BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PETITION OF AMEREN ENERGY
GENERATING COMPANY FOR ADJUSTED
STANDARDS FROM 35 ILL. ADM. CODE
PARTS 811, 814, AND 815
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PCB 09-01
(Adjusted Standard Land)
NOTICE OF FILING
To:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9274
William Ingersoll
Illinois Environmental Protection Agency
Division
of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
Kyle Davis
Illinois Environmental Protection Agency
Division
of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
PLEASE TAKE NOTICE that I have today electronically filed with the Office
of the
Clerk
of the Pollution Control Board
AMEREN'S REPLY TO AGENCY'S RESPONSE TO
BOARD ORDER OF SEPTEMBER 16,2008,
a copy of which is herewith served upon you.
Ameren Energy Generating Company
~
By:9 Amy
Antoniolli
Dated: October 30, 2008
Amy Antoniolli
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Electronic filing - Received, Clerk's Office, October 30, 2008
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CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 30th day of October, 2008, I have served
electronically the attached,
AMEREN'S REPLY TO AGENCY'S RESPONSE TO BOARD
ORDER OF SEPTEMBER 16, 2008,
upon the Illinois Pollution Control Board and the Illinois
Environmental Protection Agency as the parties are identified in the Notice
of Filing.
Dated: October 30, 2008
Amy Antoniolli
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Electronic filing - Received, Clerk's Office, October 30, 2008
* * * * * AS 2009-001 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PETITION OF AMEREN ENERGY
GENERATING COMPANY FOR ADJUSTED
STANDARDS FROM
35 ILL. ADM. CODE
PARTS 811, 814, AND 815
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)
)
)
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)
AS 09-01
(Adjusted Standard - Land)
AMEREN'S REPLY TO AGENCY'S
RESPONSE TO BOARD ORDER OF SEPTEMBER 16, 2008
I.
PROCEDURAL BACKGROUND
On August 11, 2008, Ameren Energy Generating Company ("Ameren" or "the
Company") filed a petition for adjusted standards from the landfill regulations with the Illinois
Pollution Control Board (the "Board")
as those regulations would apply to closure of a former
ash impoundment located
at the Hutsonville Power Station (the "Facility" or "Station").
On September
16, 2008, the Board accepted Ameren's petition. In the same order, the
Board requested both Ameren and the Illinois Environmental Protection Agency ("Agency")
to
file within 30 days of the date of the September 16 order, a document addressing three points:
(1) the authority for applying the Board's landfill regulations
to Pond D; (2) whether any of
Ameren's applicable permits address requirements for closure of Pond D; and (3) whether a site-
specific rule would perhaps be a more appropriate regulatory relief mechanism through which
to
define the closure requirements applicable to Pond D.
Both Ameren and the Agency filed responses to the Board's September 16, 2008 order on
October 16, 2008.
1
The Board gave the parties 14 days to reply to the other party's filing.
1
Ameren's Statement of Authority for Requested Relief, filed October 16, 2008 will be
referred
to throughout this response as "Statement of Authority;" the Illinois Environmental
Protection Agency Response
to Board Order of September 16, 2008, filed October 16, 2008 will
be cited
to as "Agency Resp."
Electronic filing - Received, Clerk's Office, October 30, 2008
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II.
THE PARTIES AGREE ON THE APPROPRIATE FORM OF RELIEF
Both Ameren and the Agency agree that a site-specific rulemaking is the proper form of a
request for relief
to seek closure of Pond D. Agency Resp. at 4, par.
11
("It
would be the Illinois
EPA's contention that [a site-specific regulation] may be more appropriate for review
of
Petitioner's request."). Both parties also acknowledge that no applicable permit currently
provides requirements for the closure
of Pond D. By way of background, Pond D was
constructed
as a surface impoundment in 1968. Ameren or its predecessor operated Pond D as a
water pollution treatment facility and, while it operated, Pond D received only coal combustion
by-products ("CCBs") generated at the Station.
2
III.
THE AGENCY HAS NOT SHOWN THAT AUTHORITY EXISTS FOR
APPLYING LANDFILL REGULATIONS TO THE CLOSURE OF POND D
The parties disagree on the question of whether there is authority for applying the landfill
regulations
to the closure of Pond D. Ameren maintains there is no statutory or regulatory
authority for their application. The Board's proceedings leading
up to the promulgation of the
landfill regulations demonstrate that pre-existing ash ponds were not intended
to and, ultimately,
did not come under the landfill regulations. Given the lack
of specific authority for applying the
landfill regulations, and the fact that these facilities are regulated throughout construction and
operation under the water pollution regulations, a site-specific rulemaking logically should
amend the water pollution permitting regulations. The preamble
to the Subpart B permitting
requirements provides: "[t]his Subpart B establishes basic rules for the issuance
of permits for
the construction, modification and operation
of treatment works, pretreatment works, sewers,
wastewater sources and other discharges which are not required
to have NPDES Permits." 35 Ill.
2 For the purposes of this response, Ameren will refer to ash ponds constructed before the
effective date
of the landfill regulations and receiving only on-site coal combustion wastes as
"pre-existing ash ponds."
2
Electronic filing - Received, Clerk's Office, October 30, 2008
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Adm. Code 309.201. Accordingly, Ameren asserts that the appropriate regulatory course should
be that Ameren submit an application for permit modification under Part 309, Subpart B, to the
Agency which includes the closure plan and outlines any additional requirements necessary to
initiate the closure of Pond D.
A.
The Agency's Grounds for Authority Has Been Rejected in the Past
The Agency argues that the landfill regulations apply to a unit such as a surface
impoundment where the unit is to be closed with waste in place. Its argument rests on the
definitions
of "landfill" and "disposal." Agency Resp. at 2, par. 7. As discussed in Ameren's
Statement of Authority, however, a review of Board proceedings leading to the promulgation of
the landfill regulations shows the Board in fact considered subjecting surface impoundments
usedfor disposal
to the landfill regulations and ultimately did not adopt that approach.
The definition
of "landfill," and what kind of units were intended to be covered by that
definition, was the subject
of much comment in the R88-7, the landfill regulation rulemaking.
The Board's Scientific/Technical Section ("STS") noted that several definitions, including those
of "landfill" and "disposal," as contained in the original proposal, created ambiguity as to
whether Land Treatment Units (including surface impoundments, and specifically, ash ponds)
came within the scope and intent
of the landfill regulations. After recognizing that ambiguity,
the STS went on to note "that the original intent and scope of the regulations in R88-7 might be
changed
if LTUs, used for disposal, are included in the definition for 'landfill' since the
standards being proposed pertain only to 'landfills.'"
See
Development, Operating and
Reporting Requirements for Non-Hazardous Waste Landfills ("Landfill Regulations"), R88-7,
3
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Response to Comments on Proposed Parts 807 through 815, at 18 ("STS Response") (emphasis
in original) (Mar.
13, 1990).3
Again, in discussing the scope and applicability section
of the landfill regulations, the
STS noted that LTUs or surface impoundments used for disposal
of solid wastes could be
considered "landfills," but that their addition would change the intent and scope
of the R88-7
proposal. Landfill Regulations, STS Response at 37. Further, the STS explained that
if the
Board were
to adopt a change to the definition of "landfill," the proposed Section 811.101 (scope
and applicability) should also include a subsection clarifying that LTUs or surface
impoundments used for disposal can be considered "landfills" subject to certain minimum
groundwater protection standards in the landfill regulations:
[I]t was indicated that land treatment units or surface impoundments which are
used for disposal
of solid wastes should be considered "landfills" ... However, as
noted earlier in the response in Part 810 regarding the definition of "landfill" and
"land treatment unit," the addition suggested below in subsection (b) is provided
as an option for Board consideration since it is a change affecting the earlier intent
and scope
of the R88-7 proposal as developed during the hearings. Landfill
Regulations, STS Response at 36-37 (emphasis in original).
The Board did not adopt either
of the STS's suggestions and instead maintained a
distinction
in the regulations between surface impoundments and landfills.
The issue- whether
to include ash ponds
at closure-
was also considered in the proposal
to amend the landfill regulations filed by Illinois utilities with a similar result.
See
Amendments
to the Development, Operating and Reporting Requirements for Non-Hazardous Waste
Landfills:
35 Ill. Adm. Code 811 (Utility Group Amendments), R90-25 (Nov. 29. 1990).4 The
3 The STS itself explained that it included land application units, surface impoundments,
and ash ponds when referencing land treatment units ("LTUs").
See Id.
at 18.
4 The Utility Group Amendments ultimately excluded existing ash ponds from their
proposal, finding that "[t]he inclusion
of existing ash ponds at closure was just simply
unworkable." Utility Group Amendments, R90-25, January
27,1992 Tr. at 19.
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Electronic filing - Received, Clerk's Office, October 30, 2008
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Utility Group noted during the Utility Group Amendments that the cost of bringing existing ash
ponds into compliance with the landfill rules was never even considered under the economic
impact study performed in R88-7.
See
Utility Group Amendments, R90-25, Jan. 27, 1992 Tr. at
28-29.
5
Accordingly, the record is clear that including pre-existing ash ponds used for disposal
at closure within the scope
of the landfill regulations was considered and not adopted by the
Board in prior rulemakings. Such units simply are not meant
to be included under the landfill
regulations.
B.
The Landfill Regulations Do Not Require Removal of The Ash in Pond D, Nor is
Removal Economically Reasonable or Technically Feasible
The Agency seems to suggest the coal combustion ash lawfully placed
In
Pond D
pursuant
to an Illinois EPA permit and under Agency oversight could be moved to a waste
disposal unit
as opposed to remaining in place. First, the Agency's reading of the definitions of
"landfill" and "disposal" fails to recognize that Pond D can be a compliant waste disposal site
even
if closed under a set of regulations other than the landfill rules. As the Agency notes, a
"landfill" is a unit in or on which waste is placed and accumulated over time for disposal.
Agency Resp. at
2; citing 35 Ill. Adm. Code 810.103. However, the definition also explicitly
excludes surface impoundments from the family
of units in which waste is placed and
accumulated over time for disposal.
35 Ill. Adm. Code 810.103 ("'Landfill'means 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"). In this
5 "[T]here are quite a number of such facilities, 20 odd ash impoundments or ash ponds in
the state. And the cost of bringing them into compliance with the current landfill standards was
not an never has been calculated. Therefore, we have made our petition consistent with the
Board's landfill rules and exempted existing ash ponds." Utility Group Amendments, R90-25,
Jan. 27,1992 Tr. at 28-29.
5
Electronic filing - Received, Clerk's Office, October 30, 2008
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regard, the definitions on which the Agency rely recognize that surface impoundments such as
ash ponds may accumulate waste for disposal, yet exclude them from the landfill regulations.
Second, the Agency's statement that Ameren's "assertion attributes
to the Illinois EPA a
conclusion that the waste must remain in place" gives the impression that removing coal
combustion wastes from surface impoundments used
to treat the wastes is common practice and
even that it is economically reasonable and technically feasible
to do so at Pond D.
See
Agency
Resp.
at 2, par. 5. As discussed more fully within the petition, Ameren has researched this
option and found that removal and off-site disposal at Pond D is not only economically
unreasonable but is also not feasible.
As a practical matter, Ameren, like most other utilities, built ash ponds like Pond D
to
such a size and depth that the ponds could and would act as final repositories for the coal
combustion ash they received and with
no intention of removing them. Importantly, again, the
use
of these ponds for this purpose is clearly and specifically permitted by "the Agency" through
the Bureau
of Water. In more recent years, recognizing the Agency's policy decision to apply
the landfill regulations
to the ash ponds upon closure, ash ponds have been built with more
features similar
to those required for landfills. Interestingly, although a company may choose to
so design an ash pond compliant with the landfill regulations for purposes of closure through the
Agency's Bureau
of Land, the Agency's Bureau of Land will not assess nor render an opinion as
to the design of the ash pond during the initial permitting process through the Bureau of Water.
Further, while it is now common practice
to design a surface impoundment as a landfill,
it
is unreasonable and infeasible to imply that retrofitting a pre-existing pond to meet landfill
standards
at closure, 40 years after its construction and operation under Agency oversight and
6
Electronic filing - Received, Clerk's Office, October 30, 2008
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approval, is appropriate. For all of these reasons, even implying that a possible solution is to
apply the landfill regulations to require removal or retrofitting is not appropriate.
C.
Policy and Illinois Law Merit Unique Consideration of Coal Combustion
Byproducts
Coal combustion by-products may also merit consideration as a material different than
the wastes typically put into landfills because they are independently defined under the Act and
have recognized beneficial uses under Illinois law. 415 ILCS 5/3.140; 415 ILCS 5/3.135. For
example, the Act itself exempts CCBs from the definition
of solid waste when it is used
beneficially in certain ways. 415 ILCS 5/3.135(a). Further, "to encourage and promote the use
of CCB in productive and beneficial applications," the Act allows the Agency to approve certain
uses
of coal CCBs so far as those uses do not harm or threaten to harm human health or the
environment even
if testing shows the CCB to be used may exceed Class I groundwater quality
standards for metals. 415 ILCS 5/3.135(b).
IV.
CLOSURE OF POND D UNDER THE WATER REGULATIONS IS A MORE
APPROPRIATE SOLUTION
A.
Application of the Landfill Regulations Is Unwieldy and Inappropriate
As an example of the incongruous results of applying the landfill regulations, Pond D has
been subject
to the Part 620 groundwater quality standards since their promulgation. 35 Ill.
Adm. Code 620. Application
of the landfill regulations at closure would require that Pond D
meet the Part 811.320 groundwater quality standards for the first time in its existence.
35 Ill.
Adm. Code 811.320. The Part 811.320 standards would require the groundwater quality around
Pond D
to meet stricter background concentrations of constituents despite the known impacts to
groundwater at Pond D.
A comparison to and ultimate compliance with background
concentration levels may be theoretically possible for an unaltered site that -
as envisioned by
the regulations -
is constructed with such features as a liner and leachate collection system.
It
is
7
Electronic filing - Received, Clerk's Office, October 30, 2008
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a nearly impossible compliance standard, however, for ash impoundments that were not required
to incorporate such features at the time of initial design and construction. This is only one
example
of how applying the landfill regulations, promulgated with an entirely different scope
and intent than the water quality regulations,
to Pond D at closure is problematic. Many more
difficulties are set forth in more detail in the petition.
B.
A Site-Specific Rule Under Water Pollution Regulations Will Provide for the
Closure
of Pond D in a Way That is Protective of the Environment
Outside
of stating that authority exists under the landfill regulations because Pond D
meets the definition
of a landfill, the Agency otherwise focuses on potential impact to the
environment. According
to the Agency, "a unit such as Pond D ... falls within the intent of
applying regulations that consider its impact on the environment, and which consider techniques
to be applied that are protective
of the environment." Agency Resp. at 3, par. 7. Ameren fully
agrees that closure and post closure actions will be necessary and would
be made part of a site-
specific rule. Ameren's proposal would consider the unit's impact on the environment
as well as
include techniques that are protective of the environment. As described in more detail below,
these goals can be accomplished through a site-specific rulemaking proposal amending the water
pollution permitting requirements.
The Agency contends that
18 years have passed since the Board has generally considered
this type
of facility. This may be true, but it does not change the fact that the Board chose not to
bring pre-existing ash ponds within the scope of the landfill regulations. The pre-existing ash
ponds themselves have not changed, nor have the fundamental requirements and definitions
of
the landfill regulations. As has been true since the promulgation of the rules, ash ponds used for
disposal at closure were not intended
to come within the definition of "landfill" and rulemaking
background shows they were not intended to be covered
by the landfill regulations.
8
Electronic filing - Received, Clerk's Office, October 30, 2008
* * * * * AS 2009-001 * * * * *
V.
AMEREN'S PROPOSED FORM OF SITE-SPECIFIC RULEMAKING
As is implicit in the Board's September
16 order, it is important to identify the section of
the regulations to be amended by the site-specific rulemaking so that Ameren may draft a
proposal and begin
to work with the Agency to resolve as many issues concerning how to
execute closure as possible. The Agency has argued generally that the landfill regulations would
apply to the in-place closure
of Pond D, but has not specified what Section of the regulations it
believes a site-specific rule might amend. As noted above, the development
of the landfill rules
indicates that ash ponds are not covered, in fact are excluded, from the definition
of landfill.
Ameren contends that a site-specific rulemaking would appropriately amend the water pollution
permitting requirements
of Part 309, Subpart B since this program does apply to the units in
.
6
questlon.
The general requirements outlined in section IV.B
of Ameren's Statement of Authority
address several
of the concerns raised in the Agency's response to the Board's September 16,
2008 order. Agency Response to Board Order, at 5, par. 14. A comprehensive site-specific rule
would incorporate concepts applicable
to in-place closures, such as groundwater monitoring and
a closure plan that would allow Ameren
to close Pond D in a way that brings Pond D into
compliance with Illinois groundwater quality standards. In addition, a closure plan would
provide for financial assurance and post-closure care requirements where necessary and
appropriate.
6 The proposal could add a new section to the Board'sregulations that does not fall under
either the solid waste or water pollution regulations. However, a site-specific rule is not a likely
candidate for a new section
to the Board'srules.
9
Electronic filing - Received, Clerk's Office, October 30, 2008
* * * * * AS 2009-001 * * * * *
No matter what shape or form a site-specific rule for the closure of Pond D ultimately
takes, Ameren is committed to closing Pond D in a way that protects human health and the
environment. At the same time, consideration must be given that Pond D is a pre-existing ash
pond with known impacts to groundwater that must be addressed in an appropriate closure plan.
VI.
CONCLUSION
Even while acknowledging that the landfill regulations do not easily apply, the Agency
concludes that should the coal combustion by-products remain in place, Pond D meets the
definition
of a landfill and must satisfy the landfill regulations. This is argument has already
been addressed in the past by the Board. For the foregoing reasons, Ameren maintains that a
site-specific rule addressing the closure of a pre-existing ash pond like Pond D should logically
amend the water pollution regulations. There is no statutory or regulatory authority for applying
the landfill regulations to Pond D, Pond D was constructed and has been operated during most of
its life under the water pollution regulations, and closure under any site-specific rule can be
equally protective of human health and the environment. Ameren asks the Board to determine
whether seeking a site-specific rulemaking from the water pollution permit requirements is the
more appropriate solution. Should the Board find that it is, Ameren would be prepared
to file a
proposal for site-specific rulemaking addressing closure requirements for Pond D by January 1,
2009.
10
Electronic filing - Received, Clerk's Office, October 30, 2008
* * * * * AS 2009-001 * * * * *
Accordingly. for the reasons set forth above, Petitioner AMEREN ENERGY
GENERATING COMPANY, respectfully requests the Board to find that a site-specific
regulation amending the water pollution regulations is the appropriate form
of relief through
which to execute the closure
of Pond D.
Respectfully submitted,
AMEREN ENERGY GENERATING
COMPANY,
Dated: October 30, 2008
Amy Antoniolli
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Fax: 312-258-2600
aantoniolli@schiffhardin.com
by:
11
One of Its Attorneys
Electronic filing - Received, Clerk's Office, October 30, 2008
* * * * * AS 2009-001 * * * * *
