NC0090212_Comments_20240307

SOUTHERN 48 Patton Avenue, Suite 304 Telephone [phone]
ENVIRONMENTAL Asheville, NC 28801 Facsimile 828-258-2024
LAW
CENTER
March 7, 2024
Dr. Sergei Chernikov
N.C. Department of Environmental Quality
Wastewater Permitting
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
[e-mail]
Re: Comments on Draft NPDES Permit No. NC0090212, Albemarle Corporation Kings
Mountain Mine
Dear Dr. Chernikov:
Please accept these comments on draft National Pollutant Discharge Elimination System
(NPDES) Permit No. NCO090212 on behalf of MountainTrue, the Broad Riverkeeper, and the
Southern Environmental Law Center. MountainTrue is a nonprofit membership organization
whose mission is to champion resilient forests, clean waters, and healthy communities in the
Southern Blue Ridge, including in the area surrounding the Albemarle Corporation Kings
Mountain mine. MountainTrue is the home of the Broad Riverkeeper, the primary protector and
defender of the Broad River watershed where the mine is located. The Southern Environmental
Law Center is a nonprofit legal organization working to protect the basic right to clean air, clean
water, and a livable climate; to preserve the South's natural treasures and rich biodiversity; and
to provide a healthy environment for all.
A primary goal of both MountainTrue and the Southern Environmental Law Center is
mitigating climate change, which is a significant threat to communities in North Carolina.
Transportation is the largest source of climate -harming pollution in North Carolina and
nationwide. Replacing fossil fuel —powered vehicles with electric vehicles must be part of the
solution to that problem.
We appreciate the important role the Kings Mountain mine stands to play in this
transition. We understand based on conversations with Albemarle staff that lithium from the mine
will be used to produce electric vehicle batteries and that at full capacity the mine will annually
produce enough lithium to power one million cars. Facilitating the transition to electric vehicles
is a necessary objective that we wholeheartedly support. We also understand the value of
developing domestic sources of lithium and the potential advantages of having a lithium mine
near electric vehicle manufacturers in the Southeast.
We additionally appreciate Albemarle's public outreach efforts in connection with
reopening the mine and its commitment to being good stewards of our environment and good
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

neighbors in our communities. We firmly believe that climate protection and economic growth
can —and should —go hand in hand. Our hope is that reopening the mine will benefit Kings
Mountain economically while helping mitigate the climate crisis. Given our conversations with
Albemarle representatives to date, we are optimistic that the mine can be reopened and operated
while minimizing local environmental harms. Certainly, the fact that Albemarle is reopening an
existing mine, as opposed to building a greenfield mine, will aid that effort.
The proposed NPDES permit is necessary to drain water that has collected in the existing
mine to allow Albemarle to restart mining operations. While we are eager to see that process
underway, we raise six concerns with the draft permit below. Several of the concerns relate to
longstanding shortcomings in the North Carolina Department of Environmental Quality's
(DEQ's) implementation of the NPDES program as delegated from the Environmental Protection
Agency. We urge DEQ to fix these shortcomings. Doing so will provide clarity to permittees and
better facilitate the expansion and recruitment of businesses that seek to generate economic
growth and address climate change all while protecting the local environment.
First, as it has for many industrial NPDES permits, DEQ has ignored in this draft permit
the mandatory requirement under the Clean Water Act to impose technology -based effluent
limitations. DEQ is well aware of this issue because we have raised it with the agency multiple
times. In lieu of explaining this requirement in the body of this letter, we are attaching the
Petition for Declaratory Ruling we filed with the Environmental Management Commission last
year. See Petition, Attachment 1. DEQ must evaluate and apply technology -based effluent limits
to comply with the Clean Water Act.
Further, we suspect that the technology Albemarle has chosen to treat its effluent —two
stages of chemical oxidation, media filtration, and membrane filtration —would be sufficient to
meet the technology -based requirement. In other words, applying the technology -based
requirement is unlikely to force Albemarle to change anything about its water treatment plans; it
would only require DEQ to develop more appropriate limits in the draft permit based on
application of technologies Albemarle has already committed to use. Including appropriate limits
in the permit developed based on best -available technology is a crucial backstop for protecting
water quality near Kings Mountain.
Second, water in the mine's existing pit extends to a depth of 165 feet below the mine's
current surface. The draft permit proposes to authorize the discharge of that water. However, the
proposed wastewater treatment design was developed based on removing water only up to 150
feet. The "lower reaches of the pit (150-165 feet) will be a difficult mix of settled solids, sludge,
organic matter, and other deposits" apparently including "floor slimes." Memo from Sam Billin,
Linkan Engineering, to Morgan Wallen, Albemarle, 2, 6 (Mar. 14, 2023). These "lower reaches"
are predicted to hold about 17 million gallons of water. Id. Albemarle's engineering consultant
has explained that "additional efforts and/or changes to the treatment system may be required" to
treat this water. We agree. We understand that Albemarle plans to conduct water sampling over
the course of dewatering the pit, which should inform this decision. We ask that the draft permit
be amended to prevent discharge of wastewater from the lower reaches of the pit until DEQ
determines and publicly discloses whether additional effluent limits are necessary which could
require a permit modification.
2

Third, DEQ drafted the proposed permit assuming that "Kings Creek is not on the 2022
303(d) list." Fact Sheet at 2. This is incorrect. Kings Creek (AU ID 12877) is listed as impaired
for benthos on the 2022 303(d) list. See 2022 North Carolina 303(d) List Integrated Report, 2.
DEQ must reassess whether it can issue the permit in its current form considering Kings Creek's
impaired status.
Fourth, North Carolina's water quality standard for turbidity explains that "the turbidity
in the receiving water shall not exceed 50 Nephelometric Turbidity Units (NTU) in streams not
designated as trout waters ... ; if turbidity exceeds these levels due to natural background
conditions, the existing turbidity level shall not be increased." 15A N.C. Admin. Code
2B.0211(21). We commend DEQ for appropriately applying this standard in the draft permit,
which explains that if turbidity exceeds 50 NTU "due to natural background conditions, the
discharge level cannot cause any increase in the turbidity of the receiving waters." However, the
monitoring requirements do not facilitate compliance with this standard because they require
only weekly instream monitoring and only if the effluent, not background conditions, exceeds 50
NTU. We request that DEQ develop a monitoring regime to ensure discharges of effluent cause
no increase in turbidity when background conditions in the receiving water already exceed 50
NTU.
Fifth, DEQ used a reasonable potential analysis to develop water quality —based effluent
limitations. That reasonable potential analysis assumed that "background concentrations for all
parameters [are] below detection level" in Kings Creek. Fact Sheet at 2. To support its NPDES
permit application, Albemarle assessed water quality in Kings Creek. See generally SWCA
Environmental Consultants, Kings Creek Stability and Water Quality Assessment (November
2022). That assessment shows numerous contaminants already present in Kings Creek. See id.,
Appendix F. Presumably, DEQ also has data regarding water quality in Kings Creek that led to
its inclusion on the 2022 303(d) list. It is arbitrary and capricious for DEQ to complete its
reasonable potential analysis assuming that "background concentrations for all parameters [are]
below detection level" when it has data showing that is clearly not the case. DEQ must rerun its
reasonable potential analysis accounting for these background concentrations.
Similarly, DEQ completed its reasonable potential analysis for hardness -dependent
metals "utilizing a default hardness value of 25 mg/L CaCO3." Fact Sheet at 2. But data in
DEQ's position indicates hardness in Kings Creek is much higher. See Kings Creek Stability and
Water Quality Assessment, Appendix F, F-3 (showing hardness values in Kings Creek of 288,
287, and 133). Hardness values in water currently in the pit also range from 172 to 218 mg/L.
See id. Appendix E. DEQ must rerun its reasonable potential analysis using the hardness data it
has in hand rather than relying on assumptions it knows to be incorrect.
Sixth, DEQ appears to be ignoring narrative water quality standards in calculating limits
in this permit. See, e.g., 15AN.C. Admin. Code 2B.0211(1) (providing narrative water quality
standard for biological integrity). Consideration of narrative standards may lead DEQ to include
permit limits for contaminants that lack numeric water quality standards but that Albemarle has
identified as contaminants of concern in the pit water. See Memo from Sam Billin, Linkan
Engineering, to Morgan Wallen, Albemarle, 5 (identifying sulfide and manganese as

contaminants of concern). Consideration of narrative standards is additionally important because
effluent may constitute up to 95% of Kings Creek's volume at certain times of the year. Draft
Permit at 1.
In closing, we want to underscore that many, if not all, of the problems identified in this
letter relate to DEQ's application of the NPDES program and not to Albemarle's choice of
wastewater treatment technology. We do not doubt Albemarle's commitment to environmental
protection, but permit limits developed consistent with the requirements of the Clean Water Act
would better protect Kings Creek and surrounding waterways. We appreciate the opportunity to
submit these comments and, as always, remain available to answer questions or discuss any of
the issues raised herein.
Sincerely,
pa-4;,YT
Patrick Hunter
Senior Attorney
Southern Environmental Law Center
[e-mail]

ATTACHMENT 1

BEFORE THE
NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION
Cape Fear River Watch, MountainTrue,
and the Yadkin Riverkeeper,
Petitioners
REQUEST FOR
DECLARATORY RULING
Over fifty years ago, Congress enacted the Clean Water Act "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." To meet that objective,
Congress prohibited the discharge of pollutants from point sources without a permit and
established a "national goal that the discharge of pollutants into the navigable waters be
eliminated by 1985." The Clean Water Act pursues this goal through technology -based effluent
limitations —the minimum level of control required in all discharge permits —which operate by
requiring permit writers to assess available treatment technologies when permits are issued and
impose lower pollutant limits based on those technologies. In practice, improvements in
treatment technology should result in improvements in water quality eventually culminating in
the elimination of pollution discharges entirely.
This technology -based requirement is a linchpin of the Clean Water Act, and it can make
a crucial difference in North Carolina communities. For example, proper application of the
technology -based requirement recently resulted in an 86% reduction in the amount of benzene —
a known human carcinogen —one industrial discharger was allowed to put into local waterways.
In North Carolina, the Environmental Management Commission, through the Department
of Environmental Quality (the "Department"), implements this permitting program. The
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Department has not contested the technology -based requirement but interprets and applies the
requirement inconsistently across the state. This undermines congressional intent and one of the
Clean Water Act's primary mechanisms for protecting water quality. More importantly, it
arbitrarily extends mandatory Clean Water Act protections in some instances —to the benefit of
downstream communities and wildlife —while denying them in others. This unfairly forces North
Carolina communities to shoulder the burden of harmful and costly pollution that could be easily
controlled with existing technology installed by the discharger. Petitioners have brought these
concerns to the Department's attention for years —through meetings, phone calls, and
comments —yet the Department continues to inconsistently apply the technology -based
requirement. A declaratory ruling from the Environmental Management Commission instructing
the Department to interpret and apply the technology -based requirement consistently across the
statein other words, to apply the law as written —would help ensure that businesses, churches,
families, communities, fish, and wildlife, enjoy the benefits of improved water quality that can
be achieved by application of existing technologies —many of which have existed for decades.
Accordingly, pursuant to N.C. Gen. Stat. § 150B-4 and 15A N.C. Admin. Code 2I.0601
et seq., Cape Fear River Watch, MountainTrue, and the Yadkin Riverkeeper (collectively
"Conservation Groups") submit this request to the Environmental Management Commission for
a ruling confirming the Department's obligation to evaluate and apply technology -based effluent
limitations in National Pollutant Discharge Elimination System permits for direct industrial
dischargers.' As discussed more below, technology -based effluent limitations must be
1 North Carolina law defines "industrial discharge" as "the discharge of industrial process treated wastewater or
wastewater other than sewage." 15A N.C. Admin. Code 2B .0202(33). This request excludes discharges from
publicly owned treatment works. It also excludes industrial facilities that discharge into publicly owned treatment
works. The request is focused only on industrial facilities that discharge wastewater directly into waters of the
United States.
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established in those permits based on one of two sources: 1) national effluent limitation
guidelines promulgated by the Environmental Protection Agency or 2) the "best professional
judgment" of the permit writer. Conservation Groups' request is focused on the latter category.
Specifically, Conservation Groups request the following rulings:
a) When National Pollutant Discharge Elimination System permits are issued to direct
industrial dischargers, the Department of Environmental Quality must evaluate and apply
technology -based effluent limitations consistent with 40 C.F.R. § 125.3(a) for pollutants
in the discharge that can be treated or otherwise removed. This evaluation must be
documented in the permit fact sheet.
b) The Department of Environmental Quality's assessment of technology -based effluent
limitations must be made irrespective of the need for any water -quality -based effluent
limitations.
c) For direct industrial dischargers, where the Environmental Protection Agency has not
promulgated national effluent limitation guidelines for a particular pollutant, industry, or
portion of a discharger's operation, the Department of Environmental Quality must
evaluate and apply technology -based effluent limitations according to the agency's "best
professional judgment."
I. Nature of the Request
The North Carolina Administrative Procedure Act provides that on "request of a person
aggrieved, an agency shall issue a declaratory ruling ... to resolve a conflict or inconsistency
within the agency regarding an interpretation of the law or a rule adopted by the agency."2
Here, Conservation Groups request a declaratory ruling to resolve the Department's
inconsistent application of key federal and state laws, including 15A N.C. Admin. Code 2H
0118, that protect communities and drinking water sources from industrial pollution. The Clean
Water Act and North Carolina law require the Department to incorporate technology -based
effluent limitations ("technology -based limits") based on "best professional judgment" in
National Pollutant Discharge Elimination System ("NPDES") permits for direct industrial
2 N.C. Gen. Stat. § 150B-4(a).
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dischargers. The Environmental Management Commission and the Department implement the
federal Clean Water Act's NPDES permitting program in North Carolina through delegated
authority from the Environmental Protection Agency ("EPA"). Under that program, technology -
based limits "represent the minimum level of control that must be imposed in a permit."3 The
Environmental Management Commission has promulgated rules adopting these and other
requirements. Specifically, 15A N.C. Admin. Code 2H .0118 requires that "[a]ny state NPDES
permit shall contain effluent limitations and standards required by 15A NCAC 02B .0400 and the
Clean Water Act, which is hereby incorporated by reference including any subsequent
amendments and editions."
Despite these obligations, the Department inconsistently applies the technology -based
requirement, frequently bypassing it altogether. By disregarding federal and state law, the
Department ignores proven technology that industrial facilities can use to prevent pollution from
entering North Carolina streams, lakes, and rivers. Conservation Groups' request seeks to correct
this practice. While Conservation Groups would applaud the elimination of pollution discharges
as originally envisioned under the Clean Water Act, their goal here is simply to ensure consistent
application of the technology -based requirement across the state so that industries use existing
technologies to reduce their pollution.
IL Petitioners
Conservation Groups are environmental nonprofits that work to protect water quality.
Conservation Groups work on behalf of their thousands of members who rely on rivers, streams,
and lakes in North Carolina for recreation, education, business, relaxation, and spiritual renewal.
As explained in Attachment 1 and the accompanying affidavits, Conservation Groups and their
140 C.F.R. § 125.3(a). An index of statutes and regulations frequently cited in this petition is provided in Appendix
A.

members are harmed by the Department's inconsistent application of the technology -based
requirement. This has led members of Conservation Groups to invest in expensive water
treatment technologies or alternative water supplies out of fear of the industrial pollution present
in source waters,4 avoid recreating on certain rivers,5 avoid eating fish from rivers,6 affected
their businesses and organizational resources,7 and generally reduced Conservation Groups'
members' ability to enjoy local waterways.8 On the other hand, application of the technology -
based requirement mitigates these concerns for Conservation Groups and their members,
allowing them to benefit from North Carolina's waters as intended by the Clean Water Act and
North Carolina law.9 Conservation Groups are "person[s] aggrieved" for purposes of N.C. Gen.
Stat. § 150B-4 as explained in more detail in the affidavits included with Attachment 1, which
also includes each organization's contact information.
III. Statutory and Regulatory Background
A. The Federal Clean Water Act
Congress passed the Clean Water Act in 1972 "to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters."10 To achieve that objective, Congress
established an "interim goal of [achieving] water quality which provides for the protection and
4 Burdette Aff. ¶ 38, Attachment IA; Wolfe Aff. ¶¶ 15-16, Attachment 1B.
5 Alsobrook Aff. ¶¶ 10-14, Attachment 1C; Jernigan Aff. ¶¶ 15-16, Attachment 1D; Carson Aff. ¶¶ 16-17,
Attachment 1F; Isaac Aff. ¶¶ 22-23, Attachment 1G.
6 Burdette Aff. ¶ 37; Wolfe Aff. ¶ 20; Caldwell Aff. ¶¶ 24-26, Attachment IE.
7 Wolfe Aff. ¶¶ 12-14; Jernigan Aff. ¶ 24.
'See generally Attachments lA—lI.
'Miller Aff. ¶¶ 19-22, Attachment 1I.
10 33 U.S.C. § 1251(a).
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propagation of fish, shellfish, and wildlife and provides for recreation" by 1983 and a larger
"goal that the discharge of pollutants into the navigable waters be eliminated by 1985."11
To meet that goal, Congress prohibited the discharge of pollutants 12 from a point source 13
without a National Pollutant Discharge Elimination System permit. 14 This permitting program is
structured around progressive improvements in pollution control over time to meet Congress's
"national goal" of eliminating discharges of pollutants.15 The Department shares this
understanding, recently citing the NPDES permitting program's objective "to eliminate all point
source discharges to surface waters by 1985."16
NPDES permits control pollution through two primary mechanisms: first, by setting
limits based on technologies available to treat pollutantsi.e., technology -based limits —and
second, by setting any additional limits necessary to ensure compliance with state -promulgated
water quality standards through water -quality -based effluent limitations ("water -quality -based
limits,,).17
NPDES permits "shall contain" technology -based limits.18 These technology -based limits
"Id. § 1251(a)(1)—(2). See generally EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200,202
(1976) (explaining that prior to the 1972 Clean Water Act, federal water pollution control "focused on the tolerable
effects rather than the preventable causes of water pollution").
12 Pollutant is defined in the Clean Water Act in pertinent part as "dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged
into water." 33 U.S.C. § 1362(6).
13 A point source is defined under the Clean Water Act in pertinent part as "any discernible, confined and discrete
conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or
maybe discharged." Id. § 1362(14).
14 Id. § 1311(a).
15 See id. § 1251(a)(1).
16 N.C. Dep't of Env't Quality, Hearing Officer's Report and Recommendations for Colonial Pipeline Company--
NPDES Permit No. NC0090000 at 30 (June 14, 2023) [hereinafter "Colonial Hearing Report"], Attachment 2.
17 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. § 122.44(a)(1), (d).
1140 C.F.R. § 125.3(a); see also 33 U.S.C. § 1342(a).
Q

"represent the minimum level of control that must be imposed in a permit,"19 and they are
"developed independently of the potential impact of a discharge on the receiving water. ,20 In
other words, even if fish and other aquatic wildlife could theoretically survive higher levels of
pollution, Congress determined that industrial facilities must control their pollution with existing
treatment technology. This extends greater benefits to communities as technology improves and
"result[s] in reasonable further progress toward the national goal of eliminating the discharge of
all pollutants."21 As explained in EPA's NPDES Permit Writers' Manual, one of "the major
strategies of the Clean Water Act [ ] in making `reasonable further progress toward the national
goal of eliminating the discharge of all pollutants' is to require effluent limitations based on the
capabilities of the technologies available to control those discharges."22 "Congress designed this
standard to be technology -forcing, meaning it should force agencies and permit applicants to
adopt technologies that achieve the greatest reductions in pollution."23
Permit writers derive technology -based limits from one of two sources. For some
industries and pollutants, EPA has established national effluent limitation guidelines which set
minimum, nationwide levels of technological control.24 But where national effluent limitation
guidelines are not applicable, technology -based limits "are established on a case -by -case basis
19 40 C.F.R. § 125.3(a) (emphasis added); see also 33 U.S.C. § 1342(a).
21 U.S. Env't Prot. Agency, NPDES Permit Writers' Manual at 5-1 (2010) [hereinafter "NPDES Permit Writers'
Manual"], Attachment 3.
21 33 U.S.C. § 131 l(b)(2)(A) (explaining technology -based limits in terms of "best available technology" for
effluent limitation guidelines); Tex. Oil & Gas Assn v. EPA, 161 F.3d 923, 927 (5th Cir. 1998) (stating that the
"national goal that the discharge of pollutants into the navigable waters be eliminated by 1985 ... was designed to
[be] achieve[d] ... through ... technology -based discharge limits for all categories and subcategories of water
pollution point sources").
22 NPDES Permit Writers' Manual, supra note 20, at 5-1; see also id. (Technology -based limits "aim to prevent
pollution by requiring a minimum level of effluent quality that is attainable using demonstrated technologies for
reducing discharges of pollutants or pollution into the waters of the United States.").
23 Nat. Res. Def. Council v. EPA, 808 F.3d 556, 563-64 (2d Cir. 2015); see id. at 563 (explaining that technology -
based limits "set effluent limitations on a point source based on how effectively technology can reduce the pollutant
being discharged").
24 33 U.S.C. §§ 1311(b), 1314(b).
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using [permit writers' best professional judgment]."25 Similarly, where "effluent limitations
guidelines only apply to certain aspects of the discharger's operation, or to certain pollutants,
other aspects or activities are subject to regulation on a case -by -case basis" by technology -based
limits established using best professional judgment.26 To summarize, where national effluent
limitation guidelines are unavailable or only partially available for an industry or pollutant,
permit writers must impose technology -based limits by exercising their best professional
judgment.
This requirement is particularly important because EPA has only promulgated national
effluent limitation guidelines for certain pollutants within 59 industrial categories, leaving the
majority of industrial pollution uncovered by an effluent limitation guideline and subject to
technology -based control only through the exercise of permit writers' best professional
judgment.27
To be clear, the exercise of best professional judgment does not require a facility to
install a specific technology. Instead, permit writers identify the level of pollution control
achievable with existing technologies, develop permit limits accordingly, and leave it to the
discharger to determine how to meet that limitthrough application of the specific technology
or otherwise.
EPA has provided a list of factors for permit writers to consider when developing
technology -based limits using best professional judgment. For most industries in North Carolina,
permit writers consider the "age of equipment and facilities involved," the "process employed,"
25 NPDES Permit Writers' Manual, supra note 20, at 5-45; see 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3(c)(2).
26 40 C.F.R. § 125.3(c)(3); see also NPDES Permit Writers' Manual, supra note 20, at 5-14 (explaining that due to
the Clean Water Act's mandates, "a single permit could have [technology -based limits] based on effluent guidelines,
[best professional judgment], and state law, as well as [water -quality -based limits] based on water quality
standards").
21 See U.S. Env't Prot. Agency, Effluent Guidelines Plan, hl�2s://www.epa.gov/eg/effluent-guidelines-plan (last
visited Aug. 17, 2023).

the "engineering aspects of the application of various types of control techniques," "[p]rocess
changes," the "cost of achieving such effluent reduction" and non -water quality impacts.2' This
process employs similar factors to those used when EPA develops national effluent limitation
guidelines,29 and EPA has identified "numerous resources" to aid permit writers in making this
determination.30 When developing technology -based limits using best professional judgment, the
permit writer's "[i]ndividual judgments ... take the place of uniform national [effluent
limitation] guidelines, but the technology -based standard remains the same."31 This sets a
common floor of pollution control regardless of whether a specific facility is subject to national
effluent limitation guidelines.
Only after evaluating and imposing technology -based limits do permit writers consider
the need for water -quality -based limits. If technology -based limits ensure compliance with water
quality standards, no further limits are necessary. But if technology -based limits are insufficient
to ensure compliance with those standards, permits must also include more stringent water -
quality -based limits.32
B. North Carolina's Authority to Administer the NPDES Program
Congress initially charged EPA with NPDES permitting responsibilities but allowed
states to petition to administer their own NPDES permitting programs in lieu of EPA under
28 See 40 C.F.R. § 125.3(d)(3) (providing factors to consider when developing technology -based limits based on best
available technology). The Clean Water Act allowed dischargers to phase in advanced technologies over time but
today most direct industrial dischargers in North Carolina must apply technology -based limits based on "best
available technology." See id. § 125.3(a)(2) (providing timelines for achieving "best available technology" controls).
29 Louisville Gas & Elec. Co. v. Ky. Waterways All., 517 S.W.3d 479, 487-88 (Ky. 2017). Compare 33 U.S.C. §
1314(b) (providing factors for developing national effluent limitation guidelines), with 40 C.F.R. § 125.3(d)
(providing factors for developing technology -based limits using best professional judgment).
so NPDES Permit Writers' Manual, supra note 20, at 5-47.
31 Tex. Oil & Gas Assn, 161 F.3d at 929. The permit writer's best professional judgment determinations must be
"document[ed] ... in the NPDES permit fact sheet" to "provide the NPDES permit applicant and the public a
transparent, reproducible, and defensible description of how the [technology -based limits derived using best
professional judgment] comply with the [Clean Water Act]." NPDES Permit Writers' Manual, supra note 20, at 5-
48.
32 See 40 C.F.R. § 122.44(d).
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principles of cooperative federalism. 33 In addition to other requirements states must meet to
obtain permitting authority, states must demonstrate that they have adequate authority to issue
NPDES permits that "apply, and [e]nsure compliance with" technology -based limits and water -
quality -based limits.34 If approved, states implement the NPDES permitting program within their
borders under delegated authority from EPA. But if states fail to fulfill their NPDES permitting
responsibilities consistent with the requirements of the Clean Water Act, EPA "shall withdraw
approval of such program."35
North Carolina has administered the NPDES permitting program within its borders since
1975.36 Authority to issue NPDES permits rests with the Environmental Management
Commission,37 which has delegated that authority to the Department38 where it is exercised by
the Division of Water Resources.
North Carolina's delegated permitting program is governed by a Memorandum of
Agreement with EPA, which "sets forth procedures for how the [NPDES] program will be
administered by the State of North Carolina, Environmental Management Commission and [the
Department]."39 The Memorandum of Agreement charges the Environmental Management
Commission and the Department with "ensuring that the State NPDES program is consistent
with all of the requirements of this [Memorandum of Agreement]" and other Clean Water Act
33 33 U.S.C. § 1342(b).
34Id. § 1342(b)(1)(A); see also 40 C.F.R. Part 123 Subpart B (providing requirements for state NPDES program
submissions).
35 33 U.S.C. § 1342(c)(3).
36 See N.C. Dep't of Env't Quality, NPDES Wastewater, https://www.deq nc.gov/about/divisions/water-
resources/permitting/npdes-wastewater#: -: text=A11%20wastewater%20discharges%20to%20surface,
Environmental%20Protection%2OAaency%20(EPA) (last visited Aug. 20, 2023).
37 See N.C. Gen. Stat. § 143-215.1.
38 15A N.C. Admin. Code 2A .0105.
39 National Pollutant Discharge Elimination System Memorandum of Agreement Between the State of North
Carolina and the United States Environmental Protection Agency Region 4 at 1 (2007), Attachment 4.
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requirements,40 including "[t]echnology-based treatment requirements ... [which] represent the
minimum level of control that must be imposed in a [NPDES] permit. ,41
C. North Carolina Law Implementing Technology -Based Limits
North Carolina's water pollution control laws were enacted, in part, to "to enable the
Department and the [Environmental Management] Commission to qualify to administer federally
mandated programs of environmental management" like the NPDES permitting program.4' As a
result, technology -based requirements under the federal Clean Water Act were adopted into state
law.
Like the Clean Water Act, North Carolina law prohibits the discharge of pollutants from
point sources without an NPDES permit.43 Rules promulgated by the Environmental
Management Commission require that "[a]ny state NPDES permit shall contain effluent
limitations and standards required by 15A NCAC 02B .0400 and the Clean Water Act, which is
hereby incorporated by reference including any subsequent amendments and editions."44 In other
words, NPDES permits in North Carolina must include technology -based limits. The
Environmental Management Commission's rules further provide that technology -based limits
should be established pursuant to national effluent limitation guidelines or, where those
guidelines are unavailable, separately "calculated by the staff' using best professional
judgment.45
40 Id. at 28.
4140 C.F.R. § 125.3(a).
42 N.C. Gen. Stat. § 143-211(c). To obtain delegated permitting authority, North Carolina was required to
demonstrate through the State Attorney General that "that the laws of the State ... provide adequate authority" to
administer the NPDES program consistent with the Clean Water Act's requirements. 40 C.F.R. § 123.23(a).
4s N.C. Gen. Stat. § 143-215.1(a)(1); see id. § 143-213 (defining "waste" and "outlet").
44 15A N.C. Admin. Code 2H .0118; see also 15A N.C. Admin. Code 213.0404 ("Effluent limitations shall be
developed by the staff for all existing or proposed discharges to the surface waters of the state").
41 See 15A N.C. Admin. Code 2B .0406(b)(3).
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Technology -based limits are defined under North Carolina law as "those effluent limits
that are based on minimum treatment requirements," and "minimum treatment requirements" are
defined as "the minimum technology -based effluent limitations that a specific discharge would
be required to meet in order to satisfy applicable treatment standards."46 "Minimum treatment
requirements must be met even if the receiving waters affected can or are expected to be able to
accept higher pollutant -load levels and still meet applicable water quality standards."47 When
exercising best professional judgment, the Department is instructed to develop technology -based
limits for industrial facilities "using the projected limits of the Environmental Protection Agency,
the Environmental Protection Agency development document, and other available
information."48 Like federal law, state law —including rules promulgated by the Environmental
Management Commission —require the Department to evaluate and apply technology -based
limits in NPDES permits for direct industrial dischargers based on best professional judgment.
Notably, the Department does not have to shoulder the responsibility of researching
effective treatment technologies. Instead, North Carolina law gives the agency the authority to
ask permit applicants for the information necessary to calculate technology -based limits. The
agency "may require an applicant to submit plans, specifications, and other information [the
46 Id. § 2B .0403(13), (6). Other states that run delegated NPDES permitting programs have similar requirements.
See, e.g., S.C. Code Ann. Regs. 61-9.125.3(a) ("Technology -based treatment requirements under section 301(b) of
the [Clean Water Act] represent the minimum level of control that must be imposed in an NPDES permit issued
under section 402 of the [Clean Water Act]."); Tenn. Comp. R. & Regs. 0400-40-05-.09 ("Permits shall impose ...
technology -based effluent limitations, unless more stringent water quality -based effluent limitations are required for
these pollutants[.]"); 9 Va. Admin. Code 25-31-220 (requiring the use of technology -based limits).
41 15A N.C. Admin. Code 2B .0403(6); see also id. § 2B .0404(a) (explaining that "if the discharge is subject to both
technology based and water quality based effluent limitations for a parameter, the more stringent limit shall apply").
Courts in other states have also upheld the requirement to include technology -based limits in state -issued NPDES
permits. See, e.g., N. Cheyenne Tribe v. Mont. Dep't ofEnv't Quality, 234 P.3d 51, 58 (Mont. 2010) (confirming
requirement to impose technology -based limits in NPDES issued by Montana); Louisville Gas & Elec. Co., 517
S.W.3d at 487-88 (confirming the same in Kentucky).
48 15A N.C. Admin. Code 2B .0406(b)(3). Adjacent states include similar requirements. See, e.g., Tenn. Comp. R. &
Regs. 0400-40-05-.09 ("For industrial discharges without applicable federal effluent limitations guidelines, best
professional judgment should be employed to establish appropriate effluent limitations and standards.").
-12-

Department] considers necessary to evaluate the application,"49 which includes information
necessary to craft technology -based limits. Indeed, in some contexts, North Carolina law
specifically requires applicants to provide information about treatment technologies, including
"whether there are cost-effective alternative technologies that will achieve greater protection of
water quality."50 The Department has in some instances required permit applicants to provide
information on the availability of treatment technologies,51 but in other instances ignored
information on available technologies voluntarily provided by industrial dischargers.52
IV. Factual Basis for Request for Declaratory Ruling
Despite the federal and state mandates requiring the Department to apply technology -
based limits when issuing NPDES permits for direct industrial dischargers, the agency does so
irregularly and unpredictably when required to exercise its best professional judgment. In recent
months alone, the Department has refused to even consider technology -based limits in several
permits, explaining in at least one instance that it "has no institutional capacity to develop
[technology -based limits based on best professional judgment] in according [sic] with the EPA
guidance" and expressing concerns over industry's response to such requirements.53 However, in
other instances, technology -based limits were implemented "[b]ased on best professional
judgment in accordance with 40 CFR 125.3(c)(2). ,54 The following examples illustrate the
inconsistency in the agency's practice of evaluating and applying technology -based limits based
on best professional judgment in NPDES permits for direct industrial dischargers.
49 N.C. Gen. Stat. § 143-215.1(c)(1).
50 Id. § 143-215.1(h) (applying to applicants for new or modified NPDES permits).
51 See Letter from Douglas Dowden, Env't Program Supervisor, N.C. Dep't of Env't Quality, to Brian Lyncha,
Senior Project Manager, Verdantas LLC (June 12, 2023), Attachment 5.
52 See Section IV(A)(1).
53 N.C. Dep't of Env't Quality, Response to SELC Comments--NPDES Permit No. NCO089109 at 1 (July 10, 2023)
[hereinafter "Response to SELC Befesa Comments"], Attachment 6.
54 N.C. Dep't of Env't Quality, Final Fact Sheet for NPDES Permit No. NCO09000 at 8 [hereinafter "Colonial Final
Fact Sheet"], Attachment 7.
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A. Examples of Permits Without Technology -Based Limits
1. Befesa Zinc Metals - NPDES Permit No. NCO089109
Befesa Zinc Metals operates a hydrometallurgical zinc metal production facility that
extracts zinc from waelz oxide, which is itself produced from electric arc furnace dusta
hazardous waste.55 The facility discharges its effluent to the Broad River near Forest City under
NPDES Permit No. NCO08910956 and is not subject to national effluent limitation guidelines."
According to the facility's owner, "there is no wastewater treatment system" at the facility58 and,
as a result, its effluent "has a very high concentration of chlorides," along with arsenic,
cadmium, chromium, copper, cyanide, lead, nickel, zinc, selenium, molybdenum, and other
pollutants.59 The effluent is harmful enough that it cannot be discharged "to the soil surface"
because it will "contaminate the soil and the aquafer [sic]."60 Nor can it be sent to the nearby
publicly owned treatment works because "it will cause a major toxicity problem ... which will
result in a complete failure of [that system]."61 Instead, it is piped without treatment directly into
the Broad River.
The facility has identified for the Department at least three treatment technologies
Reverse Osmosis, electrodialysis, and chemical precipitation —that could control pollution in the
company's effluent before it reaches the Broad River and downstream communities, especially
55 R. Buse et al., Metals Recovery from Furnaces Dust: Waelz Process, 5 La Metallurgia Italiana 106, 19-27 (2014),
https://www.research at�publication/286726050 Metals recovery from furnaces dust Waelz process.
56 See N.C. Dep't of Env't Quality, Final NPDES Permit No. NC0089109 (July 31, 2023) [hereinafter "Befesa Zinc
Permit"], Attachment 8.
57 See N.C. Dep't of Env't Quality, Fact Sheet for NPDES Permit No. NC0089109 at 1 (May 3, 2023) [hereinafter
`Befesa Zinc Fact Sheet"], Attachment 9.
58 Befesa Zinc Metals, Permit Renewal Application No. NC0089109 at PDF pg. 40 (Dec. 29, 2022), Attachment 10.
59 Befesa Zinc Fact Sheet, supra note 57, at 2.
60 Id.
61 Id.
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chlorides.62 Of these three, the facility identified Reverse Osmosis as the "most effective ...
treatment option[] for the high chloride concentrations in the process waste."63 Reverse Osmosis
was also identified as the "most feasible treatment option for removal of chlorides" and the
facility explained that it could reduce chloride levels by approximately 97%.64 The facility has
developed price estimates for installing this technology and provided that information to the
Department.65 But instead of using this information to evaluate technology -based limits based on
best professional judgment, the Department explained that it has no intention of evaluating and
developing technology -based limits at all.66
As a result, the facility's NPDES permit includes no technology -based limits whatsoever,
which allows unnecessarily high (in fact, virtually unlimited) discharges of chlorides and other
pollutants into the Broad River. The only numeric limit in the permit is a water -quality -based
limit for cadmium.67
In connection with the facility's recent renewal of its NPDES permit, MountainTrue
raised concerns regarding the need for technology -based limits, pointing out that the facility had
already provided much or all of the information the Department needs to use its best professional
judgment to develop such a limit. The Department's response to comments (prepared just five
business days later) dismissed the technology -based obligation outright, citing concerns over
capacity and potential legal challenges.68 The Department plainly made no effort to develop
technology -based limits for this facility. As a result, downstream communities, river users, and
6' Befesa Zinc Metals, Permit Renewal Application No. NC0089109 at PDF pg. 17 (Sept. 8, 2017), Attachment 11.
The 2017 application was submitted by the previous facility owner —American Zinc Products, LLC.
63 Id.
64 Id. at PDF pgs. 23, 17.
61 Id. at PDF pg. 17.
66 See Response to SELC Befesa Comments, supra note 53, at 1 (explaining that the Department made no attempt to
evaluate and apply technology -based limits based on best professional judgment at this facility).
67 See Befesa Zinc Permit, supra note 56.
68 See Response to SELC Befesa Comments, supra note 53, at 1.
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wildlife continue to bear the burden of Befesa Zinc Metals' polluted discharge even though
technologies exist that could reduce some pollutants in the effluent by as much as 97%.
2. Quartz Corp USA - NPDES Permit No. NC0000353
Quartz Corp USA ("Quartz Corp") is permitted to discharge 3.5 million gallons per day
of effluent from feldspar mine operations into the North Toe River near Spruce Pine.69 The
facility is not subject to national effluent limitation guidelines and is currently operating under an
administratively continued NPDES permit that was issued in 2012 but expired in 2016.70 The
Department provided a revised, draft permit for public review in 2018, but never finalized that
permit. 71
The Department did not attempt to develop technology -based limits in either the active
2012 permit or the draft 2018 permit. Both permits include only water -quality -based limits.72
The fact sheet accompanying the 2018 draft permit explains that the Department chose to forego
technology -based limits because the "facility is not subject to any [national] Effluent Limitation
Guidelines," but the fact sheet says nothing about any attempt to develop limits based on the
Department's best professional judgment.73 As a result of the Department's failure to
appropriately consider technology -based limits over multiple permitting cycles, the permit only
has lax and outdated water -quality -based limitslimits that have not changed since at least
1996.74
69 N.C. Dep't of EnVt Quality, Final NPDES Permit No. NC0000353 (Apr. 30, 2012) [hereinafter "2012 Quartz
Corp Permit"], Attachment 12.
70 Id.
71 N.C. Dep't of EnVt Quality, Draft Fact Sheet for NPDES Permit No. NC0000353 (Sept. 19, 2018) [hereinafter
"Draft Quartz Corp Fact Sheet"], Attachment 13.
72 2012 Quartz Corp Permit, supra note 69, at 7; Draft Quartz Corp Fact Sheet, supra note 71, at 7-8.
73 Draft Quartz Corp Fact Sheet, supra note 71, at 6.
74 N.C. Dep't of EnVt Quality, Final NPDES Permit No. NC0000353 (Dec. 16, 1996), Attachment 14.
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Treatment technologies have long been available to reduce the pollution in this facility's
discharge. In the 1970s, EPA began the process of developing national effluent limitation
guidelines that would apply to Quartz Corps' discharge but never finalized those guidelines.75
The guidelines would have applied to fluoride and total suspended solids —two pollutants of
particular concern in Quartz Corps' discharge because they can adversely affect downstream
populations of endangered Appalachian elktoe mussels.7' Through the process of developing
national effluent limitation guidelines, EPA identified a treatment technology —single -stage
chemical precipitation —that could reduce fluoride concentrations to less than 10 mg/L.77 In
2010, EPA revisited its 1970s findings and found that "[c]urrent technologies are achieving
fluoride concentrations at least as effective, sometimes achieving 2 mg/L effluent fluoride."78
Some of these treatment technologies have been used by similar dischargers in other places for
nearly fifty years.79 Nevertheless, the Department has refused to use, or even consider, these
technologies in developing technology -based limits for Quartz Corps' discharge. Instead, the
Department continues to rely on decades -old water -quality -based limits, allowing Quartz Corp to
release unnecessary excess pollution into the North Toe River.
3. DAK Americas - NPDES Permit No. NC0003719
DAK Americas, LLC, operates an industrial facility in Fayetteville, which consists of
three manufacturing operations, including a resins plant, a polyethylene terephthalate plant, and a
75 See, e.g., U.S. Env't Prot. Agency, Development Document for Interim Final Effluent Limitations Guidelines and
New Source Performance Standards for the Mineral Mining and Processing Industry Point Source Category (1976),
hLtps://www.epa.gov/sites/default/filcs/2015-10/documents/mineral mining dd 1976.pdf.
76 See Appalachian Elktoe Determined To Be an Endangered Species, 59 Fed. Reg. 60,324, 60,326 (Nov. 23, 1994)
(codified at 50 C.F.R. § 17.11).
77 See U.S. Env't Prot. Agency, Technical Support Document for the 2010 Effluent Guidelines Program Plan, EPA
820-R-10-021 at 9-14 (Sept. 2011), Attachment 15.
78 Id. at 9-20.
79 Id.
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recycling facility.80 All three operations produce wastewater that is processed through an onsite
wastewater treatment plant and then discharged into the Cape Fear River less than 10 miles
upstream of a drinking water supply.81
DAK Americas discharges wastewater pursuant to NPDES Permit No. NC0003719,
which was issued in August 2018 and expired in October 2022 but has been administratively
continued.82 Among other pollutants, DAK Americas discharges extraordinarily high levels of
1,4-dioxane, a probable human carcinogen.83 Since August 2018, DAK Americas' average daily
discharge of 1,4-dioxane has exceeded 5,300 parts per billion, a number more than 15,000 times
what the state considers safe for drinking water supplies.84 Over the past five years, DAK
Americas' 1,4-dioxane discharges have reached concentrations as high as 22,000 parts per
billion85 and has exceeded 10,000 parts per billion in nearly 20% of the samples collected.86
DAK Americas also discharges per- and polyfluoroalkyl substances ("PFAS"), chemicals known
to cause harm to human health and the environment even at extremely low levels of
contamination.87 These chemicals build up in the human body and can cause a host of health
problems including developmental effects to fetuses and infants, kidney and testicular cancer,
liver malfunction, ulcerative colitis, and many others.88 PFAS also harm wildlife and can
80 DAK Americas, Permit Renewal and Modification NPDES Permit No. NC0003719 at PDF pgs. 4-11 (May 3,
2022), Attachment 16.
81 Id. at PDF pgs. 13, 81.
82 N.C. Dep't of Env't Quality, NPDES Permit No. NC0003719 (June 18, 2018), Attachment 17.
ss See Summary of DAK Americas' Discharge Monitoring Reports (2018-2023) [hereinafter "DAK 2018-2023
DMRs Summary"], Attachment 18. This summary of DAK Americas' discharge monitoring reports was prepared by
the Southern Environmental Law Center. The discharge monitoring reports for the relevant period are over 500
pages but can be provided if necessary.
14 Id.; N.C. Dep't of Env't Quality, Cape Fear Industrial PFAS & 1,4-dioxane Sampling at 11 (2020) [hereinafter
"Cape Fear Sampling"], Attachment 19.
81 DAK 2018-2023 DMRs Summary, supra note 83 (1,4-dioxane concentration on September 30, 2018).
86 See generally id.
87 Cape Fear Sampling, supra note 84, at 11.
88 Arlene Blum et al., The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFAS), 123 Env't Health
Persp. 5, A 107 (2015); U.S. Env't Prot. Agency, Drinking Water Health Advisories for PFAS: Fact Sheet for

bioaccumulate in fish at levels that make the fish unsafe to eat.89 Neither PFAS nor 1,4-dioxane
are subject to national effluent limitation guidelines.
DAK Americas' 2018 NPDES permit did not impose technology -based limits or water -
quality -based limits for PFAS or 1,4-dioxane. And the Department refused to evaluate or impose
technology -based limits for either chemical in a recent draft permit issued to the facility —despite
years of sampling confirming the presence of these pollutants in DAK Americas' discharge. 90
Instead, contrary to federal and state law, the agency opted to only include monitoring conditions
for PFAS and 1,4-dioxane.91 The Department's refusal to control PFAS and 1,4-dioxane stands
in stark contrast to how the agency handled other pollutants in the draft NPDES permit.
Technology -based limits for biochemical oxygen demand and total suspended solids released
from DAK America's recycling plant "were developed based on [best professional judgment]."92
The Department has indicated it will "reassess[]" the need for a water -quality -based limit for
1,4-dioxane, but continues to ignore PFAS and the requirement to impose technology -based
limits for both pollutants.93
Evaluating technology -based limits as required by law would show that technology exists
to remove 1,4-dioxane and PFAS from industrial wastewater. 1,4-Dioxane can be removed using
Communities at 1-2 (2022), hgps://perma.cc/T7F0-EKD6; 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 (2023).
89 See N.C. Dep't of Health & Human Servs., NCDHHS Recommends Limiting Fish Consumption from the Middle
and Lower Cape Fear River Due to Contamination With "Forever Chemicals" (July 13, 2023),
hLtps://www.ncdhhs.,gov/news/press-releases/2023/07/ 13/ncdhhs-recommends-limiting-fish-consumption-middle-
and-lower-cape-fear-river-due-contamination.
91 N.C. Dep't of Env't Quality, Draft NPDES Permit No. NC0003719 at 3, 5 (Apr. 27, 2023) [hereinafter "Draft
DAK Permit"], Attachment 20; N.C. Dep't of Env't Quality, Draft Fact Sheet NPDES Permit No. NC0003719 at 6-
7 (Feb. 27, 2023) [hereinafter "Draft DAK Fact Sheet"], Attachment 21.
91 Draft DAK Permit, supra note 90, at 3, 5.
92 Draft DAK Fact Sheet, supra note 90, at 6. Limits for biochemical oxygen demand and total suspended solids
released from DAK Americas' resins operations are subject to a national effluent limitation guideline and limits
were applied to those discharges accordingly.
" Jenny Graznak, N.C. Dep't of Env't Quality, Semi -Annual Progress Report on 1,4-dioxane in the Cape Fear
River Basin at slide 19-20 (July 12, 2023).
-19-

advanced oxidation processes, such as using ultraviolet light in combination with hydrogen
peroxide.94 A similar process has been used at the Tucson International Airport Area Superfund
Site to remove legacy 1,4-dioxane contamination.95 That treatment system can remove over 97%
of the chemical from polluted water.96 Other treatment options are similarly effective, including
ozone -based and catalytic advanced oxidation processes.97 Treatment technology for 1,4-dioxane
has also been installed to treat wastewater discharges at facilities in North Carolina.98
Like 1,4-dioxane, PFAS can be effectively removed with available technologies, and the
Department has required use of those technologies in NPDES permits. For example, a granular
activated carbon treatment system at the Chemours' facility (discussed in more detail below) has
reduced PFAS concentrations in wastewater as high as 345,000 parts per trillion to nearly
nondetectable concentrations,99 improving the drinking water supply for nearly 500,000 people
downstream.
94 Arnie C. McElroy et al., 1,4-Dioxane in Drinking Water: Emerging for 40 Years and Still Unregulated, 7 Current
Op. in Env't Sci. & Health 117, 119 (2019), hlWs://www.sciencedirect.com/science/article/abs/pii/
S2468584418300485?via%3Dihub; TrojanUV, Update on Emerging Contaminants: 1,4-dioxane: Advanced
Oxidation Processes (2022), hgps://cdn.brandfolder.io/MA3415EC/at/9xxcn88kxgbnk985p2kmt/TUN 1 4
Dioxane Fact Sheet EN.pdf
95 See TrojanUV, Advanced Treatment for 1,4-Dioxane — Tucson Removes Contamination Through UV -oxidation
(2019), https://www.resources.trojanuv.coM wp-content/uploads/2018/05/Treatment-of-Groundwater-
Contaminated-with-l4-Dioxane-Tucson-Arizona-Case-Study-Environmental-Contaminant-Treatment.pdf.
96 Id. at 2.
91 See Yuyin Tang and Xinwei Mao, Recent Advances in 1,4-dioxane Removal Technologies for Water and
Wastewater Treatment, 15 Water 1535 (2023), https://www mdpi.com/2073-4441/15/8/1535.
96 See, e.g., City of Greensboro, EMC SOC WQ S19-010 Year One Report: May 1, 2021— April 30, 2022 at 4 (June
13, 2022), hLtps://www.greensboro-nc.gov/home/sho"ublisheddocument/53017/637908166316270000.
99 See Parsons, Engineering Report — Old Outfall 002 GAC Pilot Study Results (Sept. 2019),
hops://www. chemours. com/j a/-/media/files/corporate/ 12e-old-outfa11-2-gac-pilot-report-2019-09-
30.pdPrev=6el242091aa846f888afa895eff80e2e&hash=040CAA7522E3D64B9E5445ED6F96BOFB; see also
Chemours Outfall 003, NPDES No. NCO089915 Discharge Monitoring Reports (2020-2022),
hj�2s://penna.cc/8YND-XT5M.
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4. Camp Lejeune Advanced Wastewater Treatment Plant — NPDES Permit No.
NCO063029
In response to the recent discovery of extensive PFAS contamination at Camp Lejeune,
the United States Marine Corps has sought to operate two mobile PFAS treatment systems which
would use granular activated carbon and ion exchange technologies to treat "PFAS impacted
construction or operational wastes, including groundwater," in Onslow County.' 00 The
wastewater from the contaminated operations and groundwater will be pumped into the PFAS
remediation systems, treated, and ultimately discharged into the New River. 101
The Department issued a final permit to Camp Lejeune that addresses the operation of
these treatment systems,102 but does not impose technology -based limits.103 Instead, the
Department imposed a water -quality -based limit of 70 parts per trillion for two PFAS
compounds based on an obsolete "EPA health advisory,"104 which EPA has since determined is
too lenient to protect human health.10s The Department ignored its obligation to impose
technology -based limits despite the fact that the agency previously told the permittee it would
"implement[] [best professional judgment] standards on [a] case by case basis" for PFAS
specifically in this permit.10'
'00 N.C. Dep't of Env't Quality, Fact Sheet NPDES Permit No. NCO063029 at 2 (May 24, 2023) [hereinafter "Camp
Lejeune Fact Sheet"], Attachment 22; see also E-mail from Travis Voorhees, Env't Eng'r, U.S. Marine Corps, to
Charles Weaver and Emily Richards, Env't Eng'r, N.C. Dep't of Env't Quality (Dec. 28, 2022), Attachment 23.
10' Camp Lejeune Fact Sheet, supra note 100, at 2.
102 See N.C. Dep't of Env't Quality, NPDES Permit Modification Permit No. NCO063029 (Aug. 3, 2023),
Attachment 24.
101 Id. at 13.
104Id.; Camp Lejeune Fact Sheet, supra note 100, at 3.
'0' Lifetime Drinking Water Health Advisories for Four Perfluoroalkyl Substances, 87 Fed. Reg. 36,848, 36,848-49
(June 21, 2022).
106 Email from Sergei Chernikov, Env't Eng'r, N.C. Dep't of Env't Quality, to Charles Weaver, Env't Specialist,
N.C. Dep't of Env't Quality (Jan. 3, 2023), Attachment 23.
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Through the permitting process, Camp Lejeune disclosed its plans to use granular
activated carbon and ion exchange technologies to treat the PFAS contamination.107 The
Department knows from other facilities that these technologies can remove PFAS to virtually
non -detectable levels. Nevertheless, the Department chose not to use the information provided by
Camp Lejeune to develop technology -based limits.
Inclusion of technology -based limits in this permit is critical because the technologies
Camp Lejeune has chosen are only effective if properly maintained. Appropriately developing
technology -based permit limitsas opposed to the much more lax and obsolete water -quality -
based limit in Camp Lejeune's permit —requires dischargers to conduct frequent maintenance,
thereby protecting the public from unnecessary and dangerous PFAS pollution. To be sure,
Conservation Groups do not question Camp Lejeune's intention to properly maintain its
treatment technologies, but incorporating technology -based limits is still important to give the
public legal assurance that those technologies will be optimally operated.
B. Examples of Permits with Technology -Based Limits
1. Chemours - NPDES Permit No. NCO090042
The Chemours Company FC, LLC ("Chemours") is a chemical manufacturing facility in
Fayetteville. Among other chemicals, Chemours manufactures PFAS and has been releasing
those toxic chemicals into the Cape Fear River —upstream of the drinking water supply for
nearly 500,000 people —for over four decades.108 Following legal action instituted by the
Department and Cape Fear River Watch, Chemours was required to construct a groundwater
107 See Camp Lejeune Fact Sheet, supra note 100, at 1.
108 Steve DeVane, GenX Not the Only Possible Toxin in Cape Fear River, The Fayetteville Observer (July 15, 2017),
ho2s://perma.cc/KPY7-ROZM; see Vaughn Hagerty, Toxin Taints CFPUA Drinking Water, Star News Online (June
7, 2017); see also Cape Fear Public Utility Authority, 2022 Annual Report (2022), htt2s://perma.cc/KY3P-59F2
(explaining the utility serves 200,000 people); Brunswick Cnty. N.C., Frequently Asked Questions: Water Treatment
Upgrades and Rates, htt2s://perma.cc/U6G0-2KJN (explaining the utility serves over 300,000 people).
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treatment system that would capture, pump, and treat PFAS-contaminated groundwater before it
reached the Cape Fear River.109
To operate the groundwater treatment system, Chemours was required to obtain an
NPDES permit. In September 2022, the Department issued Chemours NPDES Permit No.
NC0090042, which imposed technology -based limits for two specific PFAS in Chemours'
discharge.110 To calculate the technology -based limits for these pollutants, the Department used
"best professional judgement," "the procedure established in Chapter 5 of USEPA NPDES
Permit Writers' Manual," and data showing that granular activated carbon could reduce PFAS in
the discharge to virtually non -detectable levels."' Relying on "system design" and the
reductions that granular activated carbon could achieve, the Department established technology -
based limits for the two PFAS at issue at 20 and 10 parts per trillion, respectively.112 In issuing
the permit, the Department recognized that the "limits that must be included in an NPDES permit
... must ... ensure compliance with all applicable regulations, including regulations concerning
the establishment of [technology -based limits] based on the permitting record before the agency
at the time of permit issuance."113
2. Colonial Pipeline - NPDES Permit No. NCO090000
NPDES Permit No. NCO09000 authorizes Colonial Pipeline Company to discharge
effluent into North Prong Clark Creek from a groundwater remediation system installed to clean
109 Consent Order, North Carolina v. The Chemours Company FC, LLC, 17 CVS 580 (Bladen Cnty. Super. Ct., Feb.
25, 2019); Addendum to Consent Order Paragraph 12, North Carolina v. The Chemours Company FC, LLC, 17
CVS 580 (Bladen Cnty. Super. Ct., Oct. 12, 2020).
10 N.C. Dep't of Env't Quality, NPDES Permit No. NC0090042 at 3 (Sept. 15, 2022) [hereinafter "Chemours
Outfall 004 Permit"], Attachment 25.
111 N.C. Dep't of Env't Quality, Fact Sheet NPDES Permit No. NC0090042 at 13-14 (Sept. 14, 2022) [hereinafter
"Chemours Fact Sheet"], Attachment 26.
112 Chemours Outfall 004 Permit, supra note 110, at 3.
113 N.C. Dep't of Env't Quality, Hearing Officer Report for New NPDES Permit NC0090042, The Chemours
Company FC, LLC, Fayetteville, NC at 2, 5 (July 14, 2022), Attachment 27.
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up a 2020 gasoline pipeline spill near Huntersville.114 The effluent includes a host of pollutants
commonly found in gasoline including lead, benzene, and chloromethane, among others.115
After acknowledging that "[t]here are no effluent limitation guidelines" applicable to the
discharge, the Department developed technology -based limits "[b]ased on best professional
judgment in accordance with 40 CFR 125.3(c)(2)."116 These limits were developed in light of the
"original goal of the [NPDES] program ... to eliminate all point source discharges to surface
waters by 1985," a goal the Department acknowledged "was not achieved," but that "the NPDES
program continues to strive toward." 117
Consistent with the Clean Water Act and state law, technology -based limits "were
implemented in the final permit where [they were] found to [be] more stringent than [water -
quality -based effluent limitations]."118 These technology -based limits were developed based on
the Department's review of technologies used by "similar industrial methods." 119
By following the law and imposing technology -based limits, the Department secured
meaningful protections for downstream communities. For example, the draft permit for this
facility included a water -quality -based limit of 274 µg/L for benzenea known human
carcinogen. To the Department's credit, it replaced the water -quality -based limit in the draft
permit with a technology -based limit in the final permit which reduced allowable benzene
concentrations to 37 µg/L an 86% reduction.120
114 See N.C. Dep't of Env't Quality, NPDES Permit No. NCO090000 (June 14, 2023), Attachment 28.
115 Id
116 See Colonial Final Fact Sheet, supra note 54, at 11, 8.
117 Colonial Hearing Report, supra note 16, at 30.
"' Colonial Final Fact Sheet, supra note 54, at 8.
119 Id
120 Id.
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V. Argument
A. The Department must evaluate and apply technology -based limits using its best
professional judgment in NPDES permits for direct industrial dischargers.
The Clean Water Act and North Carolina law leave the Department no discretion to
refuse to evaluate and apply technology -based limits based on the agency's best professional
judgment in NPDES permits for direct industrial dischargers. Under the Clean Water Act,
technology -based limits "represent the minimum level of control that must be imposed in a
permit" and these limits must be established based on best professional judgment when national
effluent limitation guidelines are unavailable —as they are for most pollutants and industries.121
North Carolina law requires that "[a]ny state NPDES permit shall contain effluent limitations
and standards required by 15A NCAC 02B .0400 and the Clean Water Act, which is hereby
incorporated by reference including any subsequent amendments and editions."122 Elsewhere,
North Carolina law mandates that "[e]ffluent limitations shall be developed by the staff for all
existing or proposed discharges to the surface waters of the state."123 Use of the imperatives
"must" and "shall" leave the Department no option: technology -based limits must be evaluated
and applied whether based on best professional judgment or national effluent limitation
guidelines.
EPA has outlined factors the Department must consider when developing technology -
based limits using its best professional judgment.124 North Carolina law has incorporated these
requirements 125 and has further explained that technology -based limits developed using best
12140 C.F.R. § 125.3(a) (emphasis added).
122 15A N.C. Admin. Code 2H .0118 (emphasis added).
123 Id. § 2B .0404 (emphasis added).
124 40 C.F.R. § 125.3(d).
125 15A N.C. Admin. Code 2H .0118; see also id. 2H .0143(46) (incorporating by reference 40 CFR Part 125,
Subpart A).
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professional judgment "shall be calculated by the staff using the projected limits of the
Environmental Protection Agency, the Environmental Protection Agency development
document, and other available information." 126 EPA has additionally identified "numerous
resources" to assist permit writers.127 And the Department has relied on these factors to develop
technology -based limits using best professional judgment in recent NPDES permits, including
Chemours (Permit No. NC0090042) and Colonial Pipeline (Permit No. NC0090000).
Much of the information needed to evaluate technology -based limits can be provided by
permittees, and North Carolina law gives the Department clear authority to demand this
information during the permitting process.128
The potential application of water -quality -based limits does not excuse the Department's
obligation to impose technology -based limits. Rules promulgated by the Environmental
Management Commission are clear that technology -based limits must be evaluated and imposed
"even if the receiving waters affected can or are expected to be able to accept higher pollutant -
load levels and still meet applicable water quality standards."129 Where a discharge "is subject to
both [technology -based limits] and [water -quality -based] effluent limitations for a parameter, the
more stringent limit shall apply."130 Water -quality -based limits are only necessary if technology -
based limits do not ensure compliance with water quality standards.
Federal law and the rules promulgated by the Environmental Management Commission
leave the Department no option: it must evaluate and apply technology -based limits based on
best professional judgment in NPDES permits for direct industrial dischargers.
126Id. § 2B .0406(b)(3).
127 NPDES Permit Writers' Manual, supra note 20, at 5-47.
12' N.C. Gen. Stat. § 143-215.1(c)(1) (authorizing the Department to "require an applicant to submit plans,
specifications, and other information the [Department] considers necessary to evaluate the application").
121 15A N.C. Admin. Code 2B .0403(6).
"' Id. § 2B .0404(a).
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B. The Department inconsistently evaluates and applies technology -based limits based
on best professional judgment in NPDES permits for direct industrial dischargers.
Despite the mandates of the Clean Water Act and state law, the Department
inconsistently fulfills these obligations. As described above, the Department made no effort to
evaluate technology -based limits in the permit for Befesa Zinc Metals (Permit No. NC0089109),
despite possessing information showing that feasible technologies are available that would
reduce some discharges by as much at 97%.' 31 The permit for DAK Americas (Permit No.
NC0003719) similarly includes no technology -based limit for 1,4-dioxane, despite the
availability of technologies to significantly reduce the amount of 1,4-dioxane pollution in the
facility's effluent —pollution that frequently causes exceedances of what the Department
considers safe for drinking water supplies.
These permitting decisions stand in contrast to the Department's approach with Colonial
Pipeline (Permit No. NC009000) where it followed the law and exercised its best professional
judgment by reviewing "similar industrial methods" to develop and impose technology -based
limits where they were "found to [be] more stringent than [water -quality -based]" limits.112 The
technology -based limit in the Colonial Pipeline permit resulted in important improvements to
water quality and protections for the local community by reducing discharges of benzene by 86%
as compared to the originally proposed water -quality -based limit.
The Department has also inconsistently imposed technology -based limits based on its
best professional judgment for the same pollutant. Chemours and Camp Lejeune both operate
treatment systems with granular activated carbon to remove HAS from contaminated waste
streams. But the Department has acknowledged its obligation and exercised best professional
" See supra Section IV(A)(1).
112 Colonial Final Fact Sheet, supra note 54, at 8.
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judgment to establish technology -based limits for PFAS only for Chemours, not for Camp
Lejeune. In addition, DAK Americas has documented PFAS pollution, and the Department did
not impose technology -based limits in the facility's draft permit (nor the current, active permit).
Nothing suggests that the same PFAS-reducing technology employed at Chemours and Camp
Lejeune could not also be employed at DAK Americas.
Finally, the Department has inconsistently applied technology -based limits based on its
best professional judgment even within the same permit. In the draft permit for DAK Americas,
the Department established technology -based limits for biochemical oxygen demands and total
suspended solids that "were developed based on [best professional judgment],"133 but made no
effort to exercise its best professional judgment to develop technology -based limits for PFAS or
1,4-dioxane.
Over time, the Department has generated a host of excuses to explain its inconsistent
practice and interpretation, none of which withstand scrutiny. At times, the Department has
justified its refusal to impose technology -based limits by explaining that the "facility is not
subject to any [national effluent limitation guidelines],"134 while other times it has acknowledged
"there are no [national effluent limitation guidelines]" but still proceeded to develop technology -
based limits "[b]ased on best professional judgment."13s To be clear, the lack of national effluent
limitation guidelines is what triggers the requirement to develop technology -based limits using
best professional judgment.
133 Draft DAK Fact Sheet, supra note 90, at 6. Limits for biochemical oxygen demand and total suspended solids
released from DAK Americas' resins operations are subject to a national effluent limitation guideline and limits
were applied to those discharges accordingly.
134 Id
131 Colonial Final Fact Sheet, supra note 54, at 11.

In some permits, the Department has claimed that it "has no institutional capacity to
develop [technology -based limits using best professional judgment] in according [sic] with the
EPA guidance."' 36 But for others, the Department had capacity to develop technology -based
limits using "best professional judgement" and "the procedure established in Chapter 5 of
USEPA NPDES Permit Writers' Manual."137
Finally, the Department has refused to develop technology -based limits in some permits,
citing concerns that any effort to do so would elicit "legal challenges"presumably from
industrial permittees.138 But fear of a hypothetical legal challenge is no excuse for failing to
implement the Clean Water Act's requirement of technology -based limits —one of the statute's
key strategies for protecting and improving water quality.
In conclusion, the Department has inconsistently applied technology -based limits,
exposing downstream waters —and the communities that rely on them —to excessive and
unnecessary levels of pollution. The Department's various excuses for this inconsistency do not
negate the agency's obligation to follow the law.
C. Application of technology -based requirements is particularly important for pollutants
that lack numeric water aualitv standards.
Proper evaluation and application of technology -based limits using best professional
judgment is particularly critical for harmful pollutants like PFAS and 1,4-dioxane that lack
numeric water quality standards. Only a fraction of the pollutants found in our waters have
numeric water quality standards. Although narrative, or non -numeric, water quality standards
i36 See Response to SELC Befesa Comments, supra note 53, at 1.
See Chemours Fact Sheet, supra note 111, at 13-14.
i3a See Response to SELC Befesa Comments, supra note 53, at 1.
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exist to protect our waters, permit writers frequently fail to calculate water -quality -based limits
without a numeric water quality standard.139
For example, after Colonial Pipeline acknowledged that 2-Chlorotoluene had been
detected in its wastewater, the Department refrained from establishing a permit limit because
there is no water quality "standard or criteria" that could be used to develop a water -quality -
based limit.140 Separately, the Department has told at least one PFAS discharger that it has no
intention of imposing numeric permit limits for PFAS until numeric water quality standards are
developed. 14 1 The Department's refusal to develop limits for pollutants which lack numeric
water quality standards underscores the importance of using technology -based limits —which are
applied irrespective of water quality standards —for those pollutants, including (among many
others) 2-Chlorotoluene, PFAS, and 1,4-dioxane.
D. The Department's inconsistent practice arbitrarily leaves communities at risk.
The Department's inconsistent practice has real consequences —most notably, it extends
the benefit of technology -based limits unevenly and unfairly by granting protections from some
direct industrial dischargers to some communities while arbitrarily denying them for others.
Communities in the vicinity of and downstream of Chemours' facility receive the benefit of
technology -based limits for PFAS in Chemours' permit while communities in the vicinity of and
downstream of Camp Lej eune and DAK Americas do not benefit from similar protections in
those permits. Wildlife near Colonial Pipeline's discharge receive the benefit of technology-
"' North Carolina's narrative toxic substances standard, 15A N.C. Admin. Code 2B .0208, applies to discharges of
PFAS and 1,4-dioxane. The Department has acknowledged so in multiple settings. The Department does not
consistently set limits based on this narrative standard, however, and the application of narrative standards in
NPDES permits faces significant pushback from polluters.
141 See Colonial Final Fact Sheet, supra note 54, at PDF pg. 46.
141 Letter from Julie Grzyb, Deputy Director, N.C. Dep't of Env't Quality Div. of Water Res., to Ronald Gaskins,
Lumberton Energy Holdings, LLC (Nov. 17, 2022) (explaining that the Department is in the process of developing
water quality standards for PFAS and "[i]n the meantime" the agency is imposing a monitoring condition for the
chemicals), Attachment 29.
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based limits, while wildlife near Quartz Corps' and Befesa Zinc Metals' discharges do not. These
consequences play out across North Carolina, including for Conservation Groups and their
members as explained in more detail in Attachment 1.
VI. Proposed Rulings
Pursuant to N.C. Gen. Stat. § 150134(a), Conservation Groups respectfully request that
the Environmental Management Commission issue a ruling declaring that:
a) When National Pollutant Discharge Elimination System permits are issued to direct
industrial dischargers, the Department of Environmental Quality must evaluate and apply
technology -based effluent limitations consistent with 40 C.F.R. § 125.3(a) for pollutants
in the discharge that can be treated or otherwise removed. This evaluation must be
documented in the permit fact sheet.
b) The Department of Environmental Quality's assessment of technology -based effluent
limitations must be made irrespective of the need for any water -quality -based effluent
limitations.
c) For direct industrial dischargers, where the Environmental Protection Agency has not
promulgated national effluent limitation guidelines for a particular pollutant, industry, or
portion of a discharger's operation, the Department of Environmental Quality must
evaluate and apply technology -based effluent limitations according to the agency's "best
professional judgment."
VII. Request for Oral Argument
Conservation Groups respectfully request the opportunity for oral argument. The correct
and consistent application of technology -based limits developed using best professional
judgment is critical to protecting water quality and people in the state. This important issue
warrants a hearing.
VIII. Conclusion
Conservation Groups have repeatedly brought the concerns reflected in this petition to the
Department's attention, but the agency has refused to change its practice of selectively (and
rarely) implementing technology -based limits. Conservation Groups file this request for a
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declaratory ruling to bring the Department into consistent compliance with the Clean Water Act
and North Carolina law. If the Environmental Management Commission fails to issue a
declaratory ruling in Conservation Groups' favor, the Department's inconsistent exercise of its
best professional judgment to establish technology -based limits will be prolonged, continuing to
leave communities at risk by allowing unlawful water pollution across North Carolina. These
ongoing harms and the Department's inconsistent application of the law, including 15A N.C.
Admin. Code 2H .0118, justify issuance of a declaratory ruling.
Respectfully submitted this the 23rd day of August 2023.
J. Patrick Hunter
N.C. Bar No. 44485
[e-mail]
Alyson Merlin
N.C. Bar No. 58223
[e-mail]
Southern Environmental Law Center
48 Patton Avenue, Suite 304
Asheville, NC 28801-3321
Telephone: [phone]
Hannah Nelson
N.C. Bar No. 56565
[e-mail]
Southern Environmental Law Center
601 W. Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
Telephone: [phone]
Counsel for Petitioners
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