NC0024406_Comments_20190125

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] TEN 10TH STREET NW.SUITE 1050 Facsimile 404-521-9909
ATLANTA.GA 30309.3848
January 25, 2019
Via Regular U.S. Mail and Email RECEIVED/DENR/DWR
North Carolina Department of Environmental Quality JAN 3 0 2019
Wastewater Permitting
Attn: Belews Creek Permit/SOC Water Resources
1617 Mail Service Center, Permitting Section
Raleigh, N.C. 27699-1617
[e-mail]
RE: Comments on Belews Creek Draft NPDES Permit and SOC
Dear Sir or Madam:
On behalf of Appalachian Voices,the Stokes County Branch of the NAACP, the North
Carolina NAACP, and the Sierra Club, the Southern Environmental Law Center submits the
following comments on the draft National Pollutant Discharge Elimination System("NPDES")
permit#NC0024406 ("Draft Permit") and the draft Special Order by Consent#S 18-009 ("SOC")
for the Belews Creek coal-fired power plant. These documents were noticed for public comment
by the North Carolina Department of Environmental Quality("DEQ"), Division of Water
Resources.
As set forth below, the proposed permit violates the Clean Water Act because it: allows
unlawful amounts of toxic pollution into the Dan River and Belews Lake; authorizes a
wastewater treatment facility to malfunction and leak; substantially reduces clean water
protections; and illegally allows violations of state water quality standards.
theproposed O whichgives Duke Energyapass on pollution into Little
Moreover, p o sed SOC,
p
Belews Creek, undermines the progress DEQ has made in this and the June 2018 draft permit. It
allows Duke Energy to continue evading Clean Water Act protections for a tributary it has long
polluted without restriction.
We have submitted comments on prior draft NPDES permits and the first SOC for the
Belews Creek facility. To the extent parts of the Draft Permit remain unchanged, those
comments remain applicable and are incorporated by reference here and supplemented below.
I. Introductiion
For years, Duke Energy has unlawfully dumped untreated coal ash pollution from its
Belews Creek coal-fired power plant into Little Belews Creek,' a tributary to the Dan River.
Until now, DEQ has wrongly allowed this activity. But finally DEQ has recognized what has
The Draft Permit and SOC refer to Little Belews Creek as the "Unnamed Tributary."
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington.DC
100%recycled paper

been obvious for years: that Little Belews Creek is a water of the United States and North
Carolina that the Clean Water Act protects. Having recognized that these protections apply,
DEQ now seeks to subvert them through the new Draft Permit and the SOC.
The Clean Water Act requires Duke Energy to treat its flow of polluted coal ash effluent
to an acceptable level before dumping it into public waterways. But instead of rectifying its
prior error and reducing the dumping of pollution into Little Belews Creek, DEQ proposes
giving Duke Energy amnesty and allowing it to continue ignoring the Clean Water Act's
protections. The Draft Permit and SOC would allow Duke Energyto continue discharging
g g
untreated raw coal ash pollution into Little Belews Creek and the Dan River in levels that DEQ
admits would violate the Clean Water Act. Eventually, instead of reducing its pollution of public
waters, Duke Energy would build a lengthy pipe to discharge its untreated coal ash effluent into
the Dan River directly. Rather that addressing its earlier error and requiring Duke Energy to
reduce its pollution into North Carolina's waterways, DEQ has proposed extraordinary measures
to allow Duke Energy's pollution to continue unabated.
These legal contortions serve Duke Energy's interests but do not uphold the Clean Water
Act,do not protect waters of North Carolina and the United States, and do not reduce Duke
Energy's coal ash pollution.
II. Background
The Draft Permit and proposed SOC are the latest in a series of attempts to address the
decades of unlawful discharges at Duke Energy's Belews Creek site,without actually requiring
Duke Energy to reduce its flow of coal ash pollution. Like earlier efforts, the Draft Permit and
SOC cannot be squared with the legal protections required by the Clean Water Act.
Duke Energy stores approximately 12 million tons of coal ash in an unlined pit that sits
on the banks of Belews Lake and on top of Little Belews Creek. This coal ash extends down 65
feet deep, sitting in and leaching into the groundwater that flows through the basin. The coal ash
lagoon is over 40 years old, and its waters are held back only by an earthen dike that leaks. The
current NPDES permit for the facility allows wastewater from the lagoon to be discharged
through a single outfall incorrectly described as a point in the Dan River. But in fact,the
discharge pipe empties into Little Belews Creek, with the creek's polluted waters ultimately
flowing into the Dan River.
The Dan River has already suffered significant contamination from Duke Energy's
mismanagement of coal ash. The coal ash catastrophe at Duke Energy's Dan River plant
dumped over 20 million gallons of wastewater and 39,000 tons of coal ash into this river.
Bromide from Duke Energy's coal ash has caused carcinogens to enter drinking water systems
downstream of the Belews Creek plant in the towns of Eden and Madison along the Dan River.
Contaminants associated with coal ash—including thallium, lead, aluminum, and copper—
exceed water quality standards in the Dan River immediately downstream of the Belews Creek
coal ash site.
Belews Lake is an important water,recreational, fishing, and economic resource for
North Carolina,the region, and Stokes County. Families live along the lake. Local residents,
people who live in surrounding communities, and visitors from other areas fish, swim, and boat
2

in and on the lake. Over the years, Belews Lake has been seriously harmed by the pollution from
Duke Energy's coal ash lagoon. In 2007, EPA deemed Belews Lake a"proven ecological
damage case"due to selenium poisoning from leaking coal ash pits at the Belews Creek plant.2
Selenium contamination from the coal ash pits ultimately eliminated 19 of the 20 fish species
present in Belews Lake.3 Selenium bio-accumulates and persists in the environment,and birds
that feed in Belews Lake continue to experience adverse effects from selenium poisoning.4
On August 16,2013, DEQ filed a verified complaint with the Mecklenburg County
Superior Court which set out that Duke Energy had intentionally constructed engineered
discharges from the Belews Creek coal ash lagoon that discharge into Little Belews Creek and
the Dan River. These engineered discharges are not authorized under the Belews Creek NPDES
permit and,in fact, are expressly forbidden. Thus,Duke Energy was and is openly and
intentionally violating a clear provision of its Belews Creek NPDES permit by polluting the Dan
River with coal ash polluted water. One such unpermitted engineered discharge is papered over
in the Draft Permit as Outfall 111—a move that, as our previous comments have explained,
unlawfully attempts to grant amnesty for this pollution.
Duke Energy has faced extensive public pressure and litigation by Appalachian Voices,
the local and state NAACP, and other community organizations in North Carolina to address its
primitive unlined and leaking coal ash storage. In May of 2015, Duke Energy's operating
companies, including the owner of the Belews Creek coal ash lagoon,pleaded guilty 18 times to
9 coal ash crimes across North Carolina. These crimes included unpermitted coal ash lagoon
discharges very much like those flowing from the Belews coal ash lagoon into Little Belews
Creek. Duke Energy's operating companies paid a$102 million fine, and they are under
nationwide criminal probation. Under court orders,the criminal plea agreement, statutes,
regulatory requirements, and settlement agreements with conservation groups,Duke Energy is
now required to excavate all the coal ash from unlined coal ash pits at 8 of its 14 coal ash storage
sites in North Carolina,and all its sites in South Carolina.
But at Belews Creek and five other coal ash storage sites in North Carolina, Duke Energy
has refused to commit itself to remove the ash from its unlined, leaking,polluting,dangerous,
and primitive coal ash pits. Instead,Duke Energy intends to pump the coal ash polluted water
out of its leaking lagoons into nearby lakes and rivers and then leave its polluting coal ash in
unlined pits sitting in the groundwater, adjacent to waterbodies. Doing so will allow the coal ash
to continue polluting the state's waters forever.
Duke Energy cannot leave its polluting coal ash in place at Belews Creek under the terms
of its existing NPDES permit. The Belews Creek coal ash pit leaks,polluting the Dan River and
2 U.S. EPA Office of Solid Waste,Coal Combustion Waste Damage Case Assessments 25 (July
9,2007).
3 Rachel Cernansky,National Geographic News,Largest U.S. Coal Ash Pond to Close, But
Future Rules Still Undecided(Aug. 9,2012),available at
Imp://news.nationalgeographic.com/news/enerav/2012/08/120809-little-blue-run-coal-ash-pond-to-close.
4 Barbara Gottlieb et al., Physicians for Social Responsibility and Earthjustice, Coal Ash: The
Toxic Threat to Our Health and Environment, 12 (Sept. 2010).
3

Belews Lake in open violation of the Clean Water Act. DEQ allowed this illegal pollution for
decades, and now proposes to keep allowing the coal ash pollution through the draft NPDES
permit and the SOC.
DEQ should require Duke Energy to:
• adopt the best available technology to treat the coal ash polluted water before it is
dumped into surface waters (as DEQ required at other coal ash sites in
Wilmington and Charlotte);
• stop the leaks and discharges of polluted wastewater;
• remove the coal ash and wastewater from the lagoon;
• protect Little Belews Creek and the Dan River from coal ash lagoon effluent;
• protect Belews Lake from the discharge of superheated water; and
• protect against entrainment of fish and shellfish at the facility's water intake.
III. The Proposed Special Order By Consent(S18-009)
The Proposed SOC is an attempt by DEQ and Duke Energy to continue violating state
water quality standards in Little Belews Creek with coal ash pollution even after DEQ has
recognized that the Clean Water Act protects Little Belews Creek. DEQ has proposed a Draft
Permit with new limits(though imperfect)that Duke Energy concedes it will immediately violate
with its typical discharge into Little Belews Creek—because Duke Energy and DEQ have not
previously applied any Clean Water Act protections to the creek. DEQ cannot issue a permit it
has no intention of requiring compliance with. Instead of requiring Duke Energy to reduce its
pollution into the creek by installing a treatment system while it builds a pipe to divert the
discharge to the Dan River,DEQ has joined with Duke Energy to propose this order: an end run
around the Draft Permit that sets weaker limits than state water quality standards and the Clean
Water Act require.
Further,the Proposed SOC itself fails to comply with applicable federal and state
regulations. DEQ is proposing to allow Duke Energy to ignore the water quality protections
required by the Clean Water Act for Little Belews Creek for years in the future, including when
it dumps millions of gallons of polluted wastewater from its lagoon into the creek—even though
DEQ now acknowledges that Little Belews Creek is a water of the United States subject to the
protections of the Act.
To make matters worse,the Draft Permit and SOC include language transparently written
to serve Duke Energy's interests in the federal litigation brought against it by North Carolina
citizen groups. The SOC acknowledges that Duke Energy's pollution of Little Belews Creek
violates the Clean Water Act and North Carolina law by causing"[n]oncompliance with effluent
limits"and"caus[ing] and contribut[ing] to pollution of waters of'North Carolina. Special
Order by Consent, Stipulation 1(j)-(k). However,the SOC then contradicts itself by denying any
wrongdoing by DEQ or Duke Energy. Special Order by Consent, Stipulations 1(k)and(m).
a. Background
In conjunction with the Draft NPDES permit, DEQ has proposed a Special Order by
Consent with Duke Energy for the discharge of pollution at the Belews Creek facility. Given the
4

extensive pollution at the site and the history of disregard for the Clean Water Act by both Duke
Energy and DEQ, entering the Proposed SOC is inappropriate in this case.
The Proposed SOC would be the second such order for the Belews Creek site. The earlier
SOC, adopted in July 2018, attempted to address "non-constructed"seeps at Belews Creek and
another Duke Energy facility. Several of these unpermitted discharges flow from the coal ash
lagoon into Little Belews Creek.5
The Proposed SOC purports to ease limits in the Draft Permit for discharges into Little
Belews Creek, specifically Outfall 003 and the unlawful drain now described as Outfall 111,
which we discussed in our comments on the previous draft NPDES permit. The Proposed SOC
would allow these discharges into Little Belews Creek to exceed state water quality standards for
ten constituents: pH,chlorides, sulfates,total arsenic,total cadmium, total mercury,total
selenium,total thallium,total dissolved solids, and chronic toxicity.
b. The SOC confirms DEQ's decades-long failure to protect Little Belews
Creek and how its pollution violates the Clean Water Act.
In clear terms,the Proposed SOC enumerates Duke Energy's three decades of unlawful
pollution at the Belews Creek facility, and DEQ's continuing role in enabling this pollution. As
the Proposed SOC states:
• The Belews Creek coal ash basin was constructed on top of a tributary to the
Dan River;
• The coal ash basin has been discharging into Little Belews Creek since 1985;
• The coal ash wastewater has been substantially unchanged for the past 34
years; and
• The coal ash wastewater will prevent, and has prevented, Little Belews Creek
from complying with North Carolina's state water quality standards.6
In short,DEQ has allowed Duke Energy to improperly and unlawfully pollute Little
Belews Creek for the past 34 years, and is only now protecting the creek because it cannot avoid
doing so. Despite these incriminatory admissions and subjecting Little Belews Creek to
unlawful levels of pollution for over three decades, DEQ and Duke now jointly claim that they
have done nothing wrong.'
The proposed discharge is clearly prohibited by the Clean Water Act. "[I]t is the national
policy that the discharge of toxic pollutants in toxic amounts be prohibited."33 U.S.C.
§ 1251(a)(3). No NPDES permit can be issued if the permit"cannot ensure compliance with the
applicable water quality standards"or if the permit does not"provide for compliance with the
applicable requirements"of the Clean Water Act and its regulations. 40 C.F.R. § 122.4(d)and(a)
5 Special Order by Consent S 18-004 at Attachment A.
6 Special Order by Consent S 18-009 at Stipulations 1(c), (d), 1), (k), and(j).
7 1d. at Stipulation 1(m).
5

(emphasis added). As the Proposed SOC admits,8 the discharge into Little Belews Creek would
plainly violate these requirements.
Yet DEQ and Duke Energy attempt to use the SOC as an end run around the Clean Water
Act, and to issue a permit that is plainly illegal and contrary to the statute's requirements to
ensure water quality is protected. Duke Energy must be required to treat its wastewater to
remove pollutants,not be given a free pass to continue dumping toxic wastewater into the
stream. The Proposed SOC is the latest example of DEQ undermining and distorting the Clean
Water Act to accommodate Duke Energy's ongoing pollution at the Belews Creek site.
The Proposed SOC's stipulations lay bare the pattern of misdeeds at the site and the
unlawful pollution DEQ has ignored for decades. The Proposed SOC's denial of any wrongdoing
demonstrates DEQ's complete lack of accountability for previous permitting mistakes, and its
proposed pre-approval of unlawful water quality violations shows that DEQ is again willing to
sacrifice North Carolina's water quality to suit the desires of Duke Energy.
c. The SOC does not meet federal requirements for compliance schedules.
The Proposed SOC is governed by federal Clean Water Act regulations related to
compliance schedules. Under 40 C.F.R. § 122.47(a), a permit may rely on a compliance
schedule in issuing a permit"where appropriate,"and EPA guidance lists a number of factors to
consider in determining whether a compliance schedule is appropriate.Under these factors, a
compliance schedule is not appropriate here.
The EPA"appropriateness"factors include"how much time the discharger has already
had to meet the water quality based effluent limitation(s)under prior permits"and "whether the
discharger made good faith efforts to comply with pollution limits in prior permit(s)."9 Based on
the actions of Duke Energy and DEQ,a compliance schedule is wholly inappropriate here. For
decades,Duke Energy has allowed unlawful amount of coal ash pollution to enter Little Belews
Creek from its leaky coal ash basin,violating state water quality standards in the creek. These
discharges include a constructed drain not covered by the facility's NPDES permit. This
pollution was abetted by DEQ,which improperly treated Little Belews Creek as a discharge
channel, erroneously located the compliance point downstream in the Dan River, and failed to
require Duke Energy to eliminate the flow of pollutants from the coal ash lagoon into surface
waters. Duke Energy and DEQ stipulate to these facts in the Proposed SOC.
Throughout the past three decades and several prior iterations of the Draft NPDES
permit, Duke Energy has not undertaken any actions to address these failings or reduce its
discharge of coal ash pollution into Little Belews Creek. To the contrary, it has worked with
DEQ to weaken and undermine the Clean Water Act's protections so its pollution can continue.
Nothing in the present circumstances support a finding that a compliance schedule is appropriate.
8 Id. at Stipulations 1(k)and(j).
9 Memo from J. Hanlon,Director of EPA's Office of Wastewater Management to A. Strauss,
Dir. of the Water Division, Region 9(May 11,2007)(available at
https://www.epa.gov/sites/production/files/2015-09/documents/memo complianceschedules may07.pdf).
6

d. The Belews Creek site is not eligible for an SOC under state regulations.
g t�
The Proposed SOC also does not comply with 15A NCAC 2H.1206. This state
regulation sets forth criteria that Duke Energy must meet before DEQ can grant an SOC,and the
Proposed SOC fails in two respects.
First, like the"appropriateness"requirements found in the federal regulation,North
Carolina's SOC regulation requires certain elements to demonstrate that a polluter is eligible for
an SOC. Specifically, an SOC must include a showing: (i)that noncompliance with water
quality standards are"not due to a failure by the permittee to properly operate,manage and
maintain the wastewater treatment system"; (ii)that the"wastewater treatment system is being
operated in such a wayas to attain the highest degree of treatmentpossible under the existing
g �'
conditions"; and(iii)that all reasonably available low-capital-cost interim improvements have
been evaluated, even though they may not be directly related to the final treatment option." 14A
NC ADC 2H.1206(b)(1).
As described above,the unlawful pollution of Little Belews Creek is a result of Duke
Energy's failure to operate its coal ash lagoons as required by the Clean Water Act, and DEQ's
failure to enforce the law. These failures and omissions have occurred for decades, and fall well
short of both the spirit and technical requirements of 14A NC ADC 2H.1206(b)(1). The coal ash
lagoon is leaking pollution into the creek via seeps and via groundwater flows, in violation of the
longstanding requirement in the current NPDES permit to maintain the integrity of the
wastewater treatment facility by preventing pollutants from the coal ash settled in the basin from
entering waters of the State,and in violation of the requirement to properly operate and maintain
the facility. Moreover,Duke Energy has constructed a pipe to discharge its wastewater into this
water of the United States for many years without a permit authorizing the discharge,willfully
violating the requirements of the Clean Water Act.
Second, DEQ apparently has done nothing to require Duke Energy to evaluate installing a
wastewater treatment system for its discharges into Little Belews Creek. The SOC application
materials contain no evidence regarding the feasibility of additional treatment. Given the
circumstances, DEQ should not allow Duke Energy to deviate from the water quality protections
required by the Clean Water Act. To allow this without exhausting every available alternative
first is even more egregious.
Third,the Proposed SOC fails to comply with the North Carolina regulation in another
respect. Under 14A NC ADC 2H.1206(c)(1),the SOC's interim effluent limitations"must be
based on the optimum expected efficiency of the existing treatment system." As described
below in sections IV(ii)and(iii),prior draft permits for this facility included more protective
discharge limits for certain pollutants. For example,the Draft Permit contains weaker limits for
aluminum,copper, and selenium than earlier permits, and removes the limits on BOD and fecal
coliform found in earlier permits altogether. The failure to require effluent limits based on
"optimal expected efficiency"violates the regulation as well.
IV. The Draft NPDES Permit(#NC0024406)
Even apart from the SOC's undermining its pollutant limits,the Draft Permit itself fails
to protect waters of North Carolina from the facility's coal ash pollution in several ways.

a. The Draft Permit fails to impose adequate limits and monitoring
requirements for discharges arising from"normal operations,"decanting
and dewatering.
i. The Draft Permit improperly weakens water protections, where it
should instead impose stricter requirements.
Despite the history of unlawful coal ash pollution at the Belews Creek facility,the Draft
Permit is in many respects weaker than previous drafts. It would allow even higher
concentrations of toxic pollutants to discharge to nearby waters than prior drafts of the permit.
For the pollutants identified below,DEQ should at the very least restore the previously proposed
effluent limits.
Coal ash impoundments such as the Belews Creek facility are a proven source of toxic
pollutants discharged to nearby waters, as set forth in our prior comments. As EPA has
concluded, "steam electric power plant wastewater is not a benign waste,"10 and coal ash ponds
at steam electric power plants"accumulate high concentrations of toxic pollutants."" Based on
a painstaking, years-long study explaining the need for more effective waste treatment controls,
EPA found"substantial"evidence that pollution from coal combustion wastewater discharges to
nearby waters can present a threat to human health.12
Coal ash waste at the Belews Creek facility are known to contain toxic pollutants such as
arsenic,mercury,selenium, lead, and copper.13 Yet the draft permit's discharge limits for these
and other toxic pollutants are less stringent than prior drafts of the permit in this renewal cycle.
Arsenic is a well-known cause of cancer, including lung cancer, skin tumors, and internal organ
tumors, and is associated with heart problems,nervous system disorders, and stomach ailments.
EPA estimates that nearly 140,000 people per year experience increased cancer risk due to
arsenic in fish from coal-fired power plants.14 Mercury is a highly toxic compound and
dangerous even in small concentrations as it bioaccumulates and impairs brain development in
children and causes nervous system and kidney damage in adults. EPA estimates that almost
1°EPA,ENVIRONMENTAL ASSESSMENT FOR THE EFFLUENT LIMITATIONS GUIDELINES AND
STANDARDS FOR THE STEAM ELECTRIC POWER GENERATING POINT SOURCE CATEGORY,Docket
No. EPA-821-R-15-006(Sept. 2015)(hereinafter, "2015 ELG EA"),at 3-1 (emphasis added)
(available at https://www.epa.ttov/sites/production/files/2015-10/documents/steam-electric-envir 10-20-15.pdf.)
" See id. at 2-3.
121d. at 1-1.
13 See, id. at 2-2(Table 2-1), 3-3 (Table 3-1), 3-14(Table 3-2).
14 EPA,BENEFIT AND COST ANALYSIS FOR THE PROPOSED EFFLUENT LIMITATIONS GUIDELINES
AND STANDARDS FOR THE STEAM ELECTRIC POWER GENERATING POINT SOURCE CATEGORY,
Docket No. EPA-HQ-OW-2009-0819-2238 (Apr. 2013)at 3-6(available at
https://nepis.epa.gov/Exe/ZvNET.exe/P I0OMZC 1.TXT?ZyActionD=ZvDocument&Client=EPA&Index=2011+Thru+2015&Doc
s=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntrv=&OField=&OFieldYear=&OFieldMonth
=&OFieldDay=&IntOFieldOp4&ExtOFieldOp=0&XmlOuery=&File=D%3A%5Czyfiles%5Clndex%20Data%5C 1 I thru 15%5
CTxt%5C00000016%5CP 100MZC 1.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-
&MaximumDocuments=l&FuzzvDegree�&ImageOuality=r75rt8/r75 Q8/x 150v 150g 16/i425&Displav=hpfr&DefSeekPage=x&
SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=l&ZyEntry=l&SeekPage=x&ZyP
URL.)
8

2,000 children per year are born with lower IQs because of mercury in fish that their mothers
have eaten.15 Lead, another well-known toxic known to leach from coal ash, can delay
embryonic development, suppress reproduction,and inhibit fish growth.16 Human exposure to
lead in drinking water can cause serious damage to the brain,kidneys,nervous system, and red
blood cells.
As set forth in previous comments,the Belews Creek facility has a history of selenium
pollution from coal ash waste. In 2007, EPA classified Belews Lake as a"proven ecological
damage case" as a result of the extreme selenium pollution from the facility and its impact on
wildlife in the lake. Selenium is acutely poisonous to fish and aquatic life in even small doses;
concentrations below 3-8 micrograms per liter(parts per billion, or µg/L)can kill fish, and lower
concentrations can leave fish deformed or sterile.17 Selenium also bioaccumulates and,as
vividly illustrated at Belews Lake, can impair ecosystems by interfering with fish reproduction.
For humans, even short-term exposure to selenium can cause hair and fingernail changes,
damage to the peripheral nervous system, and fatigue and irritability, whereas long-term
exposure can damage the kidneys, liver, and nervous and circulatory systems. Copper
contamination can lead to reproductive failure, gill damage, and reduced sense of smell in fish.
Human exposure to high concentrations of copper can cause nausea, vomiting,diarrhea, and liver
and kidney damage.
Furthermore, as set forth in previous comments, the Belews Creek facility is and has been
discharging bromide,polluting the public drinking water supply for the citizens of Madison and
Eden,and perhaps others. Bromide is naturally present in coal, and is highly soluble in water.18
EPA has concluded that once discharged from steam electric power plants,reaction by bromide
with other constituents in water is cause for concern from a human health standpoint. 9 The
bromide ion in water can form brominated disinfection by-products "DBPs" when drinking
("DBPs")
water plants use certain processes including chlorination and ozonation to disinfect the incoming
source water for human consumption. According to EPA, some DBPs from chlorinated water are
associated with human bladder cancer,and that bromine-substituted DBPs"are generally thought
to have higher risks of cancer and other adverse human health effects compared to DBPs
containing chlorine instead of bromine...s20 Because bromides in surface waters can react with
organic matter in the surface water to form DBPs at drinking water treatment plants,21 the
documented release of bromides from the Belews Creek facility is particularly dangerous, and
must be eliminated to ensure that these threats to public waters and human drinking water
sources ceased and do not recur.
The Belews Creek ash pond contains all of these pollutants and a host of others,
including beryllium, lead,barium, cadmium, chromium,nickel, silver and zinc.
15 See id. at 3-13.
16 2015 ELG EA at 3-3.
t72015 ELG EAat3-5.
18 See supra note 10,2015 ELG EA at 3-11.
19 See id. at 3-10.
20 Id.
21 See id. at 3-11.
9

Given the long history of coal ash pollution at the Belews Creek site,the permit must
impose more stringent limits on the discharge of toxic pollution into the waters surrounding its
ash dump. It is well-known that once coal ash pollutants are released to nearby waters, their
harmful effects are persistent and widespread—precisely the sort of harm the Clean Water Act is
intended to reduce, and eventually eliminate via ever more stringent permits with improvements
in technology. See 33 U.S.C. §§ 1251(a), (a)(6). As EPA recognized, "[a]fter being released
into the environment, [coal ash] pollutants can reside for a long time in the receiving waters,
bioaccumulating and binding with the sediment. There is documented evidence of slow
ecological recovery as a result of these pollutant discharges . . . Some impacts might not be
realized for years due to the persistent and bioaccumulative nature of the pollutants released."22
In addition, EPA has found that"pollutant loadings from discharges of[these wastestreams] are
impacting areas beyond the immediate receiving waters and pose a threat to wildlife and human
populations in thousands of river-miles downstream from steam electric power plants. . "23
All told,EPA has found that discharges from steam electric power plants alone contribute
over one third of the toxic pollutants discharged from industrial sources throughout the nation, an
amount equal to almost three million toxic-weighted pound equivalents released to the
environment annually, which"can cause considerable harm to surface waters,aquatic life,
wildlife, and human health."24 The discharges of toxic industrial pollution from coal-fired plants
such as the Belews Creek facility dwarf those from all of the other top ten polluting industries,
including the pulp and paper industry,petroleum refining,nonferrous metals manufacturing,
fertilizer manufacturing, and organic chemicals and plastics manufacturing industries.25
Yet,despite EPA's conclusion that coal-fired steam-electric power generation facilities
like Belews Creek are by far the leading polluter of toxic industrial water pollution,the Draft
Permit is in many respects weaker than previous versions put out for public comment in 2016,
2017, and 2018, as set out below.
ii. The Draft Permit is weaker than the draft version issued by DEQ
under the McCrory administration.
For example, compared with prior drafts put out for public comment by Governor
McCrory's DEQ in 2016 and 2017,the current draft proposes effluent limits and conditions that
are even weaker in several respects.As summarized in the table below, the current Draft Permit
substantially weakens effluent limits for total copper during normal operations and decanting,
imposing effluent limits that are more than 33 times less stringent than the allowable
concentration proposed in the 2016 and 2017,while removing entirely effluent limits and
monitoring for biological oxygen demand("BOD") and fecal coliform for these discharges. For
dewatering operations,the current permit proposes limits for aluminum concentrations that are
almost 27 times less stringent than that of the limits imposed in the draft previously issued for
public comment in 2017.
22Id. at 3-1.
23 Id. at 9-1 (emphasis added).
24Id. at 3-12.
25 See 2015 ELG EA at 3-15.
10

Discharge Pollutant 12/2018 2016 and 2017 Notes
Draft Permit limit draft permit limits
Ordinary Total Copper 1.0 mg/L 29.8 µg/L(Monthly Where 1 mg/L
operations/ Average)equivalent equals 1,000 µg/L,
decanting to 0.0298 mg/L) the current Draft
Permit proposes to
authorize the
discharge of copper
34.2 µg/L(Daily at concentrations
Max)the equivalent more than 33 times
to 0.01047 mg/L that of the 2016
permit
Dewatering Aluminum 174.2 mg/L 6.5 mg/L(2017 draft Currently proposed
(Outfall 006) permit limit for effluent limit is
Outfall 003) nearly 27 times
less stringent than
2017 permit limit
Weakening of these limits in this permit under the current administration of Governor
Cooper is a disappointment for the citizens of North Carolina. Copper is a key metal and toxic
bioaccumulative pollutant found in steam electric power plant wastewater"associated with
documented health and environmental impacts" according to EPA.26 Copper contamination can
lead to reproductive failure, gill damage, and reduced sense of smell in fish.27 Human exposure
to high concentrations can cause nausea,vomiting, diarrhea, and liver and kidney damage.28
Yet,the current Draft Permit authorizes the release of copper during"normal operations" and
decanting of the ash pond at a concentration that is more than 33 times more polluting than levels
previously proposed in the 2016 and 2017 draft permits.
Aluminum, another key metal and toxic bioaccumulative pollutant associated with coal
ash wastewater, can lead to the inability of fish to maintain the balance of their fluids and is
associated with damage to amphibian eggs and larvae, according to the EPA.29 Human exposure
to aluminum in high concentrations is linked to Alzheimer's disease.30 Yet, the current Draft
Permit weakens discharge limits for this toxic metal by about 27 times the pollutant discharge
limits proposed by DEQ under the previous Administration.
26 See id. at 3-3.
27 See id.
28 See id.
29 See id.
30 Id.
11

iii. The Draft Permit is weaker than previous versions issued by DEQ
under this administration.
Making matters worse, the Draft Permit is weaker in important respects than the proposed
permit that DEQ under the current Administration released just six months ago. For instance, the
following effluent limits in the current Draft Permit have either been entirely eliminated or are
less stringent than previously proposed permits, allowing more toxic pollutants to be discharged
than prior draft permits would have allowed.
Discharge Pollutant 12/2018 2016 and 2017 Notes
Draft Permit limit draft permit limits
Ordinary Total Copper 1.0 mg/L 7.88 µg/L(Monthly Where 1 mg/L for
operations/ Average)the copper equals a
decanting equivalent to 0.00788 concentration of
(Outfall 003/ mg/L) 1,000 µg/L,the
003A) current Draft Permit
10.47 µg/L(Daily proposes to authorize
Max)the equivalent the discharge of
to 0.01047 mg/L copper at
concentrations more
than 126 times that
of the June 2018
draft permit
Dewatering Total Arsenic (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 10 µg/L(Monthly whatsoever
Average)
340 µg/L(Daily
Max)
Dewatering Chlorides (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 250 mg/L whatsoever
Dewatering Fluoride (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 1.8 mg/L whatsoever
Dewatering Chromium VI (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 11 µg/L(Monthly whatsoever
12

Discharge Pollutant 12/2018 2016 and 2017 Notes
Draft Permit limit draft permit limits
Average)
16 µg/L(Daily Max)
Dewatering Total Zinc (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 125.7 µg/L whatsoever
Dewatering Total Nickel (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 25 µg/L(Monthly whatsoever
Average)
335.2 µg/L(Daily
Max)
Dewatering Total Thallium (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 2 µg/L whatsoever
Dewatering Total Barium (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
whatsoever
No limits 1 mg/L
Dewatering Sulfates (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
No limits 250 mg/L whatsoever
Dewatering Total Antimony (Outfall 006A) (Outfall 003) Current permit
imposes no
restriction
whatsoever
No limits 5.6 µg/L
Dewatering Total Copper (Outfall 006A) (Outfall 003) Current permit is
over 20 times less
211.3 µg/L 7.88 µg/L(Monthly stringent for
(Monthly Avg.) Avg.) copper
231.4 µg/L(Daily 10.4 µg/L(Daily
13

Discharge Pollutant 12/2018 2016 and 2017 Notes
Draft Permit limit draft permit limits
Max) Max)
t Total Selenium (Outfall 006A (Outfall 003) Current permit is
Dewatering
g
over 20 times less
134 µg/L 5 µg/L(Monthly stringent for
(Monthly Avg.) Avg.) selenium
1,237 µg/L(Daily 56 µg/L(Daily Max)
Max)
Dewatering Total (Outfall 006A) (Outfall 003) Current permit is
Molybdenum nearly 27 times
4,289 µg/L 160 µg/L less stringent
Dewatering Total Aluminum (Outfall 006A) (Outfall 003) Current permit is
nearly 27 times
174.2 µg/L 6.5 µg/L less stringent
Dewatering Total Lead (Outfall 006A) (Outfall 003) Current permit is
over 20 times less
78.9 µg/L 2.94 µg/L(Monthly stringent for lead
(Monthly Avg.) Avg.)
1,668 µg/L(Daily 75.48 µg/L(Daily
Max) Max)
003A(new Total Copper 1.0 mg/L 7.88 µg/L(Monthly Where 1 mg/L for
lined retention Average)the copper equals a
basin) equivalent to 0.00788 concentration of
mg/L) 1,000 µg/L,the
current draft permit
10.47 µg/L(Daily proposes to authorize
Max)the equivalent the discharge of
to 0.01047 mg/L copper at
concentrations more
than 126 times that
of the June 2018
draft permit
As illustrated above, the Draft Permit retreats from the numerical effluent limits proposed
by DEQ's previous drafts of the permit as to many pollutants, while completely abandoning
limits for others. For instance, selenium concentrations of 3-8,ug/L are demonstrably toxic and
14

lethal to fish according to EPA.31 Indeed, Belews Lake is still slowly recovering from the near
eradication of fish species as a direct result of the ash pond's selenium pollution. Accordingly, it
is simply unconscionable for DEQ to relax the allowable dumping of selenium during
dewatering to 134 pg/L (monthly average) and 1,237,ug/L (daily maximum)to the waters
surrounding the Belews Creek plant, from previously proposed limits of 5 µg/L and 56 µg/L,
respectively.32 Figure 1 (next page), illustrates the massive increases in allowable selenium
pollution allowable under the currently proposed permit, versus limits imposed by the prior
permit put out for public comment in June 2018.
Similarly, as set forth above, the current Draft Permit would allow massive increases in
the permissible concentrations of total copper and aluminum discharges to the waters
surrounding Belews, at over 20 to over 100 times the levels previously imposed in permits
proposed earlier by DEQ, despite well-recognized averse environmental impacts.33
Figure 134
Allowable Selenium Limits (dewatering)
Permit Comparison
1,237
00
1000
O
8
, •Daily Maximum
a.+
c
134
O• 100
u 56 ■Monthly
Average
d
-$
10
EPA-Deemed
—
toxic to lethal
5
(aquatic life)
1 - ,
Previous Draft Permit Current Draft Permit
(June 2018)
Permit Version
31 See 2015 ELG EA at 3-5.
32 Compare Draft Permit at p. 8 with June 29, 2018 draft permit at p. 8.
33 See, e.g., 2015 ELG EA at 3-3.
34 Attachment 1, Full-page illustration of Figure 1.
15

iv. The Draft Permit must require more frequent monitoringto enable
9 .�' 4
DEQ and the public to meaningfully ensure compliance.
Under the Clean Water Act, the permit must require Duke Energy to report data
necessary to ensure compliance with the Clean Water Act. Section 402(a)(2)of the Act provides
that"[t]he Administrator shall prescribe conditions for such permits to assure compliance . . ."33
U.S.C. § 1342(a)(2). Federal regulations provide that permits must specify the type, intervals,
and frequency of monitoring"sufficient to yield data which are representative of the monitored
activity;"that the DEQ Director shall establish conditions to ensure compliance with all
applicable Clean Water Act requirements, including monitoring; and that monitoring
requirements should include measurements as appropriate to assure compliance with permit
limitations. 40 C.F.R. § 122.48(b), 122.43(a), and 122.44(i).
Courts have interpreted these provisions to mean what they say:NPDES permits must
include monitoring and reporting requirements that enable regulators—and the public—to
determine compliance. "First and foremost,the Clean Water Act requires every NPDES
permittee to monitor its discharges into the navigable waters of the United States in a manner
sufficient to determine whether it is in compliance with the relevant NPDES permit."Natural
Res. Def. Council v. L.A., 725 F.3d 1194, 1207(9th Cir. 2013) (emphasis in original). Permits
that fail to require effective monitoring are unlawful.Id.
The Draft Permit's insufficiently frequent monitoring makes it impossible to detect, and
therefore enforce,violations of daily maximum and even monthly average limits on Duke
Energy's pollution into the Dan River and Little Belews Creek,until well after that pollution is
dumped into the receiving waterbody. Specifically, almost all numeric limits in the Draft Permit
are given as daily maximums and monthly averages.35 But for the flue gas desulfurization
("FGD")discharge at Outfall 002,and ash pond decanting from Outfall 003, the Draft Permit
requires only quarterly or monthly monitoring via grab samples. If just one sample is taken per
month—much less once per quarter—there is no reasonable way to obtain a meaningful monthly
"average,"which inherently relies upon a comparison of more than one sample. And these
monthly and quarterly monitoring requirements cannot possibly indicate whether Duke Energy
has exceeded a daily maximum on pollution,because the lack of daily data renders it impossible
to ascertain whether limits were exceeded on a per-day basis. DEQ has provided no information
or explanation in the Draft Permit or fact sheet justifying how these inadequate monitoring
requirements can even arguably overcome these fundamental and commonsense flaws.
Because this infrequent sampling simply does not, and cannot, provide"sufficient"data
so that DEQ and the public can possibly determine whether Duke Energy is complying with
monthly or daily limits, the Draft Permit violates the Clean Water Act. 40 C.F.R. § 122.48(b),
122.43(a), and 122.44(i).
Simply put, absent meaningful reporting requirements,the Draft Permit attempts to
provide Duke Energy with yet another way to can dump toxic pollution to the waters
surrounding the Belews Creek coal ash pond beyond the reach of meaningful enforcement,
contrary to the requirements of the Clean Water Act. To "assure compliance"with permit limits
35 See, e.g., Draft Permit at 6(Outfall 003).
16

and other conditions, 33 U.S.C. § 1342(a)(2),the Draft Permit must be revised to increase the
frequency of monitoring for"normal operations" from monthly to at least weekly. Likewise, the
frequency of monitoring for decanting and dewatering operations must be increased from weekly
and monthly monitoring as currently proposed to continuous monitoring during these particularly
intensive wastewater discharge operations.
b. DEQ cannot delay or undo vital ELG protections against toxic industrial
pollution.
Even though Duke Energy has already installed treatment technology at the Belews
Creek facility,the Draft Permit unreasonably and unlawfully delays deadlines to comply with
federal protections against toxic pollution.
As DEQ is aware, on November 3,2015, EPA promulgated the Steam Electric Power
Plant Effluent Limitations Guidelines Rule, 80 Fed. Reg. 67,838 (the"2015 ELG Rule").
Among other things,the 2015 ELG Rule addressed effluent limitations and standards for FGD
wastewater. See id. at 67,841-42. The 2015 ELG Rule required most power plants to comply
with the effluent limitations "as soon as possible"after November 1,2018. Id. at 67,854. In
response to requests from the utility industry, EPA has since pushed that compliance date to
November 1, 2020.36 The particular compliance date for each plant is imposed in its NPDES
permit. See 40 C.F.R. § 423.11(t). Prior to.EPA's long-overdue rulemaking in 2015,the federal
agency concluded, after an intensive study of the immense harmful impact that coal-fired power
plants inflict on surrounding waters, that the 1982-era effluent limitations guidelines were"out of
date"and did"not adequately control the pollutants(toxic metals and other)discharged by"
power plants, "nor[did] they reflect relevant process and technology advances that ha[d]
occurred in the last 30-plus years." 80 Fed. Reg. 67,838, 67,840(Nov. 3,2015).
Nevertheless, as set forth in commenters' prior comments, and as DEQ once again
proposes in the draft permit, DEQ improperly delays—and threatens to undo—long-overdue
requirements for the use of modern technological measures that will finallybegin to reduce the
q g �
amount of toxic pollution that has been discharging to the waters surrounding the plant for
decades. Specifically,the Draft Permit improperly delays compliance with the 2015 ELG Rule
until November 1, 2020 for FGD wastewater, a particularly toxic wastestream. As we explained
in our July 2018 comments,this delay is an unreasonable and unjustified retreat from the
November 2019 deadline that the first two draft permits proposed. DEQ repeats this mistake
here by again proposing a delay until November 2020,putting off crucial protections against
toxic pollution for another year.
But this delay is all the more unreasonable when DEQ knows that treatment technology is
not only available but actually in place at Belews Creek.37 As DEQ recognizes,the addition of
membrane ultrafiltration to the existing chemical precipitation and biological treatment system
for the FGD wastewater produced at Belews Creek"has the potential to remove significant
amounts of the arsenic, mercury and selenium that remains following BAT-level treatment."38 As
36 82 Fed. Reg.43,494 et al.
37 Draft Permit at p. 5.
38 Fact Sheet at p. 3.
17

of August 2018, Duke Energy had already installed this technology at Belews Creek.39 Duke
Energy told DEQ the system would begin operating in September 2018.40 There is simply no
valid reason to delay compliance any longer when Duke Energy already has the technology
required to comply. DEQ should instead require Duke Energy to meet the ELG limits for FGD
wastewater by November 2019, regardless of subsequent efforts by EPA to weaken the
standards, given Duke Energy's demonstrated capability to meet the more stringent standards
with modern technology.
Furthermore, and as set forth in commenters' prior comments,the Draft Permit once
again contains a reopener provision that purports to enable DEQ to modify the permit"if
changes are made"to the ELG Rule by the EPA, a thinly-veiled mechanism for DEQ to later
undo the more stringent protections entirely if EPA weakens the federal regulation.41
Both the delay and the reopener provision are not just unreasonable but contrary to the
Clean Water Act. The Clean Water Act requires NPDES permits to include effluent limits based
on the performance achievable through the use of statutorily-prescribed levels of technology that
"will result in reasonable further progress toward the national goal of eliminating the discharge
of all pollutants."33 U.S.C. § 1311(b)(2)(A)(i),see also id. § 1311(b)(1)(A). Technology-based
effluent limitations("TBELs")constitute the minimum level of control that must be included in a
permit"regardless of a discharge's effect on water quality."Am. Petroleum Inst. v. EPA, 661
F.2d 340, 344(5th Cir. 1981).
For sources constructed prior to the passage of the Clean Water Act, such as the Belews
Creek plant, discharges of pollutants must be eliminated or controlled through application of
Best Available Technology("BAT"). See 33 U.S.C. § 1311(b)(2)(A). In accordance with the
Act's express goal to eliminate all discharges of pollutants,BAT limits"shall require the
elimination of discharges of all pollutants if the Administrator finds, on the basis of information
available to him . . . that such elimination is technologically and economically achievable . . . ."
33 U.S.C. § 1311(b)(2)(A).
The requirement to meet the BAT standard is ongoing; it compels polluting industries to
meet ever more stringent limitations on the path towards complete elimination of water pollution.
See NRDC v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987). With each renewal of a NPDES permit,
permitting agencies must reconsider whether further pollution reductions and technologies are
attainable. The objective of the law is continuous,rapid improvement:
The BAT standard reflects the intention of Congress to use the latest
scientific research and technology in setting effluent limits, pushing
industries toward the goal of zero discharge as quickly as possible. In
setting BAT, EPA uses not the average plant, but the optimally operating
plant, the pilot plant which acts as a beacon to show what is possible.
39 Attachment 2, Letter from Joyce Dishmon, Duke Energy, to Sherri Knight, DEQ (Aug. 8,
2018).
401d.
41 Draft Permit at p. 5,Note 2.
18

Kennecott v. EPA, 780 F.2d 445,448 (4th Cir. 1985) (citing 1 Legislative History of the Federal
Water Pollution Control Act of 1972, 798 (Committee Print compiled for the Senate Committee
on Public Works by the Library of Congress), Ser.No. 93-1 (1973)).
EPA periodically codifies national ELGs for NPDES permits that reflect BAT standards
for particular discharges,pollutants, and activities found in a category of point sources. See 40
C.F.R. Pt. 423. Where those guidelines have been set,they establish the floor or minimum level
of control that must be imposed in a NPDES permit.
Against this well-settled background, DEQ's proposal to delay or someday weaken
effluent protections is improper. These provisions are contrary to the Clean Water Act's
technology-driven"goal of zero discharge as quickly as possible."Kennecott v. EPA,780 F.2d at
448. BAT limits must require the"elimination"of pollution discharges if"technologically and
economically achievable...."33 U.S.C. § 1311(b)(2)(A). Here,the technology is not only
available to Duke Energy in theory—Duke Energy has installed the necessary technology to
comply already. DEQ should delete the reopener provision and restore the originally proposed
compliance deadline of November 2019 for FGD wastewater.42
Finally,the Draft Permit provides that by May 31, 2021, "there shall be no discharge of
pollutants in bottom ash transport water."43 But in the same section,the Draft Permit recognizes
that the Belews Creek facility"shall convert to the disposal of dry bottom ash"by December 31,
2019,under North Carolina's Coal Ash Management Act.44 In fact,Duke Energy should have
completed its conversion to dry bottom ash handling already. In the first SOC, finalized in July
2018,Duke Energy committed to adopting dry bottom ash handling by September 30,2018.45
Given that Duke Energy(unless it is violating the SOC)has met the CAMA requirement already,
there is no reason to give Duke Energy more than two additional years to comply with federal
law. DEQ has not justified allowing the continued discharge of bottom ash transport water after
that date. Duke Energy's suggestion that it requires an additional 17 months to"optimize"the
system is unsupported and, as far as the permit record indicates,unverified. Even if that estimate
were accurate, granting 17 months from December 31, 2019, is baseless because Duke Energy
has moved to dry bottom ash handling already and should be optimizing the system now. Even
under Duke Energy's flawed logic, it should have no problem eliminating discharges by early
2020 at the latest.
The Draft Permit must be amended to require December 31, 2019, as the date by which
"there shall be not discharge of pollutants in bottom ash transport water." Otherwise,the Draft
Permit,by allowing the wet sluicing of bottom ash transport water beyond the date expressly
prohibited by CAMA,would authorize Duke Energy to violate North Carolina law.
42 Draft Permit at p. 5.
43 Id. at p. 7.
4 Id.
45 Special Order by Consent S 18-004 at¶2.b(1).
19

c. The Draft Permit must impose physical-chemical treatment on ash pond
decanting and dewatering wastestreams and impose meaningful
notification requirements that sufficiently protect water quality.
i. The Draft Permit must impose physical-chemical treatment on
decanting and dewatering discharges.
For decades, Duke Energy has been sluicing coal ash to the Belews Creek waste settling
pond as the primary means of wastewater"treatment," employing outdated methods developed
decades ago.46 When operating as intended under these older techniques,47 riser structures allow
water from the upper portion of the water column to discharge into the surrounding waters via
designated outfalls, leaving the denser, settled waste solids to remain within the lower level of
the pond. It is this vastly more concentrated and pollutant-laden waste stream—water impacted
by and saturating the settled, removed waste occupying the lower portions of the Belews Creek
ash pond—that Duke Energy will release to the environment during decanting via Outfall 003,
and during dewatering via Internal Outfall 006A.48
1. Decanting discharges of free water requires physical-
chemical treatment.
Decanting entails the discharge by pumping of"free water above the settled ash layer that
does not involve mechanical disturbance of the ash" via Outfall 003.49 Decanting entails a
distinctly more invasive discharge activity than wastewater discharges via"normal operations"
limited to the upper portions of the water column described above, because decanting involves
the pumping of wastewater from within the lower portion of the water column,which contain a
higher concentration of wastes that reside there due to settling. In 2014, EPA previously
recognized a clear distinction between the waste treatment technology and attendant pollutant
concentrations released via"normal (gravity-based or passive) discharges of wastewater from the
surface of the ponds after full settling has occurred"on the one hand, and the large scale
46 See, e.g., U.S. EPA, DEVELOPMENT DOCUMENT FOR FINAL EFFLUENT LIMITATIONS
GUIDELINES,NEW SOURCE PERFORMANCE STANDARDS,AND PRETREATMENT STANDARDS FOR
THE STEAM ELECTRIC POINT SOURCE CATEGORY EPA,No. 440/1-82/029 (Nov. 1982) at p. 441
(explaining that the"ponds use solar energy to evaporate wastewater" as the form of treatment,
"and thereby concentrate dissolved solids in the wastewater" in the lower portions) (available at
https://www.epa.gov/eg/steam-electric-power-generating-effluent-guidelines-documents-related-1982-amendment).
47 As is well established, however, the ash pond at Belews Creek has been plagued with
malfunctions, perpetually leaking through its sides and bottom, contaminating the adjacent
surface waters directly through seeps and via the underlying and adjacent groundwater.
48 See Draft Permit at pp. 6-9. The increased harms to the environment caused by large scale ash
pond drawdowns have already been shown at other sites, including at Riverbend, where arsenic
spikes at Mountain Island Lake prompted later installation of a treatment system, as described in
our prior comments dated July 30, 2018 at p. 10. There is simply no valid reason to wait until
after the environment has been further harmed at Belews Creek following the large scale
dumping of ash pond wastewater to the adjacent waterbody, to determine that modern treatment
systems are necessary.
49 Draft Permit at p. 6 (emphasis omitted).
20

decanting of these ash ponds from lower levels on the other,concluding as to the latter that
"higher concentrations of pollutants may be present at deeper levels in the pond which will be
discharged in the decanted wastewater"from Duke Energy's ash ponds.5°
DEQ under the Cooper Administration has backed down from treatment requirements
contained in the prior draft permit proposed by DEQ under the McCrory Administration. Rather
than requiring treatment of these more polluted wastewaters by physical-chemical treatment,this
latest Draft Permit has eliminated entirely any provision calling for such treatment for decanting
of the ponds via Outfall 003.51 Deleting any condition whatsoever concerning the use of a
physical-chemical treatment system for ash pond decanting at Belews Creek renders the Draft
Permit substantially less protective of water quality than DEQ's prior drafts published in January
2017 and October 2016,both of which unequivocally required physical-chemical treatment
during decanting. Those previous permits stated:
When the facility commencing the ash pond / ponds decommissioning process
and pumping to decant is employed, the facility shall treat the wastewater
discharged from the ash pond / ponds by the physical-chemical treatment
facilities.52
This language must be restored in the current draft.
2. Dewatering of heavily polluted interstitial water requires
physical-chemical treatment.
As compared with decanting,coal ash pond dewatering entails the even more heavily
polluted wastewater entailing the interstitial water saturating the ash waste itself, such as the
"pore water"occupying the spaces in between the ash particles, and the supernatant, or liquid
laying just above the ash solids sitting at the bottom of the waste pond.
Once more, DEQ under the Cooper Administration has reduced treatment requirements
required by DEQ under the McCrory Administration. Despite the nature of these heavily-
polluted wastewaters,DEQ proposes to require the physical-chemical treatment of dewatering
wastewater discharges via Internal Outfall 006A only under limited circumstances,maintaining
the flawed"if necessary"qualifier found in the prior draft published in June 2018.53 As described
in further detail in our prior comments dated July 30,2018,DEQ has substantially weakened the
permit by requiring physical-chemical treatment for ash pond dewatering only"if necessary"to
assure permit limits are not violated. This language should be stricken and replaced with the
above quoted language that DEQ had previously imposed as conditions to both decanting and
dewatering wastewater discharge operations at the Belews Creek facility in its October 2016 and
January 2017 draft permits.
DEQ's failure to require physical-chemical treatment for both decanting of the ash pond
and dewatering of the pond is improper,because, among other reasons,DEQ failed to engage in
50 Attachment 3, Letter from Mark Nuhfer, EPA, to Jeff Poupart(September 16, 2014) at p. 2.
51 Draft Permit at p. 7.
52 January 15,2017 draft permit at p. 6 of 31 and October 12, 2016 draft permit at p. 6 of 29.
53 Draft Permit at p. 9.
21

the requisite TBEL analysis for these wastestreams. Physical-chemical treatment of the
decanting and dewatering wastewaters is indisputably available and well within Duke Energy's
financial ability. Under the Clean Water Act,technology based effluent limitations"shall be
established . . . for solids, sludges, filter backwash, and other pollutants removed in the course of
treatment or control of wastewaters in the same manner as for other pollutants."40 C.F.R.
§ 125.3(g)(emphasis added). As set forth above, it is precisely these wastewaters—water
impacted by and saturating the settled, removed waste occupying the lower portions of Belews
Creek ash pond—that will be pumped and released to the adjacent waterbody during the
decanting and dewatering of the pond.
The Clean Water Act requires that NPDES permits impose TBELs reflecting the
"minimum level of control that must be imposed in a permit"for each pollutant and each
wastestream being discharged from the ash ponds. 40 C.F.R. § 125.3. For the toxic pollutants
occupying lower levels of the pond that have been removed, settled,and that have accumulated
at the bottom of the ash pond over the past several decades, and which are now poised to be
pumped out during decanting and dewatering,TBELs must reflect the pollution reduction
achievable by"best available technology"for these discharges. 40 C.F.R. § 125.3(a)(2)(iii)-(v);
33 U.S.C. §§ 1311(b)(2)(A),(C),(D), (F). Simply put,the complete elimination of any
requirement whatsoever to apply physical-chemical treatment to pond decanting,and a weakly
qualified"if necessary"condition as to pond dewatering, cannot satisfy the"best available"
technology standard for treatment of these heavily polluted wastestreams, given the availability
of this manifestly superior treatment technology. Indeed,the Clean Water Act's BAT
requirement 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)(emphasis added).At best,however, DEQ's"if necessary"qualifier stands the
Clean Water Act's BAT standard on its head, calling for modem wastewater treatment only after
the environment has been further harmed by Duke Energy's toxic pollutant discharges.
The use of physical-chemical treatment system for ash pond decanting and dewatering at
Belews Creek is not only"technologically and economically achievable,"it is a de facto industry
standard method of treatment attendant to ash pond closure. Such systems have been installed or
are proposed, often only after significant environmental harms have been inflicted, at ash pond
closure sites throughout the region: in Georgia,54 Alabama,55 Virginia,56 and at Duke Energy's
Riverbend and Sutton coal-fired plants.
54 Georgia Power is using physical-chemical treatment at all coal ash pond closure sites for
decanting and dewatering, including its Plants Branch,Yates, McDonough-Atkinson,McManus,
and Bowen. (See https://epd.georgia.gov/coal-ash-pond-dewatering-plans).
55 Attachment 4,November 8,2018 Alabama Power Green County Steam Plant Revised Coal
Ash Pond Dewatering Plan.
56 See, e.g., January 2016(rev. Sept. 2016)Dominion/Virginia Electric and Power Company
Concept Engineering Report, Centralized Source Water Treatment System for Bremo Power
Station,reflecting physical-chemical treatment of ash pond closure decanting and dewatering.
(available at
22

For these reasons,the Draft Permit must restore the requirement that physical-chemical
treatment must be employed to treat wastewater discharges for both decanting and dewatering of
the ash pond at Belews.
ii. The Draft Permit must protect water quality by imposing
meaningful reporting requirements on decanting and dewatering
discharges.
The Draft Permit's reporting requirements(or lack thereof)are equally improper. As
proposed,Duke Energy must cease dewatering and notify DEQ if any pollutant for which there
are numerical limits"reaches 85%of the allowable monthly average discharge concentration
during dewatering"occurs.57 As discussed in our prior comments,this reporting requirement is
only as effective in protecting water quality as the numerical limits themselves. Yet those limits
are insufficiently stringent in the first place, for the reasons set forth above,because they fail to
reflect BAT to treat the dewatering discharges using modern physical-chemical treatment
methods. 40 C.F.R. § 125.3.
Aside from reporting requirements tied to insufficiently stringent effluent limits,the Draft
Permit fails to impose any limits whatsoever for numerous toxic pollutants,rendering both the
reporting requirements and the conditional physical-chemical treatment requirement
meaningless.58
For instance,the Draft Permit imposes no discharge limits for bromides, chromium VI,
zinc,nickel,phosphorous, and mercury during pond dewatering.59 Hence, are no circumstances
under which dewatering must cease,or a physical-chemical treatment system is required, even
where an astronomically high concentration of these toxic pollutants is dumped into Little
Belews Creek and the Dan River during dewatering. This scenario is likely, given that the
Belews Creek plant is a recognized source of toxic pollutant discharges to the Dan River,
including bromide. For the reasons set forth above the Draft Permit must be revised to impose
more stringent numerical limits reflecting BAT for all pollutants in the dewatering wastestream.
The notice provisions for ash pond decanting and drawdown discharges via Outfall 003
are even worse. For decanting, all that is required is a weeks' notice to DEQ before Duke Energy
is granted a blank check to dump toxic pollutant-laden wastewater to Little Belews Creek and the
Dan River. Unlike the notification requirements for dewatering discussed above,DEQ imposes
no requirement to cease decanting if the Draft Permit's absurdly high numerical limits for
pollutants such as selenium or lead are exceeded at an 85%threshold for monthly average
concentration.60 As proposed, once Duke Energy tenders its perfunctory one week's notice,61 it is
free to dump toxic wastewater discharges during decanting with impunity, subject to a mere
https://www.deq.virginia.gov/Portals/O/DEO/Water/PollutionDischargeElimination/Coal Ash/Bremo/ConceptEngineeringReport
RevisionSep16.pdf).
57 Draft Permit at p. 9.
58 Id.
591d.
60 See Draft Permit at pp. 6-7.
61 Id. at p. 7.
23

monthlymonitoringand reporting requirement, and even then, onlyfor certain toxics such as
p g q
arsenic, copper, selenium, and lead.62
Consequently, exceedances of toxic pollution such as selenium, lead, or arsenic will not
be even reported to DEQ or the public until as long as a month after they are continuously
dumped into the adjacent waterbody during decanting, leaving everyone in the dark as to
whether the limits are exceeded until after the fact. And that is only for those certain parameters
for which numerical limits even exist.
As DEQ knows, decanting and dewatering of the ash pond at Belews Creek will result in
far more toxic releases to the waters surrounding the plant, as compared with ordinary discharge
operations,because the complete emptying of the pond will release not only impacted waters
from the upper portions of the water column,but also wastewaters occupying the lower levels of
the ponds,near the far more concentrated removed, settled waste that has accumulated within the
pond for the past several decades. Consequently, DEQ must impose numeric effluent limits
reflecting BAT entailing physical-chemical treatment for all identified parameters for Outfall
003 (normal operations/decanting), and for Internal Outfall 006A(dewatering). It must also
impose continuous monitoring and no less than weekly reporting of results,to protect Little
Belews Creek and the Dan River from further pollution during decanting and dewatering of the
ash pond.
d. The Draft Permit fails to impose sufficient restrictions on the rate of ash
pond drawdown rates to no more than one foot per week.
The Draft Permit authorizes an unjustifiably dangerous rate for drawdown of the Belews
Creek ash pond from decanting and dewatering,"not to exceed one(1)foot per day"unless an
even"higher rate is supported"to DEQ's satisfaction—in a process that may be performed
outside of public view, despite the fact that residents and wildlife near the plant may bear the
consequences of an unsafe drawdown rate.63 As set forth in our prior comments dated July 30,
2018, DEQ offers no rational basis in the record supporting its stunning acceleration of the
authorized drawdown rate,marking a departure from the one foot per week drawdown rate that
EPA has previously authorized,that DEQ itself has proposed at Sutton, Riverbend, Cape Fear,
H.F. Lee,Roxboro,Weatherspoon, and previously here at the Belews Creek facility."As
commenters have explained previously,DEQ previously concluded that a one-foot per week
drawdown rate is necessary to"maintain the integrity of the dams"at Sutton.65 These principles
apply equally to the dam at Belews Creek, and DEQ offers no basis in the record to conclude
otherwise.
Absent a rational basis in the record for the sevenfold rate of acceleration for authorized
drawdown proposed here,DEQ's proposed authorization for drawdown of the pond at a rate of
up to one foot per day, contrary to rates authorized by EPA and proposed by DEQ itself for
numerous other Duke Energy plants throughout North Carolina, is arbitrary and capricious,
62 Id. at p. 6.
63 Id. at pp. 7, 9.
"See SELC comments dated July 30,2018 at pp. 10-11, and Attachments 3-4 thereto.
65 See id. SELC comments, at p. 11 n. 25.
24

unnecessarily putting the community of Walnut Cove in the vicinity of the ash pond,and the
nearby aquatic ecosystem, at risk. The Draft Permit must be revised to restore the previously
proposed drawdown rate,not to exceed up to one foot per week,consistent with the rate
authorized by EPA and DEQ, and proposed at other Duke Energy ash pond sites.
e. DEO continues to allow Duke Energy to illegally pollute Belews Lake
with superheated water.
For years now, DEQ has known and admitted that Duke Energy has not shown that the
fish populations of Belews Lake can withstand its continued discharge of overheated water. Yet
DEQ once again has ignored and exempted Duke Energy from the Clean Water Act's Section
316(a)and let this pollution continue. Our 2016 comments explained how DEQ's proposed
permit would have wrongfully granted a"thermal variance"to Duke Energy without the required
showings from Duke Energy. Our 2017 comments did the same, as did our July 2018 comments.
Again,it is clear DEQ must deny the thermal variance unless and until Duke Energy obeys the
Clean Water Act requirements for receiving one.
Indeed,with every new draft permit DEQ issues, DEQ's lenience toward Duke Energy
becomes more egregious, not less. Duke Energy has known since its last Belews Creek permit
renewal in 2011 that it would need to justify its continued exemption from the Clean Water Act's
protections against heat pollution. It has known since the 2016 draft permit that DEQ intended
to grant it another roughly two years to study whether its heat pollution is harming the fish in
Belews Lake. At any point it could have—and should have—begun that study. Instead of
moving up the study schedule deadlines accordingly, DEQ has rewarded Duke Energy's
procrastination by leaving the schedule unchanged.
£ DEO again failed to protect fish and shellfish in Belews Lake from Duke
Energy's cooling water intake structure.
The Belews Creek facility draws more than one billion gallons of water per day through
an aging system that lacks modern protections for fish and shellfish. It is one of the most water-
intensive power plants in North Carolina and in the United States. Belews Creek is designed to
withdraw roughly 1,512 million gallons of water per day(MGD)from nearby Belews Lake. Its
designed water intake capacity is higher than all but roughly 15 percent of power plants in the
country.66 In practice, it has consistently withdrawn roughly 1,200 MGD in recent years.67 Yet
in this Draft Permit DEQ has taken no action to protect Belews Lake from this harmful water
use.
To realize the ultimate goal of"restor[ing] and maintain[ing] the chemical,physical, and
biological integrity of the Nation's waters,"33 U.S.C. § 1251(a), Section 316(b)of the Clean
Water Act requires that cooling water intake structures at pollution sources like Belews Creek
• use the"best technology available for minimizing adverse environmental impact." Id. § 1326(b).
66 EPA,Existing 316b Facilities with ESA Data(Sept. 2015),available at
https://www.epa.gov/cooling-water-intakes/cooling-water-intakes-implementation-support-
documents .
67 Attachment 5, Belews Creek Steam Station Entrainment Characterization Study Plan (April
15, 2016)at p. 7.
25

EPA implemented that Clean Water Act protection in 2014 by issuing the Cooling Water Intake
Structure Rule.68 For power plants taking in more than 125 million gallons of water every day—
a threshold the Belews Creek facility exceeds by an order of magnitude—the rule requires
utilities to submit additional information analyzing how much the cooling water intake structure
harms fish and shellfish through entrainment and on reducing entrainment. 40 C.F.R.
§ 122.21(r)(7)-(13). To protect against impingement, facilities must meet one of several options
EPA has declared"best technology available,"including modified traveling screens, flow
velocity reductions, and operating a closed-cycle recirculating system. 40 C.F.R. § 125.94(c).
For entrainment,permitting agencies must establish a site-specific standard. Id. § 125.94(d). At
every step of implementing these protections,DEQ has fallen short.
i. DEQ must not extend the timeline for submitting key studies.
As with the ongoing delay for compliance with Section 316(a), DEQ has also pushed the
proposed deadline for Duke Energy to submit required studies to achieve Clean Water Act
protections for fish and shellfish from its cooling water intake structure ever further into the
future.
Duke Energy should not only have started these studies by now,but completed them. As
explained in our comments six months ago,the Rule provided"advance notice to affected
facilities about permit application materials and compliance schedules." See 79 Fed. Reg.
48,359. Duke Energy has known of its obligation to gather and submit this information since the
Cooling Water Intake Study Rule issued in 2014. EPA calculated that facilities would need no
more than 39 months to complete the studies and another 3 months to obtain peer review. For
that reason,EPA stated in rulemaking that"July 14,2018 reflects the date after which all permit
application requirements must be submitted as specified at § 125.95." Id.
In the June 2018 draft permit, DEQ recognized that it could not justifiably give Duke
Energy until the next permit renewal to submit the information. That draft permit would have
imposed a 3.5 year deadline instead. As explained above,that deadline was more than generous.
Yet instead of complying with the EPA timeline, or the even more generous timeline in the prior
draft permit, DEQ has in effect extended it by at least six months by leaving this provision
unchanged in the December draft. Again,DEQ is rewarding Duke Energy's procrastination and
delay.
This drawn-out timeline violates the Clean Water Act. Facilities with permits expiring
before July 14, 2018,may request an extension from permitting agencies that would allow them
to submit the required information"as soon as practicable." 79 Fed. Reg.48,358;see also 40
C.F.R. § 125.95(a)(2). But since this permit renewal has been extended well past July 2018,
Duke Energy is not eligible for such an extension. At the very least, Duke Energy does not need,
and cannot lawfully receive, eight years or more to submit information that should take less than
four years to prepare.
68 Final Regulations to Establish Requirements for Cooling Water Intake Structures at Existing
Facilities and Amended Requirements at Phase I Facilities, 79 Fed. Reg. 48,300 (Aug. 15,
2014).
26

This prolonged delay is particularly inappropriate because Duke Energy is not starting
from square one: as noted in an update to the Department this fall, Duke Energy first submitted
proposed peer reviewers for certain required studies in August 2015.69 Duke Energy
subsequently submitted its entrainment characterization study plan for Belews Creek to DEQ in
May 2016.7 There is simply no excuse to give Duke Energy an additional six months just
because issuance of the permit has been delayed.
The final permit should not tie the information submission deadline to the effective date.
Instead DEQ should set a fixed deadline of no later than December 31,2021—roughly 3.5 years
from the June 2018 draft permit.
ii. Duke Energy's once-through cooling system is not the Best
Technology Available. •
In November 2018, we objected to Duke Energy's last-minute attempt to have DEQ
classify Belews Lake as a closed-cycle recirculating system.71 As we have explained,Duke
Energy did not even think this request worth making until several years into the permitting
process. And even the most recent Draft Permit continues to correctly identify the Belews Lake
cooling water intake structure as "once-through."72 Nonetheless DEQ has obliged Duke Energy
and rubber-stamped its aging once-through system as a"closed-cycle recirculating system"and
the best technology available for impingement. This designation is a charade.
We incorporate the information in the November letter by reference,but in summary:
True closed-cycle systems reduce impingement and entrainment of fish and shellfish because
they drastically reduce water intake in comparison to a once-through system,using up to 95
percent less water. 79 Fed. Reg. at 48,342,48,345. Accordingly, "[a] facility employing a
closed-cycle recirculating system will typically reduce impingement by more than 95 percent."
Id. at 48,345. The Belews Creek cooling water intake structure, which uses more than a billion
gallons of water per day,provides no such benefits.
Duke Energy attempts to show it has"minimized"make-up water withdrawals by
discussing its pumping of supplemental cooling water from the Dan River to maintain required
Belews Lake levels.73 But the need for Dan River pumping—which is predictable enough that
DEQ has incorporated it into the NPDES permit, and which will only become more important as
droughts become more frequent or severe—shows just the opposite: Duke Energy uses so much
water from Belews Lake to cool its aging power plant that it needs to take additional water from
a second water of the United States.
69 Attachment 6, Letter from James Wells, Duke Energy,to Jeff Poupart,DEQ(Sept. 21,2018).
70 Attachment 5, Letter from Reginald Anderson,Duke Energy, to Tom Belnick,DEQ(May 13,
2016).
71 Attachment 7, Letter from Leslie Griffith, SELC, to Julie Grzyb, DEQ (Nov. 19, 2018).
72 Draft Permit at pp. 2 and 4;Fact Sheet at pp. 1,2,and 8.
73 Attachment 8, Letter from Shannon Langley, Duke Energy,to Julie Grzyb, DEQ(Oct. 22,
2018)at p. 2.
27

DEQ cannot allow Duke Energy to paint its billion-gallon-per-day, aging system as the
"best technology available." Rather, it must require Duke Energy to comply with the
impingement standard with another, actually effective,control technology.
iii. DEQ has violated the Clean Water Act by failing to set any standard
for entrainment.
Even if Duke Energy could evade protecting fish from impingement through the fiction
that its intake structure is"closed-cycle,"it must still protect against entrainment. To that end,
DEQ must determine on a site-specific basis what is the best technology available to minimize
entrainment at Belews Creek. 40 C.F.R. § 125.94(d). But DEQ continues the error of its
previous draft permits by leaving out any protections, interim or final, against entrainment.
As we said six months ago,the Cooling Water Intake Structure Rule unambiguously now
requires agencies to establish BTA for both impingement and entrainment:
For permits issued before July 14, 2018,when DEQ has let the polluter delay
submitting information,DEQ must"establish interim BTA protections on a site-
specific basis based on the Director's best professional judgment." 40 C.F.R.
§ 125.98(b)(5). But as DEQ well knows,July 14 is past. For this permit and any
other permit issued from July 14 forward, DEQ must go beyond interim
requirements and include final impingement and entrainment protections in each
permit. 40 C.F.R. § 125.98(b)(2). The rule is clear: if issued after July 14,2018,
"the permit must include conditions to implement and ensure compliance with the
impingement mortality standard at§ 125.94(c) and the entrainment standard at
§ 125.94(d)." Id. (emphasis added).
DEQ has simply ignored its obligation to set an entrainment standard. This violates the
Clean Water Act.
Such a failure is particularly glaring given the crude and outdated nature of the Belews
Creek cooling water intake from Belews Lake. From the information available,the cooling
water intake structure uses only coarse 3/8-inch fixed screens,which do not meaningfully stop
entrainment.74 And the structure does not appear to limit the intake water velocity.73 In short, it
lacks any of the modem features that limit fish killing from entrainment.
As EPA has recognized,the most effective technology to reduce entrainment would be to
use a true closed-cycle system. Compared to Duke Energy's sham"closed-cycle system"label
for its impounding of Belews Lake,which takes in more than a billion gallons of water each day,
a true closed-cycle system relying on cooling towers would reduce water intake—and,
correspondingly, entrainment—by up to 95 percent. This technology is not new and has in fact
been available for decades.
But even aside from requiring Duke Energy to adopt true closed-cycle technology at
Belews Creek,DEQ could establish feasible,readily available controls to minimize entrainment
74 Attachment 5, Entrainment Characterization Study Plan at p. 7.
75 Id.
28
1

based on technology Duke Energy is already using for the power plant. For the past decade,
Duke Energy has been supplementing its already extraordinary water intake from Belews Lake
with pumping from the Dan River. This additional cooling water intake structure uses more
modern,more protective technology completely lacking from the Belews Lake Intake. The Dan
River intake uses water intake protection screens with fine 2-millimeter mesh, compared to the
coarse 3/8-inch mesh screens for the main Belews Lake intake. The Dan River screens limit
velocity to .5 feet per second,which the Belews Lake screens do not. And the Dan River intake
• has a fish recovery and return system,which the Belews Lake intake does not.76
Duke Energy knows better technology is available because it is already using for the Dan
River intake at Belews Creek. No detailed,months-long study is necessary to demonstrate that
this improvement is feasible. DEQ should, at the very least,require Duke Energy to upgrade the
main Belews Lake intake to use the technologies in place at the supplemental Dan River intake
to protect against entrainment.
g. The special condition regarding bromide is vague and imposes no limit on
the discharge of this carcinogen.
Bromide is known to cause the formation of trihalomethanes, a carcinogen, in the
drinking water systems. Bromide from Duke Energy's coal ash has led to the formation of
trihalomethanes in the water supplies for the towns of Eden and Madison, downstream from the
Belews Creek plant along the Dan River." The Draft Permit includes a special condition related
to bromide but that condition is vague,imposes no discharge limit,and shifts the burden of
addressing the facility's bromide pollution to downstream public water supplies.
Although the Draft Permit requires bromide from Outfalls 003,006A,and 111 to be
monitored on a monthly basis, it imposes no limit whatsoever on the discharge of this
carcinogen-forming pollutant. Instead,the Bromide Special Condition requires Duke Energy to
submit semi-annual reports"on the efforts it undertakes to reduce bromide at the source as well
as efforts at downstream water treatment plants."78 Duke Energy is not required to actually
reduce its bromide pollution or implement any particular pollution on controls. Instead,the Draft
Permit only requires Duke Energy to report on any actions it undertakes voluntarily.
The Bromide Special Condition also provides that if"Maximum Contaminant Level
violations for Total Trihalomethanes"occur at the Town of Madison,the Town of Eden,or any
their wholesale customers,Duke Energy will"within 14 days of the request provide the latest
available bromide monitoring data"in order that the information can be incorporated into public
notices to the users of those water systems.79 In short,the Draft Permit not only allows Duke
Energy to discharge unlimited amounts of bromides,but shifts the burden of identifying and
responding to the consequences of those discharges to the downstream public water suppliers.
76 Attachment 5, Entrainment Characterization Study Plan at p. 10.
77 Bertrand Gutierrez,Discharge from Belews Creek Power Plant Affects Water Quality,
Winston-Salem Journal(Apr. 13,2014)(available at http://www journalnow.com/news/local/discharge-from-
belews-creek-power-plant-affects-water-qualitv/article_8e6f8202-a305-580d-a389-d96da37d5629.html.)
78 Draft Permit at p. 19.
79 Draft Permit at p. 20.
29

These inadequate measures ignore the fact that the Roanoke River Basin has more
leaking Duke Energy coal ash sites than any other part of North Carolina: Belews Creek,
Roxboro,Mayo, and Dan River. By failing to limit this pollution, the Draft Permit allows the
cumulative impact of these facilities to burden not only the public water supplies at Eden and
Madison,but every public water supply in the Roanoke River watershed downstream from the
facility.
Further, the Draft Permit does not address the fact that the facility's bromide release is
likely to spike when the coal ash lagoon is decanted and dewatered.At an absolute minimum,
and as described in more detail above,Duke Energy should impose a discharge limit on
bromides during these activities, should monitor the amount of bromide actually released during
these periods, and should provide advance notice to downstream water suppliers to allow them to
prepare for potential spikes in trihalomethanes as a result of the increased discharge of bromide
from these activities.
As written,this permit provision is an abdication of the DEQ's statutory duty to protect
the health and welfare of the public that relies on the Dan River and unfairly burdens
downstream users with the risk and cost associated with Duke Energy's bromide discharge.
V. Conclusion
Thank you for your consideration of these comments. If you have any questions or
concerns regarding these comments please contact me at(404) 521-9900 or [e-mail].
Sincerely,
Brian Gist
Senior Attorney
Leslie Griffith
Staff Attorney
Enclosures(mailed copy only): CD containing Attachments 1-8 to Comment Letter
30