ILLINOIS POLLUTION CONTROL BOARD
May 23,
1974
CENTRAL ILLINOIS PUBLIC SERVICE COMPI~NY
PETITIONER
v.
)
PCB 73—384
ENVIRONMENTAL PROTECTION AGENCY
)
RESPONDENT
SUPPLEMENTAL OPINION
~ND
ORDER OF THE BOARD ON THE MOTION OF PETITIONER
TO RECONSIDER AND VACATE AN ORDER,
1~ND,
IN THE ALTERNATIVE, FOR A
REHEARING
(by
Mr.
Marder)
Petitioner
has
filed,
on
April
30,
1974,
a
Motion
to
Reconsider
and
Vacate
an
Order,
and,
in
the
Alternative,
for
a
Rehearing.
Upon
review of
the
record
and
after
taking
notice
of
Board
background
data
and precedent cases,
the Board finds
no reason to grant Reconsidera-
tion.
The Board further finds that the questions raised in Petitioner’s
Motion do not warrant a rehearing.
The following is a
summary
of
facts
leading to the above conclusion.
Petitioner argues that the Board’s Opinion is based on inconsisten-
cies,
and cites our finding that the present aquatic life in Lake Cof-
feen is immaterial as arbitrary, when linked with
our consideration
of
the aquatic life in McDavid Branch.
Petitioner mistakenly believes
that the Board’s decision hinged on the presence of frogs
(R.
37)
in
McDavid Branch,
Such an argument is
at best extremely naive and self—
serving.
Such a twisted interpretation
of the thrust of the Board’s
Opinion mandates a reply.
The
Board,
in
adopting
water
pollution
regulations,
recognized
the
intent of the Legislature that the waters of the State must be made
safe for all legitimate and beneficial uses.
The comprehensive scheme
adopted takes into account differences in
volumes
of
streams,
their
assimilative capacities,
their uses and nature.
In doing so
it
sets
different limitations
on different streams, but it does set
limitations.
McDavid Branch is, without a doubt,
a water of the state and is thereby
protected.
The nature
and
flow of McDavid Branch is therefore the sole
criteria for determining which effluent criteria apply.
The fact that
aquatic life exists
in
the McDavid Branch,
be
it
frogs or otherwise,
merely reinforces the Board’s contention that
it
is indeed a water of
the
state;
however,
it is not the sole criterion.
The fact that
a di—
verse aquatic life exists in Lake Coffeen is indeed immaterial in that
it
in
no
way
affects
our
decision
on
the
Agency’s
rationale
for
denying
a
permit.
Petitioner’s
sole
reason
for
detailing
the
extent
of
life
in
Lake
Coffeen
was
to
present
an affirmative defense that their
efflu-
ent into said lake is not harmful
to the existing aquatic life
(as poss-
ibly distinguished from indigenous aquatic life)
.
This affirmative de—
12—361
—2—
fense
would
be
valid
in
a
variance
proceeding,
but
clearly
is
immaterial
in
a
permit
denial
action.
Permits
are
issued
after
sufficient
inform-~
ation
is
received
and
a
determination
is
made
that
the
subject
facility
is
in
compliance
with
all
applicable
rules
and
regulations..
Permit
is-
suance
and
denials
are
not
based
on
a
determination
of whether a non-
complying stream is
or
is
not
harmful
to
the
environment.
The
logical
extension
of
Petitioner’s
affirmative
defense
is
that
each
discharger
could
negotiate
its
effluent
criteria
based
on
a
showing
that
aquatic
life exists in the receiving stream.
This is clearly unacceptable and
certainly was not
the
intent of these regulations.
The contention
that the deletion ~f Mr. Dunham’s testimony is
inconsistent is
unfound-
ed; indeed, were it to be considered,
it
would merely reinforce the
fact that McDavid Branch and Lake Coffeen are waters of the State
and
are therefore subject to regulations.
The State derives its
powers to regulate waters
of the state
(and
thus
the
rights
to
use such water)
from two sources.
The State Legis-~
lature,
in adopting the Environmental Protection Act of 1970, duly
created the Illinois Pollution Control Board as its agent to
administer
the regulation of the waters
of the state,
The two sources referred
to
above are the police powers of the state and the Illinois Constitution
of 1970.
I.
Police Power of
the State
The police power is the inherent power which the State has, through
the Legislature, to place such a restraint upon private rights as
may
be deemed necessary to preserve the health and comfort
of
the peopic
and the welfare of society, and in exercising the police power,
tho
Legislature may enact such laws as are reasonably necessary to preserve
and promote the welfare
of
the people.
The Legislature need not
on2y
regulate and restrain, but may prohibit whatever is harmful to the
well’~
being
of the
people, even though such regulation, restraint,
or prohib~
ition interferes with the
liberty
or property
of
an individual.
PeopL~
v. Anderson,
355 Ill.
289
(1934:
Relating to State
Act
Requiring
T.t.
Testing
of
Dairy Cattle); Powell v. Pennsylvania 127 U.S.
678,
32
L. eh~
253,
8
S.
Ct, 992; People v, Warren,
11
Ill.
2d
420
(1957)
The
police
power
is
founded
on
the
duty
of
the
State
to
protect
L
t~
citizens
and
provide
for
the
safety
and
good
order
of
society.
Peo~le
v.
Johnson,
288
Iii.
442,
123
N.E.
543,
4
ALR
1535
(1919)
Police power means
the power to promote
the
public
welfare
by re’~
straining
and
regulating
the
use
of
liberty
or
property,
Kiever,
Sham:~
poni Karpet
K1eaner~
C~t~of
Chicao~
?~8
IL
Ap~ 2~i (195
Supreme
Court
has
in
effect
boiled
this
down
to
two
maxims~: 1)
So
your
own
prooert~
~
not
t~
.n~ursotn~o
T-’?. safe~ ~
is the supreme law.
~
214 III.
N.E.
1035,
70
LRN 230,
.2 Ann.
Cas
892
~i9CJ5)
The
police
power
cannot
he
exercised
if
suco
exercise
is
aooi~
I
d
unreasonable.
People
v.
Anderson, 355
Ill.
289
(1934).
The Board
not exercising the police power delegated to it in such a
manner in
this case.
The Environmental Protection Act provides
that pollution of
the waters of this state constitutes a menace to public health and wel-
fare,
creates
public
nuisances,
is
harmful
to wildlife, fish,
and aqua-
tic life,
impairs domestic, agricultural, industrial,
recreational, and
other beneficial uses of water, depresses property values and offends
the senses;
111 1/2 IRS 1011
(a)
(I).
Sec. 13 of the Act provides the
Board with direct authority to
make
regulations to carry out
the
pur-
poses of the Act.
111 1/2
IRS
1013.
Therefore, the Board in regulating
the discharges to a lake such as Lake Coffeen is carrying out the express
mandate of the Act in preserving waters for indigenous aquatic
life.
The
B~rdhas determined the best way to
achieve
the
purposes
of
the
Act
is
to regulate all effluent discharges
to waters of the State.
The Board
has determined through its regulations that a natural water cannot be
used as
a treatment work.
This
is a proper exercise of the police pow-
er to protect the welfare of the people of the State of Illinois.
One
cannot magically change a water of the State to an unregulated private
lake simply by throwing a dam across
a stream.
The fact that Lake Cof-
feen is private and that it thus may be used by Petitioner is
not
in
dispute.
The point is that Petitioner must use the waters in a way
which conforms to the legal restraints imposed.
This concept is pract-
iced every time one drives a car or owns property.
The Board in
deciding
a case such as this must explore the consequences of its decision.
If
Petitioner’s logic is allowed to be extrapolated to the extreme, there
would be no method of preventing a landowner from damming up the 1111—
ois River and creating a “private lake”
free from control.
More
to
e point,
Petitioner’s logic would suggest that unlimited
pollutants
of
any
nature
could
be
pumped
into
their
private
lake
-
and
so
long
as
the
overflow
was
treated
to
conform
with
applicable standards
this
would
be acceptable.
II.
Illinois Constitution of 1970
The Constitution of 1970 provides that the public policy of the
state, and the
“duty of each
person”
is to provide and maintain a health-
ful environment for the benefit of this and future generations.
It also
directly granted
the
power
to the General Assembly to provide for the
implementation and enforcement of this public policy.
S.H.A. Const. Art.
XI, Sec.
1,
“The
use
of the term ‘duty of each person,’
is meant to
emphasize that a person’s right to use his property
as he sees fit is
limited at least to his obligation to maintain a healthful environment”
(Comments to Art.
XI, Sec.
1, S.H.A. Const.).
The Board fully recognized that it would be unduly restrictive to
include treatment works
in the definition of “waters.”
As such the def-
inition of
“waters”
in
Chapter
III
differs
from
that
found
in
the
Envir-
onmental Protection
Act.
The
Chapter
III
definition
specifically
ex-
empts treatment works,
It also specifically denies authorization for
use of natural waters
as
a treatment works.
Having found that McDavid
Branch and thus Lake Coffeen is
a water of the state
(a natural water),
it is by definition precluded from use
as a treatment plant.
One should
—4—
explore th~Board’s
intent when drafting the original regulations
(Chapter III)
to determine if the above logic is consistent.
Perhaps the most direct testimony elicited on this subject was by
Dr. Wesley Pipes
(R71—l4,
pp.. 347—356, Sept.
9,
1971).
Dr. Pipes ar-
gued that the sweeping language of the Environmental Protection Act
would tend to include “waters in
a waste treatment facility.”
Dr.
Pipes drew specific reference to cooling ponds,
oxidation
ponds,
ter-
tiary treatment lagoons, and farm ponds.
Dr.
Pipes suggested that
waste treatment facilities be deleted from the definition of “waters.”
The Board
agreed
and
made
the
change
-
wi?h
the additional proviso ex-
cepting natural waters from use as
a waste treatment facility.
Dr. Pipes further requested that cooling ponds be specifically
called
a
treatment
facility
by
requesting
the
term
“waste
energy”
in
the definition of industrial wastes.
The Board agreed, and this request
was incorporated.
Dr. Pipes wisely went on to discuss the potential impact of his re-
quests.
His own words best explain the concern the Board had in adopt-
ing these regulations, and the concern the Board must have if it were
to
agree
with
Petitioner.
(Following
testimony
by
Dr.
Wesley
Pipes,
Sept.
9,
1971,
pp.
351—53.)
“The net effect of these proposed changes would be
to
create
implicitly
a
new
Water
Use
Designation:
‘Waste
Water Treatment Facilities Waters.’
Without more, the
waters
which
fit this
designation
would
not
be
required
to
meet
any
water
quality
criteria,
except indirectly
as
the
quality
of
water
in
the
treatment
facilities
might
cause
effluent
criteria
to
be
violated.
One
could
contend
with
strong
factual
support
that
the
water
in
any
private
lake,
pond,
or
stream
contains
some
waste
materials
and
was
changing
in~quality
and
therefore
fit
this
designation.
The changes which
I have suggested
in
the
proposed
regulations
could
in
the
long
run
provide
a
mechanism
by
which
all
private
waters
of
the
State
would
be
exempt
from
application
of
any
of
the
criteria
of
the
proposed
regulations
contrary
to
the
Board’s
apparent
intention
and
to
mine
in
making
the
suggestions.
“I
believe
that
waste
treatment
and
disposal
is
an
appropriate use
for some of the waters of the
State. How-
ever,
the
use
of
waters
for waste treatment and disposal
should
be
regulated
and
controlled
so
that
pollution,
that is, interference with other uses,
of other waters
does
not
occur.
The
Board
should
be
very
careful
to
avoid
a
situation
in
which
more
and
more
of
the
waters
of
the
State
might
each
year
find
themselves
in
the
im-
plicit
category
of
Waste
Nater
Treatment
Facilities
Waters
and
accordingly
exempt
from
meeting
the
criteria
established
for
other
water
use
designations.”
Dr.
Pipes
then
testified
that
he
felt
a
change
in
Rule
901
to
requi
12
—
364
—5—
influent and effluent data should be incorporated.
The Board rejected
this proposal, obviously feeling that the proviso of “natural waters”
in Rule 104 was adequate protection.
Dr.
Pipes’ words detailing the
dangers of more and more waters of the state becoming waste water treat-
ment facilities are at the heart of the instant case.
From the above review it is apparent that the Board in promulgating
Chapter III agreed that certain waters which were classically termed
“waters of the State” should be excluded from Rule 104.
Waters in ter-
tiary lagoons, waste treatment plants, or certain cooling lakes were to
be exempt.
The best case of a cooling lake which is exempt would be
Commonwealth Edison’s cooling lake at Dresden.
There the lake is formed
from a slipstream of an existing water, rather than
as
a continuum of
an existing stream.
In Commonwealth Edison’s lake the natural path and
aquatic life in the existing stream were allowed to flow normally.
This
is quite different from the instant case, and is the type of situation
contemplated by the Board in its consideration
of Chapter III.
As mentioned in the Board’s Opinion on this matter
(Pg.
3)
that “Such
other cases
in the future will be decided on the merits of each case,”
this indicates the Board’s awareness of both the complexities and the
importance of such a decision.
While cases detailing very similar facts
would be decided similarly, the myriad of possible distinguishing
fact-
ors prompts the Board to deal with this type of situation on a case-by-
case basis.
The question of waters of the State goes far beyond that of
cooling lakes and has arisen in many previous cases before the Board.
In
most such cases, the principle of “protection of an existing stream” has
been followed without contention.
In cases such
as Danville Sanitary
District v. Environmental Protection Agency, PCB 74-12 and City of Car-
bondale v. Environmental Protection Agency, PCB 73_430,* dischargers have
accepted the requirements of Rule 404
(f) without question.
Although
the
flow
in
the
receiving
stream
was
intermittent,
the
most
stringent
(4 mg/i BOD5 and 5 mg/i Suspended Solids or 10/12 with Piffer exemption)
regulation has applied.
The concept of preservation of the (intermit-
tent)
stream
has
held.
Petitioner’s
logic
would
cause
us
to
believe
that if any of the above streams were to be dammed (and a pool or lake
formed),
the constraints
of Rule 404
(f) would no longer apply.
The Board takes note that Petitioner is in a unique position.
Many
dollars have been spent
in the construction of Lake Coffeen.
Petitioner
cannot at this time conform with the applicable thermal constraints. The
Board also notes
that cooling lakes can indeed be an environmentally
sound and indeed preferable method of handling the problem of condensor
cooling.
However, the Board also notes that the present rules and
reg-
ulations do not allow this operation, without a variance from the Board.
Again
we
emphasize
that
this
is
so
to
prevent
misuse
of
an
existing
stream.
Petitioner
would
seem
to
imply
that such
a rule is arbitrary
and unreasonable.
If such is the case,
the Environmental Protection
Act
has
ample
administrative
remedy
open
to
Petitioner.
Petitioner may
apply
for
a
variance
under
Section
35 of the Art,
Petitioner may S
In
these cases discharcrers have requested variance from the restrict
~c~c
of
Th~je
/~Ø~~
—6—
ther
request
an
amendment
to
Chapter
III
to
allow
the
remedy they desire
If
Petitioner
were
to
file
for
a
regulatory
change
complying
with
the
provisions
of
Sect.
28
of
the Environmental Protection Act,
it would
be
the duty and responsibility of the
Board
to
review
the
issue.
Amend-
ments to Various
Board
rules have been proposed and
adopted
in
the
past,
and changes will continue to be made
as new information becomes avail-
able.
The flexibility of both the variance and regulatory
amendment
procedures was specifically incorporated in the Environmental Protection
Act, to allow for both warranted delay and permanent
change.
These
forms of relief are suited to Petitioner’s plight.
Permit
appeals
are
not the proper forum for change.
Having found by all
the
above
that
Lake
Coffeen
is
indeed
bound
by
existing
Chapter
III
Rules
and
Regula-
tions, the Board
must
reject
Petitioner’s
motion.
It
must
be
remembered
that Petitioner was not denied a permit be-
cause it does
not
comply
with Board effluent criteria.
The Agency den-
ied the permit only because Petitioner failed to supply adequate inform-
ation
for the Agency to determine whether a permit should be issued.
This Opinion constitutes the findings of fact and conclusions
of
law of the Board.
IT IS THE ORDER of the Pollution Control Board
that
Motion of the
Petitioner is denied.
I, Christan L.
Moffett, Clerk of the Illinois Pollution Control
Board,
certify that the above Opinion and Order was adopted by the
Board on the
~
day of
~
,
1974, by avote of
~
to
1~
4~i
i~’
I nJ
‘~