ILLINOIS POLLUTION CONTROL BOARD
February 14, 1975
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY AT:
Grand Tower Power Station
(Mississippi River)
Hutsonville Power Station
)
(Wabash River)
,
and
)
Meredosia Power Station
)
PCB 74-145
(Illinois River)
Petitioner,
)
PCB 74—148
V.
)
PCB 74—149
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
Mr. Thomas L. Cochran, attorney for Petitioner.
Mr. Delbert
D. Haschemeyer, attorney for Respondent.
OPINION
AND
ORDER OF THE BOARD
(by Dr. Odell)
Central Illinois Public Service Company
(CIPS) has appealed
~o the Pollution Control Board
(Board)
after denial by the Environ-
mental Protection Agency
(Agency)
of operating permits at its
Grand Tower
(PCB 74—145), Hutsonville
(PCB 74—148), and Meredosia
(PCB 74-149)
Power Stations.
Petitions For Review were filed on
April
24,
1974,
in PCB 74-145 and PCB 74-149;
on April
25, Petition
For Review was filed in PCB 74-148.
On June
13, 1974,
the Petitioner,
pursuant to Rule
408 of the Procedural Rules,
indefinitely waived the
requirement of final Board action within 90 days
as authorized by
Section
38 of the Environmental Protection Act.
On October
31,
1974,
the Board issued
a More Information Order in which we requested the
parties to supply additional information on the quantities of con-
taminants involved
in the CIPS process.
The additional data were
received by the Board on December 20,
1974, with a cover letter signed
by J.T. Birkett,
an employee of CIPS.
The data submitted were based
on grab samples mutually agreeable to the parties.
The United States
Environmental Protection Agency
(USEPA) attempted to intervene through
a letter and accompanying data received on February 3,
1975.
USEPA re-
quested the Board to consider Suspended Solids data for plants in
Minnesota and Wisconsin.
On February 10, 1975, CIPS opposed the in-
clusion of this data on grounds of procedural due process.
We rule
that data supplied by USEPA is not admissible for this proceeding.
The parties have submitted briefs to the Board.
Because the issue to
be decided in each petition is the same,
the cases have been con-
solidated for decision.
The three fossil fuel generating stations, which are the
subjects of these petitions,
are located near Grand Tower, Hutson—
vile,
and
Meredosia,
Illinois. All three facilities are similar
in operation.
Coal
is burned to make steam to produce electricity.
After the coal
is burned,
an ash residue remains.
The ash collected
at
the
bottom
of
the
furnaces
is
called bottom ash;
the ash captured
15
—
437
—2—
by electrostatic precipitation before it can escape into the atmos-
phere is called fly ash.
The ash is removed from the furnaces and
the electrostatic precipitators by pumping in river water and
mixing it with the fly ash and bottom ash.
This mixture is then
discharged into ash ponds, where most of the suspended solids
settle out.
The slurry enters one side of
a pond and flows to the
other side and then
is discharged back into the river downstream
from the intake point.
No additional water
is added from other
sources so there is not an issue under Rule 401(a)
of the Water
Pollution Regulations (Chapter Three)
regarding dilution.
The Agency denied operating permits to all three stations
in February,
1973.
The Petitioner~sRequest For Reconsideration
was denied in March,
1974.
During August,
1974, hearings were held for each of the
power stations.
A stipulation was made part of the record at each
hearing.
The evidence in the stipulation reveals that the influent
(river water) contains substantially greater amounts of suspended
solids than does the effluent being discharged from the ash ponds
back into the respective rivers.
Specifically, the stipulations
indicate the following average concentrations of suspended solids
from July,
1973 through June,
1974:
Power Station
Influent
Effluent
(River Water)
thg/1
mg/l
Grand Tower
333.6
77.8
(bottom ash pond)
PCB 74-145
40.4
(fly ash pond)
Hutsonville
198.8
40.7
(depository for
PCB 74-148
both bottom and
fly ash)
Meredosia
129.0
12.8
(bottom ash pond)
PCB 74—149
15.5
(fly ash pond)
The evidence submitted on December 20,
1974, from grab
samples taken November 26,
1974, continues the same trend for suspended
solids.
However, several other contaminants were above the standards
set out in Rule 405 and Rule 408(a)
of Chapter Three.
These data are
summarized on the following page.
15—438
Selected Characteristics of I~luent and Effluent from
Three Power Stations and Associated River Waters
Power Station
Case
Number
Rule
Total
Contam- 405 or
River
Water
Up-
Inlet
Effluent
Mixing
inant
408(a)
Flowb
Dis-
stream
Sample
Stand-
charge
Sample
B.A.p.c F.A.P.~B.A,P.C
ard
From
All
Ponds
Grand Tower
PCB 74—145
mg/i
CFS
MGD
mg/l
mg/i
mg11l
mg/i
mg/i
TSS
15
47,240
1.260
52
55
11
8
.
Fecal
400,~-’
2000
2000
92O~
~2
2000
Coliform
~_~lOOmla
—
Mercury
.0005
.0005
.0003
.oooB~
.0003
.0003
~~
5_1~a
7.3
7.7
8.1
ll3f
7.9
Hutsonville
PCB
74—148
TSS
15
1,208
1.800
54
52
l3e
Meredosia
PCB 74-149
TSS
15
3,500
1.533
92
67
14
l7~
Mercury
.0005
.0007
.0007
.OOO7~ .0004
.0006
a.
Expressed in units other than mg/i.
b.
This figure represents the 7-day 10-year low flows for these rivers.
c.
B.A.P.
is the abbreviation for “bottom ash pond”.
d.
F.A.P.
is the abbreviation for
“fly ash pond”.
e.
The effluent empties into a pond, which is a common depository for both
bottom and fly ash,
f.
Underlined values are
in
violation of the applicable standard.
—4—
The Agency argues that the Petitioner must meet the
standard of 15 mg/i of suspended solids in Rule 408(a)
of Chapter
Three.
Petitioner, on the other hand,
asks the Board to rule that
Rule 401(b)
of Chapter Three
is controlling so that the standards
of Rule 408(a)
are inapplicable.
In its petitions for review
Petitioner argues
‘that under Rule 401(b) there
is no obligation
upon CIPS
“to clean up contamination caused essentially by upstream
sources or to require treatment when only traces of contaminants
are added to the background.”’
In deciding whether Rule 408 sets an absolute standard
that must be met,
it
is helpful to look to the Board’s Opinion re-
garding Rule 401(b)
in In the Matter of Effluent Criteria R70-8,
3 PCB 401,
404
(January 6,
1972).
The Opinion states:
“401
(b)
Background Concentrations.
Many questions
were raised as to effluent requirements when water
is
taken from a source that already
is high in contamin-
ants,
the argument often being made that it is unfair
to “penalize”
a user for contaminants placed in the
water by someone upstream or naturally occurring in
ground water supplies.
Our initial effort to deal
with this problem allowed such waters to be dis-
charged provided that they had not been increased in
concentration and provided that no violation of the
water quality standards resulted.
This was widely
objected to as too tight, since most water uses cause
some increase of concentration,
if oniy through eva-
poration, and since any water taken from and returned
to
a stream whose quality exceeds standards will cause
a violation.
We have consequently rephrased the pro-
posal to state the applicable policy without confin-
ing absolutes, much as we have done in the case of
dilution.
We are not prepared simply to allow credit
for background concentrations,
both because to do so
would permit progressive deterioration of stream quality
as one moves downstream, and because the evidence is
that the types of treatment necessary to meet the pro—
posed standards are principally limited by ultimate
concentrations and not likely to be seriously affected
by relatively low background levels.
On the other
hand, we do not wish to require expensive treatment
processes to be installed simply to clean up what has
been put into the water by upstream users or to remove
traces of materials that it is not worth the cost of
removing.
As in the case of dilution,
it seems best
to leave the details
to be worked out on a case-by—
case basis in the light of a general principle stated
in the regulations.”
15
—
440
—5—
That Opinion makes clear that while credit
is not to be
allowed for background concentration which would permit the continued
deterioration of a waterway, users are not to be “penalized” for
concentrations existing prior to their use provided that they do not
add additional amounts of contaminants to the water.
The Opinion
concludes by specifying that deterndriations under Rule 401(b) are to
be made on
a case-by-case basis.
This philosophy
is embodied in
Rule 401(b)
“(b)
Background Concentrations.
Because the
effluent standards in this Part are based upon con-
centrations achievable with conventional treatment
technology that is largely unaffected by ordinary
levels of contaminants in intake water,
they are
absolute standards that must be met without sub-
tracting background concentrations.
However,
it is
not the intent of these regulations to require users
to clean up contamination caused essentially by upstream
sources or to require treatment when only traces of con-
taminants are added to the background.
Compliance with
the numerical effluent standards
is therefore not re-
quired when effluent concentrations in excess of the
standards result entirely from infiuent contamination,
evaporation, and/or the incidental addition of traces
of materials not utilized or produced in the activity
that is the source of the waste.”
This Rule has been the subject of interpretation in
a
previous case before the Board.
See Citizens For A Better Environ-
ment v. Procter and Gamble Manufacturing Company PCB 72-463,
8 PCB
473
(July 12, 1973).
Although the effluent concentration was above
the standards in that case,
the Board ruled that “since no showing
has been made that Procter and Gamble adds or has the capability
of adding suspended solids or lead
in its use of the river for cool-
ing, we find no violation.”
In that case,
it
is clear that the
Board applied the general intent of Rule 401(b),
as well as finding
that the Petitioner’s activity clearly fails within one of the three
situations in the last sentence of the Rule,
i.e.,
“compliance
.
is not required
.
.
.
when effluent concentrations in the excess of
the standards results entirely from infiuent contamination
.
.
.“
In this case,
since Petitioner failed to submit evidence
that it falls within any of the three 401(b)
situations, the issue
is whether the Petitioner can be granted
a permit from the Agency
when its activity is the kind to which the Rule may be applicable,
but not enumerated within it.
The Agency argues
in its brief that
failure to satisfy the strict language of Rule 401(b) means that
the Petitioner must meet the absolute standard of 15 mg/i for total
suspended solids in Rule 408(a).
We rule, however, that in this
15
44~
case failure to satisfy any of enumerated situations in Rule
401(b)
is not sufficient grounds, to deny
a permit.
First, the
enumerated situations should not overshadow the general intent of
the Rule,
In People ex re
unt~5DuPage~Smith
21 Iii 2d
572,
173 N.E.2 485 (1961), the Illinois Supreme Court stated:
“Where a statute contains enumeration of certain
things to which the act applies and also contains a
general term or expression concerning the applica-
tion of the act, the general term may be given full
effect if the content shows the enumeration was not
intended to be exclusive.”
Second, we believe that the Rule, when read against the backdrop
of the Opinion in In the Matter of Effluent Criteria,indicates a
philosophy that cannot be limited to a few hard-and-fast situations.
We are merely interpreting Rule 401(b)
according to the philosophy
behind it.
In Lincoln Nat. Life Ins.
Co. v. McCarth
10 Iii.
2d
489,
140 N.E,2 687
1957
,
the aim of statutory construction was
made clear:
“The primary purpose of statutory construction
is to ascertain the legislature’s intention not only
from language which it has used, but also from the
reason and necessity of the act,
evils sought to be
remedied and objects and purposes sought to be ob-
tained.”
From the facts and circumstances in this case,
the amounts
of suspended solids in the effluents do not constitute grounds for
denial of a permit.
The Petitioner
is satisfying the intent of the
Rule.
Here the effluents are of substantially better quality than
the influents.
Additional treatment would have virtually no effect
on the quality of the river waters.
Finally, the increased cost of
additional clean-up greatly outweighs any possible environmental
benefit that removal would achieve.
Rule 401(b)
,
however,
imposes an additional requirement on
the grant of a permit.
It states in pertinent part that
“
.
.
.
it
is not the intent of these regulations
.
.
.
to require treatment
when only traces of contaminants are added to the background.”
The question is whether the Petitioner is adding other contaminants
in sufficient quantities that they cannot be said to be mere trace
amounts.
Traces of contaminants includes all the Part IV constituents
for which an effluent standard exists,
Whether
a particular con-
stituent exists
in more than trace amounts depends on the magnitude
and frequency of the additions,
the toxicity of the contaminants, and
the character of the receiving stream.
Other factors may also be
relevant.
At all three facilities we are satisfied with the effluent
concentrations for suspended solids, but at Grand Tower we have in—
sufficient facts to rule that the contaminants being added in
violation of the Part IV standards are only trace amounts,
Since
fecal
coliforms are not being added, this parameter does not create a
a problem for purposes of Rule 401(b).
Hutsonville has no other
15
—
442
—7—
constituents above the Part IV standards and clearly satisfies the
intent of Rule 401(b)
for suspended solids.
At Meredosia,
the
mercury concentrations are above the standard but since no trace
amounts are being added, the amounts of mercury in the effluent do
not cause Meredosia to fall outside of the protection of Rule 401(b)
for suspended solids.
It
is appropriate that the issue of Rule 401(b)
come to the
Board for action on
a case—by-case basis.
On the basis of additional
information and review, we find that the Agency correctly denied
Petitioner a permit at Grand Tower
(PCB 74-145), but Petitioner’s
effluent sufficiently satisfies Rule 401(b)
requirements that permits
should not be denied on these criteria at Hutsonville
(PCB 74-148)
and
Meridosia
(PCB 74-149.
If the Petitioner can successfully meet the
other standards for permit issuance, the Agency shall issue permits
at Hutsonville and Meredosia.
Since the issues in this case have been resolved through
interpretation of Rule 401(b), we need not rule on the constitutional
issues raised in the Petitioner’s brief.
This Opinion constitutes
the findings of fact and conclusions
of law of the Board.
ORDER
IT
IS THE ORDER of the Pollution Control Board that:
I.
Although Rule 408(a)
of Chapter Three sets a limit of
15 mg/i for total suspended solids,
Rule
401(b) modifies this
absolute standard, and the amounts of suspended solids
in Petitioner’s
effluent are alone not sufficieht grounds to deny the Petitioner its
permits.
2.
Petitioner satisfies the trace amounts test for con-
taminants other than
suspended solids in Rule
401(b)
at its Hutson—
yule and Meredosia facilities.
The trace amounts in Petitioner’s
effluent at Hutsonville and Meredosia are not sufficient grounds to
deny the Petitioner its permits, and we hereby reverse the Agency
regarding
its ruling for the suspended solids concentration in
Rule 401(b)
of Chapter Three.
3.
Petitioner fails to satisfy the trace amounts test for
contaminants other than suspended solids at Grand Tower because of
insufficient information.
The Agency’s denial of
a permit at Grand
Tower
is therefore upheld.
I, Christan L. Moffett, Clerk of the Illinois Pollution Control
Board, hereby certi y that the above Opinion and Order was adopted
on the
/c/~
day of
_______________,
1975,
by a vote of
.5/
to
~~stan.fet~
15—443