ILLINOIS POLLUTION CONTROL BOARD

December 16, 1993

CITY OF SPRINGFIELD,     

)

Petitioner,

v.

)

PCB 93—135

)

(Variance)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

OPINION .AND ORDER OF THE BOARD (by N. Nardulli):

This matter is before the Board upon filing by the City of

Springfield (“Springfield” or “the City”) of a Petition for

Variance! (“Pet.”) on July 22, 1993. Springfield requests

variance for five years from 35 Ill. Adm. Code 302.206 as that

section relates to dissolved oxygen (“DO”) in the Sangainon River.

Section 302.206 requires that DO shall not be less than 6.0 mg/i—

during at least 16 hours of any 24—hour period, nor less than 5.0

mg/l at any time. Also on July 22, 1993, Springfield requested

leave to incorporate materials from a previous Board docket, PCB

88-113. On August 5, 1993, the Board granted leave to

incorporate the materials, but emphasized that the Board had not

determined the materials were relevant.

Springfield wishes to build temporary dams on the Sangamon

River during extreme drought conditions. In order to get Army

Corps of Engineer approval for the dams, the Agency must certify

that no water quality standards will be violated. Thus,

Springfield believes a variance from the DO standards is

necessary to secure Agency certification and ultimately Army

Corps approval for construction of temporary dams in the Sangainon

River.

On September 16, 1993 the Illinois Environmental Protection

Agency (“Agency”) filed its recommendation (“Rec.”) that the

requested relief be granted subject to conditions. Springfield

responded with an objection to the Agency condition requiring

Springfield to use clarified ash pond water to lessen the

necessity of the dams.

Hearing in this matter was waived by City of Springfield and

no hearing was held.

Springfield alternatively characterizes the petition as a

“Petition for Variance” (Pet. at 1) or as an “Extension of

Variance” (Pet. at 8, 9). The Board will construe this petition

as a petition for extension of variance.

2

BACKGROUND

Springfield owns and operates water and electric utilities

which provides service to the City of Springfield and adjacent

communities and areas. Water utilities are routinely provided to

the City of Springfield, the Villages of Chatham, Grandview,

Jerome, Leland Grove, Rochester and Southern View, Sugar Creek,

and Sherman-Williamsville Public Water Districts, and to certain

unincorporated areas adjacent to Springfield. (Pet. at 1).

Springfield anticipates that the Village of Loami will become a

wholesale water customer by late 1993 or early 1994. The service

area encompasses approximately seventy square miles and includes

a population of about 142,000. (Rec. at 1). The long-term

average potable water pumpage is approximately 21 million gallons

per day. (Rec. at 1).

Pursuant to the variance granted by the Board in PCB 88-113,

Springfield was required to submit to the Agency a firm schedule

detailing the planning and implementation time frame for

obtaining a long-term water supply within one year after

receiving the variance. Springfield states that this condition

has been satisfied by the submittal of a joint application to the

United States Army Corps of Engineers, the Agency, and the

Illinois Department of Transportation, dated July 27, 1989, for a

permit under Section 404 of the Clean Water Act for placement of

a dam in Horse Creek, Sangamon County, Illinois, and creation of

a lake known as Hunter Lake. (Pet. at 2).

PRELIMINARY MATTERS

In PCB 88-113, the variance approved by the Board laid the

groundwork for Springfield to gain Army Corps approval for the

construction of temporary dams as an emergency measure during

“extreme drought conditions.” During the pendency of the

variance, circumstances never reached the level of “extreme

drought condition” and as a result, the dams were never

constructed. Likewise, Springfield is not presently experiencing

drought conditions and has no immediate need for the dams.

Although Springfield does not articulate a justification for the

instant petition, the Board concludes that Springfield makes this

request in order to act quickly to gain Army Corps approval in a

future drought emergency.

It is well settled that the Board will not grant unnecessary

variances. (SCA Services v. IEPA 71 Iii. App.3d 715, 389 N.E. 2d

953; North Aurora v. IEPA PCB 89-66; Geneva v. IEPA PCB 89-107).

However, the Board will proceed with a consideration of this

matter on its merits despite the absence of a showing of

immediacy, but only with recognition of the fully developed

record and our opinion and order in PCB 88-113. The Board takes

this course of action in light of the extraordinary hardship

demonstrated by Springfield in a previous, fully considered

proceeding before the Board.

REGULATORY FRANEWORK

Section 36(b) of the Act

allows the Board to grant an

extension of variance

where satisfactory progress has been

demonstrated.

Section 36(b) states:

Section 36 Variances

b. Except as provided by Section 38 of this Act, any

variance granted pursuant to the provisions of this

Section shall be granted for such period of time, not

exceeding five years, as shall be specified by the

Board at the time of the grant of such variance, and

upon the condition that the person who receives such

variance shall make such periodic progress reports as

the Board shall specify. Such variance may be extended

from year to year by affirmative action of the Board.

but only if satisfactory progress has been shown.

(emphasis added)

A petition for an extension of a variance is made pursuant

to 35 Ill. Adin. Code 104.123. 35 Ill. Adm. Code 104.123 states:

Section 104.123 Extension of Prior Variance

a) A petition to extend a prior variance granted by the

Board shall be commenced by filing a petition for

variance with the Agency and the Board in accordance

with the requirements of Sections 104.120 and 104.121.

To the extent that the information required by Sections

104.120 (Petition for Variance) and 104.121 (Contents

of Variance Petition) has been included in the prior

petition for variance for which extension is sought, a

resubmission of that information shall not be required

provided that the petition shall request the

incorporation of the record, opinion and order in the

prior proceeding into the new petition.

b) A petition to extend a prior variance shall be subject

to all of the requirement of this Part except as

provided in subsection (a).

Thus under Section 104.123, a petitioner seeking an

extension of variance does not have to resubmit the information

required by Sections 104.120 and 104.121 to the extent that that

information was included in a prior proceeding and Board has

allowed the incorporation of the record from the prior

proceeding. The incorporation of a record from a prior

proceeding does not free a petitioner from the pleading

4

requirements found in Sections 104.120 and 104.121.

Springfield seeks a variance from 35 Ill. Adm. Code 302.206,

which states:

Section 302.206  

Dissolved Oxygen

Dissolved oxygen (STORET number 00300) shall not be less

than 6.0 mg/l during at least 16 hours of any 24 hour

period, nor less than 5.0 mg/i at any time.

In determining whether any variance is to be granted, the

Act requires the Board to determine whether a petitioner has

presented adequate proof that immediate compliance with the Board

regulations at issue would impose an arbitrary or unreasonable

hardship (415 ILCS 5/35(a) (1992)). Furthermore, the burden is

upon the petitioner to show that its claimed hardship outweighs

the public interest in attaining compliance with regulations

designed to protect the public (Willowbrook Motel v. Pollution

Control Board (1977), 135 Ill.App.3d 343, 481 N.E.2d 1032). Only

with such showing can the claimed hardship rise to the level of

arbitrary or unreasonable hardship.

A further feature of a variance is that it is, by its

nature, a temporary reprieve from compliance with the Board’s

regulations (Monsanto Co. v. IPCB (1977), 67 I1i.2d 276, 367

N.E.2d 684), and compliance is to be sought regardless of the

hardship which the task of eventual compliance presents an

individual polluter 

(a.).

Accordingly, except in certain

special circumstances, a variance petitioner is required, as a

condition to grant of variance, to commit to a plan which is

reasonably calculated to achieve compliance within the term of

the variance.

The Board may grant an extension of variance where

satisfactory progress has been demonstrated. (Ekco Glaco v. IPCB

(1989), 186 Ill.App.3d 141, 542 N.E.2d 147.) In addition, it has

been past Board practice to grant an extension an expired

variance where satisfactory progress has been demonstrated.

(See, Scott Air Force Base v. IEPA (May 10, 1990) PCB 88—69, 111

PCB 09 (extension granted after expiration of original variance

upon the showing of satisfactory progress and where the duration

of the extension was unusually short); Rowe Foundry v. TEPA

(February 23, 1989) PCB 88-21, 96 PCB 147 (extension gr~ted

after expiration of original variance upon showing of

satisfactory progress); City of Farmington v. IEPA (February 20,

1985) PCB 84-166, 61 PCB 70 (extension of expired variance

granted where lack of compliance was beyond the control of

petitioner and where there were no reasonable alternatives);

Midwest Solvents v. IEPA (April 5, 1984) PCB 84—5, 59 PCB 251

(extension of expired provisional variance granted where diligent

progress was demonstrated and adverse weather conditions

interfered with completion of work project).)

HARDSHIP

As stated earlier, neither party detailed the hardships that

Springfield would incur if the variance is denied. The Agency

summarized information from PCB 88-113 and added:

Petitioner does not elaborate on any additional hardships

that may be imposed as a result of the continued compliance

with the standard. To the extent that Lake Springfield’s

water supply has been replenished in recent years as a

result of adequate rainfall events, petitioner should

provide any additional information on hardship to the Board

for the record.

(Rec. at 2.)

Springfield responded that the hardship remains the same and that

it was merely coincidence that the original request came at a

time when the City was experiencing drought conditions. (Response

to Rec. at 3.) Because both parties rely on the record from PCB

88-113, the Board will quote that order at length below:

Springfield’s instant request is prompted most recently by

the severe drought conditions of 1987 and 1988, and

projected continued low water levels in Lake Springfield for

1989. The long—term average annual range of the level of

the Lake is about 17 feet, between approximately 557.9 and

559.6 feet MSL; highest levels typically occur in June and

the lowest in November. Although lake levels were normal as

recently as April 1988, by the end of September 1988 they

were about 2.75 feet below the normal September datum of

558.3 feet. If this deficit is not made up by natural

winter and spring runoff into the Lake, Springfield fears

that it will be entering the critical summer season of 1989

with an unrecoverable deficit. Springfield estimates based

on the present rate of decline and the long—term trend of

seasonal variations, that the Lake level will be at an

elevation of about 552 feet by February 1, 1989, or

approximately 6 feet below the February norm. Moreover, any

repeat of a drought in the summer of 1989 will further

exacerbate the situation. Operating problems for the water

supply and electrical utilities (as opposed to recreation)

are predicted to occur at elevations of about 550 feet and

to become critical operational constraints at about 546

feet, including inability to pump water from the Lake to

supply water use needs, restrictions in the ability to

generate electrical power, and possible loss of the ability

to adequately treat waste waters. It is also noted that the

Lake 1 level actually fell to a low of 547.4 feet during the

drought of 1953-1955, at a time when water demands were

significantly less than at present.

In the summer of 1988 Springfield begin instituting both

voluntary and mandatory water conservation measures. The

initial trigger to this activity was deteriorating water

system pressures during peak hourly demands. Springfield

notes that on some occasions system pressure was reduced to

approximately half of the normal 50 psi, which endangered

firefighting ability among other matters. As conditions

worsened, the Springfield City Council ordered mandatory

water conservation via ordinance. Springfield estimates

that the conservation programs realized about a 16 decrease

in water consumption.

Besides the hardship that mandatory water conservation

itself imposes, Springfield points to other hardships that

could result if the water conservation programs are

insufficient to curtail water demands beyond available

supply. These include discontinuance of electric

generation, rationing of water, decrease in fire—fighting

capability, inability to serve critical public health

facilities (hospitals constitute some the largest individual

consumers of Springfield’s water supply), and economic loss

to businesses and their employees.

PCB 88-113; at 93 PCB 663-4; citations omitted throughout.

ENVIRONMENTAL IMPACT

Springfield

did not provide the Board with any data

concerning environmental impact. The Agency also did not address

the environmental impact of the requested variance. Instead, the

Agency states:

Environmental quality concerns arising from the construction

of temporary dams were previously addressed in the original

grant of variance. Because the present petition is merely

an extension, rather than modified or changed project, the

Agency believes a grant of variance containing the same

terms and conditions relating to environmental quality

should address this criterion.

(Rec. at 1.)

Because both parties rely on the record from PCB 88-113, the

Board will quote that order at length below.

Presence of the dams during the cold weather months2 should

have relatively little likelihood of inducing DO problems

either upstream or downstream from the dams. Oxygen

solubility is inversely proportional to water temperature,

which allows the DO of cold water, unless the water is

severally disturbed by pollution, to be well above standard.

A different DO circumstance prevails during the warm weather

months. Then the typically elevated water temperatures can

limit DO solubility to near that of the DO standard.

Moreover, algal populations tend to be higher in warm

waters, and algal respiration alone can produce sufficient

oxygen demand to cause DO concentrations to fall near or

below the standard. A further strain can be placed on the

DO if the stream discharges are also low due to the lower

rates of reaeration which are associated with sluggish

stream flow.3 Thus, most of the DO concern regarding

Springfield’s proposal is centered on the possible negative

impact at times of warm weather low—flow.

Data collected by both Springfield and the Agency do show

that the DO standard in the Sangamon River is not now

consistently met at warm weather low—flow. The detailed

cause of this circumstance is not resolvable from the

instant record. However, there is substantial reason to

believe that the cause is related to natural conditions of

temperature, biotic activity, and low flow, rather than to

the impact of pollution. Lowest observed DO concentrations

in fact occur when the waters are warmest, the algal net

consumption of oxygen is at its maximum, and flows are low.

It is to be noted in this context that a large

portion of the historical diversion of the South Fork into

Lake Springfield has occurred during November through March.

The record does not indicate whether this pattern would

persist if the Sangamon River project were undertaken.

~ A modeling study conducted by the Illinois Natural

History Survey, at the request of Springfield, indicates

that at water temperatures typical of warm weather months

Sangatnon River discharges would have to be on the order of

237 cfs to allow continuous maintenance of even 5.0 mg/l DO.

Although Springfield contends that the modeling results are

at odds with empirical data (R. at 76, 261—265; Exh. 21), it

notes that the 237 cf 

is approximately 6 times greater than

the measured flow in the Sangainon under the drought

conditions experienced in summer 1988 (R. at 75). On this

basis Springfield concludes that natural low-flow conditions

are themselves sufficient to allow violations of the DO

standard (Petition, p. 14).

Springfield contends that emplacement of the two dams would

not cause a significant negative impact on the existing DO

situation. As evidence for this conclusion Springfield

notes that sampling in the pools upstream from two existing

channel dams on the Sangamon River in the vicinity of

Springfield during low river stages has not revealed any

endemic DO problems. Similarly, analysis (sic) of DO in the

pool formed by the existing South Fork dam have not revealed

any violations of the DO standard. Springfield further

suggests that the deeper water maintained in the proposed

pools would provide for a dampening of the large diel DO

swings witnessed in the shallow free-flowing reaches, and

thus inhibit rather than promote violations of the DO

standard in the new pools.

Springfield further contends that DO would not be adversely

affected below the proposed Sangamon River dam. Analyses

using a Streater-Pheips model indicate virtually no

difference in DO patterns at low flow with or without the

proposed dam. The exception exists for the river segment

immediately below the proposed Sangamon River dam, where DO

concentrations are projected to be higher under the with—dam

scenario due to reaeration at the dam. Springfield reaches

a similar conclusion based on diel field sampling.

Not withstanding 

(sic) 

its belief that the dams will not

adversely impact the DO of the Sangamon River, Springfield

does agree, as condition to grant of the variance, to

mitigate any fish kills associated with placement of the

dams. Additionally, Springfield agrees to conduct

monitoring of DO in the Sangamon River both upstream and

downstream of the proposed Sangamon River dam, and upstream

of the proposed South Folk dam while the dams are in place4.

A second environmental issue, not related to DO, concerns

whether a proposed 41 cfs minimum release rate would provide

for sufficient aquatic habitat downstream from the proposed

Sangainon River dam. The Illinois Department of

Conservation, Division of Water Resources, conducted an

instream flow analysis study which concludes that the

release rate would be sufficient to maintain aquatic

habitat, and would actually, for some species, increase the

amount of usable habitat. Springfield also contends that

the pools upstream from the dams would tend to provide

needed deep water refuge 

aring times of drought.

Springfield has also analyzed various methods of

instream aeration of the Sangamon pool (R. at 220-226;

Exh. 26), but has rejected these as impractical

(Petition, p. 9). The Agency concurs (Pet. Exh. 7).

9

Concern has also been expressed by communities located

downstream from Springfield that the modifications proposed

by Springfield for the Sangamon River would adversely affect

their water supply wells. Springfield counters that it

perceives no immediate impact on these water wells, and

notes that the program for continuous release of water from

the proposed dam should not decrease Sangamon River flows

below the existing 7-day, 10-year low-flow discharges.

PCB 88-113, 93 PCB 664-6 footnotes from original; citations

omitted throughout.

COMPLIANCE PLAN

The Board’s order in PCB 88-113 conditioned the granting of

the variance upon Springfield undertaking a schedule for an

alternative plan to eliminate the needed for the variance.

Springfield reports several measures taken in order to comply

with the Board’s order. Springfield has remodelled its water

demand forecast to gain a better picture of its water usage and

customers. During 1988, Springfield instituted a program to

provide free water saver kits to retail water customers. This

completely voluntary program has been issued to 7.5 of the

system’s total water customers. (Pet. at 3.)

The City has also adopted an ordinance authorizing the

construction of Lake Springfield II (Hunter lake). On July 26,

1989, Springfield applied for the necessary permits pursuant to

Section 404 of the Clean Water Act. In August of 1989,

Springfield issued $17,985,000 in water revenue bonds to fund

completion of the land acquisition for the Hunter Lake project.

Springfield has acquired 5,587 acres for the project prior to

1978. The original project area was 7,701 acres. Subsequent to

the issue of the water bonds, Springfield initiated acquisition

of the rest of the land needed for the project. Since 1978,

Springfield has acquired another 1,203 acres in 56 transactions.

Springfield has either reached tentative agreements for purchase

or has initiated eminent domain proceedings for the remaining

property. (Pet. at 5, 6.)

The United States Army Corp of Engineers determined the

Hunter Lake project “will have significant impact (both positive

and negative) in the project area and warrants preparation of an

Environmental Impact Statement to meet National Environmental

Policy requirements during the process of the permit

application.” In order to develop the EIS, Springfield has

completed certain engineering projects. In addition, Springfield

must demonstrate that the Hunter Lake project complies with the

National Historic Preservation Act. Springfield has completed

phase I of this three-phase process. In March of 1990,

Springfield entered into a contract with the Illinois Natural

History Survey to conduct research and develop conclusions

10

regarding the ecological components of the EIS review. By March

of 1993, the Natural History Survey had completed all aspects of

its work with the exception of the delineation of wetlands.

Springfield has also contracted with Sangamon Sate University,

the Springfield-Sangamon County Regional Planning Commission, the

Illinois Water Survey and Planning and Management Consultants,

Ltd. of Carbondale, Illinois, for other matters related to Hunter

Lake. (Pet. at 6.)

In addition, if the Corps of Engineers grants the permit for

Hunter Lake, Springfield will proceed with the detailed

engineering of the project, specifications of construction

projects, bid contracts and issue bonds to finance to work.

Springfield admits that the construction of Hunter lake will not

be complete by the expiration of the variance requested in this

proceeding. Thus it appears Springfield is actively working

towards the development of an alternative water source.

Springfield provided the Board with data concerning water

pumped from the South Fork Station from 1976 and from the

clarification pond since 1979. During the period 1976 

—

1992,

28,087 millions of gallons were pumped from the South Fork. Of

this total, 13,981 million gallons were pumped during the drought

event of 1987-89 (49.8). Similarly, during the same drought

event, 737 million gallons were recirculated from the

clarification pond. (Pet. at 2.)

In 1991, Springfield filed an application for renewal of the

NPDES permit for its generating stations and water treatment

facility. The clarification pond has two outfals which are

subject to the permit, one to Sugar Creek and the return

discharge to Lake springfield. When the final NPDES permit was

issued it included a new special condition for these outfalls

regarding the boron concentration for the discharges; this

condition will become effective December 14, 1994. Springfield

intends to come into compliance with this condition on the

discharge to Sugar Creek by seeking an adjusted for the boron

standard before the Board. Springfield does not presently plan

to take similar action concerning the discharge back to Lake

Springfield because Springfield does not have any data on the

boron concentration of that discharge. Thus, Springfield

believes that subsequent to December 14, 1994, augmentation of

Lake Springfield from the clarification pond would not be

permitted because of the likely levels of boron in the discharge.

(Pet. at 2.)

The Agency believes that one condition of the Board’s grant

of variance should require that the City continue to supplement

Lake Springfield with the recirculated pond water. The Agency

acknowledges the probable level of boron in the pond water

exceeds regulatory standards. However, the Agency believes that

there is likely a lesser environmental impact of allowing the

11

City to temporarily return this clarification pond water to Lake

Springfield during extreme drought events than in damming the

Sangamon River. Requiring the petitioner to return this pond

water into the Lake may therefore lessen the number of times

and/or duration that the City needs to dam the Sangamon River.

(Rec. at 3, 4.)

Springfield responds that it believes that a variance

condition requiring the City to continue to supplement Lake

Springfield with clarification pond water is outside of the scope

of this proceeding because it involves Springfield’s NPDES permit

conditions and that permit is not before the Board. Springfield

is amenable to including the discharge to the Lake in its

contemplated future adjusted standard for boron from the

clarification pond outfalls, or alternatively by seeking an

emergency variance for the outfall to the Lake in drought

conditions. (Response to Rec. at 2.)

The Board does not agree with Springfield’s contention that

this condition is not properly before the Board. The Board has

frequently addressed NPDES conditions and the underlaying

standards in variance proceedings and may do so here. (cite)

However, in this matter, the Board is reluctant to impose the

condition suggested by the Agency based the record before us.

First, the Board notes that there is uncertainty as to the boron

level in question. (Pet. at 3; Rec. at 3.) Indeed, we have

virtually no information concerning the level of boron, or of any

other regulated constituent, in the clarification pond water.

Although the parties indicate that the clarification pond water

has been used in the past, it appears that this use will be

discontinued after December 1994, presumably due to levels of

boron present in the pond water. Thus, it appears the

imposition of a condition requiring use of the clarification pond

water would in fact amount to a requirement that petitioner use

non-complying water. Although the Agency has concluded that

there is a lesser environmental impact from the clarification

water than from temporarily damming of the Sangamon River, the

Agency does not provide comparative data or state any basis for

this conclusion.

Moreover, the condition as suggested by the Agency is quite

vague. The Agency suggests the “petitioner shall be required to

supplement Lake Springfield’s water supply by returning

recirculated clarification pond water to the lake during extreme

drought events.” The Board notes that there are no

specifications in terms of amounts of water, testing or

monitoring, or the definition of “extreme drought events”

included in this condition.

For the reason stated above, the Board will not at this time

impose the condition concerning use of clarification pond water

as was suggested by the Agency. The Board notes, however, that

12

Springfield has indicated it will seek an adjusted standard for

boron in the future. The Board suggests that either party may

address the issue of the clarification pond water as an emergency

water source during that proceeding.

CONSISTENCY WITH FEDERAL REGULATIONS

The Agency states that there are no known federal laws or

regulations which would prohibit the granting of this petition

for variance. (Rec. at 4).

CONCLUSION

Pursuant to Section 36(b) of the Act, the Board may grant an

extension of variance where satisfactory progress has been

demonstrated. In addition, the Board may grant an extension of

an expired variance upon the demonstration of satisfactory

progress. Here, the record indicates that City of Springfield

has been diligent in its efforts to comply with the conditions of

the initial variance. Springfield has issued $17,985,000 in

water revenue bonds to fund completion of the land acquisition

for the Hunter Lake project. Springfield has acquired 5,587

acres for the project and has either reached tentative agreements

for purchase or has initiated eminent domain proceedings for the

remaining property. In addition, Springfield is developing an

Environmental Impact Statement concerning Hunter Lake. In order

to develop the EIS, Springfield has completed certain engineering

projects, entered into a contract with the Illinois Natural

History Survey and contracted with Sangamon Sate University, the

Springfield-Sangamon County Regional Planning Commission, the

Illinois Water Survey and Planning and Management Consultants,

Ltd. of Carbondale, Illinois, for other matters related to Hunter

Lake. Thus it appears Springfield is actively working towards

the development of an alternative water source.

The Board finds that City of Springfield has presented

adequate proof of satisfactory progress towards compliance.

Accordingly, the Board hereby grants City of Springfield an

extension of variance subject to the conditions stated below.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

ORDER

1.  Petitioner, the City of Springfield, is hereby granted

variance from 35 Ill. Adm. Code 302.206 as it relates to

dissolved oxygen in the Sangamon River, subject to the

following conditions:

A. Within one year after receiving the variance,

Petitioner shall submit to the Illinois Environmental

13

Protection Agency a firm schedule detailing the

planning and

implementation time frame for obtaining a

long-term water supply.

Petitioner shall remove the temporary dams

(one on the

Sangamon River and one on the South Fork River)

when

the normal levels on Lake Springfield are obtained.

C. Petitioner shall mitigate any loses of fish with the

Illinois Department of Conservation if a fish kill

would occur as a result of placement of the dams.

Petitioner shall initiate mandatory water conservation

measures before the dams are constructed.

These

measures shall be

initiated in such a way that water

conservation will lessen the need for damming the

Sangamon River. Petitioner shall submit to tJ~e

Illinois Environmental Protection Agency for comment

any mandatory water conservation measures which may be

approved by the City Council.

E. The mandatory water conservation measures shall remain

in effect as long as the dams remain in place. The

measures may be withdrawn only when the temporary dams

are actually removed from the rivers.

F. Petitioner shall assure a minimum release of 41 cubic

feet per second of water from the Sangamon River dam in

accordance with the Illinois Department of

Transportation Division of Water resources instream

flow analysis and August 19, 1987 letter to the U.S.

Army Corps of Engineers.

Petitioner shall conduct monitoring for dissolved

oxygen at stations located both above and below the dam

to be installed on the Sangamon River and above the dam

to be installed on the South Fork of the Sangamon

River. Results of such monitoring shall be submitted

to the Illinois Department of Conservation, Illinois

Department of Transportation Division of Water

Resources, and the Illinois Environmental Protection

Agency on an annual basis, or upon reasonable request.

H. This variance shall expire within 5 years or upon

Petitioner receiving a second water supply source,

whichever occurs first.

2.  Within 45 days of the date of this Order, Petitioner shall

execute and forward to:

Illinois Environmental Protection Agency

Division of Water Pollution Control

Compliance Assurance Section

2200

Churchill Road

Post Office Box 19276

Springfield, Illinois 62794—9276

a Certification

of Acceptance and Agreement to all terms and

conditions of this variance.

The forty—five day period

shall be held in abeyance during any period this matter is

being appealed.

Failure to execute and forward the

Certificate within 45 days renders this variance void and of

no force and as a shield against enforcement of rules was

granted.

The form of said Certificate is as follows:

CERTIFICATION

I (We), _______________________________________

hereby accept and agree to be bound by all terms and

conditions of the Order of the Pollution Control Board

in PCB 93—135, December 16, 1993.

Petitioner

Authorized Agent

Title

Date

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act, 415 ILCS

5/4 (1992), provides for appeal of final orders of the Board

within 35 days. The Rules of the Supreme Court of Illinois

establish filing requirements.

15

I, Dorothy M. Gunn,.Clerk of the 

Illinois Pollution Control

Board, hereby certify th~the above opinion and order was

adopted on the   

/?~‘-i- 

day of 

_____________________

1993 by a vote of 

_______________.

Dorothy N7’~unn, Clerk

Illinois P’ollution Control Board