Boron 1.0 9.2Sulfate 500 800TDS 1000 1400
AGENCY BORON SULFATE
USEPA SecondaryMCL NA 250 500USEPA MCL NA 400/500 NA
of Sciences less than 1 NA NA
IPCB 1.0 500 1,000

ILLINOIS POLLUTION CONTROL

BOARD

October 7,

1993

IN THE MATTER OF:

)

PETITION OF ILLINOIS POWER

)

 AS 92-7

COMPANY

 (VERMILION POWER STATION)

)

 (Adjusted Standard)

FOR

ADJUSTED

STANDARDS

FROM

)

ILL.

ADM.

CODE

302.208(e)

)

SHELDON

ZABEL

and

ERICA

DOLGIN,

SCHIFF,

HARDIN

WAITE

APPEARED

BEHALF

ILLINOIS

POWER

COMPANY;

CHARLES

FEINEN1

APPEARED

BEHALF

THE

 ENVIRONMENTAL

PROTECTION

AGENCY;

JOHN

MCMAHON,

ZIMMERLY,

GADAU,

SELIN

OTTO

and

CHARLES

GOODALL,

APPEARED

FOR

THE

COMMITTEE

THE

MIDDLEFORK;

JACK PAXTON

APPEARED

FOR THE SIERRA CLUB.

OPINION

AND ORDER

OF THE BOARD

 (by B. Forcade):

On July 1,

 1992,

 Illinois Power Company

 (IP) filed a

 petition for an adjusted standard for its Vermilion Power

Station, located on a body of water commonly referred to as the

Middle Fork of the Vermilion River.

 IP seeks relief from the

general use water quality standards for boron, sulfate, and total

dissolved solids

 (TDS)

 in 35 Ill. Adm. Code 302.208(e).

 Illinois

Power requested a hearing in its petition.

 On July 14,

 1992, the

Illinois Chapter of the Sierra Club (Sierra Club)

 filed an

objection.

 On July 20,

 1992,

 the Committee on the Middle Fork of

the Vermilion River (Committee) also filed an objection and

request for hearing.

 The Illinois Environmental Protection

Agency (Agency)

 filed its recommendation on August

7,

 1992.

The

Agency filed an amended recommendation on November 20,

1992

modifying the proposed language of the adjusted standard.

The

Illinois Department of Conservation submitted a letter on

August 20,

 1992 in support of the adjusted standard.

Hearings were held in Danville, Illinois on December 9,

10

and Il,

 1992,

 before hearing officer Everett Laury.

 Members of

the public attended the hearings.

 Illinois Power filed its post—

hearing brief on January 11,

 1993.

 The Agency filed its brief on

February

8,

 1993.

 The Sierra Club and the Committee jointly

filed a brief on February 10, 1993.

 Illinois

 Power filed a reply

brief on February 25,

 1993.

The Board notes that Mr. Feinen is presently an attorney

with the Board.

 Upon hire,

 he withdrew his appearance in this

case and did not participate in the Board’s decision or

deliberation in this matter.

Illinois Power is requesting an adjusted standard from the

general use water quality standards for boron,

 sulfate, and total

dissolved solids

 (TDS),

 as those standards apply to the Middle

Fork of the Vermilion River

 (Middle Fork) below Illinois Power’s

Vermilion Power Station.

 Illinois Power is requesting the

adjusted standard because of actual and calculated violations of

the Board’s water quality standards during periods of low flow in

the river.2

 The following standards are imposed by 35 Ill.

Adm.

Code 302.208(e);

 1.0 mg/l for boron, 500 mg/i for sulfate and

1000 mg/i for TDS.

Pursuant to its original Petition for Adjusted Standard,

Illinois Power sought to change that standard to 10.0

mg/1(boron);

 800 mg/1(sulfate), and 1,500 mg/l(TDS).

 The Agency

has recommended in its amended recommendation that an adjusted

standard be granted which would change the standard to 9.2

mg/1(boron); 800 mg/l(sulfate) and 1400 mg/l(TDS).

 The Agency,

using the reported maximum concentrations provided by IP for

 boron, sulfate and TDS in the effluent provided by IP, determined

that in the worst case the downstream concentrations would be 8.3

mg/l for boron, 789 mg/i for sulfate and 1388 mg/i for TDS.

 (Ag.

Resp.

 at 7.)

 Therefore, the Agency suggests lower limits in the

adjusted standard.

 (Ag. Resp.

 at 5.)

 IP now concurs in the

adjusted standard as recommended by the Agency.

On July 1,

 1993, the Board granted Illinois Power’s motion

for entry of a final order.

 On the same date, the Committee

2

 The amount of water flowing in a stream may vary from day

to day.

 The discharge of an effluent will be diluted to a

greater or lesser degree depending upon how much flow is in the

receiving stream at the time of discharge.

 More importantly, the

downstream water quality concentration of a contaminant from an

effluent will vary depending upon the flow in the receiving

stream.

 For planning purposes USEPA and Illinois have selected

one particular low flow condition called the 7Q10, the average

minimum seven day low flow which occurs once in ten years.

Not

all low flows are 7Q10 flows.

 The Board’s water regulations at

35 Ill. Adm Code 302.103 provide:

Except as otherwise provided in this Chapter,

the

water

quality standards in this Part shall apply at all times

except during periods when flows are less than the

average minimum seven day low flow which occurs once in

ten

years.

The process of utilizing critical conditions for stream

flow,

 loading and water quality parameters in the calculations is

effectively required by federal regulations.

 See 40 C.F.R.

130.7(c)(1)

 (1992).

3

filed a motion to strike Illinois Power’s motion.

 The Committee

contends that Illinois Power’s motion

 is an improper attempt to

argue its case to the Board one more time.

 The Committee notes

that all but paragraph 11 of the motion is unnecessary to the

relief requested.

While the Board agrees with the Committee that Illinois

Power’s motion contains information and argument unnecessary for

a motion for entry of a final order,

 the Board finds that the

content of the motion does not warrant striking the entire

motion.

 In granting Illinois Power’s motion, the Board noted

that it would enter a final order subject to the Board’s time and

resource constraints.

 While Illinois Power’s motion contains

excessive information, this information will not be considered by

the Board.

BACKGROUND

The

utility

station

for

which

seeks

adjusted

standard

is a coal—burning plant located five miles north of Oakwood,

Illinois, adjacent to the Middle Fork of the Vermilion River.

 (Pet. at 4.)

 The station employs approximately 75 people and is

staffed 24 hours a day,

 7 days a week.

 (Pet. at 4.)

 The station

has been in operation since 1955.

 (Pet. at 4.)

 The station

consists of two coal—fired units with nominal net generating

capacities of 70 and 95 MW and a 11 MW combustion turbine—

generator.

 (Pet.

 at 4.)

Outfall 001 and outfall 003 consist primarily of discharge

from the ash pond system.

 (Pet.

 at 4.)

 Outfall 001 is the

outfall for the current ash pond system.

 (Pet.

 at 5.)

 Fly ash

and bottom ash are hydraulically conveyed to a three pond system

consisting of an east pond,

 a north pond and a polishing pond.

(Pet. at

5.)

 The discharge through outfall 001 is from the

polishing pond.

 (Pet. at 5.)

Illinois Power is constructing a new ash pond system

consisting of a surface impoundment occupying 20 acres.

 (Pet.

at

5.)

 The new system will be placed in service when the existing

system becomes full, probably in 1993.

 (Pet. at 5.)

The

discharge from the surface impoundment is discharged from outfall

003.

 (Pet.

 at 5.)

 The chemical characteristics of the discharge

from outfall 003 should be identical to the chemical

characteristics of the present discharge from outfall 001.

 (Pet.

at 5.)

 Historical data regarding the concentration of boron,

 sulfate and TDS suggest frequent exceedence of the effluent

limitations.

 (Pet.

 at 6.)

IP considered six approaches for complying with the

discharge effluent limitations.

 (Pet. at 6.)

 IF considered

(1)

combusting an alternate low sulfur,

 low boron coal,

(2)

combusting natural gas,

 (3) converting the existing wet transport

4

system for fly ash to dry ash handling,

 (4) installing additional

wastewater treatment facilities,

(5)

 segregating and treating fly

ash transport water to remove boron, sulfates,

 and TDS, and

(6)

seeking an adjusted standard.

 (Pet. at 6.)

 IP has chosen to

pursue an adjusted standard to achieve compliance.

 (Pet.

 at 6.)

ADJUSTED STANDARD PROCEDURE

The adjusted standard provision of the Illinois

Environmental Protection Act (Act),

 at Section 28.1

 (415 ILCS

5/28.1

 (1992)), was created by the legislature to provide an

expedited alternative to site—specific rulemaking.

 The result of

either an adjusted standard or a site—specific rule proceeding is

the same

 (i.e., permanent relief from a particular rule).

In

both a general rulemaking proceeding and a site—specific

rulemaking proceeding, the Board,

 pursuant to Section 27 of the

Act,

 is required to take the following factors into

 consideration:

 the existing physical conditions, the character

of the area involved, including the character of surrounding land

uses,

 zoning classifications, the nature of the existing air

quality, or receiving body of water, as the cases may be, and the

technical feasibility and economic reasonableness of measuring or

reducing the particular type of pollution.

 (See specifically,

Section 27(a).)

 However, the processes themselves are quite

different.

When a peXitioner chooses to file for a site-specific

rulemaking,

 a full and open quasi-legislative hearing is held

where petitioner must justify its request to promulgate

a

regulation specific to it which is different from the general

rule.

 There are no “parties” in a rulemaking proceeding,

although the Agency has authority to, and typically does,

participate in rulemaking hearings.

 Any interested person may

participate and ask questions at hearing.

 The proceeding is

subject to the notice and comment procedures of the Illinois

Administrative Procedure Act.

 (IAPA)

 (See Section 4(i)

 of the Act

and 35 Iii.

 Adm. Code Part 102.)

An adjusted standard,

 on the other hand,

 is determined by

the Board pursuant to an adjudicatory proceeding held subsequent

to a general rulemaking.

 In contrast to the site specific rule

procedure,

 the adjusted standard procedure is not subject to the

 requirements of the IAPA.

 The Agency is required by statute and

Board rule to participate in the proceeding and to file a

response to the petition, although it may even choose to become a

co—petitioner.

 Other interested persons may participate in the

proceeding.

 (See Section 4(f)

 and 28.1 of the Act, and 35 Ill.

Adm. Code 106.Subpart

G.

 Also see discussion infra at

p.

 10.)

Although the Act requires that adjusted standards be

consistent with the Section 27(a)

 criteria, the level of

justification required,

 as set forth in Section 28.1(c),

 is that

the petitioner present adequate proof that:

factors relating to that petitioner are

substantially and significantly different from the

factors relied upon by the Board in adopting the

general regulation applicable to that petitioner;

•

 the existence of those factors justifies an

adjusted standard;

•

 the requested standard will not result in

environmental or health effects substantially and

significantly more adverse than the effects

considered by the Board in adopting the rule of

general applicability; and

the adjusted standard is consistent with any

applicable federal

 law.

For all of the reasons stated below, considering

the

justification required by Section 28.1(c), consistent with the

Section 27(a)

 criteria, the Board finds that Illinois Power has

not presented adequate proof to justify its request for adjusted

standard.

SUMMARY

OF TESTIMONY/DOCUMENTARY EVIDENCE

The petitioner presented evidence in support of its adjusted

standard from employees of IP and consultants who performed

various studies for IP.

 Thomas Davis, environmental technical

specialist at Illinois Power, testified on the background of IF

and the justification for the adjusted standard.

 Michael Rosen

is an engineer with Sargent

 & Lundy who performed a study for IP

on compliance alternatives.

 Donna Hall is a project scientist

with Environmental Science

 & Engineering.

 Ms. Hall evaluated the

effects of the adjusted standard on the Middle Fork River.

 James

Smithson of Illinois Power testified on the biological impacts of

the

adjusted

standard.

The Committee and the Sierra Club presented testimony from:

Clark W. Bullard,

 Ph.D., Professor of Mechanical Engineering at

the University of Illinois; Douglas T.

 Shaw,

 Ph.D., Professor of

civil engineering specializing in water resources and

environmental engineering at the University of Illinois; and R.W.

Larimore, Ph.D., retired aquatic biologist at the Illinois

Natural History survey and Professor of Zoology and Professor of

Environmental Engineering at the University of Illinois.

The

 three University of Illinois professors all commented upon what

they believed to be the insufficiency of the evidence presented

Illinois

Power.

The Agency presented testimony from Bob Mosher, Supervisor

of the Standards Unit in the Planning Section, Bureau of Water,

in support of the adjusted standard.

 A short one paragraph

letter from John Tranquilli,

 Director of the Office of Resource

Management of the Illinois Department of Conservation was also

submitted into evidence in support of the adjusted standard as

recommended by the Agency.

Neither the IDOC letter nor the testimony of Mr. Mosher of

the Agency is accompanied by documentation to justify the

requested numeric standards for boron, sulfate and TDS.

 Both

positions appear to presume that the requested adjusted standard

reflects the current and past discharge into the river, not the

numbers actually requested in this proceeding.

 For example, the

IDOC letter simply states:

 “We concur with IEPA that by allowing

Illinois Power the requested variance, there will be no

degradation of the quality of the aquatic community of the Middle

Fork of the Vermilion River.

 This opinion is predicated on the

fact that the levels requested in the

 variance are well-within

the range of levels for these substances which

 have been

 discharged by the company for the past 37 years.”

 (emphasis

added).

The only actual IDOC studies presented as evidence in this

proceeding, however, were conducted in 1985 and 1987 and are

referenced later in this opinion.

 The two-page prefiled

testimony of Mr. Mosher of the IEPA also appears to be based upon

an adjustment which reflects the current discharge levels, as

opposed to the “worst case scenario” numbers actually requested.

As stated by Mr. Mosher;

 “The existing data is sufficient to

conclude that site—specific water quality criteria for boron,

sulfate and TDS may be set at present levels

 The requested

standards represent

 a worst case scenario,

 as evidenced by

actual Agency measurements of Middle Fork water quality at a

sampling station approximately 3.5 miles downstream of the ash

pond

outfall.

 instream measurement over the last five years

has exceeded 2.1 mg/i boron.”

While

the

Board

has

high

degree

 of respect for the

opinions of its sister state agencies,

it

finds

their

testimony

not very helpful to our evaluation of evidence in support of IF’s

request for an adjusted standard which would result in a legal

authorization to discharge at levels much higher than is either

currently allowed or currently being discharged.

 Thus,

 on the

question of the appropriateness of the requested discharge

standards the Board

 is left to evaluate the evidence as presented

by IP and as contradicted by the three professors who testified

on behalf of the Committee for the Middle Fork and the Sierra

Club.

7

ARGUMENTS OF THE PETITIONER

ILLINOIS

POWER

IP contends that no significant adverse environmental impact

is expected under the proposed conditions

because

there

will

no change from the present operations at the station or in the

water quality conditions of the Middle Fork.

 (Pet.

 at 12.)

IP

notes that under the present operating conditions there is no

significant adverse environmental impact.

 (Pet.

 at 12.)

IF

argues that water quality in the area of the station after 37

years of discharges has been rated higher than or equivalent to

water quality in upstream areas.

 (Pet. at 14.)

 IF also argues

that no beneficial biological impact on the Middle Fork is

expected if the general use water quality standards are met.

(Pet.

 at 14.)

IF notes that the boron standard was based on evidence that

higher levels can harm irrigated crops.

 (Pet.

 at 15.)

IP

contends that there are no authorized withdrawals from the Middle

 Fork, therefore, this standard is not justified for the Middle

Fork.

 (Pet.

 at 16.)

 IF argues that the boron standard is also

not supported based upon the incidental exposure to recreational

users and an evaluation of boron’s effects on various aquatic

organisms.

 (Pet. at 16.)

IF argues that the sulfate standard was established at a

level to protect stock watering and fish,

 and to avoid serious

adverse effects on public water supplies.

 (Pet.

 at 16.)

IF

argues that the rationales supporting the sulfate standard are

not justified for the Middle Fork because the Middle Fork is not

a potable water source, nor are any potable uses planned.

 (Pet.

at 16.)

 Further,

 IP notes that there is no authorized withdrawal

for agricultural or stock watering.

 IF also notes that the

standard is not supported based upon incidental exposure to

recreational users or evaluations of the effects of sulfate on

aquatic organisms.

 (Pet. at 16.)

IF notes that the water quality standard for TDS is based on

a level that the Board found would not be harmful to aquatic

life.

 (Pet.

 at 16.)

 The United States Environmental Protection

Agency established the same standard for TDS based upon the “safe

for drinking standard”.

 IF argues that this rationale is not

justified for the Middle Fork because it

 is not a potable water

source.

 (Pet.

 at 17.)

 Also IP contends that the standard is not

supported

 upon the incidental exposure to recreational users.

(Pet. at

 17.)

 Further IP contends that the standard is not

supported by the effects of TDS on aquatic organisms in the

Middle

Fork.

(Pet.

17.)

claims

that

 it has met its burden of proof and that the

studies,

data

and

witness

testimony

demonstrate

that

the

proposed

adjusted standard

 is justified.

 (Rep.

Br.

at

5.)

 IP contends

that the adjusted standard is consistent with all applicable laws

and would not violate any antidegradation provisions or the

Illinois

 Endangered Species Protection Act.

 (Rep.

Br.

 at 14.)

IP

also claims that the proposed language concerning the computation

of permit effluent limitations is authorized and appropriate.

(Rep.

Br.

 at 17.)

ARGUMENTS OF THE COMMITTEE

AND

THE SIERRA CLUB

The Committee along with the Sierra Club (collectively, “the

Committee”)

 submitted a brief in opposition of the adjusted

standard.

 Basically, the Committee argues that IF has failed to

 meet its burden of proof and that IF’s claim that its pollution

has no adverse effect

 is based on incomplete and unreliable data

and studies.

 (Corn.

 Br. at 17.)

 The Committee notes that no tests

were

performed

during

the

first

years

 that the plant was in

operation.

 (Corn.

Br.

 at 19.)

 Further, the

last

study

 of the

Middle Fork’s biotic system was conducted in 1985-1986.

 (Com.

Br.

at 20.)

 The Committee also notes several gaps in the data

presented by IP.

 (Com.

 Br. at 21.)

The Committee claims that IF could comply with the present

standards without any lost jobs or forgone economic development,

at

 a monthly cost of no more than a few cents per residential

ratepayer.

 (Corn.

Br.

 at 2.)

 The Committee suggests an alternate

means of achieving compliance and also questions the costs

presented by IP for some of the compliance alternatives

considered.

 (Corn.

 Br. at 36.)

The Committee claims that adjusted standards can only be

granted in

 a case where a stream is dirtier and less ecologically

diverse than the norms considered in establishing the general use

standards.

 (Corn.

 Br. at 8.)

 The Committee argues that IF has not

shown that the factors are “significantly and substantially”

 different to justify a less stringent standard.

 (Corn.

 Br. at 10.)

The Committee also claims that the rationales supporting the

standards for boron,

 sulfate and TDS are fully applicable to the

Middle Fork.

 (Corn.

 Br. at 12.)

 The Committee claims that more

stringent standards are justified due to the greater diversity

and the presence of species on the brink of disappearing.

 (Corn.

Br. at 14.)

The Committee contends that the adjusted standard would

conflict with federal and state nondegradation rules under the

Clean Water Act and with the “protect and enhance” requirements

of the Wild and Scenic Rivers Act.

 (Com.

Br.

 at 42.)

The

Conunittee

 also claims that

IP’s pollution amounts to

 a “taking”

of endangered species under the Illinois Endangered Species Act.

(Corn.

 Br. at

45.)

The

Committee also argues that any adjusted

standard

should

not

reference

mixing

requirements

 used to

determine

the

terms

IP’s

NPDES

permit.

(Corn.

Br.

47.)

ANALYSIS

The primary component of the requested relief is the change

in water quality standards that affect the Middle Fork of the

Vermilion River.

 The Board must focus on these numerical

alternative water

quality

standards,

and

not

simply

the

impact

Illinois

Power’s

current

effluent,

for

three

reasons.

First,

the

Act at Section 28.1 requires the Board to focus on whether the

requested adjustment is consistent with the factors applied to

general rule making3 or will result in unexpected results.

 Since

IF’s requested adjustment is numerical water quality values of

9.2,

 500, and 1400, these are the values the Board must determine

to be consistent with the factors in order to grant the adjusted

standard.

 Second, Section 28.1 requires the Board to evaluate

consistency with federal law,

 and federal law places significant

emphasis on the numeric water quality values and use designations

of the waterway.

 Third, water quality values represent an

official state determination that long term exposure

 at such

levels will not cause harm or adverse environmental

consequences.”

The existing and requested standards

 (in mg/i)

 are as

follows:

~

 Those factors,

 set forth in Section 27(a) are: the

existing physical conditions,

 the character of the area involved,

including

the

character

surrounding

land

 uses,

 zoning

classifications,

 the nature of

 the.., receiving body of

water...and the technical feasibility and economic reasonableness

of measuring or reducing the particular type of pollution.

(emphasis added)

“

 Promulgation of water quality standards based upon

numbers which reflect a “worst case scenario” in actuality

represent

legal

determination,

governed

largely

federally

required procedures,

 of the appropriateness of water quality

at

that level to protect the designated uses.

 Such promulgation

will,

 in fact,

 allow the discharger subject to its limits to

routinely discharge at levels which achieve,

 but do not exceed,

that standard at all times.

 While we appreciate the Agency’s

position that routine discharge at the requested level is

unlikely,

 in the context of this proceeding,

 the Agency is asking

us to give IP that legal latitude.

Parameter

 Existing Standard

 Requested Standard5

Boron

1.0

9.2

Sulfate

500

800

TDS

1000

1400

As earlier stated, the justification for an adjusted

 standard is explicitly stated in the Act at Section 28.1(c).

In

addition to the factors enumerated by Section 28.1(c), the

petition must also contain the information required by 35

 Ill.

Adm. Code 106.705.

 The petitioner is required to provide

information

 on the petitioner’s activities, compliance

alternatives including costs for each alternative and the

environmental

 impact of the adjusted standard.

 This additional

information is crucial to the Board’s review and is necessary to

support the justification of the adjusted standard.

The petitioner has the burden of proof in an adjusted

standard.

 (35 Ill. Adm. Code 106.808.)

 After reviewing the

record in this matter, the Board finds that IF has not met the

burden of proof for an adjusted standard.

For the ease of the reader, the Board will first review the

relevant facts applicable to general rulemaking related to IF’s

request for an adjusted standard.

 However, as also stated

earlier,

 in analyzing adjusted standards the Board’s first

concern is the required justifications pursuant to Section

28.1(c)

 and other information required by 35 Ill. Adm. Code

106.705.

RELEVANT SECTION 27(A)

 CRITERIA

THE

RECEIVING

BODY

WATER:

THE

MIDDLE

FORK

CORRIDOR

THE

VERMILION RIVER

The Middle Fork is rated as the number one river ecosystem

Illinois.

(Tr.

236.)

The

Middle

Fork

Corridor

17.1

mile

stretch

the

river

which

runs

from

river

mile

46.9

near

Collison, to river mile 29.8 near the confluence of the Salt

Fork.

 (IP Exh.

7

at 39.)

 This portion of the Vermilion River has

been classified as

 a Class A stream.

 (Corn. Exh.

 2 at 3.)

 This

classification is given to streams of excellent quality that are

~

 As reduced by the Agency’s recommendation.

 As earlier

stated,

 IP’s petition had requested a 10 mg/i standard for boron,

800 mg/i standard for sulfate and a 1500 mg/i standard for total

dissolved solids.

 IP does not object to the standards as

proposed by the Agency.

comparable to the best situations without human disturbance.

(Corn.

Exh.

2.)

Only

stream

segments

comprising

total

of less than 500 miles of stream have been classified as Class A

in Illinois.

 (Corn.

 Exh.

 2 at 2.)

report

issued

1989

the

Agency found that the Middle Fork possessed the best overall

water quality,

 instreani habitat and fish populations when

compared to other sub-basins of the Vermilion River.

 (IF Exh.

6

at 3.)

 The Middle Fork corridor supports a wide array of

terrestrial fauna and flora as well as a unique fishery.

 (IF Exh.

39.)

The Middle Fork River was designated as a State Protected

River in 1986.

 (IP Exh.

 11 at 1-8.)

 The Middle Fork was

designated

federal

“scenic”

river

1989.

(Pet.

4.)

This designation permanently preserves the outstanding and unique

values of the Middle Fork corridor.

 (Pet.

 at 21.)

 This

designation

requires

that

the

section

free

impoundments

and

relatively unaltered in its course, and that the shoreline must

remain

largely

 primitive and undeveloped.

 (Pet. at 21.)

The Middle Fork has a unique scenic value.

 The Middle Fork

is a free flowing river free of impoundments.

(IP

Exh.

 11 at 1—

6.)

 There is limited access to the river by roads and few roads

 are visible from the river.

 (IF Exh.

 11 at 1-6.)

 Most of the

view from the river is of trees,

 bluffs and open fields.

 (IP Exh.

11 at 1—7.)

 The shoreline is mostly old agricultural field,

forests, or forested wetlands.

 (IP Exh.

 11 at 1—7.)

 The river

supports

diverse

and

abundant

fish,

plant,

 insect and other

wildlife

populations.

(IF

Exh.

1-7.)

Numerous ecological values are also found in the Middle Fork

Corridor.

(IF

Exh.

1—8.)

There

are

estimated

acres

of prairie habitat.

 (IF Exh.

 11 at 1—8.)

 Many rare plants and

plants uncommon to Illinois can be found in the area.

 (IF Exh.

11

at 1-8.)

 Three natural habitats in the Middle Fork Corridor have

been

designated

State

Nature

Preserves.

 (IF Exh.

 11 at 1-8.)

The Middle Fork River supports a diverse fishery, including

the

river

redhorse

and

the

mimic

shiner,

fish

species

considered

rare

Illinois.

(Corn.

Br.

7.)

Two

endangered

species,

the

bluebreast darter and the bigeye chub have been documented in the

Middle

Fork.

 (IP Exh.

 6 at 5.)

 IF’s consultant testified to the

disappearance

 of the bigeye chub in the Middle Fork.

 (Tr.

 88.)

IF’s

consultant

notes

that

there

correlation

between

the

disappearance

the

bigeye

chub

and

 Illinois Power’s operation.

(Tr. at 88.)

 The consultant notes that the chub has been in very

low numbers for well over 20 years and there is no documentation

relating

the

 disappearance of the chub.

 (Tr.

 at 89.)

No

Illinois stream other than the Middle Fork provides the habitat

required

the

bluebreast

darter.

(App.

Pet,

“IEPA

Vermilion River Basin Report”,

 p.38.)

12

The Illinois Natural History Survey has described the Middle

Fork as possessing the best overall

invertebrate

 diversity of all

Illinois streams, with 23 of the collected species considered

rare in Illinois, including the endangered wavy—rayed iampmussel,

 which was last observed near the IF plant in 1991.

 (Sierra Club

Exh.

1,

p.

 387.)

 The Middle Fork also supports a variety of

species of birds some of which

 are endangered or threatened

including the bald eagle.

 (IF Exh.

 11 at 1-7.)

The Middle Fork River is one of Illinois’ most popular

canoeing rivers.

 (IP Exh.

 11 at 1—9.)

 The river also supports a

good game fish population.

 (IP Exh.

 11 at 1—8.)

 Parks along the

river are used for hiking,

 camping, horseback riding and hunting.

(IF Exh.

 11 at

 1-8.)

 There are 100 archaeological sites in the

corridor.

 (I? Exh.

 11 at 1—8.)

EFFECT OF PROPOSED ADJUSTED STANDARD ON THE RECEIVING BODY OF

WATER

argues

that

there

will

greater

effect

 on the Middle

Fork with its requested adjusted standard than there exists with

IF’s current discharge.

 As we already pointed out, however, the

requested adjustment is for a water quality standard much higher

than the measured levels which generally result from current

effluent

 discharges.

 For this reason and for the reasons further

explained below, the Board finds serious flaws with the arguments

and evidence presented by IF.

As will be addressed in additional detail later,

 Section

28.1(c) (3)

 requires the petitioner to show that the requested

standard will not result in environmental or health effects

substantially and significantly more adverse than the effects

considered

 by the Board in adopting the rule of general

applicability.

 It is therefore important to clearly focus on

whether the record demonstrates that long term exposure to boron

levels of 9.2 mg/l,

 sulfate levels of 800 mg/i, and TDS levels of

1400 mg/I have been shown to produce no adverse effects beyond

those earlier considered by the Board in the rule making which

adopted those standards.

Toxicity Tests

Illinois

Power

introduced

the

results

toxicity

testing

effluent

 for the Vermilion plant.

 (IF Exh.

9.)

 That exhibit

 is a

document showing that the Agency conducted a toxicity test on the

ash pond effluent on April 22,

 1992.

 (IF Exh.

9.)

The one-page document is divided into four sections.

The

The first section is called “Test(s) Conducted” and includes two

columns,

 “Acute” and “Chronic”, each column has three tests

listed and each entry has a location to the left to place an “x”

check

mark.

Under

the

acute

column,

 the tests for “96—hr

13

static fathead minnow”,

 and “48-hour static

 Ceriodaphnia dubia”

are marked with an “x”.

 The second column is called “Chronic”

and none of the three tests have been checked or marked with an

x.

The second section of the document is called “Acute Results”

and contains rows for the test results in each of the three tests

listed in the section above under acute tests.

 The sheet does

not contain check marks indicating any of the tests were

conducted,

 but does include numerical entries of

 5 and

 0 under

the columns “Receiving water mortality” and “100

 conc.

mortality”, respectively.

 Near the end of the section, the

phrase “No significant acute toxicity observed” is checked.

The third section of the document is called “Chronic

Results” and contains rows for the test results in each of the

three

tests

listed

the

 section above under chronic tests.

The

sheet

does

not

contain

check

marks

indicating

any

 of the three

chronic

tests

were

conducted,

nor

does

this

section

contain

any

numerical entries under the columns “Receiving water mortality”

and “100

 conc. mortality”.

 However, near the end of the

section, the phrase “No significant chronic toxicity observed” is

checked.

The final section of the document is entitled “Comments”.

In this area the report states,

 “The effluent did not exhibit

acute toxicity to fathead minnows or

 Ceriodaphnia

 or chronic

toxicity to

 Selanstrum

 algae.

 The effluent was not toxic to

MICROTOX.”

Several factors concern the Board regarding this document.

First,

 there is no indication of what was being tested other than

“effluent

flow”

from

“4/22/92”.

There

indication

the

boron,

 sulfate, or TDS levels for the material being tested.

Second, there was no testimony by the individual who conducted

the test to explain in some detail how the test was conducted and

the

results

the

test.

The

Board

left

divine

the

results

simply from the face of the one page document itself.

 This is

complicated by the fact that the document is

internally

inconsistent

when

indicates

section

one

and

the

first

part

of section three that no chronic tests were performed,

 yet seems

state

its

conclusions

the

results

some

chronic

tests.

None of the tests indicate whether they were conducted in

accordance with standard toxicity testing practices accepted by

the Board at 35 Ill. Adm. Code 301.106 (1992).

 Additionally, the

results checked indicate no “significant” acute or chronic

toxicity was observed, but fail to explain what would be

considered significant.

The Board has defined acute and chronic toxicity for aquatic

toxicity matters at 35

 Ill. Adm. Code 302.100

 (1992):

14

“Acute Toxicity” means the capacity of any substance or

combination of substances to cause mortality or other

adverse

effects

organism

resulting

from

single

or short-term exposure to the substance.

“Chronic Toxicity” means the capacity of any substance

or combination of substances to cause injurious or

debilitating effects in an organism which result from

exposure for a time period representing a substantial

portion of the natural life cycle of that organism,

including but not limited to the growth phase, the

reproductive

phases

such

 critical portions of the

natural life cycle of that organism.

The Board’s regulations establish testing requirements to

determine toxicity criterion.

 (See 35 Ill.

 Adm. Code 302.612

through 302.642.)

 These testing requirements are specifically

applicable to determining toxicity of complex mixtures of

substances

 (including effluent mixtures).

 (See 35 Ill.

 Adin.

302.630,

 for example.)

While

 these are not the only results by

which toxicity can be determined,

 or the only results the Board

can consider in an adjusted standard, they clearly indicate the

type of detail the Board considers in evaluating scientific

information to determine toxicity in an aquatic medium.

 The test

submitted by Illinois Power does not persuade the Board that the

effluent from Illinois Power on 4/22/92

 (whatever its composition

might be) had no chronic toxicity.

 Nor does it persuade the

Board that the

requested

water

quality

values

for

boron,

sulfate

and TDS will demonstrate no chronic toxicity.

Biological Studies

In support of its petition for an adjusted standard IF has

studied the historical data from two studies of the Middle Fork.

IF used results from sampling done in 1985—1986 by the Agency6

and results from a 1978 study performed by an IF consultant

relating to potential expansion of the power station.

 (IF Exh.

7

at 39.)

 The 1985-1986 Agency water quality survey of the

Vermilion River basin included samples from an upstream station,

a downstream station and the Kickapoo State Recreation Area

station.

 (IP Exh.

 7 at 33.)

 This study contained data on

macroinvertebrate and fish.

 (IF Exh.

 7 at 40.)

 The study

performed by IP’s consultant covered the aquatic and terrestrial

6

 The Illinois Department of Conservation and Illinois

Natural History Survey also participated in this study.

The

Agency issued a report on the survey in

1989

which

attached

IF’s petition as Appendix E.

15

ecology adjacent to the power station.

 (IF Exh.

 7 at 39.)

 This

study

contained

data

three

 aquatic communities

 (periphyton,

inacroinvertebrate and fish).

A 1987 study by the Illinois Department of Conservation

 (DOC

study) was also referenced by IF.

 The DOC study found 23

 of 51

collected species considered rare in Illinois.

 (IF Exh.

 6 at 5.)

The survey identified 940 macroinvertebrates representing 51

taxa.

 (IF Exh.

 6 at 5.)

 Similar communities were found above and

below the discharge.

 (IF Exh.

 6 at 5.)

 The 1978 IP study

collected 2,464 macroinvertebrates representing 53 taxa from

three sample sites.

 (IF Exh.

 6 at

5.)

 Downstream communities

were similar to upstream communities.

 (IP Exh.

 6 at 5.)

The studies documented several species of fish which are

considered rare or uncommon in Illinois.

 (IF Exh.

 6 at 5.)

 These

species include the river redhorse, bigeye shiner, mimic shiner

and eastern sand darter.

 (IP Exh.

 6 at 5.)

 Additionally, two

endangered species, the bluebreast darter and bigeye chub were

collected.

 (IP Exh.

 6 at 5.)

 Several game species were also

collected in the area.

 (IF Exh.

 6 at 5.)

 Upstream and downstream

fish communities were found to be very similar.

 (IF Exh.

 6 at 5.)

The

Committee

claims

that

 the studies used by IF are

inadequate.

 The Committee contends that many more samples would

be required to demonstrate no effect.

 (Prefiled testimony of R.W.

Larimore at 15.)

 The data presented by IF indicates an increase

periphyton

growth

downstream

the

power

station.

The

Committee argues that the increase in primary production and the

lower number of fish downstream suggests that the increase in

 primary production is stressing the fish.

 (Frefiled testimony of

R.W. Larimore at 16.)

 The Committee notes that low—flow

conditions and a stressed population can lead to “summer kills.”

(Frefiled testimony of R.W. Larimore at 16.)

 The Committee notes

that the 7Q10 low flow condition has not been reached on the

segment

the

Middle

Fork

for

the

last

years.

(Prefiled

testimony of

 C. Bullard at 1.)

 Therefore,

 the Committee contends

that the data presented does not represent the effect on the

species during low flow conditions.

The

Board

finds

the

biological

studies

presented

Illinois

Power are of no value

 in resolving the question of whether long

term exposure to boron at 9.2 mg/l,

 sulfate levels of 800 mg/l,

and TDS levels of 1400 mg/i produce no adverse effects beyond

those

earlier

considered

the

Board.

First,

the

Board

notes

that at no time during the studies did water quality values

approach these levels.

 The highest recorded value for boron

during the study was the October sample at test site

 3 with a

boron value of 1.23 mg/l,

 all other boron levels were below the

water quality standard of 1.0 mg/l.

 The highest level for

sulfate was the October sample at site

 3 with a sulfate level of

388 mg/i,

 well below the water quality standard of 500 mg/i.

The

16

highest

 level of TDS was the October sample at site

 3 with a TDS

value of 665, well below the water quality standard of 1000 mg/l.

(IF Exh.

7,

p.

 57, Table 7—1.)

 Nearly all of the remaining

parameters

were

far

below

water

quality

standards.

any

conclusion is to be drawn from these studies,

 it is that

contamination levels which are mostly far below the existing

water quality standards produce no significant adverse effects in

the biological species studied in that reach of the waterway.

It is interesting to note that some adverse effects were

noted in the study.

 In comparing the periphyton densities over

time the study concluded:

Analysis

of

 historical

 data

 showed

few

 differences

between

the

 periphyton,

 macro—invertebrate,

and

 fish

communities upstream from the Vermilion power

 station

discharge with those downstream.

 One change, the reduced

periphyton densities at sites

 2 and 3 in October,

 1978,

may have been related to low flows in the river (Table 7-

1).

As

the

 flows

 decrease,

 so does dilution

of

the

Vermilion

 power

 station

ash

 pond

 discharge.

 Three

chemicals,

 boron,

 iron,

and

 manganese,

 which

 were

slightly

 elevated

at

 sites

2

and

3

in

 September

and

November may have contributed to the reduced periphyton

densities

 (Table 7—1).

(IF Exh.

7,

p.

56)

The boron levels

 (at sites

 2 and 3) during that period were

September

 (0.77 and 0.67), October (0.96 and 1.28), and December

(0.80 and 0.87).

 Only one sample was over the 1.0 mg/l water

quality standard.

 A study showing adverse effects detected at

these low levels for such a brief period of time provides no

empirical support for IF’s argument of no adverse environmental

effects.

 Rather,

 it shows the presence of adverse environmental

effects at

 a concentration nine times lower than the level which

IF has requested for an adjusted standard.

THE TECHNICAL FEASIBILITY AND ECONOMIC REASONABLENESS OF

MEASURING OR REDUCING THE PARTICULAR TYPE OF POLLUTION.

Illinois Power considered the technical and economic factors

for six alternatives to the adjusted standard to achieve

compliance with the water quality standards.

 The alternatives

considered by Illinois Power include

 (1) combusting an alternate

low sulfur,

 low boron coal,

 (2) combusting natural gas,

(3)

converting the existing wet transport system for fly ash to dry

ash handling,

 (4) installing additional wastewater treatment

facilities,

and

 (5) segregating and treating fly ash transport

water to remove boron, sulfates,

 and TDS.

 Upon the request of

the Agency,

 Illinois Fower also considered a modification to one

of the treatment options.

17

Several of the options will achieve effluent limitations

necessary to ensure compliance with the existing water quality

standards.

 Compliance

 is clearly technically possible.

For

example,

 segregating the fly ash from the remaining processes and

providing treatment or disposal will allow compliance.

 (IF Exh.

4,

p.

 11.)

 This leaves the economic evaluation.

The economic evaluation was based on a remaining plant life

of 30 years,

 a 65

 capacity factor,

 a present value rate of

10.12,

 and a levelized fixed change rate of 15.9.

 (Pet. Table

4

of Exh.

2.)

 The capital costs for the treatment options include

a 20

 design margin and a 20

 contingency fund.

 (IP Exh.

3,

p.

16.)

 Many of the operating costs are inflated at 5

 per year.

(IF Exh.

3.,

p.

 22.)

 The capital costs include two factors

specific to the utility industry: first, allowance for funds used

during construction

 (AFUDC) which represents cost of money and

second, the capability charge which represents the loss of net

generating capacity when consuming new power.

 Total costs are

based upon the present value of revenue requirements

 (PVRR),

which enables alternatives with different capital and operating

expenses to be compared on an equivalent basis.

 (IP Exh.

3.,

p.

16)

Two

options appeared to offer full water quality compliance

at the lowest cost: dry fly ash disposal and the Agency suggested

alternative of recycling ash sluice water back to the cooling

tower with side stream reverse osmosis.

 The capital costs,

operating costs and

FVRR

for these options are as follows

(IP

Exh.

 3, Table

 3, Table 4):

CAPITAL

 OPERATING

METHOD

 COSTS

 COSTS

 PVRR

Dry Fly Ash Conversion

Offsite Disposal

 $3,250,000

 $900,000

 $17,300,000

Onsite Disposal

 $7,250,000

 $450,000

 $17,000,000

Recirculation with

 Reverse

 Osmosis

 $6,200,000

 $275,000

 $13,000,000

According to a 1980 survey

 (IF Exh.

 10, App.

C,

p.

 1), the

total amount of ash being disposed of in ponds by utilities was

approximately equal to the total amount being disposed of dry or

returned to the coal mine.

 In the Midwest, more ash was being

disposed of dry or hauled back to the mine.

 Dry disposal was the

predominant process among Illinois utilities.

 The survey

predicted that ash disposal for new sites would probably trend

toward dry ash disposal nationwide, due to increased ash

marketability and stringent water pollution control regulations.

(IP Exh.

 10, App.

C,

p.

1.)

18

Illinois Power previously constructed dry fly ash handling

facilities at its Baldwin power station for about $1,000,000,

and

sells or disposes of the fly ash produced there.

 (IF Exh.

10,

p.

15.)

 Illinois Power’s

 1988 ash disposal study showed conversion

to a dry fly ash system having capital costs of approximately

$2,412,000.

 Off site disposal was estimated at

 $5 per ton.

(IP

Exh.

10,

 Exh.

 13, and Appendix D of Pet,

p.

4.)

 The present

estimates are founded on the 1988 study,

 but the cost increases

to $3,250,000 and $20 per ton are not well explained.

The Committee suggests that the University of Illinois

operates

 a coal fired facility one-third the size of Illinois

Power’s facility and disposes of fly ash and scrubber wastes in a

coal mine near Springfield for $2.10 per ton including

transportation.

 (Middlefork Exh.

4.,

p.

 3—4; See also Tr.

 403—

405.)

 The Committee states that, based upon the 1988 ash study,

Illinois Power will be required to construct dry ash handling

anyway during the final years of Vermilion’s service life,

regardless of the decisions made today regarding the ash pond

effluent.

 (Presubmitted testimony of Clark W. Bullard,

 Filed

November 23,

 1992,

p.

 11; Tr. 410—412.)

 Illinois Power cross

examined Dr. Dullard on this point, but did not offer testimony

rebutting his assertion.

The Committee contends that IF can achieve compliance at a

costs of only a few cents per month per rate payer.

The

 alleged

 cost

of

 pollution

 control

 ($17

 million

present value revenue requirement) levelized over the 30—

year remaining life of the plant,

 is $1.82 million per

year.

 IP generates about 20,000,000,000 kilowatt-hours

per

 year.

 This

 means

 rates

 would

 increase

by

 only

$0.0001/kwh

 (one-hundredth

of

a

 cent per

 kwh).

IF

charges

n~te

approximately 10 cents kWh for electricity, so

my bill would increase by only one tenth of one percent

(less than

 5 cents per month).

 And these calculations

assume that IP stockholders pay nothing towards the cost

of

 compliance

 with

the

 general

use

 water

 quality

standards.

(Presubmitted

 testimony

of

 Clark

W.

 Bullard,

 Filed

November 23,

 1992,

p.

9.)

The Committee contends that actual cost of compliance versus

non—compliance is $5 million, not $17 million,

 and therefore

costs would be even lower.

 (Tr.

 425.)

 Illinois Power has

specifically declined to present information on the costs to rate

payers or equity holders for this project stating the size of the

utility or how the costs are paid are not relevant to this

proceeding.

 (Tr.

 598.)

 Illinois Power asserts the only relevant

fact

 is that costs must be compared to the environmental benefit

of compliance,

 which they assert is zero.

 Therefore,

 IP argues

that the cost

 is too high.

19

The Board must consider an additional point raised by the

 Committee.

 Since at least 1986 Illinois Power has known that its

ash pond effluent did not meet the necessary standards for boron,

sulfates and TDS.

 (IF Exh.

 13.)

 In 1988 Illinois Power was

facing a decision on ash disposal.

 The 1988 study clearly

identified the environmental limitations that the selected ash

disposal method must achieve.

 That study correctly identified

the necessary limitations for boron,

 TDS and sulfates as 1.0,

1000,

 and 500 mg/i

 in the effluent.

 Those limitations are the

existing water quality standards from which Illinois Power now

seeks relief.

 For reasons that are totally unexplained, Illinois

Power spent approximately $4,000,000 for the construction of a

new lagoon which will not meet the effluent limitations

identified as design criteria in the 1988 study as necessary

effluent limitations for boron, TDS and sulfates.

JUSTIFICATION PURSUANT TO THE SECTION 28.1(c) FACTORS

In addition to persuading the Board that its requested

adjusted standard

 is “consistent” with the Act’s general rule

making factors

 (the relevant ones outlined above).

IP must justify its petition for a adjusted standard

pursuant to Section 28.1(c).

 Specifically,

 it must provide

“adequate proof” that:

factors relating to that petitioner are

substantially and significantly different from the

factors relied upon by the Board in adopting the

 general regulation applicable to that petitioner;

the existence of those factors justifies and

adjusted

standard;

the

requested

standard

will

not

result

environmental or health effects substantially and

significantly more adverse than the effects

considered by the Board in adopting the rule of

general

applicability;

and

the adjusted standard is consistent with any

applicable federal law.

WHETHER

THE

 PETITIONER HAS JUSTIFIED THAT THE FACTORS RELATING TO

ILLINOIS

POWER

ARE

SUBSTANTIALLY

 AND SIGNIFICANTLY DIFFERENT FROM

THE FACTORS THE BOARD RELIED UPON IN ADOPTING THE GENERAL

REGULATION

APPLICABLE

PETITIONER.

The

Board

adopted

its

general

water

quality

standards

March

1978.

Those

standards

apply

all

Illinois

dischargers,

 including all utilities who discharge effluent into

the rivers and streams of Illinois.

 The only exceptions those

20

dischargers who have sought a site—specific rule pursuant to

Section 27 or justified an adjusted standard pursuant to Section

 28.1.

As set forth in IF’S own documentation,

(IF

Exh.

7,

p.

 C-i,

Table C-i)

 the Board’s water quality standards are actually

higher than those promulgated or recommended by other government

regulatory agencies or scientific institutions:

AGENCY

 BORON

 SULFATE

USEPA Secondary

MCL

NA

250

500

USEPA MCL

NA

 400/500

NA

Ambient Water

Quality Criteria

 0.750

250

250

National Academy

of Sciences

 less than 1

NA

NA

IPCB

1.0

500

 1,000

Illinois Power

Requested Values

.~QQ

 1.400

In adopting the general water quality standards the Board

stated that:

all waters should be protected against nuisances

and against health hazards to those near them; that all

waters

 naturally

 capable

of

 supporting

 aquatic

life,....should

 be protected to support such

 life; and

that waters that are used for public water supply should

be clean enough that ordinary treatment processes will

assure their potability.

 (emphasis added.)

(In

 the Matter

of:

 Effluent Criteria

 (March

7,

 1972),

R70—8,

 3 PCB 755,

 759.)

In adopting the water quality standard for boron the Board

noted that 1.0 mg/l:

is

 based

 on evidence that higher

 levels can harm

irrigated crops.

 While 100

 irrigation

 is unlikely in

Illinois, the uncontrolled discharge of larger quantities

is

 clearly undesirable.

 We have proposed no effluent

standard because of the lack of evidence as to treatment

methods.

 The testimony suggests that compliance with the

stream standard should not be difficult.

(In the Matter of: Effluent Criteria

 (March

7,

 1972),

R70—8,

 3 PCB 755,

 761.)

In adopting the water quality standard for sulfate,

the

Board concluded that a limit was “desirable to protect stock

watering and fish.”

 (In the Matter of: Effluent Criteria

 (March

7,

 1972),

 R70-8,

 3 PCB 755,

 762.)

 The Board found that a level

of 500 mg/i would provide adequate protection for fish and avoid

serious adverse effects on public water supplies.

 (In the Matter

of: Effluent Criteria

 (March

7,

 1972), R70—8,

 3 PCB 755,

 762.)

The Board adopted a level of 1000 mg/l for total dissolved

solids to protect aquatic life.

 (In the Matter of:

 Effluent

Criteria

 (March 7,

 1972),

 R70—8,

 3 PCB 755, 763.)

IF claims that the factors relied on by the Board in

adopting the general water quality standards for boron,

 sulfate

and TDS are not applicable to its discharge to the Middle Fork.

IF notes that the Middle Fork is not presently a source for crop

irrigation or

stock

watering.

 IF further contends that the

Middle Fork is not presently a potable water source or expected

to be a source of potable water in the future.

 IF also argues

that the standards are not supported based upon incidental

exposure to recreational users or effects on aquatic organisms.

To justify its request for an adjusted standard, Illinois

Power must show that the factors relating to its situation are

substantially and significantly different than those considered

by the Board

 in adopting its existing water quality standards.

evidence

argument

was

presented

regarding

how

IF’S

situation was any different than any other Illinois utility or

discharger

who

discharging

 effluent into an Illinois waterway,

except that the waterway IP discharges into is the purest of all

Illinois rivers.

IF presents no evidence concerning the ability or inability

of other electric utilities in the state to comply with the

standards and why the IP plant

 is different.

 It presents no

evidence

 why the technology at its Vermilion plant is

different than that at other plants which presumably comply.

IF’s only suggested significant difference is that the river it

is discharging into

 is pure and has virtually no other

dischargers

users.

argues

that

since

the

river

still

designated “pure” after is has discharged in excess of the levels

necessary

 protect general use standards for over 37 years

(at

actual measured numeric water quality values much lower than

requested in its petition), its petition is justified.

IP also argues that because the general water quality

standards were developed to protect crop irrigation,

 stock

watering and drinking water and the Middle Fork is not presently

used for

any

those

reasons,

should

allowed

discharge

much

greater

level

than

that

considered

the

Board

when

developed

standards

ensure

safe

drinking

and

irrigation

waters.

22

WHETHER

THE

PETITIONER

HAS

PROVEN

THAT

“SUBSTANTIALLY

AND

SIGNIFICANTLY DIFFERENT FACTORS” JUSTIFY AN ADJUSTED

STANDARD

Section 28.1(c) (2)

 requires the petitioner to prove that the

existence of the

substantially

different

factors

justifies

adjusted standard.

 IF contends that because the factors on which

the Board based the water quality standards are not present in

the Middle Fork an adjusted standard is justified.

 The Board

contests that very conclusion.

IF notes that the Middle Fork is not currently used for crop

irrigation or stock watering and no such uses are planned.

IF

also claims that the low flow of the Middle Fork does not make it

suitable for crop irrigation or stock watering.

 However, the

Committee notes that even though the Middle Fork is not used for

stock watering it

 is used by the various wildlife species that

inhabit the shorelines of the Middle Fork.

 The Committee

contends that the same standards are necessary to protect these

species from possible adverse effects.

The factors presented by IF are not substantially or

significantly

different,

nor

they

justify

the

granting

the

adjusted standard.

 One purpose of water quality standards is to

maintain environmentally appropriate water quality.

 This is

particularly

important

for

high

quality

streams

such

the

Middle Fork.

 IF has not sufficiently demonstrated that the

levels of the adjusted standard will not lower the quality of the

Middle Fork from the quality contemplated in the Board’s water

quality regulations.

IF claims that the proposed standard does not represent any

change from the current levels discharged.

 IF argues that the

Middle Fork has achieved its high quality level during a period

when IF has been discharging at the proposed levels of the

adjusted standard.

 However,

 I? has provided insufficient

documentation of the history of the stream quality and the levels

of the discharge for the Board to conclude that the adjusted

standard would maintain the quality of the Middle Fork.

Moreover, the water quality standards requested by Illinois Power

represent

 a substantially higher numeric value than generally

result from its current discharge and a significant degradation

of the quality compared to existing water quality standards.

IF also claims that the standards are not applicable because

the factors used to establish the levels are not present in the

Middle Fork.

 However, the factors considered in establishing the

 water quality standards represented the most sensitive use and

were not intended to limit the standards to those uses.

 IF has

failed to demonstrate that the proposed standard would not affect

the quality of the stream or other uses of the waters of the

Middle Fork

 in the future.

23

Further,

 Illinois Power has made no attempt to demonstrate

that the requested levels would have no impact on crop irrigation

and drinking water consumption.

 Conversely,

 Illinois Power

argues that those are not present uses or contemplated future

uses and therefore Illinois Power is justified in contaminating

the water to such a degree that the uses are unacceptable.

We

disagree.

 IP may not be factually correct7 and,

 in any event,

the argument

 is not sound environmental policy.

Second, the Board cannot condone Illinois Power taking away

these potential future uses from one of the most protected

waterways in the state based on the facts presented here.

The

goal of the water pollution control program in Illinois is to

“restore, maintain and enhance the purity of the waters of this

State...”

 (Section 11 of the Act, 415 ILCS 5/li

 (1992).)

The

goal is to improve the quality of inferior waters; it is not to

degrade the quality of pristine waters.

The Illinois Supreme Court in reviewing a similar request

for an adjusted standard affirmed the Board’s denial and found

that the denial of the adjusted standard was consistent with the

protection of the water as a resource.

The

 Board,

at

the

 outset,

 disagrees

 with

 CIPS’

interpretation of the definition of water pollution in

the Act.

 The Board argues that the Act treats water as

a

 resource,

and

 that

 pollution

 occurs

 whenever

contamination is likely to render water unusable.

 Under

the Board’s interpretation there is no need to show that

actual harm will occur, only that harm would occur if the

contaminated water were to be used.

 Since the Board is

charged with administering the Environmental Protection

Act,

 its interpretation of the statute

 is entitled to

deference.

 (Massa

v.

 Department

RecTistration

Education

 (1987),

 116 Ill.2d 376,

 107 Ill.Dec.

 661,

507

N.E.2d

 814;

 Illinois

 Consolidated

 Telephone

Co.

v.

Illinois Commerce

 Com.

 (1983),

 95 Ill.2d

 142,

 152,

69

Ill.Dec. 78, 447 N.E.2d 295.)

 Under the Board’s view any

contamination which prevents the State’s water resources

from

 being

 usable

 would

 constitute

 pollution,

 thus

allowing

the

 Board

to

 protect

 those

 resources

 from

unnecessary diminishment.

 CIPS’

 interpretation,

 on the

other hand, would not be considered polluted so long as

use of the water ceased subsequent to contamination.

We

find

the

 Board’s

 interpretation

 preferable

to

 CIPS’

The Board notes that drinking water consumption from

the Middle Fork has been actively discussed relating to the

Kickapoo State Park.

 This could include human consumption and

livestock watering for a horse riding livery.

 (Tr. 287).

24

interpretation,

 especially considering the deference we

must accord to the Board.

Central

 Illinois Public Service

Co.

 v. PCB

 (1987),

116

Ill.2d 397,

 409,

 507 N.E.2d 819,

 824.

WHETHER THE PETITIONER HAS PRESENTED ADEOUATE PROOF TO JUSTIFY A

CONCLUSION THAT THE REQUESTED STANDARD WILL NOT RESULT IN

ENVIRONMENTAL OR HEALTH EFFECTS SUBSTANTIALLY AND

SIGNIFICANTLY

MORE ADVERSE THAN THE EFFECTS CONSIDERED BY THE BOARD IN ADOPTING

THE RULE OF GENERAL APPLICkBILITY

The Board has previously discussed,

 in its discussion of the

effect of the requested standard on the “receiving body of

water”, the problems with the “evidence” and studies presented by

 Illinois Power.

To grant the adjusted standard, the Act also requires the

Board to conclude that the adjusted standard will not result in

environmental

 or health effects substantially or significantly

more adverse than the effects considered by the Board in adopting

the rule of general applicability.

 Since IF proffered no

evidence concerning the long term environmental and health

effects from a boron standard of 9.2 mg/L, a sulfate standard of

800 mg/i and TDS standard of 1,400 mg/i, the Board is left to

conclude as stated by the Committee’s witnesses, that the effects

could be substantially and significantly more adverse than

present standards.

 The effects would be more adverse because

periphyton densities appear to be affected downstream of Illinois

Power’s discharge at water quality levels only slightly above the

1.0 mg/l boron standard.

 They would be more adverse because the

requested water quality levels will render the water unfit or not

suitable for drinking water and not suitable for crop irrigation.

IF’s argument, taken to its logical conclusion is that since

general use water quality standards were in large part designed

to protect drinking water and agricultural uses and because

Vermilion River isn’t used for either, those standards can

essentially be ignored.

 This would preclude future uses.

WHETHER ILLINOIS POWER

HAS PRESENTED ADEQUATE PROOF TO JUSTIFY

THAT ITS REQUESTED ADJUSTED STANDARD

IS CONSISTENT WITH

 APPLICABLE FEDERAL

LAW

Section 28.1(c)

(4)

 of the Act requires the petitioner to

show by adequate proof that the adjusted standard is consistent

with any applicable federal law.

 IF contends that the adjusted

standard is consistent with federal law.

 IP argues that the

Clean Water Act grants States the authority to revise water

quality standards and that the Board’s adjusted standard

procedure is

 a means of exercising that authority.

 IF also

maintains that the adjusted standard will not negatively impact

aesthetics or fish and wildlife propagation,

 or degrade water

25

quality of the Middle Fork and

 is therefore consistent with the

Wild and Scenic Rivers Act.

One

the

fundamental

issues

affecting

this

proceeding

that of the federal and state anti-degradation requirements.

Illinois Power argues that degradation will not occur because the

actual measured quality of water will not be degraded.

 Illinois

Power believes that the actual water quality in the Middle Fork

has not changed since 1972 and therefore no degradation will

result from continued discharge of their effluent.

 (IP Reply Br.

pp.

 14-16.)

 The Committee argues that changes in the water

quality standards invoke the anti-degradation provisions,

 regardless of any changes in the actual water quality.

 Further,

they argue that Illinois Power has not demonstrated a lack of

change in actual measured water quality since 1972.

 Finally, the

Committee argues that Illinois Power has not met the federal

anti-degradation legal burden to allow the change in water

quality standards.

The Board believes that the federal water quality and anti-

degradation regulations raised by the Committee apply to the

legally adopted water quality standards set by this Board and

under review in this proceeding.

 The federal Clean Water Act,

33

U.S.C.

1251

1387

 (1992), establishes a procedure for setting

water quality standards.

 (Section 303,

 33 U.S.C.

1313

 (1992).)

To implement those provisions USEPA has promulgated regulations

governing the adoption of state water quality standards,

“Establishment of Water Quality Standards”, at 40 C.F.R.

 131.10

(1992).

 The process involves establishing specified uses for a

body of water,

 and then choosing numeric criteria for each

pollutant that will protect those uses:

Subpart

B

 Establishment of Water Quality Standards

§131.10

 Designation of uses.

(a)

 Each State must specify appropriate water uses to be

achieved and protected.

 The classification of the waters

of the

 State must take into consideration the use and

value of water for public water supplies, protection and

propagation of fish,

 shellfish and wildlife, recreation

in and on the water, agricultural, industrial, and other

purposes including navigation.

 In no case shall a State

adopt

 waste

 transport

or

 waste

 assimilation

as

a

designated use for any waters of the United States

§131.11

 Criteria

(a)

 Inclusion of pollutants:

 (1) States must adopt those

water quality criteria that protect the designated use.

Such criteria must be based on sound scientific rationale

and must contain sufficient parameters or constituents to

26

protect the designated use.

 For waters with multiple use

designations,

the

 criteria

 shall

 support

the

 most

sensitive use

In its water quality setting process the Board selected the

“general use” designation for this highly sensitive area.

(35

Ill. Adm. Code 303.201

 (1992).)

 The purpose of the General Use

Standards is stated at Section 302.202:

The general use standards will protect the State’s water

for aquatic life, wildlife, agricultural use, secondary

contact

 use and

 most

 industrial uses

 and ensure

the

aesthetic quality of the State’s aquatic

 environment.

Primary contact uses are protected for all general use

waters whose physical configuration permits such us~.

In addition, pursuant to 35 Ill. Adm. Code 302.301,

 “..Waters of

the State are generally designated for public and food processing

use.”

 Therefore,

 wildlife, agricultural use, and drinking water

are clearly designated uses of the Middle Fork.

 The Board

assigned “General Use” numeric criteria for boron, TDS and

sulfates that would protect such uses in the waterway.

 35 Ill.

Adm.

Code 303.202

 (1992).

 It is those general use water quality

standards for boron, TDS and sulfate which Illinois Power seeks

to change.

Illinois Power admits that the water quality standards they

are requesting would not protect the use of crop irrigation and

drinking water withdrawal.

 Both of those uses are allowable

under the present Illinois regulatory scheme, and would be

precluded uses under the scheme requested by Illinois Power.

The

USEPA regulations specifically address the process of setting

water quality standards at 40 CFR §131.10(g)

 (1992):

(g)

 States

 may remove

a

 designated

use

 which

is

not

an

existing

 use,

as

 defined

in

 §131.3,

or

 establish

 sub-

categories

of

a

use

if

the

 State

can

 demonstrate

 that

attaining the designated use is not feasible because:

(1)

 Naturally

 occurring

 pollutant

concentrations prevent the attainment of the

use;

or

(2)

 Natural,

 ephemeral,

 intermittent or low flow

conditions or water levels prevent the attainment

of

the

 use,

 unless

 these

 conditions

may

be

compensated

for

by

the

 discharge

of

 sufficient

volume

of

 effluent

 discharges

 without

 violating

State

 water

 conservation

 requirements

to

 enable

uses to be met;

or

27

(3)

 Human

 caused

 conditions

or

 sources

of

pollution prevent

the

 attainment

 of the use

and

cannot

be

 remedied

or

 would

 cause

 more

environmental damage

to

 correct than to

 leave

in

place; or

(4)

 Dams, diversions or other types of hydrologic

 modifications preclude the attainment of the use,

and it is not feasible to restore the water body to

its

 original

 condition

or

to

 operate

 such

modification

in

 a way

 that

 would

 result

 in the

attainment of the use; or

(5)

 Physical

 conditions

 related

to

 the natural

features of the water body,

 such as the lack of a

proper

 substrate,

 cover,

 flow,

 depth,

 pools,

riffles, and the like, unrelated to water quality,

preclude

 attainment

of

 aquatic

 life

 protection

uses;

or

(6)

 Controls more stringent than those required by

sections 301(b) and 306 of the Act would result in

substantial

and

 widespread

 economic

and

 social

impact.

The Board concludes that these federal regulations affect

Illinois’ ability to modify its water quality standards.

Further, the Board concludes that requested changes sought by

Illinois Power would result in a downgrading of water quality

criteria such

 as to not protect the current designated uses of

crop irrigation and drinking water withdrawal.

 Here, the only

reason offered to support downgrading of the water quality

standards

 is the presence of effluent from the Illinois Power ash

 ponds.

 There are clearly technical methods that would allow

Illinois

Power

 achieve effluent quality such that it did not

violate existing water quality standards.

 Illinois Power has not

demonstrated that the provisions of 40 C.F.R.

 131.10-131.12

(1992) have been met.

 Illinois Power has not claimed nor

demonstrated widespread economic and social impact.

 The Board

finds additional support for this position from the federal anti-

degradation regulations at 40 C.F.R.

 131.12(a) (3) (1992)

:

(3)

 Where high quality waters constitute an outstanding

National resource, such as waters of National and State

parks

 and wildlife

 refuges

 and waters

of

 exceptional

recreational

or

 ecological

 significance,

 that

 water

quality shall be maintained and protected.

Here,

 there is no question that the waters under

consideration constitute waters of exceptional recreational or

ecological significance,

 and water quality should be maintained

and protected.

 The Middle Fork is a stream of high quality and

28

is an upstream of Kickapoo State Park.

 It deserves special

consideration because of its status as a state and federal

protected waterway and because of its unique biological habitat.

 The continued discharge of boron, sulfate and TDS at existing

levels threatens to lower the quality of the water from that

contemplated in the existing water quality standards.

 At the

requested levels,

 such waters could be severely threatened.

CONCLUSION

For all of the above reasons, the Board finds that the

requested adjusted standard, as presented in this proceeding,

is

not consistent with the factors set forth in Section 27(a)

 of the

Act and Illinois Power has not presented adequate proof of

justification for th~requested standard as set forth

 in Section

28.1(c)

 of the Act.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

The Board hereby denies Illinois Power’s request for an

adjusted standard for its Vermilion Power Station from the

general use water quality standards for boron,

 sulfate, and total

dissolved solids

 (TDS)

 in 35 Ill.

 Adm. Code 302.208(e).

 This

docket is closed.

IT IS SO ORDERED.

J.

 Anderson,

 J.T. Meyer and M. Nardulli concurred.

Section

 of the Environmental Protection Act

 (415 ILCS

5/41

 (1992)) provides for appeal of final orders of the Board

within 35 days.

 The Rules of the Supreme Court of Illinois

establish filing requirements.

 (See also 35

 Ill.

 Adm. Code

 101.246, Notion 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 ______________day of_________________________

1993,

by

 a vote of

7—c

Dorothy

Illinois

Gunn, Clerk

llution Control Board