ILLINOIS POLLUTION CONTROL BOARD

May 26, 1977

CENTRAL ILLINOIS PUBLIC SERVICE

COMPANY,

 (COFFEEN POWER STATION),

Petitioner,

v.

)

 PCB 77-2

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

OPINION AND ORDER OF

THE

BOARD

 (by Mr.

 Zeitlin):

Central Illinois Public Service Company

 (CIPS)

 first filed a

Petition for Variance in this matter on January

3,

 1977.

 In an

Interim Order entered January

6,

 1977,

 the Board found that Petitions

inadequate,

 and deferred action on the case pending receipt of an

Amended Petition.

 Following receipt of CIPS’ Amended Petition on

February

22,

 1977,

 the Board entered another Interim Order, dated

March

3,

 1977,

 setting the matter for hearing pursuant to a timely

objection filed by the Environmental Protection Agency

 (Agency).

The Agency~sRecommendation was filed on April 22,

 1977, and

recommended that CIPS be granted the relief requested in its Amended

Petition,

 but also recommended that relief be granted for a substan-

tially shorter period of time than had been sought.

 The Agency also

recommended certain conditions

 to accompany any Variance grant.

On

April

28,

 1977,

 the Board entered a final Interim Order granting an

Agency motion filed April

25,

 1977,

 requesting leave to withdraw its

Objection and asking that the matter be decided without hearing.

Accordingly,

 no hearing was held in this matter.

CIPS’

 Variance Petition and Amended Petition concern discharges

from Coffeen Power Station

 to Coffeen Lake, and seek relief from

Rules 203(i)(l-4),

 (Thermal Standards),

 408(a),

 (Suspended Solids,

Iron), and 203(f),

 (Dissolved Solids,

 Boron), of Chapter

 3: Water

Pollution,

 of this Board’s Rules and Regulations.

CIPS’ Coffeen Power Station and Lake has been the subject of

previous Board consideration.

 On March

28,

 1974,

 the Board entered

a final Opinion and Order denying a Permit Appeal brought by CIPS

with regard to discharges

 into Coffeen Lake from the power station,

finding that Coffeen Lake

 is a protected water of the State.

Central

 Ill. Public Service Co.

v.

 EPA, PCB 73—384,

11

 Ill. PCB

677

 (1974);

 aff.’d, Central

 Ill. Public Service Co.

 EPA and

Pollution Control Board,

 344 N.E.2d 229

 (Ill. App. Ct.,

 5th Dist.,

Feb.

2,

 1976); rehearing denied, March 25,

 1976;

 leave to Appeal

Denied,

 Ill.

2d

____,

 (Ill., Sept.

29,

 1976)

 Both the Board’s

—

577

and the 5th District Appellate Court’s Opinions adequately describe

the facility in question, and the complete reiteration of the under-

lying facts need not be reiterated here.

Briefly, construction of the 880,000 Kw Coffeen Station commenced

in

 1962;

 one of the two units came on line in 1965, and the second

came on line in 1972.

 The Agency’s initial denial of an Operating

Permit for discharges from the power station to Coffeen Lake led

to our decision in PCB 73-384,

 supra, and the subsequent appeal.

The crux of CIPS’

 theories on appeal was that Coffeen Lake consti-

tuted a treatment facility for discharges from the power station;

that theory has never prevailed.

Following the Illinois Supreme Court’s decision not to allow

appeal, CIPS co2mnenced planning for the control of discharges to

Coffeen Lake.

 We agree that this belated planning for discharge

limitation constitutes neither bad faith nor dilatory conduct,

inasmuch as CIPS had

 until that time

—-

 pursued an arguably

valid theory

 in a case of first impression,

 that those discharges

were not subject to the discharge limitations from which Variance

is now sought.

 We therefore do not find that Board precedent

concerning self—imposed hardship and belated Variance requests

is

applicable

 to the instant case.

As CIPS’

 Petition and Amended Petition make clear,

 however,

CIPS’ pursual of legal remedies now raises another problem with

regard

 to the requested Variance:

 Specifically, sufficient sampling

and theoretical data does not exist to allow full compliance with

those provisions of Procedural Rule 401 requiring a complete

description of existing discharges, environmental effects, and

a

compliance plan for full abatement of all violations.

Accordingly, CIPS has requested Variance from the thermal

discharge requirements of Rule 203(i),

 the violation of which has

apparently been ascertained, and from Rules

 203(f)

 and 408(a).

With regard to the latter two requests, CIPS’

 Petition

 is based

on limited United States Environmental Protection Agency

 (U.S.

 EPA)

sampling for a limited

 time period and area.

 Further, because of

the relatively

 recent:

t:ermi

na

Li

on of

 1 i.ti qation CIPS states that

its compliance plan for these discharges has not been fully

 formu—

lated.

 Two consulting firms have been retained, and CIPS will not

be committed to

 a final compliance plan until after June 15,

 1977,

following submittal of the consultants’

 reports.

CIPS’ Variance Petition and Amended Petition are therefore

unclear as to final compliance plans and dates for all discharges

into the lake, although various interim control measures are

delineated.

 With regard only to the thermal component of its

effluent into the lake, CIPS has indicated that it will file

a

Petition for specific thermal standard pursuant to Rule 203(i) (10)

of Chapter

3.

25

—

578

Based on those uncertainties,

 the Agency has recommended that

the requested Variances be granted as follows:

 (1) Variance from

Rule 203(i)

 to be granted until May 31, 1977;

 (2) Variance from

Rules 203(f)

 and 408(a)

 to be granted until August 30,

 1977.

We agree that

 a Variance is warranted in this situation.

It

appears that a requirement of immediate compliance would impose

a

significant hardship.

 Absent the additional research required to

determine the extent of the existing violations, and the effect

thereof,

 the evidence indicates that no significant environmental

harm will be occasioned by the grant of the requested Variance for

a limited period of time.

 As noted in our Opinion in R75—2, Cooling

Lakes,

 18 PCB 681

 (1975), artificial cooling impoundments often

 support well-balanced aquatic ecologies.

 The Petitioner here alleges

(without contradiction)

 that this finding is applicable

 to Lake

Coffeeti, which

 is said to support a significant fishery.

 Accordingly,

we do not feel that the grant of a limited Variance here will cause

any excessive environmental damage.

We shall, however,

 limit the Variance grant to that period

necessary to determine the necessity and extent of any longer term

Variances from Rules

 203(f)

 and 408(a), and to allow the filing of

and decision upon a Rule

 203(i) (10) Petition with regard to the

thermal component regulated by Rule 203(i).

 At the conclusion of

such Variance period,

 additional,

 specific information will allow

informed decision on any longer Variance period.

Because of the limited period of the Variance to be granted, no

further conditions are necessary.

This Opinion constitutes the findings of fact and conclusions

of law of the Board

 in this matter.

ORDER

IT IS THE ORDER OF THE POLLUTION CONTROL BOARD that:

1.

 Petitioner Central Illinois

 Public Service Company be

granted Variance from the thermal discharge standards

 in Rule 203(i)

(1-4)

 for discharges

 from its Coffeen Power Station to Coffeen Lake

until November 30,

 1977,

 on the condition that an adequate petition

for specific thermal

 standard pursuant to Rule 203(i) (10) be filed

 by June

15,

 1977.

2.

 Petitioner Central Illinois Public Service Company be

granted a Variance from Rules

 203(f) and 408(a)

 of Chapter

 3: Water

Pollution until August 30,

 1977.

25

—

579

—4--

 Christan

 L. Moffett, Clerk of the Illinois Pollution

Control Board, hereby certify the above Opinion and Order were

adopted on the ~~j~day

o:E

 1977,

 by a vote of

Illinois Pollutio:

 ‘ontrol Board

—

580