NC0000396_Draft Permit_20180823

SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone] s 48 PATTON AVENUE,SUITE 304 Facsimile 828-258-2024
ASHEVILLE.NC 28801-3321
August 23,2018
Via First Class U.S. Mail and Electronic Mail RECEIVED/pENR/pWR
Sergei ChemikovDWR—Wastewater Permitting AUG 2 7 2018
Attn: Asheville Permit Water Resources
Attn: Asheville SOC Permitting Section
1617 Mail Service Center
Raleigh,NC 27699-1617
[e-mail]
Re: Asheville Steam Electric Plant,Draft NPDES Permit,#NC0000396, and
Special Order by Consent,EMC SOC WQ S17-010
Dear Mr. Chemikov:
On behalf of MountainTrue and the French Broad Riverkeeper,the Waterkeeper
Alliance, and the Sierra Club,we submit the following comments on the draft renewal National
Pollutant Discharge Elimination System ("NPDES")permit and Special Order by Consent
("SOC") noticed for public comment by the North Carolina Department of Environmental
Quality("DEQ")Division of Water Resources for Duke Energy's discharge of pollution from its
Asheville Steam Electric Plant("Asheville plant").
MountainTrue is a nonprofit organization dedicated to protecting streams, rivers, and
groundwater from contamination. MountainTrue houses the French Broad Riverkeeper who
monitors and advocates for improved water quality across the French Broad River watershed.
MountainTrue's members use the French Broad River for recreation, business, or educational
purposes and rely on groundwater as a source of drinking water, including groundwater in close
proximity to the Asheville plant.
Waterkeeper Alliance is a nonprofit organization dedicated to achieving drinkable,
fishable, swimmable water everywhere on earth. Waterkeeper Alliance works through local
waterkeepers including the French Broad Riverkeeper.
Sierra Club is a nonprofit organization that seeks to restore the quality of the natural and
human environment. As part of that mission it seeks to improve water quality. Sierra Club's
members also rely on the French Broad River for recreation, business, or educational purposes.
Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington,DC
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MountainTrue and the French Broad Riverkeeper, Waterkeeper Alliance, and the Sierra
Club all advocate for cleaner water, awareness and education of the French Broad River,
improved access, and broadened recreational opportunities within the French Broad River Basin.
For years, each organization has advocated in the courts and public arena for proper cleanup and
remediation of Duke Energy's unlined, leaking coal ash impoundments, including those at the
Asheville plant.
This revised permit is long overdue. NPDES permits are to be renewed every five years
but Duke has'operated under the current permit at the Asheville plant for over ten years. We are
glad to see DEQ issue a new NPDES permit to better reflect and incorporate changes in the
plant's wastewater treatment system.
The most significant change is incorporating the requirement to excavate the 1982 and
1964 ash ponds at the Asheville plant. Removing ash from leaking, unlined ponds perched
above major rivers and drinking water reservoirs is the best and safest way to deal with the
decades of coal ash mismanagement at Duke's power plants. Removing the ash helps alleviate
surface water contamination, groundwater contamination, and removes the threat of catastrophic
failure of the ponds similar to what occurred at TVA's Kingston plant in 2008 and Duke's Dan
River plant in 2014. We advocated for Asheville's ponds being excavated and moved to dry,
lined storage to address the source of contamination of groundwater and surface water. All
North Carolinians living near or downstream of unlined ash ponds deserve this basic protection.
The draft permit includes other improvements. The monitoring requirements for outfall
001 are changed from quarterly to weekly. This is a positive development that will help ensure
water quality standards are not contravened. Water quality-based effluent limitations
("WQBELs")at outfall 101 appear to have been determined based on compliance with water
quality standards in an unnamed tributary to the French Broad River rather than the river itself.
We support those limits. The Clean Water Act requires DEQ to promulgate permit limits
necessary to protect receiving waterbodies, and because the unnamed tributary is a water of the
United States, instituting WQBELs in the tributary is appropriate and required by law.
Other aspects of the permit need clarification or improvement. Duke pled guilty to
criminal violations of the Clean Water Act for its illegal seeps at the Asheville plant. DEQ
should not now legitimize those seeps by permitting them. DEQ should also add stricter limits
for all contaminants being discharged from outfalls 001 and 101 into the French Broad River.
Technologies are available to reduce contaminant loading to the river; DEQ should require Duke
to utilize them. Additional needed improvements and clarifications are discussed below.
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1) DEQ Should Make the Following Changes to the Draft Permit
• DEQ Should Not Permit Duke's Illegal Constructed Seeps
In 2015, Duke pled guilty to criminal violations of the Clean Water Act for illegal seeps
at the Asheville plant. See Joint Factual Statement, U.S. v. Duke Energy,No. 5:15-CR-62-H,No.
5:1 5-CR-67-H,No. 5:15-CR-68-H(E.D.N.C), ¶¶3-4. Outfall 101 purports to permit seeps from
toe drains on the 1964 ash pond. DEQ should not now seek to permit what Duke has
acknowledged was a criminal violation. Duke should continue excavating the 1964 pond and,
once complete, reassess how to alleviate these illegal discharges.
• DEQ Should Add Limits to Discharges from Outfalls 001 and 101
Outfalls 001 and 101 include no limits on some of the most harmful pollutants that Duke
can dump into the French Broad River. Neither of these outfalls includes limits on arsenic,
chromium, cadmium, copper, nitrogen, or lead. Several of the non-limited constituents were
identified as potentially problematic"constituents of interest" in Duke's Comprehensive Site
Assessment and other CAMA-required studies. The technology to appropriately limit those
discharges is unquestioningly available; DEQ has incorporated stricter limits in other Duke
r permits such as for the Sutton plant. DEQ must appropriately limit the discharge of these
constituents to protect aquatic populations and members of the public who recreate on and
consume fish from the French Broad River.
• DEQ Should Add Bromide Limits and Monitoring Requirements to Outfalls 001 and 101
Neither Outfall 001 nor 101 require Duke to monitor discharges of bromide, much less
set an appropriate limit. The permit proposes to add instream monitoring for bromide but sets no
discharge limit on the ash pond outfall and provides no express provision requiring development
of such a limit within the permit term, if needed, based upon monitoring results. When bromide
mixes with chlorine in treated drinking water supplies, it forms carcinogens known as
trihalomethanes ("THMs").1 Despite this known threat to downstream drinking water supplies,
it still does not appear that DEQ plans to conduct RPA to determine whether or what limits need
to be set related to bromide discharges in the Asheville permit. Longstanding Clean Water Act
regulations require agencies to establish water quality-based permit limits on bromide, if
necessary to meet narrative water quality standards, including standards to protect human
'EPA,Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
Category,80 Fed.Reg.67,838,67,872,67,886(Nov.3,2015)("Bromide discharges from steam electric power
plants can contribute to the formation of carcinogenic DBPs[disinfection byproducts,e g,trihalomethanes]in
public drinking water systems,"and"[s]tudies indicate that exposure to THMs[trihalomethanes]and other DBPs
from chlorinated water is associated with human bladder cancer.")
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health.2 Under the ELG rule,EPA reaffirmed that this requirement applies to bromide and
instructed permitting authorities to develop permit limits on a site-specific basis for bromide
when necessary to meet narrative water quality standards.3 North Carolina has put in place
exactly such narrative criteria for water quality to protect people from unsafe levels of pollutants
such as brominated trihalomethanes: "Human health standards: the concentration of toxic
substances shall not exceed the level necessary to protect human health through exposure routes
of fish tissue consumption,water consumption, or other route identified as appropriate for the
water body."4 DEQ must allow for a limit for bromide within this permit,based upon
monitoring, sufficient to protect everyone who drinks water downstream.
• DEO Should Add Boron, Sulfate, and Thallium Limits and Monitoring Requirements to
Outfall 001
Boron and sulfate are two key indicators of coal ash contamination and are often present
in discharges from coal ash ponds. Outfall 101 appropriately requires Duke to monitor
discharges of boron and sulfate but that obligation is missing for outfall 001. DEQ should
require Duke to monitor boron and sulfate discharges from outfall 001 and set appropriate limits
for both outfalls.
Outfall 001 also does not require monitoring, or set appropriate limits, for thallium
discharges. This may be a mistake as the Permit Fact Sheet suggests that thallium monitoring is
required for outfall 001. See Fact Sheet, 8. The Asheville plant has long dealt with problems
from thallium contamination. DEQ should add thallium to the list of constituents that must be
monitored for outfall 001 and set narrow limits on thallium discharges.
• DEQ Should Add a Mercury Limit to Outfall 101
The Permit Fact Sheet recognizes that compliance with the statewide mercury Total
Maximum Daily Load requires instituting a technology-based effluent limitation for mercury of
2 40 C.F.R. § 122.44(d)(1)(i)("[e]ach NPDES permit shall include conditions meeting the following requirements. .
. :any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards
under sections 301,304,306,307,318,and 405 of[the] CWA necessary to:(1)Achieve water quality standards
established under section 303 of the CWA,including State narrative criteria for water quality.").
3 80 Fed.Reg.at 67,886-87("[W]ater quality-based effluent limitations for steam electric power plant discharges
may be required under the regulations at 40 CFR 122.44(d)(1),where necessary to meet either numeric criteria(e.g.,
for bromide,TDS or conductivity)or narrative criteria in state water quality standards. . . .These narrative criteria
may be used to develop water quality-based effluent limitations on a site-specific basis for the discharge of
pollutants that impact drinking water sources,such as bromide.").
4 15A N.C.Admin.Code 2B .0208(a)(2).
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47 ng/l. See Fact Sheet, 4. Outfall 001 includes this limit but it is missing from outfall 101. To
comply with the mercury TMDL,DEQ should add a mercury limit of 47 ng/l to outfall 101.
• DEQ Should Reassess Duke's 316(a)Variance Using Updated Information
Cooling water discharges to Lake Julian increase water temperature in the lake so
drastically that they require a Clean Water Act Section 316(a)variance. To assess compliance
with the requirements of Section 316(a) "DWR reviewed the biological monitoring report that
was submitted to the DWQ in 2010." Fact Sheet, 4. That report is now quite dated. And it
appears that monitoring in the lake is"conducted triennially" so much more current information
should be available. Id. There is no reason to ignore this updated information. DEQ should .
reassess the variance in light of more recent data and disclose its findings to the public with an
appropriate opportunity for public comment. DEQ cannot continue to let Duke discharge
superheated water if Duke cannot show,with adequate and up-to-date information,that this heat
pollution will not harm the indigenous fish in Lake Julian.
• DEQ Should Provide Future Public Comment Opportunities on the Fish Tissue Sampling
Plan
Condition A.(13)requires Duke to submit a fish tissue monitoring plan within 180 days
of the effective date of the permit. We support development and implementation of a fish tissue
sampling plan and ask that DEQ commit to making the monitoring plan available for public
comment before incorporating it as an enforceable part of the permit.
• DEO Should Amend Permit Provisions Related to FGD Waste
Several of the permit provisions related to discharge of FGD waste (outfall 005)must be
revised. First,the draft permit drops monitoring requirements at outfall 005 for beryllium,
cadmium, chlorides,.chromium, copper,fluoride, lead,manganese,nickel, silver,thallium, and
zinc. The final permit should reinstate these monitoring requirements. The fact that FGD waste
is discharged to the Buncombe County sewer system only heightens the need to closely monitor
what is being discharged. Fact Sheet, 2. Buncombe County deserves to know what Duke is
discharging into its,treatment works.
The Permit Fact Sheet suggests these monitoring requirements were dropped to comply
with 40 C.F.R. Part 423. Fact Sheet, 7. Those federal regulations establish minimum effluent
limitations that must be met for all discharges of FGD waste at steam electric power plants.
Those limitations are a floor,not a ceiling. DEQ could require additional limitations and
certainly can and should continue to require Duke to monitor its discharge for certain pollutants,
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as it has done in the past. The monitoring requirements applicable to FGD discharge in the
current permit should be reinstated in the draft permit.
Second,DEQ proposes to decrease those monitoring requirements that remain from
monthly to quarterly. We are aware of no reason to reduce these requirements and relaxing
monitoring of FGD waste may run afoul of the Clean Water Act's anti-backsliding provision.
DEQ should continue to require the discharge to be monitored on a monthly basis.
Finally, outfall 005 lacks a limit on discharge of total suspended solids ("TSS"). The
provisions of the ELG Rule DEQ points to in justifying delay of the effective date of limits on
FGD discharge until January 31, 2021,require application of a TSS limit of 100 mg/1 per day
maximum,not to exceed 30 mg/1 averaged over 30 consecutive days. 40 C.F.R. §
423.13(g)(1)(ii). DEQ must add those limits to outfall 005.
•
• DEQ Should Add an Effective Trigger to Ensure Compliance with Turbidity Standards
The draft permit condition related to turbidity correctly states the limit as it relates to the
receiving stream: "The discharge from this facility shall not cause turbidity in the receiving
stream to exceed 50 NTU. If the instream turbidity exceeds 50 NTU due to natural background
conditions,the discharge cannot cause turbidity to increase in the receiving stream." Draft
Permit Condition A.(1)'note 5. This reflects the standard which provides, "if turbidity exceeds
these levels due to natural background conditions,the existing turbidity level shall not be
increased." 15A N.C.Admin. Code 2B .0211(21).However, it is unclear how the monitoring
will achieve compliance with the standard. Upstream and downstream instream monitoring for
turbidity is only triggered when the effluent measurement exceeds 50 NTU. Waiting until
effluent turbidity exceeds the limit for the French Broad River will not prevent the effluent from
causing instream violations when discharging less than 50 NTU.DEQ must add a trigger that can
effectively achieve compliance with the 50 NTU standard.
2) DEQ Should Clarify the Following Draft Permit Provisions
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• The Status of Dewatering at the Asheville Plant and Associated Limits are Unclear
DEQ should clarify the status of dewatering the 1964 ash basin. The companion SOC
reports that dewatering"is underway within the 1964 ash basin." SOC, 7. But the permit
conveys that"ash is currently being removed from the 1964 pond." Draft NPDES Permit, 1. We
assume that dewatering is necessary before excavation, but we also understood the 1964 basin to
be a retired unit. The SOC also suggests that additional "decanting" of wastewater is necessary
for the rim ditch system which sits atop the 1964 pond. SOC, 7. DEQ should clarify if its
references to decanting and dewatering apply to the entire 1964 ash pond or are specific to the
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rim ditch system.
The Permit Fact Sheet provides that the"effluent page for Outfall 001 was modified to
incorporate dewatering"but it is unclear how. Fact Sheet, 7. The limits for Outfall 001 in the
draft permit are similar to limits imposed under the current permit. Conditions applicable to
outfall 001 in the draft permit limit"lowering the liquid level in [the] coal ash pond"to "one foot
per day"but it is unclear how that is applicable. Draft NPDES Permit, 4. Our understanding is
there is no standing water in the 1964 ash pond,though there may be water in the lined rim ditch
system and duck pond. What does the"one foot per day"limitation apply to?
Similarly, conditions applicable to outfall 001 state that if"one of the pollutants (As, Se,
Hg,Ni, and Pb) reaches 85%of the allowable level during the decanting/dewatering, the facility
shall immediately discontinue discharge'of the wastewater." Id. For the mdst part,the draft
permit does not include limits on the referenced pollutants so it is unclear how the discharge
could reach"85%of the allowable level." DEQ should clarify this limitation.
If further dewatering of the 1964 ash pond is necessary,then DEQ should revise the draft
permit to incorporate more stringent limits and monitoring requirements appropriate for
discharges of wastewater that has been percolating through heavy metal-laden coal ash
potentially for decades. If the references to dewatering and decanting refer to the rim ditch
system and duck pond,then DEQ should clarify how this will occur. Does dewatering those
systems refer to simply emptying their contents into the French Broad River? That would
effectively turn the river into the treatment system,rather than the current rim ditch and duck
pond system. A better solution would be to discharge that wastewater into an appropriate
disposal system,potentially the Buncombe County sewer system for processing. If DEQ plans to
allow Duke to discharge rim ditch and duck pond waste streams directly into the river, DEQ
must assess and require application of appropriate technologies to reduce contaminant loading to
the river.
Finally, outfall 001 authorizes discharges from the ash pond treatment system and rim
ditch. Draft NPDES Permit, 3. DEQ should make clear that once the plant stops burning coal to
generate electricity there will be no further discharges from this outfall.
• The Fact Sheet References Outfall 102
•
The Permit Fact'Sheet references a reasonable potential analysis for outfall 102. Fact
Sheet, 3. The draft permit appears to lack an outfall 102 and we assume this is a mistake. DEQ
should delete the reference or explain what outfall 102 is.
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• Clean Water Act Section 316(b)Requirements Conflict
Section 316(b) of the Clean Water Act requires certain utilities to meet best technology
available standards for cooling water intake structures. The Cooling Water Intake Structure
Rule requires Duke Energy to submit information demonstrating how it will comply. The draft
permit states both that"the permittee shall submit all the materials required by the Rule with the
next renewal application" and that"the permittee shall submit all the materials required by the
316(b)Rule 180 days before the planned commencement of cooling water withdrawals for the
operation of the new unit." Draft NPDES Permit, 11. We assume the"new unit" is the new
natural gas unit. It is unclear how both permit provisions can be accurate. DEQ has provided no
reason why submission of information required by the Clean Water Act should be delayed until
the next NPDES permit renewal. DEQ should clarify that the provision requiring the materials
"180 days before the planned commencement of cooling water withdrawals for the operation of
the new unit"controls and delete the conflicting provision delaying submission of materials until
the next permit. Additionally,the fact that the coal units at Asheville will be retired does not
allow the facility to escape complying with the 316(b)Rule. The Rule also includes
requirements for"new facilities." See e.g., 40 C.F.R. § 125.81. To the extent use of the word
"retirement" in the Fact Sheet implies the facility may not have to comply with the Rule at all, it
should be deleted. See Fact Sheet, 6.
• Discharge Through Outfall 101 Is Not Yet Authorized
The draft permit states that discharges through outfall 101 are authorized"beginning on
the effective date of this permit." Draft NPDES Permit, 8. But according to the SOC, discharge
from outfall 101 must be pumped"back into the 1964 ash basin until the commencement of
decanting from the rim ditch system." SOC, 10. Our understanding is the rim ditch system has
not yet been decanted. The draft permit should clarify that discharges through outfall 101 are, in
fact, not authorized "beginning on the effective date of this permit"but only after the rim ditch is
decanted. .
3) DEQ Should Revise the Companion SpecialOrder By Consent
• Corrective Action for Seeps Should Not be Delayed Until 2020
As with SOCs issued for other Duke power plants, "decanting of wastewater...is
expected to eliminate or substantially reduce the seeps from the ash basins." SOC, 5. Previous
SOCs therefore triggered further corrective action for remaining seeps on completion of
decanting. The Asheville SOC admits that"[d]ecanting is largely complete at the 1964 basin,"
and fully complete at the 1982 basin, yet gives Duke a free pass on further corrective action to
eliminate seeps remaining after decanting until "the Asheville coal fired generation ceases, and
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no later than April 30, 2020." SOC, 7. There is no reason for this delay. Duke should be
required to begin assessing further corrective action as soon as decanting is complete. For the
1982 basin, further corrective action should be assessed immediately.
• Corrective Action Should Be Required For All Contaminated Seeps Not Eliminated
The SOC provides a process for seeps to be"dispositioned." SOC, 7. Dispositioned
• seeps are those that do not need further corrective action. SOC, 8. Two potential ways to
disposition seeps may ultimately prove problematic and DEQ should clarify that neither method
allows seeps contaminated by coal ash to escape corrective action.
First,previous SOCs allowed seeps to be dispositioned if"the seep is no longer impacted
by flow from any coal ash basin such that concentrations of all pollutants listed in [an attachment
to the SOC] meet state [water quality] criteria." EMC SOC WQ S 17-009, 9. That disposition
off-ramp was problematic because, as we explained in comments on that proposed SOC "there is
no exception under the CWA for unpermitted discharges of pollutants, even if such discharges
do not cause a water quality standard to be exceeded." Letter from Amelia Burnette, SELC,to
Bob Sledge,DWR(Feb. 14, 2018).
This SOC improves that language by omitting the refererlce to water-quality standards
and only allowing a seep to be dispositioned if"the seep is no longer impacted by flow from any -
coal ash basin as determined by the Director of DWR." SOC, 7. For this provision to comply
with the Clean Water Act DEQ should clarify that: 1) "flow" includes the addition of coal ash
contaminants to a seep whether by groundwater, surficial flow, or otherwise; and 2)that exercise
of the Director's"bestprofessional judgment"cannot turn on whether the addition of coal ash
contaminants leads to exceedances of water quality standards. A seep can only be dispositioned
under this criteria if the unpermitted addition of pollutants to a waterbody,,ceases entirely.
Second, as with other SOCs,this SOC allows a seep to be dispositioned if it does not
"flow to"waters of the United States or of the State. SOC, 7. To the extent"flow to"means via
a surface water connection;the SOC proposes to excuse seeps that appear to terminate before
connecting with a stream,wetland, or the river. Yet this would allow seeps that connect to
adjacent waterbodies via short groundwater hydrologic connections to continue.
The Clean Water Act is a strict liability statute prohibiting the discharge of any pollutant
to a water of the United States without a proper permit. 33 U.S.C. § 1311(a). Duke Energy
cannot evade the CWA by discharging pollutants to streams and rivers through short,
hydrological groundwater connections. EPA has stated repeatedly that the CWA applies to such
hydrologically-connected groundwater discharges. E.g., 66 Fed.Reg. 2960, 3015 (Jan. 12,2001)
("EPA is restating that the Agency interprets the Clean Water Act to apply to discharges of
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pollutants from a point source via ground water that has a direct hydrologic connection to surface
water."); accord 55 Fed. Reg. 47990, 47997 (Nov. 16, 1990) (announcing stormwater runoff
rules and explaining that discharges to groundwater are covered by the rule where there is a
hydrological connection between the groundwater and a nearby surface water body). In addition
to EPA, "Mlle majority of courts have held that groundwaters that are hydrologically connected
to surface waters are regulated waters of the United States, and that unpermitted discharges into
such groundwaters are prohibited under section 1311." Friends of Santa Fe Cty. v. LAC
Minerals, Inc., 892 F. Supp. 1333, 1358 (D.N.M. 1995) (citations omitted).
This principle continues to be affirmed by the courts, and has been applied to Duke's
facilities. See Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th
Cir. 2018) (finding discharge from point source to navigable water though direct hydrologic
groundwater connection subject to Clean Water Act). Yadkin Riverkeeper, Inc. v. Duke Energy
Carolinas, LLC, 141 F. Supp. 3d 428,445 (M.D.N.C. 2015) ("This Court agrees with the line of
cases affirming CWA jurisdiction over the discharge of pollutants to navigable surface waters
via hydrologically connected groundwater,which serves as a conduit between the point source
and the navigable waters.");see also Hawai'i Wildlife Fund v. Cly. of Maui,No. 15-17447, 2018
WL 650973, at *9 (9th Cir. Feb. 1, 2018) ("The County could not under the CWA build an ocean
outfall to dispose of pollutants directly into the Pacific Ocean without an NPDES permit. It
cannot do so indirectly either to avoid CWA liability. To hold otherwise would make a mockery
of the CWA's prohibitions"). DEQ possesses no authority to ignore polluted seeps that are
traveling short distances through groundwater and discharging into the adjacent rivers, lakes and
streams.
4) Conclusion
This draft permit modification is an improvement over previous permits particularly in
that it incorporates dewatering and excavation of the Duke's coal ash ponds to dry, lined storage.
However,portions of the permit remain inconsistent with North Carolina and federal law for the
reasons described above. We ask for the permit to be rewritten to correct the legal deficiencies
we identify,to protect water quality and the public interest. Additionally, we ask that DEQ
clarify that seeps cannot be dispositioned under the terms of the SOC unless discharges of coal
ash contaminants to waters of the United States and waters of the State are eliminated entirely,
and require Duke to begin assessing further corrective action for seeps once decanting is
complete.
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Sincerely,
Patrick Hunter
Southern Environmental Law Center
48 Patton Avenue, Suite 304
Asheville,NC 28801 .
828-258-2023
[e-mail]
On behalf of MountainTrue, Waterkeeper
Alliance, and the Sierra Club
cc: „ via email only
Karrie Jo-Shell, Engineer,EPA Region 4
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,