NC0005088_Comments_20180612

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 48 PATTON AVENUE.SUITE 304 Facsimile 828-258-2024
ASHEVILLE.NC 28801-3321
June 12, 2018
Via First Class U.S. Mail and Electronic Mail
Teresa Rodriguez RECEIVED/DENRIDWR
NCDEQ/Division of Water Resources
Water Quality Permitting Section -NPDES JUN 15 2018
1617 Mail Service Center
Raleigh,NC 27699-1617 Water Resources
Permitting Section
[e-mail]
[e-mail]
Re: Rogers Energy Complex, Draft NPDES Permit, #NC0005088
Dear Ms. Rodriguez:
On behalf of MountainTrue and the Broad River 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 Rogers
Energy Complex/Cliffside Steam Station("Cliffside"). MountainTrue is a nonprofit
organization dedicated to protecting streams, rivers, and groundwater from contamination. The
Broad River Alliance is an affiliate of MountainTrue focused specifically on the Broad River
watershed. MountainTrue's members use the Broad River for recreation,business, or
educational purposes and rely on groundwater as a source of drinking water, including
groundwater in close proximity to the Cliffside plant. Both MountainTrue and the Broad River
Alliance advocate for cleaner water, awareness and education of the Broad River, improved
access, and broadened recreational opportunities within the Broad River Basin. For years,
MountainTrue has advocated in the courts and public arena for proper cleanup and remediation
of Duke Energy's unlined, leaking coal ash impoundments, including those at the Cliffside plant.
MountainTrue and Broad River Alliance submitted comments on the prior draft NPDES permit,
on November 10, 2016, advocating for stronger permit limits and full cleanup of the Cliffside
facility.'
While this permit is in place North Carolina's rivers and communities will face a huge
flush of coal ash polluted water from virtually all of Duke Energy's coal ash lagoons, including
Cliffside, as the lagoons are finally and thankfully shut down. Like other plants (regardless of
' These 2016 comments are attached and incorporated by reference to the extent applicable to the revised permit.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
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closure method), Cliffside's ponds 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 a historic massive pollution event for North Carolina's waterways,particularly the
Broad River, one of the smallest waterbodies subject to Duke Energy's coal ash discharges with
lower potential to assimilate pollution from decades of irresponsible coal ash storage. The Broad
River and those that rely on it deserve the strongest protections as Duke drains its lagoons.
In this most recent revision of Cliffside's NPDES permit, DEQ resolves some concerns
we raised in 2016. However,major problems remain in DEQ's approach, which effectively
would allow Duke to continue discharging toxic wastewater to the detriment of the Broad River,
and in violation of the Clean Water Act. Among the most problematic: DEQ caves to Duke
Energy's unjustified request to continue dumping FGD wastewater until the last possible date
under federal effluent limitation guidelines ("ELGs"), December 21, 2023, which means Duke
Energywill dumpheavymetals in the Broad River for longer; and DEQcontinues to ignore
g � gn
unlimited discharges of pollution from the coal ash basins through hydrologically connected
discharges to Suck Creek, the Broad River, and adjacent wetlands and streams. Recent fish
tissue testing carried out by researchers from Appalachian State University("ASU"), attached,
confirms that heavy metals are impacting fish in the Broad River. DEQ must do more to protect
public health and the water quality of the Broad River.
As we have stated for years, the best way to protect the public and the Broad River is to
require Duke to fully and finally clean up its coal ash mess by excavating the ash and moving it
to dry, lined storage.
1) Fish Tissue Monitoring Is Insufficient
The Broad River receives significant recreational use. Downstream of the Cliffside plant
people congregate on the riverbank along the 1,500-acre Broad River Greenway.2 The river is a
popular kayaking, canoeing, and swimming destination.3 And the river plays host to recreational
and subsistence fishing for catfish, largemouth bass, smallmouth bass, and redbreast sunfish
among other species. Some of this fishing occurs in the immediate vicinity or just downstream
2 https://broadrivergreenway.com/
3 http://www.rutherfordoutdoor.org/paddling
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of the Cliffside plant.
Researchers from ASU recently conducted fish tissue sampling studies on the Broad
River, at locations above, at, and below the area near the ash pond outfall. The study results
demonstrate that fish are accumulating heavy metals that are within Duke Energy's effluent, and
that fish downstream of the outfall had significantly more metals accumulation for selenium and
zinc, in particular, than upstream samples. See summary of results, attached.
This is particularly concerning since DEQ provides no limit on selenium discharges
through the ash pond outfalls, no limits on zinc in outfalls 104 and 106, and the data indicates the
zinc limits for outfalls 002 and 005 must be strengthened. Duke Energy's Corrective Action
Plan Part I for the Cliffside Steam Station identified selenium as a"constituent of interest"with
exceedances of health and regulatory standards in various media. See, e.g., CAP I at 20.
Additional Duke studies reveal that zinc has been detected in illegal seeps in excess of regulatory
standards, CAP II at 16, and in excess of provisional background concentrations in drinking
water wells of residents surrounding the Cliffside plant, CSA Supplement(January 2018), 4-6.
The impacts of these contaminants on aquatic and human health are well documented.
The draft NPDES permit requires fish tissue sampling(Conditions A.(14)),but only once
a year, in one location, and for three metals—arsenic, selenium, and mercury. DEQ's half-
hearted sampling requirement(though improved from previous permits)will allow significant
accumulation of metals in fish tissue, on a river where people fish frequently,to go
undocumented and uninvestigated. To protect the public health,DEQ must require meaningful
fish tissue studies, at multiple locations upstream and downstream of Duke's ash pond outfall,
and with contaminants beyond mercury, selenium and arsenic. The importance of adequate fish
tissue studies is underscored by the fact that, as discussed below, some of the constituents that
appear to be bioaccumulating in fish are discharged through seeps at the Cliffside plant. As we
stated in our February 14, 2018 comments on the Special Order by Consent applicable to the
Cliffside plant,the chosen"representative seeps" for monitoring purposes at Cliffside are grossly
inadequate to fulfill that role. Duke Energy apparently questions whether seep S-7 is impacted
by coal ash at all. See Cliffside CSA at 45 (downplaying impacts to S-7). Any effort to monitor
water quality impacts from coal ash contaminated seeps will certainly fall short if the chosen
representative seep is not, in fact, impacted by coal ash. The shortcomings of that monitoring
approach only underscore the need for robust fish tissue studies at Cliffside.
The results of future studies should be shared publicly and with DHHS and WRC
officials to evaluate the need for fish consumption advisories on the Broad River. Furthermore,
Condition A.(14)requires Duke to submit a fish tissue monitoring plan within 180 days of the
effective date of the permit. We ask that DEQ commit to making the monitoring plan available
for public comment before incorporating it as an enforceable part of the permit.
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Finally, the ASU data suggests Duke Energy's effluent discharge is contributing to a
violation of the aquatic life standard in the Broad River. DEQ must revisit limits on the
discharges (or lack of limits)that it has deemed allowable resting solely on RPA—which is only
one metric of compliance with water quality standards—to ensure compliance with all applicable
water quality standards. In short, DEQ must fulfill its mission of protecting the environment and
the public by incorporating more stringent pollution limits into the Cliffside NPDES permit.
2) DEQ Has Not Justified Protracted Compliance Dates with New Effluent Limitations
for FGD Wastewater
As the Department recognizes, new federal rules establish technology-based effluent
limitations on the discharge of pollutants in wastewater from flue gas desulphurization("FGD")
systems, which must be met"as soon as possible"beginning November 1, 2020,but no later than
December 21,2023. To start with, the implementation date of November 1, 2020, which was
formerly effective November 1, 2018, reflects the Trump administration's effort at postponing
effluent limits at coal plants, a move that is subject to legal challenge.4 See EPA's
postponement, codified at 40 CFR 423.11,423.13, and 423.16. Though even under the Trump
Administration's delay, the default compliance date is November 1, 2020, DEQ persists in
allowing Duke's unsupported request to continue dumping FGD wastewater until the last
possible date,December 21, 2023 —for nearly five more years, and beyond the expected
expiration date of this draft permit.
Although the EPA left to state permitting authorities the responsibility of determining
when the new limits will apply, EPA requires that the"as soon as possible" date be November 1,
2020, "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. Here, DEQ has neither explained why
allowing additional time for compliance is appropriate nor provided any documentation of its
justification for additional time. See Permit Fact Sheet 6 (FGD wastewater). Instead, DEQ
merely offers perfunctory, non-explanatory statements for the extension of compliance deadlines
for limits. For FGD wastewater, DEQ offers only: "Duke requested a compliance schedule to
evaluate, install and test a new treatment system with a proposed compliance date of December
31, 2023. The permit will require compliance by this date." Permit Fact Sheet at 6. This falls
short of the well-documented justification required by EPA regulation. Whether Duke can make
that justification at all is an open question as Duke apparently intends to transition the Cliffside
4 See, e.g.,Center for Biological Diversity v Pruitt,No.4:18-cv-00050(D.Ariz.);see also Clean Water Action v.
Pruitt,No. 18-60079(5th Cir.);Clean Water Action v.Pruitt,D.D.C. 1:17-cv-00817-KBJ(appeal pending).
4

plant to predominantly use natural gas as fuel, rather than coal,before 2020.5 Allowing
unnecessary delay in complying with federal ELGs without any valid justification would be
arbitrary and capricious.
6)DEQ Must Impose Sufficiently Stringent Effluent Limitation on Outfalls 002 and
005.
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.
• Lack of Limits on Toxic Metals: The Broad River is 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 into these 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, cadmium, thallium,nitrogen,phosphorus, and for some
other constituents of concern. Many of those constituents were identified as potentially
problematic "constituents of interest"in Duke's Comprehensive Site Assessment and
other CAMA-required studies. There is simply no reason discharge of these
contaminants should not be limited in this NPDES permit.
Concern over the discharge of these contaminants is not just hypothetical. The ASU
study documented selenium, lead, and arsenic in fish tissue, in excess of recommended
human consumption levels, around the Cliffside plant. See summary of results, attached.
DEQ must appropriately limit the discharge of these constituents to protect aquatic
populations and members of the public who consume the fish.
DEQ appears to be relying upon the presumed ability of the flows of the Broad 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 River.
Further, as evidenced by the ASU fish study, many of these pollutants accumulate and
stay in the River, even if their concentrations are diluted when they first enter the
waterway. DEQ is allowing Duke Energy to dump massive amounts of arsenic,mercury,
5 See https://www.utilitydive.com/news/bloomberg-duke-to-spend-200m-converting-north-caroling-coal-units-to-
gas/510603/.
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lead, and other harmful pollutants into the Broad River during one of the largest single
water pollution events in its history.
The technology to appropriately limit those discharges is unquestioningly available; DEQ
has incorporated stricter limits in other Duke permits such as for the Sutton plant. There
is no reason why DEQ cannot put in place similar protective limits for the Broad River
when Duke Energy dumps its coal ash polluted water out of its Cliffside lagoons.
• Turbidity: The condition related to turbidity correctly states the limit as it relates to the
receiving stream: "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." Draft Permit Condition A.(1)note 9. This reflects the standard which
provides, "if turbidity exceeds these levels due to natural background conditions, the
existing turbidity level shall not be increased." 15A N.C. Admin. Code 2B .0211(21).
However, it is unclear how the monitoring will achieve compliance with the standard.
Upstream and downstream instream monitoring for turbidity is only triggered when the
effluent measurement exceeds 50 NTU. Waiting until effluent turbidity exceeds the limit
for the Broad River will not prevent the effluent from causing instream violations when
discharging less than 50 NTU. DEQ must add a trigger that can effectively achieve
compliance with the 50 NTU standard.
• Monitoring: As we stated previously, the monitoring requirements for ash pond effluent
should be expanded to include constituents associated with coal ash. Monitoring for all
constituents of interest identified in Duke's Cliffside Comprehensive Site Assessment for
ash basin water,porewater, and seeps, should be incorporated at a minimum. These are
the very constituents Duke's own analysis identifies as potentially problematic at this
site. During dewatering, it is particularly critical to require monitoring for a sufficient list
of contaminants to make sure any violations of water quality standards (narrative and
numeric) are detected, even if DEQ is not presently anticipating those violations. In other
words, DEQ needs to capture sufficiently broad information about the effluent during
decanting and dewatering to make sure additional steps can be taken in time to protect
water quality and public heal-in the Broad River. Finally, the permit's proposed
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 daily monitoring of ash basin discharges is impractical,particularly during
decanting and dewatering. Certainly monthly monitoring, as proposed in the current draft,
is insufficient to ensure the Broad River is protected during decanting. Similarly, DEQ
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should require daily or weekly monitoring of FGD wastewater at internal outfall 004
rather than mere quarterly monitoring.
Additionally, DEQ should clarify the monitoring frequency for outfall 005. Several
constituents are to be monitored on a"monthly/weekly"basis depending on whether
decanting or dewatering is occurring. First, it is unclear if the decanting and dewatering
conditions relate to the active ash pond(discharged through outfall 002) or new
wastewater treatment plant(discharged through outfall 005). Second, it is unclear what
the monitoring frequency is under normal—i.e., not dewatering or decanting—
conditions. The fact sheet suggests that monitoring for cadmium,mercury, selenium,
arsenic, and thallium is required only when decanting or dewatering wastewater is being
discharged through outfall 005. Fact Sheet, 7. DEQ has provided no justification to
allow Duke to cease monitoring those constituents under normal circumstances once the
new wastewater treatment system is built. The contaminants will still be present in
wastewater being discharged through outfall 005 which includes FGD wastewater.
Internal outfall 004, specific to FGD wastewater, does not include monitoring
requirements for several of those constituents. DEQ should incorporate stronger permit
limits for outfalls 002 and 005. Instead it appears to be waiving the requirement even to
monitor for contaminants associated with burning coal to produce electricity. Waiving
that requirement may violate the effluent limitation and anti-backsliding provisions of the
Clean Water Act and is certainly not in the public interest.
• Physical/chemical treatment: DEQ proposes to add unnecessary and confusing language
to a condition that, on its face, requires physical-chemical treatment of ash pond
wastewater during ash pond decommissioning. The condition in the last draft permit
provided as follows, and the revised condition proposes to add the bold and italicized
language below:
When the facility commences the ash pond/ponds decommissioning process,
the facility shall treat the wastewater discharged from the ash pond/ponds by
the physical-chemical treatment facilities, if necessary to assure state Water
Quality Standards are not contravened in the receiving stream.
Draft Permit, Conditions A.(2.)and A.(3.). DEQ's cover sheet yields little insight
into this addition,merely noting the additional language to "install physical-
chemical treatment if necessary to meet the water quality standards." In the
absence of any explanation in the record regarding the revision, and additional
assurances and measures that will be taken to assure water quality standards are
protected in the Broad River and its tributaries during accelerated closure
activities, DEQ should retain the condition as originally worded.
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• The Permit Must Address a Limit for Bromide Discharges: The permit proposes to add
instream monitoring for bromide but sets no discharge limit on the ash pond outfall and
provides no express provision requiring development of such a limit within the permit
term, if needed,based upon monitoring results. When bromide mixes with chlorine in
treated drinking water supplies, it forms carcinogens known as trihalomethanes
("THMs").6 Despite this known threat to downstream drinking water supplies, it still
does not appear that DEQ plans to conduct RPA to determine whether or what limits
need to be set related to bromide discharges in the Cliffside 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 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 allow for a limit for bromide within this permit,based upon
monitoring, sufficient to protect everyone who drinks water downstream,particularly
during dewatering and decanting.
7) The Permit Should be Revised to Address Remaining Flaws
• The Draft Permit Proposes Permitting"Constructed" Seeps at outfalls 104 and 106: Like
earlier proposals, this draft permit falls far short of achieving compliance with the law
6 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.")
7 40 C.F.R. § 122.44(dxl)(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.").
8 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.").
915A N.C.Admin.Code 2B .0208(a)(2).
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and does not require Duke Energy to stop its polluted seepage. For two proposed seeps,
called constructed outfalls 104 and 106, DEQ proposes to issue a permit allowing the
contaminated discharges. Duke Energy has reported 35 or more seeps surrounding the
active and inactive ash basins at Cliffside, as discussed in prior comments. Pollutants
like arsenic,barium,beryllium,boron, chromium, cobalt, iron, lead,manganese,nickel,
sulfate,total dissolved solids, thallium, and vanadium escape through seeps around the
Cliffside plant, according to Duke Energy's own sampling. MountainTrue's sampling of
seeps flowing towards the Broad River has similarly revealed numerous pollutants
escaping from Duke Energy's coal ash basins. Since the last draft permit, DEQ entered a
Special Order by Consent as an interim measure to address most of the seeps at Cliffside
during decanting and initial steps of dewatering.10 We commented that DEQ should
address all seepage through the SOC, rather than attempt to legitimate any polluted
seepage through a permitting mechanism. The discharge of water polluted with coal ash
contaminants through seeps and leaks should not be permitted under the CWA, or else
the entire purpose and function of the waste treatment system would be evaded. Instead,
DEQ should require Duke Energy to stop the discharge of contaminated water by
removing the source of contamination of those seeps—that is, the coal ash stored within
the ash impoundments and submerged in groundwater at Cliffside plant should be
removed and safely disposed of in dry, lined storage.
The draft permit also fails to recognize that S-6 is a jurisdictional water and cannot itself
be identified as a pollution discharge outfall. Duke Energy has identified S-6 as one of
several seeps that are"tributaries of Broad River," for example, in its own Discharge
Assessment Plan. See Duke Energy Carolinas, LLC,Discharge Assessment Plan,
Cliffside Steam Station, at Table 1 &Fig. 2 (April 2016). Seep S-6 is located
downgradient from the downstream dam of the active ash basin and coincides with
historical Suck Creek discharge. See id. at Fig. 1; CSA, Fig. 2-3.1. Duke Energy itself
has conceded that the `Broad River" and"all tributaries of the Broad River" are
jurisdictional "waters of the United States." See Joint Factual Statement, U.S. v. Duke
Energy,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 outfalls to convey pollutants to other jurisdictional waters. Failing to recognize S-6 as
a tributary also renders the reasonable potential analysis flawed,because it appears to
have incorrectly focused its analysis only on a contravention of water quality standards in
the Broad River, without assessing compliance in streams and wetlands. The Department
cannot ignore other jurisdictional waters of the United States, including tributaries and
wetlands receiving polluted discharges, for purposes of determining reasonable potential
to violate surface water standards. For any tributaries or wetlands being impacted by
wastewater contaminated with coal ash, the Department must determine if the discharge
1°In separate comments we have pointed out potential gaps to enforcement in the SOC.
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"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). Additional reasonable potential
analysis should include the tributary coinciding with S-6. Concentrations in samples
from seep S-6 have exceeded relevant surface water 2B standards, 2L and/or IMAC
groundwater standards for boron, cobalt, iron, manganese, and vanadium. The
reasonable potential analysis must be expanded to determine whether the discharge to S-6
has the potential to contribute to an exceedance of narrative or numeric standards.
• The Draft Permit Overlooks Discharges of Wastewater Through Hydrologically
Connected Groundwater: As explained in prior comments, 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);see also Upstate Forever v. Kinder Morgan Energy
Partners,L.P., 887 F.3d 637, 651 (4th Cir. 2018) (finding discharge from point source to
navigable water though direct hydrologic groundwater connection subject to Clean Water
Act). The coal ash pond at Cliffside is estimated to discharge over 605,000 gallons per
day of contaminated wastewater to the Broad River—over 221 million gallons annually—
througroundwater via a direct hydrologic connection to the river.
Duke Energy,
Appendix D to CAP II, 3. That discharge is not included in the current permit. 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 . . . ."). DEQ must
incorporate the hydrologically connected discharge into its RPA to determine if there is a
reasonable potential to violate or contribute to a violation of surface water quality
standards. Ultimately, DEQ should require Duke Energy to stop the discharge of
contaminated wastewater to the Broad River via hydrologically connected groundwater
by removing the source of contamination—Duke Energy's coal ash.
• The Permit Continues to Violate the Removed Substances Provision: As we articulated in
our prior comments,the approach set forth byDEQviolates the existingRemoved
Pp
Substances provision(Standard Conditions, Part II.C.6) of the permit, providing:
"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). Coal ash at C}iffside—the"removed substance"—is sitting as
much as 60 feet below the groundwater table. Duke Energy, Comprehensive Site
Assessment Figures. 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. The Department must
require Duke Energy to remove the "removed substances"from the waters of the State
and should not authorize the ongoing violation of an existing permit term by purporting
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to issue a new permit with the same terms while the facility is in violation of the existing
permit.
• The Permit Removes the Requirement to Monitor Water Quality in Suck Creek: The
2016 draft permit required semiannual water quality monitoring in Suck Creek. See 2016
Draft Permit, Condition A.(30). That requirement appears to have been dropped in the
2018 draft. See 2018 Draft Permit Condition A.(13). Suck Creek is a water of the United
States and water of the state that DEQ is charged with protecting. It must include water
quality monitoring in Suck Creek to ensure water quality standards are not contravened.
• The Permit Unexplainably Accelerates Dewatering: Decanting and dewatering are
necessary steps toward stopping the outdated practice of sluicing wet ash through a
massive unlined basin beside the Broad River,but they must be done safely. In the past,
DEQ and EPA have imposed conditions on decanting and dewatering, including that
"drawdown will be limited to one foot per seven days to ensure structural stability."11 In
at least one permit, DEQ has explained that the one-foot per week rate was necessary to
"maintain the integrity of the dams."12 The 2016 draft permit for Cliffside incorporated
that requirement, limiting drawdown to one-foot per week. In this permit, DEQ allows
drawdown of one-foot per day. DEQ must demonstrate a rational basis for the change,
including that it considered the impact of the increased speed to the structural safety of
the dam and water quality of the receiving waters. Without a sufficient rational basis,
DEQ's actions are arbitrary and capricious, and may threaten the safety of the basin and
receiving waters.
Related to decanting and dewatering, the permit requires Duke to notify DEQ seven
calendar days prior to the commencement of dewatering. Draft Permit Condition A.(1).
DEQ should amend that requirement to not only require advance notice to DEQ but also
to the general public through publication in local newspapers. Downstream users should
be made aware that Duke Energy is preparing to discharge highly contaminated water
from its ash lagoons.
• DEQ Must Require Duke Energy to Comply with Clean Water Act Section 316(b):
Section 316(b) of the Clean Water Act requires certain utilities to meet best technology
�
available standards for cooling water intake structures. The Cooling Water Intake
11 See Letter from James D.Giattina,Director,Water Protection Division,EPA Region 4,to Tom Reeder,Assistant
Secretary for the Environment,North Carolina Department of Environmental Quality(Dec. 14,2015);see also
recent NPDES permits issued for the Sutton,Dan River,and Riverbend plants.
12 See L.V. Sutton Energy Complex NPDES Permit(NC0001422),3,n.7,4,n.8,5,n.5,6,n.5 (Dec. 3,2015),
available at
https://files.nc.gov/ncdeq/Water%20Quality/NPDES%20Coal%20Ash/2014%20Duke%20Energy%20Renewals%2
Oand%20Modifications/Sutton/Sutton%20 W W%20%23NC001422%2Opermit%20signed-2015.pdf.
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Structure Rule requires Duke Energy to submit information demonstrating how it will
comply. But the draft permit says only: "The permittee shall comply with the Cooling
Water Intake Structure Rule per 40 CFR 125.95. The permittee shall submit all the
materials required by the Rule with the next renewal application." There is no
requirement to actually take action to comply,but rather only a requirement to submit
"materials"the next time the permit will be renewed—a five-year delay at least, and
based on DEQ's past practice of administrative extension of permits perhaps many more
years beyond that.
This unjustified, extended delay violates the Rule and the Clean Water Act. Under 40
C.F.R. 125.95(a)(2), "[i]f the owner or operator of the facility demonstrates that it could
not develop the required information by the applicable date for submission,the Director
must establish an alternate schedule for submission of the required information." But the
Fact Sheet provides no basis for any conclusion that Duke Energy could not develop the
required information by the applicable date for submission, only that DEQ approved
Duke's request to effectively waive the requirement until the next permit cycle. DEQ
cannot unilaterally waive Clean Water Act requirements at the request of Duke Energy.
At a minimum, DEQ must explain why Duke could not comply in the next few months,
in a year from now, or in two years from now; and for one of the nation's largest utilities,
that seems unlikely. Instead, Duke Energy should be required to comply with the Clean
Water Act immediately.
8) We Support the Following Changes in the 2018 draft permit
As noted previously, there are several positive changes in the 2018 draft permit.
Specifically:
• Removing Effluent Channel for Streams: The 2018 version abandons the flawed
approach of turning seeps,many of which coincide with streams, into "effluent
channels." In a shift we support, most seeps (non-constructed seeps) are removed
from coverage under the permit. Along with the elimination of most seeps from the
Cliffside permit, DEQ proposed, and the EMC approved with modification, a Special
Order by Consent as a mechanism to oversee non-constructed seeps for an interim
period while accelerated decanting occurs. We generally support this approach,
which appropriately leaves to the wayside DEQ's prior attempt to legitimize most of
the Cliffside seeps by permitting them. However, we raised specific concerns with
particular terms of the Special Order by Consent–for example, the process to
"disposition"the seeps. For purposes of this permit, we support removing Cliffside
seeps as effluent channels from the permit, and view that as necessary to comply with
federal and state law. As discussed above,however, attempting to legitimate coal ash
seepage occurring through two "constructed seeps"repeats the error of prior drafts.
12

• The Addition of a Map and Compliance Boundary Condition Enforcing Groundwater
Rules at the Shoreline of the Broad River: The absence of a map properly designating
a compliance boundary at the Cliffside facility was a critical omission. State law
requires the compliance boundary to stop at the shoreline of the Broad River, and the
Clean Water Act does not allow Duke Energy to co-opt the Broad River as part of its
waste disposal system, as it previously proposed. We support this change and the
addition of related condition A.(30.) as important steps toward enforcing the 2L Rule
at the Cliffside Steam Station. 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).
• Elimination of the purported 12-mile mixing zone: The prior draft permit proposed to
grant Duke Energy a 12-mile"mixing zone"to assimilate thermal discharges in the
Broad River, for purposes of achieving an ambient temperature of 32 degrees C (89.6
degrees F). The EPA's NPDES Permit Writers Manual states that"the use and size of
the mixing zone must be limited such that the waterbody as a whole will not be
impaired and such that all designated uses are maintained . . . ." (6.2.5.2 Mixing
Zone Size). The revised permit defines the thermal plume in terms of feet,rather than
miles, and provides seasonal restrictions, improved monitoring, and a verification
study. We request that DEQ make the results of monitoring and the verification
study available to the public, as it evaluates the effectiveness of the mixing zone at
protecting aquatic life from thermal pollution.
To assess compliance with this requirement permit condition A.(27)references
"upstream"and"downstream" sampling locations. We assume the"upstream"and
"downstream"temperature sampling locations refer to the upstream and downstream
geographic limits of the temperature mixing zone. Permit condition A.(13) also
requires in-stream temperature monitoring at Alternative Route 221 (upstream) and
Highway 150(downstream). Those locations are well outside the temperature mixing
zone. Establishing an appropriate mixing zone is only meaningful if the monitoring
required by DEQ matches the geographic parameters of the mixing zone. DEQ
should clarify that the requirement to monitor temperature in condition A.(13) is in
addition to the requirement in condition A.(27).
13

• Increased frequency of in-stream water quality monitoring: Related, condition A.(13)
increases the frequency of water quality monitoring to monthly from semiannual in
the 2016 draft. This is a positive change that will help the agency better evaluate
compliance with water quality standards. However, the downstream sampling
location, Highway 150, is too far downstream to accurately assess the impact of
Duke's discharges on the Broad River. Over five miles of river that receive frequent
recreational use run between the Cliffside plant and Highway 150. DEQ should move
the sampling point upriver to make sure the public is not exposed to highly
contaminated water prior to DEQ's proposed downstream sampling point.
9) Conclusion
The draft permit modification, although an improvement,remains inconsistent with the
requirements of North Carolina and federal law for the reasons described above. We ask for the
permit modification to be withdrawn and for the permit to be rewritten to correct the legal
deficiencies we identify, to protect water quality and the public interest. We also request a
hearing so that the public has a sufficient opportunity to weigh in on these important issues.
Sincerely,
gj/
Patrick Hunter
Amelia Y. Burnette
Austin DJ Gerken
Southern Environmental Law Center
48 Patton Avenue, Suite 304
Asheville,NC 28801
828-258-2023
[e-mail]
[e-mail]
[e-mail]
Counselfor Mountain True and Broad River
Alliance •
cc: via email only
Karrie Jo-Shell, Engineer, EPA Region 4
Zack Moore,NC DHHS, Epidemiology
14
_ _ I

ATTACHMENTS
15

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] 22 SOUTH PACK SQUARE,SURE 700 Facsimile 828-258-2024
ASHEVILLE,NC 28801-3494
November 10,2016
VIA EMAIL AND U.S.MAIL
Wastewater Permitting
Attn: Rogers Energy Complex
1617 Mail Service Center
Raleigh,N.C.,27699-1617
[e-mail]
[e-mail]
Re: Draft NPDES Permit—Cliffside Steam Station,Rogers Energy Complex,
#NC0005088
Dear Mr. Zimmerman:
On behalf of MountainTrue,we submit the following comments on the draft renewal
National Pollutant Discharge Elimination System("NPDES")permit noticed for public comment
by the North Carolina Department of Environmental Quality("DEQ")Division of Water
Resources for Duke Energy's discharge of pollution from its Cliffside Steam Station
("Cliffside").
MountainTrue is a nonprofit organization dedicated to protecting streams,rivers,and
groundwater from contamination. MountainTrue has members that use the Broad River for
recreation,business, or educational purposes and that rely on groundwater as a source of
drinking water,including groundwater in close proximity to the Cliffside plant. MountainTrue
also works with its affiliate,the Broad River Alliance,in advocating for cleaner water, awareness
and education of the Broad River,improved access, and broadened recreational opportunities
within the Broad River Basin. For years,MountainTrue has advocated in the courts and public
arena for proper cleanup and remediation of Duke Energy's unlined,leaking coal ash
impoundments,including those at the Cliffside plant.
Duke Energy's three unlined surface impoundments sprawl across 144 acres and contain
a combined 7.8 million tons of coal ash.' EPA's recently published Effluent Limitation
Guidelines("ELG")rightly recognizes such"surface impoundments . . . are largely ineffective at
controlling discharges of toxic pollutants and nutrients." 80 Fed. Reg. 67838, 67840(Nov. 3,
2015).Duke Energy's Cliffside plant is not different. The Broad River,which wraps around the
northern perimeter of all three coal ash basins,is the eventual recipient of unlawful leaks and
seeps emerging from the antiquated ash basins. Although Duke Energy plans to fully excavate
only the smallest basin(Units 1-4 inactive)and remove it to the existing lined landfill on site,it
I See Duke Energy Ash Basin Metrics,htips://www.duke-
energy.com/ /media/41f7548d440b45c98a8e96934b8cfae2.ashx(updated June 2,2016).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
100%recycled paper

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

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

The discharge of water polluted with coal ash contaminants through seeps and leaks
should not be permitted under the CWA, or else the entire purpose and function of the waste
treatment system would be evaded. Instead, DEQ should require Duke Energy to stop the
discharge of contaminated water by removing the source of contamination of those seeps—that
is,the coal ash stored within the ash impoundments and submerged in groundwater at Cliffside
plant should be removed and safely disposed of in dry,lined storage.
The fact sheet alludes to this eventual outcome under a separate state process of closing
the ash basins pursuant to the Coal Ash Management Act("CAMA"): "the facility needs to
dewater the ash pond by removing the interstitial water and excavate the ash to deposit it in
landfills." Permit Fact Sheet at 5. Of course,if DEQ intends to follow through on requiring
removal of the active ash basin, that would provide a legitimate means of abating polluted
discharge under the CWA, and should be incorporated into this permit. As such,the dewatering
and seep permitting would be instead"interim compliance measures"for the contemplated
removal of ash. As written,however,the permit instead puts no end-point on pollution escaping
through seepage, which is impermissible.
A. Permitting Waters of the United States as"Effluent Channels"Violates the Clean Water
Act and North Carolina Law.
DEQ's chief permitting strategy for seeps in the draft Cliffside permit is to bestow on
them the new label"seep outfalls"and identify them as"effluent channels"which flow into
"receiving streams." In fact,DEQ decides all 21 seeps it views in need of a permit are,
coincidentally, also"effluent channels"to convey Duke Energy's polluted discharge. Permit
Fact Sheet at 8-9;Rogers Energy Complex Draft NPDES Permit, Permit No. 0005088,
Conditions(A)7 to A(24) [hereinafter"Draft NPDES Permit"]. These seeps,however,appear
to be jurisdictional waters and ineligible for designations as effluent channels.
Duke Energy has identified seeps S-3 and S-6 as"tributaries of Broad River," for
example,in its own Discharge Assessment Plan. See Duke Energy Carolinas,LLC,Discharge
Assessment Plan,Cliffside Steam Station,at Table 1 &Fig. 2(April 2016) [hereinafter"DAP"].4
Seep S-3 appears to be a stream discharging to the Broad River north of inactive units 1-4. See
DAP at Fig.2. Seep S-6 is located downgradient from the downstream dam of the active ash
basin and coincides with historical Suck Creek discharge. See id. at Fig. 1; Comprehensive Site
Assessment,Fig. 2-3.1.5 Several seeps along the active impoundment on Suck Creek(S-14, S-
15, S-16, S-21) and the Broad River(S-2, S-17, S-18,S-19, S-19a) also coincide with wetlands
identified by Duke Energy. See Corrective Action Plan,Part 1 ("CAP 1"),Fig. 1-5. Duke
Energy itself has conceded that the"Broad River" and"all tributaries of the Broad River" are
jurisdictional`waters of the United States." See Joint Factual Statement, U.S. v. Duke Energy,
4 Available at DEQ's website at the following link:https://ncdenr.s3.amazonaws.com/s3fs-
public/W ater%20Qualitv/NPDES%20Coal%20Ash/Seep%201D%20Plans/April 16assessmentplans,Topo%20and%2
ODAP Cliffside 04.29.2016 FINAL.pdf
5 The DAP and CSA also identified other continuously-flowing seeps as tributaries of the Broad River,like S-1 and
S-8,that are not receiving permit coverage.Ignoring these seeps is also erroneous,as addressed below. For the CAP
2 sampling round(September 2015),the 2B standard for mercury was also exceeded at Seep S-1.
4

No. 5:15-CR-62-H,No. 5:1 5-CR-67-H,No. 5:15-CR-68-H(E.D.N.C),¶22.6 As jurisdictional
waters,these seeps cannot be permitted as effluent channels.
Seeps that are jurisdictional waters of the United States cannot themselves be permitted
as effluent channels to convey pollutants to other jurisdictional waters.' 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,
includingbut not limited to . . . [a] channel"). In sum,jurisdictional waters cannot be point
) P
sources; instead,water quality standards must be met in the jurisdictional waterbody,meaning in
the so-called seep.
North Carolina law incorporates the same foundational assumption—that a point source
cannot be a water of the United States. "Effluent channel means a discernable confined and
discrete conveyance which is used for transporting treated wastewater to a receiving stream or
other body of water." 15A N.C. Admin. Code 2B .0202 (emphasis added). Restated,an effluent
channel conveys wastewater to a receiving stream or body of water, the effluent channel cannot
itself be the receiving stream. But North Carolina law goes beyond the federal CWA by
prohibiting designation of an effluent channel if that channel "contain[s] natural waters except
when such waters occur in direct response to rainfall events by overland runoff." 15A N.C.
Admin. Code 2B.0228(2). "Natural waters"includes ground and surface waters. As with the
CWA,North Carolina law prohibits designation of an effluent channel if that channel contains
natural,jurisdictional surface waters. North Carolina law also prohibits designation of an
effluent channel if that channel contains groundwater. In other words, an effluent channel can
only be designated if that channel would be dry except during rainfall events and as a result of
transporting waste water. The seeps identified by Duke Energy include both jurisdictional
surface water tributaries and are influenced by natural groundwater,preventing their designation
as"effluent channels." This approach cannot be implemented consistent with federal and state
PPi' m P
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 14 seeps. North Carolina cannot turn a
blind eye to pollutant discharges, even if it turns out they do not violate water quality standards
("WQS"). DEQ's fact statement provides little insight into this decision, stating only that the
6 Available at https://www.duke-cneray.com/ /media/34a6a9f1)7c39463d99cdd060358b782b.ashx
7 Although Duke Energy seeks to have these tributaries and wetlands deemed effluent channels,by its own
admission,"Duke Energy does not yet have jurisdictional determination from the US Army Corps of Engineers"as
to whether these seeps constitute jurisdictional waters of the United States. See Letter from Harry Sideris to Jeff
Poupart(April 26,2016)(on file with DEQ).
5

seeps were excluded "based on the low concentration of the constituents associated with coal ash
and/or absence of a discharge to `Waters of the State.'" Permit Fact Sheet at 8. The statement
itself conveys a fundamental misunderstanding about the CWA. To be clear, the CWA concerns
itself with any point source pollutant discharges,not just with discharges of pollutants that rise to
a level that DEQ views as problematic. "The term `discharge of a pollutant' . . . means any
addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)
(emphasis added); 40 C.F.R. § 122.2. As recognized by the 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 coal ash constituents do not get
a free pass under the CWA.
In addition, DEQ appears to ignore conveyance of pollutants by short hydrological
connections from groundwater to surface water. Duke Energy cannot circumvent the CWA,
however,based on a seep disappearing at the creek's edge, for example,when it reconnects with
the waterbody via a short hydrological connection. Duke Energy's description of several seeps
appears to fit this scenario, e.g., S-25 ("Water emerges from ground, flows 30 feet toward the
Broad River, and then enters a sand bank"), S-26 ("no discernible flow except for drainage at
edge of bank"). See Letter from H. Sideris to J. Poupart(March 7,2016) (NPDES application
update, on file with DEQ). As further discussed below, Duke Energy's own studies show that
the unlined basins are discharging pollutants through surface and groundwater into the Broad
River and Suck Creek. DEQ cannot ignore seeps that are evidence of point source discharges via
groundwater. In sum,it appears DEQ has ignored 14 seeps based on an erroneous interpretation
of the law.
C. The Draft Permit Sets Inadequate Monitoring Requirements for Seeps and Does Not
Assure Permit Modifications for New Seeps Will Comply with Public Notice
Requirements.
Even if these seeps could be properly permitted as proposed by DEQ,the proposed
conditions also set inadequate monitoring for current and future seeps, and also may bypass
notice and comment requirements. At a minimum,more frequent monitoring of seeps would be
needed to meaningfully assess compliance. The draft permit requires monthly monitoring of the
seeps only for the first year;thereafter,monitoring is required only quarterly. There is no basis
supplied for reduced frequency of sampling. This infrequent sampling is inadequate for several
reasons. First, the flow and levels of contaminants in the seeps are likely to fluctuate based on
weather and season, so four snapshots per year will make it impossible to accurately assess the
amount of pollutants discharging into the Broad River, Suck Creek, and wetlands adjacent to
Suck Creek. While DEQ has candidly admitted it would be difficult to accurately monitor the
seeps even under the best of circumstances, infrequent sampling virtually guarantees the permit's
effluent limits and flow requirements will not be enforced. Second, this arrangement makes it
easier for the polluter to pick and choose sampling conditions that it views as ideal to avoid
finding violations. It also makes identifying new seeps far less likely.
Finally,this schedule falls short of the requirements of the CWA. EPA regulations
mandate that all permit limits shall, unless impracticable,be stated as both daily maximum and
average monthly discharge limitations. 40 C.F.R. § 122.45(d). Nothing in the fact sheet
6

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

In addition to EPA, "[t]he majority of courts have held that groundwaters that are
hydrologically connected to surface waters are regulated waters of the United States,and that
unpermitted discharges into such groundwaters are prohibited under section 1311." Friends of
Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1358 (D.N.M. 1995) (citations
omitted).
The United States Department of Justice("DOJ")recently emphasized"EPA's
longstanding position []that a discharge from a point source to jurisdictional surface waters that
moves through groundwater with a direct hydrological connection"comes under the purview of
the CWA.9 As expressed by DOJ "it would hardly make sense for the CWA to encompass a
polluter who discharges pollutants via a pipe running from the factory directly to the riverbank,
but not a polluter who dumps the same pollutants into a man-made settling basin some distance
short of the river and then allows the pollutants to seep into the river via the groundwater." Id. at
16 (quoting N. Cal. River Watch v. Mercer Fraser Co.,No. 04-4620, 2005 WL 2122052, at*2
(N.D. Cal. Sept. 1, 2005)). The same applies here. As discharges to Suck Creek and the Broad
River via hydrologically connected groundwater were not authorized under the current permit
(and are therefore prohibited),they should not be authorized in the revised permit.
Attempting to add it now may violate the anti-backsliding provision of the Clean Water
Act. 33 U.S.C. § 1342(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.
3) The Department Cannot Issue a Permit to a Facility that is Violating Surface Water
Standards
Even if discharges of hydrologically connected groundwater could be permitted,they
cannot in this instance because discharges from the Cliffside plant are contributing to violations
of surface water quality standards.
NPDES permits control pollution by setting(1)limits based on the technology available
to treat pollutants ("technology based effluent limits") and(2) any additional limits necessary to
protect water quality("water quality-based effluent limits") on the wastewater dischargers. 33
U.S.C. §§ 1311(b), 1314(b);40 C.F.R. § 122.44(a)(1), (d). An NPDES permit must assure
compliance with all statutory and regulatory requirements,including state water quality
standards. 33 U.S.C. § 1342(a)(1)(A);40 C.F.R. § 122.43(a); 15A N.C. Admin. Code 2H .0118.
99 See Brief for the United States as Amicus Curiae in Support of Plaintiffs-Appellees,Hawaii Wildlife Fund v.
County of Maui,at 5(No. 15-17447,9th Cir.),attached as Ex. 1.
8

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

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

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

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

indication of any attempt to determine BAT in the absence of an ELG for any of these
parameters.
There are two steps in determining BAT under these circumstances. First,the permit
writer must assess what technologies are"available." Second,the permit writer must assess
which of the available technologies are economically achievable. The technology that obtains
the highest reduction in pollutants and is also economically achievable is the BAT.12 DEQ must
complete these steps and assign additional limits at outfalls, including for Outfall 002—during
normal operations and dewatering13—as well as the seep outfalls(the seep permitting approach
is problematic for several additional reasons discussed elsewhere). Furthermore,to ensure
compliance with the North Carolina Total Maximum Daily Load for mercury,mercury limits
must be added to all outfalls.
B. The Department Has Not Justified Extended Deadlines for Compliance with New
Effluent Limitations.
As the Department recognizes,see Permit Fact Sheet at 2,new federal rules establish
technology-based effluent limitations on the discharge of pollutants in fly ash transport water,
bottom ash transport water, and wastewater from flue gas desulphurization("FGD")systems,
which must be met"as soon as possible beginning November 1,2018,but no later than
December 21, 2023." 40 C.F.R. §423.12(h),(k), (g). Despite the presumption that the rule is
effective November 1, 2018,the Department proposes to grant Duke's request to continue
dumping FGD wastewater until the last possible date, December 21, 2023—more than six years
from now and beyond the expected expiration date of this draft permit. Similarly,DEQ appears
to accept Duke Energy's request to continue dumping wet-sluiced bottom through December 31,
2020,over four years from now. See Draft NPDES Permit, Conditions A. (1),A. (5.).
In delegating state permitting authorities the responsibility of determining when the new
limits will apply,EPA presumes that the"as soon as possible"date is November 1,2018,"unless
the permitting authority establishes a later date, after receiving information from the discharger."
40 C.F.R. § 423.11(t). Any determination that a later date is appropriate must be well-
documented and reflect consideration,at a minimum,of the specific factors set forth in EPA's
regulations. See id. To be clear,the phrase"as soon as possible"means November 1, 2018,
unless the permitting authority establishes a later date after receiving information from the
discharger and after making an independent judgment regarding the appropriateness of an
extended compliance timeline. 80 Fed. Reg. at 67883. Indeed,"even after the permitting
'2 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
?lant,the pilot plant which acts as a beacon to show what is possible").
3 The dewatering conditions for Outfall 002 list the chromium limit twice in error and may indicate a different limit
that DEQ intended to carry through to dewatering. At a minimum,all of the limits from Outfall 002 during normal
operations should apply during the more intense dewatering phase,including the limits applicable during chemical
metal cleaning(iron,copper),because chemicals associated with that process may have settled into the ash basin and
be discharged at higher concentrations through interstitial water.
13

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

Liquid Discharge system for FGD wastewater began construction on January 28,2013. As of
March 31,2015, construction of this system was 100%complete.")
Duke Energy has been aware of the need to comply with the new effluent limits since at
least September 2015—when the final federal rules were published—and should already have
begun evaluating what changes would be needed at Cliffside and its other plants. As EPA stated
in September 2015: "Regardless of when a plant's NPDES permit is ready for renewal, the plant
should immediately begin evaluating how it intends to comply with the requirements of the final
ELGs. In cases where significant changes in operation are appropriate, the plant should discuss
such changes with the permitting authority and evaluate appropriate steps and a timeline for the
changes,even prior to the permit renewal process." 80 Fed. Reg. at 67882-83 (emphasis added).
Moreover,EPA's final effluent limits for FGD and coal ash transport water were also contained
in the proposed rule issued June 7, 2013—on which proposal Duke submitted comments. In
2014, Duke Energy reported that"[m]ost,if not all,of the steam electric generating facilities the
Duke Energy Registrants own are likely affected sources[and that] [r]equirements to comply
with the final rule may begin as early as late 2018 for some facilities,"Duke Energy,2014
Annual Report and Form 10-K at 59. Duke Energy has for years been on notice of the
impending need to upgrade wastewater treatment at its plants.
With respect to bottom ash transport water,North Carolina law requires Duke Energy to
convert to the dry handling of bottom ash by December 31,2019. Allowing for the continued
discharge of pollutants in bottom ash transport water after that date cannot be justified. Duke
Energy does not explain its claimed need for a"12 month window to optimize the system." See
Duke Energy Carolina,Supplemental Information Package(August 31,2016)at 4. DEQ has
offered no evidence that it has scrutinized or verified this claim. Moreover,Duke Energy has
known that dry ash handling would be required since September 2014,when the Coal Ash
Management Act was passed. Accordingly,it should have commenced design of the systems
needed to comply with that requirement years ago.
7) The Proposed Permit Violates North Carolina's Groundwater Rules
A. DEQ Must Impose Conditions To Prevent Further Groundwater Contamination
Because groundwater contamination is at or beyond the compliance boundary at
Cliffside, the state groundwater rules prohibit DEQ from issuing the proposed NPDES permit for
the Cliffside active ash basin.
North Carolina's groundwater rules state that"the[Environmental Management]
Commission will not approve any disposal system subject to the provisions of G.S. 143-215.1
which would result in a violation of a groundwater quality standard beyond a designated
compliance boundary." 15A N.C.Admin. Code 2L .0103(b)(2). This prohibition applies to the
Cliffside permit. The draft permit states on its face that it is issued"in compliance with the
provisions of North Carolina General Statute 143-215.1." Draft NPDES Permit at 1. The
Cliffside coal ash basin is a qualifying"disposal system" for purposes of the Groundwater Rule
with a compliance boundary set by the rule. 15A N.C. Admin.Code 2L.0107. Because DEQ
issues this permit under authority delegated by the EMC in 15A N.C. Admin. Code 02A .0105,
this prohibition applies to DEQ as well.
15

There is an extensive history of documented groundwater contamination at the
compliance boundary at Cliffside. Duke Energy's monitoring data,recently reported to the state,
has shown exceedances for antimony,boron,chromium,cobalt,iron,manganese,sulfate,total
dissolved solids, and vanadium in its compliance boundary monitoring wells. The majority of
these exceedances represent violations,based upon Duke's own over-estimated background
concentrations. Douglas J. Cosler,Ph.D., P.E.,Amended Expert Report, at 12(Apr. 13,2016)
(36 of the 62 Compliance Boundary exceedances were greater than the proposed provisional
background concentrations(PPBC)by HDR),attached as Ex.2. In its enforcement case,DEQ
alleged under oath numerous exceedances of the 2L standards at the Cliffside plant. Complaint
at 57-63.On this record,DEQ cannot reissue a permit for a failing wastewater treatment
system without imposing new conditions to correct this long track record of groundwater
contamination. Because this disposal system is already resulting in violations of groundwater
quality standards and will continue to do so,DEQ cannot issue the proposed NPDES permit
without imposing conditions sufficient to ensure these violations will cease.
Similarly,the Groundwater Rule bars the EMC(and DEQ acting on delegated authority)
from approving an NPDES permit that would result in"the impairment of existing groundwater
uses or increased risk to the health or safety of the public due to the operation of a waste disposal
system." 15A N.C.Admin.Code 2L.0103(b)(3). DEQ has already found Duke Energy's
studies deficient, so far,to show its migrating coal ash pollution is not a threat to nearby water
supply wells(receptors). In its February 2015 letter providing conditional approval for Duke
Energy's Groundwater Assessment Plan,DEQ warned Duke Energy that the plan did"not
provide a clear,cohesive description of how constituents of potential concern(COPCs)may
migrate from the source(s)to the receptors through various pathways.s15 In a draft letter
highlighting deficiencies in Duke Energy's CSA for the Cliffside plant,the content of which
DEQ staff communicated verbally to Duke Energy and its consultants at several meetings held
for that purpose,DEQ was similarly clear that the CSA Report"fails to fully explain the factors
affecting the occurrence,movement,and transport of constituents that exceed groundwater
quality standards as required by CAMA § 130A-309.211."16 The real-world data collected at the
Cliffside site,in sharp contrast to the artificially constrained modeling by Duke Energy's
consultant, confirm what common sense predicts: that residential wells pumping water out of the
ground within a few hundred feet of the Cliffside coal ash disposal areas are at risk from Duke
Energy's coal ash contamination. See Douglas J.Cosier,Ph.D.,P.E., Amended Expert Report, at
15-17, attached as Ex. 2.
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
15 Feb.24,2015 NCDENR Letter Conditional Approval of Revised Groundwater Assessment Work Plan for the
Cliffside Steam Station,at 1.
16 Sept. 18,2015 NCDENR Draft Letter Comprehensive Site Assessment Comments for the Cliffside Steam Station,
at 3.
16

.01O7(c)(emphasis added). The draft permit as distributed to the public for comment includes
no map designating a compliance boundary for the Cliffside facility. However,Duke Energy has
previously misdrawn its compliance boundary to extend onto property it owns on the other side
of the Broad River. For example,in its Topographic Map and Discharge Assessment Plan
submitted to DEQ pursuant to CAMA(dated April 29,2016),the attached figure 2 shows the
compliance boundary around the active ash basin on the opposite site of the Broad River from
the ash basin discharge.17 See supra;see also Cliffside CAP 2,Fig. 2-2(extending compliance
boundary across river). As one might surmise,this runs contrary to the law.
The riverbed of the Broad River is not under"common ownership"with Duke Energy's
power plant because the Broad River belongs to the people of North Carolina. Duke Energy's
maps assert ownership of the submerged lands beneath the Broad River at Cliffside. See
Cliffside CSA,Fig. 4-6. Those maps suggest that the property boundary of the lands on either
side of the river(Duke Energy owns parcels on both opposing riverbanks)extends to the
centerpoint of the river. But Duke has no rightful claim of ownership to these submerged lands,
which belong to the state of North Carolina as a matter of law. In North Carolina, "state lands"
are defined as"all land and interests therein,title to which is vested in the State of North
Carolina,or in any State agency,or in the State to the use of any agency,and specifically
includes all. . . submerged lands." N.C. Gen. Stat. § 146-64(6)(emphasis added). Submerged
lands generally may not be conveyed in fee,though the state may grant easements therein,N.C.
Gen. Stat. § 146-3(1),and may not be adversely possessed,N.C. Gen. Stat. § 1-45.1. Submerged
lands are"[s]tate lands which lie beneath . . . rainy navigable waters within the boundaries of this
State." N.C. Gen. Stat. § 146-64(7)(a).18
Even if Duke Energy could theoretically own a navigable riverbed,the law still will not
allow it to co-opt the Broad River into its compliance boundary. The General Assembly has
clarified that"[m]ultiple contiguous properties under common ownership"may be treated as a
single property for purposes of drawing the compliance boundary,but only if they are"permitted
for use as a waste disposal system."See 2013 N.C. Sess. Laws 413, § 46(a) (amending N.C. Gen.
Stat. § 143-215.1(i)). Duke Energy cannot claim, and DEQ cannot, as a matter of federal law
incorporate,the Broad River(a water of the US)into Duke Energy's`waste disposal system"
Even Duke Energy delineates the waste boundary within the perimeter of its active ash basin
impoundment(Cliffside CSA,Fig. 2-2)and does not suggest it can deposit its coal ash directly in
the Broad River.
DEQ must specify a compliance boundary for the Cliffside plant that complies with the
requirements of North Carolina law and facilitates credible measurement of groundwater
compliance. To meet that task,the compliance boundary cannot be beneath a surface water
17 This map correctly reflects that there is no compliance boundary around the unpermitted inactive 5 ash basin.
18 Ownership of these submerged lands turns on the definition of"navigability,"which is in turn defined by state
law. The test for navigability in North Carolina is whether a body of water is"navigable in fact." Gwathmey v.
State er rel.Dep't ofEnv't,Health, &Natural Res.,342 N.C.287,299,464 S.E.2d 674,681 (1995);see N.C.Gen.
Stat.§ 146-64(4)("Navigable Waters' means all waters which are navigable in fact"). "[I]f a body of water in its
natural condition can be navigated by watercraft,it is navigable in fact and,therefore,navigable in law,even if it has
not been used for such purpose." Gwathmey,342 N.C.at 301. "Navigability in fact by useful vessels,including
small craft used for pleasure,constitutes navigability in law." Id.at 300.
17

body. If that boundary were drawn correctly, it would be even closer to Duke Energy's coal ash
in the active ash basin, at a location where meeting groundwater standards will continue to
require removing the buried waste.
Finally,the permit must be amended to impose a robust groundwater monitoring program
that complies with the requirements of the Groundwater Rule. Currently the draft permit states
only that"[t]he permittee shall conduct groundwater monitoring to determine the compliance of
this NPDES permitted facility with the current groundwater standards . . . in accordance with the
sampling plan approved by the Division. See Attachment 1." Draft Permit Condition A. (47.).
But no"Attachment 1"is provided for public comment. Historically,DEQ has required Duke
Energy to monitor groundwater contamination only at the compliance boundary. But the
Groundwater Rule requires more. All lands within a compliance boundary carry the Restricted
Designation under the Groundwater Rule; and all lands carrying the Restrict Designation must
have a"monitoring system sufficient to detect changes in groundwater quality within the RS
designated area." 15A N.C.Admin. Code 02L.0104(b), (d).Under the Groundwater Rule,it is
not enough to monitor at the compliance boundary to confirm violations after they happen;rather
Duke Energy must monitor groundwater within the RS-designated compliance boundary to
detect when"contaminant concentrations increase" so that"additional remedial action or
monitoring"can be required if necessary. Id. at.0104(d).
8) DEQ Cannot Re-issue a Permit with Ongoing Violations of the Removed Substances
Provision.
The draft permit would designate a new category of"seep outfalls"designed to allow
Duke Energy to operate a wastewater treatment system that leaks pollutants at locations other
than its permitted"Outfall 002—Ash Basin"discharge point. As discussed above,by definition,
these leaks do not discharge through the permitted outfall structures, which include risers
designed to ensure that settled pollutants remain in the lagoons and water is discharged from the
top of the lagoon to the outfall discharge pipes. This change in policy impermissibly erodes a
longstanding standard condition applicable to the existing permit,the draft permit,and other
similar NPDES permits. Both the draft permit and the existing permit include an important
standard condition in Part II,known as the Removed Substances provision which provides:
"Solids, sludges. . . or other pollutants removed in the course of treatment or
control of wastewaters shall be utilized/disposed of. . .in a manner such as to
prevent any pollutant from such materials from entering waters of the State or
navigable waters of the United States."
Part 11.C.6 (emphasis added).19
This common-sense provision prohibits pollutants removed by waste treatment facilities
from escaping out into surface and groundwater. As such,the provision is an essential
implementation of state policy and good practice requiring pollutants removed from wastewater
19 Available on DEQ's website at http://portal.ncdenr.org/c/docwnentlibrary/get_file?uuid=b32t8a66-541c-4cf5-
8ba6-03e381 edb2da&groupId=3 8364.
18

through the operation of a wastewater treatment plant not to be summarily discharged into
waters,in frustration of the core purpose of the state and federal pollution control programs.
Duke Energy's own analysis has revealed that coal ash at Cliffside—the"removed
substance"—is sitting as much as 60 feet below the groundwater table, and its own models
predict up to 50 feet worth will remain submerged after dewatering. Duke Energy,
Comprehensive Site Assessment Figures (geologic cross sections) [specific citation]; Duke CAP
1,part I(cap-in-place simulations). Groundwater is a water of the State. N.C. Gen. Stat. § 143-
212(6). Coal ash is a"pollutant"regulated under the Clean Water Act. See supra. The
Department cannot authorize this ongoing violation of an existing permit term by purporting to
issue a new permit with identical terms while the facility is in violation of the existing permit.
The Department must require Duke Energy to remove the"removed substances"from the waters
of the State.
9) The Proposed 12-Mile Mixing Zone for Thermal Discharges Requires a Thermal
Variance
The draft permit purports to put Duke Energy's"point of compliance"for meeting the
North Carolina's water quality standard for temperature 12 miles downstream at the"North
Carolina/South Carolina state line." E.g.,Draft NPDES Permit,Condition A. (33). The draft
permit does this by granting Duke Energy a"mixing zone"to assimilate thermal discharges in
the Broad River that is 12 miles long,for purposes of achieving an ambient temperature of 32
degrees C(89.6 degrees F),which itself is defined in the permit as a weekly average.2° The fact
sheet then suggests that a thermal variance"is no longer necessary," and so does not require
Duke Energy to justify a renewed variance for a permit. Permit Fact Sheet at 11. This,on its
face,would allow Duke Energy to exceed the state's instantaneous temperature standard
anywhere in a 12-mile stretch of river, so long as a weekly average is obtained at the state line,
without any demonstration that this would protect water quality in the Broad River.
It appears DEQ believes it can circumvent the thermal variance procedure under the
CWA by authorizing a 12 mile"mixing zone"for Duke Energy to meet the instantaneous water
quality standard for temperature. Of course,this is not correct. North Carolina's applicable
temperature standard provides that temperature"in no case"will exceed 32 degrees C(89.6
degrees F)for lower piedmont and coastal plain waters. 15A N.C.Admin. Code 02B .0211.
Departure from this limit is allowed on a"case-by-case"basis and in a"reasonable portion of the
waterbody,"but only through a thermal variance procedure under 316 (a)of the CWA,which is
the federal thermal variance requirement. See 15A N.C. Admin.Code 02B .0208.
DEQ has no authority to ascribe a giant"mixing zone"to assimilate thermal discharge in
the Broad River,to avoid this required variance procedure from an instantaneous state water
quality standard. EPA's own NPDES Permit Writers Manual is clear that"the use and size of
the mixing zone must be limited such that the waterbody as a whole will not be impaired and
such that all designated uses are maintained. . . ." (6.2.5.2 Mixing Zone Size) (emphasis added).
'E.g.,Condition A.(1)(n.l 1:"temperature mixing zone is defined as the area extending from the intake of the
power plant to approximately twelve(12)miles downstream...."),(n.12:"The ambient temperature shall be
defined as the weekly average downstream water temperatures").
19

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

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

1
1

Heavy Metal
Accumulation in Fish of
the Broad River Near the
•
Rogers EnergyComplex • ,
t„ ,
•
Coal Ash Basins
j
Alexandra Gibbs', Sarah Kornegay', Matthew Roach', Zach Hardwick', David
Caldwell2, Guy Hutchins3, Shea Tuberty'
'Appalachian State University, 2Broad Riverkeeper, 3Cliffside, NC community member

Background
• Rogers Energy Complex formerly known as Cliffside Steam Station
opened 1940.
• Based in Mooresboro, North Carolina
• Proximity to coal fields and textile
industry
• Most recent update was in 2012 (adding :.
Unit 6) 111001"..M.11111111' laiwasor
- - _
o Extremely stringent and effective air s
qY
ualit control

• 2015 - "Do not drink" letters are sent
IHE PROGRESSIVE PULSE
from Duke Energy to all residents
within a half mile of the power plant. Groundwater wells near Marshall, Cliffside
This was rescinded in spring of 2016. coal ash basins have a thallium problem
•
• January 2016- NC DEQ classifies 3) •
wbtv corn
Cliffside coal ash basins as of "low" ONYOUR SIDE
A NEWS WEA'H[F SPORTS VIDEO TRAFNE IEOM: (OMMINITI'
and `[low/intermediate" priority for New tests find coal ash
cleanup contaminants in water wells
outside half-mile radius
• July 2016- WBTV reports hexavalent
wanes.n.sw,.r 4ffi lY r,u.f.po rn.•
111 Ni[k Odnn.r,Rtporter rorwri
chromium levels 4x-9x higher than Battle over coal ash continues in Clitfside
shelbystar.corn
standards in drinking wells within a few
miles
• March 2018- Duke Energy reports s LR?r
?NOYY < :'
PRu _ r OUR ,
...,w ,
elevated levels of Se, As, Cr, and TI in
2 c..r�►.e.i.er
yew?.ea.n..
test wells surrounding Cliffside 3 ,� .. .�
,f. ... , ;,,; , ;

The Broad River
....r, AIM�IW,
• Principal tributary of the Congaree River.
Gas oera, •
Chalons
• Flows south-easterly "°�`�
• Part of the Santee River watershed
• Samples were collected in a one mile stretch L .ion« .:, , sa%
G.
Law Maur.
downstream of the Rogers Energy Complex

Human Health Effects
Selenium- Signs of selenium toxicity occur at selenium ingestion levels of 0.7 —
7.0 mg/day while 0.2 mg/day is nutritionally adequate.Effects include nail and hair
loss, GI stress, and endocrine system disruption.
Chromium- Hexavalent chromium is considered the most toxic form because it
readily passes cellular membranes and is reduced to the trivalent form. Known
carcinogen.
Arsenic- Ingesting very high levels of arsenic can result in death. Exposure to
lower levels can cause nausea and vomiting, decreased production of red and
white blood cells, abnormal heart rhythm, and a sensation of "pins and needles" in
hands and feet.

Human Health Effects
Cadmium - Bioaccumulates in the food web. Health impacts include kidney
damage, bone demineralization, impair lung function, and increased risk of lung
cancer. Chronic low environmental exposure may have adverse effects on kidneys
and bones.
Lead - At high levels of exposure, lead attacks brain and central nervous system
and can cause death. Lead concentrations as low as 0.5 mg/L may be associated
with decreased intelligence in children.
Zinc - U.S National Library of Medicine states that oral LD50 for zinc is close to 3
g/kg body weight. High amounts of zinc may cause fever, coughing, stomach
pain, and fatigue.

Fish Health Effects
Selenium- Bioaccumulates in the food web leading to reproductive impairments
such as larval deformity and negative effects on juvenile growth.
Chromium- Elevates levels of free-roaming amino acids (present to decrease metal
toxicity), impacts fertilization, decreases glycogen stores in liver, and causes
hypertrophy.
Arsenic- Toxic levels lead to increased aggression and biomass, decreased
operculum movement, and glycolysis is inhibited. Ingestion via water is more toxic
than absorption via diet. Does not bioaccumulate.

Fish Health Effects
Cadmium - Bioaccumulates in the food web and can cause liver disease, and
nerve/brain damage, affects birth weight and skeleton development in animals.
Zinc - Adverse effects in fish include structural damages, which affect the growth,
improvement and survival of the fish. It accumulates in the gills of fish and this
designates a depressing effect on tissue respiration leading to hypoxia.
Lead - Can severely damage organs and can cause reproductive disorders,
behavioral disorders, and heart disease.

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BC 221 Bridge Crossing (F,S,W) j TPD Top Discharge (W)
j TW 2814 Riverfront Dr. Tap Water (W) PLS Runoff Seep at Powerlines (W)
i ,
RFD Riverfront Drive Seep (W) j SCS Seep at Suck Creek (W)
DSTD . 40 yds. Downstream of Toe Drainage (F,W) SC Suck Creek (F,S,W)
_i
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Collection Methodsow ....„ .., , `
NC Wildlife Resources Commission
Collecting Permit #18-SFC00038 _- _ °` j
F ..w w "iii til
a.-
j. 1 °
• Fish Assessment Al
• Electroshocking at each site
O Fish species and length where recorded •
O EPA method 3050
ryo, .
• Soil Assessment l
• Approx. 20 grams taken from each site _.y 'cy "� ` -.`'
, �
O EPA method 3050 =, --� :. '� � t: � 10*
• Water Assessment �"°' kli -:Ys:
O Approx. 250mL taken from each site
• EPA method 30154
e I

Collection Sites
12
10
o S
U
To
6
Ti
O
• a
Li: hun1 I II
221 Bridge Crossing Left Darn Right Darn Suck C reek Downstream of Toe
Drain age
• White Sucker • Margined Madtom ■ Creek Chub Redear Sunfish
• Chanel Catfish • Hogsucker • Threadfin Shad • Bluegill
■ Redbreast Sunfish ■ Long Eared Sunfish • Pumpkinseed Sunfish ■ Yellow Perch
■ Total

Recorded Temperature values
DSTD 13.9
TPD 16.4
Water Chemistry TED 16.6
PLS 111=11111111111111MINIIIIIIMIII 17.2
L
E SCS 14.1
'^ SC 14.15
Dam , 12.5
BC 13.1
0 10 15 20
Recorded pH values Temperature (C)
DST° 743
TPD 7.53
TED 6.68
PLS 7 11
d
% SCS 6 97
SC 7 16
Dam 7 27
BC 7 15
62 6.4 66 68 7 72 7 75 73
pH

04 Recorded Specific Conducitvity
RANGE OF TOLERANCE FOR DSTD MO 48.6
DISSOVED OXYGEN IN FISH
PARTS PER MILLION(PPM) DISSOLVED OXYGEN TPD , 595.411
u 1 2 3 4 5 6 7 8 9 10 TED 595.4
40 1
11111 + + + + r PLS 386 9
E SCS 65.2
E
it
‘3.11 PPM 60PPM a90PPM SC MEN 50.1
too low to sootioris 6VPPort5
Imo oopula11ons scawnoo abundant
No populations Dam 53
,fl-5 fl PPM >7n PPM
12-24 how suptwrts BC NM 43.1
eons of tolerance r prowgUacovtty
stressful conditions
0 100 200 300 400 500 600 700
Specific Conductivity
DO mg/L (ppm)
40 yds imimmimimmommim 10.96
Top Discharge IIIII 8.35
Toe Drain 111 .1111.111 751
a.
. F Power toe IMMIIIIMMMIIIM 8 6
x AO.w 10.25
a
Suck Creek 10.15
Dam 11.14
221 &dge 11.02
0 2 4 6 8 10 12
Axis Title

Arsenic (As) levels
1.2
1 High As levels lead to death in humans and
behaviors and breathing changes in fish
0.8
c -
0
ig 0.6
0.4
c
Sot IA/ I
0
White Yelbw Catf'eh White Catfish White Long Eared
Sucker Perch Sucker Sucker Sunfiti
Cadmium (Cd) levels
Eggs moo Flesh -Safe level p 45
04
0.35
a
EPA published in 2009 that the n 0.3
0 0.25
safe Cd and As level for 4 fish Y02
E 0.15
High Cd levels lead to lung issues/cancer in
humans and bioaccumulates in fish leading to 0.05
ems IMOwhole body damage White Yelbw Catfi4t White Catfish White Long Eared
Sucker Perch Sucker Sucker Sunfish
Eggs anew Flesh Safe level

Chromium (Cr) levels
3.5
3
o. `5 High Cr levels lead to cancer in humans and
2 negative effects on reproduction in fish
1.5
1 1 .2 ppm
0.5
,
0 Et
White Yelbw Catft White Catfish White Long Eared
Sucker Perch Sucker Sucker Surf
imum Eggs Flesh Safe leve
Copper (Cu) levels
16
14
a 12
a
Recommended daily io
8
5 8
High Cu levels have no effect on humans and 6
can be lethal to fish due to gill fraying and inability c 4
to transport of salts
2Ir
2 I
White Ye+bw Cat-tilt White Catfish Whrte Long Eared
Sucker Perch Sucker Sucker Sunfish
■Eggs Flesh

Lead (Pb) levels
60
— 50
o.E
40 High Pb levels have neural effects in humans
and reproductive & behavioural disorders in fish
30
v..., MM1>,1
0 20
c
O
" 10
0 111
White Yellow CatfWhite Catfil White Long Eared
Sucker Perch Sucker Sucker Sunfish
mom Eggs Flesh Safe Level Selenium (Se) levels
20
18
" 16
a 14
0 12
High Se levels cause gastrointestinal distress in 6
111
humans and larval impairments in fish0 4
1 .: ppm 2 • 11111
White Yelow Catfd, White Catfish White Long Eared
Sucker Perch Sucker Sucker Sunfish
mon Eggs Flesh Sate erei

Zinc (Zn) levels
500
asp
E 400 High Zn levels cause gastrointestinal
o 3050
0 distress in humans and effect development
11 iso in fish
c 200
150
0 100
II
So • I i. ■
White vel haw Catfish White Catfish White Long Eared
Sucker Perch Sucker Sucker Sunfish
■Eggs Fah Recommended daily intake for
adult humans is
8 mg/day

Concentration [Cd] vs. Length (mm)
02
0.19
• - Reference
s 0.16 •• • - Downstream
210.14
c 0.12
0
o 01 •
c 0.08
v
tj 0.06 -
u°O 0.04 I • •• • • •
0.020 5•• •••, •
•
100 150 200 -_
Length (mm)
Concentration [Se] vs. Length (mm)
14
.
12
210
o 8
4I
6
v 4
o •
v •
2 li • • •
Vertical bar indicates length at maturity. o -
Horizontal bar indicates previously stated 100 150 200 250 = .
Length (rnm)
safe levels

Concentration [As]vs. Length(mm)
1 ` • - Reference
•
I
1 • • - Downstream
n 0.8 a
•
• 0.6
b • • •
✓ 04 •• • •••• •• ••• •
c • • •
••
u 0.2 ••• • •
•
0
100 150 200 250 300 350 400
Length (mm)
Concentration [Pb] vs. Length(mm)
18
16
•
E 14 • • •
n 12 • •
010 ••
_ • •
e0 8
v • •
V
6
•••C •• • • •
u 4 • •
2 ! • • • • /a •
4
Vertical bar indicates length at maturity. 0 ' • • - - • • •
100 150 200 250 300 350 400
Horizontal bar indicates previously stated Length (mm)
safe levels

Concentration [Cr] vs. Length (mm)
1.8
1.6 • • • - Reference
E 1.4 - Downstream
a 1.2 •
0 • • •
• 1
• • • • •
b▪ 0.8 • • •
•
c •
X0.6 • • • • •
3 0.4 • • • •
0.2 •
0
100 150 200 250 300 350 400
Length (mm) Concentration[ZnJ vs. Length (mm)
Oro
350
300
a 250
c
0
g 200
c
a 150
c .
0
u
100
50
•
Vertical bar indicates length at maturity. •'"'';�' f ~' • ' • • •
Horizontal bar indicates previously stated 100 150 200 250 300 350 400
safe levels length (mm)

Feeding Habits
• White Sucker - Bottom feeder eating mainly small invertebrates, algae, and plant
matter.
• Bluegill - Adult bluegill diet consists of mainly aquatic insect larvae (mayflies,
caddisflies, dragonflies) but can also include crayfish, leeches, snails, and other
small fish.
• Channel Catfish - Feed mostly on snails, insects, crawfish, algae, and plants.
• Long Eared Sunfish - Mostly carnivorous feeding on aquatic insects, small
crustaceans, fish eggs, and young bass.
• Margined Madtom - Feed mainly on aquatic insect larvae.
• Red Breasted Sunfish - Feed mainly on aquatic insect larvae and small fish.

Fish Species vs Mean PPM for Toxic Metals
iz
is
Horizontal line indicates the
s
White Suck er (8j following safe levels:
a
BIueGil(8)
Cats (6) Cu - Daily intake level of 0.9
Long Eared Sunfsh(4, mg/day
E ■Creek Chub 12.
a
6 Marg reed Madtom)3. Pb - 0.3 ppm was
■Red Breasted Sunfish 13. determined by EU as level
■hogsucker(2) of concern
•Threadf in Shad(1)
4 ■Guard Shad(1)
PurripkmseedSunfish ll) Se - Safe Se level is 1 .32
■YelbwPerch(1) ppm for 4 fish meals/month
2
•
0 1 //)A1
Cu Pb se

Reference Site Fillet and Egg Levels
14
12
10
a 8
a
no
m
6
4
2
As Cr Cu Pb Se
■ White Sucker (6+1) w Margined Madtom (1) ■Creek Chub (2) Red Eared Sunfish (0+1)

Dam Site Fillet and Egg Levels
9
8
1
— 6
E
a5
a
o
� 4
an
E 3
2
1
0 KA A ■ •.u.a �i.'1■
As Cr Cu Pb Se
■ Catfish (6+1) ■White Sucker (2+2) Q Hogsucker (2) Threadfin Shad (1) ■ Blue Gill (3)
■ Red Breasted Sunfish (2) ■Gizzard Shad (1) ■ Margined Madtom(2) ■ Long Eared Sunfish (2) ■ Yellow Perch (1+1)

•
Downstream of Toe Drainage Fillet Levels
12
10
8
E
to 6
CC1A
C
4
2
As Cr Cu Pb Se
■ Long Eared Sunfish (2) ■ Blue Gill (1) Pumpkinseed Sunfish (1)

Suck Creek Fillet Levels
6
5
4
E
O.
Q.
710-
3 ■ Blue Gill (3)
z
1
0
■
As Cr Cu Pb Se

Sediment Sample Element Levels
30 • As
■ Cd
■ Cr
■ Cu
■ Pb
20 ■ Se
a
a
cm
Y
Q1
11.1 0 - -
221 Bridge Crossing Toe Drainage Suck Creek
Sample Site

Water Sample Element Levels
0.1
0.09
0.08
0.07
0.06
G
0.05
m
E 0.04
0.03
0.02
0.01
— — —
0
As Cd Cr Cu Se TI
▪ 221 Bridge Crossing (Reference) ■ Riverfront Drive Seep I Dam
Suck Creek • Suck Creek Seep ■ Powerline Seep
■Top Drainage • Downstream Toe Drainage ■ Toe Drainage
■ 2814 Riverfront Drive Tap Water

Water Sample Element Levels
0.6
0.5
0.4
E
c.
a 0.3
QO
E
0.2
0.1
11111
0 11 1 . ‘
221 Bridge Riverfront Drive Dam Suck Creek Suck Creek Powerhne Seep Top Drainage Downstream Toe Drainage 2814 Riverfront
Crossing Seep Seep Toe Drainage Drive Tap
(Reference) Water
r Pb ii Zn

Implications & Future research
• Copper, selenium and zinc had significant differences between up and
downstream
o Major impacts on juvenile development
• Almost all collected fish have elevated levels for different heavy metals
o Even some elevated levels on the reference site
• Collections from tributaries to the Broad River
• Collections of larval fish
o Both populations and development

Acknowledgements
• We would like to thank the Appalachian State University Biology and
Chemistry Departments.
• We would like to thank the Madison Malone, Broad Riverkeeper David
Caldwell and a resident of the community Guy Hutchins.
• We would also like to thank Dr. Shea Tuberty and Dr. Carol Babyak
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Appalachran
STATE UNIVERSITY

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