ILLINOIS POLLUTIOr~ICONTROL BOARD
    ~ugust
    4,
    1988
    IN THE MATTER OF:
    SITE—SPECIFIC RULE CHANGE AT
    35
    ILL. ADM. CODE PART 304,
    )
    R87—22
    SUBPART B
    (CIPS NEWTON STATION)
    ADOPTED RULE.
    FINAL ORDER.
    OPINION AND ORDER OF THE BOARD
    (by 3. Marlin):
    This matter
    comes before the Board on a petition
    for site—
    specific relief filed
    by Central
    Illinois Public Service Company
    (CIPS) on July 17,
    1987.
    Specifically, CIPS
    is seeking relief
    from the requirement of Section 304.124(a)
    as
    it pertains to
    effluent limits
    foc total suspended solids
    (TSS).
    The relief
    would apply
    to the discharge from CIPS’
    ash pond system at its
    Newton generating station
    (Newton).
    Instead
    of the
    15 milligrams
    per liter
    (mg/i) standard imposed
    in Section 304.124(a),
    CIPS
    wishes
    to be
    subject
    to the following effluent limits:
    30 mg/i
    as
    a 30—day average and
    100 mg/i as
    a daily maximum.
    A hearing was held
    in this matter on November
    4,
    1987 in
    Newton.
    On January 27,
    1988,
    the Department of Energy and
    Natural Resources
    (DENR) filed
    its determination that an economic
    impact study was not necessary
    in this matter.
    The Board was
    informed
    of the Economic and Technical Advisory Committee’s
    concurrence with this determination on January 29,
    1988.
    On March 24,
    1988,
    the Board proposed
    for First Notice a
    rule,
    which if adopted, would exempt CIPS from the TSS discharge
    limit imposed
    in Section 304.124(a).
    However,
    the Board proposed
    that CIPS’
    ash pond system be subject to the following
    urn-its:
    30 mg/i monthly average and
    50 mg/i daily composite
    for TSS and
    15 mg/i monthly average and
    30 mg/i daily composite for non-
    volatile TSS.
    The Board’s proposed rule was published
    in the
    Illinois Register on April
    22, 1988.
    12
    Iii. Reg.
    7065.
    The Board received only one public comment during First
    Notice; CIPS filed
    its comments on May
    17, 1988.
    (P.C. U).
    The
    Illinois Environmental Protection Agency filed no First Notice
    comments.
    In its comments, CIPS reviews the record and concludes
    that the Board’s proposed
    rule
    is “fully acceptable.”
    (P.C.
    #1,
    p.
    3).
    On June
    16,
    1988,
    the Board proposed the rule for Second
    Notice.
    The Joint Committee on Administrative Rules
    filed
    its
    Certification of No Objection
    to the proposed rule on July
    19,
    1988.
    No substantive changes have been made to the
    rule.
    91—309

    2
    At Newton,
    CIPS generates electricity through the production
    of steam
    in boilers fueled by
    coal.
    Bottom ash from the boilers
    at Newton
    is sluiced out of
    the plant and
    is processed by an ash
    pond system.
    Water taken from Newton Lake is used
    for this
    purpose.
    The sluiced ash
    is first discharged
    to the primary
    settling pond.
    This primary settling pond has a surface area of
    401 acres.
    Currently,
    this pond
    is operated at a depth of
    7
    feet.
    The maximum design depth is
    23
    feet.
    Originally,
    the pond
    system was intended
    to process both
    fly ash and bottom ash.
    However, only bottom ash
    is processed
    in the ash pond system;
    since
    1979,
    the fly ash has been utilized
    to stablize scrubber
    by—products before landfilling.
    This change resulted
    in an 85
    percent reduction in solids entering
    the pond with the result
    that the primary settling pond now has an estimated life of 277
    years.
    (R.
    13).
    The primary settling pond discharges
    to
    a
    9.3 acre secondary
    settling pond.
    This pond
    is operated
    at a depth of
    12 feet,
    although
    it has
    a maximum design depth
    of
    26
    feet.
    (Exh.
    #1,
    p.
    4).
    The primary and secondary ponds have
    a 106 day retention
    time
    (R.
    44).
    The secondary settling pond discharges
    to Newton Lake.
    The
    amount discharged
    is estimated
    to be between 7.78 and 8.98
    million gallons per day.
    (Exh.
    #1,
    p.
    3).
    It is this discharge
    that
    is the subject of CIPS’
    request.
    Aside from two isolated instances, CIPS first consistently
    failed
    to achieve the
    15 mg/i standard
    in January,
    1986.
    These
    problems persisted until September,
    1986.
    In that month, CIPS
    experienced
    its first and only violation of the daily maximum
    standard, which is 30 mg/i as
    figured pursuant
    to Section
    304.104.
    At the time of the hearing,
    CIPS’
    discharge had been in
    compliance since September,
    1986.
    (Exh.
    #1,
    p.
    5—6;
    R.
    47).
    After analyzing its discharge, CIPS has considered that
    algal blooms are a major contributing
    factor
    to CIPS’
    past
    exceedances
    of the TSS standard.
    (R.
    45).
    The green algae, found
    in CIPS’
    discharge,
    constitute part
    of the volatile suspended
    solids fraction
    of the TSS discharge.
    The ash,
    for which the
    ponds are designed to remove,
    is included
    in the fixed solids
    fraction
    of the TSS discharge.
    Between February 1986 and October
    1986,
    the total volatile suspended solids
    (TVSS)
    fraction ranged
    from 17.7
    to 68.2 percent of
    the TSS recorded.
    (Exh.
    #1,
    p.
    7;
    R.
    15).
    In 1987,
    the percent of TVSS
    in the TSS was
    as high as
    80
    percent.
    (R.
    73).
    It
    is CIPS’ position that the ash ponds are doing
    their
    job.
    That
    is,
    the ash is settling out
    in the ponds.
    CIPS does
    not believe that
    the ponds
    are “short—circuiting”
    (R.
    44).
    CIPS
    comes
    to this conclusion by comparing
    the concentration of ash
    in
    the pond water with
    the concentration of ash in the discharge.
    91—310

    3
    (R.
    26).
    Also, CIPS asserts that the water discharged
    to Newton
    Lake has less total fixed solids than the water
    CIPS
    takes from
    the lake to use
    in its sluicing operation.
    Data from April
    1,
    1987 are the only exception, according to CIPS.
    (R.
    61).
    For the period of time during which CIPS had compliance
    problems, February 1986 through October
    1986,
    the fixed solids
    portion of the TSS would have exceeded the 15 mg/i standard only
    twice.
    The TVSS fract~.on,when figured alone, would
    never have
    exceeded the standard.~ (Exh. U, Attachment B).
    It is clear
    then that the exceedances are usually
    a result of
    the combination
    of the TVSS with the fixed solids.
    The largest monthly average
    exceedance by CIPS for TSS was
    recorded in September,
    1986 which
    yielded
    a
    25 mg/i average.
    As previously
    stated, the highest
    daily value,
    39 mg/i, was also recorded in that month.
    (Id.).
    CIPS claims that treatment alternatives
    to the ash pond
    system are cost prohibitive.
    According to CIPS,
    construction of
    a wastewater treatment plant would cost between
    9 and
    17 million
    dollars, depending on the design selected.
    Also,
    CIPS claims
    that the cost of
    a recirculation system,
    which would require the
    landfilling
    of the ash,
    is estimated at $17 million.
    (Exh.
    1,
    Att.
    F
    & G,
    R.
    20—22).
    Both the primary and secondary ponds have
    a
    large population
    of bullheads.
    According
    to CIPS,
    the bullheads could contribute
    to the fixed solids portion of
    the TSS.
    Bullheads,
    as bottom
    feeders,
    churn up sediment thereby adding
    to the TSS.
    (Exh.
    #1,
    p.
    9).
    CIPS
    is uncertain
    as
    to the degree that the bullheads
    contribute
    to the fixed solids count.
    The only way
    to determine
    this level of contribution would be to kill all the fish in the
    ponds,
    by the use of toxicants,
    and examine
    if, or how,
    the fixed
    solids level
    improves.
    However, CIPS believes that this option
    would
    be difficult and would pose substantial risks
    for the fish
    population
    in Newton Lake.
    (Exh.
    #1,
    p.
    15).
    Also,
    CIPS states
    that the Illinois Department of Conservation (IDOC),
    which
    manages Newton Lake’s fishery,
    is against the use
    of toxicants
    in
    the ash ponds.
    (Id. at 17).
    Similarly, the green algae can be eliminated through the use
    of algicides.
    As with the killing
    of fish,
    such
    a control would
    have to be used repeatedly.
    CIPS states
    that
    the aigicides would
    also pose
    a great environmental
    risk to the biota of Newton
    Lake.
    IDOC does not favor
    this method either.
    (Exh.
    #1,
    p.
    20—
    21;
    R.
    74).
    CIPS has taken steps
    to reduce TSS by managing pond
    levels.
    Shoreline erosion due
    to wave action has been decreased
    CIPS evidently did not analyze fixed solids separately from
    TVSS for every month during that time period.
    91—311

    4
    by operating
    the primary pond at
    a depth of
    7 feet rather
    than 23
    feet.
    This has encouraged the growth of macrophytes
    (rooted
    plants) which calm the water
    and help settle solids.
    The
    macrophytes also compete with algae
    for sunlight and nutrients.
    (R.
    54—57).
    Environmental Impact
    CIPS asserts that
    its TSS discharge
    to Newton Lake has no
    detrimental impact upon Newton Lake.
    In
    fact,
    CIPS claims that
    the green algae may have
    a beneficial impact upon the Lake since
    algae are food for fish.
    According to CIPS, there
    is
    a favorable
    mix of algal
    species
    in the effluent.
    Blue—green
    algae,
    a
    potentially harmful
    type,
    are not present (Exh.
    #1,
    p.
    22—23;
    R.
    68—69).
    CIPS cites an IDOC study
    for the proposition that
    the
    discharge has no negative impact on the lake’s fishery.
    Evidently, more fish are caught per unit of
    effort
    in the cove
    where CIPS discharges
    as compared
    to
    a cove across the lake
    (Exh.
    U,
    p.
    24).
    The reasons why fish apparently congregate near
    the
    discharge are not certain.
    (R.
    108).
    CIPS claims that
    a standard of 30/100 would not have a
    negative impact on the environment since
    that
    is the standard
    which was promulgated (and codified at
    40 CFR
    423)
    by the U.S.
    Environmental Protection Agency (USEPA)
    for the discharge of ash
    pond systems.
    (Exh.
    #1,
    p.
    13;
    R.
    103).
    The
    Illinois
    Environmental Protection Agency
    (Agency)
    recommends that CIPS be granted relief only
    to the extent of
    a
    25
    mg/i
    limit for the 30—day average and
    40 mg/i limit
    for the daily
    maximum.
    The Agency asserts that the past performance levels of
    CIPS justifies only this level
    of relief.
    (Agency Brief,
    p.
    10).
    Anti—Backsliding Provision
    Both CIPS and the Agency were requested to~addr.ess, in~their
    briefs, how the requested relief related to Section 402(o)of
    the
    Clean Water
    Act,
    as amended by Pub.
    L.
    No.
    100—4.
    This Section
    is entitled “Anti—Backsliding.”
    In general,
    the Section
    prohibits
    the renewal of
    a permit
    if the effluent limits
    contained
    in that renewed permit are less stringent than the
    original permit.
    CIPS initially claims that the anti—backsliding provision
    is
    inapplicable
    to the situation at hand.
    CIPS asserts that the
    provision only applies
    to effluent standards based on “best
    professional judgment” and water quality based
    limitations.
    According
    to CIPS,
    the Section does not preclude backsliding
    for
    technology—based
    limits which is the issue
    in this proceeding.
    In addition,
    it
    is CIpS’ position that
    the anti—backsliding
    amendment only applies
    to water quality standards or schedule of
    compliance.
    9 1—312

    5
    Finally, CIPS states that even
    if the anti—backsliding
    provision
    is applicable,
    CIPS’
    ash pond system fails under
    two
    expressed exceptions to the provision.
    One exception allows less
    stringent limitations
    if such limitations are necessary due to
    circumstances beyond
    the permittees control and for when there is
    no reasonably available remedy.
    The other exception encompasses
    the situation where
    a permittee has installed and properly
    operated treatment facilities required
    to meet the original
    permit’s limits and yet the permittee
    is unable
    to deliver
    compliance.
    CIPS concludes that its situation fits both these
    exceptions.
    (CIPS’
    Brief,
    p.
    3—7).
    The Agency states that
    the latter exception,
    discussed
    above,
    would likely apply.
    This exception also provides that
    a
    new permit contain limits which reflect
    the level of pollutant
    control
    “actually achieved.”
    (Agency Brief,
    p.
    9).
    In
    its Reply Brief, CIPS takes
    the position that the Board
    should not concern itself with the anti—backsliding
    issue.
    IEPA
    as
    the
    permitting
    authority
    and
    USEPA
    under
    its enforcement
    authority
    of
    the NPDES
    National
    Pollutant
    Discharge
    Elimination
    System
    program,
    not
    the
    Board,
    are
    the
    proper
    authorities
    for
    determining
    if
    a
    revised permit can be issued.
    *
    *
    *
    The
    question
    of
    whether
    the
    anti—
    backsliding provision is applicable should be
    resolved
    as
    a
    permitting,
    not
    a
    rulemaking,
    function.
    (CIPS Reply,
    p.
    11).
    The Board will not adopt
    rules which
    it believes
    are
    contrary to Federal law or regulations the State administers.
    In
    this matter,
    the Board agrees with the participants that granting
    relief will not constitute backsliding.
    Findings
    Although there are technically feasible methods for
    compliance by utilizing treatment alternatives other than the ash
    pond system,
    such treatment appears to be economically
    unreasonable
    in light of the nature and impact of the
    discharge.
    It also appears that no modification of the current
    ash pond system would significantly reduce the fixed solids
    portion of CIPS’ TSS discharge.
    Given the current levels of TSS
    in CIPS’
    discharge,
    the use of toxicants to kill
    fish or
    algicides
    to kill algae
    in the ponds would pose environmental
    risks
    to Newton Lake which are greater than any negative impact
    91—313

    6
    associated with CIPS’
    current TSS discharge.
    At hearing,
    the attending Board Member asked whether CIPS
    would be amenable to regulating
    the fixed solids portion of the
    TSS apart from the TVSS portion.
    In
    its brief,
    CIPS states that
    “application of the current Board
    limits,
    15 mg/i and
    30 mg/i,
    just
    to the fixed portion of the TSS
    in the effluent also has
    support
    in the record and certainly
    is an acceptable alternative
    to CIPS.”
    (CIPS Brief,
    p.
    12).
    In response,
    the Agency states:
    The
    suggested
    bifurcation
    of
    TSS
    into
    volatile
    and
    fixed portions
    is unprecedented
    in
    the
    Board’s
    regulations.
    There
    is
    no
    compelling
    reason
    in
    the present
    case
    to
    do
    so even
    though the volatile portion
    is
    known
    to
    be
    primarily algal
    and does not appear
    to
    have
    an
    adverse
    impact
    upon
    Newton
    Lake.
    Further, because still higher levels of algae
    could
    prove
    detrimental
    to
    the
    lake,
    the
    volatile
    portion
    of
    TSS
    would
    still
    need
    to
    be
    regulated
    in some
    fashion.
    The record
    in
    this matter
    is not sufficient to address
    this
    issue.
    (Agency Brief,
    p.
    5)
    The Board
    is reluctant to grant TSS
    levels of 25/40 as
    suggested by the Agency.
    This could
    lead to a situation where
    fixed solids exceed
    15 mg/i.
    Presently,
    CIPS’
    discharge of fixed
    solids generally meets
    the current limit of
    15 mg/i.
    Relief
    which ignores
    the composition of the TSS discharge could allow
    CIPS to produce an effluent which has greater ash content when
    compared
    to its present discharge.
    The ash pond system
    is
    designed to remove ash;
    the record does not support amending
    regulations in any way which would accept decreased efficiency of
    ash removal.
    There has already been
    a major change
    in the ash
    loading
    to the ponds.
    It
    is impossible
    to predict the nature of
    future discharges.
    The CIPS witness did, however,
    state that
    if
    relief
    is granted,
    CIPS would continue
    to manage the ponds to
    minimize TSS.
    (R.
    29).
    It is evident
    in the record that the type and amount of
    algae presently discharged by CIPS have no apparent deleterious
    effect on Newton Lake.
    Also,
    the Board notes that the ash pond——
    Newton Lake system is essentially
    a closed
    loop.
    The lake
    discharges only intermittently to Weather Creek.
    (R.
    110).
    Although the algal discharge is not presently harmful due
    to
    its
    type and quantity, the Board agrees with the Agency that the
    algal portion should not go unregulated.
    The Board believes that
    the record supports granting some relief from TSS caused by
    algae.
    A level
    of 30/50
    is supported by the data
    in the record
    91—314

    7
    as consistent with current performance
    of the ponds with
    a
    reasonable amount of leeway given
    the unpredictable nature of
    algal
    blooms.
    Given
    the unique circumstances of this situation,
    the Board
    will grant CIPS
    relief such that its TSS discharge shall not
    exceed 30 mg/l monthly average or
    50 mg/i daily
    composite.
    The
    definitions
    of Section 304.104(b) shall apply
    to these limits.
    Also,
    the Board will impose the requirement that the non—volatile
    portion
    of the TSS not exceed
    15 mg/i monthly average and
    30 mg/i
    daily composite.
    In
    granting this
    relief, the Board
    notes that
    the volatile fraction of TSS
    in many discharges can be
    environmentally
    harmful.
    The 30/50 TSS levels specified in this
    rule are intended
    to include both the fixed and volatile
    fractions.
    The Board granted Illinois Power Company’s Wood River
    Station TSS limits
    of 30/50
    in
    1985.
    In the Matter of: Proposal
    of the Illinois Power Company for
    a Site—Specific Effluent Rule
    Change
    (Proposed Amendment to
    Ill. Adm.
    Code, Title
    35,
    Part 304,
    Subpart
    B),
    R.
    83—11,
    63 PCB 118,
    (February
    20,
    1985).
    That
    matter involved
    a relatively new ash pond with
    a retention time
    of
    67 days.
    The Board denied TSS relief
    to the Central Illinois Light
    Company’s
    (CILCO)
    E.D.
    Edward’s Station South of Peoria
    in
    1986.
    In the Matter of:
    Site Specific Rulemaking for Central Illinois
    Light Company, R85—7,
    72 PCB 369 (September
    11,
    1986),
    aff’d
    Central Illinois Light Company
    v.
    Illinois Pollution Control
    Board,
    159 Ill. App.
    3d
    389, 511 N.E.2d 269 (3rd Dist.
    1987).
    In that proceeding,
    an older pond with
    a retention time of
    90 hours exceeded the TSS standard.
    The Board denied the
    petition for
    a number
    of reasons including failure to demonstrate
    that the excess TSS were not environmentally harmful.
    CILCO also
    failed to adequetely address why the pond had previously met the
    standard,
    to
    support its contention that influerit solids were a
    major contribution to the violation,
    to refute the Agency’s
    contention that the pond had filled with sediment to the point
    that
    it did not provide the necessary settling opportunity,
    and
    to demonstrate
    that compliance was technically infeasible or
    economically unreasonable.
    The Board believes its decision today
    is
    in concert with
    prior decisions
    in this area.
    CIPS has a relatively new pond
    with
    a more than adequate retention time.
    Based on experience,
    CIPS manages the pond
    to minimize algae and inorganic
    particles.
    The Company had adequately characterized the irifluent
    and effluent water
    and determined where the problems exist.
    The
    Board
    is convinced that given
    the current situations,
    it
    is
    technically feasible but economically unreasonable
    to implement
    further capital—intensive controls.
    The proposed rule will not
    allow an increase
    in fixed TSS,
    but will give CIPS reasonable
    91—315

    8
    relief from its algae problem.
    ORDER
    The Board hereby adopts as final the following amendments
    to
    be filed with the Secretary of State.
    TITLE
    35:
    ENVIRONMENTAL PROTECTION
    SUBTITLE C:
    WATER POLLUTION
    CHAPTER
    I:
    POLLUTION CONTROL BOARD
    PART 304
    EFFLUENT STANDARDS
    SUBPART B:
    SITE SPECIFIC RULES
    AND EXCEPTIONS NOT OF GENERAL APPLICABILITY
    Section 304.216
    Newton Station Suspended Solids Discharges
    The limitation on the discharge
    of total suspended solids
    (TSS)
    contained
    in Section 304.124(a)
    does not apply
    to the discharge
    from the ash pond system of Central Illinois Public Service
    Company’s Newton Station
    (CIPS),
    located
    in Jasper County.
    Instead, CIPS’
    ash pond
    system discharge shall not exceed
    30 mg/I
    monthly average and
    50 mg/i daily composite for TSS,
    and
    15 mg/i
    monthly average and
    30 mg/I daily composite for non—volatile
    TSS.
    The definitions
    of Section 304.104(b)
    apply
    to these
    effluent limits.
    (Source:
    12 Ill.
    Reg.
    ,
    effective
    IT
    IS SO ORDERED.
    I,
    Dorothy
    M. Gunn,
    Clerk of the
    Illinois Pollution Control
    Board,
    hereby cert~4~iythat the above Opinion and Order was
    adopted on the
    ~/‘-~-
    day
    of
    ________________,
    1988,
    by a vote
    of
    7—o
    222. ~
    Dorothy ~j/.
    Gunn,
    Clerk
    Illinois Pollution Control Board
    9 1—316

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