March 30, Judson Turner Director, Georgia Environmental Protection Division. Audra Dickson Chief, Wastewater Industrial Permitting Unit

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1 March 30, 2016 Judson Turner Director, Georgia Environmental Protection Division Audra Dickson Chief, Wastewater Industrial Permitting Unit Georgia Department of Natural Resources Environmental Protection Division 2 Martin Luther King Jr. Drive Suite 1152, East Tower Atlanta, GA Re: Incorporating the Effluent Limitation Guidelines for Steam Electric Power Plants into Outstanding NPDES Permits for Georgia s Coal-Fired Power Plants Dear Director Turner and Chief Dickson, On behalf of our thousands of supporters and members across the state, we write to you now because of the numerous coal-fired power plants in Georgia whose National Pollutant Discharge Elimination System ( NPDES ) permits are both expired and in need of revisions to

2 address requirements under the updated Effluent Limitation Guidelines ( ELGs ) for steam electric power plants. As explained in more detail below, these permits lag woefully behind what is necessary to protect rivers and drinking water in the state from mercury, arsenic, and other dangerous pollutants. The undersigned groups and our Georgia members therefore urge you to take action to: 1. Promptly issue draft NPDES permits and fact sheets for Georgia coal-fired power plants to require these plants to comply with the ELGs by November 1, 2018, unless you conclude that a later date is appropriate based on a well-documented justification that is consistent with regulatory guidance and with the public interest in securing vital water protections as soon as possible. 2. Take public comment for no less than 60 days on draft NPDES permits and fact sheets for Georgia coal-fired power plants that include compliance determinations for the ELGs. 3. Work with public health groups, environmental organizations, and other stakeholders, along with Georgia coal-fired power plant operators and fellow regulators to determine compliance obligations and timelines for other applicable regulatory requirements. We urge you to take action now to resolve these issues, and request the opportunity to meet with you to discuss a way forward. I. EDP Must Promptly Issue Draft NPDES Permits and Fact Sheets for Georgia s Coal-Fired Power Plants Incorporating the ELGs by the As Soon As Possible Compliance Deadline of November On November 3, 2015, the U.S. Environmental Protection Agency ( EPA ) published its updated ELGs for steam electric power plants, addressing decades worth of advances in water quality science and control technology. 1 Notably, [t]he final rule establishes the first nationally applicable limits on the amount of toxic metals and other harmful pollutants that steam electric power plants are allowed to discharge in several of their largest sources of wastewater. 2 In particular, these updated ELGs impose stringent technology-based effluent limitations on new and existing discharges of several common waste streams at coal-burning power plants, including fly and bottom ash transport water, and wastewater from flue gas desulfurization ( FGD ) systems. 3 These updated regulations became effective on January 4, 2016, and must be incorporated into any NPDES permit issued after that date. 4 As you are aware, NPDES permits have expired for all of Georgia s coal-fired power plants, which include: 1 U.S. EPA, Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 80 Fed. Reg. 67,837 (Nov. 3, 2015), codified at 40 C.F.R. part Fed. Reg. at 67, See 40 C.F.R Fed. Reg. at 67,838, 67,883.

3 Bowen (exp. 6/30/2012, owned by Georgia Power) Crisp (exp. 8/31/2010, owned by Crisp County Power Commission) Hammond (exp. 6/30/2012, owned by Georgia Power) McIntosh (exp. 5/31/2004, owned by Georgia Power) Scherer (exp. 11/30/2006, owned by Georgia Power) Wansley (exp. 8/31/2011, owned by Georgia Power) NPDES permits have a maximum term of five years. 5 The limited permit duration and antibacksliding requirements in the Clean Water Act aim to achieve continual progress towards restoring the nation s waters. As the D.C. Circuit has explained, [t]he essential purpose of this series of progressively more demanding technology-based standards was not only to stimulate but to press development of new, more efficient and effective technologies. 6 As pollution control technologies improve, higher standards are incorporated into the NPDES permits of existing facilities upon renewal. The timely renewal of NPDES permits is a linchpin of the Clean Water Act, and an essential part of your office s responsibilities. Yet, as noted above, Georgia s coal plants are operating under permits that have been expired for roughly a full permit cycle, and in the case of McIntosh, over two permit cycles. In light of the fact that updated ELGs applicable to these facilities are now in effect, the renewal NPDES permits for these facilities must reflect and incorporate the strengthened guidelines and standards. Prioritizing incorporation of the updated ELGs in these facilities NPDES permits is especially necessary given the fact that the revised steam electric ELGs were promulgated to address the outstanding public health and environmental problem related to the discharge of waste streams containing toxic and other pollutants from coal-fired power plants. 7 Indeed, [t]he steam electric ELGs that EPA promulgated and revised in 1974, 1977, and 1982 are out of date and, as a result, current NPDES permits issued to these facilities under those previous, outdated ELGs do not adequately control the pollutants (toxic metals and other) discharged by this industry, nor do they reflect relevant process and technology advances that have occurred in the last 30-plus years. 8 As such, in order to protect public health and the environment, those inadequacies must be rectified expeditiously. Under the Clean Water Act, in issuing any renewal NPDES permit for Georgia s coal-fired power plants, the EDP must incorporate these ELGs into NPDES permits as a floor or a minimum level of control. 9 Compliance with the ELGs must occur as soon as possible beginning November 1, 2018, but no later than December 31, For indirect dischargers, for whom the ELGs are self-implementing, compliance is required by November 1, To be clear, the 5 See 33 U.S.C. 1342(b)(1)(B). 6 Natural Res. Def. Council v. U.S. Envtl. Prot. Agency, 822 F.2d 104, 124 (D.C. Cir. 1987) Fed. Reg. at 67, Fed. Reg. at 67,840 (emphasis added) Fed. Reg. at 67, See, e.g., 40 C.F.R (g)(1)(i) (establishing deadline for compliance with FGD wastewater standards; identical language appears in the provisions for other regulated waste streams).

4 phrase as soon as possible means November 1, 2018, and a later date is only permissible if absolutely necessary according to a set of specifically-enumerated factors spelled out in the ELGs. 11 Indeed, for any extension beyond November 1, 2018, permitting authorities are to provide a well-documented justification for how [they] determined the as soon as possible date in the fact sheet or administrative record for the permit, and to explain why allowing additional time to meet the limitations is appropriate, if that is the authority s conclusion. 12 Accordingly, any determination that a later date is appropriate must be well-documented and reflect consideration of the following factors: Time to expeditiously plan (including time to raise capital), design, procure, and install equipment to comply with the requirements of the final rule. 13 EPA further explains that the permitting authority should evaluate what operational changes are expected at the plant to meet the new BAT limitations for each waste stream, including the types of new treatment technologies that the plant plans to install, process changes anticipated, and the timeframe estimated to plan, design, procure, and install any relevant technologies. 14 Changes being made or planned at the plant in response to new or existing requirements at fossil fuel-fired power plants under the Clean Air Act, as well as regulations for the disposal of coal combustion residuals under Subtitle D of the Resource Conservation and Recovery Act. 15 For FGD wastewater requirements only, an initial commissioning period to optimize the installed equipment. 16 EPA explains that the record demonstrates that plants installing the FGD technology basis spent several months optimizing its operation (initial commissioning period). Without allowing additional time for optimization, the plant would likely not be able to meet the limitations because they are based on the operation of optimized systems. 17 Any information that permittees provide to the permitting authority regarding any potential inability to comply by November 2018 should be made available to the public and subjected to close scrutiny and verification by your office Fed. Reg. at 67,883; see also 40 C.F.R (t); accord 80 Fed. Reg. at 67,883, n.57 (observing that [e]ven after the permitting authority receives information from the discharger, that supporting a request for a later compliance data it still may be appropriate to determine that November 1, 2018, is as soon as possible for that discharger. ). 12 See U.S. EPA, Technical Development Document for the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (Sept. 2015), at p [hereinafter TDD ] C.F.R (t)(1). 14 TDD at C.F.R (t)(2) C.F.R (t)(3). 17 TDD at

5 The default November 1, 2018 compliance deadline is eminently achievable. The ELGs administrative record conclusively demonstrates that the industry itself projects the total time needed for fly ash and bottom ash system retrofits to range from 27 to 36 months, from the start of conceptual engineering to final commissioning. 18 With appropriate planning and direction from state permitting authorities, many plants thus can and should be required to bring their operations into compliance by November 1, 2018, especially given that the updates to the ELGs were developed and thus anticipated by industry over several decades. II. EPD Should Take Public Comment for No Less than 60 Days on Draft NPDES Permits and Compliance Determinations for the ELGs. Because of the significance of the water protections in the ELGs and the findings you must make regarding the compliance deadlines, as discussed above, we urge you to revise and issue NPDES renewal permits for the above facilities with expired NPDES permits in light of the new standards and requirements, and to take public comment for no less than 60 days on the draft permits. Doing so is consistent with EDP s oversight responsibilities and commitment to public involvement. 19 III. EPD Should Do Its Part to Protect Consumers from Piecemeal Regulatory Compliance Decisions that Fail to Identify and Pursue Cost-Effective Alternatives to Expensive Retrofits for Georgia s Aging Coal-Fired Plants. The need to expeditiously issue NPDES permits for those coal-fired plants with expired permits issued under the previous, outdated ELGs is underscored by the fact that the owners and operators of the coal-fired power plants listed above, as well as your fellow state regulators, face complex and fast-approaching deadlines under numerous public health and environmental statutes which, together, will compel decisions about the prudency of continuing to operate these facilities. Clarity regarding the ELG compliance obligations and timelines will help ensure well-informed decisions that are in Georgians best interests. Making prompt compliance determinations will allow fellow regulators to assess whether it is more prudent to retire rather than spending huge sums of public monies to retrofit these aging coal plants in light of the rapidly evolving regulatory and market conditions surrounding coal and carbon. EPD should do its part to protect consumers from piecemeal regulatory compliance decisions that fail to identify and pursue cost-effective compliance pathways. 18 Utility Water Act Group, Comments on EPA s Proposed Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (Sept. 30, 2013), Attach. 11: Retrofitting Dry Bottom Ash Handling, Attach 13: Retrofitting Dry Fly Ash Handling. 19 See Georgia Environmental Protection Division, Mission, Vision, and Guiding Principles, at (noting EPD s vision of environmental protection as serv[ing] the public by implementing state laws, rules, and policies to protect human health and the environment and doing so in a consistent, fair, and timely manner. )

6 In sum, we urge you to promptly revise and issue NPDES renewal permits and fact sheets for the above facilities with expired NPDES permits that incorporate the updated ELGs and contain your determination regarding the date upon which these facilities can comply with the ELGs. Prompt compliance with the ELGs is necessary in order to ensure that Georgia achieves and maintains compliance with water quality standards, improves drinking water quality, and otherwise protects the public and environment. Due to the complexity and novelty of the issues presented, we ask that you take public comment for no less than 60 days on those draft permits. Finally, we urge you to work with fellow regulators so that ELG compliance is not considered in isolation, but rather within the full suite of applicable regulations. Given the number of permit updates required, we would like to request a meeting to discuss permit prioritization and finalization timelines. We appreciate your attention to this crucial matter and look forward to discussing this issue with you in the near future. Sincerely, /s/ Zachary M. Fabish Staff Attorney Sierra Club 50 F Street, NW - 8th Floor Washington, DC (202) zachary.fabish@sierraclub.org cc: Judson H. Turner, Director, Environmental Protection Division Molly Davis, Chief, NPDES Permitting Section, U.S. EPA Region 4