ILLINOIS POLLUTION CONTROL BOARD
March 5, 2009
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 for its Hutsonville Power Station (Station) located near Hutsonville,
Crawford County. In its petition, Ameren indicates that it seeks regulatory relief in order to
close an unlined ash impoundment at the Station designated as “Pond D.” Ameren’s petition
states that the Illinois Environmental Protection Agency (Agency) has taken the position that the
pond must be closed according to landfill regulations as those regulations apply to it.
See
35 Ill
Adm. Code Parts 811-815. Generally, Ameren questions the applicability of landfill regulations
to a site of this nature.
In an order dated September 16, 2008, the Board directed both Ameren and the Agency
to file a document specifying the authority to apply the Board’s landfill regulations to Pond D.
The same order allowed Ameren and the Agency to file a response to one another. After
reviewing those filings, the Board dismisses this petition for an adjusted standard, finding that it
is an inappropriate mechanism for granting the relief sought by Ameren. The Board finds that a
site-specific rule is the appropriate regulatory relief mechanism under which to close Ameren's
Pond D. In its conclusion below, the Board directs Ameren in any petition for a site-specific rule
to propose an amendment to the Board’s Subtitle G solid waste regulations.
In the order below, the Board will first review the procedural history of this proceeding,
Ameren’s petition for an adjusted standard, and the Board’s September 16, 2008, order. The
Board then summarizes Ameren’s statement of authority, the Agency’s response to the Board’s
September 16, 2008, order, and Ameren’s reply. The Board then discusses the issues raised in
those filings and reaches its conclusion on them.
PROCEDURAL BACKGROUND
On August 11, 2008, Ameren filed a petition for an adjusted standard (Pet.). Ameren
requested that the Board adopt adjusted standards from specified solid waste landfill regulations
as they apply to closure of Pond D at the Station. The petition included twelve exhibits (Exh.).
On September 9, 2008, Ameren timely filed with the Board proof of publication
indicating that the
Robinson Daily News
on August 22, 2008, published notice of filing the
petition.
See
35 Ill. Adm. Code 104.410 (requiring filing of certificate of publication within 30
days after filing petition).
2
In an order dated September 16, 2008, the Board accepted Ameren’s petition without
making any determination regarding its informational sufficiency or its substantive merits. In the
same order, the Board directed Ameren and the Agency each to file within 30 days a document
specifying the authority for applying the Board’s landfill regulations to Pond D. The Board also
directed Ameren and the Agency to address whether any permit applicable to the Station
contains requirements to close Pond D. Finally, the Board also directed Ameren and the Agency
to address whether a site-specific rule is the appropriate regulatory relief for Ameren to pursue in
seeking to close Pond D. The Board provided that, within 14 days after Ameren’s and the
Agency’s filings, both Ameren and the Agency may file a response to one another.
On October 16, 2008, Ameren filed its “Statement of Authority for Requested Relief”
(Ameren Statement). Also on October 16, 2008, the Agency filed its response to the Board’s
September 16, 2008, order (Agency Response). On October 30, 2008, Ameren filed its reply to
the Agency’s response (Ameren Reply).
AMEREN’S PETITION
The petition states that Ameren generates electricity at the Station on a site approximately
205 acres in size. 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 systems.
Id
. at 5-6.
The system removes ash, a byproduct of coal combustion, and sluices it through pipelines to an
ash impoundment system.
Id
. 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.”
Id
.;
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.
Id
. at 6.
Ameren’s petition addresses an unlined ash impoundment designated as Pond D. Pet. at
1, 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.”
Id
. at 6. Pond D covers approximately 22 acres and comes as close as 100 feet to
the west bank of the Wabash River, which forms the eastern border of the Station.
Id
. 5, 6. In
2000, Ameren constructed two additional lined ponds, Ponds B and C, in order to “supplement
the ash management capabilities and to improve surface water management at the property.”
Id
.
at 5. Ameren then removed Pond D from service and allowed it to dewater.
Id
. “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.”
Id
., 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.
3
Ameren states that it seeks regulatory relief “in order to complete closure of Pond D.”
Pet. at 1. Ameren further states that the 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.”
Id
.
Ameren argues 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” (Act).
Id.
at 1-2, citing 415 ILCS 5/21(d) (2006),
35 Ill. Adm. Code 810.103; In the Matter of: Petition of Conversion System, Inc. for 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, “[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 Act at closure.”
Id
. at 2, citing 415 ILCS
5/21(d) (2006), 35 Ill. Adm. Code 810.103 (Definitions).
Ameren argues that many of the solid waste landfill regulations do not apply to a
previously-operated surface impoundment permitted as a water pollution control facility. Pet. at
2. 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.”
Id
.;
see
35
Ill. Adm. Code 811 (Standards for New Solid Waste Landfills), 812 (Information to Be
Submitted in a Permit Application), 813 (Procedural Requirements for Permitted Landfills), 814
(Standards for Existing Landfills and Units), 815 (Procedural Requirements for All Landfills
Exempt from Permits). Ameren suggests that, if Pond D is to be subject to the landfill
regulations and is considered as an existing facility exempt from permitting under Section
21(d)(1)(i) of the Act, then “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 415 ILCS
5/21(d)(1)(i) (2006); 35 Ill. Adm. Code 810.103 (Definitions); Development, Operating and
Reporting Requirements for Non-Hazardous Waste Landfills
In addition, Ameren argues that, as it seeks to close Pond D, a number of landfill
operating standards in Parts 811, 814, and 815 do not apply to it. Pet. at 36-37, citing 35 Ill.
Adm. Code 811, 814, 815;
, R88-7 (Aug. 17, 1990) (final
Board adoption of landfill regulations).
Accordingly, 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)). Pet. at 3, 37-38.
In the Matter of: Petition of Midwest Generation, L.L.C. (formerly
petition of Commonwealth Edison Company) for an Adjusted Standard from 35 Ill. Adm. Code
811.814, AS 96-9, slip op. at 19 (Aug. 15, 1996);
see
Pet. at 3-4. Ameren claims that “[t]hese
rules were intended to apply to a working landfill handling putrescible waste which would create
4
issues regarding vectors and landfill gas to be addressed by cover, vector control and landfill gas
management.” Pet. at 37. “Accordingly, Ameren requests an adjustment from these standards or
a determination from the Board that these regulations do not apply.”
Id
. 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.
BOARD’S OCTOBER 16, 2008, ORDER
In its October 16, 2008, order, the Board accepted Ameren’s petition for an adjusted
standard without making any determination on the informational sufficiency or the substantive
merits of the petition. As a threshold issue, however, the Board noted 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 Board also noted that 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.”
Id
.
In the same order, the Board directed Ameren and the Agency each to file with the Board
within 30 days a document specifying the authority for applying the Board’s landfill regulations
to Pond D. The Board also directed both Ameren and the Agency to address in that filing
whether requirements for closure of Pond D are addressed in the facility’s National Pollutant
Discharge Elimination System (NPDES) permit or any other applicable permit. The Board also
directed both Ameren and the Agency to address in that filing the issue of whether, under the
facts and circumstances described in the petition, a site-specific rule is the appropriate regulatory
relief for Ameren in seeking to close Pond D. The Board provided that, within 14 days after
Ameren and the Agency file such a document, both Ameren and the Agency may file a response
to one another.
Also in that order, the Board noted 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 stayed the Agency’s deadline for filing its recommendation on the petition and stated
that it would set any deadline necessary for filing the recommendation after Ameren and the
Agency addressed the threshold issue regarding applicability of the landfill regulations to Pond
D.
5
AMEREN’S STATEMENT OF AUTHORITY
Ameren states that it filed its petition for an adjusted standard after years of discussion
with the Agency about the proper procedure for closing Pond D. Ameren Statement at 2.
Ameren further states that both it and its predecessors have maintained that neither the Act nor
Board regulations “provide explicit authority for how pre-existing ash ponds like Pond D must
be regulated at closure.”
Id
. Ameren argues that, “[b]ecause these pre-existing ash ponds were
designed, developed and operated before the promulgation of the existing landfill standards,
application of these standards to these units proves unwieldy and ineffectual. . . .”
Id
.
Ameren states that, in spite of the misgivings summarized in the preceding paragraph, it
filed a petition for an adjusted standard from the landfill regulations based on the Agency’s
belief that an adjusted standard was the appropriate mechanism for closing Pond D. Ameren
Statement at 2-3. Ameren believes that a site-specific rule is the more appropriate mechanism.
Id
. at 3. “Ameren contends that a site-specific rulemaking regulating the closure of Pond D
should amend the water pollution permit requirements, yet incorporate concepts applicable to in-
place closures, such as groundwater monitoring and a closure plan.”
Id
.
Ameren emphasizes that “Pond D is not unique.” Ameren Statement at 3;
see also
Pet. at
2 n.1 (“Many more coal combustion electric generating facilities throughout Illinois will face a
similar need for relief as their on-site ash ponds reach capacity and are taken out of operation.”).
Ameren indicates that it and its affiliated companies own seven other Illinois facilities with
similar ash impoundments that are expected to reach capacity and require closure within five to
seven years.
Id
. Ameren suggests that many of these other ash impoundments also predate
adoption of the Board’s landfill regulations.
Id.
Ameren argues that its “closure of Pond D will
likely serve as an example for the closure of other similarly-situated ash ponds in the future.”
Id
.
Below, the Board summarizes Ameren’s arguments regarding the three issues raised in
the Board’s September 16, 2008 order.
Ameren argues that “the Board has not adopted rules that would regulate pre-existing ash
ponds under the landfill regulations.” Ameren Statement at 4. Ameren states that, in the
rulemaking adopting the non-hazardous solid waste landfill regulations, the Board confronted the
issue of whether to regulate ash ponds as landfills by including them in the definition of
“landfill.”
Id
. at 4-5, citing
Authority to Apply Landfill Regulations to Pond D
In the Matter of: Development, Operating and Reporting
Requirements for Non-Hazardous Waste Landfills, R88-7 (Mar. 13, 1990) (Scientific/Technical
Staff Response to Comments). Ameren argues that “[t]he Board ultimately chose not to include
ash ponds in the definition of landfill.” Ameren Statement at 5, citing In the Matter of:
Development, Operating and Reporting Requirements for Non-Hazardous Waste Landfills, R88-
7, slip op. at 16-18 (Mar. 13, 1990);
see
35 Ill Adm. Code 810.103 (Definitions). Ameren further
argues that the Board included ash ponds in the definition of “land application unit.” Ameren
Statement at 5, citing In the Matter of: Development, Operating and Reporting Requirements for
Non-Hazardous Waste Landfills, R88-7, slip op. at 17 (Mar. 13, 1990);
see
35 Ill. Adm. Code
810.103. Ameren claims that the definition of “land application unit” refers to the Board’s water
6
pollution permit requirements in order to indicate that those units may require discharge permits.
Ameren Statement at 5, citing In the Matter of: Development, Operating and Reporting
Requirements for Non-Hazardous Waste Landfills, R88-7, slip op. at 17 (Mar. 13, 1990);
see
35
Ill. Adm. Code 309 (Permits), 810.103 (Definitions).
Ameren states that, in 1990, six utilities “jointly proposed amendments to the landfill
regulations that would apply to facilities receiving coal combustion wastes generated by electric
utilities.” Ameren Statement at 6, citing 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). Ultimately, however, the Board granted the
utilities’ motion to withdraw their proposal in its entirety and dismissed the rulemaking
proceeding. Amendments to the Development, Operating and Reporting Requirements for Non-
Hazardous Waste Landfills: 35 Ill. Adm. Code 811 (Utility Group Amendments, R90-25, slip
op. at 1 (Apr. 9, 1992).
In addition, Ameren claims that the Agency “has changed policy over the years on how it
addresses the closure of pre-existing ash ponds.” Ameren Statement at 7. Specifically, Ameren
compares the terms of a 1989 consent decree addressing the closure of ash ponds by Illinois
Power Company with the Agency’s current position that ash ponds must be closed under landfill
regulations.
Id
., citing
id
., Exh. 1 (consent decree and modifications). Ameren suggests that the
Agency’s position on this issue should result from a procedure including public participation.
See id
.
Ameren states that, at least since 2001, it has discussed with the Agency the suitability of
an adjusted standard from the landfill regulations as the appropriate mechanism to close Pond D.
Ameren Statement at 7,
see id
., Exh 2 (meeting records). Ameren argues that the scope of its
requested relief demonstrates the difficulty of applying those requirements to Pond D. Ameren
Statement at 7. Particularly when the Board has itself questioned the applicability of those
regulations, “Ameren asks the Board to determine the appropriate environmental standards
applicable to Pond D.”
Id
. at 7-8.
Permit Requirements
As noted above, the Board requested that both Ameren and the Agency address whether
the facility’s NPDES permit or any other applicable permit addresses requirements for closure of
Pond D. Ameren states that “[n]either the most recently applicable National Pollutant Discharge
Elimination System (NPDES) permit, nor the current 35 Ill. Adm. Code Part 309, Subpart B
State Operating Permit provide instruction on how to close Pond D.” Ameren Statement at 8,
citing
id
., Exh 3 (NPDES Permit No. IL0004120), Exh. 4 (Water Pollution Control Permit No.
2005-EO-3689).
Ameren states that a site-specific rulemaking is the appropriate regulatory relief for
closing Pond D. Ameren Statement at 8;
see generally
415 ILCS 5/27, 28 (2006); 35 Ill. Adm.
Code 102.208 (Proposal for Site-Specific Regulations), 102.210 (Proposal Contents for Site-
Mechanism for Regulatory Relief
7
Specific Regulations). Noting that Pond D has been subject to permits under both NPDES and
Subpart B of Part 309, Ameren argues that “a site-specific rulemaking for the closure of Pond D
would logically amend Part 309 of the Water Pollution regulations regarding permits.” Ameren
Statement at 8, citing 35 Ill. Adm. Code 309;
see
Ameren Statement, Exhs, 3, 4 (permits).
Ameren cites the Illinois Power consent decree as an instance in which the Agency’s Bureau of
Water has overseen ash pond closure. Ameren Statement at 8;
see id.
, Exh. 1 (consent decree
and modifications). Ameren indicates that other states’ water pollution statutes and regulations
address the closure of ash ponds.
Id
. at 8-9, citing
id
., Exh. 5 (N.C. GEN. STAT. § 143-215.1),
Exh. 6 (N.C. ADMIN. CODE tit. 15A, r. 02T .1100 (eff. Sept. 1, 2006) (Residuals Management)),
Exh. 7 (Guidelines for the Closure of Treatment Ponds and Lagoons), Exh. 8 (Ohio statutes and
regulations).
Ameren states that “[a]ll pre-existing ash ponds share certain qualities that must be
addressed in closure requirements.” Ameren Statement at 9. Ameren proposes a general outline
of rules that might address those units “in a way that protects human health and the
environment.”
Id
. Specifically, that outline includes language defining “ash pond”, setting
groundwater quality standards, establishing zones of attenuation, requiring closure plans
including various elements, describing reporting requirements, and establishing post-closure
obligations.
See id.
at 9-10. Ameren states that, in addition to these general requirements, “[a]
site-specific regulation must take into consideration the unique aspects of Pond D.”
Id
. at 10. As
examples of those aspects, Ameren cites its original petition including both a proposed cover
system (Pet., Exh 10) and a groundwater monitoring plan (Pet., Exh. 11). Ameren argues that
these aspects “could easily be adapted into a site-specific rule.” Ameren Statement at 11.
Summary
Ameren argues that “there is no statutory or regulatory authority for applying the landfill
regulations to Pond D” and that an adjusted standard from those regulations is not the
appropriate avenue to closing Pond D. Ameren Statement at 11. Instead, Ameren “asks the
Board to determine whether seeking a site-specific rulemaking from the water pollution control
requirements is a more appropriate solution.”
Id
.
AGENCY RESPONSE
The Agency argues that the Board’s definition of “surface impoundment” clearly
excludes active surface impoundments from the Board’s landfill regulations. Agency Response
at 2, citing 35 Ill. Adm. Code 810.103. The Agency further argues that the active surface
impoundment would be subject to the Board’s water regulations and NPDES permit
Authority to Apply Landfill Regulations to Pond D
The Agency argues that Ameren can only dispose of the waste in Pond D in a permitted
waste disposal site, whether at the Station or at another site. Agency Response at 2. The Agency
states that Pond D does not qualify as such a site.
Id
. The Agency claims that, if Ameren seeks
final disposal of those waste in Pond D, “then Pond D would have to satisfy the requirements for
proper environmental control of potential contaminants.”
Id
.
8
requirements in order to protect the waters of the State from injurious discharges. Agency
Response at 2. The Agency claims, however, that Pond D is a previously-operated surface
impoundment where waste has accumulated over time and entered the environment.
Id.
at 2-3,
citing 415 ICLS 5/3.185 (2006) (defining “disposal”). Stating that Ameren has no plan to
dispose of that waste at any other location, the Agency argues that Pond D has become a disposal
site and, as such, subject to the Board’s landfill regulations. Agency Response at 2-3, citing 35
Ill. Adm. Code 810.103.
Permit Requirements
The Agency states that “[t]he NPDES permit issued for this facility does not contain
closure requirements relative to final disposal of the waste in place.” Agency Response at 3.
The Agency further states that it “is unaware of any other permit issued for this unit which
provides for closure of the waste in place.”
Id
.
Mechanism for Regulatory Relief
The Agency argues that petitions for an adjusted standard seek relief from generally-
applicable rules. Agency Response at 3-4. “A facility or person seeks relief, through [an]
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.”
Id
.;
see
415
ILCS 5/28.1(c) (2006). The Agency claims that Ameren effectively seeks to reclassify a waste
treatment facility as a non-compliant closed landfill. Agency Response at 4. The Agency
suggests that it is not appropriate to achieve this reclassification through an adjusted standard
because the generally-applicable landfill regulations “were not meant to apply to units not
intending to be regulated as a final disposal unit in the first place.”
Id
.
Noting that the Board’s regulations provide for site-specific rules, the Agency contends
that “this procedure may be more appropriate for review of Petitioner’s request.” Agency
Response at 4, citing 35 Ill. Adm. Code 102.210 (Proposal Contents for Site-Specific
Regulations). The Agency notes, however, that the Board has not generally considered facilities
such as Pond D. Agency Response at 4. The Agency argues that, “[i]n that time, considerable
review has been had on the national level regarding coal ash disposal and environmental and
health impacts from such activity.”
Id
. Noting that there may be a significant number of similar
units, the Agency suggests that it may be more appropriate to adopt a rule addressing all of those
units than to adopt a number of site-specific rules.
Id
.
The Agency argues that “[t]he 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. . . .” Agency Response at 5. The Agency further argues
that it is not appropriate to strain to fit Pond D into those landfill regulations or to allow for
disposal in Pond D without applying standards for “proper construction, operation and
maintenance of final disposal units.”
Id
. The Agency suggests that it may not be appropriate to
draft generally-applicable regulations for a distinct type of disposal site through an adjusted
Summary
9
standard proceeding.
Id
. The Agency further suggests that the relief sought by Ameren may
require a new generally rule applicable to sites such as Pond D.
Id
.
AMEREN’S REPLY
Authority to Apply Landfill Regulations to Pond D
In its reply, “Ameren maintains there is no authority for applying the landfill regulations
to the closure of Pond D.” Ameren Reply at 2. Ameren disputes the Agency’s argument that,
based on the definitions of “landfill” and “disposal,” the Board’s landfill regulations become
applicable to a unit such as Pond D when “the unit is to be closed with waste in place.”
Id
.;
see
35 Ill. Adm. Code 810.103 (definitions).
Ameren argues that, during the landfill rulemaking, the Board addressed the definition of
“landfill” and the types of units included within its terms. Ameren Reply at 3;
see
In the Matter
of: Development, Operating and Reporting Requirements for Non-Hazardous Waste Landfills,
R88-7. Ameren states that the Board’s Scientific/Technical Section (STS) noted that definitions
such as “landfill” and “disposal” arguably included a Land Treatment Unit (LTU) such as an ash
pond and thus brought LTUs within the scope of proposed landfill regulations. Ameren Reply at
3;
see
In the Matter of: Development, Operating and Reporting Requirements for Non-
Hazardous Waste Landfills, R88-7 (Mar. 13, 1990) (STS Response). Ameren emphasizes the
STS’s observation “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 of ‘landfill’ since the standards
being proposed pertain only to ‘landfills.’” Ameren Reply at 3-4 (emphasis in original), citing In
the Matter of: Development, Operating and Reporting Requirements for Non-Hazardous Waste
Landfills, R88-7, slip op. at 18, 37 (Mar. 13, 1990). Ameren also emphasizes the STS’s view
that, if the definition of “landfill” includes LTUs, then the scope and applicability provision
should clarify that “LTU’s or surface impoundments used for disposal can be considered
‘landfills’ subject to certain minimum groundwater protection standards in the landfill
regulations.” Ameren Reply at 4, citing35 Ill. Adm. Code 811.101; In the Matter of:
Development, Operating and Reporting Requirements for Non-Hazardous Waste Landfills
Ameren argues that, during the subsequent rulemaking filed by utilities, the Board also
considered whether to include ash ponds at closure in the landfill regulations. Ameren Reply at
4, citing
, R88-
7, slip op. at 36-37 (Mar. 13, 1990). Ameren argues that the Board addressed the STS’s response
in the landfill regulations by maintaining a distinction between landfills and LTUs. Ameren
Reply at 4.
Amendments to the Development, Operating and Reporting Requirements for Non-
Hazardous Waste Landfills: 35 Ill. Adm. Code 811 (Utility Group Amendments), R90-25.
Ameren argues that, during that rulemaking, the proponents claimed “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.” Ameren Reply at 5, citing Amendments to the
Development, Operating and Reporting Requirements for Non-Hazardous Waste Landfills: 35
Ill. Adm. Code 811 (Utility Group Amendments), R90-25 at 28-29 (Feb. 21, 1992) (transcript of
Jan. 27, 1992 hearing). Ameren claims that “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
10
not adopted by the Board in prior rulemakings. Such units simply are not meant to be included
under the landfill regulations.” Ameren Reply at 5.
Noting an apparent suggestion by the Agency that ash in Pond D could be moved to a
waste disposal unit, Ameren responds with two arguments. Ameren Reply at 5. First, Ameren
claims that a misreading of the definitions of “landfill” and “disposal” prevents the Agency from
recognizing “that Pond D can be a compliant waste disposal site even if closed under a set of
regulations other than the landfill rules.”
Id
., citing Agency Resp. at 2. Specifically, Ameren
argues that the definition of “landfill” explicitly excludes surface impoundments such as Pond D.
Ameren Reply at 5, citing 35 Ill. Adm. Code 810.103. Ameren further argues that, under these
definitions, Pond D can accumulate waste for disposal without becoming subject to landfill
regulations. Ameren Reply at 5. Second, Ameren claims that its petition considered removal
and off-site disposal of ash in Pond D and determined that it is neither economically reasonable
nor feasible.
Id
. at 6;
see
Pet. at 21-22 (Ash Removal and On vs. Off-Site Disposal).
Ameren also argues that the landfill regulations also do not require retrofitting units such
as Pond D. Ameren states that it built ash ponds such as Pond D to serve as final repositories of
coal combustion ash and that the Agency’s Bureau of Water permitted this use. Ameren Reply
at 6. While Ameren acknowledges that a surface impoundment can now be constructed
according to landfill standards, Ameren argues that “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 approval, is appropriate.”
Id
. at 6-7.
Finally, Ameren argues that the landfill regulations should not apply to Pond D because
the coal combustion by-product (CCB) in it differs from typical landfill waste. Ameren Reply at
7. Ameren further argues that those by-products “are independently defined under the Act and
have recognized beneficial uses under Illinois law.”
Id
., citing 415 ILCS 5/3.135 (defining “coal
combustion by-product”), 3.140 (defining “coal combustion waste”) (2006). Ameren suggests
that these factors distinguish Pond D from sites regulated as a landfill and justify a site-specific
rule.
Mechanism for Regulatory Relief
Ameren claims that there are numerous difficulties in applying landfill regulations to the
closure of Pond D. Ameren Reply at 7-8;
see generally
Pet. at 13-36 (Description of Efforts to
Comply). Ameren argues that these landfill regulations have “an entirely different scope and
intent than the water quality regulations.” Ameren Reply at 8. Noting the Agency’s focus on the
potential effect on the environment of closing Pond D, Ameren states that it “fully agrees that
closure and post-closure actions will be necessary and would be made part of a site-specific
rule.”
Id
. Ameren expresses the view that “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.”
Id.
at 9. Ameren argues that a site-specific rule amending the Board’s water
pollution permit regulations would both consider environmental impacts and include measures
that protect the environment.
Id
.
11
Specifically, “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 question.” Ameren Reply at 9. Ameren notes that its Statement of
Authority proposes a general outline of rules that might regulate ash ponds to protect human
health and the environment and address the Agency’s concerns.
Id.
citing Agency Resp. at 5;
see
Ameren Statement at 9-11 (proposed closure requirements). Specifically, Ameren states that
“[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.”
Id
.
Summary
Ameren urges that closing Pond D should be addressed by a site-specific rule amending
the Board’s water pollution regulations. Toward this end, Ameren first “asks the board to
determine whether a site-specific rulemaking from the water pollution permit requirements is the
most 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.” Ameren Reply at 10.
In its response to the Board’s order, the Agency has suggested that closing ash ponds
such as Pond D may best be addressed by a new class of generally-applicable rule. Should the
BOARD’S DISCUSSION AND CONCLUSION
Based on its review of the record, the Board finds that a site-specific rule is the
appropriate source of regulatory relief under which to close Ameren's Pond D. Accordingly, the
Board dismisses Ameren’s petition for an adjusted standard and closes this docket. Upon
receiving from Ameren a petition for site-specific rule addressing the closure of Pond D, the
Board will review it under applicable provisions of the Act and procedural rules.
See, e.g.
, 415
ILCS 5/27, 28 (2006); 35 Ill. Adm. Code Part 102.
Ameren argues that such a site-specific rule should amend the Board’s water pollution
regulations. The Board notes that Ameren expresses no intent to relocate the materials in Pond
D and in fact concludes that such relocation is both economically unreasonable and not feasible.
Ameren plainly intends to leave those materials in place in Pond D for disposal there. Ameren
has persuasively argued that Pond D accumulated waste for final disposal without automatically
becoming subject to the landfill regulations. Nonetheless, Ameren’s original petition proposed
requirements relating to cap and cover, groundwater monitoring, and a zone of attenuation that
relate more closely to the Board’s general land regulations regarding waste disposal.
Accordingly, the Board directs Ameren in any petition for a site-specific rule to propose an
amendment to the Board’s Subtitle G solid waste regulations.
12
Agency or any other person develop a proposal for such a rule, the Board envisions that it would
consider such a proposal as an addition to the Board’s Subtitle G waste disposal regulations.
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 March 5, 2009, by a vote of 5-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
