13. There is no evidence in the record of Illinois EPA permits allowing Historic Coal Ash to be used as fill or construction material in Historic Ash Areas.

36. Boron is a good coal ash indicator. Letter from Susan M. Franzetti, Counsel for Midwest Generation, LLC, to Andrea Rhodes, Illinois EPA, Re: Violation Notice 6282 at Bates MWG13-15_389 (July 27, 2012) [hereinafter MWG response to Powerton NOV] attached hereto as Ex. D9, at 6 (“[B]oron is generally considered a reliable tracer of potential ash leachate impacts.”); Patrick Engineering Inc., Proposal for Ash Pond Investigation Bates MWG13-15_10763 (Aug. 18, 2010) attached hereto as Ex. D10; Ex. E5, Seymour Dep. 89:5-89:17 (“The Witness. In general, boron is a good indicator. Q. Why do you say ‘boron is a good indicator’? A. Well, it’s a characteristic of ash and it is often found in ash areas, and it’s shown by studies to be mobile in the environment.”).

Illinois EPA issued Violation Notices to MWG Concerning Exceedances of Groundwater Quality Standards at all Four Sites, and Entered into Compliance Commitment Agreements with MWG Concerning those Exceedances.

46. Class I standards were in effect at Will County until Illinois EPA’s approval of the GMZ for that site on July 2, 2013. Ex. B8, Will County GMZ Approval Letter at Bates MWG13-15_16564; Ex. B5, IEPA, Violation Notice: Midwest Generation, LLC, Will County Generating Station Bates MWG13-15_333-34 (June 11, 2012).

47. Class I standards were in effect at Joliet 29 until Illinois EPA’s approval of a GMZ for that site on August 8, 2013. Ex. C8, Joliet GMZ Approval Letter at Bates MWG13-15_17183; Ex. C5, IEPA, Violation Notice: Midwest Generation, LLC, Joliet #29 Generating Station Bates MWG13-15_342-347 (June 11, 2012).

48. Class I standards were in effect at Powerton until Illinois EPA’s approval of a GMZ for that site on October 3, 2013. Ex. D14, Powerton GMZ Approval Letter at Bates MWG13-15_23977; Ex. D11, IEPA, Violation Notice: Midwest Generation, LLC, Powerton Generating Station Bates MWG13-15_348-358 (June 11, 2012).

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79. MWG has not installed any monitoring wells around the Spent Slurry Pond, the South Area Runoff Basin, or the Slag and Bottom Ash Dumping Area. See Ex. B3, Patrick, Will County Hydrogeological Assessment Report at Bates MWG13-15_7250.

107. 107'''''''''''''''''''' '''' '''''' '''''''''''''''''' ''''' ''''''' ''''''''''''''' ''''''''' '''''''''''''''' ''''''''''''''''''' ''' '''''''''' ''''' '''''' '''''''''''''''''' ''''''''' ''''''''''''' '''''''''''''''''''''''''' ''''' '''''''''''''''''''''''' '''''''' '''''' ''''''' '''''''''' ''''''''''' ''''''''''''''''''''''''''''''''

113. Groundwater has come into contact with coal ash at Waukegan Station. Groundwater elevations at Waukegan fluctuate between 579.27 and 584.56 feet above mean sea level. Ex. G, Seymour Report, at Tbl.4-5. Coal ash is buried at elevations as low as 582 feet above mean sea level. Ex. A4, KPRG, Geologic Logs for MW-8 and MW-9 at Bates MWG13-15_45648-45649.

114. In monitoring well MW-05, ash in the form of black coal cinders are found as deep as 17 feet below the ground elevation of 601.526 feet—thus, at a depth of 584.526 feet above MSL. Ex. A3, Patrick, Waukegan Hydrogeological Assessment Report at Bates MWG13-15_7175. At the same well, groundwater was recorded as high as 584.55 feet on June 13, 2011. Ex. G, Seymour Report, Table 4-5.

117. Groundwater has come into contact with coal ash at Will County Station. Groundwater elevations at Will County fluctuate between 579.13 and 583.87 feet above mean sea level. Ex. G, Seymour Report, at Tbl.4-7. Coal ash is buried at elevations as low as 578.6 feet above mean sea level. Ex. B3, Patrick, Will County Hydrogeological Assessment Report at Bates MWG13-15_7252.

i. MWG Allowed the Discharge of Contaminants into the Environment

	Section 12(a) of the Illinois Environmental Protection Act (“Act”) provides that “No person shall… [c]ause or threaten or allow the discharge of any contaminants 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….” The Act defines, “water pollution as:
such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the State, or such discharge of any contaminant into any waters of the State, as will or is likely to… render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild animals, birds, fish, or other aquatic life.

415 ILCS 5/3.545. “Waters,” in turn, is defined as “all accumulations of water, surface and underground, natural, and artificial, public and private, or parts thereof, which are wholly or partially within, flow through, or border upon this State.” 415 ILCS 5/3.550 (emphasis added). Waters of the state includes water in wells. Tri-County Landfill Co. v. Illinois Pollution Control Board, 41 Ill. App. 3d 249, 253-54, 353 N.E.2d 316, 320-21 (1976); People ex rel. Ryan v. Stonehedge, Inc., 288 Ill. App. 3d 318, 321-22, 680 N.E.2d 497, 500 (1997); see also People v. John Chalmers, PCB 96-111 7 (Jan. 6, 2000).
	To determine whether a party has “cause[d] or threaten[ed] or allow[ed] the discharge of any contaminants” into a waters of the State, Illinois courts and the Board focus on two factors: first and primarily, whether the party has the “capability of control” over the water pollutants or the premises where the water pollution occurred, and second, whether the party has taken “extensive precautions” to prevent pollution from occurring. See, e.g., Gonzalez v. Pollution Control Bd., 960 N.E.2d 772 (Ill. App. First Dist. 2011) (“Property owners are responsible for the pollution on their land unless the facts establish the owners either lacked the capability to control the source or had undertaken extensive precautions to prevent vandalism or other intervening causes”) (internal quotations omitted); People v. A.J. Davinroy Contractors, 249 Ill. App. 3d 788, 794 (1993) (defendant liable when it “neither lacked the capability to control the source of the pollution nor undertook any precautions to prevent the pollution”); Perkinson v. Ill. Pollution Control Bd., 187 Ill. App. 3d 689, 694-95, 543 N.E.2d 901, 904 (1989) (Illinois has a “long line of precedent… which holds that the owner of the source of the pollution causes or allows the pollution… and is responsible for that pollution unless… the owner either lacked the capability to control the source… or had undertaken extensive precautions to prevent vandalism or other intervening causes”).
	When a party owns the premises where pollution occurs, Illinois courts and the Board presume that party has control over those premises. See, e.g., People v. Inverse Investments, PCB 11-79, 2012 Ill. Env. Lexis 92, 25 (PCB Feb. 16, 2012) (denying motion to dismiss when complaint alleged that defendant owned site “that contained contamination that is migrating offsite and polluting groundwater”); Meadowlark Farms, Inc. v. Ill. Pollution Control Bd.,* 17 Ill. App. 3d 851, 861 (petitioner allowed water pollution in violation of Section 12(a) of the Act when it owned the premises on which the pollution occurred as well as the source of pollution); Freeman Coal Mining Corp. v. Ill. Pollution Control Bd., 21 Ill. App. 3d 157, 163 (1974) (finding liability for mine owner even when rain, “a natural force beyond the control of the Petitioner,” was the immediate cause of the discharge from the mine refuse piles).
	Parties who operate the premises or the source of pollution likewise exercise control over those premises or pollution sources. See A.J. Davinroy Contractors, 249 Ill. App. 3d at 794 (contractor operating bypass system had capability of control over pumps it was contractually obligated to maintain); People v. Michel Grain, PCB No. 96-143, 2002 Ill. Env. Lexis 489 at 7-9 (PCB Aug. 22, 2002) (denying lessee’s motion to dismiss when “a respondent with control over a site” may violate Act); see also Allaert Rendering, Inc. v. Ill. Pollution Control Bd., 91 Ill. App. 32 153, 155-56 (Ill. App. Ct. Third Dist. 1980) (holding plant operator liable under § 12(a) for threatening to discharge contaminants into surface water when the plant’s wastewater system held contaminated water in a lagoon that had previously flooded twice).
	Longstanding Board precedent makes clear that a party with control over the pollution or the premises where that pollution occurs may be liable for allowing water pollution in violation of § 12(a) even if that party did not place the contaminants at issue in the ground or water. See Inverse Investments, PCB 11-79, 2012 Ill. Env. Lexis 92 at 25 (denying motion to dismiss because “the current owner may be responsible for contamination even if the current owner did not actively dispose of the contamination”); Michel Grain, 2002 Ill. Env. Lexis 489, at 7 (“a respondent with control over a site may be found in violation even if the respondent did not actively dispose of contaminants at the site”); Illinois v. State Oil Co., PCB 97-103, Order, April 4, 2002, at 12-16 (contaminants already in the ground at the time the current owners/operators took control of the site gave rise to liability under § 12(a) because those contaminants caused water pollution during the ownership and control period of the current owners); Meadowlark Farms, 17 Ill. App. 3d at 860-61, 308 N.E.2d at 836-37.
	Board precedent is also clear that a party with control over the premises or source of pollution cannot avoid liability unless that party has taken “extensive precautions” to prevent the pollution. See, e.g., Gonzalez, 960 N.E.2d at 779; Perkinson, 187 Ill. App. 3d at 694-95. When a party is aware of a source of contamination on its property but does not remove that source, it has not taken sufficient precautions to prevent pollution. Gonzalez, 960 N.E. 2d at 779 (Petitioners violated the Act when they “were aware of the preexisting fly-dumped waste at the time of the purchase but failed to remove it for over 14 months”). When a material that is likely to leach is present, and the party controlling the source of pollution fails to install liners to retain leachate or monitoring wells “built to track” contamination, the party has not taken sufficient precautions to avoid liability under § 12(a) of the Act. Wasteland, Inc. v. Pollution Control Bd., 118 Ill. App. 3d 1041, 1049 (Ill. App. 3^rd 1983) (upholding the Board’s holding that § 12(a) of the Act was violated in light of “the presence of unpermitted material, likely to create leachate problems, and the lack of natural or required safeguards against water pollution…”).
	Notably, a party may be liable for contamination even if another source is partially responsible for that contamination. 415 ILCS 5/12(a); Inverse Investments, PCB 11-79, 2012 Ill. Env. Lexis 92, at 27 (“The People have alleged that Inverse is the owner of a Site containing contamination that is migrating offsite and polluting groundwater. That others might also be liable does not defeat the People’s allegations in this complaint.”). Liability is likewise not defeated if the party did not “intend” to cause, threaten or allow the pollution. The party’s intent, or lack thereof, has no bearing on liability. People v.* Fiorini, 143 Ill. 2d 318, 346, 574 N.E.2d 612, 623 (1991) (“[I]ntent is not an element to be proven for a violation under Illinois Environmental Protection Act.”).
In this case, MWG allowed the discharge of water pollution in violation of Section 12(a) because it has control over the plant sites and failed to take extensive precautions to prevent groundwater pollution from the coal ash in Historic Ash Areas. See, e.g., A.J. Davinroy Contractors, 249 Ill. App. 3d at 794. First, MWG has control over the premises where the pollution occurred. MWG owns Will County and Waukegan and operates the Powerton and Joliet plants. Supra SOF ¶ 1. MWG’s ownership of Will County and Waukegan and operation of the Powerton and Joliet sites suffices to establish that MWG had control over the premises where pollution occurred at all four plants. See People v. State Oil Co., PCB No. 97-103, 2003 Ill. Env. Lexis at 56; Meadowlark Farms, 17 Ill. App. 3d at 860-61; Freeman Coal Mining Corp.*, 21 Ill. App. 3d at 163.
Second, MWG failed to take anything close to “extensive precautions” to prevent the groundwater contamination at Waukegan, Will County, Joliet 29 and Powerton. The facts show that, by means of Environmental Site Assessments completed in 1998 at all four plants, MWG was aware of coal ash located in Historic Ash Areas at each plant. Supra SOF ¶¶ 4, 5, 7, 10, 61, 74, 88, 100. MWG received additional information about coal ash located in Historic Ash Areas at the plants in 2005, and again when it began installing monitoring wells at the plants beginning in 2010. Supra SOF ¶¶ 62, 64, 76, 86, 90, 101, 103. Even though the leachability of coal ash, including coal ash that has existed since before 1998, is undisputed, supra SOF ¶ 23, and liquids - including precipitation and groundwater - are coming in contact with the Historic Coal Ash, MWG neither installed an impermeable cap over the Historic Ash Areas, nor removed the ash, nor placed any liners underneath it. Supra SOF ¶¶ 68 – 73, 78, 82 – 87, 93 – 97, 99, 106 – 120.
	Moreover, for most of the Historic Ash Areas, MWG never installed groundwater monitoring wells for the purpose of investigating whether the coal ash in those areas had leached into groundwater. Supra SOF ¶¶ 66, 79 – 80, 91 – 92, 105. Where MWG did install groundwater monitoring wells near Historic Ash Areas, such as MWs 5, 6, 7, 8 and 9 near the Former Slag/Fly Ash Storage Area at Waukegan, or MWs 2, 5, and 10 near the Former Ash Pond at Powerton, or MWs 9 and 11 through 15 in areas of ash fill at Powerton, and those wells showed groundwater contaminated with coal ash indicators, Supra SOF ¶¶, MWG still did not take any action to contain or remove that ash. In short, MWG has long been on notice of the ash in Historic Ash Areas at Waukegan, Will County, Joliet 29 and Powerton, and – even though its own expert, John Seymour, readily admits that historic ash at those plants has leached into groundwater – MWG has nevertheless failed to take extensive precautions to stop that contamination from continuing. Supra SOF ¶¶ 4, 5, 7, 10, 57 – 62, 64, 66, 68 – 74, 76, 78 – 80, 82 – 88, 90 – 97, 99 – 101, 103, 105 – 120. By failing to take those precautions to prevent contamination, MWG has allowed the discharge of contaminants into the groundwater. See Gonzalez, 960 N.E. 2d at 779.


b.	The Contaminants Discharged Into the Groundwater Caused, and Continue to Cause, Water Pollution in Illinois.

	The contaminants that MWG allowed to enter the groundwater caused, and continue to cause, water pollution. Under § 12(a), once the Board determines that a party “cause[d], threaten[ed] or allow[ed] the discharge of any contaminants into the environment,” the Board must then determine whether that discharge “cause[d] or tend[ed] to cause water pollution in Illinois, either alone or in combination with matter from other sources….” The Act defines “water pollution” as:
such alteration of the physical, thermal, chemical, biological or radioactive properties of any waters of the State, or such discharge of any contaminant into any waters of the State, as will or is likely to… render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate uses, or to livestock, wild animals, birds, fish, or other aquatic life.

415 ILCS § 5/3.545. “Waters,” in turn, is defined as “all accumulations of water, surface and underground, natural, and artificial, public and private, or parts thereof, which are wholly or partially within, flow through, or border upon this State.” § 415 ILCS 5/3.550 (emphasis added). Waters of the state includes water in wells. Tri-County Landfill Co., 41 Ill. App. 3d at 253-54, People ex rel. Ryan, 288 Ill. App. 3d at 321-22.
	The Board has made clear that water pollution exists when contaminants are present in excess of the groundwater quality standards adopted by the Board. See Int’l Union v. Caterpillar, PCB No. 94-240, 1996 Ill. Env. Lexis 579, at 88-89 (PCB Aug. 1, 1996) (finding violation of § 12(a) of the Act and holding that “exceedences of the Part 620 standards… constitutes degradation of one of the State’s water resources and indicates the presence of water pollution…”); Inverse Investments, PCB 11-79, 2012 Ill. Env. Lexis 92, at 2, 25-26 (denying motion to dismiss when defendants alleged to have caused or allowed migration of contaminants into the groundwater causing violations of Class I groundwater standards, which “created, or threatened to create a nuisance and rendered the groundwater harmful to human health and the environment”); see also* People v. Hicks Oil & Hicks Gas, Inc, PCB No. 10-12, 2009 Ill. Env. Lexis 308, 1-2 (Aug. 6, 2009) (accepting complaint for hearing when People allege that respondent violated § 12(a) of the Act “by causing or allowing the discharge of contaminants to groundwater so as to exceed the Board's Groundwater Quality Standards for a Class I resource groundwater, and to thereby render such water harmful or detrimental or injurious to public health, safety or welfare…”) (emphasis added).
	The same principle – that groundwater contamination in excess of the Board’s Class I standards constitutes water pollution – holds true even when those standards are not in effect, as is the case when a Groundwater Management Zone (“GMZ”) has been approved for a site for a given pollutant. See 35 Ill. Adm. Code §§ 620.250(e), 740.530 (d) As noted above, water pollution is present when a discharge of any contaminant into the groundwater “will or is likely to…render such waters harmful or detrimental or injurious to public health, safety or welfare….” 415 ILCS § 5/3.545. When the Board adopted the groundwater quality standards in 1991, it noted that the Class I: Potable Resource Groundwater quality standards were being set at levels “equal to the USEPA’s Maximum Concentration Levels,” which are health-based standards intended to be protective of human health, Safe Drinking Water Act § 1412(b)(4)(A)-(B), 42 USC § 300g-1(b)(4)(A)-(B), and were intended to fulfill “the principle that groundwaters that are naturally potable should be available for drinking water supply without treatment.” IPCB R89-14(B), Nov. 7, 1991, Final Order at 18.
	Regardless of whether the standards are in effect, contamination in excess of those standards leaves the affected groundwater “harmful or detrimental or injurious to public health, safety or welfare” under § 415 ILCS 5/3.545. In short, when standards are set to prevent harm to health, it stands to reason that exceedances of those standards in a water body constitute water pollution, even if the standards are not in effect. The Board effectively held as much in its 2003 decision in People v. Texaco Refining and Marketing, Inc. In that case, as an affirmative defense to the People’s allegations that it violated § 12(a) of the Act, Texaco asserted that it had complied with the Board’s regulatory provisions, including by entering into a GMZ. PCB No. 02-03, 2003 Ill. Env. Lexis 665 at 21 (PCB Nov. 6, 2003). The Board granted the People’s motion to strike that affirmative defense, explaining that “Section 12(a) of the Act provides no exemption from liability for parties that comply with another regulatory program.” Id. at 22. Other Board cases similarly support the principle that contamination in excess of health-based standards constitutes water pollution. See Caterpillar, PCB No. 94-240, 1996 Ill. Env. Lexis 579 at 88-89 (finding that “exceedances of the Part 620 standards… constitutes degradation of one of the State’s water resources and indicates the presence of water pollution caused by respondent”); People v. CSX Transp., Inc., PCB No. 07-16, 2007 Ill. Env. Lexis 296, 44-45 (PCB July 12, 2007) (finding § 12(a) violation based on violations of Tiered Approach to Corrective Action Objectives, when rulemaking establishing those Objectives made clear that “exposure above the remediation objective levels would be hazardous to human health”).
	The premise that exceedances of the Board’s groundwater quality standards constitute water pollution, regardless of whether those standards are in effect, is also mandated by the Illinois Supreme Court’s decision in Central Illinois Public Service Co. v. Pollution Control Board, 116 Ill. 2d 397, 409-10 (1987) (“CIPSCO”). In that case, respondent sought site-specific groundwater standards for its Hutsonville power plant and acknowledged that the standards it requested would have “deleterious effects,” including discomfort to humans if the water were drunk. Id. at 408. The Board denied CIPSCO’s request, reasoning that, because the Act treats water as a resource, water pollution is present not only when actual harm has occurred or will occur, but rather whenever “harm would occur if the contaminated water were to be used.” Id. at 409 (emphasis in original). The Illinois Supreme Court upheld the Board’s decision, explicitly agreeing with the Board’s interpretation that “any contamination which prevents the State’s water resources from being usable … constitute[s] pollution,” id. at 409-10.
	In this case, there is no question that contaminants were present in excess of the Board’s Class I groundwater quality standards over a thousand times in total at Powerton, Waukegan, Will County and Joliet 29, with exceedances in almost every groundwater monitoring well at each of the four plant sites. Supra SOF ¶¶ 53-56; Exs. A9 – A13, B10 – B12, C9 – C11, D16 – D18. In many cases, the same constituents exceeded Class I groundwater standards in the same wells during every quarterly monitoring event for years. See, e.g., Ex. B13, 2015 Will County Annual Report at Bates MWG13-15_56538 (showing boron in excess of Class I standards in every quarter since Oct. 28, 2013, in Will County MW-3); Ex. A12, 2015 Waukegan Annual Report, at Bates MWG13-15_56448 (showing boron in excess of Class I standards in every quarter since Nov. 5, 2013, in Waukegan MW-5); and Ex. D18, 2015 Powerton Annual Report, at Bates MWG13-15_56219 (showing manganese in excess of Class I standards in every quarter since Oct. 23, 2013, in Powerton MW-10).
	There is likewise no question that Historic Coal Ash at each site is a source of coal ash contaminants. Supra SOF ¶¶ 57 – 60; Ex. E5, Seymour Depo Tr. at 38:2-13, 46:11 - 48:20, 53:13 – 55:3, and 58:13 – 59: 13; Ex. M, Frendt 2012 Waukegan ash pond summaries at Bates MWG13-15_14167 (stating that “the elevated concentrations of compounds of interest in MW-5 appear to be the result of the well being installed in a former ash disposal area….”); Ex. D19, Patrick 2013 letter to IEPA, Bates MWG13-15_9644-9645 (noting that monitoring wells installed in 2010 are potentially affected by past ash management practices and fall “within an area of impacted groundwater from historical ash-related handling activities.”). Indeed, boron, which MWG expert Seymour admits is a “good” coal ash indicator, Supra SOF ¶ 36, appears in every monitoring well at all four plants in this litigation, and boron concentrations exceeded Class 1 standards at all four plants. Supra SOF ¶¶ 53-56.
	The groundwater quality monitoring reports signed and submitted to IEPA by MWG personnel, together with Mr. Seymour’s admissions, the Frendt 2012 Waukegan ash pond summaries and the Patrick 2013 letter to IEPA, leave no doubt that the coal ash contaminants that MWG has allowed to leach continuously into the groundwater have caused, and continue to cause, water pollution at the four MWG plant sites.⁷ Accordingly, in over one thousand instances, ⁸ MWG has allowed the discharge of contaminants into the groundwater “so as to cause or tend to cause water pollution in Illinois,” in violation of § 12(a) of the Act.
II.	MWG Violated the Act’s Implementing Regulations by Causing Exceedances of the Class I Groundwater Quality Standards Set Forth at Ill. Admin. Code Section 620.410 at the Four Plants.

	By exceeding § 12(a) of the Act at the four plants and allowing exceedances of the groundwater quality standards set forth at 35 Ill. Admin. Code 620.210, MWG has also violated several Board regulations concerning the protection of groundwater, namely, 35 Ill. Admin. Code §§ 620.115, 620.301(a), and 620.405. The number of violations varies by regulatory provision. Specifically, a GMZ likely provides a defense to liability under sections 620.301(a) and 620.405 of the Illinois Administrative Code. See Texaco Refining and Marketing, Inc., PCB No. 02-03, 2003 Ill. Env. Lexis 665 at 22-24 (declining to strike defendant’s affirmative defense that it was not liable for violation of Section 620.405 of the Illinois Admin Code due to a GMZ, and stating that “Compliance with a permitted GMZ would provide Texaco immunity from violating the Part 620 standards”). Thus, violations of Sections 620.301(a) and 620.405 are limited to the exceedances at Waukegan, where no GMZ was put into place, and exceedances at Will County, Joliet 29 and Powerton that took place prior to approval of the GMZs at those plants. Id. In contrast, Section 620.115 is violated when the Act is violated, and therefore a GMZ does not function as a defense to liability under that provision. See id. at 21-22.
	Section 620.115 of the Illinois Administrative Code provides that: “No person shall cause, threaten or allow a violation of the Act, the [Illinois Groundwater Protection Act] or regulations adopted by the Board thereunder, including but not limited to this part.” 35 Ill. Admin. Code § 620.115 For the reasons explained herein, MWG has violated the Act as well as groundwater protection regulations adopted by the Board, and therefore has violated 35 Ill. Admin. Code § 620.115.
	Section 620.301(a) of the Illinois Administrative Code provides that “No person shall cause, threaten or allow the release of any contaminant to a resource groundwater such that 1) Treatment or additional treatment is necessary to continue an existing use or to assure a potential use of such groundwater; or 2) An existing or potential use of such groundwater is precluded.” 35 Ill. Admin. Code § 620.301(a). Groundwater at all four plants was “resource” groundwater for at least a portion of the period of the violations alleged in the Second Amended Complaint. Specifically, groundwater at Powerton was classified as Class I groundwater until Oct.3, 2013, when IEPA approved the GMZ for that site. Supra SOF ¶¶ 43, 48. Groundwater at Will County was classified as Class I groundwater until July 2, 2013, when IEPA approved the GMZ for that site. Supra SOF ¶¶ 43, 46. Groundwater at Joliet 29 was classified as Class I groundwater until August 8, 2013, when IEPA approved the GMZ for that site. Supra SOF ¶¶ 43, 47. Finally, groundwater at Waukegan was classified as Class I groundwater throughout the entire period of the violations alleged in the Second Amended Complaint, and continues to be classified as Class I groundwater. Supra SOF ¶ 45.
	During the time periods in which the groundwater at those plants was classified as Class I groundwater, the Class I groundwater quality standards were exceeded on hundreds of instances at Powerton, on hundreds of instances at Will County, on more than a hundred instances at Joliet 29, and on more than a hundred instances at Waukegan. Supra SOF ¶¶ 53 – 56. As MWG admits, historic ash at all four plants caused or contributed to those exceedances. Supra SOF ¶¶ 57-60; Ex. E5, Seymour Dep., e.g., 48:3-6 (“Q: Do you allege that the contamination in the groundwater at Powerton is resulting from historical uses at the site? A. Yes.”) and 46:17-18 (admitting that “the inorganics that are in the groundwater are characteristic of coal ash materials….”). When those exceedances occurred, a potential use of that resource groundwater – i.e., as drinking water – was precluded. See CIPSCO, 116 Ill. 2d at 409-10. As such, MWG violated 35 Ill. Admin. Code § 620.301(a) on hundreds of occasions collectively at all four plants.
	Finally, Section 620.405 of the Illinois Administrative Code provides that “No person shall cause, threaten or allow the release of any contaminant to groundwater so as to cause a groundwater quality standard set forth in this Subpart to be exceeded.” 35 Ill. Admin. Code § 620.405. As discussed herein, MWG allowed the release of contaminants to the groundwater so as to cause hundreds of exceedances of the groundwater quality standards collectively at all four plants. Accordingly, MWG violated 35 Ill. Admin. Code § 620.405 on hundreds of occasions. Id.
III.	MWG Violated the Open Dumping Prohibitions Set Forth in Section 21(a) of the Act at Powerton, Waukegan and Will County.

	In addition to contravening the Act’s prohibitions on water pollution, MWG also violated, and continues to violate, the open dumping prohibitions set forth in the Act at its Powerton, Waukegan and Will County coal plants. The Act provides that “[n]o person shall cause or allow the open dumping of any waste,” 415 ILCS 5/21(a), and defines “open dumping” as “the consolidation of refuse from one or more sources at a disposal site that does not fulfill the requirements of a sanitary landfill.” 415 ILCS 5/3.305. Here, MWG has allowed ash in Historic Ash Areas at Powerton, Waukegan and Will County to contaminate the groundwater at those sites. Accordingly, as further explained below, MWG has violated Section 21(a) of the Act by allowing open dumping at those sites.
a.	Open Dumping Has Taken Place at Powerton, Will County and Waukegan In Violation of Section 21(a) of the Act.

	Coal ash in Historic Ash Areas at Powerton, Waukegan and Will County is “refuse” for the purposes of 415 ILCS 5/3.305. As noted above, “open dumping” is “the consolidation of refuse from one or more sources at a disposal site that does not fulfill the requirements of a sanitary landfill.” 415 ILCS 5/3.305. “Refuse” is defined as “waste.” 415 ILCS 5/3.385. “Waste” is defined in relevant part as “any garbage… or other discarded material, including solid, liquid, semi-solid… material resulting from industrial, commercial… operations.…” 415 ILCS 5/3.535. Coal ash in Historic Ash Areas at Powerton, Waukegan and Will County is “waste” because it is a discarded material resulting from an industrial operation – the burning of coal to generate electricity. Supra SOF ¶¶ 3, 58, 60; 415 ILCS 5/3.535 and 3.385. Indeed, the Act specifically identifies coal ash as “coal combustion waste.” 415 ILCS 5/3.140 (defining “coal combustion waste” as “any fly ash, bottom ash, slag, or flue gas or fluid bed boiler desulfurization by-products generated as a result of the combustion of: (1) coal, or (2) coal in combination with…other fossil fuel….”). Accordingly, historic coal ash in Historic Ash Areas at Powerton, Waukegan and Will County constitutes refuse which, pursuant to 415 ILCS 5/3.3.5, may not be left at a disposal site not meeting the requirements of a sanitary landfill.⁹
The Historic Ash Areas at Powerton, Waukegan and Will County are “disposal site[s].” Under the Act, a “waste disposal site” is a “site on which solid waste is disposed,” 415 ILCS 5/3.540, and “disposal” means “the discharge, deposit, injection, dumping, spilling, leaking or placing of any waste or hazardous waste into or on any land or water or into any well so that such waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 415 ILCS 5/3.185 (emphasis added). As the Board explained earlier in the present case, “an area on which waste is deposited can be a ‘disposal site’ if the waste deposition is conducted in a manner that allows waste material to enter the environment, including groundwater.” Sierra Club et al v. Midwest Generation, LLC, PCB No. 2013-015, 2013 Ill. Env. Lexis 294, at 78 (Oct. 3, 2013). Here, coal ash is located in Historic Ash Areas at Powerton, Waukegan and Will County without any cap above, or liner below, that would have prevented rain, snow, groundwater or other liquid from draining through that ash into the groundwater. Supra* SOF ¶¶ 68-70, 78, 82, 93-98, 106-110. Coal ash is not impermeable: water can migrate through it, leaching coal ash constituents, Supra SOF ¶ 23, and – as MWG expert Seymour acknowledged – did so at each of these sites. In Seymour’s words, “[t]he inorganics that are in the groundwater are characteristic of coal ash materials….,” Ex. E5, Seymour Depo Tr. at 48:17-18. Because the coal ash at issue here was placed on the land at the MWG plants in a manner that allowed constituents of that waste, including but not limited to boron, sulfate and manganese, to leach into groundwater, Supra SOF ¶ 67, the Historic Ash Areas in which that coal ash was placed are “disposal sites” under the Act.
Finally, the Historic Ash Areas at Powerton, Waukegan and Will County do not “fulfill the requirements of a sanitary landfill.” The Act defines “sanitary landfills” as “facilit[ies] permitted by the Agency for the disposal of waste on land meeting the requirements of the Resource Conservation and Recovery Act [42 USCA § 6901 et seq.] and regulations thereunder….” 415 ILCS 5/3.445. As an initial matter, there is no evidence that Powerton, Waukegan and Will County ever received a permit from IEPA for the disposal of the coal ash in the Historic Ash Areas. Supra SOF ¶ 13. Without such a permit, they cannot qualify as “sanitary landfills.” 415 ILCS 5/3.445.
	However, even were there evidence of such permitting, the ground areas where the ash was buried at Powerton, Waukegan and Will County cannot qualify as sanitary landfills because they do not “meet the requirements of the Resource Conservation and Recovery Act and regulations thereunder,” which is a necessary component of a sanitary landfill as defined at 415 ILCS 5/3.445. The Resource Conservation and Recovery Act (“RCRA”)’s implementing regulations set forth specific criteria to distinguish between sanitary landfills and prohibited open dumps. These regulations are found at 40 CFR Part 257. During the period in which the violations alleged in the Second Amended Complaint took place, the applicable regulations were those set forth at 40 CFR Part 257, Subpart A.¹⁰ Under 40 CFR § 257.1(a)(1), “[f]acilities ¹¹ failing to satisfy any of the criteria in §§ 257.1 through 257.4 or §§ 257.5 through 257.30 or §§ 257.50 through 257.107 are considered [prohibited] open dumps….” (emphasis added).
	None of the Historic Ash Areas at issue in this case satisfy the criterion laid out in 40 CFR § 257.3-4, which provides that sanitary landfills cannot cause “contaminat[ion of] an underground drinking water source beyond the solid waste boundary or beyond an alternative compliance boundary.” “Solid waste boundary” means “the outermost perimeter of the solid waste (projected in the horizontal plane) as it would exist at completion of the disposal activity.” 40 C.F.R. § 257.3-4(c)(5). Any alternative boundary would be established by the state or the courts after finding that establishing such a boundary will not result in the contamination of groundwater that may be used for drinking. 40 C.F.R. § 257.3-4.
	Groundwater contamination for purposes of RCRA open dumping is demonstrated by an exceedance of one of the Maximum Contaminant Levels (MCLs) set forth in 40 CFR pt. 257 Appendix I (hereinafter “Appendix I MCLs”), in either an actual drinking water source, or in an aquifer with less than 10,000 mg/L total dissolved solids. 40 CFR § 257.3-4. The Appendix I MCLs for the pollutants identified in the complaint are as follows:

Chemical	Appendix I MCL (40 C.F.R. Pt. 257, App. I)
Arsenic	0.05 mg/L
Mercury	0.002 mg/L
Nitrate	10 mg/L
Selenium	0.01 mg/L