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