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ILLINOIS POLLUTION CONTROL BOARD

July 22, 2004

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Adopted Rule. Final 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. In the petition, Ameren seeks site-specific noise emission limitations with respect to the operation of the Ameren’s electric generating facility in Elgin, Cook County. A hearing was held o n January 22, 2004, at 100 West Randolph Street, Chicago, Cook County. The hearing was held, in part, on the economic impact of the proposal.

By today’s action the Board adopts the proposed amendments. The rules adopted here are substantively unchanged from those adopted in the Board’s first-notice and second-notice opinion and order. On June 3, 2004, the Board proposed the rulemaking for second notice. The Board directed that the rule be submitted to the Joint Committee on Administrative Rules (JCAR) for second-notice review. On July 13, 2004, JCAR issued a certification of no objection to the rule. The following opinion will explain the proposal background, summarize the procedural history, and discuss the economic reasonableness and technical feasibility of the rule.

BACKGROUND

Ameren owns a power generating facility in Elgin (EEC) consisting of four simple cycle combustion turbines capable of generating up to 540 MW of electricity. Pet. at 1. The EEC is located at 1559 Gifford Road, Elgin, Cook County. Id. The EEC is described as a peaking facility due to its intended design to start up rapidly to generate power when critically needed. The EEC 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 EEC 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 EEC is vacant, and until very recently was located within unincorporated 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 EEC 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 EEC that are applicable to Class A and B receiving lands. Id.

PROCEDURAL HISTORY

On October 28, 2003, Ameren filed a petition for a site-specific rulemaking, accompanied by a motion for expedited consideration. On November 6, 2003, the Board opened regulatory docket R04-11 without commenting on the merits of the proposal. The Board also granted the motion for expedited review.

A hearing in this matter was held on January 22, 2004, at 100 West Randolph Street, Chicago, Cook County. Ameren and the Attorney General’s Office (AGO) appeared and presented testimony at the hearing. No members of the public attended the hearing. Ameren and the AGO each filed public comments after the hearing. The January 22, 2004 hearing was held, in part, on the requested economic impact study of this rulemaking, in order to fulfill the requirements of Section 27(b) of the Act. 415 ILCS 5/27(b) (2002). Section 27(b) of the Act requires the Board to request the Illinois Department of Commerce and Economic Opportunity (DCEO) to conduct an economic impact study (EcIS) on certain proposed rules prior to adoption of those rules.

On May 6, 2004, the Board issued an order that granted Ameren’s motion for leave to file a response and its motion to supplement the record. The Board also granted the AGO leave until May 14, 2004, to submit any additional information regarding the response and supplementation of the record. On May 19, 2004, the AGO filed a motion for leave to file instanter additional comments by its witness and employee Howard Chin.

JCAR considered the second-notice proposal at its July 13, 2004 meeting and determined that no objection would be made. JCAR suggested two non-substantive changes, and issued a formal certification of no objection to the proposed rulemaking on July 13, 2004.

DISCUSSION

At first notice, the Board adopted the proposed rule for first notice, but did not make any decisions regarding the proposal itself. At second notice, the Board found that Ameren presented information demonstrating that compliance with 35 Ill. Adm. Code Part 901 is not economically reasonable or technically feasible, and proceeded with the language for a site-specific rule as proposed by Ameren. To date, the Board has received no additional comments discussing economic reasonableness and technical feasibility of the proposed rule.

As discussed in the second-notice order, the Board requested that the DCEO conduct an economic impact study on the proposed rule in a letter dated November 19, 2003. The letter referenced an April 17, 2003 letter in which DCEO stated they did not have the funds to perform any EcIS and that no studies will be performed. DCEO has offered the April 17, 2003 letter as its formal response to all current and future Board requests for an EcIS. At the hearing, the Board made available copies of its November 19, 2003 letter and DCEO’s April 17, 2003 response. The Board received no comments on the letters.

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CONCLUSION

 Based on the record before it, the Board finds that adoption of Ameren’s proposed site-specific rule is warranted.

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ORDER

The Board directs the Clerk to file the following adopted rule with the Secretary of State for publication in the Illinois Register for final notice and adoption in the Illinois Administrative Code.

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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.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board adopted the above opinion and order on July 22, 2004, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

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