NC0026441_Administrative Hearing Decision_20090928

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STATE OF NORTH CAROLINA IN THE OFFICE OF
? T Vp 90 ah3 �! I �I ADMINISTRATIVE HEARINGS
COUNTY OF CHATHAM 08 EHR 2474
Office of
FRIENDS OF THE ROCKY O,[-'*E.HP�qfirig'-; )
Petitioner, )
V. )
NORTH CAROLINA DEPARTMENT OF )
ENVIRONMENT )
AND NATURAL RESOURCES, DIVISION OF ) DECISION
WATER QUALITY, )
Respondent, )
and )
TOWN OF SILER CITY, )
Intervenor. )
This contested case was heard on June 3, 4, and 29, 2009 before Administrative Law Judge
Beecher R. Gray in Raleigh, North Carolina.
APPEARANCES
Petitioner was represented by John D. Runkle, Esq. Respondent was represented by Jane L.
Oliver, Assistant Attorney General, North Carolina Department of Justice, and Carolyn Goodridge,
legal intern with the Department of Justice, under the supervision of Jane L. Oliver. Intervenor was
represented by William C. Morgan, Jr., Esq., of the Brough Law Firm.
ISSUES
1. Whether Respondent exceeded its authority or jurisdiction, acted erroneously, failed to use
proper procedure, acted arbitrarily or capriciously, or failed to act as required by law or rule in
issuing NPDES Permit No. NCO026441 to Intervenor by:
(A) failing to issue an NPDES permit which meets water quality standards for "best uses' -in
Class C waters;
(B) failing to issue an NPDES permit which protects and preserves downstream "existing uses"
in the Rocky River;
(C) failing to address all cumulative and secondary impacts of all other pollution sources within
the Rocky River watershed before issuing the permit.

2. If so, whether any such error substantially prejudiced any rights of Petitioner.
BURDEN OF PROOF
Petitioner has the burden of proof on the issues.
WITNESSES
The following witnesses were called by Petitioner:
Sonny Keisler
John Fountain, Ph.D.
Susan Dayton
Elaine Chiosso
Kathleen Hundley
LeToya Fields
Brian Wrenn
Nora Deamer-Melia
Joel Brower
John Alderman
The following witnesses were called by Respondent:
LeToya Fields
Brian Wrenn
The following witness was called by hitervenor:
Joel Brower
Petitioner's Exhibits:
1 A — Petition for Contested case hearing
1 B — Petitioner's Preheating Statement
2 — NPDES Permit NC00026441, issued 8/29/08
3 - Amendment to memorandum of agreement between DWQ and UCFRBA
4 — Friends of Rocky River Comments and Attachments
5 - Comments Presented by Friends of Rocky River at Public Hearing
6 - Powerpoint Presentation made by Friends of Rocky River
7 - Revised Comments of Susan Dayton (without attachments)
8 - Vitae for John Fountain, Ph.D
9 — Proposed Plan for Monitoring Rocky River developed by Dr. Fountain

I OA — Comments Submitted by Chatham Environmental Review Board
1 OB — Comments submitted by Haw River Assembly'
1 OC — Revised Comments submitted Chatham Environmental Review Board
12 — Studies listed by Sonny Keisler
15 — Map of Rocky River watershed
16 — Comments presented by Consultant Alderman
17 — Resume of John Alderman
Respondent's Exhibits:
1 - Map of Rocky River (DWQ 2005 Basinwide Plan)
2— Application for Renewal of NPDES Permit with cover Letter dated 4/25/06
3— Draft Permits with Cover Letter, dated 9/12/07
4 — Letters Requesting Public Hearing
5 — Hearing Officers' Report with Attachments
6 — Email from Brian Wrenn to Coleen Sullins, dated 8/21/08
With response from Ms. Sullins on same date
7 — Final NPDES Permit NCO026441 with Cover letter dated 8/29/08
Intervenor's Exhibits:
1 — Amendment to Memorandum of Agreement between DWQ and UCFRBA
2 — Permit for Residuals Land Application, dated 4/8/08
3 — Annual land Application Certification Form
4 — Report on Proposed Reclassification of Two segments of Rocky River
5 — Siler City Ordinances and Regulations
6 — May 11, 2009 DWQ Inspection Report
7 — Comments Submitted at Public Hearing by Joel Brower
FINDINGS OF FACT
The parties received notice of hearing by certified mail more than 15 days prior to the
hearing and each party stipulated on the record that notice was proper.
2. Petitioner, Friends of the Rocky River, Inc., is a 501(c) organization located in Pittsboro,
North Carolina. It was founded to protect the natural resources of Chatham County,
including the Rocky River. Kathleen Hundley currently is president of the organization.
(T vol I pp 138-39, Pet Exh 1)
3. Section 402 of the Clean Water Act (CWA) establishes a program known as the National
Pollution Discharge Elimination System (NPDES) for issuing, modifying, denying,
monitoring, and enforcing permits for wastewater discharges. In order to discharge
wastewater through a point source into surface waters, a facility must obtain authorization

to do so in the form of an NPDES permit. The Environmental Protection Agency (EPA)
is authorized to administer and implement the NPDES Program. EPA has established
procedures and standards that must be used for the issuance of NPDES permits. Under
the CWA, a state may request authority to administer the NPDES Program for discharges
into surface waters within the jurisdiction of the state. EPA must approve a state's
program before delegating authority to the state to administer the NPDES program. EPA
has delegated the authority to issue NPDES permits to North Carolina under an approved
State program. (Fields, T vol 11 pp 306-07) See also: 33 U.S.0 § 1342(a)(1) and (5); 40
CFR Part 122, N.C. Gen. Stat. § 143-215.1, N.C. Gen. Stat. § 143-215.3(a)(14).
4. North Carolina has adopted the federal requirements for administering the NPDES Program
in its General Statutes and administrative rules. EPA retains oversight of the NPDES
Program and the State must provide notice to EPA of each permit it proposes to issue. EPA
and North Carolina have a Memorandum of Agreement under which EPA plays an active
role in North Carolina's NPDES permitting process and reviews all NPDES permit
applications, draft permits, and final permits for major facilities in the State. EPA has
promulgated regulations and also offers guidance on how to develop permit limits that are
protective of water quality. Each permit must include technology -based effluent limitations
and standards based on effluent limitations and standards established by the State in
accordance with Section 301 of the CWA. No permit may be issued if the conditions of the
permit do not provide for compliance with applicable requirements ofthe CWA, regulations
promulgated under the CWA, and State water quality standards. If EPA determines that the
State, in issuing a proposed permit, has not complied with federal regulations or EPA's
interpretation of such regulations, EPA may assert its authority to issue the permit or to take
over the State's NPDES compliance and enforcement programs. No permit may be issued if
EPA objects to the issuance of the permit. (Fields, T vol H pp 307-08, 311) See also 33
U.S.C. §§ 1342(d)(1), (2) and (4); 33 C.F.R.123.44(c) and 40 CFR 122.4; N.C. Gen. Stat. §
143-215.1; 15A NCAC 2H.0100 et seq.
5. Municipal wastewater treatment plants which treat municipal sewage and industrial
wastewater must obtain an NPDES permit in order to discharge treated wastewater into
streams or other surface waters. See also: 40 CFR 122.2.
6. The Environmental Management Commission (EMC) has been delegated authority by the
General Assembly to administer State programs and requirements under the CWA. The
EMC has sub -delegated the authority to issue NPDES permits to the director of the D W Q or
her designee. See N.C. Gen. Stat. § 143-214.3(a)(14); 15A NCAC 211.0107 and 211.0112.
Intervenor, the Town of Siler City (the Town or Siler City), operates a municipal wastewater
treatment plant (the plant) that receives domestic sewage from both residential and
commercial sources and wastewater from industrial sources. The Town has an NPDES
permit, identified as NPDES Permit NCO026441 (the Permit), which authorizes the Town to
discharge treated wastewater from the plant through a point source or outfall into Loves

Creek, a tributary of the Rocky River, in the Cape Fear River Basin. (Resp Exh 2)
8. Siler City has provided some level of wastewater treatment since the 1920's. The Town has
been operating its current wastewater treatment plant since it was built in 1994 to replace an
older facility that had been built in the mid- 1970's. The current plant has a design flow rate
of 4.0 million gallons per day and provides primary, secondary, and tertiary treatment. The
Town also uses technology for phosphorus removal. Siler City's Permit contains phosphorus
and ammonia limits that are more stringent that those of many similar facilities statewide. (T
vol 11 p 236; Resp Exh 2; Resp Exh 3, p 10)
9. Siler City also operates two reservoirs and a water treatment plant to provide drinking water
to the residents and businesses in Siler City. The two water supply reservoirs are located on
the Rocky River upstream from the confluence of Loves Creek and the Rocky River. The
lower reservoir was built in 1934 and the upper reservoir was built in 1965. Since 1994,
Siler City has been required to discharge a "minimum release" from its reservoir to help
protect flow levels in the Rocky River. (T vol I pp 20-21; T vol II pp 238-41)
10. Siler City currently is expanding its lower reservoir. During the process of reviewing the
proposed expansion, Siler City requested io have segments of the Rocky River above
Highway 64 reclassified as Class WS-III-CA waters. During the reclassification process,
DWQ staff worked with the N.C. Wildlife Resources Commission and the U.S. Fish and
Wildlife Service to develop operating procedures which will increase the minimum release
during normal and low flow conditions. The operating procedures also provide for pulse
releases which are intended to maintain flow conditions which would exist in the river if
there were no reservoir. In many cases, release flows will be higher than would occur
naturally to offset drought conditions and to ensure adequate water for fish reproduction.
The minimum release flows are based on a field study and modeling of downstream flow and
aquatic habitat and incorporate differences in flow needs. A Reservoir Management Team
was established as part of the expansion project. The Reservoir Management Team includes
various state agencies, the Friends of the Rocky River, and the Town of Siler City. The
Reservoir Management Team will evaluate the revised minimum release schedule. Siler City
also has installed a monitoring gauge near the Highway 64 crossing to monitor not only flow
but certain water quality parameters as well. (T vol II pp 242-43; Pet Exh 4, Att E)
11. The expanded reservoir is not expected to impact the Cape Fear shiner habitat on the Rocky
River because the closest critical habitat is located approximately fifteen miles downstream.
However, the revised minimum release schedule is expected to improve flow conditions such
that the new flow regime is expected to have a beneficial impact on freshwater mussels. (Pet
Exh 4, Att E)
12. The Rocky River is a flash river which is made up of a series of riffles and pools. After rain,
the water level rises quickly and then quickly falls back to low levels. Bear Creek is the
largest tributary to the Rocky River and Tick Creek is the second largest. Harland Creek

(west of Pittsboro), Loves Creek and Vamell Creek are smaller tributaries of the Rocky
River. Approximately 8 miles of Tick Creek and a 2.9 mile segment of Loves Creek are on
the State's impaired waters list. The Tick Cre&area has many animal operations. (T vol I
pp 56-62, 64-68; Pet Exh 6, p 7)
13. Within the Rocky River watershed, there are two minor NPDES wastewater dischargers.
These discharges are located on Bear Creek. One is a small domestic wastewater treatment
plant serving a rest home that has had problems with excessive ammonia, among other
things, in its discharge. The other also is a small wastewater plant at a school which releases
nutrients in its discharge. The confluence of Bear Creek and the Rocky River is
approximately twenty miles downstream from Loves Creek. (T vol I pp 60-62; Resp Exh 1)
14. Both Loves Creek and the Rocky River, below the water supply reservoirs, are classified as
Class C Waters. Best uses for Class C waters include aquatic life propagation and
maintenance of biological integrity (including fishing and fish), wildlife, secondary
recreation, and agriculture. The term "secondary recreation" is defined to include wading,
boating, and other activities for which contact between the human body and the water is
infrequent and incidental. [Swimming, diving, and skiing are designated as "primary
recreational use." Primary recreation use is not included as a "best use" of Class C waters.]
(T vol I pp 86,162) See also 15A NCAC 2B.0211(1) and 15A NCAC 2B.0202(52) and (57).
15. Based upon basin -wide reports and ambient water quality data, best uses of the Rocky River
as a Class C stream are being protected. The Rocky River currently is used by
recreationalists for fishing, canoeing, and kayaking. In addition, even though swimming is
not included in the definition of "secondary recreation," it is a popular place for swimming.
Nothing in the Cape Fear Basinwide Management reports or in ambient monitoring data for
the Rocky River presents a health concern which would prevent anyone from swimming in
the Rocky River. Ambient monitoring data indicates that there are no water quality standard
violations on the main stem of the Rocky River and that the Rocky River is not an impaired
water. (T vol I pp 150, 125-26, 199-200, 224)
16. The lower Rocky River, along with the lower Deep and Haw Rivers, provides critical habitat
for the federally endangered Cape Fear shiner. Two areas on the Rocky River have been
designated critical habitat of the Cape Fear shiner: (1) from the 902 bridge down to SR 1010
(above the Woody's dam area) and (2) below Woody's dam to the HW 15-501 bridge and up
into Bear Creek. The Cape Fear shiner has not been found in significant numbers above
Woody's dam since between the mid -seventies or mid -eighties, when there was an acute
event, most likely a major spill of a contaminant. There is a very small population of the
Cape Fear shiner in this location now and it is very vulnerable. The shiner population below
the dam, on the other hand, is quite healthy. The construction of dams and impoundments s
historically has been a major problem for survival of the Cape Fear shiner because
impoundments eliminate lotic habitat and dams separate populations making them more
vulnerable. (T vol III pp 374-76, 397-99; Pet Exh 15)

17. The Rocky River also is home to at least fourteen species of freshwater mussels. Most of the
populations are found below Woodys dam. None of the species that have been identified in
the Rocky River are on the federally endangered species list but three are listed as species of
special concern. Several have been identified by the State as endangered, threatened, or
species of special concern. None of the freshwater mussels in the Rocky River are endemic
to North Carolina and most have wide ranges of habitat beyond North Carolina from Georgia
and, for some, into Canada. Unlike the Carolina heelsplitter, which is a federally endangered
species of freshwater mussel, DWQ is not required to establish recovery or management
plans for any of the freshwater mussels found in the Rocky River. However, Consultant
Alderman recommends protecting 200-foot buffers on perennial streams and 100-foot buffers
on intermittent streams to help control microclimate and to help to prevent nutrients,
sediment, and other toxic substances from getting into streams where freshwater mussels
live. Siler City is the only local government within the Rocky River sub -basin that has
established 200-foot buffers on all perennial and intermittent streams within 2500 feet of the
Rock River. Stable stream channels and stable stream banks also are critically important for
recovery of freshwater mussels. (T vol III pp 377-80, 391-96, 401, 412; Pet Exh 16)
18. John Alderman has a B.A. degree in interdisciplinary studies with an emphasis in ecology,
other natural sciences, and taxonomy from UNC-CH. He worked for the N.C. Wildlife
Resources Commission for approximately eighteen years. He now owns a private consulting
firm which conducts biological surveys. Consultant Alderman does not study water quality
but does biological assessments by surveying aquatic populations and biodiversity within
waterbodies. (T vol III pp 366-67, 380; Pet Exh 17)
19. Consultant Alderman is concerned about the degradation of habitat for freshwater mussels
and other aquatic species in the Rocky River and elsewhere. He recently surveyed several
areas on the Rocky River and noticed a decrease in population and diversity of freshwater
mussels downstream from Siler City's wastewater treatment plant. Consultant Alderman
sees similar data almost everywhere that he works, which includes piedmont areas from
Georgia to Virginia. Consultant Alderman recommends that studies be conducted to identify
specific pollutants in point source effluent and to determine the impacts of those pollutants
on aquatic organisms, not only in the Rocky River but in general. There is "so very little
understood about [the impacts of] wastewater, and particularly, for a body of water such as
the Rocky River." Consultant Alderman also is concerned about nonpoint source pollution,
especially from agriculture and urban areas, and its impacts on aquatic organisms. (T vol III
pp 388-90, 403, 405)
20. Based upon ambient monitoring performed four miles downstream from Loves Creek, it
appears that Siler City's discharge has high nitrogen levels. However, since the testing site is
four miles downstream, it is unclear what impact the plant's discharge is having on the
Rocky River. Other potential sources of nitrogen include agricultural sources, through both
run-off and groundwater seepage. Any use of fertilizer is a potential source. There is a large

golf course in the area. There are many animal operations in this area, some of which use
land application as a method for managing waste. The North Carolina Ecosystem
Enhancement Program and DWQ's Raleigh Regional Office have reported that cows in the
creeks are a significant problem both as a direct source of nutrients and as a cause of habitat
degradation within the Rocky River watershed. Staff from the Raleigh Regional Office
previously located a hatchery that illegally was discharging animal waste through a floor
drain directly into a small creek that runs into Loves Creek. The creek was described as
looking as if it had black tar running through it. DWQ was able to stop the illegal discharge
and noted that conditions were improving. Septic and sewage disposal systems in the
watershed and sludge disposal fields also may be potential sources of nutrients. (T vol I pp
65-67, 99-100; Pet Exh 4, Att C; Resp Exh 3 p 11)
21. There are no State or federal water quality standards or limits for nitrogen in Class C waters.
Nitrogen limits may be imposed on point source discharges where the downstream waters
have been supplementally classified to be nutrient sensitive. (T vol I pp 178-79; Resp Exh 3)
22. Susan Dayton from the Blue Ridge Environmental Defense League is concerned about
potential impacts of sewage sludge on the Rocky River. Susan Dayton does not know how
many permitted sludge fields within the Rocky River Basin, including those permitted for
Siler City, are being used. She is not aware of any actual harm to Rocky River caused by
sludge fields but she is concerned about potential harm. (T vol I pp 109, 114-15, 118)
23. John Fountain, Ph.D, is a geochemist whose studies primarily have focused on contaminants
in groundwater and the movement of contaminants from groundwater to surface water. Dr.
Fountain has conducted extensive studies related to nutrient contamination in the Neuse
River Basin. (T vol I pp 89-91)
24. Dr. Fountain recently was hired as a co -principal investigator in a study of the geochemistry
of Tick Creek and its drainage basin. The purpose of the study is to assess nutrient pollution
in Tick Creek. The study is being funded through a 319 grant obtained through DWQ.
Excess nutrients contribute to the growth of algae and other microorganisms in streams.
Excessive algae growth sometimes can cause ecological damage in that when the algae die
microorganisms that feed on the dead algae can deplete oxygen in streams, which can kill all
animal life in the streams. The Tick Creek study just is getting started with sampling for the
study set to begin in the summer of 2009. (T vol I pp 91-92, 98-99)
25. Dr. Fountain also has been asked by the Friends of the Rocky River to help with perceived
degradation of water quality in the Rocky River. Dr. Fountain noted that DWQ, through its
ongoing monitoring program, looks at the entire range of pollutants that might be present in a
water body and that DWQ has a substantial amount of data for the Rocky River. Dr. Fountain
has reviewed data from monitoring by DWQ and other groups and believes that the data is
not sufficient to determine exactly how much pollution is in the Rocky River and exactly

where it comes from. Dr. Fountain has developed a proposed plan to monitor and analyze
pollutants in the Rocky River, identify pollution sources, and quantitatively measure the
contribution of each source for the entire Rocky River. This type of basin -wide study would
assess the quantitative impacts of all potential pollutions sources, including the Siler City
wastewater treatment plant, on the river. The information derived from a scientific study
could be used as one factor, among many other appropriate factors, in determining whether a
particular point source should be permitted. Dr. Fountain currently is working to get a basin -
wide study started. (T vol I pp 93, 95-98; Pet Exh 9)
26. Dr. Fountain is not familiar with procedures for the issuance ofNPDES permits and does not
know how D WQ looks at cumulative impacts when issuing an NPDES permit. Dr. Fountain
is somewhat familiar with the system for the classification of surface waters in North
Carolina but he does not know the classification for the Rocky River or what water quality
standards are applicable to the Rocky River. (T vol I pp 103-04)
27. Sonny Keisler currently serves as a board member and secretary of the Friends of the Rocky
River. He has a Ph.D. in public administration with a focus in environmental policy. Sonny
Keisler has lived on the Rocky River for six and one-half years. His property is located
approximately twenty-two miles downstream from the discharge point of Siler City's
wastewater treatment plant. Sonny Keisler worked in the planning department during Gov.
Bob Scott's administration and has done some teaching in planning, but has received the
majority of his compensation as areal estate developer. He has developed numerous large -
lot upscale residential subdivisions in Chatham County. (T vol I pp 17, 46-59)
28. Sonny Keisler has observed that, during periods of extreme drought, there is an increase in
filamentous algae growth on the Rocky River downstream from the 15-501 bridge. In
October 2006, an algae survey was conducted by DWQ and filamentous algae was found at
SR1010, east of Highway 902, and at Kathleen Hundley's property approximately two miles
from the confluence of the Rocky River and the Deep River. The filamentous algae at
SRI010 covered approximately 20 to 30 feet of the area along the bank and could not be
classified as a noxious bloom. The algal growth is likely the result of low flow during dry
summer months or drought conditions and elevated nutrient levels in the river. (T vol I pp
22-23, 49-50; 53-54; 138; Pet Exh 4, Att C)
29. Sonny Keisler does not know whether most streams in North Carolina have problems with
algae growth in the summer or dry months. He has had no training in either wastewater
disposal systems or in the removal of nutrients from wastewater. He has heard that someone
is working on a proposal for removal of nutrients for the Siler City wastewater treatment
plant but he does not know whether the proposal would be financially feasible for Sher City,
which currently is suffering economically. (T vol I pp 76-79)
30. During dry months, there is increased algae growth on the Rocky River both upstream and
downstream from Siler City's plant, including near Liberty, a community north of the
0

reservoirs. (T vol II p 347-48)
31. Siler City has taken significant steps through its Unified Development Ordinance and its
Watershed Protection Ordinance to address stormwater as a potential source of nutrients in
the Rocky River watershed. Siler City expanded its extra -territorial jurisdiction (ETJ) so
that its ETJ along the river has increased from six miles to eighteen miles. Siler City
established a River Protection Corridor by requiring that 200-foot vegetated riparian buffers
be maintained not only along the Rocky River and but also along perennial streams and
intermittent streams which are located within 2500 feet of the Rocky River. These riparian
buffer protections are more stringent than any others within the watershed. In areas outside
of the 2500-foot corridor, Siler City requires protection of 100-foot riparian buffers along
perennial streams and 50-foot buffers along intermittent streams. Siler City does not allow
new construction in the flood zone and encourages the use of grass swales instead of curb
and gutter where possible. Siler City also prohibits the direct discharge ofstormwater into
surface waters. (T vol I pp 54-55; T vol 11 pp 340-44, Int Exh 4 and 5)
32. Chatham County protects 100-foot riparian buffers along the river. Sonny Keisler has
covenants on his property to protect 100-foot buffers along the river. (T vol I pp 99-100)
33. On April 25, 2006, the Town of Siler City submitted an application to Respondent to renew
its existing permit. In its application for a permit renewal, the Town did not seek to expand
capacity for the plant or to make any changes from its existing permit. (T vol a pp 258, 309-
10; Resp Exh 2) See also: 40 CR 122.21(d).
34. At the time the application was submitted, the plant was processing wastewater from
approximately 7,000 residents of Siler City and from four industrial users. The industrial
users were Townsends, Inc., Mastercraft Fabrics, LLC, Gold Kist, Inc., and Brookwood
Farms, Inc. Each industrial user is required to comply with pretreatment limits. Each
industrial user must provide some level of treatment to its process water, thereby limiting the
strength of wastewater that each user sends to the plant. In May 2008, one of the industrial
users, a chicken processing plant, shut down. This business closure, one of the plant's largest
customers, has reduced the amount of wastewater being received at the Siler City plant by
approximately 650,000 gallons per day and significantly has reduced the nutrient load going
into the Town's wastewater treatment plant. (T vol I pp 82-83; T vol 11 pp 256-57; Resp
Exh 2)
35.In its application, the Town included, among other things, effluent monitoring data,
expanded effluent testing data, and whole toxicity test results that had been collected during
the four and one-half year period prior to the date of the application and all required
information relating to its industrial users. (Resp Exh 2) See also 40 CFR 122.210).
36. A copy of the permit renewal application was reviewed by EPA. LeToya Fields was the
person in DWQ who was primarily responsible for reviewing Siler City's permit renewal
10

application. Engineer Fields has a B.S. degree from Columbia University in chemical
engineering with a minor in mechanical engineering. After graduating from Columbia in
1999, Engineer Fields worked for three and one-half years in Washington, D.C., for an
environmental engineering consulting firm on a project that provided support for EPA's
National NPDES Program. At the time she reviewed Siler City's application for a permit
renewal, Engineer Fields had been working as an Environmental Engineer I in DWQ's
NPDES program for approximately three and one-halfyears. As an Environmental Engineer
I, Engineer Fields reviewed NPDES permit applications, performed water quality models,
reviewed engineering alternative analyses, and issued permits. Engineer Fields was
promoted to the position of Environmental Engineer II in the NPDES Program before DWQ
issued the final permit to Siler City. In that position, she reviewed permits developed by
other DWQ staff, developed permit renewals for major municipal and industrial facilities,
and assisted in developing policy. (T vol I pp 159-60; T vol II pp 305-06)
37. Engineer Fields reviewed Siler City's permit application to make sure that all the information
required by the EPA was included. The EPA also reviewed the application and found it to be
complete. Engineer Fields then proceeded to develop a draft permit in accordance with EPA
regulations and guidance and State procedures and regulations. Every NPDES permit must
include conditions and limits to meet applicable federal and State water quality standards. (T
vol I p 161; T vol H pp 311, 321) See also: 40 CFR 122.21(e) and 0); 40 CFR 122.44.
38. Because Loves Creek, the receiving waters, is a Class C stream, Engineer Fields evaluated
the limits in Siler City's existing permit to determine whether the permit limits would meet
water quality standards that have been established to protect best uses for Class C waters.
Engineer Fields conducted a reasonable potential analysis for the plant's effluents using
7Q 10 conditions. EPA requires that 7Q 10 conditions be used to determine impacts for Class
C waters. This analysis is used to assess the potential impact of discharge on the receiving
waters. The 7Q 10 flow is a statistical estimation of the lowest seven-day average flow that
would occur within a ten-year period. The summer 7Q 10 flow represents drought flow or
critical flow conditions and the analysis assumes maximum discharge from the wastewater
treatment plant. EPA recommends that this analysis be used to determine what effluent
limits are needed to protect water quality. Although there are no other permitted point
sources on Loves Creek, by incorporating this conservative low flow analysis, the evaluation
considers point source discharges during extreme low streamflow conditions when impacts
from nonpoint source inputs likely would be less. (T vol I pp 162, 164,166-67,176-77, T
vol II p 329)
39. The 7Q10 flow for Loves Creek is 0.25 cubic feet per second, according to US Geologic
Survey data. Because the application was for reissuance of a permit, Engineer Fields was
able to examine several years of monitoring data for effluent from the Siler City plant. Siler
City had submitted standard effluent testing data required for all NPDES permits and
expanded effluent testing data that is required for larger facilities and facilities with
pretreatment programs. Siler City also included in its application screening analyses for a
11

wide range ofpollutants as well as whole toxicity test data and monitoring and flow data for
the pretreatment program. Engineer Fields performed a statistical analysis based upon
several years of data from testing and analysis of effluent as well as pretreatment data to
determine the highest level of pollutants likely to be discharged. (T vol I pp 164-65,170-72,
T vol II pp 312-14, 327; Resp Exh 2)
40. Engineer Fields evaluated data from effluent monitoring and analysis to make sure that the
discharge would not violate water quality standards established for the protection of best uses
of Class C waters. These water quality standards are designed to protect best uses identified
in State regulations. Engineer Fields performed statistical modeling recommended by EPA,
comparing data from several years of monitoring and testing of pollutants in the plant's
effluent to the amount of dilution in the receiving waters to determine whether the
wastewater discharge would have an adverse impact on aquatic life, biological integrity, and
secondary recreation in the receiving stream. (T vol I pp 170-73, 176-79, 198-99) See 15A
NCAC 213.0211.
41. The NPDES permitting process does not require that the permitting agency consider
cumulative impacts of all possible pollution sources within the watershed in which the
receiving waters are located when reviewing an application for a NPDES permit. [North
Carolina only requires a full evaluation of cumulative and secondary impacts when a project
is subject to the North Carolina Environmental Policy Act (SEPA). Since this permit was a
simple renewal with no request for flow expansion, it was not subject to SEPA requirements
for cumulative/secondary impact evaluation. N.C. Gen. Stat. §§ 113A-1 et sec ] There are
no other permitted point source dischargers in the upper Rocky River or on Loves Creek. (T
vol I p 169; Resp Exh 1)
42. In January 2007, Petitioner submitted a letter to DWQ expressing concerns about potential
impacts of the Siler City wastewater treatment plant on the Rocky River. In the letter,
Petitioner noted that the Rocky River is home to the federally endangered Cape Fear Shiner.
However, there was no scientific data presented to show that effluent from the Siler City
plant is having any impact on the Rocky River's Cape Fear Shiner population. (T vol I pp
180, 190; Resp Exh 3 pp 2-3)
43. Engineer Fields reviewed extensive data from whole effluent toxicity (WET) testing which
had been conducted by Siler City during the four and one-half year period preceding the
application date. Wastewater treatment plants are required under the NPDES program to take
a sample of treated effluent at the final effluent discharge point below all treatment processes
and subj ect indicator species, such as Ceriodaphnia or the flathead minnow, to the effluent at
the percentage that the effluent makes up of the receiving waters. Whole effluent toxicity
testing measures the aggregate toxic effect of the combination of pollutants in a facility's
effluent on aquatic species. The purpose of the test is to determine whether the effluent has a
toxic effect on aquatic life. The tests measure for growth, mortality, and reproduction. Siler
t'iiy conducted twenty whole effluent toxicity tests in the preceding four and one-half years.
12

These tests were conducted to observe whether the effluent from Siler City's plant, at an
effluent concentration of 90%, caused growth inhibition or significant mortality to
Ceriodaphnia dubia. Use of Ceriodaphnia has been shown to be protective of the Cape Fear
shiner because of its greater sensitivity to pollutants. Siler City had one WET test failure in
March 2004 and was required to test for the following two consecutive months. The plant
failed one of the subsequent tests and passed the other. Before and after that time, the Siler
City plant had not had any whole effluent toxicity test failures. The permits limits are
protective of aquatic life. (T vol I pp 178-79, 203-04; T vol II pp 314-16; Resp Exh 2 and 3)
See also: 40 CFR 122.1.
44. Engineer Fields reviewed the 2005 Cape Fear River Basin Plan (Basin Plan) as well as
instream monitoring data for the Rocky River provided by the Upper Cape Fear River Basin
Association (UCFRBA). The Basin Plan is based upon ambient monitoring by DWQ and by
various coalitions within the Basin as well as benthic macroinvertebrate and fish data
collected by DWQ. The data is assessed and evaluated within the context of State water
quality standards. DWQ then compares the data with water quality standards applicable to a
particular stream or surface water. If one of the water quality standards is violated, the
stream or surface water is an "impaired water." (T vol I pp 218-19, 222; T vol II pp ; Rep
Exh 3)
45. The 2005 Basin Plan for the Cape Fear watershed identified 2.9 miles of Loves Creek as
being impaired for aquatic life because of "fair" benthic community ratings at three sites.
The impaired segment is both upstream and downstream of the plant's discharge point. A
stressor study showed that the main stressor to the bentbic community was toxic substances
in run-off as well as streambank erosion, sedimentation, and excessive algae growth. Siler
City's plant and agricultural sources were listed as pollution sources but they were not
identified as the main stressors. Based on ambient monitoring data, the impairment on Loves
Creek is not causing similar impairment on the Rocky River. There are no water quality
standards being violated on the main stem of the Rocky River and it is not listed as an
impaired water. (T vol I pp 218-19; T vol H pp 325-26; Resp Exh 3)
46. Engineer Fields also looked at the Town's compliance history and found the plant had met all
permit limits except for one violation for pH. All inspection reports indicated that the facility
was well -operated and maintained. Engineer Fields also consulted with D WQ's Pretreatment
program about the contribution from industrial users. (T vol II p 309-10, 318)
47. After her review, Engineer Fields issued a draft permit that included several significant
changes from Siler City's existing permit. Engineer Fields added a requirement for an
annual pollutant scan. She revised the frequency of monitoring requirements for copper,
zinc, and chlorides so that the permit requirements would be consistent with frequency
requirements in surface water monitoring rules. (T vol II pp 322-23; Resp Exh 3) See 15A
NCAC 2B.0500.
13

49. Although there are no water quality standards or limits for phosphorus and nitrogen in Class
C waters and neither Loves Creek nor Rocky River have been classified as nutrient sensitive
waters, Engineer Fields included a new requirement in the draft permit that would require
Siler City to develop a Nutrient Removal Optimization Plan based on concerns about nutrient
levels in Loves Creek and in Rocky River. This condition, while not mandated by NPDES
statutes or rules, would require Siler City to evaluate sources of nutrients (particularly
nitrates) to the plant, provide current removal rates, and discuss how their current technology
and treatment process might be used to optimize nutrient removal. (f vol I pp 178-79, T vol
II p 319; Pet Exh 4, Att C; Resp Exh 2)
49. EPA reviewed the draft permit and fact sheet which provides a basis for the decisions made
about the permit. EPA made a few comments which were incorporated into the draft permit.
(T vol II pp 308, 323-24)
50. On September 12, 2007, Engineer Fields sent a copy of the draft permit with a cover letter
and fact sheet to Siler City for review. Public notice of the draft permit was issued so that
the public and interested parties could review the draft permit and submit public comments.
Copies of Siler City's permit renewal application, the draft permit, and a fact sheet
explaining the basis for permit limits in the draft permit were sent for review and comments
to EPA, the NC Wildlife Resources Commission, and to DWQ's Raleigh Regional Office,
which is responsible for conducting compliance inspections of the facility. (T vol I p 161; T
vol II pp 307-08; Resp Exh 2)
51. Based on the level of public interest expressed, the Director of DWQ determined that it
would be in the public interest to have a public hearing on the draft permit. The notice of
public hearing was printed in the local newspaper and copies of the draft permit were made
available. (Resp Exh 5 pp 4345)
52. On 17 April 2008, DWQ held apublic hearing in Siler City on the draft permit DWQ gave a
presentation about the procedure for issuing an NPDES permit. Interested parties were
allowed to speak, make presentations, and submit comments at the hearing. Brian Wrenn
and Ed Beek were assigned as hearing officers in the permitting process. Brian Wrenn and
Ed Beck presided over the public hearing. Engineer Fields also was present. Joel Brower,
Town Manager for Siler City, and several members of Friends of the Rocky River spoke or
made presentations. (T vol I pp 161, I87)
53. Elaine Chiosso, executive director of the Haw River Assembly and chair of the Chatham
County Environmental Review Board (CCERB), presented recommendations at the public
hearing on behalf of both entities. CCERB recommended that the following conditions,
among others, be added to the permit: (1) Siler City be required to conduct a watershed study
of the Rocky River that considers direct, secondary, and cumulative impacts from all sources
of pollution, including nutrients and pharmaceuticals; (2) Siler City be required to upgrade its
plant to remove more nutrients and heavy metals; (3) Siler City require all industrial users to
14

install and use state of the art water recycling technology; (4) Siler City be required to
develop a conservation plan for federal and state listed threatened and endangered species
that considers direct, indirect, and cumulative `impacts of the plant's discharge on these
species; and (5) monitoring requirements be increased, not lessened. The Haw River
Assembly presented similar but less extensive recommendations. (T vol I pp 123-27; Pet
Exh I OA and 1 OB)
54. Elaine Chiosso is not aware of any regulatory basis for restricting the discharge of nitrogen or
phosphorus into surface waters except where a particular waterbody has been classified as
either nutrient sensitive or impaired. Ms. Chiosso did not know whether the Rocky River is
listed as an impaired water or supplementally has been classified as nutrient sensitive. (T
vol I pp 132-36)
55. According to Elaine Chiosso, the Rocky River still is a popular stream for wading,
swimming, and paddling. (T vol I p 126)
56. In the presentation made in cooperation with the Rocky River Heritage Foundation at the
public hearing (and in a similar presentation presented as evidence in this contested case
hearing), the Friends of the Rocky River identified Loves Creek as being on North Carolina's
list of"severely impaired" streams. A 2.9 mile segment of Loves Creek is listed as impaired,
but not severely impaired, for aquatic life because of "fair" benthic community ratings at
three sites. In their presentation, the Friends of the Rocky River and the Rocky River
Heritage Foundation neglected to identify an approximately eight -mile segment in Tick
Creek, which is the Rocky River's second largest tributary, as being impaired. Tick Creek
joins the Rocky River several miles downstream of Loves Creek and upstream from Highway
902. The presentation presented by Petitioner at the contested case hearing also failed to
reflect the closure in May 2008 of one of the chicken processing plants in Siler City. (T vol I
pp 57-58, 82-83; Pet Exh 6 pp 23, 30; Pet Exh Resp Exh 3 p 9)
57. Consultant John Alderman also made a presentation at the public hearing about biodiversity
in the Rocky River. Consultant Alderman has not read Siler City's NPDES permit and he
does not know what parameters are being tested. (T vol III pp 421, 435)
58. Hearing Officer Wrenn has a B.S. degree in biology from UNC-Chapel Hill and two years of
graduate study in marine science at UNC-Wilmington. He has had training in the inspection
of wastewater treatment plants. He has attended wastewater treatment plant operating
schools, EPA's Water Quality Standards Academy, and the U.S. Army Corps of Engineers',
training in wetland delineation. Hearing Officer Wrenn has worked for DWQ for eleven
years. He has worked as an inspector and compliance coordinator for wastewater treatment
plant land application and spray irrigation programs. A lot of facilities using non -discharge
disposal systems have similar wastewater treatment processes as the NPDES Program does.
Hearing Officer Wrenn currently is the supervisor with DWQ's Transportation Permitting
Program that reviews the Department of Transportation's projects under Section 401 of the
15

C WA. (T vol I pp 186-87, 199-200)
59. Hearing Officer Wrenn and Hearing Officer Beek were responsible for submitting a report
and recommendations on the Siler City NPDES permit to the Director of DWQ based upon
information gathered during the application process and the public notice and comment
period. After the public hearing, Hearing Officer Wrenn reviewed the application, the draft
permit, comments made in the requests for a public hearing, the comments presented at the
public hearing, comments submitted after the public hearing, the Upper Rocky River Local
Watershed Plan, which includes information about nonpoint sources such as agriculture and
urban run-off, DWQ's 303(d) studies, articles which had been provided by representatives of
the Friends of the Rocky River, such as "the Influence of Water Quality and Associated
Contaminants on Survival and Growth of the Endangered Cape Fear Shiner," and other data
that he collected. He also discussed the permit with Engineer Fields; Matt Matthews,
DWQ's point source supervisor; Susan Wilson, DWQ's coordinator for the western NPDES
unit; and Dana Foley in DWQ's pretreatment program. (T vol I pp 187-90)
59 The hearing officers Wrenn and Beck took an extensive tour of the plant and found it to be
"well -maintained and competently operated." The Town's employees who were responsible
for operating the plant were "knowledgeable and informative." (Resp Exh 5 p 2)
60. The hearing officers talked with the Upper Cape Fear River Basin Association staff about
accessibility to the Rocky River for sampling. They also asked about monitoring of
wastewater treatment plants in other waterbodies which have been designated "nutrient -
sensitive waters." As a result, the hearings officers recommended putting a year-round total
phosphorus limit in Siler City's permit instead ofjust having a phosphorus limit during the
months of April through September. (T vol I pp 212-13)
61.One of the articles which had been provided by the Friends of the Rocky River was
"Assessing Contaminant Sensitivity ofEndangered and Threatened Aquatic Species, Effluent
Toxicity Tests," which was published in a 2005 Environmental Contamination and
Toxicology journal. The article reported a study in which Ceriodaphnia dubia, the flathead
minnow, and several threatened and endangered species, including the Cape Fear Shiner,
were subjected through standard effluent test procedures described by EPA to a 7-day
exposure to individual chemicals, simulated complex effluent mixtures, and field -collected
effluents from domestic and industrial wastewater treatment facilities. Several of the field
collected effluents were from North Carolina wastewater treatment plants and one of these
samples was from the Siler City wastewater treatment plant. The purpose of the study was to
determine whether whole toxicity effluent testing used by EPA's NPDES program
adequately protected aquatic ecosystems, specifically, listed species and their habitats. (T vol
I pp ; T vol III pp ; Resp Exh 4 pp 114-23)
62. The article concluded that Ceriodaphnia dubia had the greatest sensitivity to toxicity overall
when compared with sensitivity of the threatened and endangered species, including the Cape
16

Fear Shiner. The flathead minnow sensitivity was generally comparable to listed fish
including the Cape Fear Shiner. All three species were tested using three North Carolina
effluent samples. In two tests, all three showed 100% survivability. In one of the tests,
Ceriodaphnia dubia showed the greatest sensitivity, followed by the shiner and then the
flathead minnow. The study tended to show that the flathead minnow is a good indicator
species when testing for toxicity for listed species but that use of Ceriodaphnia dubia is
more protective due to its greater sensitivity. Siler City uses Ceriodaphnia in its whole
effluent toxicity testing. (T vol I pp 204, 206-08; T vol III pp 419-2; Resp Exh 4 pp I I4-23)
63. The article does not support Petitioner's public comment assertion that discharge into Loves
Creek from the Siler City wastewater treatment plant was a leading cause of extirpation of
the Cape Fear Shiner population in the Rocky River. Petitioner's witness, Consultant
Alderman, a biologist with an emphasis in wetland ecology and taxonomy who conducts
biological assessments, believes that the extirpation of the Shiner population in the Rocky
River occurred as the result of a catastrophic spill of some kind in the late 1970's to mid-
1980's. Consultant. Alderman has recommended that the Cape Fear Shiner be re -introduced
in the upper stretch of the Rocky River because it might have a good chance of surviving
there based upon physical habitat characteristics. Impoundments that destroy riffles and
create deeper pools are a known cause of the decline of the Cape Fear Shiner and restoration
efforts have focused primarily on restoring physical habitats, such as removing dams and
impoundments. (T Vol I pp 71-72; 203-08; T vol III pp 419-20; Pet Exh 4, AttH)
64. Another scientific article submitted by the Friends of the Rocky River published the results
of a study of various sites on the Haw, Deep, and Rocky Rivers to evaluate potential
reintroduction sites. The study looked at different water quality factors that might be
affecting growth, survivability, and lipid storage of the Cape Fear shiner. The fish were put
in cages at various sites for 28 days with water samples taken and analyzed for these sites.
The study identified some pollutants in the water, including chlordane, which has been
banned since the 1980's, but was not conclusive as to the sources of the various pollutants
identified. The study indicated that survivability of the Cape Fear shiner at two Rocky River
sites, including the one closest to the Siler City plant, was as high or higher than some sites
on the Deep River. One of the sites on the Rocky River was used as the reference site
because it presents the most favorable conditions for habitat for the Cape Fear shiner. In
contrast, according to the study, the Haw River sites presented serious water quality concerns
for survivability of the shiner. (T vol I pp 190, 202, 208-11; Resp Exh 5 pp 25-35)
65. On July 14, 2008, Hearing Officer Wrenn and Hearing Officer Beck issued a report with
recommendations to Coleen Sullins, Director of DWQ. The hearing officers addressed many
public comments in their report. Based on concerns expressed at the public hearing and in
the comments, the hearing officers recommended that several changes be made to the draft
permit. The hearing officers added tighter restrictions on nutrient inputs into Loves Creek
and ultimately the Rocky River and enhanced downstream monitoring. Specifically, the
hearing officers recommended: (1) increasing the frequency of monitoring requirements for
17

total nitrogen from monthly (added to the draft permit) to weekly and adding additional
testing parameters; (2) changing the monitoring requirement for total phosphorus so that
compliance with phosphorus limits would be based on a monthly average of weekly
monitoring; (3) adding a monitoring location on the Rocky River closer to the confluence
with Loves Creek than the existing downstream monitoring location, which is approximately
four miles downstream from the plant. Hearing Officer Wrenn thought the four mile distance
provided a significant drainage area which could be impacting the results at this monitoring
site and thought it would be prudent to conduct monitoring closer to the wastewater
treatment plant to get a better understanding of impacts from the plant's discharge on the
river. (T vol I pp 193-96, 211, 213; T vol II pp 333-35; Resp Exh 5, p 6)
66. EPA reviewed and approved the final permit. (T vol H p 308)
67. After the report was issued, Hearing Officer Wrenn met with Ms. Sullins, Paul Rawls,
Surface Water Protection Section Chief, and Matt Matthews, Point Source Branch Chief, to
discuss his recommendations and the permit requirements. As a result of that discussion, on
August 21, 2008, Hearing Officer Wrenn recommended a year-round total phosphorus limit
(0.5 mg/L in summer and 2.0 mg/L in winter). The current permit has a seasonal phosphorus
limit of 0.5 mg/L from April I through September 30 with year-round monitoring. (Resp
Exh 6)
68. The hearing officers also made recommendations which were not directly related to the
NPDES permit requirements. They recommended that a watershed analysis of the Rocky
River be conducted "to determine the significant threats to water quality, major contributors
of pollutants, and potential solutions to water quality threats." In the public comments, a lot
of general concerns were raised about various pollutant sources and potential problems but
no one identified specific sources, other than the Siler City plant, or quantified impacts from
other sources. (T vol I p 936; Resp Exh 5, p 6; Resp Exh 6)
69. On August 28, 2008, the Director of DWQ issued NPDES Permit NCO026441 which
included significant changes from the preceding permit. DWQ added a winter phosphorus
limit and increased the frequency of total nitrogen monitoring and expanded the reporting
requirements to include total nitrogen, nitrates, nitrites, and total kjeldahl nitrogen. DWQ
also added monitoring locations and included the requirement for a Nutrient Removal
Optimization Plan. The frequency ofmonitoring at some locations later was amended by an
agreement between DWQ and the UCFRBA. The expiration date for this permit is October
31, 2011. (T vol I p 174, 196-97, 211; T vol II pp 244-45, 255-56, 260-62; Resp Exh 6 and
7; Int Exh 1) See also: 15A NCAC 2H.0114.
70. Siler City is complying with all the requirements in the NPDES Permit issued on August 28,
2008 even though a final decision on the permit has not been issued. On May 19, 2009,
DWQ conducted a surprise inspection and found no effluent violations and only a few minor
problems at the facility. (T vol II pp 344-45; Int Exh 6)
18

71. Petitioners offered no evidence to show that the analysis conducted by DWQ was inadequate
or that any other appropriate modeling would have resulted in different permit limits or
restrictions or precluded issuance of the permit. Section 303 of the CWA requires states to
establish water quality standards in accordance with EPA guidance and subject to EPA
approval. 33 U.S.C. § 1312. State water quality standards define the goals of a water body
"by designating the use or uses to be made of the water and by setting criteria necessary to
protect such uses." 40 CFR § 131.2.
72. Water quality standards "serve the dual purpose of establishing the water quality goals for a
specific water body and serve as the regulatory basis for the establishment of water -quality -
based treatment controls ..." 40 CFR § 131.2
73. States must specify and designate the "uses" for all water bodies within the state. Typically,
each water body will have several uses, such as public water supply, propagation offish and
shellfish, primary or secondary recreational uses, agricultural uses, and other uses. 40 CFR §
131.10.
74. Water quality criteria are elements contained in water quality standards which, "when met,
will generally protect the designated use." 40 CFR § 131.1(b). Water quality criteria "must
be based on sound scientific rationale and must contain sufficient parameters or constituents
to protect" designated uses, including the most sensitive use. 40 CFR § 131.11(a). Criteria
may be "expressed as constituent concentrations, levels, or narrative statements" which
represent a quality of water that supports a particular use. 40 CFR § 131.3(b).
75. The North Carolina General Assembly has delegated the State's authority to administer the
federal CWA to the Environmental Management Commission (EMC). N.C. Gen. Star. §
143B-282(u). Under this authority, the EMC has adopted State water quality standards and
classifications for the purpose of classifying each water body in the State. The water quality
classifications and standards were adopted by the EMC "to promote the policy and purposes
of the [State's Air and Water Resources Act] most effectively." N.C. Gen. Star. § 143-
214.1(a)(1).
76. The EMC also has given each water body in the State a designated classification underN.C.
Gen. Star. § 143-214.1(a)(3). See 15A NCAC 2B.0100-.0301.
77. Loves Creek and the Rocky River have been classified as Class C waters and are, therefore,
subject to the water quality standards set forth in 15A NCAC 2B.0211.
78. The best uses on Class C waters are: aquatic Iife propagation and maintenance of biological
integrity (including fishing and fish), wildlife, secondary recreation, agriculture, and any
other usage except for primary recreation or as a source of water supply for drinking,
culinary, or food processing purposes. 15A NCAC 2B.0211(1).
19

79. The water quality standards set forth in 15A NCAC 2B.0211 do not include limits for
nutrients, such as phosphorus and nitrogen.
80. The EMC "may classify any surface waters of the state as nutrient sensitive waters (NSW)
upon a finding that such waters are experiencing or are subject to excessive growths of
microscopic or macroscopic vegetation." Excessive growths of vegetation are "growths
which the Commission determines impair the use of the water for its best usage as
determined by the classification applied to such waters." 15A NCAC 213.0223.
81. Where the EMC has classified a water body as "nutrient -sensitive," the EMC may require
individually permitted wastewater treatment facilities which discharge into such waters to
limit the concentration of nitrogen in the discharge to a total nitrogen concentration of 5.5
mg/l. For such facilities, the EMC must establish a compliance date which no more than five
years from the date of the classification of "nutrient sensitive." N.C. Gen. Stat. §§ 143-
215.1(cl) and (c6).
82. Neither Loves Creek nor the Rocky River has been classified as nutrient -sensitive by the
EMC.
CONCLUSIONS OF LAW
1. The parties properly are before the Office of Administrative Hearings and the Office of
Administrative Hearings has jurisdiction over this contested case.
2. N.C. Gen. Stat. § 143-215. 1 (b)(2) requires Respondent to act on all permits so as to prevent
violation of water quality standards because of the cumulative effects of permit decisions.
There are no other discharges on Loves Creek or in the upper Rocky River. Respondent
conducted water quality modeling which indirectly accounted for other potential discharges
into the receiving waters before re -issuing NCO026441 to the Town of Siler City.
3. N.C. Gen. Stat. § I43-215.1(b)(2) does not require or authorize Respondent, when
considering an application for the subject facility, to consider or act to prevent secondary
impacts which might occur upon issuance of the Permit.
4. Petitioner has failed to meet its burden of proof in this matter. Petitioner has failed to
show that NPDES Permit No. NCO026441, issued by Respondent on August 28, 2008,
fails to meet or to protect any applicable State and federal standards and limitations.
More specifically, Petitioner has failed to show that the Permit does not meet water
quality standards for best usage in Class C waters.
5. Petitioner has failed to establish that Respondent was required to consider the cumulative
impacts of all possible pollutant sources within the Rocky River watershed either in its
• eview of Siler City's application for renewal of the NPDES permit which authorizes
Siler City to operate its wastewater treat plant or in its issuance of the Permit.
20

6. Petitioner has failed to meet its burden to show that that NPDES Permit No. NC0026441,
issued by Respondent on August 28, 2008, fails to protect downstream "existing uses" in
the Rocky River.
DECISION
Respondent's August 29, 2008 decision to issue NPDES Permit No. NC0026441 to
Intervenor Town of Siler City, is supported by a preponderance of admissible evidence, and is
AFFIRMED.
NOTICE AND ORDER
The decision of the Administrative Law judge in this contested case is made under the
authority of G.S. 150B-34 and will be reviewed by the agency making the final decision according to
the provisions of G.S. 15013-36. The agency making the final decision is required to give each party
an opportunity to file exceptions to the decision of the Administrative Law Judge and to present
written argument to those in the agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the Environmental
Management Commission.
This the =98of September, 2009.
zavm�-
Beecher R. Gray
Administrative Law Judge
21

A copy of the foregoing was mailed to:
John D. Runkle
Attorney at Law
PO Box 3793
Chapel Hill, NC 27515
ATTORNEY FOR PETMONER
William C. Morgan, Jr.
Attorney at Law
75 Church Street
Asheville, NC 28801
ATTORNEY FOR RESPONDENT
Jane L. Oliver
Assistant Attorney General
NC Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ATTORNEY FOR RESPONDENT
This the 28th day of September, 2009.
Q�y=
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 4313000
Fax: [phone]