NC0004987_DRAFT Permit Comments_20210315

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 15, 2021
Dr. Sergei Chernikov
North Carolina Department of Environmental Quality
Wastewater Permitting
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Re: Draft NPDES Permit NC0004987
Marshall Steam Station
Dear Dr. Chernikov:
On behalf of the Catawba Riverkeeper Foundation and Waterkeeper Alliance, the
Southern Environmental Law Center submits these comments on the proposed National Pollutant
Discharge Elimination System (NPDES) permit modification for Duke Energy's Marshall Steam
Station, noticed for public comment by the North Carolina Department of Environmental
Quality.
The proposed modification would lock in the weakened and unlawful effluent limitation
guidelines (ELGs) of the Trump Administration. As set out in multiple legal challenges to these
rules,1 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,2 and neither DEQ nor Duke Energy should rely on them
going forward.
1. Add Treatment System Performance Standard and More Effective Monitoring
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
1 Appalachian Voices v. EPA, No. 20-2187 (4th Cir.); Clean Water Action v. Wheeler (D.C. Cir., consolidated with
No. 20-2187).
2 See 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); 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/.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington, DC

March 15, 2021
Page 2 of 5
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 is the appropriate mechanism to demonstrate that the
wastewater treatment system is being operated optimally,3 and the Belews Creek permit
incorporated such a narrative condition setting out numeric standard for selenium that provided a
clear standard for demonstrating treatment system performance.4
We understand that at Marshall 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 (Section A.7 —
Internal Outfall 006) 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 Marshall is 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 supplement it with additional treatment via
ultrafiltration. Most importantly, both systems are designed to achieve compliance with the
more stringent effluent limits of the 2015 ELGs and are capable of doing so. Accordingly, the
same performance standard used at Belews Creek, including the use of quarterly averages to
demonstrate optimization, is appropriate at Marshall.
The Marshall treatment system is capable of achieving the same performance standard as
the one in the Belews Creek permit. Duke Energy has made clear to both DEQ and the N.C.
Utilities Commission Public Staff that the FGD wastewater treatment system at Marshall was
installed to meet the 2015 ELG limits in Duke Energy's prior permit. Duke's 2019 responses to
information requests during the rate recovery cases before the Utilities Commission stated that
the treatment system was needed to "comply with the ELG requirements" (attached as Exhibit 1,
first sheet, row 24). Similarly, Duke's 2018 application to DEQ for a tax exemption certification
said the system was being installed "to meet updated permit limits "5 These statements refer to
the 2015 ELG limits then in place. Plainly, the system can and should comply with those limits.
3 Letter from Michael Lanning, Duke Energy, to Sergei Chernikov, NC DEQ (Oct. 13, 2020) at 1,
https: //edocs. deq.nc. gov/W aterResources/DocView. aspx?id=1347592&dbid=0&repo=WaterResources.
4 Belews Creek NPDES Major Modification, # NC0024406 (March 10, 2021), Condition A(2).
5 Letter from Anne Pifer, Duke Energy, to John Hennessy, NC DEQ (July 19, 2018), at 3,
https: //edocs. deq.nc. gov/WaterResources/DocView. aspx?id=699280&dbid=0&repo=WaterResources.

March 15, 2021
Page 3 of 5
Ratepayers and taxpayers are entitled to the full benefits of the Marshall treatment system
they are paying for. 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 Catawba River, Lake Norman, and their
tributaries 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.
In addition, our understanding is that the Marshall system has been in operation since
March 2019 (per Exhibit 1 and other filings to DEQ6), so there are two years' worth of data on
its performance. Accordingly, the narrative condition above, including the quarterly
performance standard, is appropriate for Marshall.
The monitoring frequency for Internal Outfall 006 should also be increased to weekly for
arsenic, mercury, selenium, and nitrates. The permit requires weekly monitoring for these
constituents at Outfall 002 and should require the same at Outfall 006 to ensure the treatment
system is functioning properly.
2. Add Reopener Clause
DEQ has proposed this modification to incorporate weakened protections against
pollution —even though the Trump administration rule behind this change may not survive
judicial review or agency reconsideration. Given the uncertainty over the rule, it would be
reasonable for DEQ to decline to modify the permit for Marshall until the rule's status is
resolved. But, if DEQ issues this permit, it must include an automatic reopener provision to
ensure the agency can speedily incorporate likely future changes to the rule into the permit for
Marshall.
The Trump EPA finalized its rule weakening the 2015 federal protections against toxic
power plant wastewater on October 13, 2020. Within a few weeks, environmental and
community groups, including North Carolina —based groups, challenged the permit. Appalachian
Voices v. EPA, No. 20-2187 (4th Cir.); Clean Water Action v. Wheeler (D.C. Cir, consolidated
with No. 20-2187).
Under the now -confirmed EPA Administrator Michael Regan, EPA itself 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),
6 E.g., Letter from Rick Roper, Duke Energy, to Jeff Poupart, NC DEQ (Oct. 15, 2019),
https: //edocs. deq.nc. gov/WaterResources/DocView. aspx?id=1008086&dbid=0&repo=WaterResources.

March 15, 2021
Page 4 of 5
https://www.whitehouse. gov/briefing-room/statements-releases/2021 /01 /20/fact-sheet-list-of-
agency-actions-for-review/.
Accordingly, EPA moved for the consolidated challenges to the rule to be held in
abeyance for 90 days while it reviews the rule, noting its inherent authority to "revise, replace, or
repeal" prior actions. Unopposed Mot. for Abeyance, No. 20-2187, ECF No. 52-1, ¶ 7 (Feb. 19,
2021). The Fourth Circuit granted that motion. Order, ECF No. 53.
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. These changes include
allowing Duke Energy to discharge some of its bottom ash transport water, even though the 2014
Coal Ash Management Act required the company to adopt dry handling at all its plants by the
end of 2019. N.C. Gen. Stat. § 130A-309.210(f).
Accordingly, DEQ should not rush to implement a rule that weakens protections against
power plant wastewater, in particular coal ash wastewater, when that rule's status is seriously in
doubt. And at the very least, if DEQ does issue this permit, it must recognize that the rule will
likely change in the near future, and avoid entrenching these weakened Trump ELG standards in
the permit for years to come. To avoid any confusion about Duke Energy's obligation to comply
with all updated standards, DEQ must include an automatic reopener provision to modify the
permit to incorporate changes to the rule made by EPA, and to reflect potential vacatur of the
rule by a court.
DEQ has done this before, when it was the 2015 ELG rule facing review under the
Trump EPA. DEQ put reopener clauses in the Cliffside, Belews Creek, and Allen permits to
accommodate possible changes to the ELG rule —before EPA had even proposed a new rule.
When DEQ finalized the Roxboro permit last year, it also included a reopener. The current
Marshall permit includes language to similar effect, requiring Duke Energy to comply as of
November 1, 2021 with whatever rules were in effect by December 1, 2020. This modification
would apparently fill the gap until then.
If DEQ is willing to include reopener provisions in anticipation of future rule changes
that would allow Duke Energy to pollute more, it must do the same for future rule changes that
could require Duke Energy to pollute less.
The protections established in the 2015 Rule have been delayed for years now, between
industry foot -dragging and Trump EPA rollbacks. Accordingly, it is not enough for DEQ to
accommodate any changes EPA makes under the leadership of Administrator Regan in the next
permit renewal. To protect Lake Norman, the Catawba River, and the communities who live
near and depend on those waters, DEQ must incorporate improved standards into Duke Energy's
permit as soon as possible.

March 15, 2021
Page 5 of 5
3. Require treatment technology -based 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
physical -chemical treatment, if necessary, to assure state Water Quality Standards are not
contravened in the receiving stream."
Tying the treatment obligation to state water quality standards in the receiving water is
contrary to the Clean Water Act. 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 water resources around Marshall, including Lake
Norman, unprotected by measurable, 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 Marshall. 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 Marshall 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,
Nicholas S. Torrey
Senior Attorney
Leslie Griffith
Staff Attorney
cc: Bill Lane
Francisco Benzoni