ILLINOIS POLLUTION CONTROL BOARD

April 8, 1976

ENVIRONMENTAL PROTECTION AGENCY,

Complainant,

v.

)

PCB 75—242

CITY OF SPRINGFIELD,

Respondent.

Mr. Anthony Cameron appeared on behalf of Complainant.

Mr. Mark Virshho of Isham, Lincoln & Beale appeared on behalf

of Respondent.

OPINION AND ORDER OF THE BOARD (by Mr. Goodman):

This matter comes before the Pollution Control Board (Board)

upon

the Complaint filed on June

11,

1975, by the Environmental Pro-

tection Agency (Agency) against

th’ C y

of Springfield

(City)

.

The

Complaint:

charges

the

Ci ty with cneC~rucLion

of a wastewater source

without a permit, in violation

of Section 12(b) of the Environmental

Protection Act (Act) and Rule

951 oil the

Water Regulations

(Chapter

3)

.

A hearing was held

in this maLter

on December 18, 1975, in

Springfield, Illinois, At

that hearing, a Stipulation and Proposal

for Settlement (Stipulation), representing the final agreement of the

parties, was entered into evidence. No other evidence was presented,

and no citizen witnesses were present.

The parties agree that, prior to the filing of the

Agencyvs

complaint, the City began construction on an electric generating unit

known as Daliman Unit 3. When operational, Dailman Unit 3 will dis-

charge condenser cooling water through a cooling water tunnel into

Lake Springfield. The construction which the Agency complained of

was the excavation of an approximately twenty-foot long portion of

a five-foot wide trench. This trench is intended to serve to dis-

charge condenser cooling water to Lake Springfield from Daliman Unit

3. The Agency agrees that the trench is sealed by earth at both ends,

has never discharged water to Lake Springfield, and could not be

operated to discharge prior to the summer of 1977, at the earliest.

The City admits that it did not obtain a permit with respect to said

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construction as required by Rule 951 of Chapter 3.

Rule 951 provides, in pertinent part:

“Except for.

.

.wastewater sources which will have

discharges for which NPDES permits are required, and

for which permits have been issued by the Agency:

(a) No person shall cause or allow the construc-

tion of any new.. .wastewater source without a Construc-

tion Permit issued by the Agency.”

Rule 104 defines wastewater source as:

• .any equipment, facility.. .which discharges wastewater,

directly or indirectly.., to the waters of the state.”

(Emphasis added.)

In the Stipulation, the City indicates that its failure to

obtain a construction permit was due to a misunderstanding of the

permit requirement. That misunderstanding concerned the status of

the NPDES program and a belief that Lake Springfield was a “treatment

works” rather than a “water of the state.”

The City on June 30, 1975, obtained an NPDES permit from the

U.S. Environmental Protection Agency for its electric generating

facility. The permit does not provide for the cooling water discharge

proposed to be made from Daliman Unit 3. The City’s original NPDES

permit application was based on the belief that Lake Springfield was

not a “water of the state.”

The City now accepts that Lake Springfield is a “water of the

state.” Lake Springfield is a reservoir artificially constructed to

cool condenser discharges from steam-electric plants prior to dis-

charge to other waters of the state. The Board has in the past found

such a cooling lake to be a “water of the state”. Central Illinois

Public Service Company v. EPA, 11 PCB 677. Lake Springfield is,

therefore, a “water of the state” rather than a “treatment works”,

and a permit was required under Rule 951 for equipment discharging

wastewater to the lake.

In the Terms of Settlement, the parties agree to the following

conditions:

(a) On or before December 31, 1975, Respondent shall

file with the Permit Section of the Division of Water Pollu-

tion Control of the Agency an application for a construction

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permit under Rule 951 of Chapter

3,

upon Agency Form WPC-PS-1

with

Schedules J and N attached, and shall thereafter upon

the Agency’s request provide the Agency with any additional

information which the Agency may properly request in the ordi-

nary course of its processing a permit application for the kind

of facility involved.

(b) Immediately upon execution of this Stipulation,

Respondent shall cease and desist from any further construc-

tion of its Dailman Unit 3 cooling water intake and discharge

structures until it has received the requisite construction

permit or authorization to construct.

(c) Respondent shall within a reasonable time take all

steps necessary to withdraw its contention, in its request to

U.S. Environmental Protection Agency for an adjudicatory hear-

ing with respect to the NPDES permit issued for its electric

generating facility, that, under currently existing laws and

regulations, Lake Springfield is not a water of the State; shall

comply, pursuant to the finally-adjudicated terms and conditions

of said NPDES permit, with all applicable effluent and water

quality standards, including but not limited to thermal dis-

charge standards, for all discharges from its electric genera-

ting facility into Lake Springfield, including but limited to

any from its

Daliman Unit

3; and, shall request a modification

of said NPDES permit to provide for the cooling water discharge

proposed to be made from its Dallman Unit 3 no later than 180

days prior to the time the discharge is to occur, in accordance

with the provisions of the FWPCA, or at such other time as

may be required by any amendment hereafter in existing regu-

lations.

(d) Respondent shall, no later than 35 days from the

date of entry of this Order, pay the amount of $550.00 to the

Agency.

The Board finds that the City of Springfield has, by its con-

struction work on Daliman Unit 3 without a permit, violated Rule 951

of Chapter 3 as well as Section 12(b) of the Act. However, certain

facts mitigate assessment of a high penalty. The Board recognizes

that Springfield failed to obtain a permit due to a good faith mis-

understanding of the permit requirement. Also, there has been no

actual injury to the public as yet other than the injury inherent in

a violation of the permit requirement. Therefore, the Board accepts

the stipulated penalty of $550.00 for the violations found herein.

The Board furthermore accepts the Stipulation submitted by the parties

as an adequate plan of compliance with Illinois Water Quality Standards

and regulations.

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This Opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

It is the Order of the Pollution Control Board that:

1. The City of Springfield is found to have violated

Rule 951 of Chapter 3 and Section 12(b) of the Act.

2. For said violations, the City shall pay within 35

days a penalty of $550.00. Payment shall be made by

certified check or money order to:

State of Illinois

Fiscal Services Division

Environmental Protection Agency

2200 Churchill Road

Springfield, Illinois 62706

3. The City shall comply with all the Terms of Settlement

in the Stipulation submitted by the parties on December

18, 1975.

Mr. Young abstained.

I, Christan L. Moffett, Clerk of the Illinois Pollution Control

Board, hereby certify the above Order was adopted on the__________

day of

,

1976 by a vote of

4~~

Christan

c~LL~A)

L. Moffett,j

~h~L

k

Illinois Pollution Co ol Board