NC0003425_Sierra Club Comments_20161104

.,� SIERRA
CLUB
November 4, 2016
Via E-mail to [e-mail]
S. Jay Zimmerman, Director
North Carolina Department of Environmental Quality
Division of Water Resources
Wastewater Permitting
ATTN: Roxboro Permit
1617 Mail Service Center
Raleigh, NC 27699-1617
Re: Comments on Draft National Pollutant Discharge Elimination System Permit for
Duke Energy's Roxboro Steam Electric Plant, Permit No. NC0003425
Dear Mr. Zimmerman,
On behalf of our North Carolina members and supporters, Sierra Club respectfully
submits these comments on the draft National Pollutant Discharge Elimination System
("NPDES") permit for Duke Energy's Roxboro Steam Electric Plant ("Roxboro" or the "Plant"),
Permit No. NC0003425 ("Draft Permit"), noticed for public comment by the North Carolina
Department of Environmental Quality ("DEQ").
As set forth below, the Draft Permit violates the Clean Water Act because it fails to set
adequate effluent limitations, establishes unreasonably long timelines for compliance with
Effluent Limitation Guidelines ("ELGs"), fails to set interim requirements for impingement and
entrainment, attempts to permit illegal seeps, and contains insufficient monitoring requirements.
Given these and other defects in the Draft Permit identified below (as well as those discussed
more fully in comments submitted by the Southern Environmental Law Center, which we hereby
incorporate fully be reference), we urge DEQ to withdraw the Draft Permit, revise it to address
such defects, and reissue it for public comment.
I. BACKGROUND
A. Roxboro Steam Electric Station
With the ability to generate more than 2,200 megawatts of energy, the Roxboro Plant is
the largest coal-fired power plant in North Carolina. The Plant is also one of the oldest, with its
first unit coming online in 1966. The Plant withdraws large quantities of water from adjacent
Hyco Lake for cooling and steam generation purposes and returns a portion of that water to the
river at exceedingly high temperatures. The Plant is equipped with flue gas desulfurization

("FGD") systems (or "scrubbers") and with selective catalytic reduction ("SCR") systems. These
systems remove pollutants from the Plant's exhaust gases, including sulfur dioxide, nitrogen
oxides, and mercury, but their operation results in the generation of coal combustion residuals
and wastewater streams with higher concentrations of toxic pollutants.
The Plant is located on Hyco Lake in Person County, North Carolina, about 7 miles
northwest of the City of Roxboro. Hyco Lake, a popular destination for fishing and other outdoor
recreation, is designated as a Class WS-V and Class B water because, among other uses, the lake
is used "for primary recreation, including frequent or organized swimming."' Nevertheless, the
Plant currently discharges coal ash pond wastewater, stormwater runoff, ash landfill runoff,
chemical metal cleaning wastes treatment basin, FGD wastewater, cooling water, coal pile
runoff, and other wastewaters into Hyco Lake.2
By Duke's estimates, approximately 19.5 million tons of coal combustion residuals (or
"coal ash"), including fly and bottom ash, are stored in two on -site, unlined surface
impoundments, or coal ash ponds, as well as additional millions on an unlined landfill and other
unlined fill areas. The on -site ash ponds have a number of seeps, which DEQ has acknowledged
could pose a serious threat to public health and environmental quality.3 Duke has faced
significant public pressure and legal challenges to address its primitive and dangerous ash
handling practices, but has nevertheless refused to remove coal ash from its unlined ponds at
Roxboro and other sites across the state.
B. Governing Law and Regulations
In enacting the Clean Water Act, Congress established as a national goal the elimination
of all discharges of pollution into navigable waters.4 The Act's implementing regulations are
designed to ensure that this ambitious goal will be met and, to this end, establish the National
Pollutant Discharge Elimination System ("NPDES") permitting program. Under this program, no
pollutant may be discharged from any point source without a NPDES permit, and any failure to
comply with such a permit constitutes a violation of the Clean Water Act.5 The NPDES permit
program is an integral part of the Act's plan to eliminate pollution discharges and restore and
maintain the health and integrity of the nation's waters.6 In North Carolina, the Environmental
Management Commission ("BMC") and DEQ are tasked with ensuring the requirements of the
federal permit program are met through the operation of the state NPDES permitting program.
1 15A NCAC 2B.0219; see also Fact Sheet at 1; 15A NCAC 213.0218.
2 See Roxboro Steam Electric Plant NPDES Permit No. NC0003425 Fact Sheet (hereinafter "Permit Fact Sheet") 6.
3 State of North Carolina ex rel. N.C. DENR, DWQ v. Duke Energy Progress, LLC, No. 13 CVS 11032 (Wake Co.,
Aug. 16, 2013).
4 33 U.S.C. § 1251(a)(1).
5 33 U.S.C. §§ 1311(a) and 1342(a); 40 C.F.R. § 122.41(a).
6 33 U.S.C. § 1342.
7 See 15A N.C. ADMIN. CODE §§ 2A.0105, 2A.0107.
PA

1. Technology and Water Quality Based Effluent Limitations
The Clean Water Act requires that NPDES permits include effluent limits based on the
performance achievable through the use of statutorily -prescribed levels of technology that "will
result in reasonable further progress toward the national goal of eliminating the discharge of all
pollutants."8 Technology -based effluent limitations ("TBELs") constitute a minimum level of
controls that must be included in a NPDES permit "regardless of a discharge's effect on water
quality."9
For facilities like the Roxboro Plant, discharges of pollutants must be eliminated or
controlled through application of Best Available Technology ("BAT").10 In accordance with the
Act's goal to eliminate all discharges of pollutants, BAT limits "shall require the elimination of
discharges of all pollutants if the Administrator finds, on the basis of information available to
him ... that such elimination is technologically and economically achievable ...."11 A
technology is considered "available" where there has been or could be practicable use within an
industry.' Courts have explained that even where "no plant in a given industry has adopted a
pollution control device which could be installed does not mean that the device is not
'available,"' thus ensuring that industry cannot game the system by all agreeing to not adopt the
latest, best pollution control technology.13 A discharger of pollutants may also be required to
transfer a particular technology that has been used in another context where the transfer is
practicable. Likewise, a technology is "economically achievable" under the BAT standard if it is
affordable for the best -run facility within an industry.14
The requirement to meet the BAT standard is ongoing; it compels polluting industries to
meet ever more stringent limitations on the path towards complete elimination of water
pollution.15 With each renewal of a NPDES permit, the permitting agency must reconsider
whether further pollution reductions are attainable. The objective of the law is continuous, rapid
improvement:
The BAT standard reflects the intention of Congress to use the latest scientific
research and technology in setting effluent limits, pushing industries toward the
goal of zero discharge as quickly as possible. In setting BAT, EPA uses not the
a 33 U.S.C. § 131l(b)(2)(A)(i), see also id. § 131l(b)(1)(A).
9 Am. Petroleum Inst. v. EPA, 661 F.2d 340, 344 (5th Cir. 1981).
10 See 33 U.S.C. § 1311(b)(2)(A).
" 33 U.S.C. § 131 l(b)(2)(A).
12 See Chem. Mfrs. Assn v. EPA, 870 F.2d 177, 226 (5th Cir. 1989) ("Congress intended these [BAT] limitations to
be based on the performance of the single best -performing plant in an industrial field.").
13 Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620, 636 (2d Cir. 1976).
14 See, e.g., Reynolds Metals Co. v. EPA, 760 F.2d 549, 562 (4th Cir. 1985); Tanner's Council ofAm. v. Train, 540
F.2d 1188, 1191-92 (4th Cir. 1976).
15 See NRDC v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987).

average plant, but the optimally operating plant, the pilot plant which acts as a
beacon to show what is possible.16
In sum, "BAT should represent a commitment of the maximum resources economically possible
to the ultimate goal of eliminating all polluting discharges."17
The U.S. Environmental Protection Agency ("EPA") periodically codifies national
effluent limitation guidelines ("ELGs") for NPDES permits that reflect BAT standards for
particular discharges, pollutants, and activities found in a category of point sources.18 Where
those guidelines have been set, they establish the floor —the minimum level of control that must
be imposed in an NPDES permit. However, where EPA has not set ELGs for a pollutant or
source or particular activity, or where such guidelines are inadequate, a state permitting agency
must promulgate permit effluent limitations, in accordance with BAT, on a case -by -case basis
using the permit writer's best professional judgment.19 In doing so, the state agency is bound by
the same factors that EPA is required to apply in determining and applying BAT limits in a
permit.20
EPA recently updated its ELGs for steam electric power plants, like Roxboro. EPA's
final rule, published in November 2015, noted: "[s]team electric power plants contribute the
greatest amount of all toxic pollutants discharged to surface waters by industrial categories
regulated under the [Clean Water Act]."21 Among other things, the new rule prohibits the
discharge of pollutants from fly ash and bottom ash transport water and limits the amount of
arsenic, mercury, selenium, and nitrate that may be discharged in FGD wastewater.22 Dischargers
must meet these limitations "as soon as possible beginning November 1, 2018, but no later than
December 31, 2023."23 The rule further provides that "as soon as possible date means November
1, 2018, unless the permitting authority establishes a later date, after receiving information from
the discharger" and considering certain factors specified in the rule.24 Where a permitting
authority establishes a later compliance date, it must "provide a well -documented justification
... in the fact sheet or administrative record for the permit" explaining "why allowing additional
16 Kennecott v. EPA, 780 F.2d 445, 448 (4th Cir. 1985) (citing 1 Legislative History of the Federal Water Pollution
Control Act of 1972, 798 (Committee Print compiled for the Senate Committee on Public Works by the Library of
Congress), Ser. No. 93-1 (1973)).
17 Natural Res. Def. Council v. EPA, 863 F.2d 1420, 1426 (9th Cir. 1988) (quotations omitted); see also EPA v.
Nat'l Crushed Stone Assn, 449 U.S. 64, 74-75 (1980) (if a discharger of pollutants can afford the best available
technology, then it must meet, and should not be allowed a variance from, stringent BAT limits).
18 See 40 C.F.R. § 423.
19 40 C.F.R. § 125.3(c)(2) and (3); see also Texas Oil & Gas Assn v. EPA, 161 F.3d 923, 928-29 (5th Cir. 1998).
20 See 33 U.S.C. §§ 131 l(b) & 1342(b); see also 33 U.S.C. § 1314(b)(2)(B); Natural Res. Def Council v. EPA, 859
F.2d 156, 183 (D.C. Cir. 1988).
21 U.S. EPA, Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
Category, 80 Fed. Reg. 67,838 (Nov. 3, 2015) (codified at 40 C.F.R. Pt. 423).
22 40 C.F.R. §§ 423.13 (g)(1)(i), (h)(1)(i), and (k)(1)(i).
23 Id.
24 40 C.F.R. § 423.1 l(t); 80 Fed. Reg. at 67883.
2

time to meet the limitations is appropriate, and why the discharger cannot meet the final effluent
limitations as of November 1, 2018."25
2. Water Quality Requirements
One of the most important functions that a state performs under the Clean Water Act is to
promulgate water quality standards.26 Water quality standards consist of both "designated `uses'
for a body of water (e.g., public water supply, recreation, agriculture) and a set of `criteria'
specifying the maximum concentration of pollutants that may be present in the water without
impairing its suitability for designated uses."27
After application of the most stringent treatment technologies available under the BAT
standard, if a discharge causes or contributes, or has the reasonable potential to cause or
contribute to a violation of water quality standards, the permitting agency must also include any
limits in the NPDES permits necessary to ensure that water quality standards (both narrative and
numeric) are maintained and not violated —these limits are generally referred to as Water Quality
Based Effluent Limits ("WQBELs").28 Only after an analysis of available treatment technologies
is conduced will WQBELs be developed.
3. Cooling Water Systems
Section 316(b) of the Clean Water Act requires that the "location, design, construction,
and capacity of cooling water intake structures reflect the best technology available (`BTA") for
minimizing adverse environmental impact" —including impingement, entrainment, and increased
water temperature.29 As with all technology -based standards, dischargers must comply with
Section 316(b)'s technology -based effluent limitations immediately, meaning that the Roxboro
Plant should have been brought into compliance long ago. The Plant now must be brought into
compliance with Section 316(b) "as soon as possible," and, in the interim, must be subject to
"interim requirements and dates for their achievement." 30
In 2004, EPA published regulations designed to implement Section 316(b) at existing
power plants like Roxboro. Following lejal challenges, however, the Second Circuit remanded
numerous aspects of the rule to the EPA. 1 The U.S. Supreme Court reviewed the Second
Circuit's decision on the limited issue of whether Section 316 authorizes EPA to balance costs
25 80 Fed. Reg. at 67883.
26 See 33 U.S.C. §§ 1313(a)—(c) (requiring states to adopt water quality standards and requiring EPA to set water
quality standards when states fail to do so).
27 American Paper Inst. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993); see 33 U.S.C. § 1313(c)(2)(A).
26 See 40 C.F.R. § 122.44(d). "[T]he permit must contain effluent limits" for any pollutant for which the state
determines there is a reasonable potential for the pollutant to cause or contribute to a violation. Id.
§ 122.44(d)(1)(iii); see also Am. Paperinst. v. EPA, 996 F.2d 346, 350 (D.C. Cir. 1993); Waterkeeper Alliance, Inc.
v. EPA, 399 F.3d 486, 502 (2d. Cir. 2005).
29 33 U.S.C. § 1326(b).
30 40 C.F.R. § 122.47(a); see also 33 U.S.C. § 131l(b).
31 See Riverkeeper Inc. v. U.S. Envtl. Prot. Agency, 475 F.3d 83 (2d Cir. 2007) [hereinafter Riverkeeper II].
5

and benefits.32 Other aspects of the Riverkeeper II decision were not addressed by the Supreme
Court's review. In response to the Second Circuit's remand of extensive portions of the rule,
EPA withdrew the entire regulation for existing facilities so that it could revise the rule to be
consistent with the Clean Water Act.33 Notwithstanding the withdrawal of those rules, EPA
instructed states that they could not lawfully delay NPDES permitting or fail to include BTA
determinations in NPDES permits, and that they should continue to make BTA determinations
and implement Section 316(b) of the Clean Water Act on the basis that they had for forty
years —using their best professional judgment ("BPJ"),34
On May 19, 2014, the EPA Administrator signed a new final rule implementing Section
316(b) of the Clean Water Act at existing facilities.35 This rule requires existing facilities to
adhere to one of seven compliance options as BTA for impingement and mortality reduction and
requires DEQ to establish a BTA-based standard for entrainment using BPJ. Facilities like
Roxboro are required to submit an application at the same time as their NPDES permit renewal
application with information supporting entrainment and impingement technology decisions.36
However, facilities with permits expiring before July 14, 2018 may request an alternative
schedule for information submittal, which will be granted only if "the owner or operator of the
facility demonstrates that it could not develop the required information by the applicable date for
submission."37 When an alternative schedule has been granted, the permitting agency must still
establish interim BTA requirements in the permit using BPJ on a site -specific basis. 38 As
discussed further below, the new rule does not alter the inevitability of the conclusion that
closed -cycle cooling is the best technology available to reduce the adverse environmental
impacts of Chesterfield's cooling system.
For entrainment control, the new rule specifies five factors that a permit writer must
consider when establishing a site -specific entrainment standard:
(i) Numbers and types of organisms entrained ... ; (ii) Impact of changes in [air]
emissions ... associated with entrainment technologies; (iii) Land availability
inasmuch as it relates to the feasibility of entrainment technology; (iv) Remaining
[facility] useful plant life; and (v) Quantified and qualitative social benefits and
costs of available entrainment technologies when such information on both
benefits and costs is of sufficient rigor to make a decision.39
32 Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009).
33 See EPA, National Pollutant Discharge Elimination System —Suspension of Regulations Establishing
Requirements for Cooling Water Intake Structures at Phase II Existing Facilities; Suspension of Final Rule, 72 Fed.
Reg. 37,107 (July 9, 2007).
34 See EPA Memorandum from Benjamin Grumbles, Implementation of the Decision in Riverkeeper, Inc. v. EPA,
Remanding the Cooling Water Intake Structures Phase II Regulation (March 20, 2007) ("all permits for Phase II
[existing] facilities should include conditions under section 316(b) of the CWA developed on a Best Professional
Judgment basis.").
35 79 Fed. Reg. 48,300.
36 40 C.F.R. § 122.21.
37 40 C.F.R. § 125.95(a)(2).
38 40 C.F.R. § 125.98(6).
39 40 C.F.R. § 125.98(f)(2).
no

In addition, the rule provides that the BTA decision may also be based on six additional factors
"to the extent the applicant submitted information ... on these factors," and may also be based
on any additional information requested by the permit writer .40 These six additional factors are:
(i) Entrainment impacts on the waterbody; (ii) Thermal discharge impacts; (iii) Credit for
reductions in flow associated with the retirement of units occurring within the ten years
preceding October 14, 2014; (iv) Impacts on the reliability of energy delivery within the
immediate area; (v) Impacts on water consumption; and (vi) Availability of process
water, gray water, waste water, reclaimed water, or other waters of appropriate quantity
and quality for reuse as cooling water.41
To control impingement, the new regulations designate a set of "pre -approved"
technologies that a facility can implement to satisfy the BTA standard .42 The regulations also
allow a facility to use other technologies to meet the BTA standard if it can show that they will
perform sufficiently.43
II. THE DRAFT PERMIT VIOLATES THE CLEAN WATER ACT
A. The Draft Permit Fails to Establish Sufficient Effluent Limits for Toxic Pollutants.
With the exception of reporting requirements for a handful of pollutants, the Draft Permit
fails to include effluent limits for most toxic pollutants that currently are being discharged or will
be discharged as part of the ash pond closure process from Outfalls 002, 003, and 006. The
priority pollutant scan data submitted by Duke as part of its 2011 NPDES permit renewal
application indicate that mercury, arsenic, selenium, molybdenum, lead, fluoride, and other
harmful pollutants currently are being discharged by Roxboro through external Outfalls 003 and
006. The Draft Permit nevertheless fails to place any limit on these discharges, even during ash
pond closure activities, which likely will increase pollutant concentrations in discharge streams.
North Carolina law requires Duke to close the ash ponds at the Roxboro Plant by
December 31, 2024.44 Duke has indicated that its closure plans will involve the decanting and
dewatering of the West ash pond and the discharge of wastewater contaminated with coal ash
constituents via Outfalls 002 and 003 into Hyco Lake.45 Other than limits on discharges of oil
and grease, total suspended solids, and pH,4 the only restriction the Draft Permit establishes for
the dewatering phase is a limit on flow through Outfall 002 of 1 million gallons per day.47 And
for Outfall 003, the Draft Permit only sets limits for chlorine and ammonia.48 The Draft Permit
40 40 C.F.R. §§ 125.98(f)(3) and (i).
" 40 C.F.R. § 125.98(i).
42 40 C.F.R. § 125.94(c).
43 See 40 C.F.R. §§ 125.94(c)(6) and (7).
44 N.C.G.S.A. § 130A-309.214.
45 See Roxboro Fact Sheet at 4.
46 Draft Permit at 5.
47 See id. at 7.
41 Id. at 8.
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places no limits whatsoever on discharges of selenium, arsenic, and molybdenum from the ash
pond despite the agency's admission that all three toxic pollutants were detected at
concentrations higher than the water quality standards.49
Similarly, selenium was detected above the water quality standard at Outfall 006, which
discharges coal pile runoff into the Hyco Lake. DEQ nevertheless only imposes quarterly
monitoring requirements for selenium discharged from that outfall.
1. DEQ failed to impose TBELs for the Plant's toxic pollutant discharges.
The Clean Water Act requires DEQ to use its best professional judgment to assess BAT
for Roxboro and impose TBELs accordingly. However, DEQ hardly engaged in any site -specific
technology analysis for Roxboro, instead relying ELGs and state water quality and mercury
TMDL regulations.50 In doing so, DEQ fails to include any limitation whatsoever on a number of
pollutants known to be discharged from Outfalls 002, 003, and 006, including arsenic, mercury,
and selenium. This is especially concerning given the serious likelihood of increased toxic
pollutant discharge during Roxboro's ash pond closure process.
ELGs only represent the minimum technology -based limitations required at plants like
Roxboro. DEQ still has a duty to impose any additional limitations that BAT allows, i.e.,
limitations based on technology that could be practically used in an industry and that is
affordable for the best -run facility in that industry.51 DEQ need not even look as far as the
industry's top performers to see that some technology is available to control these pollutant
discharges at Roxboro. Like Roxboro, another Duke Energy coal plant in North Carolina, the
L.V. Sutton Steam Electric Plant, is closing its ash pond through a decanting and dewatering
process.52 Unlike Roxboro, however, Sutton's NPDES permit includes effluent limitations for
those discharges, including limits on selenium, arsenic, and mercury.53 There is no reason to
believe that no technology is available that could curtail discharge of the many pollutants
discharged by Roxboro when Duke is currently limiting those pollutants at its other plants. Thus
DEQ must assess appropriate TBELs for discharges from the Roxboro ash pond, as well as from
the Plant's coal pile runoff discharged through Outfall 006, and impose restrictions at least as
stringent as those at Duke's other plants, or else explain why no such technology is available.
2. DEQ failed to impose WQBELs for the Plant's toxic pollutant discharges.
In addition to ignoring its duty to impose TBELs at Roxboro based on BAT, effluent
limitations included in the Draft Permit are insufficient to adequately protect water quality.
Selenium, arsenic, and molybdenum were all found in Roxboro's discharges at concentrations
higher than the state's water quality standards, and selenium was found at Outfall 002 (the ash
49 Fact Sheet at 4.
so See id. at 3-8.
5140 C.F.R. § 125.3(c)(2) and (3); see also Texas Oil & Gas Assn v. EPA, 161 F.3d 923, 928-29 (5th Cir. 1998);
Tanner's Council ofAm. v. Train, 540 F.2d 1188, 1195 (4th Cir. 1976), Hooker Chems. & Plastics Corp. v. Train,
537 F.2d 620, 636 (2d Cir. 1976).
52 See L.V. Sutton Steam Electric Plant NPDES Permit No. NC000142 at 3-4.
53 ld.

pond discharge) in concentrations as high as 68.8 µg/1.54 Selenium was also detected at Outfall
006 above water quality standards.55 DEQ nevertheless proposes only monitoring for these
pollutants, and only on a quarterly basis for some. Such measures are inadequate to protect water
quality. These pollutants must be limited until such time that Roxboro can demonstrate that its
discharges are not a threat to water quality.
The Draft Permit also fails to limit or even require the monitoring of mercury discharged
at Outfall 003. The Fact Sheet notes that mercury was not found in concentrations above the
water quality standard of 12 ng/l in samples taken in 2010 and 2011.56 DEQ's failure to establish
WQBELs based on this incomplete and outdated sampling data is not justified. Indeed, mercury
was detected above 50% of that standard at Outfall 003 in 2010 and 2011.57 As discussed above,
DEQ has a duty to establish TBELs for mercury and other pollutants. Moreover, given the fact
that ash pond closure discharges will contain large amounts of mercury that could negatively
impact water quality, DEQ must establish limits on mercury discharges that will protect water
quality. At the very least, DEQ, should require the monitoring necessary to properly assess
potential water quality impacts, before pond decanting and dewatering commence.
B. The Proposed Deadlines for Compliance with New ELGs Are Not Justified.
Rather than properly assess a reasonable timeline for expeditious ELG compliance at
Roxboro as required by the Clean Water Act, DEQ has simply rubber stamped the compliance
dates requested by Duke. As discussed, Roxboro must comply with the ELGs as soon as possible
(i.e., by November 1, 2018 unless DEQ determines that compliance is not possible by that
date).58 Any such determination must be well documented and thoroughly explained .59 There is
no indication that DEQ made any such determination. Instead, it appears simply to have granted
Duke's requested compliance timeline without any independent explanation. In its current form,
the Draft Permit allows Duke until April 2021 to comply with the bottom ash transport water
ELGs and until December 2023 to comply with the FGD wastewater ELGs at the Roxboro Plant.
However, as discussed in detail in the Technical Assessment by Dr. Ranajit Sahu ("Sahu
Assessment") [attached hereto], Duke should have no problem complying with these effluent
limitations much earlier than contemplated by the Draft Permit.
Duke has been on notice of its precise obligations under the updated ELGs since the final
rule was published in September 2015 and has known that new requirements were to be adopted
for far longer. Indeed, Duke made public statements indicating that it was planning for ELG
compliance as early as 2013 and had done enough planning to assess the potential costs of
compliance as early as 2014.60 Moreover, Duke has known that dry ash handling would be
54 Fact Sheet at 4.
55 Id. at 8.
56 This is the most recent sample data available. Id. at 6.
57 See Fact Sheet at 6, Table 5: Mercury Evaluation Outfall 003.
58 40 C.F.R. § 423.11(t); 80 Fed. Reg. at 67,883.
59 80 Fed. Reg. at 67,883.
60 See Duke Energy 2013 Annual Report; Duke Energy 2014 Annual Report at 59, available at
http://www.annualreports.com/Company/duke-energy-corporation.
X

required since September 2014, when North Carolina's Coal Ash Management Act ("CAMA")
was passed. Therefore, Duke has had plenty of time to begin working toward compliance and has
no excuse for waiting until after the Plant's permit renewal to begin doing so. Indeed, in its final
rule, EPA instructed "[r]egardless of when a plant's NPDES permit is ready for renewal, the
plant should immediately begin evaluating how it intends to comply with the requirements of the
final ELGs. In cases where significant changes in operation are appropriate, the plant should
discuss such changes with the permitting authority and evaluate appropriate steps and a timeline
for the changes, even prior to the permit renewal process."61 Nevertheless, the proposed
compliance schedule for meeting ELGs for bottom ash transport water and FGD wastewater
completely fails to take into account any previously conducted planning work. Further, Duke's
requested timeline for ELG compliance at Roxboro fails to overlap tasks that could clearly be
done concurrently, overestimates time needed for certain tasks, and relies on unsubstantiated
claims about potential delay due to staffing, permitting, or siting issues. Despite these
shortcomings and without any indication of an independent evaluation or even request for
addition information from the company, DEQ has proposed to approve Duke's schedule, without
any apparent analysis of the schedule's reasonableness.
1. DEQ should require compliance with bottom ash transport water ELGs at the
Roxboro Plant by November 1, 2018.
As discussed in detail in the Saint Assessment, Duke should be able to comply with the
bottom ash transport water ELGs at Roxboro well before the date proposed in the Draft Permit.
Bottom ash generated at the Roxboro Plant currently is wet sluiced to the West ash pond, and, in
order to comply with the new ELGs, Duke intends to convert the Plant from wet handling of
bottom ash to dry handling. North Carolina law also requires the conversion to dry ash handling,
but by December 31, 2019. Nevertheless, Duke has requested until April 30, 2021, to convert to
dry ash handling16 months beyond the state law deadline and 2 years and 6 months beyond
EPA's November 1, 2018 default compliance date. This extra time is simply not justified, and
DEQ has offered no evidence that it has scrutinized and verified this claim.
Duke's requested April 30, 2021 compliance date is based on artificially inflated
estimates of the time required for completion of various tasks. Duke relies on a number of
completely unsupported and speculative claims to rationalize its excessively drawn out schedule,
requesting a full year to attain a U.S. Army Corps permit, for example, without providing any
evidence that such a permit is necessary. The proposed timeline also fails to overlap tasks that
can and should be completed concurrently, such as infrastructure construction on site and
procurement activities. In addition, Duke claims to need additional time for compliance
although it does not specify precisely how much time —on account of a resource shortage caused
by compliance efforts at other facilities. As the largest power producer in the nation and a
Fortune 500 company, Duke should have no trouble hiring additional staff or third parties. And,
as stated above, Duke has been on notice of its upcoming obligations at its various facilities for
years now.
61 80 Fed. Reg. at 67,882-83 (emphasis added).
10

2. DEQ should require compliance with FGD wastewater ELGs at the Roxboro Plant by
November 2018.
Duke has requested until December 31, 2023—the latest possible date allowed for under
the rule —to comply with the FGD wastewater ELGs. There is simply no reason why Duke
would need more than seven years from today to make the necessary upgrades at the Roxboro
Plant. The schedule submitted to DEQ in purported justification of a December 2023 compliance
date is grossly inflated, includes unsupported conjecture, and should have been rejected —or, at
the very least, questioned. The Roxboro Plant already has some of the treatment system elements
necessary for compliance. As discussed in the Sahu Assessment, Duke should be able to
complete an update of that system by November 2019 at the absolute latest and very likely could
finish the necessary work sooner. Absent an independent evaluation by DEQ supporting an
extended compliance timeline, Duke must comply by November 2018.
Given the existing FGD wastewater treatment system and Duke's nearly ten years of
experience with the system (as well as with similar systems at other plants), Duke is well
positioned to comply with the ELGs by November 2018. And the need to retrofit other facilities
for ELG compliance does not provide an excuse for delay. In fact, Duke itself has had experience
installing FGD wastewater treatment equipment at multiple plants. In addition to the bioreactor
system at Roxboro, Duke was able to install three other systems between 2006 and 2009. At the
time, this technology was brand new.62 Duke has now had many years of experience with the
design, construction, and operation of these systems. There is no justification for the claim that
Duke now needs nearly double the time it took to install four brand new systems to now upgrade
a single system that it has been working with for years.
C. The Draft Permit Fails to Establish Interim Requirements to Reduce the Plant's
Impingement and Entrainment Impacts.
DEQ's approval of an alternate schedule for Duke's provision of information regarding
impingement and entrainment does not eliminate DEQ's obligation to "establish interim BTA
requirements in the permit on a site -specific basis based on the Director's best professional
judgment. ,63 There is no indication that DEQ has made any attempt to develop interim
requirements during this permit renewal cycle. Rather, the Fact Sheet simply states:
The permittee shall comply with the Cooling Water Intake Structure Rule per
40 CFR 125.95. The Division approved the facility request for an alternative
schedule in accordance with 40 CFR 125.95(a)(2). The permittee shall submit all
the materials required by the Rule with the next renewal application.64
Duke first applied for the renewal of the Roxboro Plant's permit in 2011, and EPA's final rule
regarding 316(b) was released two full years ago. Accordingly, DEQ has had more than
sufficient time to assess interim BTA for Roxboro. As such, any final permit must include, at
62 See "Bugs " Used to Treat FGD Wastewater, Power Engineering (Sept. 2009).
63 Id. (emphasis added).
64 Fact Sheet at 3.
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minimum, interim BTA standards based on DEQ's best professional judgment and consideration
of the factors and technologies specified at 40 C.F.R. §§ 125.94 & 125.98.
D. The Draft Permit Would Illegally Legitimize Dangerous Seeps Rather than
Requiring Duke to Correct Them.
As discussed more robustly in SELC's comments, DEQ's permitting of several seeps
from Roxboro's ash pond is highly problematic. Again, to the extent that those issues are not
discussed here, Sierra Club adopts SELC's comments by reference. Sixteen unpermitted seeps
discharging pollutants from coal ash and other sources were identified at Roxboro.65 Far from
requiring Duke to take any corrective action concerning the seeps, DEQ proposes to simply
include these seeps, as well as future seeps, in the permit.66 Meanwhile, these seeps discharge
toxic pollutants in violation of water quality standards and threaten the structural integrity of the
Roxboro dam.
DEQ's proposed treatment of seeps in the Draft Permit would effectively legalize
decades -long violations of the Clean Water Act. In addition, the Draft Permit also attempts to
legitimize seeps that occur in the future that would otherwise be illegal. The Draft Permit
provides an express mechanism to "modify" the permit to include such seeps when they spring
up, but includes no requirements for public notice and comment on such modification. 7 This is
clearly in direct violation of the Clean Water Act; DEQ does not have the authority to authorize
new discharges without first engaging in all NPDES permit modification procedures.68
The Draft Permit also attempts to sanction Roxboro's unpermitted seeps by illegally
abandoning an independent stream as an outfall for those seeps.69 An effluent channel is meant to
convey wastewater to a receiving stream or water body, and therefore cannot itself be a stream.70
Moreover, seeps at Duke's Roxboro facility are violating water quality standards, and, thus,
DEQ is prohibited from permitting those seeps as doing so "cannot reasonably ensure
compliance with applicable water quality standards" as required by North Carolina law.71
Furthermore, permitting seeps that have previously been illegal violates the Clean Water Act's
anti -backsliding provision.72
As DEQ has acknowledged, zero liquid discharge from the ash ponds is the best available
technology. In addition, a prohibition on future discharges from the ponds is the most reasonable
option for remedying the serious health and environmental concerns associated with the seeps.
6s See id.
66 id.
67 Draft Permit at 14.
68 See 33 U.S.C. § 1342(b) (laying out requirements for state NPDES permitting programs, including provisions for
notice and comment, the right to request a hearing, and judicial review).
69 See Fact Sheet at 11; see, e.g., Roxboro CSA, Fig. 2-1 (showing waste boundary for East Ash Basin)
70 15A N.C. Admin. Code 2B.0202.
71 15A N.C. Admin. Code 211.0112(c).
72 33 U.S.C. § 1342(o); 40 C.F.R. § 122.44(1)(1) ("[W]hen a permit is renewed or reissued, interim effluent
limitations, standards or conditions must be at least as stringent as the final effluent limitations, standards, or
conditions in the previous permit ....").
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Thus, DEQ has a duty to impose TBELs based on a zero liquid discharge system immediately.
At the very minimum, proper effluent limits must be assessed for and imposed upon each
individual seep.
E. The Draft Permit Contains Inadequate Monitoring Requirements
The Draft Permit's monitoring requirements are inadequate to ensure compliance with
corresponding effluent limitations or effectively assess toxic pollution in those discharges. At
Outfall 003, for instance, the Draft Permit only contemplates quarterly monitoring of arsenic and
selenium, despite the fact that those pollutants were found in concentrations above water quality
standards in ash pond water, which will eventually be discharged through Outfall 003.73 DEQ
also only imposes quarterly monitoring requirements at Outfall 010 for effluent limitations that
apply on a daily and monthly basis.74 At Outfall 001, to be used for certain previously
unpermitted seeps, the Draft Permit only requires monthly monitoring for the first year, at which
time monitoring is only required quarterly.75 These lax monitoring requirements are clearly
insufficient to ensure compliance with effluent limitations and provide critical information on the
discharge of pollutants, especially during ash pond closure. Any final permit must be corrected
accordingly and include much more robust monitoring requirements.
III. CONCLUSION
For the foregoing reasons, DEQ should re -issue a new draft NPDES permit for the
Roxboro Plant correcting the deficiencies identified above as soon as possible, and notice it for
public comment. We thank DEQ for its attention to and consideration of these comments. Please
do not hesitate to contact the undersigned if you would like to discuss them further.
73 Draft Permit at 8.
74 Id. at 12.
75 Id. at 4.
Sincerely,
/s/ Lane Johnson
Lane Johnson
Law Office of Lane Johnson
1722 Newton Street NW
Washington, D.C. 20010
[phone]
[e-mail]
Outside Counsel for Sierra Club
Bridget Lee
Sierra Club
50 F Street NW, 8th Floor
Washington, D.C. 20001
[phone]
[e-mail]
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cc (via e-mail):
Molly Davis, Chief, NPDES Permitting Section ([e-mail])
Paul Schwartz, Assistant Regional Counsel ([e-mail])
Karrie-Jo Shell, National Energy Sector Permitting Expert (shell.karrie [e-mail])
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