NC0005088_Comments to draft renewal_20161114

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] SOUTH PACK SQUARE. SUITE 700 Facsimile 828-258-2024
ASHEVILLE. NC 28801-3494
November 10, 2016
VIA EMAIL AND U.S. MAIL
Wastewater Permitting
Attn: Rogers Energy Complex
1617 Mail Service Center
Raleigh, N.C., 27699-1617
[e-mail]
[e-mail]
RECEtvED/NCDEQ/DWR
NOV 14 2016
Water Quanty
NIMitting Section
Re: Draft NPDES Permit — Cliffside Steam Station, Rogers Energy Complex,
#NC0005088
Dear Mr. Zimmerman:
On behalf of MountainTrue, we submit the following comments on the draft renewal
National Pollutant Discharge Elimination System ("NPDES") permit noticed for public comment
by the North Carolina Department of Environmental Quality ("DEQ") Division of Water
Resources for Duke Energy's discharge of pollution from its Cliffside Steam Station
("Cliffside").
MountainTrue is a nonprofit organization dedicated to protecting streams, rivers, and
groundwater from contamination. MountainTrue has members that use the Broad River for
recreation, business, or educational purposes and that rely on groundwater as a source of
drinking water, including groundwater in close proximity to the Cliffside plant. MountainTrue
also works with its affiliate, the Broad River Alliance, in advocating for cleaner water, awareness
and education of the Broad River, improved access, and broadened recreational opportunities
within the Broad River Basin. For years, MountainTrue has advocated in the courts and public
arena for proper cleanup and remediation of Duke Energy's unlined, leaking coal ash
impoundments, including those at the Cliffside plant.
Duke Energy's three unlined surface impoundments sprawl across 144 acres and contain
a combined 7.8 million tons of coal ash.' EPA's recently published Effluent Limitation
Guidelines ("BLG") rightly recognizes such "surface impoundments ... are largely ineffective at
controlling discharges of toxic pollutants and nutrients." 80 Fed. Reg. 67838, 67840 (Nov. 3,
2015). Duke Energy's Cliffside plant is not different. The Broad River, which wraps around the
northern perimeter of all three coal ash basins, is the eventual recipient of unlawful leaks and
seeps emerging from the antiquated ash basins. Although Duke Energy plans to fully excavate
only the smallest basin (Units 1-4 inactive) and remove it to the existing lined landfill on site, it
'See Duke Energy Ash Basin Metrics, h!Ltps://www.duke-
energy.com/ /media/41f7548d440b45c98a8e96934b8cfae2.ashx (updated June 2, 2016).
Charlottesville • Chapel Hill • Atlanta • Asheville a Birmingham • Charleston • Nashville • Richmond • Washington. DC
100% recycled paper

intends to leave in place the two largest basins, where its own studies show the ash will remain
submerged below the groundwater table. Duke Energy's models predict the ash basins will leach
pollutants into groundwater, streams, and wetlands for centuries.
On August 16, 2013, DEQ filed a verified complaint with the Mecklenburg County
Superior Court in which DEQ itself stated that Duke's unpermitted discharges to the Broad River
violate state law and that "without ... taking corrective action," they "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." Verified Complaint & Motion for Injunctive Relief, State of North
Carolina ex rel. N.C. DENR, DWQ v. Duke Energy Carolinas, LLC, No. 13 CVS 14661
(Mecklenburg Co., May 24, 2013), ¶ 197.2 Over three years have passed since DEQ asked the
court to enter a permanent injunction requiring Duke to "abate the violations" at its leaky ash
basins at Cliffside in the enforcement suit, to which MountainTrue is also a party.
To this day, the massive coal ash basins at the Cliffside plant continue to leak pollutants
into groundwater, streams, and the Broad River. Instead of requiring compliance with the CWA,
DEQ attempts through this draft permit to legitimate the antiquated ash basins with a novel
permitting scheme that would give a failing wastewater treatment system permission to pollute
through leaks and would convert streams and wetlands into disposal areas. DEQ does not enjoy
unfettered discretion to simply give Duke a license to pollute as it wishes, but rather, is
constrained to meet certain minimum requirements of the CWA.3
The permit, as currently proposed, violates the federal Clean Water Act and state law in
many ways, including:
• Converting natural streams and wetlands into Duke Energy's private "Effluent
Channels" to convey pollution;
• Ignoring unlimited discharges of pollution from the coal ash basins through
hydrologically connected discharges to Suck Creek, the Broad River, and adjacent
wetlands and streams;
• Issuing a permit to pollute where water quality standards are already violated in Suck
Creek and where waters are classified as protected critical areas;
• Failing to develop water quality based effluent limitations that cover all point source
discharges and protect the streams and wetlands actually receiving the polluted
discharges;
• Allowing unlimited discharges of pollutants like cadmium, selenium, arsenic, and
many more, by flouting the requirement to set technology-based effluent limitations
for discharged pollutants;
2 DEQ's complaint is available for download at https:Hdeq.nc.gov/news/hot-topics/coal-ash-nc/coal-ash-
enforcement.
3 The State of North Carolina administers the State's NPDES permitting program, pursuant to authority delegated to
it from the EPA. See 33 U.S.C. § 1342(b).
2

• Giving Duke a free pass to delay in complying with new limits in federal effluent
guidelines;
• Neglecting to define a compliance boundary around the active basin that stops Duke
Energy from co-opting the Broad River into its wastewater treatment; and
• Purporting to grant Duke Energy an enormous, and unjustifiable, mixing zone
throughout a 12 -mile stretch of the Broad River to meet the standard for temperature
with its thermal discharge, instead of requiring compliance at the point of discharge.
For all of these reasons, which are explained more thoroughly below, DEQ must
withdraw the defective permit and reissue for public comment a revised permit.
1) DEQ's Proposed Approach for Permitting Seepage from the Ash Basins Violates the
Clean Water Act.
DEQ's draft permit is the agency's latest effort to find a way to deal with Duke Energy's
ash basins which are indisputably leaking coal ash pollutants into streams and the Broad River.
Holding fast to its multi-year reluctance to actually require Duke Energy to eliminate these
unplanned discharges and releases, DEQ tries in this draft permit to legitimate most seepage
through a paper exercise. Like earlier proposals, this draft permit falls far short of achieving
compliance with the law and does not require Duke Energy to stop its polluted seepage.
Duke Energy reported 35 seeps "surrounding the active and inactive ash basins" at
Cliffside. NCDEQ, Fact Sheet for NPDES Permit Development, NPDES No. NC0005088, at 8
[hereinafter "Permit Fact Sheet"]. Pollutants like arsenic, barium, beryllium, boron, chromium,
cobalt, iron, lead, manganese, nickel, sulfate, total dissolved solids, thallium, and vanadium
escape through seeps around the ClifM& plant, according to Duke Energy's own sampling.
MountainTrue's sampling of seeps flowing towards the Broad River has similarly revealed
numerous pollutants escaping from Duke Energy's coal ash basins.
DEQ proposes to turn the majority of these seeps into effluent channels, even if the
channels themselves are streams or emerge from wetlands. See Permit Fact Sheet at 8-9 & Table
8 (designating 21 seeps as effluent channels). The sum effect of DEQ's proposal is to authorize
a wastewater treatment facility (the ash basins) to discharge through numerous leaks and seeps,
rather than require them to contain the coal ash contamination they were ostensibly designed to
hold. As to the remaining 14 seeps, DEQ proposes to ignore them altogether. In other words,
DEQ proposes to "authorize" a leaking wastewater treatment facility, allowing coal ash polluted
wastewater to escape through leaks and seeps instead of through the normal discharge. This
defeats the purpose of the waste treatment system authorized by the permit. The basins
ostensibly "treat" the waste streams they receive by settling in the basins. Water is discharged
from the top of the basin via a riser system that leaves the more polluted wastewater and settled
pollutants in the basin. If the basins are allowed to leak from their sides and bottom, this system
is circumvented.
3

The discharge of water polluted with coal ash contaminants through seeps and leaks
should not be permitted under the CWA, or else the entire purpose and function of the waste
treatment system would be evaded. Instead, DEQ should require Duke Energy to stop the
discharge of contaminated water by removing the source of contamination of those seeps—that
is, the coal ash stored within the ash impoundments and submerged in groundwater at Cliffside
plant should be removed and safely disposed of in dry, lined storage.
The fact sheet alludes to this eventual outcome under a separate state process of closing
the ash basins pursuant to the Coal Ash Management Act ("CAMA"): "the facility needs to
dewater the ash pond by removing the interstitial water and excavate the ash to deposit it in
landfills." Permit Fact Sheet at 5. Of course, if DEQ intends to follow through on requiring
removal of the active ash basin, that would provide a legitimate means of abating polluted
discharge under the CWA, and should be incorporated into this permit. As such, the dewatering
and seep permitting would be instead "interim compliance measures" for the contemplated
removal of ash. As written, however, the permit instead puts no end-point on pollution escaping
through seepage, which is impermissible.
A. Permitting Waters of the United States as "Effluent Channels" Violates the Clean Water
Act and North Carolina Law.
DEQ's chief permitting strategy for seeps in the draft Cliffside permit is to bestow on
them the new label "seep outfalls" and identify them as "effluent channels" which flow into
"receiving streams." In fact, DEQ decides all 21 seeps it views in need of a permit are,
coincidentally, also "effluent channels" to convey Duke Energy's polluted discharge. Permit
Fact Sheet at 8-9; Rogers Energy Complex Draft NPDES Permit, Permit No. 0005088,
Conditions (A) 7 to A (24) [hereinafter "Draft NPDES Permit"]. These seeps, however, appear
to be jurisdictional waters and ineligible for designations as effluent channels.
Duke Energy has identified seeps S-3 and S-6 as "tributaries of Broad River," for
example, in its own Discharge Assessment Plan. See Duke Energy Carolinas, LLC, Discharge
Assessment Plan, Cliffside Steam Station, at Table 1 & Fig. 2 (April 2016) [hereinafter "DAP"].4
Seep S-3 appears to be a stream discharging to the Broad River north of inactive units 1-4. See
DAP at Fig. 2. Seep S-6 is located downgradient from the downstream dam of the active ash
basin and coincides with historical Suck Creek discharge. See id. at Fig. 1; Comprehensive Site
Assessment, Fig. 2-3.1.5 Several seeps along the active impoundment on Suck Creek (5-14, S-
15, 5-16, 5-21) and the Broad River (S-2, 5-17, 5-18, 5-19, S -19a) also coincide with wetlands
identified by Duke Energy. See Corrective Action Plan, Part 1 ("CAP I"), Fig. 1-5. Duke
Energy itself has conceded that the `Broad River" and "all tributaries of the Broad River" are
jurisdictional "waters of the United States." See Joint Factual Statement, U.S. v. Duke Energy,
4 Available at DEQ's website at the following link: https://ncdenr.s3.amazonaws.com/s3fs-
public/Water%200uality/NPDES%20Coal%20Ash/Seep%20ID%20Plans/April l 6assessmentplans/Topo%20and%2
ODAP_Cliffside _04.29.2016 FINALxdf
5 The DAP and CSA also identified other continuously -flowing seeps as tributaries of the Broad River, like S-1 and
S-8, that are not receiving permit coverage. Ignoring these seeps is also erroneous, as addressed below. For the CAP
2 sampling round (September 2015), the 2B standard for mercury was also exceeded at Seep S-1.
In

No. 5:15 -CR -62-H, No. 5:1 5 -CR -67-H, No. 5:15 -CR -68-H (E.D.N.C), ¶ 22.6 As jurisdictional
waters, these seeps cannot be permitted as effluent channels.
Seeps that are jurisdictional waters of the United States cannot themselves be permitted
as effluent channels to convey pollutants to other jurisdictional waters.7 The CWA provides no
mechanism to convert such jurisdictional waters into point source discharges. The CWA
"requires permits for the discharge of `pollutants' from any `point source' into `waters of the
United States."' 40 C.F.R. § 122.1(b)(1) (emphasis added). 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. See Joint Factual Statement, ¶ 20. 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." See 33 U.S.C.
§ 1362(14) (defining point source as "any discernible, confined and discrete conveyance,
including but not limited to ... [a] channel"). In sum, jurisdictional waters cannot be point
sources; instead, water quality standards must be met in the jurisdictional waterbody, meaning in
the so-called seep.
North Carolina law incorporates the same foundational assumption—that a point source
cannot be a water of the United States. "Effluent channel means a discernable confined and
discrete conveyance which is used for transporting treated wastewater to a receiving stream or
other body of water." 15A N.C. Admin. Code 2B .0202 (emphasis added). Restated, an effluent
channel conveys wastewater to a receiving stream or body of water, the effluent channel cannot
itself be the receiving stream. But North Carolina law goes beyond the federal CWA by
prohibiting designation of an effluent channel if that channel "contain[s] natural waters except
when such waters occur in direct response to rainfall events by overland runoff." 15A N.C.
Admin. Code 2B.0228(2). "Natural waters" includes ground and surface waters. As with the
CWA, North Carolina law prohibits designation of an effluent channel if that channel contains
natural, jurisdictional surface waters. North Carolina law also prohibits designation of an
effluent channel if that channel contains groundwater. 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. The seeps identified by Duke Energy include both jurisdictional
surface water tributaries and are influenced by natural groundwater, preventing their designation
as "effluent channels." This approach cannot be implemented consistent with federal and state
law.
B. The CWA Prohibits Ignoring Point Source Discharizes.
After proposing to authorize through a paper exercise most of the seeps identified by
Duke Energy, DEQ elects to simply ignore the remaining 14 seeps. North Carolina cannot turn a
blind eye to pollutant discharges, even if it turns out they do not violate water quality standards
("WQS"). DEQ's fact statement provides little insight into this decision, stating only that the
6 Available at https://www.duke-energy.com/ /media/34a6a9fO7c39463d99cdd060358b782b.ashx
7 Although Duke Energy seeks to have these tributaries and wetlands deemed effluent channels, by its own
admission, "Duke Energy does not yet have jurisdictional determination from the US Army Corps of Engineers" as
to whether these seeps constitute jurisdictional waters of the United States. See Letter from Harry Sideris to Jeff
Poupart (April 26, 2016) (on file with DEQ).
5

seeps were excluded "based on the low concentration of the constituents associated with coal ash
and/or absence of a discharge to `Waters of the State."' Permit Fact Sheet at 8. The statement
itself conveys a fundamental misunderstanding about the CWA. To be clear, the CWA concerns
itself with any point source pollutant discharges, not just with discharges of pollutants that rise to
a level that DEQ views as problematic. "The term `discharge of a pollutant' ... means any
addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)
(emphasis added); 40 C.F.R. § 122.2. As recognized by the 4t' Circuit, the statute clearly covers
all additions, "no matter how small." W. Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d
159, 166-67 (4th Cir. 2010). Therefore, "low concentrations" of coal ash constituents do not get
a free pass under the CWA.
In addition, DEQ appears to ignore conveyance of pollutants by short hydrological
connections from groundwater to surface water. Duke Energy cannot circumvent the CWA,
however, based on a seep disappearing at the creek's edge, for example, when it reconnects with
the waterbody via a short hydrological connection. Duke Energy's description of several seeps
appears to fit this scenario, e.g., S-25 ("Water emerges from ground, flows 30 feet toward the
Broad River, and then enters a sand bank"), S-26 ("no discernible flow except for drainage at
edge of bank"). See Letter from H. Sideris to J. Poupart (March 7, 2016) (NPDES application
update, on file with DEQ). As further discussed below, Duke Energy's own studies show that
the unlined basins are discharging pollutants through surface and groundwater into the Broad
River and Suck Creek. DEQ cannot ignore seeps that are evidence of point source discharges via
groundwater. In sum, it appears DEQ has ignored 14 seeps based on an erroneous interpretation
of the law.
C. The Draft Permit Sets Inadequate Monitoring. Requirements for Seeps and Does Not
Assure Permit Modifications for New Seeps Will Comply with Public Notice
Requirements.
Even if these seeps could be properly permitted as proposed by DEQ, the proposed
conditions also set inadequate monitoring for current and future seeps, and also may bypass
notice and comment requirements. At a minimum, more frequent monitoring of seeps would be
needed to meaningfully assess compliance. The draft permit requires monthly monitoring of the
seeps only for the first year; thereafter, monitoring is required only quarterly. There is no basis
supplied for reduced frequency of sampling. This infrequent sampling is inadequate for several
reasons. First, the flow and levels of contaminants in the seeps are likely to fluctuate based on
weather and season, so four snapshots per year will make it impossible to accurately assess the
amount of pollutants discharging into the Broad River, Suck Creek, and wetlands adjacent to
Suck Creek. While DEQ has candidly admitted it would be difficult to accurately monitor the
seeps even under the best of circumstances, infrequent sampling virtually guarantees the permit's
effluent limits and flow requirements will not be enforced. Second, this arrangement makes it
easier for the polluter to pick and choose sampling conditions that it views as ideal to avoid
finding violations. It also makes identifying new seeps far less likely.
Finally, this schedule falls short of the requirements of the CWA. EPA regulations
mandate that all permit limits shall, unless impracticable, be stated as both daily maximum and
average monthly discharge limitations. 40 C.F.R. § 122.45(d). Nothing in the fact sheet
Cel

demonstrates or suggests that monthly, or even daily, monitoring of seep discharges is
impractical. For all these reasons, monitoring with increased frequency should be required.
Because Cliffside's ash basins are expected to spring new seeps and leaks, the draft
permit also tries to provide a path for Duke Energy to legitimate these future seeps. Draft Permit
Conditon A. (49). First, it is apparent that DEQ intends to perpetuate the errors already described
above for newly discovered seeps. In addition, it appears DEQ may intend to allow Duke
Energy to evade public notice and comment and the opportunity for a public hearing and for
judicial review, along with other requirements of the state NPDES permitting program, see 33
U.S.C. § 1342(b). The permit itself states that the new identified seep is not "permitted" until the
permit is modified and the new seep is included and the "new outfall is established." But DEQ
must clarify which procedures for permit modification it intends to follow for the inevitability
that new seeps will arise. Any permit modifications, of course, must comply with public notice
and comment procedures, and EPA oversight, under the CWA.B
2) The Draft Permit Fails to Account for Discharges of Wastewater Through
Hydrologically Connected Groundwater.
In addition to admitting numerous seeps and leaks discharging via surface water
connections, Duke estimates that approximately 70,000 cubic feet—over 523,000 gallons—of
contaminated groundwater is being discharged into the Broad River per day from the coal ash
impoundments at Cliffside. Cliffside Corrective Action Plan, Part 2 ("CAP 2"), App. D, at 3.
Nearly 90,000 gallons per day are being discharged into Suck Creek. Undoubtedly some of this
contaminated groundwater is also being discharged into other jurisdictional streams and wetlands
between the ash basins and Suck Creek and the Broad River, causing those tributaries to also
violate North Carolina surface water standards.
The CWA is a strict liability statute prohibiting the discharge of any pollutant to a water
of the United States without a permit. 33 U.S.C. § 1311(a). Importantly, Duke Energy cannot
evade the CWA by discharging pollutants through short, hydrological groundwater connections.
DEQ erred in ignoring this significant discharge.
EPA has stated repeatedly that the CWA applies to such hydrologically -connected
groundwater discharges. 66 Fed. Reg. 2960, 3015 (Jan. 12, 2001) ("EPA is restating that the
Agency interprets the Clean Water Act to apply to discharges of pollutants from a point source
via ground water that has a direct hydrologic connection to surface water."); accord 56 Fed. Reg.
64876-01, 64892 (Dec. 12, 1991) ("the Act requires NPDES permits for discharges to
groundwater where there is a direct hydrological connection between groundwaters and surface
waters."); 55 Fed. Reg. 47990, 47997 (Nov. 16, 1990) (announcing stormwater runoff rules and
explaining that discharges to groundwater are covered by the rule where there is a, hydrological
connection between the groundwater and a nearby surface water body).
8 EPA's regulations authorize limited administrative changes to an active permit through minor modifications, none
of which condone the addition of a new NPDES outfall through a mere administrative change by the agency. See 40
U.S.C. § 122.63.
7

In addition to EPA, "[t]he majority of courts have held that groundwaters that are
hydrologically connected to surface waters are regulated waters of the United States, and that
unpermitted discharges into such groundwaters are prohibited under section 1311." Friends of
Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1358 (D.N.M. 1995) (citations
omitted).
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.9 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." 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)). The same applies here. As discharges to Suck Creek and the Broad
River via hydrologically connected groundwater were not authorized under the current permit
(and are therefore prohibited), they should not be authorized in the revised permit.
Attempting to add it now may violate the anti -backsliding provision of the Clean Water
Act. 33 U.S.C. § 1342(0); 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 ......
Instead, DEQ should require Duke Energy to stop the discharge of contaminated
wastewater to waters of the US via hydrologically connected groundwater. Where, as here,
Duke Energy's own studies submitted to DEQ have revealed the source waste (coal ash) is
sitting in large unlined basins, submerged in groundwater, DEQ should require Duke Energy to
arrest the ongoing source of contamination.
3) The Department Cannot Issue a Permit to a Facility that is Violating Surface Water
Standards
Even if discharges of hydrologically connected groundwater could be permitted, they
cannot in this instance because discharges from the Cliffside plant are contributing to violations
of surface water quality standards.
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. 33
U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. § 122.44(a)(1), (d). An NPDES permit must assure
compliance with all statutory and regulatory requirements, including state water quality
standards. 33 U.S.C. § 1342(a)(1)(A); 40 C.F.R. § 122.43(a); 15A N.C. Admin. Code 2H.01 18.
99 See Brief for the United States as Amicus Curiae in Support of Plaintiffs -Appellees, Hawaii Wildlife Fund v.
County of Maui, at 5 (No. 15-17447, 9t' Cir.), attached as Ex. 1.

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." 15A N.C. Admin. Code 2H.01 12(c); see also N.C. Gen. Stat. §§ 143 -215.6a -c
(authorizing civil and criminal penalties and injunctive relief for violations for surface water
standards).
Discharge from the coal ash ponds is currently causing violations of surface water
standards in blue line jurisdictional streams and seeps in the location of wetlands at the Cliffside
plant, as documented by Duke Energy's own studies submitted to DEQ. Specifically, Duke
Energy's groundwater to surface water interaction model predicts that lead and thallium surface
water standards will be violated in Suck Creek as a result of the discharge of coal ash -
contaminated groundwater into the stream. Cliffside CAP 2 at 32. Sampling data confirms that
lead standards are being violated as well as standards for aluminum and copper. Id.
Contamination of these surface waterbodies negatively impacts ecological health. Duke
Energy's CAP 2 evaluated the ecological risk to "ecological receptors," chosen as surrogates for
the range of receptors in given habitat. At Cliffside, "[a]quatic receptors include fish, benthic
invertebrates, aquatic birds (represented by mallard duck and great blue heron), and aquatic
mammals (represented by muskrat and river otter). Terrestrial receptors include birds,
represented by American robin and red-tailed hawk, and mammals, represented by meadow vole
and red fox." Cliffside CAP 2 at 41. Four potential exposure pathways were identified in the
CAP 2. Unsurprisingly, the impact to wildlife in the areas surrounding Cliffside was significant,
especially in the vicinity of Suck Creek.
Specifically, "along Suck Creek between the steam station and the active ash basin, risks
are above risk targets for aluminum for the muskrat and meadow vole, and are above risk targets
for copper, manganese, selenium, and vanadium for the heron." Cliffside CAP 2 at 42. Risk was
evaluated using hazard quotients with any quotient above 1 being "above target." In Suck Creek,
risk of aluminum exposure to the meadow vole was given a hazard quotient of 81 and the risk of
aluminum exposure to the muskrat was given a 42. Exposure of vanadium in Suck Creek
received a hazard quotient of 21 for great blue heron. Id. These risks are significantly above
target and have likely been causing adverse impacts to wildlife for decades.
Furthermore, in light of the existing violations of water quality standards in Suck Creek,
the new instream monitoring required in the permit is grossly inadequate and should at least be
meaningful enough to ascertain future compliance in light of existing studies and sampling. See
Draft NPDES Permit, Condition A. (30). First, the permit does not require sampling for
aluminum or thallium, two pollutants that can be expected to violate water quality standards
based Duke Energy's on sampling and modeling. So too, the sampling should include any
additional pollutants that have exceeded standards in the seeps draining from the active ash
basin. See CAP, Figures 2-2 and 2-3, CSA Table 7-9. Second, the permit requires sampling
only twice a year; it is unclear how such infrequent monitoring will meaningfully track pollutant
loading in a creek that receives 90,000 gallons per day of contaminated groundwater. It should
at least be sampled as frequently as any "seepage outfalls" on Suck Creek. Finally, the upstream
location proposed for sampling is only 100 feet from outfall 132; that is not'sufficiently upstream
to reflect a sample unimpacted by the ash basin.
9

Even an improvement in this half-hearted instream sampling effort, though, will not
address the root problem. To the extent the violation in Suck Creek is being caused by
wastewater hydrologically connected through groundwater, we are aware of no technology
which would remedy an ongoing violation of surface water quality standards and "ensure
compliance with applicable water quality standards," except removal of the waste source.
Regardless, the discharge cannot be permitted as long as surface water quality standards are
violated in Suck Creek.
4) The Draft Permit Violates Requirements Applicable to Surface Waters Classified as
Critical Areas.
The Cliffside plant is located in a WS -IV "critical area." See Permit Fact Sheet at 1.
"Critical area means the area adjacent to a water supply intake or reservoir where risk associated
with pollution is greater than from the remaining portions of the watershed." 15A N.C. Admin.
Code 2B .0202(20). All waters within a critical area "shall meet the Maximum Contaminant
Level concentrations considered safe for drinking, culinary, or food-processing purposes that are
specified in the national drinking water regulations and in the North Carolina Rules Governing
Public Water Supplies." 15A N.C. Admin. Code 2B .0216(2). Those limits must be met in the
Broad River, Suck Creek, and their tributaries. "Sources of water pollution that preclude any of
these uses on either a short-term or long-term basis shall be considered to be violating a water
quality standard." Id. Based on surface water samples collected by Duke Energy, it appears that
the Cliffside plant is currently violating this standard. Unless the "source[] of water pollution" is
removed, the Cliffside plant may violate this standard in perpetuity, preventing it from being
permitted in compliance with North Carolina law.
5) The Reasonable Potential Analysis is Inadequate.
The reasonable potential analysis completed as part of the permit renewal is inadequate
because 1) it does not assess the impact of wastewater discharged through hydrologically
connected groundwater and 2) the reasonable potential analysis is not performed for all
jurisdictional waters receiving polluted discharge, nor for all pollutants of concern.
Reasonable potential analysis seeks to determine "whether a discharge causes, has the
reasonable potential to cause, or contributes to an in -stream excursion above a narrative or
numeric criteria within a State water quality standard." 40 C.F.R. § 122.44(d)(1)(i) (emphasis
added). As mentioned previously, Duke Energy is discharging approximately 523,000 gallons
per day of contaminated groundwater into the Broad River from the coal ash impoundments at
Cliffside. Cliffside CAP 2, App. D, at 3. Nearly 90,000 gallons per day are being discharged
into Suck Creek. This significant discharge does not appear to have been included in the
Department's reasonable potential analysis. The Department must redo its analysis incorporating
the hydrologically connected discharge to more accurately determine if there is a reasonable
potential to violate or contribute to a violation of surface water quality standards. This is
particularly important for Suck Creek, which, Duke Energy's own sampling has found violates
water quality standards.
10

The Department's reasonable potential analysis also appears to have incorrectly focused
its analysis only on a contravention of water quality standards in Suck Creek and the Broad
River, without assessing compliance in streams and wetlands. The Department cannot ignore
other jurisdictional waters of the United States, including tributaries and wetlands receiving
polluted discharges, for purposes of determining reasonable potential to violate surface water
standards. For any tributaries or wetlands being impacted by wastewater contaminated with coal
ash, the Department must determine if the discharge "causes, has the reasonable potential to
cause, or contributes to an [] excursion above a narrative or numeric criteria within a State water
quality standard" within the jurisdictional stream. 40 C.F.R. § 122.44(d)(1)(i). There is no
authority for the Department to ignore discharges to jurisdictional streams. Additional
reasonable potential analysis should include, at a minimum, tributaries coinciding with S-3, S-6,
and wetlands in the area of 5-14, 5-15, 5-16, 5-21, at the toe of Suck Creek dam, and wetlands in
the area of S-2, 5-17, S-18, S-19, S -19a. See CAP 1 Figs. 1-5, 2-2. Sampling in these tributaries
and wetlands already indicates ongoing impacts from the ash basins. Concentrations in samples
from seep S-6 have exceeded relevant surface water 2B standards, 21, and/or IMAC groundwater
standards for boron, cobalt, iron, manganese, and vanadium. Concentrations in samples from
seep S-3 have exceeded relevant standards for cobalt, iron, manganese, sulfate, thallium and total
dissolved solids. Concentrations in seeps discharging from the active ash basin (upstream toe,
adjacent to Suck Creek) have exceeded North Carolina surface water standards (2B) and 2L
and/or IMAC groundwater standards (e.g., arsenic, chromium, iron, lead, manganese, nickel,
selenium, and vanadium. CAP 1 Figs. 2-2 and 2-3, CSA Table 7-9). The reasonable potential
analysis must be expanded to these water bodies, to determine whether the discharge has the
potential to contribute to an exceedance of narrative or numeric standards.
Finally, although Outfall 002 includes a limit for thallium based upon reasonable
potential to violate water quality standards, no such limit is included during Outfall 002 during
dewatering. This limit must be carried through to dewatering, especially considering thallium
has also been identified by Duke Energy as a contaminant escaping through seeps and a
contaminant expected to exceed water quality standard violations in Suck Creek from
contaminated groundwater. Also specific to Outfall 002 dewatering, the condition related to net
turbidity must be revised to protect water quality in the receiving stream. Note 8 to Condition
A.(3) for dewatering states that "net turbidity shall not exceed 50 NTU ... measured by the
difference between the effluent turbidity and the background turbidity." Allowing a 50 NTU
increase over background conditions does not protect water quality in the Broad River. Instead,
this term must be revised to reflect water quality in the receiving stream, which DEQ has already
done in the Sutton NPDES permit: "The discharge from this facility shall not cause turbidity in
the receiving stream to exceed 50 NTU. If the instream turbidity exceeds 50 NTU due to natural
background conditions, the discharge cannot cause turbidity to increase in the receiving stream."
NPDES Permit Modification NC0001422 (Dec. 7, 2015) Condition A.(2) note 5.
6) The Permit Fails to Impose Sufficiently Stringent Technology Based Effluent
Limitations.
DEQ's proposed draft permit falls short of the duty to impose technology-based effluent
limits ("TBELs") on the pollutants being discharged at the Cliffside plant. The CWA requires
this NPDES permit to include limits that reflect "the minimum level of control that must be
11

imposed in a permit." 40 C.F.R. § 125.3. In other words, the Cliffside permit must include
TBELs that reflect the pollution reduction achievable by "application of the best available
technology economically achievable" ("BAT"). 40 CFR § 125.3(a)(2)(iii)-(v). Whether or not
Duke Energy implements the specific technology determined to be the BAT, it must comply with
the effluent limitations that could be achieved by the BAT. The BAT sets a stringent treatment
standard that requires "elimination of discharges of all pollutants if... such elimination is
technologically and economically achievable." 33 U.S.C. § 1311(b)(2)(A). Technology-based
permit limits are derived from one of two sources:
(1) national effluent limitation guidelines ("ELGs") issued by EPA, 33 U.S.C. § 1314(b),.or
(2) case-by-case determinations using the "best professional judgment" ("BPJ") of permit
writers (33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3), when EPA has not issued an ELG
for an industry or the ELG does not apply to certain pollutants. 40 C.F.R. § 125.3(c)(2),
(3) (when ELGs "only apply to ... certain pollutants, other aspects or activities are
subject to regulation on a case-by-case basis"). 10
EPA's current effluent limitation guidelines (ELGs) for coal-fired power plants do not
define the treatment that is "technologically and economically achievable" for most of the waste
streams relevant to the Cliffside permit.11 That does not, however, alleviate DEQ's
responsibility to apply technology-based effluent limits, using BPJ, for pollutants not addressed
in an ELG. DEQ neglects to include limits for many toxic pollutants (arsenic, selenium,
cadmium), using BPJ. The requirement for TBELs is a critical part of moving polluters towards
eliminating pollutant discharges based upon achievable reductions and cannot be overlooked.
North Carolina regulations require that "[a]ny state NPDES permit will contain effluent
limitations and standards required by ... the Clean Water Act which is hereby incorporated by
reference including any subsequent amendments and editions." 15A N.C. Admin. Code 2H
.0118.
A. Effluent Limitations Must be Added to the Draft Permit.
In this case, DEQ must add limits for additional pollutants. DEQ's fact sheet lists
several pollutants that are discharged by Duke Energy through its ash pond outfall (002), but
then fails to apply any limit on the discharge, much less a technology-based limit. This includes
cadmium, selenium, arsenic, mercury, silver and nickel—all priority pollutants only subject to
monitoring requirements in the draft permit. For silver and nickel, for example, the permit writer
determined there was "no ELG for these parameters ... and no reasonable potential to exceed
wqs." Permit Fact Sheet, Table 4. Under the same reasoning, Outfall 002 (ash basin) contains
no limits or monitoring for other pollutants, like lead and sulfates, which have RPA limits at seep
outfalls. This is particularly striking for lead, which has exceeded water quality standards in
Suck Creek, according to Duke Energy. Cliffside CAP 2 at 32. The fact sheet gives no
10 When applying BPJ "[i]ndividual judgments []take the place of uniform national guidelines, but the technology-
based standard remains the same." Texas Oil & GasAss'n v. U.S. E.P.A., i61 F.3d 923, 929 (5th Cir. 1998). In
other words, the DWR must operate within strict sideboards when identifying BAT based on BPJ.
11 EPA issued recently ELGs for the steam electric industry, 80 Fed. Reg. 67894, November 3, 2015 (the "ELGs"),
which are addressed below.
12

indication of any attempt to determine BAT in the absence of an ELG for any of these
parameters.
There are two steps in determining BAT under these circumstances. First, the permit
writer must assess what technologies are "available." Second, the permit writer must assess
which of the available technologies are economically achievable. The technology that obtains
the highest reduction in pollutants and is also economically achievable is the BAT.12 DEQ must
complete these steps and assign additional limits at outfalls, including for Outfall 002—luring
normal operations and dewatering 13—as well as the seep outfalls (the seep permitting approach
is problematic for several additional reasons discussed elsewhere). Furthermore, to ensure
compliance with the North Carolina Total Maximum Daily Load for mercury, mercury limits
must be added to all outfalls.
B. The Department Has Not Justified Extended Deadlines for Compliance with New
Effluent Limitations.
As the Department recognizes, see Permit Fact Sheet at 2, new federal rules establish
technology-based effluent limitations on the discharge of pollutants in fly ash transport water,
bottom ash transport water, and wastewater from flue gas desulphurization ("FGD") systems,
which must be met "as soon as possible beginning November 1, 2018, but no later than
December 21, 2023." 40 C.F.R. § 423.12(h), (k), (g). Despite the presumption that the rule is
effective November 1, 2018, the Department proposes to grant Duke's request to continue
dumping FGD wastewater until the last possible date, December 21, 2023—more than six years
from now and beyond the expected expiration date of this draft permit. Similarly, DEQ appears
to accept Duke Energy's request to continue dumping wet -sluiced bottom through December 31,
2020, over four years from now. See Draft NPDES Permit, Conditions A. (1), A. (5.).
In delegating state permitting authorities the responsibility of determining when the new
limits will apply, EPA presumes that the "as soon as possible" date is November 1, 2018, "unless
the permitting authority establishes a later date, after receiving information from the discharger."
40 C.F.R. § 423.11(t). Any determination that a later date is appropriate must be well-
documented and reflect consideration, at a minimum, of the specific factors set forth in EPA's
regulations. See id. To be clear, the phrase "as soon as possible" means November 1, 2018,
unless the permitting authority establishes a later date after receiving information from the
discharger and after making an independent judgment regarding the appropriateness of an
extended compliance timeline. 80 Fed. Reg. at 67883. Indeed, "even after the permitting
12 The initial determination under BAT, technological availability, is "based on the performance of the single best -
performing plant in an industrial field." 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"). In
short, if the technology is being utilized by any plant in the industry, it is available. 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").
13 The dewatering conditions for Outfall 002 list the chromium limit twice in error and may indicate a different limit
that DEQ intended to carry through to dewatering. At a minimum, all of the limits from Outfall 002 during normal
operations should apply during the more intense dewatering phase, including the limits applicable during chemical
metal cleaning (iron, copper), because chemicals associated with that process may have settled into the ash basin and
be discharged at higher concentrations through interstitial water.
13

authority receives information from the discharger, it still may be appropriate to determine that
November 1, 2018, is `as soon as possible' for that discharger." Id. at 67883, n.57.
Importantly, EPA encourages permitting authorities to "provide a well-documented
justification for how [they] determined the `as soon as possible' date in the fact sheet or
administrative record for the permit," and to "explain why allowing additional time to meet the
limitations is appropriate," if that is the authority's conclusion. See U.S. EPA, Technical
Development Document for the Effluent Limitations Guidelines and Standards for the Steam
Electric Power Generating Point Source Category (Sept. 2015), at 1411. Here, DEQ has neither
explained why allowing additional time for compliance- is appropriate nor provided any
documentation of its justification for additional time. See Permit Fact Sheet at 3 (bottom ash), 6
(FGD wastewater). Instead, DEQ merely offers perfunctory, non -explanatory statements for the
extension of compliance deadlines for limits. For FGD wastewater, DEQ offers only: "Duke
requested a compliance schedule to evaluate, install and test a new treatment system with a
proposed compliance date of December 31, 2023. The permit will require compliance by this
date." Permit Fact Sheet at 6. For bottom ash, the fact sheet lacks even this statement, offering
only that "Duke has submitted the following proposed schedule: Bottom ash: December 31,
2020." This date that then gets incorporated into the permit.. Id. at 3. Merely reciting that Duke
Energy requested the extension beyond'November 1, 2018, is not a "well-documented
justification."
In addition, there is ample evidence suggesting a sooner compliance date would be
possible. According to EPA, "plants typically have one or two planned shut -downs annually and
[] the length of these shutdowns is more than adequate to complete installation of relevant
treatment and control technologies." 80 Fed. Reg. at 67854, n.27. There are several examples of
plants that have completed fly and bottom ash conversion projects in less than three years,
including Duke Energy's own Mayo Plant. See Duke Energy Progress, Inc., Mayo Steam
Electric Generating Plant, Quarterly Progress Report (January — March 2015) ("Dry bottom ash
handling system began construction on December 14, 2012. As of March 31, 2014, construction
of this system was 100% complete."). At the South Carolina Electric & Gas Company Wateree
plant, conversion to a closed-loop bottom ash handling system was completed in two and a half
years. See Final Notes from Site Visit at South Carolina Electric & Gas Company's Wateree
Station on January 24, 2013, EPA -HQ -OW -2009-0819-1917, at 2. In comments filed on the
proposed rule, UWAG provided a case study of a >850 MW unit converting from wet handling
to dry handling, in which the total time required from the start of conceptual engineering was 30-
36 months. See Comment submitted by Elizabeth E. Aldridge, Hunton & Williams on behalf of
Utility Water Act Group (UWAG), EPA -HQ -OW -2009-0819-4655, at 84-85 & Att. 11.14 For
FGD wastewater treatment systems, the American Public Power Association has estimated that
installation could be completed in six to eight months. See Comment submitted by Theresa
Pugh, Director of Environmental Services and Alex Hofmann, Energy and Environmental
Services Manager, American Public Power Association (APPA), EPA -HQ -OW -2009-0819-
5140, at 37. At Duke's Mayo Plant, a partial zero liquid discharge system for FGD wastewater
was completed in approximately two years. See Duke Energy Progress, Inc., Mayo Steam
Electric Generating Plant, Quarterly Progress Report (January — March 2015) ("The partial Zero
14 Available at https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-RCRA-2013-0209-
0034&attachmentNumbel=1 &disposition=attachment&contentType=zpdf.
14

Liquid Discharge system for FGD wastewater began construction on January 28, 2013. As of
March 31, 2015, construction of this system was 100% complete.")
Duke Energy has been aware of the need to comply with the new effluent limits since at
least September 2015—when the final federal,rules were published—and should already have
begun evaluating what changes would be needed at Cliffside and its other plants. As EPA stated
in September 2015: "Regardless of when a plant's NPDES permit is ready for renewal, the plant
should immediately begin evaluating how it intends to comply with the requirements of the final
ELGs. In cases where significant changes in operation are appropriate, the plant should discuss
such changes with the permitting authority and evaluate appropriate steps and a timeline for the
changes, even prior to the permit renewal process." 80 Fed. Reg. at 67882-83 (emphasis added).
Moreover, EPA's final effluent limits for FGD and coal ash transport water were also contained
in the proposed rule issued June 7, 2013—on which proposal Duke submitted comments. In
2014, Duke Energy reported that "[m]ost, if not all, of the steam electric generating facilities the
Duke Energy Registrants own are likely affected sources [and that] [r]equirements to comply
with the final rule may begin as early as late 2018 for some facilities," Duke Energy, 2014
Annual Report and Form 10-K at 59. Duke Energy has for years been on notice of the
impending need to upgrade wastewater treatment at its plants.
With respect to bottom ash transport water, North Carolina law requires Duke Energy to
convert to the dry handling of bottom ash by December 31, 2019. Allowing for the continued
discharge of pollutants in bottom ash transport water after that date cannot be justified. Duke
Energy does not explain its claimed need for a "12 month window to optimize the system." See
Duke Energy Carolina, Supplemental Information Package (August 31, 2016) at 4. DEQ has
offered no evidence that it has scrutinized or verified this claim. Moreover, Duke Energy has
known that dry ash handling would be required since September 2014, when the Coal'Ash
Management Act was passed. Accordingly, it should have commenced design of the systems
needed to comply with that requirement years ago.
7) The Proposed Permit Violates North Carolina's Groundwater Rules
A. DEQ Must Impose Conditions To Prevent Further Groundwater Contamination
Because groundwater contamination is at or beyond the compliance boundary at
Cliffside, the state groundwater rules prohibit DEQ from issuing the proposed NPDES permit for
the Cliffside active ash basin.
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." 15A N.C. Admin. Code 2L .0103(b)(2). This prohibition applies to the
Cliffside permit. The draft permit states on its face that it is issued "in compliance with the
provisions of North Carolina General Statute 143-215.1." Draft NPDES Permit at 1. The
Cliffside coal ash basin is a qualifying "disposal system" for purposes of the Groundwater Rule
with a compliance boundary set by the rule. 15A N.C. Admin. Code 2L .0 107. Because DEQ
issues this permit under authority delegated by the EMC in 15A N.C. Admin. Code 02A .0 105,
this prohibition applies to DEQ as well.
15

There is an extensive history of documented groundwater contamination at the
compliance boundary at Cliffside. Duke Energy's monitoring data, recently reported to the state,
has shown exceedances for antimony, boron, chromium, cobalt, iron, manganese, sulfate, total
dissolved solids, and vanadium in its compliance boundary monitoring wells. The majority of
these exceedances represent violations, based upon Duke's own over-estimated background
concentrations. Douglas J. Cosler, Ph.D., P.E., Amended Expert Report, at 12 (Apr. 13, 2016)
(36 of the 62 Compliance Boundary exceedances were greater than the proposed provisional
background concentrations (PPBC) by HDR), attached as Ex. 2. In its enforcement case, DEQ
alleged under oath numerous exceedances of the 2L standards at the Cliffside plant. Complaint
at ¶¶ 57-63. On this record, DEQ cannot reissue a permit for a failing wastewater treatment
system without imposing new conditions to correct this long track record of groundwater
contamination. Because this disposal system is already resulting 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.
Similarly, the Groundwater Rule bars the EMC (and DEQ acting on delegated authority)
from approving an NPDES permit that would result in "the impairment of existing groundwater
uses or increased risk to the health or safety of the public due to the operation of a waste disposal
system." 15A N.C. Admin. Code 2L .0103(b)(3). DEQ has already found Duke Energy's
studies deficient, so far, to show its migrating coal ash pollution is not a threat to nearby water
supply wells (receptors). In its February 2015 letter providing conditional approval for Duke
Energy's Groundwater Assessment Plan, DEQ warned Duke Energy that the plan did "not
provide a clear, cohesive description of how constituents of potential concern (COPCs) may
migrate from the source(s) to the receptors through various pathways. ,15 In a draft letter
highlighting deficiencies in Duke Energy's CSA for the Cliffside plant, the content of which
DEQ staff'communicated verbally to Duke Energy and its consultants at several meetings held
for that purpose, DEQ was similarly clear that the CSA Report "fails to fully explain the factors
affecting the occurrence, movement, and transport of constituents that exceed groundwater
quality standards as required by CAMA § 130A-309.211."16 The real-world data collected at the
Cliffside site, in sharp contrast to the artificially constrained modeling by Duke Energy's
consultant, confirm what common sense predicts: that residential wells pumping water out of the
ground within a few hundred feet of the Cliffside coal ash disposal areas are at risk from Duke
Energy's coal ash contamination. See Douglas J. Cosler, Ph.D., P.E., Amended Expert Report, at
15-17, attached as Ex. 2.
B. DEQ Must Define Compliance and Review Boundaries and Require Groundwater
Monitoring Pursuant to the Groundwater Rule.
The Groundwater Rule directs that "[t]he [compliance] boundary shall be established by
the Director, or his designee at the time of permit issuance." 15A N.C. Admin. Code 02L
" Feb. 24, 2015 NCDENR Letter Conditional Approval of Revised Groundwater Assessment Work Plan for the
Cliffside Steam Station, at 1.
" Sept. 18, 2015 NCDENR Draft Letter Comprehensive Site Assessment Comments for the Cliffside Steam Station,
at 3.
16

.0107(c) (emphasis added). The draft permit as distributed to the public for comment includes
no map designating a compliance boundary for the Cliffside facility. However, Duke Energy has
previously misdrawn its compliance boundary to extend onto property it owns on the other side
of the Broad River. For example, in its Topographic Map and Discharge Assessment Plan
submitted to DEQ pursuant to CAMA (dated April 29, 2016), the attached figure 2 shows the
compliance boundary around the active ash basin on the opposite site of the Broad River from
the ash basin discharge. 17 See supra; see also Cliffside CAP 2, Fig. 2-2 (extending compliance
boundary across river). As one might surmise, this runs contrary to the law.
The riverbed of the Broad River is not under "common ownership" with Duke Energy's
power plant because the Broad River belongs to the people of North Carolina. Duke Energy's
maps assert ownership of the submerged lands beneath the Broad, River at Cliffside. See
Cliffside CSA, Fig. 4-6. Those maps suggest that the property boundary of the lands on either
side of the river (Duke Energy owns parcels on both opposing riverbanks) extends to the
centerpoint of the river. But Duke has no rightful claim of ownership to these submerged lands,
which belong to the state of North Carolina as a matter of law. In North Carolina, "state lands"
are defined as "all land and interests therein, title to which is vested in the State of North
Carolina, or in any State agency, or in the State to the use of any agency, and specifically
includes all ... submerged lands." N.C. Gen. Stat. § 146-64(6) (emphasis added). Submerged
lands generally may not be conveyed in fee, though the state may grant easements therein, N.C.
Gen. Stat. § 146-3(1), and may not be adversely possessed, N.C. Gen. Stat. § 1-45.1. Submerged
lands are "[s]tate lands which lie beneath ... [a]ny navigable waters within the boundaries of this
State." N.C. Gen. Stat. § 146-64(7)(a).18
Even if Duke Energy could theoretically own a navigable riverbed, the law still will not
allow it to co-opt the Broad River into its compliance boundary. The General Assembly has
clarified that "[m]ultiple contiguous properties under common ownership" may be treated as a
single property for purposes of drawing the compliance boundary, but only if they are "permitted
for use as a waste disposal system." See 2013 N.C. Sess. Laws 413, § 46(a) (amending N.C. Gen.
Stat. § 143-215.1(i)). Duke Energy cannot claim, and DEQ cannot, as a matter of federal law
incorporate, the Broad River (a water of the US) into Duke Energy's "waste disposal system."
Even Duke Energy delineates the waste boundary within the perimeter of its active ash basin
impoundment (Cliffside CSA, Fig. 2-2) and does not suggest it can deposit its coal ash directly in
the Broad River.
DEQ must specify a compliance boundary for the Cliffside plant that complies with the
requirements of North Carolina law and facilitates credible measurement of groundwater
compliance. To meet that task, the compliance boundary cannot be beneath a surface water
17 This map correctly reflects that there is no compliance boundary around the unpermitted inactive 5 ash basin.
18 Ownership of these submerged lands turns on the definition of "navigability," which is in turn defined by state
law. The test for navigability in North Carolina is whether a body of water is "navigable in fact." Gwathmey v.
State ex rel. Dept ofEnv't, Health, & Natural Res., 342 N.C. 287, 299,464 S.E.2d 674, 681 (1995); see N.C. Gen.
Stat. § 146-64(4) ("`Navigable Waters' means all waters which are navigable in fact"). "[I]f a body of water in its
natural condition can be navigated by watercraft, it is navigable in fact and, therefore, navigable in law, even if it has
not been used for such purpose." Gwathmey, 342 N.C. at 301. "[N]avigability in fact by useful vessels, including
small craft used for pleasure, constitutes navigability in law." Id. at 300.
17

body. If that boundary were drawn correctly, it would be even closer to Duke Energy's coal ash
in the active ash basin, at a location where meeting groundwater standards will continue to
require removing the buried waste.
Finally, the permit must be amended to impose a robust groundwater monitoring program
that complies with the requirements of the Groundwater Rule. Currently the draft permit states
only that "[t]he permittee shall conduct groundwater monitoring to determine the compliance of
this NPDES permitted facility with the current groundwater standards ... in accordance with the
sampling plan approved by the Division. See Attachment 1." Draft Permit Condition A. (47.).
But no "Attachment 1" is provided for public comment. Historically, DEQ has required Duke
Energy to monitor groundwater contamination only at the compliance boundary. But the
Groundwater Rule requires more. All lands within a compliance boundary carry the Restricted
Designation under the Groundwater Rule; and all lands carrying the Restrict Designation must
have a "monitoring system sufficient to detect changes in groundwater quality within the RS
designated area." 15A N.C. Admin. Code 02L .0104(b), (d). Under the Groundwater Rule, it is
not enough to monitor at the compliance boundary to confirm violations after they happen; rather
Duke Energy must monitor groundwater within the RS -designated compliance boundary to
detect when "contaminant concentrations increase" so that "additional remedial action or
monitoring" can be required if necessary. Id. at .0104(d).
8) DEQ Cannot Re -issue a Permit with Ongoing Violations of the Removed Substances
Provision.
The draft permit would designate a new category of "seep outfalls" designed to allow
Duke Energy to operate a wastewater treatment system that leaks pollutants at locations other
than its permitted "Outfall 002 — Ash Basin" discharge point. As discussed above, by definition,
these leaks do not discharge through the permitted outfall structures, which include risers
designed to ensure that settled pollutants remain in the lagoons and water is discharged from the
top of the lagoon to the outfall discharge pipes. This change in policy impermissibly erodes a
longstanding standard condition applicable to the existing permit, the draft permit, and other
similar NPDES permits. Both the draft permit and the existing permit include an important
standard condition in Part II, known as the Removed Substances provision which provides:
"Solids, sludges ... or other pollutants removed in the course of treatment or
control of wastewaters shall be utilized/disposed of... 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."
Part 11.C.6 (emphasis added). 19
This common-sense provision prohibits pollutants removed by waste treatment facilities
from escaping out into surface and groundwater. As such, the provision is an essential
implementation of state policy and good practice requiring pollutants removed from wastewater
19 Available on DEQ's website at http://portal.nedenr.org/c/document library/get_file?uuid=b32f8a66-541c-4cf5-
8ba6-03e381edb2da&groupId=38364.
In

through the operation of a wastewater treatment plant not to be summarily discharged into
waters, in frustration of the core purpose of the state and federal pollution control programs.
Duke Energy's own analysis has revealed that coal ash at Cliffside — the "removed
substance" — is sitting as much as 60 feet below the groundwater table, and its own models
predict up to 50 feet worth will remain submerged after dewatering. Duke Energy,
Comprehensive Site Assessment Figures (geologic cross sections) [specific citation]; Duke CAP
1, part I (cap -in-place simulations). Groundwater is a water of the State. N.C. Gen. Stat. § 143-
212(6). Coal ash is a "pollutant" regulated under the Clean Water Act. See supra. The
Department cannot authorize this ongoing violation of an existing permit term by purporting to
issue a new permit with identical terms while the facility is in violation of the existing permit.
The Department must require Duke Energy to remove the "removed substances" from the waters
of the State.
9) The Proposed 12 -Mile Mixing Zone for Thermal Discharges Requires a Thermal
Variance
The draft permit purports to put Duke Energy's "point of compliance" for meeting the
North Carolina's water quality standard for temperature 12 miles downstream at the "North
Carolina /. South Carolina state line." E.g., Draft NPDES Permit, Condition A. (33). The draft
permit does this by granting Duke Energy a "mixing zone" to assimilate thermal discharges in
the Broad River that is 12 miles long, for purposes of achieving an ambient temperature of 32
degrees C (89.6 degrees F), which itself is defined in the permit as a weekly average. 20 The fact
sheet then suggests that a thermal variance "is no longer necessary," and so does not require
Duke Energy to justify a renewed variance for a permit. Permit Fact Sheet at 11. This, on its
face, would allow Duke Energy to exceed the state's instantaneous temperature standard
anywhere in a 12 -mile stretch of river, so long as a weekly average is obtained at the state line,
without any demonstration that this would protect water quality in the Broad River.
It appears DEQ believes it can circumvent the thermal variance procedure under the
CWA by authorizing a 12 mile "mixing zone" for Duke Energy to meet the instantaneous water
quality standard for temperature. Of course, this is not correct. North Carolina's applicable
temperature standard provides that temperature "in no case" will exceed 32 degrees C (89.6
degrees F) for lower piedmont and coastal plain waters. 15A N.C. Admin. Code 02B .0211.
Departure from this limit is allowed on a "case-by-case" basis and in a "reasonable portion of the
waterbody," but only through a thermal variance procedure under 316 (a) of the CWA, which is
the federal thermal variance requirement. See 15A N.C. Admin. Code 02B .0208.
DEQ has no authority to ascribe a giant "mixing zone" to assimilate thermal discharge in
the Broad River, to avoid this required variance procedure from an instantaneous state water
quality standard. EPA's own NPDES Permit Writers Manual is clear that "the use and size of
the mixing zone must be limited such that the waterbody as a whole will not be impaired and
such that all designated uses are maintained ...." (6.2.5.2 Mixing Zone Size) (emphasis added).
20 E.g., Condition A. (1) (n.1 l: "temperature mixing zone is defined as the area extending from the intake of the
power plant to approximately twelve (12) miles downstream ...."), (n.12: "The ambient temperature shall be
defined as the weekly average downstream water temperatures").
19

The specific examples given are a "specific geometric shape" around an outfall and spatial
limitations, like "1/4 of the stream width and 1/4 mile downstream." Similarly North Carolina's
regulations require a mixing zone to be drawn so that it does not result in acute toxicity,
offensive conditions, undesirable aquatic life or result in a dominance of nuisance species outside
of the assigned mixing zone, or endangerment to the public health or welfare. 15A N.C. Admin.
Code 02B .0204. DEQ has provided no justification for a mixing zone of 12 miles long (aka, the
whole waterbody for several miles) to meet an instantaneous temperature standard, nor could it.
The purported "mixing zone" here is a de facto variance from the temperature standard which
must comport with Section 316(a) of the CWA.
Section 316(a) of the Clean Water Act provides narrow authority for a variance from
water quality standards for temperature, to wit, but only when such effluent limits are "more
stringent than necessary to assure the protection and propagation of a balanced, indigenous
population of shellfish, fish, and wildlife." 33 U.S.C. § 1326(a). EPA regulations define a
balanced, indigenous population as "a biotic community typically characterized by diversity, the
capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain
species and by a lack of domination by pollution tolerant species." 40 C.F.R. § 125.71(c). An
industrial discharger seeking a § 316(a) temperature variance bears the burden of demonstrating
both (1) that effluent limits otherwise required by the CWA are "more stringent than necessary"
to protect the balanced, indigenous population and (2) that the thermal discharge allowed by such
a variance will protect the balanced, indigenous population in the future. See 33 U.S.C. § 1326;
40 C.F.R. § 125.73(a) (the applicant must demonstrate that water quality standards are more
stringent than necessary); In Re Dominion Energy Brayton Point, 12 E.A.D. 490, 552 (2006)
(EPA Environmental Appeals Board held that § 1326(a) and EPA regulations "clearly impose
the burden of proving that the ... thermal effluent limitations are too stringent on the discharger
seeking the variance").
Duke Energy must seek a 316(a) variance and submit a BIP demonstration showing that
the cumulative impact of its thermal discharge has not caused a shift toward pollution tolerant
species in Broad River or contributed to violations of other water quality standards before it can
be granted permission to exceed the WQS for temperature in the Broad River .21 Duke Energy
has failed to make any demonstration to support any variance from meeting WQS for
temperature, much less a 12 -mile one. Absent a meritorious demonstration, Duke Energy must
comply with water quality standards for temperature throughout the Broad River.
21 As we have stated in prior comments to DEQ, only the EMC can issue a variance from the temperature standard
and the EMC as currently constituted cannot do so. To administer the Clean Water Act pursuant to delegated
federal authority, the state "board or body which approves all or portions of permits shall not include as a member
any person who receives, or has during the previous 2 years received, a significant portion of income directly or
indirectly from permit holders or applicants for a permit." 40 C.F.R. § 123.25(c). A permit cannot issue in this
instance because the delegated permitting authority, the EMC NPDES Committee, cannot meet its regulatory
requirements for non -conflicted members.
20

10) Conclusion
The draft permit is inconsistent with the requirements of North Carolina and federal law.
The permit must be withdrawn, rewritten, and reissued for the public to comment on an NPDES
permit that protects water quality and the public interest.
Si y,
Thomas Lodwick
Austin DJ Gerken
Amelia Y. Burnette
Patrick Hunter
Southern Environmental Law Center
22 South Pack Square, Suite 700
Asheville, NC 28801
828,-258-2023
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for
MountainTrue
Julie Mayfield
Hartwell Carson
29 N Market Street, Suite 610
Asheville, NC 28801
Phone: [phone]
cc:
Gina McCarthy, EPA Administrator
Heather McTeer Toney, Regional Administrator, Region 4
21

Exhibit 1

Case: 15-17447, 05/31/2016, ID: 9997388, DktEntry: 40, Page 1 of 45
No. 15-17447
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAWAII WILDLIFE FUND; SIERRA CLUB -MAUI GROUP;
SURFRIDER FOUNDATION; WEST MAUI
PRESERVATION ASSOCIATION,
RECEIVEDINCDEOAMYR
Plaintiffs -Appellees,
0
COUNTY OF MAUI,
Defendant -Appellant.
On Appeal from the U.S. District Court, Dist. of Hawaii
No. 12-cv-198, Hon. Susan Oki Mollway, District Judge
NOV 14 2016
Water Quality on
Permitting
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFFS APPELLEES
OF COUNSEL:
KARYN WENDELOWSKI
U.S. Environmental
Protection Agency
Office of General Counsel
Washington, D.C.
JOHN C. CRUDEN
Assistant Attorney General
AARON P. AVILA
R. JUSTIN SMITH
FREDERICK H. TURNER
Attorneys, U.S. Dep't of Justice
Env't & Natural Resources Div.
P.O. Box 7415
Washington, DC 20044
[phone]
[e-mail]

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TABLE OF CONTENTS
TABLE OF AUTHORITIES.................................................................... iii
INTEREST OF THE UNITED STATES..................................................1
ISSUES PRESENTED..............................................................................2
STATEMENT OF THE CASE.................................................................. 3
I. STATUTORY BACKGROUND .......................... :...................................... 3
II. FACTUAL BACKGROUND................................................................... 6
III. PROCEDURAL BACKGROUND............................................................. 7
SUMMARY OF ARGUMENT.................................................................10
ARGUMENT...........................................................................................13
I. THE DISTRICT COURT'S DECISIONS ARE CONSISTENT WITH
THE LANGUAGE AND PURPOSE OF THE CWA...................................13
A. Discharges of Pollutants to Jurisdictional Surface
Waters Through Groundwater with a Direct Hydrological
Connection Properly Require CWA Permits ...........................14
B. The District Court's Decisions Give Full Effect- to
Congress's Intent to Restore and Maintain the
Nation's Waters.......................................................................20
C. The District Court's Finding of Liability is Consistent
with EPA's Longstanding Position .......................................... 22
II. THE COUNTY IS LIABLE FOR UNPERMITTED DISCHARGES
DUE TO THE "DIRECT HYDROLOGICAL CONNECTION" BETWEEN
THE GROUNDWATER AND THE OCEAN ............................................. 26
III. THE DISTRICT COURT CORRECTLY HELD THAT THE COUNTY
HAD FAIR NOTICE FOR PURPOSES OF CIVIL PENALTIES .................. 32
CONCLUSION.......................................................................................36
i

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CERTIFICATE OF COMPLIANCE........................................................37
CERTIFICATE OF SERVICE.................................................................38
ii

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TABLE OF AUTHORITIES
Cases
Bath Petrol. Storage, Inc. v. Sovas,
309 F. Supp. 2d 357 (N.D.N.Y. 2004) ............................................... 22
Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984).................................................................... 12,24
Friends of Sakonnet v. Dutra,
738 F. Supp. 623 (D.R.I. 1990)......................................................... 15
Greater Yellowstone Coal. v. Larson,
641 F. Supp. 2d 1120 (D. Idaho 2009) ........................................ 31,32
Haw. Wildlife Fund v. Cty. of Maui,
No. 12-198, 2015 WL 328227 (D. Haw. Jan. 23, 2015) .... 6, 7, 8, 9, 28
Haw. Wildlife Fund v. Cty. of Maui,
No. 12-198, 2015 WL 3903918 (D. Haw. June 25, 2015) ................... 9
Hawaii Wildlife Fund v. County of Maui,
24 F. Supp. 3.d 980 (D. Haw. 2014) .......................................... passim
Headwaters, Inc. v. Talent Irrigation Dist.,
243 F.3d 526 (9th Cir. 2001).............................................................. 5
Hernandez v. Esso Std. Oil Co.,
599 F. Supp. 2d 175 (D.P.R. 2009) ................................................... 19
Hudson R. Fishermen's Assn v. City of New York,
751 F. Supp. 1088 (S.D.N.Y. 1990) .................................................. 22
Idaho Rural Council v. Bosma,
143 F. Supp. 2d 1169 (D. Idaho 2001) ............................ 11, 18, 19, 21
Inland Steel v. EPA,
901 F.2d 1419 (7th Cir. 1990).......................................................... 22
iii

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In re EPA & Dept of Def. Final Rule,
803 F.3d 804 (6th Cir. 2015)............................................................. 24
McClellan Ecological Seepage Situation v. Cheney,
No. 86-475, 20 Envtl. L. Rep. 20,877 (E.D. Cal. Apr. 30, 1990) ....... 31
McClellan Ecological Seepage Situation v. Cheney,
763 F. Supp. 431 (E.D. Cal. 1989) .................................................... 31
McClellan Ecological Seepage Situation v. Weinberger,
707 F. Supp. 1182 (E.D. Cal. 1988) .................................................. 30
N. Cal. River Watch v. City of Healdsburg,
496 F.3d 993 (9th Cir. 2007).............................................................. 8
N. Cal. River Watch v. Mercer Fraser Co.,
No. 04-4620, 2005 WL 2122052 (N.D. Cal. Sept. 1, 2005) ... 16, 17, 19
Nw. Envtl. Def. Ctr. v. Grabhorn,
No. 08-548.,2009 WL 3672895 (D. Or. Oct. 30, 2009) ...................... 19
O'Leary v. Moyer's Landfill, Inc.,
523 F. Supp. 642 (E.D. Pa. 1981) ...............................................:..... 15
Rapanos v. United States,
547 U.S. 715 (2006) ...................................................... 2, 8, 10, 15, 16
Rice v. Harken Expl. Co.,
250 F.3d 264 (5th Cir. 2001) ...................................................... 19,20
S.F. Herring Ass'n v. Pac. Gas & Elec. Co.,
81 F. Supp. 3d 847 (N.D. Cal. 2015) ................................................ 18
Sierra Club v. Abston Constr. Co.,
620 F.2d 41 (5th Cir. 1980) .................................................. 10, 14, 15
Sierra Club v. El Paso Gold Mines, Inc.,
421 F.3d 1133 (10th Cir. 2005) ........................................................ 16
iv

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Sierra Club v. Va. Elec. & Power Co.,
No. 15-112, 2015 WL 6830301 (E.D. Va. Nov. 6, 2015) ................... 18
United States v. Approximately 64,695 Pounds of Shark Fins,
520 F.3d 976 (9th Cir. 2008)............................................................ 33
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985).......................................................................... 20
United States v. Velsicol Chem. Corp.,
438 F. Supp. 945 (W.D. Tenn. 1976) ................................................ 16
Vill. of Oconomowoc Lake v. Dayton Hudson Corp.,
24 F.3d 962 (7th Cir. 1994).............................................................. 19
Wash. Wilderness Coal. v. Hecla Mining Co.,
870 F. Supp. 983 (E.D. Wash. 1994) ................................................ 21
Yadkin Riverkeeper v. Duke Energy Carolinas, LLC,
No. 14-753, 2015 WL 6157706 (M.D.N.C..Oct. 20, 2015) ................ 18
Statutes
33 U.S.C. § 1251(a).................................................................................. 3
33 U.S.C. § 1311............................................................................. 3, 4, 14
33 U.S.C. § 1318(a)(A)........................................................................... 34
33 U.S.C. § 1319....................................................................................... 4
33 U.S.C. § 1319(d)............................................................................ 5,35
33 U.S.C. § 1341(a)................................................................................ 35
33 U.S.C. § 1341(a)(1)............................................................................ 31
33 U.S.C. § 1342............................................................................... 12 32 4
33 U.S.C. § 1342(a)................................................................................... 4
v

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33 U.S.C. § 1342(b).................................................................................. 4
33 U.S.C. § 1342(d).................................................................................. 4
33 U.S.C. § 1344.................................................................................. 3,4
33 U.S.C. § 1362...................................................................................... 3
33 U.S.C. § 1362(6).................................................................................. 3
33 U.S.C. § 1362(7).............................................................................. 2,4
33 U.S.C. § 1362(8).................................................................................. 2
33 U.S.C. § 1362(12)(A)..................................................................... 3,14
33 U.S.C. § 1362(14)................................................................................ 4
33 U.S.C. § 1365...................................................................................... 4
Federal Reoister
39 Fed. Reg. 43,759 (Dec. 18, 1974) ........................................................ 4
55 Fed. Reg. 47,990 (Dec. 2, 1990) ........................................................ 23
56 Fed. Reg. 64,876 (Dec. 12, 1991) .................................................. 5, 23
66 Fed. Reg. 2960 (Jan. 12, 2001) ....................................... 12, 23, 24, 26
80 Fed. Reg. 37,054 (June 29, 2015) ............................................... 17,25
vi

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The United States respectfully submits this brief as amicus curiae
pursuant to Federal Rule of Appellate Procedure 29(a).
INTEREST OF THE UNITED STATES
The United States Environmental Protection Agency (EPA)
implements the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387,
together with the states. That includes promulgating regulations
regarding the CWA's National Pollutant Discharge Elimination System
(NPDES). Id. § 1342. The United States participates as amicus curiae
because it has an interest in the proper interpretation of the NPDES-
permit provisions and the framework for analyzing whether discharges
of pollutants to jurisdictional surface waters through groundwater are
subject to those provisions.' The United States also has an interest
because it enforces the CWA and because it is a potential defendant in
actions alleging the discharge of pollutants from federal facilities
through groundwater.
The United States agrees with the result the district court reached
in this case and urges affirmance. In the United States' view,, a NPDES
1 We use the term "jurisdictional surface waters"' throughout this brief
to mean "waters of the United States." C
1

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permit is required here because the discharges from the Defendant -
Appellant County of Maui's wastewater treatment facility are from a
point source (i.e., the injection wells) to waters of the United States (i.e.,
the Pacific Ocean2). To be clear, the United States does not contend that
groundwater is a point source, nor does the United States contend that
groundwater is a water of the United States regulated by the Clean
Water Act. Moreover, the United States does not agree with the district
court's application of the "significant nexus" standard from Rapanos v.
United States, 547 U.S. 715 (2006).
ISSUES PRESENTED
This amicus brief addresses the following issues:
1. Whether a discharge of pollutants from a point source to
jurisdictional surface waters through groundwater with a direct
hydrological connection to jurisdictional surface waters is regulated
under the CWA.
2. Whether the site-specific facts here give rise to a "discharge of a
pollutant" under the CWA.
2 More specifically, into the Pacific Ocean that is part of the United
States' territorial seas under the CWA. 33 U.S.C. § 1362(7), (8).
91

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3. Whether the County had fair notice that it was subject to civil
penalties for its discharges to jurisdictional surface waters without a
NPDES permit.
STATEMENT OF THE CASE
I. STATUTORY BACKGROUND
Congress enacted the Clean Water Act to "restore and maintain
the chemical, physical, and biological integrity of the Nation's waters."
33 U.S.C. § 1251(a). Congress therefore prohibited any non -excepted
"discharge of any pollutant" to "navigable waters" unless it is
authorized by a permit. Id. §§ 1311, 1342, 1344, 1362. The CWA defines
"discharge of a pollutant" as "any, addition of any pollutant to navigable
waters from any point source." Id. § 1362(12)(A) (emphasis added).
Pollutant means "dredged spoil, solid waste, incinerator, sewage,
garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water." Id. § 1362(6). The CWA defines "navigable
waters" as "the waters of the United States, including the territorial
seas"; and a point source is "any discernible, confined and discrete
3

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conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged." Id. § 1362(7), (14).
The CWA authorizes EPA to issue NPDES permits under Section
402(a), but EPA may authorize a state to administer its own NPDES
program if EPA determines that it meets the statutory criteria. Id.
§ 1342(a), (b). When a state receives such authorization, EPA retains
oversight and enforcement authorities. Id. §§ 1319, 1342(d). Hawaii
obtained such permitting authority in 1974. See 39 Fed. Reg. 43,759
(Dec. 18, 1974).
The CWA is a strict -liability regime that prohibits non -excepted
discharges unless they are authorized by a CWA permit. Id. §§ 1311,
1342, 1344. An unpermitted discharge constitutes a violation of the
CWA regardless of fault and is subject to enforcement by the state or
federal government or a private citizen. Id. §§ 1319, 1365. To establish
liability for a violation of the permit requirement, a plaintiff must show
there was (1) a discharge (2) of a pollutant (3) to navigable waters (4)
n

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from a point source. Headwaters, Inc. v. Talent Irrigation Dist., 243
F.3d 526, 532 (9th Cir. 2001).
The CWA includes a civil -penalty provision for those who violate
the Act. 33 U.S.C. § 1319(d). When determining a civil -penalty amount,
courts must consider "the seriousness of the violation or violations, the
economic benefit (if any) resulting from the violation, any history of
such violations, any good -faith efforts to comply with the applicable
requirements, the economic impact of the penalty on the violator, and
such other matters as justice may require." Id.
EPA's longstanding position is 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's permitting requirements. E.g., Amendments to the Water
Quality Standards Regulations that Pertain to Standards on Indian
Reservations, 56 Fed. Reg. 64,876, 64,982 (Dec. 12, 1991) ("[T]he
affected ground waters are not considered `waters of the United States'
but discharges to them are regulated because such discharges are
effectively discharges to the directly connected surface waters.").
5

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II. FACTUAL BACKGROUND
The County operates the Lahaina Wastewater Reclamation
Facility. Haw. Wildlife Fund v. Cty. of Maui, 24 F. Supp. 3d 980,-983 (D.
Haw. 2014) [Hawaii 1]. The facility receives approximately four million
gallons of sewage each day. Id. After treating the sewage, the facility
releases three to five million gallons of effluent into four on-site
injection wells. Id. at 983-84. The effluent travels into a shallow
groundwater aquifer and then flows into the Pacific Ocean through the
seafloor at points known as "submarine springs." Id. at 984; see also
Haw. Wildlife Fund v. Cty. of Maui, No. 12-198, 2015 WL 328227, at *1
(D. Haw. Jan. 23, 2015) [Hawaii II].
EPA, the Hawaii Department of Health (DOH), and others
conducted a tracer -dye study that confirmed this conclusion for injection
wells 3 and 4. Hawaii I, 24 F. Supp. 3d at 984. According to the study, it
took the leading edge of the dye 84 days to go from wells 3 and 4 to the
ocean and about 64% of the dye injected into these wells was discharged
from the submarine springs to the Pacific Ocean. Id. The dye's
appearance in the ocean "conclusively demonstrated that a
hydrogeologic connection exists." Id. at 985-86.
0

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Although tracer dye was not placed into well 1 and dye from well 2
was not detected in the study, the County "acknowledge [d] that there is
a hydrogeologic connection between wells 1 and 2 and the ocean."
Hawaii 11, 2015 WL 328227, at *1-2. The tracer -dye study models
indicated that, in some circumstances, treated effluent from well 2
would move along flowpaths similar to those traveled by the dye
injected into wells 3 and 4 and emerge at the same springs.
Supplemental Excerpts of Record (SER) 237, 240, 243. There is no
dispute that given the proximity of wells 1 and 2, the modeling for well
2 predicts the flowpaths for discharges from well 1. Excerpts of Record
(ER) 443; SER 189.
III. PROCEDURAL BACKGROUND
In April 2012, Plaintiffs -Appellees Hawaii Wildlife Fund, Sierra
Club -Maui Group, Surfrider Foundation, and West Maui Preservation
Association filed suit seeking to require the County to obtain and
comply with a NPDES permit and to pay civil penalties. Hawaii 1, 24 F.
Supp. 3d at 986. The district court issued three partial summary -
judgment opinions in favor of Plaintiffs. The parties then entered into a
settlement agreement, in which the County stipulated to terms
7

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contingent on a final judgment that the County violated the CWA and
that the County was "not immune from" civil penalties. Haw. Wildlife
Fund v. Cty. of Maui, No. 12-198, ECF No. 259. The court entered final
judgment in accordance with its opinions and the settlement
agreement.
The district court's'first opinion held the County liable under the
CWA for unpermitted discharges from wells 3 and -4. Hawaii I, 24 F.
Supp. 3d at 1000. The court started its analysis with the language and
purpose of the CWA, and also relied on EPA's interpretation and case
law. Id. at 995-96. The court explained that Plaintiffs "must show that
pollutants can be directly traced from the injection wells to the ocean
such that the discharge at the LWRF is a de facto discharge into the
ocean." Id. at 998 (emphasis in.original). The court found that Plaintiffs
had met this burden. Id. at 998-1000. The district court also found CWA
liability under the "significant nexus" standard from Justice Kennedy's
concurring opinion in Rapanos, 547 U.S. at 755-56, and the Ninth
Circuit's application of that standard in Northern California River
Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007).

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The district court's second opinion held the County liable for
unpermitted discharges from wells 1 and 2. Hawaii II, 2015 WL
328227, at *6. The County "expressly conced[ed] that pollutants
introduced by the County into wells 1 and 2 were making their way to
the ocean," and the court rejected the County's argument that liability
does not arise unless a pollutant passes through "a series of sequential
point sources." Id. at *2-4.
The district court's third opinion rejected the County's argument
that it was not subject to civil penalties for its unpermitted discharges
because it lacked fair notice. Haw. Wildlife Fund v. Cty. of Maui, No.
12-198, 2015 WL 3903918, at *6 (D. Haw. June 25, 2015) [Hawaii III].
The court determined that the County had notice because the
discharges "clearly implicate[d] each statutory element." Id. at *4. The
court further held that its adjudication of the first motion for partial
summary -judgment provided notice to the County. Id. at *6.
The parties then entered into a settlement agreement, in which
the County stipulated that it would make good faith efforts to obtain
and comply with a NPDES permit and that it would pay $100,000 in
civil penalties and $2.5 million for a supplemental environmental

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project, all contingent on a final judgment and ruling that the County
violated the CWA and that the County was "not immune from" civil
penalties. Haw. Wildlife Fund v. Cty. of Maui, No. 12-198, ECF No. 259.
The district court then entered a final judgment.
SUMMARY OF ARGUMENT
The judgment should be affirmed because it is consistent with the
language and purpose of the Clean Water Act and EPA's longstanding
interpretation and practice of issuing NPDES permits for discharges of
pollutants similar to the ones here. As Justice Scalia said in Rapanos,
the statute's language prohibiting "any addition of any pollutant to
navigable waters from any point source" does not limit liability only to
discharges of pollutants directly to navigable waters. See Rapanos, 547
U.S. at 743 (plurality op.) (emphasis in original). Courts have
interpreted the CWA as covering not only discharges of pollutants
directly to navigable waters, but also discharges of pollutants that
travel from a point source to navigable waters over the surface of the
ground or through underground means. E.g., Sierra Club v. Abston
Constr. Co., 620 F.2d 41, 44-45 (5th Cir. 1980). The discharges in this
case fall squarely within the statutory language.
10

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In the United States' view, a NPDES permit is required here
because the discharges at issue are from a point source (i.e., the
injection wells) to waters of the United States (i.e., the Pacific Ocean's
coastal waters). To be clear, the United States views groundwater as
neither a point source nor a water of the United States regulated by the
CWA. The United States therefore agrees with the district court's
conclusion that a NPDES permit was required here, but only to the
extent that the court's analysis is consistent with the above -stated
principles regarding groundwater.
The district court's conclusions accord with the CWA's purpose.
Congress enacted the CWA "to restore and maintain ... the country's
waters"; and to achieve this goal, Congress created a strict -liability
regime prohibiting discharges unless they are authorized under the
CWA. Recognizing Congress's goals in the CWA, courts have concluded
that in certain circumstances discharges of pollutants that reach
navigable waters through groundwater fall squarely within the
statute's terms. E.g., Idaho Rural Council v. Bosma, 143 F. Supp. 2d
1169, 1179-80 (D. Idaho 2001).
11

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Even if Congress's intent on this issue had been ambiguous, EPA
has clearly stated for decades that pollutants that move through
groundwater can constitute discharges subject to the CWA, and that
interpretation is entitled to Chevron deference. Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). It has been
EPA's longstanding position that discharges moving through
groundwater to a jurisdictional surface water are subject to CWA
permitting requirements if there is a "direct hydrological connection"
between the groundwater and the surface water. See NPDES Permit
Regulation and Effluent Limitations Guidelines and Standards for
Concentrated Animal Feeding Operations, 66 Fed. Reg. 2960, 3017
(Jan. 12, 2001). This formulation recognizes that some hydrological
connections are too circuitous and attenuated to come under the CWA.
Id.
The County argues that the district court dispensed with the
requirements that a discharge be "from a point source" and "to
navigable water" because the effluent was discharged from a nonpoint
source and because the effluent was discharged into groundwater,
which is not covered by the CWA. Opening Brief (Op. Br.) at 21, 27, 30.
12

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This attempt to bifurcate the movement of the pollutants into two
separate events is inconsistent with the statute's language and purpose.
It also ignores the undisputed fact that the pollutants moved through
that groundwater to the ocean.
The County's argument that no civil penalty should have been
imposed because the County lacked fair notice lacks merit. The County
was on notice both as a general matter—through the CWA's language
and EPA's statements in rulemakings—and specifically—through
communications from EPA to the County. In any event, the question of
fair notice goes to the amount of the civil penalty, an amount the
County stipulated to, and is only one of many factors informing a civil -
penalty amount.
ARGUMENT
I. THE DISTRICT COURT'S DECISIONS ARE CONSISTENT WITH THE
LANGUAGE AND PURPOSE OF THE CWA.
The district court's judgment holding the County liable under the
CWA is consistent with the text and purpose of the statute. It is also
consistent with EPA's long -held position governing when the CWA
requires permits for discharges of pollutants that move to jurisdictional
surface waters through groundwater with a direct hydrological
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connection. The County cannot recast the nature of the discharges to
avoid that result.
A. Discharges of Pollutants to Jurisdictional Surface Waters
Through Groundwater with a Direct Hydrological
Connection Properly Require CWA Permits.
When Congress prohibited the unpermitted "discharge of any
pollutant," it defined this term broadly as "any addition of any pollutant
to navigable waters from any point source." 33 U.S.C. §§ 1311,
1362(12)(A). As the County concedes, "a point source does not need to
discharge directly into navigable waters to trigger NPDES permitting."
Op. Br. at 27. Because Congress did not limit the term "discharges of
pollutants" to only direct discharges to navigable waters, discharges
through groundwater may fall within the purview of the CWA.
This reading of "discharge of a pollutant" has been applied in
other similar contexts where discharges of pollutants have moved from
a point source to navigable waters over the surface of the ground or by
some other means. In Sierra Club v. Abston Construction, which
addressed discharges from mining operations that traveled to navigable
waters in part through surface runoff, the Fifth Circuit stated that
"[g]ravity flow, resulting in a discharge into navigable body of water,
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may be part of a point source discharge if the [discharger] at least
initially collected and channeled the water and other materials."3 620
F.2d at 44-45; see also Friends of Sakonnet v. Dutra, 738 F. Supp. 623,
628, 630 (D.R.I. 1990) (defendant liable for discharge of "raw sewage
[that] was running directly from the leaching field, on the surface of the
ground for approximately 250 feet, into the [surface water]"); O'Leary v.
Moyer's Landfill, Inc., 523 F. Supp. 642, 647 (E.D. Pa. 1981) ("[T]here is
no requirement that the point source need be directly adjacent -to the
waters it pollutes.").
That Congress gave the term "discharge of a pollutant" a broad
meaning finds support in cases where CWA liability attached for
discharges from point sources that traveled through other means before
reaching surface waters. See Rapanos, 547 U.S. at 743 (noting that
courts have found violations of Section 301 "even if the pollutants
discharged from a point source do not emit `directly into' covered
3 The County misconstrues the United States' position as amicus curiae
in Abston Construction. See Op. Br. at 30-31. The United States took the
position that discharges of pollutants that traveled indirectly from a
point source to jurisdictional surface waters through surface runoff or
the gravity flow of rainwater come within the scope of the CWA. Brief
for the United States as Amicus Curiae, at 35-36, Sierra Club v. Abston
Constr. Co., No. 77-2530 (5th Cir. 1980).
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waters, but pass `through conveyances' in between") (citing Sierra Club
v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1137 (10th Cir. 2005)
(defendant could be liable for discharges conveyed from its point -source
mine shaft to jurisdictional surface water through a tunnel that
defendant did not own); United States v. Velsicol Chem. Corp., 438 F.
Supp. 945, 946-47 (W.D. Tenn. 1976) (holding that CWA covered
pollutants discharged from defendant's point source to jurisdictional
surface waters conveyed through a sewer system that the defendant did
not own)).
Because courts have interpreted the term "discharge of a
pollutant" to cover discharges over the ground and through other
means, exempting discharges through groundwater could lead to absurd
results. As one court noted, "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." N. Cal. River Watch v. Mercer Fraser Co., No. 04-4620,
2005 WL 2122052, at *2 (N.D. Cal. Sept. 1, 2005).
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The County concedes that discharges need not be direct and that a
discharge through a conveyance requires a permit. Op. Br. at 27. The
County argues, however, that the conveyance itself must be a point
source and that because groundwater is not a point source, the. district
court "impermissibly `transform[s] a nonpoint source into a point
source."' Id. at 27-28, 33. The County's interpretation is flawed.
Contrary to the County's argument, the district court did not eliminate
the requirement that a discharge be "from a point source." All it said
was that pollutants from a point source need not be emitted directly
into covered waters. The case law does not require the means by which
the pollutant discharged from a point source reaches a water of the
United States to be a point source.
While the County's statement that the statutory definition of
"navigable waters" does not include groundwater is accurate, Op. Br. at
21, it is beside the point. There is no dispute that groundwater itself is
not a "navigable water," 80 Fed. Reg. 37,054, 37,055 (June 29, 2015),
but the district court's decisions hinge on the movement of pollutants to
jurisdictional surface waters through groundwater with a direct
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hydrological connection. Such an addition of pollutants to navigable
waters falls squarely within the CWA's scope.
The County relies on the treatment of groundwater in legislative
history, Op. Br. at 21-23, but this "only supports the unremarkable
proposition with which all courts agree—that the CWA does not
regulate `isolated/nontributary groundwater' which has no [effect] on
surface water.". Bosma, 143 F. Supp. 2d at 1180. It does not undermine
the conclusion that discharges of pollutants through groundwater to
jurisdictional surface waters are subject to the NPDES program.
The County contends that case law does not support the district
court's interpretation, Op. Br. at 35-37, but this argument largely
ignores the majority of the courts that have addressed this issue and
concluded that discharges that move from a point source to
jurisdictional surface waters via groundwater with a hydrological
connection are subject to regulation under the CWA. See, e.g., Sierra
Club v. Va. Elec. & Power Co., No. 15-112, 2015 WL 6830301 (E.D. Va.
Nov. 6, 2015); Yadkin Riverkeeper v. Duke Energy Carolinas, LLC, No.
14-753, 2015 WL 6157706 (M.D.N.C. Oct. 20, 2015); S.F. Herring Ass n
v. Pac. Gas & Elec. Co., 81 F. Supp. 3d 847 (N.D. Cal. 2015); Hernandez

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v. Esso Std. Oil Co., 599 F. Supp. 2d 175 (D.P.R. 2009); Nw. Envtl. Def.
Ctr. v. Grabhorn, No. 08-548, 2009 WL 3672895 (D. Or. Oct. 30, 2009);
Mercer Fraser, 2005 WL 2122052; Bosma, 143 F. Supp. 2d 1169.
The County's reliance on other case law (Op. Br. at 35-36) is
unavailing for three reasons. First, none of the cases are controlling
precedent. Second, most of these decisions are inapposite because they
do not address the issue of discharges of pollutants that move through
groundwater to jurisdictional surface waters.. In Village of Oconomowoc
Lake v. Dayton Hudson, Corp., the court examined whether
groundwater itself was a navigable water, i.e., a water within the
meaning of the CWA. 24 F.3d 962, 965 (7th Cir. 1994). That is distinct
from whether a CWA permit is required when pollutants travel to
jurisdictional surface waters through groundwater with a direct
hydrological connection.
Third, these cases do not foreclose application of the CWA where a
direct hydrological connection to jurisdictional surface waters can be
found. In Rice v. Harken Exploration Co., the court concluded that a
discharge of oil that might reach navigable waters by gradual, natural
seepage was not the equivalent of a discharge to navigable waters. 250
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F.3d 264, 271 (5th Cir. 2001). The court suggested, however, that it
would be open to finding a discharge had occurred through groundwater
when it underscored the plaintiffs' failure to provide any "evidence of a
close, direct and proximate link between [the defendant's] discharges of
oil and any resulting actual, identifiable oil contamination of a
particular body of natural surface water." Id. at 272.
B. The District Court's Decisions Give Full Effect to
Congress's Intent to Restore and Maintain the Nation's
Waters.
Congress's purpose in enacting the CWA—to "restore and
maintain the chemical, physical, and biological integrity of the Nation's
waters"—embraced a "broad, systemic view ... of water quality."
United States- v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132
(1985). The County attempts to minimalize that goal. Adopting the
County's theory would allow dischargers to avoid responsibility simply
by discharging pollutants from a point source into jurisdictional surface
waters through any means that was not direct.
Courts have viewed the CWA's broad purpose of protecting the
quality of navigable waters as a clear congressional signal that "any
pollutant which enters such waters, whether directly or through

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groundwater, is subject to regulation by NPDES permit." Wash.
Wilderness Coal. u. Hecla Mining Co., 870 F. Supp. 983, 990 (E.D.
Wash. 1994). "Stated even more simply, whether pollution is introduced
by a visible, above -ground conduit or enters the surface water through
the aquifer matters little to the fish, waterfowl, and recreational users
which are affected by the degradation to our nation's rivers and
streams." Bosma, 143 F. Supp. 2d at 1179-80.
The state's authority to protect groundwater is in no way impaired
by subjecting point sources to NPDES-permit requirements to protect
surface waters. Thus, the County's argument that it should not be liable
here because "preservation of states' authority over the regulation of
groundwater" is a "co -equal" goal of the CWA misses the mark. Op. Br.
at 34-35. This emphatically is not a case about the regulation of
groundwater. Instead it is about the regulation of discharges of
pollutants to waters of the United States. To the extent the County's
argument relies on the regulatory scheme governing disposal into wells,
Op. Br. at 24-27, that is flawed because the regulation of wells under
the Safe Drinking Water Act's (SDWA) Underground Injection Control
(UIC) program does not preclude or displace regulation under the
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CWXs NPDES program.4 See Hudson R. Fishermen's Assn v. City of
New York, 751 F. Supp. 1088, 1100 (S.D.N.Y. 1990), aff'd, 940 F.2d 649
(2d Cir. 1991) (objectives of the CWA and the SDWA are not "mutually
exclusive"); see also Bath Petrol. Storage, Inc. v. Sovas, 309 F. Supp. 2d
357, 369 (N.D.N.Y. 2004).
C. The District Court's Finding of Liability Is Consistent with
EPA's Longstanding Position.
EPA's longstanding position has been that point -source discharges
of pollutants moving through groundwater to a jurisdictional surface
water are subject to CWA permitting requirements if there is a "direct
hydrological connection" between the groundwater and the surface
water. EPA has repeatedly articulated this view in multiple rulemaking
preambles. In 1990, EPA stated that "this rulemaking only addresses
discharges to water of the United States, consequently discharges to
ground waters are not covered by this rulemaking (unless there is a
4 The County misconstrues EPA's position in Inland Steel v. EPA, 901
F.2d 1419 (7th Cir. 1990). EPA argued that not all disposals into
injection wells are discharges of pollutants under the CWA, and that
the connection between the wells and navigable waters in that case was
too attenuated to bring the discharges under the purview of the CWA.
Id. at 1422-23. That position (embraced by the Seventh Circuit) does not
mean that "injection into wells is not a discharge of pollutants requiring
a NPDES permit." Op. Br. at 27.
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hydrological connection between the ground water and a nearby surface
water body)." NPDES Permit Application Regulations. for Storm Water
Discharges, 55 Fed. Reg. 47,990, 47,997 (Dec. 2, 1990).
And in the preamble to its final rule addressing water quality
standards on Indian lands, EPA stated:
[T]he Act requires NPDES permits for discharges to
groundwater where there is a direct hydrological connection
between groundwaters and surface waters. In these
situations, the affected groundwaters are not considered
"waters of the United States" but discharges to them are
regulated because such discharges are effectively discharges
to the directly connected surface waters.
56 Fed. Reg. at 64,982.
In 2001, EPA reiterated its position: "As a legal and factual
matter, EPA has made a determination that, in general, collected or
channeled pollutants conveyed to surface waters via ground water can
constitute a discharge subject to the Clean Water Act." 66 Fed. Reg. at
3017. EPA recognized that the determination was "a factual inquiry,
like all point source determinations," adding:
The time and distance by which a point source discharge is
connected to surface waters via hydrologically connected
surface waters will be affected by many site specific factors,
such as geology, flow, and slope. Therefore, EPA is not
proposing to establish any specific criteria beyond confining
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the scope of the regulation to discharges to surface water via
a "direct" hydrological connection.
Id. A general hydrological connection between all groundwater and
surface waters is insufficient; there must be evidence showing a direct
hydrological connection between specific groundwater and specific
surface waters. Id.
To the extent there is statutory ambiguity about whether the
CWA applies to discharges to jurisdictional surface waters through
groundwater, EPA's interpretation is entitled to Chevron deference.
Chevron, 467 U.S. at 842-43.
The County's contention that the direct -hydrological -connection
standard is at odds with EPA's recently -stated position on whether
groundwater is a jurisdictional water misinterprets EPA's statements.
Op. Br. at 38-39. The Clean Water Rule, which was promulgated in
June 2015 (and stayed by the Sixth Circuit pending further order of the
court, see In re EPA & Dept of Def. Final Rule, 803 F.3d 804, 809 (6th
Cir. 2015)), expressly excludes groundwater from the definition of
"waters of the United States." 80 Fed. Reg. 37,054. But, as EPA
clarified, the fact that groundwater itself is not jurisdictional under the
CWA does not mean that pollutants that reach waters of the United
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States through groundwater do not require CWA permits. "EPA agrees
that the agency has a longstanding and consistent interpretation that
the Clean Water Act may cover discharges of pollutants from point
sources to surface water that occur via ground water that has a direct
hydrologic connection to the surface water. Nothing in this rule changes
or affects that longstanding interpretation, including the exclusion of
groundwater from the definition of `waters of the United States."' See
EPA, Response to Comments — Topic 10 Legal Analysis (June 30, 2015);
available at http://www.epa.gov/cleanwaterrule/response-comments-
clean-water-rule - definition -waters -unite d- states. The County
erroneously attempts to conflate the jurisdictional exclusion of
groundwater with the role that groundwater can play as the pathway
through which pollutants from a point source reach jurisdictional
surface waters.5
5 The district court stated that if the proposed Clean Water Rule was
finalized, it "would likely mean that the groundwater under the
[facility] could not itself be considered `waters of the United States"' and
that this would affect whether Plaintiffs could also prevail under
Healdsburg. Hawaii 1, 24 F. Supp. 3d at 1001. But the court erred in
attempting to apply Healdsburg because the jurisdictional status of
groundwater itself is irrelevant to whether discharges that move
through groundwater to jurisdictional waters require NPDES permits.
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II. THE COUNTY Is LIABLE FOR UNPERMITTED DISCHARGES DUE TO
THE "DIRECT HYDROLOGICAL CONNECTION" BETWEEN THE
GROUNDWATER AND THE OCEAN.
Discharges of pollutants from a point source that move through
groundwater are subject to CWA permitting requirements if there is a
direct hydrological connection between the groundwater and a
jurisdictional surface water.6 Ascertaining whether there is a direct
hydrological connection is a fact -specific determination. 66 Fed. Reg. at
3017. To qualify as "direct," a pollutant must be able to proceed from
the point of injection to the surface water without significant
interruption. Relevant evidence includes the time it takes for a
pollutant to move to surface waters, the distance it travels, and its
traceability to the point source. These factors will be affected by the
type of pollutant, geology, direction of groundwater flow, and evidence
that the pollutant can or does reach jurisdictional surface waters. Id.
Here, the district court correctly held that the County discharged
pollutants to the ocean through groundwater. In Hawaii I, the court
6 Some courts refer to a "hydrological connection." The more accurate
formulation, however, is a "direct hydrological connection," which
recognizes that some connections are too circuitous and attenuated to
be under the CWA's purview.
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determined that a direct hydrological connection exists between the
groundwater and the ocean. The tracer -dye study clearly established
that the discharges moved from wells 3 and 4 to the ocean in relatively
short order.? Hawaii I, 24 F. Supp. 3d at 984. The study concluded that
after 84 days, the dye began to appear along the North Kaanapali
Beach, half a mile from the facility. Id. The tracer -dye study also
estimated that 64% of the treated effluent from wells 3 and 4 followed
this route to the ocean. Id.
Although the court's ultimate conclusion was correct, the court's
alternative explanation for the County's liability under the "significant
nexus" standard from Rapanos and Healdsburg was erroneous. Hawaii
I, 24 F. Supp. 3d at 1004. Rapanos and Healdsburg applied the
"significant nexus" standard in determining whether the receiving
waters were "waters of the United States." In contrast, here, there is no
dispute that the Pacific Ocean (the receiving water in this case), as a
"territorial sea," is a "navigable water" under the CWA. This Court
7 Although this tracer -dye study simplified the analysis, such studies
are not the only means of demonstrating a direct hydrological
connection. It also is not necessary to trace the exact pathway that the
pollutants take to establish that a direct hydrological connection exists.
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should clarify that the "significant nexus" standard has no relevance
here.
In Hawaii II, the district court correctly held the County
discharged pollutants from wells 1 and 2 to the ocean through
groundwater. But the court's opinion did not go into great detail about
the movement through groundwater because the County "expressly
conced[ed] that pollutants introduced by the County into wells 1 and 2
were making their way to the ocean" and "acknowledge [d] that there is
a hydrogeologic connection between wells 1 and 2 and the ocean."
Hawaii II, 2015 WL 328227, at *2.
There was additional evidence that a direct hydrological
connection existed between wells 1 and 2 and the Pacific Ocean. First,
the tracer -dye study models indicated that in some circumstances
treated effluent from well 2 would move along flowpaths that were
similar to those traveled by the dye injected into wells 3 and 4 and
would emerge at the same submarine springs. SER 237, 240, 243.
Because wells 3 and 4 are located between the springs and well 2, the
flowpath for these discharges would be affected by the amount of
effluent injected into each .well. SER 237. When most of the effluent was

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injected into wells 3 and 4, the effluent from well 2 would travel
northwesterly from the wells and not toward the springs; however,
when well 2 received all of the effluent, the study indicated that the
discharges would emerge at the springs. SER 240, 243. There was no
dispute that given the proximity of wells 1 and 2, the modeling for well
2 predicts the pathways for discharges from well 1. ER 443, SER 189.
Second, Plaintiffs' expert stated that the effluent discharged from
wells 1 and 2 "will be conveyed ... relatively quickly (i.e., with first
arrival at the ocean in a matter of months)" and concluded that "[s]ince
the aquifer material and hydraulic gradient in the area of all four ...
wells are similar, the groundwater flow will also be similar." SER 183.
Although the County's expert argued that the point of entry for
pollutants into the ocean from wells 1 and 2 could not be identified, the
County did not dispute that the study showed effluent emerging at the
same springs where the effluent from wells 3 and 4 emerged. Haw.
Wildlife Fund u. Cty. of Maui, No. 12-198, ECF No. 136, at 16.
Any fears about the implications of point -source discharges to
jurisdictional surface waters through groundwater with a direct
hydrological connection being subject to NPDES-permit requirements
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are unwarranted. Op. Br. at 43-44. EPA and states have been issuing
permits for this type of discharge from a number of industries, including
chemical plants, concentrated animal feeding operations, mines, and oil
and gas waste -treatment facilities. See, e.g., NPDES Permit No.
NM0022306, available at https://www.env.nm.gov/swqb/Permits/;
NPDES Permit No. WA0023434, available at
https://yosemite.epa. gov/r10/water.nsf/NPD ES+Permits/CurrentOR&W
A821.
Further, only those discharges that move through groundwater
with a direct hydrological connection to surface waters are affected.
That not all discharges through groundwater are subject to NPDES-
permit requirements is shown by cases where the hydrological
connections were too attenuated. In McClellan Ecological Seepage
Situation (MESS) v. Weinberger, the court agreed with the plaintiff that
discharges through groundwater may be subject to the CWA and
allowed the parties to submit evidence on the issue. 707 F. Supp. 1182,
1196 (E.D. Cal. 1988). Based on evidence indicating that it would take
"literally dozens, and perhaps hundreds, of years for any pollutants in
the groundwater to reach surface waters," the court found that there
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were no regulated discharges. MESS v. Cheney, 763 F. Supp. 431, 437
(E.D. Cal. 1989). And even after allowing the plaintiff an opportunity to
provide more testimony at trial, the court ruled that the plaintiff had
failed to meet its burden. MESS v. Cheney, No. 86-475, 20 Envtl. L.
Rep. 20,877 (E.D. Cal. Apr. 30, 1990), vacated on other grounds, 47 F.3d
325, 331 (9th Cir. 1995).
Likewise, in Greater Yellowstone Coalition v. Larson, evidence
indicated that the connection to surface waters was too attenuated. 641
F. Supp: 2d 1120 (D. Idaho 2009), aff'd 628 F.3d 1143, 1153 (9th Cir.
2010). In that case, federal agencies determined that a CWA Section
401 certification was not required for a mining operation. Under Section
401, "[a]ny applicant for a Federal license or permit to conduct any
activity ... which may result in any discharge into the navigable
waters, shall provide the licensing or permitting agency a certification
from the State ... that any such discharge will comply with the
applicable provisions." 33 U.S.C. § 1341(a)(1). The agencies based their
determination on evidence that before reaching surface waters, the
pollutants would pass through hundreds of feet of overburden and
bedrock, and then travel underground through soil and rock for one to
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four miles. Greater Yellowstone, 641 F. Supp. 2d at 1139. Modeling
predicted that the movement of peak concentrations would take
between 60 and 420 years. Id. The court weighed competing evidence
from the plaintiff and ultimately deferred to the agencies'
determination that the hydrological connection was too attenuated. Id.
at 1141.
Unlike MESS and Greater Yellowstone, in which the connection
was too attenuated, the discharges here resulted from a direct
hydrological connection, and thus require a permit.
III. THE DISTRICT COURT CORRECTLY HELD THAT THE COUNTY HAD
FAIR NOTICE FOR PURPOSES OF CIVIL PENALTIES.
In the Argument section of its brief, the County maintains that
this Court should direct the district court to set aside any civil penalties
"imposed on the County regardless of the outcome of the challenge to
the district court's liability rulings" because it lacked fair notice. Op. Br.
at 47. As an initial matter, the County would seemingly be precluded
from appealing the fair -notice issue as to civil penalties because it
stipulated to their amount in the settlement agreement. To the extent
that the County has reserved its right to appeal the issue, however, the
County's argument lacks merit.
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This Court has held that a party may not be deprived of property
through civil penalties without fair notice. See United States v..
Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976, 980 (9th Cir.
2008). To provide notice, "a statute or regulation must `give the person
of ordinary intelligence a reasonable opportunity to know what is
prohibited so that he may act accordingly."' Id.
This Court looks first to the language of the statute when
determining whether a party had fair notice. Id. As discussed above,
Congress used broad language in the CWA in defining the discharge of
pollutants, and that expansiveness provides a reasonable opportunity
for a person to know what the statute prohibits. The breadth of that
language is only bolstered by the intent of the CWA.
Moreover, EPA has made multiple public statements in
rulemaking preambles that consistently described its interpretation
that discharges of pollutants to jurisdictional surface waters through
groundwater with a direct hydrological connection are subject to
NPDES permitting under the CWA. Further, with respect to specific
communications with the County, EPA sent two letters to the County in
early 2010. In January 2010, EPA stated that it was "investigating the
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possible discharge of pollutants to the coastal waters of the Pacific
Ocean along the Kaanapali coast of Maui." SER `5. This investigation
was spurred in part by a 2007 study concluding that much of the
nitrogen in Kaanapali coastal waters came from the County's facility
and a 2009 study that found the same nitrogen signature and other
"wastewater presence" in the ocean. Hawaii 1, 24 F. Supp. 3d at 984.
The letter continued: "In order to assess the impact of the [facility's]
effluent on the coastal waters and determine compliance with the Act,
EPA is requiring the County to sample the injected effluent, sample the
coastal seeps, conduct an introduced tracer study, and submit reports
on findings to EPA." SER 5. EPA required this sampling, monitoring,
and reporting pursuant to CWA Section 308, under which "the [EPA]
Administrator shall require the owner or operator of any point source"
to provide the information. 33 U.S.C. § 1318(a)(A). The letter provided
notice that there was evidence suggesting a hydrological connection.
In March 2010, EPA responded to the County's request for a UIC
permit renewal under the SDWA "by informing the County that recent
studies `strongly suggest that effluent from the facility's injection wells
is discharging into the near shore coastal zone of the Pacific Ocean." --
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Hawaii I, 24 F. Supp. 3d at 984 (quoting ER 122). As a result, EPA
required the County to apply for a CWA Section 401 water -quality
certification for its injection facilities as a prerequisite to EPA's
issuance of a new UIC permit. ER 121-22; see 33 U.S.C. § 1341(a). The
County's assertion that this letter did not put it on notice of potential
CWA liability because the certification was related to its UIC permit
rather than any obligations under the NPDES program is unavailing.
Op. Br. at 56-57. A UIC permit does not preclude the need for a NPDES
permit where required, and the March 2010 communication reiterated
EPA's position that the discharges might be covered by the CWA,
depending on the results of the ordered sampling, monitoring, and
reporting.
The County was on fair notice. In any event, fair notice is only one
of many factors informing a civil -penalty amount, see 33 U.S.C. §
1319(d), and thus the County's argument that the penalty should be set
aside for lack of fair notice alone is flawed.
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CONCLUSION
For the foregoing reasons, the district court's judgment should be
affirmed.
OF COUNSEL:
KARYN WENDELOWSKI
U.S. Environmental
Protection Agency
Office of General Counsel
Washington, D.C.
May 31, 2016
90-12-14672
W:
Respectfully submitted,
JOHN C. CRUDEN
Assistant Attorney General
Is/ Frederick H. Turner
FREDERICK H. TURNER
AARON P. AVILA
R. JUSTIN SMITH
Attorneys, U.S. Dep't of Justice
Env't & Natural Resources Div.
P.O. Box 7415
Washington, DC 20044
[phone]
[e-mail]

Case: 15-17447, 05/31/2016, ID: 9997388, DktEntry: 40, Page 44 of 45
CERTIFICATE OF COMPLIANCE
WITH TYPE VOLUME LIMITATION, TYPEFACE
REQUIREMENTS, AND TYPE -STYLE REQUIREMENTS
This brief complies with the type -volume limitation of Fed. R. App.
P. 32(a)(7)(B) (for amicus briefs as provided by Fed. R. App. P. 29(d))
because it contains 6,904 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type -style
requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in
a proportionally spaced typeface using Microsoft Word 14 -point Century
Schoolbook.
37
I s / Frederick H. Turner
FREDERICK H. TURNER
U.S. Department of Justice
Env't & Natural Resources Div.
P.O. Box 7415
Washington, DC 20044
[phone]
[e-mail]

Case: 15-17447, 05/31/2016, ID: 9997388, DktEntry: 40, Page 45 of 45
CERTIFICATE OF SERVICE
I hereby certify that on May 31, 2016, I electronically filed the
foregoing brief with the Clerk of the Court for the United States Court
of Appeals for the Ninth Circuit using the appellate CM/ECF system,
which will serve the brief on the other participants in this case.
I s /Frederick H. Turner
FREDERICK H. TURNER
U.S. Department of Justice
Env't & Natural Resources Div.
P.O. Box 7415
Washington, DC 20044
[phone]
[e-mail]

Exhibit 2

Amended Expert Report of
Douglas J. Cosler, Ph.D., P.E.
Chemical Hydrogeologist
Adaptive Groundwater Solutions LLC
Charlotte, North Carolina
Cliffside Steam Station Ash Basins
Mooresboro, North Carolina
RECEIVEDINCDEUDWR
NOV 14 2016
Water Quality
permitting Section
April 13, 2016

Introduction
Site Backaround
The Cliffside Steam Station (CSS) is a coal-fired generating station owned by Duke Energy and located
on a 1,000 -acre site in Mooresboro, Rutherford and Cleveland Counties, North Carolina, adjacent to the
Broad River. CSS began operations 1940 with Units 1-4, followed later by Unit 5 (1972) and Unit 6
(2013). Units 5 and 6 are currently operating, but Units 1-4 were retired from service in 2011. An ash
basin system has been historically used to dispose of coal combustion residuals ('coal ash") and other
liquid discharges from the CSS coal combustion process. The ash basin system consists of an active ash
basin (constructed in 1975 and expanded in 1980; used by Units 5 and 6), the Units 1-4 inactive ash
basin (retired in 1977 upon reaching its capacity), and the Unit 5 inactive ash basin (retired at capacity in
1980, but local stormwater collects and infiltrates within its footprint). The active ash basin also contains
an unlined dry ash storage area.
Duke Energy performed voluntary groundwater monitoring around the active ash basin from August 2008
to August 2010 using wells installed in 1995/1996, 2005, and 2007. Compliance groundwater monitoring,
required by a NPDES permit, has been performed by Duke starting in April 2011. Recent groundwater
sampling results at Cliffside have indicated exceedances of 15A NCAC 02L.0202 Groundwater Quality
Standards (2L Standards). In response to this, the North Carolina Department of Environmental Quality
(NC DEQ) required Duke Energy to perform a groundwater assessment at the site and prepare a
Comprehensive Site Assessment (CSA) report. The Coal Ash Management Act of 2014 (CAMA) also
required owners of surface impoundments containing coal combustion residuals (CCR) to conduct
groundwater monitoring and assessment and prepare a CSA report. The recently -completed CSA
(August 2015) prepared by HDR Engineering, Inc. of the Carolinas (HDR) determined that the source and
cause of certain constituent regulatory exceedances at the CSS site is leaching from coal ash contained
in the active and inactive ash basins and the ash storage area into underlying soil and groundwater. The
Cliffside CSA report defined Constituents of Interest (COI) in soil, groundwater, and seeps that are
attributable to coal ash handling and storage.
CAMA also requires the submittal of a Corrective Action Plan (CAP); the CAP for the Cliffside site
consists of two parts. CAP Part 1 (submitted to DEQ in November 2015) provides a summary of CSA
findings, further evaluation and selection of COI, a site conceptual model (SCM), the development of
groundwater flow and chemical transport models of the site, presentation and analysis of the results of
the modeling, and a quantitative analysis of groundwater and surface water interactions. The CAP Part 2
contains proposed remedial methods for achieving groundwater quality restoration, conceptual plans for
recommended corrective action, proposed future monitoring plans, and a risk assessment.
2

Information Reviewed
My opinions are based upon an analysis and technical review of (i) hydrogeologic and chemical data
collected at the Cliffside site; (ii) the analyses, interpretations, and conclusions presented in site -related
technical documents and reports; (iii) the groundwater flow and chemical transport models constructed
for the site (including model development, calibration, and simulations of remedial alternatives); (iv) the
effectiveness of proposed remedial alternatives to achieve groundwater quality restoration; and (v)
proposed future site monitoring. This amended report contains additional opinions based on my review of
the recently -issued CAP Part 2 report. These opinions are subject to change as new information
becomes available.
As a basis for forming my opinions I reviewed the following documents and associated appendices:
(1) Comprehensive Site Assessment Report, Cliffside Steam Station Ash Basin (August 1'8, 2015);
(2) Corrective Action Plan, Part 1, Cliffside Steam Station Ash Basin (November 16, 2015);
(3) Corrective Action Plan, Part 2, Cliffside Steam Station Ash Basin (February 12, 2016);
(4) Miscellaneous historical groundwater and soil concentration data for the Cliffside site collected
prior to the CSA; and
(5) Specific references cited in and listed at the end of4his report.
Professional Qualifications
I have advanced graduate degrees in Hydrogeology (Ph.D. Degree from The Ohio State University) and
Civil and Environmental Engineering (Civil Engineer Degree from the Massachusetts Institute of
Technology), and M.S. and B.S. degrees from Ohio State in Civil and Environmental Engineering. I have
36 years of experience as a chemical hydrogeologist and environmental engineer investigating and
performing data analyses and computer modeling for a wide variety of projects. These projects include:
investigation, remediation, and regulation of Superfund, RCRA, and other hazardous waste sites involving
overburden and bedrock aquifers; ground water flow and chemical transport model development; natural
attenuation/biodegradation assessments for chlorinated solvent and petroleum contamination sites;
volatile organic compound vapor migration and exposure assessment; exposure modeling for health risk
assessments; hydrologic impact assessment for minerals and coal mining; leachate collection system
modeling and design for mine tailings disposal impoundments; and expert witness testimony and
litigation support. I also develop commercial groundwater flow and chemical transport modeling software
for the environmental industry.
The types of sites I have investigated include: landfills, mining operations, manufactured gas plants,
wood -treating facilities, chemical plants, water supply well fields, gasoline and fuel oil storage/delivery
facilities, nuclear waste disposal sites, hazardous waste incinerators, and various industrial facilities. I
3

have investigated the following dissolved, nonaqueous-phase (LNAPL%DNAPL), and vapor -phase
contaminants: chlorinated solvents, various metals, gasoline and fuel oil constituents, wood -treating
products, coal tars, polychlorinated biphenyls, pesticides, dioxins and furans, phenolic compounds, flame
retardants (PBDE), phthalates, radionuclides, and biological constituents.
Summary of Opinions
The following is a brief summary of the opinions developed in my report:
• A total of 62 Compliance Boundary groundwater samples exceeded North Carolina groundwater
standards for these COI: antimony, boron, chromium, cobalt, iron, manganese, sulfate, total
dissolved solids, and vanadium. Of these 62' exceedances, 36 were greater than the proposed
provisional background concentrations by HDR;
• The statistical analyses of shallow background groundwater- concentrations at the Cliffside site
(well MW -24D) are invalid due to the characteristically slow rate of COI migration in groundwater;
• There is a significant risk of chemical migration from the ash basin to neighboring private water
supply wells in fractured bedrock;
• Major limitations of the CAP groundwater flow and chemical transport models prevent simulation
and analysis of off-site migration;
• The CAP Closure Scenario simulations greatly underestimate (by factors of 10 or more) the time
frames required to achieve meaningful groundwater concentration reductions in response to
remedial actions;
• For either the Existing Condition or Cap -in -Place Model Scenario groundwater concentrations of
coal -ash constituents much higher than background levels will continue to exceed North Carolina
groundwater standards at the Compliance Boundary because saturated coal -ash material and
secondary sources will remain in place;
• Source -area mass removal included in the Excavation Scenario results in COI concentration
reductions at the Compliance Boundary that are generally two to ten (2 - 10x) times greater
compared to Cap -in -Place, best reduces impacts to surface water, and reduces cleanup times by
factors of two to five (2 - 5x). Additional excavation of secondary sources would further
accelerate concentration reductions;
• The CAP simulations show that source excavation reduces groundwater concentrations for many
COI below North Carolina groundwater standards (antimony, arsenic, chromium, hexavalent
chromium, cobalt, nickel, thallium, vanadium), but cap -in-place closure does not;
• CSA data show multiple exceedances of groundwater standards in bedrock not only at the
compliance boundary but also inside the CB. However, the CAP Closure Scenarios do not
address either concentration reduction or off-site chemical migration control in the fractured
bedrock aquifer;
4

• Due to an incorrect boundary -condition representation of the active ash basin, the CAP models
underestimate by a factor of two or more both the mass loading of COI into the Broad River and
the corresponding Broad River water concentrations (attributable to coal ash ponds) estimated by
the groundwater/surface-water mixing model;
• The CAP Part 2 geochemical modeling and monitored natural attenuation (MNA) evaluations do
not provide the required quantitative analyses of COI attenuation rates necessary to support MNA
as a viable corrective action. The CAP 2 chemical transport modeling, which included attenuation
by sorption, demonstrated that MNA is not an effective remedial option for several COI (e.g.,
antimony, arsenic, beryllium, boron, chromium, hexavalent chromium, cobalt, lead, sulfate,
thallium, and vanadium);
• Future Compliance Monitoring at the Cliffside site should include much more closely -spaced
Compliance Wells to provide more accurate detection, and groundwater sampling frequency
should be re-evaluated to allow valid statistical analyses of concentration variations.
Hydrogeology of the Cliffside Site
Introduction
The groundwater system at the Cliffside site is an unconfined, connected system consisting of three basic
flow layers: shallow, deep, and fractured bedrock. The shallow and deep layers consist of residual soil,
saprolite (clay and coarser granular material formed by chemical weathering of bedrock), and weathered
fractured rock (regolith). A transition zone at the base of the regolith is also present and consists of
partially-weathered/fractured bedrock and lesser amounts of saprolite. The ash basin system overlies
native soil and was constructed in historical drainage features formed from tributaries that flowed toward
the Broad River using earthen embankment dams and dikes. As described in the CSA report, the active
ash basin was formed by construction of two dams across natural drainages. At the upstream dam, Suck
Creek was diverted through a canal and away from the ash basin to the Broad River, at its present-day
configuration. The active ash basin downstream dam is located near the historical discharge point of
Suck Creek into the Broad River. A large percentage of the coal ash lies below the groundwater table
and is saturated. Groundwater flow through saturated coal ash and downward infiltration of rainwater
through unsaturated coal ash leach COI into the subsurface beneath the basin and via seeps through the
embankments.
As described by HDR, groundwater flow in all three layers within the site boundary is generally from south
to north toward the Broad River. Vertical groundwater flow between the three layers also occurs, and
surface water ponding in the active ash basin effects flow directions locally. The CSA and CAP
investigations assumed that all groundwater north of the ash basin system (overburden and bedrock
5

aquifers) discharges into the Broad River. However, these studies did not collect hydrogeologic data or
perform data analyses or groundwater flow modeling to support this assumption. The CSA and CAP
Parts 1 and 2 also did not analyze potential changes to site groundwater flow directions, or the risk of off-
site migration of COI in the overburden or bedrock aquifers, caused by groundwater extraction from
numerous private and public water supply wells located close to the site boundaries and near the Broad
River.
My report begins with a discussion of.significant errors in CSA data analysis and conceptual model
development that contradict HDR's interpretation of three-dimensional groundwater flow patterns at the
Cliffside site. This is followed by a presentation and discussion of measured exceedances of North
Carolina groundwater standards at multiple locations on the ash basin compliance boundary. I then
address several limitations of the CAP Parts 1 and 2 groundwater flow and chemical transport models
and identify various model input data errors. Finally, I present my evaluations of the CAP Closure
Scenario simulations and provide my opinions regarding the effectiveness of various remedial alternatives
for restoring groundwater quality to North Carolina standards.
Errors in Hydraulic Conductivity Test Analyses
Background
Throughout the CSA and CAP reports HDR provides interpretations and conclusions regarding the
horizontal and vertical variations of groundwater flow directions and rates, and the fate and transport of
COI dissolved in groundwater. The most important site-specific parameter that controls these time -
dependent flow and transport mechanisms is the hydraulic conductivity (also referred to as "permeability")
of the underlying soils and fractured bedrock (Bear, 1979). Hydraulic conductivity (length/time) is a
media -specific measure of the rate at which water can flow through a porous (soil) or fractured (bedrock)
porous medium. Groundwater flow and chemical transport rates are directly proportional to the product of
hydraulic conductivity and the hydraulic gradient (hydraulic head difference between two points divided by
the separation distance; e.g., the water table elevation slope at the Cliffside site). Therefore, accurate
measurement of hydraulic conductivity is critical for understanding the current and future distributions of
COI in soil and groundwater and for evaluating the effectiveness (e.g., cleanup times) of alternative
remedial measures.
In addition, the contrast in hydraulic conductivity between adjacent hydrogeologic units is the key factor in
determining three-dimensional groundwater flow directions and the ultimate fate of dissolved COI. For
example, at the Cliffside site accurate measurement of hydraulic conductivity is critical in evaluating the
potential for: downward chemical migration into the fractured bedrock unit, off-site COI migration in the
D

overburden (soil) or fractured bedrock aquifers, groundwater flow and COI transport into or beneath the
Broad River.
A slug test is one of the standard field methods for measuring hydraulic conductivity (K) using a soil
boring or installed monitoring well. Slug tests were performed in most of the overburden and bedrock
wells at the Cliffside site. In this test the static water level in the open hole (boring) or well casing is
suddenly increased or decreased and the resulting transient change in water level is recorded. Two
commonly -used techniques for quickly changing the water level are the introduction (increases the water
level) and removal (decreases the water level) of a solid rod, or "slug" into the boring or well casing.
These tests are called "falling -head" and "rising -head" tests, respectively. Higher rates of water -level
recovery correspond to higher values of K. The measurements of water level versus time are analyzed
using mathematical models of the groundwater flow hydraulics and information regarding the well
installation (e.g., length of the slotted monitoring well screen and well casing diameter) to compute an
estimate of K.
As discussed below, HDR made significant errors in all of their analyses of field slug test data. Their
analysis errors caused the reported (CSA report) slug test hydraulic conductivity values to be as large as
a factor of two (almost 100 percent) smaller than the correct K values. I discuss the impacts of these
analysis errors on HDR's groundwater flow and chemical transport assessments and the CAP modeling
later in my report.
Overburden Slug Tests
HDR analyzed all of the CSA overburden slug tests in shallow and deep wells with the Bouwer-Rice
(1976) method using a vertical anisotropy, Av = Knorizonrat 1Kverttcat , that is as large as a factor of 100 lower
than the values presented in the CSA report (e.g., compare geometric mean values in CSA Tables 11-10
and 11-11) and used in the CAP modeling (e.g., CAP 1 report Appendix C, Table 2), where K is hydraulic
conductivity. Comparing CSA Tables 11-10 and 11-11, the measured A„for overburden soil units ranges
from 4 to 50. In the calibrated CAP flow model A„ is on the order of 100 for overburden soil. However,
the Bouwer-Rice slug test analyses assumed A„ = 1 for every monitoring well (CSA Appendix H). If the
CAP 1 flow`nodel results (A„ — 100) are used in the Bouwer-Rice analyses all of the measured
overburden hydraulic conductivity values increase by about 70 percent (factor of 1.7), depending on how
the slug -test radius of influence was computed. Using the Tables 11-10/11-11 measured vertical
anisotropies (A„ = 4 to 50) increases all of the measured overburden hydraulic conductivity values (CSA
Table 11-4) by about 20-60 percent.
Since every reported overburden K value in the CSA report (at least for new shallow and deep wells) is
up to 70 percent too low, the actual average chemical transport rates in overburden soils are up to 70
7

percent greater than reported. This site -wide data reduction error also, affects the CAP flow and transport
model calibrations. For example, the transport model developers significantly reduced laboratory
measurements of the soil -water partition coefficient, Kd, for various COI during the transport model
calibration based on comparisons of observed and simulated chemical migration rates. However, if the
correct (i.e., higher) overburden Kvalues had been used in the model calibration the Kd values would not
have been reduced as much (compared to laboratory values). The reason for this is, assuming linear
equilibrium partitioning of COI with soil, the chemical migration rate is proportional to K/Kd (except for Kd
<< 1). The CAP 1 and 2 transport model history matching indicated that the simulated transport rate was
too low, so the model developers reduced the model Kd. In other words, the reductions in calibrated Kd
values would not have been as great if the correct (higher) K values were used in the first place. As
discussed below, the CAP Part 2 transport modeling used Kd values that are generally a factor of about
10 larger than the CAP 1 values; however, the CAP 2 Kd's are still on the order of 10 times smaller than
the measured site-specific Kd's reported in CAP 1 Appendix D and CAP 2 Appendix C. COI sorption to
soil is important because, as discussed below, aquifer cleanup times (i.e., chemical flushing rates) are
generally proportional to the chemical retardation factor, which is directly proportional to Kd, except when
Kd << 1 (Zheng et al., 1991).
Groundwater Flow
Throughout the CSA and CAP reports HDR made several critical assumptions, not supported by data,
regarding the horizontal and vertical groundwater flow directions near the boundaries of the Cliffside site
which impacted their conclusions regarding the ultimate discharge locations for site groundwater and
dissolved COI. Two examples discussed in this section are (i) the relationship between site groundwater
and the Broad River and (ii) groundwater flow directions and the potential for offsite migration of COI.
Broad River and the LeGrand Conceptual Model
Most of the groundwater at the Cliffside site was apparently assumed to discharge into the Broad River
(other than groundwater discharges to small streams such as Suck Creek) according to a generalized
conceptual model (LeGrand, 2004) before actual site-specific hydrogeologic data were analyzed.
Statements to this effect were made at numerous points in the CSA and CAP reports. However, HDR did
not present any site-specific data analyses or groundwater flow modeling that would support this
assumption in either report. In fact, as discussed below, the boundary conditions for the CAP Parts 1 and
2 flow models effectively forced site groundwater to discharge into the river at the downgradient model
boundary.
HDR continued to state this assumption in the CAP 2 report (e.g., Section 3.3.2) even though strong
measured downward groundwater flow components exist next to the Broad River. In CAP 2 Section
3.3.2, HDR also states that "The Broad River serves as a hydrologic boundary for groundwater within the
r;1

shallow, deep, and bedrock flow layers at the site." However, the river cannot be a "hydrologic boundary"
for the deep and bedrock layers when the measured vertical flow direction in these layers is consistently
downward at many locations next to the river (see discussion below), which demonstrates that HDR has
not delineated this inferred 'lower boundary" used in the CAP models. HDR further states in CAP 2
Section 3.3.2 that "the approximate vertical extent of the groundwater impacts is generally limited to the
shallow and deep flow layers, and vertical migration of CO/s is limited by the underlying bedrock." This
statement ignores that fact that groundwater flow across the site is consistently downward from the
impacted deep flow layer to the highly -fractured bedrock aquifer at many locations and that, as discussed
below, 35 exceedances of North Carolina 2L and/or IMAC groundwater standards (and greater than
background concentrations) were measured in samples collected from bedrock wells located inside the
Compliance Boundary..
The LeGrand (2004) guidance document presents a general discussion of groundwater flow patterns that
may occur near streams in the Piedmont and Mountain Region of North Carolina based on ground
surface elevations (i.e., site topography and surface watershed boundaries). However, surface water and
groundwater watersheds commonly do not coincide (Winter et al., 2003). Further, groundwater flow
patterns and rates in bedrock have been found to be poorly related to topographic characteristics (Yin
and Brook, 1992). LeGrand does not present or derive any mathematical equations or quantitative
relationships for groundwater flow near rivers or streams. The author emphasizes that site-specific data
must be collected in order to correctly evaluate river inflow or outflow. In strong contrast to the LeGrand
generalizations, numerous detailed and sophisticated mathematical (analytical and numerical) river -
aquifer models and highly -monitored field studies have been published in the scientific and engineering
literature in the past several decades. What these investigations and applied hydraulic models show is
that the water flow rate into or out of a river or stream and the depth of hydraulic influence within an
underlying aquifer are highly sensitive to several factors, including: the transient river water surface
elevation and slope; river bed topography; bed permeability and thickness; horizontal and vertical
permeability (and thickness) of the different hydrogeologic units underlying the river; transient horizontal
and vertical'hydraulic head variations in groundwater beneath and near the river; and groundwater
extraction rates and screen elevations for neighboring pumping wells (e.g., Simon et al. 2015; McDonald
and Harbaugh, 1988; Bear, 1979; Hantush, 1964).
The CSA investigation did not: measure river bed permeability or thickness; characterize the river
bathymetry; monitor transient water surface elevation variations at more than one location (one average
value was used); collect river bed hydraulic gradient data; measure horizontal or vertical overburden or
bedrock permeability beneath or on the northern side of the river; characterize the geology beneath or
north of the river; measure hydraulic heads in the overburden or bedrock beneath or north of the river; or
consider the hydraulic effects of groundwater extraction from nearby private water supply wells, as
�7

discussed in the following section. With regard to the Cliffside site, much of the data that were collected
in the CSA contradict the LeGrand hypothesis. A strong downward flow component (- 10 feet head
difference) from deep overburden to bedrock was measured at the following locations next to the Broad
River: GWA-21 (near several private bedrock supply wells), GWA-29, IB-3D/GWA-11 BRU, MW-
38D/MW-36BRU, and the entire area between the river and northern portion of the Active Ash Basin as
generally bounded by the 650- to 725 -foot bedrock head contours (compare CSA Figures 6-6 and 6-7).
The vertical flow direction from shallow to deep overburden is also downward in this area located
between the Broad River and the Active Ash Basin (compare CSA Figures 6-5 and 6-6). In addition,
downward groundwater flow was measured at several other locations across the site (CSA Table 11-13).
A similar trend of downward groundwater flow from deep overburden to bedrock in these areas next to
the river was measured in the CAP 2 investigation. Contour maps of vertical hydraulic gradient variations
were not generated for the CSA or CAP Part 2, and HDR did not discuss the significance of downward
hydraulic gradients next to the Broad River and at many other deep/bedrock monitoring well clusters.
These downward groundwater flow measurements are consistent with the hydraulic conductivities of the
bedrock and overburden being of similar magnitude, as discussed above.
The strong and consistent measured downward groundwater flow components immediately adjacent to
the Broad River and at other well clusters indicate that site groundwater is entering the deep fractured
bedrock unit in these areas and that not all of the site groundwater discharges into the river as the site
Conceptual Model and the CAP flow and transport models assume. The downward flow into bedrock
may also be due in part to groundwater extraction from private bedrock water supply wells located near
the eastern property boundary, but in the CSA and CAP investigations HDR assumed these factors
related to the potential for off-site COI migration beneath the river were not important and did not evaluate
them.
Groundwater Flow Directions
The CSA assumptions and analysis errors discussed above have had a strong effect on: the Conceptual
Model development; the site hydrogeologic and COI transport assessment; the construction/calibration
of the CAP flow and transport models; and the simulations of CAP Close Scenarios. The hydrogeologic
assumptions should have been carefully evaluated and tested during the performance of the CSA and as
part of the CAP groundwater flow model construction and calibration to determine whether they were
valid. Instead, the hypotheses appear to have effectively guided the model development and led to
inaccurate interpretations.
As an illustration, because the permeability of the weathered bedrock is similar to the overlying soils at
the Cliffside site the CSA and CAP interpretation that the bedrock acts as a lower confining layer for
groundwater flow and chemical transport is incorrect. In addition, the similarity of the overburden and
10

bedrock aquifer permeability values increases the potential for off-site COI migration toward private water
supply wells. Therefore, the CSA and CAP conclusions that (i) all site groundwater discharges into the
Broad River and (ii) groundwater and dissolved coal -ash constituents are restricted from migrating to
residential water supply wells are not consistent with the data.
The CSA and CAP reports also did not adequately evaluate the three-dimensional groundwater flow field
near and beneath the Broad River. Numerous private water supply wells are located in the following
areas (CSA Figure 4-2): a few hundred feet north of the Broad River and immediately east of the
Compliance Boundary for the Active Ash Basin, less than 1,500 feet from the Active and Unit 5 Inactive
Ash Basins, and less than 1,500 feet from the Active Ash Basin and on the southern shore of the Broad
River (close to the northeastern portion of the Compliance Boundary). Bedrock hydraulic head
measurements (CSA Figure 6-8) for monitoring wells located next to the river (e.g., Wells GWA-32BR,
GWA-11 BRU, GWA-29BR, and GWA-21 BR) indicate a strong easterly bedrock aquifer flow component
from downgradient areas of the site toward these private wells on the southern shoreline. However, CSA
Figure 6-8 does not show these head contours, and the CAP flow model boundary conditions artificially
prevent groundwater from either flowing east or northeast beneath the Broad River (as underflow), or
flowing toward the private wells neat the northeast Compliance Boundary. The CSA and CAP reports
also do not address the large measured downward hydraulic gradients in the northern portion of the
Active Ash Basin and near the river, and their potential relationship to offsite groundwater extraction from
the bedrock aquifer. The CAP flow models were not properly constructed to allow evaluation of these
observed three-dimensional flow patterns due to: the model no -flow boundary condition on•the eastern
and western sides of the grid; the uniform specified head boundary condition in grid cells underlying the
river (i.e., the sloping, west -to -east water surface elevation in the river was not represented in the model);
and the fact that the CAP flow models did not include the effects of groundwater extraction from off-site
water supply wells.
Exceedances of Groundwater Standards
In this section I compare measured groundwater concentrations in shallow, deep, and bedrock
groundwater samples to North Carolina 2L and IMAC standards and show the following: (i) 60 measured
exceedances for several COI at multiple locations on the Compliance Boundary (CB); (ii) an additional
two CB exceedances based on chemical transport modeling I performed; (iii) 36 of the 62 Compliance
Boundary exceedances were greater than the proposed provisional background concentrations (PPBC)
by HDR; (iv) 37 of the 62 Compliance Boundary exceedances were greater than the maximum
concentration at any background well from the same hydrogeologic unit (e.g., shallow, deep, or bedrock)
for a particular constituent; (v) 12 more exceedances were measured in wells located on the Broad River;
11

(vi) 54 additional exceedances were observed in wells screened in the highly -permeable fractured
bedrock unit underlying the ash basin system and located inside the CB; and (vii) the statistical analyses
of groundwater concentrations at shallow monitoring well MW -24D for purposes of defining background
levels were performed incorrectly.
Throughout this report I reference the ash basin compliance boundary and the Duke Energy property
boundary for the Cliffside site as drawn on maps developed by HDR (e.g., CSA Figure 6-2). My reference
to the 'compliance boundary" is only for identification purposes and not an opinion that this boundary as
drawn by HDR is accurate or legally correct.
Summary of Exceedances
Table 1 summarizes exceedances of 2L or IMAC standards in shallow, deep, and bedrock groundwater
samples obtained from monitoring wells located: (i) on the Ash Basin Compliance Boundary (CB) as
drawn by HDR; (ii) on the southern shore of the Broad River (RV), which is the downgradient boundary of
the CAP groundwater flow and chemical transport models; (iii) bedrock wells (BR) located inside the CB;
and (iv) modeled Compliance Boundary concentrations (CBM), using modeling techniques described
below. The proposed provisional background concentrations (PPBC) by HDR are also listed in Table 1.
A total of 33 Compliance Boundary groundwater samples exceeded North Carolina 2L standards, and
IMAC standards were exceeded in an additional 27 samples for these COI: antimony, boron, -chromium,
cobalt, iron, manganese, sulfate, total dissolved solids, and vanadium. I estimated an additional two CB
exceedances dowgradient from wells MW -11 S and GWA-27D for boron based on chemical transport
modeling and measured upgradient concentrations (designated CBM in Table 1). In addition, 39
exceedances of 2L regulatory limits were observed in wells screened in the highly fractured bedrock unit
located inside the CB. An additional 15 bedrock sample concentrations were greater than IMAC limits.
Ten more 2L (plus two IMAC) exceedances were measured in wells located on the Broad River.
A total of 29 of the 35 Compliance Boundary 2L (and 9 of 25 IMAC) exceedances were greater than the
maximum concentration at any background well (from the same hydrogeologic unit; e.g., shallow or
deep) for a particular constituent. All of the Broad River shoreline "RV" exceedances were greater than
background levels. A total of 27 of the 39 bedrock 2L (and 8 of 15 IMAC) exceedances were greater than
the maximum background concentration.
A total of 36 of the 62 Compliance Boundary exceedances were greater than the proposed provisional
background concentrations (PPBC) by HDR.
12

Note that the iso -concentration contours in all of the CSA Section 10 figures are not consistent, and are in
many cases misleading, with regard to chemical transport mechanisms in the subsurface. For example,
the iso -concentration contours in Section 10 generally closely encircle a monitoring well and infer no
subsequent transport downgradient from the well location. This contouring problem is especially
prevalent near the southern shore of the Broad River. Figure 10-65 (cobalt) is a good example of this
practice. These closed contours at the downgradient property boundary suggest that COI transport
beyond the farthest downgradient line of monitoring wells does not occur and that no COI migrate north of
the southern shore of the river. However, the simulated (CAP model) "existing conditions" cobalt
concentration contours in CAP Appendix C are 'open" at the Broad River, indicating transport beneath the
river.
Modeled Compliance Boundary Exceedances
I computed Compliance Boundary (CB) concentrations labeled "CBM" with footnote "e" in Table 1 (MW -
11S and GWA-27D) using a calibrated one-dimensional, analytical chemical transport model (van
Genuchten and Alves, 1982; Equation C5) because the CB at these locations was up to 400 feet
downgradient from the wells and boron is highly mobile in the subsurface. I calibrated the analytical
model to chemical -specific site conditions (i.e., determined model input parameter values) using CAP
transport model simulated concentration versus time curves for "Existing Conditions" (CAP report
Appendix C). The analytical model input parameters in my model were: groundwater pore velocity,
chemical retardation factor, and longitudinal dispersivity. For each constituent, I used the calibrated
analytical model to compute the concentration versus time curve immediately downgradient at the
Compliance Boundary.
Exceedances of Groundwater and Surface Water Standards in Seep Samples
Concentrations in seeps discharging from the active ash basin (upstream toe, adjacent to Suck Creek)
have exceeded North Carolina surface water standards (2B) and 2L and/or IMAC groundwater standards
(e.g., arsenic, chromium, iron, lead, manganese, nickel, selenium, and vanadium; CAP Figures 2-2 and
2-3, CSA Table 7-9). Groundwater discharges to Suck Creek were confirmed by the CAP flow modeling.
Elevated concentrations of boron, calcium, chloride, sulfate, and total dissolved solids were detected in a
surface water sample from Suck Creek (SW -3) collected downgradient from the toe of the active ash
basin upstream dam (page 90 of the CSA report).
The CSA also identified other continuously -flowing seeps as tributaries of the Broad River [e.g., S-1, S-3,
S-6, and S-8; refer to Table 1 in the Topographic Map and Discharge Assessment Plan(DAP)]. Seep S-3
is apparently part of a stream discharging to the Broad River north of inactive units 1-4 (DAP Figure 2).
Seep S-6 is located downgradient from the downstream dam of the active ash basin and coincides with
historical Suck Creek discharge (CSA Appendix I, Figure 1). Concentrations in samples from seep S-6
13

have exceeded relevant surface water 2B standards, and 2L and/or IMAC groundwater standards for
boron, cobalt, iron, manganese, and vanadium. Concentrations in samples from seep S-3 have
exceeded relevant surface water 2B standards for cobalt, iron, manganese, sulfate, thallium and total
dissolved solids. For the CAP 2 sampling round (September 2015) the 2B standard for mercury was also
exceeded at Seep S-1.
Referring to my Table 1, 122 of the seep samples exceeded North Carolina groundwater standards (84
2L exceedances and 38 IMAC exceedances; CSA Table 7-11) for these COI: arsenic, barium, beryllium,
boron, chromium, cobalt, iron, lead, manganese, nickel, sulfate, total dissolved solids, thallium, and
vanadium. These samples were collected at the active ash basin; inactive ash basins 1-4 and 5; and
the ash storage area.
Statistical Analyses of Background Concentrations
Appendix G of the CSA report presents statistical analyses of historical concentrations from Monitoring
Wells MW -24D and MW-241DR, which HDR described as following methods specified by the U.S.
Environmental Protection Agency (EPA, 2009), in an attempt to establish background groundwater
concentrations for the Cliffside site. As outlined in Sections 3.2.1 and 5.5.2 of the EPA guidance
document these data must be checked to ensure that they are statistically independent and exhibit no
pairwise correlation. Groundwater sampling data can be non -independent (i.e., autocorrelated) if the
sampling frequency is too high (i.e., time interval between sampling events is too small) compared to the
chemical migration rate in the aquifer (groundwater pore velocity divided by chemical retardation factor).
Section 14 of the EPA guidance presents methods for ensuring that the Wells MW -24D and MW-24DR
background data are not autocorrelated, but the analyses in CSA Appendix G did not include evaluations
for statistical independence.
As an illustration, "slow-moving" groundwater combined with high chemical retardation (i.e., large soil -
water partition coefficients, Kd), which is the case at the Cliffside site, can lead to the same general
volume of the chemical plume being repeatedly sampled when the monitoring events are closely spaced.
Examining shallow wells at the Cliffside site, the shallow groundwater pore velocity (VP) is in the order of
70 ft/yr (CSA Table 11-14), which is representative of the pore velocity near well MW -241D. Note that
shallow pore velocities are as much as a factor of 100 greater in many areas downgradient of the ash
basin system (e.g., the active ash basin) due to much greater hydraulic gradients (- 10x larger) and larger
hydraulic conductivity (- 10x greater) in these areas. In addition, groundwater pore velocities in deep
overburden and in fractured bedrock are generally more than a factor of 1,000 greater than velocities in
the shallow overburden (CSA Table 11-14).
14

The retardation factors, Rd, based on laboratory Kd measurements (Kd - 10 cm 3/g, or greater) are on the
order of 100 (or greater) for many of the COI (except conservative parameters such as sulfate and
boron). Therefore, the average shallow chemical migration rate at Cliffside (VP/Rd) is on the order of 0.7
ft/yr many of the non-conservative,C01 near well MW -241D, assuming linear equilibrium sorption (refer to
discussion below). For quarterly sampling, the chemical migration distance between sampling rounds is
about 0.2 feet for several COI, which is smaller than the sand pack diameter for the monitoring wells.
Therefore, based on either quarterly or annual monitoring the shallow groundwater samples at Cliffside
are basically representative of the same volume of the plume (i.e., the sandpack, depending on the well
purge volume) for many COI, and any measured sample concentration changes are not due to real
chemical transport effects in the aquifer. In this case, this means that the groundwater samples are non -
independent and that the statistical analyses of background concentrations at Wells MW -24D do not
satisfy the key requirements of the analysis method.
CAP Groundwater Flow Model Underestimates Potential for Off -Site Chemical Migration
My discussions in this section focus on limitations of the CAP groundwater flow model. I focus specifically
on model boundary conditions representing the Broad River; the overall size of the model grid and no -
flow boundary conditions on the western, southern, and eastern grid boundaries; groundwater flow in the
fractured bedrock aquifer; and the potential for off-site groundwater flow in relation to groundwater
extraction from numerous private and public water supply wells located close to the model boundaries,
but not incorporated into the flow model
Broad River Boundary Condition
The CAP Parts 1 and 2 groundwater flow models force all Cliffside site groundwater along the northern
model boundary to discharge directly into the Broad River and underestimate the potential for off-site flow
and chemical migration in fractured bedrock. No -flow boundary conditions defined along the entire
western, eastern, and southern model boundaries prevent any off-site groundwater flow and chemical
transport in these areas (refer to Figures 1 and 5 in Appendix C of the CAP 1 Report). The bottom
surface (bedrock) of the flow model is also assumed to be a no -flow boundary even though the hydraulic
conductivity data and measured downward hydraulic gradients at several monitoring well clusters do not
support this assumption. The only locations where groundwater and dissolved constituents are allowed
to leave the CAP models are streams (e.g., Suck Creek and unnamed tributaries to the west), top -layer
flood plain cells next to the Broad River, and the vertical array of cells underlying Broad River along the
northern grid boundary; these cells are specified as constant -head boundary conditions in which the
head is uniform with depth.
15

This hydraulic representation of the Broad River in the flow model is inaccurate for several reasons. First,
the river bottom is assumed to extend all the way through the unconsolidated deposits and the fractured
bedrock unit, which is not the case. Second, groundwater flow beneath and adjacent to the river is
assumed to be horizontal with zero vertical flow component. Because this boundary condition does not
allow groundwater to flow vertically in areas that underlie the river, the CAP models do not represent
actual site hydrologic conditions. Further, groundwater flow at the Cliffside site is not strictly horizontal
and, as discussed above, many of the vertical hydraulic gradient measurements (including next to the
river) are downward. Third, as represented in the CAP models, neither the lower -permeability river bed
sediments nor the smaller vertically hydraulic conductivity of underlying soils restricts the potential flow
rate into or out of the river (i.e., a perfect hydraulic connection exists between the aquifer and the Broad
River). The actual degree of aquifer -river hydraulic connection was not evaluated in the CSA. In
summary, due to all of these factors the potential for site groundwater and dissolved constituents to
migrate off-site northward beyond the Broad River or eastward as underflow beneath the river cannot be
evaluated with the model.
The CAP models should have represented the Broad River using a "leaky -type" (i.e., river) boundary
condition in the top model layer (McDonald and Harbaugh, 1988), and the model grid should have
extended farther north so that the above factors could have been evaluated during model calibration and
sensitivity analyses. In their reviews of both the CAP 1 and 2 models (submitted with the CAP modeling
appendices), the Electric Power Research Institute third -party peer review team also concluded that the
Broad River should be modeled as a leaky boundary condition instead of using constant heads. The
models also should have included groundwater extraction from the private water supply wells installed at
many points close to the river bank. A river boundary condition incorporates the bed permeability and
thickness, the river water surface elevation, and the simulated hydraulic head in the aquifer (at the base
of the river bed) to dynamically specify a flux (flow rate per unit bed area) into or out of the groundwater
model depending on the head difference between the river and aquifer. Typically, permeability and
vertical hydraulic gradient measurements for the river bed (not collected in the CSA) and flow model
calibration (three-dimensional matching of simulated and measured hydraulic head measurements in the
aquifer) are used to determine a best -fit estimate of river bed conductance (permeability divided by
thickness) in the model. HDR did not perform this routine analysis.
Limitations of No -Flow Boundary Conditions and Small Model Domain Size
The limited areal extent and depth of the CAP Parts 1 and 2 flow and transport model grids prevent the
use of the models as unbiased computational tools that can be used to evaluate off-site migration of coal -
ash constituents. For example, the model grids should have extended farther north and east to
incorporate groundwater extraction from off-site private water -supply wells and allow three-dimensional
16

groundwater flow patterns to naturally develop. The eastern and western no -flow boundaries in the
current CAP models artificially prevent any off-site flow or transport in either the bedrock or overburden
aquifers. The same is true for the entire northern and southern model boundaries despite the fact that
several private homes are located north and east of the Active Ash Basin, and the bedrock hydraulic head
map (CSA Figure 6-7) exhibits a strong easterly flow component in this area. Some additional private
water supply wells are also located close to the northern shore of the Broad River (CSA Figure 4-2).
Artificial limitations created by the northern Broad River boundary condition -are outlined above.
The bottom boundaries of the CAP models should extend much deeper because the hydraulic
conductivity of the fractured bedrock zone is of the same order of magnitude as the overburden soils
based on slug test results. In the present configuration the lower boundaries of the CAP Parts 1 and 2
model grids are only about 50 feet below the bedrock surface (Figure 2 in both the CAP 1 & 2 modeling
appendices). Because several bedrock wells were screened to this depth the bedrock hydraulic
conductivity data collected for the CSA demonstrate that imposing an impermeable model boundary at .
this depth is incorrect (compare similarities of mean overburden and bedrock aquifer permeabilities in
CSA Table 11-10). As discussed above, the strong downward hydraulic gradients between deep and
bedrock wells in the northern portion of the Active Ash Basin also demonstrate that vertical and horizontal
groundwater flow in bedrock is important, and these transport mechanisms need to be accurately
simulated in the CAP models in order to accurately assess the potential for off-site chemical migration.
Off -Site Groundwater Extraction lanored
The CSA and CAP Parts 1 and 2 failed to examine the strong potential for coal -ash constituents from the
Cliffside site to migrate with groundwater to private water supply wells located immediately east and
northeast of the Active Ash Basin. COI may also potentially migrate to private wells located close to the
northern Duke Energy property boundary on the northern side of the Broad River. CSA Figure 4-2 shows
the locations of water supply wells near the site. The basis of my opinion includes the following:
hydraulic conductivity measurements for the overburden and bedrock formations; three-dimensional
variations in measured hydraulic head in the bedrock and overburden units; groundwater concentration
data; and calculations of potential hydraulic head reductions (i.e., drawdown) that could be caused by off-
site groundwater extraction. As discussed throughout my report, neither the CSA nor CAP Parts 1 or 2
investigations addressed the potential for off-site migration.
COI's were detected in several water supply well samples (CSA Appendix B), but the CSA report did not
plot these detections on a map and did not discuss their possible relationship to the Cliffside site.
Appendix B also did not present the well construction details (e.g., well diameter and elevation range of
the well screen or open bedrock interval) so that well dilution effects and potential chemical transport
pathways in the bedrock unit could be evaluated. In addition, the CSA investigations and CAP Part 1
17

modeling did not include these areas east and north of the Cliffside site. The CAP Part 2 flow model did
include a small number of residential wells (13 of the 100 neighboring private wells) located inside the
undersized model domain (east of the active ash basin), but the CAP 2 modeling report (CAP 2, Appendix
B) did not show simulated hydraulic head maps with these residential wells pumping and did not provide
any discussion or analyses of the potential for these wells to capture COI dissolved in groundwater. The
CAP Part 2 also did not increase the model grid size to incorporate the large number of residential water
supply wells located immediately north of the Broad River and downgradient from the active ash basin in
the northeastern portion of the site (CAP 2 Figure 3-3); fix the boundary condition problems; or correct
the model input data errors I have outlined so that the flow and transport models could be used to more
accurately analyze the potential for off-site chemical transport.
Another important model input data error is the bedrock hydraulic conductivity, which is assumed in the
CAP 1 and 2 flow models to be about a factor of ten (10x) lower than the overburden aquifer in different
areas (Tables 2 in CAP 1 Appendix C and CAP 2 Appendix B). The bedrock slug test results show that
the mean bedrock permeability is approximately the same as the overburden permeability. Also, in the
CAP 1 model HDR assumed that the vertical bedrock permeability [ (KBR),,It j was the same as the
horizontal value (i.e., vertical anisotropy, A„ = 1). Without justification or any field measurement of
(KBR),t the CAP 2 model assumed A„ = 10-1,000 in bedrock; at several locations the model assumes
the vertical bedrock permeability is 100 to 1;000 times smaller than the horizontal permeability. These
vertical anisotropy values are extremely large, are highly variable across the site, and do not appear to be
supported by data. By comparison, HDR assumed A„ = 2 in their hydraulic modeling of bedrock slug
tests (CSA Appendix H). In an extensive hydrogeologic study and groundwater model of the Indian
Creek Basin in the southwestern Piedmont of North Carolina by the U.S. Geological Survey (Daniel et al.,
1989) a value of A„ = 1 in bedrock was used by the USGS. This study is especially relevant because the
146 -square -mile Indian Creek model area lies in parts of Catawba, Lincoln, and -Gaston Counties, North
Carolina and is located in the general vicinity of the Cliffside site. Therefore, the CAP 1 and 2 flow
models significantly restrict (incorrectly) groundwater from flowing from the overburden aquifer into the
fractured bedrock unit, which causes the CAP transport models to underestimate the potential for off-site
chemical migration.
Model Significantly Underestimates Leakage Rate from Active Ash Basin
The CAP Part 2 flow model underestimates leachate discharge from the active ash basin by as much as
a factor of 180 in areas of ponded surface water (e.g., refer to CSA Figures 4-5 and 8-2). The CAP 1
model underestimates active basin leakage by as much as a factor of 330. As shown in Figure 5 of CAP
1, Appendix C, the CAP 1 flow model assumes a constant groundwater recharge rate (i.e., leakage rate)
equal to 6.0 inches/year in the active ash basin and all other unlined areas of the site. In the CAP 2 flow
model the active basin leakage rate is assumed to be 11 inches/year (Figure 5 of CAP 2, Appendix B).
18

However, CSA Figure 8-2 (cross-section A -A) shows that the vertical hydraulic gradient through the coal
ash in the downgradient portion of the active ash basin is on the order of unity. Using Darcy's law and the
mean vertical coal -ash permeability of 1.6E-4 cm/sec in CSA Table 11-11, the approximate vertical
leakage rate out of the active basin is about 2,000 inches/year near the Broad River (i.e., -180 times
greater than the specified CAP 2 recharge rate of 11 inches/year; and - 330 times greater than the
specified CAP 1 recharge rate of 6 inches/year).
The CAP flow models should have represented ponded areas of the active ash basin as either constant -
head or leaky -type boundary conditions, which would have allowed the model to simulate a realistic
leakage rate for the active ash basin. The major discrepancies between the measured shallow hydraulic
head maps (CSA Figure 6-5 and CAP 2 Figure 2-2) and the CAP 1 and 2 simulated shallow head maps
(Figure 14 in CAP 1, Appendix C; Figure 15 in CAP 2, Appendix B) clearly show that the CAP flow
models significantly underestimate the hydraulic head beneath the active ash basin due to the fact that
the modeled leakage rate from the active basin is much too low.
Three related impacts of this incorrect active basin boundary condition are that the CAP models
significantly underestimate: (i) vertical groundwater flow rates (by on the order of a factor of 200) through
coal -ash source material in the vicinity of the downgradient portion of the active ash basin; (ii) horizontal
groundwater flow and chemical transport rates downgradient from the active ash basin; and (iii) vertical
flow rates from the overburden aquifer into the fractured bedrock unit beneath ponded areas. This
incorrect boundary condition representation of the active ash basin also causes the CAP models to
significantly underestimate (by on the order of a factor of two or more) both the mass loading of COI into
the Broad River and the corresponding Broad River surface water concentrations (attributable to coal ash
ponds) that HDR estimated with their mixing model (e.g., CAP 2 report Table 4-2 and Appendix D).
CAP Chemical Transport Modeling
Due to model calibration, model construction, and boundary -condition and input -data errors the CAP
models significantly underestimate remediation time frames. As discussed in this section, reasons for this
include significant underestimation of the chemical mass sorbed to soil, failure to account for slow
chemical desorption rates, inaccurate analyses of water -table lowering due to capping, and flaws in the
transport model calibration.
Soil -Water Partition Coefficients and Model Calibration
The fraction of chemical mass sorbed to soil can be represented by the soil -water partition coefficient, Kd
(Lyman et al., 1982). Kd is an especially important parameter at the Cliffside site because for most of the
19

COI the bulk of the chemical mass in the soil is associated with the solid phase (i.e., sorbed to soil grains
rather than dissolved in pore water). In effect, the solid fraction of the soil matrix acts as a large "storage
reservoir" for chemical mass when Kd is large [e.g., metals, many chlorinated solvents, and highly -
chlorinated polycyclic aromatic hydrocarbon (PAH) compounds associated with coal tars and wood -
treating fluids]. Kd is also a very important chemical transport parameter which is used to compute the
chemical retardation factor, Rd, assuming linear equilibrium partitioning of mass between the soil (solid)
and pore -water phases (Hemond and Fechner, 1994):
Rd =1 + pb Kd In,,
where pb is the soil matrix bulk dry density and ne is the effective soil porosity. For example, the
chemical migration rate is directly proportional to hydraulic conductivity and inversely proportional to Rd.
The total contaminant mass in an aquifer is also directly proportional to Rd, as well as aquifer cleanup
times once the source is removed (e.g., Zheng et al., 1991).
Accordingly, it is very important to use accurate Kd values in the CAP Closure Scenario modeling.
Specifically, the CAP Part 1 transport modeling used Kd values that were typically factors of 10 -100 (i.e.,
one to two orders of magnitude) smaller than the measured site-specific Kd's reported in CAP Appendix
D. In contrast, the CAP Part 2 transport modeling used Kd values that are generally a factor of about 10
larger than the CAP 1 values; however, the CAP 2 Kd's are still on the order of 10 times smaller than the
measured site-specific Kd's reported in CAP 1 Appendix D and CAP 2 Appendix C. Further, soil -water
partition coefficients for the CAP Parts 1 and 2 models are much smaller than most values presented in
the literature for the COI (e.g., EPRI, 1984; Baes and Sharp, 1983). This means that, using the actual
measured Kd's for the Cliffside site, the times required to reach North Carolina water quality standards at
the Compliance Boundary are at least a factor of 10 longer (see additional discussion below) -than
cleanup times predicted. by the CAP Parts 1 and 2 transport models for many COI.
The CAP 1 modeling report (CAP 1 Appendix C; Section 4.8) argues that the major Kd reductions were
needed due to the following:
"The conceptual transport model specifies that COis enter the model from the shallow saturated source
zones in the ash basins. When the measured Kd values are applied in the numerical model to CO/s
migrating from the source zones, some COls do not reach the downgradient observation wells where they
were observed in June/July 2015 at the end of the simulation period. The most appropriate method to
calibrate the transport model in this case is to lower the Kd values until an acceptable agreement
between measured and modeled concentrations is achieved. Thus, an effective Kd value results that
likely represents the combined result of intermittent activities over the service life of the ash basin. These
may include pond dredging, dewatering for dike construction, and ash grading and placement. This
approach is expected to produce conservative results, as sorbed constituent mass is released and
transported downgradient."
20

First, considering the approach that was used to develop the chemical transport model (history matching),
it is not true that "the most appropriate method to calibrate the transport model is to lower the Kd values."
The CAP Parts 1 and 2 transport models used an incorrect value (2.65 g/cm3) for the bulk density of
overburden materials; this value is the density of a solid mass of mineral (e.g., quartz) with zero porosity.
The bulk density should have been computed using the total porosity (n) values in CSA Table 11-1 using
the following formula (e.g., Baes and Sharp, 1983):
pb = 2.65 (1- n)
Based on the Table 11-1 values Pb - 1.0 -1.9 g/cm3, which means that the Rd values for the CAP 1 and
2 models were as much as a factor of 2.65 (2.65/1.0) too high before HDR adjusted the Kd values during
calibration. Also, as discussed earlier, the overburden slug test values were about 70 percent too low
due to HDR's data analysis errors. Both of these errors (sorption rate and hydraulic conductivity) resulted
in a modeled transport rate that was up to five times (5x) too low before calibration simply due to data
input errors.
At least two other important factors were not considered during the transport model calibration. At least
two other important factors were not considered during the CAP 1 and 2 transport model calibrations.
First, the groundwater flow models are based on average hydraulic conductivity (K) values within a
material zone, but K distributions in aquifers are highly variable (e.g., varying by factors of 3-10, or more,
over distances as small as a few feet: Gelhar, 1984, 1986, 1987; Gelhar and Axness, 1983; Rehfeldt et
al., 1992; Rehfeldt and Gelhar, 1992; Molz, 2015). The Cliffside site hydrogeology certainly qualifies as
"heterogeneous". This is very important to consider for the CAP transport model calibrations because it is
the high -permeability zones and/or layers that control the time required (Tvaveq ) for a constituent to reach
a downgradient observation point, and HDR used differences in observed versus simulated Ttra1e, (i.e.,
time to travel from sources zones to downgradient monitoring wells) as the justification for lowering
measured Kd values.
Second, the history matching that HDR performed is very sensitive to the assumed time at which the
source (i.e., coal ash) is "turned on" and to the assumed distribution of source concentrations (fixed pore
water concentrations) in source area cells. Section 5.3 of CAP 1 Appendix C explains that the source
was activated 58 years ago in the model:
"The model assumed an initial concentration of 0 within the groundwater system for all Cols at the
beginning of operations approximately 58 years ago. A source term matching the pore water
concentrations for each COI was applied within the Units 1-4 inactive ash basin, Unit 5 inactive ash basin,
active ash basin and the ash storage area at the start of the calibration period. The source concentrations
21

were adjusted to match measured values in the downgradient monitoring wells that had exceedances of
the 2L Standard for each COI in June 2095."
For several reasons it is a major simplification (and generally inaccurate) to use 2015 ash pore water
concentrations to define year -1957 source zone (fixed concentration) boundary conditions. These
reasons include: coal ash was gradually and nonuniformly distributed (spatially and temporally) in ash
basins throughout the 58 -year simulation period (not instantaneously in 1957); it is very difficult (or not
possible) to accurately extrapolate geochemical or ash -water leaching conditions (i.e., predict COI pore -
water concentrations) that existed during the 2015 sampling round to conditions that may .have existed in
1957 and thereafter; the actual source -area concentration distributions are highly nonuniform, but it is not
clear from the CAP modeling reports how "... source concentrations were adjusted to match measured
values... ", or if the source area concentrations were nonuniform. All of these uncertainties are further
magnified when using history matching to calibrate a chemical transport model.
Based on the above model input errors and major uncertainties in hydraulic -conductivity variations and
source -term modeling, it is incorrect to simply reduce Kd values by factors of 10 to 100 below site
measurements (and the large database of literature Kd values) based only on the transport model "history
matching" exercises that HDR performed. My additional comments on the CAP Parts 1 and 2 transport
modeling of Closure Scenarios are listed in the following section.
Geochemical Modeling and Evaluation of Monitored Natural Attenuation
The CAP Part 2 geochemical modeling results do not include quantitative analyses of COI attenuation
rates at the Cliffside site and are only qualitative in nature. In addition, HDR did not incorporate any
source/sink (e.g., precipitation/dissolution) terms representing geochemical reaction mechanisms in the
CAP 2 chemical transport model to evaluate whether such reactions are important compared to
groundwater concentration changes caused by advection, dispersion, and soil -water partitioning. In this
regard, HDR states in Section 2.10 of CAP 2 Appendix B : "A physical -type modeling approach was
used, as site-specific geochemical conditions are not understood or characterized at the scale and extent
required for inclusion in the model." Indeed, the Electric Power Research Institute (e.g., EPRI, 1984;
page S-8) has extensively reviewed subsurface chemical attenuation mechanisms applicable to the "utility
waste environment" and concluded: (i) precipitation/dissolution has not been adequately studied; and (ii)
"Quantitative predictions of chemical attenuation rates based upon mineralogy and groundwater
composition cannot be made because only descriptive and qualitative information are available for
adsorption/desorption mechanisms."
Nonetheless, HDR performed the geochemical modeling to evaluate the technical basis for its MNA
analysis; however, any quantitative MNA analysis must compare mass transport rates and changes (e.g.,
22

grams/year per unit area normal to a groundwater pathline) in the aquifer for the various active transport
mechanisms in order to determine whether MNA is a viable alternative (e.g., produces meaningful
groundwater concentration reductions) at the Cliffside site. In Section 6.3.2 of the CAP 2 report HDR
acknowledges that these quantitative evaluations were not performed in CAP 2 and indicated that they
would need to be completed as part of a Tier III MNA assessment. Nevertheless, HDR suggested in the
CAP 2 report that COI 'concentrations "will' or "may" attenuate over time without completing the
necessary evaluations to reach these conclusions. HDR also states in CAP 2 Section 6.3.4 that "MNA is
an effective correction action because CO/s will attenuate over time to restore groundwater quality at the
CSS site...." and in CAP 2 Section 6.3.3 that "the groundwater model did not allow for removal of COI via
co -precipitation with iron oxides, which likely resulted in an over -prediction of COI transport. Completion
of the Tier 11 assessment described in Appendix H has addressed this issue." I saw no quantitative
analysis or evidence in the CAP 2 report or related appendices to support these claims. In fact, the CAP
2 Appendix H emphasizes that much more geochemical data need to be collected and chemical transport
modeling with a source/sink term must be performed in a Tier III assessment to further assess whether
MNA is a viable remedial alternative.
Therefore, the CAP 2 report fails to provide any quantitative evidence supporting COI attenuation due to
co -precipitation with iron or manganese. The second component of COI attenuation evaluated in
Appendix H is chemical sorption to soil. It is important to note that, although the CAP models did not
incorporate a mechanism for co -precipitation with iron or manganese (or any COI sink term), the CAP
models did simulate attenuation due to sorption. Even with the sorption attenuation mechanism included,
CAP 2 Table 4-1 shows that for both the "existing conditions" and "cap -in-place" scenarios the following
COI will exceed North Carolina groundwater standards at the -Compliance Boundary 100 years into the
future: antimony, arsenic, beryllium, boron, chromium, hexavalent chromium, cobalt, lead, sulfate,
thallium, and vanadium. Further, my Table 1 shows that groundwater standards are currently exceeded
at the Compliance Boundary for barium, cobalt, iron, manganese, nickel, and total dissolved solids (i.e.,
barium, cobalt, iron, manganese, nickel, and TDS contaminant plumes originating in the source areas
have already reached the Compliance Boundary). ,The conclusions of the MNA Tier I analyses (CAP 2
Appendix H, page 18) were that arsenic, barium, beryllium, boron, chromium, cobalt, lead, thallium, and
vanadium showed some evidence of attenuation and should be evaluated further in a Tier II evaluation.
However, the CAP 2 modeling results in Table 4-1 (which included a significant amount of sorption
attenuation) show that all of these COI currently exceed North Carolina groundwater standards at the
Compliance Boundary and are expected to exceed those standard 100 years into the future. All of these
data and CAP 2 modeling results strongly contradict the CAP 2 conclusion that MNA is a viable corrective
action at the Cliffside site.
23

Simulation of Closure Scenarios
As discussed below, CAP 1 Closure Scenario simulations greatly underestimate (by factors of 10 or
more) the time frames required to achieve meaningful groundwater concentration reductions in response
to remedial actions. Compared to the Cap -in -Place (CIP) remedial alternative evaluated in the CAP Part
1, the Excavation Scenario results in COI concentration reductions at the Compliance Boundary that are
generally two to ten times greater compared to Cap -in -Place and best reduces impacts to surface water.
In addition, the time frames to achieve equivalent concentration reductions are at least factors of 2 to 5 (2
- 5x) shorter for excavation compared to cap -in-place for most of the COI; further, several COI
concentrations reduce below 2L or IMAC standards with excavation but remain significantly higher than
the groundwater standards with cap -in-place.
Although the CAP 1 modeling showed that Source Excavation outperforms CIP, the CAP 2 modeling did
not simulate an Excavation closure scenario. Nonetheless, the following comparisons between CIP and
Excavation impacts on groundwater concentrations are valid for both the CAP 1 and 2 model results.
This is because the main difference with the CAP 2 transport model (compared to CAP 1) is that
concentration changes resulting from either CIP or Excavation (if it was evaluated in CAP 2) occur much
more slowly (i.e., — 10x slower) in the CAP 2 model due to the much larger Kd (and Rd) values. The CAP
2 transport model also assumed uniform initial COI concentrations equal to HDR's proposed provisional
background concentrations (PPBC), even though the PPBC exaggerate background levels (see above
discussion) and there are no data to suggest that background concentrations should be spatially uniform.
Despite these changes in the CAP 1 and 2 models, the relative differences in groundwater concentrations
between the two closure scenarios remain about the same if the uniform starting (PPBC) COI
concentrations are subtracted from the simulated concentration versus time curves. For these reasons
the following discussions focus on the CAP 1 modeling results.
Source Concentrations for Cap -in -Place Scenario
In this scenario the CAP 1 flow model predicts cap -induced water -table declines equal to approximately 5
feet (relative to the Existing Conditions simulation) within the Units 1-4 inactive ash basins, 12 feet within
the Unit 5 inactive ash basin (11 feet in the CAP 2 flow modeling), and 10 feet within the active ash basin
(10 feet in CAP 2). However, the geologic cross-sections presented in the CSA show that the saturated
coal ash thickness at several borings is as great as 30-60 feet. This means that under the simulated
Cap -In -Place Scenario most of the coal -ash, which is the source of dissolved COI, would remain
saturated and continue to leach constituents into groundwater in several parts of the ash basin system.
The CAP 1 simulations ignored this fact and set all source concentrations equal to zero (i.e., assumed all
coal ash was dewatered). Therefore, the simulated Cap -in -Place concentrations should be much higher
than the values presented in the CAP Part 1.
24

The groundwater flow model simulations also exaggerate the hydraulic effects of the cap (i.e., overstates
water table lowering) because the no -flow boundary conditions along the entire western, southern, and
eastern grid boundaries prevent flow into the Ash Basin System when the laterally inward hydraulic
gradients are created by capping. In addition, the base of the flow model is assumed to be impervious
even though the bedrock aquifer hydraulic conductivity is about the same as the overburden aquifer; this
artificially restricts upward flow from bedrock into the capped area and exaggerates predicted water table
lowering.
In addition, a site-specific distribution of groundwater recharge values should have been developed for
this and the other simulation scenarios to take into account site-specific topography and soil types (e.g.,
runoff estimation) and climate data (precipitation, evapotranspiration, etc.; e.g., using the U.S. Army
Corps of Engineers HELP Model; Schroeder et al., 1994). The CAP 1 flow model uses an assumed
value of 6 inches year uniformly throughout the model domain even though the actual value is highly
variable across the Ash Basin System and site land surface. Further, as discussed above, HDR should
have used a leaky -type boundary condition to model ponded areas of the active ash basin. The predicted
water table lowering due to capping is very sensitive to the model recharge value, so more effort should
have been made to develop a site-specific recharge -rate distribution.
Slow and Multirate Nonequilibrium Desorption of COI
Since the 1980's the groundwater industry has learned how difficult it is to achieve water quality
standards at remediation sites without using robust corrective actions such as source removal (Hadley
and Newell, 2012, 2014; Siegel, 2014). Two of the key reasons for this in aqueous -phase contaminated
soil are inherently low groundwater or remediation fluid flushing rates in low -permeability zones and slow,
nonequilibrium chemical desorption from the soil matrix (Culver et al., 1997, 2000; Zheng et al., 2010). A
good example of this is the "tailing effect" (i.e., very slow concentration reduction with time) that is
commonly observed with pump -and -treat, hydraulic containment systems. These factors are also related
to the "rebound effect" in which groundwater concentrations sometimes increase shortly after a
remediation system is turned off (Sudicky and Illman, 2011; Hadley and Newell, 2014; Culver et al.,
1997).
The CAP 1 and 2 flow models use different permeability (K) zones, but the scale of these zones is very
large and within each zone K is homogeneous even though large hydraulic conductivity variations (e.g.,
lognormal distribution) are known to exist at any field site over relatively small length scales (Molz, 2015).
Moreover, the CAP transport models assume linear, equilibrium soil -water partitioning which corresponds
to instantaneous COI release into flowing groundwater. The transport code (MT3D) has the capability of
simulating single -rate nonequilibrium sorption, but the Close Scenario simulations did not utilize this
modeling feature. Slow desorption of COI can also be expected at the Allen site because sorption rates
25

are generally highly variable, and multi -rate (Culver et al., 1997, 2000; Zheng et al., 2010), and Kd
values are nonuniform spatially (Baes and Sharp, 1983; EPRI, 1984; De Wit et al., 1995). The CAP flow
and transport models can be expected to significantly underestimate cleanup times required to meet
groundwater standards at the compliance boundary because they do not incorporate these important
physical mechanisms.
Adequacy of the Kd Model for Transport Simulation
The laboratory column experiment effluent data (e.g., CAP 1 Appendix D) generally gave very poor
matches with the analytical (one-dimensional) transport model used to compute Kd values. Since the
CAP transport model solves the same governing equations in three dimensions, the adequacy of the Kd
modeling approach for long-term remedial simulations should have been evaluated in much more detail in
the modeling appendix.
The transport modeling also did not evaluate alternative nonlinear sorption models such as the Freundlich
and Langmuir isotherms (Hemond and Fechner, 1994), which are input options in the MT31D transport
code. Several of the batch equilibrium sorption experiments (CAP 1 Appendix D) exhibited nonlinear
behavior, and such behavior is commonly observed in other studies (e.g., EPRI, 1984). However, HDR
only computed linear sorption coefficients (i.e., Kd) for the Cliffside site in CAP Part 1. In CAP Part 2 HDR
did fit Freundlich isotherms to the batch sorption data for selected COI (CAP 2 Appendix C, Tables 1-8)
but did not use these Freundlich isotherm results in the CAP 2 transport modeling. De Wit et al. (1995)
showed that the nonlinear sorption mechanism is similar in importance to aquifer heterogeneities in
extending remediation time frames.
Closure Scenario Time Frames
As outlined in my report, the CAP Part 1 chemical transport model underestimates the time intervals
required to achieve groundwater concentration reductions (i.e., achieve groundwater quality restoration)
by factors that are at least on the order of 10 to 100. In other words, the CAP 1 transport model
significantly overestimates the rate at which concentrations may reduce in response to remedial actions
such as capping or source removal. This is due to several factors, including major errors in model input
data, model calibration mistakes, field data analysis errors, and oversimplified model representation of
field conditions (e.g., hydraulic conductivity) and transport mechanisms (e.g., chemical
sorption/desorption). These limitations of transport models for realistically predicting cleanup times have
been recognized by the groundwater industry for the past few decades based on hands-on experience at
hundreds of extensively -monitored remediation sites.
Even if we ignore the factors of 10 or more errors in cleanup time predictions with the CAP 1 model, the
remediation time frames for the Excavation Scenarios are still more than two centuries for several
26

constituents due to slow groundwater flushing rates from secondary sources (surrounding residual soil)
left in place after excavation and due to high chemical retardation factors for most of the COI. However,
excavation of secondary -source material would further accelerate cleanup rates under this alternative.
The CAP 1 simulated Cap -In -Place concentration reduction rates are much slower, compared to
excavation, but are also incorrect (i.e., overestimated) because the cap -induced water -table lowering is
insufficient to dewater all of the source -area coal ash, as discussed above, and the CAP 1 and 2 flow
models overestimate cap -induced water -table lowering due to boundary condition errors. Furthermore,
these simulation times are well beyond the prediction capabilities of any chemical transport model for a
complex field site (especially one that is as geochemically complex as the Cliffside site). The historical
model -calibration dataset (1957-2015) is also significantly smaller than the predictive (remediation) time
frames. In addition, the "history matching" technique used to calibrate the transport model (e.g., major
reduction in measured Kd values) was not performed correctly by HDR.
Cap -In -Place versus Excavation Closure Scenarios
Although the the CAP 1 model underestimates remediation time frames, the CAP 1 Closure Scenario
simulations demonstrate several significant advantages of excavation for restoring site groundwater
quality versus cap -in-place. First, predicted COI concentration reductions in groundwater downgradient
from the ash basin system are generally factors of 2-10 greater with excavation compared to cap -in-place
(e.g., refer to most of the simulated concentration versus time curves in CAP 1 Appendix C). Further, if
HDR had correctly performed the CAP 1 cap -in-place simulations the predicted CIP concentrations would
be much higher because predicted water -table lowering due to the cap would be insufficient to dewater all
of the coal ash. Second, North Carolina 2L or IMAC standards for many COI (antimony, arsenic,
chromium, hexavalent chromium, cobalt, nickel, thallium, vanadium) are not achieved by cap -in-place but
are achieved by excavation (e.g., CAP 1 Appendix C Figures 13, 20, 21, 26, 27, 28, 29, 30, 31, 33, 34,
36, 37, and 39). Third, the time frames to achieve equivalent concentration reductions are at least factors
of 2 to 5 shorter for excavation compared to cap -in-place; further, several COI concentrations reduce
below 2L or IMAC standards with excavation but remain significantly higher than the groundwater
standards with cap -in-place.
Even though the CAP 1 modeling demonstrated that the CIP closure alternative would be much less
effective than excavation, and that CIP would only dewater about 20-40 percent of the saturated coal -ash
thickness in many areas, HDR eliminated excavation from consideration in CAP 2. In Section 7.1 of the
CAP 2 report HDR assumes that "Evaluation of the geochemical modeling indicated COls are attenuated
by a combination of sorption and/or precipitation" and that "Based on review of the groundwater modeling
results, COls with sorption coefficients similar to or greater than arsenic are immobilized by sorption ,
and/or precipitation .....". As discussed above, HDR provided no quantitative analysis or evidence in the
CAP 2 report or related appendices to support this claim. Further, sorption is not a mechanism that
27

"immobilizes" a dissolved consituent; sorption only slows down the rate of transport proportional the
chemical retardation factor. Considering that up to 80 percent of the coal -ash source material would
remain saturated with CIP and that multiple exceedances of groundwater standards at the Compliance
Boundary currently exist (with no historical data to indicate that these Compliance Boundary
concentrations are decreasing with time), it is not reasonable to make sweeping assumptions about future
concentration changes. Tier III MNA analyses require rigorous quantitative evaluations using the CAP
transport model with a source/sink term that incorporates geochemical reactions to support MNA as a
viable corrective action. CAP 2 did not provide this information.
As discussed above, the CAP Part 2 flow model did include a small number of residential wells (13 of the
100 neighboring private wells), but the CAP 2 modeling report (CAP 2, Appendix B) did not show
simulated hydraulic head maps with these residential wells pumping and did not provide any discussion
or analyses of the long-term potential for these wells to capture COI dissolved in groundwater. Further,
the private bedrock wells that HDR chose to include in the CAP 2 model appear to be located upgradient
from the active ash basin; HDR should have included all of the private wells located near the northern
bank of the Broad River (in a downgradient direction from the ash basin system) and near the
northeastern site boundary which is downgradient from the active ash basin, as I describe above. In CAP
2 section 4.1.5 HDR discusses that fact that the CAP 2 flow model was used to compute 1 -year, reverse
particle pathlines for these bedrock residential wells (Figure 18 in CAP 2 Appendix B) to determine their
short-term groundwater capture zones. However, the residential well reverse pathline tracing should
have been performed for a much longer time period (e.g., from the beginning of coal ash disposal to the
present) to evaluate whether COI may have migrated from source areas to these wells. In addition, if
HDR had extended the CAP 2 model grid much farther to the north and east the capture zones for the
remaining 87 private water supply wells could have been determined, as I discuss earlier in my report.
The CAP Closure Scenarios do not include hydraulic containment remedial alternatives (e.g., gradient
reversal) for the bedrock aquifer that would address the risk of off-site COI transport. As discussed
above, the CSA data show many exceedances of groundwater standards in bedrock not only at the
compliance boundary but also inside the CB. In addition, strong downward groundwater flow components
from the deep overburden to bedrock aquifers were measured during the CSA at multiple locations
across the site, including the southern shoreline of the Broad River. The cap -in-place alternative does not
address either concentration reduction or off-site chemical migration control in the fractured bedrock
aquifer.
The CAP Parts 1 and 2 do not assess whether water quality standards will be achieved in the tributaries
and wetlands between the ash basins and the Broad River [e.g., seep locations S-3 or S-6 (Broad River
tributaries) or the wetland located along Suck Creek downgradient from the upstream dam of the active
28

ash basin] under -any closure scenario. As discussed above, for the cap -in-place scenario a significant
fraction of the source material will remain saturated and dissolved COI will continue to migrate with
groundwater toward these seep locations. Although unaddressed by the model, COI concentration
decreases in groundwater and unsaturated zone pore water due to source removal would also reduce
impacts to tributaries and wetlands that are influenced by the ash basins.
Conclusions
Based on my technical review and analyses of the referenced information for the Cliffside site I have
reached the following conclusions:
• A total of 62 Compliance Boundary groundwater samples exceeded North Carolina groundwater
standards for these COI: antimony, boron, chromium, cobalt, iron, manganese, sulfate, total
dissolved solids, and vanadium. Of these 62 exceedances, 36 were greater than the proposed
provisional background concentrations by HDR;
• The statistical analyses of shallow background groundwater concentrations at the Cliffside site
(well MW -24D) are invalid. The time periods between groundwater sample collection from this
well are too small and the concentration data are not independent;
• There is a significant risk of chemical migration from the ash basin to neighboring private water
supply wells in fractured bedrock. The design of the CAP flow and transport models prevents the
potential for off-site migration from being evaluated;
• The limited CAP model domain size; the no -flow boundary conditions along the western,
southern, and eastern boundaries; and incorrect hydraulic boundary condition representations of
the Broad River and the active ash basin prevent simulation and analysis of off-site COI
migration;
• The CAP Closure Scenario simulations greatly underestimate (by factors of 10 or more) the time
frames required to achieve meaningful groundwater concentration reductions in response to
remedial actions. This is due to oversimplification of field fate and transport mechanisms in the
CAP model and several model input errors;
• The simulated water table lowering for the Cap -in -Place Scenario is more than a factor of five too
small at several locations in the ash basin system in order to dewater all source material; and the
actual cap -induced water table elevation reduction would be much less than predicted due to the
incorrect no -flow boundary conditions. Therefore, the remediation time frames for this scenario
would be much greater because.a large percentage of the source zone would still be active with
the cap installed;
29

• For either the Existing Condition or Cap -in -Place Model Scenario groundwater concentrations of
coal -ash constituents much higher than background levels will continue to exceed North Carolina
groundwater standards at the Compliance Boundary because saturated coal -ash material and
secondary sources will remain in place;
• Due to an incorrect boundary -condition representation of the active ash basin, the CAP models
underestimate by a factor of two or more both the mass loading of COI into the Broad River and
the corresponding Broad River water concentrations (attributable to coal ash ponds) estimated by
the groundwater/surface-water mixing model;
• Source -area mass removal included in the Excavation Scenario results in COI concentration
reductions at the Compliance Boundary that are generally two to ten (2 - 10x) times greater
compared to Cap -in -Place and best reduces impacts to surface water. In addition, the time
frames to achieve equivalent concentration reductions are factors of two to five (2 - 5x) shorter for
excavation compared to cap -in-place, and source removal reduces the number of COI that will
exceed North Carolina groundwater standards in the future. Additional excavation of secondary
sources would further accelerate concentration reductions;
• The CAP simulations show that source excavation reduces groundwater concentrations for many
COI below North Carolina groundwater standards (antimony, arsenic, chromium, hexavalent
chromium, cobalt, nickel, thallium, vanadium), but cap -in-place closure does not;
• The CAP Part 2 geochemical modeling and monitored natural attenuation (MNA) evaluations do
not provide the required quantitative analyses (e.g., numerical transport modeling) of COI
attenuation rates necessary to support MNA as a viable corrective action and are only qualitative
in nature. The CAP 2 chemical transport modeling, which included attenuation by sorption,
demonstrated that MNA is not an effective remedial option for several COI (e.g., antimony,
arsenic, beryllium, boron, chromium, hexavalent chromium, cobalt, lead, sulfate, thallium, and
vanadium);
• The CAP Closure Scenarios do not include hydraulic containment remedial alternatives for the
bedrock aquifer and do not address the risk of off-site COI transport. CSA data show multiple
exceedances of groundwater standards in bedrock not only at the compliance boundary but also
inside the CB. The cap -in-place alternative does not address either concentration reduction or
off-site chemical migration control in the fractured bedrock aquifer; and
• Future Compliance Monitoring at the site should include much more closely -spaced Compliance
Wells to provide more accurate detection, and the time intervals between sample collection
i should be large enough to ensure that the groundwater sample data are statistically independent
to allow accurate interpretation of concentration trends.
30

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