ILLINOIS POLLUTION CONTROL BOARD
November 8, 1984
CENTRAL ILLINOIS T?tJBLIC
SERVICE CO~1PANY,
)
Petitioner,
v.
)
PCB 84—105
LLLINOIS ENVIRONL~4ENTAL
PROTECTION AGENCY,
)
Respondent.
OPINION AND ORDER OF
THE BOARD (by B. Forcade):
This matter
comes before the Board on an appeal of permit
denial filed
by Central Illinois Public Service Company (“CIPS~)
on July
24, 1984. On April 2, 1984, CIPS applied for a con-
struction permit for a new unlined fly ash pond to be built at
their
Hutsonville Power Station. The Illinois Environmental
protection
Agency (‘~Agency”) denied the permit on June 27, 1984
on the basis that the proposed facility would not meet
the
re-
quirements
of
35 Ill. Adm. Code 302.201 and 304.124. CIPS filed
a permit
appeal and a hearing was held on September 13, 1904, in
Springfield. in addition to
the testimony presented in
the
Petitioner~s and
Respondent~s cases, a public comment was received
from
David P. Rubner, an engineer with Commonwealth Edison.
The
CIPS Hutsonvil.e power station (~Station~’)is
a
coal
burning facility,
located adjacent to the Wabash River. The
proposed fly
ash pond at issue would be part of the wastewater
treatment
system used to treat fly ash transport water. Water is
taken from the ~‘7abash River and used to clean and
convey fly ash
from the
station~selectrostatic precipitators. Because of high
levels of
total suspended solids (TSS), the wastestream cannot be
discharged
directly to public waters (Permit Appeal, p. 3). CIPS
plans to sluice
fly
ash to the proposed pond. Overflow from the
proposed
pond will
be
routed to an existing fly ash pond from
where it will
ultimately discharge into the Wabash River through
the
currently permitted NPDES outfall (R. 67).
The
existing fly ash pond occupies 18 acres,
is
unlined, and
is built with
silty, clayey, fine to course
sand
and small
gravel
native to the site (R. 24, 67). It receives a number of wastestreams
in addition
to fly ash and is nearing its capacity (R.
25—26).
Data
from
nine recently installed (February,
1984) groundwater
monitoring wells clearly indicates that the existing
unlined fly
ash pond
is leaking into the underlying aquifer and is entering
2
the groundwater. The groundwater monitoring data shows values con-
sistently higher than the general use water quality standards for
boron, manganese, sulfate and total dissolved solids (TDS). The
relevant well data is shown below:
concentration
General Use
?~onitorin~
Standard (mg/l) Date
Well No.
Boron
11.5
1.0
2/16/84
M—6
Boron
9,4
2/23/84
M—6
Boron
21.
2/29/84
M—6
Boron
1.6
2/29/84
M—7
Boron
7.9
3/1/84
Boron
9.8
3/7/84
M—6
Boron
23.8
3/7/84
M—8
Boron
16.4
3/15/84
M—6
Boron
1.4
3/15/84
M—7
Boron
22.5
3/15/84
M—8
Boron
23.2
3/19/84
M—6
Boron
14.3
3/19/84
M—8
Total Dissolved
Solids
1044
1000.0
2/16/84
M—6
Total Dissolved
Solids
1160
2/23/84
Total Dissolved
Solids
1213
2/29/84
M—6
Total Dissolved
Solids
1012
3/15/84
M—6
Manganese
1.091
1.0
2/29/84
Sulfate
519
500.0
2/16/84
M—6
Sulfate
522
2/23/84
M—6
Sulfate
564
2/29/84
M—6
(Record of Permit Application, Item 5, Attachment 3.)
Radial flow under the existing pond is estimated to be 50 to
100 feet beyond the borders of the pond (R. 70). The contaminating
leachate then generally flows east with the groundwater towards
the Wabash River where it ultimately discharges (R. 83), In
times of high water levels in the Wabash River, groundwater flow
is subject to reversal of direction (R. 108—108). Because of the
great dilution potential of the Wabash River, there is little or
no adverse environmental impact on the river itself from the
contaminated groundwater (R. 54—55).
The aquifer that underlies the station is composed of highly
permeable sands and gravels and is geologically desirable for
development of a water supply well (R. 122). In addition to the
nine groundwater monitoring wells, there are two deep wells in
this aquifer, 70 to 80 feet deep, that provide drinking water for
61-46
3
the Station employees, as well as boiler makeup in the steam
generating cycle (R. 65—66). There are approximately 30 to 40
employees per shift. Three shifts per day are operated (R.
66).
The groundwater monitoring wells are between 10 to
20 feet deep
and capture groundwater from the upper part of the aquifer. The
deep wells are finished at bedrock and draw water from the
entire
column of the aquifer (R. 66),
The proposed fly ash lagoon will occupy 8.8 acres, will be
unlined and built with the same native sands and gravels as the
existing pond CR. 27). It is undisputed that the proposed sand
will leak in the same manner as the current pond. Loading
of the
proposed pond would be approximately 40,000 tons per year CR.
67—68)
The same general pattern of initial radial flow beyond the
borders
of the pond and eventual movement towards the river is expected
to occur (R, 88). The anticipated effect of the proposed pond is
to increase leachate migration into the groundwater (R. 143).
The Agency denied the permit to construct the new unlined
fly ash pond on the basis that the proposed facility would not
meet the requirements of 35 Ill. Adrn. Code 302.201 and 304.124.
The Agency specified the parameters that would not be in compliance
under the proposed construction application: Boron, sulfate,
manganese and TDS. The denial letter also stated that the
Agency
would require the use of a liner for the proposed fly ash pond
botton and side walls in order to adequately protect groundwater.
The Agency, however, did not specify what type of liner would be
required (Agency Record, Item 20).
The Agency argues that the effluent standards in §304.124
are applicable to subsurface leachate, Specifically, the level
of manganese in the leachate exceeds the 1.0 mg/i limitation
in
§304.124. The issue of whether leachate is an effluent, is a
matter of first impression. Section 301.275 defines effluent as:
Any wastewater discharged, directly or indirectly
to the waters of the State or to any storm sewer,
and the runoff from land used for the disposition
of wastewater or sludges, but does not otherwise
include nonpoint source discharges such as run—
off from land or any livestock management facility
or livestock wastehandling facility subject to
regulation under Subtitle E,
The Agency argues that under §301,325 all terms used in
connection with the state NPDES program that have been defined
in
the Clean Water Act (~CWA”)or regulations shall have the meaning
specified therein, Because the term~point source~ is used in
connection with the state NPDES program in §309.102(a), the
Agency reasons that the federal definition found in §502(14) of
the CWA should be utilized in determining whether or not subsurface
61~~47
4
leachate
from a fly ash
lagoon emanates from a point source or a
nonpoint source.
The CWA defines “point source” at §502(14)
as:
.any discernible,
confined
and discrete con-
veyance, including hut not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated
animal feedincj operating, or vessel or other
floating craft, from which pollutants are or
may be discharged. This
term does not include
return flows from irrigated agriculature.
(33 U.S.C. 1362 (14)).
The Aqency asserts that the
proposed fly ash pond as a whole
would be a “discernible, confined
and discrete conveyance” which
is a “container” from which pollutants
would be discharged to the
groundwater. Therefore, it would be a point source to which the
Board~s effluent limits would apply. The Agency cites no authority
in support of this interpretation.
cips
argues that leachate from a fly ash pond is nonpoint
source of
contaminants and does not fall within the definition of
leachate.
CIPS also argues that the Board, when adopting control
standards, must consider
the
economic reasonableness and technical
feasibility of controlling or reducing a particular type of
pollution
in
order to comply with §27(a)
of
the Act. CIPS asserts
that the use of liners as a
control technology for manganese was
never evaluated under the §27(a) criteria during the Part
304
rulemaking and that any application
of the 1.0 mg/i effluent
limitation for manganese
would violate the Act,
Subsurface leachate is produced when liquids present in the
fly ash
impoundment migrate down through the waste and out the
bottom and
sides of the facility into the underlying soil.
Leachate
emanates from the entire pond area and radiates out
beyond
the
entire perimeter of the facility.
This is a classic
nonpoint
source
of
pollution.
The Board’s definition of effluent
clearly excludes nonpoint sources from the Part 304 limitations.
This
interpretation is supported by the Board’s Opinion and Order
In The
Matter of Effluent Criteria, R 70—8, 3 P.C.B. 401,
(January 6, 1972), where the 1.0 mg/i manganese standard was
adopted.
The Board evaluated the technological feasibility
and
economic
reasonableness of
lime
precipitation and various types
of filtration to
remove manganese prior to discharge, 3 P.C,B. at
416—417.
The
Board clearly contemplated “end of the pipe”
technology as it
relates to surface discharge and did not intend
the standard
to apply
to
nonpoint
subsurface leachate. The
Board finds that this basis for the Agency denial was
incorrect
and must
he
reversed.
The Agency’s second basis for the
permit denial was that the
construction permit application did not
provide for adequate
groundwater protection in that general use water
quality standards
5
for boron, manganese, sulfate and TDS would be violated. The
Agency denial letter cites §302.201 along with the four
specified
parameters in §302.208. Monitoring data clearly shows that
leachate from the existing fly ash lagoon causes
pollutant con-
centrations above the general use water quality
standards in the
groundwater underlying the Station, Because the
proposed pond
would he built with the same native sands and gravels and
be un-
lined, it is undisputed that the proposed pond would leak and
further contaminate the groundwater. The issue before
the Board
is whether, under these circumstances, the general use water
quality standards apply to groundwater underlying the Station.
Under §302,101(a) the Part 302 schedules of water quality
standards are to be applied “as designated in Part
303.” Section
303.201 states that : “Except as otherwise specifically
provided,
all waters of the State must meet the general use standards of
Subpart B of Part 302” Section 3(00) of the Act provides:
“WATERS” means all accumulations of water, surface and
underground, natural, and articifical, public
and
private, or parts thereof, which are wholly or partly
within, flow through, or border upon the
Sta~e. (Ill.
Rev. Stat. 1983, Ch, 111½, par. 1003(00)),
The Agency argues that these sections provide for
comprehensive
application of the general use water quality standards
to all
waters of the State where there is no specific designation.
The
Agency also asserts that §303,203, Underground Waters,
provides
for the specific application of the general use standards to
the
underlying groundwater.
The Board need not address today whether Part 302 general
use water quality standards are applicable to all groundwater of
the State. Section 303.203 provides a more specific basis
for
application of these standards to the groundwater underlying the
Station. Section 303.302 provides:
The underground waters of Illinois which are a present
or a potential source of water for public or food
processing supply shall meet the general use and public
and food processing water supply standards of Subparts
B and C, Part 302, except due to natural causes,
The facts before the Board show that CIPS currently
draws
potable water from the aquifer presently being contaminated
by
the fly ash lagoon leachate for use by its employees, CIPS
operates three shifts per day of 30 to 40 employees.
Section
3(u) of the Act defines “public water supply” as:
61-49
6
all mains, pipes and structures through
which water is obtained and distributed
to the public, including wells and well
structures, intakes
and
cribs, pumping
stations, treatment plants, reservoirs,
storage tanks and appurtenances, collectively
or severally, actually used or intended for
purpose of furnishing water for drinking or
general domestic use and which
serve at least
15 service connections or which regularly
serve at least 25 persons at least
60 days
per year, A public water supply is either
a “community water supply”
or
a
“non—community
water supply.”
Under the terms of this section, CIPS
operates
a
public
water supply of the “non—community” type. Therefore,
§303.302
provides for application of the general use standards.
These
standards are currently being violated by CIPS
and the construction
of a nearly identical unlined fly ash pond would further
violate
the Board’s regulations,
cIPS argues that the use of groundwater by CIPS~for CIPS’
employees does not constitute operation of a “public, water
supply.”
This interpretation is clearly erroneous. There is ~o “employment”
exception to the Act’s definition. The definition of
“public
water supply” is broad in order to protect people, regardless
of
whether they are employed by the entity supplying the
potable
water,
CIPS further argues that because they own the property
overlying the aquifer and because they have no plans to
develop a
“public water supply” in the future that
they are free to con-
taminate the groundwater. This interpretation of §303.203
is
equally erroneous, Section 303.203
protects present and potential
underground water resources from contamination, It is clear
from
the adopting Opinion for
this provision that the Board intended
to protect all underground
waters except natural brines or waters
utilized for deep—well disposal
that could never
be
utilized as a
public water supply.
~
Revisions, R7l—l4, March 7, 1972, p. 11. Even if CIPS did
not
currently provide drinking
water to over “25 people at least 60
days per year,” the burden of proving
that the groundwater under-
lying the Station is not a potential
public water supply has not
been met. in fact, testimony at hearing supports the
position
that the aquifer in question is a
potentially productive source
of potable water (R. 122).
cIt’s has failed to prove that operation
of the proposed
unlined fly ash pond will not result in
violation of the Board’s
general use water
quality standards in the underlying groundwater.
The Agency
decision to
deny the construction permit was proper
and is affirmed,
61-50
7
ORDER
1.
The Agency decision to deny
CIPS a construction permit for a
proposed unlined
fly ash pond on the basis that §304.124
effluent standards
would be violated is reversed.
2. The Agency
decision to deny CIPS a construction permit for
a proposed unlined
fly ash pond on the basis that Part 302
general use water quality
standards would be violated is
affirmed.
IT IS SO ORDERED.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby certify
that the above Opinion and Order of the
Board was adopted pn
the
___________
day of
~
,
1984
by a vote of
Cc
~C
.
Dorothy M. /Gunn,
Clerk
Illinois Pollution Control Board
61-51