ILLINOIS ION CONTROL BOARD
CLJ~R~=’~
.~JJC
0 ~
STATE OF
ILL
i~ojs
Pollution Control hoard
IN THE MATTER OF:
PROVISIONAL VARIANCES FROM
WATER TEMPERATURE STANDARDS:
PROPOSED NEW 35111. Adm.
Code
301. 109
)
)
RO 1-31
(Rulemaking
-
Water)
)
)
)
)
NOTICE OF FILING
TO:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA FEDERAL EXPRESS)
Andrew Boron, Esq.
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100
West Randolph Street
Suite 11-500
Chicago, Illinois
60601
(VIA FIRST CLASS MAIL)
(PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have filed today with the Clerk ofthe Illinois
Pollution Control Board an original and nine copies ofthe
PRE-FILED TESTIMONY
OF DEIRDRE K. HIRNER,
copies ofwhich are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
By:____
One ofIts ~1torneys
Dated: August 8, 2001
Katherine D. Hodge
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois
62705-5776
(217) 523-4900
Robert A. Messina
Illinois Environmental
Regulatory Group
215 East Adams Street
Springfield, Illinois 62701
(217) 522-5512
THIS FILING SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, RobertA. Messina, the undersigned, certif~r that I have served a copy ofthe
PRE-FILED TESTIMONY OF DEIRDRE K. HIRNER
upon:
Ms. Dorothy M. Gunn
Clerk ofthe Board
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Andrew Boron,
Esq.
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
SEE ATTACHED SERVICE LIST.
by depositing said documents in the United
States Mail and Federal Express in
Springfield, Illinois on August 8, 2001.
(
Robe
A.
essina
SERVICE
LIST
Mark
Biel
Executive Director
Chemical Industry Council of Illinois
920 5. Spring Street
Springfield,
IL 62704
Andrew
Boron
Hearing Officer
Illinois Pollution
Control
Board
100 W Randolph St
Ste 11-500
Chicago, IL 60601
Jim
Smithson
Dynergy
785 W.
Hickory Point Road
Forsyth,
IL 62535
Deborah
Williams
Illinois EPA
1021 NGrandAveEPOBoxl9276
Springfield,
IL
62794-9276
Debbie
Bruce
Illinois Dept of Natural
Resources
600
N
Grand Avenue West
Springfield,
IL 62701
Julia
Wozniak
Midwest Generation
One Financial
Place 440 5 LaSalle St Ste 3500
Chicago, IL 60605
Joel
Cross
Department of Natural
Resources
600 North Grand Avenue
Springfield, IL 62701
Stanley
Yonkauski
IL Dept Of Natural Resources
524 5 Second Street
Springfield, IL 62701-1 787
Susan M.
Franzetti
Sonnenschein Nath & Rosenthal
8000
Sears Tower
Chicago, IL 60606
Lisa
Frede
Director of Regulatory Affairs
Chemical Industry Council of Illinois
920 5. Spring Street
Springfield, IL 62704
Mike
Hooe
IL Chapter of Ameican Fisheries Society
416 Briarwood Drive
Salem,
IL 62881
Robert T. Lawley
Chief Legal Counsel
Department of Natural
Resources
524 5. Second Street
Springfield, IL 62701-1 787
William
Murray
Regulatory Affairs Manager
Office of Public Utilities
800
E Monroe St
Springfield, IL 60601
David L.
Rieser
Ross & Hardies
150
N.
Michigan Ave. Ste. 2500
Chicago,
IL 60601
RECEIVED
CLERK’SOFPrfl~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
I~UG
0
92001
IN THE MATTER OF:
)
)
RO 1-31
STATE OF ILLINOis
PROVISIONAL VARIANCES FROM
)
(Rulemaking~Water)~’OllUtIOfl
Control Board
WATER TEMPERATURE STANDARDS:)
PROPOSED NEW 35111. Adm. Code
)
301.109.
)
)
PRE-FILED TESTIMONY OF DEIRDRE K. HIRNER
NOW COMES the
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
(“IERG”),
by one ofits attorneys, Robert
A.
Messina, and submits the following Pre-
Filed Testimony ofDeirdre K. Hirner for presentation at the August 23, 2001, hearing
scheduled in the above-referenced matter:
TESTIMONY OF DEIRDRE K.
IIIRNER
My name is Deirdre Hirner and I am the Executive Director ofIERG. IERG is
a
not-for-profit Illinois corporation comprised of70 member companies engaged in
industry, commerce, manufacturing, agriculture, trade, transportation or other related
activity, and which persons, entities, or businesses are regulated by governmental
agencies which promulgate, administer, orenforce environmental laws, regulations, rules
orpolicies.
IERG was organized to promote and advance the interests ofits members
before governmental agencies suchas the Illinois Environmental Protection Agency
(“IEPA”or “Agency”) and theIllinois Pollution Control Board (“Board”). IERG is also
an affiliate ofthe Illinois State Chamber ofCommerce, which has more than 4,000
members in the
State.
On behalf ofIERG, I want to express our appreciation to the Board for allowing
IERG the opportunity to offer testimony on this very important subject.
My testimony today will focus on the general impact ofand need, or lack thereof,
for a proposal
of this nature, and related policy
and precedent issues. I also will raise
IERG’sconcerns regarding the scope ofthe proposal’sapplicability
and the proposed role
ofthe Illinois Department ofNatural Resources (“IDNR”)in the regulatory process. As a
statewide association, IERG represents many ofthe facilities having thermal discharges
that are, or may in the future, be subject to the provisions ofthis proposal.
IERG believes
that many
such
facilities are not aware
of the
implications
of this proposal and
my
testimony
will
thus
concentrate
on the
general
issues applicable to
all
thermal
dischargers. Those facilities that are clearly intended to be covered by this proposal,
all
ofwhom we believe are members ofIERG, will offer testimony or comments regarding,
among other issues, the feasibility, impact, and reasonableness ofthe specific language of
the proposal.
At the outset, I am compelled to state that, for reasons that are unclear, the process
surrounding developmentofthis proposal is uniike any ofthe others in which we have
participated recently.
First, quite frankly, the regulated community is uncertain what
actions precipitated the need forthe changes that are the subject ofthis proposal and,
unlike the vast majority ofAgency proposals
—
air, land and water-based
—
with which I
have had the privilege ofbeing involved, this proposal was not the subject ofpre-filing
discussions. Indeed, it is this aspect ofthe filing that I perhaps find most troubling.
IERG believes that all parties benefit from pre-proposal dialogue.
In this informal
context, the regulators, the regulated and other interested parties have had the opportunity
to discuss proposed requirements, understand theirpotential for impact on industry-wide
operations, ascertain their feasibility and necessity, and advance a proposal to the Board
2
with clear knowledge and understanding ofthe areas at dispute. Having become aware of
this proposal only after it was filed with the Board, the regulated community has had little
time to understand the harm this proposal intends to address, the breadth offacilities it
potentially covers, and perhaps more importantly, to assess its true impact on future
operations
—
especially under emergency conditions.
In addition, the structure ofthe proposal itself is troublesome in that it appears to
realign the role ofthe Agency and the Board in the area ofprovisional variances,
seemingly contrary to the Illinois Environmental Protection Act.
Moreover, it singles out
thermal variances for treatment different from all other provisional variances, and does so
without compelling documentation for the need
—
in testimony the Agency stated that, of
all water related provisional variance requests,
approximately only 10% are for thermal
discharges (June
7, 2001, Hearing Transcript, p.
55).
THE IMPACT OF THE PROPOSAL
Clearly, the primary rationale behind provisional variances in general is the
General Assembly’srecognition that circumstances will arise under which a short-term
variance from regulatory requirements and/or permit conditions will be warranted. The
General Assembly also recognized that such situations would, on occasion, happen
without advance notice, necessitating rapid action by the operator and regulatory
authority.
The combination ofthe suddenness and short-term nature ofsuch events is at
the heart ofa provisional variance.
And, it is the reason the Illinois Legislature, in this
limited type ofsituation, gave the Agency, rather than the Board, the decision-making
power to approve the variance, subject to the Board’sministerial
and mandatory action of
approving the Agency’srecommendation.
It therefore
seems reasonable that any new
3
regulations governing the grant or denial ofprovisional variances must be measured to
judge if they would either:
a) facilitate the intent ofthe General Assembly; or b) shift the
decision-making powers implied in Section
35(b)
of the Act.
IERG’sconcern
is that the proposal fails both tests and sets an unreasonable,
unnecessary and unjustified process for a narrow group ofprovisional variance
applications. If, indeed, additional regulations are needed to provide the regulated or the
regulator with additional guidance in thermal
—
or any
other
—
provisional variance
proceedings, the logical place to provide such guidance is the Agency’sexisting Part 180
regulations. Again, the short-term and sudden nature ofa provisional variance argues
against the wisdom ofhaving both Board and Agency regulations.
Because ofIERG’sbelief that the regulations should be an addition to the existing
Part 180 regulations, we have drafted an alternate proposal that we believe could be a
possible addition to the existing Part
180 regulations
—
although we do not believe such
an action is desirable, or even necessary at all.
IERG’sproposed language, which we are
filing as an attachment to ourtestimony, consists of a brief amendment to the Board’s
existing Section 301.109, which simply directs the Agency to adopt “procedures and
criteria” applicable to
water temperature standard provisional variances, along with
certain general language indicating the
scope of suchprocedures and criteria (Exhibit A).
The main body ofour proposed language, which IERG has discussed with the Agency,
would become an addition to the existing Agency Part
180 regulations.
The proposed
language attempts to, among other things address our, and members, concerns with the
Agency proposal that I will discuss later in this testimony.
4
IERG fully understands that this proceeding cannot be the mechanism to adopt
such regulations. The Agency would have to initiate this adoption procedure pursuant to
the Illinois Administrative Procedure Act.
Accordingly, IERG’sproposed Part 180
language is submitted to the Board simply to provide an indication ofwhat type of
language we believe would be appropriate.
If, however, the Board were to proceed to
adopt regulatory language as its own regulations
as proposed by the Agency, IERO
strongly urges that ourproposed language serve as the basis ofsuch regulations.
IERG’SPROPOSED REVISIONS
Putting aside for a moment the critical questions ofthe need for and appropriate
venue for suchregulations, I would like to briefly explain the rationale forIERG’s
suggested changes to the Agency’sproposed language.
IERG’sproposed Section
180.500(a), which mirrors the Agency’s proposedSection 301.109(a), only contains
additional language that would maintain the distinction between ordinary and emergency
provisional variances.
IERG’s proposal wouldonly apply to ordinary thermal provisional
variance petitions. Proposed Section
1 80.500(a)(1) is identical to the Agency’slanguage;
Section 180.500(a)(2)
is nearly identical except forthe omission oflanguage pertaining
to historical weather patterns and operational conditions that IERG believes is
unnecessary.
Nothing precludes the Agency from considering this information in
determining foreseeability, but many factors often contribute to whether the need fora
provisional variance is foreseeable, and IERG believes the inclusion ofoniy two factors
will cause that information to be overvalued at the expense ofother valid information.
IERG’sproposed Section
180.500(b) is very similar to the Agency’s proposed
Section 301.109(b). Proposed Section 180.500(b)(1) contains many ofthe conditions
5
contained in the Agency’sproposal
—
some ofthe language has been stricken, as will be
discussed shortly, and some ofthe language from the Agency’s proposalis combined into
one broad condition. IERG’s proposedSection
180.500(b)(1)(A) includes most ofthe
requirements that are contained in the Agency’scondition (A), which requires monitoring
of water temperatures and visual inspection ofintake and discharge areas to assess
aquatic life mortality, and condition (B), which requires documentation ofenvironmental
conditions during the life ofthe permit.
With regard to the Agency’scondition (A),
IERG struck the word “continuously”before the temperature monitoring language and
“threetimes daily” before the visual inspection language.
IERG believes these changes
will give the Agency greater latitude to determine what is most appropriate in a
provisional variance on a case-by-case basis.
IERG has also stricken receiving water
from the temperature monitoring language because of issues pertaining to technical
feasibility.
With regard to the Agency’s condition (B), IERG struck the Departmentof
Natural Resources from the requirement to document conditions,
and struck the 30-day
deadline for reporting those conditions.
Again, IERG believes striking this arbitrary
deadline will give the Agency greater latitude to determine howmuch time is appropriate
for providing relevant information.
IERG’sproposed Section
180.500(b)(l)(B) is similar to the Agency’scondition
(C), which requires the implementation and documentation ofbiological activities to
characterize how aquatic life responds to the thermal conditions resulting from the
provisional variance. IERG’s proposalwould not require immediate implementation of
the activities, as the Agency’sproposal would require, but would require biological
activities to be implemented after consultationwith the Agency.
This change was made
6
to the Agency’s language toensure that appropriate, meaningful activities were
implemented by the facility that would satisfy the needs ofthe Agency.
Also, as above,
IERG struck the IDNR from the requirementto document the activities,
and struck the
30-day deadline for documenting those activities.
IERG’sproposed Section
180.500(b)(l)(C)
is similar to the Agency’scondition
(D), which requires notification ofany unusual conditions and action to remedy the
problem.
IERG’sproposal, however, would
only require notification if the adverse
environmental impact was greater than those identified in the provisional variance
application (the Agency already requires, pursuant to Section
1 80.202(b)(6), that
applicants provide an assessment ofany
adverse environmental impacts which the
variance may produce). IERG does not require immediate action to be taken to remedy
the problem or to
investigate or document the cause and seriousness ofthe conditions, but
IERG does require the facility to, if necessary, develop a planto evaluate the nature and
extent ofthe adverse environmental impacts.
Once again, IERG struck all references to
the IDNR from the Agency’slanguage.
Proposed Section
1 80.500(b)(2), which requires the inclusion ofa rationale for
eachcondition imposed, is
nearly identical to the Agency’slanguage in proposed Section
301.109(b)(1), but has simply been moved to the end ofthe proposed subsectionfor
structural reasons.
THE NEED FOR THE PROPOSAL
Quite frankly, IERG sees no need for this proposal.
IERG further notes that the
Agency has not stated any real justification for this proposal,
let alone made a compelling
case.
The Agency, in its STATEMENT OF REASONS (Agency’sStatement ofReasons,
7
p.
5)
and in its testimony (Transcript,
at page 11) states that, in general, the Part
180 rules
have worked well.
The Agency then goes on to say, “However, given the knowledge and
experience that comes with 20 years ofconsidering requests for provisional variances, the
Illinois EPA is proposing additional criteria in regards to provisional variances from
water temperature standards.” The additional criteria are those that the Agency has
proposed at Section 301.1 09(a)( 1 )-(3).
When questioned, the Agency testified at hearing that it currently has the
authority to consider the factors outlined in proposed Section 301.109(a)(l)-(3) and
impose any conditions it deems necessary in recommending the grant ofa provisional
variance.
The Agency has, in fact, exercised this authority in the past (Transcript, at
pages 23-26). The Agency’switness, Mr. Frevert, then went on to indicate that, as a
matter ofpractice, the Agency has considered the Section 301. 109(a)(1)-(3) factors in
evaluating requests for thermal provisional variances in addition to
thos7e criteria
articulated in Section 180.202(b).
He stated that he believed it would be beneficial to the
Agency, the regulated entities and the general public to provide clarification on the
materials the Agency specifically considers, its routine way ofoperating, its up-front
communicationofthe type ofmaterial the Agency is looking for (Transcript, at pages 26-
29). Mr. Frevert stated it is the Agency’sintent to getthe issue ofthermal provisional
variances out in the open and into the public discussion
...
to more or less put the utilities
on fair notice that it is looking at the requests in a different light than it did ten years ago,
“and to that extent I think we have accomplished our purpose.”
Equally important as regards the need for the proposal is the question ofhow the
existing rule impacts on future decisions of affected facilities.
IERG would argue that the
8
existing regulation should be neither so restrictive as to make variances virtually
impossible to obtain,
nor so permissive as to discourage actions to reduce the need for
future variances. The existing Part
180 regulations
seem to have achieved the appropriate
balance. This is most clearly demonstrated by the Agency’s own testimony regarding
provisional variances granted during the summer of 1999.
As the Agency relates, the
conditions encountered in the summer of 1999 led to four provisional variance requests
and one extension request (Transcript, at pages
13-15).
Two ofthe requests were never
used demonstrating a key value ofthe provisional variance process
—
precautionary action
to avoid possible violations. The two requests and the extension that were used led to
discussions between the Agency and the facilities in question. We understand that, in
both cases, the facilities installed, at considerable
cost, additional cooling capacity.
Thus,
the Part 180 rules allowed (and should continue to allow) rapid relief when needed while
at the same time prompting actions to lessen the probability that they will in factbe
needed. This, IERG believes is the proper balance for a regulation ofthe type in
question.
Simply put:
if it’s notbroken,
don’t fixit!
POLICY AND PRECEDENT
In its STATEMENT OF REASONS, the Agency states that the “proposal sets
forth how the Illinois EPA will exercise its provisional variance authority consistent-with
the Act and the Illinois EPNs regulations” (Reasons, at page 2). As the proposal is
structured, each ofthe criteria contained in Section 301. 109(a)(l)-(3) are requirements
placed on the Agency’srecommendation to the Board and not on the regulated
community. They are in essence the Agency proposing to regulate the Agency.
Rather
than informing the regulated community, these new criteria appear to be new standards
9
by which the Board judges Agency action, and are thus limiting factors that are neither
articulated nor contemplated in the Act.
The criterion contained in proposed Section 301.1 09(a)(1) seeks to limit
“arbitraryor unreasonable hardship” to that caused by “weatherand operational
conditions.” The second criterion introduces the concept ofrequiring an explanation of
that which is
“reasonably foreseeable” basedon historical events to avoid undue
hardships. The regulated community is at a loss as to what this means and how it can be
accomplished by the Agency. The third criteria appears to introduce a test or
consideration in recommending the grant or denial ofa thermal provisional variance,
using past history as a test for future
variances.
The conditions that constitute an
arbitrary or unreasonable hardship are not calendar dependant, but rather are generally
the result ofevents beyond the control of the applicant.
The implication ofthese new criteria is to establish limits in terms ofmagnitude
and time, in contrast to the General Assembly’sdecision to place no such limit on what
constitutes an arbitrary or unreasonable hardship.
It is, and always has been, the
obligation ofthe applicant for a provisional variance to demonstrate an arbitrary or
unreasonable hardship, and the obligation of the Agency to judge the validity ofthat
claim.
Expressions ofcriteria for administrative decision-making are appropriate but
these criteria must be based in the enabling legislation.
The Agency has identified no
examples ofareas where the regulated community was misled by or misinformed ofthe
Agency’sapproach, or where Part 180
did not advise the regulated community of what
was appropriate.
10
The combined result ofthe interrelated criteria contained within Section
301.109(a)(1)-(3)
appears to be intended to place new and additional limits on the
Agency’sability to recommend the grant ofa thermal provisional variance. The Agency
has stated, and IERG agrees, that a recommendation to grant a provisional variance is a
defacto
grant ofthe provisional variance itself.
The only rationale for these limiting
criteria is to adopt a Board rule to effectively dictate to the Agency what they may or may
not recommend, thus implying Board power to review Agency decisions for compliance
with these criteria. This would put the Board in the position ofasserting authority that it
was not granted under the Act, which states:
The Board shall grant provisional
variances,
only upon
notification
from the
Agency 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.
Such
provisional variances
shall
be issued within 2 working days of notification from the Agency
(415
ILCS
5/35(b)).
The proposal next would impose a required set of conditions upon the
recommendation to grant a provisional variance.
It appears that the conditions listed
in
Section 301.109(b)(2)(A)-(E) would necessarily be included in the granting ofa
provisional variance absentjustification from the Agency to the contrary.
Once again the
imposition of limitations on the Agency’s discretion to identify appropriate andnecessary
conditions on the grant ofa provisional variance is counter to the twin criteria ofan
expeditious process and the short-term nature of relief that are at the heart ofa
provisional variance petition and decision.
Again, as testified to at hearing, the Agency
already has the authority to impose any
and all reasonable conditions on a provisional
variance.
11
What then is the purpose ofmandating a subset ofpossible conditions for special
inclusion in a thermal provisional variance in a Board rule? The only possible reason is
an attempt to somehow limit the Agency’sauthority and shift the decision-making
powers.
Further, the added requirement for the Agency to articulate rationales in a
recommendation increases the time needed to prepare that recommendation and would
only serve to delay the issuance ofthe variance, thus frustrating the need for rapid
resolution ofthe issues at hand.
I would add that, in IERG’s opinion, certain ofthe
recommendations appear to be well beyond the scope ofa provisional variance and
would impose responsibilities ofan unknown type and duration on the regulated
community.
The sole expressed reason or need for the proposal is to provide a communication
to the regulated community and the citizens ofIllinois ofthe process that the Agency
goes through in recommending the grant ofa thermal provisional variance.
Yet, Mr.
Frevert noted that the mere filing ofthe proposal put the regulated community on fair
notice and to that extent accomplished theirpurpose (Transcript, at page 33). This begs
the questions ofwhetherthe regulation is needed and why it is proposed to the Board.
According to Mr. Frevert, it certainly is not needed
in the near future.
There are only a
handful of entities that have requested thermal provisional variances in the past
12 years
—
5
to be exact.
There are only a few more likely to be
subject to this proposal at any
time in the future. There is an additional unknown universe ofpotentially affected
facilities that have thermal discharges, but to date have not found itnecessary to avail
themselves ofsuch relief.
12
There is no reason to believe that the goal of communicating the intent ofthe
Agency cannot be accomplished in ways otherthan a precedent setting and statutorily
uncertain regulatory proposal.
Mr. Frevert stated there were a number ofways to proceed
to achieve the Agency’sobjective to put industries on notice to expect this to be the
routine way ofoperating in the future.
The Board proceeding currently underway was
selected “as the dust settled”(Transcript, at page 23).
IERG maintains that the Agency’s
objective has been achieved, and that industry is on notice.
Unless the Agency can
provide, a much more defensible STATEMENT OF REASONS for the proposal, IERG
would respectfully suggest that the Board dismiss the proceeding as unnecessary and
unjustified, or in the alternative decline to
adopt the proposal based on inadequate
supporting in the record.
THE SCOPE OF
THE PROPOSAL
Applicability to all thermal discharges
As drafted, the proposal, if it were to be adopted, applies to any and
all
facilities
that have any type ofthermal discharge.
These facilities and their thermal discharges
range from large electric generating facilities required to make thermal demonstrations to
the smallest discharge at a facility subject to the provisions of35
Ill.
Adm. Code Section
302.211(e).
As previously noted, only a limited numberof facilities historically have
availed themselves ofthermal provisional variances.
In its STATEMENT OF
REASONS, the Agency has said that the proposal will likely only impact electric utilities
(Reasons, at page 9).
However, the Agency has indicated at hearing that the proposal
should be applicable to all thermal discharges.
Further,
the Agency acknowledged that
some facilities may not have the depth and degree of information anticipated under this
13
proposal. IERG then must question how such dischargers can meet the proposed Part
301 requirements should a provisional thermal variance ever be needed.
The uncertainty
regarding the threshold and applicability language ofthe proposal makes it incumbent on
the Agency, as the proponent ofa regulation, to identify the universe of affected
facilities.
Certain of IERG’s membercompanies will offer testimony on concerns with the
proposed regulations in greater detail. The testimony will primarily center on large
thermal discharges.
The testifying companies, as well as many others, may well have
other thermal discharges that would fall under the purview ofthis proposal.
But before
they can adequately respond to the impact this proposal will have on them, the proponent
must clearly provide information on who is affected, and provide an assessment ofthe
ability ofsuch facilities to comply.
Absent such information, IERG would submit that
the proposal be deferred until such input can be provided.
Applicability to re2ular as well as emergency petitions
The Agency’srules at Part 180 distinguish between “regular” applications
(35
Ill.
Adm. Code Section
180.202) for provisional variances and emergency applications
(35
Ill. Adm.
Code Section 180.204).
On its face, the emergency application procedure
contemplates that the information required in a Section 180.202 (regular) application
would not necessarily be required. Rather, Section
180.204 provides that the Agency will
notify the applicant of what specific information must be supplied.
Section
180.301
contemplates that the Agency will review Section 202
and Section 204 variance requests
based on different information requirements.
14
The rationale forthe differences
is self-evident.
There will be cases
—
notwithstanding the best efforts ofthe applicant
—
when the need for a provisional
variance arises with little or no warning.
This suddenness factor is best demonstrated by
the factthat, when granted, the Agency often makes a provisional variance retroactive,
effective from the date it was applied for rather than the date ofthe grant.
The proposal at Section 301.109 appears to attempt to render this distinction
between emergency and regular provisional variances null and void.
By requiring the
Agency recommendations to “specifically address eachofthe contents required ofany
application for a provisional variance under 35 Ill. Adm. Code
180.202(b)” the Agency’s
latitude to act lacking Section 180.202(b) information is effectively removed. More
important than the specific language is the intent and impact ofthe regulation. Woven
throughout this proposal are a set ofmandates and imperatives that can only serve to
delay the timeline for the Agency to make a recommendation to the Board.
Under
Section 180.302, the Agency has 30 days from the receipt ofan application to either
recommend a grant or notify the applicant and the Board ofa denial.
The new constraints
imposed on the Agency by this proposal put all parties in a difficultposition.
The Agency will have a few options:
1) impose all ofthe conditions under
Section 301.109,
even if they have not had time to
assess the ability ofthe facility to
comply or the need for a specific condition; 2) pay lip service to the conditions and not
impose any or all ofthem; or 3) deny the provisional variance.
The applicant may well
be forced to either accept conditions
it may not be able to meet, or incur an arbitrary and
unreasonable hardship thus avoiding the need for the provisional variance but facing the
potential threat ofan enforcement action.
All ofthese options, for the Agency or forthe
15
applicant, constitute bad public policy and even worse regulatory language.
Unless the
proposal clearly and effectively recognizes the existence ofemergency situations and
provides a workable mechanism to address such situations, it is fatally flawed.
THE ROLE OF THE IDNRIN THE PROPOSAL
Illinois facilities are heavily regulated in the environmental area.
In numerous
instances, specific state agencies other thanthe IEPA are given statutory authorization
over a specific regulation or law.
Examples include:
the Illinois Emergency
Management Agency (“JEMA”)in the Community-Right-To-Know program; the Illinois
Department of Agriculture (“IDOA”)as regards
agrichemical facility remediation; and
the Illinois Department ofTransportation (“IDOT”)as regards hazardous material
transportation. The list goes on, but with a common theme.
The General Assembly
vested authority in a specified state agency and the regulated community was so advised.
A critical factor in a business’scompliance strategy is knowledge ofwho the regulator is,
and the rules that govern those regulators. This proposal attempts to elevate a state
agency, the IDNR, to the role of“regulator” by formalinclusion in the decision-making
process via Board action.
There is no statutory provision for this and, therefore, it is an
unauthorized and illegal action.
What is the proposed intended role ofthe IDNR in the process? Is it to simply
advise the Agency or is it to direct decisions? Is the IDNR to be considered an impartial
governmental consultant to the Agency, or an advocate ofa specific point ofview? A
review ofthe questions asked ofthe Agency by IDNR representatives at the June 7, 2001,
Hearing leaves little doubt as to the answer to this question.
Plainly, the IDNR believes it
needs
a larger role in the provisional variance process, and believes that the Agency is not
16
performing its job.
But only the General Assembly can give IDNR a role in this process
and, until it does so, the Board is not authorized to involve the IDNR in provisional
variance decision-making.
IERG recognizes that provisional variances are on a fast time line and the normal
opportunity for input is greatly limited.
We are not blind to the fact that the Agency may
opt to provide the IDNR with a copy ofeach thermal provisional variance request.
That
is its option. It is
also the Agency’s optionto accept or reject any comments that IDNR
may offer.
It is most emphatically not the Agency’s obligationor requirement to
consider or accept IDNR’sinput.
To
formally interject IDNR into regulatory language is
to give it status akin to a regulator, absent statutory authorization.
As I noted above, the regulated community expects and deserves to know exactly
which entity we report to, and the rules by which we have to abide. Currently, as regards
to provisional variances, the answer is clear
—
the JEPA and 35
Ill. Adm. Code Part 180.
Ifthe
State ofIllinois wishes to change the entity to which the regulated community must
report, IERG respectfully suggests that such a change be made by the General Assembly.
** ** * * * * * *
17
IERG reserves the right to supplement or modify this pre-filed testimony.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
Robert A. essina
Dated: August 8, 2001
Katherine D. Hodge
HODGE DWYER ZEMAN
3150 Roland Avenue
Post Office Box 5776
Springfield, Illinois 62705-5776
(217) 523-4900
Robert A. Messina
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
215 East Adams Street
Springfield, Illinois 62701
(217) 522-5512
IERG:OO1/R Dockets/FiI/RO1-3 1
18
Exhibit A
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE
C:
WATER POLLUTION
CHAPTER I:
POLLUTION CONTROL BOARD
PART 301.109 (NEW
Section 301.109
Provisional Variances from Water Temperature
Standards
The A~encv
shall adopt procedures
and criteria specific to the applications for
provisional variances from water temperature standards.
Such
procedures shall
a)
Identify
what factors
the Agency will consider when reviewing an
application for
a provisional
variance from water temperature standards
and
b)
Identify the types of conditions that the Agency may impose
in any
recommendation to grant a provisional variance from
water temperature
standards to the
Board
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE C:
WATER POLLUTION
CHAPTER II:
ENVIRONMENTAL PROTECTION AGENCY
PART
180
PROCEDURES AND CRITERIA FOR REVIEWING
APPLICATIONS FOR PROVISIONAL VARIANCES
SUBPART
E:
THERMAL PROVISIONAL
VARIANCES
Section 180.500 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)
or
180.204,
as
applicable. An Agency
recommendation issued in response to an application submitted
pursuant
to 35
Ill.
Adm.
Code 180.202(b) must to
the extent reasonably possible:
1)
Indicate if the arbitrary or unreasonable hardship results from
weather and operational conditions:
and
Indicate whetherthe conditions in subsection (a)(l) of this
Section
were reasonably foreseeable
b)
When issuing a recommendation described in subsection (a) of this
Section.
the
Agency
1)
Shall consider the appropriate conditions to impose in its
recommendation to grant a provisional variance, including the
following
A) Requiring the petitioner to monitor or assess
at regular
intervals intake and discharge water temperatures, to
visually inspect intake and discharge areas to assess
any
mortalities to
aquatic life, to
document the results of these
activities and
to submit the documentation to the Agency
after the provisional variance expires
B)
Requiring the petitioner to implement additional
monitoring activities other than those addressed in (A
above after consultation with the Agency: and to submit
the documentation to
the Agency after the provisional
variance expires
C) Requiring the petitioner to iniinediately
notify the Agency
if adverse environmental impacts
greater than those
identified in the application in response to 35 Ill.
Adm
Code 180.202(b)(6) resulting
from the provisional
variance are discovered:
and, if necessary, to develop a
plan to evaluate the nature and extent of the adverse
environmental
impacts, which shall be
submitted to the
Agency: and
2) Shall specifically address its
rationale for conditions imposed in
the recommendation
(Source:
Added at
—
Ill. Reg.
___________,
effective
___________
