NC0000400_Comments_20231212

Denard, Derek
From: Gray Jernigan <[e-mail]>
Sent: Tuesday, December 12, 2023 1:03 PM
To: Dowden, Doug
Cc: Rogers, Richard E; Grzyb,Julie; Montebello, Michael J; Denard, Derek
Subject: Re: [External] Re: NC0000175, NC0000353 Etc Mining Permit Discussion - Interested
Party Meeting
Attachments: 2019-05-03 SELC suppl comments North Toe Mines (1).pdf; 2019-02-19 SELC NPDES
Spruce Pine Mining Permit Comments (3) (1).pdf
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Here's a proposed agenda, please add anything else you would like to discuss:
• Status of the NC0000175, NC0000353, Etc. Mining Permit drafting process
• Need for Technology-Based Effluent Limits (TBELs)to address fluoride and total suspended solids
(TSS).
o BPJ based on draft/proposed ELGs
o Supporting documents:
• 1976 document that originally identified technologies that could be used at these
types of mines to reduce fluoride discharges: Development Document for Interim
Final Effluent Limitations Guidelines &Standards for the Mineral Mining&
Processing Category-June 1976 (eepa.gov)
• 2010 technical support document discussing fluoride treatment using two-stage
chemical precipitation technology(relevant pages 163-168): Technical Support
Document for the 2010 Effluent Guidelines Program Plan (epa.gov .
• Need for individual NPDES stormwater permits for these facilities (rather than continue coverage
under the NCG02 General Permit for Mining Activities)
I've also attached our most recent comments on the draft NPDES permits as well as a supplemental
Letter that we submitted a few months later explaining our concerns and thoughts on improving these
permits in more detail.
Thanks,
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.n3ypronouns.org/
MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.org
i

-�4
mountaintrue
4TYA§
MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we celebrate
40 years of championing resilient forests, clean waters and healthy communities in the Southern Blue
Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.orq/join
On Tue, Dec 12, 2023 at 12:40 PM Dowden, Doug<doug.dowden(a)deq.nc.gov>wrote:
Good Afternoon Mr.Jernigan,
Richard's office will set the date and time with you.
Can you provide an agenda for the meeting? This way we can come prepared to answer or discuss questions /
concerns raised.
Sincerely,
Douglas Dowden
Environmental Program Supervisor II
Division of Water Resources / Permitting
Department of Environmental Quality
Office: Archdale Building, 9t" Floor (925Q)
512 North Salisbury Street, Raleigh, NC 27604
Mailing Address: 1617 Mail Service Center, Raleigh, NC 27699-1617
Office: 919-707-3605
doug.dowden(a)-deg.nc.gov (formerly doug.dowdenkncdenr.gov)
CONFIDENTIALITY NOTICE: This electronic mail transmission may contain information that is
confidential, privileged, proprietary, or otherwise legally exempt from disclosure. If you are not the
intended recipient, you are hereby notified that you are not authorized to read, print, retain, copy or
disseminate this message, any part of it, or any attachment. If you have received this message in
error, please delete this message and any attachments from your system without reading the content
and notify the sender immediately of the inadvertent transmission. There is no intent on the part of
the sender to waive any privilege, that may attach to this communication. Thank you for your
cooperation.
2

Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Based on the current guidance to minimize the spread of COVID-19, the Department of
Environmental Quality has adjusted operations to protect the health and safety of the staff and
public. Many employees are working remotely or are on staggered shifts. To accommodate these
staffing changes, all DEQ office locations are limiting public access to appointments only. Please
check with the appropriate staff before visiting our offices, as we may be able to handle your
requests by phone or email. We appreciate your patience as we continue to serve the public during
this challenging time.
From: Gray Jernigan <[e-mail]>
Sent: Monday, December 11, 2023 2:02 PM
To: Dowden, Doug<[e-mail]>
Cc: Rogers, Richard E<[e-mail]>; Grzyb,Julie<[e-mail]>; Montebello, Michael J
<[e-mail]>; Denard, Derek<[e-mail]>
Subject: Re: [External] Re: NC0000175, NC0000353 Etc Mining Permit Discussion - Interested Party Meeting
CAUTION: External email. Do not click links or open attachments unless verified. Report suspicious emails with the Report Message
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Here's my availability:
16th before noon
17th before 1
18th anytime
23rd between 10:30 and 3
24th after 11
25th between 10 and 2
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.mypronouns.org//
MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.org
14
mountaintrue.
4C13-
3

MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we celebrate
40 years of championing resilient forests, clean waters and healthy communities in the Southern
Blue Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.orq/join
On Sat, Dec 9, 2023 at 7:36 AM Dowden, Doug<doug.dowden(a)deq.nc.gov>wrote:
Good Morning Mr.Jernigan,
This meeting will have to be after the first of the new year. Schedules are tight this time of year. Let me know
your availability, say the week of the 15 h and 22°a and I will coordinate on our end.
Thank you,
Douglas Dowden
Environmental Program Supervisor II
Division of Water Resources / Permitting
Department of Environmental Quality
Office: Archdale Building, 9t" Floor (925Q)
512 North Salisbury Street, Raleigh, NC 27604
Mailing Address: 1617 Mail Service Center, Raleigh, NC 27699-1617
Office: 919-707-3605
doug.dowden(c-deq.nc.gov (formerly doug.dowdenkricdenr.gov)
CONFIDENTIALITY NOTICE: This electronic mail transmission may contain information that is
confidential, privileged, proprietary, or otherwise legally exempt from disclosure. If you are not the
intended recipient, you are hereby notified that you are not authorized to read, print, retain, copy or
disseminate this message, any part of it, or any attachment. If you have received this message in
error, please delete this message and any attachments from your system without reading the
content and notify the sender immediately of the inadvertent transmission. There is no intent on the
part of the sender to waive any privilege, that may attach to this communication. Thank you for your
cooperation.
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Based on the current guidance to minimize the spread of COVID-19, the Department of
Environmental Quality has adjusted operations to protect the health and safety of the staff and
public. Many employees are working remotely or are on staggered shifts. To accommodate these
staffing changes, all DEQ office locations are limiting public access to appointments only. Please
check with the appropriate staff before visiting our offices, as we may be able to handle your
4

requests by phone or email. We appreciate your patience as we continue to serve the public during
this challenging time.
From: Gray Jernigan <[e-mail]>
Sent:Thursday, December 7, 2023 4:19 PM
To: Dowden, Doug<[e-mail]>
Subject: Re: [External] Re: NC0000175, NC0000353 Etc Mining Permit Discussion - Interested Party Meeting
CAUTION: External email. Do not click links or open attachments unless verified. Report suspicious emails with the Report
Message button located on your Outlook menu bar on the Home tab.
Hey Doug,just checking back in with you on this. Let me know if we can set up a meeting. Thanks!
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.mypronouns.org/
MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.or
mou ntai ntrue.
4 991efin
MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we celebrate
40 years of championing resilient forests, clean waters and healthy communities in the Southern
Blue Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.orghoin
On Mon, Oct 23, 2023 at 9:28 AM Gray Jernigan <gray(@mountaintrue.org>wrote:
Sounds good, thank you!
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.mypronouns.org/
5

MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.org
mountaintrue
4C13A§
MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we
celebrate 40 years of championing resilient forests, clean waters and healthy communities in the
Southern Blue Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.org/join
On Mon, Oct 23, 2023 at 9:02 AM Dowden, Doug<doug.dowdenPdeq.nc.gov>wrote:
Good Morning Mr. Jernigan,
I have reached out to our senior management team and waiting for their response. Hoping to get
back to you within a week.
Honestly, I had no idea what the EMC decided.
Sincerely,
Douglas Dowden
Environmental Program Supervisor 11
Division of Water Resources / Permitting
Department of Environmental Quality
Office: Archdale Building, 9t" Floor (925Q)
512 North Salisbury Street, Raleigh, NC 27604
Mailing Address: 1617 Mail Service Center, Raleigh, NC 27699-1617
Office: 919-707-3605
douq.dowden(p�deq.nc.goy (formerly doug.dowdenkncdenr.gov)
6

CONFIDENTIALITY NOTICE: This electronic mail transmission may contain information that is
confidential, privileged, proprietary, or otherwise legally exempt from disclosure. If you are not the
intended recipient, you are hereby notified that you are not authorized to read, print, retain, copy
or disseminate this message, any part of it, or any attachment. If you have received this message
in error, please delete this message and any attachments from your system without reading the
content and notify the sender immediately of the inadvertent transmission. There is no intent on
the part of the sender to waive any privilege, that may attach to this communication. Thank you for
your cooperation.
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Based on the current guidance to minimize the spread of COVID-19, the Department of
Environmental Quality has adjusted operations to protect the health and safety of the staff and
public. Many employees are working remotely or are on staggered shifts. To accommodate these
staffing changes, all DEQ office locations are limiting public access to appointments only. Please
check with the appropriate staff before visiting our offices, as we may be able to handle your
requests by phone or email. We appreciate your patience as we continue to serve the public
during this challenging time.
From: Gray Jernigan <[e-mail]>
Sent: Friday, October 20, 2023 12:56 PM
To: Dowden, Doug<[e-mail]>
Subject: Re: [External] Re: NC0000175, NC0000353 Etc Mining Permit Discussion - Interested Party Meeting
CAUTION: External email. Do not click links or open attachments unless verified. Report suspicious emails with the Report
Message button located on your Outlook menu bar on the Home tab.
Hey Doug,you may not have heard, but the petition was denied by the EMC.With that out of the way,
let me know if you would like to schedule a meeting on this.
Have a good weekend,
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.mypronouns.org/
MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.org
7

-�4
mountaintrue
4T39L4
MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we
celebrate 40 years of championing resilient forests, clean waters and healthy communities in the
Southern Blue Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.org/join
On Thu, Sep 7, 2023 at 3:23 PM Dowden, Doug<doug.dowdenPdeq.nc.gov>wrote:
Good Afternoon Sir,
I
I will keep you in the loop as to when we can proceed with a meeting. Appreciate your insight
and interest in these permits.
Have a good evening.
If you should have any questions and/or concerns, please feel free to reach out to me at your
earliest convenience.
Sincerely,
Douglas Dowden
Environmental Program Supervisor 11
Division of Water Resources / Permitting
Department of Environmental Quality
Office: Archdale Building, 9th Floor (925Q)
512 North Salisbury Street, Raleigh, NC 27604
Mailing Address: 1617 Mail Service Center, Raleigh, NC 27699-1617
Office: 919-707-3605
doug.dowden(a)_deq.nc.goy (formerly doug.dowdenkncdenr. oovv)
CONFIDENTIALITY NOTICE: This electronic mail transmission may contain information that is
confidential, privileged, proprietary, or otherwise legally exempt from disclosure. If you are not
the intended recipient, you are hereby notified that you are not authorized to read, print, retain,
copy or disseminate this message, any part of it, or any attachment. If you have received this
message in error, please delete this message and any attachments from your system without
reading the content and notify the sender immediately of the inadvertent transmission. There is
8

no intent on the part of the sender to waive any privilege, that may attach to this communication.
Thank you for your cooperation.
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Based on the current guidance to minimize the spread of COVID-19, the Department of
Environmental Quality has adjusted operations to protect the health and safety of the staff and
public. Many employees are working remotely or are on staggered shifts. To accommodate these
staffing changes, all DEQ office locations are limiting public access to appointments only. Please
check with the appropriate staff before visiting our offices, as we may be able to handle your
requests by phone or email. We appreciate your patience as we continue to serve the public
during this challenging time.
From: Gray Jernigan <[e-mail]>
Sent:Thursday,September 7, 2023 2:30 PM
To: Dowden, Doug<[e-mail]>
Subject: Re: [External] Re: NC0000175, NC0000353 Etc Mining Permit Discussion - Interested Party Meeting
CAUTION: External email. Do not click links or open attachments unless verified. Report suspicious emails with the Report
Message button located on your Outlook menu bar on the Home tab.
Understood, please let me know when you would like to reschedule.
Our concerns and thoughts on improving these permits are explained in detail in our most recent
comments on the draft NPDES permits as well as a supplemental letter that we submitted a few
months later(both attached).While all of the issues raised in comments are important to us,we are
particularly interested in the need for Technology-Based Effluent Limits (TBELs)to address
fluoride and total suspended solids (TSS).
In this instance, EPA developed proposed Effluent Limitation Guidelines (ELGs)for the feldspar
mineral processing subcategory decades ago to address TSS and fluoride, but those limits were
never finalized and promulgated. However, DEQ can and should use these guidelines to inform the
"best professional judgement" of the permit writer to develop TBELs in these permits.
The 1976 document that originally identified technologies that could be used at these types of mines
to reduce fluoride discharges can be found here: Development Document for Interim Final Effluent
Limitations Guidelines &Standards for the Mineral Mining&Processing Category-June 1976
e a. ov . And the 2010 technical support document discusses fluoride treatment using two-stage
chemical
precipitation technology can be found here (relevant pages 163-168): Technical Support Document
for the 2010 Effluent Guidelines Program Plan (epa.gov�.
9

i
On a related note, we would strongly encourage the agency to impose individual NPDES stormwater
permits for these facilities, rather than continue coverage under the NCG02 General Permit for
Mining Activities. Many of the issues we see at these facilities are related to stormwater
management, and better oversight provided by individual permits would help address the situation.
Thanks so much for your work on this.
I
Sincerely,
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.mypronouns.org/
MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.org
mou ntai ntrue
Apqw§
MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we
celebrate 40 years of championing resilient forests, clean waters and healthy communities in the
Southern Blue Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.orq/join
I
On Tue, Sep 5, 2023 at 2:08 PM Dowden, Doug<doug.dowdenCa)deq.nc.gov>wrote:
Dear Mr. Jernigan,
We appreciate your questions and concerns posed to Division of Water Resources pertaining to
various active mining permits (NC0000400, NC0000175, NC0085839, NC0084620,
NC0000353, NC0000361). Since a petition to the Environmental Management Commission
(EMC) has been submitted and will need to be reviewed, at this time we will be cancelling our
meeting (9/7/23 at 11:00 am). We can discuss rescheduling this meeting at a later date.
Sincerely,
10

Douglas Dowden
Environmental Program Supervisor II
Division of Water Resources / Permitting
Department of Environmental Quality
Office: Archdale Building, 9th Floor (925Q)
512 North Salisbury Street, Raleigh, NC 27604
Mailing Address: 1617 Mail Service Center, Raleigh, NC 27699-1617
Office: 919-707-3605
doug.dowden(a)-deg.nc.gov (formerly doug.dowdenkncdenr.gov)
CONFIDENTIALITY NOTICE: This electronic mail transmission may contain information that is
confidential, privileged, proprietary, or otherwise legally exempt from disclosure. If you are not
the intended recipient, you are hereby notified that you are not authorized to read, print, retain,
copy or disseminate this message, any part of it, or any attachment. If you have received this
message in error, please delete this message and any attachments from your system without
reading the content and notify the sender immediately of the inadvertent transmission. There is
no intent on the part of the sender to waive any privilege, that may attach to this communication.
Thank you for your cooperation.
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Based on the current guidance to minimize the spread of COVID-19, the Department of
Environmental Quality has adjusted operations to protect the health and safety of the staff and
public. Many employees are working remotely or are on staggered shifts. To accommodate
these staffing changes, all DEQ office locations are limiting public access to appointments only.
Please check with the appropriate staff before visiting our offices, as we may be able to handle
your requests by phone or email. We appreciate your patience as we continue to serve the
public during this challenging time.
From: Gray Jernigan <[e-mail]>
Sent:Thursday,August 24, 2023 10:15 AM
To: Dowden, Doug<[e-mail]>
Cc: Hartwell Carson <[e-mail]>; Montebello, Michael J <Michael.Monte [e-mail]>
Subject: Re: [External] Re: NC0000175, NC0000353 Etc Mining Permit Discussion - Interested Party Meeting
CAUTION: External email. Do not click links or open attachments unless verified. Report suspicious emails with the Report
Message button located on your Outlook menu bar on the Home tab.
Thanks, looking forward to it!
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.mypronouns.org/
11

MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.org
mountaintrue
4T39k1-
MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we
celebrate 40 years of championing resilient forests, clean waters and healthy communities in the
Southern Blue Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.orq/loin
On Thu, Aug 24, 2023 at 6:50 AM Dowden, Doug<doug.dowden(@deq.nc.gov>wrote:
Good Morning Mr. Jernigan,
sent you and Mr. Hartwell a meeting appointment / request this am. Hopefully, this date and
time works for all.
We look forward to meeting with and discussing your interests in the various mining permits.
If you should have any questions and/or concerns, please feel free to reach out to me at your
earliest convenience.
Sincerely,
Douglas Dowden
Environmental Program Supervisor 11
Division of Water Resources / Permitting
Department of Environmental Quality
Office: Archdale Building, 9t" Floor (925Q)
512 North Salisbury Street, Raleigh, NC 27604
Mailing Address: 1617 Mail Service Center, Raleigh, NC 27699-1617
Office: 919-707-3605
douq.dowden(p�deq.nc.goy (formerly doug.dowdengnedenr.gov)
12

CONFIDENTIALITY NOTICE: This electronic mail transmission may contain information that is
confidential, privileged, proprietary, or otherwise legally exempt from disclosure. If you are not
the intended recipient, you are hereby notified that you are not authorized to read, print, retain,
copy or disseminate this message, any part of it, or any attachment. If you have received this
message in error, please delete this message and any attachments from your system without
reading the content and notify the sender immediately of the inadvertent transmission. There is
no intent on the part of the sender to waive any privilege, that may attach to this
communication. Thank you for your cooperation.
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Based on the current guidance to minimize the spread of COVID-19, the Department of
Environmental Quality has adjusted operations to protect the health and safety of the staff and
public. Many employees are working remotely or are on staggered shifts. To accommodate
these staffing changes, all DEQ office locations are limiting public access to appointments only.
Please check with the appropriate staff before visiting our offices, as we may be able to handle
your requests by phone or email. We appreciate your patience as we continue to serve the
public during this challenging time.
From: Gray Jernigan <[e-mail]>
Sent: Wednesday, August 23, 2023 3:52 PM
To: Dowden, Doug<[e-mail]>
Cc: Hartwell Carson <[e-mail]>
Subject: [External] Re: NC0000175, NC0000353 Etc Mining Permit Discussion - Interested Party Meeting
CAUTION: External email. Do not click links or open attachments unless verified. Report suspicious emails with the Report
Message button located on your Outlook menu bar on the Home tab.
Any of those times work for me. Also looping in my colleague Hartwell Carson for his availability.
Gray Jernigan, Deputy Director&General Counsel
He/Him/His I Why pronouns matter: https://www.mypronouns.org/
MountainTrue is committed to equity in our workplace and in our community:
https://mountaintrue.org/equity
MountainTrue
29 N. Market Street I Suite 610 1 Asheville, NC 28801
P: 828-423-0578
mountaintrue.org
13

mou ntai ntrue.
0�PLM
MountainTrue was founded as the Western North Carolina Alliance in 1982. This year we
celebrate 40 years of championing resilient forests, clean waters and healthy communities in
the Southern Blue Ridge Mountains.
BUILD A BETTER TOMORROW.
BE MOUNTAINTRUE.
mountaintrue.org/join
On Wed, Aug 23, 2023 at 6:13 AM Dowden, Doug<doug.dowdenPdeq.nc.gov>wrote:
Good Morning Sir,
I have been informed that you would like to meet with NCDEQ WQPS personnel to discuss
various mining permits that are currently in review.
Looking at everyone's calendars at the NCDEQ the following dates and times are available.
Please let me know which dates and times work best for you and I will set up a zoom meeting
asap.
Available dates and times include the following:
• Tuesday September 5th: 12 — 3:00 pm
• Wednesday September 61h: 10:30- 1 pm
• Thursday September 71h: 10 - 1:00 pm
• Friday September 8th: 10—2:00 pm
Again, please let me know which dates and times work best for you and I will schedule the
meeting accordingly.
I
If you should have any questions and/or concerns, please feel free to reach out to me at your
earliest convenience.
Sincerely,
Douglas Dowden
Environmental Program Supervisor II
Division of Water Resources / Permitting
Department of Environmental Quality
Office: Archdale Building, 9th Floor (925Q)
512 North Salisbury Street, Raleigh, NC 27604
14

Mailing Address: 1617 Mail Service Center, Raleigh, NC 27699-1617
Office: 919-707-3605
douq.dowden(@-deq.nc.goy (formerly doug.dowdenkncdenr.gov)
CONFIDENTIALITY NOTICE: This electronic mail transmission may contain information that is
confidential, privileged, proprietary, or otherwise legally exempt from disclosure. If you are not
the intended recipient, you are hereby notified that you are not authorized to read, print, retain,
copy or disseminate this message, any part of it, or any attachment. If you have received this
message in error, please delete this message and any attachments from your system without
reading the content and notify the sender immediately of the inadvertent transmission. There
is no intent on the part of the sender to waive any privilege, that may attach to this
communication. Thank you for your cooperation.
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Based on the current guidance to minimize the spread of COVID-19, the Department of
Environmental Quality has adjusted operations to protect the health and safety of the staff and
public. Many employees are working remotely or are on staggered shifts. To accommodate
these staffing changes, all DEQ office locations are limiting public access to appointments
only. Please check with the appropriate staff before visiting our offices, as we may be able to
handle your requests by phone or email. We appreciate your patience as we continue to serve
the public during this challenging time.
Email correspondence to and from this address may be subject to the North Carolina Public Records Law and may be disclosed to third parties by an
authorized state official.
15

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 48 PATTON AVENUE.SUITE 304 Facsimile 828-258-2024
ASHEVILLE.NC 28801-3321
February 19, 2019
David Hill
NCDEQ-DWR
Water Quality Permitting Section
1617 Mail Service Center
Raleigh,NC 27699-1617
[e-mail]
Re: Permit Renewals for Pollution Discharges to the North Toe River
Sibelco NPDES Permits: NC0000175,NC0000361,NCO084620 and NCO085839
Quartz Corps NPDES Permits: NC0000400,NC0000353
On behalf of the French Broad Riverkeeper, MountainTrue, Defenders of Wildlife, and
the Southern Environmental Law Center, we submit the following 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,North Carolina. With these
comments we supplement our February 7, 2019, request for public hearing.
The French Broad Riverkeeper works to monitor and protect the quality of our region's
waterways, including the North Toe River, and fights for safe and healthy waterways for all
citizens in the French Broad River watershed by bringing together local residents and
communities to identify pollution sources, enforce environmental laws, and educate and
empower the public. The French Broad Riverkeeper program is part of MountainTrue.
MountainTrue is a nonprofit organization whose mission includes protecting streams and rivers
from pollution in Western North Carolina. MountainTrue's members use the North Toe River
for recreation.
Defenders of Wildlife is dedicated to the protection of all native animals and plants in
their natural communities. With more than 1.2 million members and activists, Defenders of
Wildlife focuses on wildlife and habitat conservation and the safeguarding of biodiversity.
The North Toe River provides recreation opportunities for paddlers, anglers, and
swimmers, boosts the local tourism economy, is home to trout, and provides critical habitat for
the federally protected Appalachian elktoe. The recreation economy, trout, and other aquatic
species all depend on clear mountain rivers to thrive. Because of wastewater discharges from the
feldspar mines and processing facilities concentrated along the North Toe River, the river
continues to suffer from the effects of pollution. Multiple processing facilities that seek permit
renewals have been issued notices of violation in recent years. The ongoing pollution of the
North Toe is not without consequence. The river has been listed as impaired for turbidity for
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
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over a decade. Water quality sampling conducted by the French Broad Riverkeeper over the last
several years confirms the turbidity problems are ongoing and acute. See North Toe River Map,
Statement of H. Carson and Sampling Summary, Att. A-C. Turbidity is not the only problem.
EPA has recognized the feldspar processing facilities are among top dischargers for fluoride and
noted permit violations in its review of effluent data.' Instream data from the last permit cycle
show exceedances of the fluoride standard are occurring in the North Toe River. The river is
also suffering impairment of recreation, aquatic life, and aesthetic narrative water quality
standards. See Statements of H. Carson and S. Evans and photographs at Att. B-E. Confirming
this,just last summer, the North Toe closed to the public and swimmers had to exit the water
after a hydrofluoric acid2 spill from the Altapass facility caused a fish kill.3
Rather than abate these problems, the proposed draft permits will perpetuate water
quality problems in the river. Although there are minor improvements, the Clean Water Act
("CWA") and state laws implementing delegated CWA authority require far more. Because
these draft permits do not ensure compliance with applicable water quality standards and will
contribute to violations, they cannot issue in compliance with the CWA, relevant federal
regulations, or state law.
The draft permits must be withdrawn, substantially revised, and reissued for public
comment. Specifically, the following changes, as well as curing other deficiencies discussed
below, are required:
• Total suspended solids and flouride numeric limits must be tightened through a
proper application of technology-based and water quality-based limits.
• Sibelco's Red Hill and Crystal facilities report discharging chloride at 1 Ox to 25x
the water quality standard, and the permits provide no limit. Numeric limits must
be added, particularly since Sibelco indicates compliance with pH standards may
require additional use of chemicals.
• Limits must protect narrative standards for recreation, aquatic life, and aesthetic
uses of the river.
• The processing facilities' handling of wastewater treatment sludge must comply
with permit terms and state law.
• DWR must consider impacts to endangered Appalachian elktoe.
' See EPA,Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-
021 (Sept.2011)at 9-14,9-19,https://www.epa.gov/sites/production/files/2018-05/documents/2010_eg-plan-
tsd final_sept-2011.pdf.
2 Hydrogen fluoride dissolves in water to form hydrofluoric acid. ATSDR Toxic Substances Portal-
Fluorides,Hydrogen Fluoride,and Fluorine,https://www.atsdr.cdc.gov/toxfaqs/tfasp?id=211&tid=38.
3 See https:Hwlos.com/news/local/dozens-of-fish-in-north-toe-river-killed-after-quarry-leak-state-officials-
sU;https://www.citizen-times.com/story/news/local/2018/07/19/spruce-pines-north-toe-river-suffers-acid-leak-
sewagespill/800103002/;Assessment of Civil Penalty for Violations of the Reporting Requirements(Case No.:LM-
2018-0051),NPDES Permit No. 0000353 (Feb.4,2019),on file with DEQ.
2

A. DEQ Must Impose Tighter Effluent Limits
DEQ proposes to renew the following six National Pollutant Discharge Elimination
System ("NPDES")permits for mineral processing facilities to discharge polluted wastewater
into the North Toe River. From upstream to downstream these facilities are: Sibelco's
Schoolhouse facility(NC0000361), Quartz Corps' Altapass facility(NC0000353), Sibelco's
Crystal facility(NC0084620), Quartz Corps' K-T Feldspar facility(NC0000400), Sibelco's
North America facility(NC0000175), and Sibelco's Red Hill facility(NC0085839). Submitted
with these comments is a map of all of the facilities concentrated along the North Toe. Att. A.
On any given day, the draft permits together would allow a discharge of over 10,000
pounds of total suspended solids ("TSS")—or over five tons—into the North Toe River. The
North Toe River has been listed as impaired for turbidity for over a decade. Water quality data
collected by the French Broad Riverkeeper confirms the impairment is ongoing. The attached
summary of turbidity sampling results includes multiple locations in the North Toe River,
between upstream of Grassy Creek and Penland Bridge from 2015-2018. Att. C. Instream
exceedances measured in the North Toe River ranged from 23.4 NTU to 955 NTU—including
two samples that were too high to register on a turbidimeter. Many exceedances recorded by the
French Broad Riverkeeper far exceed the State's own ambient monitoring data. The draft
permits propose to allow dumping up to five tons daily of TSS, or the equivalent weight of
several dump truck loads monthly,4 into a river already impaired for turbidity. Not surprisingly,
this will not reasonably ensure compliance with water quality standards.
In similar fashion, fluoride discharges are allowed up to a combined maximum of nearly
2,000 pounds, effectively maxing out the river's assimilative capacity and causing localized
exceedances. See DWR, Appendix A: Fluoride Wasteload,North Toe River Mining
Dischargers. The EPA in 2010 found the Altapass facility alone was one of the leading
dischargers of fluoride in the mineral processing industry nationwide.
Chloride discharges are unlimited in the permits. Two facilities, Sibelco's Crystal and
Red Hill facilities, discharged effluent concentrations of up to 1 Ox to 25x the water quality
standards action level of 230 mg/L. Yet, there are no limits.
In all three instances DWR neglects its mandate to impose both technology-based limits
and limits sufficiently stringent to protect water quality. The result is lax or non-existent limits.
NPDES permits control pollution by setting limits based on the technology available to treat
pollutants ("technology-based effluent limits") and any additional limits necessary to protect
water quality("water quality-based effluent limits"). 33 U.S.C. §§ 131 l(b), 1314(b); 40 C.F.R. §
122.44(a)(1), (d). DWR may issue an NPDES permit only if the permit assures compliance with
all technology-based and water quality-based effluent limits. 33 U.S.C. § 1342(a)(1)(A); 40
C.F.R. § 122.43(a). Technology-based limits set the minimum level of control required in every
4 Monthly average limits(the mean of all daily discharges)combined across six facilities(5,128 pounds)
could allow for discharges totaling 153,840 pounds cumulated over the course of a 30-day month,or over 76 tons.
Assuming a dump truck with a 10-ton capacity by weight,this would be over seven dump truck loads.
3

NPDES permit. 40 C.F.R. § 125.3(a). A discharger must implement technology-based
standards, even if doing so goes beyond the level necessary to meet water quality standards.
NPDES Permit Writers' Manual at 5-1 (2010).5 And, conversely, if technology-based standards
are insufficient to meet water quality standards, then dischargers must do whatever is necessary
to satisfy the water quality standards. Id.
I. Technology-Based Effluent Limitations
Every NPDES permit"shall" contain technology-based effluent limits ("TBELs"), which
set"the minimum level of control that must be imposed in a permit"under the NPDES program.
40 C.F.R. § 125.3(a) (emphasis added). These technology-based limits are set without regard to
and separate from water quality-based effluent limitations ("WQBELs"), discussed below.
NPDES Permit Writers' Manual at 5-1.
Technology-based permit limits are derived from one of two sources: (1) national effluent
limitation guidelines ("ELGs") issued by EPA for various industries, 33 U.S.C. § 1314(b), or(2)
case-by-case determinations using the "best professional judgment" of permit writers, when EPA
has not issued an ELG for an industry. See 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3(c)(2).
In addition to CWA regulations,North Carolina rules also require technology-based limits, and
in the absence of a promulgated ELG, direct staff to calculate a limit using EPA development
documents and other available information. See 15A N.C. Admin. Code 02B .0406 (e).
The latter applies here: although EPA developed proposed ELGs for the feldspar mineral
processing subcategory decades ago—for TSS and fluoride—those limits were not promulgated.
See, e.g., EPA Final Development Document for Effluent Guidelines and Standards for the
Mineral Mining and Processing Industry, Point Source Category(July 1979); 40 Fed. Reg.
48,652,Notice of Interim Final Rulemaking (reserving subpart Al for the feldspar industry) (Oct.
16, 1975); 40 C.F.R. § 436, subpart Al Feldspar Subcategory [reserved]. As a result, TBEL
limits here derive from the"best professional judgment" of the permit writer.
Here, DWR for the most part applied no TBELs. Neither federal nor state law allows
room for this option. Altapass is the clearest example. The TBEL analysis consists only of this
statement: "This facility is not subject to any Effluent Limitation Guidelines." NPDES Permit
0000353 Fact Sheet at 6. Even if an ELG has not been promulgated, all of the mining processing
facilities are subject to TBELs. For the remaining facilities, the fact sheets refer to a 1975 era
proposed ELG for TSS only, and that is apparently the end of technology-based consideration.
DWR must, at a minimum, go through proper steps to develop TBELs for fluoride,
chloride, and TSS. With non-conventional pollutants, like fluoride and chloride, TBELs are
based on"application of the best available technology economically achievable." 33 U.S.C. §
131 l(b)(2)(C), (F). For a conventional pollutant like TSS, limits are based upon best practicable
control technology and best conventional pollutant control technology. 40 C.F.R. § 125.3 (a)(2)
5 Available at hgp:Hwater.epa.gov/scitech/swauidance/standards/handbook/index.cf n.
4

(assigning categories) and(d) (describing relevant factors for each category); 15A N.C. Admin.
Code 213.0403 (4), (5), (7), (12).
• Flouride: DWR discusses fluoride limits only in relation to water quality-based
limits. However, before determining more stringent limitations to achieve water
quality standards, DWR must first impose TBELs. To start with, DWR can look
at the same `70s era documents it cites for TSS. From 1975-1979, EPA prepared
draft TBELs to address fluoride discharges in the feldspar processing industry.
Even though the limits were not promulgated, that does not end the inquiry. In
2010, EPA reviewed the mineral processing fluoride discharges. It noted: "The
1976 data showed that single-stage chemical precipitation could achieve effluent
fluoride concentrations of less than 10 mg/L through segregation and separate
treatment of fluoride-containing streams (U.S. EPA, 1976)." EPA 2010, 9.5.1
Wastewater Sources of Fluoride.6 Furthermore, "EPA determined that the top
fluoride discharging facilities have two-stage chemical precipitation with lime
treatment systems. This process is similar to that at phosphatic fertilizer
manufacturing facilities, which achieve fluoride concentrations of 15 mg/L or less
(U.S. EPA, 1974). Current technologies are achieving fluoride concentrations at
least as effective, sometimes achieving 2 mg/L effluent fluoride. The chemical
precipitation has improved by using calcium chloride (CaC12)rather than lime,
while solids separation has improved by using polymers and membrane filters
(WC&E, 2006; Ionics, Unknown; GCIP, 2002)." EPA 2010, 9.5.3 Fluoride
Wastewater Treatment. DWR must determine whether each processing facility
on the North Toe is employing best available technology to achieve fluoride
reductions. Effluent data provided by Quartz Corps with its applications suggests
no; its wastewater discharge fluoride concentration from NC0000400 is 54.1
mg/L—far higher than what EPA's technical documentation showed was
achievable. (Sibelco withheld this information from the applications DWR posted
to laserfiche, and we have requested it from DWR.) DWR must assess current
technologies available and impose TBELs for fluoride in all of the permits.
EPA's recent review suggests these can be expressed as mg/L limits in addition to
mass,particularly since the relevant water quality standard is expressed as a
concentration. See 40 C.F.R. § 122.45 (f)(1)(ii) and(f)(2).
• Chloride: EPA recognized in 2010 that chemical precipitation at feldspar
processing facilities has improved using calcium chloride. Chloride is among the
pollutants discharged by the mineral processing facilities. The two newest
facilities discharging into the North Toe River indeed appear to discharge high
concentrations of chlorides. North Carolina's action level for chloride is 230
mg/L. 15A N.C. Admin. Code 2B .0211(22)(d). Sibelco's Red Hill and Crystal
6 Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-021 (Sept.
2011)at 9-14,available at hlWs://www.gpa.gov/sites/production/files/2018-05/documents/2010_ea-nlan-
tsd_final_sent-2011.pd£
5

facilities, according to the fact sheets, have discharged daily maximums 10-to 25-
times over the water quality standard, reaching 2,450 and 5,198 mg/L. The draft
permits only require monitoring for chlorides. Chloride discharges are unlimited.
Again, this is error.
• TSS: Unlike fluoride and chloride, DWR does cite a limit for TSS derived from a
draft ELG limit from 1975, expressed in lb/1000 lbs. But that's the end of the
inquiry. As with fluoride, DWR must conduct an evaluation of technology
improvements in the last forty years, to assure TSS limits reflect best practicable
control technology. Even the slightly more current 1979 version of the
development document(DWR relies on an earlier draft), indicates technologies
available then were achieving TSS discharge concentrations lower than those
being discharged presently into the North Toe. For example, one Quartz Corps
processing facility reports long-term average concentrations of TSS at 150 mg/L
(Form 2C,NPDES Permit 0000400). Sibelco's Form 2C did not publicly disclose
pollutant concentrations for TSS, but the effluent data in the fact sheet notes
turbidity as high as 89 NTU(Fact Sheet NCO086420 at 3). EPA's 1979 review
determined TSS concentrations in wet feldspar processing were being then
achieved as low as 21-45 mg/L. DWR must assess current practicable control
technologies, now available, and develop relevant TSS limits.
More perplexing still, the proposed permit limits also appear to be much higher
than the actual performance of the facilities. With historical performance data in-
hand for TSS, DWR must reduce the limits to reflect actual technology being
implemented,before turning to assessing best conventional and practicable
control technologies.
2. DEQ Must Impose WQBELS That Meet Water Quality Standards
In addition to applying technology-based effluent limits, every NPDES permit must also
include "any more stringent limitation, including those necessary to meet water quality
standards" established under state or federal law. 33 U.S.C. § 131 l(b)(1)(C). This includes
controlling "all pollutants"that"have the reasonable potential to . . . contribute to an excursion
above any State water quality standard," and standard includes "State narrative criteria for water
quality." 40 CFR § 122.44(d)(1)(i) (emphasis added).
North Carolina water quality rules also require water quality-based effluent limitations
and, like the federal requirement, assume applicable technology-based reductions are in place
first. Under the North Carolina framework, in places where minimum treatment technologies are
not stringent enough to meet water quality standards, called"water quality limited segments,"
DWR develops additional limitations to meet those standards. See 15A N.C. Admin. Code
0213.0404. The definition of"water quality limited segment"refers to a segment where "water
quality does not meet applicable water quality standards or is not expected to meet them even
after the application of minimum treatment requirements." 15A N.C. Admin. Code 213.0403
(13). Minimum treatment requirements, in turn, refer to categories of technologies required to
reduce pollution. 15A N.C. Admin. Code 213.0403 (12), (13). In other words, water quality-
6

based limits are imposed after minimum treatment requirements derived from technology fail to
achieve water quality standards.
DWR's public notices here characterize the North Toe as "water quality limited" for
fluoride and TSS. While it is true that water quality does not meet those applicable standards,
the assumption that minimum treatment requirements have been imposed for TSS and fluoride is
not correct because, as discussed above, DWR skipped over evaluating minimum treatments
required to reduce these pollutants. Only when DWR corrects that analysis can it then determine
the degree of more stringent effluent limitations that will be necessary to reduce TSS and
fluoride. When it does so, it should correct the deficiencies below.
• TSS: The fact sheets acknowledge the North Toe River is "impaired for
turbidity." Both listed segments of the North Toe River are downstream of
industrial discharges of TSS from quartz mining. In the context of permit
renewals for these facilities, the next relevant step would be to develop more
stringent limitations for TSS—a known cause of turbidity that has the "reasonable
potential to . . . contribute to an excursion" of the turbidity standard. 40 C.F.R. §
122.44(d)(1)(i). Rather than engage in a WQBEL exercise, DWR merely notes
"TSS is frozen at current loading" on account of the impairment. See, e.g., Fact
Sheet NPDES Permit 0000353 (carrying forward a daily maximum of 3,137
pounds of TSS into the North Toe River, while reporting instream data showing
turbidity excursions). For water quality limited segments, DWR's task is to
develop more stringent limitations necessary to meet those standards, not to freeze
existing permit limits, which in effect perpetuates the impairment.
• Fluoride: For fluoride, in lieu of performing a reasonable potential analysis, the
draft permits carry forward a waste load allocation ("WLA")—apparently
developed over thirty years ago. See App. A to fact sheets: Fluoride Wasteload
Allocation,North Toe River Mining Discharges (discussing 1986 group
allocation). By design, the allocation uses what it describes as a"bubble permit"
concept that allows "localized impacts" and"flexibility for the dischargers to
maintain compliance." Id. Instream fluoride data reported confirms such
"localized" exceedances are occurring from upstream of the Crystal facility to
downstream of the Sibelco North America facility—a span of over five river
miles. The fluoride WLA approach is flawed for several reasons.
First, any attempt at assessing river-wide impacts from multiple dischargers must
actually account for all inputs of fluoride. The WLA acknowledges additional
fluoride loading is occurring through stormwater from the mines, yet the decades-
See, e.g., NPDES Permit No.NC0000353,NPDES Permit No.0000400,NPDES Permit No. 0000175,
NPDES Permit No.0000361,NPDES Permit No.0084620;each of the industrial discharge permits recognize total
suspended solids as sources of pollution.
7

old permitted WLA has not been revised to account for additional fluoride
loading.
Next, the bubble permit approach itself is problematic; it essentially converts a
miles-long stretch of river into a mixing zone where water quality exceedances of
fluoride are occurring. This cannot be squared with federal or state law, or
current NPDES permitting guidance, which requires limits sufficiently stringent
to assure water quality standards are met, and not (as here) exceeded. Even if a
mixing zone is appropriate for each fluoride discharge,NPDES guidance is clear
that any mixing zone must be far more constrained. EPA's own NPDES Permit
Writers' Manual cautions that"the use and size of the mixing zone must be
limited such that the waterbody as a whole will not be impaired and such that all
designated uses are maintained." 6.2.5.2 Mixing Zone Size (emphasis added).
Examples given are for defined geometric shapes that occupy portions of the
water column within rivers around outfalls, not mixing of multiple discharges for
miles of river—which risks creating a long, degraded stretch. The limits proposed
here, based on a stale WLA, are not sufficiently stringent to maintain water
quality standards, which is the basic objective of a WQBEL exercise.
• Chloride (Red Hill and Crystal facilities): The draft permits contain no TBELs
for chloride, and a monitor-only requirement derived from a reasonable potential
analysis ("RPA"). This leaves the chloride discharges unlimited, which assures
no protection for water quality. In addition, it appears the RPA builds in
assumptions that ignore multiple dischargers of chloride on the stretch of river.
The fact sheet for Red Hill (NPDES Permit No. 000085839), for example,
indicates an assumption of"zero background,"when there are five upstream
dischargers of chloride. EPA's NPDES guidance instructs permit writers to use a
"critical background in-stream pollutant concentration in mg/L"in conducting
RPA—presumably to get a better understanding of real-world impacts of
additional discharges. NPDES Permit Writers' Manual at 6.3 (determining the
need for WQBELs).8 In re-evaluating the need for WQBELs, DWR should apply
NDPES guidance.
• Narrative criteria for deleterious substances, colored or other waste: The
draft permits are silent on compliance with North Carolina's narrative water
quality criteria prohibiting visible and other discharges that are injurious to
recreation and aquatic life. Clean Water Act regulations are clear that permit
limits must be developed to assure compliance with narrative water quality
criteria. See 40 C.F.R. § 122.44(d)(1)(i); see also NPDES Permit Writers'
Manual (2010) at 6-23 (describing this obligation for narrative criteria). North
Carolina's narrative water quality standard for deleterious substances and other
wastes allows their presence in"only such amounts as shall not render the waters
$Available at hgps://www.epa.%zov/sites/production/files/2015-09/documents/pwm_chapt 06.pdf.
8

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 2B.0211(12) (standards for Class C waters).
Attached are photos of the North Toe River during sampling and a statement
describing conditions in September 2015, during the prior permit cycle. See
Photographs and Statement of S. Evans &H. Carson(Att. B-E). The river was
not just turbid, but was an unnatural chalky white color—almost certainly
attributable to mining-related waste in the river. Deposits have piled up in places
at the river's edge, and the river had a caustic, chemical odor to paddlers. See id.
As these photos, statements from individuals in the river, and recent river closure
in summer 2018 indicate,9 recreation use is impaired by conditions in the North
Toe. The excessive discharges of pollution from these facilities, which create
visible changes to the water and produce a chemical smell, must be abated. The
draft permits make no effort to ascertain non-compliance with North Carolina's
narrative water quality standard—a gap that must be remedied.
• pH: We support DWR's revision of all permit limits to reflect the applicable
water quality standard, 6-9 standard units. Although Sibelco contended in
comments it would have to add treatment to achieve this limit, the fact that such
treatment options are available is further confirmation that pH limits should be
tightened. To the extent Sibelco asserts "that adding additional chemicals to our
streams is not a preferred measure for maintaining water quality,"10 we agree.
The addition of chemicals to Sibelco's wastewater treatment system to achieve
tighter effluent limits should not result in more chemicals in the North Toe River;
Sibelco's wastewater effluent system ought to be designed to remove chemicals
from wastewater effluent discharge, not add them. If Sibelco's effluent discharge
profile would change based on complying with North Carolina's water quality
standard for pH, this would need to be disclosed through an amended application.
Any additional effluent discharge concentrations would have to be evaluated by
DWR.
B. Monitoring and Reporting
In addition to tightening permit limits themselves, a monthly average should be added to
Red Hill's fluoride discharges. EPA regulations mandate that all permit limits shall, unless
impracticable, be stated as both daily maximum and average monthly discharge limitations. 40
C.F.R. § 122.45(d). This is the only one of the six facilities that lacks a monthly average limit
for fluoride, indicating use of such a limit is not impracticable.
9 Assessment of Civil Penalty for Violations of the Reporting Requirements(Case No.: LM-2018-0051),
NPDES Permit No.0000353 (Feb.4,2019),on file with DEQ.
10 Sibelco Response to Draft NPDES Permit Renewals(Nov.27,2018).
9

We support the addition of monitoring requirements for aluminum, copper, lead, nickel
and zinc to the draft permits, particularly based on the presence of metals in reported effluent
data and prior investigation of stormwater from mines that receive wastewater sludge, indicating
these are pollutants of concern. See, e.g., NPDES Permits 0000400 and 0000353, Short Form
2C. However, a monthly sampling frequency would be more useful than quarterly for purposes
of evaluating discharges of metals occurring on a continuing basis. Nothing in the fact sheet
demonstrates or suggests that monthly monitoring for metals is impractical, and monthly
monitoring appears necessary"to yield data which are representative of the monitored activity."
See 40 C.F.R. § 122.48(b).
C. Waste Disposal/Removed Substances
The permit renewal fact sheets reveal that the processing facilities have been treating
residuals, or sludge, from their wastewater treatment process as tailings, and disposing of them in
the mines. EPA, according to the fact sheets, has already expressed concern over"potential
pollutants" in stormwater from the mines because of these practices. Quartz Corps submitted
with its application a"sludge management plan"that describes this process for its facilities. As
described, these disposal practices appear to run afoul of NPDES permit conditions for sludge
disposal. The"removed substances"provision requires any sludge removed in the course of
treatment to comply with N.C. Gen. Stat. § 143-215.1 and to "prevent any pollutant from
entering waters of the State." NPDES Permit Standard Conditions, Sec. C (6). The facilities
must, under a separate condition, minimize or prevent any"sludge use or disposal in violation of
[the] permit with a reasonable likelihood of adversely affecting human health or the
environment." NPDES Permit Standard Conditions, Sec. B (2). Bypassing relevant permits for
sludge disposal, by treating wastewater sludge as mine tailings, appears to violate these
conditions.
D. Groundwater Monitoring
The permit renewal fact sheets indicate settling ponds are incorporated into some or all of
the wastewater treatment systems at all of the facilities. See, e.g., Fact Sheet, Quartz Corps
(NC0000400) (describing inorganic solids settling pond); Sibelco N.A. (NC0000175)
(stabilization ponds); Red Hill (NC0085839) (settling pond). The draft permits renewals do not
indicate whether those settling basins are lined, and the fact sheets do not indicate whether
groundwater contamination is a risk. Standard conditions for NPDES permits require
groundwater monitoring to "determine compliance . . . with the current groundwater standards."
NPDES Permit Standard Conditions, Part II, Sec. B;see also N.C. Gen. Stat. § 143-215.1(i), (k)
(addressing monitoring and corrective action for protection of groundwater). Groundwater
sampling should be required in the permit renewals around any unlined wastewater treatment
basins to assess compliance with groundwater standards.
E. DEQ Must Take Steps to Protect Federally Listed Appalachian Elktoe
All six of the discharges permitted under this renewal are located a short distance
upstream from designated critical habitat for the State- and federally-listed endangered
Appalachian elktoe mussel in the North and South Toe Rivers. Designation of Critical Habitat
10

for the Appalachian Elktoe, 67 Fed. Reg. 61,016, 61,027 (Sept. 27, 2002). In its most recent 5-
year review, which took place in 2017, the Fish and Wildlife Service assigned the elktoe a
recovery priority number of"5c," indicating "a high degree of threat and a low recovery
potential" and"reflect[ing] a species that may be in conflict with development activities or other
forms of economic activity." Appalachian Elktoe (Alasmidonta raveneliana) 5-Year Review:
Summary and Evaluation, at 3-4 (Aug. 28, 2017).11 The North Toe and South Toe Appalachian
elktoe populations,part of the Nolichucky River basin population, are highly important in
preventing further declines in this species. According to the Fish and Wildlife Service,
"[b]ecause of the small size of the surviving populations of the Appalachian elktoe, the species'
restricted range, and the limited amount of suitable habitat available to the species. . . . actions
that are likely to destroy or adversely modify the Appalachian elktoe's critical habitat are also
likely to jeopardize this species." 67 Fed. Reg. at 61,029.
The Appalachian elktoe recovery plan points specifically to the protection of existing
elktoe "populations and remaining areas of suitable habitat" as "vital"to species recovery.
Recovery Plan For The Appalachian Elktoe, at 10 (Aug. 26, 1996).12 At the time the recovery
plan was developed, the elktoe population in the Nolichucky basin was one of only two known
populations. Recovery Plan at 2. The other, a population in the Little Tennessee River once
considered the healthiest and most robust population remaining, experienced a dramatic and
currently unexplained die off from 2005 —2015. 5-Year Review at 5. The Nolichucky basin
population is now one of just seven known populations, and is significant as one of the two
largest and"most likely to maintain long-term viability." Id. This population is also important
because it "occup[ies] multiple independent watersheds,"which provides "protection from an
event that might affect only one of the watersheds,"while other populations are"vulnerable to
extirpation from a single event." Id. at 5-6.
Appalachian elktoe, like all mussels, is particularly susceptible to sedimentation, among
other causes noted for its decline. A primary factor causing the elimination of the species from
most of its historic range is "the runoff of silt and other pollutants from poorly implemented
mining, construction/development, agricultural, and past logging activities." Appalachian Elktoe
Determined To Be an Endangered Species, 59 Fed. Reg. 60,324, 60,326 (Nov. 23, 1994).13 The
Appalachian elktoe in the South Toe River are already under threat from sedimentation related to
road construction, id. at 8; issuing these permits without attempting to address TSS exceedances
and turbidity impairment poses further risk to an already-struggling population that is vital to
species recovery.
Under the NPDES Memorandum of Agreement between North Carolina and the EPA, the
State is required to follow certain procedures in administering the delegated NPDES program.
NPDES Memorandum Of Agreement Between The State Of North Carolina And The United
11 Available at https:Hecos.fvvs. og v/ecpO/profile/speciesProfile?spcode=FO1J.
12 Available at hlWs:Hecos.fws. oP v/ecp0/profile/speciesProfile?spcode=FO1J.
13 Available at hlWs:Hecos.fws. oP v/ecp0/profile/speciesProfile?spcode=FO1J.
11

States Environmental Protection Agency Region 4, at 12-13 (Oct. 15, 2007).14 In order"to
address issues involving federally-listed species and designated critical habitats, relative to
issuance of NPDES permits,"the State has agreed to "provide notice and copies of draft permits
to the U.S. Fish and Wildlife Service and National Marine Fisheries Service." Id. at 12. This
mechanism exists so that the State "may receive information from the Services on federally-
listed species and designated critical habitats in State, with special emphasis on aquatic or
aquatically-dependent species." Id. at 12-13. As far as commenters are aware, the State has not
followed this procedure and elicited comment on critical habitat from FWS.
Additionally, the State is required to "develop site-specific management strategies" for
waters that"provide habitat for federally-listed aquatic animal species that are listed as
threatened or endangered." 15A N.C. Admin. Code 213.0110. Such a management strategy can
be developed as part of designating the waters as Outstanding Resource Waters under 15A N.C.
Admin. Code 213.0225, or as part of creating a basinwide water quality management plan under
15A N.C. Admin. Code 213.0227. Rule .0110 requires that such a plan be developed within
"each watershed's first complete five year cycle following adoption of this Rule." Although Rule
.0110 went into effect in 2000, the State has developed neither an ORW designation nor a site-
specific management strategy through the basinwide management planning cycle for this critical
habitat. Permitting discharge of mining wastewater into this critical habitat without first
implementing such required management planning for species and water quality protection is
error.
F. Draft Permits Will Not Achieve Compliance with Water Quality Standards
State and federal law prohibit issuance of NPDES permits that contribute to violations of
water quality standards. Under the Clean Water Act,North Carolina cannot issue a NPDES
permit that will contribute to violations of water quality standards. See 33 U.S.C. §
1311(b)(1)(C). State regulations impose a similar requirement: "No permit maybe issued when
the imposition of conditions cannot reasonably ensure compliance with applicable water quality
standards and regulations of all affected states." 15A N.C. Admin. Code 2H.0112 (c) (final
action on NPDES permit applications).
These permit renewals would contribute to violations of water quality standards for
turbidity, fluoride, and recreation and aesthetic standards, for the reasons described above. In
addition to these shortcomings in the permit terms themselves, several of the facilities have a
recent history of non-compliance with these very permit terms. This is a separate reason to re-
evaluate whether the permit terms are sufficiently stringent to assure compliance with water
quality standards. The Altapass facility(NC0000353), for example, recently received NOVs and
penalties for overflows, a pH violation, and an acid spill, resulting in a fish kill. The Quartz
Corps (NC0000400) reports exceeding fluoride limits, and Red Hill (NC0085839) has received
recent NOVs for frequency and monitoring violations.
14 Available at https://www.epa.gov/sites/production/files/2013-09/documents/nc-moa-ppdes.pdf.
12

Because the current conditions have been insufficient to ensure compliance for several
facilities, DWR should consider whether the same conditions would in fact achieve compliance
with water quality standards. In the absence of being able to reasonably ensure compliance with
water quality standards, a permit renewal cannot issue.
G. DEQ Should Hold a Public Hearing
The reauthorization of these multiple, polluted discharges for years to come, into the
same stretch of river that is a designated a trout stream and important to the local outdoor
recreation economy in Western North Carolina, is of significant public interest. We reiterate our
February 7, 2019, request to DEQ to hold a public hearing,pursuant to 15A N.C. Admin. Code
2H.01 I I and .0109 (b), so that the community and interested stakeholders have a voice in the
health and future of the North Toe River. As DWR moves forward, it is critical that DWR set
sufficiently stringent permit limits that will meaningfully address and abate pollution in the
North Toe River.
Sincerely,
Amelia Y. Burnette
Senior Attorney
Julie Reynolds-Engel
Associate Attorney
Cc: via email only
Linda Culpepper, DEQ
Jeff Poupart, DEQ
Janet Mizzi, FWS
Molly Davis, EPA
13

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
100%recycled paper

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)).
2

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.").
3

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.
4

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
5