NC0000361_Comments_20190219

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 48 PATTON AVENUE.SUITE 304 Facsimile 828-258-2024
ASHEVILLE,NC 28801-3321
February 19, 2019 RECE%VFD/DENRIDWR
FEa 2 5 2019
David Hill Water Resources
NCDEQ-DWR Permitting Section
Water Quality Permitting Section
1617 Mail Service Center
Raleigh,NC 27699-1617
[e-mail]
Re: Permit Renewals for Pollution Discharges to the North Toe River
Sibelco NPDES Permits:NC0000175,NC0000361,NC0084620 and NC0085839
Quartz Corps NPDES Permits:NC0000400,NC0000353
On behalf of the French Broad Riverkeeper,MountainTrue, Defenders of Wildlife, and
the Southern Environmental Law Center,we submit the following comments on DEQ's
proposed renewal of pollution discharge permits for six facilities that process mineral ore and
discharge wastewater into the North Toe River near Spruce Pine,North Carolina. With these
comments we supplement our February 7,2019,request for public hearing.
The French Broad Riverkeeper works to monitor and protect the quality of our region's
waterways,including the North Toe River, and fights for safe and healthy waterways for all
citizens in the French Broad River watershed by bringing together local residents and
communities to identify pollution sources,enforce environmental laws, and educate and
empower the public. The French Broad Riverkeeper program is part of MountainTrue.
MountainTrue is a nonprofit organization whose mission includes protecting streams and rivers
from pollution in Western North Carolina. MountainTrue's members use the North Toe River
for recreation.
Defenders of Wildlife is dedicated to the protection of all native animals and plants in
their natural communities. With more than 1.2 million members and activists,Defenders of
Wildlife focuses on wildlife and habitat conservation and the safeguarding of biodiversity.
The North Toe River provides recreation opportunities for paddlers, anglers, and
swimmers,boosts the local tourism economy, is home to trout, and provides critical habitat for
the federally protected Appalachian elktoe. The recreation economy, trout, and other aquatic
species all depend on clear mountain rivers to thrive. Because of wastewater discharges from the
feldspar mines and processing facilities concentrated along the North Toe River,the river
continues to suffer from the effects of pollution. Multiple processing facilities that seek permit
renewals have been issued notices of violation in recent years. The ongoing pollution of the
North Toe is not without consequence. The river has been listed as impaired for turbidity for
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
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over a decade. Water quality sampling conducted by the French Broad Riverkeeper over the last
several years confirms the turbidity problems are ongoing and acute. See North Toe River Map,
Statement of H. Carson and Sampling Summary, Aft. A-C. Turbidity is not the only problem.
EPA has recognized the feldspar processing facilities are among top dischargers for fluoride and
noted permit violations in its review of effluent data.' Instream data from the last permit cycle
show exceedances of the fluoride standard are occurring in the North Toe River. The river is
also suffering impairment of recreation, aquatic life, and aesthetic narrative water quality
standards. See Statements of H. Carson and S. Evans and photographs at Att. B-E. Confirming
this,just last summer,the North Toe closed to the public and swimmers had to exit the water
after a hydrofluoric acid2 spill from the Altapass facility caused a fish ki11.3
Rather than abate these problems,the proposed draft permits will perpetuate water
quality problems in the river. Although there are minor improvements,the Clean Water Act
("CWA")and state laws implementing delegated CWA authority require far more. Because
these draft permits do not ensure compliance with applicable water quality standards and will
contribute to violations,they cannot issue in compliance with the CWA,relevant federal
regulations,or state law.
The draft permits must be withdrawn, substantially revised, and reissued for public
comment. Specifically,the following changes, as well as curing other deficiencies discussed
below, are required:
• Total suspended solids and flouride numeric limits must be tightened through P� a
proper application of technology-based and water quality-based limits.
• Sibelco's Red Hill and Crystal facilities report discharging chloride at 10x to 25x
the water quality standard, and the permits provide no limit. Numeric limits must
be added,particularly since Sibelco indicates compliance with pH standards may
require additional use of chemicals.
• Limits must protect narrative standards for recreation, aquatic life, and aesthetic
uses of the river.
• The processing facilities' handling of wastewater treatment sludge must comply
with permit terms and state law.
• DWR must consider impacts to endangered Appalachian elktoe.
I See EPA,Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-
021 (Sept.2011)at 9-14,9-19,https://www.epa.gov/sites/production/files/2018-05/documents/2010 eg-plan-
tsd final sept-2011.pdf.
2 Hydrogen fluoride dissolves in water to form hydrofluoric acid. ATSDR Toxic Substances Portal-
Fluorides,Hydrogen Fluoride,and Fluorine,https://www.atsdr.cdc.gov/toxfaqs/tf.asp?id=211&tid=38.
3 See https://wlos.com/news/local/dozens-of-fish-in-north-toe-river-killed-after-quarry-leak-state-offcials-
say;https://www.citizen-times.com/story/news/local/2018/07/19/spruce-pines-north-toe-river-suffers-acid-leak-
sewagespill/800103002/;Assessment of Civil Penalty for Violations of the Reporting Requirements(Case No.:LM-
2018-0051),NPDES Permit No.0000353(Feb.4,2019),on file with DEQ.
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A. DEQ Must Impose Tighter Effluent Limits
DEQ proposes to renew the following six National Pollutant Discharge Elimination
System("NPDES")permits for mineral processing facilities to discharge polluted wastewater
into the North Toe River. From upstream to downstream these facilities are: Sibelco's
Schoolhouse facility(NC0000361), Quartz Corps' Altapass facility(NC0000353), Sibelco's
Crystal facility(NC0084620), Quartz Corps' K-T Feldspar facility(NC0000400), Sibelco's
North America facility(NC0000175), and Sibelco's Red Hill facility(NC0085839). Submitted
with these comments is a map of all of the facilities concentrated along the North Toe. Att. A.
On any given day,the draft permits together would allow a discharge of over 10,000
pounds of total suspended solids("TSS")—or over five tons—into the North Toe River. The
North Toe River has been listed as impaired for turbidity for over a decade. Water quality data
collected by the French Broad Riverkeeper confirms the impairment is ongoing. The attached
summary of turbidity sampling results includes multiple locations in the North Toe River,
between upstream of Grassy Creek and Penland Bridge from 2015-2018. Att. C. Instream
exceedances measured in the North Toe River ranged from 23.4 NTU to 955 NTU—including
two samples that were too high to register on a turbidimeter. Many exceedances recorded by the
French Broad Riverkeeper far exceed the State's own ambient monitoring data. The draft
permits propose to allow dumping up to five tons daily of TSS,or the equivalent weight of
several dump truck loads monthly,4 into a river already impaired for turbidity. Not surprisingly,
this will not reasonably ensure compliance with water quality standards.
In similar fashion, fluoride discharges are allowed up to a combined maximum of nearly
2,000 pounds, effectively maxing out the river's assimilative capacity and causing localized
exceedances. See DWR,Appendix A: Fluoride Wasteload,North Toe River Mining
Dischargers. The EPA in 2010 found the Altapass facility alone was one of the leading
dischargers of fluoride in the mineral processing industry nationwide.
Chloride discharges are unlimited in the permits. Two facilities, Sibelco's Crystal and
Red Hill facilities,discharged effluent concentrations of up to l Ox to 25x the water quality
standards action level of 230 mg/L. Yet,there are no limits.
In all three instances DWR neglects its mandate to impose both technology-based limits
and limits sufficiently stringent to protect water quality. The result is lax or non-existent limits.
NPDES permits control pollution by setting limits based on the technology available to treat
pollutants("technology-based effluent limits")and any additional limits necessary to protect
water quality("water quality-based effluent limits"). 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. §
122.44(a)(1), (d). DWR may issue an NPDES permit only if the permit assures compliance with
all technology-based and water quality-based effluent limits. 33 U.S.C. § 1342(a)(1)(A); 40
C.F.R. § 122.43(a). Technology-based limits set the minimum level of control required in every
4 Monthly average limits(the mean of all daily discharges)combined across six facilities(5,128 pounds)
could allow for discharges totaling 153,840 pounds cumulated over the course of a 30-day month,or over 76 tons.
Assuming a dump truck with a 10-ton capacity by weight,this would be over seven dump truck loads.
3

NPDES permit. 40 C.F.R. § 125.3(a). A discharger must implement technology-based
standards, even if doing so goes beyond the level necessary to meet water quality standards.
NPDES Permit Writers' Manual at 5-1 (2010).5 And,conversely, if technology-based standards
are insufficient to meet water quality standards,then dischargers must do whatever is necessary
to satisfy the water quality standards. Id.
1. Technology-Based Effluent Limitations
Every NPDES permit"shall"contain technology-based effluent limits("TBELs"),which
set"the minimum level of control that must be imposed in a permit"under the NPDES program.
40 C.F.R. § 125.3(a)(emphasis added). These technology-based limits are set without regard to
and separate from water quality-based effluent limitations("WQBELs"), discussed below.
NPDES Permit Writers' Manual at 5-1.
Technology-based permit limits are derived from one of two sources: (1)national effluent
limitation guidelines("ELGs") issued by EPA for various industries, 33 U.S.C. § 1314(b),or(2)
case-by-case determinations using the"best professional judgment"of permit writers,when EPA
has not issued an ELG for an industry. See 33 U.S.C. § 1342(a)(1)(B);40 C.F.R. § 125.3(c)(2).
In addition to CWA regulations,North Carolina rules also require technology-based limits, and
in the absence of a promulgated ELG, direct staff to calculate a limit using EPA development
documents and other available information. See 15A N.C. Admin. Code 02B .0406(e).
The latter applies here: although EPA developed proposed ELGs for the feldspar mineral
processing subcategory decades ago—for TSS and fluoride—those limits were not promulgated.
See, e.g., EPA Final Development Document for Effluent Guidelines and Standards for the
Mineral Mining and Processing Industry, Point Source Category(July 1979); 40 Fed. Reg.
48,652,Notice of Interim Final Rulemaking(reserving subpart AI for the feldspar industry)(Oct.
16, 1975);40 C.F.R. § 436, subpart AI Feldspar Subcategory[reserved]. As a result,TBEL
limits here derive from the"best professional judgment"of the permit writer.
Here, DWR for the most part applied no TBELs. Neither federal nor state law allows
room for this option. Altapass is the clearest example. The TBEL analysis consists only of this
statement: "This facility is not subject to any Effluent Limitation Guidelines." NPDES Permit
0000353 Fact Sheet at 6. Even if an ELG has not been promulgated, all of the mining processing
facilities are subject to TBELs. For the remaining facilities,the fact sheets refer to a 1975 era
proposed ELG for TSS only, and that is apparently the end of technology-based consideration.
DWR must, at a minimum, go through proper steps to develop TBELs for fluoride,
chloride,and TSS. With non-conventional pollutants, like fluoride and chloride,TBELs are
based on"application of the best available technology economically achievable." 33 U.S.C. §
1311(b)(2)(C), (F). For a conventional pollutant like TSS, limits are based upon best practicable
control technology and best conventional pollutant control technology. 40 C.F.R. § 125.3 (a)(2)
5 Available at http://water.epa.gov/scitech/swguidance/standards/handbook/index.cfm.
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(assigning categories)and(d)(describing relevant factors for each category); 15A N.C. Admin.
Code 2B.0403 (4), (5),(7),(12).
• Flouride: DWR discusses fluoride limits only in relation to water quality-based
limits. However, before determining more stringent limitations to achieve water
quality standards, DWR must first impose TBELs. To start with, DWR can look
at the same '70s era documents it cites for TSS. From 1975-1979,EPA prepared
draft TBELs to address fluoride discharges in the feldspar processing industry.
Even though the limits were not promulgated,that does not end the inquiry. In
2010,EPA reviewed the mineral processing fluoride discharges. It noted: "The
1976 data showed that single-stage chemical precipitation could achieve effluent
fluoride concentrations of less than 10 mg/L through segregation and separate
treatment of fluoride-containing streams(U.S. EPA, 1976)." EPA 2010, 9.5.1
Wastewater Sources of Fluoride.6 Furthermore, "EPA determined that the top
fluoride discharging facilities have two-stage chemical precipitation with lime
treatment systems. This process is similar to that at phosphatic fertilizer
manufacturing facilities,which achieve fluoride concentrations of 15 mg/L or less
(U.S. EPA, 1974). Current technologies are achieving fluoride concentrations at
least as effective, sometimes achieving 2 mg/L effluent fluoride. The chemical
precipitation has improved by using calcium chloride(CaCl2)rather than lime,
while solids separation has improved by using polymers and membrane filters
(WC&E,2006; Ionics,Unknown; GCIP,2002)." EPA 2010,9.5.3 Fluoride
Wastewater Treatment. DWR must determine whether each processing facility
on the North Toe is employing best available technology to achieve fluoride
reductions. Effluent data provided by Quartz Corps with its applications suggests
no; its wastewater discharge fluoride concentration from NC0000400 is 54.1
mg/L—far higher than what EPA's technical documentation showed was
achievable. (Sibelco withheld this information from the applications DWR posted
to laserfiche, and we have requested it from DWR.) DWR must assess current
technologies available and impose TBELs for fluoride in all of the permits.
EPA's recent review suggests these can be expressed as mg/L limits in addition to
• mass,particularly since the relevant water quality standard is expressed as a
concentration. See 40 C.F.R. § 122.45 (f)(1)(ii)and(f)(2).
• Chloride: EPA recognized in 2010 that chemical precipitation at feldspar
processing facilities has improved using calcium chloride. Chloride is among the
pollutants discharged by the mineral processing facilities. The two newest
facilities discharging into the North Toe River indeed appear to discharge high
concentrations of chlorides. North Carolina's action level for chloride is 230
mg/L. 15A N.C. Admin. Code 2B .0211(22)(d). Sibelco's Red Hill and Crystal
6
Technical Support Document for the 2010 Effluent Guidelines Program Plan,EPA 820-R-10-021 (Sept.
2011)at 9-14,available at https://www.epa.gov/sites/production/files/20I 8-05/documents/2010 eg-plan-
tsd final sept-2011.pdf.
5

facilities, according to the fact sheets,have discharged daily maximums 10-to 25-
times over the water quality standard,reaching 2,450 and 5,198 mg/L. The draft
permits only require monitoring for chlorides. Chloride discharges are unlimited.
Again,this is error.
• TSS: Unlike fluoride and chloride, DWR does cite a limit for TSS derived from a
draft ELG limit from 1975,expressed in lb/1000 lbs. But that's the end of the
inquiry. As with fluoride,DWR must conduct an evaluation of technology
improvements in the last forty years,to assure TSS limits reflect best practicable
control technology. Even the slightly more current 1979 version of the
development document(DWR relies on an earlier draft), indicates technologies
available then were achieving TSS discharge concentrations lower than those
being discharged presently into the North Toe. For example,one Quartz Corps
processing facility reports long-term average concentrations of TSS at 150 mg/L
(Form 2C,NPDES Permit 0000400). Sibelco's Form 2C did not publicly disclose
pollutant concentrations for TSS,but the effluent data in the fact sheet notes
turbidity as high as 89 NTU(Fact Sheet NC0086420 at 3). EPA's 1979 review
determined TSS concentrations in wet feldspar processing were being then
achieved as low as 21-45 mg/L. DWR must assess current practicable control
technologies,now available, and develop relevant TSS limits.
More perplexing still,the proposed permit limits also appear to be much higher
than the actual performance of the facilities. With historical performance data in-
hand for TSS, DWR must reduce the limits to reflect actual technology being
implemented,before turning to assessing best conventional and practicable
control technologies.
2. DEO Must Impose WOBELS That Meet Water Quality Standards
In addition to applying technology-based effluent limits, every NPDES permit must also
include"any more stringent limitation, including those necessary to meet water quality
standards"established under state or federal law. 33 U.S.C. § 1311(b)(1)(C). This includes
controlling"all pollutants"that"have the reasonable potential to . . . contribute to an excursion
above any State water quality standard,"and standard includes"State narrative criteria for water
quality." 40 CFR § 122.44(d)(1)(i)(emphasis added).
North Carolina water quality rules also require water quality-based effluent limitations
and, like the federal requirement, assume applicable technology-based reductions are in place
first. Under the North Carolina framework, in places where minimum treatment technologies are
not stringent enough to meet water quality standards,called"water quality limited segments,"
DWR develops additional limitations to meet those standards. See 15A N.C. Admin. Code
02B.0404. The defmition of"water quality limited segment"refers to a segment where"water
quality does not meet applicable water quality standards or is not expected to meet them even
after the application of minimum treatment requirements." 15A N.C. Admin. Code 2B.0403
(13). Minimum treatment requirements, in turn,refer to categories of technologies required to
reduce pollution. 15A N.C. Admin. Code 2B.0403 (12),(13). In other words,water quality-
6

based limits are imposed after minimum treatment requirements derived from technology fail to
achieve water quality standards.
DWR's public notices here characterize the North Toe as"water quality limited" for
fluoride and TSS. While it is true that water quality does not meet those applicable standards,
the assumption that minimum treatment requirements have been imposed for TSS and fluoride is
not correct because, as discussed above, DWR skipped over evaluating minimum treatments
required to reduce these pollutants. Only when DWR corrects that analysis can it then determine
the degree of more stringent effluent limitations that will be necessary to reduce TSS and
fluoride. When it does so, it should correct the deficiencies below.
• TSS: The fact sheets acknowledge the North Toe River is"impaired for
turbidity." Both listed segments of the North Toe River are downstream of
industrial discharges of TSS from quartz mining.? In the context of permit
renewals for these facilities,the next relevant step would be to develop more
stringent limitations for TSS—a known cause of turbidity that has the"reasonable
potential to . . . contribute to an excursion"of the turbidity standard. 40 C.F.R. §
122.44(d)(1)(i). Rather than engage in a WQBEL exercise, DWR merely notes
"TSS is frozen at current loading" on account of the impairment. See, e.g., Fact
Sheet NPDES Permit 0000353 (carrying forward a daily maximum of 3,137
pounds of TSS into the North Toe River,while reporting instream data showing
turbidity excursions). For water quality limited segments,DWR's task is to
develop more stringent limitations necessary to meet those standards,not to freeze
existing permit limits,which in effect perpetuates the impairment.
• Fluoride: For fluoride, in lieu of performing a reasonable potential analysis,the
draft permits carry forward a waste load allocation("WLA")—apparently
developed over thirty years ago. See App. A to fact sheets: Fluoride Wasteload
Allocation,North Toe River Mining Discharges(discussing 1986 group
allocation). By design,the allocation uses what it describes as a"bubble permit"
concept that allows"localized impacts"and"flexibility for the dischargers to
maintain compliance." Id. Instream fluoride data reported confirms such
"localized"exceedances are occurring from upstream of the Crystal facility to
downstream of the Sibelco North America facility—a span of over five river
miles. The fluoride WLA approach is flawed for several reasons.
First, any attempt at assessing river-wide impacts from multiple dischargers must
actually account for all inputs of fluoride. The WLA acknowledges additional
fluoride loading is occurring through stormwater from the mines, yet the decades-
7 See,e.g.,NPDES Permit No.NC0000353,NPDES Permit No.0000400,NPDES Permit No.0000175,
NPDES Permit No.0000361,NPDES Permit No.0084620;each of the industrial discharge permits recognize total
suspended solids as sources of pollution.
7

old permitted WLA has not been revised to account for additional fluoride
loading.
Next,the bubble permit approach itself is problematic; it essentially converts a
miles-long stretch of river into a mixing zone where water quality exceedances of
fluoride are occurring. This cannot be squared with federal or state law, or
current NPDES permitting guidance,which requires limits sufficiently stringent
to assure water quality standards are met, and not(as here)exceeded. Even if a
mixing zone is appropriate for each fluoride discharge,NPDES guidance is clear
that any mixing zone must be far more constrained. EPA's own NPDES Permit
Writers' Manual cautions that"the use and size of the mixing zone must be
limited such that the waterbody as a whole will not be impaired and such that all
designated uses are maintained." 6.2.5.2 Mixing Zone Size(emphasis added).
Examples given are for defined geometric shapes that occupy portions of the
water column within rivers around outfalls,not mixing of multiple discharges for
miles of river—which risks creating a long, degraded stretch. The limits proposed
here,based on a stale WLA, are not sufficiently stringent to maintain water
quality standards,which is the basic objective of a WQBEL exercise.
• Chloride(Red Hill and Crystal facilities): The draft permits contain no TBELs
for chloride, and a monitor-only requirement derived from a reasonable potential
analysis("RPA"). This leaves the chloride discharges unlimited,which assures
no protection for water quality. In addition, it appears the RPA builds in
assumptions that ignore multiple dischargers of chloride on the stretch of river.
The fact sheet for Red Hill(NPDES Permit No. 000085839), for example,
indicates an assumption of"zero background,"when there are five upstream
dischargers of chloride. EPA's NPDES guidance instructs permit writers to use a
"critical background in-stream pollutant concentration in mg/L" in conducting
RPA—presumably to get a better understanding of real-world impacts of
additional discharges. NPDES Permit Writers' Manual at 6.3 (determining the
need for WQBELs).8 In re-evaluating the need for WQBELs, DWR should apply
NDPES guidance.
• Narrative criteria for deleterious substances,colored or other waste: The
draft permits are silent on compliance with North Carolina's narrative water
quality criteria prohibiting visible and other discharges that are injurious to
recreation and aquatic life. Clean Water Act regulations are clear that permit
limits must be developed to assure compliance with narrative water quality
criteria. See 40 C.F.R. § 122.44(d)(1)(i);see also NPDES Permit Writers'
Manual(2010) at 6-23 (describing this obligation for narrative criteria). North
Carolina's narrative water quality standard for deleterious substances and other
wastes allows their presence in"only such amounts as shall not render the waters
'Available at https://www.epa.gov/sites/production/files/2015-09/documents/pwm chapt 06.pdf.
8

injurious to public health, secondary recreation or to aquatic life and wildlife
aesthetic quality,or impair the waters for any designated uses." 15A N.C. Admin.
Code 2B.0211(12)(standards for Class C waters).
Attached are photos of the North Toe River during sampling and a statement
describing conditions in September 2015,during the prior permit cycle. See
Photographs and Statement of S. Evans&H. Carson(Att. B-E). The river was
not just turbid,but was an unnatural chalky white color—almost certainly
attributable to mining-related waste in the river. Deposits have piled up in places
at the river's edge, and the river had a caustic, chemical odor to paddlers. See id.
As these photos, statements from individuals in the river, and recent river closure
in summer 2018 indicate,9 recreation use is impaired by conditions in the North
Toe. The excessive discharges of pollution from these facilities, which create
visible changes to the water and produce a chemical smell,must be abated. The
draft permits make no effort to ascertain non-compliance with North Carolina's
narrative water quality standard—a gap that must be remedied.
• pH: We support DWR's revision of all permit limits to reflect the applicable
water quality standard,6-9 standard units. Although Sibelco contended in
comments it would have to add treatment to achieve this limit,the fact that such
treatment options are available is further confirmation that pH limits should be
tightened. To the extent Sibelco asserts"that adding additional chemicals to our
streams is not a preferred measure for maintaining water quality,"19 we agree.
The addition of chemicals to Sibelco's wastewater treatment system to achieve
tighter effluent limits should not result in more chemicals in the North Toe River;
Sibelco's wastewater effluent system ought to be designed to remove chemicals
from wastewater effluent discharge,not add them. If Sibelco's effluent discharge
profile would change based on complying with North Carolina's water quality
standard for pH, this would need to be disclosed through an amended application.
Any additional effluent discharge concentrations would have to be evaluated by
DWR.
B. Monitoring and Reporting
In addition to tightening permit limits themselves,a monthly average should be added to
Red Hill's fluoride discharges. EPA regulations mandate that all permit limits shall, unless
impracticable,be stated as both daily maximum and average monthly discharge limitations. 40
C.F.R. § 122.45(d). This is the only one of the six facilities that lacks a monthly average limit
for fluoride,indicating use of such a limit is not impracticable.
9 Assessment of Civil Penalty for Violations of the Reporting Requirements(Case No.:LM-2018-0051),
NPDES Permit No.0000353(Feb.4,2019),on file with DEQ.
1°Sibelco Response to Draft NPDES Permit Renewals(Nov.27,2018).
9

We support the addition of monitoring requirements for aluminum,copper, lead,nickel
and zinc to the draft permits,particularly based on the presence of metals in reported effluent
data and prior investigation of stormwater from mines that receive wastewater sludge,indicating
these are pollutants of concern. See, e.g., NPDES Permits 0000400 and 0000353, Short Form
2C. However, a monthly sampling frequency would be more useful than quarterly for purposes
of evaluating discharges of metals occurring on a continuing basis. Nothing in the fact sheet
demonstrates or suggests that monthly monitoring for metals is impractical, and monthly
monitoring appears necessary"to yield data which are representative of the monitored activity."
See 40 C.F.R. § 122.48(b).
C. Waste Disposal/Removed Substances
The permit renewal fact sheets reveal that the processing facilities have been treating
residuals,or sludge, from their wastewater treatment process as tailings, and disposing of them in
the mines. EPA, according to the fact sheets,has already expressed concern over"potential
pollutants" in stormwater from the mines because of these practices. Quartz Corps submitted
with its application a"sludge management plan"that describes this process for its facilities. As
described,these disposal practices appear to run afoul of NPDES permit conditions for sludge
disposal. The"removed substances"provision requires any sludge removed in the course of
treatment to comply with N.C. Gen. Stat. § 143-215.1 and to"prevent any pollutant from
entering waters of the State." NPDES Permit Standard Conditions, Sec. C (6). The facilities
must,under a separate condition,minimize or prevent any"sludge use or disposal in violation of
[the]permit with a reasonable likelihood of adversely affecting human health or the
environment." NPDES Permit Standard Conditions, Sec. B(2). Bypassing relevant permits for
sludge disposal,by treating wastewater sludge as mine tailings, appears to violate these
conditions.
D. Groundwater Monitoring
The permit renewal fact sheets indicate settling ponds are incorporated into some or all of
the wastewater treatment systems at all of the facilities. See, e.g., Fact Sheet,Quartz Corps
(NC0000400)(describing inorganic solids settling pond); Sibelco N.A. (NC0000175)
(stabilization ponds); Red Hill(NC0085839) (settling pond). The draft permits renewals do not
indicate whether those settling basins are lined, and the fact sheets do not indicate whether
groundwater contamination is a risk. Standard conditions for NPDES permits require
groundwater monitoring to"determine compliance . . . with the current groundwater standards."
NPDES Permit Standard Conditions,Part II, Sec. B;see also N.C. Gen. Stat. § 143-215.1(i), (k)
(addressing monitoring and corrective action for protection of groundwater). Groundwater
sampling should be required in the permit renewals around any unlined wastewater treatment
basins to assess compliance with groundwater standards.
E. DEQ Must Take Steps to Protect Federally Listed Appalachian Elktoe
All six of the discharges permitted under this renewal are located a short distance
upstream from designated critical habitat for the State-and federally-listed endangered
Appalachian elktoe mussel in the North and South Toe Rivers. Designation of Critical Habitat
10

for the Appalachian Elktoe, 67 Fed. Reg. 61,016, 61,027 (Sept. 27, 2002). In its most recent 5-
year review,which took place in 2017,the Fish and Wildlife Service assigned the elktoe a
recovery priority number of"5c," indicating"a high degree of threat and a low recovery
potential"and"reflect[ing] a species that may be in conflict with development activities or other
forms of economic activity." Appalachian Elktoe(Alasmidonta raveneliana) 5-Year Review:
Summary and Evaluation, at 3-4(Aug. 28, 2017).11 The North Toe and South Toe Appalachian
elktoe populations,part of the Nolichucky River basin population,are highly important in
preventing further declines in this species. According to the Fish and Wildlife Service,
"[b]ecause of the small size of the surviving populations of the Appalachian elktoe,the species'
restricted range, and the limited amount of suitable habitat available to the species, . . . actions
that are likely to destroy or adversely modify the Appalachian elktoe's critical habitat are also
likely to jeopardize this species." 67 Fed. Reg. at 61,029.
The Appalachian elktoe recovery plan points specifically to the protection of existing
elktoe"populations and remaining areas of suitable habitat"as "vital"to species recovery.
Recovery Plan For The Appalachian Elktoe, at 10(Aug. 26, 1996).12 At the time the recovery
plan was developed,the ellctoe population in the Nolichucky basin was one of only two known
populations. Recovery Plan at 2. The other, a population in the Little Tennessee River once
considered the healthiest and most robust population remaining, experienced a dramatic and
currently unexplained die off from 2005—2015. 5-Year Review at 5. The Nolichucky basin
population is now one of just seven known populations, and is significant as one of the two
largest and"most likely to maintain long-term viability." Id. This population is also important
because it"occup[ies] multiple independent watersheds,"which provides"protection from an
event that might affect only one of the watersheds,"while other populations are"vulnerable to
extirpation from a single event." Id. at 5-6.
Appalachian elktoe, like all mussels, is particularly susceptible to sedimentation, among
other causes noted for its decline. A primary factor causing the elimination of the species from
most of its historic range is"the runoff of silt and other pollutants from poorly implemented
mining,construction/development, agricultural, and past logging activities." Appalachian Elktoe
Determined To Be an Endangered Species, 59 Fed. Reg. 60,324, 60,326(Nov. 23, 1994).13 The
Appalachian elktoe in the South Toe River are already under threat from sedimentation related to
road construction, id. at 8; issuing these permits without attempting to address TSS exceedances
and turbidity impairment poses further risk to an already-struggling population that is vital to
species recovery.
Under the NPDES Memorandum of Agreement between North Carolina and the EPA,the
State is required to follow certain procedures in administering the delegated NPDES program.
NPDES Memorandum Of Agreement Between The State Of North Carolina And The United
11 Available at https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=F01J.
12 Available at https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=F01 J.
13 Available at https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=F01J.
11

States Environmental Protection Agency Region 4, at 12-13 (Oct. 15,2007).14 In order"to
address issues involving federally-listed species and designated critical habitats,relative to
issuance of NPDES permits,"the State has agreed to"provide notice and copies of draft permits
to the U.S.Fish and Wildlife Service and National Marine Fisheries Service." Id. at 12. This
mechanism exists so that the State"may receive information from the Services on federally-
listed species and designated critical habitats in State, with special emphasis on aquatic or
aquatically-dependent species." Id. at 12-13. As far as commenters are aware,the State has not
followed this procedure and elicited comment on critical habitat from FWS.
Additionally,the State is required to"develop site-specific management strategies"for
waters that"provide habitat for federally-listed aquatic animal species that are listed as
threatened or endangered." 15A N.C. Admin. Code 2B.0110. Such a management strategy can
be developed as part of designating the waters as Outstanding Resource Waters under 15A N.C.
Admin. Code 2B.0225,or as part of creating a basinwide water quality management plan under
15A N.C. Admin. Code 2B.0227. Rule.0110 requires that such a plan be developed within
"each watershed's first complete five year cycle following adoption of this Rule." Although Rule
.0110 went into effect in 2000,the State has developed neither an ORW designation nor a site-
specific management strategy through the basinwide management planning cycle for this critical
habitat. Permitting discharge of mining wastewater into this critical habitat without first
implementing such required management planning for species and water quality protection is
error.
F. Draft Permits Will Not Achieve Compliance with Water Quality Standards
State and federal law prohibit issuance of NPDES permits that contribute to violations of
water quality standards. Under the Clean Water Act,North Carolina cannot issue a NPDES
permit that will contribute to violations of water quality standards. See 33 U.S.C. §
1311(b)(1)(C). State regulations impose a similar requirement: "No permit may be issued when
the imposition of conditions cannot reasonably ensure compliance with applicable water quality
standards and regulations of all affected states." 15A N.C. Admin. Code 2H.0112(c)(fmal
action on NPDES permit applications).
These permit renewals would contribute to violations of water quality standards for
turbidity, fluoride, and recreation and aesthetic standards, for the reasons described above. In
addition to these shortcomings in the permit terms themselves, several of the facilities have a
recent history of non-compliance with these very permit terms. This is a separate reason to re-
evaluate whether the permit terms are sufficiently stringent to assure compliance with water
quality standards. The Altapass facility(NC0000353), for example,recently received NOVs and
penalties for overflows,a pH violation, and an acid spill,resulting in a fish kill. The Quartz
Corps(NC0000400)reports exceeding fluoride limits, and Red Hill(NC0085839)has received
recent NOVs for frequency and monitoring violations.
14 Available at https://www.epa.gov/sites/production/files/2013-09/documents/nc-moa-npdes.pdf.
12

Because the current conditions have been insufficient to ensure compliance for several
facilities, DWR should consider whether the same conditions would in fact achieve compliance
with water quality standards. In the absence of being able to reasonably ensure compliance with
water quality standards, a permit renewal cannot issue.
G. DEQ Should Hold a Public Hearing
The reauthorization of these multiple,polluted discharges for years to come, into the
same stretch of river that is a designated a trout stream and important to the local outdoor
recreation economy in Western North Carolina, is of significant public interest. We reiterate our
February 7, 2019, request to DEQ to hold a public hearing,pursuant to 15A N.C. Admin. Code
2H.0111 and .0109(b), so that the community and interested stakeholders have a voice in the
health and future of the North Toe River. As DWR moves forward, it is critical that DWR set
sufficiently stringent permit limits that will meaningfully address and abate pollution in the
North Toe River.
Sincerely,
jApiliAt)
Amelia Y. Burnette
Senior Attorney
Julie Reynolds-Engel
Associate Attorney
Cc: via email only
Linda Culpepper, DEQ
Jeff Poupart,DEQ
Janet Mizzi,FWS
Molly Davis, EPA
13

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DECLARATION OF HARTWELL CARSON
I, Hartwell Carson, being of legal age, declare as follows:
1. I am over the age of 18 and suffer from no legal incapacity. I have personal knowledge
of the matters stated herein.
2. I currently serve as the French Broad Riverkeeper and have worked in that role for over a
decade. Founded in 2001,the Riverkeeper program educates and advocates for the
protection and enjoyment of the entirety of the French Broad River watershed—including
the North Toe River—from a variety of threats, including pollution from surface water
discharges.
3. The French Broad Riverkeeper program is part of MountainTrue. MountainTrue is a
nonprofit organization dedicated to protecting streams and rivers from pollution in
Western North Carolina. MountainTrue's members include those who live near the
North Toe River and use and enjoy the river for recreation, like paddling and fishing.
4. My role as Riverkeeper includes serving as a watchdog for waterways within the French
Broad river system. This includes documenting sources of pollution within the watershed.
As part of that work, I have become familiar with impacts to water quality from mining
operations discharging to and degrading conditions in the North Toe River.
5. On multiple occasions in recent years, I have conducted turbidity sampling in the North
Toe River using an EPA compliant Hach 2100 turbidimeter. I recorded the results on a
spreadsheet with the date, site name, and site description. On each of these trips I have
had an opportunity to observe conditions in the North Toe River. Sampling results
obtained during four sampling events between September 2015 and December 2018 are
reflected in the table being submitted with these comments. Sampling included the stretch
of the North Toe River between the Altapass Highway Bridge, upstream of Grassy Creek,
and Penland Bridge.
6. In addition to sampling, I took the photos attached, showing conditions of the river.
7. On September 29,2015,was the first such trip where I obtained samples. The weather
conditions were a light rain. The river appeared cloudy and turbid and at times obscured
my own paddle in the water. Chalky discharge appeared to be entering the North Toe
River from multiple locations, including from what I believe to be are outfalls. This is
consistent with conditions I have observed on subsequent trips. Around the Altapass
facility,the river had an acidic chemical odor.
8. I obtained samples for turbidity at multiple locations along this stretch. I recall a sample
maxing out the turbidity meter, meaning the sample was too turbid to register on the
meter,which measures to a maximum of 999 ntu. This happened again in 2016, as
indicated on the attached sampling.
1

9. Many times that I have sampled the North Toe, I have documented turbidity in the river
far in excess of North Carolina's water quality standard of 10 ntu for trout waters.
10. The amount of mining waste escaping facilities and reaching the river visibly impacts the
condition of the river and detracts from its aesthetic character. I have observed these
conditions recurring on a repeated basis. But for the polluted discharge from mines and
their processing facilities degrading the North Toe River, I would be inclined to recreate
more on the North Toe River and believe others would as well.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and
correct.
This the 19th day of February,2019.
vU _
Hartwell Carson
2

Attachment C

French Broad Riverkeeper Sampling Data
North Toe River and Little Bear Creek
Sampling Date and Measurements in NTUs
Point Site GPS Coordinates 9/29/2015 12/22/2015 2/16/2016 12/21/2018
1st sample.
too high for
meter; 2nd
A Penland - downstream of mines and facilities 35.929360, -82.113155 955 5.57 sample 948 147
B Discharge from Unimen (Slbelco) processing 35.933084, -82.102340 605
too high for
instrument;
diluted 90%
and still too
high,
turbidimeter
Below Unimen (Sibelco) Discharge and Little Bear reads to 1000
C Cr. Confluence 35.932810, -82.102769 NTUs 28.4
D Little Bear creek-confluence w N. Toe 35.932619, -82.102662 721 755 282
E Upstream of Unimen 35.932060, -82.102925 9.55 15.6
F Little Bear Creek - upstream processing plant 35.93282, -82.102762 266 5.65 116
G Spruce Pine Riverside Park 35.914421, -82.067128 23.4 115 109
H Quartz Corps Discharge-Alta ass 35.904447, -82.063385 9.7 684
P 9 I
Altapass
Quartz Corps 35.904416, -82.063101 41.2 134 107

Attachment D

North Toe River - Representative Photos During Sampling
December 21, 2018
r
- - `.\
1V
h
Y 0, . �3
•.4 .- ._ate..* ':
?eE,- � .
Bridge at Penland Road .
•
1 ' .,..0. el!
. ,,,
til4art _.
1:::‘ i'.
.14.1‘
Little Bear Creek
1

North Toe River - Representative Photos During Sampling
, .
,' -.,
ftl °41
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i
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_...e.
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/ t. -•414 Atm /
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.- r'2'... '. ,. - ``'.0.4',.. '.,• ,,
Mouth of Little Bear Creek
2

North Toe River - Representative Photos During Sampling
September 29, 2015
{_J
>.f
North Toe River- Alta.ass Facili Dischar l e(odor)
. r.--„,....14
�r
\ _. .
" ,,'')i{ .ram :c .+r'',`vti;, - _ sj
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111
sty:: lilt `:. i. � �,�. z1\i i
K ID tii e
—141
North Toe- Altapass Stormwater Discharge Pipe
3

North Toe River - Representative Photos During Sampling
F ` 41� ,
•
Leg•
North Toe River-Just below mouth of Little Bear Creek
vi
ildre
.y.
'
w s
- =ate M
Measuring Sediment Deposition in the North Toe
4

North Toe River - Representative Photos During Sampling
414
Mhs_
A Ikb
Turbid Runoff into North Toe River
5

Attachment E

DECLARATION OF SAM EVANS
I, Sam Evans, being of legal age, declare as follows:
1. I am an attorney with the Southern Environmental Law Center. I lead our
National Forests and National Parks Program.
2. On September 29, 2015, I accompanied Hartwell Carson, French Broad
Riverkeeper, to obtain turbidity samples and observe conditions in the North
Toe River.
3. We floated the stretch of the North Toe River between the Altapass
Highway Bridge, upstream of Grassy Creek, and Penland Bridge.
4. The weather conditions were intermittent and light rain, following a heavy
rain, and the river's appearance was discolored and cloudy. At various
locations, I observed extremely chalky discharge entering the North Toe
River, from apparent NPDES outfall locations and possibly stormwater
outfalls, contributing to the opacity of the water. In some locations, I could
not see the end of my own paddle in the water,just below the surface.
5. I observed Carson taking samples for turbidity at multiple locations along
this stretch. The sampling results recorded by Carson are reflected in the
table being submitted with these comments. I recall a sample "maxing out"
the turbidity meter, or being too high for the device to measure.
6. As we passed by the Altapass facility, the river had a caustic, chemical odor,
and my eyes burned. The photo labeled "North Toe River - Altapass Facility
Discharge" captures this.
7. I was disappointed by the condition of the river and the amount of mining
waste escaping facilities and discharging into the river, which visibly and
aesthetically impacted the condition of the river. As a paddler, I would
recreate more in the North Toe River, especially in high water, but for the
polluted discharge from mines and their processing facilities degrading the
North Toe River.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing
is true and correct.

This the 18th day of January, 2019.
Sam Evans
2