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