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Section 301.109 has two subsections. Subsection (a) imposes four informational

requirements on the Agency. First, the Agency recommendation must address each of the

items required to be set forth in a provisional variance application under the Agency’s rules (35

Ill. Adm. Code 180.202(b)). Section 180.202(b) of the Agency’s rules requires applicants

before the Agency to, for example: (1) provide information on the nature of the discharge; (2)

assess any adverse environmental impacts that the provisional variance may produce; (3)

explain why compliance would impose an arbitrary or unreasonable hardship; and (4) discuss

alternate methods to comply and the factors influencing the choice to apply for a provisional

variance. Second, the Agency recommendation must identify the extent to which, if at all, the

arbitrary or unreasonable hardship results from “weather and operational conditions.” Third,

the Agency recommendation must explain why any such weather and operational conditions

“were not reasonably foreseeable based on historical weather patterns and predictable

operational conditions.” Finally, the Agency recommendation must list any provisional

variances issued to the person within the preceding five years with respect to any water

temperature standard.

Subsection (b) of Section 301.109 addresses the conditions that the Agency

recommends the Board place on granting the provisional variance. First, under subsection

(b)(1), the Agency recommendation must provide the Agency’s rationale for any condition it

recommends. Second, under subsection (b)(2), the Agency recommendation must either

include each of five conditions specified in the rules or explain why the Agency does not

include the condition.

The five conditions set forth in subsection (b)(2) would require: (1) monitoring intake,

discharge, and receiving water temperatures and inspecting for mortalities to aquatic life; (2)

documenting environmental conditions and reporting them to the Agency and the Department

of Natural Resources; (3) implementing biological activities to characterize how aquatic life

responds to the thermal conditions resulting from the provisional variance; (4) immediately

notifying the Agency and the Department of Natural Resources of any unusual conditions,

including mortalities to aquatic life, and immediately taking action to remedy the problem; and

(5) developing and implementing a response and recovery plan to address any adverse

environmental impact due to thermal conditions resulting from the provisional variance,

including loss and damage to aquatic life. The Agency states that specifying these five

conditions in the rules will provide “guidance for the regulated community regarding the

minimum appropriate conditions to be included in thermal provisional variances to ensure that

no environmental harm will result from the provisional variance from the thermal limits.”

Statement at 2.

Agency’s Reasons for the Proposal

The Agency states that the proposal is needed to codify the Agency’s “knowledge and

experience that comes with 20 years of considering requests for provisional variances.”

Statement at 5. The Agency explains the history of provisional variances from water

temperature standards to highlight the importance of the proposed rules:

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The combination of a severe drought and extremely hot weather, low river

flows, elevated ambient river temperatures and decreased heat dissipation have

created several emergency situations where power companies have been unable

to meet their NPDES permit conditions for the thermal component of their

discharges and also meet their obligations to supply reliable power to their

customers. Since 1988, the [Agency] has received 23 formal requests for

provisional variances from water temperature standards . . . [and] recommended

the granting of provisional variances (subject to certain conditions) for 20 of

these requests. ***

The most recent emergency conditions which resulted in provisional variance

requests from thermal standards occurred in the summer of 1999, when four

provisional variances and one extension were granted for relief from thermal

requirements. *** Commonwealth Edison Company, Dresden Station, used

one 45-day provisional variance plus an extension for an additional 45 days and

[another provisional variance] was used by CIPS, Newton Station. *** [T]he

Dresden Station had thermal provisional variance needs in 1988, 1992, 1994,

1996, 1997 and 1998. This history was evidence of an apparent need for

additional cooling capacity at Dresden Station. *** In addition to taking

advantage of the provisional variance, the Newton Station suffered major

operational problems because of the prolonged hot period and apparently

exceeded maximum discharge levels causing an extensive fish kill in the cooling

lake. This incident further supported the apparent need for additional cooling

capacity at Newton Station.

After the emergency conditions of the summer of 1999 had subsided, the

[Agency] notified the power companies (Commonwealth Edison and Ameren-

CIPS) of the need to develop more proactive plans to avoid the reoccurrence of

violations and the need for variances. Both of these companies have

subsequently installed additional cooling systems to reduce the possibility of

permit violations. *** It is expected that these cooling systems will sustain full

compliance under extreme weather conditions; however, it is possible that

unusual combinations of heat and drought may still create a situation where

relief from current permit conditions may be needed in order to prevent a

serious failure of the power grid. Therefore, the conditions described above

have been proposed in Section 301.109(b)(2) in an effort to further clarify and

provide up-front documentation to any future petitioner on the requirements for

a provisional variance from any water temperature standard. Statement at 5-7.

Accordingly, the Agency believes that the proposed rules will help to: (1) clarify the

types of information that the Agency is to consider when recommending that the Board grant a

provisional variance from a water temperature standard; and (2) ensure that when the relief is

granted, it is subject to appropriate conditions to protect the environment. Statement at 2, 7.

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How the Board Will Proceed

The Board accepts the Agency’s proposal for hearing. Pursuant to Section 28 of the

Act (415 ILCS 5/28 (1998)), the Board will hold at least two public hearings during this

rulemaking. The Board would like to receive public comments on the Agency’s proposal

before hearing. The Board expects to hold hearings in June 2001. The Board directs the

hearing officer assigned to this matter to schedule public hearings and public comment periods.

The Board notes that hearing transcripts, hearing officer orders, and the Board’s opinions and

orders in this rulemaking, including this order, will be available on the Board’s Web site. The

Board also will place the Agency’s Statement and its proposed rule language on the Board’s

Web site.

AGENCY’S PROPOSED RULE LANGUAGE

To facilitate public comment before hearing, the Board sets forth below the Agency’s

proposed amendments to 35 Ill. Adm. Code 301. The proposed additions are underlined.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE C: WATER POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 301

INTRODUCTION

Section

301.101 Authority

301.102 Policy

301.103 Repeals

301.104 Analytical Testing

301.105 References to Other Sections

301.106 Incorporations by Reference

301.107 Severability

301.108

301.109

Adjusted Standards

Provisional Variances from Water Temperature Standards

301.200 Definitions

301.205 Act

301.210 Administrator

301.215 Agency

301.220 Aquatic Life

301.221 Area of Concern

301.225 Artificial Cooling Lake

301.230 Basin

301.231 Bioaccumulative Chemicals of Concern

301.235 Board

301.240 CWA

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301.245 Calumet River System

301.250 Chicago River System

301.255 Combined Sewer

301.260 Combined Sewer Service Area

301.265 Construction

301.270 Dilution Ratio

301.275 Effluent

301.280 Hearing Board

301.285 Industrial Wastes

301.290 Institute

301.295 Interstate Waters

301.300 Intrastate Waters

301.301 Lake Michigan Lakewide Management Plan

301.305 Land Runoff

301.310 Marine Toilet

301.311 Method Detection Level

301.312 Minimum Level

301.315 Modification

301.320 New Source

301.325 NPDES

301.330 Other Wastes

301.331 Outlier

301.335 Person

301.340 Pollutant

301.341 Pollutant Minimization Program

301.345 Population Equivalent

301.346 Preliminary Effluent Limitation

301.350 Pretreatment Works

301.355 Primary Contact

301.356 Projected Effluent Quality

301.360 Public and Food Processing Water Supply

301.365 Publicly Owned Treatment Works

301.370 Publicly Regulated Treatment Works

301.371 Quantification Level

301.372 Reasonable Potential Analysis

301.373 Same Body of Water

301.375 Sanitary Sewer

301.380 Secondary Contact

301.385 Sewage

301.390 Sewer

301.395 Sludge

301.400 Standard of Performance

301.405 STORET

301.410 Storm Sewer

301.411 Total Maximum Daily Load

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301.415 Treatment Works

301.420 Underground Waters

301.421 Wasteload Allocation

301.425 Wastewater

301.430 Wastewater Source

301.435 Watercraft

301.440 Waters

301.441 Water Quality Based Effluent Limitation

301.442 Wet Weather Point Source

301.443 Whole Effluent Toxicity

APPENDIX References to Previous Rules

AUTHORITY: Implementing Section 13 and authorized by Section 27 of the Environmental

Protection Act [415 ILCS 5/13 and 27].

SOURCE: Filed with the Secretary of State January 1, 1978; amended at 3 Ill. Reg. 25, p.

190, effective June 21, 1979; amended at 5 Ill. Reg. 6384, effective May 28, 1981; codified

at 6 Ill. Reg. 7818; amended in R88-1 at 13 Ill. Reg. 5984, effective April 18, 1989;

amended in R88-21(A) at 14 Ill. Reg. 2879, effective February 13, 1990; amended in R99-8

at 23 Ill. Reg. 11277, effective August 26, 1999, amended in R01-__ at __ Ill. Reg.

__________, effective __________.

Note: Capitalization denotes statutory language.

Section 301.109 Provisional Variances from Water Temperature Standards

a) An Agency recommendation to the Board under 415 ILCS 5/35(b) regarding a

request for a provisional variance from any water temperature standard set forth

in 35 Ill. Adm. Code 302.211 or 303 or any other rule, permit, or Board order

must specifically address each of the contents required of any application for a

provisional variance under 35 Ill. Adm. Code 180.202(b). The Agency

recommendation must:

1) Identify the extent to which the arbitrary or unreasonable hardship

results from weather and operational conditions;

2) Explain why the conditions in subsection (a)(1) of this Section were not

reasonably foreseeable based on historical weather patterns and

predictable operational conditions; and

3) List any provisional variances that the Board issued to the petitioner

within the preceding five calendar years with respect to any water

temperature standard.

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b) The Agency in its recommendation described in subsection (a) of this Section

must:

1) Specifically address the Agency’s rationale for recommending conditions

on the provisional variance; and

2) Impose or explain why it does not impose the following conditions upon

the provisional variance:

A) Requiring the petitioner to continuously monitor intake, discharge

and receiving water temperatures and to visually inspect intake

and discharge areas at least three times daily to assess any

mortalities to aquatic life;

B) Requiring the petitioner to document environmental conditions

during the term of the provisional variance, including the

activities described in subsection (b)(2)(A) of this Section, and to

submit the documentation to the Agency and the Department of

Natural Resources within 30 days after the provisional variance

expires;

C) Requiring the petitioner to immediately implement biological

activities to characterize how aquatic life respond to the thermal

conditions resulting from the provisional variance; to document

these activities; and to submit the documentation to the Agency

and the Department of Natural Resources within 30 days after the

provisional variance expires;

D) Requiring the petitioner to immediately notify the Agency and the

Department of Natural Resources of any unusual conditions,

including mortalities to aquatic life; to immediately take action to

remedy the problem; to investigate and document the cause and

seriousness of the unusual conditions while providing updates to

the Agency and the Department of Natural Resources as changes

occur until normal conditions return; to notify the Agency and the

Department of Natural Resources when normal conditions return;

and to submit the documentation to the Agency and the

Department of Natural Resources within 30 days after normal

conditions return; and

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E) Requiring the petitioner to develop and implement a response and

recovery plan to address any adverse environmental impact due to

thermal conditions resulting from the provisional variance,

including loss and damage to aquatic life.

(Source: Added at __ Ill. Reg. __________, effective __________.)

CONCLUSION

The Agency has proposed that the Board amend 35 Ill. Adm. Code 301 to address

Agency recommendations on provisional variances from water temperature standards. The

Board accepts the Agency’s proposal for hearing. The Board makes no comment on the merits

of the Agency’s proposal at this time.

Before hearings, which the Board expects to hold in June 2001, the Board would like to

receive public comments on the Agency’s proposal. The hearing officer assigned to this

rulemaking will soon issue an order scheduling these matters.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above order was adopted on the 19th day of April 2001 by a vote of 6-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board