ILLINOIS POLLUTION CONTROL BOARD
June 5, 1997
CENTRAL ILLINOIS PUBLIC SERVICE
COMPANY (COFFEEN POWER
STATION),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 97-131
(Variance - Water, NPDES)
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter comes before the Board on the petition for variance filed by Central Illinois
Public Service Company (CIPS or petitioner) on January 30, 1997 and amended on February
24, 1997. CIPS seeks a five-year variance from the thermal standards applicable to Coffeen
Lake which were adopted on March 19, 1982 in PCB 77-158. Coffeen Lake is an artificial
cooling lake located at CIPS’ Coffeen Station in Montgomery County, Illinois. CIPS waived
hearing on the petition and no hearing was held.
On April 21, 1997 the Illinois Environmental Protection Agency (Agency) filed its
variance recommendation accompanied by a motion to file instanter, which is granted. The
Agency recommends that the variance be granted, subject to certain conditions, despite its
reservation about the lack of economic information provided by CIPS in the petition.
The Board's responsibility in this matter arises from the Environmental Protection Act
(Act) (415 ILCS 5/1
et seq
. (1994)). The Board is charged therein with the responsibility to
"grant individual variances beyond the limitations prescribed in this Act, whenever it is found
upon presentation of adequate proof, that compliance with any rule or regulation, requirement
or order of the Board would impose an arbitrary or unreasonable hardship.” (415 ILCS 5/35(a)
(1994).) The Agency is required to appear in hearings on variance petitions. (415 ILCS 5/4(f)
(1994).) The Agency is also charged, among other things, with the responsibility of
investigating each variance petition and making a recommendation to the Board as to the
disposition of the petition. (415 ILCS 5/37(a) (1994).)
For the following reasons, the Board finds that CIPS has presented adequate proof that
immediate compliance with the thermal standards for Coffeen Lake would result in the
imposition of an arbitrary or unreasonable hardship. Accordingly, the variance is granted,
subject to conditions set forth in the attached order.
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BACKGROUND
CIPS is an investor-owned electric and gas public utility, providing service to central
and southern Illinois. (Am. Pet. at 5.) Electrical service is supplied to 315,000 customers in
557 communities in a 21,000 square mile area. (Am. Pet. at 5.) CIPS employs approximately
2350 people. (Am. Pet. at 5.)
Coffeen Lake is an artificial lake constructed between 1961 and 1963 by CIPS for the
purpose of providing cooling water for Generating Units 1 and 2 (350 and 600 megawatts
respectively). (Am. Pet. at 1.) The current thermal standards applicable to Coffeen Lake are
as follows:
The thermal discharge to Coffeen Lake from Central Illinois Public Service’s
Coffeen Power Station shall not result in a temperature, measured at the outside
edge of the mixing zone in Coffeen Lake, which: 1) exceeds 105 degrees
Fahrenheit as a monthly average from June through September and 112 degree
Fahrenheit as a maximum for more than three percent of the hours during that
same period; 2) exceeds 89 degrees Fahrenheit as a monthly average from
October through May and 94 degrees Fahrenheit as a maximum for more than
two percent of the hours during the same period.
CIPS is requesting that the current thermal standards applicable for the months of June
through September be applicable one month earlier in May and be extended a month
later to include October, i.e. that the relaxed summer standard be applicable from May
through October. (Am. Pet. at 5.)
Historically, CIPS has been able to meet the applicable thermal standards during
May and October because either one or the other of the units at Coffeen were scheduled
for extended annual maintenance outages during either May or October. (Am. Pet. at
2.) In the mid-to-late 80’s, CIPS converted from a twelve to an eighteen month
maintenance schedule to reduce costs. (Am. Pet. at 2.) Consequently, the maintenance
outages no longer occur in May and October. (Am. Pet. at 3.) CIPS asserts that
compliance with the more restrictive winter standards in the months of May and
October is problematic due to the likelihood of warm early season temperatures and
high carryover temperatures from a long, hot summer. (Am. Pet. at 2.)
REGULATORY FRAMEWORK
In determining whether any variance is to be granted, the Act requires the Board to
determine whether a petitioner has presented adequate proof that immediate compliance with
the Board regulations at issue would impose an arbitrary or unreasonable hardship. (415 ILCS
5/35(a) (1994).) 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. IPCB, 135 Ill. App. 3d 343, 481 N.E.2d 1032, (1st
3
Dist. 1977).) Only with such a showing can the claimed hardship rise to the level of arbitrary
or unreasonable hardship.
A further feature of a variance is that it is, by its nature, a temporary reprieve from
compliance with the Board's regulations and compliance is to be sought regardless of the
hardship which the task of eventual compliance presents an individual polluter. (Monsanto Co.
v. IPCB, 67 Ill.2d 276, 367 N.E.2d 684, (1977).) Accordingly, except in certain special
circumstances, a variance petitioner is required, as a condition to grant of variance, to commit
to a plan which is reasonably calculated to achieve compliance within the term of the variance.
COMPLIANCE PLAN
No additional thermal controls are planned at the Coffeen Station. (Am. Pet. at 6.)
Assuming that the requested variance is granted, CIPS intends to petition the Board to have the
interim variance limits established as permanent site-specific standards at the end of the
variance period. (Am. Pet. at 6.) No later than three years after the variance becomes
effective, CIPS will request that the thermal standards of the variance be adopted in a site-
specific rule. (Am. Pet. at 3.) CIPS maintains that the variance is necessary prior to filing of
a petition for a site-specific rule to allow collection of data so that the Board need not rely on
speculative presentations on the impact on the fisheries in reviewing the site-specific rule.
(Am. Pet. at 3.) CIPS contends that the field data collected during the variance period will
form the basis for a more compelling demonstration. (Am. Pet. at 4.) In addition, CIPS
observes that seeking a site-specific rule without the variance would mean that it would be at
least two years before the lake could be operated at the higher temperature. (Am. Pet. at 4.)
In recent years, CIPS has employed additional operational constraints to remain in
compliance with current standards. (Am. Pet. at 8.) These constraints include making the
Coffeen units the last to be called upon to meet increased demands and the first to be backed
off when the demand drops, curtailing interchange sales, and cycling off the units on weekends
and longer periods. (Am. Pet. at 8.)
CIPS evaluated the thermal performance of Coffeen Lake and various alternatives that
would allow for higher generation levels. (Am. Pet. at 8.) Four cooling tower options were
reviewed after the evaluation. (Am. Pet. at 8.) However, due to high initial capital costs and
ongoing operating and maintenance expenses, all of the alternatives were rejected. (Am. Pet.
at 8.) CIPS believes that these costs were not practical considering the infrequent and
unpredictable nature of when they would be needed. (Am. Pet. at 9.)
HARDSHIP
CIPS claims that there is nothing in the record from PCB 77-158 that supports the
applicability of the more restrictive winter standards in May and October. (Am. Pet. at 9.)
CIPS maintains that no other CIPS power station is required to meet the most restrictive
standards for May and October, and that at Newton Lake (another CIPS artificial cooling lake)
there is a single, uniform monthly limit that applies year-round. (Am. Pet. at 9.)
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CIPS maintains that the operational constraints employed to assure compliance result in
substantial costs. (Am. Pet. at 9.) CIPS believes that the limitations restrict CIPS’ ability to
market the full capacity of the Coffeen Station. (Am. Pet. at 10.) As a result, CIPS asserts
that it cannot fully participate in a market that would benefit both ratepayers and shareholders.
(Am. Pet. at 10.) CIPS argues that this is an unreasonable and unnecessary deprivation of
utility assets. (Am. Pet. at 10.)
The Agency argues that it cannot agree or disagree with CIPS’ contention that the costs
incurred by taking Unit 2 out of service are substantial, since documentation of these costs are
not included in the petition. (Am. Pet. at 3.) The Agency also observes that CIPS failed to
further explain its statement that continuing to meet the applicable thermal standards imposes
an arbitrary and unreasonable hardship on CIPS and its ratepayers. (Am. Pet. at 3.) The
Agency also points out that while CIPS references the year-round standard applicable to
Newton Lake to support its variance request, CIPS has filed a variance for the thermal
standards applicable to Newton Lake (PCB 97-159).
ENVIRONMENTAL IMPACT
CIPS does not anticipate that any significant environmental impact will result from the
variance. (Am. Pet. at 9.) However, during the period of the variance, lake temperature data
for May and October will be closely monitored and compared to historical data. (Am. Pet. at
9.) In addition, the annual fish surveys will be reviewed by the Department of Natural
Resources (DNR) to verify that there is no significant impact. (Am. Pet. at 9.) CIPS agrees to
revert back to the current limits if at any time the data shows, or the Agency or DNR believe,
that the thermal standards of the variance are causing a significant adverse impact. (Am. Pet.
at 9.)
The Agency does not believe that any adverse environmental impact will result from
the variance. (Ag. Rec. at 4.) The Agency submits that DNR will continue to monitor the
status of the fishery and provide biological information to CIPS. (Ag. Rec. at 4.)
CONSISTENCY WITH FEDERAL LAW
CIPS maintains that the Board has the authority to grant the requested relief consistent
with the Clean Water Act (33 U.S.C. 1251
et seq.
(1972)), United States Environmental
Protection Agency (USEPA) effluent guidelines and standards, and all other Federal
regulations or USEPA approved management plans. (Am. Pet. at 10.) Under Section 316(a)
of the Clean Water Act, Illinois is authorized to set thermal limits to protect shellfish, fish and
wildlife. (Am. Pet. at 11.)
The Agency concurs that there are no applicable federal laws or regulations that
preclude the granting of this variance. (Ag. Rec. at 4.)
DISCUSSION
5
The party requesting the variance has the burden of establishing that the hardship
resulting from denial of a variance outweighs any injury to the public or the environment from
a grant of the variance. (Caterpillar Tractor Co. v. IPCB, 48 Ill.App.3d 655, 363 N.E. 2d 419
(3
rd
Dist. 1977).) The petitioner must go further and show that the hardship it will encounter
from the denial of the variance will outweigh any injury to the public or environment from the
grant of the variance. (City of Geneva v. IEPA (March 22, 1990), PCB 89-107.)
In Marathon Oil Co. v. IEPA, 242 Ill. App. 3d 200, 610 N.E. 2d 789 (5
th
Dist. 1993)
the appellate court found that Section 35(a) of the Act does not require that petitioner
demonstrate that it is out of compliance with the rule or regulation prior to seeking a variance.
It found that "evidence presented was 'adequate proof' that continued compliance with the
current water-quality standards will impose an arbitrary or unreasonable hardship." In so
finding the appellate court stated that when the petitioner presents "unrefuted" evidence that it
will violate the Board's rule in conducting or increasing its normal business, a hardship is
established requiring the Board to determine if such hardship outweighs any injury to the
environment. (Marathon Oil, 242 Ill. App. 3d 200, 610 N.E. 2d 789 at 794.) When deciding
whether to grant or deny a variance request, the Board is required to balance the hardship of
continued compliance on the business against the adverse impact the variance will have on the
environment.
The Board agrees with the Agency that the record could have contained more economic
information, but nonetheless finds that CIPS has presented adequate proof of the existence of a
hardship. Such economic information would have quantified the alleged hardship that CIPS
asserts it would encounter were it required to continue to comply with the thermal standard for
May and October. However, the Board will not require CIPS to supplement the record with
additional economic information at this point in the proceeding. The Board finds the record
sufficient to support CIPS’ assertion that continued compliance with the thermal standards for
May and October prohibits CIPS from fully utilizing the station’s capacity and limits CIPS
from increasing its business resulting in a hardship.
Having determined that CIPS has presented adequate proof of a hardship, the Board
must weigh that hardship against the environmental impact of the variance. The record
demonstrates that the grant of the variance should not result in any adverse environmental
impact. The variance only affects the thermal standards for the months of May and October.
The thermal standards for the remaining ten months are not affected. Throughout the period
of the variance, CIPS along with the Agency and the Department of Natural Resources will
monitor the fishery for any impact from the variance. If any impact is noticed, CIPS will be
required as a condition of the variance to revert to the thermal standards as established in PCB
77-185.
Based upon the record, the Board finds that immediate compliance with the current
thermal standards for the months of May and October at the Coffeen Station is an arbitrary and
unreasonable hardship. Further, the Board finds that CIPS’ hardship outweighs any
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anticipated impact on the environment from the variance. Therefore, the Board grants the
requested variance with conditions.
Finally, the Board notes that the conclusions it reaches based upon the record of this
variance proceeding do not prejudge merits of any petition for site-specific rulemaking that
CIPS may file in the future. The burdens of proof and the standards of review in a rulemaking
(a quasi-legislative action) and a variance proceeding (a quasi-judicial action) are distinctly
different.
(#Cf. Titles VII and IX of the Act; see also Willowbrook Development v. Pollution
Control Board, 92 Ill. App. 3d 1074, 416 N.E.2d 385, (2d Dist. 1981).) The Board cannot
lawfully prejudge the outcome of a regulatory proposal in considering a petition for variance.
(City of Casey v. IEPA (May 14, 1981), PCB 81-16, 41 PCB 427, 428.)
This opinion constitutes the Board's findings of fact and conclusions of law in this
matter.
ORDER
Central Illinois Public Services Company is hereby granted a variance from the thermal
standards applicable to Coffeen Lake as established on March 19, 1982 in PCB 77-158 subject
to the following conditions:
(A)
The variance commences on June 5, 1997 and terminates on June 5, 2002.
(B)
During the period of the variance, the thermal discharges to Coffeen Lake from
the Coffeen Power Station may not result in a temperature, measured at the
outside edge of the mixing zone in Coffeen Lake, that:
1. Exceeds 105 degrees Fahrenheit as a monthly average from May through
October, and a 112 degrees Fahrenheit as a maximum for more than 3% of
the hours during that same period.
2. Exceeds 89 degrees Fahrenheit as a monthly average from November
through April, and a 94 degrees Fahrenheit as a maximum for more than
2% of the hours during that same period.
(C)
Within sixty (60) days after the variance is granted, CIPS shall submit a
monitoring plan to the Illinois Environmental Protection Agency that
demonstrates how CIPS, in conjunction with the Illinois Department of Natural
Resources will continue to study the thermal effects on the fishery in Coffeen
Lake. If the Illinois Department of Natural Resources cannot conduct the study,
then CIPS shall provide a contingency plan demonstrating how the study of the
fishery will continue.
(D)
CIPS shall petition the Board for permanent site-specific relief within three (3)
years of the granting of this variance. If a petition for site-specific relief is not
7
filed within three (3) years or if site-specific relief is denied, CIPS shall revert
back to complying with the thermal limits set out in PCB 77-158.
(E)
If the Illinois Environmental Protection Agency or Illinois Department of
Natural Resources determine that the thermal standards of the variance are
causing an adverse impact to Coffeen Lake or adverse conditions such as a
fishkill result, CIPS shall adhere to the standards set out in PCB 77-158. .
(F)
During the variance period, CIPS shall continue to operate its facility so as to
produce the best effluent practicable.
CERTIFICATION
If CIPS chooses to accept this variance subject to the above order, within forty-five
days of the date of this order, CIPS shall execute and forward to:
Margaret P. Howard
Illinois Environmental Protection Agency
Division of Legal Counsel
2200 Churchill Road, P.O. Box 19276
Springfield, Illinois 62794-9276
a Certificate of Acceptance and agreement to be bound to all terms and conditions of the
granted variance. The 45-day period shall be held in abeyance during any period that this
matter is 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
this variance is granted. The form of the certificate is as follows.
I (We), ____________________________________________, hereby accept and agree
to be bound by all terms and conditions of the order of the Illinois Pollution Control Board in
PCB 97-131, June 5, 1997.
_______________________________________
Petitioner
________________________________________
Authorized Agent
_______________________________________
Title
________________________________________
Date
IT IS SO ORDERED.
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Board Member K.M. Hennessey abstained.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1994)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of the date of
service of this order. The Rules of the Supreme Court of Illinois establish filing requirements.
(See also 35 Ill. Adm. Code 101.246 "Motions for Reconsideration.")
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 5th day of June, 1997, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
