NC0005363_Comments to Draft on behalf of Winyah Rivers Foundation_20161208

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421
CHAPEL HILL, NC 27516-2356
December 8, 2016
VIA EMAIL AND U.S. MAIL
Mr. S. Jay Zimmerman, Acting Director
DENR Division of Water Resources
Attm Weatherspoon WW Permit
1617 Mail Service Center
Raleigh, N.C., 27699-1617
[e-mail]
[e-mail]
{i
i DEC 13 2016
DIVISIUN OF WATER RESOUR�ES
-- _- DIRECTOR'S OFFICE f
Re: Draft NPDES Wastewater Permit — Weatherspoon Steam Station,
#NC0005363
Dear Mr. Zimmerman:
On behalf of Winyah Rivers Foundation, the Southern Environmental Law Center
submits the following comments on the draft National Pollutant Discharge Elimination System
("NPDES") permit noticed for public comment by the North Carolina Department of
Environmental Quality ("DEQ"), Division of Water Resources ("DWR"), which purports for the
first time to allow Duke Energy Carolinas LLC ("Duke Energy") to discharge increased and in
many cases unlimited pollution from the Weatherspoon coal ash site into the Lumber River,
Jacob Swamp, and other waters of North Carolina and the United States.
As set forth below, the proposed permit violates the Clean Water Act because, among
other things: it allows unlimited toxic pollution of the Lumber River and Jacob Swamp; it
authorizes a wastewater treatment facility to malfunction and leak wastewater; it illegally turns
North Carolina streams into wastewater ditches with no clean water protections; it puts in place
excessive and ineffective limits for many toxic pollutants; and it reduces substantially clean
water protections that have been contained in NPDES permits for the Weatherspoon facility for,
decades.
This proposed permit tries to allow Duke Energy to dump the water out of its
Weatherspoon coal ash lagoon into the Lumber River and Jacob Swamp without any protections
for toxic substances; to legalize Duke Energy's longstanding violations of the Clean Water Act
and North Carolina law which DEQ has allowed to continue without taking effective
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville - Richmond • Washington, DC
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enforcement action; and to allow Duke Energy leave its coal ash in an unlined pit which will
pollute Robeson County for decades to come.
I. Introduction
. Duke Energy stores approximately 1.5 million tons of coal ash in an unlined pit that
discharges into the Lumber River and Jacob Swamp. This coal ash extends down 34 feet deep,
sitting and leaching in the groundwater that flows through the basin. Duke Energy has been
dumping coal. ash at -the site for over 60 years, since 1949. The coal ash in the basin is held back
only by a%dike made of earth that leaks. The coal ash lagoon is authorized to discharge
wastewater only through a single outfall that empties into a cooling pond, which in turn
discharges .directly into the Lumber River.
' The Lumber River is an important cultural, recreational, and economic resource for North
Carolii--a;and
;for Robeson and surrounding counties. The Lumber River holds the rare honor of
being designated as a National Wild and Scenic River, as well as a North Carolina Natural and
Scenic River. It was voted one of North Carolina's Ten Natural Wonders in a contest held by
Land for Tomorrow, a coalition dedicated to supporting the preservation of North Carolina's
land and water resources. It is home to the Lumber River State Park, as well as the Lumbee
tribe. Approximately 138,000 people rely on drinking water downstream of the leaking, unlined
coal ash pit at Weatherspoon.
The Lumber River hasalready been subjected to the impacts of Duke Energy's coal ash
at Weatherspoon. In 2001, a breach of an internal dike at the Weatherspoon coal ash basin led to
an unauthorized release of wastewater. Thallium, manganese, and other pollutants have been
detected in groundwater near the Weatherspoon coal ash pit.
Duke Energy's own reports and the permit itself admits that illegal leaks from the
Weatherspoon coal ash lagoon are flowing into Jacob Swamp.
DEQ has presented sworn testimony that similar seeps at other sites violate state law and
that "without ... taking corrective action," these seeps "pose[] a serious danger to the health,
safety and welfare of the people of the State of North Carolina and serious harm to the water
resources of the State." 1 Since filing this complaint, however, DEQ has done nothing to require
Duke Energy to stop violating the law and its permits at its coal ash sites across the state.
Rather than following through on its sworn statements and publicly -announced intention
to obtain injunctive relief and corrective action, DEQ's draft permit proposes to paper over the
numerous leaks emerging from Duke Energy's coal ash wastewater treatment lagoon.
Duke Energy has faced extensive public pressure and litigation by Winyah Rivers
Foundation and other community organizations in North Carolina to force Duke Energy to
address its primitive unlined and leaking coal ash storage in North Carolina. In May of 2015,
I Attachment 1, Verified Complaint & Motion for Injunctive Relief, State of North Carolina ex rel. N.C. DENR,
DWQ v. Duke Energy Progress, LLC, No. 13 CVS 11032 (Wake Co., August 16, 2013), at ¶ 204.

Duke Energy operating companies, including the owner of the Weatherspoon coal ash lagoon,
pleaded guilty 18 times to 9 coal ash crimes across North Carolina. These crimes included
unpermitted coal ash lagoon discharges very much like those flowing from the Weatherspoon
coal ash lagoon. Duke Energy operating companies paid a $102 million fine, and they are under
nationwide criminal probation. Under court orders, the criminal plea agreement, statutes,
regulatory requirements, and settlement agreements with conservation groups, Duke Energy is
now required to excavate all the coal ash from unlined coal ash pits at 8 of its 14 coal ash storage
sites in North Carolina, and all its sites in South"Carolina. In addition, in response to this intense
public and legal pressure and stronger regulatory requirements, Duke Energy has announced that
it will empty the water from all its coal ash lagoons in North Carolina.
However, DEQ's proposed permit allows Duke Energy to empty the Weatherspoon coal
ash lagoon without basic limits for dangerous pollutants. And it attempts to characterize
naturally -flowing waters at the Weatherspoon site as Duke Energy's private wastewater disposal
channels.
The Weatherspoon site is also located in an area that is prone to flooding. The cooling
pond, which is adjacent to the coal ash pond, sits in the 100 -year flood plain. Just a few months
ago, in October of 2016, flood waters resulting from hurricane Matthew overflowed into the
cooling pond. Yet DEQ's proposed permit would allow Duke Energy to discharge coal ash
wastewater into the cooling pond without limits on any of the toxic pollutants or heavy metals in
coal ash.
. This proposed permit fails to protect the public and public waters and violates the Clean
Water Act. DEQ must require that Duke adopt the best available technology to treat the coal ash
polluted water before it is dumped into the Lumber River and Jacob Swamp, as DEQ has
required at other coal ash sites in Wilmington and Charlotte, and it must require Duke Energy to
stop the leaks and discharges of polluted wastewater.
II. Permit Comments
A. The Proposed Permit Violates the Clean Water Act Because It Does Not Protect the
Lumber River As Water Is Emptied Out Of the Ash Basin.
DEQ'proposes to allow Duke Energy to pump all its coal ash polluted water from the
Weatherspoon coal ash lagoon into a cooling pond that discharges directly into the Lumber
River.2 .In order to empty the ash basin of water, Duke Energy must first "decant" the basin,
which means that all of the coal ash polluted water that has been sitting in the ash basin for
untold years will be pumped into the cooling pond -and ultimately the Lumber River—over a
period of weeks or months. Yet the proposed permit does not even mention decanting, and
provides no limits at all during decanting for any coal ash pollutants discharged into the cooling
pond, including dangerous pollutants like arsenic, selenium, mercury, and thallium.3
2 Weatherspoon Draft NPDES Permit at 5.
s Id. (imposing limits during dewatering only).
3

Similar fatal defects are present in the section of the permit governing the "dewatering"
of the ash, which is the phase that follows decanting and involves removing the "interstitial
water"—the most heavily polluted water that is mixed in with the ash or in direct contact with
the ash:4 Unlike the decanting phase, DEQ's proposed permit does include some limits on
releases from the ash basin during dewatering. However, these limits apply only to flow, total
suspended solids, oil and grease, and pH. DEQ once again places no limits on the amount of
contamination that can be released during dewatering for the most dangerous pollutants,
including arsenic, thallium, selenium, mercury, chromium, zinc, barium, antimony, and boron.5
DEQ's proposed permit for Weatherspoon allows Duke Energy to escape any limits for
all of these known contaminants as it pumps millions of gallons of water out of the ash basin. In
fact, Duke is not even required to monitor for these pollutants as it pumps the coal ash water out
during the decanting phase, and is required to monitor only some of the known coal ash
pollutants during the dewatering phase.6
In addition, DEQ proposes to allow Duke Energy to pump the coal ash wastewater into a
cooling pond that is located in a floodplain. This cooling pond was flooded as recently as
October of 2016 in the aftermath of hurricane Matthew. It is therefore especially important for
DEQ to place appropriate limits on the coal ash contaminants entering this cooling pond. Yet
DEQ has failed to do so in its proposed permit.
DEQ's proposal also fails to set basic limits on these pollutants as they're discharged
from the cooling pond into the Lumber River. The cooling pond discharges to the Lumber River
during maintenance activities and extreme rainfall events. Yet DEQ's proposed permit places no
limits on the vast majority of pollutants—including thallium; selenium, chromium, zinc, barium,
antimony, copper, lead, and boron—discharged from the coal ash wastewater in the cooling pond
into the Lumber River. As a result, this proposed permit abandons the Lumber River to
unlimited amounts of many toxic pollutants discharged by Duke Energy from its coal ash
polluted water.
In contrast, permits for other Duke Energy coal ash sites have limits for these dangerous
pollutants during the decanting and dewatering phases. For example, the final permits for Duke
Energy's Riverbend and Sutton facilities provide common-sense limits to protect people from
unsafe levels of arsenic, selenium, and mercury as the water is pumped out of these ash basins.7
The people living around and downstream of Weatherspoon deserve the same protections as the
communities near the Riverbend plant in Charlotte and the Sutton plant in Wilmington.
The proposed permit for Weatherspoon does include limits on arsenic discharging into
the Lumber River: a daily maximum of 6,053 micrograms per liter, and a monthly average of
2,813 micrograms per liter. But these limits are 120 and 280 times higher than the limits that
DEQ has applied at other sites, like Riverbend and Sutton.8
4 Id.
5 Id
6 id
Riverbend Final NPDES Permit at 4, Part I, Section A. (2.).
8 Weatherspoon Draft NPDES Permit at 3.
G!

DEQ's failure to include basic limits in the Weatherspoon permit not only betrays the
public's interests in the Lumber River, it also blatantly violates the Clean Water Act. Under the
Clean Water Act, polluters must control their discharges of pollutants using the best available
technology economically achievable ("BAT"): "such effluent limitations shall require the
elimination of discharges of all pollutants if the Administrator finds ... that such elimination is
technologically and economically achievable."9 The EPA requires that "[t]echnology-based
effluent limitations shall be established under this subpart for solids, sludges, filter backwash,
and other pollutants removed in the course of treatment or control of wastewaters in the same
manner as for other pollutants."lo
In the absence of promulgated effluent limitation guidelines, the NPDES permit writer
must use best professional judgment ("BPJ") to determine the BAT standard applicable to the
coal ash discharges at Weatherspoon.11 When applying BPJ, "[i]ndividual judgments []take the
place of uniform national guidelines, but the technology-based standard remains the same." 12 In
other words, the DWR must operate within strict limits when identifying BAT based on BPJ.
The first step in identifying BAT is identifying available technologies. At a minimum,
technological availability is "based on the performance of the single best -performing plant in an
industrial field." 13 In other words, if the technology is being applied by any plant in the industry,
it is achievable. 14 But determination of technological availability is not limited to a single
industrial field. "Congress contemplated that EPA might use technology from other industries to
establish the [BAT]."15 International facilities can also be used to define BAT.16 EPA's
NPDES Permit Writers' Manual states that "BAT limitations may be based on effluent
reductions attainable through changes in a facility's processes and operations.... even when
those technologies are not common industry practice."'. 7 Even pilot studies and laboratory
9 33 U.S.C. § 1311(b)(2)(A).
10 40 C.F.R. § 125.3(g).
11 33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3; 15A N.C. Admin. Code 2H.01 18.
12 Texas Oil & Gas Ass'n v. U.S. E.P.A., 161 F.3d 923 (5th Cir. 1998).
13 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").
14 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").
" Id. at 453.
16 Am. Frozen Food Inst. v. Train, 539 F.2d 107, 132 (D.C. Cir. 1976).
17 EPA, NPDES Permit Writers' Manual (Sept. 20 10) at p. 5-16, available at:
https://nepis.epa.gov/Exe/ZyNET.exe/P 1009L3 5.TXT?ZyActionD=ZyDocument&Client=EPA&Index=2006+Thru
+2010&Docs=&Query=&Time=&EndTime=&SearchMethod=l&TocRestrict=n&Toc=&TocEntry=&QField=&QF
ieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=O&ExtQFieldOp=O&XmlQuery=&File=D%3 A%5Czyfiles
%5 Clndex%20Data%5 C06thru 10%5 CTxt%5 C00000023 %5 CP 1009L3 5.txt&User=ANONYMOUS &Password=an
onymous&SortMethod=h%7C-
&MaximumDocuments=l&FuzzyDegree=O&ImageQuality=r75g8/r75g8/xl50y15Og 16/i425&Display=hpfr&DefSe
ekPage=x&SearchB ack=ZyActionL&Back=ZyActionS&B ackDesc=Results%20page&MaximumPages=l &ZyEntr
y=1 &SeekPage=x&ZyPURL.

studies can be used to establish BAT; the technology need not be in commercial use to be
considered available. 18
In sum, BAT requires "a commitment of the maximum resources economically possible
to the ultimate goal of eliminating all polluting discharges." 19
There can be no doubt that there are technologies available so that Duke Energy can
remove large amounts of pollutants from its coal ash polluted water before it is discharged into
the Lumber River. In fact, DEQ has already imposed such limits for Duke Energy's "decanting"
and "dewatering" of its Sutton (Wilmington) facility and its Riverbend (Charlotte) facility. Duke
Energy is using wastewater treatment technologies to achieve those limits at those locations.
These same limits and those same technologies can and should be used for Weatherspoon.
In addition, Dominion Energy in Virginia has in place wastewater treatment facilities at
its Bremo facility on the James River and its Possum Point facility on the Potomac, where it is
pumping out water from coal ash lagoons. These facilities are treating coal ash polluted water
and meeting tightened standards for coal ash pollutants. Duke Energy can use the same
technology here.
The same limits that protect the waters of Charlotte and Wilmington should be in this
permit to protect the waters of Robeson County, especially the Lumber River.
B. The Draft Permit Would Illegally Authorize the Weatherspoon Wastewater
Treatment Plant to Leak.
The Weatherspoon coal ash lagoon is permitted as a wastewater treatment facility. It is
required to contain and treat wastewater and to discharge the treated water (presumably with
pollutants removed) through a designated outfall. A wastewater treatment facility that leaks is
not a properly functioning wastewater treatment facility. Instead, it is a malfunctioning system
that discharges untreated, polluted wastewater from undesigned holes in the wastewater
treatment plant.
These leaks .violate the basic purpose and basic provisions of the existing and all prior
permits, even provisions that remain in the proposed permit. The Weatherspoon permit
authorizes the operation of a wastewater treatment plant, and the Standard Conditions in the
permit for that wastewater treatment facility state that "pollutants removed in the course of
treatment or control of wastewaters shall be utilized/disposed of in accordance with NCGS 143-
215.1 and in a manner such as to prevent any pollutant from such materials from entering
waters of the State or navigable waters of the United States except as permitted by the
Commission." (known as the "Removed Substances" provision).20 Of course, a properly
operated and maintained wastewater treatment plant discharges only as designed and does not
spring leaks fiom its sides and bottom. DEQ's attempt to authorize these polluted seeps is
18 See American Paper Inst. v. Train, 543 F.2d 328, 353 (D.C. Cir. 1976).
19 EPA v. National Crushed Stone Assn, 449 U.S. 64, 74 (1980) (emphasis added).
2. Attachment 2, NPDES Permit Standard Conditions at 8 (Nov. 9, 2011) (emphasis added).
G1

therefore completely at odds with the longstanding prohibition against such releases in the
Weatherspoon permit's Removed Substances provision, as describe more in Section F below.
In other words, a wastewater treatment facility cannot operate properly or legally if it
receives wastewater and then spews it into the environment, and into the waters of the state and
the United States, outside the designed treatment system. By malfunctioning in that way, a
wastewater treatment facility would be a wastewater transmission facility, leaking and disposing
of dirty wastewater into the surrounding environment.
But that is what this proposed permit tries to allow. It tries to legalize defects in the
wastewater treatment facility—flows of untreated wastewater containing coal ash pollutants—
that are illegal under the current permit .21 And it even proposes to legalize future failures in the
wastewater treatment facility, if it cracks or springs a leak in the future. 22
There is no justification for these changes. No aspect of Duke Energy's wastewater
treatment system requires new outfalls into Jacob Swamp; on the contrary, its system is leaking
in the same way it has illegally leaked for years. DEQ is simply attempting to legalize Duke
Energy's ongoing, illegal discharges.
This is as clear an example as possible of a proposed permit that illegally eliminates or
reduces the protections of the nation's waters from pollution, in violation of the anti -backsliding
requirements of the Clean Water Act. The Clean Water Act's NPDES permitting program is
structured around progressive improvements in pollution control over time. The Clean Water
Act permit is a National Pollutant Discharge Elimination System permit that is required to make
progress towards Congress's "national goal" of eliminating discharges of pollutants to waters of
the United States.23
For this reason, the Clean Water Act includes anti -backsliding requirements to ensure
that the limits and conditions imposed new or modified NPDES permits for a facility are at least
as stringent as those in previous permits. 24 As the Clean Water Act regulations make clear,
"when a permit is renewed or reissued, interim effluent limitations, standards or conditions must
be at least as stringent as the final effluent limitations, standards, or conditions in the previous
permit ...."25 The Clean Water Act's anti -backsliding requirements apply to all NPDES permit
provisions, standards, and conditions, not just effluent limits based on BPJ.26
DEQ's efforts to re -write the permit to allow pollution that is prohibited under the
existing permit is exactly the sort of backsliding that is illegal under the Clean Water Act. The
proposed permit thus violates the anti -backsliding provisions of the Clean Water Act by
eliminating the longstanding protections against unlawful seepage into Jacob Swamp.
21 Weatherspoon Draft NPDES Permit at 6.
22 Id
2'33 U.S.C. § 1251(a)(1).
24Id. § 1342(o).
25 40 C.F.R. § 122.44(1)(1).
26 Id.; In the Matter of Star-Kist Caribe, Inc., Petitioner, 2 E.A.D. 758 at *3 (E.P.A. Mar. 8, 1989); EPA, NPDES
Permit Writers' Manual Chapter 7, § 7.2.2, .p. 7-4 (Sept. 2010), supra n.25.
7

Furthermore, this attempt violates the basic requirements of the Clean Water Act and
North Carolina law, because it purports to issue a permit for a malfunctioning wastewater
treatment facility that leaks in undesigned ways and pollutes the surrounding environment with
untreated wastewater, rather than treating wastewater before discharge into the environment.
C. DEQ's Proposed Permit Allows Duke Energy to Use Streams As Its Private
Wastewater Disposal Channels, in Violation of the Clean Water Act.
Under North Carolina law, polluters cannot highjack naturally occurring streams for use
as "effluent channels," meaning private wastewater disposal channels that are not required to
meet water quality standards.27 North Carolina regulations are clear that effluent channels "shall
... not contain natural waters," including naturally occurring streams and groundwater. 28 In a
similar proposed permit for another one of Duke Energy's coal ash sites, DEQ itself recognizes
that jurisdictional waters cannot be used as effluent channels, and states that effluent channel
requirements "are not met" if waters are determined to be jurisdictional waters. 29
Yet that is exactly what DEQ proposes to allow Duke Energy to do: convert North
Carolina's streams into polluted waste chutes filled with coal ash contamination. DEQ has no
legal authority to convert a stream—a water of the United States and of North Carolina—into
a Duke Energy wastewater ditch stripped of clean water protections.
Instead of abiding by the law, DEQ's proposed permit attempts to classify three streams
at Weatherspoon as effluent channels. Instead of requiring Duke Energy to meet water quality
standards in these streams, DEQ proposes to allow Duke Energy to discharge elevated amounts
of pollution into these streams by, for example, setting a daily arsenic limit that is 34 times the
human health safety standard.
DEQ also provides Duke Energy the option to "install a pipe to discharge the seep to the
Lumber River. ,30 In other words, instead of holding Duke Energy accountable to the law that
applies to everyone else in North Carolina, DEQ has taken the astonishing step of encouraging
Duke Energy to install pipes to route these polluted streams more directly and more rapidly into
other waters of the U.S.—at which point DEQ will no longer consider Duke Energy to be in
violation of water quality standards, no matter how high the pollution levels are in these streams.
This approach is contrary to the law and to common sense.
Furthermore, as noted above, effluent channels cannot include naturally occurring water,
with a single exception: waters that "occur in direct response to rainfall events by overland
runoff. ,31 In other words, an effluent channel can only be designated if that channel would be
dry except during rainfall events and as a result of transporting waste water. These seeps that
27 15A N.C. Admin. Code 02B .0228.
28 id..
29 Belews Creek Draft NPDES Permit at 21 ("The effluent channel requirements for seeps S-2, S-6, and S-15 are not
met due to the previous Jurisdictional Determinations or presence of side streams.")
30 Weatherspoon Draft NPDES Permit at 11.
31 15A N.C. Admin. Code 2B.0228(2).

DEQ proposes to treat as effluent channels are fed by groundwater, not just water that occurs as a
result of rainfall or transporting waste water. These streams do not meet the limited
circumstances under which waters can be called effluent channels, and therefore bypass water
quality standards.
The Clean Water Act provides no mechanism to convert jurisdictional waters into point
source discharges. The Clean Water Act "requires permits for the discharge of `pollutants'. from
any `point source' into `waters of the United States. `32 By definition, a "point source" cannot
be a "water of the United States"; a point source conveys pollutants to a water of the United
States. Coal ash and coal ash wastewater are pollutants regulated under the Clean Water Act. In
theory, an "effluent channel" could be a type of point source but only if that effluent channel is
not a "water of the United States."33 In sum, jurisdictional waters cannot be point sources.
Instead, water quality standards must be met in the jurisdictional waterbody—here, the streams
flowing into Jacob Swamp.
North Carolina law incorporates the same foundational assumption that a point source
cannot be a stream, that is, a water of the United States or of North Carolina. "Effluent channel
means a discernible confined and discrete conveyance which is used for transporting treated
wastewater to a receiving stream or other body of water."34 Restated, an effluent channel
conveys wastewater to a receiving stream or body of water; the effluent channel cannot itself be
the receiving stream.
Furthermore, the draft permit's authorization of the seeps violates the most basic
principles of the Clean Water Act. DEQ itself acknowledges in the Riverbend Fact Sheet that
"[t]he CWA NPDES permitting program does not normally envision permitting of uncontrolled
releases from treatment systems" and "[r]eleases of this nature would typically be addressed
through an enforcement action requiring their elimination rather than permitting" (emphasis
added)."
There is no doubt that DEQ's proposed permit is illegal under North Carolina and United
States law.
D. DEQ.Has Acknowledged That Zero Discharge Is Attainable For Seeps But Fails To
Require that Solution or to Impose Corresponding TBELS or Any Schedule Of
Completion.
In the event that it is proven that some of the seeps at Weatherspoon are not naturally
occurring, and are instead linked solely to the coal ash basin, DEQ must require that Duke
Energy meet zero discharge standards. In the Weatherspoon permit itself, DEQ provides the
option to Duke Energy of rerouting the seeps to eliminate the discharge to Jacob Swamp, and
recognizes in the fact sheet for the draft permit that not only is it possible for Duke Energy to
12 40 C.F.R. § 122. 1 (b)(1)(emphasis added).
"See 33 U.S.C. § 1362(14) (defining point source as "any discernible, confined and discrete conveyance, including
but not limited to ... [a] channel").
34 15A N.C. Admin. Code 2B.0202 (emphasis added).
" Attachment 3, DEQ, Fact Sheet for Riverbend NPDES NC0004961 Renewal at 3 (2015).
X

route these seeps into the cooling pond, it is Duke Energy's intention to do so. 36 But
importantly, DEQ does not require Duke Energy to reroute the seeps back into the basin.
Instead, DEQ gives Duke Energy the option of installing pipes to route the seeps directly to the
Lumber River. As explained above, this absurd proposal accomplishes nothing. It does not
project these streams seeping out of the coal ash lagoon, and instead it merely streamlines the
discharge of these polluted seeps into the Lumber River. And DEQ also gives Duke Energy the
option to simply continue polluting them forever as "effluent channels." This complete disregard
of an acknowledged solution to these uncontrolled discharges does not satisfy the requirements
of the federal Clean Water Act.
DEQ's fact sheet for another Duke Energy coal ash site, Riverbend, concedes a zero
discharge technological solution available to Duke Energy to address coal ash seeps, but DEQ
has failed to impose TBELs based on that technology. The Riverbend Fact Sheet acknowledges,
with respect to seeps, that "[r]eleases of this nature would typically be addressed through an
enforcement action requiring their elimination ... ."37 The Fact Sheet further recognizes the
availability of a zero discharge solution — collection and "rerouting the discharge" and
"discontinuing the discharge" are available solutions for meeting technology-based effluent
38
limits.
Indeed, DEQ must require compliance with the discharge limits achievable by the
implementation of the best available technology now. -EPA defines a compliance schedule as "a
schedule of remedial measures, ... including an enforceable sequence of interim requirements
(for example, actions, operations, or milestone events) ...."39 Under EPA regulations, DWQ
may use compliance schedules to achieve "compliance with CWA [Clean Water Act] and
regulations .... as soon as possible, but not later than the applicable statutory deadline under the
CWA."40 The Clean Water Act requires dischargers.of color pollution to comply with BAT -
based effluent limits by March 31, 1989.41 Thus, "a permit writer may not establish a
compliance schedule in a permit for TBELs [technology-based effluent limits] because the
statutory deadlines for meeting technology standards ... have passed. ,42
E. DEQ Also Cannot. Permit In.Advance Unidentified, Unknown Future Discharges.
As set out above, not only does the draft permit attempt to authorize the existing seeps
and leaks from the coal ash lagoon, it also attempts to put in place in advance a procedure for
seeps that have not yet occurred and whose nature is unknown, what the draft permit calls "new
identified seeps.''43 The proposed permit states that the permit must be modified to include the
new seep, but it does not specify what public notice and comment procedures, if any, will be
used for such "modification." In other words, the draft permit tries to give Duke Energy amnesty
36 Weatherspoon Draft NPDES Permit Fact Sheet at 6.
37 DEQ, Fact Sheet for Riverbend NPDES NC0004961 Renewal at 3 (2015), supra n.49.
38 Id. at Condition A(5) n.4.
39 40 C.F.R. § 122:2.
40 Id. § 122.47(a)(1)(emphasis added).
4133 U.S.C. §1311(b)(2)(A), (F).
42 EPA Permit Writers Manual, Section p. 9-8 (2010); see also EPA Permit Writers Manual, Section 9.1.3 p. 148
(1996).
43 Weatherspoon Draft NPDES Permit' at 12.
10

in advance for future malfunctions of its unlined Weatherspoon coal ash lagoon, no matter how
large or how polluted the seeps are that emerge.
This proposal to permit unspecified point source discharges cannot be reconciled with the
Clean Water Act, 33 U.S.C. § 1311(a). Under the Clean Water Act, discharges must be
"identifiable" in order to the authorized by an NPDES permit. 44 The Clean Water Act does not
authorize an agency to permit future, hypothetical discharges of unknown size, quantity, and
location. This is especially true when the unknown discharges could contain level of
contamination as high or even higher than the contamination in the numerous existing seeps at
the Weatherspoon site.
Instead of holding Duke Energy to the Clean Water Act, DEQ's proposal attempts to
shield Duke Energy from further legal violations. The proposed permit is essentially a guarantee
to Duke Energy that it no longer has to operate its ash basin properly so as to prevent additional
leaks from springing up. Future seeps are prohibited under Duke Energy's current NPDES
permit, just as the existing seeps are. These "uncontrolled releases" of leaking wastewater
should be the subject of an enforcement action requiring their elimination. Indeed, DEQ has
filed such an action in state Superior Cqurt for the engineered seeps at other Duke Energy sites,
but has failed to diligently prosecute that case. Duke Energy's operating companies have
pleaded guilty to criminal violations of the Clean Water Act for exactly such unpermitted
discharges.
DEQ's proposed permit purports to legalize these previously illegal discharges with the
stroke of a pen, rather than requiring Duke Energy to take any action to remedy the violations.
Even more shockingly, DEQ is proposing to grant Duke amnesty for unknown numbers of future
violations of the Clean Water Act as well. This is nothing more than an attempt to shield Duke
Energy from having to comply with the laws it has been violating for years.
Furthermore, the proposed permit's authorization of future seeps violates the Clean Water
Act's public participation requirements. The proposed permit would allow Duke to evade public
notice and comment and the opportunity for a public hearing and for judicial review, along with
all the other requirements of the state NPDES permitting program. 45 While the draft permit
vaguely states that a new seep would require the permit to be "modified," there is no indication
that public notice and comment would be required. Further, the draft permit purports to set out
that any new seep would be handled in the same way as the existing seeps—without knowledge
as to the nature or circumstances of the new seep.
It is beyond the authority of DEQ to authorize new point source discharges without the
full procedures of a modification of the NPDES permit with public comment and EPA oversight.
EPA's regulations authorize limited administrative changes to an active permit through minor
modifications, 46 none of which condone the administrative addition of a new point source
44 U.S. v. Tom -Kat Dev., Inc., 614F. Supp. 613, 614(D. Alaska 1985) (citing 40 C.F.R. § 122.1(b) (1)). Accord
U.S. v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979); Legal Envtl Assistance Found., Inc. v..Hodel, 586
F. Supp. 1163, 1168 (E.D. Tenn: 1984); U.S. v. Saint Bernard Parish, 589 F. Supp. 617 (E.D. La. 1984)).
4s 33 U.S.C. § 1342(b).
46 40 C.F.R. § 122.63.
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discharge, which must be permitted as an NPDES outfall. Nor can DEQ prejudge the way a new
point source discharge would be addressed, by simply adding the seep to a list to be addressed in
the same way as it proposes to address the existing seeps. This scheme is inconsistent with the
requirements of the Clean Water Act.
The existing permit and all prior ones are the result of the full agency process, public
review, public comment, and the procedures required by the Clean Water Act and North Carolina
law. These illegal flows of polluted water into Jacob Swamp, expressly forbidden by the
existing permit, cannot be made legitimate by totally changing the permit to allow contaminated
water to pop out of this purported wastewater treatment facility and spill into other surface
waters. It is inconceivable that a permitted wastewater treatment facility would be allowed to
repeatedly open up leaks and discharge polluted water from the supposed wastewater .treatment
lagoons into a public waterway. This proposed option is not law enforcement or pollution
elimination at all, but instead an option for the law enforcement agency to try to find a way to
make unlawful and polluting activities "permitted" and avoid dealing with the risks to the public.
This stratagem should not be adopted by a state agency that has the responsibility of enforcing
the law and protecting the State's natural resources and the public interest.
F. The Authorization of Seeps In the Proposed Permit Violates the Permit's
Longstanding Removed Substances Provision.
As explained above, the Removed Substances requirement in the Weatherspoon permit is
a common-sense provision to prevent pollutants removed by waste treatment facilities from
escaping out into the environment. The Removed Substances provision is an important
component of the Clean Water Act's protections, and prevents waters of the United States from
being polluted by waste treatment facilities such as the Weatherspoon coal ash settling lagoon.
Inclusion of the'Removed Substance provision "is based on the simple proposition that there is
no way one can protect the water quality of the waters of the U.S. if the [polluter] is allowed to
redeposit the pollutants collected in his settling ponds.i47 Removed Substances provisions
ensure that "measures shall be taken to assure that pollutants materials removed from the process
water and waste streams will be retained in storage areas. "48
In the context of the Weatherspoon permit, the removed substances provision is also the
implementation of a required permit component under the implementing regulations of the Clean
Water Act. The implementing regulations for the Clean Water Act require that "[t]echnology-
based effluent limitations shall be established under this subpart for solids, sludges, filter
backwash, and other pollutants removed in the course of treatment or control of wastewaters in
the same manner as for other pollutants."49 Under the existing permit issued to Duke Energy for
the Weatherspoon plant, DEQ did not set individual TBELs for seeps from the ash basin but
rather took the only responsible step of treating zero liquid discharge as the BAT for
contaminated seeps from a coal ash impoundment. In other words, consistent with the
requirement to set TBELs for pollutants removed by the wastewater treatment ash ponds, the
47 In the Matter of 539 Alaska Placer Miners, Nos. 1085-06-14-402C & 1087-08-03-402C, 1990 WL 324284 at *8
(EPA 1990)
4' 40 C.F.R. § 440.148(c) (emphasis added).
49 Id. § 125.3(g).
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existing permit prohibits any discharge of removed substances to waters of the United States or
of North Carolina.
DEQ itself has cited Duke Energy for violating the Removed Substances provision by
allowing pollutants to enter waters of the State and navigable waters due to uncontrolled releases
from Duke Energy's coal ash lagoons at its Dan River facility. In a February 28, 2014 Notice of
Violation, DEQ cites the discharge "of coal combustion residuals from the ash pond to the Dan
River, class C waters of the State" as violating the Removed Substances provision: "Failure to
utilize or dispose solids removed from the treatment process in such a manner as to prevent
pollutants from entering waters of the State (Part II, Section C. 6. of NPDES permit)." Part
II.C.6 of the Dan River NPDES Permit contains the Removed Substances permit provision.
There is no indication that DEQ is eliminating the Removed Substances provision from
the proposed permit—nor could it, without violating the Clean Water Act's prohibition against
backsliding. The Removed Substances provision is part of the standard conditions for all
NPDES permits in North Carolina that applies to all wastewater treatment facilities.
Consequently, the proposed authorization to discharge removed substances through seeps is
directly contrary to the continuing prohibition against those very same discharges in the
Removed Substances provision.
DEQ cannot allow pollutants removed in the course of treatment to enter waters of the
State and United States via uncontrolled releases that have sprung and that may spring out of the
lagoon and start discharging to public waters at any time, when such releases are already
prohibited by the current permit and the proposed permit itself.
G. The Draft Permit Threatens the Safety of the Weatherspoon Dam.
By allowing seeps to continue, DEQ is threatening the safety of the Weatherspoon coal
ash dam. The Weatherspoon coal ash dam has longstanding safety problems that have been
noted over the years. In a January 2012 EPA Report, the EPA rated the Weatherspoon
impoundment as only, "fair." And in a May 2014 teport prepared by S&ME Inc., further
deficiencies were identified. In June of 2014, DEQ issued a notice of deficiency for the
Weatherspoon dam structures, noting "numerous gushers" and other problems with the decant
structure. DEQ acknowledged that "[i]n the event of dam failure, significant environmental
damage to a tributary of the Lumber River could occur due to release of coal ash stored behind
the dam." And as recently as October of 2016, Duke Energy's own consultant warned that the
Weatherspoon dam is "[n]ot stable during seismic event,"50 and "[d]oes not achieve [the]
minimum factor of safety requirement" for seismic safety. 51
DEQ itself has previously acknowledged the danger of seeps for earthen dams at Duke
Energy's coal ash ponds. In 2010, DEQ issued a dam safety Notice of Inspection for an earthen
dam at Duke Energy's Mayo coal ash site, warning that:
so Amec Foster Wheeler, Initial Structural Stability Assessment Revision 1 at 2 (Oct 27, 2016), available at
https://www.duke-energy. com/our-company/environment/compliance-and-reporting/ccr-rule-compliance-data.
5 Amec Foster Wheeler, Initial Factor of Safety Assessment at 2 (Oct. 10, 2016), available at https://www.duke-
energy. com/our-company/environment/compliance-and-reporting/ccr-rule-compliance-data.
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"Two of.the more common types of earth dam failures are caused or influenced
by excessive seepage. Excessive seepage can produce progressive internal
erosion of soil from the downstream slope of the dam or foundation toward the
upstream side to form an open conduit or `pipe.' Seepage pressures decrease the
strength characteristics of the embankment soil. The resulting reduction in
embankment stability can produce a slide failure of the downstream slope."
(emphasis added).
DEQ is ignoring its own warnings by trying to allow this unacceptable seepage to
continue and Weatherspoon, and by purporting to allow future, unknown seeps, without any
knowledge of their future effects on the Weatherspoon coal ash dam.
DEQ's proposal to allow unlimited seepage from the dam at Weatherspoon also violates
another provision of the proposed and existing Weatherspoon permit, which requires the facility
to meet dam safety requirements under North Carolina law. 52
H. Conclusion
For all of these reasons, DEQ must revise the draft permit to include adequate limits for
all pollutants as Duke Energy empties the water out of the coal ash basin at Weatherspoon. DEQ
must also abandon its proposal to treat naturally occurring waters as pollution discharge channels
for Duke Energy, and must require Duke Energy to meet surface water quality standards in the
streams emerging from the Weatherspoon coal ash lagoon.
Sincerely,
Myra Blake
Staff Attorney
cc: Gina McCarthy, EPA Administrator
Heather McTeer Toney, Regional Administrator, Region 4
52 Weatherspoon Draft NPDES Permit at 8.
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