S Outhern Environmental Law Center
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S OUTHERN ENVIRONMENTAL LAW CENTER Telephone 919-967-1450 601 WEST ROSEMARY STREET, SUITE 220 Facsimile 919-929-9421 CHAPEL HILL, NC 27516-2356 March 26, 2013 Via CertifiedCerti iedMailMail-— Return ReceiptRecei tReRequesteduested The Hon. Bob Perciasepe Acting Administrator, u.s.U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Mail Code: 1101A Washington, DC 20460 Mr. John E. Skvarla, III Secretary, N.C. Department ofEnvironment and Natural Resources 1601 Mail Service Center Raleigh, NC 27699-1601 Mr. James E. Rogers Chairman, President, ChiefExecutive Officer, Duke Energy Carolinas LLC 550 South Tryon Street Charlotte, NC 28202 Mr. Terry L. Taylor General Manager, Riverbend Steam Station 175 Steam Plant Road Mt Holly, NC 28120 Notice of Intent To Sue FWPCA Section 505 - 33 U.S.C. §II 1365 RE: 60-Day Notice ofViolation by Duke Energy Carolinas LLC Riverbend Steam Station, NPDES Permit #¹ NC0004961 To Whom It May Concern: This letter is to notify the United States Environmental Protection Agency ("EPA"), the North Carolina Department ofEnvironment and Natural Resources ("DENR"), and Duke Energy Carolinas LLC ("Duke")("Duke") ofongoing violations ofthe Clean Water Act ("CW("CWA")A") at the Riverbend Steam Station coal-fired electricity generating plant ("Riverbend") in Mount Holly, NC, owned and operated by Duke. The Catawba Riverkeeper Foundation ("the Foundation"Foundation")) and its members are very concemcdconcerned about continuing serious violations ofthe Clean Water Act at Riverbend that have caused and continue to cause pollutants to enter North Carolina waters Charlottesvillecharlottesville ,.~ Chapel Hill •~ Atlanta •~ Asheville •~ BirminghamSirmlngham •~ Charlestoncharleston •~ Nashville •~ Richmond •~ Washington,washington, DCoc 10096100% recrcredrecycled paper Notice of Intent — Riverbend Steam Station ¹ NC0004961 March 26, 2013 and navigable waters, and cause unpermitted discharges to flow from the coal ash lagoons into Mountain Island Lake in the Catawba River, the drinking water source for hundreds ofthousands ofpeople including the residents ofthe Charlotte area. The substances illegally discharged at Riverbend include arsenic, cobalt, manganese, iron, barium, boron, strontium, and zinc. Many of these flows are bright orange from the contamination. Pursuant to 33 U.S.C. tj1365(b), the Foundation hereby gives notice of its intent to sue Duke for violations ofthe Clean Water Act unless, within 60 days of your receipt of this letter, Duke enters into a binding agreement to cease and remediate promptly all such violations. Location of Violations Riverbend Steam Station is located on Mountain Island Lake, which is formed by the impoundment ofthe Catawba River, in Mount Holly, Gaston County, North Carolina. The Riverbend site includes two adjacent coal ash lagoons of approximately 41 and 28 acres respectively, known as the Primary Cell and Secondary Cell, which contain millions of tons of coal ash. Both impoundments are unlined, and the ash is stored in a wet condition. The dikes impounding these lagoons are as much as 80 feet high. For years, the dikes at Riverbend have been given a High Hazard rating by DENR and EPA. The coal ash lagoons are directly on the banks of Mountain Island Lake, in the bend of the Catawba River. These coal ash lagoons and the discharges from them are directly upstream from the drinking water intakes for the Gastonia and Mount Holly water systems, and — closest of all to the ash lagoons and their unpermitted, contaminated discharges — the primary drinking water intake for the entire Charlotte-Mecklenburg water system. The dikes of the ash lagoons are discharging streams of contaminated water. Duke has constructed at least four distinct riprap-fined ditches, referred to as French drains, that channel these streams of contaminated water and convey them to the lake. The Foundation estimates that the four French drains, taken together, discharge on the order of five gallons per second into the lake, or over 157 million gallons per year. The main channels of these drains are between 0.5 and 2 meters wide, and especially with a low lake level, the channels branch out into many smaller channels near the lake. These French drain discharges flow directly into Mountain Island Lake and they are not authorized by Duke's NPDES discharge permit for Riverbend. In addition, at least ten more unpermitted seeps — on the west side ofthe Primary Cell, the north side ofthe Secondary Cell, and the east side of both ash lagoons — discharge from the ash lagoons and flow over the surface ofthe land into the Catawba River and Mountain Island Lake. All of these unpermitted point source discharges to waters ofthe United States violate the CWA. The GPS coordinates of the French drain discharges and seeps we have been able to identify so far are listed below and are also identified on the enclosed satellite image. The exact confluence with the lake varies with the water level in the lake. In some cases there are multiple point source seep discharges to the Lake at one location. Notice of Intent — Riverbend Steam Station ¹ NC0004961 March 26, 2013 DlschaDischareee TTypee GPS Coordinates French drain confluence with lake 35.365541,-80.966822 French drain confluence with lake 35.371393,-80.962358 French drain confluence with lake 35.36701,-80.956976 French drain confluence with lake 35.367566,-80.955606 SeepageSee a e field 35.365578,-80.966784 Point seepsee 35.365462,-80.96685135.365462 -80.966851 SeepaJ?;eSee a e field 35.366335,-80.967236 SeepageSee a e field 35.371236,-80.963265 Point seeseep 35.370898,-80.962745 SeepaJ?;eSee a e field 35.367909,-80.958617 Point seepsee 35.367972,-80.958773 Point seepsee 35.367972,-80.958773 Point seeseep 35.367972,-80.958773 In addition, the unlined lagoons are leaching coal ash solids, residuals, and other contaminants into thc groundwater at the Riverbend site. This leaching into the groundwater constitutes a separate violation ofthe CWCWAA because it violates a provision ofthe Riverbend NPDES permit prohibiting removed substances and pollutants from entering waters of the State, which includes groundwater. Moreover, the contaminated groundwater at the site flows directly into Mountain Island Lake. The groundwater is contaminated not only by the ash lagoons, but also by the old ash storage area at the southwest cornercomer ofthe Primary Cell. This hydrologically connected discharge from the ash lagoons and old ash storage area to surface waters ofthe United States constitutes an additional unpermitted discharge in violation of the CWA.CWA. It is also a further violation ofthe NPDES permit's removed substances provision with respect to the contaminants discharging from the ash lagoons. We are informed that Duke plans to retire Riverbend in AprilApri12013,2013, but has not submitted a closure plan for the ash lagoons to DENR in violation ofits NPDES permit, which requires the ash pond closure plan to be submitted one year prior to plant closure. As long as the coal ash remains in these leaking, unlined lagoons, it will continue to discharge from the bottom and sides ofthe lagoons in violation ofthe CWCWAA as described in this letter. DescriptionDescri tion ofViolations I. Unauthorized Surface Discharges to Waters ofthe United States Section 301(a) ofthe CWA, 33 U.S.C. §eI 1311311(a),1(a), prohibits the discharge ofpollutants fromI'rom a point source to waters ofthe United States except in compliance with, among other conditions, a National Pollutant Discharge Elimination System ("NPDES") permit issued — pursuant to §II 402 of the CWA, 33 U.S.C.U,S.C. II§ 1342. Each violation ofofthethe permit - and each discharge that is not authorized by the permit —- is a violation ofthe Clean Water Act. The CWA defines a "point source" as "any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete 3 Notice of Intent — Riverbend Steam Station ¹ NC0004961 March 26, 2013 fissure, [or] container... from which pollutants are or may be discharged." 33 U.S.C. $ 1362(14) (emphasis added). Under this broad definition, the discharge of pollutants from mining pits, slurry ponds, sediment basins, and mining leachate collection systems have been held to be point sources. Eg., US. v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir. 1979) ("[W]hether from a fissure in the dirt berm or overflow ofa wall, the escape of liquid fiom the confined system is from a point source."); Consolidation Coal Co. v. Costle, 604 F.2d 239, 249- 50 (4th Cir. 1979) (finding regulation of "discharges &om coal preparation plant associated areas," which in turn included slurry ponds, drainage ponds, and coal refuse piles, was within CWA definition of point source), rev 'd on other grounds, 449 U.S. 64 (1980). In addition, a "point source need not be the original source ofthe pollutant; it need only convey the pollutant to 'navigable waters.'" S. Fla. Water Mgmt. Dist. V. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004); accord WW. Va. Highlands Conservancy, 625 F.3d at 168 (permits are required for discharges from point sources that "merely convey pollutants to navigable waters"). Thus, ditches and channels that convey pollutants but are themselves not the original source constitute point sources. This includes unintentional conveyance ofpollutants, for example, through natural-foimednatural-formed ditches, gullies, or fissures. See Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45 (5th Cir. 1980) (discharge fromRom mining pits and spoil piles through naturally formed ditches caused by gravity flow at a coal mining site are point sources); Earth Sciences, 599 F.2d 368 (holding unintentional discharges ofpollutants from a mine system designed to catch runoff from gold leaching site during periods ofexcess melting met the statutory definition ofa point source); N C. Shellfish Growers Ass 'n v. Holly Ridge Assocs., LLC, 278 F. Supp. 2d 654, 679 (E.D.N.C. 2003) ("Notwithstanding("Notwithstanding that it may result from such natural phenomena as rainfall and gravity, the surface run-off ofcontaminated waters, once channeled or collected, constitutes discharge by a point source.source.");"); O'eary0 'Leary v.