KC-1360955-1
RECEIVED
CLERK'S OFFICE
FED 0 8 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOAT
TATE OF ILLINOIS
Ilution Control Board
PRAIRIE RIVERS NETWORK and
)
SIERRA CLUB
)
Petitioners,
)
V .
)
PCB 06-124
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
AMERICAN BOTTOM CONSERVANCY
)
and DALE WOJTKOWSKI,
)
Petitioners,
)
V .
)
PCB 06-127
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY arid PRAIRIE STATE GENERATING
)
COMPANY, LLC
)
Respondents
)
NOTICE OF FILING
Respondent, Prairie State Generating Company, LLC, hereby notifies the other parties to
this proceeding that on February 6, 2006, it filed with the Office of the Clerk of the Illinois
Pollution Control Board an original and nine copies of the attached RESPONDENT PRAIRIE
STATE GENERATING COMPANY, LLC'S MOTION TO DISMISS and MEMORANDUM
IN SUPPORT OF RESPONDENT PRAIRIE STATE GENERATING-COMPANY
LLC'S
MOTION TO DISMISS
.
KC-1360955-1
Date: February 6, 2006
Respectfully submitted,
W.C. Blanton
(Mo . Bar No . 54125)
BLACKWELL SANDERS PEPER MARTIN, LLP
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
Telephone : (816) 983-8151
Facsimile: (816) 983-8080
E-mail : wblanton@blackwellsanders .com
Alison M. Nelson
(Mo. Bar No . 58004)
BLACKWELL SANDERS PEPER MARTIN, LLP
720 Olive Street, Suite 2400
St. Louis, Missouri 63101
Telephone
: (314) 345-6218
Facsimile : (314) 345-6060
E-mail
:
anelsonna,blackwellsanders .com
ATTORNEYS FOR RESPONDENT,
PRAIRIE STATE GENERATING COMPANY,
LLC
2
KC-1360955- 1
CERTIFICATE OF SERVICE
The undersigned hereby certifies that copies of the foregoing Notice Of Filing have been
deposited in the U.S . Mail, first class postage prepaid, this 6th day of February, 2006, in
envelopes addressed to :
Carol Webb
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601-3218
Albert F. Ettinger
Richard H
. Acker
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601-2110
Penni S. Livingston
Livingston Law Firm
4972 Benchmark Centre, Ste . 100
Swansea, IL 62226
Sanjay Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
W.C. Blanton
BLACKWELL SANDERS PEPER MARTIN, LLP
4801 Main Street
Suite 1000
Kansas City, MO 64112
3
PRAIRIE RIVERS NETWORK and
)
SIERRA CLUB
)
Petitioners,
)
-- -- v- _
_
. j---
-PC-B-
06-i24
- -
- -:
.
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
V .
KC-1361468-
2
CLERK'S
:I
OF
VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD FED
o
3
2006
Respondents
and DALE WOJTKOWSKI,
)
Petitioners,
)
Respondents
)
AMERICAN BOTTOM CONSERVANCY
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and PRAIRIE STATE GENERATING
COMPANY, LLC
PCB 06-127
(NPDES Permit Appeal)
RESPONDENT PRAIRIE STATE GENERATING COMPANY, LLC'S
MOTION TO DISMISS
Respondent, Prairie State Generating Company, LLC ("Prairie State"), hereby moves the
Board pursuant to 35 111. Admin. Code § 101 .506 to dismiss the challenges made by Petitioners,
Prairie Rivers Network, Sierra Club, American Bottom Conservancy, and Dale Wojtkowski,-to
the NPDES permit that is the subject of this proceeding ("Permit") based on the following issues :
1 .
Whether the Permit unlawfully allows stormwater discharges before a stormwater
prevention plan ("SWPPP") is prepared and implemented .
Pollution
nE
Control
~I~OIS
Board
2.
Whether the Permit unlawfully fails to contain necessary effluent limitations for
the proposed discharge of stormwater and allows a proposed discharge pursuant
to a SWPPP that has not been reviewed by the Illinois Environmental Protection
Agency ("IEPA") and on which the public has not been given an opportunity to
comment
.
3.
Whether TEPA unlawfully did not consider the cumulative impacts on water
quality from the entire "Peabody" project, including additional discharges not
only from stormwater, but also from "the coal mine" and "the coal waste pile ."
4.
Whether IEPA unlawfully failed to adequately consider the impacts to water
quality, wildlife, recreation, public water supplies and other uses of the water
from the intake of up to 30 million gallons of water per day from the Kaskaskia
River by Prairie State and also failed to consider potential drought conditions
.
5.
Whether, in setting effluent limitations in the Permit, IEPA relied on assumptions
related to minimum flows of the Kaskaskia River that failed to consider water
withdrawals between the Venedy Station gauge and Outfall 001
.
The grounds for this motion are that Petitioners' challenges to the Permit based upon the issues
identified herein are legally insufficient, in that Petitioners have failed to plead facts upon which
the Board could conclude either (a) that the terms of the Permit violate the Illinois
Environmental Protection Act, 415 ILCS § 5/1, et
seq., or any applicable Board regulation or (b)
that issuance of the permit by IEPA violated that statute or any applicable Board regulation, all
as more fully discussed in Prairie State's memorandum in support of this motion, filed herewith
.
KC-1361468- 2
2
KC-1361468-2
Date: February 6, 2006
Respectfully submitted,
W.C. Blanton
(Mo. Bar No . 54125)
BLACKWELL SANDERS PEPER MARTIN, LLP
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
Telephone
: (816) 983-8151
Facsimile : (816) 983-8080
E-mail: wblanton@blackwellsanders .com
Alison M . Nelson
(Mo. Bar No . 58004)
BLACKWELL SANDERS PEPER MARTIN, LLP
720 Olive Street, Suite 2400
St. Louis, Missouri 63101
Telephone : (314) 345-6218
Facsimile : (314) 345-6060
E-mail: anelsona,blackwellsanders
.com
ATTORNEYS FOR RESPONDENT,
PRAIRIE STATE GENERATING COMPANY,
LLC
3
KC-1361468-2
CERTIFICATE OF SERVICE
The undersigned hereby certifies that copies of the foregoing Respondent
Prairie State
Generating Company, LLC's Motion To Dismiss have been deposited in the U
.S
. Mail, first
class postage prepaid, this 6th day of February, 2006, in envelopes addressed to :
Carol Webb
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601-3218
Albert F . Ettinger
Richard H . Acker
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601-2110
Penni S. Livingston
Livingston Law Firm
4972 Benchmark Centre, Ste
. 100
Swansea, IL 62226
Sanjay Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P
.O. Box 19276
Springfield, IL 62794-9276
W.C . Blanton
BLACKWELL SANDERS PEPER MARTIN, LLP
4801 Main Street
Suite 1000
Kansas City, MO 64112
4
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK'S OFFICE
FEB 0 8
2006
PRAIRIE RIVERS NETWORK and
STATE OF ILLINOIS
)
SIERRA
CLUB
Pollution Control Board
)
Petitioners,
)
PCB 06-124
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
AMERICAN BOTTOM CONSERVANCY
)
and DALE WOJTKOWSKI,
)
Petitioners,
)
v.
)
PCB 06-127
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION )
AGENCY and PRAIRIE STATE GENERATING )
COMPANY, LLC
)
Respondents
)
MEMORANDUM IN SUPPORT OF RESPONDENT PRAIRIE STATE GENERATING
COMPANY, LLC'S MOTION TO DISMISS
Respondent, Prairie State Generating Company, LLC ("Prairie State"), hereby submits its
memorandum in support of Respondent Prairie State Generating Company, LLC's Motion to
Dismiss ("Motion To Dismiss"), as follows :
KC-1361471-9
I. INTRODUCTION AND OVERVIEW
On January 6, 2006, Prairie Rivers Network and the Sierra Club (collectively,
"PRN/Sierra Club") filed a petition for review of the December 5, 2005 decision of the Illinois
Environmental Protection Agency ("IEPA" or "Agency") to grant a National Pollution Discharge
Elimination System ("NPDES") permit to Prairie State ("Permit"), pursuant to 415 ILCS 5/40(e)
(1998) ("PRN/Sierra Club Petition") . On January 8, 2006, American Bottom Conservancy and
Dale Wojtkowski (collectively, "ABC") filed a similar petition for review ("ABC Petition")
.
This Board consolidated the two cases on January 19, 2006 .
Prairie Rivers Network, Sierra Club, American Bottom Conservancy, and Dale
Wojkowski (collectively, "Petitioners") have attacked IEPA's issuance of the Permit on several
grounds. Among the issues raised by Petitioners are the following :
1 .
Whether the Permit unlawfully allows storm water discharges before a storm
water prevention plan ("SWPPP") is prepared and implemented
. (PRN/Sierra
Pet.' ¶ 7b
; ABC Pet.'
¶ 7b.)
2.
Whether the Permit unlawfully fails to contain necessary effluent limitations for
the proposed discharge of storm water and allows a proposed discharge pursuant
to an S WPPP that has not been reviewed by IEPA and on which the public has not
been given an opportunity to comment . (PRN/Sierra Pet . ¶ 7c; ABC Pet . ¶ 7c.)
3 .
Whether IEPA unlawfully did not consider the cumulative impacts on water
quality from the entire "Peabody project," including additional storm water
1 Prairie Rivers Network And Sierra Club Petition For Review Of A Decision By The Illinois Environmental
Protection Agency, filed January 6, 2006 .
2
American Bottom Conservancy And Dale Wojtkowski Petition For Review Of A Decision by the Illinois
Environmental Protection Agency, filed January 8, 2006
.
KC-1361471-9
2
discharges as well as discharges from "the coal mine" and "the coal waste pile ."
(ABC Pet . ¶ 7d.)
4.
Whether IEPA unlawfully failed to adequately consider the impacts to water
quality, wildlife, recreation, public water supplies and other uses of the water
from the intake of up to 30 million gallons of water per day from the Kaskaskia
River ("River") by Prairie State and also failed to consider potential drought
conditions: (ABC Pet. ¶ 7e.)
5 .
Whether, in setting effluent limitations in the Permit, IEPA relied on assumptions
related to minimum flows of the River that failed to consider water withdrawals
between the Venedy Station gauge and Outfall 001 . (PRN/Sierra Pet . ¶ 7d.)
By its Motion To Dismiss, Prairie State challenges the legal sufficiency of Petitioners'
attacks on the Permit that raise these issues
. In short, the Petitioners' - challenges are legally
insufficient for the following reasons :
•
Petitioners' general complaint that the Permit was issued prior to Prairie State's
preparation and implementation of an SWPPP fails because there is no legal
requirement that the provisions of an SWPPP be included in an application for an
NPDES permit .
• Petitioners' more specific contention that IEPA's failure to require the inclusion
of
the provisions of an SWPPP for the Facility as part
of the Permit violates a
requirement that the Permit contain all necessary effluent limitations for the Facility
at the time of issue and that the public thereby has been denied its right to comment
on the SWPPP fails because (a)
an SWPPP does not contain any effluent limitations,
KC-1361471-9
KC-1361471-9
and (b) there is no legal requirement that the public be provided an opportunity to
comment on a specific SWPPP prior to its development and implementation
.
•
ABC's complaint that the Permit does not address all discharges associated with
activities directly and indirectly relating to the Prairie State facility to which the
Permit applies fails because (a) ABC has failed to identify any provision of law
allegedly violated by the Permit, and (b) the separate permitting process for each
source of such discharges fully complies with Illinois law .
•
ABC's contention that IEPA erred in issuing the Permit without adequately
considering Prairie State's intake of water from the River under normal and drought
conditions fails because (a) ABC again has failed to identify any provision of law
allegedly violated by the Permit under such conditions, and (b) the Permit addresses
those conditions in complete accordance with all applicable legal requirements
.
•
PRN/Sierra Club's contention that IEPA relied on assumptions related to minimum
flows of the River that failed to consider water withdrawals between the Venedy
Station gauge and Outfall 001 fails because (a) PRN/Sierra Club has failed to allege
that this will cause the flow of the River to drop below 7Q10 levels,
3 and (b) in any
event, IEPA did consider these water withdrawals in its determination of the
maximum allowable daily water withdrawal amount in Special Condition 1 of the
Permit .
'The 7Q10 flow value is the lowest stream flow for seven consecutive days that would be expected to occur once in
ten years . See 40 C.F.R. § 721
.91 (defining "7Q10" for purposes of computation of estimated surface water
concentrations for significant new uses of chemical substances) ; 40 C .F.R. § 131 .36 (defining "7Q10" for purposes
of determining toxics criteria for those states not complying with 33 U.S.C. §
303(c)(2)(B)) ; EPA, NPDES Permit
Writers' Manual : Chapter 6
- Water Quality-Based Effluent Limits (recommending a design upstream flow for
chronic aquatic life criteria at 7QI0), available at http ://www.epa.Rov/npdes/pubs/chapt
06.pdf
.
4
II. FACTS
The "facts" relevant to the issues addressed by Prairie States' Motion To Dismiss are
as
follows4
Prairie State plans to build an electric generating facility ("Facility")
in Lively Grove
Township, Washington County, which is located approximately four miles east, northeast of
Marissa, Illinois. The proposed Facility will generate electricity from steam-driven turbines,
supplied by two coal-fueled boilers
. The Facility will be a mine-mouth project, and will be
constructed adjacent to the proposed Lively Grove Mine ("Mine") . (P.RN/Sierra Pet
. Ex. F at 3 ;
ABC Pet . Ex
. B at 3.)
The Facility is authorized to withdraw up to 30 million gallons of water per day from the
River to be used in the coal-fired boiler units and recycled within the Facility for other
operational purposes . (PRN/Sierra Pet. Ex
. F at 3
; ABC Pet. 114, 21
; ABC Pet. Ex. B at 3 .)
This withdrawal has been authorized, subject to certain conditions, by the Illinois Department of
Natural Resources ("IDNR") . (PRN/Sierra Pet . Ex. F at 6 ; ABC Pet. 14
; ABC Pet. Ex. B at 6.)
IDNR issued IDNR Permit No
. DS2002134 ("Withdrawal Permit") to Prairie State on
September 17, 2002, and amended that permit on June 29, 2005
. Additional conditions on this
withdrawal are established by Special Condition 1 of the Permit, which mandates that Prairie
State shall not withdraw water from the River "such that the river flow drops below the 7Q10
flow value as established by the Illinois State
Water Survey for any single
day . . . calculated based on the river flow value at the Venedy Station USGS gage
[sic]..
(PRN/Sierra Pet . Ex. E at 9 ; ABC Pet. Ex. A at 9 .)
KC-1361471-9
4
These statements of purported and actual fact are gleaned from Petitioners' Petitions and the Exhibits thereto .
They are provided to place Petitioners' challenges to the Permit and the issues raised by Prairie State's Motion To
Dismiss in context solely for the purposes of that Motion To Dismiss
. By setting forth this statement of "facts"
herein, Prairie State does not waive, but hereby expressly preserves, its right to contest any and all assertions of
purported fact advanced by Petitioners in the course of these proceedings .
5
There are ongoing withdrawals of water from the River between the Venedy Station
gauge and Outfall 001 . (PRN/Sierra Pet . ¶ 24 .) There are also contributions to the River stream
flow that occur downstream from Venedy Station, from tributaries entering the River .
(PRN/Sierra Pet . Ex. F at 7-8 ; ABC Ex. B at 7-8.)
Facility operation will result in the average discharge of 1 .7 million gallons of water per
day into the River. In addition, overflow discharges into Mud Creek may occur during extreme
wet weather events. (PRN/Sierra Pet
. 14
; ABC Pet . ¶ 5 .)
On September 19, 2003, Prairie State submitted to IEPA an application for an NPDES
permit that would authorize the necessary discharges from the Facility
. (Prairie State NPDES
Application, Transmittal Letter .) Beginning March 23, 2005, IEPA issued public notice of
IEPA's tentative determination to issue an NPDES permit to Prairie State. (PRN/Sierra Pet
. Ex.
F at 2 ; ABC Pet . Ex. B. at 2.) In response to public requests for a hearing, IEPA held a public
hearing on the draft permit at Marissa High School on May 11, 2005 . Approximately 80 people
attended the hearing. (PRN/Sierra Pet . Ex. F at 3 ; ABC Pet . Ex. B . at 3 .)
On December 5, 2005, IEPA issued the Permit, which incorporates certain changes to the
draft permit not relevant to the issues presented here . (PRN/Sierra Pet
. 18; ABC Pet . ¶ 8 .) The
Permit authorizes only the discharges resulting from direct operation of the Facility and storm
water discharges associated with that industrial activity
. Finally, the Permit mandates that an
SWPPP "shall be completed [by Prairie State] within 180 days of the effective date of this
permit ." (PRN/Sierra Pet. Ex. E at 12 ; ABC Pet. Ex. A at 12 .)
KC-1361471-9
6
Ill. ARGUMENT
A.
Applicable Legal Standard
In this case, the Board must determine whether Petitioners have proven that the Permit
will violate the Illinois Environmental Protection Act ("Illinois Act") or any applicable Board
regulations .5 In Village of Lake Barrington v . IEPA, PCB 05-55 (April 21, 2005), the Board
noted that "the petitioners in a third party NPDES permit appeal bear the burden of establishing
that the permit
as issued would violate the Act or Board regulations . . . .[M]ere dislike is not
sufficient to satisfy that burden . In this case, the Board finds that petitioners must establish that
the permit issued to [the permit applicant] will violate the Act or Board regulations in order for
the Board to find for the petitioners in this matter ." Id. at 7. With respect to the issues that are
the subject of the Motion To Dismiss, then, Petitioners bear the burden of proving that the Permit
violates some provision of either the Illinois Act or an applicable Board regulation .
The Board's procedural rules provide that a party may file "motions to strike, dismiss, or
challenge the sufficiency of any pleading filed with the Board" within 30 days after service of
the challenged document . 35111. Adm. Code 101 .506
. A motion to dismiss challenges the legal
sufficiency of the Petition by alleging defects on the face of the petition itself. When ruling on a
motion to dismiss, the Board must take all well plead facts contained in the pleading
as
true, and
must draw all inferences from those facts in favor of the non-moving party .
Lone Star Indus.,
Inc. v. IEPA, PCB 03-94 at 2 (March 6, 2003) ; Jarvis v. South Oak Dodge, Inc ., 201111 . 2d 81,
86,'773 N.E.2d
641, 644 (2002) .
determination
s
Prairie Rivers
that
Network
a conservation
v . IPCB,group
335 111had .
the
App.
burden
3d 391,
of proof
401, 781
in its
N.Ethird-party
.2d 372, 379
appeal
(2002)
of
(upholding
an NPDES permit
the Board'sissued
to
Act
the
or
permit
the Board's
applicant,
regulations")noting
that
; Prairie
"a third-party
Rivers Network
petitioner
v . IEPA,must
show
PCB
that
01-112
the
at
permit,
9 (Augas .
issued,
9, 2001)
would
("As
violate
petitioner,the
(emphasis
Prairie Rivers
in original)beats
the
; Village
burden of
of
proving
Lake Barringtonthat
the
v
permit
.IEPA,
; as
PCB
issued,05-55 wouldat
6 (April
violate
21,
the
2005)
Act or
(citingBoard
regulationsJoliet
Sand
.")&
Gravel Co. v. PCB, 163111. App. 3d 830, 833, 516 N .E.2d 955, 958 (1987)) .
KC-1361471-9
B.
SWPPP Issues
1 .
Failureto Include SWPPP in Permit Generally
Petitioners argue that IEPA should not have issued the Permit until an SWPPP had been
completed . (PRN/Sierra Pet . ¶ 19; ABC Pet
. ¶ 13 .) However, Petitioners cite no provision of the
Illinois Act or any Board regulation that generally prohibits IEPA from issuing an NPDES
permit prior to completion of an SWPPP . Although Petitioners do cite the Illinois Act, 415 ILCS
5/12, and a number of Board regulations, as well as 33 U
.S .C. §§ 1311 and 1342, in support of
this contention (PRN/Sierra Pet . ¶ 25 ; ABC Pet. ¶¶ 17, 18), these statutes and regulations do not
compel IEPA to require the submission of an SWPPP prior to issuing a storm water permit .
a.
Not required by applicable federal and Illinois law
IEPA administers its NPDES permit program pursuant to the approval of that program
. by
the United States Environmental Protection Agency ("USEPA")
. See State of Illinois Program
for Control of Discharges of Pollutants to Navigable Waters, 44 Fed . Reg. 58,566 (Nov . 10,
1977) (generally approving the Illinois NPDES permit program)
. As part of its program, IEPA
must regulate storm water discharges from industrial activity in conformance with the applicable
federal regulations . See 40 C .F.R. § 123.25(a)(9)
(requiring state programs to be administered in
conformance with 40 C
.F.R
. § 122
.26) . See also 415 ILCS 5/4(1) (designating IEPA as "water
pollution agency for the state for all purposes" of the Federal Water Pollution Control Act
("Clean Water Act" or "CWA"), as amended)
. However, IEPA has promulgated no statutes or
regulations that directly address the procedures or requirements for applications for storm water
discharge permits .
In general, though, the Illinois Act provides that "it would be inappropriate and
misleading for the State of Illinois to issue permits to contaminant sources subject to [the CWA],
KC-1361471-9
8
as well as State law, which do not contain such terms and conditions as are required by federal
law, or the issuance of which is contrary to federal law ." 415 ILCS 5111(a)(4)
. Therefore, the
federal regulations for storm water discharges provide guidance for such permits .
Under 40 C.F.R. § 122 .26(c)(1), all dischargers of storm water associated with industrial
activity must apply for an individual permit, or must seek coverage under a general permit
.6
IEPA must regulate discharges from the Facility in conformance with this regulation, because
"storm water discharge associated with industrial activity" is defined to specifically include
discharges from steam electric power generating facilities . 40 C.F.R § 122 .26(b)(14)(vii) . Here,
IEPA required Prairie State to obtain an individual permit .' The Permit is, in part, such an
individual permit, and was properly issued in conformance with the federal regulations
governing such permits .
KC-1361471-9
6 The Illinois Act specifically authorizes IEPA to issue general NPDES permits:
The Agency may issue general NPDES permits for discharges from categories of point sources
which are subject to the same permit limitations and conditions . Such general permits maybe
issued without individual applications and shall conform to regulations promulgated under
Section 402 of the Federal Water Pollution Control Act, as now or hereafter amended .
415 ILCS 5/39(b) . Pursuant to this authority, IEPA has issued general permits in conformity with 40
C .F .R. § 122
.28(a)(2), which provides that general permits may be issued to regulate categories of discharges,
including storm water point sources, and with 40 C .F.R. § 122 .28(b), which provides that general permits may be
issued in accordance with either the USEPA regulations contained in Part 124 or corresponding State regulations .
See generally 40 C .F .R . pt. 124 (setting forth general procedures for decisionmaking, including procedures for
permit application, issuance of a draft permit, notice, and public comment).
IEPA has issued two general storm water discharge permits pursuant to 40 C .F .R . § 122 .28 : General NPDES
Permit No
. ILRI0, which authorizes storm water discharges from construction site activities ; and General NPDES
Permit No. ILROO, which authorizes storm water discharges from industrial activities. However, storm water,
discharges from the operation of the Facility cannot be authorized by either of these general permits .
First, General NPDES Permit No
. ILR10 authorizes only storm water discharges from construction site activities.
However,
the storm water discharges at issue in this proceeding are discharges that will be associated with the
operation of the Facility after construction is complete and after operation begins . Therefore, General NPDES
Permit No
. ILR10 does not apply to such discharges . (General NPDES Permit No . ILR10 does of course, cover
Prairie State's construction site activities that will be involved in building the Facility
.)
Second, General NPDES Permit No. ILROO is not applicable to storm water discharges subject to the effluent limits
in 40 C.F.R. Part 423 . See General NPDES Permit'No . ILROO at 3
. The Facility will be subject to the effluent
limits in 40 C .F.R
. Part 423, because those effluent limits apply to coal-fired electricity generating units that
generate electricity for distribution and sale and employ a steam water system as the thermodynamic medium, 40
C .F .R. § 423.10,
and the Facility contains such units .
9
Significantly, 40 C
.F.R. § 122
.26(c)(1)(i) does not require an application for a storm
water discharge permit to include a completed SWPPP
. Furthermore, no deadline for preparing
an SWPPP appears in any of the other federal regulations to which IEPA's permit program must
conform. See 40 C .F.R. § 122.21
(requiring compliance with 40 C .F.R. Part 124)
; 40
C .F.R § 122
.26 (requiring compliance with 40 C
.F .R. § 122 .21); 40 C.F.R
. § 122 .41 (listing
conditions applicable to all NPDES permits)
; 40 C.F.R. § 122
.44 (listing additional conditions
applicable to all NPDES permits)
; 40 C .F.R. § 123
.25 (requiring state programs to conform to
certain statutes).
Rather, these regulations mandate only that an NPDES permit include
conditions
to
ensure that the facility follows Best Management Practices
("BMPs") . See 40
C.F.R. § 122
.44(k) ;8 40 C.F.R. § 123
.25(a)(15) (requiring state programs to be administered in
conformance with 40 C .F.R. § 122
.44)
. The Permit clearly contains such a condition
. See
PRN/Sierra Pet
. Ex. E at 12 and ABC Pet. Ex
. A at 12 (stating the condition that the permittee
develop a storm water pollution prevention plan that ensures the implementation of practices
which are to be used to reduce the pollutants in storm water discharges)
.
Furthermore, neither USEPA nor IEPA regulations even require submission of an
SWPPP for review by the permitting agency
; rather, the SWPPP is retained at the construction
site.
See USEPA, Storm Water Management for Industrial Activities, Developing Pollution
Prevention Plans and Best Management Practices at 2-49 (Sept
. 1992) ("Plans are required to be
maintained onsite of the facility unless the Director
. . . requests that the plan be submitted
."); see
also PRN/Sierra Pet. Ex. E at 12 and ABC Pet
. Ex
. A at 12 ("The owner or operator of the
s ("[Ejeach NPDES shall include conditions meeting the following requirements
when applicable
: . . . (k) Best
management practices (BMPs) to control or abate the discharge of pollutants
when: . . . (4) The practices are
reasonably necessary to achieve effluent limitations and standards
or to carry out the purposes and intent of the
CWA.")
.
KC-1361471-9
10
facility shall make a copy of the plan available to the Agency a any reasonable time
upon
request!) (emphasis added).
This Board has previously held that allowing a permittee 180 days from the effective date
of an NPDES permit to develop a similar plan is "not inconsistent with applicable regulations
."
Prairie Rivers Network v . IEPA, PCB 01-112 at 22-23 (Aug. 9, 2001) (`Black Beauty") . In that
case, IEPA issued a permit that allowed the permittee 180 days to develop a plan for monitoring
stream flow that would assure that a three-to-one dilution rate was achieved and thus would
prevent violations of applicable water quality standards .
The Board held that "the 180-day
period provides a reasonable amount of time for [the permittee] to develop an appropriate plan to
comply with the permit condition based on site-specific factors ." Id. at 23 . Finally, the Board
concluded that the petitioner "failed to demonstrate that the terms of the permit . . . will cause a
violation of the Act or of Board regulations ." Id
.
As in Black Beauty, Petitioners have failed to demonstrate that the terms of the Permit
will cause a violation of the Illinois Act or any Board regulation
. The Permit requires Prairie
State to develop an SWPPP within 180 days of the effective date of the Permit . This will ensure
that the SWPPP is completed years before the storm water discharges authorized by the Permit
take place .
In addition, any storm water discharges associated with construction of the Facility must
satisfy General NPDES Permit No
. ILR10, which requires only that an SWPPP must be prepared
for each construction site "prior to the start of the construction to be covered under this permit ."
See General NPDES Permit No. ILRIO at 4
. Prairie State has not yet filed a Notice of Intent to
be
covered under this General Permit, as Petitioners
observe
.
(PRN/Sierra
Pet ¶ 21 .) But it also has not yet commenced construction of the Facility . Significantly,
KC-1361471-9
Petitioners have not alleged that Prairie State plans to commence construction prior to filing such
notice
. In any event, Petitioners' reference to the requirements of General NPDES Permit No
.
ILRI0 only confuses the issue
-
storm water discharges from the Facility construction site are
not authorized by the Permit
. Rather, such discharges will be authorized by the separate Illinois
construction storm water general permit . 9
b.
Not requiredbyIllinois
and federallaw citedby
Petitioners
The federal statutes cited by Petitioners merely prohibit any person from discharging any
contaminant into the environment except as in compliance with federal law or with the terms of
an NPDES permit . See 33 U
.S.C
. § 1311 (noting that the discharge of any pollutant by any
person shall be unlawful, except as in compliance with certain other sections of the Clean Water
Act, including the NPDES permit provision) ; 33 U.S
.C. § 1342 (authorizing the Administrator to
issue a permit for the discharge of a pollutant upon the condition that the discharge meets all
applicable requirements under the Act)
. These general provisions therefore authorize discharges
pursuant to a valid NPDES permit so long as the discharge will comply with "such conditions as
the Administrator determines are necessary to carry out the provisions" of the Clean Water Act
.
33 U.S.C
. § 1342(a)(1)(B)
. Nothing in the text of either 33 U
.S .C. § 1311 or 33 U .S .C
. § 1342
requires the preparation of an SWPPP prior to the time at which a permit is issued
.
Likewise, the provision of the Illinois Act cited by Petitioner, 415 ILCS 5/12, simply
provides that no person shall cause a discharge of any contaminant except as in compliance with
state law or with the terms of an NPDES permit
. See 415 ILCS 5/12(a) (providing that no
person shall "cause or threaten or allow the discharge of any contaminants into the
environment . . . so as to cause water pollution in Illinois
. . .
or so as to violate regulations or
water
s
Notably,
dischargesPetitioners
from
do
the
not
Facility
contend
construction
that Prairie
site
State
.
must obtain an individual permit that authorizes any storm
KC-1361471-9
12
standards adopted by the Pollution Control Board under this Act
.");
415 ILCS 5/12(f) (providing
that no person shall "cause, threaten or allow the discharge of any contaminant into the waters
of
the state . . .
without an NPDES permit for point source discharges
. . .
or in violation of any term
or condition imposed by such pennit ")
. Nothing therein specifically requires that an SWPPP be
completed prior to the time at which a permit is issued.
35 Ill . Adm. Code 309.141(d)
requires only that the terms and conditions of an NPDES
permit must ensure compliance with any more stringent limitation necessary to meet any
applicable water quality standards
. In other words, this regulation ensures that even those
discharges that would otherwise comply with applicable effluent regulations
will not violate
more restrictive water quality standards
.
However, 'completion of an SWPPP
will not impose any such "more stringent
limitations" on Prairie State's discharge
. First, Petitioners have presented no evidence that
those
discharges pursuant to the effluent regulations embodied in the Permit's
terms will violate a
water quality standard, so this regulation does not
apply
. Moreover, the SWPPP, once
completed, will not contain "more stringent limitations" regarding the allowable concentration
of
contaminants in Prairie State's effluent, since an SWPPP is not designed to impose limitations on
the concentration of contaminants in an effluent stream
. Rather, an SWPPP identifies
potential
sources of pollutants, and describes the storm water management controls that will be
implemented by the permitted facility.
35 Ill. Adm
. Code 309.146
only mandates that IEPA must require the holder of every
NPDES permit to comply with certain monitoring and reporting requirements
. Specifically, the
permit holder must establish and maintain' records
;
make reports adequate to determine
compliance with all effluent limits and special permit conditions
; use and maintain monitoring
KC-1361471-9
13
equipment and methods
; take samples of effluent
; and provide such other information as may
reasonably be required
. 35 Ill
. Adm. Code 309 .146(a)
. The regulation also requires each such
requirement to be included in the permit as
a permit condition
. 35 Ill . Adm . Code 309.146(b)
.
The terms of the Permit clearly fulfill these requirements
. Numerous provisions of the Permit
provide that "the effluent of the following discharge(s) shall be monitored and limited at all
times."
(PRN/Sierra Pet. Ex. E. at 2-8
; ABC Pet . Ex. A at
2-8.)
Furthermore, Special Condition
20 requires Prairie State to record monitoring results on Discharge Monitoring Report Forms and
submit the completed forms to IEPA
. (PRN/Sierra Pet
. Ex. E. at 11
; ABC Pet . Ex
. A at 11 .)
In short, Petitioners have failed to identify any provision of the Illinois Act or any
applicable Board regulation allegedly violated with respect to this complaint
. Therefore, they
have failed to establish any legal basis for their contention that an SWPPP had to be completed
before IEPA issued the Permit
.
c.
Not necessary to assure Petitioners' interests
Assuming for the sake of argument that Petitioners are entitled to notice of the SWPPP
provisions so that they might request IEPA to compel changes in the SWPPP before it is
implemented by Prairie State in connection with its operation of the Facility, the Permit provides
Petitioners that opportunity
. Paragraph I of Special Condition 21 of the Permit, which addresses
the required SWPPP for the Facility, provides
:
The plan [SWPPP] is considered a report that shall be available to
the public under Section 308(b) of the CWA
. The permittee may
claim portions of the plan [SWPPP] as confidential business
information, including any portion describing facility security
measures.
(PRN/Sierra Pet . Ex. E. at 12
; ABC Pet. Ex . A at 12.)
In addition, Paragraph C of Special
Condition 21 provides :
KC-1361471-9
14
The permittee may be notified by the Agency at any time that the
plan does not meet the requirements of this condition .
After such
notification, the permittee shall make changes to the plan and shall
submit a written certification that the requested changes have been
made. Unless otherwise provided, the permittee shall have 30 days
after such notification to make the changes .
(PRN/Sierra Pet . Ex. E. at 12; ABC Pet . Ex . A at 12.)
Here, Prairie State's SWPPP for the Facility must be completed 180 . days from the
effective date of the Permit, i.e., December 5, 2005
. Thereafter, Petitioners and all other
members of the public have a right to review the provisions of the SWPPP. If they are
dissatisfied with any of those provisions, they may request IEPA to require Prairie State to make
changes to the plan. If the Agency refuses to do so, anyone who made such a request may
petition this Board for review of IEPA's decision . 415 ILCS 5/5(d) (granting the Board authority
to conduct hearings on petitions for review of final determinations which are
. made pursuant to
the Act or Board rule); 35 Ill . Adm. Code 105 .204(f) ("If the Agency's final decision is to
deny
or to conditionally grant or approve, the person who applied for or otherwise requested the
Agency decision, or the person to whom the Agency directs its final decision, may petition the
Board for review of the Agency's final decision .").
Because all of this can be accomplished years before construction of the Facility could be
completed and the SWPPP implemented, the Permit effectively places Petitioners in the same
position they would occupy if this challenge to the Permit were successful .
Thus, the Permit as
issued provides Petitioners the right of review of Prairie State's SWPPP for the Facility that
Petitioners seek in this appeal, albeit via a different process than that sought here
. Consequently,
there has been no harm to any interest of Petitioners with respect to the matters that are the
subject of this particular challenge to the Permit
. For this reason, too, IEPA's requirement that
KC-1361471-9
15
an SWPPP must be completed within 180 days of the effective date of the Permit fully complies
with applicable state and federal law .
2.
Failureto
Include SWPPP in Permit as Purported Denial of Public
Participation .
Petitioners further contend that IEPA's failure to require Prairie State to submit an
SWPPP as part of its application for the Permit prevents meaningful public participation in the
review of that SWPPP and fails to give the public notice of proposed effluent limitations in
violation of 35 Ill
. Admin. Code 309 .108(b) and 309
.113 . (PRN/Sierra Pet . ¶ 25
; ABC
Pet. ¶ 19.)
They assert that this violates the federal Clean Water Act's mandate in 33
U.S .C. § 1342(b)(3) that state NPDES permit programs must "insure that the public
. . .
receive[s] notice of each application for a permit and . .
. an opportunity for public hearing before
a ruling on each such application
." (PRN/Sierra Pet . 122; ABC Pet . ¶ 15
.) These contentions
are without merit .
a.
No violation of applicable Illinois or federal law
As noted above, preparation of an SWPPP and review by IEPA prior to the effective date
of the Permit is not required by state or federal law
. The federal regulations with which IEPA's
permit program must conform mandate only that the Permit must include conditions to ensure
that the Facility follows BMPs . 40 C .F.R. § 122 .44(d)(4) .
Also, as discussed above, an SWPPP is considered a report that shall be available to the
public. (PRN/Sierra Pet
. Ex. E. at 14; ABC Pet . Ex. A
. at 14.) Therefore, Petitioners may review
Prairie State's SWPPP once it is complete and may comment on it at that time
. However,
Petitioners had no legal right to review such an SWPPP prior to issuance of the Permit
.
b.
No violationof Illinois or federallaw
citedby Petitioners
KC-1361471-9
16
The laws cited by Petitioners in support of the contention that the permit application must
contain a completed SWPPP also fail to support Petitioners' argument . First, 35 111 . Adm. Code
309.108(b) does not require submission of an SWPPP prior to . the time at which
a permit is
issued
. That regulation requires only that IEPA's tentative determination, regarding its decision
to issue a draft permit must contain proposed effluent limitations consistent with federal and state
requirements, a proposed schedule of compliance, and a brief description of any other proposed
special conditions that will have a significant impact on the discharge .
Nor will such a plan, once prepared, contain any additional "effluent limitations ."
Rather, an SWPPP only "includes site descriptions, descriptions of appropriate control measures,
copies of approved State, Tribal or local requirements, maintenance procedures, inspection
procedures, and identification of non-storm water discharges ." See 40 C .F.R. § 122
.44(s)(1)(iii)
(describing the elements of an SWPPP for a permit authorizing storm water discharges from
construction sites). That is because the purpose of an SWPPP is to require facilities to perform
planning and organizing, to perform source assessment, and to develop and adhere to BMPs,
which include schedules of activities, prohibitions of practices, maintenance procedures, and
other management practices to prevent or reduce the pollution in runoff from a site . See USEPA,
Storm Water Management for Industrial Activities
: Developing Pollution Prevention Plans and
Best Management Practices - Summary Guidance at 1 (Oct. 1992) .10
Therefore, that the
provisions of an SWPPP are not incorporated into the Permit does not violate any state or federal
law requiring effluent limitations and monitoring of such effluents
.
Petitioners' argument that the Permit violates 35 Ill . Adm. Code 309 .113 fails for the
same reasons discussed above. That regulation merely requires IEPA to publish a fact sheet with
1° This document is available online at http ://www .epa.gov/npdes/pubs/owm0236a .pdf.
KC-1361471-9
17
respect to each NPDES permit application following public notice of that permit, and provides
that the contents of that fact sheet must contain a quantitative description of the proposed
discharge described in the permit, as well as the tentative determinations required under Section
309 .108 .
This argument essentially piggy-backs on Petitioners' previous argument
- that the
tentative determination prepared under Section
309 .108
was inadequate . Because IEPA's
tentative determination with respect to Prairie State's permit application fulfilled the
requirements of Section
309.108,
IEPA's issuance of the Permit also did not violate this
regulation.
C.
Multiple Permit Issue
ABC additionally complains that IEPA failed to consider the cumulative impacts of the
Facility by issuing the Permit "in
a piecemealing fashion" and that "[d]espite the fact that all
permits could have been considered together," IEPA failed to consider the cumulative impacts of
those permits
. (ABC Pet . ¶ 20.)
However, ABC has made no attempt to demonstrate that the
Permit thereby violates either the Illinois Act or any applicable Board regulation
. Therefore, this
ABC contention is legally insufficient on its face
. Furthermore, IEPA's process of separately
addressing discharges from the Facility, the Mine, and the coal combustion waste disposal site
("CCW site"), as well as its process of separately addressing discharges associated with
industrial activity and those associated with construction activity at the Facility, fully comports
with applicable law .
Petitioners have identified a total of four NPDES permits that may be related in some
way to operation of the Facility:
KC-1361471-9
18
(1)
the Permit, which authorizes both discharges of water utilized in the operation of
the Facility, and discharges of storm water associated with operation of the
Facility;
(2)
the general permit for construction
activity discharges that will apply to
construction of the Facility ;
(3)
an NPDES permit to be issued for discharges at the Mine
; and
(4)
an NPDES permit covering discharges from the CCW site, which may receive
coal combustion waste from the Facility .
Obtaining a single NPDES permit for all of the discharges to be covered by the permits listed
above is not feasible because the applicable regulations require permit applicants to follow
different standards and procedures for these discharges
.
The Permit authorizes Prairie State to discharge certain waters associated with industrial
activity at the Facility. Illinois regulations provide specific application procedures for such a
permit. Specifically, Section 309.103
requires that a permit applicant "shall file an
application
. .
. on forms provided by the Illinois Environmental Protection Agency ." 35 Ill
.
Adm
. Code 309 .103(a)(1) .
In contrast, Illinois regulations clearly establish that if mining activities are to be carried
out at a facility for which an NPDES permit is required, the applicant must
submit a permit
application as required by 35111 . Adm. Code 403 .103, 403 .104, and 405 .104. 35 Ill. Adm. Code
309.103(c)
. Section 403
.103 requires that persons required to obtain an NPDES permit for
facilities where mining activities take place must file an application for a permit pursuant to
Section 405
.104 on forms provided by IEPA or USEPA.
35 Ill
. Adm . Code 403 .103(a) .
Section 403
.104 provides that no "person" shall construct a mine-related facility for which an
KC-1361471-9
19
NPDES permit is required unless "[t]he person holds an NPDES permit" containing certain
conditions . 35 I11. Adm. Code 403 .104. Finally, Section 405 .104 lists elements that any NPDES
permit for a mining facility must contain - elements that are neither required nor appropriate for
inclusion in the Permit .
These regulations governing discharges from facilities at which mining activities are to
be carried out clearly apply to discharges from the Mine
. The Mine is an underground coal
mine, and any discharges from the Mine are properly characterized as "mine discharge ." See 35
Ill . Adm. Code 402.101 (defining "mine discharge" to include "any point source discharge,
whether natural or man made, from a mine related facility") ; id
. (defining "mine related facility"
to include the "mine")
. "Production of a mine discharge" is a type of "mining activity," id ., and
an application for discharges from the Mine therefore must comply with the procedures set forth
in 35111 . Adm. Code Sections 403 .103, 403 .104, and 405
.104, none of which are applicable to
the discharges authorized by the Permit .
The Mine's NPDES permit will also authorize discharges of storm water associated with
industrial activity
. See 40 C.F.R. § 122.26(b)(14)(iii) (including active mining operations in the
definition of facilities engaging in "industrial activity")
. However, given the separate procedures
established by Illinois regulations governing permit applications, this point alone is insufficient
to justify requiring Prairie State to obtain a single NPDES permit for the discharges associated
with both the Facility and the Mine
.
Discharges from the CCW site also cannot be authorized by the Permit under Illinois law
.
Like the discharges from the Mine, discharges from the CCW site are discharges that must be
authorized pursuant to the Board's regulations for mining activities
. See 415 ILCS 5/3 .330(r)
(providing in pertinent part that no person shall "cause or allow the storage or disposal of coal
KC-1361471-9
20
combustion waste unless : . .
. (3) such waste is stored or disposed of at a site or facility which is
operating under NPDES and Subtitle D permits issued by the Agency
pursuant to regulations
adopted by the Board for mine-related water pollution") (emphasis added) . As discussed above,
an application for discharges from the Mine therefore must comply with the procedures set forth
in 35 111. Adm
. Code Sections 403 .103, 403 .104, and 405 .104, none of which are applicable to
the discharges authorized by the Permit .
The general NPDES permit that authorizes discharges of storm water associated with
industrial activity from construction sites, General NPDES Permit No
. ILR10, only authorizes
discharges that will take place before the facility is operational .
In contrast, the Permit addresses
storm water discharges due to industrial activity, i.e.,
discharges that will take place during actual
operation of the Facility. Given the differing nature of these discharges and the fact that they
will occur sequentially, not simultaneously, there is no reason for the construction storm water
discharges to be covered by the Permit rather than the applicable general permit
.
Moreover, there will be no cumulative effects from these discharges.
The Board's
effluent limitations set forth the maximum concentrations of various contaminants that may be
discharged to the waters of the State
. 35 Ill. Adm. Code 304 .101(a) . Thus, the regulation limits
the number of milligrams of each contaminant that can be present in each liter of water . See
generally 35 Ill. Adm. Code pt. 304. As a matter of basic mathematics, combining various
effluent streams cannot result in an overall increase in the concentration of a given contaminant,
because both the number of milligrams of the contaminant and the total volume of water in liters
will increase when the discharges are considered together
.
The Permit,
.as will each other permit at issue, expressly establishes limitations for certain
effluents known to have the potential to adversely affect water quality . Because each source's
KC-1361471-9
21
discharges will comply with all applicable water quality standards, the "cumulative" discharges
also will comply, as explained above
.
In addition, the Board's regulations also establish water quality standards that must be
met notwithstanding a discharge's compliance with the applicable effluent regulations
. See
generally 35 Ill. Adm. Code 302, Subpart B
. Furthermore, Special Condition 14 of the Permit
specifically provides :
The effluent, alone or
in combination with other sources,
shall not
cause a violation of any applicable water quality standard outlined
in 35 Ill. Adm. Code 302 .
(ABC Pet
. Ex . A. at 11 .) (Emphasis added;)
This absolute prohibition ensures that effluent from
the Facility, even in combination with other sources, will not violate an applicable standard
established by Board regulations .
Furthermore, IEPA has conducted an anti-degradation analysis and determined that the
discharge from the Facility will not otherwise unlawfully adversely affect the quality of the
receiving waters
. (ABC Pet . Ex . B at 11
.) This analysis takes into account the condition of the
River and the additive effects of each proposed discharge
. See 35 Ill . Adm. Code 301 .205(f)(2)
(requiring IEPA to consider the physical, chemical, and biological characteristics of the water
body, and identification and quantification of the proposed load increase for each contaminant)
.
In any case, although applying for multiple permits through a consolidated permit
application process is
authorized
by the CWA, the statute does not require
applicants to use the
consolidated process
. See 40 C.F.R. § 124
.4(a)(1) ("Whenever a facility or activity requires a
permit under more than one statute covered by these regulations, processing of two or more
applications for those permits may
be consolidated
.") (emphasis added).
In summary, ABC's complaints about Prairie State's purportedly "piecemeal" permits are
nothing more than general complaints about the structure of the permitting process itself
. ABC's
KC-1361471-9
22
complaints are completely unsupported by any effort to try to show that IEPA issued the Permit
in violation of the Illinois Act or any applicable Board regulation and therefore fail on the face
of
the petition. Furthermore, all of the NPDES permits either directly or indirectly related to
operations at the Facility have been, are being, or will be developed in full compliance with
the
procedural and substantive requirements of applicable law . Finally, the underlying requirement
that the discharges comply with effluent limitations and water quality standards ensures that
there will be no cumulative impacts from these discharges.
ABC therefore has failed to identify any provision of the Permit that would allow
discharges in violation of the applicable effluent limitations, water quality standards, or anti-
degradation principles . Thus, ABC's unsubstantiated assertion that the cumulative effects
of the
authorized discharges will violate such regulations when the individual discharges themselves do
not violate the regulations cannot be sustained on the undisputed facts . Consequently, ABC's
challenge to the Permit based on its contention that all discharges in question should be
addressed in a single NPDES permit must be dismissed .
D.
KC-1361471-9
Water Withdrawal Issues,
1 .
Withdrawal of up to 30 MillionGallons of WaterPer Day
ABC also contends that Prairie State's withdrawal of up to 30 million gallons of water
per day from the River fails to adquately consider the effect on water quality, habitat,
wildlife,
public water supplies, recreation, and navigation during drought conditions
. (ABC
Pet. 1121-25 .)
Once again, though, ABC makes no effort to demonstrate that the Permit
therefore purportedly violates some provision of the Illinois
Act or some applicable Board
regulation
. Consequently, this ABC challenge to the Permit also is legally insufficient on its
23
face. Furthermore, this ABC challenge fails on the merits, as the Permit is fully consistent with
Illinois law as to this issue .
Special Condition 1 of the Permit imposes conditions on Prairie State's ability to
withdraw water from the River .
[T]he permittee shall not withdraw river water such that the river flow drops
below the 7Q10 flow value as established by the Illinois State Water Survey for
any single day. This will be calculated based on the river flow at the Venedy
Station USGS gage [sic] where the 7Q10 flow is 74 cfs [cubic feet per second]
.
(ABC Pet
. Ex
. A at 9.) This Special Condition limits Prairie State's water withdrawal "in
addition to the conditions specified tinder IDNR Permit No . DS2002134" (ABC Pet
. Ex. A at 9),
which authorizes Prairie State to construct a water intake structure in the River and to withdraw
water from the River, subject to certain conditions
." ABC nonetheless contends that this Board
should revisit the Agency's determination regarding the appropriate volume of water Prairie
State may withdraw in this proceeding, arguing that, "because water quantity affects water
quality . . . water quantity is appropriately addressed through this appeal." (ABC Pet
. 121 .)
However, ABC overlooks the basic nature of the NPDES permit program, which is to
ensure that any discharges of contaminants or pollutants will not exceed water quality standards
set by state and federal law . See 35 Ill
. Adm. Code 309 .102(a) and 42 U.S.C. § 1342
(prohibiting discharges of pollutants except in compliance with law and with the provisions of
the required NPDES permit) . Although it is true that IEPA must consider the effects of water
withdrawal on water quality when it issues an NPDES permit, the scope of the Agency's
consideration of such effects is limited .
n Thus, the Permit conditions are more stringent than those imposed by IDNR in the Withdrawal Permit, which
authorizes Prairie State to withdraw water when 7Q10 levels at the Facility intake point are above
69 cfs . This condition reflects )DNA's determination that this limitation on the amount of water Prairie State may
withdraw will ensure that Prairie State's water usage will not contribute to degradation of stream quality when the
River stream flow is low. Neither ABC nor anyone else timely challenged this determination .
KC-1361471-9
24
The Permit, of course, sets limitations for certain effluents ; and these limitations are
based upon considered determinations as to the potential impact of each effluent on the receiving
waters. Additionally, as noted above, the Board's regulations establish water quality
standards
that must be met notwithstanding a discharge's
compliance with the applicable effluent
regulations. See generally 35 Ill. Adm. Code 302, Subpart B .
Furthermore, as noted above, Special Condition 14 of the Permit provides :
The effluent, alone or in combination with other sources, shall not
cause a violation of any applicable water quality standard outlined
in 35 Ill . Adm. Code 302 .
(ABC Pet. Ex. A. at 11 .) This absolute prohibition applies under all conditions that might
exist
in the River, including drought conditions . The Permit thus ensures that all authorized
discharges will comply with the applicable water quality standards .
In addition, as noted above, no discharge may unlawfully adversely affect an existing use
of a water body even if it complies with all effluent limitations and water quality standards
. 35
Ill. Adm. Code 302
.105 . ABC has failed to identify any provision of the Permit that would allow
discharges in violation of this regulation .
IEPA also adequately considered the impact of the volume Prairie State's withdrawal of
water from the River to the extent that such consideration is required by the Clean Water Act and
its implementing regulations . The CWA requires that "the location, design, construction, and
capacity of cooling water intake structures reflect the best technology available for minimizing
the adverse environmental impact" from such structures . 33 U.S.C
. § 1326(b). To comply with
this mandate, the owner or operator of a new facility that uses a cooling water intake
structure
must comply with certain regulations limiting the intake velocity and flow, and requiring that the
facility implement design and construction technologies designed to minimize fish mortality
and
entrainment. 40 C.F.R
. § 125.84
.
But that regulation provides only that the facility cooling
KC-1361471-9
25
water intake structure must be designed and constructed so such that the total design intake flow
for an intake in a freshwater river must be "no greater that five (5) percent of the source water
annual
mean flow." 40 C.F.R. § 125 .84(b)(3)(i)
; 40 C .F.R. § 125.84(d)(2)(i)
(emphasis added) .
ABC asserts that Prairie State's withdrawal will at times be as much as 25% of the actual
daily flow. (ABC Pet. ¶ 21
.) However, the relevant regulation does not limit the maximum daily
water withdrawal amount
. Thus, IEPA issued the Permit in conformance with that regulation
.
See 40 C
.F.R. § 123.25(36)
(requiring compliance with Subpart I of part 125)
. 12
In short
. Prairie State's right to withdraw water from the River is not unlimited
. Rather, .
it may do so only so long as its stream flow is greater than its 7Ql O level at Prairie State's intake
point
. Thus, contrary to ABC's suggestion, extreme drought conditions will not result in Prairie
State withdrawals from the River lowering its stream flow below its 7Q10 level at any location
.
Rather, such conditions will result in Prairie State's withdrawals from the River being restricted
or precluded entirely to avoid that possibility
. Thus, there is no factual basis to support this ABC
challenge
. Furthermore, Prairie State may only withdraw water and so long as its withdrawal
does not violate any applicable effluent limitation or water quality standard or otherwise
unlawfully adversely affect any existing use, so the Permit conditions ensure compliance with
these applicable regulations .
In summary, ABC has stated no legal basis for its request that IEPA be required to place
limits on Prairie State's water withdrawal more stringent than those in Special Condition 1 of the
Permit
. Furthermore, ABC has failed to allege any facts that would suggest that Prairie State's
discharges pursuant to the Permit will violate any applicable water quality standard or otherwise
12
Prairie State's cooling water intake structure for the Facility will be designed and constructed such that the total
IDNR
design
and
intake
IEPA
flow
authorizationsfrom
the River
. (NPDES
will be
Application,
only approximately
EPA 316(b)
1
.2%
Analysisof
the average
.)
annual flow, consistent with the
KC-1361471-9
26
violate any provision of the Illinois Actor any applicable Board regulation
.. Therefore, this ABC
challenge to the Permit is legally insufficient .
2
.
Use of7Q10 Data from Venedy Station Gauge
PRN/Sierra Club also argues that,
"[i]n setting effluent limits, the draft permit relied on
assumptions related to minimum flows of the Kaskaskia River that failed to consider water
withdrawals between the Venedy Station gauge and outfall 001
." (PRN/Sierra Pet. ¶ 7d.) In
connection with this contention, PRN/Sierra Club fixrther asserts that Special Condition 1 is
inadequate because its calculations for determining a maximum allowed daily withdrawal
amount when the stream flow of the River at the Venedy Station gauge is at 7Q10 levels "do not
account for water withdrawals by other parties between the Venedy Station gauge and outfall
001 that could lower the river flow below 7Q10 levels at outfall 001
." (PRN/Sierra Pet . ¶ 24.)
(Emphasis added .) According to PRN/Sierra Club, then, Special Condition 1 in the Permit
"may
result in violations of the permit limits at outfall 001 as well as violations of permit limits for
downstream discharges." (PRN/Sierra Pet . ¶ 24.) (Emphasis added .)
Notably, PRN/Sierra Club does not assert that the maximum daily withdrawal amount
authorized by Special Condition 1 of the Permit will lower the stream flow of the River below
7Q10 levels at Outfall 001 or that Prairie State's discharges in compliance with the Permit will
thus cause violations of such permit limits to occur
. PRN/Sierra Club's claim is therefore legally
insufficient on its face, because, as noted above, PRN/Sierra Club bears the burden of proving
that the Permit as issued will violate some substantive provision of either the Illinois Act or somee
applicable Board regulation
.
13
13 In any event, [EPA did account for these water withdrawals between the Venedy Station gauge and Outfall 001 .
(PRN/Sierra Pet. Ex. F at 7-8.) In its Responsiveness Summary,
IEPA stated that "[t]he flows from the tributary
streams downstream of the Venedy station gauge will make up the difference in 7Q10 flow in the Kaskaskia River at
KC-1361471-9
27
IV. CONCLUSION
For the reasons discussed above, Petitioners' challenges to the Permit addressed above
are legally insufficient to demonstrate that the Permit as issued violates either any provision of
the Illinois Act or any Board regulation applicable to the Permit
. Therefore, the Board should
dismiss both the PRN/Sierra Club Petition and the ABC Petition to the extent they challenge
IEPA's issuance of the Permit on the grounds addressed above
.
WHEREFORE, Respondent Prairie State Generating Company, LLC respectfully
requests the Board to grant its Motion To Dismiss, to dismiss Petitioners' challenges to the
Permit addressed herein, and to award it such other relief as Board deems just
.
the plant intake and discharge site
. If these streams are flowing at least 7Q10 flows, the 7010 of the Kaskaskia
River will be maintained downstream
." (PRN/Sierra Pet. Ex. F at 7-8.)
(Emphasis added .)
The Illinois State Water Survey map of the 7Q10 flows in the Kaskaskia Region, which Prairie State believes to be
part of the agency record, illustrates the 7Q10 flow at various points along the River. See
Illinois State Water
Survey, Map 7 Kaskaskia Region
: Kaskaskia River and Mississippi River Drainage Between the Illinois and
Kaskaskia (rev. Oct. 2002)
. The map shows two withdrawals of water between the Venedy Station gauge and
Outfall 001 due to municipal water use, which reduce the River flow by 3
.45 cfs. The map also shows four
increases in River flow between the Venedy Station gauge and Outfall 001 due to confluences with tributary
streams, as well as two increases due to outfalls from other dischargers, which adds approximately 21
.5 cfs to the
volume of water in the River
. This results in a net increase in River flow of approximately 18 cfs between the
Venedy Station gauge and Outfall 001
. By calculating Prairie State's allowed maximum daily water withdrawal
amount on the basis of the River flow at the Venedy Station gauge, the limitations IEPA has imposed on Prairie
.
State's water withdrawal are actually more strict
than if IEPA had calculated the allowable withdrawal amount on
the basis of the River flow at Outfall 001
.
KC-1361471-9
28
KC-1361471-6
Date : February 6, 2006
Respectfully submitted,
W.C. Blanton
(Mo. Bar No
. 54125)
BLACKWELL SANDERS PEPER MARTIN, LLP
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
Telephone : (816) 983-8151
Facsimile : (816) 983-8080
E-mail:
wblanton@blackwellsanders.com
Admitted pro hac vice
Alison M. Nelson
(Mo
. Bar No . 58004)
BLACKWELL SANDERS PEPER MARTIN, LLP
720 Olive Street, Suite 2400
St
. Louis, Missouri 63101
Telephone : (314) 345-6218
Facsimile : (314) 345-6060
E-mail : anelson@blackwellsanders
.com
Admitted pro hac vice
ATTORNEYS FOR RESPONDENT,
PRAIRIE STATE GENERATING COMPANY,
LLC
29
KC-1361471-6
CERTIFICATE OF SERVICE
The undersigned hereby certifies that copies of the foregoing Memorandum
In Support
Of Respondent Prairie State Generating Company, LLC's Motion
To Dismiss have been
deposited in the U.S
. Mail, first class postage prepaid, this 6th day of February, 2006, in
envelopes addressed to :
Carol Webb
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601-3218
Albert F. Ettinger
Richard H . Acker
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601-2110
Penni S. Livingston
Livingston Law Firm
4972 Benchmark Centre, Ste
. 100
Swansea, IL 62226
Sanjay Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
W
.C . Blan on
BLACKWELL SANDERS PEPER MARTIN, LLP
4801 Main Street
Suite 1000
Kansas City, MO 64112
30
