RECEIVED
CLERK’S OFFICE
APR
1
3
2001
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution
Control Board
IN THE MATTER OF:
)
RO1%/
PROVISIONAL VARIANCES FROM
)
(Rulemaking-Water)
WATER TEMPERATURE STANDARDS:
)
PROPOSED NEW
35
Ill. Adm. Code 301.109
)
)
STATEMENT OF REASONS
The Illinois
Environmental Protection Agency (“Illinois EPA”) hereby submits its
Statement of Reasons for the above-captioned proceeding to the Illinois Pollution Control
Board
(“Board”) pursuant to Section
27
of the
Illinois
Environmental
Protection
Act
(“Act”),
415
ILCS
5/27
(1998), and 35 Ill.
Adm. Code
102.200 and
102.202.
I.
Statutory Basis
In 1980 the Illinois General Assembly amended
Title IX of the Act to
allow for
the use ofprovisional variances as an additional form ofshort term regulatory relief by
the regulated community.
Public Act
81-1442.
The Act provides that (to the extent
consistent with applicable provisions ofthe Clean Water Act):
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 ofthe Board, or with any pennit
requirement would impose an arbitrary or unreasonable hardship.
Such
provisional variances shall be issued within 2 working days ofnotification
from the Agency.
415
ILCS
5/35(b)(1998).
Section 36(c) ofthe Act further provides that:
Any provisional variance granted by the Board pursuant to subsection (b)
ofSection
35 shall be for a period oftime not to exceed 45 days. Upon
receipt of a recommendation from the Agency to extend this time period,
the Board
shall grant up to an additional 45 days. The provisional
variances granted to any one person shall not exceed
a total of 90 days
during any
calendar year.
415
ILCS
5/36(c)(1998).
In addition, Section 26 ofthe Act confers procedural
rulemaking authority upon the Board and Section 27 ofthe Act confers substantive
rulemaking authority upon the Board.
415 ILCS
5/26,
27(1998).
The contents ofthis
regulatory proposal are within these general rulemaking powers ofthe Board.
II.
Regulatory Proposal
A.
Purpose
and Effect ofRegulatory Proposal
This proposal
is
designed to implement Title IX
of the
Act.
The
language
of
proposed
Section 301.109
must
also
be read in conjunction with the
Illinois EPA’s
procedural
rules for processing provisional
variance
applications found in
35
Ill.
Adm.
Code Part
180.
See
Exhibit B.
The proposal sets forth how the Illinois EPA will exercise
its
provisional variance
authority
consistent with the
Act and
the Illinois
EPA’s
regulations
when evaluating
requests
for provisional
variances
from water temperature
standards.
The Illinois EPA
is
also
providing
guidance
for the regulated community
regarding the
minimum
appropriate conditions
to
be
included
in
thermal
provisional
variances to ensure that no
environmental harm will result from
the provisional variance
from the thermal limits.
Finally,
the proposal places the
substantive
requirement upon
provisional variance recipients to address any
environmental
damage that results or may
result from the provisional variance.
This proposed new Section places several requirements upon the contents ofany
Illinois EPA recommendation to the Board under Section
3
5(b)
ofthe Act from water
temperature requirements. The recommendation must specifically address each ofthe
informational contents required of a provisional variance application under 35
Ill. Adm.
2
Code
180.202(b).
The relevant informational requirements for provisional variance
applications are:
•
Astatement identifying the requirement from which the variance is requested;
• A descriptionofthe business or activity for which the variance is requested;
• The quantity andtypes ofmaterials used in the process or activity for which the
variance is requested;
• The quantity, typesand nature of materials to be discharged and the identification
ofthe receiving waterway;
• An assessmentofany adverse environmental impacts which the variance may
produce;
•
A statement explaining why compliance with the requirement imposes arbitrary
and unreasonable hardship;
•
A description ofthe proposed methods and a timetable for achieving compliance;
•
A discussion ofalternate
methods ofcompliance
and the factors influencing the
choice to apply for a provisional variance;
•
A statement of the period, not to exceed 45 days, for which the variance is
requested;
•
A statement ofwhether the applicant has been granted any provisional Yariances
withinthe calendar year, and the terms and duration ofsuch variances;
•
A statement regarding the applicant’scurrentpermit
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.
In addition to
addressing
all
of the above requirements, this
proposal
requires the
Illinois
EPA to
specifically
address the foreseeability
of
weather and operational
conditions that led to the provisional
variance request; and the Illinois EPA must identify
any provisional variances the Board has issued
to the applicant for the past five
years
from
any
water temperature standard.
The Illinois EPA
Recommendation
must
also
address the Illinois
EPA’s 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
I
3
temperature
requirement.
The
conditions
contained in
301.1 09(b)(2), as they
would
appear in a provisional variance recommendation from the Illinois EPA:
1.
The petitioner shall continuously monitor intake,
discharge, and receiving
water temperature and visually inspect intake
and discharge areas three times
daily to assess any mortalities to fish and other aquatic life;
2.
The petitioner shall document environmental conditions during the term ofthe
provisional variance, including the activities described in
1 above, and
submit
the documentation to the Agency and the Department ofNatural Resources
within 30
days after the provisional
variance expires;
3.
The petitioner shall immediately implement biological activities to
characterize how fish and other aquatic life respond to the thermal conditions
resulting from the provisional variance; document these activities; and submit
the documentation to the Agency and the Department ofNatural Resources
within 30 days after the provisional variance expires;
4.
The petitioner shall immediately notify the Agency and the Department of
Natural Resources ofany unusual conditions, including mortalities to fish or
other aquatic
life; immediately take action to remedy the problem;
investigate
and document the cause and seriousness ofthe unusual conditions while
providing updates to the Agency and the Department ofNatural Resources
as
changes occuruntil normal conditions return; notify the Agency and the
Department ofNatural Resources
when normal conditions return; and submit
the documentation to the Agency the Department ofNatural Resources within
30 days after normal conditions return; and
5.
The petitioner shall 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.
In most cases, these proposed conditions would impose additional monitoring and
reporting
requirements
on
provisional
variance recipients beyond the
monitoring
and
reporting
required
elsewhere in the Board’s rules or
National
Pollutant Discharge
Elimination
System
(“NPDES”) permitting
requirements.
The
additional
monitoring
requirements
include continuous
monitoring
of intake,
discharge,
and receiving water
temperatures and monitoring of biological
and environmental
conditions.
The reporting
4
requirements
include the requirement to document
and report to the Illinois
EPA and/or
the Department ofNatural Resources
the results ofthese additional monitoring activities.
In addition, Condition
5
requires petitioners to develop and implement a plan to address
any adverse environmental impacts that may result from the thermal provisional variance.
B.
Facts in Support
The Environmental Protection Act was
amended
in
1979
to allow
for provisional
variances upon notification from the Illinois EPA 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.
On June
12,
1981,
procedures and criteria were adopted for reviewing applications for provisional variances.
See
Exhibit
B.
These rules have provided the applicants with
documentation
and
clarification of the application
requirements
as well as Illinois
EPA
application
review
criteria.
In
general,
these rules have worked well. However, given the knowledge
and
experience that comes with 20 years ofconsidering requests for provisional variances, the
Illinois EPA is proposing additional criteria in regard to provisional variances from water
temperature standards.
The combination ofa severe drought and extremely hot weather, low river flows,
elevated ambient river temperatures and
decreased heat dissipation have created several
emergency situations
where
power companies
have been unable to meet their NPDES
permit
conditions
for the thermal
component
of their
discharges and
also
meet their
obligations to supply
reliable power to their customers.
Since
1988, the Illinois EPA has
received
23
formal requests for provisional variances from water temperature
standards.
As
indicated in the attached Exhibit
A,
the Illinois
EPA recommended the granting of
5
provisional
variances (subject to certain conditions) for 20 ofthese requests.
As noted in
Exhibit
A, five
of the approved requests were for extensions
of previously granted
variances.
One thermal provisional
variance request was denied by
the Agency and
the
petitioners
withdrew
two
others.
In
addition, numerous
other
informal inquiries
have
been made to the Illinois EPA regarding the merits
of a thermal provisional
variance
under consideration prior to formal submission.
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.
See
Exhibit
A.
Only 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. It is
also important to
note that the
Dresden
Station
had thermal
provisional
variance needs in
1988, 1992,
1994,
1996,
1997 and
1998. This history was evidence ofan 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.
In
addition
to taking advantage of the provisional
variance,
the Newton
Station suffered
6
major operational problems because ofthe prolonged hot period and apparently exceeded
maximum discharge levels causing an extensive fish kill
in the cooling lake. This incident
further supported the apparent need for additional cooling capacity at Newton Station.
After the emergency conditions ofthe summer of 1999 had
subsided, the
Illinois
EPA notified the power companies (Commonwealth Edison
and
Ameren-CIPS) of the
need to develop more proactive plans to avoid the reoccurrence of violations and the need
for variances.
Both
of these
companies
have subsequently installed additional
cooling
systems
to reduce the possibility
of
permit
violations.
Ameren-CIPS installed
supplemental
cooling
ponds
at the 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 ofheat and
drought
may
still
create a situation where
relief from current permit conditions
may
be
needed in order to prevent a serious failure of the power grid.
Therefore,
the conditions
described
above
have been
proposed
in
Section
301 .109(b)(2)
in
an
effort to further
clarify and provide up-front documentation to
any
future
petitioner on
the requirements
for a provisional variance from any water temperature standard.
C.
Technical Feasibility
and Economic Justification
This
proposal
places
no
new
regulatory
requirements under the
State’s water
pollution control regulations; it merely clarifies 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
7
provisional
variance application and the minimum
conditions
that
would
be
imposed
upon grant of such a provisional
variance.
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 ofthe provisional variance.
It is
anticipated that this proposal will ease some of the administrative burden on
the
resources
required by the Illinois EPA for its
provisional
variance request review
process based
on receiving more complete applications and issuing fewer
requests
for
additional
information.
There may be
some
incremental
resources required for the
preparation and submittal of more detailed recommendations to the Board and the review
of a
small
number
of additional
monitoring reports pursuant to
provisional variance
conditions.
This
proposal, in most aspects, clarifies existing
policy
which,
in
turn,
is
expected to lessen the economic burden on the regulated community by creating certainty
about what is required to be included in provisional variance applications.
The
technical feasibility
of
continuous monitoring
of
intake,
discharge,
and
receiving
water
temperatures
has
been well documented in the
past.
The
additional
requirements for visual inspections, environmental monitoring and biological monitoring
are also
clearly technically feasible.
The requirement to develop and implement a plan to
address any
adverse environmental impact ofthe provisional
variance is
also technically
feasible
and
economically reasonable for
facilities
seeking regulatory
relief
from
a
thermal limit.
8
D.
Affected Facilities
This proposal could potentially impact any facility subject to a water temperature
standard or permit condition for whom
compliance
with that standard on a
short
term
basis would impose an arbitrary and unreasonable hardship.
It is likely this proposal will
only
impact
electric
utilities that face the
confluence
of increased demand for
power
production, low flow rates, and extreme warm weather conditions in the summer months.
II.
Synopsis of Testimony
During the Board’s proceedings
in this matter the Illinois EPA will present
testimony
in
support of the
proposed
rulemaking.
Staff from the
Bureau of Water’s
Compliance Assurance
Section
will
testify
to the
provisional
variance
application
process, the
provisional
variance
recommendation process, and other
technical
matters
related to this proposal.
IV.
Supporting Documents
Exhibit
A:
Provisional
Variance
Requests
by
Temperature Requirements
Exhibit B:
35 Ill. Adm. Code Part 180
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Utilities
from
Water
By:
~
Deborah J. Wi4~’ams
Assistant Counsel
Division ofLegal Counsel
9
IEPA Exhi
1~it
N
0.A..
Thermal Provisional Variances
Date Rec’d
By Agency
PCB
No
Illinois Power
—
Clinton
Illinois Power
—
Clinton
Commonwealth Edison
—
Dresden
Commonwealth Edison
—
Quad City
Commonwealth Edison
—
Quad City
Commonwealth Edison
—
Dresden
Commonwealth Edison
—
Dresden
Corn Ed
—
Fisk, Will Co, Joliet, Crawford
Corn Ed
—
Fisk, Will Co., Joliet, Crawford
CIPS
Coffeen
CIPS Newton
Corn Ed
—
Fisk, Will Co., Joliet, Crawford
Commonwealth Edison
—
Dresden
Corn Ed
—
Fisk, Will Co., Joliet, Crawford
Commonwealth Edison
—
Dresden
Commonwealth Edison
—
Dresden
Commonwealth Edison
—
Dresden
Commonwealth Edison
—
Dresden
Commonwealth Edison
—
Dresden
CIPS Newton
Kincaid LLC
Commonwealth Edison
—
LaSalle
Commonwealth Edison
—
Dresden
07/02/88
07/25/88
08/09/88
08/17/88
07/10/89
11/16/92
03/04/94
06/21/95
07/31/95
08/25/95
08/25/95
08/28/95
02/26/96
10/09/96
07/18/97
10/27/97
07/17/98
08/27/98
07/26/99
07/28/99
07/30/99
07/30/99
09/13/99
88-118
88-128
88-129
89-115
92-181
94-104
95-183
96-26
96-5
1
96-188
97-72
98-20
98-64
99-17
99-39
00-18
00-21
00-20
00-19
00-48
08/04/88
08/18/88
08/18/88
07/13/89
11/19/92
03/31/94
06/29/95
08/03/95
09/07/95
03/07/96
10/17/96
07/24/97
11/06/97
07/23/98
09/03/98
08/05/99
08/05/99
08/05/99
08/05/99
02/23/99
Deny
Grant
Grant
Grant
Grant
Grant
Grant
Grant
Grant/Extension
Withdrawn
Withdrawn
Grant/Extension
Grant
Grant
Grant
Grant/Extension
Grant
Grant/Extension
Grant
Grant
Grant
Grant
Grant/Extension
Facility
Date of
PCB Order
Decision
JEPA Exhibit No.
(3
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE A.
GENERAL PROVISIONS
Ch. II.
ENVIRONMENTAL PROTECTION AGENCY
PART 180
PROCEDURES AND CRITERIA FOR REVIEWING
APPLICATIONS FOR PROVISIONAL VARIANCES
Table of Contents
SUBPART A:
INTRODUCTION
180.101
Purpose
180.102 Definitions
SUBPART B:
APPLICATIONS FOR PROVISIONAL VARIANCES
180.201
180.202
180.203
180.204
Applicants
Requirements of the Written Application
Preliminary Review of the Application
Emergency Applications
SUBPART C:
AGENCY DECISION MAKING
180.301
180.302
180.303
Criteria for Reviewing Applications
Final Agency Action
Recommendation to the Board
SUBPART D:
EXTENSIONS OF PROVISIONAL VARIANCES
180.401
Applications for Extensions of Provisional Variances
180.402
Criteria for Reviewing Applications for Extensions of
Provisional Variances
Authority Note:
Authorized by and implementing Section
Environmental
Protection Act (Ill.
Rev.
Stat.
1979,
Ch.
1035(b).
35(b)
of the
111
1/2,
par.
Source Note:
5
Ill. Reg.
24
June
12.
1981
effective
June 2.
1981
JUN
2,
1981
Printed
on
Recycled
Paper
PROCEDURES AND CRITERIA FOR REVIEWING
APPLICATIONS FOR PROVISIONAL VARIANCES
SUBPART A:
INTRODUCTION
Section 180.101
Purpose
These rules establish the procedures and the criteria which the Agency
will use to review applications and to make recommendations to the
Pollution Control Board (Board) for granting provisional variances.
Section 35(b) of the Act states that such provisional variances shall
be
granted by the Board “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.”
Section 180.102
DefinitIons
Terms used in these rules are defined as in the Act and in the
regulations of the Board.
SUBPART B:
APPLICATIONS FOR PROVISIONAL VARIANCE
Section 180.201
Applicants
a)
Any person subject to the Environmental Protection Act and to
the rules or regulations, orders, or permit requirements of the
Board,
and who has not been granted provisional variances in
excess of 90 days during the calendar year, may apply for a
provisional
variance.
b)
Applications may be submitted pursuant to either Section 180.202
or Section 180.204 of these rules.
Section 180.202
Requirements of the Written Application
a)
Two copies of the application shall be sent to:
Illinois Environmental Protection Agency
Division of (Air Pollution Control, Water Pollution Control,
Land/Noise Pollution Control, Public Water Supplies,
as
(appropriate)
2200 Churchill Road
Springfield, IllInois 62706
b)
The application shall
include:
1)
A statement identifying the regulations, Board Order,
or
permit requirements from which the variance is requested;
2)
A description of the business or activity for which the
variance is requested,
Including pertinent data on location,
size, and the population and geographic area affected by the
applicant’s operations;
3)
The quantity and types of materials used in the process or
activity for which the variance is requested,
as appropriate;
4)
The quantity,
types and nature of materials or emissions to
be discharged, deposited or emitted under the variance,
and
the identification of the receiving waterway or land, or the
closest receiving Class A and Class B land use, as
appropri ate;
5)
The quantity and types of materials
in drinking water
exceeding the allowable content, or other pertinent facts
concerning variances from the Board’s public water supply
regulations.
6)
An assessment of any adverse environmental
impacts which the
variance may produce;
7)
A statement explaining why compliance with the Act,
regulations or Board Order imposes arbitrary and unreasonable
hardship;
8)
A description of the proposed methods to achieve compliance
with the Act, regulations or Board Order, and a timetable
for achieving such compliance;
9)
A discussion of alternate methods of compliance and of the
factors influencing the choice of applying for a provisional
van ance;
10) A statement of the period, not to exceed 45 days, for which
the variance
is requested;
11) A statement of whether the applicant has been granted any
provisional
variances within the calendar year,
and the
terms and duration of such variances;
12) A statement regarding the applicant’s current permit status
as related to the subject matter of the variance request;
13) Any Board orders
in effect regarding the applicant’s
activities and any matters currently before the Board in
which the applicant is a party.
Section 180.203
Preliminary Review of the Application
a)
Within five working days of receipt of the application, the
Agency shall make a determination to accept the application for
review; to reject the application as incomplete,
based on the
requirements of Section 180.202; or to reject the application as
outside the scope of relief provided by provisional variances,
applying the criteria in Section 180.301.
b)
If the application
is rejected, notice of such rejection shall
be given to the applicant by certified mail,
return receipt
requested.
This notice of rejection shall
include an
explanation of the Agency’s decision.
1)
Upon receipt of a notice of rejection for incompleteness,
the applicant may submit a complete application, which will
initiate the review process again.
-3-
JUN
2,
1981
2)
Upon receipt of a notice of rejection as not within the
scope of relief of provisional variances,
the applicant may
apply to the Board for a variance pursuant to Section 35(a)
of the Act.
c)
If the application is accepted as complete and within the scope
of relief provided by provisional variances,
review shall
proceed pursuant to Subpart C.
The Agency shall give notice to
the Board of written applications which are accepted.
Section 180.204
Emergency Applications
Under emergency circumstances due to causes such as equipment
malfunctions, extreme weather conditions or other unforeseeable events,
the Agency will consider requests for provisional variances according to
the following procedures.
a)
The applicant may notify the Agency of circumstances which it
believes justify granting a provisional variance on an emergency
basis.
b)
The Agency shall
investigate the circumstances of the request.
c)
Based on the information obtained from the applicant and the
investigation,
the Agency may recommend that the Board grant a
provisional variance.
d)
The Agency may notify the applicant that certain information
described in subsection 180.202(b) must be submitted in writing
in support of the request for a provisional variance.
e)
The applicant shall
provide the information required under
(d)
within ten working days of notification from the Agency.
SUBPART C:
AGENCY DECISION MAKING
Section 180.301
Criteria for Reviewing Applications
a)
Applications for provisional variances will be accepted for
review when all of the following circumstances exist:
1)
The requested relief is short-term,
i.e.,
not exceeding 45
days;
2)
The applicant would experience arbitrary and unreasonable
hardship
if required to wait for a variance pursuant to
Section 35(a) of the Act; and
3)
The applicant has not been granted provisional variances
exceeding 90 days within
the. calendar year.
For purposes
of calculating the 90 days during any calendar year, the
number of days of provisional variances granted by the
Board shall
be totaled, regardless of when compliance was
actually achieved by the applicant.
4-
b) In determining whether to recommend that the variance be
granted, the Agency will evaluate the information provided
in
the application to meet the requirements of Section 180.202(b)
or 180.204.
Particular consideration will be given to the
following information:
1)
Inclusion of a definite compliance program;
2)
Evaluation of all
reasonable alternatives for compliance; and
3)
Demonstration that any adverse impacts will be minimal.
Section 180.302
Final Agency Action
Within 30 days of receipt of an application for a provisional
variance
or for an extension of a provisional
variance, the Agency shall
either
recommend that the Board grant the variance or notify the applicant and
the Board that the variance is denied using the procedures of Section
180.203(b).
Section 180.303
Recommendation to the Board
a)
The Agency shall
submit a recommended order to the Board by
personal
service or by certified mall,
return receipt
requested.
If a written application was submitted, the Agency
shall provide a copy to the Board.
The Agency may submit a
statement explaining or justifying its recommendation.
b)
The recommended order shall
state the number of days for which
the variance should be granted,
any conditions to be imposed,
and a draft certification of acceptance.
SUBPART 0:
EXTENSIONS OF PROVISIONAL VARIANCES
Section 180.401
Applications for Extensions of Provisional
Variances
An application for extension of an order granting a provisional
variance
shall
include:
a)
Information as stated in Section 180.202(b)(7) through (10);
b)
Any new information which modifies prior information given to
satisfy Section 180.202(b).
Section 180.402 Criteria for Reviewing Applications for Extensions of
Provisional Variances
The Agency shall
review requests for extensions of provisional variances
and make recommendations to the Board
in conformity with Subpart C of
these rules.
(filed
JUN 2.
1981
,
effective
JUN 2.
1981
)
-5-
JUN 2,
1981
