ILLINOIS POLLUTION CONTROL BOARD

September 11,

1986

IN THE MATTER OF:

)

)

SITE—SPECIFIC RULEMAKING

)

R85—7

FOR CENTRAL ILLINOIS LIGHT

)

COMPANY

)

CONCURRING OPINION

(by B,

Forcade):

While

I agree with the outcome and opinion expressed by the

majority, there

is another profound reason to deny the requested

relief.

While

the Board may be free to adopt or

reject the

requested regulatory relief under

state law,

those changes, if

adopted, would be expressed by changing

the effluent limitations

in an NPDES

permit.

Federal

law precludes those changes.

NPDES permits issued by the state must comply with existing

federal

regulations.

One of those federal provisions,

40 CFR

122,44

(1),

is affectionately known as the anti—backsliding

provision and states

as follows:

(1)

Reissued permits.

(1) Except

as provided

in paragraph

(l)(2)

of

this section when

a

permit

is renewed

or

reissued,

interim

limitations, standards or conditions must

be

at

least

as

stringent

as

the

final

limitations,

standards,

or conditions

in

the

previous

permit

(unless

the circum-

stances

on which

the previous permit was

based

have

materially

and

substantially

changed

since

the

time

the

permit

was

issued

and

would

constitute

cause

for

permit

modification

or

revocation

and

reissuance under Section 122.62),

(2)

When

effluent

limitations

were

imposed

under

Section 402(a)(l)

of

CWA

in

a pre-

viously

issued

permit

and

these

limi-

tations

are more stringent

than

the sub-

sequently

promulgated

effluent

guide-

lines,

this paragraph shall

apply unless:

Ci)

The

discharger

has

installed

the

treatment

facilities

required

to

meet the effluent limitations

in the

previous

permit

and

has

properly

operated

and

maintained

the

facil-

ities

but

has

nevertheless

been

unable

to

achieve

the

previous

ef—

72-378

---

—2—

fluent

limitations.

In

this

case

the

limitations

in

the

renewed

or

reissued

permit

may

reflect

the

level

of pollutant control

actually

achieved

(but

shall

not

be

less

stringent

than required by the sub-

sequently promulgated effluent limi-

tation guidelines);

(ii) In

the

case

of

an

approved

State,

State

law

prohibits

permit

condi-

tions more stringent than an applic-

able effluent limitation guideline;

(iii)

The subsequently promulgated

effluent

guidelines

are

based

on

best conventional

pollutant control

technology

(section 30l(b)(2)(E)

of

CWA);

(iv) The circumstances

on which

the pre-

vious

permit was based

have materi-

ally and substantially changed since

the

time

the

permit

was

issued

and

would

constitute

cause

for

permit

modification or revocation and reis—

suance under Section 122.62; or

(v)

There

is increased production at the

facility

which

results

in

signifi-

cant

reduction

in

treatment effici-

ency,

in which case the permit limi-

tations

will be

adjusted

to

reflect

any

decreased

efficiency

resulting

from

increased

production

and

raw

waste

loads,

but

in

no

event

shall

permit limitations be less stringent

than

those

required by subsequently

promulgated

standards

and

limitat-

ions,

Clearly, CILCO cannot justify relaxation under condition

(2)(i), because CILCO was

able to achieve the previous effluent

limitations from 1974 to

1979.

CILCO cannot justify relaxation

under condition (2)(ii), because Illinois has no State Law pre-

cluding effluent limitations more stringent than Federal mini-

mums,

CILCO cannot justify relaxation under condition (2)(iii)

because there are no best conventional pollutant control tech-

nology (BCPT) guidelines affecting CILCO’s facility,

Since there

have been no material and substantial changes

to the facility,

CILCO cannot justify relaxation under condition (2)(iv), Lastly,

there has been no

increased production which results

in signifi—

72-379

---

—3—

cant reduction

in treatment efficiency,

so CILCO cannot justify

relaxation under condition (2)(v),

A strong argument can be made that proper operation and

maintenance of a fly ash pond requires periodic removal of accu-

mulated solids that have settled

to the bottom,

CILCO has not

met that argument

in a manner that would satisfy state law or in

a manner that would satisfy the above quoted federal

law, There-

fore

I concur

in

the decision

to deny relief

for

the reasons of

the majority and the additional

reasons cited above.

Member of the Board

I,

Dorothy M.

Gunn, Clerk of the Illinois Pollution Control

Board, hereby c~.r-tifythat the a~veConcurring Opinion was sub-

mitted on the ~

day of

______________,

1986.

7

~brothy

M,/Gunn, Clerk

Illinois Pollution Control Board

72-380