February 13, 2018 VIA First Class U.S. Mail and Electronic Mail Mr. Sergei

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. 2 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.”) 3 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.

Load more