NC0004308_ELPC Second Comments on Permit_Final Draft_20150713

I DuKE LAW
OF THE ENVIRONMENT
DUKE UNIVERSITY
forging a sustainable future
Ryke Longest, Director Michelle Nowlin, Supervising Attorney
Environmental Law & Policy Clinic Telephone: [phone]
Box 90360 Toll Free: [phone]
Durham, NC 27708-0360 Fax: [phone]
July 1, 2015
Teresa Rodriguez
NCDENR-Division of Water Resources
Wastewater Branch
1617 Mail Service Center
Raleigh,NC 27699-1617
By fax [phone] and
E-mail to [e-mail]
RE: Additional Comments on Proposed NPDES Stormwater Permit for Alcoa-Badin
Works—Permit NC0004308
Dear Ms. Rodriguez:
On behalf of the Yadkin Riverkeeper, Inc. ("Yadkin Riverkeeper" or
"Riverkeeper"), we are submitting the following comments pursuant to the Public
Hearing Notice issued by your office for Alcoa Inc.'s ("Alcoa")proposed National
Pollutant Discharge Elimination System ("NPDES")permit NC0004308 for the Alcoa-
Badin Works facility. The Riverkeeper provides this additional set of comments to
supplement its original comments provided to your office via e-mail and dated March 1,
2015.
In sum, the Alcoa-Badin Works aluminum smelting plant and all associated
industrial wastewater-producing processes ceased several years ago, the buildings and
equipment generating industrial wastewater have been eliminated, but the hazardous
wastes contaminating the former smelter and associated sites have not been removed and
serve as ongoing sources of groundwater contamination. The extent and nature of this
groundwater contamination has not been adequately studied by the North Carolina
Department of Environment and Natural Resources, Division of Water Resources
("DWR"). Indeed, the Riverkeeper has investigated contamination in areas not evaluated
by DWR and the Division of Waste Management, leading to the filing of a Superfund
Preliminary Assessment Petition with US EPA last fall. US EPA and the Division of
Waste Management ("DWM") are continuing their investigation under the Yadkin
Riverkeeper's petition. The stormwater collection and discharge system at Alcoa-Badin
Works has become a de facto disposal system transporting contaminated groundwater
into Badin Lake and Little Mountain Creek. Therefore, this permit should be treated as a
groundwater remediation discharge permit and not a stormwater permit. These waters are
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both impaired, due in part to this contamination, and this proposed permit fails to correct
the impairment. In addition, DWR has failed to enforce the prior permit's insufficient
limits, such as they were. The proposed permit does not meet DWR's duties to protect
these waters and the people who use them.
I. DWR Has Failed to Satisfy Its Legal Duties to Protect the Environment and the
People who Depend upon It
DWR has a duty to protect the waters of North Carolina. In situations similar to
Alcoa's, other states have recognized the need to develop General Permits for discharges
from groundwater remediation systems. Due to DWR's failure to enforce active
remediation of groundwater on the site and accept natural attenuation instead, the
stormwater system has become a de facto groundwater remediation system. The Clean
Water Act("CWA") requires that any permits for such a system protect uses with
enforceable effluent limitations. NC DENR also must make sure that permits take into
account the past history of noncompliance to tighten the permit, rather than loosen it. The
proposed permit does not meet the legal standards and should be rewritten.
A. Permits in Idaho, Massachusetts, and New Hampshire for Groundwater
Remediation Systems are Designed to Protect Water Quality Standards from
Violations due to Discharges and Should Guide NC DENR
Other states have developed General Permits which set forth effluent limitations
for remediation systems discharging wastewater from sites with contaminated
groundwater. North Carolina has only developed an NPDES General Permit for
groundwater contaminated with petroleum,see NC DENR,NPDES Permitting Process,
available at http://portal.ncdenr.org/web/wq/swp/ps/npdes/permitprocess, and otherwise
only permits non-discharge groundwater remediation systems. See NC DENR,
Groundwater Protection Program Areas, available at
http://portal.ncdenr.org/web/wq/aps/gwpro/gwremediation. Thirty years ago, DWM
pursued vigorous remediation plans at sites with contaminated groundwater. Today,
however, DWM no longer pursues groundwater remediation at most sites, thereby putting
the onus on DWR to make sure that surface waters are not degraded by contaminated
groundwater. At the very least, DWR must make sure that NPDES permits which
discharge contaminated groundwater do not degrade surface waters. DWR must keep in
close coordination with DWM to communicate on permitting and enforcement issues at
facilities like Alcoa-Badin Works where contaminated groundwater degrades both a
neighboring stream and lake.
In 2014, the Idaho Department of Environmental Quality proposed a General
Permit for the discharge of wastewater from groundwater remediation systems. See EPA,
NPDES Fact Sheet IDG911000, available at
http://www.epa.gov/region 10/pdf/permits/npdes/id/gw_remediation_factsheet_073114.pd
f[hereinafter Idaho Fact Sheet]. By default, all facilities seeking coverage under Idaho's
General Permit IDG911000 must control their discharges to satisfy the CWA's
requirement that discharges meet the more stringent of either technology based effluent
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limitations ("TBEL") or water quality based effluent limitations ("WQBEL"). TBEL are
set according to the level of treatment that is achievable using available technology.
WQBEL are designed to ensure that the water quality standards set by the state and
approved by the EPA for any given waterbody are being met. As such, WQBEL often
will be more stringent than TBEL for the same pollutant. In turn, WQBEL or TBEL is
used to calculate permit limits for both an Average Monthly Limit("AML") and a
Maximum Daily Limit("MDL"). For facilities with variable discharges, Idaho's General
Permit IDG911000 sets the discharge limits at the level of the MDL for that pollutant. A
comprehensive table of the limits for Idaho's General Permit IDG911000 can be found as
Table 6. Idaho Fact Sheet at 37-40. This table includes values for many of the pollutants
previously observed in either groundwater or soil at Alcoa-Badin Works. For example the
Idaho General Permit sets the MDL for cyanide at 8.5 micrograms/liter and the ADL is
set at 4.3 micrograms/liter.
In 2005, Massachusetts and New Hampshire proposed similar General Permits for
groundwater remediation facilities. See EPA,Fact Sheet, available at
http://www.epa.gov/region l/npdes/remediation/factsheet-pp-1-90.pdf. In protecting water
quality, these states took a similarly detailed and protective approach to that taken by
Idaho. The 2005 permit proposed the discharge Maximum Limit ("MDL")for cyanide to
be set at 5.2 micrograms/liter.
The Idaho, Massachusetts, and New Hampshire, permits set specific effluent
limits for discharges from groundwater remediation facilities for cyanide, a wide array of
hazardous metals, polychlorinated biphenyls ("PCBs"), and volatile organic compounds.
These states have acted responsibly to make sure that their surface waters are not
endangered by discharges from groundwater cleanup activities. North Carolina should be
at least as protective of its surface waters as these states. There is no reason that North
Carolina should allow for cyanide discharges without enforceable limits from any
industrial facility. The proposed permit is not sufficient to protect water quality, as shown
by the conditions and effluent limits set by Idaho,New Hampshire, and Massachusetts.
B. DWR is Duty Bound to Protect North Carolina's Lands and Waters for the
Benefit of All Its Citizens and to Protect Uses of the Those Waters by Setting
Protective Water Quality Standards and by Insuring that Its NPDES
Permittees Meet Those Standards
When evaluating an NPDES permit request, DWR must not only mind the
minimum limits imposed by federal law,but cannot issue any permit which violates its
duties laid out by the North Carolina State Constitution. Limiting and controlling
pollution is a duty of the State and all its political subdivisions. This provision imposes a
duty on the DWR, in conjunction with the Environmental Management Commission
("Commission"), to carry out its powers to protect the lands and waters for the benefit of
all its citizenry. North Carolina's Constitution directly imposes a duty of water quality
protection upon NC DENR and all of its divisions:
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It shall be the policy of this State to conserve and protect its lands and
waters for the benefit of all its citizenry, and to this end it shall be a proper
function of the State of North Carolina and its political subdivisions to
acquire and preserve park, recreational, and scenic areas, to control and
limit the pollution of our air and water, to control excessive noise, and in
every other appropriate way to preserve as a part of the common heritage
of this State its forests, wetlands, estuaries, beaches, historical sites,
openlands, and places of beauty.
N.C. Const. art. XIV, § 5.
Forty years ago, our General Assembly reinforced this Constitutional mandate by
enacting the General Statutes which protect these values, including the laws which
empower NC DENR and the Commission, such as Chapters: 113, 113A, 113B, 130A,
130B, 132, 139, 143, 143B, 146, 150B, 156, 159, 159A, 159B, 159C, 159G, and 162A.
Among this comprehensive system of laws is found Article 21 of Chapter 143, captioned,
"Water and Air Resources."Within Article 21,the General Assembly declares its intent
for those laws:
to achieve and to maintain for the citizens of the State a total environment
of superior quality. Recognizing that the water and air resources of the
State belong to the people, the General Assembly affirms the State's
ultimate responsibility for the preservation and development of these
resources in the best interest of all its citizens and declares the prudent
utilization of these resources to be essential to the general welfare.
N.C. Gen. Stat. § 143-211(a) (emphasis added).
The General Assembly's enactments clearly show its intent to clarify the legal
points (a) that water and wildlife resources belong to the people, and(b) that the State
bears responsibility to preserve and develop these resources as a public trust asset. This
trust may not be devolved to private interests through permits or approvals which give
perpetual rights to pollute and degrade the public trust resources of the people. See N.C.
Const. art. I, §§ 32, 34.
Under the provisions of Article 21 of Chapter 143, the North Carolina General
Assembly has set forth the guidelines for NC DENR and the Commission to use when
enacting these standards, and specifically sets forth criteria more stringent and more
specific than the Clean Water Act. At the core of EPA-approved state water quality
standards under 33 U.S.C. § 1313, states are responsible for enforcing their water quality
standards on intrastate waters. See 33 U.S.C. § 1319(a) (2012).
In setting water quality standards, the General Assembly directed the following be
considered:
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Standards of water and air purity shall be designed to protect human
health, to prevent injury to plant and animal life, to prevent damage to
public and private property, to insure the continued enjoyment of the
natural attractions of the State, to encourage the expansion of employment
opportunities, to provide a permanent foundation for healthy
industrial development and to secure for the people of North
Carolina, now and in the future, the beneficial uses of these great
natural resources.
N.C. Gen. Stat. § 143-211(c) (emphasis added).
These provisions clearly show the recognition of a duty to protect uses of our
State's waters for the benefit of today's users and those in the future. The Clean Water
Act's requirements are the floor for water quality standards enacted by North Carolina,
not the ceiling. State water quality standards established under CWA § 303 provide an
important"supplementary basis . . . so that numerous point sources, despite individual
compliance with effluent limitations, may be further regulated to prevent water quality
from falling below acceptable levels." EPA v. California ex rel. State Water Res. Control
Bd., 426 U.S. 200, 205 n.12 (1976). States therefore may and often are expected to
impose more stringent water quality controls. See 22 U.S.C. § 1311(b)(1)(c).North
Carolina's Constitution and General Statutes expect that DWR and the Commission
establish more stringent water quality standards, and require that these standards are
made to protect established water uses.
Although Alcoa's previous 2008 NPDES permit expired on February 28, 2013,
the 2008 permit requirements remain in force until the issuance of a new NPDES permit,
NCDENR,NPDES Permitting Processes, available at
http://portal.ncdenr.org/web/wq/swp/ps/npdes/permitprocess#Renewing_NPDES, or until
such other appropriate enforcement action is levied upon the permit holder, as described
in Part W below.
C. Both DWR's and Alcoa's Own Sampling Records Indicate a History of
Habitual Permit Effluent Limit Violations
The Alcoa-Badin Works 2008 NPDES permit set effluent limits for cyanide and
fluoride for Outfalls 011 (cyanide), 012 (cyanide and fluoride), and 013 (fluoride). The
2008 permit does not set cyanide or fluoride effluent limits for Outfall 005, located down
gradient of the Alcoa-Badin Landfill (SWMU 2),but instead has a monthly monitoring
requirement for the contaminants. Outfall 011 is monitored quarterly for cyanide and
fluoride. Under the 2008 permit, Outfall 012 is monitored for fluoride monthly and
cyanide bimonthly, and Outfall 013 is tested for fluoride and cyanide bimonthly.
A review of the Alcoa-Badin Works discharge monitoring reports ("DMRs") from
September 2008 to March 2015 revealed that Alcoa exceeded its NPDES effluent
limitations for cyanide or fluoride five times. Alcoa DMRs &Notices of Violation (2008-
2015). The monthly MDL set for cyanide at Outfall 011 (46.6 pg/L) was exceeded twice
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between 2010 and 2015. One violation occurred in February 2010, DENR Notice of
Violation–Effluent Limitations,NOV-2010-LV-0182 (May 20, 2010), and the other
occurred in November of 2013, DENR Notice of Violation–Effluent Limitations,NOV-
2014-LV-0085. Outfall 013's weekly average effluent limitation for fluoride (1.8 mg/L)
were exceeded three times between 2010 and 2015, DENR Notice of Violation–Effluent
Limitations, (Oct. 26, 2011 and Jan. 14, 2011). Two violations occurred in July 2011,
DENR Notice of Violation–Effluent Limitations, NOV-LV-2011-0528 (Oct. 26, 2011),
and one in August of 2010. DENR Notice of Violation–Effluent Limitations,NOV-LV-
2011-0017 (Jan. 14, 2011). There also were several other violations of pH limitations that
occurred between 2010 and 2015. Each of these violations were addressed by DWR by
way of a nominal civil penalty.
While there were only two reported cyanide and three reported fluoride violations
of the 2008 NPDES permit between the years 2010 and 2015, this apparent infrequency
is not indicative of a lack of contamination. The relatively low number of reported
violations is a not a result of clean point source discharge,but is instead a direct result of
an ineffective and insufficient permit. The 2008 NPDES permit does not adequately
maintain water quality as mandated by the Clean Water Act. The 2008 permit requires
monitoring for cyanide and fluoride at Outfalls 005, 011, 012, and 013, but only provides
numeric effluent limitations for cyanide at Outfalls 011 and 012, and for fluoride at
Outfalls 012 and 013. This lack of numeric effluent limitations is of substantial concern
due to the prolonged and consistent discharges of contaminants from these outfalls. In
fact, the DMRs Alcoa submitted between 2008 and 2015 indicate that there were
substantial discharges of both cyanide and fluoride at those outfalls without effluent
limitations—discharges that surpassed North Carolina water quality standards and EPA's
water quality criteria, the importance of which is discussed in the following section.
D. DWR is Required to Set Enforceable Effluent Limits in the Permit to
Protect Water Quality Standards and Correct the Degradation of Badin
Lake and Little Mountain Creek While a TMDL Is Developed
The CWA created a framework for restoring and maintaining the "chemical,
physical, and biological integrity of the Nation's waters." 33 U.S.C. §1251(a). To meet
these goals, the CWA established the NPDES program and authorizes the permitting
scheme that regulates point sources that discharge pollutants into the waters of the United
States.Id. § 1342. EPA is charged with implementing this permitting system, but has
delegated NPDES permitting authority to the majority of states and territories. EPA, State
Program Status, available at http://water.epa.gov/polwaste/npdes/basics/NPDES-State-
Program-Status.cfm. Similarly, DWR has been delegated the authority and responsibility
to administer the Clean Water Act's Total Maximum Daily Load ("TMDL")program.
NCDENR,North Carolina TMDL Program, available at
http://portal.ncdenr.org/web/wq/ps/mtu/tmdl. "A TMDL is a calculation of the maximum
amount of a pollutant that a waterbody can receive and still meet water quality
standards," and is used to establish pollutant limits for point source and non-point source
pollution discharges along a waterbody. Id. TMDLs for point sources are enforced by
incorporating TMDL limits in NPDES permits.Id.
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EPA's water quality criteria, promulgated per the CWA, are minimum
requirements that are the basis for the states to develop more stringent, state-specific
standards that address their particular water quality issues and to protect designated uses.
See 33 U.S.C. § 1311(b)(1)(c). Yet, in the absence of a state water quality standard, the
federal water quality criteria applies, and should be the minimum standard to which
pollutant discharges are limited. As such, the analysis of Alcoa's DMRs contained within
this comment letter analyzes Alcoa's discharge monitoring report data from 2008-2015
using the federal criteria where DWR has not provided an effluent limit in the 2008
NPDES permit. DWR's use of EPA's federal cyanide water quality criteria in
establishing a 5 µg/L chronic standard confirms that this methodology is correct. See
DENR/DWR, Fact Sheet for NPDES Permit Development,NPDES No.NC0004308 at 6
[hereinafter Fact Sheet]; EPA,National Recommended Water Quality Criteria, available
at http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm
[hereinafter EPA Criteria]. Further, the CWA specifically disallows for state permitting
agencies to require less stringent effluent limitations in later NPDES permits without
substantial justification. Id. § 1342(o).
In the 2015 proposed permit, DWR states that the applicable chronic fresh water
quality standard for cyanide for Little Mountain Creek and Badin Lake should be 5 µg/L.
Fact Sheet at 6; EPA Criteria. DWQ arrives at this effluent standard by referencing
EPA's national recommended water quality criteria for bodies of water with aquatic life.
EPA Criteria; see EPA, Water Quality Criteria, available at
http://water.epa.gov/scitech/swguidance/standards/criteria/. As explained above, this
determination is consistent with those findings by Idaho,New Hampshire and
Massachusetts in setting their General Permit limits. However, the 2008 NPDES permit
does not impose this cyanide limitation for Outfalls 005, 011, or 013. Instead, DWR's
proposed permit allows for the unrestricted discharges of cyanide and fluoride, subject to
monitoring.
Upon applying the 5 µg/L cyanide limitation to Alcoa's DMR data, Outfalls 005,
011, and 013 exceeded this limitation 102 times between September of 2008 and March
of 2015. Alcoa DMR(2008-2015). Exceedance discharges were greatest at Outfall 005,
where monitored discharges exceeded 5 µg/L of cyanide 71 times over the reviewed
period.
When a discharge was detected at the time of sampling, the average monthly
concentration of cyanide from Outfall 005 was 20.9 µg/L. Alcoa DMR(2008-2015).1
This average is over four times greater than DWR's 5 µg/L limitation. Also, there were
four instances between 2008 and 2015 in which the Division's acute toxic maximum
concentration of cyanide for Outfall 005 was exceeded(24 µg/L daily maximum). Fact
Sheet at 6.
1 Average calculated from DMRs with recorded discharges. Data from Jan 09, July 09,
and Dec 12 were not included due to missing data.
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DWR also has indicated that the 5 µg/L cyanide limitation applies to Outfalls 011
and 013. Like Outfall 005, and to the detriment of environmental and public health, the
2008 NPDES permit did not specify chronic effluent limitations for cyanide, but merely
required Alcoa to monitor discharges. Between the issuance of Alcoa's 2008 permit and
March of 2015, discharges from Outfall 011 exceeded the cyanide limitation thirteen
times, averaging 10.8 µg/L when a discharge was recorded. Discharges from Outfall 011
also exceeded EPA acute toxicity limitation guidelines for freshwater aquatic life (46.6
µg/L) twice during the reviewed period.
Outfall 013 exceeded the cyanide limitation eighteen times between 2008 and
2015. Unfortunately, average discharges from this outfall over the 2008 permit period
cannot accurately be determined due to Alcoa's reporting procedures. During the DMR
review period, the permit allowed for Alcoa to consider any concentration of cyanide
below 5 µg/L from Outfall 013 to be too low to measure accurately, and so reported all
concentrations below that level as zero. Under this reporting system, calculating a
meaningful and accurate average discharge over time is impossible. Any calculation
using Alcoa's DMR numbers would more than likely underestimated average cyanide
concentrations. Discharges from Outfall 013 also exceeded EPA maximum daily
discharge guidelines for freshwater aquatic life (46.6 µg/L) five times between 2008 and
2015.
Through Alcoa's routine DMR's, DWR has been aware of consistently elevated
and unsafe levels of cyanide in the groundwater and storm water discharges from Outfalls
005, 011 and 013. However, over this eight-year period, DWR has not acted on this
information as required under the Clean Water Act. See 33 U.S.C. § 1317(a)(2); 40
C.F.R. § 401.15. Instead, DWR has chosen to overlook the obvious signs of aquatic
pollution and contamination. The cause of this contamination requires further
investigation by DWR. However, at this moment there is compelling evidence to suggest
that the parameters of concern emanate directly from the contaminated Alcoa-Badin
Works site, and especially from the Alcoa-Badin Landfill. For example, Outfall 005 is
located down gradient and directly east of the Alcoa-Badin Landfill and discharges into
Little Mountain Creek. Alcoa's DMRs suggest that cyanide and fluoride are emanating
from some source up gradient of the Outfall and contaminating the discharge. This would
lead one to suspect that Outfall 005 is discharging a toxic cocktail of contaminants
emanating from the landfill directly adjacent to the Creek.
Fluoride is also a contaminant of concern that has been discharged without
significant limitation into Little Mountain Creek and Badin Lake for the past eight years.
Alcoa's 2008 NPDES permit requires routine monitoring of fluoride from Outfalls 005,
011, 012, and 013; however, the permit only establishes a numeric effluent limitation for
fluoride for Outfall 013. While the 2008 permit merely suggested that Alcoa monitor the
discharges of fluoride into Little Mountain Creek and Badin Lake, DWR has
recommended in the 2015 proposed permit that freshwaters fitting the aquatic life
classification should have numeric effluent limitations for fluoride. Fact Sheet at 6.
Specifically, DWR has suggested that the appropriate freshwater chronic water quality
standard is 1.8 mg/L for fluoride. Id.
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A review of Alcoa DMRs from 2008 to 2015 suggests that discharges from
Outfalls 005, 011, and 013 exceeded this fluoride standard eighty-seven times between
2008 and 2015. As with cyanide, the number of exceedances for fluoride was greatest at
Outfall 005. Recorded discharge samples from Outfall 005 exceeded the recommended
limit of 1.8 mg/L sixty-nine times between September 2008 and March 2015. The
average recorded fluoride level over this time frame was 3.64 mg/L. This concentration is
twice the EPA recommended level for fluoride in freshwaters with aquatic life. Alcoa's
DMRs also suggest that discharges exceeded acute toxic levels for freshwater once
during the reviewed period.
Outfall 011, deemed by DWR to fit the same water quality classification as
Outfall 005, id., also discharged fluoride into its receiving water in excess of the
applicable water quality standards. Between 2009 and 2015, six out of the fifteen DMRs
with measurable discharges from Outfall 011 contained fluoride concentrations greater
than 1.8 mg/L. Due to Alcoa's recording practice of counting any fluoride concentration
less than 1 mg/L as a zero in their DMRs, it is impossible to calculate an average fluoride
concentration from Outfall 011. However, DWR has estimated that the average fluoride
concentration per discharge between January 2009 and March 2014 to be 2.1 mg/L, a
concentration exceeding the recommended level.Id. at 8.
Outfall 013 in the 2008 NPDES permit had a weekly fluoride effluent limit of 1.8
mg/L. This concentration was exceeded three times between 2010 and 2011, resulting in
three notices of violations and consequent civil penalties. Between 2008 and 2011, Alcoa
had twelve instances in which chronic freshwater aquatic toxicology concentration limits
were exceeded. DWR has proposed to remove fluoride effluent limitations from the 2015
proposed permit for Outfall 013 based on an inadequate record of compliance since
Alcoa's repairs in 2011. This is unacceptable, as the outfall has a history of fluoride
discharge and maintaining effluent limitations would not unduly burden the permittee or
the regulating agency. By removing the effluent limitation for fluoride, DWR has in
effect removed its own enforcement mechanism for ensuring safe fluoride discharge
levels at Outfall 013.
a. The DMR Analysis Comports with DWR's Own Reasonable Potential
Analysis Results Cited in the Draft 2015 NPDES Permit
The results from the reasonable potential analysis (RPA) conducted by DWR for
Outfalls 005, 011, and 013 between 2012 and 2014 support the conclusions of consistent
cyanide and fluoride contamination from Alcoa's DMRs. During an RPA, the regulating
agency collects discharge samples monthly at the discharge point and analyzes those
samples to create a record on which the permitting agency can then make alterations to
the previous permit.
The RPA for Outfall 005 indicated that between 2012 and 2014, mean cyanide
levels measured 17.04 µg/L with a max value of 54 µg/L. Freshwater Reasonable
Potential Analysis, Outfall 005 (2014). Fluoride levels during this same period were also
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elevated at Outfall 005. At this outfall, mean fluoride concentrations measured 4.50 mg/L
with a max value of 26.0 mg/L. Id. These values are both above EPA recommended
concentrations and clearly confirm a legacy of noncompliance with the spirit of the Clean
Water Act.
RPA cyanide and fluoride levels from Outfall 011 and 013 also mirrored average
DMR levels. The RPA mean cyanide concentration from Outfall 011 was 17.86 µg/L
with a max concentration of 170 pg/L. Freshwater Reasonable Potential Analysis, Outfall
011 (2014). Average fluoride levels measured 2.16 mg/L with a max of 10.0 mg/L.Id.
The average cyanide concentration of Outfall 013 during the RPA period measured 6.33
µg/L, with a maximum recorded value of 46.0 µg/L, Freshwater Reasonable Potential
Analysis, Outfall 013 (2014).
DWR's RPA data provides more evidence that elevated levels of highly-toxic
contaminants have been and continue to be released into Little Mountain Creek and
Badin Lake from the outfalls at the Alcoa-Badin Works site. Alcoa and DWR have
known about this contamination for years, yet have not acted to remedy the problem and
protect environmental and public health.
b. Additional Information Shows that the Alcoa-Badin Works Site Is
Contributing to Water Quality Standard Violations and the
Impairments of Little Mountain Creek and Badin Lake.
The water quality violations indicated by Alcoa's DMRs and by DWR's RPA
results are confirmed by sampling conducted by other parties, including sampling by
Alcoa's own consultants for the company's RCRA permitting. For example, a 2004
report finds that Alcoa has likely contributed to the impairment of Little Mountain Creek
(discussed below), explaining:
The ALCOA facility has had historical concerns with toxicity in their
stormwater and cooling water discharges into an unnamed tributary of
Little Mountain Creek. According to NCDWQ, the plant has frequent
water quality standard violations for cyanide and fluoride. Although the
ALCOA facility closed in 2002, there are reports that the facility continues
to discharge into the Little Mountain Creek HU with apparent permit
violations. Additional water quality investigations are needed to determine
the impacts from ALCOA's discharges.
HDR Engineering, Inc., Preliminary Findings & Recommendations Report 2-27 (2004)
(prepared for the North Carolina Ecosystems Enhancement Program).
Two additional reports prepared on behalf of Alcoa indicate elevated levels of
cyanide and fluoride emanating from the Alcoa-Badin Landfill (SWMU No. 2), but
downplay the extent of the potential contamination and claim that"control of the
[pollution] source has been achieved." Environeering, Inc., Phase 4—Corrective
Measures Alternatives and Phase 5 —Justification and Recommendation of the Selected
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Corrective Measure Alternative for the Corrective Measures Study, Badin Works Facility
4-5, 25 (2013) [hereinafter Phase 4 & 5]; Environeering, Inc., Phase 3 —Engineering Data
Collection for the Corrective Measures Study, Badin Works Facility 46 (2012)
[hereinafter Phase 3].
One reason for the reports' ability to downplay the noted concentrations of
cyanide and fluoride is the location of the monitoring wells that likely do not collect the
full extent of the leachate emanating from the landfill, and therefore do not accurately
reflect actual impacts the landfill has on Little Mountain Creek and the Yadkin River. For
decades, the approximately fourteen-acre landfill accepted both household wastes from
the West Badin community as well as Alcoa's hazardous wastes, including spent potliner,
produced at the smelting plant. Alcoa, Interim Measures Workplan, Alcoa-Badin Landfill
(SWMU#2), Regrading and Cover System Installation 1, 3 (1997). Among the hazardous
wastes produced in the smelting process and likely discarded in the landfill are fluoride,
benzo(a)pyrene, mercury, cyanide, lead, and polycyclic aromatic hydrocarbons
("PAHs"). See EPA, Proposed Best Demonstrated Available Technology(BDAT)
Background Document for Spent Aluminum Potliners-K088, at iii (2000),
http://www.epa.gov/osw/hazard/tsd/ldr/k088/k088back.pdf; EPA ECHO, Detailed
Facility Report (2013), available at
http://echo.epa.gov/detailed_facility_report?fid=110017425614; see also, e.g., EPA,
Toxics Release Inventory Reporting, available at
http://oaspub.epa.gov/enviro/trisquery.dcn_details?tris_id=28009LMNMCHWY74.
Because of the landfill's composition, adequate monitoring well location and sampling in
crucial.
As the Riverkeeper explained in its 2014 Petition for Preliminary Assessment:
As part of the Preliminary Assessment, we recommend that EPA locate,
install, and monitor three additional monitoring wells to be placed south of
the landfill (in the alluvium) to determine whether the unlined landfill may
be a source of contamination in Little Mountain Creek. Approximately
forty wells actively monitor the groundwater flowing into Badin Lake.
However, we believe that the groundwater in the southern part of the
plant, flowing from beneath SWMU 2 into Little Mountain Creek, is
insufficiently monitored. Of the six monitoring wells around the perimeter
of the landfill, only three...are located in positions that allow for
monitoring of water leaving the landfill.
Yadkin Riverkeeper, Inc., Request for Preliminary Assessment for Areas
Surrounding Alcoa Badin Works Facility in Badin,North Carolina 26 (2014).
The unlined landfill's geology and hydrology creates a conduit for water to flow
through the landfill and to contact waste materials. The landfill is a dump on a hillside,
with no control of discharges through seepage at the toe, a fact readily observable from
review of Alcoa's consultant's reports to DWM. As the Riverkeeper further explained in
its 2014 Petition for Preliminary Assessment:
11

In general, the flow of groundwater through the Alcoa-Badin Landfill
follows topography. Groundwater flows from north to south through the
Alcoa-Badin Landfill, towards Little Mountain Creek. The water table in
this area is relatively close to the surface—in several places it is merely a
few feet from the surface. Along the southwestern side of the landfill,
groundwater actually intersects with some of the waste material...Notably,
at the western tip of the landfill [ ], the water table elevation occasionally
rises to just inches below the ground surface. This results in an area of
deep mud and some standing water.
Id. at 10-11 (citing MFG, Inc., RCRA Facility Investigation Report, Volume I of
II, at 106 (2001) (prepared for Alcoa, Inc.). The following diagram illustrates the
landfill's topography and the challenge it poses for controlling discharges
containing hazardous substances.
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Geraghty&Miller, Inc., Groundwater Flux Determination Aluminum Company of
America Badin Landfill Badin Works Facility Badin,North Carolina 28 (1997) (included
as Appendix A-4 of Alcoa, Interim Measures Workplan, Alcoa-Badin Landfill (SWMU
#2), Regrading and Cover System Installation (1997)).
Groundwater from Alcoa-Badin Works Plant Area was acknowledged by Alcoa's
consultants as a source of numerous constituents of concern, many of which can be found
in the permitted outfalls when one takes the time to look for them. As early as 1997,
12

Alcoa's consultants identified Contaminants of Potential Ecological Concern emanating
from the Alcoa-Badin Works site, including polychlorinated biphenyls,polycyclic
aromatic hydrocarbons, lead, selenium, arsenic, cadmium, chromium, fluoride, and
cyanide. Woodward-Clyde, Preliminary Sediment and Water Sampling Results from
Alcoa's Badin,North Carolina Works 30 (1997) (draft report). The Superfund
Preliminary Assessment Petition found levels of other contaminants in the areas not being
evaluated by DWM or Alcoa for the RCRA response work. As further testing is done by
Alcoa and DWM, these additional contaminants of concern may need to be added to this
permit. It is critical for staff from DWM and DWR to share information about this
ongoing work.
Alcoa's later consultants "identified multiple constituents of concern in
groundwater along the northeast side of the main plant" during the RCRA Facility
Investigation process. Phase 3 at 8. These constituents of concern include cyanide,
fluoride, arsenic, trichloroethene (trichloroethylene or TCE), and trichloromethane
(chloroform). Phase 4 &5 at 5. "Phase 3 groundwater sampling results identified
available cyanide, fluoride, and trichloroethene at concentrations above the 2L Standard.
Trichloromethane was not detected at a concentration above the 2L standard during the
Phase 3 investigation in any well sampled."Id. These findings, in part, correspond to
DWR's recognition that"[t]richloroethene was detected in the groundwater at
concentrations greater than the water quality criteria," for Outfalls 011 and 012, which
presumably are the conveyances for the contaminated groundwater sampled during Phase
3. Letter from Teresa Rodriguez,N.C. Div. of Water Res., to Mark J. Gross, Alcoa-Badin
Works Plant Manager, Draft NPDES Permit Renewal Permit NC0004308 (Jan. 27, 2015)
(attached to the 2015 proposed NPDES permit) [hereinafter Letter from Teresa
Rodriguez].
Based upon these considerations and the DMR and RPA data, it is clear that
Alcoa's former smelting site and associated facilities continue to degrade the surrounding
waters covered by the proposed NPDES permit. Nothing in the 2015 proposed permit
materials suggests that Alcoa has taken substantive steps to control its pollutant releases,2
and nothing in the permit materials suggests that DWR has consulted with the Division of
Waste Management, the office overseeing Alcoa's RCRA compliance and the recipient
of the above-cited reports, to verify what Alcoa has or has not done under the RCRA
program. The proposed permit materials also do not indicate that DWR has reviewed any
2 The absence of this information in the proposed permit materials is not surprising since
Alcoa has yet to implement any RCRA remediation measures identified in its draft Phase
4 and 5 Corrective Measures Study("CMS"). Alcoa submitted its combined Phase 4 and
5 CMS on January 30, 2013, and responded to the DWM's comments on the CMS on
May 27, 2014, indicating that it would issue the final CMS at a later date. Alcoa has not
submitted its final CMS as of the date of this comment letter, and there has been no
additional correspondence between DWM and Alcoa regarding the CMS. See CARA
Portal, available at https://edm.nc.gov/DENR-Portal/(search by ID 003162542). Still,
DWR explicitly should address whether Alcoa has taken any steps to control its pollutant
discharges and how this consideration factors into the proposed permit requirements.
13

of the RCRA reports cited herein. This lack of coordination between DWR and DWM
was reflected in the 2010 contested case hearing testimony of Rob McDaniel, DWM,
who testified that DWR(then the Division of Water Quality) routinely did not
communicate water quality violations or other relevant permitting issues to DWM.
Hearing Transcript, Yadkin Riverkeeper, Inc. v. N.C. DENR, Div. of Water Quality, 09
EHR 3179, at 3031-32 (N.C. OAH Nov. 15, 2010). It is clear that further coordination
between DWR and the Division of Waste Management is needed to ensure that DWR has
complete information for permitting decisions. It is equally clear that each of the
identified pollutants should be monitored, and appropriate numeric effluent limitations
should be set according to monitoring results.
E. The Draft 2015 NPDES Permit Proposes to Decrease the Already-Insufficient
2008 Requirements in Contravention of the Clean Water Act
Although the 2008 permit failed and continues to fail at protecting the affected
water bodies, the 2015 proposed permit rolls back both discharge and monitoring
requirements, and fails to adequately explain DWR's reasoning for such changes,
contrary to the Clean Water Act. The reductions in effluent limitations and monitoring
requirements is prohibited by the Clean Water Act NPDES program's anti-backsliding
provisions; the proposed permit makes no attempt at justifying or explaining why such
reductions are suggested, and therefore why these reductions would fit into the narrow
exceptions from the anti-backsliding provisions. 33 U.S.C. § 1342(o).
The previous 2008 permit provided established effluent discharge limits and
monitoring requirements for ten total outfalls, six of which were subdivided to have
distinct water quality and monitoring requirements for their stormwater and non-
stormwater discharges. Presumably, these stormwater and non-stormwater discharges
were conveyed through a single outfall. For clarity, this comment letter refers to the
outfalls with dual permitting requirements as distinct; therefore, the 2008 permit covered
sixteen outfalls.
The 2015 proposed permit, however, eliminates stormwater Outfalls 505, S11,
S12, and S19 without explanation. The proposed permit further re-categorizes Outfalls
002 and 004, non-stormwater outfalls, as stormwater outfalls on the premise that they no
longer discharge groundwater.3 This explanation fails to take into account that these
outfalls were discharging more than groundwater. In fact, they were discharging and
continue to discharge fluoride, chlorine, aluminum, and cyanide—none of which are
typical stormwater constituents.
To address these non-stormwater components in stormwater outfalls, the proposed
permit calls for less frequent monitoring for aluminum, cyanide, and fluoride.
Specifically, the monitoring requirements for new Outfall S02 (referred to as stormwater
Outfall 002 in the draft permit) reduces the previous monthly monitoring requirement for
3 The draft permit also breaks from the 2008 naming convention by continuing to refer to
these outfalls as Outfalls 002 and 004 rather than S02 and SO4.
14

fluoride coming from non-stormwater sources to a semi-annual monitoring requirement.
The new Outfall SO4 (referred to as stormwater Outfall 004 in the draft permit)reduces
the monitoring frequencies for aluminum, cyanide, and fluoride from monthly to semi-
annual. The proposed permit provides no explanation for these less stringent monitoring
requirements.
Unexplained reductions in monitoring and effluent requirements is common
theme throughout the proposed permit. The following are among the reduced
requirements suggested in the proposed permit:
• Quarterly monitoring rather than monthly monitoring for aluminum at Outfall
005
• Quarterly monitoring rather than monthly monitoring for aluminum and
fluoride at Outfall 012
• Monthly monitoring instead of twice-monthly monitoring for cyanide at
Outfall 012
• Quarterly monitoring instead of twice-monthly monitoring for cyanide at
Outfall 013
• Quarterly monitoring instead of monthly monitoring for aluminum at
Outfall 013
• Quarterly monitoring for fluoride instead of an effluent limitation of 1.8 mg/L
weekly average, to be measured twice per month, at Outfall 013
• Semi-annual monitoring instead of quarterly monitoring for aluminum,
cyanide, and fluoride at Outfall 019
Equally disturbing is the fact that the few outfalls that have actual numeric
effluent limitations are subject to a three-year"schedule of compliance"which renders
these limits unenforceable. Therefore, the Alcoa would be allowed to discharge unlimited
amounts of cyanide and fluoride from Outfalls 005, 011, 012, and 013 for three years,
which constitutes another instance of less stringent permit requirements contrary to the
CWA. Given the above analysis of Alcoa's DMRs, outfalls with known cyanide, fluoride,
TCE, and aluminum discharges should have numeric effluent limits assigned, not mere
monitoring requirements. This is especially true for Outfalls 011 and 012 where DWR
has recognized that TCE levels in discharging groundwater have exceeded water quality
criteria. Letter from Teresa Rodriguez at 2. Although the proposed permit describes
DWR's Qualitative Monitoring Response in the event that monitoring indicates water
quality problems, DWR has yet to take the initiative to respond to water quality problems
known since 2008. Therefore there is little reason to believe that DWR will take
substantive steps to require additional actions by Alcoa in the absence of enforceable,
numeric effluent limitations effective immediately.
Further, based on the language of this proposed permit, Alcoa also does not have
to take any steps to ensure that these permit limits are met. The term "schedule of
compliance" suggests that the permittee is being given time to take specified measures to
15

ensure future compliance. Here, the term is simply means that Alcoa is inexplicably
being exempted from regulation despite corroborated sampling data showing continual
cyanide and fluoride water quality standards violations and discharges above the criteria
needed to protect water quality. The purpose of NPDES permits is to eliminate harmful
water discharges, not insulate them from liability with a three year permit shield.
Little Mountain Creek, a receiving stream for these permitted discharges, is an IR
Category 5 water on North Carolina's 303(d) list for impaired waters.NC DENR, 2014
Category 5 Water Quality Assessments-303(d) List, available at
http://portal.ncdenr.org/c/documentlibrary/getfile?uuid=28b97405-55da-4b21-aac3-
f580ee810593&groupld=38364. As a Category 5 water, the State of North Carolina is
required to establish a TMDL or TMDL alternative for Little Mountain Creek. See
NCDENR,North Carolina TMDL Program, available at
http://portal.ncdenr.org/web/wq/ps/mtu/tmdl. During the interim time between 303(d)
listing and TMDL establishment, federal CWA regulations enacted to fulfill the CWA's
objective to restore and maintain the chemical, physical, and biological integrity of the
nation's waters ensure that impaired waters are not further degraded before a TMDL is
complete. 40 C.F.R. § 122.4(i) (prohibiting the net increase of any pollutant that will
cause or contribute to a numeric or narrative water quality standard violation); 40 C.F.R.
§ 122.44(d) (requiring effluent limits in permit to ensure that discharges do not cause,
have a reasonable potential to cause, or contribute to the violation of a numeric or
narrative water quality standard). Although DWR has yet to establish a TMDL or TMDL
for Little Mountain Creek, its impaired status clearly indicates that the proposed NPDES
permit cannot reduce effluent and monitoring limitations, and that such reductions run
contrary to the purpose of the TMDL and NPDES programs.
The proposed permit contravenes the Clean Water Act's anti-backsliding
provisions and Act's intent by allowing for unjustified and unexplained reductions in
effluent limits and monitoring requirements despite evidence of impairment. For this
reason DWR must deny the permit as proposed and implement the suggestions described
in the following sections.
II. Additional New Evidence Shows Impairment of Aquatic Life and Water Quality
Standards both in Badin Lake and Little Mountain Creek
In April 2015, the Yadkin Riverkeeper commissioned additional water, sediment,
macroinvertebrate, and fish tissue sampling for three sites along Little Mountain Creek.
The results revealed elevated levels of fluoride, lead, cyanide, heavy metals, and PCBs4
4 Fish tissue sampling results from Little Mountain Creek indicated extremely high PCB
concentrations in fish commonly caught by subsistence fishermen. Per EPA's monthly
fish consumption limits for PCBs, people should not consume fish with PCB
concentrations equivalent to the sampled fish in amounts more than 0.5 fish meals per
month. EPA, Guidance for Assessing Chemical Contaminant Data for Use in Fish
Advisories 4-26 (2000).
16

throughout the stream; the potential for chronic ecological and health effects; and the
need for increased routine monitoring.
Specifically, the water sampling found lead concentrations at levels significantly
greater than EPA's aquatic life criteria, and cyanide levels in exceedance of EPA's
aquatic life criteria. Similarly, elevated levels of lead and zinc were found in fish tissue.
The elevated levels of these contaminates, all of which are associated with aluminum
smelting, and the location of the landfill and outfalls all indicate that the landfill is
discharging these pollutants into Badin Lake and Little Mountain Creek both through the
outfalls and groundwater seeps.
These continual pollution discharges affect both local and downstream areas. For
example, the waters immediately downstream of Alcoa's site, including Lake Tillery, are
Category 5 waters listed on North Carolina's 303(d) list for PCBs in fish tissue.
NCDENR, 2014 Category 5 Water Quality Assessments-303(d) List, available at
http://portal.ncdenr.org/c/document_library/get_file?uuid=28b97405-55da-4b21-aac3-
f580ee810593&groupld=38364. Discharges made under the current and future NPDES
permits will directly affect these already-degraded downstream waters. DWR's response
to this consideration and the available pollution data should be to deny the proposed
permit and instead take the additional steps outlined in Part IV of this comment letter.
III.Impairment of Aquatic Life and Water Supply Waters Directly and Negatively
Impacts Human Health
The contaminants found during the above-described sampling events and
recognized in the proposed permit all pose human health risks. The ultimate goal of the
NPDES permitting program is to eliminate pollution discharges into waterways, which in
turn eliminates the human health risks that result from environmental exposure to the
permitted contaminants. DWR must develop NPDES permits to reduce or eliminate such
human health risks.
PCBs have been shown to cause cancer and disrupt immune system, reproductive
system, nervous system, and endocrine system disruptions. EPA,Health Effects of PCBs,
available at http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/effects.htm. Human
studies indicate that PCBs affect humans in similar ways, and that PCB-related health
effects in one system may have significant implications for other bodily systems. Id. PCB
contamination in waterways poses an additional threat to humans because it
bioaccumulates in fish tissue, greatly increasing the concentration of PCBs ingested by
humans who eat the contaminated fish. EPA,Basic Information, available at
http://www.epa.gov/epawaste/hazard/tsd/pcbs/about.htm. PCB exposure "pose health
risks that are of particular concern for fetuses and young children due to their neurotoxic
and developmentally toxic effects and the propensity for these chemicals to cross the
placenta and to contaminate breast milk." Catherine E. LePrevost et al.,Need for
Improved Risk Communication of Fish Consumption Advisories to Protect Maternal and
Child Health: Influence of Primary Informants, 10 Int'l J. Envtl. Research & Pub. Health
1720-34 (2013), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3709344/
17

(discussing the Badin Lake fish advisory and efficacy of the fish consumption advisory
signs in particular). Such effects include deficits in motor skills and short-term memory
in infants. Id.
Further, in communities such as Badin, a significant portion of the population
relies on subsistence fishing to meet its weekly food needs, and therefore consumes a
greater amount of fish than does the general population. Exposure to PCB-laden fish is
only worsened by the fact that there is no fish consumption advisory for Little Mountain
Creek, and the existing PCB fish consumption advisory for Badin Lake consists of a
couple easily-overlooked signs. Thus the population in Badin stands to be
disproportionately affected by PCB contamination in the Yadkin's waterways.
In addition to PCBs,people coming into contact with Badin's surrounding waters
also risk acute and chronic exposure to cyanide, fluoride, lead, and TCE. People exposed
to small amounts of cyanide by ingesting it or absorbing it through their skin might
experience dizziness, headache, nausea and vomiting, rapid breathing, rapid heart rate,
restlessness, and weakness. CDC,Facts about Cyanide, available at
http://www.bt.cdc.gov/agent/cyanide/basics/facts.asp. Exposure to larger amounts of
cyanide might result in convulsions, unconsciousness, low blood pressure, lung damage,
respiratory failure leading to death, and a slowed heart rate.Id. Long-term exposure may
result in heart, brain, and nerve damage.Id.
Fluoride, while considered safe and even beneficial at low doses, can lead to an
increased likelihood of bone fractures and skeletal fluorosis with elevated exposure.
CDC, Community Water Fluoridation FAQs, available at
http://vvww.cdc.gov/fluoridation/faqs/#overexposurel.
Lead poisoning resulting from short-term overexposure might result in abdominal
pain, constipation, tiredness, headache, irritability, loss of appetite, memory loss, pain or
tingling in the hands or feet, and weakness. CDC,Health Problems Caused by Lead,
available at http://www.cdc.gov/niosh/topics/lead/health.html. Prolonged exposure to
lead might result in many of the same symptoms,but also high blood pressure, heart
disease, kidney disease, and reduced fertility. Id.
Lastly, studies have linked both short- and long-term exposure to TCE with
various types of cancers, including cancers of the kidney, liver, cervix, and lymphatic
system, as well as to liver, kidney, immunological, endocrine, and developmental
problems. EPA, Trichloroethylene, available at http://www.epa.gov/ttnatwO1/hlthef/tri-
ethy.html; Weihsueh A. Chiu et al.,Human Health Effects of Trichloroethylene: Key
Findings and Scientific Issues, Envtl. Health Perspectives 303-11 (2013), available at
http://ehp.niehs.nih.gov/1205879/.
By relaxing effluent and monitoring standards in the proposed 2015 permit, DWR
is guaranteeing that the Badin community and other individuals using the affected waters
will be exposed to elevated and unknown amounts of the above contaminants. The above
list of contaminants is not exhaustive and only incomplete information is known about
18

the full extent of pollution draining into the Yadkin waterways. For these reasons DWR
should deny the proposed permit, conduct further investigation as to the extent and scope
of the pollution, and initiate an enforcement action as explained in the following section.
IV.The Solution Is for DWR to Deny Alcoa's NPDES Permit Application,
Investigate the Sources of Groundwater Contamination and Set Stringent Limits
on Existing Outfalls While NC DENR Investigates the Sources
Despite having received and presumably reviewed evidence indicative of
continued water quality violations and degradation, DWR has failed to regulate Alcoa
through its NPDES permit in a meaningful way. DWR at most has assessed minimal civil
fines against Alcoa, and now proposes to grant Alcoa an impermissibly lax permit.
Accordingly, Alcoa has had little incentive to take meaningful remediation actions and
has failed to correct the pollution problems that it has created for nearly 100 years.
As illustrated in the previous sections, the available information strongly indicates
that a major source of pollution to Little Mountain Creek and the Yadkin River is the
Alcoa-Badin Landfill. Its geology and associated hydrology makes it impossible for the
existing outfalls to discharge waters that meet EPA's and North Carolina's water quality
standards. For this reason, DWR should deny Alcoa's proposed NPDES permit, and
instead institute an enforcement action to ensure that Alcoa takes the necessary steps to
remediate its sources of pollution within a reasonable timeframe. Such enforcement
action should clarify whether Alcoa would remain liable for the required remediation
efforts upon any sale of the affected property, or whether new owners would assume
liability. Institutional controls, such as the existing Badin Lake fish consumption
advisory, are not sufficient given the ubiquity of the contamination, the remaining
unknowns about the variety and true extent of the contamination, and the community's
dependence upon these waterways for subsistence fishing. A new NPDES permit with
requirements at least as stringent as the 2008 permit might be issued upon successful
completion of the enforcement action requirements.
A. Options for Remediation
Although the available sampling data and reports clearly indicate that hazardous
pollutants are migrating from Alcoa's former smelter site and associated areas, such as
the Alcoa-Badin Landfill, and into Little Mountain Creek, Badin Lake, and the Yadkin
River, the full extent and specific composition of these hazardous materials remains
unknown. The Alcoa-Badin Landfill is of particular concern and importance. What is
known is that Alcoa produced an estimated annual generation of 4800 tons of waste,
which was stored in waste piles and buried from the early 1900s to the late 1970s. A.T.
Kearney, Inc. &DPRA, Inc., Interim RCRA Facility Assessment Report, at II-11 (1990)
(prepared for Ms. Rowena Sheffield of EPA Region IV); Law Envtl., Phase II Ground-
Water Assessment Northwest Valley, Alcoa-Badin Works, Badin,North Carolina 1-1
(1990). One of these hazardous waste disposal locations was the Alcoa-Badin Landfill.
19

Competent permitting and regulation of this site through the NPDES process
requires that DWR understand the pollution sources that are degrading permitted
waterways. The way to gain this understanding is to complete a waste characterization
study of the landfill before making further permitting decisions. DWR could conduct a
waste characterization study itself; DWR could require that Alcoa conduct a waste
characterization study and include the final report with a new NPDES permit application;
or DWR could require a waste characterization study through the Special Order process,
as explained in Part B below. Regardless of the method used, DWR must figure out what
is degrading the Yadkin's waterways and take appropriate steps based on this
information.
Upon completion of the waste characterization study, one option to address the
contaminated discharges is to remove the outfalls that drain the Alcoa-Badin Landfill.
This option, however, assumes that the leachate that currently drains from the landfill
could either be eliminated or otherwise redirected for collection and proper hazardous
waste disposal. This option also could be used in conjunction with the other options
described below.
A second option is to install technology to remove and treat the groundwater
contaminants identified in the waste characterization study, and most likely cyanide,
fluoride, PCBs, lead, and aluminum. This step also might be paired with the installation
of a constructed treatment wetland and removal of hazardous waste materials. See EPA,
Guiding Principles for Constructed Treatment Wetlands (2000), available at
http://water.epa.gov/type/wetlands/constructed/upload/guiding-principles.pdf; EPA,
Constructed Treatment Wetlands (2004), available at
http://www.epa.gov/owow/wetlands/pdf/ConstructedW.pdf. DWR could require that
Alcoa identify the best available technology effluent removal and submit a proposal to
DWR that outlines the technical specifications, expected contaminant removal, and
reasonable timeline for installation. This technology requirement could be incorporated
into an NPDES permit or required through the Special Order process.
A third option would be to contain and treat the pollution leaching from the
Alcoa Badin-Landfill. Containment could be evaluated is to install an impermeable liner
that would prevent wastes mixing with groundwater and would prevent surface water
from leaving the landfill. Because of the landfill's hazardous waste components, Alcoa
would at a minimum need to install a double liner; double leachate collection and
removal systems ("LCRS"); a leak detection system; run-on, runoff, and wind dispersal
controls; and develop a construction quality assurance program. See EPA,Hazardous
Waste Land Disposal Units (LDUs), available at
http://www.epa.gov/solidwaste/hazard/tsd/td/index.htm; Kerry L. Hughes, Ann D.
Christy&Joe E. Heimlich,Landfill Types and Liner Systems, Extension FactSheet
CDFS-138-05, available at http://ohioline.osu.edu/cd-fact/pdf/0138.pdf. In addition,
Alcoa would need to address how such a liner would succeed in containing the landfill's
hazardous substances in light of the landfill's challenging topography. Since disturbing
the landfill's contents would be necessary to install the needed equipment, a plan for
minimizing dust and air contamination should be required as well.
20

A fourth option is to remove the waste from the improperly designed and
constructed landfill. This would be done by hiring a contractor certified for hazardous
waste remediation to remove the hazardous waste components and transport them to one
of North Carolina's Treatment, Storage or Disposal ("TSD") facilities for treatment
and/or disposal. See NC DENR, Geographic Information Systems, Hazardous Waste TSD
Interactive Map, available at http://portal.ncdenr.org/web/wm/gis/maps. Since installing
a liner would require staged excavation and continual monitoring, simply removing the
landfill is a logical alternative solution that would not require extensive ongoing
monitoring and maintenance by Alcoa. Removing the hazardous landfill materials would
provide a permanent solution to the ongoing pollution problems in Little Mountain Creek
and the surrounding waterways, and ultimately would reduce the regulatory burden on
DWR since the permitted outfalls around the landfill would no longer be needed.
EPA has provided remediation guidance for sites with contamination that has
permeated sediments and leached into surrounding waters. EPA, Contaminated Sediment
Remediation Guidance for Hazardous Waste Sites (2005), available at
http://www.epa.gov/superfund/health/conmedia/sediment/pdfs/guidance.pdf. This
guidance, in part, is based upon remediation activities at more than sixty large sites which
include a wide variety of contaminants including PCBs, metals, and PAHs.
In addition, domestic sites similar to Alcoa's have been or are in the process of
being remediated. For example, the Recycled Aluminum Metals Company site near
Dallesport, Washington, is currently undergoing remediation activities that includes the
physical removal of its unlined landfill by excavation. See, e.g.,Dept. of Ecology,
Recycled Aluminum Metals Co, available at
https://fortress.wa.gov/ecy/gsp/Sitepage.aspx?csid=3658 [hereinafter Ecology]; Dept. of
Ecology, Interim Remedial Action Plan RAMCO Aluminum Waste Disposal Site (2006),
available at https://fortress.wa.gov/ecy/gsp/CleanupSiteDocuments.aspx?csid=3658. The
site is located about 400 feet from Spearfish Lake and about 1000 feet north of Lake
Celilo, the portion of the Columbia River that is impounded by the Dalles Dam. Ecology.
During RAMCO's operation from 1982 to 1993, the company extracted residual
aluminum from materials received from smelters, and from 1982 to 1989 buried the
produced wastes, including spent potliner, in an unlined landfill. Ecology; Ecology&
Env't, Inc., Focused Sampling Assessment and Removal Action Report(2011), available
at https://fortress.wa.gov/ecy/gsp/CleanupSiteDocuments.aspx?csid=3658 [hereinafter
Action Report]. Groundwater, surface water, and sediment sampling revealed water
quality standard violations for metals, cyanide, fluoride, PCBs, and numerous other
contaminants. Action Report at 4. Removal activities were conducted in 2010, and
monitoring continues. Ecology; Action Report.
Regardless of the regulatory method(s) chosen, what is clear is that DWM and
DWR's regulatory programs are inextricably linked at this site as a current RCRA
SWMU is contributing to the hazardous effluents passing through NPDES-permitted
outfalls. All outfalls, monitoring wells on the site and receiving waters must be tested for
all the contaminants of concern, regardless of the options adopted by NC DENR to
21

address this site. There is no way to effectively implement the NPDES program and to
meet CWA requirements without DWR making a concerted effort to coordinate
permitting work with DWM to address the pollution sources themselves.
B. DWR Has the Authority to Institute an Enforcement Action that
Incorporates the above Options and to Enforce the Provisions of Future
NPDES Permits
DWR has been granted the statutory and regulatory authority necessary to deny
the proposed permit, institute an enforcement action, and then issue a new NPDES permit
that effectively protects water quality. Given Alcoa's extensive history of water quality
violations and continued pollution discharges under the current 2008 NPDES permit, an
enforcement action is the appropriate remedy after denying the proposed permit.
Accordingly, DWR could initiate a Special Order("SO"), which would require
DWR to coordinate with and provide the relevant permitting and water quality violations
information to the Environmental Management Commission. See N.C. Gen. Stat. §§
143B-215.2, -282. Should Alcoa agree to protect these waters, it could obtain a Special
Order by Consent ("SOC"). Either option also would allow for DWR to conduct its own
sampling to better identify the full range and extent of contaminants around Alcoa's site.
Under the SOC option, DWR would cooperatively create a plan with Alcoa that outlined
the locations that need to be remediated, the pollutants that need to be remediated, the
schedule for completing remediation,penalties for past and continued water quality
violations, penalties for noncompliance with the SOC conditions, and reporting
requirements. This plan would be formalized in a Commission order. Under the SO
process, the Commission would issue a similar order based upon its own findings.
Upon issuance of a future, post-enforcement action NPDES permit, DWR retains
broad authority to monitor and enforce permit conditions. Specifically, DWR is
authorized to conduct compliance inspections, take enforcement actions including issuing
administrative orders that require permittees to correct violations and the payment of
monetary penalties, and even pursue civil and criminal actions for permittees "found
willfully violating requirements and endangering the health and welfare of the public or
environment."NCDENR,NPDES Program FAQs, available at
http://portal.ncdenr.org/web/wq/swp/ps/npdes/fags#CP1. The Qualitative Monitoring
Response on page twelve of the proposed permit reflects these authorities and DWR's
understanding of its duty to enforce permit conditions.
DWR has the duty to use these permitting and enforcement authorities to issue
NPDES permits protective of the environment and human health, and to ensure that those
permit conditions are met by permittees. DWR's failure to use these delegated powers is
a breach of its administrative duty. While pursuing any of these other options for
remediation, DWR should not issue the draft permit, but instead should require
monitoring for all known contaminants of concern at all outfalls and all on-site
monitoring wells for the life of this permit. In addition, WQBEL for cyanide, lead,
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fluoride, mercury, and PCBs should be applied to all known outfalls until a permanent
solution to this contamination problem is identified.
V. Conclusion
Unknowns about the extent of the contamination in these water bodies exist
because of DWR's failures to live up to its statutory and regulatory obligations. The
extent of the contamination remains unknown due to a lack of will on the part of DWR
staff in prior years to enforce the CWA; coordinate with DWM; and demand that Alcoa
conduct adequate testing and take action according to the sampling results. Other states,
including Idaho, New Hampshire, and Massachusetts, have set straightforward WQBEL
for the same pollutants at their groundwater remediation sites. North Carolina's laws
impose upon DWR greater duties to protect water quality than does the CWA, which
serves as a regulatory floor. The proposed permit rewards past violations with reduced
regulatory requirements and is not supported by the factual record or applicable laws.
Very Truly Yours,
/s/
Ryke Longest, Director
Duke Environmental Law and Policy Clinic
cc: Heather McTeer Toney, Administrator, EPA Region IV
James Giattina, Director, Water Protection Division, EPA Region IV
James Stephens, Acting Director, Division of Community Health,Agency for
Toxic Substances and Disease Registry
Linda Culpepper, Director,North Carolina Division of Waste Management
Aldona Wos, Secretary, North Carolina Department of Health and Human
Services
Will Scott, Yadkin Riverkeeper
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