20180582 Ver 2_Written Comments Received_20191007

BARBOUR
SEARSON
]ONES
CASH
Attorneys
7 October 2019
NC Division of Water Resources
401 Permitting
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
Email: [e-mail]
Re: Cashiers Canoe Club, Comments on Project ID# 20180582
Dear Madam/Sir:
On behalf of Donna H. Lehn, Phyllis Monahan, and William Monahan, all of whom together own
the property known as 197 Cashiers Lake Road, I am objecting to the proposed application. Ms.
Monahan and Ms. Lehn live at that location (the "Monahan-Lehn property") and use their onsite well for
drinking water. The Monahan-Lehn property is a property of less than one-half acre.
The Cashiers Canoe Club Development, owner of 89 +/- acres, has applied to your office seeking
approval to dredge Cashiers Lake and remove approximately 86,000 cubic yards of sludge at the bottom
of the lake and dump it in a large pile immediately behind the Monahan-Lehn property. Multiple
members of the community provided testimony to the effect that the Cashiers Plastics Plant, which
operated during the 1970s and 1980s, dumped copious quantities of chemical waste into the lake
and/or streams that led to the lake.
We believe that significant amounts of bis (2-ethylhexyl)phthalate (aka di(2-ethylhexyl)phthalate
and DEHP), among other chemicals, were released into the lake by the Cashiers Plastics Plant. CCCD has
not made any representation as to testing performed on the sediment at the bottom of Cashiers Lake
and in the surrounding wetlands that it seeks to dredge. Significantly, CCCD has conspicuously failed to
represent that its dredging and discharge of sludge behind the Monahan-Lehn property will not have an
adverse impact on the groundwater of the wells of the Monahan-Lehn property (or the Malinda Holley
property located at 215 Cashiers Lake Road or the Jeff Collins property located on the other side of the
Monahan-Lehn property).
NC DEQ rules require that Section 401 applicants "must demonstrate that they have avoided and
minimized impacts to [waters of the State] to the maximum extent practical." Groundwaters, including
private wells, are waters of the State. See N.C. Gen Stat. § 143-212(6), Attach. 01. CCCD has failed to do
so. Moreover, based on the proposed rule 15 NCAC 02C, already submitted for comment and ready for
approval, if the aforementioned wells are contaminated from the sludge from CCCD's dredging, the
Monahan, Lehn, Holley, and Collins families must permanently abandon their wells, which would render
their properties worthless to anyone who did not control community water lines from an alternative
water source (like CCCD). See Proposed Rule 15 NCAC 02C.0112, Attach. 02 at 3.
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• A Section 401 water quality certifications is required for any federally permitted or licensed
activity that may result in a discharge of waters of the United States. See
https://deg.nc.gov/about/divisions/water-resources/water-quality-permitting/401-buffer-
permitting-branch/frequently (NC DEQ FAQ, Attach. 03).
• The North Carolina Division of Water Resources (DWR) is the state agency in North Carolina
responsible for issuing Section 401 water quality certifications. See NC DEQ FAQ, Attach. 03.
• A Section 401 water quality certification from DWR "certifies that that a givenrp olect will not
degrade the Waters of the State or violate State water quality standards." See NC DEQ FAQ,
Attach. 03 (emphasis added).
• Before the DWR may certify a Section 401 application, the "applicant [] must demonstrate that
they have avoided and minimized impacts [to the Waters of the State] to the maximum extent
practical." See NC DEQ FAQ, Attach. 03 (emphasis added).
o Avoid means that the applicant has designed the project to avoid impacts to [Waters of
the State, including considering] alternative ... locations." See NC DEQ FAQ, Attach. 03
(emphasis added).
o Minimize means that when the applicant demonstrates that it took the maximum
extent practical to avoid impacts [to the Waters of the State] and such impacts could
not be avoided, the applicant must then demonstrate that it took the maximum extent
practical to minimize impacts to the Waters of the State, including considering
alternative options and locations. See NC DEQ FAQ, Attach. 03 (emphasis added).
• As set forth in Section 6 of its application to the U.S. Army Corps of Engineers (USACE), CCCD
does not mention any consideration or contemplation whatsoever of locating the spoils of its
dredging activities anywhere other than behind the Monahan-Lehn half -acre property (despite
owning 89+/- acres in this location (and countless other properties throughout town). See
Section 6 of the USACE Application, Attach. 03 at 2.
• Only when "the Regional Administrator determines that there is reasonable assurance that the
proposed activity will not result in a violation of applicable water quality standards, he shall so
certify. See 40 C.F.R. § 121.24 (7-1-18 Edition), Attach. 04.
Based on the record before the DWR, and as set forth herein, (1) the applicant has not
demonstrated that it has taken any efforts (let alone the maximum extent practical) to avoid and/or
minimize adverse impacts from the relocation of sludge adjacent to the land on which the wells of the
Monahan, Lehn, Holley, and Collins families lie, which sludge is believed to contain contaminants that
could poison the groundwaters of those wells. Accordingly, the Regional Administrator does not have
"reasonable assurance that the proposed activity will not result in a violation of applicable water quality
standards" and accordingly, cannot, on this record, certify such by approving CCCD's Section 401
application.
• At the September 5, 2019, DWR hearing, Malinda Holley, owner of the property at 215 Cashiers
Lake Road, adjacent to the Monahan-Lehn property and the dumping site for the Cashiers Lake
sludge, testified that during the 1970s, the Cashiers Plastics Plant dumped all kinds of
contaminants into Cashiers Lake. She further stated that for years afterwards, there were
"three -eyed fish" and, simply, that the lake was heavily contaminated. Ms. Holley noted that
contaminated sludge dumped adjacent to the Monahan, Lehn, Collins, and Holley properties
would adversely affect the groundwater in each of their wells and their property values. She
bluntly asked DWR: "Are core samples being taken?" See 20180582 Ver 2 Public Hearing
Audio 20190905 (Begin 15:15 min.), found at
https://edocs.deg.nc.gov/WaterResources/Browse.aspx?startid=665703&dbid=0

• At the September 5, 2019, DWR hearing, Kitty Eazon said that if the contaminants from the
Cashiers Plastics Plant are dredged up from Cashiers Lake, "they're going to be where you put
them." She also asked DWR: "Has anyone tested what is in the lake from the Cashiers Plastics
Plant?" She noted that the contaminants are likely to leach back to the adjacent waters, which
waters are the headwaters to the Chattooga River. See 20180582 Ver 2 Public Hearing
Audio 20190905 (Begin 32:00 min.), found at
https://edocs.deg.nc.gov/WaterResources/Browse.aspx?startid=665703&dbid=0
• The Chattooga River Conservancy further stated that "[h]armful contaminants from the old
Cashiers Plastics Corporation are thought to be in the Cashiers Lake's wetlands and lake bed,
and thus would be in the dredging spoils. (Chemicals from the plastics plant reportedly leaked
or otherwise wound up in the soil around the plastics plant, which subsequently was deposited
as erosion and sediment in the Cashiers Lake and wetlands.)"
See https://chattoogariver.org/action-alert-cashiers-lake-dredging-development/
• Adjacent to Cashiers Lake, an environmental protection agency for either the State or the
federal government capped a well, presumably for contamination. See Capped and Locked Well
pictures, Attach. 05.
According to the 2010 Census, 157 people resided in the town of Cashiers, North Carolina, a 1.1
square mile unincorporated village. See https://en.wikipedia.org/wiki/Cashiers, North Carolina. It is
not likely that in a town of so few residents in close geographic proximity would not know what goes on
there.
• In December 1969, the Cashiers Plastics Corporation broke ground in Cashiers, NC. See Cashiers
Plastics Plant pictures, Attach. 06 at 1.
• In the early 1970s, the Cashiers Plastics plant began manufacturing injection molded plastic
goods. See Cashiers Plastics Plant pictures, Attach. 06 at 1-2.
• In December 1984, the Environmental Protection Agency (EPA) issued the Development
Document for Effluent Limitations Guidelines for Plastics Molding and Forming (EPA Guide on
Plastics Molding and Forming). See https://www.epa.gov/sites/production/files/2018-
03/documents/plastics-molding-forming dd 1984.pdf (Attach. 07).
• The EPA noted that for Plastics Molding and Forming (PM&F) manufacturing facilities that used
process waters (i.e., water that comes into contact with plastic material during processing),
almost 50% of those plants "discharge [those] waters directly to rivers and streams".' See EPA
Guide on Plastics Molding and Forming, Attach. 07 at 4.
• Process waters come into contact with the plastic materials at three points in the
manufacturing process: (1) the cooling and heating stage; (2) the cleaning stage; and (3) the
finishing stage. See EPA Guide on Plastics Molding and Forming, Attach. 07 at 5.
• The process waters used through this process generate byproducts, which the EPA identifies as
"priority Toxic Pollutants." See EPA Guide on Plastics Molding and Forming, Attach. 07 at 6.
• One of the most common Priority Toxic Pollutants generated from the PM&F manufacturing
process is bis (2-ethylhexyl)phthalate (aka di(2-ethylhexyl)phthalate and DEHP). DEHP is
discharged from both Stages 1 and 3 of the PM&F manufacturing process. See EPA Guide on
Plastics Molding and Forming, Attach. 07 at 6.
1 Given the consistent testimony of the witnesses described herein in this town of 157, combined with the picture
of the Cashiers Plastics Corporations' successful well drilling to "provide water to the plastics plant," it is probable
that the Cashiers Plastics Plant utilized process waters in the PM&F manufacturing process. See Cashiers Plastics
Plant pictures, Attach. XX at 3.

• Other common EPA Priority Toxic Pollutants generated as a result of the PM&F manufacturing
process are: phenol, zinc, di -n -butyl phthalate, and dimethyl phthalate. See EPA Guide on
Plastics Molding and Forming, Attach. 07 at 6. There are additional EPA Priority Toxic Pollutants
that are less common as well, that are byproducts of the PM&F process water manufacturing
process. See EPA Guide on Plastics Molding and Forming, Attach. 07 at 7.
• According to the World Health Organization (WHO), the hydrolysis half-life of DEHP is more
than 100 years. See Di(2-ethylhexyl)phthalate in Drinking -water Background document for
development of WHO Guidelines for Drinking -water Quality, Attach. 08 in pertinent part, at 6;
see also the Center for Disease Control, Section 6, Potential for Human Exposure,
https://www.atsdr.cdc.gov/toxprofiles/tp9-c6.pdf. Translated: After 100 years, 50% of the
DEHP in a water body breaks down (after the next 100 years, only 25% of the DEHP remains).
• When DEHP breaks down, it "is not broken down into simple chemicals — the main breakdown
product is the monoester (mono-ethylhexyl phthalate or MEHP), that is known to have adverse
effects on reproduction in mammals." See Scientific Facts on Diethylhexyl phthalate, Attach.
09, at 3.
• "[L]aboratory tests indicate a high potential for bioaccumulation (increasing concentrations
over time) of DEHP in organisms that live in water and [DEHP] binds strongly to sediment, soil,
and [] sludge." See Scientific Facts on Diethylhexyl phthalate, Attach. 09, at 3.
• High levels of DEHP, like those from PM&F manufacturing sites, "can have adverse affects on
fish." See Scientific Facts on Diethylhexyl phthalate, Attach. 09, at 4.
Conspicuously absent from CCCD's application to the Corps of Army Engineers is any
representation that the 86,000 cubic yards of sludge from Cashiers Lake that it will be dumping behind
the Monahan-Lehn property will not result in any adverse impact to the groundwater and/or adjacent
wells. See Sections 5.3, 6.3, 8.2.3, 8.5, and 8.5.1, Attach. 10 at 1-5.
• The State of North Carolina has drafted submitted for comment, revised, prepared, and
proposed Rule 15A NCAC 02C.0112, Well Construction Standards, for implementation.
Under this rule, "A well that is not maintained by the owner to conserve and protect the
groundwater resources or that constitutes a source or channel of contamination to the
water supply ... shall be permanently abandoned." See Attach. 02 at 3.
• Proposed Rule 15A NCAC 02C, Well Construction Standards, defines "Contamination" as the
"introduction of foreign materials of such nature, quality, and quantity to the groundwaters
as to exceed the groundwater quality standards set forth in 15A NCAC 02 .0200. See
Proposed Rule 15A NCAC 02C, Well Construction Standards, Attach. 02 at 2.
• Contaminants are defined as "any substance occurring in groundwater in concentrations
which exceed the groundwater quality standards specified in Rule .0202 of this subchapter."
See 15A NCAC 02L.0102(4), Definitions, Attach. 11.
• 15A NCAC 02 .0202 sets the maximum allowable concentrations of contaminants before
groundwater is rendered "unsuitable." Detection of contaminants "at or above the
practical quantitation limit constitutes a violation of the standard. See 15A NCAC 02L
.0202(a) and (b)(1), Definitions, Attach. 12.
• "Where two or more substances exist in combination," a determination may be made that
the combination, even at amounts lower than the threshold amount for each contaminant
separately, may be determined to constitute a violation of the standard. See 15A NCAC 02L
.0202(b)(2), Definitions, Attach. 12.
• Bis(2-ethyl hexyl) phthalate (di(2-ethylhexyl)phthalate) (aka DEHP), Dibutyl (or di-n-
butyl)phthalate, Phenol, and Zinc are all contaminants identified in 15A NCAC 02 .0202,
where groundwater in a well with amounts in excess of those listed would result in the

owner of the well having to abandon her well. See 15A NCAC 02L .0202(h), Definitions,
Attach. 12; see also Proposed Rule 15A NCAC 02C.0112, Well Construction Standards,
Attach. 02.
• According to Proposed Rule 15A NCAC 02C .0113(g), Abandonment of Wells, Monahan and
Lehn (and Holley and Collins) would be responsible for permanent abandonment of their
well in the event it became contaminated from CCCD's Cashiers Lake sludge. See Proposed
Rule 15A NCAC 02C.0113, Well Construction Standards, Attach. 02 at 3-4.
If as a result of the State not requiring that the Cashiers Lake wetlands and sediment first be
thoroughly tested for contaminants prior to dredging and relocation, and the Monahan, Lehn, Holley,
and Collins wells were contaminated by Cashiers Lake sludge, and the wells for these families had to be
permanently abandoned, these property owners would be deprived of almost the entire value of their
land.
The Monahan, Lehn, Holley, and Collins properties are the only three properties that keep the
CCCD development from being enclosed. See April 10, 2019 submission to DWR, Attach. 13 at 11.
CCCD could then purchase all three properties for virtually nothing and, as owner of all
surrounding land, run water lines and clean, uncontaminated water from its well located near the
Cashiers Library and Police Station.
Until CCCD takes affirmative measures to review all alternative locations for the placement of its
dredging spoils in a location not located near the Monahan and/or Lehn wells, it has not "designed the
project to avoid impacts to [Waters of the State, including considering] alternative ... locations." See
NC DEQ FAQ, Attach. 03 (emphasis added). Alternatively, a neutral and trusted source like the federal
EPA (or their third -party contract designee), thoroughly testing the wetlands and Cashiers Lake bed
sediment for chemicals associated with the process waters associated with PM&F manufacturing would
be a step to minimize the impact of the dredge spoils on the groundwater in the Monahan-Lehn well
(and those of their neighbors' wells). Until such (or equivalent) steps are taken and completed, "the
Regional Administrator [cannot] determine that there is reasonable assurance that the proposed activity
will not result in a violation of applicable water quality standards." See 40 C.F.R. § 121.24 (7-1-18
Edition), Attach. 04. Under such circumstances, the Regional Administrator should not certify the
application and, thus, it should not be granted.
Sincerely,
W. Scott Jones, Esq.
Cc:
Andrew Hargrove
Karen Higgins
M. Scott Jones
David W. Brown