NC0000400_Comments_20190503

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 48 PATTON AVENUE,SUITE 304 Facsimile 828-258-2024
ASHEVILLE.NC 28801-3321
May 3, 2019
Via U.S. Mail and E-mail
DWR Wastewater Permitting
North Carolina Department of Environmental Quality
1617 Mail Service Center
Raleigh,N.C. 27699-1617
publiccomments a,ncdennizov
Re: North Toe Mines, Supplemental Comments on Renewal of NPDES permits for
Pollution Discharges to the North Toe River(NPDES Permits NC0000175,
NC0000353,NC0000361,NC0000400,NCO084620 and NC0085839)
On behalf of the French Broad Riverkeeper, MountainTrue, Defenders of Wildlife, and
the Southern Environmental Law Center, we provide these additional comments on DEQ's
proposed renewal of pollution discharge permits for six facilities that process mineral ore and
discharge wastewater into the North Toe River near Spruce Pine. These comments supplement
our prior comments, submitted February 7 and 19, 2019, and we incorporate them by reference.
We previously commented with changes that should be made to the draft permits and DWR's
permitting approach. These changes are necessary to comply with minimum requirements of
federal and state law, to meaningfully improve conditions in the North Toe River, and to meet
the basic objective of the Clean Water Act ("CWA") to restore and maintain the "chemical,
physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In addition to
those concerns, we note the following issues:
• Stream Classification: The Red Hill facility(NC0085839) discharges into a segment of
the North Toe River classified as a Class B water.1 The draft permit incorrectly indicates
this portion of the North Toe River is a Class C water. As a Class B water, the North Toe
River at this location must meet Class C standards plus additional criteria specific to
Class B. Class C requires waters to be suitable for aquatic life and secondary recreation—
for example,boating, fishing, wading and other similar uses—and limits the presence of
waste and other"deleterious substances"to "only such amounts as shall not render the
waters injurious to public health, secondary recreation or to aquatic life and wildlife
aesthetic quality, or impair the waters for any designated uses." 15A N.C. Admin. Code
213.0101(c)(1), .0211(12) (standards for Class C waters). Class B waters must meet
additional criteria, like suitability for"outdoor bathing areas" and"primary recreation,"
which includes frequent swimming. As we noted in previous comments, the draft
permits are silent on compliance with North Carolina's narrative water quality criteria
'See DEQ Surface Water Classifications,available at
https://ncdenr.maps.arcizis.com/apps/webNpviewer/index.html?id=6e l25ad7628f494694e259c8Odd64265.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
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prohibiting visible and other discharges that are injurious to recreation and aquatic life.
The river just below Red Hill's outfall is in fact used for paddling and other recreational
uses. The Red Hill facility permit conditions must assure compliance with Class B and
Class C standards.2
• Sibelco's Effluent Disclosures: Federal regulations governing National Pollutant
Discharge Elimination System("NPDES")permits require applications to include
significant detail regarding the nature and characteristics of expected discharges. See 40
C.F.R. § 122.21(g); S. Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d
560, 563 (4th Cir. 2014). These requirements apply to state-issued permits under
approved delegated programs.3 See 40 C.F.R. § 122.21 (a)(2)(iv). Among other things,
dischargers in the existing mining industrial category"shall provide ... [e]ffluent
characteristics." 40 C.F.R. § 122.21(g)(7). As the NPDES Permit Writers' Manual
indicates, this contemplates submission of"[q]uantitative effluent data,"which varies
according to "the industrial category of the facility, the facility's discharge characteristics
and the types of pollutants expected to be present in the discharge." NPDES Permit
Writers' Manual 4.3.5 (2010).4
The NPDES permit application form utilized by Sibelco for its mineral processing
facilities also requires disclosure of"any chemicals that may be discharged" and
"potential amounts." See NPDES Permit Application—Short Form C—Minor Industrial,
item 17. Instead of providing a quantitative assessment of any chemicals in its effluent,
Sibelco cross-referenced a document about its operating status that includes a narrative
description of compounds that it"may add" during its "processes." This document does
not characterize the effluent or identify what specific chemicals may be discharged as a
result of these processes or their potential amounts. See NPDES Permit Applications for
NPDES Permits NC0000175,NC0000361,NC0084620, and NC0085839.5
We have twice requested from DEQ, in February 2019 and again in April 2019, a list of
chemicals and amounts that may be discharged from Sibelco's facilities in order to
inform our understanding of pollutants potentially being discharged into the North Toe
River. Federal regulation is clear that effluent data is not confidential information. See
40 C.F.R. § 122.7 (b). We have not received this information, and it remains unclear
2 In addition upstream portions of the North Toe River designated class C are being actively used for
swimming or primary recreation,particularly Riverside Park in Spruce Pine,where access to the river was restricted
following last year's hydrofluoric acid spill and sewage spill. Where primary recreation use is an existing use,
permitting conditions should assure protection of that use. See 15A N.C.Admin. Code 2B.00202(30)(existing use
means uses actually attained even if not included in standards).
3"Authorized states are not required to use the EPA application forms;however,any alternative form used
by an authorized state must include the federal requirements at a minimum."NPDES Permit Writers'Manual 4.3.
4 Available at https://www.epa.aov/sites/production/files/2015-09/documents/pwm chat 04.pdf.
5 Sibelco's disclosure of"quantitative data"for seven parameters under item 15 of the form,which applies
to every applicant(see 40 C.F.R. § 122.21 (g)(iii))does not satisfy the broader requirement to identify pollutants in
its discharge(see 40 C.F.R. § 122.21(g)(i),(v)(vi)).
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whether DEQ ever received it from Sibelco. In order to receive permit coverage under the
CWA for a particular pollutant, the pollutant must be disclosed to permitting authorities
during the permitting process. See S. Appalachian Mountain Stewards, 758 F.3d 560
(mining company's failure to meet its disclosure obligations rendered it ineligible for
permit shield under provision of CWA). A general disclosure of wastestreams,
operations, and processes is not sufficient to gain access to the permit shield. Id.
Without full characterization of effluent data, Sibelco also has not complied with
application requirements; furthermore, this information cannot be withheld from the
public as confidential.
On a related point, it is unclear that there is a valid basis to treat all six processing
facilities as minor dischargers, as opposed to major dischargers,based on the "a high
potential for violation of water quality standards." See, e.g., NPDES Memorandum of
Agreement Between N.C. and EPA Region 4, at 13-14 (Oct. 15, 2007). DEQ's public
notices for these permit renewals appropriately recognize the North Toe River is water
quality limited for fluoride and total suspended solids,6 and indeed, instream monitoring
data summarized in the NPDES permit fact sheets show violations of water quality
standards for turbidity and fluoride continue to occur. EPA's recognition that feldspar
processing facilities in North Carolina are among the top mining-related dischargers for
fluoride in the nation also stands in contrast to treating these dischargers as minor.7
• Downstream Monitoring: We commented previously on the monitoring and reporting
conditions in the draft permits. In addition to issues we raised previously, the
downstream monitoring point for the Altapass facility(NC0000353) should be moved
closer to the effluent discharge location. The current downstream location at the Spruce
Pine Riverside Park appears to be nearly 1.5 miles downstream, with intervening
tributaries diluting the pollution concentrations of effluent in the river. To accurately
gauge effluent impact on the river, the downstream monitoring location should be moved
closer to the actual effluent discharge location, for example, 300 feet downstream as
specified in other discharge permits.
• Monitoring FrequencX: In further support of our prior comment regarding the frequency
of monitoring for aluminum, copper, lead, nickel and zinc, it appears Altapass
(NC0000353) already monitors effluent daily for another purpose, "optimizing
production process." Letter from Charles Case to Landon Davidson(Mar. 26, 2018), on
file with DEQ. The fact that monitoring is already occurring on a daily basis at this
facility, and potentially others, further demonstrates the feasibility of monitoring for
metals at all six facilities on a more frequent basis than quarterly, which would better
6 For example,htWs:Hdeq.nc.gov/news/events/feldspar-corporation-permit-nc0000353 ("Currently fluoride
and total suspended solids are water quality limited.").
7 See EPA,Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-
021 (Sept.2011)at 9-14,9-19,available at https://www.gpa.gov/sites/production/files/2018-05/documents/2010_eg-
plan-tsd_final_sept-2011.pdf("The majority of the fluoride discharges for the Mineral Mining and Processing
Category are from phosphate mines in Florida and feldspar mines in North Carolina.").
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yield data representative of the monitored activity, since these facilities discharge
pollution on a daily basis. See 40 C.F.R. § 122.48(b). Because these permit limits have
apparently remained somewhat static since 1995, based on information DEQ provided at
the public hearing, it is even more important that DEQ requires monitoring for additional
parameters on a schedule that would actually yield a meaningful data set for review.
• Appalachian Elktoe: Data of elktoe occurrences in the North Toe River on file with
Wildlife Resources Commission confirms they are present within the portion of the North
Toe River designated as critical habitat. Appalachian elktoe are particularly susceptible
to sedimentation, and siltation from the mining industry has contributed to their decline.
See Appalachian Elktoe Determined To Be an Endangered Species, 59 Fed. Reg. 60,324,
60,326 (Nov. 23, 1994). Federally protected critical habitat is just downstream from five
of the dischargers and overlaps the Red Hill facility's discharge location. Confirmation
that elktoe occupy the critical habitat in the North Toe River further underscores the
necessity to develop a site-specific management plan as required by state law. 15A N.C.
Admin. Code 2B.0110. In the absence of measures to protect elktoe, the processing
facilities' discharges of thousands of pounds of total suspended solids on an ongoing
basis may contribute to unlawful take in a population designated essential to the survival
of the species. See Designation of Critical Habitat for the Appalachian Elktoe, 67 Fed.
Reg. 61,016, 61,027 (Sept. 27, 2002); 16 U.S.C. § 1538(a).
• Public Notice: We have requested in writing to be added to the state's notice list for the
NPDES program on multiple occasions. By state law, the Memorandum of Agreement
with EPA, and federal regulation, the state is required to provide separate notice to those
who request notification of permitting actions. 15A N.C. Admin. Code 2H.0109(a)(1)(B)
and(c) (state "shall mail such notice to any such person"who requests "to receive copies
of such notices.");NPDES MOA, at 11-12 (Oct. 15, 2007) ("State shall give public
notice in accordance with 40 C.F.R. Sections 124.10(c), (d), and(e)" at least"thirty(30)
days before the hearing"); 40 C.F.R. § 124.10 (b)(2) ("Public notice of a public hearing
shall be given at least 30 days before the hearing.") and(c)(ix) (notice "shall be given"to
persons who request to be on a mailing list).8 The state maintains a listsery distribution
list for the purpose of providing individuals "email notification of public notices and
proposed water quality permitting actions." See
https:Hlists.ncmail.net/mailman/listinfo/dwrpublicnotices. We have signed up for DEQ's
listsery and have received notice of other permitting activities recently. Public notice for
hearings must be given "30 days prior to the date of the meeting," and separate notice
must be provided to those "persons and government agencies"that received a copy of the
notice or the fact sheet, and"any person or group upon request." 15A N.C. Admin. Code
21-1.0109(b)(1).
On February 7, 2019, we requested a public hearing on these permit renewals. Despite
that specific request and prior requests to be added to the notice lists for this and other
permitting actions, we did not receive notice of the public hearing until receiving an
email from DEQ on April 18, 2019—only 14 days before the public hearing. We did not
8 Available at hl!ps://www.epa.aov/sites/production/files/2013-09/documents/nc-moa-ppdes.pdf.
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receive notice via the listsery until April 23,just nine days before the hearing. DEQ's
obligation to maintain a list for the purpose of distributing public notices is separate from
its obligation to publish public notices in local newspapers. Compare 15A N.C. Admin.
Code 2H.0109(a)(1)(A) with (a)(1)(B). Although we received untimely notice, it is
unclear whether other individuals who requested a public hearing here or who have
otherwise requested notice of permitting actions received similar courtesy, late or at all.
In addition, the legal notice we received and the legal noticed printed in newspapers
contained the incorrect address for the hearing location. We appreciate that DEQ held a
public hearing, but note these deficiencies may have limited effective public engagement.
Going forward, we expect to timely receive "email notification of public notices and
proposed water quality permitting actions"via the listsery maintained by the Division or
by mail, as we have requested, and as required by law. Please also provide direct notice
of any issuance of these particular permits.
Sincerely,
Amelia Burnette
Senior Attorney
cc: Via email only
david.hillgncdenr.gov
Julie.Grz (dncdenr.gov
landon.davidsongncdenr.goy
davis.molly(a epa.gov
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