Sutton Station Application for Grant of Variance to Close Impoundments_20181116

DUKE
ENERGY,
November 16, 2018
VIA UPS OVERNIGHT DELIVERY AND ELECTRONIC MAIL
Mr. Michael S. Regan
Secretary
North Carolina Department of Environmental Quality
217 W Jones St
Raleigh, NC 27603
George T. Namnck
Senior Vice President
Coal Combustion Products
400 S. Tryon Street, ST06A
Charlotte, NC 28202
Phone., 980-373-8113
Emait: [e-mail]
RE: Application for Grant of Variance to Extend Deadline to Close Sutton
Plant CCR Surface Impoundments (N.C.G.S. § i3oA-309.215)
Dear Secretary Regan:
North Carolina General Statutes Section 13oA-309.215(a) authorizes the
Secretary of the North Carolina Department of Environmental Quality ("NCDEQ" or
"Department") to "grant a variance to extend any deadline under [the Coal Ash
Management Act ("CAMA")] on the Secretary's own motion, or that of an impoundment
owner, on the basis that compliance with the deadline cannot be achieved by application
of best available technology found to be economically reasonable at the time and would
produce serious hardship without equal or greater benefits to the public." Pursuant to
N.C.G.S. § 13oA-309.215(a1), where a variance is requested by an impoundment owner,
the impoundment owner must within one year prior to the applicable deadline, request
a variance including, at a minimum, information regarding (A) the site; (B) applicable
requirements; (C) applicable deadlines for which a variance is sought; (D) site -specific
circumstances supporting the need for the variance; and (E) detailed information
demonstrating that "(i) the owner has substantially complied with all other
requirements and deadlines established by [CAMA]; (ii) the owner has made good faith
efforts to comply with the applicable deadline for closure of the impoundment; and (iii)
that compliance with the deadline cannot be achieved by application of best available
technology found to be economically reasonable at the time and would produce serious
hardship without equal or greater benefits to the public."
Consistent with the requirements of subsection (a1) of N.C.G.S. § 13oA-309.215,
Duke Energy Progress, LLC ("Duke Energy" or "Company") hereby submits this
application for a variance to extend by six months the CAMA closure deadline applicable
to the coal combustion residuals ("CCR") surface impoundments at Duke Energy's
Sutton Plant ("Sutton") in Wilmington, North Carolina. Section I of this application

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addresses elements A, B, and C above; Section II addresses elements D, (E)(ii), and
(E)(iii); and Section III addresses element (E)(i). As detailed in Section II below,
NCDEQ's grant of the variance is warranted, because despite Duke Energy's application
of best available technology found to be economically reasonable, compliance with the
applicable CAMA deadline cannot be achieved due to myriad factors, including the
impacts of several permitting delays, two major hurricanes, and other unforeseeable
challenges and limitations beyond the Company's control.
I. Site; Applicable Requirements and Applicable Deadline
Sections 3.(b)(4) and 3.(c) of CAMA (Sess. L. 2014-122) require that the CCR
surface impoundments at Sutton be closed by removal of CCR by no later than August 1,
2019 ("Deadline"). For the reasons discussed in detail below, despite Duke Energy's
good faith efforts to apply best available technology found to be economically
reasonable, Duke Energy has determined that it may not be able to meet the Deadline
without producing serious hardship without equal or greater benefits to the public.
IL Site -specific Circumstances Demonstrating Why Compliance with
CAMA's Deadline Cannot be Achieved Despite Duke Energy's Good
Faith Efforts and Application of Best Available Technology
Throughout the basin excavation process, Duke Energy has encountered
numerous challenges that have cumulatively resulted in the current schedule delay at
Sutton and have impacted the Company's ability to close the Sutton CCR surface
impoundments by the Deadline. During this period, Duke Energy has consistently
exercised best efforts to minimize any delays in meeting the Deadline and has taken
important steps to overcome the various challenges and limitations presented in an
effort to recover schedule.
Under the standard set out in N.C.G.S. § 13oA-309.215, whether application of a
given technology would be commercially or economically reasonable requires that the
costs of such technology be balanced against its benefits to the public. Following this
fundamental principle over the course of the basin closure project, Duke Energy has
consistently looked for and evaluated measures to safely and reasonably minimize any
delays to the extent possible, considering at all times, the risks and benefits associated
with each of the options considered.
In October 2014, the Company developed the initial Sutton Excavation Plan and
held the Phase I excavation bidding event for excavation of the first two million tons of
CCR for rail transport, which was determined to be the amount of ash that would need

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to be transported by rail to meet the Deadline. The contractor Duke Energy selected
under this bidding event ("Contractor A") was chosen not only because it had bid the
lowest price per ton, but also because it had completeness of technical support,
engineering competence, and extensive wet ash basin experience. Due to CAMA's
aggressive completion date of August 1, 2019, the complexity of CCR excavation at
Sutton, and the expected timeline to construct an on -site landfill, the Brickhaven
structural fill in Chatham County, North Carolina was selected as the initial CCR
placement site for ash from the Sutton impoundments.
On November 13, 2014, Duke Energy submitted the initial Sutton Excavation
Plan to the Department to cover the first 12 to 18 months (Phase I) of ash basin
excavation activities. In general, the scope of work included site preparation, initiation
of basin dewatering, ash basin preparation, construction of the on -site landfill, and ash
removal from the basins. Under the initial Excavation Plan, Duke Energy would begin
placing ash in the Brickhaven structural fill —a beneficial use of CCR pursuant to
N.C.G.S. § 13oA-309.201(1), (11), and (14). Ash would be transported from the site via
rail car and also trucked to Brickhaven. Although the quantity trucked was small
relative to the quantities transported by rail, this action demonstrated Duke Energy's
commitment to commence ash excavation and placement operations as soon as feasible.
Rail operations would consist of 85 car unit trains, with rail cars averaging go tons per
car. The monthly goal was to deliver 14 loaded trains to Brickhaven per month, working
seven days per week, or approximately 107,000 tons per month.
While transporting ash to Brickhaven, Duke Energy developed simultaneously an
on -site landfill in order to meet the Deadline. Based on an engineering feasibility study
commissioned by Duke Energy, it was determined that an on -site landfill would be the
least -cost option to dispose of the ash and would have the least environmental impact.
Moreover, it was determined to be the most expedient method of ash removal from the
basins, consistent with the requirements of CAMA. North Carolina's solid waste rules,
which prohibit the commencement of construction activities without having first
secured the necessary permits, on -site landfill construction could not begin until
issuance of the Permit to Construct.
On August 7, 2015, Duke Energy submitted its application for a Permit to
Construct the on -site landfill to dispose of five million tons of coal ash from the Sutton
impoundments (Phase II). On September 3, 2015, NCDEQ sent a letter to Duke Energy
notifying the Company that the landfill application had been deemed "complete."
NCDEQ sent a follow-up letter on October 7, 2015, requesting supplemental
information, which Duke Energy provided on December 10, 2015. NCDEQ then
initiated a 6o-day public comment period, which ran from February 1i to April 15, 2016.
The Company reasonably expected that the permit would issue soon after the conclusion

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of the comment period because (i) the public meeting was not heavily attended or
contentious, (ii) NCDEQ Solid Waste Division staff had been reviewing the application
since it was submitted on August 7, 2015, and (iii) it historically took the Department
only a few weeks after expiration of the comment period to issue such permits.I
Duke Energy completed the updated 2015 Sutton Excavation Plan in November
2015 and revised the milestone dates, which reflected a reasonable expectation that it
would secure the Permit to Construct in early 2016, thereby supporting a schedule to
complete excavation of the ash by March 2019. Duke Energy was planning to move two
million tons of ash via rail and, in parallel, dispose of ash in the on -site landfill from late
January 2017 to July 2017. The Company estimated that it could excavate and move
between approximately 200,000 to 225,000 tons of ash per month, 93,000 to ii8,000
tons of which would be via truck to the landfill and approximately 107,000 tons of which
would be via rail to Brickhaven.
However, on April 7, 2016, NCDEQ announced a new policy at a town hall
meeting sponsored by the North Carolina Advisory Committee ("Advisory Committee")
of the United States Commission on Civil Rights ("USCCR"), followed by a news release
announcing a new review and approval process for all CCR landfills. Available at
https://deq nc�ov f press -release north-Carolina-take-extra-steps-protect-minoriL�--
communities. NCDEQ declared that it would go "beyond state and federal
requirements" by conducting an environmental justice review of each Duke Energy coal
ash CCR landfill application, including applications for expansions of existing on -site
CCR landfills, and ask EPA's Office of Civil Rights, the USCCR, and the Advisory
Committee to review and approve the environmental justice analysis before the permit
is issued. NCDEQ reiterated this new policy a week later in a letter to the Advisory
Committee. As a result of this new and unexpected process, on September 22, 2016,
Duke Energy finally secured the Permit to Construct the Sutton landfill, which was one
full year after NCDEQ had deemed the application "complete," and almost five months
later than the latest date on which the permit was reasonably expected.
As a result of the permit delay, Duke Energy lost the six plus months of parallel
(i.e., on -site and off -site) excavation and placement/disposal for which it had planned.
If issuance of the Permit to Construct would not have been delayed, the landfill
construction would have been ongoing over this entire period of time, which would have
created substantial margin on available space and volume to dispose of ash. The loss of
this time and the ability to create margin had a significant negative impact on the ability
to complete the project by the Deadline. Compounding this delay, Hurricane Matthew
1 North Carolina General Statutes Section 13oA-309.203 directs NCDEQ to expedite permit reviews for
permits necessary to complete basin closure activities under CAMA-6o days after the comment period on
the draft permit decision closes.

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struck eastern North Carolina on October 8, 2016, further delaying the mobilization of
landfill construction, limiting access to the work site, and interrupting rail transport of
ash to Brickhaven for 20 days due to railway flooding.
As a result of these unforeseen complications in the landfill permitting process,
coupled with historic impacts to the region and Duke Energy's operations from
Hurricane Matthew, Duke Energy's excavation schedule was delayed by over six
months. However, throughout 2017, Duke Energy continuously evaluated actions and
implemented them where the Company determined it was safe and commercially
reasonable to do so. Following is a summary of the options the Company evaluated and
the economically reasonable measures it undertook to address challenges and
limitations and achieve schedule recovery:
• Duke Energy added a third conveyor to increase its margin on rail production.
Accelerating the completion of Phase I provided crucial time to transition to
Phase II while Duke Energy awaited construction of the on -site landfill to be
completed.
• Duke Energy mobilized Contractor B—the contractor performing Phase II of ash
excavation —to the site prior to Contractor A completing Phase I to support
removal of non -ash material from the 1971 Basin, which accelerated Phase II of
basin excavation.
Due to mild weather and the Company's implementation of parallel activities,
construction of Cell 3 of the landfill was completed well in advance of the
scheduled September 1, 2017, completion date. As a result of this reduction in
the landfill construction schedule, Duke Energy was in a position to start
disposing of ash in the landfill upon receipt of the Permit to Operate. NCDEQ
issued the permit on July 6, 2017, and the Company promptly started moving ash
into the landfill on the following day, representing a 55-day acceleration of the
schedule.
Duke Energy evaluated parallel shipments of ash to Brickhaven and to the on -site
landfill but rejected this action primarily based on logistical and contractual
constraints. At that time (mid-2017), the Company could only process between
approximately 200,000 to 225,000 tons of ash per month irrespective of where it
was ultimately placed or disposed of.
• As the project schedule progressed, the landfill continued to be critical path due
to the need to get additional cells permitted and operating. Duke Energy took
efforts to expedite the landfill construction schedule and was able to complete
Cells 5 and 6 a year ahead of schedule, thereby completely removing the landfill

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from critical path. In addition, the necessary permits to operate all six cells were
secured. Critically, Duke Energy also secured the necessary permits to treat the
landfill leachate on -site. This is significant because of the volume of leachate
generated by the landfill —as more air space opened up, the volume of
precipitation infiltrating into the ash and water draining from the ash itself
increased, thus increasing the amount of leachate that needed to be treated.2 By
constructing Phase 2 of the site's wastewater treatment facility, getting the
system installed to transfer the landfill leachate to that facility, and securing the
necessary discharge permit, Duke Energy was able to simultaneously operate
three cells instead of one, thereby allowing it to increase production substantially.
• The Company evaluated the feasibility of applying additional resources in order
to increase the production rate, including expanding to night operations.
Leveraging its experience, Duke Energy increased its dredging excavation
activities up to 20 hours per day, six days a week using two 10-hour shifts or
extended shifts.
• A new large dredge was assembled, commissioned, and placed into service in
January 2018. Several measures were put into place to continuously improve
performance, as follows: (1) A one -week outage was scheduled in late April 2018
to address design and breakdown issues and warranty work on the new dredge;
(2) a second smaller dredge was placed into service in mid -April; (3) a third
dredge was made available for use as a backup; (4) operating personnel and
supervision were staffed up to support increased production; and (S) additional
rigor was added to Job Hazard Analysis and Pre job Briefs, along with increased
supervisory oversight. These measures resulted in improved dredge
performance. Duke Energy continues to monitor and review performance for
additional improvement opportunities.3
During Duke Energy's dam decommissioning application discussions with the
state, the Company was unexpectedly required by the Department to maintain a 6o-foot
buffer on the dikes until issuance of a decommissioning permit. The state's decision to
limit Duke Energy to a minimum of a 50-foot buffer of ash on the dikes of the 1971 Basin
further challenged Duke Energy's ability to meet the Deadline, despite exercising best
efforts. The buffer requirement prevented Duke Energy from excavating all of the ash
2 Trucking and treating leachate is the alternate method of managing leachate, but the extent to which this
can be done is dependent on the capacity of local vendors and municipalities. The limit is approximately
40,000 gallons per day, which would allow for only one landfill cell to be open at a time.
3 Although the operation of three dredges was evaluated, the Company rejected this option due to safety
concerns associated with the number of cables, anchors, and pipes that would be introduced.

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from the basin dikes until after a dam decommissioning permit could be secured
authorizing Duke Energy to remove the dikes. The result was that over 125,000 tons of
material remained in the buffer zone of the dikes —material that was originally
scheduled to be excavated as Duke Energy cut into the basin. Because Duke Energy was
compelled to leave the material in the buffer zone of the dikes, ash was trapped on the
dikes, which were surrounded by water. This not only prevented the Company from
more efficiently achieving its production goals as planned, but required going back to
excavate the material off the dikes from the buffer zone in a less efficient manner,
thereby extending schedule.
Although it is not possible to recover the loss of margin occasioned by the delay
in securing the necessary permit to decommission the dikes, Duke Energy saved
substantial time by plotting the coordinates of the bottom of the 1971 Basin by taking
240 sample borings prior to digging below the groundwater table. Based on those
sample borings, the Company determined the lower extent of the ash, thereby allowing
it to dredge down directly to those coordinates. Duke Energy then developed as -built
drawings certifying that it excavated to those coordinates to establish excavation had
been completed. If the Company would not have taken this action, it would have been
required to go into the basin on a barge and take too -foot grid samples, which would
have taken significant time. Moreover, if Duke Energy would have found samples that
indicated the existence of ash, it would have had to go back to do further excavation. By
getting the borings done ahead of time and delineating the GPS coordinates of the
contours of the bottom of the basin, the Company saved significant amounts of time.
To further challenge excavation operations, in late June 2018, while continuing to
dredge in the 1971 Basin, both dredges encountered trees and stumps (remnants of a
Cyprus forest) in three areas estimated to total approximately five acres, which
challenged production by requiring an average of 45 non -productive hours per week to
clean dredge cutter heads. Neither dredge type could make sufficient progress in those
areas due to continuous clogging of the dredge pumps. However, Duke Energy
promptly took interim action to redeploy dredge resources to other locations in the
basin to maintain production while developing alternatives to effectively remove stumps
and debris without compromising production and the dredge schedule. The Company
determined to bridge out over two of the three areas to allow for the utilization of
mechanical excavation to remove the stumps and CCR material from these areas
(approximately 139,000 cubic yards of material). With respect to the third area
(approximately 50,000 cubic yards of material), because there was no nearby land
access to the area, bridging was rejected as an option. Other options Duke Energy
considered included, amphibious excavation, barge excavation, and continued dredging
at a reduced rate. To help inform its decision, the Company obtained additional
bathymetric and aerial survey data. After evaluating the available options, all of which

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would result in schedule delay, Duke Energy determined that dredging through the area
would be the most technically feasible option and would result in the least impact on
schedule. Although this was the most commercially reasonable option, it, nevertheless,
resulted in a schedule loss of three weeks.
In 2018, weather continued to contribute to Duke Energy's inability to meet the
Deadline. As in 2017, Sutton experienced above -average levels of precipitation in 2018.
Through October 2018, the Wilmington area received historical levels of rainfall.
Although average total precipitation in Wilmington in the months of April through
September is 35.22 inches, actual rainfall over this six-month period in 2018 was 74.8
inches.4 Thus, over this six-month period in 2018, Wilmington received 39.58 inches
more rainfall than is normally the case. Under the extremely wet conditions presented,
ash could not be dried to the level required for transportation and placement in the
landfill.
Sutton, which was directly in the Hurricane Florence's path, experienced the full
force of the storm's winds and rainfall. By September 11, 2018, precipitation intensity
charts showed 25 to 30 inches of predicted rainfall in a concentrated portion of the
coastal area just north of Wilmington. Duke Energy took numerous planning and
engineering actions before the hurricane to prepare the site and minimize potential
storm impacts, including staffing Sutton during the storm, pre -staging equipment,
actively reducing water levels in the ponds before the storm arrived, and placing
structural materials on -site to respond quickly if repairs were needed.
Rainfall began at Sutton on September 13, with 5.7 inches falling as measured by
gauges at the site. On September 14, Sutton received an additional 11.5 inches of rainfall
in three hours, between 6:oo a.m. and 9:oo a.m.5 This rainfall significantly exceeded
the 25-year, 24-hour storm event design capacity of the run-on/run-off berm for landfill
Cells 4 and 5. On September 16, a second peak rain event occurred between the hours of
12:oo a.m, and 6:oo a.m., with the site receiving an additional 4.2 inches of rainfall.
Cumulative rainfall received by 8:oo a.m. on September 16 was approximately 30.1
inches.
On September 17, the site response team's priorities were to ensure the site was
stable and prepared to handle another rain event by cleaning out ditches, installing
4 In fact, new rainfall records were set in each of the months of May and September 2oi8. See
https;f �+2.wveather_go fcliinatc inilek.php?%fn-ilia.
5 The flooding Cape Fear River triggered the shutdown of the entire plant, including its natural gas -fired
operations --and evacuation of plant staff. The storm resulted in 1.8 million Duke Energy customers
losing power.

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check dams, pumping contact water to the ash basins, restoring power to the site to
support wastewater processing equipment operations, and developing a recovery plan to
resume ash excavation. On that same day, the construction contractor remobilized and
began to manage water in the landfill. The Department performed an inspection on
September 28 after repairs had been completed and gave permission for landfill
operations and placement of ash in the landfill to resume. Excavation and placement of
ash resumed on September 29—only 16 days after the storm began impacting Sutton.
III. Substantial Compliance with all Other CAMA Requirements and
Deadlines
In compliance with CAMA, in 2015, Duke Energy embarked on an aggressive plan
to close all ash basins across its North Carolina fleet, which is a complex task requiring
significant planning, coordination with state regulators, and dedication of resources. In
North Carolina, the Company has 31 coal ash basins subject to the requirements of
LAMA, which imposes on Duke Energy, among other things, stringent structural
stability, closure, post -closure care, groundwater monitoring, and corrective action
requirements for CCR surface impoundments, as well as permanent water supply
obligations.6
In July 2016, the North Carolina legislature amended CAMA to require Duke
Energy to rectify any deficiencies identified by, and to comply with the requirements of,
any dam safety order issued by the state for CCR surface impoundments. See N.C.G.S. §
13oA-309-213(d)(1)b. On August 22, 2016, pursuant to N.C.G.S. § 143-215.32, NCDEQ
issued Dam Safety Order 16-o1("DSO") requiring certain repairs to impoundment dams
at nine facility's subject to CAMA. Consistent with the requirements of the DSO, Duke
Energy promptly undertook the required repairs and sent the Department a letter dated
June 1, 2018, notifying it that the Company had fully complied with the requirements of
the DSO in accordance with N.C.G.S. §§ 13oA-309-213(d)(1)b. and 143-215.32.
Specifically, Duke Energy completed all of the repair plans specified by, and timely
submitted all of the completion reports to, NCDEQ. The Department conducted as -built
inspections for each item and issued Certificates of Final Approval indicating that the
required work had been completed as designed. In addition, the annual inspection of
each dam has been completed, and the Company has received Notice of Inspection
Reports documenting that no deficiencies are present.? Finally, on October 1o, NCDEQ
6 Twenty-six of these basins are also regulated under the federal CCR rule.
7 The Sutton surface impoundments were not subject to the DSO. Nevertheless, the October 17, 2017,
inspection report from the state indicates "the inspections revealed the dams to be well maintained and in
good order." Similarly, the most recent annual inspection of the Sutton 1971 and 1984 Basin dams

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made official notification to the Environmental Management Commission that Duke
Energy had complied with all dam safety requirements, as required by N.C.G.S. § 13oA-
309-213(d)(1)b.
With respect to the permanent water supply requirements imposed under CAMA,
Duke Energy provided each eligible and consenting resident with an alternative drinking
water supply (i.e., connection to a public water system or a filtration system) by the
deadline set out in N.C.G.S. § 13oA-309-211(c1). On October 12, 2018, NCDEQ issued a
press release announcing that "permanent replacement water supplies have been
provided to all eligible households near Duke Energy coal ash facilities in North
Carolina ... by the deadline of October 15, 2018 set forth in the Coal Ash Management
Act." Available at https:Zideg.nc.vovinews/Dress-releases/2 1 10 12 release- e -
completes, -permanent -replacement -water -supplies -coal -ash.
Consistent with the requirements of N.C.G.S. § 13oA-309-211, Duke Energy
submitted the groundwater assessments to NCDEQ by the applicable CAMA deadline.
In addition, the Company has submitted for six sites and continues to prepare for other
sites updated comprehensive site assessments. Updated groundwater corrective action
plans are also being submitted. These documents will be submitted to NCDEQ in
accordance with the schedule provided to Duke Energy by the Department.8 The
Company is also preparing site -specific coal ash impoundment closure plans in
accordance with the requirements of N.C.G.S. § 13oA-309-214(a)(4). These closure
plans will be submitted to the Department no later than the applicable deadline set out
in CAMA.
Finally, Duke Energy has substantially complied with all other requirements and
deadlines established under CAMA, including its annual inspection, annual reporting,
and ash beneficiation requirements.
Conclusion
The latest bathymetric survey data show that Duke Energy has dredged
approximately 760,00o cubic yards from the 1971 Basin and that there are
approximately 240,000 cubic yards of dredge material remaining. In addition, there are
occurred on August 29, 2018; no concerns or issues were reported by NCDEQ that would necessitate
issuance of a Notice of Deficiency or Notice of Violation.
8 Although not required under CAMA, Duke Energy completed installation of the accelerated remediation
system required under Paragraph II.A. of that certain Agreement to Settle and for Release of Claims
entered into among NCDEQ and Duke Energy on September 29, 2015.

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987,500 cubic yards remaining in the 1984 Basin. By August 1, 2019, Duke Energy
estimates it will have excavated and moved for placement or disposal approximately 94
percent of the total ash to be excavated and moved from the Sutton impoundments.
As detailed above, the Company's commitment to the application of best available
technology found to be economically reasonable to meet the Deadline has resulted in
significant schedule recovery, despite the many challenges and limitations with which
Duke Energy was presented throughout the excavation process. Despite these good
faith efforts to meet the Deadline, Duke Energy estimates that it requires an additional
six months. Accordingly, the Company respectfully requests that the Department grant
Duke Energy a variance to extend the Deadline to February 1, 2020, to close the
Sutton surface impoundments. Although this application requests a six-month
variance, Duke Energy is committed to continuing to undertake best efforts to evaluate
opportunities and implement commercially reasonable measures to meet the Deadline.
If you have any questions, please do not hesitate to contact Randy Hart at
randy.hart@duke-en , comom or [phone]. We appreciate your time and
consideration.
Respectfully submitted,
C;4,,/ /, o/Orn'a
George T. Hamrick
Senior Vice President, Coal Combustion Products
NCDEQ cc: Sheila C. Holman (sheila.holmanCncdenr. ov
William F. Lane (hill.lane(oncdenrZov)
Duke Energy cc: ccprecordsa duke-energy.com; Randy Hart