ILLINO
BOARD
~IECEIVED
CLERK’S
OFFICE
P~U(i
092001
N THE MATTER OF:
PROVISIONAL VARIANCES FROM
WATER TEMPERATURE STANDARDS:
PROPOSED NEW 35 Ill.Adm. Code 301.109
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~iti~c.
UF ILLINOIS
Pollution
Control
Board
(Rulemaking
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Water)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the PRE-FILED TESTIMONY OF
JULIA WOZNIAK, MIDWEST
GENERATION EME,
LLC FOR
JUNE 20, 2001
BOARD
HEARING, a copy ofwhich is
herewith served upon you.
See attached Service List.
MIDWEST GENERATION EME,
LLC
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By:_______________________
Susan M. Franzetti
Dated: August 9, 2001
SusanM. Franzetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
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PROVISIONAL VARIANCES FROM
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WATER TEMPERATURE STANDARDS:
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(Rulemaking
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Water)
PROPOSED NEW 35 Ill.Adm. Code 301.109
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PRE-FILED
TESTIMONY OF
JULIA WOZNIAK, MIDWEST GENERATION EME, LLC
FOR JUNE 20.2001 BOARD HEARING
I. INTRODUCTION
My name is Julia Wozniak.
I am here to present testimony on behalfofMidwest
Generation EME, LLC (“MidwestGeneration”).
I am a Senior Biologist employed by Midwest
Generation EME, LLC in Chicago, IL.
I hold a Bachelor ofScience degree in Environmental
Sciences, with a concentration in water/biological quality issues, from the University ofIllinois
at Urbana-Champaign, Illinois.
I have been involved with environmental issues related to the
electric power industry since 1982.
Myprimary responsibility, in working forboth Midwest
Generation,
and fonnerly for Commonwealth Edison Company, has been the development,
coordination and execution of thermo-hydrodynamic modeling ofcomplex powerplant/waterway
interactions, compliance-related field monitoring and biologicallchemical sampling activities.
I
have also actively participated in numerous state and federal rulemakings related to water
matters and which have had the potential to impact our facilities’discharge limitations.
Midwest Generation owns and operates seven fossil-fueled powerplants in Illinois.
Each
plant uses surface water for condensercooling purposes and is therefore subjectto the federal
and state waterpollution rules, as well as certain site-specific requirements,
regarding thermal
discharges. I have been and continue to be responsible forNPDES permitting matters forthe
Midwest Generation generating stations. I have worked closelywith Agency personnel in the
past to determine appropriate requirements for specific provisional variance cases for our
facilities.
None ofMidwest Generation’sfacilities have needed to apply for a thennal
provisional variance in the past five years.
While we havenot needed to use the relief afforded
by a thermal provisional variance in the past several years, we strongly believe that the thermal
provisional variance process is very important to the welfare ofthe public in times ofsevere
weather conditions.
We also believe that this proposed rule is not warranted by past history nor
current regulatory needs. However, if it is determined to proceed with the adoption ofadditional
rules specific to thermal provisional variances, then we wish to identify several areas ofconcern
to us in the proposed rules and I am testifying today to identify and explain those concerns.
As
a short term reliefmechanism, a thermal provisional variance is typically sought
under emergency conditions when extreme ambient environmental conditions dictate that a
balance must be struck between compliance with existing thermal limitations
and a continued
supply ofreliable powerto the citizens ofnorthern Illinois and surrounding states during times of
extremely hot air temperatures.
Such conditions more often than not include the concurrence of
extremely high humidity, low river flows, elevated ambient water temperatures and the increased
demand forreliable power for air conditioning systems to protect human health,
as well as other
necessities ofmodern civilization. These are also situations
during which some facilities’
equipment succumbs to the stresses ofoperating at high loads under extremely taxing physical
conditions.
The loss ofany generation unit during these times
is especially critical, since power
demand must continue to be met by the remaining generating capacity available.
A continuous,
reliable power supply is
also essential during these periods in order to maintain the integrityof
the power grid, thereby preventing widespread brown-outs and black-outs, as well as sustaining
the ability to import power into our area from other sources, if conditions warrant. As power
producers, we have an obligation to
serve our customers, as well as to protect the environment.
Achieving a reasonable balancethat
is acceptable to all is our ultimate goal.
H.
Comments
Concerning the Scope ofApplicability of Proposed
Section 301.109
The Agency’s rule-makingproposal sets forth how the Agency will exercise its
provisional variance authority when evaluatingrequests for provisional variances from water
temperature standards.
The Illinois EPA appears to be providing guidance for the regulated
community regarding the minimum appropriate conditions to be included in thermal provisional
variances to ensure that no environmental harmwill result from the provisional variance from the
thennal limits.
It is, however, also proposing certain additional and significant conditions that
threaten to place an unreasonableburden on the applicant for such a variance.
With respect to the intended scope ofapplicability ofproposed Section 301.109, it is
unclear whetherthis sectionwould apply to both emergency and non-emergency thermal
provisional variance recommendations by the Agency.
Part 180 contains different application
requirements depending upon whetherthe applicantis requesting a non-emergency variance
(Section 180.202) or an emergency variance (Section 180.204).
Emergency variances may be
requested when “emergencycircumstances due to causes such as equipment malfunctions,
extreme weather conditions or other unforeseeable events”occur.
(See section 35 Ill.Adm.Code
180.204).
The procedure for requesting an emergency variance is more streamlinedthan for a
non-emergency variance.
The Agency’sproposed 301.109(a) language references “the contents
required ofany application for a provisional variance under 35 Ill.Adm.Code 180.202(b).”
This
appears to limit the applicability ofproposed section 30 1.109(a) to non-emergency variance
requests, as there is no reference made to section 180.204.
However, as part ofthe
recommendation to the Board that the Agency proposes to require ofitself in this new rule, it has
included the requirement that it “explainwhythe [weather and operational conditions] were not
reasonably foreseeable based on historical weather patterns and predictable operational
conditions.”. (Proposed section 301. 109(a)(2).
There is no such requirement forthe contents of
an application for a non-emergency variance set forth in Section 180.202.
However, emergency
variance requests are allowed for “unforeseeable events.” Thus, it appears that the Agency is
either trying to add a new eligibility requirement, not included in section 180.202, for obtaining a
non-emergency thermal variance, namely that the weather and operation conditions were not
“foreseeable”,orthe Agency intends to apply proposed Section 301.109 only to emergency
thermal variance requests.
The Agency needs to clarify the intended scope ofits proposed new section 301.109 as to
its applicability to non-emergency and emergency variance requests.
Ifthe Agency intends that
proposed section 301.109
applyto non-emergency variance requests,
then it should be
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consideredwhether this expansion ofthe requirements for granting a non-emergency variance
request to include the element of“unforeseeability”is proper giventhat existing section 180.202
does not contain any such requirement.
Further, the Agency should explain why the element of
unforeseeability should be included as a condition to
granting a non-emergency thermal
variance.
Alternatively, if the Agency only intends proposed section 301.109 to applyto
emergency thermal variance requests, i.e. those based on equipment failures, extreme weather
conditions or other unforeseeable events, the proposedrule needs to be clarified to explain
whether applicants for an emergency thermal provisional variance
are to continue to follow
Section 180.204 procedures or do they also have to provideinformation that addresses the new
requirements forthe Agency’srecommendation to the Board under proposed 301.109? The
latter would seem to be the case as otherwise the Agency is left to figure out for itself issues,
such as the foreseeability ofthe extreme weather conditions, from the discharger’sperspective.
However, because the Agency has not proposed any changes to Part 180’s application
requirements, it is unclear whether the applicant is supposed to address the new requirements
proposed in section 301.109.
Ifthe applicant has no such responsibility to address the 301.109
requirements, then it is equally unclear on what basis the Agency is going to make the
recommendation as proposed in section 301.109, as little ornone ofthe information to be
presented to the Board by the Agency is required to be submitted by the variance applicant.
III.
Specific Comments on the Proposed Language of Section 301.109
A. Proposed Section 301.109(a)(2)
Proposed section 301.109(a)(2) requires that the Agency “[e]xplain
why the conditions in
subsection (a)(1) ofthis Section were not reasonably foreseeable based on historical weather
patterns and predictable operational conditions.”
This requirement imposes an impossible
burden and responsibility for anticipating/forecasting critical environmental conditions-on the
Agency and, in all likelihood, on the applicant/discharger.
This requirement is unworkable,
ambiguous and should not be adopted.
While there is an abundance oflong-term weather forecast information available, there is
still a considerable amount ofuncertainty regarding the validity ofany projections made for
more than a 2-3 day period.
Experienced forecasters in both thepublic and private sectors stnve
to make the best projections possible, employing their knowledge ofweather patterns, radar and
sophisticated models, but the accuracy ofsuch predictions is not always borne out by actual
conditions.
Historical weather data, while interesting, does not follow any specific year-to-year
trend as far as predicted occurrences ofhot, dry spells.
Power producers, and utilities in general,
rely on such forecasting infonnation for long-term planning purposes, but in the end,
they are
held to operate under whatever conditions are actually encountered.
In the Chicago area,
summer operations are geared towards meeting the conservative expectation: a period ofhot,
dryweather. This expected situation does not always occur, as we experienced with last year’s
moderate summer; however,
in most instances, it canbe expected that hot, humid weather will be
most prevalent in July and Augustof each year. Our generating stations can operate well under
these conditions as long as they do not continue for an extended duration, and as long as
sufficient water exists to dissipate the heat produced by the steam-electric generatingprocess. A
problem that often comes into play during prolonged hot weather is the concurrent lack of
appreciable rainfall, which results in lower than normal river flows and less heat rejection
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capacity.
These adverse conditions cause the temperature offacility discharges to approach their
maximum thermal limitations and/or to use a considerable number ofallowable excursion hours.
Anticipating the duration and magnitude of such events is beyond the current capabilities ofboth
experiencedweather forecasters and the regulated community.
In the past fifteen years, therehave been only three instances when extreme weather
conditions occurred.
These events occurred in 1999,
1995 and 1988.
During the last two weeks
ofJuly,
1999, the Midwest experienced a lengthy series ofdays with temperatures higher than 90
0F.
The combination ofhigh heat, record dew points, strong solar inputs and weak winds led to
a
dangerous situation for people. Before it was over, there were 127
deaths attributed to heat in
Illinois; 105
additional deaths were reported in surrounding states.
There were additional health,
infrastructure and economic impacts that were also quite significant. It would be wrong to
characterize this adverse weather pattern as “foreseeable.” July,
1999 had a quite normal
temperature history in the Midwest until the latterpart ofthe month.
Maximum temperature
departures from normal were especially strong in the central band ofthe Midwest, reaching
8 or
9
0F in places for the 15-day period July
17 to 31.
Theminimum temperatures were also very
high during the evenings, especially in
Chicago. Therefore, there was no relief of a nightly cool
down period to recover from the heat accumulated during the previous day.
In Chicago, the in-
city temperatures measured about
5
to 7
0F higher than surrounding suburban locations.
The prolonged period ofhigh temperatures and widespread use of air conditioning
brought new daily power use records in major Midwestern cities, including Chicago. These
records were a result ofthe combination ofhigh temperatures and the continuing growthin urban
demand for electricity.
Electrical generating and transmission equipmentwere also put under
extreme stress during these conditions, resulting in breakdowns and shortages in available
electrical capacity, along with widespread power outages due to transmission line failures.
The heat wave of 1999 is not an isolated event, in that there have been instances in
previous years when unusually high, sustained temperatures have occurred.
Another example is
the heat wave ofJuly 12-16, 1995, when 583 people died, making it the deadliest weather event
ofthe century. Humidity was extremely high with dew point temperatures in the upper 70s to
lower 80’s.
The hottest day was July
13.
The high of 104
0F at O’Harewas the second highesf
official temperature in Chicago. The heat index peaked at 119
0F.
This was the most intense
combination ofheat and humidity ever in Chicago.
Before that, in
1988, there were 47 days with
temperatures m the 90’s and7 days in the 100’s,both records.
Drought leadto lower humidity
and lower minimum temperatures than other hot summers.
So, despite all ofthe high
temperature days, 1988 ended up being less severe than the more recent summers of 1995 and
1999.
However, under the Agency’sproposal, it is possible to contend that the 1988 weather
conditions made the
1995 and 1999 weather conditions “foreseeable.” Clearly, they were not, as
the Chicago areawas not prepared for either set ofweather conditions, as evidenced by the high
number ofhuman lives lost during both those summers.
It should be noted that all three ofthese extreme weather periods coincide with a majority
ofthe thermalprovisional variance requests documented in the Agency’s submittal(IEPA
Exhibit No. A). Another important consideration is that none ofthese extreme weather events
were predicted in any precise, detailedway by long-range forecasts, nor could the duration
and/or magnitude ofthe heat wavesbe projected by weather forecasting professionals evenwhen
conditions had already begun to deteriorate.
These events did not follow any particular pattern
or historically apparent trend. As such, they were not foreseeable nor do they make future
extreme weather events “foreseeable.”
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It would not be economicallyjustifiable for a power producer to install and maintain
contingencyback-up equipment, such as supplemental cooling systems, forsituations which are,
by their very nature, sporadic and unpredictable.
Supplemental cooling towers were installed at
ourJoliet Generating Station #29 during the summer of 1999, in order to allow the station to
continue to
outputneeded power during extremeweather conditions, whilemaintaining
compliance with all applicable thermal limitations.
The decision to install 24 towers was based
on several factors, including historical information on previous unit deratinga taken during hot
summers, previously experienced weather extremes, practical limitations related to costs, as well
as the available physical space forinstallation ofthe cooling towers. The 24 Joliet towers are
capable ofcooling approximately one third ofthe station’s thermaldischarge by approximately
14 degrees Fahrenheit (design criteria).
While the benefit ofusing the towers is appreciable,
there will continue to be situations where they will not be able to prevent the station from the
need to further derate in order to maintain compliance with thermal limits.
This situation has
already occurred this summer.
It is important to note that if sufficient cooling capacitywere to be installed at the Joliet
Station #29 to completely shield the facility from any thermally-related compliance problems
under any type or duration ofadverse weather conditions, an additional
62 cooling tower
modules (ofidentical design as the existing 24) would be required at a cost ofover $124M, if the
required amount of land were available for their construction.
The sheer magnitude ofthis type
ofundertaking is clearly not practicable ortechnologically feasible for any powerproducer.
Therefore, we continue to maintain our existing equipment to withstand the stresses oftypical
summer conditions, as well as meet ourpermit requirements. We must continue to rely on the
regulatory exemptions available to cover those situations when extreme environmental
conditions dictate that we continue to operate at higher loads, even when we are approaching our
maximum thermal discharge limitations.
B.
Proposed Section 301.109(a)(3).
Proposed section 301.1 09(a)(3) requires that the Agency “[l]ist
any provisional variances
that theBoard issued to the petitioner within thepreceding five calendar years with respect to
any watertemperature standard.”
Section 36(c) ofthe Environmental Protection Act (Act)
provides that the provisional variances granted to any one person shall not exceed a total of90
days during any calendar year.
It doesnot in any way limit thenumber ofprovisionatvariances
that may be granted over a five yearperiod. To show compliance with the statutory 90-day
annual restriction on provisional variances, it is reasonable to include in the Agency’s
recommendation a list ofany previous variances for a particular facilitywithin the calendar year.
However, to require a listing ofprovisional variances granted in prior years is
unnecessary and irrelevant. It also wrongly implies that the mere fact that an applicanthas been
granted one ormore previous variances is sufficient grounds to deny the instant request.
Certainly, absent a further explanation and showing ofwhythe granting ofprior provisional
variances were granted, the mere listing ofprior variances does not provide truly relevant
information.
It certainly should not be grounds for denying a subsequent request. Any variances
granted during prior years were determined by the Agency and the Board to have met the
requirements ofthe Act and the regulations.
They stand on their own merits, having been
approvedby both IEPA and the Board, based on c9nditions documented within the provisional
variance petitions forthe time period forwhich they were requested. The new proposed
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requirement wronglyimplies that if a facilitywas granted provisional variances in thepast, this
mayjeopardize their ability to be granted a thermal provisional variance in the future. The
approach is contrary to the purpose and intent ofthe thermal provisional variance as an
emergency reliefmechanism from
adverse weather conditions that are often unpredictable and
do not follow any clear historical trend.
C.
Proposed Section 3O1.1O9~b)(2)(A~
Proposed
Section 30l.l09~b)(2)(A~ provides
that the Agency may include a condition to
the thermal
provisional
variance that requires the “petitioner to continuously monitor intake,
discharge and receiving stream temperatures and to visually inspect intake and discharge areas at
least three times daily to assess
any mortalities to
aquatic life.” Some ofthese additional
monitoring requirements may be appropriate under certain circumstances.
However, the
requirement to continuously monitor receiving stream temperatures is not feasible and, at best, is
unduly burdensome.
Although the Agency’sstates that the technical feasibility ofcontinuous receiving stream
temperature monitoring has beenwell documented, such monitoring is actually not feasible in
most cases.
(It is assumed here that the intended meaning of“receiving stream temperature”is
equivalent to the temperature in themain body ofthe receiving stream in the immediate vicinity
ofthe facility’s discharge. For clarity, such a definition of“receiving stream temperature”
should be included in the proposed rule).
All ofMidwest Generation’s generating stationsdischarge into waterways which are
frequented by barge traffic, thereby making the placement ofa continuous monitoring device in
the main body ofthe receiving stream impossible.
Ifthere is
a need to assess receiving stream
temperature it perhaps couldbe accomplished by taking temperature measurements during the
course ofthe proposed biological monitoring, which is discussed in Section E below. The
measurements would not
be continuous, but would provide adequate water temperature
information that couldbe correlated with the findings ofthebiological monitoring program.
This approach would provide the equivalent information that the Agency is looking for in a
feasible manner.
D.
Proposed Section 301.109(b)(2)(B)
Proposed Section 301.109(b)(2)(B) provides that the Agency may include a condition to
the thermal provisional variance that requires “thepetitionerto document environmental
conditions during the term ofthe provisional variance, including the activities described in
subsection (b)(2)(A) ofthis Section, and to submit the documentation to the Agency and the
Department ofNatural Resources within 30 days after the provisional variance expires.” As
used in this subsection ofthe proposed rule, the meaning and scope ofthe phrase “environmental
conditions” is unclear. It does not inform the regulated community ofits proposed obligations.
For example, there is no identification ofthe parameters orcriteria to be documented. The
discharger is not informed ofthe type of information this proposed condition requires it to
collect.
The proposed rule
also does not allow sufficient time for the submittal ofthe required
monitoring data and associated information required in subsections A, B and C ofsection
301 .109(b)(2).
At least, the discharger should be allowed to make one single submission to the
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Agency, rather than three separate reports, to ease the reporting requirement, avoid unnecessary
duplication ofefforts, and potentially avoid confusion.
E.
Proposed Section 301.109(b)(2)(C)
Proposed Section 301.109(b)(2)(C) provides that the Agency may include a condition to
the thermal provisional variance that requires “thepetitioner 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 theDepartment ofNatural Resources within 30 days after the provisional
variance expires.”
The phrase “biological activities”is unclear.
It would be both clearer and
more accurate to use the phrase “biologicalmonitoring.” Monitoring of the biological conditions
in the receiving stream more accurately describes the true nature ofthe requirement.
In its
Statement ofReasons, the Agency itselfrefers to “monitoring”ofbiological conditions in
describing this requirement rather than referring to the more ambiguous term “activities”
generally.
(See Agency Statement ofReasons at p. 4, bottom paragraph).
In addition, the type
ofmonitoring to be done,
as well as the proposed frequency and duration, should be included in
the requirements.
In our experience, the population which is most measurably responsive to short-term
changes in thermal conditions is the fisheries community.
During the period from May through
September of each year, Midwest Generation routinely monitors the fish community in the
vicinityofour larger stations. This long-term monitoring program has been in place forover 20
years, and provides an excellent basis from which to determine any short or long-term trends
related to how fish respond to locally elevated temperatures.
This existing monitoring program
should be sufficient to satisfy the monitoring requirements for a provisional variance.
Due to the
nature ofheated water, most thermal discharges are surface plumes, which are generally
confined to the upper levels ofthe water column.
As such, there would be no reason to suspect
that the discharge would be in contact with and/or adversely affect the macroinvertebrate and/or
shellfish communities present in the waterway.
Any proposed monitoring requirement should be
limited to monitoring biological conditions ofthe fish community.
A requirement to monitor
biological conditions beyond the fish community is not likely to provide necessary orhelpful
information to determine how the aquatic system responds to a temporary change in water
column thermal conditions.
The proposed requirement to submit the requiredmonitoring data within 30 days after the
variance expires is too stringent.
While the environmental conditions, intake and discharge
temperatures and visual inspection informationwould be available within this timeframe, the
biological monitoring datarequires some additional processing and analysis which typically
would require more than 30 days to complete.
In addition, in order to be able to use and interpret
the biological monitoring data in an effective and useful way,
monitoring would need to be
continued after the varianceperiod expires to
determine whether
receiving stream conditions
return to “normal”. This post-variancedata may provide the most important indicator ofthe
overall impact, or lack ofany impact, ofthe thermal variance on the aquatic community.
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F.
Proposed Section 301.1 09(b)(2)(D)
In section 301.109 (b)(2)(D), the Agency proposes to require “the petitioner to
immediately notify the Agency and the Department ofNatural Resources ofany unusual
conditions,
including mortalities to aquatic life; to
immediately take action to remedy the
problem; to investigate and document the cause and seriousness ofthe unusual conditions while
providing updates to the Agency and the Department ofNatural Resources as changes occur until
normal conditions return; to notify the Agency and the Department ofNaturalResources when
normal conditions return; and to submit the documentationto the Agency and the Department of
Natural Resources within 30 days afternormal conditions return.”
Themeaning of “unusual conditions”is unclear, particularly in the context of a thermal
provisional variance.
What does the Agency/IIDNR consider an “unusual condition” versus a
“usualcondition”, particularly when most thermal variances are granted, by their very nature,
during times of“unusual”weather and receiving waterconditions?
Further, some differentiation
must be made between temporary effects and morepermanent effects (e.g.
fish avoidance versus
fish kill).
In otherwords, any temporary effect, albeit unusual, should not trigger any
notification requirement but a potentially permanent, damaging effect would require notice.
Otherwise,
a permittee may need to contact both agencies on at least a daily basis to report any
further changes in temperature and flow conditions, and any new aquatic life observations, in
order to ensure that compliance with this proposed reporting requirement for “unusual
conditions” is maintained.
We also believe that the proposed requirement to take immediate action “toremedy the
problem” is both unclear and inconsistent with the decisionto allow a provisional variance. The
proposed regulatory language does not explain what is considered a “problem” thatmust be
“remedied”by the discharger. Assuming that the discharger is operating within the provisions of
the provisional variance that it has been granted, then is it a “problem” that thereceiving stream
temperatures have increased, as expected, as a result ofthe discharge?
Is it a “problem”that
some fish mortality has occurred? Depending upon the meaning ofthe term “problem” that
requires a remedial response, the proposedrequirement threatens to effectively negate the
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decision to grant the provisional variance.
It requires the discharger to address any changes in
conditions in the receiving stream without a clear showing ofcausation, without any due process
protections and with the potential ofvery little environmental benefit.
The needto take immediate remedial action is not warranted, and may be detrimental,
unless and until the conditions are properly investigated and appropriate findings and
recommendations for any necessary remedial action are reviewed and approved by the Agency.
The proposed rule also improperly lacks any provision that allows a petitioner to challenge the
Agency’sdemand for remedial action before the Board.
For
example, there are times during
severe summers when fish kills occur even without the presence ofany industrial discharges.
Decreasing station loading under these circumstances would not provide any significant benefit.
Ifan investigation does indicate that the environmental conditions are caused by the thermal
discharge, the proposed remedial action required under this rule could be interpretedto include a
decrease in thermal loading to the receiving stream.
Such a result couldjeopardize Illinois’
power supply during critical demand periods. Before
any such action is required, it is imperative
that the situation should be carefully reviewed to balance the relative hardships and benefits to be
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obtained by suchaction.
This
is particularly true where the effect ofthe proposed requirement
for immediate remedial action may be to spare fish at the potential cost ofhuman lives.
Midwest Generation recommends that each situation must be assessed on a case-by-case
basis.
Remedial action should not be required where the adverse impact caused by the granting
ofthe provisional variance is a temporary one.
Therefore, the phrase
“
to immediately take
action to remedythe problem” should bedeleted.
Any change to the rules should limit any
potential remedial action requirements to permanent, adverse environmental impacts to the
receiving stream that are directly caused by the thermal discharge during the-term-ofthe
provisional variance.
It should provide that these impacts will be assessed on an individual
basis.
Any determination ofremedial actions which effectively negate the allowances provided
in the original provisional variance must be subject to review. Also, as remedial action could
take many different forms, such as an extended period of additional biological monitoring, the
appropriate submittal date forthis
additional information should be determined on a case-by-case
basis.
G.
Proposed Section 301.109(b)(2)(E)
Proposed Section 301.1 09(b)(2)(E)
allows
the Agency to
condition a thermal provisional
variance on the requirement that a petitioner “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.” Thisproposed rule is too broad
in scope.
This requirement shoulcf be applied only to facilities which violate their provisional
variance limitations (or havedone so in the past). We also submit that this requirement should
apply only to non-temporary adverse impacts, as discussed above, and should not be part ofthe
normal thermal provisional variance process.
As part ofthe normalprovisional variancejustification process, an applicant is required
to discuss the possible environmental impacts ofthe proposedthermal variance on the receiving
stream.
Inmost instances, the period oftime during which the variance is being sought is
already the hottest part ofthe year, when the aquatic community has already been subjected to
elevated water temperatures (either due to natural or industrial sources). As the Agency noted in
its Statement ofReasons for the proposed rules, the provisional variance requests made in the
past for fossil-fueled stations were for an extension ofthe number of allowable excursion hours
within which the stations were allowed to operate under their NPDES permits. They were not
requested or granted to include an exemption from maximum temperature discharge limitations.
As such, during these types of extreme summer conditions, extending the amount oftime which
the aquatic community is exposed to elevated temperatures should not be expected to have any
permanent adverse impact, as these organisms have either already been acclimated to these
temperatures or will seek out portions ofthe waterway out ofthe direct influence ofthe power
plant’sthermal discharges.
This has been documented in previous studies as a temporary
situation; once the water temperature diminishes, the fish population in the immediate area
returns. (Ref.:
2000 Lower Des Plaines River Fisheries Investigation RM 274.4-296.4, and
previous studies)
The requirement to
develop and implement a recovery plan should only be implemented
when it is
apparent from the daily surveillances and required biological monitoring that there is a
significant, detrimental impact to the aquatic community in the vicinity ofthe discharge (which
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would most likely be due to an exceedance ofthe allowable thermal limitations). The details of
this plan would need to be established in accordance with and responsive to the specific
conditions encountered.
Additionally, although the Agency states in its Statement ofReasons
that the requirement to develop and implement a plan to address any adverse environmental
impact ofthe provisional variance is “technicallyfeasible and economically reasonable”for the
subject facilities, the proposed rule does not limit or condition the contents ofthe proposed plan
to remedial activities that are both technically feasible and economically reasonable.
We appreciate the opportunity to review and comment on this rule. While we believe
that there has been an insufficient showing ofthe need for this proposed rule, we have submitted
these observations in an effort to identify for the Board the additional problems presented by the
proposed language ofthe rule. We support the proposal by IERG to incorporate certain ofthe
proposed rule’s provisions into theexisting Agency Part
180 regulations.
We believe that the
relevant
facts and circumstances show that by making certain modifications to
the Part 180
regulations, as contained in the IERG suggested language,
the Agency can achieve its stated goal
ofinforming the regulated public ofhow it will handle future requests forthermal provisional
variances.
Midwest Generation reserves the right to supplement or modify this pre-filed testimony.
Respectful
submitted,
Dated:
August 9, 2001
Susan M. Franzetti
Sonnensehein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
-10-
14174734\V.2
CERTIFICATE
OF SERVICES
Susan M. Franzetti hereby certifies that she caused a true and correct copy ofthe foregoing PRE-
FILED TESTIMONY OF JULIA WOZNIAK, MIDWEST GENERATION
EME,
LLC FOR JUNE
20, 2001
BOARD HEARING
to be served on:
Dorothy M. Gunn, Clerk
Illinois PollutionControl Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL
60601
Andrew Boron
Hearing Office
Illinois Pollution Control Board
100 West Randolph Street, Suite 11-500
Chicago, IL
60601
Deborah J. Williams
Assistant Counsel, Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North GrandAvenue East
P.O. Box 19276
Springfield, IL 62794-9276
Mark Biel
Executive Director
Chemical
Industry Council of Illinois
920
South Spring Street
Springfield, IL
62704
Debbie Bruce
Illinois Department of Natural Resources
600 North Grand Avenue West
Springfield, IL
62701
Joel Cross
Illinois Department ofNaturalResources
600 North Grand Avenue West
Springfield, IL
62701
Lisa Frede
Director of Regulatory Affairs
Chemical Industry Council of Illinois
9801
West Higgins Road, Suite 515
Rosemont,
IL
60018
Mike
Hooe
Illinois Chapter ofthe American Fisheries Society
416 Briarwood Drive
Salem, IL
62881
Robert Lawley
ChiefLegal Counsel
Illinois Department of natural Resources
524
South Second Street
Springfield, IL
62701-1787
Alex Messina
Illinois Environmental Regulatory Group
215 East Adams
Street
Springfield, IL
62701
William Murray
Regulatory Affairs
Manager
Office ofPublic Utilities
800 east Monroe Street
Springfield, IL
62757
David Rieser
Ross and Hardies
150 North Michigan Avenue
Chicago, IL
60601
Jim Smithson
Dynergy
785 West Hickory Point Road
Forsyth, IL
62535
JuliaWozniak
Midwest Generation
One Financial Place
440
South LaSalle St.,
Suite 3500
Chicago, IL
60605
Stan Yonkauski
Illinois Department of NaturalResources
524 South Second Street
Springfield, IL 62701-1787
by first class mail, properly addressed and with postage
epad,
this
9th day of August, 2001.
THIS FILING IS
SUBMITTED
ON RECYCLED PAPER
14174734.2
