20060638 Ver 5_Emails_20150521

Higgins, Karen
From: Bowers, Todd <bowers.todd@epagov>
Sent: Thursday, May Zl'ZUl5l:ZZPK4
To: Higgins, Karen
Subject: Coal Ash pond seep questions/answers
Karen,
Here is a compilation of responses I have gotten here in my office between regulatory, legal counsel and enforcement
folks concerning the Duke Ash Pond seep along the Neuse River. It seems Mike Wylie with our 404 enforcement team
has encountered this situation already so his response may be most useful (in red below). | hope these responses are
helpful. Thanks for the call!
Best Regards,
Todd Bowers
|nberesbngquesbon. |tispossi&|e for a ditch to&e both point source su&]ectto NPDESanda VVoUSsu&]ectto
4O4(1psst,|'veha(J atty/sbeUnneso Just recent|y). Asa|eays, whether or riot a ditch iscovered&y one orboth
provisions of the Actdelpendson the situation. |eou|d argue though that anuncontroUedseelpage zone is riot a
easteeaberconveyance and eou|d not be an eoc|ude(J (ie. Non'JD)feature un|essthe NPDESconnlp|iance point
was doenstreannat the point where the seelpage enters the river.
in your clase, i arn picIturing seelpage zones at the toe of an ernbankirnent, an(J maybe those seelpage zones then
coa|escetofornnasing|edefinedchanneLsea|eoreet|and that flows to the nearest river. |f the [orpshas
nnadeaJDcaUonthesefeatures,theniteou|dseenntonnethatDukeneedsa4O4pernnittofUthennor
otherwise construct a waste treatnnentfaci|ity in thenn. Once thatfaci|ity is constructed, however, the faci|ity
itse|feou|dno|onger&eaVVoUS, but any dischargefronniteou|dneedaNPDESpermit. |f Duke cancorrect
theirseelpagepro&|enn&yeorkingintheinn1poundnnentoronthedann,then|ike|yno4O4pernniteou|d&e
neclessary. (Eric, Sornervfl1e, 404 Reg.)
Not exact|y the same situ atonbutinSCwe had a case vvheneastormwaterimpoundment was p|acedin
up|andsandtheoverf|ovvdeve|opedinbza|inearfeatunevvithvegetation,bed,andbanksotheCorpscaUedit
Jurisdictionai Ourattorneystookthe position that "butfor° the stormvvatertneatmentthe feature vvou|dn't be
thene, therefore itvvou|dn'tbe]urisdictionai Theapp|icantdidn't fight the Corps determinationso|assume
they vviUbegettingapermitandmitigating but vvedisagneed with it.
4|so]ustanotherthought|fthedeterminationismadethatitisindeedaVVateroftheU.S.cou|dn't Duke use
NW["' 38 (deainup of hazairdous waste) to fix the eaks? Geinei4k/ that is expected to iiinpirove the iiinpacted water
so|itt|eornomitigationis required. (0eUyLaycock, 404 Reg.)
Here isastnetch—jf the seep water cou|dbecharacterizedas"Return Water fromUp|and(.,ontainedDisposa|
Areas" then NVVP 16 may app|y a|ong with the NVVPgene4| conditions. NVVPGenerA [ondition#21Water
CLu4|ity requires 4O1 VVCL(.'ertifiostion or there may be required addition4| water qu4|ity management measures
to ensure that the activity does not resu|t in more than minim4| degradation of water qu4|ity. (Dunosn PovveU,
404 Reg.)
Hey Todd: Molly knew that I was working on this issue with Kari and Matt Hicks and
forwarded me your email.

• Denisse Diaz did send Mr. Biddlecome an email but it was not a request to issue a NWP 38. Instead, it was a
statement that we thought the project purpose (i.e., to install a capture and re -route system) would bring Duke
into CWA compliance with respect to those seeps. According to Duke, the language Denisse sent was insufficient
and the Corps has declined to issue a NWP 38. Duke is now attempting to get individual permit coverage for the
work at that facility. (Matt Hicks, attorney)
Todd Allen Bowers
Wetlands Regulatory Project Manager - NC
Region 4 Water Protection Division
US Environmental Protection Agency
61 Forsyth St. SW
Atlanta, GA 30303
404.562.9225 office
404.562.9343 fax
bowers.fodd @epa.gov
www.epa._ oq v /region4 /wafer /weflands
"A thing is right if it tends to preserve the beauty, integrity and stability of the biotic community; it is wrong
when it tends otherwise."
Aldo Leopold, "The Land Ethic," A Sand County Almanac
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