ILLINOIS POLLUTION CONTROL BOARD
November 21,
1991
COMMONWEALTH EDISON COMPANY,
)
Petitioner,
V.
)
PCB 91-29
(Variance)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent,
and
ILLINOIS CHAPTER OF THE
SIERRA CLUB,
Intervenor.
MR. ALAN
P.
BIELAWSKI,
SIDLEY
& AUSTIN, APPEARED ON BEHALF OF
COMMONWEALTH EDISON COMPANY;
MS. LISA NORENO APPEARED ON BEHALF OF THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
OPINION AND ORDER OF THE BOARD
(by R.C.
Flemal):
This matter comes before the Board upon a February 21,
1991
petition for variance filed by the Commonwealth Edison Company
(“Edison”).
Edison requests a five—year variance from the
requirements
of
35
Ill. Adm.
Code 302.211(d),
a subsection of the
Board’s General Use Water Quality Standards for temperature,
for
the discharge from its Joliet, Will County,
Crawford,
and Fisk
generating stations.
On February 22,
1991,
the Illinois Chapter of the Sierra
Club (“Sierra Club”)
filed an objection to the variance and a
petition to intervene.
On March
14,
1991,
the Board granted
Sierra Club’s petition to intervene.
Hearing was held in this
proceeding on July 22,
1991 in Joliet,
Illinois.
No members of
the public were present.
The Illinois Environmental Protection
Agency. (“Agency”)
failed to file a recommendation,
but stated at
hearing that its position is that a variance is not necessary
based on its belief that Section 302.211(d)
does not apply to
Edison’s discharges.
The Agency further stated that it does not
oppose this variance request should the Board determine that
a
variance is necessary
(Tr.
at 12—13).
127—17 7
—2—
Prior to the filing of the variance petition,
Sierra Club
filed suit against Edison in federal district court,
asking that
the court enjoin Edison from future alleged violations of Section
302.211(d)
at the Crawford,
Fisk, and Will County plants,
and to
impose penalties on Edison for alleged past violations at these
plants.
Sierra Club also alleged that the Joliet Station
discharges violated Section 302.211(d).
A consent decree was
entered in that federal court action under which Sierra Club
agreed to withdraw its opposition to Edison’s request for
variance in the instant proceeding before the Board.
The consent
decree also contained certain conditions which would apply should
the Board grant this request for variance.
A copy of the decree
was originally submitted to the Board on July 30,
1991,
subject
to United States Environmental Protection Agency
(“USEPA”)
review.
USEPA completed its review and a revised copy of the
consent decree
(“revised decree”) was submitted to the Board on
November
8,
1991.
The Board grants Edison’s request for variance for the
reasons presented below and subject to conditions contained in
the Order below,
for a period of five years from today’s date.
DESCRIPTION OF FACILITIES
Edison
is a public utility primarily engaged
in the
production, purchase, transmission, distribution, and sale of
electricity.
Edison’s service area comprises roughly the
northern third of Illinois,
and is populated by approximately
eight million people
(Pet.
at 1-2).
Edison operates four generating stations
(Joliet, Will
County,
Crawford,
and Fisk)
that discharge heat to the Des
Plaines River or to waterways that are tributary to the Des
Plaines River.
Joliet Station
Joliet Station is a steam-electric generating facility
capable of producing 1,414 gross megawatts of electricity.
The
station
is located in Will County,
approximately one mile
southwest of the City of Joliet, Illinois, adjacent to the Des
Plaines River.
Joliet Station consists of three coal-fired
units, all of which utilize open cycle, once—through condenser
cooling systems.
The station has two thermal discharges to the ‘Des Plaines
River; one from Unit #6 on the east bank of the river and the
other from Units #7 and #8 on the west bank.
The maximum design
temperature rise in the circulating cooling water is
approximately 9.4°F, with a total circulating water flow rate of
2,620 cubic feet per second.
Both thermal discharges flow into
the Des Plaines River approximately one—half mile downstream of
127—178
—3—
the Brandon Road Lock and Dam,
at river mile 285, which is about
seven miles upstream of the 1-55 Bridge.
The annual average capacity factors of the Joliet Station
over the past five years have ranged from 24.5
to 39.9,
with
the five—year average of about 30.6.
Edison’s capacity factor
projections for the Joliet Station for the next five years range
from 19.4
to 31.7.
Maximum operation of the Joliet Station
generally occurs during Edison’s peak demand periods; that
is,
during day-time hours and during the summer months
(Pet. at 3—
4)
Will County,
Fisk,
and Crawford Stations
Will County,
Crawford, and Fisk Stations
(collectively, the
“Canal Stations”)
are steam electric generating facilities
capable of producing 1154,
581, and 342 gross megawatts of
electricity, respectively.
Will County Station is located in
Romeoville,
Illinois,
near the intersection of the Chicago
Sanitary and Ship Canal and Romeo Road.
Crawford Station is
located in Chicago, near the intersection of the Stevenson
Expressway and Pulaski Avenue.
Fisk Station is located near
downtown Chicago,
at the intersection of Loomis Street and the
Chicago Sanitary and Ship Canal.
The generating units of each
Canal Station are coal—fired,
and each utilizes open cycle,
once—
through condenser cooling systems.
The Canal Stations discharge into the Chicago Sanitary and
Ship Canal: Will County at river mile 295.5,
Crawford at river
mile 318.5, and Fisk at river mile 322.
The maximum design
temperature rise in the circulating cooling water is
approximately 11.1°Ffor Will County, 12.0°Ffor Crawford, and
12.2°Ffor Fisk.
The annual average capacity factors over the past five
years,
and the projected annual average capacity factors for the
next five years for the Canal Stations, are as follows:
1986
—
1991
1992
—
1996
Will County
28.2
26.0
Crawford
21.9
15.0
Fisk
21.7
26.0
As with Joliet Station, the Canal Stations are generally operated
more during peak demand periods
(Pet.
at 4-5).
APPLICABLE REGULATIONS
Each of the discharges from these four generating stations
is subject to secondary contact and indigenous aquatic life water
quality standards
(35 Ill.
Adm. Code 303.441).
The temperature
127—179
—4—
standard for secondary contact waters
(35 Ill. Adm.
Code 302.408)
requires that:
temperature
.
.
.
not exceed 34°C(93°F)more than
5
of the time,
or 37.8°C (100°F) at any time.
35
Ill.
Adm. Code §302.408.
However, the lower Des Plaines River between the Interstate 55
Bridge and the head of the Illinois River
(confluence of the Des
Plaines River with the Kankakee River),
a segment known as the
“Five—Mile Stretch”,
is subject to the more stringent general use
water quality standards.
Among other requirements, the general
use standards governing temperature require that:
the
maximum temperature rise above natural
temperatures shall not exceed 2.8°C(5°F); (Section
35
Ill.
Adm. Code 302.211(d))
and that the temperature of the water not exceed 16°C(60°F),
during winter months
(Dec. through Mar.)
or 32°C(90°F), during
summer months
(Apr. through Nov.), more than 1
of the hours
in a
12 month period ending in any month,
and never exceed these
temperatures by more than 1.7°C(3°F) (35 Ill. Adm.
Code
302.211(e)).
THERMAL
DEMONSTRATION
In 1987, Edison requested that the Board determine, pursuant
to 35
Ill. Adm. Code 302.211(f),
that the thermal discharges from
the Joliet Station have not caused and cannot reasonably be
expected to cause significant ecological damage to the general
use waters.
The Board found that Edison had made the requisite
showing under 302.211(f)
(In the Matter of:
Proposed
Determination of No Significant Ecological Damage for the Joliet
Generating Station, PCB 87-93,
105 PCB Op.
149, November 15,
1989.)
In the course of PCB 87—93, the Sierra Club,
also
participating as an intervenor,
argued that Edison had failed to
make a sufficient showing of no significant ecological impact
because,
among other reasons, the Joliet plant contributed to
violations of Section 302.211(d)
and
(e)
in the waters of the
Five-Mile Stretch.
In response,
Edison argued that these
provisions were inapplicable, principally because Joliet Station
discharges into secondary contact waters.
Edison further
committed to implement an operating plan for the Joliet Station
which would ensure that the Joliet Station would limit its
megawatt output as necessary to avOid exceedences of the monthly
maximum temperature standard of.Section 302.211(e).
In PCB 87-93, the Board addressed these issues as follows:
12 9—180
—5—
The Board finds that 302.211(d)
and
(e) do apply to the
effect of Edison’s discharges.
Although Secondary
Contact Standards may govern at the point of a
particular discharge,
it
is possible for an entity
located upstream of the beginning of the General Use
waters to cause or contribute to exceedances
(sic)
of
the General Use Water Quality Standards.
In fact, the
reason the Board required Edison to perform a thermal
demonstration under subsection
(f)
is because the Board
recognized that a source which discharges to Secondary
Contact waters could affect downstream General Use
waters.
The Board finds, however, that in this proceeding
the issues of whether violations of the 302.211
standards have occurred in the Five—Mile Stretch and,
if they have, whether Edison is responsible for them,
is at best ancillary to the matters at hand.
The only
proper forum for the Board to hear allegations of
violation of the Board’s rules is an enforcement action
brought pursuant to Title VIII of the Illinois
Environmental Protection Act.
The Board cannot and
will not here reach the issue of whether Edison
is
ir
violation of any Board water quality standard.
Consideration of whether there is non-compliance of the
waters of the Five-Mile Stretch with the Board’s water
temperature standards can enter the immediate case only
where non—compliance stands as proof of significant
ecological damage associated with Edison’s discharge.
The Board finds that there
is no substantive indication
that any of the observed temperatures in the’ Five-Mile
Stretch have caused significant ecological damage.
PCB
87—93
at 19;
105 PCB Op.
at 167.
Regarding whether Edison’s operating plan was acceptable to
satisfy the requirements of Section 302.211(e),
the Board found:
The Board believes that Edison has a viable monitoring
program
.
.
.
which, although not field tested at the
time of hearing,
is capable of assuring adjustments to
operations should they prove necessary to ensure
compliance.
PCB 87—93 at 21; 105 PCB Op. at 169.
HARDSHIP
Edison believes that a requirement to come into immediate
compliance with the Section 302.211(d)
standards would result in
arbitrary or unreasonable hardship.
The hardship results from
the difficulty in determining how to measure whether the Joliet
Station discharge has been contributing to violations of the
Section 302.211(d)
standard, due to the distance from the Joliet
127—181
—6—
Station discharge
and’ the beginning of general use waters,
and
how to adjust plant operations based upon the measurements
(Pet.
at 8).
Edison explains that for its plants that discharge directly
to general use waters, compliance is demonstrated by showing that
the area and dimensions of the discharge plume which is more than
5°F above the temperature of the water at the intake1 is within
the mixing zone constraints permitted by the Board’s regulations
(35 Ill. Adm. Code 302.102).
The two temperature measurements
that are compared
(i.e., the temperature of the water at the
intake and the temperature at the edge of the mixing zone)
are
taken contemporaneously, because the 5°Fstandard applies at the
point of discharge.
Edison further states that from an
operational perspective,
it is relatively easy to determine the
level at which a plant can operate without causing the standard
to be violated.
As the size of the plume begins to approach the
size of an allowable mixing zone,
the plant’s output
is
controlled to assure that the plume does not exceed the
applicable restrictions
(Pet.
at 9).
Edison submits that the Section 302.211(d)
regulations
cannot be applied to Joliet in the same manner, nor is
a similar
operational strategy viable.
The 5°Ftemperature rise standard
applies beginning at the 1-55 bridge.
The bridge
is’ about
7
miles downstream from the Joliet Station discharge.
The water
discharged from the station takes anywhere from 10 to 45 hours to
travel to the 1-55 bridge.
During that time interval, the
temperature of the water
in the river is influenced by a number
of factors in addition to the Joliet discharge,
such as diurnal
radiation heating, evaporative and conductive heat exchange
affected by air temperature,
cloud cover, wind speed,
and
humidity; and other’ discharges of heated water into the river
between the Joliet Station discharge and the 1-55 bridge.
Edison
believes that the time lag for effluent travel and other
variables make operational changes designed to achieve compliance
unworkable
(Pet.
at 10).
The difficulties in temperature
measurement comparison,
operational changes,
and possible future
modelling are supported by affidavits of Jeffrey Smith and Dr.
Forrest Holly submitted by Edison with its petition
(Exhs. A and
B, respectively).
As explained below
in the section concerning the compliance
plan,
Edison proposes to submit am adjusted standard petition or
site-specific rulemaking petition to the Board,
and requests the
time in the instant proceeding to complete needed studies prior
to submission of the proposal.
Edison submits that while the
studies are being conducted,
it “will continue to be subject to
1 The “natural temperature” of the water, as those terms are
used in Section 302.211(d)
is considered to be the temperature of
the water at the intake to the plant.
12 7—182
—7—
claims that its operations at Joliet and the Canal Stations
violate §302.211(d),
and thus subject to claims for substantial
civil penalties and possibly drastic, though environmentally
unjustified, judicially imposed deratings of its plants”
(Pet. at
15-16).
Edison believes absent the grant of
a variance,
it
appears that its only protection from such claims would be to
build cooling towers at a very substantial cost or derate its
units
(Pet.
at 16).
The affidavit of~Jeffrey Smith explains that
the cost to Edison of attempting to comply with §302.211(d)
is
likely to be upwards of $100 million (1988 estimate),
if the
company were required to install cooling towers.
In addition,
cooling,towers are likely to cause significant fogging in the
area,
particularly along State Route
6.
(Pet.
Exh. A at 10).
COMPLIANCE PLAN
Edison has committed to initiate an adjusted standard or
site-specific proceeding before the Board following completion of
studies to be conducted (revised decree at ¶13).
Edison states
that it does not have the information necessary to meet its
burden of proof in an adjusted standard or site—specific
proceeding and discusses its plan as
follows:
The affidavit of Dr. Robert Otto (Exhibit
C) explains
that while there is a good deal of information,
of
a
qualitative nature, supporting the conclusion that
temperature
is not the factor limiting the ecology of
the Five-Mile Stretch, additional data and information
is needed to support the preparation of analyses
required to obtain site specific relief.
To collect the needed data and information,
Edison
proposes to design and conduct various studies of the
Five-Mile Stretch.
The design and implementation plans
for the studies would be developed in consultation with
the appropriate environmental and conservation
authorities.
The overall objectives of the studies
would be as follows:
(1) measure and assess the
physical contours and characteristics of the Five-Mile
Stretch to better understand how the physical makeup of
the river affects its ability to support and sustain
aquatic life;
(2) measure and compute the thermal
environment in the waters of the Five-Mile Stretch to
better understand the extent to which the waters are
affected by the various heat inputs, particularly at
locations where the physical habitat appears conducive
to aquatic life propagation;
(3)
sample and analyze
waters, sediments and organisms for toxic materials to
determine the extent to which these materials may limit
aquatic life
in the Five—Mile Stretch; and
(4)
determine and access current populations of
12 7—183
—8—
macrophytes, macroinvertibrates and fishes
(Pet at 14—
15)
Dr.
Otto estimates that the studies discussed above
will take about four years to design and implement.
Thereafter,
it will take at least
a year to prepare a
report of the findings and conclusions, submit a
petition for site specific relief to the Board and for
the Board to deliberate and issue its decision.
(Pet.
at’ 14—15)
In addition, the Board notes that the revised decree
includes provisions on how the study is to be conducted,
including working with all affected governmental agencies2 to
develop the scope and duration of the study
(to be completed in
five years from any grant of variance),
and working with Sierra
Club and its experts in conducting the study.
The revised decree
further states:
Edison
and Sierra Club agree that there is
a need to
gather additional information concerning the ecology of
the Chicago Sanitary and Ship Canal and the lower Des
Plaines River and further assess the impacts industrial
and municipal discharges are having on these waters.
Following completion of such studies,
Edison)
and
Sierra Club agree the Edison)
shall propose that the
Board
promulgate thermal standards or alternative
NPDES permit effluent limitations consistent with
§316(a)
of the Clean
Water
Act that would apply to
Edison’s
Plants in lieu of the existing standards.
Revised decree at ¶7.
ENVIRONMENTAL
IMPACT
In PCB 87—93,
the Board found that Edison successfully
demonstrated that the heat discharges from the Joliet Station
have not caused and cannot be reasonably expected to cause
significant ecological damage to the waters of the Five—Mile
Stretch.
In so doing, the Board also found that the temperature
of the waters of the Five-Mile Stretch was not a factor limiting
its quality,
and that other factors continue to override the
effect of temperature on the waterway.
These overriding factors
include loss of habitat due to channelization, disruption of
habitat due to barge traffic,
and the presence of heavy metals
and other pollutants in the system (PCB 87—93 at 20).
2 Agency, USEPA,
and the Illinois Department of
Conservation.
12 7—184
—9—
Edison states that its projections for Joliet Station’s
operations during the next five years are in line with the
projections Edison presented to the Board in PCB 87—93.
Edison
further states that it will operate Joliet Station in accordance
with an operating plan that ensures compliance with §302.211(e),
as
it committed to do
in PCB 87-93
(Pet.
at 15—16).
‘DISCUSSION AND CONCLUSIONS
In consideration of any variance, the Board determines
whether,a petitioner has presented adequate proof that immediate
compliance with the Board regulations at issue would’ impose an
arbitrary or unreasonable hardship
(Ill. Rev.
Stat.
1989,
ch.
111½, par.
1035(a)).
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,
481 N.E.2d,
1032).
Only with such
showing can the claimed hardship rise to the level of arbitrary
or unreasonable hardship.
The Board finds that based upon the facts and circumstances
of this case, denial of variance would impose an arbitrary or
unreasonable hardship upon Edison.
The hardship outweighs any
risk of environmental harm posed by the heat discharges from
Edison’s plants,
for the time period of the variance, especially
since interim standards are today imposed on the Joliet and Canal
Stations
in the following Board order.
The interim standards are
also allowed for in the revised decree upon grant of variance.
A variance by its nature is
a temporary reprieve from
compliance with the Board’s regulations
(Monsanto Co.
v.
IPCB
(1977),
67
Ill.
2d 276,
367 N.E.
2d 684),
and compliance
is to be
sought regardless of the hardship that the task of eventual
compliance presents an individual polluter
(~.)
Accordingly,
except in certain special circumstances, a variance petitioner is
required,
as a condition to grant of variance, to commit to a
plan that
is reasonably calculated to achieve compliance withn
the term of the variance.
The Board finds that in this instance,
extraordinary circumstances exist which allow for grant of
variance even though compliance will not be achieved during the
term of the variance.
Included in these circumstances are the
distal location of the Joliet Station and Canal Stations relative
‘to the point of application of the General Use Water Quality
Standards, the unique nature of thermal discharges and unknown
127—185
—10—
effect of those discharges on the receiving waterways3,
and the
study,
which all parties agree is necessary.
Furthermore,
this situation is also extraodinary since
whether Edison is actually violating the standards is not known
and
is also part of the subject of the study to be completed.
Therefore, the Board believes that the circumstances
in this
instance call for departure from the norm, and grants variance
even though the state of compliance of the petitioner is not now
known,
and may not be known during the term of the variance.
The Board accordingly grants variance subject to conditions
as indicated in the order below.
In adding some of the terms of
the consent decree to its order as conditions upon this grant of
variance, the Board notes that it only includes those items that
pertain to the interim standards and the study to be conducted.
The Board specifically excludes those items pertaining to the
conduct between Edison, the government agencies, and Sierra Club
as being outside the purview of this variance proceeding and
solely within the province of the revised decree.
This Opinion constitutes the Board’s findings of fact and
conclusions of law
in this matter.
ORDER
Petitioner,
Commonwealth Edison Company
(“Edison”),
is
hereby granted variance from the temperature standards of 35
Ill.
Adm. Code 302.211(d),
for the discharges from its Joliet, Will
County,
Crawford, and Fisk generating stations (hereinafter,
“the
Company’s Plants”), subject to the following conditions:
(1)
Variance terminates on November 21,
1996,
or when
compliance
is demonstrated, whichever is earlier.
(2)
Except as provided below,
for the period the
variance
is in effect, the Company’s Plants
shall comply with the following interim
temperature standards (“Interim Standards”)
to be measured at the 1-55 Bridge:
January-March
60°F
In PCB 87—93,
the Board also found that other limiting
factors continue to exist that override the effect of temperature
on this waterway, including loss of habitat due to
channelization,
disruption of habitat due to barge traffic,
and
the presence of heavy metals and other pollutants in the system.
The Board expressed hope that this situation can be reversed in
the not-distant future
(PCB 87-93 at
20,
105 PCB Op.
168).
127—186
—11—
April 1—15
70°F
April 16—30
75°F
May 1—15
80°F
May 16—31
85°F
June
88°F
July-August
90°F
September
86°F
October
75°F
November
65°F
December
60°F
(3~ The Company’s Plants may cause the water
temperature at the 1—55 Bridge to exceed the
Interim Standards by no more than 3°Ffor 1
of the hours in the twelve month period
ending with any month.
In addition,
for each
period from April through June that the
Interim Standards are in effect, the
Company’s Plants may cause the water
temperature at the 1-55 Bridge to exceed the
Interim Standards by no more than 3°Ffor an
additional 30 hours.
(4)
The Interim Standards shall not constitute
any evidence with regard to the appropriate
level at which to set final thermal standards
or alternative NPDES permit effluent
limitations.
(5)
Edison shall initiate a study
(the “Study”),
which will include the following measures:
a.
Edison will retain a panel of experts
qualified to formulate,
direct and
oversee the conduct’ of the Study;
b.
Edison shall use its best efforts to work
with all affected governmental agencies,
including the Illinois Environmental
Protection Agency, the United States
Environmental Protection Agency, and the
Illinois Department of Conservation to
develop the scope and duration of the Study;
c.
Edison shall use its best efforts to
complete the Study and any proceedings
before the Board to establish thermal
standards or alternative effluent
limitations
for the Company’s Plants
within five years.
(6)
Following completion of the Study,
Edison
shall initiate proceedings before the Board
127—18’?
—12—
to establish thermal standards or alternative
NPDES permit effluent limitations consistent
with §316(a)
of the Clean Water Act
applicable to the Company’s Plants.
(7)
Edison shall install and use its best efforts
to maintain 24—hour temperature monitors
during the period of the Study at the
following locations:
a.
On the Chicago Sanitary and Ship Canal
above Edison’s Will County Station
discharge;
b.
At the Brandon Road Lock and Dam, or,
in
the event Edison is not given permission
to install
a monitor at that location,
at an alternate location agreeable to
both Sierra Club and Edison;
c.
At the 1-55 Bridge on the Des Plaines
River;
d.
On the Kankakee River,
near Edison’s
Braidwood Station.
Within 45 days of the date of this Order, Petitioner shall
execute and forward to Lisa Moreno, Division of Legal Counsel,
Illinois Environmental Protection Agency,
2200 Churchill Road,
Post Office Box 19276,
Springfield, Illinois 62794—9276,
a
Certification of Acceptance and Agreement to be bound to all
terms and conditions of this variance.
The 45-day period shall
be held in abeyance’ during any period that this matter
is being
appealed.
Failure to execute and forward the Certificate within
45 days renders this variance void and of no force and effect as
a shield against enforcement of rules from which variance was
granted.
The form of said Certification shall be 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 91-29 November
21,
1991.
Petitioner
Authorized Agent
127—188
—13—
Title
Date
Section 41 of the Environmental Protection Act,
Ill.
Rev.
Stat.
1989 ch.
111
½
par.
1041, provides for appeal of final
Orders of the Board within 35 days.
The Rules of the Supreme
Court of Illinois establish filing requirements.
ITIS
SO
ORDERED.
I,
Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
hereby certify that the above, Opinion and Order was
adopted on the
~
day of
____________________,
1991,
by
a vote of
______________
.
C
~
~
Dorothy M. 4unn,
Clerk
Illinois P~’llutionControl Board
12 7—189
