ILLINOIS POLLUTION CONTROL BOARD
    September 6, 2001
    MIDWEST GENERATION EME, LLC,
    Petitioner,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY,
    Respondent.
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    PCB 02-28
    (Provisional Variance - Water)
    ORDER OF THE BOARD (by C.A. Manning):
    On September 4, 2001, the Illinois Environmental Protection Agency (Agency)
    recommended that the Board grant a 45-day provisional variance to Midwest Generation
    EME, LLC (Midwest Generation). The provisional variance from the total suspended
    solid effluent standards at 35 Ill. Adm. 304.124(a) would allow Midwest Generation to
    retire three existing intra-plant sluice water transport lines and to replace them with two
    new larger lines and associated valves at its generation station located in Joliet, Will
    County. The Agency states that failure to grant the provisional variance would impose an
    arbitrary or unreasonable hardship on Midwest Generation.
    Section 35(b) of the Environmental Protection Act (415 ILCS 5/35(b) (2000))
    provides:
    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) (2000);
    see also
    35 Ill. Adm. Code
    104.302.
    A provisional variance lasts for no more than 45 days, but the Board can extend the time
    period up to an additional 45 days on the Agency’s recommendation. Provisional
    variances granted to one person cannot exceed a total of 90 days during any calendar
    year. 415 ILCS 5/36(c) (2000); 35 Ill. Adm. Code 104.308.
    The Board grants Midwest Generation a provisional variance from 35 Ill. Adm.
    Code 304.124(a) subject to the following conditions:
    1.
    The term of this provisional variance begins when Midwest Generation
    notifies the Agency that the construction has started and continues for a
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    period of 45 days from the date of notification or until completion of the
    construction, whichever occurs earlier.
    2.
    During the provisional variance period, Midwest Generation must meet a
    total suspended solids limit of 50 mg/l monthly average and a sampling
    frequency of once per week using a 24-hour composite.
    3.
    Midwest Generation shall notify Allen Anderson of the Agency’s Des
    Plaines regional office at the start of construction and completion of
    construction concerning the replacement of the intra-plant discharge pipes
    by telephone at 847/294-4000. Written confirmation of each notice must
    be sent within five days to the following address:
    Illinois Environmental Protection Agency
    Bureau of Water – Water Pollution Control
    Attention: Dan Ray
    1021 North Grand Avenue East
    P.O. Box 19276
    Springfield, Illinois 62794-9276
    4.
    Monitoring results of all testing and dates shall be tabulated and submitted
    to the Agency for the provisional variance period and sent to the address
    indicated above.
    5.
    Midwest Generation must complete the permitted construction as
    expeditiously as possible. During the provisional variance period,
    Midwest Generation must operate the facility to produce the best effluent
    practicable and must provide full treatment to the maximum amount of
    flow as possible.
    6.
    Petitioner must continue to monitor and maintain compliance with all
    other parameters and conditions specified in its National Pollutant
    Discharge Elimination System permit IL0002216.
    IT IS SO ORDERED.
    If Midwest Generation chooses to accept this provisional variance, it must execute
    a Certificate of Acceptance of all terms and conditions of this provisional variance and,
    within ten days after the date of the above order, forward the executed certificate to the
    Agency at the above address. The form of the certificate is as follows:
    CERTIFICATE OF ACCEPTANCE
    Midwest Generation accepts and agrees to be bound by all terms
    and conditions of the Pollution Control Board’s September 6, 2001 order
    in PCB 02-28.
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    ______________________________________
    Petitioner
    ______________________________________
    Authorized Agent
    ______________________________________
    Title
    ______________________________________
    Date
    Section 41(a) of the Environmental Protection Act provides that final Board
    orders may be appealed directly to the Illinois Appellate Court within 35 days after the
    Board serves the order. 415 ILCS 5/41(a) (2000);
    see also
    35 Ill. Adm. Code
    101.300(d)(2), 101.906, 102.706. Illinois Supreme Court Rule 335 establishes filing
    requirements that apply when the Illinois Appellate Court, by statute, directly reviews
    administrative orders. 172 Ill. 2d R. 335. The Board’s procedural rules provide that
    motions for the Board to reconsider or modify its final orders may be filed with the Board
    within 35 days after the order is received. 35 Ill. Adm. Code 101.520;
    see also
    35 Ill.
    Adm. Code 101.902, 102.700, 102.702.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the
    Board adopted the above order on September 6, 2001, by a vote of 7-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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