NC0005088_Correspondence_20210618 (3)

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
VIA E-MAIL
601 WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
March 29, 2021
Sergei Chernikov
North Carolina Department of Environmental Quality
Wastewater Permitting
Attn: Rogers
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Re: Draft NPDES Permit NC0005088
Rogers Energy Complex
Dear Dr. Chernikov:
On behalf of the Broad Riverkeeper and MountainTrue, the Southern Environmental Law
Center ("SELC") submits these comments on the proposed National Pollutant Discharge
Elimination System ("NPDES") permit modification for Duke Energy's Rogers Energy Complex
("Cliffside"), noticed for public comment by the North Carolina Department of Environmental
Quality.
The proposed modification rushes to put in place the weakened and unlawful effluent
limitation guidelines ("ELGs") of the Trump Administration, while further pushing back Duke
Energy's obligation to comply with any limitations at all on toxic pollutants. As set out in
multiple legal challenges to these rules, the Trump ELGs directly contradict the most central
requirements of the Clean Water Act by basing coal-fired power plant wastewater pollution
limits not on the Best Available Technology —as required by the Act —but rather on the
performance of average or poorly -performing treatment technologies. The Biden Administration
has already announced its intention to review the Trump ELGs, and neither DEQ nor Duke
Energy should rely on them going forward.
Moreover, in this modification DEQ proposes to reverse its previous determination that
Duke Energy can comply with FGD wastewater limits by the end of this year and grant another
six months to comply. This delay is unjustified. Duke Energy has known it needed to install
biological treatment at Cliffside for almost six years. Rather than repeatedly seeking the latest
possible deadline for compliance, Duke Energy should have planned to comply as quickly as
possible. Additionally, Duke Energy's insistence that it must "optimize" the treatment system to
meet permit limits falls flat when Duke Energy also seeks to weaken those limits —providing
ample margin of error for the treatment system.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC

March 29, 2021
Page 2 of 5
1. Add Treatment System Performance Standard
The Trump Administration's push to weaken the 2015 ELGs before they even took effect
has resulted in an absurd situation at Duke Energy's power plants in North Carolina: these
facilities have treatment technology already installed that was designed to meet the more
stringent pollutant limits of the 2015 ELGs, but DEQ's permits would apply the far less
protective numeric limits of the unlawful Trump ELGs.
In light of the fact that Duke Energy's actual wastewater treatment capabilities are greater
than the current ELG limits, Duke acknowledged in its NDPES modification application for
Belews Creek that a narrative condition setting out numeric standards is the appropriate
mechanism to demonstrate that the wastewater treatment system is being operated optimally.
We understand that at Cliffside as well, Duke Energy intends to operate its treatment
system optimally and demonstrate proper operation via compliance with numeric limits in a
narrative condition. Accordingly, DEQ should add a condition to the permit (Internal Outfall
006 - Section A.7) stating:
The permittee will operate the FGD wastewater system until all coal-fired
generation units at the site are retired. Performance of the FGD wastewater
treatment system shall be optimized to maximize pollutant reduction and
minimize variability. For the purposes of this requirement, optimization will be
demonstrated by quarterly averages at or below 12 ug/L for Total Selenium.
This mirrors the language used in the Belews Creek modification recently issued by
DEQ. While one of the treatment technologies at Cliffside is slightly different than at Belews
Creek —a low -residence time bioreactor vs. a high -residence time bioreactor—both systems use
the same basic biological treatment technology. And most importantly, both systems are
designed for compliance with the effluent limits of the 2015 ELGs and are capable of doing so.
Indeed, Duke Energy began construction on the Cliffside FGD treatment system while the 2015
ELGs were still in place. Duke Energy Modification Request (Jan. 8, 2021) (indicating company
expedited construction schedule in 2018). Accordingly, the same performance standard used at
Belews Creek is appropriate at Cliffside to demonstrate optimal operation.
Without a provision in the permit that specifies performance standards for optimal
operation, the public has no assurance that Duke Energy is operating the system to its full
capacity and protecting the water resources of the Broad River to the full extent of the treatment
system's capabilities. The public deserves a clear standard that holds Duke Energy accountable
for going beyond the lax Trump ELGs in operating its FGD treatment system.
We are pleased to see that DEQ has included a reopener provision in this permit to
incorporate likely further changes to the ELG Rule. Under the now -confirmed EPA
Administrator Michael Regan, EPA is reviewing the rule. On President Biden's first day in
office, he issued an executive order directing federal agencies to review agency actions taken
during the Trump administration that could be contrary to the national policies of combating
climate change and protecting public health and the environment. Exec. Order 13,990, Executive

March 29, 2021
Page 3 of 5
Order on Protecting Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis, 86 Fed. Reg. 7037 (Jan. 20, 2021). The Trump Administration's 2020 ELG Rule
is among those specific rules the White House directed EPA to review. Fact Sheet: List of
Agency Actions for Review (Jan. 20, 2021), https://www.whitehouse.gov/briefing-
room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/. The Trump
rule, therefore, may well be vacated by the court or changed or undone by EPA itself. Potential
changes to the rule could affect the changes to the limitations for bottom ash transport water and
FGD wastewater that Duke Energy seeks.
A reopener provision like this should be in any permit NCDEQ modifies for Duke
Energy coal-fired power plants this year to make clear that the agency can and will make
changes as needed if the Biden EPA undoes the errors of the Trump Administration and
strengthens the protections in the rule.
In the case of Cliffside, moreover, it is not clear why DEQ should issue this modification
at all right now. Even under the current permit, Duke Energy is not obligated to comply with the
technology -based effluent limitations on toxic pollutants from FGD wastewater until the end of
2021. Because EPA may announce plans or steps for additional rulemaking in the months to
come, it would be more efficient for Duke Energy to retain its current permit for several months
before seeking a modification if one is still needed. Rushing to modify now could simply
increase the burden on the agency by requiring a second modification later if and when the
applicable federal standards change.
2. Reject Compliance Deadline Extension
If DEQ fmalizes this permit modification, it should eliminate the proposed extension of
the compliance deadline for FGD wastewater. Duke Energy has repeatedly sought the longest
possible time to these protections against one of the most toxic power plant wastestreams. When
the agency renewed the Cliffside permit in 2018, it rejected Duke Energy's desired schedule and
imposed a compliance deadline of December 31, 2021. Duke Energy did not challenge that
permit.
Just last year, Duke Energy again sought an extension, this time basing it on the mere
existence of a proposed rule revision from the Trump EPA. See Draft Permit Modification (Mar.
30, 2020). The Department appropriately never issued that modification.
Now Duke Energy offers a different rationale for delaying compliance —the need to
optimize the system. Fact Sheet; see also Modification Request (Jan. 8, 2021). DEQ should
again refuse this request for delay.
First, even accepting Duke Energy's suggestion that they require six months to
commission the system, a six-month delay is unwarranted because construction is expected to
finish in July. See Modification Request.
Second, in this same modification, Duke Energy has requested and the agency intends to
grant a significant weakening of the limits for toxic pollutions, particularly of selenium. EPA

March 29, 2021
Page 4 of 5
has insisted that these weaker limits are important to allow for the increased variability of LRTR
biological treatment systems. Steam Electric Reconsideration Rule, 85 Fed. Reg. 64,662
(October 27, 2020). We understand that Duke Energy intends to operate its system optimally
even under the weakened limits from the 2020 ELG Rule. Even if it indeed takes multiple
months to start up and optimize the system, then Duke Energy should have no trouble complying
with those weaker limits by the end of the year. Slower implementation of weaker limits only
compounds the problem.
3. Increase Monitoring
Additionally, this modification should require weekly monitoring at Outfall 005 for
normal operations, not just during dewatering. Because of the toxicity of the FGD wastestream
that is routed through this outfall, and the recent implementation of the treatment system,
sampling should be weekly.
4. Require treatment technology -based limits for Outfall 002
Section A.1 of the draft permit states, "When the facility commences the ash pond/ponds
decanting, the facility shall treat the wastewater discharged from the ash pond/ponds using
physical -chemical treatment, if necessary, to assure state Water Quality Standards are not
contravened in the receiving stream." Section A.2 says the same for dewatering.
This qualified obligation to treat ash pond water during closure makes no sense for
current operations at Cliffside, and should be converted to a clear requirement to treat all
dewatering water with physical chemical treatment. In a letter to DEQ last year, Duke Energy
stated that the wastewater treatment system is working well, and that Duke Energy intends to
send all the decanting and dewatering wastewater through the system before discharge. Letter
from David Barnhardt, Duke Energy, to Sergei Chernikov, DEQ (May 21, 2020). Why not, then,
state clearly in the permit that Duke Energy must do what it already says it can do?
Instead, this permit, like others throughout the Duke Energy fleet, unlawfully ties the
treatment obligation to state water quality standards in the receiving water. The permit should
require treatment and impose the corresponding numeric technology -based effluent limits that
reflect the best available treatment technology. See 33 U.S.C. § 1311(b)(2)(A). This would, at a
minimum, require applying numeric effluent limits that reflect the pollution reduction the
physical -chemical treatment can achieve. The failure to do so leaves the Broad River without
enforceable limits that will ensure consistent pollution control.
The Clean Water Act requires that polluters use the best available technology
economically achievable (BAT) to control and ideally eliminate their discharge of pollutants. 33
U.S.C. § 1311(b)(2)(A). For wastestreams that lack promulgated effluent limitation guidelines,
the NPDES permit writer must use best professional judgment ("BPJ") to determine the BAT
standard applicable at Cliffside. 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3; 15A N.C.
Admin. Code 2H .0118. When applying BPJ, "[i]ndividual judgments []take the place of
uniform national guidelines, but the technology -based standard remains the same." Texas Oil &
Gas Ass'n v. EPA, 161 F.3d 923, 929 (5th Cir. 1998).

March 29, 2021
Page 5 of 5
Physical -chemical treatment technology is undeniably available. At a minimum,
therefore, the Clean Water Act requires that DEQ set technology -based effluent limitations for
the wastewater discharges at Cliffside based on the ability of the physical -chemical treatment
system to remove pollutants, not on the ability of the receiving waterbody to absorb them.
Thank you for your consideration of these comments.
Sincerely,
Leslie Griffith
Staff Attorney
cc: Bill Lane
Francisco Benzoni