ILLINOIS POLLUTION CONTROL BOARD
December 17, 1998
CENTRAL ILLINOIS LIGHT COMPANY
)
(DUCK CREEK STATION),
)
)
Petitioner,
)
)
v.
) PCB 99-21
) (Variance - Water)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board upon a petition for variance (Pet.) filed on July 31,
1998, by Central Illinois Light Company (CILCO). CILCO requests a five-year variance from
the Board’s June 20, 1996 order in AS 96-8, which granted CILCO an adjusted water quality
standard for boron in water discharged at CILCO’S Duck Creek Station located southeast of
Canton, Fulton County, Illinois. Grant of the variance would allow CILCO to reduce the
existing elevated boron concentrations in Duck Creek Reservoir through natural attenuation.
The Board's responsibility in this matter arises from the Environmental Protection Act
(Act) (415 ILCS 5/1
et seq
. (1996)). The Board is charged therein with the responsibility to
“grant individual variances beyond the limitations prescribed in this Act, whenever it is found
upon presentation of adequate proof, that compliance with any rule or regulation, requirement
or order of the Board would impose an arbitrary or unreasonable hardship.” 415 ILCS 5/35(a)
(1996). The Illinois Environmental Protection Agency (Agency) is required to appear in
hearings on variance petitions. 415 ILCS 5/4(f) (1996). The Agency is also charged, among
other things, with the responsibility of investigating each variance petition and making a
recommendation to the Board as to the disposition of the petition. 415 ILCS 5/37(a) (1996).
The Agency filed its recommendation (Rec.) on November 24, 1998.
1
The Agency
recommends that the variance be granted. CILCO waived hearing (Pet. at 26), and no hearing
has been held.
For the reasons discussed below, the Board finds that CILCO has presented adequate
proof that immediate compliance with the regulations at issue would result in the imposition of
1
The recommendation was accompanied by a motion to file
instanter
. That motion is hereby
granted.
2
2
an arbitrary or unreasonable hardship. Accordingly, the variance will be granted, subject to
conditions set forth in the attached order.
BACKGROUND
Facility Description
CILCO operates a 400 megawatt electric generating station (station) located in an
unreclaimed strip-mining region southeast of Canton, Illinois. Pet. at 4. The station is
equipped with electrostatic precipitators and a wet scrubber desulfurization system that allows
the station to burn high-sulfur Illinois coal. Pet. at 5.
Among the auxiliary facilities at the station is Duck Creek Reservoir. The reservoir is
a 1,665 acre lake constructed by CILCO. Pet. at 5. Water from the reservoir is used at the
station for a variety of purposes, including cooling water requirements. Pet. at 5. Inflow into
the reservoir consists of recycled condenser, turbine, and auxiliary hydrogen cooling water,
house service water, boiler blowdown water, and stormwater runoff; infiltrated groundwater;
and inflow from the 15.5 square miles drainage basin of Duck Creek. Pet. at 3, 5.
Discharge from Duck Creek Reservoir occurs via a “morning glory” spillway that
discharges through a 1,100-foot tunnel into Duck Creek. Pet. at 6. This outfall is
denominated outfall 002. Pet. at 3. The flow in Duck Creek below the reservoir is most often
solely the flow contributed by outfall 002. Duck Creek is tributary to the Illinois River, which
it enters approximately 2.9 miles below the Duck Creek Reservoir dam. Exh. 2 at 3-8.
There is a separate water system at the station for managing scrubber effluent and fly
and bottom ash. Pet. at 5. These wastes are sluiced in slurry form to a recycle pond, where
the transport water is clarified and recirculated. Pet. at 5. The transport water is not, in
normal operation, discharged to the reservoir.
Regulatory History
In National Pollutant Discharge Elimination System (NPDES) Permit No. IL0055620,
effective October 23, 1993, the station was required to meet an effluent limitation of 1.0 mg/L
for boron applicable to outfall 002 beginning October 23, 1996. Pet. at 6. The 1.0 mg/L
limitation is the value of the General Use Water Quality Standard for boron, as then applicable
to Duck Creek.
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2
Duck Creek Reservoir is itself a “treatment works” rather than a “water of the state,” and is
hence not subject to water quality standards. In the Matter of: Petition of Central Illinois
Light Company (Duck Creek Station) for an Adjusted Standard from 35 Ill. Adm. Code
302.208 and 35 Ill. Adm. Code 304.105 (June 20, 1996), AS 96-8, slip op. at 2. The opinion
and order in Central Illinois Light Company (Duck Creek Station) is Exhibit 1 in the instant
record.
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3
On March 11, 1997, the Agency issued a new NPDES permit to CILCO in which the
boron effluent limitation was increased to 4.5 mg/L. This was done pursuant to the Board’s
order in Central Illinois Light Company (Duck Creek Station) AS 96-8, which adjusted the
boron water quality standard in Duck Creek and the immediate downstream portion of the
Illinois River. The operative language of the adjusted standard order is:
Instead of the water quality standard for boron set forth in 35 Ill. Adm.
Code 302.208, the discharge from outfall 002 shall not cause the boron
concentration in Duck Creek and the Illinois River to exceed the following
concentration: 4.5 mg/L from outfall 002 in Duck Creek to 100 yards
downstream of the confluence of Duck Creek with the Illinois River.
Central Illinois Light Company (Duck Creek Station) AS 96-8, slip op. at 9
On April 24, 1998, a new NPDES Permit No. IL0055620 was issued and became
effective on May 1, 1998. Pet. at 3. This permit both specifies the 4.5 mg/L limitation and
orders CILCO to comply with the standards and conditions of the Board’s order in Central
Illinois Light Company (Duck Creek Station) AS 96-8. Pet. at 3, Rec. at 4.
Boron in Duck Creek Reservoir
Duck Creek Reservoir has historically contained elevated levels of boron. Data
collected in support of the adjusted standard in Central Illinois Light Company (Duck Creek
Station) AS 96-8, indicated that during the period 1990 to 1993 minimum, average, and
maximum boron concentrations of boron were 2.32 mg/L, 2.96 mg/L, and 3.94 mg/L,
respectively. Pet. at 8. The Agency concluded at the time that the principal source of the
boron was groundwater infiltration. Central Illinois Light Company (Duck Creek Station) AS
96-8, slip op. at 2. Boron is abundant in the at- and near-surface coal-bearing strata and spoil
piles that occur within the basin of Duck Creek, from which it readily leaches into the
groundwater. Central Illinois Light Company (Duck Creek Station) AS 96-8, slip op. at 2.
Recently the concentrations of boron in Duck Creek Reservoir have been above the
previous norms. In particular, until 1996, boron concentrations measured in the outfall 002
discharges were typically one to two mg/L below the 4.5 mg/L standard. Exh. 2 at Table 4.3.
However, beginning in 1997, all measured concentrations have been above 4.5 mg/L, peaking
at 5.5 mg/L. Pet. at 8; Exh. 2 at Table 4.3.
CILCO contends, and the Agency agrees, that the current elevated boron concentrations
in Duck Creek Reservoir are due to overflow events from the recirculating ash disposal system
that occurred during February and March 1997. Pet. at 7; Rec. at 4. These events were
related to a then unexplained pressure loss in the return water system between the recycle pond
and the power plant. Pet. at 7. In order to maintain a sufficient water supply for ash sluicing,
CILCO was required to introduce house service water into the ash disposal system, which in
turn resulted in a series of overflows from the recycle pond into Duck Creek Reservoir. Pet.
at 7. Because the overflow waters contained relatively high boron concentrations, the boron
concentration in the reservoir correspondingly rose. Pet. at 7.
4
4
Both CILCO and the Agency agree that the cause of the overflow events has since been
remedied. Pet. at 7; Rec. at 4. CILCO does not anticipate that additional overflow events
will occur. Pet. at 8. The immediate question is how can the elevated boron concentrations in
the reservoir be reduced to the levels that existed prior to the overflow events, and thus bring
CILCO into compliance with the 4.5 mg/L boron standard established in AS 96-8.
STATUTORY AND REGULATORY FRAMEWORK
In determining whether any variance is to be granted, the Act requires the Board to
determine whether a petitioner has presented adequate proof that immediate compliance with
the Board regulations at issue would impose an arbitrary or unreasonable hardship. 415 ILCS
5/35(a) (1996). Furthermore, the burden is upon the petitioner to show that its claimed
hardship outweighs the public interest in attaining compliance with regulations designed to
protect the public. Willowbrook Motel v. IPCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032 (1st
Dist. 1977). Only with such a showing can the claimed hardship rise to the level of arbitrary
or unreasonable hardship.
A further feature of a variance is that it is, by its nature, a temporary reprieve from
compliance with the Board's regulations and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an individual polluter. Monsanto Co.
v. IPCB, 67 Ill. 2d 276, 367 N.E.2d 684 (1977). Accordingly, except in certain special
circumstances, a variance petitioner is required, as a condition to grant of variance, to commit
to a plan which is reasonably calculated to achieve compliance within the term of the variance.
COMPLIANCE PLAN
CILCO indicates that it considered four compliance options, three water treatment
processes and natural attenuation.
3
Pet. at 11. The treatment processes are: activated carbon
adsorption, selective ion exchange, and reverse osmosis/mechanical evaporation. Pet. at 11.
Of those processes, CILCO contends that activated carbon adsorption is technically infeasible
for the station. Pet. at 11. CILCO further contends that the remaining two processes,
selective ion exchange, and reverse osmosis/mechanical evaporation, are economically
unreasonable, costing $14,550,000 and $66,000,000, respectively. Pet. at 14.
CILCO asserts natural attenuation is feasible, economically reasonable, and predicted to
achieve the adjusted boron standard and current effluent limitation within five years. Pet. at
11. It explains that since precipitation and surface drainage with lower levels of boron will
enter the reservoir, natural attenuation will decrease the boron concentrations in the reservoir
and therefore also in Duck Creek. Pet. at 14.
3
CILCO explains it did not consider alternative operating procedures because no change in
operating procedures would reduce the boron levels caused by the historic overflow event.
Pet. at 10-11. Also, CILCO believes it has corrected the cause of that event. Pet. at 11.
5
5
Based on modeling involving mixing and precipitation considerations, CILCO estimates
that unassisted natural attenuation will bring the boron concentrations in the reservoir to 4.5
mg/L or below in a period of 60 months (five years). Pet. at 14; Exh. 2 at 4-9. Five years is
the term that is requested for the variance.
CILCO notes that it considered strategies for accelerating the natural attenuation by
adding water from the Illinois River to the reservoir. Pet. at 15. However, due to the risk of
introducing zebra mussels from the river into the reservoir, CILCO believes that this is not a
viable option. Pet. at 15. The Agency agrees that adding Illinois River water could have
devastating effects on the reservoir. Rec. at Footnote 3.
The Agency has reviewed CILCO’s compliance alternatives, and agrees with CILCO’s
conclusions. Rec. at 6. The Agency agrees that natural attenuation is the appropriate strategy
for CILCO to follow. Rec. at 4. The Agency further notes that it agrees with CILCO that
Duck Creek Reservoir will naturally achieve compliance with the 4.5 mg/L standard within the
period of the variance. Rec. at 6. In support thereof, the Agency notes that Discharge
Monitoring Report (DMR) data for the period from February to July 1998, are consistent with
on-going natural attenuation. Rec. at 6 and 7.
ENVIRONMENTAL IMPACT
CILCO contends that granting the requested relief would have no adverse impact upon
the environment. Pet. at 16. It relies on a number of studies that have been done of the
aquatic life in Duck Creek, the reservoir, and the adjacent Illinois River over the last 20 years.
Pet. at 16-20. These studies show no impact of boron on the aquatic community. Exh. 3-15
to 3-17. CILCO also does not anticipate adverse impacts on water uses. Pet. at 20. Finally,
CILCO notes that toxicological studies indicate that boron concentrations of 5.5 mg/L are not
expected to adversely impact human health, aquatic life, or terrestrial animals along Duck
Creek. Pet. at 21.
CILCO further observes that, because the Duck Creek Station discharge constitutes
such a small portion of the flow of the Illinois River, the increase of boron concentrations in
the Illinois River is small after mixing. Under the “worst case” scenario of boron discharged
at 5.5. mg/L at the highest recent flow rates from Duck Creek Reservoir, boron concentrations
in the Illinois River after mixing is calculated to be 0.013 mg/L. Exh. 2 at 4-18.
The Agency agrees that the 5.5 mg/L limit proposed for the duration of the variance
will not cause any adverse environmental impact. Rec. at 5. The Agency notes that it has
consistently supported increases in boron limits over 1.0 mg/L for discharges to streams that
are not used for irrigation, including CILCO’s 1996 adjusted standard. Rec. at 5. The
Agency further notes that it has supported, and the Board has granted, adjusted standards for
boron that are higher than the 5.5 mg/L requested by CILCO. Rec. at 5. Among these have
been adjusted standards set at 8.0 mg/L (Jefferson Smurfit in AS 92-3), 9.0 mg/L (Power
Cooperative in AS 92-10), 9.9 mg/L (Illinois Power Baldwin in AS 96-1), and 11.0 mg/L
(Springfield CWLP in AS 94-9). Rec. at 5.
6
6
HARDSHIP
CILCO asserts that compliance with the adjusted standard in Central Illinois Light
Company (Duck Creek Station) AS 96-8, would impose an arbitrary and unreasonable
hardship due to the high costs CILCO would face to implement any technically feasible
compliance option besides natural attenuation, and because granting the variance would have
no adverse impact on health or the environment. Pet. at 22.
CONSISTENCY WITH FEDERAL LAW
CILCO maintains that the Board has the authority to grant the requested relief
consistent with the Clean Water Act, under Section 303 of the Clean Water Act, (33 U.S.C.
§ 1313). Pet. at 25.
DISCUSSION
The Board finds that CILCO has demonstrated that immediate compliance with the
regulations at issue, which can be achieved only through great expense, is a hardship. The
Board further finds that the hardship outweighs any negative environmental impact that might
occur in the time period during which the variance would be in effect. Given these
circumstances, the Board finds that denying the requested variance would be an arbitrary or
unreasonable hardship.
The Board notes that in its phrasing of the language of the variance it has purposefully
paralleled the language used in the adjusted standard. The intent is to emphasize that for the
term of the variance the conditions imposed in this variance apply instead of the conditions
specified in the otherwise still active order issued in the adjusted standard, Central Illinois
Light Company (Duck Creek Station) AS 96-8.
This opinion constitutes the Board’s findings of fact and conclusions of law in this
matter.
ORDER
Central Illinois Light Company (CILCO) is hereby granted a variance applicable at
CILCO’s Duck Creek Station. The variance is subject to the following conditions:
1.
This variance begins on December 17, 1998, and terminates on December 17,
2003.
2.
This variance applies only to discharges to Duck Creek from outfall 002 of an
existing facility currently owned and operated by CILCO and located in Fulton
County, Rural Route #5, Canton, Illinois.
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7
3.
During the term of this variance, such discharges are not subject to 35 Ill. Adm.
Code 304.105 as it applies to the water quality standard for boron set forth in 35
Ill. Adm. Code 302.208; to the water quality standard for boron set forth in 35
Ill. Adm. Code 302.208; or to the water quality standard for boron set forth in
the Board’s order in In the Matter of: Petition of Central Illinois Light
Company (Duck Creek Station) For Adjusted Standard from 35 Ill. Adm. Code
302.208 and 35 Ill. Adm. Code 304.105 Regarding the Parameter Boron (June
20, 1996), AS 96-8.
4.
During the term of this variance the discharge from outfall 002 may not cause
the boron concentration in Duck Creek and the Illinois River to exceed the
following concentration: 5.5 mg/L from outfall 002 in Duck Creek to 100 yards
downstream of the confluence of Duck Creek with the Illinois River.
IT IS SO ORDERED.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 172 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 17th day of December 1998 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
