Power Company Granted Relief from Illinois Thermal Water Quality Standards
- Client: Power company
- Date: March 2010
- Location: Illinois
Summary:
Schiff Hardin assisted its client, a power company, in securing from the Illinois Pollution Control Board an order modifying the thermal limits applicable to its cooling water discharge at one of its power stations.
The power station discharges its cooling water to an artificial cooling lake. The station continually monitors the discharge to ensure that it complies with seasonal thermal limits. Due to changing weather patterns in recent years, however, the station struggled to meet the limits during seasonal transitions in the months of May and October. This required the station to "de-rate" (cut back on power production) to reduce thermal loading on the lake. De-rating cost the power company millions in lost revenue over the years, and it asked Schiff Hardin to assist in obtaining relief from the station's May and October thermal limits.
Our Environmental Group developed the strategy for securing that relief. Invoking a rarely used procedure, our environmental attorneys prepared and filed a petition to modify the thermal limits with the Illinois Pollution Control Board. Our client had to establish that relaxing the thermal limits would not be harmful to indigenous biological communities in and around the lake, and that it had taken all technically feasible and economically reasonable efforts to meet the existing standard.
The petition was opposed by the Illinois Environmental Protection Agency and an environmental advocacy group. They claimed that the company's proposed thermal limits would be too high, and that because of past instances of fish kills in the lake, the company could not prove that increased temperatures would not harm biological communities.
Using decades worth of data collected by and on behalf of the power station, the Schiff Hardin team worked with experts to show that the lake and surrounding habitat could continue to support healthy and diverse biological communities even under the relief our client was seeking. We presented the testimony and reports of industry engineers, a fisheries scientist and a limnologist (lake biologist) to make the required demonstrations.
In March 2010, in a unanimous ruling, the Pollution Control Board granted our client's petition allowing for higher thermal limits in the transitional months of May and October. The Board found that the evidence of record amply supported the propositions that the proposed thermal limits would be environmentally acceptable and continue to provide conditions capable of supporting fish, shellfish and wildlife. On the key point of the documented instances of historic fish kills, the Board agreed with our arguments that years' worth of studies had documented very few and small fish kills, and that the legal standard focuses on harm to biological "communities" - not individuals - so that rare and minimal instances of fish mortality do not establish that lake conditions are harmful to its biological communities. To the contrary, the Board found that the evidence showed that the cooling lake is a thriving and robust fishery.