ILLINOIS POLLUTION CONTROL BOARD
October
2, 1980
ILLINOIS POWER COMPANY,
(Hennepin Power Plant),
)
Petitioner,
v.
)
PCB 79—243
ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
MR. SHELDON A. ZABEL AND MS. CAROLYN A. LO~N, SCHIFF, HARDIN
&
WAITE, APPEARED ON BEHALF OF THE PETITIONER.
MR. WILLIAM J. BARZANO, ASSISTANT ATTORNEY GENERAL, APPEARED ON
BEHALF OF THE RESPONDENT.
OPINION
AND
ORDER OF THE BOARD
(by D.
Satchell):
This matter comes before the Board upon a petition for review
of NPDES permit No. IL0001554 filed by Illinois Power Company
(IPC)
on November 21,
1979.
The permit was reissued by the En-
vironmental Protection Agency
(Agency)
on October
23,
1979 for the
Hennepin Power Plant,
a coal—fired steam electric power plant
located in Hennepin, Putnam County.
The Agency’s answer was filed
December 19,
1979.
The Board has previously entered four Orders
concerning stay of permit conditions
(January 10,
1980,
37 PCB 153;
February 7,
1980,
37 PCB 289;
March
6,
1980,
37 PCB 479 and June
18,
1980).
The procedural history is further detailed below.
A
public hearing was held on May
8,
1980 in Hennepin.
Members of
the public did not attend and the Board has received no public
comment
(R.
8,
105).
The petition for review originally contained fifteen objec-
tions.
On December 17,
1979 the petition was amended to correct
a typographical error.
On March 10,
1980 IPC filed a specifica-
tion of errors with respect
to paragraph fifteen of the petition.
On June
6,
1980 the parties filed a proposed settlement of many
of the issues raised by the petition for review.
The parties re-
quested that, after reaching decision on the unsettled issues,
the
Board~remandthis case to the Agency for issuance of a permit in
accordance with the parties’
settlement.
The unsettled issues are
as follows:
CHLORINATION:
Attachment Bl, Table and paragraphs
five and
seven.
This condition specifies a limitation of 0.2 mg/i total
chlorine residual for discharge 001.
—2—
Attachment El, para9raph
seven,
This condition requires that
a concentration curve for total chlorine residual be developed
weekly and submitted with the discharge monitoring report.
FILTER BACKWASH:
Attachment B1B, paragraph one and Attach-ET?1 w?93 631 m?520 631 l?S?BT?
ment H,
standard condition no
22
These conditions involve the
discharge of debris in other than trace amounts into the cooling
water flume
as
a result of screen washing operations.
RESPONSE TO COMMENTS:
Paragraph fifteen of the petition for
review objects in general to the failure of the Agency to follow
regulations which require it to respond to all significant com-
ments and objections which were made to the draft permit and to
indicate which provisions,
if any,
of the permit have been changed
and the reason for the change.
MISCELLANEOUS:
Attachment B2, paragraph four.
This condition
would require that oils,
fats and greases be sampled for discharges
002
arid 005,
ash lagoons nos.
1 and
3.
IPC contends that there
is
a
redundant sampling requirement in the table portion of Attach-
ment B2,
Attachment B3, paragraph four.
This objection is essentially
the same as that with respect to paragraph four of Attachment B2
except that it involves discharge 003, ash lagoons nos,
2 and
4.
Attachment H,
standard condition no.
27.
This condition
would allow the permit to be modified, revoked and reissued with
provisions for more stringent limitations or for additional con-
trols or for incorporation of an approved 208 plan.
RESIDUAL CHLORINE
The Hennepin plant draws non—contact cooling water from the
Illinois River,
Nutrients in the water cause inside the cooling
system the growth of slime which tends to block the pipes and re-
duce the efficiency of heat exchange
CR.
28).
To alleviate this
problem the cooling water is periodically chlorinated.
The
table and paragraphs five and seven of Attachment B? specify a
limitation of 0.2 mg/l total chlorine residual for discharge 001.
The original NPDES permit issued by USEPA in 1975 contained
a chlorine limitation to which IPC objected.
In settlement the
old condition was stayed while IPC installed equipment to provide
chlorine injection right
at each condenser and to study the levels
of chlorine which would be required.
The modification
cost
$34,000, but reduced IPC’s chlorine consumption from
21,000
to
15,000 kg/yr
(from 46,000 to 32,000 pounds per year)
(R,
25).
IPC
requested modification of the old permit to contain the limitation
noted above, but this request was never acted upon
CR.
26).
IPC
has met this standard since 1976
CR.
27,
37).
—3—
The Board’s rules contain no standard for chlorine in this dis-
charge.
At the time the old permit was issued the United States En-
vironmental Protection Agency
(USEPA) had promulgated no applicable
limitations; however,
a limitation has been adopted in the interim
CR.
28).
This
is contained in 40 CFR Part 423.
The parties have not
specified which section and the Board is not able to determine which
on the basis of the facts before it.
The applicable limitation ap-
pears to be 0.5 mg/l daily maximum and 0.2 mg/l thirty day average
free available chlorine
40
CFR Section 423.12(b)
(7)1.
Other sections
contain similar rules applicable under different circumstances.
For
purposes of this discussion,
these rules are identical.
IPC does not treat for chlorine in its discharge; the level is
controlled by the amount of chlorine used.
This depends on the
chlorine demand of its intake water
CR.
27).
Because of the cost of
chlorination IPC would have an incentive to minimize its chlorine
discharge apart from any permit condition.
In its permit application IPC requested the chlorine limitation
which the Agency imposed.
However, prior to permit issuance IPC re-
quested that the Agency instead impose the less stringent federal
limitation
(R. 26, 36).
Although IPC has no present indication that
it will have to increase its level of chlorination, it requested the
federal limitation out of fear that it would be unable to obtain
modification of the permit in the future should the need arise
(R.
27).
During the pendency of the application USEPA adopted the “no
backsliding” rule which could be construed as
limiting such modifi-
cation
40
CFR Section 122.15
Ci)
;
44 FR 32,854,
32,964
(1979)
;
40
CFR Section 122.62;
45 FR 33,290,
33,450
(1980).
(Since the old
permit contained no chlorine limitation, the “no backsliding” rule
does not operate to preclude issuance of this permit with the higher
limitation.)
In writing an NPDES permit the Agency may impose effluent limit-
ations based on the Board’s regulations or upon federal limitations
Rule
910(a)
of Chapter
3:
Water Pollution
(Rules); Section 301(b)
(1) (C)
of the Federal Water Pollution Control Act (FWPCA).
Under
Rule 910(a) (6)
the Agency is authorized to impose effluent limita-
tions such as
“are necessary to carry out the provisions of the
FWPCA” prior to promulgation of limitations by the Administrator of
USEPA.
Rule 910(a) (6)
is inapplicable now that limitations have been
promulgated.
The Board is aware of no other provision which would
authorize the Agency to actually set an effluent limitation in
a
permit.
The conflicting Appellate Court cases which have con~trued
Rule 910(a) (6)
support the proposition that under the Act the Agency’s
authority to set effluent limitations
is non-existent or at most very
limited Peabody
Coal
Co.
v. PCB,
36 Ill. App.
3d
5;
(5th Dist.
1976);
U.S. Steel v. PCB,
52
Ill. App.
3d 1
(2d Dist.
1977).
Upon remand
the Agency shall reissue the permit with a chlorine limitation giving
consideration to the applicable federal limitations.
—4—
CHLORINE MONITORING
Paragraph seven of Attachment Bl provides for monitoring and
reporting of chlorine in outfall 001.
It requires IPC to monitor
total chlorine residual and to submit weekly a concentration curve
for total chlorine residual.
Reporting and monitoring are dis-
cretionary permit conditions imposed pursuant to Rule 910(f).
IPC presented testimony that development of the concentration
curve required it to take twenty—two samples which took a minimum
of two hours.
It takes another hour to plot the results.
Weekly
curves might require employment of additional personnel
(R.
30).
Weekly curves developed during February and March, 1980 show only
insignificant deviation.
However, past experience indicates that
chlorine levels vary somewhat on
a seasonal basis
(R.
31; Ex. A
to the testimony of James
C. Schmitt).
NPDES permits should contain those terms and conditions which
may be required to accomplish the purposes and provisions of the
Act
Section
39(b)
of the Environmental Protection Act
(Act).
IPC has established that the concentration curves do not vary
significantly from week to week within a given season.
A quarter-
ly curve would therefore accomplish equally well the purpose which
the weekly curve
serves.
The latter is therefore not required to
accomplish the result and the less expensive quarterly alternative
should be imposed.
The Board has above required substitution of a chlorine
limitation based on federal guidelines which are written in terms
of free available chlorine rather than total residual chlorine.
The Board is aware of no rule requiring or proscribing monitoring
by either method.
Upon remand the Agency will be given the option
of either modifying the residual chlorine monitoring condition to
provide for quarterly concentration curves, or of substituting a
condition based upon another method of measuring chlorine.
FILTER BACKWASH DISCHARGE
As noted above, the Hennepin plant draws non—contact cooling
water from the Illinois River,
To protect the condensers the
water is first passed through racks and intake screens to remove
debris,
Large items are removed from the racks by hand and land—
filled,
The one—half inch mesh screens catch smaller items such
as
leaves,
twigs and fish.
The screens are periodically-back—
washed to remove these items.
The screens are raised to a spray
mechanism which uses water to force the impinged materials off
the screen and into a trough,
The trough channels the spray
water and dislodged materials to the circulating water discharge
flume which returns the material to the river
(R,
32).
—5—
Paragraph one of Attachment BiB contains the following con-
dition:
“There shall be no discharge of debris
in other than
trace amounts into cooling water flume as
a result of screen
washing operations”
CR.
58).
The Agency’s position is that this
permit condition is mandated by Rule 403
(R.
73)*:
In addition to the other requirements of this Part, no
effluent shall contain settleable solids,
floating
debris, visible oil,
grease, scum,
or sludge solids.
Color, odor and turbidity shall be reduced to below
obvious levels.
IPC contends that the Agency is without power to impose
a
permit condition which would require it to remove pollutants
which are already in the river.
The FWPCA only prohibits the
addition of pollutants to navigable waters
Appalachian
Power
Co.
v. Train,
545 Fed 2d 1351,
1377
(4th Cir.
1976).
However,
the Agency’s authority is based in part on Sections
12(f)
and
39(b)
of the Act.
The condition in question is based on a more
stringent state limitation in accordance with Section 301(b) (1) (C)
of the FWPCA.
IPC has cited no law restricting the Board’s juris-
dication to adopt regulations requiring removal of background con-
taminants.
However, Rule 401(b)
states that it is not the intent
of the Board to require users to clean up contamination caused
essentially by upstream sources.
At the hearing the Agency clarified the intent of the permit
condition:
It was to cover only the discharge of dead or dying
fish above
a certain unspecified level
(R.
76,
79,
81,
84,
87).
It was not intended to cover leaves
and twigs and other inert
material
(R.
76,
81).
These limitations should be included in
the language of the condition.
Many fish are alive and are killed or merely damaged when
impinged on the intake screens
(R.
75, 79,82,
100).
These live
fish do not constitute “background” within the meaning of Rule
401(b).
The dead fish which are discharged are contaminants
which result from IPC’s process.
The burden of proof is upon IPC
and it has not demonstrated that the fish are dead when taken in
(Section 40 of the Act).
The fact that the permit condition might
incidentally require IPC to remove a few already dead, background
fish from its discharge would not serve to invalidate the condition.
*In a previous Order on a motion to stay the Board character-
ized this condition as discretionary
(March
6,
1980;
37 PCB 479).
Being now fullyapprised of the facts the Board will reverse that
finding.
—6—
Prior to this permit application IPC demonstrated pursuant
to Section 316(b)
of the FWPCA that its “intake structures re-
flect the best technology available for minimizing adverse en-
vironmental impact”
(R.
32,
52,
90).
On December 29,
1978 the
Agency approved the demonstration
(R.
32;
Ex.
B attached to
transcript).
IPC contends that the Agency is therefore barred
from now questioning its dead fish discharge.
The employee who
wrote the permit was actually unaware of the 316(b)
demonstration
(R,
58, 96),
The Agency contends that the 316(b)
study concerned
whether the structure minimized fish impingement without regard
to whether impinged fish were properly disposed of
(R.
64, 93).
Section 316(b)
refers to “intake structures,”
IPC quotes:
“The term design shall mean the arrangement of elements that make
up the cooling water intake structure
40
CFR Section 402.11Cc)
(R.
91, 96).
The trough and channel from the backwashing opera-
tion to the return flume would be better described as “discharge”
rather than “intake structures,”
The Board therefore holds that
the Section 316(b) demonstration does not preclude the AgenOy from
imposing conditions on the backwash discharge.
The Agency had no information before it at the time it issued
the permit concerning rates of impingement or discharge of dead
fish
CR.
58,
63,
82,
86,
96).
The condition was based upon the
permit writer’s general knowledge about this type of facility,
gained in part from review of other permits
(R.
82),
The Agency
should apply expertise and experience in writing permits.
To
require permit proceedings to be based on a formal record of
the type suggested by IPC’s objections to this would impose a
large expense on the Agency and dischargers.
Since the burden
of proof is upon IPC, the Board will assume that a set of facts
exists to support imposition of the condition, unless the permittee
introduces facts to the contrary.
The Agency introduced over IPC’s objection evidence comparing
the fish impingement rates
at Hennepin with two other power plants
CR.
43,
59,
68; Exs,
5,
6, 7A and B),
IPC criticized these
studies since they did not allow for comparison of intake rates
or level of operation of the plants or any comparison of aquatic
communities in the vicinity of the intakes
CR.
54).
Since the
issue is not the rate of impingement but the rate of discharge of
dead fish, the studies are not very informative
(R.
79).
Further-
more, whether other power plants have a higher or lower rate of
fish discharge would be only remotely related to whether the dis-
~h~ge
is proscribed by Rule 403,
The impingement studies are not in the Agency record and were
made after the permit was issued
(R.
86),
The Agency’s findings of
fact resulting in application of Rule 403 are presumed correct.
—7—
The Board is aware
of no evidence introduced by IPC which tends
to rebut this presumption.
The exhibits and testimony concerning
impingement rates will be stricken as irrelevant.
Rule 403 speaks of “floating debris” while the permit condi-
tion
extends
to
“debris
in
other
than
trace
amounts.”
The
condi-
tion
covers debris other than the floating variety, which may, or
may not, fall within the other categories of Rule 403 such
as
settleable or sludge solids.
In addition, the permit condition
speaks of “trace amounts,”
a term not found in Rule
403.
There
is
a question as to whether this is more or less stringent than
the requirement of Rule 403.
Upon review of a mandatory permit condition the Board must
determine whether the permit condition correctly incorporates
the mandating rule into the permit.
As noted in connection Wjth
the chlorine condition,
the Agency’s authority to impose effluent
limitations
is limited.
However, in the case of application of an
effluent limitation such as Rule 403, which
is not simply a numer-
ical limitation, the Agency has the authority to further define
the rule as applied in the context of the permittee’s situation.
In this case the condition does not correctly state the Board rule
and there appear to be unnecessary changes in language which do
little to make the condition more specific than the rule.
On re-
mand the Agency will be authorized to replace this condition with
one which correctly states Rule 403 as applied to this facility.
IPC contends that the only way to comply with the permit con-
dition would be to install a debris catcher or collection basket
in the path of the water returned to the Illinois River.
An all
weather access would have to be constructed.
IPC estimates this
would involve an investment of $250,000 and $12,000 in annual
operating and maintenance costs
(R. 34).
The Agency says that IPC
could comply with the condition by installation of “trash collec-
tion baskets” similar to those at IPC’s new Clinton power plant
CR.
97).
It is not clear if this is the same as IPC’s compliance
plan.
The Agency also mentions
a catchment basin prior to discharge
to the river
CR.
77).
IPC admits that it has not actually conducted
studies of the feasibility of other methods of compliance
(R.
39).
If the permit condition can be rewritten so that it is mandated
by Rule 403,
IPC’s cost of compliance is irrelevant.
Relief is
available only through a variance from Rule 403 or by way of a rule
change
(Peabody Coal Co.
v. EPA, PCB 78—296, May 1,
1980,
p.
4).
IPC estimates that it will require some nineteen months to
comply with the conditions
CR.
34).
When the Board or USEPA im-
poses
a new requirement on dischargers there is usually a time
provided for compliance.
Rule 403 was in effect in its present
form when the Agency certified the previous permit which contained
—8—
no similar provision
(R.
88).
Although the time for coming into
compliance with Rule 403 has elapsed,
IPC may have been misled
by the Agency’s previous interpretation.
Therefore, any condition
written on remand should include a reasonable time for compliance.
IPC also objects to standard condition twenty-two of Attach-
ment H:
Collected screenings,
slurries, sludges, and other
solids shall be disposed of in such a manner as to pre-
vent entry of those wastes (or runoff from the wastes
)
into waters of the State.
The proper authorization for
such disposal shall be obtained from the Agency and is
incorporated as part hereof by reference.
‘~PheBoard interprets this
as derived from Section 12(d)
of
the Act, deposit of contaminants upon the land so as to create a
water pollution hazard.
So construed the condition would not
apply to the filter backwashing operation itself, but would apply
to any screenings after they had been filtered or skimmed and
collected for disposal outside the discharge structures.
The
condition should be modified to state this expressly.
RESPONSE TO COMMENTS
On or about August 17, 1979 the Agency issued a draft permit.
On September 13,
1979 IPC mailed to the Agency its comments on the
draft permit.
On October
3,
1979 the Agency issued the permit
(Answer items
1,
4,
8).
Federal regulations applicable to state
NPDES permit programs require that a response to comments be pre-
pared along with the final permit.
The response must contain
reasons for changes in the draft permit and a description of and
response to all significant comments
Rule
906(f);
40 CFR Sections
124,12 and 124.63.
The Agency states that it made response to
comments through telephone conversations and through the act of
issuing the permit
CR.
65).
No written response was ever prepared.
IPC contends that compliance with the response to comments
provisions would have assisted the parties in framing the issues
at an earlier stage of this proceeding.
IPC concedes that there
may be no appropriate remedy since it has now come to the Board
with the ultimate issues
CR.
18).
It does, however,
request a
ruling.
The Board agrees with IPC that the regulations require
a written response to comments,
MISCELLANEOUS CONDITIONS
The table
in Attachments B2 and B3,
ash lagoon discharges
002,
003 and 005, provide for monitoring of oil and grease by grab sam-
ples twice monthly.
Paragraphs four of each attachment require a
—9—
grab sample of oil,
fats and greases
at six month intervals.
Monitoring and reporting are discretionary permit conditions im-
posed pursuant to Rule 910(f).
IPC contends that the duplicate conditions are ambiguous;
however, there is
an obvious clear meaning.
Sampling is to be
done twenty—six times per year as required by each condition.
On their face the conditions seem to relate to different
parameters.
IPC has not established that they are the same in
order to show that the reporting is redundant.
The Board could
uphold the conditions on this basis.
However, the Board will
instead take official notice of Standard Methods for the Examina-
tion of Water and Wastewater,
14th Edition
(1975),
p.
513 (Attach-
ment H, standard condition 18).
“Grease and oil” includes “hydro-
carbons,
fatty acids, soaps,
fats, waxes, oils
.
.
.
“
The permit
conditions therefore relate to the same parameters and involve the
same analyses.
The conditions involve only duplicate reporting
every six months.
IPC does not claim any ambiguity in the denom-
ination of the parameters
or method of analysis.
IPC has presented no evidence concerning the cost of the
duplicate reporting.
The Board therefore finds that it is required
to accomplish the purposes of the Act.
The conditions are affirmed
as written.
Standard condition twenty-seven of Attachment H provides
for
permit modification in the event of promulgation of new effluent
guidelines by USEPA and for modification in the event effluent
guidelines will not be promulgated.
The parties have specifically
agreed to modifications providing time for compliance and a right
to appeal in the event the permit is modified pursuant to this
condition.
IPC argues that this condition is related to Rule 910(a) (6)
and the Appellate Court decisions in Peabody Coal and U.S. Steel
which are cited above.
Under U.S. Steel the Agency may have some
authority to set effluent standards in the circumstances contem-
plated.
The Board will therefore allow the condition with no
prejudice to IPC’s rights to appeal any permit modified under it.
This Opinion constitutes the Board’s findings of fact and
conclusions of law in this matter.
—10—
ORDER
NPDES permit IL0001554 is remanded to the Agency for further
action consistent with the settlement agreement and not incon-
sistent with the Board’s Opinion of this date.
IT IS SO ORDERED.
I, Christan L. Moffett,
Clerk of the Illinois Pollution
Control Board, hereby ce~tifythat the
a ove Opinion and Order
were adopte~on the
~
day of
_______________,
1980 by
a vote of
5-e
o~d6
Christan
L. Mofile~ Clerk
Illinois Pollution Control Board
