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ILLINOIS POLLUTION CONTROL BOARD

November 6, 2003

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Proposed Rule. First Notice.

OPINION AND ORDER OF THE BOARD (by T.E. Johnson):

On October 28, 2003, Ameren Energy Generating Company (Ameren) filed a rulemaking proposal under Section 28 of the Environmental Protection Act (Act) (415 ILCS 5/28 (2002)), to change regulations governing noise emission limitations found in the Board’s rules at 35 Ill. Adm. Code 901. Ameren filed a motion for expedited consideration concurrently with the proposal. To date, no response to the motion has been filed. In the petition, Ameren seeks site-specific noise emission limitations with respect to the operation of Ameren’s electric generating facility in Elgin, Cook County.

By today’s action the Board adopts the proposed amendments for the purpose of first notice under the Illinois Administrative Procedure Act (APA) (5 ILCS 100/1-1) without commenting on the merits of the proposal, and grants the motion for expedited consideration. The proposal will be published in the Illinois Register whereupon a 45-day public comment period will begin during which interested persons may file additional public comments with the Board.

BACKGROUND

Ameren owns a power generating facility in Elgin (facility) consisting of four simple cycle combustion turbines capable of generating up to 540 MW of electricity. Pet. at 1. The facility is located at 1559 Gifford Road, Elgin, Cook County. Id. The facility is described as a peaking facility due to its intended design to start up rapidly to generate power when critically needed. The facility became fully operational in November, 2002. Id.

Ameren asserts that the Board’s noise regulations are not currently applicable because the land uses in the immediate area are primarily Class C – industrial, agricultural, mining and excavation. Pet. at 1. Ameren asserts that the facility is in compliance with the current applicable noise regulations at 35 Ill. Adm. Code Part 901. Id.

The land immediately to the west of the facility is vacant, and until very recently was located within unicorporated Cook County and zoned Industrial. Pet. at 2. On June 3, 2003, the Village of Bartlett annexed and rezoned this land for residential use at the request of Realen Homes, a residential development corporation (Realen Homes). Id. Ameren has concluded that the facility will not be able to meet the Class A noise limitation at 35 Ill. Adm. Code 901.102, that heretofore were not applicable. Id. Accordingly, Ameren is seeking a site-specific rule that establishes noise emission limitations for the facility that are applicable to Class A and B receiving lands. Id.

MOTION FOR EXPEDITED CONSIDERATION

In its motion, Ameren re-asserts the facts asserted in the petition, and contends that Realen Homes intends to construct and sell single-family homes and town homes on the property immediately to the west of the facility. Mot. at 1. Ameren argues that due to the proposed change in land use, the property will become a Class A receiving land and that Ameren may not be able to consistently comply with the noise limits under certain operating conditions. Id.

Ameren asserts that it needs the proposed site specific noise limitations adopted as soon as possible to insure compliance with state law in the event the now vacant land is converted, as intended by Realen Homes, to residential use. Mot. at 2. Ameren requests that the Board proceed to first notice by adopting the language proposed in the petition only for the purposes of first notice. Id. Ameren notes that Ameren filed an electronic version of the petition, including the proposed language. Id. Ameren requests that the requisite public hearing be scheduled as soon as possible. Although not contained within the motion, Ameren also asks that the Board waive the signature requirement applicable to the site-specific rulemaking process. Pet. at 27.

DISCUSSION

The Board finds that the petition meets the content requirements of 35 Ill. Adm. Code 102.208 and 102.210 and is accepted for hearing. As previously stated, no response to the motion for expedited review has been filed. Generally, the Board will not rule on any motion before the expiration of the 14-day response period except in deadline driven proceedings. However, in cases that would result in undue delay or material prejudice, the Board has the discretion to address a motion prior to the response time lapsing. 35 Ill. Adm. Code 101.500(d). A review of the record indicates that undue delay and material prejudice would result if the motion were not addressed at this time. Accordingly, the Board will rule on the motion for expedited review.

Requests for expedited review are governed by Section 101.512 of the Board’s rules, and must contain, inter alia, a complete statement of the facts and reasons for the request. See 35 Ill. Adm. Code 101.512. In acting on a motion for expedited review, the Board must consider all statutory requirements and whether or not material prejudice will result from the motion being granted or denied. 35 Ill. Adm. Code 101.512(b).

The Board grants the motion for expedited review. Material prejudice would result were the motion denied. The proposed rulemaking will be sent to first notice without a decision being reached on the merits of the proposal. In addition, the Board directs the hearing officer to expeditiously schedule a hearing in this matter. Details concerning the date, time and place of the hearing will be provided in a notice of hearing when finalized. The Board also grants the request to waive the signature requirement applicable to site specific rulemakings.

CONCLUSION

The Board today adopts the following first-notice order under the APA (5 ILCS 100/5-5 et seq. (2002)) without commenting on the merits of the proposal. The proposal will be published in the Illinois Register whereupon a 45-day comment period will begin. The Board asks that parties interested in commenting on this proposal address any written comments to John C. Knittle, the hearing officer assigned to this matter.

Copies of this opinion, the proposed rules, and any hearing officer order may be viewed and downloaded from the Board's Web site at http://www.ipcb.state.il.us/ . Copies may also be requested in writing from the Clerk of the Illinois Pollution Control Board, James R. Thompson Center, 100 West Randolph, Suite 11-500, Chicago, Illinois 60601 or via telephone at 312.814.3461.

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ORDER

The Board directs the Clerk to cause the filing of the following with the Secretary of State for first-notice publication in the Illinois Register.

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TITLE 35: ENVIRONMENTAL PROTECTION

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SUBTITLE H: NOISE

CHAPTER I: POLLUTION CONTROL BOARD

PART 901

SOUND EMISSION STANDARDS AND LIMITATIONS FOR PROPERTY LINE-NOISE-SOURCES

Section

AUTHORITY: Implementing Section 25 and authorized by Section 27 of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2 pars. 1025 and 1027).

SOURCE: Originally filed as Part 2 of Chapter 8: Noise Pollution, effective August 10, 1973; amended at 2 Ill. Reg. 27, p. 223, effective June 26, 1978; amended at 5 Ill. Reg. 6371, effective June 1, 1981; amended at 5 Ill. Reg. 8533, effective August 10, 1981; amended at 6 Ill. Reg. 10960, effective September 1, 1982; codified at 7 Ill. Reg. 13646; amended at 7 Ill. Reg. 14519, effective October 17, 1983; amended in R83-35 at 8 Ill. Reg. 18893, effective September 25, 1984; amended in R83-33, 26, 29, 30 and R83-34 at 9 Ill. Reg. 1405, effective January 17, 1985; Section 901.105(f)(1), (2) and (3) recodified to Sections 901.110, 901.111 and 901.112 at 9 Ill. Reg. 7147; amended in R83-25, 31 and 32 at 9 Ill. Reg. 7149, effective May 7, 1985; amended in R83-7 at 11 Ill. Reg. 3136, effective January 28, 1987; amended in R04-11, at_______Ill. Reg____,effective_______.

Section 901.122 Ameren Elgin Facility Site-Specific Noise Emission Limitations

The Combustion Turbine Power Generation Facility located at 1559 Gifford Road in Elgin, Illinois shall not cause or allow the emission of sound from any property-line-noise source located on that property which exceeds any allowable octave band sound pressure level specified in the following table, when measured at any point within the receiving Class A or Class B land.

(Source: Amended at      , effective      )

IT IS SO ORDERED.

Board Member M.E. Tristano abstained.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board adopted the above opinion and order on November 6, 2003, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

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