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HomeMy WebLinkAboutCape Fear Steam Station (10)2. Pro mss Energy File No 12520-R November 10, 2011 Mr Matt Matthews Section Chief -Surface Water Protection N.0 Department of Environment and Natural Resources North Carolina Division of Water Quality 1617 Mail Service Center Raleigh, NC 27699-1617 Subject. Carolina Power & Light Co d/b/a Progress Energy Carolinas, Inc (Pi ogress Energy) Cape Fear Steam Electric Plant Draft NPDES Stormwater Permit Comments Dear Mr. Matthews - Progress Energy received the draft individual NPDES Stormwater Permit (NCS000550) for the Cape Fear Steam Electric Plant on October 11. 2011 We have carefully reviewed the draft permit to understand all conditions and requirements it contains. Progress Energy understands that this type of petinit represents a new policy by the Division and will likely be applied to all coal-fired power plants in the NPDES program in North Carolina To that end, the enclosure includes generic as well as site-specific comments. Our review leads us to conclude that the proposed permit conflicts with Session Law 2011-398 (Senate Bill 781) in a number of ways Since the draft permit contains such a large number of provisions that are in conflict with Session Law 2011-398, we are directing this letter to you. We request that the Division of Water Quality provide a formal response to these comments to enable us to fully understand the Division's position in these matters Progress Energy appreciates the opportunity to comment. Please contact Mr Fred Holt in our corporate office, at (919) 546-5286 or email to fred.holt@pgnmail.com, if there are any questions with this submittal i cer of , under penalty of law, that this document and all attachments were pr epared under my direction or supervision in accordance with a system designed to asses a that qualified personnel properly gather and evaluate the information submitted Based on my inquuy of the person ot persons who manage the system, or those persons directly responsible for gather ing the information, the information submitted is, 10 the best of mry knowledge and belief, true, accurate, and complete I am aware that there are sign fcant penalties for submitting false information, including the possibility ofines and nmprrsonment for knowing violations Sincerely, Randy , Plan Manager Cape Fear Stearn Electric Plant RC/rb Enclosure cc. Ms. Bethany A. Georgoulias, Stormwater Permitting Unit Mr Charles Wakild, Deputy Director Ms. Caroline Choi, Progress Energy Mr. George Everett, Duke Energy Ms Robin Bryson, Progress Energy Progress Energy Carolinas, Inc Capr I ear ~tram PI int 1r00 1 P&I Rudd Mune ine NC 11559 Enclosure Comment 1 The draft permit appears to be in conflict with the provisions of Senate Bill 781 in several ways. Senate Bill 781 provides-' • An agency shall not enforce or implement a policy or guideline that is applicable to a general practice of the agency without adopting said policy or guideline as a rule. • An agency shall seek to reduce the burden upon those persons who must comply with rules. • An agency shall achieve the regulatory objective in a cost-effective manner. • An agency shall not impose requirements more stringent than the federal analogue • Rules must be written in a clear, unambiguous, and reasonable manner. The subject draft NPDES permit contains several items and issues that appear in conflict with the above. They are: Division of Water Quality Transmittal Letter A letter dated October 11, 2011, transmitting the draft permit stated "The draft permit proposes monitoring requirements and conditions that are consistent with the Stormwater Permitting Unit's approach to permitting all coal-fired power plants in the NPDES program." This "approach" constitutes a rule under G.S. 150B -2(8a) and therefore must be adopted as a rule as per Session Law 2011-398. Progress Energy believes this "approach" should be adopted as a rule. Comparison of Proposed Permit versus Past Permits Past permit conditions required the development and implementation of a Storm Water Pollution Prevention Plan (SWPPP), the identification of the primary sources of materials/pollutants, establishment of Best Management Practices (BMPs), and the qualitative requirements of inspections of the storm water discharges to determine if the SWPPP and associated BMPs are adequate for preventing materials and pollutants from being introduced into the storm water and consequently discharged The proposed permit does not seek to reduce the burden on the permittee or even to maintain the status quo. In fact the proposed permit increases the burden on the permittee. Additionally, the complexity of the proposed permit is increased. Alternate means for accomplishing the goals of monitoring the effectiveness of BMPs will be provided later in this document. Fact Sheet Statements 40 CFR 124.8,requires the development of a fact sheet for a non -major facility that is the subject of wide -spread public interest or raises major issues. The DWQ did prepare a fact sheet for this proposed permit. The fact sheet provides: "This direction is based on the accumulating complexities in power plant wastewater permits, and the Division's need to better manage stormwater data records for these sites The proposed draft NPDES stormwater permit for this facility reflects the permitting strategy for all coal-fired power plants established by the Stormwater Permitting Unit (SPU) in 2009 " Mr. Matt Matthews 2 November 10, 2011 "This plant site was included in the Environmental Integrity Project and Earthjustice report called `Out of Control Mounting Damages from Coal Ash Waste Sites' (February 2010) The report noted groundwater monitoring at the Cape Fear Steam Plant found concentrations of lead, chromium, boron, iron, manganese, and sulfate above NC groundwater standards, at wells within 125' of ash pond impoundments The plant site operates four unlined ash impoundments, one active and three inactive The draft stormwater permit proposes monitoring for all of these constituents except iron and manganese " First, as mentioned earlier this "permitting strategy" constitutes a rule under G.S. 150B -2(8a) and therefore must be adopted as a rule as per Session Law 2011-398. Otherwise the permit as drafted would appear to be in violation of North Carolina Statutes Second, Progress Energy takes exception to the DWQ staff basing permitting policy on un -vetted, un -scrutinized, non -peer reviewed third -party opinions. Progress Energy feels that this is improper. Last, it is stated that the basis for the extensive monitoring in the proposed permit is groundwater data from the aforementioned report. Progress Energy fails to see the connection between groundwater and storm water discharges, much less the connection between groundwater and the need to monitor 22 parameters in the storm water discharges. Comment 2 Part II, Section A, Item I (a) — The DWQ lists all waters in the state as impaired by mercury whether or not there is data to support the listing. We presume these receiving waters must be listed for mercury. Comment 3 Part II, Section A, Items I (a) – (e) Progress Energy has developed site plans at applicable sites based on previous requirements. The draft permit contains several provisions in these sections that expand requirements for the site plan when compared to past requirements. Therefore, Progress Energy will have to amend these site plans to comply with the additional requirements. These additional requirements unnecessarily increase the burden and complexity of the permit and appear to be at odds with Senate Bill 781. Comment 4 Part II, Section A, Items 2(b) and (c) — Progress Energy has developed storm water management plans at applicable sites based on previous requirements. The draft permit contains several provisions in these sections that expand requirements for the storm water management plan when compared to past requirements. Therefore, Progress Energy will have to amend these plans to comply with the additional requirements These requirements unnecessarily increase the burden and complexity of the permit and appear to be at odds with Senate Bill 781. Comment 5 Part II, Section A, Item 2(b) — Secondary Containment Requirements and Records – the proposed permit imposes requirements for secondary containment for certain storage of materials. Progress Energy is not aware of any state or federal regulatory requirement for such containment. Therefore these requirements are more stringent than required by state or federal regulation. This appears to conflict with Senate Bill 781. Mr. Matt Matthews 3 November 10, 2011 Comment 6 Part II, Section A, Items 3, 4, 5, 7, and 8 — There are several provisions in these sections that expand requirements from previous requirements. Therefore, Progress Energy will have to amend the current Management Plan to comply with the additional requirements. These requirements unnecessarily increase the burden and complexity of the permit and appear to be at odds with Senate Bill 781. Comment 7 Part II, Section B Representative Storm Event - Recent information and guidance from EPA no longer restricts the definition of a representative storm event for permit monitoring to events greater than 0.1 inches. The 0.1 inch provision is a requirement for submittal of applications but not for compliance monitoring related to a NPDES permit Progress Energy requests the definition for a representative storm event reflect the federal definition found in the current EPA Multi -Sector General Permit. Comment 8 Part ll, Section B, Table 1 — Monitoring requirements for the list of parameters appear to exceed applicable principles in four areas: (1) Monitoring of this total list of parameters apparently reflects a permitting approach or strategy that has not been adopted as a rule, (2) This monitoring is more burdensome than previous permit requirements; (3) Achievement of the purpose of assessing effectiveness of pollution prevention measures by monitoring storm water can be accomplished in other, more cost effective ways; (4) Federal guidance in this regard is reflected in the EPA Multi -Sector General Permit which requires benchmark monitoring only for iron for the steam electric sector Therefore, the Division has imposed provisions that are more stringent than the Federal analogue. The list of discharge characteristics appear excessive, especially when considered in regard to the Tier One and Tier Two requirements and considering the primary jurisdictional activity of concern is apparently simply spillage of coal fines along a portion of a railroad track. Progress Energy understands that the purpose and goal of the storm water monitoring requirement is to assess the effectiveness of the SWPPP and associated BMPs. Instead of the monitoring of an excessive number of parameters and being possibly looped into even more excessive, unnecessary monitoring in Tier Two, Progress Energy believes the same purpose and goal can be achieved by monitoring a surrogate, indicator parameter(s). For the expected pollutant, coal, this surrogate could be boron. Boron is readily associated with coal and would be a direct measurement of any coal fines getting into the storm water discharges in amounts of concern. Boron is not as ubiquitous as aluminum, mercury, copper, zinc, lead and other metals and metalloids, and is relatively unique to coal. Use of this surrogate parameter in addition to the more conventional indicators of TSS, sulfate, and O&G would be a much more cost-effective and reasonable approach to determining if coal fines were being discharged in the storm water. Progress Energy requests that the metals and metalloids listed Table I be replaced with the surrogate boron. Mr. Matt Matthews 4 November 10, 2011 Comment 9 Part 11, Section B, Tables 1 and 3 The form of the metal or metalloid is not expressed. The form should be expressed as dissolved where applicable since that is the form of the applicable metal that exhibits possible impacts to receiving waters. Comment 10 Part II, Section B, Table 2 — The requirement to submit a separate Annual Summary DMR seems excessive and adds another tracking and reporting burden to the permittee. Presuming the permittee obtains the two semiannual samples, the annual report is a summary of only two samples. Progress Energy suggests that the semiannual reports be retained at the site with the SWPPP with submission of only the Annual Summary DMR. Cnmment 11 Part II, Section B, Tier One and Tier Two Monitoring These follow-up monitoring provisions are certainly part of the additional burden this proposed permit represents. Also, it seems unreasonable that if the permittee is monitoring against 19 benchmarks and obtains a value that is one microgram or even one-tenth microgram over a benchmark value, the permittee must increase monitoring to monthly for all parameters. These requirements unnecessarily increase the burden and complexity of the permit which appears to be at odds with Senate Bill 781. Comment 12 Part II, Section B, Tier Three Monitoring – This provision provides the Division with authority to require the installation of structural storm water controls, allows an unlimited provision to require "other stormwater control measures" and allows a provision to require the implementation of site modifications to qualify for the No Exposure Exclusion. These provisions are overly vague and broad, essentially giving the DWQ unlimited authority to require unwarranted, non cost-effective structural improvements or other measures. Progress Energy requests these provisions be deleted. Comment 13 Part III, Section A, Item 1. Second and Third paragraphs – The subject facility has been permitted for storm water discharges in previous wastewater permits. This is the first individual permit for storm water. Progress Energy believes this scenario fits into the third paragraph for "existing facilities previously permitted and applying for renewal under this permit". However, if that is the case, the compliance schedule is unrealistic. The draft permit proposes additional provisions to be added to the existing SWPPP that cannot be achieved "prior to the beginning of discharges...". Progress Energy requests the third paragraph be revised to state that modifications to the existing SWPPP be developed and implemented within 12 months, similar to paragraph two Comment 14 Part I 11, Section A, Item 2. Duty to Comply – We suggest that Paragraphs b. and c. be rewritten. According to the Clean Water Act, a person must violate provisions of the Act to be subject to penalties. Additionally it appears that the NCGS referenced in paragraph c. does not provide for the provisions presented. Comment 15 Part III, Section A, Item 8. Duty to Provide Information – There appears to be a syntax issue in line three. Mr. Matt Matthews S November 10, 2011 Comment 16 Part III, Section E, Item 1. Discharge Monitoring Reports — Second paragraph, there is a regulation citation referenced as NCAC T15A. We are unsure of the T15A reference. Comment 17 Part III, Section E, Item 4. Non -Storm water Discharges — Progress Energy does not understand this provision. It states "If the storm event monitored in accordance with this individual permit coincides with a non-stormwater discharge, the permittee shall separately monitor all parameters as required under the non-stormwater discharge permit and provide this information with the stormwater discharge monitoring report." This provision appears to require an additional monitoring of the wastewater discharges when a storm water discharge monitoring event occurs apparently duplicating or increasing the requirements of the wastewater permit. Progress Energy requests this provision be deleted. Comment 18 Part VI, Item 3 The following are non -storm water discharges that are authorized by this individual NPDES permit: uncontaminated groundwater, foundation drains, air -conditioner condensate without added chemicals, springs; discharges of uncontaminated potable water, waterline and fire hydrant flushing, water from footing drains, flows from riparian habitats and wetlands, discharges resulting from fire -fighting or fire -fighting training. The Multi -Sector General Permit for Storm Water Discharges Associated with Industrial Activity (MSGP) issued by the EPA and currently in effect authorizes the discharge of "landscape watering provided all pesticides, herbicides, and fertilizer have been applied in accordance with the approved labeling." In order to (1) address this activity, (2) provide for a permit no more restrictive than the Federal analogue, and (3) address the need for a NPDES permit for use of pesticides/herbicides, Progress Energy requests the permit list the above landscape watering as an activity defined as authorized by this NPDES Stormwater Permit. Comment 19 Part V1, Item 6. — Progress Energy is not familiar with the regulatory or statutory citation for this definition of Bulk Storage of Liquid Products and requests it be provided.