NC0001422_Sutton NPDES comments_20170622

Strickland, Bev
From:
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Attachments:
Mr. Zimmerman and Mr. Lane,
Nick Torrey < [e-mail] >
Thursday, June 22, 2017 5:47 PM
Zimmerman, Jay; SVC_DENR.publiccomments; Lane, Bill F
Pat Dunlop
Sutton NPDES comments
2017-06-22 Sutton NPDES comments.pdf
Attached please find comments from the Southern Environmental Law Center on behalf of Cape Fear River Watch on the
draft NPDES permit for Duke Energy's Sutton facility.
Thanks for your consideration,
Nick
Nicholas S. Torrey
Staff Attorney
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516
[phone]
www.SouthernEnvironment.org

June 22, 2017
VIA EMAIL
Mr. S. Jay Zimmerman, Director
N.C. DEQ Division of Water Resources
1617 Mail Service Center
Raleigh, N.C., 27699-1617
[e-mail]
[e-mail]
Re: 2017 Draft NPDES Wastewater Permit — Sutton Plant, #NC0001422
Dear Mr. Zimmerman:
On behalf of Cape Fear River Watch, we submit 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 would significantly weaken the permit by allowing Duke Energy
Progress LLC ("Duke Energy") to discharge increased amounts of arsenic, mercury, and other
pollution into Sutton Lake and the Cape Fear River.
Introduction
In numerous public hearings last year, thousands of citizens made it clear that the public
wants DEQ to protect North Carolina families from Duke Energy's coal ash pollution. Yet in the
current draft permit, DEQ bends over backwards to weaken limits on Duke Energy's pollution,
with no valid basis and when even Duke Energy itself has not asked for these changes.
DEQ's weakened limits on toxic metals and other pollutants are also inappropriate
because Duke Energy will be adding additional streams of coal ash contaminated wastewater to
the discharges from its coal ash lagoons. The permit and its Fact Sheet contemplate Duke
Energy will route polluted groundwater and coal ash landfill leachate wastewater through these
outfalls, making it all the more important to maintain or strengthen the existing limits, not
drastically weaken them as DEQ is proposing to do.
Important Public Water Resources At Risk From DEQ's Actions
Sutton Lake is an extremely popular fishing location. It is frequented both by sport
fishermen and by subsistence fishermen, who catch fish that are eaten by themselves and their
families. See Mike Marsh, "Action Ramps Up at Sutton Lake," Raleigh News & Observer (Apr.
4, 2013) (describing the lake's parking lot as "full to overflowing" and quoting anglers drawn by
"fish that were good to eat."). The fishery at Sutton Lake is managed by the North Carolina
Wildlife Resources Commission with financial support from federal funds and grants from the

U.S. Fish and Wildlife Service's Sport Fish Restoration Program. These entities encourage the
public to fish at Sutton Lake and have renovated the boat ramps to provide greater public access.
The Cape Fear River is one of North Carolina's most important water resources. It flows
through Wilmington and is heavily used for fishing, recreation, and drinking water supplies.
People throughout the region, North Carolinians from throughout the state, and visitors to North
Carolina make use of its waters and consume fish from the river.
DEQ's treatment of Sutton Lake and the Cape Fear River also raises serious
environmental justice concerns. Minority fishermen fish frequently in Sutton Lake and the Cape
Fear River. The minority population in a half -mile, mile, 2 -mile and 3 -mile radius of Sutton
Steam Station is significantly higher than the state or county wide average. Executive Order
12898 specifically provides, with regard to subsistence fishing, that where an agency action may
affect fish, vegetation, or wildlife, that agency action may also affect subsistence patterns of
consumption and indicate the potential for disproportionately high and adverse human health or
environmental effects on low-income and minority populations. Executive Order 12898 § 4 —
401.
1. DEQ Has Impermissibly Weakened the Pollution Limits in the Draft Permit
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.
33 U.S.C. §§ 1251(a)(1).
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. 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 ....").
In total disregard of this requirement, the draft permit impermissibly weakens the
established limits in the existing permit for the following coal ash pollutants:
• Arsenic — Arsenic is a known carcinogen that causes multiple forms of cancer in humans.
It is also a toxic pollutant, 40 C.F.R. § 401.15, and a priority pollutant, 40 C.F.R. Part 423
App'x A. Arsenic is also associated with non -cancer health effects of the skin and the
nervous system.
DEQ's draft inexplicably weakens the limits for Outfalls 001 (both Decanting/Normal
Operation and Dewatering) and 004 from a daily maximum limit of 50 ug/L to 340 ug/L,
a nearly sevenfold increase in toxic arsenic pollution.
2

The Fact Sheet offers no valid justification for this change. It states only that the increase
is supposedly "based on the updates to the North Carolina standards," and refers to the
arsenic limits as "water quality based effluent limitations." Fact Sheet at 5.
However, the existing permit contains technology-based limits on arsenic and other
pollutants that Duke Energy has accepted and is bound by. Indeed, Duke Energy has not
requested that the arsenic limits be weakened. In its application materials, Duke Energy
requests certain changes to the permit, but it does not ask for DEQ to weaken the arsenic
limits. Of course, a request from the applicant would not on its own justify such a
change, but the fact that Duke Energy has not even made the request simply highlights
the absurdity of DEQ weakening the permit for no reason. DEQ has no business
unilaterally weakening pollution limits that it has already imposed based on available
treatment technology — limits that Duke Energy accepts and is currently complying with,
and that protect the important fishing and water resources of Sutton Lake and the Cape
Fear River.
In addition, the arsenic limit in the draft permit makes no mathematical sense. The
permit purports to allow a daily maximum arsenic concentration of 340 ug/L and a
monthly average of 10 ug/L. The discharge is sampled weekly, so the monthly average
would be based on four samples. Thus, a single sample at the allowed daily maximum of
340 ug/L would exceed the entire monthly average limit by more than eight times (85
ug/L), even if the other three samples contained no arsenic. In other words, DEQ has not
only weakened the daily limit drastically, but also is proposing to negate the monthly
average limit for arsenic and render it meaningless.
To comply with the anti -backsliding requirements of the Clean Water Act, DEQ must
abandon this approach and maintain the current arsenic limits for these outfalls and also
apply the arsenic limits from the existing permit to Outfall 008.
• Mercury — Mercury is a well-known neurotoxicant and is listed as a toxic pollutant, 40
C.F.R. § 401.15. It has the dangerous capacity to bioaccumulate, or build up in animal
tissue. When mercury leaches from coal ash into the soil or water, it is converted by
bacteria into methylmercury, an organic form that can be absorbed by small organisms
and the larger organisms that eat them. As it moves up the food chain, the concentration
of methylmercury increases. Mercury is particulary toxic to the developing nervous
system. Exposure during gestation, infancy, or childhood can cause developmental delays
and abnormalities, reduced IQ and mental retardation, and behavioral problems.
DEQ has entirely removed the mercury limits for decanting and so-called normal
operation of Outfalls 001, 002, and 004. Again, there is absolutely no valid basis for this
weakening of the permit, which violates the anti -backsliding requirement. The permit's
Fact Sheet states only that these limits were removed based on the results of an
undisclosed "Mercury Evaluation" that is not included with the permitting materials.
Fact Sheet at 5. Once again, Duke Energy has not requested that the mercury limits be
removed. The current permit contains valid limits based on existing, in-place treatment
technology, and Duke Energy has accepted and is complying with these limits. There is

no justification for removing them and impermissibly weakening the permit. If Duke
Energy is not expected to discharge mercury going forward, then it will have no trouble
complying with the limits. But there is no reason to remove them, especially given the
legacy of coal ash contamination of Sutton Lake and the Cape Fear River.
• Lead — Lead is a very potent neurotoxicant that is highly damaging to the nervous
system. Health effects associated with exposure to lead include, but are not limited to,
neurotoxicity, developmental delays, hypertension, impaired hearing acuity, impaired
hemoglobin synthesis, and male reproductive impairment. Importantly, many of lead's
health effects may occur without overt signs of toxicity. Lead is also classified by the
EPA as a "probable human carcinogen."
DEQ has removed the lead limit for decanting and normal operation of Outfall 001 into
the Cape Fear River. In addition, DEQ has more than doubled the daily maximum limit
for dewatering from 33.8 ug/L to 75.4 ug/L. Once again, Duke Energy has not requested
this change and once again, there is no justification for it. The Fact Sheet states that the
change is based on a "Reasonable Potential Analysis" that is not part of the permit
materials. However, the limits in place now are being met with existing, in-place
treatment technology, and there is no justification for weakening them.
In addition, DEQ's permit creates mathematical impossibilities. It purports to authorize a
daily maximum lead limit of 75.4 ug/L and a monthly average limit of 2.94 ug/L. Based
on the weekly samples contemplated in the permit, a single daily maximum sample of
75.4 ug/L would exceed the monthly average limit by over six times (18.9 ug/L), even if
all the other samples contained zero lead.
• Cadmium — Chronic exposure to cadmium, a toxic pollutant, 40 C.F.R. § 401.15, can
result in kidney disease and obstructive lung diseases such as emphysema. Cadmium
may also be related to increased blood pressure (hypertension) and is a possible lung
carcinogen. Cadmium affects calcium metabolism and can result in bone mineral loss
and associate bone loss, osteoporosis, and bone fractures.
DEQ has removed the cadmium limit from Outfall 00 I's decanting/normal operations
limits as well. Duke Energy has not requested this change and there is no justification for
removing this limit from the existing permit.
• Iron — Iron can render water unusable by imparting a rusty color and a metallic taste and
causing sedimentation and staining. DEQ has removed the iron limit for Outfalls 001,
002, and 004. The Fact Sheet (p. 5) states that this change is based on "updates to the
North Carolina standards," but again, nothing in those water quality standards justifies
weakening the current limits based on existing technology that are in place in the current
permit.
M

2. DEQ Has Failed to Disclose an Updated Compliance Boundary
The groundwater rules direct that "[t]he [compliance] boundary shall be established by
the Director, or his designee at the time of permit issuance." 15A NCAC 02L .0107(c)
(emphasis added). Yet the draft permit as distributed to the public for comment includes no map
designating a compliance boundary for the Sutton facility. This is a critical omission.
The draft permit must include an updated compliance boundary to reflect the newly -
recognized status of Sutton Lake as a water of the State. Previous compliance boundary maps
have incorrectly drawn the compliance boundary extending into Sutton Lake and the old
streambed of Catfish Creek, a navigable water of the State. The compliance boundary must be
redrawn so that it does not extend into these waters.
We raised this issue in our comments on the 2015 NPDES permit, yet DEQ still has not
made an updated compliance boundary map publically available, despite representing to the N.C.
Superior Court that it would do so in connection with new draft NPDES permits for Duke
Energy's coal ash sites. In a summary judgment hearing on December 19, 2016, counsel for
DEQ argued that the court should not make any determination about the location of compliance
boundaries at Duke Energy's coal ash sites because the boundaries would be determined — and
disclosed to the public — through the NPDES permitting process and would then be subject to
challenge through the administrative appeals process for those NPDES permits:
The compliance boundary, quote, "is established by the director or his designee at
the time of permit issuance." And that's important here because those are
currently being established in the [NPDES] process."
DEQ ... is charged with making decisions regarding compliance boundaries at
the time of permit issuance. And it is in the [NPDES] permits [that] the
compliance boundaries are set by the director and when these decisions have
been made intervenors and other aggrieved persons are free to challenge those
provisions pursuant to the [Administrative Procedure] act...."
See Excerpts from Summary Judgment Hearing Transcript (Dec. 19, 2016), attached as
Exhibit 1 (emphases added).
Instead — directly contrary to its representations to the Superior Court — DEQ has released
a draft NPDES permit with no compliance boundary map,1 giving the public no idea of where
DEQ locates the compliance boundary in relation to Sutton Lake, and thus denying the general
public any opportunity to evaluate the boundary or comment on it as part of the required public
participation process. In other words, DEQ is denying the public the opportunity to
meaningfully comment on this vital aspect of Duke Energy's coal ash wastewater treatment
system, and appears to have misrepresented its actions to the N.C. Superior Court.
' As DEQ's Public Notice explains, DEQ posts its draft permits and related materials on a publicly -available
website, https:Hgoo.gl/3WtzMF. For the Sutton permit, DEQ has posted the draft permit, a fact sheet, a public
notice, an outfalls map, and Duke Energy's renewal application. None of these materials contains a compliance
boundary map.
5

3. DEQ Is Proposing to Further Weaken the Permit by Allowing Duke Energy to Use
Dilution to Meet the Effluent Limits
In addition to weakening numerous limits for toxic coal ash pollutants, DEQ's draft
permit also appears to allow Duke Energy to impermissibly dilute its ash pond discharges to the
Cape Fear River. Condition A(27)(2) of the current Sutton permit (A(28)(2) in the draft permit)
states, "All effluent samples for all external outfalls shall be taken at the most accessible location
after the final treatment but prior to discharge to waters of the U.S. (40 CFR 122.41(j))."
Similarly, other Duke Energy permits explain that ash basin discharge samples "shall be taken
prior to mixing with other waste streams." E.g., 2009 Mayo NPDES Permit #NC0038377 at
A(3)-(4) (emphasis added).
The Fact Sheet states that "Outfall 001 is discharging through the mixing box that was
set-up to concurrently discharge ash pond wastewater and water from Sutton Lake. The
compliance point for Outfall 001 is located within the mixing box."
By proposing to allow Duke Energy to measure compliance for Outfall 001 within this
mixing box, DEQ appears to be violating these common-sense sampling requirements that
prohibit dilution and sampling after discharge to waters of the United States. Sutton Lake is a
water of North Carolina and the United States, as DEQ recognizes in the Sutton permit, and
sampling the Outfall 001 discharge after mixing with Sutton Lake water is a violation of
Condition A(27) of the current permit. Duke Energy must comply with the effluent limits for
Outfall 001 prior to diluting its ash pond discharges with the jurisdictional water of Sutton Lake.
Thank you for your consideration of these comments.
cc: Bill Lane, DEQ General Counsel
Sincerely,
/s/ Nicholas S. Torrey
Nicholas S. Torrey
Staff Attorney
Frank S. Holleman III
Senior Attorney
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STATE OF NORTH CAROLINA
COUNTY OF WAKE
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY, DIVISION
OF WATER RESOURCES,
Plaintiff,
V.
1
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
13 CVS 11032
ROANOKE RIVER BASIN ASSOCIATION,
SIERRA CLUB, WATERKEEPER ALLIANCE,
CAPE FEAR RIVER WATCH, INC., NEUSE
RIVERKEEPER FOUNDATION, AND WINYAH
RIVERS FOUNDATION,
Plaintiff -Intervenors,
V.
DUKE ENERGY PROGRESS, LLC,
Defendant. TRANSCRIPT
.......................••...... VOLUME 1 of 1
COUNTY OF MECKLENBURG
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY, DIVISION
OF WATER RESOURCES,
Plaintiff,
CATAWBA RIVERKEEPER FOUNDATION, INC.,
APPALACHIAN VOICES, YADKIN RIVERKEEPER,
MOUNTAINTRUE, DAN RIVER BASIN ASSOCIATION,
ROANOKE RIVER BASIN ASSOCIATION, SOUTHERN
ALLIANCE FOR CLEAN ENERGY, AND WATERKEEPER
ALLIANCE,
Plaintiff -Intervenors,
V.
ENERGY CAROLINAS, LLC,
Defendant.
Jacqueline M. Sullivan, RPR, CRR
Official Court Reporter
13 CVS 14661

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TITLE PAGE, con't.
Transcript of proceedings in the
General Court of Justice, Superior Court Division, Wake County,
North Carolina, at the December 19, 2016 Session, before the
Honorable Paul C. Ridgeway, Judge Presiding.
APPEARANCES:
FRANCISCO J. BENZONI, ESQ.
HILL DAVIS, ESQ.
114 W. Edenton Street
Post Office Box 629
Raleigh, NC 27602-0629
On behalf of the Plaintiff
D.J. GERKEN, ESQ.
PATRICK HUNTER, ESQ.
FRANK HOLLOMAN, ESQ.
Southern Environmental Law Center
22 South Pack Square, Suite 700
Asheville, NC 28801-3494
On behalf of the Plaintiff -Intervenors.
NASH E. LONG, ESQ.
BRENT ROSSER, ESQ.
Hunton & Williams, LLP
Bank of America Plaza
Suite 3500
101 South Tryon Street
Charlotte, NC 28280
Jacqueline M. Sullivan, RPR, CRR
Official Court Reporter
P.O. Box 351
Raleigh, North Carolina 27602
(9 19) 792-5203
Jacqueline M. Sullivan, RPR, CRR
Official Court Reporter

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150
THE COURT: I have it.
MR. BENZONI: Tab three. This is for systems
individually permitted prior to December 1983, quote:
The compliance boundary is established at a
horizontal distance of five hundred feet from the waste
boundary or at the property boundary, whichever is closer to
the source.
And so in order to understand that specification,
because it's five hundred feet from the waste boundary, we've
got to look at the definition of "waste boundary," and the
waste boundary is defined as the perimeter of a permitted
waste disposal area, unquote, and that's the 150226.
One other important provision is 107(c), which
states:
The compliance boundary, quote, "is established by
the director or his designee at the time of permit issuance."
And that's important here because those are currently being
established in the MPSD process.
Those are going to form the backdrop of our
discussion one and two.
In the first issue intervenors maintain that the
compliance boundaries at the facilities must stop at the stop
river at Cliffside like Wiley and at end and Lake Gorman at
Marshall.
First they argued that Duke Energy's own
Jacqueline M. Sullivan, RPR, CRR
Official Court Reporter

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152
the statute says that and there's no reason for the Court to
offer interpretation of the plain -language statues. On the
contrary, the Supreme Court held in Carolina Light Power
Company verse City of Asheville: Wherever statutory language
is clear and unambiguous the Court does not engage in but
must apply the statute to.
Here there's no reason for judicial construction.
The statute is clear and plain and unambiguous on its face.
The issue here to DEQ is intervenors' attempt to apply the
law to a factual uncritical set of circumstances completion.
As noted, as DEQ it is charged with making decisions
regarding compliance boundaries at the time of permit
issuance. And it is in the MPDS permits of the compliance
boundaries are set by the director and when these decisions
have been made intervenors and other aggrieved persons are
free to challenge those provisions pursuant to the procured
administration act as some of the intervenors have in this
case with regards to the Marshall facility.
So DEQ respectfully requests that the Court refrain
from making any decisions. DEQ is charged with making those
decisions.
THE COURT: So on the one hand the statutes are
clear and need interpretation on the other hand that you saw
it should be this and that saying it should be something
else?
Jacqueline M. Sullivan, RPR, CRR
Official Court Reporter