ILLINOIS POLLUTION CONTROL BOARD
September
30,
1976
ENVIRONMENTAL PROTECTION AGENCY,
Complainant,
V.
)
PCB 75—310
CENTRAL ILLINOIS PUBLIC
SERVICE
)
COMPANY,
Respondent.
Mr. Steven Watts, Assistant Attorney General, appeared for the
Complainant;
Mr. Thomas
L.
Cochran, Attorney,
appeared
for the Respondent.
OPINION AND ORDER OF
THE
BOARD
(by
Mr.
Zeitlin):
The Complaint in this matter was filed by the Environmental
Protection Agency
(Agency)
on August
7,
1975.
That Complaint
alleged that Respondent Central Illinois Public Service Company
(CIPS)
had,
from June
13,
1975 until the filing of the Complaint,
caused or allowed construction of an electric generating plant
without the required construction permit from the Agency, which
plant would
(upon completion) discharge condenser cooling water
into waters of the State,
in violation of Section 12(b)
of the
Environmental Protection Act
(Act)
and Rule 951 of Chapter
3:
Water
Pollution,
of this Board’s Rules and Regulations.
Ill.
Rev. Stat.,
Ch.
111—1/2,
~l012 (b) (1975)
;
Ill. PCB Regs.,
Ch.
3,
Rule
951
(1976)
A hearing was held
in the matter at Newton,
Illinois,
on
June 15,
1976.
No
testimony or arguments were presented at that
hear
i nq
,
bu
f
t:he
p;i
rt
i
Cs
did enter
~
n
jo
in
~
CXIi
i
bi
t
~
Joi nt
Stipulation
of
Facts
(Stipulation)
,
which
forms
tue ia~is
for
Lliis
Opinion
and
Order.
The
electric
generating
facility
at
issue
in
this
case
is
presently
being
constructed
by
CIPS
at
Newton,
Illinois,
pursuant
to a Certificate of Public Convenience and Necessity granted
by
the
Illinois Commerce Commission on July
5,
1972.
Ill. Commerce Com-
mission,
Doc.
No.
57391
(attached as Ex.
1 to Stip.
Stip.
exhibits
hereinafter Ex.
1,
Ex.
2,
etc.J).
The
Commerce Commission’s Order
contemplated a steam—electric generating plant with a rated capacity
of 1,200,000 kilowatts,
to be built at an estimated cost of
$140
to
Sl45 million,
(id.,
4)
.
When complete,
the station will
consist of two units,
each with a rated output of 550,000
1KW;
the
first unit is expected to begin operating commercially on Dec.
1,
1977,
with the second
to come on line in
1961,
(Stip.
~8).
23
—
589
—2—
Along with the generating station, CIPS
is constructing an
impoundment for condenser cooling water.
Construction of that
impoundment,
termed “Newton Lake”
(Stip.,
¶14),
commenced on about
August
1,
1973,
(Stip.,
¶18).
Newton Lake was formed
by
the construc-
tion of
a dam approximately 1,300 feet below the confluence of Sandy
and Laws Creeks, on Weather Creek.
The lake has begun
to fill and
has already reached operational level, although it
is still approxi-
mately
10 feet below spillway level,
(Stip.,
¶114)
The essence of the Agency’s Complaint is that Newton Lake con-
stitutes waters of the State,
and CIPS’ power station constitutes
a wastewater source;
that being the case,
a construction permit
would be required for the power station, pursuant to Rule 951.
The
parties agree that,
as of June
15, 1976, CIPS had not received the
construction permit for such a wastewater source,
(R.
3,
amending
Stip.
¶17)
CIPS’ Answer, filed August
26,
1975,
raises several defenses
to the alleged violation.
Most of the defenses revolve around a
case decided by the Board concerning another of CIPS’ cooling
impoundments, and CIPS’
appeal of our decision in that case.
Central Illinois Public Service Co. v.
EPA, PCB 73-384,
11 PCB 677
(March 28,
1974);
Id.,
12 PCB 361
(May 23,
1974)
(Supplemental
Opinion on Denial of Rehearing),
aff’d.,
____
Il1.App.3d
____
344 N.E.2d 229
(Ill.App.Ct.,
5th Dist., Feb.
2,
1976), Rehearing
Denied with Opinion,
Id.,
(March
25,
1976), Petition For Leave to
Appeal Filed,
Ill.
Sup.
Ct.
,
April
28, 1976.
The Board in that
case found that a purportedly similar cooling impoundment at CIPS’
Coffeen electrical generating station constitutes waters of the
State,
a finding which CIPS continues
to contest.
Without citation,
CIPS alleges that the pendency before the Supreme Court of its
Petition for Leave
to Appeal in that case should somehow bar Board
action on this case.
We find that argument to be without merit.
The Fifth District’s decision in that case,
upholding
the Board’s
earlier determination on the issue of whether
the Coffeen impound-
ment constitutes waters of the State, merely provides additional
basis for our several decisions on similar issues.
CIPS’
central argument here,
as
in
PCI3
73-384,
i~ LiaL
a lake
contained
entirely
on
its own property,
formed
by
the
daiiimlncj
of
intermittently flowing streams, does not constitute waters of the
State.
We have held the opposite in CIPS, supra., Citizens for a
Better Environment
v. Commonwealth Edison Company, PCB 73-245,
-248,
13 PCB 69
(July
18,
1974), and EPA v.
Central Illinois Light
Co.,
PCB 75—387,
PCB
_____
(July 22,
1976)
,
as well
as
in
a compre-
hensive Regulation on the subject,
In The Matter of Water Quality
Standards Revisions, Cooling Lakes, R75-2,
18 PCB 381
(August 14,
1975)
Opinion
18 PCB 681
(Sept.
29,
1975)
23
—
590
The parties’
Stipulation clearly indicates that the intermittent
streams dammed
to form Newton Lake were, prior to impoundment, waters
of the State.
Under the rationale of the cases cited above,
they
remain waters of the State.
The discharge of heated condenser cooling
water into Newton Lake thus mandates a construction permit for the
source of such heated effluent:
Newton Station.
The Agency’s prima
facie case is thus made.
Respondent’s Answer
(113)
raised as
an issue the pendency of
an NPDES Permit,
No.
IL 000018,
issued by the
tJ.
S. Environmental
Protection Agency, whose terms are presently the subject of
a request
for adjudicatory hearing by CIPS.
However, that request for adjudi-
catory hearing concerns CIPS’ Coffeen Lake.
CIPS does not state the
relevancy of that matter to this case.
With nothing further before
us,
we fail
to see the relevancy of either the NPDES permit system
generally,
or specifically any NPDES permit concerning another station
and lake,
to this case.
Likewise, we fail to see any relevance
to CIPS’ alleged affirma-
tive defense that the Agency,
on October
9,
1974, stated that the
construction of Newton Lake would be completed without causing water
pollution, and that,
“This construction does not propose
a discharge
into navigable waters
so
thatj
certification by the Illinois
Environmental Protection Agency under the provisions of Section 401
of the Federal Water Pollution Control Act of 1972.
.
.
is not
required.’
(Stip.,
¶5; Ex.
4.)
Again,
the relevance of these facts
to this case is not pleaded by Respondent and is not apparent to us.
The defense is spurious.
Respondent also raises the issue
of other permits which have
been applied for or received concerning the power station and cooling
impoundment at Newton.
Those permits cannot affect our finding on
the issue of violation.
Finally,
Respondent alleged
in
its Answer that,
prior to the
Board’
s
adopt:
ion
of
the Cooling
Lakes
Regulation
on
August.
1.4
,
1975,
any
appl ica
t ion
For
perm.i t
filed
by
i t
“wou 1
ci
have
been
an
CXC’rC
i so
of
futility.”
Respondent
apparently
feels,
without
so
stating,
that it could not have filed
a
permit
application
indicating
compli-
ance with the relevant thermal regulations for discharges into waters
of the State and thus could not have received a Permit.
This defense
is wholly without merit.
23
—
591
—4—
If cIps felt that either it was unable to submit an application
indicating compliance with those regulations,
or that compliance
with those regulations would have been unreasonable,
it nonetheless
could have pursued either of two avenues
to obtain relief from those
standards and obtain the necessary permit.
CIPS could have,
at any
time,
filed a Petition for Variance.
Similarly,
even before the
enactment of R75-2,
supra., providing specific regulatory standards
for the setting of thermal standards for cooling
lakes, CIPS could
conceivably have obtained the relief which it felt was needed through
the mechanism of
a specific regulatory change.
The Board provided
just such relief,
albeit only until July
1,
1978,
to Commonwealth
Edison,
In the Matter of Water Quality Standards Revisions,
R72—4
(June
28,
1973)
(Opinion adopted November
8,
1973)
(“the
five mile
stretch”)
,
amending PCB Regs., Ch.
3,
Rules
203(1) (4)
,
203(1) (9)
(1976)
Respondent CIPS’
conception of the reasonableness
of compliance
with the permit application requirements set pursuant to
the Act,
where statutory provisions and precedent for appropriate relief have
been ignored, provides no defense to the alleged violation.
Despite
the foregoing issues raised as defenses, and without
admitting
a violation,
Respondent’s Brief states that,
“It thus
appears clear the only issue presently before the Board
is the
question of whether any civil penalty may or should be imposed on
CIPS by the Board.”
The Agency’s prima facie case of violation
having been made and there being no well—pleaded defenses,
we turn
to consideration of the factors set forth in §33(c)
of the Act.
In view of the Illinois Appellate Court, Second District’s,
Opinion
in Processing and Books
v. Pollution Control Board,
No.
73-204
(Ill.App.Ct.,
2d Dist., May
7,
1976)
aff’g., EPA v. Processing and
Books,
PCB 72—148
(May 10,
1973)
,
Supplemental Order
(May 31,
1973),
placing the burden with regard to §33(c)
on Respondent, we shall
address first the issues in §33(c)
as they are raised by Respondent.
First,
CIPS argues that no pollution of any kind is occurring
as
a result of construction at the Newton power station;
CIPS
notes that the plant
is not yet operational.
This argument avoids,
however,
the
real
I s:;ue here and the basic purpose
oF
the
permit
system.
‘F
i me
y and
proper
permi I
app!
i cat
ion:;
to
I
lie
Ageney
would
provide assurance
—
before
the fact
—
IliaL
no
pull ut ion
wi.l
I
result
from
construction of Newton Station,
after the station has been
constructed and operation has commenced.
Without adherence
to the
permit
system
and its requirements, we can have no such assurance.
CIPS
also
notes
that
no
water
is
flowing
over
the
dam
site
as
yet.
While that assertion misses another major issue
-
whether the
water flowing into the lake will be free of pollution
-
CIPS again
fails to address
the purpose of the permit system.
Without prior
construction permits, we cannot know whether water flowing into the
lake,
or for that matter out of
it, will cause pollution of waters
of the state.
23
—
592
—5—
With regard to §33(c)
CIPC3 again raises the pending case,
supra.,
concerning its Coffeen Lake.
CIPS claims that it has not been
“dilatory or recalcitrant
in its conduct,” because it has taken
“all
reasonable steps to determine what it considers a vital and important
legal question, namely, whether the state has jurisdiction over its
private lakes...”
Put simply,
CIPS’
contest of that issue in an
unrelated case cannot excuse simultaneous violation of existing law
and Regulations enacted pursuE~tto that law.
CIPS again states that it would have been an “exercise of futility”
to follow the same procedure for Newton as
it had at Coffeen.
CIPS
blithely excuses its violations ~ith regard to Newton, and continues
construction without the necessary permits, by stating that compliance
with the permit system would have been a duplication of legal effort.
This allegation
is wholly without merit.
CIPS’ next claim is that it has applied for all other necessary
permits for Newton, and has committed itself to an expensive SO2
scrubber removal system for the station.
While CIPS’
compliance
with other regulations
is laudable,
it is also to be expected.
Compliance with other related or unrelated laws and regulations
is
simply irrelevant to the violation charged.
In its discussion of whether a penalty
is warranted, CIPS again
cites the Agency’s statements
to the Department of Transportation
that Lake Newton would not involve any discharge into “navigable
waters,” and in that regard was,
“certainly.. .an indication the
Agency did not consider any of the streams involved navigable and
that no harm could come to the public by reason of Newton Lake.”
That letter,
(Ex.
4), concerned pollution during construction, and
does not concern itself with the possibility of thermal pollution
after completion of Newton Station and Lake.
A proper permit appli-
cation
to the Agency itself was the proper vehicle
to obtain Agency
judgment on such subsequent operation.
The Agency’s judgment
concerning
“navigability”
is likewise immaterial here.
That judg-
ment by the Agency was made with reference
to federal law,
and has
no relationship to the permit requirement at issue in this case.
(Ex.
4 cites §401 of the Federal Water Pollution
Cont:roi Act Amend-
ments of
1972,
P.A.
92—500.)
Finally, CIPS claims that there is no evidence that Newton Lake
will ever be
a source of pollution within any meaning of that word
as used in the Act.
This claim fails to address the issue of whether
Lake Newton itself will ever be polluted,
and again begs the central
issue.
The permit system, and compliance therewith,
is necessary
to assure the State that just such pollution will not occur.
23
—
593
—6—
Although,
as noted previously,
the burden of introducing matters
for the
Board’s consideration under §33(c)
of
the Act
is Respondent’s,
we shall also examine matters included in the Stipulation of the
parties which may bear on our consideration under §33(c).
First among these is the Illinois Commerce Commission’s Order
with regard to Newton Station and Lake,
(Ex.
1).
Insofar as that
Order states that Newton Station will enable CIPS to provide safe,
reliable, and adequate electrical service,
it bears on the social
and economic value of Newton Station.
Such social and economic
value must, however, be weighed against the likelihood of pollution
which may result from operation of the station after its construction.
Without compliance with the permit requirement in issue here,
it is
impossible for the Agency or the State to make an informed determi-
nation of how that balance is to be resolved.
Respondent’s failure
to submit a permit application with regard to discharges into Newton
Lake from the power station prevents examination of the station’s
effect on the natural resources of the State,
a determination which
may have considerable bearing on the social, and economic value of
the station as a potential pollution source.
Although the suitability or unsuitability of Newton Station
and Lake to its site has not been raised here by the parties,
such
suitability was addressed by the Commerce Commission in its Order,
(Ex.
1,
¶(9).
The
Commerce Commission determined that the site
is
indeed suitable,
(id.)
.
The Commerce Commission’s Order,
however,
does not indicate that it considered the pollution potential of
Newton Station.
Such evaluation is inherent in the construction
permit system violated here by CIPS.
The technical practicability and economic reasonableness of
compliance with the permit requirement by CIPS provides no mitigation
in this case.
CIPS simply ignored the permit requirement as it
applies to Newton Station and Lake.
As noted above, CIPS’ claim
that compliance with that requirement would have been “an exercise
of futility”
is without merit:
CIPS had several avenues by which it
could have complied with that requirement.
The character and degree of CIPS’
injury to and interference
with the protection of the health, general welfare and physical
property of the people in this case is simply that CIPS has prevented
predictive evaluation of just these factors.
The permit system is
designed to prevent just such injury and interference through a
mechanism deemed necessary by the Legislature
in the Environmental
Protection Act.
Our Rules, as violated here, are intended to fulfill
that statutory mandate, and prospectively protect the health, welfare
and physical property of the people.
23
—
594
—7—
In view of CIPS’
unexcused violations,
we find that a civil
penalty of
$5,000 is necessary to protect the integrity of the permit
system and further the purposes of the Act.
The Board considers
the permit system necessary for the protection of the environment,
and that the permit
system and its requirements may not be ignored
by any individual or company
for reasons of its own choosing.
See,
Aluminum Coil Anodizing
v. Pollution Control Board,
No.
74-394
(Ill.App.Ct.,
2d Dist., July 22,
1976).
We shall not,
however, order CIPS to immediately cease and desist
its violations.
Albeit belatedly,
CIPS has filed
a Regulatory Petition
for a specific thermal standard covering discharges from Newton Station
into Newton Lake.
R76-6.
As a result of the pendency of that regu-
latory proceeding,
we shall
order CIPS to cease and desist its
violations
within 180 days of the date of the Board’s final action
in R76-6.
That
period should provide adequate time for CIPS to prepare, and for the
Agency to evaluate, a permit application reflecting the results of
that regulatory proceeding.
This Opinion constitutes the findings of fact and conclusions
of law of the Board
in this matter.
ORDER
IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:
1.
Respondent
Central Illinois Public Service Company
is found
to have constructed a wastewater source in Newton County,
Illinois,
without the requisite construction permit from the Environmental
Protection
Agency
in
violation
of
Section
12(b)
of
the
Environmental
Protection Act and Rule 951 of Chapter
3:
Water Pollution,
of the
Board’s Rules and Regulations.
2.
Respondent shall pay as
a penalty for the above violations
the sum of Five Thousand Dollars
($5,000.00),
payment to be made
within thirty
(30)
days of the date
of this Order,
by
certified
check or money
order
10:
Environmental Protection Agency
Fiscal Services Division
2200 Churchill Road
Springfield, Illinois
62706
3.
Respondent shall cease and desist such violation within
one hundred eighty
(180)
days of final action by this Board
in
the
Regulatory Proceeding R76—6.
23
—
595
—8—
Mr. James Young abstained.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, herçby certif
t e a ove Opinion and Order were
adopted on the ~3~’~-day of~
1976, by a vote of
q_p
Illinois Pollutio~
23
—
596