ILLINOIS POLLUTION CONTROL BOARD

March 28, 1974

CENTRAL ILLINOIS PUBLIC SERVICE 

COMPANY

PETITIONER

)

PCB 73—384

ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

THOMAS COCHRAN, ATTORNEY, OF SORLING, CATRON & HARDIN in behalf of

CENTRAL 

ILLINOIS PUBLIC SERVICE COMPANY

DELBERT HASCHEMEYER, 

ASSISTANT ATTORNEY GENERAL,

in behalf of the

ENVIRONMENTAL PROTECTION AGENCY

OPINION AND ORDER OF THE BOARD (by Mr. Marder)

This case comes to the Board on Petition of Central Illinois Public

Service Company pursuant to Sec. 40 of the Environmental Protection

Act and Rule 502 of the Procedural Rules, to contest the denial of an

operating permit by the Environmental Protection Agency for its power

generating station at Coffeen, Illinois, filed September 6, 1973. By

letter dated October 8, 1973, Petitioner waived the 90 day time limit

for Board action, as required by Sec. 40 of the Environmental Protect-

ion Act.

The Agency, on November 28, 1973, filed an answer to the Petition,

requesting the Board to affirm the Agency’s denial of the permit.

Hearing was held on December 7, 1973, in Coffeen, Illinois.

The parties have submitted a joint stipulation of facts which the

Board accepts and summarizes as follows:

1. Central Illinois Public Service Company (hereinafter referred

to as CIPS) is a corporation

duly organized and operating under the

laws of the State of Illinois.

It is engaged in the business of

gen-

erating and distributing electricity for sale in the State of Illinois

and is a public utility within the meaning of the laws of the State of

Illinois.

2. The Illinois Commerce Commission in Docket H-488l8 ordered on

July 24, 1962, that CIPS be granted a certificate of public convenience

and necessity for the construction, operation and maintenance of a

steam electric generating plant and appurtenances, including an impound-

ing dam and a water accumulation area

be used 

by the plant, located

—

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about two miles southwest of the village of Coffeen.

3. The Department of Public Works and Buildings of the State of Ill-

inois issued Permit #9894 on September 17, 1962, allowing CIPS to build

an earthen dam, spiliway, and appurtenances on Mcflavid Branch of the

East Fork of Shoal Creek, about 3 1/2 miles south of Coffeen.

4. On June 25, 1972, C1Ps applied to the U.S. Corps of Engineers,

application #IL LMS OXL 2 000044 for a discharge permit. On August 8,

1972, CIPS furnished the U.S. Environmental Protection Agency requested

information.

5. CIPS purchased 3400 acres on which to construct the power plant

and impound waters for cooling purposes. This impoundment became Cof-

feen Lake.

6. The plant was built near coal deposits so that it could be sup-

plied with coal from an on—site nine.

7. Construction on the insballation began on August 13, 1962. There

are two generating units on the site. Unit #1 has a rated output of

330,000 kw and came on stream December 20, 1965, and Unit ~2 has a rated

cacacity of 550,000 kw and came on stream Sept. 26, 1972.

3. Water is pumped from trie west arm of Coffeen Lake and used to

cool steam, ~nd then the cooling water is returned to the east arm of

the lake after absorbing heat in the rondenser. Cooling of this water

is done basically by evaporation and conduction.

9. Ash, a product of combustion 

the boilers, is carried by water

to an ash storage lagoon and after holding there, where the ash settles

cut, the water passes on to the lake.

10. Domestic waste from the plant is treated by a tertiary treatment

plant and then discharged into the lake. The treatment plant was built

pursuant ~o a permit issued by the Sanitary Water Board, such permit

being known as Permit ~l963—FA—482, issued October 3, 1963.

11. The lake has been closed to 

the

cublic for its entire existence

except for a period from Sept. 24, l96~,to July 1, 1969, when part of

the

west shoreline of the lake 

was

leased to the Department of Conserva-

tion, State of Illinois, for recreational purposes.

12. The point on the dam where the lake can overflow it is 590 feet

above mean sea level.

CIPS alleges that

it was wrongfully denied an operating permit for

its plant in Coffeen by the Agency.

CIPS alleges in its petition

that

the Agency arbitrarily

and unreasonably denied

the

permit because the

Agency

believed that Coifeen Lake is subject to Chapter 3 of our Rules

and Regulations. CIPS claims that the only discharge covered by Chap-

ter 3 is that from the lake to the east branch of Shoal Creek..

~ ~‘78

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The Agency denied the permit because CIPS did not supply in its ap-

plication information as to the amounts and types of discharges to Cof-

feen Lake from the plant (Ex. B CIPS Petition) 

Without this data, the

Agency refused to issue a permit because it could not determine compli-

ance with the applicable Chapter 3 regulations.

The question before the Board is if the Agency wrongfully denied

CII’S a permit because CII’S did not supply effluent data for its dis-

charges fron~i the plant to the lake. The~answerto this question re-

quires the answer to a second question, “Is Coffeen Lake a water of the

state?” If it is, then the Chapter 3 regulations apply to discharges

to the lake and the Agency is correct in its denial.

Recently the Board has been faced with the question of what “waters

of the state” are (Alton Box Board Co. v. Environmental Protection

Agency, PCB 73-140; Allied Chemical v. Environmental Protection Agency,

PCB 73—382). The Board feels that this question is of such a variable

nature that no hard and fast rule can be set down, and so the Board

shall decide the case on its facts, and such other cases in the future

will be decided on the merits of each case.

Sec. 12 (a) of the Environmental Protection Act states that, “No

person shall cause or threaten or allow the discharge of any contamin-

ants into the environment in any state so as to cause or tend to cause

water pollution in Illinois, either alone or in combination with matter

from other sources, or so as to violate regulations or standards adopt-

ed by the Pollution Control Board under this act.”

Sec. 3 (o) of the Environmental Protection Act and Rule 104 of Chap-

ter 3, Water Pollution Regulations of Illinois, further define “waters”

as “all (emphasis added) accumulations of water, surface and underground,

natural and artificial (emphasis add~d), public and private (emphasis

added), or parts thereof which are wholly or partially within, flow

through, or border upon this state.”

The McDavid Branch of the east fork of Shoal Creek fits the definition

c~a water. It is a natural accumulation of water that flows through the

Sr.ate of Illinois. Though it does not flow for the entire year, testi-

mony by Richard Bergstrom of Sargent and Lundy Engineers stated that

though the stream is not and was not navigable when CIPS built the lake

(R. 24), before that time he did notice there was aquatic-based life in

the stream (R. 37). Coffeen Lake also fits the definition of “waters”

under the Act. It is an accumulation of water, which is on the surface;

it is artificial and private, and it is wholly within the State. This

interpretation is very broad and would lead to the conclusion that all

impoundments of water in the state are

“waters” under the Act. The

Board does not so find. This would be too broad a stroke to take.

The Board must look to the purpose of the Chapter 3 Regulations to

determine what impoundments are to be covered. Rule 203, General Stan-

dards, states that one of the purposes of the standards is to protect

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the state’s waters for aquatic life. As such McDavid Creek was and is

a water of the state to be protected. It has its own natural aquatic-

based life, and as such falls under Chapter 3.

Coffeen Lake was built by damming up McDavid Branch. As such it is

an impoundment of the stream. Part of the water in the lake comes from

McDavid Branch; the rest basically is water that would go to McDavid

B~anch from its watershed.

In substance, Coffeen Lake is a holding basin 

for the waters of Mc—

David Branch and is really a part of the stream. As such the Board

finds Coffeen Lake to be waters as defined in Sec. 3 (o) of the Environ-

mental Protection Act and Rule 104 of Chapter 3. Effluent to be dis-

charged into Coffeen Lake must meet the criteria as set forth in Chap-

ter 3, in order to protect the natural aquatic life of the McDavid

Branch that would then have passed to Shoal Creek, had Coffeen Lake not

been built.

The Board, in League of Women Voters v. North Shore Sanitary District,

PCB 71—7, 12,13,14, has held that a protected water of the state (i.e.,

Lake Michigan) cannot be used as a treatment works,- as the North Shore

Sanitary District was actually doing when bypassing raw sewage. This

case is distinguishable as to the fact that Coffeen Lake is a private

lake, but it is still a protected water of the state, and under 

juris-

diction of the Board as to discharges.

The Legislature has determined that it is in the public interest for

the health, safety, and general welfare of the people of the State of

Illinois to restrict discharges of contaminants into “waters” of the

State (Sec. 2 Environmental Protection Act). Due process has been afford-

ed all persons in the state by the public hearing procedure mandated in

all regulatory actions taken by the Board (Sec. 28 Environmental Protect-

ion Act). As such, the Board finds that there is no taking of Petition-

er’s property without due process and that the Board is carrying out the

mandate of the Legislature and is acting properly under the police pow-

ers of the State to protect the environment for public health and safety

purposes. Petitioner may continue to discharge into the lake for the

purpose for which the lake was intended, as long as it is done in accord-

ance with the valid regulations the Board has promulgated.

The Agency did not err in denying CIPS a permit if CIPS did not supply

effluent data of discharges from its plant to the lake.

The Board finds that this data was not supplied by CII’S to the Agency

and so the permit application was properly denied.

The Board must also note that 

the question of whether Coffeen Lake is

being used properly is not at

issue. 

It may well be that the waste

strearn~.

entering Coffeen Lake are in compliance, and, given this information

permit could be granted. It is the opinion of the Board that while 

is the right of the Petitioner to use the waters of the state, it is the

3tate’s right to insure that such use does not result in degradation~

In passing the Board notes the testimony of Dr. Durham as to nis study

of aquatic life in the lake. 

Though interesting, this testimo~ did not

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to the ultimate question herein decided.

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 the decision

of the Environmental Protection Agency denying an operating permit to

Central Illinois Public Service Company for its power generating sta-

tion near Coffeen, Illinois, is affirmed.

IT IS SO ORDERED.

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

Board, certify t~at the above Op1 ion and Order was adopted by the

Board on the  

‘

day of

___________,

1974,

by a vote of 

to

11 —681