies for 1,4-dioxane are available. For instance, the
chemical can be removed using advanced oxidation processes, such as using ultraviolet light in
combination with hydrogen peroxide. 121 Such a process has been used at the Tucson
International Airport Area Superfund Site to remove legacy 1,4-dioxane contamination.12' That
122 EPA's PFAS NPDES Guidance, supra note 11 at 3.
123 DAK Draft Permit, supra note 1 at 3, 5.
124 Chemours Outfall 004 Permit, supra note 6 at 3.
125 Chemours Outfall 004 Permit Fact Sheet, supra note 6 at 13-14.
121 See Parsons, Engineering Report — Old Outfall 002 GAC Pilot Study Results (Sept. 2019), available at
https://www. chemours. com/j a/-/media/files/corporate/ 12e-old-outfal1-2-gac-pilot-report-2019-09-
30.pdPrev=6el242091aa846f888afa895eff80e2e&hash=040CAA7522E3D64B9E5445ED6F96BOFB; see also
Chemours Outfall 003, NPDES No. NC0089915 Discharge Monitoring Reports (2020-2022), available at
https://perma.cc/8YND-XT5M.
12' Arnie C. McElroy, et al., 1,4-Dioxane in drinking water: emerging for 40 years and still unregulated, 7 CURRENT
OPINION IN ENv'T SCIENCE & HEALTH 117, 119 (2019), available at hit 2s:Hagris.fao.or /ag gris-
search/search.do?recordlD=US201900256076; TrojanUV, Update on Emerging Contaminants: 1,4-dioxane:
Advanced Oxidation Processes (2022), available at
hops://cdn.brandfolder.io/MA3415EC/at/9xxcn88kxgbnk985p2kmt/TUV_1 4 Dioxane_ Fact_ Sheet_EN.pdf.
121 See Advanced Treatment for 1, 4-Dioxane — Tucson Removes Contamination Through UV -oxidation, TROJANUV
CASESTUDIES (2019), available at hops://www.resources.trojanuv.com/wp-content/uploads/2018/05/Treatment-of-
Groundwater-Contaminated-with-l4-Dioxane-Tucson-Arizona-Case-Study-Environmental-Contaminant-
Treatment.pdf.
14

treatment system can remove over 97 percent of the chemical from polluted water. 129 Other
treatment options are effective, including ozone -based and catalytic advanced oxidation
processes.I30 Treatment technology for 1,4-dioxane has been installed at industries in North
Carolina, 131 and the Department must similarly assess treatment technology available to control
DAK's 1,4-dioxane waste.
Importantly, the burden of analyzing the efficacy of treatment technology to remove the
pollutants in the company's discharge should fall on DAK. Because the Department knows that
DAK discharges significant levels of these toxic chemicals, the agency should demand the
company analyze the treatment technology available and provide information regarding how it
intends to limit its toxic pollution. This analysis should be completed during the permit
application process before the Department issues a final permit here. The Department cannot
refuse to ask for information and then refuse to act, feigning lack of knowledge.
b. The Department must ensure DAK's discharge does not threaten water quality.
If technology -based limits are not enough to ensure compliance with water quality
standards, the Department must include water quality -based effluent limits in DAK's permit."'
This obligation "may not be waived" and requires the agency to incorporate a permit limit
protective of water quality standards regardless of "treatability" or analytical method detection
levels. 133 EPA permit writing guidance explains that these requirements are mandatory and that
monitoring requirements "may not be substituted" for water quality -based permit limits. 134
For particular toxins, like PFAS and 1,4-dioxane, that do not have numeric water quality
standards, the Department has the authority and obligation to control discharges to surface water
using the narrative toxic substances standard. 135 The toxic substances standard mandates that the
"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."I36 For cancer -causing
chemicals, the rule requires concentrations to not result in "unacceptable health risks," defined as
"more than one case of cancer per one million people exposed."I31
"I Id. at 2; see also Educational Brochure, TUCSON AIRPORT AREA REMEDIATION PROJECT, available at
hLtps://www.tucsonaz.gov/files/water/docs/AOP TARP_ educational_signs.pdf.
130 See Tang, supra note 81 at 4-5.
131 See, e.g., City of Greensboro, EMC SOC WQ S 19-010 Year One Report: May 1, 2021 — April 30, 2022 4 (June
13, 2022), available at https://www.ereensboro-
nc. gov/home/showpublisheddocument/53017/637908166316270000.
132 40 C.F.R. § 122.44(d)(1)(i); see also 33 U.S.C. § 1311(b)(1)(C); 15A N.C. Admin. Code 2H.0112(c) (stating that
Department must "reasonably ensure compliance with applicable water quality standards and regulations").
133 U.S. Env't Prot. Agency, Central Tenets of NPDES Permitting Program, at 3, Attachment 38.
134 Id.
135 15A N.C. Admin. Code 2B.0208.
136 Id. at 2B.0208(a).
137 Id. at 2B.0208(a)(2)(B).
15

i. If technology -based limits are insufficient to protect water quality, the
Department must set water quality -based limits for 1,4-dioxane.
Since at least 2010, the Department has acknowledged that it has the authority to control
1,4-dioxane in NPDES permits using the narrative toxic substances standard, which limits the
chemical based on the one -in -one million cancer risk.138 Both EPA and the Department agree
that the concentration of 1,4-dioxane associated with the one -in -one million cancer risk is 0.35
ppb.139 Using that evaluation, the Department has determined that concentrations of 1,4-dioxane
in water supplies should not exceed 0.35 ppb, and concentrations in non -water supplies should
not exceed 80 ppb.140
While the requisite concentrations are distinct for the different designated uses, North
Carolina law mandates that water quality -based effluent limitations "be developed by the
Division such that the water quality standards and best usage of receiving waters and all
downstream waters will not be impaired." 141 The Department, therefore, is required to consider
whether the discharge of 1,4-dioxane will exceed the 80 ppb standard applicable to the river
where DAK directly discharges and the 0.35 ppb standard applicable to the downstream water
supply water.142 The Department recently acknowledged that it has the obligation to consider
downstream drinking water supplies in factsheet accompanying the city of Sanford's final
NPDES permit in April 2023143 and a draft permit issued to the city of Asheboro in December
2022.144 In the permitting materials accompanying Asheboro's draft permit, for example, the
Department explained that "1,4-dioxane is completely miscible in water and resistant to
biodegradation" and it is therefore "assumed that concentrations of 1,4-dioxane discharged from
the [wastewater plant] will be equivalent at the direct discharge... and the nearest downstream
water supply (WS-V) boundary."14s The same assumption should have been made here.
In contrast to how the Department has addressed 1,4-dioxane in other permits, the
reasonable potential analysis included in the permitting materials for DAK's draft permit
suggests 146 that the Department only considered whether DAK's waste would cause the instream
"' N.C. Env't Mgmt. Comm'n, Regulatory Impact Analysis: 2020-2022 Triennial Review — Surface Water Quality
Standards (May 13, 2021), at D-13, [hereinafter "1,4-dioxane Numeric Standard RIA"], https://penna.cc/Z89U-
R9GX.
"' EPA, Technical Fact Sheet — 1, 4-Dioxane, supra note 21; Surface Water Quality Standards, Criteria & In -Stream
Target Values, supra note 27.
141 Surface Water Quality Standards, Criteria & In -Stream Target Values, supra note 27; 1,4-dioxane Numeric
Standard RIA, supra note 138 at D-13.
141 15A N.C. Admin. Code 2B.0203 (emphasis added).
142 It's worth noting that hexachlorobenzene is limited in the draft permit based on its expected impact to
downstream water quality even though North Carolina has not adopted a numeric water quality standard for the
chemical. See 15A N.C. Admin. Code 2B.0212, .0214, .0215, .0216, .0218.
143 Sanford WWTP Permit Fact Sheet, supra note 7 at 13-14.
144 Asheboro WWTP Permit Fact Sheet, supra note 8 at 13-14.
145 Id. at 13.
146 There is ambiguity regarding whether the Department undertook an updated reasonable potential analysis. The
fact sheet states "[a] reasonable potential analysis was conducted on effluent toxicant data collected between January
2012 and July 2017," and concluded —without evaluation —that 1,4-dioxane "will not receive a limit since [it] did
not demonstrate reasonable potential to exceed applicable water quality." DAK Draft Permit Fact Sheet, supra note
9 at 5. An RPA provided during the comment period, however, suggests the analysis may have been undertaken,
albeit incorrectly.
16

concentration of 1,4-dioxane to exceed 80 ppb at the point of discharge.147 The Department
failed to take the next step and analyze whether DAK's discharge would have the reasonable
potential to violate the water quality standard at the water supply boundary less than 10 river
miles downstream.148
As shown in the following calculation, adjusting the Department's analysis to
accommodate the average annual stream flow149 at the downstream water supply boundary'50
(approximately 4,290 cubic feet per second, or cfs"'), and the appropriate water quality standard
for that downstream water (0.35 ppb), yields a chronic allowable discharge concentration of
approximately 1,937 ppb.
Water Quality Limit Calculation
Ca = (Qa + Qw) (CMs) — (Qa) (Cb)
QW
Ca µg/L = (4,290 cfs152 + 0.775 Cfs153, (0.35 gg/L) -- (4,290 cfs) (0)
0.774 cfs
Ca µg/L = 1,937 ppb
Legend for Calculation
Ca = allowable concentration (µg/L)
Qa = average annual stream flow in cfs, per 15A N.C. Admin. Code 2B.0206(a)(4)(B)
QW = permitted flow in cfs
Cwgs = water quality standard (µg/L)
Cb = background concentrations, assumed to be 0 for this letter
147 DAK RPA Spreadsheet, supra note 9.
141 See id. (utilizing the water quality standard of 80 ppb in the Department's "input" tab); see generally DAK Draft
Permit Fact Sheet, supra note 9 (not discussing or documenting analysis of impact on downstream water supplies).
141 15A N.C. Admin. Code 213.0206(a)(4)(B).
151 15A N.C. Admin. Code 213.0311(p).
151 Cape Fear R at Wilm O Huske Lock NR Tarheel, NC — 02105500, U.S. GEOLOGICAL SURVEY,
https://waterdata.usas.gov/monitoring-location/02105500/#parameterCode=00060&period=P365D (data pulled on
May 10, 2023).
152 Cape Fear R at Wilm O Huske Lock NR Tarheel, NC — 02105500, supra note 151.
151 DAK Draft Permit, supra note 1 at 2 (translating 0.500 MGD into cfs). This calculation assumes that DAK
maintains a permitted discharge of 0.500 MGD. If the company intends to expand its wastewater discharge flow, the
calculation should accommodate that increased flow, before the permit is made final.
17

Assuming the permit continues to authorize DAK to discharge 0.5 million gallons per
day, the permit should ensure that DAK's discharge does not exceed 1,937 ppb. If the company
is authorized to increase its discharge to 0.764 million gallons per day, as anticipated by DAK's
permit application materials,154 the appropriate limit should decrease to 1,272 ppb. Additionally,
in this letter, it is assumed that background concentrations are 0 ppb, given the lack of upstream
data in the permit application materials. The Department and the public are aware, however, that
there are multiple sources of 1,4-dioxane upstream of DAK, including, but not limited, to the
cities of Greensboro, Reidsville, Asheboro, High Point, Burlington, Sanford, Holly Springs,
Randleman, Ramseur, Fayetteville, as well as industries like Brenntag Mid-South.155 Therefore,
before the Department finalizes this permit, it must evaluate the background concentration of
1,4-dioxane and incorporate that level into this calculation.156 Finally, the proposed allowable
concentration above relies on the average annual flow of the downstream waters. Should the
Department elect to utilize the 7Q10 flow (in order to protect water quality standards throughout
the year), the resulting permit limit would be significantly lower. In that situation, using a 7Q10
flow of 791 cfs157 and the appropriate water quality standard of 0.35 ppb, the allowable
concentration would fall to 358 ppb.
As discussed in Section I (a), DAK's average discharge of 1,4-dioxane is 5,301 ppb,158
far above this allowable concentration. In fact, the facility has exceeded 1,937 ppb in more than
65 percent of the samples collected, and since January 2022, DAK's discharge has only been
recorded below 1,937 ppb once. It is thus clear that DAK's 1,4-dioxane pollution has "the
reasonable potential to cause, or contribute to an excursion above... State narrative criteria for
water quality."159 Before DAK's permit is finalized, the Department must evaluate and, if
necessary, given achievable technology -based limits, impose a water quality -based limit for 1,4-
dioxane.
ii. If technology -based limits are insufficient to protect water quality, the
Department must set water quality -based limits for PFAS.
EPA has made clear that NPDES permits for facilities that release PFAS "must include
water quality -based effluent limits (WQBELs) as derived from state water quality standards,"
including narrative water quality standards.160 Similar to 1,4-dioxane, the Department has stated
that PFAS "meet the definition of `toxic substance"' and has included limits for PFAS
referencing the toxic substances standard and EPA's health advisory for GenX in at least one
154 DAK Permit Application, supra note 2 at PDF pg. 80.
155 Cape Fear Municipal PFAS & 1,4-dioxane Sampling, supra note 100; Cape Fear Industrial PFAS & 1,4-dioxane
Sampling, supra note 4.
116 U.S. Env't Prot. Agency, NPDES Permit Writers' Manual: Chapter 6. Water Quality -Based Effluent Limitations
(Sept. 2010), at 6-23, Attachment 39 ("[A] reasonable potential analysis is used to determine whether a discharge,
alone or in combination with other sources of pollutants to a waterbody and under a set of conditions arrived at by
making a series of reasonable assumptions, could lead to an excursion above an applicable water quality standard."
(citing 40 C.F.R. §122.44(d)(1)(i))).
"' DAK RPA Spreadsheet, supra note 9.
158 DAK 2018-2023 DMRs, supra note 4.
159 40 C.F.R. 122.44(d)(1)(i).
"I EPA's PFAS NPDES Guidance, supra note 11 at 3.

NPDES permit.16' The Department should similarly assess water quality -based effluent limits in
DAK's permit. The Department should require the facility to sample its effluent for PFAS and
utilize existing health information to inform appropriate water quality -based limits. EPA's health
advisories and proposed drinking water standards for PFAS, as well as countless toxicity studies,
indicate that the chemicals pose unacceptable health risks at extremely low levels, and these
health advisories and toxicity information should inform the Department's effluent limit analysis
for DAK's permit.
VI. Conclusion.
We acknowledge that the Department has taken impressive steps to control PFAS and
1,4-dioxane from other facilities in the Cape Fear River Basin. But the Department cannot
selectively focus on certain sources of toxic pollution while allowing others to contaminate our
rivers, streams, and creeks freely. DAK currently releases high concentrations of 1,4-dioxane and
PFAS. The Department has an obligation to control these discharges through technology -based
and, if necessary, water quality -based effluent limits. Because the Department did not do so here,
this draft permit violates the law and must be withdrawn and amended.
Thank you in advance for considering these comments. Please contact me at 919-967-
1450 or [e-mail] if you have any questions regarding this letter.
Sincerely,
4W"�)Q�0
Hannah M. Nelson
Geoff Gisler
SOUTHERN ENVIRONMENTAL LAW CENTER
601 W. Rosemary Street, Suite 220
Chapel Hill, NC 27516
cc: Kemp Burdette, Cape Fear River Watch, kemp@cfrw. us
Dana Sargent, Cape Fear River Watch, [e-mail]
161 DEQ v. Chemours, Amended Complaint, supra note 108 at ¶ 152 (stating that "the process wastewater from
[Chemours] Fluoromonomers/Nafion® Membrane Manufacturing Area contains and has contained substances or
combinations of substances which meet the definition of "toxic substance" set forth in 15A N.C.A.C. 2B.0202,"
referring to GenX and other PFAS); Chemours Outfall 004 Permit, supra note 6 at 3; Chemours Outfall 004 Permit
Fact Sheet, supra note 6 at 13-14.
19