NC0024406_Comments on Draft Permit_20161118

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
VIA EMAIL AND U.S. MAIL
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NC 27516-2356
November 15, 2016
Mr. S. Jay Zimmerman, Acting Director
DENR Division of Water Resources
Attn. Belews WW Permit
1617 Mail Service Center
Raleigh, N.C., 27699-1617
[e-mail]
[e-mail]
Facsimile 919-929-9421
Re: Draft NPDES Wastewater Permit — Belews Creek Steam Station,
#NC0024406
Dear Mr. Zimmerman:
On behalf of Appalachian Voices, the Southern Environmental Law Center submits the
following comments on the draft National Pollutant Discharge Elimination System ("NPDES")
permit noticed for public comment by the North Carolina Department of Environmental Quality
("DEQ "), Division of Water Resources ("DWR"), which purports for the first time to allow
Duke Energy Carolinas LLC ("Duke Energy") to discharge increased and in many cases
unlimited pollution into the Dan River, Belews Lake, and other waters of North Carolina and the
United States.
As set forth below, the proposed permit violates the Clean Water Act ("CWA") because,
among other things: it allows unlimited, toxic pollution of the Dan River and Belews Lake; it
authorizes a wastewater treatment facility to malfunction and leak wastewater; it illegally turns
North Carolina streams into wastewater ditches with no clean water protections; it puts in place
excessive and ineffective limits for many toxic pollutants; and it reduces substantially clean
water protections that have been contained in NPDES permits for the Belews Creek facility for
decades.
This proposed permit tries to allow Duke Energy to dump the water" out of its Belews
Creek coal ash lagoon into the Dan River and Belews Lake without any protections for toxic
substances; to legalize Duke Energy's longstanding violations of the Clean Water Act and North
Carolina law which DEQ has allowed to continue without taking effective enforcement action;
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville * Richmond • Washington, DC
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and to allow Duke Energy leave its coal ash in an unlined pit which will pollute Stokes County
for decades to come.
I. Introduction
Duke Energy stores approximately 12 million tons of coal ash in an unlined pit that
discharges into the Dan River, and sits on the banks of Belews Lake and on top of Little Belews
Creek. This coal ash extends down 65 feet deep, sitting and leaching in the groundwater that
flows through the basin. The coal ash lagoon is over 40 years old, and its waters are held back
only bya,dike made of earth that leaks. The coal ash lagoon is authorized to discharge
wastewater,from the lagoon only through a single outfall that empties directly into the Dan
River.
The Dan River has already suffered significant contamination from Duke Energy's
mismanagement of coal ash. The coal ash catastrophe at the Dan River Site dumped over 20
million gallons of wastewater and 39,000 tons of coal ash into this River. Bromide from Duke
Energy's coal ash caused carcinogens to enter drinking water systems downstream of the Belews
Creek plant in the towns of Eden and Madison along the Dan River. Contaminants associated
with coal ash—including thallium, lead, aluminum, and copper—exceed water quality standards
in the Dan River immediately downstream of the Belews Creek coal ash site.
Belews Lake is an important water, recreational, fishing, and economic resource for
North Carolina, the region, and Stokes County. Families live along the lake. Local residents,
people who live in surrounding communities, and visitors from other areas fish, swim, and boat
in and on the lake. Over the years, Belews Lake has been seriously harmed by the pollution from
Duke Energy's coal ash lagoon. In 2007, EPA classified Belews Lake a "proven ecological
damage case" due to selenium poisoning from leaking coal ash pits at the Belews Creek plant. I
Selenium contamination from the coal ash pits ultimately eliminated 19 of the 20 fish species
present in Belews Lake.2 Selenium bio -accumulates and persists in the environment, and birds
that feed in Belews Lake continue to experience adverse effects from selenium poisoning.'
On August 16, 2013, DEQ filed a verified complaint with the Mecklenburg County
Superior Court which set out that Duke Energy had intentionally constructed engineered
discharges from the Belews Creek coal ash lagoon that discharge into Little Belews Creek and
the Dan River. These engineered discharges are not authorized under the Belews Creek NPDES
permit and, in fact, are expressly forbidden. Thus, Duke Energy was and is openly and
intentionally violating a clear provision of its Belews Creek NPDES permit by polluting the Dan
River with coal ash polluted water.
'Attachment 1, USEPA Office of Solid Waste, Coal Combustion Waste Damage Case Assessments 25 (July 9,
2007).
2 Attachment 2, Rachel Cernansky, National Geographic News, Largest U.S. Coal Ash Pond to Close, But Future
Rules Still Undecided (Aug. 9, 2012), available at
http://news.nationalgeographic.com/news/energy/2012/08/ 120809 -little -blue -run -coal -ash -pond -to -close.
3 Attachment 3, Barbara Gottlieb et al., Physicians for Social Responsibility and Earthjustice, Coal Ash: The Toxic
Threat to Our Health and Environment, 12 (Sept. 2010).
P)

DEQ stated—under oath—that Duke Energy's unpermitted engineered discharges at
Belews Creek violate state law and that "without ... taking corrective action," these seeps
"pose[] a serious danger to the health, safety and welfare of the people of the State of North
Carolina and serious harm to the water resources of the State."4 As a result, DEQ asked the
court to enter a permanent injunction requiring Duke "to abate the violations of N.C. Gen. Stat. §
143-215.1, [and] NPDES Permits" at Belews Creek.5 Since filing this complaint, however, DEQ
has done nothing to require Duke Energy to stop violating the law and its permit at Belews
Creek.
Further, it has been discovered that Duke Energy's Belews Creek coal ash lagoon has
other leaks that are also illegally flowing into the Dan River and Belews Lake.
, Rather than following through on its sworn statements and publicly -announced intention
to obtain injunctive relief and corrective action, DEQ's draft permit proposes to paper over the
numerous leaks emerging from Duke Energy's coal ash wastewater treatment lagoon.
Duke Energy has faced extensive public pressure and litigation by Appalachian Voices
and other' community organizations in North Carolina to force Duke Energy to address its
primitive unlined and leaking coal ash storage in North Carolina. In May of 2015, Duke Energy
operating companies, including the owner of the Belews Creek coal ash lagoon, pleaded guilty
18 times to 9 coal ash crimes across North Carolina. These crimes included unpermitted coal ash
lagoon discharges very much like those flowing from the Belews Creek coal ash lagoon. Duke
Energy operating companies paid a $102 million fine, and they are under nationwide criminal
probation. Under court orders, the criminal plea agreement, statutes, regulatory requirements,
and settlement agreements with conservation groups, Duke Energy is now required to excavate
all the coal ash from unlined coal ash pits at 8 of its 14 coal ash storage sites in North Carolina,
and all its sites in South Carolina. In addition, in response to this intense public and legal
pressure and stronger regulatory requirements, Duke Energy has announced that it will empty the
water from all its coal ash lagoons in North Carolina.
However, at Belews Creek and five other coal ash storage sites in North Carolina, Duke
Energy has refused to commit itself to remove the ash from its unlined, leaking, polluting,
dangerous, and primitive coal ash pits. Instead, Duke Energy hopes to be able to pump the coal
ash polluted water out of its leaking lagoons into nearby lakes and rivers and then leave its
polluting coal ash in the groundwater in unlined pits near waterbodies where the coal ash will
continue to pollute the state's waters forever.
Duke Energy cannot leave its polluting coal ash in place at Belews Creek under the terms
of its existing NPDES permit. The Belews Creek coal ash pit leaks, and it pollutes the Dan River
and Belews Lake—all in open violation of the Clean Water Act and the NPDES permit.
a Attachment 4, Verified Complaint & Motion for Injunctive Relief, State of North Carolina ex rel. N. C. DENR,
DWQ v. Duke Energy Progress, LLC, No. 13 CVS 14661 (Mecklenburg Co., Aug. 16, 2013), at 1197.
51d. Prayer for Relief 12.

DEQ has allowed this illegal pollution to continue without taking any effective action to
stop it. Instead, DEQ now proposes to change Duke Energy's NPDES permit to legalize coal ash
pollution that has been illegal for decades.
This proposed permit fails to protect the public and public waters and violates the Clean
Water Act. DEQ should require that Duke adopt the best available technology to treat the coal
ash polluted water before it is dumped into the Dan River, as DEQ has required at other coal ash
sites in Wilmington and Charlotte; should require Duke Energy to stop the leaks and discharges
of polluted wastewater; and should require Duke Energy remove the coal ash and wastewater
from the lagoon, with adequate protections of the Dan River and Belews Lake.
II. Permit Comments
A. The Proposed Permit Violates the Clean Water Act Because It Does Not Protect the
Dan River As Water Is Emptied Out Of the Ash Basin.
DEQ proposes to allow Duke Energy to pump all its coal ash polluted water from the
Belews Creek coal ash lagoon into the Dan River.6 Millions of gallons of coal ash polluted
water that have been sitting in the ash basin for untold years will be pumped into the Dan River
during the so-called "decanting" phase, over a period of weeks or months.7 Yet the proposed
permit provides no limits at all during decanting to control pollution from arsenic, selenium,
bromide, mercury, chromium, zinc, barium, antimony, or boron.8
All of these pollutants are known to be part of coal ash, and past releases of these
pollutants at Belews Creek have caused serious harm to surrounding waters. Bromide from
Duke Energy's coal ash has mixed in downstream drinking water intakes in the towns of
Madison and Eden, forming cancer-causing agents known as trihalomethanes.9 Selenium
discharges from the Belews Creek ash basin wiped out 19 of the 20 fish species once present in
Belews Lake. 10 Arsenic, a toxic carcinogen, has been found at levels more than ten times the
safety standard in residential drinking wells near Belews Creek. 11
Yet DEQ's proposed permit for Belews Creek allows Duke Energy to escape any limits
for all of these known contaminants as it pumps millions of gallons of water into the Dan River.
In fact, Duke is not even required to monitor for some of these pollutants as it pumps the coal ash
6 Belews Creek Draft NPDES Permit at 5-8, Part I, Sections A. (3.) & (4.).
Belews Creek Draft NPDES Permit at 5, Part I., Section A. (3.).
81d.
9 Attachment 5, Bertrand Gutierrez, Discharge from Belews Creek Power Plant Affects Water Quality, Winston-
Salem Journal (Apr. 13, 2014), http://www.joumalnow.com/news/local/discharge-from-belews-creek-power-plant-
affects-water-quality/article_8e6f8202-a305-580d-a3 89-d96da37d5629.html.
10
Attachment 2, Rachel Cernansky, National Geographic News, Largest U.S. Coal Ash Pond to Close, But Future
Rules Still Undecided (Aug. 9, 2012), available at
http://news.nationalgeographic.com/news/energy/2012/08/ 120809 -little -blue -run -coal -ash -pond -to -close.
11 Attachment 6, DEQ, Comprehensive and Ongoing Groundwater Results from Duke, available at
http://edocs.deq.nc.gov/WaterResources/Browse.aspx?startid=221202&dbid=0 (Sept. 15, 2016).
2

water out. 12 As a result, this proposed permit abandons the Dan River to unlimited toxic
pollution by Duke Energy and its coal ash polluted water.
In contrast, permits for other Duke Energy coal ash sites have limits for these dangerous
pollutants during the decanting phase. For example, the final permits for Duke Energy's
Riverbend and Sutton facilities provide common-sense limits to protect people from unsafe
levels of arsenic, selenium, and mercury as the water is pumped out of these ash basins. 13 The
people living around and downstream of Belews Creek deserve the same protections as the
communities near the Riverbend plant in Charlotte and the Sutton plant in Wilmington. Yet
DEQ has taken a much more permissive approach at Belews Creek, allowing Duke Energy to
discharge these pollutants without limit.
In addition, what few limits are required at Belews Creek during decanting will be
difficult to enforce, because Duke Energy is only required to monitor once a month for most of
these pollutants. 14 Duke Energy could therefore strategically stagger its sampling to avoid the
times when it is releasing the greatest amount of contamination, and might not even have to
sample at all while it is pumping the water out of the basin.
Similar fatal defects are present in the section of the permit governing the "dewatering"
of the ash, which is the phase that follows decanting and involves removing the "interstitial
water"—the most heavily polluted water that is mixed in with the ash or in direct contact with
the ash. 15 Yet as with the decanting phase, DEQ once again places no limits on the amount of
contamination that can be released during dewatering for the vast majority of dangerous
pollutants, including arsenic, bromide, mercury, chromium, zinc, barium, antimony, and boron.'
6
There is a limit for selenium during the dewatering phase, unlike the decanting phase, but
that daily limit for selenium is over 4,700% higher than the limits that DEQ has found to be
achievable for other Duke Energy coal ash sites, like the Riverbend site, during dewatering.
In other words, this permit would allow Duke Energy to pump the most toxic and most
polluted coal ash brew into the Dan River without meaningful limits on its toxic pollution.
This failure not only betrays the public's interests in the Dan River, it also blatantly
violates the Clean Water Act. Under the Clean Water Act, polluters must control their
discharges of pollutants using the best available technology economically achievable ("BAT"):
"such effluent limitations shall require the elimination of discharges of all pollutants if the
Administrator finds ... that such elimination is technologically and economically achievable." 17
The EPA requires that "[t]echnology-based effluent limitations shall be established under this
12 Belews Creek Draft NPDES Permit at 5, Part I., Section A. (3.).
13 Riverbend Final NPDES Permit at 4, Part I, Section A. (2).
141d.
15 Belews Creek Draft NPDES Permit at 7, Part I, Sections A. (4.).
161d.
17 33 U.S.C. § 1311(b)(2)(A).
5

subpart for solids, sludges, filter backwash, and other pollutants removed in the course of
treatment or control of wastewaters in the same manner as for other pollutants." 18
In the absence of promulgated effluent limitation guidelines, the NPDES permit writer
must use best professional judgment ("BPJ") to determine the BAT standard applicable to the
coal ash discharges at Belews Creek. 19 When applying BPJ, "[i]ndividual judgments []take the
place of uniform national guidelines, but the technology-based standard remains the same."20 In
other words, the DWR must operate within strict limits when identifying BAT based on BPJ.
The first step in identifying BAT is identifying available technologies. At a minimum,
technological availability is "based on the performance of the single best -performing plant in an
industrial field. ,21 In other words, if the technology is being applied by any plant in the industry,
it is achievable. 22 But determination of technological availability is not limited to a single
industrial field. "Congress contemplated that EPA might use technology from other industries to
establish the [BAT] .,,23 International facilities can also be used to define BAT .24 EPA's
NPDES Permit Writers' Manual states that "BAT limitations may be based on effluent
reductions attainable through changes in a facility's processes and operations.... even when
those technologies are not common industry practice."25 Even pilot studies and laboratory
studies can be used to establish BAT; the technology need not be in commercial use to be
considered available. 26
In sum, BAT requires "a commitment of the maximum resources economically possible
to the ultimate goal of eliminating all polluting discharges."27
There can be no doubt that there are technologies available so that Duke Energy can
remove large amounts of pollutants from its coal ash polluted water before it is discharged into
"40 C.F.R. § 125.3(g).
19 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3; 15A N.C. Admin. Code 2H.01 18.
20 Texas Oil & Gas Assn v. U.S. E.P.A., 161 F.3d 923 (5th Cir. 1998).
21 Chem. Mfrs. Assn v. U.S. E.P.A., 870 F.2d 177, 226 (5th Cir.) decision clarified on reh'g, 885 F.2d 253 (5th Cir.
1989); see Am. Paper Inst. v. Train, 543 F.2d 328, 346 (D.C. Cir. 1976) (BAT should "at a minimum, be established
with reference to the best performer in any industrial category").
22 See Kennecott v. U.S. E.P.A., 780 F.2d 445, 448 (4th Cir. 1985) ("In setting BAT, EPA uses not the average plant,
but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible").
21 Id. at 453.
24 Am. Frozen Food Inst. v. Train, 539 F.2d 107, 132 (D.C. Cir. 1976).
25 EPA, NPDES Permit Writers' Manual (Sept. 20 10) at p. 5-16, available at:
https://nepis.epa.gov/Exe/ZyNET.exe/P 1009L3 5.TXT?ZyActionD=ZyDocument&Client=EPA&Index=2006+Thru
+2010&Docs=&Query=&Time=&EndTime=&S earchMethod= l&TocRestrict=n&Toc=&TocEntry=&QField=&QF
ieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=O&ExtQFieldOp=O&XmlQuery=&File=D%3A%5 Czyfiles
%5CIndex%20Data%5CO6thru 10%5CTxt%5000000023%5CP 1009L35.txt&User=ANONYMOUS&Password=an
onymous&SortMethod=h%7C-
&MaximumDocuments= l&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x 150y 150g l6/i425&Display=hpfr&DefSe
ekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=l &ZyEntr
y=1 &SeekPage=x&ZyPURL.
26 See American Paper Inst. v. Train, 543 F.2d 328, 353 (D.C. Cir. 1976).
27 EPA v. National Crushed Stone Assn, 449 U.S. 64, 74 (1980) (emphasis added).

the Dan River. In fact, DEQ has already imposed such limits for Duke Energy's "decanting" and
"dewatering" of its Sutton (Wilmington) facility and its Riverbend (Charlotte) facility. Duke
Energy is using wastewater treatment technologies to achieve those limits at those locations.
These same limits and those same technologies can and should be used for Belews Creek.
In addition, Dominion Energy in Virginia has in place wastewater treatment facilities at
its Bremo facility on the James River and its Possum Point facility on the Potomac, where it is
pumping out water from coal ash lagoons. These facilities are treating coal ash polluted water
and meeting tightened standards for coal ash pollutants. Duke Energy can use the same
technology here.
The same limits that protect the waters of Charlotte and Wilmington should be in this
permit to protect the waters of Stokes County, especially the Dan River.
B. The Kraft Permit Would Illegally Authorize the Belews Creek Waste Water
Treatment Plant to Leak.
The Belews Creek coal ash lagoon is permitted as a wastewater treatment facility. It is
required to contain and treat wastewater and to discharge the treated water (presumably with
pollutants removed) through a designated outfall. A wastewater treatment facility that leaks is
not a properly functioning wastewater treatment facility. Instead, it is a malfunctioning system
that discharges untreated, polluted wastewater from undesigned holes in the wastewater
treatment plant.
. These leaks violate the basic purpose and basic provisions of the existing and all prior
permits, even provisions that remain in the proposed permit. The Belews Creek permit
authorizes the operation of a wastewater treatment plant, and the Standard Conditions in the
permit for that wastewater treatment facility state that "pollutants removed in the course of
treatment or control of wastewaters shall be utilized/disposed of in accordance with NCGS 143-
215.1 and in a manner such as to prevent any pollutant from such materials from entering
waters of the State or navigable waters of the United States except as permitted by the
Commission." (known as the "Removed Substances" provision) .28 Of course, a properly
operated and maintained wastewater treatment plant discharges only as designed and does not
spring leaks from its sides and bottom. DEQ's attempt to authorize these polluted seeps is
therefore completely at odds with the longstanding prohibition against such releases in the
Belews Creek permit's Removed Substances provision, as describe more in Section G below.
In other words, a wastewater treatment facility cannot operate properly or legally if it
receives wastewater and then spews it into the environment, and into the waters of the state and
the United States, outside the designed treatment system. By malfunctioning in that way, a
wastewater treatment facility would be a wastewater transmission facility, leaking and disposing
of dirty wastewater into the surrounding environment.
28 Attachment 7, NPDES Permit Standard Conditions at 8 (Nov. 9, 2011) (emphasis added).
7

But that is what this proposed permit tries to allow. It tries to legalize defects in the
wastewater treatment facility—flows of untreated wastewater containing coal ash pollutants—
that are illegal under the current permit.29 And it even proposes to legalize future failures in the
wastewater treatment facility, if it cracks or springs a leak in the future. 30
There is no justification for these changes. No aspect of Duke Energy's wastewater
treatment system requires new outfalls into the Dan River or Belews Lake; on the contrary, its
system is leaking in the same way it has illegally leaked for years. DEQ is simply attempting to
legalize Duke Energy's ongoing, illegal discharges.
This is as clear an example as possible of a proposed permit that illegally eliminates or
reduces the protections of the nation's waters from pollution, in violation of the anti -backsliding
requirements of the Clean Water Act. The Clean Water Act's NPDES permitting program is
structured around progressive improvements in pollution control over time. The Clean Water
Act permit is a National Pollutant Discharge Elimination System permit that is required to make
progress towards Congress's "national goal" of eliminating discharges of pollutants to waters of
the United States. 31
For this reason, the CWA includes anti -backsliding requirements to ensure that the limits
and conditions imposed new or modified NPDES permits for a facility are at least as stringent as
those in previous permits. 32 As the Clean Water Act regulations make clear, "when a permit is
renewed or reissued, interim effluent limitations, standards or conditions must be at least as
stringent as the final effluent limitations, standards, or conditions in the previous permit ...."33
The CWA's anti -backsliding requirements apply to all NPDES permit provisions, standards, and
conditions, not just effluent limits based on BPJ.34
DEQ's efforts to re -write the permit to allow pollution that is prohibited under the
existing permit is exactly the sort of backsliding that is illegal under the Clean Water Act. The
proposed permit thus violates the anti -backsliding provisions of the Clean Water Act by
eliminating the longstanding protections against unlawful seepage into the Dan River and Belews
Lake.
This backsliding is even more egregious because these seeps discharge into the Dan
River and the Roanoke River Basin, which have already suffered the most from Duke Energy's
coal ash pollution. The Dan River coal ash catastrophe dumped over 20 million gallons and
39,000 tons of coal ash into this River. Bromide from Duke Energy's coal ash caused
carcinogens to enter drinking water systems downstream of the Belews Creek plant. The
Roanoke River Basin has more leaking Duke Energy coal ash sites than any other part of North
29 Draft Permit at 10-16, Sections A. (6.) to (12.).
30
Draft Permit at 22, Section A. (26. "New Identified Seeps").
3' 33 U.S.C. § 1251(a)(1).
32 33 U.S.C. § 1342(o).
33 40 C.F.R. § 122.44(1)(1).
34 40 C.F.R. § 122.44(1)(1); In the Matter of Star-Kist Caribe, Inc., Petitioner, 2 E.A.D. 758 at *3 (E.P.A. Mar. 8,
1989); EPA, NPDES Permit Writers' Manual Chapter 7, § 7.2.2, p. 7-4 (Sept. 2010), supra n.25.

Carolina: Belews Creek, Roxboro, Mayo, and Dan River. It is inexcusable for DEQ to remove
protections from the Dan River and the Roanoke River Basin that have been in place for decades.
Further, it is transparently obvious why DEQ and Duke Energy have gone so far as to
blatantly violate the Clean Water Act in drafting this permit. Duke Energy is currently violating
this provision of its Clean Water Act permit openly, and DEQ has done nothing to stop Duke
Energy from violating the law. Duke Energy wants to leave its coal ash in this unlined pit next
to Belews Lake and the Dan River, and in and on top of Little Belews Creek, burying the Creek
forever. Further, Duke Energy's consultants have determined that the Belews Creek coal ash
will sit deep in Stokes County's groundwater forever if it is capped in place. It is predictable that
Duke Energy's coal ash pit will continue to discharge into the groundwater, Little Belews Creek,
the Dan River, and Belews Lake, harming the quality of all of these waters.
The only way that DEQ can let Duke Energy leave its coal ash in an unlined pit in Stokes
County, polluting Stokes County's waters, is to wipe out the provisions that have been in place to
protect the Dan River for decades.
However, this scheme violates the Clean Water Act. The new Belews Creek permit must
contain the protections against seepage that have been contained in all earlier permits. These
provisions, if enforced, protect the Dan River, Belews Lake, and the Roanoke River Basin from
Duke Energy's coal ash pollution at Belews Creek.
Furthermore, DEQ's attempts to weaken these provisions violates the Clean Water Act
requirement that Duke Energy use the best available technology to eliminate its pollution of
United States and North Carolina waters, because it does not require excavation of the coal ash.
In addition, this approach violates the BAT requirement, in that the draft permit would allow
Duke Energy to avoid using key components of even its existing, minimal treatment technology
of settling out pollutants in the lagoons and skimming discharge water from the top via risers
connected to the permitted outfalls. This is an impermissible step backwards from using
available treatment technology, and accordingly it violates the CWA's BAT requirements.
Finally, this attempt violates the basic requirements of the Clean Water Act and North
Carolina law, because it purports to issue a permit for a malfunctioning wastewater treatment
facility that leaks in undesigned ways and pollutes the surrounding environment with untreated
wastewater, rather than treating wastewater before discharge into the environment.
C. DEQ's Proposed Permit Allows Duke Energy to Use Streams As Its Private
Wastewater Disposal Channels, in Violation of the Clean Water Act.
Under North Carolina law, polluters cannot highjack naturally occurring streams for use
as "effluent channels," meaning private wastewater disposal channels that are not required to
meet water quality standards.35 North Carolina regulations are clear that effluent channels "shall
... not contain natural waters," including naturally occurring streams and groundwater.36 In the
" 15A N.C. Admin. Code 02B .0228.
36 15A N.C. Admin. Code 02B .0228(2).
9

proposed Belews Creek permit, DEQ itself recognizes that jurisdictional waters cannot be used
as effluent channels, stating that effluent channel requirements "are not met" if waters are
determined to be jurisdictional waters. 37
Yet that is exactly what DEQ proposes to allow Duke Energy to do: convert North
Carolina's streams into polluted waste chutes filled with coal ash contamination. DEQ has no
legal authority to convert a stream—a water of the United States and of North Carolina—into
a Duke Energy wastewater ditch stripped of clean water protections.
Instead of abiding by the law, DEQ's proposed permit lets Duke Energy fill Little Belews
Creek with unlimited amounts of coal ash contamination, including arsenic, selenium, mercury,
and hosts of other toxic and damaging pollutants. Little Belews Creek is a naturally occurring,
jurisdictional, blue -line stream, and a tributary of the Dan River. Before the headwaters of Little
Belews Creek were buried by Duke Energy's coal ash, people enjoyed fishing in Little Belews
Creek. As explained above, the law is clear that naturally occurring waters like Little Belews
Creek cannot be used as effluent channels that are exempt from water quality standards. And in
this proposed permit, DEQ itself recognized that jurisdictional waters cannot be effluent
channels. Yet in the same breath, DEQ purports to give Duke Energy a blank check to pollute
Little Belews Creek as much as it desires, exceeding water quality standards without
consequence. Duke Energy is essentially allowed to use the entirety of Little Belews Creek as a
discharge pipe, and DEQ has placed an imaginary "outfall" for Duke at the point where Little
Belews Creek discharges into the Dan River. The permit must be rewritten so that Duke Energy
is not allowed to pollute Little Belews Creek with abandon.
DEQ makes the same mistake at seven other streams flowing out of Duke Energy's coal
ash basin at Belews Creek. For three of these seeps (S-2, S-6, and S-15), DEQ even admits that
the seeps are jurisdictional streams and therefore cannot be considered effluent channels. 38
Perplexingly, however, DEQ still attempts to convert these seeps into outfalls for Duke Energy
(outfalls 102, 106, and 115). Instead of requiring Duke Energy to meet water quality standards
in these known jurisdictional streams, DEQ provides Duke Energy the option to "install a pipe to
discharge the seep to the Belews Lake/Dan River."39
In other words, instead of holding Duke Energy accountable to the law that applies to
everyone else in North Carolina, DEQ has taken the astonishing step of encouraging Duke
Energy to install pipes to route these polluted streams more directly and more rapidly into other
waters of the U.S.—at which point DEQ will no longer consider Duke Energy to be in violation
of water quality standards, no matter how high the pollution levels are in these streams. This
approach is contrary to the law and to common sense.
DEQ proposes to treat four other seeps at Belews Creek as "effluent channels" (S-7, S-8,
S-9, and S-14), despite providing zero evidence that these seeps are not naturally occurring, just
37 Belews Creek Draft Permit at 21, Section A. (26.) ("The effluent channel requirements for seeps S-2, S-6, and S-
15 are not met due to the previous Jurisdictional Determinations or presence of side streams.")
38 id.
39 Belews Creek Draft Permit at 22, Section A. (26.)
10

as the other seeps exiting the ash basin are. 40 Furthermore, as noted above, effluent channels
cannot include naturally occurring water, with a single exception: waters that "occur in direct
response to rainfall events by overland runoff. ,41 In other words, an effluent channel can only
be designated if that channel would be dry except during rainfall events and as a result of
transporting waste water. These seeps that DEQ proposes to treat as effluent channels are fed by
groundwater, not just water that occurs as a result of rainfall'or transporting waste water. Like
the other seeps at Belews Creek, they do not meet the limited circumstances under which waters
can be called effluent channels, and therefore bypass water quality standards.
Instead of requiring Duke Energy to meet water quality standards in these streams, as the
law mandates, DEQ proposes to set lax limits on coal ash pollution that are much higher than
water quality standards that apply to all other streams in North Carolina, and in many cases sets
no limits whatsoever. 42 For example, the daily arsenic limits for these streams are 34 times
higher than the groundwater and surface water safety standards. 43 For other pollutants, such as
bromide, lead, and mercury, there are no limits at all on discharges to these streams. 44 And for
two of the known jurisdictional, natural stream (Outfall 115 and 102), there are no limits on any
pollutants except total suspended solids, oil, and grease—meaning no limits on mercury, arsenic,
thallium, selenium, or any of the other known contaminants associated with coal ash .45
The Clean Water Act provides no mechanism to convert jurisdictional waters into point
source discharges. The Clean Water Act "requires permits for the discharge of `pollutants' from
any `point source' into `waters of the United States. ,,46 By definition, a "point source" cannot
be a "water of the United States"; a point source conveys pollutants to a water of the United
States. Coal ash and coal ash wastewater are pollutants regulated under the Clean Water Act. In
theory, an "effluent channel" could be a type of point source but only if that effluent channel is
not a "water of the United States."47 In sum, jurisdictional waters cannot be point sources.
Instead, water quality standards must be met in the jurisdictional waterbody—here, the streams
flowing into the Dan River and Belews Lake.
North Carolina law incorporates the same foundational assumption that a point source
cannot be a stream, that is, a water of the United States or of North Carolina. "Effluent channel
40 Belews Creek Draft Permit at 22, Section A. (26.)
41 15A N.C. Admin. Code 2B.0228(2).
42 See e.g., Belews Creek Draft Permit at 22, Section A.(11.) (for seep S-2, Outfall 102: attempting to authorize
Duke Energy to discharge mercury, barium, zinc, arsenic, boron, cadmium, chromium, copper, lead, nickel,
selenium, nitrate/nitrite, sulfates, chlorides, TDS, and fluoride without limit); Section A. (6.) (for seep S-6, Outfall
106: attempting to authorize Duke Energy to discharge fluoride, mercury, barium, boron, cadmium, chromium,
lead, nitrate/nitrite, sulfates, and TDS without limit, and setting limits much higher than water quality standards for
other pollutants like arsenic). Moreover, DEQ's proposed permit also confusingly states that if initial sampling does
not show water'quality violations in these seeps that are known jurisdictional streams, Duke Energy will simply
have to monitor for the parameters in A. (6.). This implies that what few limits are in the permit for these seeps
actually carry no force at all.
43 Belews Creek Draft Permit at 10-16, Section A. (6.)-(12.).
44 id.
45 Belews Creek Draft Permit at 15-16, Section A. (11.)-(12.).
46 40 C.F.R. § 122. 1 (b)(1)(emphasis added).
"See 33 U.S.C. § 1362(14)(defining point source as "any discernible, confined and discrete conveyance, including
but not limited to ... [a] channel").
11

means a discernible confined and discrete conveyance which is used for transporting treated
wastewater to a receiving stream or other body of water."48 Restated, an effluent channel
conveys wastewater to a receiving stream or body of water; the effluent channel cannot itself be
the receiving stream.
Furthermore, the draft permit's authorization of the seeps violates the most basic
principles of the Clean Water Act. DEQ itself acknowledges in the Riverbend Fact Sheet that
"[t]he CWA NPDES permitting program does not normally envision permitting of uncontrolled
releases from treatment systems" and "[r]eleases of this nature would typically be addressed
through an enforcement action requiring their elimination rather than permitting" (emphasis
added).49
Indeed, DEQ has pending an enforcement action against the engineered seeps at Belews
Creek—an enforcement action that DEQ has not diligently prosecuted. Yet, in this draft permit,
DEQ attempts to legalize what it has already stated, under oath, is illegal and a serious threat to
North Carolina's people and their water quality.
There is no doubt that DEQ's proposed permit is illegal under North Carolina and United
States law.
D. The Coal Ash Must Be Removed from the Belews Creek Unlined Pit to Prevent
Illegal Pollution.
DEQ is engaging in these illegal. contortions in the draft permit in an attempt to dodge its
basic responsibility to require Duke Energy to stop its coal ash pollution of waters of North
Carolina and the United States. Instead of stopping that pollution, DEQ is engaging in various
awkward and illegal permit drafting to avoid the obvious solution: to stop the ongoing illegal
water pollution from the Belews Creek unlined pit, Duke Energy must remove its coal ash to its
very nearby lined, modern landfill.
That is the solution that is being implemented at every utility -owned waterfront coal ash
storage site in South Carolina. That is the solution being implemented at eight other Duke
Energy coal ash storage sites in North Carolina. Indeed, the Belews Creek site is the only coal
ash storage site that is not being cleaned up where Duke Energy has been forced to admit that the
coal ash is causing off-site groundwater standard violations. At Belews Creek, Duke Energy has
an existing, onsite, lined landfill (known as the Craig Road Landfill) whose -planned capacity
would hold the coal ash without any separate landfill construction and with minimal
transportation.
Any NPDES permit issued by DEQ for the Belews Creek facility must incorporate the
Clean Water Act's requirement of best available technology to eliminate discharges if the facility
is capable of achieving such elimination. In this case, all the other utilities in the Carolinas,
" 15A N.C. Admin. Code 2B.0202 (emphasis added).
49 Attachment 8, DEQ, Fact Sheet for Riverbend NPDES NC0004961 Renewal at 3 (2015).
12

including Duke Energy itself, are already implementing a guaranteed approach to eliminating
their discharges: removal of their unlined coal ash to dry, lined landfill storage or recycling.
1. SCE&G
In South Carolina, SCE&G had unpermitted seeps and groundwater contamination at its
Wateree Station facility on the portion of the Catawba River called the Wateree River. Today,
SCE&G is in the midst of removing all its coal ash from unlined lagoons at Wateree Station to
safe, dry, lined storage in a landfill away from the Wateree River. SCE&G has already removed
over 1 million tons of coal ash from its Wateree facility. In filings with the South Carolina
Public Service Commission, SCE&G has publicly stated its commitment to clean up the coal ash
at its other facilities in South Carolina as well. 50 SCE&G has also stated publicly that its cleanup
has had no effect on customer rates. 51 At the same time, groundwater contamination has
dropped by 60 to 90%.
2. Santee Cooper
South Carolina's Public Service Authority utility, known as Santee Cooper, has also
committed to excavate its coal ash from unlined lagoons and store it in dry, lined landfills or
recycle it for concrete. Santee Cooper's Executive Vice President of Corporate Services
described the removal and recycling of the unlined coal ash from the lagoons as "cost-effective"
and a "triple win" for the utility's customers, the environment, and the local economy. 12 At last
report, Santee Cooper has already removed over 700,000 tons from its Grainger Generating
Station in Conway, SC, where unlined coal ash had contaminated the groundwater and adjacent
wetlands with arsenic and other pollutants. 53 Santee Cooper is also moving ahead with
excavation from its Jefferies Generating Station in Moncks Corner, SC.54 A concrete recycling
facility has been built at its Winyah facility to remove and reprocess ash, and a new modern lined
landfill is being built to hold ash that is not recycled.55 Santee Cooper also states that its actions
to eliminate the unlined storage of coal ash will have no effect on its rates. 56
3. Duke Energy — South Carolina
In April 2015, conservation groups signed an agreement with Duke Energy for Duke to
remove all the coal ash from its W.S. Lee facility on the Saluda River in Anderson County,
South Carolina .57 Duke will remove all the coal ash to dry, lined storage away from the river,
including the ash from two leaking lagoons and in an ash storage area near the lagoons. In
50 Attachment 9, South Carolina Electric & Gas Company, Integrated Resource Plan (IRP) at 26 (Feb. 28, 2014).
51 Eric Connor, Coal ash cleanup: Someone will pay; will it be customers?, Greenville News (Apr. 28, 2014).
52 Attachment 10, Santee Cooper Press Release, Santee Cooper Announces Plans to Recycle Ash for Beneficial Use
(Nov. 19, 2013).
53 Attachment 11. Santee Cooper, Grainger Generating Station Ash Removal Report (July 7, 2016).
54 David Wren, "Coal ash removal at Santee Cooper's power plants years ahead of schedule," Post & Courier (Jan.
26, 2015).
55 id.
56 Jim Pierobon, "Smart Utilities Know There Are Responsible Solutions for Their Coal Ash Waste," The Energy
Fix (Jan. 12, 2015).
57 Attachment 12. W.S. Lee Steam Station (SC) Settlement Agreement (Apr. 23, 2015).
13

September 2014, the South Carolina Department of Health and Environmental Control entered
into a consent enforcement agreement with Duke Energy in which Duke was required to remove
coal ash from two other storage areas on the Saluda River's banks at the Lee facility. 58 Since
then, Duke Energy has begun removing ash from the site and has permitted a new, lined landfill
for removed ash.
Duke Energy's other coal ash site in South Carolina is the H.B. Robinson facility on Lake
Robinson and Black Creek in Darlington County, SC. On April 30, 2015, after months of public
pressure from conservation groups calling for a cleanup, Duke publicly committed to excavating
all the coal ash at Robinson and storing it in a dry, lined landfill on site .59 Duke Energy has
moved forward with permitting and constructing a lined landfill to hold the excavated ash.
4. Duke Energy — North Carolina
Duke Energy is now required by court order to remove the ash from seven sites across the
state. Recently, after insisting that it had to leave the coal ash in unlined pits at its Buck facility,
Duke Energy entered into a settlement agreement with conservation groups requiring it to
excavate all the coal ash from the Buck site, either to a lined landfill or to be recycled into
concrete.
Duke Energy's excavation of ten sites in two states is proof positive that dewatering and
ash removal are achievable as BAT to stop the ongoing discharges of coal ash pollutants from
the Belews Creek lagoon. Indeed, ash removal at Belews Creek is even easier than removal at
other sites, because there is only one lagoon and Duke Energy has a modern, lined landfill on site
that can hold the ash. Accordingly, ash removal should be required in the NPDES permit for
Belews Creek in order to ensure the discharges are stopped.
In sum, excavation and dry, lined storage of coal ash formerly stored in unlined, leaking
lagoons is already standard practice among all the other major utilities in the Carolinas, and
Duke Energy is now required to excavate the ash from 10 of its coal ash sites in the Carolinas —
including every other one containing 7 million tons or less. Removal of the ash to dry, lined
storage is not only economically achievable but cost effective, according to the utilities putting it
into practice. And it eliminates the continuing seepage into groundwater and surface waters, as
well as the risk of a catastrophic dam failure or spill, such as Duke Energy's Dan River spill in
February 2014.
Accordingly, DEQ must incorporate into the NPDES permit provisions requiring the
dewatering and excavation of the unlined coal ash from the leaking unlined pit at Belews Creek,
in combination with a reasonable schedule of compliance to achieve the Clean Water Act's goal
of eliminating the discharge of pollutants to public waters.
58 Attachment 13. SC DHEC and Duke Energy Consent Agreement, W.S. Lee Steam Station (SC) (Sept. 2014).
59 Sammy Fretwell, "Duke to clean up toxin -riddled waste pond in Hartsville," The State (Apr. 30, 2015).
14

E. DEQ Has Acknowledged That Zero Discharge Is Attainable For Seeps But Fails To
Require that Solution or to Impose Corresponding TBELS or Any Schedule Of
Completion.
DEQ's fact sheet for another Duke Energy coal ash site, Riverbend, concedes a zero
discharge technological solution available to Duke Energy to address coal ash seeps, but DEQ
has failed to impose TBELs based on that technology.
The Riverbend Fact Sheet acknowledges, with respect to seeps, that "[r]eleases of this
nature would typically be addressed through an enforcement action requiring their elimination. .
„60 The Fact Sheet further recognizes the availability of a zero discharge solution — collection
and "rerouting the discharge" and "discontinuing the discharge" are available solutions for
meeting technology-based effluent limits. 61 In the Belews Creek permit itself, DEQ provides the
option to Duke Energy of rerouting the seeps. 62 But importantly, Duke Energy does not require
Duke Energy to reroute the seeps back into the basin. Instead, DEQ gives Duke Energy the
option of installing pipes to route the seeps directly to the Dan River or Belews Lake. As
explained above, this absurd proposal accomplishes nothing. It does not project these streams
seeping out of the coal ash lagoon, and instead it merely streamlines the discharge of these
polluted seeps into the Dan River and Belews Lake. Moreover, for some of the seeps, DEQ
simply allows Duke Energy to continue polluting them forever as "effluent channels." This
complete disregard of an acknowledged solution to these uncontrolled discharges does not satisfy
the requirements of the federal Clean Water Act.
Indeed, DEQ must require compliance with the discharge limits achievable by the
implementation of the best available technology now. EPA defines a compliance schedule as "a
schedule of remedial measures, ... including an enforceable sequence of interim requirements
"63
(for example, actions, operations, or milestone events) .... Under EPA regulations, DW
Q
may use compliance schedules to achieve "compliance with CWA [Clean Water Act] and
regulations ... as soon as possible, but not later than the applicable statutory deadline under the
CWA. "64 The Clean Water Act requires dischargers of color pollution to comply with BAT -
based effluent limits by March 31, 1989.65 Thus, "a permit writer may not establish a
compliance schedule in a permit for TBELs [technology-based effluent limits] because the
statutory deadlines for meeting technology standards ... have passed. ,66
F. DEQ Also Cannot Permit In Advance Unidentified, Unknown Future Discharges.
As set out above, not only does the draft permit attempt to authorize the existing seeps
and leaks from the coal ash lagoon, it also attempts to put in place in advance a procedure for
seeps that have not yet occurred and whose nature is unknown, what the draft permit calls "new
60 DEQ, Fact Sheet for Riverbend NPDES NC0004961 Renewal at 3 (2015), supra n.49.
61 Condition A(5) n.4.
62 Belews Creek Draft Permit at 22, Section A. (26.).
63 40 C.F.R. § 122.2.
64 40 C.F.R. § 122.47(a)(1)(emphasis added).
65 33 U.S.C. §1311(b)(2)(A), (F).
66 EPA Permit Writers Manual, Section p. 9-8 (2010); see also EPA Permit Writers Manual, Section 9.1.3 p. 148
(1996).
15

identified seeps."67 The proposed permit states that the permit must be modified to include the
new seep, but it does not specify what public notice and comment procedures, if any, will be
used for such "modification." In other words, the draft permit tries to give Duke Energy amnesty
in advance for future malfunctions of its unlined Belews Creek coal ash lagoon, no matter how
large or how polluted the seeps are that emerge.
This proposal to permit unspecified point source discharges cannot be reconciled with the
Clean Water Act, 33 U.S.C. § 1311(a). Under the Clean Water Act, discharges must be
"identifiable" in order to the authorized by an NPDES permit. 68 The Clean Water Act does not
authorize an agency to permit future, hypothetical discharges of unknown size, quantity, and
location. This is especially true when the unknown discharges could contain level of
contamination as high or even higher than the contamination in the numerous existing seeps at
the Belews Creek site.
Instead of holding Duke Energy to the Clean Water Act, DEQ's proposal attempts to
shield Duke Energy from further legal violations. The proposed permit is essentially a guarantee
to Duke Energy that it no longer has to operate its ash basin properly so as to prevent additional
leaks from springing up. Future seeps are prohibited under Duke Energy's current NPDES
permit, just as the existing seeps are. These "uncontrolled.releases" of leaking wastewater
should be the subject of an enforcement action requiring their elimination. Indeed, DEQ has
filed such an action in state Superior Court for the engineered seeps at Belews Creek, but has
failed to diligently prosecute that case. Duke Energy's operating companies have pleaded guilty
to criminal violations of the Clean Water Act for exactly such unpermitted discharges.
DEQ's proposed permit purports to legalize these previously illegal discharges with the
stroke of a pen, rather than requiring Duke Energy to take any action to remedy the violations.
Even more shockingly, DEQ is proposing to grant Duke amnesty for unknown numbers of future
violations of the Clean Water Act as well. This is nothing more than an attempt to shield Duke
Energy from having to comply with the laws it has been violating for years.
Furthermore, the proposed permit's authorization of future seeps violates the CWA's
public participation requirements. The proposed permit would allow Duke to evade public
notice and comment and the opportunity for a public hearing and for judicial review, along with
all the other requirements of the state NPDES permitting program. 69 While the draft permit
vaguely states that a new seep would require the permit to be "modified," there is no indication
that public notice and comment would be required. Further, the draft permit purports to set out
that any new seep would be handled in the same way as the existing seeps—without knowledge
as to the nature or circumstances of the new seep.
It is beyond the authority of DEQ to authorize new point source discharges without the
full procedures of a modification of the NPDES permit with public comment and EPA oversight.
67 Draft Permit Section A. (26.).
68 U.S. v. Tom -Kat Dev., Inc., 614 F. Supp. 613, 614 (D. Alaska 1985) (citing 40 C.F.R. § 122.1(b) (1)). Accord
U.S. v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979); Legal Envtl Assistance Found., Inc. v. Hodel, 586
F. Supp. 1163, 1168 (E.D. Tenn. 1984); U.S. v. Saint Bernard Parish, 589 F. Supp. 617 (E.D. La. 1984)).
69 33 U.S.C. § 1342(b)..
16

EPA's regulations authorize limited administrative changes to an active permit through minor
modifications, 70 none of which condone the administrative addition of a new point source
discharge, which must be permitted as an NPDES outfall. Nor can DEQ prejudge the way a new
point source discharge would be addressed, by simply adding the seep to a list to be addressed in
the same way as it proposes to address the existing seeps. This scheme is inconsistent with the
requirements of the Clean Water Act.
The existing permit and all prior ones are the result of the full agency process, public
review, public comment, and the procedures required by the Clean Water Act and North Carolina
law. These illegal flows of polluted water into the Dan River and Belews Lake, expressly
forbidden by the existing permit, cannot be made legitimate by totally changing the permit to
allow contaminated water to pop out of this purported wastewater treatment facility and spill into
other surface waters. It is inconceivable that a permitted wastewater treatment facility would be
allowed to repeatedly open up leaks and discharge polluted water from the supposed wastewater
treatment lagoons into a public waterway. This proposed option is not law enforcement or
pollution elimination at all, but instead an option for the law enforcement agency to try to find a
way to make unlawful and polluting activities "permitted" and avoid dealing with the risks to the
public. This stratagem should not be adopted by a state agency that has the responsibility of
enforcing the law and protecting the State's natural resources and the public interest.
Instead, this permit should require the implementation of the proven method of
eliminating seeps from these defective wastewater treatment systems — movement of the ash to
safe, dry lined storage and appropriate dewatering of the lagoons.
G. The Authorization of Seeps In the Proposed Permit Violates the Permit's
Longstanding Removed Substances Provision.
As explained above, the Removed Substances requirement in the Belews Creek permit is
a common-sense provision to prevent pollutants removed by waste treatment facilities from
escaping out into the environment. The Removed Substances provision is an important
component of the Clean Water Act's protections, and prevents waters of the United States from
being polluted by waste treatment facilities such as the Belews Creek coal ash settling lagoon.
Inclusion of the Removed Substance provision "is based on the simple proposition that there is
no way one can protect the water quality of the waters of the U.S if the [polluter] is allowed to
redeposit the pollutants collected in his settling ponds."71 Removed Substances provisions
ensure that "measures shall be taken to assure that pollutants materials removed from the process
water and waste streams will be retained in storage areas. "72
In the context of the Belews Creek permit, the removed substances provision is also the
implementation of a required permit component under the implementing regulations of the Clean
Water Act. The implementing regulations for the Clean Water Act require that "[t]echnology-
based effluent limitations shall be established under this subpart for solids, sludges, filter
70 40 U.S.C. § 122.63.
In the Matter of 539 Alaska Placer Miners, Nos. 1085-06-14-402C & 1087-08-03-402C, 1990 WL 324284 at *8
(EPA 1990)
72 40 C.F.R. § 440.148(c) (emphasis added).
17

backwash, and other pollutants removed in the course of treatment or control of wastewaters in
the same manner as for other pollutants.i73 Under the existing permit issued to Duke Energy for
the Belews Creek plant, DEQ did not set individual TBELs for seeps from the ash basin but
rather took the only responsible step of treating zero liquid discharge as the BAT for
contaminated seeps from a coal ash impoundment. In other words, consistent with the
requirement to set TBELs for pollutants removed by the wastewater treatment ash ponds, the
existing permit prohibits any discharge of removed substances to waters of the United States or
of North Carolina.
DEQ itself has cited Duke Energy for violating the Removed Substances provision by
allowing pollutants to enter waters of the State and navigable waters due to uncontrolled releases
from Duke Energy's coal ash lagoons at its Dan River facility. In a February 28, 2014 Notice of
Violation, DEQ cites the discharge "of coal combustion residuals from the ash pond to the Dan
River, class C waters of the State" as violating the Removed Substances provision: "Failure to
utilize or dispose solids removed from the treatment process in such a manner as to prevent
pollutants from entering waters of the State (Part II, Section C. 6. of NPDES permit)." Part
II.C.6 of the Dan River NPDES Permit contains the Removed Substances permit provision.
There is no indication that DEQ is eliminating the Removed Substances provision from
the proposed permit—nor could it, without violating the Clean Water Act's prohibition against
backsliding. The Removed Substances provision is part of the standard conditions for all
NPDES permits in North Carolina that applies to all wastewater treatment facilities.
Consequently, the proposed authorization to discharge removed substances through seeps is.
directly contrary to the continuing prohibition against those very same discharges in the
Removed Substances provision.
DEQ cannot allow pollutants removed in the course of treatment to enter waters of the
State and United States via uncontrolled releases that have sprung and that may spring out of the
lagoon and start discharging to public waters at any time, when such releases are already
prohibited by the current permit and the proposed permit itself.
H. The Draft Permit Threatens the Safety of the Belews Creek Dam.
By allowing seeps to continue, DEQ is threatening the safety of the Belews Creek coal ash
dam. The Belews Creek coal ash dam is a high hazard dam.
DEQ itself has previously acknowledged the danger of seeps for earthen dams at Duke -
Energy's coal ash ponds. In 2010, DEQ issued a dam safety Notice of Inspection for an earthen
dam at Duke Energy's Mayo coal ash site, warning that:
"Two of the more common types of earth dam failures are caused or influenced
by excessive seepage. Excessive seepage can produce progressive internal
erosion of soil from the downstream slope of the dam or foundation toward the
upstream side to form an open conduit or `pipe.' Seepage pressures decrease the
strength characteristics of the embankment soil. The resulting reduction in
73 40 C.F.R. § 125.3(g).
18

embankment stability can produce a slide failure of the downstream slope."
(emphasis added).
Recent dam safety reports by Duke Energy's own consultants show that seepage is a
safety problem for the Belews Creek dam. The report explains that there are "unacceptable
seepage conditions" at the Belews Creek dam, which "consist of horizontally -flowing seepage
exiting on the downstream face of the dike, which is known as an unfiltered exit. This condition
creates a risk for potential internal erosion (piping) and uncontrolled seepage"74
DEQ is ignoring its own warnings and the warning of Duke Energy's own consultants by
trying to allow this unacceptable Belews Creek seepage to continue, and by purporting to allow
future, unknown seeps, without any knowledge of their future effects on the Belews Creek coal
ash' dam.
DEQ's proposal to allow unlimited seepage from the dam at Belews Creek also violates
another provision of the proposed and existing Belews Creek permit, which requires the facility
to meet dam safety requirements under North Carolina law. 75
I. DEQ Cannot Issue a Permit to a Facility That Is Violating Surface Water Standards.
DEQ's proposed permit is unlawful because it would exacerbate, rather than eliminate,
the serious surface water quality standard violations caused by discharges from the Belews Creek
coal ash lagoon.
NPDES permits control pollution by setting (1) limits based on the technology available
to treat pollutants ("technology based effluent limits") and (2) any additional limits necessary to
protect water quality ("water quality -based effluent limits") on the wastewater dischargers .7' An
NPDES permit must assure compliance with all statutory and regulatory requirements, including
state water quality standards. 77 Similarly, North Carolina law provides that "[n]o permit may be
issued when the imposition of conditions cannot reasonably ensure compliance with applicable
water quality standards."78
.At Belews Creek, Duke Energy is violating not just one, but numerous surface water
quality standards in the Dan River. Duke Energy's own reports show exceedances of aluminum,
copper, lead, thallium, total dissolved solids, and chloride directly downstream of the Belews
Creek coal ash lagoons. 79 All of these pollutants were found at levels higher than anything
74 Amec CCR Annual Surface Impoundment Report at PDF 10 (Aug. 18, 2016) (emphasis added).
75 Belews Creek Draft Permit at 19, Section A. (20.).
76 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. § 122.44(a)(1), (d).
77 33 U.S.C. § 1342(a)(1)(A); 40 C.F.R. § 122.43(a); 15A N.C. Admin. Code 2H.01 18.
78 15A N.C. Admin. Code 2H.0112(c); see also N.C. Gen. Stat. §§ 143 -215.6a -c (authorizing civil and criminal
penalties and injunctive relief for violations of surface water standards).
79 Belews Corrective Action Plan Part 2, Table 2-11.
ELI

detected in upstream monitoring locations. 80 In addition, boron—a contaminant that Duke
Energy has admitted is coming from coal ash at Belews Creek—was detected at levels as high as
8,100 parts per billion in the Dan River downstream of Duke Energy's coal ash site, while no'
detectable boron was found upstream. 81 These surface water standard violations reveal the
magnitude of Duke Energy's coal ash pollution and the harm it is causing, even after it has
traveled to and mixed with the Dan River, which has already suffered greatly from Duke
Energy's coal ash pollution.
Surface water quality violations are also occurring downstream of the Belews Creek coal
ash in Belews Lake, for contaminants like lead, aluminum, and copper, while no exceedances
were found upstream for these pollutants. 82
DEQ can remedy an ongoing violation of surface water quality standards and "ensure
compliance with applicable water quality standards" in the Dan River only by requiring that the
source of the pollution, the coal ash, be removed from Belews Creek; that the seeps of coal ash
polluted water into Belews Creek be stopped; and that the coal ash be removed from the unlined
pit, where it contaminates groundwater and the seeps/streams that flow into the Dan River,
directly or indirectly. DEQ certainly cannot meet the standards of the Clear Water Act and
North Carolina law by eliminating the existing permit protections of the Dan River; permitting
the seeps; creating "effluent channels"; and allowing the coal ash to remain in place.
These discharges cannot be permitted as long as surface water quality standards are
violated in the Dan River and Belews Lake.
J. The Draft Permit Fails to Account for Discharges of Wastewater Through
Hydrologically Connected Groundwater.
The Clean Water Act is a strict liability statute prohibiting the discharge of any pollutant
to a water of the United States without a permit. 83 The Belews Creek coal ash pond discharges
significant quantities of contaminated wastewater to the Dan River and Belews Lake through
groundwater via a direct hydrologic connection to the Lake and the Branch. That discharge is
not included in the current permit and attempting to add it now would violate the anti -
backsliding provision of the Clean Water Act. 84
so Id.
si Id.
821d.
ss 33 U.S.C. § 1311(a).
84 33 U.S.C. § 1342(o); 40 C.F.R. § 122.44(1)(1) ("[W]hen a permit is renewed or reissued, interim effluent
limitations, standards or conditions must be at least as stringent as the final effluent limitations, standards, or
conditions in the previous permit ....").
20

The United States Department of Justice ("DOJ") recently emphasized "EPA's
longstanding position [] that a discharge from a point source to jurisdictional surface waters that
moves through groundwater with a direct hydrological connection" comes under the purview of
the CWA.85 As expressed by DOJ, "it would hardly make sense for the CWA to encompass a
polluter who discharges pollutants via a pipe running from the factory directly to the riverbank,
but not a polluter who dumps the same pollutants into a man-made settling basin some distance
short of the river and then allows the pollutants to seep into the river via the groundwater." 86
The same reasoning applies here. As discharges to the Dan River, Belews Lake, and Little
Belews Creek via hydrologically connected groundwater were not authorized and therefore
prohibited under the current permit, they cannot be authorized in the draft permit, and they are
not in the draft permit.
Consequently, DEQ must require Duke Energy to stop the discharge of contaminated
wastewater to the Dan River, Belews Lake, and Little Belews Creek via hydrologically
connected groundwater by removing the source of contamination—Duke Energy's coal ash in
the unlined Belews Creek pit.
K. The Draft Permit Has Inadequate Monitoring.
During decanting and dewatering, Duke Energy should be required to take daily samples.
These activities are not part of the normal operation of the plant because they are not part of its
wastewater treatment function. Special care needs to be taken to ensure the limits in the permit
are enforced. Some of the limits in the draft permit have only monthly sampling, and many have
only weekly sampling. During the dumping of millions of gallons of coal ash polluted water in
the Dan River—an important regional water resource—daily sampling is essential for limits to
have real meaning.
Indeed, Dominion Energy in Virginia has in place wastewater treatment facilities at its
Bremo facility on the James River and its Possum Point facility on the Potomac, where it is
pumping out water from coal ash lagoons. These facilities are treating coal ash polluted water
and meeting tightened standards for coal ash pollutants. Duke Energy can use the same
technology here.
L. The Proposed Permit Violates North Carolina's Groundwater Rules
Because of the groundwater contamination at and beyond the compliance boundary at
Belews Creek, the state groundwater rules prohibit DEQ from issuing the proposed NPDES
permit for the Belews Creek coal ash lagoon.
85 See Attachment 14, Amicus Brief, Hawaii Wildlife Fund v. County of Maui at 5 (No. 15-17447, 9" Cir.).
86 Id. at 16 (quoting N. Cal. River Watch v. Mercer Fraser Co., No. 04-4620, 2005 WL 2122052, at *2 (N.D. Cal.
Sept. 1, 2005)).
21

North Carolina's groundwater rules state that "the [Environmental Management]
Commission will not approve any disposal system subject to the provisions of G.S. 143-215.1
which would result in a violation of a groundwater quality standard beyond a designated
compliance boundary." 87 The draft permit states on its face that it is issued under the authority,
of "North Carolina General State 143-215.1." The Belews Creek coal ash lagoon is a disposal
system for purposes of the 2L groundwater rules, with compliance boundaries set by the rules. 88
Because DEQ issues this permit under authority delegated by the Environmental Management
Commission, this prohibition applies to DEQ as well.
There is no question that the disposal system authorized by this permit will result in a
violation of a groundwater quality standard at a designated compliance boundary. It already has.
There is an extensive history of documented groundwater contamination at Belews Creek.
Indeed, DEQ has ordered Duke Energy to undertake assessment activities and filed an
enforcement case in Superior Court seeking injunctive relief to abate groundwater contamination
at the site. And Duke Energy has admitted that contamination is migrating not only beyond the
compliance boundary at Belews Creek, but also past Duke Energy's •property boundary.89 Duke
Energy's own studies confirm that it has contaminated the groundwater with elevated levels of
pollutants including antimony, arsenic, boron, chromium, cobalt, iron, manganese, total
dissolved solids, and vanadium, at levels above both state groundwater standards and Duke
Energy's own proposed background concentrations. 90
The groundwater violations at and beyond the compliance boundary will only continue,
in violation of the state groundwater rules, if the ash is allowed to remain in the unlined lagoon
where it will continue leaching pollutants into the groundwater. Because this disposal system
has already resulted in violations of groundwater quality standards and will continue to do so,
DEQ cannot issue the proposed NPDES permit without imposing conditions sufficient to ensure
these violations will cease. A requirement for final closure of the Belews Creek coal ash
impoundments and removal of the ash to dry, lined storage is the only assured solution to stop
ongoing violations of quality standards at the compliance boundary. Accordingly, the permit
should require removal of the ash to safe, dry lined storage.
M. The Permit Wrongly Purports to Grant Duke Energy a Variance for Thermal
Discharges, Despite Recognizing That There Is Not Sufficient Evidence for One.
DEQ's proposed permit attempts to grant Duke Energy a variance for its thermal
discharges from the cooling water outfall that discharges into Belews Lake, despite the fact that
DEQ itself recognizes that there is not sufficient evidence showing that a balanced, indigenous
population of aquatic life will exist if the variance is granted. The fact sheet for the proposed
permit states that "based on the biological study submitted in 2016, the Water Sciences Section
of the DWR concluded that the information provided in the latest report is insufficient to
$� 15A N.C.A.C. 2L.0 103(b)(2).
88 15A N.C.A.C. 2L.0107.
89 Attachment 15, HDR, Corrective Action Plan Part 2, Belews Creek Steam Station Ash Basin (Mar. 7, 2016).
90 Attachment 16, HDR, Corrective Action Plan Part 1, Belews Creek Steam Station Ash Basin (Dec. 8, 2015);
DEQ, Comprehensive and Ongoing Groundwater Results from Duke, available at
http://edocs.deq.nc.gov/WaterResourcesBrowse.aspx?startid=221202&dbid=0 (Sept. 15, 2016), supra n.11.
22

determine existence of the Balanced and Indigenous population offish and
macroinvertebrates in the receiving stream."9 Yet the proposed permit attempts to implicitly
grant Duke Energy a thermal variance without the necessary evidence, stating that "[i]n order to
continue the Thermal Variance beyond the term of this permit the facility shall develop and
conduct comprehensive 316(a) studies."92 To the extent that this statement purports to allow a
thermal variance for the duration of this permit term—before any demonstration of a balanced,
indigenous population has been made—DEQ is unlawfully putting the cart before the horse.
As the Clean Water Act regulations make clear,
"Thermal discharge effluent limitations or standards established in permits may be
less stringent than those required by applicable standards and limitations if the
discharger demonstrates to the satisfaction of the director that such effluent
limitations are more stringent than necessary to assure the protection and
propagation of a balanced, indigenous community of shellfish, fish and wildlife
in and on the body of water into which the discharge is made."93
Duke Energy has made no such demonstration here, and cannot receive a thermal variance unless
and until it meets this requirement. This is especially true given the history of damage to the fish
and other aquatic life in Belews Lake that has resulted from Duke Energy's coal ash operations
at Belews Creek. In 2007, EPA classified Belews Lake a "proven ecological damage case" due
to selenium poisoning from leaking coal ash pits at the Belews Creek plant. 94 Selenium
contamination from the coal ash pits ultimately eliminated 19 of the 20 fish species present in
Belews Lake. 95 DEQ must abandon its proposal to give Duke Energy a variance for its thermal
discharges, without knowing how much this will further decimate the fish population in Belews
Lake.
N. DEQ Fails to Exercise Its Best Professional Judgment to Establish Protections for
Fish and Other Aquatic Life Harmed by Duke Energy's Cooling Water Intake.
DEQ is permitted to allow Duke Energy until the next permitting cycle to provide
sufficient information to establish final impingement mortality and entrainment BTA, but only if
"the facility demonstrates that it could not develop the required information by the applicable
date for submission."96 Duke Energy has had over two years since the final rule applicable to the
Belews Creek facility was published. 97 Neither the proposed permit nor the fact sheet provides
91 Belews Creek Draft Permit Fact Sheet at 5 (emphasis added).
92 Belews Creek Draft Permit at 25.
93 40 C.F.R. § 125.73(a).
94 USEPA Office of Solid Waste, Coal Combustion Waste Damage Case Assessments 25 (July 9, 2007).
95 Rachel Cernansky, National Geographic News, Largest U.S. Coal Ash Pond to Close,�But Future Rules Still
Undecided (Aug. 9, 2012), available at http://news.nationalgeographic.com/news/energy/2012/08/120809-little-
b lue-run-coal-ash-pond-to-close.
9'40 C.F.R. § 125.95(a)(2).
97 National Pollutant Discharge Elimination System—Final Regulations To Establish Requirements for Cooling
Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48,300
(Aug. 15, 2014).
23

any explanation of why Duke Energy was not able to collect the necessary information during
this time. Duke Energy therefore should not receive a blanket, unsupported, five-year extension
from DEQ to collect information that the company has already had years to collect.
In addition, DEQ must still "establish interim BTA requirements in the permit on a site-
specific basis based on the Director's best professional judgment."98 There is no indication that
DEQ has engaged in such analysis in this proceeding. Rather, the Fact Sheet simply states: "The
permittee shall comply with the Cooling Water Intake Structure Rule per 40 C.F.R. § 125.95.
The Division approved the facility request for an alternative schedule in accordance with 40
C.F.R. § 125.95(a)(2). The permittee shall submit all the materials required by the Rule with the
next renewal application. "99 DEQ has had more than sufficient time to assess at least interim
BTA for Belews Creek. As such, any final permit must include, at minimum, interim BTA
standards based on DEQ's best professional judgment and consideration of the factors and
technologies specified at 40 C.F.R. §§ 125.94 and 125.98.
O. Environmental Justice Concerns Further Highlight the Need for Protection from
Contamination at Belews.
The proposed permit would increase the burden on the predominantly minority
community surrounding the Belews Creek ash site, and fails to comply with the
recommendations of the U.S. Commission on Civil Rights for stopping coal ash contamination in
this community.
The community next to the Belews Creek ash site, known as the Walnut Tree community,
is over 90% African-American. The Walnut Tree community borders the predominantly white
town of Walnut Cove in the overwhelmingly white Stokes County. 100 In response to advice from
the North Carolina Advisory Committee, the U.S. Commission on Civil Rights recently issued a
recommendation that "NCDEQ and EPA should take action that proactively prevents low
income communities and communities of color from being disproportionately affected by coal
ash disposal." 101 In particular, the Commission recommended that "NCDEQ and EPA should
strengthen the regulation(s) on coal ash storage, to ensure that the minimum standard for all
coal ash storage is in lined, watertight landfills away from drinking water sources," and that
"NCDEQ, EPA, and Duke Energy should look into long term solutions to prevent coal ash
leakage and contamination such as conversion into cement and other waste disposal options
which do not risk leakage into the air or water." 102
DEQ's proposed permit fails to heed this recommendation from the U.S. Commission on
Civil Rights. The proposed permit does nothing to ensure that the coal ash at Belews Creek will
be stored in lined, watertight landfills away from drinking water sources. And it fails to provide
98 Id. (emphasis added).
99 Belews Creek NPDES Fact Sheet at 5.
ioo Stokes County is approximately 94% White and approximately 4% African American. Quick Facts, Stokes
County, United States Census Bureau, http://www.census.gov/quickfacts/table/PST045215/37169.
101 Attachment 17, U.S. Commission on Civil Rights, Environmental Justice: Examining the Environmental
Protection Agency's Compliance and Enforcement of Title VI and Executive Order 12,898 at 201 (Sept. 2016).
102 Id.
24

long term solutions to prevent coal ash leakage and contamination. In fact, the proposed permit
does just the opposite: it purports to allow coal ash leakage and contamination at the Belews
Creek site.
Title VI of the Civil Rights Act of 1964 states that "[n]o person in the United States shall,
on the ground of race, color or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance." 103 As a state agency receiving federal funds, the North Carolina
Department of Environmental Quality ("NCDEQ"), must comply with Title VI and its
regulations. Thus far, the regulatory efforts of the state do not'comport with the statute.
The population living in Walnut Tree and living near Belews Creek has a higher
percentage of people of color than the state-wide average or the county average. DEQ has
harmed citizens of North Carolina and the State's natural resources by failing to properly
regulate Duke's coal ash storage at the Belews Creek station. The on-going water contamination
near Belews is having a discriminatory impact on the people of color who live near Belews
Steam station.
Because DEQ has administered its permitting programs in a way that has a
discriminatory effect based on race, color or national, origin, in violation of EPA's Title VI
Implementing Regulations, DEQ must correct this approach and comply with its Civil Rights
obligations or risk loss of federal funding. 104 To do so, it must abandon its current proposal and
issue a new permit that ensures the community at Belews Creek will be protected from Duke
Energy's coal ash contamination.
Sincerely,
Myra Blake
Staff Attorney
cc: Gina McCarthy, EPA Administrator
Heather McTeer Toney, Regional Administrator, Region 4
"' 42 U.S.C. § 2000d (2012).
too "Non -Discrimination in Programs Receiving Federal Assistance from the Environmental Protection Agency" at
40 C.F.R. Part 7 et. seq.
25.