IN
    THE
    MATTER
    OF:
    PROPOSED
    RULES
    ESTABLISHING
    35
    ILL.
    ADM.
    CODE
    SUBCHAPTERS,
    PART
    840
    AND SUBPART
    A, SITE-SPECIFIC
    RULES
    PROVIDING
    FOR
    THE
    CLOSURE
    OF ASH
    POND AT THE
    HUTSONVILLE
    POWER
    STATION
    John T.
    Therriault, Clerk
    Illinois
    Pollution Control
    Board
    James
    R.
    Thompson
    Center
    Suite
    11-500
    100
    W. Randolph
    Chicago,
    Illinois 60601
    )
    )
    NOTICE
    Virginia
    Yang
    General
    Counsel
    Illinois
    Dept.
    of
    Natural
    Resources
    One Natural Resources
    Way
    Springfield,
    Illinois 62702-127
    1
    CLERK’S
    OFFICE
    JUN
    01200
    STATE
    OF
    ILLINOIS
    PUütj
    Control
    Board
    Matthew
    J.
    Dunn,
    Chief
    Office of the Attorney
    General
    Environmental
    Bureau,
    North
    69
    West
    Washington
    St., Suite 1800
    Chicago, Illinois
    60602
    Attached
    Service List
    Tim Fox,
    Hearing Officer
    Illinois
    Pollution Control
    Board
    James
    R. Thompson
    Center
    Suite
    11-500
    100
    W. Randolph
    Chicago,
    Illinois
    60601
    PLEASE
    TAKE NOTICE
    that I have
    today filed with the
    Office of
    the Clerk of the
    Illinois
    Pollution
    Control Board the
    Appearances of
    Kyle Nash Davis
    and
    H. Mark
    Wight
    and
    the Illinois
    Environmental
    Protection
    Agency’s Response
    to Motion for
    Expedited
    Review, copies of
    which are
    herewith
    served upon
    you.
    ILLINOIS ENVRONMEN’FAL
    PROTECTION
    AGENCY
    By:
    lit!q/+
    A1-
    Mark Wight
    Assistant
    Counsel
    Division
    of Legal Counsel
    DATE: May
    28, 2009
    1021 North
    Grand
    Avenue East
    P.O.
    Box
    19276
    Springfield,
    Illinois
    62794-9276
    (217) 782-5544
    BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    )
    )
    )
    )
    )
    )
    R09-21
    (Site-Specific
    Rulemaking
    — Land)
    THIS FILING
    SUBMITTED ON
    RECYCLED
    PAPER

    BEFORE
    THE
    POLLUTION
    CONTROL
    BOAR])
    CER°KF”RE
    OF
    THE
    STATE
    OF ILLINOIS
    CE
    JUN
    012009
    IN
    THE
    MATTER
    OF:
    )
    POllution
    PROPOSED
    RULES
    ESTABLISHING
    35
    ILL.
    )
    ADM.
    CODE
    SUECHAPTERS,
    PART
    840
    )
    R09-21
    AND SUBPART
    A,
    SITE-SPECIFIC
    RULES
    )
    (Site-Specific
    Rulemaking
    — Land)
    PROVIDING
    FOR
    THE CLOSURE
    OF
    ASH
    )
    POND AT
    THE
    HUTSONVILLE
    POWER
    )
    STATION
    )
    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.
    Respectfully
    submitted,
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    By
    Kyçhsl{Davis,
    qiire
    Ditision
    of Legal/Coi4isel
    Illiois EnvironrentaljProtection
    Agency
    1 02”Urth
    Graid
    Avdnue, East
    P.O.
    Box
    19276
    Springfield,
    Illinois
    62794-9276
    217/782-5544
    217/782-9143
    (TDD)
    Dated:
    May
    28,
    2009
    This filing
    submitted
    on recycled
    paper.

    BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOA
    JUN
    0
    20g9
    piTTE
    OF
    ILLINOIS
    IN THE
    MATTER
    OF:
    )
    Utio
    Controi
    Board
    )
    PROPOSED
    RULES
    ESTABLISHING
    35 ILL.
    )
    ADM.
    CODE SUBCHAPTERS,
    PART
    840
    )
    R09-21
    AND
    SUBPART
    A, SITE-SPECIFIC
    RULES
    )
    (Site-Specific
    Rulemaking
    - Land)
    PROVIDING
    FOR
    THE
    CLOSURE
    OF
    ASH
    )
    POND AT THE
    IIUTSONVILLE
    POWER
    )
    STATION
    )
    APPEARANCE
    I, the
    undersigned,
    hereby
    file
    my appearance
    in
    the above-titled
    proceeding
    on behalf of the Illinois
    Environmental
    Protection
    Agency.
    By:
    Mark
    J44AIJYk
    Wight
    iLL
    Assistant
    Counsel
    DATE:
    May28,
    2009
    H. Mark
    Wight
    Division
    of Legal Counsel
    Illinois
    Environmental
    Protection Agency
    1021
    North Grand
    Avenue
    East
    P.O.
    Box 19276
    Springfield,
    Illinois
    62794-9276
    (217) 782-5544
    Fax: (217) 782-9807
    THIS FILING IS
    SUBMITTED
    ON RECYCLED
    PAPER

    BEFORE
    THE
    POLLUTION
    CONTROL BOARD
    OF
    THE
    STATE
    OF
    ILLINOIS
    JUNü7
    IN
    THE MATTER OF:
    )
    J9
    )
    P,TTE0F
    ILIJNOIS
    PROPOSED
    RULES
    ESTABLISHING
    35 ILL.
    )
    UtICfl
    Controi
    5
    Or
    ADM.
    CODE SUBCHAPTERS, PART
    840
    )
    R09-21
    AND
    SUBPART A, SITE-SPECIFIC
    RULES
    )
    (Site-Specific Rulemaking — Land)
    PROVIDING
    FOR THE CLOSURE
    OF ASH
    )
    POND
    AT
    THE HUTSONVILLE POWER
    )
    STATION
    )
    RESPONSE TO
    MOTION
    FOR
    EXPEDITED REVIEW
    NOW COMES the ENVIRONMENTAL
    PROTECTION AGENCY of the State
    of
    Illinois
    (“Illinois
    EPA/Agency”),
    by its attorneys,
    Kyle Nash
    Davis and
    Mark Wight, and,
    pursuant to
    35
    Ill. Adm. Code 101.500 (2006),
    hereby submits this Response to Motion for
    Expedited
    Review
    (“Response”)in response
    to the Motion for Expedited
    Review filed by the
    Petitioner, AMEREN ENERGY GENERATING
    COMPANY (“AmerenIPetitioner”). In
    support
    of this
    Response, the Illinois EPA states
    as follows:
    1.
    On May
    19, 2009, Arneren
    filed its Petition with the Board
    for the above-
    captioned
    proceeding
    seeking to amend the Board’s waste rules
    by adding a new Part 840
    for the
    site-specific
    closure
    of certain surface impoundments for coal combustion
    waste
    (“CCW”). In
    particular, Ameren
    proposes
    35 Iii. Adm. Code 840.Subpart A to
    govern the closure of the
    unlined
    ash
    impoundment
    designated
    as “Pond D” at Arneren’s Hutsonville
    Power Station
    in
    Crawford
    County.
    The
    proposal includes
    a Motion for
    Expedited
    Review
    (“Motion”)
    pursuant
    to
    35 Ill.
    Adm. Code
    101.5
    12. The Illinois EPA
    received
    service
    of this pleading
    on May 21,
    2009.
    1

    2.
    In its
    Motion,
    Petitioner
    offers
    two
    reasons
    for expediting
    the
    proceeding:
    1)
    Ameren
    wishes
    to
    sell
    the
    Hutsonville
    facility,
    so the
    closure of
    the
    facility,
    or
    the certainty
    of the
    steps
    necessary
    to achieve
    closure,
    would
    make the
    facility
    more
    attractive
    to
    potential
    buyers;
    and 2)
    because”..,
    public
    and regulatory
    interest
    in
    ash
    ponds at
    coal-fired power
    plants
    has
    heightened
    nationwide,
    including
    in
    Illinois.”
    (Motion
    at 2,
    par 3
    and 4).
    In the
    Agency’s
    view,
    the
    first
    reason
    does
    not rise
    to the level
    of a material
    prejudice
    that would
    justif’
    accelerating
    the
    Board’s
    usual
    intention
    to
    proceed
    as soon
    as practicable,
    and
    thesecond
    reason
    is better
    interpreted
    as
    a reason
    why
    a more
    measured
    pace is in
    the public interest.
    In addition
    and
    as
    further
    set
    forth below,
    an expedited
    proceeding
    may
    prevent
    the
    Illinois EPA
    from providing
    the
    Board with
    the
    level
    of
    analysis
    that
    the Illinois
    EPA could
    otherwise
    provide
    if the matter
    proceeded
    under
    a
    standard
    rulemaking
    schedule.
    3.
    Petitioner
    generally
    states that
    it owns
    a
    facility it
    intends to
    sell and that
    such
    a
    fact should
    be
    a
    consideration
    in expedition
    of its Petition.
    (Motion
    at 2,
    par 3 and 4)
    Petitioner
    claims
    a
    “material
    hardship
    so long
    as
    the parameters
    under
    which it may
    close
    Ash
    Pond D
    are
    undecided.”
    (Motion
    at
    3, par
    7)
    Yet,
    if the desired
    regulatory
    certainty
    suggested
    within the
    above
    statement
    is
    to
    be
    considered,
    it
    would
    be noteworthy
    that expedited
    consideration
    is
    claimed
    upon the
    basis of providing
    for
    a more
    marketable
    plant.
    The
    Agency
    does not
    dispute
    this would
    be of benefit
    to
    Petitioner;
    however,
    a decision
    to offer
    the sale
    of its
    plant is,
    at
    best,
    a self-imposed
    hardship.
    The mere
    fact
    that
    a
    business
    intends
    to offer
    its
    facility”..,
    on
    the
    market
    for sale
    to
    reduce its costs
    . . .“ and
    place
    a
    waste
    disposal
    area”...
    in
    a
    better
    light to
    a
    potential
    buyer . . .“
    is not unique,
    by any
    means.
    Indeed,
    almost every
    Petitioner
    before
    the

    Board
    may
    claim similar
    facts when
    a sale
    is considered.
    Such
    events
    should
    not, by
    themselves,
    be
    dispositive
    of a request for expedited
    consideration.
    4.
    Other
    important
    considerations
    against expediting
    the proceeding
    include the
    public
    interest in conducting
    a
    proceeding
    that
    thoroughly
    and
    deliberately
    evaluates
    the proposal
    (which
    has implications
    extending
    beyond
    the
    Hutsonville
    facility)
    and Agency resource
    limitations.
    Matters
    of fact set forth below
    are stated
    on information
    and belief.
    5.
    On Thursday,
    March
    5, 2009,
    the
    Illinois
    Pollution Control
    Board (“Board”)
    issued
    its final
    order
    in the proceeding
    In the
    Matter ofi Petition
    ofAmeren Energy
    Generating
    Companyfor Adjusted
    Standards
    from
    35111.
    Adm.
    Code Parts 811, 814,
    815, PCB
    AS 09-1.
    The Board
    found
    that promulgation
    of a
    site-specific
    rule
    is a more appropriate
    way to
    govern
    the
    closure
    of ‘Pond D.”
    6.
    On
    Tuesday, March
    10, 2009,
    Ameren
    sent to
    the
    Illinois
    EPA
    via e-mail
    a draft
    ofproposed
    legislation
    that would be generally
    applicable
    to closures of
    CCW impoundments
    “when such facilities
    are nolonger operated
    pursuant
    to water pollution control
    permits
    issued
    by
    the Agency
    under
    applicable Board
    regulations.”
    By Friday, March
    13
    th,
    the Agency
    had
    hastily
    assembled
    a small workgroup
    representing
    the Bureaus of Water
    and Land and
    the Division
    of
    Legal
    Counsel
    to begin
    evaluating the
    proposal.
    The
    Agency had
    reason to believe the
    proposed
    legislation
    would
    be filed as
    soon
    as
    late March
    or early April.
    7.
    On
    Sunday,
    March 22, 2009, Ameren
    sent
    to
    the
    Agency
    via
    e-mail the
    Legislative
    Reference Bureau
    draft
    of the legislation.
    By Tuesday,
    March
    24
    th
    the Agency
    workgroup
    had identified
    a
    list of significant
    questions
    and
    concerns
    about
    the legislation in
    the
    event
    the draft proposal was
    introduced
    in the General
    Assembly.
    In addition
    to specific

    concerns,
    the
    two
    overarching
    concerns were:
    1) that such
    an important
    piece
    of
    environmental
    legislation
    would
    be rushed through
    the legislative
    process
    with
    little
    time for deliberation
    by the
    Agency and other
    interested
    parties, and
    2)
    that federal
    proposals
    on
    CCW
    matters would
    be
    forthcoming
    by
    the
    end of
    2009, the
    subsequent
    adoption
    of
    which might be
    necessary in Illinois
    to maintain delegated,
    authorized
    or approved
    federal
    programs.
    With regard to the
    latter,
    conflicting
    legislation
    would
    be a significant
    complication.
    8.
    Mid-afternoon
    on Wednesday,
    April
    8, 2009,
    Ameren sent to the
    Agency
    via e
    mail
    three
    documents,
    the generally
    applicable
    draft legislation, Ameren’
    s draft site-specific
    rule
    for the closure
    of Ash Pond
    D, and a “Summary
    Document
    presenting
    the
    underlying
    elements
    of
    the approach for
    the closure of Ash
    POnd
    D. . . as
    found in the draft rule.”
    The message
    reiterated that time
    was
    of the
    essence
    and that
    legislation would have
    to
    go forward
    within days
    if the “[Agency
    did
    not]
    believe we can
    work on developing a
    site-specific
    rule. . . .“
    9.
    On Thursday,
    April
    9, 2009, the Agency conveyed
    to Ameren
    via telephone
    message
    its
    preference
    to work
    on a site-specific rule
    rather than legislation.
    On or about
    April
    13
    th
    Ameren
    proposed
    a meeting
    at Agency headquarters
    in Springfield
    the following
    Thursday,
    April
    16
    th
    for the
    purpose
    of walking through
    its proposal and supporting
    documentation
    and
    receiving
    the
    Agency’s
    comments on the
    proposal.
    Because
    of insufficient
    time
    and
    prior
    commitments,
    the Agency
    could not
    accommodate
    this schedule,
    but a meeting was
    set
    for
    Tuesday afternoon,
    April
    21
    st
    The
    Agency’s list of comments
    on
    the
    proposal
    and supporting
    documentation
    was
    provided
    to Ameren
    on Friday, April
    17
    th,
    so Ameren
    could at least see the
    nature of
    the Agency’s
    concerns before the
    meeting. It was understood
    by
    both
    parties
    that the
    Agency’s
    comments
    were
    preliminary, not
    a “full critique.” The
    Agency
    reserved
    the right
    to
    4

    revise and extend
    its comments
    as
    the discussions
    evolved.
    It was
    further
    understood that
    Ameren
    had not yet
    ruled
    out proceeding
    with
    legislation.
    10.
    As
    a result of the exchange
    at
    the meeting, Ameren
    made
    revisions
    to its proposal.
    On
    Saturday, May 2, 2009,
    Ameren
    sent to the
    Agency via
    e-mail
    its
    revised
    proposal
    for a
    site-
    specific
    rule.
    The Agency
    was unable
    to divert resources
    to the
    task
    of accelerated
    review until
    May
    11
    th•
    On May
    15
    th,
    Ameren
    checked
    on
    the
    Agency’s
    progress via
    telephone, but
    the
    Agency had not
    yet compiled
    a list of comments.
    Ameren stated
    its
    intention to file
    the
    proposal
    with the Board
    the following week.
    11.
    On May
    19, 2009, Ameren
    called the Agency
    to see if comments
    were
    available
    and to confirm
    the filing of its
    site-specific proposal
    with the
    Board. Partial
    comments had
    been
    assembled
    but not reviewed
    by the full
    workgroup or management
    and were not ready
    for
    discussion.
    12..
    As the foregoing
    chronology
    demonstrates,
    the entire
    process since the Board’s
    decision
    in PCB AS
    09-1 has been driven
    by haste. The Agency
    does
    not fault Ameren
    for
    proceeding in
    the manner it believes
    best protects its interests
    nor does it mean
    to diminish
    the
    importance
    of
    those
    interests.
    Nonetheless, the Agency
    has repeatedly
    been
    placed in a
    reactive
    mode with little time
    to fully evaluate the
    proposal and its effects,
    much less
    for deliberation
    about
    how the
    proposal
    might be
    improved to the
    extent necessary.
    The Agency
    knew
    these
    circumstances
    were not conducive
    to
    the
    optimal
    outcome,
    but
    it nonetheless
    made
    a
    good faith
    attempt
    to participate and
    to identify
    and resolve
    as
    many
    issues
    as possible
    before the proposal
    was
    filed
    with the Board.
    The Agency
    did
    so not
    only because
    it agrees
    that a site-specific
    rule
    for
    closure
    and post-closure
    is
    appropriate
    for
    the
    Hutsonville
    ash
    pond,
    but also to head off
    the
    5

    legislative
    approach, which
    would have
    provided
    even
    less time
    for deliberation and
    was of even
    greater
    concern
    because of
    its general applicability.
    Further, if
    any
    issues
    could be
    resolved
    before
    submission
    to the
    Board,
    the
    rulemaking
    might
    be
    concluded more quickly
    for all
    concerned.
    Ultimately,
    the
    Agency’s
    capacity
    to respond did
    not
    meet
    Ameren’s expectations.
    There
    was no
    “meeting
    of the minds”
    on this proposal
    prior
    to its filing
    with the Board.
    11
    Now Ameren
    continues to
    push the
    pace
    by requesting expedited
    review by the
    Board.
    The Agency’s
    position
    is that this proposal
    is
    too important
    to rush. Because
    of
    significant
    source control
    and
    surface
    and groundwater
    contamination
    issues (on-
    and
    off-site),
    it
    is important
    that
    this
    proposal.be
    carefully and
    thoroughly considered
    in its own context.
    However,
    the importance
    of
    the proposal
    extends well beyond
    the
    Hutsonville
    facility. Amêren
    itself has acknowledged
    that it and
    its affiliated companies
    own seven
    other facilities with similar
    ash impoundments.
    PCB
    AS
    09-1 at 5.
    Moreover,
    “Ameren [has
    arguedj 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. The Agency
    expects
    that other
    companies,
    in
    addition to Ameren
    and its affiliates,
    also
    will use the results
    of this
    proceeding
    as
    a template for similar
    closures.
    In effect, the
    Board
    may well be
    developing what
    amounts to a
    regulatory
    program albeit in
    the context
    of
    a
    site
    specific
    rulemaking.
    Were the Agency the proponent
    of a rule with
    similar broad
    implications,
    preparations would
    begin
    far sooner
    than
    the ten
    weeks
    prior to filing with
    the Board
    the
    Agency
    was
    given to respond to
    Ameren’s proposed
    legislation
    and site-specific
    rule, and full
    and
    deliberate
    consideration
    still
    would
    be
    required
    during
    the hearing
    phase. As Ameren
    has
    noted
    in its
    Motion,
    coal ash impoundments
    are a
    complex,
    high profile matter
    of
    nationally-recognized
    importance.
    The Agency believes
    it is not in
    the public interest
    to accelerate
    this
    proceeding.
    6

    14.
    The timing
    is further
    complicated
    by the
    Agency’s limited
    capacity to
    respond
    to
    this
    proposal in the
    near
    term. Ameren
    cites In the Matter
    ofi City of
    Galva Site
    SpecUIc
    Water
    Quality
    Standard
    for Boron
    Discharges
    to
    Edwards
    River and Mud
    Creek,
    PCB
    R09-1 1
    (February
    5,
    2009)
    as an example
    of setting
    a
    site-specific
    proposal for First Notice
    without
    first
    considering
    the
    merits of the proposal.
    PCB
    R09-1 1 at 3. What
    is instructive
    is that the Board
    denies
    Galva’s
    motion for expedited
    consideration. The
    Board
    takes
    note
    of its
    workload
    of
    pressing
    cases
    and numerous
    rulemakings demanding
    immediate attention.
    The Board
    then
    states:
    Due to
    attrition; Board
    staffing
    is at its
    lowest
    levels in some years.
    Even if the
    Board
    were
    to accept that
    Galva’s claims
    amount
    to
    “material
    prejudice”,
    the
    Board’s
    limited
    resources in light of
    its current and future
    decision deadlines
    render the
    granting
    of a
    motion
    for expedited review
    unlikely in all
    but the most
    dire circumstances.
    Id.
    Similar resource
    limitations
    afflict
    certain functions of
    the
    Agency.
    Despite
    diminished
    resources,
    the
    Agency must respond
    to a
    multitude
    of statutory
    obligations and
    demands from
    parties
    each of
    whom also believes
    its interests
    are paramount and will
    be
    compromised
    if the
    Agency
    does not
    address them immediately.
    15.
    The Bureau of
    Land’s
    Permit
    Section
    Solid
    Waste
    Groundwater
    Assistance
    Unit,
    the workgroup responsible
    for
    assessing
    the
    effectiveness
    of Ameren’
    s
    groundwater monitoring,
    assessment
    and
    response
    provisions, is currently
    understaffed
    with no
    immediate prospect
    for
    hiring. Remaining
    employees
    average
    approximately
    40 projects
    per person, nearly
    doubling the
    average since
    2008.
    Most,
    if not
    all,
    of
    the projects
    are various
    forms of
    permit
    applications
    for
    waste
    management facilities
    (e.g.,
    initial
    applications,
    modifications)
    with statutory
    deadlines for
    7

    completion.
    Reviewers
    with
    expertise
    and
    experience
    in
    key
    areas
    afready
    are working
    overtime
    to
    complete
    reviews.
    16.
    The
    Toxicity
    Assessment
    Unit, the
    workgroup
    responsible
    for
    reviewing
    Ameren’s
    risk
    assessment
    document,
    will
    require
    at least
    30
    days
    and possibly
    as many
    as 60
    days
    to complete
    a
    review
    of that
    document,
    depending
    on
    a
    number
    of
    variables.
    17.
    Ameren
    states
    it “believes
    it
    has
    addressed
    most,
    if not
    all, of the
    Agency’s
    requests
    and
    has
    prepared
    this
    proposal
    and
    supporting
    technical
    documents
    to facilitate
    prompt
    review.”
    (Motion
    at
    2, par
    6) Ameren’s
    representation
    apparently
    is
    based
    on
    the revisions
    made
    following
    the discussion
    of the
    Agency’s
    preliminary
    comments
    on
    the
    first
    draft of the
    proposal.
    There have
    been
    no
    substantive
    discussions
    of
    the second
    draft, the one
    submitted
    to the Board.
    The
    Agency
    continues
    to have questions
    and
    significant
    reservations.
    To the
    extent the Agency
    has been
    able
    to
    assess
    the proposal,
    it
    has
    identified
    areas of concern
    including,
    but not
    limited
    to:
    Groundwater
    contamination
    monitoring,
    assessment
    and
    response:
    Several
    unclear,
    open-
    ended
    and/or
    inappropriate
    provisions;
    omissions
    such
    as
    no clear
    requirement
    to
    control
    public or
    private
    uses
    of contaminated
    off-site groundwater;
    Requirements
    for final
    slope
    and
    stabilization
    and final
    cover system;
    Time
    periods
    for initial
    implementation
    and compliance;
    Little
    or
    no
    Agency
    oversight
    or
    involvement
    where provisions
    propose
    the flexibility
    to
    establish
    or
    alter elements
    of
    the
    closure and
    post-closure
    plans,
    or,
    in
    the alternative,
    the
    proposal
    may
    be insufficiently
    prescriptive
    to
    support
    effective field
    inspections
    and
    enforcement
    for non-compliance.
    8

    18
    Some of these issues
    may
    require
    resolution before
    others can be addressed
    Further
    and as a part
    of its participation,
    the
    Agency’s preference
    would be
    to
    offer more than
    criticisms
    of the
    proposal with the expectation
    that
    Ameren
    would offer revisions until
    the
    proposal
    is
    deemed satisfactory. The
    more effective, but time consuming,
    method
    of
    participation would be for the Agency to identify
    satisfactory
    alternatives, consider amendments
    to
    the proposal or an
    alternative
    proposal
    to implement
    the
    alternatives, and prepare
    written
    testimony
    to
    convey all this to the Board and participants.
    In
    the
    end, it may be that the
    differences between Ameren and the Agency
    are not great, but
    there must be sufficient time to
    sort and
    resolve
    them. It also should be noted that Ameren
    and
    the Illinois EPA have expressed
    to each
    other a
    willingness to continue informal discussions to reduce or eliminate
    differences
    of
    opinion. This could be a
    constructive alternative
    to
    expediting the proceeding.
    19.
    The Agency’s concern is that an expedited hearing schedule will
    compromise
    the
    Agency’s capacity to
    fully identify, address and express its
    concerns
    and proposed solutions.
    This
    would
    constitute
    material prejudice
    to
    the Agency’s ability to fully participate in the
    proceeding. As of
    the preparation of this Response,
    the
    Agency cannot
    say precisely
    when
    it will
    be
    ready
    for
    hearing.
    It is
    currently considering whether resources outside the Bureau of Land
    may be diverted to
    assist in reviewing and
    responding to Ameren’s
    proposal. Assuming the
    Board
    accepts
    the
    proposal for hearing, the Agency
    expects it will
    be able to respond with more
    specific
    information in the
    hearing officer’s status call for establishing a hearing
    schedule.
    Further, setting
    the
    proposal
    for First Notice without
    comment
    on its merits still has the effect
    of
    starting the
    time
    clock and
    reducing the Board’s
    flexibility.
    The Agency believes this step
    should
    be delayed until
    the
    nature and extent of the issues
    are better
    understood.
    9

    WHEREFORE, the
    Illinois
    EPA respectfully
    requests
    that
    the Board DENY Petitioner’s
    Motion for
    Expedited
    Review
    Respectfully
    submitted,
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION AGENCY
    By:
    A4
    4
    Mark
    Wight
    /
    kL
    One of
    its attom
    CERTIFICATION
    STATEMENT
    V
    In
    accordance
    with
    35 Iii.
    Adm. Code
    101.504
    and
    under penalties
    as provided by law
    pursuant
    to Section
    1-109
    of the Code of Civil
    Procedure,
    the undersigned certifies
    that the statements
    set
    forth in
    this
    instrument
    are true and
    correct, except
    as
    to
    matters therein
    stated to be on
    V
    infOrmation
    and belief
    and as to such matters
    the undersigned
    certifies as aforesaid
    that he verily
    believes
    the same
    to be
    true.
    By:
    IJ&
    4kV
    Mark Wight
    /
    Dated:
    May 28,
    2009
    Kyle
    Nash Davis
    H. Mark
    Wight
    Division
    of Legal
    Counsel
    Illinois Environmental
    Protection
    Agency
    1021
    North
    Grand
    Avenue East
    P.O. Box
    19276
    Springfield,
    IL 62794-9276
    (217) 782-5544
    Fax: (217) 782-9807
    This filing
    submitted
    on recycled paper.
    in

    STATE OF
    ILLINOIS
    )
    COUNTY
    OF SANGAMON
    )
    )
    PROOF
    OF SERVICE
    I, the undersigned,
    on oath state
    that
    I have
    served
    the attached
    Appearances
    of
    Kyle
    Nash Davis
    and H.
    Mark
    Wight
    and
    the
    Illinois
    Environmental
    Protection
    Agency’s
    Response to
    Motion for
    Expedited
    Review
    upon
    the
    persons
    to
    whom
    they
    are
    directed,
    by
    placing
    a copy
    of each
    in
    an envelope addressed
    to:
    John
    T. Therriault, Clerk
    Illinois
    Pollution
    Control Board
    James R. Thompson
    Center
    Suite
    11-500
    100
    W. Randolph
    Chicago,
    Illinois
    60601
    (First
    Class Mail).
    Matthew
    J.
    Dunn, Chief
    Office of the Attorney
    General
    Environmental
    Bureau, North
    69
    West
    Washington St., Suite
    1800
    Chicago, Illinois
    60602
    (First
    Class
    Mail)
    This3O
    day of
    Notary
    Public
    Virginia
    Yang
    General
    Counsel
    Illinois Dept. of Natural
    Resources
    One Natural Resources
    Way
    Springfield,
    Illinois 62702-127 1
    (First Class
    Mail)
    Tim
    Fox, Hearing Officer
    Illinois
    Pollution
    Control
    Board
    James
    R. Thompson Center
    Suite
    11-500
    100
    W.
    Randolph
    Chicago, Illinois 60601
    (First Class
    Mail)
    ‘1
    t&/
    ,2009.
    -Nq/
    OFFICIAL
    SEAL
    BRENDA
    SOEHNER
    t
    NOTARV
    PUBLIC,
    STATE
    OF
    ILUMOLS
    S
    1
    MY
    COMMISSION
    EXPIRES
    11-3-2009
    (Attached
    Service List — First
    Class
    Mail)
    and
    mailing them from
    Springfield, Illinois
    on May
    affixed
    as indicated
    above.
    SUBSCRIBED AND
    SWORN TO BEFORE
    ME
    THIS
    FILING
    SUBMITTED ON RECYCLED
    PAPER

    Illinois
    Pollution
    Control
    Board
    Service
    List
    Service
    list
    for
    case
    R2009-02
    I
    arty
    Name
    arty
    Role
    ddress
    1
    ddress
    2
    City
    State
    ip
    hone
    ax
    erson
    itle
    arne
    IEPA
    espondent
    1021
    North
    Grand
    Avenue
    .0.
    Box
    19276
    Springfield
    L
    2794-9276
    17/782-55
    17/782-98
    *
    East
    4
    7
    EPA
    espondent
    1021
    North
    Grand
    Avenue
    .0.
    Box
    19276
    Springfield
    IL
    62794-9276
    217/782-55
    217/782-98
    John
    Kim
    General
    East
    4
    07
    Counsel
    ilinois
    terested
    One
    Natural
    Resources
    Way
    pringfield
    62702
    irginia
    epartment
    arty
    ang
    of
    Natural
    Resources
    Office
    of
    the
    Interested
    Environmental
    Bureau
    North
    69
    West
    Chicago
    IL
    60602
    312/814-25312814-23
    atthew
    J.
    Chief
    Itorney
    arty
    ashington
    Street,
    50
    7
    unn
    eneral
    Suite
    1800
    SchiffHardin,
    etitioner
    6600
    Sears
    Tower
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    hicago
    60606-6473
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    Cipriano
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    etitioner
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    Tower
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    South
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    60606-6473
    3
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    etitioner
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