1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF C O O K )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

5 IN THE MATTER OF:

)

6 WATER QUALITY STANDARDS AND

)

EFFLUENT LIMITATIONS FOR THE

) R08-9

7 CHICAGO AREA WATERWAY SYSTEM AND ) (Rulemaking -

THE LOWER DES PLAINES RIVER:

) Water)

8 PROPOSED AMENDMENTS TO 35 Ill. )

Adm. Code Parts 301, 302, 303

)

9 and 304

)

TRANSCRIPT OF PROCEEDINGS held in the

11 above-entitled cause before Hearing Officer Marie

12 Tipsord, called by the Illinois Pollution Control

13 Board, pursuant to notice, taken before Rebecca

14 Graziano, CSR, within and for the County of Cook and

15 State of Illinois, at the Smith Business and Tech

16 Center, 1215 Houbolt Road, Room T-000, Joliet,

17 Illinois, on the 10th Day of March, A.D., 2008,

18 commencing at 2:00 p.m.

L.A. REPORTING (312) 419-9292

A P P E A R A N C E S

ILLINOIS POLLUTION CONTROL BOARD:

Ms. Marie Tipsord, Hearing Officer

Ms. Alisa Liu, P.E., Environmental Scientist

Mr. Anand Rao, Senior Environmental Scientist

Mr. Tanner Girard, Acting Chairman

Mr. Nicholas Melas

Mr. Thomas Johnson

Ms. Andrea Moore

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

Ms. Stefanie Diers

Ms. Deborah Williams

Mr. Robert Sulski

Mr. Scott Twait

Mr. Roy Smogor

Mr. Howard Essig

Ms. Marcia Willhite

ENVIRONMENTAL LAW AND POLICY CENTER,

33 East Wacker Drive

Suite 1300

Chicago, Illinois 60601

(312) 795-3707

BY: MR. ALBERT ETTINGER

MS. JESSICA DEXTER

Appeared on behalf of ELPC, Prairie Rivers

Network, and Sierra Club,

L.A. REPORTING (312) 419-9292

A P P E A R A N C E S C O N T I N U E D

FRANZETTI LAW FIRM P.C.

10 South LaSalle Street

Suite 3600

Chicago, IL 60603

(312) 251-5590

BY: MS. SUSAN FRANZETTI

Appeared on behalf of the Midwest Generation,

L.L.C.,

HODGE DWYER AND ZEMAN

3150 Roland Avenue

Post Office Box 5776

Springfield, IL 62705

(217) 523-4900

BY: MR. THOMAS SAFLEY

Appeared on behalf of Exxon Mobil, and The

Illinois Environmental Regulatory Group,

THE CHICAGO LEGAL CLINIC

2938 East 91st Street

Chicago, Illinois 60617

(773) 731-1762

BY: MR. KEITH HARLEY

Appeared on behalf of the Southeast

Environmental Task Force,

MAYER BROWN LLP

71 South Wacker Drive

Chicago, IL 60606

(312) 782-0600

BY: MR. TOM DIAMOND

Appeared on behalf of Stepan and Company.

L.A. REPORTING (312) 419-9292

MS. TIPSORD: Go ahead, Mr. Diamond.

MR. DIAMOND: Thank you. Tom Diamond

3 with Mayer Brown for Stepan Chemical Company.

Our next question is: Does the

5 Upper Dresden Island Pool currently meet the highest

6 level of biological potential? If not, then

7 according to your testimony, what are the

8 foreseeable improvements in its conditions that will

9 make the Upper Dresden Island Pool habitable by all

10 types of aquatic life populations? And I think for

11 clarification, we used the phrase "highest level of

12 biological potential" because that was used, at

13 least in part, in Mr. Smoger's pre-filed testimony.

14 But, you know, we understand that that's relative to

15 the other designations that are applied in this

16 proceeding.

MR. SMOGER: For the first question,

18 "Does the Pool currently meet the highest level of

19 biological potential," no. In terms of what

20 Illinois EPA believes are foreseeable improvements

21 for Upper Dresden Island Pool, that would be

22 improvements in water temperature and associated

23 improvements with improvements in dissolved oxygen.

MR. DIAMOND: And how did you

L.A. REPORTING (312) 419-9292

1 determine what improvements are foreseeable?

MR. SMOGER: I'm just pretty much

3 going on what was in the Use Attainability Analysis

4 from the Lower Des Plaines River Attachment A. I'm

5 not exactly sure how the term "foreseeable" was

6 defined or if it was defined in specific terms. Do

7 you guys know?

MR. SULSKI: Well, "foreseeable" has

9 often been used in the next -- within the next ten

10 years. That's plus or minus a couple years.

MR. DIAMOND: When you made the

12 proposal, did you foresee that you would need to

13 make improvements in other areas of the Lower Des

14 Plaines River to enable the Upper Dresden Island

15 Pool to reach the highest level of biological

16 potential?

MR. SMOGER: I don't know to what

18 extension that was considered.

MR. DIAMOND: Questions three through

20 five under the heading of Mr. Smoger's testimony we

21 will hold until later, and all of our questions

22 designated for Mr. Twait, we will hold until later.

23 Our questions of Mr. Yoder have been asked, so I'm

24 moving to our questions under the heading of

L.A. REPORTING (312) 419-9292

1 "General Questions."

MS. TIPSORD: And that's on Page 9 of

3 your pre-file testimony?

MR. DIAMOND: Yes. Question No. 1:

5 Did the Illinois EPA consider the effect of

6 increased recreational use on the disturbance of

7 river sediment and the degradation caused by this

8 disturbance in setting or in proposing the aquatic

9 and recreational use designations?

MR. SULSKI: Not that I know of.

MR. DIAMOND: Second question is: The

12 Statement of Reasons on Page 10 refers to the 1972

13 Board decision to designate the area from Lockport

14 to the I 55 bridge as restricted use waters because

15 of heavy industrialization, barge traffic, dyking of

16 the shore line, and dredging. What has changed to

17 make those conditions different now?

MS. WILLIAMS: I would suggest at this

19 point that I think two and three are issues that we

20 went into in some detail last time. So if you feel

21 it's necessary to get some background on the record

22 again, but I think that --

MS. TIPSORD: Could you tell me where

24 you think you answered those questions? Because I

L.A. REPORTING (312) 419-9292

1 don't recall.

MS. WILLIAMS: I think it was Susan

3 who went into some detail about how the issues in

4 the original Board opinion changed, and I think we

5 went through each one in particular. Does that

6 sound right?

MS. FRANZETTI: I'm not sure if it was

8 exactly the same question. I'm trying to quickly

9 turn to it.

MR. DIAMOND: I don't recall this

11 being addressed, and the question -- number --

12 Question No. 3 I was, frankly, intending on holding

13 until, you know, we start talking about water

14 quality standards on disinfection. Question No. 2

15 really relates to how are conditions different today

16 than they were in 1972 when the Board first set up

17 this designation. And if that question has been

18 addressed, I have to say I just don't recall it.

19 And that's my question. How are things different

20 today than in the early 1970s?

MS. WILLIAMS: Did you want to say

22 something, Susan?

MS. FRANZETTI: Well, I don't think

24 that specific question was asked.

L.A. REPORTING (312) 419-9292

MS. WILLIAMS: Okay. Thank you.

MR. SULSKI: I had thought that Scott

3 had addressed that, but I'm willing to do it again,

4 and that is that the water quality has improved

5 dramatically since the 70s for nearly every

6 parameter except temperature and perhaps D.O. and

7 the -- we've had conversations about how sediments

8 -- it's reasonable to believe that sediments have

9 improved over that period of time based on those

10 factors I spoke about, less sediments, cleaner

11 sediments, et cetera.

MR. DIAMOND: Well --

MR. TWAIT: I think it's also fair to

14 say that the district has spent a lot of money on

15 their facility improvements at their wastewater

16 treatment plants. They spend a lot of money on TARP

17 to reduce CSO events, and they spent money on SEPA

18 stations to bring up the dissolved oxygen in

19 sections of the river.

MR. DIAMOND: Earlier today -- and I

21 don't remember -- I think it was you, Mr. Sulski,

22 but it could've been anyone on the panel, you know,

23 you referenced the idea that sediment coming out of

24 the District is cleaner today than it was 30 years

L.A. REPORTING (312) 419-9292

1 ago, but that doesn't change the contaminants that

2 were already in the sediments in the 1970s, does it?

MR. SULSKI: Well, not necessarily,

4 except in the case where these cleaner sediments

5 have buried some of those sediments. However, in

6 the case of areas where they haven't been buried,

7 they keep getting resuspended. They keep getting

8 resuspended, they keep getting exposed to the water

9 column, and they're undergoing, basically, in situ

10 treatment as time goes on and flowing further

11 downstream.

MR. DIAMOND: Did the Use

13 Attainability Analysis by Heye and Associates

14 compare sediment quality from the 1970s to sediment

15 qualities today?

MR. SULSKI: There was a very large

17 gap in the sediment data that either Heye or CDM

18 were able to make conclusions from.

MR. DIAMOND: What do you mean "a

20 large gap?"

MR. SULSKI: A large gap in what was

22 needed. For example, sediment analysis in the early

23 days were collected in regions that were expected

24 presupposed to have very contaminated sediments. So

L.A. REPORTING (312) 419-9292

1 the early sediment analysis were done to answer

2 questions like dredging and disposal. So it's

3 limited to bulk chemistry in areas where they have

4 to dredge or in areas where they know there's severe

5 -- or they expect severe contamination with the idea

6 of dredging and having to dispose of these

7 materials. So right there you bias the universe of

8 what the sediment is out there if you're going for

9 just what you think is the most contaminated. And

10 what you think is most contaminated really may not

11 have anything to do with what is actually

12 contaminated with respect to aquatic life. So those

13 are a couple of instances where, you know, there's

14 just gaps in the data. There's not enough

15 information to make determinations.

MR. DIAMOND: Okay. So what you're

17 saying -- so you aren't saying that there's a gap in

18 terms of these sediments have gotten better, you're

19 just saying that the gap in the data you can't test?

MR. SULSKI: To evaluate that,

21 correct.

MR. TWAIT: As a point of

23 clarification, also, I want to mention that the

24 Lower Des Plaines UAA, which is Attachment A, it

L.A. REPORTING (312) 419-9292

1 does talk about a historic perspective on sediment

2 quality starting on 3-1, but at the -- and

3 continuing on to 3-2 and 3-3, but it was decided

4 that that sediment data from the 1970s was way too

5 old to include as part of the analysis for the UAA

6 from the 1970s, because Haye and Associates was not

7 in charge with looking at whether or not it's

8 improved.

MR. ESSIG: There were data that were

10 selected by MWRD that were analyzed in this report

11 on Page 2-18 and 3-19.

MR. DIAMOND: Was that in the Upper

13 Dresden Island Pool?

MR. ESSIG: Both in the Brandon Pool

15 and the Dresden Island Pool.

MR. DIAMOND: And which pages did you

17 say that was at?

MR. ESSIG: 3-18 and 3-19.

MS. TIPSORD: Attachment A?

MR. ESSIG: Yes. And this was data

21 that was collected between 1989 and 2000, and it

22 does appear to show some improvement in some of the

23 metal parameters.

MR. DIAMOND: Going back to my

L.A. REPORTING (312) 419-9292

1 question, the area along the Upper Dresden Island

2 Pool is still heavily industrialized today, is it

3 not?

MR. TWAIT: Yes.

MR. DIAMOND: And the Upper Dresden

6 Island Pool still gets a substantial amount of barge

7 traffic, correct?

MR. TWAIT: Yes.

MR. DIAMOND: It's still got dyking of

10 the shore line in all portions of the segment?

MR. TWAIT: Is that accurate, Rob?

MR. SULSKI: Portions, yes.

MR. DIAMOND: And it's still subject

14 to periodic dredging, right?

MR. SULSKI: I don't know what the

16 dredging frequency is there.

MS. TIPSORD: I'm sorry. I

18 didn't hear. I apologize. I didn't hear all of it.

MR. SULSKI: I don't know what the

20 dredging frequency is. I didn't -- I don't think --

21 I haven't seen that information.

MR. DIAMOND: Questions three, four,

23 and five we'll hold until criteria-specific

24 questions are asked. Question No. 6: In the

L.A. REPORTING (312) 419-9292

1 Statement of Reasons, Illinois EPA indicates that

2 80 percent of the flow to the Brandon locks comes

3 from wastewater treatment plants. How much flow in

4 the upper Dresden Island Pool is attributed to

5 wastewater treatment plant discharges?

MR. SULSKI: It's roughly the same.

MR. DIAMOND: Question No. 7: The

8 Statement of Reasons on Page 33 states "because most

9 of the CAWS and Lower Des Plaines River is

10 artificially channelized, it is also routinely

11 subject to unavoidable moderate to severe water

12 craft passage-related disturbances such as sediment

13 scouring weight formation that is dangerous to small

14 water craft and disrupts shore line habitat for

15 aquatic life."

Isn't Illinois EPA's proposal to

17 expand use designation to the Lower Des Plaines

18 River inevitably going to result in more incidents?

MR. SULSKI: Incidents of what,

20 please.

MR. DIAMOND: Of accidents between

22 barge traffic and recreational users.

MR. SULSKI: Well, in the first part

24 of your question, we've got to divide the Lower Des

L.A. REPORTING (312) 419-9292

1 Plaines up into the Upper Dresden Island Pool and

2 the Brandon Pool. So in the Brandon Pool, we're not

3 -- we're not protecting for incidental contact uses.

4 In the Lower Des Plaines we are, and we believe that

5 there's enough areas within that pool for recreators

6 to utilize without getting themselves in trouble

7 with barges. In other words, barge traffic and

8 incidental contact recreation are not mutually

9 exclusive in that Upper Dresden Island Pool.

MR. DIAMOND: And what's the basis for

11 that conclusion?

MR. SULSKI: Well, you can just look

13 at a map and see that the Upper Dresden Island Pool

14 has areas away from the shipping channel that are

15 available for use.

MR. TWAIT: I think it's also fair to

17 say that we're not promoting the use, but we're

18 protecting the existing use. We don't necessarily

19 know that more people will recreate on these waters

20 because of the use designation.

MR. DIAMOND: Could you read that

22 answer back for me?

(Whereupon, the record was read as

requested.)

L.A. REPORTING (312) 419-9292

MR. TWAIT: That's not quite accurate,

2 but we're not promoting the use of these waters, but

3 we're protecting the existing use and we know people

4 are -- recreate out there.

MR. DIAMOND: But if you change the

6 use designation to protecting, isn't that going to

7 promote the activity? I mean, you can't do one

8 without the other, can you?

MR. TWAIT: Well, I'm not -- I'm not

10 suggesting that we open up a beach there. That

11 would be promoting the use. We're protecting the

12 existing use, which is -- we have people recreating

13 there.

MR. DIAMOND: Sub part B has been

15 asked and answered. Question No. 8: The Statement

16 of Reasons on Page 34 states, quote, "Each of the

17 reaches possesses some physical limitations to human

18 contact recreation, ranging from deep-draft,

19 steep-walled channels to gradual-slope manicured

20 banks. Such limitations are irreversible in the

21 foreseeable future, but in combination with other

22 factors prescribed preclude any activities from

23 occurring in these reaches other than those that

24 currently exist." If this is the case, why change

L.A. REPORTING (312) 419-9292

1 the current standards?

MR. SULSKI: Well, because the

3 existing uses are not being protected by the

4 existing standards.

MR. DIAMOND: What do you mean by

6 that? I mean, if the uses already exist, how are

7 they not being protected?

MR. SULSKI: We reevaluate the

9 secondary contact waterways. We started from

10 scratch. We dumped secondary contact. We just

11 evaluated these waterways on their face. We

12 established uses existing/attainable, and then we

13 set criteria to protect for those uses. So we

14 cannot go back from existing. That's the bottom

15 line. If it exists, we have to protect for it.

MR. DIAMOND: Questions nine through

17 one we will hold until more specific water quality

18 criteria questions are asked. Questions 13 through

19 15 have been asked and answered, so I'm on to

20 Question 16. Section 302.403 of 35 Illinois

21 Administrative Code refers to unnatural sludge, and

22 Page 55 in the Statement of Reasons says the Agency

23 recognizes the history of sediment pollution in the

24 CAWS in the Lower Des Plaines River. It also says

L.A. REPORTING (312) 419-9292

1 that historic sediment pollution presents an

2 attainability concern to some types of aquatic life

3 in these waters. What type of aquatic life, and

4 what are the conditions and analysis of the

5 sediment?

MR. SULSKI: For now, it's the aquatic

7 life that we -- that's what we have deemed as the

8 potential aquatic life for this -- for these

9 waterways, and the only thing that we've been able

10 to conclude in so far as sediments that it

11 contributes to a habitat metric. It's basically --

12 it's physical structure, the physical structure of

13 the sediment.

MS. WILLIAMS: And can I -- I mean, I

15 guess I would like to clarify a little bit as well

16 here as far as what was intended in this paragraph.

17 It was not so much intended to address aquatic life

18 use per se, but to explain the nature of the

19 existing narrative standard and our recognition that

20 historic sediment is technically a violation of that

21 existing language to just have any type of unnatural

22 sludge or bottom deposits is prohibited by this

23 existing language.

MR. DIAMOND: By the

L.A. REPORTING (312) 419-9292

1 currently-existing regulations that are applicable

2 in the CAWS in the Upper Dresden Island Pool?

MS. WILLIAMS: Correct.

MR. DIAMOND: So, Mr. Sulski, when you

5 said the potential aquatic life of the waterways,

6 does that get back to the tolerant and intolerant

7 species descriptions?

MR. SULSKI: Correct.

MR. DIAMOND: Okay. Items -- general

10 Questions 17 through 22 we'll hold until we have

11 water quality criteria-specific questions. I'm on

12 to the questions under the heading "use

13 designations," Item Number 1. We tried to eliminate

14 some of these that maybe have already been

15 addressed. I think 1 A has been asked and answered.

16 I think B has been asked and answered. Item C:

17 Given the Agency's statements regarding the

18 significance of combined sewer overflows, urban

19 runoff and industrial discharges, is the Lower Des

20 Plaines River still subject to significant sludge

21 composition?

MR. SULSKI: I don't know what you

23 would mean by "significant." What does that mean?

24 Can you please clarify?

L.A. REPORTING (312) 419-9292

MR. DIAMOND: Well, is it -- let's

2 just say is it still subject to sludge deposition?

MR. SULSKI: It is likely subject to

4 some sludge deposition, nowhere near what occurred

5 in the 70s.

MR. DIAMOND: Have you analyzed

7 whether or not the continuing sludge deposition from

8 combined sewer overflows, urban runoff, and

9 industrial discharges continues to impact the

10 viability of the habitat?

MR. SULSKI: The habitat was taken

12 into consideration when the habitat measurements

13 were made, yes.

MR. DIAMOND: Has there been any

15 significant change in the slope or flow conditions

16 of the Lower Des Plaines River between the early

17 1970s and the present?

MR. SULSKI: Not that I know of,

19 except, perhaps, there's less Lake Michigan water

20 diversion.

MR. DIAMOND: Are the waters of the

22 Lower Des Plaines River still subject to urban

23 stresses?

MR. SULSKI: I need you to clarify

L.A. REPORTING (312) 419-9292

1 what you mean by "urban stresses." It was a term

2 used back in the 70s. Can you be more specific?

MR. DIAMOND: Well, if you know that

4 it was a term used back in the 70s, you probably

5 know more what it meant than I do.

MR. SULSKI: Well, let's see, I was a

7 sophomore in high school in the 70s. Well, I can

8 give you an answer, but the answer is going to be

9 how we believe conditions have improved over that

10 period of time, which we've been doing and providing

11 that information in other questions, but I can run

12 through it again.

MR. DIAMOND: Well, population has

14 increased in the area, has it not?

MR. SULSKI: Yes, it has.

MR. DIAMOND: Doesn't that present the

17 potential for even greater urban stresses?

MR. SULSKI: Well, we have better --

19 we have dealt with urban stresses in a far more --

20 in a far better way and efficient way than we did in

21 the 70s. So, you know, I can go on with wastewater

22 treatment plant expansions and TARP and that sort of

23 thing and storm water permit programs and BNP's and

24 et cetera, et cetera. Those are ways that we've

L.A. REPORTING (312) 419-9292

1 been better dealing with --

MS. TIPSORD: Excuse me. Can I ask

3 you this question --

MR. SULSKI: Yes.

MS. TIPSORD: Is there more effluent

6 being discharged into these?

MR. SULSKI: There is more effluent

8 being discharged, yes, with a population expansion.

MS. TIPSORD: Thank you.

MR. SULSKI: But, yeah, it's better

11 quality.

MS. TIPSORD: Yeah, yeah. I

13 understand that, yeah.

MR. TWAIT: Well, is that

15 necessarily --

MR. SULSKI: True?

MR. TWAIT: I was thinking that --

18 well, that's what I was going to say. I was

19 thinking that the state water survey when they redid

20 the 7210 maps, they deviated -- there's less --

MR. SULSKI: That was -- it was an

22 incorrect map to begin with.

MR. TWAIT: Okay. Okay. Sorry.

MR. SULSKI: They corrected a map.

L.A. REPORTING (312) 419-9292

MR. DIAMOND: I'm just going to waive

2 on my second question here, because it's sort of

3 been answered or more obviated, but I do have a,

4 sort of, related question to it and that's this:

5 The Agency has indicated in several instances that

6 it did not conduct a UAA factor since economic

7 impact analysis, and the Agency has indicated that

8 it, you know, offered stakeholders the opportunity

9 to provide information on that topic, and it

10 received some information but not all. Isn't it

11 true that no stakeholder by itself has all the

12 economic information that would be necessary to do a

13 factor six analysis?

MR. SULSKI: I don't know. The

15 stakeholder would have to look at that guidance

16 document and make that determination and then if

17 that information wasn't available, I -- you know,

18 let us know.

MR. DIAMOND: Well, but if factor six

20 is supposed to be based on an overall economic

21 impact to, you know, on a household by household

22 basis, that's a lot of information that an

23 individual stakeholder simply doesn't have and would

24 be more appropriate for -- you know, it would take

L.A. REPORTING (312) 419-9292

1 the resources of a government agency to gather,

2 wouldn't it?

MR. SULSKI: I think that the analysis

4 could be broken down into parts that could be

5 handled by various, you know, groups, and then that

6 could be put together for the sake of the Board or

7 whoever's making the final determination on what the

8 bigger picture is.

MR. DIAMOND: The third question

10 related to the statement that was on Page 24 of the

11 Statement of Reasons, and I'll read it in its

12 entirety even though I didn't put it in the

13 prewritten questions. The statement is: These uses

14 and standards are intended to reflect the best and

15 most up-to-date information available and are

16 intended to outlast the existing General use

17 designation and standards currently applicable in

18 the rest of the state. When the Board is faced with

19 a proposal to update the one size fits all aquatic

20 life use designations for the rest of the state, the

21 Illinois EPA expects there to be no need to reopen

22 these uses and standards designed to apply

23 specifically to these waters.

And the question is: Does the

L.A. REPORTING (312) 419-9292

1 Agency intend the uses and standards proposed this

2 proceeding to possibly be applied to waters outside

3 the Lower Des Plaines River in the CAWS?

MS. WILLIAMS: No.

MR. SULSKI: Not at this time.

MR. DIAMOND: I believe number four

7 and number five have been asked and answered. I'm

8 going to go to my next set of questions under the

9 heading "facilities likely to be impacted." Did the

10 Agency seek information from industrial dischargers

11 into the Lower Des Plaines River as to the thermal

12 quality of their discharges and their ability to

13 meet the proposed water quality standards without

14 construction of cooling towers or other cooling

15 systems?

MR. TWAIT: No, I don't believe we

17 did.

MR. DIAMOND: How many facility does

19 the Agency expect will be impacted by the proposed

20 new thermal standards for the Upper Dresden Island

21 Pool?

MR. TWAIT: I don't know exactly, but

23 it's probably less than ten in the order of -- order

24 of probably five or six.

L.A. REPORTING (312) 419-9292

MS. TIPSORD: Can I ask out of how

2 many potential facilities would that be? How many

3 facilities would be impacted at a thermal standard

4 or discharged warm water at this point?

MR. SULSKI: I think --

MR. TWAIT: Five or six.

MS. TIPSORD: I'm sorry. You had four

8 people answering at once. Mr. Twait, could you

9 answer the question, please?

MR. TWAIT: I think the answer is five

11 or six.

MS. TIPSORD: So 100 percent of the

13 people discharging will be impacted?

MR. TWAIT: No.

MS. TIPSORD: That's what I'm trying

16 to get at.

MR. TWAIT: I don't know how many

18 facilities are discharging there.

MS. TIPSORD: Okay.

MR. TWAIT: I would say guessing it

21 would probably be 40 percent.

MS. TIPSORD: Okay. Thank you.

MR. DIAMOND: Three, I believe, has

24 been asked and answered, but let me just clarify.

L.A. REPORTING (312) 419-9292

1 The Agency has not considered the costs of

2 industrial discharges on the Upper Dresden Island

3 Pool to comply with proposed thermal standards, have

4 you?

MR. TWAIT: No.

MR. DIAMOND: Four has been asked and

7 answered. Number five: Has the Agency's bureau of

8 water consulted to the bureau of air as to the

9 likely increase and particulate matter emissions

10 that would result from the construction of cooling

11 towers to meet the proposed new thermal standards?

MR. SULSKI: I had a question on what

13 particular matter emissions you're talking about.

MR. DIAMOND: Mr. Sulski, you said

15 "particular." I tried to say "particulate."

MR. SULSKI: Yeah. What particular

17 particulate matters are you talking about?

MR. DIAMOND: Well, I think for the

19 technically inclined, it's generally understood that

20 cooling towers result in particulate matter

21 emissions.

MR. SULSKI: I can't answer the

23 question. I was -- I thought it was in terms --

24 when you put the word "construction" in here, I

L.A. REPORTING (312) 419-9292

1 thought it was in terms of construction.

MR. DIAMOND: Well, the construction

3 and the operation of the cooling towers.

MR. TWAIT: Well, the --

MR. DIAMOND: The simple question is:

6 Have you consulted with the bureau of air on that

7 topic?

MR. TWAIT: The answer is no, we have

9 not.

MR. DIAMOND: Question No. 6: If the

11 Agency has not conducted these inquiries, how can it

12 conclude that the proposed use designation does

13 cause more environmental damage than leaving the

14 current use designation in place referencing UAA

15 factor three for the Lower Des Plaines River from

16 Brandon Road locks to the I 55 bridge?

MR. TWAIT: Well, I'm not real sure

18 how much particulates are discharged by cooling

19 towers, so I can't really answer that question.

MS. TIPSORD: Is that information that

21 you might be able to get if you did consult with the

22 bureau of air?

MS. WILLIAMS: We can see what we can

24 find out. This is the first we've heard. We

L.A. REPORTING (312) 419-9292

1 assumed they were talking to construction. This is

2 the first we've heard that cooling towers released

3 particulate matter. That was not an assumption that

4 we had.

MS. TIPSORD: Mr. Harley, you have a

6 followup?

MR. HARLEY: Keith Harley with Chicago

8 Legal Clinic on behalf of the Southeast

9 Environmental Task Force. In undertaking that

10 analysis, would you please also ask the bureau what

11 other -- what the impact would be of offsets that

12 would need to be required as part of any

13 construction activities, which -- would more than

14 likely more offset particulate matter emissions

15 regionally than would result from the construction

16 of an individual source?

MS. WILLIAMS: Okay.

MR. JARRETT: Alan Jarrett, Corn

19 Products International, and adding to that question,

20 if offsets are not available, then economically what

21 is the alternative to -- because the offsets may not

22 be practically available.

MS. WILLIAMS: Can you repeat that,

24 please, about the part about if offsets are not

L.A. REPORTING (312) 419-9292

1 available. I'm trying to understand what we're

2 trying to find out.

MR. JARRETT: Well, there's a

4 presumption in the question that offsets are

5 available to generate them they have to be cost

6 incurred.

MS. WILLIAMS: So you're asking us

8 to --

MR. JARRETT: They may not be readily

10 available. We don't know if there are offsets.

MS. WILLIAMS: So you're asking us to

12 ask the bureau if there are not offsets, what would

13 the cost be?

MR. JARRETT: What would you do if

15 there are no offsets?

MS. WILLIAMS: In the context of

17 permitting --

MR. JARRETT: Yes.

MS. WILLIAMS: -- cooling towers for

20 an air permit? Okay.

MR. JARRETT: Yes, because in the

22 absence of available offsets then construction is

23 prohibited, and then there's no viable means to

24 build a cooling tower.

L.A. REPORTING (312) 419-9292

MR. DIAMOND: In other words, you're

2 telling -- the bureau of water is telling us to

3 build cooling towers, and the bureau of air is

4 telling us "no, you can't." It ends up being a

5 little bit of a problem for industry. Item

6 number seven: Has the Agency's bureau of water

7 considered whether cooling towers or other cooling

8 systems are capable of being permitted under

9 regulations of air emissions given the associated

10 particulate matter emissions?

MR. TWAIT: I think the answer to that

12 would be no.

MR. DIAMOND: The next set of

14 questions is on thermal standards, and we will pass

15 those until later, and likewise with the questions

16 on dissolved oxygen. Our next set of questions is

17 on stakeholder involvement.

MS. TIPSORD: That's on Page 14?

MR. DIAMOND: Page 14. I believe

20 number one referencing temperature standards that

21 were discussed with the stakeholders has been asked

22 and answered, and that number two has been asked and

23 answered. Number three, in some ways, has a

24 predicate to it, but let me just ask the question:

L.A. REPORTING (312) 419-9292

1 Why did the Agency propose the current regulations

2 without another review with the stakeholders

3 advisory group, in particular with regard to the

4 thermal standards?

MR. TWAIT: The changes to the thermal

6 standards after our last meeting were making it less

7 stringent, I believe.

MR. ETTINGER: We're really offended.

MR. TWAIT: And those were based on

10 comments.

MS. WILLIAMS: And to complete the

12 thought, the Environmental Group had specifically

13 asked us not to have another stakeholder meeting,

14 but to take our proposal to the Board, which

15 would've been the likely group that would've wanted

16 to comment on a less stringent --

MR. DIAMOND: Who were the

18 environmental groups that asked you to go straight

19 to the Board?

MS. WILLIAMS: There's a ladder that I

21 believe was in the record that was signed by several

22 groups. I can't recite them off the top of my head,

23 but I do think it's already somewhere. If it's not

24 in the record, would you like us to put it in the

L.A. REPORTING (312) 419-9292

1 record? I thought it was, but I can't point to it

2 now.

MR. DIAMOND: I'm not -- I mean, it

4 could be, but I'm not aware of it. I mean, that

5 would be fine. And it's correct that the

6 temperature standards that have been proposed to the

7 Board were not presented to the stakeholders

8 advisory group, correct?

MR. TWAIT: The only changes made were

10 less stringent than what was provided to the

11 stakeholder advisory group.

MR. DIAMOND: Item Number 4: On what

13 basis did the Agency change the proposed temperature

14 standards between the last proposal to the

15 stakeholders advisory group and what was proposed to

16 the Board?

MR. TWAIT: It was based on comments,

18 and I can't remember specifically what was changed.

19 So I don't know that I'd be able to answer that

20 offhand.

MS. FRANZETTI: If I may?

MS. TIPSORD: Yes, Ms. Franzetti.

MS. FRANZETTI: Mr. Twait, can you

24 just expand on when you said "based on comments."

L.A. REPORTING (312) 419-9292

1 Comments within the Agency, from outside of the

2 Agency? Can you give us just a little more

3 definition of what you mean?

MR. TWAIT: I don't remember all the

5 changes that were made, so I can't be more specific.

6 I don't have a copy of what was proposed to the

7 stakeholder groups.

MS. TIPSORD: With you or at all?

MR. TWAIT: With me.

MR. DIAMOND: The fifth question is:

11 Did the Agency have any meetings or other

12 communications with any stakeholders regarding the

13 temperature criteria, use designations, or other

14 matters addressed in this rule making after

15 January of 2007?

MS. TIPSORD: Excuse me, Mr. Diamond,

17 before you ask that question --

MS. WILLIAMS: Sure.

MS. TIPSORD: The Agency needs to

20 answer Question No. 4 in writing then. You guys had

21 these pre-filed questions. Let's go off the record

22 for just a second.

(Whereupon, a discussion was had

off the record.)

L.A. REPORTING (312) 419-9292

MS. TIPSORD: Let's go back on the

2 record.

MS. WILLIAMS: I don't think it's

4 necessary to answer in writing what I was looking

5 for, but I don't have enough space to get to all my

6 boxes if we've prepared enough copies of what went

7 out to the stakeholders group for submittal as an

8 exhibit if you would like to have it entered as an

9 exhibit so it had to be held up again --

MS. TIPSORD: That's still -- that's

11 still not answering the question. That's giving us

12 two things for us to then compare. The question was

13 asked of you to explain the difference, and like I

14 said, you had these questions for a while. And like

15 I said, I've let you get by with "Well, I didn't

16 understand that's what you were asking." But we're

17 not going to get anywhere if you don't answer the

18 pre-filed questions. Mr. Diamond's Question 5,

19 could you read it back for us, please?

(Whereupon, the record was read as

requested.)

MS. WILLIAMS: So Mr. Diamond, in

23 January of 2007, just to be clear that this question

24 is clear for the record, we sent a hard copy --

L.A. REPORTING (312) 419-9292

1 well, by electronic mail we sent a copy of what we

2 expected to propose to all the stakeholders. Then

3 in March of 2007, we had meetings that were open to

4 anyone who wanted to attend one in Chicago and one

5 in Joliet where we took oral comments from anyone

6 who wanted to make them on the proposal. So that

7 would be after January, 2007.

Subsequent to those March

9 meetings, we accepted written comments for a period

10 of time, which were taken into account in adopting

11 our final proposal before the Board.

MR. DIAMOND: And are the written

13 comments one of the attachments to the Statement of

14 Reasons?

MS. WILLIAMS: I don't believe so. I

16 don't think we've received very many. The letter

17 I'm referring to is one, and if there are any

18 others, we can submit those as well.

MR. DIAMOND: We would ask that you

20 do. So it was the March of 2007 meetings in Chicago

21 and Joliet, it was the written comments, and as best

22 as you can recall, that it's after January of '07?

MS. WILLIAMS: That's all.

MR. DIAMOND: All right. On to the

L.A. REPORTING (312) 419-9292

1 next heading on questions regarding the Lower Des

2 Plains River Use Attainability Analysis Final

3 Report. Number one: Why did the Agency not ask the

4 authors of the UAA Final Report to address the

5 economic impact of the changes and use designation?

MR. SMOGER: Illinois EPA doesn't

7 believe that the Use Attainability Analysis as

8 defined in 40 CFR 131.3 G absolutely requires

9 addressing economic impact. In fact, the definition

10 at 40 CFR 131.3 G mentions, quote, "Use

11 Attainability Analysis may include physical,

12 chemical, biological, economic factors as described

13 in Section 131.10 G," end of quote.

MR. DIAMOND: Does the Agency agree

15 with the Statement in the UAA Final Report, that's

16 Page 2-102, that such a study is quote, "crucial?"

MR. SMOGER: If crucial means

18 required, then no.

MR. DIAMOND: Well, the Aqua Nova and

20 Heye and Associates were the Agency's chosen

21 contractors to prepare the UAA Report, correct?

MR. SMOGOR: Yes.

MR. DIAMOND: So, if Heye and

24 Associates -- if Aqua Nova and Heye and Associates

L.A. REPORTING (312) 419-9292

1 called it crucial, I assume that that terminology is

2 something the Agency agreed with, because you -- I

3 mean, you approved the final report, didn't you?

MR. SMOGOR: I don't know if it was

5 formally approved or not, but I would say if Aqua

6 Nova -- if the Lower Des Plaines River UAA is

7 stating that an economic impact analysis is a

8 requirement of Use Attainability Analysis, then I

9 would say that our Agency disagrees with that.

MR. DIAMOND: And so I take it your

11 answer to -- my last question is: If not, what is

12 the Agency's legal justification for ignoring one of

13 the UAA factors set forth at 40 CFR Section 131.10

14 G, and I guess your answer is that you just don't

15 think you have to.

MR. SMOGOR: Yes, that's one way to

17 put it.

MR. SULSKI: Well, I don't think that

19 we ignored it, either.

MR. DIAMOND: You didn't --

MR. SULSKI: It's not something that

22 was ignored. It's something that both the

23 contractors believed a lot of information was needed

24 to make such a determination, and without that

L.A. REPORTING (312) 419-9292

1 information, it was beyond theirs or anybody's

2 ability. And the stakeholders were asked to provide

3 that type of information, especially those who would

4 be effected by the proposed standards, mainly MWRDGC

5 and Midwest Generation. One for dissolved oxygen

6 and flow augmentation and disinfection, and the

7 other for temperature.

MS. TIPSORD: Back up. Mr. Sulski,

9 you said MWRD --

MR. SULSKI: GC.

MS. TIPSORD: GC. Okay. You were --

MR. SULSKI: Greater Chicago.

MS. TIPSORD: Right. It sounded like

14 you were saying two different entities when you said

15 it. That's why I was double-checking.

MR. DIAMOND: The bottom line: You

17 didn't have your consultant conduct the analysis,

18 did you?

MR. SULSKI: They couldn't. That's

20 what they told us, we can't. We don't have the

21 information, and we didn't disagree with them.

MR. DIAMOND: Well, they wouldn't have

23 had the information on the QHEI or anything else if

24 they wouldn't have gone out and done their study,

L.A. REPORTING (312) 419-9292

1 would they?

MR. SULSKI: QHEI was paid for by

3 USEPA midstream because it was crucial to make

4 decisions. But that was information that somebody

5 came forward with and said "We'll give you a

6 contract to go out and collect that information."

MR. DIAMOND: Second question is:

8 Despite admitting that it did not analyze one of the

9 UAA factors, the UAA Final Report concluded that the

10 existing thermal standards should be replaced at

11 Page 2-103. How could the authors of the UAA Final

12 Report legitimately reach that conclusion when they

13 had not analyzed a UAA factor deemed crucial?

MR. ETTINGER: I want to note one

15 objection, just the form of these questions. They

16 make a lot of legal presumptions. I don't agree

17 with these legal presumptions. He can ask his

18 questions, but I don't want it to be understood that

19 we believe that the law is what Mr. Diamond's

20 questions presume that it is.

MR. TWAIT: The contractor made that

22 determination by looking at the current thermal

23 standard and determining that 100 degrees Fahrenheit

24 was lethal to fish. So he determined that it should

L.A. REPORTING (312) 419-9292

1 be replaced with something.

MR. DIAMOND: But the question is: If

3 the contractor says that there's a factor that ought

4 to be considered that is crucial, how can they reach

5 a determination without considering a factor that

6 they consider to be crucial? I guess I would also

7 note for the record that I don't think my question

8 presumes anything about the law. It's just relying

9 upon what's said in the report and what the

10 contractor said.

MR. TWAIT: The contractor was using

12 "crucial" to help determine -- saying that the study

13 is crucial if you don't want to use general use.

14 But unless you use the socioeconomic impact

15 analysis, then you'd have to use general use

16 standards for thermal. So he's basically saying

17 that it's crucial if you don't want to use general

18 use.

MS. TIPSORD: And just to be clear,

20 Mr. Twait, you're looking at Page 2?

MR. TWAIT: 2-102.

MS. TIPSORD: 2-102 of Attachment A?

MR. TWAIT: Yes.

MR. DIAMOND: Questions three and four

L.A. REPORTING (312) 419-9292

1 I think have been asked and answered. Number five:

2 Does the Agency agree with the statements in the UAA

3 Final Report of Page 4-12 the vegetation in the UDI

4 Pool is indicative of a disturbed community and the

5 industrial development exists along much of the UDI

6 Pool, the Upper Dresden Island Pool segment of the

7 Lower Des Plaines River?

MR. ESSIG: We don't believe that the

9 presence of disturbed riparian vegetation and the

10 presence of some industry makes the habitat

11 unsuitable for aquatic life.

MR. DIAMOND: But that doesn't answer

13 the question. I mean, the question is: Do you

14 agree with the statements in the report that the --

MR. ESSIG: Okay.

MR. DIAMOND: -- vegetation in the

17 Upper Dresden Island Pool is indicative of a

18 disturbed community and that industrial development

19 exists along much of the Upper Dresden Island Pool

20 segment?

MR. ESSIG: Yes, there is industry in

22 the segment. As far as disturbed vegetation, I

23 don't know.

MR. SULSKI: I disagree with his --

L.A. REPORTING (312) 419-9292

1 what he means by "disturbed vegetation." He goes

2 ahead and describes "Cottonwoods, Green Ash, Elms,

3 various shrubs." It looks like a pretty good

4 community to me that you would expect to find in an

5 environment like that. So in answer to your

6 question, I'll disagree with his determination.

MS. DIERS: Rob, when you say "he,"

8 are you referring to Novotany?

MR. SULSKI: Novotany.

MS. DIERS: And what are you reading

11 from?

MR. SULSKI: I'm reading right from

13 the report.

MS. DIERS: Okay. Attachment A?

MR. SULSKI: Attachment A.

MS. DIERS: And what page are you

17 reading from?

MR. SULSKI: Page 412.

MS. TIPSORD: Thanks.

MR. DIAMOND: So you're rejecting the

21 conclusions of the contract that the Agency hired to

22 do the UAA analysis?

MR. SULSKI: In this regard, yes.

MR. DIAMOND: Did you -- did the

L.A. REPORTING (312) 419-9292

1 Agency offer that comment to Aqua Nova and Heye at

2 the time the report was prepared?

MR. SULSKI: I don't know whether we

4 did or didn't.

MR. DIAMOND: Did the Agency review

6 the report and give comments on it before it was

7 finalized?

MR. SULSKI: Yes.

MR. TWAIT: Yes.

MR. DIAMOND: And apparently, whatever

11 comments you gave, you didn't ask them to change

12 this statement in the report. Is that correct?

MR. SULSKI: If I would've seen this

14 comment -- and I don't recall seeing it until

15 relatively recently -- yes, I would've objected to

16 that, the inclusion of that statement.

MR. DIAMOND: That wasn't the question

18 I asked. The Agency did not -- apparently did not

19 object to that statement being in the final report.

20 Isn't that correct?

MR. SULSKI: I don't know whether they

22 did or didn't.

MR. DIAMOND: Well, the statement

24 ended up in the final -- are there any statements in

L.A. REPORTING (312) 419-9292

1 that report that ended up in the final report that

2 the Agency objected to?

MR. TWAIT: I think "objected" is a

4 strong term. There was -- well, yes, there's some

5 statements in there that I don't think that we asked

6 to be removed, but it was -- they stayed in based

7 upon the contractor's determination. The Agency

8 didn't get every comment that we asked for.

MR. DIAMOND: Is that why we don't

10 have the authors of this report before us at the

11 proceeding?

MR. TWAIT: I don't believe we have

13 them because we don't have -- they're not on

14 contract.

MR. DIAMOND: The UAA Final Report on

16 Pages 4-32 to 4-33 states that, quote, "Navigation

17 is listed as a typical and protected use," end

18 quote. In 40 CFR, Part 131, and is a multimillion

19 dollar industry of the Lower Des Plaines River.

20 Does the Agency agree with those statements?

MR. TWAIT: I think that sounds

22 reasonable.

MR. DIAMOND: I think seven has been

24 addressed in the questions that we've asked on the

L.A. REPORTING (312) 419-9292

1 QHEI score and how it's used. The UAA Final Report

2 states that Page 4-33 that two habitat categories

3 measured by the QHEI, quote, "could be improved

4 through artificial management," end quote. What

5 does that mean?

MR. ESSIG: That means that basically

7 the two metrics in question were in stream cover and

8 repairing zone. With in stream cover, you could add

9 things like boulders along the shore line, you could

10 improve the vegetation along the shore lines, or

11 repairing another road. Those are all things that

12 are manageable.

MR. DIAMOND: Okay. Mr. Essig, when

14 you say "you" could improve these, who is the "you"

15 who would do that?

MR. ESSIG: That is to be determined.

MR. DIAMOND: Is the Agency intending

18 on doing that?

MR. ESSIG: No plans that I'm aware

20 of.

MR. DIAMOND: And that obviates Part

22 C, so I am done with my general questions.

MS. TIPSORD: Then if we can move to

24 the Environmental Law and Policy Center.

L.A. REPORTING (312) 419-9292

MS. DEXTER: I think we'll just stay

2 here. So our questions are going to change a bit

3 and go back to the recreational use designations.

MS. TIPSORD: You need to speak up and

5 slow down.

MS. DEXTER: Sorry. So we're going to

7 begin with Question 8. The first are either

8 answered or they're more specific.

MS. WILLIAMS: I'm sorry. Could you

10 repeat that?

MS. DEXTER: The first seven are

12 either answered, or they're more specific. So we're

13 starting with Question 8. So Question 8 is: What

14 analysis did IEPA use to decide which recreational

15 activities would be considered primary recreation,

16 which incidental contact recreation, and which

17 noncontact recreation?

MR. SULSKI: I -- it was performed in

19 a stakeholder setting with guidance from USEPA's

20 stakeholder members, guidance documents, the

21 opinions, and interactions of the stakeholders. So

22 it wasn't any one source. It came out of the

23 stakeholder process geared towards these waterways,

24 and what became primary contact -- considered

L.A. REPORTING (312) 419-9292

1 primary contact recreation would be those

2 recreational activities where the head goes under

3 the water, and you have a chance of directly

4 ingesting water. Incidental contact recreation, the

5 recreational activities that we observed that would

6 put you in direct contact with the water would

7 potentially result in maybe a hand-to-mouth oral

8 transfer of waters or whatever was if them.

9 Noncontact, that would be not where body comes in

10 contact with the waters. So riding up in a boat,

11 speeding along. I think that covers the three.

MS. DEXTER: Okay. Question 9: On

13 Page 25 of the Statement of Reasons and Page 11 of

14 the Sulski pre-filed testimony, incidental contact

15 recreation is defined as, quote, "Any recreational

16 activity in which human contact with the water is

17 incidental and in which the probability of ingesting

18 appreciable quantities of water is admissible." How

19 did IEPA determine the probability of water

20 ingestion is minimal to start out with the water

21 scaling? That doesn't -- did you say water scaling

22 is a primary contact?

MR. SULSKI: Yes.

MS. DEXTER: Okay. How about jet

L.A. REPORTING (312) 419-9292

1 skiing?

MR. SULSKI: It's based on the

3 observed uses that we saw in CAWS, and jet skiing --

4 jet skis were used primarily to get from one point

5 to another, another mode of transportation but

6 closer to the water. I can only think of one

7 instance out of all the jet skiers we saw where

8 somebody was hot dogging around and could possibly

9 fall off of a jet ski and go into the water. Other

10 than that, it is moving from point A to point B.

MS. DEXTER: So it's -- no formal

12 probability analysis was done?

MR. SULSKI: That's correct.

MS. DEXTER: It was sort of based on

15 observations? What would you consider an

16 appreciable quantity of water?

MR. SULSKI: I don't know what the

18 answer to that is.

MR. TWAIT: I think it would be

20 similar to what you would expect to get while you

21 were swimming.

MS. DEXTER: With your head

23 underwater?

MR. TWAIT: With your head below

L.A. REPORTING (312) 419-9292

1 water.

MS. DEXTER: All right. Question 10:

3 Did IEPA analyze the risk of capsize for the

4 following small craft recreational boating

5 activities: Rowing, kayaking or canoeing?

MR. SULSKI: No. Only to the extent

7 that it would be potentially dangerous to somebody

8 who capsized in a deep, steep walled shipping

9 channel without exit points.

MS. DEXTER: If -- I was more -- my

11 question was more pointed to the probability of one

12 of these things capsizing, that no analysis was done

13 on --

MR. SULSKI: No.

MS. DEXTER: Okay. Did IEPA analyze

16 the probability of ingesting water in the event of a

17 kayak capsize?

MR. SULSKI: No.

MS. DEXTER: Or rowboat, or canoe?

20 Any of these?

MR. SULSKI: No.

MS. DEXTER: Okay. The footnote on

23 Page 43 of the Statement of Reasons states that

24 kayaking and jet skiing have some likelihood of

L.A. REPORTING (312) 419-9292

1 water ingestion, but participants in those

2 activities are not as likely to ingest water as

3 swimmers, for example. Are you aware of any studies

4 of data that support this conclusion?

MR. SULSKI: I don't know of any data

6 or studies -- well, I don't know of any studies.

7 The data that we have is based on our personal

8 observations and the contractors' observations of

9 how those watercrafts were used within the waterways

10 that we've -- that we're looking at here.

MS. DEXTER: Okay. Question 13: Did

12 IEPA explore creating an intermediate recreational

13 designation between incidental contact and primary

14 contact?

MR. SULSKI: Not -- no, we didn't.

16 Not -- it wasn't brought up in the stakeholder

17 process.

MS. DEXTER: Okay. I'll move on to

19 Question 14. In the analysis of UAA factor four on

20 Page 34 of the Statement of Reasons, IEPA states

21 "The physical attributes of the regions designated

22 incidental contact range from deep draft,

23 steep-walled channels to gradual, sloped, manicured

24 banks." What regions, or portions thereof, can be

L.A. REPORTING (312) 419-9292

1 described as having gradual, sloped, manicured

2 banks?

MR. SULSKI: There are some areas that

4 are privately owned along the north branch up to the

5 shore that have some. It's very limited, by the

6 way. There are some manicured banks in -- along the

7 Cal Sag Channel in the area of Worth of development

8 down there, or maybe that's Palos. But it's -- it's

9 a relatively rare sort of bank line.

MS. DEXTER: Can you explain how this

11 physical attribute precludes primary contact

12 recreation?

MR. SULSKI: I'm sorry. I was

14 distracted. Please --

MS. DEXTER: How gradual, sloped,

16 manicured banks are a physical attribute that

17 precludes primary contact recreation, under the

18 assumption that you're using this as a factor in

19 downgrade?

MR. SULSKI: Well, I --

MR. ESSIG: I think that --

MR. SULSKI: Yeah, go ahead, Howard.

MR. ESSIG: I believe that that was

24 more than a general statement describing the range

L.A. REPORTING (312) 419-9292

1 of conditions within those waterways. It wasn't

2 meant to indicate that those areas that had

3 manicured banks were also areas that had physical

4 limitations for recreational content.

MS. WILLIAMS: But it's confusing the

6 way it was written, correct?

MR. ESSIG: Yes.

MS. DEXTER: Okay. Question 15: The

9 descriptions of physical attributes of all three

10 recreational use designations, non-recreational,

11 noncontact recreation, incidental contact recreation

12 on Page 33 and 34 of the Statement of Reasons states

13 that certain reaches are deep-draft, steep-walled

14 waterways. What thresholds must be met to fit this

15 description? Is there a definition? I guess we've

16 covered that part of it.

MR. SULSKI: I think if it's over your

18 head, and the walls are vertical.

MS. DEXTER: The water level --

MR. SULSKI: The water level is over

21 your head and the walls are vertical, that's a

22 pretty good description.

MS. DEXTER: Okay. Was there evidence

24 of existing recreational use found in any of these

L.A. REPORTING (312) 419-9292

1 areas?

MR. SULSKI: Yes.

MS. DEXTER: What did you find?

MR. SULSKI: We found some power

5 boating, paddle boating in some of these areas. Not

6 all of them, but some of them. But when they did

7 occur in these areas, they were generally planned

8 events that were worked out in other stakeholder

9 groups that involved water use, recreational users,

10 or watercraft users. There was the Port Development

11 Safety Counsel, which has routine meetings, and

12 these sort of events need to be worked out through

13 them. So those -- they did occur in those areas.

14 They were generally special events. They were

15 worked out in a stakeholder format because of safety

16 issues.

MS. DEXTER: Question 16: On Page 34

18 of the Statement of Reasons on Page 11 of the Sulski

19 pre-filed testimony, you state that the physical

20 limitations described are irreversible. Can you

21 explain what you mean by "irreversible?"

MR. SULSKI: Well, irreversible means

23 that it can't or very likely won't change.

MS. TIPSORD: Could you give us an

L.A. REPORTING (312) 419-9292

1 example?

MR. SULSKI: Sure. I was waiting for

3 that. Well, you can't stop navigation to protected

4 use. You can't allow buildings to fall into the

5 waterways, so you can't rip out shore lines and

6 revetments and sheet-piling walls. You can't allow

7 invasive species to get into Lake Michigan from the

8 Lower Illinois River and vice versa. It's very

9 difficult to relocate rock, vertical rock walls.

10 You don't -- we don't have the authority to declare

11 a no-wake zone across the entire system. We can't

12 force public access. You can't allow Lake

13 Michigan's water to flow uncontrolled into the

14 system. You can't allow river water during storm

15 events to flow uncontrolled out to the lake. Those

16 are things that you can't or won't do. That's what

17 -- those are some examples.

MS. TIPSORD: We have a followup in

19 the back of the room.

MS. BERKLAND: Tracy Berkland. Are

21 there examples of changes to the physical

22 limitations within this system that are a result of

23 natural courses that over time nature might lead to

24 changes in the physical limitations?

L.A. REPORTING (312) 419-9292

MR. SULSKI: Well, we spoke about

2 sediment improvement over time, sediment quality

3 improvement over time.

MS. BERKLAND: If the walls, for

5 example, are age-deteriorated, is there anyone

6 activity fixing or repairing those walls and keeping

7 them in the -- I guess in the form that they were

8 originally constructed in?

MR. SULSKI: That depends on whose

10 walls they are or what -- you know, what they're

11 protecting. I mean, if it's an existing facility

12 and they're utilizing that facility, they're going

13 to repair them to continue their operations or

14 whatever. The other extreme is in the case of --

15 well, they maintain navigation. Anything outside of

16 that is up for grabs, I guess.

MS. BERKLAND: Thank you.

MS. DEXTER: I'll move on to Question

19 17. On Page 42 of the Statement of Reasons, IEPA

20 concluded that portions of the Sanitary and Ship

21 Canal and the Brandon Pool cannot attain secondary

22 contact recreational uses. Is it possible that you

23 meant "incidental contact."

MR. SULSKI: Yes, and I apologize for

L.A. REPORTING (312) 419-9292

1 using that term "secondary contact." We are

2 replacing that use, and I did mean incidental and

3 noncontact.

MS. DEXTER: Okay. Question 18: On

5 Page 23 of the Statement of Reasons, it is stated

6 that the UAA was undertaken -- it is stated that the

7 UAA was undertaken to determine the existing and

8 potential uses of the CAWS. Can you please explain

9 how you evaluated the potential uses.

MS. WILLIAMS: Is it fair, here, to

11 limit -- to assume your questions are looking at

12 recreational use?

MS. DEXTER: Yes.

MR. SULSKI: Oh, you're just on

15 recreational use?

MS. DEXTER: Just --

MR. SULSKI: Okay. Recreational use

18 analysis involved first identifying existing uses

19 through the surveys that were conducted. In

20 addition, outreach to determine if there were any

21 uses beyond the existing uses that were identified

22 that were planned for the foreseeable future. And

23 based on the response from that, we determined that

24 the existing uses are the uses that are occurring in

L.A. REPORTING (312) 419-9292

1 the system. They're the attainable uses, and so

2 that's how we settled for -- that's how we settled

3 the attainability issue.

MS. DEXTER: You didn't do any

5 analysis beyond what's been planned for already to

6 see if anything beyond that is attainable?

MR. SULSKI: We didn't do anything

8 beyond what is planned for the foreseeable future,

9 making that inquiry.

MS. DEXTER: Question 19: Is IEPA

11 aware of water skiing taking place any where on the

12 CAWS or the Lower Des Plains?

MR. SULSKI: I'm aware of one incident

14 that I observed.

MS. DEXTER: Where was that?

MR. SULSKI: That was on the Calumet

17 Sag Channel somewhere around the Little Calumet,

18 where the Little Calumet River starts. One incident

19 that I saw. I'm not aware of any others.

MS. DEXTER: Question 20: In the

21 analysis of habitat conditions -- I'm sort of

22 changing gears here -- for aquatic life on Page 50

23 and 51 of the Statement of Reasons and in the Sulski

24 pre-filed testimony at Page 15, 16, and 17, it is

L.A. REPORTING (312) 419-9292

1 stating that habitat conditions are irreplaceable.

2 Is this the same -- are these the same sense of --

3 are they irreversible for the same reasons that you

4 described before?

MR. SULSKI: Yes. Well, in the

6 Statement of Reasons, the text on Page 58 and 17

7 talk about irreversible. The text on Page 51, 15,

8 and 16 talk about not reversible in the foreseeable

9 future. And so in the first case, the irreversible

10 are the things that I talked about. You're not

11 going to allow buildings to slump into the water.

12 And the second case not reversible in the

13 foreseeable future is where we talked about no one

14 has plans to upgrade the habitat to levels, you

15 know, that would be beyond what they are today that

16 we know of in the foreseeable future, or no one has

17 plans to install, you know, diving piers in the

18 Brandon Pool in the foreseeable future. So there is

19 a distinction there, and I hope that answered your

20 question.

MS. DEXTER: I think that's it.

MS. TIPSORD: All right. Let's take a

23 ten-minute break, and we'll go back on the record

24 with Exxon Mobil.

L.A. REPORTING (312) 419-9292

(Whereupon, a break was taken,

after which the following

proceedings were had.)

MS. TIPSORD: Several people have

5 asked me what time we're starting tomorrow. We're

6 going to start at 9:00 a.m., and we'll only go until

7 about 5:00 tomorrow. They do have a class in there

8 at 6:00 tomorrow night, and we'll have to carry all

9 this stuff out. So we'll probably need to wrap it

10 up a little after five.

And we're ready with Exxon Mobil.

MR. SAFLEY: Thank you, madame hearing

13 officer. My name is Tom Safley on behalf of Exxon

14 Mobil. And before getting into the questions, I do

15 need to correct a typo on the first page of our

16 pre-filed questions. It refers to the Upper Brandon

17 Island Pool segment, which would've been the Upper

18 Dresden Island Pool segment. I apologize for that.

19 At pages two and three of our pre-filed questions,

20 those questions have been asked and answered, so I'm

21 going to start on Page 4, Roman numeral two,

22 Question A1. And I'll -- in the interest of time --

23 try to move through these pretty quickly.

Question No.1: The Agency's

L.A. REPORTING (312) 419-9292

1 Statement of Reasons -- and I'll adhere at Page 16

2 -- states here that the Lower Des Plaines River was

3 modified from its original configuration to

4 accommodate shipping traffic and increased flow for

5 the Chicago Area Waterway System. Did the Agency --

6 this is expanding a little bit on the questions that

7 are written here. Did the Agency consider the

8 effect of its proposed water quality and

9 recreational use standards on shipping in the Lower

10 Des Plaines River?

MR. SULSKI: Did we consider it, yes.

MR. SAFLEY: Okay. Is the -- are the

13 Agency's conclusions based on those considerations

14 contained in the rulemaking proposal that was filed

15 with the Board?

MR. SULSKI: Well, our considerations

17 recognize that shipping is a use, that navigation

18 shipping is a use. So that's distributed through

19 all portions of the records. You know, if you want

20 I can maybe come up with a summary for you, but not

21 right at the moment.

MR. SAFLEY: Well -- and specific to

23 the Lower Des Plaines River, did the Agency conclude

24 that its proposed water quality standards or

L.A. REPORTING (312) 419-9292

1 recreational use standards would effect shipping in

2 the Lower Des Plaines River?

MR. SULSKI: We do not believe that

4 shipping will be impacted by our proposed standards.

MR. SAFLEY: Okay. And what's the

6 basis for that conclusion of yours?

MR. SULSKI: None of the water quality

8 standards or criteria that we're proposing would

9 have any bearing on ships or shipping or that.

MR. SAFLEY: What about recreational

11 uses?

MR. SULSKI: Recreational uses, we

13 propose uses that we believe will commence with the

14 types of navigation that occur in the various

15 reaches.

MR. SAFLEY: And I wanted to followup

17 on that point a little bit, specifically with regard

18 to some of the questions and answers when Stepan

19 Company's questions were going on earlier. And the

20 Agency testified -- my recollection is that the

21 Agency does not believe that recreation in the Lower

22 Des Plaines River will be adversely affected by the

23 shipping that also goes on in that channel. Is that

24 correct?

L.A. REPORTING (312) 419-9292

MR. SULSKI: That's correct for the

2 Upper Dresden Island Pool.

MR. SAFLEY: For the Upper Dresden

4 Island Pool.

MR. SULSKI: Yes.

MR. SAFLEY: Pardon me, for the Upper

7 Dresden Island Pool. And the Agency -- again, my

8 recollection is stated that at least part of the

9 reason for that conclusion was that there's a

10 shipping channel in the middle of the river, but

11 there are areas in the Upper Dresden Island Pool

12 that are not part of that shipping channel. Is that

13 correct?

MR. SULSKI: That's correct.

MR. SAFLEY: Did the Agency consider

16 the docking of barges when it was considering the

17 issue of the effect on recreation? Was it only

18 considering the traffic in the middle of the river?

MR. SULSKI: No, it's recognized that

20 fleeting and barging operations, floating,

21 off-loading, occur. But when I made the statement

22 that there appears to be sufficient areas for people

23 to recreate, I meant excluding those spots as well.

MR. SAFLEY: Okay. And that may have

L.A. REPORTING (312) 419-9292

1 been where I was unclear on your early testimony.

2 And just for the record, can you explain what you

3 mean by "fleeting operations?"

MR. SULSKI: Fleeting operations is

5 where a ship pulls up to load or offload materials.

MR. SAFLEY: What about -- what if --

7 what happens if a barge comes up the river prepared,

8 you know, with the intent of unloading and it can't

9 unload at that time because there's already

10 unloading occurring at whatever particular

11 facility's dock it's heading to, what happens to the

12 barge?

MR. SULSKI: I assume they wait until

14 they have space.

MR. SAFLEY: Okay. Did the Agency

16 consider that waiting with regard to all those in

17 analyzing the effect of shipping on recreation in

18 the Upper Dresden Island Pool?

MR. SULSKI: Well, that analysis

20 wasn't done specifically. However, I would go back

21 to my first statement that there are those

22 sufficient areas that would allow for recreation to

23 occur. I don't envision a barge waiting in an area

24 that's three or four feet deep in a tail water or

L.A. REPORTING (312) 419-9292

1 behind an island.

MR. SAFLEY: Would you agree that when

3 barge fleeting or loading is going on, barges are

4 moving outside the shipping channel that's running

5 down the middle of the river?

MR. SULSKI: I'm not sure how deep

7 exactly they -- what kind of depth they need to

8 maintain their float, maintain their --

MR. SAFLEY: Okay. And then would you

10 have the same answer if I was to reference the

11 assembly of barges into fleets? You know, to a

12 number of barges after loading or unloading is

13 completed to head back down the river? Would it be

14 the Agency's position that there still is sufficient

15 recreational area?

MR. SULSKI: Yes.

MR. SAFLEY: Despite needing room for

18 those activities?

MR. SULSKI: Yes.

MR. SAFLEY: Okay. Moving on to

21 Question B1, which is on Page 4. I think that some

22 of this question has been answered, but I'm going to

23 move to the last couple of lines of the question,

24 which references the percentage of shoreline in the

L.A. REPORTING (312) 419-9292

1 Upper Dresden Island Pool that is owned by industry

2 or city ownership versus public access land. Does

3 the Agency have any information on the percentage of

4 shoreline for the Upper Dresden Island Pool as far

5 as ownership between industrial owners, municipal

6 owners, private owners?

MR. SULSKI: Well, I don't have --

8 unless Scott can correct me if I'm wrong, but we

9 don't have it broken down into percentage of

10 shoreline owners. However, access doesn't

11 necessarily have to be from shore there. There's a

12 very large boat ramp and dock at I 55, and there's

13 no -- people aren't prohibited from going upstream

14 or getting into some of these side channels and

15 other waters that we talked about.

MR. SAFLEY: So you mean access for

17 boating in that circumstance?

MR. SULSKI: Correct.

MR. SAFLEY: Access for waiting might

20 be --

MR. SULSKI: Access for waiting is

22 possible. If you pull up into an area with a boat,

23 you can get out of the boat.

MR. SAFLEY: I think that our

L.A. REPORTING (312) 419-9292

1 Questions 2 from 4 to 5 has been answered. I'll

2 move on to Page 5, Question C1. And also on Page 6,

3 Question three at the bottom is a related question.

4 And again, trying to move through these quickly, has

5 the Agency -- well, let me just ask the question in

6 one, rather than trying to paraphrase it. Why is

7 the Upper Dresden Island Pool recreational use being

8 proposed as incidental contact recreation rather

9 than noncontact recreation? That's really the heart

10 of those two questions.

MR. SULSKI: We're just going --

12 you're not asking the question out of this, you're

13 just asking a question --

MR. SAFLEY: Well, I just -- I took

15 the last sentence of our C1, instead of trying to --

16 I'm trying to, in the interest of time, move forward

17 here. I can read the setup if it would be helpful.

MR. SULSKI: No, it's okay. I'm

19 sorry.

MR. SAFLEY: I'm just trying to...

MR. TWAIT: That was based on the

22 configuration of the waterway. As Rob said, there's

23 places to get small boats, and the availability of

24 the boat launch relative to the waterway.

L.A. REPORTING (312) 419-9292

MR. SAFLEY: And by the boat launch,

2 you mean the boat launch downstream --

MR. TWAIT: Downstream of the I 55

4 bridge.

MR. SAFLEY: On the other water bodies

6 in this rulemaking that are being designated as

7 noncontact recreation as opposed to incidental

8 contact, what is -- what different characteristics

9 are present in those other water bodies?

MR. SULSKI: In the noncontact

11 waterways?

MR. SAFLEY: Yes, the noncontact water

13 bodies.

MR. SULSKI: The noncontact -- the

15 only noncontact water body we have is the upper

16 reach of the Calumet River from Florence Avenue to

17 the lake.

MR. SAFLEY: Right.

MR. SULSKI: That's straight wall to

20 sheet-piling areas, all private property. Boats --

21 power boats just run up and back from the lake down

22 to the Little Calumet River through that zone.

23 There's not a boat launch that I know of like there

24 is on the Little Calumet, for example, or I 55.

L.A. REPORTING (312) 419-9292

MR. SAFLEY: Okay. But boats can

2 access that waterway in a similar way that they

3 access the Upper Dresden Island Pool, right?

MR. SULSKI: Boats can access that

5 waterway, but they can't wade there. It's a

6 deep-draft shipping channel.

MR. SAFLEY: At all locations?

MR. SULSKI: Vertical wall. That I'm

9 aware of, yes.

MR. SAFLEY: Okay. Our Question C2 is

11 more specific, and we'll hold that until the

12 specific questioning. I think our Question 3 at the

13 bottom of Page 5 and Page 6 was answered just a

14 little bit ago with regard to the statement on

15 Page 24 of the Agency's Statement of Reasons. So

16 moving on to our question, Roman numeral three,

17 Question 1 on Page 6, I'll read it in its entirety.

18 Incidental contact recreation. The Agency's

19 Statement of Reasons indicate that recreational use

20 surveys and other forms of research were conducted

21 during the UAA process to determine which specific

22 activities were taking place on the waterways and

23 need to be protected. How is this analysis

24 performed with regard to the Lower Des Plaines

L.A. REPORTING (312) 419-9292

1 River?

MR. TWAIT: This was -- I'd have to

3 refer to Attachment A, Page 7-22 through 47.

MR. SAFLEY: I'm sorry. Page 7 --

MR. TWAIT: 7-42 -- or 7-22 through

6 47.

MR. SAFLEY: And does that contain all

8 of the data on which the Agency relied with regard

9 to the -- this issue in the Lower Des Plaines River?

MR. TWAIT: Yes. The Agency did not

11 do any surveys like we did in the CAWS UAA.

MR. SAFLEY: Okay. And the Agency's

13 Statement of Reasons at Page 25 cites to Attachment

14 B at Page 111. Would the Agency agree that that

15 discussion does not relate to the Lower Des Plaines

16 River, it only relates to the Chicago Area Waterway

17 System?

MR. TWAIT: Yes. That's Attachment B?

MR. SAFLEY: Right.

MR. TWAIT: Yes.

MR. SAFLEY: Okay. We had some

22 trouble trying to -- just from the way it was

23 phrased in trying to figure out what the Agency

24 meant at that point. And I'm scrolling here --

L.A. REPORTING (312) 419-9292

1 pardon me -- to 7-22 to make sure I see what you

2 mean. Does this section at 7-22 to 7-47 include all

3 information on the dates and time that observations

4 regarding recreational use in the Lower Des Plaines

5 River were made?

MR. TWAIT: I don't believe we had any

7 additional information, so, yes.

MR. SAFLEY: Okay. So if the Agency

9 has the information about dates and times, it's

10 going to be in this document?

MR. TWAIT: I believe so.

MR. SAFLEY: And you're not aware of

13 any observation sheets or other notes that were

14 taken by observers that were within, you know, the

15 information was called from those and placed in the

16 document?

MR. TWAIT: No. Well, I take that

18 back. We did do -- the consultant talked to the

19 core of engineers and they talked about lockage of

20 recreational boats. But I do believe he talks about

21 that in here, but I don't know that I could site to

22 a specific page.

MR. ESSIG: It's 7-36.

MR. TWAIT: It's 7-35 and 36.

L.A. REPORTING (312) 419-9292

MR. SAFLEY: I'm just getting there.

2 Okay. And the table at 7-30 -- on Page 7-36, table

3 7-5 it's titled "Boat and Barge Passages to the

4 Illinois Waterway Locks in 2001." Does the Agency

5 have any information for any years, other than 2001,

6 on that, on the issue of lockage?

MR. TWAIT: Not that I'm aware of.

MR. SULSKI: We may have some

9 information upstream in Lockport in the CAWS UAA.

MR. SAFLEY: Okay.

MR. SULSKI: Or as part of the record

12 for the CAWS UAA. Part of the record. There is a

13 number of lockage data that was submitted and

14 included.

MR. SAFLEY: But as far as with regard

16 to the Lower Des Plaines River, the Agency doesn't

17 have anything beyond --

MR. SULSKI: Well, if they're coming

19 through Lockport, then --

MR. SAFLEY: Right. I understand

21 that. I think that our question, Roman numeral

22 three, number two on Page 6 has been asked and

23 answered. I think Question 3 has been asked and

24 answered. Question 4 on Page 7 begins: Security.

L.A. REPORTING (312) 419-9292

1 At Page 36 of its Statement of Reasons, the Agency

2 notes that recreational uses of the waterways and

3 issue in this rulemaking may be effected by special

4 homeland security issues that may apply to port

5 district properties. Has the Agency considered the

6 impact of security measures in place at facilities

7 in the Lower Des Plaines River would have on the

8 recreation in the waterway?

MR. SULSKI: We considered the issue.

MR. SAFLEY: And what was your

11 conclusion?

MR. SULSKI: Well, we considered it

13 with a meeting of the safety folks for which there

14 is a summary of that meaning in one of these

15 attachments. If somebody could find which

16 attachment that is while I finish the question, I'd

17 appreciate it. And these issues would apply

18 throughout the inland waterways.

MR. SAFLEY: Would -- I'm sorry. I

20 didn't mean to interrupt. Go ahead.

MR. SULSKI: No, that's all right.

22 The issues with respect to the Lower Des Plaines

23 would also apply in CAWS. That's why I'm making

24 that relationship. Although we didn't have a

L.A. REPORTING (312) 419-9292

1 specific meeting on the Lower Des Plaines, we did

2 have one in the CAWS UAA and the results would apply

3 to the Lower Des Plaines.

MR. SAFLEY: And that's what I was

5 going to follow up with. It was my understanding

6 that that meeting was regarding the Chicago Area

7 Waterway System.

MR. SULSKI: Yes, but a lot of the

9 discussions would involved the whole inland waterway

10 and involve the Coast Guard, et cetera.

MR. SAFLEY: And when you say the

12 "safety folks," who do you mean?

MR. SULSKI: Just let me tell you

14 that --

MR. SAFLEY: Sure.

MR. SULSKI: -- attachment JJ is the

17 minutes of the meeting at those safety posts. So

18 we're talking about the Coast Guard, Corp of

19 Engineers, Chicago Police Marine Unit, International

20 Port District. You'd have to look at the list of

21 individuals in attendance at that meeting.

MR. SAFLEY: Were facility

23 representatives with responsibility for security at

24 particular facilities along the water bodies invited

L.A. REPORTING (312) 419-9292

1 to the meeting?

MR. SULSKI: Not that I'm aware of.

MR. SAFLEY: Was a separate meeting

4 held with those security personnel?

MR. SULSKI: Not that I'm aware of.

6 If they were members of the SACK group, the results

7 of the safety meeting would've been brought to the

8 SACK group.

MR. SAFLEY: Moving on to our Question

10 5 on Page 7, the Agency notes that Page 37 of its

11 Statement of Reasons that existing recreational uses

12 in CAWS and Lower Des Plaines River were determined

13 from one, waterway surveys performed by UAA

14 contractors and stakeholders, two public input at

15 UAA and other public meetings, and three input or

16 numerous phone, letters, email, UAA website, and

17 other meeting inquiries. Has the Agency in its

18 rulemaking proposal -- or I would add separately

19 since the rulemaking began -- provided all written

20 documentation that resulted from these activities?

MR. SULSKI: I believe we have.

MR. SAFLEY: Okay. Would some of that

23 be some of the documents that were provided between

24 the last hearing and today?

L.A. REPORTING (312) 419-9292

MR. SULSKI: Yes.

MR. SAFLEY: Okay. Could we identify

3 those, which of those documents and admit them in

4 the record?

MR. SULSKI: Yes. While they're

6 looking, let me also tell you that I have listed

7 there Attachments A, B, J, K, L, and N as having

8 information pertinent to your question.

MR. SAFLEY: Great. And I'd just like

10 to clarify for the record which of the documents

11 that were admitted since the last hearing would fall

12 under these categories.

MS. WILLIAMS: There are -- in the

14 motion or the cover page that was submitted, they're

15 numbered eight, nine, and ten. Recreational surveys

16 to local government units and responses recreational

17 information pertaining to boat launches and other

18 recreational information, and recreational data from

19 2005 from the MWRD boat crew. Those are the last

20 three documents under IEPA's responses.

MR. SAFLEY: Okay. So then we'd be

22 correct that once -- now that we have those

23 documents, we have the body of written documentation

24 that was at the Agency's disposal?

L.A. REPORTING (312) 419-9292

MR. SULSKI: I believe so.

MR. SAFLEY: Thank you. Our Question

3 6 is more specific. We're going to hold on that and

4 actually all the way through Page 8, Page 9, of our

5 testimony -- pardon me -- of our questions. Up to

6 the top of Page 10 and Question 15 and all of that's

7 more specific and we'll hold that until later. I'm

8 going to start then with Roman numeral 4, Question

9 1, other questions relating to the proposal.

10 Question 1: On June 6, 2002, and July 18, 2002, the

11 Three Rivers Manufacturing Association, or TRMA,

12 submitted letters to the Agency regarding its

13 members' concerns related to the initial UAA process

14 and the state's effort to change the Lower Des

15 Plaines Waterway from secondary contact use to

16 general use.

Did the Agency ever respond to

18 these letters? And I think we established during

19 the last hearings that those letters are part of the

20 attachments to Attachment A to the Statement of

21 Reasons.

MS. WILLIAMS: Appendixes to the --

MR. SAFLEY: The appendixes to

24 Attachment A to the Statement of Reasons.

L.A. REPORTING (312) 419-9292

MS. TIPSORD: And we also -- I believe

2 we had admitted one of them as Exhibit 10 --

MR. SAFLEY: We also admitted one of

4 them as a separate exhibit and I don't recall the

5 number.

MS. TIPSORD: Exhibit 10.

MR. SAFLEY: Okay. Now that we've

8 identified those letters, did the Agency provide a

9 response to those letters?

MR. TWAIT: I don't know if the Agency

11 ever provided a written response to those letters.

12 The issues raised were taken into account, and if

13 any issues remain, I'm sure we can address any of

14 those.

MR. SAFLEY: And I didn't want to take

16 the time to go through each of the three letters

17 here in -- you know, in detail. But rather, you

18 know, to address them as they, kind of -- as issues

19 kind of come up throughout the rulemaking. But that

20 was the next question here. If the Agency is not

21 responsive to those letters, can the Agency provide

22 a response to the issues raised in these letters.

23 And what I'm hearing from you, Mr. Twait, is the

24 Agency did take them into account, or at least your

L.A. REPORTING (312) 419-9292

1 understanding is the Agency took the letters at

2 least to some extent into account in formulating the

3 rulemaking proposal, but did not ever provide any

4 kind of written response to that your aware of?

MR. TWAIT: That I'm aware of, yes.

MR. SAFLEY: Okay.

MR. TWAIT: However, a letter could've

8 gone out under Toby's name. I don't know.

MR. SAFLEY: Okay. So you don't have

10 any copies of any written response to those? Okay.

11 Our Question No. 2 is more specific, and we'll hold

12 it until later.

MS. WILLIAMS: Can --

MR. SAFLEY: I'm sorry.

MS. WILLIAMS: Can we -- in the

16 interest of being able to respond to that question

17 when we get back to it, can we ask in that Question

18 2 what is a --

MR. SAFLEY: Yeah, that's -- and

20 pardon me, that is a typographical error. That

21 should have been Illinois Association of Wastewater

22 Agencies, IAWA. I apologize. I should've made that

23 correction.

MS. WILLIAMS: That's okay.

L.A. REPORTING (312) 419-9292

MR. SAFLEY: And I think our Questions

2 3, 5, and 6 have been asked and answered. Four may

3 or may not be too specific. I guess I can go ahead

4 and ask it we can decide whether it falls within the

5 scope of what we're doing now or whether it should

6 be addressed later when we're getting into specific

7 waiter quality standards.

And the question as written is:

9 Other than Midwest Generation and the MWRDGC, has

10 the Agency in its rulemaking proposal discussed the

11 economic impact to dischargers to the CAWS in the

12 Lower Des Plaines and how long it may take for those

13 dischargers to obtain, install, and test control

14 equipment necessary to comply with these rules.

MR. TWAIT: No, I don't believe so.

MR. SAFLEY: And I realize we've

17 talked about the economic impact already to some

18 extent. Does the -- did the Agency take into

19 consideration or analyze at all the time? Again,

20 how long it would take for dischargers to obtain,

21 install, and test controls?

MR. TWAIT: No. The only -- based on

23 a proposal, the only entity that commented on

24 needing additional time was MWRD.

L.A. REPORTING (312) 419-9292

MR. SAFLEY: Okay.

MR. TWAIT: So we did not build it in

3 anywhere else.

MR. SAFLEY: Okay. I think those are

5 all of our general questions right now. Thank you.

MS. TIPSORD: Then we start to the

7 more specific, and that starts, again, with you,

8 Mr. Safley, and IERG.

MR. SAFLEY: Yes, ma'am. Let me flip

10 through those questions, please.

MS. TIPSORD: More specific being now

12 we're going to start talking about the standards and

13 that type of stuff. And please, if you have a

14 question that goes in with where we're at, you don't

15 have to wait for your opportunity or your chance.

16 You can ask it so that we can keep -- like, if we're

17 talking about disinfection, let's talk about

18 disinfection all at once. If we're talking about

19 thermal, let's talk about thermal all at once, if

20 possible.

MR. SAFLEY: Again, Tom Safley on

22 behalf of the Illinois Environmental Regulatory

23 Group, and the majority of our questions were

24 general, and/or have already been asked and answered

L.A. REPORTING (312) 419-9292

1 in the course of other questioning. And actually, I

2 think there are only two questions left of IERG's

3 pre-filed questions that have not been asked and

4 answered. The first would be Question 7 on Page 5,

5 and I'll just read the question as written. It is

6 our understanding that significant portions of the

7 CAWS and Lower Des Plaines River currently may not

8 meet the proposed thermal and dissolved oxygen water

9 quality standards. Has the Agency evaluated the

10 water bodies to determine whether they currently

11 meet the proposed thermal and dissolved oxygen water

12 quality standards?

MR. TWAIT: Yes. I believe they do

14 not meet the proposed standards.

MR. SAFLEY: Okay. And would that be

16 true of the entire area -- pardon me -- the entire

17 area of these water bodies that the Agency has

18 proposed be affected by this rulemaking?

MR. TWAIT: I don't have specific --

20 well, could you be more specific?

MR. SAFLEY: Well, you just made the

22 broad statement that you do not believe that these

23 water bodies meet the thermal and dissolved oxygen

24 limits that the Agency has proposed. My first

L.A. REPORTING (312) 419-9292

1 question in response to that was, you know, that's a

2 pretty broad statement. Do you mean all of the

3 water bodies from the North Shore to the I 55

4 bridge, or are there exceptions to that conclusion?

MR. TWAIT: I'm sure there are

6 exceptions to that.

MR. SAFLEY: Do you have any specific

8 information on which water bodies the Agency's

9 concluded are or are not in compliance with the

10 proposed standards?

MR. ETTINGER: Excuse me, Counsel, I

12 think it would be helpful in regard to this question

13 to break down thermal and dissolved oxygen.

MR. SAFLEY: Sure.

MR. ETTINGER: Because I think

16 different segments violate different things.

MR. SAFLEY: That will be perfectly

18 fine.

MR. SULSKI: And we're going to have

20 to tag team between Scott and myself.

MR. SAFLEY: Sure. And I apologize, I

22 should've stated. I -- whomever of the Agency

23 employees who would like to answer the question, I

24 certainly don't mean to restrict. Let's just --

L.A. REPORTING (312) 419-9292

1 let's start with thermal.

MR. SULSKI: Well, I think that we

3 have to limit it to what was asked -- how the

4 waterways were assessed.

MR. SAFLEY: And that --

MR. SULSKI: That's in accordance with

7 general use standards and sometimes secondary

8 contact standards. That's how the original

9 assessment was done. The contractors looked at how

10 these waterways meet general use, or in some cases

11 secondary contact standards. And that's how the

12 assessment was done.

MR. SAFLEY: Okay. And that is

14 important. My -- you know, the question is -- that

15 we had asked was: Has the Agency evaluated the

16 water bodies to determine whether they currently

17 meet the proposed standards, not whether they meet

18 the secondary contact standards or the general use

19 standards. So has the Agency undertaken an

20 evaluation of these water bodies with reference to

21 the standards that are proposed in this rulemaking?

MR. SULSKI: And the simple answer

23 would be no.

MR. SAFLEY: Okay. Might there be

L.A. REPORTING (312) 419-9292

1 situations with the information that the Agency has

2 that it can draw conclusions based on the

3 evaluations it has done, even though those

4 evaluations were not specifically targeted to the

5 proposed standards?

MR. SULSKI: Yes.

MR. SAFLEY: Okay. And does the

8 Agency have any information where -- or

9 documentation or statements, you know, that reflect

10 how it might -- may have drawn those conclusions?

MR. SULSKI: Yes, and here's where

12 Scott and I will tag team.

MR. SAFLEY: Okay.

MR. SULSKI: Let's start with

15 temperature in the CAWS system.

MR. SAFLEY: Great.

MR. SULSKI: There's an indication

18 that there's temperature limitations in the south

19 branch of the Chicago River and the Upper reach to

20 the Chicago Sanitary Ship Canal.

MR. SAFLEY: And when you say --

22 pardon me. When you say there are temperature

23 limitations, you mean that currently it's your

24 understanding those water bodies do not comply with

L.A. REPORTING (312) 419-9292

1 the proposed rules?

MR. SULSKI: It's my guess that they

3 wouldn't comply with the proposed temperature

4 standards.

MR. SAFLEY: Okay. And that's based

6 on these other surveys that were conducted, albeit

7 under a different standard, but there is some

8 information there.

MR. SAFLEY: Correct.

MR. SAFLEY: Okay. And, Mr. Twait,

11 did you want to add to that?

MR. TWAIT: Yes. Exhibit 15 has some

13 appendix, table two, that lists different stations

14 on Cicero Avenue, Lockport, and Jefferson Street

15 that give you -- or that give some statistics on

16 temperature.

MR. SAFLEY: Okay.

MR. TWAIT: And you could make some

19 references from that.

MR. SAFLEY: So that would be part of

21 the information that you're talking about that you

22 could draw from to try to evaluate whether the water

23 -- whether at least the water bodies that were

24 referenced in that exhibit meet -- currently meet

L.A. REPORTING (312) 419-9292

1 the proposed standards?

MR. SULSKI: Correct.

MR. SAFLEY: Okay. Is there any

4 information that the Agency has on these surveys

5 that's not contained, either at that location in the

6 record or at other locations in the record?

MR. SULSKI: Not that I am aware of.

MR. SAFLEY: Okay.

MR. TWAIT: There's some additional

10 information at the I 55 bridge that Midwest

11 Generation generates. I don't believe that any of

12 that is part of the record.

MR. SAFLEY: Is it information that

14 the Agency has in its possession?

MR. TWAIT: I do believe we have quite

16 a bit of it.

MR. SAFLEY: Is that something the

18 Agency intends to put into the record?

MS. WILLIAMS: We could. Do you want

20 to describe how many pages you think we're talking

21 about?

MR. TWAIT: Each year a report is

23 generated, and I'm guessing it's an inch thick. Is

24 that accurate?

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: I think you're right,

2 yeah.

MR. SAFLEY: Are those reports

4 something that the Agency reviewed in the context of

5 this rulemaking?

MR. TWAIT: No, I do not believe that

7 we reviewed it for compliance of the proposed

8 standard.

MS. FRANZETTI: And Mr. -- if I can

10 just interject?

MR. SAFLEY: Sure.

MS. FRANZETTI: Those reports are

13 submitted to show that we are staying in compliance

14 with the adjusted standard that is applicable at the

15 I 55 bridge or there is a compliance point --

MR. SAFLEY: Right.

MS. FRANZETTI: -- among others that

18 we have to meet at the I 55 bridge.

MS. TIPSORD: And, Ms. Franzetti, I'm

20 sure you're asking the Agency if that's correct.

MS. FRANZETTI: Yes. Does the Agency

22 agree with that?

MS. WILLIAMS: Sounds good.

MR. SULSKI: Go ahead, Scott.

L.A. REPORTING (312) 419-9292

MR. TWAIT: The Lower Des Plaines

2 report, I'm told, did use the data from the I 55

3 bridge, and I believe the dates were from '89 to

4 2000.

MR. ESSIG: '99 to 2000.

MR. TWAIT: '99 to 2000.

MR. SAFLEY: Okay. So part of that

8 data would be there. But if you wanted to compare

9 it to more recent data, we'd have to get ahold of

10 more recent reports. Okay. And I'll -- I'm not

11 necessarily asking right now, I just ask if the

12 Agency intended to put it in. I'll have to think

13 about whether it's something that I want to ask for.

MS. WILLIAMS: Not at this time.

MR. SAFLEY: Okay. That's fine. And

16 we're on the issue of temperature, and we talked --

17 we were talking about the Chicago River and the

18 Upper Chicago Sanitary and Ship Canal. Moving along

19 from those locations, I guess let's head -- keep

20 heading downstream to the lower part of the Chicago

21 and Sanitary Ship Canal. Does the Agency have any

22 information on whether that area currently meets or

23 would be in violation of the proposed temperature

24 standard?

L.A. REPORTING (312) 419-9292

MR. TWAIT: As I said before, it's --

2 some of the monetary data can be found in

3 Exhibit 15.

MR. SAFLEY: Okay. So that would

5 encompass that area as well?

MR. TWAIT: Yes.

MR. SAFLEY: Okay.

MR. TWAIT: There's -- there are

9 several stations that the Agency looked at that is

10 compiled in that attachment.

MR. SAFLEY: Okay. And I'm sorry,

12 what's the number for that again?

MR. TWAIT: Exhibit 15.

MR. SAFLEY: Exhibit 15.

MS. TIPSORD: The attachment to

16 Mr. Yoder's testimony that we put in as an exhibit.

MR. SAFLEY: Okay.

MS. TIPSORD: Attachment 2 to

19 Mr. Yoder's testimony.

MR. SAFLEY: Well, I don't have that

21 right in front of me.

MS. FRANZETTI: Do you need it? I

23 have it.

MR. SAFLEY: Yeah, if you have it.

L.A. REPORTING (312) 419-9292

1 I'll move on. Moving on to dissolved oxygen --

MS. TIPSORD: I'm sorry. Mr. Harley

3 has a follow up.

MR. HARLEY: Before moving on to

5 dissolved oxygen, for purposes of this question I'd

6 like to refer to the Calumet River, the Grand

7 Calumet River, the Little Calumet River, and the Cal

8 Sag Channel, collectively as the Calumets. On the

9 issue of temperature, is there any evidence that

10 you're aware of of thermal exceedances or potential

11 thermal exceedances in the Calumets?

MR. SULSKI: Not that I'm aware of.

MR. HARLEY: So we can basically take

14 thermal issues and put them aside for purposes of

15 the Calumets at this time?

MR. SULSKI: To my knowledge, yes.

17 You know, I'd have to run through the CAWS UAA

18 report Attachment B, but to the best of my

19 knowledge, right now the temperature was not a

20 factor that they identified in the Calumets, as you

21 described them.

MR. HARLEY: Okay. Thank you.

MR. ETTINGER: Can I just follow up on

24 that? Is it safe to say that temperature's not a

L.A. REPORTING (312) 419-9292

1 factor under the current proposal anywhere where the

2 temperature's not being effected by Midwest

3 Generation discharges?

MR. ANDES: Can you say that a little

5 louder?

MR. ETTINGER: Why don't we read the

7 question back because I'm not sure I can say it the

8 same way I read it the first time.

(Whereupon, the record was read as

requested.)

MR. TWAIT: There are some other heat

12 sources out there, like, such as the refineries and

13 some other cooling towers. Downtown Chicago they

14 have some cooling towers, but I don't know that -- I

15 don't know how much effect they have on the

16 receiving stream.

MR. ETTINGER: Okay. Unfortunately,

18 the names don't allow me to compact them into

19 something as cute as the Calumets, but looking at

20 the North Shore Channel, is there any reason to

21 believe that the North Shore Channel would violate

22 the thermal standard that's proposed?

MR. SULSKI: Not that I am aware of.

MR. ETTINGER: Looking, now, at the

L.A. REPORTING (312) 419-9292

1 north branch of the Chicago River, is there any

2 reason to believe that that would violate the

3 thermal standard that's proposed?

MR. SULSKI: Not that I'm aware of.

MR. ETTINGER: And looking at what you

6 call the Chicago River is there any reason to

7 believe that it would violate the thermal standard

8 that you've proposed?

MR. TWAIT: Not that I'm aware of.

MR. ETTINGER: Okay. Then the south

11 branch of the Chicago River receives the Midwest

12 Generation fixed discharge. Looking at that portion

13 of that that's north of the fixed discharge, is

14 there any reason to believe that that area would

15 violate the thermal standard that you proposed?

MR. SULSKI: Well, potentially,

17 because in -- perhaps in low-flow conditions where

18 water's not moving either way and there's a thermal

19 low going in both directions. And we haven't

20 quantified what the total loading is in the downtown

21 area from all the building -- office building

22 cooling systems.

MR. ETTINGER: Thank you.

MS. FRANZETTI: Just a followup

L.A. REPORTING (312) 419-9292

1 question on that. Were all of your answers also

2 based on considering your winter thermal proposed

3 standards as well as your summer?

MR. TWAIT: I believe so, since we

5 took into account the District's effluent

6 temperature of the Calumet facility and the north

7 side facility.

MS. FRANZETTI: Okay. And by took

9 into account, you mean the standards are based on

10 the effluent temperatures of the District plant?

MR. TWAIT: We based our background on

12 the Route 83 Cal Sag -- or no, Sanitary and Ship

13 Canal facility and also the effluent temperature of

14 the District, and chose the least restrictive of the

15 two.

MS. TIPSORD: Okay. Mr. Safley.

MR. SAFLEY: Sure. Then moving on to

18 dissolved oxygen, are there portions of any of the

19 water bodies affected by this -- or proposed to be

20 affected by this rulemaking that the Agency believes

21 are -- would not currently comply with the proposed

22 dissolved oxygen standards?

MR. SULSKI: Yes, there are waterways.

MR. SAFLEY: Okay. And which ones are

L.A. REPORTING (312) 419-9292

1 those?

MR. SULSKI: They would include the

3 North Shore channel -- now, I'm speaking from memory

4 from what I know, the CAWS UAA. And that would be

5 the north shore channel, the north branch, the

6 Chicago River south branch, Sanitary -- Chicago

7 Sanitary and Ship Canal. There are not issues that

8 we know of in the Calumet River or Lake Calumet

9 anywhere upstream of the O'Brien lock. We would --

10 there may or may not be issues in the Little Calumet

11 River and in the Grand Calumet River. There may be

12 some short-lived issues in the Cal Sag Channel,

13 Calumet Sag Channel, although we'd have to evaluate

14 that with respect to the new standards or the

15 proposed standards. That's about as far as I can

16 take you.

MR. SAFLEY: Okay. And before I move

18 on to the rest, you mentioned the UAA for the CAWS.

19 Is that where any data on dissolved oxygen --

MR. SULSKI: Yes.

MR. SAFLEY: -- would be located?

MR. SULSKI: Yes.

MR. SAFLEY: Is there any data the

24 Agency has on dissolved oxygen levels in those water

L.A. REPORTING (312) 419-9292

1 bodies that's not contained in that UAA?

MR. SULSKI: There probably is that is

3 just submitted as a routine matter by the District

4 to us as a part of other reporting or agreement

5 requirements on the ambient water quality

6 monitoring, for example. However, I don't think any

7 of that data would paint a different picture than is

8 already presented in the reports in the data that is

9 part of the record.

MR. SAFLEY: Would that other data

11 have been something that the Agency reviewed in

12 connection with this rulemaking?

MR. SULSKI: Only if it was included

14 in --

MR. SAFLEY: Okay. And then moving on

16 -- oh, I'm sorry. I didn't mean to interrupt.

MR. HARLEY: As to dissolved oxygen,

18 you used the terms "short-lived" in reference to the

19 Cal Sag channel. Could you describe a little bit

20 more what you meant by "short-lived?"

MR. SULSKI: Well, what I meant by

22 short-lived is frequency in duration. Frequency --

23 or not frequency, but duration of the exceedance, or

24 in this case, the -- falling below the limit.

L.A. REPORTING (312) 419-9292

1 Mostly associated with storm water, storm events.

2 In general, the DO is good except when we have storm

3 events.

MR. ETTINGER: You --

MR. HARLEY: And is that also true in

6 the Little Calumet and Grand Calumet?

MR. SULSKI: Yes.

MR. HARLEY: Thank you.

MR. ETTINGER: I'm just extending that

10 to the other CAWS waters that you spoke of. Could

11 you characterize what degree that's an ongoing

12 condition, or something that just happens as a

13 result of CSO events and the other CAWS regions that

14 you mentioned.

MR. SULSKI: Besides the Calumet, the

16 North Shore channel and that. We have two unique --

17 relatively unique water bodies in CAWS, which would

18 include the Upper North Shore Channel, and the south

19 -- work of the south branch, which are channeled by

20 limited or no flow. So the D.O. problems are

21 exacerbated in those two regions. Other than that,

22 once you get downstream of the wastewater treatment

23 plants, the D.O. is generally good until we have a

24 storm event and the sewers start to overflow and

L.A. REPORTING (312) 419-9292

1 then we get a drop, sometimes to zero, and then it

2 recovers in a couple of days or so. Depending on

3 the weather, it may take one or two or three days to

4 recover.

MR. SAFLEY: And we've been discussing

6 the Chicago Area Waterway System. Who should I ask

7 about the dissolved oxygen in the Lower Des Plaines

8 River?

MR. TWAIT: The contractor -- we were

10 comparing it to the general use standard, and the

11 contractor compared it to the general use standard,

12 and we're not proposing the general use standard, so

13 I haven't looked at the data very extensively. But

14 it looks like it would attain the proposed standard.

MR. SAFLEY: And you --

MR. TWAIT: And I'm basing that on

17 looking at the graph on 2-65 and the figure on 2-70

18 of Attachment A.

MR. SAFLEY: And would that apply to

20 both the Upper Dresden Island Pool and the Brandon

21 Pool?

MR. TWAIT: Yes.

MR. SAFLEY: And with regard to the

24 Upper Dresden Island Pool and the Brandon Pool, is

L.A. REPORTING (312) 419-9292

1 there any information that the Agency reviewed

2 regarding dissolved oxygen concentrations that's not

3 contained either in the UAA or elsewhere in the

4 Agency's rulemaking proposal?

MR. TWAIT: No, I don't believe

6 there's -- well, no. Once again, we have some D.O.

7 generation from the Midwest Generation reports, and

8 those are in the same documents with the

9 temperature.

MR. SAFLEY: Okay.

MR. TWAIT: But other than that, no.

MR. SAFLEY: Okay. That, I think,

13 concludes my Question 7. The only other question

14 that may not have been fully answered is Question 19

15 on Page 7, and I'll just read it as written: Does

16 the Agency have field data that it collected whether

17 it was provided by dischargers, relating to fish

18 populations and/or water temperature in the Chicago

19 Area Waterway System?

MR. SULSKI: Yes.

MR. SAFLEY: Okay. Have we discussed

22 all that?

MS. WILLIAMS: Can we please break

24 this -- I would like to break this question down,

L.A. REPORTING (312) 419-9292

1 though, because I'm not sure that --

MR. SAFLEY: Okay. Sure.

MS. WILLIAMS: Because of the and/or.

MR. SAFLEY: Sure that's fine. Fair

5 enough. How about relating to fish populations in

6 the Chicago Area Waterway System, have we discussed

7 all of the information that the Agency has on that

8 issue?

MR. SULSKI: We have -- the answer to

10 the question is yes, we have field data relating to

11 fish populations and/or water temperature in the

12 CAWS. We didn't collect the data ourselves.

MR. SAFLEY: Okay. But you have data

14 that was supplied to you?

MR. SULSKI: So that breaks up your

16 question. But we've been supplied data, correct.

MR. SAFLEY: Okay. And is there any

18 of that data that either -- that's not included in

19 the rulemaking proposal or that we haven't otherwise

20 discussed that -- essentially that we don't know

21 about?

MR. ESSIG: The Illinois Department of

23 Natural Resources.

MR. SAFLEY: Okay.

L.A. REPORTING (312) 419-9292

100

MR. ESSIG: They have fish data for

2 2006.

MR. SAFLEY: I'm sorry, Miss Diers is

4 opening the box and I can't hear you.

MS. DIERS: Sorry.

MR. ESSIG: I'm sorry. From the

7 Illinois Department of Natural Resources, we did

8 look at the data for 2006.

MR. SAFLEY: Okay. And that data is

10 not contained in the Agency --

MR. ESSIG: We do have it with us. I

12 think we brought it today.

MR. SULSKI: When we spoke about the

14 MWRD data earlier.

MR. SAFLEY: Right, right.

MR. SULSKI: Yeah.

MR. SAFLEY: And that's what I was

18 trying to figure out. For example, the IDNR data,

19 what data might the Agency had had at its disposal

20 that we were not aware of previously, or had not

21 been discussed previously. If we could introduce

22 that as an exhibit.

MS. TIPSORD: Oh, man, it's too late

24 in the day for this little print.

L.A. REPORTING (312) 419-9292

101

MS. WILLIAMS: But it's on one page.

MS. TIPSORD: It's on one page. I

3 have the Illinois Department of Natural Resources

4 Lake Michigan Tributary Fish Population Survey,

5 July 27 through 31st, 2006, which I will mark as

6 Exhibit 31 if there's no objection. Seeing none, it

7 is Exhibit 31. Get out the magnifying glasses.

8 Mr. Safley, go ahead.

MR. SAFLEY: Sure. I'm just trying to

10 make out the small print here.

MS. FRANZETTI: Mr. Safley?

MR. SAFLEY: Yes, ma'am? Oh, no, I'm

13 fine, thanks.

MS. FRANZETTI: I'm not as young as

15 Mr. Safley.

MR. SAFLEY: Well, I'm using my

17 bifocals. This appears to me to be a printout of a

18 spread sheet. Was anymore -- any further

19 information provided to you at all by the Department

20 of Natural Resources along with this, or just this

21 one?

MR. ESSIG: No, just the spreadsheet.

MR. SAFLEY: Okay. Well, I'm not

24 going to ask to go through that right now. That

L.A. REPORTING (312) 419-9292

102

1 takes care of fish populations in the CAWS. Any

2 additional information regarding fish populations in

3 the Lower Des Plaines River?

MR. SULSKI: Not that we're aware of.

MR. SAFLEY: Okay. Putting all of

6 them together -- and we've talked about the water

7 temperature data and the fish population data -- did

8 the Agency take the data into account including this

9 new Illinois Department of Natural Resources data in

10 developing the proposed thermal standards in this

11 rulemaking?

MR. TWAIT: The Agency looked at the

13 ambient data from several of the sites to pick its

14 quote, unquote, "background temperature" along with

15 the district's effluent temperature. So in that

16 respect, the Agency used the temperature. We did

17 not look to see whether it was violated in other

18 sections of the CAWS or the Lower Des Plains River.

MR. SAFLEY: Well, to follow up on

20 that, I had been under the impression that the

21 effluent from the MWRD was the sole source for

22 determining background, and now that's not the case.

23 There was this is some other data used to determine

24 the background thermal?

L.A. REPORTING (312) 419-9292

103

MR. TWAIT: Correct. For the

2 non-summer months -- well, let's start out by saying

3 for the summer months we used Chris Yoder's thermal

4 report. For the non-summer months, he was looking

5 -- or we used a quote, unquote "background

6 temperature," and we originally started out by using

7 Route 83 bridge on the Sanitary and Ship Canal as

8 our background.

We got some comments from MWRD

10 that their discharge was warmer in the winter than

11 the background that were -- from the ambient

12 station. And so we made determinations since they

13 were the majority of the river, or the source of the

14 river, that we would use their effluent in

15 conjunction with the ambient station as a quote,

16 unquote, "background temperature."

MR. SAFLEY: Okay. What about the

18 fish data? Did the Agency use this DNR or any of

19 the other fish data that it was provided in

20 determining its thermal standards, proposed thermal

21 standards?

MR. SAFLEY: No. We used -- Chris

23 Yoder came up with a representative species list for

24 the Lower Des Plaines River. For the Upper Dresden

L.A. REPORTING (312) 419-9292

104

1 Island Pool, we used 27 species. For the CAWS,

2 along with Brandon Pool, with used eight species,

3 and then for the CAWS A waters we used the eight

4 species plus white sucker.

MS. WILLIAMS: Do you guys have

6 anything to add?

MS. TIPSORD: We have a followup

8 question in the back.

MS. BERKLAND: I wonder if by using

10 the -- MWRD's effluent temperature values for the

11 background in the non-summer months if you took into

12 effect cooling that might take place after their

13 discharge went into the waterway?

MR. TWAIT: We did. The station that

15 we chose for background is downstream of MWRD's

16 Stickney facility. During the wintertime, their

17 discharge is cooler than -- or no, I'm sorry. It's

18 warmer than the ambient station, and during some of

19 the other non-summer months in the spring/fall,

20 their discharge is cooler than the ambient station.

MR. ETTINGER: I'm sorry. I was going

22 to wait on this because we have some questions on

23 the same thing, but I was confused by your

24 conjunction with -- could you explain what was

L.A. REPORTING (312) 419-9292

105

1 averaged with what to get the background temperature

2 during the various winter months? Or how did you

3 calculate the background temperature for January?

MR. TWAIT: Well, what we did is we

5 started with the ambient station, and we had those

6 into period averages. Sometimes the period average

7 was two weeks, sometimes it was the entire month.

8 And then we asked MWRD to provide their effluent

9 data in the same format with the same period

10 averages, and then we took the least stringent of

11 the two-day assess for each period average.

MR. ETTINGER: So you took the higher

13 of the Route 83 and Sanitary and Ship Canal or the

14 Metropolitan Water Reclamation District temperature?

MR. TWAIT: Yes.

MR. ETTINGER: Thank you.

MS. TIPSORD: Mr. Safley.

MR. SAFLEY: Thank you. Does the

19 Agency believe that the information that has --

20 either in this DNR table or otherwise regarding fish

21 that were caught or surveyed in the water bodies is

22 relevant to the determination of thermal limits for

23 these water bodies?

MR. TWAIT: Yes, I think it's

L.A. REPORTING (312) 419-9292

106

1 relevant, and I believe that Mr. Yoder went through

2 and determined what he thought would be a

3 representative aquatic species list. When he did

4 that, he was basically doing it for the Brandon

5 Pool, and we continued that through the entire CAWS

6 waterway. He did not come up with a representative

7 aquatic species -- well, I take that back. He came

8 up with -- he came up with options for the Agency to

9 use, and the Agency used eight species for the --

10 for the Brandon Pool, and then all the way through

11 the CAWS for the CAWS B waters. And then for the

12 CAWS A waters, we used the eight species plus white

13 sucker.

MR. SAFLEY: Let me ask the question a

15 little bit different way. Did this data from DNR

16 effect, at all, the eight species that were chosen,

17 or was it all taken into account, or was it -- did

18 it not play a part -- did these survey results not

19 play a part in the Agency's determination of thermal

20 limits for the Chicago Area Waterway System?

MR. ESSIG: I do not believe that they

22 were used for the development of that.

MR. SAFLEY: Okay. That's what I'm

24 trying to understand. Mr. Twait, I had asked if you

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1 thought this data was relevant, and you said yes.

2 And I'm just trying to understand what you mean by

3 that in connection -- in linking that up with the

4 eight species that were chosen.

MR. TWAIT: I'll agree with Howard

6 that this data was not used specifically. Chris

7 used his expertise to come up with a representative

8 aquatic species list. So this data was not used in

9 that determination.

MS. TIPSORD: Chris being Chris Yoder?

MR. TWAIT: Chris Yoder.

MR. SAFLEY: And is it the Agency's

13 view that Mr. Yoder's approach to developing that

14 species list is the preferred method to determine

15 what the thermal level should be for that water

16 body?

MR. TWAIT: I can only answer that

18 that is how we did it. So that's -- so, yes.

MR. SAFLEY: I think those -- that

20 concludes what I wanted to ask with 19, and all the

21 rest of our questions have been answered. So thank

22 you.

MS. WILLIAMS: Can I just ask -- I'd

24 like to ask a followup.

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MR. SAFLEY: Oh, sure.

MS. WILLIAMS: Because I'm possibly a

3 little confused myself. He's the biologist. Can

4 you guys explain for the record, the white sucker

5 was added to one of the lists, I believe, we talked

6 about already. Was there any -- was that just a

7 professional judgment decision, or was there data

8 that was looked at to determine whether that was an

9 appropriate addition or not?

MR. SMOGER: I can speak to my input

11 in that. I referred to the fish data in Attachment

12 B, the CAWS UAA, to look for a present absence of

13 white sucker. So I did refer to those data, fish

14 data, in Attachment B to do that.

MS. WILLIAMS: Thank you.

MR. ESSIG: I also checked IDNR data

17 from the Des Plains River at I-55 to the Wisconsin

18 state line from 1978 through 1990. I also looked at

19 their Des Plaines report in 2003, and eight site

20 samples on the Upper Des Plaines River as well as

21 some tributaries, Hickory Creek and Jackson Creek.

MS. WILLIAMS: For what purpose?

MR. ESSIG: And that was specifically

24 for the presence of white suckers and central stone

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1 rollers, and I think that was it.

MR. SAFLEY: Are those IDNR --

MR. ESSIG: And also IDNR fish data

4 from the Kankakee River in 2005.

MR. SAFLEY: Is all of that IDNR data

6 contained in the record?

MR. ESSIG: No, it is not.

MR. SAFLEY: Can we get copies?

MR. ESSIG: Yes.

MR. ETTINGER: I'm sorry. I gather

11 you found that white sucker were present at some of

12 all of those sites?

MR. ESSIG: In the Des Plaines basin,

14 yes. They're present in the Kankakee, but rather

15 rarely, and what I found is the two sites on the

16 Kankakee closest to Des Plaines.

MS. TIPSORD: Anything further? All

18 right. Then let's go, I believe, to Midwest

19 Generation. Ms. Franzetti.

MS. FRANZETTI: If I can have just a

21 minute to get --

MS. TIPSORD: You sure can. I think

23 we're at, like, Page 12 of your questions. Is that

24 correct?

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MS. FRANZETTI: I thought we were --

2 I'm -- like Mr. Diamond, my pagination's off from

3 yours, but roman five.

MS. TIPSORD: Five.

MS. FRANZETTI: Regulatory proposal.

MS. TIPSORD: Yes. Then we're on the

7 same page figuratively, if not literally.

MS. FRANZETTI: That's what I like to

9 hear.

MS. DEXTER: What page is that?

MS. TIPSORD: Page 12.

MS. DEXTER: Thank you.

MS. TIPSORD: And we'll go for about

14 another 15 or 20 minutes before we go for a little

15 longer break.

MS. FRANZETTI: Ready for me to begin?

MS. TIPSORD: Yes.

MS. FRANZETTI: Okay. These questions

19 get into just -- just to put them in a little bit of

20 context here, these questions get into the actual

21 language in the proposed rules and in trying to both

22 understand the language as well as evaluate whether

23 or not the language might be improved upon. So with

24 that, with respect to Part 301, definition section

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1 of the proposed rules. There's a proposed

2 definition in Section 301.307 for the Lower Des

3 Plaines River, and the question is that the term

4 Lower Des Plaines River is commonly used to refer to

5 the stretch of the Des Plains River from the

6 confluence of the Chicago Sanitary and Ship to the

7 -- all the way down with the confluence of the

8 Kankakee River. And in this UAA proceeding, we're

9 defining the southern extent of the Lower Des

10 Plaines River as the 1-55 bridge. So has the Agency

11 considered that its abbreviated definition may cause

12 confusion, given its more limited scope and,

13 perhaps, instead another defined term should be used

14 to identify this more limited stretch of the river?

MR. SMOGOR: Well, given that there's

16 no body of water on standardized maps that has the

17 name Lower Des Plaines River, the use of the word

18 "lower" becomes pretty much whatever you want to

19 define it as. So given that, our definition is

20 pretty clear. We believe that calling that stretch

21 Lower Des Plaines River is valid.

MS. FRANZETTI: Okay. Moving on to

23 the next question, Part 302, the language of

24 proposed Section 302.402's purpose, entitled

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1 purposes, and the language of proposed

2 Section 303.204, Chicago Area Waterway System and

3 Lower Des Plaines River waters are very similar.

4 Can you explain what is the intended difference

5 between these two proposed regulations?

MR. TWAIT: I think the purpose of

7 302.402 is to indicate that the water quality

8 standards apply to the segments designated in

9 303.204. And the purpose of 302.304 is cross

10 referenced as the standard in sub part B of 302.

MS. TIPSORD: You meant 303.204,

12 didn't you?

MR. TWAIT: Yeah.

MS. WILLIAMS: I think the simple

15 answer is primarily they're intended for the ease of

16 the reader to cross reference in the numeric

17 standards where to find the waters to which they

18 apply, and in the description of uses to cross

19 reference the numeric standards that apply to those

20 waters. I mean, I think that's the primary

21 intention.

MS. FRANZETTI: So when you say the

23 cross reference, you mean just define what section

24 of the rules will you find the proposed use

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1 designation for a given area like CAWS A, CAWS B?

MS. WILLIAMS: I think that's what I

3 mean, yeah.

MS. FRANZETTI: Okay.

MS. WILLIAMS: Primarily.

MS. FRANZETTI: All right.

MS. WILLIAMS: I believe if you -- in

8 303 -- we're just talking about 402 right now,

9 right? Okay. That's fine. If you want, I was

10 going to just add, but I don't think it's part of

11 this question. In 303.304, I think we are also

12 describing the generic use designations that don't

13 fall under aquatic life or recreational in addition

14 to the cross reference purpose of that.

MS. FRANZETTI: Oh. So 30 -- in part

16 303.204 is supposed to identify what uses other than

17 the level of aquatic life or recreational use are

18 also protected as part of the use designation for

19 these water bodies?

MS. WILLIAMS: Oh, was that -- yes,

21 the answer was yes if that was a question. Sorry.

MS. FRANZETTI: I think B2 has been

23 covered, and moving on to C, Part 303 use

24 designations. Why did the Agency elect to use these

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1 water bodies specific use designations? And by that

2 I mean Chicago Area Waterway System aquatic life use

3 A, Upper Dresden Pool, use designation, versus the

4 nonspecific classification approach used in the

5 existing Part 303 subpart B use designations.

MR. SULSKI: We tried to follow the

7 original organization of the text, and just

8 basically modified the text in a strike and

9 underline mode. So we just followed the format of

10 the original text, and that's how it worked out.

MS. FRANZETTI: I think you're miss

12 understanding my question. It's the difference

13 between -- your proposed use designations

14 incorporate in the use designation the specific

15 water body that to which the use designation

16 applies. So in other words, in your use

17 designation, like in 303.230, it's the Chicago Area

18 Waterway System aquatic life use A waters. So that,

19 for example, if you moved on to do a UAA on the

20 Kankakee, I would expect that your proposed aquatic

21 life use designation would be Kankakee River and

22 then something on whatever you're going to call its

23 aquatic life use designation.

Whereas the existing Illinois

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1 classification system has used more generic

2 terminology, like general use and secondary contact,

3 which apply to more than one water body. So this

4 is, at least in my humble opinion, a divergence from

5 the type of use classification system state

6 regulations have contained, and so I'd like to know

7 why you chose this different course.

MS. WILLIAMS: I don't think that was

9 the intent, and we'd be happy to look at language

10 that drafts it differently. I think the intent --

11 right now all that 303 does with regard to secondary

12 contact is send you to a list of waters in a

13 separate place, 303.441, to find out where they

14 apply. Does that -- do you understand what I'm --

15 so it seemed, just to us, that it was more logical

16 to include those waters with the description of the

17 use. But that's certainly not the only way to do

18 it.

MS. FRANZETTI: Counsel, I -- and

20 actually I'm not raising the question as to the

21 listing of the waters in -- for example, I'm looking

22 at 303.230, which is the Chicago Area Waterway

23 System aquatic life use A waters. My question's

24 really not directed to the listing of the waters to

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1 which that use designation applies that's set forth

2 there in subparagraphs A through F, but rather to

3 the title that of the use designation, or the use

4 classification, being limited to Chicago Area

5 Waterway System, rather than simply aquatic life use

6 A waters of which these specific ones, at least at

7 the outset, are proposed to fall into or be

8 classified as.

And let me -- if it may help,

10 because I'm not -- I'm not trying to confuse

11 anybody. I'm just trying to understand the

12 underlying rational. Is it the rational that is

13 expressed in the quote from the Statement of Reasons

14 in my next question that says on Page 24 of the

15 Statement of Reasons the Illinois EPA states as

16 follows: When the Board is faced with a proposal to

17 update the one size fits all use designations for

18 the rest of the state, IEPA expects there to be no

19 need to open these uses and standards designed to

20 apply specifically to these waters.

MS. WILLIAMS: Is that the reasoning?

22 Is that what you're asking.

MS. FRANZETTI: Yeah. Did you want to

24 just do use designations for these waters so that

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1 they are specific to them and then if the use

2 classification system is changed in the future,

3 these will be sitting out there by themselves and

4 won't have to change anymore?

MS. WILLIAMS: I'm sure that's part of

6 what went into the organization as well, keeping it

7 free from being tied into other sections that may or

8 may not change in the future.

MS. TIPSORD: Miss Franzetti, if I

10 may, I guess I'm a little confused too from the

11 outset. The Chicago Area Waterway designation use

12 A, by putting the title of the water in it, you can

13 nervous use that use designation for the Mackinaw

14 River or for the Vermillion River. So, I mean, if

15 the intent is that you're never ever going to give

16 another stretch of river the same designated use, or

17 same types of uses, it is a divergence from what

18 we've done in the past, but if that's your intent

19 that these are site-specific and you would not ever

20 put another segment of a river in those use

21 designations, is that your intent? I mean, that

22 these would be, in effect, site-specific for these

23 sections of the rivers?

MR. SULSKI: That's understanding. My

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1 understanding from the get-go is that we were going

2 to deal with the secondary contact waterways, get

3 rid of them, and find out through the UAA process

4 what we could -- what their potential was and on and

5 on through the UAA process. And to deal with them

6 as a distinct set of waterways and reaches

7 irregardless of what happens to the rest of the

8 state. So don't think that these are going to be

9 carried on to some other portion of the state or

10 that some other portion of the state is going to be

11 dragged into these. They're stand-alone

12 regulations.

MS. FRANZETTI: I'm going to jump over

14 my Question B just, in part, based on that answer

15 and go to C first. Why didn't the Agency instead

16 propose aquatic life use A and aquatic life use B

17 use designations that are nonspecific and can apply

18 to other waterways in the state that may be similar

19 to the water bodies involved in this rulemaking in

20 order to minimize the potential for multiple use

21 designations in the future that are duplicative or

22 overlapping in their scope and intent?

MR. SULSKI: On the response that came

24 from upstairs was that -- and I didn't necessarily

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1 disagree -- is that these secondary contact

2 waterways are unique enough from any of the other

3 waterways in the state that we can -- we can and

4 should proceed in that fashion. Carving them out.

MS. FRANZETTI: I'm sorry. When you

6 say from "upstairs," could you be a little more

7 specific?

MR. SULSKI: Toby said so.

MS. FRANZETTI: Okay. And so is it

10 the -- if I can just ask a followup on that, so it's

11 the Agency's position that, for example, the Upper

12 Dresden Pool is unique unlike any other waters in

13 the state?

MR. TWAIT: I think that would be fair

15 to say, because when we were in the UAA groups, we

16 were trying to find a reference site and there were

17 lots of members on the Board or in the group that

18 were opposed to any type of reference site because

19 this was just a unique system.

MS. FRANZETTI: And the same would be

21 true of all of the various -- I'm not going to go

22 through each one of them -- all of the various water

23 segments that are part of the CAWS?

MR. SULSKI: Yes.

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MS. FRANZETTI: Okay. Going back to

2 my Question B that I skipped, isn't there the

3 possibility that planned future revisions to the

4 existing Illinois use classification system may

5 support a different approach to these waters -- and

6 I'll just keep going -- and if so, why should they

7 be excluded from potential revisions based on

8 further consideration of what the updated Illinois

9 use classification should be?

MR. TWAIT: I think if these waters

11 merit revisions, they can certainly be revised.

12 However, the proposal was written so that if general

13 use is so divided or changed in some way that these

14 rules would not have to be revised.

MS. FRANZETTI: You see, I'm actually

16 -- I don't follow that. If you, for example, just

17 take away the designation Chicago Area Waterway

18 System from your title for aquatic life use A

19 waters, how is that hurting whatever you may decide

20 to do or not do with respect to the general use

21 classification in the future, including splitting it

22 into a couple of categories?

MS. WILLHITE: I can make a comment.

24 Marcia Willhite, Illinois EPA.

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MS. TIPSORD: Who has been previously

2 sworn.

MS. WILLHITE: Yes, but it's been

4 awhile. We are in the process of looking at a

5 tiered approached to aquatic life uses, and that is

6 in its very initial stages. I anticipate that at

7 some point in the future, we will get to that point.

8 What the framework will be is hard to anticipate at

9 this point, but we were very committed to dealing

10 with these waters, with like Rob mentioned, had

11 been, kind of, separate from the other use

12 classification in the state since pretty much the

13 beginning. So we wanted to go ahead and deal with

14 those. Once we see a framework in the future, you

15 know, we'll see how these might possibly fit in.

16 But since we don't have that framework available to

17 us at this time, this is what makes sense to us at

18 this point.

MS. FRANZETTI: Okay. Moving on to D,

20 did the Illinois EPA consider the approach taken by

21 the state of Colorado, which has a use

22 classification category for waters that are

23 wastewater dominated or effluent dependant, e.g., a

24 high percentage of the flow is wastewater.

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MR. SULSKI: Not that I'm aware of.

MS. FRANZETTI: Let me broaden that a

3 little bit. Did the Agency consider any other

4 state's approach to how you expand your existing use

5 classification system or create new use

6 classification categories?

MR. SULSKI: We did. The contractors

8 did. The contractors, you know, relied on a lot of

9 the work that was done in Ohio, and they based a lot

10 of their decisions on how they would base them if

11 they were in Ohio, and then we added in our final,

12 you know, proposal we had to bring that back to what

13 are -- what we were charged to do and to reframe it

14 in the context of what our regulations look like and

15 like that.

So yes, those other systems were

17 considered, but we were charged with dealing with

18 the system, not -- as Marcia said, taking the whole

19 state and, you know, starting with an entire tiered

20 system like as used in other states and waiting

21 until that's done before we deal with these

22 waterways. These waterways were at hand, and we

23 dealt with them, I guess, the best we could.

MS. FRANZETTI: So, Mr. Sulski, I'm

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1 not sure I understand your answer. I recognize your

2 consultants may have looked at other states and how

3 they identified and described particular types or

4 categories of uses, but are you saying that in the

5 end, the Agency came up with this language separate

6 and apart from patterning it after another state's

7 use classification system? I think that's what

8 you're saying, but I'm not sure.

MR. SULSKI: Right. Well, we

10 patterned it after what the consultant's

11 recommendations were for what the aquatic life

12 potential and recreational potential of these

13 waterways were. So they were patterned after that,

14 and they brought -- of course the consultants

15 brought in their experience from other systems. And

16 so I guess what I'm trying to say is they were

17 considered to some extent, but really we looked at

18 what were the potentials of the waterways and how

19 could we best address that with our current system

20 and knowing that we're trying to deal with just

21 these waterways, and we ended up with a proposal

22 written as it is, as you see it.

MS. FRANZETTI: Moving on to E,

24 doesn't this approach increase the likelihood that

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1 as the Illinois EPA reviews existing use

2 designations in other water bodies of the states,

3 such as in the context of TMDL's that my identify

4 the need for a use designation change, it will then

5 propose additional water-body specific use

6 classifications to the Board?

MR. TWAIT: No. There's nothing

8 preventing someone from going to site-specific

9 standards for any waters in the state, and for TMDL,

10 those are site-specific.

MS. FRANZETTI: My question is,

12 though, in doing a TMDL, isn't it sometimes the case

13 that the conclusion is the use designation of the

14 water body that's wrong, that's too high, and so it

15 leads you to just what you did here, a UAA. And if

16 you conclude that, yes, in fact, one of the UAA

17 factors has been satisfied, will we then be seeing

18 for that particular river, or whatever, salt creek,

19 aquatic life use D proposed use? I mean, you're

20 setting a precedent here of specific use

21 classifications that is unusual.

MS. WILLHITE: Yeah. Can I respond to

23 that?

MS. FRANZETTI: Yes.

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MS. WILLHITE: The sequence is that

2 you identify the use designation for the water body,

3 you set the standards that protect those uses, you

4 assess against that, those standards, to see if

5 they're meeting those standards, and if they are

6 not, then, potentially, you request down the route

7 of a TMDL. Doing a TMDL does not result in changing

8 the use designation.

MS. FRANZETTI: Well, in this state it

10 may because we pretty much just have one use

11 designation for the rest of the waters in this state

12 and that's general use.

MS. WILLIAMS: I'd like to --

MS. WILLHITE: Well, I agree that we

15 are looking at the issue, specifically for aquatic

16 life use, of the fact that we have used general use

17 over the years and there are other approaches to

18 utilize. But the way we are approaching identifying

19 and compared waters is against the standards that

20 are in place and the use designations that are in

21 place currently.

MS. WILLIAMS: I would like to add one

23 other point specific to this proposal, which is that

24 legally the Agency is obligated to review

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1 periodically any designations that do not reflect

2 full aquatic life or recreational potential under

3 the Clean Water Act. Therefore, we have an

4 obligation that's different with regard to the

5 secondary contact water bodies than we do with any

6 other general use issue that would come up where

7 they are not -- they are designated as being able to

8 attain the full goals of the Clean Water Act.

MS. TIPSORD: Mr. Ettinger, you had a

10 followup?

MR. ETTINGER: I was just going to ask

12 if down the road, four or five years from now, in

13 the context of developing an overall use designation

14 system we find that there's a whole lot of other

15 waters for which aquatic life A or aquatic life B

16 specified the proper criteria, would there be

17 anything that would stop the Agency or this Board

18 from striking the Chicago area part of that title

19 and using those classifications?

MS. WILLHITE: No.

MR. TWAIT: I don't think so.

MR. ETTINGER: Thank you.

MS. FRANZETTI: Well, that's all and

24 good, Mr. Ettinger, but that's not what they said in

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1 their Statement of Reasons that they don't want to

2 change these down the road. Moving on, why isn't it

3 preferable to first propose an updated side-wide use

4 classification rulemaking, rather than proceed first

5 with an approach to adding new use classifications

6 to the Illinois water quality standards regulations?

MS. WILLIAMS: I think that's what I

8 was partly what I was trying to answer with my

9 clarification of the legal requirements. We have a

10 legal requirement on these waters that we don't have

11 for the rest of the state.

MS. FRANZETTI: And we've had that

13 legal requirement since when?

MS. WILLIAMS: A long time.

MS. WILLHITE: Aren't you glad we're

16 getting to it?

MS. FRANZETTI: Well, one could also

18 submit that one could wait until you're finished --

19 you've already started work on a use classification

20 system. I'll skip over G. I will ask H just, at

21 least, to see if you've considered it. Given the

22 water body's specific nature of these proposed use

23 designations, is this rulemaking accurately

24 characterized as a regulation of general

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1 applicability under Illinois law?

MS. WILLIAMS: Yes.

MS. FRANZETTI: And your basis?

MS. WILLIAMS: I have reviewed the

5 Environmental Protection Act, and while the

6 regulation is certainly not statewide in

7 applicability, it's not, by my analysis,

8 site-specific. That's my conclusion. It's

9 certainly a bit of a hybrid, and we discussed that

10 when we decided to recommend holding the hearings in

11 Joliet and Chicago rather than Joliet and

12 Springfield. But I do still think there's a

13 requirement to hold hearings in two parts of the

14 state. That was the analysis that was done. That

15 was the reason for the analysis.

MS. FRANZETTI: Is there precedent in

17 other states for taking this type of water

18 body-specific approach to creating a revised use

19 classification system?

MR. SULSKI: I don't know.

MS. FRANZETTI: The proposed placement

22 of these water bodies specific proposed use

23 designation within subpart B, which is entitled

24 "nonspecific water use designation," does not seem

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1 appropriate and may create confusion. Has the

2 Agency considered these issues and concerns?

MS. WILLIAMS: I would say that --

4 that I think that title of that section is

5 misleading, because that's where all of the general

6 use waters are described in that subpart as well.

7 So I'm not sure. I guess the answer is we don't

8 think it creates confusion beyond what may already

9 be there by the way it's set up.

MS. FRANZETTI: Well, Counsel,

11 wouldn't you agree that general use is a nonspecific

12 water use designation?

MS. WILLIAMS: But -- I'm sorry. Yes,

14 it's nonspecific as is secondary contact public and

15 includes processing any of the designations that

16 apply beyond a specific site, site-specific to an

17 individual facility or their general area.

MS. FRANZETTI: Okay. Moving on to

19 Section 303.204 --

MS. TIPSORD: Miss Franzetti, let's go

21 -- it's 10 after 5:00. Let's go ahead and take a

22 little longer break. Let's try and be back here by

23 6:00 and we'll go, then, until about 8:00 o'clock,

24 between 7:30 and 8:00.

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(Whereupon, a break was taken,

after which the following

proceedings were had.)

MS. TIPSORD: Thank you, everybody,

5 for your prompt return. I really do appreciate it.

6 I know it's kind of hard, but thank you.

MS. FRANZETTI: We were at Question 3.

8 I think, though, in a prior answer before we broke,

9 I think Miss Williams might have answered 3A, and is

10 it basically that the purpose of Section 303.204 is

11 to list all of the uses that are to be protected by

12 this use -- by all of the use designations that

13 apply to the CAWS and the Lower Des Plaines?

MS. WILLIAMS: Yes. That, and to

15 cross reference where you would look for the numeric

16 criteria that --

MS. FRANZETTI: Water quality

18 standards. Okay. In this language, again in

19 302.204, what use designation is intended to be

20 described by the language, quote, "The highest

21 quality aquatic life and wildlife that is attainable

22 limited only by the physical condition of these

23 waters and hydrologic modifications to these

24 waters."

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MR. SULSKI: Well, the potential --

2 the aquatic life potential described that are

3 commensurate to the habitat that is there.

MS. FRANZETTI: Okay. I think -- let

5 me ask it a little differently, Rob. Is what

6 section -- proposed Section 303.204 is attempting to

7 do by that language is to narratively state that for

8 the aquatic life uses that are separately stated in

9 different sections, the intent is for each use

10 classification to try and achieve the highest use --

11 aquatic use possible based on the conditions --

MR. SULSKI: That's correct.

MS. FRANZETTI: -- in those types of

14 waters?

MR. SULSKI: That's correct.

MS. FRANZETTI: So that's what this is

17 saying?

MR. SULSKI: Yes.

MS. FRANZETTI: It's really not

20 stating a use designation, it's stating a goal of

21 the aquatic life uses that have been designated in

22 the other sections you've proposed?

MR. SULSKI: That sounds good to me.

MS. FRANZETTI: Okay. Then let's skip

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1 over -- I think that answers subpart I of that

2 question. Well, and then my next question is: Is

3 this language properly included in a use definition,

4 or is it more suited to being the intended goal of

5 the proposed aquatic life use designations for these

6 waterways?

MR. SULSKI: Well, in general terms,

8 it can -- you know, in general terms, it applies

9 here in 303.204. When you get to this separate use

10 designations, then, you know, it applies in more

11 specific terms.

MS. FRANZETTI: Well, let me move on

13 to the triple I there, question, because that's a

14 concern. You know, what is the regulatory effect of

15 this language, and let me just go on to read the

16 rest of the question. In other words, does the

17 highest quality aquatic life that is attainable

18 limited only by physical conditions and hydrologic

19 modifications change from year-to-year under this

20 type of use definition, or does it somehow modify

21 the aquatic use designations set forth in proposed

22 Sections 303.230, 303.235, and 303.237?

MS. WILLIAMS: I think this is two

24 questions. I mean -- right?

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MS. FRANZETTI: Well, it is two

2 questions, but I'm trying to give an example about

3 what I'm concerned about as the potential regulatory

4 effect of the language you've chosen to include in

5 303.204.

MR. SULSKI: Well, let me just read

7 this question again, because --

MS. WILLIAMS: Can we just take the

9 first part, "does it change from year-to-year under

10 this type of use definition?"

MS. FRANZETTI: Okay.

MR. SULSKI: Well, I'm trying to be

13 more general. I don't -- no. The answer, I think,

14 is no.

MS. WILLIAMS: I think is no, right.

16 And then the next part, "does it somehow modify the

17 aquatic use designations set forth."

MR. SULSKI: And the answer to that, I

19 think, is no.

MS. WILLIAMS: Okay.

MS. FRANZETTI: Okay. Which leads us

22 to the next question: Why is this language

23 necessary when the aquatic life use designations

24 separately described in 303.230, 303.235, and

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1 303.237 specify the proposed aquatic life use

2 designations? I'm not trying to be difficult, but

3 legal interpretation says you've got to give meaning

4 to the words used in the regulations, and I don't

5 see what added meaning or why this kind of language

6 in 303.240 is necessary, given the specific aquatic

7 life use designations proposed in the other three

8 sections.

MS. WILLIAMS: I mean, I think -- I

10 suspect you could replace it with a reference to

11 those sections, if that's what -- if someone

12 proposed changing it to simply say something like

13 the aquatic life use that's applicable somewhere

14 else, yeah.

MS. FRANZETTI: Okay. Moving on to C,

16 what uses are intended to be protected by the

17 language "commercial activity," including navigation

18 and industrial water supply uses and, quote,

19 "language?" Obviously navigation?

MR. SULSKI: Yeah, navigation.

MS. FRANZETTI: And obviously

22 industrial water supply use, but what other -- is

23 there other commercial activity, because it just

24 says "including."

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MR. SULSKI: Well, it might be access

2 to the water. Access to the waterways whereby, you

3 know, a company is located on the waterways. So

4 access would be another example.

MS. FRANZETTI: Is it meant to protect

6 the existing industrial uses of the waterway?

MR. SULSKI: Well, in as much as water

8 quality standards are set to not -- so that we don't

9 interfere with those uses, but keep in mind our

10 other goals, use goals. I don't know how else to

11 respond to that.

MS. FRANZETTI: Okay. All right. I

13 think the second part of this has been asked and

14 answered. Let me -- just a moment on D to see if

15 that's been asked and answered earlier today. I

16 think that's been asked and answered. Moving on to

17 -- down in D, D1 has been asked. E, aquatic life

18 use designations, I think that's -- we've already

19 covered that based on your filed list last week of

20 exactly which factors apply to which water body

21 segments. So moving on from number one, let me

22 change number two to cover the -- instead make

23 reference to your newly-filed information, and give

24 me just a moment. I'm trying to find where that is,

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1 which I'm not succeeding in doing.

The Agency filed last week with

3 the Board -- I'm going to hold it up so you can see

4 it -- a three-page chart that was entitled "UAA

5 Factor Applications to CAWS and Lower Des Plaines

6 River." This chart sets forth which of the UAA

7 factors for each segment of the CAWS and the Lower

8 Des Plaines River involved in this rulemaking? The

9 Agency found to basically apply to those segments,

10 correct?

MR. SULSKI: Yes.

MS. FRANZETTI: And I think this

13 morning it was established that the only one for

14 which none of the six UAA factors were found to

15 apply was for Upper Dresden Pool aquatic life use,

16 correct?

MR. SULSKI: Correct.

MS. FRANZETTI: Okay.

MS. TIPSORD: For the record, that's

20 Exhibit 29.

MS. FRANZETTI: Exhibit 29. Thank

22 you. Sorry about that. I'm moving down to Question

23 4, but give me a moment to see that 1, 2, and 3 are

24 already covered. I know, Mr. Sulski, you have

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1 already testified that you consider D.O. and high

2 temperatures to be major water quality constraints,

3 or I think you've also called them major stressors,

4 and I'll stand corrected. I'm not sure you have

5 answered A there, 4A. Identify each of the reaches

6 for which Illinois EPA has concluded that high

7 temperatures are a major water quality constraint

8 and identify what attainable uses are not being met

9 in those segments. And I think the latter part of

10 that's been done by your chart.

MR. ETTINGER: I'm sorry. Is there a

12 question there, or a description?

MS. FRANZETTI: The question is:

14 Which of the reaches has the Illinois EPA concluded

15 that high temperatures are a major water quality

16 constraint?

MR. SULSKI: That would be --

MS. WILLIAMS: So that's different

19 than the question of which reaches we think would

20 not attain our proposal, right?

MS. FRANZETTI: Right. No, no, no.

22 I'm trying to focus on --

MS. WILLIAMS: Thank you.

MS. FRANZETTI: -- what your position

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1 is in terms of where is temperature a major stressor

2 in this waterway.

MR. SULSKI: Okay.

MS. FRANZETTI: Is it the whole thing,

5 or is it only certain segments?

MR. SULSKI: Now, there's been several

7 evaluations done of temperature. One compared

8 temperatures against second -- existing secondary

9 contact standards, they compared them against

10 general use standards, and now we did a comparison

11 using our proposed method of standards, and we

12 viewed --

MS. FRANZETTI: Your proposed thermal

14 standards?

MR. SULSKI: Proposed thermal

16 standards.

MS. FRANZETTI: In this rulemaking?

MR. SULSKI: Correct. So with all

19 that information in mind, I would say that the south

20 branch of the Chicago River, the Upper Chicago

21 Sanitary Ship Canal. I would have to defer to Scott

22 for the Lower Des Plaines.

MR. TWAIT: Probably both of those,

24 both segments of the Lower Des Plaines.

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MS. FRANZETTI: So the rest of the

2 Chicago Sanitary and Ship Canal and the Upper

3 Dresden Pool?

MR. TWAIT: And Brandon.

MS. FRANZETTI: And Brandon Pool.

6 Sorry. I skipped over that. Now, is that -- I

7 think what I want to understand is how you're using

8 the term "major water quality constraint," or when

9 you use the term "major stressor" if that's meant to

10 mean -- is that meant to mean the same thing?

MR. SULSKI: Constraint and stressor,

12 yes.

MS. FRANZETTI: Okay. Are you using

14 it -- based on your last answer, it seems you are

15 using it to mean that it's a parameter that is not

16 currently in compliance with your proposed water

17 quality standard in this rulemaking.

MR. SULSKI: Using it in terms of that

19 it is -- was identified as a parameter that will

20 prevent -- that is preventing the aquatic -- the

21 existing aquatic life from meeting the potential

22 aquatic life which we've outlined in the designated

23 use, in the proposed designated use.

MS. FRANZETTI: I thought -- in

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1 testimony in January, I thought the Agency was

2 acknowledging that, for example, in the Chicago

3 Sanitary and Ship Canal it was the lack of habitat

4 that was preventing that segment from meeting the

5 aquatic life use goal of the Clean Water Act, not

6 temperature. So now I'm confused.

MR. SULSKI: Well, we're talking about

8 aquatic life use that we're proposing for aquatic

9 life use B or aquatic life use A, whichever the case

10 may be that in themselves are short of the Clean

11 Water Act goal. We already recognize that. We're

12 talking about attaining those designated uses that

13 we're proposing, let alone a Clean Water Act goal

14 use. We haven't proposed a Clean Water Act goal

15 use.

MS. FRANZETTI: Right. Okay. I

17 understand. So what you're telling me is that

18 you're using the term "major constraint" to mean

19 that if your proposed aquatic life uses for these

20 segments that you've identified are adopted by the

21 Board, they will immediately, basically, be impaired

22 for those uses due to temperature, correct?

MR. SULSKI: Correct, and D.O.

MS. FRANZETTI: So they will go on the

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1 303 D list immediately, correct?

MR. SULSKI: They would have to be --

3 correct. They'd have to be assessed first with

4 respect to the new standards. Then after

5 assessment --

MS. FRANZETTI: But based on the data

7 that you've reviewed and are testifying to in

8 response to my questions, you basically already have

9 concluded that these water bodies would be impaired

10 under these proposed use designations based on

11 temperature?

MR. SULSKI: That's a fair assessment

13 on your part.

MS. FRANZETTI: And would they be

15 impaired for any other reason?

MR. SULSKI: Dissolved oxygen and

17 temperature are the main parameters. We also have

18 identified some other parameters that may have some

19 relatively lesser concerns, but may trigger --

MS. FRANZETTI: And if I could just

21 stay with this for another moment to make sure I

22 understand, and assuming that all of these segments

23 are put on the 303 D list, then they will become

24 candidates -- well, not candidates -- at some point

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1 there will have to be TMDLs done on each of these

2 segments, correct?

MR. SULSKI: Unless something happens

4 in the interim that removes those stressors.

MS. FRANZETTI: Okay.

MR. ETTINGER: May I just ask this:

7 Is there anyone here on the panel who's in charge of

8 determining how to list things on a 303 D list and

9 is familiar with the guidances for when you put

10 something on the 303 D list?

MR. ESSIG: In terms of making the

12 assessment, yes, I've done those. But in terms of

13 the actual decision of when to actually put

14 something on the 303 D list, that's done by somebody

15 else.

MS. WILLHITE: I would add to that

17 that we have a methodology that's listed in each one

18 of our reports on how things get listed.

MR. ETTINGER: And there's a

20 complicated methodology and a USEPA guidance on five

21 categories as to when you list things. Is that

22 correct?

MS. WILLHITE: But specifically, in

24 our integrated report, for example, for 2006, our

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1 methodology for listing things on 303 D is

2 identified there, and will be also listed in the

3 2008 report.

MS. FRANZETTI: Okay. Now I'm

5 confused again. So is -- are there -- you know, as

6 part of the regulated sector, we're just -- we're

7 trying to understand what you've proposed and what

8 its affects are going to be. It's -- I'm not trying

9 to trick anybody, but I'm here -- you know, in

10 answer to my questions, it is that temperature's a

11 major constraint. It's what would keep those

12 segments from meeting the use designation you're

13 proposing. Now, what beyond that is needed to

14 decide that it would, therefore, be impairing this

15 water body? You're saying it's preventing it from

16 meeting its designated use. Isn't that what the 303

17 D list contains, water bodies that don't meet their

18 use designation?

MS. WILLHITE: Yes. It's -- and

20 you've simplified part of it, essentially what the

21 decision is. But when I say a methodology, it

22 describes how the data were considered in the

23 assessment that led to that decision that there was

24 an impairment, and therefore it was going to be

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1 listed on the 303 D list.

MS. FRANZETTI: But hasn't -- as part

3 of this proceeding, I thought earlier today the

4 Agency testified that that they have looked at the

5 temperature data and concluded that these segments

6 will not meet the proposed thermal standards if

7 adopted. Is that correct?

MR. SULSKI: It's been done under the

9 context of a UAA. In other words, we've looked --

10 we've had the contractors look at all the available

11 data. They did a couple of cuts on comparing them

12 to benchmarks, secondary contact general use. They

13 said in their reports that here's were temperature

14 and D.O. and all the rest of the parameters sit and

15 the leading stressors on these systems in terms of

16 chemical are D.O. and temperature on some other

17 parameters, which actually fell away after we got

18 additional data from MWRD.

So that strips it down to

20 temperature and D.O. as the leading stressors. So

21 in the UAA context, they were identified and then

22 the next process was, you know, look at ways that we

23 can eliminate the stressors to what we're proposing

24 as attainable uses, and that's why we got them into,

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1 you know, supplemental aeration and flow

2 augmentation and temperature reduction all talked

3 about within the stakeholder process.

MS. FRANZETTI: Okay. Moving on to

5 4B, has the IEPA used a formal process of causal

6 analysis for determining what pollutants are

7 responsible for the waterway being biologically

8 degraded, such as EPA's 2000, quote, "stressor

9 identification guidance document, EPA 822 B 00/05,

10 the EPA Caddis, C-a-d-d-i-s, System or a recent

11 article on the subject by Suitor and others -- and

12 it's Suitor, GW, Roman 2, SM Kormier, K-o-r-m-i-e-r,

13 and SB Norton, 2007, Ecological Epidemiology and

14 Causal Analysis, Chapter 4 and GW Suitor second

15 edition, Ecological Risk Assessment, second edition,

16 Taylor and Francis, Boca Raton, Florida.

Any of those things been used by

18 the Agency to conduct a causal analysis for

19 determining which pollutants are responsible for the

20 waterway being biologically degraded?

MR. SULSKI: I don't believe that we

22 did it directly. The contractor, CDM or Novotany,

23 may have used these. I'm not sure. And to the

24 extent that these are incorporated into guidance --

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1 water quality criteria guidance, I mean, that's

2 possible. We just compared existing conditions or

3 conditions that need to be met by looking at the

4 water quality criteria guidance. That's how our

5 decision was basically made.

MS. FRANZETTI: Okay. And if any of

7 your two UAA contractors used any of this, it should

8 be cited in their references in their reports,

9 correct?

MR. SULSKI: It should be, yes.

MS. FRANZETTI: Okay. And so if I

12 understand you, in terms of any analysis performed

13 to reach the conclusion that temperatures and major

14 water quality constraints, it's really just

15 comparing the water data recording -- recording

16 temperature in the waterway and comparing it to your

17 proposed thermal water quality standard?

MR. SULSKI: Well, it's first looking

19 at the use designation related to habitat, and then

20 comparing, among other things, water quality in the

21 -- existing water quality, as well as existing

22 biological community quality et cetera. So

23 several -- several comparisons.

MS. FRANZETTI: Okay. Does it really

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1 come down to -- I think you mentioned earlier today

2 that based on your view, at least in the Upper

3 Des Plaines Pool, that the QHEI scores should result

4 in higher IBI scores. Is that your basis for

5 identifying temperature as a major constraint?

MR. SULSKI: The QHEI scores and the

7 general habitat assessment. So besides QHEI scores,

8 we're looking at these maps this morning. Compared

9 to the IBIs, there's a disparity there.

MS. FRANZETTI: In the Upper Dresden

11 Pool?

MR. SULSKI: In the Upper Dresden

13 Island Pool.

MS. FRANZETTI: Does that also exist

15 in the Brandon Pool?

MR. SULSKI: I have to look at the

17 numbers, and whoever can help me out quickest on

18 that.

MS. FRANZETTI: You know what, if --

MR. SULSKI: In the Statement of

21 Reasons, isn't there something that says that -- I

22 could be wrong, but I recollect that Brandon Pool

23 QHEIs are pretty level or even steven with what the

24 IBIs are.

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MS. FRANZETTI: I think so.

MR. SULSKI: Well, I'll have to look.

MS. FRANZETTI: At the Brandon Pool --

MR. SULSKI: It's close.

MS. FRANZETTI: Sorry. The poor court

6 reporter, we're both talking.

MR. SULSKI: That's all right.

MS. FRANZETTI: The Brandon Pool

9 QHEIs, those are down there in that low category of

10 poor numbers --

MR. SULSKI: Yes.

MS. FRANZETTI: -- that we've been

13 focusing -- the below 46. Nobody questions not

14 attaining aquatic life use goals of the Clean Water

15 Act. And so what you're saying is you think based

16 on recollection the IBI scores are commensurate with

17 the poor QHEI scores?

MR. SULSKI: Howard's going to have a

19 look.

MS. FRANZETTI: Okay.

MR. SULSKI: That's what I recollect.

MS. FRANZETTI: Okay. Becuase I

23 understand, then, where your evaluation of QHEI,

24 IBI, and observed habitat Upper Dresden lead you to

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1 conclude that you think there should be a better,

2 for example, fish community in Upper Dresden than is

3 there. But I don't follow it for Brandon if the

4 QHEI and the IBI scores are commensurate. They're

5 both pretty bad.

MR. SULSKI: They're both pretty what?

MS. FRANZETTI: Bad.

MR. SULSKI: Pretty bad.

MS. FRANZETTI: Yeah.

MR. SULSKI: Okay.

MS. FRANZETTI: So how is temperature

12 a major constraint that is not allowing Brandon Pool

13 to attain what you think is its attainable use?

MR. SULSKI: Well, this is based on a

15 new criteria that we're adopting, and a report that

16 says the existing criteria is garbage, it's lethal.

MS. FRANZETTI: Okay. So what you're

18 saying is that the -- you can't leave the existing

19 temperature water quality standard in place for the

20 aquatic life use B designation. It's not protective

21 of that use, correct?

MR. SULSKI: Correct.

MS. FRANZETTI: And it's the Agency's

24 opinion that its proposed thermal water quality

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1 standard is protective of aquatic life use B?

MR. SULSKI: Correct.

MS. FRANZETTI: And because existing

4 thermal levels in Brandon Pool are above your

5 proposed water quality standard, that's why

6 temperature is a major constraint in Brandon Pool?

MR. SULSKI: Correct.

MS. FRANZETTI: Okay. Now I

9 understand. And I think you've answered with that

10 C, D -- let's see. Well, let me ask E just to be

11 clear. Is it Illinois EPA's position that none of

12 the following are major water quality constraints in

13 the subject reaches, and that is: Lack of adequate

14 habitat, CSOs, non-point source urban runoff, and

15 flow alteration/modifications? I just want to be

16 clear whether we're just talking D.O., low D.O. and

17 high temperature are the only major water quality

18 constraints in the Agency's opinion.

MR. SULSKI: The lack of adequate

20 habitat is the basis in all the waterways, the use A

21 and use B waterways, for proposing a designated use

22 that falls below the Clean Water Act goal. So lack

23 of habitat is incorporated into the use. So then

24 once you have that use, then the question -- and

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1 correct -- I don't want to put questions in your

2 mouth, so the question becomes CSOs and non-point

3 source urban runoff and flow alterations and

4 modifications are they not stressors? Is that your

5 question? Is that a fair --

MS. FRANZETTI: Right. I want to know

7 what makes your list of major stressors, or major

8 constraints.

MR. SULSKI: CSOs and non-point source

10 urban runoff would likely contribute to a stressor

11 on the list, and that would be D.O. Those -- the

12 CSOs are the major source of low D.O. It's been

13 shown in the reports. Non-point source urban runoff

14 is a much lesser stress eclipsed by the others, and

15 there's several reasons for that. Number one, we

16 talked about flow disparity and how the system is

17 basically eclipsed by flow from the wastewater

18 treatment plants.

MS. FRANZETTI: Can I stop you there

20 for a second?

MR. SULSKI: Yes.

MS. FRANZETTI: Flow disparity and

23 it's eclipsed by -- I'm not following why that

24 diminishes non-point source urban runoff as a

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1 stressor to the system.

MR. SULSKI: Well, when you put a drop

3 in a bucket, it's hard to find the drop.

MS. FRANZETTI: Oh, so you're

5 referring to the non-point source urban runoff as a

6 mere drop in a bucket.

MR. SULSKI: Yes.

MS. FRANZETTI: And that's based -- I

9 mean, do you have flow or volume of non-point source

10 runoff data that you're basing that on?

MR. SULSKI: Well, we know what the

12 flow of the system is and we know what the flow of

13 the wastewater treatment plants are and roughly what

14 the flow of the CSOs are.

MS. FRANZETTI: And so that does --

16 you subtract all that and there doesn't leave much

17 left for non-point source runoff?

MR. SULSKI: That's correct.

MS. FRANZETTI: That's what you're

20 saying?

MR. SULSKI: In addition, you know,

22 non-point source comes from direct runoff to

23 waterways. Well, we're in a combined sewer area

24 where that non-point doesn't go into the waterway,

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1 it goes into the sewers.

MS. FRANZETTI: In Joliet?

MR. SULSKI: In some cases, yes.

MS. FRANZETTI: Not all cases, though,

5 right?

MR. SULSKI: Not all cases. But

7 overall in the system, the whole Chicago

8 metropolitan area, substantial portions of it are

9 combined sewer areas. So you have to strip those

10 areas out of the non-point source realm.

MS. FRANZETTI: Okay.

MR. SULSKI: They go into the sewers.

13 They get -- they're captured, they get treated,

14 fully treated. If they don't get captured, well,

15 then they get CSOed out into the waterway so then

16 some of it gets translated there. But then that's

17 back to the CSOs.

MS. FRANZETTI: And on flow

19 alterations/modifications, would your answer --

20 would you put that in the same category you put lack

21 of adequate habitat and say that's already been

22 addressed by the use designation we've chosen?

MR. SULSKI: I think that would be a

24 fair way to do it.

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MS. FRANZETTI: Right. Except in the

2 Upper Dresden Pool, right?

MR. SULSKI: Yes.

MS. FRANZETTI: Mm-hmm. Now, just so,

5 again, so I understand how the Agency's using

6 terminology in the next question: What minimum

7 temperature begins the range of temperatures that

8 are referred to here as high, and "here" meaning in

9 your testimony, in the Statement of Reasons, when

10 you used the phrase "high temperatures," where's

11 your -- where's the beginning of high temperatures,

12 numerically?

MR. TWAIT: I think the way we've used

14 it here, I think we're just talking about above the

15 proposed water quality standards.

MS. FRANZETTI: Okay. Now -- okay. I

17 think I thought you were using a number a little

18 higher than that, but okay. With respect to --

19 moving on to G -- and maybe I need to rephrase it a

20 little bit based on that answer. My question is:

21 Do the temperatures in the water column basically

22 vary out there in -- and let me stick, first, with

23 the case that makes a difference -- Upper Dresden

24 Pool? Do these quote, unquote, "high temperatures"

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1 tend to be at the surface, or tend to be virtually

2 all the way down the vertical extent of the water

3 column?

MR. TWAIT: I believe the highest

5 temperatures will normally be at the surface.

MS. FRANZETTI: Okay. Do you have any

7 sense of whether after you get beyond the surface

8 that the water temperatures in Dresden Pool might be

9 close to, at, what you're proposing as the thermal

10 standards?

MR. TWAIT: I do not know the answer

12 to that. The only monitoring that we have is at the

13 1-55 bridge.

MS. FRANZETTI: And that's, again, the

15 Midwest General monitoring you're referring to?

MR. TWAIT: Yes, and I don't know what

17 depth that monitor is at.

MS. FRANZETTI: Do you know what depth

19 that monitor is at? Well, we'll tie this up later.

20 I'm being told by the person who has a role in

21 getting that data and presenting it to -- submitting

22 it to the Agency that the depth is three feet for

23 those -- for that monitoring station of ours at

24 Midwest Gen's at 1-55 bridge. Okay.

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MR. ETTINGER: Can I just break in?

2 Have you ever looked at the flows of a plant

3 compared to the flows of a river?

MR. SULSKI: Yes.

MR. ETTINGER: Sometimes are the flows

6 of the plant as high or higher than the flow of the

7 river?

MR. SULSKI: Yes.

MS. FRANZETTI: And is the fact that

10 -- just to finish that thought -- is the fact that

11 the flow of the plant, and by that, I think, you

12 mean the discharge flow from the Midwest Gen plant.

13 Is that what you're talking about when you answered

14 that question?

MR. SULSKI: Yes.

MS. FRANZETTI: Okay. Is the flow

17 volume of the Midwest Gen discharges in Upper

18 Dresden Pool sometimes above the flow of the pool --

19 because it is a pool and there isn't a flow going

20 down, but rather it's like a bathtub to some extent.

MR. ESSIG: No. I think there's --

22 usually there is flow through the Brandon Bay. It's

23 not a bathtub.

MS. FRANZETTI: Okay. There's flow at

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1 all times, but doesn't the level of flow change

2 significantly?

MR. ESSIG: Well, yes, as with any

4 river, yes. It's going to change.

MS. FRANZETTI: Okay. So when you're

6 answering the question that sometimes Midwest Gen's

7 flow volume is more than the flow in the Pool, are

8 we talking about those low flow times in Upper

9 Dresden Pool?

MR. SULSKI: There was an analysis

11 which Julia and I were involved with in trying to

12 answer a reporter on that, and we came up with some

13 figures and bounced them back and forth, and it

14 depends on the time of the year. It's not only on

15 low flow. There's a time when some of the plant's

16 flows exceed the waterway flow. Where that flow is

17 surfaced, low, this side, that side, I don't know.

MS. FRANZETTI: Okay. Moving -- I'm

19 skipping H, down to I. If you know, for each of the

20 reaches that we've identified -- you've identified

21 as being subject to these high temperatures, what

22 are the causes of the high temperatures referred to

23 in your testimony? Again, if you know.

MR. SULSKI: Primarily, the power

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1 plant effluence.

MS. FRANZETTI: Anything else?

MR. SULSKI: Not that I can think of.

MS. FRANZETTI: Moving on to Question

5 5, I think you may have anticipated this back in

6 January, and so I'm going to restate it as I

7 recollect. Is the reason in the -- that temperature

8 is not identified as a cause of non to partial

9 attainment of beneficial uses in your 305 B report

10 is because it was the Agency's position that the

11 ambient thermal levels in the Lower Des Plaines

12 River were meeting secondary contact standards?

MR. ESSIG: Yes.

MS. FRANZETTI: And you may have

15 already answered six, but I'm going to jump to the

16 heart of it. Did the Agency consider the presence

17 of endocrine disrupting chemicals in this effluent

18 dominated system as a potential cause of

19 non-attainment?

MR. SULSKI: No. There was -- there

21 was no criteria for us to go by on this, so no.

MS. FRANZETTI: If the stressors are

23 present, if endocrine disrupting chemicals are

24 present, is there any way to remove them from the

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1 system, to your knowledge?

MR. SULSKI: I don't know.

MS. FRANZETTI: Moving on to No. 7,

4 and let me rephrase that opening part of the

5 question. That isn't really a question, so I'll put

6 it in the form of a question. Does the Agency agree

7 that there is a clear link established by the USEPA

8 between sediment contamination and fish tissue

9 advisories?

MR. SULSKI: The USEPA suggests that

11 sediments are a route for fish flesh contamination,

12 yes.

MS. FRANZETTI: All right. So do you

14 agree that USEPA does believe there is a clear link

15 between having sediment contamination and fish

16 tissue advisories?

MR. SULSKI: It's a potential. It's

18 one of several potential links.

MS. FRANZETTI: All right. Well,

20 given, then -- and move on to A. Given that the

21 fish in this system exceed fish tissue advisories

22 for mercury and PCBs, isn't this likely due to the

23 contaminated sediments that are present?

MR. SULSKI: I'm not sure. I mean --

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MS. WILLHITE: I can maybe address

2 that. We have not done any kind of analysis of

3 cycling of these contaminants of the fish tissues.

4 So we can't say with confidence that it's due to

5 sediments or atmospheric deposition or what.

MR. ESSIG: Although I could add,

7 though, that with the advisories statewide that we

8 have PCBs and mercury, and in some of the basis that

9 these advisories occur in, there are sites in those

10 basins were sediment does not appear to be

11 contaminated with PCBs. They're below the detection

12 in some of those sediments. So I don't think

13 there's a direct -- clearly a direct link to some of

14 the contamination.

MS. FRANZETTI: Isn't there sediment

16 data for this waterway showing that there are PCBs

17 and elevated concentrations present?

MR. ESSIG: Yes.

MS. FRANZETTI: Okay. But you don't

20 think that's a contributing factor?

MR. ESSIG: Well, it's contributing,

22 but as I was trying to point out, there are other

23 water bodies that don't have that level of PCBs and

24 they also have fish flesh contaminants. So there

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1 is, you know -- only looking at this waterway, you

2 could probably say this appears to be a direct link

3 in all cases, but it isn't.

MS. FRANZETTI: Okay. So not in all

5 cases, but often it is the case?

MR. ESSIG: Yes.

MS. FRANZETTI: All right. Do the

8 contaminated sediments present a risk both to humans

9 and wildlife?

MR. SULSKI: I don't know. We don't

11 have enough data to make that.

MS. FRANZETTI: In Upper Dresden Pool,

13 isn't the proposed recreational use one that would

14 be consistent with kids wading along the shore line?

MR. SULSKI: Yes.

MS. FRANZETTI: All right. But we

17 don't know whether there are contaminated sediments

18 in those areas where we would be basically

19 encouraging that kind of activity, correct?

MR. SULSKI: The UAA -- the CAWS UAA

21 contractor spoke with one of our toxicologists, the

22 Agency's toxicologist, early on in the process with

23 just some bulk chemistry data, and wondered whether

24 just, straight out, the bulk chemistry would present

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1 a dermal contact risk, and the response was no.

2 None of the levels in those sediments would present

3 a bulk -- you know, a skin contact risk.

MS. FRANZETTI: Okay. So if I

5 understand what you're saying correctly, you have

6 enough sediment data to make that judgment?

MR. SULSKI: That one.

MS. FRANZETTI: Just that one?

MR. SULSKI: Yes.

MS. FRANZETTI: Does that -- and

11 that's dermal, not ingestion?

MR. SULSKI: Correct.

MS. FRANZETTI: And is that the basis

14 on which the Agency still believes that its proposed

15 recreational use level is appropriate?

MR. SULSKI: Yes. That is one of the

17 factors that was considered when we -- when we set

18 the recreational use standards.

MS. FRANZETTI: Okay. Now, is that --

20 I don't recall reading it, but it may be mentioned

21 in your Statement of Reasons or other filings. Is

22 that part of the record that you've filed this

23 review by the toxicologist that says the levels in

24 the contaminated sediments won't cause dermal

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1 exposure problems?

MR. SULSKI: I'm going to have to get

3 back to you on that one.

MS. FRANZETTI: Okay.

MR. SULSKI: I can't recall exactly

6 where that might be in the record, but that we will

7 get back to you with.

MS. FRANZETTI: Okay. Are the CSOs

9 that exist in the waterway a contributing,

10 continuing source of mercury to the system that will

11 continue for many years?

MR. SULSKI: I don't know the answer

13 to that.

MS. FRANZETTI: Okay.

MR. SULSKI: There's not continuous --

16 I don't know the answer to that.

MS. FRANZETTI: And I think this is

18 the case, but when Mr. Sulski says he does not know

19 the answer to that, everybody else doesn't know the

20 answer either, right? Or you would respond,

21 correct?

MS. WILLIAMS: We will jump in.

MS. FRANZETTI: Okay. Mr. Sulski, I

24 just want to make sure that they're backing you up.

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MR. SULSKI: Thank you very much. I'm

2 sorry, I have "Rob" written for just pages here.

MS. FRANZETTI: Oh, okay.

MR. SULSKI: Otherwise --

MS. FRANZETTI: I just wanted to be

6 sure. What is the Agency or any other regulatory

7 agency doing at present to mitigate -- and I'll

8 change this to mitigate -- any of the contaminated

9 sediments that are present in the Upper Dresden Pool

10 and/or Brandon Pool?

MR. SULSKI: That are currently

12 present, or for the future?

MS. FRANZETTI: That are current --

14 let's stick with that are currently present.

MR. SULSKI: Well, we haven't

16 established that they're a critical problem that

17 effect beneficial use -- what is beneficial use?

MS. FRANZETTI: Well --

MR. SULSKI: That's a sludge term.

MS. FRANZETTI: Let's just -- let's

21 just change it to the proposed protected uses.

MR. SULSKI: Well, we haven't

23 established that the sediments are a critical

24 problem. Neither of the contractors invoke the UAA

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1 factor over them. And, again, from earlier

2 testimony, we talked about how they contribute to a

3 lessening of a metric in habitat in QHEI evaluation.

MS. FRANZETTI: I understand we keep

5 saying the contractors didn't invoke it. Now, I

6 think there was also testimony earlier that there

7 allegedly wasn't enough data for the contractors to

8 invoke it?

MR. SULSKI: Correct.

MS. FRANZETTI: Correct. Okay. Now,

11 isn't it true that at the end of the Novotany Heye

12 and Associates UAA report, that is Attachment A, at

13 the end of the Chapter 3 sediment quality, at the

14 least the contractor did say "We are proposing to

15 the responsible agency, IEPA, USEPA, US Army Corp of

16 Engineers, to conduct an interagency study on the

17 extent of sediment contamination of the Lower Des

18 Plaines River that would build upon the USEPA survey

19 and monitoring by IEPA and MWRDGC and the Midwest

20 Generation sediment study by Burton. That

21 recommendation was made, correct?

MR. SULSKI: Correct.

MS. FRANZETTI: Right. But that -- no

24 such interagency study on the extent of sediment

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1 contamination of the Lower Des Plaines River has

2 been initiated as of today, correct?

MR. SULSKI: It would require

4 collecting much more information and data that is

5 currently available. It would be quite an

6 expenditure to do that assessment. In other words,

7 we'd have to jump in boats and start doing some very

8 specific, expensive, weight of evidence and mind

9 sampling. That's what he's suggesting. That's what

10 all the sediment studies that I've read --

MS. FRANZETTI: I understand.

MR. SULSKI: -- on the system suggest.

MS. FRANZETTI: I understand.

MR. SULSKI: If they're inconclusive

15 and they say because "We don't have this, we can't

16 have this, we can't say this, we can't say that."

MS. FRANZETTI: Mr. Sulski, can you

18 give me some order of magnitude on what this cost of

19 the study, at least that you have in mind as being

20 recommended here, would be for Upper Dresden Pool,

21 and the area just upstream of it in Brandon Pool

22 above the lock and dam where a lot of sediments tend

23 to accumulate? If we were doing that area, what's

24 your guesstimate?

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MR. SULSKI: I can't give you a

2 guesstimate. I think Midwest Gen has done some work

3 along those lines, and if they took Burton's

4 suggestions and Novotany's suggestions and augmented

5 the study and did it, you could probably come up

6 with a better estimate than I could. I just don't

7 know.

MS. FRANZETTI: I'm sorry. When you

9 said it's going to cost a lot of money, I thought

10 you had --

MR. SULSKI: I mean, in terms of

12 resources. I mean, we got Howard and me.

MS. FRANZETTI: Oh, okay. I'm sorry.

14 I'm sorry.

MR. SMOGER: They don't pay me much.

MS. FRANZETTI: Because actually, I

17 mean, 30, 35 sampling stations, right, would about

18 cover it for that area, in that ballpark?

MR. SULSKI: For bulk chemistry and

20 biotoxicity analysis pour water analysis, on and on

21 and on from the same -- from the same area at the

22 same time.

MS. FRANZETTI: Am I right, though --

MR. SULSKI: It would be very

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1 expensive.

MS. FRANZETTI: Am I in the ballpark

3 of the scale of the study we'd be talking about?

MR. SULSKI: You know, I couldn't even

5 tell you how many samples would be necessary because

6 of the heterogenous nature of that system from one

7 side to the other. And it changes all the time too.

8 So you would have to sit down and determine what

9 would be a representative sampling scheme for that

10 system.

MS. FRANZETTI: Okay.

MR. SULSKI: And agree on that first.

MS. FRANZETTI: Right.

MR. SULSKI: Before you could come up

15 with dollars.

MS. FRANZETTI: Okay. Where I'm

17 ultimately going with this, in heart, is what you've

18 proposed for Upper Dresden Pool. As you started to

19 hear from several of us asking questions, we believe

20 it's going to entail millions of dollars in cost to

21 comply. If it's feasible to comply, tens of

22 millions of dollars. And would you agree that it's

23 reasonable to at first want to know what is the

24 existence and prevalence of contaminated sediments

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1 in Upper Dresden Pool, and just upstream of it in

2 Brandon Pool, that can be scoured down or

3 transported down into Upper Dresden Pool before

4 determination is made as to whether or not Upper

5 Dresden Pool truly, minimally meets the Clean Water

6 Act aquatic life goals?

MR. SULSKI: Approaching it from the

8 sediment is going to be a very difficult venture. I

9 can tell you it's just such a complicated subject,

10 and there's so much room for error, and so much room

11 for contention. We have enough trouble with IBIs in

12 that. You start getting into sediments and solids,

13 you can read what the reports say. Everybody's got

14 20 more opinions on whether this data's good or it

15 isn't. And more often than not, the money gets

16 spent, the samples get collected, and there's very

17 few conclusions from it, and then the system

18 changes.

MS. FRANZETTI: I appreciate what

20 you're saying. But on the other hand, certainly

21 there are now several sites under the superfund

22 program where the findings have been made that there

23 are contaminated sediments in certain rivers, the

24 Fox, the Hudson River, for example, and that they

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1 need to be remediated to improve conditions or to

2 allow continues in those rivers to improve. So one

3 can do it with the sampling techniques and methods

4 that are available today. Isn't that true?

MR. SULSKI: Okay. I'll take your

6 word for it.

MS. FRANZETTI: Okay. With respect to

8 sediments, if I may, just going back, generally, to

9 some of the testimony earlier today, I wanted to ask

10 a couple of followup questions about the sediment

11 data that is available. I'd probably need to ask a

12 preliminary question. Is anybody for the Agency

13 aware of what are referred to as the sediment

14 quality guidelines?

MR. SULSKI: Yes.

MS. FRANZETTI: SQGs is another way

17 they are, by acronym. Okay. So Mr. Sulski is, and

18 Mr. Essig is. Okay. Is there -- isn't there data,

19 some data, that exists today -- granted we may be

20 going back into the 90s, but I don't think we have

21 to go back to the 1970s -- isn't there data from the

22 1990s and/or forward on the sediments in Upper

23 Dresden and Brandon Pool that can be compared

24 against the sediment quality guidelines to get a

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1 sense of the level of contamination?

MR. SULSKI: Well, the sediment

3 quality guidelines tell that that's an initial

4 screening factor. If they exceed this, then we

5 potentially have a problem, then move on to all

6 these other analyses. So just going by the sediment

7 quality guidance numbers is not enough information

8 to make a decision.

MS. FRANZETTI: Okay. But it would

10 tell you there's -- at least you would say it'll

11 tell you there is a potential problem with the

12 sediments in Upper Dresden Pool and Brandon Pool,

13 correct?

MR. SULSKI: It's a useful tool for

15 deciding where you should place your resources in

16 further evaluations.

MS. FRANZETTI: Is that a yes?

18 There's -- it indicates a potential problem with the

19 sediments?

MR. SULSKI: I don't -- I don't --

21 it's one -- it's one screening factor. I can't say

22 whether there's a problem or not.

MS. FRANZETTI: I didn't say a

24 problem. I thought when you first started, you said

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1 it indicates a potential problem. It's a way to

2 tell you you should keep going, correct?

MR. SULSKI: The suggestion is when

4 you find something that exceeds the sediment quality

5 guidance that it's point where you can make a

6 decision, and your decision, if you go forward,

7 would be probably a wise one.

MS. FRANZETTI: Okay. Now, has the

9 Agency looked at the sediment data that exists and

10 compared it to the sediment quality guidelines?

MR. SULSKI: The contractors -- CAWS

12 contractors did that for CAWS.

MS. FRANZETTI: All right. Mr. Twait,

14 do you think that they did that adequately and/or

15 completely for the Upper Dresden Pool and Brandon

16 Pool area?

MR. TWAIT: They looked at poor water

18 concentrations, and I'm not -- and compared it to a

19 -- they compared it to the water quality standards.

MS. FRANZETTI: Right. They didn't

21 compare it to the sediment quality guidelines, did

22 they?

MR. TWAIT: Not as far as I know.

MS. FRANZETTI: And do you recall,

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1 Mr. Twait -- and you may not recall this, and I will

2 tie it up if you don't later on -- do you recall

3 Midwest Generation submitting a report to the Agency

4 by Dr. Alan Burton that did, in fact, do that and

5 advice the Agency that the concentrations of organic

6 contaminants in had the depositional sediments of

7 the Upper Illinois Waterway exceed reliable sediment

8 quality guidelines for probable, adverse, biological

9 affects. Do you have any recollection of Midwest

10 Gen submitting that evaluation?

MR. TWAIT: I do remember them

12 submitting a Burton report. I'll take your word for

13 what was contained in it. I don't remember the -- I

14 don't remember the specifics of it.

MS. FRANZETTI: Okay. And we will

16 submit it when it comes our time to submitting

17 evidence in this -- in this rulemaking. Did -- was

18 the Burton report that Midwest general submitted to

19 the Agency back during the UAA stakeholder process

20 -- and this was in or about October 2003 -- was it

21 reviewed by the Agency in the course of its decision

22 making process as to what the attainable use was for

23 Upper Dresden Pool?

MR. ESSIG: It was reviewed in

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1 relation to the Lower Des Plaines UAA report.

MS. FRANZETTI: And --

MR. ESSIG: The contractor did look at

4 some of that information on that report.

MS. FRANZETTI: And were the findings

6 of the Burton report rejected? Is that --

MR. ESSIG: I think in some instances,

8 yes.

MS. FRANZETTI: And why?

MR. ESSIG: I'm going off memory here,

11 but I think in some cases, they -- the authors

12 indicated that they felt it was more of a thermal

13 issue that the toxicity of certain temperatures of

14 the sediments when they were in a more of a normal

15 range of temperatures, the toxicity -- if it was

16 there, it wasn't very much. But when they got to

17 higher levels of temperature, say above, I think,

18 35 degrees and up to -- possibly up to 37, I don't

19 remember, but the toxicity increased dramatically.

MS. FRANZETTI: Now, you're --

MR. ESSIG: They thought that it was

22 more -- that it was probably more of a thermal issue

23 in relation to the sediment toxicity.

MS. FRANZETTI: Oh. Now I understand.

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MR. ESSIG: But I would have to go

2 back to the report to double check that, but that

3 was the gist, I think, I got out of it.

MS. FRANZETTI: Right. And is that

5 because Dr. Novotany thought that ammonia was a

6 major contributor to the toxicity?

MR. ESSIG: I don't recall.

MS. FRANZETTI: Okay. You're going to

9 -- would you go back, because we really -- and

10 again, we'll tie this up, but we got no responses to

11 the Burton report on his evaluation of the sediment

12 data. And so if it was reviewed and if there are

13 reasons that his findings were rejected, we would

14 appreciate hearing that.

MR. ESSIG: Okay.

MS. FRANZETTI: Moving on to -- I'm

17 going to skip eight, because I think we basically

18 covered it in January. Skipping nine, I mean, nine

19 asked and answered. As to ten, let me narrow ten,

20 because I think it's been covered on the Ship Canal.

21 Let me limit it to Upper Dresden Pool, and I'll

22 first just ask: Does the Agency agree that its

23 description of the Lower Des Plaines River having a

24 unique habitat conditions applies to the Upper

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1 Dresden Pool? I mean, that was meant to include the

2 Upper Dresden Pool, correct?

MR. SULSKI: I believe so, yes.

MS. FRANZETTI: All right. Now my

5 question is: What are the unique habitat conditions

6 of the Upper Dresden Pool?

MR. SULSKI: I think we answered this

8 earlier where you have a shipping channel with

9 littoral zones that reach and branch out on either

10 side.

MS. FRANZETTI: Oh, that's unique?

MR. SULSKI: It's unique with respect

13 to the upper -- the other -- all three use water

14 bodies.

MS. FRANZETTI: It's unique as

16 compared to the aquatic life use A and B water

17 bodies?

MR. SULSKI: A and B, correct.

MS. FRANZETTI: But it is not unique

20 standing alone as compared to other water bodies in

21 the state?

MR. SULSKI: I think we consider it as

23 unique in the State of Illinois.

MS. FRANZETTI: Okay.

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MR. ETTINGER: It's not unusual to

2 have a shipping channel with littoral zones that are

3 outside the channel?

MR. SULSKI: No, it's not. It's a --

MR. ETTINGER: The Mississippi, the

6 Illinois River, other -- Wabash also have shipping

7 channels with --

MR. SULSKI: Correct.

MR. ETTINGER: Okay. Thank you.

MS. FRANZETTI: I think 11's been

11 answered. And I think, Mr. Sulski, if I'm right --

12 I'm moving on to 12. And again, right where we are

13 about the plank by littoral zones with sand and

14 gravel, and I think you said earlier in answer to

15 12 -- my Question 12A, already been asked, I think,

16 that's based on personal observation, right?

MR. SULSKI: That's also based on

18 information in the -- on the Attachment A report.

MS. FRANZETTI: Okay.

MR. SULSKI: Some of the metrics

21 within the QHEI scores.

MS. FRANZETTI: And so that answers B,

23 that if there's any studies, it's really the UAA

24 report that supports your statement?

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MR. SULSKI: Correct.

MS. FRANZETTI: Okay. Now, it comes

3 to Question C. Haven't prior studies in the Upper

4 Dresden Pool identified this area as more accurately

5 characterized as silty rather than sand and gravel?

MR. ESSIG: Do you want me to take

7 that one?

MR. SULSKI: Yeah, sure.

MR. ESSIG: If you're using the term

10 silty, meaning that the majority of the area is

11 covered in silt, that there's not much other type of

12 bottom type, is that what you're implying by using

13 the word "silt?"

MS. FRANZETTI: Well, I think I'm

15 implying that silty probably is -- I'm not saying

16 that 99 percent of it is silty, but that silty is

17 more predominant than to call it that the littoral

18 zones have predominantly sand and gravel.

MR. ESSIG: Okay. Well, I don't agree

20 with the term silty and we're using it.

MS. FRANZETTI: Okay.

MR. ESSIG: Taking a look at the QHEI

23 indices and the metric for substrate, if you have

24 heavily impacted sediments where you have the

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1 majority of the system was sediment, in that metric,

2 basically, your metric score for substrate, which

3 can get up to total points of 20, if it was all

4 silt, it would be maybe about three to one points.

5 But that's all you get out of that metric. I took a

6 look at -- several of the sites that were done where

7 I could look at the individual metric scores. And

8 from what I'm seeing, in general, it seemed like the

9 majority of the scores were above ten, which means

10 that it isn't totally silty. And there are only a

11 couple that actually have substrate scores -- excuse

12 me I have to find what I'm looking for here.

MS. FRANZETTI: That's okay.

MR. ESSIG: Yeah, more than half of

15 the sites that I looked at have metric scores

16 ranging from 10 to 20, with 20 being the highest.

17 Three scores have scores one to three, which would

18 indicate a silty problem, but there were additional

19 four sites that scored between four and nine, which

20 I still think those probably aren't -- you know,

21 except for maybe scores of four and five, that still

22 might be considered silty somewhat. But I think

23 scores above five are probably indicative of other

24 types of substrate being present.

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MS. TIPSORD: Mr. Essig, could you

2 tell us what you're looking, at what document?

MR. ESSIG: Okay. I -- this is a

4 review of several documents, several reports that

5 we've indicated that we've used the QHEI data from.

6 I think the -- I don't know if any of these are

7 actually in the record. The Com Ed 1996 UIW report,

8 I think we referred to that before. But I went back

9 to the EA reports from '93 and '94 that actually had

10 the original QHEI measurements in them, and within

11 those reports they have the different metrics for

12 the QHEI and I looked at those. And I can get you a

13 list of those documents, and I also looked at the

14 metrics from the MBI 2006 study that was done.

MS. FRANZETTI: Those were the three

16 sites in the Upper Dresden Pool?

MR. ESSIG: Those were the three that

18 I could come up with the actual metric scores at

19 this point.

MS. FRANZETTI: Well, I think we

21 established in January there were only three sites

22 in the Upper Dresden Pool in the 2006 MBI study,

23 right?

MR. ESSIG: Right.

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MS. FRANZETTI: So you looked at --

2 those three were the three you looked at?

MR. ESSIG: Well, I looked at those

4 three in addition to 15 or 13 sites from the EA

5 reports.

MS. FRANZETTI: Yes, I wasn't trying

7 to exclude those. I just was trying to identify

8 that it was the three Upper Dresden Pool sites in

9 the MBI 2006 study that you looked at, as well as

10 these other ones you've listed.

MS. TIPSORD: And just for the record,

12 that MBI, isn't that Exhibit 7? I think so. It's

13 the MBI qualitative habitat.

MS. FRANZETTI: Well --

MS. WILLIAMS: Can I ask a clarifying

16 question? Because I got a little confused when he

17 was talking about the documents he's looked at. Is

18 that okay? I'm looking at what we've entered as

19 Exhibit 30. Are all of the documents that you are

20 referring to summarized? The final scores are on --

MR. ESSIG: They're on that map. I

22 believe most of them came from either directly from

23 the Lower Des Plaines UAA, report or from the -- I

24 believe it's the 1996 Com Ed Upper Illinois Waterway

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1 report. But those just contain the -- that's where

2 we filed the QHEI -- the actual score QHEI, but the

3 metrics were in two different reports that I looked

4 at.

MS. FRANZETTI: Because when you talk

6 about metrics, you're going behind the summary that

7 is Exhibit 30?

MR. ESSIG: Yes.

MS. FRANZETTI: And you are going to

10 sheets like this that were contained in Exhibit 7?

MR. ESSIG: Well, they're not sheets

12 like that. They are actually just a -- it's a table

13 that shows -- actually I think I have a -- can hold

14 on for a second?

MS. FRANZETTI: Sure.

MR. ESSIG: I've got the reports. I

17 can pull them out for you.

MS. FRANZETTI: Well, you know what,

19 given the hour, I think we're just trying to

20 establish that to get to the information that you

21 are talking about that tells you what the substrate

22 is like, you won't find it on a summary of QHEI

23 scores like Exhibit 30?

MR. ESSIG: Well, no. You won't find

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1 those.

MS. FRANZETTI: Right.

MR. ESSIG: Right.

MS. FRANZETTI: You have to get behind

5 those summaries to more of the raw data, so to

6 speak, on what the sampling location -- the QHEI

7 sampling locations substrate look like?

MR. ESSIG: Mm-hmm.

MS. FRANZETTI: Okay. For now is it

10 okay if we just --

MS. TIPSORD: Yes, that's fine.

MS. FRANZETTI: Okay. Maybe, Mr.

13 Essig, tomorrow morning you could be -- if you have

14 any examples --

MR. ESSIG: Sure.

MS. FRANZETTI: -- you could have them

17 then, rather than make you look for them now.

MS. WILLIAMS: But just so you

19 understand, we're not going to have the capability

20 to make a lot of copies and stuff --

MS. FRANZETTI: No, no.

MS. WILLIAMS: -- like we could in the

23 Thompson Center.

MS. FRANZETTI: I just don't want him

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1 to try and pull them out now when he can do that

2 tomorrow before we start.

MR. ETTINGER: That was going to be my

4 suggestion on the record, which is that Mr. Essig

5 give a brief presentation of the documents that he's

6 looking at tomorrow morning.

MR. SULSKI: Could I answer Question

8 12C now?

MS. FRANZETTI: No. Yes, Mr. Sulski.

MR. SULSKI: No.

MS. FRANZETTI: I guess I deserved

12 that. Of course I closed my book in the process

13 here. I don't even know where I am. Okay. 13.

14 Okay. I don't think this has been answered. With

15 respect to the characteristics of the Upper Dresden

16 Pool, the Illinois EPA states at Page 51 of the

17 Statement of Reasons and at Page 14 of the Sulski

18 pre-filed testimony that it contains, quote,

19 "earthen bank reach with fixed aquatic and

20 overhanging riparian vegetation and other zones of

21 refugia for aquatic life," end quote. Describe what

22 portion or percentage of the Upper Dresden Pool

23 includes such characteristics.

MR. SULSKI: This is why we brought

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1 the navigation charts for everybody this this

2 morning, so we could --

MS. WILLIAMS: Can we say Exhibit 30,

4 because I think we've entered two groups of

5 navigation charts.

MR. SULSKI: I'm sorry. That's Yoder,

7 but we have an additional set of three.

MR. ETTINGER: But these are the Yoder

9 ones.

MR. SULSKI: They have river mile

11 markers and QHEI numbers on there all back in a row

12 and rows and rows. So along --

MS. FRANZETTI: I'm sorry. Are you

14 waiting on me?

MR. SULSKI: Do you want me to answer

16 that question?

MS. FRANZETTI: Yes.

MR. SULSKI: Okay. So that's why we

19 brought these charts in, and starting from -- if you

20 put them -- 109, Map No. 109, to the left, 110 in

21 the middle, and 111 on the right, that's a survey

22 map of the reaches which we've planted QHEI and

23 river mark values. But it also shows you where the

24 main channel shipping channel portion is, and it

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1 also demonstrates what other side littoral zones and

2 other features exist in this reach.

MS. WILLIAMS: Can you explain how it

4 shows that, Rob, by looking at it?

MR. SULSKI: Well, the white at the

6 center is the shipping channel. At the red dashed

7 line, that is sort of the center of it, and then

8 when you leave that white area and you enter the

9 blue areas, waterway areas, those are -- those are

10 the side littoral zones and delta mouths and

11 channels around Treats Island, for example on the

12 left-hand-side. So these are all features of this

13 portion of the pool, many of which are trade and

14 forested. Some have aquatic vegetation, overhanging

15 bank vegetation. You can look at some of the

16 photographs within Novotany to get a view of some of

17 those areas that we're talking about.

MS. FRANZETTI: You're not saying that

19 all of the areas --

MR. SULSKI: I am not saying.

MS. FRANZETTI: -- outside of the main

22 channel have, you know, earth and bank reach with

23 fixed aquatic and overhanging riparian vegetation.

24 Right, Mr. Sulski?

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MR. SULSKI: I am not saying that.

MS. FRANZETTI: Okay. There are

3 certain parts that are characterized by that type of

4 -- excuse me -- vegetation or bank?

MR. SULSKI: Yes.

MS. FRANZETTI: Okay. And one of the

7 areas is around Treats Island?

MR. SULSKI: One of the areas is

9 around Treats Island, yes.

MS. FRANZETTI: All right. What other

11 area in Upper Dresden Pool has these

12 characteristics?

MR. SULSKI: Downstream of Treats

14 Island, I would have to look at photographs of the

15 reach within Map No. 110.

MS. FRANZETTI: Okay. So -- all

17 right. Are you telling me as you sit here today,

18 you can't, from memory, tell me whether and where

19 such areas might be on Map No. 110, correct?

MR. SULSKI: Correct.

MS. FRANZETTI: Okay. And --

MR. SULSKI: And then I'm most

23 familiar on map 111 with the Brandon tail water

24 area.

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MS. FRANZETTI: Okay. Can you help

2 people who aren't quite as familiar --

MR. SULSKI: Yes.

MS. FRANZETTI: -- locate what you're

5 -- when you say the "tail water area," is --

MR. SULSKI: Look at Map No. 111 on

7 the right.

MS. FRANZETTI: Mm-hmm.

MR. SULSKI: And I'm sorry that I

10 didn't include a little section of what would be Map

11 No. 112, because that's actually where the dam is.

12 It's just slightly off the map. I didn't feel it

13 necessary to throw a whole map in just for a little

14 quarter inch.

MS. FRANZETTI: Right.

MR. SULSKI: But anyways, the lower

17 part on the right-hand-side is the Brandon lock and

18 dam tail water area.

MS. FRANZETTI: What river mile do you

20 use to denote the beginning of the tail water? Can

21 you help us in terms of spotting something on this

22 map?

MR. SULSKI: Yeah. It would be

24 somewhere from about 285 up to 286.

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MS. FRANZETTI: Okay. In that --

MR. SULSKI: In that mile. It's about

3 a mile long.

MS. FRANZETTI: Okay.

MR. SULSKI: The first mile.

MS. FRANZETTI: All right. And on map

7 109, I know it was Treats Island.

MR. SULSKI: Yes.

MS. FRANZETTI: Which we can see is

10 right there. It's got Treats Island -- oh, well.

11 I'm sure that works. Is it -- is the Treats Island

12 area on Map No. 109 the area that has some hash

13 marks, almost looking like marks on it? Again, for

14 the record, how can we describe what constitutes

15 what you're referring to as Treats Island on Map No.

16 109?

MR. SULSKI: On Map No. 109 at --

18 starting at mile marker 27 -- 279 begins a channel

19 at the bottom that heads towards Jackson Creek and

20 goes below what is referred to as Des Plaines

21 Conservation Area, Treats Island. That's all --

MS. FRANZETTI: Yes.

MR. SULSKI: That clump of property

24 there is Treats Island.

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MS. FRANZETTI: Okay.

MR. SULSKI: The light green and the

3 brown.

MS. FRANZETTI: Okay.

MR. SULSKI: And then the channel

6 reenters the main channel around mile marker 280,

7 280.1, 2.

MS. FRANZETTI: Okay. Moving on to

9 Question 14, it is noted that the Upper Dresden

10 Midstream Channel is generally about 15 feet deep,

11 and that's Statement of Reasons Page 51 Sulski

12 pre-filed testimony at Page 14. But there is no

13 discussion of the rate of flow changes in the Upper

14 Dresden Pool. Isn't the rate of flow changes in the

15 Upper Dresden Pool an equally or more critical

16 factor in terms of the effect on aquatic life than

17 is the depth of the pool?

MR. SULSKI: Well, I mean, you have a

19 shipping channel here that's deeper than littoral

20 zones. And if the shipping channel will

21 accommodate -- and I don't see that it doesn't

22 accommodate -- increases in flow, then you still

23 have aquatic life protection in these side areas

24 behind islands in various places. So I -- you know,

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1 I don't know that --

MS. FRANZETTI: So are you saying the

3 fish get out of the way when you have the

4 significant and relatively quick changes in flow?

5 They head off to behind the island or up into the

6 tail water? Is that why you're saying these flow

7 fluctuations don't --

MR. SULSKI: I'm saying that they find

9 areas within the side zone, which doesn't have those

10 rates of flow, to get out of the way for a while.

MS. FRANZETTI: Okay. So the --

12 you're not disagreeing that there are significant

13 changes in flow rates that can occur in Upper

14 Dresden Pool, correct? I mean, you're agreeing they

15 occur?

MR. SULSKI: I'm not agreeing to that.

MS. FRANZETTI: No, you're not. Okay.

MR. SULSKI: No. I don't -- I need to

19 look at some data so see what the change is. Where

20 does it go from to how often does it do that, what

21 times of the years does it do that. I would have to

22 look at that. I think that we do have some data to

23 start that process, which I indicated earlier Julia

24 and I put together to answer a reporter's questions,

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1 but I don't even think that that's sufficient enough

2 to make the determination you're asking me to.

MS. FRANZETTI: Well, Mr. Sulski,

4 doesn't the Army Corp have the data on flow rates

5 that go through Brandon lock and dam?

MR. SULSKI: Except for one thing,

7 when Julia and I put this together, we found that

8 that data was -- disagreed with itself from one end

9 to the zone to the other. I mean, we're talking

10 about 2,000 CFS disparity, and the flow numbers

11 reported without it being able to account for

12 additional flows from anywhere. So, no, that data

13 isn't going to help us out.

MS. FRANZETTI: Okay. Does any data

15 exist that tells us what the changes in flow rates

16 are like and what their effect, you know, is in

17 terms of the levels in Upper Dresden Pool?

MR. SULSKI: I don't know as I sit

19 here.

MS. FRANZETTI: Okay.

MR. ETTINGER: Let me just ask a

22 couple of questions here. All rivers vary in their

23 flow rates over time, don't they? Has any analysis

24 been done as to how the flow rate changes in this

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1 body of water compared to other bodies of water?

MR. SULSKI: I don't know.

MR. ETTINGER: Thanks.

MS. FRANZETTI: I think, then -- with

5 Question 15, I think the answer would probably also

6 be you do not know. I'll just -- real quick -- with

7 respect to flow changes that occur on a continuing

8 basis in the Upper Dresden Pool, did the Illinois

9 EPA consider whether these flow changes occur at a

10 significant order of magnitude and whether those

11 changes have a negative impact on aquatic life?

MR. SULSKI: I guess the answer would

13 be no.

MS. FRANZETTI: Okay.

MR. SULSKI: It would be no.

MS. FRANZETTI: Okay. Question 16.

17 At Page 14 of the Sulski pre-filed testimony, it is

18 stated that the, quote, "Upper Dresden Island Pool

19 is subject to recurring impacts from navigation use

20 and upstream flood control functions, but to -- "

21 I'm sorry, I think this has been asked and answered.

22 Am I right?

MR. SULSKI: I think so.

MS. FRANZETTI: Yeah, I think so too.

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1 I mean, you really can't quantify what you mean by

2 "to a lesser degree," right? It's just it's

3 something less than is experienced in the upstream

4 portions of the waterway?

MR. SULSKI: I can only go so far as I

6 did earlier with you and say that we have wider

7 zones, littoral zones, in areas of refugia.

MS. FRANZETTI: Did -- well, do you

9 know whether there are, at least at times, what

10 would be accurately characterized as extreme flow

11 changes in the Upper Dresden Pool due to the

12 operation of the Brandon lock and dam?

MR. SULSKI: I don't know about

14 operation of the lock itself. I don't suppose that

15 they use that to let the flow fly. They open one

16 door and close the other door before they -- or they

17 wouldn't be able to get them to flow. It's the dam

18 that transfers the flow. I don't -- I don't know

19 what the -- what the flow regimes are in there.

MS. FRANZETTI: Moving on to Question

21 17, I think that's been asked and answered. I don't

22 know that 18 has been asked and answered. Is it the

23 Agency's belief that it is required or compelled by

24 the Clean Water Act to upgrade the designated uses?

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MR. SULSKI: There's a yes and a no

2 answer for that.

MS. FRANZETTI: Okay. Whichever one

4 you'd like to give me first, and explain.

MS. WILLIAMS: I was going to say the

6 legal answer is we're only compelled to study it and

7 look at it, but from a technical side, you can

8 answer that part, Rob.

MS. FRANZETTI: Well, actually, I

10 think it is a legal question, though. I mean, so

11 let's --

MS. WILLIAMS: No. We're not

13 compelled to upgrade if the study finds that it's

14 not attainable, then that's the conclusion of the

15 study.

MR. SULSKI: Thank you.

MS. FRANZETTI: You know, in -- in the

18 USEPA's blue book -- this is not a pre-filed

19 question, but in looking at the USEPA's blue book

20 when it talks about water quality criteria, in the

21 part dealing with thermal discharges, the USEPA does

22 speak about that because the thermal requirements of

23 various species differ that the social choice of the

24 species to be protected allows for different levels

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1 of protection among water bodies. Have you looked

2 at --

MS. WILLIAMS: What's the date on that

4 document?

MS. FRANZETTI: I don't know.

MR. ETTINGER: That's the '72 blue

7 book, I think.

MS. FRANZETTI: Is it '72?

MR. ETTINGER: The first one.

MS. FRANZETTI: Yeah, yeah. Did the

11 Agency look at the USEPA blue book and its comments

12 on, you know, dealing with thermal requirements,

13 thermal discharges, as any sort of guidance to you

14 in determining your proposed thermal standards here?

MR. TWAIT: I can't say that I looked

16 at the '72 blue book.

MS. FRANZETTI: Okay. Want to stop?

MS. TIPSORD: I was going to say, if

19 you're through with followup, it's a good place to

20 stop. We are at the beginning Question Subpart F,

21 with Ms. Franzetti's questions. We'll start at

22 9:00 o'clock in the morning. Thank you all for your

23 patience.

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1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF COOK

)

I, REBECCA A. GRAZIANO, CSR, do

5 hereby state that I am a court reporter doing

6 business in the City of Chicago, County of Cook, and

7 State of Illinois; that I reported by means of

8 machine shorthand the proceedings held in the

9 foregoing cause, and that the foregoing is a true

10 and correct transcript of my shorthand notes so

11 taken as aforesaid.

_____________________

REBECCA A. GRAZIANO, CSR

Cook County, Illinois

SUBSCRIBED AND SWORN TO

17 before me this ___ day

of ________, A.D., 2004.

19 _________________________

Notary Public

L.A. REPORTING (312) 419-9292