PCB 09-38 Ameren Reply Brief
1. Reply NOF and COS
2. Reply brief
Reply signature pg.pdf
1. Page 1

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AMEREN ENERGY GENERATING

COMPANY,

Petitioner,

ILLINOIS ENVIRONMENTAL

) (Thermal Demonstration)

)

NOTICE OF FILING

TO:

John Therriault, Assistant Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph, Suite 11-500

Chicago, Illinois 60601

Joey Logan-Wilkey

Illinois Environmental Protection Agency

Division

of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois

62794-9276

Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue, East

P.O. Box 19274

Springfield, Illinois 62794--9274

Deborah Williams

Illinois Environmental Protection Agency

Division

of Legal Counsel

1021 North Grand A venue, East

P.O. Box 19276

Springfield, Illinois 62794--9276

PLEASE TAKE NOTICE that I have electronically filed with the Office of the Clerk of the

Pollution Control Board,

POST-HEARING REPLY BRIEF OF AMEREN ENERGY

GENERATING COMPANY, copies of which are herewith served upon you.

Ameren Energy Generating Company

Electronic Filing - Received, Clerk's Office, September 28, 2009

Dated: September 28, 2009

Amy Antoniolli

SCHIFF HARDIN LLP

233 South Wacker Drive

Suite 6600

Chicago, Illinois 60606

Tel: 312-258-5500

Email: aantoniolli@schiffhardin.com

Electronic Filing - Received, Clerk's Office, September 28, 2009

CERTIFICATE OF SERVICE

I, the undersigned, certify that on this 28

day of September, 2009, I have served

electronically the attached,

POST-HEARING REPLY BRIEF OF AMEREN ENERGY

GENERATING

COMPANY,

upon the following persons:

John Therriault, Assistant Clerk

Illinois Pollution Control Board

therriau i@ipcb.state.il.us

Joey Logan-Wilkey

Illinois Environmental Protection Agency

Division

of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

233 South Wacker Drive

Suite

6600

Chicago, Illinois 60606

312-258-5500

CH2\7934896. 1

Carol Webb, Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

P.O.Box 19274

Springfield, Illinois 62794-9274

Illinois Environmental Protection Agency

Division

of Legal Counsel

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

Deborah. will iams@illinoi

s. gov

By:

A Y Antomolh

Electronic Filing - Received, Clerk's Office, September 28, 2009

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

AMEREN ENERGY GENERATING

(Thermal Demonstration)

ILLINOIS ENVIRONMENTAL

POST-HEARING REPLY BRIEF OF AMEREN ENERGY GENERATING COMPANY

NOW COMES AMEREN ENERGY GENERATING COMPANY (“Ameren” or “the

Petitioner” of “the Company”), by and through its attorneys, SCHIFF HARDIN LLP, and

provides this post-hearing reply brief for consideration by the Illinois Pollution Control Board

(“Board”).

INTRODUCTION

The post-hearing brief of the Illinois Environmental Protection Agency (“Agency”) does

not contradict or dispute any of the evidence or testimony introduced into this record by the

Petitioner. In this reply, Ameren responds to the mischaracterizations of the record and errors in

analysis set forth by the Agency in its post-hearing brief. The Agency also did not respond in

any way to Ameren’s proposed amended language or the Board’s question regarding conditions

to the requested relief at hearing.

New information provided with this brief in response to public comment received by the

Board in this proceeding is provided in the nature of public comment.

Electronic Filing - Received, Clerk's Office, September 28, 2009

II.

THE AGENCY’S REASONS FOR RECOMMENDING DENIAL ARE

BASED ON SPECULATION AND MISCHARACTERIZATION OF THE

OPINIONS OF AMEREN’S EXPERTS

The Agency’s reasons for recommending denial of Ameren’s petition are based on either

speculative propositions unsupported by any evidence of record or gross mischaracterizations of

the evidence and conclusions of the experts and scientific reports. The Agency selectively

quotes from the experts’ testimony, and misconstrues the testimony far beyond its true meaning.

The Agency does this repeatedly. The Board should ignore these arguments.

The Agency quotes Dr. McLaren, of ASA Analysis and Communication Inc. (“ASA”),

out of context numerous times throughout its post-hearing brief. For example, the Agency

quotes Dr. McLaren’s response to a question about the number of times degree-day data has been

used to establish new water quality standards. Dr. McLaren responded that that would not be an

appropriate use of that kind of data. Tr. at 135. The Agency then attempts to discredit Dr.

McLaren’s use of degree-day data, and all of his testimony by asserting that he relied on the

concept of degree days to support the requested relief. This argument tortures his testimony

about how and why he used degree-day data. It does so because it ignores the purpose of degree

days as well as the bulk of data and analysis that he used in conducting his retrospective and

prospective analyses.

As is clear from his report and as he explained extensively at hearing, Dr. McLaren

utilized the degree days concept as an analytical tool, as is customary in ecological

investigations, to show that the requested modified temperature limits for the month of May

would not result in any carryover of warmer temperatures into the later summer months. Tr. at

30-33, 37. Dr. McLaren gathered data and performed his degree day analysis for a specific

purpose, which was to determine whether there was any carryover of increased temperatures in

May to the later summer months. Degree-days was also used as a measure of the time-integrated

Electronic Filing - Received, Clerk's Office, September 28, 2009

thermal regime of the fish community during 1997-2004 to demonstrate no negative relationship

between the thermal regime and the populations parameters of growth, condition (relative

weight), and abundance of fish. The degree days concept was not used as exclusive support for

Ameren’s requested relief, or to justify a particular temperature. Instead, it provided one line of

evidence to answer a particular question regarding the possible effects in June, July, and August

of warmer May temperatures. The Agency’s suggestion that Dr. McLaren used degree days to

justify a new water quality standard, grossly mischaracterizes the expert’s work.

The Agency again quotes Dr. McLaren out of context on the topic of lethal endpoints for

the representative important species (“RIS”). The Agency cites to testimony acknowledging that

temperatures in certain parts of the Lake would exceed the reported lethal endpoints. Ag. Brief

at 4-5

;

citing

Tr. at 152-155. It uses that testimony to argue that such conditions are

per se

unacceptable for the Lake and the fish. Ag. Brief at 5. This argument simply ignores the work

of the many scientists that have studied the Lake. The Agency’s argument implies that Coffeen

Lake is isothermal at temperatures measuring above the lethal endpoints for the RIS and that

such conditions render the Lake incapable of supporting fish, shellfish, and wildlife. Such a

proposition is absurd (inasmuch as it would mean fish could not survive in Coffeen Lake, which

is plainly not true) and is exactly the opposite of the findings of the Southern Illinois University-

Carbondale (“SIUC”) studies and ASA reports. SIUC has noted “striking” water temperature

differences recorded between the surface and at depths in the mixing zone (Ameren Brief at 15-

; 2005 SIUC Report, pg. 4) which means that at times when the water approaches the thermal

The Agency’s post-hearing brief, filed September 14, 2009 will be cited to throughout

this brief as “Ag. Brief at __.”

Ameren’s post-hearing brief, filed August 28, 2009 will be cited to throughout this brief

as “Ameren Brief at __.”

Electronic Filing - Received, Clerk's Office, September 28, 2009

limits during May and October, temperatures in many areas of and depths in the Lake would be

in the 80s or lower – well within the range of temperatures tolerated by RIS life stages. Pet. Exh.

11, pg. 4-1. The ASA Report concluded that Coffeen Lake provides diverse temperature regimes

in various portions of the Lake that provide adequate habitat for the resident species at any given

time during the year.

Pet. Exh. 11, pg. 5-2. Indeed, this is likely the key finding of the SIUC

studies and the ASA report. The Agency completely ignores this point in its brief. The Agency

offered no expert testimony or other evidence to contradict these findings and conclusions. The

Agency’s selective parsing of testimony and report language attempts to turn the experts’

conclusions inside out, and this effort should be disregarded.

The standard is not whether the temperature at any point in the Lake would ever exceed

the UILTs for fish, but whether the Lake as a whole provides conditions capable of supporting

shellfish, fish and wildlife. As noted in uncontested testimony at hearing, Coffeen Lake supports

a balanced indigenous community and robust recreational fishery and is expected to continue to

do so even under the requested modification. Ameren Brief at 8-10. The record, consisting of

SIUC reports, the ASA report, and testimony at hearing, amply supports that at any given time

during the year, adequate suitable habitat is available in Coffeen Lake that can provide optimal

water temperatures or serve as a nursery for young fish or thermal refuge for adult fish. Ameren

Brief at 11. The fact that the RIS and less heat-tolerant species exist through natural

reproduction in Coffeen Lake demonstrates that they are adapted to the Lake’s thermal regime.

Federal water quality criteria guidance recognizes that fish adapt behaviorally to their

thermal regime, stating: “Juvenile and adult fish usually thermoregulate behaviorally by moving

to water having temperatures closest to their thermal preference. This provides a thermal

environment which approximates the optimal temperature for many physiological functions,

including growth (Neill and Magnuson. 1974).” Quality Criteria for Water 1986 (“The Gold

Book”), USEPA, EPA 440/5-86-001, May 1986.

Electronic Filing - Received, Clerk's Office, September 28, 2009

Next, the Agency quotes Dr. McLaren out of context in discussing the Agency’s

reference to IDNR comments in the 2007 Lake Management Status Report.

See

Pet. Exh. 12.

The IDNR report does not state, and the Agency has not introduced evidence to support the

conclusion, that the channel catfish population in Coffeen Lake does not meet IDNR objectives

due to Ameren’s thermal effluent. While Dr. McLaren appropriately responded that he had no

idea what the author of the report meant by stating a channel catfish population “continues in

anguish,” the Agency jumps to the conclusion in its post-hearing brief that not only channel

catfish but

all RIS

are “in anguish” because of the current

thermal regime

. Such assumptions are

simply not supported by the record. The reality is that Ameren is not proposing any

temperatures higher than those the Lake has already seen in other months of the year.

As Ameren has noted many times throughout this proceeding, there are many factors that

can contribute or result in the numbers in the IDNR report, but there is no evidence in the record

that states that the success of the RIS is in jeopardy due to Ameren’s thermal effluent. In its

rulemaking establishing thermal effluent standards for discharges to cooling lakes, the Board

found no evidence of harm to fish from thermal plumes from electric generating stations,

observing that “although some species in Sangchris have, at times, shown signs of poor condition

(

i.e.

, weight-to-length ratio), this fact is offset by population densities within those species.” In

the Matter of: Water Quality and Effluent Standards Amendments, Cooling Lakes (“Cooling

Lakes”), R75-2 slip op. at 20 (Sept. 29, 1975). The same is true for Coffeen Lake. The record

shows that the numbers in the 2007 Lake Management Status Report more likely reflect

competition with other species for food, angling pressure, an increasing predator base, or the

cyclical nature of a particular species rather than harm from the thermal plume from Coffeen

Station. Ameren Brief at 10-12.

Electronic Filing - Received, Clerk's Office, September 28, 2009

III.

AMEREN HAS MET ITS BURDEN OF PROOF FOR AN ARTIFICIAL

COOLING LAKE DEMONSTRATION

The Board’s water quality standards require the petitioner to show that the heated effluent

complies with the applicable water quality standards other than the temperature limits. 35 Ill.

Adm. Code 302.211(j)(2). The Agency asserts that as part of this review, the Board should

consider whether there is “any degradation of water quality” attributable to the power plant’s

thermal effluent. Ag. Brief at 5-6;

citing

Cooling Lakes, slip op. at 16. The Agency further

contends it has presented evidence showing that Coffeen Lake is out of compliance and that the

requested relief would exacerbate those conditions.

Ameren first notes that the Agency has presented no evidence in this proceeding.

Second, the evidence of record is consistent with the Cooling Lakes inquiry. In Cooling Lakes,

the Board concluded there was no degradation of water quality attributable to the thermal

effluent of the power station despite data showing that deeper portions of the Lake may not

comply with dissolved oxygen (“DO”) standards at times. The Board concluded in Cooling

Lakes, that the “chemical and physical parameters would appear to be more dependent on the

watershed providing the lake’s water, and on the age of the lake, than on any other factor.”

Cooling Lakes

, R75-2, slip op. at 17. Similarly, in this proceeding, Dr. Shortelle of MACTEC

Engineering and Consulting, Inc. (“MACTEC”) has opined that any increases in mercury

methylation or internal loading of phosphorus attributable to the proposed increase in thermal

limits for May and October are expected to be

de minimis

even under the most conservative

estimates. Ameren Brief at 19-22. The Lake’s impairment listings for mercury and phosphorus

are more dependent on the watershed providing the Lake’s water, and on the age of the Lake,

than on any other factor. The Agency simply ignores this testimony.

Electronic Filing - Received, Clerk's Office, September 28, 2009

The Agency also asserts that the proposed modification might result in violations of the

DO water quality standard. For support, the Agency cites to Dr. Shortelle’s conclusion that

increased temperatures in May and October may increase the number of anoxic days in Coffeen

Lake. There is no expert testimony, or any other testimony, to explain how or why increased

anoxic days would translate to violations of the DO water quality standards. Dr. Shortelle’s

report studied anoxic conditions at the lowest reaches of the Lake (

i.e.

the Lake bottom). The

DO standard applies to the water above the thermocline of thermally stratified lakes and

reservoirs. 35 Ill. Adm. Code 302.206(b). After an examination of the available data, Dr.

McLaren concluded that DO concentrations will likely remain sufficient to sustain the aquatic

community even under the proposed May and October limits. Ameren Brief at 18. Thus, the

uncontested testimony at hearing is that Coffeen Lake provides conditions capable of supporting

shellfish, fish and wildlife and will continue to do so under the requested relief.

The next water quality issue the Agency raises concerns discharges from the Lake to East

Fork Shoal Creek. It notes that any discharge from the Lake to the East Fork Shoal Creek must

meet the thermal standards in 35 Ill. Adm. Code 302.211(b)–(e). Ag. Brief at 7-8. As the

evidence in this proceeding shows, Ameren has had almost no opportunities to collect the data

one would need to make such a demonstration. The discharge from Coffeen Lake to the East

Fork Shoal Creek is so infrequent that the opportunity to collect such data has been exceedingly

rare over the years.

See

Petition at 8. The Board’s regulations make clear that such a

demonstration is

not

a prerequisite to the granting of the relief. Rather, the regulations specify

that the Board’s order granting relief is the appropriate manner in which to address the issue of

compliance of the Lake’s discharge with 302.211(b)-(e).

See

35 Ill. Adm. Code

106.200(a)(2)(C)(i) (“A Board order providing alternate thermal standards . . . will include . . .

Electronic Filing - Received, Clerk's Office, September 28, 2009

the following conditions: . . .(i) all discharges from the artificial cooling lake to other waters of

the State must comply with the applicable provisions of 35 Ill. Adm. Code 302.211(b) through

(e).”) Accordingly, Ameren would not object to a condition consistent with 35 Ill. Adm. Code

106.200(a)(2)(C)(i) as part of the relief granted by the Board.

Ameren will soon begin construction on a project that will positively impact water

quality in Coffeen Lake. As Ameren has previously noted, Ameren will install new flue gas

desulphurization (“FGD” or “scrubber”) systems on both generation units at Coffeen Station to

comply with applicable air emissions regulations. The first unit is scheduled for completion in

late 2009, and the second unit is to be completed in early 2010. Post-installation, additional

water is needed for plant operations and to operate the scrubbers. To avoid Lake drawdown and

any associated impacts to water quality in Coffeen Lake, Ameren sought and obtained

permission to construct a new gate structure in the East Fork Shoal Creek that will allow the

transfer of water to Coffeen Lake. The proposed project will consist of constructing a new gate

structure on East Fork Shoal Creek, expanding the existing pump station with increased pumping

capacity, dredging the existing intake channel, and constructing a new pipe to convey water from

the pump station to Coffeen Lake. The U.S. Army Corps of Engineers issued the Section 404

permit for this project on September 22, 2009 (Permit No. MVS-2007-159, P-2638) and the

Agency issued a Section 401 water quality certification on September 8, 2009 (Log No. C-0122-

07). The pump station project will have a positive impact on water quality for dissolved oxygen

and temperature. The impact is expected to be greater in May during times of greater seasonal

precipitation and water pumped from East Fork Shoal Creek is comprised primarily of well-

aerated storm water. The cooler, well-oxygenated water will be discharged at surface level into

the cooling loop where it will mix with warmer waters coming from the thermal plume.

Electronic Filing - Received, Clerk's Office, September 28, 2009

IV.

THE AGENCY’S ASSERTION OF ECONOMIC REASONABLENESS IS

NOT SUPPORTED BY THE RECORD AND IGNORES AMEREN’S

REQUEST FOR RELIEF

The Agency inaccurately asserts that two options explored by Ameren, the use of cooling

towers and continued de-rating, are economically reasonable. Ag. Brief at 8. If they were

economically reasonable options, Ameren would not have invested the significant time and costs

to initiate this proceeding. Nowhere in its recommendation or at hearing did the Agency present

evidence that a helper cooling tower or continued de-rating would be economically reasonable

solutions for Ameren to implement.

The Agency erroneously states that “Ameren’s definition of economic reasonableness in

this context is whether or not a thermal technology will allow Ameren to generate enough

additional power so as to see an actual profit on the investment in the supplemental cooling

capacity.” Ag. Brief at 8-9. This mischaracterizes or misconstrues the testimony of Mr. James

Williams. Mr. Williams’ testimony made clear that that they are not one and the same. Mr.

Williams testimony, quoted on pages 10 through 11 of the Agency’s brief, stated that an

economic reasonableness standard must factor in whether a project is economically viable for a

company – this analysis ultimately lets a company know whether the investments it makes will

allow it to cover its costs. He did not say, as the Agency asserts, that a project must lead to

increased profits. The Agency thus misconstrues the testimony by equating the idea that an

investment pays for itself to the idea that an investment makes a profit for the company.

Not only did the Agency mischaracterize Mr. Williams’ testimony, but it also

conveniently ignored another essential component of the economic reasonableness standard,

which requires consideration of benefit to the environment. The Company’s investment analysis

of both the helper cooling tower and continuing to de-rate also considered that the requested

relief will have no measurable negative impact to the environment. Because the projects were

Electronic Filing - Received, Clerk's Office, September 28, 2009

costly and did not provide commensurate benefit, the Company found that neither option would

be economically reasonable.

See

Ameren Brief at 27-29.

Ameren is well aware that the Board’s economic reasonableness standard in an artificial

cooling lake demonstration does not include a consideration of whether a petitioner will make a

profit. Ameren is also confident that by granting Ameren’s requested relief, the Board will not

be jeopardizing the basis of any regulatory decisions that require a consideration of economic

reasonableness. As explained at great length in this proceeding, the two alternatives the Agency

identifies are not economically reasonable. Ameren Brief at 24-29.

Ameren has devoted significant resources to reducing the effects of its thermal effluent.

In its post-hearing brief, the Agency erroneously attributes to Ameren the arguments made by

Central Illinois Public Service Company (CIPS) in the 1997 variance request regarding the cost

of installing cooling technologies at Coffeen Station. Central Illinois Public Service Co. v.

IEPA, PCB 97-131 (Jun. 5, 1997). Further, the Agency fails to mention that only after the

variance granted to

CIPS

was terminated in 1999 did

Ameren

construct and implement the 70-

acre cooling basin and 48-cell cooling tower system. The Agency would have the Board believe

that these efforts were done strictly to make a profit for the company. Contrary to the Agency’s

assertion, Ameren’s efforts illustrate that Ameren is cognizant of its thermal discharge limits and

has acted diligently to remain in compliance and to balance the goals of utilizing the cooling lake

for its intended purpose as well as enhancing its use as a recreational facility for the state of

Illinois.

The Agency’s conclusory statement that the installation of additional cooling systems and

de-rating are economically reasonable (Ag. Brief at 11) does not explain how the Agency arrives

Electronic Filing - Received, Clerk's Office, September 28, 2009

at that conclusion in light of the facts of record, which identify the losses Ameren would sustain

if it continues to de-rate or installs one of the evaluated cooling enhancement technologies.

Ameren believes that the additional proposed conditions to the request provide a sound

basis for moving forward. Ameren is proposing to include specifics of its best management

practices to be included in the requested relief. If the relief is granted, Ameren will also continue

extensive studies on Coffeen Lake to determine the thermal effects of the proposed limits on the

RIS of Coffen Lake.

AMEREN’S SHOWING PURSUANT TO THE BOARD’S REGULATIONS

IS PRECISELY THE DEMONSTRATION REQUIRED BY FEDERAL

LAW

In arguing that Ameren has failed to show that the requested relief is consistent with

federal law, the Agency has put the cart before the horse and raised a question that is not ripe for

consideration in this proceeding. Federal law specifically provides that the Administrator or

delegated authority, where appropriate, can set alternate thermal limits. 33 U.S.C. §1326(a)

(Section 316(a)). Illinois has created a procedure for setting alternate thermal limits specifically

for artificial cooling lakes. 35 Ill. Adm. Code 302.211(j). The Board’s approval of a modified

thermal standard serves as the requisite showing under Section 316(a) as that authority has been

delegated to the Board.

The Agency first argues that effluent limits must be treated as a water quality standard

change in order to be consistent with the Clean Water Act. Ag. Brief at 15;

citing

In the Matter

of: Site Specific Rule for City of Effingham Treatment Plant Fluoride Discharge, 35 Ill. Adm.

Code 304.233, R03-11 (Jul. 24, 2003). The Agency’s argument might hold true for parameters

other than heat, where constituents may continue to concentrate rather than dissipate over time

and distance. The argument might also hold true in cases where there is more than one

discharger on a single waterbody and one discharger’s effluent may affect another discharger’s

Electronic Filing - Received, Clerk's Office, September 28, 2009

ability to comply with water quality standards. The artificial cooling lake demonstration,

however, recognizes the unique characteristics of heat and the unique dynamic of the power

plant discharger to an artificial lake created and designed to cool the plant’s thermal effluent.

In the broader water quality standard context, both State and federal regulations

recognize the alternate thermal limit promulgation process as separate and apart from other water

quality standards when undergoing antidegradation review.

For example, the federal

antidegradation policy regulations state: “[i]n those cases where potential water quality

impairment associated with a thermal discharge is involved, the antidegradation policy and

implementing method shall be consistent with section 316 of the Act.” 40 C.F.R. 131.12(a)(4).

See also

35 Ill. Adm. Code Section 302.105(d)(4) (antidegradation assessment is not required for

thermal discharges that have been approved through a 316(a) demonstration). Moreover,

temperature is the only constituent for which USEPA recommends that states apply species-

dependent criteria in setting water quality standards.

The Agency argues that a Board-promulgated specific thermal limit is a change in water

quality standards requiring Section 303(c) review. 33 U.S.C. §1313 (Section 303(c)). The

Agency’s argument is backwards as it has the Agency arguing the thermal standard should not be

promulgated because Section 303(c) review is necessary. Section 303(c) review, if it applies,

occurs

after

the promulgation of new water quality standards. This entire argument, of course,

assumes that a modified thermal limit must undergo independent Section 303(c) review.

Whether or not that is required is still undetermined. The 1977 USEPA guidance document for

316(a) determinations states “[t]hose States which have been delegated the administration of the

NPDES permit program by EPA have the lead role for making 316(a) decisions within the State.

http://www.epa.gov/waterscience/criteria/wqctable/

(referencing The Gold Book).

Electronic Filing - Received, Clerk's Office, September 28, 2009

The EPA retains what amounts to a veto capability through the requirement that they continue to

review all permits before they are issued.”

Since a Section 302.211(j) thermal demonstration is

analogous to a Section 316(a) determination in that it considers site-specific conditions in setting

thermal effluent limits for individual power plants, this guidance supports the conclusion that

USEPA retains only veto authority over permit issuance once the Board-issued specific thermal

limit is incorporated into an NPDES permit.

In any case, whether Section 303(c) review is necessary will be addressed once the State

has taken action to promulgate a new water quality standard. The Board is the only state agency

with authority to adopt a modified thermal limit (or a water quality standard). Section 303(c)

review, therefore, is only relevant after the Board has created a new standard and a denial by the

Board based on such review would be premature. In this proceeding, Ameren’s demonstration

that the requested relief will assure the protection and propagation of a balanced, indigenous

population of shellfish, fish, and wildlife in and on Coffeen Lake is consistent with federal law.

VI.

CONCLUSION

As Ameren notes in its post-hearing brief, Ameren has met each element of the

requirements for a modified thermal limit as set out in the Board’s procedural rules. It has also

met its burden of proof as set forth in the requirements for an artificial cooling lake

demonstration and the Illinois Environmental Protection Act (415 ILCS 5/27(a) and 28.1).

In its post-hearing brief, the Agency mischaracterizes the burden of proof, pulls

statements out of context, and offers flawed legal analysis of the federal review process required

under the Clean Water Act. None of these arguments provide substantive reasons to deny

Interagency 316(a) Technical Guidance Manual and Guide for Thermal Effects Sections

of Nuclear Facilities Environmental Impact Statements (DRAFT), May 1, 1977, pp. 8-9

(available at: http://www.epa.gov/npdespub/pubs/owm0001.pdf).

Electronic Filing - Received, Clerk's Office, September 28, 2009

Ameren.s request for relief in the form of a modified thermal limit. The Agency still has made

no effort to rebut the evidence presented by Ameren.

WHEREFORE, Ameren respectfully requests that the Pollution Control Board grant the

requested modified thermal limit, as set forth

in the Petition and subject to the conditions

provided

in Ameren's post-hearing brief.

South Wacker Drive, Ste. 6600

Chicago, Illinois 60606

312-258-5500

Fax: 312-258-2600

aantoniolli@schiffhardin.

com

grodriguez@schiffhardin.

com

by:

Respectfully submitted,

AMEREN ENERGY GENERATING

COMPANY

One of Its Attorneys

-14-

Electronic Filing - Received, Clerk's Office, September 28, 2009