IN
THE
MATTER
OF:
PETITION
OF
AMEREN
ENREGY
GENERATING
COMPANY
FOR
ADJUSTED
STANDARD
FROM
35111.
Adm.
Code
Parts 811,
814 and
815
John Therriault,
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
West
Randolph
Street
Suite
11-500
Chicago,
IL
60601
Carol
Webb,
Hearing
Officer
Illinois
Pollution
Control
Board
1021
North
Grand
Ave East
P.O.
Box
19276
Springfield,
Illinois
62794
CEVED
CLERK’S
OFFICE
OCT
20
2008
STATE
OF
WNOIS
)
PoUution
Control
Board
)
SchiffHardin,
LLP
Attn:
Ms.
Renee
Cipriano
and
Amy
Antoniolli
233 South
Wacker
Drive
6600
Sears Tower
Chicago,
Illinois
60606
PLEASE
TAKE
NOTICE
that I
have
today
filed
with
the office
of
the
Clerk
of
the
Pollution
Control
Board
an
APPEARANCE and RESPONSE
OF
TIlE
ILLINOIS
EPA, copies
of
which
are
herewith
served
upon
you.
Respectfully
submitted,
Dated:
October
16,
2008
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
%L
By:
William
D.
Ingersoll
Division
of Legal
Counsel
1021 North
Grand
Avenue,
East
P.O.
Box 19276
Springfield,
Illinois
62794-9276
217/782-5544
217/782-9143
(TDD)
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
AS
09-01
(Adjusted
Standard—
Land)
)
)
)
)
NOTICE
This filing
submitted
on
recycled
paper.
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
QC
2.0
2008
IN THE
MATTER
OF:
PETITION
OF
AMEREN
ENREGY
GENERATING
COMPANY
FOR
ADJUSTED
STANDARD
FROM
35
Iii. Adm.
Code
Parts
811,
814 and
815
ENTRY
OF
APPEARANCE
NOW
COMES
the undersigned,
as counsel
for
and
on the
behalf
of
the Environmental
Protection
Agency
of
the
State
of
Illinois,
and
hereby
enters
his
Appearance
in
the above
captioned
matter.
Dated:
October
16,
2008
Respectfhlly
submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent
By
1021
North
Grand
Avenue,
East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
217/782-5544
217/782-9143
(TDD)
)
Pollution
STATE
OF
Control
ILLINOIS
Board
)
)
AS
09-01
)
(Adjusted
Standard
—
Land)
)
)
William
D.
Ingersoll
Division
of
Legal
Counsel
Illinois
Environmental
Protection
Agency
This
filing submitted
on
recycled
paper.
CLERK’S
OFFICE
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
ocr
20
2008
IN THE
MATTER
OF:
)
STATE
OF
ILLINOIS
Pollution
Control
Board
PETITION
OF
AMEREN
ENERGY
)
AS 09-01
GENERATING
COMPANY
)
(Adjusted
Standard
— Land)
FOR
ADJUSTED
STANDARD
FROM
)
35111.
Adm.
Code
Parts
811,
814
and
815
)
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
RESPONSE
TO
BOARD
ORDER
OF
SEPTEMBER
16, 2008
The
ILLiNOIS
ENVIRONMENTAL
PROTECTION
AGENCY
(“illinois
EPA”),
by its
attorney
William
D.
Ingersoll,
hereby
submits
its
Response
to
the
Illinois
Pollution
Control
Board’s
September
16,
2008,
Order
and questions
contained
therein.
The
Illinois
EPA
Responds
as follows.
I. INTRODUCTION
1.
On
August
11,
2008,
Ameren
Energy
Generating
Company
(“Petitioner”
or
“Ameren”),
filed
a petition
for
Adjusted
Standard
from certain
standards
set forth
within
35
Ill.
Adm.
Code
Parts
811,
814 and
815 (“Petition”).
(Pet.
at
1)
2.
According
to the
Petition,
relief
is
sought
to allow
for closure
of a
unit
created,
operated
and
managed
throughout
its
operating
life
as a surface
impoundment,
provided
that
such
closure
would
not
require
that
the facility
comply
with
many
of
the
solid
waste
landfill
requirements
contained
within
Parts
811,
814
and 815
and
groundwater
quality
standards.
(Pet.
at
2)
3.
On
September
16,
2008,
the
Illinois
Pollution
Control
Board
(“Board”)
issued
an
Order
accepting
Ameren’
s
petition,
reserving
the
right
to
review
the
matter,
and
directing
both
Ameren
and
the
Illinois
EPA
to
answer
certain
questions
posed
within
the Order.
The
Board
also
stayed
the
need
for the
illinois
EPA
to file
a
Recommendation
pending
its review
of
the
threshold
issues
contained
within
the
September
16
Order.
II.
QUESTIONS
4.
Tn
its September
16,
2008,
Order
the
Board
posed
three
questions:
(1)
what
authority
exists
for
applying
the
Board’s
landfill
regulations
to Pond
D;
(2)
what requirements
for
closure
of Pond
D
are
addressed
in
the
facility’s
NPDES
or other
applicable
permits;
and
(3) should
the
facts
and
circumstances
presented
require
a
site-specific
rule?
QUESTION
1)
What
authority
exists
for
applying
the
Board’s
landfill
regulations
to
PondD?
RESPONSE:
In
short,
and
as more
fully
discussed
below,
the
request
to
allow
the
waste
to
remain
within
Pond
D require
that
the
unit comply
with
the
Board’s
landfill
regulations.
5.
Petitioner provides
that
“[a]ccording
to
the [Illinois
EPA],
the
pond
must
now
be
closed
consistent
with
the
landfill
regulations
contained
in 35
Iii. Adm.
Code
Parts
811
through
815, as
they
apply
to the
closure
of Pond
D.”
(Pet.
at
1)
Contrary
to
assertions,
the Illinois
EPA
would
frame
the
debate
quite
differently.
More
correctly,
waste
contained
within
Pond
D
may
only
be disposed within
a permitted
waste
disposal
site
(of
which
Pond
D
is not)
which
may
be
a
unit
within
the
Ameren
site
or
any other
properly
operating
and
permitted
waste
disposal
site.
If
Pond
D
is
the
location
for
such
disposal,
then
Pond
D would
have
to satisfy
the
requirements
for proper
environmental
control
of
potential
contaminants.
As
constructed,
Pond
D
does
not
qualify.
It
would
be more
correct
to
provide
that
wherever
this
waste
is
disposed,
the unit
must
comply
with
applicable
law
and
regulation,
which
are
protective
of
human
health
and
the
environment.
Petitioner’s
assertion
attributes
to
the
Illinois
EPA
a
conclusion
that
the
waste
must
remain
in
place.
It is
important
to
remember
that
the
waste
currently
within
Pond
D could
be
moved
to
a compliant
waste
disposal
unit,
as opposed
to
remaining
in
place,
as
Petitioner
intends.
6.
As
the
Board
correctly
phrases
the
issue,
it
is the
fact
that the
landfill
regulations
become
“applicable”
to Pond
D,
not that
these
regulations
were
intended
initially
to apply
to
such
a
unit.
7.
How
do the
regulations
become
“applicable?”
Petitioner
itself
concludes
that
it
seeks
relief
“...
from
regulations
drafted
to manage
solid
waste
landfills,
many
of
the
landfill
regulations
are
not
applicable
to a previously
operated
surface
impoundment,
permitted
as a
water
pollution
control
facility...
.“
(Pet.
at 2)
Of
course,
this
realization
is mostly
true,
as it
is
very
instructive
on
the issue
of the
applicability
of
the
Board’s
regulations
to
this
situation.
Again,
Petitioner
is
acknowledging
that
the
many
regulations
applicable
to
a
unit
subject
to the
regulations,
from
which
it
now
seeks
relief,
do not
apply
to its
unit,
unless
and
until
they
are
deemed
to be
seeking
final
disposal.
Yet,
by
admission,
the
unit is
a
nreviously
operated surface
impoundment.
The
definition
of “surface
impoundment” found
within
35
Ill. Adm.
Code
810.103
states
that
such
a
unit
is
“...
a
natural
topographic
depression,
a man-made
excavation,
or
a dike
dares
into
which
flowing
wastes,
such
as
liquid
wastes
or
wastes
containing
free
liquids,
are placed.
For the
purpose
of
this
Part
and
35 Ill.
Adm.
Code
811
through
815,
a
surface
impoundment
is not
a landfill.
Other
Parts
of 35
111.
Adm.
Code:
Chapter
I may
apply,
including
permitting
requirements
of
35 III.
Adm.
Code
309.”
This
definition
clearly
takes
an
active
surface
impoundment
out of
the
landfill
regulations
and
would
place
such
a unit
under
the
Board’s
water
regulations
and
compliance
with
an
NPDES permit
requirements
to insure
any
discharge
would
not
be
injurious
to
waters
of the
State.
An
active
unit,
a unit
which
has
“flowing”
wastes
through
it,
would
not be
required
to
comply
with
landfill
regulations,
in
that
it
would
be
regulated
under
differing
areas
of the
regulations.
However,
where
such
a
unit
ceases
to
be actively
used
as
a surface
impoundment,
the
waste
contained therein
would
be
required
to
be
disposed
of
within
a
permitted
and
compliant
waste
disposal
site.
As
the
definitions
within
the regulations
point
out, a
“landfill”
is
a
unit
in
or on
which
waste
is
placed
and
accumulated
over
time
for disposal.
(See:
35
Iii.
Adm.
Code
810.103;
See
also:
45
2
ILCS
5/3.185) “Disposal”
is defined
as
meaning
the
discharge,
deposit, injection,
dumping,
spilling,
leaking
or
placing
of
any
solid
waste
into
or
on
any
land
or
water
....
such
that
solid
waste
or
any
constituent
of
the
solid
waste
may
enter
the
environment
(or
discharged
into
any
waters,
including
groundwater).
Moreover,
Section
810.103
clearly
states
that
“[i]f
the
solid
waste
is
accumulated
and
not
confined
or
contained
to
prevent
its entry
into
the
environment,
or there
is
no
certain
plan
for its
disposal
elsewhere,
such
accumulation
shall
constitute
disposal.”
It
is
evident
from
this
definition,
that
a
unit
such
as
Pond
D,
where
waste
has
been
allowed
to accumulate,
enter
the
environment,
and
for
which
Petitioner
has
no
plan
for
disposal
elsewhere,
falls
within
the
intent
of
applying
regulations
which
consider
its
impact
on
the
environment,
and
which
consider
techniques
to
be
applied
that
are
be
protective
of the
environment.
8.
Furthermore,
the
illinois
EPA
agrees
with
the
Board’s
brief
discussion,
within
the
September
16
Order,
of
the
facts
and
analysis
ofPetition
of
Commonwealth
Edison
for
an
Adjusted
Standard
from
35
ill.
Adm.
Code
Parts
811
and
814,
AS
96-9
(Aug.
15,
1996).
This
matter
is
significantly
different
than
the
facts
in
that
Petition.
However,
should
Pond
D
be
a
disposal
site,
and
as
such
a
landfill,
Petitioner
would
need
to
insure
that
the
facility
complied
with
applicable
landfill
regulations.
QUESTION
2)
What
requirements
for
closure
of Pond
D are
addressed
in
the
facility’s
NPDES
or
other
applicable
permits?
RESPONSE:
The
Illinois
EPA
is not
aware
of
closure
requirements
within
the
currently issued
permits
applicable
to
Pond
D.
9.
The
NPDES
permit
issued
for
this
facility
does
not
contain
closure
requirements
relative
to final
disposal
of
the
waste
in
place.
The
illinois
EPA
is
unaware
of
any
other
permit
issued
for
this
unit
which provides
for closure
of
the
waste
in place.
QUESTION
3)
Should
the
facts
and
circumstances
presented
require
a
site-specific
rule?
RESPONSE:
The
facts
and
circumstances
of
this
Petition
are
more
appropriately
a rule
than
a
request
for
relief
from
the
landfill
regulations.
10.
As plainly stated
by
Petitioner:
“...
the
circumstances
applicable
to
this
ash pond
are
very
different
from
those
contemplated
by
the
Board
in
adopting
Parts
811
through
815.”
(Pet.
at
2,
Emphasis
added)
It is
also
notable
that
Petitioner’s contention
that
this
ash
pond
is very
different
from
a
typical
solid
waste
landfill
is
the
matter
of
fact
that,
this
very
type
of unit
was
not
contemplated
for permitting,
other
than
for
permitting
for
its
intended
purpose,
as
a
water
pollution
control
facility.
11.
Petitioner appears
to
base
its very
justification
for
relief
from
the
regulations
upon
the
concept
that
this
ash
pond
is very
unlike
the
units
regulated
by
the
rules
in
question.
This
may
be
true,
but
misses
the
point.
Generally
speaking,
Adjusted
Standard
petitions
are
filed
requesting
3
specific
relief
from
rules
of general
applicability
which
apply to
such units.
A facility
or
person
seeks relief,
through
Adjusted
Standard,
from
regulations
that were
intended
to apply to
them,
which
regulations
do
not
contemplate
fully
the
specific
facts
or
circumstances
that
effect
their
situation.
Additionally,
Petitioner
will
demonstrate
that
the
alternate
form
of compliance
is
equivalent
to that
contained
within
the general
rule. What
Petitioner
request
in this
pleading is
for
a
waste treatment
facility/unit
to
be
“classified”
as a non-compliant
closed
landfill.
Such
a stretch
was
not contemplated
by
the general
regulations,
since
the
general
regulations
were
not
meant
to
apply
to units not
intending
to be regulated
as
a
final
disposal
unit
in
the
first place.
Section
102.210
of
the
Board’s procedural
rules does
allow for
a site-specific
regulation(s).
It would
be
the
Illinois
EPA’s contention
that
this procedure
may
be
more
appropriate
for review
of
Petitioner’s
request.
However,
it
must
be noted
that it has
been
approximately
18 years since
the Board
has,
in
general,
considered
this
type of
facility.
In
that time,
considerable
review
has been
had
on the
national
level regarding
coal
ash
disposal
and
environmental
and
health
impacts
from such
activity.
A significant
number
of units
will likely
fall within
the category
of
sites
where coal
ash
remains
in
regulated
units,
some
of which
are no
longer accepting
or
processing
waste. It
may be
appropriate
(from
an
environmental,
economic
and policy
standpoint)
to review,
this
entire
group
of facilities
as
opposed to
engaging
in numerous
site specific
rulemakings.
12.
Within
the Introduction,
Petitioner
provides
that
“.
. .Ameren
considers Pond
D
at
closure
as
an “existing”
facility
because it
accepted
waste
prior to
September
18, 1990,
the
effective
date of
the
landfill
regulations.”
(Pet. at
2)
Significant
debate
has occurred
relative
to this
issue.
What
can be said,
in general,
is that
if Petitioner
placed waste
within
a
unit
following
1990
and
continued
past
1997, and
IF the
ash pond is
to
be
a final
waste disposal
site,
the regulations
which
would be
applicable
to
such
a
landfill would
be
those
of Parts
811
through
815 as
opposed
to Part
807.
In
Other words,
if the
Petitioner
were
to
have a surface
impoundment
prior to
1990,
and
continue use
past
1997, the
resulting
waste
unit,
under
the landfill
regulations,
would
be considered
analogous
to a
landfill
placing
waste within
an existing
unit,
and
by
comparison,
the
Petitioner’s
unit would
be
considered
an
“existing”
unit under
the landfill
regulations.
13.
It is
very
important
to point
out that discussion
of the application
of the
landfill
regulations
to such units
has
concerned
both
the Illinois
EPA
and Board
in
the past.
As
noted
in
footnote
2 of the
Board’s April
9,
1992 Order
in
R
90-25,
the Board
did
not
want
the
Utility
Group’s
deletion
of “existing
utility
ash ponds”
from
the
proposed
rulemaking
to be
construed
as a
determination
that such
units
“...
do not
become
landfills
upon
closure.” The
Illinois
EPA
would
still agree
with
this statement,
to the extent
that
it evidences
a concern
that such
units
not
fall
outside
of
regulations
which
apply to
a disposal
site designed
to protect
human
health
and
the
environment.
III. CONCLUSION
14.
Petitioner
seeks
to transform
an
unlined
wastewater
treatment
system
into
a
fmal
disposal
site
for
solid
waste.
Petitioner
seeks to
construct
a solid waste
disposal
unit
without
a
permit;
seeks
relief
from
past activity
applicable
to such
a
unit; requests
to forgo
most,
if not
essentially
all,
of
the leachate
requirements;
proposes
to
add additional
waste
and other
materials
to
4
create a
cap; by
omission
seeks that financial assurance, closure plan perpetration
and approval
and
post closure care requirements
be
forgone;
and finally requests relief from groundwater
standards
applicable
to the very contaminants commonly found
(and indeed found in this case) within
the
waste
proposed for final disposal.
15.
The constructed and closed facility
that
would
result from the requested relief
does
not fit
within the spirit nor intent of the solid waste landfill disposal
regulations
from
which
relief
is
sought and, more importantly, shoehoming
this unit into such requirements is only less
attractive
than allowing
for disposal absent most of the applicable
regulatory requirements set in place
to
insure proper construction,
operation and
maintenance
of final disposal units.
16.
Tn general, it may fairly be surmised
that
this
Petition
seeks relief from disposal
of
waste within a properly permitted facility
by
requesting
to create by Adjusted Standard a new
type
of disposal site, absent many requirements
on
other
disposal sites which insure protection
of the
environment and human health. Thus, this Petition
sounds more similar to a proposed new class
of
general rule, and as such, general relief from more stringent
and
specific
requirements
should likely
not be granted in this matter.
WHEREFORE, in accordance with the Board’s September
16,
2008 Order in this
matter,
the
Illinois EPA respectfully offers the forgoing review
and analysis for the Board’s consideration.
Respectfully submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
By:
DATED: October 16,
2008
1021 North Grand Ave. East
P.O. Box
19276
Springfield, Illinois
62794-9276
217/782-5544
William
D. Ingersoll
Division of Legal Counsel
5
CERTIFICATE
OF SERVICE
I, the
undersigned
attorney
at law,
hereby certify
that on
October
16,
2008 I
served true
and
correct
copies
of
an APPEARANCE
and
RESPONSE
OF
THE
ILLINOIS
EPA,
by
causing
to be
placed
true and
correct
copies
in
properly
sealed
and addressed
envelopes
and
by depositing
said
sealed envelopes
in
a
U.S.
mail
drop box
located
within
Springfield,
Illinois,
with sufficient
postage
affixed
thereto, upon
the
following
named
persons:
John
Therriault,
Clerk
SchiffHardin,
LLP
Illinois Pollution
Control
Board
Attn:
Ms.
Renee
Cipriano
and
Amy
Antoniolli
James R.
Thompson
Center
233
South
Wacker Drive
100
West
Randolph
Street
6600
Sears
Tower
Suite
11-500
Chicago, Illinois
60606
Chicago,
IL
60601
Carol
Webb,
Hearing Officer
flhinois Pollution
Control
Board
1021 North
Grand Ave
East
P.O. Box
19276
Springfield,
Illinois
62794
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent
By:
William
D.
Ingersoll
Division
of Legal
Counsel
1021 North
Grand
Avenue,
East
P.O.
Box 19276
Springfield,
Illinois
62794-9276
217/782-5544
217/782-9143
(TDD)
This filing submitted
on
recycled
paper.