ILLINOIS POLLUTION CONTROL BOARD
November
15,
1989
IN THE MATTER OF:
PROPOSED DETERMINATION OF
)
PCB 87-93
NO SIGNIFICANT ECOLOGICAL
)
(Thermal Demonstration)
DAMAGE FOR THE JOLIET
)
GENERATING STATION
MR.
A. DANIEL FELDMAN APPEARED ON BEHALF OF COMMONWEALTH EDISON
COMPANY;
MR. JOHN
J.
BRESLIN APPEARED ON BEHALF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY;
MR. ALBERT ETTINGER APPEARED ON BEHALF OF INTERVENOR SIERRA CLUB,
GREAT LAKES CHAPTER.
OPINION AND ORDER OF THE BOARD
(by R.
C.
Flemal):
This matter comes before the Board upon a June
19,
1987,
Petition for Thermal Determination under
35
Ill. Adm.
Code
302.211(f)
filed by the Commonwealth Edison Company (“Edison”).
An Amended Petition was submitted
to the Board by Edison on
August
1,
1988, with the intent that this Amended Petition
replace the previously submitted petition.
The issue before the Board
in a thermal demonstration
is
whether
the petitioner has shown that thermal discharges
from the
petitioner’s facility have not caused or cannot
be reasonably
expected
to cause significant ecological damage to General Use
waters.
In the absence of such showing, Board is required,
pursuant
to Section 302.211(f),
to order the petitioner
to take
appropriate corrective measures.
In the instant matter,
Edison requests the Board
to
determine
that the discharges from its Joliet Station have not
caused,
and cannot
be reasonably expected
to cause,
significant
ecological damage to the “Five—Mile Stretch” of the lower
Des
Plaines River.
The Five—Mile Stretch is that segment of
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).
It
is the General Use water most
immediately downstream of Edison’s thermal outfall.
Based upon consideration of the record as explained below,
the Board finds that Edison has successfully made its
demonstration.
Accordingly,
the Board need not order
that
corrective measures be undertaken.
1r~5,j~q
—2—
PROC
EDURAL HISTORY
As part of its June 19,
1988 petition Edison requested that
the Board determine that the submission of a Section 302.211(f)
petition for the Joliet Station
is not necessary..
Edison argued
that because the Joliet Station discharges into the Des Plaines
River at a point where Secondary Contact Standards govern,
the
thermal demonstration of 302.211(f)
for discharges into General
Use waters
is not required.
However,
the Board by Order
of
September
17,
1987 found that 302.211(f)
does apply
to Edison.
Specifically,
the Board found that even though Edison’s immediate
discharge is to Secondary Contact waters,
the discharge
nonetheless impacts the downstream General Use waters.
Hearings were held on November
29 and 30,
and December
7,
1988
in Chicago.
Members of the public attended the hearings.
The Great Lakes Chapter of the Sierra Club (“Sierra Club”)
participated as
intervenor.
A series of briefs and reply briefs
were submitted in this proceeding.
Edison filed its brief on
February
16,
1989;
Sierra Club filed
its reply brief on April
7,
1989;
the Illinois Environmental Protection Agency
(“Agency”)
filed
its brief on May
1,
1989; Edison filed its reply brief on
May 11,
1989;
and Sierra Club filed
its brief
in response to the
Agency’s brief on May
12,
1989.
The Agency supports Edison’s petition, contending that
Edison has satisfied the requirements of Section 302.211(f)
and
that Edison’s thermal discharges have not caused and cannot be
reasonably expected to cause significant ecological damage.
Sierra Club contends that Edison has not met its burden of proof
and urges that Edison’s petition be denied.
PLANT DESCRIPTION AND OPERATIONS
Edison owns and operates the Joliet Station,
a steam—
electric generating facility capable of producing
1,414 net
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.
The station c~nsistsof three
coal—fired units, Units
6,
7,
and 8
(Report at
1)
1 The “Report
of Petitioner Commonwealth Edison Company
in
support
of Petition
for Determination under Rule 302.211(f)
(1988
Submittal)’
was submitted as part of Edison’s Amended Petition
and admitted into the record at transcript
page
226,
but not
given an exhibit number.
The document will be cited as “Report
at
1O5—15~)
—3—
The Joliet Station utilizes
Des Plaines River water
for
once—through condenser cooling.
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 design maximum temperature rise
in the circulating
cooling water
is approximately 9.4°F, with a total circulating
flow
rate of 2,620 cubic
feet per
second.
Both thermal
discharges flow into the Des Plaines River approximately one mile
downstream of the Brandon Road Lock and Dam, at River Mile 285,
which is approximately seven miles above
the 1—55 Bridge,
the
beginning of the Five—Mile Stretch (Report at
2).
The annual average capacity factors of the Joliet Station
from 1982—1987 have ranged from 29.9
to 45.7
with
a
six year
average of about
38.3.
Edison
states that since the Joliet
units are less economical on a marginal cost basis than Edison’s
nuclear units and certain other
coal units, annual average
capacity factors are expected to be much lower than 38
over the
next five years and are not expected to exceed 33
during the
remaining life of the station.
Maximum operation of
this station
generally occurs during Edison’s peak summer—month demand
periods.
Higher daily load factors approaching 8C~may be
expected during this
time.
However, monthly summer capacity
factors normally are approximately 50
(Report at
1).
Projected annual capacity factors
(1988—1991)
for
the Joliet
units ~ange from 18.1
—
23.6,
with a four—year annual average
of
21’.
Thus,
it
is expected that the future operating regime
of
the station
will
remain similar
to or
less than
that of the
past three years.
With the greater reliance on the new nuclear
units, dependence
on the older
fossil units,
such as those at
Joliet Station, may decrease further.
Although there have been
no specific plans made regarding retirement
of the units,
Edison
has estimated retirement dates between 2002—2005 for the three
Joliet units
(Report
at
3).
The Joliet units have been shutdown on several occasions for
various reasons.
Shutdown durations
range from minutes to
months.
Most of the instances of extended duration
(twelve or
more days) were due
to the schethi±edmaintenance of each unit
(Report at
1).
2
It
is apparent from testimony that the annual capacity factor
fo~1988 -~asprobaby higher
than projected due to
the excessive
heat during that summer, although it was not stated how much
higher
(R.
at
13—15).
Ju15. 1S1
—4—
NATURE OF A THERNAL DEMONSTRATION
Certain dischargers of heated effluent are required to
perform a thermal demonstration pursuant to 35
Ill. Mm. Code
302.211(f).
This subsection states in pertinent part:
The owner or operator of a source of heated effluent
which discharges 150 megawatts
(0.5 billion British
thermal units per hour)
or more shall demonstrate
in
a hearing before this
...
Board
...
not less than
5
nor more than
6 years years after the effective date
of these regulations
...
that discharges
from that
source have not caused and cannot be reasonably
expected to cause significant ecological damage to
the receiving waters.
If such proof
is not made to
the satisfaction of the Board appropriate corrective
measures shall be ordered
to be taken within a
reasonable time
as determined by the Board.
In order
to make a thermal demonstration as required by
Section 302.211(f),
a petitioner must submit information
in
accordance with the Board’s procedural rules at
35
Ill. Adm. Code
l06.Subpart A.
Such rules
require information on the general
plant description, method of heat dissipation, plume studies, and
biological studies.
PRIOR VARIANCES
Since the substance
of Section 302.211(f) was adopted
in
June l972-~, it is uncontested that Edison was originally required
to make
its 302.211(f) demonstration prior
to July 1978.
However, Edison has been granted three variances from the
requirement
to perform its thermal demonstration
(PCB 78—79, May
25,
1978,
30 PCB 315; PCB 81—24, June
10,
1981,
42 PCB
55; and
PCB 84—33,
December
20,
1984,
60 PCB
1).
In each case the Board
found that
it would be unreasonable for Edison to engage
in a
thermal demonstration at that time because temperature was not
then a relevant and limiting factor in the quality
of the Five—
Mile Stretch.
The Board reasoned that the installation of
control equipment
(or,
in the alternative, derating) would not be
reasonable as long as such control measures could not be
reasonably expected to lead to
an improvement
in the aquatic
habitat.
It would therefore
be meaningless
to undertake an
In the Matter
of Water Quality Standards Revisions,
R72—4,
adopted June 28,
1973;
supporting Opinion adopted November
8,
1973 at 10 PCB 69.
As adopted,
this rule was Rule 203(i)(5).
Upon codification
it was changed to Section 302.211(E).
1fl5 -152
—5—
exercise the purpose of which is
to determine what control
equipment,
if any,
was needed to improve
the aquatic habitat.
Edison and the Agency contend that,
even today, heat
is
not
a factor which limits the quality of the aquatic habitat
of the
Five—Mile Stretch.
However,
rather than continue
to pursue the
variance route under
the uncertain prospect
that heat will
eventually become limiting,
Edison proposes
to discharge its
302.211(f) obligation
now.
Edison’s desire
to proceed at
this
time appears
to be based
in part on Edison’s belief
that
it
is
in
compliance
with all pertinent
thermal water quality standards,
and hence that
it cannot plead that compliance
with
the standards
would constitute an arbitrary or unreasonable hardship.
Similarly,
Edison appears
to believe
that the information
necessary
to make
its demonstration
is availah~e and ready
to be
presented.
Hence, there
is no basis
for a finding
that gathering
and presenting
this information would constitute
an arbitrary or
unreasonable hardship.
Moreover,
Edison’s last variance expired
on July
1,
1987, triggering
the requirement
that
the thermal
demonstration now be made.
APPLICABLE WATER QUALITY STANDARDS
The Des Plaines River from its confluence with the Chicago
Sanitary and Ship Canal
(five miles upstream of Joliet Station)
to the 1—55 Bridge
is designated
as Secondary Contact and
Indicenous Aquatic Life water.
Hence discharge from the Joliet
Station
is
to points where Secondary Contact Standards govern.
Section 302.408 contains the temperature standard
for Secondary
Contact water:
Temperature
...
shall
not exceed 34°C(93°F) for more
than
5
of the time,
or 37.8°C (100°F) at any time.
In previous orders,
the Board has found
that although the Joliet
Station discharges
into water designated Secondary Contact,
the
General Use water downstream at
the Five—Mile Stretch
is also
affected.
Therefore, Edison must make the showing required under
Section 302.211(f).
The General Use Standards
for temperature do
not become applicable
to water affected by Edison’s discharge
until
such water reaches
the
1—55 Bridge.
These General Use
Standards,
which are found
35
Ill.
Adm.
Code 302.211(b)
though
(e),
state
in pertinent
part:
b)
There
shall
be no abnormal temperature changes
that may adversely affect aquatic life unless
caused by natural conditions.
C)
The normal daily and seasonal temperature
fluctuations which existed before
the addition of
heat due
to other
than natural causes shall
be
maintained.
1~)515~
—6—
d)
The maximum temperature rise above natural
temperatures shall not exceed 2.8°C(5°F).
e)
In addition,
the water temperature at repre-
sentative locations
in the main river shall not
exceed the maximum limits in the following table
during more than one percent of the hours in the
12—month period ending with any month.
Moreover,
at
no time shall the water temperature at such
locations exceed the maximum limits
in the
following table by more than 1.7°C(3°F).
°C
°F
°C
°F
JAN.
16
60
JUL.
32
90
FEB.
16
60
AUG.
32
90
MAR.
16
60
SEPT.
32
90
APR.
32
90
OCT.
32
90
MAY
32
90
NOV.
32
90
JUNE
32
90
DEC.
16
60
EDISON’S CASE
The focus of
the information presented by Edison is related
to three general contentions which Edison makes before the
Board.
These are:
1)
That the heated discharge from the Joliet Station
is
in compliance with all applicable Illinois
laws and regulationr;
2)
That
Edison
has made a commitment
to continue
this record of compliance;
and
3)
That existing physical and chemical conditions
associated with domestic/chemical waste disposal
and transport and unrelated to the discharge of
heat from Joliet Station are paramount
in
controlling ecological balances
in the Des
Plaines River system.
Heat discharged
from
Joliet Station plays
no significant
role
in
determining
the well—being of aquatic life within
the drainage.
Edison Brief at
15
Ir)5-1SL~
—7—
Edison presented the testimony4
of
five witnesses in support
of its contentions.
These were Mr. Thomas
E.
Hemnminger,
Director
of Water Quality
in Edison’s Environmental Affairs Department;
Dr. John F.
Kennedy, Hunter Rouse Professor
of Hydraulics and
Director of the Iowa Institute of Hydraulic Research at the
University
of
Iowa;
Dr.
Ben B.
Ewing, Professor
of Environmental
Engineering Emeritus, Department of Civil Engineering and
Institute for Environmental Studies, University of Illinois at
Urbana—Champaign; Dr. William M.
Lewis, Visiting Professor
in
Fisheries,
Southern Illinois University;
and Dr.
Robert
G.
Otto,
ecologist and fisheries biologist,
and president
of the
consulting firm of
R.
G. Otto and Associates.
Thomas
E.
Hemminger
Mr. Hemminger presented a general overview of Edison’s
current proposal.
He noted Edison’s belief that both the
Secondary Contact and General Use portions
of the Des Plaines
River
are currently in compliance with the Board’s temperature
standards
(Edison App.
1 at
2).
Mr. Hemminger noted
that Edison
has operated
a temperature monitor at
the 1—55 bridge since mid—
1984, and that the data collected there
indicate that the General
Use temperature limits were
not exceeded during 1984—87
(Edison
App.
1 at
2; Petition Table
8).
He further
contended that
exceedances of the General Use Standards are not to be expected
in the future.
He attributed this circumstance
in part
to
decreased operations at the Joliet Station and emphasized that
additional projected decreases
in operations will further limit
the impact of the Joliet Station on the Des Plaines River
(Id.
at
3).
Mr. Hemminger next explained Edison’s efforts
at analyzing
the effect that Edison’s thermal discharges have on downriver
temperatures, and the steps
that Edison
is undertaking to further
minimize the effect.
He noted that results of modeling studies
(see following)
have been incorporated with river flow data and
cooling water
intake temperatures to allow Edison
to develop a
Written copies
of the testimony of
each of Edison’s five
witnesses were appended
to the Amended Petition.
At
hearing,
each witness attested
to his written comments and noted any
corrections, and the testimony was admitted and given an exhibit
number.
However,
the testimony was not entered into the
transcript
“as
if read”.
Citations to the testimony will
therefore be
to the appendix number
as printed in the Amended
Petition and page number,
such as “Edison App.
1
at
2”.
Any
attachments to the testimony will be cited
to the numbers given
therein,
such as
“Edison App.
2,
Figure
3”.
It should be noted
that
Edison’s Exhibits
1
through
5 are the same as Edison’s
Appendices 1—5 of
the Amended Petition.
1~5-155
—8—
relationship between plant load and instrearn water temperatures
(Edison App.
1 at
6 and G and H).
Edison believes that it can
use this relationship, as an operating protocol,
to adjust
operations at the Joliet Station, including temporary derating
if
necessary,
to continue
to assure that the Joliet Station does not
contribute to violation of any of the ambient water quality
temperature standards (Edison App.
1 at
6).
In particular,
the
protocol is “designed to achieve the 90°general water quality
standard” at the 1—55 Bridge and never to exceed 93° (R. at 69—
70).
Lastly,
Mr. Hemminger reviewed Edison’s options should
it
be
found by this Board that corrective action
is necessary.
He
noted that Edison considers cooling ponds and natural draft
towers not to be feasible options because of land and height
limitations at
the Joliet Station (Edison App.
1 at 6).
The one
viable cooling option appears
to be the use of mechanical draft
cooling towers.
However,
Edison believes mechanical draft
cooling towers raise several serious environmental concerns due
to the need to site them within a congested area.
Among
these
are icing and moisture causing flashover on electrical
transmission lines, and fogging
(Id.
at 7).
Moreover, Edison
believes that mechanical draft cooling towers may be so costly,
particularly
for a facility now seeing only limited duty, a~to
require retirement of some or all of
the Joliet units
(Id.)
Dr.
John.
F.
Kennedy
Dr. Kennedy discussed studies he has undertaken on Edison’s
behalf regarding how excess heat from the Joliet Station is
distributed
in the Des Plaines River and the extent to which this
heat may affect downstream
locations.
Dr. Kennedy based his
testimony on results of computer—based modeling
of
the
magnitudes,
spatial distributions, and rates of change of
temperature rise produced
in the Des Plaines River by discharges
from the Joliet Station (Edison App.
2 at 1—2).
As a basic principle,
Dr. Kennedy noted that temperature of
the Edison effluent decreases downstream due
to a combination of
mixing and heat transfer
tø the atmosphere
(Edison App.
2 at
2).
Based upon his modeling studies, Dr. Kennedy concluded that
at high discharge the Edison effluent
is completely mixed after
It should be noted
that the parties stipulated that further
information on the issue of corrective measures would
not be
presented unless corrective measures becomes an
issue
in the
proceeding
(Hearing Officer Exh.
1).
Corrective measures become
an issue only should the Board
find that Edison has not
successfully made its demonstration.
1q5~-156
—9—
two miles of transport,
and that at low discharge complete mixing
is achieved after five
to six miles
of transport;
this condition
occurs even at maximum plant
loads
(Id. at
4).
Therefore,
Dr.
Kennedy concluded that there
is no plume effect recognizable at
the 1—55 bridge
(Id. at
5).
Dr. Kennedy also calculated water—temperature rises
at
the
1—55 bridge under various plant
loads and river discharge
conditions.
For the 7—day
10—year low—flow and average plant
load Dr. Kennedy calculated that the station—induced temperature
rise at the 1—55 bridge would be 2.9°F(Edison App.
2
at
8).
Lastly,
Dr. Kennedy modeled the temporal variation
in
water
temperature
at the
1-55 bridge which would occur due
to
load
changes at the Joliet Station.
Dr. Kennedy found that the
maximum rate of temperature change for
a plant load reduction
from 1,100 megawatts
to zero load
in about
55 minutes is
less
than about 0.3°F/hr (Id.).
Dr.
Ben B.
Ewing
Dr.
Ewing discussed the past and present water quality
conditions within the Des Plaines River, with emphasis on how
water temperatures interplay with the various other water quality
parameters.
He also compared the water quality of the lower
Des
Plaines River with that of
some other Illinois Rivers.
The
results of his studies yielded several conclusions, including
statements on the water quality of
the Lower Des Plaines:
The waters of the Lower Des Plaines river are of
marginal water quality.
There has been some general
improvement
in some of the important water quality
indices
in the years between 1979 and 1983,
but
little change since then.
Comparison with general quality data for other
Illinois streams indicates that the Lower Des Plaines
River
is still inferior.
The presence of toxic
metals,
PCB’s and pesticides
in sediments and
macrophytes places the stream in the two poorest
categories
of the
Illinois stream sediment
classification system.
Edison App.
3 at
11
Through analysis of hypothetical scenarios using conditions
considered
typical of those on the lower Des Plaines,
Dr.
Ewing
estimated the effect of temperature increases on
DO,
BOD,
ammonia
nitrogen, and fecal coliform bacteria.
His conclusions
for these
parameters are:
Except under extreme worst-case conditions,
the DO is
expected
to decrease less than 10
due
to temperature
1(~5
157
—10--
rises resulting from thermal load of the Joliet
Station.
The greatest value projected for the DO
decrease caused by temperature
increase was 15
at the
lower end of the Five—Mile Stretch under summer
conditions with low flow and assuming the high
bacterial decomposition rate constant, k,
equal
to 0.3
per day.
This scenario predicts DO values less than
4.0 mg/i,
which has not been observed to occur.
It is
concluded that this far range of conditions
is more
adverse to the DO regime than actually occurs.
It
is
not likely that the DO will decrease more than 10
under any usual conditions.
At average stream flow,
the decrease in DO and BOD
will be less than 10
and at maximum flow the decrease
will be less than
5
under all
summer conditions and
at all decomposition rate constants.
Under the winter
conditions,
the DO and SOD will decrease less than 8
at the lower end of the reach and less than 5
at the
upper
end, even under the worst conditions.
The increase in temperature resulting from the Joliet
Station thermal load will decrease the SOD in the
Five—Mile Stretch by percentages slightly less than
for DO.
This
is due
to the effect of
temperature
increase in speeding up the bacterial decomposition of
organic matter.
The more rapid decomposition would be
considered desirable for
the self—purification of
the
stream if the DO depletion is not too great.
The ammonia nitrogen would
be decreased at higher
temperatures because of the more
rapid nitrification.
The percent un—ionized ammonia would
be increased 14
but the remaining total ammonia would be decreased
about
12
so
the net effect would be very small.
The
effect
of the increased nitrification on DO
is
reflected
in the DO analysis because
the oxygen
depletion
is based on a rate constant for combined
carbonaceous and nitrogenous SOD exertion.
There would be significantly fewer
fecal coliform
organisms surviving in the stream due
to the faster
die—away at higher temperature.
This would be the
change of
the greatest magnitude.
Since the waters of
the Lower
Des Plaines River are not used
for public
water supply,
for body contact recreation,
or
for
shellfish production,
the decreased coliform organism
count
would
not
be very
important.
The overall result is that some water quality
parameters wduld be slightly worse and some would
be
somewhat better as a result of a temperature
—11—
increase.
The net effect would be small.
It
is
concluded that these hypothetical analyses provide
a
reasonable estimate of
the magnitude of the
temperature effect on water quality and that
it would
be virtually impossible
to measure the actual effect
because of
the many confounding variables and the
small change involved.
Edison App.
3 at 11-12
Dr. William M.
Lewis
Dr.
Lewis discussed the current status
of the fish community
of the lower Des Plaines River.
He also provided his estimation
of what improvements in the fish community may be reasonably
expected
in the future.
He noted that studies
indicate that
improvement
in the Des Plaines
had occurred from 1977—1987, as
indicated by a trend of increase
in species diversity (Edison
App.
4
at
3).
He cautioned,
however,
that “there are still water
quality problems which apparently continue
to limit species
diversity”,
as indicated by the high incidence
of disease and
physical abnormalities found in fish collected
(Id.).
He also
stated that the nature of the diversity appears questionable
in
that “many
of
the new species appear so seldom and
in such
limited numbers as
to suggest that they are
not newly established
members
of the community,
but more likely are recent invaders
that are not destined
to persist”
(Id.).
Lewis testified that current observations continue
to
indicate poor water quality,
as shown
by chemical analysis
of the
sediments which indicate levels of heavy metals
in the “Highly
Elevated” and “Extreme” categories, and high levels
of heavy
metals
found in microphytes collected from the Des Plaines
(Edison App.
4 at
1-2).
He further noted
that barge traffic
through the Five-Mile Stretch is pronounced,
adding that while
“repeated resuspension of sediment by barge traffic probably
hastens decomposition of toxic sediment,
there
is little question
but that the preponderance of environmental effects of barge
traffic
is negative”
(Id. at
2).
He finally concluded that “the thermal discharge from Edison
upstream plants has not adversely affected the fish community of
the Five—Mile Stretch and that
there
is little or no basis
to
anticipate
that
the extent of elevation of
the temperature as now
exists will have any adverse effects”
(Edison App.
4 at
5).
Dr. Robert
G.
Otto
Dr.
Otto presented
a synopsis of the other
consultants
reports and
a summary of the ecosystem implications of each of
the components
of
the various testimonies.
11)5—159
—12--
Dr. Otto underscored Dr. Ewing’s testimony that the heat
discharges from the Joliet Station interact with the ambient
water
in several ways.
On balance, Dr. Otto concluded:
tihese
changes would be considered to be
advantageous in the overall recovery of the water
courses, both ecologically and with regard to human
health.
Heat discharges at Joliet Station are, at
worst,
a benign factor
in the overall chemical
dynamics of
the system and,
at best, play a positive
role in the restoration of
a desirable physical--
chemical environment.
Edison App.
5 at
6
Dr. Otto pointed out the complex factors which have,
and
which
in his opinion will continue
to, determine the ecological
quality of the lower Des Plaines River:
The drainage receives an extraordinary variety of
domestic,
industrial and urban runoff—type wastes
that have historically resulted
in a highly degraded
character for both the water quality and sediment
conditions.
Sections of the channel have been
straightened and dredged with the associated loss of
habitat diversity to facilitate a high volume of
barge traffic.
These barges continually resuspend
the bottom sediments causing high turbidity and
enhancing the release of contaminants
to the water.
The natural character of
the river has been totally
disrupted for a considerable distance downstream of
the Station.
There has been
a significant public effort
in recent
years
to improve environmental conditions
in the
drainage.
This has included major expenditures
for
upgrading public water treatment and wastewater
storage facilities.
There have also been substantial
improvements
in control
of non—point source inputs.
The actual improvements
in water quality and
associated enhancements of opportunities for public
use of the waterways are difficult
to define and may
lag expectations
to some degree.
Nonetheless,
there
is substantial momentum for demonstrating
improved
water quality or enhanced recreational use/esthetic
appreciation of the drainage.
...
the
Company
Edison
is anxious
to assure this Board
that
operations
at Joliet Station do not,
in any way,
impede the recovery and restoration process.
Edison App.
5 at 5-6
11)5—161)
—13-
Dr. Otto noted that,
given the many
complex impacts of man
on the lower Des Plaines River,
it
is difficult even to define
what constitutes
“significant ecological damage” related
to
a
single source
(Edison App.
5
at
3).
Dr. Otto testified that,
nevertheless,
an analysis of whether significant ecological
damage has occurred or
is likely to occur
should take into
consideration expectations for ecological structure and
function.
This includes analysis of
the types and amounts of
habitat,
and of the flora and fauna occupying comparable habitats
downstream
or comparable nearby waters.
In addition,
in the case
of the lower Des Plaines River,
it should
take into account the
ecological changes associated with diversions
from Lake Michigan,
upstream effluent discharges,
and habitat losses resulting from
channelization and constant disruption by barge traffic
(Id.
at
6—7).
Dr. Otto emphasized that the testimony of Dr.
Lewis shows
that
the lower Des Plaines River exists
in
a depauperate
ecological
state,
and that
it
is dominated by species
characteristic of degraded conditions
(Edison App.
5 at
7).
He
concluded,
as does Dr.
Lewis,
that there are pragmatic
limitations
on expectations
for the lower Des Plaines.
Most
significantly,
he and Dr. Lewis concluded
that the present and
projected future thermal regime of the river
is an insignificant
factor
in controlling the existing ecological balance
(Id.);
it
is also an insignificant factor which does not inhibit the
recovery process
(Id.).
Finally, among other points underscored by Dr. Otto was
Dr.
Kennedy’s observation that,
given
a total
shutdown of the Joliet
Station over
a minimum period of one hour,
the rate of
temperature decline
at the 1—55 bridge would
be at the most on
the order
of even less than that which often occurs on a daily
basis due to natural
factors alone
(Edison App.
5 at
5).
Dr.
Otto therefore suggests that variable operation of
the Joliet
Station should not lead to cold shock,
a winter affliction
associated with the abrupt loss of
heat,
of fishes within the
Five—Mile Stretch
(Id.).
AGENCY POSITION
The Agency supports Edison’s demonstration.
Among the
Agency’s conclusions
is that the Joliet Station’s discharge
complies with the temperature
limits set forth
in both the
Secondary Contact and General Use Standards.
The Agency
therefore agrees with Edison that
compliance with all present
thermal standards currently exists.
The Agency further accepts
Edison’s commitment
to load manipulation at
the Joliet Station as
assurance of continued compliance ~-7iththe General Use Standards
at
the 1—55 bridge
(Agency Brief at
2).
1~5--161
—14—
The Agency’s principal position is that the subject waters
are an impaired segment of the Des Plaines River, and that the
present water temperature regime is not likely to be the limiting
factor of a more diverse aquatic assemblage.
The Agency notes
that
it has used several sources of information upon which
it
bases this conclusion.
Among these are findings of Agency
surveys on the river system and a review of discharges to the
river
(Agency Brief at
4).
The Agency reviews the water quality of the Des Plaines
Basin in
its Brief,
noting such matters as the occurrence of
limited use support, the existence of a sport
fish health
advisory on the lower Des Plaines River, and the large volumes of
wastewater which characterize the flow of the river
(Agency Brief
at 4--5).
The Agency further emphasizes that many water quality
problems exist
in the lower
Des Plaines,
including phosphorus,
pH, dissolved oxygen,
ammonia toxicity, municipal and
industrial
discharges,
combined sewer overflows, urban runoff, and
agricultural runoff
(Id.
at
5).
Sediment composition
is also a
problem,
including its arsenic, chromium,
lead, mercury,
zinc,
cadmium, chiordane,
DDT, and dieldrin components
(Id.).
The Agency also points out that bioassays of the Joliet
Station effluent show no significant toxicity.
This contrasts
to
the toxicity of some other effluents
(that of the Joliet
municipal treatment plant
is cited)
for which bioassays show 100
mortality (Agency Brief at
6).
The Agency concludes that,
as long as the Joliet Station
meets all the applicable standards at the point of discharge and
in the downstream General Use wa?ers,
the Agency does not view
the Station’s thermal discharges as limiting the aquatic
diversity of
the receiving waters.
The Agency therefore
is of
the opinion that
it has been successfully demonstrated that the
Edison’s thermal discharges have not caused and cannot be
reasonably expected to cause significant ecological damage
(Agency Brief at
7—8).
SIERRA CLUB POSITION AND PETER
H. HOWE
Sierra Club raises several challenges to Edison’s general
contentions noted above,
including alleged violations of Section
302.211, which will be discussed more fully below.
As
a
preliminary
matter,
the Board further
notes
that Sierra Club in
its brief
cites
a number of
studies which Edison alleges are not
part
of the record
in this proceeding.
In its reply brief,
Edison moves
that these references
be stricken from Sierra Club’s
brief.
The Board finds that all but two of the
references
alleged were not made part of the
record.
The Board denies
the
motion to strike.
However,
the Board has not considered the
studies which were not made part of the record,
nor
the arguments
based thereon,
in its determination in this proceeding.
11)5-- 162
—15—
Sierra Club argues that heat discharges
from the Joliet
Station have probably caused significant harm to the environment
and may well cause such harm in the future.
Sierra Club raises
several specific challenges
to Edison’s presentation here,
including whether the heat discharge causes significant
increases
in unionized-ammonia, contributes
to low dissolved oxygen levels,
causes harm to fish spawning and development
through temperature
variations,
causes reduction in fish populations through cold
shock
or heat aversion, increases toxicity of pollutants already
present
in the waterway, and destroys macrophyte populations.
Sierra Club also challenges whether Edison’s operations plan will
assure that there will be no adverse effects on aquatic life.
Sierra Club relied to a large extent upon the testimony of Peter
H.
Howe,
former supervising biologist for Edison, who testified
as a member of the public
in this proceeding.
His testimony,
which
includes many of the same concerns of Sierra Club,
is also
discussed here.
Ammonia Nitrogen and Dissolved Oxygen
Sierra Club does not challenge Dr. Ewing’s conclusions
regarding heat from the Joliet Station
reducing total ammonia due
to increased nitrification while increasing the percentage of
unionized ammonia.
However, Sierra Club does question whether
or
not significant nitrification
is
in fact occurring
in the seven
miles between Joliet Station and the 1—55 Bridge.
Sierra Club
quotes a Metropolitan Sanitary District of Greater Chicago
(“MSDGC”)
June 1987
Water Quality Proposal cited by Mr. Howe in
his testimony, which apparently states that
“there ~s little
nitrification of ammonia within the MSDGC waterway”°(Sierra Club
Brief at
21—24).
Mr. Howe further questioned whether or
not
chlorination of
the cooling water
or entrainment (movement of
organisms through the condenser cooling system) may also affect
nitrifying bacteria such that significant nitrification does not
occur
(Howe Exh.
2 at
25).
Sierra Club questions Dr. Ewing’s conclusion that, although
the heat discharge decreases dissolved oxygen levels,
the effect
on dissolved oxygen levels
in the Five—Mile Stretch is very
small.
Sierra Club questions Dr.
Ewing’s hypothetical model,
stating that Ewing,
in his earlier
report, cautioned
that the
one—day SOD values may
be subject
to error due to lag time
in
oxygen consumption
(Sierra Club Exh.
9 at
6—7).
Sierra Club
argues from this that the DO values predicted by Dr. Ewing’s
6 The Board notes,
as does Sierra Club,
that
“the MSDGC waterway”
extends only to Lockport,
which
is
located upstream from the
Joliet Station.
It
does not therefore coincide with the reach of
the Des Plaines River under consideration herein.
11)5- -163
—16—
model may be too high
arid addition of heat may cause violations
of the DO standard that would not otherwise occur.
Effect on Fish Spawning and Development and Fish Populations
(Cold Shock, Heat Shock and Heat Aversion)
Sierra Club and Mr. Howe allege that the heat from Joliet
Station may be affecting fish in at least three ways.
These are:
1) decreased viability of gametes,
2)
thermal related mortality
of eggs and larvae, and 3)
premature spawning.
Sierra Club cites
Mr. Howe’s testimony wherein he discussed viability of fish eggs
of certain species:
The USEPA Laboratory in Duluth (Jones et. al.
1977)
has concluded based on studies that yellow perch and
probably other species require winter temperatures
for a certain length of time below 50°Fif gametes
are
to be viable.
If temperatures remained above
50°F,eggs would not be viable.
At temperatures
between
46 and 50°only a portion of the eggs would
be viable and
in order
for “all”
of the eggs
to be
viable average temperatures would have to remain
below 43°F.
(Howe Ex.
1 at
21—2)
Mr. Howe further stated that yellow perch in the absence of
elevated temperatures was hypothesized to become a common member
of fish assemblage of the lower Des Plaines as water quality
improves
(Id.).
He further noted that:
This species
is a common inhabitant of the Upper
Sanitary and Ship Canal and portions of the Chicago
River
as demonstrated
in studies of
this system
by
MSD Metropolitan
Sanitary District
biologists and
reported
in
Board
proceeding
R87—27.
.
.
It
is
reasonable
to conclude that large numbers of
this
species will migrate down the Chicago waterways and
populate the Lower Des Plaines as water quality
continues
to improve.
Some migration is already
occurring since this species
is periodically sampled
in the Lower
Des Plaines and Upper Illinois River
Segments of the Lower Des Plaines, such as the DuPage
River Delta where
large macrophyte growth
is
now
developing, would be ideal habitat for
this species
if maximum temperatures specified in the petition are
no longer present.
(!~-
at 14—5)
Sierra Club further states that Edison’s Report shows that
winter temperatures
in
1986—7 may not have been cold enough to
provide fish eggs the necessary “chill factor”.
The average
temperatures reported were above 46°F,with maximum temperatures
11)5 J(~!~
—17—
of 55°Fin December, 51°Fin January and 54°Fin February
(Report
at Table
7).
Sierra Club indicates that Edison’s Report at Table
7 shows
a maximum spring temperature at the 1—55 Bridge of 79°F
in May 1985,
1986,
and 1987, which
is above the maximum
temperature for embryo
survival or spawning success for black and
white crappie and smallmouth bass, as reported in Exh.
2 to Howe
Exh.
1
(See also Howe testimony, R.
at 539—40).
Mr. Howe stated:
Existing and maximum temperatures specified in the
Petition at
the 1—55
Bridge and even higher
temperatures
near
the station
in winter and early
spring months
are high enough
to result
in spawning
by fish
weeks earlier
than normal.
Howe Exh.
2 at
6
Sierra Club further states that temperatures approaching
the
63°/93°Flimitation of subsection 302.211(e),
as Mr. Hemminger
testified are possible
(R.
at 71—3),
could also be detrimental
to
fish spawning and larvae.
Sierra Club cites Dr.
Lewis’
testimony
that raising temperatures
to 90°Fin May could be detrimental
to
the larvae of some fish
(R.
at 177—8).
Sierra Club states that its Exhibit 10
indicates that
a 12°F
drop in temperature occurred over
a thirty six hour period
between June
8 and
10,
1988.
Mr.
Howe testified that had a such
a temperature drop occurred in early May,
there could have been
widespread mortality of the larvae of yellow perch,
northern
pike, and white bass
(R.
at 536—7).
Sierra Club argues that
in winter,
fish near the Joliet
Station discharge (Secondary Contact Water) may be subject
to
extreme temperature changes and suffer cold shock
(Sierra Club
Brief at
27—8).
Mr. Howe discussed that fish
in the Secondary
Contact Water may also suffer heat shock at
temperatures
allowable for Secondary Contact Water.
Neither Sierra Club nor
Mr. Howe argued that Edison’s discharge was causing exceedance
of
the Secondary Contact standards for
temperature.
Sierra Club
also argues that some fish, particularly walleye,
might avoid
high temperatures
(heat aversion)
by going over the Dresden Lock
and Dam and hence be
lost to the Des Plaines System,
since the
dam effectively blocks all upstream migration (Howe Exh.
1
at
19,
Howe Exh.
2
at 16—17,
and P.
at
174—5).
Mr. Howe added:
Many species
in the mesothermal group such as walleye
and many species of catostomids such as redhorse
species and white suckers will avoid maximum
temperature increases specified in the Petition for
the General Use Segment when these temperatures are
several degrees above those
that would normally exist
in this area and there
is a significant temperature
gradient
in the waterway.
Howe Exh.
1 at
19
105--165
—18—
In conclusion,
Sierra Club argues that Edison has not shown
the extent of
its contribution to the temperature variations or,
the extent to which heat from the Joliet Station may cause
abnormal levels of mortality of fish in early life stages.
Toxicity of Other Pollutants and Effect on Macrophyte Populations
Sierra Club raises the question of the cumulative effect of
heat discharge on other pollutants,
stating that the toxicity of
most substances increases as temperatures rise
(See also,
Dr.
Ewing,
Hearing Examiner Exh.
3 at 2).
Sierra Club cites Mr. Howe’s testimony that on the basis of
his observations of cooling ponds, maximum temperatures between
90°and 93°Fmay eliminate or significantly reduce rnacrophyte
populations
(Howe Exh.
2 at 20).
Mr. Howe further supported his
conclusions by studies showing that marsh grasses were eliminated
at temperatures similar
to those which occurred in the Des
Plaines in 1988 (maximum temperature of 30°C) (Howe Exh.
2 at 20—
1).
Sierra Club challenges the Edison petition as incomplete
because studies were not conducted on possible
losses of
macrophytes caused by 1988 temperatures
(R. at 85), and because
the petition did not address limiting temperatures for
macrophytes or wetlands
(Sierra Club brief at
29—31).
This type
of investigation of the effect of temperature on the macrophyte
community was also suggested by Mr. Howe
(Howe Exh.
2 at 21—22).
Challenges to Operations Plan
Sierra Club also challenges Edison’s operations plan as
untested, citing Mr. Hemminger’s
testimony that Edison
is
in the
process
of
installing
and
field
testing
the
revised temperature
flow
and monitoring system, and that the testing had noL been
completed as of
the date of his testimony
(P.
at 68—9).
DISCUSSION AND CONCLUSIONS
Violations of Water Quality Standards
Much has been made in this record of alleged compliance or
non—compliance with the Section 302.211(d)
and
(e)
standards
in
the Five—Mile Stretch.
Edison first contends that 3O2~2ll(d)and
Ce)
do not apply
to discharges from the Joliet Station’,
and,
second,
that the discharges do not cause violations of 302.211(d)
or
(e).
Sierra Club contends that violations have been recorded,
The Board notes that the Agency
joins Edison
in this
contention.
105—166
—19—
and
implies that Edison is at least partially responsible for
them.
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
General Use waters to cause or contribute
to exceedances 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 matter 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
in 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.
Sierra Club also argues that Joliet Station has contributed
to exceedances
of the limits contained in 302.211(e)
at the
Dresden Island Lock and Dam,
located on the Illinois River
approximately 1.5 miles below the Five—Mile Stretch.
Sierra Club
observes that
in August 1987
a temperature of 94°Fwas recorded
there
(Sierra Club Exh.
3), which
is
4 F°above the temperature
prescribed in 302.211(e).
The Dresden Island Lock and Dam is
located downstream from another Edison power
plant,
the Dresden
Station.
Edison does not dispute the occurrence
of the
temperature cited by Sierra Club.
However,
it does dispute
that
the Joliet Station significantly contributed
to that temperature,
noting
that the Dresden Station
is a more immediate source of
heated effluent, and that the Dresden Station discharge
is
largely governed by the performance of
the cooling pond at
Dresden
(P.
at
68).
It
is not shown that the one incident of
a 94°Ftemperature
at Dresden Island Lock and Dam was
in fact caused by the Joliet
11)5 167
—20—
Station or Dresden discharge,
or
that higher intake temperatures
at
the Dresden facility had caused the 94°Ftemperature, or even
that higher intake temperatures at Dresden are caused by the
Joliet Station and not by other causes.
The Board cannot on this
basis find that Edison’s Joliet Station causes significant
ecological damage
in the Illinois River.
Determination
Pervading both the original promulgation of 302.211(f) and
the three variances previously granted to Edison has been the
belief both by the Board and by the participants
that at some
future time the Five—Mile Stretch would improve to the point
where its water quality was limited solely by thermal
discharges.
Upon promulgation of 302.211(f)
the Board noted that
several major projects were then underway which would result in a
reduction of the pollution load to the Des Plaines River
(10 PCB
77).
On this basis the Board found
“that by July 1978,
temperature will be a limiting factor
to the attainment of a
desirable aquatic biota in the Des Plaines River below the 1—55
bridge”
(Id.).
However, by the time 1978 arrived,
it had
to be
conceded concomitant with the granting of variance
in PCB 78—79
that the Board’s earlier hopes had not materialized.
Similarly,
again
in 1981 and 1984 the Board found
in
PCB
81-24 and PCB 84—33
that other factors continued to override the effect of
temperature on the Five—Mile Stretch.
Today,
inspite of the passage of another
five years, and
more than 17 years after
the prospect was first raised before the
Board, the Board must still find that temperature is not a factor
limiting the water quality of the Five—Mile
Stretch, and that
other
factors continue
to override the effect
of temperature on
this waterway.
Some of these factors,
as noted in the record,
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
(see above Otto testimony and
Agency position).
The Board does not find this a happy result.
Moreover,
it
is also a result which the Board earnestly hopes can
be reversed
in a not—distant
future.
However,
it
is the
condition today.
It
is within this framework that the Board must now turn
to
the heart of
the matter at hand:
i.e.,
whether Edison has
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.
Upon review of Edison’s presentation,
Sierra
Club’s and Peter Howe’s submittals, and the Agency’s position,
as
noted
above,
the
Board
finds
that
Edison
has
successfully
made
the demonstration at this time.
11)5—16R
—21—
The Board believes that Edison has a viable monitoring
program,
as described by Thomas Hemminger, which,
although not
field tested at
the time of hearing,
is capable
of assuring
adjustments
to operations should they prove necessary to ensure
compliance.
The Board also finds convincing,
based on Dr.
Kennedy’s studies,
that complete mixing is achieved and no plume
effect
is recognizable at points prior
to completion of transport
of effluent
to the 1—55 bridge.
Also,
the temperature difference
upon shut down
is minor.
The Board
is further convinced that Dr.
Ewing’s testimony
indicates that the net effect
of temperature increase upon the
parameters he studied
is small.
Although Sierra Club and Peter
Howe raise certain questions regarding some of these parameters,
particularly regarding ammonia nitrogen and dissolved oxygen,
nothing was provided which would indicate that substantial damage
is occurring due
to ammonia or
lack of dissolved oxygen caused by
Joliet Station heated effluent.
Furthermore, the Board
finds
Dr.
Ewing’s conclusions regarding the net effect
of the increase
in
unionized—ammonia and the DO values predicted
(even under
summer/low
flow
conditions)
were not rebutted.
The
Board
finds
the many concerns
regarding fish spawning
and development, and effects upon macrophyte population
raised by
Sierra Club and Peter Howe to be the same as could be raised
regarding any Illinois waterway which receives heated effluent.
Most of
the concerns note problems that could occur while
temperatures are within the limits for the General Use
or
Secondary Contact waters.
The concerns are more in the nature of
challenges to the Board’s water quality standards for
temperatur~,and are therefore beyond the scope of this
proceeding
.
Furthermore,
there is no substantive evidence that
the suggested problems are
in fact occurring,
and
if so,
that
they are caused by the Joliet Station heated effluent.
It
is
also not shown that the species mentioned are indigenous
to this
waterway, and
if
not, whether
these species are affected by heat
such that other constituents are not limiting factors.
Again,
although regrettable,
it cannot be ignored
that other factors
continue to exist which have
a limiting effect
on this particular
waterway.
Sierra Club and Peter Howe seem
to
maintain that heat
is the sole limiting factor for certain species.
From the
evidence presented
in this proceeding,
this
just cannot be said
with certainty at
this time.
8
It
is
to be noted
that this type
of examination of
the
temperature limits was suggested by Peter Howe
(Howe Exh.
1 at
36).
11)5—16~
—22—
Revisitation
The Board has given consideration as to whether Edison
should be required to revisit the instant matter at some future
date.
The spur
for this consideration is that long—standing hope
that the Des Plaines River will experience a significant
improvement
in water quality related
to non—thermal conditions.
Should the improvement be enough,
there then might exist
justification for further limitations on Edison’s thermal
discharges.
The question is thereby raised as
to whether
a thermal
demonstration made successfully today
could also be made
successfully in the future.
A collateral question
is whether,
as
a consequence, Edison should be required to revisit its
demonstration at that future
time.
The Board
finds that the
first of these questions has marginal relevancy.
As regards the
second,
the Board finds
that
it has limited authority to require
revisitation
in the instant proceeding,
but nevertheless that
in—
place processes are sufficient to cause revisitation should that
action ever be warranted.
Section 302.211(f)
requires
the Board to look at future
conditions
to the extent that the phrase “cannot be reasonably
expected to cause” implies
a judgment on anticipated
conditions.
However,
it
is a substantial and unwarranted jump
from this judgment on the future to the much longer—range
question of whether conditions
in the Five-Mile Stretch will
change to the point where today’s thermal demonstration could no
longer hold up.
Not the Board,
nor anyone, has a crystal ball of
clarity sufficient to answer
this question.
If nothing else,
the
protracted history of this matter
in its various incarnations
should teach us that speculative determinations
in the instant
arena are only likely
to produce ghosts
to haunt those who follow
us.
The Board therefore finds that
it cannot speculate as
to
whether Edison’s demonstration made today could also be made at
some future date.
The only appropriate question
is whether the
demonstration is made today.
Assuming arguendo that there
is grounds
to find that today’s
demonstration would
not
be successful
in the future,
the Board
can find no basis
in this limited proceeding
to allow for
a
revisitation.
As the thermal demonstration rules are crafted,
they do not require
a petitioner to address speculative future
circumstances, and
it would be neither appropriate nor necessary
for the Board to
so condition the instant determination.
In
short,
Edison either has made its demonstration or has not made~
its demonstration.
1fl5~-i7fl
—23—
The question
is also raised
(Howe Exh.
2
at
28—9;
Sierra
Club Brief
at
35) as to whether
the Board might require
revisitation through a condition imposed
in a variance.
However,
the Board finds also that this action would not be appropriate.
The instant proceeding
is not
a variance proceeding, and none
of
the tests necessary thereto have been addressed.
Moreover,
Edison contends that
a variance
is unnecessary.
It contends
that
it
is
in compliance with all the Board’s thermal discharge
regulations
(R.
at
80; Edison App.
1 at 2,3),
and hence
that
a
variance from thermal standards
is not requested and cannot
be
justified.
The Board’s practice,
in fact,
is not to grant
variances where the petitioner has not demonstrated
it would be
in violation absent the grant of variance
(e.g.,
The Village of
Grove Village
v.
IEPA, PCB 84—158,
62 PCB 296;
City of West
Chicago
v.
IEPA, PCB 85-2,
64 PCB
251;
Villaoe
of Minooka
v.
IEPA,
PCB 85—100,
65 PCB 529; Village
of Spring Valley
v.
IEPA,
PCB 88—181,
Slip Op.
at
7, January
5,
1989).
Moreover, Edison
has attempted no showing that compliance with the existing
thermal
standards constitutes an arbitrary or unreasonable
hardship,
a showing which
is
a prerequisite
for the granting of
variance from any standards.
Similarly, Edison does not request another variance from
making its required thermal demonstration.
To the contrary,
it
herein presents its case that
a successful thermal demonstration
has been made,
in
agreement
with
the conditions imposed upon
it
by the Board in the prior variances.
Likewise, Edison has
attempted no showing
that compliance with the requirement
to make
the thermal demonstration now would constitute
an arbitrary or
unreasonable hardship.
In balance, therefore,
the record currently before the Board
contains
no grounds upon which
the Board could grant Edison
a
variance, yet alone impose
a variance condition requiring some
revisitation.
This
is not
to conclude, however,
that Edison
is absolved by
today’s action from any future burden of compliance with either
existing
or prospective future regulations, including water
quality standards.
Today’s action,
for example, does not absolve
Edison from compliance with the thermal standards
for either
the
Secondary Contact
or General Use portions of
the Des Plaines
River.
Neither does
it insulate Edison from compliance with any
amended thermal standards which might
in the future be
promulgated for
the Des Plaines River.
All today’s action does
is determine that Edison at
this date, and based solely on
Edison’s showing that no significant ecological damage can
be
expected
as
a consequence of its thermal discharge,
is not
required to make additional
efforts to correct the ecological
damage.
No similar determination
is
implied or
intended should
Edison’s thermal discharges become,
at some future
time,
the
cause of ecological damage.
Edison
will
have
to
revisit the
effects of its thermal discharges
in that event.
1fl5--171
—24—
It must additionally be pointed out
that Edison appears to
be
fully aware that
(1) future regulatory changes could negate
the consequences of today’s determination, and
(2)
the impact of
Edison’s thermal discharges will remain under regular
scrutiny
under both federal and State programs.
Edison notes,
for
example:
Edison
anticipate(s)
the need to have to address
thermal discharges into that water body Des
Plaines
River
in the future, because
Edison
knows
that the
state
is considering revisions to water quality
standards.
R. at
77
Edison
speculates that the Board may deem it
necessary to re—examine thermal discharges if water
quality improves
to a level that in their opinion
makes
a thermal discharge a controlling factor
in the
quality of the stream.
P.
at
78
Should,
in fact, Edison’s speculation about revisions of
the
water quality standards applicable
to the Des Plaines River come
true, Edison would be required to take whatever steps necessary
to comply with those revised regulations.
Scrutiny of Edison’s thermal discharges comes
under Agency
and USEPA review at a minimum of every
three years,
pursuant to
renewal of Edison’s NPDES permit.
At these times Edison must,
among other matters,
demonstrate that it
is not
in violation of
any thermal standards
(P.
at
94).
Similarly, any person at any
time may bring an enforcement action on the grounds
that .the
Edison
is
in violation of any thermal standards
or its permit
requirements.
Edison’s inability
to show that it
is
complying
with all pertinent regulations
under any such circumstances could
negate
the consequences of today’s determination.
In balance,
therefore, the Board
finds
that there are
sufficient safeguards
in place, and that
no formal requirement
to
revisit this matter
is necessary or appropriate.
Surnniary
In summary,
the Board finds
that Edison has demonstrated
that the heated effluent discharged
from the Joliet Station has
not caused and cannot
be reasonably expected to cause significant
ecological damage
to the General Use waters of
the Five—Mile
Stretch.
This Opinion constitutes the Board’s
findings
of
fact
and
conclusions of law in this matter.
11)5—172
—25--
ORDER
The Board finds
that the Commonwealth Edison Company has
complied
with
35
Ill.
Adm.
Code
302.211(f),
in
that
it
has
demonstrated
that
the
thermal
discharges
from
itsJoliet
Generating
Station
have
not
caused
and
cannot
reasonably
be
expected
to
cause
significant
ecological
damage
to
the
receiving
waters.
IT IS SO ORDERED.
Chairman John C. Marlin concurred.
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
~
,
1989,
by a
vote of
7—c
.
V
/~
Dorothy
M.,1-çunn, Clerk
Illinois Pc~lutionControl Board
105—173
