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 ADDITIONAL
PUBLIC COMMENT,
copies of which are herewith served upon you.
Joshua
R. More
Dated: November 10, 2009
Kathleen
C. Bassi
Joshua
R. More
Amy Antoniolli
SCHIFF HARDIN, LLP
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In the Matter of:
)
)
AMEREN ASH POND CLOSURE RULES
)
R09-21
(HUTSONVILLE POWER STATION)
)
(Rule
making - Land)
PROPOSED: 35 ILL. ADM. CODE PART
)
840.101 AND 840.144
)
AMEREN'S MOTION FOR LEAVE TO FILE ADDITIONAL PUBLIC COMMENT
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 An Additional
Public Comment, states
as follows:
1.
On October 30, 2009, Prairie Rivers Network ("PRN"), in conformance with the
October
9, 2009 Hearing Officer Order, filed a public comment in opposition to the joint
proposed site-specific rule filed
by the Illinois Environmental Protection Agency and Ameren on
September 22, 2009.
2.
The pre-first notice public comment period ended October 31, 2009.
3.
Under the Illinois Pollution Control Board's ("Board") procedural rules, a party is
not entitled to file an untimely comment, except as permitted by the Board or Hearing Officer to
prevent material prejudice.
35 Ill. Adm. Code § 102.108(d).
4.
PRN's public comment misconstrues or mischaracterizes several facts relating to
the technical justification and environmental impact
of the proposed site-specific rule and alleges
that Ameren has not met its burden
of proof in this matter. Therefore, Ameren respectfully
requests the Board consider Ameren's additional public comment, attached hereto, prior to first
notice.
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
5.
Ameren seeks leave to file the attached additional public comment with the Board
for consideration to prevent material prejudice that would result
if PRN's public comment was
allowed to stand containing such allegations and misrepresentations.
WHEREFORE, Ameren respectfully requests that the Illinois Pollution Control Board
grant Ameren leave to file its Additional Comment, and accept the Additional Comment.
Dated: November
10, 2009
Kathleen Bassi
Joshua
R. More
Amy Antoniolli
SCHIFF HARDIN LLP
233 South Wacker Drive, Suite
6600
Chicago, Illinois 60606
312-258-5500
fax: 312-258-5600
2
Respectfull y submitted,
AMEREN ENERGY GENERATING
COMPANY
one
of its attorneys
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
AMEREN ASH POND CLOSURE RULES
(HUTSONVILLE POWER STATION) :
PROPOSED 35 ILL. ADM. CODE 840.101
THROUGH 840.144
)
)
)
)
)
)
R09-21
(Rulemaking - Land)
AMEREN ENERGY GENERATING COMPANY'S ADDITIONAL
POST-HEARING COMMENTS
NOW COMES Ameren Energy Generating Company ("Ameren" or "the Company"),
by
and through its attorneys, SCHIFF HARDIN LLP, and respectfully submits the following
additional post hearing comment in the above-entitled matter to the Illinois Pollution Control
Board ("Board") to address some
of the assertions set forth in the public comment filed by the
Prairie Rivers Network ("PRN") on October 30, 2009 ("PC#3"). Ameren appreciates this
opportunity to supplement its testimony already filed in this matter and presented during the
public hearing held on September 29, 2009.
PRN implies that Ameren misled its neighbor to the south
of the Hutsonville Power
Plant, Mrs. Margaret
R. DeMent, with respect to the extent of contamination on her property and
the limits
of the agreed-to use restriction. In response to PRN's public comment, Ameren
contacted Mrs. DeMent to confirm that she was comfortable with Ameren's actions and
representations with respect to this matter. Attached as Exhibit A is a letter Ameren sent to PRN
and Mrs. DeMent in response to the inaccurate inferences set forth in
PRN's public comment.
Next, PRN alleges that Ameren did not use readily available information in developing a
groundwater cleanup plan and in modeling potential scenarios. Regretfully, the series
of
questions PRN poses regarding the neighboring irrigation wells is based on assumptions that did
not involve a close or detailed review
of the evidence of record.
PRN's arguments
3
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
not involve a close or detailed reVIew of the evidence of record.
PRN's arguments
mischaracterize the record for two primary reasons. First, PRN states Ameren has failed to meet
its burden to describe the area affected
by the proposed rule, asking if Ameren was aware of the
irrigation wells on neighboring property. PC#3
at 2. The irrigation well closest to the Ameren
property was documented on various figures, including cross-sections and flow maps, in the
April 2009 closure alternatives analysis report. TSD Ch.
5, pp 31-48. In addition, as set forth in
Appendix H
of Chapter 7 of the TSD, Ameren performed a search of the Illinois State
Geological Survey IL WATER database which identified six wells within one-half mile
of Ash
Pond
D. Two of the wells are the plant production wells, and the other four are irrigation wells
utilized by adjacent property owners.
See
TSD, Ch. 7, pp. 482-484;
see also,
TSD, Ch. 7, p. 200.
Therefore, contrary to the assertion, Ameren did adequately describe the area affected by the
proposed rule.
Second, PRN states this information does not appear to have been included in the
assumptions and data input for the modeling
of the design and operation of the groundwater
collection trench to mitigate off-site impacts. PRN is correct that Ameren's consultant did not
account for irrigation or plant wells in the modeling. This is because the upper zone
of the
underlying aquifer was modeled, while the irrigation and plant wells are finished in the lower
zone
of the underlying aquifer. The lower zone of the aquifer both on and off-site complies with
water quality standards. The modeling performed was consistent with modeling regularly used
for landfill settings and was found to be sufficient by the Illinois Environmental Protection
Agency.
See e.g.,
Sept. 29, 2009 hearing transcript at 30-32. Because the data suggests that
withdrawals in the lower zone
of the underlying aquifer do not impact flow in the shallow zone,
4
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
Tr. at 89-91, there was no need to consider the plant production wells or the irrigation wells in
the modeling.
Finally, the public comment states that the Board cannot adopt regulations inconsistent
with federal law, suggesting that Ameren is "attempting an end run around anti-degredation
requirements." That statement could not be further from the truth,
as discussed at the hearing
and
as set forth in the proposed rule, Ameren will seek a modification to its existing NPDES
permit to discharge the groundwater collected in the proposed groundwater collection trench. As
PRN, the Illinois Environmental Protection Agency and the Board are all well aware, the
modification
of an NPDES permit results in the re-opening of the permit allowing for public
participation and for the Illinois Environmental Protection Agency to perform appropriate anti-
degredation analysis at that time.
Dated: November
10, 2009
Kathleen Bassi
Joshua
R. More
Amy Antoniolli
SCHIFF HARDIN
LLP
233 South Wacker Drive, Suite 6600
Chicago, Illinois 60606
312-258-5500
fax: 312-258-5600
CH2\7353863.!
Respectfull y submitted,
AMEREN ENERGY GENERATING
COMPANY
by:
L~(?
<:L-
one of its attorneys
5
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
Exhibit A
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
Nov. 3, 2009
Glynnis Conins, Executive Director
Prairie Rivers Network
1902 Fox Drive, Suite G
Champaign, IL 61820
Dear Ms. Collins:
One Ameren Plaza
tHOl Chouteau Avenue
PO Box (1614H
SL
Louis, 'MO
G:316f).614B
314.621.3222
We were particularly concerned about Prairie Rivers Network's apparent
attempt to mislead the Illinois Pollution Control Board, the Illinois
Environmental Protection
Agency and the public through the public
comments filed by Traci Barkley on behalf of PRN. While we certainly
understand that PRN may differ from Ameren on certain issues, we were
stunned and disheartened by the implication that we have misled our
neighbor to the south of Hutsonville Plant - Mrs. Margaret R. DeMent.
As
we reached out to discuss this project with Ms. Barkley, we also
reached out to Mrs. DeMent on several occasions.
As a result of the
filing of these comments, we felt it necessary to discuss with Mrs.
DeMent the statements made in the Oct. 30 PRN filing. In the
statements contained in
the filed comments, we discovered
misimpressions as
to Mrs. DeMent's perspective on a number of points:
•
Mrs. DeMent has
never requested that her wells be tested; however,
we assured her we stand ready to test those wells at any time she so
requests.
•
In addition, we would share any sampling results with Mrs.
DeMent
that she requests. We wish to highlight, though. that we did share all
the information with Traci BarkleYl and the information was also
included in
our filing with the Illinois Pollution Control Board.
We value our relationship with our neighbor and have worked hard to
establish an open line of communication with her. Ameren has not, and
is not, hiding any information
from Mrs. DeMent and to imply that we are
hiding information in a publicly filed document, without any support for
such a serious accusation, is more than troubling. In addition, as you
are aware from the testimony
and materials provided, there is no
evidence that
water quality standards are exceeded in the aquifer in
which Mrs. DeMent's'irrigation wells
are located. In fact, deep wells on
our property within a short distance of Mrs. DeMent's wells have
consistently complied with
water quality standards. Mrs. DeMent has
advised us, and Ms. Barkley, that
her land has produced the same
amount of crops the last several years, in stark contrast to the
misimpressions contained in PRN's public comments.
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
(2)
Again; to imply the contrary in a publicly filed document without support
is more than unfortunate.
Lastly, the filing includes
an allegation that we are "attempting an end
run around anti-degradation requirements." This
is a clear and knowing
distortion
of the facts. PRN is well aware that before we can discharge
water into the Wabash River, we must apply for a modification
to our
existing NPDES permit. This requirement
is clearly stated in our
proposed rule. PRN is also
wen aware that at that time under state law,
PRN can review the application, comment
on the application and ask for
a public hearing. Indeed, the full public process is afforded to those who
wish to participate. It
is inappropriate to charge us with circumventing
the process when the process has not even begun.
In addition. there is
no evidence that our company has
ever
circumvented permitting
processes.
In fact, quite to contrary, we have taken the lead in trying to
close the Hutsonville ash pond
in a way that offers a model for other
utility companies and
in the absence of any clear regulatory guidance.
In an hour-long call with Ms. Barkley, we outlined our proactive efforts to
close the pond, beneficially use ash and establish effective ash pond
management approaches.
In a PRN newsletter, your organization
advocates for safe management of existing and future ash ponds. That
is what we are trying to accomplish with this filing.
We would like to continue to work to foster a constructive dialogue with
PRN; however, we needed to set the record straight on the incorrect and
misleading impressions that the filing perpetuated.
Sincerely
,)
..'
.
/
.c:?-
~--
/~
{L-
/ Susan Gallagher, .
Director, Corporate Communications. Ameren Corporation
Cc: Traci Barkley, water resources sCientist, Prairie Rivers Network
Mark Wight, assistant counsel, Illinois Environmental Protection Agency
Margaret
R. DeMent
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 10
th
day of November, 2009, I have served
electronically the attached
AMEREN'S MOTION FOR LEAVE TO FILE ADDITIONAL
PUBLIC COMMENT 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
Tim Fox, Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Mark Wight, Assistant Counsel
Kyle Nash Davis, Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
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
233 South Wacker Drive
Chicago, Illinois
60606
312-258-5500
~l20---
Joshua R. More
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
SERVICE LIST
(R09-21)
Matthew J. Dunn, Chief
Virginia Yang
Office
of the Attorney General
General Counsel
Environmental Bureau, North
Illinois Dept.
of Natural Resources
69 West Washington Street, Suite 1800
One Natural Resources Way
Chicago, Illinois 60602
Springfield, Illinois 62702-1271
Tracy Barkley
Prairie Rivers Network
1902 Fox Drive, Suite G
Champaign, IL 61820
Electronic Filing - Received, Clerk's Office, November 10, 2009
* * * * * PC # 5 * * * * *
