NC0001422_Classification of Sutton Lake_20141105

NCDENR
North Carolina Department of Environment and Natural Resources
Pat McCrory John E. Skvarla, III
Governor Secretary
November 5, 2014 RECEIVED /DEN /DWR
CERTIFIED MAIL 7002 0860 0006 5836 0335 HIV I
RETURN RECEIPT REt7UESTED 9 2014
Harry Sideris Water Quamy
Senior Vice President, Environmental, Health, and Safety Pel"i!Iting n
Duke Energy
526 S Church St -EC11J
Charlotte, NC 28202
Subject: Classification of Sutton Lake as Waters of the State
Duke Energy — Sutton Steam Electric Plant NC0001422 New Hanover County
Dear Mr. Sideris,
The Division is hereby informing you that Sutton Lake will now be considered "waters" of the State as defined
in North Carolina General Statute § 143 - 212(6). Your current permit, which was issued December of 2011, did
not identify Sutton Lake as a "waters" of the State and therefore the discharge point listed on your permit, and
associated monitoring, was the outfall to the Cape Fear River rather than to Sutton Lake. Consequently, this
determination will require a revision to your NPDES Permit for the Sutton Steam Electric Plant (NC0001422).
I recognize that this determination is a departure from prior determinations made by DENR. As noted above,
your NPDES permit for this facility was renewed in December of 2011. It is clear from the record of that
decision that DENR considered the question of whether Sutton Lake should be considered as "waters" of the
State. I have enclosed correspondence dated January 24 -26, 2011, in which the decision was discussed. After
concluding in 2011 that Sutton Lake was not "waters" of the State, a draft permit was sent to the federal
Environmental Protection Agency (EPA) for their review and the same draft permit was also made available
for public review and comment. No public comments were received. EPA did review and provide comments
but did not comment on the decision to identify the discharge points to be limited to the outfall into the Cape
Fear River. Hence, DENR recognizes that this decisional process is critical in qualifying your facility for
permit shield protection under Section 402(k) of the Clean Water Act.
DENR understands that this decision, because it is a departure from prior DENR determinations, necessitates a
revision to your wastewater NPDES permit as well as other permits and authorizations related to this facility.
You are hereby given your 60 -day notice of this requirement pursuant to North Carolina Administrative Code
(NCAC) 15A 2H .0112(b)(3).
If you have any questions please do not hesitate to contact me at (919) 707 -9027, or via e-mail at
[e-mail].
Sincer
Thomas e er
Direct , Division of Water Resources
cc: EPA Region IV, Mark Nuhfer
NPDES Permit File
Central Files
1611 Mail Service Center, Raleigh, North Carolina 27699 -1611
Phone: 919 - 707 -90001 Internet: www.ncwater.org

r
From: "Willis, Linda" <Iinda.willisPncdenr.Pov>
Date: Wednesday, January 26, 2011 8:S9 AM
To: "Matthews, Matt" <matt.matthewsPncdenr.izov >, "Bennett, Bradley" <bradlev.bennett(@ncdenr.Rov>, "Scott,
Georgette" <[e-mail] >, "Lewis,Linda" <linda.lewisPncdenr.sov >, Jeff Poupart
<ieff.Dour)art (cDncdenr.Rov>
Subject: FW: PE Cooling Pond and SA regs
From: Cooper, Kathy jmailto:kcoor)er(alncdoi.4ovj
Sent: Tuesday, January 25, 2011 5:24 PM
To: Willis, Linda
Cc: Shiver, Rick
Subject: RE: PE Cooling Pond and SA regs
Linda,
Based on my review of the statute and rules, I think a cooling pond as you described Sutton Lake is waters of the
State. However, if other sections within DWQ don't consider it to be waters of the State, we need to know why before I
give you a definitive opinion since there may be a policy reason why DWQ has not historically considered cooling ponds
waters of the State.
That's why I asked that you check with Matt since he's over the surface water program.
Kathy
6alhgii Jones Cooper
Special Deputr Atlornev General
Water and Land Seclion
Ennirounienlal Diti,ision
North Carolina Department of,luslice
Post Office Box 639
Raleigh, NC 27603 -0619
('919) 716 -6600 (wain telephone numher)
(919) 716 -6960 (direel dial)
(919) 716 -6766 (ftcr)
kcoaneawedol.Yo1,
From: Willis, Linda jmailto :linda.willls(cbncdenr,ctov1
Sent: Tuesday, January 25, 20114:28 PM
To: Cooper, Kathy
Subject: RE: PE Cooling Pond and SA regs
Kathy,

This is going to be a very contentious issue. Rick has advised me that Progress Energy is willing to get their lawyers
involved to fight any potential classification of Lake Sutton. Regardless of the definition of waters of the State. I don't
know that we have a policy on why we (DWQ) never classified the Lake properly back in 1971, when the easement
agreement was given, maybe because that was before the EPA required us to classify our surface waters. When we
could have, I'm not sure why we didn't. Rick tells me if it isn't classified already, we probably wouldn't fight for it to be
classified. Matt has not been involved yet because all we were trying to do was answer the question for State
Stormwater Unit here in Wilmington, was Sutton Lake waters of the State or not. I thought we had the answer after
visiting with you on Friday. Sergei then told me that he did not permit the discharges to Lake Sutton based on the Lake
being waters of the State. PE did not like the answer because they will have to treat their stormwater for their new
plant before discharging to Sutton Lake and they are opposed to having to provide any treatment whatsoever.
Linda
From: Cooper, Kathy fmailto:kccoPeN ' o ncdoi.aovl
Sent: Monday, January 24, 20114:39 PM
To: Willis, Linda
Subject: RE: PE Cooling Pond and SA regs
Linda,
Have you also spoken to Matt Matthews or others higher up DWQ about these issues and the division's policy?
Kathy
Karhr)•n Jones C'uoper
Special Depugp.-Ulornei' General
Hater and Land Section
Environmental Division
:Forth Carolina Departrnrew of Justice
Post Office Box 619
Raleigh, NC 2 7602-062 9
(919) 716 -6600 (mahr telephone number)
(919) 716 -6960 (direct dial)
(919) 716 -6766 oLv)
kcoone ancdol.eov
From: Willis, Linda fmailto :linda.willisCcbncdenr.govl
Sent: Monday, January 24, 20114:09 PM
To: Cooper, Kathy
Subject: PE Cooling Pond and SA regs
Kathy,
Would it be possible to email me a brief synopsis on the status of the cooling pond (Sutton Lake) based on your review
of the definition and PE's easement agreement? Serge! and I had spoke concerning how he permitted discharges to the
Cooling Pond, he rechecked the permit limitations and found he had not considered the cooling pond "waters of the
State ". We (DWQ) have discovered recently that the PNA waters in our region have not been appropriately classified as
"HQW" as required in our 2B regs. As a result, many of our NPDES permits allowing discharges to portions of the Cape
Fear River do not reflect the appropriate limits where TSS is concerned, unless they have the technology in place now to
meet a tighter limit. The permitting unit has decided that they will not reopen nor change any permits to impose the
appropriate limits unless the permittee requests an expansion. We will, however, correct the permits to reflect the
appropriate classification of "PNA /HQW ", even though we don't impose the more stringent limitations. I don't see why
this same approach would not be exercised in this case too.

If you could comment also, briefly, on your take of the wq Standard specified in the SA regs "no settleable solids, floating
solids or sludge deposits ", that would be quite helpful for me to have in hand for some upcoming meetings with the
Washington Regional office.
Thanks again for your help Kathy.
Linda

UNITED STATES POSTAL SERVICE
First -Class Mail
Postage & Fees Paid
LISPS
Permit No. G -10
• Sender: Please print your name, address, and ZIP +4 in this box •
r

• Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse
so that we can return the card to you.
• Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Article Addressed to:
5Z�yr� 5� _Celli
/off, Nc 29202
A. Signature
,DAMES CHAPMAI //f Addressee
B. Received by ( Printed Name) I C.( DIf ate qt D�ivery
D. Is delivery address different from item 1? ❑QpYles
If YES, enter delivery address below: ❑ No
3. Service Type
Certified Mail ❑ Express Mail
❑ Registered Q Return Receipt for Merchandise
❑ Insured Mail ❑ C.O.D.
4. Restricted Delivery? (Extra Fee) ❑ Yes '
2. Article Number
(Transfer from service label) 7002 0860 0006 5836 0335
PS Form 3811, August 2001 Domestic Return Receipt 102595 -02 -M -1540