BEFORE THE ILLINOIS
POLLUTION
CONTROL BOARD
IN THE MATTER OF:
AMEREN
ENERGY
GENERAflNG
CO.,
)
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent.
)
)
)
EEVED
CLER(<’S
OFFICE
SEP
16
20U9
STATE
OF
ILLINOIS
Pollution
Control
Board
)
PCBNo.09-38
)
(Thermal
Demonstration-Water)
)
)
)
)
NOTICE OF FILING
To:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100
West Randolph
Chicago, IL 60601
Gabriel
Rodriguez
SCHIFF HARDTh1, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, IL 60606
Amy Antoniolli
SCHIFF HARDIN, LLP
6600
Sears Tower
233
South
Wacker Drive
Chicago,
IL 60606
David
Loring
SCHII’F HARD1N, LLP
6600
Sears Tower
233 South Wacker Drive
Chicago,
IL 60606
PLEASE TAKE NOTICE that I have today
filed with the Office of the Clerk
of the
Illinois
Pollution Control Board
the
POST-HEARING BRIEF OF THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY, a
copy of which is herewith served
upon
you.
ILLINOIS
ENVIRONMENTAL PROTECTION
AGENCY
Dated:
September 14, 2009
Illinois
Environmental Protection
Agency
1021
North Grand Avenue East
Post Office
Box 19276
Springfield,
Illinois 62794-9276
(217)
782-5544
By:
Joey Log -Wil
y
Assistant
Counsel
Division
of Legal Counsel
THIS
FILING PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION
CONTROL
BOARD
IN THE MATTER OF:
CLERIc’S
OFFE
AMEREN ENERGY
GENERATING
CO.,
)
SEP
162009
Petitioner,
)
POIItj
STATE
OF
Control
ILLiNOIS
Board
)
v.
)
PCB No.
09-3 8
)
(Thermal Demonstration-Water)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY
)
)
Respondent.
)
POST-HEARING BRIEF
OF THE ILLINOIS
ENVIRONMENTAL PROTECTION
AGENCY
NOW
COMES the Respondent, ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY, by and through Joey Logan-Wilkey, one of its
attorneys, and submits its
post-
hearing brief to the Illinois Pollution Control Board
(“Board”). The
Agency recommends
that the Board DENY Ameren’s petition because
Arneren has failed
to meet its burden of
proof
under 35 Iii. Adm. Code 106.200(a), and
35 Ill. Adm. Code
302.211(j).
I. INTRODUCTION
On December 15, 2008, Ameren filed a petition to
modify the site specific
thermal limits
granted by the Board pursuant to 35 Ill.
Adm. Code
302.211(j)(5) on
March 19,
1982, which requires that the discharge
from the
Coffeen Power Station in
Montgomery County
to its artificial cooling
lake known
as Coffeen Lake
shall not result
in a
temperature, measured at the outside edge
of the mixing
zone,
that
exceeds 105
degrees
Fahrenheit as a monthly average
from June through
September, and 112 degrees
Fahrenheit as a maximum for more than three
percent of the
hours during that same
period; and
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
that
same period.
These thermal
limits
were incorporated
into Ameren’s
NPDES
Permit
as Special
Condition No.
5.
Ameren
is
proposing
to modify
the
specific
thermal
standard
for
its discharge
to
Coffeen
Lake
to
state
that
the thermal
discharge
shall
not
result in a
temperature,
measured
at the
outside
edge
of the
mixing
zone,
which
exceeds
105
degrees
Fahrenheit
as a
monthly
average,
from
June through
September,
and
112
degrees Fahrenheit
as a
maximum
for
more
than three
percent
of
the hours
during that
same
period;
exceeds
89
degrees
Fahrenheit
as a monthly
average,
from November
through
April,
and 94
degrees
Fahrenheit
as
a
maximum
for more
than
two percent
of the
hours
during
that same
period;
and exceeds
96 degrees
Fahrenheit
as
a monthly
average, in
each
of the
months
May
and October,
and 102
degrees
Fahrenheit
as a maximum
for more
than two
percent
of
the hours in
each of those
same months.
The Illinois
EPA
filed
its
recommendation
regarding
Ameren’s
petition
on April
24,
2009,
recommending
that
the Board
deny Ameren’s
petition
to
modify
the
thermal
standard
for Coffeen
Lake. The
Agency
recommended
that the
Board deny
the petition
because
Ameren
had
failed to
meet its
burden
under
Section 28.1(c)
of the
Act,
415
ILCS
28.1 (2008),
35
Ill.
Adm. Code
106.200(a),
and
35
Ill. Adm.
Code
302.211(j).
Ameren
has failed
to
demonstrate
that
the
proposed
modification
is environmentally
acceptable
and
within
the intent
of the Act,
and
has
failed
to demonstrate
that the alternatives
to the
proposed
modification
to the
thermal standard
are
technically
infeasible
and
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FILING
IS PRINTED
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economically
unreasonable.
The Board
conducted
the
public hearing
in
this matter
on
June 23, 2009.
Ameren
filed its
Post-Hearing
Brief
in this
matter
on
August
13,
2009.
II. ARGUMENT
A.
Ameren has
failed
to meet
its
burden
of
proof regarding
the
ability
of Coffeen
Lake
to
continue
to be environmentally
acceptable
and
within
the
intent
of the Act
under
the proposed
modification
to the thermal
limits.
Ameren
argues
that
it
is not required
to
make a
showing
of no
environmental
impact,
and that
the
existence
of
a
fishery
is not
required.
Section
302.21
1(j)(3)
of the
Board
regulations
provides
the
standard
of
review
for artificial
cooling
lake
demonstrations:
“At an
adjudicative
hearing
the
discharger
shall
satisfactorily
demonstrate
to
the Board
that the artificial
cooling
lake
receiving
the
heated effluent
will
be
environmentally
acceptable,
and
within
the
intent
of
the Act,
including,
but
not limited
to: (A)
provision
of
conditions
capable
of
supporting
shellfish,
fish
and wildlife,
and
recreational
uses
consistent
with
good
management
practices,
and
(B)
control of
the
thermal
component
of
the discharger’s
effluent
by
a technologically
feasible
and
economically
reasonable
method.”
35
Iii.
Adm.
Code 302.211(j)(3).
Ameren
concedes
that artificial
cooling
lakes
must be
capable
of supporting
a
fishery,
citing to
the
Board opinion
In
the
Matter
of: Water
Quality
and
Effluent
Standards
Amendments,
Cooling
Lakes, R75-2
slip
op. at 25
(Sept. 29,
1975). In
that
opinion,
the
Board stated:
“Generally
formed
by
damming
an existing
watercourse
which
is itself a
protected
water
of
the state,
such
artificial
cooling
lakes
remain
subject
to
the
Board’s
water
quality
and effluent
standards.”
Cooling
Lakes,
R75-2,
slip op. at
4
(Sept.
29, 1975).
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Dr.
James McLaren,
in his hearing
testimony on
behalf
of Ameren,
states
that
SILT
has reported
the entrapment of fish
in coves
near
the mixing zone, resulting
in fish kills.
Dr. McLaren
stated
that SIIJC,
regarding the
fish that have become
entrapped and
died,
is
“citing
specifically within
the discharge
arm where they have
taken refuge,
but with
a
prolonged
temperature
increase, have for
one
reason
or another, not vacated
that water
for temperatures
in the lake better suited
for
their preference,
their tolerance.
So on one
occasion,
some limited
numbers of fish
have been
killed.”
Hearing
transcript,
p.
131,
lines
4-11.
When asked if
SRJC “concluded
that the cause
of these entrapments
was
sudden
temperature rise”
Dr. McLaren
stated “Yes, sudden and
prolonged
temperature
rise.”
Hearing transcript,
p.
133,
lines
2-6. Dr. McLaren also
testified
that
he
would
agree
that
“at least
some
of the angling
related fish mortalities
were
caused
by—
were
in
part caused by thermal
stress.” Hearing
transcript,
p.
134,
lines 5-10. When
asked
whether he was aware
if any states have
used
the concept
of degree days
in setting water
quality standards,
Dr. McLaren responded
that
he
“would
venture
to say
that that would
be
a
misapplication
of
degree
days.” Hearing
transcript,
p.
135, lines 2-3.
Dr.
McLaren
relied
on the concept of degree
days in
the ASA report, the technical
supporting
document
for the
proposed
standards, which would
in effect
be
water quality standards
for the Lake
if adopted
by
the Board.
With
regard to the Upper Incipient
Lethal
Temperature (“UILT”)
for
fish, Dr.
McLaren
acknowledged
that
for largemouth bass
the UILT is 97.3 degrees
Fahrenheit,
while
the
preferred
temperature
for that species
is 79.7 to 89.6 degrees
Fahrenheit.
Hearing
Transcript
pp.
153-154.
Dr. McLaren
acknowledged, in his
hearing testimony,
that the lethal
end points “would likely
be exceeded
with the three species
that
we’re
4
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looking
at
by the
maximum
temperatures
for
May
and October.”
Hearing
Transcript
p.
155,
lines
4-8.
Ameren’s
primary
witness
regarding
impacts
of
the
proposed
temperatures
on
the
fish
stated
that
the lethal
end
points
for
largemouth
bass,
bluegill,
and
channel
catfish
would
be
exceeded
by
the proposed
thermal
standard
for
May
and
October.
Temperatures
that
exceed
lethal
end points
for three
of
the
Lake’s
RIS
are
not
indicative
of
conditions
that
support
fish,
shellfish,
and
wildlife.
Moreover,
Dr.
McLaren
acknowledged
that the
three
RIS
studied
are
heat tolerant
species.
Hearing
Transcript
at
p.
154.
So
what
does
that
mean
for
the
other
species
of
fish that
exist
in Coffeen
Lake?
Those
species
would
likely
show
even greater
negative
impact
from
the
proposed
standards
if
studied.
For
example,
Dr. McLaren
stated
that
white
crappie,
another
species
that
lives
in
the Lake,
is
less
heat tolerant
than
the
RIS.
Hearing
Transcript,
p.
154.
When
questioned
about
the three
RIS
cited
in
IDNR’s
Lake
Management
Status
Report
for
2007
(“Report”),
Dr.
McLaren
acknowledged
that
the
Report
states
that
relative
weight
for
bluegill
was
only
82-89,
while
the
Lake
Management
Goal
was
90-
110,
and that
the
relative
weight
for
catfish
was
only
89.
Hearing
Transcript,
p.
172-177.
When
asked
what
IDNR
meant
by
stating
in the
Report
that
the
channel
catfish
“population
continues
in anguish”
Dr.
McLaren
stated
“I
have
no idea.”
Hearing
transcript,
p.
177.
If
the RIS
in
the Lake
are “in
anguish”
under
the
current
thermal
regime,
what
effect
will
the
proposed
temperature
increase
have
on
those
populations?
The
Board
established
the
burden
of
proof
for
artificial
cooling
lakes,
that
they
must
be
environmentally
acceptable
and
within
the
intent
of
the Act.
Ameren
claims
this
burden
is
very
easy
to meet.
They
claim
that
the
Board’s
opinion
in
R75-2
supports
their
view
that
the
fishery
need
not
be optimal.
In
R75-2,
the
Board
considered
whether
there
5
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was
“any
degradation
of
water quality”
in
the
artificial cooling
lake
that could
be
attributable
to
the power
plant’s
thermal effluent,
including
lake
levels
of phosphorus,
mercury,
and dissolved
oxygen.
Slip
op.
at 16.
The Board
used
Lake
Sangchris
as an
example
of an
artificial
cooling
lake
that
did not
exhibit
a
degradation
of water
quality,
specifically
stating
that the
lake had
low levels
of phosphorus,
and
mercury levels
were
“rarely
at the detectable
limit.”
Id.
The Agency
has presented
evidence
that
Coffeen
Lake
is currently
out of compliance
with mercury
and phosphorus
water quality
standards
and
that
increased
thermal
loading
may
exacerbate
those
violations.
Coffeen
Lake
is currently
on the
Aency’s
303(d)
list
of
impaired
waters
for its
phosphorus
levels.
Ameren’s
witness,
Dr.
Ann
Shortelle,
testified
at
hearing
that the
proposed
modification
may
cause
an
increase
in the Lake’s
phosphorus
level.
When
asked
whether the
proposed
increased
thermal
standards
for
May
and
October
would
result
in
an increase
in the
phosphorus
in the
Lake, Dr.
Shortelle stated:
“The
blue
bar
graph,
but the specific
numbers using
those
two
flux rates
was
an
additional
- - in
round
numbers,
48 kilograms
of
phosphorus
per
year
to
96 kilograms
of
phosphorus
per year.”
Hearing
Transcript
p.
225,
lines 19-23.
Dr.
Shortelle
also
testified
that
the
use
of
different
flux
rates account
for the differing
calculations
of
the
internal
loading
of
phosphorus
in the Lake.
The evidence
presented
at
hearing
showing that
phosphorus
will
increase under
the
proposed
temperatures
demonstrates
that
the proposed
thermal
standard is
not environmentally
acceptable
and within
the intent
of
the
Act. Dr. Shortelle
also
testified
that increasing
lake
temperature
may
also increase
the methylation
of
mercury in
the Lake.
This
is
further
evidence
that the
proposed
modification
to the
thermal
standard
is not
environmentally
acceptable
and
within
the
intent
of the Act.
6
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The
Board
in
75-2 also
discussed
dissolved
oxygen
in artificial
cooling
lakes
when
assessing
the
impact
of thermal
effluent
on
water
quality.
The proposed
modification
to
the
Lake’s thermal
standard
may
also
result
in
violations
of the
Dissolved
Oxygen
water
quality
standards of
35 Iii.
Adm. Code
302.206.
The evidence
presented
at
hearing
shows
that an
increase in
temperature
in
May
and
October
will
increase the
number
of
anoxic
days. Dr.
Shortelle
testified
that the
increased
temperatures
in
May and October
would
increase
the number
of anoxic
days
from
18 to
23
days
in
segment
1 and
17 to 25
days
in
segment
2
in May,
and
an increase
in segment
1 from
1 to 13 days
and in
segment
2
from 1 to
11 days in
October.
Hearing Transcript
p.
228
lines 19-25,
p.
229
lines
1-5.
During
the hearing,
Mr.
James Williams,
manager
of
the Coffeen
Power
Station,
testified
that
Ameren
does
not
monitor
the temperature
of the discharge
from
the Lake
to
the stream.
The
regulations
require
that
any
discharge
from the Lake
to the
stream
must
meet
the thermal
standards.
The
Board regulations
at 35
Iii.
Adm.
Code
302.21 1(j)(1)
state
that “All
discharges
from
the
artificial
cooling lake
to other
waters
of the State
comply
with
the
applicable
provisions
of subsections
(b) through
(e)” of
35 111. Adm.
Code
302.2
11. In
addition
to the
numeric limits
in subsection
(e), overflows
from
Coffeen
Lake
must
also comply
with
the
following
requirements
of
the
Board
regulations:
there
shall be
no abnormal
temperature
changes
that may
adversely
affect
aquatic
life
unless
caused
by
natural
conditions,
35 Iii.
Adm.
Code
302.211(b);
the
normal
daily
and
seasonal
temperature
fluctuations
which
existed
before
the addition
of
heat due
to
other than natural
causes
shall
be
maintained,
35 Ill. Adm.
Code 302.211(c);
and the
maximum
temperature
rise above
natural temperatures
shall
not exceed
2.8°C
(50
F),
35111.
Adm.
Code 302.211(d).
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If relief is
granted to Ameren,
the Board order
must specify the requirements
applicable
to Ameren
and how
compliance with these
conditions
will
be met.
In
the
current relief,
simply requiring
compliance
with applicable provisions
of 35 Iii.
Adm.
Code 302.211(b)
through
(e) has not
been sufficient
to assure
compliance
because
Ameren
is not required
to monitor
discharges
from
Coffeen Lake. Under
Section
302.21 1(j)(2) of the
Board regulations,
35 Ill. Adm.
Code 302.21 1(j)(2),
Ameren
must
demonstrate
that thermal
relief will
not result
in
violations of other water
quality
standards
in Subtitle
C of
the
Board’s
regulations. Failure
to do so requires
denial of the
artificial
cooling lake
demonstration.
B. Ameren
has failed to demonstrate
that there
are no
technically
Feasible
and
economically
reasonable alternative
treatment
technologies.
Section 302.211(j)(3)(B)
of the Board regulations,
35 Ill.
Adm. Code
302.211
(j)(3)(B),
states “At an adjudicative
hearing
the discharger
shall satisfactorily
demonstrate to the
Board that the
artificial cooling lake
receiving the
heated effluent will
be environmentally
acceptable, and
within the intent
of the Act,
including, but not limited
to
... (B) control
of the thermal component
of
the discharger’s
effluent
by a
technologically
feasible and
economically
reasonable
method.” There is
no dispute about
the alternative
technically
feasible methods
of control in this
case.
Derating
and cooling
towers are
both currently
utilized and could
be expanded.
During the
hearing,
Ameren presented evidence
that
the alternative
treatment
technologies
are not economically
reasonable,
and continues
to
make that
argument in
its
Brief.
Ameren is arguing
that investments
in supplemental
cooling must
pay for
themselves over
the
lifetime
of the equipment
in order to be
considered
economically
reasonable.
Ameren’s
definition
of economic
reasonableness
in this
context
is
whether
or
8
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PAPER
not a
thennal
technology
will
allow
Ameren
to generate
enough
additional
power
so
as to
see
an actual
profit
on the
investment
in
the supplemental
cooling
capacity.
Acceptance
of Ameren’s
economic
reasonableness
argument
in this
case
would
jeopardize
the
basis
of most
regulatory
decisions
that
require
a consideration
of
economic
reasonableness.
It
will
be a
very
rare
case
where
environmental
controls
result
in
a
profit
to
the regulated
entity.
Petitioner
states
“Ameren
has
already
made
substantial
investments
in
cooling
technologies
to
control
the Station’s
thermal
effluent
to
Coffeen
Lake.
Ameren
has
spent
$26
million
on
the construction
of a
70-acre
cooling
basin
and
a
48-cell,
200,000
gallon
per minute
(gpm)
cooling
tower
system.”
Petitioner’s
Brief
at 2.
Contrary
to
these
statements,
testimony
at
the
hearing
and a
review
of
the Record
makes
clear
that
these
investments were
undertaken
to increase
profits
at the
Coffeen
Station,
not
to improve
environmental
conditions
in
Coffeen
Lake
or to
increase
compliance
with
thermal
limits.
These
improvements
were
undertaken
after Ameren
came
to this
Board
requesting
regulatory
relief
in PCB
97-131,
making
the following
argument:
“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.)”
PCB
97-131
(June
5, 1997)
at
3.
After
arguing
that
the
installation
of
supplemental
cooling
would
cause
economical
hardship
and being
granted
relief
from
the Board
based
on
that
hardship,
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Arneren chose
to install
supplemental
cooling
technologies
to allow for increased
energy
production.
As
Mr. Williams
testified
for
Ameren
in the hearing
in
this
proceeding
on June
23, 2009:
“And
initially
when
we did the EVA [Economic
Value
Added],
it did
show 11
Vz
year
payback, which
meant I can invest
the
18 million,
and in 11
‘/2
years, it would pay back
on a capital
—
a
piece
of
equipment
that would
typically have a
15-year
capital
life.
Since
then,
as I mentioned,
we are in a deregulated
environment.
And
we annually
review all of our
capital
projects.
And in this EVA
model,
it
does show our forward
price curves,
as
well as any additional
environmental
projects we
may have.
And
when
we reran
the analysis,
it does come back that
it is a negative
$2.7
million.
So it is not economically
viable.”
Hearing
Transcript
at Page 16 at lines
7-19.
When both
the Board and the
Agency attempted
to clarify this
point, Mr. Williams
gave
the
same
explanation:
“Q
(Ms. Liu) “But
to
put it into
context,
you threw
out the
number negative
2.7
million.
That means it’s
not
economically viable.
At zero,
does it become
economically
viable,
or does
it
have to be
a positive number?”
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A
(Mr.
Williams)
“I’d have
to review
that, but you’d
want
it
to be
a
payback
period
before
you’d
make
an investment
and
lose
$2.7
million
through
the
life
of
a cooling
tower is
what
that analysis
would
show. Before
the life
of
that
cooling
tower,
I’d have
to — I’d
lose
money
there, and
plus
the
cooling
tower would
be
at the
end
of
its
life.
You’d
make — that’s
what the
analysis
would
take into
account,
the full life
expectancy
of
the cooling
towers.
So,
yes,
that’s correct.”
Hearing
Transcript
at Page
74, Lines
5-20.
“Q
(Ms.
Williams)
Just
to follow
up on the
Board’s
question.
Do
you
believe
that’s
the
economic
reasonableness
test
that the
Board
should
consider
whether or
not
Ameren
can
make a profit
off
the installation
of the
treatment
technology?
A
(Mr.
Williams)
No, I
don’t
believe
the profit.
It needs
to be
a
payback to
be economically
viable.
Q
So it
needs to be
zero
before
it’s
considered
economically
reasonable
by
the Board?
A
Yes,
and
it would
be considered,
correct.”
Page
74 Line
22 through
Page
75, Line
7.
The
installation
of additional
cooling
systems
and de-rating
are technically
feasible
and
economically
reasonable
alternatives
treatments
available to
Ameren.
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Ameren has failed to
demonstrate a
lack of
alternative
treatments that are
technically feasible and
economically
reasonable.
C. Ameren has failed to
make a 316(a) demonstration
that is consistent with
Federal Law.
1.
State Law
Section
302.211(j)
of the Board regulations, 35 Ill. Adm.
Code 302.211(j), sets
forth the requirements for an
artificial cooling lake demonstration,
allowing exceptions
from the
temperature
water quality
standards when all of the conditions
provided have
been met.
Failure
to comply with any
of
these
will require the Board
to deny the relief
requested. Section
302.21 1(j)(4)
states that the “required showing
in subsection (j)(3)
may take the form of an acceptable
final
environmental
impact statement
or pertinent
provisions of environmental
assessments used in the preparation
of the final
environmental impact statement,
or may take the form of showing
pursuant to Section
3 16(a)
of
the Clean Water
Act (CWA) (33
U.S.C.
1251 et
seq.), which addresses the
requirements of(j)(3).” 35111.
Adm. Code 302.211(j)(4).
Ameren argues that the list
of
formats
for the artificial cooling
lake
demonstration
are
illustrative
only and not mandatory and cites to the Board
Opinion in R75-2. The
Board likely did intend to provide some flexibility
and did not
intend
to require the
submittal of a 316(a) demonstration
by
the Petitioner
in all cases. The
Board still must
address whether Ameren has included all
of the information that
is
needed
to make its
decision.
The
relief requested must
take the form of a water quality
standard change
that
requires federal approval under Section
303(c) of the Clean Water Act.
Ameren correctly
points
out the uniqueness of the Clean Water Act’s treatment
of heat as a pollutant.
This
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is
true
under
State
law
as well.
Not
only
must Ameren
comply
with
the
requirements
of
State law,
but
the Board
should
ensure consistency
of the
interpretation
of
State law and
the
Clean
Water Act.
2. Federal
Law
Section
3
16(a)
of the Clean
Water
Act
states:
“With respect
to any
point source
otherwise
subject
to the
provisions
of section
1311
of this title
or section
13 16
of
this
title,
whenever
the owner
or operator
of
any
such
source,
after
opportunity
for
public
hearing,
can
demonstrate
to the satisfaction
of
the Administrator
(or,
if appropriate,
the
State)
that
any
effluent
limitation
proposed
for the
control
of the
thermal
component
of
any discharge
from
such source
will
require
effluent
limitations
more
stringent
than
necessary
to
assure
the projection
and propagation
of a balanced,
indigenous
population
of shellfish,
fish,
and wildlife
in and
on the body
of water
into which
the discharge
is
to
be
made,
the
Administrator
(or, if appropriate,
the
State)
may impose
an effluent
limitation
under
such sections
for
such
plant,
with respect
to the
thermal component
of
such discharge
(taking
into
account
the interaction
of
such thermal
component
with
other
pollutants),
that
will assure
the
protection
and propagation
of
a
balanced, indigenous
population
of
shellfish, fish,
and wildlife
in
and
on that
body
of
water.” 33
U.S.C.
§
1326.
Section
3
03(c) of
the Clean
Water
Act
states
as follows:
“Whenever
the State
revises
or
adopts
a new standard,
such
revised
or new
standard
shall
be submitted
to the
Administrator.
Such
revised
or
new
water
quality standard
shall consist
of the designated
uses
of
the
navigable
waters involved
and
the water
quality
criteria for
such
waters
based
upon
such uses...”
33
U.S.C.
§1313(c)(2)(A).
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In addition
to a site
specific
thermal
limit,
federal
law
would
also permit a water
quality
standard change
to take the
form of a change
in use designation
through
a use
attainability analysis.
In
its Petition,
Ameren
cites to
Section 28.1 of
the Environmental
Protection Act
as a basis
of its Petition
but does
not
mention the
Adjusted Standard
provisions from
that
Section
of the Environmental
Protection
Act in
its post-hearing brief.
Instead,
Ameren
simply
cites to the Board’s
thermal
regulations
for artificial cooling lake
demonstrations
in 35 Ill.
Adm. Code
302.211(j) and
the procedural requirements
in 35
Ill. Adm. Code
106.200
et al [sic].
Petitioner’s
Post-Hearing
Brief also
states that Ameren
“requests a
modification
to
the
thermal
limits
granted by the Board
in 1982 for the
cooling water
discharge
from Coffeen
Power
Station
(‘Station’) to
Coffeen Lake.”
Brief at 1.
In
1997,
when Ameren last came
to
the Board
for relief
from the May and October
thermal
limits,
it utilized a Variance
proceeding
for
temporary
relief.
See PCB
97-13 1.
However,
Ameren stated that it
would
Petition
the Board
for a site-specific rulemaking
after
three
years. PCB 97-13 1, slip
op.
at
page
3.
Ameren
is
vague
in identifying
the provision in the
Environmental
Protection
Act
that would
serve
as the
basis for the requested
relief. While
the initial
Board regulation
in R75-2
required
Artificial
Cooling Lake demonstrations
to be made in a regulatory
proceeding,
this was
later changed
to an adjudicatory
proceeding
but was addressed
independently
in the procedural
rules from
other types
of
adjudicatory proceedings.
The
Board cannot
generally
grant an
alternative
effluent limit where
that
effluent
limit will
result in the water
quality standard
being
violated
without creating
inconsistencies with
federal law.
Alternative
effluent
limits
including those that
grant
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relief from the
prohibition
against
causing
a violation of
water quality standards
(i.e., 35
Ill. Adm.
Code
304.105)
must
also be treated as a water
quality
standard
change
in order
to be
consistent
with
the
Clean Water Act.
See,
In the Matter
of: Site
Specific Rule for
City
of Effingham Treatment
Plant
Fluoride Discharge,
35 Ill. Adm.
Code
304.233,
R03-
11, First
Notice
Opinion
(July
24,
2003).
The Board
regulation
requiring that the
showing take
the form
of
a 316(a)
demonstration
is designed
to make the
Artificial Cooling Lake
demonstration
approvable
as a 3
16(a) demonstration
by
U.S. EPA,
permitting it be to included
in the
NPDES
permit.
Consistent with Section
303(c)
of the Clean Water
Act, an Artificial
Cooling
Lake
demonstration is a
regulatory relief
mechanism
(like an adjusted
standard or site-
specific
rulemaking)
that results in a
water quality standard
change
that
must be
submitted to
U.S.
EPA
for approval.
Absent
a change in the
use designation,
Ameren must
show that the site-specific
water quality
standard requested
will be protective
of aquatic
life
as designated
by the
General Use
standard. Ameren
has not
suggested
that this
is a change in use designation.
Ameren
must
show aquatic life
that live
in
Coffeen Lake will
be protected by
the relief.
Testimony
on
thermal
impacts
and impacts of the
thermal effluent
on other parameters
shows this
is
not the
case.
Because
the Agency believes
Ameren
has not made
a sufficient showing
to gain
federal
approval
of the relief requested
as a
water quality
standard change,
the
documentation
submitted
with this Petition
is not
sufficient.
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III. CONCLUSION
Pursuant
to 35
Ill. Adm.
Code
106.200(a),
and
35
Ill.
Adm.
Code 302.211(j),
the
Illinois
EPA recommends
that
the
Board
DENY Ameren’s
request
to
modify
the thermal
standard
for Coffeen
Lake.
Ameren
has
failed
to meet its
burden
under
the
Act
and
Board
regulations.
Ameren
has
failed
to
prove
that
the proposed
standards
will
be
environmentally
acceptable
and
within the
intent
of
the
Act.
Further,
Ameren
has failed
to
show
that
the
available
treatment
alternatives
are not economically
reasonable
and
technically
feasible.
The
installation
of
additional
cooling
technologies
and de-rating
are
available
treatment
alternatives
that
are
technically
feasible
and economically
reasonable.
WHEREFORE,
for the reasons
stated
herein, the
Illinois EPA
recommends
that
the Board
DENY
Ameren’s
Petition.
Respectfully
submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
By:
1
’c
—j
Joey
Logan-Wilkey
Assistant
Counsel
Division
of Legal
Counsel
Dated:
September
14, 2009
Illinois
Environmental
Protection
Agency
1021
North Grand
Avenue
East
Post
Office
Box
19276
Springfield,
Illinois
62794-9276
(217)
782-5544
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CERTIFICATE
OF
SERVICE
I,
Joey
Logan-Wilkey,
certify
that
I
have
served
the
attached
POST-HEARING
BRIEF
OF
THE
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
by first
class
mail,
upon
the
following persons:
John
Theirrault,
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph,
Suite
11-500
Chicago,
Illinois
60601
Gabriel
Rodriguez
SCHIFF
HARDIN,
LLP
6600
Sears
Tower
233
South
Wacker
Drive
Chicago,
IL
60606
Carol
Webb,
Hearing
Officer
Illinois
Pollution
Control
Board
1021
North
Grand
Ave.
East
P.O.
Box
19276
Springfield,
IL 62794-9276
Dated:
September
14,
2009
Amy
Antoniolli
SCHIFF
HARD1N,
LLP
6600
Sears
Tower
233
South
Wacker
Chicago,
Illinois
60606
David
Loring
SCHIFF
HARD1N,
LLP
6600
Sears
Tower
233
South
Wacker
Drive
Chicago,
IL
60606
Joey
Assistant
Counsel
Division
of
Legal
Counsel
Illinois
Environmental
Protection
Agency
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