NC0000272_Comments_20240830

SOUTHERN 48 Patton Avenue, Suite 304 Telephone [phone]
ENVIRONMENTAL Asheville, NC 28801 Facsimile 828-258-2024
LAW
CENTER
August 30, 2024
Via Electronic Mail
Sergei Chernikov, Ph.D.
North Carolina Department of Environmental Quality
Division of Water Resources
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
[e-mail]
Re: Draft NPDES Permit NC0000272 Major Modification
Dear Dr. Chernikov:
Please accept these comments from the Southern Environmental Law Center on behalf of
MountainTrue, the French Broad Riverkeeper, the Tennessee Chapter of the Sierra Club, and the
Center for Biological Diversity regarding the proposed major modification of the National
Pollutant Discharge Elimination System ("NPDES") permit for Blue Ridge Paper Products, LLC
("Blue Ridge Paper"). We appreciate the Department of Environmental Quality's ("DEQ")
attention to mill closure activities and we are eager to see this site remediated but this
modification is premature —permit materials suggest DEQ lacks information to develop
appropriate pollutant and flow limits. Until it has sufficient information, the current permit
should remain in place. DEQ must also clarify that Blue Ridge Paper does not have authority to
discharge groundwater remediation wastewater under the current or modified permit.
I. Factual Background
We provided substantial legal and factual background information in comments
submitted on the 2022 renewal of Blue Ridge Paper's NPDES permit. We attach and incorporate
those comments here both for reference and because DEQ failed to correct multiple errors in the
previous draft permit.'
Following issuance of the current NPDES permit, Blue Ridge Paper announced plans to
close its Canton mill.2 Multiple entities have since been involved in assessing environmental
contamination at the site. DEQ reports that it is working to "assess potential environmental
impacts and determine actions to maintain compliance, continue required remediation activities,
' See Letter from Spencer Scheidt, SELC, to Sergei Chernikov, DEQ (April 30, 2021), included as Attachment 1.
2 Draft Fact Sheet, 1.
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

and appropriately handle the end of plant operations."3 DEQ Secretary Biser has explained that
their goal is "first and foremost to make sure that the site is remediated for future productive
use," adding that DEQ "will hold the company accountable for responsible closure."
The North Carolina Collaboratory announced in October 2023 that it is investigating
contamination from the mill in partnership with DEQ. The Collaboratory plans to "look for a
wide range of compounds, including components of the toxic papermaking byproduct known as
black liquor" and per- and polyfluoroalkyl substances, or PFAS.S Their assessment will take over
a year. According to the Collaboratory's Executive Director, they "don't know what [they]'re
going to find" but in initial tests of a contaminated groundwater seep "[1]ead levels were 2,796
times higher than the state standard. Copper was 332 times higher, chromium 21 times higher,
nickel 17 times higher, zinc five times higher and arsenic nearly four times higher. Beryllium
came in more than 30% above the state limit."6
The Environmental Protect Agency ("EPA") also recently initiated enforcement activities
at the mill related to ground and surface water contamination. 7
Mill closure means a substantial amount of waste will no longer be channeled to the
onsite wastewater treatment plant ("WWTP"), however the WWTP will continue processing
some waste streams including wastewater from the City of Canton and leachate from a Blue
Ridge Paper landfill. To accommodate this change in inflow, Blue Ridge Paper plans to make
significant changes to the existing WWTP in three phrases. In April 2023, DEQ informed Blue
Ridge Paper that "[p]rior to Phase III, [DEQ] will require permit modification based on
anticipated changes in effluent volume and wastewater characteristics. The permittee ... is to
submit a revised permit application at least thirty (30) calendar days in advance of the
implementation of Phase III of the transition plan."8 DEQ previously explained that the permit
modification would require a "full[] characteriz[ation of] the wastewater coming from the Town
of Canton," "[f]urther investigation of the normal and maximum/minimum flows that would be
expected from the Town of Canton," and "[c]haracterization of the landfill leachate and review
3 See DEQ, Canton Paper Mill, https://www.deq nc.gov/news/key-issues/canton-paper-mill#WasteManagement-
12687.
a Holly Kays, What's left behind: Canton mill closure leaves complex environmental footprint, Smoky Mountain
News (June 28, 2023), https:Hsmokymountainnews.com/archives/item/35886-what-s-left-behind-canton-mill-
closure-leaves-complex-environmental-footprint.
5 Holly Kays, Research to test for contamination near Canton mill property, Smoky Mountain News (October 25,
2023), https:Hsmokymountainnews.com/outdoors/item/36625-research-to-test-for-contamination-near-canton-mill-
property.
6 Id.
See EPA, Civil Enforcement Case Report, Case No. 04-2024-7000, https:Hecho.epa.gov/enforcement-case-
report?activity_id=3603796449.
a Letter from Landon Davidson, DEQ, to John McCarthy, Blue Ridge Paper (April 12, 2023).
N

of the mill's last NPDES permit priority pollutant analysis."9 Specific to PFAS, DEQ previously
noted that "domestic wastewater from the town of Canton ... might contain some PFAS."10
On September 11, 2023, Blue Ridge Paper submitted a permit modification request in
response to DEQ's April 2023 letter but that request lacks virtually all of the information DEQ
previously said was necessary.' 1 The application also requested "authorization to treat purge
wastewater from the groundwater wells associated with the site investigation" into groundwater
contamination, even thought that investigation is incomplete and it is unclear what contaminants
may be present in that wastewater.12
Nevertheless, without the information it previously described as important to its permit
decision, DEQ issued a draft permit modification on July 25, 2024. The draft permit authorizes
discharges of "wastewater associated with the Blue Ridge Paper Products Inc. pulp and paper
mill, the Town of Canton's chlorinated domestic wastewater and landfill leachate."13 It includes
limits on only three pollutants —biological oxygen demand, total suspended solids, and fecal
coliform.
II. The permit may not authorize discharges of groundwater remediation
wastewater.
As noted above, Blue Ridge Paper's NPDES major modification application requested
"authorization to treat purge wastewater from the groundwater wells associated with the site
investigation" through the WWTP.14 The fact sheet accompanying the draft permit indicates that
the WWTP is currently processing "groundwater remediation" wastewater and separately
describes "groundwater remediation" as the "type of waste" processed by the WWTP.15 Because
Blue Ridge Paper has not adequately disclosed its intention to discharge this waste stream —or
the pollutants present in the waste stream —it may not discharge "groundwater remediation"
wastewater under the existing NPDES permit, nor can that discharge be approved with the
proposed major modification.16
The Clean Water Act prohibits the discharge of pollutants without a permit and a specific
waste stream cannot be permitted if it is not disclosed in a NPDES permit application. EPA
reaffirmed this requirement in December 2022, explaining that "no permit may be issued to the
owner or operator of a facility unless the owner or operator submits a complete permit
9 See DEQ, Preliminary Evaluation and Recommendations for Revised WWTP Operations, Pactiv Evergreen —
Canton, N. C. Mill, https://www.deq.nc.gov/water-resources/preliminary-evaluation-and-recommendations-revised-
wwtp-operations-canton-mill/open.
10 DEQ, Response to Comments on Draft NPDES Permit No. NC000272, 9 (April 16, 2021) [hereafter "Response to
Comments"].
11 Letter from James Clary, Blue Ridge Paper, to Dr. Sergei Chernikov (Sept. 11, 2023).
12 Blue Ridge Paper, NPDES Permit Application, Attachment II-B (Sept. 11, 2023).
13 Draft Permit, 3.
14 Blue Ridge Paper, NPDES Permit Application, Attachment II-B.
15 Fact Sheet, 1.
16 It is unclear if DEQ is equating "purge wastewater from the groundwater wells" and "groundwater remediation"
wastewater but the failure to adequately disclose either waste stream means neither can be permitted.

application" providing all information "that the permitting authority may reasonably require to
assess the discharges of the facility."17
At no point during the 2022 NPDES permit renewal did Blue Ridge Paper request
authorization to process groundwater remediation wastewater through its WWTP. As a result, the
current permit does not authorize the treatment and discharge of that waste stream. If this is
happening under the current permit, it is illegal.18
For similar reasons, DEQ cannot authorize the discharge of groundwater remediation
wastewater through this major modification. For a permittee to disclose a discharge sufficient to
obtain coverage under a NPDES permit, it must provide enough information for the permitting
agency to "be[] able to judge whether the discharge of a particular pollutant constitutes a
significant threat to the environment."19 This requires providing all relevant information,
including the concentration, volume, and frequency of the discharge.20 The Clean Water Act
places the burden of disclosure on the permit applicant because they are in the best position to
know what is in their discharge.21
If a NPDES permit applicant does not adequately disclose its release of a pollutant, the
applicant does not have approval to discharge the pollutant.22 As previously explained by DEQ:
Part of the permit applicant's burden in this regard is to disclose all relevant
information, such as the presence of known constituents in a discharge that pose a
potential risk to human health. The permit applicant is required to disclose "all
known toxic components that can be reasonably expected to be in the discharge,
including but not limited to those contained in a priority pollutant analysis." 15A
N.C.A.C. 2H .01050) (emphasis added). [...].23
11 Memorandum from Radhika Fox, Assistant Administrator, U.S. Env't Prot. Agency, Addressing PFAS
Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs, 2 (December 5,
2022).
18 See Piney Run Pres. Assn v. Cmy. Comm is of Carroll Cnty., MD, 268 F.3d 255, 268 (4th Cir. 2001) ("To the
extent that a permit holder discharges a pollutant that it did not disclose, it violates the NPDES permit and the
[Clean Water Act].").
"Piney Run, 268 F.3d. at 268 ("Because the permitting scheme is dependent on the permitting authority being able
to judge whether the discharge of a particular pollutant constitutes a significant threat to the environment, discharges
not within the reasonable contemplation of the permitting authority during the permit application process, whether
spills or otherwise, do not come within the protection of the permit shield.").
20 See In re Ketchikan Pulp Co., 7 E.A.D. 605 (EPA) (1998) ("In explaining the provisions of 40 C.F.R. §
122.53(d)(7)(iii), which required dischargers to submit quantitative data relating to certain conventional and
nonconventional pollutants that dischargers know or have reason to believe are present in their effluent, the [EPA]
stated: `permit writers need to know what pollutants are present in an effluent to determine appropriate limits in the
absence of effluent guidelines."').
u S. Appalachian Mountain Stewards, 758 F.3d at 566 ("The statute and regulations purposefully place the burden
of disclosure on the permit applicant.").
22 See In re Ketchikan Pulp Co., 7 E.A.D. 605; Piney Run, 268 F.3d. at 268; S. Appalachian Mountain Stewards, 758
F.3d at 567.
23 Amended Complaint, N.C. Dept. of Environmental Quality v. Chemours, 17 CVS 580, 6-7 (N.C. Super. 2018)
(citing 33 U.S.C. § 1342(k); Piney Run, 268 F.3d at 265), https://perma.cc/ZT3U-7QJB.
2

Blue Ridge Paper has failed to do that here. At most, it has requested "authorization to
treat purge wastewater from the groundwater wells associated with the site investigation" and
indicated that "[o]ne removal option being considered is a pump and treat system utilizing the
[WWTP] to treat impacted groundwater. ,24 Blue Ridge Paper states that it "will continue to
work with [EPA] and [DEQ] on evaluating this and other removal options. ,25 This falls leagues
short of the Clean Water Act's requirements because it fails to disclose any of the constituents in
groundwater remediation waste stream. DEQ must make clear in any final permitting decision
that —at least based on the information currently before the agency —it is not authorizing the
discharge of contaminated groundwater through the WWTP.
III. DEQ must require Blue Ridge Paper to disclose the pollutants in its WWTP
influent.
For similar reasons, DEQ may not authorize the discharge of wastewater from the Town
of Canton or landfill leachate without more information about the pollutants present in those
waste streams. Like groundwater remediation wastewater, Blue Ridge Paper has not provided
sufficient information about Canton's wastewater or landfill leachate for DEQ to "judge whether
the discharge of a particular pollutant constitutes a significant threat to the environment. ,26
Consequently, pollutants associated with those waste streams cannot be discharged under a
modified permit.
DEQ previously recognized that characterization of those waste streams would be
necessary before modifying the existing permit to authorize their discharge. In 2023, it explained
that a modified permit would have to be informed by a "full[] characterize[ation of] the
wastewater coming from the Town of Canton," "[fJurther investigation of the normal and
maximum/minimum flows that would be expected from the Town of Canton," and
"[c]haracterization of the landfill leachate and review of the mill's last NPDES permit priority
pollutant analysis."27
DEQ now appears to be abandoning that position with no explanation. The
portion of the major modification application that should include information about
pollutants in the WWTP influent is blank.28 Instead, Blue Ridge Paper indicates it will
provide this "required testing and analysis" information in the future -after the permit
has already been issued.29 But DEQ cannot issue an NPDES permit now and
subsequently obtain the information required to develop permit limits. If Blue Ridge
2' Blue Ridge Paper, NPDES Permit Application, Attachment II-B.
2s Id.
26 Piney Run, 268 F.M. at 268 ("Because the permitting scheme is dependent on the permitting authority being able
to judge whether the discharge of a particular pollutant constitutes a significant threat to the environment, discharges
not within the reasonable contemplation of the permitting authority during the permit application process, whether
spills or otherwise, do not come within the protection of the permit shield.").
27 See supra note 9.
28 See Blue Ridge Paper, NPDES Permit Application, Attachment II-B.
29 Letter from James Clary, Blue Ridge Paper, to Dr. Sergei Chemikov (Sept. 11, 2023).
5

Paper does not know what pollutants are in its WWTP influent then DEQ cannot process
its modification request and the current permit must remain in place.
While this is true of all pollutants, it is particularly important that DEQ require Blue
Ridge Paper to disclose the presence of any PFAS in its WWTP influent. As DEQ is aware,
PFAS are a group of man-made chemicals manufactured and used broadly by industry since the
1940s.30 PFAS pose a significant threat to human health at extremely low concentrations. Two of
the most studied PFAS—perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonate
("PFOS")—are bioaccumulative and highly persistent in humans. 31 These chemicals build up in
the human body, and have been shown to cause developmental effects to fetuses and infants,
kidney and testicular cancer, liver malfunction, hypothyroidism, high cholesterol, ulcerative
colitis, obesity, decreased immune response to vaccines, reduced hormone levels, delayed
puberty, and lower birth weight and size.3' Recent literature also suggests PFAS exposure can
result in decreased fertility in women.33
30 Lifetime Drinking Water Health Advisories for Four Perfluoroalkyl Substances, 87 Fed. Reg. 36,848, 36,849
(June 21, 2022); Our Current Understanding of the Human Health and Environmental Risks ofPFAS, U.S. ENV'T
PROT. AGENCY, https://perma.cc/V6PX-2PNK (page saved Mar. 8, 2023).
31 87 Fed. Reg. at 36,849; U.S. Env't Prot. Agency, Interim Drinking Water Health Advisory: Perfluorooctanoic
Acid (PFOA) CASRN 335-67-1 (June 2022), at 3-4, htt2s://perma.cc/F89R-PJUV; U.S. Env't Prot. Agency, Interim
Drinking Water Health Advisory: Perfluorooctane Sulfonic Acid (PFOS) CASRN 1763-23-1 (June 2022), at 3-4,
hltps://penna.cc/TQM6-57PZ.
"U.S. Env't Prot. Agency, Drinking Water Health Advisories for PFAS: Fact Sheet for Communities at 1-2 (June
2022), available at htt2s://perma.cc/T7FQ-EKD6; Agency for Toxic Substances and Disease Registry,
Toxicological Profile for Perfluoroalkyls (May 2021); PFAS National Primary Drinking Water Regulation
Rulemaking, 88 Fed. Reg. 18,638, 18,642 (Mar. 29, 2023) (discussing developmental effects).
33 Nathan J. Cohen, Exposure to Perfluoroalkyl Substances and Women's Fertility Outcomes in a Singaporean
Population -Based Preconception Cohort, 873 SCi. TOTAL ENV'T 162267 (May 15, 2023).
on

Exposure to other PFAS, such as perfluorobutanoic acid ("PFBA"),34 perfluorohexanoic
acid ("PFHxA"),35 perfluorononanoic acid ("PFNA"),36 perfluorodecanoic acid ("PFDA") 31
perfluoropentanoic acid ("PFPeA" ),38 and perfluoroheptanoic acid ("PFHpA" )'31 is associated
with many of the same health outcomes as exposure to PFOA and PFOS.
While the harms to human health are extreme, PFAS are also detrimental to wildlife and
the environment. The chemicals have been shown to cause damaging effects in fish,41
34 U.S. Env't Prot. Agency, IRIS Toxicological Review of Perfluorobutanoic Acid (PFBA, CASRN 375-22-4) and
Related Salts at xii (Dec. 2022), https://perma.cc/7N53-6K2M (explaining that "available evidence indicates that
developmental, thyroid, and liver effects in humans are likely caused by PFBA exposure in utero or during
adulthood").
35 U.S. Env't Prot. Agency, IRIS Toxicological Review of Perfluorohexanoic Acid [PFHxA, CASRN 307-24-4] and
Related Salts at xiv, 14 (Apr. 2023), https://perma.cc/6562-8JA5 (concluding exposure to PFHxA "likely causes"
liver, fetal development, and immune system complications, as well as decreased red blood cell counts).
36 U.S. Env't Prot. Agency, IRIS Toxicological Review of Perfluorononanoic Acid (PFNA) and Related Salts
(Public Comment and External Review Draft) (Mar. 2024), hgps://perma.cc/S6KK-EBVV; Cheryl E. Rockwell et
al., Acute Immunotoxic Effects of Perfluorononanoic Acid (PFNA) in C57BL/6 Mice, J. OF CLINICAL AND
EXPERIMENTAL PHARMACOLOGY S4-002 7 (2013), https://perma.cc/GH27-BHL9 (concluding that PFNA can
disrupt blood cell functions and alter immune system responses); Agency for Toxic Substances and Disease
Registry, Toxicological Profile for Perfluoroalkyls at 7-21 (May 2021) [hereinafter "ATSDR, Toxicological Profile
for PFAS"], https://penna.cc/L8PY-DYKN (noting decreased pup survival in rodents as well as developmental
delays, decreases in birth weight, decreased sperm motility, and altered immune responses); Francesca Coperchini et
al., Thyroid Disrupting Effects of Old and New Generation PFAS, FRONTIERS IN ENDOCRINOLOGY (Jan. 2021),
https://penna.ccNSK9-KBHR; Natalie M. Crawford et al., Effects ofPerfluorinated Chemicals on Thyroid
Function, Markers of Ovarian Reserve, and Natural Fertility, 69 REPRODUCTIVE TOXICOLOGY 53-59 (2017); Ryan
C. Lewis et al., Serum Biomarkers of Exposure to Perfluoroalkyl Substance in Relation to Serum Testosterone and
Measures of Thyroid Function Among Adults and Adolescents from NHANES 2011-2012, 12 INT'L J. ENv'T RES.
PUBLIC HEALTH 6098-6114 (2015).
31 U.S. Env't Prot. Agency, Draft IRIS Toxicological Review of Perfluorodecanoic Acid (PFDA) and Related Salts
(Public Comment and External Review Draft) (Apr. 2023), https://penna.cc/D75M-AWHN.
38 Xin Liu et al., Structure -Based Investigation on the Association Between Perfluoroalkyl Acids Exposure and Both
Gestational Diabetes Mellitus and Glucose Homeostasis in Pregnant Women, 127 ENV'T INT'L 85-93 (2019),
https://penna.ccN86G-BP4R; Surabhi Shah-Kulkarni et al., Prenatal Exposure to Perfluorinated Compounds
Affects Thyroid Hormone Levels in Newborn Girls, 94 ENV'T INT'L 607-13 (2016), https://penna.ccNDR2-YAL6;
Xiaofei Song et al., Biomonitoring PFAAs in Blood and Semen Samples: Investigation of a Potential Link Between
PFAAs Exposure and Semen Mobility in China, 113 ENv'T INT'L 50-54 (2018).
39 European Chemicals Agency, Committee for Risk Assessment RAC Opinion: Proposing Harmonised
Classification and Labelling at EU Level of Perfluoroheptanoic Acid; Tridecafluoroheptanoic Acid (Dec. 10, 2020),
https://perma.cc/3N4G-S4Q9 (finding PFHpA may cause liver and thyroid damage as well as a myriad of fertility
and fetal development concerns including lower birth weight, delayed mammary gland development, low sperm
count and mobility, and increased risk of miscarriage).
41 Chen et al., Perfluorobutanesulfonate Exposure Causes Durable and Transgenerational Dysbiosis of Gut
Microbiota in Marine Medaka, 5 ENv'T SCI. & TECH LETTERS 731-38 (2018); Chen et al., Accumulation of
Perfluorobutane Sulfonate (PFBS) and Impairment of Visual Function in the Eyes of Marine Medaka After a
LifeCycle Exposure, 201 AQUATIC TOXICOLOGY 1-10 (2018); Du et al., Chronic Effects of Water -Borne PFOS
Exposure on Growth, Survival and Hepatotoxicity in Zebrafish: A Partial Life -Cycle Test, 74 CHEMOSPHERE 723-29
(2009); Hagenaars et al., Structure Activity Relationship Assessment of Four Perfluorinated Chemicals Using a
Prolonged Zebrafish Early Life Stage Test, 82 CHEMOSPHERE 764-72 (2011); Huang et al., Toxicity, Uptake
Kinetics and Behavior Assessment in Zebrafish Embryos Following Exposure to Perfluorooctanesulphonicacid
(PFOS), 98 AQUATIC TOXICOLOGY 139-47 (2010); Jantzen et al., PFOS, PFNA, and PFOA Sub -Lethal Exposure to
7

amphibians,41 reptiles," mollusks,43 and other aquatic invertebrates 44—resulting in
developmental and reproductive impacts, behavioral changes, adverse effects to livers, disruption
to endocrine systems, and weakened immune systems. 45
The pulp and paper industry is a known consumer of PFAS.46 PFAS are incorporated into
paper production in multiple ways. They can be added to the pulp to improve the internal water-
resistant properties of paper products,47 or added externally as a surface coating for packaging
products.48 In addition to incorporation into manufactured products, fluoropolymers are used on
equipment and production processes for their non -corrosive properties, from pulp mills and
Embryonic Zebrafish Have Different Toxicity Profiles in terms of Morphometrics, Behavior and Gene Expression,
175 AQUATIC TOXICOLOGY 160-70 (2016); Liu et al., The Thyroid -Disrupting Effects of Long -Term
Perfluorononanoate Exposure on Zebrafish (Danio rerio), 20 ECOTOxICOLOGY 47-55 (2011); Chen et al.,
Multigenerational Disruption of the Thyroid Endocrine System in Marine Medaka after a Life -Cycle Exposure to
Perfluorobutanesulfonate, 52 ENVT SCI. & TECH. 4432-39 (2018); Rotondo et al., Environmental Doses of
Perfluorooctanoic Acid Change the Expression of Genes in Target Tissues of Common Carp, 37 ENVT
TOXICOLOGY & CHEM. 942-48 (2018).
41 Ankley et al., Partial Life -Cycle Toxicity and Bioconcentration Modeling of Perfluorooctanesulfonate in the
Northern Leopard Frog (Rana Pipiens), 23 ENv'T TOXICOLOGY & CHEM. 2745 (2004); Cheng et al., Thyroid
Disruption Effects of Environmental Level Perfluorooctane Sulfonates (PFOS) in Xenopus Laevis,
20 ECOTOXICOLOGY 2069-78 (2011); Lou et al., Effects of Perfluorooctanesulfonate and Perfluorobutanesulfonate
on the Growth and Sexual Development of Xenopus Laevis, 22 ECOTOXICOLOGY 1133-44 (2013).
42 Guillette et al., Blood Concentrations of Per- and Polyfluoroalkyl Substances are Associated with Autoimmune-
like Effects in American Alligators from Wilmington, North Carolina, FRONTIER TOXICOLOGY 4:1010185 (Oct. 20,
2022).
41 Liu et al., Oxidative Toxicity of Perfluorinated Chemicals in Green Mussel and Bioaccumulation Factor
Dependent Quantitative Structure -Activity Relationship, 33 ENVT TOXICOLOGY & CHEM. 2323-32 (2014); Liu et
al., Immunotoxicity in Green Mussels under Perfluoroalkyl Substance (PEAS) Exposure: Reversible Response and
Response Model Development, 37 ENVT TOXICOLOGY & CHEM. 1138-45 (2018).
44 Houde et al., Endocrine -Disruption Potential of Perfluoroethylcyclohexane Su fonate (PFECHS) in Chronically
Exposed Daphnia Magna, 218 ENVT T POLLUTION 950-56 (2016); Liang et al., Effects of Perfluorooctane Sulfonate
on Immobilization, Heartbeat, Reproductive and Biochemical Performance of Daphnia Magna,
168 CHEMOSPHERE 1613-18 (2017); Ji et al., Oxicity of Perfluorooctane Sulfonic Acid and Perfluorooctanoic Acid
on Freshwater Macroinvertebrates (Daphnia Magna and Moina Macrocopa) and Fish (Oryzias Latipes), 27 ENVT
TOXICOLOGY & CHEM. 2159 (2008); MacDonald et al., Toxicity of Perfluorooctane Sulfonic Acid and
Perfluorooctanoic Acid to Chironomus Tentans, 23 ENVT TOXICOLOGY & CHEM. 2116 (2004).
45 See supra notes 40-44.
46 See Basic PFAS Info, supra note 29 (listing paper and packaging as known applications); Nate Seltenrich, PFAS
in Food Packaging: A Hot, Greasy Exposure, 128 Envtl. Health Perspectives 054002-1 (2020) (Attachment C); see
also Org. for Econ. Cooperation and Dev., Synthesis Paper on Per -and Polyfluorinated Chemicals (PFCs) (2013)
(Attachment C) (listing paper and packaging among major uses of PFAS).
41 See Xenia Trier et al., PFAS in Paper and Board for Food Contact: Options for Risk Management of Poly -and
Perfluorinated Substances, (Nordic Council of Ministers 2018) (Attachment C); Gregory Glenn et al., Per -and
Polyfluoroalkyl Substances and their Alternatives in Paper Food Packaging, Comprehensive Reviews in Food Sci.
and Food Safety (2021) (Attachment C) ("PFAS chemicals tend to coat the surfaces of fibers, including fibers
located internally when internal sizing containing PFAS is used such as with molded pulp paper packaging.").
48 See supra note 45; Andrew B. Lindstrom, Mark J. Strynar, and E. Laurence Libelo, Polyfluorinated Compounds:
Past, Present, and Future, 45 Envtl. Sci. & Tech. 7954 (2011) (Attachment C).
N.

recovery operations to the paper machines themselves.49 EPA recognized in its PFAS Action
Plan that "pulp and paper" was among the point -source dischargers "likely to be discharging
PFAS in their wastewater" and prioritized the industry for detailed study."
It is possible —if not likely —that that PFAS are present in Blue Ridge Paper's landfills
and may be present in the landfill leachate which is processed through the WWTP. In our
comments on the 2022 NPDES permit renewal for Blue Ridge Paper, we informed DEQ that
PFAS had been found in seeps from the landfills.51 DEQ responded that it would "work with [the
Division of Waste Management] to address the issue" but we are unaware of any steps taken to
address this problem.52 DEQ has also previously explained that influent to the WWTP from the
Town of Canton "might contain some PFAS."53
DEQ must require Blue Ridge Paper to submit a full accounting of the pollutants present
in the WWTP's influent —including PFAS—before it can process this major modification
request. Moreover, this information must be incorporated into the permit application itself
because the public relies on the information submitted in the publicly available application to
participate in the permitting process. 54
Finally, we encourage DEQ to incorporate a permit condition making clear that Blue
Ridge Paper does not have permission to discharge PFAS. The South Carolina Department of
Health and Environmental Control has incorporated such language in permits. For example, the
permit issued to Inman Mills's Ramey Plant states that the "permittee acknowledges the permit
shield only applies where the discharge of pollutants are adequately disclosed and within the
reasonable contemplation of the permitting authority at the time the permit was issued."55 The
Tennessee Department of Environment and Conservation has included similar language in
permits providing that the "permittee has no permit shield for the discharge of PFAS compounds
because no such chemicals were disclosed in the permit application or otherwise under TCA 69-
3-108(Vy,56 Here, DEQ should make clear that Blue Ridge Paper may not discharge PFAS and
other pollutants which are not disclosed in its NPDES permit application.
" See Leon Magdzinski, Fluoropolymer Use in the Pulp and Paper Industry, CORROSION 99 (1999) (noting
"fluoropolymer have become ubiquitous in the pulp and paper industry"); Rainer Lohmann et al., Are
Fluoropolymers Really of Low Concern for Human and Environmental Health and Separate from Other PFAS?, 54
Envtl. Sci. & Tech. 12,820 (2020) (Attachment C).
51 U.S. Envtl. Protection Agency, EPA's Per- and Polyfluoroalkyl Substances (PFAS) Action Plan (2019), https://
www. epa. gov/sites/production/files/2019-02/documents/pfas_action_plan_021319_508compliant_ 1.pdf
51 See supra note 1 at 43-45.
52 Response to Comments, 10.
53 Id. at 9.
54 See 15A N.C. Admin. Code 2H.0109, 2H.0115.
55 Inman Mills Ramey Plant, NPDES Permit No. SC0002496 (April 28, 2021).
56 Holliston Holdings, LLC, NPDES Permit No. TN0002330 (January 30, 2020).
9

IV. DEQ must evaluate and impose technology -based effluent requirements.
The absence of information regarding pollutants in the WWTP's influent leads to another
legal error: DEQ's abdication of its responsibility to impose technology -based effluent limits in
the draft permit.
One of the primary functions of the Clean Water Act is that is prohibits the discharge of
pollutants without a permit which, in turn, must include limits on pollutant discharges. These
limits are required to get stricter over time ultimately phasing out pollutant discharges in order to
accomplish "the national goal that the discharge of pollutants into the navigable waters be
eliminated."57
NPDES permits include two primary types of pollutant limits: technology -based effluent
limits and water quality -based effluent limits (discussed more below). DEQ may only issue a
NPDES permit if it assures compliance with all technology -based and water -quality -based
effluent limits.58 Technology -based limits set the minimum level of control required in every
NPDES permit.59 A permittee must implement technology -based limits, even if doing so goes
beyond the level necessary to meet water quality standards.60 However, if technology -based
limits are insufficient to meet water quality standards, dischargers must implement additional
limits —water quality -based effluent limitsto ensure compliance with water quality
standards.61
Technology -based limits are derived from one of two sources: (1) national effluent
limitation guidelines ("ELGs") issued by EPA for various industries,62 or (2) case -by -case
determinations using the "best professional judgment" ("BPJ") of permit writers when EPA has
not issued an ELG specific to industry discharges.63 When EPA has promulgated ELGs but they
only apply to certain pollutants or activities, other pollutants or activities "are subject to
regulation on a case -by -case basis" using BPJ as well.64 North Carolina rules also require
technology -based limits, and in the absence of a promulgated ELG, direct agency staff to
calculate a limit using EPA development documents and other available information.65
Whether establishing limits using ELGs or BPJ, the fact sheet that accompanies the draft
permit reveals that DEQ made virtually no effort to develop and impose technology -based
57 33 U.S.C. § 1251(a)(1).
5133 U.S.C. § 1342(a)(1)(A); 40 C.F.R. § 122.43(a).
59 40 C.F.R. § 125.3(a).
60 U.S. Envtl. Protection Agency, NPDES Permit Writers' Manual at § 5.1 (2010) [hereinafter "Permit Writers'
Manual"], https://www.epa.gov/sites/production/files/2015-09/documents/pwm_2010.pdf.
61 Id.
62 33 U.S.C. § 1314(b).
63 See 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3(c)(2).
64 40 C.F.R. § 125.3(c)(3).
65 See 15A N.C. Admin. Code 0213.0406(b)(3).
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limits.66 This is unlawful. The Clean Water Act requires DEQ to assess and impose technology -
based effluent limits.
We raised similar concerns in comments on the 2021 draft NPDES permit for Blue Ridge
Paper. There, DEQ justified its refusal to impose technology -based limits by explaining that
limits "for all parameters of concern are not necessary ... to ensure that the pollutants are
adequately controlled because many of the pollutants originate from similar sources, have similar
treatabilities, and are removed by similar mechanisms. Because of this, it may be sufficient to
establish effluent limits for one pollutant as a surrogate or indicator pollutant that ensures the
removal of other pollutants of concern."67 The Clean Water Act leaves no room for this approach
as implemented by DEQ. In any event, DEQ has made no effort to establish that the few limits it
includes in the draft permit —for fecal coliform, total suspended solids, and biological oxygen
demand —are "surrogates" for technology -based controls of other pollutants. It may not justify
its failure to impose technology -based limits in the draft modified permit using the same
(inadequate) justification it used for the final 2022 NPDES permit.
V. DEQ's assessment of water quality -based effluent limits is unlawful.
Instead of imposing technology -based limits, DEQ jumps directly to evaluating the need
for water quality -based limits. Water quality -based limits are only required if technology -based
limits are insufficient to meet water quality standards.61 In other words, the Clean Water Act
requires DEQ to impose technology -based standards first and impose water quality -based limits
subsequently, only if the technology -based limits are insufficient to ensure compliance with
water quality standards. DEQ must go back, impose technology -based standards and then
evaluate whether water quality -based standards are necessary.
Unfortunately, DEQ's attempt to develop water quality -based limits also falls short. DEQ
evaluated the need for those limits purportedly by "conduct[ing] EPA -recommended analyses to
determine the reasonable potential for toxicants to be discharged at levels exceeding water
quality standards/EPA criteria."69 DEQ explains that it used the "discharge data on the EPA
Form 2C and DMR reports" to complete this analysis which "indicate[d] no reasonable potential
to violate the surface water quality standards or EPA criteria."70
These representations are borderline misleading. First, DEQ states that it used EPA Form
2C to complete this analysis but the portion of that form with pollutant level data is blank. It
includes no data for DEQ to use when performing a reasonable potential analysis.
Second, for most constituents DEQ completed its reasonable potential analysis with a
single data point. DEQ cannot complete a defensible reasonable potential analysis with such
66 The sole exceptions here may be biological oxygen demand and total suspended solids. It is unclear from the fact
sheet if those limits were developed using technology -based or water quality -based standards.
67 Response to Comments, 6.
6s Id.
69 Fact Sheet, 3.
70 Id.
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limited data. DEQ's reasonable potential analysis spreadsheet makes clear that anything less than
nine data points feeds a default value into DEQ's reasonable potential equation which may not
be reflective of actual water quality. Even Blue Ridge Paper seems to concede that DEQ cannot
complete a reasonable potential analysis with the data in hand. Instead, it explains that it will
"conduct the required testing and analysis in the applicable sections of Form 2C"—the same
section DEQ claims here it used to complete its reasonable potential analysis —after the permit is
issued.
DEQ's approach cannot be squared with the Clean Water Act's requirements. As
explained above, the first step here is to apply technology -based limits. If those limits are
insufficient to protect water quality, the agency must impose water quality -based limits using a
process that can detect the "reasonable potential" to violate water quality standards. This requires
using actual data —not a blank Form 2C—and having enough data points to complete its
analysis. Alternatively, DEQ could assess "reasonable potential" using one of the qualitative
assessment processes discussed in EPA's Permit Writers' Manual.71 But its current approach —
attempting to complete a quantitative reasonable potential analysis with virtually no data —is
unreasonable.
There are multiple other problems with DEQ's assessment of water quality -based limits.
DEQ committed these same errors when developing the current permit and we incorporate our
prior comments on that permit here, specifically problems raised in Sections II(C) and II(K).
VI. The draft permit violates the anti -backsliding provisions of the Clean Water Act.
Another effect of DEQ's failure to collect data regarding pollutants in the WWTP's
influent and impose appropriate technology -based and water quality -based limits is that pollutant
limits in the current permit are either reduced or abandoned in the draft permit. This violates the
Clean Water Act's anti -backsliding provision which requires that "effluent limitations, standards
or conditions [in a new permit] must be at least as stringent as the final effluent limitations,
standards, or conditions in the previous permit" unless "the circumstances on which the previous
permit was based have materially and substantially changed since the time the permit. ,12 To be
sure, Blue Ridge Paper may be able to meet this standard based on changed circumstances but
as explained above —it has yet to provide information necessary to determine what any new
permit limits should be. Until Blue Ridge Paper provides information showing that
circumstances have "materially and substantially changed" in a way that justifies new permit
limits —and provides sufficient information to enable DEQ to calculate those limits —the limits
in the existing permit cannot be removed without violating anti -backsliding requirements.
VII. DEQ has failed to justify the use of a mixing zone.
The draft permit purports to authorize a mixing zone "defined as 0.4 miles between the
diffuser and the Fiberville Bridge" but fails to justify the use of that mixing zone consistent with
71 See Permit Writers' Manual § 6.3.3.
72 40 C.F.R. § 122.44(1).
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North Carolina regulations.73 Those regulations provide that mixing zones may be established
"on a case -by -case basis after consideration of the magnitude and character of the waste
discharge and the size and character of the receiving waters."74 "Mixing zones shall be
designated such that discharges will not ... result in acute toxicity to aquatic life ... or prevent
free passage of aquatic organisms around the mixing zone; ... result in offensive conditions; ...
produce undesirable aquatic life or result in a dominance of nuisance species outside of the
assigned mixing zone; or ... endanger the public health or welfare." 75 DEQ has made no effort
to show those requirements are met here and we are unaware of any reason the discharge
authorized in the draft permit would require a mixing zone, or at least a mixing zone of the size
authorized.
We raised these same concerns in comments on the last permit renewal and DEQ
responded that the "mixing zone in the permit is a de facto determination of the mixing zone that
existed in the permit for years."76 This is incorrect. There are no "de facto" mixing zones in
North Carolina —one must be established in the permit according to North Carolina regulations
or it does not exist. Even if DEQ had properly established a mixing zone in the last permit, it has
provided no justification for maintaining the mixing zone in this permit. Indeed, if changes to the
facility justify a major modification to permit limits, they also require revisiting the necessity of
the mixing zone.
VIII. DEQ may not authorize the proposed modification without an Engineering
Alternatives Analysis.
We commend DEQ for recognizing that an Engineering Alternatives Analysis ("EAA")
is required to process this major modification request but again the agency puts the cart before
the horse —this time by attempting to excuse the requirement to prepare an EAA until after DEQ
has issued the permit.77 This is practically unworkable —the EAA cannot inform permit
development if it is not submitted until after the permit is issued —and unlawful.
EAAs provide critical information necessary to DEQ's permitting decisions including the
"rationale and a demonstration of need for the projected flow volumes," "a summary of the
available waste treatment and disposal options that were considered and why the proposed
system and point of discharge were selected," and "a narrative description of the proposed
treatment works, including type and arrangement of major components, in sufficient detail to
ensure that the proposed facility has the capability to comply with the permit limits."78
Regarding groundwater remediation systems such as the one discussed briefly in Blue Ridge
Paper's NPDES permit application, EAAs must "evaluate whether WWTP connection, land
application, infiltration galleries, in -situ groundwater remediation wells, or closed -loop
73 Draft Permit, 8.
74 15A N.C. Admin. Code 2B.0204(b).
75 15A N.C. Admin. Code 2B.0204(b).
76 Response to Comments, 9.
77 Fact Sheet, 1.
78 15A N.C. Admin. Code 2H.0105.
13

groundwater remediation wells are viable disposal alternatives."79 Because this information is
critical to permit development, EAAs must be submitted with NPDES permit applications.80
DEQ "most frequently returns [EAAs] as incomplete due to inadequate flow justification,
inadequate alternatives evaluations, and/or lack of documentation/references used to design and
cost alternatives."81
Here, DEQ should have returned Blue Ridge Paper's permit application as incomplete for
numerous reasons including the absence of an EAA. Instead, the permit fact sheet explains that
Blue Ridge Paper "is currently negotiating the sale of the property [including the WWTP] to a
redevelopment company. Upon completion of the sale, the new owner would have to submit the
Engineering Alternative Analysis to justify the requested flow limit."82 In other words, DEQ
proposes to establish new flow and pollutants limits in this permit and then require the owner of
the WWTP to subsequently prepare an EAA to justify the limits that DEQ has already imposed.
This unlawfully defeats the purpose of preparing an EAA. DEQ may not issue a new permit with
significant changes until that decision can be informed by an EAA as required by North Carolina
law.
IX. Conclusion
We are eager to see the Canton mill site remediated and redeveloped and stand ready to
help the town and other parties in that process. To expedite cleanup, DEQ must implement its
Clean Water Act obligations without controversy. We appreciate the agency's apparent desire to
move this process along but this major modification is premature because DEQ lacks the
information necessary to develop permit limits consistent with state and federal law. Until Blue
Ridge Paper can provide that information, the current permit should remain in place.
As always, if we can answer questions about our concerns please do not hesitate to let us
know. Thank you for your consideration.
Sincerely,
pa,� ;,YT
Patrick Hunter
Managing Attorney
79 DEQ, Engineering Alternatives Analysis (EAA) Guidance Document, 5 (Jan. 30, 2024).
80 15A N.C. Admin. Code 211.0105(c).
81 DEQ, Engineering Alternatives Analysis (EAA) Guidance Document, 1.
82 Fact Sheet, 1.
14