NC0004979_Comments to Draft Permit_20161207

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] SOUTH PACK SQUARE, SUITE 700 Facsimile 828-258-2024
ASHEVILLE, NC 28801-3494
December 7, 2016
VIA EMAIL AND U.S. MAIL
Wastewater Permitting
Attn: Allen Steam Station Permit' RECEIVE®JNCDEMM
1617 Mail Service Center DEC 113 2016
Raleigh, N.C., 27699-1617
[e-mail] Water Quality
publiccomments&ncDEQ.gov, publiccomments@ncderingov2 Permitting Section
Re: Draft NPDES Permit — Allen Stearn Station, # NC0004979
Dear Mr. Zimmerman:
On behalf of the Catawba Riverkeeper Foundation, Sierra Club, and the Waterkeeper
Alliance, we submit the following comments on the draft renewal National Pollutant Discharge
Elimination System ("NPDES") permit noticed for public comment by the North Carolina
Department of Environmental Quality ("DEQ") Division of Water Resources for Duke Energy's
discharge of pollution from its Allen Steam Station ("Allen"). Each of the undersigned
organizations have members who rely on the quality of the Catawba River and Lake Wylie for
their livelihoods and who regularly fish, swim, boat and recreate on these waters. For years,
these groups have advocated through administrative processes, the public arena, and in court for
proper cleanup and remediation of Duke Energy's unlined, leaking coal ash impoundments.
We submitted comments on behalf of these organizations on the original draft NPDES
permit on May 5, 2015, which are attached and incorporated herein. Below we address the
revised permitting approach.
Duke Energy's two unlined surface impoundments hold back over 17 million tons of coal
ash and span 293 acres, wedged on a peninsula between the Catawba River (Lake Wylie) and the
South Fork of the Catawba River, near the Belmont community.3 EPA's recently published
Effluent Limitation Guidelines ("ELG") rightly recognizes such "surface impoundments ... are
largely ineffective at controlling discharges of toxic pollutants and nutrients." 80 Fed. Reg.
67838, 67840 (Nov. 3, 2015). This is true at Allen. Portions of Allen's original ash
I The Public Notice of October 28, 2016, directs comments to the attention of "Attn: Dan River Permit," which we
assume is an error. Available at http://deg.nc.5zov/about/divisions/water-resources/water-resources-hot-topics/dwr-
coal-ash-regulation/duke-energy-npdes-permits-for-facilities-with-coal-ash-ponds/duke-energ}�-npdes-
modifications-renewals
2 The Public Notice directs email comments to publiccomments(&ncdenr.gov, but we have also elected to submit
copies to the NCDEQ email address published for other permit renewals under consideration by DEQ.
3 See Duke Energy Ash Basin Metrics, https://www.duke-energy /media/pdfs/our-compan /} ash-
management/duke-energy-ash-metrics.pdf?la=en (Sept. 25, 2016).
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington. DC
100% recycled paper

impoundment were constructed over historic streams to the Catawba River, and the ash sits deep
in the ground, polluting groundwater, streams, wetlands, and the Catawba River. Duke Energy's
plan is to simply leave the ash in place beside the river, where its own studies show the ash will
remain submerged below the groundwater table and will continue to leach pollutants for
centuries.
On August 16, 2013, DEQ filed a verified complaint with the Mecklenburg County
Superior Court in which DEQ itself stated that Duke's unpermitted discharges to the Catawba
River violate state law and that "without ... taking corrective action," they "pose[] a serious
danger to the health, safety and welfare of the people of the State of North Carolina and serious
harm to the water resources of the State." Verified Complaint & Motion for Injunctive Relief,
State of North Carolina ex rel. N.C. DENR, DWQ v. Duke Energy Carolinas, LLC, No. 13 CVS
14661 (Mecklenburg Co., May 24, 2013), ¶ 197.4 Over three years have passed since DEQ
asked the court to enter a permanent injunction requiring Duke to "abate the violations" at
Allen's leaky ash basins in the enforcement suit. CRF and WKA are also a party to this suit.
To this day, Duke Energy's massive coal ash basins at the Allen plant continue to leak
pollutants into groundwater, streams, and the Catawba River. Indeed, within the last two months
alone, CRF and WKA have discovered yet another area of seepage discharging pollutants, like
boron and cobalt, below the ash basins. Instead of requiring compliance with the CWA, DEQ
repeats an error made in other recent proposed permits at Duke Energy's other facilities, and
attempts to legitimate the antiquated ash basins with a permitting scheme that would give a
failing wastewater treatment system permission to pollute through leaks and would convert
streams and wetlands into disposal areas. DEQ does not have unlimited discretion to simply give
Duke a license to pollute as it wishes, but rather is constrained to meet certain minimum
requirements of the Clean Water Act ("CWA").5
The draft permit, as currently proposed, violates the CWA and state law by:
• Converting natural streams and wetlands into Duke Energy's private "Effluent
Channels" to convey pollution;
• Issuing a permit to pollute where surface water quality standards are already exceeded
and where waters are classified as protected water supply areas;
• Failing to develop water quality based effluent limitations that cover all point source
discharges and protect the streams and wetlands actually receiving the polluted
discharges;
• Allowing unlimited discharges of pollutants like selenium, arsenic, mercury and
many more, by flouting the requirement to set technology-based effluent limitations
for discharged pollutants;
4 DEQ's complaint is available for download at https:Hdeg.nc.gov/news/hot-topics/coal-ash-nc/coal-ash-
enforcement.
5 The State of North Carolina administers the State's NPDES permitting program, pursuant to authority delegated to
it from the EPA. See 33 U.S.C. § 1342(b).
2

• Giving Duke a free pass to delay in complying with new limits in federal effluent
guidelines;
• Neglecting to define a compliance boundary around the active basin to stop Duke
Energy from co-opting the Catawba River into its wastewater treatment; and
• Allowing Duke Energy to discharge heated effluent that alters the aquatic community
towards heat tolerant species, without requiring Duke Energy to identify the extent of
its thermal plume or to demonstrate a balanced, indigenous population will be
protected.
For all of these reasons, which are explained more thoroughly below, DEQ must
withdraw the defective permit and reissue for public comment a revised permit.
1) DEQ's Proposed Approach for Permitting Seepage from the Ash Basins Violates the
Clean Water Act.
DEQ's draft Allen permit reflects the agency's latest effort to find a way to deal with
Duke Energy's ash basins, which are indisputably leaking coal ash pollutants into streams and
the Catawba River. DEQ tries in this draft permit to legitimate most seepage through a paper
exercise. Like the earlier draft permit, the revised permit does not achieve compliance with the
law and does not require Duke Energy to stop its polluted seepage.
Duke Energy reported 14 seeps from the ash basins at Allen.6 NCDEQ, Fact Sheet for
NPDES Permit Development, NPDES No. NC0004979, at 3 [hereinafter "Permit Fact Sheet"].
Pollutants like boron, aluminum, copper, lead, mercury, iron, manganese, thallium, vanadium,
and total dissolved solids escape through seeps around the Allen plant, according to Duke
Energy's own reports. Sampling by CRF and WKA of seeps flowing towards the Catawba River
has similarly revealed numerous pollutants escaping from Duke Energy's coal ash basins.
DEQ proposes to turn the six of these seeps into "effluent channels," even if the channels
themselves are streams or located within wetlands. See Permit Fact Sheet at 8-9 & Table 8. The
sum effect of DEQ's proposal is to authorize a wastewater treatment facility (the ash basins) to
discharge through numerous leaks and seeps (streams), rather than require them to contain the
coal ash contamination they were ostensibly designed to hold. As to the remaining seeps, DEQ
essentially proposes to ignore them altogether, despite its confirmation that all but one are still
flowing. In other words, DEQ proposes to "authorize" a leaking wastewater treatment facility,
allowing coal ash polluted wastewater to escape through leaks and seeps instead of through the
normal discharge. This defeats the purpose of the waste treatment system authorized by the
permit. Wastewater treatment systems operate by retaining pollutants removed by its designed
treatment system, like settling in the basins, and then discharging treated water. If the basins are
allowed to leak from their sides and bottom, this system is circumvented.
6 The seep coordinates in the permit A. (30.) and fact page 3-4, table 1, appear to have errors. For example, S-3 and
S-4 are erroneously referred to in the same location, and S -8B is in the water body. This must be corrected and
included in any revised permit for comment.
7 S-9 reportedly has been grouted and no longer flows. Permit Fact Sheet at 9.

The discharge of water polluted with coal ash contaminants through seeps and leaks
should not be permitted under the CWA, or else the entire purpose and function of the waste
treatment system would be evaded. Instead, DEQ should require Duke Energy to stop the
discharge of contaminated water by removing the source of contamination of those seeps—that
is, the coal ash stored within the ash impoundments and submerged in groundwater at the Allen
plant should be removed and safely disposed of in dry, lined storage.
A. Permitting Waters of the United States as "Effluent Channels" Violates the Clean Water
Act and North Carolina Law.
DEQ's chief permitting strategy for seeps in the draft Allen permit is to label them "seep
outfalls" and then identify them as "effluent channels" which flow into "receiving streams." In
fact, DEQ decides the six seeps it views in need of a permit are, coincidentally, also "effluent
channels" to convey Duke Energy's polluted discharge. Permit Fact Sheet at 3-4; Allen Steam
Station, Draft NPDES Permit, Permit No. 0004979, Conditions A. (13) to A. (18) [hereinafter
"Draft NPDES Permit"]. These seep outfalls, however, include waters that appear jurisdictional
and are ineligible for designations as effluent channels.
Duke Energy has identified S-2, S-3 and S-4 each as a "Tributary towards Lake Wylie,"
in its own Discharge Assessment Plan. See Duke Energy Carolinas, LLC, Discharge Assessment
Plan, Allen Steam Station, at Table 1 & Fig. 2 (April 2016) [hereinafter "DAP"].8 Seeps S-3 and
S-4 are downgradient from the active ash basin and coincide with streams visible on historical
topographic maps. See id. at Fig. 1; CAP I Fig -2-2. Recent field surveys identified streams at
these locations, at locations coinciding with seep locations S-1 and S-2, as well as wetlands near
S-2, S-3, and S-49 (CAP I Figure 1-5). In fact, the permit writer for this permit described
wetlands he observed between the ash basin and the Catawba River that would be disturbed if
seeps were required to be pumped. Deposition of Sergei Chernikov (July 30, 2016) 113: 2-21;
115:3-5 ("The area adjacent to Lake Wylie is very wet. There are a lot of wetlands there").
Consistent with this, Duke Energy recently identified these streams and wetlands between the
ash basins and the Catawba River in its request for jurisdictional determination to the Army
Corps of 'Engineers. See Duke Energy Request for Jurisdictional Determination of Waters of the
U.S. (Sept. 23, 2015). io
Duke Energy itself has conceded that the "Catawba River" and "all tributaries of the
Catawba River' are jurisdictional "waters of the United States." See Joint Factual Statement,
8 Available at DEQ's website at the following link: https://ncdenr.s3.amazonaws.com/s3fs-
public/Water%200uality/NPDES%2OCoal%20Ash/S eep%20ID%20Plans/April l 6assessmentplans/Topo%20and%2
ODAP Allen 04.29.2016 FINAL.pdf
9 The seep coordinates in the permit A. (30.) and fact page 3-4, table 1, appear to have errors. For example, S-3 and
S-4 are erroneously referred to in the same location, and S-813 is in the water body. This must be corrected and
included in any revised permit for comment.
10 No doubt DEQ is aware of this, as Duke Energy recently relayed that, although it is seeking to have seeps
designated effluent channels, it does not "yet have jurisdictional determination from the US Army Corps of
Engineers" as to whether these seeps constitute jurisdictional waters of the United States. See Letter from Harry
Sideris to Jeff Poupart (April 26, 2016) (on file with DEQ).
12

U.S. v. Duke Energy, No. 5:15 -CR -62-H, No. 5:1 5 -CR -67-H, No. 5:15 -CR -68-H (E.D.N.C), ¶
22.' i
Seeps that are jurisdictional waters of the United States cannot themselves be permitted
as effluent channels to convey pollutants to other jurisdictional waters. The CWA provides no
mechanism to convert such jurisdictional waters into point source discharges. The CWA
"requires permits for the discharge of `pollutants' from any `point source' into `waters of the
United States."' 40 C.F.R. § 122.1(b)(1) (emphasis added). By definition, a "point source"
cannot be a "water of the United States;" a point source conveys pollutants to a water of the
United States. Coal ash and coal ash wastewater are pollutants regulated under the Clean Water
Act. See Joint Factual Statement, ¶ 20. In theory, an "effluent channel" could be a type of point
source, but only if that effluent channel is not a "water of the United States." See 33 U.S.C.
§ 1362(14) (defining point source as "any discernible, confined and discrete conveyance,
including but not limited to,. . . [a] channel"). In sum, jurisdictional waters cannot be point
sources; instead, water quality standards must be met in the jurisdictional waterbody, meaning in
the so-called seep outfall.
North Carolina law incorporates the same foundational assumption—that a point source
cannot be a water of the United States. "Effluent channel means a discernable confined and
discrete conveyance which is used for transporting treated wastewater to a receiving stream or
other body of water." 15A N.C. Admin. Code 2B :0202 (emphasis added). Restated, an effluent
channel conveys wastewater to a receiving stream or body of water, the effluent channel cannot
itself be the receiving stream. This concept is not lost on DEQ. In the course of evaluating
whether to deem seeps effluent channels for the Belews Creek permit, DEQ rejected this effluent
channel designations for two "seeps" on the basis of "Jurisdictional Determinations or presence
of side streams." Belews Creek Steam Station Fact Sheet at 2 (October 12, 2016) (on file with
DEQ).
But North Carolina law goes beyond the federal CWA by prohibiting designation of an
effluent channel if that channel "contain[s] natural waters except when such waters occur in
direct response to rainfall events by overland runoff." 15A N.C. Admin. Code 2B.0228(2).
"Natural waters" includes ground and surface waters. As with the CWA, North Carolina law
prohibits designation of an effluent channel if that channel contains natural, jurisdictional surface
waters. North Carolina law also prohibits designation of an effluent channel if that channel
contains groundwater. In other words, an effluent channel can only be designated if that channel
would be dry except during rainfall events and as a result of transporting waste water. The seeps
identified by Duke Energy include both jurisdictional surface water tributaries and are influenced
by natural groundwater, preventing,their designation as "effluent channels." This approach
cannot be implemented consistent with federal and state law.
B. The CWA Prohibits Ignoring Point Source Discharges.
After proposing to authorize through a.paper exercise most of the seeps identified by
Duke Energy, DEQ elects to simply ignore the remaining seeps reported by Duke Energy. North
"Available at hitps://www.duke-energy.com/ /media/34a6a9fO7c39463d99cdd060358b782b.ashx.
5

Carolina cannot turn a blind eye to pollutant discharges, even if it turns out they do not violate
water quality standards ("WQS"). DEQ's fact statement provides little justification for this
decision. Seeps S-5, S-6, S-7 are excluded from permit requirements because they may
discharge "underwater," and S-1 is excluded "based on the low concentration of the constituents
associated with coal ash." Permit Fact Sheet at 3. These statements show a fundamental
misunderstanding of the CWA.
There is no "underwater" exception for discharges, and Duke has successfully sampled
these seeps previously and found contaminants. See, e.g., Duke Energy Wastewater Application
Update (Mar. 29, 2016) Table A-4 (reporting elevated levels of boron, chloride, sulfate,
aluminum, and thallium in S-6). That these seeps may leak and discharge under the surface
elevation of the Catawba River does not relieve Duke Energy of its CWA obligations. Instead,
this highlights the folly of trying to approve Duke Energy's leaky ash basins through a paper
exercise.
There is also no "low concentration" exception for discharges. The CWA concerns itself
with any point source pollutant discharges, not just with discharges of pollutants that rise to a
level that DEQ views as problematic. "The term `discharge of a pollutant' ... means any
addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)
(emphasis added); 40 C.F.R. § 122.2. As recognized by the 4h Circuit, the statute clearly covers
all additions, "no matter how small." W. Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d
159, 166-67 (4th Cir. 2010). Therefore, "low concentrations" of pollutants do not get a free pass
under the CWA. DEQ cannot ignore pollutants discharging through S-1, like aluminum. See,
e.g., Duke Energy Wastewater Application Update (Mar. 29, 2016) Table A-1.
In addition, DEQ ignores remaining seeps that may be discharging through short
hydrological connections from groundwater to surface water. S -8C, S-11, and S-12 are
dismissed as not discharging to waters of the US. Draft Permit Fact Sheet at 3. The location of
these seeps is unclear from the permit file—they are not included in 2016 permit updates by
Duke Energy, and a map is not provided with the fact sheet or permit. To the extent any of these
seeps connects with a waterbody via a short hydrological connection through groundwater, Duke
Energy cannot evade the CWA. As further discussed below, Duke Energy's own studies show
that the unlined basins are discharging pollutants through surface and groundwater into the
Catawba River. DEQ cannot ignore seeps that are point source discharges occurring via
groundwater.
C. The Draft Permit Sets Inadequate Monitoring Requirements for Seeps and Does Not
Assure Permit Modifications for New Seeps Will Comply with Public Notice
Requirements. '
Even if these seeps could be properly permitted as proposed by DEQ, the proposed
conditions also set inadequate monitoring for current and future seeps, and also may bypass
notice and comment requirements. At a minimum, more frequent monitoring of seeps would be
needed to meaningfully assess compliance. The draft permit requires monthly monitoring of the
seeps only for the first year•, thereafter, monitoring is required only quarterly. There is no basis
supplied for reduced frequency of sampling. This infrequent sampling is inadequate for several
no

reasons. First, the flow and levels of contaminants in the seeps are likely to fluctuate based on
weather and season, so four snapshots per year will make it impossible to accurately assess the
amount of pollutants discharging into the Catawba River, streams and adjacent wetlands. While
DEQ has candidly admitted it would be difficult to accurately monitor the seeps even under the
best of circumstances, infrequent sampling virtually guarantees the permit's effluent limits and
flow requirements will not be enforced. Second, this arrangement makes it easier for the polluter
to pick and choose sampling conditions that it views as ideal to avoid finding violations. It also
makes identifying new seeps far less likely. That CRF and WKA discovered yet more seepage
discharging pollutants below the ash basins on the riverfront of the Catawba before this permit
even issued demonstrates not only the inevitability of new seepage, but also the need for tighter
oversight to make sure new seeps are reported and evaluated. This proposed permit has become
stale before it has even issued.
Finally, this schedule falls short of the requirements of the CWA. EPA regulations
mandate that all permit limits shall, unless impracticable, be stated as both daily maximum and
average monthly discharge limitations. 40 C.F.R. § 122.45(d). Nothing in the fact sheet
demonstrates or suggests that monthly, or even daily, monitoring of seep discharges is
impractical. For all these reasons, monitoring with increased frequency should be required.
Allen's ash basins are expected to spring new seeps and leaks—Duke Energy itself has
disclosed five new seeps between the original 2014 (describing nine seeps) and the 2016
application update (describing 14 seeps). The draft permit anticipates this growing problem by
trying to provide a path for Duke Energy to legitimate the inevitability of new seepages. Draft
Permit Condition A. (30). In addition, it appears DEQ may intend to allow Duke Energy to
evade public notice and comment and the opportunity for a public hearing and for judicial
review, along with other requirements of the state NPDES permitting program, see 33 U.S.C.
§ 1342(b). The permit itself states that the new identified seep is not "permitted" until the permit
is modified and the new seep is included and the "new outfall is established." But DEQ must
clarify which procedures for permit modification it intends to follow for anticipated new seeps.
Any permit modifications, of course, must comply with public notice and comment procedures,
and EPA oversight, under the CWA.12
2) The Draft Permit Fails to Account for Discharges of Wastewater Through
Hydrologically Connected Groundwater.
In addition to admitting numerous seeps and leaks discharging via surface water
connections, Duke estimates that approximately 55,000 cubic feet—over 400,000 gallons—per
day of contaminated groundwater is being discharged into the Catawba River from the coal ash
impoundments at Allen. Allen Cap 2, App. D at 3. Undoubtedly some of this contaminated
groundwater is also being discharged to jurisdictional streams and wetlands between the ash
impoundment dams and the Catawba River, causing those tributaries to also violate North
Carolina surface water standards.
12 EPA's regulations authorize limited administrative changes to an active permit through minor modifications, none
of which condone the addition of a new NPDES outfall through a mere administrative change by the agency. See 40
U.S.C. § 122.63.
7

The CWA is a strict liability statute prohibiting the discharge of any pollutant to a water
of the United States without a permit. 33 U.S.C. § 131 l(a). Importantly, Duke Energy cannot
evade the CWA by discharging pollutants through short, hydrological groundwater connections.
DEQ erred in ignoring this significant discharge.
EPA has stated repeatedly that the CWA applies to such hydrologically -connected
groundwater discharges. 66 Fed. Reg. 2960, 3015 (Jan. 12, 2001) ("EPA is restating that the
Agency interprets the Clean Water Act to apply to discharges of pollutants from a point source
via ground water that has a direct hydrologic connection to surface water."); accord 56 Fed. Reg.
64876-01, 64892 (Dec. 12, 1991) ("the Act requires NPDES permits for discharges to
groundwater where there is a direct hydrological connection between groundwater and surface
waters."); 55 Fed. Reg. 47990, 47997 (Nov. 16, 1990) (announcing stormwater runoff rules and
explaining that discharges to groundwater are covered by the rule where there is a hydrological
connection between the groundwater and a nearby surface water body).
In addition to EPA, "[t]he majority of courts have held that groundwaters that are
hydrologically connected to surface waters are regulated waters of the United States, and that
unpermitted discharges into such groundwaters are prohibited under section 1311." Friends of
Santa Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333, 1358 (D.N.M. 1995) (citations
omitted).
The United States Department of Justice ("DOJ") recently emphasized "EPA's
longstanding position [] that a discharge from a point source to jurisdictional surface waters that
moves through groundwater with a direct hydrological connection" comes under the purview of
the CWA. 13 As expressed by DOJ "it would hardly make sense for the CWA to encompass a
polluter who discharges pollutants via a pipe running from the factory directly to the riverbank,
but not a polluter who dumps the same pollutants into a man-made settling basin some distance
short of the river and then allows the pollutants to seep into the river via the groundwater." Id. at
16 (quoting N. Cal. River Watch v. Mercer Fraser Co., No. 04-4620, 2005 WL 2122052, at *2
(N.D. Cal. Sept. 1, 2005)). The same applies here. As discharges to the Catawba River via
hydrologically connected groundwater were not authorized under the current permit (and are
therefore prohibited), they should not be authorized in the revised permit.
Attempting to add it now may violate the anti -backsliding provision of the Clean Water
Act. 33 U.S.C. § 1342(0); 40 C.F.R. § 122.44(1)(1) ("[W]hen a permit is renewed or reissued,
interim effluent limitations, standards or conditions must be at least as stringent as the final
effluent limitations, standards, or conditions in the previous permit ......
Instead, DEQ should require Duke Energy to stop the discharge of contaminated
wastewater to waters of the US via hydrologically connected groundwater. Where, as here,
Duke Energy's own studies submitted to DEQ have revealed the source waste (coal ash) is
sitting in large unlined basins, submerged in groundwater, DEQ should require Duke Energy to
arrest the ongoing source of contamination.
1313 See attached Amicus Brief, Hawaii Wildlife Fund v. County of Maui (No. 15-17447, 9t' Cir.), 5.

3) The Department Cannot Issue a Permit to a Facility that is Violating Surface Water
Standards
Even if these high volumes of discharges of hydrologically connected groundwater were
eligible for permitting, they cannot in this instance because discharges from the Allen plant are
contributing to violations of surface water quality standards. NPDES permits control pollution
by setting (1) limits based on the technology available to treat pollutants ("technology based
effluent limits") and (2) any additional limits necessary to protect water quality ("water quality -
based effluent limits") on the wastewater dischargers. 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R.
§ 122.44(a)(1), (d). An NPDES permit must assure compliance with all statutory and regulatory
requirements, including state water quality standards. 33 U.S.C. § 1342(a)(1)(A); 40 C.F.R.
§ 122.43(a); 15A N.C. Admin. Code 2H .0 118.
Similarly, North Carolina law provides that "[n]o permit may be issued when the
imposition of conditions cannot reasonably ensure compliance with applicable water quality
standards." 15A N.C. Admin. Code 2H.01 12(c); see also N.C. Gen. Stat. §§ 143 -215.6a -c
(authorizing civil and criminal penalties and injunctive relief for violations for surface water
standards).
Discharge from the ash ponds is currently causing violations of surface water standards
in blue line jurisdictional streams and seeps in the location of wetlands at the Allen plant, as
documented by Duke Energy's own studies. DEQ does not bother to ascertain compliance with
WQS, it appears, in the jurisdictional waters between the ash basins and the Catawba River.
Instead DEQ obscures the stream impacts by deeming the streams "effluent channels." Surface
water standards have been exceeded in seep samples, according to Duke Energy, for aluminum,
copper, lead, mercury, and total dissolved solids. See CAP 1 Table 2-5.2; March 29, 2016
NPDES permit update. In addition, contaminated groundwater entering the Catawba River from
the Allen plant exceeds Human Health and Water Supply standards for cobalt, and the Chronic
Aquatic Life standard for selenium, according Duke Energy's models. 14
Contamination of these surface waterbodies negatively impacts ecological health. Duke
Energy's CAP 2 evaluated the ecological risk to "ecological receptors," chosen as surrogates for
the range of receptors in given habitat. At the Allen site, "aquatic receptors include fish, benthic
invertebrates, aquatic birds (represented by mallard duck and great blue heron), and aquatic
mammals (represented by muskrat and river otter)." See Allen CAP 2 at 33. The CAP 2
identified four exposure areas where pathways to the ecological receptors are probable. One of
those exposure areas is the area "between the ash basins and the Catawba River along the
shoreline"—the exact location of contaminated streams and wetlands at the Allen site, described
above. Id. at 33. In sum, waters of the United States contaminated by coal ash are found at one
of the most probable locations for contamination exposure to various "aquatic receptors."
To the extent hydrologically connected groundwater is causing violations in adjacent
surface waters, we are aware of no technology which would remedy ongoing violations and
"ensure compliance with applicable water quality standards," except removal of the buried waste
14 Allen CAP I App. E at p. 4, Table E-3 (Ex. 62).

source. Regardless, the discharge cannot be permitted as long as surface water quality standards
are violated in tributaries of the Catawba River.
1
4) The Draft Permit Violates Requirements Applicable to Surface Waters Classified as
Water Supply Areas
The Catawba River is classified as a WS -1V water. See Permit Fact Sheet at 1, 3.
Designated uses include "a source of water supply for drinking, culinary, or food-processing
purposes," as well as class C uses. 15A N.C. Admin. Code 2B .0216(1). Conditions to meet this
use provide, "waters of this class are protected as water supplies" and "shall meet the Maximum
Contaminant Level concentrations considered safe for drinking, culinary, or food-processing
purposes that are specified in the national drinking water regulations and in the North Carolina
Rules Governing Public Water Supplies." 15A N.C. Admin. Code 2B .0216(2). Those limits
must be met in the Catawba River and its tributaries. "Sources of water pollution that preclude
any of these uses on either a short-term or long-term basis shall be considered to be violating a
water quality standard." Id. Based on surface water samples collected by Duke Energy, it
appears that the Allen plant is currently violating this standard. Unless the "source[] of water
pollution" is removed, the Allen plant may violate this standard in perpetuity, preventing it from
being permitted in compliance with North Carolina law.
5) The Reasonable Potential Analysis is Inadequate.
The reasonable potential analysis completed as part of the permit renewal is inadequate
because 1) it does not assess the impact of wastewater discharged through hydrologically
connected groundwater; 2) the reasonable potential analysis is not performed for all jurisdictional
waters receiving polluted discharge; and 3) the limits do not assure compliance with water
quality standards.
Reasonable potential analysis seeks to determine "whether a discharge causes, has the
reasonable potential to cause, or contributes to an in -stream excursion above a narrative or
numeric criteria within a State water quality standard." 40 C.F.R. § 122.44(d)(1)(i) (emphasis
added). The Fact Sheet describes a reasonable potential analysis (or RPA) conducted for certain
outfalls, and cross-references "spreadsheets" attached to the Fact Sheet, but no such spreadsheets
are attached to the Fact Sheet distributed for public comment. The narrative description itself,
however, indicates error in the RPA.
As mentioned previously, Duke Energy is discharging over 400,000 gallons per day of
contaminated groundwater into the Catawba River from the coal ash impoundments at Allen.
Allen Cap 2, App. D at 3. This significant discharge does not appear to have been included in
the Department's reasonable potential analysis. The Department must redo its analysis
incorporating the hydrologically connected discharge to more accurately determine if there is a
reasonable potential to violate or contribute to a violation of surface water quality standards
(including cobalt and selenium, which Duke Energy's own model predicts are discharging
through groundwater).
The Department's reasonable potential analysis also appears to have incorrectly focused
its analysis only on a contravention of water .quality standards in the Catawba River, without
10

assessing compliance in streams and wetlands. Part and parcel of this error was giving streams
the regulatory label "effluent channels" and treating them as pipes to convey pollutants. This
error is described above. So too, for purposes of determining reasonable potential to violate
surface water standards, the Department cannot ignore other jurisdictional waters of the United
States, including the tributaries and wetlands receiving polluted discharges before eventual
discharge in the Catawba River. For any tributaries or wetlands being impacted by wastewater
contaminated with coal ash, the Department must determine if the discharge "causes, has the
reasonable potential to cause, or contributes to an [] excursion above a narrative or numeric
criteria within a State water quality standard" within the jurisdictional stream. 40 C.F.R.
§ 122.44(d)(1)(i). There is no authority for the Department to ignore discharges to jurisdictional
streams. Additional reasonable potential analysis should include, at a minimum, tributaries and
wetlands coinciding with S-2, S-3, and S-4 See, e.g., CAP 1 Figs. 1-5; Discharge Assessment
Plan, Fig. 1. As described above, seep sampling already indicates ongoing impacts from the ash
basins. The reasonable potential analysis must be expanded to these water bodies, to determine
whether the discharge has the potential to contribute to an exceedance of narrative or numeric
standards.
By incorrectly assuming the sole relevant point of compliance is the Catawba River, DEQ
also committed another error: it combined separate seep discharges for purposes of conducting
RPA. For example, the toe drain discharges at outfalls 103 and 104 were combined into a "Toe
Drains Flow." The other four seeps, which emerge at different points along the Catawba River,
were combined, as if they were discharging as a single fictional outfall. See Permit Fact Sheet at
6. No CWA authority for combining discharges to ascertain compliance with standards is
supplied, and we are aware of none. Of course, this serves to obscure the impacts of separate
discharges on individual streams and wetlands, as well as different parts of the Catawba River
that receive these discrete flows, which have contaminant profiles that vary.
In addition to errors that pervade the entire RPA analysis, specific to Outfall 002, the
condition related to net turbidity under normal operations and dewatering must be revised to
achieve water quality standards in the receiving stream. Note 5 to Conditions A.(2) and A.(3)
states that "net turbidity shall not exceed 50 NTU ... measured by the difference between the
effluent turbidity and the background turbidity." First, because this is an impounded portion of
the Catawba River, the applicable standard is 25 NTU. 15A N.C. Admin. Code 2B.0211(21).
Second, allowing a net increase over background conditions in the effluent in an amount
equivalent to the maximum allowed in the standard does not at all assure water quality standards
will be met in the Catawba River. Instead, this term must be revised to reflect water quality in
the receiving stream, which DEQ has already done in the Sutton NPDES permit: "The discharge
from this facility shall not cause turbidity in the receiving stream to exceed 50 NTU. If the
instream turbidity exceeds 50 NTU due to natural background conditions, the discharge cannot
cause turbidity to increase in the receiving stream:" NPDES Permit Modification NC0001422
(Dec. 7, 2015) Condition A.(2) note 5.
11

6) The Permit Fails to Impose Sufficiently Stringent Technology Based Effluent
Limitations.
DEQ's proposed draft permit falls short of the duty to impose technology-based effluent
limits ("TBELs") on the pollutants being discharged at the Allen plant. The CWA requires this
NPDES permit to include limits that reflect "the minimum level of control that must be imposed
in a permit." 40 C.F.R. § 125.3. In other words, the Allen permit must include TBELs that
reflect the pollution reduction achievable by "application of the best available technology
economically achievable" ("BAT"). 40 CFR § 125.3(a)(2)(iii)-(v). Whether or not Duke Energy
implements the specific technology determined to be the BAT, it must comply with the effluent
limitations that could be achieved by the BAT. The BAT sets a stringent treatment standard that
requires "elimination of discharges of all pollutants if... such elimination is technologically and
economically achievable." 33 U.S.C. § 131 l(b)(2)(A). Technology-based permit limits are
derived from one of two sources:
(1) national effluent limitation guidelines ("ELGs") issued by EPA, 33 U.S.C. § 1314(b), or
(2) case-by-case determinations using the "best professional judgment" ("BPJ") of permit
writers (33 U.S.C. § 1342(a)(1)(B); 40 C.F.R. § 125.3), when EPA has not issued an ELG
for an industry or the ELG does not apply to certain pollutants. 40 C.F.R. § 125.3(c)(2),
(3) (when ELGs "only apply to ... certain pollutants, other aspects or activities are
subject to regulation on a case-by-case basis"). 15
EPA's current effluent limitation guidelines (ELGs) for coal-fired power plants do not
define the treatment that is "technologically and economically achievable" for most of the waste
streams relevant to)the Allen permit. 16 'That does not, however, alleviate DEQ's responsibility to
apply technology-based effluent limits, using BPJ, for pollutants not addressed in an ELG. DEQ
neglects to include limits for many toxic pollutants (arsenic, selenium, cadmium), using BPJ.
The requirement for TBELs is a critical part of moving polluters towards eliminating pollutant
discharges based upon achievable reductions and -cannot be overlooked. North Carolina
regulations require that "[a]ny state NPDES permit will contain effluent limitations and
standards required by ... the Clean Water Act which is hereby incorporated by reference
including any subsequent amendments and editions." 15A N.C. Admin. Code 2H.0118.
A. Effluent Limitations Must be Added to the Draft Permit.
We commented that the prior permit failed to set TBELs for known priority pollutants
discharging through effluent outfalls. This error persists in the revised permit. In fact, rather
than improve the limits, the technology-based effluent limitation (TBEL) that was previously set
for one metal in the ash pond discharge as a supposed proxy for other metals, mercury, has now
been removed in the most recent draft permit.
15 When applying BPJ "[i]ndividual judgments []take the place of uniform national guidelines, but the technology-
based standard remains the same." Texas Oil & Gas Assn v. U.S. E.P.A., 161 F.3d 923, 929 (5th Cir. 1998). In
other words, the DWR must operate within strict sideboards when identifying BAT based on BPJ.
16 EPA issued recently ELGs for the steam electric industry, 80 Fed. Reg. 67894, November 3, 2015 (the "ELGs"),
which are addressed below.
12

There are two steps DEQ must complete to determine BAT under these circumstances,
and to set appropriate TBELs. First, the permit writer must assess what technologies are
"available." Second, the permit writer must assess which of the available technologies are
economically achievable. The technology that obtains the highest reduction in pollutants and is
also economically achievable is the BAT. 17
DEQ must complete these steps and assign additional limits at outfalls, including for
Outfall 002—luring normal operations and dewatering18—as well as the seep outfalls (the seep
permitting approach is problematic for several additional reasons already discussed). DEQ's
fact sheet lists several pollutants that are discharged by Duke Energy through its ash pond outfall
(002), but then fails to apply any technology-based limit to these pollutants. This includes
selenium, arsenic, and mercury, which are only subject to monitoring requirements in the draft
permit. Metals such as cadmium, nickel, and zinc are typically present in coal ash, and DWR's
own monitoring data referenced as justification for establishing maximum allowable parameter
concentrations from seeps in prior Allen permit drafts confirms that the ponds are indeed
discharging cadmium, nickel, and zinc.
In addition, DEQ continues to limit the application of limits for copper and iron (Outfall
002), to only when "chemical metal cleaning wastewaters are being discharged." Condition A.(2)
n.1. Because metal cleaning wastes currently discharge to the very large volume of wastewater
in the ash pond, there is no reliable justification for limiting the application of TBELs to the
specific times, without accounting for the time required for the metal cleaning waste stream to
assimilate into the contents of the ash basin and eventually impact the permitted discharge at
Outfall 2 and other ash pond discharges (like toe drains and seeps). If DEQ believes this limit is
being met at other times, then it is unclear why DEQ would be reluctant to expand its
applicability to all operating times. So too, DEQ has not explained how the technologies to
achieve these limits might be unavailable between chemical cleaning events.
B. The Department Has Not Justified Extended Deadlines for Compliance with New
Effluent Limitations.
As the Department recognizes new federal rules establish technology-based effluent
limitations on the discharge of pollutants in fly ash transport water, bottom ash transport water,
and wastewater from flue gas desulphurization ("FGD") systems, which must be met "as soon as
possible beginning November 1, 2018, but no later than December 21, 2023." 40 C.F.R.
§ 423.12(h), (k), (g).
17 The initial determination under BAT, technological availability, is "based on the performance of the single best -
performing plant in an industrial field." Chem. Mfrs. Assn v. U.S. E.P.A., 870 F.2d 177, 226 (5th Cir.), decision
clarified on reh'g, 885 F.2d 253 (5th Cir. 1989); see Am. Paper Inst. v. Train, 543 F.2d 328, 346 (D.C. Cir. 1976)
(BAT should "at a minimum, be established with reference to the best performer in any industrial category"). In
short, if the technology is being utilized by any plant in the industry, it is available. See Kennecott v. U.S.E.P.A.,
780 F.2d 445, 448 (4th Cir. 1985) ("In setting BAT, EPA uses not the average plant, but the optimally operating
plant, the pilot plant which acts as a beacon to show what is possible").
18 At a minimum, all of the limits from Outfall 002 during normal operations should apply during the more intense
dewatering phase, including the limits applicable during chemical metal cleaning (iron, copper), because chemicals
associated with that process may have settled into the ash basin and be discharged at higher concentrations through
interstitial water.
13

Despite the presumption that the rule is effective less than two years from now,
November 1, 2018, the Department proposes to grant Duke's request to continue dumping FGD
wastewater and wet -sluiced bottom ash for another four to six years (from Feb. 28, 2021 up until
December 21, 2023). The compliance date selected, according to the permit, hinges on whether
Duke Energy decides to "retire the facility early," in which case the Duke Energy is allowed the
latest possible compliance date. See Draft NPDES Permit, Conditions A. (2) (bottom ash
transport water), A. (8), (9.) n.4 (FGD wastewater). If the facility plans to retire early (by 2023),
the justification for a later compliance date is more apparent. However, materials submitted by
Duke Energy reference early retirement for certain units (1, 2, and 3) as opposed to the facility.
See Duke Energy, NPDES Application Update (August 31, 2016), Att. 4.
Assuming the permit term itself controls, in the event Duke Energy decides "not to retire
the facility early," DEQ has not provided justification for its decision to allow four more years of
ongoing dumping of FGD wastewater and wet -sluiced bottom ash. So too, if Duke Energy
decides only to retire three units early, neither Duke Energy nor DEQ have explained the
necessity for four more years to make necessary operational changes to only the two remaining
units.
In delegating state permitting authorities the responsibility of determining when the new
limits will apply, EPA presumes that the "as soon as possible" date is November 1, 2018, "unless
the permitting authority establishes a later date, after receiving information from the discharger."
40 C.F.R. § 423.11(t). Any determination that a later date is appropriate must be well-
documented and reflect consideration, at a minimum, of the specific factors set forth in EPA's
regulations. See id. To be clear, the phrase "as soon as possible" means November 1, 2018,
unless the permitting authority establishes a later date after receiving information from the
discharger and after making an independent judgment regarding the appropriateness of an
extended compliance timeline. 80 Fed. Reg. at 67883. Indeed, "even after the permitting
authority receives information from the discharger, it still may be appropriate to determine that
November 1, 2018, is `as soon as possible' for that discharger." Id. at 67883, n.57.
Importantly, EPA encourages permitting authorities to "provide a well-documented
justification for how [they] determined the `as soon as possible' date in the fact sheet or
administrative record for the permit," and to "explain why allowing additional time to meet the
limitations is appropriate," if that is the authority's conclusion. See U.S. EPA, Technical
Development Document for the Effluent Limitations Guidelines and Standards for the Steam
Electric Power Generating Point Source Category (Sept. 2015), at 1411.
Here, DEQ has neither explained why allowing additional time for compliance is
appropriate nor provided documentation of its justification for additional time. Instead, DEQ
offers perfunctory, non -explanatory statements for the extension of compliance deadlines for
limits. For FGD wastewater, DEQ recites that "Duke is evaluating early retirement options for
the facility," restates the dates requested by Duke Energy, and then offers DEQ "concurred" with
the compliance dates. Permit Fact Sheet at 6. For bottom ash, the fact sheet lacks even this
statement, offering only that "Duke is evaluating early retirement options" along with a
statement of Duke's requested dates, which then get incorporated into the permit. Id. at 1; Draft
Permit, conditions A.(2.) and A.(3). Merely reciting that Duke Energy requested the extension
beyond November 1, 2018, is not a "well-documented justification."
14

In addition, there is ample evidence that suggests, even allowing Duke Energy a lengthy
one-year extension to make a decision on early retirement.by December 31, 2017, a sooner
compliance date would be possible. According to EPA, "plants typically have one or two
planned shut -downs annually and [] the length of these shutdowns is more than adequate to
complete installation of relevant treatment and control technologies." 80 Fed. Reg. at 67854,
n.27. There are several examples of plants that have completed fly and bottom ash conversion
projects in less than three years, including Duke Energy's own Mayo Plant. See Duke Energy
Progress, Inc., Mayo Steam Electric Generating Plant, Quarterly Progress Report (January –
March 2015) ("Dry bottom ash handling system began construction on December 14, 2012. As
of March 31, 2014, construction of this system was 100% complete."). At the South Carolina
Electric & Gas Company Wateree plant, conversion to a closed-loop bottom ash handling system
was completed in two and a half years. See Final Notes from Site Visit at South Carolina
Electric & Gas Company's Wateree Station on January 24, 2013, EPA -HQ -OW -2009-0819-
1917, at 2. In comments filed on the proposed rule, UWAG provided a case study of a >850
MW unit converting from wet handling to dry handling, in which the total time required from the
start of conceptual engineering was 30-36 months. See Comment submitted by Elizabeth E.
Aldridge, Hunton & Williams on behalf of Utility Water Act Group (UWAG), EPA -HQ -OW -
2009 -0819-4655, at 84-85 & Att. 11.19 For FGD wastewater treatment systems, the American
Public Power Association has estimated that installation could be completed in six to eight
months. See Comment submitted by Theresa Pugh, Director of Environmental Services and
Alex Hofinann, Energy and Environmental Services Manager, American Public Powef
Association (APPA), EPA -HQ -OW -2009-0819-5140, at 37. At Duke's Mayo Plant, a partial
zero liquid discharge system for FGD wastewater was completed in approximately two years.
See Duke Energy Progress, Inc., Mayo Steam Electric Generating Plant, -Quarterly Progress
Report (January – March 2015) ("The partial Zero Liquid Discharge system -for FGD wastewater
began construction on January 28, 2013. As of March 31, 2015, construction of this system was
100% complete.")
Duke Energy has been aware of the need to comply with the new effluent limits since at
least September 2015—when the final federal rules were published—and should already have
begun evaluating what changes would be needed at Allen and its other plants. As EPA stated in
September 2015: "Regardless of when a plant's NPDES permit is ready for renewal, the plant
should immediately begin evaluating how it intends to comply with the requirements of the final
ELGs. In cases where significant changes in operation are appropriate, the plant should discuss
such changes with the permitting authority and evaluate appropriate steps and a timeline for the
changes, even prior to the permit renewal process." 80 Fed. Reg. at 67882-83 (emphasis added).
Moreover, EPA's final effluent limits for FGD and coal ash transport water were also contained
in the proposed rule issued June 7, 2013—on which proposal Duke submitted comments. In
2014, Duke Energy reported that "[m]ost, if not all, of the steam electric generating facilities the
Duke Energy Registrants own are likely affected sources [and that] [r]equirements to comply
with the final rule may begin as early as late 2018 for some facilities," Duke Energy, 2014
Annual Report and Form 10-K at 59. Duke Energy has for years been on notice of the
impending need to upgrade wastewater treatment at its plants. The FGD wastewater treatment
system at Allen, in particular, according to Duke Energy, already contains the technology EPA
19 Available at https://www.regulations.gov/co ntentStreamer?documentId=EPA-HO-RCRA-2013-0209-
0034&attachmentNumber=l &disposition=attachment&contentType--pdf.
15

used to develop BAT limits. See Duke Energy, NPDES Application Update (August 31, 2016),
Att. 4, Sec. C. Although Duke Energy contends that, with this, selenium concentrations at Allen
have been viewed by EPA as elevated based on 2014 and 2015 data, even this it attributes to
differences in sourcing coal. See id. Based on Duke Energy's experience with the existing FGD
wastewater system and anticipated need to make improvements, the long extension sought by
Duke Energy is unjustified.
With respect to bottom ash transport water, North Carolina law requires Duke Energy to
convert to the dry handling of bottom ash by December 31, 2019. Allowing for the continued
discharge of pollutants in bottom ash transport water after that date cannot be justified. Duke
Energy does not explain its claimed need for a "13 month window .._. to gain the necessary
operational experience and fine-tune the system," plus an additional month to stagger operational
activities with Marshall. See id. DEQ has offered no indication that it has questioned or verified
this claim. Moreover, Duke Energy has known that dry ash handling would be required since
September 2014, when the Coal Ash Management Act was passed. Accordingly, it should have
commenced design of the systems needed to comply with that requirement over two years ago.
') The Proposed Permit Violates North Carolina's Groundwater Rules
A. DEQ Must Impose Conditions to Prevent Further Groundwater Contamination
Because groundwater contamination is at or beyond the compliance boundary at Allen,
the state groundwater rules prohibit DEQ from issuing the proposed NPDES permit for the Allen
coal ash lagoons. We raised this point and legal support for it in 2015 comments (attached), yet
DEQ persists in authorizing a disposal system that will result in violation of groundwater quality
standards at the compliance boundary. Since 2015, groundwater contamination has continued,
and the monitoring results have become more extensive, and the violations more certain. Duke
Energy's monitoring data, reported to the state, shows exceedances for boron, chromium, cobalt,
iron, manganese, sulfate, total dissolved solids, and vanadium in its compliance boundary
monitoring wells. The majority of these exceedances represent violations, even using Duke
Energy's own over-estimated background concentrations. See Douglas J. Cosler, Ph.D., P.E.,
Amended Expert Report, attached, at 13 (29 of the 44 Compliance Boundary exceedances were
greater than the proposed provisional background concentrations (PPBC) by HDR, which
exaggerate background levels (Apr. 13, 2016)). On this record, DEQ cannot reissue a permit for
a failing wastewater treatment system without imposing new conditions to correct this long track
record of groundwater contamination.
In addition to causing violations at the compliance boundary, Duke Energy's buried coal
ash waste also continues to place nearby residential wells at an increased risk of contamination
migrating beyond the compliance boundary. We commented previously that the Groundwater
Rule bars the EMC (and DEQ acting on delegated authority) from approving an NPDES permit
that would result in "the impairment of existing groundwater uses or increased risk to the health
or safety of the public due to the operation of a waste disposal system." 15A N.C. Admin. Code
2L .0103(b)(3). DEQ has already found Duke Energy's studies deficient to show its migrating
coal ash pollution is not a threat to nearby water supply wells (receptors). The data collected at
the Allen site, in sharp contrast to the artificially constrained modeling by Duke Energy's
16

consultant, confirm what common sense predicts: that residential wells pumping water out of the
ground near the Allen coal ash disposal areas are at risk from Duke Energy's coal ash
contamination. See Douglas J. Cosler, Ph.D., P.E., Amended Expert Report, at 20-21 (Apr. 13,
2016) (noting site data that demonstrates "the potential for off-site chemical migration is
underestimated by the models").
Because this disposal system has already resulted in violations of groundwater quality
standards and will remain a threat to public health and safety if the buried ash is left submerged
in the groundwater, DEQ cannot issue the proposed NPDES permit without imposing conditions
sufficient to ensure these violations will cease.
B. DEQ Must Define Compliance and Review Boundaries and Require Groundwater
Monitoring Pursuant to the Groundwater Rule.
The Groundwater Rule directs that "[t]he [compliance] boundary shall be established by
the Director, or his designee at the time of permit issuance." 15A N.C. Admin. Code 02L
.0107(c) (emphasis added). Like the last draft permit, this draft permit also neglects to include a
map designating a compliance boundary for the Allen facility.
Duke Energy has previously misdrawn its compliance boundary to extend beneath the
riverbed, into the Catawba River/Lake Wylie. This would effectively co-opt Lake Wylie into
Duke Energy's wastewater treatment system. As one might surmise, this runs contrary to the
law. Yet, in its recent Topographic Map and Discharge Assessment Plan submitted to DEQ
pursuant to CAMA (dated April 29, 2016), Duke Energy continues to believe it can measure
compliance with groundwater standards out in Lake Wylie. See supra; see also Allen CAP 1,
Fig. 1-2. This not only defies commonsense but is legal error, for reasons we have previously
stated.
DEQ must specify a compliance boundary for the Allen plant that complies with the
requirements of North Carolina law and facilitates credible measurement of groundwater
compliance. 20 To meet that task, the compliance boundary cannot be beneath a surface water
body.
Finally, the permit must be amended to impose a robust groundwater monitoring program
that complies with the requirements of the Groundwater Rule. Currently the draft permit states
only that "[t]he permittee shall conduct groundwater monitoring to determine the compliance of
this NPDES permitted facility with the current groundwater standards ... in accordance with the
sampling plan approved by the Division. See Attachment 1." Draft Permit Condition A. (23.).
Historically, DEQ has required Duke Energy to monitor groundwater contamination only at the
compliance boundary. Attachment 1 to this draft permit does no better. The Groundwater Rule
itself requires more. All lands within a compliance boundary carry the Restricted Designation
under the Groundwater Rule; and all lands carrying the.Restricted Designation must have a
"monitoring system sufficient to detect changes in groundwater quality within the RS designated
20 Furthermore, DEQ must designate a review boundary for the Allen plant. Every NPDES permitted facility with a
compliance boundary also has a review boundary which is defined as the point "midway between a waste boundary
and a compliance boundary at which groundwater monitoring is required." 15 NCAC 02L.0102(20).
17

area." 15A N.C. Admin. Code 02L .0104(b), (d). Under the Groundwater Rule, it is not enough
to monitor at the compliance boundary to confirm violations after they happen; rather Duke
Energy must monitor groundwater within the RS -designated compliance boundary to detect
when "contaminant concentrations increase" so that "additional remedial action or monitoring"
can be required if necessary. Id. at .0104(d).
8) DEQ Cannot Re -issue a Permit with Ongoing Violations of the Removed Substances
Provision.
The draft permit would designate a new category of "seep outfalls" designed to allow
Duke Energy to operate a wastewater treatment system that leaks pollutants at locations other
than its permitted "Outfall 002 – Ash Basin" discharge point. As discussed above, by definition,
these leaks do not discharge through the permitted outfall structures, which include risers
designed to ensure that settled pollutants remain in the lagoons and water is discharged from the
top of the lagoon to the outfall discharge pipes. As we have commented previously, this change
in policy impermissibly erodes a longstanding standard condition applicable to the existing
permit, the draft permit, and other similar NPDES permits. Both the draft permit and the
existing permit include an important standard condition in Part II, known as the Removed
Substances provision which provides:
"Solids, sludges ... or other pollutants removed in the course of treatment or
control of wastewaters shall be utilized/disposed of... in a manner such as to
prevent any pollutant from such materials from entering waters of the State or
navigable waters of the United States."
Part I I.C.6 (emphasis added).21
This provision prohibits pollutants removed by waste treatment facilities from escaping
out into surface and groundwater. As such, the provision is an essential implementation of state
policy and good practice requiring pollutants removed from wastewater through the operation of
a wastewater treatment plant not to be summarily discharged into waters, in frustration of the
core purpose of the state and federal pollution control programs.
Duke Energy's own analysis, including borings, has revealed that coal ash at Allen—the
"removed substance"—is sitting as much as 50 to 90 feet below the groundwater table, and its
own models predict up to 60 feet worth will remain submerged after dewatering. See Duke
Energy, Comprehensive Site Assessment Figures (geologic cross sections); Duke CAP 1, part I
(cap -in-place simulations); Cosler Am. Report at 26-27. Groundwater is a water of the State.
N.C. Gen. Stat. § 143-212(6). Coal ash is a "pollutant" regulated under the Clean Water Act.
See supra. The Department cannot authorize this ongoing violation of an existing permit term by
purporting to issue a new permit with identical terms while the facility is in violation of the
existing permit. The Department must require Duke Energy to remove the "removed
substances" from the waters of the State.
Z' Available on DEQ's website at http://portal.nedenr.org/c/document library/get_file?uuid=b32f8a66-541c-4cf5-
8ba6-03e381edb2da&groupId=38364.

f- t,
9) Duke Energy's 316(a) Demonstration is Inadequate to Justify a Variance from North
Carolina's Water Quality Standard for Temperature.
We commented previously that Duke Energy's demonstration under 316(a) of the CWA,
itself a necessary predicate to getting a variance from temperature limits, was insufficient to
support a variance. DEQ continues to rely on the faulty demonstration, however, in finding a
thermal variance is justified.
Section 316(a) of the Clean Water Act provides narrow authority for a variance from
water quality standards for temperature, but only when such effluent limits are "more stringent
than necessary to assure the protection and propagation of a balanced, indigenous population of
shellfish, fish, and wildlife." 33 U.S.C. § 1326(a).
EPA regulations define a balanced, indigenous population as "a biotic community
typically characterized by diversity, the capacity to sustain itself through cyclic seasonal
changes, presence of necessary food chain species and by a lack of domination by pollution
tolerant species." 40 C.F.R. § 125.71(c). An industrial discharger seeking a § 316(a)
temperature variance bears the burden of demonstrating both (1) that effluent limits otherwise
required by the Clean Water Act are "more stringent than necessary" to protect the balanced,
indigenous population and (2) that the thermal discharge allowed by such a variance will protect
the balanced, indigenous population in the future: See 33 U.S.C. § 1326; 40 C.F.R. § 125.73(a)
(the applicant must demonstrate that water quality standards are more stringent than necessary);
In Re Dominion Energy Brayton Point, 12 E.A.D. 490, 552 (2006) (EPA Environmental Appeals
Board held that § 1326(a) and EPA regulations "clearly impose the burden of proving that
the ... thermal effluent limitations are too stringent on the discharger seeking the variance").
For the reasons we stated previously, Duke Energy has wholly failed to make the
necessary showing, and instead relies upon the shift over time towards thermally tolerant species
to support its continuing variance. Ignoring the unimpacted aquatic community that would be
there but for Duke's heated discharge, and instead relying on the already thermally tolerant
community present, would allow Duke Energy to reap the benefit of changes to the aquatic
community inflicted by thermal pollution in prior permit cycles. For this and other reasons, the
316(a) demonstration will not support a variance from water quality standard for temperature.
Even if the demonstration was sufficient to support a variance, neither the permit nor the
fact sheet illuminate the spatial extent of the variance. DEQ's own regulations allow departure
from the temperature limit in a "reasonable portion of the waterbody." See 15A N.C. Admin.
Code 02B .0208 (also requiring the thermal variance procedure under 316(a) of the CWA). As
our prior comments have pointed out, EPA has flagged Duke Energy's failure to identify the full
scope of the thermal plume among ongoing problems with Duke Energy's 316(a)
demonstrations.
19

The multiple deficiencies in Duke Energy's 316(a) demonstrations would need to be
remedied before any valid thermal variance could issue. 22 Absent a meritorious demonstration,
the applicant must comply with water quality standards.
10) Conclusion
The draft permit is inconsistent with the requirements of North Carolina and federal law.
The permit must be withdrawn, rewritten, and reissued for the public to comment on an NPDES
permit that protects water quality and the public interest.
Si ,
Thomeodw
Austin DJ Gerken
Amelia Y. Burnette
Patrick Hunter
Southern Environmental Law Center
22 South Pack Square, Suite 700
Asheville, NC 28801
828-258-2023
tlodwickgselcnc.org
di gerkengselcnc.org
[e-mail]
phuntergselcnc.org
Counsel for
Catawba Riverkeeper Foundation,
Sam Perkins, Catawba Riverkeeper®
421 Minuet Lane Suite #205
Charlotte, NC 28217
[e-mail]
22 As we have stated in prior comments to DEQ, only the EMC can issue a variance from the temperature standard
and the EMC as currently constituted cannot do so. To administer the Clean Water Act pursuant to delegated
federal authority, the state "board or body which approves all or portions of permits shall not include as a member
any person who receives, or has during the previous 2 years received, a significant portion of income directly or
indirectly from permit holders or applicants for a permit." 40 C.F.R. § 123.25(c). A permit cannot issue in this
instance because the delegated permitting authority, the EMC NPDES Committee, cannot meet its regulatory
requirements for non -conflicted members.
O1;

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