ILLINOIS POLLUTION CONTROL BOARD
January
21,
1982
ti~L~INOISPOWER
COMPANY
(Vermilion
Power
Station),
Petitioner,
v.
)
PCB
79—61
IL~T~It’1OISENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
SHELDON
A.
ZABEL
AND
CAROLYN
A.
LOWN,
SCHIFF
EIARDIN
&
WAITE,
APPEARED
ON
BEHALF
OF~
PETITIONER;
BRUCE
T~. CARLSON,
APPEARED
ON
BEHALF
OF
RESPONDENT.
~)P1:NION
AND
ORDER
OF
THE
BOARD
(by
I.
Goodman)
This
matter
is
before
the
Board
on
the
March
22,
1979
Petition
by
Illinois
Power
Company
(IPC)
for
review
of
certain
conditions
in
the
NPDES
permit
issued
by
the
Illinois
Environmental
Protect~tDn
~qen~y
(Agency)
for
IPC’s
Vermilion
Power
Station
(Station)
located
n~arOakwood, Vermilion County,
Illinois.
Pursuant to a motion h~
IPC,
the
Board
on
March
29,
1979
stayed
the contested conditio~’is
contained in
the
NPDES
permit.
On
May
30,
1979
the
Agency
filed
a
Motion
to Strike certain portions of IPC’s petition.
On June
22,
J~79
the
Board
ordered
the
motion
taken
with
the
case.
That
motion
~ia~
subsequently
withdrawn
by
the
Agency in its brief
filed
July
24,
1981.
On
December
12,
1980
the
Hearing
Officer herein requested
Ba.rd
review
of
his
November
21,
1980
ruling which upheld objection
by
the
Agency
to
interrogatories
filed
by
IPC
on
July
8,
1~80.
These
interrogatories
concerned
the
treatment
by
the
Agency
of
other
permit
applicants
situated in conditions similar to those
of
IPC.
On
January
8,
1981
the
Board
affirmed
the
Hearing
Officer’s ruling stating in effect that how the Agency
handle~.
other similarly situated permit applicants was not a proper
suhiect
for Board review pursuant to Section 40 of the Illinois
Environmental Protection Act.
A hearing was held in this matter
on April
23,
1981 at which time the parties herein presented a
partial Stipulation of Facts to the Board.
The Board has received
no public comment in this matter.
IPC constructed a
120 acre,
687 million gallon reservoir
near:
the Station on land that is owned by IPC.
The reservoir was
constructed by erecting ~n earth dam, dikes, and a spiliway
in a
ravine adjacent to the Station
(See Exhibit B to the
Stipulation).
45—89
2
Construction of the reservoir was made necessary by the fact that
the Vermilion River could not be relied upon to provide sufficient
water for the Station’s needs due to frequent periods
of low flow.
Approximately 61 percent of the water in the reservoir
is obtained
by pumping from the Vermilion River, the balance being rainfall
and runoff from the surrounding area.
The reservoir is not a cooling
lake,
as defined by Board
Regulations, but rather is a holding basin from which make—up
water is drawn to replace that evaporated in the Station’s
viechanical draft cooling towers.
To avoid an excess of build-up
of dissolved solids
in the water recirculated through the cooling
towers,
the towers are blown down (old tower water is replaced
with fresh water)
at an average rate of 0.465 mgd.
The blowdown
water is used to sluice ash to the ash pond after which
the water
is treated and discharged to the Vermilion River.
Another 0.503
mgd
is withdrawn from the reservoir and used for various in—plant
purposes including approximately 0.046 mgd for boiler blowdown,
which
is
returned to the reservoir along with any flow from roof
and
floor drains.
The parties stipulated that there is generally no discharge
from
the
reservoir to the Vermilion River hut spillover from the
reservoir can occur during heavy rainfall and runoff depending
upon conditions.
Such spiliover has historically occurred on an
average
of
15 days per year,
continues for an average duration
of
9-1/2 days and releases an average of 31 million gallons per
occurrence.
Although
the
reservoir was constructed to provide
a reliable
supply
of
make-up
water
to
the
cooling
towers,
it
has
also
been
used
by
the
Vermilion
Fishing
Club,
Inc.,
a
private
organization
for recreational fishing under a lease agreement with IPC (Stipu-
lation Exhibit D).
Pursuant to the lease,
IPC may terminate the
lease whenever in its sole judgment, the conduct of its operations
require such termination.
The Stipulation also includes a number
of other
facts which are not relevant to this proceeding.
The proposed settlement contains discussions of certain
issues which the parties have resolved among themselves by with-
drawing objections, modifying the lan9uage of certain permit
conditions, and adding certain conditions
to the permit.
The
parties request,
in addition to deciding the remaining disputed
issues in this case,
that the Board remand the permit to the
Agency for the clarifications agreed to in Part B,
Paragraphs
2,
3,
4,
5,
6,
7,
8,
and
9
of the Stipulation to the extent that the
clarifications are not rendered moot by the Board’s determination
on remaining issues.
The basic issue that the Board must determine in this case
is whether or not the reservoir.is
to be termed a water of the
State.
This determination will dictate which of the Board’s
regulations pertain to the reservoir and the manner in which they
45—90
3
shall be applied.
It is clear that the reservoir, as an artifi-
cial accumulation of surface
water privately
owned and wholly
within the State of Illinois,
is a water of the State unless
it falls within the exception for sewers and treatment works.
“Treatment works,” as defined in Chapter
3, means individually
or collectively those constructions or devices (except sewers,
and except construction or devices used for the pretreatment of
wastewater prior to its
introduction
into publicly owned or
regulated treatment works) used for collecting, pumping, treating
or disposing of wastewaters
or for
the recovery of byproducts
from such wastewaters~
This reservoir is a construction used for
collecting,
pumping, treating or disposing of wastewaters
in that
it receives and stores the boiler blowdown wastewater
for eventual
use
in the cooling towers prior to treatment and discharge to the
Vermilion River.
In finding this reservoir a treatment works,
the Board makes no finding concerning the permit status of this
or
any other similar body of water so constructed in the future.
In
addition to receiving and storing wastewater, the reservoir
also
receives and stores make~upwater for the cooling towers.
This
additional use clouds the treatment works issue and presents
the
Board with a question very
much
like
that of the perched or side
channel
lake identified primarily with the topic of cooling lakes.
The issue of “perched” or “side channel”
lakes which are
treatment works impoundments, and therefore not waters of the
State, has previously been before this Board on a number of
occasions.
In a cooling
lake case where a
natural stream had
been
dammed to form an impoundment,
the
acquisition of more than
half the impounded waters
from some
other
source was
foundby
the Third District Appellate
Court to relieve
the impoundment of
regulation as an artificial
cooling lake,
Environmental Protection
~
a?
Illinois
Li
Fi
comEany,
54
Ill. App.
3rd 155,
23 PCB 107,
This decision
was
an
interpretation of Board language
in the Opinion supporting the promulgation of Rule 203(i)(10) of
Chapter 3:
Water Pollution
Regulations.
The Board was making a
distinction between a cooling lake which was
a water of the State
and a perched or side channel lake which are considered treatment
works stating “where artificial
dikirig is erected, and water to
fill the resultant enclosure is largely obtained by withdrawal
from a nearby natural body of water such as a lake or river, the
enclosure constitutes a treatment works.”
The Third District
Appellate Court interpreted the word “largely”
as meaning
51
percent or more of the water coming from a pumping operation.
Principally in response to the Third District decision in the
Central Illinois Light Company case, the Board instituted a
series of hearings designed to develop a permanent rule which
would determine what constituted a treatment works with respect
to an impoundment.
The Board found that it would be impossible
to promulgate a rule that could cover all of the potential
criteria for determination that a particular body of water was
or was not a treatment works and thus dismissed the proceeding,
R77-17,
stating it would consider such impoundments on a
case—by~casebasis
in the future.
45—91
4
In
this case, there
is a reservoir created by damming a
ravine
to
contain sufficient
water to service IPCV5 Vermillion
Station condensors since
the
Vermillion
River is not capable of
supplying sufficient amounts of water
at
all times.
Since the
reservoir is not used to dissipate the heat generated by the con-
densors,
there is no
contention
that
the
impoundment constitutes
a
cooling lake,
Nevertheless,
similarity
between the reservoir
and cooling lake is sufficient
for
the Board to use the rationale
in Environmental Protection Ag~~v, Central IlUno~~ht_Corn2an~
id., to the facts in this
case.
The damming of a ravine for the use of a reservoir of water
must be considered as much a matter of logic as it is an attempt
to collect the natural waters which are normally encountered with
the presence of a ravine,
Certainly if one wishes to store
water
the preferred configuration
would
be
a deep hole where there is
little surface area as possible in order to lower evaporative
losses and minimize the amount of real property required.
The
amount of water contributed to an impoundment by pumping as
opposed to that contributed by natural sources is
a criterion in
the determination of whether
the
impoundment
is to be considered
a perched or side channel lake,
Unlike most cooling lakes,
the
intermittent stream involved in this case
is not only not the
total
source of water in the impoundment but does not contribute
even
a majority of the water,
According
to the Stipulation,
61
percent of the water in the impoundment is pumped from the
Vermillion River, the balance coming essentially from precipitation
and land runoff,
Public access and public use is another of the
criteria which may
be. used in the determination of an impoundment’s
designation.
Here it is stipulated that the ravine
is located on
property owned and controlled by IPC and there is no public access
to the impoundment but there is use of the impoundment by a private
organization under a contract with IPC.
The use by the private
club under a contract cannot be construed as public access to the
impoundment,
The fact that the impoundment is large and apparently
supports
a fishery is likewise not determinative,
The facts in this case seem to be fairly equally divided
between supporting
a position that the reservoir is a water of
the State and supporting the position that it is a perched or
side channel impoundment.
On balance,
the Board
finds that the
facts
in this case favor a finding that the impoundment is a
perched or side channel
lake.
That finding, coupled with the
prior finding under the facts of this case that IPC uses the
impoundment as a treatment works
for its boiler blowdown, leads
the Board to the conclusion that the impoundment is not a water
of the State and that discharges out of rather than into the
impoundment are subject to
regulation
under the NPDES rules.
Another unsettled issue presented by the parties is IPC’s
objection to standard condition #27 because the condition,
as
written by the Agency,
fails
to
provide IPC the specific
right
to appeal the exercise of Agency authority in establishing cer-
tam
conditions in the permit in addition to the specific right
45—92
5
to appeal the
condition
itself.
This issue was addressed by the
Board in
Illinois_Powerç~~anyv.
EPA, PCB 79-243,
There,
the
Board made
clear in
its Order dated December 18,
1980 that the
right to appeal a permit condition imposed pursuant to Rule 910
(a)(6) of Chapter
3,
includes the right
to
challenge the exercise
of that authority.
That issue,
inter alia,
was appealed to the
Third District Appellate Court.
Although the Third District
perceived the
issue to
be the right of the Agency to exercise
the authority and therefore declined to decide the issue terming
it premature,
it did
address IPC’s concern
in dicta.
The
Court
said “the Board
has
clearly stated that
Petitioner can
attack
the
exercise
of the Agency’s authority to impose limitations
under
Rule
910(a)(6),
if the
Agency invoked such
authority.. .the
Board
has
acknoiwedged Petitioner’s
right to review
any such
modifica-
tion in
the permit.
This
preserves all
of Illinois
Power’s
right
to review
such conditions
and therefore
its proposal
to condition
27
is
extraneous,”
Illinois
Power ComE~~y.
Illinois Pollution
Control Board and The Illinois Environmental_ProtecUon~enc1,
No. 81-34
Appellate Court
of Illinois,
Third District
(September
30,
1981).
The Board holds
that the
Agency~s
condition
27 suf-
ficiently
reserves IPC’s
rights of appeal
and will
therefore
uphold condition
27
as written,
With
regard to the
Agency’s denial
of
IPC’s permit
application
to discharge
from
IPC’s
reservoir into the Vermilion
River, the Board’s
findings
today
will
result
in a
reversal of
that denial,
However,
IPC’s objection to standard condition #13
as being ambiguous
is
without merit.
Standard condition #13 is
upheld as
written,
IPC
also argues that 906(f)
of Chapter 3
mandates the evaluation by the Agency of any
comments
received
concerning a draft
NPDES
permit and requires a reasoned response
to be provided by
the
Agency.
Although dialogue between the
Agency and a
permittee
is
to he encouraged during the pendency
of the permit application, the Board finds that
Rule
906(f) of
Chapter
3 demands only that the Agency evaluate the comments and
either issue
or deny the
permit.
There is
no mandate that
the
Agency respond
to the
comments
in writing or otherwise,
With regard to the
balance of the
disputed issues
in this
case,
the Board
will
accede to the parties request that the permit
be remanded
to the Agency for
the clarifications agreed to in
Part
B,
Paragraphs
2,
3,
4,
5,
6,
7,
8,
and
9
of the
Stipulation
presented at
hearing,
to
the extent those clarifications are not
rendered moot
by this Opinion.
This Opinion constitutes the findings
of fact and the con-
clusions of
law
of the
Board in this matter,
45—93
6
OER
1,
NPDES Permit #IL0004057 issued by the Illinois Environmental
Protection Agency for the Vermilion Power Station of
Illinois Power Station is hereby remanded to the Agency for
modification consistent with the Opinion herein.
2.
The Board shall retain jurisdiction in this matter.
IT
IS
SO
ORDERED.
I,
Christan
L, Moffett,
Clerk of the Illinois Pollution
Control Board,
hereby
certify that the above Opinion and Order
was adopted ~n
the~f~
day of
,
1982 by
a vote of
_~~±i’.~::c)
Christan L. Mo~f
),
Clerk
Illinois Polluti
Control Board
45—94