NC0026441_Comments_20181126

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 601 WEST ROSEMARY STREET,SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
November 26,2018
Via email and U.S.P.S.
Michael Templeton, P.E. RECEIVED/DEN
Water Quality Permitting Section R/DVVR
N.C. Department of Environmental Quality—Division of Water Resources NO V 29 2018
1617 Mail Service Center
Raleigh,NC 27699 . WterResourceQ
[e-mail] Section
Mr. Templeton,
Thank you for the opportunity to provide comments on the draft modification of National
Pollutant Discharge Elimination System("NPDES")Permit NC0026441 for the Siler City
Wastewater Treatment Plant("Draft Modification"). The Southern Environmental Law Center
("SELC") submits these comments on behalf of Rocky River Watch. Rocky River Watch's
mission is to educate the citizens of Chatham County about Rocky River, its ecological richness,
threats to its health, and how to participate in activities affecting the river; support the continuing
studies of the health of the Rocky River's water and dependent ecosystems; and perform and
encourage the routine monitoring of water quality in the Rocky River to detect any threats to
humans and wildlife. SELC reserves the right to supplement these comments should a public
hearing be held on this matter.
The Draft Modification would unlawfully allow Siler City to discharge 4 million gallons of
industrial and municipal wastewater containing unprecedented levels of Total Nitrogen into
Loves Creek and downstream in the Rocky River each day. The Draft Modification would
undoubtedly violate water quality standards and further degrade the already-impaired Loves
Creek and Rocky River. The primary source of nutrients in Siler City's waste stream would be
Mountaire Farms, Inc.'s ("Mountaire")poultry processing facility, which is scheduled to begin
operations in January 2019. Siler City has issued Mountaire a pretreatment permit that does not
require the company to remove Total Nitrogen from its waste stream.
At one time,the Rocky River watershed was one of the most"beautiful, economically
valuable, and biologically diverse"rivers and streams on the planet.' But for the past few
decades, Loves Creek and the Rocky River have suffered from extensive nutrient pollution. As
the N.C. Department of Environmental Quality—Division of Water Resources ("DWR") is well-
aware, the nutrient pollution in both rivers has made it impossible for the natural biological
' John Alderman&Joseph Alderman,Rocky River Subbasin Aquatic Taxa Surveys, 1 (July 1,2010)
(attached as Exhibit 18).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington,DC

community to survive—landing the rivers on the 303(d) list for benthos, chlorophyll-a and other
standards—and has prevented the public from boating, swimming, and fishing in the rivers. Far
from meeting its obligation to "restore . . . the chemical,physical, and biological integrity"of the
Rocky River watershed, DWR's Draft Modification exacerbates problems by allowing
unchecked nitrogen pollution. The proposal not only fails the public, it breaks the law in the
following ways:
• The Draft Modification will allow the discharge of unprecedented and uncontrolled
amounts Total Nitrogen into the already-impaired Loves Creek and downstream in the
Rocky River;
• The Draft Modification will not protect existing uses for fishing, swimming, and aquatic
life in Loves Creek or downstream in the Rocky River; and
• The Draft Modification fails to account for the cumulative impact of existing and new
sources of nutrient pollution that are related to Mountaire's operations.
In order to protect the existing uses on Loves Creek and the Rocky River, including the
biological community and downstream recreational uses,DWR must take the following actions:
• Require pollution controls sufficient to protect the designated uses for Loves Creek and
the Rocky River. Specifically,DWR must consider a more stringent and protective Total
Nitrogen limit than the proposed 73,058 lb/year and require compliance with such a limit
immediately;
• Conduct a complete and thorough"cumulative effects" analysis of the water quality
impacts of the Mountaire processing facility, similar permitted facilities in the Cape Fear ,
River Basin, and all "deemed permitted"poultry operations associated with the
Mountaire facility. DWR must then adjust the permit parameters "so as to prevent
violation of water quality standards";
• Expand the instream monitoring requirements to include additional monitoring on the
Rocky River downstream of its confluence with Loves Creek in order to adequately
monitor water quality impacts from the proposed discharge;
• Demand that Siler City reopen Mountaire's pretreatment permit in order to require
nitrogen removal before the company discharges its process wastewater into the Siler
City WWTP; and
• Evaluate the impacts of the Draft Modification to the endangered Cape Fear Shiner
population and designated critical habitat downstream of the discharge.
SELC reiterates its November 8, 2018, request for a public hearing on the Draft Modification
because it has garnered significant public interest and because the Draft Modification, as written,
does not comply with the law.
2

9
I. Factual Background
The middle Cape Fear River watershed has a long history of significant nutrient pollution.
The Siler City Wastewater Treatment Plant("WWTP") contributes heavily to this historical
nutrient pollution,particularly in the Rocky River. The Draft Modification, as written, would
allow more nutrients to enter Loves Creek than both the Townsend and Pilgrim's Pride facilities
combined, exacerbating a historical nutrient pollution problem and degrading water quality for
aquatic species and downstream users.
A. Overview of nutrient pollution in Loves Creek and Rocky River
For decades, industrial dischargers, agriculture, and other nonpoint pollution sources have
overloaded the Rocky River watershed with nutrients.2 The problem has been exacerbated by
North Carolina's delay in adopting and enforcing a Total Daily Maximum Load("TMDL")for
nutrients or other appropriate nutrient criteria necessary to protect designated uses for these
waterbodies.
According to the U.S. Environmental Protection ("EPA"),nutrient pollution adversely affects
human health, fisheries and recreational water use:
Nitrogen and phosphorus are the primary causes of cultural
eutrophication. The most recognizable manifestations of this
cultural eutrophication are algal blooms that occur during the
summer. Chronic symptoms of over enrichment include low
dissolved oxygen, fish kills,murky water, and depletion of
desirable flora and fauna. In addition,the increase in algae and
turbidity increases the need to chlorinate water for drinking
purposes. This, in turn, leads to higher levels of disinfection by-
products that have been shown to increase the risk of cancer.
Excessive amounts of nutrients can also stimulate the activity of
microbes, such as Pfisteria,which may be harmful to human
health.3
In 2001,the EPA asked all states to develop nutrient management plans to address growing
concerns with nutrient pollution across the country.4 In 2004,North Carolina developed a
nutrient criteria implementation plan in response to EPA's request.5 The 2004 plan set out to
2 North Carolina Nutrient Criteria Development Plan,N.C.DEP'T ENV'T AND NAT.RES.—DIV.WATER
RESOURCES, 12(June 2014)(attached as Exhibit 1) [hereinafter NCDP].
3 See Memorandum from Geoffrey Grubbs,U.S.Envt'l Protect.Agency Office of Science&Technology,
to Water Directors, et al.,2 (Nov. 14,2001)(attached as Exhibit 178).
,4 See NCDP,supra note 2.
5 See North Carolina Nutrient Criteria Implementation Plan, STATE OF N.CAROLINA, 1 (June 1,2004)
(attached as Exhibit 3).
3

establish region-specific nutrient criteria coupled with site-specific "nitrogen and phosphorus
control mechanisms."6 Ten years later,with little progress to show, DWR updated the 2004 plan
with a new plan–the Nutrient Criteria Development Plan—which established a schedule for _
adopting nutrient criteria that would protect designated uses for water bodies in three areas,
including the middle Cape Fear River watershed. DWR must complete its obligations under the
Nutrient Criteria Development Plan by December 2021.8
In the interim,DWR has not adopted any measures to prevent further nutrient pollution in
this watershed despite the existing evidence of this growing pollution problem. Algal blooms
and high concentrations of chlorophyll-a are common occurrences in this area.9 DWR has
identified Loves Creek and the Rocky River as impaired for several water quality parameters.
Loves Creek has been impaired for benthos,since 1998, indicating that the water quality
conditions in the creek are not suitable for aquatic life.10 The Rocky River was identified as
impaired for dissolved oxygen in 2010 downstream from Loves Creek." DWR observed
chlorophyll-a violations at Woody's Dam in 2009, and added this section of the Rocky River to
the 303(d) list for chlorophyll-a in 2012.12 Total Nitrogen levels in Loves Creek and downstream
in the Rocky River have decreased overall in recent years, but impaired conditions persist.13
6 See id.
7 NCDP,supra note 2, at 1.
8 Id. at 14.
9 DEQ/DWR FACT SHEET FOR NPDES PERMIT MODIFICATION:NPDES No.NC0026441, N.C.
DIV.OF WATER RES., 1 (Oct. 17,2018),
http://portal.ncdenr.org/c/document library/get file?p 1 id=38446&folderld=374524&name=DLFE-
122038.pdf[hereinafter Fact Sheet];see also id.
10 Fact Sheet,supra note 9, at 1. See also 2018 303(D)LISTING AND DELISTING
METHODOLOGY,N.C.ENV'TL MGMT.COMM'N, 6(March 2018)
https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303 d/2018/2018%20Listing%20Methodolo
gy ApprovedMarch2018.pdf(describing DWR's method for assessing narrative aquatic life criteria using
biological ratings.
11 Fact Sheet,supra note 9, at 1. The Fact Sheet for the Draft Modification failed to note that the Rocky
River is impaired for dissolved oxygen. See Final 2016 Category 5 Assessments–303(d)List,N.C.
DEP'T OF ENVT'L QUALITY, 17 (March 23,2018),
https://files.nc.gov/ncdeq/Water%20Quality/Planning/TMDL/303d/2016/2016 NC Category 5 303d lis
t.pdf.
12 See Draft Memorandum from Andy Painter,Environmental Specialist,to Tom Belnick, Complex
Permitting Unit Supervisor,2-3 (April 2011)(attached as Exhibit 2) [hereinafter 2011 Draft Memo];see
also NC 2010 Integrated Report,N.C.Dep't of Env't&Nat.Res.–Div. Water Quality,26 (Oct. 19,
2010).
13 See Rocky River Management Team Meeting,7-8 (Nov. 16,2018),
https://files.nc.gov/ncdeq/Water%20Quality/Planning/BPU/BPU/Cape Fear/Nov 2018 RRMT Meeting
Presentations.pdf
4

B. Siler City Wastewater Treatment Plant's severe historical pollution of Loves Creek
and the Rocky River
The Siler City WWTP was built in 1994, and has operated under a Clean Water Act
discharge permit since that time.14 The facility discharges waste into Loves Creek,which flows
0.4 miles to the Rocky River,to the Deep River, and eventually into the Cape Fear River. For
years, the facility accepted industrial wastewater from two poultry facilities: Pilgrim's Pride and
Townsend Poultry. Because the facility is not designed to treat Total Nitrogen,nutrient-loaded
discharges from poultry facilities into the Siler City WWTP directly contaminates Loves Creek
and the Rocky River.'5
The Pilgrim's Pride processing plant closed in 2008, and the Townsend plant closed in
2011; however,poor water quality conditions have persisted.Between May 2009 and December
2010,DWR monitored the nitrogen pollution caused by only the Townsend facility's discharge
to the Siler City WWTP, and acknowledged that the Siler City WWTP likely caused excessive
nutrient pollution on Rocky River downstream from Loves Creek.16 Data from ambient
monitoring sites on Rocky River downstream from Loves Creek showed significant increases in
Total Nitrogen as compared to upstream sites on the Rocky River. Whereas median Total
Nitrogen on Loves Creek upstream from the facility measured .97 mg/L, downstream levels
measured 18.9 mg/L—nearly 20 fold higher. Similarly, median Total Nitrogen on the Rocky
River upstream from Loves Creek measured .89 mg/L, compared to 7.77 mg/L several miles
downstream from Loves Creek. 17
In 2011, in recognition of the nutrient pollution caused by the facility, stakeholders
requested and DWR staff recommended that the NPDES permit`•`incorporat[e] total nitrogen
limits at the best available technology level."18 DWR,however, ignored its staff and did not
include Total Nitrogen limits in the facility's 2014 permit renewal.19 Instead, DWR included a
nutrient re-opener condition, Condition A(3), which would allow DWR to reopen the permit in
the event that Siler City WWTP proposed to accept industrial wastewater with concentrations of
14 See id. at 18;see also Siler City WWTP–Mountaire Farms Review(undated) (attached as Exhibit 4).
15 See Fact Sheet,supra note 9, at 2;see also Siler City WWTP–Mountaire Farms Review,supra note 14.
16 See Fact Sheet,supra note 9, at 2.
17 See 2011 Draft Memo,supra note 12, at 1-2. •
181d at 1(stating that the"incorporation of total nitrogen limits at best available technology level for Siler
City WWTP 2011 NPDES permit renewal is recommended to improve water quality in Loves Creek and
the Rocky River,and to address the chlorophyll-a impairment behind Woody's Dam").See also
Memorandum from Brian Wren, Transportation Planning Unit, et. al,to Coleen Sullins,Div. of Water
Quality,2-6(July 14,2008) (summarizing public comments stating concerns about nutrient pollution
resulting from the Siler City WWTP and reflecting DWR's recommendation for a nutrient optimization
study in the permit)(attached as Exhibit 5).
19 Fact Sheet,supra note 9, at 3; 2011 Draft Memo,supra note 1812,at 1.
5

Total Phosphorus of more than 5.0 mg/L and Total Nitrogen concentrations greater than 40.0
mg/L.2o
C. Mountaire Farms' discharge into the Siler City Wastewater Treatment Plant
In 2016, Siler City notified DWR that it would accept industrial wastewater from
Mountaire Farms, a multi-billion dollar poultry processing company with facilities across the
country. Mountaire acquired the former Townsend poultry processing facility, and plans to
begin processing poultry at the updated facility in January 2019.21 Mountaire intends to phase-in
its discharge to the Siler City WWTP. During phase one,Mountaire expects to discharge
approximately 0.7 million gallons per day ("MGD") of wastewater into Siler City WWTP.22
•
During the second phase of production—which is expected only six months into operations—
Mountaire is permitted to discharge a monthly average of 1.25 MGD and a daily maximum of
1.65 MGD into the Siler City WWTP.23
Mountaire's wastewater will consist of extremely high levels of Total Nitrogen and Total
Phosphorus. In fact,the expected Total Nitrogen content of Siler City WWTP's discharge
during phase two of Mountaire's production is 33 percent higher than the level of Total Nitrogen
in the facility's discharge when it accepted wastewater from both Pilgrim's Pride's and
Townsend's, amounting to an estimated 989 lb./day of Total Nitrogen 24
D. DWR's Draft Modification for the Siler City WWTP
Pursuant to the nutrient reopener provision in the NPDES permit, DWR proposes three
changes to the existing permit. First,DWR proposes a Total Nitrogen limit of 73,058 lb/year for
20 Letter from Thomas Reeder,Director of N.C.Div. of Water Resources,to Bryan Thompson, Town
Manager for Town of Siler City,4(April 30,2014) (attached as Exhibit 6).
21 See, e.g.,David Bracken,Mountaire Farms to take over Siler City poultry plant,NEWS&OBSERVER
(May 5,2016)(attached as Exhibit7)(announcing Mountaire's plans to take over the former Townsend
poultry plant). See also Will Doran,Ethics complaint says NC House Speaker Tim Moore profited from
his political position,NEWS&OBSERVER(March 5, 2018)(attached as Exhibit8); Sarah Willets,Siler
City Mobile Home Park Residents Being Evicted by Mountaire Farms Reach Compensation Deal,
INDYWEEK(March 26,2018)(attached as Exhibit 9).
22 See Fact Sheet,supra note 9, at 4.
23 See Fact Sheet,supra note 9,at 4. At the November 16,2018,meeting of the Rocky River
Management Team, a representative from the Town of Siler City stated that Mountaire intends to begin
phase two of production six months into operations.
24 See Fact Sheet,supra note 9, at 5 (noting that the total Total Nitrogen load from the Siler City WWTP
between 2004 and 2008 when both facilities were operating averaged 667 lb/day and that the estimated
total Total Nitrogen load from the Mountaire facility at full capacity will be 989 lb/day).
6

the Siler City WWTP, which goes into effect in 2023. The target limit appears to be calculated
based on a 6.0 mg./L limit for a 4.0 MGD total discharge,the design capacity for the facility .25
Second, DWR proposes a schedule for conducting a"nitrogen optimization study"which
would evaluate whether minor upgrades to the Siler City WWTP may be implemented in order
to achieve the 2023 Total Nitrogen limit, or in the alternative to achieve a working target of 30
percent reduction of Total Nitrogen loads from the facility.26 This study would be required to be
completed 22 months after Mountaire begins to discharge its wastewater into the WWTP. The
30 percent target reduction is just that—a target; this reduction target would not be binding on
the WWTP.27 No Total Nitrogen limit would be in effect between the time the Draft
Modification would be issued and 2023.
Finally,DWR would require Siler City WWTP to implement the most effective
optimization measures within 22 months after the completion of the nutrient optimization
study.28 If these measures are inadequate to meet the 2023 limit,DWR would require Siler City
to complete design of the facility upgrades necessary to meet the 2023 limit no later than April
2021, and to install all necessary facility upgrades before January 1, 2023.
For at least 22 months, and very likely even longer,the Siler City WWTP would be
permitted to discharge an unlimited amount of Total Nitrogen into Loves Creek. Even if the
facility can achieve the non-binding 30 percent Total Nitrogen reduction target in the interim,the
facility would still discharge an estimated 791 lb./day of Total Nitrogen, greater than the Total
Nitrogen discharge loading with two poultry processors in the facility's waste stream.29
II. The Draft Modification will not protect designated uses on Loves Creek or
the Rocky River
DWR must protect the designated uses of Loves Creek and the Rocky River when issuing
a modification to Siler City WWTP's existing permit. DWR violates this foundational
obligation; the Draft Modification fails to protect aquatic life or recreational uses for people who
live near or enjoy using Loves Creek or the Rocky River downstream from the Siler City
WWTP.
25 See id. at 5 (noting that this target limit is slightly less than the Total Nitrogen loading from the facility
in the February 2016-August 2017 time frame, during which both poultry plants were closed and the
Town discharged an average of 202 lb/day of Total Nitrogen).
26 See DRAFT STATE OF NORTH CAROLINA DEP'T OF ENVT'L QUALITY—DIV.WATER RES.
PERMIT TO DISCHARGE WASTEWATER UNDER THE NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM, 8-9 (Oct. 15,2018) [hereinafter Draft Modification].
27 See id. (labeling the 30 percent reduction target as a"working target").
28 See id. at 8.
29 Fact Sheet,supra note 9, at 5 (indicating that a 30 percent reduction in estimated Total Nitrogen loads
will amount to 692 lb/day, as compared to 667 lb/day of Total Nitrogen that was discharged from the
WWTP when it received poultry processing waste from two processing plants).
7

•
A. DWR's obligations under the Clean Water Act and state water quality statutes
DWR issues National Pollutant Discharge Elimination System ("NPDES")permits under
. the federal Clean Water Act("CWA"), 33 U.S.0 §§ 1251, et seq. (2012),pursuant to authority
- granted to the State by the EPA. The objective of the CWA is to "restore and maintain the
chemical,physical, and biological integrity of the nation's waters."30 The State's authority to
implement the NPDES program is governed by the CWA, federal regulations, and state water
quality statutes and rules. The CWA generally prohibits discharges to waterways;31 however,the
NPDES program is an exception to that prohibition.32 Under the State's NPDES program, "[n]o
permit may be issued when the imposition of conditions cannot reasonably ensure compliance
with applicable water quality standards and regulations."33 When evaluating applications for
NDPES permits, DWR must ensure that"that the water quality standards and best usage of
receiving waters and all downstream waters will not be impaired"by the NPDES permits it
issues.34 DWR must exercise its permitting authority"so as to prevent . . . any significant
increase in pollution of the waters of the state."35 DWR is permitted to include in a permit
schedules for achieving compliance with water quality standards.36 The preclusion of any
designated use on"either a short-term or long-term basis shall be considered to be violating a
water quality standard."37
DWR is also directed to evaluate the"cumulative effects" of permitting decisions, and to
"act on all permits so as to prevent violation of water quality standards due to the cumulative
effects of permit decisions."38 These cumulative effects include the"collective effects of a
number of projects and include the effects of additional projects similar to the requested permit
in areas available for development in the vicinity.i39 Facilities "deemed permitted"by agency
rules are "permit decisions"within the meaning of the statute, and the water quality impacts of
such decisions must be included in a"cumulative effects" analysis.4°
30 33 U.S.C. § 1251(a) (2018).
31 Id. § 1311(a); see also N.C. Gen. Stat. 143-215.1(a)(1) (2018).
32 33 U.S.C. § 1342(2018).
33 15A N.C.Admin. Code 2H.0112(c);see 40 C.F.R. § 122.4(i) ("No permit may be issued. . . [t]o a new
source or a new discharger, if the discharge from its construction or operation will cause or contribute to
the violation of water quality standards.");40 C.F.R. § 123.25 (stating that section 122.4 applies to state
programs).
34 15A N.C.Admin. Code 2B.0203.
35 N.C. Gen. Stat. § 143-215.1(b)(1).
36 15A N.C.Admin. Code 2H.0112(b)(2).
37 15A N.C.Admin. Code 2B.0211(2) (emphasis added).
38 N.C. Gen. Stat. § 143-215.1(b)(2).
39Id.
40 See Attorney General Advisory Opinion: Water Quality Permitting;G.S. 143-215.1 (April 24, 1996),
http://www.ncdoj.gov/About-DOJ/Legal-S ervices/Legal-Opinions/Opinions/Water-Quality-
Permitting.aspx(finding that the Environmental Management Commission was authorized to request
8

In addition to its permitting obligations, DWR must also prepare a list("303(d) list") of
impaired and threatened waters in the State and submit this list to EPA every two years.41 States
must develop a Total Daily Maximum Load("TMDL") for those water bodies on the 303(d) list
for the pollutant of concern.42 A TMDL establishes limits on point and nonpoint sources of the
pollutant(s) of concern for a water body so that water quality standards may be met 43
Both Loves Creek,and the Rocky River are designated as Class C water bodies.44 Class
C waters"shall be suitable for aquatic life propagation and maintenance of biological integrity,
wildlife, secondary recreation, and agriculture."45 To protect Class C uses,North Carolina
regulations establish water quality standards specific to Class C water bodies for numerous water
quality parameters, including, among others,pH, dissolved oxygen, and chlorophyll-a.46 DWR
has also identified both Loves Creek and portions of the Rocky River as impaired and included
these water bodies on the 303(d) list for several years.47 The State has yet to establish a TMDL
for Loves Creek or the Rocky River.
•
B. The Draft Modification would violate water quality standards
DWR concedes that the Draft Modification would not meet water quality standards. The
agency acknowledges that the Siler City WWTP cannot treat the Total Nitrogen in the facility's
waste stream,that DWR has not required the facility to have any pollution controls in place for
Total Nitrogen until 2023,that high nitrogen discharges from the facility in the past have led to
water quality standard violations, and that nutrient loading from the facility with Mountaire's
discharge would exceed the historic levels under the Draft Modification.48 The Draft
Modification, as written,would make Loves Creek and the Rocky River even worse than their
historical degraded conditions, exacerbate existing nutrient pollution, and substantially and
adversely impact water quality on Loves Creek and downstream on the Rocky River until at least
information from hog processing facilities regarding the cumulative effects of issuing a water quality
permit in order to fully evaluate the cumulative effects of the facility).
41 33 U.S.C. § 1313(d)(2018).
42 Id •
43 Id.
44 See Classifications,N.C.DEP'T OF ENVT'L QUALITY—DIV.OF WATER RES.,
https://deq.nc.gov/about/divisions/water-resources/planning/classification-
standards/classifications#howdoldeterminemvstreamsclassification(last visited Nov.24,2018).
45 15A N.C. Admin. Code 2B.0211(2).
46 See 15A N.C.Admin. Code 2B.0211(3)-(22).
47 See Final 2016 Category 5 Assessments—303(d)List,supra note 11.
48 Fact Sheet,supra note 9, at 2("The permit has not included Total Nitrogen limits;thus,the plant was
not designed with denitrification for nitrogen removal."); id. at 3 ("[I]t hast not yet been determined what
numeric nutrient limits are necessary and sufficient to protect water quality."); id. at 3 ("However,the
pretreatment system is not designed to remove total nitrogen[sic]."); id. 3 ("The Town estimates that. . .
its plant's nitrogen discharge will likely return to previous (2004-2008)levels or greater and impact the
receiving waters as before unless significant controls are implemented."); id. at 4("[Nitrogen] [1]oads will
most likely increase in the interim,while plant improvements are underway...").
9

2023, and possibly even longer. For all of the reasons discussed below, the Draft Modification
would not protect designated uses on Loves Creek and the Rocky River in the short-term or long-
term, and thus,DWR would violate its obligations under federal and state water quality statutes
if it issues the Draft Modification as written. DWR must re-write the permit to require stricter
limits on Total Nitrogen discharges that protect water quality standards under all conditions49
and impose this limitation immediately. In addition, DWR should require monitoring on the
Rocky River between stations B5980000 and B5920000 so that the facility adequately monitors
for violations of its permit.
First,DWR cannot allow additional nutrient loading into impaired streams that have been
identified by DWR as degraded for dissolved oxygen, benthos, and nutrients.50 DWR is well-
aware that the unmitigated discharge of nutrient-laden wastewater from the Siler City WWTP
has violated water quality standards in the past and would do so under the provisions of the Draft
Modification.51 Yet,that is what is allowed by the Draft Modification. The absence of a TMDL
or nutrient standards in this watershed must advise caution on DWR's part. To allow further
pollution under existing degraded conditions violates the letter and spirit of the Clean Water Act
and North Carolina water quality laws.
In addition, DWR establishes an arbitrary Total Nitrogen load limit that would not protect
existing uses of Loves Creek or the Rocky River. This inadequate Total Nitrogen limit is the
foundation of the Draft Modification, rendering the rest of the permit flawed as well. The
proposed limit of 73,058 lb/year of Total Nitrogen, or 6.0 mg/L per day, is merely a 3 percent
decrease in current Total Nitrogen loading.52 DWR has not made any demonstration that this
effluent limit will protect existing uses in Loves Creek or improve conditions downstream in the
Rocky River. In fact,the opposite may be true. Both Loves Creek and downstream on the
Rocky River have remained on the 303(d) list for several numeric and narrative criteria during
the last several cycles and continue to experience degraded conditions, despite the fact that the
4
9 Mountaire's pretreatment permit allows a 1.25 MGD monthly average discharge into the Siler City
WWTP and a daily maximum 1.65 MGD discharge into the facility, 1.65 MGD.Town of Siler City
Permit: Industrial User Pretreatment Permit(IUP)To Discharge Wastewater Under the Industrial
Pretreatment Program(Dec. 11,2017) [hereinafter Pretreatment Permit]. Effluent limits must be written
in order to protect water quality during all conditions, including during peak discharge from the
Mountaire facility and during rainfall events when the facility experiences overflow of its capacity.
50 See N.C. Gen. Stat. § 143-215.1(b)(1)("The Commission shall act on all permits so as to prevent,so
far as reasonably possible, considering relevant standards under State and federal laws, any significant
increase in pollution of the waters of the State from any new or enlarged sources."); 15A N.C.Admin.
Code 02H.0112(c); 15A N.C.Admin. Code 2B..0203; 15 N.C.Admin. Code 2B.0211(2).
51 See, e.g., Fact Sheet,supra note 9, at 2 (noting that a 2011 evaluation of the Siler City WWTP found
that the high nitrogen levels in the facility's discharge led to high nutrient concentrations in Loves Creek
and downstream in the Rocky River and that this high nutrient loading likely contributed to algal growth
and chlorophyll-a violations in the Rocky River and later acknowledging that the discharge permitted
under the Draft Modification would allow even more Total Nitrogen to be discharged from the facility).
52 The 2016-17 Total Nitrogen discharge from the Siler City WWTP amounted to approximately 75,433
lb./year. See Fact Sheet,supra note 9, at 4.
10

Siler City WWTP has not accepted discharges from poultry processors since 2011.53 Other than
stating that the 2023 goal would not"exceed its current municipal-only discharge loads,"DWR
does not further explain or make any demonstration that this Total Nitrogen limit would protect
designated Class C uses.
Further,the Draft Modification allows for violation of water quality standards for the
foreseeable future. The Draft Modification would allow Siler City to discharge an
unprecedented and unmitigated amount of Total Nitrogen into Loves Creek under the Draft
Modification for a minimum of 22 months and likely until 2023. Under Condition A(10) of the
permit, Siler City must conduct a nitrogen removal optimization analysis to determine whether
minor upgrades at the facility can achieve nitrogen removal and implement the most effective
optimization measures within 22 months of issuing the permit.54 Even if the non-binding 30
percent nitrogen removal target is voluntarily met by the Town, Total Nitrogen discharges from
the facility will exceed historic levels which have harmed Loves Creek and the Rocky River.55
DWR's supposed"compliance schedule" is not a compliance schedule at all;the Draft
Modification does not require compliance with a Total Nitrogen effluent limitation until 2023,
and establishes no limits on Total Nitrogen discharges in the interim. This is not allowed under
the CWA or state water quality statues and regulations.
During phase one of Mountaire's production, Siler City's WWTP discharge is expected
to contain 643 lb/day of Total Nitrogen,which is only slightly less than the Total Nitrogen levels
observed between 2004 and 2008,when two poultry processors were discharging into facility
and polluting downstream waters.56 During phase two of Mountaire's operations,which is
expected only six months into production,the Total Nitrogen load from the Siler City WWTP is
expected to amount to 989 lb/day of Total Nitrogen.57 This effluent would have 33 percent
higher Total Nitrogen content than the discharge from the facility when two poultry processers
were in operation and downstream waters were heavily degraded impacting aquatic life and
downstream users.58
Finally,the land application of sludge and increase in poultry growing operations
expected as a result of Mountaire's opening would add even more sources of nutrient pollution in
this watershed;these additional sources of pollution are not accounted for in the limits imposed
in the Draft Modification. The opening of Mountaire's processing facility in Siler City would
53 See Final 2016 Category 5 Assessments—303(d)List,supra note 11.
54 At the November 16,2018,meeting of the Rocky River Management Team, a representative from Siler
City stated that the Town had not yet contracted with an engineering firm to conduct the optimization
study.
55 Fact Sheet,supra note 9, at 2.
56 See id. at 5 (indicating that Mountaire's initial discharge is estimated to include 643 lb/day of Total
Nitrogen,which is only 24 lb/day of Total Nitrogen less than the levels recorded between 2004 and 2008
when two poultry processors discharged process wastewater into Siler City WWTP).
57 See id.
58 See id;see also Alderman,supra note 1.
11

,
lead to the construction and operation of numerous poultry barns in the vicinity of the facility.
While Mountaire has shared little information publicly about how much poultry the facility will
process or how many growers must raise poultry in order to meet its production goals, history
strongly suggests that the poultry growing business in the area will expand substantially in the
coming months.59 Poultry barns use a primitive animal waste management system,which
involves merely piling chicken litter outside of barns; this waste contains approximately 36
pounds of total nitrogen and 55 pounds of phosphorus per ton of manure.60 Substantial research
indicates that excess nutrients generated by livestock farms enter groundwater, run off into
surface waters, and are deposited from the atmosphere into nearby waterways.61 DWR was
required to evaluate the"cumulative effects" of all activities when considering the Draft
Modification.62 Neither the fact sheet nor the Draft Modification reflect any consideration of
these effects to impacted watersheds.
III. Mountaire's pretreatment permit does not protect water quality standards
The Draft Modification, as written, effectively allows Mountaire to discharge
uncontrolled amounts of Total Nitrogen into Loves Creek and the Rocky River without a permit
in violation of the Clean Water Act and state water quality laws. Mountaire, a multi-billion
dollar company, received millions of taxpayer dollars in order to locate in Siler City.63 DWR
must require Siler City to impose stricter limits on Total Nitrogen in Mountaire's pretreatment
permit immediately by imposing more stringent effluent limitations in the Draft Modification.
Siler City does not have to immediately install expensive pollution control technology in order
for it to comply with water quality standards. Instead,the Town can and must be required to
impose effluent limits on Mountaire in order for the Town to meet its obligations under the
CWA,thus shifting the cost of compliance to well-funded industrial users. Imposing strict
requirements on Mountaire's discharge is especially important in light of the company's poor
history of compliance with water quality permits in other states.
A. Overview of Pretreatment program
59 See Andrew Barksdale,Sanderson Farms considering Cumberland County for chicken processing
plant; business would employ 1,100 workers,FAYETTEVILLE OBSERVER(July 15,2014),
https://www.fayobserver.com/1943edcc-c430-5cad-8e69-ada96ed1934a.html (indicating that a proposed
Sanderson Farms' poultry processing facility in Wilson County would have required 500 new chicken
barns in a 75-mile radius of that facility in order to meet the production goals of the processing plant).
60 See Memorandum from Victor D'Amato, et. al, Tetra Tech,to Blakely Hildebrand, et. al, Southern
Environmental Law Center, Sect.3.4.3 (Sept.29,2015)(attached as Exhibitl0).
61 See, e.g.,See Surface-Water Quality in Agricultural Watersheds of the North Carolina Coastal Plain
Associated with Concentrated Animal Feeding Operations,U.S. Geological Survey(2015),Exhibit F, at
5 (attached as Exhibit11).
62 See N.C. Gen. Stat. § 143-215.1(b)(2).
63 See Will Doran,Immigrants say a Jesus-centered'chicken factory is forcing them into homelessness,
NEWS&OBSERVER(March 23,2018) (attached as Exhibit12) (noting that Mountaire"has received
millions of dollars in taxpayer-funded incentives").
12

The Pretreatment program mirrors and tiers from the NPDES permitting process.64
Under the Clean Water Act, wastewater must be treated for both"direct discharges"and
"indirect discharges" into surface waters. Direct discharges are generally considered point
sources and are permitted under the NPDES program.65 Indirect discharges from industrial and
commercial users ("IUs"), on the other hand, discharge wastewater into Publicly Owned
Treatment Works ("POTW") system, including wastewater treatment plants like the Siler City
WWTP;these indirect discharges also require permits.66 The goal of the Pretreatment program
is to prevent harm to the POTW or surface waters into which POTWs discharge.67 EPA has
delegated pretreatment authority to DWR, and DWR has largely delegated pretreatment authority
to POTWs.68 DWR, however, maintains a supervisory role under the program. DWR must
incorporate the terms of local Pretreatment programs into NPDES permits for POTWs that
manage a Pretreatment program so that the Pretreatment program is an enforceable component of
the POTW's NPDES permit.69
Generally speaking,the Clean Water Act and the regulations implementing it prohibit the
"pass through" of pollutants from an IU through the POTW system that will cause a violation of
a POTW's NPDES permit.70 Thus, a POTW's NPDES permit is the guide for the pretreatment
permit; if the NPDES permit includes effluent limitations for specific pollutants,the POTW must
ensure that any IUs adequately treat such pollutants before discharging into the POTW so that
the POTW can comply with its NPDES permit.71 Neither North Carolina nor EPA regulations
prohibit a POTW from establishing limitations more stringent than those included in the
64 See National Pretreatment Program,U.S.ENVT'L PROTECTION AGENCY,
https://www.epa.gov/npdes/national-pretreatment-program (last visited Nov. 25,2018).
65 See 33 U.S.C. §1313.
66 See 40 C.F.R.Part 403.
67 See 40 C.F.R. § 403.2.
68 See National Pollutant Discharge Elimination System Memorandum of Agreement between the State of
North Carolina and the United States Environmental Protection Agency Region 4(Oct.2007),
https://www.epa.gov/sites/production/files/2013-09/documents/nc-moa-npdes.pdf.
69 40 C.F.R. §403.8(c)("A POTW may develop an appropriate POTW Pretreatment Program any time
before the time limit set forth in paragraph(b)of this section.The POTW's NPDES Permit will be
reissued or modified by the NPDES State or EPA to incorporate the approved Program as enforceable
conditions of the Permit.");see also U.S. v. City of Detroit,Mich., 940 F. Supp. 1097, 1101 (E.D.Mich.
1996)("[T]he law plainly states that a pretreatment program may only be enforced when incorporated
into a permit.").
70 40 C.F.R. §403.3(p) (defming a"pass through"as"a Discharge which exits the POTW into waters of
the United States in quantities or concentrations which, alone or in conjunction with a discharge or
discharges from other sources, is a cause of violation of any requirement of the POTW's NPDES permit.")
(emphasis added);see also 15 N.C.Admin. Code 2H.0903(23)(defining"pass through"as"a discharge
which exits the POTW into the waters of the state in quantities or concentrations which,alone or with
discharges from other sources, causes a violation, including an increase in the magnitude or duration of a
violation of the control authority's(or the POTW's, if different from the control authority)NPDES,
collection system, or non-discharge permit.").
71 See 40 C.F.R. § 403.2.
13

,
POTW's NPDES permit. EPA regulations require that pretreatment program information be
included in the POTW's NPDES permit.72
B. Siler City's Pretreatment program
The Town of Siler City manages a pretreatment program under authority delegated to it
by DWR. The Town issued Mountaire a pretreatment permit in December 2017,well before the
Draft Modification was issued by DWR.73 Mountaire's permit expires in December 2020.74 The
pretreatment permit requires Mountaire to treat its process wastewater for biological oxygen
demand,total suspended solids, Total Kjeldahl Nitrogen, ammonia, and Total Phosphorus.75
Most importantly,the Town does not limit Mountaire's discharge of Total Nitrogen into the
waste stream for the WWTP.76 The terms of the pretreatment permit require Mountaire to
"minimize or prevent any discharge in violation of this permit which has a reasonable likelihood
of adversely affecting human health, the POTW, the waters receiving the POTW discharge, or
the environment."77 In addition,the Town may reopen Mountaire's permit if its NPDES permit
is modified by DWR to include any conditions or limitations that are more stringent than any
limitations currently imposed by the pretreatment permit.78
Whether DWR finalizes Draft Modification as written or requires more stringent
limitations, Siler City must reopen Mountaire's permit as soon as DWR modifies the Town's
NPDES permit under the terms of Mountaire's permit and its obligations under the Pretreatment
program. Should DWR issue the Draft Modification as written, Siler City WWTP must work
toward Total Nitrogen reductions, and both Siler City and Mountaire would be on notice of
effluent limitations in Siler City's NPDES permit. If DWR requires a more stringent Total
Nitrogen limit immediately or imposes a tighter compliance schedule, as Rocky River Watch
proposes in these comments, Siler City must ensure that its pretreatment program complies with
the new limitations. Regardless, Mountaire must be required to remove Total Nitrogen from its
7240 C.F.R. § 403.8(c).See Jeffrey M. Gaba&Donald Stever, 1 L. of Solid Waste,Pollut.Prevent. and
Recycl. § 5:12(2018);Donald W. Stever et al.,2 L. of Envtl.Prot. § 13:89 (2018).Upon pretreatment
program approval,the Approval Authority(in our case the Director of DWR) is responsible for
incorporating it into the POTW's NPDES permit.U.S.ENVTL.PROT.AGENCY,EPA-833-B-11-001,
INTRODUCTION TO THE NATIONAL PRETREATMENT PROGRAM 2-5(2011),
https://www3.epa.gov/npdes/pubs/pretreatment program intro 2011.pdf.The POTW must then
implement that program as approved.Id. at 4-13.Failure to adequately fulfill such activities constitutes an
NPDES violation and could subject the POTW to enforcement actions.U.S.ENVTL.PROT.AGENCY,833-
R-12-001A,INDUSTRIAL USER PERMITTING GUIDANCE MANUAL1-3 (2012), -
https://www.epa.gov/sites/production/files/2015-
10/documents/industrial user permitting manual full.pdf.
73 Pretreament Permit,supra note 49.
74 Id.
75 See id. at 4.
76 See id.
77 Id. at 7(emphasis added)
78 See id. at 10.
14

waste stream before discharging into Siler City WWTP, and must be required to do so before
extensive harm is done to Loves Creek and the Rocky River. DWR must use its oversight
authority under the Pretreatment program to require Siler City to take this action. Otherwise,
Mountaire's discharge into the Siler City WWTP and ultimately into Loves Creek and the Rocky
River would be prohibited as a"pass through"under the Clean Water Act and would further
degrade already impaired waters.79
The Clean Water Act and state water quality laws do not allow DWR or Siler City to turn
a blind eye to nutrient pollution in Loves Creek or to be absolved of their duties to protect
waterways under the Pretreatment program. DWR acknowledges that Mountaire's discharges
into the Siler City WWTP will contribute to nutrient pollution,yet fails to do anything about it
through the Draft Modification. DWR must require Siler City to impose stringent Total Nitrogen
limits in its pretreatment permit for Mountaire. In addition,to comply with EPA regulations,
DWR must include Siler City's Pretreatment program in the facility's NPDES permit.80
The company's substantial history of noncompliance with permits in other states should
advise caution.81 As both our legislature and the Environmental Management Commission have
recognized,past performance is a reliable indicator of future action and it is essential for DWR
and Siear City to evaluate Mountaire's compliance history before making a permitting
decision.82
79 40 C.F.R. §403.3(p)(defining a"pass through"as"a Discharge which exits the POTW into waters of
the United States in quantities or concentrations which, alone or in conjunction with a discharge or
discharges from other sources, is a cause of violation of any requirement of the POTW's NPDES permit.")
(emphasis added);see also 15 N.C.Admin. Code 2H.0903(23)(defining"pass through"as"a discharge
which exits the POTW into the waters of the state in quantities or concentrations which, alone or with
discharges from other sources, causes a violation, including an increase in the magnitude or duration of a
violation of the control authority's(or the POTW's,if different from the control authority)NPDES,
collection system, or non-discharge permit.").
80 See supra note 72.
81 See Letter Deane H.Bartlett, Senior Asst.Regional Counsel,U.S.Envt'l Protection Agency,to Jeremy
Homer,Prkowski&Guerke(March 3,2003)(attaching consent order which concludes that Mountaire's
Delaware processing facility has contaminated groundwater in violation of the Safe Drinking Water Act
and settling claims) (attached as Exhibit 13);see also Michael Globetti,DNREC files complaint and
consent order against Mountaire Farms for wastewater permit violations,DELAWARE DEPT OF NAT.RES.
AND ENVT'L CONTROL(Sept. 25,2015)(citing violations fo Mountaire's NPDES permit)(attached as
Exhibit 14);Food& Water Watch Finds Severe Permit Violations at Mountaire Farms, Inc.,FOOD&
WATER WATCH(Aug.. 6,2015)(documenting Mountaire's"significant and continuing discharge
violations"for several pollutants for at least four years) (attached as Exhibit 15);Maddy Lauria,
Mountaire Farms'troubles mount as company is hit with lawsuits over water pollution claims,
DELAWARE NEWS JOURNAL(June 28,2018)(describing class action lawsuit filed against Mountaire
Farms for spraying contaminated wastewater near its facility)(attached as Exhibit 16).
82 See N.C. Gen. Stat. § 143-215.1(b)(4)2; 15A N.C.Admin. Code 2T.0120.
15

r , 1
IV. The endangered Cape Fear Shiner and its critical habitat may be adversely
impacted by the Draft Modification
The endangered Cape Fear Shiner is endemic to the Cape Fear River watershed, and has
been consistently listed by the U.S. Fish and Wildlife Service ("FWS") as endangered since
1987. A key stressor for this population is poor water quality. The Draft Modification would
further degrade water quality in Loves Creek and downstream in the Rocky River,potentially
impacting the survival of the species.
In addition, in October 2018, FWS proposed listing the Atlantic pigtoe mussel,which is
found in the Rocky River, for threatened status under the federal Endangered Species Act
("ESA"). 83 This species is threatened by water pollution from"sewage treatment plants . . .
wastewater discharges,"which"disrupt[] natural flow patterns, scour[] river bottoms, chang[e]
water temperatures, and fragment[] habitat.84 DWR should consider impacts to this species
when making a final decision on the Siler City WWTP NPDES permit modification.
A. Legal Background of the Endangered Species Act
The ESA prohibits the taking85 of any listed species86 and any action authorized, funded,
or carried out by a government agency from likely jeopardizing the continued existence of any
endangered or threatened species, or from destroying or adversely modifying their critical
habitat.87'88 An endangered species' critical habitat includes the spaces that it occupied at the
time it was listed as endangered, which are spaces characterized by the physical or biological
features necessary for the species' conservation.89 If a government action is likely to affect an
endangered species,FWS may be required to issue a biological opinion, which"states . . .
83 Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d)Rule and
Cirtical Habitat Designation for Atlantic pigtoe mussel, 83 Fed.Reg. 51570 (Oct. 11,2018).
84 Fish and Wildlife Service proposes threatened status for declining mussel:Proposed critical habitat
designation and economic analysis available for review,U.S.FISH&WILDLIFE SVC. (Oct. 10,2018),
https://www.fws.gov/southeast/news/2018/10/fish-and-wildlife-service-proposes-threatened-status-for-
declining-mussel/.
85 To"take"includes harassing,harming,pursuing,hunting,shooting,wounding,killing,trapping,
capturing, or collecting, or any attempt to do any of previous. 16 U.S.C. § 1532(19)(2018).
86 16 U.S.C. § 1538(a)(1)(B) (2018).
87 16 U.S.C. § 1536(a)(2) (2018).
88"Jeopardize the continued existence of means to engage in an action that reasonably would be expected,
directly or indirectly,to reduce appreciably the likelihood of both the survival and recovery of a listed
species in the wild by reducing the reproduction,numbers, or distribution of that species." 50 C.F.R. §
402.02(2018).
89 16 U.S.C. § 1532(5)(A)(2018).
16

•
whether or not [a] Federal action is likely to jeopardize the continued existence of listed species
or result in the destruction or adverse modification of critical habitat."9°
B. Expected impacts of decreased water quality on the Cape Fear shiner
The Cape Fear shiner(Notropis mekistocholas) is a small minnow that will sometimes
swim with schools of other minnow species.91 FWS listed the Cape Fear Shiner as endangered in
1987, and the species has remained on the endangered species ever since.92 FWS has designated
several critical habitat areas for Cape Fear shiner in central North Carolina, including sections of
Bear Creek,Rocky River, and Deep River.93
The Cape Fear shiner's survival is threatened by any factor that degrades habitat or water
quality in the river where they live.94 These factors include wastewater discharges, increases in
agricultural runoff, land use changes, stream channel modification, and changes in stream flow.
95 FWS's recovery plan for the species requires noticeable improvement in water.96 FWS also
reports that"[r]ecent habitat assessment throughout the Cape Fear Shiner's historical range
indicate that water quality and riparian degradation pose substantial threats to the shiner's
recovery."97
As discussed above,the Draft Modification would allow unprecedented nutrient pollution
in Loves Creek and the Rocky River. The increase in nutrients in the critical habitat for the Cape
Fear shiner would cause a decline in water quality that is likely to further jeopardize the species.
DWR should evaluate the impact of the Draft Modification on the Cape Fear shiner before
issuing any permit that would additionally degrade its critical habitat, either on a short-term or
long-term basis.98
V. Conclusion
For the above reasons,the Draft Modification would fail to protect designated uses for
Loves Creek and the Rocky River and would violate water quality standards designed to protect
90 50 CFR§402.02.See also Section 7 Consultation Issued Biological Opinions,FWS,
https://ecos.fws.gov/ecp/report/biological-opinion.html(last visited Nov.2,2018)(illustrating the
Biological Opinions created by FWS).
91 Cape Fear Shiner(Notropis mekistocholas),U.S.FWS,https://www.fws.gov/nc-es/fish/cfshiner.html
(last visited Nov. 7,2018).
92 Endangered and Threatened Wildlife and Plants;Determination of Endangered Species Status and
Designation of Critical Habitat for Cape Fear Shiner, 52 Fed.Reg. 36034(Sept.25, 1987).
93 Id at 36037.
94 Id. at 36034.
95 Id at 36036.
96 U.S.FWS,SOUTHEAST REGION,CAPE FEAR SHINER(NOTROPISMEKISTOCHOLAS)5-YEAR REVIEW:
SUMMARY AND EVALUATION,https://ecos.fws.gov/docs/five_year_review/doc5218.pdf.
•
97 Id. at 23.
98 Endangered Species Status and Designation of Critical Habitat, 52 Fed.Reg. at 36037.
17

those uses. Thank you for your consideration of these comments. Should a public hearing be
scheduled on this matter, SELC may submit additional comments on the Draft Modification.
Please contact me at 919-967-1450 or bhildebrandc selcnc.org if you have any questions or wish
to discuss this matter further.
Sincerely,
Blakely Hildebrand
Staff Attorney
Enclosures
CC (via email): Connie Allred,Rocky River Watch
Julie Gryzb, Supervisor,NPDES Complex Permitting,DWR
Jeff Poupart, Chief, Water Quality Permitting
Nora Deamer,Basin Planner, Cape Fear River Basin, DWR
Danny Smith, Regional Supervisor,Raleigh Regional Office
Deborah Gore, Supervisor,Pretreatment,Emergency Response,&
Collection Systems Branch,DWR
18