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HomeMy WebLinkAboutNC0004979_Comments to Draft Permit_20161213SOUTHERN ENVIRONMENTAL LAW CENTER Telephone 828-258-2023 22 SOUTH PACK SQUARE. SUITE 700 Facsimile 828-258-2024 ASHEVILLE, NC 28801-3494 May 5, 2015 VIA EMAIL AND U.S. MAIL Mr. S. Jay Zimmerman, Acting Director DENR Division of Water Resources 1617 Mail Service Center Raleigh, N.C., 27699-1617 jay.zimmerman@ncdenr.gov publiccomments@ncdenr.gov Re: Draft NPDES Permit — Allen Steam Station, #NC0004979 Dear Mr. Zimmerman: i ECEWED/NiODENWR DEC 13 2016 Water Qtialiiy Permitting Section On behalf of the Catawba Riverkeeper Foundation, Inc. (the "Foundation"), the Waterkeeper Alliance and the Sierra Club, we submit the following comments on the draft National Pollutant Discharge Elimination System ("NPDES") permit noticed for public comment by the North Carolina Department of Environment and Natural Resources ("DENR"), Division of Water Resources ("DWR"), which purports to allow an unlimited number of unspecified and uncontrolled point source discharges from the Allen Steam Station ("Allen") coal ash lagoons owned and operated by Duke Energy Carolinas LLC ("Duke") into Lake Wylie ("the Lake") on the Catawba River. Each of the undersigned organizations have many members who rely on the quality of Lake Wylie and the Catawba River for their livelihoods and additional members who regularly fish, swim, boat and regularly recreate on these waters. As set forth below, the proposed permit violates the Clean Water Act ("CWA") because it purports to allow uncontrolled leakage from this wastewater treatment facility rather than requiring the leaks to be stopped. For this and other deficiencies highlighted below, the draft permit must be withdrawn, substantially revised and reissued for public comment. I. The Proposed Permit Violates North Carolina's Groundwater Rules A. DENR Must Impose Conditions To Prevent Further Groundwater Contamination Because of groundwater contamination at or beyond the compliance boundary at Allen, the state groundwater rules prohibit DENR from issuing the proposed NPDES permit for the Allen coal ash lagoons. Charlottesville • Chapel Hill • Atlanta • Asheville • , Birmingham • Charleston • Nashville • Richmond • Washington. DC 100% recycled paper North Carolina's groundwater rules state that "the [Environmental Management] Commission will not approve any disposal system subject to the provisions of G.S. 143-215.1 which would result in a violation of a groundwater quality standard beyond a designated compliance boundary." 15A N.C.A.C. 2L .0103(b)(2). This prohibition applies to the Allen permit. The draft permit states on its face that it is issued under the authority of "North Carolina General State 143-215.1." The Allen coal ash lagoons are qualifying "disposal systems" for purposes of the Groundwater Rule, with a compliance boundaries set by the rule. 15A N.C.A.C. 2L.0107. Because DENR issues this permit under authority delegated by the Environmental Management Commission (15A NCAC 02A .0105), this prohibition applies to DENR as well. There is no question that the disposal system authorized by this permit will result in a violation of a groundwater quality standard at a designated compliance boundary. It already has. There is an extensive history of documented groundwater contamination at the compliance boundary at Allen. Indeed, DENR has ordered Duke Energy to undertake assessment activities and filed an enforcement case in Superior Court nearly two years ago seeking injunctive relief to abate groundwater contamination at the site. In its enforcement case DENR alleged, under oath, that exceedances of the groundwater standards for nickel, iron, and manganese, uncorrected, "pose a serious danger to the health, safety, and welfare of the people of the State of North Carolina and serious harm to the water resources of the State." Complaint % 117-119, 197. Duke's own monitoring well data indicates additional exceedances for boron. Revised Groundwater Assessment Plan at 6. These exceedances have been documented since at least 2011. A 2014 drinking water supply well and receptor survey map indicates a potential plume of groundwater contamination stretching beyond Duke's compliance boundary, past its property boundary and onto private property. Allen Drinking Water Receptor Survey, Fig. 1. The existence of this plume is supported by the monitoring data recently released indicating the presence of coal -ash constituents in 51 private water supply wells surrounding the Allen plant mentioned below. On this record, DENR cannot reissue a permit for a failing wastewater treatment system without imposing new conditions to correct this long track record of groundwater contamination. Similarly, the Groundwater Rule bars the EMC (and DENR acting on delegated authority) from approving an NPDES permit that would result in "the impairment of existing groundwater uses or increased risk to the health or safety of the public due to the operation of a waste disposal system." 15A N.C.A.C. 2L .0103(b)(3). Here too, no prognostication is required to determine if the coal ash ponds will violate this prohibition. The Allen coal ash ponds have already caused an impairment of existing groundwater uses. In February 2015 DENR began collecting groundwater samples from residential wells within 1,000 feet of Allen ash ponds. On April 16, 2015, DENR advised 51 homeowners neighboring the Allen plant 96% of the homes sampled — to stop drinking or cooking with water from their residential wells because they have 2 7 been contaminated with constituents characteristic of coal ash including vanadium and hexavalent chromium. Groundwater violations at the compliance boundary for Allen and impairment of neighboring groundwater uses will only continue, in violation the Groundwater Rule, if the ash is allowed to remain in the unlined lagoons where it will continue leaching pollutants into the groundwater. Because this disposal system has already resulted in violations of groundwater quality standards and will continue to do so, DENR cannot issue the proposed NPDES permit without imposing conditions sufficient to ensure these violations will cease. Requiring final closure of the Allen ash impoundments and removal of the ash to safe, dry lined storage is the only assured solution to arresting ongoing violations of groundwater quality standards at the compliance boundary. B. DENR Must Define Compliance and Review Boundaries and Require Groundwater Monitoring Pursuant to the Groundwater Rule. The Groundwater Rule directs that "[t]he [compliance] boundary shall be established by the Director, or his designee at the time of permit issuance." 15A NCAC 02L .0107(c) (emphasis added). The draft permit as distributed to the public for comment includes no map designating a compliance boundary for the Allen facility. This is a critical omission. Prior maps issued by DENR for Allen have drawn the compliance boundary for the facility,so that it extends underneath Lake Wylie. But DENR does not have the discretion to draw a compliance boundary past the property boundary of Duke Energy. 15 NCAC 02L .0107(a), (b). Because Lake Wylie was formed by the impoundment of the Catawba River, a navigable river held in public trust by the state of North Carolina for the benefit of all citizens, Duke Energy does not own the lake bed underneath Lake Wylie, and the compliance boundary must be drawn to stop at the lake shore. Furthermore, the General Assembly has clarified that "[m]ultiple contiguous properties under common ownership" may be treated as a single property for purposes of drawing the compliance boundary, but only if they are "permitted for use as a waste disposal system." N.C.G.S. § 143-215.1. Even if Duke Energy wants to assert that it owns title to the lakebed of the Lake Wylie, Duke Energy cannot claim, and DENR cannot, as a matter of federal law treat a water of the United States (Lake Wylie) as part of a waste disposal site. .This requirement of law, that compliance boundaries cannot extend underneath adjacent jurisdictional waters, is also common sense. As DENR has acknowledged, groundwater routinely discharges into surface water bodies and most surface waters serve as groundwater divides. This makes it impossible to measure compliance with groundwater standards under a surface water body because the groundwater constantly interacts with the surface water. For that reason, Duke Energy's Groundwater Assessment Plan for the Allen site proposes to assess compliance with it's the compliance boundary, as previously drawn by DENR, by `modeling" the contamination in groundwater under Lake Wylie. DENR must specify a compliance boundary for the Allen plant that complies with the requirements of North Carolina law and facilitates credible measurement of groundwater compliance.' To meet that task, the compliance boundary cannot be beneath a surface water body. Finally, the permit must be amended to impose a robust groundwater monitoring program that complies with the requirements of the Groundwater Rule. Currently the draft rule states only that "[t]he permittee shall conduct groundwater monitoring to determine the compliance of this NPDES permitted facility with the current groundwater standards ... in accordance with the sampling plan approved by the Division." Draft Permit Condition A(14). Historically, DENR has required Duke Energy to monitor groundwater contamination only at the compliance boundary. But the Groundwater Rule requires more. All lands within a compliance boundary carry the Restricted Designation under the Groundwater Rule; and all lands carrying the Restrict Designation must have a `monitoring system sufficient to detect changes in groundwater quality within the RS designated area." 15A NCAC 02L .0104(b), (d) (emphasis added). Under the Groundwater Rule, it is not enough to monitor at the compliance boundary to confirm violations after they happen; rather Duke Energy must monitor groundwater within the RS -designated compliance boundary to detect when "contaminant concentrations increase" so that "additional remedial action or monitoring" can be required if necessary. Id. at .0104(d). H. The Draft Permits Sets Deficient Technology -Based Effluent Limits Any NPDES permit issued by DENR for the Allen facility must set effluent limits reflecting the best available technology to eliminate discharges whenthat core objective of the Clean Water Act is achievable for a given waste stream. At the Allen plant, the best available technology is zero discharge for all major waste streams involving its ash impoundments, including the contaminated seeps that the draft permit proposes to authorize into perpetuity. Ultimately, the guaranteed solution to stopping seeps is permanently and responsibly closing these failing wastewater treatment ponds and removing residual coal ash to a lined landfill. A. DENR Failed to Require Zero Liquid Discharge as the BAT for Waste Streams at the Allen Plant The Clean Water Act requires this NPDES permit to impose technology-based effluent limits ("TBELs") reflecting "the minimum level of control that must be imposed in a permit." 40 C.F.R. § 125.3. For the pollutants at issue in the Allen permit, TBELs must reflect the pollution reduction achievable by "application of the best available technology economically 1 Furthermore, DENR must designate a review boundary for the Allen plant. Every NPDES permitted facilities with a compliance boundary also has a review boundary which is defined as the point "midway between a waste boundary and a compliance boundary at which groundwater monitoring is required." 15 NCAC 02L.0102(20). 4 achievable" ("BAT"'). 40 CFR 125.3(a)(2)(iii)-(v). Whether or not Duke Energy implements the specific technology determined to be the BAT, it must comply with the effluent limitations that could be achieved by the BAT. The BAT sets a stringent treatment standard that requires "elimination of discharges of all pollutants if... such elimination is technologically and economically achievable." 33 U.S.C. § 1311(b)(2)(A). EPA's current effluent limitation guidelines (ELGs) for coal-fired power plants do not define the treatment that is "technologically and economically achievable" for most of the waste streams relevant to the Allen permit, including FGD waste, bottom ash transport water, ash pond discharge, and ash pond seeps. "Where promulgated effluent limitations guidelines only apply to certain aspects of the discharger's operation, or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis in order to carry out the provisions of the Act." 40 C.F.R. § 125.3(c)(3). As a result, DWR must use "best professional judgment" ("BPJ") to establish BAT for waste streams not subject to the 1982 effluent limitation guidelines. 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 125.3(a). When applying BPJ "[i]ndividual judgments []take the place of uniform national guidelines, but the technology-based standard remains the same." Texas Oil & Gas 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. North Carolina regulations require that "[a]ny state NPDES permit will contain effluent limitations and standards required by ... the Clean Water Act which is hereby incorporated by reference including any subsequent amendments and editions." 15A N.C. Admin. Code 211.0118. There are two steps in determining BAT. First, the permit writer must assess what technologies are "available." Second, of the available technologies the permit writer must assess which are economically achievable. The technology that obtains the highest reduction in pollutants and is also economically achievable is the BAT. The initial determination under BAT, technological availability, is "based on the performance of the single best -performing plant in an industrial field." Chem. Mfrs. 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"). Further, "Congress contemplated that EPA might use technology from other industries to establish the [BAT]." 780 F.2d at 453 (emphasis added). International facilities can also be used to define BAT. Am. Frozen Food Inst. v. Train, 539 F.2d 107, 132 (D.C. Cir. 1976). Even pilot studies and laboratory studies can be used to establish BAT; the technology need not be in , 5 M commercial use to be considered available. See American Paper Inst. v. Train, 543 F.2d 328, 353 (D.C. Cir. 1976). After completing an expansive technological availability analysis, DWR must determine if the technology is economically achievable, i.e., whether it can "be reasonably borne by the industry." Waterkeeper Alliance, Inc. v. U.S E.P.A., 399 F.3d 486, 516 (2d Cir. 2005)(citations omitted). For a facility -specific BPJ determination, a technology is economically achievable if it can be reasonably borne by the facility owner; in this case, Duke Energy. Here, DWR inexplicably limited its consideration of technological and economic availability to two facilities in the same industry, owned by the same parent company, located within 125 miles of the Allen plant. Allen Fact Sheet at 4. This level of analysis is falls short of DWR's obligations under the Clean Water Act. An adequate review of existing technologies reveals multiple technologies which achieve zero liquid discharge for waste streams from FGD systems, bottom ash transport water,2 and ash pond discharge. The costs of these technologies can reasonably be borne by Duke Energy, the nation's largest utility. Because the Clean Water Act mandates that BAT limits eliminate a discharge if, "on the basis of information available . . such elimination is technologically and economically achievable," zero liquid discharge must be incorporated as the BAT for these waste streams. 33 U.S.C. § 1311(b)(2)(A). 1) Zero Liquid Discharge is BAT for FGD Wastewater A zero -liquid discharge limit for FGD wastewater is the BAT for the Allen Plant. It cannot reasonably be disputed that technology is available which would achieve zero liquid discharge for FGD wastewaters. EPA Region 1 recently found zero liquid discharge to be the BAT for the Merrimack Station in New Hampshire because "technologies are capable of eliminating the direct discharge of pollutants." Merrimack Station Revised NPDES Permit No. NH0001465 Fact Sheet at XX. The specific technology, physical -chemical treatment plus vapor compression evaporation ("VCE") and crystallizer systems, is also being used to achieve zero liquid discharge at Kansas City Power & Light's Iatan plant and several Italian plants. Id. One purveyor of mechanical evaporation technology, Veolia Water Solutions and Technologies, describes it as "a simple and economical approach to [zero liquid discharge].0 To quote EPA: these systems "are the best performing treatment systems for the purpose of reducing discharges of pollutants to the Nation's waters. In other words, these systems make the greatest `... further progress toward the national goal of eliminating the discharge of all pollutants. ' 33 USC 1311 (b) (2) (A). " Revised NPDES Permit No. NH0001465 Fact Sheet at 17 (emphasis in original). 2 Duke is already meeting its zero liquid discharge BAT requirements for fly ash transport water through utilization of a dry fly ash handling system. 3 http://www.et3a.gov/reizionl/nodes/MmTimarkstation/pdfs/ar/AR102O.pdf 6 With technology is available, zero liquid discharge is the BAT for the Allen plant if the cost of such technology can reasonably be borne by Duke. Here, we know that it can because Duke has already installed zero liquid discharge technology at its Mayo plant and that plant remains economically viable. That is, Duke installed zero liquid discharge technology at the Mayo plant at a predicted cost of $120,000,000 despite that fact that, at the time, Duke did not consider zero liquid discharge to be the BAT. Mayo NPDES No. NC00038377 Fact Sheet at 2. 2) Zero Liquid Discharge is BAT for bottom ash transport water Similarly, the technology necessary for zero liquid discharge of bottom ash transport water is also indisputably available. Over 30% of coal-fired power plants and petroleum coke - fired power plants already utilize these technologies4 and 83% of coal-fired units built in the last twenty years installed dry bottom ash handling systems. 78 Fed. Reg. 34470. In considering new effluent limitation guidelines for steam electric power generators, EPA concluded that "all plants ... are capable of installing and operating dry handling or close -loop systems for bottom ash for bottom ash transport water." Id. Duke Energy has installed zero liquid discharge bottom ash handling systems at least at two plants in its North Carolina fleet, Cliffside and Mayo. These plants have remained economically viable with dry bottom ash handling systems in operation. EPA estimated that installation of zero liquid discharge bottom ash handling systems would be particularly economically feasible for plants with a generating capacity over 400 MW, such as Allen. 78 Fed. Reg. 34470. Moreover, the Allen plant is required to convert to dry bottom ash handling within the term of this NPDES permit — by 2019. N.C.G.S. § 130A -309.210(f). Because zero liquid discharge technology is available, is economically achievable, and will soon be required by the State of North Carolina, it must be the BAT for bottom ash transport water. 3) Zero Liquid Discharge is BAT for ash pond discharge For decades, the ash management system at the Allen plant has operated by sluicing wet ash to ponds for long -term -storage. In the ponds, ash is removed from the ash transport water through settling. The removed ash, now no longer a part of the wastewater treatment system, is then stored in the ponds while the ash transport water is discharged to Lake Wylie. Technology- based effluent limitations apply to the ash transport water being discharged to Lake Wylie as the result of applying TBELs to particular waste streams (FGD, bottom ash transport water, etc), but TBELs also apply to separate discharges from the removed ash. To wit, "[t]echnology-based effluent limitations shall be established ... for solids, sludges, filter backwash, and other pollutants removed in the course of treatment or control of wastewaters in the same manner as for otherpollutants." 40 C.F.R § 125.3(g)(emphasis added). 4 For a list of available technologies see 78 Fed. Reg.34453-34454. 7 As applied to ash ponds, this regulatory system contemplates two different TBELs: one for the permitted outfall and another for the discharge of pollutants removed in the course of treatment or control of wastewaters. There is no question that discharges from removed substance via seeps or other means, which are themselves contaminated with residual coal ash that has settled out of the impoundment, are subject to TBELS and an independent BAT analysis like any other waste stream. Indeed, DWR has recognized that TBELs must be set for discharges from the "removed substances" through seeps (Outfalls 010 and 011) as well as for the historically permitted outfall (Outfall 002). We note that DWR's own fact sheet acknowledges that "[t]he CWA NPDES permitting program does not normally envision permitting of uncontrolled releases from treatment systems; such releases are difficult to monitor and control, and it is difficult to accurately predict their impact on water quality. Releases of this nature would typically be addressed through an enforcement action requiring their elimination rather than permitting." Draft Allen Fact Sheet at 2. Nonetheless, DWR takes the position that seeps at Duke Energy's Allen facility somehow get preferential treatment as a "unique circumstance where the occurrence of the seeps is attributable to an original pond design that will require long-term action to fully address." Fact Sheet at 2. Regardless, "unique circumstances" do not excuse DWR from correctly calculating BAT and applying TBELs. Just as DWR failed to complete the proper analysis for determining BAT as applied to FGD waste and bottom ash transport water, DWR failed to follow the proper procedure in calculating the BAT for discharges from "pollutants removed in the course of treatment or control of wastewaters" at the Allen plant, resulting in improper TBELs. The technology to achieve zero liquid discharge from removed substances in ash basins is readily available, economically achievable, and is currently being implemented at ash basins across South Carolina and at Duke Energy's own facilities in North Carolina — closure of the ponds and removal of the ash to dry, lined storage to ensure it does not continue to be a source of unabated and polluted seepage. Moreover, the fact sheet concedes that zero discharge of seeps is achievable and ultimately required, but fails to set TBELS or a schedule for implementation reflecting that technological solution. a. Closure of these failing wastewater treatment plants and removal of the coal ash is, of course, technologically achievable and therefore required by law. As explained above, the BAT for internal waste streams currently discharging to the ash ponds is zero liquid discharge. DENR and EPA both require wastewater treatment facilities that are no longer in service to be closed pursuant to an approved closure plan that addresses the fate of residual sludge removed in the wastewater treatment process. The fact sheet acknowledges that additional "action to close or otherwise address coal ash impoundments and their threats to surface waters and groundwater" is necessary. Fact Sheet at 3. 91 Moreover, even if the Allen plant had a continuing need for an onsite wastewater treatment facility, the current wastewater treatment facility is failing and releasing "uncontrolled" seeps into nearby surface waters, and cannot be reauthorized. Wastewater treatment systems operate by retaining pollutants removed by its designed treatment system and then discharging treated water. By allowing uncontrolled and undesigned leaks and flows from the walls, sides, bottom, and dam of this supposed wastewater treatment facility, DENR would be permitting a wastewater treatment facility that is fundamentally defective. Such authorization defeats the very purpose of the waste treatment system authorized by the permit — the treatment and removal of pollutants from industrial wastewater. Uncontrolled seeps, and the removed wastewater pollutants they contain, bypass the controlled release of treated and monitored wastewater via the riser system at the permitted discharge. Because the Allen plant has no continuing legitimate need for these wastewater treatment ponds and cannot obtain reauthorization for these failing wastewater treatment facilities, DENR must mandate closure of the ponds and elimination of contaminated seeps through the best available technology — removing the source of that contamination, the residualcoal ash, to dry lined storage. DENR does not need to look far for proof that this solution is achievable. Multiple examples are found right here in the Carolinas. In South Carolina, SCE&G had unpermitted seeps and groundwater contamination at its Wateree Station facility on the portion of the Catawba River called the Wateree River. Today, SCE&G is in the midst of removing all its coal ash from unlined lagoons at Wateree Station to safe, dry, lined storage in a landfill away from the Wateree River. SCE&G has already removed approximately 600,000 tons of coal ash from its Wateree facility. In filings with the South Carolina Public Service Commission, SCE&G has publicly stated its commitment to clean up the coal ash at its other facilities in South Carolina as well. Similarly, South Carolina's Public Service Authority utility, known as Santee Cooper, has also committed to excavate its coal ash from unlined lagoons and store it in dry, lined landfills or recycle it for concrete. Santee Cooper's Executive Vice President of Corporate Services described the removal and recycling of the unlined coal ash from the lagoons as "cost- effective" and a "triple win" for the utility's customers, the environment, and the local economy. At last report, Santee Cooper has already removed 164,000 tons from its Grainger Generating, Station in Conway, SC, where unlined coal ash at a retired facility had contaminated the groundwater and adjacent wetlands with arsenic and other pollutants. Santee Cooper has removed 1201000 tons from its Jefferies Generating Station in Moncks Corner, SC. And it will begin removing the coal ash from its Winyah Generating Station in Georgetown, SC, in May of this year. Also, in April 2015, conservation groups signed an agreement with Duke Energy for Duke to remove all the coal ash — more than three million tons — from its W. S. Lee facility on the Saluda River in Anderson County, South Carolina. Attachment A. Duke will remove all the 9 coal ash to dry, lined storage away from the river, including the ash from two leaking lagoons and in an ash storage area near the lagoons. In September 2014, the South Carolina Department of Health and Environmental Control entered into a consent enforcement agreement with Duke Energy in which Duke was required to remove coal ash from two other storage areas on the Saluda River's banks at the Lee facility. Attachment B. Duke Energy's other coal ash site in South Carolina, the H.B. Robinson facility, stores 4.2 million tons of coal ash on the shore of Lake Robinson and Black Creek in Darlington County, SC. This site has serious groundwater contamination and a history of low-level radioactive waste being disposed of in the unlined coal ash basin. On April 30, 2015, after months of public pressure from conservation groups calling for a cleanup, Duke publicly committed to excavating all the coal ash at Robinson' and storing it in a dry, lined landfill on site. Sammy Fretwell, "Duke to clean up toxin -riddled waste pond in Hartsville," The State (Apr. 30, 2015). Finally, Duke Energy has agreed to remove ash at four facilities in North Carolina: Asheville, Dan River, Riverbend, and Sutton. These facilities are plainly implementing a technology which results in the elimination of discharges — the ultimate goal under the Clean Water Act. 33 U.S.C. -§ 1311(b)(2)(A). The technology to achieve zero liquid discharge from the ash basins is not only available, but is economically achievable. SCE&G and Santee Cooper have both stated that ash removal has not affected the economic viability of its plants or had any effect on customer rates. In fact, Santee Cooper has described the decision to remove ash as a win -win-win that is good for its customers.5 Ash removal projects in North Carolina, such as at Duke Energy's Asheville plant where 3 million tons of ash have already been removed, also demonstrate the economic benefit, more than "achievability," of removing stored ash from ponds. Zero liquid discharge is both technologically and economically achievable and represents BAT for discharges from the removed substances in the Allen coal ash ponds. And it eliminates the continuing seepage into groundwater and surface waters, as well as the risk of a catastrophic dam failure or spill, such as Duke Energy's Dan River spill in February 2014 b. The permit acknowledged that zero discharge is attainable for seeps but fails to impose corresponding TBELS or any schedule of completion. Not only has DENR failed to account for the proven solution of removing coal ash, the fact sheet itself concedes the existence of a zero discharge technological solution available to Duke Energy to address coal ash seeps but fails to impose TBELs based on that technology. 5 http://www.wcne.com/story/news/pohties/2014/07/04/11127148/ 10 The Fact Sheet acknowledgesthat "[r]eleases of this nature would typically be addressed through an enforcement action requiring their elimination ...." Fact Sheet at 2. The Fact Sheet further recognizes the availability of a zero discharge solution — collection and "rerouting the discharge" and "discontinuing the discharge." Condition A(21) n.l. Nonetheless, DENR requires no action from Duke Energy to complete those measures, attempting to defer instead to the eventual completion of a state process under the Coal Ash Management Act. This approach is fraught with problems. Fundamentally, a deferred an unenforceable promise of future action under a separate state statute does not satisfy the requirements of the Clean Water Act. First, CAMA is not a part of the North Carolina's federally approved delegated CWA program, cannot pre-empt CWA requirements, and indeed has not been approved by EPA as part of the delegated CWA authority for review and issuance of NPDES permitsDENR has an obligation under federal law to put in place a Clean Water Act permit that complies with and carries out the requirements of the Clean Water Act, regardless of any state law provisions. Indeed, EPA can withdraw North Carolina's authority to manage its own CIean Water Act program if the State fails to follow federal regulations or if the "State legislature .: strik[es] down or limit[s]" a state agency's authority to implement the Clean Water Act consistent with federal law. 40 C.F.R. § 123.63(a)(1)(i-ii). Recognizing this, the General Assembly was clear that the requirements of Coal Ash Management Act are "in addition to any other requirements for identifying discharges," "for the assessment of discharges," or "for corrective action tgo prevent unpermitted discharges" from coal ash impoundments. N.C.G.S. § 1320A - 309.212(a)(1), (b), (c). Therefore, the Allen permit, which is issued under the Clean Water Act, must require the cleanup of these primitive coal ash storage sites and the removal of the ash to safe, dry, lined storage — apart from any requirements of CAMA. Second, while the fact sheet is explicit that permitting illegal seeps is "an interim measure" pending implementation of the BAT, the draft permit does not require implementation of the ultimate solution. The Clean Water Act requires the ultimate solution. DENR must require compliance with the discharge limits achievable by the implementation of the best available technology now. EPA regulations unambiguously prolu'bit the use of compliance schedules6 to comply with BAT requirements. Under EPA regulations, DWQ may use compliance schedules to achieve "compliance with CWA [Clean Water Act] and regulations ... as soon as possible, but not later than the applicable statuto , deadline under the CWA." 40 C.F.R. § 122.47(a)(1)(emphasis added). Here, the relevant statutory deadlines have passed for the permitted wastestreams. See 33 U.S.C. § 1311(b)(2). "[A] permit writer may not establish a compliance schedule in a permit for TBELs [technology-based effluent limits] because the statutory deadlines for meeting technology standards ... have passed." EPA Permit Writers Manual, Section p. 9-8 (2010); see 6 EPA defines a compliance schedule as "a schedule of remedial measww, ... including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) ...: ' 40 CY R § 122.2. 11 also EPA Permit Writers Manual, Section 9.1.3 p. 148 (1996). Thus, EPA regulations prohibit use of compliance schedules to comply with attainable BAT limits for seeps. Even if DENR did have the authority to delay compliance with limits attainable through an acknowledged BAT, the draft permit does not impose a valid a compliance schedule. The Fact Sheet notes that installation of a BAT solution for seeps would require construction and time to implement, but sets no time limits for implementation of those requirements. A compliance schedule must impose "an enforceable sequence of interim requirements" leading to Clean Water Act compliance. 40 C.F.R. § 122.2 (emphasis added).. Under a valid compliance schedule, the time between interim dates must not exceed one year. id. The Draft Permit requires no concrete steps towards ultimate achievement of the zero discharge BAT standard acknowledged by the draft permit as attainable for seep discharges. M. The TBELs set by the Permit are Deficient Even Under DENR's Faulty Determination of the BAT For Ash Ponds. Without explanation, DENR recognizes that technology-based effluent limits set by the permit for mercury, arsenic, selenium and nitrate from the coal ash seeps can be met through a variety of technologies including "installation of the treatments system, rerouting the discharge to the existing treatments system, or discontinuing the discharge." Condition A(21) n.l. As explained above, the proven solution of closing ash ponds and removing ash, together with DENR's acknowledgement that other zero discharge options exist for the seep waste stream, confirm that zero discharge is the BAT for seeps. Nonetheless, DENR appears to have set TBELs for seeps based on the lesser technological option of installing a wastewater treatment system. However, even taking DENR's deficient approach to the BAT at face value, DENR has failed to set TBELs achievable by implementation of a wastewater treatment system for the seep waste streams from "Outfall 10" and "Outfall 11" and the primary discharge from Outfall 2. First, the permit sets technology-based effluent limitations (TBELs) for only one metal, Mercury, from Outfall 2. But DENR offers no reliable scientific basis for using,mercury as the sole moxy for the mobility of all heavy metals in .the coal ash discharge. Coal ash contains different concentrations of various contaminants depending on the origin of the coal, and each of these contaminants may behave very differently depending upon the site-specific conditions. Trace metals can form complexes with ions (such as chloride or sulfate) or dissolved organic carbon. Some metals form complexes much more readily than others. These complexes change the speciation of the metal in the water and thus can greatly impact its mobility (typically making it more mobile). Mobility of different metals can also be significantly impacted by pH or other site-specific factors. DENR, instead, defends this assumption with the statement in the new draft ELG's for power plants that four parameters (total Arsenic, Total Mercury, Total Selenium, and Nitrate) are 12 IL acceptable proxy parameters for all other metals in the coal ash impoundment waste stream. But even if those four parameters could collectively stand in for all other contaminates at all power plants, DENR sets TBEL limits for only one of them for out Outfall 2 — Mercury. This omission is glaring in that DENR is clearly aware that the ash pond has the potential to discharge any of the four metals it identifies as "proxies" (and many more) because it purports to set WQBELs for those same parameters from Outfalls 10 and 11. If the ash pond discharges a pollutant, it must be analyzed under the Clean Water Act and a TBEL assigned that ensures that it is treated through the best available technology. Although DENR sets limits for all four proxy metals nominated by EPA at the FGD internal Outfall 5, the draft permit ignores the contribution of bottom ash and other waste streams to the arsenic, selenium and nitrate/nitrite loading in the ash basins. DENR must set independent TBELs for Outfall 2, "Outfall 10," and "Outfall 11." Thus, relying on mercury as the only TBEL metal means significant contaminants in the Allen seep discharges may not be controlled. Metals such as cadmium,.nickel, and zinc are typically present in coal ash in greater concentrations than mercury — often orders of magnitude greater. Accordingly, TBELs need to be added for thallium, vanadium, cadmium, nickel, and zinc. Data from groundwater monitoring wells surrounding the ash ponds as well as from nearby residential drinking water wells reveal the presence of unsafe levels of vanadium and nickel attributable to the Allen ash ponds. DWR's own monitoring data referenced as justification for establishing maximum allowable parameter concentrations from seeps confirms that the ponds are discharging cadmium, nickel, and zinc at far greater quantities than the TBEL set for mercury. Draft Permit at 14. The only other TBELs set by the permit for Outfall 2 are for Copper and Iron, but those limits apply only "during a chemical metal cleaning." Condition A.(2) n.1. Because metal cleaning wastes currently discharge to the very large volume of wastewater in the ash pond, there is no reliable justification for limiting the application of TBELs to the specific days when metal cleaning is occurring, without accounting for the time required for the metal cleaning waste stream to assimilate into the contents of the ash basin and eventually impact the permitted discharge at Outfall 2 and the new "Outfall 10" and "Outfall 11.11 Seep sampling collected by the Catawba Riverkeeper Foundation as well as seep sampling performed by DENR confirms that copper and iron are present in the ash ponds and being discharge on a regular basis even when metal cleaning wastes are not actively being discharge to the ponds. EPA's Draft Merrimack Station NPDES permit set TBELs for many more pollutants than DENR did for Allen's Outfall 002. EPA, Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire (Sept. 23, 2011), at 48-49. Attachment C. In addition to the four pollutants DENR included for Outfall 002, EPA included TBELs for cadmium, chromium, copper, lead, manganese, zinc, chlorides, and total dissolved solids. Technology-based numerical effluent limitations for these substances should be added to 13 the Allen permit. Additionally, the Allen permit should include TBELs for boron and sulfates which Duke Energy has asserted are typical of contamination in the ash pond. As explained above, the BAT for waste streams into and out of the ash ponds is zero discharge. But even if zero discharge could be defensibly ignored, the draft permit must be revised to set responsible TBELs for the ash pond discharges from Outfall 2,"Outfall 10," and "Outfall l 1." Secondary treatment options for ash pond discharge are now established and would be the BAT even if it were true that zero discharge is not available. At the Merrimack Station, EPA correctly found that the BAT for FGD wastewater was zero liquid discharge. But in processing the permit application, EPA developed arsenic, chromium, copper, mercury, selenium and zinc TBELs for Merrimack Station's FGD wastewater based on "statistical analysis of self-monitoring data ... at Duke Energy's Allen and Belews Creek Stations." Attachment C at 32. In its draft permit, DENR states that it based its TBELs on the "95th percentile of the effluent data" discharging over five years from Duke Energy's A11en, Marshall, and Belews Creek facilities. Fact Sheet at 4 (emphasis added). If data from Allen and Belews Creek was sufficient to develop TBELS for Merrimack, it is more than sufficient to develop TBELs here. Nonetheless, the draft permit sets no TBEL limits at all for metals in Outfall 2, aside from mercury, and authorizes discharges at concentrations that are significantly higher than the originally proposed Merrimack TBELs — again, even though these are supposedly based on the same facilities analyzed by EPA for that permit, including Allen and Belews Creek. DENR appears not to have performed the same rigorous TBEL analysis that EPA did, nor does it appear to have looked to more sophisticated permits and treatment technologies like the Merrimack facility. For example, the arsenic limit in these permits is higher than the draft Merrimack permit. Arsenic is a known carcinogen that causes multiple forms of cancer in humans. It is also a toxic pollutant, 40 C.F.R. § 401.15, and a priority pollutant, 40 C.F.R. Part 423 App'x A. Arsenic is also associated with non -cancer health effects of the skin and the nervous system. In the draft Merrimack permit, where EPA analyzed the treatment technology at Allen and Belews Creek and based its limits.on what could be achieved, EPA set the monthly average at 8 ug/L. Attachment C at 39. But the Allen draft permit sets no limit for arsenic from Outfall 2 and sets .h monthly limit for internal Outfall 5 and "Outfalls 10 and 11" of 10.5 ug/L. Similarly, EPA's draft Merrimack permit limit for selenium set the monthly average at 10 ug/L, versus 13.6 ug/L in the Allen permit for internal Outfall 5 and "Outfalls 10 and 11" (and no limit for Outfall 2); and the draft Merrimack permit set a selenium daily maximum of 19 ug/L, versus 25.5 ug/L in the Allen permit for internal Outfall 5 and "Outfalls 10 and 11" (and no limit for Outfall 2). Attachment C at 47. 7 See htty://www.charlotteobserver.com/news/local/article19l53437.html. 14 For Mercury, EPA noted that it could have set the monthly average limit at 22 ng/L in the draft Merrimack permit, versus 47 ng/L for Allen, but then noted that the Merrimack facility actually incorporates an additional "polishing" step that allowed the technology based limit for mercury in the Merrimack permit to be set at just 14 ng/L. Attachment C at 44. If this limit is achievable in New Hampshire, it should be achievable in North Carolina, as well, regardless of the requirements of the TMDL. IV. The Draft Permit Authorizes Uncontrolled and Unidentilliable Leaks from Lagoons In Violation of the Clean Water Act, Defeats the Purpose of the Permit in Violation of the Clean Water Act, and Violates the Public Notice and Comment and Other Requirements of the Clean Water Act The proposed permit (section A.21) purports to authorize any leaking -streams of contaminated coal ash wastewater discharging from the Allen lagoons into Lake Wylie that may emerge anywhere along the facility's property line, now or in the future — without being identified and characterized in the NPDES application or the permit itself. A. The Proposed Permit Violates the CWA's Prohibition on Unpermitted Point Source Discharges Each of these streams of contaminated water is a point source discharge to surface waters of the United States. Thus, the proposed permit purports to authorize unspecified point source discharges, in violation of the CWA, 33 U.S.C. § 1311(a). Under the CWA, "[elvery identifiable point that emits pollution is a point source which must be authorized by a NPDES permit ...." U.S. v. Tom Kat Dev., Inc., 614 F. Supp. 613, 614 (D. Alaska 1985) (citing 40 C.F.R. § 122.1(b) (1). Accord U.S. v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir. 1979); Legal Envtl Assistance Found., Inc. v. Hodel, 586 F. Supp. 1163, 1168 (E.D. Tenn. 1984); U.S, v. Saint Bernard Parish, 589 F. Supp. 617 (E.D. La. 1984)). The "NPDES program requires permits for the discharge of `pollutants' from any `point source' into `waters of the United States."' 40 C.F.R. § 122.1(b)(1) (emphasis added). Rather than complying with this straightforward requirement of the CWA, the proposed Permit instead declares that a fictional "Outfall 010" would encompass any and all "seeps entering the river from the upstream edge of permittee's property to the downstream property boundary ... as if entering at one location." This approach is impermissible under the Clean Water Act. The proposed permit attempts to limit the total amount of seep discharge and maximum allowable pollutant concentrations — but those limits are totally impracticable. The Fact Sheet itself acknowledges that the seeps are "difficult to monitor and control, and it is difficult to 'accurately predict their impact on water quality." Indeed, Duke Energy is unable even to complete a competent application for an NDPES permit for these future wastestreamms because it 15 lacks the most fundamental information required by Form 2C — the Outfall locations and flow characteristics. See Permit Writer's Handbook 4.3.5. And even if these requirements could be put into effect — which is highly unlikely, as DENR acknowledges — they could not remedy this fundamental flaw in the permit's approach to the polluted leaks. . The proposed permit's blanket authorization of the seeps violates the most basic principles of the Clean Water Act. DENR itself acknowledges in the Fact Sheet that "[t]he CWA NPDES permitting program does not normally envision permitting of uncontrolled releases from treatment systems" and "[r]eleases of this nature would typically be addressed through an enforcement action requiring their elimination rather than permitting." Fact Sheet at 2 (emphasis added). DENR's statements are even more striking in light of the fact an enforcement action filed by DENR is currently pending against Duke Energy for those very same seeps at Allen. Finally, DENR's proposal to issue a CWA permit that attempts to authorize an unlined impoundment to continue leaking into surface and groundwater water is plainly inconsistent with performance standards under the new federal CCR rule promulgated by EPA under RCRA (published in the federal register April 20, 2015). Under that rule, existing unlined impoundments that have documented violations of groundwater standards are subject to closure pursuant to a suite of federal requirements. E.g., 40 C.F.R. § 257.101. In contrast, DENR's proposal to try to "legalize" the leaking impoundments is at odds with the federal CCR rule — which will not even allow these types of leaky impoundments to continue to operate as is. Like the CWA requirements for BAT and zero discharge, so too complimentary federal requirements for CCR storage do not allow leaky unlined impoundments that have contaminated groundwater to stay in operation. B. The Proposed Permit's Blanket Authorization of the Seeps Violates the CWA's Public Participation Requirements As well, this arrangement would allow Duke to evade public notice and comment and the opportunity for a public hearing and for judicial review, along with all the other requirements of the state NPDES permitting program, 33 U.S.C. § 1342(b). A new undesigned and undesignated flow of polluted water may spring from this supposed wastewater treatment facility at any time. The permit asserts that these newly identified seeps "will not be considered as new outfalls." Condition A(21). It further promises that new seeps will be "administratively added" to the permit. That new outfall will not have been the subject of the public notice, comment, and hearing requirements, or any other requirements of the Clean Water Act. Instead, this permit purports to authorize those discharges and outfalls in advance, without any of the process and protections required by the Clean Water Act. As drafted, this permit is evades the Clean Water Act entirely for these new and undescribed outfalls and discharges. 16 But it is beyond the authority of DENR to authorize new point source discharges without proceeding through the procedures of a modification of the NPDES permit with public comment and EPA oversight. EPA's regulations authorize limited administrative changes to an active permit through minor modifications, none of which condone the administrative addition of a new NPDES outfall. 40 U.S.C. § 122.63. Ultimately, this promise of a permit shield and administrative amendment of Duke Energy's permit has the effect of bypassing public comment, EPA oversight and judicial review for the life of this permit for a poorly defined and monitored (waste stream). This scheme is inconsistent with the requirements of the Clean Water Act. V. The Draft Permit Fails to Set Protective Water Quality Based Effluent Limits A. Duke Energy Must Comply with Water Quality Standards at all Points in Lake Wylie Because the Draft Permit Fails to Specify a Mixing Zone. In prior communications with Duke Energy regarding pollution discharge and thermal impact to Lake Wylie caused by Duke Energy's effluent, DENR has referenced a "mixing zone" below Duke Energy's discharge, but neither the prior nor the current permit authorizes a mixing zone for this facility. Under North Carolina law a mixing zone must be "defined by the division." 15A NCAC 02B .0204. The mixing zone must be drawn so that it does not result in acute toxicity, offensive conditions, undesirable aquatic life or result in a dominance of nuisance species outside of the assigned mixing zone, or endangerment to the public health or welfare. Id. Federal law likewise requires mixing zones to be defined to a discrete area designed to allow adequate mixing of pollutants and protect over all water quality. See generally 2010 Pertnit Writer's Manual Chapter 6. The draft permit not only fails to define a mixing zone but provides no basis from which to reliably determine whether water quality standards and permit conditions are being met outside the undefined mixing zone. A related deficiency is that the fact sheet fails to explain how the mixing zone is calculated to comply with the minimum requirements of the Clean Water Act and state law. B. Water Quality Based Effluent Limits for Ash Pond Seeps are Inadequate The method by which many of the effluent limitations for the seeps were set appears to be arbitrary and capricious. The draft permit (at A.17) states that "[t]he maximum allowable parameter concentration in Table I is determined by multiplying the highest baseline seep concentration levels by 10." The Fact Sheet states that the reasonable potential analysis (RPA) analyzed the highest concentration for each parameter chosen from the 12 identified seeps, and it also states that there was no reasonable potential to violate water quality standards or EPA criteria. But there is no information in the permit about what "baseline seep concentration levels" were used in this flawed approach. Thus, there is no way for the public to evaluate how 17 these limits were established because they are presented in a vacuum. The Fact Sheet's explanation of the reasonable potential analysis (p. 4) states only that the "highest concentration for each constituent was chosen from one of the 12 seeps", and analyzed for potential water quality violations. Furthermore, the effluent limits and RPA for the draft limit are inadequate because they assume that the waste stream is being diluted by the full flow of the Catawba River. To the contrary, the Catawba frequently remains nearly stagnant as its flow is regulated by Duke Energy. In those instances, discharged effluent accumulates in the water surrounding the Allen plant rather than is carried downstream. The fact sheet acknowledges that the bodies of water between the ash ponds and Lake Wylie are jurisdictional waters protected by state law and the federal Clean Water Act. For example, the fact sheet suggests that action to remediate the unchecked and illegal seep discharges from the Allen impoundments would delay ultimate closure of the impoundments because work to collect,and reroute the discharges would require construction which "would require 401 permits, which will create a substantial delay with ash pond decommissioning ..:." Of course, 401 certification would be required from the state of North Carolina, only if, as is the case here, such construction activities would be impacting jurisdictional waters. While the state seems genuinely concerned about assuring that those jurisdictional waters receive full Clean Water Act protections from any construction activities needed to arrest illegal discharges, it has failed entirely to apply Clean Water Act procedures required to protect those receiving waters from the impacts of illegal pollution. In this respect, DENR's approach to these seeps reflects the application submitted by Duke Energy which argues in its "Allen Steam Station Surface Water and Seep Monitoring August and September 2014" in the permit file, that the seeps analyzed indicate "that there is little potential for Allen Steam Station to influence water quality in Lake Wylie" but ignore the impact on water quality within receiving water bodies between the impoundment and Lake Wylie. Indeed the map submitted by Duke Energy with its Surface Water Sampling Report (Figure 2) to identify surface water sampling locations in Lake Wylie indicates a blue -line jurisdictional stream buried beneath the ash pond and emerging from its toe. DENR must conduct a full jurisdictional analysis of waters flowing into Lake Wylie from Duke Energy's property to determine if any are jurisdictional waters that must meet water quality standards and conduct an RPA of the impact illegal seeps from the toe of Duke Energy's coal ash impoundments may have on those waters. , C. Duke Energy's 316(a) Demonstration is Inadequate to Justify a Variance from North Carolina's Water Quality Standard for Temperature. 18 Every NPDES permit must impose "any more stringent limitation" necessary to meet "water quality standards," including state standards for temperature. 33 U.S.C. § 131 l(b)(1)(C). Section 316(a) of the Clean Water Act provides narrow authority for a variance from water quality standards for temperature, but only when such effluent limits are "more stringent than necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife." 33 U.S.C. § 1326(a). EPA regulations define a balanced, indigenous population as "a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species and by a lack of domination by pollution tolerant species." 40 C.F.R. § 125.71(c). An industrial discharger seeking a § 316(a) temperature variance bears the burden of demonstrating both (1) that effluent limits otherwise required by the Clean Water Act are "more stringent than necessary" to protect the balanced, indigenous population and (2) that the thermal discharge allowed by such a variance will protect the balanced, indigenous population in the future. See 33 U.S.C. § 1326; 40 C.F.R. § 125.73(a) (the -applicant must demonstrate that water quality standards are more stringent than necessary); In Re Dominion Energy Brayton Point, 12 E.A.D. 490, 552 (2006) (EPA Environmental Appeals Board held that § 1326(a) and EPA regulations "clearly impose the burden of proving that the... thermal effluent limitations are too stringent on the discharger seeking the variance'). Absent a meritorious demonstration, the applicant must comply with water quality. standards. Duke Energy's demonstration is deficient for failure to analyze the cumulative shift in aquatic populations in Lake Wylie over time. The demonstration as drafted speaks only to the change in the most recent sample period but fails to demonstrate by reference to an unimpacted water body that the cumulative effect of its thermal discharge shave not caused a shift in the population of the lake. The impacts of past discharges on the aquatic community cannot be ignored in a § 316(a) demonstration. In particular, shifts in species composition and other adverse impacts attributable to past discharges cannot be disregarded. The balanced, indigenous population of fish, shellfish and wildlife contemplated by the Act is the population that exists absent the impacts of the applicant's thermal discharge. See 40 C.F.R. § 125.71(c) (balanced indigenous community excludes "species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance" with water quality standards); 40 C.F.R. § 125.73(a) (demonstration must consider "the cumulative impact of its thermal discharge together with all other significant impacts on the species affected"); In re Dominion Energy Brayton Point, 12 E.A.D. at 557 ("[T]he population under consideration is not necessarily just the population currently inhabiting the water body but a population that may have been present but for the appreciable harm.") EPA's Environmental Appeals Board ("EAB") has ruled on the exact question of whether a shift to a thermally tolerant species composition is acceptable and found that such a 19 shift contravened the very purposes of the Clean Water Act. In Public Service Company of Indiana, 1 E.A.D. 590, 28 (1979) the EAB found that: [Section] 316(a) speaks only of "a balanced, indigenous population..",_ [A]ccording to [applicant], the indefinite article "a" cannot be "tortured" into the definite phrase "the balance which would exist in the absence of heat." However, these arguments ... would render the general goal of the Act -- to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" -- a dead letter. Section 316(a) must ... be read in a manner which is consistent with the Act's general purposes. Consequently, § 316(a) cannot be read to mean that a balanced indigenous population is maintained where the species composition, for example, shifts ... from thermally sensitive to thermally tolerant species. Such shifts are at war with the notion of "restoring" and "maintaining" the biological integrity of the Nation's waters. More recently, the EAB again emphasized that a § 316(a) demonstration may not "ignore the fact that the abundance of certain species ... has been altered over the past several decades" because such an interpretation would be "inconsistent with the regulations, the legislative history of section 316(a), the purpose of the CWA, and prior case law." In Re Dominion Energy Brayton Point, 12 E.A.D. at 558. In June of 201-0; the EPA highlighted a track records of deficiency related to Duke's 316(a) demonstrations for the Allen plant including a failure to identify impacted wildlife, identify the full scope of the thermal plume, break down fish surveys between heat sensitive and intolerant species, analyze present data to clearly demonstrate that affected communities have not shifted to primarily heat tolerant assemblages, and demonstrate that community assemblages in the heat affected portions of the receiving water are not significantly different from affected communities with regard to the number of nonindigenous species. Duke Energy's BIP demonstrations continue to fail to meet most of these requirements. In particular, Duke Energy analyzed its cumulative impacts by reference to a reach of the Catawba River between the Allen plant and the Catawba Nuclear Station, a heavily impacted body of water. Furthermore, the BIP demonstration submitted by Duke Energy for Allen demonstrates an increase in the pollution tolerant species in affected reaches of the Catawba in the past four years over prior assessments. D. The EMC Cannot Issue a 316(a) Thermal Variance In any event, only the EMC can issue a variance from the temperature standard and the EMC as currently constituted cannot do so. To administer the Clean Water Act pursuant to delegated federal authority, the state "board or body which approves all or portions of permits 20 shall not include as a member any person who receives, or has during'the previous 2 years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit." 40 C.F.R. § 123.25(c). In North Carolina, that "body or board" is the Environmental Management Commission. N.C. Gen. Stat. § 143-215.1. Because the Environmental Management Commission as a whole cannot comply with the prohibition on receiving a significant portion of income from permit holders or applicants, permitting authority rests in a NPDES Committee, which must include at least five non -conflicted members of the EMC. 15A NCAC .0107(a). The current EMC does not have five non -conflicted members and is thus unable to issue the permit. - The EMC appears well aware of this problem. A March 2015 spreadsheet of EMC committees has not only transformed the "NPDES Committee" required under state law (15A N.C. Admin. Code 2A .0107) into the "NPDES Permit Appeals Committee" (signifying a change from approving permits to only dealing with them on appeal) but does not list a single member save one ex officio member appointed to all committees. A review of past committee agendas reveals that there has only been one meeting of the purported NPDES committee since March 2012. There are currently 14 individuals serving on the North Carolina EMC. Three Commissioners (Tedder, Martin, Elam) operate consulting firms and four are lawyers or engineers (Carter, Craven, Puette, Dawson) with practices that deal with environmental regulatory issues such as NPDES permitting. Four commissioners appear to work for or have retired from companies that either hold NPDES permits or rely on companies that do (Carrol, Anderson, Ferrell, Wilsey). Three Commissioners remain who may not receive a "significant portion of income directly or indirectly from permit holders or applicants for a permit" though that too is unclear. Even if those Commissioners were not conflicted out of participating on the EMC's NPDES Committee, the committee still lacks two required members. A permit cannot issue in this instance because the delegated permitting authority, the EMC NPDES Committee, cannot meet its regulatory requirements for non -conflicted members. VI. The Proposed Permit Violates the Clean Water Act's Anti -Backsliding Provisions. The draft permit would allow Duke Energy to operate a leaking wastewater treatment system. By definition, these leaks do not discharge through the permitted outfall structures, which include risers designed to ensure that settled pollutants remain in the lagoons and water is discharged from the top of the lagoon to the outfall discharge pipes. DENR itself describes its approach to the seeps as allowing "uncontrolled releases." Fact Sheet at 3. Thus, the proposed permit would allow Duke Energy to avoid even the minimal treatment technology in place for its currently permitted outfalls. This change in policy stands in sharp conflict with the provisions of the existing permit and, perplexingly, the draft permit itself. Both the draft permit and the existing permit include an 21 important standard condition, known as the Removed Substances provisionat Part II.C.6, which provides: , "Solids, sludges ... or other pollutants removed in the course of treatment or control of wastewaters shall be utilized/disposed of... in a manner such as to prevent arty pollutant from such materials from entering waters of the State or navigable waters of the United States." (emphasis added) This common-sense provision prohibits pollutants removed by waste treatment facilities from escaping out into surface and groundwater. As such, the provision is an essential implementation of state policy and good practice requiring pollutants removed from wastewater through the operation of a wastewater treatment plant not to be summarily discharged into waters, in frustration of the core purpose of the state and federal pollution control programs. DENR itself has cited Duke Energy for violating this provision by allowing liquid discharges of removed substances to enter navigable waters due to uncontrolled releases from Duke Energy's coal ash lagoons at its Dan River facility. In a February 28, 2014 Notice of Violation, DENR cites the discharge "of coal combustion residuals from the ash pond to the Dan River, class C waters of the State" as violating the Removed Substances provision: `Tailure to utilize or dispose solids removed from the treatment process in such a manner as to prevent pollutants from entering waters of the State (Part II, Section C. 6. of NPDES permit)." In the context of the Allen permit, the removed substances provision is also the implementation of a required permit component under the implementing regulations of the Clean Water Act. Those regulations require that "[t]echnology-based effluent limitations shall be established under this subpart for solids, sludges, filter backwash, and other pollutants removed in the course of treatment or control of wastewaters in the same manner as for other pollutants" 40 C.F.R. § 125.3(g). Under the prior permit, DENR did not set individual TBELs for contaminants in seeps from the ash basin but rather took the only responsible step of treating zero liquid discharge, as implemented through the removed substances provision, as the BAT for contaminated seeps from a coal ash impoundment. That is, consistent with the requirement to set TBELs for pollutants removed by the wastewater treatment ash ponds, the prior permit prohibited My discharge of removed substances to waters of the United States. The Removed Substances provision is an important component of the Clean Water Act's protections, and prevents waters of the United States from being polluted by waste treatment facilities such as the Allen coal ash settling lagoons. In the Matter of 539 Alaska Placer Miners, Nos. 1085-06-14-402C & 1087-08-03-402C, 1990 WL 324284 at *8 (EPA 1990) (inclusion of Removed Substance provision "is based on the simple proposition that there is no way one can prbtect the water quality of the waters of the U.S if the [polluter] is allowed to redeposit the pollutants collected in his settling ponds") (Doc. 26-9). 22 Parts of the draft permit purporting to authorize leaks would abandon this sensible, longstanding and recently enforced prohibition on discharge of removed substances and the recognition that zero liquid discharge is the acceptable TBEL for the seep wastestream, which is itself the product of a failing wastewater treatment system. That change in course violates the Clean Water Act. The Clean Water Act's NPDES permitting program is structured around progressive improvements in pollution control technology. The requirement of Best Available Technology ("BAT") is predicated on the concept that as treatment technology improves, it will be incorporated into National Pollutant Discharge Elimination System permits in order to make progress towards Congress's "national goal" of eliminating discharges of pollutants to waters of the United States. 33 U.S.C. §§ 1251(a)(1). For this reason, the CWA includes anti -backsliding requirements to ensure that the limits and conditions imposed in new or modified NPDES permits for a facility are at least as stringent as those in previous permits. 33 U.S.C. § 1342(o); 40 C.F.R. § 122.440)(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 ...: �. The CWA's anti -backsliding requirements apply to all NPDES permit provisions including effluent limits, best management practices and other conditions. 40 C.F.R. § 122.44(1)(1); In the Matter of Star-Kist Caribe, Inc., Petitioner, 2 E.A.D. 758 at *3 (E.P.A. Mar. 8, 1989) (emphasis added). EPA, NPDES Permit Writers' Manual Chapter 7, § 7.2.2, p. 7-4 (Sept. 2010), available at http://water.epa.gov/polwaste/npdes/basics/upload/pwm chapt 07.pdf. The proposed permit would, for the first time, abandon zero liquid discharge as the TBEL for discharges of removed substances from Allen and instead issue a permit to `uncontrolled releases" of seeps contaminated with coal ash constituents removed by the settling basin. For this reason, the proposed permit violates the CWA's anti -backsliding requirements. Among other things, the proposed permit would for the first time: (1) allow uncontrolled and undesigned releases from the coal ash lagoons, (2) permit a set of undesigned and uncontrolled releases as a single "outfall"; (3) allow uncontrolled and undesigned releases from a permitted wastewater treatment facility; (4) allow a permitted wastewater treatment facility to leak polluted water from the facility into State waters and navigable waters; (5) allow the facility to release discharges that are prohibited by conditions in its current permit; and (6) create a new meaning and permitted category of "outfall" to allow uncontrolled, undesigned, and future but -as -of -yet -determined leaks and flows ofpolluted water. The reversal under the current permit from the prior TBEL for removed substances violates the anti -backsliding provisions of the Clean Water Act and its implementing regulations. DENR cannot now retreat from the progress made towards improving water quality in Lake 23 Wylie under prior permits by relaxing the TBEL standards for removed substances that it is required to implement in every permit For that reason, the anti -backsliding provision of the Clean Water Act prohibits DENR from issuing a permit to Duke Energy for seeps of removed substances for which any liquid discharge is prohibited under Duke Energy's current permit VII. The Draft Permit Sets Inadequate Monitoring Requirements for Seeps. The permit must require more frequent monitoring of seeps. The draft permit requires monthly monitoring of the seeps only for the first year; thereafter, monitoring is required only twice a year. This is inadequate. First, the flow and levels of contaminants in the seeps are likely to change from week to week, so two snapshots per year would make it impossible to accurately assess the amount of pollutants discharging into Lake Wylie. While DENR has candidly admitted it would be difficult to accurately monitor the seeps even under the best of circumstances, two samples per year virtually guarantees the permit's effluent limits and flow requirements will not be enforced. Second, this arrangement makes it easy for the polluter to cherry -pick two sampling points per year with low flows to avoid violations. Third, it makes identifying new seeps far less likely. Finally, this schedule falls short of the requirements of the Clean Water Act. Environmental Protection Agency C'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. § 122.4S(d). Nothing in the fact sheet demonstrates or suggests that monthly, or- even daily, monitoring of seep discharges is impractical. For all these reasons, monitoring every two weeks should be required until the lagoons are dewatered and removal begins. VIII. Conclusion The draft permit is inconsistent with the requirements of North Carolina and federal law for these reasons described above. For these reasons, we ask that the permit be withdrawn, rewritten, and reissued for the public to comment on an NPDES permit that protects water quality and the public interest. Sincerely, Austin D7 Gerken Amelia Y. Burnette 24 Patrick Hunter Southern Environmental Law Center 22 South Pack Square, Suite 700 Asheville, NC 28801 828-258-2023 djgerken@selcnc.org abumette@selcnc.org phunter@selcnc.org Counsel for Catawba Riverkeeper Foundation, Sam Perkins, Catawba Riverkeeper® 421 Minuet Lane Suite #205 Charlotte, NC 28217 sam@catawbariverkeeper.org Waterkeeper Alliance Peter Harrison 19 West Hargett Street, Suite 602b Raleigh NC 27601 pharrison@waterkeeper.org Sierra Club Bridget Lee 50 F Street, NW, 8th Floor Washington, DC 20001 bridget.lee@sierraclub.org cc: Crim McCarthy, EPA Administrator Heather McTeer Toney, Regional Administrator, Region 4 25 Attachment A W.S. Lee Steam Station Settlement Agreement (April 23, 2015) i 4 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is entered this day of 2015, between Upstate Forever and Save Our Saluda (collectively, the "Conservation Groups"), on the one hand, and Duke Energy Carolinas, LLC ("Duke Energy"), on the other, on behalf of themselves and their respective successors, predecessors, assigns, affiliates, parent companies, subsidiaries, shareholders, officers, directors, agents, and employees. Whereas the parties hereto earlier entered into an agreement dated September 23, 2014 (attached hereto), under which Duke Energy agreed to remove coal ash from the Inactive Ash Basin and Ash Fill area located at the site of the coal-fired power plant known as the W.S. Lee Steam Station on the Saluda River in Anderson County, South Carolina. (hereinafter "W.S. Lee"), and the Conservation Groups agreed not to take any legal action until after November 10, 2014, pending the outcome of Duke Energy's evaluation of the Primary Ash Basin, Secondary Ash Basin, and Structural Fill areas; Whereas the parties hereto have now resolved the matters set out in this Agreement: Now, therefore, the parties to this Agreement agree as follows: 1. Federal Regulation. The parties acknowledge that the United States Environmental Protection Agency promulgated the Hazardous and Solid Waste Management system: Disposal of Coal Combustion Residuals from Electric Utilities ("CCR rule"), which was published on , 2015, 80 Fed Reg. , and that the CCR rule sets minimum controlling requirements for management and disposal of coal combustion residuals and the closure of ash impoundments, and that the CCR rule requires Duke Energy to 1 publish for public availability information regarding implementation of the CCR rule, including periodic progress reports and monitoring information. 2. Undertakings by Duke Energy. In consideration of the promises contained herein, the adequacy of which is hereby acknowledged, Duke Energy agrees to implement the following actions at and with respect to W.S. Lee: (a) Within one (1) year of receiving all required regulatory permits, license, and approvals ("approvals"), and the close of any challenges to those approvals, commence excavating all the coal ash, and further soil removal if required by the South Carolina Department of Health and Environmental Control ("DHEC") to prevent impacts to groundwater quality (such ash and soil being hereinafter referred to jointly as the "Removed Ash and Soil") from the Inactive Ash Basin and/or Ash Fill, as indicated on the attached Exhibit A, and diligently complete excavation of both within five (5) years; (b) Within five (5) years of receiving all required regulatory permits, license, and approvals, including the Closure Plan submitted to DHEC and approvals associated with the Closure Plan, including storage or disposal permit requirements, ("approvals"), and the close of any challenges to those approvals, commence excavating all the coal ash, and further soil removal if required by DHEC to prevent impacts to groundwater quality (such ash and soil being hereinafter referred to jointly as the "Removed Ash and Soil") from the Primary Ash Basin, Secondary Ash Basin, and/or Structural Fill at W.S. Lee, as indicated on the attached Exhibit A, and diligently complete excavation of all within ten (10) years of commencement; 2 (c) Dewater all impoundments in compliance the W.S. Lee NPDES permit, as modified (the "Lee NPDES permit"); (d) Dispose of Removed Ash and Soil in lined storage meeting the requirements in Paragraph 3 below, and approved and properly permitted pursuant to applicable law and regulation, unless beneficially recycled in a manner that does not result in application to the surface or subsurface of the land except in a lined facility meeting all the requirements set forth in subparagraphs (a) and (b) of Paragraph 3 of this Agreement. (e) Thereafter, stabilize and close, or reuse for disposal, all the areas from which Removed Ash and Soil were taken (collectively the "Lee Impoundments") in accordance with applicable law, regulation, and the approved Closure Plan. (f) Timely apply for all permits and approvals necessary to facilitate the removal of coal ash and soil from the Lee Impoundments; (g) Close the Lee Impoundments, which may include reuse of the impoundment as a lined landfill, in compliance with the CCR rule and as part of the CCR rule's required Closure Plan, identify all permits required from DHEC and apply for those in a timely manner, as required by the CCR Closure Plan; (h) Sample and analyze groundwater as required by the CCR rule and by the existing NPDES permit and any additional requirements imposed by DHEC; (i) If in two consecutive sample periods, the concentration of any monitored groundwater constituent increases from the prior period's measurement in any sampling well, then Duke Energy shall report the event to DHEC and confer with DHEC on what remedial action is needed, if any, provided that no reporting or remedial action shall be required for any concentrations below the applicable groundwater standard. 3. Duke Energy and the Conservation Groups agree to the following. (a) All of the Removed Ash and Soil from the Lee Impoundments shall be deposited into a properly permitted facility meeting, at a minimum, all siting, construction and engineering requirements of 40 C.F.R. Part 258 (Subtitle D of RCRA) and, if disposal occurs in South Carolina, South Carolina's sanitary landfill regulation for Class III landfills (Regulation 61-107.19, Part V), except that a lined landfill on the Lee site that meets all other requirements of this Paragraph may have a waste boundary located 500 feet or more from the Saluda River. Duke Energy will not seek approval of a design pursuant to 40 C.F.R. § 258.40(a)(1), S.C. Code Regs. 61-107.19, or under the laws of another state unless it has obtained prior written approval of the Conservation Groups for that design. (b) Removed Ash under this Consent Order will be stored in a lined CCR landfill space meeting all requirements established by applicable statute, law, and regulation. CCR landfill is defined in the CCR rule. Any material that is commingled with Ash shall be disposed of in accord with applicable federal or state regulations. Nothing in this Paragraph shall prohibit the Company from disposing, depositing, or processing Removed Ash through beneficial reuse including lined structural fill applications, lined mine reclamations, abrasives, filter materials, concrete, cement or such other technologies as provided for under state and federal law (including the CCR rule, as applicable). In no event shall 4 J 4 any Removed Ash and Soil be placed in a solid waste landfill that does not meet the requirements set forth in subparagraphs (a) and (b) of this Paragraph. If the Removed Ash and Soil is removed to and stored in a lined structural fill site, or used for another beneficial purpose, the Removed Ash and Soil will not be permanently deposited on the surface or subsurface of the land except in a lined ti facility meeting all the requirements set forth in subparagraphs (a) and (b) of this Paragraph, provided that Removed Ash and Soil may be relocated and stored temporarily on the surface of the land if part of permanent lined disposal on site in compliance with the approved Closure Plan. Duke Energy shall not place coal ash in or on any perennial stream at the Lee site. 4. Undertakings of the Conservation Groups. In consideration of the promises contained herein, the adequacy of which is hereby acknowledged, the Conservation Groups agree: (a) The Conservation Groups will not object to, contest, or sue with regard to the Closure Plan for the Lee Impoundments or with regard to any approval needed to comply with this Agreement provided that the closure plan and any approval is consistent with the terms of this Agreement. (b) The Conservation Groups, on behalf of themselves and their successors, predecessors, assigns, affiliates, parent companies, subsidiaries, officers, directors, agents, and employees, hereby completely release and forever discharge Duke Energy from all civil claims that could have been alleged by the Conservation Groups related to unpermitted discharges from the Lee Impoundments, contamination of groundwater from the Lee Impoundments, 5 NPDES permit violations related to the Lee Impoundments, and for management of coal ash at W.S. Lee in compliance with this Agreement; provided, however, that nothing in this paragraph shall limit the Conservation Groups' right to enforce compliance with the terms and conditions of this Agreement. (c) The Conservation Groups, on behalf of themselves and their successors, predecessors, assigns, affiliates, parent companies, subsidiaries, officers, directors, agents, and employees, hereby covenant not to bring a citizen suit for coal ash pollution from the Lee Impoundments under the CCR rule or the South Carolina Pollution Control Act, so long as Duke Energy is substantially in compliance with all terms and conditions of this Agreement. (d) The Conservation Groups shall not object to or otherwise contest or sue in connection with any of the following: (i) The Closure Plan for the Lee Impoundments, provided that plan is consistent with the terms of this Agreement; (ii) Any and all permits and approvals necessary to effectuate this Agreement, facilitate the removal of coal ash and soil from the Lee Impoundments, and close the Lee Impoundments consistent with and as provided in this Agreement, including but not limited to any permit to construct or operate an onsite landfill for the disposal of coal ash and soil. 5. Force Majeure. Duke Energy agrees to perform all requirements under this Agreement within the time limits established under this Agreement, unless the performance is delayed by a force majeure. on (a) For purposes of this Agreement, a force majeure is defined as any event arising from causes beyond the control of the company, or any entity controlled by the company or its contractors, which delays or prevents performance of any obligation under this Agreement despite best efforts to fulfill the obligation and includes but is not limited to war, civil unrest, act of God, or act of a governmental or regulatory body delaying performance or making it impossible, including, without limitation, any appeal or decision remanding, overturning, modifying, or otherwise acting (or failing to act) on a permit or similar permission or action that prevents or delays an action needed for the performance of any of the work contemplated under this Agreement such that it prevents or substantially interferes with its performance within the time frames specified herein. (b) The requirement that Duke Energy exercise "best efforts to fulfill the obligation" includes using commercially reasonable efforts to anticipate any potential force majeure event and to address the effects of any potential force majeure event: (i) as it is occurring, and (ii) following the potential force majeure event, such that the delay is minimized to the greatest extent possible. (c) Force majeure does not include financial inability to complete the work, increased cost of performance, or changes in business or economic circumstances. (d) Failure of a permitting authority to issue a necessary approval in a timely fashion may constitute a force majeure where the failure of the permitting authority to act prevents Duke Energy from meeting the requirements in this agreement, and is beyond the control of Duke Energy, and Duke Energy has taken all steps available to it to obtain the necessary permit, including but not limited to 7 submitting a complete permit application, responding to requests for additional information by the permitting authority in a timely fashion, and accepting lawful permit terms and conditions after expeditiously exhausting any legal rights to appeal terms and conditions imposed by the permitting authority. 6. Warrant o� f Capacity to Enter into Agreement. The parties represent that they have the legal capacity to enter into this Agreement, and that this Agreement is not for the benefit of any party other than those who .have entered into this Agreement, and gives no rights or remedies to any third parties. 7. Entire Agreement. This Agreement contains the entire understanding and agreement between the parties to this Agreement with respect to the matters referred to herein. No other representations, covenants, undertakings, or other prior or contemporaneous agreements, oral or written, respecting such matters, which are not specifically incorporated herein, shall be deemed in any way to exist or to bind any of the parties to this Agreement. The parties to this Agreement acknowledge that all terms of this Agreement are contractual and not merely a recital. 8. Modification by Writing Only. The parties agree that this Agreement may be modified only by a writing signed by all parties to this Agreement and that any oral agreements are not binding until reduced to writing and signed by the parties to this Agreement. 9. Binding upon Successors and Assigns. The parties to this Agreement agree that this Agreement is binding upon the parties' respective successors and assigns. 10. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original Agreement, and all of which shall constitute one agreement to be effective as of the Effective Date. Photocopies or facsimile copies of executed copies of this Agreement may be treated as originals. A duly authorized attorney may sign on behalf of a corporate entity. 11. Notice and Communication Between the Parties. (a) Notices required or authorized to be given pursuant to this Agreement shall be sent to the _P ersons at the addresses set out below in subparagraph (c). Notices are effective upon receipt. Duke Energy will contemporaneously provide counsel for the Conservation Groups with copies of all: (i) reports submitted to DHEC that are required by this Agreement, as well as any reports submitted to DHEC regarding any spills or releases of coal ash into the Saluda River and any breaks or breaches of the Lee Impoundments); (ii) groundwater monitoring data and NPDES discharge monitoring reports) submitted to DHEC; and (iii) permit applications, including the Closure Plan, submitted to DHEC that are related to the undertakings specified in this agreement; provided however, that any portion of any such report or data that is deemed proprietary information by a Duke Energy contractor, shall be redacted to the extent that it is submitted to DHEC as proprietary information; only those portions deemed proprietary information will be redacted. Commencing six months after the execution of this Settlement Agreement, and continuing each six months thereafter until one year after excavation of the Removed Ash and Soil has been completed, Duke Energy will provide counsel for the Conservation Groups with a written report summarizing its actions under this Agreement, including (1) the amount of ash and soil removed during the six-month period; (2) the results of all monitoring, sampling and analysis of ash, soil and groundwater at W.S. Lee; (3) the progress of dewatering of Lee Impoundments; (4) all E activities performed pursuant to this Agreement during the six-month period; and (5) the destination and/or intended use of the Removed Ash and Soil. (b) Alternatively, in lieu of providing the reports and information above directly to counsel for the Conservation Groups, Duke Energy may choose to make any of the reports and information in subparagraph (a), available on a website that is accessible to the public. If Duke Energy chooses to comply with subparagraph (a) by this alternative means of making any such report or information available via a publicly accessible website, Duke Energy shall first notify counsel for the Conservation Groups regarding which reports or information will be provided by this alternative means. If at any time Duke Energy chooses to no longer make such report or information available on a publicly accessible website, it shall then provide counsel for the Conservation Groups such report or information pursuant to the means described in subparagraph (a). (c) Reports and other materials required by this Agreement to be sent by Duke Energy may be sent by Duke Energy to counsel for the Conservation Groups by e-mail. All other notices may be delivered in person or sent by U.S. Mail or an overnight delivery service. Any party may change the persons and/or addresses for notice by providing notice to the representative(s) of the other party set out below. For the Conservation Groups: Frank S. Holleman III, Esq. Southern Environmental Law Center 601 W. Rosemary Street, Suite 220 Chapel Hill, North Carolina 27516 fholleman@selcnc.org For Duke Energy Carolinas, LLC: Garry S. Rice, Deputy General Counsel Duke Energy Corporation 10 550 South Tryon Street Mail Code DEC45A Charlotte, NC 28202 gaffy.ri.ce@duke-energy.com 12. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of south Carolina. 13. Effective Date. This Agreement shall become effective immediately following execution by all of the parties listed below. Executed this I S day of AvA j i zas by; Executed this day of by: UPSTA FOREVERj� By: � V V Its: L�. 2 Gc.c� V C2 1 12 n Executed this day of or`i by: SAVE OUR SALUD By. Its• ergs; .j 13 'Y�� '.�, > ,�' s ' •;meq , ice .. a� Secondary Ash Pond► rimary Ash Pond or All Arbii , tructurd iI'l Inactive Ash"Basin tz `� �„r _ J Ash Fill Area (� DUKE ENERGY. September 23, 2014 Mr. Frank Holleman Southern Environmental Law Center 601 West Rosemary Street, Suite 220 Chapel Hill, NC 27516-2356 Dear Mr. Holleman: CONFIDENTIAL David B. Fountain Senior Vice President Enterprise Legal Support Duke Energy 411 Fayetteville Street, NC20 Raleigh, NO 27601 919-546-6164 This letter and agreement is to follow up on the conversations between Upstate Forever, Save Our Saluda, and Duke Energy concerning the Primary and Secondary Ash Basins (Active Basins), Inactive Ash Basin (referred to at times as the "51/59 Pond") and the Ash Fill Area (referred to at times as the "former borrow area") at the WS Lee Steam Station. As you are aware, Duke Energy has been conducting an analysis of the Active Basins as well as the Inactive Ash Basin and Ash Fill Area. That analysis has been based on generally accepted scientific and engineering principles as applied to the specific factors that affect the WS Lee Steam Station. The Company has not yet completed that analysis; however, the Company has completed enough of the analysis to reach the following conclusions: • Sound engineering and scientific principles as applied to the WS Lee Steam Station have led the Company to conclude that a "lined" solution Is appropriate for the Inactive Ash Basin and Ash FII Area (shown on the attached map). Specifically, for the Inactive Ash Basin and Ash Fill Area located directly south of the Inactive Ash Basin, the ash will be placed in a storage area that will include a synthetic liner, leachate control and monitoring, and a cover. Whether the storage will occur off-site or on-site remains to be determined. • The Company has not yet reached a conclusion as to the best scientific and engineering solution to the management of the ash in the Active Basins. While the Company's evaluation of the Active Basins is ongoing, the Company has concluded that if the Active Basins are to remain in operation for a significant time, then structural conditions will need to be addressed, including repairs to the secondary Impoundment dam. Duke Energy is already developing remedial design plans for the upstream slope of the Secondary Ash Basin Dam and will proceed with any other repairs needed to ensure continued safe operating conditions until closure. The Company expects to have its analysis completed by early November and will provide an update to you at that time (or earlier should the analysis be completed at an earlier time). �� a �� .clul.r•enerr� sum Mr. Frank Holleman September 23, 2014 Page 2 CONFIDENTIAL • The ultimate closure decision on the Active Basin Dams will be part of a comprehensive review of the site and will be designed for long-term groundwater protection. I believe this letter sets forth accurately, in a summary fashion, the commitments that the Company has previously made during the course of our conversations. I know you appreciate that, because the analysis is still ongoing, the Company has not yet been able to reach final decisions other than as to those issues noted above. However, I can assure you that just as sound engineering and scientific principles dictated the conclusions noted above, they will continue to dictate our final conclusions as well. Therefore, we propose that Duke Energy Carolinas, LLC, Upstate Forever, and Save Our Saluda agree as follows: 1. Duke Energy Carolinas, LLC agrees that the coal ash in the Inactive Ash Basin and Ash FII Area located south of the inactive Ash Basin will be removed and placed in a storage area that will include a synthetic liner, leachate control and monitoring, and cover that comply with all applicable laws and regulations. Whether the storage will occur off site or on site remains to be determined. 2. By November 10, 2014, Duke Energy Carolinas, LLC will inform Upstate Forever and Save Our Saluda of its plans for the remaining coal ash storage sites at the W.S. Lee Steam Station, including the Active Basins and the ash fill area to the south of the Active Basins, its plans for the Active Basins' dams, and the approximate timetable for removal and storage of coal ash. 3. Upstate Forever and Save Our Saluda agree not to take any legal action (including sending Notices of Intent to Sue under federal statutes) until after November 10, 2014. 4. All parties reserve their rights as to what other actions should be taken with respect to the coal ash at the W.S. Lee Steam Station. If the above terms are agreeable to your clients, please so indicate by signing below. This letter represents Duke Energy Carolinas, LLC agreement to such terms. Sincerely, David B. Fountain Senior Vice President, Enterprise Legal Support On behalf of Duke Energy Attachment Mr. Frank Holleman September 23, 2014 Page 3 Senior Attorney, Southern Environmental Law Center On Behalf of Upstate Forever and Save Our Saluda CONFIDENTIAL .� .. ' ,.,r x 7r .t67Ai or ♦ 0 4ia pry i !�, +li •'� f y� R 1 i - !i }'SqM ;�,.+r sr v',. •fir-a +y* Xa," I :'�y,.w". ;. `' lSi~.�t i x`sar •-+� i, yfy. .may. .t ' ,x,.+�-+}-� •3,�Y > r i 1�'" J � WA l.r It It '�,{t'. 0� ; j 1 ..I ', a \tj• - 1- ot Ash i 4 ;`±,. i3�.�.`f4�_�° sfh._� �":' :�. •'7• �yj-�..„+'} �t'_s- ..� .:a.y y`�i - -�Y � �j_1� AI. ft 4 �.`, - f _ + -. ;:.. ' r •. � �tT ��.a P �` .r,"s :.."j ...i�_`.e ','r r..1 , « ss _ y s;:_ t+-. •{�l *+' 'l �r: -., °�•7n Attachment B DHEC-Duke-W.S. Lee Steam Station Consent Agreement (September 2014) THE STATE OF SOUTH CAROLINA BEFORE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL IN RE: DUKE ENERGY CAROLINAS, LLC W.S. LEE STEAM STATION ANDERSON COUNTY CONSENT AGREEMENT 14 -13- HW This Consent Agreement is entered into between the South Carolina Department of Health and Environmental Control (SCDHEC or the Department) and Duke Energy Carolinas, LLC (Duke Energy) with respect to the investigation and remediation of two ash placement areas at the William States (W.S.) Lee Steam Station located at 205 Lee Steam Road, Belton, South Carolina in Anderson County (Tax Map Number 260-00-01-003-000). The Site shall include the "Inactive Ash Basin" and the "Ash Fill Area," and all areas where ash, other coal combustion residuals, or their constituents, including contaminants, (collectively Coal Combustion Residuals or CCR or ash) may have potentially migrated from these ash placement areas, collectively referred to as the "Site." Duke Energy is entering into this Consent Agreement to assess and address any release or threat of release of Coal Combustion Residuals or other pollutants from the Site to the environment and to provide for the final disposition of the Site. Duke Energy will take all necessary steps in compliance with all environmental laws to prevent future releases from the Site. In the interest of resolving the matters herein without delay, Duke Energy agrees to the entry of this Consent Agreement without litigation and without the admission or adjudication of any issue of fact or law, except for purposes of enforcing this agreement. Duke Energy agrees that this Consent Agreement shall be deemed an admission of fact and law only as necessary for enforcement of this Consent 1 Agreement by the Department or in subsequent actions relating to this Site by the Department. FINDINGS OF FACT Based on information known by the Department, the following findings of fact are asserted by the Department for purposes of this Consent Agreement: 1. Duke Energy owns and operates W.S. Lee Steam Station as a cycling station to supplement supply when electricity demand is high. Three (3) coal-fired units, which became operational in the 1950's, generate approximately 370 megawatts (MW) of electricity. Units 1 and 2 were introduced to service beginning in 1951 followed by Unit 3 in 1959. Two (2) combustion turbines (CTs) were added in 2007 and generate an additional approximate 84 MWs. The CTs use diesel fuel or natural gas as their fuel source and serve as emergency back-up power to Oconee Nuclear Station. 2. Prior to 1974, CCR was placed in the Inactive Ash Basin, which is an unregulated basin located south of the power plant. Constructed in 1951 and expanded in 1959, the Inactive Ash Basin was formed by an approximately 3,700 feet long rim dike that impounds approximately 19 acres. The dike has, a maximum height of 60 feet above grade with a crest elevation of 690 feet above sea level. 3. CCR is believed to have been used in the past as backfill into a borrow area identified as the Ash Fill Area, which is located near the Inactive Ash Basin. 4. On May 1, 2014, Duke Energy initiated geotechnical characterization of the Inactive Ash Basin. 5. On May 30, 2014, Duke Energy submitted a plan for the geotechnical characterization on the Ash Fill Area. 2 A 6 CONCLUSIONS OF LAW The Department has the authority to implement and enforce laws and related regulations pursuant to the South Carolina Hazardous Waste Management Act, S.C. Code Ann. §44-56-10, et. seq. (Rev. 2002 and Supp. 2013), the Pollution Control Act, S.C. Code Ann. §48-1-10 et seq. (Rev. 2008 and Supp. 2013) and the South Carolina Solid Waste Policy and Management Act, S.C. Code Ann. §44-96-10, et. seq. (Rev. 2002 and Supp. 2013). These Acts authorize the Department to issue orders; assess civil penalties; conduct studies, investigations, and research to abate, control and prevent pollution; and to protect the health of persons or the environment. NOW, THEREFORE IT IS AGREED, with the consent of Duke Energy and the Department, and pursuant to the South Carolina Hazardous Waste Management Act, the Pollution Control Act, and/or the Solid Waste Policy and Management Act, that Duke Energy shall: 1. Within ninety (90) days of receipt of this fully executed Consent Agreement, submit to the Department for review and approval, an Ash Removal Plan for the Site. The Ash Removal Plan shall include a time schedule for implementation of all major activities required by the Plan. The Ash Removal Plan must include, but is not limited to, characterization of the ash, provisions for the safe removal of the ash, management of storm water during the project, and management alternatives for the ash by either beneficial reuse or disposition in a South Carolina permitted Class 3 solid waste disposal facility or a facility meeting equivalent standards outside of South Carolina. The Ash Removal Plan shall also include an evaluation of the stability of the rim dike and any other slopes impounding the CCR placement areas during ash removal activities. Any comments generated through the Department's review of the Ash Removal Plan, must be addressed in writing by Duke Energy within fifteen (15) . days of Duke Energy's receipt of said comments. Upon the Department's approval of the Ash Removal Plan and the time schedule for implementation thereof, the Ash Removal Plan 3 and schedule shall be incorporated herein and become an enforceable part of this Consent Agreement. 2. Submit, along with but under separate cover from the Ash Removal Plan, a Health and Safety Plan (HASP) consistent with Occupational Safety and Health Administration regulations. The HASP shall be submitted to the Department in the form of one (1) electronic copy (.pdf format). Duke Energy agrees the HASP is submitted to the Department for informational purposes only. The Department expressly denies any liability that may result from Duke Energy's implementation of the HASP. 3. Begin implementation of the Ash Removal Plan described in paragraph 1 within fifteen (15) days of Duke Energy's receipt of the Department's written approval of the Ash Removal Plan. 4. Upon completion of the work approved in the Ash Removal Plan, submit an Ash Removal Report to the Department. The Ash Removal Report shall summarize the activities taken during implementation of the Ash Removal Plan and shall contain appropriate documentation that ash has been removed from the Site in accordance with the Ash Removal Plan. 5. Within thirty (30) days of approval of the Ash Removal Report, submit an Assessment Plan to the Department. The Assessment Plan shall include, but is not limited to, the following: a description of work needed for the delineation of the vertical and horizontal extent of any contamination, including an assessment of surface water, groundwater, and soil underlying the Site; an evaluation of risks to human health and the environment; and a schedule for implementation. 6. Upon completion of the activities outlined in the approved Assessment Plan, submit to the Department an Assessment Report summarizing the findings of the investigations performed pursuant to the Assessment Plan. The Department shall review the Assessment Report to 4 determine completion of the field investigation and sufficiency of the documentation. If the Department determines that additional field investigation is necessary, Duke Energy shall conduct additional field investigation to complete such task. Alternatively, if the Department determines the field investigation to be complete, but the conclusions in Duke Energy's Assessment Report are not approved, Duke Energy shall submit a Revision to the Assessment Report within thirty (30) days after receipt of the Department's disapproval. The Revision shall address the Department's comments. 7. Within sixty (60) days of approval of the Assessment Report, submit to the Department a Closure Plan which details the actions to be taken for the final disposition of the Site, and evaluates the need for additional remediation of soils, surface water and groundwater. If remedial actions are necessary, Duke Energy shall also submit to the Department for approval a Remedial Plan, which includes a proposed remedy, justification for the proposed remedy, the design of the proposed remedy and a schedule for implementation. The schedule of implementation must extend through full completion of the remedy. The Closure Plan and, if necessary, the Remedial Plan shall be based upon the results of the field investigation, ash removal activities and the following seven (7) criteria: a. Overall protection of human health and the environment; b. Compliance with applicable or relevant and appropriate standards; C. Long-term effectiveness and permanence; d. Reduction of toxicity, mobility or volume; e. Short-term effectiveness; f. Implementability; g. Costs. 8. Any comments generated through the Department's review of the Closure Plan and any required Remedial Plan must be addressed in writing by Duke Energy within fifteen (15) days of Duke Energy's receipt of said comments. This fifteen (15) day deadline may be 5 extended by mutual agreement of the parties if the comment resolution. requires extensive revision, such as re-engineering. Upon Department approval of the Closure Plan, Remedial Plan and the implementation schedule, the Closure Plan, Remedial Plan, and implementation schedule shall be incorporated herein and become an enforceable part of this Consent Agreement. 9. Begin to implement the Closure Plan and the Remedial Plan within forty-five (45) days of the Department's approval of the Plans; and thereafter, take all necessary and reasonable steps to ensure timely completion of the Plans. 10. Upon Duke Energy's successful completion of the terms of this Consent Agreement, submit to the Department a written Final Report. The Final Report shall contain all necessary documentation supporting Duke Energy's remediation of the Site and successful and complete compliance with this Consent Agreement. Once the Department has approved the Final Report, the Department will provide Duke Energy a written approval of completion that provides a Covenant Not to Sue to Duke Energy for the response actions specifically covered in this Consent Agreement, approved by the Department and completed in accordance with the approved work plans and reports. 11. Notwithstanding any other provision of this Consent Agreement, including the Covenant Not to Sue, the Department reserves the right to require Duke Energy to perform any additional work at the Site or to reimburse the Department for additional work if Duke Energy declines to undertake such work, if: (i) conditions at the Site, previously unknown to the Department, are discovered after completion of the work approved by the Department pursuant to this Consent Agreement and warrant further assessment or remediation to address a release or threat of a release in order to protect human health or the environment, or (ii) information is received, in whole or in part, after completion of the work approved by the Department pursuant to this Consent Agreement, and these previously unknown conditions or this 6 information indicates that the completed work is not protective of human health and the environment. In exigent circumstances, the Department reserves the right to perform the additional work and Duke Energy will reimburse the Department for the work. 12. In consideration for the Department's Covenant Not to Sue, Duke Energy agrees not to assert any claims or causes of action against the Department arising out of response activities undertaken at the Site, or to seek any other costs, damages or attorney's fees from the Department arising out of response activities undertaken at the Site except for those claims or causes of action resulting from the intentional or grossly negligent acts or omissions of the Department. However, Duke Energy reserves all available defenses, not inconsistent with this Consent Agreement, to any claims or causes of action asserted against Duke Energy arising out of response activities undertaken at the Site by the Department. 13. Submit to the Department a written monthly progress report within thirty (30) days of the execution of this Consent Agreement and once every month thereafter until completion of the work required under this Consent Agreement. The progress reports shall include the following: (a) a description of the actions which Duke Energy has taken toward achieving compliance with this Consent Agreement during the previous month; (b) results of sampling and tests, in summary format received by Duke Energy during the reporting period; (c) description of all actions which are scheduled for the next month to achieve compliance with this Consent Agreement, and other information relating to the progress of the work as deemed necessary or requested by the Department; and (d) information regarding the percentage of work completed and any delays encountered or anticipated that may affect the approved schedule for implementation of the terms of this Consent Agreement, and a description of efforts made to mitigate delays or avoid anticipated delays. 14. Prepare all Plans and perform all activities under this Consent Agreement following appropriate DHEC and EPA guidelines. All Plans and associated reports shall be prepared 7 in accordance with industry standards and endorsed by a Professional Engineer (P.E.) and/or Professional Geologist (P.G.) duly -licensed in South Carolina. Unless otherwise requested, one (1) paper copy and one (1) electronic copy (.pdf format) of each document prepared under this Consent Agreement shall be submitted to the Department's Project Manager. Unless otherwise directed in writing, all correspondence, work plans and reports should be submitted to the Department's Project Manager at the following address: Tim Hornosky South Carolina Department of Health and Environmental Control Bureau of Land and Waste Management 2600 Bull Street Columbia, South Carolina 29201 homostr@dhec.sc.gov 15. Reimburse the Department on a quarterly basis, for all past, present and future costs, direct and indirect, incurred by the Department pursuant to this Consent Agreement and as provided by law. Oversight Costs include, but are not limited to, the direct and indirect costs of negotiating the terms of this Consent Agreement, reviewing plans and reports, supervising corresponding work and activities, and costs associated with public participation. The Department shall provide documentation of its Oversight Costs in sufficient detail so as to show the personnel involved, amount of time spent on the project for each person, expenses, and other specific costs. Payments are due to the Department within thirty (30) days of the date of the Department's invoice; however, it is not a violation of this Consent Agreement if late payment is cured within thirty (30) additional days. 16. Notify the Department in writing at least five (5) days before the scheduled deadline if any event occurs which causes or may cause a delay in meeting any of the above - scheduled dates for completion of any specified activity pursuant to this Consent Agreement. Duke Energy shall describe in detail the anticipated length of the delay, the precise cause or 8 causes of delay, if ascertainable, the measures taken or to be taken to prevent or minimize the delay, and the timetable by which Duke Energy proposes that those measures will be implemented. The Department shall provide written notice to Duke Energy as soon as practicable that a specific extension of time, has been granted or that no extension has been granted. An extension shall be granted for any scheduled activity delayed by an event of force majeure which shall mean any event arising from causes beyond the control of Duke Energy that causes a delay in or prevents the performance of any of the conditions under this Consent Agreement including, but not limited to: a) acts of God, fire, war, insurrection, civil disturbance, explosion; b) adverse weather conditions that could not be reasonably anticipated causing unusual delay in transportation and/or field work activities; c) restraint by court order or order of public authority; d) inability to obtain, after exercise of reasonable diligence and timely submittal of all required applications, any necessary authorizations, approvals, permits, or licenses due to action or inaction of any governmental agency or authority; and e) delays caused by compliance with applicable statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise of reasonable diligence by Duke Energy. Events which are not force majeure include by example, but are not limited to, unanticipated or increased costs of performance, changed economic circumstances, normal precipitation events, or failure by Duke Energy to exercise due diligence in obtaining governmental permits or performing any other requirement of this Consent Agreement or any procedure necessary to provide performance pursuant to the provisions of this Consent Agreement. Any extension shall be granted at the sole discretion of the Department, incorporated by reference as an enforceable part of this Consent Agreement, and, thereafter, be referred to as an attachment to the Consent Agreement. 17. Employees of the Department, their respective consultants and contractors will not be denied access during normal business hours or at any time work under this Consent Agreement is Z being performed or during any environmental emergency or imminent threat situation, as determined by the Department or as allowed by applicable law. IT IS AGREED THAT this Consent Agreement shall be binding upon and inure to the benefit of Duke Energy and its officers, directors, agents, receivers, trustees, heirs, executors, administrators, successors, and assigns and to the benefit of the Department and any successor agency of the State of South Carolina that may have responsibility for and jurisdiction over the subject matter of this Consent Agreement. Duke Energy may not assign its rights or obligations under this Consent Agreement without the prior written consent of the Department. IT IS FURTHER AGREED that failure to meet any deadline or to perform the requirements of this Consent Agreement without an approved extension of time and failure to timely cure as noted below, may be deemed a violation of the Pollution Control Act, the South Carolina Hazardous Waste Management Act and/or the Solid Waste Management and Policy Act, as amended. Upon ascertaining any such violation, the Department shall notify Duke Energy in writing of any such deemed violation and that appropriate action may be initiated by the Department in the appropriate forum to obtain compliance with the provisions of this Consent Agreement and the aforesaid Acts. Duke Energy shall have thirty (30) days to cure any deemed violations of this Consent Agreement. Applicable penalties may begin to accrue after issuance of the Department's determination that the alleged violation has not been cured during that thirty (30) day period. (Signature Page Follows) 10 FOR THE SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL Elizabeth -A'. Dieck Director of Environmental Affairs lam)rl Daphne G. Awl, Chief Bureau of Land and Waste Management �� //-. Z— Van Keisler, P.G., Director Division of Compliance and Enforcement Reviewed By: Attorney Office of General Counsel WE CONSENT: DUKE ENERGY CAROLINA, LLC Date:�1' 1 `� Date:?/9Ii4-, Date: 7'; � 1r-,/� Date: Date: qI-Siature) John Elnitsky, Senior Vice President, Ash Basin Strategy (Please clearly print name and title) Attachment C EPA Merrimack TBEL Determination (September 23, 2011) Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire EPA - Region 1 9/23/2011 Table of Contents 1.0 BACKGROUND...............................................................................................................1 1.1 MERRIMACK STATION'S FGD SYSTEM................................................................................ 1 1.2 WASTEWATER FROM FGD SYSTEMS.................................................................................... 2 1.3 NPDES PERMITTING OF FGD WASTEWATER DISCHARGES ................................................ 3 1.4 NPDES PERMITTING PROCESS FOR FGD WASTEWATER DISCHARGES AT MERRIMACK STATION.............................................................................................................................. 4, 2.0 LEGAL REQUIREMENTS AND CONTEXT..............................................................5 2.1 SETTING EFFLUENT DISCHARGE LIMITS............................................................................. 5 2.2 TECHNOLOGY-BASED DISCHARGE LIMITS.......................................................................... 6 2.3 SETTING TECHNOLOGY-BASED LIMITS ON A BPJ BASIS ..................................................... 7 2.4 THE BAT STANDARD........................................................................................................... 8 2.5 THE BCT STANDARD......................................................................................................... 13 3.0 TECHNOLOGICAL ALTERNATIVES EVALUATED............................................14 3.1 DISCHARGE TO A POTW.................................................................................................... 14 3.2 EVAPORATION PONDS........................................................................................................ 15 3.3 FLUE GAS INJECTION........................................................................................................ 15 3.4 FIXATION...........................................................................................................................16 39 3.5 DEEP WELL INJECTION..................................................................................................... 16 3.6 FGD WWTS EFFLUENT REUSE/RECYCLE........................................................................ 18 3.7 SETTLING PONDS.............................................................................................................. 18 3.8 TREATMENT BY THE EXISTING WWTS.............................................................................. 19 3.9 VAPOR -COMPRESSION EVAPORATION............................................................................... 20 3.10 PHYSICAUCHEMICAL TREATMENT.................................................................................... 22 3.11 PHYSICAUCHEMICAL WITH ADDED BIOLOGICAL TREATMENT .......................................... 23 4.0 BAT FOR FGD WASTEWATER AT MERRIMACK STATION ............................. 27 5.0 BPJ-BASED BAT EFFLUENT LIMITS....................................................................30 5.1 INTRODUCTION.................................................................................................................. 30 5.2 COMPLIANCE LOCATION.................................................................................................... 34 5.3 POLLUTANTS OF CONCERN IN FGD WASTEWATER........................................................... 35 5.4 THE BAT FOR CONTROLLING MERRIMACK STATION'S FGD WASTEWATER ..................... 37 5.5 EFFLUENT LIMITS...........................................................................:................................. 39 5.5.1 Arsenic.................................................................................................................... 39 5.5.2 BOD........................................................................................................................ 39 5.5.3 Boron.......................................................................................................................40 5.5.4 Cadmium................................................................................................................41 5.5.5 Chlorides.................................................................................................................41 5.5.6 Chromium...............................................................................................................42 5.5.7 Copper.....................................................................................................................42 5.5.8 Iron.......................................................................................................................... 42 5.5.9 Lead........................................................................................................................ 43 5.5.10 Manganese......................:.......................................................................................44 5.5.11 Mercury...................................................................................................................44 5.5.12 Nitrogen..................................................................................................................44 5.5.13 pH..........................................................................................................................46 5.5.14 Phosphorus.............................................................................................................46 5.5.15 Selenium................................................................................................................ 47 5.5.16 Total Dissolved Solids........................................................................................... 47 5.5.17 Zinc......................................................................................................................... 47 5.6 SUMMARY OF EFFLUENT LIMITS....................................................................................... 48 5.7 SUFFICIENTLY SENSITIVE ANALYTICAL METHODS........................................................... 49 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire The analysis presented in this document was developed by the Environmental Protection Agency (EPA) — Region 1 in support of the reissuance of a National Pollutant Discharge Elimination Systems (NPDES) _permit for Merrimack Station (Permit No. NH0001465). EPA is the permitting authority in this case, since the NPDES program has not been delegated to the state of New Hampshire. 1.0 Background 1.1 Merrimack Station's FGD System Merrimack Station, owned and operated by Public Service of New Hampshire (referred to hereafter as PSNH or the Permittee), consists of two coal fired, steam electric, generating units. The coal combustion process generates a variety of air pollutants that are emitted from the facility's smoke stacks. Currently, the flue gas from each of these two units passes through air pollution control equipment that includes selective catalytic reduction systems to reduce nitrogen oxides emissions and two electrostatic precipitators to reduce particulate matter emissions. In 2006, the New Hampshire legislature enacted RSA 125-0:11-18, which requires PSNH to install and operate a wet flue gas desulfurization (FGD) system at Merrimack Station to reduce air emissions of mercury and other pollutants.' RSA 125-0:11(1), (11) and (III); RSA 125-0:120; RSA 125-0:13(1) and (II). The state law calls for the facility to, among other things, reduce mercury emissions by at least 80 percent. RSA 125-0:11(1) and (III); 125- 0:13(1) and (II). But see also RSA 125-0:130, (VII) and (VIII); RSA 125- 0:17(11) (variances). PSNH is required to have the FGD system fully operational by July 1, 2013, "contingent upon obtaining all necessary permits and approvals from federal, state, and local regulatory agencies and bodies." RSA 125-0:13(1) (emphasis added). But see also RSA 125-0:17(1) (variances). With regard to such permits and approvals, the statute requires PSNH to "make appropriate initial filings with the [New Hampshire] department [of environmental services] ... within one year of the effective date of this section, and with any other applicable regulatory agency or body in a timely manner." RSA 125-0:13(1). The legislation also expresses the state's desire to realize the air quality benefits of an FGD system at Merrimack Station sooner than the July 2013 date to the extent practicable, and it creates incentives to encourage Merrimack Station to better that date. RSA 125-0:11(IV); RSA 125-0:13(111); RSA 125-0:16. The New Hampshire statute expressly requires PSNH to install a "wet" FGD 1 Title X Public Health Chapter 125-0 Multiple Pollutant Reduction Program, sections 125- 0:11 through 18. See httn://www.gencourt.state.nh.us/rsa/html/x/125-o/125-o-mrg.htm 1 of 52 . Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire system at Merrimack Station. According to the statute, the New Hampshire Department of Environmental Services (NHDES) "determined that the best known commercially available technology [for reducing the facility's air emissions] is a wet Rue gas desulphurization (sic) system, hereafter `scrubber technology,' as it best balances the procurement, installation, operation, and plant efficiency costs with the projected reductions in mercury and other pollutants from the flue gas streams of Merrimack Units 1 and 2." RSA 125-O:11(II). While wet FGD scrubbers are one of the available means of reducing air pollutant emissions from coal -burning power plants like Merrimack Station, the contaminants removed from the flue gas become part of a wastewater stream from the scrubbers. "In wet FGD scrubbers, the flue gas stream comes in contact with a liquid stream containing a sorbent, which is used to effect the mass transfer of pollutants from the flue gas to the liquid stream." EPA, Steam Electric Power Generating Point Source Category: Detailed Study Report, EPA 821- R-09-008, October 2009, p. 3-16 (hereinafter "EPA's 2009 Detailed Study Report"). In other words, the wet FGD system generates a wastewater purge stream containing the pollutants removed from the flue gas, thus, exchanging air pollution for water pollution. PSNH is installing a limestone forced oxidation scrubber system and intends to produce a saleable gypsum byproduct (e.g., wallboard). While this will reduce the quantity of solid waste requiring disposal, the gypsum cake typically must be rinsed to reduce the level of chlorides in the final product. This generates additional wastewater requiring treatment prior to reuse or discharge. 1.2 Wastewater from FGD Systems Coal combustion generates a host of air pollutants which enter the flue gas stream and are emitted to the air unless an air emissions control system is put in place. The wet FGD scrubber system works by contacting the flue gas stream with a liquid slurry stream containing a sorbent (typically lime or limestone). The contact between the streams allows for a mass transfer of contaminants from the flue gas stream to the slurry stream. Coal combustion generates acidic gases, such as sulfate, which become part of the flue gas stream. Not only will the liquid slurry absorb sulfur dioxide and other sulfur compounds from the flue gas, but it will also absorb other contaminants from the flue gas, including particulates, chlorides, volatile metals - including arsenic (a metalloid), mercury, selenium, boron, cadmium, and zinc — total dissolved solids (TDS), nitrogen compounds and organics. Furthermore, the liquid slurry will also readily absorb hydrochloric acid, which is formed as a result of chlorides in the coal. The limestone in the slurry also contributes iron and aluminum (from clay minerals) to the FGD wastewater. The chloride concentration and clay inert fines of 2 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire the FGD slurry must be controlled through a routine wastewater purge to minimize corrosion of the absorber vessel materials. Depending upon the pollutant, the type of solids separation process and the solids dewatering process used, the pollutants may partition to either the solid phase (i.e., FGD solids) or the aqueous phase. Many of the pollutants found in FGD wastewater can cause serious environmental harm and present potential human health risks. These pollutants can occur in quantities (i.e., total mass released) and/or concentrations that cause or contribute to in -stream excursions of EPA -recommended water quality criteria for the protection of aquatic life and/or human health. In addition, some pollutants in the FGD wastewater present a particular ecological threat due to their tendency to persist in the environment and bioaccumulate in organisms. For example, arsenic, mercury and selenium readily bioaccumulate in exposed biota. 1.3 NPDES Permitting of FGD Wastewater Discharges Polluted wastewater from FGD scrubber systems cannot be discharged to waters of the United States, such as the Merrimack River, unless in compliance with the requirements of the federal Clean Water Act, 33 U.S.C. §§ 1251 et seq. (CWA), and applicable state laws. More specifically, any such discharges must comply with the requirements of a NPDES permit. As will be discussed in detail below, discharges of wastewater from a FGD scrubber system to a water of the United States must satisfy federal technology-based treatment requirements as well as any more stringent state water quality -based requirements that may apply. While EPA has promulgated National Effluent Limitation Guidelines (NELGs) which set technology-based limits for the discharge of certain pollutants by facilities in the Steam Electric Power Generating Point Source Category, see 40 C.F.R. Part 423, these NELGs do not yet include best available technology (BAT) limits for wastewater from FGD systems. In the absence of national standards for FGD wastewater, technology-based limits are developed by EPA (or state permitting authorities administering the NPDES permit program) on a Best Professional Judgment (BPJ), case-by-case basis. See generally 40 C.F.R. § 125.3. During October 2009, EPA completed a national study of wastewater discharges from the steam electric power generating industry. See EPA's 2009 Detailed Study Report. Based on this study, among other things, EPA decided to work toward developing NELGs to address a variety of wastewater streams and pollutants discharged by this industry but not yet addressed by the existing NELGs. The wastewater from wet FGD scrubbers was identified as one of the waste streams to be addressed by the new standards. EPA has indicated that it currently expects to complete the rulemaking process and promulgate revised NELGs by early 2014. 3 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire In a letter dated June 7, 2010, EPA's Office of Wastewater Management provided EPA and state permitting authorities information about establishing technology-based NPDES permit limits for discharges from FGD wastewater treatment systems (WWTSs) at steam electric power plants between now and the effective date of the revised NELGs. This letter underscores the CWA's requirement that until NELG's for FGD WWTS discharges become effective, technology-based effluent limits for such discharges will continue to be based on BPJ. 1.4 NPDES Permitting Process for FGD Wastewater Discharges at Merrimack Station In response to the 2006 state legislation requiring use of a wet FGD scrubber system at Merrimack Station, PSNH contracted with Siemens Water Technologies (Siemens) to design and construct a WWTS for the FGD wastewater. The company received additional engineering/design support from URS Corporation. PSNH's plan ultimately called for the treated wastewater to be discharged to the Merrimack River. In 2009, PSNH began work on an antidegradation analysis, under the direction of NHDES, to determine whether the new discharges would satisfy state water quality standards. See Merrimack Station Fact Sheet, section 5.6.3.1 and NHDES draft antidegradation review document. Based on the requirements of Env-Wq 1708, NHDES required PSNH to perform sampling and analysis of a number of pollutants of concern. These analyses led to the development of certain water quality -based effluent limits, as discussed in greater detail in the Fact Sheet. Id. It was not until May 5, 2010, that PSNH submitted to EPA an addendum to its previously filed NPDES permit application for Merrimack Station in order to identify the company's plan for discharging treated FGD effluent to the Merrimack River. New pollutant discharges to waters of the United States, such as PSNH's proposed discharges of FGD wastewater to the Merrimack River, are prohibited unless and until authorized by a new NPDES permit. Therefore, in response to PSNH's new plan, EPA must determine both the technology-based and, coordinating with NHDES, the water quality -based effluent limits that would apply to the new discharge. Unfortunately, the permit application addendum submitted by PSNH did not provide all the information necessary to enable EPA to determine the applicable technology-based and water quality -based requirements for the FGD wastewater. Therefore, EPA began coordinating with NHDES on the water quality standards analysis. Furthermore, EPA informally suggested to PSNH that it might wish to submit its own evaluation of whether its proposed discharge would satisfy 4 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire applicable technology-based requirements. In response, PSNH submitted a document dated October 8, 2010, and entitled, "Public Service of New Hampshire, Merrimack Station, Bow, New Hampshire, Response to Informal EPA Request for Supplemental Information about Planned State -of -the -Art Flue Gas Desulfurization ("FGD") Wastewater Treatment System" (hereinafter "PSNH's October 2010 Report"). In response to this submission, EPA sent PSNH a letter with a number of follow-up questions. The company responded with a letter dated December 3, 2010, with the heading, "Public Service of New Hampshire, Merrimack Station, Bow, New Hampshire, NPDES Permit No. NH0001465 Response to Information Request about Planned State -of -the -Art Flue Gas Desulfurization Wastewater Treatment System" (hereinafter "PSNH's December 2010 Report"). The information submitted (thus far) indicates that PSNH, at the recommendation of Siemens, has selected a physical/chemical treatment system for the FGD purge stream. Generally, a physical/chemical WWTS consists of chemical precipitation, coagulation/flocculation, clarification, filtration and sludge dewatering. The new WWTS at Merrimack Station will be supplemented with proprietary adsorbent media (or "p"olishing step") for further removal of mercury from the effluent. As of September 2011, construction of the FGD system and its WWTS is almost complete. PSNH is currently performing pre -operational testing of the various components of the FGD system. PSNH designed, financed and, for the most part, constructed the Merrimack Station FGD WWTS system without first discussing with EPA whether this WWTS would satisfy technology-based and water quality -based standards. To be sure, PSNH was not required by regulation either to consult with EPA or to gain EPA approval before constructing a WWTS for the FGD scrubber system at Merrimack Station. By the same token, however, EPA is not required to determine that the new WWTS satisfies the applicable CWA requirements because PSNH has already built it. Rather, EPA must set discharge limits based on the applicable requirements of federal and state law and Merrimack Station will have to meet them. EPA's determination of the appropriate effluent limitations for the FGD wastewater is set forth below. 2.0 Legal Requirements and Context 2.1 Setting Effluent Discharge Limits As the United States Supreme Court has explained: [t]he Federal Water Pollution Control Act, commonly known as the Clean Water Act, 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq., is a comprehensive water quality statute designed to "restore and maintain the chemical, physical, and biological integrity of the 5 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas . Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire Nation's waters." § 1251(a). The Act also seeks to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." § 1251(a)(2). PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 704 (1994). The CWA should be construed and interpreted with these overarching statutory purposes in mind. To accomplish these purposes, the CWA prohibits point source discharges of pollutants to waters of the United States unless authorized by a NPDES permit (or a specific provision of the statute). The NPDES permit is the mechanism used to implement NELGs, state water quality standards, and monitoring and reporting requirements on a facility -specific basis. When developing pollutant discharge limits for a NPDES permit, the CWA directs permit writers to impose limits based on (a) specified levels of pollution reduction technology (technology-based limits), and (b) any more stringent requirements needed to satisfy state water quality standards (water quality -based limits). 2.2 Technology -Based Discharge Limits The CWA requires all discharges of pollutants to meet, at a minimum, applicable technology-based requirements. The statute creates several different narrative technology standards, each of which applies to a different type of pollutant or class of facility. EPA develops NELGs based on the application of these technology - standards to entire industrial categories or sub -categories. Although technology-based effluent limitations are based on the pollution reduction capabilities of particular wastewater treatment technologies or operational practices, the CWA does not dictate that the dischargers subject to the limitations must use the particular technologies or practices identified by EPA. Rather, dischargers are permitted to use any lawful means of meeting the limits. In this way, the CWA allows facilities to develop different, and potentially innovative, approaches to satisfying applicable technology-based requirements.2 As befits the "technology -forcing" scheme of the CWA, Congress provided for the statute's technology-based requirements to become increasingly stringent over time. Of relevance here, industrial dischargers were required by March 31, 1989, to comply with effluent limits for toxic and non -conventional pollutants that reflect the best available technology economically achievable (`BAT").3 See 33 U.S.C. §§ 2 Water quality -based requirements are not based on particular technologies or practices. Thus, they also leave room for different approaches to complying with permit limits. 3 In addition, CWA § 301(b)(1)(A) requires industrial dischargers, by July 1, 1977, to have satisfied limits based on the application of the best practicable control technology currently available (BPT). See 33 U.S.C. §1311(b)(1)(A). See also 40 C.F.R. § 125.3(a)(2)(i). Furthermore, CWA § 306, 33 U.S.C. § 1316, requires new sources to meet performance standards based on the best available demonstrated control technology (BADT). 6 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 1311(b)(2)(A) and (F); 40 C.F.R. § 125.3(a)(2)(iii) — (v). Of further relevance, industrial dischargers are also required by the same date to meet limits for conventional pollutants based on the best conventional pollutant control technology ("BCT"). See 33 U.S.C. §1311 (b)(2)(E); 40 C.F.R. § 125.3(a)(2)(ii). The BAT and BCT standards are discussed in more detail below. 2.3 Setting Technology -Based Limits on a BPJ Basis As mentioned above, EPA has developed NELGs for certain pollutants discharged by facilities within the steam -electric power generating point source category — an industrial category that includes Merrimack Station — but has not promulgated BAT or BCT NELGs for FGD scrubber system wastewater. See 40 C.F.R. Part 423. As a result, EPA (or a state permitting authority, as appropriate) must develop technology-based limits for Merrimack Station's FGD wastewater on a case-by-case, BPJ basis pursuant to CWA § 402(a)(1)(B), 33 U.S.C. § 1342(a)(1)(B), and 40 C.F.R. § 125.3(c)(2) and (3). When developing technology-based limits using BPJ under CWA § 402(a)(1), the permit writer considers a number of factors that are spelled out in the statute and regulations. The BAT factors are set forth in CWA § 304(b)(2)(B) and 40 C.F.R. § 125.3(d)(3), while the BCT factors are set forth in CWA § 304(b)(4)(B) and 40 C.F.R. § 125.3(d)(2). The regulations reiterate the statutory factors, see 40 C.F.R. § 125.3(d),, and also specify that permit writers must consider the "appropriate technology for the category of point sources of which the applicant is a member, based on all available information," as well as "any unique factors relating to the applicant." 40 C.F.R. § 125.3(c)(2). As one court has explained, BPJ limits represent case -specific determinations of the appropriate technology-based limits for a particular point source. Natural Resources Defense Council v. U.S. Envtl. Prot. Agency, 859 F.2d 156, 199 (D.C. Cir. 1988). The court expounded as follows: [i]n what EPA characterizes as a "mini -guideline" process, the permit writer, after full consideration of the factors set forth in section 304(b), 33 U.S.C. § 1314(b), (which are the same factors used in establishing effluent guidelines), establishes the permit conditions "necessary to carry out the provisions of [the CWA]." § 1342(a)(1). These conditions include the appropriate ... [technology-based] effluent limitations for the particular point source.... [T]he resultant BPJ limitations are as correct and as statutorily supported as permit limits based upon an effluent limitations guideline. Id. See also Texas Oil & Gas Assn v. U.S. Envtl. Prot. Agency, 161 F.3d 923, 929 (5th Cir. 1998) ("Individual judgments thus take the place of uniform national 7 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire guidelines, but the technology-based standard remains the same"). EPA's "Permit Writers' Manual" instructs permit writers that they can derive BPJ-based limits after considering a variety of sources (e.g., other NPDES permits; effluent guidelines development and planning information). See Permit Writers'Manual at section 5.2.3.3 (September 2010). 2.4 The BAT Standard The BAT standard is set forth in CWA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A), and applies to many of the pollutants in Merrimack Station's FGD wastewater, which include both toxics (e.g., mercury, arsenic, selenium) and non -conventional pollutants (e.g., nitrogen). See 33 U.S.C. § 1311(b)(2)(A) & (F); 40 C.F.R. §§ 125.3(a)(2)(iii) — (v). See also 33 U.S.C. § 1314(b)(2). The BAT standard requires achievement of: effluent limitations ... which ... shall require application of the best available technology economically achievable ..., which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the [EPA] Administrator pursuant to section 1314(b)(2) of this title, which such effluent limitations 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 ... as determined in accordance with regulations issued by the [EPA] Administrator pursuant to section 1314(b)(2) of this title .... 33 U.S.C. § 1311(b)(2)(A) (emphasis added). In other words, EPA must set effluent. discharge limits corresponding to the use of the best pollution control technologies that are technologically and economically achievable and will result in reasonable progress toward eliminating discharges of the pollutant(s) in question. In a given case, this might or might not result in limits prohibiting the discharge of certain pollutants. According to the CWA's legislative history, the starting point for identifying the "best available technology" refers to the "single best performing plant in an industrial field" in terms of its capacity to reduce pollutant discharges. Chemical Manufacturers. Assn v. U.S. Envtl. Prot. Agency, 870 F.2d 177, 239 (5th Cir. 1989) (citing Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972 at 170 (1973) (hereinafter "1972 Legislative History") at 170).4 Thus, EPA need not set BAT limits at levels that are being met 4 See also Texas Oil, 161 F.3d at 928, quoting Chemical Manufacturers., 870 F.2d at 226; Kennecott v. U.S. Envtl. Prot. Agency, 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 8 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire by most or all the dischargers in a particular point source category, as long as at least one demonstrates that the limits are achievable. Id. at 239, 240. This comports with Congressional intent that EPA "use the latest scientific research and technology in setting effluent limits, pushing industries toward the goal of zero discharge as quickly as possible." Kennecott, 780 F.2d 445, 448 (4th Cir. 1984), citing 1972 Legislative History at 798. See also Natural Resources Defense Council, 863 F.2d at 1431 ("The BAT standard must establish effluent limitations that utilize the latest technology."). While EPA must consider the degree of pollutant reduction achieved by the available technological alternatives, the Agency is not required to consider the extent of water quality improvement that will result from such reduction.5 Available technologies may also include viable "transfer technologies" — that is, a technology from another industry that could be transferred to the industry in question — as well as technologies that have been shown to be viable in research even if not yet implemented at a full-scale facility.6 When EPA bases BAT limits on such "model" technologies, it is not required to "consider the temporal availability of the model technology to individual plants," because the BAT factors do not include consideration of an individual plant's lead time for obtaining and installing a technology. See Chemical Manufacturers, 870 F.2d at 243; American Meat Inst. V. U.S. Envtl. Prot. Agency, 526 F.2d 442, 451 (7th Cir. 1975). show what is possible."); American Meat, 526 F.2d at 463 (BAT "should, at a minimum, be established with reference to the best performer in any industrial category"). According to one court: [t]he legislative history of the 1983 regulations indicates that regulations establishing BATEA [i.e., best available technology economically achievable, or BAT] can be based on statistics from a single plant. The House Report states: It will be sufficient for the purposes of setting the level of control under available technology, that there be one operating facility which demonstrates that the level can be achieved or that there is sufficient information and data from a relevant pilot plant or semi -works plant to provide the needed economic and technical justification for such new source. Ass'n of Pacific Fisheries v. U.S. Envtl. Prot. Agency, 615 F.2d 794, 816-17 (9th Cir. 1980) (quoting 1972 Legislative History at 170). a See, e.g., American Petroleum, 858 F.2d at 265-66 ("Because the basic requirement for BAT effluent limitations is only that they be technologically and economically achievable, the impact of a particular discharge upon the receiving water is not an issue to be considered in setting technology- based limitations."). 6 These determinations, arising out of the CWA's legislative history, have repeatedly been upheld by the courts. E.g., American Petroleum Inst. v. U.S. Envtl. Prot. Agency, 858 F.2d 261, 264- 65 (5th Cir. 1988); Pacific Fisheries, 615 F.2d at 816-17; BASF Wyandotte Corp. v. Costle, 614 F.2d 21, 22 (1st Cir. 1980); American Iron, 526 F.2d at 1061; American Meat, 526 F.2d at 462. 9 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire While EPA must articulate the reasons for its determination that the technology it has identified as BAT is technologically achievable, courts have construed the CWA not to require EPA to identify the precise technology or technologies a plant must install to meet BAT limits. See Chemical Manufacturers., 870 F.2d at 241. The Agency must, however, demonstrate at least that the technology used to estimate BAT limits and costs is a "reasonable approximation of the type and cost of technology that must be used to meet the limitations." Id. It may do this by several methods, including by relying on a study that demonstrates the effectiveness of the required technology. BP Exploration & Oil, Inc. v. U.S. Envtl. Prot. Agency, 66 F.3d 784, 794 (6th Cir. 1995) (upholding BAT limits because EPA relied on "empirical data" presented in studies demonstrating that improved gas flotation is effective for removing dissolved as well as dispersed oil from produced water). See also Assn of Pacific Fisheries v. U.S. Envtl. Prot. Agency, 615 F.2d 794, 819 (9th Cir. 1980) (regulations remanded because the BAT limit was based on a study that did not demonstrate the effectiveness of the technology selected as BAT). Beyond looking at the best performing pollution reduction technologies, the statute also specifies the following factors that EPA must "take into account" in determining the BAT: ... the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non -water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate. 33 U.S.C. § 1314(b)(2)(B). See also 40 C.F.R. § 125.3(d)(3). As elucidated by the case law, the statute sets up a loose framework for EPA's taking account of these factors in setting BAT limits. As one court explained: [i]n enacting the CWA, `Congress did not mandate any particular structure or weight for the many consideration factors. Rather, it left EPA with discretion to decide how to account for the consideration factors, and how much weight to give each factor.' BP Exploration, 66 F.3d at 796, citing Weyerhauser v. Costle, 590 F.2d 1011, 1045 (D.C. Cir. 1978) (citing Senator Muskie's remarks about CWA § 304(b)(1) during debate). Comparison between the factors is not required, merely their consideration. Weyerhauser, 590 F.2d at 1045 (explaining that CWA § 304(b)(2) lists factors for EPA "consideration" in setting BAT limits, in contrast to § 304(b)(1)'s requirement that EPA compare "total cost versus effluent reduction 10 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire benefits" in setting BPT limits).? Ultimately, when setting BAT limits, EPA is governed by a standard of reasonableness in its consideration of the required factors. BP Exploration, 66 F.3d at 796, citing American Iron & Steel Inst. v. Envtl. Prot. Agency, 526 F.2d 1027, 1051 (3d Cir. 1975), modified in other part, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914 (1978). Each factor must be considered, but the Agency has "considerable discretion in evaluating the relevant factors and determining the weight to be accorded to each in reaching its ultimate BAT determination." Texas Oil, 161 F.3d at 928, citing Natural Resources Defense Council, 863 F.2d at 1426. See also Weyerhauser, 590 F.2d at 1045 (stating that in assessing BAT factors, "[s]o long as EPA pays some attention to the congressionally specified factors, [CWA § 304(b)(2),] on its face lets EPA relate the various factors as it deems necessary"). One court succinctly summarized the standard for reviewing EPA's consideration of the BAT factors in setting limits as follows: "[s]o long as the required technology reduces the discharge of pollutants, our inquiry will be limited to whether the Agency considered the cost of technology, along with other statutory factors, and whether its conclusion is reasonable." Pacific Fisheries, 615 F.2d at 818. See also Chemical Manufacturers, 870 F.2d at 250 n. 320 (citing 1972 Legislative History (in determining BAT, "'[t]he Administrator will be bound by a test of reasonableness."')). The BAT Factors As detailed above, the CWA requires EPA to consider a number of factors in developing BAT limits. Certain of these factors relate to technological concerns related to the industry and treatment technology in question. For example, EPA takes into account (1) the engineering aspects of the application of various types of control techniques, (2) the process or processes employed by the point source category (or individual discharger) for which the BAT limits are being developed, (3) process changes that might be necessitated by using new technology, and (4) the extent to which the age of equipment and facilities involved might affect the introduction of new technology, its cost and its performance. EPA also considers the cost of implementing a treatment technology when determining BAT. CWA §§ 301(b)(2) and 304(b)(2) require "EPA to set discharge limits reflecting the amount of pollutant that would be discharged by a point source employing the best available technology that the EPA determines to be economically feasible...." Texas Oil, 161 F.3d at 928 (emphasis added). See also 33 U.S.C. §§ 1311(b)(2) and 1314(b)(2) (when determining BAT, EPA must consider the "cost of 7 See also U.S. Envtl. Prot. Agency v. Nat'l Crushed Stone Assn, 449 U.S. 64, 74 (1980) (noting that "[s]imilar directions [as those for setting BPT limits] are given the Administrator for determining effluent reductions attainable from the BAT except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits"). 11 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire achieving such effluent reduction"); 40 C.F.R. § 125.3(d)(3) (same). The United States Supreme Court has stated that treatment technology that satisfies the CWA's BAT standard must "represent `a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges." EPA v. Nat'l Crushed Stone Assn, 449 U.S. 64, 74 (1980). See also BP Exploration, 66 F.3d at 790 ("BAT represents, at a minimum, the best economically achievable performance in the industrial category or subcategory."), citing NRDC v. EPA, 863 F.2d 1420, 1426 (9th Cir. 1988). The Act gives EPA "considerable discretion" in determining what is economically achievable. Natural Resources Defense Council, 863 F.2d at 1426, citing American Iron, 526 F.2d at 1052. It does not require a precise calculation of the costs of complying with BAT limits.$ EPA "need make only a reasonable cost estimate in setting BAT," meaning that it must "develop no more than a rough idea of the costs the industry would incur." Id. See also Rybachek v. U.S. Envtl. Prot. Agency, 904 F.2d 1276, 1290-91 (9th Cir. 1990); Chemical Manufacturers., 870 F.2d at 237-38. Moreover, CWA § 301(b)(2) does not specify any particular method of evaluating the cost of compliance with BAT limits or state how those costs should be considered in relation to the other BAT factors; it only directs EPA to consider whether the costs associated with pollutant discharge reduction are "economically achievable." Chemical Manufacturers., 870 F.2d at 250, citing 33 U.S.C. § 1311(b)(2)(A). Similarly, CWA § 304(b)(2)(B) requires only that EPA "take into account" cost along with the other BAT factors. See Pacific Fisheries, 615 F.2d at 818 (in setting BAT limits, "the EPA must `take into account ... the cost of achieving such effluent reduction,' along with various other factors"), citing CWA § 304(b)(2)(B). In the context of considering cost, EPA may also consider the' relative "cost- effectiveness" of the available technology options. The term "cost-effectiveness" is used in multiple ways. From one perspective, the most cost-effective option is the least expensive way of getting to the same (or nearly the same) performance goal. From another perspective, cost-effectiveness refers to a comparative assessment of the cost per unit of performance by different options. In its discretion, EPA might decide that either or both of these approaches to cost-effectiveness analysis would be useful in determining the BAT in a particular case. Alternatively, EPA might reasonably decide that neither was useful. For example, the former approach would not be helpful in a case in which only one technology even comes close to reaching a particular performance goal. Moreover, the latter approach would not be helpful where a meaningful cost -per -unit -of -performance metric cannot be developed, or B In BP Exploration, the court stated that, "[a]ccording to EPA, the CWA not only gives the agency broad discretion in determining BAT, the Act merely requires the agency to consider whether the cost of the technology is reasonable. EPA is correct that the CWA does not require a precise calculation of BAT costs." 66 F.3d at 803, citing Natural Resources Defense Council, 863 F.2d at 1426. 12 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire where there are wide disparities in the performance of alternative technologies and those with lower costs -per -unit -of -performance fail to reach some threshold of necessary performance. The courts, including the United States Supreme Court, have consistently read the statute and its legislative history to indicate that while Congress intended EPA to consider cost in setting BAT limits, it did not require the Agency to perform some type of cost -benefit balancing.9 Finally, in determining the BAT, EPA also considers the non -water quality environmental effects (and energy effects) of using the technologies in question. See 33 U.S.C. § 1314(b)(2)(B); 40 C.F.R. § 125.3(d)(3). Again, the CWA gives EPA broad discretion in deciding how to evaluate these non -water quality effects and weigh them against the other BAT factors. Rybachek, 904 F.2d at 1297, citing Weyerhauser, 590 F.2d at 1049-53. In addition, the statute authorizes EPA to consider any other factors that it deems appropriate. 33 U.S.C. § 1314(b)(2)(B). 2.5 The BCT Standard Discharges of conventional pollutants by existing sources are subject to effluent limitations based on the "best conventional pollutant control technology" (BCT). 33 U.S.C. §§ 1311(b)(2)(E) and 1314(b)(4)(A); 40 C.F.R. § 125.3(a)(2)(ii). See also 33 U.S.C. § 1314(a)(4) and 40 C.F.R. § 401.16 (conventional pollutants include biochemical oxygen demand (BOD), total suspended solids (TSS) (nonfilterable), pH, fecal coliform and oil and grease). BCT is the next step above BPT for conventional pollutants. As a result, effluent limitations based on BCT may not be less stringent than limitations based on BPT would be. In other words, BPT effluent limitation guidelines set the "floor" for BCT effluent limitations. EPA is discussing the BCT standard here because of the possibility that Merrimack Station's FGD wastewater could include elevated BOD levels and non -neutral pH. These are conventional pollutants subject to the BCT standard. As explained above, any BCT limits for these pollutants would need to be determined based on a BPJ basis because EPA has not promulgated BCT NELGs for FGD wastewater. The factors to be considered in setting BCT limits are specified in the Clean Water Act and EPA regulations. See 33 U.S.C. § 1314(b)(4)(B); 40 C.F.R. § 125.3(d)(2). 9 E.g., Nat'l Crushed Stone, 449 U.S. at 71 ("Similar directions [to those for assessing BPT under CWA § 304(b)(1)(B)] are given the Administrator for determining effluent reductions attainable from the BAT except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits.") (footnote omitted); Texas Oil, 161 F.3d at 936 n.9 (petitioners asked court "to reverse years of precedent and to hold that the clear language of the CWA (specifically, 33 U.S.C. § 1314(b)(2)(B)) requires the EPA to perform a cost -benefit analysis in determining BAT. We find nothing in the language or history of the CWA that compels such a result"); Reynolds Metals, 760 F.2d at 565. Reynolds Metals Co. v. U.S. Environmental Protection Agency, 760 F.2d 549, 565 (4th Cir. 1985) (in setting BAT limits, "no balancing is required — only that costs be considered along with the other factors discussed previously"), citing Nat'l Assn Metal Finishers v. U.S. Environmental Protection Agency, 719 F.2d 624, 662-63 (3rd Cir. 1983). 13 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire EPA has determined, however, that based on current facts, developing BCT limits for Merrimack Station's Draft Permit would be inappropriate at this time. This decision is discussed further in section 3.5. 3.0 Technological Alternatives Evaluated PSNH's October 2010 and December 2010 Reports explain why the various FGD wastewater treatment technologies discussed below, except physical/chemical treatment, were not chosen for Merrimack Station. EPA describes PSNH's reasons for rejecting each of these technologies and comments on the company's explanations. The technologies analyzed include: Discharge to a POTW Evaporation ponds Flue gas injection Fixation Deep well injection FGD WWTS effluent reuse/recycle Settling ponds Treatment by the existing WWTS Vapor -compression evaporation Physical/chemical treatment Physical/chemical with added biological stage 3.1 Discharge to a POTW PSNH evaluated discharging Merrimack Station's FGD wastewater to a local publicly owned treatment works (POTW) as a treatment alterative. Specifically, PSNH evaluated "[d]ischarging the FGD Wastewater to the POTW closest to Merrimack Station - the Hall Street Wastewater Treatment Facility in Concord, New Hampshire — [but the company concluded that it would be] ... technically infeasible because there currently is no physical connection between the Station and the POTW by which to convey the FGD Wastewater ... [and] the-POTW is not designed to manage wastewater with the pollutant characterization of the FGD Wastewater." PSNH's October 2010 Report, p. 8. In EPA's view, it would be unreasonable in this case to require PSNH to install a connection of over five miles to a POTW that might not be capable of treating the FGD system wastewater. Therefore, EPA concurs with PSNH that this option does not represent a long-term BAT option for Merrimack Station. 14 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 3.2 Evaporation Ponds PSNH also evaluated evaporation ponds as a treatment alterative for the FGD wastewater from Merrimack Station but reached the following conclusions: [u]sing evaporation ponds at Merrimack Station to treat the FGD Wastewater is technically infeasible because the New Hampshire climate is not sufficiently warm and dry year-round to enable evaporation ponds at the Station to achieve an evaporation rate that would be equal to or greater than the flow of FGD Wastewater .... If PSNH were to rely solely on evaporation ponds to remove FGD -related pollutants from the FGD Wastewater, it would only be able to operate the FGD WWTS - and thus the FGD System - during the summer months. Id. at 9. EPA concurs with PSNH that use of evaporation ponds, a technology predominantly used in the south and southwest, would be impracticable in New Hampshire's climate. Therefore, EPA does not consider this technology to be a possible BAT at Merrimack Station. 3.3 Flue Gas Injection PSNH also evaluated the use of flue gas injection as a treatment alternative for the FGD wastewater from Merrimack Station, explaining that "[t]his treatment technology option would involve injecting part or all of the FGD [w]astewater into the Station's flue gas upstream of the electrostatic precipitators ("ESPs") and relying on the hot flue gas to evaporate the liquid component of the FGD [w]astewater and the ESPs to capture the remaining metals and chlorides." Id. at 9-10. PSNH rejected this option, however, explaining as follows: PSNH is not aware of any flue gas injection system currently in operation at any power plant in the U.S. to treat FGD wastewater. Further, after evaluating this option for use at Merrimack Station, PSNH has concluded that the lack of such systems is due to the numerous technical, operation and maintenance ("O&M") and potential worker safety issues they could ,pose. First, there is a reasonable risk that the highly corrosive dissolved chlorides remaining after the evaporation of the injected FGD wastewater's liquid component would not be fully captured by the ESPs, with the result that over time, they would concentrate in the FGD system's scrubber and other components, posing a serious risk of equipment corrosion and FGD system failure. This in turn would give rise to burdensome long-term O&M issues and costs that, while potentially manageable in theory, could in fact render operation of the flue gas injection system impracticable. In addition, metals that commingle and become concentrated with fly ash in the boilers and elsewhere could pose a potential health risk to employees. 15 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire Id. at 10. EPA agrees with PSNH that this technology has not been demonstrated to be available for treating FGD wastewater and that remaining technical issues would need to be resolved before EPA could consider determining it to be the BAT at Merrimack Station. 3.4 Fixation PSNH also evaluated the use of "fixation" as a treatment alternative for the FGD wastewater from Merrimack Station. PSNH explained this technology as follows: Fixation would involve the mixing of lime, fly ash and FGD Wastewater with the gypsum solids separated from the purged slurry to form a concrete -like. substrate. Through the pozzolanic reactions that result, dissolved solids, metals and chlorides in the FGD Wastewater would be bound up in the concrete -like substrate, which would be disposed of by landfilling. However, fixation generally is not used to manage the gypsum solids by- product generated by forced -oxidation FGD systems like the Station's FGD System, which are designed and operated to "recycle" these solids into wallboard -quality gypsum. Rather, fixation historically has been used to manage the unusable calcium sulfite by-product generated by inhibited oxidation FGD systems and the calcium sulfite/calcium sulfate by-product generated by natural oxidation FGD systems. Id. Under state law, PSNH is required to install a wet flue gas desulfurization system at Merrimack Station. Further, PSNH concluded that a limestone forced oxidation system is the best technology match for the wet scrubber to be installed at Merrimack Station. PSNH has further commented that fixation "was historically used at plants with natural or inhibited oxidation FGD systems, both of which produce an unusable calcium sulfide byproduct that requires management and disposal." PSNH's December 2010 Report, p. 6. Although the fixation process is viable for the type of FGD system at Merrimack Station (i.e., the FGD gypsum solids could be combined with the FGD wastewater, lime and fly ash to create the pozzolanic solids), the process would render the gypsum solids unmarketable. EPA concurs that fixation does not represent BAT for this facility. 3.5 Deep Well Injection PSNH evaluated and rejected deep well injection as a treatment alterative for the FGD wastewater from Merrimack Station. The company explained its decision as follows- [d]eep well injection is not a viable treatment alternative for the FGD Wastewater for several reasons. First, PSNH does not currently have any 16 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire deep wells at any of its facilities. Second, there would be significant local opposition - from the Town of Bow, residents in the area around Merrimack Station, and interested environmental groups - to its installation of a deep well at Merrimack Station due to potentially adverse drinking water aquifer impacts. Third, we believe it would be difficult to the point of impossible to obtain the necessary state permits, especially in light of the New Hampshire legislature's focus on groundwater quality management and use over the past few years. Id. at 5. While PSNH's reasoning does not persuade EPA that deep well injection would be infeasible, EPA does for other reasons conclude that this technology is not the BAT for controlling FGD wastewater discharges at Merrimack Station at this time. Although PSNH correctly points out that Merrimack Station does not currently have a deep injection well, it appears that it would be technologically feasible to install deep well injection equipment at the site. PSNH's additional reasons for rejecting this technology seem largely based on speculation about political reactions to the technology, rather than its technical merits. The question should not turn on speculation about whether local residents, environmental groups or New Hampshire legislators might tend to be opposed to the technology due to the importance of protecting local drinking water aquifers. EPA shares the state and local priority for protecting groundwater quality, but the question should be whether the technology will be environmentally protective and capable of meeting applicable groundwater quality standards. Furthermore, proper use of deep well injection would not be expected to impact local water supplies as, in general, a correctly designed injection well "extends from the surface to below the base of the deepest potable water aquifer, and is cemented along its full length." Herbert, Earle A., "The Regulation of Deep -Well Injection: A Changing Environment Beneath the Surface," Pace Environmental Law Review, Volume 14, Issue 1, Fall 1996, Article 16, 9-1-1996, p. 174.10 Still, it is unclear whether deep well injection is an available technology for potential use at Merrimack Station. This is because "[u]nderground injection uses porous rock strata, which is commonly found in oil producing states" (Id. at 178), but EPA is unaware of data indicating whether or not suitable hydrogeologic conditions exist at Merrimack Station. For this reason, EPA has decided that it cannot currently find deep well injection to be the BAT at Merrimack Station. At the same time, PSNH has not provided sufficient technical information to rule out the possibility that deep well injection could in the future be determined to be the BAT at Merrimack Station. As a result, EPA may revisit this option going forward 10 Also at htti):Hdigitalcommons.pace.edu/pelr/voll4/issl/16/ or http://digitalcommons.p ace. edu/cgi/viewcontent.cgi?article=1375&contexts elr&seiredir= l#s earch="http://+digitalcommons.pace.edu/pelr/vol14/iss1/16", p.6. 17 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire depending on the available information. 3.6 FGD WWTS Effluent Reuse/Recycle On October 29, 2010, EPA sent PSNH an information request letter under CWA §308(a), in which the Agency specifically requested that PSNH, "[p]lease explain why the wastewater generated from the proposed Merrimack Station FGD WWTS is not being proposed for reuse and or recycle within the Station (e.g., for coal dust suppression or scrubber make-up water)." EPA, "Information Request for NPDES Permit Re -issuance, NPDES Permit No: NH0001465," October 29, 2010, p. 4. The purpose of EPA's request was to garner information to help the Agency decide if recycling some or all of the FGD WWTS effluent might be part of the BAT for Merrimack Station. PSNH responded that it was indeed planning to recycle some of the treated effluent from the FGD WWTS to the FGD system. The FGD wet scrubber system's make-up water needs are projected to be approximately 750 gpm (1.08 MGD), while the volume of the FGD WWTS effluent discharge is projected to be substantially less, at 35-50 gpm (0.07 MGD). PSNH plans to discharge the treated FGD wastewater from the FGD WWTS to the slag settling pond, which also receives various other wastewaters from the facility, and then to withdraw water from the slag settling pond for the FGD wet scrubber system's make-up water. Since the FGD WWTS effluent is to be commingled with the slag settling pond water, PSNH concludes that some of the FGD wastewater should be considered to be recycled back to the FGD scrubber system. However, in light of the piping layout shown in the company's site diagram and the volume of the various flows entering and exiting the pond, EPA believes that a de minimis amount, if any, of the treated FGD effluent is actually likely to be recycled back to the scrubber from the slag settling pond. Therefore, such recycling/reuse of the FGD wastewater will not be considered part of the BAT for Merrimack Station, at this time. Aside from stating that some of the FGD effluent would be recycled for scrubber makeup water, PSNH's submissions to EPA fail to address whether or not some or all of the remaining FGD WWTS effluent could also be reused within some aspect of plant operations (e.g., for coal dust suppression). Therefore, PSNH has not provided sufficient technical information to rule out the possibility that additional recycle/reuse could be achievable at Merrimack Station. As a result, EPA may revisit this option in the future depending on the available information. 3.7 Settling Ponds PSNH evaluated the use of settling ponds as a treatment alterative for the FGD wastewater from Merrimack Station as follows: 18 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire The use of on-site settling ponds dedicated solely to treating the FGD Wastewater is technically infeasible at Merrimack Station because there is not enough usable open space at .the Station to construct a settling pond system of adequate dimensions to achieve proper treatment. To be effective, a settling pond must retain wastewater for a sufficient period of time to allow particulates to fall out of suspension before the wastewater is discharged.... In addition, settling ponds are designed to remove suspended particulates from wastewater by means of simple gravity separation, and do not include the process control features that are intrinsic to modern clarifiers, allowing operator control over treatment factors such as settling rate, removal and recirculation. PSNH's October 2010 Report, p. 8-9. EPA does not necessarily agree that Merrimack Station does not have sufficient area to construct settling ponds. There are areas, such as those on the northern boundary of the Merrimack Station property, or on PSNH owned property across River Road, which might provide sufficient space to build settling ponds. Treatment by physical/chemical treatment followed by biological treatment, however, is more effective than settling ponds. EPA has explained that its - evaluation of the industry indicates that "settling ponds are the most commonly used treatment system for managing FGD wastewater ... [and] can be effective at removing suspended solids and those metals present in the particulate phase from FGD wastewater; however, they are not effective at removing dissolved metals." EPA's 2009 Detailed Study Report, p. xii- xiii. As a result, EPA does not consider settling ponds to be the BAT for FGD wastewater at Merrimack Station. 3.8 Treatment by the Existing WWTS PSNH evaluated the use of Merrimack Station's existing wastewater treatment system (WWTS) as an alternative for treating the FGD wastewater. PSNH's analysis stated as follows: Merrimack Station has an existing on-site WWTS that it uses to treat the wastewater streams from its current operations before discharging them, via the Station's treatment pond ... This WWTS consists primarily of three large, rectangular concrete settling basins with chemical feed systems and basic mixing capability (using compressed air) ... [The existing WWTS] would not provide optimal treatment, especially compared to the significant - reductions in FGD -related pollutant concentrations that the FGD WWTS is projected to achieve. The existing WWTS' limitations as a treatment system for the FGD Wastewater stem directly from the fact that the characteristics of the FGD Wastewater and the Station's other wastewaters, and thus 19 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire their respective treatment requirements, are appreciably different.... [the] purpose of the Station's existing WWTS is to remove suspended solids from large batches of Station wastewater. However, the FGD -related pollutants in the FGD Wastewater will be present primarily as dissolved solids ... [and the FGD WWTS influent] will have higher concentrations of dissolved metals and chlorides than any of the Station's other wastewaters and will be supersaturated with dissolved gypsum, which the Station's other wastewaters are not. For this reason, effective treatment of the FGD Wastewater will require certain conditioning steps ..... to precipitate and flocculate the dissolved metals and gypsum prior to clarification. These conditioning steps are most favorably performed as they will be in the FGD WWTS: in a continuous, not a batch, process using reaction tanks. PSNH's October 2010 Report, p. 7-8. EPA agrees that Merrimack Station's existing WWTS, currently used for metal cleaning and low volume wastes, would require redesign/rebuilding to enable it to treat the FGD wastewater. Therefore, EPA rejects use of the existing WWTS as a potential BAT for treating FGD wastewater at Merrimack Station. 3.9 Vapor -Compression Evaporation EPA has reported that "evaporators in combination with a final drying process can significantly reduce the quantity of wastewater discharged from certain process operations at various types of industrial plants, including power plants, oil refineries, and chemical plants." EPA's 2009 Detailed Study Report, p. 4-33. In some cases, plants have been able to achieve "zero liquid discharge" with this technology. Id. In its submissions to date, PSNH evaluated the use of vapor -compression evaporation at Merrimack Station as follows: [p]ower plants have used vapor -compression evaporator systems - typically consisting of brine concentrators in combination with forced -circulation crystallizers - to treat cooling tower blowdown since the 1970s. Nonetheless, FGD wastewater chemistry and cooling tower blowdown chemistry are very different, with the result that the power industry's design and operational experience with treating cooling tower blowdown using evaporation systems is not directly transferable to the use of evaporation systems to treat FGD wastewater. In fact, there are currently no power plants in the United States that are operating vapor -compression evaporator (i.e., brine concentrator and crystallizer) systems to treat FGD wastewater.... In treating FGD wastewater with a vapor -compression evaporator system, there is a high potential for scaling and corrosion. In fact, using a crystallizer 20 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire to treat FGD wastewater requires pretreatment, upstream of the brine concentrator, to "soften" the wastewater by removing calcium chloride and magnesium chloride salts that could result in a very high scaling potential within the brine concentrator and crystallizer. This softening process consumes large quantities of lime and soda ash and produces large quantities of sludge that must be dewatered, usually by filter press, for landfill disposal. ... Until recently, RCC Ionics was the only supplier that had installed a vapor -compression evaporator system using a brine concentrator and crystallizer for FGD wastewater treatment in the United States; however, none of the five units that it has installed are currently operational. Aquatech had designed and manufactured vapor -compression evaporator system components for the Dallman Power Station in Springfield, Illinois, but this system was never installed. At present, another Aquatech vapor - compression evaporator system is currently in start-up in the United States, at Kansas City Power & Light's Iatan Station in Weston, Missouri; however, to date there has been no published information regarding its start-up or operation. Aquatech has also installed five vapor -compression evaporator systems at ENEL power plants in Italy, but not all of these systems are in operation, and performance data has not been published.... PSNH's October 2010 Report, p. 10-11. EPA agrees with PSNH that the operation of vapor -compression evaporation requires proper control of wastewater chemistry and process operations and may require pretreatment steps tailored to the specific facility operation." EPA has reported that "one U.S. coal-fired plant and six coal-fired power plants in Italy are treating FGD wastewater with vapor -compression evaporator systems." EPA's 2009 Detailed Study Report, p. 4-33. This information suggests that this technology may be available for use at Merrimack Station. In fact, EPA has recently received information that PSNH is currently evaluating the potential use of this technology for Merrimack Station. PSNH has not, however, submitted an amended permit application proposing to use vapor compression evaporation, or providing information concerning the suitability of the technology for use at Merrimack Station. li For example, the design currently operating on FGD wastewater requires pretreatment of the wastewater in a clarifier/softener for TSS and hardness reduction followed by concentration in a brine concentrator and a crystallizer. One equipment vendor has developed an alternative design that would avoid the need for pre -softening. Shaw, William A., Low Temperature Crystallization Process is the Key to ZLD Without Chemical Conditioning, Paper Number IWC -10-39 presented at The International Water Conference®, 71st Annual Meeting, October 24-28, 2010. One such system is currently being installed to treat coal gasification wastewater and such systems have been used for years in other industries, but no systems of this alternative design are currently used to treat FGD wastewater. 21 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire In light of all of the above, EPA has concluded that it cannot based on current information determine this technology to be the BAT for treating FGD wastewater at Merrimack Station. It simply is not clear at the present time whether or not this technology is feasible for application at Merrimack Station. EPA is continuing to review information characterizing operational factors and pollutant removal efficacy for vapor compression evaporation and depending on the results of further evaluation of this technology, EPA could potentially find it to be part of the BAT for Merrimack Station for the final NPDES permit. EPA has also considered the BAT factors in evaluating the possibility of using vapor compression evaporation technology at Merrimack Station. Specifically, EPA has considered engineering and process concerns related to the potential use of vapor compression technology, and whether it might necessitate any changes in Merrimack Station's primary production process or other pollution control processes. While effective vapor compression evaporation will require control of water chemistry and may necessitate pretreatment of the wastewater, EPA finds that use of vapor compression evaporation would not interfere with, or require changes to, the facility's other pollution control processes or its primary process for generating electricity. EPA also concludes that vapor compression evaporation technology can be utilized together with physical/chemical treatment. Moreover, EPA finds that the age of Merrimack Station would neither preclude nor create special problems -with using vapor compression evaporation technology. With regard to the potential non -water environmental effects of using vapor compression evaporation, EPA notes that energy demands of this type of treatment technology may not be insignificant. In addition, vapor compression evaporation treatment would produce a solid waste that would require proper management. Finally, EPA has also considered the cost of the technology and finds that it would add significant cost. Specifically, EPA has estimated that utilizing physical/chemical treatment together with vapor compression evaporation at Merrimack Station would cost approximately $4,162,000 per year (based on capital costs of approximately $27,949,000, and annual operating and maintenance costs of approximately $1,524,000). See 9/13/11 (07:56 AND Email from Ronald Jordan, EPA Headquarters, to Sharon DeMeo, EPA Region 1, "Estimated costs & pollutant reductions for treatment options at Merrimack Station." 3.10 Physical/Chemical Treatment Physical/chemical treatment (i.e., chemical precipitation) is a common treatment method used to remove metal compounds from wastewater. With this treatment technology, "chemicals are added to the wastewater in a series of reaction tanks to convert soluble metals to insoluble metal hydroxide or metal sulfide compounds, which precipitate from solution and are removed along with other suspended solids." See Memorandum from James A. Hanlon 22 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire of EPA's Office of Water to EPA Water Division Directors, dated June 7, 2010 (hereafter "EPA's June 7, 2010 Guidance Memorandum"), AttachmentA, p. 3-4. For example, an alkali, such as hydrated lime, may be added to adjust the pH of the wastewater to the point where the metals precipitate out as metal hydroxides. Coagulants and flocculants are also often added to facilitate the settling and removal of the newly -formed solids. Plants striving to maximize removals of mercury and other metals will also often include sulfide addition (e.g., organosulfide) as part of the process. Adding sulfide chemicals in addition to the alkali can provide even greater reductions of heavy metals due to the very low solubility of metal sulfide compounds, relative to metal hydroxides. Sulfide precipitation has been widely used in Europe and is being installed at multiple locations in the United States. Approximately thirty U.S. power plants include physical/chemical treatment as part of the FGD wastewater treatment system; about half of these plants employ both hydroxide and sulfide precipitation in the process. This technology is capable of achieving low effluent concentrations of various metals and the sulfide addition is particularly important for removing mercury.... EPA's June 7, 2010 Guidance Memorandum, Attachment A, p. 4. In an effort to control its air pollutant emissions as required by New Hampshire state law, Merrimack Station recently completed the installation of a limestone forced -oxidation, wet flue gas desulfurization (FGD) scrubber system, as described in section 1.0 above. Moreover, conscious of the need to treat the wastewater generated from the FGD system prior to discharge to the Merrimack River, PSNH decided to install, and is currently in the process of completing the construction of, a physical/chemical treatment system. The treatment system at Merrimack Station consists of the following operations in sequence: equalization; reaction tank #1 (includes the addition of hydrated lime for pH adjustment, recycled sludge and organosulfide); reaction tank #2 where ferric chloride will be added; polymer addition; clarification; gravity filtration; and a series of proprietary filter cartridges containing adsorbent media targeted specifically for the removal of mercury i.e., "polishing step". 3.11 Physical/Chemical with added Biological Treatment While physical/chemical treatment can be very effective for removing some metals, it is ineffective for removing certain forms of selenium and nitrogen compounds, and certain other metals that can contribute to high concentrations of TDS in FGD wastewater (e.g., calcium, magnesium, sodium). "Seven power plants in the U.S. 23 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire are operating or constructing treatment systems that follow physical/chemical treatment with a biological treatment stage to supplement the metals removals with substantial additional reductions of nitrogen compounds and/or selenium." Id. Like mercury and other contaminants found in FGD wastewater that originate from the process of coal combustion, selenium is a toxic pollutant that can pose serious risk to aquatic ecosystems (see Table 5.1, supra). Nitrogen compounds, in turn, can contribute to a variety of water quality problems (see Table 5. 1, supra). As EPA has explained: ... biological wastewater treatment systems use microorganisms to consume biodegradable soluble organic contaminants and bind much of the less soluble fractions into floc. Pollutants may be reduced aerobically, anaerobically, and/or by using anoxic zones. Based on the information EPA collected during the detailed study, two main types of biological treatment systems are currently used (or planned) to treat FGD wastewater: aerobic systems to remove BOD5 and anoxic/anaerobic systems to remove metals and nutrients. These systems can use fixed film or suspended growth bioreactors, and operate as conventional flow-through or as sequencing batch reactors (SBRs). EPA's 2009 Detailed Study Report, p. 4-30. Of the seven power plants mentioned in EPA's June 7, 2010 Guidance Memorandum, three plants operate physical/chemical treatment along with a fixed -film anoxic/anaerobic bioreactor optimized to remove selenium from the wastewater.12 "Selenate, the selenium form most commonly found in forced oxidation FGD wastewaters and the specie that is more difficult to treat using chemical processes, is found [to] be readily remediated using anaerobic biological reactors as is selenite." EPRI, Treatment Technology Summary for Critical Pollutants of Concern in Power Plant Wastewaters, January 2007, p. 4-2. The bioreactor reduces selenate and selenite to elemental selenium, which is then captured by the biomass and retained in treatment system residuals. The conditions in the bioreactor are also conducive to forming metal sulfide complexes to facilitate the additional removal of mercury, arsenic, and other metals. Consideration of PSNH's Reasons for Rejecting Biological Treatment PSNH provided several reasons why it did not propose biological treatment 12 There are two additional power plants (not included in those mentioned above) that operate fined -film anoxic/anaerobic bioreactors to remove selenium from their wastewater. These two plants precede the bioreactors with settling ponds instead of physical/chemical treatment. The other four plants mentioned in EPA's June 7, 2010 Guidance Memorandum operate sequencing batch reactors (SBR) that are operated to optimize removal of ammonia and other nitrogen compounds; the effectiveness of these SBRs at removing selenium compounds has not been demonstrated. 24 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire technology for selenium removal at Merrimack Station, but EPA does not find these reasons to be persuasive. First, PSNH states that its consultant URS's anti - degradation analysis to determine compliance with New Hampshire water quality standards concluded that the FGD wastewater would contribute "an insignificant loading of selenium to the Merrimack River, in part due to the anticipated performance of the FGD WWTS' physical -chemical treatment...." EPA's determination of technology-based effluent limits under the BAT standard is not, however, governed by a determination of the selenium discharge limits needed to satisfy state water quality standards. -Selenium is a toxic pollutant subject to the BAT technology standard under the CWA. Dischargers must comply with federal technology-based standards at a minimum, as well as any more stringent state water quality requirements that may apply. Second, PSNH states that selenium in FGD wastewater is primarily present in the elemental form, which is easily removed in the treatment process. The company also states that "... analyses during recent FGD scrubber startups have shown that the largest percentage of the selenium present in FGD wastewater is present in the elemental form and as selenite." PSNH's December 2010 Report, p. 7. PSNH provides no references in support of these statements, however. Moreover, as indicated above, EPA's research has found (a) that "FGD wastewater entering a treatment system contains significant concentrations of several pollutants in the dissolved phase, including ... selenium," EPA's 2009 Detailed Study Report, p. 4-31, and (b) that "[m]odern forced -oxidation FGD system wastewater contains selenium, predominately in the selenate form ..., [and that although] selenite can be somewhat removed by iron co -precipitation, selenate is soluble and is not removed in the [physical/chemical] treatment processes mentioned earlier." Power -Gen Worldwide, "FGD Wastewater Treatment Still Has a Ways to Go" (Jan 1, 2008). If selenium will be present in the FGD wastewater in the elemental form and easily removed in Merrimack Station's WWTS, as PSNH suggests, then one would expect much lower levels of selenium in the effluent than projected by PSNH. PSNH reports that the FGD wastewater at Merrimack Station could be treated to achieve a level of 9,000 ug/L. Yet, this level of selenium is within the range of levels seen prior to treatment. See EPA's 2009 Detailed Study Report, p. 4-25, Table 4-6: FGD Scrubber Purge Self -Monitoring Data. Finally, PSNH opines that the four biological treatment systems for selenium that it is aware of "have not been in service for a sufficiently long time to establish them as proven technology." PSNH's December 2010 Report, p. 7. In that report, PSNH suggests that five years of operations are required in order to establish that a treatment technology is proven. EPA does not concur with PSNH's use of its proposed five -year -of -operation criterion to rule out biological treatment for selenium removal as unproven. With that said, anoxic/anaerobic technology has been around longer than five years, albeit for other wastes or in pilot scale for FGD 25 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire wastewater. As previously mentioned, available technologies may also include viable "transfer technologies" — that is, a technology from another industry that could be transferred to the industry in question — as well as technologies that have been shown to be viable in research even if not yet implemented at a full-scale facility. Furthermore, as discussed above, EPA's research indicates that a number of power plants have coupled biological treatment with physical/chemical treatment to enhance selenium removal. For example, a two -unit 1,120 MW coal-fired generating facility in the eastern United States installed physical/chemical treatment coupled with anoxic/anaerobic biological treatment to reduce the concentration of selenium in its effluent. According to one analysis, "[t]he entire system has exceeded expectations and is meeting the discharge requirements." M. Riffe et. al., "Wastewater Treatment for FGD Purge Streams," presented at MEGA Symposium 2008.i3 On a broader level, a 2006 article in Power -Gen Worldwide stated the following: [m]uch of the coal mined and used in the eastern United States is high in selenium. This requires many power producers to include selenium removal as part of their FGD wastewater treatment systems to protect the environment. Recommended water quality criteria for selenium can be below 0.020 parts per million (ppm)..." Power -Gen Worldwide, "Using Biology to Treat Selenium" (Nov. 1, 2006). As quoted above, EPA has also found that "some coal-fired power plants are moving towards using anoxic/anaerobic biological systems to achieve better reductions of certain pollutants (e.g., selenium, mercury, nitrates) than has been possible with other treatment processes used at power plants." EPA's 2009 Detailed Study Report, p. 4- 31. In addition, EPA explained that while "... chemical precipitation is an effective means for removing many metals from the FGD wastewater ... [, b]iological treatment, specifically fixed -film anoxic/anaerobic bioreactors when paired with a chemical precipitation pretreatment stage, is very effective at removing additional pollutants such as selenium and nitrogen compounds (e.g., nitrates, nitrites)." Id. at 4-50. Thus, EPA regards biological treatment — more particularly, biological treatment coupled with physical/chemical treatment — to be an adequately proven technology to be a candidate for being designated as the BAT for treating Merrimack Station's FGD wastewater. 13 The authors of this paper, which included two employees of Siemens Water Technology Corp., report that "[a]bout eight biological systems have been installed or planned for installation since 2004." EPA acknowledges that not all of these systems were installed specifically for selenium removal, since biological treatment can also be used to reduce COD/BOD and ammonia or other nitrogen compounds. Nevertheless, these installations demonstrate the viability of biological technology for treating a variety of pollutants in FGD wastewater, and currently there are five biological systems that are specifically optimized for removing selenium from FGD wastewater. 26 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 4.0 BAT for FGD Wastewater at Merrimack Station EPA is not aware of, and PSNH has not identified, any reason that physical/chemical treatment or biological treatment would be precluded from being the BAT (or part of the BAT) for the FGD wastewater in this case. In evaluating these treatment methods, EPA has considered the BAT factors on a site-specific basis for Merrimack Station. This consideration is discussed below. (i) Age of the equipment and facilities involved In determining the BAT for Merrimack Station, EPA accounted for the age of equipment and the facilities involved. As mentioned previously, PSNH is already in the process of completing construction of a physical/chemical treatment system to treat the wastewater generated from the Station's new FGD scrubber system. Moreover, there is nothing about the age of the equipment and facilities involved that would preclude the addition of biological treatment technology. In other words, Merrimack Station's new physical/chemical treatment system could be retrofitted with additional new biological treatment technology, albeit at some expense. Therefore, the age of the facility by itself poses no bar to compliance. (ii) Process employed and process changes In determining the BAT for Merrimack Station, EPA considered the process employed at the facility. Merrimack Station is a 520 MW, fossil fuel -burning, steam -electric power plant with the primary purpose of generating electrical energy. Adding physical/chemical treatment and biological treatment for the FGD wastewater will not interfere with the Permittee's primary process for generating electricity. In addition, biological treatment would not interfere with the physical/chemical treatment process; it would complement it. Biological treatment typically consists of a bioreactor tank(s)/chamber(s), nutrient storage, a possible heat exchanger, a solids removal device, pumps and associated equipment. To add biological treatment to the FGD wastewater treatment system, Merrimack Station would need to install additional treatment tanks and process equipment and connect it with the physical/chemical treatment system. (iii) Engineering aspects of the application of various types of control techniques As discussed above, physical/chemical treatment is frequently used to treat FGD wastewater and PSNH has chosen it for Merrimack Station. In addition, biological technology optimized for treating nitrates and selenium in FGD wastewater, while 27 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire also removing other pollutants, is used at five existing coal fired steam -electric power plants around the country. 14 According to EPA's research: [s]even power plants in the U.S. are operating or constructing treatment systems that follow physical/chemical treatment with a biological treatment stage to supplement the metals removals with substantial additional reductions of nitrogen compounds and/or selenium. Three of these systems use a fixed film anoxic/anaerobic bioreactor optimized to remove selenium from the wastewater. ... Two other power plants (in addition to the seven biological treatment systems) operate treatment systems that incorporate similar biological treatment stages, but with the biological stage preceded by settling ponds instead of a physical/chemical treatment stage. Although the primary treatment provided by such settling ponds at these plants is less effective at removing metals than physical/chemical treatment, these plants nonetheless further demonstrate the availability of the biological treatment system and its effectiveness at removing selenium and nitrates. EPA's June 7, 2010 Guidance Memorandum, Attachment A, p. 4. EPA also reported that "some coal-fired power plants are moving towards using anoxic/anaerobic biological systems to achieve better reductions of certain pollutants (e.g., selenium, mercury, nitrates) than has been possible with other treatment processes used at power plants." EPA's 2009 Detailed Study Report, p. 4-31. (iv) Cost of achieving effluent reductions PSNH chose to install, and has largely completed installation of, a physical/chemical treatment system at Merrimack Station. This demonstrates that the cost of this system was not prohibitive. While PSNH did not provide EPA with its predicted (or actual) costs for its physical/chemical FGD WWTS, EPA estimates the annualized costs for such a system (not including the polishing step for added mercury removal)15 to be approximately $889,000 (based on approximately $4,869,000 in capital costs and approximately $430,000 in yearly operating and 14 Five power plants operate biological systems optimized to remove selenium; three plants do so in conjunction with physical/chemical treatment and two do so in conjunction with a settling pond (nitrates are also removed in the process of biologically removing selenium). Four other power plants operate biological systems (i.e., sequencing batch reactors) that are optimized to remove ammonia and other nitrogen compounds; the effectiveness of these SBRs at removing selenium has not been quantified. In part, these two different types of biological systems optimize removal of their target pollutants (i.e., selenium versus ammonia and other nitrogen compounds) by controlling the oxidation/reduction potential (ORP) within zones or stages of the bioreactors. Nitrogen compounds and selenium are removed at different ORPs. Thus the manner in which a bioreactor is operated will influence which pollutants it removes and the degree to which they are removed. In addition, removing ammonia biologically requires including an oxidation step within the bioreactor. 15 PSNH did not provide estimated or actual costs for the polishing step and EPA does not presently have sufficient information to generate a reasonable estimate of these costs. 28 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire maintenance costs). See 9/13/11 (07:56 An Email from Ronald Jordan, EPA Headquarters, to Sharon DeMeo, EPA Region 1, "Estimated costs & pollutant reductions for treatment options at Merrimack Station." In addition, EPA estimates that the additional annualized costs of adding biological treatment at Merrimack Station would be approximately $765,000 (based on additional costs of approximately $4,954,000 in capital costs and approximately $297,000 in yearly operating and maintenance costs). Id. EPA also found additional information supporting the reasonableness of these cost estimates. 16 Thus, EPA estimates that the total FGD WWTS, including biological treatment would be approximately $1,654,000 (based on approximately $9,823,000 in capital costs and approximately $727,000 in yearly operating and maintenance costs). Id. EPA notes that data collected from power plants currently operating fixed -film anoxic/anaerobic biological treatment systems show that operating costs are relatively small because electrical consumption is low and relatively little treatment sludge is generated in comparison to physical -chemical treatment.17 Costs on this order of magnitude can reasonably be borne by PSNH. PSNH has been a profitable company and should be able to afford to install biological treatment equipment if it is determined to be part of the BAT for Merrimack Station. For comparison, PSNH Merrimack has reported the total cost of the FGD system, including wastewater treatment, at $430 million. The additional cost for adding biological treatment would represent a small fraction of this total.18 16 One biological system currently in operation is sized to handle approximately 30 times the flow of Merrimack's FGD wastewater treatment system (70,000 gpd) and cost approximately $35 million, including construction of a settling pond and related equipment, such as piping and feed pumps. Another biological system designed to handle wastewater flows almost 5 times greater than Merrimack cost approximately $20 million (including construction of a settling pond and related equipment), while another system 10 times larger than Merrimack Station's treatment system cost less than $27 million (for the bioreactor stage and other facility improvements not related to the bioreactor). Industry responses to the U.S. Environmental Protection Agency "Questionnaire for the Steam Electric Power Generating Effluent Guidelines." (confidential business information (CBI)) Also See Sonstegard, J. et al, "ABMet: Setting the Standard for Selenium Removal." Presented at the International Water Conference, October 2010. 17 Published values in the literature for operating and maintenance costs are on the order of $0.35 to $0.46 per 1,000 gallons of water treated (excluding labor). Three plants, with FGD wastewater flow rates ranging from 0.25 to 2 MGD, have reported annual O&M costs of $152,000 to $400,000 (including labor, and in some cases also including costs for activities not associated with the biological treatment system). Industry responses to the U.S. Environmental Protection Agency "Questionnaire for the Steam Electric Power Generating Effluent Guidelines." (CBI) Also see Sonstegard, J. et al, "ABMet: Setting the Standard for Selenium Removal." Presented at the International Water Conference, October 2010. 18 EPA has also considered information suggesting that physical/chemical treatment coupled with biological treatment is likely to be more cost-effective than physical/chemical treatment alone in terms of cost per pound of pollutant discharge reduced. Id. (data in table indicates a cost per pound of pollutant discharge reduced of $52.60 (based on annualized costs of $889,000/16,900 lbs. of pollutant discharge removed per year) for physical/chemical treatment alone, and of $2.59 (based on 29 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire (v) Non -water quality environmental impacts (including energy requirements) Finally, EPA considered the secondary, non -water quality environmental impacts and energy effects associated with the physical/chemical treatment together with biological treatment, including air emissions, noise, and visual effects at Merrimack Station. To EPA's current knowledge, there is nothing about either physical/chemical treatment or biological treatment that is likely to generate any significant adverse non -water quality environmental effects at Merrimack Station. Physical/chemical treatment is estimated to generate 1,976 tons of solids per year, and require 339,017 kW -hr of electricity. See 9/16/11 (09:57 AM) Email from Ronald Jordan, EPA Headquarters, to Sharon DeMeo, EPA Region 1, "Non -water quality environmental impacts for FGD wastewater treatment options." "The technology option of chemical precipitation in conjunction with biological treatment is estimated to generate a total of 1,986 tons of solids per year (0.5 percent more than the chemical precipitation technology), and require 354,085 kW -hr of electricity (4.4 percent increase relative to chemical precipitation)." Id. There will be some indirect air emissions associated with the energy needed to operate the treatment system. The incremental increases in energy demand and air emissions will be insignificant relative to Merrimack Station's existing energy production and air emissions. 5.0 BPJ-Based BAT Effluent Limits 5.1 Introduction As previously discussed, for pollutants not addressed by the NELGs for a particular class or category of industrial dischargers, permitting authorities develop technology-based effluent limits for NPDES permits on the basis of BPJ. In the text above, EPA evaluated technological alternatives and determined that physical/chemical treatment, coupled with biological treatment, constitutes the BAT for limiting the discharge of certain FGD wastewater pollutants at Merrimack Station.ls Yet, specifying treatment technology does not by itself determine the precise discharge limits that should be included in the permit for pollutants in the FGD annualized costs of $1,654,000/639,900 lbs. of pollutant discharge removed per year) for physical/chemical and biological treatment). is As explained farther below, EPA has determined based on current facts that it should not develop BCT limits at this time (see discussion of BOD and pH, below). Also see section 5.4 below. 30 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire wastewater. For example, EPA's research into facilities using physical/chemical and biological treatment reveals that different facilities display a range of concentrations for various pollutants in the untreated FGD wastewater. The variation in pollutant concentrations at each facility likely results from the interaction of a number of different factors. These may include variables such as the quality of the coal burned at the facility, the type and amount of air pollutants generated in the combustion process, the efficiency with which the scrubbers remove pollutants from the flue gas and transfer it to the wastewater stream, and the degree to which the physical/chemical and biological treatment systems can remove pollutants from the wastewater. The latter factor may, in turn, be affected by the design and operation of the wastewater treatment system (e.g., the types and dosages of chemicals used for precipitation and coagulation; equalization capacity and residence time in the reaction tanks and clarifiers; and operational conditions such as pH set -points in the reaction tanks, sludge recycle frequency/rates, and clarifier sludge levels). EPA's task in setting BAT limits is to set the most stringent pollutant discharge limits that are technologically and economically available (or feasible), and are not otherwise rejected in light of considering the "BAT factors." Neither Merrimack Station's wet FGD scrubber system nor its proposed FGD WWTS is yet operational. As a result, EPA does not have actual data for characterizing the untreated FGD purge from Merrimack Station operations. Nevertheless, EPA has reviewed the available data for a number of FGD systems collected during EPA's detailed study of the industry (described in EPA's 2009 Detailed Study Report) and during EPA's current rulemaking to revise the effluent guidelines. These data include samples of untreated and treated wastewater collected during EPA sampling episodes and self- monitoring data collected by power plants. In determining effluent limits for Merrimack Station, EPA used the best available information to specify permit limits that, consistent with the BAT standard, are appropriately stringent but not infeasible. For the new Merrimack Station NPDES permit, EPA developed BAT -based effluent limits to address wastewater discharges from the FGD WWTS after consulting multiple sources, including EPA's 2009 Detailed Study Report20 and EPA's June 7, 2010 Guidance Memorandum. EPA's 2009 Detailed Study Report summarizes information recently collected by the Agency to inform a determination of whether to revise the current Steam Electric Power Generating NELGs promulgated at 40 C.F.R..Part 423. EPA's June 7, 2010, Guidance Memorandum offers assistance to 20 As part of the data collection activities presented in EPA's 2009 Detailed Study Report, EPA compiled sampling self-monitoring data from a number of power plants. As described below, EPA considered this data, along with other information, in its BPJ determination of BAT -based permit limits for certain pollutants for Merrimack Station. 31 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire NPDES permitting authorities working to establish, on a BPJ basis, BAT -based effluent limits for wastewater discharges from FGD systems at steam electric power generating facilities prior to revisions to the NELGs. In addition, EPA relied on an August 11, 2011, report by EPA's Office of.Water, Engineering and Analysis Division, titled "Determination of Effluent Limits for Flue Gas Desulfurization (FGD) Wastewater at PSNH Merrimack Station Based on Performance of Physical -Chemical Treatment Followed by Biological Treatment" (hereafter "EPA's 2011 Effluent Limits Report"). This report "presents the results of statistical analyses performed on treatment system performance data to calculate effluent limitations for inclusion in Merrimack Station's NPDES permit." August 11, 2011 Memorandum from EPA's Office of Water to EPA Region 1 accompanying EPA's 2011 Effluent Limits Report. Based on the sufficiency of available data, effluent limits were determined for the following parameters: arsenic, chromium, copper, mercury, selenium, and zinc. These limits were based on statistical analyses of self-monitoring data collected by plant staff at Duke Energy's Allen and Belews Creek Stations to evaluate FGD treatment system operations, as well as certain data collected during a study of the Belews Creek treatment system conducted by the Electric Power Research Institute (EPRI) (hereafter "Duke Energy data"). This data reflects performance over several years at these two Duke Energy plants. In EPA's view, this data is the best available reflection of what is possible with the use of physical/chemical and biological treatment for FGD wastewater. Duke Energy's Allen Station and Belews Creek Station are similar to Merrimack Station in that they are coal-fired power plants that burn bituminous coal to generate electricity and "operate limestone forced oxidation wet flue gas desulfurization (FGD) systems to reduce sulfur dioxide (SO2) emissions, producing a commercial -grade gypsum byproduct." EPA's 2011 Effluent Limits Report, p. 3. In addition, PSNH has installed a similar physical/chemical FGD treatment system at Merrimack Station to those at the Duke Energy stations, consisting of one -stage chemical precipitation/iron co -precipitation. Allen and Belews Creek treatment systems, however, also include an anoxic/anerobic biological treatment stage, designed to optimize the removal of selenium.21 "The bioreactor portion of the treatment train consists of bioreactor cells containing activated carbon media and microbes which reduce selenium to its elemental form and precipitate other metals as sulfide complexes. The microbes also reduce the concentration of nitrogen present in the wastewater." Id. The data presented in EPA's 2011 Effluent Limits Report was collected over several years of operation, with samples collected at various intervals during the following periods: March 2009 to May 2011 for Allen Station; and February 2008 to May 2011 21 As mentioned above, see section 3.10, EPA also recognizes that PSNH's proposed treatment system also includes a "polishing step" intended to further reduce mercury levels. See also sections 5.4 and 5.5.11, below. 32 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire for Belews Creek. See EPA's 2011 Effluent Limits Report, p. 6-7 for specifics. Furthermore, the data used to determine effluent limits were generated using sufficiently sensitive analytical methods. EPA believes that this data set is appropriate to use in developing BPJ-based BAT limits for Merrimack Station because it represents long-term performance that reflects variability in the systems. Appropriate analytical and statistical methods were applied to the data to derive daily maximum and monthly average effluent limits for this Draft Permit. The Duke Energy data was thoroughly reviewed and certain values were excluded prior to calculating limits. EPA excluded or corrected data: (1) associated with the treatment system commissioning period; (2) collected during treatment system upsets; (3) not representative of a typical well -operated treatment system; (4) generated using insufficiently sensitive analytical methods; and (5) determined to be extreme values or "outliers". In addition, EPA corrected certain data errors (e.g., data entry errors) to differentiate from the excluded data. EPA's 2011 Effluent Limits Report provides more information about the data points excluded. A modified delta -lognormal distribution was selected to model the pollutant data sets for each plant, except for chromium, and to calculate long-term averages, daily variability factors and monthly variability factors. The long-term averages and variability factors for each pollutant from both plants were then combined (i.e., median of long-term averages and mean of each variability factor). Generally, daily maximum and monthly average limits were determined by taking the product of the combined long-term average and the combined daily or monthly variability factor. EPA's 2011 Effluent Limits Report provides more information about the effluent limits determinations. In addition to the sources described above, EPA also considered information presented by the permittee. Specifically, in PSNH's, December 3, 2010 Report, in response an EPA's information request under CWA §308(a), PSNH identified the concentrations of pollutants that it predicted would be present in the discharge from the new Merrimack Station FGD wastewater treatment system. Yet, EPA generally considers the multi-year data from actual operations at the Duke Energy plants to provide a superior basis for setting permit limits than the facility's , projections given that (1) EPA is determining limits reflecting the BAT, not merely the limits that reflect the performance of Merrimack Station's WWTS, (2) PSNH's projected values do not reflect actual operations, and (3) Merrimack Station may have an incentive to understate, rather than overstate, the pollutant removal capabilities of its proposed treatment technologies in order to receive less stringent permit limits. That said, for certain pollutants not limited using the Duke Energy data, EPA did rely more directly upon the company's projections. Based on the above considerations, EPA's approach to setting permit limits for specific pollutants in the wastewater from Merrimack Station's FGD WWTS is 33 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire described below. (1) For arsenic, chromium, copper, mercury, selenium, and zinc, EPA calculated limits based on analysis of the Duke Energy data, as presented in EPA's 2011 Effluent Limits Report. (2) With regard to the remaining pollutants that might be present in the FGD wastewater, EPA determined for some that it would be appropriate to base limits on the levels that PSNH projected could be achieved by its new FGD WWTS, while for others EPA determined that it would not be appropriate to develop a BPJ-based BAT or, as appropriate, BCT limit at this time.22 The new NPDES permit will also require effluent monitoring to produce actual discharge data to support an assessment of whether permit limits should be made more or less stringent in the future. 5.2 Compliance Location EPA has developed effluent limits for Merrimack Station's FGD WWTS to be applied at internal outfall 003C. This location is appropriate for technology-based limits because the FGD WWTS effluent will be diluted by, and include interferences from, other waste streams prior to discharge to the Merrimack River. See 40 C.F.R. §§ 122.45(h) and 125.3(f). These aspects would make monitoring and analysis impracticable downstream from this location. According to PSNH, Merrimack Station's FGD wastewater will be directed to the slag settling pond (internal outfall 003A) that currently receives the following waste streams: slag (bottom ash) transport wastewater, overflow from slag tanks and storm water from miscellaneous yard drains, boiler blow -down, treated chemical metal cleaning effluent through internal outfall 003B, and other miscellaneous and low volume wastes such as flow from demineralizer regeneration, chemical drains, equipment and floor drains, miscellaneous tank maintenance drains, the yard service building floor drain sump, as well as wastewater consisting of pipe trench storm water, and ash landfill leachate. The FGD wastewater flow will be an average 0.07 MGD compared to the flow into the pond from the other sources, which is approximately 5.3 MGD (average) to 13 MGD (maximum). The magnitude of the dilution, along with the commingling of sources that contain similar pollutants, would make it difficult or impracticable to measure compliance of the FGD wastewater with technology-based limits at the pond sampling location (outfall 003A). Therefore, to ensure the effective control of the pollutants in Merrimack 22 Generally, EPA believes that the application of the wastewater treatment to achieve compliance with the BAT limits specified in the Draft Permit will also inevitably result in the removal of other pollutants not limited in the permit. 34 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire Station's FGD WWTS effluent, the new Draft Permit imposes the effluent limits, and requires compliance monitoring, at internal outfall 003C, prior to the FGD wastewater being mixed with other waste streams. 5.3 Pollutants of Concern in FGD Wastewater EPA began the process of establishing BPJ-based BAT limits by considering those constituents identified in EPA's 2009 Detailed Study Report, at p. 6-3, as "the most frequently cited pollutants in coal combustion wastewater associated with environmental impacts." This list also includes many of the pollutants that were evaluated under the NHDES anti -degradation review. In addition, as part of the next permit reissuance proceeding, EPA expects to assess whether permit limits should be added for additional specific pollutants or whether limits for certain pollutants could be dropped. EPA expects that this assessment will be based on a review of effluent data collected at the facility and any relevant new NELGs that may have been promulgated and supporting information that may have been developed. Table 5-1,, reproduced from the EPA's 2009 Detailed Study Report, discusses the potential for environmental harm from each pollutant compound "depending on the mass pollutant load; wastewater concentration, and how organisms are exposed to them in the environment." EPA's 2009 Detailed Study Report, p. 6-3. Table 5-1 Selected Coal, Combustion Wastewater Pollutants Compound Potential Environmental Concern Frequently observed in high concentrations in coal combustion wastewater; Arsenic causes poisoning of the liver in fish and developmental abnormalities; is associated with an increased risk of cancer in humans in the liver and bladder. Can cause fish kills because of a lack of available oxygen; increases the toxicity of BOD other pollutants, such as mercury. Has been associated with FGD wastewaters that use organic acids for enhanced SO2 removal in the scrubber. Frequently observed in high concentrations in coal combustion wastewater; Boron leachate into groundwater has exceeded state drinking water standards; human exposure to high concentrations can cause nausea, vomiting, and diarrhea. Can be toxic to vegetation. Elevated levels are characteristic of coal combustion wastewater -impacted Cadmium systems; organisms with elevated levels have exhibited tissue damage and organ abnormalities. Sometimes observed at high concentrations in coal combustion wastewater Chlorides (dependent on FGD system practices); elevated levels observed in fish with liver and blood abnormalities. Elevated levels have been observed in groundwater receiving coal combustion Chromium -)wastewater leachate; invertebrates with elevated levels require more energy to 35 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 36 of 52 support their metabolism and therefore exhibit diminished growth. Coal combustion wastewater can contain high levels; invertebrates with elevated Copper levels require more energy to support their metabolism and therefore exhibit diminished growth. Leachate from impoundments has caused, elevated concentrations in nearby Iron surface water; biota with elevated levels have exhibited sublethal effects including metabolic changes and abnormalities of the liver and kidneys. Concentrations in coal combustion wastewater are elevated initially, but lead settles out quickly; leachate has caused groundwater to exceed state drinking water standards. Human exposure to high concentrations of lead in drinking Lead water can cause serious damage to the brain, kidneys, nervous system, and red blood cells. Manganese Coal combustion wastewater leachate has caused elevated concentrations in nearby groundwater and surface water; biota with elevated levels have exhibited sublethal effects including metabolic changes and abnormalities of the liver and kidneys. Biota with elevated levels have exhibited sublethal effects including metabolic changes and abnormalities of the liver and kidneys; can convert into Mercury methylmercury, increasing the potential for bioaccumulation; human exposure at levels above the MCL for relatively short periods of time can result in kidney damage. Nitrogen Frequently observed at elevated levels in coal combustion wastewater; may cause eutrophication of aquatic environments. Acidic conditions are often observed in coal combustion wastewater; acidic p H conditions may cause other coal combustion wastewater constituents to dissolve, increasing the fate and transport potential of pollutants and increasing the potential for bioaccumulation in aquatic organisms. Phosphorus Frequently observed at elevated levels in coal combustion wastewater; may cause eutro hication of aquatic environments. Frequently observed at high concentrations in coal combustion wastewater; readily bioaccumulates; elevated concentrations have caused fish kills and numerous sublethal effects (e.g., increased metabolic rates, decreased growth Selenium rates, reproductive failure) to aquatic and terrestrial organisms. Short term exposure at levels above the MCL can cause hair and fingernail changes; damage to the peripheral nervous system; fatigue and irritability in humans. Long term exposure can result in damage to the kidney, liver, and nervous and circulatory systems. Total dissolved High levels are frequently observed in coal combustion wastewater; elevated solids levels can be a stress on aquatic organisms with potential toxic effects; elevated levels can have impacts on agriculture & wetlands. Frequently observed at elevated concentrations in coal combustion wastewater; Zinc biota with elevated levels have exhibited sublethal effects such as requiring more energy to support their metabolism and therefore exhibiting diminished growth, and abnormalities of the liver and kidneys. 36 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 5.4 The BAT for Controlling Merrimack Station's FGD Wastewater PSNH has installed a wet FGD system utilizing a limestone forced oxidation scrubber (LSFO). Most plants that utilize this type of scrubber system produce a commercial -grade gypsum by-product and a wastewater stream. Such wastewater streams require treatment for the removal of solids and pollutants prior to discharge. As explained previously: [t]he FGD system works by contacting the flue gas stream with a slurry stream containing a sorbent. The contact between the streams allows for a mass transfer of sulfur dioxide as it is absorbed into the slurry stream. Other pollutants in the flue gas (e.g., metals, nitrogen compounds, chloride) are also transferred to the scrubber slurry and leave the FGD system via the scrubber blowdown (i.e., the slurry stream exiting the FGD scrubber that is not immediately recycled back to the spray/tray levels). See EPA's 2009 Detailed Study Report, p. 4-15. PSNH plans to purge the scrubber slurry from the FGD on a regular, periodic (i.e., not continuously) basis tomaintain suitable scrubber chemistry (70,000 gpd average).23 Hydroclones (a centrifugal device) will be used to separate the solid gypsum from the liquid component of the scrubber slurry. This liquid component will be directed to the FGD WWTS and will contain chlorides, heavy metals, dissolved gypsum and other inert suspended solids. As previously described, PSNH is installing a physical/chemical precipitation treatment system to remove pollutants from the wastewater prior to discharging the effluent to the Merrimack River. EPA reviewed physical/chemical treatment (i.e., chemical precipitation) as a technology and compared the systems described in EPA's 2009 Detailed Study Report and EPA's June 7, 2010 Guidance Memorandum with the system being installed at Merrimack Station. All of these systems have a series of reaction tanks in which precipitation and coagulation take place and in which insoluble metal hydroxides and metal sulfides are formed. This is,followed by solids settling and physical removal. This treatment method is used at approximately 30 power plants in the U.S. See EPA's June 7, 2010 Guidance Memorandum, Attachment A, p. 4. Approximately half of these plants — as well as Merrimack Station's FGD WWTS — also add sulfide precipitation to the treatment process for more efficient removal of mercury and other metals. In addition to physical/chemical treatment, three plants in the U.S. incorporate a biological treatment stage, added after chemical precipitation and solids removal, 23 PSNH has indicated that the scrubber purge rate may need to be increased, depending on actual operating characteristics of the scrubber system. According to PSNH, the discharge flow may increase to 100,000 gpd. Such an increase would not, however, affect the technology-based and water quality -based permitting evaluations. 37 of 52 V Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire specifically for reducing levels of dissolved selenium. Two additional U.S. plants operate biological treatment for removing selenium, but these plants use settling ponds instead of physical/chemical treatment prior to the biological treatment step. There are another four plants that incorporate a biological treatment stage following chemical precipitation and solids removal, but the biological stage at these four plants is a sequencing batch reactor that is operated at ORP levels that optimize the removal of nitrogen compounds instead of selenium. See EPA's June 7, 2010 Guidance Memorandum, Attachment A, p. 4. The evidence reviewed by EPA indicates that physical/chemical treatment with biological treatment will remove selenium, additional dissolved metals and other pollutants from the FGD wastewater, beyond the level of removal achieved by physical/chemical treatment alone, and that adding a biological treatment stage is an available, cost-effective technological option.24 In addition, EPA's evaluation concluded that additional removals of mercury could be attained through the use of the proprietary adsorbent media (or "polishing step"), which PSNH is installing on the "backside" of the new physical/chemical treatment system. Therefore, EPA has determined that the combination of physical/chemical treatment with biological treatment and the polishing step (for removal of mercury) are components of BAT for the control of FGD wastewater at Merrimack Station. EPA's determination that these technologies are components of BAT for the facility is also supported by EPA's above-described consideration of the BAT factors specified in the statute and regulations. Therefore, statistical analysis was performed on the data from the effluent of the physical/chemical and biological treatment systems at Belews Creek and Allen Stations to calculate limits for certain pollutants in the Merrimack Station Draft Permit, as described in this document. With regard to mercury, as also discussed below, the Draft Permit limit is based on use of the polishing medium in the physical/chemical treatment system. Finally, for chlorides and total dissolved solids (TDS), EPA has determined that the BAT for Merrimack Station's FGD wastewater is not based on treatment/removal of these compounds. Instead, the BAT for these constituents is based on the operating characteristics of the FGD scrubber. As described below, the chloride and TDS levels in the discharge will be determined by the FGD scrubber purge rate, which is an operational set -point that will be established by the plant. A scrubber's set -point is determined largely by the maximum amount of chlorides (one component of TDS) allowable in the FGD system without causing corrosion of the equipment. Thus, it is based on the most vulnerable materials of construction. 24 In fact, in 2003, at "The 19th Annual International Conference on Soils, Sediments and Water", representatives from Applied Biosciences Corporation reported that "Applied Biosciences has developed the ABMetTM microbial bioprocess for the removal of metals and inorganics from industrial and other waters.... and has demonstrated removal of As, Se, Cu, Ni, Zn, Hg, Cd, Cr, Te, NO3, CN, and NH3." See htti):Hscholarworks.umass.edu/soils conf abstracts/2Conference Co -Direct. 38 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire While EPA has based these BAT technology-based effluent limits on either an available treatment train consisting of 1) physical/chemical treatment, 2) the PSNH polishing step, and 3) biological treatment, or the operational conditions of the scrubber', PSNH may meet these limits using any means legally available. 5.5 Effluent Limits 5.5.1 Arsenic Although PSNH projects that Merrimack Station's physical/chemical treatment system will be able to achieve a level of 20 ug/L for total arsenic, EPA has determined that physical/chemical treatment (with or without the biological treatment stage) can achieve lower arsenic levels. Therefore, the new Draft Permit includes BAT limits of 15 ug/L (daily maximum) and 8 ug/ L (monthly average) for total arsenic at internal outfall 003C. These limits are primarily based on the analysis in EPA's 2011 Effluent Limits Report. 5.5.2 SOD Although EPA's October 29, 2010, information request directed PSNH to identify what it regarded to be an achievable BOD concentration limit for its FGD wastewater, the company failed to identify an attainable level. In EPA's 2009 Detailed Study Report, p. 5, the Agency explained that: [b]iochemical oxygen demand (BOD) is a measure of the quantity of oxygen used by microorganisms (e.g., aerobic bacteria) in the oxidation of organic matter. The primary source of BOD in coal combustion wastewater is the addition of organic acid buffers to the FGD scrubbers. Organic acids are added to some FGD scrubbers to improve the SO2 removal efficiency of the systems. Merrimack Station does not, however, plan to add organic acid buffers to its newly installed FGD system, obviating any concern about high BOD levels in the wastewater. In addition, there is presently little data available concerning BOD levels in FGD wastewater from which to determine effluent limits. See Duke Energy data and EPA's 2009 Detailed Study Report. In light of the above considerations, EPA has determined that including a BPJ- based BCT limit for BOD is not appropriate at this time. However, the Draft Permit requires the permittee to sample and report BOD5 levels in the FGD effluent to support consideration of whether or not BOD limits might be needed in the future. 39 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire The Draft Permit requires weekly sampling. After weekly sampling data has been collected for at least six months, after an initial startup period of six months, the permittee may request a reduction in monitoring for BOD at this location. The permittee may submit a written request to EPA seeking a review of the BOD test results. EPA will review the test results and other pertinent information to make a determination of whether a reduction in testing is justified. The frequency of BOD testing may be reduced to no less than one test per year. The permittee is required to continue testing at the frequency specified in the permit until the permit is either formally modified or until the permittee receives a certified letter from the EPA indicating a change in the permit conditions. As part of the next permit reissuance proceeding, EPA plans to reassess whether a BOD permit limit should be added to the permit based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.3 Boron Although EPA's October 29, 2010 information request directed PSNH to identify what it regarded to be an achievable boron concentration limit for its FGD wastewater, the company did not identify an attainable level. EPA's research indicates that FGD wastewaters contain a wide range of total boron levels. This highly variable range is seen in the power plant self-monitoring data submitted to EPA and presented in EPA's 2009 Detailed Study Report25, as well as in the Allen Station and Belews Creek data that was recently submitted to EPA upon request. It is presently unclear whether and at what level boron may be found in Merrimack Station's FGD wastewater. Boron is one of several pollutants that are almost exclusively present in the dissolved phase. In addition, boron is not easily removed by physical/chemical treatment with or without the biological treatment stage. See EPA's 2009 Detailed Study Report p. 4-18. Also see EPA's June 7, 2010 Guidance Memorandum, Attachment A, p.4. Therefore, EPA has determined that it cannot reasonably set a BPJ-based BAT limit for boron at this time.' Consequently, the Draft Permit requires the permittee to sample and report boron levels in the FGD waste stream but does not propose a technology-based effluent limit. As part of the next permit reissuance proceeding, EPA currently plans to assess 25 A range of 17,000 to 474,000 ug/L of total boron was reported for two plants utilizing physical/chemical treatment, and from 7,820 to 666,000 ug/L of total boron for two plants that use biological treatment. EPA's 2009 Detailed Study Report, pp. 4-65 and 4-67. 40 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire whether a boron permit limit should be added based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.4 Cadmium PSNH projects that Merrimack Station's physical/chemical treatment system will be able to achieve a level of 50 ug/L• for total cadmium. Although there is evidence that some plants have discharged FGD wastewater with lower cadmium levels,26 there is insufficient information at this time upon which to prescribe a cadmium limit lower than that proposed by PSNH.27 Therefore, EPA is basing the Draft Permit limit on PSNH's projected level of 50 ug/L. As part of the next permit reissuance proceeding, EPA expects to assess whether this cadmium permit limit should be adjusted based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.5 Chlorides EPA has found no evidence to suggest that physical/chemical treatment with or without the biological treatment stage is effective in removing chlorides. The chloride level in the discharge will be determined by the FGD scrubber purge rate, which is an operational set -point that will be established by the plant. A scrubber's set -point is determined largely by the maximum amount of chlorides allowable for preventing corrosion of the equipment, thus it is based on the most vulnerable materials of construction. PSNH proposed that the FGD WWTS at Merrimack Station would discharge up to 18,000 mg/L chlorides.28 Therefore, this value is chosen as the BAT -based Draft Permit limit for Merrimack Station. As part of the 26 Self-monitoring cadmium data from three plants utilizing physical/chemical treatment ranged from 0.07 — 21.9 ug/L (18 samples) and from one plant using biological treatment ranged from ND (0.5) — 3.57 ug/L (37 samples). EPA's 2009 Detailed Study Report, pp. 4-65 and 4-67. An anoxic/anaerobic biological treatment system can reduce metals such as selenium, arsenic, cadmium, and mercury, by forming metal sulfides within the system. Id. at 4-32. See also Duke Energy data from Allen and Belews Creek Stations. 27 An anoxic/anaerobic biological treatment system can reduce metals such as selenium, arsenic, cadmium, and mercury, by forming metal sulfides within the system. EPA's 2009 Detailed Study Report, p.4-32. EPA's 2009 Detailed Study Report shows that self-monitoring cadmium data from three plants utilizing physical/chemical treatment ranged from 0.07 — 21.9 ug/L (18 samples) and from one plant using biological treatment ranged from ND (0.5) — 3.57 ug/L (37 samples). See also Duke Energy data from Allen and Belews Creek Stations. 28 Self-monitoring chloride data from two plants utilizing physical/chemical treatment ranged from 4,700 — 20,500 mg/L (21 samples). EPA's 2009 Detailed Study Report, p. 66. 41 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire next permit reissuance, EPA plans to assess whether this chloride permit limit should be adjusted based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.6 Chromium PSNH did not report an achievable concentration of total chromium as requested by EPA's October 29, 2010, information request. However, PSNH did report projected levels of 50 ug/L and 100 ug/L for trivalent and hexavalent chromium, respectively. Chromium is more likely found in the particulate, rather than the dissolved, phase in scrubber blowdown. Therefore, it is more easily removed in the treatment process. In the Draft Permit, EPA is proposing a daily maximum limit of 10 ug/L for total chromium at internal outfall 003C based primarily on the analysis presented in EPA's 2011 Effluent Limits Report. Based on data restrictions for chromium from the Duke Energy plants, no monthly average limit was calculated. See EPA's 2011 Effluent Limits Report. EPA expects to reconsider whether a monthly average limit should be added to the permit during the next permit reissuance proceeding based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.7 Copper PSNH projects that Merrimack Station's physical/chemical treatment system will be able to achieve a level of 50 ug/L for total copper. EPA has determined, however, that physical/chemical treatment with or without the biological treatment stage can achieve lower copper levels. In particular, EPA is proposing in the Draft Permit a daily maximum limit of 16 ug/L and a monthly average limit of 8 ug/L for total copper at internal outfall 003C based primarily on the analysis presented in EPA's 2011 Effluent Limits Report. 5.5.8 Iron Although PSNH projects that Merrimack Station's treatment system will be able to achieve a discharge concentration of 100 ug/L for iron, EPA has determined on a BPJ basis that BAT limits for iron are not appropriate at this time. Ferric chloride will be added in the FGD physical/chemical treatment process at Merrimack Station to co -precipitate a variety of heavy metals in the wastestream and further promote the coagulation of suspended solids. Generally, EPA does not set effluent limits for parameters that are associated with wastewater treatment chemicals, assuming that system and site controls demonstrate good operation of the treatment 42 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire technology.29 Consequently, the Draft Permit requires the permittee to sample and report iron levels in the FGD waste stream but does not propose a technology-based effluent limit. As part of the next permit reissuance proceeding, EPA expects to reassess whether an iron limit would be appropriate based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.9 Lead Lead can be effectively removed by physical/chemical treatment, such as the system installed at Merrimack Station, and PSNH predicts that the FGD WWTS installed at Merrimack Station will be able to achieve a total lead discharge concentration of 100 ug/L. This value is within the range of self-monitoring lead data collected in response to EPA's 2009 Detailed Study Report.30 EPA is basing the Draft Permit limit on PSNH's projected value of 100 ug/L because the Agency does not have sufficient data from which to calculate an alternative BAT -based lead limit for Merrimack's FGD WWTS at this time. As part of the next permit reissuance proceeding, EPA expects to assess whether this permit limit for lead should be adjusted based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 29 For example, the Development Document for the December 2000 Centralized Waste Treatment Final Rule, page 7-1, states that "EPA excluded all pollutants which may serve as treatment chemicals: aluminum, boron, calcium, chloride, fluoride, iron, magnesium, manganese, phosphorus, potassium, sodium, and sulfur. EPA eliminated these pollutants because regulation of these pollutants could interfere with their beneficial use as wastewater treatment additives." (htti)://water.el)a.gov/scitech/wastetech/guide/treatment/upload/2000 10 19 guide cwt fina develop ch7. d Similarly, the Development Document for the October 2002 Iron and Steel Manufacturing Point Source Category Final Rule, page 12-1, states that "EPA excluded all pollutants that may serve as treatment chemicals: aluminum, boron, fluoride, iron, magnesium, manganese, and sulfate (several other pollutants are commonly used as treatment chemicals but were already excluded as POCs). EPA eliminated these pollutants because regulation of these pollutants could interfere with their beneficial use as wastewater treatment additives." (http://water.epa.gov/scitech/wastetech/guide/ironsteel/u-oload/2003 05 27 guide ironsteel reg tdd s ectionsl2-17.pdf) 30 Self-monitoring data for lead from four plants using physical/chemical treatment ranged from ND (0.07) to 11 ug/L (47 samples). In addition, one plant using biological treatment reported lead ranging from ND(1.9) to 291 ug/L (37samples). EPA's 2009 Detailed Study Report, pp 4-65 and 4-67. 43 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 5.5.10 Manganese PSNH projects that Merrimack Station's treatment system can achieve a manganese level of 3000 ug/L. This is within the wide range of values that EPA collected during the development of EPA's 2009 Detailed Study Report (see pages 4- 65 and 4-67). Although manganese is one of several pollutants entering treatment systems almost entirely in the dissolved phase (see EPA's 2009 Detailed Study Report, pp. 4-18 and 4-26), there is some evidence suggesting that physical/chemical treatment can achieve some removal of manganese from FGD system wastewater. See FGD Flue Gas (FGD) Wastewater Characterization and Management: 2007 Update, 1014073, Final Report, March 2008 (EPRI Project Manager P. Chu). At the same time, however, EPA presently has only a very limited data pool for manganese in FGD system wastewater. As a result, the Agency has determined based on BPJ that the BAT limit for manganese is the level projected by PSNH and this level has been included as a limit in the Draft Permit. As part of the next permit reissuance proceeding, EPA expects to assess whether this permit limit for manganese should be adjusted based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.11 Mercury Mercury is one of several metals that may potentially be removed more effectively by biological treatment than physical/chemical treatment alone. Based on the analysis presented in EPA's 2011 Effluent Limits Report, EPA would prescribe BAT limits for total mercury discharges from Merrimack Station's FGD WWTS of 0.055 ug/L (daily maximum) and 0.022 ug/L (monthly average). Merrimack Station projects even better performance, however, from its physical/chemical treatment system with the addition of the previously mentioned "polishing step." This polishing step involves the use of two sets of proprietary adsorbent media targeted specifically for mercury. In particular, PSNH projects that its proposed treatment system can achieve a limit of 0.014 ug/L. Therefore, EPA has included a technology- based limit of 0.014 ug/L (daily maximum) in the Draft Permit to control the discharge of mercury in the effluent from Merrimack Station's FGD WWTS based on the company's newly installed physical/chemical treatment system with the added polishing step. 5.5.12 Nitrogen While biological treatment systems can remove both selenium and nitrogen compounds, the treatment systems currently operating have not been optimized for 44 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire the removal of both types of contaminants. Instead, these treatment systems have been optimized for the removal of one or the other. Seven power plants in the U.S. are operating or constructing treatment systems that follow physical/chemical treatment with a biological treatment stage.... Three of these systems use a fixed film anoxic/anaerobic bioreactor optimized to remove selenium from the wastewater.... Four power plants operate the treatment system with the biological stage optimized for nitrogen removal by using a sequencing batch reactor to nitrify and denitrify the wastewater and produce very low concentrations of both ammonia and nitrates. EPA's June 7, 2010 Guidance Memorandum, Attachment A, p. 4. Although biological treatment systems remove nitrates in the process of removing selenium,31 it is unclear to what extent, if any, biological treatment affects ammonia -nitrogen and other nitrogen compounds, unless a process such as nitrification is added. In determining the BAT for Merrimack Station, EPA has decided that the biological treatment system should be optimized for selenium removal due to the toxicity and bioaccumulation potential of that contaminant. (EPA discusses the Draft Permit's selenium limits further below.) Although PSNH predicts that the newly installed FGD WWTS — without biological treatment — can achieve discharge levels of <350 mg/L of ammonia -nitrogen (NH3-N) and <350 mg/L for nitrates/nitrites (NONNO2-N), EPA cannot reasonably set a total nitrogen limit at this time because the level of total nitrogen likely to remain in Merrimack Station's FGD WWTS effluent after biological treatment that has been optimized for selenium removal is uncertain. The added biological treatment stage will likely remove some nitrogen, but EPA is unable to quantify likely discharge levels at this time. The Draft Permit does require the permittee to sample and report nitrogen levels in the FGD wastewater stream. As part of the next permit reissuance, EPA plans to assess whether a nitrogen permit limit should be added based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 31 Both Allen and Belews Creek Stations employ anoxic/anaerobic biological treatment of their FGD wastewater, optimized for the removal of selenium compounds. EPA's 2011 Effluent Limits Report, page 4, indicates that for each plant, "[t]he bioreactor portion of the treatment train consists of bioreactor cells containing activated carbon media and microbes which reduce selenium to its elemental form and precipitate other metals as sulfide complexes. The microbes also reduce the concentration of nitrogen present in the wastewater." See also Duke Energy data. 45 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 5.5.13 pH As previously discussed, Merrimack's FGD wastewater will be directed to the slag settling pond that currently receives numerous waste streams including bottom ash transport water, metal cleaning effluent, low volume wastes, and stormwater. The FGD wastewater flow (70,000 gpd) will be diluted by the other waste streams in the pond (5.3 MGD (average) to -13 MGD (maximum)). EPA has determined that monitoring for pH is not necessary at internal outfall 003C. EPA's March 21, 1986, Memorandum from Charles Kaplan, EPA, to Regional Permit Branch Chiefs and State Directors, explains that using dilution to accomplish the neutralization of pH is preferable to adding chemicals when commingling low volume waste with once through cooling water. EPA is using this same approach in this case and has determined that including a BPJ-based, BCT limit for pH is not necessary or appropriate at this time. See Merrimack Station Fact Sheet for the explanation of the water quality -based pH limit at outfall 003A (slag settling pond). 5.5.14 Phosphorus PSNH did not project a particular concentration of phosphorus that could be achieved by Merrimack Station's new FGD WWTS, as was requested by EPA's October 29, 2010 information request. Similar to iron,, phosphorus may be added (or used) in the FGD wastewater treatment process. Anoxic/anaerobic biological treatment systems remove selenium and other compounds using suspended growth or fixed film reactors comprised of a bed of activated carbon (or other supporting medium) on which microorganisms (i.e., site-specific bacteria cultures) live. A common food source used consists of a molasses -based nutrient mixture that contains carbon, nitrogen, and phosphorus.32 As discussed above, EPA generally does not set technology-based effluent limits for parameters that are associated with wastewater treatment chemicals. See footnote 29 of this document. Therefore, EPA has determined, using BPJ, that BAT limits for phosphorus are not appropriate at this time. Consequently, the Draft Permit requires the permittee to sample and report phosphorus levels in the FGD waste stream but does not propose technology-based effluent limits. EPA expects to reconsider whether a phosphorus limit would be appropriate during the next permit reissuance proceeding based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 32 United States Patent, Sep. 7, 2010, No. 7,790,034 B2, Apparatus and Method for Treating FGD Blowdown or Similar Liquids, p. 11. This patent, assigned to Zenon Technology Partnership indicates that the wastewater flow through the system "may already contain sufficient phosphorus and so there may be no need for phosphorus in the nutrient solution." (http://data.il)thoughts.com/l)ublication/09102010/TJS7790034) 46 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 5.5.15 Selenium PSNH reported that FGD wastewater at Merrimack Station could be treated to achieve 9,000 ug/L total selenium using physical/chemical processes. However, EPA has determined that physical/chemical treatment with an added biological treatment stage results in much lower selenium levels. "Biological treatment, specifically fixed -film anoxic/anaerobic bioreactors when paired with a chemical precipitation pretreatment stage, is very effective at removing additional pollutants such as selenium and nitrogen compounds (e.g., nitrate, nitrites)." EPA's 2009 Detailed Study Report, p. 4-50. EPA is'proposing a daily maximum limit of 19 ug/L and a monthly average limit of 10 ug/L for total selenium at internal outfall 003C based primarily on the analysis presented in EPA's 2011 Effluent Limits Report. 5.5.16 Total Dissolved Solids PSNH projects that the FGD WWTS at Merrimack Station will be able to achieve a level of total dissolved solids (TDS) of 35,000 mg/L, which is well above the, range of data reported in EPA's 2009 Detailed Study Report.33 At the same time, however, EPA finds no current evidence toysuggest that physical/chemical treatment (with or without the biological treatment stage) effectively removes TDS.34 The chlorides level in the, discharge will be determined by how the FGD scrubber purge is managed and represents a substantial component of the TDS. Thus, the controlling factors for the TDS effluent concentration are similar to those described for chlorides. Therefore, the BAT limit is based on how the company manages its scrubber and not on the actual treatment system for the blowdown. The Draft Permit limit in this case is PSNH's projected value of 35,000 mg/L. In addition, as part of the next permit reissuance proceeding, EPA plans to assess whether this TDS permit limit should be adjusted based on consideration of any new NELGs that may have been promulgated and a review of monitoring data and any other relevant new information. As always, new information could also potentially support future permit modifications during the term of the new permit. 5.5.17 Zinc PSNH projects that Merrimack Station's physical/chemical treatment system can, achieve a level of 100 ug/L. However, other plants evaluated by EPA show that lower limits can consistently be achieved using this technology. EPA is proposing a daily maximum limit of 15 ug/L and monthly average limit of 12 ug/L for total zinc 33 Self-monitoring data from one plant (16 samples) using physical/chemical treatment ranged from 12,000 — 23,000 mg/L. In addition, the range from two plants (52 samples) with biological treatment is 2,500 — 23,000 mg/L. EPA's 2009 Detailed Study Report, pp. 4-66 and 4-67. 34 EPA reported that "...the figures [2008 monitoring data from Belews Creek and Roxboro stations] show that TDS is not significantly removed by the settling pond, the chemical precipitation system, or the biological treatment system." EPA's 2009 Detailed Study Report, p. 4-51. 47 of 52 r Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire at internal outfall 003C based primarily on the analysis presented in EPA's 2011 Effluent Limits Report. 5.6 Summary of Effluent Limits The following table summarizes the Draft Permit limits for outfall location 003C — FGD WWTS and the rationale for each of the BPJ-based BAT limits: Table 5-2 Draft Permit Limits for Outfall 003C Compound/ Units Maximum Monthly BAT Limit Daily Limit Average Limit Based On Flow Report Report --- Arsenic (ug/L) 15 8 EPA calculations Boron (ug/L) Report Report no BAT numerical effluent limit at this time Cadmium (ug/L) 50 Report PSNH projected value Chromium (ug/L) 10 Report EPA calculations Copper (ug/L) 16 8 EPA calculations Iron (ug/L) --- Report no BAT numerical effluent limit at this time Lead (ug/L) 100 Report PSNH projected value Manganese (ug/L) 3,000 Report PSNH projected value PSNH projected value Mercury (ug/L) 0.014 Report (physical/chemical w/ polishing step) Selenium (ug/L) 19 10 EPA calculations Zinc (ug/L) 15 12 EPA calculations BOD,(mg/L) Report Report no BCT numerical effluent limit at this time Chlorides (mg/L) 18,000 Report PSNH projected value Nitrogen (mg[L) Report Report no BAT numerical effluent limit at this time pH --- --- water quality -based range 48 of 52 4 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire 5.7 Sufficiently Sensitive Analytical Methods To prevent undetected exceedances of these permit limits, EPA's Draft Permit requires sufficiently sensitive analytical methods to be used for compliance monitoring purposes. EPA recommends that "for purposes of permit applications and compliance monitoring, a method is `sufficiently sensitive' when (1) the method quantitation level is at or below the level of the applicable water quality criterion for the pollutant, or (2) the method quantitation level is above the applicable water quality criterion, but the amount of pollutant in a facility's discharge is high enough that the method detects and quantifies the level of pollutant in the discharge." EPA's June 7, 2010 Guidance Memorandum, Attachment A, p. 6. Therefore, the Merrimack Draft Permit includes a provision for outfall location 003C that the permittee is required to use EPA approved methods that are sufficiently sensitive to measure each FGD pollutant at concentrations low enough to determine compliance. Furthermore, as currently indicated on EPA's Steam Electric Power Generating website page: [w]astewater from flue gas desulfurization (FGD) systems can contain constituents that may interfere with certain laboratory analyses, due to high concentrations of total dissolved solids (TDS) or the presence of elements known to cause matrix interferences. EPA has observed that, during inductively coupled plasma — mass spectrometry (ICP -MS) analysis of FGD wastewater, certain elements commonly present in the wastewater may cause polyatomic interferences that bias the detection and/or quantitation of certain elements of interest. These potential interferences may become significant when measuring trace elements, such as arsenic and selenium, at concentrations in the low parts -per -billion range. As part of a recent sampling effort for the steam electric power generating effluent guidelines rulemaking, EPA developed a standard operating procedure (SOP) that was used in conjunction with EPA Method 200.8 to conduct ICP -MS analyses of FGD wastewater. The SOP describes critical 49 of 52 at outfall 003A Phosphorus (mg/L) --- Report no BAT numerical effluent limit at this time TDS (mg/L) 35,000 Report PSNH projected value 5.7 Sufficiently Sensitive Analytical Methods To prevent undetected exceedances of these permit limits, EPA's Draft Permit requires sufficiently sensitive analytical methods to be used for compliance monitoring purposes. EPA recommends that "for purposes of permit applications and compliance monitoring, a method is `sufficiently sensitive' when (1) the method quantitation level is at or below the level of the applicable water quality criterion for the pollutant, or (2) the method quantitation level is above the applicable water quality criterion, but the amount of pollutant in a facility's discharge is high enough that the method detects and quantifies the level of pollutant in the discharge." EPA's June 7, 2010 Guidance Memorandum, Attachment A, p. 6. Therefore, the Merrimack Draft Permit includes a provision for outfall location 003C that the permittee is required to use EPA approved methods that are sufficiently sensitive to measure each FGD pollutant at concentrations low enough to determine compliance. Furthermore, as currently indicated on EPA's Steam Electric Power Generating website page: [w]astewater from flue gas desulfurization (FGD) systems can contain constituents that may interfere with certain laboratory analyses, due to high concentrations of total dissolved solids (TDS) or the presence of elements known to cause matrix interferences. EPA has observed that, during inductively coupled plasma — mass spectrometry (ICP -MS) analysis of FGD wastewater, certain elements commonly present in the wastewater may cause polyatomic interferences that bias the detection and/or quantitation of certain elements of interest. These potential interferences may become significant when measuring trace elements, such as arsenic and selenium, at concentrations in the low parts -per -billion range. As part of a recent sampling effort for the steam electric power generating effluent guidelines rulemaking, EPA developed a standard operating procedure (SOP) that was used in conjunction with EPA Method 200.8 to conduct ICP -MS analyses of FGD wastewater. The SOP describes critical 49 of 52 Determination of Technology -Based Effluent Limits for the Flue Gas Desulfurization Wastewater at Merrimack Station in Bow, New Hampshire technical and quality assurance procedures that were implemented to mitigate anticipated interferences and generate reliable data for FGD wastewater. EPA regulations at 40 CFR 136.6 already allow the analytical community flexibility to modify approved methods to lower the costs of measurements, overcome matrix interferences, or otherwise improve the analysis. The draft SOP developed for FGD wastewater takes a proactive approach toward looking for and taking steps to mitigate matrix interferences, including using specialized interference check solutions (i.e., a synthetic FGD wastewater matrix). http://water.epa.gov/Scitech/wastetech/guide/steam index.cfm. EPA's draft "FGD ICP/MS Standard Operating Procedure: Inductively Coupled Plasma/Mass Spectrometry for Trace Element Analysis in Flue Gas Desulfurization Wastewaters," dated May 2011 is available at this website page or directly at http://water.gpa.gov/scitech/wastetech/guide/upload/steam draft sop.pdf. PSNH is encouraged to make this document available to its contract laboratory as an alternative approach to mitigate matrix interferences during the analysis of Merrimack Station's FGD wastewater. 50 of 52 0