RECEIVED
Ci~Fll’S OFFICE
BEFORE THE ILLINOIS POLLUTION ‘CONTROL BOARD
MAY 192004
I1~
THE
MATTER
OF:
)
‘STATE
OFIWNOIS
PoUu~o,,
Control Board
PROPOSED SITE SPECIFIC REGULATION
),,
R04-ll
APPLICABLE ‘TO AMEREN ENERGY
)
(Site Specific
GENERATING COMPANY, ELGIN,
ILLINOIS)
‘
Rulemaking
-
,Noise)
AMENDING 35
ILL. ADM.
CODE 901
NOTICE
‘
‘
PLEASE TAKE NOTICE that
I have today filed with the Office
off the Clerk
of
the Pollution Control Board a Motion to File
Instanter and the Comments of Howard Chinn,
P..E.,
of the Office
off the Illinois Attorney General,
in response to Petitioner’s
Post Hearing Comments.
Respectfully submitted,
‘PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the State
of Illinois
MATTHEW J.
DUNN,
Chief
EnvironmentalEnforcement/
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
‘
Dated: May 19, 2004
THIS FILING IS SUBMITTED ON RECYCLED 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 Servides
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
IN THE
MATTER
OF:
)
.
MAY
.192004
PROPOSED SITE SPECIFIC REGULATION
)
R04-ll
fATE OF
ILLINOIS
APPLICABLE TO ANEREN ENERGY
)
(Site specitf~
uton
Control Board
GENERATING COMPANY, ELGIN,
ILLINOIS)
‘Rulemaking
-
Noise)
AMENDING 35
ILL. ADM. CODE.901
MOTION
TO
FILE INSTANTER
1.
Pursuant to the Order of Hearing officer John Knittle,
on March 10,
2004 Petitioner Ameren Energy Generating Company
(“Ameren”)
and the Office of the Attorney General
(“AGO”) each
submitted Post-Hearing comments
in this matter’.
2.
On March 22,
2004 Ameren filed a Motion for Leave to
File Response,
a Response to the AGO’S Public Comment, and a
Motion to Supplement Record
(collectively “March 22 Pleadings”).
3.
On April
2,
2004,
the AGO filed a filed a Motion to
Deny the Motion for Leave to File,
a Motion to Deny the Motion to
Supplement the Record, and a Motion to Strike the Response and
the documents intended to supplement ‘the record
(collectively
“April
2 Pleadings”)
.
Ameren responded to the April
2
pleadings,
and the AGO filed a Reply.
4.
On May 6,
2004,
the Board granted and/or accepted into
the ‘record Ameren’s March 22 pleadings
(“May
6 Decision”).
The
Board denied the AGO’s April
2 pleadings but granted the AGO
leave to respond to Ameren’s post-hearing comments.
5.
,
However,
in the May
6 Decision,’ the Board only provided
the AGO until May 14,2004
to, file a response and held ,that the
1
mailbox
rule
would
not
apply.
,
.
6.
The
AGO
did
not
find
out
that
the
BOard
had
issued
its
May 6 Decision until May
7,
2004 but at’ that point the AGO did
not
know
what
the
Board
had
decided.
The
AGO
first
noticed
a
snmmary
of
the
Board’s
May
6
Decision
on
the
Board’s
web
site
on
May 11,
2004.
The AGO was not able to download a copy of the May
6 Decision until May 13,
2004 which is the same day that’the AGO
received
a
hard
copy
of
the
May
6
Decision.
.
7.
It
took
six
days
before
the
AGO
was
able
to
see
the
Board
decision
in
full,
but
the
Board
only
provided
the
AGO
eight
days to respond to Ameren’s post-hearing comments.
The AGO
intends to file a complete and thoughtful response to Ameren’s
post-hearing comments, but it could nOt devot,e the time necessary
to. such a response in only two
days..
‘
,
8.
Therefore,
the AGO requests that it be allOwed to file
i~scomments in response to Ameren’s post-hearing comments
instanter.
.
,,
,
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:
‘\~C~’
JOEL J. STERNSTEIN
.
Assistant Attorney General
Environmental Bureau
188
W. Randolph Street, 20th Floor
Chicago,
IL.
60601
(312) .814-6986
.
‘
.
.
3
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY 19 2004
IN THE MATTER OF:
.
.
).
STATE OF ILLINOIS
PROPOSED SITE SPECIFIC REGULATION
)
R04-ll
Pollution
Control
Board
APPLICABLE TO AMEREN ENERGY
)
(Site Specific
GENERATING COMPANY, ELGIN,
ILLINOIS)
Rulemaking’- Noise)
AMENDING 35
ILL. ADM.
CODE 901
)
.
COMMENTS OF HOWARD CHINN,
P.E.,
OFFICE OF THE
.
ILLINOIS ATTORNEY
I
IN RESPONSE
TO POST-HEARING
COMMENTS
OF PETITIONER
AMEREN ENERGY GENERATING COMPANY,
ELGIN,
ILLINOIS
Howard Chinn,
P.E.,
o,f the Office ‘of the Illinois Attorney
General
(“AGO”)
submits the following comments in response to
Ameren Ener’gy Generating Company’s
(“Ameren”) Post-Hearing
Comments
(including the post-hearing public comments submitted on
March
10,
2004 and the pleadings submitted on
March 22,
2004)
regarding the site
specific rulemaking for Ameren’s peaker power
plant facility in Elgin,
Illinois
(“facility”)
piirsuant
to, the
Pollution Control Board order of May
6,
2004:
1.
Ameren’s comment that
I did not take into account any
of the pre-filed testimony and other ‘documents that composed the
entire record in,this proceeding is not true and was made without
any factual or credible basis.
Se’e March 22 Petitioner’s
Response
(“March 22 ,Response”)
at
1.
‘
2.
The AGO objects to the Motion to Clarify Answer
(“Motion to’ Clarify”)
submitted with Ameren’s March 10 post-
hearing comments
(“March lO.Comments”)
.
Ameren is seeking to
introduce new non-sworn testimony into the record.
The Motion to
1
Clarify should therefore be denied.
If the Board grants the.
Motion to Clarify, the AGO claims that Mr. Smith’s testimony
therein should be disregarded as non-responsive to the Board’s
questiOns.
.
3.
Ameren indicated that its facility is
on,ly permitted to
operate 16
of the time annually.
March 10 Comments
at.’ 3.
AlthOugh this does’ not~seem onerous
if Ameren runs, its,peaker
facility constantly throughout the year, peaker facilities
generally’ are only in use during the summer months when air
conditioning, use spikes electric demand.
Given the maximum’
amount of time allowed by .its.permit,
Ameren could run its
facility
48
of the time
if
it
only operated during June,
July
and August
-
almost 12 hours, a day.”
Noise at levels beyon,d the
‘
Class A receiving land limits for 12” hours
a day could prove to
be an extreme nuisance to the residents of the Realen Homes
property.
.
‘
.
‘
.
4.
Ameren’s total costs for itscurrent noise abatement
measures of $11.65 million were only 5.of
the
total capital cost
of the facility.
.March 10 ‘Comments at
6.
This would
in~tplya
total capital cost of approximately $233 million.
Considering
that Améren ‘sunk $233 million into its. facility,
it
is difficult
to believe Ameren’s claim that each $100,000 noise test
‘at the
facility (representing less than 0.05
of the total capital
cost)’
is unduly burdensome.
.
.
‘
2
5.
On a similar note,
there is no merit
in Ameren’s claim
that the 2000 and 2003
field measurements of noise plus
associated analytical data “are sufficient to demonstrate that
(the)
Board should grant the relief requested”.
Marc’h 10
Comment~at 10.
Simply measuring noise levels and extrapolating
data are only two steps
out’ of many that Ameren would have to
take to prove to the Board that
it is,entitled to the relief that
it seeks in its petition.
Furthermore, Ameren’s claim in its
March 10 Comments
is a direct contradiction of its petition,where
it
stated “This data must be conservatively int’erpreted because
two sets of sound pressure level data cannot be considered a
complete statistical representation of sound from
the.. Facility.”
Ameren Petition at 23.
,
.
.
.
‘
6.
Ameren hired a public relations firm to survey the
‘
local community and found no opposition to its facility.
March.
10 Comments at 20.
Of course,
A,meren did not survey the
,
‘
residents
(or the future residents)
of,the Realen Homes property
to gauge their opinion
about having
a, ,peaker plant facility
,
directly adjacent to ,ther homes which does not meet’ the State’s
Class C to Class A noise limitations.
.
7.
Ameren summarized the testimony regarding noise control’
from their expert,
Mr. Parzych of Power Acoustics.
Ameren has
asserted repeatedly that the sound abatement measures at the
facility are the best available.
March 10 Comments at 3-5,
14;
3
March 22.Response at
2,
3.
Ameren’s support
for. its claim is
weak
-
it only compared its noise equipment to the equipment
provided its nearest competitor.
March 10 Comments at
5.
It did
not compare its noise equipment to other manufacturers nor
explain the breadth of noise control measures generally within
the gas-fired peaker power plant industry.
Ameren’s claim’ that
its noise control technology was sufficient to control noise from
Class C to Class
C ‘land
(March 10 Comments at
5)
is irrelevant
given the scope of its proposed rulemaking seeks relief from
Class C land to Class A/Class B land.
Ameren could not
.,
adequately answer the Board’s. question regarding Ameren’s ability
to control noise from its facility to comply with Class A
receiving land standards.
March 22 Response at
2,
citing Tr. at
112-113.
‘
.
.
.
‘
“
8.
Ameren wrote that “Although additional existing
‘
technology is not available to sufficiently reduce noise to
compliance levels,
Petitioner examined several experimental
approaches”. March 22 Response at
3;
see also March 10 Comments
at 11-13
However,
classifying various noise control
alternatives
as’ experimental does’ not excuse the fact that Ameren
has failed to conduct a valid engineering.feasibility study of
available.noise control alternatives.
.
‘
.
9.
,
Ameren either misunderstood the record
or.. chose to mis-
characterize the
.
record by inferring that the AGO represented ‘to
4
the Board that the AGO believes that a barrier wall or berm is
the only solution to the .noise from the facility.
March 22
Response at
1,
3.
The AGO proffered to the Board that a berm and
a barrier wall are two viable alternatives commonly employed as
noise pollution control measures.
Ameren’has not provided
sufficient engineering design details or technical specifications
to completely rule out these two options.
10,.
With respect to construction of
a’ berm,
Mr. Parzych
insisted that such a berm would have to have a large base and be
50 feet tall but ‘gave few ‘other details of this option..
March 10
Comments at 12; March 22 Response at
3;
Tr.
at 165-167.
‘
Mr.
Parzych did not back up his’ testimony with any engineering
analysis.
In addition, Ameren even neglected to study and
compare the effectiveness and cost of .the earthen berm’ at the
‘
‘
nearby Reliant peaker power plant located at Eola Road and
Butterfield Road in Du Page County.,
‘
‘
‘
11.
Ameren estimated that constructing a barrier’ ~all would
cost $3.6’million.
March 10 Comments at 12; March 22 Response at
‘,
4.
However,
other than providing a rough cost estimate and the
dimensions of a barrier wall, Ameren provided no further
information in support of this estimate.
.
.
‘
12.
Ameren.indicated that it contacted the owners of the
Hillside peaker power plant facility and learned that
it is not
comparable to the Ameren facility.
March
22’ Response at
4.
.
5
Aineren provided few other details about
its investigation of the
Hillside facility (which was obviously extremely cursory) other
than comparing the size of the Hillside turbines to
a. Chevrolet
Suburban.
Améren did not even indicate what the noise output of
the Hillside facility was, nor did it provide the effectiveness
of the open building-type barrier there.
Ameren simply dismissed
the idea of an open building type-barrier and made no attempt to
do any further investigation.
,
See March 10 Comments at 13-14.
Ameren is attempting to divert attention from the fact that an
open building-type barrier is an effective,
feasible, and
economically reasonable technology to abate noi,se emissions.
13.
Ameren’ indicated that
“The suggestion that
(the
Hillside facility)
is in any way an example ofa facility
comparable to the
(Ameren facility),
seriously calls into
questions the credibility of this witness”.
‘
March 22 Response
at
4.
This comment
is yet another attempt to divert attention
from the fact that Ameren did not undertake a complete
investigation of an open building-type barrier and has failed to
sustain the burden that .itcarries in this proceeding.
14.
Ameren’s concludes that “compliance with Class A land’
use noise limits
is not possible at the Realen Homes property on
a reasonable technological or economical basis”.
March 22
Response at
5.
This conclusion is unsubstantiated;
Ameren has
demonstrated that they are unwilling to consider any viable
6
options that will bring them into compliance with the rules and’
r~egulationsof the Board.
Ameren is obviously recalcitrant to
even give serious consideration to viable and technically
feasible methods of noise abatement.
The intent of Ameren’s
petition is to avoid any actions or efforts to ameliorate the
potential nuisance to the future residents at the Realen Homes
property.
.
‘
.
.
15.
Ameren indicated that
“The record in this matter is
complete and supports the Board granting the relief requested.”
March 22 Response at
5.
The ‘AGO believes that the evidence in
this matter willshow in a clear and convincing manner that’
Ameren failed to meet its burden of proof that compliance with”
the Board’s rules and regulations
is technically impractical and
‘
economically unreasonable.
Therefore, Ameren’s petition should
.‘
be denied.
.
7
.
‘.
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
Assistan?ftorneY General;
BY:
CHINN
‘
rofessional Engineer
.
‘
Environmental Bureau
188
W. Randolph Street,
20th Floor
Chicago1
IL
60601
‘
.
.
(312)
814-5393
,‘
.
.
1~
8
CERTIFICATE
OF SERVICE
I, JOEL J.
STERNSTEIN, an Assistant Attorney General,
certify that on the l9~day of May 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.’
.
.
.
.
J~
JOEL J. STERNSTEIN
