RECEWED

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOARD

rJA1\~

8

2004

IN THE MATTER OF:

)

OLWriQw

cONrROL

BOARO

PROPOSED SITE SPECIFIC REGULATION

)

R04-ll

APPLICABLE TO AMEREN ENERGY

)

(Site Specific

GE1~TERATINGCOMPANY, ELGIN,

ILLINOIS)

Rulemaking

-

Noise)

AMENDING 35

ILL. ADM.

CODE 901

NOTICE

PLEASE TAKE NOTICE that

I have today filed with the Office

of the Clerk of the Pollution Control Board a Motion to File

Instanter and the Amended Pre-Filed Testimony of Howard Chinn,

P.E.,

of the Office of the Illinois Attorney General,

copies of

which are hereby served upon you.

The Amended Pre—Filed

Testimony is

substantially the same as the Pre-Filed Testimony

filed on January 7 although it corrects typographical errors,

expands citations,

and discusses the closing of doors and

windows.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA MADIGAN,

Attorney General of the State

of Illinois

MATTHEW J.

DUNN,

Chief

Environmental Enforcement!

Asbestos Litigation Division

ROSEMARIE CAZEAU,

Chief

Environmental Bureau

Assistant Attorney General

BY:

~(~

5~

JOEL

J. STERNSTEIN

Assistant Attorney General

Environmental Bureau

188 W. Randolph Street,

20th Floor

Chicago,

IL

60601

(312)

814-6986

Dated: January

8,

2004

THIS FILING

IS SUBMITTED ON RECYLED PAPER

---

SERVICE LIST

Ms. Dorothy Gunn

Clerk of the Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph,

Suite 11-500

Chicago,

IL 60601

(312)

814-3620

Mr. John Knittle, Esq.

Hearing Officer

Illinois Pollution Control Board

1021 North Grand Avenue East

Springfield,

Illinois

62794

(217)

278-3111

Mr.

Scott Phillips,

ESq.

Illinois Environmental Protection Agency

Division of Legal Counsel

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

Illinois

62794-9276

(217)

782-5544

Office of Legal Services

Illinois Department of Natural Resources

One Natural Resources Way

Springfield,

IL 62702-1271

(217)

782-6302

Ms. Marili McFawn,

Esq.

Schiff, Hardin & Waite

6600 Sears Tower

Chicago,

Illinois 60606

(312)

258-5519

Realen Homes

Attn:

Al Erickson

1628 Colonial Parkway

Inverness,

Illinois 60047

Village of Bartlett

Attn: Bryan Mraz,

Attorney

228

S.

Main St.

Bartlett,

Illinois 60103

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEWED

IN

THE

MATTER

OF:

)

8

2004

PROPOSED

SITE

SPECIFIC

REGULATION

)

R04-ll

APPLICABLE TO AMEREN ENERGY

)

(Site

Specif~OW~ONTROL

BOARD

GENERATING COMPANY, ELGIN,

ILLINOIS)

Rulemaking

-

Noise)

AMENDING 35

ILL.

ADM.

CODE 901

MOTION TO

FILE INSTANTER

1.

On January

7,

2004,

the Office of the Attorney General

filed the Pre-Filed Testimony of Howard Chinn,

P.E.,

of the

Office of the Illinois Attorney General

(“Pre-Filed Testimony”)

with the Illinois Pollution Control Board

(“Board”)

2.

There were several typographical errors and incomplete

citations

in the Pre-Filed Testimony.

In addition,

the Pre-Filed

Testimony did not contain a discussion regarding the closing of

doors and windows

to block out noise.

3.

In order to correct those errors,

the Office of the

Attorney General submits

to the Board the Amended Pre-Filed

Testimony of Howard Ch±nn, P.E.,

of the Office of the Illinois

Attorney General

(“Amended Pre-Filed Testimony”)

4.

The Office of the Attorney General requests that the

Board allow the instanter filing of the Amended Pre-Filed

Testimony as

it comes only one day after the filing of the Pre-

Filed Testimony and corrects certain errors and omissions with

respect to the Pre-Filed Testimony.

---

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA MADIGAN,

Attorney General of the State

of Illinois

MATTHEW J. DUNN,

Chief

Environmental Enforcement

/

Asbestos Litigation Division

ROSEMARIE CAZEAU,

Chief

Environmental Bureau

Assistant Attorney General

~t—-~

~

//

BY:

~

\~j-.(h?~~

JOE~1. STERNST-E~

Assistant Attorney General

Environmental Bureau

188 W. Randolph Street,

20th Floor

Chicago,

IL

60601

(312)

814-6986

---

BEFORE THE ILLINOIS POLLUTION

CONTROL

BOAR~ECE~VED

IN THE MATTER OF:

)

rJAN

8

2004

PROPOSED SITE SPECIFIC REGULATION

)

R04-ll

APPLICABLE TO AMEREN ENERGY

)

(Site

GENERATING COMPANY,

ELGIN,

ILLINOIS)

Rulemaking

-

Noise)

AMENDING 35

ILL. ADM.

CODE 901

PRE-FILED TESTIMONY

OF HOWARD

CHINN,

P.E.,

OFFICE OF THE

ILLINOIS ATTORNEY GENERAL,

OPPOSING

THE PROPOSED

SITE

SPECIFIC REGULATION APPLICABLE

TO

AMEREN ENERGY GENERATING

COMPANY,

ELGIN,

ILLINOIS

ANENDING

35

ILL. ADM.

CODE

901

Howard

Chinn,

P.E.,

of

the

Office

of

the

Illinois~

Attorney

General

submits the following comments in opposition to Ameren

Energy

Generating

Company’s

request

for

a

site-specific

rulemaking

for

its

peaker

power

plant

facility

in

Elgin

Illinois:

1.

My name is Howard Chinn.

I am a professional engineer

and t.iav~been employed by the Office of the Illinois Attorney

General

for

approximately

30

years.

During

that

time,

I

have

developed an extensive expertise with noise pollution,

including

the Illinois Pollution Control Board’s

(“Board”)

noise

regulations and the proposed amendments to those regulations.

2.

Ameren Energy Generating Company’s

(“Ameren”) proposed

site epecific regulation

(“proposal”)

for its E1g±n, Illinois

peaker plant facility (“facility”)

is premature and is a

preemptive act to disenfranchise the future residents

of the

Village of Bartlett who will live near the facility.

Those

future residents may be adversely impacted by noise emissions

1

---

from the Ameren facility.

Ameren’s proposal may deprive those

future residents of their rights in any future hearings on noise

emissions from the facility.

3.

Ameren’s proposal is contrary to the legislative intent

of Section 23 of the Illinois Environmental Protection Act1

(“Act”)

which provides that:

The General Assembly finds that excessive

noise endangers physical and emotional health

and well being,

interferes with legitimate

business and recreational activities,

increases construction costs, depresses

property values,

offends the senses,

creates

public nuisances,

and in other respects

reduces the quality of our environment.

It

is the purpose of this Title to prevent

noise which creates a public nuisance.

4.

Ameren is also subject to and is required to comply

with the prohibition against nuisance noise at Section 24 of the

Act2 which provides that:

No person shall emit beyond the boundaries of

his property any noise that unreasonably

interferes with the enjoyment of life or with

any lawful business activity,

so as to

violate any regulation or standard adopted by

the Board under this Act.

In addition,

the Board’s noise pollution regulations state that

no person shall cause or allow the emission of sound beyond the

boundaries of his property “so as to cause noise pollution in

415 ILCS 5/23

(2b02)

2

415

ILCS 5/24

(2002)

2

---

Illinois

.

.

.“

Noise

pollution

is

defined

as

“the

emission

of

sound that unreasonably interferes with the enjoyment of life or

with any lawful business or activity.”3

5.

Even if,

for the sake of argument,

the Board approves

Ameren’s proposal to change the numeric noise emission standards

applicable to its facility, Ameren would still be required to

comply

with

the

nuisance

noise

prohibitions

in

the

Act

and

the

Board’s

regulations

by

prohibiting

noise

that

unreasonably

interferes

with

the

enjoyment

of

life.

6.

The numeric noise emission standards that Ameren seeks

to change are standards that the Board has adopted pursuant to

Section 25 of the Act4 which states

in relevant part:

The Board shall, by regulations under this

Section, categorize the types and sources of

noise emissions that unreasonably interfere

with the enjoyment of life,

or with any

lawful business,

or activity, and shall

prescribe for each such category the maximum

permissible limits on such emissions.

7.

The federal Noise Control Act of 1972 regulates motors

and engines5.

Ameren’s petition indicated that its facility

consists of

four simple cycle combustion turbines.

This

equipment

is

identified

in

the

Noise

Control

Act

as

a

major

~ 35 Ill Adm.

Code 900.102; 35

Ill. Adm.

Code 900.101

~4l5 ILCS 5/25

(2002)

~ 42 USC 4901

et seq;

Amended by P.L. 107-377 on December

31,

2002.

3

---

source of noise; thus federal noise emission standards are

feasible

for

such

equipment

and

may

be

developed

in

the

future.

8.

According to Ameren’s proposal, there are already

residences in the area adjacent to Ameren’s facility that has

recently

been

reclassified

as

Class

A

land

use.5

Therefore,

Ameren

should

have

no

expectation

that

any

vacant

undeveloped

land in that area would remain non-residential forever unless

Ameren

acquired

the

land

or

parts

thereof

for

a

buffer

zone.

According to testimony provided by Mr. Greg Zak at the Board

hearings on peaker plants, maintaining a buffer zone is one of

four strategies

to control noise from peaker plants7.

9.

In its proposal, Ameren claims that it will continue to

operate the facility as designed to provide the maximum noise

control that is economically reasonable and technically

feasible.8

However, Ameren has not provided any credible

engineering design data or cost estimates to substantiate the

validity of this claim.

6

Ameren proposal, page 1-2;

based

on

information

provided

by Ameren in the petition, the Village of Bartlett re-zoned the

Realen property as residential in June 2003.

Therefore,

the

property has been Class A for purposes of the Board’s noise

regulations since June 2003.

~ See In

re: Natural

Gas-Fired,

Peak-Load Electrical

Power

Generating

Facilities

(Peaker

Plants),

Companion

Report

to

Informational

Order,

ROl-lO

(Dec.

21,

2000)

at

38-39,

43-44,

Tr.

1 at 133-134,

IEPA Group Exh.

1,

Zak at

4.

8Ameren proposal, page 4.

4

---

10.

Ameren also claims that the exhaust silencing system

installed

when

the

facility

was

built

was

state

of

the

art

and

that it affords maximum noise control.9

This assertion is

unsupported.

Ameren did not submit copies of any product

manufacturer’s

labeling

to

support

its

claim.

11.

During the Board peaker plant hearings, Greg Zak

testified that:

First, properly designed and installed

combustion air intake silencers reduce intake

noise by approximately 99.999 to 99.99999

in

the average peaker plant.

Second,

a

hardened acoustic enclosure completely

containing the gas turbine similarly controls

noise radiated from the turbine’s outer

shell.

Third,

properly designed and

installed combustion gas exhaust silencers

reduce e3chaust noise by approximately 99.9999

12.

Ameren has not presented any evidence in their petition

to demonstrate that the noise control measures implemented at

their peaker plant facility were able to achieve the reductions

of

99+.

Ameren

could

not

even

quantify

the

reductions

in

noise

emissions.

13.

Ameren also discussed several conceptual technical

alternatives under the heading “Technical Infeasibility and

Economic Unreasonableness of Further Reducing Low Frequency Noise

9Ameren

proposal,

page

9,

final

paragraph.

‘°

See Peaker Plant Companion Report, ROl-lO

(Dec.

21,

2000)

at 43-44,

Tr.

1 at 132-134,

IEPA Group Exh.

1,

Zak at

4.

5

---

at the Turbine’s Exhaust”.”

The cost estimates provided therein

are without any verifiable back-up data to confirm the validity

or authenticity

of the numbers.

Ameren provided no engineering

design

data

or

technical

specifications

of

any

kind

for

any

of

the technical alternatives discussed,

opinions expressed,

or

conclusions reached in that section of its proposal.

The

discussions on the Experimental Active Noise Control are

unspecific and do not seem to apply to Ameren’s facility.’2

14.

Ameren should immediately proceed with the detailed

noise study that they mention in the proposal.’3

This noise

study

is

a

prerequisite

to

an

engineering

feasibility

evaluation

and economic analysis of alternative control technologies.

15.

Ameren’s proposal indicated that many of the area’s

ambient

noise

sources

contribute

mid

and

high-frequency

noise,

such as airplane flyovers,

trains,

car and truck traffic.

Ameren

claimed that people usually react by physically “closing out” the

noise sources.’4

However, Ameren did not provide any citations

for this opinion.

There is a discernable difference between the

noise from Ameren’s facility, which is continuous

in character,

as opposed to the transient noise emitted by airplanes,

trains,

~ Ameren proposal, page 10.

12

Id.

13

Ameren proposal, page 11, paragraph

2 (a)

14

Ameren proposal, page 11, paragraph

2 (b)

6

---

and automobiles.

16.

Ameren also asserts that noise from the facility has

little or no impact on residences because the facility generally

operates either during hot or cold weather.

During hot and cold

weather, Ameren claims that most people close their windows and

doors

in order to operate air conditioning or heating units’5.

Again, Ameren provides no facts,

references,

or citations in

support of its assumption.

The Board has found that

if people

have to close their windows and shut their doors to escape noise,

it constitutes and unreasonable interference with the enjoyment

of

life

and

creates

a

nuisance

in

violation

of

Section

24

of

the

Act

16

17.

Ameren’s $1.2 million estimate to provide an enclosure

for the facility to control mid-frequency noise is

unsubstantiated.’7

Ameren provided no cost breakdown or an

engineering basis for the costs associated with such an

enclosure.

Ameren’s other cost estimates for controlling mid and

high frequency noise are also unsubstantiated.’8

18.

On December 3,

2003, Ameren filed several documents

15

Id.

16

See,

e.g.,

Young v. Gilster-Mary Lee Corp.,

PCB 00-90

(Sept.

6,

2001)

‘7Ameren proposal, page 11-12.

18

Id.

7

---

si~pport±ngits proposal with the Board including a copy of the

Acoustical Evaluation and Ambient Sound Survey

(dated November

30,

2000)

(“Survey”)

and a copy of Analysis and Results of

Acoustical Measurements Taken Near the Ameren Elgin,

Illinois

Power Facility

(dated June 20,

2003)

(“Measurements”)

19.

The Survey is a pre-construction report which

indicates that:

significant but achievable sound

treatments would be necessary to achieve the

acoustical requirements of the facility.

Illinois noise regulations were found to be

achievable with four unit operation.”9

The Survey conclusion indicated that:

It

is unlikely that simple noise abatement

“fixes” such as barrier walls would

completely solve the problem.

It

is probable

that a building would be required over the

gas turbines,

generators, and inlet ducting

to approach the Illinois Daytime Noise

Regulations and mitigate the mid frequency

issues

20

Based on my past experience with another electric generating

facility

(even though of a different design),

I believe that

Ameren should undertake an engineering feasibility study,

including a cost estimate,

to fully evaluate the concept

of a

building around the facility that would mitigate noise emissions.

20.

Ameren contends that other peaker power plants should

19

Survey, page 4.

20

Survey, page 18.

8

---

not be compared to their facility unless the other plants are

equipped with identical manufacturer’s equipment.2’

This

is

absurd and technically illogical.

Ameren presented no

information on their equipment selection process

to indicate that

they

considered

and/or

evaluated

other

peaker

plants

on

the

market

that

had

a

lower

noise

emission

rating.

21.

During the Board’s peaker plant hearings,

Illinois EPA

indicated that as of November

6,

2000,

there were 67 air permits

for existing and proposed power plants using simple or combined

cycle turbines in Illinois.22

At that point,

none of the owners

of those facilities had submitted a petition for relief from the

Illinois

noise

regulations.

To

date,

it

appears

that

no

other

peaker power plants have submitted such petitions.

Ameren has

presented no convincing or compelling information to demonstrate

that

there

are

extenuating

circumstances

that

would

warrant

a

site

specific

regulation

for

its

Elgin

facility.

22.

The County of Du Page retained Versar,

an environmental

consultant,

to

review

environmental

issues

related

to

peaker

plants.

During

the

peaker

plant

hearings

before

the

Board,

Versar indicated that peaker plant noise may be a concern.

Versar provided information at the hearing on six proposed peaker

2!

Ameren proposal,

page 15.

22

See In re: Natural Gas-Fired,

Peak-Load Electrical Power

Generating

Facilities

(Peaker

Plants),

Informational

Order,

ROl-

10

(Dec.

21,

2000)

at

5.

9

---

plants,

five

in

Illinois

and

one

in

Maryland,

from

four

different

developers.

The five proposed peaker plants

in Illinois were

expected to meet Illinois’ noise regulations23.

23.

Ameren’s contention that peaker power plants are not

regulated on a federal level

is inaccurate.24

The federal Noise

Control Act of

1972,

as amended, references the type of equipment

employed in a peaker power plant.

24.

Ameren’s contention that Illinois

is probably the most

active state in the union in terms of noise regulation is also

inaccurate.25

The Illinois Environmental Protection Agency no

longer has

a noise control program.

25.

Ameren also indicated that,

like other Midwest

states,

noise from peaker power plants is not specifically regulated

in

Illinois.26

This

is misleading and a contradiction of Ameren’s

previous position that

it is regulated by the noise provisions

in

the Act and the Board’s regulations.

26.

Ameren stated that they conducted two field sound

measurement projects to correctly assess the potential

environmental impact of the sound pressure level

àn the Realen

23

See Peaker Plant Companion Report,

ROl-lO

(Dec.

21,

2000)

at 39-41.

24

Ameren proposal, page

16.

25

Id.

26

Id.

10

---

property.

Ameren indicated that the weather conditions were

nearly perfect for measuring sound; there were moderate

temperatures

and

humidity,

and

no

wind.27

Atmospheric

conditions

significantly influence sound propagation, especially wind

direction and speed.

A discernible difference in sound level is

noted when measurements are taken downwind and then taken upwind

from the same noise source.

Noise may be amplified by low cloud

cover.

A complete discussion of this subject

is beyond the scope

of

my

comments.

Nevertheless,

I

do

not

believe

that

the

two

measurement

surveys

in

the

Ameren

proposal

are

representative

of

sound pressure levels under varying atmospheric conditions.

27.

The two measurements indicated that the octave bands

exceeding the Board’s noise emission standards are

1 kHz and 2

kHz.

There

is no reasonable or rational basis to justify a site

specific rulemaking for the other octave bands.

The extrapolated

values should not be used in lieu of actual measurement data for

purpose of assessing the potential exceedence of noise emission

limits

28

28.

Ameren correctly indicated,

and I concur,

that the two

sets

of

sound

pressure

level

data

cannot

be

considered

a

complete

statistical

representation

of

sound

from

the

facility.

However,

Ameren is incorrect

in their claim that conducting more actual

27

Ameren proposal, pages 17-18.

28

See Ameren proposal, page 23.

11

---

measurements while the facility fully operational

is not

feasible.29

The variables are not,

as Ameren claims,

“far too

numerous” to run a sufficient number of tests

to create an

adequate data base for decision making purposes.3°

I recommended

that

Ameren

take

at

least

three

additional

sets

of

noise

measurements following the upcoming adoption of the amendments to

the Board noise regulations.3’

Ameren should take those

measurements when all four units at the facility are fully

operational and when those units are in a start-up mode.

Each of

the sound measurements should be taken under similar atmospheric

conditions but at different receptor locations.

The measurements

should be taken when the ambient noise level

is at its lowest.

The atmospheric conditions should be fully documented and include

both cloud cover and precipitation.

The measurements should be

compiled in a report and should include a scaled map identifying

all

physical

features

and

topography.

The

“Detailed

Noise

Study”

that Ameren described in the proposal should be conducted at the

same time

if practicable.32

29.

During the Board hearings held pursuant to docket ROl-

29

Id

30

Id.

3!

See Board docket R03-9,

In re: Proposed New and Updated

Rules for Measurement and Numerical Sound Emissions Standards

Amendments to 35

Ill.

Adm.

Code 901 and 910.

32

Ameren proposal,

page 11, paragraph 2(a).

12

---

10,

Mr. Erjavec of Indeck indicated that Indeck’s peaker plants

were designed to meet the Board’s nighttime numeric noise

standards

at all times because those plants may be called upon to

operate at any time and because sound attenuation cannot be

increased at night.33

He also added that Indeck’s peaker plants

are meeting Illinois noise standards via buffer zones or designed

noise

silencing

measures.34

30.

Indeck’s consultant indicated in the public hearing for

docket ROl-lO that:

While

it

is true that low frequency noise

is

more difficult to mitigate than high

frequency noise,

that doesn’t mean that it

can’t be controlled at

all.

For example,

a

reasonably substantial building envelope can

contain much of the equipment noise inside

the building, and barriers can provide a

noise reduction of at least five

(dB).at any

frequency,

provided they block the line of

sight between the noise source and receiver

35

Thus, Ameren should be able to contain its noise emissions at all

levels with a building that blocks the line of sight between the

facility

and

the

proposed

residences

that

will

be

built

nearby.

31.

For all of the reasons cited above,

in recognition of

~ See Peaker Plant Companion Report, ROl-lO

(Dec.

21,

2000)

at 43-44,

Tr.l at 240-241.

~ See Peaker Plant Companion Report, ROl-lO

(Dec.

21,

2000)

at 44,

Tr.l at 242,

Indeck Exh.

1,

2.

~ See Peaker Plant Companion Report,

ROl-lO

(Dec.

21,

2000)

at 46,

Indeck Exh.2,

ERM Report

at 38.

13

---

the record developed by the Board in docket ROl-lO,

and in the

interest of fulfilling the purpose of Title VI of the Act to

prevent

noise

which

creates

a

public

nuisance,

the

Office

of

the

Attorney General respectfully requests that Ameren’s proposal be

denied.

14

---

Respectfully

submitted,

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA

MADIGAN,

Attorney General of the State

of Illinois

MATTHEW

J.

DUNN,

Chief

Environmental Enforcement!

Asbestos Litigation Division

ROSEMARIE

CAZEAU,

Chief

Environmental Bureau

Assistant

Attorney

General

BY:

~

~

JOEL

J.

STERNSTEIN

Assistant Attorney General

Environmental Bureau

188 W. Randolph Street,

20th Floor

Chicago,

IL

60601

(312)

814-6986

15

---

CERTIFICATE

OF SERVICE

I,

JOEL

J.

STERNSTEIN,

an

Assistant

Attorney

General,

certify

that

on

the

8~’~

day

of

January

2004,

I

caused

to

be

served by First Class Mail the foregoing to the parties named on

the

attached

service

list,

by

depositing

same

in

postage

prepaid

envelopes with the United States Postal Service located at 100

West Randolph Street,

Chicago, Illinois 60601.

~Ji~~O~V

JOEL J. STERNSTEIN