NC0004979_Comments_20180514

•
•
SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 601 WEST ROSEMARY STREET,SUITE 220 facsimile 919-929-9421
CHAPEL HILL,NC 27516-2356
May 14, 2018
Via U.S. Mail and Email (publiccomments(a,ncdenr.aov)
North Carolina Department of Environmental Quality
Wastewater Permitting
Attn: Allen Permit
1617 Mail Service Center
Raleigh,N.C., 27699-1617 RECEIVEDIDENRIDWR
Re: Draft NPDES Permit NC0004979 MAY 18 2018
Allen Steam Station • Water Resources
• Permitting Section
Dear Sir or Madam:
On behalf of itself, the Catawba Riverkeeper Foundation, the Sierra Club,.and
Waterkeeper Alliance, the Southern Environmental Law Center submits these comments on the
proposed National Pollutant Discharge Elimination System permit for Duke Energy's Allen plant
on the Catawba River and Lake Wylie. This draft permit does not protect North Carolina or its
water resources from the serious coal ash pollution of Duke Energy and fails to uphold the
Department's mission of protecting North Carolina's communities and clean water.
At the Allen Plant and at other Duke Energy coal ash sites across North Carolina,North
Carolina's rivers and communities are facing a huge final flush of coal ash polluted water from
virtually all of Duke Energy's coal ash lagoons, except for the ones at Dan River which have
already been dumped into that waterway. This is an historic pollution event that has never
occurred before. When these lagoons are finally and thankfully shut down, they will be
"decanted" (by pumping out water three feet or more above the coal ash) and "dewatered" (by
pumping out heavily-polluted water near to and mixed with coal ash). Up until this point, the
lagoons were permitted only to discharge the very top layer of water in the lagoons, from which
coal ash pollutants supposedly had settled out. In the coming permit period, over a relatively
short period of time, Duke Energy will dump into the rivers of North Carolina the entire coal ash
polluted water contents of its coal ash lagoons—untold millions of gallons— located throughout
the state on almost all its major river systems. This dump will include the most polluted coal ash
water ever dumped into North Carolina's rivers, other than the flow from the Dan River
catastrophe.
•
This is an historic massive pollution event for North Carolina's waterways, including the
Catawba River and Lake Wylie. It is critically important that permits like the Allen permit
contain strong protections to treat this pollution and limit the harm that Duke Energy inflicts
upon North Carolina's communities and water resources. •
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington,DC
100%recycled paper

In addition, Duke Energy is continuing to operate this coal-fired plant, not close it. This
extended operation will prolong the water pollution from the flue gas desulphurization system
Duke Energy uses at Allen to limit the air pollution from its continued coal burning. This
treatment system results in a water discharge that is even more toxic, containing stronger
concentrations of toxics and heavy metals than the rest of Duke Energy's coal ash pollution
leaving this facility and entering the Catawba River and Lake Wylie. For this additional reason,
it is critically important that the Allen permit provide strong protections to treat this pollution •
and limit this additional harm that Duke Energy inflicts upon the River, the Lake, and the
surrounding and downstream communities in North and South Carolina. •
Unfortunately, in this draft permit, DEQ fails to live up to its responsibility to protect
North Carolina's families and clean water. Instead, DEQ has backtracked and neglected its most
important responsibilities. It proposes to let Duke Energy pump out and dump this massive
quantity of polluted water into the Catawba River and Lake Wylie without adequate protections.
And DEQ proposes to allow Duke Energy to escape its legal and moral responsibility to•treat the
dangerous flows of toxic pollutants it dumps into the River and the Lake from its flue gas
desulphurization system.
DEQ has omitted from this draft permit the changes it made in the permit for Duke
Energy's Marshall facility, on the same river, to address—although only partially—some of the
same defects that were included in an earlier Marshall draft permit. There is no explanation for
why DEQ has backtracked from the steps it took in the final Marshall permit, or why DEQ is
denying the same protections to residents who live around and downstream of the Allen facility.
We can only assume and hope that the DEQ leadership was not aware of the contents of
this draft permit when it was issued. We ask that the DEQ leadership read these comments,
discard this draft permit, start over, and put in place a permit that reflects the responsibility that
DEQ has to protect North Carolina,, its rivers and lakes, and its people from Duke Energy's coal
ash pollution.
1) The Draft Permit Abandons Protections Against Toxic Pollution to Give Duke
Energy What it Wants and to Follow the Lead of EPA Administrator Pruitt. The
Draft Permit Abandons Protections Against Toxic Pollution Contained in the 2016
Draft Permit for Allen.
Flows from the Ash Basin. In 2016, DEQ issued a draft permit for the Allen plant. It
provided that for discharges from the coal ash basin into the Catawba River(Outfall 002):
By February 28, 2021 there shall be no discharge of pollutants in bottom ash
transport water(if the decision made on December 31, 2017 is not to retire the
facility early). This requirement only applies to bottom ash transport water •
generated after February 28, 2021.
By December 31, 2023 there shall be no discharge of pollutants in bottom ash
transport water(if the decision made on December 31, 2017 is the early
2 •

retirement). This requirement only applies to bottom ash transport water
generated after December 31, 2023.
Duke Energy has not made a decision to retire the Allen facility early; to the extent it has
given an indication concerning retirement, it will be operating coal-fired units for the full
permit period through 2023 and beyond. Consequently, it continues to operate coal-fired
units that produce bottom ash water pollution. Therefore, under the 2016 Allen draft
permit, Duke Energy was required to eliminate the discharge of pollutants in bottom ash
transport water by February 28, 2021.
This provision would eliminate an ongoing source of serious pollution from coal
ash, water mixed with the bottom ash left over from the burning of coal. It would also
eliminate an entirely unnecessary pollution of the Catawba River created by Duke Energy
only for its own convenience and financial self-interest. Bottom ash by definition
contains no wastewater. Duke Energy creates this water pollution by irresponsibly
choosing to mix water with coal ash to transport it to an unlined coal ash lagoon. Of
course, it has been technologically possible and entirely feasible for the entire history of
the Allen plant to transport coal ash by truck or other transportation in a dry state away
from the waterway without mixing it with water and flushing it into an unlined coal ash
pit next to the Catawba River. DEQ should never have allowed Duke Energy to pollute
the Catawba River in this primitive way, and it should certainly stop this backward
practice at the first possible opportunity. For years, DEQ has been shirking its legal
responsibility by not requiring Duke Energy to use the best available technology—simple
truck or train transportation—to stop this unnecessary water pollution.
Yet, DEQ is now proposing to weaken even what DEQ proposed in 2016. Even
though DEQ has found that Duke Energy can stop this coal ash pollution no later than
February 28, 2021, DEQ is proposing now to allow Duke Energy to continue this
pollution through the end of the permit period, December 31, 2023, and perhaps forever:
The new proposed Allen permit provides:
By December 31, 2023, there,shall be no discharge of pollutants in bottom
ash transport water. This requirement only applies to bottom ash transport
water generated after December 31, 2023.
•
Under the 2016 Allen draft permit, Duke Energy would have gotten away with
this continued pollution only if it retired the Allen coal-fired units and thereby stopped
producing the bottom ash entirely. After coal was no longer burned at Allen, treatment
facilities would not have been needed.
But now in 2018, DEQ proposes to give the Catawba River, Lake Wylie, and the
communities of North and South Carolina the worst of both worlds: Both Duke Energy's
continued burning of coal and production of bottom ash through the permit period and
also Duke Energy's continued unnecessary creation of bottom ash water pollution at least
for the 5-year period of this new permit and perhaps forever. And DEQ proposes to do
this even though it is obvious that the bottom ash can be transported in a dry state without
3

•
polluting the Catawba River and even though DEQ has previously found Duke Energy
can effect this change at least by February 28, 2021.
This is nothing more than DEQ proposing to let Duke Energy off the hook for one
of its serious flows of coal ash pollution.
What is the justification for this remarkable abandonment of North Carolina's
clean water and communities? Not the well-being of North Carolina's communities. Not
protecting North Carolina's clean water. Not any legal prohibition on requiring Duke •
Energy to do the right thing. Believe it or not, DEQ is choosing to allow more serious
coal ash pollution of the Catawba River because Duke Energy wants this exemption and
because of the statements and preferences of EPA Administrator Scott Pruitt, who has
been.thoroughly discredited and who is notorious for his efforts to help out coal ash
utilities.
The only relevant statement in DEQ's so-called "Fact Sheet" (page 3) for this
permit is the following:
Duke provided the justification for the proposed deadline of December 31,
2023 and the DWR concurred with the compliance date. This deadline
incorporates an uncertainty due to the proposed EPA rulemaking that
might resultin different deadlines and/or BAT determinations.
This is the flimsiest excuse imaginable for this remarkable abandonment of North •
Carolina's people and clean water. Duke wants to keep polluting and does not want to
have to go to the trouble to stop. And Scott Pruitt has indicated he might take action to •
weaken regulations—even though he has not yet. In other words, since Duke Energy
wants this, DEQ will of course give Duke Energy what it wants. And DEQ wants to put
in place Scott Pruitt's policy preferences even before Scott Pruitt himself has attempted
to.
DEQ's backtracking is even more remarkable in light of what Scott Pruitt has
actually attempted to do. EPA under Scott Pruitt has adopted a rule that postpones the
application of the 2015 Effluent Limitation Guidelines (which protect against pollution
from coal ash sites) from 2018 to 2020. This delay rule is illegal; it is being challenged
in federal courts today. DEQ should follow the Effluent Limitation Guidelines as they
were adopted in 2015, since this remarkable action by Scott Pruitt is illegal and at the
least legally questionable.
But as explained in more detail below, that delay rule is irrelevant in this instance,
in any event. This postponement has no effect on what is contained in the Allen draft
permit issued by DEQ in 2016 because that draft permit required Duke Energy to stop
polluting through bottom ash transport water by February 28, 2021 —a date unaffected by
the attempted postponement only to 2020.
4

Thus, by caving in to Duke Energy's desires, DEQ is violating even the Pruitt
EPA's legally invalid rule. DEQ is denying North Carolina protections from Duke
Energy's coal ash pollution based on what it speculates Scott Pruitt might decide to do in
the future— if he is still in charge.
Toxic Flows from the FGD System. To make matters worse, DEQ has repeated
this illegal permit writing and unjustified delay of protections when addressing the most'
toxic flow of water pollution from the Allen plant, the flows of arsenic, mercury,
selenium, nitrate, and other toxics from Duke Energy's flue gas desulphurization system.
In 2016, DEQ proposed limits upon pollution of arsenic, mercury, selenium,
nitrate, and pH in this toxic flow before it enters the ash basin (internal outfall 005). Like
the limits on pollution from the ash basin itself, DEQ provided that Duke Energy had to
comply with these limits by February 28, 2021, if it did not decide to retire the Allen
coal-burning units. And this version of the Allen permit allowed for even more stringent
limits to be added:
• The limits shall be met by February 28, 2021 (if the decision made on
December 31, 2017 is not to retire the facility early). The limits shall be
met by December 31, 2023 (if the decision made on December 31, 2017 is
the early retirement).This time period is provided in order for the facility
to budget, design, and construct the treatment system. Permit might be re-
opened to implement the final EPA Effluent Guidelines and more stringent
limits might be added.
Now in 2018, DEQhas done a strikingbackflipto undercut these proposed
protections as much as possible. The new Allen draft permit provides the same limits for
arsenic, mercury, selenium. and nitrate but makes them meaningless:
Beginning on December 31, 2023, the permittee will comply with the
Steam Electric Effluent Limitations Guidelines for FGD wastewater(40
C.F.R. 423) in effect on December 1, 2020. Only monitoring is required
until December 31, 2023.
First, this permit provision again gives the people of North Carolina and their •
clean water the worst of both worlds: Duke Energy's continued production of extremely
toxic flue gas desulphurization pollutants due to the continued burning of coal at Allen
during the permit period and beyond, and the continued dumping of those pollutants
without limits into the unlined ash basin and then into the Catawba River and
groundwater for the entire permit period and perhaps forever.
Second, in this instance, the draft permit recognizes that the limits on toxic
pollutants are in effect (even under the legally invalid Pruitt regulation) on December 1,
2020—yet it does not require Duke Energy to comply with them. DEQ gives Duke
Energy this shocking exemption from complying with the law, when DEQ in 2016 had
5

already concluded that Duke Energy was entirely capable of putting in place pollution
controls on these toxics by February 28, 2021.
Third, DEQ has dropped the provision in the 2016 draft permit that more stringent
limits may be included.
And as remarkable, while the 2016 draft permit had put in place specific limits for
pH (between 6.0 and 9.0 standard units), the 2018 draft permit provides no pH limits at
all. We do not know whether this is an intended weakening of the draft permit or an
error. But in either case, this obvious gap needs to be filled.
Inconsistency with the Marshall Permit. These failures by DEQ are more
incomprehensible because less than three weeks before the Allen draft permit was issued,
DEQ issued a final Marshall permit that reversed in part similar failures in the draft
Marshall permit—for another Duke Energy facility also on the Catawba River, also in the
Charlotte area, and upstream of the Allen plant.
The Marshall draft permit issued by DEQ in 2016 provided for no discharge of
bottom ash water pollution as of January 31, 2021. Without advance warning to the
public, when DEQ issued a proposed Marshall permit in 2017,DEQ postponed this
requirement to December 31, 2023 and threatened to eliminate it entirely, based again on
the policy preferences of Scott Pruitt.
However, in response to public comments, DEQ relented, and the final Modified
Marshall NPDES permit provides that on November 1, 2021, Duke Energy shall stop
polluting through bottom ash transport water. This change was announced on April 3,
2018 —more than two weeks before this Allen draft permit was issued on April 18, 2018.
Even with the final Marshall decision, DEQ fell short. DEQ had already
determined that Duke Energy could stop this harmful pollution by January 31, 2021. But
when accepting that it had made a mistake in the 2017 proposed Marshall permit, in the
final permit DEQ still subjected North Carolina communities, Lake Norman, and the
Catawba River to nine additional months of harmful pollution by setting the required date
of compliance as November 1, 2021 —not January 31, 2021 as originally planned.
There is no explanation for this nine-month delay, which is unjustifiable since
Duke Energy has conceded and DEQ has found that Duke Energy can stop this pollution
by January 31, 2021.
Even so, to its credit, DEQ recognized that it had made a mistake in the 2017 draft
Marshall permit and ultimately required Duke Energy to stop polluting with bottom ash
transport water during the year Duke Energy had conceded it could stop this pollution.
Just over two weeks later, DEQ proposed exactly the same unreasonable multiyear delay
provision in the Allen draft permit that it corrected in the final Marshall permit—on the
same river and in the same region.
6 •

•
There is no explanation for this inconsistency. It appears that either the permit .
writers did not know about or overlooked the agency's decision on the Marshall permit or
are simply refusing to accept the decision of DEQ's leadership. Each possibility is
disturbing.
The Effect of the Pruitt Delay Rule. As indicated above, Scott Pruitt's postponement rule
is itself subject to ongoing legal challenges.I Even if the postponement withstands legal scrutiny
in the end, nothing in the rule revision provides a basis for allowing Duke Energy to continue its
bottom ash water pollution or to delay the limits on Duke Energy's toxic pollution from its flue
gas desulphurization system. EPA's postponement (codified at 40 CFR 423.11, 423.13, and
423.16) simply authorizes NPDES permitting agencies, starting in September 2017, to require
application of the guidelines as soon as November 1, 2020 as opposed to November 1, 2018.
That new rule does not require DEQ to reopen its prior compliance date determination and offers
no basis for further delaying compliance with bottom ash or FGD effluent limitations at Allen.
Of particular relevance here, the revised rule also does not change the factors set forth in
40 C.F.R. § 423.11(t)that DEQ is required to consider when establishing an "as soon as
possible" date for compliance. The only change related to compliance dates is the two-year
postponement of the beginning of the compliance period,so that compliance with bottom ash
and FGD effluent limitations must now occur"as soon as possible" between 2020 and 2023,
instead of between 2018 and 2023 in,the 2015 ELG Rule. The compliance date of February 28,
2021.in the existing Allen permit is within the later implementation period under the revised rule. •
EPA has emphasized that the standards for which it delayed the compliance deadlines remain in
• effect, despite the agency's ongoing reconsideration process.2 The revised rule itself provides no
basis for DEQ to revisit its original compliance date determination summarized in the 2016 Fact
Sheet for the Allen permit.
• In addition, there is no indication that Duke Energy will have any actual impediments to
meeting ELGs for bottom ash and FGD waste by the current deadline of February 28, 2021.
The ELG implementation dates in the 2016 draft permit already gave Duke Energy
several years of delay to comply with the ELGs for bottom ash transport water and FGD
wastewater. When the permit issued in 2016, the ELG then required the new limitations to start
"as soon as possible beginning November 1, 2018, but no later than December 21, 2023." 40
C.F.R. § 423.12(h), (k), (g) (emphasis added). DEQ then allowed Duke Energy, at its request, to
continue dumping toxic bottom ash transport and FGD wastewater into Lake Wylie and the
•
See, e.g.,Center for Biological Diversity v.Pruitt,No.4:18-cv-00050(D.Ariz.);see also Clean Water Action,
Sierra Club, Waterkeeper Alliance et al. v. E. Scott Pruitt, Administrator, U.S. Environmental Protection Agency, et
al., No. 18-60079(5th Cir.).
2 See 82 Fed.Reg. at 43,496("This maintains the 2015 Rule as a whole at this time,with the only change being to
postpone specific compliance deadlines for two wastestreams.");see also U.S.EPA,Response to Comment
Document,EPA-HQ-OW-2009-0819, SE06669,at 8("The only thing the Postponement Rule does is revise the
2015 ELG Rule's new,more stringent compliance dates for two wastestreams discharged from existing sources
(bottom ash transport water and flue gas desulfurization wastewater). Otherwise, it leaves the Rule unchanged.").
7

Catawba River for an additional two years and four months beyond November 2018, or until
February 28, 2021.
Although the EPA left to state permitting authorities the responsibility of determining
when the new limits will apply, EPA presumed 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, independently justified, and reflect consideration, at a minimum, of the
specific factors set forth in EPA's regulations. See id. In allowing delayed compliance the first
time, rather than exercising any independent judgment or attempting to verify any of the
information submitted by Duke Energy, DEQ simply"concurred" with the pithy technical
justification supplied by Duke Energy. This too fell short of the well-documented-justification
required by EPA regulation. But now DEQ manages to make the situation worse by delaying the
compliance date by years more—this time without even the veneer of legal justification under
federal or state law. Allowing unnecessary delay in complying with federal ELGs without any
valid justification is arbitrary and capricious.
Duke Energy's earlier justification demonstrated, if anything, that compliance was easily
obtainable by February 28, 2021, and Duke Energy has supplied no justification casting doubt on
the achievability of these dates. The dates in the 2016 Allen draft permit would apply as a matter
of best professional judgment ("BPJ"), even in the complete absence of an ELG dictating a date.
Furthermore, the hypothetical possibility that federal law might relax does not provide Duke
Energy or DEQ a legal basis to delay implementation of presently achievable, best available
technology. Allowing Duke Energy to keep discharging pollution when technology is readily
available to reduce and eliminate the discharges is indefensible and unlawful. DEQ must reverse
course and reject Duke Energy's unjustified request for delay.
This is not the first place a U.S. utility has tried to game ELG compliance dates. We note
that Michigan DEQ recently entertained a similar request from DTE Electric Company to delay
compliance with ELGs for bottom ash transport water at its DECO-Belle River plant. As here,
this request was simply based upon the EPA rule and reconsideration. Michigan's DEQ
ultimately rejected the request, which like this one, had no acceptable technical or legal
justification. The fact sheet and denial related to that request are attached. Attachment A, Mich.
Dep't Envtl. Quality, Fact Sheet, Permit No. MI0038172, DECO-Belle River Plant; Attachment
B, Email from Tarek Buckmaster, Mich. DEQ, to Casey Roberts et al., (Dec. 28, 2017).
The Draft Cliffside Permit. On May 2, one month after the 2018 draft Allen permit was
issued, DEQ issued a draft NPDES permit for Cliffside. Unlike the 2018 Allen draft permit, the
Cliffside draft permit prohibits bottom ash water pollution discharges as of November 1, 2020.
This is another example of the Allen facility being treated differently from other Duke Energy
facilities for no apparent reason.
CAMA. As the 2018 Allen draft permit sets out, North Carolina's Coal Ash Management
Act requires Duke Energy to convert to disposal of dry bottom ash by December 31, 2019.
CAMA makes this even clearer by stating that"dry" means "not in the form of liquid wastes,
wastes containing free liquids, or sludges." N.C.G.S. § 130A-309.210. By allowing Duke
8

Energy to discharge bottom ash water pollution after December 31, 2019, DEQ is also violating
the plain terms of CAMA.
2) The 2018 Allen Draft Permit Weakens Protections in the 2016 Draft Permit Against
Toxic Water Pollution During the Dumping of Coal Ash Polluted Water into Lake
Wylie and the Catawba River.
The dumping of millions of gallons of coal ash polluted water into Lake Wylie and the
Catawba River is a one-time major pollution event. It should require the closest and most careful
monitoring and the most effective treatment to ensure that the Lake and the River are protected.
The 2016 Allen draft permit unfortunately did not require daily monitoring, which is
entirely feasible with appropriate treatment and management of the discharge for this historic
pollution event. But during the dumping of the coal ash lagoon water more than three feet above
the coal ash, the 2016 draft permit at least required weekly sampling of some of the constituents
that were of greatest concern: BOD, Fecal Coliform,Selenium, Arsenic, Silver, and Mercury.
The 2018 has cut the frequency in testing by 75% and requires only monthly testing for each of
these critical components. The 2018 draft permit has also reduced testing for chronic toxicity to
quarterly.
Thus, under DEQ's new approach, an entire month could go by without DEQ or the
public knowing that Lake Wylie and the Catawba River are suffering unacceptable pollution •
from the most dangerous substances in the coal ash lagoon. And by the time the testing results
are obtained, it may be too late to take any action. The glaring need for frequent testing is
underscored by the experience of DEQ and Duke Energy on the Catawba River itself. During
Duke Energy's removal of the water in the Riverbend lagoons to Mountain Island Lake, there
was a spike in arsenic pollution. With any testing, the problem is not discovered until after the
waterway has suffered some harm. But under the proposed Allen permit, Lake Wylie and the
Catawba River could suffer extensive pollution before it was discovered, much less stopped. By
the time of discovery, the harm would be irreversible.
The 2016 draft permit offered additional protections and assurance by requiring
physical/chemical treatment of all the dumping of the coal ash polluted water into the Lake and
the River. This kind of treatment has been used by Dominion in Virginia and by Duke itself in
North Carolina. Because the flow of water is thereby treated, controlled, and monitored,it is
possible for quick action to be taken if pollution levels are unacceptable. The treatment also
gives greater assurance that the pollution will be kept under control. While the requirement was
general, at least there was an unqualified requirement for physical/chemical treatment.
•
In the 2018 draft permit, DEQ qualifies this requirement, perhaps to the point of
meaninglessness. DEQ has now added the qualifier that physical-chemical treatment is required
"if necessary, to assure state Water Quality Standards are not contravened in the receiving
stream." Once more as DEQ is apt to do, DEQ is making dilution the solution to pollution. It is
not requiring Duke Energy to remove coal ash pollution as long as the flows in Lake Wylie and
the Catawba River are big enough to dilute the pollution below Water Quality Standards. And it
is applying its oft-used dilution solution to substances like arsenic and mercury that do not go
9

away but instead accumulate in Lake Wylie and the Catawba River, with long term
consequences. Further, this qualification is indefinite and unexplained. Will treatment be
required only if violations are found as a result of once-a-month testing? Or has DEQ already
made a determination based on modeling that treatment will not be necessary, but is not
disclosing that determination in the permit?
Once more, DEQ is not requiring Duke Energy to implement known, available, and
entirely feasible technology to control and monitor pollution and is weakening protections that
were contained in the 2016 draft permit. For this dramatic pollution event, DEQ should require
physical-chemical treatment of Duke Energy's dumping, and not make water pollution treatment
dependent upon a vaguely described contingency.
3) In 20181 DEQ Is Retreating from its Permits Issued in 2015 and 2016 to Other Duke
Sites and Has Provided No Limits for Toxic Substances During the Dumping of
Coal Ash Lagoon Contents into Lake Wylie and the Catawba River.
Lake Wylie and the Catawba River are being subjected to Duke Energy dumping millions
of gallons of coal ash polluted water in an unprecedented way. Yet, DEQ has included no limits
on the amounts of the most harmful pollutants that Duke Energy can dump intothese important
•
waterways, even when Duke Energy is dumping the water that is mixed with coal ash at the
bottom of the lagoons. There are no limits for arsenic, mercury, lead, selenium, chromium,
cadmium, or zinc, or for nitrogen and phosphorus, or for some other constituents of concern.
DEQ appears to be relying upon the presumed ability of the flows of the Lake and the
River to dilute pollution. But DEQ has a responsibility to require Duke Energy to use the best
available technology to remove these harmful pollutants before they enter the Lake and the
River. Further, many of these pollutants accumulate and stay in the Lake and the River,,even if
their concentrations are diluted when they first enter the waterway. DEQ is allowing Duke
Energy to dump unlimited amounts of arsenic, mercury, lead, and other harmful pollutants into
Lake Wylie and the Catawba River during perhaps the largest single water pollution event in the
history of those waterbodies. DEQ's failure is even more glaring in that over 100,000 people
drink the water withdrawn immediately downstream from Duke Energy's pollution discharges.
DEQ in 2018 is walking back from the protections it put in place for the Catawba River
in 2016. In its 2016 permit for the closing of Duke Energy's Riverbend coal ash lagoons, also on
the Catawba River, DEQ put in place definite limits for toxic substances discharged when the
•
water was dumped into the River from those coal ash lagoons. Also, in 2016, DEQ put in place
limits on toxics discharged from Duke Energy's Cape Fear facility into the Cape Fear River. In
2015, DEQ put in place limits for toxic pollutants when Duke Energy dumped the coal ash
polluted water from its Sutton lagoons into the Cape Fear River. There is absolutely no reason
why DEQ in 2018 cannot put in place similar protective limits for the Catawba River when Duke
Energy dumps its coal ash polluted water out of its Allen lagoons.
10

•
4) DEO Has Set No Limits for Bromide, Despite Duke Energy's Dangerous Pollution
of the Catawba River with Bromides.
The draft permit contains no limits on bromide discharges from the Allen lagoons. When
bromide mixes with chlorine in treated drinking water supplies, it forms carcinogens known as
trihalomethanes ("THMs").3 Duke Energy's discharges of bromide into the Catawba River have
caused trihalomethanes to form in downstream drinking water supplies, including the drinking
water supply for the City of Charlotte.4 Duke Energy made similar admissions as part of its
criminal plea agreement.5 Duke Energy's bromide discharges can affect downstream
communities in North and South Carolina.6 Over one hundred thousand people depend upon
Lake Wylie for drinking water, and more downstream rely upon the Catawba River. The risk
presented by bromide discharges in the Catawba River is not merely hypothetical; in 2015,
bromide discharges caused THMs to form in treated drinking water above the Safe Drinking
Water Act regulatory level of 0.080 µg/L in water supplies from the Catawba River.
Despite this known threat to downstream drinking water supplies, it still does not appear
that DEQ has conducted Reasonable Potential Analysis to determine what limits need to be set
for bromide discharges in the Allen draft permit. Longstanding Clean Water Act regulations
require agencies to establish water quality-based permit limits on bromide if necessary to meet
narrative water quality standards, including standards to protect human health.
Under the ELG rule, EPA reaffirmed that this established requirement applies to bromide, .
and instructed permitting authorities to develop permit limits on a site-specific basis for bromide
when necessary to meet narrative water quality standards.8 North Carolina has put in place
exactly such narrative criteria for water quality to protect people from unsafe levels of pollutants
such as brominated trihalomethanes: "Human health standards: the concentration of toxic
3 EPA,Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
Category, 80 Fed. Reg.67,838,67,872,67,886(Nov.3,2015)("Bromide discharges from steam electric power
plants can contribute to the formation of carcinogenic DBPs [disinfection byproducts,e.g.,trihalomethanes] in
public drinking water systems,"and"[s]tudies indicate that exposure to THMs[trihalomethanes] and other DBPs
from chlorinated water is associated with human bladder cancer.").
4 Dep.Tr.of Duke Energy(via Corporate Designee Zachary Hall)at 47:14-48:15 (Feb. 10,2017)("Q.Okay. And
have discharges from Duke Energy's ash basin at Marshall contributed to the increases in trihalomethanes at the
Charlotte intake?A.They have.").
s Joint Factual Statement, United States of America v. Duke Energy,No. 5:15-CR-62-H at 52-53 (May 14,2015).
6 Duke Energy Compliance Officers' Report at 18-19, United States v. Duke Energy(E.D.N.C.Apr.29,2016).
40 C.F.R. § 122.44(d)(1)(i)("[e]ach NPDES permit shall include conditions meeting the following requirements . . .
. :any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards
under sections 301,304,306,307,318,and 405 of[the] CWA necessary to: (1)Achieve water quality standards
established under section 303 of the CWA, including State narrative criteria for water quality.").
e 80 Fed.Reg. at 67,886-87("[W]ater quality-based effluent limitations for steam electric power plant discharges
may be required under the regulations at 40 CFR 122.44(d)(1),where necessary to meet either numeric criteria(e.g.,
for bromide,TDS or conductivity)or narrative criteria in state water quality standards. . . .These narrative criteria
may be used to develop water quality-based effluent limitations on a site-specific basis for the discharge of
pollutants that impact drinking water sources, such as bromide.").
11

substances shall not exceed the level necessary to protect human health through exposure routes
of fish tissue consumption, water consumption, or other route identified as appropriate for the
water body."9 DEQ must set limits for bromide in the permit sufficient to protect everyone who
drinks water downstream, particularly when this large quantity of water from the coal ash
lagoons is dumped into the Catawba River.
5) DEQ is Giving Duke Energy Amnesty Going Forward for its Blatant Violations of
the Clean Water Act.
Duke Energy has admitted that it has constructed unpermitted discharges of coal.ash
polluted water into Lake Wylie and the Catawba River. This kind of illegal conduct formed the
basis of guilty pleas by Duke Energy companies to Clean Water Act coal ash crimes at
Asheville, Riverbend, and Lee in 2015, crimes for which the Duke Energy companies remain
under criminal probation. And unpermitted discharges of coal ash polluted water were treated by
DEQ as legal violations in its SOC with Duke Energy.
•
In this permit, however, DEQ is attempting to legalize what has been illegal in North
Carolina since the enactment of the Clean Water Act. DEQ is giving Duke Energy legal
permission to discharge coal ash polluted water from outfalls that Duke Energy created in direct
contravention of the Clean Water Act and its permit. DEQ now labels these illegal structures as
Outfalls 103, 104, 108, and 108B. This action by DEQ is even more striking because DEQ is
proposing to give this legal pass to a company that is under federal criminal probation for the
same sort of conduct at other coal ash sites in North Carolina.
DEQ is attempting to give Duke Energy amnesty for these open violations of the Clean
Water Act. And DEQ is trying to make it legal for Duke Energy to construct ways to direct the
flows of leaking coal ash polluting water to a Lake and a River that are public resources, popular
recreation areas, and important sources of drinking water for people in two states.
Instead of giving Duke Energy amnesty, DEQ should treat these pollution flows as what
they are and what they were constructed as: illegal flows of polluted water into Lake Wylie and
the Catawba River. These flows should be treated just like the unconstructed seeps were treated
in the SOC—as legal violations that Duke Energy must correct and for which Duke Energy pays
a fine. These flows should be eliminated by the closing of the Allen coal ash lagoons and/or
Duke Energy should be required to intercept them and prevent these polluted waters from
flowing into Lake River and the Catawba River.
In this respect, the 2018 Allen draft permit runs afoul of the anti-backsliding provisions
of the Clean Water Act. 33 U.S.C. § 1342(0); 40 C.F.R. § 122.44(11)(1). "[W]hen a permit is
renewed or reissued, [ ] effluent limitations, standards or conditions must be at least as stringent
as the final effluent limitations, standards, or conditions in the previous permit." 40 C.F.R.
§ 122.44(1)(1). In the prior permit, leaks that were directed to flow into the Lake and the River
were not allowed. Under this draft permit, Duke Energy is allowed to discharge those flows of
9 15A N.C. Admin.Code 2B .0208(a)(2).
12

water, untreated, through its pre-existing illegally constructed structures into the Lake and the
River.
6) Duke Energy's 316(a) Demonstration is Inadequate to Justify a Variance from
North Carolina's Water Quality Standard for Temperature.
We and others, including Clean Water for North Carolina, have commented previously
that Duke Energy's demonstration under 316(a) of the CWA, itself a necessary predicate to
getting a variance from temperature limits, is insufficient to support a variance. Because DEQ
continues to rely on the faulty demonstration in finding a thermal variance is justified, we
reiterate our previous comments here. Almost a decade ago, EPA's Office of the Inspector
General concluded that DEQ was not fulfilling its Clean Water Act responsibilities in protecting
fish populations from power plant temperature discharges. Attachment C, EPA, Office of
Inspector General, Oversight of North Carolina's Renewals of Thermal Variances (May'9,
2011). With this 2018 draft permit, DEQ has missed another opportunity to do the right thing
and demand more from Duke Energy before continuing their temperature variance.
Section 316(a) of the Clean Water Act provides narrow authority for a variance from
water quality standards for temperature, 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 Clean Water Act 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").
For the reasons we stated previously, Duke Energy has wholly failed to make the
necessary showing, and instead relies upon the shift over time towards thermally tolerant species
to support its continuing variance. Ignoring the unimpacted aquatic community that would be
there but for Duke's heated discharge, and instead relying on the already thermally tolerant
community present, would allow Duke Energy to reap the benefit of changes to the aquatic
community inflicted by thermal pollution in prior permit cycles. For this and other reasons, the
316(a) demonstration will not support a variance from water quality standard for temperature.
Even if the demonstration was sufficient to support a variance, neither the permit nor the
fact sheet illuminates the spatial extent of the variance. DEQ's own regulations allow departure
fromthe temperature limit in a "reasonable portion of the waterbody." See 15A N.C. Admin.
13

Code 02B .0208 (also requiring the thermal variance procedure under 316(a) of the CWA). As
our prior comments have pointed out, EPA has flagged Duke Energy's failure to identify the full
scope of the thermal plume among ongoing problems with Duke Energy's 316(a)
demonstrations.
7) DEQ Cannot Bypass Modification Procedures Based Upon Hypothetical
Amendments to the Coal Ash Management Act.
The modification proposes toadd a condition that correctly notes that "by December 31,
2019 the facility shall convert to the disposal of dry bottom ash, as defined in CAMA." See
Conditions A.(2.) and A. (3.). However, DEQ also has added language that purports to allow an
automatic modification of the date for dry bottom ash disposal: "if the House Bill is amended, in
such case the new date will be substituted without re-opening of the permit." DEQ's regulations
require all permit modifications to go through "the same public notice and other procedural
requirements as the issuance of permits," except for limited categories. 15A N.C. Admin. Code
02H .0114(b). An amendment in state law by the legislature is not one of the categories that
allow DEQ to bypass ordinary notice and comment procedures that govern its NPDES permitting
program. The attempt to bypass the ordinary procedural requirements for a permit modification,
by bootstrapping in as-of-yet changes in state law, must be eliminated, and in any event, has no
lawful basis.
8) Compliance Boundary.
The compliance boundary provision is unnecessarily ambiguous. The compliance
boundary has been determined and should be clearly incorporated by reference. North Carolina
implements some parts of its Groundwater Protection Rule ("2L Rule") through permits issued to
industrial facilities under the solid waste disposal statutes or the NPDES permit program. See
15A N.C. Admin. Code 2L .0106(c) (defining permitted as having a permit pursuant to N.C.
Gen. Stat. § 143-215.1 or § 130A-294). The 2L Rule, as we have previously commented, 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 2L .0107(c). The "compliance boundary" is a
"boundary around a disposal system at and beyond which groundwater quality standards may not
be exceeded." 15A N.C. Admin. Code 2L .0102(3).
The absence of a map designating a compliance boundary at the Allen facility was a
critical omission in the Allen permit. Although the Allen permit neglected to provide such a
map, prior maps approved by DEQ had embedded in them another flaw: the compliance
boundary at Allen extended into the Catawba River/Lake Wylie, the impermissible effect of
which was to allow contaminated groundwater to flow from beneath the ash pond into the Lake
Wylie. State law requires the compliance boundary to stop at the shoreline, and the Clean Water
Act does not allow Duke Energy to co-opt Lake Wylie as part of its waste disposal system. •The
major modification adds a groundwater compliance boundary map that no longer extends the
point of compliance into the Catawba River/Lake Wylie. We support this change and the
addition of related condition A.(28.) as important steps toward enforcing the 2L Rule at Allen
Steam Station. •
14

9) Other Issues.
This permit has been under consideration for years. We have submitted detailed
comments in the past on matters contained in the 2018 draft. Some of those issues have been
addressed, but several problems we have identified in prior drafts persist in the current proposal.
Attached are prior comments addressing those flaws, and we incorporate them by reference, to
the extent they remain applicable to this draft permit, rather than cutting and pasting them into
this letter. Attachments D, E& F, Comments of Catawba Riverkeeper Foundation, Waterkeeper
Alliance, and the Sierra Club re: Allen Steam Station (May 5, 2015, Dec. 7, 2016, & Jan. 4,
2017).
Thank you for your consideration of these comments. •
Sincerely,
z ,
Frank S. Holleman, III
Senior Attorney
Enclosures
15

•
Attachment A
DECO Bell River Fact Sheet
November 2017

1111
Permit No. MI0038172
FACT SHEET
PERMITTEE/DESIGNATED SITE NAME: DTE Electric Company/DECO-Belle River Plt
COUNTY: St. Clair
DESCRIPTION OF EXISTING WASTEWATER TREATMENT FACILITIES
Bottom ash transport water, nonchemical metal cleaning wastewater, and low-volume wastewater discharged through
Monitoring Point 001 B and/or Monitoring Point 002A are treated via sedimentation in ash settling basins prior to discharge
through Outfall 001 and/or Outfall 002, respectively. Groundwater, storm water, and combustion residual leachate from
the Range Road Site discharged through Monitoring Point 001 B are treated via settling. Storm water and low-volume
wastewater consisting of oily wastewater discharged through Monitoring Point 001 C are treated via an oil/water separator
skimming system prior to discharge through Outfall 001.
MAP OF DISCHARGE LOCATION
Facility Coordinates: Latitude 42.773888, Longitude-82.495833
\ I
II
1, •• c – t t8 spy' '�.f%the `l"'
t� a
t �, _ 1, i . _ OutfaII.002! .•.-_. t +, 'y 1• `an.
t Ir IttI D f.. Qtr Y
AMMO
� ti i Belie•River• -r1 iiv ,1 _ mill s
J.—• 5 - -lea i Powerf�Iant1 •4. thus
saassaillt
liklx_ Inixsi. . 1
. .
. ._
1,74
'1/4
�, h \r NI - r ', c 4'; t outran-ootiv
A1C _ k _ _,- •� _-.: `� �"
3, ...,. ., . : f
AS .. , ; , -"`,$ * : L
rush, _,_ ,. .,--,- . _. . y r.'
a , c . a� � �ie' � •! r
i.
MI . • .
RECEIVING WATER
The St. Clair River is protected for agricultural uses, navigation, industrial water supply, public water supply in areas with
designated public water supply intakes, cold-water fish, other indigenous aquatic life and wildlife, partial body contact
recreation, total body contact recreation (May through October), and fish consumption.

r
The receiving stream flows used to develop effluent limitations are a 95 percent exceedance flow of 130,000 cfs, a
harmonic mean flow of 209,000 cfs, and a 90-day, 10-year low flow of 185,000 cfs.
MIXING ZONE
For toxic pollutants, the volume of the St. Clair River used to ensure that effluent limitations are sufficiently stringent to
meet Water Quality Standards is 25 percent of the applicable design flow of the receiving stream.
For other pollutants, the volume of the St. Clair River used to ensure that effluent limitations are sufficiently stringent to
meet Water Quality Standards is the applicable design flow of the receiving stream.
RECEIVING WATER
The unnamed tributary of the Belle River(known locally as Webster Drain) is protected for agricultural uses, navigation,
industrial water supply, public water supply in areas with designated public water supply intakes, warm-water fish, other
indigenous aquatic life and wildlife, partial body contact recreation, total body contact recreation (May through October),
and fish consumption.
The receiving stream flows used to develop effluent limitations are a 95 percent exceedance flow of 0 cfs, a harmonic
mean flow of 0.2 cfs, and a 90-day, 10-year low flow of 0.1 cfs.
MIXING ZONE
For toxic pollutants, the volume of the unnamed tributary of the Belle River used to ensure that effluent limitations are
sufficiently stringent to meet Water Quality Standards is 25 percent of the applicable design flow of the receiving stream.
For other pollutants, the volume of the unnamed tributary of the Belle River used to ensure that effluent limitations are
sufficiently stringent to meet Water Quality Standards is the applicable design flow of the receiving stream.
EXISTING EFFLUENT QUALITY: (from DMR data from October 2010 to October 2015)
MONITORING POINT 001A
Parameter Minimum Maximum Maximum Maximum Units
Daily Monthly 7-Day Daily
Total Residual Chlorine --- --- --- 140 ug/I
Chlorination Duration --- --- --- 159 min/day
Flow --- 821.6 --- 959.1 MGD •
pH 7.5 --- --- 8.7 S.U.
Temperature --- --- --- 96 °F
Thermal Discharge --- 5,928 --- --- MBTU/hr
Total Copper --- --- --- 12 ug/I
Total Mercury --- 0.85 --- --- ng/I

MONITORING POINT 001 B
Parameter Minimum Maximum Maximum Maximum Units
Daily Monthly 7-Day Daily
Flow --- 9.85 --- 15.09 MGD
Oil & Grease --- 5 - 13 mg/I
Total Suspended Solids --- 18 --- 77 mg/I
MONITORING POINT 001 C
Parameter Minimum Maximum Maximum Maximum Units
Daily Monthly 7-Day Daily
Flow --- 0.135 0.385 MGD
Oil & Grease --- 7 --- 36 mg/I
Total Suspended Solids --- 16 44 mg/I
MONITORING POINT 002A- No discharge occurred during the period.
PROPOSED EFFLUENT LIMITATIONS: (see draft permit)
BASIS FOR PROPOSED EFFLUENT LIMITATIONS: (see Basis for Decision Memo)
ADDITIONAL INFORMATION
The Department proposes to modify the facility's previously issued permit in accordance with the Final EPA Rule in 40
CFR 423, entitled "Postponement of Certain Compliance Dates for the Effluent Limitation Guidelines and Standards for
the Steam Electric Power Generating Point Source Category," dated September 12, 2017. Specifically, the Department
proposes to postpone the interim compliance dates associated with the Schedule for Elimination of Bottom Ash Transport
Water Discharge, and to revise the final compliance date of that schedule to December 31, 2023.
The EPA projects that it will formulate revised effluent limitation guidelines for bottom ash transport water by fall of 2020. It
is the Department's intention to revise the facility's compliance schedule again at that time, consistent with the revised
effluent limitation guidelines and applicable facility design, procurement, and construction.
The revised compliance schedule proposed for the facility is excerpted below from the proposed draft permit:
10. Schedule for Elimination of Bottom Ash Transport Water Discharge
The permittee shall eliminate the discharge of bottom ash transport water to surface waters of the state in
accordance with the following schedule. All submittals shall be to the Department. In accordance with the Final
EPA Rule in 40 CFR 423, entitled "Postponement of Certain Compliance Dates for the Effluent Limitation
Guidelines and Standards for the Steam Electric Power Generating Point Source Category," dated September 12,
2017, the dates listed in items a. through e., below, are now postponed by this permit modification. The EPA
projects that it will formulate revised effluent limitation guidelines for bottom ash transport water by fall of 2020. It
is the Department's intention to revise this entire compliance schedule at that time consistent with the revised
regulation and applicable design, procurement and construction, based on the revised effluent limitation
guidelines.
a On or before (date postponed and not enforceable under this permit), the permittee shall submit the
completed technology feasibility evaluation and the approach selected to achieve elimination of the
discharge of bottom ash transport water to surface waters of the state at Monitoring Point 001A,
Monitoring Point 001B, and Monitoring Point 002A, specified in Part I.A.1., Part I.A.2., and Part I.A.4.,

respectively. The submittal shall include an assessment of the ability to design and build the selected
approach.
b On or before (date postponed and not enforceable under this permit), the permittee shall commence the
engineering design process for the selected approach.
c. On or before (date postponed and not enforceable under this permit), the permittee shall submit a status
report that describes the ongoing engineering design process, and the procurement/fabrication
processes, of the selected approach.
a On or before (date postponed and not enforceable under this permit), the permittee shall commence
construction for the selected approach.
b On or before (date postponed and not enforceable under this permit), the permittee shall submit a status
report of the ongoing construction, and specify any impediments to meeting the final compliance date.
c On or before December 31, 2023, the permittee shall eliminate the discharge of bottom ash transport
water to surface waters of the state at Monitoring Point 001A, Monitoring Point 001B, and Monitoring
Point 002A, specified in Part I.A.1., Part I.A.2., and Part I.A.4., respectively.
This proposed revision will also necessitate a revision to the permit condition entitled Bottom Ash Transport Water
Discharge Prohibition. The proposed revision is excerpted below from the proposed draft permit:
11. Bottom Ash Transport Water Discharge Prohibition
The EPA projects that it will formulate revised effluent limitation guidelines for bottom ash transport water by fall of
2020. It is the Department's intention to revise the entire compliance schedule of the bottom ash transport water
discharge prohibition listed above at that time, consistent with the revised regulation and applicable design,
procurement and construction, based on the revised effluent limitation guidelines.
Beginning on December 31, 2023, the permittee is prohibited from discharging newly generated bottom ash
transport water from any outfall.
No changes to numeric limits are proposed as part of this permitting action.
REGISTER OF INTERESTED PERSONS
Any person interested in a particular application, or group of applications, may leave his/her name, address, and
telephone number as part of the file for an application. The list of names will be maintained as a means for persons with
an interest in an application to contact others with similar interests.
PUBLIC COMMENT
Persons wishing to submit comments or request a public hearing should go to https://miwaters.deq.state.mi.us, select
'Public Notice Search,' search for this public notice by entering the permit number or site name into the search field, click
'Search', click'View,'click 'Add Comment,'enter information into the fields, and then click'Submit.' Comments or
objections to the draft permit received between November 17, 2017, and December 18, 2017, will be considered in the
final decision to issue the permit.
Any person may request the Department of Environmental Quality(Department) to hold a public hearing on the
application. The request should include specific reasons for the request, indicating which portions of the application or
draft permit constitute the need for a hearing. If submitted comments indicate significant public interest in the application
or if useful information may be produced, the Department, at its discretion, may hold a public hearing on the application.
If a public hearing is scheduled, public notice of the hearing will be provided at least 30 days in advance. The hearing will
normally be held in the vicinity of the discharge. The Department will consider comments made at the hearing when
making its final determinations on the permit. Inquiries should be directed to Christine Aiello, Permits Section, Water
Resources Division, Department of Environmental Quality, P.O. Box 30458, Lansing, Michigan 48909-7958; telephone:
517-284-5582; or e-mail: [e-mail].

Attachment B
Michigan DEQ Email re December 2017
Final Bell River Permit Modification

1/3/2018 Sierra Club Mail-NPDES Permit No.M10038172 DECO-Belle River Pit Modification
1441 SIERRA Casey Roberts <[e-mail]>
CLUB
NPDES Permit No. M10038172 DECO-Belle River Pit Modification
Buckmaster,Tarek(DEQ) <[e-mail]> Thu, Dec 28, 2017 at 1:49 PM
To: "[e-mail]"<[e-mail]>, "Oday Salim GLELC ([e-mail])"
<[e-mail]>, Thomas Cmar<[e-mail]>, "[e-mail]"
<[e-mail]>
Cc: "Alexander, Christine (DEQ)" <[e-mail]>, "Argiroff, Phil (DEQ)" <[e-mail]>,
"Aiello, Christine (DEQ)" <[e-mail]>
Dear Ms. Roberts, Mr. Cmar, Mr. Salim, and Ms..Strong:
Thank you for your comments submitted via email and MiWaters in regard to the permit modification proposed for the
DTE Electric Company's Belle River Power Plant. The MDEQ proposed to modify this permit in accordance with the Final
EPA Rule in 40 CFR 423, entitled "Postponement of Certain Compliance Dates for the Effluent Limitation Guidelines and
Standards for the Steam Electric Power Generating Point Source Category,"effective September 18, 2017. Specifically,
the MDEQ proposed to postpone the interim compliance dates associated with Part I.A.10—Schedule for Elimination of
Bottom Ash Transport Water Discharge, and to revise the final compliance date of that schedule, from December 31,
2021, to December 31, 2023. This proposed revision to Part I.A.10. of the permit would also necessitate a similar
revision to Part I.A.11.—Bottom Ash Transport Water Discharge Prohibition.
Your comments expressed opposition to the proposed revisions to Part I.A.10.—Schedule for Elimination of Bottom Ash
Transport Water Discharge, and Part I.A.11. —Bottom Ash Transport Water Discharge Prohibition. Specifically,
commenters requested that the MDEQ reinstate the final compliance date of December 31, 2021, and that the interim
deadlines associated with that final compliance date also be reinstated.
Based on the number of comments received during the public notice period for this proposed permit
modification, and after careful consideration of these comments and consistent with further evaluation of
EPA's postponement rule, the MDEQ has agreed to reinstate the final compliance dates of both Part I.A.10.
and Part I.A.11., to December 31, 2021, and the final modified permit, issued today, now reflects these
changes. Please see the attached PDF copy of the permit.
As you know, the EPA's postponement rule delays, for a period of two years, the earliest compliance date
for the new, more stringent, BAT effluent limitations for bottom ash transport water. This rule postpones the
earliest compliance date from November 1, 2018, to November 1, 2020. Given this, the MDEQ believes
that postponement of the interim compliance dates associated with Part I.A.10. of the subject permit is both
justified and necessary to avoid interim compliance dates that are earlier than the new earliest compliance
date set forth in EPA's postponement rule. Note that the only interim compliance date retained in the
schedule within the subject permit is July 1, 2021. That date has been retained because it is later than the
new earliest compliance date established by EPA's postponement rule.
There was also a request to extend the public comment period and hold a public hearing on the permit
modification. The MDEQ has determined that a public hearing is not necessary based on restoration of the
final compliance date of December 31, 2021. Similarly, the MDEQ has determined that an extension to the
public comment period is not warranted.
https://mail.google.com/mail/u/0/?ui=2&ik=5d8050484f&jsver=1 QCYKmIiAi4.en.&view=pt&msg=1609e7598ed2f4c4&q=from%3A%20BUCKMASTERT... 1/2

1/3/2018 Sierra Club Mail-NPDES Permit No.M10038172 DECO-Belle River Plt Modification
In closing, the MDEQ believes the permit modification and change to the schedule fully complies with
applicable state and federal law. Thank you again for your comments and for your willingness to share your
concerns with us. We greatly value your participation in this process and believe that it resulted in a better
permit. If you have any questions about the subject permit as revised, please do not hesitate to contact me.
Sincerely,
Tarek Buckmaster
Lakes Erie and Huron Permits Unit
Permits Section, Water Resources Division
Michigan Department of Environmental Quality
517-230-4233 New Number
[e-mail]
NPDES Permit-FINAL_DECO-Belle River Plt.pdf
310K
https://mail.google.com/mail/u/0/?ui=2&ik=5d8050484f&jsver=1 QCYKm1iAi4.en.&view=pt&msg=1609e7598ed2f4c4&q=from%3A%20BUCKMASTERT... 2/2

{
RECEIVEDIDENRIDWR
MAY 18 2018
Water Resources
perm►ttin9
Attachment C
EPA OIG May 2011
Oversight of NC Thermal Variances

SED 3J4
� vV
U.S.ENVIRONMENTAL PROTECTION AGENCY
a OFFICE OF INSPECTOR GENERAL
'7k PRO's
Catalyst for Improving the Environment
Evaluation Report
Oversight of North Carolina's
Renewals of Thermal Variances
Report No. 11-P-0221
May 9, 2011

r
Report Contributors: Dan Engelberg
Jayne Lilienfeld-Jones
Tim Roach
Gerry Snyder
i
•Abbreviations
BIP Balanced, indigenous population
CFR Code of Federal Regulations
CWA Clean Water Act
DWQ Division of Water Quality
EPA U.S. Environmental Protection Agency
MOA Memorandum of agreement
NPDES National Pollutant Discharge Elimination System
OIG Office of Inspector General
OWM Office of Wastewater Management
Hotline
To report fraud,waste, or abuse, contact us through one of the following methods:
e-mail: OIG_Hotline+a?epa.gov write: EPA inspector General Hotline
phone: [phone] 1200 Pennsylvania Avenue NW
fax: [phone] Mailcode 8431 P (Room N-4330)
online: http:lwvww.epa.govloig!hotline.htm Washington, DC 20460

U.S. Environmental Protection Agency 11-P-0221
1191
'Z Office of Inspector General May a,2011
o
'44 PRO" At a Glance
Cuta4rst for improving the Environment
Why We Did This Review Oversight of North Carolina's Renewals of
The Office of inspector- Thermal Variances
General received a Hotline
complaint alleging that the What We Found
State of North Carolina's
National Pollutant Discharge Region 4 has not adequately implemented management controls contained in its
Elimination System (NPDES)
memorandum of
agreement with North Carolina. Properly implementedlemen
ted controls
permits do not protect waters would assure EPA that NPDES permits would comply with the CWA
and
from harmful environmental Ai
applicable federal regulations. In four of the six draft permits we reviewed,
°effects caused by thermal Region 4 did not agree with the North Carolina Division of Water Quality that
discharges, \Ve evaluated forth there was sufficient information to support the draft permit limits for
Carolina's and Region 4's temperature.Region 4 requested that the state add conditions to the final permits
compliance with Clean Water so that information could be collected to determine whether the thermal limits
Act(CWA)requirements fhr harm aquatic life.The two other draft permits we reviewed either did not
protecting surface waters from contain a thermal variance request,or the region never commented on the
thermal di,charges. thermal variance.We also found that the state limited the public's opportunity to
Background review information and comment on these variances by not following regulatory
Power and int ustrial facilities requirements for developing complete permit fact sheets and public notices.
draw water from rivers and Due to procedural lapses by the North Carolina Division of Water Quality and
lakes to cool equipment and Region 4,it cannot be determined whether waters are protected from harmful
then discharge those cooling
waters at a highertcmperature environmental effects caused by thermal discharges.The state and Region 4 will
back rota those.e waterbodies. not make further determinations on the thermal variances until these facilities
Either a state or the U.S. request NPDES permit renewals. As a result,until 2015, these facilities will
I ith r atai Protection continue discharging heated waters as allowed under their current permits and
Agenc}` (1'_PA)may issue a thermal variances.
variance under CNA A Section What We Recommend
316(a)to allow fteilities to
discharge cooling waters at an We recommend that the EPA Regional Administrator,Region 4,enforce the
alternative therrntt' effluent management controls of the NPDES memorandum of agreement;verify that
limit that is still protective of thermal variances are protective of a balanced,indigenous population;and
aquatic
verify that permit fact sheets and public notices comply with federal regulations.
The region agreed with our recommendations. We agree that their actions meet
For further lnformatio the intent of the recommendations.
contact our Office of
Congressional,Public I t
and Management at
[phone].
The full report is at:
www s c uv!ojtreports12O111
20114509-11.P-0221.pdf

z• UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
.;Sa 4 WASHINGTON, D.C.20460
4
44.Ppo1F�
THE INSPECTOR GENERAL
May 9,2011
MEMORANDUM
SUBJECT: Oversight of North Carolina's Renewals of Thermal Variances
Report No. 11-P-0221
FROM: Arthur A. Elkins,Jr. 'Itth) G'
Inspector General
TO: Gwendolyn Keyes Fleming
Regional Administrator,Region 4
This is our report on the subject evaluation conducted by the Office of Inspector General (OIG)
of the U.S. Environmental Protection Agency(EPA).This report contains findings that describe
the problems the OIG has identified and corrective actions the OIG recommends. This report
represents the opinion of the OIG and does not necessarily represent the final EPA position.
Final determinations on matters in this report will be made by EPA managers in accordance with
established audit resolution procedures.
The estimated direct labor and travel costs for this report are $245,398.
Action Required
In accordance with EPA Manual 2750,you are required to provide a written response to this
report within 90 calendar days. You should include a corrective actions plan for agreed-upon
actions,including milestone dates.Your response will be posted on the OIG's public website,
along with our memorandum commenting on your response.Your response should be provided
as an Adobe PDF file that complies with the accessibility requirements of Section 508 of the
Rehabilitation Act of 1973,as amended.The final response should not contain data that you do
not want to be released to the public; if your response contains such data,you should identify the
data for redaction or removal.We have no objections to the further release of this report to the
public. We will post this repott to our website at http://www.epa.gov/oig.
If you or your staff have any questions regarding this report,please contact Wade Najjum at
202-566-0832 or najium.wadegpa.gov,or Dan Engelberg at 202-566-0830 or
[e-mail].

Oversight of North Carolina's Renewals of 11-P-0221
Thermal Variances
Table of Contents
Purpose 1
Background 1
Clean Water Act Section 316(a) Variances 1
North Carolina's and EPA's Responsibilities for Implementing
CWA 315(a) Thermal Variances 1
Scope and Methodology 3
Results of Review 3
Variance Renewals Lack Adequate Support 4
Permit Fact Sheets Were Missing Critical Information 5
Public Notices Were Missing Required Elements 6
Conclusion 7
Recommendations 7
Agency Response and OIG Comment 7
Status of Recommendations and Potential Monetary Benefits 8
Appendices
A List of Reviewed Permits 9
B Agency Comments.. 10
C Distribution 12

r
Purpose
in August 2010,the Office of Inspector General received a Hotline complaint
alleging that the State of North Carolina's National Pollutant Discharge
Elimination System(NPDES)permits do not protect waters from harmful
environmental effects caused by thermal discharges into lakes.The U.S.
Environmental Protection Agency (EPA),Office of Inspector General,evaluated
North Carolina's and Region 4's compliance with Clean Water Act (CWA)
requirements for protecting surface waters from thermal discharges at selected
facilities.
Background
Clean Water Act Section 316(a) Variances
{
Power and industrial facilities draw water from lakes and rivers to cool equipment.
These cooling waters,known as thermal effluents after they are heated, are
discharged from point sources(such as pipes)back into those waterbodies.Thermal
diluents are regulated because heat is identified as a pollutant under 40 Code of
Federal Regulations(CFR) §122.2. A facility may be authorized to discharge
pollutants into waters of the United States by obtaining an NPDES permit.
A permitting authority (either a state or EPA) issues NPDES permits,which may
contain a variance to a thermal effluent limit under 40 CFR, subpart H. This
variance allows facilities to discharge cooling waters at an alternative thermal
effluent limit that is still protective of aquatic life. To obtain a CWA 316(a)
thermal variance,the operator of a facility must demonstrate to the permitting
authority that an alternative thermal discharge limit will be protective of the
indigenous aquatic community.This demonstration can be a detailed study from
the permitted facility with supporting data showing that the alternate effluent
limitation assures the"protection and propagation of a balanced, indigenous
community of shellfish,fish,and wildlife"as defined in 40 CFR §125.71(c).This
alternative effluent limit,or variance, is only in effect for the duration of the
current permit.To obtain a CWA 316(a)thermal variance,a facility must include
a request for the variance as part of the permit application.The applicants request
to continue a thermal variance must also include a demonstration that the
alternative effluent limit continues to assure the protection and propagation of the
balanced, indigenous population(BIP).
North Carolina's and EPA's Responsibilities for implementing
CWA 316(a) Thermal Variances
In 1975, EPAl;ranted the State of North Carolina authority to issue NPDES
permits. In 1983, both parties signed a memorandum of agreement(MOA)
establishing policies,responsibilities, and procedures for administering the
NPDES program.Today,the North Carolina Department of Environment and
11-P-0221 1

Natural Resources, Division of Water Quality(DWQ), is responsible for surface
water and ground water protection in the state.DWQ's Environmental Services
Section and the Surface Water Protection Section,NPDES Permit Unit,share in
the review of NPDES permit applications and renewals.
In North Carolina,the process for requesting an NPDES permit with a thermal
variance begins with the submission of a facility's signed application to DWQ.
For permit requests that include a CWA 316(a)thermal variance,the
Environmental Services Section described its internal review process. The staff
members review DIP reports for biological and physical/chemical data provided
by the facility.The Environmental Services Section then submits its
determination as to whether there is a B1P to the Permitting Unit.which prepares
a draft NPDES permit.The Permitting Unit makes the final determination about a
permittee's request far continuance of a CWA 316(a)variance. The NPDES
Permit Unit makes the draft permit available for public review and comment
through a public notice. EPA Region 4 should also receive a copy of the draft
permit and any additional information requested for its review.
In 2007,the State of North Carolina and EPA Region 4 updated their MOA.
According to the 2007 MOA,Region 4 will oversee the state's NPDES program
for consistency with the CWA. state legal authorities,the MOA,the state's CWA
Section 106 workplan..and all applicable federal regulations. Under the 2007
MOA,the region may provide comments, recommendations, or objections to a
draft NPDES permit. Under 40 CFR §123.44(c)(5),the Regional Administrator
may object to a draft permit if the Regional Administrator determines that
provisions of the permit relating to the maintenance of records, reporting,
monitoring, sampling, or the provision of any other information by the permittee,
are inadequate to assure compliance with permit conditions. The period of review
may be up to 90 days from receipt of the proposed permit. If the region chooses to
object to the draft permit and the state fails to make the changes detailed in the
objection,the region assumes authority for issuing the NPDES permit under the
MOA.
Under the MOA, DWQ sends a copy of the draft permit package to EPA
Region 4.This package includes a copy of the public notice,the draft permit, the
application,the fact sheet or statement of basis associated with the permit,and
notices of public hearings.According to 40 CFR.§124.8,the fact sheet shall
contain,when applicable,a brief summary of the basis for the draft permit
conditions.The September 2010 Permit Writers'Manual suggests that the fact
sheet should include detailed discussions of the development of the permit
limitations for each pollutant. It must also contain,when applicable, a justification
for continuing athennal variance. Under 40 CFR §124.8(a),DWQ must send the
fact sheet to the permit applicant and to any others requesting a copy.
To assess the quality of NPDES permits,the EPA Office of Water, Office of
Wastewater Management(OW'1v1), began conducting permit quality reviews in
'1-P-0221 2

2007. OWM shared its findings for reviews conducted in Regions 4,7,and 9.
According to OWM,the permit files containing CWA 316(a)thermal variances
generally did not contain documentation supporting the variances.
To remind states and regions about responsibilities concerning CWA 316(a)
variances, OWM issued a 2008 memorandum clarifying the requirements for
issuing or renewing a CWA 316(a)thermal variance.The memorandum states,"It
is essential that permitting authorities require applicants to provide as much
information described in 40 CFR §125.72(a)and(b)as necessary to demonstrate
the alternative effluent limit assures the protection and propagation of the BIP." In
addition to this memorandum, Region 4 sent comment letters about draft permits
to DWQ.These letters requested that the final permits contain a condition that
permittees perform additional studies to determine whether the thermal variances
allow for a BIP.The final permits contained requests for permittees to conduct
additional studies.
Scope and Methodology
We reviewed permit application materials for seven facilities(appendix A). We
restricted our analysis to DWQ's compliance with requirements for permits with a
CWA 316(a)thermal variance,and Region 4's review of these draft permits. We
discussed with OWM, Region 4,and the North Carolina Department of
Environment and Natural Resources the requirements to support a CWA 316(a)
variance renewal. We also obtained and reviewed the public law,federal
regulations,and Agency guidance pertaining to CWA 316(a)variances in NPDES
permit renewals.
We conducted our review from November 2010 to March 2011 in accordance
with generally accepted government auditing standards.Those standards require
that we plan and perform our review to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on our
objectives. We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our objectives.
Results of Review
Region 4 has not adequately implemented management controls contained in its
MOA with North Carolina. Properly implemented controls would assure EPA that
NPDES permits comply with the CWA and applicable federal regulations.In four
of the six draft permits we reviewed, Region 4 did not agree with DWQ that there
was sufficient information to support the draft permit limits for temperature.This
information was needed so that Region 4 could determine whether proposed
thermal variances would harm aquatic life.Region 4 requested that the state add
conditions to the final permits so that information could be collected to determine
whether the thermal limits harm aquatic life. According to the documents we
obtained from DWQ,these facilities have been operating with a CWA 316(a)
11-P-0221 3

•
thermal variance or collecting water temperature data since the mid-1970s
through the early 1990s. Two other draft permits we reviewed either did not
contain a thermal variance request or the region never commented on the thermal
variance. As of January 2011. DWQ reported that the draft permit had not yet
been developed for one other facility in our sample. We also found that the state
limited the public's opportunity to review information and comment on these
variances by not following regulatory requirements for developing complete
permit fact sheets and public notices.
Due to procedural lapses by North Carolina and Region 4, it cannot be determined
whether waters are protected from harmful environmental effects caused by
thermal discharges. The state and Region 4 will not make further determinations
on the thermal variances until these facilities request NPDES permit renewals.
Region 4 and the public will not be able to assess whether these discharges are
harming the BIP of the waterbodies until the permits expire in 2015.
Variance Renewals Lack Adequate Support
In four of the six draft permits we reviewed, Region 4 did not find sufficient
support to agree with DWQ's decision to continue the CWA 316(a)thermal
variances.To continue a thermal variance, federal regulations allow a permit
applicant to demonstrate that a HIP does not exhibit any appreciable harm from
the prior normal operating discharges. For three of these permits, Region 4 sent
comment letters to DWQ.The region objected to the fourth because it did not
have sufficient support for the thermal variance. In followup correspondence,
Region 4 determined that that DWQ satisfied the conditions of the objections.
During 2010,Region 4 reviewed the draft permits for three facilities and, in each
case,provided comments to DWQ regarding support for approving the
permittee's request to continue with the thermal variance. For each of these draft
permits, Region 4 stated in its comments that the"report lacks detail and did not
generate information sufficient to support a Section 316(a)variance determination
for the next permit cycle."For these three permits.the region developed a list of
items to address in the future study plan for the next permit cycle.
In response to the region's comments, DWQ inserted a condition into the renewed
permits requiring facilities to provide their study plans to Region 4. These permits
do not expire until 2015.
Region 4 objected to one draft permit because it was concerned with the allowed
monthly average temperature difference of 13.9 degrees Celsius as compared with
the receiving waters. DWQ adjusted the permit limit to allow a temperature
change of 8.5 degrees Celsius,resolving Region 4's concerns. DWQ issued the
modified permit on May 26,2010.
Region 4 also reviewed draft permits for two of the three other facilities in our
sample. In one case,the region did not comment on the thermal variance in the
11-P-0221 4

draft permit. In another one,Region 4 has not yet reviewed the draft permit
because the state is currently developing it. in the final draft permit we reviewed,
there is no thermal variance. DWQ told us the receiving water is classified as a
cooling pond and is not considered a"water of the State"; therefore,the facility
can discharge at a higher temperature.The permit states that in no case should the
ambient temperature exceed 32 degrees Celsius as a result of operations. One of
the two water-sampling locations in the permit is at the discharge point from the
dam, which we estimate to be approximately 2 miles downstream from the
facility.
We discussed this distance with the Region 4 permit reviewer and were told that
the dam discharge sampling point may not be appropriate,and that this matter will ]"
be discussed with the state during the next permit renewal. The permit reviewer
agreed that without a variance,the discharge must meet the water quality
standards at all points in the lake.
In the four draft permits we reviewed that contain a thermal variance, Region 4
concluded that there were insufficient data to support the state's determination
that thermal variances will result in no appreciable harm to the waterbodies' L3lP.
These were all permit renewals rather than new permits;therefore, Region 4 had
previous opportunities to request that more data be collected to determine the
effects of these variances.Had the region more closely monitored these draft
permits as required under the current and previous MOAs, it would be in a
position to determine whether renewing the thermal variances was appropriate.
Without this support,we cannot determine whether these waterbodies are
protected from harmful environmental effects caused by thermal discharges at the
facilities we reviewed.
Permit Fact Sheets Were Missing Critical Information
Most of the draft permits we reviewed were missing critical information needed to
allow EPA and the public an opportunity for review and comment as required by
federal regulations. Five fact sheets we reviewed contained insufficient
information to explain the basis for approving the thermal variance and the
associated permit limits.As of January 2011, a DWQ permit writer reported that
one permit is under review and the state has not developed the fact sheet.The
other draft permit we reviewed did not contain a CWA 316(a)thermal variance,
so reference to it in the fact sheet was not necessary. Without a complete
summary of the state's CWA 316(a)variance decision in the fact sheet,neither
EPA nor the public has the needed information to understand the state's rationale
for approving these thermal variances.
According to 40 CFR §124.8, every draft NPDES permit that incorporates a
variance must include a fact sheet.The fact sheet establishes the principal facts
and the significant factual, legal,methodological, and policy questions considered
in preparing the draft permit,as well as the basis for the permit limits, including
11-P-0221 5

references to applicable statutory or regulatory provisions. A fact sheet provides a
critical internal control mechanism because it is a source of information that
explains a state's decision to both the region and the public. OWM's 2008
memorandum reiterated the importance of facts sheets. The memorandum stated
that not only is a fact sheet required as part of an NPDES permit containing a
CWA 316(a)thermal variance, but it must explain why the permitting authority
believes the variance is justified.The fact sheet should also explain the thermal
variance history (if it is a renewal)as well as the basis for continuing the variance.
For the five fact sheets with insufficient information, details about CWA 316(a)
thermal variances ranged from general information to no information whatsoever.
In compliance with 40 CFR §124.8(b)(5), DWQ stated why the variance appears
justified in four of the five fact sheets. DWQ concluded that the waterbody
receiving thermal waters has a balanced indigenous macroinvertebrate and fish
community_One fact sheet did not contain this statement.These five fact sheets
also did not contain a brief summary of the basis for the permit conditions(i.e.,
thermal variances), as required by 40 CFR §124.8(b)(4). Region 4 did not
comment on the contents of these fact sheets when it reviewed the draft NPDES
permit packages sent by DWQ. Without complete information in fact sheets, the
public may not fully know the permit conditions pertaining to the CWA 316(a)
thermal variance.
Public Notices Were Missing Required Elements
The public notices for five of six draft permits did not contain the required
statements describing the proposed thermal variance. Because one facility does
not have a thermal variance, the public notice did not need information about
thermal variances. A final permit request was not under review by DWQ.and a
public notice had not been issued. Statements about thermal variances alert the
reader that one is being proposed for the facility. It provides a comparison of the
water-quality-based limit and the less-stringent proposed limit allowed under the
variance. The regulations require that a public notice for a draft permit with a
thermal variance contain statements that address the following:
1. The thermal component of the discharge is subject to effluent
limitations under CWA Section 301 or 306 and a brief description,
including a quantitative statement, of the thermal effluent limitations
proposed'.under Section 301 or 306.
2. A Section 316(a) request has been tiled and that alternative, less-
stringent effluent limitations may be imposed on the thermal
component of the discharge under Section 316(a),and a brief
description, including a quantitative statement, of the alternative
effluent limitations, if any, included in the request.
According to the regional staff person who reviews the state's draft permits,the
public notice should discuss the thermal variance. The permit reviewer said the
11-P-0221 6

state may not send a copy of the public notice with the draft permit, but it is
sometimes attached to the fact sheet. She was not aware that the public notices we
reviewed did not meet the regulatory requirements. Failing to include this
information in the public notice significantly reduces the public's awareness of
the state's decision to allow a thermal variance in the permit.
Conclusion
We cannot determine whether North Carolina's approval of permits with CWA
316(a)thermal variances protects aquatic populations.The region determined that
the thermal limits for four of the six facilities we reviewed were renewed based on
insufficient documentation of proposed thermal variances. The process for issuing
six of the seven facilities' permits did not follow important process safeguards.
North Carolina and Region 4 have not followed a number of requirements
contained in federal regulations, leading to incomplete documentation of the
state's decision to approve these variances.After Region 4 determined that North
Carolina had not gathered the information needed to determine whether variances
were warranted, it developed a list of items to address in future study plans for the
next permit cycle. In our opinion, the region should have noted the deficiencies in
North Carolina's fact sheets and public notices in previous permit renewal
packages. Incomplete fact sheets and public notices limit the public's ability to
make informed judgments about,comment on,or dispute these decisions by
North Carolina. These facilities will continue discharging heated waters as
allowed under their current permits and thermal variances for the next 4 years.
Consequently, Region 4 and the public will not know whether these discharges
are harming the DIP of the waterbodies until the permits come up again for
renewal.
Recommendations
We recommend that the Regional Administrator, Region 4:
I. Enforce the management controls of the NPDES MOA.
2. Verify that thermal variances are protective of a balanced, indigenous
population.
3. Verify that permit fact sheets and public notices comply with federal
regulations.
Agency Response and OIG Comment
I he region agreed with our recommendations.We agree that their actions meet
the intent of the recommendations.
11-P-0221 7

Status of Recommendations and
Potential Monetary Benefits
POTENTIAL MONETARY
RECOMMENDATiOUS BENEFITS fin$OUOs)
Planned
Rec, Page Completion Claimed Agreed-To
No. No. Subject Status', Action Official Date Amon Amcunt
1 7 :nfarce the management controls of ire NPCES 0 Regional Admin stratcr,
VOA. Reg on L
2 7 Veit/that there verances are protective of a 0 Regional Adm n atra c4
babrcec,-ndigenau papal atcn. Reg cn
3 7 Verity that permit tact sheets and putsl c notices 0 Regional Admin straxr,
comply with teceral regulations. Realm 4
•
0=reccrnmen labor openwith agreed-to corrective actions pending
C s recommeication Is dosed w th ell agreed-b act cos competed
11=recommencalion is undecided with resoluticn elfax in proy:ess
11-P-0221 8

r
•
Appendix A
List of Reviewed Permits
Facility permit documentation reviewed as part of Hotline complaint:
1. Asheville Coal Power Plant(NC0000396)
2. Belews Creek Steam Station (NC0024406)
3. Blue Ridge Paper Products Canton Mill (NC0000272)
4. Buck Steam Station (NC0004774)
5. Cliffside Steam Station (NC0005088)
6. Marshall Steam Station (NC0004987)
7. McGuire Nuclear Power Plant(NC0024392)
11-P-0221

Appendix B
Agency Comments
MEMORANDUM
SUBJECT: Draft Report:
Oversight of North Carolina's Renewals of Thermal Variances
010 Project No. 2011-0003
FROM: Gwendolyn Keyes Fleming
Regional Administrator.
TO: Wade Najjum
Assistant Inspector General for Program Evaluation
This is in response to your memorandum to me dated April 5, 2011, regarding an Office
of Inspector General (010)draft report on several final National Pollutant Discharge Elimination
System(NPDES) permits issued by the North Carolina Department of Natural Resources
(NCDNR). The permits contain provisions for thermal variances to comply with requirements of
Section 316(a)of the Clean Water Act(CWA).
Below are recommendations in the draft report with our responses:
I. OIG Recommendation: Enforce the management controls of the NPDES Memorandum
of Agreement.
EPA Response: We concur. Section IV.J3.3. of EPA Region 4's Memorandum of Agreement
(MOA)with NCDNR states,"EPA may provide to the State written comments on,
recommendations with respect to, or objections to the issuance of the draft permit."
Regional review of a particular draft NPDES permit, or type of permit, is a discretionary
oversight activity. It is also within the Region's discretion to object,comment,or choose not
to comment to a draft NPDES permit. Based on information available at the time we
reviewed the draft permits,we implemented the MOA by providing comments on and
recommendations with respect to proposed 316(a)thermal variances. We recommended that
during the next permit term facilities should collect targeted data that would assist the State
in determining if the thermal component of the effluents was allowing maintenance of a
balanced and indigenous population(BIP)of fish, shellfish and wildlife in the receiving
water body near the discharge point. This data will he more detailed than the data previously
used by the State in its determination of compliance with CWA Section 316(a).
11-P-0221 10

2. OIG Recommendation: Verify that thermal variances are protective of a balanced,
indigenous population.
,EPA Response: We concur. By the end of each permit's term,as directed by EPA in our
comment letters on the draft permits,the State will have specific data to determine if the
receiving water body is able to maintain a BIP. EPA will review the data and verify that the
thermal variances are protective of a balanced and indigenous population.
3. Verify that permit fact sheets and public notices comply with federal regulations.
EPA Response: We concur. In accordance with the MOA, EPA may review draft permits,or
in the limited circumstances described in Section IV.B.6.,proposed permits. In the future,
EPA will review draft permits with CWA 316(a)variances to ensure that the permit fact
sheets and public notices contain the necessary elements and language to adequately inform
the public of thermal discharges in relationship demonstrating the maintenance of a BIP.
Thank you for the opportunity to comment on this draft report. Please contact Jim
Giattina, Director of the Water Protection Division at [e-mail] or at
[phone], if you have any questions about our response.
11-P-0221 11

Appendix C
Distribution
Office of the Administrator
Regional Administrator,Region 4
Assistant Administrator for Water
Agency Followup Official(the CFO)
Agency Followup Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for External Affairs and Environmental Education
Director,Office of Regional Operations
Audit Followup Coordinator, Region 4
Director,Water Protection Division, Region 4
11-P-0221 12

I �
RECE9\JEDIDENRI®WR
MAY 18 2018
Water Resources
on
Permitting
Attachment D
Allen NPDES Comments
May 5, 2015

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 22 SOUTH PACK SQUARE.SUITE 700 Facsimile 828-258-2024
ASHEVILLE.NC 28801-3494
May 5, 2015
VIA EMAIL AND U.S.MAIL
Mr. S.Jay Zimmerman,Acting Director
DENR Division of Water Resources
1617 Mail Service Center
Raleigh,N.C.,27699-1617
[e-mail]
[e-mail]
Re: Draft NPDES Permit—Allen Steam Station,#NC0004979
Dear Mr.Zimmerman:
On behalf of the Catawba Riverkeeper Foundation,Inc. (the"Foundation"),the
Waterkeeper Alliance and the Sierra Club,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 Environment and Natural Resources("DENR"), Division
of Water Resources("DWR"),which purports to allow an unlimited number of unspecified and
uncontrolled point source discharges from
the Allen Steam Station
("Allen")coal ash lagoons
owned and operated by Duke Energy Carolinas LLC ("Duke")into Lake Wylie("the Lake")on
the Catawba River. Each of the undersigned organizations have many members who rely on the
quality of Lake Wylie and the Catawba River for their livelihoods and additional members who
regularly fish, swim,boat and regularly recreate on these waters.
As set forth below,the proposed permit violates the Clean Water Act("CWA")because
it purports to allow uncontrolled leakage from this wastewater treatment facility rather than
requiring the leaks to be stopped. For this and other deficiencies highlighted below,the draft
permit must be withdrawn,substantially revised and reissued for public comment.
I. The Proposed Permit Violates North Carolina's Groundwater Rules
A. DENR Must Impose Conditions To Prevent Further Groundwater
Contamination
Because of groundwater contamination at or beyond the compliance boundary at Allen,
the state groundwater rules prohibit DENR from issuing the proposed NPDES permit for the
Allen coal ash lagoons.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington,DC
100%recycled paper

r '
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.A.C.2L .0103(b)(2). This prohibition applies to the Allen
permit. The draft permit states on its face that it is issued under the authority of"North Carolina
General State 143-215.1." The Allen coal ash lagoons are qualifying"disposal systems"for
purposes of the Groundwater Rule,with a compliance boundaries set by the rule. 15A N.C.A.C.
2L.0107. Because DENR issues this permit under authority delegated by the Environmental
Management Commission(15A NCAC 02A.0105),this prohibition applies to DENR as well.
There is no question that the disposal system authorized by this permit will result in a
violation of a groundwater quality standard at a designated compliance boundary. It already has.
There is an extensive history of documented groundwater contamination at the compliance
boundary at Allen. Indeed,DENR has ordered Duke Energy to undertake assessment activities
and filed an enforcement case in Superior Court nearly two years ago seeking injunctive relief to
abate groundwater contamination at the site. In its enforcement case DENR alleged,under oath,
that exceedances of the groundwater standards for nickel,iron,and manganese,uncorrected,
"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." Complaint¶¶ 117-119, 197.
Duke's own monitoring well data indicates additional exceedances for boron. Revised
Groundwater Assessment Plan at 6. These exceedances have been documented since at least
2011. A 2014 drinking water supply well and receptor survey map indicates a potential plume of
groundwater contamination stretching beyond Duke's compliance boundary,past its property
boundary and onto private property. Allen Drinking Water Receptor Survey,Fig. 1. The
existence of this plume is supported by the monitoring data recently released indicating the
presence of coal-ash constituents in 51 private water supply wells surrounding the Allen plant
mentioned below. On this record,DENR cannot reissue a permit for a failing wastewater
treatment system without imposing new conditions to correct this long track record of
groundwater contamination.
Similarly,the Groundwater Rule bars the EMC(and DENR 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.A.C.2L.0103(b)(3). Here too,no prognostication is required
to determine if the coal ash ponds will violate this prohibition. The Allen coal ash ponds have
already caused an impairment of existing groundwater uses. In February 2015 DENR began
collecting groundwater samples from residential wells within 1,000 feet of Allen ash ponds. On
April 16,2015,DENR advised 51 homeowners neighboring the Allen plant 96%of the homes
sampled—to stopdrinkingor cookingwith water from their residential wells because they have
p
2

been contaminated with constituents characteristic of coal ash including vanadium and
hexavalent chromium.
Groundwater violations at the compliance boundary for Allen and impairment of
neighboring groundwater uses will only continue,in violation the Groundwater Rule,if the ash is
allowed to remain in the unlined lagoons where it will continue leaching pollutants into the
groundwater. Because this disposal system has already resulted in violations of groundwater
quality standards and will continue to do so,DENR cannot issue the proposed NPDES permit
without imposing conditions sufficient to ensure these violations will cease. Requiring final
closure of the Allen ash impoundments and removal of the ash to safe,dry lined storage is the
only assured solution to arresting ongoing violations of groundwater quality standards at the
compliance boundary.
B. DENR Must Define Compliance and Review Boundaries and Require
P q
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 NCAC 02L.0107(c)
(emphasis added). The draft permit as distributed to the public for comment includes no map
designating a compliance boundary for the Allen facility. This is a critical omission.
Prior maps issued by DENR for Allen have drawn the compliance boundary for the
facility so that it extends underneath Lake Wylie. But DENR does not have the discretion to
draw a compliance boundary past the property boundary of Duke Energy. 15 NCAC 02L
.0107(a),(b). Because Lake Wylie was formed by the impoundment of the Catawba River, a
navigable river held in public trust by the state of North Carolina for the benefit of all citizens,
Duke Energy does not own the lake bed underneath Lake Wylie, and the compliance boundary
must be drawn to stop at the lake shore. Furthermore,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." N.C.G.S. § 143-215.1. Even if Duke Energy wants to assert that it
owns title to the lakebed of the Lake Wylie,Duke Energy cannot claim,and DENR cannot, as a
matter of federal law treat a water of the United States(Lake Wylie) as part of a waste disposal
site.
This requirement of law,that compliance boundaries cannot extend underneath adjacent
jurisdictional waters,is also common sense. As DENR has acknowledged, groundwater
routinely discharges into surface water bodies and most surface waters serve as groundwater
divides. This makes it impossible to measure compliance with groundwater standards under a
surface water body because the groundwater constantly interacts with the surface water. For that
reason,Duke Energy's Groundwater Assessment Plan for the Allen site proposes to assess
3

compliance with it's the compliance boundary,as previously drawn by DENR,by"modeling"
the contamination in groundwater under Lake Wylie. DENR must specify a compliance
boundary for the Allen plant that complies with the requirements of North Carolina law and
facilitates credible measurement of groundwater compliance.1 To meet that task,the compliance
boundary cannot be beneath a surface water body.
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 rule 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."Draft Permit Condition A(14). Historically,DENR
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 NCAC 02L .0104(b),(d)(emphasis added). 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).
II. The Draft Permits Sets Deficient Technology-Based Effluent Limits
Any NPDES permit issued by DENR for the Allen facility must set effluent limits reflecting
the best available technology to eliminate discharges whenthat core objective of the Clean Water
Act is achievable for a given waste stream. At the Allen plant,the best available technology is
zero discharge for all major waste streams involving its ash impoundments,including the
contaminated seeps that the draft permit proposes to authorize into perpetuity. Ultimately,the
guaranteed solution to stopping seeps is permanently and responsibly closing these failing
wastewater treatment ponds and removing residual coal ash to a lined landfill.
A. DENR Failed to Require Zero Liquid Discharge as the BAT for Waste Streams
at the Allen Plant
The Clean Water Act requires this NPDES permit to impose technology-based effluent
limits("TBELs")reflecting"the minimum level of control that must be imposed in a permit."
40 C.F.R. § 125.3. For the pollutants at issue in the Allen permit,TBELs must reflect the
pollution reduction achievable by"application of the best available technology economically
1 Furthermore,DENR must designate a review boundary for the Allen plant. Every NPDES permitted facilities with
a compliance boundary also has a review boundary which is defined as the point"midway between a waste
boundary and a compliance boundary at which groundwater monitoring is required." 15 NCAC 02L.0102(20).
4

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)(2XA).
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 Allen permit,including FGD waste,bottom ash transport water, ash pond
discharge, and ash pond seeps. "Where promulgated effluent limitations guidelines only apply to
certain aspects of the discharger's operation,or to certain pollutants,other aspects or activities
are subject to regulation on a case-by-case basis in order to carry out the provisions of the Act."
40 C.F.R. § 125.3(c)(3). As a result,DWR must use"best professional judgment"("BPJ")to
establish BAT for waste streams not subject to the 1982 effluent limitation guidelines. 33 U.S.C.
§ 1342(a)(1);40 C.F.R. § 125.3(a). When applying BPJ"[i]ndividual judgments []take the place
of uniform national guidelines,but the technology-based standard remains the same." Texas Oil
& Gas Ass'n v. U.S. E.P.A., 161 F.3d 923, 929 (5th Cir. 1998). In other words,the DWR must
operate within strict sideboards when identifying BAT based on BPJ. 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 211 .0118.
There are two steps in determining BAT. First,the permit writer must assess what
technologies are"available." Second,of the available technologies the permit writer must assess
which are economically achievable. The technology that obtains the highest reduction in
pollutants and is also economically achievable is the BAT.
The initial determination under BAT,technological availability, is"based on the
performance of the single best-performing plant in an industrial field." Chem. Mfrs.Ass'n 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").
Further, "Congress contemplated that EPA might use technology from other industries to
establish the [BAT]." 780 F.2d at 453 (emphasis added). International facilities can also be used
to define BAT. Am. Frozen Food Inst. v. Train, 539 F.2d 107, 132(D.C. Cir. 1976). Even pilot
studies and laboratory studies can be used to establish BAT;the technology need not be in
5

r
commercial use to be considered available. See American Paper Inst. v. Train, 543 F.2d 328,
353 (D.C. Cir. 1976).
After completing an expansive technological availability analysis,DWR must determine
if the technology is economically achievable,i.e.,whether it can"be reasonably borne by the
industry." Waterkeeper Alliance,Inc. v. U.S. E.P.A., 399 F.3d 486, 516(2d Cir.2005)(citations
omitted). For a facility-specific BPJ determination, a technology is economically achievable if it
can be reasonably borne by the facility owner;in this case,Duke Energy.
Here,DWR inexplicably limited its.consideration of technological and economic
availability to two facilities in the same industry, owned by the same parent company,located
within 125 miles of the Allen plant. Allen Fact Sheet at 4. This level of analysis is falls short of
DWR's obligations under the Clean Water Act. An adequate review of existing technologies
reveals multiple technologies which achieve zero liquid discharge for waste streams from FGD
systems,bottom ash transport water,2 and ash pond discharge. The costs of these technologies
can reasonably be borne by Duke Energy,the nation's largest utility. Because the Clean Water
Act mandates that BAT limits eliminate a discharge if,"on the basis of information available . .
such elimination is technologically and economically achievable,"zero liquid discharge must be
incorporated as the BAT for these waste streams. 33 U.S.C. § 1311(b)(2XA).
1) Zero Liquid Discharge is BAT for FGD Wastewater
A zero-liquid discharge limit for FGD wastewater is the BAT for the Allen Plant. It
cannot reasonably be disputed that technology is available which would achieve zero liquid
discharge for FGD wastewaters. EPA Region 1 recently found zero liquid discharge to be the
BAT for the Merrimack Station in New Hampshire because"technologies are capable of
eliminating the direct discharge of pollutants." Merrimack Station Revised NPDES Permit No.
NH0001465 Fact Sheet at XX. The specific technology,physical-chemical treatment plus vapor
compression evaporation("VCE") and crystallizer systems,is also being used to achieve zero
liquid discharge at Kansas City Power&Light's latan plant and several Italian plants. Id. One
purveyor of mechanical evaporation technology,Veolia Water Solutions and Technologies,
describes it as"a simple and economical approach to [zero liquid discharge]."3 To quote EPA:
these systems"are the best performing treatment systems for the purpose of reducing discharges
of pollutants to the Nation's waters. In other words,these systems make the greatest`. . .further
progress toward the national goal of eliminating the discharge of all pollutants.'33 USC
1311(b)(2)(A)." Revised NPDES Permit No.NH0001465 Fact Sheet at 17(emphasis in
original).
2 Duke is already meeting its zero liquid discharge BAT requirements for fly ash transport water through utilization
of a dry fly ash handling system.
3 http://www.epa.gov/region1/npdes/merrimackstation/pdfs/ar/AR1020.pdf
6

With technology is available,zero liquid discharge is the BAT for the Allen plant if the
cost of such technology can reasonably be borne by Duke. Here,we know that it can because
Duke has already installed zero liquid discharge technology at its Mayo plant and that plant
remains economically viable. That is,Duke installed zero liquid discharge technology at the
Mayo plant at a predicted cost of$120,000,000 despite that fact that,at the time,Duke did not
consider zero liquid discharge to be the BAT. Mayo NPDES No.NC00038377 Fact Sheet at 2.
2) Zero Liquid Discharge is BAT for bottom ash transport water
Similarly,the technology necessary for zero liquid discharge of bottom ash transport
water is also indisputably available. Over 30%of coal-fired power plants and petroleum coke-
fired power plants already utilize these technologies4 and 83% of coal-fired units built in the last
twenty years installed dry bottom ash handling systems. 78 Fed.Reg. 34470. In considering
new effluent limitation guidelines for steam electric power generators,EPA concluded that"all
Tants. . . are capable p p of installing and operating dry handling or close-loop systems for bottom
ash for bottom ash transport water." Id.
Duke Energy has installed zero liquid discharge bottom ash handling systems at least at
two plants in its North Carolina fleet,Cliffside and Mayo. These plants have remained
economically viable with dry bottom ash handling systems in operation. EPA estimated that
installation of zero liquid discharge bottom ash handling systems would be particularly
economically feasible for plants with a generating capacity over 400 MW,such as Allen. 78
Fed. Reg. 34470. Moreover,the Allen plant is required to convert to dry bottom ash handling
within the term of this NPDES permit—by 2019. N.C.G.S. § 130A-309.210(f). Because zero
liquid discharge technology is available,is economically achievable, and will soon be required
by the State of North Carolina, it must be the BAT for bottom ash transport water.
3) Zero Liquid Discharge is BAT for ash pond discharge
For decades, the ash management system at the Allen plant has operated by sluicing wet
ash to ponds for long-term storage. In the ponds, ash is removed from the ash transport water
through settling. The removed ash,now no longer a part of the wastewater treatment system,is
then stored in the ponds while the ash transport water is discharged to Lake Wylie. Technology-
based effluent limitations apply to the ash transport water being discharged to Lake Wylie as the
result of applying TBELs to particular waste streams (FGD,bottom ash transport water, etc),but
TBELs also apply to separate discharges from the removed ash. To wit,"[t]echnology-based
effluent limitations shall be established. . . 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." 40 C.F.R. § 125.3(g)(emphasis added).
4 For a list of available technologies see 78 Fed.Reg.34453-34454.
7

As applied to ash ponds,this regulatory system contemplates two different TBELs: one for
the permitted outfall and another for the discharge of pollutants iemoved in the course of
treatment or control of wastewaters. There is no question that discharges from removed
substance via seeps or other means,which are themselves contaminated with residual coal ash
that has settled out of the impoundment,are subject to TBELS and an independent BAT analysis
like any other waste stream. Indeed,DWR has recognized that TBELs must be set for
discharges from the"removed substances"through seeps(Outfalls 010 and 011)as well as for
the historically permitted outfall(Outfall 002).
We note that DWR's own fact sheet acknowledges that"[t]he CWA NPDES permitting
program does not normally envision permitting of uncontrolled releases from treatment systems;
such releases are difficult to monitor and control,and it is difficult to accurately predict their
impact on water quality. Releases of this nature would typically be addressed through an
enforcement action requiring their elimination rather than permitting."Draft Allen Fact Sheet at
2.Nonetheless,DWR takes the position that seeps at Duke Energy's Allen facility somehow get
preferential treatment as a"unique circumstance where the occurrence of the seeps is attributable
to an original pond design that will require long-term action to fully address." Fact Sheet at 2.
Regardless,"unique circumstances"do not excuse DWR from correctly calculating BAT
and applying TBELs. Just as DWR failed to complete the proper analysis for determining BAT
as applied to FGD waste and bottom ash transport water,DWR failed to follow the proper
procedure in calculating the BAT for discharges from"pollutants removed in the course of
treatment or control of wastewaters"at the Allen plant,resulting in improper TBELs. The
technology to achieve zero liquid discharge from removed substances in ash basins is readily
available,economically achievable,and is currently being implemented at ash basins across
South Carolina and at Duke Energy's own facilities in North Carolina—closure of the ponds and
removal of the ash to dry,lined storage to ensure it does not continue to be a source of unabated
and polluted seepage.Moreover,the fact sheet concedes that zero discharge of seeps is
achievable and ultimately required,but fails to set TBELS or a schedule for implementation
reflecting that technological solution.
a. Closure of these failing wastewater treatment plants and removal of the coal ash
is,of course,technologically achievable and therefore required by law.
As explained above,the BAT for internal waste streams currently discharging to the ash
ponds is zero liquid discharge. DENR and EPA both require wastewater treatment facilities that
are no longer in service to be closed pursuant to an approved closure plan that addresses the fate
of residual sludge removed in the wastewater treatment process. The fact sheet acknowledges
that additional"action to close or otherwise address coal ash impoundments and their threats to
surface waters and groundwater"is necessary. Fact Sheet at 3.
8

Moreover, even if the Allen plant had a continuing need for an onsite wastewater
treatment facility,the current wastewater treatment facility is failing and releasing
"uncontrolled"seeps into nearby surface waters,and cannot be reauthorized. Wastewater
treatment systems operate by retaining pollutants removed by its designed treatment system and
then discharging treated water. By allowing uncontrolled and undesigned leaks and flows from
the walls, sides,bottom, and dam of this supposed wastewater treatment facility,DENR would
be permitting a wastewater treatment facility that is fundamentally defective. Such authorization
defeats the very purpose of the waste treatment system authorized by the permit—the treatment
and removal of pollutants from industrial wastewater. Uncontrolled seeps, and the removed
wastewater pollutants they contain,bypass the controlled release of treated and monitored
wastewater via the riser system at the permitted discharge.
Because the Allen plant has no continuing legitimate need for these wastewater treatment
ponds and cannot obtain reauthorization for these failing wastewater treatment facilities,DENR
must mandate closure of the ponds and elimination of contaminated seeps through the best
available technology—removing the source of that contamination,the residual coal ash,to dry
lined storage. DENR does not need to look far for proof that this solution is achievable.
Multiple examples are found right here in the Carolinas.
In South Carolina, SCE&G had unpermitted seeps and groundwater contamination at its
Wateree Station facility on the portion of the Catawba River called the Wateree River. Today,
SCE&G is in the midst of removing all its coal ash from unlined lagoons at Wateree Station to
safe,dry,lined storage in a landfill away from the Wateree River. SCE&G has already removed
approximately 600,000 tons of coal ash from its Wateree facility. In filings with the South
Carolina Public Service Commission, SCE&G has publicly stated its commitment to clean up the
coal ash at its other facilities in South Carolina as well.
Similarly, South Carolina's Public Service Authority utility,known as Santee Cooper,
has also committed to excavate its coal ash from unlined lagoons and store it in dry,lined
landfills or recycle it for concrete. Santee Cooper's Executive Vice President of Corporate
Services described the removal and recycling of the unlined coal ash from the lagoons as"cost-
effective"and a"triple win"for the utility's customers,the environment, and the local economy.
At last report, Santee Cooper has already removed 164,000 tons from its Grainger Generating
Station in Conway, SC, where unlined coal ash at a retired facility had contaminated the
groundwater and adjacent wetlands with arsenic and other pollutants. Santee Cooper has
removed 120,000 tons from its Jefferies Generating Station in Moncks Corner, SC. And it will
begin removing the coal ash from its Winyah Generating Station in Georgetown, SC,in May of
this year.
Also, in April 2015,conservation groups signed an agreement with Duke Energy for
Duke to remove all the coal ash—more than three million tons—from its W.S. Lee facility on the
Saluda River in Anderson County, South Carolina. Attachment A. Duke will remove all the
9

coal ash to dry,lined storage away from the river,including the ash from two leaking lagoons
and in an ash storage area near the lagoons. In September 2014,the South Carolina Department
of Health and Environmental Control entered into a consent enforcement agreement with Duke
Energy in which Duke was required to remove coal ash from two other storage areas on the
Saluda River's banks at the Lee facility. Attachment B.
Duke Energy's other coal ash site in South Carolina, the H.B.Robinson facility,stores
4.2 million tons of coal ash on the shore of Lake Robinson and Black Creek in Darlington
County,SC. This site has serious groundwater contamination and a history of low-level
radioactive waste being disposed of in the unlined coal ash basin. On April 30,2015,after
months of public pressure from conservation groups calling for a cleanup,Duke publicly
committed to excavating all the coal ash at Robinson and storing it in a dry,lined landfill on site.
Sammy Fretwell,"Duke to clean up toxin-riddled waste pond in Hartsville," The State(Apr. 30,
2015).
Finally, Duke Energy has agreed to remove ash at four facilities in North Carolina:
Asheville,Dan River,Riverbend,and Sutton. These facilities are plainly implementing a
technology which results in the elimination of discharges—the ultimate goal under the Clean
Water Act. 33 U.S.C. § 1311(b)(2)(A).
The technology to achieve zero liquid discharge from the ash basins is not only available,
but is economically achievable. SCE&G and Santee Cooper have both stated that ash removal
has not affected the economic viability of its plants or had any effect on customer rates. In fact,
Santee Cooper has described the decision to remove ash as a win-win-win that is good for its
customers.5 Ash removal projects in North Carolina, such as at Duke Energy's Asheville plant
where 3 million tons of ash have already been removed,also demonstrate the economic benefit,
more than"achievability,"of removing stored ash from ponds. Zero liquid discharge is both
technologically and economically achievable and represents BAT for discharges from the
removed substances in the Allen coal ash ponds.And it eliminates the continuing seepage into
groundwater and surface waters,as well as the risk of a catastrophic dam failure or spill, such as
Duke Energy's Dan River spill in February 2014
b. The permit acknowledged that zero discharge is attainable for seeps but fails to
impose corresponding TBELS or any schedule of completion.
Not only has DENR failed to account for the proven solution of removing coal ash,the fact
sheet itself concedes the existence of a zero discharge technological solution available to Duke
Energy to address coal ash seeps but fails to impose TBELs based on that technology.
5 http://www.wcnc.com/story/news/politics/2014/07/04/11127148/
10

The Fact Sheet acknowledgesthat"[r]eleases of this nature would typically be addressed
through an enforcement action requiring their elimination. . . ." Fact Sheet at 2. The Fact
Sheet further recognizes the availability of a zero discharge solution—collection and"rerouting
the discharge" and"discontinuing the discharge." Condition A(21)n.l. Nonetheless,DENR
requires no action from Duke Energy to complete those measures, attempting to defer instead to
the eventual completion of a state process under the Coal Ash Management Act. This approach
is fraught with problems. Fundamentally,a deferred an unenforceable promise of future action
under a separate state statute does not satisfy the requirements of the Clean Water Act.
First, CAMA is not a part of the North Carolina's federally approved delegated CWA
program, cannot pre-empt CWA requirements,and indeed has not been approved by EPA as part
of the delegated CWA authority for review and issuance of NPDES permitsDENR has an
obligation under federal law to put in place a Clean Water Act permit that complies with and
carries out the requirements of the Clean Water Act,regardless of any state law
provisions. Indeed, EPA can withdraw North Carolina's authority to manage its own CIean
Water Act program if the State fails to follow federal regulations or if the "State legislature . . .
strik[es] down or limit[s]"a state agency's authority to implement the Clean Water Act consistent
with federal law. 40 C.F.R. § 123.63(a)(1)(i-ii).Recognizing this,the General Assembly was
clear that the requirements of Coal Ash Management Act are"in addition to any other
requirements for identifying discharges,""for the assessment of discharges," or"for corrective
action tgo prevent unpermitted discharges"from coal ash impoundments. N.C.G.S. § 1320A-
309.212(a)(1), (b), (c). Therefore,the Allen permit,which is issued under the Clean Water Act,
must require the cleanup of these primitive coal ash storage sites and the removal of the ash to
safe,dry,lined storage—apart from any requirements of CAMA.
Second,while the fact sheet is explicit that permitting illegal seeps is"an interim measure"
pending implementation of the BAT,the draft permit does not require implementation of the
ultimate solution. The Clean Water Act requires the ultimate solution. DENR must require
compliance with the discharge limits achievable by the implementation of the best available
technology now.
EPA regulations unambiguously prohibit the use of compliance schedules6 to comply with
BAT requirements. 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 C.F.R. § 122.47(a)(1)(emphasis
added).Here,the relevant statutory deadlines have passed for the permitted wastestreams. See
33 U.S.C. § 1311(b)(2). "[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." EPA Permit Writers Manual, Section p. 9-8 (2010);see
6 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)...." 40 C.F.R. § 122.2.
11

also EPA Permit Writers Manual, Section 9.1.3 p. 148(1996). Thus,EPA regulations prohibit
use of compliance schedules to comply with attainable BAT limits for seeps.
Even if DENR did have the authority to delay compliance with limits attainable through
an acknowledged BAT,the draft permit does not impose a valid a compliance schedule. The
Fact Sheet notes that installation of a BAT solution for seeps would require construction and
time to implement,but sets no time limits for implementation of those requirements. A
compliance schedule must impose"anenforceable sequence of interim requirements"leading to
Clean Water Act compliance. 40 C.F.R. § 122.2 (emphasis added). Under a valid compliance
schedule,the time between interim dates must not exceed one year. Id.The Draft Permit requires
no concrete steps towards ultimate achievement of the zero discharge BAT standard
acknowledged by the draft permit as attainable for seep discharges.
III. The TBELs set by the Permit are Deficient Even Under DENR's Faulty
Determination of the BAT For Ash Ponds.
Without explanation,DENR recognizes that technology-based effluent limits set by the
permit for mercury,arsenic,selenium and nitrate from the coal ash seeps can be met through a
variety of technologies including"installation of the treatments system,rerouting the discharge
to the existing treatments system,or discontinuing the discharge." Condition A(21)n.1.As
explained above,the proven solution of closing ash ponds and removing ash,together with
DENR's acknowledgement that other zero discharge options exist for the seep waste stream,
confirm that zero discharge is the BAT for seeps. Nonetheless,DENR appears to have set
TBELs for seeps based on the lesser technological option of installing a wastewater treatment
system. However, even taking DENR's deficient approach to the BAT at face value,DENR has
failed to set TBELs achievable by implementation of a wastewater treatment system for the seep
waste streams from"Outfall 10"and"Outfall 11"and the primary discharge from Outfall 2.
First,the permit sets technology-based effluent limitations(TBELs)for only one metal,
Mercury, from Outfall 2. But DENR offers no reliable scientific basis for using,mercury as the
sole proxy for the mobility of all heavy metals in the coal ash discharge. Coal ash contains
different concentrations of various contaminants depending on the origin of the coal, and each of
these contaminants may behave very differently depending upon the site-specific
conditions. Trace metals can form complexes with ions(such as chloride or sulfate)or dissolved
organic carbon. Some metals form complexes much more readily than others. These complexes
change the speciation of the metal in the water and thus can greatly impact its mobility(typically
making it more mobile). Mobility of different metals can also be significantly impacted by pH
or other site-specific factors.
DENR,instead, defends this assumption with the statement in the new draft ELG's for
power plants that four parameters(total Arsenic,Total Mercury,Total Selenium,and Nitrate)are
12

acceptable proxy parameters for all other metals in the coal ash impoundment waste stream. But
even if those four parameters could collectively stand in for all other contaminates at all power
plants,DENR sets TBEL limits for only one of them for out Outfall 2—Mercury. This omission
is glaring in that DENR is clearly aware that the ash pond has the potential to discharge any of
the four metals it identifies as`proxies"(and many more)because it purports to set WQBELs for
those same parameters from Outfalls 10 and 11. If the ash pond discharges a pollutant, it must
be analyzed under the Clean Water Act and a TBEL assigned that ensures that it is treated
through the best available technology. Although DENR sets limits for all four proxy metals
nominated by EPA at the FGD internal Outfall 5,the draft permit ignores the contribution of
bottom ash and other waste streams to the arsenic, selenium and nitrate/nitrite loading in the ash
basins. DENR must set independent TBELs for Outfall 2, "Outfall 10,"and"Outfall 11."
Thus,relying on mercury as the only TBEL metal means significant contaminants in the
Allen seep discharges may not be controlled. Metals such as cadmium,nickel,and zinc are
typically present in coal ash in greater concentrations than mercury—often orders of magnitude
greater. Accordingly,TBELs need to be added for thallium,vanadium,cadmium,nickel,and
zinc. Data from groundwater monitoring wells surrounding the ash ponds as well as from nearby
residential drinking water wells reveal the presence of unsafe levels of vanadium and nickel
attributable to the Allen ash ponds. DWR's own monitoring data referenced as justification for
establishing maximum allowable parameter concentrations from seeps confirms that the ponds
are discharging cadmium,nickel, and zinc at far greater quantities than the TBEL set for
mercury. Draft Permit at 14.
The only other TBELs set by the permit for Outfall 2 are for Copper and Iron,but those
limits apply only"during a chemical metal cleaning." Condition A.(2)n.1. Because metal
cleaning wastes currently discharge to the very large volume of wastewater in the ash pond,there
is no reliable justification for limiting the application of TBELs to the specific days when metal
cleaning is occurring, without accounting for the time required for the metal cleaning waste
stream to assimilate into the contents of the ash basin and eventually impact the permitted
discharge at Outfall 2 and the new"Outfall 10"and"Outfall 11."Seep sampling collected by the
Catawba Riverkeeper Foundation as well as seep sampling performed by DENR confirms that
copper and iron are present in the ash ponds and being discharge on a regular basis even when
metal cleaning wastes are not actively being discharge to the ponds. EPA's Draft Merrimack
Station NPDES permit set TBELs for many more pollutants than DENR did for Allen's Outfall
002. EPA,Determination of Technology-Based Effluent Limits for the Flue Gas Desulfurization
Wastewater at Merrimack Station in Bow,New Hampshire (Sept.23,2011),at 48-49.
Attachment C. In addition to the four pollutants DENR included for Outfall 002,EPA included
TBELs for cadmium, chromium, copper,lead,manganese,zinc, chlorides, and total dissolved
solids. Technology-based numerical effluent limitations for these substances should be added to
13

f
the Allen permit. Additionally,the Allen permit should include TBELs for boron and sulfates
which Duke Energy has asserted are typical of contamination in the ash pond.?
As explained above,the BAT for waste streams into and out of the ash ponds is zero
discharge. But even if zero discharge could be defensibly ignored,the draft permit must be
revised to set responsible TBELs for the ash pond discharges from Outfall 2,"Outfall 10,"and
"Outfall 11." Secondary treatment options for ash pond discharge are now established and
would be the BAT even if it were true that zero discharge is not available. At the Merrimack
Station,EPA correctly found that the BAT for FGD wastewater was zero liquid discharge. But
in processing the permit application,EPA developed arsenic,chromium, copper,mercury,
selenium and zinc TBELs for Merrimack Station's FGD wastewater based on"statistical analysis
of self-monitoring data. . .at Duke Energy's Allen and Belews Creek Stations." Attachment C
at 32. In its draft permit,DENR states that it based its TBELs on the"95th percentile of the
effluent data"discharging over five years from Duke Energy's Allen,Marshall,and Belews
Creek facilities. Fact Sheet at 4(emphasis added). If data from Allen and Belews Creek was
sufficient to develop TBELS for Merrimack,it is.more than sufficient to develop TBELs here.
Nonetheless,the draft permit sets no TBEL limits at all for metals in Outfall 2,aside from
mercury, and authorizes discharges at concentrations that are significantly higher than the
originally proposed Merrimack TBELs—again,even though these are supposedly based on the
same facilities analyzed by EPA for that permit,including Allen and Belews Creek. DENR
appears not to have performed the same rigorous TBEL analysis that EPA did,nor does it appear
to have looked to more sophisticated permits and treatment technologies like the Merrimack
facility.
For example,the arsenic limit in these permits is higher than the draft Merrimack permit.
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. In the draft
Merrimack permit,where EPA analyzed the treatment technology at Allen and Belews Creek
and based its limits on what could be achieved, EPA set the monthly average at 8 ug/L.
Attachment C at 39. But the Allen draft permit sets no limit for arsenic from Outfall 2 and sets a
monthly limit for internal Outfall 5 and"Outfalls 10 and 11"of 10.5 ug/L. Similarly,EPA's
draft Merrimack permit limit for selenium set the monthly average at 10 ug/L, versus 13.6 ug/L
in the Allen permit for internal Outfall 5 and"Outfalls 10 and 11"(and no limit for Outfall 2);
and the draft Merrimack permit set a selenium daily maximum of 19 ug/L,versus 25.5 ug/L in
the Allen permit for internal Outfall 5 and"Outfalls 10 and 11" (and no limit for Outfall 2).
Attachment C at 47.
7 See http://www.charlotteobserver.com/news/locallarticle 19153437.html.
14

For Mercury,EPA noted that it could have set the monthly average limit at 22 ng/L in the
draft Merrimack permit,versus 47 ng/L for Allen,but then noted that the Merrimack facility
actually incorporates an additional"polishing"step that allowed the technology based limit for
mercury in the Merrimack permit to be set at just 14 ng/L. Attachment C at 44. If this limit is
achievable in New Hampshire, it should be achievable in North Carolina,as well,regardless of
the requirements of the TMDL.
IV. The Draft Permit Authorizes Uncontrolled and Unidentifiable Leaks from Lagoons
In Violation of the Clean Water Act,Defeats the Purpose of the Permit in Violation
of the Clean Water Act, and Violates the Public Notice and Comment and Other
Requirements of the Clean Water Act
The proposed permit(section A.21)purports to authorize any leaking streams of
contaminated coal ash wastewater discharging from the Allen lagoons into Lake Wylie that may
emerge anywhere along the facility's property line,now or in the future—without being
identified and characterized in the NPDES application or the permit itself.
A. The Proposed Permit Violates the CWA's Prohibition on Unpermitted Point
Source Discharges
Each of these streams of contaminated water is a point source discharge to surface waters
of the United States. Thus,the proposed permit purports to authorize unspecified point source
discharges,in violation of the CWA,33 U.S.C. § 1311(a).
Under the CWA, Velvety identifiable point that emits pollution is a point source which
must be authorized by a NPDES permit. . . ." U.S. v. Tom-Kat Dev., Inc., 614 F. Supp. 613,614
(D. Alaska 1985)(citing 40 C.F.R. § 122.1(b)(1). Accord U.S. v. Earth Sciences,Inc., 599 F.2d
368, 373 (10th Cir. 1979);Legal Envtl Assistance Found.,Inc. v.Hodel, 586 F. Supp. 1163, 1168
(E.D.Tenn. 1984); U.S. v. Saint Bernard Parish, 589 F. Supp. 617(E.D. La. 1984)). The
"NPDES program 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).
Rather than complying with this straightforward requirement of the CWA,the proposed
permit instead declares that a fictional"Outfall 010"would encompass any and all"seeps
entering the river from the upstream edge of permittee's property to the downstream property
boundary . . .as if entering at one location." This approach is impermissible under the Clean
Water Act.
The proposed permit attempts to limit the total amount of seep discharge and maximum
allowable pollutant concentrations—but those limits are totally impracticable. The Fact Sheet
itself acknowledges that the seeps are"difficult to monitor and control,and it is difficult to
accurately predict their impact on water quality." Indeed,Duke Energy is unable even to
complete a competent application for an NDPES permit for these future wastestreams because it
15

lacks the most fundamental information required by Form 2C—the Outfall locations and flow
characteristics.See Permit Writer's Handbook 4.3.5. And even if these requirements could be
put into effect—which is highly unlikely,as DENR acknowledges—they could not remedy this
fundamental flaw in the permit's approach to the polluted leaks.
The proposed permit's blanket authorization of the seeps violates the most basic
principles of the Clean Water Act. DENR itself acknowledges in the 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." Fact Sheet at 2
(emphasis added).DENR's statements are even more striking in light of the fact an enforcement
action filed by DENR is currently pending against Duke Energy for those very same seeps at
Allen.
Finally, DENR's proposal to issue a CWA permit that attempts to authorize an unlined
impoundment to continue leaking into surface and groundwater water is plainly inconsistent with
performance standards under the new federal CCR rule promulgated by EPA under RCRA
(published in the federal register April 20,2015). Under that rule,existing unlined
impoundments that have documented violations of groundwater standards are subject to closure
pursuant to a suite of federal requirements. E.g., 40 C.F.R. § 257.101. In contrast,DENR's
proposal to try to"legalize"the leaking impoundments is at odds with the federal CCR rule—
which will not even allow these types of leaky impoundments to continue to operate as is. Like
the CWA requirements for BAT and zero discharge,so too complimentary federal requirements
for CCR storage do not allow leaky unlined impoundments that have contaminated groundwater
to stay in operation.
B. The Proposed Permit's Blanket Authorization of the Seeps Violates the
CWA's Public Participation Requirements
As well,this arrangement 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,33 U.S.C. § 1342(b). A new undesigned and
undesignated flow of polluted water may spring from this supposed wastewater treatment facility
at any time. The permit asserts that these newly identified seeps"will not be considered as new
outfalls."Condition A(21). It further promises that new seeps will be"administratively added"
to the permit. That new outfall will not have been the subject of the public notice,comment, and
hearing requirements, or any other requirements of the Clean Water Act. Instead,this permit
purports to authorize those discharges and outfalls in advance,without any of the process and
protections required by the Clean Water Act. As drafted,this permit is evades the Clean Water
Act entirely for these new and undescribed outfalls and discharges.
16

But it is beyond the authority of DENR to authorize new point source discharges without
proceeding through the 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,none of which condone the administrative addition of a new
NPDES outfall. 40 U.S.C. § 122.63. Ultimately, this promise of a permit shield and
administrative amendment of Duke Energy's permit has the effect of bypassing public comment,
EPA oversight and judicial review for the life of this permit for a poorly defined and monitored
(waste stream). This scheme is inconsistent with the requirements of the Clean Water Act.
V. The Draft Permit Fails to Set Protective Water Quality Based Effluent Limits
A. Duke Energy Must Comply with Water Quality Standards at all Points in Lake
Wylie Because the Draft Permit Fails to Specify a Mixing Zone.
In prior communications with Duke Energy regarding pollution discharge and thermal
impact to Lake Wylie caused by Duke Energy's effluent,DENR has referenced a"mixing zone"
below Duke Energy's discharge,but neither the prior nor the current permit authorizes a mixing
zone for this facility. Under North Carolina law a mixing zone must be"defined by the
division." 15A NCAC 02B .0204. The mixing zone must 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. Id.
Federal law likewise requires mixing zones to be defined to a discrete area designed to allow
adequate mixing of pollutants and protect over all water quality. See generally 2010 Permit
Writer's Manual Chapter 6. The draft permit not only fails to define a mixing zone but provides
no basis from which to reliably determine whether water quality standards and permit conditions
are being met outside the undefined mixing zone. A related deficiency is that the fact sheet fails
to explain how the mixing zone is calculated to comply with the minimum requirements of the
Clean Water Act and state law.
B. Water Quality Based Effluent Limits for Ash Pond Seeps are Inadequate
The method by which many of the effluent limitations for the seeps were set appears to
be arbitrary and capricious. The draft permit(at A.17) states that"[t]he maximum allowable
parameter concentration in Table 1 is determined by multiplying the highest baseline seep
concentration levels by 10." The Fact Sheet states that the reasonable potential analysis(RPA)
analyzed the highest co ce
yzconcentration for eacharameter chosen from the 12 identified seeps,ps, and it
also states that there was no reasonable potential to violate water quality standards or EPA
criteria. But there is no information in the permit about what"baseline seep concentration
levels"were used in this flawed approach. Thus,there is no way for the public to evaluate how
17

these limits were established because they are presented in a vacuum. The Fact Sheet's
explanation of the reasonable potential analysis(p. 4) states only that the "highest concentration
for each constituent was chosen from one of the 12 seeps"and analyzed for potential water
quality violations.
Furthermore,the effluent limits and RPA for the draft limit are inadequate because they
assume that the waste stream is being diluted by the full flow of the Catawba River. To the
contrary,the Catawba frequently remains nearly stagnant as its flow is regulated by Duke
Energy. In those instances,discharged effluent accumulates in the water surrounding the Allen
plant rather than is carried downstream.
The fact sheet acknowledges that the bodies of water between the ash ponds and Lake
Wylie are jurisdictional waters protected by state law and the federal Clean Water Act. For
example,the fact sheet suggests that action to remediate the unchecked and illegal seep
discharges from the Allen impoundments would delay ultimate closure of the impoundments
because work to collect and reroute the discharges would require construction which`would
require 401 permits,which will create a substantial delay with ash pond decommissioning. . . ."
Of course,401 certification would be required from the state of North Carolina,only if, as is the
case here,such construction activities would be impacting jurisdictional waters. While the state
seems genuinely concerned about assuring that those jurisdictional waters receive full Clean
Water Act protections from any construction activities needed to arrest illegal discharges,it has
failed entirely to apply Clean Water Act procedures required to protect those receiving waters
from the impacts of illegal pollution.
In this respect,DENR's approach to these seeps reflects the application submitted by
Duke Energy which argues in its"Allen Steam Station Surface Water and Seep Monitoring
August and September 2014"in the permit file,that the seeps analyzed indicate"that there is
little potential for Allen Steam Station to influence water quality in Lake Wylie"but ignore the
impact on water quality within receiving water bodies between the impoundment and Lake
Wylie. Indeed the map submitted by Duke Energy with its Surface Water Sampling Report
(Figure 2)to identify surface water sampling locations in Lake Wylie indicates a blue-line
jurisdictional stream buried beneath the ash pond and emerging from its toe.
DENR must conduct a full jurisdictional analysis of waters flowing into Lake Wylie from
Duke Energy's property to determine if any are jurisdictional waters that must meet water quality
standards and conduct an RPA of the impact illegal seeps from the toe of Duke Energy's coal ash
impoundments may have on those waters.
C. Duke Energy's 316(a)Demonstration is Inadequate to Justify a Variance from
North Carolina's Water Quality Standard for Temperature.
18

Every NPDES permit must impose"any more stringent limitation"necessary to meet
"water quality standards,"including state standards for temperature. 33 U.S.C. § 1311(b)(1)(C).
Section 316(a)of the Clean Water Act provides narrow authority for a variance from water
quality standards for temperature,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 Clean Water Act 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"). Absent a
meritorious demonstration,the applicant must comply with water quality standards.
Duke Energy's demonstration is deficient for failure to analyze the cumulative shift in
aquatic populations in Lake Wylie over time. The demonstration as drafted speaks only to the
change in the most recent sample period but fails to demonstrate by reference to an unimpacted
water body that the cumulative effect of its thermal discharge shave not caused a shift in the
population of the lake. The impacts of past discharges on the aquatic community cannot be
ignored in a§ 316(a) demonstration. In particular, shifts in species composition and other
adverse impacts attributable to past discharges cannot be disregarded. The balanced,indigenous
population of fish, shellfish and wildlife contemplated by the Act is the population that exists
absent the impacts of the applicant's thermal discharge. See 40 C.F.R. § 125.71(c)(balanced
indigenous community excludes"species whose presence or abundance is attributable to the
introduction of pollutants that will be eliminated by compliance"with water quality standards);
40 C.F.R. § 125.73(a)(demonstration must consider"the cumulative impact of its thermal
discharge together with all other significant impacts on the species affected");In re Dominion
Energy Brayton Point, 12 E.A.D. at 557("[T]he population under consideration is not
necessarily just the population currently inhabiting the water body but a population that may
have been present but for the appreciable harm.")
EPA's Environmental Appeals Board("EAB")has ruled on the exact question of
whether a shift to a thermally tolerant species composition is acceptable and found that such a
19

shift contravened the very purposes of the Clean Water Act. In Public Service Company of
Indiana, 1 E.A.D. 590,28(1979)the EAB found that:
[Section] 316(a)speaks only of"a balanced,indigenous population.". . .
[A]ccording to [applicant],the indefinite article"a"cannot be"tortured"into the
definite phrase"the balance which would exist in the absence of heat." However,
these arguments . . .would render the general goal of the Act--to"restore and
maintain the chemical,physical,and biological integrity of the Nation's waters"--
a dead letter. Section 316(a)must. . .be read in a manner which is consistent
with the Act's general purposes. Consequently, § 316(a) cannot be read to mean
that a balanced indigenous population is maintained where the species
composition,for example,shifts . . . from thermally sensitive to thermally
tolerant species. Such shifts are at war with the notion of"restoring"and
"maintaining"the biological integrity of the Nation's waters.
More recently,the EAB again emphasized that a § 316(a) demonstration may not"ignore
the fact that the abundance of certain species . . .has been altered over the past several decades"
because such an interpretation would be"inconsistent with the regulations,the legislative history
of section 316(a),the purpose of the CWA,and prior case law." In Re Dominion Energy
Brayton Point, 12 E.A.D.at 558.
In June of 2010,the EPA highlighted a track records of deficiency related to Duke's
316(a)demonstrations for the Allen plant including a failure to identify impacted wildlife,
identify the full scope of the thermal plume,break down fish surveys between heat sensitive and
intolerant species, analyze present data to clearly demonstrate that affected communities have
not shifted to primarily heat tolerant assemblages, and demonstrate that community assemblages
in the heat affected portions of the receiving water are not significantly different from affected
communities with regard to the number of nonindigenous species. Duke Energy's BIP
demonstrations continue to fail to meet most of these requirements. In particular,Duke Energy
analyzed its cumulative impacts by reference to a reach of the Catawba River between the Allen
plant and the Catawba Nuclear Station,a heavily impacted body of water. Furthermore,the BIP
demonstration submitted by Duke Energy for Allen demonstrates an increase in the pollution
tolerant species in affected reaches of the Catawba in the past four years over prior assessments.
D. The EMC Cannot Issue a 316(a)Thermal Variance
In any event,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
20

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). In North Carolina,that"body or board"is the
Environmental Management Commission. N.C. Gen. Stat. § 143-215.1. Because the
Environmental Management Commission as a whole cannot comply with the prohibition on
receiving a significant portion of income from permit holders or applicants,permitting authority
rests in a NPDES Committee,which must include at least five non-conflicted members of the
EMC. 15A NCAC.0107(a). The current EMC does not have five non-conflicted members and
is thus unable to issue the permit.
The EMC appears well aware of this problem. A March 2015 spreadsheet of EMC
committees has not only transformed the"NPDES Committee"required under state law(15A
N.C.Admin. Code 2A.0107)into the"NPDES Permit Appeals Committee" (signifying a change
from approving permits to only dealing with them on appeal)but does not list a single member
save one ex officio member appointed to all committees. A review of past committee agendas
reveals that there has only been one meeting of the purported NPDES committee since March
2012.
There are currently 14 individuals serving on the North Carolina EMC. Three
Commissioners(Tedder,Martin,Elam)operate consulting firms and four are lawyers or
engineers(Carter, Craven,Puette,Dawson)with practices that deal with environmental
regulatory issues such as NPDES permitting. Four commissioners appear to work for or have
retired from companies that either hold NPDES permits or rely on companies that do(Carrol,
Anderson,Ferrell,Wilsey). Three Commissioners remain who may not receive a"significant
portion of income directly or indirectly from permit holders or applicants for a permit"though
that too is unclear. Even if those Commissioners were not conflicted out of participating on the
EMC's NPDES Committee,the committee still lacks two required members.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.
VI. The Proposed Permit Violates the Clean Water Act's Anti-Backsliding Provisions.
The draft permit would allow Duke Energy to operate a leaking wastewater treatment
system. 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. DENR itself describes its
approach to the seeps as allowing"uncontrolled releases." Fact Sheet at 3. Thus,the proposed
permit would allow Duke Energy to avoid even the minimal treatment technology in place for its
currently permitted outfalls.
This change in policy stands in sharp conflict with the provisions of the existing permit
and,perplexingly,the draft permit itself. Both the draft permit and the existing permit include an
21

important standard condition,known as the Removed Substances provisionat Part II.C.6,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."(emphasis added)
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
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.
DENR itself has cited Duke Energy for violating this provision by allowing liquid
discharges of removed substances to enter 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,DENR 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)."
In the context of the Allen permit,the removed substances provision is also the
implementation of a required permit component under the implementing regulations of the Clean
Water Act. Those regulations 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."
40 C.F.R. § 125.3(g). Under the prior permit,DENR did not set individual TBELs for
contaminants in seeps from the ash basin but rather took the only responsible step of treating
zero liquid discharge, as implemented through the removed substances provision,as the BAT for
contaminated seeps from a coal ash impoundment. That is,consistent with the requirement to
set TBELs for pollutants removed by the wastewater treatment ash ponds,the prior permit
prohibited any discharge of removed substances to waters of the United States.
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 Allen coal ash settling lagoons. In the Matter of 539 Alaska Placer Miners,
Nos. 1085-06-14-402C & 1087-08-03-402C, 1990 WL 324284 at*8 (EPA 1990)(inclusion of
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")(Doc. 26-9).
22

Parts of the draft permit purporting to authorize leaks would abandon this sensible,
longstanding and recently enforced prohibition on discharge of removed substances and the
recognition that zero liquid discharge is the acceptable TBEL for the seep wastestream,which is
itself the product of a failing wastewater treatment system. That change in course violates the
Clean Water Act.
The Clean Water Act's NPDES permitting program is structured around progressive
improvements in pollution control technology. The requirement of Best Available Technology
("BAT')is predicated on the concept that as treatment technology improves,it will be
incorporated into National Pollutant Discharge Elimination System permits in order 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 CWA includes anti-backsliding requirements to ensure that the limits
and conditions imposed in new or modified NPDES permits for a facility are at least as stringent
as those in previous permits. 33 U.S.C. § 1342(o);40 C.F.R. § 122.44(1)(I)("[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. . . .").
The CWA's anti-backsliding requirements apply to all NPDES permit provisions
including effluent limits,best management practices and other conditions. 40 C.F.R. §
122.44(1)(1);In the Matter of Star-Kist Caribe,Inc., Petitioner, 2 E.A.D. 758 at*3 (E.P.A. Mar.
8, 1989)(emphasis added). EPA,NPDES Permit Writers' Manual Chapter 7, § 7.2.2,p. 7-4
(Sept. 2010),available at
http://water.epa.gov/polwaste/npdes/basics/upload/pwm_chapt_07.pd£
The proposed permit would,for the first time,abandon zero liquid discharge as the TBEL
for discharges of removed substances from Allen and instead issue a permit to`uncontrolled
releases"of seeps contaminated with coal ash constituents removed by the settling basin. For
this reason,the proposed permit violates the CWA's anti-backsliding requirements. Among
other things,the proposed permit would for the first time: (1)allow uncontrolled and undesigned
releases from the coal ash lagoons; (2)permit a set of undesigned and uncontrolled releases as a
single"outran"; (3)allow uncontrolled and undesigned releases from a permitted wastewater
treatment facility; (4) allow a permitted wastewater treatment facility to leak polluted water from
the facility into State waters and navigable waters; (5)allow the facility to release discharges that
are prohibited by conditions in its current permit; and(6)create a new meaning and permitted
category of"outfall"to allow uncontrolled,undesigned,and future but-as-of-yet-determined
leaks and flows of polluted water.
The reversal under the current permit from the prior TBEL for removed substances
violates the anti-backsliding provisions of the Clean Water Act and its implementing regulations.
DENR cannot now retreat from the progress made towards improving water quality in Lake
23

Wylie under prior permits by relaxing the TBEL standards for removed substances that it is
required to implement in every permit. For that reason,the anti-backsliding provision of the
Clean Water Act prohibits DENR from issuing a permit to Duke Energy for seeps of removed
substances for which any liquid discharge is prohibited under Duke Energy's current permit.
VII. The Draft Permit Sets Inadequate Monitoring Requirements for Seeps.
The permit must require more frequent monitoring of seeps. The draft permit requires
monthly monitoring of the seeps only for the first year;thereafter,monitoring is required only
twice a year. This is inadequate.
First,the flow and levels of contaminants in the seeps are likely to change from week to
week, so two snapshots per year would make it impossible to accurately assess the amount of
pollutants discharging into Lake Wylie. While DENR has candidly admitted it would be
difficult to accurately monitor the seeps even under the best of circumstances, two samples per
year virtually guarantees the permit's effluent limits and flow requirements will not be enforced.
Second,this arrangement makes it easy for the polluter to cherry-pick two sampling
points per year with low flows to avoid violations.
Third,it makes identifying new seeps far less likely.
Finally,this schedule falls short of the requirements of the Clean Water Act.
Environmental Protection Agency("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 demonstrates or suggests that
monthly,or even daily,monitoring of seep discharges is impractical.
For all these reasons,monitoring every two weeks should be required until the lagoons
are dewatered and removal begins.
VIII. Conclusion
The draft permit is inconsistent with the requirements of North Carolina and federal law
for these reasons described above. For these reasons,we ask that the permit be withdrawn,
rewritten,and reissued for the public to comment on an NPDES permit that protects water
quality and the public interest.
Sincerely,
ustin DJ Gerken
Amelia Y.Burnette
24

Patrick Hunter
Southern Environmental Law Center
22 South Pack Square, Suite 700
Asheville,NC 28801
828-258-2023
[e-mail]
[e-mail]
[e-mail]
Counsel for
Catawba Riverkeeper Foundation,
Sam Perkins,Catawba Riverkeeper®
421 Minuet Lane Suite#205
Charlotte,NC 28217
[e-mail]
Waterkeeper Alliance
Peter Harrison
19 West Hargett Street, Suite 602b
Raleigh NC 27601
pharrison®waterkeeper.org
Sierra Club
Bridget Lee
50 F Street,NW, 8th Floor
Washington,DC 20001
[e-mail]
cc:
Gina McCarthy,EPA Administrator
Heather McTeer Toney,Regional Administrator, Region 4
25

RECEIVEDI DENRIDWR
MAY 182018
Water Resources
perm►ttin9 Section
Attachment E
Allen NPDES Comments
December 7, 2016

•
1 SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 22 SOUTH PACK SQUARE,SUITE 700 Facsimile 828-258-2024
ASHEVILLE.NC 28801-3494
December 7, 2016
VIA EMAIL AND U.S. MAIL
Wastewater Permitting
Attn: Allen Steam Station Permit'
1617 Mail Service Center
Raleigh,N.C., 27699-1617
[e-mail]
[e-mail],[e-mail]2
Re: Draft NPDES Permit—Allen Steam Station,#NC0004979
Dear Mr. Zimmerman:
On behalf of the Catawba Riverkeeper Foundation, Sierra Club, and the Waterkeeper
Alliance, 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 Allen Steam Station ("Allen"). Each of the undersigned
organizations have members who rely on the quality of the Catawba River and Lake Wylie for
their livelihoods and who regularly fish, swim, boat and recreate on these waters. For years,
these groups have advocated through administrative processes,the public arena, and in court for
proper cleanup and remediation of Duke Energy's unlined, leaking coal ash impoundments.
We submitted comments on behalf of these organizations on the original draft NPDES
permit on May 5, 2015,which are attached and incorporated herein. Below we address the
revised permitting approach.
Duke Energy's two unlined surface impoundments hold back over 17 million tons of coal
ash and span 293 acres,wedged on a peninsula between the Catawba River(Lake Wylie) and the
South Fork of the Catawba River,ne r the Belmont community.3 EPA's recently published
Effluent Limitation Guidelines ("EL ")rightly recognizes such "surface impoundments . . . are
largely ineffective at controlling disc arges of toxic pollutants and nutrients." 80 Fed. Reg.
67838, 67840 (Nov. 3, 2015). This is true at Allen. Portions of Allen's original ash
' The Public Notice of October 28,2016,directs comments to the attention of"Attn:Dan River Permit,"which we
assume is an error.Available at http://deq.nc.gov/about/divisions/water-resources/water-resources-hot-topics/dwr-
coal-ash-regulation/duke-energy-npdes-permits-for-facil ities-with-coal-ash-ponds/duke-energy-npdes-
modi fications-renewals
2 The Public Notice directs email comments to publiccommentsna,ncdenr.gov,but we have also elected to submit
copies to the NCDEQ email address published for other permit renewals under consideration by DEQ.
3 See Duke Energy Ash Basin Metrics,https://www.duke-energy.com/ /media/pdfs/our-company/ash-
management/duke-energy-ash-metrics.pdf?la=en(Sept.25,2016).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
100%recycled paper

•
vf
impoundment were constructed over historic streams to the Catawba River, and the ash sits deep
in the ground,polluting groundwater, streams,wetlands, and the Catawba River. Duke Energy's
plan is to simply leave the ash in place beside the river,where its own studies show the ash will
remain submerged below the groundwater table and will continue to leach pollutants 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 Catawba
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),¶ 197.4 Over three years have passed since DEQ
asked the court to enter a permanent injunction requiring Duke to "abate the violations" at
Allen's leaky ash basins in the enforcement suit. CRF and WKA are also a party to this suit.
To this day, Duke Energy's massive coal ash basins at the Allen plant continue to leak
pollutants into groundwater, streams, and the Catawba River. Indeed,within the last two months
alone, CRF and WKA have discovered yet another area of seepage discharging pollutants, like
boron and cobalt, below the ash basins. Instead of requiring compliance with the CWA, DEQ
repeats an error made in other recent proposed permits at Duke Energy's other facilities, and
attempts to legitimate the antiquated ash basins with a 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 have unlimited discretion to simply give
Duke a license to pollute as it wishes, but rather is constrained to meet certain minimum
requirements of the Clean Water Act("CWA").5
The draft permit, as currently proposed,violates the CWA and state law by:
• Converting natural streams and wetlands into Duke Energy's private"Effluent
Channels"to convey pollution;
• Issuing a permit to pollute where surface water quality standards are already exceeded
and where waters are classified as protected water supply 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 selenium, arsenic,mercury and
many more, by flouting the requirement to set technology-based effluent limitations
for discharged pollutants;
4 DEQ's complaint is available for download at https://deq.nc.gov/news/hot-topics/coal-ash-nc/coal-ash-
enforcement.
5 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 to stop Duke
Energy from co-opting the Catawba River into its wastewater treatment; and
• Allowing Duke Energy to discharge heated effluent that alters the aquatic community
towards heat tolerant species,without requiring Duke Energy to identify the extent of
its thermal plume or to demonstrate a balanced, indigenous population will be
protected.
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 Allen permit reflects 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 Catawba River. DEQ tries in this draft permit to legitimate most seepage through a paper
exercise. Like the earlier draft permit,the revised permit does not achieve compliance with the
law and does not require Duke Energy to stop its polluted seepage.
Duke Energy reported 14 seeps from the ash basins at Allen.6 NCDEQ, Fact Sheet for
NPDES Permit Development,NPDES No.NC0004979, at 3 [hereinafter"Permit Fact Sheet"].
Pollutants like boron, aluminum, copper, lead,mercury, iron, manganese,thallium,vanadium,
and total dissolved solids escape through seeps around the Allen plant, according to Duke
Energy's own reports. Sampling by CRF and WKA of seeps flowing towards the Catawba River
has similarly revealed numerous pollutants escaping from Duke Energy's coal ash basins.
DEQ proposes to turn the six of these seeps into "effluent channels,"even if the channels
themselves are streams or located within wetlands. See Permit Fact Sheet at 8-9 & Table 8. The
sum effect of DEQ's proposal is to authorize a wastewater treatment facility(the ash basins)to
discharge through numerous leaks and seeps (streams), rather than require them to contain the
coal ash contamination they were ostensibly designed to hold. As to the remaining seeps,DEQ
essentially proposes to ignore them altogether, despite its confirmation that all but one are still
flowing.' 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. Wastewater treatment systems operate by retaining pollutants removed by its designed
treatment system, like settling in the basins, and then discharging treated water. If the basins are
allowed to leak from their sides and bottom,this system is circumvented.
6 The seep coordinates in the permit A.(30.)and fact page 3-4,table 1,appear to have errors. For example,S-3 and
S-4 are erroneously referred to in the same location,and S-8B is in the water body. This must be corrected and
included in any revised permit for comment.
7 S-9 reportedly has been grouted and no longer flows.Permit Fact Sheet at 9.
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 the Allen
plant should be removed and safely disposed of in dry, lined storage.
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 Allen permit is to label them"seep
outfalls"and then identify them as"effluent channels"which flow into "receiving streams." In
fact,DEQ decides the six seeps it views in need of a permit are, coincidentally, also "effluent
channels"to convey Duke Energy's polluted discharge. Permit Fact Sheet at 3-4;Allen Steam
Station,Draft NPDES Permit,Permit No. 0004979, Conditions A. (13)to A. (18) [hereinafter
"Draft NPDES Permit"]. These seep outfalls,however, include waters that appear jurisdictional
and are ineligible for designations as effluent channels.
Duke Energy has identified S-2, S-3 and S-4 each as a"Tributary towards Lake Wylie,"
in its own Discharge Assessment Plan. See Duke Energy Carolinas, LLC, Discharge Assessment
Plan,Allen Steam Station, at Table 1 &Fig. 2 (April 2016) [hereinafter"DAP"].8 Seeps S-3 and
S-4 are downgradient from the active ash basin and coincide with streams visible on historical
topographic maps. See id. at Fig. 1; CAP I Fig. 2-2. Recent field surveys identified streams at
these locations, at locations coinciding with seep locations S-1 and S-2, as well as wetlands near
S-2, S-3, and S-49 (CAP I Figure 1-5). In fact,the permit writer for this permit described
wetlands he observed between the ash basin and the Catawba River that would be disturbed if
seeps were required to be pumped. Deposition of Sergei Chernikov (July 30, 2016) 113: 2-21;
115:3-5 ("The area adjacent to Lake Wylie is very wet. There are a lot of wetlands there").
Consistent with this, Duke Energy recently identified these streams and wetlands between the
ash basins and the Catawba River in its request for jurisdictional determination to the Army
Corps of Engineers. See Duke Energy Request for Jurisdictional Determination of Waters of the
U.S. (Sept. 23, 2015). 10
Duke Energy itself has conceded that the"Catawba River" and"all tributaries of the
Catawba River" are jurisdictional "waters of the United States." See Joint Factual Statement,
B Available at DEQ's website at the following link:https://ncdenr.s3.amazonaws.com/s3fs-
public/W ater%20Oualitv/NPDES%20Coal%20Ash/Seep%201D%20Plans/Anri116assessmentplans/Topo%20and%2
ODAP Allen 04.29.2016 FINAL.pdf
9 The seep coordinates in the permit A.,(30.)and fact page 3-4,table 1,appear to have errors. For example,S-3 and
S-4 are erroneously referred to in the same location,and S-8B is in the water body. This must be corrected and
included in any revised permit for comment.
10 No doubt DEQ is aware of this,as Duke Energy recently relayed that,although it is seeking to have seeps
designated effluent channels,it 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).
4

1
U.S. v. Duke Energy,No. 5:15-CR-62-H,No. 5:1 5-CR-67-H,No. 5:15-CR-68-H(E.D.N.C),¶
22 "
Seeps that are jurisdictional waters of the United States cannot themselves be permitted
as effluent channels to convey pollutants to other jurisdictional waters. 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 outfall.
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. This concept is not lost on DEQ. In the course of evaluating
whether to deem seeps effluent channels for the Belews Creek permit, DEQ rejected this effluent
channel designations for two "seeps" on the basis of"Jurisdictional Determinations or presence
of side streams." Belews Creek Steam Station Fact Sheet at 2 (October 12, 2016) (on file with
DEQ).
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 Discharges.
After proposing to authorize through a paper exercise most of the seeps identified by
Duke Energy, DEQ elects to simply ignore the remaining seeps reported by Duke Energy. North
"Available at https://www.duke-energy.com/ /media/34a6a9f07c39463d99cdd060358b782b.ashx.
5

V
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 justification for this
decision. Seeps S-5, S-6, S-7 are excluded from permit requirements because they may
discharge"underwater," and S-1 is excluded"based on the low concentration of the constituents
associated with coal ash." Permit Fact Sheet at 3. These statements show a fundamental
misunderstanding of the CWA.
There is no "underwater" exception for discharges, and Duke has successfully sampled
these seeps previously and found contaminants. See,e e.g.,Duke Energy Wastewater Application
Update (Mar. 29, 2016) Table A-4 (reporting elevated levels of boron, chloride, sulfate,
aluminum, and thallium in S-6). That these seeps may leak and discharge under the surface
elevation of the Catawba River does not relieve Duke Energy of its CWA obligations. Instead,
• this highlights the folly of trying to approve Duke Energy's leaky ash basins through a paper
exercise.
There is also no"low concentration"exception for discharges. 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 4th 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 pollutants do not get a free pass
under the CWA. DEQ cannot ignore pollutants discharging through S-1, like aluminum. See,
e.g., Duke Energy Wastewater Application.Update (Mar. 29, 2016)Table A-1.
In addition, DEQ ignores remaining seeps that may be discharging through short
hydrological connections from groundwater to surface water. S-8C, S-11, and S-12 are
dismissed as not discharging to waters of the US. Draft Permit Fact Sheet at 3. The location of
these seeps is unclear from the permit file—they are not included in 2016 permit updates by
Duke Energy, and a map is not provided with the fact sheet or permit. To the extent any of these
seeps connects with a waterbody via a short hydrological connection through groundwater, Duke
Energy cannot evade the CWA. As further discussed below,Duke Energy's own studies show
that the unlined basins are discharging pollutants through surface and groundwater into the
Catawba River. DEQ cannot ignore seeps that are point source discharges occurring via
groundwater.
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
6

weather and season,so four snapshots per year will make it impossible to accurately assess the
amount of pollutants discharging into the Catawba River, streams and adjacent wetlands. 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. That CRF and WKA discovered yet more seepage
discharging pollutants below the ash basins on the riverfront of the Catawba before this permit
even issued demonstrates not only the inevitability of new seepage, but also the need for tighter
oversight to make sure new seeps are reported and evaluated. This proposed permit has become
stale before it has even issued.
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
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.
Allen's ash basins are expected to spring new seeps and leaks—Duke Energy itself has
disclosed five new seeps between the original 2014 (describing nine seeps)and the 2016
application update (describing 14 seeps). The draft permit anticipates this growing problem by
trying to provide a path for Duke Energy to legitimate the inevitability of new seepages. Draft
Permit Condition A. (30). 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 anticipated new seeps.
Any permit modifications, of course, must comply with public notice and comment procedures,
and EPA oversight, under the CWA.12
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 55,000 cubic feet—over 400,000 gallons—per
day of contaminated groundwater is being discharged into the Catawba River from the coal ash
impoundments at Allen. Allen Cap 2,App. D at 3. Undoubtedly some of this contaminated
groundwater is also being discharged,to jurisdictional streams and wetlands between the ash
impoundment dams and the Catawba River, causing those tributaries to also violate North
Carolina surface water standards.
12 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
•

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 groundwater 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).
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 goundwaters 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.13 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 the Catawba 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(o); 40 C.F.R. § 122.44(1)(1) ("[W]hen a permit is renewed or reissued,
interim effluent limitations, standards or conditions must be at least as stringent as the final
effluent limitations, standards, or conditions in the previous permit . . . .").
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.
1313 See attached Amicus Brief,Hawaii Wildlife Fund v. County of Maui(No. 15-17447,9th Cir.),5.
8

3) The Department Cannot Issue a Permit to a Facility that is Violating Surface Water
Standards
Even if these high volumes of discharges of hydrologically connected groundwater were
eligible for permitting,they cannot in this instance because discharges from the Allen 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 .0118.
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.0112(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 ash ponds is currently causing violations of surface water standards
in blue line jurisdictional streams and seeps in the location of wetlands at the Allen plant, as
documented by Duke Energy's own studies. DEQ does not bother to ascertain compliance with
WQS, it appears, in the jurisdictional waters between the ash basins and the Catawba River.
Instead DEQ obscures the stream impacts by deeming the streams"effluent channels." Surface
water standards have been exceeded in seep samples, according to Duke Energy, for aluminum,
copper, lead, mercury, and total dissolved solids.See CAP 1 Table 2-5.2; March 29, 2016
NPDES permit update. In addition, contaminated groundwater entering the Catawba River from
the Allen plant exceeds Human Health and Water Supply standards for cobalt, and the Chronic
Aquatic Life standard for selenium, according Duke Energy's models.14
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 the Allen site, "aquatic receptors include fish, benthic
invertebrates, aquatic birds (represented by mallard duck and great blue heron), and aquatic
mammals (represented by muskrat and river otter)." See Allen CAP 2 at 33. The CAP 2
identified four exposure areas where pathways to the ecological receptors are probable. One of
those exposure areas is the area"between the ash basins and the Catawba River along the
shoreline"—the exact location of contaminated streams and wetlands at the Allen site, described
above. Id. at 33. In sum,waters of the United States contaminated by coal ash are found at one
of the most probable locations for contamination exposure to various"aquatic receptors."
To the extent hydrologically connected groundwater is causing violations in adjacent
surface waters,we are aware of no technology which would remedy ongoing violations and
"ensure compliance with applicable water quality standards,"except removal of the buried waste
14 Allen CAP I App.E at p.4,Table E-3(Ex.62).
9

source. Regardless, the discharge cannot be permitted as long as surface water quality standards
are violated in tributaries of the Catawba River.
4) The Draft Permit Violates Requirements Applicable to Surface Waters Classified as
Water Supply Areas
The Catawba River is classified as a WS-IV water. See Permit Fact Sheet at 1, 3.
Designated uses include "a source of water supply for drinking, culinary, or food-processing
purposes,"as well as class C uses. 15A N.C. Admin. Code 2B .0216(1). Conditions to meet this
use provide, "waters of this class are protected as water supplies" and"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 Catawba River and its 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 Allen plant is currently violating this standard. Unless the"source[] of water
pollution" is removed,the Allen 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; 2)the reasonable potential analysis is not performed for all jurisdictional
waters receiving polluted discharge; and 3)the limits do not assure compliance with water
quality standards.
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). The Fact Sheet describes a reasonable potential analysis (or RPA) conducted for certain
outfalls, and cross-references"spreadsheets" attached to the Fact Sheet,but no such spreadsheets
are attached to the Fact Sheet distributed for public comment. The narrative description itself,
however, indicates error in the RPA.
As mentioned previously,Duke Energy is discharging over 400,000 gallons per day of
contaminated groundwater into the Catawba River from the coal ash impoundments at Allen.
Allen Cap 2,App. D at 3. 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
(including cobalt and selenium,which Duke Energy's own model predicts are discharging
through groundwater).
The Department's reasonable potential analysis also appears to have incorrectly focused
its analysis only on a contravention of water quality standards in the Catawba River, without
10

assessing compliance in streams and wetlands. Part and parcel of this error was giving streams
the regulatory label "effluent channels" and treating them as pipes to convey pollutants. This
error is described above. So too, for purposes of determining reasonable potential to violate
surface water standards,the Department cannot ignore other jurisdictional waters of the United
States, including the tributaries and wetlands receiving polluted discharges before-eventual
discharge in the Catawba River. 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 and
wetlands coinciding with S-2, S-3, and S-4 See, e.g., CAP 1 Figs. 1-5; Discharge Assessment
Plan, Fig. 1. As described above, seep sampling already indicates ongoing impacts from the ash
basins. 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.
By incorrectly assuming the sole relevant point of compliance is the Catawba River, DEQ
also committed another error: it combined separate seep discharges for purposes of conducting
RPA. For example,the toe drain discharges at outfalls 103 and 104 were combined into a"Toe
Drains Flow." The other four seeps, which emerge at different points along the Catawba River,
were combined, as if they were discharging as a single fictional outfall. See Permit Fact Sheet at
6. No CWA authority for combining discharges to ascertain compliance with standards is
supplied, and we are aware of none. Of course,this serves to obscure the impacts of separate
discharges on individual streams and wetlands, as well as different parts of the Catawba River
that receive these discrete flows, which have contaminant profiles that vary.
In addition to errors that pervade the entire RPA analysis, specific to Outfall 002,the
condition related to net turbidity under normal operations and dewatering must be revised to
achieve water quality standards in the receiving stream. Note 5 to Conditions A.(2) and A.(3)
states that"net turbidity shall not exceed 50 NTU . . . measured by the difference between the
effluent turbidity and the background turbidity." First, because this is an impounded portion of
the Catawba River,the applicable standard is 25 NTU. 15A N.C.Admin. Code 2B .0211(21).
Second, allowing a net increase over background conditions in the effluent in an amount
equivalent to the maximum allowed in the standard does not at all assure water quality standards
will be met in the Catawba 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.
11

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 Allen plant. The CWA requires this
NPDES permit to include limits that reflect"the minimum level of control that must be imposed
in a permit." 40 C.F.R. § 125.3. In other words,the Allen 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").15
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 Allen permit.16 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 211 .0118.
A. Effluent Limitations Must be Added to the Draft Permit.
We commented that the prior permit failed to set TBELs for known priority pollutants
discharging through effluent outfalls. This error persists in the revised permit. In fact, rather
than improve the limits,the technology-based effluent limitation(TBEL)that was previously set
for one metal in the ash pond discharge as a supposed proxy for other metals, mercury,has now
been removed in the most recent draft permit.
15 When applying BPJ"[i]ndividual judgments[]take the place of uniform national guidelines,but the technology-
based standard remains the same." Texas Oil&Gas Ass'n v. U.S. E.P.A., 161 F.3d 923,929(5th Cir. 1998). In
other words,the DWR must operate within strict sideboards when identifying BAT based on BPJ.
16 EPA issued recently ELGs for the steam electric industry,80 Fed.Reg.67894,November 3,2015(the"ELGs"),
which are addressed below.
12

There are two steps DEQ must complete to determine BAT under these circumstances,
and to set appropriate TBELs. 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.17
DEQ must complete these steps and assign additional limits at outfalls, including for
Outfall 002—during normal operations and dewatering 1 8—as well as the seep outfalls (the seep
permitting approach is problematic for several additional reasons already discussed). 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 technology-based limit to these pollutants. This includes
selenium, arsenic, and mercury,which are only subject to monitoring requirements in the draft
permit. Metals such as cadmium, nickel, and zinc are typically present in coal ash, and DWR's
own monitoring data referenced as justification for establishing maximum allowable parameter
concentrations from seeps in prior Allen permit drafts confirms that the ponds are indeed
discharging cadmium, nickel, and zinc.
In addition, DEQ continues to limit the application of limits for copper and iron(Outfall
002),to only when"chemical metal cleaning wastewaters are being discharged." Condition A.(2)
n. 1. Because metal cleaning wastes currently discharge to the very large volume of wastewater
in the ash pond,there is no reliable justification for limiting the application of TBELs to the
specific times, without accounting for the time required for the metal cleaning waste stream to
assimilate into the contents of the ash basin and eventually impact the permitted discharge at
Outfall 2 and other ash pond discharges (like toe drains and seeps). If DEQ believes this limit is
being met at other times,then it is unclear why DEQ would be reluctant to expand its
applicability to all operating times. So too, DEQ has not explained how the technologies to
achieve these limits might be unavailable between chemical cleaning events.
B. The Department Has Not Justified Extended Deadlines for Compliance with New
Effluent Limitations.
As the Department recognizes 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).
"The initial determination under BAT,technological availability,is"based on the performance of the single best-
performing plant in an industrial field." Chem. Mfrs.Ass'n 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. US.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").
18 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

Despite the presumption that the rule is effective less than two years from now,
November 1, 2018,the Department proposes to grant Duke's request to continue dumping FGD
wastewater and wet-sluiced bottom ash for another four to six years (from Feb.28, 2021 up until
December 21, 2023). The compliance date selected, according to the permit,hinges on whether
Duke Energy decides to "retire the facility early," in which case the Duke Energy is allowed the
latest possible compliance date. See Draft NPDES Permit, Conditions A. (2) (bottom ash
transport water), A. (8.), (9.)n.4 (FGD wastewater). If the facility plans to retire early(by 2023),
the justification for a later compliance date is more apparent. However,materials submitted by
Duke Energy reference early retirement for certain units(1,2, and 3) as opposed to the facility.
See Duke Energy,NPDES Application Update (August 31,2016),Att. 4.
Assuming the permit term itself controls, in the event Duke Energy decides "not to retire
the facility early,"DEQ has not provided justification for its decision to allow four more years of
ongoing dumping of FGD wastewater and wet-sluiced bottom ash. So too, if Duke Energy
decides only to retire three units early,neither Duke Energy nor DEQ have explained the
necessity for four more years to make necessary operational changes to only the two remaining
. units.
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
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 documentation of its justification for additional time. Instead,DEQ
offers perfunctory,non-explanatory statements for the extension of compliance deadlines for
limits. For FGD wastewater, DEQ recites that"Duke is evaluating early retirement options for
the facility,"restates the dates requested by Duke Energy, and then offers DEQ "concurred"with
the compliance dates. Permit Fact Sheet at 6. For bottom ash,the fact sheet lacks even this
statement, offering only that"Duke is evaluating early retirement options" along with a
statement of Duke's requested dates,which then get incorporated into the permit. Id. at 1; Draft
Permit, conditions A.(2.) and A.(3). Merely reciting that Duke Energy requested the extension
beyond November 1, 2018, is not a"well-documented justification."
14

,
In addition,there is ample evidence that suggests, even allowing Duke Energy a lengthy
one-year extension to make a decision on early retirement by December 31, 2017, 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. 11.19 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 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 Allen 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 ren wal process." 80 Fed. Reg. at 67882-83 (emphasis added).
Moreover, EPA's final effluent limit for FGD and coal ash transport water were also contained
in the proposed rule issued June 7, 2 13—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. The FGD wastewater treatment
system at Allen, in particular, according to Duke Energy, already contains the technology EPA
19 Available at https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-RCRA-2013-0209-
0034&attachmentNumber=1&disposition=attachment&contentType=pdf.
15

used to develop BAT limits.See Duke Energy,NPDES Application Update (August 31, 2016),
Att. 4, Sec. C.Although Duke Energy contends that, with this, selenium concentrations at Allen
have been viewed by EPA as elevated based on 2014 and 2015 data, even this it attributes to
differences in sourcing coal.See id. Based on Duke Energy's experience with the existing FGD
wastewater system and anticipated need to make improvements,the long extension sought by
Duke Energy is unjustified.
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"13 month window . . .to gain the necessary
operational experience and fine-tune the system,"plus an additional month to stagger operational
activities with Marshall. See id. DEQ has offered no indication that it has questioned 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 over two 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 Allen,
the state groundwater rules prohibit DEQ from issuing the proposed NPDES permit for the Allen
coal ash lagoons. We raised this point and legal support for it in 2015 comments (attached), yet
DEQ persists in authorizing a disposal system that will result in violation of groundwater quality
standards at the compliance boundary. Since 2015, groundwater contamination has continued,
and the monitoring results have become more extensive, and the violations more certain. Duke
Energy's monitoring data, reported to the state, shows exceedances for boron,chromium, cobalt,
iron,manganese, sulfate,total dissolved solids, and vanadium in its compliance boundary
monitoring wells. The majority of these exceedances represent violations, even using Duke
Energy's own over-estimated background concentrations. See Douglas J. Cosler,Ph.D., P.E.,
Amended Expert Report, attached, at 13 (29 of the 44 Compliance Boundary exceedances were
greater than the proposed provisional background concentrations (PPBC)by HDR,which
exaggerate background levels (Apr. 13, 2016)). 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.
In addition to causing violations at the compliance boundary,Duke Energy's buried coal
ash waste also continues to place nearby residential wells at an increased risk of contamination
migrating beyond the compliance boundary. We commented previously that 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 to show its migrating
coal ash pollution is not a threat to nearby water supply wells (receptors). The data collected at
the Allen site, in sharp contrast to the artificially constrained modeling by Duke Energy's
16

consultant, confirm what common sense predicts: that residential wells pumping water out of the
ground near the Allen 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 20-21 (Apr. 13,
2016) (noting site data that demonstrates"the potential for off-site chemical migration is
underestimated by the models").
Because this disposal system has already resulted in violations of groundwater quality
standards and will remain a threat to public health and safety if the buried ash is left submerged
in the groundwater, DEQ cannot issue the proposed NPDES permit without imposing conditions
sufficient to ensure these violations will cease.
B. DEO 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
.0107(c) (emphasis added). Like the last draft permit,this draft permit also neglects to include a
map designating a compliance boundary for the Allen facility.
Duke Energy has previously misdrawn its compliance boundary to extend beneath the
riverbed, into the Catawba River/Lake Wylie. This would effectively co-opt Lake Wylie into
Duke Energy's wastewater treatment system. As one might surmise,this runs contrary to the
law. Yet, in its recent Topographic Map and Discharge Assessment Plan submitted to DEQ
pursuant to CAMA(dated April 29, 2016), Duke Energy continues to believe it can measure
compliance with groundwater standards out in Lake Wylie. See supra;see also Allen CAP 1,
Fig. 1-2. This not only defies commonsense but is legal error, for reasons we have previously
stated.
DEQ must specify a compliance boundary for the Allen plant that complies with the
requirements of North Carolina law and facilitates credible measurement of groundwater
compliance.20 To meet that task,the compliance boundary cannot be beneath a surface water
body.
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. (23.).
Historically, DEQ has required Duke Energy to monitor groundwater contamination only at the
compliance boundary.Attachment 1 to this draft permit does no better. The Groundwater Rule
itself requires more. All lands within a compliance boundary carry the Restricted Designation
under the Groundwater Rule; and all lands carrying the Restricted Designation must have a
"monitoring system sufficient to detect changes in groundwater quality within the RS designated
20 Furthermore,DEQ must designate a review boundary for the Allen plant.Every NPDES permitted facility with a
compliance boundary also has a review boundary which is defined as the point"midway between a waste boundary
and a compliance boundary at which groundwater monitoring is required." 15 NCAC 02L.0102(20).
17
1

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. As we have commented previously,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).21
This 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 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, including borings, has revealed that coal ash at Allen—the
"removed substance"—is sitting as much as 50 to 90 feet below the groundwater table, and its
own models predict up to 60 feet worth will remain submerged after dewatering. See Duke
Energy, Comprehensive Site Assessment Figures (geologic cross sections); Duke CAP 1,part I
(cap-in-place simulations); Cosler Am. Report at 26-27. 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.
21 Available on DEQ's website at http://portal.ncdenr.org/c/document_library/get_file?uuid=b32f8a66-541c-4cf5-
8ba6-03e381 edb2da&groupId=38364.
18

9) Duke Energy's 316(a) Demonstration is Inadequate to Justify a Variance from North
Carolina's Water Quality Standard for Temperature.
We commented previously that Duke Energy's demonstration under 316(a) of the CWA,
itself a necessary predicate to getting a variance from temperature limits,was insufficient to
support a variance. DEQ continues to rely on the faulty demonstration,however, in finding a
thermal variance is justified.
Section 316(a)of the Clean Water Act provides narrow authority for a variance.from
water quality standards for temperature, 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 Clean Water Act 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").
For the reasons we stated previously, Duke Energy has wholly failed to make the
necessary showing, and instead relies upon the shift over time towards thermally tolerant species
to support its continuing variance. Ignoring the unimpacted aquatic community that would be
there but for Duke's heated discharge, and instead relying on the already thermally tolerant
community present,would allow Duke Energy to reap the benefit of changes to the aquatic
community inflicted by thermal pollution in prior permit cycles. For this and other reasons, the
316(a) demonstration will not support a variance from water quality standard for temperature.
Even if the demonstration was sufficient to support a variance, neither the permit nor the
fact sheet illuminate the spatial extent of the variance. DEQ's own regulations allow departure
from the temperature limit in a"reasonable portion of the waterbody."See 15A N.C. Admin.
Code 02B .0208 (also requiring the thermal variance procedure under 316(a) of the CWA). As
our prior comments have pointed out, EPA has flagged Duke Energy's failure to identify the full
scope of the thermal plume among ongoing problems with Duke Energy's 316(a)
demonstrations.
19

The multiple deficiencies in Duke Energy's 3160 demonstrations would need to be
remedied before any valid thermal variance could issue. Absent a meritorious demonstration,
the applicant must comply with water quality standards.
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.
Sin ,
Thomas Lod ck
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
Catawba Riverkeeper Foundation,
Sam Perkins, Catawba Riverkeeper®
421 Minuet Lane Suite#205
Charlotte,NC 28217
[e-mail]
22 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

Waterkeeper Alliance
Peter Harrison
976 Martin Luther King Jr. Boulevard
Chapel Hill,NC 27514
[e-mail]
Sierra Club
Bridget Lee
50 F Street,NW, 8th Floor
Washington, DC 20001
[e-mail]
cc:
Gina McCarthy,EPA Administrator
Heather McTeer Toney, Regional Administrator,Region 4
•
21

i
RECEIVEDIDENRIDWR
MAY 18 2018
Water Resourcesn
Permitting
Attachment F
Supplemental Allen NPDES Comments
January 4, 2017

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 22 SOUTH PACK SQUARE,SUITE 700 Facsimile 828-258-2024
ASHEVILLE,NC 28801-3494
January 4, 2017
VIA EMAIL AND U.S. MAIL
Wastewater Permitting
Attn:Allen Steam Station Permit
1617 Mail Service Center
Raleigh,N.C., 27699-1617
[e-mail]
[e-mail],[e-mail]
Re: Draft NPDES Permit—Allen Steam Station,#NC0004979
Dear Mr. Zimmerman:
On behalf of the Catawba Riverkeeper Foundation, Sierra Club, and the Waterkeeper
Alliance,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 Allen Steam Station("Allen"). These supplement our original
comments of December 7, 2016, submitted within the initial comment period.
We have in two sets of extensive comments pointed out many, significant problems with
the Allen draft permit. Chief among those is the permitting approach to seepage and leaks from
the massive ash basins at Allen,which continue to this day to pollute groundwater, streams,
wetlands and the Catawba River. DEQ attempts to legitimate the antiquated ash basins at Allen
with a permitting scheme that would give a failing wastewater treatment system permission to
pollute through leaks and would convert streams and wetlands into disposal areas. In our earlier
comments, we reported that CRF and WKA discovered yet more seepage discharging pollutants
below the ash basins on the riverfront of the Catawba River,before this permit even issued. This
demonstrated not only the inevitability of new seepage,but also the need for tighter oversight to
make sure new seeps are reported and evaluated. The proposed permit, we pointed out,had
become stale before it has even issued.
Within days of submitting those comments,we have learned of yet another instance of
undocumented seepage occurring at the Allen plant.This time, an old corrugated metal pipe was
discovered discharging below the inactive ash basin towards the Catawba River during a site
visit, ironically,occurring as part of discovery in the three-year-old enforcement cases aimed at
abating such prohibited discharges. Here again,nothing in the permit application materials
submitted to DEQ demonstrate that Duke Energy had earlier reported this engineered discharge,
1 The Public Notice directs email comments to [e-mail],but we have also elected to submit
copies to the NCDEQ email address published for other permit renewals under consideration by DEQ.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
100%recycled paper

nor that it was aware that this seepage in violation of its NPDES permit is occurring.
Preliminary testing of the seep has already confirmed the presence of coal ash indicators like
boron significantly in excess of the 2L groundwater standard. As we have stated previously,
trying to expand existing permits to cover uncontrolled seeps and predict future leaks from
Duke's primitive coal ash basins defies the intent of the CWA to move towards eliminating
polluted discharges. These massive basins are unlined,and Duke Energy's own studies show the
ash sits submerged deep in the groundwater,discharging pollutants. The discharge of water
polluted with coal ash contaminants through seeps and leaks evades the entire purpose and
function of the waste treatment system to contain the waste.
Critically,this particular piped discharge observed during the December 15 site visit is
occurring from an impoundment that no longer actively treats coal ash. It was dewatered years
ago, and is capped by a coal ash landfill that Duke Energy has built over the original mass of ash.
We commented previously that Duke Energy's own analysis has revealed that coal ash at Allen
is sitting as much as 50 to 90 feet below the groundwater table, and its own models predict up to
60 feet worth will remain submerged after dewatering of the active basin. See Duke Energy,
Comprehensive Site Assessment Figures (geologic cross sections);Duke CAP 1,part I(cap-in-
place simulations); Cosler Am.Report at 26-27. These studies recognize that the ash will
continue to leach pollutants for centuries. The new seeping pipe indicates capping, in fact,is not
controlling seepage from the inactive ash basin at unit. Duke Energy's long term-proposed
closure plan for the adjacent, active basin is a similar cap in place strategy; this also can be
expected to fail at controlling leaks to groundwater and surface water. In larger context, DEQ's
proposed seep permitting strategy in the Allen permit is part and parcel of Duke's preferred
approach to leave its ash in place, discharging through seeps and leaks,with no end in sight.
This comports with neither federal nor state law, as we have explained in prior comments. The
most recently discovered seeping pipe further underscores that a mere paper exercise cannot
bring Duke Energy's enormous, antiquated ash basins into compliance with the law.
Similarly(and as raised previously) ongoing releases of pollutants from both the active
and inactive ash ponds to Lake Wylie,a water of the United States, are not limited to piped
discharges but also occur through hydrologically connected groundwater. An audit conducted on
behalf of a court monitor appointed in connection with Duke Energy's guilty plea to criminal
violations of the Clean Water Act at ash ponds in North Carolina concluded that"groundwater. .
. discharges to Lake Wylie"with ash-related pollutants? The CWA prohibits the discharge of
any pollutant into the waters of the United States except in compliance with a permit. 33 U.S.C.
§ 1311(a). DEQ has erroneously overlooked this CWA discharge in the current permit draft.
Duke,for its part,hopes to mask some of these impacts by incorporating rivers and
streams into its ash basin treatment systems. As we commented previously,in the case of Allen,
Duke accomplishes this by drawing points of compliance for groundwater(or the"compliance
boundary")out into the Catawba River,as reflected on many maps submitted by Duke Energy to
DEQ in the course of the pending enforcement case. In other words,rather than measuring
compliance with groundwater standards at the shore,before the Catawba River, Duke Energy
asserts ownership of the river, and contends it can pollute groundwater underneath the river. We
have pointed out that the Allen draft permit neglects to include a map designating the compliance
2 See https://www.duke-energy.com/ /media/pdfs/our-company/ecp-final-audit-report-allen.pdf?la--en.
2

boundary for the Allen facility. The NPDES permit,however,must define the compliance
boundary around the ash basins—a legal requirement we have previously explained in detail.
Further supporting this, DEQ's own counsel maintained in a December 19, 2016 hearing in the
state enforcement cases that the compliance boundary for each facility is defined through the
permitting process. Inexplicably,DEQ persists here in not defining a compliance boundary in
the permit materials released for public comment. DEQ must incorporate a compliance
boundary into the permit, and the compliance boundary cannot allow Duke Energy to co-opt the
Catawba River into its wastewater treatment system.
The draftermit remains inconsistent with the requirements of North Carolina and
P �
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.
Sincere y,
Thomas Lod c
Austin DJ Gerken
Amelia Y. Bumette
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
Catawba Riverkeeper Foundation,
Sam Perkins, Catawba Riverkeeper®
421 Minuet Lane Suite#205
Charlotte,NC 28217
[e-mail]
Waterkeeper Alliance
Peter Harrison
976 Martin Luther King Jr. Boulevard
Chapel Hill,NC 27514
[e-mail]
3

Sierra Club
Bridget Lee
50 F Street,NW, 8th Floor
Washington, DC 20001
[e-mail]
cc:
Gina McCarthy, EPA Administrator
Heather MeTeer Toney, Regional Administrator,Region 4
4