RECEIVED

CLERK’S

OFFICE

BEFORE THE

ILLINOIS POLLUTION

CONTROL BOARD

IN THE MATTER OF:

PROVISIONAL VARIANCES FT~OM

WATER TEMPERATURE STANDARDS:

PROPOSED NEW 35111. Adm. Code 301.1 09

)

RO1-31

)

(Rulemaking

—

Water)

)

)

)

)

MI~Y

2 5 2001

STATE

OF ILLINOIS

Poihitlon Control Board

Dorothy M.

Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite. 11-500

Chicago, Illinois 60601

Andrew Boron

Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street, Suite 11-500

Chicago, Illinois

60601

DebbieBruce

Illinois Department of Natural Resources

600

North Grand Avenue West

Springfield, Illinois 62701

SusanFranzetti

Sonneneschein Nath and Rosenthal

8000 Sears Tower

Chicago, Illinois

60606

NOTICE OF FILING

Robert Lawley

Chief Legal Counsel

Illinois

Department ofNatural Resources

524

South Second Street

Springfield, Illinois 62701-1787

William Murray

Regulatory Affairs Manager

Office of Public Utilities

800 East Monroe Street

Springfield, Illinois

62757

Julia Wozniak

Midwest Generation

One Financial Place

440

SouthLaSalle, Suite 3500

Chicago, Illinois 60605

PLEASE TAKE NOTICE

that I have today filedwith the Office of the Clerk ofthe

Pollution Control Board the

Testimony ofKenneth Rogers

of the illinois Environmental

Protection Agency,

a copy ofwhich is herewith served upon you.

ENVIRONMENTAL PROTECTION AGENCY

OF THE STATE

OF I

L

OIS

By~7~J~\Y~

Deborah J.

W iams

Assistant Counsel

Division ofLegal Counsel

DATED: May 22, 2001

Illinois Environmental Protection Agency

1021

North GrandAvenue East

Post Office Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

THIS FILING IS SUBMITTED ON RECYCLED PAPER

---

RECEIVED

CLERK’SOFFWT

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

M~Y

2

5

2001

STATE OF ILLINOIS

Pollution

Control Board

IN

THE MATTER OF:

)

)

RO1-31

PROVISIONAL VARIANCES FROM

)

(Rulemaking-Water)

WATER TEMPERATURE STANDARDS:

)

PROPOSED NEW

35

Iii. Adm. Code 301.109

)

)

TESTIMONY OF KENNETH

ROGERS

QUALIFICATIONS/INTRODUCTION

My name

is Ken

Rogers and

I am currently the manager ofthe

Compliance Assurance Section

in the Bureau of Water at the Illinois

Environmental Protection Agency (“Illinois EPA”).

I have held my current position

at the Illinois EPA since 1984.

Prior to that time,

I served

in the Division of Water

Pollution Control as the Manager ofthe Water Quality Monitoring

Unit from

1979

to 1984 and the Manager of the Pre-Construction Grant Unit from

1974

to 1978.

I have been employed at the Illinois

EPA since 1970.

I received

a Bachelor of

Arts in Biological Science with a Chemistry Minor from

Minot State University

in

North

Dakota and a Master ofArts

in Administration from the University of Illinois

at Springfield.

My duties as Manager of the Compliance Assurance Section include

supervision of development of the technical component of Illinois EPA

recommendations to the Illinois

Pollution Control Board (“Board”)for the grant of

provisional variances from water pollution control regulations or permit

requirements,

including provisional variances from thermal standards.

I have

---

also participated

in the development of the proposed amendment to the Board’s

regulations which

is the subject of this proceeding.

My testimony will address the

Illinois EPA experience with

provisional variances from thermal limits, the need

for the amendments the Agency has proposed, and the purpose and content of

the proposed amendments.

BACKGROUND

In

1980 the Illinois General Assembly amended Title IX of the

Environmental

Protection Act (“Act”)to establish provisional variances as an

additional form of short term

regulatory relief.

(Public Act 81-1442).

Provisional

variances are appropriate where it can be shown that “compliance on a short

term basis with any rule or regulation, requirement or order of the Board, or with

any permit requirement would impose an arbitrary or unreasonable hardship.”

415 ILCS

5135(b)(1

998).

Section 35(b) of the Act also requires that the

Board

grant a provisional variance within two working days from the date of notification

from the Illinois EPA that a provisional variance

is appropriate.

In

order to

facilitate this process, the Illinois

EPA typically times

the filing of its provisional

variance recommendations to coincide with scheduled Board meetings.

Provisional variances are intended to cover short term

hardship situations.

Section 36(c) of the Act provides that a provisional variance can only be granted

for a maximum of 45 days, and no single facility can

be granted provisional

variances which exceed

a duration of 90 days

in any calendar year.

415 ILOS

5/36(c)(1998).

This mechanism differs from the regular variance, which

may be

granted for up to five years, and the adjusted standard or site specific regulation,

2

---

which typically grant permanent regulatory relief.

Because the relief granted by

provisional variances is of such a short duration, no prior public notice or

opportunity for comment or hearing is provided. However,

provisional variances

are only granted by the State of Illinois and do not protect facilities from

U.S. EPA

or citizen enforcement actions.

In 35

Illinois Administrative Code

Part 180, the Illinois

EPA has

established procedural regulations for the provisional

variance application and

recommendation process.

The pending regulatory proposal should

be read with

these regulations in

mind.

Section 180.202(b) of the existing

procedural

regulations establishes the informational requirements currently applicable to all

provisional variance applications.

The relevant informational requirements for

thermal provisional variance applications are:

a statement identifying the

requirement from which the variance is requested; a description of the business

or activity for which the variance

is requested; the quantity and types of materials

used

in that process or activity; the

quantity, types and nature of materials to be

discharged and the identification of the receiving

waterway; an assessment of

any adverse environmental impacts which the variance may produce;

an

explanation ofwhy compliance with the requirement imposes arbitrary and

unreasonable hardship; a description of the proposed methods and a timetable

for achieving compliance;

a discussion of alternate methods of compliance and

the factors influencing the choice to apply for

a

provisional variance; a statement

ofthe

period for which the variance

is requested; a statement ofwhether the

applicant has been granted any provisional variances within the calendar year,

3

---

and the terms and duration of such variances;

a statement regarding the

applicant’scurrent permit status;

and any Board orders in effect regarding the

applicant’sactivities and any matters currently before the Board

in which the

applicant

is a party.

Most provisional variance applications are received by the Illinois EPA in

the form of a letter from the environmental staff at the given facility.

The Bureau

of Water receives approximately 25 provisional variance applications per year.

Part 180 gives the Illinois EPA five days to accept or reject a provisional variance

application and thirty days to make a final determination.

In general, the

Part 180 rules have worked well in clarifying for provisional

variance applicants the documentation required for

a complete application and

the Illinois EPA’sapplication

review process.

However, after 20 years of

considering requests for provisional variances, the Illinois EPA believes that

additional criteria

in

regard to provisional variances from water temperature

standards

is warranted.

In the past, a combination of severe drought and

extremely hot weather, low river flows,

elevated ambient

river temperatures and

decreased heat dissipation have created emergency situations where power

companies have been unable to meet their National Pollutant Discharge

Elimination System

(“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 Illinois EPA has received

23 formal requests for

provisional variances from water temperature standards.

The Illinois

EPA

recommended the granting of provisional variances (subject to certain conditions)

4

---

for 20 of these requests.

Five of the approved requests were for extensions of

previously granted variances.

One thermal provisional variance request was

denied by the Agency and applicants withdrew two others.

In addition, numerous

informal inquiries have been made to the Illinois

EPA

regarding the merits of a

thermal provisional variance under consideration prior to formal submission.

While this proposal could potentially impact any facility subject to a water

temperature

limitation for whom compliance with that limit on a short term basis

would impose an arbitrary and unreasonable hardship,

it

is likely this proposal

will only impact electric utilities thatface the confluence of increased demand for

power production,

low flow rates, and extreme warm weather conditions in

the

summer months.

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.

Two

of

these

provisional

variances

and

the

extension

were

actually

utilized

by

the

petitioners.

Commonwealth

Edison Company, Dresden

Station, used one 45-day provisional variance plus an extension for an additional

45 days and the other was

used by CIPS, Newton Station. The

Dresden Station

permit provides for

a maximum allowable discharge temperature

and a specified

number

of

hours

when

the

discharge

could

exceed

a

long-term average

discharge temperature.

The provisional

variance increased the

number of hours

when

the

long-term average temperature

could

be exceeded.

No relief from

the

maximum

temperature

was provided. The

Dresden Station

submitted thermal

5

---

provisional variance requests

in

1988,

1992, 1994, 1996,

1997 and

1998.

This

history

was

evidence

of

an

apparent

need

for additional

cooling

capacity. at

Dresden

Station.

The

Newton

Station provisional

variance

was

similar

to

Dresden

Station

in that

relief was

provided for increased excursions

above long-

term

thermal

limits

but

no

relief

from

maximum

allowable

thermal discharge

limits.

The Newton facility also suffered major operational problems because of a

prolonged

period

of

hot weather

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.

Following

the

summer

of

1999,

the Illinois

EPA

notified

these

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. Ameren-CIPS

installed

supplemental cooling

ponds at Coffeen Station and

Newton

Station

and

Commonwealth Edison

installed

cooling

towers

in

the

discharge channel

at

Dresden

Station.

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, this regulatory proposal has been developed

in

an

effort

to

further clarify

and provide

up-front documentation

to any

future

6

---

applicant

on

the

requirements

for

a

provisional

variance

from

any

water

temperature standard.

ILLINOIS EPA’SPROPOSAL

The Illinois

EPA has proposed the addition of a new Section 301.109 to

the Board’swater pollution regulations that sets forth

how the Illinois

EPA will

exercise its

provisional variance authority consistent with the Act and the Illinois

EPA’sprocedural regulationswhen evaluating requests for provisional variances

from water temperature standards.

The proposal also provides 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.

This proposed new Section places several

requirements upon the

contents of any Illinois EPA recommendation to the Board for the grant of a

provisional

variance from any water temperature requirement.

The Illinois EPA

recommendation must specifically address each of the informational contents

required of a provisional variance application under Part 180.202(b) of the Illinois

EPA’sprocedural regulations. The lllinoi~ EPA is also required to specifically

address the foreseeability of weather and operational conditions that led to the

provisional variance request and

identify any provisional variances from any

water temperature standard that the Board has issued to the applicant for the

past five years. Typically,

an Illinois

EPA provisional

variance recommendation

would only address whether the applicant had been issued any provisional

variances during the current calendar year.

The Illinois

EPA recommendation

7

---

must also address its

rationale for recommending any specific conditions that

have been imposed

upon the water temperature provisional variance.

Subsection (b)(2) of proposed Section 301.109, lists five specific

conditions that the Illinois EPA will impose upon most provisional variances

granted from

a water temperature requirement.

These conditions are the

requirement to:

(1) continuously monitor intake, discharge, and receiving water

temperature and visually inspect

intake and discharge areas three times daily to

assess any mortalities to aquatic life;

(2) document environmental conditions

during the term of the provisional variance and submit the documentation to the

Illinois

EPA

and the Department of Natural Resources (“DNR”) within30 days

after the provisional variance expires; (3) immediately implement biological

activities to characterize how other aquatic life respond to the thermal conditions

resulting

from the provisional variance; document these activities; and submit the

documentation to the Illinois EPA and DNR within

30 days after the provisional

variance expires; (4) notify the Illinois

EPA and DNR of any unusual conditions,

including mortalities to aquatic life; immediately take action to remedy the

problem; investigate and document the cause and seriousness of the unusual

conditions while providing updates to the Illinois EPA and DNR as changes occur

until normal conditions return; notify the Illinois EPA and

DNR when normal

conditions return; and submit the documentation to the Illinois EPA and DNR

within

30 days after normal conditions return; and (5) 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

8

---

damage to aquatic life.

In many cases, these conditions are currently being

imposed upon provisional variance applicants.

However,

in some cases,

additional temperature, environmental, and biological monitoring, record-keeping,

and reporting will

be required for the term of the provisional variance.

This

proposal

is

not

intended

to place

new

substantive

regulatory

requirements

under

Illinois’ water

pollution

control

regulations

on

facilities;

but

merely to clarify

the

types

of information the Illinois

EPA

should

consider when

recommending

that

the

Board

grant

provisional

variances

from

a

water

temperature regulation or permit limitation. The proposal clarifies the information

provisional

variance

applicants should expect to

submit

to the

Illinois

EPA

in

a

provisional

variance

application and

the

minimum

conditions

that

would

be

imposed

upon grant of such a provisional variance.

This concludes my pre-filed testimony.

I will

be happy to address any

questions during the hearing.

Kenneth Rogers

May21, 2001

Illinois Environmental Protection Agency

1021

North Grand Avenue

East

RO.

Box 19276

Springfield,

Illinois

62794-92.76

9

---

STATE OF ILLINOIS

)

)

)

ss

)

PROOF OF SERVICE

I, the undersigned,

on

oath state that I have served the attached Testimony Of Kenneth Rogers

and

Notice upon the person to whom it is directed, by placing

a copy in an envelope addressed

to:

Dorothy M. Gunn, Clerk

Illinois

Pollution Control Board

James R.

Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois

60601

(OVERNIGHT

MAIL)

Andrew Boron

Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street, Suite

11-500

Chicago, flhinois 60601

(OVERNIGHT

MALL)

Debbie Bruce

flhinois Department of Natural Resources

600 North Grand Avenue West

Springfield, flhinois 62701

(FIRST CLASS MAIL)

Susan Franzefti

Sonneneschein Nath and Rosenthal

8000

Sears Tower

Chicago, Illinois 60606

(FIRST CLASS MAIL)

Robert Lawley

Chief Legal Counsel

flhlnois Department of Natural Resources

524

South Second Street

Springfield, Illinois 62701-1787

(FIRST

CLASS MAIL)

William Murray

Regulatory Affairs Manager

Office of Public Utilities

800 East Monroe Street

Springfield, illinois 62757

(FiRST CLASS MAIL)

Julia Wozniak

Midwest Generation

One Financial Place, 440 South LaSalle, Suite

3500

Chicago, illinois 60605

(FIRST

CLASS MAIL)

and mailing it from Springfield, flhinois on May 22, 2001, with sufficient postage affixed as indicated

above.

77

CVNI~A~

SUBSCRIBED AND SWORN TO BEFORE ME

this

22nd day of May 2001.

~&,QAAA41~

~oOjAjC\~f

Notary Public

BREI4DA BC!~

NOTARY

PUBLIC.

$~A~

OF

iWNO~S

~MYcQMMIS~~oN

EXPIRES

~4.2OOV~

THIS FIUI~G IS SUBMITTED

ON RECYCLED PAPER