NC0004308_07-01-15 Comment Letter on Permit NC004308_20150713

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone 919 - 967 -1450 601 WEST ROSEMARY STREET, SUITE 220 Facsimile 919- 929 -9421
CHAPEL HILL, NC 27516 -2356
July 1, 2015
VIA ELECTRONIC MAIL
Teresa Rodriguez
NCDENR- Division of Water Resources
Wastewater Branch
1617 Mail Service Center
Raleigh, NC 27699 -1617
Teresa. [e-mail]
Re: Comments on Proposed NPDES Stormwater Permit for Alcoa Badin Works —
Permit NC0004308
Dear Ms. Rodriguez:
We appreciate the opportunity to submit comments on behalf of the Concerned Citizens
of West Badin Community ( "CCWBC ") regarding Alcoa, Inc.'s proposed National Pollutant
Discharge Elimination System ( "NPDES ") Permit NC0004308. Please accept these.comments
for consideration in your preparation of the final permit.
CCWBC is a group of concerned residents of West Badin, an African- American
community near Badin Lake in Stanly County. CCWBC advocates for community -wide healthy
land and clean water in and around Badin. CCWBC remains deeply concerned about the
residents and visitors whose use of Badin Lake and Little Mountain Creek for fishing, boating
and swimming, is negatively impacted by Alcoa's continued contamination of these waters.
The Southern Environmental Law Center ( "SELC ") is a non - profit legal advocacy group
dedicated to protecting the environment of the South. SELC works with more than 100 partner
groups in six southeastern states. SELC has been actively involved in a variety of efforts to
protect and improve water quality in the Yadkin River Basin and strives to incorporate principles
of environmental justice in its program work.
We urge the Division of Water Resources ( "DWR ") to hold Alcoa fully accountable for
waste from its closed aluminum facility in and around the West Badin community. Specifically,
DWR must undertake testing and a waste characterization study to determine the extent and
nature of the contamination from the Alcoa Badin Landfill and strengthen the aforementioned
NPDES permit to protect water quality in Little Mountain Creek, Badin Lake and downstream
water resources.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC
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Teresa Rodriguez
July 1, 2015
Page 2
Historic Contamination by Alcoa in Badin
For almost a century, the world's third largest producer of aluminum, Alcoa, Inc., which
includes Alcoa Power Generating, Inc. and its predecessors in interest, owned and operated the
aluminum smelting facility, Alcoa Badin Works, adjacent to Badin Lake in Stanly County, North
Carolina. Hazardous substances utilized in and created by aluminum production were
improperly disposed of both at the facility and throughout the predominantly African- American
local community of West Badin, causing significant groundwater and surface water
contamination. Alcoa's waste continues to leach contaminants, including trichloroethylene
(TCE), fluoride, and cyanide, into groundwater at and near the facility. It appears that polluted
groundwater from the facility then infiltrates the stormwater system, before ultimately
discharging into nearby surface waters.
The hazardous substances threatening West Badin were used in two distinct stages of
Alcoa's aluminum production process. Of particular concern is the waste produced when
extracting aluminum metal from aluminum oxide in large carbon -lined electrolytic cells called
"pots." This process required periodic replacement of the carbon lining in each pot and the used
lining, called "spent potliner," contains leachable cyanide and fluoride compounds. The potliner
also includes a layer of refractory brick that absorbs the impurities from the cryolite bath. Old
pieces of this brick have been found around Badin Lake. Another waste product from the old
aluminum smelting process is the carbon blocks that were used as anodes. These blocks have
also been found around Badin Lake, further indicating that Alcoa's waste disposal was not
confined to known landfills. Until the late 1970s, Alcoa buried spent pot liner in unlined earthen
pits both onsite and in the West Badin community. Forty-four of those sites have been evaluated
by environmental regulators.
After aluminum metal was extracted, heavy machinery, including large industrial rollers,
were used to shape it for commercial use. Operation and maintenance of machinery in the
fabrication facility involved the use of PCBs, which were once commonly used in electrical
wiring to enhance heat and fire resistance, as well as TCE, an industrial solvent and degreaser.
Improper disposal of these chemicals, reportedly including direct application to the ground at the
facility, led to contamination of soils at and near Alcoa Badin Works. In addition there are
allegations that transformer oil, often laden with PCBs, was sprayed on the then -dirt roads
throughout the town to keep down dust.
For years, Alcoa's use and disposal of these harmful substances went largely unchecked.
The use of PCBs was not banned until 1979, more than 60 years after aluminum production
commenced at Alcoa Badin Works. The EPA did not recognize spent pot liner as a hazardous
waste until 1988. And attempts to regulate TCE repeatedly stalled in Congress. Consequently,
water quality in and around Alcoa Badin Works suffered from decades of poorly regulated waste
management practices. It was not until 1989, following federal recognition of the dangers of
spent pot liner, that Alcoa began the cleanup of hazardous waste at Alcoa Badin Works.
However, Alcoa failed to complete the removal required at the facility, and never addressed
numerous additional waste sites throughout West Badin. The results of this inaction are

Teresa Rodriguez
July 1, 2015
Page 3
exacerbated by the continued operation of a stormwater system that transports contaminated
groundwater from beneath the facility to outfalls that discharge into nearby surface waters.
The 2008 Stormwater Permit
When the Clean Water Act was first passed, the NPDES system was designed to focus on
traditional point sources rather than stormwater systems. Indeed, in 1973, the EPA issued
regulations generally exempting stormwater discharges from the NPDES permitting requirement
except where such discharges constituted significant contributions to water pollution.' However,
the Water Quality Act of 1987 broadened the NPDES program by imposing permit requirements
for a variety of stormwater sources.2 Among the newly regulated stormwater sources were
"industrial stormwater discharges. "3 With respect to these point sources, the primary threat to
water quality was posed by the effect of industrial processes on the stormwater effluent, as
demonstrated by the myriad regulatory exemptions available to "[o]perators of a discharge which
is composed entirely of stormwater. ,4 Thus, even from the outset, regulators realized the
increased environmental risk, and corresponding need for appropriate controls, when non-
stormwater is discharged through stormwater systems. The EPA has more recently observed that
the non - stormwater discharges are "significant sources of pollutants" and that "[i]dentifying and
eliminating non -storm water discharges can be an easy and cost - effective method for preventing
runoff contamination and pollution of receiving water bodies. "5
Alcoa's current permit also recognizes the importance of identifying and eliminating non-
stormwater discharges that threaten water quality. Under the 2008 permit, Alcoa is required to
annually submit, "certification that the stormwater outfalls have been evaluated for the presence
of non - stormwater discharges. "6 The only "allowable non - stormwater discharges" are clearly
defined in the permit .7 Of particularly relevance, groundwater is only an allowable non-
stormwater discharge if it is "uncontaminated. "8
If Alcoa complied with the aforementioned annual certification requirement, DENR has
received repeated annual indications that Alcoa is regularly responsible for non - stormwater
discharges that are not "allowable." Indeed, the Fact Sheet prepared by DENR when evaluating
Alcoa's most recent permit application indicated the agency's awareness that contaminated
groundwater was discharged through Alcoa's stormwater system.9 Given the agency's
'See 40 C.F.R. § 125.4 (1975).
2 See 33 U.S.C. § 1342(p).
3 Id.
4 40 C.F.R. § 122.26(c)(1)(i)(F).
5 EPA, Office of Water, Stormwater Management Fact Sheet: Non -Storm Water Discharges to Storm Sewers, EPA
832 -F -99 -022 (Sept. 1999), available at
htto: // water. eoa. izov /scitech/wastetech/uoload/2002 06 28 mtb nonstorm.Ddf.
6 Permit § B.(l.)(a.)(v.) (describing contents of Stormwater Pollution Prevention Plan); id. (requiring annual review
and update of the plan).
7 Permit Section B.(3.)2.
8 Id.
9 DENR/DWR, Face Sheet for NPDES Permit Development: NPDES No. NC0004308 at 1 (Jan. 2015)( "Although
the industrial operations ceased at the site, previous activities contribute to pollutants of concern in the stormwater

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July 1, 2015
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knowledge that contaminated groundwater is infiltrating and discharging from Alcoa's
stormwater system, the draft permit is objectionable due to its failure to protect receiving waters
from the impacts of this unpermitted non - stormwater discharge.
Problems with the 2015 Draft Stormwater Permit
The draft permit does not go nearly far enough to protect the environment, or local
residents from potentially hazardous discharges coming from the covered outfalls. First, the
permit contains no limit on PCBs. PCBs are a known carcinogen and their presence negatively
impacts fish populations by inhibiting reproduction. Although the State worked with Alcoa to
put caps over known PCB deposits in Badin Lake, it is essentially ignoring another potential
source of additional PCB contamination from Alcoa's discharge. Almost as troubling is the fact
that the proposed permit includes no limits on the discharge of TCE and instead would only
require quarterly monitoring of the amount of TCE discharged. Inexplicably, that monitoring
requirement would only apply to one of the ten outfalls from Alcoa's storm water system. TCE
is a toxic chemical which can harm the nervous system, liver, respiratory system, and kidneys.
Permitting Alcoa to discharge unlimited quantities of both PCBs and TCE would weaken water
quality and threaten public health.
Also concerning is the State's proposal to lower existing permit provisions related to the
discharge of fluoride and cyanide. Cyanide causes rapid asphyxia in fish and has been linked to
nervous, respiratory, and cardiovascular complications in humans. Fluoride inhibits enzyme
activity in fish and causes dental and skeletal problems in humans. Yet, the State proposes to
relax existing monitoring requirements, requiring total cyanide and total fluoride discharge to be
reported only twice a year. And perhaps most astonishingly, the State proposes to give Alcoa
three years before it must comply with new limits on the actual amount of cyanide and fluoride
that may be discharged.
Summary Request
We urge the Division of Water Resources to adequately protect Little Mountain Creek
and Badin Lake from additional and excessive pollutant discharge from the Alcoa Badin Works
facility. The proposed changes to Alcoa's current permit, including reductions in effluent
limitations and monitoring requirements and the imposition of a three -year schedule of
compliance for limitations on fluoride and cyanide, are unacceptable for several reasons. These
changes conflict with the anti - backsliding provisions of the Clean Water Act, the anti -
degradation policy of the Clean Water Act and result in a disparate impact on communities
protected by Title VI of the Civil Rights Act of 1964. These concerns must be addressed to
ensure better outcomes for water quality in Badin Lake and Little Mountain Creek.
and/or groundwater runoff. "); id. ( "At this time Alcoa has not yet identified measures to treat the contaminated
groundwater. ").

Teresa Rodriguez
July 1, 2015
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L The Draft Permit Runs Afoul of the Federal Clean Water Act.
A. The Draft Permit conflicts with the anti - degradation policy stated in both
federal and North Carolina Law.
The federal anti - degradation policy adopted to implement the Clean Water Act requires
that the level of water quality necessary to protect the existing water uses be maintained and
protected. 10 This policy is both echoed and incorporated by reference in regulations adopted by
the North Carolina Environmental Management Commission." t The contaminated groundwater
traveling through Alcoa's stormwater system is discharged into two water bodies, Little
Mountain Creek and Badin Lake, which are both classified as waters supply sources. Pursuant tc
this classification, these waters must be protected as sources of public water supply as well as for
uses including secondary recreation, 12 agriculture, aquatic life propagation, maintenance of
biological integrity, and wildlife habitat.13 Badin Lake is also a Class B waterbody, so it must be
protected for "primary recreation" use. 14
Existing uses of these water bodies would be threatened by relaxing Alcoa's NPDES
permit provisions. This is particularly concerning when permitted discharges enter Badin Lake,
which is already considered a "critical area" where "risk associated with pollution" is heightened
due to its use for water supply.15 Badin Lake is still used as a source of drinking water for many
North Carolina residents. Moreover, despite fish consumption warnings, residents continue to
consume fish from Badin Lake. In addition to these human uses, aquatic life propagation and
survival will be threatened by inappropriate regulation of the discharge from Alcoa's stormwater
system.
It bears emphasis that both Badin Lake and Little Mountain Creek are Category 5 waters
on North Carolina's 303(d) list. 16 As such, both water bodies are already too polluted to support
some of their beneficial uses and the State should be undertaking efforts, such as drafting a Total
Maximum Daily Load, to limit pollution. Instead, the State is proposing a permit likely to
increase pollutant loading in these water bodies. The issuance of the proposed permit to Alcoa
will only exacerbate the observed problems in receiving waters. Because the state's proposed
permit action is inconsistent with the anti - degradation policy of the federal Clean Water Act the
permit should be modified in order to comport with the federal statute and the state policy.
10 40 CFR 131.12 (a)(1).
11 15A N.C. Admin. Code 2B .020 1.
12 Secondary recreation is defined to include "wading, boating, other uses not involving human body contact with
water, and activities involving human body contact with water where such activities take place on an infrequent,
unorganized, or incidental basis." 15A N.C. Admin Code 2B .0202(57).
" 15A N.C. Admin. Code 2B .0301(c).
14 Id.; see also 15A N.C. Admin Code 2B.0202(52) ( "Primary recreation includes swimming, skin diving, skiing,
and similar uses involving human body contact with water where such activities take place in an organized or on a
frequent basis. ").
15 15A NCAC 2B .0202(20) (defining "critical area ").
16 NCDENR, 2014 Category 5 Water Quality Assessments- 303(d) List, available at
httn: / /Dortal.ncdenr.org /c /document library/aet file ?uuid= 28b97405- 55da- 4b21 -aac3-
f580ee810593 &arounld= 38364.

Teresa Rodriguez
July 1, 2015
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B. The Draft Permit conflicts with Clean Water Act anti - backsliding
provisions.
The CWA includes anti - backsliding requirements to ensure that the limits and conditions
imposed in new or modified NPDES permits for a facility are at least as stringent as those in
previous permits. 17 The proposed permit relaxes provisions requiring Alcoa to monitor and/or
limit cyanide and fluoride discharges its storm water system. Issuance of the permit would
therefore threaten both water quality and public health. These reductions in effluent limitations
and monitoring requirements in the draft Permit are prohibited by the anti - backsliding provisions
of the CWA.
While there are exceptions to the anti - backsliding requirements, 18 the State fails to
explain how, if at all, Alcoa would qualify for such an exception. Moreover, these exceptions
are entirely unavailable if implementing less stringent effluent limitations would result in a
violation of water quality standards. 19 Absent an exception to the general anti - backsliding
provisions of the CWA, and the draft permit should be modified to comport with the Act.
Il. The Draft Permit conflicts with specific legal and policy protections for
communities of color
A. The draft permit does not comply with Title VI of the Civil Rights Act of
1964.
The State's disregard for public health is especially troubling because it has a disparate
impact on racial minorities in the area near the facility. In 2010, the population of Badin, North
Carolina, was 39% African American and 6.4% Hispanic or Latino. The West Badin community
adjacent to the smelting facility has a significantly higher minority population (over 90 %) than
Stanly County as a whole. If the state environmental agency, as a recipient of substantial federal
funding, takes an action, such as permitting stormwater discharges, that disparately impacts
people of color, an additional remedy is provided through federal law.
Title VI of the Civil Rights Act of 1964 states that "[n]o person in the United States shall,
on the ground of race, color or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance. "20 As a division of the North Carolina Department of Environment and
Natural Resources ( "NCDENR "), a state agency receiving federal funds, the North Carolina
Division of Water Resources must comply with Title VI and its regulations.
The proposed changes to Alcoa's draft permit include reductions in effluent limitations
and monitoring requirements and the imposition of a three -year schedule of compliance for
17 33 U.S.C. § 1342(o); 40 C.F.R. § 122.44(1)(1) ( "[W]hen a permit is renewed or reissued, interim effluent
limitations, standards or conditions must be at least as stringent as the final effluent limitations, standards, or
conditions in the previous permit ......
" 33 U.S.C. § 1342(o)(2).
19 33 U.S.C. § 1342(o)(2).
20 42 U.S.C. § 2000d (2012).

Teresa Rodriguez
July 1, 2015
Page 7
limitations on fluoride and cyanide. If finalized as drafted, the permit is likely to have an
adverse and disproportionate impact on the local community on the basis of race, in violation of
Title VI. As such, the draft permit should be modified to better protect public health and the
environment.
B. The public process for the draft permit does not comport with North
Carolina's Environmental Equity Initiative.
The public process for the draft permit is flawed because it does not represent the
principles of environmental equity as reflected in NCDENR's October 19, 2000 "Environmental
Equity Initiative" Policy.21 In order to meet the goals of the Initiative, the policy provides that
NCDENR will, among other actions:
Address environmental equity issues in permitting decisions for projects
potentially having a disparate impact on communities protected by Title VI of the Civil
Rights Act of 1964;
Use demographic information to determine whether there is: 1) a need for greater
outreach to community in order to encourage more meaningful participation, or 2) special
health risks based on the nature of the population;
Resolve environmental equity complaints, consistent with the protection afforded
by Title VI of the Civil Rights Act of 1964;
Provide opportunities for interested parties to raise concerns on Environmental
Equity in NCDENR's decisions.
As conducted, the public notice process for Alcoa's proposed permit falls short of the
aims of the Environmental Equity Initiative. The Fact Sheet does not include any demographic
data analysis to determine if this permitting decision warranted heightened outreach to encourage
more meaningful participation by the community. To give adequate attention to the North
Carolina Policy on Environmental Equity, there should be a demographic data analysis for the
community of West Badin, which would be added to the permit fact sheet; and additional public
outreach regarding the community's knowledge of waste in the landfill adjacent to the permitted
outfalls, toward the ends of a permit that adequately protects the community, Little Mountain
Creek, Badin Lake and downstream natural resources.
III. Recommendations
In addition to other measures contemplated in the comment letter submitted on behalf of
Yadkin Riverkeeper, the Division of Water Resources should undertake a waste characterization
study and, if a new permit is issued, it should be more stringent.
21 Attachment A, NCDENR Environmental Equity Initiative Policy.

Teresa Rodriguez
July 1, 2015
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Conclusion
Alcoa has failed to be a good steward of the natural resources in the Yadkin River Basin,
and even in its shuttered state continues to add harmful pollutants to the waters of the State. The
West Badin community is negatively impacted by the on -going discharges into Little Mountain
Creek and Badin Lake. In order to comply with the Clean Water Act, anti - degradation and anti -
backsliding policies, Title VI of the Civil Rights Act of 1964, and the North Carolina
Environmental Equity Policy, the State should not issue the permit in its draft form but rather do
a thorough waste characterization study, with extensive input from the local community, and
only issue a permit in such a way that protects the natural resources of the State and West Badin
community.
Thank you for the opportunity to comment on this important matter.
Sincerely,
A6� —
Chandra T. Taylor
Senior Attorney
Southern Environmental Law Center
WH /lv
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
Macy Hinson, Concerned Citizens of West Badin Community