Addressing Coal Ash and NPDES Permit Regulation: Information and Chronology

In 2014, as part of Governor Pat McCrory’s plan to address the more than 60 year old problem of coal ash, the N.C. Department of Environment and Natural Resources (DENR) directed Duke Energy to apply for National Pollutant Discharge Elimination System (NPDES) permit modifications or renewals to address issues at the utility’s 14 coal-fired electric plants. DENR, under the direction of Governor McCrory, took action within the first few months of McCrory’s administration to address the long-ignored contamination issues at coal ash storage facilities statewide. DENR intensified its efforts in the wake of the coal ash spill in February 2014, after which the agency identified, sampled, catalogued and analyzed all discharges at coal ash storage facilities to determine their cause.

The NPDES permitting program ensures that existing wastewater and stormwater discharges, some of which are necessary to ensure the integrity of the dams surrounding coal ash ponds, do not compromise the water quality in our lakes and rivers. DENR has worked closely with the Environmental Protection Agency (EPA) to develop the draft NPDES permit program to protect water quality at the sites by cataloguing, monitoring and sampling all discharges, including seeps. This regulatory oversight is a critical step to ensure environmentally safe closure of every coal ash pond in the state.

Decanting Issues
Some coal ash ponds require the safe removal of surface water, otherwise known as decanting, before the excavation and removal process can begin. DENR must receive approval from the EPA, which is currently reviewing information about the decanting process, before the utility can move forward in the pond closure process. DENR has formally requested the EPA expedite its review.

In September 2014, the EPA requested DENR withdraw its approval of decanting operations at Duke Energy coal ash facilities in an effort to obtain additional data and information about the process. In response to the EPA’s request, DENR recently provided new information and sampling data to accompany the request for written approval of decanting operations. DENR is requesting that the EPA review newly collected information and sampling data in hopes that the federal agency will reconsider its position that previously halted North Carolina’s decanting operations. The EPA has issued approval of similar operations in South Carolina and Kentucky.

NPDES Permitting
The N.C. Department of Water Resources (DWR) directed Duke Energy to apply for NPDES permit modifications or renewals to address issues at the company's 14 coal-fired electric plants. As a division within DENR, DWR is responsible for administering North Carolina's NPDES Permitting and Compliance Program, which is a critical step to the safe closure of each coal ash pond in the state. Documents relating to NPDES applications are posted on the DWR website. In an effort to document actions related to the issuance of these critical permits, staff members have assembled a timeline (below) of DENR’s NPDES permitting actions.

NPDES Permitting Issues Chronology
May 16, 2014 – Incomplete Riverbend stormwater application received.
Note: The application was found to be incomplete, which delayed drafting of the permit.
June 6, 2014 – Stormwater monitoring data received for Riverbend facility.
June 26, 2014 – Additional stormwater information requested for Riverbend facility.
July 9, 2014 - Initial stormwater draft permit and fact sheet sent to EPA for Riverbend facility.
July 15, 2014 - Additional stormwater information received for Riverbend facility.
July 30, 2014 - Additional stormwater information requested for Riverbend facility.
Note: The application was found to be incomplete, which delayed drafting of the permit.
Aug. 19, 2014 - Additional stormwater information received for Riverbend facility.
Aug. 21, 2014 - Conference Call with EPA on wastewater and stormwater permit for Riverbend facility.
Aug. 28, 2014 – Letter sent to Mark McIntire from Jeff Poupart, stating our interpretation that the lowering of free water above the interstitial layer in ash ponds (i.e. decanting) was already contemplated by the issued NPDES permits as a normal operation mode under the essential maintenance provision.
Sept. 10, 2014 – EPA Region IV sends letter to DENR recommending that DENR withdraw Aug. 28 letter and revoke permission granted for decanting operation.
Sept. 15 and Oct. 30, 2014 - Additional information on outfall at Riverbend received.
Sept. 16, 2014 – EPA asks for condition for stratification testing in coal ash ponds in letter.
Sept. 19, 2014 – At EPA’s request DENR/DWR withdrew Aug. 28 decanting letter sent to Duke Energy.
Oct. 1, 2014 - Conference Call with EPA on wastewater permits for Riverbend, Allen and Marshall facilities.
Oct. 2, 2014 - Second draft stormwater permits sent to EPA for Riverbend, Allen and Marshall facilities.
Oct. 14, 2014 – Video conference call between DENR, EPA and Duke Energy to discuss NPDES permitting and conditions, including independent stratification testing.
Oct. 15, 2014 – DWR received incomplete stratification data for application for Riverbend, Allen, and Marshall facilities.
Oct. 29, 2014 – Follow-up conference call with EPA held regarding Oct. 14 video conference call with Duke and EPA to discuss stratification process and timeline. Discussed decanting conditions and definition of essential maintenance in regards to dam safety.
Dec. 4 and 8, 2014 - Additional information received on outfall and stormwater monitoring for Riverbend, Allen and Marshall facilities.
Dec. 17, 2014 - Conference Call with EPA on stormwater permits. EPA indicated preliminary comments. Staff noted timeframe and need for responses to move forward with drafts and that this was the second draft that had been sent.
Dec. 18, 2014 – DWR received additional stratification testing data for first three facilities. DWR also received complete NPDES applications for Allen, Marshal and Riverbend facilities. Most of the application information that was received on Oct. 15, 2014 was incomplete.
Note: DWR cannot begin drafting the permits until Duke submits complete applications. For this reason, the first three draft permits were completed in February 2014 and publically noticed in March 2014.
Jan. 15, 2015 - Email sent to EPA requesting any comments on October draft of stormwater permit for Riverbend, Allen and Marshall facilities.
Jan. 21, 2015 - Conference call with EPA. EPA indicated comments on stormwater permit for Riverbend, Allen and Marshall facilities would come separately.
Feb. 4, 2015 - EPA comments on stormwater draft permit received.
Feb. 5, 2015 - Requested conference call with EPA.
Feb. 12, 2015 - Conference call with EPA on its Feb. 4 comments.
Feb. 25, 2015 - Response letter sent to EPA on their Feb. 4 comments. DENR noted its intent to move forward with draft permits (Riverbend, Marshal and Allen with same format).
March 6, 2015 - Draft stormwater permits posted to public notice for Riverbend, Allen and Marshall facilities.
Note: As chronicled above, DENR has been working with EPA Region IV on the framework for NPDES seep permitting and publically noticed the first batch of permits (Allen, Marshall and Riverbend). These permits were considered as a template for all future permits. The drafting of the permits was delayed several times because the EPA Region IV office had to conduct extensive consultations with EPA HQ since seep permitting in North Carolina could serve as a precedent for the rest of the nation and might have enormous implications for numerous coal ash facilities.
March 9, 2015 - Email to EPA includes website links to public notice and draft stormwater permits for Riverbend, Allen and Marshall facilities.
April 8, 2015 - Public hearing held in Lincolnton for Marshall Steam Station, Riverbend Steam Station and Allen Steam Station. The hearing was held to receive public comments on the NPDES draft permits for these facilities. Combined public hearing in Lincolnton for three DEMLR stormwater permits and three DWR wastewater permits.
April 13, 2015 - Combined public hearing in Sanford for the Brickhaven No. 2 Tract “A” and Colon mines to accept comments on two DEMLR mining permit modifications, two Division of Waste Management (DWM) structural fill permits and one DWR 401 water quality certification.
April 14, 2015 - Email to EPA on timeline and process for moving forward after comment period closes for Riverbend, Allen and Marshall facilities.
April 17, 2015 - EPA asks for copy of stormwater drafts again for Riverbend, Allen and Marshall facilities.
April 16, 2015 - Combined public hearing in Pittsboro for the Brickhaven No. 2 Tract “A” and Colon mines to accept comments on two Division of Energy, Mineral and Land Resources’ (DEMLR) mining permit modifications, two DWM structural fill permits and one DWR 401 water quality certification.
April 29, 2015 - Conference call with EPA on stormwater permits for Riverbend, Allen and Marshall facilities .
May 8th and May 13, 2015 - Emails to EPA to check review status for Riverbend, Allen and Marshall facilities.
May 11, 2015 - EPA comments received by letter on the first batch of NPDES stormwater permits (Riverbend, Allen, Marshall).
May 13, 2015 - Conference call with EPA on Riverbend, Allen and Marshall facilities stormwater permits.
May 13, 2015 - Email from EPA indicating EPA has no further comments on stormwater permits.
May 15, 2015 - Allen, Marshall and Riverbend stormwater NPDES permits issued.
May 22, 2015 - The Hearing Officer Report was completed for Riverbend facility’s wastewater permit.
May 26, 2015 - DENR sends a proposed draft final of Riverbend’s wastewater permit to EPA that incorporated all EPA and hearing officer recommendations on May 26, 2015.
June 4, 2015 - Draft permits sent to EPA for Asheville, Dan River and Cliffside facilities.
June 10, 2015 - The EPA sent a comment letter to DENR on the proposed draft final of the Riverbend permit on June 10, 2015. This letter requires Duke Energy to provide information necessary to distinguish which seeps at each site are percolated through the dams and jurisdictional waters. Separating these two different kinds of seeps is extremely difficult. There are several approaches being discussed to address the issue.
June 29, July 16, 2015 - Emails sent to EPA to check on review status.
July 23, 2015 - Email received from EPA, offering no further comments on final draft wastewater permit for Riverbend.
Aug. 2, 2015 - Public notice of Dan River and Cliffside draft stormwater permits.
Aug. 6, 2015 – DENR, U.S. Army Corps of Engineers, EPA meeting at Riverbend facility to determine classification of seep in response to EPA’s June 10 letter.
Aug. 6, 2015 -- Public hearing for L.V. Sutton Energy Complex held in Wilmington. The hearing was held to receive public comments on the draft NPDES permit for this facility.
Aug. 10, 2015 – Letter to EPA Region IV stating intention to issue letter to Duke Energy authorizing coal ash pond lowering activities.
Aug. 12, 2015 -- Public hearing in Pittsboro to accept comments on an additional DEMLR mining permit modification for the Brickhaven No. 2 Tract A mine.
Sept. 1, 2015 - The EPA scheduled a video conference with DENR and Duke Energy on Sept. 1, 2015, but this call was cancelled by EPA because they need another consultation with EPA’s headquarters.
Sept. 8, 2015 - Dan River public hearing held in Eden. There were no comments other than one from Duke Energy; only three people attended, outside of DENR staff. All other attendees were Duke Energy employees.

Decanting Issues
April 1, 2015 - Approval to Repair - Scope 4 Belews Creek Active Ash Basin Dam
June 4, 2015 - Revision Request (Scope 1 - Addendum 1) Weatherspoon 1979 Ash Pond Dam
Aug. 4, 2015 - Revision Request Scope 1 Addendum 1 Mayo Ash Pond Dam
Aug. 14, 2015 - Amendment to Riverbend Certificate of Approval to Repair Multiple Dams
Aug. 6, 2015 - Approval to Repair Riverbend Multiple Dams
• DEQ has several plans to repair dams at this time and will be approving several more plans in the near future that involves dewatering dams. Those necessary plans cannot be completed without dewatering dams.
• Federal CCR (Coal Combustion Residual) Rules and Regulations requires owners of coal ash impoundment dams to repair their dams if they don’t meet the required factor of safety for seismic or liquefaction. Duke Energy owns several coal ash impoundment dams where the riser structures do not meet the factor of safety for seismic under the CCR rules. Therefore, Duke Energy is proposing to replace all of those structures with new spillways. In order to complete that work, Duke Energy will have to dewater the structures. So, if EPA will not allow Duke Energy to dewater the structures, the company will not be able to comply with the CCR rules.
Sept. 24, 2015 - On September 11 DEQ sent to EPA Region IV an unsigned final NPDES permit for the Riverbend plant incorporating changes meant to satisfy their comment letter from June 10 and subsequent related video and conference calls.

On September 16 as a part of regular biweekly conference call with EPA staff, DEQ staff walked through the permit changes. EPA staff indicated that they would have written comments to us within a week.
On September 24 DEQ staff contacted EPA region 4 office staff indicated that permitting was at a dead stop in terms of providing comments back to NC. DEQ was told that the delay was due to how this single permit would relate to the joint enforcement action. The delay has the potential to make DEQs timely issuance of the permit impossible.
Draft of this permit was originally released on March 6. Previous versions of it had been discussed with EPA for several months prior. The draft permit which is awaiting federal review contains provisions allowing for ash pond lowering and reconfiguration for dewatering of removed ash.
Without reissuance environmental risk reduction and ultimate cleanup of the shuttered site will be delayed.

Oct. 9, 2015 - DEQ received correspondence from EPA concerning the newly proposed language addressing seeps which was included in the revised permit sent to Region 4 on September 11. EPA asked to discuss on conference call scheduled for October 22 to discuss next steps to resolve permitting issues as expeditiously as possible.

Dec. 14, 2015 - DEQ received correspondence from the EPA Region 4 office stating that the EPA agrees that the proposed decanting activity would be consistent with and can be carried out under that "duty to mitigate" conditions of the existing permits.