ILLINOIS POLLUTION CONTROL BOARD
    July 22, 1976
    ENVIRONMENTAL PROTECTION AGENCY,
    )
    Complainant,
    )
    v.
    )
    PCB 75—387
    CENTRAL ILLINOIS LIGHT COMPANY,
    )
    Respondent.
    Mr.
    Freciric Benson and Mr. Robert Reiland, Assistant Attorneys
    General, appeared for the Complainant;
    Mr. Randall
    W.
    Moon, Attorney, appeared for the Respondent.
    OPINION AND ORDER OF THE
    BC2~RD
    (by Mr.
    Zeitlia):
    The Environmental Protection Agency
    (Agency)
    filed the Complaint
    in this matter on October
    9, 1975, alleging that Respondent Central
    Illinois Light Company
    (CILCO) violated Section 12(b) of the Envi-
    ronmental Protection Act
    (Act)
    and Rule 951 of this Board’s Water
    Pollution Regulations by commencing construction of an electric
    power station without having received a construction permit from
    the Agency.
    The Board denied CILCO’s Motion to Dismiss
    in an Interim
    Order entered on November 26,
    1975,
    and a hearing was held at the
    Fulton County Courthouse on April
    8.,
    1976.
    No public comment has
    been received in the matter.
    The basic facts
    in this case are largely uncontested,
    and were
    the subject of an oral fact stipulation agreed to at the April 8,
    1976
    hearing,
    CR.
    4-li).
    Without repeating the stipulation entirely, the
    essential facts are as follows:
    1.
    On March 13, 1972,
    CILCO began construction of a steam-
    electric generating station in Fulton County,
    Illinois.
    2.
    To provide condenser cooling water for that station, CILCO
    at the same time began construction of a cooling water reservoir
    by damming Duck Creek which has the following characteristics:
    a.
    watershed:
    9,920 acres, with average
    annual precipitation of 34.84 inches.
    b.
    estimated 7-day 10-year low flow:
    zero.
    c.
    100-year flood
    flow:
    5,000 cubic feet per
    second
    (cfs).
    23
    107

    —2—
    3.
    The resulting reservoir will have the following
    characteristics:
    a.
    minimum operating level of operation:
    526 feet
    (volume 13,500 acre feet).
    b.
    estimated final elevation
    (full): 565 feet
    (volume 57,000 acre feet).
    4.
    No construction permit has ever been
    issued
    by the Agency
    for the power station with regard to its discharges into the reservoir.
    (Emphasis added.)
    Additional testimony at hearing indicated the following:
    1.
    At its ultimate level, CILCO’s reservoir will cover 1,740
    acres,
    (R.
    76), of the Duck Creek watershed’s 9,920 acres.
    2.
    Prior to the dam’s construction, average annual flow at
    the dam site was approximately 8.9 cfs
    (R. 77), according to CILCO.
    3.
    Duck Creek has a channel approximately
    6 feet deep and
    20
    feet wide,
    CR. 27), although the entire channel would rarely be
    filled,
    CR.
    110).
    4.
    Upon the planned ultimate development of 2,000 megawatts
    electrical generating capacity, 10,470 acre feet of water will be
    provided to ‘the reservoir each year from natural sources, including
    runoff and rainfall; 17,490 additional acre feet will be provided
    annually by pumpage from the nearby Illinois River,
    (R. 80).
    On these facts, the issue to be decided is whether CILCO’s
    reservoir, constructed by damming Duck Creek, constitutes an
    “artificial cooling lake” or a “perched lake.”
    If it is an artificial
    cooling lake, the reservoir is a protected water of the state,
    subject
    to the applicable effluent and water quality standards set by this
    Board, and discharges into it from the power station would be subject
    to various permit requirements.
    If it is a perched lake, the reservoir
    would be considered a treatment works for the power station’s thermal
    effluent, and would be exempt from those standards.
    CILCO is charged
    with failure to obtain the construction permits necessary for a waste—
    water source which will discharge to a protected water of the state.
    This issue is not new to the Board.
    In R75-2, In the Matter of
    Water Quality and Effluent Standards Amendments, Cooflng Likes
    (Order,
    August
    14, 1975)
    (Opinion, September 29,
    1975), the Board addressed
    the problem with the following language:
    23-108

    The Board has
    ...
    considered the question of thermal
    effluents in a series of cases relating to individual
    dischargers; several of these cases directly concern the
    questions at hand:
    steam—electric generating stations and
    their attendant cooling impoundments.
    In the most rele-
    vant of these cases, the Board determined that such
    impoundments, constructed to provide condenser cooling
    for power plants, fall into two categories:
    (1)
    treatment
    works, and
    (2) protected waters of the state.
    The
    distinction is of sufficient importance to have led to
    our considerations here.
    The distinction, in summary, is based upon the way
    a cooling-water impoundment is constructed.
    Where arti-
    ficial diking is erected, and water to
    fill
    the resulting
    enclosure is largely obtained by withdrawal from a nearby
    natural body of water such as a lake or river, the enclosure
    constitutes a treatment works.
    Commonly known as
    “perched”
    or ‘~side-channel”lakes, these bodies of water are, as
    treatment works, exempt from the Board’s water quality
    standards, and discharges into them are not subject
    to
    the thermal effluent standards.
    The other type of impoundment, an “artificial cooling
    lake,” encompasses the remaining field of cooling water
    enclosures at issue here.
    Generally formed by
    damming an
    existing watercourse which is itself a protected water of
    the state,
    such artificial cooling lakes remain subject to
    the Board’s water quality and effluent standards.
    Footnotes
    ornittedj
    R75-2,
    supra, Opinion at
    3,
    4.
    The Board also defined the term “artificial cooling lake”
    in
    the Regulation itself, passed on August 14,
    1975:
    Rule 104, Definitions;
    “Artificial Cooling Lake” means any manmade lake,
    reservoir
    or other impoundment, constructed by damming the flow of
    a stream, which is used to cool the water discharged from
    the condensers of a steam-electric generating plant
    for
    recirculation in substantial part to the condensers.”
    CILCO’s argument, that its reservoir falls into the category
    of “perched lake,” ±eliesprincipally on
    a footnote in the cooling
    Lakes Opinion, stating that “niatural
    land contours may form part
    of the impoundment,
    such that some runoff
    .
    .
    .
    enters these lakes.”
    CILCO notes that the dam erected to impound Duck Creek
    is
    itself
    “diking,” and that the
    “water to fill the resulting enclosure is
    largely obtained by withdrawal from a nearby natural body of water
    such as a lake or river.
    .
    .
    •“
    R75-2, supra, note
    4.
    As noted,
    23
    109

    —4—
    in normal years with the station operating, approximately 62
    of
    the reservoir’s volume will come from the Illinois
    River.
    CILCO also attempted to show that Duck Creek was not actually
    a stream, being instead merely a conduit for runoff,
    (R. 108),
    and
    that a large portion of the Duck Creek watershed would be inundated
    by the new reservoir,
    leaving little of the original “conduit.”
    None of these arguments are convincing.
    The situation here
    is
    closely analogous to our prior decisions on the cooling lakes issue,
    and none of the facts alleged or shown by CILCO are sufficient to
    alter the outcome of an analysis similar to that used
    in the prior
    cases.
    Despite CILCO’s attempts to characterize it otherwise, Duck
    Creek was a protected water of the state,
    and it remains one.
    In a case concerning Clear Creek and Commonwealth Edison’s
    Kincaid generating station, the Board found that despite the inter-
    mittent nature of Clear Creek
    (63 days per annum expected zero flow),
    it could not
    “allow a person to change the character of a protected
    water by simply damming
    it up and thusly claiming it is no longer
    protected.”
    Citizens for a Better Environment
    v. Commonwealth Edison,
    PCB 73—245,
    73—248
    (Consolidated),
    13 PCB 69,
    78
    (1974).
    A similar
    decision was reached with regard to the Central Illinois Public
    Service Company’s Lake Coffeen.
    Central Illinois Public Service Co.
    v.
    EPA, PCB 73-384,
    11 PCB 677
    (1974),
    rehearing denied with Opinion,
    12 PCB 361
    (1974), aff’d.,
    _____
    Ill. App.
    3d
    _____,
    344 N.E.2d 229
    (Fifth Dist.,
    Feb.
    2,
    1976)
    rehearing denied with Supplemental Opinion
    (March 25,
    1976).
    Although CILCO showed that strip mining had somewhat altered
    its watershed, and that portions of the stream had been channelized
    downstream of the new dam, Duck Creek was a natural, protected water
    of the state.
    Inundation of much of the Creek’s former bed and
    watershed cannot alter this finding, and CILCO’s attempts to raise
    such a distinction are inappropriate here.
    Likewise, we are not impressed with CILCO’s contentions
    concerning the source of water for the new reservoir.
    The fact
    that 62
    of the water will normally be pumped into the reservoir
    from the Illinois River is largely a result of operations at the
    new power station, which will apparently increase evaporation
    considerably above a natural rate,
    CR.
    80,
    87,
    92).
    In the absence
    of pumpage from the Illinois River, and in the absence of power
    station operations,
    the lake created by damming Duck Creek would
    merely fill more slowly,
    and would remain a protected water of the
    state.
    The addition of water from an outside source, needed as a
    result of station operations,
    cannot in this case change that result.
    23—110

    —5—
    CILCO’s reservoir is an artificial cooling lake, and a protected
    water of the state.
    Its new power station constitutes a wastewater
    source within the meaning of our Regulations.
    The power station is
    therefore subject
    to the construction permit requirement.
    CILCO has stipulated that it would have been technologically
    feasible and economically reasonable to apply for the requisite
    construction permits,
    (R.
    8).
    Other stipulated facts show that by
    providing electric power and employment, CILCO’s new power station
    will have considerable social and economic value,
    (R.
    7,8).
    The
    surrounding area being largely strip mined land,
    (R.
    7), the suit-
    ability of the power station to the area
    is not a significant issue,
    except to the extent that the station may be a beneficial use of
    otherwise blighted, unusable land properly zoned for CILCO’s use.
    The character and degree of the injury here are more difficult
    to weigh on the record before us.
    The Board has consistently held
    that the permit system is necessary to the protection of the environ-
    ment as an integral part of the Act’s general protective scheme.
    Failure to comply with the permit requirements of the Act,
    as detailed
    in our Regulations, poses the threat of considerable potential damage
    to the environment, both in the individual instance of such failure
    and by weakening the permit system generally.
    That threat exists
    even where, as here, there has been no specific showing of particular
    environmental damage.
    As
    a consequence, the Board has generally
    found that violation of the permit requirement demands the imposition
    of a penalty under the Act.
    This is especially true with so large
    a potential source of pollution as Respondent’s power station.
    There are,
    however, some matters mitigating this violation.
    Although it is not mitigation,
    as CILCO claims,
    that construction
    here began before the effective date of our Water Pollution Regulations,
    (see
    §
    12(b)
    of the Act and Rule 951(b)
    of Chapter
    3
    formerly
    Rule
    901(b)),
    the dates involved here do provide some relief for CILCO.
    CILCO’s statements
    CR.
    50,
    70), show without refutation that
    the entire Duck Creek project, both power station and artificial
    cooling lake, was undertaken at least in part to allow conformity
    with Board Regulations, and perhaps with federal regulations.
    CILCO
    apparently chose to construct what it termed a “closed cycle” cooling
    system at Duck Creek to avoid possible regulatory problems with the
    traditional “once through” cooling systems used at other power stations
    located near major natural rivers or lakes.
    Until the Board decided PCB 73-245 and 73-248
    (consolidated),
    and PCB 73-384,
    supra,
    it had not specifically examined the question
    of artificial cooling lakes.
    As CILCO noted,
    specific Regulations
    were not enacted on the subject until mid-1975,
    in R75-2, supra.
    We
    feel that prior to the decision of the Edison and CIPS adjudicatory
    cases, where we specifically pointed to the possibility of such
    Regulatory relief as was later provided in R75-2, CILCO might have
    been somewhat confused as
    to the permit requirement.
    —111

    —6—
    However, the failure of the Board to speak specifically on
    individual instances within the Board’s regulatory framework of the
    permit system cannot excuse such violation completely; the Act and
    the Regulations under it were in effect, and CILCO was responsible
    for compliance therewith.
    And
    since the Edison and CIPS decisions,
    where the Board did speak specifically to the issue, no confusion
    can excuse CILCO’s noncompliance.
    On these facts and conclusions, we feel that a penalty of $5,000
    is necessary to protect the integrity of the permit system and
    to
    aid
    in the enforcement of the Act and our Regulations.
    In addition, our Order shall require that CIICO cease and desist
    its violations,
    and acquire all necessary permits from the Agency
    for the new power station and artificial cooling lake.
    This does not entail an immediate “shutdown” order. When stipulating
    to the economic and technical reasonableness of complying with the
    permit requirement, counsel for CILCO noted that this did not neces-
    sarily include compliance with any conditions accompanying any permit,
    (R.
    10).
    Although the record is not clear on the precise temperatures
    of CILCO’s discharges into the artificial cooling lake, CILCO has
    evidenced fears of being required to comply with the Board’s existing
    effluent standards.
    In light of the new power station’s beneficial
    economic value, and the fact that environmental harm may not be
    presently or potentially great
    (the station was schedüTid
    to commence
    operations in June,
    1976
    R.
    7),
    we shall grant CILCO one year
    within which to comply.
    Such
    a compliance period seems warranted by the facts here, and
    is similar to the “combination” remedy and relief ordered in the
    Edison case,
    supra.
    The Board there allowed the grant of a Regulation
    change for Edison’s artificial cooling lake as compliance with the
    cease and desist order.
    13 PCB at 80,
    81.
    Since the Edison case the Board has,
    in
    R75-2, made specific
    provision for a Regulatory change.
    That CILCO was and
    is aware of
    R75—2 is patent in its Brief.
    Grant of a specific thermal standard
    under R75-2 would allow CILCO to obtain any and all necessary permits
    for its thermal discharges into the artificial cooling lake created
    by damming Duck Creek.
    One year should provide sufficient time for
    CILCO to obtain such a specific standard,
    if one is shown to be
    warranted.
    There of course remains the possibility of Variance
    relief.
    This Opinion constitutes the findings of fact and conclusions
    of law of the Board in this matter.
    23— 112

    —7—
    ORDER
    IT IS THE ORDER OF THE POLLUTION CONTROL
    BOARD
    that:
    1.
    Respondent CENTRAL ILLINOIS LIGHT COMPANY
    is found
    to
    have violated Section 12(b)
    of the Environmental Protection Act and
    Rule 951(a)
    of Chapter
    3: Water Pollution, of the Pollution Control
    Board’s Rules and Regulations by constructing a steam-electric power
    station without the requisite construction permit from the Environmental
    Protection Agency.
    2.
    Respondent shall pay as a penalty for such violations the
    sum of Five Thousand Dollars
    ($5,000.00),
    payment to be made within
    thirty
    (30) days of the date of this Order by certified check or
    money order
    to the following address:
    Environmental Protection Agency
    Fiscal Services Division
    2200 Churchill Road
    Springfield, Illinois
    62706
    3.
    Respondent shall, within one year of the date of this Order,
    cease and desist such violations, and shall obtain all necessary permits
    for said steam—electric generating station from the Environmental
    Protection Agency.
    Mr.
    James Young abstained.
    I,
    Christan
    L. Moffett, Clerk of the Illinois Pollution
    Control Board, here~,ycertify t e above Opinion and Order we e
    adopted on the ~
    day of
    ,
    1976, by a vote of
    ..~
    Christan
    .
    Mo fett,
    Illinois Pollution Co
    1 Board
    23— 113

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