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Central Ill. Pub. Serv. Co. v. Poll. Control Bd.

OPINION FILED MARCH 31, 1986.

CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, PETITIONER,

v.

THE POLLUTION CONTROL BOARD, RESPONDENT.



Petition for review of order of Pollution Control Board.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 23, 1986.

Central Illinois Public Service Company (CIPS) filed a petition with the Pollution Control Board (Board) requesting that the Board establish site specific water qualify standards for a body of water at CIPS's Hutsonville Power Station (power station) site. Following a hearing, the Board denied the petition. CIPS has filed a direct appeal to this court. The facts follow.

CIPS owns and operates the power station located in rural Crawford County along the banks of the Wabash River. The power station has been in service since 1940. It consists of two coal-fired units.

An unlined pond was constructed at the power station in 1968. In 1971 the power station was equipped with electrostatic precipitators to remove fly ash from the flue gases. Fly ash and other wastes are sluiced to the pond. Most of the fly ash settles in the pond and the remaining water and fly ash are discharged into the Wabash River.

Because the storage capacity of the pond is rapidly being depleted, CIPS sought other means of storing the fly ash or of disposing of it. CIPS determined that the construction of a new unlined pond at the power station site would be the most cost effective means of disposing of fly ash. After discussing the plan with the Illinois Environmental Protection Agency (Agency) and installing a system of groundwater monitoring wells to monitor the flow and groundwater impact of the existing fly ash pond and the proposed fly ash pond, CIPS filed an application with the agency seeking a permit to construct a new pond. The Agency denied the permit, noting that certain contaminant levels in the existing pond exceeded limits allowed by the Environmental Protection Act (Act) (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1001 et seq.). On review, the Board affirmed the Agency's decision.

In order to obtain relief from water quality standards promulgated by the Board, CIPS filed a petition on December 14, 1984, requesting that the Board establish site specific water quality standards for manganese, boron, total dissolved solids, and sulfates in the groundwater at the power station site. A public hearing was held at which CIPS presented evidence concerning the environmental impact of the proposed site specific water quality standards, the economic feasibility of constructing a new fly ash pond, and the environmental impact and economic feasibility of other alternatives. The following is a brief discussion of the evidence presented at the hearing.

Presently the only use being made of the groundwater and the power station site is the industrial use by CIPS. After the closure of the power station, several factors make the area unlikely to be used for a public water supply or for domestic, commercial, industrial, agricultural, recreational, or other legitimate uses. Also following the closure of the power station (which is expected to be in 20 years), it would take from 25 to 150 years for the environmental impact of the existing pond to dissipate.

Evidence was also presented that high levels of sulfates and boron may cause temporary gastro-intestinal irritation in some persons. Also, high levels of total dissolved solids could create a laxative effect, and high levels of total dissolved solids and boron could cause swelling in some individuals. High levels of sulfate may cause gastro-intestinal problems in livestock and may make water unsuitable for use with crops.

CIPS presented evidence showing that the southerly flow of groundwater from the proposed pond would extend less than 100 feet before turning and joining the general flow into the Wabash River. The construction of the proposed pond would be at least 150 feet from the south border of CIPS's property. CIPS also presented groundwater monitoring data, including data taken from a monitoring well near CIPS's south border.

The total cost of construction of an unlined fly ash pond ranges from almost $2 million to a little over $3.2 million, depending upon where the fly ash is disposed of. Other alternatives would range in cost from nearly $2.2 million to a little over $6.4 million.

The Agency filed a public comment. CIPS and the Agency had done extensive work together studying and preparing the proposed standards. In the public comment, the Agency discussed concerns and proposed solutions. The Agency agreed with CIPS that the higher cost of the alternatives is not justified. After making a few changes or clarifications, the Agency recommended adoption of the proposed standards as modified. CIPS acquiesced in the modifications. CIPS also presented evidence showing that the proposed standards would not violate guidelines set forth by other expert agencies, including the United States Environmental Protection Agency, the Illinois State Water Plan Task Force, and the Illinois Department of Public Health.

Following the hearing, the Board denied CIPS's request for site specific water quality standards.

The Board rejected CIPS's argument that all groundwater in the area is either confined to CIPS's property or flows to the Wabash River. The Board concluded that groundwater monitoring data supplied by CIPS shows that CIPS's property near its south border is contaminated and that groundwater flows from the existing pond past the monitoring well located at the south border. The Board noted that CIPS ...


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