NC0000272_Comments_20240830 (2)

Attachment 1

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] PATTON AVENUE, SUITE 304 Facsimile 828-258-2024
ASHEVILLE, NC 28801-3321
April 30, 2021
Via Electronic Mail and First -Class U.S. Mail
Sergei Chernikov, Ph.D.
Environmental Engineer III
North Carolina Department of Environmental Quality
Division of Water Resources
Industrial NPDES Permitting Unit
1617 Mail Service Center
Raleigh, NC 27699-1617
Email: [e-mail]
Re: Draft NPDES Permit NC0000272 Renewal
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 draft National Pollutant Discharge Elimination
System ("NPDES") permit renewal for Blue Ridge Paper Products, LLC d.b.a. Evergreen
Packaging ("Blue Ridge Paper") proposed on November 10, 2020 ("the Draft Permit"). Our
organizations are concerned that the Draft Permit provides insufficient protections for the Pigeon
River, in contravention of the Clean Water Act, the Code of Federal Regulations, and North
Carolina state law. The Draft Permit must be withdrawn, revised, and reissued for public
comment.
Specifically, the North Carolina Department of Environmental Quality ("DEQ") must
make the following changes, in addition to others identified below:
• Require daily maximum temperature thresholds.
• Acknowledge that Blue Ridge Paper's own 2014 study shows it cannot assure the
protection of a balanced, indigenous population below the discharge and require Blue
Ridge Paper to implement technology controls to comply with North Carolina's water
quality standards for temperature.
• Reinstate the requirement to conduct fish -tissue dioxin testing at least three times per
five-year permit period.
• Interpret North Carolina's narrative standard for "colored and other wastes" in a manner
that protects all aspects of "aesthetic quality," not just shifts in true color.
• Evaluate currently available technologies to reduce color discharge.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
100% recycled paper

• Develop technology -based limits for discharged pollutants not covered by EPA's
outdated industry effluent limitation guidelines.
• Require complete disclosure of the mill's prior, current, and future use of forever
chemicals in its processes, and the potential for ongoing discharge into the Pigeon River.
• Account for leachate leaking from the mill's old landfills into the Pigeon River while
setting permit pollution limits.
• Require Blue Ridge Paper to submit a current and complete application that discloses all
pollutants currently discharged, not those discharged and subject to disclosure seven
years ago under a lower permitted flow.
I. Factual Background
The Pigeon River flows over 100 miles from its headwaters in the Middle Prong
Wilderness to its confluence with the French Broad River. Historically, this entire stretch of
water was a free -flowing, clear, cold -water river' home to over ninety-five native fish species.2
That changed in 1908 when the Canton paper mill began dumping toxic effluent —including
dioxins, furans, and chloroform —directly into the river. In the mill's early years of operation, as
much as 95% of the Pigeon's flow was diverted for industrial processes and expelled as
effluent.3 By 1964, the Pigeon was so polluted that a thirty -two -kilometer segment of the river
below the mill had no fish at all.4 However, over the past few decades a combination of factors
have improved water quality on the Pigeon River, including progressively more stringent permit
limits imposed under the Clean Water Act's NPDES program, regulatory enforcement actions,
and the mill's modernization efforts.
Below the mill, the Pigeon River is classified as a Class C waterbody, which means its
waters must be "suitable" for "aquatic life propagation, survival, and maintenance of biological
integrity (including fishing and fish); wildlife; secondary contact recreation ... [and]
agriculture." 15A N.C. Admin. Code 2B .0211(1)—(2). Secondary recreation includes fishing and
paddling. Class C waters must also meet specific numeric criteria, like temperature limits
specific to mountain streams, and narrative limits, including preventing colored and other wastes
from degrading the river's aesthetic qualities. For several decades, the reach below the mill has
failed to meet the Class C criteria for benthic aquatic life, triggering its listing as impaired under
Section 303(d) of the Clean Water Act.5 This impaired area has recently expanded, according to
the latest draft § 303(d) list issued by DEQ.6 Above the mill, the Pigeon River is designated as
' Richard A. Bartlett, Troubled Waters: Champion International and the Pigeon River Controversy (1995).
2 D.A. Etnier & W.C. Starnes, The Fishes of Tennessee, University of Tennessee (1993).
3 J. Larry Wilson, Charles C. Coutant, & John Tyner, Canton Mill Balanced and Indigenous Species Study for the
Pigeon River (Clean Water Act Section 316(a) Demonstration) at 32 (2014) [hereinafter `BIP"].
4 J.B. Messer, Survey and Classification of the Pigeon River and Tributaries, North Carolina, North Carolina
Wildlife Resources Commission (1964).
S See, e.g., N.C. Dep't of Envtl. Quality, Div. of Water Res., 2018 NC Category S Assessments "303(d) List" Final,
https://files.nc.gov/ncdeq/Water%2OQuality/Planning/TMDL/303 d/2018/2018-NC-303-d--List-Final.pdf
6 See N.C. Dep't of Envtl. Quality, Div. of Water Res., Integrated Report Files, https://deq nc.gov/about/divisions/
water -resource s/planning/modeling-assessment/water-quality-data-assessment/integrated-report-files.

WS-IIl and Trout Waters. These more protective designations ensure that the waters above the
mill safeguard water -supply resources and sustain conditions for trout propagation and survival
on a year-round basis. Both designations end at the Canton water supply intake just before Blue
Ridge Paper's mill. No § 303(d) impairments exist above the mill.
Although the mill has discharged pollution into the Pigeon for more than a century, the
mill received its first permit authorizing polluted discharges under the Clean Water Act in 1973.
In 1985, North Carolina began administering the permitting program under authority delegated
from EPA, and issued its first NPDES permit for the mill. This permit included a Clean Water
Act § 316(a) thermal variance allowing the mill to exceed North Carolina's thermal standards so
long as the mill maintained: (1) a monthly average in -stream temperature maximum of 32 °C in
the summer and 29 °C in the winter, and (2) a monthly average maximum temperature rise above
the ambient temperature of upstream waters of 13.9 'C. For perspective, 32 °C is about 90 °F,
around the maximum temperature of the Persian Gulf in mid-summer;8 and 29 °C is
approximately 85 °F, around the temperature of the ocean off of Miami Beach in August.9
These temperature limits remained unchanged until 2010, when North Carolina reduced
the maximum monthly average temperature difference between upstream and downstream waters
from 13.9 °C to 8.5 'C. That same year, a coalition of conservation groups and the government of
Cocke County, Tennessee, challenged North Carolina's reissuance of the mill's NPDES permit,
arguing the permit violated thermal -pollution limitations and improperly relied on an illegal
color variance. On April 24, 2012, the Division of Water Quality ("DWQ") and the N.C.
Environmental Management Commission ("EMC") entered into a partial settlement agreement
with the petitioners,10 who agreed to dismiss their temperature -related claims provided that,
among other things:
• DWQ modified the permit —subject to EPA approval —to add a weekly average in -
stream temperature maximum of 32 °C from July to September and 29 °C from October
through June.
• Blue Ridge Paper prepared an updated Balanced Indigenous Population study (`BIP" or
"BIP study") that (1) complied with Section 316(a) of the Clean Water Act; (2) surveyed
mussels and shellfish in the mainstem of the Pigeon; (3) included "detailed studies of
macro -invertebrates and shellfish"; (4) conducted thermal sampling "at 20 locations in
North Carolina's water quality standards specify a maximum temperature of 29 °C for mountain and upper
piedmont waters and 32 °C for lower piedmont and coastal plain waters, and forbid heated discharges from
increasing the ambient temperature of the receiving waters above 2.8 'C. 15A N.C. Admin. Code 02B .0211(18).
'Persian Gulf, Encyclopedia Britannica (2021), https://www.britannica.com/place/Persian-Gulf.
9 Liz Osborn, Average Ocean Water Temperatures at Miami Beach, Current Results, https://www.currentresults.
com/Oceans/Temperature/miami-beach-average-water-temperature.php (last visited Apr. 19, 2021).
io Partial Settlement Agreement and Joint Stipulation to Stay, N.C. O.A.H No. 10 E.H.R. 4341 (Apr. 24, 2012)
[hereinafter "Partial Settlement Agreement"] (Attachment A).

the Pigeon River and 2 locations in a reference river"; and (5) "intensively" surveyed for
fish, macroinvertebrates, shellfish, and periphyton using certain sampling protocols.
On June 1, 2012, DWQ issued a permit modification incorporating the weekly average
standard." Several months later, consultants hired by Blue Ridge Paper began sampling for the
updated BIP study. Above the mill, the BIP study found a cold -water fish community; pollution -
intolerant macroinvertebrates; habitat -forming hornleaf riverweed; and native salamanders,
crayfish, and rare mussels. Below the mill, the study found a "warm -water fish community";
pollution -tolerant macroinvertebrates; invasive Asiatic clams; and a total lack of salamanders,
native crayfish, and hornleaf riverweed. Despite these severe impairments, the BIP study
concluded that the community below the mill was "`balanced' and similar to what would have
been there without the thermal discharge."12
In 2014—the last year of the 2010 permit's coverage —petitioners also settled their color -
related claims with DWQ and EMC.13 Pursuant to the final agreement, Blue Ridge Paper agreed
to file a timely permit -renewal application, where the challenged discharge limits would be
reconsidered. DWQ and EMC further agreed to "take all reasonable steps to issue an NPDES
Permit within 24 months of receipt of a complete permit renewal application."14 A few months
later, Blue Ridge Paper applied for renewal of the permit.15 Yet instead of timely processing the
permit renewal, DWQ administratively extended the 2010 permit for another five years.
When DEQ 16 finally revisited the permit in 2020, it inexplicably weakened discharge
limits. Like its predecessors, the current Draft Permit would authorize discharge of the mill's
polluted wastewater, including industrial, stormwater, municipal, and landfill leachate, into the
Pigeon River. Material changes to the 2010 permit terms include: (1) increasing the flow limit
from 29.9 million gallons per day ("MGD") to 34 MGD; (2) removing the color variance while
requiring no further reductions in colored -waste discharges; (3) reducing the frequency of fish -
tissue sampling for dioxin; (4) allowing a mixing zone; and (5) recalculating chloroform limits.
The Draft Permit also recommends reverting to the temperature variance limits set for the
original 2010 permit: seasonal monthly average maximums of 32 and 29 °C and a monthly
average maximum temperature differential of 8.5 'C. No weekly average or daily maximums are
proposed.
" Letter from Charles Wakild, Engineer, N.C. Dep't of Env't and Nat. Res., to Paul Dickens, Manager, EHS, Blue
Ridge Paper Products Inc. (June 1, 2012) (Attachment C).
12 BIP at 10.
13 Settlement Agreement, N.C. O.A.H No. 10 E.H.R. 4982 (Sept. 5, 2014).
14 Id.
15 Blue Ridge Paper Products Inc. dba Evergreen Packaging, Application for Permit Renewal NPDES Permit NC
0000272 (Dec. 30, 2014) [hereinafter "Permit Application"].
" In 2015, the North Carolina Department of Environment and Natural Resources was renamed the North Carolina
Department of Environmental Quality, and the Division of Water Quality was renamed the Division of Water
Resources.
al

In making the recommendation to revert to the pre -settlement temperature variance terms,
Division of Water Resources ("DWR") staff evaluated Blue Ridge Paper's 2014 BIP study and
erroneously concluded that temperature was not prohibiting a balanced and indigenous
population. In addition, DWR reviewed existing temperature data and concluded that Blue Ridge
Paper still cannot meet North Carolina's water -temperature standards. Therefore, DWR is
recommending continuation of the variance that allows Blue Ridge Paper to discharge heated
water and exceed water quality standards for temperature in the Pigeon River below the mill.17
II. The Permit Must Include Stronger Limits on Discharges into the Pigeon River.
The Clean Water Act requires various pollution -control measures "to restore" the
"chemical, physical, and biological integrity" of the Pigeon River. 33 U.S.C. § 1251(a). These
measures —including North Carolina's NPDES permits —have been enormously important to the
progressive recovery of the Pigeon downstream of the mill. However, that recovery and
restoration is incomplete. DEQ's Draft Permit fails to make the meaningful progress required,
and even allows backsliding on critical permit terms. DEQ must revise its Draft Permit to honor
its obligations under state and federal law to fully restore and protect the Pigeon.
A. The Draft Permit fails to set daily temperature thresholds as required by law.
Under North Carolina and federal law, all permit limits for continuous discharges shall,
"unless impracticable," be stated as both daily maximum and average monthly discharge
limitations. 40 C.F.R. § 122.45(d) (excepting publicly owned treatment works); 15A N.C.
Admin. Code § 2H .0143(26) (incorporating this federal regulation by reference).18 The
maximum daily discharge limit for pollutants like temperature is the "average" measurement
over the course of one day. 40 C.F.R. § 122.2; 15A N.C. Admin. Code 2H .0143(1)
(incorporating this definition).
Blue Ridge Paper is a continuous discharger. But the Draft Permit only includes "monthly
average instream temperature" discharge limitations.19 Neither the Draft Permit nor the Draft
Fact Sheet mention any consideration of daily limits, much less explain why setting daily limits
would be "impracticable." Therefore, the Draft Permit is arbitrary, capricious, and contrary to
federal and state law. Cf. In re City ofAmes, 6 E.A.D. 374, 389 (1996) (holding that the EPA
could disregard the mandates of 40 C.F.R. § 122.45(d) "only if [the specified] average limits are
impracticable"); In re City & County of San Francisco, 4 E.A.D. 559, 579 (1993) ("Unless it is
impracticable to establish average [daily] or monthly [discharge] limitations ... the regulations
require average [daily] and monthly [discharge] limitations.").
17 Draft Fact Sheet at 10.
18 North Carolina's delegated NPDES program must "at all times be conducted in accordance with the
requirements" of the Clean Water Act and EPA's implementing regulations. 40 C.F.R § 123.1(f); 15A N.C. Admin.
Code 2H .0118 ("Any state NPDES permit will contain effluent limitations and standards required by ... the Clean
Water Act which is hereby incorporated by reference including any subsequent amendments and editions.").
" See Draft Permit at 4 n.11 (emphasis added).
5

Worse still, DEQ is also silent on its decision to retreat from the weekly average limits
for temperature added to the permit in 2012, in accordance with the partial settlement agreement.
Certainly, DEQ is obligated to impose a daily average temperature limit —for both maximum
seasonal temperatures and the maximum temperature differential20as discussed above. But
even if that were not the case, DEQ cannot backslide on the terms of its temperature variance by
reverting from a weekly to a less stringent monthly standard. 33 U.S.C. 1342(o); 40 C.F.R. §
122.44(1); 15A N.C. Admin. Code 02B .0408(25) (incorporating 122.44 by reference).
To comply with the law, the Draft Permit must be revised and reissued with daily and
monthly maximum temperature limitations. In addition, the fact sheet must acknowledge that the
starting point for DEQ's variance analysis is the weekly average limits set in accordance with the
settlement agreement in 2012.
B. Blue Ridge Paper's BIP study is flawed and cannot support a continued thermal
variance.
Under the Clean Water Act, heated industrial wastewater, also called "thermal effluent,"
is a pollutant that cannot be discharged to jurisdictional waters without an NPDES permit. 33
U.S.C. § 1342; see also 40 C.F.R. § 122.2 (listing "heat" as a "pollutant"). Ordinarily, such
permits must impose effluent limits on heated wastewater sufficient to satisfy state water quality
standards for temperature. 33 U.S.C. § 1311(b)(1)(C) (requiring the establishment of "any more
stringent limitation" necessary to meet "water quality standards," including state standards for
temperature). Clean Water Act § 316(a), however, provides narrow authority for a variance from
water quality standards for temperature when such effluent limits are "more stringent than
necessary to assure the protection and propagation of a balanced, indigenous population of
shellfish, fish, and wildlife." Id. § 1326(a).
Under this provision, an industrial discharger seeking a § 316(a) temperature variance
bears the burden of demonstrating both: (1) that effluent limits otherwise required by the Clean
Water Act are "more stringent than necessary" to protect the balanced, indigenous population;
and (2) that the thermal discharge allowed by such a variance will protect the balanced,
indigenous population in the future. See 33 U.S.C. § 1326; 40 C.F.R. § 125.73(a) (requiring the
applicant to demonstrate that water quality standards are more stringent than necessary). If the
applicant fails to make either of these showings they must comply with the thermal water quality
standards. In this case, the BIP showed neither.
Protection of the balanced, indigenous population may be shown using one of three
approaches: a predictive study showing that future thermal discharges allowed by the variance
will not appreciably harm21 the balanced, indigenous population; a retrospective study showing
20 The 2012 settlement agreement only required a weekly average limitation for the maximum seasonal temperature
limits. See Partial Settlement Agreement, supra note 10 (Attachment A). But federal regulations require daily
average limits for all temperature limits, including the maximum temperature differential between upstream and
downstream of the mill.
21 EPA's regulations do not define appreciable harm, but Environmental Appeals Board decisions have emphasized
factors such as a shift in species composition and the "magnitude of the changes in the community as a whole and in
on

that past thermal discharges have not caused appreciable harm; or, alternatively, a study showing
that, despite the fact that thermal discharges have appreciably harmed the balanced, indigenous
population in the past, no future harm will occur. 40 C.F.R. §§ 125.70, 125.73(c). Here, Blue
Ridge Paper attempted to show an absence of both prior appreciable harm and potential future
harm to a balanced, indigenous population in the Pigeon River. 22
Regardless of the demonstration method selected, thermal impacts cannot be considered
in isolation. 40 C.F.R. § 125.73(a). Instead, the applicant must show that "the cumulative impact
of its thermal discharge together with all other significant impacts on the species affected, will
assure the protection and propagation of a balanced indigenous [population]." Id. (emphasis
added).
EPA regulations define a balanced, indigenous population as "a biotic community
typically characterized by diversity, the capacity to sustain itself through cyclic seasonal
changes, presence of necessary food chain species and by a lack of domination by pollution
tolerant species." 40 C.F.R. § 125.71(c). Blue Ridge Paper acknowledges that the "balanced,
indigenous population" of fish, shellfish, and wildlife contemplated by the Clean Water Act is
the population that would have existed absent the impacts of the applicant's "thermal discharge
and other sources of pollution. ,23
Blue Ridge Paper began sampling for the BIP study used to support the 2020 thermal
variance in 2012, following partial settlement of the prior contested case. Researchers assessed
physical and biological metrics at multiple sampling stations, including several upstream of the
mill, several below, a few on the mainstem of the Pigeon in Tennessee, and at two locations on
the lower Swannanoa River.24 Biological sampling targeted fish, mussels and shellfish,
macroinvertebrates, periphyton, macrophytes, and other wildlife. All of these biotic categories
showed night -and -day differences in health and composition between upstream and downstream
populations:
• The BIP study acknowledged that the "fish community in the North Carolina reach
downstream of the Mill has more characteristics of a warm -water fish community than
does the river upstream of the Mill."25
individual species." In re Pub. Serv. Co. oflnd., 1 E.A.D. 590, *22 (1979). According to the BIP study, appreciable
harm is shown if "adverse impacts" are "present." BIP at 48.
22 BIP at 16, 69.
21 Id. at 20. See also 40 C.F.R. § 125.71(c) (stating that a balanced indigenous population excludes "species whose
presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance" with
water quality standards); In Re Dominion Energy Brayton Point, 12 E.A.D. 490, 557 (2006) ("[T]he population
under consideration is not necessarily just the population currently inhabiting the water body but a population that
may have been present but for the appreciable harm.").
24 BIP at 42, 45. BIP researchers decided to include reference sites from outside the Pigeon River watershed in order
to comply with EPA guidance suggesting "sampling more reference locations." Id. at 34. The researchers found the
lower Swannanoa River is an appropriate comparison because it "has comparable basin morphology and is part of
the larger French Broad River basin." Id. at 41; see infra Part II.BA (describing why the Swannanoa is not an
appropriate comparison).
25 BIP at 57.
7

• No mussels were found at any sampling sites,26 though two rare species —the wavy -rayed
lampmussel and the endangered Appalachian elktoe—have been found upstream of the
mill.27 Invasive and thermally tolerant Asiatic clams were found at every biological
sampling site downstream of the mill, whereas only one was found upstream .28
• Macroinvertebrate sampling scores29a measure of the benthic community's pollution
intolerance —were "Good" immediately above the mill, "Fair" in the five sites
immediately below the mill, "Good -Fair" in the next three downstream sites, and then
"Good" once more at the North Carolina station farthest downstream from the Mill .30
• Periphyton were generally present in ecologically insignificant amounts throughout the
river,31 though the study notes the "periphyton community in a small area of the zone of
initial mixing [below the mill] is dominated by blue-green algae with associated
thermally tolerant chironomid larvae."32
• No macrophytes (hornleaf riverweed) were found in the thermally affected reach, though
riverweed was found at three of the four upstream sites and two of the three Tennessee
sampling sites downstream.33
• The BIP also referenced two studies that found no salamanders34 or crayfish31 in the
thermally affected portion of the mainstem, though both taxa were found upstream and in
several tributaries of the Pigeon.36 BIP researchers did find one crayfish species in the
thermally affected reach: the non-native White River crayfish, a species more typically
found in sloughs, swamps, and sluggish lowland streams.37
In spite of these clear imbalances, the BIP study concluded that the community below the
mill is "`balanced' and similar to what would have been there without the thermal discharge" and
other sources of pollution.38 DEQ largely agreed, though it found that "the data do suggest some
26 Id. at 8.
27Id. at 37.
28 Id. at 87.
29 Specifically, North Carolina Biotic Index scores. See N.C. Dep't of Envtl. Quality, Standard Operating
Procedures for the Collection and Analysis of Benthic Macroinvertebrates 19 (2016) [hereinafter "2016 Benthic
SOP"].
31 BIP App'x B at 7, 38-39.
31 BIP at 9.
32 Id. at 58.
33 Id. at 9 (noting temperature is a limiting factor in the reach nearest the mill because "temperatures in summer can
exceed the [riverweed's] reported upper limit of 30 °C reported in the literature").
34 Nikki J. Maxwell, Baseline Survey and Habitat Analysis of Aquatic Salamanders in the Pigeon River, North
Carolina (2009) (unpublished master's thesis, University of Tennessee) (Attachment C).
35 David B. Dunn, A Survey of Crayfish in the Pigeon River and its Tributaries in Tennessee and North Carolina
(2010) (unpublished master's thesis, University of Tennessee) (Attachment C).
36 BIP at 8-9.
37 Id. at 89.
38 Id. at 10, 20.
N.

impact on the benthos community as a result of the thermal discharge."39 However, it discounted
these impacts as "not significant enough to exceed the broad definition of a Balanced and
Indigenous Population."40 But impacts do not need to be "significant" to disqualify a discharger
from receiving a § 316(a) thermal variance —they only need to be "appreciable" which the RIP
study itself defines as the presence of adverse impacts.41 More importantly, DEQ failed to
recognize that the BIP study's rosy conclusions are unsupported by the very evidence contained
within it. DEQ's reliance upon Blue Ridge Paper's insufficient demonstration is therefore
arbitrary and capricious.
1. The RIP study overlooked impacts on several crucial biotic groups.
Two important aspects of a balanced, indigenous population are that it (1) is
"characterized by diversity" and (2) supports "necessary food chain species." 40 C.F.R. §
125.71(c). EPA guidance42 clarifies that a community43 "characterized by diversity" means
"diversity at all trophic levels."44 In other words, "all of the major trophic levels present in the
unaffected portion of the water body should be present in the heat affected portions."45 In a
similar vein, the presence of "necessary food chain species" means that "the necessary food webs
remain intact so that communities will be sustaining. ,46 If any trophic levels or links in the food
chain will not be protected, the § 316(a) demonstration necessarily fails.47
EPA has identified six trophic levelsor "biotic categories" —that should be analyzed in
a Section 316(a) demonstration: phytoplankton, zooplankton, "habitat formers,"48
" Letter from Cyndi Karoly, Chief of the Water Sciences Section, on DEQ's Review of Evergreen Packaging's
Balanced and Indigenous Population Assessment, to Wallace McDonald, Manage of Evergreen Packaging (Jan. 11,
2019).
41Id. (emphasis added).
41 See supra notes 21-22.
42 In making the Section 316(a) demonstration, "the discharger shall consider any information or guidance published
by EPA to assist in making such demonstrations." 40 C.F.R. § 125.72(e) (emphasis added).
43 The term balanced, indigenous community "is synonymous" with the term balanced, indigenous population. 40
C.F.R. § 125.71(c).
44 Letter from James D. Giattina, Director, EPA Water Protection Division, to Colleen H. Sullins, Director, N.C.
DWQ (Feb. 22, 2010) [hereinafter "EPA Objection Letter"] (Attachment B).
45 Id.
46 Id.
47 See U.S. Envtl. Protection Agency, Interagency 316(a) Technical Guidance Manual and Guide for Thermal
Effects Sections of Nuclear Facilities Environmental Impact Statements at 16 (May 1, 1977) [hereinafter "EPA
Guidance Manual"], https://www3.epa.gov/npdes/pubs/owm000I.pdf (noting that a failure to show the protection
and propagation of any of the biotic categories results in a denial of the thermal variance); BIP at 46 (noting the
Section 316(a) demonstration must "ensure that all trophic levels present in the unaffected portion of the river were
present in the heat -affected portions" (emphasis added)).
48 According to EPA, "habitat formers" are "any assemblage of plants and/or animals characterized by a relatively
sessile life stage with aggregated distribution and functioning" as a "living and/or formerly living substrate"; a
"direct or indirect food source" for shellfish, fish, and wildlife; a biological mechanism for the stabilization and
modification of sediments"; a "nutrient cycling path or trap"; "specific sites for spawning"; or "nursery, feeding, and
cover areas for fish and shellfish." EPA Guidance Manual, supra note 47, at 76-77.
9

shellfish/macroinvertebrates, fish, and other vertebrate animals.49 The BIP study largely
followed these categories but added a seventh: periphyton.50 After examining these seven
categories, the RIP study concluded that "[a]ll trophic levels of the aquatic community (biotic
categories) were present,"" and "[s]implification of the aquatic community through loss of...
trophic levels has not occurred. ,52 Yet the BIP study's own statements, data, and references belie
this conclusion for three key biotic categories: shellfish, other vertebrates, and habitat formers.
a. Mussels
Mussels are "important components of the overall aquatic communit[y]" in the Pigeon.53
Yet "[n]o mussels had been found in [the thermally affected] reach in recent years."54 The BIP
discounted the importance of this significant biotic gap by observing that: (1) "no mussels [were]
observed at any of the sampling sites during 2012,"(2) DEQ surveys "have not documented any
naturally -occurring [sic] mussels in the Pigeon" in recent years, and (3) a recent study
"documented proof that mussels could survive and grow in the river below the mill."55
Elsewhere, however, the BIP recognized that rare mussels have been found upstream of
the mill, including the federally endangered Appalachian elktoe. Specifically, the BIP noted that
a small population of Appalachian elktoe mussels occurs "in the mainstem upstream of
Canton,"56 and rare wavy -rayed lampmussels have been found "in the upper [Pigeon] river above
Canton" and were "believed to have occurred historically through the lower Pigeon River" below
the mill.5' Both the elktoe58 and lampmussel59 are sensitive to high water temperatures. The
49Id. at 18-33.
50 BIP at 45.
51 Id. at 94.
52 Id. at 53.
53 Id. at 50.
54 Id. at 68.
55 BIP App'x B at 77 (emphasis added).
56 BIP at 83.
57Id. at 85.
58 Appalachian Elktoe Determined to be an Endangered Species, 59 Fed. Reg. 60,324, 60,328 (Nov. 23, 1994)
("Appalachian elktoe is found in cool, (it has not been recorded from extremely cold or warm waters) moderate to
fast -flowing water."); Gary S. Pandolfi, Jr., Effects of Climate, Land Use and In -Stream Habitat on Appalachian
Elktoe (Alasmidonta raveneliana) in the Nolichucky River Drainage 11 (2016) (unpublished master's thesis,
Appalachian State University) (Attachment C) (finding that Appalachian elktoe "could be undergoing recruitment
failure due to thermally mediated shifts in host fish abundance" and that warmer "[w]ater temperature may also
influence mussel metabolic rates, reduce survivorship of glochidia, and alter other life history parameters" ).
59 Jennifer M. Archambault et. al, Burrowing, Byssus, and Biomarkers: Behavioral and Physiological Indicators of
Sublethal Thermal Stress in Freshwater Mussels (Unionidae), 46 Marine and Freshwater Behavior and Physiology
229 (2013) (Attachment C) (finding the lampmussel experienced 50% mortality rates between 33.7 and 34.7 °C but
noting that "thermal stress can occur at relatively moderate temperatures" around 27 °C and concluding that "above -
average stream temperatures and changes in the seasonal phenology of stream temperature profiles and flows may
have detrimental behavioral and physiological effects to this already imperiled faunal group"); Heidi L. Dunn & J.R.
Petro, Freshwater Mussel Monitoring and Alternate Thermal Standards, Third Thermal Ecology and Regulation
10

elktoe, in particular, is likely range limited in part due to discharges from the mill.60 According
to the North Carolina Wildlife Resources Commission, agency "staff and others have
consistently found" both rare mussels "within a mile upstream of the mill," with the Appalachian
elktoe "most recently found in 2020."61 Neither mussel has been found downstream of the mill at
any location upstream of Crabtree Creeka stretch of nearly 14 miles.62
The only bivalve species that the RIP study did identify occurring in the reach below
Canton is the "introduced and rapidly spreading Corbicula fluminea": the invasive —and
thermally tolerant —Asiatic clam.63 This species has a "low tolerance for cold temperatures," and
often favors river stretches "with thermal discharges where warm effluents can provide a thermal
refuge for cold winters."64 Corbicula were found at every Pigeon River basin station up to
Pigeon River Mile ("PRM") 64.5 (the station immediately above the mill), where only one was
found.65 No clams were found at any sites farther upstream.66
The RIP study attempted to explain away this upstream —downstream pattern in two
different ways. First, it suggested that Corbicula "appeared to have been stopped in its regional
upstream invasions by the low -head dams at Canton. ,67 This is incorrect; as the study noted in
the previous sentence, the clam has already made it above the dams.68 Therefore, something else
must be responsible for this lopsided distribution. Second, the study opined that the presence of
this thermally tolerant species downstream of the mill "does not result from the thermal additions
by the Mill" because the "two sites of highest abundance do not correlate well with river
temperatures."69 But correlation is not causation; just because the BIP study's very limited
sample size (only I to 23 clams were collected at each site below PRM 64.5) does not show a
clear linear pattern tied to temperature does not mean temperature has no effect on the clam's
distribution. Asiatic clams are thermally tolerant —not necessarily thermophilic—so it is unclear
why the RIP assumed that as temperatures rise closer to the mill, so should clam abundance. The
BIP's conclusion that the abundance of a thermally tolerant clam below the mill is not due to the
mill's thermal effluent is further undermined by the researchers' failure to conduct winter
Workshop Report 1025382 (2012) (Attachment C) (noting that newly metamorphosed juveniles of the wavy -rayed
lampmussel experienced high rates of mortality during laboratory holding at 26-27 °C (citing pers. comm.)).
60 S.J. Fraley & J.W. Simmons, An Assessment of Selected Rare Mussel Populations in Western North Carolina
Following Extraordinary Floods of September 2004, N.C. Wildlife Res. Comm'n (2006) (Attachment C) ("[T]he
downstream distribution of Appalachian elktoe in the Pigeon River ends abruptly at Canton where habitat becomes
unsuitable due to a small impoundment and physico-chemical impacts from point and non -point sources.").
61 Letter from Cameron Ingram, Executive Director of N.C. Wildlife Res. Comm'n, on NPDES Permit NC0000272
Renewal, to Sergei Chernikov, N.C. Div. of Water Res. (Mar. 19, 2021).
62 Id.
63 BIP at 86.
64Id. at 87.
65 Id.
66 Id.
67 Id.
66 Id.
69 Id.
11

sampling, even though the BIP recognized that winter is a time of year when "thermal effluent
could provide a warm thermal refuge for Corbicula."70
In short, Blue Ridge Paper's own BIP study demonstrated that: (1) indigenous and rare
mussel species are extirpated below the mill but still persist in the cooler waters above the mill;
and (2) thermally tolerant, non-native Asiatic clams have expanded into the trophic level vacated
by these native species below the mill, but have stopped their upstream expansion past the mill
into colder waters where native mussels are present. Unless DEQ is prepared to recognize an
invasive, thermally tolerant clam as part of a "balanced, indigenous community" in a cold
mountain river, Blue Ridge Paper cannot meet its burden to show that the "cumulative impact of
its thermal discharge together with all other significant impacts on the species affected, will
assure the protection and propagation of a balanced indigenous community of shellfish." 40
C.F.R. § 125.73(a) (emphasis added).
b. Crayfish
Crayfish are "keystone species" in riverine food webs because they serve as important
decomposers of organic material and are a critical food resource for numerous predators.71 The
BIP study agreed that crayfish are "important components of the overall aquatic communit[y]" in
the Pigeon.72 Yet BIP sampling only turned up small numbers of four crayfish species; and in
North Carolina, the only species found in the Pigeon River downstream of the mill was the non-
native White River crayfisha species more typically found in sloughs, swamps, and sluggish
lowland streams.73
The BIP study supplemented these findings by incorporating data from a 2010 baseline
crayfish survey of the Pigeon River and its tributaries conducted by scientist David Dunn.74 Over
the course of eight months, Dunn found 1,320 crayfish specimens representing seven species
across numerous sampling sites, including nine Pigeon River tributaries, the mainstem of the
Pigeon upstream of the mill, the bypass reach downstream of Walters Dam, and the Tennessee
portion of the river.75 But no crayfish were found in the thermally affected reach below the
mill.76 Dunn speculated that one possible reason for this could be that the 2007 drought "caused
paper mill effluents to concentrate in the river," which "could have created uninhabitable water
quality conditions for crayfish to thrive directly downstream of the mill."77
70 Id.
71 Dunn, supra note 35, at 2; id. at 6 ("[C]rayfish are vital to aquatic ecosystem stability.").
72 BIP at 50.
73 Id. at 89.
74Id. at 88.
75 Dunn, supra note 35, at v.
76 Id. at 29-30.
77 Id. at 30.
12

Although the BIP study acknowledged these results, it opined that "thermal mortality is
unlikely to be the cause of lack of crayfish in the mainstem Pigeon River" for two reasons.78
First, limited data on upper lethal temperatures for adult crayfish suggest temperatures on the
mainstem of the Pigeon would be unlikely to kill crayfish outright.79 Second, Dunn suggested
crayfish were more likely escaping increased salinity and conductivity in the mainstem during
the drought than heightened temperatures.80
These explanations are insufficient for several reasons. To start, the BIP itself admitted
that several species of adult crayfish show significant mortality between 24 °C and 33 °C—
temperatures regularly reached below the Mill. 81 The BIP also acknowledged that juveniles and
molting crayfish "may be [even] less tolerant of elevated temperature."82 But even if these
temperatures did not cause direct mortality, the BIP agreed that "temperatures above [those]
preferred" by native crayfish may explain their absence below the mill.83 It is irrelevant whether
these crayfish were killed or moved to escape uncomfortably high temperatures, because the
effect on the ecosystem —the loss of important keystone species —is the same. EPA agrees,
stating in guidance documents that "a basis for denial [of a § 316(a) demonstration] exists if
important fish, shellfish, or wildlife are thermally excluded from the use of the habitat. ,84
Finally, Dunn's speculations about what element of the mill's concentrated effluent forced
crayfish to flee are just that —speculations. The BIP cited no additional surveys that have
attempted to test Dunn's hypothesis. Pointing to untested speculations does not satisfy Blue
Ridge Paper's burden to show its thermal variance will protect crayfish.
Ultimately, the BIP study opined that "[t]oo few crayfish were collected [by BIP
researchers] to speculate about protection and sustainability" of crayfish below the mill.85 But
then the BIP turned around and did just that, finding that the "cumulative impact of its thermal
discharge together with all other significant impacts on the species affected, will assure the
protection and propagation of a balanced indigenous community of shellfish" —including
crayfish.86 If the BIP supposedly lacked the data to draw any conclusions about crayfish, it could
not affirmatively find crayfish will be protected.
In fact, plenty of data exists to demonstrate the opposite conclusion: that native, cooler -
water crayfish have been extirpated and replaced by a thermally tolerant, non-native, swamp -
dwelling crayfish. Though BIP researchers did not find many crayfish, they did incorporate the
findings of Dunn, who found over 1,300 specimens. Yet Dunn found no crayfish below the mill,
78 BIP at 90 (emphasis added).
79 Id. at 89-90.
so Id. at 8.
81 Id. at 89-90.
82 Id. at 90.
83 Id. (emphasis added).
81 EPA Guidance Manual, supra note 47, at 26 (emphasis added).
85 BIP at 90.
86 Id. at 94.
13

which he blamed in part on the mill's discharge. Therefore, the BIP cannot conclude that the
crayfish community is "similar to what would have been there without the thermal discharge."
This conclusion is arbitrary, capricious, and unsupported by the record.
c. Salamanders
In many headwater watersheds, salamanders, not fish, dominate the vertebrate
community.87 For example, in some streams rare eastern hellbenders—which can weigh up to
2.2 kg —"may act as apex predators" that "exhibit top -down control of aquatic community
structure."88 Though ecologically critical, salamanders are very sensitive to changes in water
quality, including temperature shifts.89 Stream temperature has been found to limit salamander
occupancy in the Southeast.90
The BIP study did not sample for salamanders, but did incorporate findings from a 2009
baseline survey of stream salamander species in the Pigeon River basin conducted by scientist
Nikki Maxwell.91 Maxwell surveyed twenty sites in the basin, including four mainstem sites
above the mill and four below.92 No salamanders were found at any of the four mainstem sites
below the mill.93 Five different species of stream salamanders were captured elsewhere, with
mean abundance peaking in the Pigeon River above the mill and in Big Creek.94
Maxwell's analyses revealed that poor water quality more likely explained the absence of
salamanders below the mill than habitat availability.9' For example, Maxwell determined that
adequate habitat for the rare eastern hellbender existed below the mill, but water quality issues
including high water temperatures, increased salinity, and conductivity"potentially limited
[its] use" for hellbenders and other native salamanders.96
The BIP study recognized that salamanders "appear to be missing from the Pigeon River
downstream of the Mill" but suggested "it seems unlikely" that this is due to thermal stress.97 As
support, the BIP cited literature on temperature tolerance for several salamander species
87 Robert D. Davie and Hartwell H. Welsh, Jr., On the Ecological Roles of Salamanders, 35 Ann. Rev. Ecol. Evol.
Syst. 405 (2004) (Attachment Q.
" Ashley E. Yaun, Trophic Ecology of an Imperiled Giant Salamander (Cryptobranchus a. alleganiensis) in
Southern Appalachian Streams (2019) (unpublished master's thesis, Appalachian State University) (Attachment Q.
89 Dunn, supra note 35, at 39.
90 Evan H. Campbell Grant, Amber N. M. Wiewel, & Karen C. Rice, Stream -Water Temperature Limits Occupancy
of Salamanders in Mid -Atlantic Protected Areas, 48 J. of Herpetology 45, (2014) (Attachment Q.
91 BIP at 90.
92 Maxwell, supra note 34, at 17, 27.
93 Id.
94 Id. at 27.
95 Id. at 36.
96 Id. at v, 39-43.
97 BIP at 90-91.
14

suggesting that individuals can acclimate to a range of warmer temperatures between 31 °C and
41 oC.9s
This conclusion is incorrect for four primary reasons. First, data on the temperatures that
cause direct mortality does not address the sublethal effects of high temperatures, such as
whether salamanders may be forced to move to cooler -water refugia. Second, only one of the
eight supposedly temperature -tolerant species cited by the BIP (Desmognathus
quadramaculatus) was found in the Pigeon River basin by Maxwell.99 The thermal tolerances of
the other salamanders actually found in the Pigeon may be much different than the focal species
of the cited literature. For example, optimum temperatures for the cold -water -loving hellbender
range between 9.8 and 22.5 0C '00 Third, all of the studies the BIP cited are acclimation studies,
meaning the salamanders were allowed to adjust to warmer temperatures over time. Nothing in
the BIP suggested this is the case for salamanders —if any are present —in the Pigeon below the
mill. Finally, the BIP study acknowledged that "Critical Thermal Maximums" for salamanders
are lower in winter but did not address how this may further impact species in the Pigeon.101
As with the other biotic categories discussed above, the BIP conclusion regarding
salamanders contradicted its own research. The BIP acknowledged salamanders exist upstream
of the mill but are completely extirpated or absent below it, perhaps in part due to high
temperatures. The BIP nonetheless concluded that the biotic community below the mill is
"similar to what would have been there without the thermal discharge."102 This conclusion is
arbitrary, capricious, and unsupported by the record.
d. Riverweed
The rooted aquatic plant Podostemum ceratophyllum (hornleaf riverweed) "serve[s] as
important structure for other members of the aquatic community" in the Pigeon River basin.103
This "habitat former" produces a thick mat and long stems that have been "repeatedly
demonstrated to be an important substrate for promoting benthic invertebrate biomass,
abundance, and species richness ... and to positively influence the abundance of several fish
species, including the banded darter."104 Podostemum is sensitive to high temperatures, however,
with a "reported upper limit of 30 °C reported in the literature." 105
9s Id.
99 Compare id. at 90 (noting this species had a critical thermal maximum of 31.4 'C—a temperature below the
monthly average maximum allowed on the mainstem in the summer), with Maxwell, supra note 34, at 27.
10' M.A. Nickerson & C.E. Mays, The Hellbenders: North American "Giant Salamanders" (1973) (Attachment C);
S. Conor Keitzer, Thomas K. Pauley, & Chris L. Burcher, Stream Characteristics Associated with Site Occupancy
by the Eastern Hellbender, Cryptobranchus alleganiensis alleganiensis, in Southern West Virginia, 20 Ne.
Naturalist 666 (2013) (Attachment Q.
10' BIP at 90.
102 Id. at 94.
101Id. at51.
104 Id. at 91.
105 Id. at 92.
15

The BIP study noted the presence or absence of Podostemum while sampling for fish and
macroinvertebrates. The plant was found at three of four reference stations upstream of the mill
and two of three stations in the Pigeon River in Tennessee.106 However, no Podostemum was
found "at all in the thermally affected reach between the Mill and Waterville Reservoir."107
The BIP discounted these results by suggesting temperature "does not appear to be a
limiting factor except in the reach nearest the Mill, where temperatures in summer can exceed
the reported upper limit of 30 °C."108 Instead, the BIP concluded the aquatic plant's "low
dispersal ability ... combined with the Pigeon River's stresses of flooding in 2004 and drought
in 2007-2008, may be limiting its ability to recolonize the thermally affected reach after a history
of pollution."log
These conclusions are flawed. Flooding and drought conditions affected the entire region,
not just the thermally affected sites below the mill. In spite of these conditions, Podostemum
managed to persist above the mill and below Waterville Lake, which suggests something more
than flooding and drought are responsible for the lack of riverweed below the mill. In addition,
the fact that temperature is a limiting factor in the "reach nearest the Mill" is still a problem.
Between 2005 and 2009, temperatures at PRM 62.9—below the "mixing zone" —exceeded 30
°C on sixty-three different days.' 10 Blue Ridge Paper cannot simply drop this stretch of the river
from the BIP analysis and ignore the probable effects of temperature on a thermally sensitive
aquatic plant that serves as an important habitat former for other aquatic biota.
Yet again, the BIP recognized that a crucial species is completely extirpated or absent
below the mill, at least in part due to high temperatures, but nonetheless concluded that the biotic
community below the mill is "similar to what would have been there without the thermal
discharge.""' This conclusion is arbitrary, capricious, and unsupported by the record.
Blue Ridge Paper acknowledges it must demonstrate that "all trophic levels present in the
unaffected portion of the river were present in the heat -affected portions."112 Yet the BIP study
showed that crucial biotic groups —including mussels, crayfish, salamanders, and the habitat -
forming Podostemum—are all missing from the thermally affected reach. Though Blue Ridge
Paper advanced various speculative explanations, none satisfy its burden to show that "the
cumulative impact of its thermal discharge together with all other significant impacts on the
species affected, will assure the protection and propagation of a balanced indigenous
106 Id. Riverweed was also found at both stations in the Swannanoa River, a reference for the study. Id.
107 Id.
108 Id.
109 Id
11' Blue Ridge Paper Products, Pigeon River Temperatures Jan. 2005 — Dec. 2009 (Attachment Q.
"' BIP at 94.
112 Id. at 46 (emphasis added).
16

community" of shellfish and other wildlife. 40 C.F.R. § 125.73(a) (emphasis added). DEQ's
reliance on this erroneous assessment is therefore arbitrary and capricious.
2. The RIP study ignored substantial differences between upstream and
downstream populations of fish and macroinvertebrates.
Under the Clean Water Act, a Section 316(a) demonstration must assure the protection of
both a "balanced" and "indigenous" population. Such a community "may include historically
non-native species introduced in connection with a program of wildlife management and species
whose presence or abundance results from substantial, irreversible environmental
modifications." 40 C.F.R. § 125.71(c) (emphasis added). However, this does not mean that
species attributable to a thermal variance imposed through § 316(a) may be considered part of a
balanced, indigenous population. Id. In other words, "prior habitation by a pollution -tolerant
community" does not make that community "indigenous."113 As Blue Ridge Paper recognizes,
the "balanced, indigenous population" of fish, shellfish, and wildlife contemplated by the Clean
Water Act is the population that exists absent the impacts of the applicant's "thermal discharge
and other sources of pollution."' 14
The BIP study ultimately concluded that the biotic community at sites below the mill is
"reasonably close to what would be expected at these sites without the influence of the thermal
discharge."15 However, the RIP study's own data demonstrate that fish and macroinvertebrates
are detrimentally impacted by the mill's thermal effluent, acting in concert with other significant
impacts.
a. Fish
In the absence of the mill's thermal effluent, the Pigeon River below the mill would be a
cold -water river.16 Yet the BIP study showed that fish communities downstream of the mill are
composed of species that tolerate higher temperatures than those upstream.
To start, the study noted that the distribution of most fish species sampled in the Pigeon
River "followed one of five well-defined spatial patterns."17 This distribution pattern included
one group that was "restricted to or noticeably more abundant upstream of the Canton Mill" and
another that was "most abundant" between the mill and Waterville Lake. "g Species that were
"much more abundant" upstream of the mill included warmouth, mirror shiner, saffon shiner,
and mottled sculpin.19 As the study recognized, these "four species more common upstream of
13 Id. at 19.
114 Id. at 20.
15 Id. at 57.
116 See Bartlett, supra note 1.
117 BIP App'x B at 56.
"$ Id. at 56.
119 Id. at 57. The BIP study also claims a pollution -tolerant species —green sunfish —was "much more abundant"
upstream of the mill. Id. at 57. This categorization is likely a mistake. Only six green sunfish were found during the
entire study period. Id. at 51. One was found above the mill, and five were found at a single station in Tennessee. Id.
Given that green sunfish were five times more abundant below Waterville Lake than anywhere else, this species
17

the mill ... are predominantly cool water forms."120 Species that were "restricted to or much
more abundant" in the reach downstream of the mill included common carp, white sucker, brown
bullhead, bluegill, largemouth bass, yellow perch, flathead catfish, and smallmouth redhorse.121
As the study acknowledged, these species respond well to greater food availability and generally
"prefer warm water" and therefore "their higher abundance in the middle reaches is probably the
result of more food being available and warmer temperatures."122
Some species, like the thermally tolerant redbreast sunfish and pollution -intolerant rock
bass, were found both above and below the mill. However, redbreast sunfish outnumbered rock
bass by a 5.7 to I ratio below the mill, while rock bass outnumbered redbreast sunfish by a 2 to I
ratio above the mill.123 In terms of percentage of total catch, redbreast sunfish comprised 33.5%
of all fish caught in the thermally affected region and only around 5% of the total catch in the
four reference sites above the mill.124
The BIP study acknowledged that together these results show that "the fish community in
the North Carolina reach downstream of the Mill has more characteristics of a warm -water fish
community than does the river upstream of the Mill."125 But the BIP study blamed much of this
disparity on the "physical nature of the river between the Mill and Waterville Reservoir."126
Alternately, the BIP suggested that some of these differences are the result of upstream and
downstream barriers to movement —namely the small impoundment upstream of the mill.127
Because of this barrier, some of the cold -water species observed upstream may be "slow to
recolonize" the area below the mill.128 These assertions amount to unsupported speculation and
ignore the more obvious cause of distinctly different fish communities above and below
Canton —the mill's heated discharge.
First, the BIP study did not support the notion that the entire thermally affected reach
below the mill (PRM 63.3 to —42) is physically different from that above it. Specifically:
• From the confluence of the East and West Forks (PRM 69.5), the Pigeon River enters a
"clearly distinct" "Broad Basins" subregion, which "persists for approximately 20 miles
until about the confluence with Fines Creek (PRM 42.7)."129 Therefore, every thermally
should likely have been categorized as "restricted to or noticeably more abundant downstream of Waterville Lake."
Id. at 56.
120 Id. at 58.
121 Id. at 57. A few pollution -intolerant darters and shiners were also "restricted to or much more abundant" below
the mill. Id. This is unsurprising, given these species were reintroduced in this stretch only. Id.
122 Id. at 58.
123 BIP at 65.
124 See BIP App'x B at 51.
125 BIP at 57.
126 Id.
127 Id. at 66.
128 Id.
129 Id. at 31.
IN

affected biological sampling site falls within the same geographic subregion as two of the
four upstream sites.
• The "substrate in much of the river is dominated by cobble, gravel, and sand with
interspersed larger boulders and bedrock," with silt only becoming "more prevalent in the
low -gradient reach near Clyde" (PRM 59-55.5). "' In other words, the four to nine miles
of river below the mill have substrate comparable —if not functionally identical —to sites
above the mill.
• The Pigeon's average change in elevation along a stretch extending several miles below
the mill (4.0 feet per mile) is also similar to the gradient just upstream of the mill (5.0 feet
per mile).131
Second, the study's speculations regarding the effect of the impoundment miss the point.
The governing regulation is concerned with "the cumulative impact of its thermal discharge
together with all other significant impacts on the species affected," including the impoundment.
40 C.F.R. § 125.73(a) (emphasis added). Noting that the impoundment may contribute to an
imbalanced community did not satisfy Blue Ridge Paper's burden to demonstrate that its thermal
discharge, in combination with all other significant factors, assures a balanced indigenous
community. In fact, the BIP's observation that cold -water species still need to "recolonize" the
area below the mill showed that the downstream fish community is not "similar to what would
have been there without the thermal discharge. ,132 Therefore, Blue Ridge Paper's Section 316(a)
demonstration necessarily fails.
b. Macroinvertebrates
In addition to reshaping the downstream fish community, the mill's thermal discharge has
also altered the composition of aquatic macroinvertebrates in the Pigeon. These aquatic insects
are reliable indicators of stream health, as pollution tolerance varies among different
macroinvertebrate taxa. The RIP study found that macroinvertebrates "were present and diverse
in all study sites, both thermally affected and reference," and that "[t]otal taxa numbers in the six
Pigeon River basin reference sites were similar to the nine thermally affected sites."133 What the
BIP neglected to mention is that there was a significant difference in which taxa were found
above the mill and which were found below it.
To assess how similar macroinvertebrate communities were to each other, the study used
the North Carolina Biotic Index ("NCBI") and the Ephemeroptera + Plecoptera + Trichoptera
taxa richness index ("EPT Index").134 The former calculates the "relative tolerance of the benthic
community to the presence of general stressors, with lower values indicating more pristine
conditions and higher values indicating stress."13s The latter calculates the relative tolerance for
"Old. at 30.
131 Id
132 Id. at 94.
133 Id. at 64 (emphasis added).
134 BIP App'x B at 22.
13' 2016 Benthic SOP, supra note 29, at 19.
19

just the portion of the community represented by the insect orders Ephemeroptera, Plecoptera,
and Trichoptera.13' These indices were combined to create final bioclassifications for each
sampling site (Excellent, Good, Good -Fair, Fair, or Poor).117
Results showed significant community differences between upstream and downstream.
As shown iu the table below, NCBI bioclassifications were "Good" immediately above the mill,
"Fair" in the five sites immediately below the mill, "Good -Fair" in the next three downstream
sites, and then "Good" once more at the N.C. station farthest downstream from the mi11.138 Final
bioclassifications were "Fair" to "Excellent" above the mill, "Fair" in the five stations directly
below the mill, and "Fair" to "Good -Fair" in the last four North Carolina sites.139 On average,
biotic index scores for the four upstream stations were 4.37 ("Good") while the nine thermally
affected sites averaged 5.79 ("Fair"). The worst score on the river was directly below the mill.140
Pigeon River Upstream of Mill
Pigeon River Below Mill to Waterville Reservoir
PRM EF
WF
69.5
64.5
63.0
61.0
59.0
57.7
55.5
54.5
52.3
48.2
45.3
NCBI 3.88
5.05
4.39
4.16
6. 0
6.44
5.97
6.04
6.12
5.42
5.35
5.42
4.69
NCBI xcellent
Classification
Good-
Fair
Good
Good
Fair
F@ir
Fair
Fair
Fair
Good-
Fair
Good-
Fair
Good-
Fair
Good
Overall xcell
Classification
Fair
Good
Good-
Fair
Fair
Fair
Fair
Fair
Fair
Good-
Fair
Good-
Fair
Fair
Good -
Fair
This pattern of more pollution -tolerant macroinvertebrate taxa below the mill's thermal
discharge matches other recent assessments in the Pigeon River. Recent benthos surveys
conducted by DEQ in 2017 classified a stretch downstream of the mill near Clyde as "Fair" on
the EPT index, explaining that "high water temperatures and a high specific conductance in -
stream" are "chronic problem[s] at this site and a result of upstream effluent" from the mill.141
As a result, the river below the mill is currently listed as "impaired" for benthic
macroinvertebrates on North Carolina's § 303(d) list from the discharge to a point six miles
downstream.142 In 2020, DEQ proposed expanding this impaired area even farther
downstream.143
136 Id
137 BIP App'x B at 22.
138 Id. at 37.
139 Id
140 Id. at 3 S.
141 N.C. Dep't of Envtl. Quality, Div. of Water Res., Benthos Site Details EB 257 (Pigeon River) [hereinafter "EB
257 Survey"] (Attachment Q.
142 N.C. Dep't of Envtl. Quality, 2018 NC Category5 Assessments '303(d) List'Final, https:l/files nc.gov/ncdeq/
Water%20Quality/PlaminWTMD11303d/201 S/2018-NC-303-d--List-Final.pdf.
143 See supra note 6.
20

The BIP study acknowledged that the "mill effluent [is] influencing downstream benthic
communities,"144 but downplayed the significance of the poor biotic scores below the mill. First
it dismissed the biotic index scores for the upstream reference areas as only "somewhat better on
average" than those in the thermally affected reach below the mill.141 Second, the study noted
that the biotic index analysis used thresholds "for mountain streams and it should be recognized
that many of the thermally affected stations are slowly moving, silty habitats unlike mountain
streams."146
These explanations are flawed for at least three reasons. First, the index scores for the
upstream sites were rated two categories higher, on average, than the downstream sites —a
statistically significant result that explains why sites below the mill are listed as impaired and
those above the mill are not. Second, Blue Ridge Paper does not dispute that the thermally
affected sites should be analyzed using DWR's mountain stream index thresholds.147 It cannot
disclaim DWR's index scoring system merely because it does not like the outcome. Third, as
explained above, the physical characteristics of the Pigeon at many of the thermally affected
samplings stations are not different than those above the mill.148 Thus, Blue Ridge Paper's
attempt to characterize the reach below the mill as "unlike [a] mountain stream[]" is belied by its
own data.149
In sum, the BIP study showed that pollution -tolerant macroinvertebrates are common
below the discharge, while pollution -intolerant species are found above it. These findings
directly contradict the claim that the downstream sites are reasonably "similar to what would
have been there without the thermal discharge" and other sources of pollution.150 DEQ's reliance
on this unfounded conclusion is arbitrary, capricious, and unsupported by the record.
3. The BIP study cannot avoid assessing the cumulative impacts of thermal
effluent together with "all other significant impacts" in the Pigeon River.
Blue Ridge Paper's thermal impacts cannot be considered in isolation. Instead, Blue
Ridge Paper must show that "the cumulative impact of its thermal discharge together with all
other significant impacts on the species affected, will assure the protection and propagation of a
balanced indigenous [population]." 40 C.F.R. § 17 (emphasis added). Though the BIP study
144 BIP App'x B at 39.
145 BIP at 64.
146 Id.
147 See BIP App'x B at 16.
141 See supra Part II.B.2.a.
149 Blue Ridge Paper provided no data to support its contention that waters are "slowly moving" below the mill. See
generally BIP. It also is not clear why mountain streams —especially polluted ones like the Pigeon River —cannot be
"silty." To the extent Blue Ridge Paper is suggesting that sediment pollution makes the Pigeon River unsuitable for
assessment using DEQ's mountain ecoregion thresholds, it is mistaken.
"Old. at 94.
21

recognized this obligation,"' its analysis reflected a fundamental misunderstanding of what the
law requires.
Instead of assessing the "cumulative impact" of the thermal discharge with "all other
significant impacts," the BIP assessed how "other pollutants ... might interact with warmer
temperatures to enhance detrimental effects."152 What this means is that the BIP only analyzed
whether higher temperatures make other pollutants more potent. For example, the BIP study
noted that "[t]emperature elevation should not affect the color" of the river nor the potency of
"individual toxicants" at the "exposure durations seen in the Pigeon River."153 But the object of
the BIP is not only to assess how temperature may enhance the toxicity of discrete pollutants
considered separately. Rather, the BIP must determine whether the elevated temperature,
together with "all other significant impacts," allows for a balanced, indigenous population.
The BIP study compounded this error by repeatedly assuming, without scientific support,
that pollutants discharged in quantities that do not exceed permit limits have no "interaction"
with temperature. For instance, the BIP noted that "chloroform is assumed to not interact
detrimentally with slightly elevated temperatures in the river" because chloroform limits are
based on EPA effluent guidelines.154 Similarly, the study "assumed that there would be little
interaction between slightly elevated temperature and chlorinated organic materials" because the
mill is already meeting federally mandated requirements for chlorinated organic compounds.155
Likewise, "it is assumed that [chlorinated phenolics] will not interact with slightly elevated
temperatures in the river" because the daily maximum limits in the permit are already lower than
federal requirements.156 These unsupported assumptions reveal no useful scientific findings
about the interactions between temperature and other pollutants..
The BIP study also erred by refusing to consider impacts from anything besides
discharged pollutants. For example, the BIP failed to analyze the cumulative impacts of the
thermal discharge together with "naturally severe conditions" like the 2007-2008 drought.117
During the summer of 2007, almost 8,500 fish were killed by high water temperatures below the
mill. Though the BIP recounted this event, it declined to consider how the mill's thermal effluent
contributed to the fish kill. Instead, it suggested that a "significant regional drought in 2007-2008
reduced stream flows in the Pigeon River to record lows and raised ambient river temperatures,
which resulted in a one -day kill of fish in the river immediately downstream of the discharge."15s
Because the mill's heated "discharge remained essentially constant" in temperature and volume,
151 Id. at 61.
152 Id. (emphasis added).
151 Id. at 62.
154 Id. at 63 (emphasis added).
155 Id. (emphasis added).
156 Id. (emphasis added).
157 Id. at 29.
151 Id. at 28.
22

and no permit limits effective at the time were violated, the BIP found the thermal discharge was
not to blame for the kill.159
This finding is contrary to law and common sense. Elsewhere, the BIP did not dispute
that the cumulative effect of the thermal effluent, together with the drought, low -flow conditions,
and hot weather combined to kill thousands of fish below the Mill. 160 The BIP's own analysis of
the kill noted that river temperatures upstream of the mill were 20.6 °C to 22.4 °C—well below
the thermal tolerances of the fish that were killed downstream.161 Below the mill, however, there
was "little (or possibly no) flow in the river other than the thermal discharge," which ranged
from 33.8 °C to 36.9 °C.162 These temperatures "were within the range that would be lethal to
many riverine fishes."163 Thus, while low flows and higher temperatures may have "contributed
to the fish kill,"164 the mill's heated effluent was unquestionably a but -for cause.
As this example illustrates, the BIP study did not assess how the mill's thermal effluent
contributed to past cumulative adverse impacts to species below the mill. Nor did the study
prospectively assess how the thermal discharge would interact with future droughts or natural
stressors to cumulatively impact aquatic communities below the mill. Because the BIP study
failed to adequately analyze cumulative impacts to species as required by federal regulations, it
cannot support the grant of a thermal variance.
4. The BIP study cannot rely on summer -only biological data or comparisons to
the dissimilar Swannanoa River, which both skewed the study's findings.
In addition to the defects described above, the BIP study suffered from two significant
design flaws that further undermine its conclusions. First, BIP researchers failed to sample
throughout the year to capture seasonal changes. Second, the study relied in part on an apples -to -
oranges comparison between the Pigeon and Swannanoa Rivers.
a. Summer -only sampling
EPA regulations require a balanced, indigenous population to have "the capacity to
sustain itself through cyclic seasonal changes." 40 C.F.R. § 125.71(c). EPA interprets this
provision to mean that "any additional thermal stress will not cause significant community
instability during times of natural extremes in environmental conditions."165 In practical terms,
this means that "[c]ommunity data should be collected during normal seasonal extremes as well
as during optimal seasonal conditions."166 "At a minimum," EPA recommends taking shellfish
159 See id. ("[D]eclining flows ... caused the abnormally high temperatures.").
160 See id. at 92.
161 BIP App'x D at 2-5.
162 Id. at 2-3.
163 Id. at 4.
164 Id. at 3.
165 EPA Objection Letter, supra note 44 (Attachment B).
166 Id. (emphasis added).
23

and macroinvertebrates samples "quarterly for one year,"167 while fish community samples
"shall be taken at monthly intervals to provide data representing seasonal and life stage habits
except during and immediately following periods of spawning when a more intensive sampling
effort should be provided."16s
Even when intensive sampling efforts like these are not feasible, the BIP study and EPA
both emphasize the importance of winter biota sampling for a Section 316(a) demonstration. For
example, EPA notes that the "distribution of the various life stages of fish is dependent upon
many factors including season," 169 which necessarily means that sampling in one season will
miss impacts to temporary community assemblages that vary from season to season. The BIP
study also recognized that some species are more vulnerable to temperature spikes in the
winter,170 while thermally tolerant invasive species like Corbicula often shelter in thermal
plumes during the cold season.171 In addition, because water flows are higher during winter, the
thermal plume mixes less readily with the river, meaning the plume's impacts can stretch even
further downstream.172
Several conservation groups alerted Blue Ridge Paper to these problems before RIP
research began.173 Specifically, they urged Blue Ridge Paper to sample biota at least twice to
present a more complete picture and to capture any seasonal dynamics. Blue Ridge Paper
rejected these recommendations and proceeded with a single late -summer sampling effort from
July to September 2012.174 According to the BIP, late -summer sampling sufficed because it
occurs at the end of the extreme warmest period when community instability might
be identified, and it allows identification of year -around survival and reproduction
by collecting juveniles of most species. Sampling through the year would be
redundant and constitute an unacceptable loss of aquatic life. Additionally, because
of higher river flows during winter and spring, field data collection in these periods
is more difficult and can risk field personnel safety.175
This explanation is insufficient. The BIP cannot claim that the biotic community below
the mill has "the capacity to sustain itself through cyclic seasonal changes" if it failed to study
those seasonal changes. 40 C.F.R. § 125.71(c) (emphasis added). A proper BIP must show that
167 EPA Guidance Manual, supra note 47, at 25.
161 Id. at 30.
169 Id
17' BIP at 90 (noting salamanders have lower "Critical Thermal Maximums" in winter).
171 Id. at 87 (noting "warm effluents can provide a thermal refuge for cold winters").
172 Id. at 43.
173 Letter from Austin D.J. Gerken, counsel for Western North Carolina Alliance (now MountainTrue) and Clean
Water for North Carolina to Chuck Cranford, DWQ Surface Water Protection Supervisor (Apr. 13, 2012)
(Attachment Q.
174 See BIP at 4 (noting that "stream temperatures are typically the warmest" during the summer and therefore
summer sampling is likely to capture "the most severe" biological impacts).
175 Id. at 47.
24

"any additional thermal stress will not cause significant community instability during times of
natural extremes" plural.176 Sampling during one natural extreme, such as the "extreme
warmest period," fails to capture dynamics during other extremes such as winter. When ambient
river temperatures are lower in winter, the mill's heated effluent has a more disruptive effect on
overall river temperatures. More importantly, heated effluent may allow the warm -water,
pollution -tolerant community identified by the BIP below the mill to persist and gain dominance
during the winter, inhibiting recolonization by cold -water indigenous species.
The BIP's concerns about redundancy and loss of aquatic life are also unfounded. The
BIP has no evidence to suggest that winter sampling is redundant, having failed to do it. And the
BIP's own study methods guard against unacceptable losses of aquatic life. Fish samples were
collected via electrofishing, which is generally non -lethal if conducted properly. All captured
fish "were held in water -filled tubs until sampling was completed, at which time [they were]
released."177 Collection practices for other biotic categories were also generally non -lethal:
crayfish were collected using "modified minnow traps, electroshocking, snorkeling and turning
rocks";178 mussels and riverweed were assessed by noting presence or absence only;179
periphyton were measured but not collected;180 and wildlife were simply "observed." 181
Collection is lethal to macroinvertebrates, but the BIP did not explain why adding one winter
sampling event would constitute an "unacceptable" loss of benthic macroinvertebrates. Nor did
the BIP weigh these one-time sampling losses at discrete locations against the threat posed by the
mill's continued discharges to the entire population of aquatic insects below Canton.
While scheduling sampling efforts to avoid risky field conditions is important, the BIP
did not attempt to demonstrate that higher river flows are present throughout the entirety of fall,
winter, and spring, such that they pose an unabating safety risk to personnel. Without such a
showing, Blue Ridge Paper cannot justify its failure to protect a balanced, indigenous community
year-round as required by law. The failure to capture these seasonal dynamics means the BIP's
conclusions are fundamentally flawed. DEQ cannot rely on this truncated study to justify its
thermal variance.
b. Swannanoa River
As the BIP study acknowledged, the purpose of the Section 316(a) demonstration is to
assess whether the current community "approximate[s] the biotic community that would have
been there without the thermal discharge and other sources of pollution."182 To that end, EPA
16 EPA Objection Letter, supra note 44(Attachment B) (emphasis added).
177 BIP App'x B at 20.
178 BIP at 36.
171 BIP App'x B at 77; BIP at 59.
1so BIP App'x B at 81.
181 Id. at 80.
112 BIP at 20.
25

has suggested that "it may be appropriate to use a nearby water body unaffected by the existing
thermal discharge as a reference area."183
The BIP study used two primary reference areas: four upstream sites on the Pigeon River
and two sites on the Swannanoa River. To justify selecting the latter, the BIP noted that the
Swannanoa has "comparable basin morphology and is part of the larger French Broad River
basin."184 In addition, the Swannanoa "has similar headwater elevation and gradient
characteristics as the Pigeon River, and has a similar pattern of land use and development."185
A closer look shows that the Swannanoa is not an appropriate reference river. To start,
the drainage basin of the Swannanoa River is 1/4 the size of that for the Pigeon River, and the
Swannanoa is much smaller than the Pigeon.18' Some sections of the Swannanoa, including a
section near Warren Wilson College where BIP sampling occurred, are listed as impaired for
benthos on the North Carolina Section 303(d) list.18' In addition, the Swannanoa sampling
locations are at a lower altitude than the Pigeon River sampling locations, which may explain in
part why sampling revealed that the Swannanoa is significantly warmer than the upper Pigeon.188
The BIP's reliance on the Swannanoa as a reference river undermined the conclusions of
the BIP study. The Upper French Broad River downstream of Rosman, or a suitable altitude
reach of the Nolichucky may be more appropriate for comparing aquatic life. However, even
using the Swannanoa as a reference site, the BIP still found that the thermal discharge negatively
affects the aquatic community below the mill.
The BIP study dismissed and discounted clear indicators that the thermal pollution from
the mill has altered, and will continue to dramatically alter, the aquatic communities in the
Pigeon River. Based on the record before the agency, a balanced and indigenous population is
not present. Greenlighting a continued thermal variance will only perpetuate its absence.
Furthermore, neither the BIP study nor any other permit materials make the other
required showing that North Carolina's standard temperature limits are "more stringent than
necessary" to protect a balanced, indigenous population. See 33 U.S.C. § 1326; 40 C.F.R. §
125.73(a) (requiring the applicant to demonstrate that water quality standards are more stringent
than necessary). The thermal variance cannot be granted on the current record.
183 EPA Objection Letter, supra note 44 (Attachment B).
114BIP at41.
185 Id.
116 N.C. Dep't of Env't & Nat. Res., Div. of Water Quality, French Broad River Basinwide Water Quality Plan
(2011).
187 See supra note 5.
188 See BIP App'x B at 84 (noting that while the four upstream sites on the Pigeon averaged around 20.9 °C, the two
Swannanoa sites averaged 23.1 'C—a difference of more than two full degrees).
26

C. DEQ's Draft Permit does not protect the biological integrity of the Pigeon River.
The Pigeon River below the mill is designated as Class C waters, meaning that it must be
"suitable" for "aquatic life propagation, survival, and maintenance of biological integrity
(including fishing and fish); [and] wildlife." 15A N.C. Admin. Code 2B .0211(1)—(2).
"Biological integrity" is defined as "the ability of an aquatic ecosystem to support and maintain a
balanced and indigenous community of organisms having species composition, diversity,
population densities, and functional organization similar to that of reference conditions." Id. § 2B
.0202(12). For the reasons described above in Part II.B, there is no balanced and indigenous
community below the mill at least in part due to the mill's discharge. DEQ is well aware of this
imbalance, having listed the reach below the mill as impaired for benthos for decades. DEQ is
also aware that the mill's effluent is causing this impairment.189 However, DEQ has opted to
maintain the status quo and keep the same inadequate permit limits that allowed this imbalanced,
non-native community to proliferate. Because DEQ's Draft Permit "cannot reasonably ensure
compliance with applicable water quality standards," DEQ may not issue the permit as written.
Id. § 2H .0112(c)
D. The Draft Permit's relaxed testing schedule for fish -tissue dioxin fails to protect
Of Dublic health.
Dioxins are a class of chlorinated compounds that are recognized as carcinogens.190
Because dioxins are not biodegradable, they bio-accumulate in the food chain, meaning that they
continue to "pile up in the fat tissue of animals and humans" long after they have been released
into the environment.191 Dioxins are also lipophilic: they are not soluble in water, but do bind
strongly to sediment and organic matter.192 For these reasons, dioxins are notoriously persistent
in the environment, even after discharges have ended.
Historically, the Canton paper mill discharged dioxins and furans as byproducts of its
chlorine bleaching process, contaminating the Pigeon River, Waterville Lake, and beyond. In the
late 1980s, elevated levels of dioxin were found in fish tissue throughout the lower Pigeon River,
triggering North Carolina and Tennessee to issue fish consumption advisories for all fish in the
river below the mill. In 1989, the mill made changes to its treatment of polluted effluent to
remove dioxin congeners. Since then, levels of dioxin and furan in the river have declined but
"' See EB 257 Survey, supra note Error! Bookmark not defined. (explaining that the poor water quality below the
mill is due in part to "high water temperatures and a high specific conductance in -stream" which are "chronic
problem[s] at this site and a result of upstream effluent" from the mill); see also supra note 39.
"' Agency for Toxic Substances & Disease Registry, Chlorinated Dibenzo p-dioxins (CDDs) (1999), https://www.
atsdr.cdc.gov/toxfaqs/tfasp?id=363&tid=63.
191 European Commission, Fact Sheet on Dioxin in Feed and Food (July 20, 2001), https:Hec.europa.eu/commission/
presscorner/detail/en/MEMO_01_270; U.S. EPA, Exposure Assessment Tools by Media —Aquatic Biota (Oct. 23,
2020) [hereinafter "EPA Exposure Assessment"], https://www.epa.gov/expobox/exposure-assessment-tools-media-
aquatic-biota.
192 Ohio River Valley Water Sanitation Commission, Dioxin in the Ohio River Basin (1997), http://www.orsanco.
org/wp-content/uploads/2016/09/finaldioxinreport.pdf, EPA Exposure Assessment, supra note 191 (noting dioxins
have "low solubility in water and exist mostly sorbed to particles").
27

have not been eliminated. Dioxin binds strongly to river sediments, so stopping use at the mill
did not eliminate dioxin in the Pigeon River.
Because of the persistent nature of dioxins, Blue Ridge Paper has been required to
conduct fish -tissue sampling as a condition of its NPDES permit for decades. Under the 2010
permit, for example, Blue Ridge Paper was required to conduct fish -tissue dioxin sampling
during the 1 st, 3rd, and 5th calendar year of the permit. During the most recent sampling effort in
2014, common carp fillets at one of the two sampling stations had dioxin levels of 9.619 parts
per trillion ("ppt")—more than double North Carolina's 4 ppt toxic equivalency ("TEQ") action
level to trigger a fish consumption advisory,193 and more than sixty-four times greater than
EPA's own risk -based consumption limit of 0.15 ppt for fish -tissue dioxin.194
When DEQ administratively extended the 2010 permit for another five years, fish -tissue
sampling was not continued, perhaps because of the way the original permit condition was
structured (instead of requiring testing every other year, it required testing on the 1 st, 3rd, and
5th years). DEQ made no effort to restructure the fish -sampling condition through a modification
to avoid a five-year gap in sampling during the extension period. Despite this seven-year testing
gap —and despite finding a TEQ exceedance the last time testing occurred—DEQ now proposes
reducing the frequency of fish -tissue sampling to only once per five-year permit period.195
DEQ attempts to justify this reduction in two ways. First, it speculates that the TEQ-
exceeding specimens found during the last round of testing in 2014 could either be "anomalies,
or could indicate that some fish are present in the population with relatively higher TEQ
values."196 Second, DEQ points to a high -volume dioxin sampling study conducted by EPA in
2014 concluding that "the most potent of congeners in the series, 2,3,7,8 — TCDD, was not
detected in dissolved samples at the reporting limit of 0. 00 12 parts per quadrillion at any
station."197 Neither rationale withstands scrutiny.
The speculation that the 2014 results are anomalous is baseless. To start, the procedures
followed by Blue Ridge Paper's hired consultants are designed to guard against "anomalous"
results. Multiple specimens of two different target species were collected using study methods
approved by DEQ.198 Fillets from each specimen were then combined into a "composite" sample
using EPA -approved procedures.199 Testing composite samples instead of individual specimens
reduces the chance that results will be skewed by individual fish with higher relative toxin loads.
"' Draft Fact Sheet at 4.
194 U.S. Envtl. Protection Agency, Guidance for Assessing Chemical Contaminant Data for Use in Fish Advisories
at 5-105 (2000), https://www.epa.gov/sites/production/files/2018-11/documents/guidance-assess-chemical-
contaminant-vol2-third-edition.pdf.
195 Draft Permit at 18 (requiring a fish -tissue analysis during the 2nd calendar year of the permit).
196 Draft Fact Sheet at 4.
197 Id. (emphasis added) (quoting U.S. EPA, Pigeon River Dioxin High Volume Sampling Report (2014) [hereinafter
"EPA Dioxin Report"] (Attachment C)).
198 Blue Ridge Paper Products Inc dba Evergreen Packaging, 2014 Dioxin in Fish Tissue Report NPDES NC
0000272 at 1 (Feb. 2, 2015) (Attachment C).
199 Id. at 15.

If these composite samples showed TEQ exceedances more than two times the state limit in
2014, then DEQ should not discount them.
DEQ's related hypothesis —that the 2014 tests "could indicate that some fish are present
in the population with relatively higher TEQ values" —would seem to be precisely the result the
testing is designed to detect. To the extent DEQ is suggesting that other, untested fish may have
had "relatively" lower TEQ values, it is engaging in speculation not supported by the 2014 test
itself. At any rate, the presence of dioxin at higher levels even in some fish is a reason to
continue testing fish tissue, especially in a river with known recreational uses.
DEQ's citation to EPA's 2014 high -volume dioxin sampling is also misleading. That
study conducted testing for numerous dioxin and furan congeners —not just the cited 2,3,7,8-
TCDDin both dissolved and particulate form at four different sites: one above the mill, one
several miles below, and two in Waterville Lake.200 Notably, sampling site PR02—the site
directly below the mill —had the highest particulate dioxin concentrations for every congener
tested in the study.201 Every congener identified at PR02 also exceeded EPA's reporting limit;
for example, particulate 2,3,7,8-TCDD was detected at a concentration of 4 ppt—nearly four
times the reporting limit of 1.2 ppt.202 The same pattern held true for furans; sampling site PR02
had the highest recorded particulate concentrations for nine out of ten furan congeners,
exceeding the reporting limit in each case.203 Total particulate values for tetra, penta, hexa, and
hepta dioxins and furans were also highest at PR02.204
In its discussion, EPA concluded that "the majority of the contaminants of interest appear
to be bound in solids greater than one micron, as particulate concentrations of dioxins and furans
were higher than dissolved concentrations, except for" one furan congener at the station
upstream of the mill ("PRO I") and at the lower end of Waterville Lake ("PR04").20' EPA also
noted that "[p]articulate concentrations for all analytes peaked at PR02, decreasing downstream
with concentrations at PR04 returning to levels comparable to those at PRO as particulates most
likely settled out of the water column."206
As these results make clear, the fact that dissolved levels of 2,3,7,8-TCDD were not
detected above the reporting limit at any station is only a fraction of the story. Particulate dioxins
and furans were much more prevalent in general, and found in much higher concentrations below
the mill. In fact, particulate concentrations below the mill exceeded reporting requirements in
200 EPA Dioxin Report, supra note 197, at 5-12.
201 Id. at 13-14.
202 Id. at 14 (results from the study were converted from pg/L, or parts per quadrillion, to parts per trillion).
203 Id. at 18.
204 Id. at 24.
205 Id. at 36.
206 Id.
29

almost every instance. And it is these particulate -bound dioxins that are largely responsible for
fish dioxin in the first place.207
Because dioxins and furans—especially particulate -bound congeners —are still very
much present in the Pigeon River watershed, DEQ would be remiss in reducing the frequency of
fish -tissue sampling to only once a permit term. If this schedule is adopted and implemented, by
the end of the permit term in 2026 Blue Ridge Paper will have conducted fish -tissue dioxin
sampling only once in twelve years, in an area where dioxin is known to be present. This level of
testing is insufficient to ensure the protection of public health and must be revised to require at
least the same amount of testing —every other year, for a total of three times per five-year permit
period —as the 2010 permit before it was administratively extended.
E. DEQ must develop and impose technology -based effluent limitations for
numerous pollutants.
DEQ may only issue an NPDES permit if it 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 NPDES permit. 40
C.F.R. § 125.3(a). A permittee must implement technology -based standards, even if doing so
goes beyond the level necessary to meet water quality standards.208 However, if technology -
based standards are insufficient to meet water quality standards, then dischargers must do
whatever more is necessary to satisfy the water quality standards, including imposing water -
quality -based effluent limitations.209
As a starting point, the required technology -based 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" ("BPJ") of permit writers when EPA has not issued an ELG specific to industry
discharges, see 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3(c)(2). 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. 40 C.F.R. § 125.3(c)(3). 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. See 15A N.C. Admin. Code 02B .0406(b)(3).
Here, EPA has developed ELGs for the Pulp, Paper, and Paperboard Point Source
Category. 40 C.F.R. § 430. This category describes ELGs for select pollutants, including
adsorbable organic halides, chloroform, dioxin, chlorinated phenolics, trichlorophenol,
pentachlorophenol, and total suspended solids. Id. §§ 430.22-24. However, the Pulp and Paper
category, originally promulgated in 1974, does not address numerous other pollutants discharged
207 Environmental Contaminants in Biota: Interpreting Tissue Concentrations at 109 (W. Nelson Beyer & James P.
Meador, eds., 2d ed. 2011) (Attachment Q.
201 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.
209 Id.
kro

by the Canton mill in 2021. In addition to pulp- and paper -related operations, for example, the
mill continues to rely on coal -burning for some of its power generation and is responsible for
processing Canton's domestic wastewater. The mill also likely has used forever chemicals in its
processes, based on the presence of those chemicals in seeps from the mill's old waste dumps.
In the Draft Permit, DEQ mistakenly limits its analysis of technology -based limits to only
those pollutants subject to the outdated ELG. For those pollutants not specified in the ELG, DEQ
skips straight to assessing the need for water -quality -based effluent limits. But both state and
federal law require DEQ to develop technology -based limits using its BPJ before evaluating the
need for water -quality -based effluent limits. See, e.g., 33 U.S.C. 1311(b) (requiring the
application of "any more stringent limitation" including water -quality -based limits if technology -
based limits are insufficient to protect water quality standards).
For example, DEQ lists many pollutants not covered by the ELG, including arsenic,
cadmium, chromium, copper, cyanide, fluoride, lead, mercury, molybdenum, nickel, selenium,
silver, and zinc. Instead of evaluating best available technology controls for these pollutants,
DEQ only asks whether these pollutants have the reasonable potential to violate water quality
standards.210 Ultimately, DEQ declines to impose numeric limits on most of these pollutants
after finding that they are unlikely "to cause a violation of the North Carolina stream
standard. ,211 But even if this is true, it does not give DEQ permission to forgo the development
of technology -based limits. Technology -based effluent limits set "the minimum level of control
that must be imposed" in an NPDES permit, even if they result in pollution levels that are stricter
than those required by state water quality standards. 40 C.F.R. § 125.3(a) (emphasis added).
Conducting a reasonable potential analysis before imposing technology -based limits flips the
Clean Water Act's permitting regime on its head.
DEQ must, at a minimum, go through the proper steps to develop technology -based
effluent limits for the mill's polluted discharges, including those pollutants DEQ subjected to a
reasonable potential analysis for compliance with water quality standards. As discussed below
under Part II.H, DEQ should extend this analysis to any forever chemicals present in the mill's
discharges or treatment systems.
F. The Draft Permit lacks sufficiently strict conditions to protect the Pigeon River
from colored and other wastes.
As Class C waters, the Pigeon River below the mill must be "suitable" for "aquatic life
propagation, survival, and maintenance of biological integrity (including fishing and fish);
wildlife; secondary contact recreation ... [and] agriculture." 15A N.C. Admin. Code 2B
.0211(1)—(2). To protect those uses, the EMC has set water quality criteria for multiple
pollutants, including "colored or other wastes." Id. § 2B .0211(12). This narrative water quality
standard allows such wastes in "only such amounts as shall not render the waters injurious to
public health, secondary recreation, or to aquatic life and wildlife, or adversely affect the
210 Draft Fact Sheet at 6.
211 Id.
31

palatability of fish, aesthetic quality, or impair the waters for any designated uses." Id. (emphasis
added).
The Clean Water Act requires NPDES permits to include "any more stringent limitation"
necessary to meet "water quality standards." 33 U.S.C. § 1311(b)(1)(C). If application of
minimum technology -based effluent limits leaves a "reasonable potential" that water quality
standards will be violated, then an NPDES permit must impose additional water -quality -based
effluent limits to ensure water quality standards are not violated. 40 CFR § 122.44(d)(1)(i); see
also 15A N.C. Admin. Code 2H .0112(c) (requiring NPDES permits to "ensure compliance with
applicable water quality standards").
DEQ's Draft Permit proposes the following limits on Blue Ridge Paper's discharge of
colored waste: an annual average color limit of 36,000 lbs/day, a monthly average color limit of
52,000 lbs/day, and a daily maximum color limit of 105,250 lbs/day.212 These are the same limits
implemented by the 2010 permit.213 The primary difference is that in 2010, DEQ found those
limits would not ensure compliance with North Carolina's narrative water quality standards, and
therefore found those discharge levels required a variance. In 2020, DEQ reaches the opposite
conclusion and suggests removing the variance requirement and making no further progress on
color reductions. DEQ's approach is problematic because it omits consideration of current color -
reduction technologies and focuses too narrowly on only one component of the narrative water
quality standard.
1. The agency fails to evaluate available technologies for further reductions on
colored discharges.
As described above, technology -based effluent limitations set the minimum level of
control required in every NPDES permit. 40 C.F.R. § 125.3(a). For non -conventional pollutants
like "colored or other wastes," these limits must be based on "application of the best available
technology economically achievable." 33 U.S.C. § 1311(b)(2)(F).
Here, DEQ does not attempt to determine what color -reduction technologies are currently
available. Instead, it copies and pastes its work from more than a decade ago, noting that its
proposed color limits "were established in accordance with the Technology Review
Workgroup['s ("TRW's") 2008] recommendations for the 2010 permit renewal. ,214 However,
these recommendations were intended to apply to the 2010 permit, not a subsequent permit
212 Draft Permit at 4-5.
211 Compare N.C. Dep't of Env't & Nat. Res., NPDES Permit No. NC0000272 Blue Ridge Paper Produces Inc. at 6
(May 25, 2010) [hereinafter "2010 Permit"], with Draft Permit at 4-5. The 2010 permit set an initial annual average
limit of 38,020 lbs/day, but further required that four years after the permit became effective "the average annual
discharge of true color for each calendar year shall not exceed 32,000-36,000 pounds per day." 2010 Permit at 6.
214 Draft Fact Sheet at 6 (emphasis added). The TRW was originally created in 1997. Following a settlement
agreement, representatives of EPA, Tennessee, and North Carolina convened to form the TRW to analyze available
color -reduction technologies that could be used at the Canton mill. The group reconvened in 2007 to assess available
technologies for the forthcoming 2010 permit.
32

twelve years in the future.211 Moreover, the color limits proposed by the TRW in 2008 were
based on technology and costs in 2008—not 2020. Because these recommendations are twelve
years past their expiration date, DEQ may not rely on them to craft its current permit limits
without adequate explanation as to how they reflect current technology.216
Although DEQ's reasons for freezing the permit limits are flawed, so is the outcome. The
Clean Water Act and North Carolina state law require increasingly stringent permit limits over
time. See, e.g., 33 U.S.C. § 1251 (stating a motivating purpose of the Clean Water Act is the
"eliminat[ion]" of discharges of pollutants to jurisdictional waters). But the Draft Permit stalls
out progress on reductions in daily, monthly average, and annual average color permit limits
across the board. DEQ must assess the potential to achieve stricter color limits, as the TRW
and the Clean Water Act —intended.
2. DEQ advances a flawed, overly narrow interpretation of North Carolina's
narrative aesthetic water quality standard.
EPA and DEQ have previously interpreted North Carolina's narrative standard for
"colored and other wastes" and its reference to "aesthetic quality" to include meeting an in -
stream limit of 50 platinum -cobalt units ("PCUs") of true color per liter of water, although that
interpretation has not been advanced in any formal rulemaking.211 In the Draft Permit, DEQ now
proposes (1) removing Blue Ridge Paper's color variance based on the 50 PCU in -stream limit;
and (2) altering its interpretation of the color standard to prohibit monthly average true -color
levels in Blue Ridge Paper's discharge from exceeding the background (upstream) true -color
level by more than 50 PCU when the Pigeon River flow at Canton is greater than or equal to the
monthly 30Q2218 of 129 cubic feet per second.219
This new interpretation of North Carolina's narrative water quality standard is
fundamentally flawed in two ways. First, DEQ's narrow focus on a numeric true -color standard
fails to protect all aspects of "aesthetic quality," as required by state law. Though DEQ
repeatedly describes 15A N.C. Admin. Code 2B .0211(12) as just a "color standard," the text of
the regulation applies much more broadly to "colored or other wastes" that may not injure the
"aesthetic quality" of the receiving waterbody.220 Although "aesthetic quality" certainly
215 See Memorandum from U.S. EPA Technology Review Workgroup to N.C. Div. of Water Quality at 6 (Feb. 25,
2008) (recommending that by the end of the 2010 permit term, "the permit should require an effluent target range of
32,000 — 37,000 lbs/day as an annual average").
216 If necessary, DEQ could reconvene the TRW to assess whether technologies available in 2021 are superior to
those assessed in 2008 for purposes of developing current technology -based limits.
217 Draft Fact Sheet at 10-11.
21'Defined as the "minimum average flow for a period of 30 consecutive days that has an average recurrence of
once in two years." 15A N.C. Admin. Code 2B .0206(a)(5).
211 Draft Fact Sheet at 10-12; Draft Permit at 5.
22' DEQ's position seems to be that so long as Blue Ridge Paper's colored waste —and colored waste only —is not
injuring aesthetic quality, the narrative standards are being satisfied. This misses the point of the narrative standard,
which is to broadly protect "aesthetic quality" from "colored and other wastes," not just color. An example helps to
illustrate this distinction. Assume Blue Ridge Paper's effluent lacked any color at all, but gave off a rank odor,
created objectionable foam, and produced undesirable or nuisance aquatic life, such as swarms of stinging midges.
33

encompasses color, it also covers much more, including, but not limited to: presence of
undesirable or nuisance aquatic life, odor, foam, and other floating debris affecting an
individual's perception of the river or the palatability of fish.22' DEQ's attempt to boil "aesthetic
quality" down to a numeric shift in platinum -cobalt units necessarily fails to address these other
aesthetic properties.
Second, DEQ also fails to articulate why a monthly average A50 PCU standard is a
justifiable interpretation of North Carolina's narrative standard. A monthly average standard
could allow the mill to exceed the current 50 PCU in -stream standard for days at a time.
Therefore, the new interpretation substantially weakens North Carolina's narrative water quality
standards. Nor does it make sense. The color standard is meant to protect the aesthetic qualities
of the river but people do not experience aesthetic qualities as a "monthly average" —they
experience them in real time on a day-to-day basis.
DEQ provides scant support for this significant change. Instead of relying on the text of
the administrative code or its permitting experience to support this new interpretation, DEQ
largely relies on color studies and standards from other states. Specifically, DEQ points to
findings from a color study that established a A50 PCU limit on the Hiwassee River in Tennessee
and a color standard of A40 PCU in Maine. These comparisons are inappropriate.
The Tennessee PCU standard that DEQ cites was based on a 31-year-old study of a
specific watershed in which the study authors warned that "[i]t must be strongly emphasized that
the results of this study are extremely site -specific and should not be used to evaluate color limits
for other river systems."222 What's more, the current color limit on the Hiwassee is now a daily
limit of A40 PCU, as opposed to the monthly average limit of A50 PCU proposed by DEQ
here.223 This distinction is hugely important, as a monthly average standard permits Blue Ridge
Paper to far exceed the acceptable color differential noted in the Tennessee study —or currently
acceptable on the Hiwassee—for multiple days per month, so long as the monthly average color
differential does not exceed 50 PCU.
DEQ could not argue that this "other" waste product, colored or not, did not injure the aesthetic quality of the
Pigeon River in contravention of the State's narrative standards for Class C waters.
221 See U.S. Envtl. Protection Agency, Quality Criteria for Water at 17 (1986) (current recommended standard for
aesthetic quality), https://www.epa.gov/sites/production/files/2018-10/documents/quality-criteria-water-1986.pdf
The Draft Permit does state that "[t]here shall be no discharge of floating solids or visible foam in other than trace
amounts." Draft Permit at 5. This ambiguous requirement does not address all aspects of aesthetic quality and does
not create an enforceable permit standard for those aesthetic properties it does name.
222 A.M. Prestrude & E.L. Laws, Hiwassee River Study at 3 (Apr. 12, 1989) (emphasis added) (Attachment C). The
Tennessee study also relied on contemporaneous assessments of apparent color differential between sites to suggest
a range of acceptable color addition, rather than monthly average measurements of true color like DEQ. Apparent
color measurements assess water color without turbidity removal, while true color is defined as the color measured
in the absence of turbidity.
22' Tenn. Dep't of Env't & Conservation, Div. of Water Res., NPDES Permit No. TN0002356 for Resolute FP US
Inc. at 5 (June 27, 2018) (Attachment C) (noting the true color downstream of the discharge "must not be increased
no more than a daily maximum of 40 standard platinum -cobalt color units, as compared to an upstream control
point.").
M

The Maine color standard cited by DEQ is also inapposite for two reasons. First, it
requires individual waste dischargers not to increase the color of any water body by more than 20
PCU, not 40 PCU as implied by the Draft Fact Sheet.224 The A40 PCU standard applies to color
pollution "caused by all waste discharges to the water body," not just discharges from one
polluter like Blue Ridge Paper. Me. Stat. tit. 38 § 414-C(3) (emphasis added). Second, Maine's
A40 PCU standard is not a monthly average limit. See id. ("The total increase in color pollution
units caused by all waste discharges to the water body must be less than 40 color pollution
units."). Thus, like the Hiwassee, increases in color that might violate Maine's PCU standard
may be acceptable in the Pigeon for multiple days per month, so long as the monthly average
color differential does not exceed 50 PCU.
In sum, DEQ must evaluate compliance with the narrative aesthetic -quality standard by
assessing aesthetics beyond true -color shifts, consistent with the language and intent of the
standard. In addition, DEQ cannot rely on inapposite out-of-state standards to support its
monthly average limit. If DEQ insists on citing these out-of-state references, then it too must
craft a daily or instantaneous color -differential limit —not a monthly average limit.
G. DEQ must 'ul stify the use of a mixing zone, specify to which pollutants it applies,
and develop spatial limits.
A mixing zone is a "limited area or volume of water where initial dilution of a discharge
takes place and within which the water quality standards allow certain water quality criteria to be
exceeded. ,225 Mixing zones must be carefully limited in at least three different ways. First,
according to EPA, mixing zones generally must be tailored to specific "pollutant[s] of
concern."226 Second, mixing zones must be "appropriately limited in size."227 This requirement
helps guard against "disproportionately large" zones that "could potentially adversely impact the
productivity of the waterbody, and have unanticipated ecological consequences."228 Third,
mixing zones should be "located appropriately within the waterbody to provide a continuous
zone of passage that protects migrating, free-swimming, and drifting organisms."229
Because mixing zones must provide a continuous zone of passage around the mixing
area, they are not appropriate when an effluent —such as temperature —is "known to attract
biota. ,231 "Although most toxic pollutants elicit a neutral or avoidance response ... temperature
224 Compare Me. Stat. tit. 38 § 414-C(3), with Draft Fact Sheet at 12 (suggesting the permit's A50 PCU standard is
supported by Maine's "color limit of 40 PCU above the background").
225 Permit Writers' Manual, supra note 208, at § 6.2.5.2.
226 See id. at § 6.2.5.2 (requiring permit writes to "determine the maximum mixing zone size for the waterbody type,
pollutant of concern, and specific criterion being considered").
221 U.S. Envtl. Protection Agency, Technical Support Document for Water Quality -based Toxics Control at 2.2.2
(1991) [hereinafter "EPA Technical Support Document"], https://www3.cpa.gov/npdes/pubs/owmO264.pdf
228 Id. at § 2.2.2.
229 U.S. Envtl. Protection Agency, Water Quality Standards Handbook ch. 5 at 7 (2014), https://www.epa.gov/sites/
production/files/2014-09/documents/handbook-chapter5.pdf.
2" EPA Technical Support Document, supra note 227, at 10.
35

can be an attractive force and may counter an avoidance response to a particular pollutant."231 As
a result, "organisms would tend to stay in the mixing zone rather than passing through or around
it," meaning that even if a continuous zone of passage is designated, it "will not protect aquatic
life."232
The Draft Permit does not address these limitations and concerns for its new mixing
zone. It simply defines the mixing zone as the entire 0.4-mile stretch of river "between the
diffuser and the Fiberville Bridge."233 It does not specify which pollutants it applies to, nor does
it craft an appropriately sized mixing zone that leaves a designated zone of passage for aquatic
organisms.234 It also does not address the problems EPA identified with mixing zones containing
thermal effluent. The Draft Permit must be revised to correct these deficiencies.
The Draft Permit also must justify why a mixing zone is needed in the first place.
Presumably, DEQ crafted the mixing zone for the mill's thermal effluent. But Blue Ridge Paper
already applied for and is slated to receive a thermal variance which allows it to exceed North
Carolina's water temperature standards. Mixing zones are designed to allow permittees to exceed
the same standards in spatially delineated and localized ways that avoid acute impacts —not to
allow permittees to exceed the already relaxed standards found in a Section 316(a) variance. In
essence, DEQ's Draft Permit would allow Blue Ridge Paper to exceed water quality standards
(with the variance) and then exceed that exceedance (with a mixing zone designation). DEQ
must explain why this stacked authority to doubly exceed North Carolina's temperature standard
is justified.
H. DEQ must consider and evaluate any discharges of PFAS by the paper mill.
Per- and polyfluoroalkyl substances, or PFAS, are a group of man-made chemicals that
have been used in a range of manufacturing industries since the 1940s,235 particularly for their
ability to repel water and oil.236 The same properties that make them useful in manufacturing
applications render them persistent and mobile in the environment and the human body, and their
long-lasting effects have earned PFAS a reputation as "forever chemicals." Once discharged,
PFAS persist in rivers, streams, and sediment, migrate into groundwater and can enter drinking
water supplies. PFAS are now understood to present a danger to human and aquatic health.
231 Id.
232 Id.
233 Draft Permit at 21.
234 Although the BIP study opined that "zone of initial mixing for the Mill's thermal discharge provides a zone of
passage along the eastern side of the river for movement of fish and invertebrates," BIP at 60, this biological opinion
is not the same as an enforceable, spatially delineated permit condition.
235 U.S. Envtl. Protection Agency, Basic Information on PFAS [hereinafter "Basic PFAS Info"] (Attachment C).
236 Interstate Tech. Regulatory Council, Per- and Polyfluoroalkyl Substances (PFAS), Technical/Regulatory
Guidance at Sec. 2.5 (Sept. 2020) [hereinafter "ITRC Guidance"], https://pfas-I.itrcweb.org/wp-content/uploads/
2020/10/itrc pfas_techreg_sept_2020_508-l.pdf ("[U]nique physical and chemical properties of PFAS impart oil,
water, stain, and soil repellency ... to a range of products.").
W

In recent years, DEQ has gained experience dealing with the prevalence and persistence
of PFAS, including through an enforcement action against the Chemours chemical plant on the
Bladen-Cumberland county line for discharging GenX231 chemicals into the Cape Fear River
system.238 There, DEQ recognized the need to regulate the discharge of PFAS, which it
confirmed meet the definition of toxic substances under state law.239
The paper and packaging industry is a known consumer of PFAS, which are used to
improve the water-resistant properties of paper products. Neither the paper mill's 2010 permit
nor the Draft Permit renewal reflect any consideration of whether the paper mill uses and
discharges PFAS into the Pigeon. Blue Ridge Paper's application for a permit renewal, which is
itself more than seven years old, is silent on the potential discharge of PFAS.240 DEQ must
require the disclosure of any PFAS compounds historically or presently used and potentially
discharged by the mill and develop appropriate limits to control the discharges. The best strategy
for chemicals that are both toxic and persistent is to require technologies that ensure they not
discharged into waterways like the Pigeon in the first place.
1. Pulp and paper mills are a type of industry that uses and discharges PFAS.
The pulp and paper industry is a known consumer of PFAS.241 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, 242 or added externally as a surface coating for
packaging products.243 In addition to incorporation into manufactured products, fluoropolymers
are used on equipment and production processes for their non -corrosive properties, from pulp
mills and recovery operations to the paper machines themselves.244 EPA recognized in its PFAS
2" GenX refers to a technology used to make high-performance fluoropolymers without the use of perfluorooctanoic
acid ("PFOA"). E.g., Basic PFAS Info, supra note 235.
231 N.C. Dep't of Envtl. Quality, GenX Investigation, https:Hdeq.nc.gov/news/key-issues/genx-investigation (last
visited Apr. 12, 2021).
2" Amended Complaint, N.C. Dep't ofEnvtl. Quality v. Chemours, 17 CVS 580, 6-7 (N.C. Super. Ct. 2018)
[hereinafter "N.C. DEQ Amended Complaint"].
241 See Permit Application, supra note 15.
241 See Basic PFAS Info, supra note 235 (listing paper and packaging as known applications); ITRC Guidance,
supra note 236, at Table 2-4 (listing documented uses in paper and packaging sectors); 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).
242 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.").
243 See supra note 242; Andrew B. Lindstrom, Mark J. Strynar, and E. Laurence Libelo, Polyfluorinated
Compounds: Past, Present, and Future, 45 Envtl. Sci. & Tech. 7954 (2011) (Attachment C).
244 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).
37

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.245 Because
of the multiple applications of PFAS in the pulp and paper industry, DEQ should screen any
paper manufacturers with effluent discharges for potential discharges of PFAS.246 Canton's pulp
and paper mill is no exception.
Multiple PFAS-contamination events across the country are under investigation for their
links to paper mills. In Michigan, efforts are ongoing in addressing PFAS contamination near a
paper mill in the town of Parchment along the Kalamazoo River. Sampling by the state found high
levels of PFAS in the town's water supply and in nearby residential wells. The paper mill site,
idled since 2000, included a wastewater treatment system and industrial landfills where the mill
disposed of sludge from its treatment plant.247
In Maine, state regulators are investigating PFAS contamination that has spread into
residential wells around Fairfield.248 A recently filed lawsuit implicates sludge disposal from the
Somerset paper mill in Skowhegan as the source of PFAS.249 The state's investigation began in
2016, when a local dairy farmer learned his cows were producing PFAS-tainted milk after they
were pastured on lands where sludge from a paper mill and a municipality were spread as
fertilizer.210
In Norway, scientific researchers determined a factory that manufactured PFAS-coated
disposable paper products was responsible for contaminating an entire sediment bed throughout
Lake Tyrifjorden. Using source tracking methods, particularly fingerprinting contamination from
the factory's old landfill sites, the study identified the paper production facility "as a major PFAS
241 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_508 compliant_ l .pdf.
241 See, e.g., Mich. Dep't of Envtl. Quality, Recommended PFAS Screening & Evaluation Procedure for Industrial
Pretreatment Programs (IPPs) (2018) (Attachment C) (identifying paper and packaging manufacturers as possible
sources); National Chemicals Working Group of the Heads of EPAs Australia and New Zealand, PFAS National
Environmental Management Plan Version 2.0 (2020) (Attachment C) (noting pulp and paper mills use PFAS as
internal and external sizing agents and are associated with point sources of contamination).
241 Mich. Dep't of Env't, Great Lakes, and Energy, Michigan PFAS Action Response Team: Kalamazoo County,
Parchment, Crown Vantage Property, https://www.michigan.gov/pfasresponse/0,9038,7-365-86511_82704-479889-
-,00 html (last updated Apr. 20, 2020).
241 Me. Dep't of Envtl. Protection, Fairfield PFAS Investigation, https://www maine.gov/dep/spills/topics/pfas/
fairfield/index.html (last visited Apr. 12, 2021).
249 Christopher Burns, Maine Paper Mill Hit with Class -Action Lawsuit over Forever Chemical' Contamination,
Bangor Daily News (Mar. 8, 2021), https://bangordailyncws.com/2021/03/08/news/central-maine/maine-paper-mill-
hit-with-class-action-lawsuit-over-forever-chemical-contamination/; John Gardella, PFAS Paper Mill Lawsuit In
Maine Exposes Corporate Susceptibility, National Law Review (March 25, 2021), https://www.natlawreview.com/
article/pfas-paper-mill-lawsuit-maine-exposes-corporate-susceptibility.
2" Richard Valdmanis & Joshua Schneyer, The Curious Case of Tainted Milk from a Maine Dairy Farm, Reuters
(Mar. 19, 2019), https://www reuters.com/article/us-usa-dairy-chemicals-idUSKCNIROIAJ.
k:

hot spot source. ,211 The contamination persisted in sediment and biota, including fish species
like perch, even though surface water samples were near or below detection limits.252
As for the Pigeon, in a forthcoming study, researchers surveying for PFAS across
Western North Carolina tested the river below the mill's outfall for several different types of
PFAS. They also took surface water samples near some of the mill's old landfills, where
wastewater treatment sludge was disposed of historically. That sampling effort detected PFAS in
samples near the sludge landfills and just downstream of the mill's wastewater treatment outfall.
Given the known use of PFAS by the paper and packaging industry and early indications from
these results, DEQ must require a full investigation of the historical and present use of PFAS at
the Canton paper millincluding an evaluation of potential discharges to surface waterin this
NPDES permit renewal.
2. PFAS are harmful to human health and the environment.
PFAS are a threat to human health and the environment. Taking two of the commonly
studied PFAS as an example, perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonate
("PFOS") have been found to alter the development of fetuses and infants and cause kidney and
testicular cancer, liver malfunction, hypothyroidism, high cholesterol, ulcerative colitis, lower
birth weight and size, obesity, decreased immune response to vaccines, reduced hormone levels
and delayed puberty.253
In response to these health concerns, EPA has established a lifetime health advisory of
70 parts per trillion ("ppt") for the combined concentrations of PFOA and PFOS in drinking
water.214 In June 2018, the Agency for Toxic Substances and Disease Registry released an
updated Draft Toxicological Profile for PFOA, PFOS, and other PFAS. The report suggested
that many of the chemicals are more harmful than previously thought. For instance, the
minimum risk levels, or the amount of a chemical a person can eat, drink, or breathe each day
without a detectable risk to health, was determined to be only 11 ppt for PFOA, and 7 ppt for
PFOS.255 Epidemiological studies show that many of these same health outcomes result from
251 Hakon A. Langberg et al., Paper Product Production Identified as the Main Source of Per- and Polyfluoroalkyl
Substances (PFAS) in a Norwegian Lake: Source and Historic Emission Tracking, 273 Envtl. Pollution 116259
(2021) (Attachment C).
252 See id.
251 Arlene Blum et al., The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFASs), 123 Envtl. Health
Perspectives Al07 (2015) (Attachment C); U.S. Envtl. Protection Agency, Fact Sheet: PFOA & PFOS Drinking
Water Health Advisories at 2 (2016), https://www.epa.gov/sites/production/files/2016-06/documents/drinkingwater
healthadvisories_pfoa_pfos_updated_5.31.16.pdf.
254 U.S. Envtl. Protection Agency, Drinking Water Health Advisories for PFOA and PFOS, https://www.epa.gov/
ground-water-and-drinking-water/drinking-water-health-advisories-pfoa-and-pfos (last updated Feb. 18, 2021).
255 Cape Fear Public Utility Authority (CFPUA), CFPUA Statement on Recently Released DHHS Report (June 21,
2018), https://www.cfpua.org/CivicAlerts.aspx?AID=893&ARC=2004; see also ATSDR, Toxicological Profile for
Perfluoroalkyls, Draft for Public Comment (June 2018) [hereinafter "Draft 2018 Toxicological Profile for
Perfluoroalkyls"] (Attachment Q.
W

exposure to other PFAS.256 Given these harms, several states have acknowledged the dangers
of these compounds and have approved drinking water standards for various PFAS at 20 ppt
and lower.257
PFAS are also harmful to the environment. They resist breaking down in the
environment, can travel long distances, and bio-accumulate in organisms.258 PFAS have been
shown to harm fish,259 amphibians,260 mollusks,261 and other aquatic invertebrates262
256 Draft 2018 Toxicological Profile for Perfluoroalkyls, supra note 255, at 5-6, 25-26.
257 Press Release, Mich. Dep't of Env't, Great Lakes, and Energy, Michigan Adopts Strict PFAS in Drinking Water
Standards (July 22, 2020), https://www.michigan.gov/som/0,4669,7-192-47796-534660--,00.html#::text=The%20
Michigan%20Department%20of%20Environment,PFAS%20contamination%20in%20drinking%20water; N.Y.
Dep't of Health, NYS Drinking Water Standards for PFOA, PFOS and 1, 4-Dioxane (Sept. 2020), https://www.
health.ny.gov/environmental/water/drinking/docs/water_supplier_ fact_ sheet_ new _mcls.pdf; Annie Ropeik, N.H.
Approves Unprecedented Limits for PFAS Chemicals in Drinking Water, NHPR (July 18, 2019), https://www nhpr.
org/post/nh-approves-unprecedented-limits-pfas-chemicals-drinking-water#stream/0; Vt. Dep't of Envtl.
Conservation, PFAS & Drinking Water Information Page, https://dec.vermont.gov/water/drinking-water/pfas (last
visited Apr. 14, 2021); Press Release, Vt. Agency of Nat. Res., Agency of Natural Resources Initiates Rulemaking
Process to Adopt Maximum Contaminant Level for PFAS Compounds, https://anr.vennont.gov/content/agency-
natural-resources-initiates-rulemaking-process-adopt-maximum-contaminant-level-pfas (last visited Feb. 24, 2020);
N.J. Dep't of Envtl. Protection, Affirming National Leadership Role, New Jersey Publishes Formal Stringent
Drinking Water Standards for PFOA and PFOS (June 1, 2020), https://www.nj.gov/dep/newsrel/2020/20_0025 htm;
Interstate Tech. Regulatory Council, PFAS Fact Sheets (2020), https://pfas-I.itrcweb.org/wp-content/uploads/2020/
10/regs_508_Aug-2020-Final.pdf .
25' Draft 2018 Toxicological Profile for Perfluoroalkyls at 2, 534; see also U.S. Envtl. Protection Agency, Technical
Fact Sheet - Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) at 1, 3 (2017) (Attachment C).
259 Lianguo Chen et al., Multigenerational Disruption of the Thyroid Endocrine System in Marine Medaka after a
Life -Cycle Exposure to Perfluorobutanesulfonate, 52 Envtl. Sci. & Tech. 4432 (2018) (Attachment C); Lianguo
Chen et al., Perfluorobutanesulfonate Exposure Causes Durable and Transgenerational Dysbiosis of Gut
Microbiota in Marine Medaka, 5 Envtl. Sci. & Tech. Letters 731 (2018) (Attachment C); Lianguo Chen et al.,
Accumulation of Perfluorobutane Sulfonate (PFBS) and Impairment of Visual Function in the Eyes of Marine
Medaka After a Life -cycle Exposure, 201 Aquatic Toxicology 1 (2018) (Attachment C); John Charles Rotondo et al.,
Environmental Doses of Perfluorooctanoic Acid Change the Expression of Genes in Target Tissues of Common
carp, 37 Envtl. Toxicology & Chem. 942 (2018) (Attachment C); Carrie E. Jantzen et al., PFOS, PFNA, and PFOA
Sub -lethal Exposure to Embryonic Zebrafish have Different Toxicity Profiles in Terms of Morphometrics, Behavior
and Gene Expression, 175 Aquatic Toxicology 160 (2016) (Attachment C); A. Hagenaars et al., Structure Activity
Relationship Assessment of Four Perfluorinated Chemicals Using a Prolonged Zebrafish Early Life Stage Test, 82
Chemosphere 764 (2011) (Attachment C); Yang Liu et al., The Thyroid -disrupting Effects of Long-term
Perfluorononanoate Exposure on Zebrafish (Danio rerio), 20 Ecotoxicology 47 (2011) (Attachment C); Haihua
Huang et al., Toxicity, Uptake Kinetics and Behavior Assessment in Zebrafish Embryos Following Exposure to
Perfluorooctanesulphonic Acid (PFOS), 98 Aquatic Toxicology 139 (2010) (Attachment C); Yongbing 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 (2009) (Attachment C).
26o Lianguo Chen et al., Multigenerational Disruption, supra note 259; Lianguo Chen et al.,
Perfluorobutanesulfonate Exposure, supra note 259; Lianguo Chen et al., Accumulation of Perfluorobutane
Sulfonate, supra note 259.
"' Changhui Liu & Karina Yew-Hoong Gin, Immunotoxicity in Green Mussels Under Perfluoroalkyl Substance
(PFAS) Exposure: Reversible Response and Response Model Development, 37 Envtl. Toxicology & Chem. 1138
(2018); Changhui Liu et al., Oxidative Toxicity of Perfluorinated Chemicals in Green Mussel and Bioaccumulation
Factor Dependent Quantitative Structure -Activity Relationship, 33 Envtl. Toxicology & Chem. 2323 (2014).
"' Ruoyo Liang et al., Effects of Perfluorooctane Sulfonate on Immobilization, Heartbeat, Reproductive and
Biochemical Performance of Daphnia magna, 168 Chemosphere 1613 (2017) (Attachment C); Magali Houde et al,

resulting in developmental and reproductive impacts, behavioral changes, adverse effects to
livers, disruption to endocrine systems, and weakened immune systems.263 Despite the
growing scientific understanding of the dangers of PFAS to human and environmental health,
DEQ does not consider whether the Canton mill is discharging PFAS to the Pigeon River.
3. DEQ must require the mill to disclose any PFAS being discharged to the
Pigeon.
The Clean Water Act prohibits the discharge of pollutants from a point source, like the
mill's wastewater treatment system, to waters of the United States —including the Pigeon
River —except in compliance with a NPDES permit issued under Section 402 of the Clean Water
Act, among other conditions. See 33 U.S.C. §§ 131 l(a), 1342. In order to receive coverage under
a NPDES permit, however, a discharger must disclose the pollutants being discharged to
permitting authorities.264 Federal regulations governing NPDES permits require applications to
include significant detail regarding the nature and characteristics of expected discharges. See 40
C.F.R. § 122.21(g). A general disclosure of wastes, operations, and processes is not sufficient to
gain access to any permit shield.265 Nothing excepts HAS from this requirement, and these
requirements apply to state -issued permits under approved delegated programs. See 40 C.F.R. §
122.21 (a)(2)(iv). Indeed, DEQ has acknowledged that disclosure of toxic pollutants, including
PFAS, is required by the Clean Water Act and state water quality laws.266
In December 2014, the mill submitted with its application a characterization of pollutants
likely to be discharged on Form 2C. Nowhere does this disclosure alert DEQ to a potential
discharge of any chemicals classified as PFAS. Consequently, DEQ has not assessed the need for
technology -based limits to control the discharge, much less whether more controls are needed to
protect water quality. Moreover, the public has no information about the discharge of PFAS by
the mill. To the extent the mill has excluded PFAS compounds from its effluent data, the mill has
not complied with NPDES permitting application requirements. Any discharge of PFAS is and
would continue to be a violation of the Clean Water Act.
Endocrine -disruption Potential of Perfluoroethylcyclohexane Sulfonate (PFECHS) in Chronically Exposed
Daphnia magna, 218 Envtl. Pollution 950 (2016) (Attachment Q Kyunghee Ji et al., Toxicity of Perfluorooctane
Sulfonic Acid and Perfluorooctanoic Acid on Freshwater Macroinvertebrates (Daphnia Magna and Moina
Macrocopa) and Fish (Oryzias Latipes), 27 Envtl. Toxicology & Chem. 2159 (2008); Michelle M. MacDonald et
al., Toxicity of Perfluorooctane Sulfonic Acid and Perfluorooctanoic Acid to Chironomus tentans, 23 Envtl.
Toxicology & Chem. 2116 (2004).
263 See supra notes 259-262.
264 S. Appalachian Mountain Stewards v. A & G Coal Corp., 758 F.3d 560 (4th Cir. 2014) (holding a mining
company's failure to meet its disclosure obligations rendered it ineligible for permit shield under the Clean Water
Act); Piney Run Preservation Assn v. Cty. Commis of Carroll Cty, 268 F.3d 255, 268 (4th Cir. 2001).
265 S. Appalachian Mountain Stewards, 758 F.3d at 563.
266 N.C. DEQ Amended Complaint at 6-7 (citing 33 U.S.C. § 1342(k), Piney Run Preservation Assn, 268 F.3d at
265).
41

4. DEQ must develop appropriate effluent limits for PFAS discharges.
Once DEQ requires the disclosure of HAS compounds, DEQ must then develop limits
that apply best available technology to control and eliminate any PFAS in the discharge. As
discussed previously, the Clean Water Act requires permitting agencies to, at the very least,
incorporate technology -based effluent limitations for discharged pollutants, even if those limits
are stricter than necessary to meet water quality standards. If technology -based standards are
insufficient to meet water quality standards, then water -quality -based effluent limits must also be
developed to ensure those standards are met. See 33 U.S.C. § 1342(a)(1)(A); 40 C.F.R. §
122.43 (a).
Where, as here, the outdated ELG for the pulp and paper category does not address the
discharge of a category of pollutants like PFAS, technology -based limits must be developed on a
case -by -case basis using BPJ. 40 C.F.R. § 125.3(c)(3). North Carolina rules, 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(b)(3).
In this case, DEQ must consider the feasibility of the Canton paper mill using existing
treatment technologies, such as granular activated carbon, to eliminate discharges of PFAS.
DEQ is well aware of the effectiveness of granular activated carbon treatment at removing
PFAS based on pilot studies conducted by Chemours. The results show that granular activated
carbon can remove more than 99% of all PFAS tested.26' Almost all of those PFAS were
reduced to levels so low that they were not detectable in the discharge.268
DEQ's analysis does not necessarily stop at technology -based effluent limits, however.
DEQ also must ensure that water quality standards will not be violated. HAS are known to
harm human and aquatic health, and their discharge threatens to violate multiple water quality
standards. For instance, the state toxic substances standard requires that: "the concentration of
toxic substances, either alone or in combination with other wastes, in surface waters shall not
render waters injurious to aquatic life or wildlife, recreational activities, public health, or impair
the waters for any designated uses."269 DEQ in its lawsuit against Chemours recognized that
PFAS "meet the definition of `toxic substance[s] "' under state law.270
267 Parsons, Engineering Report: Old Outfall 002 GA Pilot Study Results Addendum, Chemours Fayetteville Plant
(2020), https://www.chemours.com/en/-/media/files/corporate/old-outfall-2-gac-pilot-addendum final.pd£
261 Id. at App'x B. Similarly, the Cape Fear Public Utility Authority is installing granular activated carbon at its
Sweeney Water Treatment Plant and implementing a process that captures PFAS on the carbon filters and replaces
those filters as needed. See Cape Fear Public Utility Authority, Sweeney Treatment Enhancements Project,
https://www.cfpua.org/775/Sweeney-Treatment-Enhancements-Project (last visited Apr. 14, 2021); see also Jim
Ware, CFPUA Moving Forward with $46M GenX Filtration System, StarNews (Jun. 11, 2019), https://www.
stamewsonline.com/news/20190611 /cfpua-moving-forward-with-46m-genx-filtration-system.
269 15A N.C. Admin. Code 2B .0208(a).
27' N.C. DEQ Amended Complaint at 32 (stating that "the process wastewater from [Chemours]
Fluoromonomers/Nafion® Membrane Manufacturing Area contains and has contained substances or combinations
of substances which meet the definition of `toxic substance' set forth in 15A N.C.A.C. 2B .0202," referring to
GenX and other PFAS).
42

In addition to ensuring compliance with this rule on the Pigeon, DEQ must also ensure
that PFAS discharges do not violate the state's aesthetic standard, which prohibits wastes that
"render the waters injurious to public health, secondary recreation, or to aquatic life and
wildlife, or adversely affect the palatability of fish, aesthetic quality, or impair the waters for
any designated uses." 15A N.C. Admin. Code 02B .0211(12) (Class C waters).
To ensure compliance with these standards, DEQ must require Blue Ridge Paper to
characterize any PFAS being discharged in the Canton mill's effluent, so that DEQ can
evaluate the need for permit conditions imposing technology -based and water -quality -based
effluent limits, along with frequent monitoring. Without this disclosure and analysis, DEQ
cannot ensure compliance with water quality standards or lawfully issue an NPDES permit. See
33 U.S.C. § 1311(b)(1)(C); 15A N.C. Admin. Code 21-1.0112 (c) (final action on NPDES permit
applications).
I. The Draft Permit overlooks multiple additional discharges _ of pollution seeping
from sludge disposal sites into the Pigeon River.
The Draft Permit overlooks multiple additional sources of polluted discharges from the
mill's previous sludge disposal that are currently reaching the Pigeon River. This omission
undermines the reasonable potential analysis that forms the basis of the water -quality -based
effluent limitations in the permit and contravenes existing conditions in the permit.
Blue Ridge Paper's permitted outfall is not the only location where pollution from the
mill's operations are discharged into the Pigeon. For decades, the mill has disposed of sludge
from its wastewater treatment systems into several landfills along the river. That sludge contains
toxic pollutants from the facility's historical operations, ranging from coal ash to potential
forever chemicals likely used by the mill as described above. The Draft Permit references only
the mill's newest landfill. That landfill is lined and contains a system to collect contaminated
leachate, which is sent back to the wastewater treatment system rather than discharged directly
into the river. Crucially, that is not the only industrial landfill that the mill has used to store its
waste, nor is it the only landfill leaking pollutants.
Multiple additional unlined landfills are strung along the banks of the Pigeon River.
Several of these landfills are visible on DEQ's inactive hazardous waste mapping tool as
Champion Landfill Nos. 1, 2 and 3.27' Their closure permits do not authorize polluted seeps to
the Pigeon River. Nonetheless, multiple landfills have seeps actively flowing to the Pigeon, into
the same stretch of the river that receives the mill's effluent discharges from its wastewater
treatment system.
Recent surface water sampling by the French Broad Riverkeeper confirms that seeps
from the landfill sites are polluting the Pigeon with a range of contaminants. In June 2019, the
211 N.C. Dep't of Envtl. Quality, Inactive Hazardous Sites Map, https:Hdeq.nc.gov/about/divisions/waste-
management/waste-management-rules-data/waste-management-gis-maps/ihs-map-viewer (last visited Apr. 14,
2021)
43

French Broad Riverkeeper found that landfill seeps are discharging pollutants typical of
contamination from coal ash, which is among the waste landfilled at the unlined sites.
Examples of Seeps from Canton Paper Landfill No. 1.272
The samples from seeps at Landfill No. 1 contained elevated levels of boron, cobalt, iron,
molybdenum, strontium, and zinc.273 Sampling from a creek draining from the edge of Landfill
No. 2 included elevated levels of cadmium and strontium. Levels of boron, cadmium, and cobalt
exceeded North Carolina in -stream target values for surface waters; iron and manganese
exceeded EPA's recommended water quality criteria. Several of these pollutants are indicators of
coal ash migrating through seeps toward the river.274
These seeps probably harbor more than just pollutants associated with coal -ash waste.
Indeed, a forthcoming study also found PFAS compounds in samples from landfill seepage.
Although not disclosed by the mill, PFAS were evidently used in the mill's processes
272 These seep locations are at approximately 35.5437617,-82.86398329999999 and 35.54336450000002, -
82.863597 (flow from toe drain).
271 North Carolina's surface water standards are available at https://deq nc.gov/documents/nc-stdstable-06102019.
Zinc and cadmium are subject to hardness dependent numeric standards.
274 See, e.g., Federal Coal Combustion Residuals Rule, 40 C.F.R. Appendices III and IV to Part 257 (listing boron
among detection constituents and cadmium, cobalt and molybdenum as monitoring constituents); Jennifer S.
Harkness, Barry Sulkin, & Avner Vengosh, Evidence for Coal Ash Ponds Leaking in the Southeastern United
States, 50 Envtl. Sci. & Tech. 6583 (2016) (Attachment C) (discussing boron and strontium).
MA

historically, disposed of along with other sludge waste, and are now discharged into the Pigeon
River.
DEQ has apparently made no attempt to locate, characterize, or eliminate these seep
discharges. Unauthorized discharges of pollutants through points sources to the Pigeon River are
standalone violations of the Clean Water Act. The scope of the problem, however, is not limited
to surface water. Buried waste also contaminates groundwater, which migrates offsite and
hydrologically connects to the river. Thus, even more pollution is likely reaching the river
through groundwater migrating through the buried waste in unlined landfills. DEQ must require
the mill to determine the nature and extent of groundwater contamination emanating from these
unlined industrial landfills, particularly as several residences are located near the old landfill
sites.
Although separate regulatory enforcement is necessary, the discharge of pollution from
prior wastewater sludge disposal and its effects on the water quality of the Pigeon River are also
relevant to permit conditions in this NPDES permit.
1. Duty to Mitigate and Removed Substances Conditions.
In addition to complying with individual permit conditions, Blue Ridge Paper must
ensure its wastewater treatment systems and sludge disposal practices comply with the NPDES
Permit standard conditions. The Duty to Mitigate provision requires Blue Ridge Paper to
minimize or prevent any "sludge use or disposal in violation of this permit with a reasonable
likelihood of adversely affecting human health or the environment. ,275 To the extent Blue Ridge
Paper discharges undisclosed HAS from its wastewater into the Pigeon, in violation of its
permit, or allows pollution from contaminated sludge to migrate to the Pigeon, the mill fails to
"take all reasonable steps to minimize or prevent any discharge or sludge use or disposal in
violation of [its NPDES permits] with a reasonable likelihood of adversely affecting human
health or the environment," as required by the Duty to Mitigate.
The Removed Substances provision also prohibits pollution from entering the Pigeon
from sludge disposal practices: "Solids, sludges, filter backwash, or other pollutants removed in
the course of treatment or control of wastewaters shall be utilized/disposed of... in a manner
such as to prevent any pollutant from such materials from entering waters of the State."276 The
Removed Substances provision ensures that "measures shall be taken to assure that pollutants
[and] materials removed from the process water and waste streams will be retained in storage
areas and not discharged or released. ,277 This provision aims to "ensure the integrity" of such
systems so that pollution does not escape into the environment.278 Allowing coal -ash pollutants,
275 See N.C. Dep't of Envtl. Quality, NPDES Permit Standard Conditions at § B(2) (2011), https:Hfiles.nc.gov/
ncdeq/Surface%20W ater%2OProtection/NPDES/GUIDANCEBoilerplate- I 1-09-2011-2.pdf
276 See id. at § C(6).
277 In re: 539 Alaska Placer Miners, 1085-06-14-402C, 1990 WL 324284, at *8 (EPA Mar. 26, 1990); see also 40
C.F.R. § 440.148(c).
271 Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141 F. Supp. 3d 428, 446-47 (M.D.N.C. 2015)
(interpreting the Removed Substances provision in context of coal -ash disposal at the Buck Steam Station).
45

PFAS, or other pollutants to escape areas where sludge from the mill's wastewater treatment
system has been disposed of and enter the Pigeon River violates the Removed Substances
provision.
2. Factoring downstream pollution concentrations into water -quality -based
effluent limitations.
The Draft Permit must consider these additional sources of pollution to the Pigeon
which are connected to the mill's waste disposal practices —in developing appropriate permit
limits on pollution from the mill's wastewater outfall. The minimal information provided by the
Draft Fact Sheet about the reasonable potential analysis conducted to determine the need for
water -quality -based effluent limitations does not indicate what conditions were assumed to be
present in the Pigeon River. As shown above, leaking landfills immediately downstream of the
mill's outfall are adding pollution to the same stretch of the Pigeon. In addition to seeps, it is
likely that far more pollution is entering the Pigeon through hydrologically connected
groundwater, which migrates through these waste sites. Although little information about DEQ's
reasonable potential analysis is available in the Draft Fact Sheet, nowhere does DEQ indicate
that it has considered these additional polluted discharges in its evaluation of the potential for
Blue Ridge Paper's discharge to violate water quality standards. To be clear, the outfall is not the
only source of Blue Ridge Paper's polluted discharges to the Pigeon River, and any analysis that
assumes so is in error.
EPA requires consideration of downstream conditions when issuing an NPDES permit.
Specifically, before calculating a water -quality -based effluent limitation, the permit writer first
determines the waste load allocation ("WLA") for the point -source discharge.279 "The WLA is
the loading or concentration of pollutant that the specific point source may discharge while still
allowing the water quality criterion to be attained downstream of that discharge."280 The WLA
calculation accounts for "contributions from other point and nonpoint sources."281 The Draft Fact
Sheet reflects no attempt to develop a WLA based on pollutant contributions of leaking landfill
sites immediately downstream of the mill. This omission undercuts the entire reasonable
potential analysis. In reevaluating the need for water -quality -based effluent limitations, DEQ
should apply the NPDES guidance. DEQ must document this process in a revised fact sheet that
provides "the public a transparent, reproducible, and defensible description of how the permit
writer properly derived [water -quality -based effluent limitations] for the NPDES permit."282
J. The Draft Permit relies on outdated data to support its findings.
If approved, DEQ's Draft Permit will allow Blue Ridge Paper to discharge pollutants into
the Pigeon River until 2026. If DEQ continues its practice of administratively extending this
271 Permit Writers' Manual, supra note 208, at § 6.4.1.5.
281 Id. (emphasis added).
281 Id. (describing use of a model where a WLA "is needed to address the nearfield effects of a discharge on water
quality criteria").
282 Id.
.o

permit —as it has for the past two permit cycles —it could govern for even longer. Yet much of
the data that DEQ relies on to support its findings and conditions in the Draft Permit is already
outdated by a full permit term or more. For example:
• 2014 BIP study: The study DEQ relies on to support Blue Ridge Paper's continued
thermal variance is already seven years old. The data within the study is even older
for instance, biotic sampling for the BIP ended in September of 2012, over 100
months ago.
• 2008-2013 dioxin sampling: As described in more detail above, there has been no
fish -tissue dioxin sampling conducted in the Pigeon River since 2014. Even though
the 2014 sampling found elevated levels of dioxin in common carp fillets, the Draft
Permit relies on even older sampling efforts from 2008-2013 to justify reducing the
frequency of fish -tissue sampling to once per permit period.283
• 2008-2013 notices of violation: The Draft Fact Sheet discloses that DEQ issued
eighteen notices of violation ("NOVs") to Blue Ridge Paper from September 2008 to
August 2013.284 DEQ does not disclose that it has issued NOVs for numerous fecal
coliform violations and other monitoring violations during the seven following years
as well.
• 2008 Technology Review Workgroup: As noted above, the Draft Fact Sheet
suggests that the Draft Permit limits on color are appropriate because they "were
established in accordance with the Technology Review Workgroup (TRW)
recommendations for the 2010 permit renewal."285 However, these recommendations
were based on color -reduction technologies available in 2008—nearly thirteen years
ago. DEQ does not consider or address whether these technologies or their costs have
changed in the interim.
• 2014-2018 dissolved oxygen review: In its discussion of dissolved oxygen levels in
the Pigeon, the Draft Fact Sheet notes that daily average dissolved oxygen
concentrations below the mill did not drop below North Carolina's water quality
standard (5.0 mg/L) between 2014 and 2018. DEQ does not disclose whether this
standard has been met over the past three years, nor does it relate whether the
instantaneous dissolved oxygen standard (4.0 mg/L) has been met.
• 2014 Permit Application: Blue Ridge Paper applied for a permit renewal in 2014.
Instead of developing a new permit, DEQ administratively extended the 2010 permit
for five years. Now DEQ intends to grant the 2014 renewal application —in 2021.
Because the application is now almost seven years old, DEQ must elicit current data
on the mill's discharge via an updated Form 2C. This is especially pertinent now that
the nature of the mill's discharge is changing. Specifically, DEQ's Draft Permit
recommends approving Blue Ridge Paper's request to increase its flow limit from
2" Draft Fact Sheet at 3-4.
284 Id. at 6.
285 Id.
47

29.9 MGD to 34.0 MGD286an increase of nearly 14%. Part of this increase will be
used to process scrubber waste or treat additional landfill leachate,287 and the vast
majority (70.7%) will be used in the mill's paper processing.288 Because the Draft
Permit allows the discharge of 4.1 million more gallons of effluent per day, DEQ
must require Blue Ridge Paper to provide an updated Form 2C disclosing the impacts
this increased flow usage will have on effluent levels. See 40 C.F.R. § 122.44
(requiring NPDES permit conditions be based on "existing controls on point and
nonpoint sources of pollution" (emphasis added)); 15A N.C. Admin. Code 2H
.0143(25) (incorporating 40 C.F.R. § 122.44 by reference).
Because DEQ is relying on information that is up to thirteen years old, it cannot guarantee that
its Draft Permit "maintain[s] or enhance[s] the chemical, physical, biological and radiological
integrity" of the Pigeon River. N.C. Gen. Stat. § 143-215(b). DEQ must require submission of an
updated Form 2C, disclose all NOVs, cease reliance on outdated —and superseded —dioxin test
results, ask to reconvene the Technology Review Workgroup, disclose both recent and
instantaneous dissolved oxygen data, and require the preparation of an updated BIP study.
K. DEQ must impose stricter controls to mitigate the mill's repeated fecal coliform
violation --
Blue Ridge not only treats the mill's industrial waste, but also the Town of Canton's
sewage waste. With that comes the responsibility to ensure bacteria like fecal coliform meet
water quality standards and pose no health risk. See 15A N.C. Admin. Code 02B .0211(7) (Class
C waters). Fecal coliform is an indicator used to detect waterborne pathogens in streams and
rivers.289 Finding high levels of fecal coliform in waterbodies suggests that harmful bacteria and
viruses might also be present, including those causing typhoid fever, gastroenteritis, cholera, and
hepatitis A.290 DEQ issued fourteen violations to the mill for exceeding the permit's fecal
coliform limit between 2008 and 2013'291 and around a dozen more violations have been issued
in the years since.292 These repeated violations exceed permit limits and present a health risk to
recreational users of the Pigeon River.
While the Draft Fact Sheet acknowledges the repeated violations, neither it nor the Draft
Permit indicates what additional measures will be taken to curb these violations. Because DEQ
216 Id. at 7-8.
287 Id. at 7-8.
288 See id.
289 N.C. Dep't of Env't & Nat. Res., Supplemental Guide to North Carolina's Basinwide Planning at 149 (2008),
https://files.nc.gov/ncdeq/Water%20Quality/Planning/BPU/BPU/Supplemental%20Guide/Supplemental%20Guide
%202008.pdf.
290Id. at 152.
29' Draft Fact Sheet at 6.
292 See N.C. Dep't of Envtl' Quality, Div. of Water Res. Laserfiche folder for NC0000272, https:Hedocs.deq nc.gov/
WaterResources/Browse.aspx?id=537199&dbid=0&repo=WaterResources&cr=1.
M.

lacks a strategy to assure compliance with the fecal coliform standard, it risks perpetuating the
same permit violations going forward.
This outcome is foreclosed by federal and state law. Under the Clean Water Act, North
Carolina cannot issue an NPDES permit that will contribute to violations of water quality
standards. See 33 U.S.C. § 131 l(b)(1)(C). State regulations impose a similar requirement: "No
permit may be 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).
Blue Ridge Paper's recent history of non-compliance requires DEQ to reevaluate whether
the existing permit terms are sufficiently stringent and to develop additional measures that will
assure compliance with fecal coliform standards.
L. DEQ must not relax its chloroform limits for internal outfalls 002 and 003.
DEQ proposes increasing the mill's chloroform limits for internal outfalls 002 and
003.293 The reason for this "recalculat[ion]," according to the Draft Fact Sheet, is to bring these
internal limits in line with EPA's promulgated effluent guidelines for the Pulp, Paper, and
Paperboard Point Source Category.294 However, backsliding on effluent limitations like these is
specifically foreclosed by the Clean Water Act and its implementing regulations. 33 U.S.C.
1342(o); 40 C.F.R. § 122.44(1); 15A N.C. Admin. Code 02B .0408(25) (incorporating § 122.44
by reference). Relaxing these limits also makes no sense when Blue Ridge Paper has been
successfully meeting these limits for years, if not decades.295
In general, whenever an NPDES permit is reissued, the effluent limitations of the new
permit "must be at least as stringent as the final effluent limitations" of the previous permit. 40
C.F.R. § 122.44(1)(1). Even if EPA promulgates or revises its effluent guidelines subsequent to
issuing the previous permit, the new permit still may not "contain effluent limitations which are
less stringent than the comparable effluent limitations in the previous permit" unless certain
limited exceptions apply. Id. § 122.44(1)(2). The Draft Fact Sheet does not identify any
exceptions that might apply, or otherwise explain why increasing chloroform limits does not
constitute illegal backsliding. Nor does DEQ explain whether these changes will increase the
amount of chloroform reaching the Pigeon via outfall 001. DEQ must either fully explain why
increasing chloroform limits does not violate the Clean Water Act or require the mill to maintain
the limits it has already been meeting for years.
2" Limits for internal outfall 002 are proposed to increase from a daily maximum of 8.6 lbs/day and a monthly
average maximum of 5.1 lbs/day to a daily limit of 10.5 lbs/day and a monthly average limit of 6.27 lbs/day.
Compare 2010 Permit, supra note 213, at 6, with Draft Permit at 6. Likewise, limits for internal outfall 003 are
proposed to increase from a daily maximum of 10.9 lbs/day and a monthly average maximum of 6.5 lbs/day to a
daily limit of 12.5 lbs/day and a monthly average limit of 7.49 lbs/day. Compare 2010 Permit, supra note 213, at 7,
with Draft Permit at 8.
214 Draft Fact Sheet at 9.
2" For example, the effluent limits for internal outfall 002 have remained unchanged since at least 2001. See N.C.
Dep't of Env't & Nat. Res., NPDES Permit No. NC0000272 Blue Ridge Paper Produces Inc. at 4 (Nov. 15, 2001).

M. The Draft Permit must include a reference to an oxygen -injection facility 0.9
miles downstream of the mill.
In North Carolina, Class C waters like the Pigeon River below the mill must maintain an
instantaneous in -stream dissolved oxygen of at least 4 mg/L, and a daily average of 5.0 mg/L.
15A N.C. Admin. Code 02B .0211(6). For many years, DEQ has allowed Blue Ridge Paper to
meet this standard by employing sidestream oxygen -injection facilities.296 The Draft Fact Sheet
states that these "oxygen injection facilities will continue to be maintained at the effluent, 0.9,
and 2.1 miles downstream."297 However, the Draft Permit only requires Blue Ridge Paper to
operate "oxygen injection facilities at the outfall structure, [and] at 2.1 miles downstream of the
discharge."298 Given the language in the Draft Fact Sheet, the Draft Permit's failure to list an
injection station at 0.9 miles downstream is likely an oversight. DEQ should add a reference to
this site back into the permit to ensure that Blue Ridge Paper will maintain the water quality
standard for dissolved oxygen in the Pigeon downstream of the discharge.
III. Conclusion
DEQ's Draft Permit violates federal and state law, and does not do enough to protect and
restore the Pigeon River. DEQ must withdraw and revise the Draft Permit to correct the
deficiencies detailed above before resubmitting the revised draft permit for public comment.
Thank you for your consideration.
Please contact Patrick Hunter, or Spencer Scheidt, at [phone] or
[e-mail] and [e-mail] if you have any questions regarding these
comments.
2" Draft Fact Sheet at 5-6.
297 Id. at 6.
298 Draft Permit at 18.
Sincerely,
Spencer Scheidt
Associate Attorney
rntz!:�,- /#,--
Patrick Hunter
Senior Attorney
50

cc — via email:
Lauren Petter, EPA, Petter.Lauren(cepa.gov
Susannah Knox
Senior Attorney
51
l