NC0003425_Comments_20210625 (2)

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
Via e-mail
601 WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
April 15, 2021
Sergei Chernikov
North Carolina Department of Environmental Quality
Wastewater Permitting
Attn: Roxboro
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Re: Draft NPDES Permit NC0003425
Roxboro Steam Station
Dear Dr. Chernikov:
On behalf of the Roanoke River Basin Association, the Southern Environmental Law
Center ("SELC") submits these comments on the proposed National Pollutant Discharge
Elimination System ("NPDES") permit modification for Duke Energy's Roxboro Steam Station,
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
is reviewing the Trump ELGs, and neither DEQ nor Duke Energy should rely on them going
forward.
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.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC

April 15, 2021
Page 2 of 3
We understand that at Roxboro 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 Outfalls
0010 & 0011 - Sections A.9 and A.10) 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. The system at Roxboro uses the same basic biological treatment technology and is
capable of complying with the 2015 ELGs. Accordingly, the same performance standard used at
Belews Creek is appropriate at Roxboro 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 Hyco Lake 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
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. And, should the rule change as part of EPA actions or
judicial review, NCDEQ should waste no time in modifying the permit to incorporate those
improvements.
2. Require technology -based effluent limits for Outfall 002
Section A.2 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

April 15, 2021
Page 3 of 3
physical -chemical treatment, if necessary, to assure state Water Quality Standards are not
contravened in the receiving stream." Section A.3 says the same for dewatering.
This qualified obligation to treat ash pond water during closure makes no sense for
current operations at Roxboro, and should be converted to a clear requirement to treat all
dewatering water with physical chemical treatment.
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 Hyco Lake 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 Roxboro. 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).
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 Roxboro 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