Case Number: 12-0544

  • November 30, 2012

    My question is about FutureGen 2.0.Will you rule to make Ameren and ComEd purchase power from the Meredosia facility?This area desperately needs these green jobs we were promised,and i beg you to consider this as critical for downstate economic survival.Ameren has shown no mercy twords the consumer in recent years,so with money they have saved in closing the Meredosia plant they can afford to purchase a few megawatts from FutureGen.They had the chance to invest in this cutting edge technology,yet selfishly chose to withdraw rather than put Illinoians back to work mining Ilinois coal,retrofitting unit four at Meredosia,and countless other Illinois jobs.
    Please rule in favor of the people in this matter.

    Chad j Simpson
  • November 9, 2012

    Part 4 of 5 by Elizabeth Niemann- Public Comment continuation on 12-0544 with respect to Governmental Autorizations in Section 5 of FutureGen’s Power Sourcing Agreement:

    5. I believe Paragraph 10.3 should read:
    10.3. Governmental Authorizations. Prior to construction and commencing operation, the Seller shall identify, secure, and maintain all Governmental Authorizations necessary to construct, operate and maintain the Project and the Carbon Transportation and Storage Project in accordance with its obligations under this agreement in keeping with applicable law, and shall pay its respective charges and fees in connection therewith. There shall be no waivers to this effect.

    a. There should be no “ifs, ands, or buts” as to obtaining and maintaining the proper permits for the both the generating as well as the transportation and storage for FutureGen believes that you can’t have one without the other.
    b. I believe that if FutureGen cannot obey “Applicable Laws”, i.e. Illinois Laws and Federal laws, as to permitting, then it should not be allowed to do business in the State of Illinois. It should not be able to hide under the respect guise of from Paragraph 1.1:
    ““Commercially Reasonable” or “Commercially Reasonable Efforts” means, with to any decision or other action made, attempted or taken by a Party, those efforts that a reasonably prudent business would undertake for the protection of its own interests under the conditions affecting that decision or other action including with respect to Project design and operation, electric system safety, the amount of notice of the need to take a particular action, the duration and type of the action, and the commercial and regulatory environment in which such decision or other action occurs. Commercially Reasonable or Commercially Reasonable Efforts will be reviewed and determined based upon the facts and circumstances known, or which could have been known with the exercise of reasonable efforts, at the time that an action is taken and will not be based upon a retroactive review by a Party or any tribunal of what would have been optimal at that time.” Where are the ‘interests” of the following:
    i. Health and Welfare of Workers and Employees under OSHA
    ii. Landowners who have been impacted by FutureGen
    iii. Health and Welfare of Morgan County Citizens
    iv. The Environment: Atmospheric, Surface and Subsurface
    c. Will FutureGen follow ANSI/AIHA Z10-2012 standards for
    Occupational Health and Safety management Systems under its “Commercially Reasonable” or “Commercially Reasonable Efforts” of operation?
    d. I also believe that FutureGen should be mandated to secure all permits as required by both state and federal regulations and should not be exempt from any nor just only show that FutureGen has applied for permits under the guise of ‘Commercially Reasonable…” They should secure all the permits before any action is performed and agreements signed.
    e. If either the seller or the buyer waives the condition listed in paragraph 3.1.a.(i.) or 3.2.a.(i) which references Exhibit 3.1(a)(i), the State of Illinois, its citizens and taxpayers, ratepayers will be left without some form of governmental oversight. This is totally unacceptable in my opinion. The SOURCING AGREEMENT offers no other oversight.
    f. Oxy-Combustion and Carbon Capture is a new untested process for the power plant and as such for the safety of Illinois citizens and taxpayers, this new process should be closely scrutinized by the Governing Authorities meaning all permits must be in hand by FutureGen before operations begin.
    g. The reason we have the Kyoto Accord, the global warming and climate change debacle and other problems - even with environmental interest since the 1970’s - IS because corporations, companies and such have done what is good for the bottom line and not what is good for the environment. IF this is to be SO good for climate change, then why break the rules and not have permits in hand before construction?
    If FutureGen cannot agree to this, they are in the wrong business in my opinion.

    Elizabeth Niemann
  • November 7, 2012

    Part 5 - Public Comment Summary on 12-0544 FutureGen’s Power Sourcing Agreement:

    I believe that the Power Sourcing Agreement between FutureGen Industrial Alliance, Inc. and Buyer, is for 2013 incomplete. I believe that FutureGen’s inclusion document submitted as written in the IPA’s 2013 Electricity Procurement Plan is premature due to lack of an ROD by the DOE and is inefficient use of time and resources of the ICC at this particular time. I also feel that the IPA or the ICC should have the FutureGen’s Sourcing Agreementreviewed as to its legality by an independent legal counsel or the State Attorney to protect the citizens of Illinois.

    FutureGen has failed to identify and list all the Governmental Authorizations or permitting mandated by both Illinois and Federal statues for both the “Project” and “the Transportation and Storage Project” aspects. The waiver clauses in Paragraph 3 provide no assurance of governmental oversight when in fact these clauses in effect grant that no governmental authorizations would be required IF either the buyer, seller, or both decide to grant waivers for the Government Authorizations in Exhibit 3.1(a)(i).

    FutureGen may use one governmental authority’s, the ICC, implied approval to circumvent other governmental authorities permitting and authorization requirements. It has already tried to circumvent Governmental Authorization. This should not be allowed. It is not in the jurisdiction of the IPA and the ICC to approve a document that violates State and Federal mandates or grant approvals for waivers under other Governmental Authorities’ jurisdictions.

    When FutureGen 2.0 was recreated, the DOE specified the oxy-combustion method was to be used for retrofitting the Ameren unit to receive Recovery Funding. This method comes with a high energy penalty, increase plant water usage, an increase in coal demand with the corresponding increase in slag production, and an increased for potential harm to land and water. All of these, besides the increase cost of the retrofit, will add to the cost of power generation at the Meredosia Plant along with the increase due to transportation and storage costs as well as the permitting aspect. FutureGen cannot expect to receive the entire rate cap on rates to consumers to recoup their costs for scope of their entire project. For what? For a reduction in the atmospheric CO2 of 0.0004 to 0.0006 ppm per year for 30 years and to create 700 to 1000 temporary construction jobs and 100 to 125 permanent jobs over the 30 year life span of the project. (Humphrey Affidavit page 6) The end result or payback is not justified by the expense, the damage to the subsurface layers of the earth, not to mention the upsetting of Morgan County landowners.

    Given the number of cost unknowns, is the ICC and the State of Illinois taking a risk with Illinois tax dollars by approving the IPA’s 2013 Power Procurement Plan submission which includes FutureGen’s submitted PSA which, in my opinion, some clauses violate State and Federal mandates?

    In conclusion, looking at the alternatives, plants retrofitted with natural gas as fuel, run cleaner, burn more efficiently, provide less harm to the atmosphere, and not require a disruption to Illinois farmland with a pipeline and sequestration. It has already been documented that with the switch to natural gas, the CO2 emissions have gone down appreciably. With natural gas, power plants can produce electricity cheaper, use less natural resources, is more energy efficient, produces less CO2 emissions thereby producing cheaper electricity for the rate payer requiring less amount of the cap which can be made available for other power projects.

    Futhermore, why sequester the CO2 when there are several US States looking for CO2 to be used for Enhanced Oil Recovery. FutureGen could sell the CO2 to these states to offset construction and operating costs rather than sequester it under Illinois’s breadbasket farmland.

    Each commissioner should ask himself if he, as an individual, would sign a purchase agreement without all details, contains clauses which may violate State and Federal mandates, and offers little environmental and job creation“payback” for such a costly expense. Would each commissioner trust a corporation with no operational history?

    I believe it is the duty of the ICC to exercise due diligence when it comes to this new technology as stewards of Illinois tax dollars and energy consumers when approving FutureGen’s Sourcing Agreement inclusion in the
    the 2013 Power Procurement Plan.

    Elizabeth Niemann
  • November 7, 2012

    Part 3 of 5 by Elizabeth Niemann - Public Comment on 12-0544 FutureGen Power Sourcing Agreement with respect to Exhibit 3.1(a)(i)

    4. I believe the Exhibit 3.1(a)(i) referenced in section 3 of the Sourcing Agreement is incomplete. With the Transportation and Storage included in the cost of the project, the Exhibit 3.1(a)(i) should also include the Governmental Authorizations associated with Transportation and Storage aspect so Exhibit 3.1(a)(i) should now read:

    Exhibit 3.1(a)(i)
    Governmental Authorizations
    For purposes of this agreement, the “Governmental Authorizations” are:

    Project:

    1. Record of Decision by the Department of Energy
    1.2. Air Pollution Control Permits (construction and operating), to be issued by the Illinois Environmental Protection Agency.
    2.3. NPDES Construction Permit, to be issued by the Illinois Environmental Protection Agency .
    3.4. Construction Permit under Rivers and Harbors Act § 10, and Clean Water Act § 404, to be issued by the U.S. Army Corps of Engineers.
    5. NPDES Operation Permit, to be issued by the Illinois Environmental Protection Agency.
    4. Prevention of Significant Deterioration (PSD) permitting from the Illinois Environmental Protection Agency

    Transportation and Storage Project:

    1. CO2 Pipeline Permit from the Pipeline and Hazardous Materials Safety Administration, Office of Hazardous Materials Approvals under the Department of Transportation.
    2. Permits required by the Army Corps of Engineers
    3. An agreement with the Illinois Department of Agriculture that governs the mitigation of agricultural impacts.
    4. Pipeline approval from Illinois Commerce Commission
    5. UIC Class VI Well Permit from the US Environmental Protection Agency Region 5.
    6. MISO Interconnection

    Elizabeth Niemann
  • November 7, 2012

    Part 2 of 5 parts by Elizabeth Niemann -
    Comments on FutureGen’s Sourcing Agreement with respect to Section 3. Conditions Precedent.

    3. Based upon past FutureGen tactics (see subparagraph “e.” below, I believe FutureGen may twist the Power Sourcing Agreement’s Section 3 {paragraphs 3.1.a.(vi), 3.1.b, and 3.2.b} by virtue of implied IPA Power Sourcing Agreement approval (and also IF the ICC approves the Power Sourcing Agreement as Section 3 is written) for FutureGen’s benefit and not the benefit of Illinois citizens. To the layman, these paragraphs read as though FutureGen or a buyer may waive (refrain from enforcing or applying) the governmental authorizations mandated by State and Federal laws and regulations. Paragraphs paragraphs 3.1.a.(vi), 3.1.b, and 3.2.b should be rewritten so there is clarity and with NO PROVISIONS for waivers.

    a. For example, Section 3 of the Power Sourcing Agreement reads:
    “3. Conditions Precedent.
    3.1. Conditions Precedent to Obligations of Buyer.
    (a) The following are conditions precedent to the obligations of Buyer under this agreement:
    (i) Seller has obtained all Governmental Authorizations set forth in Exhibit 3.1(a)(i) required for the construction, ownership, operation and maintenance of the Project;
    (ii…
    …(vi) the conditions in section 3.2 have been satisfied or waived; and
    (b) The conditions precedent in this section 3.1 are for the benefit of Buyer, and Buyer may waive any or all of these conditions.”

    The conditions in paragraph 3.1 are, as the sourcing agreement states, for the benefit of the buyer and Exhibit 3.1(a)(i) contains a list of the Governmental Authorizations for the “Project” which are mandated by Illinois and Federal statutes required for operation. Paragraph 3.1.b states that the buyer may waive any or all of these conditions.

    b. This same consistent waiver reference (Paragraph 3.1.b) also occurs in the following 3.2.b paragraph with the seller used instead of buyer and it is still not within the power of the seller to waive the Governmental Authorizations in Exhibit 3.1(a)(i).

    “3.2. Conditions Precedent to Obligations of Seller.
    (a) The following are conditions precedent to the obligations of Seller to sell and deliver Net Energy under this agreement:
    (i) Seller has obtained all Governmental Authorizations set forth in Exhibit 3.1(a)(i) required for the construction, ownership, operation and maintenance of the Project;
    (ii) the Department has authorized funding for Phase III of each of Seller’s Cooperative Agreements in a form reasonably satisfactory to Seller, and Seller has provided Notice to Buyer thereof; …
    … (b) The conditions precedent in this section 3.2 are for the benefit of Seller, and Seller may waive any or all of these conditions”.

    It is not within the power of the buyer, the seller, nor the ICC (by its implied approval when the IPA submits its 2013 Power Procurement Plan with the Power Sourcing Agreement) to waive or grant by implied approval the right to waive these governmental authorizations. These are mandated by law and it would be illegal to waive these authorizations.

    c. Again, it is my opinion that FutureGen may use the implied to have either the buyer or seller waive (not have secured) State and Federal required mandated Governmental Authorizations listed under Exhibit 3.1(a)(i) in order to “meet Congressionally mandated stimulus funding deadlines” according to FutureGen’s PowerPoint presentation (Appendix III) of the Draft IPA 2013 Power Procurement Plan filing.

    d. It is also my opinion that FutureGen could even turn this back around on the ICC and plead a case that the ICC does not need to approve the CO2 Pipeline since the ICC approved the 2013 IPA Power Procurement Plan with the Sourcing Agreement included because:
    i. The ICC already approved the CO2 Pipeline by its inclusion in the “approved” SOURCING AGREEMENT, or
    ii. FutureGen invokes the waiver in Paragraph 3.2.b.

    e. FutureGen has already tried to circumvent governmental authorizations with the IPA and ICC with regard to Prevention of Significant Deterioration Permit (From page 12: PSD request for variance on PSD (Air) Permit to IPA). Reference on ICC wedsite -0660&docId=172128 on 3 October 2011

    “Finally. the FutureGen Alliance would recommend that the ICC modify the
    general specification for PSD (Air) Permit to the following: "Demonstrate that a PSD (Air) Permit, if required, has either been issued, or an application has been filed with the Illinois EPA"
    The FutureGen Alliance believes this change is appropriate because it is possible that a clean coal project may not be required to obtain a PSD permit given the near-zero level S02, N02, and CO emissions generated by such a project.”

    Again, in my opinion, it is not within the power or jurisdiction of the ICC to approve a document which allows for the granting of waivers of Governmental Authorizations.

    Betty Niemann
  • November 5, 2012

    I have followed with interest the filings on ICC Docket 12-0544 and as of yet, none of my concerns in this public comment had been addressed. Therefore, I am submitting my comments for ICC to consider.

    1. First and Foremost - No Record of Decision (ROD) by the DOE has been given for the FutureGen “Project” Morgan County site as of yet.

    Background Note: Funding for FutureGen was granted by the DOE under the American Recovery and Reinvestment Act of 2009 which states the money must be expended by 30 September 2015. In order for this project to receive full funding, a Record of Decision by the DOE under NEPA and the Environmental Impact Statement (EIS) procedure must be obtained. (Pages 29728 through 29732 of the Federal Register Vol. 76, No.99/Monday May 23, 2011 Notices must be given.)

    FutureGen is operating as though it has this permission and Kyle Barry, FutureGen Attorney and Lobbyist told the League of Women Voters in March of 2012 in Jacksonville, Illinois, that this DOE money was an act of Congress and therefore would take an act of Congress to remove it…BUT according to Paul Champagne’s affidavit (found on http://www.icc.illinois.gov/docket/files.aspx?no=12-0544&docId=188073), if the “Commission does not approve or defers action upon the FutureGen Project in this procurement, the project’s schedule is no longer viable and the FutureGen Alliance would expect that the $1 billion in ARRA funds will expire and the associated economic benefits to Illinois will not be realized.” The italicized portion of the quote seems to be a veiled threat to the ICC and not a statement of fact.

    YET, FutureGen is proceeding as though it has the ROD permission from the DOE by optioning pore space property rights and maybe even pipeline right of ways, when in fact the entire “project” may fall through leaving property owners unprotected with empty promises and property rights given away under false pretenses.

    2. There is a pending DOE decision to novate the Ameren portion of the funding (ARRA) allocation to FutureGen. Without this part of the funding mix, FutureGen will find it more difficult to complete the project. Yet, FutureGen seems to be proceeding as though the novate is approved. (Page 5 of Humphrey Affidavit http://www.icc.illinois.gov/docket/files.aspx?no=12-0544&docId=188073 )

    Elizabeth Niemann
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