ILLINOIS POLLUTION CONTROL BOARD

September 16, 2008

IN THE MATTER OF:

PETITION OF AMEREN ENERGY

GENERATING COMPANY FOR

ADJUSTED STANDARDS FROM 35 ILL.

ADM. CODE PARTS 811, 814, 815

)

AS 09-1

(Adjusted Standard – Land)

ORDER OF THE BOARD (by A.S. Moore):

On August 11, 2008, Ameren Energy Generating Company (Ameren) filed a petition for

an adjusted standard (Pet.).

See

415 ILCS 5/28.1 (2006). Ameren generates electricity at a

power plant known as the Hutsonville Power Station (Station) located on a site approximately

205 acres in size near Hutsonville, Crawford County. Pet. at 5;

see

Pet., Exh. 1 (Site Location

Map). The Station employs 58 persons, and its principal equipment “includes coal-fired boilers

for steam production and steam driven turbine generators.” Pet. at 5. The Station includes a

circulating water system that draws water from the Wabash River for use in the boiler and

turbine equipment.

. at 5-6. The system removes ash, a byproduct of coal combustion, and

sluices it through pipelines to an ash impoundment system.

. at 6. That system consists of a

series of ponds “in which solids settle and sluicewater decants from pond to pond before

discharging to the Wabash River via an NPDES [National Pollutant Discharge Elimination

System] permitted outfall.”

see id.

, Exh. 2 (Site Plan). The ponds accept only coal

combustion waste, both bottom ash and fly ash, and low-volume waste from the Station.

. at 6.

Ameren’s petition addresses an unlined ash impoundment designated as “Pond D.” Pet.

at 6. “Pond D was constructed from indigenous earthen materials in 1968 and operated as the

Station’s wastewater treatment unit (receiving bottom and fly ash transport water and

miscellaneous low-volume wastes) until the construction of a synthetically-lined pond (“Pond

A”) in 1986.”

. In 2000, Ameren constructed two additional lined ponds, Ponds B and C.

Ameren then removed Pond D from service and allowed it to dewater.

. “Ameren estimates

that during its 30 years of active operation, Pond D accumulated approximately 750,000 cubic

yards of ash and approximately one-third of this volume (280,000 cubic yards) lies below the

water table.”

., citing Pet., Exh. 3, Table 3-2 (Areal Extent and Volumes of Unsaturated and

Saturated Ash in Pond D). Ameren states that“[a]n additional 200,000 cubic yards of ash were

added to Pond D since it was taken out of service (with Illinois Environmental Protection

Agency approval) to establish an acceptable grade in anticipation of constructing the proposed

cap at closure.” Pet. at 6-7.

Ameren states that the Illinois Environmental Protection Agency (Agency) has taken the

position that “the pond must now be closed consistent with the landfill regulations contained in

35 Ill. Adm. Code Parts 811 through 815, as they apply to the closure of Pond D.” Pet. at 1.

Ameren further states that “[b]ecause Pond D was created, operated, and managed throughout its

operating life as a surface impoundment, no landfill permit was required pursuant to Section

21(d) of the [Environmental Protection] Act.”

Id.

at 1-2;

see

415 ILCS 5/21(d) (2006). Ameren

further states that, “[b]ecause Ameren operated Pond D as a water pollution treatment facility

and Pond D has received only wastes generated by Ameren within the Site, no landfill permit is

required pursuant to Section 21(d) of the [Environmental Protection] Act at closure.”

. at 2,

citing 35 Ill. Adm. Code 810.103. Ameren suggests that, if Pond D is to be subject to the landfill

regulations and is considered as an existing facility exempt from permitting, “Pond D is subject

to 35 Ill. Adm. Code 814.302(a) and (b), as well as the applicable Part 811 and Part 815

requirements, at closure.” Pet. at 2, citing 35 Ill. Adm. Code 810.103, Development, Operating

and Reporting Requirements for Non-Hazardous Waste Landfills, R88-7 (Aug. 17, 1990).

Ameren argues that many of these solid waste landfill regulations do not apply to a previously-

operated surface impoundment permitted as a water pollution control facility.

. Ameren

further argues that, [p]lainly, the circumstances applicable to this ash pond are very different

from those contemplated by the Board in adopting Parts 811 through 815.”

Specifically, Ameren seeks adjusted standards from a number of regulations: final cover

requirements (35 Ill. Adm. Code 811.314(b)(3)); leachate collection and management systems

standards (35 Ill. Adm. Code 814.302(b), 811.309); groundwater impact assessment

requirements (35 Ill. Adm. Code 811.317, 811.319(c)); maximum allowable predicted

concentration requirements (35 Ill. Adm. Code 811.318, 811.319); various groundwater quality

standards (35 Ill. Adm. Code 811.320); various groundwater monitoring requirements (35 Ill.

Adm. Code 811.319); and monitoring well location requirements (35 Ill. Adm. Code

811.318(b)).

See

Pet. at 3.

In addition, Ameren argues that, as it seeks to close Pond D, a number of operating

standards do not apply to it. Pet. at 36. Ameren claims that “[t]hese rules were intended to apply

to a working landfill handling putrescible waste which would create issues regarding vectors and

landfill gas to be addressed by cover, vector control and landfill gas management.”

. at 37.

“Accordingly, Ameren requests an adjustment from these standards or a determination from the

Board that these regulations do not apply.”

. at 37. Specifically, Ameren claims that the

following operating conditions do not apply to closure of Pond D: compaction of waste (35 Ill.

Adm. Code 811.105); daily cover (35 Ill. Adm. Code 811.106); phasing of operations (35 Ill.

Adm. Code 811.107(a)); working face (35 Ill. Adm. Code 811.107(b)); vector control (35 Ill.

Adm. Code 811.107(i)); landfill gas monitoring and management (35 Ill. Adm. Code 811.310,

811.311, 811.312); intermediate cover (35 Ill. Adm. Code 811.313); waste placement (35 Ill.

Adm. Code 811.321); final slopes and stabilization (35 Ill. Adm. Code 811.322); initial facility

report filing deadline (35 Ill. Adm. Code 815.202(a)); permit information requirements (35 Ill.

Adm. Code 815.302(b)); and annual report information requirements (35 Ill. Adm. Code

815.303(a)).

See

Pet. at 3-4, 36-37.

The Board notes that Ameren conditionally waives hearing in this proceeding. Pet. at 42.

“Should the Agency file a negative recommendation or the Board require additional information,

however, Ameren reserves its right to request a hearing at that time.”

Section 28.1(d)(1) of the Environmental Protection Act (Act) (415 ILCS 5/28.1(d)(1)

(2006)) and Section 104.408(a) of the Board’s procedural rules (35 Ill. Adm. Code 104.408(a))

require the adjusted standard petitioner to publish notice of filing the petition. Those authorities

require advertisement in a newspaper of general circulation in the area likely to be affected by

the proposed adjusted standard. The notice must indicate that any person may cause a public

hearing to be held on the proposed adjusted standard by filing a hearing request with the Board

within 21 days after publication. 415 ILCS 5/28.1(d)(1) (2006); 35 Ill. Adm. Code 104.408(b).

Publication must take place within 14 days after the petition is filed. 415 ILCS 5/28.1(d)(1)

(2006); 35 Ill. Adm. Code 104.408(a);

see also, e.g.

In re

Petition of SCA Tissue North

American, L.L.C. for an Adjusted Standard from 35 Ill. Adm. Code 218.301 and 218.302(c), AS

05-1 (Jan. 6, 2005) (dismissing petition for adjusted standard for lack of jurisdiction when

publication of notice occurred after 14-day period). Within 30 days after filing the petition, the

petitioner must file a certificate of publication with the Board. 35 Ill. Adm. Code 104.410.

On September 9, 2008, Ameren filed with the Board a certificate of publication

documenting that the required notice of the petition was published in the

Robinson Daily News

on August 22, 2008. The Board finds that Ameren has met the notice requirements of the Act

and the Board’s procedural rules.

See

415 ILCS 5/28.1(d)(1) (2006); 35 Ill. Adm. Code 104.408,

104.410.

The Board accepts Ameren’s petition for an adjusted standard. Today’s order provides

no determination on the informational sufficiency or merits of Ameren’s petition. The Board,

through orders of its own or its hearing officer, may direct Ameren to provide additional

information concerning its petition for an adjusted standard.

As a threshold issue, however, the Board notes that the general provisions of its solid

waste disposal regulations define “landfill” in pertinent part as “a unit or part of a facility in or

on which waste is placed and accumulated over time for disposal, and which is not a land

application unit, a surface impoundment or an underground injection well.” 35 Ill. Adm. Code

810.103. The same provisions define a “surface impoundment” in pertinent part as “a natural

topographic depression, a man-made excavation, or a diked area into which flowing wastes, such

as liquid wastes or wastes containing free liquids, are placed. For the purposes of this Part [810]

and 35 Ill. Adm. Code 811 through 815, a surface impoundment is not a landfill.”

Ameren argues that, because it created, operated, and managed Pond D as a surface

impoundment, Pond D did not require a landfill permit during operation. Pet. at 1-2, citing 415

ILCS 5/21(d) (2006), Petition of Conversion Systems, Inc. for an Adjusted Standard from 35 Ill.

Adm. Code Part 811 (Liner), AS 93-4, slip op. at 1, n.3 (Aug. 26, 1993). Ameren further argues

that, because Pond D operated as a water pollution control facility and accepted only wastes

generated on-site by Ameren’s own activities, Pond D does not require a landfill permit at

closure. Pet. at 2, citing 35 Ill. Adm. Code 810.103. Ameren states that the Agency now

requires that Pond D must be closed according to applicable landfill regulations. Pet. at 1.

Ameren suggests that the inapplicability of many of these regulations necessitates the filing of its

petition.

See

Pet. at 2.

The Board directs Ameren and the Agency to each file with the Board within 30 days of

the date of this order a document specifying the authority for applying the Board’s landfill

regulations to Pond D. Second, the Board directs both Ameren and the Agency in that filing to

address whether requirements for the closure of Pond D are addressed in the facility’s NPDES or

any other applicable permit. In addition, the Board directs both Ameren and the Agency in that

filing to address the issue of whether, under the facts and circumstances described in the petition,

a site-specific rule is the appropriate regulatory relief mechanism for Amenen to pursue in

seeking to close Pond D.

See

415 ICLS 5/27(a) (2006), 35 Ill. Adm. Code 102.210 (Proposal

Contents for Site-Specific Regulations). Within 14 days after Ameren and the Agency file this

document, both Ameren and the Agency may file a response to one another.

The Board notes that, “[u]nless otherwise ordered by the hearing officer or the Board, the

[Agency’s] recommendation must be filed with the Board within 45 days after the filing of the

petition or amended petition . . . .” 35 Ill. Adm. Code 104.416(a). The Board today stays the

Agency’s deadline for filing its recommendation on the petition and will set any deadline

necessary for filing the recommendation after Ameren and the Agency have addressed the

threshold issue described in the preceding paragraphs.

In this regard, the Board notes that it has granted an adjusted standard from landfill

regulations in a case involving deposits of coal combustion wastes.

See

Petition of

Commonwealth Edison for an Adjusted Standard from 35 Ill. Adm. Code Parts 811 and 814, AS

96-9 (Aug. 15, 1996). However, that case involved a site that had been permitted as a landfill for

coal combustion waste since 1976, approximately 20 years before the Board granted that

petition.

See id.

at 2.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on September 16, 2008, by a vote of 4-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board