BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
AMEREN ASH POND CLOSURE RULES
(HUTSONVILLE
POWER STATION)
PROPOSED: 35 ILL. ADM. CODE PART
840.101 AND 840.144
)
)
)
)
)
)
)
R09-21
(Rule making
- 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
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that we have today electronically filed with the Office of the Clerk of
the Pollution Control Board
AMEREN'S MOTION FOR LEAVE TO FILE REPLY IN
SUPPORT OF MOTION FOR EXPEDITED REVIEW and REPLY IN SUPPORT OF
MOTION FOR
EXPEDITED REVIEW,
copies of which are herewith served upon you.
Dated: June 3,
2009
Kathleen C. Bassi
Joshua
R. More
Amy Antoniolli
SCHIFF HARDIN, LLP
6600 Sears
Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Electronic Filing - Received, Clerk's Office, June 3, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In the Matter of:
)
)
AMEREN ASH POND CLOSURE RULES
)
R09-21
(HUTSONVILLE POWER STATION)
)
(Rulemaking - Land)
PROPOSED: 35 ILL. ADM. CODE PART
)
840.101 AND 840.144
)
AMEREN'S MOTION FOR LEAVE TO FILE REPLY
IN SUPPORT OF MOTION FOR EXPEDITED REVIEW
NOW COMES Proponent, Ameren Energy Generating Company ("Ameren") by and
through one of its attorneys, and in support of Ameren's Motion for Leave to File Reply in
Support for Expedited Review ("Reply"), states as follows:
1.
On May 19, 2009, Ameren filed its Petition with the Board for the above
captioned proceeding as well as a Motion for Expedited Review
("Motion") pursuant to 35 II.
Adm. Code § 101.512.
2.
On June 1, 2009, the Illinois Environmental Protection Agency ("Agency") filed a
Response to Motion for Expedited Review
("Response") requesting that the Board deny the
Motion.
3.
Under the Board's procedural rules, a moving party is not entitled to file a reply,
except as permitted
by the Board or Hearing Officer to prevent material prejudice. 35 Ill. Adm.
Code §
101.500(e).
4.
In its Response, the Agency mischaracterizes several items as set forth more fully
in the attached Reply. Therefore, it is imperative that the Board consider Ameren's Reply.
5.
As discussed in the attached Reply, Ameren has conversed with the Agency for
many years in its quest to identify the proper circumstances to close Ash
Pond D.
Electronic Filing - Received, Clerk's Office, June 3, 2009
6.
Neither the Agency nor the public would be prejudiced by the Board's granting of
Ameren's Motion for Expedited Review, but Ameren would suffer irreparable harm if the
Motion is not granted.
7.
Ameren respectfully requests leave to file the attached Reply with the Illinois
Pollution Control Board for consideration to prevent material prejudice that would result
if the
Response was allowed to stand containing such misrepresentations.
WHEREFORE, Ameren respectfully requests that the Board grant Ameren leave to file
its Reply to the Illinois Environmental Protection
Agency's Response to Motion for Expedited
Review, and accept the Reply.
Dated: June 3,
2009
Kathleen Bassi
Joshua
R. More
Amy Antoniolli
SCHIFF HARDIN LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
fax: 312-258-5600
CH2\7353863.!
2
Respectfull y submitted,
AMEREN ENERGY GENERATING
COMPANY
one of its attorneys
Electronic Filing - Received, Clerk's Office, June 3, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In the Matter of:
)
)
AMEREN ASH POND CLOSURE RULES
)
R09-21
(HUTSONVILLE POWER STATION)
)
(Rulemaking -
Land)
PROPOSED: 35 ILL. ADM. CODE PART
)
840.101 AND 840.144
)
REPL Y IN SUPPORT OF MOTION FOR EXPEDITED REVIEW
NOW COMES Petitioner, AMEREN ENERGY WHATEVER ("Ameren"), by and
through its attorneys,
SCHIFF HARDIN LLP, pursuant to WHAT, and replies to the Illinois
Environmental
Protection Agency's ("Agency") Response to Motion for Expedited Review
("Response") in this matter.
On May 19, 2008, Ameren filed with the Board its Petition in the above captioned
proceeding seeking to add a new
Part 840 to the Board's waste rules for the site-specific closure
of Ash Pond D located at its Hutsonville Power Station ("Ash Pond D"), including its Motion for
Expedited Review
("Motion") pursuant to 35 11. Adm. Code 10l.512. On June 1, 2009,
undersigned counsel for Ameren received service of the Response.
In its Response, the Agency suggests proceeding expeditiously would be contrary to the
public interest in conducting a proceeding that thoroughly and deliberately evaluates the proposal
and does not consider Agency resource limitations. While Ameren appreciates the Agency's
concerns, it believes that an expedited proceeding would not adversely impact the public's
interest, and the Agency's limited resources are a chronic problem that would not be solved
by
less than prompt review of this matter.
Electronic Filing - Received, Clerk's Office, June 3, 2009
Pursuant to Section 28 of the Illinois Environmental Protection Act ("Act") and Sections
102.604 through 102.608 of the Board's procedural rules, a hearing will be held in the vicinity of
the Hutsonville Power Station regardless of whether the Board grants expedited review. The
Board must provide at least 20 days' notice of the hearing, again, regardless of expedited review.
35 Ill.Adm.Code §
102.604. Finally, the Board must allow for a 45-day public comment period
prior to second notice. 35 Ill.Adm.Code §
102.608. During this entire process, the Agency, the
Board, and the public have sufficient time to thoroughly and deliberately evaluate the rule, as
provided
by the Board's regulations.
As discussed in the Statement of Reasons, existing regulations addressing waste, waste
hauling, and landfills at
Parts 700 through 849 (nonconsecutive) of the Board's rules do not
sufficiently address the closure
of surface impoundments, in particular, ash ponds used as water
treatment facilities in connection with the management
of coal combustion waste associated with
coal-fired power plants. Ameren has been engaged in consultation, on an intermittent basis, for
many years. Ameren's experts made presentations summarizing the underlying technical data,
groundwater analysis and site conditions. Ameren has provided draft petitions for relief and
solicited Agency feedback. As it is critical for Ameren to define applicable closure standards,
Ameren filed in August
2008, its proposal for adjusted standard to the landfill regulations to
provide for closure
of Ash Pond D at the Hutsonville Power Station.
Petition of Ameren Energy
Generating Company
for Adjusted Standards from
35
Ill. Adm. Code
811, 814,
and 815
(Hutsonville
Power Station),
AS 09-1 ("Ameren Hutsonville AS"). The Board, however,
determined that a site-specific rule is the appropriate mechanism under which Ameren should
close Ash
Pond D.
Ameren Hutsonville AS,
AS 09-1, slip op. at
11
(Mar. 5, 2009).
2
Electronic Filing - Received, Clerk's Office, June 3, 2009
While the fonn of the requested relief has changed, the underlying substance has not.
Since discontinuing its use of Ash Pond D in 2000, Ameren has been discussing the appropriate
regulatory mechanism for closure with the Agency. During those discussions, Ameren provided
the Agency with virtually all
of the documents that comprise the Technical Support Document.
The proposal is on the Board's June 4,
2009, agenda. If the Board grants Ameren's
Motion and adopts the rule for first notice publication in the Illinois Register at the June 4,
2009,
Board meeting, the hearing will not occur before the end of June - at least 30 days after Ameren
filed the proposal and more than
10 months after Ameren filed AS 09-1. Even so, Ameren
would not object to the Board setting the hearing for the end
of July 2009, which would give the
Agency the requested
60 days to complete its review of the risk assessment.
See
Paragraph 16 of
the Response. Ameren has repeatedly advised the Agency that it would make available its
technical experts in order to facilitate its review.
Contrary to the Agency's claims that this rulemaking proceeds
"in haste", the issues in
this proposal are not new to the Agency or materially different than what has been discussed by
the participants for years. Ameren simply can no longer afford to continue to accommodate the
Agency's desired schedule through seemingly never-ending negotiations. . While this
rulemaking is certainly novel in its application
to the proper closure of Ash Pond D, the
Company has acted prudently in aggressively promoting the need for regulatory clarity. Ameren
has offered the plant for sale, and public and regulatory interest in ash ponds at coal-fired power
plants has heightened nationwide, including in Illinois. For all
of these reasons, a timely
resolution to this matter is warranted.
3
Electronic Filing - Received, Clerk's Office, June 3, 2009
WHEREFORE, for the reasons set forth above and in its Motion, Ameren respectfully
requests that the Board accept this proposed rulemaking and adopt it for first notice publication
in the Illinois Register as soon as possible and that it set a hearing and move toward adopting a
final rule expeditiously.
Dated: June
3, 2009
Kathleen Bassi
Joshua
R. More
Amy Antoniolli
SCHIFF HARDIN LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
fax: 312-258-5600
CH2\734850 1.2
Respectfully submitted,
AMEREN ENERGY GENERATING
COMPANY
bY:9L~e~
4
Electronic Filing - Received, Clerk's Office, June 3, 2009
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 3
rd
day of June, 2009, I have served electronically
the attached
AMEREN'S MOTION FOR
LEAVE TO FILE REPLY IN SUPPORT OF
MOTION FOR EXPEDITED REVIEW and
REPLY IN SUPPORT OF MOTION FOR
EXPEDITED REVIEW
upon the following persons:
John Therriault, Assistant Clerk
Illinois
Pollution Control Board
James
R. Thompson Center
Suite 11-500
100
West Randolph
Chicago, Illinois
60601
and by first class mail, postage affixed, to the persons on the
ATTACHED SERVICE LIST.
Kathleen C. Bassi
Joshua
R. More
Amy Antoniolli
SCHIFF HARDIN,
LLP
6600 Sears
Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
/
Joshua R. More
Electronic Filing - Received, Clerk's Office, June 3, 2009
Matthew J. Dunn, Chief
Office of the Attorney General
Environmental Bureau, North
69 West Washington Street, Suite
1800
Chicago, Illinois 60602
Tim Fox, Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center
Suite
11-500
100
West Randolph
Chicago, Illinois
60601
SERVICE
LIST
(R09-21)
Kyle Nash Davis, Assistant Counsel
Mark Wight, Assistant Counsel
John Kim, General Counsel
Illinois Environmental
Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Virginia Yang
General Counsel
Illinois Dept.
of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Electronic Filing - Received, Clerk's Office, June 3, 2009
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