February 13, 2018 VIA First Class U.S. Mail and Electronic Mail Mr. Sergei Chernikov NCDEQ/Division of Water Resources Water Quality Permitting Section - NPDES 1617 Mail Service Center Raleigh, NC 27699-1617 [email protected] [email protected]
Re: Draft NPDES Major Modification– Marshall Steam Station, #NC0004987
Dear Mr. Chernikov:
On behalf of the Catawba Riverkeeper Foundation, Inc. (the “Foundation”), the Sierra Club, and the Waterkeeper Alliance (together the “conservation groups”), we are providing these comments on the draft major modification of the National Pollutant Discharge Elimination System (“NPDES”) permit noticed for public comment by the North Carolina Department of Environmental Quality (“DEQ”) Division of Water Resources for Duke Energy’s Marshall Steam Station (“Marshall”), located near Terrell, North Carolina. The conservation groups challenged the existing permit in the Office of Administrative Hearings (“OAH”) in October 2016 (16 EHR 09913); the challenge is stayed pending expected resolution through this modification.
DEQ’s proposed modifications address major flaws in the existing Marshall permit that are subject to the pending challenge in OAH, and these are changes we support. Our comments will address these needed changes.
Although this is a positive step, DEQ also proposes to grant a new set of changes for Duke Energy that, unfortunately, introduce new errors. Among the most problematic: DEQ caves to Duke Energy’s unjustified request to extend its date to comply with federal effluent limitation guidelines (“ELGs”), which means Duke Energy will dump heavy metals in Lake Norman for longer; DEQ attempts to bypass ordinary modification procedures for future, hypothetical law changes; and DEQ eliminates a condition requiring “physical/chemical treatment” of wastewater during decommissioning of the ash pond, supposedly for faster dewatering, but does not specify how water quality will be protected.
Lastly, we flag additional problems, most of which were raised in our 2015 and 2016 comments, that DEQ should not miss the opportunity to fix here. 1) We Support the Elimination of Conditions Designating Seeps as Effluent Channels
DEQ previously permitted two non-engineered seeps at the Marshall Steam Station as effluent channels, purporting to authorize these seeps to carry wastewater that had escaped from the unlined coal ash pond. 2016 Permit, § A(30) (outfalls 101 and 102). Because these seeps are both jurisdictional surface water tributaries and are influenced by natural ground water, this approach could not be implemented consistent with federal and state law. In a shift we support, the major modification proposes to eliminate seeps 101 and 102 from the permit and abandons this approach to non-engineered seeps. Alongside the elimination of seep permitting from the Marshall permit, DEQ is proposing a Special Order by Consent as a new mechanism to oversee non-engineered seeps at Duke Energy’s Marshall Steam Station for an interim period while accelerated decanting occurs. We generally support this approach, which appropriately leaves to the wayside DEQ’s prior attempt to legitimize the Marshall leaks by permitting them. However, we have specific concerns with particular terms of the Special Order by Consent – for example, the process to “disposition” the seeps at Marshall. These concerns are laid out in separate comments on the SOC. For purposes of this major modification, we support removing the Marshall seeps as effluent channels from the permit, and view this modification as necessary to comply with federal and state law.
2) We Support the Addition of a Map and Compliance Boundary Condition Enforcing Groundwater Rules at the Shoreline of Lake Norman.
North Carolina implements some parts of its Groundwater Protection Rule (“2L Rule”) through permits issued to industrial facilities under the solid waste disposal statutes or the NPDES permit program. See 15A N.C. Admin. Code 2L .0106(c) (defining permitted as having a permit pursuant to N.C. Gen. Stat. § 143-215.1 or § 130A-294). The 2L Rule, as we have previously commented, directs that “[t]he [compliance] boundary shall be established by the Director, or his designee at the time of permit issuance.” 15A N.C. Admin. Code 2L .0107(c). The “compliance boundary” is a “boundary around a disposal system at and beyond which groundwater quality standards may not be exceeded. ” 15A N.C. Admin. Code 2L .0102(3).
The absence of a map designating a compliance boundary at the Marshall facility was a critical omission in the Marshall permit. Although the Marshall permit neglected to provide such a map, prior maps approved by DEQ had embedded in them another flaw: the compliance boundary at Marshall extended underneath Lake Norman, the impermissible effect of which was to allow contaminated groundwater to flow from beneath the ash pond into Lake Norman. State law requires the compliance boundary to stop at the shoreline, and the Clean Water Act does not allow Duke Energy to co-opt Lake Norman as part of its waste disposal system. The major modification adds a groundwater compliance boundary map that no longer extends the point of compliance into Lake Norman. We support this change and the addition of related condition A.(32.) as important steps toward enforcing the 2L Rule at the Marshall Steam Station.
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3) Postponing Compliance with Federal ELGs Is Unjustified and Unlawful
DEQ proposes to give Duke Energy extra time to meet the minimum standards of federal law, effectively allowing it to continue discharging polluted wastewater into Lake Norman longer than is justified. DEQ’s modification would postpone, from 2021 to 2023, the dates to stop discharging of bottom ash transport water and to meet tighter limits for flue gas desulphurization (“FGD”) wastewater. This is based solely on the Trump administration’s efforts to relax the federal ELGs for this pollution at some hypothetical point in the future. Indeed, DEQ’s short explanation says the dates are modified for precisely this reason: “due to the proposed EPA rulemaking that might result in different deadlines and/or BAT determinations.” Fact Sheet at page 3.
At the outset, EPA’s postponement rule is itself subject to ongoing legal challenges.1 Even if the postponement ends up withstanding legal scrutiny, nothing in the rule revision provides a basis for modifying the Marshall permit ELG implementation dates. EPA’s postponement (codified at 40 CFR 423.11, 423.13, and 423.16) simply authorizes NPDES permitting agencies, starting in September 2017, to require elimination of bottom ash discharge as soon as November 1, 2020 as opposed to November 1, 2018, but no later than December 31, 2023. That new rule does not require DEQ to reopen its prior compliance date determination and offers no particular basis for delaying compliance with bottom ash or FGD effluent limitations at Marshall. Of particular relevance here, the revised rule also does not change the factors set forth in 40 C.F.R. § 423.11(t) that DEQ is required to consider when establishing an “as soon as possible” date for compliance. The only change related to compliance dates is the two-year postponement of the beginning of the compliance period, so that compliance with bottom ash and FGD effluent limitations must now occur “as soon as possible” between 2020 and 2023, instead of between 2018 and 2023 in the 2015 ELG Rule. The compliance date of 2021 in the existing Marshall permit is within the later implementation period under the revised rule. EPA has emphasized that the standards for which it delayed the compliance deadlines remain in effect, despite the agency’s ongoing reconsideration process.2 The revised rule itself provides no basis for DEQ to revisit its original compliance date determination summarized in the 2016 Fact Sheet for the Marshall permit.
In addition, there is no indication that Duke Energy will have any actual impediments to meeting ELGs for bottom ash and FGD waste by the current deadline of 2021. Neither Duke Energy nor DEQ even pretend there are any technological or logistical reasons for the delay.
1 See, e.g., http://www.biologicaldiversity.org/programs/environmental_health/pdfs/ELG-Delay-Sec-7- complaint.pdf; see also Clean Water Action, Sierra Club, Waterkeeper Alliance et al. v. E. Scott Pruitt, Administrator, U.S. Environmental Protection Agency, et al. (D.D.C. 1:17-cv-00817-KBJ, pending mot. to amend complaint).
2 See 82 Fed. Reg. at 43,496 (“This maintains the 2015 Rule as a whole at this time, with the only change being to postpone specific compliance deadlines for two wastestreams.”); see also U.S. EPA, Response to Comment Document, EPA-HQ-OW-2009-0819, SE06669, at 8 (“The only thing the Postponement Rule does is revise the 2015 ELG Rule’s new, more stringent compliance dates for two wastestreams discharged from existing sources (bottom ash transport water and flue gas desulfurization wastewater). Otherwise, it leaves the Rule unchanged.”)
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Nor could they – the compliance dates in the existing permit were already overly generous, as we commented on the existing permit. Moreover, a technical assessment of the feasibility of ELG compliance at the Marshall plant prepared by environmental, chemical, and mechanical engineering expert Dr. Ranajit Sahu, attached hereto, demonstrates that zero discharge of bottom ash wastewater can be achieved by November 2020 and that compliance with the new FGD wastewater limits also can be achieved by November 2020—both sooner than the January 31, 2021 compliance dates in the existing permit.
The ELG implementation dates in the existing permit give Duke Energy several years of delay to comply with the ELGs for bottom ash transport water and FGD wastewater. When the permit issued in 2016, the ELG then required the new limitations to start “as soon as possible beginning November 1, 2018, but no later than December 21, 2023.” 40 C.F.R. § 423.12(h), (k), (g) (emphasis added). DEQ then allowed Duke Energy, at its request, to continue dumping toxic bottom ash transport and FGD wastewater into Lake Norman for an additional two years and three months beyond November 2018, or until January 31, 2021. Although the EPA left to state permitting authorities the responsibility of determining when the new limits will apply, EPA presumed that the “as soon as possible” date is November 1, 2018, “unless the permitting authority establishes a later date, after receiving information from the discharger.” 40 C.F.R. § 423.11(t). Any determination that a later date is appropriate must be well-documented, independently justified, and reflect consideration, at a minimum, of the specific factors set forth in EPA’s regulations. See id. In allowing delayed compliance the first time, rather than exercising any independent judgment or attempting to verify any of the information submitted by Duke Energy, DEQ simply “concurred” with the pithy technical justification supplied by Duke Energy. This too fell short of the well-documented justification required by EPA regulation. But now DEQ manages to make the situation worse by delaying the compliance date by years more – this time without even the veneer of legal justification under federal or state law. Allowing unnecessary delay in complying with federal ELGs without any valid justification would be arbitrary and capricious.
Duke Energy’s earlier justification demonstrated, if anything, that compliance was easily obtainable by 2021, and Duke Energy has supplied no justification casting doubt on the achievability of these dates. Based upon the technology that Duke Energy has already promised is feasible to implement for zero discharge of bottom ash transport water, the dates in the current permit would apply as a matter of best professional judgment (“BPJ”), even in the complete absence of an ELG dictating a date. Furthermore, the hypothetical possibility that federal law might relax does not provide Duke Energy or DEQ a legal basis to delay implementation of presently achievable, best available technology. Allowing Duke Energy to keep discharging pollution when technology is readily available to reduce and eliminate the discharges is indefensible and unlawful. DEQ must reverse course and reject Duke Energy’s unjustified request for delay.
This is not the first place a U.S. utility has tried to game ELG compliance dates. We note that Michigan DEQ recently entertained a similar request from DTE Electric Company to delay compliance with ELGs for bottom ash transport water at its DECO-Belle River plant. As here, this request was simply based upon the EPA rule and reconsideration. Michigan’s DEQ
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ultimately rejected the request, which like this one, had no acceptable technical or legal justification. The fact sheet and denial related to that request are attached.
Finally, relaxing the compliance deadline for meeting effluent limitations for bottom ash transport water and FGD waste also runs afoul of the anti-backsliding provisions of the CWA. 33 U.S.C. § 1342(0); 40 C.F.R. § 122.44(l1)(1). “[W]hen a permit is renewed or reissued, [ ] effluent limitations, standards or conditions must be at least as stringent as the final effluent limitations, standards, or conditions in the previous permit.” 40 C.F.R. § 122.44(l)(1). Permits can be modified when new ELGs are promulgated but only if “EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based.” 40 C.F.R. § 122.62(a)(3)(i)(B). The previous compliance date was based on the portion of the ELGs requiring use of technology as soon as possible but no later than 2023. As explained above, that portion of the ELG has not changed. The only change is that the earliest date for compliance has been delayed from 2018 to 2020, which is inapposite here, as compliance with ELGs at the Marshall station was not based on that portion of the regulation.
4) DEQ Cannot Bypass Modification Procedures Based Upon Hypothetical Amendments to the Coal Ash Management Act.
The modification proposes to add a condition that correctly notes that “by December 31, 2019 the facility shall convert to the disposal of dry bottom ash, as defined in CAMA.” See Conditions A.(2.) and A. (3.). However, DEQ also has added language that purports to allow an automatic modification of the date for dry bottom ash disposal: “if the House Bill is amended, in such case the new date will be substituted without re-opening of the permit.” DEQ’s regulations require all permit modifications to go through “the same public notice and other procedural requirements as the issuance of permits,” except for limited categories. 15A N.C. Admin. Code 02H .0114(b). An amendment in state law by the legislature is not one of the categories that allows DEQ to bypass ordinary notice and comment procedures that govern its NPDES permitting program. The attempt to bypass the ordinary procedural requirements for a permit modification, by bootstrapping in as-of-yet changes in state law, must be eliminated, and in any event, has no lawful basis.
5) DEQ Does Not Provide Any Legitimate Basis for Removing the Condition Requiring “Physical/Chemical Treatment” of Ash Pond Effluent During Dewatering or Decanting.
DEQ’s modification removes the following condition that, on its face, requires physical- chemical treatment of ash pond wastewater during ash pond decommissioning:
When the facility commences the ash pond/ponds decommissioning process, the facility shall treat the wastewater discharged from the ash pond/ponds by the physical-chemical treatment facilities.
Marshall Permit, Conditions A.(2.) and A.(3.).
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EPA’s comments supported adding this condition in the existing permit,3 and Duke Energy does not request this modification in either August or December 2017 requests. For its part, DEQ’s fact sheet yields little insight into this deletion, stating only the requirement is eliminated to “meet accelerated closure requirements in the SOC.” Fact Sheet at 6. While not explained, we understand “SOC” to refer to a proposed “Special Order by Consent” presently out for public comment, which proposes to accelerate decanting of the ash pond at the Marshall ash pond as a step toward eliminating non-engineered seeps. DEQ provides no explanation about how, in the absence of the above condition, it will assure water quality is protected in Lake Norman, which will be crucial during any accelerated decanting. It does not appear DEQ has revisited its WQBELs in light of accelerated closure activities. DEQ must make sure the WQBELs derived from the Reasonable Potential Analysis (RPA) conducted for outfall 002 are protective in light of the pace of closure activities being proposed in the SOC. For example, DEQ notes in its public notice that “total arsenic is the water quality limited parameter.”4 DEQ must assure that effluent limitations for arsenic are stringent enough to achieve water quality in this segment of Lake Norman, even if this means imposing limitations “more stringent than minimum treatment requirements.” 5A N.C. Admin. Code 02B .0404 (addressing effluent limitations in water quality limited segments). In addition, DEQ cannot relax any technology- based limitations imposed from the last permit without violating the CWA’s anti-backsliding provisions. 33 U.S.C. § 1342(0); 40 C.F.R. § 122.44(l)(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 . . . .”). In the absence of an adequate record explaining the removal of this condition and additional assurances and measures that will be taken to assure water quality standards are protected during accelerated closure activities, DEQ must retain the condition.
6) DEQ Must Impose Sufficiently Stringent Effluent Limitations.
NPDES permits control pollution by setting (1) limits based on the technology available to treat pollutants (“technology based effluent limits”) and (2) any additional limits necessary to protect water quality (“water quality-based effluent limits”) on the wastewater dischargers. 33 U.S.C. §§ 1311(b), 1314(b); 40 C.F.R. § 122.44(a)(1), (d). An NPDES permit must assure compliance with all statutory and regulatory requirements, including state water quality standards. 33 U.S.C. § 1342(a)(1)(A); 40 C.F.R. § 122.43(a); 15A N.C. Admin. Code 2H .0118.
• New Outfall 005 will discharge from a new lined retention basin that, according to Duke Energy, will handle wastewater flows currently directed to the unlined ash pond. The permit limits for this outfall must reflect, at a minimum, technology-based effluent limitations required for the various waste streams being routed to the lined retention basin. This includes coal pile runoff, and Duke Energy specifically requested that the ELG limits for TSS from coal pile runoff be imposed from the lined retention basin. The TSS limit must be tightened to 50.0 mg/L daily maximum, consistent with that limit in Outfall 002. See 40 CFR § 423.12.
3 See EPA Comment letter to DEQ Regarding Marshall permit (Aug. 19, 2016) (on file with DEQ).
4 https://deq.nc.gov/news/events/public-comment-period-opens-marshall-steam-station-permit-nc0004987
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• Outfall 002 - Turbidity: the conditions related to net turbidity from the ash pond must be revised to achieve water quality standards in the receiving stream. Note 5 to Conditions A.(2.) (normal) and A.(3.) (dewatering) states that “net turbidity shall not exceed 50 NTU . . . measured by the difference between the effluent turbidity and the background turbidity.” First, because Lake Norman is an impounded portion of the Catawba River, the applicable standard is 25 NTU. 15A N.C. Admin. Code 2B .0211(21). Second, allowing a net increase over background conditions in the effluent in an amount equivalent to the maximum allowed in the standard does not assure water quality standards will be met in the Catawba River. This term must be revised to reflect water quality in the receiving stream, which DEQ did in the Sutton NPDES permit (and indicated it would do in the Cliffside permit5): “The discharge from this facility shall not cause turbidity in the receiving stream to exceed 50 NTU. If the instream turbidity exceeds 50 NTU due to natural background conditions, the discharge cannot cause turbidity to increase in the receiving stream.” NPDES Permit Modification NC0001422 (Dec. 7, 2015) Condition A.(2) note 5. 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).
• Outfall 002 - Arsenic: As stated above, DEQ must assure that effluent limitations for arsenic are stringent enough to achieve water quality in this segment of Lake Norman, which is a drinking water supply reservoir. The modified permit continues to allow from Outfall 002 (dewatering) a daily maximum arsenic discharge of 11,121 µg/L – which is 1,112 times higher than the surface water quality standard applicable to a water supply. 15A NCAC 02B .0216(3)(h)(ii) (setting arsenic at 10 µg/L). The explanation of RPA provided in the 2018 fact sheet for the existing WQBELs lists the freshwater aquatic life standards for arsenic, while simply noting it is “necessary to evaluate” the more stringent arsenic standard for human health. 2018 Fact Sheet at 7, table 1, n.3. Any WQBEL must be sufficiently stringent to protect human health, including compliance with WS-IV water supply standards. 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. As we raised in our previous comments, allowing such a high discharge of arsenic into a public drinking water supply that also receives heavy recreational use is risky. Riverbend’s more protective limit of 14.5 µg/L daily maximum arsenic discharge, and technologies used to achieve that limit, like adding filtration, demonstrate that technologies are available to more limit arsenic discharges during dewatering. Those technologies and stronger effluent limits must be applied at Marshall at the outset to protect water quality in Lake Norman.
• Outfall 002 – Monitoring: As we stated previously, the monitoring requirements for ash pond effluent should be expanded to include constituents known to discharge through coal ash effluent. At a minimum, the constituents identified by the DWR in the SOC to
5 http://edocs.deq.nc.gov/WaterResources/DocView.aspx?dbid=0&id=489038&page=1&cr=1
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be monitored in ash pond seep discharges from Marshall (Attachment B), should also be monitored in the main outfall of the ash pond. The omission of cadmium and lead, in particular, is striking because Duke has identified those contaminants as associated with the Marshall coal ash pond and exceeding surface water standards in Lake Norman. Duke Energy, Marshall Corrective Action Plan Part II, 21. Monitoring for other constituents of interest identified in Duke’s Marshall Corrective Action Plan – including but not limited to boron, chromium, cobalt, manganese, nickel and sulfate – should also be monitored. During dewatering, it is particularly critical to require monitoring for a sufficient list of contaminants to make sure any violations of water quality standards (narrative and numeric) are detected, even if DEQ is not presently anticipating those violations. In other words, DEQ needs to capture sufficiently broad information about the effluent during decanting and dewatering to make sure additional steps can be taken in time to protect water quality and public health in Lake Norman.
7) The Permit Modification Should Address Flaws in the Original Permit:
In proposing a modified permit, DEQ has allowed several problems to persist. Many of these were raised in our comments submitted in 2016 and 2015, and we specifically incorporate those comments here. Here, we touch on ongoing problems that DEQ should use this modification to address:
• The Modified Permit Must Set a Limit for Bromide Discharges: The existing permit added a limit to monitor bromide but set no discharge limit on the ash pond outfall. When bromide mixes with chlorine in treated drinking water supplies, it forms carcinogens known as trihalomethanes (“THMs”).6 As Duke Energy has admitted in sworn testimony, the company’s discharges of bromide from the Marshall coal ash basin in recent years has caused trihalomethanes to form in downstream drinking water supplies, including the drinking water supply for the City of Charlotte.7 Duke Energy made similar admissions as part of its criminal plea agreement.8 Downstream of Marshall, Duke Energy has identified the following at-risk drinking water supplies that may be affected by its bromide discharges: Mooresville, Lincoln County, Charlotte- Mecklenburg, Gastonia, Mount Holly, and Belmont. 9 These water supplies collectively
6 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.”)
7 Dep. Tr. of Duke Energy (via Corporate Designee Zachary Hall) at 47:14-48:15 (Feb. 10, 2017) (“Q. Okay. And have discharges from Duke Energy’s ash basin at Marshall contributed to the increases in trihalomethanes at the Charlotte intake? A. They have.”).
8 Joint Factual Statement, United States of America v. Duke Energy, No. 5:15-CR-62-H at 52-53 (May 14, 2015).
9 Duke Energy Compliance Officers’ Report at 18-19, United States v. Duke Energy (E.D.N.C. Apr. 29, 2016).
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serve over 1.2 million people.10 The risk presented by bromide discharges in the Catawba River is not merely hypothetical; in 2015, bromide discharges caused THMs to form in treated drinking water above the Safe Drinking Water Act regulatory level of 0.080 µg/L in water supplies downstream of Marshall.
Despite this known threat to downstream drinking water supplies, it still does not appear that DEQ has conducted RPA to determine what limits need to be set for bromide discharges in the Marshall 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 health.11 Under the ELG rule, EPA reaffirmed that this established 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.12 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.”13 DEQ must set limits for bromide in the permit sufficient to protect everyone who drinks water downstream, particularly during dewatering and decanting.
• The Modified Permit Overlooks Discharges of Wastewater Through Hydrologically Connected Groundwater: As explained in prior comments, the CWA is a strict liability statute prohibiting the discharge of any pollutant to a water of the United States without a permit. 33 U.S.C. § 1311(a). The coal ash pond at Marshall is estimated to discharge at least 234,244 gallons per day of contaminated wastewater to Lake Norman – over 85 million gallons annually – through groundwater via a direct hydrologic connection to the lake. Duke Energy, Appendix D to the Marshall Corrective Action Plan Part II, 3. That discharge is not included in the current permit. 33 U.S.C. § 1342(o); 40 C.F.R. § 122.44(l)(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 . . . .”). DEQ must incorporate the
10 EPA, Safe Drinking Water Information System (SDWIS) (last visited Apr. 28, 2017), available at https://www3.epa.gov/enviro/facts/sdwis/search.html.
11 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.”).
12 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.”).
13 15A N.C. Admin. Code 2B .0208(a)(2).
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hydrologically connected discharge into its RPA to determine if there is a reasonable potential to violate or contribute to a violation of surface water quality standards. Ultimately, DEQ should require Duke Energy to stop the discharge of contaminated wastewater to Lake Norman via hydrologically connected groundwater by removing the source of contamination – Duke Energy’s coal ash.
• The Permit Continues to Violate the Removed Substances Provision: As we articulated in our prior comments, the approach set forth by DEQ violates the existing Removed Substances provision (Standard Conditions, Part II.C.6) of the permit, providing: “Solids, sludges . . . or other pollutants removed in the course of treatment or control of wastewaters shall be utilized/disposed of . . . in a manner such as to prevent any pollutant from such materials from entering waters of the State or navigable waters of the United States.” (emphasis added). Coal ash at Marshall – the “removed substance” – is sitting as much as 70 feet below the groundwater table. Duke Energy, Comprehensive Site Assessment Figures. Groundwater is a water of the State. N.C. Gen. Stat. § 143-212(6). Coal ash is a “pollutant” regulated under the Clean Water Act. See supra. The Department must require Duke Energy to remove the “removed substances” from the waters of the State and should not authorize the ongoing violation of an existing permit term by purporting to issue a new permit with the same terms while the facility is in violation of the existing permit.
• The Permit Continues to Violate Requirements Applicable to Critical Areas: The Marshall plant is located in a WS-IV “critical area.” See 2018 Draft Modification Permit Fact Sheet, 1.14 Waters within a critical area “shall meet the Maximum Contaminant Level concentrations considered safe for drinking, culinary, or food-processing purposes that are specified in the national drinking water regulations and in the North Carolina Rules Governing Public Water Supplies.” 15A N.C. Admin. Code 2B .0216(2). “Sources of water pollution that preclude any of these uses on either a short-term or long- term basis shall be considered to be violating a water quality standard.” Id. Based on samples collected by Duke Energy, it appears that surface water around the Marshall plant continues to violate this standard. Unless the “source[] of water pollution” is removed, the Marshall plant may continue to violate this standard, preventing it from being permitted in compliance with North Carolina law.
8) Conclusion
The draft permit modification is inconsistent with the requirements of North Carolina and federal law for the reasons described above. We ask for the permit modification to be withdrawn and for the permit to be rewritten to correct the legal deficiencies we identify, to protect water quality and the public interest. We also request a hearing so that the public has a sufficient opportunity to weigh in on these important issues.
14 “Critical area means the area adjacent to a water supply intake or reservoir where risk associated with pollution is greater than from the remaining portions of the watershed.” 15A N.C. Admin. Code 2B .0202(20).
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Sincerely,
Amelia Y. Burnette Austin DJ Gerken Patrick Hunter Thomas Lodwick Southern Environmental Law Center 48 Patton Avenue, Suite 304 Asheville, NC 28801 828-258-2023 [email protected] [email protected] [email protected] [email protected]
Counsel for
Catawba Riverkeeper Foundation, Inc. Sam Perkins, Catawba Riverkeeper® 715 N Church St, Suite 120 Charlotte, NC 28202 [email protected]
Waterkeeper Alliance Donna Lisenby Clean & Safe Energy Campaign Manager [email protected]
Sierra Club Bridget Lee 50 F Street, NW, 8th Floor Washington, DC 20001 [email protected] cc: Karrie Jo-Shell, Engineer, EPA Region 4 (via email only)
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SELC Comments on Marshall NPDES Permit Modification #NC0004987 – February 13, 2018
ATTACHMENTS
1. Technical Assessment of Feasibility of Timely Compliance with the ELG Rule Requirements for Bottom Ash Transport Water and FGD Wastewater at the Marshall Power Plant: Expert Report by Dr. Ranajit (Ron) Sahu
2. Michigan DEQ’s Decision on DECO-Belle River Permit Modification Request & Fact Sheet.
SELC Comments on Marshall NPDES Permit Modification #NC0004987 – February 13, 2018
ATTACHMENT 1
Technical Assessment of Feasibility of Timely Compliance with the ELG Rule Requirements for Bottom Ash Transport Water and FGD Wastewater at the Marshall Power Plant: Expert Report by Dr. Ranajit (Ron) Sahu
Technical Assessment of Feasibility of Timely Compliance with the ELG Rule Requirements for Bottom Ash Transport Water and FGD Wastewater at the Marshall Power Plant:
Expert Report by Dr. Ranajit (Ron) Sahu
______
February 12, 2018
TABLE OF CONTENTS
1. INTRODUCTION ...... 2 2. BOTTOM ASH HANDLING AND FGD WASTEWATER TREATMENT AT THE MARSHALL PLANT ...... 2 3. EXISTING PERMIT AND PROPOSED REVISED DATES FOR COMPLIANCE WITH ELGS FOR BOTTOM ASH TRANSPORT WATER AND FGD WASTEWATER AT THE MARSHALL PLANT ...... 4 4. TECHNOLOGY CHOICES FOR BATW ELG COMPLIANCE ...... 5 5. TECHNOLOGY CHOICES FOR FGD ELG COMPLIANCE ...... 8 6. DUKE ENERGY’S PLANNING TO COMPLY WITH THE ELGS ...... 11 7. CRITIQUE OF DUKE’S PROPOSED COMPLIANCE SCHEDULE ...... 12 8. COMPARISON OF DUKE’S COMPLIANCE SCHEDULE WITH THOSE OF OTHER LARGE PROJECTS...... 15 9. CONCLUSIONS ...... 16 10. AUTHOR’S EXPERTISE AND QUALIFICATIONS ...... 17 ATTACHMENT A – RESUME ...... 1 ATTACHMENT B – LIST OF PUBLICATIONS AND PRESENTATIONS ...... 6 ATTACHMENT C – PREVIOUS EXPERT WITNESS TESTIMONY ...... 8
EXECUTIVE SUMMARY
This is an assessment of the schedule for achieving compliance with the U.S. Environmental Protection Agency’s (“EPA”) revised effluent limitations guidelines (“ELGs”)1 for bottom ash transport water (“BATW”) and flue gas desulfurization (“FGD”) wastewater generated at Duke Energy Carolinas’ (“Duke”) coal-fired Marshall Steam Station (“Marshall” or the “Plant”) proposed by the North Carolina Department of Environmental Quality (“DEQ”) in the draft National Pollutant Discharge Elimination System (“NPDES”) permit for the Plant.
The draft permit proposes a December 2023 date for compliance with the BATW and the FGD wastewater ELGs.2 The draft permit does not provide for expeditious compliance with the new requirements and, instead, adopts Duke’s artificially stretched-out timelines for all phases of work, providing for the unnecessary scheduling of tasks sequentially rather than in parallel, ignoring work that has already been completed or begun, and failing to include sufficient detail to justify the elongated schedules.
Based on industry-wide recognition of the feasibility of completing the necessary upgrades sooner and on Duke’s own experience with the type of upgrades required, as well as on the fact that it already has selected the requisite technology and begun preparations, Duke should be able to achieve compliance with the bottom ash transport water ELGs by November 1, 2020, at the latest, and with the FGD wastewater ELGs also by November 1, 2020, at the latest. I note that these dates are not that different from the January 31, 2021 compliance dates proposed by Duke itself for meeting the BATW and FGD wastewater ELGs in its May 9, 2016 letter to DEQ. (In addition, Duke must comply with the North Carolina Coal Ash Management Act which requires dry handling of bottom ash by December 31, 2019.)
Since Duke was well on its way to complying with the BATW and FGD wastewater ELGs at Marshall by January 31, 2021 in mid-2016—with a very leisurely schedule as discussed in its May 9, 2016 letter to DEQ—the extension of compliance deadlines until December 31, 2023 (i.e., almost three additional years) is technical untenable.
1 U.S. EPA, Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category; Final Rule, 80 Fed. Reg. 67,838 (Nov. 3, 2015) (revising 40 C.F.R. Part 423) [hereinafter “ELGs” or “ELG Rule”]. 2 The ELGs also affect fly ash transport water. But since fly ash is dry handled at Marshall, it is effectively in compliance with that ELG requiring zero discharge.
1 1. INTRODUCTION
This is an assessment of the schedule for achieving compliance with EPA’s revised effluent limitations guidelines for BATW and FGD wastewater generated at Duke’s Marshall Plant proposed in the draft NPDES wastewater permit for the Plant. Specifically, this assessment evaluates Duke’s extended schedule for achieving compliance with these requirements and finds this schedule to be unsupported.
2. BOTTOM ASH HANDLING AND FGD WASTEWATER TREATMENT AT THE MARSHALL PLANT
Duke operates four generating units at Marshall: Unit 1 (built in 1965, approximately 385 MW); Unit 2 (built in 1966, approximately 385 MW); Unit 3 (built in 1969, approximately 670 MW); and Unit 4 (built in 1970, approximately 670 MW). All four units were retrofitted with FGD for sulfur dioxide control, between 2006 and 2007.
Duke handles bottom ash from all four units using wet sluicing. The BATW transport water is directed to an existing impoundment (the “ash basin”) from which waters are discharged via Outfall 002.
Wastewater from the Marshall units’ FGD systems is sent to a treatment system comprised of a solids removal system and constructed wetlands. Details of the current FGD wastewater system are as follows, as excerpted from a technical paper presented by Duke in 2008.3
At Marshall, “[A] combination of a waste water solids removal system (WWSRS) and a [Constructed Wetlands Treatment System] CWTS was selected over the other treatment processes mainly because it met the anticipated waste water treatment needs at a significantly lower lifecycle cost….The WWSRS flow diagram is shown in [the figure below].
3 Wylie, Robert, et. al., Duke Energy Carolina LLC’s Strategy and Initial Experience of FGD Waste Water Treatment Systems, presented at the International Water Conference, October 2008, San Antonio, Texas. Available at http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.621.5654&rep=rep1&type=pdf
2 Figure 2: Marshall Station WWSRS Flow Diagram
The WWSRS is comprised of an Equalization Tank (EQ) taking an average flow at up to 542 gpm when all three absorbers are in operation and discharging a purge. The purpose of the EQ is to provide mixing of the waste water from the three absorbers and to provide an inventory of waste water to assure continuous flow to the downstream clarifier. The effluent from the EQ is pumped to a flocculating clarifier where suspended solids are settled out and discharged from the clarifier to the sludge holding tank. Polymer is injected into the line leaving the EQ, to enhance the formation of floc in the clarifier. No pH adjustment is made at any point within the WWSRS or the CWTS. The overflow from the clarifier flows to the wetland supply tank and then is pumped to the CWTS about one mile away. Sludge is pumped from the sludge tank to a set of three recessed chamber type filter presses (“plate and frame type”). The sludge is dewatered to about 60-70 wt% solids and discharged to a truck located below the filter press discharge. Filtrate from the filter presses is pumped back to the EQ. A Maintenance Tank is also included in the WWSRS system to act as a backup to the EQ or the Sludge Tank or the clarifier (for short durations), when any of them requires servicing. The dewatered sludge is hauled to an onsite lined landfill. … The Marshall FGD units were brought on line between October 2006 and May 2007. The WWSRS started up in December 2006, and although it experienced some normal start-up challenges….overall it is providing excellent results…. … Another positive impact in the WWSRS was the higher reduction of mercury and selenium in the clarification stage than had been expected. This is explained by more of the mercury and selenium being in a suspended form than expected in the design basis and thus able to be significantly reduced by clarification. The net effect of this situation is that less load is placed on the constructed wetlands allowing them to function as a polishing process.”4
4 Ibid.
3 In addition, the 2008 Duke paper also notes that Duke conducted additional bioreactor testing at Marshall in support of likely bioreactor use at its other plants, including Belews Creek and Allen:
“During the period of May through December 2007, a pilot test of the fixed film biological treatment system to be used at Belews Creek and Allen Steam Stations for the removal of selenium and other metals was performed at Duke Energy’s Marshall Steam Station. It was determined that an opportunity to test the technology on actual FGD purge waters would provide valuable operating experience for the startup of the Belews Creek WWTS and provide potential design improvements for the Allen WWTS, still under construction. … Key results of the study are as follows: • Selenium removal below 100 ppb (performance guarantee for Belews Creek and Allen) was achieved for the entire test period. • Selenium removal below 21 ppb (Allen NPDES limit) was achieved 80% of the time. • Selenium speciation had no impact on bioreactor performance, including organic forms such as SeCN. • Effect selenium removal was achieved during significant changes in influent water characteristics. • 100% nitrate removal is not required to achieve effective selenium reduction. • The use of [dibasic acid] DBA in the FGD Scrubber reduced the amount of nutrient addition required. • Station upsets and shutdowns had no significant impacts on performance.”5
As the discussion above shows, Duke, as a utility, and especially Marshall as an operating plant, has significant experience in physical/chemical as well as biological treatment of FGD wastewaters—since 2007 or roughly for 10 years.
3. EXISTING PERMIT AND PROPOSED REVISED DATES FOR COMPLIANCE WITH ELGS FOR BOTTOM ASH TRANSPORT WATER AND FGD WASTEWATER AT THE MARSHALL PLANT
The current NPDES permit for the Plant—permit no. NC0004987—provides that “[b]y January 31, 2021, there shall be no discharge of pollutants in bottom ash transport water,” and that technology- based effluent limits for discharges of treated FGD wet scrubber wastewater “shall become effective on January 31, 2021.” These compliance dates adopted in the current permit are those requested by Duke in the May 9, 2016 letter to DEQ as noted earlier. The letter provides details regarding Duke’s plans for compliance with the new ELGs for bottom ash transport water and FGD wastewater.
Thus, in 2016, Duke requested 4 years and 7 months (or 55 months) for compliance with the bottom ash transport water limit, citing the need to convert to a dry ash handling system: “To convert the wet bottom ash transport system at [Marshall] to a closed loop system, Duke plans to install a remote mechanical drag chain system (RMDS). Duke would like to request January 31, 2021 as the
5 Ibid.
4 applicability date for the no discharge of bottom ash transport water, assuming a permit effective date of July 1, 2016.”
For FGD wastewater ELG compliance, Duke also requested a 55-month compliance schedule, citing the need to replace the existing FGD wastewater treatment system at Marshall: “[W]e plan to evaluate the development of a new physical/chemical system augmented by a selenium reduction system. Duke would like to request January 31, 2021 as the applicability date for the best available technology (BAT) limits for FGD wastewater, assuming a permit effective date of July 1, 2016.”
It appears from the record that DEQ simply accepted Duke’s requested compliance schedule without any analysis or clarification. In fact, DEQ confirmed as much, stating: “Duke provided the justification for the proposed deadline and DEQ concurred with the compliance date.”
Now, as noted earlier, Duke is seeking an even longer compliance schedule, and has asked DEQ to allow it to wait until December 31, 2023 to comply with the limits. That is, 70 months (nearly six years) from now. Neither the previous 55-month nor the currently requested 70-month compliance timeline is supported by any of Duke’s submittals or by any independent analysis conducted by DEQ. In my opinion, compliance can be achieved sooner.
4. TECHNOLOGY CHOICES FOR BATW ELG COMPLIANCE
As noted earlier, Duke has stated that it intends to meet the zero discharge requirement for bottom ash transport water using a RMDS. In fact, Duke has previously indicated to the EPA that it intended to convert its wet sluicing system to a dry or closed loop system at Marshall, well before finalization of the ELG Rule. In a memorandum dated September 30, 2015, EPA’s contractor ERG lists a number of plants “with announced” bottom ash handling conversions.6 According to the ERG memorandum, the bottom ash conversion at Marshall would be completed by December 31, 2020 based on a survey conducted by EPA, years earlier than Duke’s current timeline.
There are significant vendor resources available to meet a much earlier compliance date than the currently proposed December 31, 2023. In fact, many vendors were actively involved with EPA during the ELG rulemaking.
A. Vendor Pool and Experience
In order “to gather information on handling fly ash and bottom ash” during the ELG rulemaking, EPA “contacted several ash handling and ash storage vendors. The vendors provided the following types of information for EPA’s analyses:
Type of fly ash and bottom ash handling systems available for reducing or eliminating ash transport water; Equipment, modifications, and demolition required to convert wet-sluicing fly ash and bottom ash handling systems to dry ash handling or closed-loop recycle systems;
6 See ERG, Memorandum re Bottom Ash Complete Recycle (Sept. 30, 2015), EPA-HQ-OW-2009-0819-6212, Tables 1 and 2, available at https://www.regulations.gov/document?D=EPA-HQ-OW-2009-0819-6212.
5 Equipment that can be reused as part of the conversion from wet to dry handling or in a closed-loop recycle system; Outage time required for the different types of ash handling systems; Maintenance required for each type of system; Operating data for each type of system; Purchased equipment, other direct, and indirect capital costs for fly ash and bottom ash conversions; Specifications for the types of ash storage available (e.g., steel silos or concrete silos) for the different types of handling systems; Equipment and installation capital costs associated with the storage of fly ash and bottom ash; and Operation and maintenance costs for fly ash and bottom ash handling systems.”7
The vendor community has been well aware of the rule requirements and participated fully in the rulemaking. There are numerous well-qualified U.S. vendors (and foreign vendors that are active in the U.S. market) that are capable of providing equipment and services for ash handling and conversion of wet bottom ash handling systems to dry systems or closed-loop recycle systems. Major vendors include United Conveyer Corporation (“UCC”),8 Clyde Bergemann,9 and Magaldi10—each of which has wet to dry conversion technologies. Other vendors such as GE, Veolia, Nalco, Aquatech, Heartland, LB Industrial Systems, and many others also have potential capabilities and solutions for specific aspects of ash handling. The ELG docket shows that EPA consulted extensively with at least UCC and Clyde Bergemann with respect to bottom ash transport water and handling during rule development.11 Both of these vendors have wet to dry ash conversion systems which have been installed at coal plants around the world, including the U.S. This includes RDMS, which Duke has selected as the compliance option at Marshall.
That the vendor community for bottom ash handling is robust is not surprising given that the U.S. coal-fired power plant fleet is over 800 units strong, with each one generating copious amounts of bottom ash that must be handled and managed. Further, as the ELGs rulemaking record shows, a significant portion of the U.S. coal fleet already meets the ELG BAT standard for bottom ash wastewater using dry handling systems. These vendors already have many technology solutions and offerings for achieving a zero discharge bottom ash wastewater standard. As EPA states in the preamble to the ELG Rule:
7 U.S. EPA, Technical Development Document for the Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category, EPA-821-R-15-007 at 3-21 and 3-22 (Sept. 2015). 8 UCC offers various hydraulic, mechanical, pneumatic, and vibratory systems for dry bottom ash handling. See http://unitedconveyor.com/bottom_ash/ (last visited Sep. 26, 2016). 9 Clyde Bergemann offers a trademarked “DRYCON” system for dry bottom ash handling. See http://www.cbpg.com/en/products-solutions-materials-handling-bottom-ash/drycon%E2%84%A2 (last visited Sep. 26, 2016). 10 Magaldi offers a dry ash handling system called MAC. See http://www.magaldi.com/en/magaldi_solutions_for/Ash- Handling-Mac__9_11.php#tab_fototab (last visited Sep. 26, 2016). 11 See, for example, ERG/EPA Call Notes re Ash Handling Conversion in the Industry (May 24, 2012), EPA-HQ-OW- 2009-0819-0580, available at https://www.regulations.gov/document?D=EPA-HQ-OW-2009-0819-0580 (pertaining to EPA and its contractor’s discussions with UCC); ERG Memorandum re Ash Handling Documentation from Communications with Clyde Bergemann (Sept. 30, 2015), EPA-HQ-OW-2009-0819-6232, available at https://www.regulations.gov/document?D=EPA-HQ-OW-2009-0819-6232.
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…technologies for control of bottom ash transport water are demonstrably available. Based on survey data, more than 80 percent of coal-fired generating units built in the last 20 years have installed dry bottom ash handling systems. In addition, EPA found that more than half of the entities that would be subject to BAT requirements for bottom ash transport water are already employing zero discharge technologies (dry handling or closed-loop wet ash handling) or planning to do so in the near future.12
In addition to the vendor base and experience, comments provided to EPA during the ELG rulemaking show that the compliance schedule for BATW can be much shorter than what Duke has proposed. I note here, in particular, the comments to EPA provided by the Utility Water Act Group (“UWAG”), an industry consortium, which includes almost all U.S. utilities as its members.13 Duke is a member of UWAG.
B. Compliance Timeline by Others
In its comments, pertaining to bottom ash conversions, UWAG offers case studies showing conversion to dry bottom ash handling in 36 months or less:
[I]n the case study presented in the attachment, it would take 30-36 months to convert from a wet bottom ash hopper to a dry bottom ash hopper for a large unit…..Another case study for adding a remote wet ash hopper and submerged flight conveyor would take 27-33 months.14
The project implementation timeframes referenced in this section, which are already considerably shorter than Duke’s earlier 55-month and current 70-month request, are relevant for situations in which no initial planning or assessment has been completed. However, it is reasonable to expect that Duke has conducted significant planning at Marshall, since it has already selected RDMS as the compliance solution. Thus, the implementation schedule at Marshall should be shorter that the 36 months noted in the UWAG comments.
In addition, other utilities, such as the Southern Company, in their own comments on the proposed ELG Rule also indicated their ability to convert wet bottom ash handling systems to dry systems in the same time frames as indicated in the Electric Power Research Institute (EPRI) comments.15
12 80 Fed. Reg. at 67,852. 13 As UWAG’s comment’s note, “UWAG is a voluntary, ad hoc, non-profit, unincorporated group of 198 individual energy companies and three national trade associations of energy companies: the Edison Electric Institute, the National Rural Electric Cooperative Association, and the American Public Power Association. The individual energy companies operate power plants and other facilities that generate, transmit, and distribute electricity to residential, commercial, industrial, and institutional customers.” Utility Water Act Group Comments on EPA’s Proposed Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, at 1 n.1. 14 Id. at 84. 15 Southern Company Comments on EPA’s Proposed Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, Appendix B.
7 C. BATW Compliance Schedule Summary
Thus, Duke has a good selection of experienced and prepared vendors to select from to achieve compliance with the bottom ash transport water ELG requirements. Based on communications with several vendors, their relatively low workloads at present makes it an ideal time to negotiate favorable terms for procurement as well expedited fabrication and installation. In summary, there is no reason, in my opinion, that Duke cannot meet a compliance date of November 2020 for the zero-discharge ELG for BATW at Marshall—approximately 32 months from now.
5. TECHNOLOGY CHOICES FOR FGD ELG COMPLIANCE
For FGD wastewater compliance, as noted previously, Duke has roughly 10 years of experience dealing with treating this wastewater. Of course, Duke, like all other major utilities, was actively involved in the development of the ELG rule by EPA since initial data collection efforts beinning in roughly 2009. EPA staff and contractors made visits to various Duke plants durin the development of the rule. Thus, Duke was well aware of the proposed and final ELG rule limits—with the final limits being less stringent than what was initial proposed by EPA.
Duke has installed FGD wastewater treatment systems at other power plants (e.g., Mayo and Allen) and, therefore, already has close to a decade of operating experience with those systems. Given Duke’s experience with such systems and its vendor relationships (as well as the potential leverage Duke has with the vendors, given the multiple installations throughout the Duke system), a compliance strategy for new FGD wastewater discharge limitations involving the installation of a physical/chemical treatment system (which could be a modification of its existing physical treatment system) along with a GE ABMet [Advanced Biological Metals Removal Process] bioreactor likely would be the simplest, least-cost, and most expeditous option. Duke has indicated that it intends to do something similar:
“The existing FGD Wastewater Treatment System (WWTS) currently flows through constructed wetlands and then flows through Internal Outfall 004. To comply with the Federal ELG for FGD wastewater, a new FGD WWTS system will be constructed and utilized. This system will consist of physical/chemical treatment units, a bioreactor, and ultrafiltration systems. Solids settled and collected in the physical/chemical system will be handled via a series of filter presses and disposed of in the facility's onsite landfill. A new Internal Outfall 006 will be required to accommodate the new FGD WWT discharge. The new Internal Outfall 006 will be directed to the retention basin described in item #2 of this letter. Duke requests that a new Internal Outfall 006 for the new FGD wastewater treatment system discharge be added to the permit.”16
While Duke has indicated elsewhere that it intends to remove its existing treatment system and install the new physical/chemical plus bioreactor system along with the ultrafiltration system as noted above, the company has not explained why portions of the current treatment system couldn’tbe modified and used, along with adding the bioreactor.
16 Letter dated August 22, 2017 from Duke to DEQ.
8 A. Vendor Experience
Like for BATW, with regards to FGD wastewater, as discussed in the record for the ELG Rule, EPA consulted widely with the vendor community as well as with EPRI. The Agency reviewed EPRI’s many studies on wastewater pollutant reduction technologies, as well as studies by GE, the vendors used by Duke for its bioreactors at other plants.17
In addition to GE and past use of GE’s ABMet technology, there are other technology suppliers and vendors who have biological treatment options that can meet the FGD wastewater ELG requirements. These include Frontier Water Systems (SeHAWK),18 and Envirogen Technologies.19 Indeed, as EPA notes in the ELG Rule preamble:
…forty-five percent of all steam electric power plants with wet scrubbers have equipment or processes in place able to meet the final BAT/PSES effluent limitations and standards. Many of these plants use FGD wastewater management approaches that eliminate the discharge of FGD wastewater. Other plants employ wastewater treatment technologies that reduce the amount of pollutants in the FGD waste stream. Both chemical precipitation and biological treatment are well- demonstrated technologies that are available to steam electric power plants for use in treating FGD wastewater. Based on industry survey responses, 39 U.S. steam electric power plants (44 percent of plants discharging FGD wastewater) use some form of chemical precipitation as part of their FGD wastewater treatment system. More than half of these plants (30 percent of plants discharging FGD wastewater) use both hydroxide and sulfide precipitation in the process to further reduce metals concentrations. In addition, chemical precipitation has been used at thousands of industrial facilities nationwide for the last several decades.20
Thus, Duke has a good selection of experienced and prepared vendors to select from to achieve compliance with the FGD wastewater ELG requirements.
B. Compliance Schedule Achieved by Others
Regarding the required installation timelines for a system such as the ABMet, it is instructive to look to prior experience. I use AEP’s Mountaineer plant as an example. At its Mountaineer plant, owner AEP selected the ABMet system after prior evaluations in 2011.21
In April 2011, GE put out an announcement describing this system and suggested it could be operational in approximately 8 months:
17 U.S. EPA, Technical Development Document for the Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category, EPA-821-R-15-007 at 3-24, 7-56, and 7-57. 18 See Power Magazine, November 2016, p. 42; see also http://frontierwater.com/product-line/. 19 See http://www.envirogen.com/pages/contaminants/selenium-2/. 20 80 Fed. Reg. at 67,850. 21 http://www.businesswire.com/news/home/20110414006578/en/AEP-Turns-GE%E2%80%99s-ABMet%C2%AE- Technology-Reduce-Selenium.
9 American Electric Power chose GE’s ABMET wastewater bioreactor system at AEP’s 1,300 MW Mountaineer coal-fired power plant in West Virginia. The system uses a molasses-based product as a nutrient for microbes that reduce selenium, which is found in wastewater from many coal-fired power plants. The microbes are seeded in a bed of activated carbon that acts as a growth medium to create a biofilm. The wastewater passes through the reactor and reduces the selenium in the water. The system is expected to be operational by the end of 2011. AEP is the third U.S. utility to use GE’s wastewater treatment process.22
As GE noted, even back in 2011, over four years prior to the finalization of the ELG Rule in 2015 and over two years prior to the proposed rule, AEP was the third utility to use this process.
A later statement confirms that the GE ABMet at Mountaineer was indeed installed quickly and produced selenium concentrations that meet the ELG limits (23 daily max/12 monthly average): “The ABMet system has consistently achieved less than 10 ppb selenium level… The ABMet system has been in service since November 2011 and as of June 2014 has provided 100% availability.”23
The system was announced for Mountaineer in mid-April 2011 and was already in service by November 2011—i.e., in less than 8 months.
The physical/chemical treatment process at Mountaineer, in which FGD wastewater is first treated before it is biologically treated in the GE ABMet system, was installed after 2008, as discussed in EPA’s Technical Development Document for the ELG Rule:
One example of a treatment system operating to meet only the BPT-based limitations for TSS, pH, and O&G was AEP’s Mountaineer plant, which initially operated a chemical precipitation system to treat its FGD wastewater. In 2008, 1 year after the start-up of the FGD scrubbers and the FGD wastewater treatment system, the plant went through a permit renewal process and the state proposed to add a WQBEL for mercury. Based on the proposed mercury limitations in the new permit, AEP conducted a pilot study evaluating three different technologies that could be installed as additional treatment downstream of the currently operating chemical precipitation system. Mountaineer conducted the pilot study from July through December 2008. During the first 3 months of the study, the mercury concentrations of the chemical precipitation system effluent feeding the pilot tests averaged 1,300 parts per trillion(ppt). None of the three technologies achieved the target effluent concentrations for the pilot testing. Therefore, AEP took steps to optimize the solids removal in the chemical precipitation system, including adding additional polymers and organosulfide. Using these optimization steps, AEP noted that “[t]he combination of supplemental coagulation and organosulfide addition consistently yielded approximately 80 percent of additional mercury reduction . . .” within the chemical precipitation system (internal citation omitted).24
22 http://www.power-eng.com/articles/2011/04/ge-wastewater-system-picked-for-mountaineer.html (emphasis added). 23 https://www.gewater.com/kcpguest/documents/Case%20Studies.../CS1472EN.pdf (emphasis added). 24 EPA, Technical Development Document for the Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category, U.S. Environmental Protection Agency, EPA-821-R-15-007 at 7-6 and 7-7 (Sep. 2015), available at https://www.epa.gov/eg/steam-electric-power-generating-effluent-guidelines-2015-final-rule-documents.
10
It is likely that AEP began evaluations for options to treat selenium at Mountaineer in 2009 or later, after it had optimized its physical/chemical treatment system for mercury in 2008, as discussed. Assuming a start sometime in early 2009, the fact that AEP was able to select the GE ABMet system by April 2011, as described, means that this process took only around two years. Moreover, this technology evaluation was for the first application of this (relatively, at that time) new technology at a plant in AEP’s system. I note that Duke also has had almost 10 years of experience with similar systems at its plants. In any case, since the GE ABMet technology has now been operating for over 5 additional years at many more plants, with considerably more accumulated experience, the evaluation and implementation steps should take even less time.
Finally, recent discussions with GE confirm that it is able to bring its ABMet biological system online in 18-24 months for most plants.25
C. FGD Wastewater ELG Compliance Schedule Summary
Thus, there is simply no support for the claim that Duke needs 6 more years to achieve FGD ELG compliance at Marshall. Even if Duke wants to completely remove its existing system and install a completely new GE ABMet or similar system, it should be able to do so in around 2 years. Nonetheless, allowing for some slack, it is my opinion that compliance can definitely be achieved by November 2020, or roughly 32 months from now.
6. DUKE ENERGY’S PLANNING TO COMPLY WITH THE ELGS
As discussed previously, it is reasonable to assume that Duke’s planning process for ELG compliance likely began some time ago. Public statements from Duke Energy show that the company has already evaluated options and developed likely costs for compliance with the ELGs at Marshall and its other facilities, and that implementation can and should occur more quickly than the timeline proposed by Duke and DEQ.
In its 2013 Annual Report, Duke acknowledged that its power plants would be subject to forthcoming effluent limits.26 In its next annual report, Duke offered cost estimates for compliance with the proposed ELGs and notes that “[r]equirements to comply with the Final rule may begin as early as late 2018 for some facilities.”27 Even though the ELGs had not yet been finalized, Duke recognized that the rule would likely be final by September 2015 and had already developed cost estimates for compliance. Duke necessarily would have had to complete considerable planning and engineering work in the 2013-2014 time period to be able to share such cost estimates.
25 Personal communications with GE staff located in Ontario Canada dealing in coal plant ELG compliance options, including GE ABMet and other solutions. 26 Duke Energy, 2013 Annual Report, available at http://www.annualreports.com/Company/duke-energy-corporation (“On June 7, 2013, the EPA proposed Steam Electric Effluent Limitations Guidelines (ELGs). The EPA is under a court order to finalize the rule by May 22, 2014. The EPA has proposed eight options for the rule, which vary in stringency and cost. The proposed regulation applies to seven waste streams, including wastewater from air pollution control equipment and ash transport water. Most, if not all of the steam electric generating facilities the Duke Energy Registrants own are likely affected sources. Compliance is proposed as soon as possible after July 1, 2017, but may extend until July 1, 2022. The Duke Energy Registrants are unable to predict the outcome of the rulemaking, but the impact could be significant.”) 27 Duke Energy, 2014 Annual Report at 59, available at http://www.annualreports.com/Company/duke-energy-corporation.
11 In its annual reports for 2015 and 2016, Duke again projected compliance dates and costs for the ELGs and represented to its shareholders and the public that “[t]he Duke Energy Registrants are well- positioned to meet the requirements of the rule due to current efforts to convert to dry ash handling.”28 This statement is not surprising and is consistent with Duke’s ability to comply with the ELGs at Marshall much more quickly than proposed in the draft permit.
7. CRITIQUE OF DUKE’S PROPOSED COMPLIANCE SCHEDULE
In light of the information above, I have reviewed the proposed timelines for ELG compliance at the Marshall Plant. As noted above, Duke attempts to make the case that the compliance deadlines should be pushed out until December 31, 2023—70 months from now. This delay is not justified by Duke’s submissions to DEQ and directly contradicts EPA’s expectations of expeditious compliance with the ELG Rule.
Compliance with the bottom ash transport water ELG zero discharge requirements should take no more than 27-32 months, at the most, consistent with industry comments to the EPA during ELG rulemaking. Given Duke’s assessment of closed-loop or dry ash handling systems prior to September 2015, starting the timeline for necessary retrofits at September 2015 would be conservative. Even if Duke didn’t begin retrofits until September 9, 2016, when DEQ issued a final NPDES permit for the plant, it is feasible that Duke could have completed construction and optimization of treatment systems by December 2018. Nonetheless and for the sake of a conservative estimate, I have assumed a construction start date of today. Accordingly, I concluded that compliance can be achieved, at the latest, 32 months from today—namely by November 2020.
With regards to FGD wastewater, it is clear from the discussion above, that Duke was able to work with GE and implement new bioreactor technology at multiple units in a period of 48 months or less. Now, Duke has 10 years of operational experience with these systems at multiple plants. As shown earlier, AEP was able to implement the GE ABMet system at Mountaineer in roughly 24 months. In addition, vendors other than GE are able to provide biological treatment systems. It is therefore not unreasonable to assume that today, with its experience and understanding of FGD operations under all conditions (after all, each of the FGDs have operated for over 10 years at Marshall), Duke should be able to meet the ELG requirements in far less than 48 months—which is the maximum time it took Duke to install these brand new technologies at multiple plants, almost 10 years ago. In my opinion, Duke has not justified any need for an FGD wastewater ELG compliance date later than November 2020, or 32 months from today. This is generous when compared to what AEP was able to do at Mountaineer and includes additional time for tie-ins, commissioning, and optimization.
As mentioned earlier, Duke’s most recent detailed discussion of the implementation schedule for BATW and FGD wastewater compliance is contained in its May 2016 letter to DEQ—when it requested January 2021 compliance dates. It is clear from even a cursory reading of its schedule discussion in the May 2016 letter that the discussion is generic, boiler plate, with little or no Marshall- specific support for the long compliance times noted in that letter. Basically, in its May 2016 letter, Duke “supports” its then 55-month compliance schedule for both the BATW and the FGD wastewater ELGs, as summarized in the two charts below, relying on unsupported (i.e., with no details) and
28 Duke Energy, 2015 Annual Report at 63 available at http://www.annualreports.com/Company/duke-energy-corporation; Duke Energy, 2016 Annual Report at 60 available at https://www.duke-energy.com/_/media/pdfs/our- company/investors/de-annual-reports/2016/2016annualreport.pdf.
12 speculative times for design, procurement, “potential” permit delays, construction/tie-in, and startup/commissioning/optimization. Duke provided no details regarding engineering, procurement, or permitting or any explanation of the proposed schedule for specific tasks included in the charts below.
A little more than a year after Duke sent the May 2016 letter, it sent another letter to the DEQ on August 22, 2017, requesting that the NPDES permit contain no compliance date at all. While the August 22, 2017 letter bases its request on claimed regulatory uncertainty, it also contains some additional detail as to the BATW and FGD wastewater treatment systems. Importantly, some of the additional information in the August 2017 letter directly undercuts the timelines outlined in Duke’s May 2016 letter—i.e., Duke provides enough detail in its August 2017 letter to confirm that its generic
13 schedule-related justifications in its May 2016 letter are not valid anymore and have been superseded by its own progress since that time.
First, Duke confirms that, at least for BATW, it is well into project implementation to meet the North Carolina Coal Ash Management Act deadline of December 31, 2019 for dry ash handling:
“[P]rojects are underway including the installation of a submerged flight conveyor and redundant fly ash handling equipment to convert ash handling of both bottom ash and fly ash to 100% dry handling.”
And, contrary to its previous assertions in May 2016 that it would need more time to either develop or update its water/wastewater flow and mass balances, Duke’s August 22, 2017 letter indicates that its planning for a new retention basin necessitated the development of such balances and that these have already been developed:
“[T]he retention basin will be approximately 19.5 acres in area and will have chemical feed systems for the addition of flocculent and pH adjustment chemicals. Calculated predictions for influent and effluent concentrations for the Retention Basin are included on Table 1 in Attachment #4. These predicted concentrations were developed first by characterizing the wastewater streams that are currently discharging into the ash basin; then by developing flow and mass balances to determine the influent load on the new retention basin; next the removal performance for the new retention basin and chemical feed system was estimated by extrapolating the projected total suspended solids removal efficiency to predict the effluent concentrations. It is anticipated this retention basin will have a flow volume of approximately 5.0 Million Gallons per Day (MGD) to Lake Norman. Duke requests a new NPDES Outfall 005 for the discharge from the Retention Basin be added to the permit.” (Emphasis added.)
Another argument that Duke made in May 2016, justifying a longer schedule, is that it did not know where the new treatment systems will be located and that therefore permitting and other related matters would take time to resolve. Duke’s August 22, 2017 letter, however, confirms that the location of the new FGD wastewater treatment system is no longer an uncertainty:
“Duke intends to process legacy FGD wastewater through existing permitted Internal Outfall 004 until the treatment units associated with that outfall are decommissioned and closed. The requested new Internal Outfall 006 for treated FGD wastewater and Internal Outfall 004 will need to both be operational for a period of time. Outfall 004 will continue to discharge into the ash settling basin. Upon completion of a new FGD Wastewater treatment system, Outfall 004 will remain solely for stormwater discharge. Storm water from the new FGD treatment area will be directed to the retention basin and discharge through Outfall 005. The location of the new FGD wastewater treatment system and its associated Internal Outfall 006 is identified on the Site Plan available in Attachment #2.” (Emphasis added.)
Thus, the details provided by Duke in its August 22, 2017 letter confirm that Duke has made significant progress with regards to its BATW and FGD wastewater ELG compliance, including: selecting the technologies for compliance; completing necessary supporting engineering such as water and mass balances; confirming the locations of these technologies at Marshall.
14 Based on this, it is reasonable, in my opinion, to assume that related issues such as vendor selection, other supporting engineering work, procurement activities, permitting, etc.—which were supposedly uncertain in May 2016—have either been addressed or could be addressed in relatively short order.
All of this confirms my opinion that Duke has made ample progress and can comfortably meet the ELGs for BATW and FGD wastewater by November 2020, as I have suggested. Of course, in its most recent letter to DNR on December 6, 2017, requesting the December 31, 2023 compliance dates, Duke does not (and cannot) make any technical arguments for the even more expanded schedule.
8. COMPARISON OF DUKE’S COMPLIANCE SCHEDULE WITH THOSE OF OTHER LARGE PROJECTS
Duke’s proposed compliance schedule, as noted above, are not supported and, indeed, are at odds with shorter timeframes identified by EPA and other groups as well as those experienced by Duke at its own plants. Additionally, in comparison to other major projects at coal-fired units, the 70-month schedules proposed for ELG compliance are simply unreasonable and too long. Here, comparisons are made using the expected timelines for implementing complex air pollution control projects at coal-fired boilers. These include the installation of dry and wet FGD systems and the installation of Selective Catalytic Reduction (“SCR”) controls for NOx control. These projects, for units of similar size to the Roxboro units, often cost hundreds of million dollars. Yet, while often complex and challenging to implement, timelines for such projects are in the range of 3 to 5 years—starting from conceptual engineering through completion during scheduled outages.
Three example timelines are shown below—for dry FGD, wet FGD, and SCR projects, respectively— as developed by a contractor for MISO, the independent system operator for the U.S.29 These timelines are generally conservative—i.e., the timelines shown are generally high, reflecting the most complex installations, with typical projects capable of implementation in less time. Nonetheless, as the charts below illustrate, the expected durations for implementing dry FGD or SCR are around 46 months and around 56 months for wet FGD.
Given the far greater complexity of these projects, Duke’s assertion that the relatively much simpler conversion of Marshall’s wet sluicing bottom ash system to a dry or a closed loop system and the installation of a wastewater treatment system will take 70 months—on par or longer than the far more complex FGD installations at coal units—is untenable.
29 The Brattle Group, Supply Chain and Outage Analysis of MISO Coal Retrofits for MATS, Appendix A (May 2012), available at http://www.brattle.com/news-and-knowledge/news/brattle-economists-identify-challenges-for-miso-s-coal-fleet-to- comply-with-epa-s-mats-rule.
15
9. CONCLUSIONS
Duke does not need almost six years (70 months) to achieve compliance with the ELG requirements for either BATW or FGD wastewater. Duke’s “justifications” for the drawn out timelines are vague and unsupported. They also contradict Duke’s own experience and that of others, and are at odds with EPA’s expectation of expeditous compliance. Any reading of Duke’s “justifcations” for its timelines will show that Duke, far from being expeditious, in fact made every effort to stretch out its timelines, using every excuse possible. Duke’s schedule includes sequential tasks that could be done in parallel, does not recognize work already done, and does not provide any detail whatsoever for the proposed months and years for specific tasks.
In fact, the necessary upgrades could be achieved on much shorter timelines. As demonstrated herein, based on publicly available information, Duke could achieve compliance with the BATW zero- discharge ELG by November 2020, at the latest, and with the FGD wastewater ELGs also by November 2020, if not earlier. In my opinion, even these suggested shortened timelines are generous given the status reported by Duke in its August 2017 letter to DEQ, and Duke should have no problem achieving compliance even sooner if it devotes adequate resources to achieve expeditious compliance.
16 10. AUTHOR’S EXPERTISE AND QUALIFICATIONS
Dr. Ranajit Sahu has over twenty-five years of experience in the fields of environmental, mechanical, and chemical engineering including: program and project management services; design and specification of pollution control equipment for a wide range of emissions sources; soils and groundwater remediation including landfills as remedy; combustion engineering evaluations; energy studies; multimedia environmental regulatory compliance (involving statutes and regulations such as the Federal CAA and its Amendments, Clean Water Act, TSCA, RCRA, CERCLA, SARA, OSHA, NEPA as well as various related state statutes); transportation air quality impact analysis; multimedia compliance audits; multimedia permitting (including air quality NSR/PSD permitting, Title V permitting, NPDES permitting for industrial and storm water discharges, RCRA permitting, etc.), multimedia/multi- pathway human health risk assessments for toxics; air dispersion modeling; and regulatory strategy development and support including negotiation of consent agreements and orders.
Over the last twenty-three years, Dr. Sahu has consulted on several municipal landfill related projects addressing landfill gas generation, landfill gas collection, and the treatment/disposal/control of such gases in combustion equipment such as engines, turbines, and flares. In particular, Dr. Sahu has executed numerous projects relating to flare emissions from sources such as landfills as well as refineries and chemical plants. He has served as a peer-reviewer for EPA in relation to flare combustion efficiency, flare destruction efficiency, and flaring emissions.
A significant portion of Dr. Sahu’s educational background and consulting experience deals with addressing environmental impacts due to coal-fired power plants including all aspects of air emissions from such plants but also environmental impacts from water/waste water, cooling water, and solid/hazardous wastes at such plants and impacts due to coal mining, transportation, and stockpiling.
Dr. Sahu holds a B.S., M.S., and Ph.D., in Mechanical Engineering, the first from the Indian Institute of Technology (Kharagpur, India) and the latter two from the California Institute of Technology (Caltech) in Pasadena, California. His research specialization was in the combustion of coal and, among other things, understanding air pollution aspects of coal combustion in power plants as well as the formation of ash during combustion.
The opinions expressed in the report are Dr. Sahu’s and are based on the data and facts available at the time of writing. Should additional relevant or pertinent information become available, Dr. Sahu reserves the right to supplement the discussion and findings.
17 ATTACHMENT A – RESUME
RANAJIT (RON) SAHU, Ph.D, QEP, CEM (Nevada)
CONSULTANT, ENVIRONMENTAL AND ENERGY ISSUES 311 North Story Place Alhambra, CA 91801 Phone: 702.683.5466 e-mail (preferred): [email protected]
EXPERIENCE SUMMARY
Dr. Sahu has over twenty five years of experience in the fields of environmental, mechanical, and chemical engineering including: program and project management services; design and specification of pollution control equipment for a wide range of emissions sources; soils and groundwater remediation including landfills as remedy; combustion engineering evaluations; energy studies; multimedia environmental regulatory compliance (involving statutes and regulations such as the Federal CAA and its Amendments, Clean Water Act, TSCA, RCRA, CERCLA, SARA, OSHA, NEPA as well as various related state statutes); transportation air quality impact analysis; multimedia compliance audits; multimedia permitting (including air quality NSR/PSD permitting, Title V permitting, NPDES permitting for industrial and storm water discharges, RCRA permitting, etc.), multimedia/multi-pathway human health risk assessments for toxics; air dispersion modeling; and regulatory strategy development and support including negotiation of consent agreements and orders.
Specifically, over the last twenty-three years, Dr. Sahu has consulted on several municipal landfill related projects addressing landfill gas generation, landfill gas collection, and the treatment/disposal/control of such gases in combustion equipment such as engines, turbines, and flares. In particular, Dr. Sahu has executed numerous projects relating to flare emissions from sources such as landfills as well as refineries and chemical plants. He has served as a peer-reviewer for EPA in relation to flare combustion efficiency, flare destruction efficiency, and flaring emissions.
A significant portion of Dr. Sahu’s educational background and consulting experience deals with addressing environmental impacts due to coal-fired power plants including all aspects of air emissions from such plants but also environmental impacts from water/waste water, cooling water, and solid/hazardous wastes at such plants and impacts due to coal mining, transportation, and stockpiling.
Dr. Sahu holds a B.S., M.S., and Ph.D., in Mechanical Engineering, the first from the Indian Institute of Technology (Kharagpur, India) and the latter two from the California Institute of Technology (Caltech) in Pasadena, California. His research specialization was in the combustion of coal and, among other things, understanding air pollution aspects of coal combustion in power plants as well as the formation of ash during combustion.
1
He has over twenty-three years of project management experience and has successfully managed and executed numerous projects in this time period. This includes basic and applied research projects, design projects, regulatory compliance projects, permitting projects, energy studies, risk assessment projects, and projects involving the communication of environmental data and information to the public. Notably, he has successfully managed a complex soils and groundwater remediation project with a value of over $140 million involving soils characterization, development and implementation of the remediation strategy including construction of a CAMU/landfill and associated groundwater monitoring, regulatory and public interactions and other challenges.
He has provided consulting services to numerous private sector, public sector and public interest group clients. His major clients include various steel mills, petroleum refineries, cement companies, aerospace companies, power generation facilities, lawn and garden equipment manufacturers, spa manufacturers, chemical distribution facilities, and various entities in the public sector including EPA, the US Dept. of Justice, California DTSC, various municipalities, etc.). Dr. Sahu has performed projects in over 44 states, numerous local jurisdictions and internationally.
In addition to consulting, Dr. Sahu has taught numerous courses in several Southern California universities including UCLA (air pollution), UC Riverside (air pollution, process hazard analysis), and Loyola Marymount University (air pollution, risk assessment, hazardous waste management) for the past seventeen years. In this time period he has also taught at Caltech, his alma mater (various engineering courses), at the University of Southern California (air pollution controls) and at California State University, Fullerton (transportation and air quality).
Dr. Sahu has and continues to provide expert witness services in a number of environmental areas discussed above in both state and Federal courts as well as before administrative bodies.
EXPERIENCE RECORD
2000-now Independent Consultant. Providing a variety of private sector (industrial companies, land development companies, law firms, etc.) public sector (such as the US Department of Justice) and public interest group clients with project management, air quality consulting, waste remediation and management consulting, as well as regulatory and engineering support consulting services.
1995-2000 Parsons ES, Associate, Senior Project Manager and Department Manager for Air Quality/Geosciences/Hazardous Waste Groups, Pasadena. Responsible for the management of a group of approximately 24 air quality and environmental professionals, 15 geoscience, and 10 hazardous waste professionals providing full- service consulting, project management, regulatory compliance and A/E design assistance in all areas.
Parsons ES, Manager for Air Source Testing Services. Responsible for the management of 8 individuals in the area of air source testing and air regulatory permitting projects located in Bakersfield, California.
2 1992-1995 Engineering-Science, Inc. Principal Engineer and Senior Project Manager in the air quality department. Responsibilities included multimedia regulatory compliance and permitting (including hazardous and nuclear materials), air pollution engineering (emissions from stationary and mobile sources, control of criteria and air toxics, dispersion modeling, risk assessment, visibility analysis, odor analysis), supervisory functions and project management.
1990-1992 Engineering-Science, Inc. Principal Engineer and Project Manager in the air quality department. Responsibilities included permitting, tracking regulatory issues, technical analysis, and supervisory functions on numerous air, water, and hazardous waste projects. Responsibilities also include client and agency interfacing, project cost and schedule control, and reporting to internal and external upper management regarding project status.
1989-1990 Kinetics Technology International, Corp. Development Engineer. Involved in thermal engineering R&D and project work related to low-NOx ceramic radiant burners, fired heater NOx reduction, SCR design, and fired heater retrofitting.
1988-1989 Heat Transfer Research, Inc. Research Engineer. Involved in the design of fired heaters, heat exchangers, air coolers, and other non-fired equipment. Also did research in the area of heat exchanger tube vibrations.
EDUCATION
1984-1988 Ph.D., Mechanical Engineering, California Institute of Technology (Caltech), Pasadena, CA.
1984 M. S., Mechanical Engineering, Caltech, Pasadena, CA.
1978-1983 B. Tech (Honors), Mechanical Engineering, Indian Institute of Technology (IIT) Kharagpur, India
TEACHING EXPERIENCE
Caltech "Thermodynamics," Teaching Assistant, California Institute of Technology, 1983, 1987. "Air Pollution Control," Teaching Assistant, California Institute of Technology, 1985. "Caltech Secondary and High School Saturday Program," - taught various mathematics (algebra through calculus) and science (physics and chemistry) courses to high school students, 1983-1989. "Heat Transfer," - taught this course in the Fall and Winter terms of 1994-1995 in the Division of Engineering and Applied Science. “Thermodynamics and Heat Transfer,” Fall and Winter Terms of 1996-1997.
U.C. Riverside, Extension
3 "Toxic and Hazardous Air Contaminants," University of California Extension Program, Riverside, California. Various years since 1992. "Prevention and Management of Accidental Air Emissions," University of California Extension Program, Riverside, California. Various years since 1992. "Air Pollution Control Systems and Strategies," University of California Extension Program, Riverside, California, Summer 1992-93, Summer 1993-1994. "Air Pollution Calculations," University of California Extension Program, Riverside, California, Fall 1993-94, Winter 1993-94, Fall 1994-95. "Process Safety Management," University of California Extension Program, Riverside, California. Various years since 1992-2010. "Process Safety Management," University of California Extension Program, Riverside, California, at SCAQMD, Spring 1993-94. "Advanced Hazard Analysis - A Special Course for LEPCs," University of California Extension Program, Riverside, California, taught at San Diego, California, Spring 1993-1994. “Advanced Hazardous Waste Management” University of California Extension Program, Riverside, California. 2005.
Loyola Marymount University
"Fundamentals of Air Pollution - Regulations, Controls and Engineering," Loyola Marymount University, Dept. of Civil Engineering. Various years since 1993. "Air Pollution Control," Loyola Marymount University, Dept. of Civil Engineering, Fall 1994. “Environmental Risk Assessment,” Loyola Marymount University, Dept. of Civil Engineering. Various years since 1998. “Hazardous Waste Remediation” Loyola Marymount University, Dept. of Civil Engineering. Various years since 2006.
University of Southern California
"Air Pollution Controls," University of Southern California, Dept. of Civil Engineering, Fall 1993, Fall 1994. "Air Pollution Fundamentals," University of Southern California, Dept. of Civil Engineering, Winter 1994.
University of California, Los Angeles
"Air Pollution Fundamentals," University of California, Los Angeles, Dept. of Civil and Environmental Engineering, Spring 1994, Spring 1999, Spring 2000, Spring 2003, Spring 2006, Spring 2007, Spring 2008, Spring 2009.
International Programs
“Environmental Planning and Management,” 5 week program for visiting Chinese delegation, 1994. “Environmental Planning and Management,” 1 day program for visiting Russian delegation, 1995.
4 “Air Pollution Planning and Management,” IEP, UCR, Spring 1996. “Environmental Issues and Air Pollution,” IEP, UCR, October 1996.
PROFESSIONAL AFFILIATIONS AND HONORS
President of India Gold Medal, IIT Kharagpur, India, 1983.
Member of the Alternatives Assessment Committee of the Grand Canyon Visibility Transport Commission, established by the Clean Air Act Amendments of 1990, 1992-present.
American Society of Mechanical Engineers: Los Angeles Section Executive Committee, Heat Transfer Division, and Fuels and Combustion Technology Division, 1987-present.
Air and Waste Management Association, 1989-present.
PROFESSIONAL CERTIFICATIONS
EIT, California (# XE088305), 1993.
REA I, California (#07438), 2000.
Certified Permitting Professional, South Coast AQMD (#C8320), since 1993.
QEP, Institute of Professional Environmental Practice, since 2000.
CEM, State of Nevada (#EM-1699). Expiration 10/07/2019.
5 ATTACHMENT B – LIST OF PUBLICATIONS AND PRESENTATIONS
PUBLICATIONS (PARTIAL LIST)
"Physical Properties and Oxidation Rates of Chars from Bituminous Coals," with Y.A. Levendis, R.C. Flagan and G.R. Gavalas, Fuel, 67, 275-283 (1988).
"Char Combustion: Measurement and Analysis of Particle Temperature Histories," with R.C. Flagan, G.R. Gavalas and P.S. Northrop, Comb. Sci. Tech. 60, 215-230 (1988).
"On the Combustion of Bituminous Coal Chars," PhD Thesis, California Institute of Technology (1988).
"Optical Pyrometry: A Powerful Tool for Coal Combustion Diagnostics," J. Coal Quality, 8, 17-22 (1989).
"Post-Ignition Transients in the Combustion of Single Char Particles," with Y.A. Levendis, R.C.Flagan and G.R. Gavalas, Fuel, 68, 849-855 (1989).
"A Model for Single Particle Combustion of Bituminous Coal Char." Proc. ASME National Heat Transfer Conference, Philadelphia, HTD-Vol. 106, 505-513 (1989).
"Discrete Simulation of Cenospheric Coal-Char Combustion," with R.C. Flagan and G.R.Gavalas, Combust. Flame, 77, 337-346 (1989).
"Particle Measurements in Coal Combustion," with R.C. Flagan, in "Combustion Measurements" (ed. N. Chigier), Hemisphere Publishing Corp. (1991).
"Cross Linking in Pore Structures and Its Effect on Reactivity," with G.R. Gavalas in preparation.
"Natural Frequencies and Mode Shapes of Straight Tubes," Proprietary Report for Heat Transfer Research Institute, Alhambra, CA (1990).
"Optimal Tube Layouts for Kamui SL-Series Exchangers," with K. Ishihara, Proprietary Report for Kamui Company Limited, Tokyo, Japan (1990).
"HTRI Process Heater Conceptual Design," Proprietary Report for Heat Transfer Research Institute, Alhambra, CA (1990).
"Asymptotic Theory of Transonic Wind Tunnel Wall Interference," with N.D. Malmuth and others, Arnold Engineering Development Center, Air Force Systems Command, USAF (1990).
"Gas Radiation in a Fired Heater Convection Section," Proprietary Report for Heat Transfer Research Institute, College Station, TX (1990). "Heat Transfer and Pressure Drop in NTIW Heat Exchangers," Proprietary Report for Heat Transfer Research Institute, College Station, TX (1991).
"NOx Control and Thermal Design," Thermal Engineering Tech Briefs, (1994).
“From Puchase of Landmark Environmental Insurance to Remediation: Case Study in Henderson, Nevada,” with Robin E. Bain and Jill Quillin, presented at the AQMA Annual Meeting, Florida, 2001.
“The Jones Act Contribution to Global Warming, Acid Rain and Toxic Air Contaminants,” with Charles W. Botsford, presented at the AQMA Annual Meeting, Florida, 2001.
6 PRESENTATIONS (PARTIAL LIST)
"Pore Structure and Combustion Kinetics - Interpretation of Single Particle Temperature-Time Histories," with P.S. Northrop, R.C. Flagan and G.R. Gavalas, presented at the AIChE Annual Meeting, New York (1987).
"Measurement of Temperature-Time Histories of Burning Single Coal Char Particles," with R.C. Flagan, presented at the American Flame Research Committee Fall International Symposium, Pittsburgh, (1988).
"Physical Characterization of a Cenospheric Coal Char Burned at High Temperatures," with R.C. Flagan and G.R. Gavalas, presented at the Fall Meeting of the Western States Section of the Combustion Institute, Laguna Beach, California (1988).
"Control of Nitrogen Oxide Emissions in Gas Fired Heaters - The Retrofit Experience," with G. P. Croce and R. Patel, presented at the International Conference on Environmental Control of Combustion Processes (Jointly sponsored by the American Flame Research Committee and the Japan Flame Research Committee), Honolulu, Hawaii (1991).
"Air Toxics - Past, Present and the Future," presented at the Joint AIChE/AAEE Breakfast Meeting at the AIChE 1991 Annual Meeting, Los Angeles, California, November 17-22 (1991).
"Air Toxics Emissions and Risk Impacts from Automobiles Using Reformulated Gasolines," presented at the Third Annual Current Issues in Air Toxics Conference, Sacramento, California, November 9-10 (1992).
"Air Toxics from Mobile Sources," presented at the Environmental Health Sciences (ESE) Seminar Series, UCLA, Los Angeles, California, November 12, (1992).
"Kilns, Ovens, and Dryers - Present and Future," presented at the Gas Company Air Quality Permit Assistance Seminar, Industry Hills Sheraton, California, November 20, (1992).
"The Design and Implementation of Vehicle Scrapping Programs," presented at the 86th Annual Meeting of the Air and Waste Management Association, Denver, Colorado, June 12, 1993.
"Air Quality Planning and Control in Beijing, China," presented at the 87th Annual Meeting of the Air and Waste Management Association, Cincinnati, Ohio, June 19-24, 1994.
7 ATTACHMENT C – PREVIOUS EXPERT WITNESS TESTIMONY
Expert Litigation Support
Occasions where Dr. Sahu has provided Written or Oral testimony before Congress:
1. In July 2012, provided expert written and oral testimony to the House Subcommittee on Energy and the Environment, Committee on Science, Space, and Technology at a Hearing entitled “Hitting the Ethanol Blend Wall – Examining the Science on E15.”
Matters for which Dr. Sahu has provided affidavits and expert reports include:
2. Affidavit for Rocky Mountain Steel Mills, Inc. located in Pueblo Colorado – dealing with the technical uncertainties associated with night-time opacity measurements in general and at this steel mini-mill. 3. Expert reports and depositions (2/28/2002 and 3/1/2002; 12/2/2003 and 12/3/2003; 5/24/2004) on behalf of the United States in connection with the Ohio Edison NSR Cases. United States, et al. v. Ohio Edison Co., et al., C2-99-1181 (Southern District of Ohio). 4. Expert reports and depositions (5/23/2002 and 5/24/2002) on behalf of the United States in connection with the Illinois Power NSR Case. United States v. Illinois Power Co., et al., 99-833-MJR (Southern District of Illinois). 5. Expert reports and depositions (11/25/2002 and 11/26/2002) on behalf of the United States in connection with the Duke Power NSR Case. United States, et al. v. Duke Energy Corp., 1:00-CV-1262 (Middle District of North Carolina). 6. Expert reports and depositions (10/6/2004 and 10/7/2004; 7/10/2006) on behalf of the United States in connection with the American Electric Power NSR Cases. United States, et al. v. American Electric Power Service Corp., et al., C2-99-1182, C2-99-1250 (Southern District of Ohio). 7. Affidavit (March 2005) on behalf of the Minnesota Center for Environmental Advocacy and others in the matter of the Application of Heron Lake BioEnergy LLC to construct and operate an ethanol production facility – submitted to the Minnesota Pollution Control Agency. 8. Expert Report and Deposition (10/31/2005 and 11/1/2005) on behalf of the United States in connection with the East Kentucky Power Cooperative NSR Case. United States v. East Kentucky Power Cooperative, Inc., 5:04-cv-00034-KSF (Eastern District of Kentucky). 9. Affidavits and deposition on behalf of Basic Management Inc. (BMI) Companies in connection with the BMI vs. USA remediation cost recovery Case. 10. Expert Report on behalf of Penn Future and others in the Cambria Coke plant permit challenge in Pennsylvania. 11. Expert Report on behalf of the Appalachian Center for the Economy and the Environment and others in the Western Greenbrier permit challenge in West Virginia. 12. Expert Report, deposition (via telephone on January 26, 2007) on behalf of various Montana petitioners (Citizens Awareness Network (CAN), Women’s Voices for the Earth (WVE) and the Clark Fork Coalition (CFC)) in the Thompson River Cogeneration LLC Permit No. 3175-04 challenge. 13. Expert Report and deposition (2/2/07) on behalf of the Texas Clean Air Cities Coalition at the Texas State Office of Administrative Hearings (SOAH) in the matter of the permit challenges to TXU Project Apollo’s eight new proposed PRB-fired PC boilers located at seven TX sites. 14. Expert Testimony (July 2007) on behalf of the Izaak Walton League of America and others in connection with the acquisition of power by Xcel Energy from the proposed Gascoyne Power Plant – at the State of Minnesota, Office of Administrative Hearings for the Minnesota PUC (MPUC No. E002/CN-06-1518; OAH No. 12-2500- 17857-2).
8 15. Affidavit (July 2007) Comments on the Big Cajun I Draft Permit on behalf of the Sierra Club – submitted to the Louisiana DEQ. 16. Expert Report and Deposition (12/13/2007) on behalf of Commonwealth of Pennsylvania – Dept. of Environmental Protection, State of Connecticut, State of New York, and State of New Jersey (Plaintiffs) in connection with the Allegheny Energy NSR Case. Plaintiffs v. Allegheny Energy Inc., et al., 2:05cv0885 (Western District of Pennsylvania). 17. Expert Reports and Pre-filed Testimony before the Utah Air Quality Board on behalf of Sierra Club in the Sevier Power Plant permit challenge. 18. Expert Report and Deposition (October 2007) on behalf of MTD Products Inc., in connection with General Power Products, LLC v MTD Products Inc., 1:06 CVA 0143 (Southern District of Ohio, Western Division) . 19. Expert Report and Deposition (June 2008) on behalf of Sierra Club and others in the matter of permit challenges (Title V: 28.0801-29 and PSD: 28.0803-PSD) for the Big Stone II unit, proposed to be located near Milbank, South Dakota. 20. Expert Reports, Affidavit, and Deposition (August 15, 2008) on behalf of Earthjustice in the matter of air permit challenge (CT-4631) for the Basin Electric Dry Fork station, under construction near Gillette, Wyoming before the Environmental Quality Council of the State of Wyoming. 21. Affidavits (May 2010/June 2010 in the Office of Administrative Hearings))/Declaration and Expert Report (November 2009 in the Office of Administrative Hearings) on behalf of NRDC and the Southern Environmental Law Center in the matter of the air permit challenge for Duke Cliffside Unit 6. Office of Administrative Hearing Matters 08 EHR 0771, 0835 and 0836 and 09 HER 3102, 3174, and 3176 (consolidated). 22. Declaration (August 2008), Expert Report (January 2009), and Declaration (May 2009) on behalf of Southern Alliance for Clean Energy in the matter of the air permit challenge for Duke Cliffside Unit 6. Southern Alliance for Clean Energy et al., v. Duke Energy Carolinas, LLC, Case No. 1:08-cv-00318-LHT-DLH (Western District of North Carolina, Asheville Division). 23. Declaration (August 2008) on behalf of the Sierra Club in the matter of Dominion Wise County plant MACT.us 24. Expert Report (June 2008) on behalf of Sierra Club for the Green Energy Resource Recovery Project, MACT Analysis. 25. Expert Report (February 2009) on behalf of Sierra Club and the Environmental Integrity Project in the matter of the air permit challenge for NRG Limestone’s proposed Unit 3 in Texas. 26. Expert Report (June 2009) on behalf of MTD Products, Inc., in the matter of Alice Holmes and Vernon Holmes v. Home Depot USA, Inc., et al. 27. Expert Report (August 2009) on behalf of Sierra Club and the Southern Environmental Law Center in the matter of the air permit challenge for Santee Cooper’s proposed Pee Dee plant in South Carolina). 28. Statements (May 2008 and September 2009) on behalf of the Minnesota Center for Environmental Advocacy to the Minnesota Pollution Control Agency in the matter of the Minnesota Haze State Implementation Plans. 29. Expert Report (August 2009) on behalf of Environmental Defense, in the matter of permit challenges to the proposed Las Brisas coal fired power plant project at the Texas State Office of Administrative Hearings (SOAH). 30. Expert Report and Rebuttal Report (September 2009) on behalf of the Sierra Club, in the matter of challenges to the proposed Medicine Bow Fuel and Power IGL plant in Cheyenne, Wyoming. 31. Expert Report (December 2009) and Rebuttal reports (May 2010 and June 2010) on behalf of the United States in connection with the Alabama Power Company NSR Case. United States v. Alabama Power Company, CV- 01-HS-152-S (Northern District of Alabama, Southern Division).
9 32. Pre-filed Testimony (October 2009) on behalf of Environmental Defense and others, in the matter of challenges to the proposed White Stallion Energy Center coal fired power plant project at the Texas State Office of Administrative Hearings (SOAH). 33. Pre-filed Testimony (July 2010) and Written Rebuttal Testimony (August 2010) on behalf of the State of New Mexico Environment Department in the matter of Proposed Regulation 20.2.350 NMAC – Greenhouse Gas Cap and Trade Provisions, No. EIB 10-04 (R), to the State of New Mexico, Environmental Improvement Board. 34. Expert Report (August 2010) and Rebuttal Expert Report (October 2010) on behalf of the United States in connection with the Louisiana Generating NSR Case. United States v. Louisiana Generating, LLC, 09-CV100- RET-CN (Middle District of Louisiana) – Liability Phase. 35. Declaration (August 2010), Reply Declaration (November 2010), Expert Report (April 2011), Supplemental and Rebuttal Expert Report (July 2011) on behalf of the United States in the matter of DTE Energy Company and Detroit Edison Company (Monroe Unit 2). United States of America v. DTE Energy Company and Detroit Edison Company, Civil Action No. 2:10-cv-13101-BAF-RSW (Eastern District of Michigan). 36. Expert Report and Deposition (August 2010) as well as Affidavit (September 2010) on behalf of Kentucky Waterways Alliance, Sierra Club, and Valley Watch in the matter of challenges to the NPDES permit issued for the Trimble County power plant by the Kentucky Energy and Environment Cabinet to Louisville Gas and Electric, File No. DOW-41106-047. 37. Expert Report (August 2010), Rebuttal Expert Report (September 2010), Supplemental Expert Report (September 2011), and Declaration (November 2011) on behalf of Wild Earth Guardians in the matter of opacity exceedances and monitor downtime at the Public Service Company of Colorado (Xcel)’s Cherokee power plant. No. 09-cv-1862 (District of Colorado). 38. Written Direct Expert Testimony (August 2010) and Affidavit (February 2012) on behalf of Fall-Line Alliance for a Clean Environment and others in the matter of the PSD Air Permit for Plant Washington issued by Georgia DNR at the Office of State Administrative Hearing, State of Georgia (OSAH-BNR-AQ-1031707-98- WALKER). 39. Deposition (August 2010) on behalf of Environmental Defense, in the matter of the remanded permit challenge to the proposed Las Brisas coal fired power plant project at the Texas State Office of Administrative Hearings (SOAH). 40. Expert Report, Supplemental/Rebuttal Expert Report, and Declarations (October 2010, November 2010, September 2012) on behalf of New Mexico Environment Department (Plaintiff-Intervenor), Grand Canyon Trust and Sierra Club (Plaintiffs) in the matter of Plaintiffs v. Public Service Company of New Mexico (PNM), Civil No. 1:02-CV-0552 BB/ATC (ACE) (District of New Mexico). 41. Expert Report (October 2010) and Rebuttal Expert Report (November 2010) (BART Determinations for PSCo Hayden and CSU Martin Drake units) to the Colorado Air Quality Commission on behalf of Coalition of Environmental Organizations. 42. Expert Report (November 2010) (BART Determinations for TriState Craig Units, CSU Nixon Unit, and PRPA Rawhide Unit) to the Colorado Air Quality Commission on behalf of Coalition of Environmental Organizations. 43. Declaration (November 2010) on behalf of the Sierra Club in connection with the Martin Lake Station Units 1, 2, and 3. Sierra Club v. Energy Future Holdings Corporation and Luminant Generation Company LLC, Case No. 5:10-cv-00156-DF-CMC (Eastern District of Texas, Texarkana Division). 44. Pre-Filed Testimony (January 2011) and Declaration (February 2011) to the Georgia Office of State Administrative Hearings (OSAH) in the matter of Minor Source HAPs status for the proposed Longleaf Energy Associates power plant (OSAH-BNR-AQ-1115157-60-HOWELLS) on behalf of the Friends of the Chattahoochee and the Sierra Club). 45. Declaration (February 2011) in the matter of the Draft Title V Permit for RRI Energy MidAtlantic Power Holdings LLC Shawville Generating Station (Pennsylvania), ID No. 17-00001 on behalf of the Sierra Club.
10 46. Expert Report (March 2011), Rebuttal Expert Report (June 2011) on behalf of the United States in United States of America v. Cemex, Inc., Civil Action No. 09-cv-00019-MSK-MEH (District of Colorado). 47. Declaration (April 2011) and Expert Report (July 16, 2012) in the matter of the Lower Colorado River Authority (LCRA)’s Fayette (Sam Seymour) Power Plant on behalf of the Texas Campaign for the Environment. Texas Campaign for the Environment v. Lower Colorado River Authority, Civil Action No. 4:11-cv-00791 (Southern District of Texas, Houston Division). 48. Declaration (June 2011) on behalf of the Plaintiffs MYTAPN in the matter of Microsoft-Yes, Toxic Air Pollution-No (MYTAPN) v. State of Washington, Department of Ecology and Microsoft Corporation Columbia Data Center to the Pollution Control Hearings Board, State of Washington, Matter No. PCHB No. 10-162. 49. Expert Report (June 2011) on behalf of the New Hampshire Sierra Club at the State of New Hampshire Public Utilities Commission, Docket No. 10-261 – the 2010 Least Cost Integrated Resource Plan (LCIRP) submitted by the Public Service Company of New Hampshire (re. Merrimack Station Units 1 and 2). 50. Declaration (August 2011) in the matter of the Sandy Creek Energy Associates L.P. Sandy Creek Power Plant on behalf of Sierra Club and Public Citizen. Sierra Club, Inc. and Public Citizen, Inc. v. Sandy Creek Energy Associates, L.P., Civil Action No. A-08-CA-648-LY (Western District of Texas, Austin Division). 51. Expert Report (October 2011) on behalf of the Defendants in the matter of John Quiles and Jeanette Quiles et al. v. Bradford-White Corporation, MTD Products, Inc., Kohler Co., et al., Case No. 3:10-cv-747 (TJM/DEP) (Northern District of New York). 52. Declaration (October 2011) on behalf of the Plaintiffs in the matter of American Nurses Association et. al. (Plaintiffs), v. US EPA (Defendant), Case No. 1:08-cv-02198-RMC (US District Court for the District of Columbia). 53. Declaration (February 2012) and Second Declaration (February 2012) in the matter of Washington Environmental Council and Sierra Club Washington State Chapter v. Washington State Department of Ecology and Western States Petroleum Association, Case No. 11-417-MJP (Western District of Washington). 54. Expert Report (March 2012) and Supplemental Expert Report (November 2013) in the matter of Environment Texas Citizen Lobby, Inc and Sierra Club v. ExxonMobil Corporation et al., Civil Action No. 4:10-cv-4969 (Southern District of Texas, Houston Division). 55. Declaration (March 2012) in the matter of Center for Biological Diversity, et al. v. United States Environmental Protection Agency, Case No. 11-1101 (consolidated with 11-1285, 11-1328 and 11-1336) (US Court of Appeals for the District of Columbia Circuit). 56. Declaration (March 2012) in the matter of Sierra Club v. The Kansas Department of Health and Environment, Case No. 11-105,493-AS (Holcomb power plant) (Supreme Court of the State of Kansas). 57. Declaration (March 2012) in the matter of the Las Brisas Energy Center Environmental Defense Fund et al., v. Texas Commission on Environmental Quality, Cause No. D-1-GN-11-001364 (District Court of Travis County, Texas, 261st Judicial District). 58. Expert Report (April 2012), Supplemental and Rebuttal Expert Report (July 2012), and Supplemental Rebuttal Expert Report (August 2012) on behalf of the states of New Jersey and Connecticut in the matter of the Portland Power plant State of New Jersey and State of Connecticut (Intervenor-Plaintiff) v. RRI Energy Mid- Atlantic Power Holdings et al., Civil Action No. 07-CV-5298 (JKG) (Eastern District of Pennsylvania). 59. Declaration (April 2012) in the matter of the EPA’s EGU MATS Rule, on behalf of the Environmental Integrity Project. 60. Expert Report (August 2012) on behalf of the United States in connection with the Louisiana Generating NSR Case. United States v. Louisiana Generating, LLC, 09-CV100-RET-CN (Middle District of Louisiana) – Harm Phase. 61. Declaration (September 2012) in the Matter of the Application of Energy Answers Incinerator, Inc. for a Certificate of Public Convenience and Necessity to Construct a 120 MW Generating Facility in Baltimore City, Maryland, before the Public Service Commission of Maryland, Case No. 9199.
11 62. Expert Report (October 2012) on behalf of the Appellants (Robert Concilus and Leah Humes) in the matter of Robert Concilus and Leah Humes v. Commonwealth of Pennsylvania Department of Environmental Protection and Crawford Renewable Energy, before the Commonwealth of Pennsylvania Environmental Hearing Board, Docket No. 2011-167-R. 63. Expert Report (October 2012), Supplemental Expert Report (January 2013), and Affidavit (June 2013) in the matter of various Environmental Petitioners v. North Carolina DENR/DAQ and Carolinas Cement Company, before the Office of Administrative Hearings, State of North Carolina. 64. Pre-filed Testimony (October 2012) on behalf of No-Sag in the matter of the North Springfield Sustainable Energy Project before the State of Vermont, Public Service Board. 65. Pre-filed Testimony (November 2012) on behalf of Clean Wisconsin in the matter of Application of Wisconsin Public Service Corporation for Authority to Construct and Place in Operation a New Multi-Pollutant Control Technology System (ReACT) for Unit 3 of the Weston Generating Station, before the Public Service Commission of Wisconsin, Docket No. 6690-CE-197. 66. Expert Report (February 2013) on behalf of Petitioners in the matter of Credence Crematory, Cause No. 12-A- J-4538 before the Indiana Office of Environmental Adjudication. 67. Expert Report (April 2013), Rebuttal report (July 2013), and Declarations (October 2013, November 2013) on behalf of the Sierra Club in connection with the Luminant Big Brown Case. Sierra Club v. Energy Future Holdings Corporation and Luminant Generation Company LLC, Civil Action No. 6:12-cv-00108-WSS (Western District of Texas, Waco Division). 68. Declaration (April 2013) on behalf of Petitioners in the matter of Sierra Club, et al., (Petitioners) v Environmental Protection Agency et al. (Resppondents), Case No., 13-1112, (Court of Appeals, District of Columbia Circuit). 69. Expert Report (May 2013) and Rebuttal Expert Report (July 2013) on behalf of the Sierra Club in connection with the Luminant Martin Lake Case. Sierra Club v. Energy Future Holdings Corporation and Luminant Generation Company LLC, Civil Action No. 5:10-cv-0156-MHS-CMC (Eastern District of Texas, Texarkana Division). 70. Declaration (August 2013) on behalf of A. J. Acosta Company, Inc., in the matter of A. J. Acosta Company, Inc., v. County of San Bernardino, Case No. CIVSS803651. 71. Comments (October 2013) on behalf of the Washington Environmental Council and the Sierra Club in the matter of the Washington State Oil Refinery RACT (for Greenhouse Gases), submitted to the Washington State Department of Ecology, the Northwest Clean Air Agency, and the Puget Sound Clean Air Agency. 72. Statement (November 2013) on behalf of various Environmental Organizations in the matter of the Boswell Energy Center (BEC) Unit 4 Environmental Retrofit Project, to the Minnesota Public Utilities Commission, Docket No. E-015/M-12-920. 73. Expert Report (December 2013) on behalf of the United States in United States of America v. Ameren Missouri, Civil Action No. 4:11-cv-00077-RWS (Eastern District of Missouri, Eastern Division). 74. Expert Testimony (December 2013) on behalf of the Sierra Club in the matter of Public Service Company of New Hampshire Merrimack Station Scrubber Project and Cost Recovery, Docket No. DE 11-250, to the State of New Hampshire Public Utilities Commission. 75. Expert Report (January 2014) on behalf of Baja, Inc., in Baja, Inc., v. Automotive Testing and Development Services, Inc. et. al, Civil Action No. 8:13-CV-02057-GRA (District of South Carolina, Anderson/Greenwood Division). 76. Declaration (March 2014) on behalf of the Center for International Environmental Law, Chesapeake Climate Action Network, Friends of the Earth, Pacific Environment, and the Sierra Club (Plaintiffs) in the matter of Plaintiffs v. the Export-Import Bank (Ex-Im Bank) of the United States, Civil Action No. 13-1820 RC (District Court for the District of Columbia).
12 77. Declaration (April 2014) on behalf of Respondent-Intervenors in the matter of Mexichem Specialty Resins Inc., et al., (Petitioners) v Environmental Protection Agency et al., Case No., 12-1260 (and Consolidated Case Nos. 12-1263, 12-1265, 12-1266, and 12-1267), (Court of Appeals, District of Columbia Circuit). 78. Direct Prefiled Testimony (June 2014) on behalf of the Michigan Environmental Council and the Sierra Club in the matter of the Application of DTE Electric Company for Authority to Implement a Power Supply Cost Recovery (PSCR) Plan in its Rate Schedules for 2014 Metered Jurisdictional Sales of Electricity, Case No. U- 17319 (Michigan Public Service Commission). 79. Expert Report (June 2014) on behalf of ECM Biofilms in the matter of the US Federal Trade Commission (FTC) v. ECM Biofilms (FTC Docket #9358). 80. Direct Prefiled Testimony (August 2014) on behalf of the Michigan Environmental Council and the Sierra Club in the matter of the Application of Consumers Energy Company for Authority to Implement a Power Supply Cost Recovery (PSCR) Plan in its Rate Schedules for 2014 Metered Jurisdictional Sales of Electricity, Case No. U-17317 (Michigan Public Service Commission). 81. Declaration (July 2014) on behalf of Public Health Intervenors in the matter of EME Homer City Generation v. US EPA (Case No. 11-1302 and consolidated cases) relating to the lifting of the stay entered by the Court on December 30, 2011 (US Court of Appeals for the District of Columbia). 82. Expert Report (September 2014), Rebuttal Expert Report (December 2014) and Supplemental Expert Report (March 2015) on behalf of Plaintiffs in the matter of Sierra Club and Montana Environmental Information Center (Plaintiffs) v. PPL Montana LLC, Avista Corporation, Puget Sound Energy, Portland General Electric Company, Northwestern Corporation, and Pacificorp (Defendants), Civil Action No. CV 13-32-BLG-DLC- JCL (US District Court for the District of Montana, Billings Division). 83. Expert Report (November 2014) on behalf of Niagara County, the Town of Lewiston, and the Villages of Lewiston and Youngstown in the matter of CWM Chemical Services, LLC New York State Department of Environmental Conservation (NYSDEC) Permit Application Nos.: 9-2934-00022/00225, 9-2934-00022/00231, 9-2934-00022/00232, and 9-2934-00022/00249 (pending). 84. Declaration (January 2015) relating to Startup/Shutdown in the MATS Rule (EPA Docket ID No. EPA-HQ- OAR-2009-0234) on behalf of the Environmental Integrity Project. 85. Pre-filed Direct Testimony (March 2015), Supplemental Testimony (May 2015), and Surrebuttal Testimony (December 2015) on behalf of Friends of the Columbia Gorge in the matter of the Application for a Site Certificate for the Troutdale Energy Center before the Oregon Energy Facility Siting Council. 86. Brief of Amici Curiae Experts in Air Pollution Control and Air Quality Regulation in Support of the Respondents, On Writs of Certiorari to the US Court of Appeals for the District of Columbia, No. 14-46, 47, 48. Michigan et. al., (Petitioners) v. EPA et. al., Utility Air Regulatory Group (Petitioners) v. EPA et. al., National Mining Association et. al., (Petitioner) v. EPA et. al., (Supreme Court of the United States). 87. Expert Report (March 2015) and Rebuttal Expert Report (January 2016) on behalf of Plaintiffs in the matter of Conservation Law Foundation v. Broadrock Gas Services LLC, Rhode Island LFG GENCO LLC, and Rhode Island Resource Recovery Corporation (Defendants), Civil Action No. 1:13-cv-00777-M-PAS (US District Court for the District of Rhode Island). 88. Declaration (April 2015) relating to various Technical Corrections for the MATS Rule (EPA Docket ID No. EPA-HQ-OAR-2009-0234) on behalf of the Environmental Integrity Project. 89. Direct Prefiled Testimony (May 2015) on behalf of the Michigan Environmental Council, the Natural Resources Defense Council, and the Sierra Club in the matter of the Application of DTE Electric Company for Authority to Increase its Rates, Amend its Rate Schedules and Rules Governing the Distribution and Supply of Electric Energy and for Miscellaneous Accounting Authority, Case No. U-17767 (Michigan Public Service Commission). 90. Expert Report (July 2015) and Rebuttal Expert Report (July 2015) on behalf of Plaintiffs in the matter of Northwest Environmental Defense Center et. al., v. Cascade Kelly Holdings LLC, d/b/a Columbia Pacific Bio- Refinery, and Global Partners LP (Defendants), Civil Action No. 3:14-cv-01059-SI (US District Court for the District of Oregon, Portland Division).
13 91. Declaration (August 2015, Docket No. 1570376) in support of “Opposition of Respondent-Intervenors American Lung Association, et. al., to Tri-State Generation’s Emergency Motion;” Declaration (September 2015, Docket No. 1574820) in support of “Joint Motion of the State, Local Government, and Public Health Respondent-Intervenors for Remand Without Vacatur;” Declaration (October 2015) in support of “Joint Motion of the State, Local Government, and Public Health Respondent-Intervenors to State and Certain Industry Petitioners’ Motion to Govern, White Stallion Energy Center, LLC v. US EPA, Case No. 12-1100 (US Court of Appeals for the District of Columbia). 92. Declaration (September 2015) in support of the Draft Title V Permit for Dickerson Generating Station (Proposed Permit No 24-031-0019) on behalf of the Environmental Integrity Project. 93. Expert Report (Liability Phase) (December 2015) and Rebuttal Expert Report (February 2016) on behalf of Plaintiffs in the matter of Natural Resources Defense Council, Inc., Sierra Club, Inc., Environmental Law and Policy Center, and Respiratory Health Association v. Illinois Power Resources LLC, and Illinois Power Resources Generating LLC (Defendants), Civil Action No. 1:13-cv-01181 (US District Court for the Central District of Illinois, Peoria Division). 94. Declaration (December 2015) in support of the Petition to Object to the Title V Permit for Morgantown Generating Station (Proposed Permit No 24-017-0014) on behalf of the Environmental Integrity Project. 95. Expert Report (November 2015) on behalf of Appellants in the matter of Sierra Club, et al. v. Craig W. Butler, Director of Ohio Environmental Protection Agency et al., ERAC Case No. 14-256814. 96. Affidavit (January 2016) on behalf of Bridgewatch Detroit in the matter of Bridgewatch Detroit v. Waterfront Petroleum Terminal Co., and Waterfront Terminal Holdings, LLC., in the Circuit Court for the County of Wayne, State of Michigan. 97. Expert Report (February 2016) and Rebuttal Expert Report (July 2016) on behalf of the challengers in the matter of the Delaware Riverkeeper Network, Clean Air Council, et. al., vs. Commonwealth of Pennsylvania Department of Environmental Protection and R. E. Gas Development LLC regarding the Geyer well site before the Pennsylvania Environmental Hearing Board. 98. Direct Testimony (May 2016) in the matter of Tesoro Savage LLC Vancouver Energy Distribution Terminal, Case No. 15-001 before the State of Washington Energy Facility Site Evaluation Council. 99. Declaration (June 2016) relating to deficiencies in air quality analysis for the proposed Millenium Bulk Terminal, Port of Longview, Washington. 100. Declaration (December 2016) relating to EPA’s refusal to set limits on PM emissions from coal-fired power plants that reflect pollution reductions achievable with fabric filters on behalf of Environmental Integrity Project, Clean Air Council, Chesapeake Climate Action Network, Downwinders at Risk represented by Earthjustice in the matter of ARIPPA v EPA, Case No. 15-1180. (D.C. Circuit Court of Appeals). 101. Expert Report (January 2017) on the Environmental Impacts Analysis associated with the Huntley and Huntley Poseidon Well Pad on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 102. Expert Report (January 2017) on the Environmental Impacts Analysis associated with the Apex Energy Backus Well Pad on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 103. Expert Report (January 2017) on the Environmental Impacts Analysis associated with the Apex Energy Drakulic Well Pad on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 104. Expert Report (January 2017) on the Environmental Impacts Analysis associated with the Apex Energy Deutsch Well Pad on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 105. Affidavit (February 2017) pertaining to deficiencies water discharge compliance issues at the Wood River Refinery in the matter of People of the State of Illinois (Plaintiff) v. Phillips 66 Company, ConocoPhillips Company, WRB Refining LP (Defendants), Case No. 16-CH-656, (Circuit Court for the Third Judicial Circuit, Madison County, Illinois).
14 106. Expert Report (March 2017) on behalf of the Plaintiff pertaining to non-degradation analysis for waste water discharges from a power plant in the matter of Sierra Club (Plaintiff) v. Pennsylvania Department of Environmental Protection (PADEP) and Lackawanna Energy Center, Docket No. 2016-047-L (consolidated), (Pennsylvania Environmental Hearing Board). 107. Expert Report (March 2017) on behalf of the Plaintiff pertaining to air emissions from the Heritage incinerator in East Liverpool, Ohio in the matter of Save our County (Plaintiff) v. Heritage Thermal Services, Inc. (Defendant), Case No. 4:16-CV-1544-BYP, (US District Court for the Northern District of Ohio, Eastern Division). 108. Rebuttal Expert Report (June 2017) on behalf of Plaintiffs in the matter of Casey Voight and Julie Voight (Plaintiffs) v Coyote Creek Mining Company LLC (Defendant), Civil Action No. 1:15-CV-00109 (US District Court for the District of North Dakota, Western Division). 109. Expert Affidavit (August 2017) and Penalty/Remedy Expert Affidavit (October 2017) on behalf of Plaintiff in the matter of Wildearth Guardians (Plaintiff) v Colorado Springs Utility Board (Defendant,) Civil Action No. 1:15-cv-00357-CMA-CBS (US District Court for the District of Colorado). 110. Expert Report (August 2017) on behalf of Appellant in the matter of Patricia Ann Troiano (Appellant) v. Upper Burrell Township Zoning Hearing Board (Appellee), Court of Common Pleas of Westmoreland County, Pennsylvania, Civil Division. 111. Expert Report (October 2017), Supplemental Expert Report (October 2017), and and Rebuttal Expert Report (November 2017) on behalf of Defendant in the matter of Oakland Bulk and Oversized Terminal (Plaintiff) v City of Oakland (Defendant,) Civil Action No. 3:16-cv-07014-VC (US District Court for the Northern District of California, San Francisco Division). 112. Declaration (December 2017) on behalf of the Environmental Integrity Project in the matter of permit issuance for ATI Flat Rolled Products Holdings, Breckenridge, PA to the Allegheny County Health Department. 113. Expert Report (Harm Phase) (January 2018) on behalf of Plaintiffs in the matter of Natural Resources Defense Council, Inc., Sierra Club, Inc., and Respiratory Health Association v. Illinois Power Resources LLC, and Illinois Power Resources Generating LLC (Defendants), Civil Action No. 1:13-cv-01181 (US District Court for the Central District of Illinois, Peoria Division).
Occasions where Dr. Sahu has provided oral testimony in depositions, at trial or in similar proceedings include the following:
114. Deposition on behalf of Rocky Mountain Steel Mills, Inc. located in Pueblo, Colorado – dealing with the manufacture of steel in mini-mills including methods of air pollution control and BACT in steel mini-mills and opacity issues at this steel mini-mill. 115. Trial Testimony (February 2002) on behalf of Rocky Mountain Steel Mills, Inc. in Denver District Court. 116. Trial Testimony (February 2003) on behalf of the United States in the Ohio Edison NSR Cases, United States, et al. v. Ohio Edison Co., et al., C2-99-1181 (Southern District of Ohio). 117. Trial Testimony (June 2003) on behalf of the United States in the Illinois Power NSR Case, United States v. Illinois Power Co., et al., 99-833-MJR (Southern District of Illinois). 118. Deposition (10/20/2005) on behalf of the United States in connection with the Cinergy NSR Case. United States, et al. v. Cinergy Corp., et al., IP 99-1693-C-M/S (Southern District of Indiana). 119. Oral Testimony (August 2006) on behalf of the Appalachian Center for the Economy and the Environment re. the Western Greenbrier plant, WV before the West Virginia DEP. 120. Oral Testimony (May 2007) on behalf of various Montana petitioners (Citizens Awareness Network (CAN), Women’s Voices for the Earth (WVE) and the Clark Fork Coalition (CFC)) re. the Thompson River Cogeneration plant before the Montana Board of Environmental Review.
15 121. Oral Testimony (October 2007) on behalf of the Sierra Club re. the Sevier Power Plant before the Utah Air Quality Board. 122. Oral Testimony (August 2008) on behalf of the Sierra Club and Clean Water re. Big Stone Unit II before the South Dakota Board of Minerals and the Environment. 123. Oral Testimony (February 2009) on behalf of the Sierra Club and the Southern Environmental Law Center re. Santee Cooper Pee Dee units before the South Carolina Board of Health and Environmental Control. 124. Oral Testimony (February 2009) on behalf of the Sierra Club and the Environmental Integrity Project re. NRG Limestone Unit 3 before the Texas State Office of Administrative Hearings (SOAH) Administrative Law Judges. 125. Deposition (July 2009) on behalf of MTD Products, Inc., in the matter of Alice Holmes and Vernon Holmes v. Home Depot USA, Inc., et al. 126. Deposition (October 2009) on behalf of Environmental Defense and others, in the matter of challenges to the proposed Coleto Creek coal fired power plant project at the Texas State Office of Administrative Hearings (SOAH). 127. Deposition (October 2009) on behalf of Environmental Defense, in the matter of permit challenges to the proposed Las Brisas coal fired power plant project at the Texas State Office of Administrative Hearings (SOAH). 128. Deposition (October 2009) on behalf of the Sierra Club, in the matter of challenges to the proposed Medicine Bow Fuel and Power IGL plant in Cheyenne, Wyoming. 129. Deposition (October 2009) on behalf of Environmental Defense and others, in the matter of challenges to the proposed Tenaska coal fired power plant project at the Texas State Office of Administrative Hearings (SOAH). (April 2010). 130. Oral Testimony (November 2009) on behalf of the Environmental Defense Fund re. the Las Brisas Energy Center before the Texas State Office of Administrative Hearings (SOAH) Administrative Law Judges. 131. Deposition (December 2009) on behalf of Environmental Defense and others, in the matter of challenges to the proposed White Stallion Energy Center coal fired power plant project at the Texas State Office of Administrative Hearings (SOAH). 132. Oral Testimony (February 2010) on behalf of the Environmental Defense Fund re. the White Stallion Energy Center before the Texas State Office of Administrative Hearings (SOAH) Administrative Law Judges. 133. Deposition (June 2010) on behalf of the United States in connection with the Alabama Power Company NSR Case. United States v. Alabama Power Company, CV-01-HS-152-S (Northern District of Alabama, Southern Division). 134. Trial Testimony (September 2010) on behalf of Commonwealth of Pennsylvania – Dept. of Environmental Protection, State of Connecticut, State of New York, State of Maryland, and State of New Jersey (Plaintiffs) in connection with the Allegheny Energy NSR Case in US District Court in the Western District of Pennsylvania. Plaintiffs v. Allegheny Energy Inc., et al., 2:05cv0885 (Western District of Pennsylvania). 135. Oral Direct and Rebuttal Testimony (September 2010) on behalf of Fall-Line Alliance for a Clean Environment and others in the matter of the PSD Air Permit for Plant Washington issued by Georgia DNR at the Office of State Administrative Hearing, State of Georgia (OSAH-BNR-AQ-1031707-98-WALKER). 136. Oral Testimony (September 2010) on behalf of the State of New Mexico Environment Department in the matter of Proposed Regulation 20.2.350 NMAC – Greenhouse Gas Cap and Trade Provisions, No. EIB 10-04 (R), to the State of New Mexico, Environmental Improvement Board. 137. Oral Testimony (October 2010) on behalf of the Environmental Defense Fund re. the Las Brisas Energy Center before the Texas State Office of Administrative Hearings (SOAH) Administrative Law Judges. 138. Oral Testimony (November 2010) regarding BART for PSCo Hayden, CSU Martin Drake units before the Colorado Air Quality Commission on behalf of the Coalition of Environmental Organizations.
16 139. Oral Testimony (December 2010) regarding BART for TriState Craig Units, CSU Nixon Unit, and PRPA Rawhide Unit) before the Colorado Air Quality Commission on behalf of the Coalition of Environmental Organizations. 140. Deposition (December 2010) on behalf of the United States in connection with the Louisiana Generating NSR Case. United States v. Louisiana Generating, LLC, 09-CV100-RET-CN (Middle District of Louisiana). 141. Deposition (February 2011 and January 2012) on behalf of Wild Earth Guardians in the matter of opacity exceedances and monitor downtime at the Public Service Company of Colorado (Xcel)’s Cherokee power plant. No. 09-cv-1862 (D. Colo.). 142. Oral Testimony (February 2011) to the Georgia Office of State Administrative Hearings (OSAH) in the matter of Minor Source HAPs status for the proposed Longleaf Energy Associates power plant (OSAH-BNR-AQ- 1115157-60-HOWELLS) on behalf of the Friends of the Chattahoochee and the Sierra Club). 143. Deposition (August 2011) on behalf of the United States in United States of America v. Cemex, Inc., Civil Action No. 09-cv-00019-MSK-MEH (District of Colorado). 144. Deposition (July 2011) and Oral Testimony at Hearing (February 2012) on behalf of the Plaintiffs MYTAPN in the matter of Microsoft-Yes, Toxic Air Pollution-No (MYTAPN) v. State of Washington, Department of Ecology and Microsoft Corporation Columbia Data Center to the Pollution Control Hearings Board, State of Washington, Matter No. PCHB No. 10-162. 145. Oral Testimony at Hearing (March 2012) on behalf of the United States in connection with the Louisiana Generating NSR Case. United States v. Louisiana Generating, LLC, 09-CV100-RET-CN (Middle District of Louisiana). 146. Oral Testimony at Hearing (April 2012) on behalf of the New Hampshire Sierra Club at the State of New Hampshire Public Utilities Commission, Docket No. 10-261 – the 2010 Least Cost Integrated Resource Plan (LCIRP) submitted by the Public Service Company of New Hampshire (re. Merrimack Station Units 1 and 2). 147. Oral Testimony at Hearing (November 2012) on behalf of Clean Wisconsin in the matter of Application of Wisconsin Public Service Corporation for Authority to Construct and Place in Operation a New Multi- Pollutant Control Technology System (ReACT) for Unit 3 of the Weston Generating Station, before the Public Service Commission of Wisconsin, Docket No. 6690-CE-197. 148. Deposition (March 2013) in the matter of various Environmental Petitioners v. North Carolina DENR/DAQ and Carolinas Cement Company, before the Office of Administrative Hearings, State of North Carolina. 149. Deposition (August 2013) on behalf of the Sierra Club in connection with the Luminant Big Brown Case. Sierra Club v. Energy Future Holdings Corporation and Luminant Generation Company LLC, Civil Action No. 6:12-cv-00108-WSS (Western District of Texas, Waco Division). 150. Deposition (August 2013) on behalf of the Sierra Club in connection with the Luminant Martin Lake Case. Sierra Club v. Energy Future Holdings Corporation and Luminant Generation Company LLC, Civil Action No. 5:10-cv-0156-MHS-CMC (Eastern District of Texas, Texarkana Division). 151. Deposition (February 2014) on behalf of the United States in United States of America v. Ameren Missouri, Civil Action No. 4:11-cv-00077-RWS (Eastern District of Missouri, Eastern Division). 152. Trial Testimony (February 2014) in the matter of Environment Texas Citizen Lobby, Inc and Sierra Club v. ExxonMobil Corporation et al., Civil Action No. 4:10-cv-4969 (Southern District of Texas, Houston Division). 153. Trial Testimony (February 2014) on behalf of the Sierra Club in connection with the Luminant Big Brown Case. Sierra Club v. Energy Future Holdings Corporation and Luminant Generation Company LLC, Civil Action No. 6:12-cv-00108-WSS (Western District of Texas, Waco Division). 154. Deposition (June 2014) and Trial (August 2014) on behalf of ECM Biofilms in the matter of the US Federal Trade Commission (FTC) v. ECM Biofilms (FTC Docket #9358). 155. Deposition (February 2015) on behalf of Plaintiffs in the matter of Sierra Club and Montana Environmental Information Center (Plaintiffs) v. PPL Montana LLC, Avista Corporation, Puget Sound Energy, Portland General Electric Company, Northwestern Corporation, and Pacificorp (Defendants), Civil Action No. CV 13- 32-BLG-DLC-JCL (US District Court for the District of Montana, Billings Division).
17 156. Oral Testimony at Hearing (April 2015) on behalf of Niagara County, the Town of Lewiston, and the Villages of Lewiston and Youngstown in the matter of CWM Chemical Services, LLC New York State Department of Environmental Conservation (NYSDEC) Permit Application Nos.: 9-2934-00022/00225, 9-2934-00022/00231, 9-2934-00022/00232, and 9-2934-00022/00249 (pending). 157. Deposition (August 2015) on behalf of Plaintiff in the matter of Conservation Law Foundation (Plaintiff) v. Broadrock Gas Services LLC, Rhode Island LFG GENCO LLC, and Rhode Island Resource Recovery Corporation (Defendants), Civil Action No. 1:13-cv-00777-M-PAS (US District Court for the District of Rhode Island). 158. Testimony at Hearing (August 2015) on behalf of the Sierra Club in the matter of Amendments to 35 Illinois Administrative Code Parts 214, 217, and 225 before the Illinois Pollution Control Board, R15-21. 159. Deposition (May 2015) on behalf of Plaintiffs in the matter of Northwest Environmental Defense Center et. al., (Plaintiffs) v. Cascade Kelly Holdings LLC, d/b/a Columbia Pacific Bio-Refinery, and Global Partners LP (Defendants), Civil Action No. 3:14-cv-01059-SI (US District Court for the District of Oregon, Portland Division). 160. Trial Testimony (October 2015) on behalf of Plaintiffs in the matter of Northwest Environmental Defense Center et. al., (Plaintiffs) v. Cascade Kelly Holdings LLC, d/b/a Columbia Pacific Bio-Refinery, and Global Partners LP (Defendants), Civil Action No. 3:14-cv-01059-SI (US District Court for the District of Oregon, Portland Division). 161. Deposition (April 2016) on behalf of the Plaintiffs in UNatural Resources Defense Council, Respiratory Health Association, and Sierra Club (Plaintiffs) v. Illinois Power Resources LLC and Illinois Power Resources Generation LLC (Defendants), Civil Action No. 1:13-cv-01181 (Central District of Illinois, Peoria Division). 162. Trial Testimony at Hearing (July 2016) in the matter of Tesoro Savage LLC Vancouver Energy Distribution Terminal, Case No. 15-001 before the State of Washington Energy Facility Site Evaluation Council. 163. Trial Testimony (December 2016) on behalf of the challengers in the matter of the Delaware Riverkeeper Network, Clean Air Council, et. al., vs. Commonwealth of Pennsylvania Department of Environmental Protection and R. E. Gas Development LLC regarding the Geyer well site before the Pennsylvania Environmental Hearing Board. 164. Trial Testimony (July-August 2016) on behalf of the United States in United States of America v. Ameren Missouri, Civil Action No. 4:11-cv-00077-RWS (Eastern District of Missouri, Eastern Division). 165. Trial Testimony (January 2017) on the Environmental Impacts Analysis associated with the Huntley and Huntley Poseidon Well Pad Hearing on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 166. Trial Testimony (January 2017) on the Environmental Impacts Analysis associated with the Apex energy Backus Well Pad Hearing on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 167. Trial Testimony (January 2017) on the Environmental Impacts Analysis associated with the Apex energy Drakulic Well Pad Hearing on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 168. Trial Testimony (January 2017) on the Environmental Impacts Analysis associated with the Apex energy Deutsch Well Pad Hearing on behalf citizens in the matter of the special exception use Zoning Hearing Board of Penn Township, Westmoreland County, Pennsylvania. 169. Deposition Testimony (July 2017) on behalf of Plaintiffs in the matter of Casey Voight and Julie Voight v Coyote Creek Mining Company LLC (Defendant) Civil Action No. 1:15-CV-00109 (US District Court for the District of North Dakota, Western Division). 170. Deposition Testimony (November 2017) on behalf of Defendant in the matter of Oakland Bulk and Oversized Terminal (Plaintiff) v City of Oakland (Defendant,) Civil Action No. 3:16-cv-07014-VC (US District Court for the Northern District of California, San Francisco Division).
18 171. Deposition Testimony (December 2017) on behalf of Plaintiff in the matter of Wildearth Guardians (Plaintiff) v Colorado Springs Utility Board (Defendant) Civil Action No. 1:15-cv-00357-CMA-CBS (US District Court for the District of Colorado). 172. Deposition Testimony (January 2018) in the matter of National Parks Conservation Association (NPCA) v. State of Washington Department of Ecology and British Petroleum (BP) before the Washington Pollution Control Hearing Board, Case No. 17-055. 173. Trial Testimony (January 2018) on behalf of Defendant in the matter of Oakland Bulk and Oversized Terminal (Plaintiff) v City of Oakland (Defendant,) Civil Action No. 3:16-cv-07014-VC (US District Court for the Northern District of California, San Francisco Division).
19 SELC Comments on Marshall NPDES Permit Modification #NC0004987 – February 13, 2018
ATTACHMENT 2
Michigan DEQ’s Decision on DECO-Belle River Permit Modification Request & Fact Sheet 1/3/2018 Sierra Club Mail - NPDES Permit No. MI0038172 DECO-Belle River Plt Modification
Casey Roberts
NPDES Permit No. MI0038172 DECO-Belle River Plt Modification
Buckmaster, Tarek (DEQ)
Dear Ms. Roberts, Mr. Cmar, Mr. Salim, and Ms. Strong:
Thank you for your comments submitted via email and MiWaters in regard to the permit modification proposed for the DTE Electric Company’s Belle River Power Plant. The MDEQ proposed to modify this permit in accordance with the Final EPA Rule in 40 CFR 423, entitled “Postponement of Certain Compliance Dates for the Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category,” effective September 18, 2017. Specifically, the MDEQ proposed to postpone the interim compliance dates associated with Part I.A.10 – Schedule for Elimination of Bottom Ash Transport Water Discharge, and to revise the final compliance date of that schedule, from December 31, 2021, to December 31, 2023. This proposed revision to Part I.A.10. of the permit would also necessitate a similar revision to Part I.A.11. – Bottom Ash Transport Water Discharge Prohibition.
Your comments expressed opposition to the proposed revisions to Part I.A.10. – Schedule for Elimination of Bottom Ash Transport Water Discharge, and Part I.A.11. – Bottom Ash Transport Water Discharge Prohibition. Specifically, commenters requested that the MDEQ reinstate the final compliance date of December 31, 2021, and that the interim deadlines associated with that final compliance date also be reinstated.
Based on the number of comments received during the public notice period for this proposed permit modification, and after careful consideration of these comments and consistent with further evaluation of EPA’s postponement rule, the MDEQ has agreed to reinstate the final compliance dates of both Part I.A.10. and Part I.A.11., to December 31, 2021, and the final modified permit, issued today, now reflects these changes. Please see the attached PDF copy of the permit.
As you know, the EPA’s postponement rule delays, for a period of two years, the earliest compliance date for the new, more stringent, BAT effluent limitations for bottom ash transport water. This rule postpones the earliest compliance date from November 1, 2018, to November 1, 2020. Given this, the MDEQ believes that postponement of the interim compliance dates associated with Part I.A.10. of the subject permit is both justified and necessary to avoid interim compliance dates that are earlier than the new earliest compliance date set forth in EPA’s postponement rule. Note that the only interim compliance date retained in the schedule within the subject permit is July 1, 2021. That date has been retained because it is later than the new earliest compliance date established by EPA’s postponement rule.
There was also a request to extend the public comment period and hold a public hearing on the permit modification. The MDEQ has determined that a public hearing is not necessary based on restoration of the final compliance date of December 31, 2021. Similarly, the MDEQ has determined that an extension to the public comment period is not warranted.
https://mail.google.com/mail/u/0/?ui=2&ik=5d8050484f&jsver=1QCYKmIiAi4.en.&view=pt&msg=1609e7598ed2f4c4&q=from%3A%20BUCKMASTERT… 1/2 1/3/2018 Sierra Club Mail - NPDES Permit No. MI0038172 DECO-Belle River Plt Modification In closing, the MDEQ believes the permit modification and change to the schedule fully complies with applicable state and federal law. Thank you again for your comments and for your willingness to share your concerns with us. We greatly value your participation in this process and believe that it resulted in a better permit. If you have any questions about the subject permit as revised, please do not hesitate to contact me.
Sincerely,
Tarek Buckmaster
Lakes Erie and Huron Permits Unit
Permits Section, Water Resources Division
Michigan Department of Environmental Quality
517-230-4233 New Number
NPDES Permit - FINAL_DECO-Belle River Plt.pdf 310K
https://mail.google.com/mail/u/0/?ui=2&ik=5d8050484f&jsver=1QCYKmIiAi4.en.&view=pt&msg=1609e7598ed2f4c4&q=from%3A%20BUCKMASTERT… 2/2 Permit No. MI0038172
FACT SHEET
PERMITTEE / DESIGNATED SITE NAME: DTE Electric Company / DECO-Belle River Plt
COUNTY: St. Clair
DESCRIPTION OF EXISTING WASTEWATER TREATMENT FACILITIES
Bottom ash transport water, nonchemical metal cleaning wastewater, and low-volume wastewater discharged through Monitoring Point 001B and/or Monitoring Point 002A are treated via sedimentation in ash settling basins prior to discharge through Outfall 001 and/or Outfall 002, respectively. Groundwater, storm water, and combustion residual leachate from the Range Road Site discharged through Monitoring Point 001B are treated via settling. Storm water and low-volume wastewater consisting of oily wastewater discharged through Monitoring Point 001C are treated via an oil/water separator skimming system prior to discharge through Outfall 001.
MAP OF DISCHARGE LOCATION
Facility Coordinates: Latitude 42.773888, Longitude -82.495833
RECEIVING WATER
The St. Clair River is protected for agricultural uses, navigation, industrial water supply, public water supply in areas with designated public water supply intakes, cold-water fish, other indigenous aquatic life and wildlife, partial body contact recreation, total body contact recreation (May through October), and fish consumption. The receiving stream flows used to develop effluent limitations are a 95 percent exceedance flow of 130,000 cfs, a harmonic mean flow of 209,000 cfs, and a 90-day, 10-year low flow of 185,000 cfs.
MIXING ZONE
For toxic pollutants, the volume of the St. Clair River used to ensure that effluent limitations are sufficiently stringent to meet Water Quality Standards is 25 percent of the applicable design flow of the receiving stream.
For other pollutants, the volume of the St. Clair River used to ensure that effluent limitations are sufficiently stringent to meet Water Quality Standards is the applicable design flow of the receiving stream.
RECEIVING WATER
The unnamed tributary of the Belle River (known locally as Webster Drain) is protected for agricultural uses, navigation, industrial water supply, public water supply in areas with designated public water supply intakes, warm-water fish, other indigenous aquatic life and wildlife, partial body contact recreation, total body contact recreation (May through October), and fish consumption.
The receiving stream flows used to develop effluent limitations are a 95 percent exceedance flow of 0 cfs, a harmonic mean flow of 0.2 cfs, and a 90-day, 10-year low flow of 0.1 cfs.
MIXING ZONE
For toxic pollutants, the volume of the unnamed tributary of the Belle River used to ensure that effluent limitations are sufficiently stringent to meet Water Quality Standards is 25 percent of the applicable design flow of the receiving stream.
For other pollutants, the volume of the unnamed tributary of the Belle River used to ensure that effluent limitations are sufficiently stringent to meet Water Quality Standards is the applicable design flow of the receiving stream.
EXISTING EFFLUENT QUALITY: (from DMR data from October 2010 to October 2015)
MONITORING POINT 001A
Minimum Maximum Maximum Maximum Parameter Units Daily Monthly 7-Day Daily
Total Residual Chlorine ------140 ug/l
Chlorination Duration ------159 min/day
Flow --- 821.6 --- 959.1 MGD pH 7.5 ------8.7 S.U.
Temperature ------96 °F
Thermal Discharge --- 5,928 ------MBTU/hr
Total Copper ------12 ug/l
Total Mercury --- 0.85 ------ng/l MONITORING POINT 001B
Minimum Maximum Maximum Maximum Parameter Units Daily Monthly 7-Day Daily
Flow --- 9.85 --- 15.09 MGD
Oil & Grease --- 5 --- 13 mg/l
Total Suspended Solids --- 18 --- 77 mg/l
MONITORING POINT 001C
Minimum Maximum Maximum Maximum Parameter Units Daily Monthly 7-Day Daily
Flow --- 0.135 --- 0.385 MGD
Oil & Grease --- 7 --- 36 mg/l
Total Suspended Solids --- 16 --- 44 mg/l
MONITORING POINT 002A - No discharge occurred during the period.
PROPOSED EFFLUENT LIMITATIONS: (see draft permit)
BASIS FOR PROPOSED EFFLUENT LIMITATIONS: (see Basis for Decision Memo)
ADDITIONAL INFORMATION
The Department proposes to modify the facility’s previously issued permit in accordance with the Final EPA Rule in 40 CFR 423, entitled “Postponement of Certain Compliance Dates for the Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category,” dated September 12, 2017. Specifically, the Department proposes to postpone the interim compliance dates associated with the Schedule for Elimination of Bottom Ash Transport Water Discharge, and to revise the final compliance date of that schedule to December 31, 2023.
The EPA projects that it will formulate revised effluent limitation guidelines for bottom ash transport water by fall of 2020. It is the Department’s intention to revise the facility’s compliance schedule again at that time, consistent with the revised effluent limitation guidelines and applicable facility design, procurement, and construction.
The revised compliance schedule proposed for the facility is excerpted below from the proposed draft permit:
10. Schedule for Elimination of Bottom Ash Transport Water Discharge The permittee shall eliminate the discharge of bottom ash transport water to surface waters of the state in accordance with the following schedule. All submittals shall be to the Department. In accordance with the Final EPA Rule in 40 CFR 423, entitled “Postponement of Certain Compliance Dates for the Effluent Limitation Guidelines and Standards for the Steam Electric Power Generating Point Source Category,” dated September 12, 2017, the dates listed in items a. through e., below, are now postponed by this permit modification. The EPA projects that it will formulate revised effluent limitation guidelines for bottom ash transport water by fall of 2020. It is the Department’s intention to revise this entire compliance schedule at that time consistent with the revised regulation and applicable design, procurement and construction, based on the revised effluent limitation guidelines.
a On or before (date postponed and not enforceable under this permit), the permittee shall submit the completed technology feasibility evaluation and the approach selected to achieve elimination of the discharge of bottom ash transport water to surface waters of the state at Monitoring Point 001A, Monitoring Point 001B, and Monitoring Point 002A, specified in Part I.A.1., Part I.A.2., and Part I.A.4., respectively. The submittal shall include an assessment of the ability to design and build the selected approach.
b On or before (date postponed and not enforceable under this permit), the permittee shall commence the engineering design process for the selected approach.
c. On or before (date postponed and not enforceable under this permit), the permittee shall submit a status report that describes the ongoing engineering design process, and the procurement/fabrication processes, of the selected approach.
a On or before (date postponed and not enforceable under this permit), the permittee shall commence construction for the selected approach.
b On or before (date postponed and not enforceable under this permit), the permittee shall submit a status report of the ongoing construction, and specify any impediments to meeting the final compliance date.
c On or before December 31, 2023, the permittee shall eliminate the discharge of bottom ash transport water to surface waters of the state at Monitoring Point 001A, Monitoring Point 001B, and Monitoring Point 002A, specified in Part I.A.1., Part I.A.2., and Part I.A.4., respectively.
This proposed revision will also necessitate a revision to the permit condition entitled Bottom Ash Transport Water Discharge Prohibition. The proposed revision is excerpted below from the proposed draft permit:
11. Bottom Ash Transport Water Discharge Prohibition The EPA projects that it will formulate revised effluent limitation guidelines for bottom ash transport water by fall of 2020. It is the Department’s intention to revise the entire compliance schedule of the bottom ash transport water discharge prohibition listed above at that time, consistent with the revised regulation and applicable design, procurement and construction, based on the revised effluent limitation guidelines.
Beginning on December 31, 2023, the permittee is prohibited from discharging newly generated bottom ash transport water from any outfall.
No changes to numeric limits are proposed as part of this permitting action.
REGISTER OF INTERESTED PERSONS
Any person interested in a particular application, or group of applications, may leave his/her name, address, and telephone number as part of the file for an application. The list of names will be maintained as a means for persons with an interest in an application to contact others with similar interests.
PUBLIC COMMENT
Persons wishing to submit comments or request a public hearing should go to https://miwaters.deq.state.mi.us, select ‘Public Notice Search,’ search for this public notice by entering the permit number or site name into the search field, click ‘Search’, click ‘View,’ click ‘Add Comment,’ enter information into the fields, and then click ‘Submit.’ Comments or objections to the draft permit received between November 17, 2017, and December 18, 2017, will be considered in the final decision to issue the permit.
Any person may request the Department of Environmental Quality (Department) to hold a public hearing on the application. The request should include specific reasons for the request, indicating which portions of the application or draft permit constitute the need for a hearing. If submitted comments indicate significant public interest in the application or if useful information may be produced, the Department, at its discretion, may hold a public hearing on the application.
If a public hearing is scheduled, public notice of the hearing will be provided at least 30 days in advance. The hearing will normally be held in the vicinity of the discharge. The Department will consider comments made at the hearing when making its final determinations on the permit. Inquiries should be directed to Christine Aiello, Permits Section, Water Resources Division, Department of Environmental Quality, P.O. Box 30458, Lansing, Michigan 48909-7958; telephone: 517-284-5582; or e-mail: [email protected]. PUBLIC NOTICE
Date: November 17, 2017 Permit No.: MI0038172 Designated Site Name: DECO-Belle River Plt
The Department of Environmental Quality (DEQ), Water Resources Division (WRD), proposes to modify a permit previously issued to the DTE Electric Company for the Belle River Power Plant, 4505 King Road, China, MI 48054. The applicant discharges noncontact cooling water, treated process wastewater, treated groundwater, treated combustion residual leachate, and storm water to the St. Clair River and an unnamed tributary of the Belle River (known locally as Webster Drain).
The draft permit includes the following modifications to the previously-issued permit: The permit conditions entitled Schedule for Elimination of Bottom Ash Transport Water Discharge (Part I.A.10.) and Bottom Ash Transport Water Discharge Prohibition (Part I.A.11.) have been revised.
Copies of the public notice, fact sheet, basis for decision memo, draft permit, and EPA 40 CFR Part 423 Final Rule: Postponement of Certain Compliance Dates for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, may be obtained via the Internet at https://miwaters.deq.state.mi.us (select ‘Public Notice Search,’ enter the permit number or site name in the search field, and then click ‘Search’), or at the WRD's Southeast Michigan District Office located at 27700 Donald Court, Warren, MI 48092-2793, telephone: 586- 753-3700.
Persons wishing to submit comments or request a public hearing should go to https://miwaters.deq.state.mi.us, select ‘Public Notice Search,’ search for this public notice, click ‘View,’ click ‘Add Comment,’ enter information into the fields, and then click ‘Submit.’ Inquiries should be directed to Christine Aiello, Permits Section, WRD, DEQ, P.O. Box 30458, Lansing, Michigan 48909-7958; telephone: 517-284-5582; or e-mail: [email protected].
Comments or objections to the draft permit received by December 18, 2017, will be considered in the final decision to issue the permit.