NC0004961_Petition for Contested Case Hearing_20160311

HuNToN-,.i-\.-.),,
WHIIAMS
March 11, 2016
The Honorable Julian Mann, III
Chief Administrative Law Judge
Office of Administrative Hearings
1711 New Hope Church Road
Raleigh, North Carolina 27609
HUNTON & WILLIAMS LLP
POST OFFICE BOX 109
RALEIGH, NORTH CAROLINA 27602
TEL [phone]
FAX [phone]
CHARLES D CASE
DIRECT DIAL 919-899-3045
EMAIL ccase a hunton com
FILE NO 34085 008005
DOC NO 59671260 V2
Via electronic mail to oah.clerks(iD)oah.nc.,aov
and via first class mail
Re Duke EnerDProtective Filing
Dear Judge Mann:
OFFICE OF GENERAL COUNSEL
MAR 1 4 2016
ENVIRONMENT &
Enclosed with this letter Is a petition for contested case hearing ("Petition") filed
electronically today with the Office of Administrative Hearings on behalf of Duke Energy
Carolinas, LLC ("Duke Energy") contesting the NPDES wastewater discharge permit number
NC0004961 ("Permit") issued to Duke Energy by the North Carolina Department of
Environmental Quality and its Division of Water Resources ("Department"), dated February
12, 2016, for the Riverbend Steam Station in Gaston County.
Pursuant to 26 NCAC 03.0101(d) of OAH's rules, we are mailing for filing at OAH
the original and one copy of the signed Petition (with attachments) and a check for $20 for the
filing fee.
This Petition is being filed protectively, because Duke Energy intends to engage in
further discussions with the Department regarding the terms of the Permit DWR Issued and is
hopeful that all issues regarding those terms can be resolved, in which case Duke Energy
would anticipate dismissing the Petition. Duke Energy is hopeful that no evidentiary hearing
will be needed. As a consequence, we would request that prehearing statements not be
required of any party unless It becomes apparent that the matter will need to go to hearing
Of course, if subsequent developments do not support this protective filing, Duke
Energy will notify your office and proceed accordingly. If you have any questions, please
feel free to call me at 899-3045
ATLANTA AUSTIN BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS HOUSTON LONDON LOS ANGELES
McLEAN MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO WASHINGTON
ivxw hunton com

The Honorable Julian Mann, III
March 11, 2016
Page 2
Sincerely,
6e<4a ��
Charles D. Case
CDC/bhb
Enclosures: Petition, Attachments, and Permit
cc (w/enclosures):
Sam M. Hayes, Esq., DEQ General Counsel (via regular mail and email.)
Honorable Fred G. Morrison, Jr.
34085 008005 EMF US 59671260v2

PLEASE PRINT CLEARLY OR TYPE
STATE OF NORTH CAROLINA
< COUNTY OF (1) WADE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
(2) Duke Energy Carolinas, LLC )
(your name) PETITIONER, )
PETITION
v ) FOR A
(3) North Carolina Department of Environmental ) CONTESTED CASE HEARING
Quality, Division of Water Resources )
RESPONDENT )
(The State agency or board about which you are complaining) )
I hereby ask for a contested case hearing as provided for by North Carolina General Statute § 150B-23 because the Respondent has:
(Briefly state facts showing how you believe you have been harmed by the State agency or board )
See attachments, which are incorporated by reference. RECEIVED
OFFICE OF
-__�7777[
(4) Amount in controversy $ (if applicable) MAR 1 4 zoos
(If more space is needed, attach additional pages.)
ENVIRONMENT &
(5) Because of these facts, the State agency or board has (check at least one from each column)
x deprived me of property, --2L--exceeded its authority or jurisdiction,
ordered me to pay a fine or civil penalty, or x acted erroneously;
x otherwise substantially preludiced my rights; AND x failed to use proper procedure;
x acted arbitrarily or capriciously, or
x failed to act as required by law or rule.
(6) Date March 11, 2016 (7) Your phone number. (9 19) 899-3045
(8) Print your full address: Hunton & Williams LLP. P.O.. Box 109 Raleigh, NC 27602
(street address/p o box)
(9) Print your name Charles D. Case
(10) Your signatute
(city) (state) (Zip)
You must mail or deliver a COPY of this Petition to the State agency or board named on line (3) of this form You should contact the agency or
boat d to determine the name of the person to be served
CERTIFICATE OF SERVICE
I certify that this Petition has been served on the State agency or board named below by depositing a copy of it with the United States Postal Service
with sufficient postage affixed OR by delivering it to the named agency or board -
(11) Sam M. Hayes (12) North Carolina Department of Environmental Quality
(name of person served) (State agency or board listed on line 3)
(13) 1601 Mail Service Center, Raleigh, NC 27699-1601
(street address/p o box) (city) (state) (zip code)
(14) This the 11th days of March 20 16
(15) --/.17-
(your signature)
When you have completed this form, you MUST mail or deliver the ORIGINAL AND ONE COPY to the Office of Administrative Hearings, 6714
Mail Service Center, Raleigh, NC 27699-6714.
11-06 (05/10)

ims Dox for VAH use only.
Amount Paid $ 7 Indigent (must complete form HOI )
Cash — receipt number
Money Order Certified Check Attorney Trust Account
Check
H-06 (05/10)
Mandated federal cause of action
Received

Y
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE
DUKE ENERGY CAROLINAS, LLC
V.
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENTAL QUALITY,
and its DIVISION OF WATER
RESOURCES
ATTACHMENT TO PETITION FOR CONTESTED CASE HEARING
Duke Energy Carolinas, LLC ("Duke Energy") submits this Petition for Contested Case
Hearing to contest the terms of the NPDES wastewater discharge permit number NC0004961
(the "Permit") issued to Duke Energy on February 12, 2016 by the North Carolina Department of
Environmental Quality and its Division of Water Resources (the "Department") for Duke
Energy's Riverbend Steam Station. Duke Energy contends that the Department exceeded its
authority, acted erroneously, failed to use proper procedure, acted arbitrarily and capriciously,
and failed to act as required by law or rule, as follows.
Duke Energy submitted a timely application to renew the permit on May 15, 2014.
Among other things, the application included information about potential "seeps" at the
Riverbend site. Duke Energy asked that the potential seeps be incorporated into the final permit
and, to that end, identified twelve potential seeps in the application. (As used in this matter, the
term "seep" refers to a wet area in the vicinity of a coal ash impoundment, it does not necessarily
indicate a discharge from a coal ash surface impoundment)

The Department published a draft permit for public comment on March 6, 2015, and
Duke Energy provided comments on that draft permit by a May 4, 2015 letter, a copy of which is
attached and pertinent portions of which are incorporated by reference into this Attachment and
the Petition. Several other versions of the draft Permit were generated between March 6, 2015
and November 12, 2015. On August 21-, 2015, the United States Army Corps of Engineers
issued a jurisdictional determination in which it identified ten of Riverbend's twelve potential
seeps as jurisdictional waters of the United States. The final Permit as issued on February 12,
2016, differs in substantial respects from the draft permit. (A copy of the final Permit is attached
and incorporated by reference into this Attachment and the Petition.) Duke Energy did not have
a formal opportunity to comment upon the changes and errors contained in the final Permit.
The Permit incorporates the twelve potential seeps identified by Duke Energy in its
application. The Permit classifies those potential seeps into two categories: jurisdictional seeps
(i.e., seeps whose surface discharges was classified by the Corps of Engineers as jurisdictional
waters) and non jurisdictional. The Permit requires assessment and corrective action depending
on this classification. All potential seeps are assigned numeric limits on specified constituents in
their discharge. (These terms in the Permit dealing with the seeps are referred to here as "Permit
Seep Terms").
Duke Energy contends that the Department erred in among other ways by including the
Permit Seep Terms in the Permit, in that those terms, among things:
1. incorrectly assign Duke Energy a permit violation if the surface waters receiving flow
from a seep do not meet surface water quality standards, regardless of whether Duke
Energy's discharge caused or contributed to the violation;
4

2. incorrectly treat all jurisdictional seep discharges as class WS -1V waters for the purpose
of determining water quality standards; and
3, incorrectly create a permit violation when certain constituents are measured in excess of
numeric standards in the discharge from a jurisdictional seep, before the Department
determines that the measured exceedances are related to the presence of the
impoundments.
Duke Energy further contends that the Department erred by failing to address the issues
described in the attached comment letter and by failing to provide a formal opportunity for Duke
Energy to comment on substantial changes made after the March 6 draft.
Duke Energy has requested that the Petition and attachments be treated as a protective
appeal, to allow opportunity to discuss further with the Department the Permit Seep Terms and
other provisions in the Permit. However, should it be necessary for Duke Energy to submit a
Prehearing Statement as a prerequisite to a hearing, Duke Energy reserves the opportunity to
identify additional issues and errors and the to reiterate its request that the Permit be vacated and
remanded to the Department with instructions to correct the Permit Seep Terms and any other
deficiencies in the Permit.
[rest of the page intentionally left blank]

Respectfully submitted on March 11, 2016.
Of Counsel:
Matthew F. Hanchey
N.C. State Bar. No. 33965
Associate General Counsel
Duke Energy Corporation
410 South Wilmington Street
Office of the General Counsel, NC20
Raleigh NC 27601
Phone: [phone]
Fax: [phone]
Email: [e-mail]
2
HUNTON & WILLUMS LLP
Charles D. Case
N.C. State Bar No. 7652
421 Fayetteville St, Suite 1400
Raleigh, NC 27601
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Petitioner Duke Energy
Carolinas, LLC