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HomeMy WebLinkAboutNC0004987_DRAFT Permit Comments_20210315SOUTHERN ENVIRONMENTAL LAW CENTER Telephone 919-967-1450 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 publiccomments@ncdenr.gov 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