ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF:

)

3 WATER QUALITY STANDARDS AND ) R08-09

EFFLUENT LIMITATIONS FOR THE ) (Rulemaking-

4 CHICAGO AREA WATERWAY SYSTEM ) Water)

AND THE LOWER DES PLAINES )

5 RIVER: PROPOSED AMENDMENTS )

TO 35 Ill. Adm. Code Parts )

6 301, 302, 303 and 304

)

REPORT OF PROCEEDINGS held in the

8 above-entitled cause before Hearing Officer Marie

9 Tipsord, called by the Illinois Pollution Control

10 Board, taken before Laura Mukahirn, CSR, a notary

11 public within and for the County of Cook and State

12 of Illinois, 9511 Harrison Street, Des Plaines,

13 Illinois, on the 23rd day of April, 2008, commencing

14 at the hour of 12:00 p.m.

A P P E A R A N C E S

MS. MARIE TIPSORD, Hearing Officer

MR. TANNER GIRARD, Acting Chairman

MR. ANAND RAO

MS. ANDREA S. MOORE

MR. NICHOLS MELAS

MR. THOMAS E. JOHNSON

Appearing on behalf of the Illinois

Pollution Control Board

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

BY: MS. DEBORAH WILLIAMS

MS. STEPHANIE DIERS

MR. ROBERT SULSKI

MR. SCOTT TWAIT

MR. ROY SMOGOR

HEARING OFFICER TIPSORD: Good

afternoon. My name is Marie Tipsord, and

I've been appointed by the board to serve as

hearing officer in this proceeding entitled

Water Quality Standards and Effluent

Limitations for the Chicago Area Waterway

System and Lower Des Plaines River. The

proposed amendments to 35 Ill. Admin. Code

301, 302, 303, and 304. The Docket No. is

R08-9. To my right is Dr. Tanner Girard, the

lead board member assigned to this manner.

To his right is board member Thomas Johnson.

To the far left is board member Nicholas J.

Melas, to his immediate right is board member

Andrea Moore, and to my immediate left is

staff member Anand Rao of our technical unit.

This is the third set of hearings to be held

in this proceeding. Today's hearing is going

to continue with questioning of the

proponent, the Illinois Environmental

Protection Agency. I will have the Agency

introduce the witnesses and they will be

sworn in. We have completed the prefiled

questions from several groups, but those who

have prefiled questions left are Corn

Products International, Metropolitan Water

Reclamation District of Greater Chicago,

Stepan Company, and Exxon Mobile Oil

Corporation. And I understand that Stepan

Company will be beginning today in just a

minute. Anyone may ask follow-up question.

You do not have to wait until your turn to

ask questions. After we finished the

prefiled questions, we will go to any

additional questions that the participants

have based on the testimony we have received

so far. I do ask that you raise your hand,

wait for me to acknowledge you. After I've

acknowledged you, please state your name and

whom you represent before you begin with your

questions. As you can see, we have a

returning court reporter, but please be sure

to give your name and spellings and

everything. Please speak one at a time. If

you're speaking over each other, the court

reporter will not be able to get your

questions on the record. And, please note,

any question asked by the board member or

staff are intended to help build a complete

record for the Board's decision and not to

express any preconceived notion or bias. As

we discussed off the record at the last

hearing it is my intent to go to 7:00 o'clock

tonight. We'll take a couple of breaks and

proceed forward. Dr. Girard?

CHAIRMAN GIRARD: Good afternoon. On

behalf of the Board, I welcome everyone to

the ninth day of hearing to consider water

quality standards and effluent limitation

changes for the Chicago Area Waterway System

and the lower Des Plaines River. We

certainly appreciate all the time and effort

that everyone is putting into this

rulemaking. It will help us compile a very

complete record. We look forward to the

testimony and questions today. Thank you.

HEARING OFFICER TIPSORD:

Miss Williams, would you like to introduce

our witness and we'll have them sworn in.

MS. WILLIAMS: I'm Deborah Williams,

assistant counsel with the Illinois EPA.

MR. TWAIT: Scott Twait with the

Illinois EPA.

MS. DIERS: Stephanie Diers, legal

counsel with Illinois EPA.

MR. SULSKI: Rob Sulski with the

Illinois EPA.

MR. ESSIG: Howard Essig with the

Illinois EPA.

MS. WILHITE: Marsha Wilhite with the

Illinois EPA.

MR. SMOGOR: Roy Smogor, Illinois IPA.

(Witnesses sworn.)

HEARING OFFICER TIPSORD: With that,

did you have anything preliminary, or do you

want go right into questions?

MS. WILLIAMS: It's up to you. I

think we brought some documents that we'd be

prepared to enter, but they may come up as we

go along. Or if you want us so go through

and enter a bunch of stuff into the record or

however -- we just wanted to be prepared

today.

HEARING OFFICER TIPSORD: Let's go

ahead and enter any exhibits you have. If

it's information that's been asked for

before.

MS. WILLIAMS: Yes.

HEARING OFFICER TIPSORD: Let's enter

those as exhibits on the off chance on a

break someone wants to take a look at them.

And I have a brand new pen for this today.

MS. DIERS: The first set of documents

we have is information we obtained from

Chris Yoder. I was asked, I believe, at

the January hearing. The first thing that

we have to enter is a CD that Mr. Yoder put

together for us. This CD contains comments

from U.S. EPA on his draft temperature

report, representative photos of the

blackhorse-carpsucker and brown bullhead.

There is a Des Plaines River study is the

title of it when you go into the CD. And

also another title on the CD was CAWS fish

data, and that is an e-mail from Ed Hammer

requesting the RAS list.

HEARING OFFICER TIPSORD: If there's

no objection, we'll enter the CD as

Exhibit No. 37. Seeing none, it is

Exhibit 37.

And I would note that the

Agency still has several copies here. So

they brought plenty of copies, so don't be

shy. And I appreciate that there are plenty

of copies.

MS. DIERS: Next I believe it was at

the March hearings Illinois EPA was asked to

provide any wet weather data that we have.

At this time we have two reports to provide.

No. 03-20 of October 2003, and the second

report is report No. 04-10 July of 2004.

HEARING OFFICER TIPSORD: The first

one is Report No. 03-20, October '03. If

there is no objection we'll mark that as

Exhibit 38. Seeing none, it is Exhibit 38.

MS. WILLIAMS: Just to clarify for the

record. Both of these reports are cited in

Attachment B, the CAWS UA, but they weren't

provided with the filing.

HEARING OFFICER TIPSORD: And the

second one is report No. 04-10, July 2004.

If there's no objection, we'll mark that as

Exhibit 39. Seeing none, it is Exhibit 39.

And, of course, this is with the caveat that

you may, of course, question these at a later

date, et cetera. July '04 is 39 and October

'03 is 38.

Let's go ahead and do some

questioning, and at a break you can lay these

all out. Like I say, at a break you can lay

them out so that we can get it a little more

speedily than we're doing. Because it's

already 12:15 and we haven't started

questioning yet.

So with that, let's begin our

questioning. Mr. Dimond, would you introduce

yourself.

MR. DIMOND: Thank you, Miss Tipsord.

I'm Tom Dimond representing Stepan Company.

Can everyone hear me across the room? We

will pick up with our questioning on prefiled

questions that have not been answered. In

some cases I think we have some follow-up

questions that are sort of left over from

previous days. While many of the questions

that we will be asking today come from

sections of our prefiled questions that are

designated for particular Illinois EPA

witnesses consistent with past practice,

anybody on the panel should feel free to

answer. And I will try to, as best I can,

indicate where we are in my prefiled

questions so that you can follow along.

I'm going to start with the

prefiled questions under the heading for

Mr. Sulski with item No. 6.

HEARING OFFICER TIPSORD: Which is on

Page 2.

MR. DIMOND: That's probably right.

But as I've told you before, mine is

paginated differently now.

HEARING OFFICER TIPSORD: That's why I

jumped in with the page number.

MR. DIMOND: So Question 6: How is it

determined that waterway aeration, waterway

flow augmentation, effluent cooling, and

effluent disinfection were the recommended

options for meeting the temperature,

bacterial, and dissolved oxygen standards?

MS. WILLIAMS: I guess I want to

object at this point. It's a compound

question. I don't think the answer is the

same for each.

HEARING OFFICER TIPSORD: Then let him

separate out each one and take each one.

MR. SULSKI: Respectfully, there were

a number of options discussed at the

stakeholder meetings, and of the options

discussed, these were the ones, the ones that

we -- that you see here were the ones that

were pinpointed as potential options for

overcoming the stressors identified. This

was in the stakeholder process.

MR. DIMOND: Well, for example, as to

dissolved oxygen, what other options were

discussed in the stakeholder process?

MR. SULSKI: The general tone was that

there wasn't enough air. We needed more air.

How do we put air into the system. So there

were several -- well, there may have been

several technologies discussed. I don't

remember the exact technologies. Later on

MWRD looked at several technologies and

offered some cost for various technologies.

MR. DIMOND: Was the Metropolitan

Water Reclamation District the only party

that offered any options on DO?

MR. SULSKI: They were the only ones

that I can --

MR. DIMOND: Other than effluent

cooling through cooling towers, were there

any other options discussed as to

temperature?

MR. TWAIT: I believe cooling ponds,

we talked about if there's space, or closed

cycle cooling for cooled cycle facilities if

it was feasible.

MR. DIMOND: Were there any --

MS. FRANZETTI: Mr. Dimond, I'm sorry

to interrupt you, but can I ask a point of

clarification.

HEARING OFFICER TIPSORD: Identify

yourself.

MS. FRANZETTI: Susan Franzetti,

Midwest Generation. Mr. Sulski, when you

talk about the stakeholder meeting, are you

talking about just the stakeholder meetings

on the CAWS UAA, or are you -- Because there

were two different stakeholder groups. Or

are you combining all those stakeholders?

MR. SULSKI: I'm speaking from the

CAWS stakeholder meetings.

MS. FRANZETTI: Thank you.

MR. DIMOND: Were there any options

other than effluent disinfection that were

considered for the bacterial standard?

MR. SULSKI: We discussed end of pipe

CSO treatment. The contractor -- Well, the

stakeholders recommended that that option be

looked at. The District did look at that

option and came up with some cost figures.

When I say the District, I mean the

Metropolitan Water Reclamation District.

MR. DIMOND: Did the Agency conduct

any -- So I take it from what you say, what

you've said, Mr. Sulski, that the agency

didn't conduct any independent analysis of

options to comply with the standards that

it's proposed?

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

MR. DIMOND: So Subpart B of this

question asks was any evaluation made into

the feasibility of these options for

facilities other than the MWRDGC facility.

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

HEARING OFFICER TIPSORD: Mr. Twait

has something to add.

MR. TWAIT: Are you talking about

temperature or are you still talking about

bacteria?

MR. DIMOND: This question would apply

to any of the three standards or the subject

of the question.

MR. TWAIT: I believe Midwest

Generation did provide some economic data.

MR. DIMOND: That's for complying with

the temperature standard.

MR. TWAIT: Yes.

MR. DIMOND: So Subpart C of the

question asks was any consideration given to

what specific methods might be utilized by

facilities other than MWRDGC facilities?

And, if so, was any consideration given to

possible consequences of those methods?

MR. TWAIT: Well, specifically for

effluent disinfection, facilities other than

MWRDGC would be the two Joliet facilities.

MR. DIMOND: When you say the two

Joliet facilities, which facilities do you

mean?

MR. TWAIT: That would be the east

facility and the west facility.

MR. DIMOND: And those are city of

Joliet?

MR. TWAIT: Yes.

MR. DIMOND: Did the agency give any

consideration to the potential that industry

facilities would need to do disinfection?

MR. TWAIT: It was a consideration

that there might be some facilities out there

that have bacteria in their effluent and they

would need to disinfect.

MR. DIMOND: What was the nature of

that consideration?

MS. WILLIAMS: Can you repeat the

question, Mr. Dimond.

MR. DIMOND: Well, Mr. Twait indicated

that some consideration was given that

industrial facilities would need to adopt

disinfection. And I wanted to know what

consideration the Agency gave -- what the

nature of the Agency's consideration was of

that issue?

MR. TWAIT: Their consideration was

that there's other industrial facilities

throughout the state that have bacteria in

their discharges if they have -- if part of

their wastewater is treating facilities,

bathroom facilities at their site, and they

would have to chlorinate, and we know that

the -- we know that it's economically

feasible and technically reasonable based on

other areas of the --

MR. SULSKI: We are aware of a number

of smaller facilities along especially the

Sanitary Ship Canal where it's bedrock and

they don't have sanitary sewer service. They

have their individual systems to deal with

their domestic waste.

MR. DIMOND: Are they currently

disinfecting?

MR. SULSKI: Some of them are.

MR. DIMOND: The ones that are

disinfecting, are they required to under the

current rules?

MR. SULSKI: I'm aware that they are

disinfecting. The reason why they're

disinfecting, I'm not sure.

MR. DIMOND: Is it the Agency's view

that all of these facilities would have to

start disinfecting upon the -- if the

proposal -- or if the regulatory proposal is

adopted as proposed by the Agency?

MR. SULSKI: If it's an effluent

standard, so they would be required to

disinfect.

MR. DIMOND: Subpart D of the question

I think has already been covered, but just to

confirm, the Agency didn't receive any cost

data for options of compliance of facilities

other than the MWRDGC and the Midwest Gen,

correct?

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

MR. TWAIT: To answer part of your

previous question would those facilities be

required to disinfect, it would be those

facilities that are discharging into

incidental contact recreational waters and

noncontact recreation waters and not the

nonrecreation waters.

MR. DIMOND: Okay. And, Mr. Twait, so

that clarification applies to the CAWS which

has some segments that have a recreational

use proposed and other segments that do not,

correct?

MR. TWAIT: Correct. And also to

Branden Pool which does not have a

recreational use proposed.

MR. DIMOND: But as to, for example,

the Upper Dresden Island Pool, dischargers

there would have to consider whether or not

they need to disinfect?

MR. TWAIT: Yes.

MR. DIMOND: That would be -- Would

that be a new requirement in comparison to

the current regulations?

MR. TWAIT: Yes.

MR. DIMOND: Subpart E of Question 6

states, according to your testimony, paren,

Page 18, closed paren, the practicalities of

MWRDGC's compliance were considered. Why

were similar analyses not performed for

facilities along the Lower Des Plaines River?

MR. TWAIT: Because there were no

facilities on the Lower Des Plaines River

that we felt were the quote, unquote,

background sources of the waterway. We

believe that MWRDGC's effluent was the

majority of the waterway.

MR. DIMOND: But the Agency still

concedes that the Lower Des Plaines River is

still an effluent dominated waterway,

correct?

MR. TWAIT: Yes.

MR. DIMOND: Following on in the

questions, have any plans been made to do

such analyses?

MR. SULSKI: Not beyond what we've

done in these UAAs.

MR. DIMOND: I'll pass. The last one

is covered.

A few follow-ups on issues that

have been raised in the previous hearings.

The Agency has testified on

numerous occasions that it is generally aware

that cooling towers are used by industrial

facilities throughout the state. Is Illinois

EPA aware of any cooling towers that have

been installed at a facility downstream of an

existing wastewater treatment plant?

MR. SULSKI: How far downstream?

MR. DIMOND: Prior to the discharge

flowing into a waterway.

MR. SULSKI: Downstream you mean after

the discharge?

MR. DIMOND: Mr. Sulski, I mean

imagine that you have an industrial facility

that has, you know, wastewater discharge that

must go through treatment before discharged

into a waterway. My question is, is the

Agency aware of any facilities in the state

that have installed cooling towers or other

cooling equipment that is between the flow of

water into the wastewater treatment system

and it's discharged into a waterway?

MS. WILLIAMS: Now I'm confused. I

thought I understood the original question,

but now I'm confused.

MR. SULSKI: On the property? On the

property?

MR. DIMOND: I don't -- My question

doesn't depend on whether it's on the

property or not.

MR. SULSKI: Please repeat the

question.

MR. TWAIT: Well, the Dresden Nuclear

Facility put in cooling towers. Is that --

MR. DIMOND: I'm not familiar in

detail with the Dresden nuclear facility. I

don't know whether that's downstream of a

wastewater treatment plant or not. Are you

aware, Mr. Twait?

MR. TWAIT: When you say downstream of

a wastewater treatment plant, are you talking

about downstream of Stickney, in case this

would be downstream of Stickney?

MR. DIMOND: No, no. I'm just

referring to the flow of the wastewater

within the plant. In other words, you know,

water is used in an industrial plant. It

eventually is done being used and it goes to

a wastewater treatment facility. It then

eventually is going to be discharged into

some waterway.

MS. WILLIAMS: Are you talking about

internal, an internal?

MR. DIMOND: So the question is, are

you aware of an industrial facility

installing a cooling tower post the

wastewater treatment facility but prior to

the discharge of that wastewater into a

waterway?

MR. TWAIT: I'm not familiar enough

with industrial facilities to say yes or no.

MR. ETTINGER: I'm still not -- I

don't think the record is clear. Are you

talking about a pretreater that discharges to

a wastewater treatment facility?

MR. DIMOND: A pretreater, as you

described it, Mr. Ettinger, is doing

wastewater treatment even if it's not going

to a publically-owned treatment works, it is

being treated before it's being discharged.

MR. ETTINGER: I understand a

pretreater is doing treatment, but he is

discharging to a pipe that goes then to a

POTW or some other sewage treatment plant.

Is that what you're asking, I guess, is my

question?

MR. DIMOND: It could be -- You could

have an industrial facility -- I mean my

question does not depend upon whether the

discharge from the industrial facility goes

directly to a waterway under a NPDES permit

or goes to a POTW through an industrial

discharge permit.

I'm asking the Agency if they

are aware of any facility in the state that

has installed a cooling tower after

industrial treatment facility.

MS. FRANZETTI: And Mr. Dimond, if I

could just ask, is this in connection with a

situation where, under these proposed thermal

standards, for example, the effluent from a

wastewater treatment plant at an industrial

facility would need to be cooled before it's

discharged? So is it any situation where you

have treated effluent from a wastewater

treatment process and/or plant that then

needs to be cooled?

MR. DIMOND: I think that would be

accurate.

MS. FRANZETTI: Okay.

MR. SULSKI: I'm not aware of any.

MR. TWAIT: I don't know either.

MR. DIMOND: Did Illinois EPA give any

consideration to the potential that cooling

towers might biofoul and, therefore, would

require treatment even after the cooling

towers?

MR. TWAIT: There are, as I understand

it, antifouling chemicals that can be used.

MR. DIMOND: And did the Agency

consider whether or not there would be

further treatment that would be needed to

remove the biofouling chemicals before the

water could ultimately be discharged?

MR. TWAIT: Depending on the

antibiofouling chemicals used, but it's

possible that no additional treatment would

be necessary. If you were using chlorine,

then they would possibly have to be

dechlorinated.

MR. DIMOND: Is Illinois EPA aware of

any plans, other than electrical generating

units, that have retrofitted cooling towers

solely to meet thermal standards in the State

of Illinois?

MR. TWAIT: I believe in most cases

where cooling is going to be necessary to

meet the general use standards they have been

included with the construction of the plant.

So I don't know of any that have been

retrofitted.

MR. DIMOND: So I take it from your

answer, though, that you are aware of

facilities where it's been put in the initial

design?

MR. TWAIT: Yes.

MR. DIMOND: Can you identify any of

those for us today?

MR. TWAIT: There are ethanol plants

that have been designed to cool their

effluent before discharge. I couldn't give

you names of facilities.

MR. DIMOND: Any other -- just any

other generic type of facility do you recall,

Mr. Twait?

MR. TWAIT: Offhand, I can't think of

any, but I'm not all that familiar with the

industrial dischargers in the respect of what

they need to do to meet permit limits.

MR. DIMOND: All right. Moving on to

my question -- or Stepan's Question No. 7.

You say that temperature constraints could be

overcome through additional cooling of the

five Midwest Generation stations. Do you

also expect that other dischargers may exceed

the temperature limits and need to install

additional cooling facilities?

MR. TWAIT: Quite possibly. It would

depend upon whether they could meet the

proposed water quality standards outside of

an allowed mixing zone or allowed mixing.

MR. DIMOND: And in your prior

testimony, haven't we largely established

that mixing zones are largely going to be

unavailable in the Upper Dresden Island Pool

because of the impact of upstream facilities?

MR. TWAIT: At some point all

discharges will need to be -- will need to

meet the temperature standard outside of a

mixing zone. A mixing zone can be a maximum

of 26 acres. So at some point in time no one

facility is going use the entire Dresden

Island Pool.

MR. DIMOND: Question No. 8, will the

current proposed bacteria standards resolve

the bacteria violations associated with storm

events and combined sewer overflows?

MR. SULSKI: Well, there isn't a

bacteria water quality standard now in the

secondary contact waterways, so the

question --

MR. TWAIT: And there is not a

bacteria standard proposed either at this

time. And I will -- the bacteria standard

will not solve any violations. It's going to

take hardware to solve violations such as

TARP to solve the CSO problems and

disinfection of the effluent to solve the

bacteria coming from municipal facilities.

MR. DIMOND: So under the Agency's

proposal, at least as it's currently

structured for bacteria, you're simply

requiring a particular technology to be used,

and there isn't going to be, at least for the

time being, any numerical standard?

MR. TWAIT: We are not -- We are

saying that disinfection has to take place.

We're not describing the technology itself,

and we've set the use designations and there

is no proposed bacteria standard. When U.S.

EPA comes out with their revised proposal,

the Agency will come back to the Board.

MR. DIMOND: Do you have any

expectation on what the timing is for the EPA

revised proposal?

MR. TWAIT: No, I don't. It's a

number of years.

MR. DIMOND: How will the Agency

determine whether or not an industrial

facility needs to implement the bacteria

proposal as it's current -- or the bacteria

technical standard as it's currently

proposed?

MR. TWAIT: It will depend upon how

large of a municipal source is in that

effluent and whether they can meet the

effluent standard without disinfection.

MR. DIMOND: When you say a municipal

source, I was talking about an industrial

discharge.

MR. TWAIT: I understand that. A

domestic source.

MR. DIMOND: So, in other words, you

look at the number of employees at a

facility?

MR. TWAIT: The permit engineer will

look at the flow statistics. If you're using

ten gallons of water for your bathrooms and

1,000 gallons for your -- for the rest of the

facility, when they're combined they'll make

a determination of whether or not you've got

a reasonable potential to exceed the effluent

standard.

MR. DIMOND: Okay. Continuing on, my

next question comes from those under the

heading for Mr. Smogor --

MR. FORTE: Excuse me, Mr. Dimond.

Can I ask one follow-up question here to

Mr. Twait --

HEARING OFFICER TIPSORD: Mr. Forte,

you need to identify yourself for the record

again.

MR. FORTE: Thank you. Jeffrey Forte

on behalf of Citgo. Going to this testimony

you just gave on the disinfection and what

happens after disinfection. In an

effluent-dominated stream, has the Agency

considered the effects on downstream users of

that water of testing that water and going

through some of the water quality standards

that you propose such as the Subpart F? In

other words, if somebody is downstream of a

wastewater discharge which is being

chlorinated, and they're taking that water in

and using it, are they going to see some of

the residual effects of that chlorination or

whatever the disinfection is? Or has the

Agency considered that question, I guess,

maybe is the better question.

MR. TWAIT: Well, I guess is that

specific to chlorine residual or to the

bacteria itself?

MR. FORTE: I think I'm looking more

at the purported treatment and the residual

effects of disinfection as opposed to a

bacteria which is not professing to know a

lot about.

MR. TWAIT: When you say the residual

effects, do you mean a chemical that might

still be in the water?

MR. FORTE: Yes, yes.

MR. TWAIT: There is a provision in

the water quality standards for background

concentrations. It's 304 103, and it will --

It basically says if you're taking in water,

and it has, I'm just going to say total

suspended solids, and you're not increasing

total suspended solids, your loading can be

the same with your influent.

MR. FORTE: But if you are adding

something, and I think you talked a little

something about it, having incidental

sanitary component for industrial discharge,

wouldn't you fall out of that safe harbor

that you just cited?

MR. TWAIT: You may or may not. There

is a clause in here of incidental addition of

traces of materials. It would depend on the

size of your discharge.

MR. FORTE: Well, it would also depend

upon if you're an effluent-dominated

waterway, if the waterway was 70 percent, for

example, municipal wastewater, how big an

effect that was going to have, right?

MR. TWAIT: Possibly.

MR. FORTE: Thank you. Thank you,

Mr. Dimond.

MR. DIMOND: Continuing on with, and

I'm now at Question No. 3 under the heading

for Mr. Smogor. And I'm going to modify --

the basic question I'm going to keep, but I'm

going to modify it slightly. Considering

your dissolved oxygen standards, did you

conduct any studies to determine whether,

even if the Upper Dresden Island Pool met

your proposed standards, it would be

habitable to the range of fish species that

were used to develop the water quality

standards for the Upper Dresden Island Pool?

MR. SMOGOR: When you say the range of

fish species used to develop the water

quality standards for Upper Dresden Island

Pool, are you referring to the representative

aquatic species that were used just for the

temperature standard development?

MR. DIMOND: Correct. That is what

I'm referring to.

MR. SMOGOR: Those representative

aquatic species lists that were used for the

development of the proposed temperature

criteria were not directly used as part of

the development of the proposed dissolved

oxygen standards.

MR. DIMOND: Then what was the basis

of the dissolved oxygen standards that were

adopted?

MR. SMOGOR: The basis was from the

information in the Lower Des Plaines use

attainability analysis, Attachment A, I

believe, and other supporting information

that's on the record, we determined and

proposed an aquatic life use for Upper

Dresden Island Pool that, at a minimum level,

if that's attained, that is equal to minimum

attainment of the Clean Water Act Aquatic

Life Goal. And, therefore, the standards

that we developed in a previous rulemaking

for general use waters for dissolved oxygen

we thought were directly applicable, and we

felt justified proposing those standards,

those same dissolved oxygen standards for

Upper Dresden Island Pool.

MR. DIMOND: So if I understand your

answer, Mr. Smogor, essentially what you're

saying is that even though the Agency has not

designated the Upper Dresden Island Pool as a

general use water, you've decided that you're

going to apply the general use dissolved

oxygen standard.

MR. SMOGOR: We decided because

minimal attainment of general use as it's

defined now in terms of aquatic life is the

same biological condition, the same level of

biological condition as minimal attainment of

the aquatic life use that we've proposed for

Upper Dresden Island Pool; therefore, the

dissolved oxygen standards are the same for

either set of waters because you're setting

the standards to minimally attain the aquatic

life goal.

MR. DIMOND: Well, are you saying --

Is the implication of what you just said that

the Agency's position is that the general use

standard, quote, minimally attained the Clean

Water Act fishable, swimmable goals?

MR. SMOGOR: We believe that when we

attain the general use, when we attain

aquatic life use related to our general use

designations, minimal attainment of that

aquatic life use goal is equivalent to

minimal attainment of the Clean Water Act

Aquatic Life Goal.

MR. DIMOND: So is it the -- I guess

I'm going to ask my question again, because I

thought it was a pretty simple question and

I'm looking for a pretty simple answer. Is

it the Agency's position that the general use

standard that applies throughout most of the

state minimally attains the Clean Water Act

goals?

MR. SMOGOR: We believe that when you

attain the aquatic life portion of general

use, that represents attainment of the Clean

Water Act Interim Aquatic Life Goal.

MR. DIMOND: I can't decide whether I

want to ask this question or not, but

curiosity has got the better of me.

If that's the Agency's position,

couldn't you have -- why didn't you just --

couldn't you have made this whole regulatory

proposal a lot simpler just by saying that

it's the agency's position that the Upper

Dresden Island Pool should be general use?

MR. SMOGOR: I can't make that call.

I'm not the person who dictates policy. So I

guess I don't know how to answer that. I

think in general -- I shouldn't use in

general. General use is such a broad

umbrella use that there's been talk and

there's been efforts towards defining that in

more -- I guess in more explicit ways and

creating different levels of aquatic life

use, of biological potential. So I think

general use has the potential of being split

into different aquatic life uses with

represent -- each representing a different

biological potential. So it doesn't make a

lot of sense, at least to me, to take a

category that's already been created and has

been recognized for some shortcomings and

kind of go backwards for the Upper Des

Plaines Island Pool and assigning that use.

The other issue is we believe

that the level of human -- irreversible human

impact in Upper Dresden Island Pool does

differ than what you might call irreversible

impact in waters that are currently

recognized as general use.

By saying that you're setting

a standard to minimally attain the Upper

Dresden Island Pool aquatic life use and to

minimally attain the general use, that level

of biological condition may be the same, but

that's not the same as saying that general

use waters have the same biological potential

as does Upper Dresden Island Pool. We

believe that the Upper Dresden Island Pool

has a lower biological potential than general

use waters.

MR. DIMOND: And so even though it has

a lower biological potential, you're going to

apply the same dissolved oxygen standards, or

at least that's your proposal?

MR. SMOGOR: Yes. Because there's

such a range of biological potential

represented in that umbrella, blanket use

called general use. There may be, to

clarify, there may be some waters that are

currently designated as general use which,

upon further analysis, would be -- their

biological potential could be set as low as

the biological potential of Upper Dresden

Island Pool. But we don't know that yet. We

started kind of addressing this whole issue

with the Upper Dresden Island Pool in the

Chicago Area Waterway System.

MR. SULSKI: That's the short answer

because -- if I might add --

MR. SMOGOR: It's pretty long,

actually.

MR. SULSKI: Because you said why

didn't we just go ahead and classify a

general use? Well, we can't. We're

revisiting a waterway. We have to look at

all the most recent criteria that have come

about since our original general use

designation. We had to go through that

process. So in some cases -- well, in a

number of cases, things have changed,

criteria, levels have changed. We couldn't

get away from that. We had to do it. So you

can't just -- We wouldn't have been able to

just throw a general use in this waterway.

HEARING OFFICER TIPSORD: Mr. Ettinger

has a follow-up.

MR. ETTINGER: Right now under the

Illinois General Use Classification System

our highest quality waters, West Creek (ph.),

the middle four, have the same classification

as, say, the Wood River and the Lower

Kaskaskia; is that correct?

MR. SMOGOR: Correct.

MR. ETTINGER: So, as I understand

your testimony, you were reluctant to use the

general use category that we now have that's

a very big box where we had more specific

information for the Lower Des Plaines; is

that correct?

MR. SMOGOR: That's a reasonable way

of putting it, yes.

HEARING OFFICER TIPSORD: And you need

to identify yourself for the record.

MR. ETTINGER: I'm Albert Ettinger. I

work for the Environmental Law and Policy

Center, and I represent some of the

environmental groups here.

MR. DIMOND: Then, Mr. Smogor, sort of

circling back, you've indicated that it's

your view that the Upper Dresden Island Pool

has a lower biological potential?

MR. SMOGOR: Than --

MR. DIMOND: Than general use waters.

MR. SMOGOR: Than at least some

general use waters, yes.

MR. DIMOND: Did you -- Has the Agency

defined that lower biological potential in

terms of specific fish species or other

aquatic fauna species.

MR. SMOGOR: No. We didn't get

specific, and I think maybe this, again, what

we talked about in prior testimony, the

definition that we proposed of the aquatic

life use that we proposed for Upper Dresden

Island Pool uses some general language to

address the type of aquatic community that's

expected in the Upper Dresden Island Pool.

That would be the Upper Dresden Island Pool's

potential aquatic community. But we didn't

get down to consideration of specific species

by species comparisons.

MR. DIMOND: Since you did not get

down to specific species by species analysis,

I take it that the Agency really can't have

any scientific basis to say that you need the

dissolved oxygen standards that you've

proposed in order to protect this biological

use that you've got loosely defined?

MR. SMOGOR: Are you asking if we

think we have a scientific basis or --

MR. DIMOND: Yes.

MR. SMOGOR: Well, we believe we do

with the use attainability analysis and the

other information that's been presented on

the record. We believe we have a scientific

basis. We've looked at the information

that's available from Upper Dresden Island

Pool, and we believe that we've proposed a

use that's consistent with the biological

potential of Upper Dresden Island Pool based

on that information.

MR. DIMOND: But you haven't done any

studies to determine whether or not your

dissolved oxygen standard will allow that

biological -- You haven't done any studies to

determine whether or not dissolved -- using

your dissolved oxygen standards will make any

difference in the biological community or

not, have you?

MR. SMOGOR: Well, I guess I would

address that we're not necessarily setting

standards to make a difference. We're

setting standards that we believe are at

levels that are protective of the use that we

propose. So we believe that the dissolved

oxygen standards that we did propose for

Upper Dresden Island Pool are the dissolved

oxygen conditions that aquatic life need in

Dresden Island Pool in order to be able to

attain that biological potential that we've

proposed for Upper Dresden Island Pool. And

we believe that that information is

well-supported by the technical -- or by the

National Criteria Document for dissolved

oxygen which is the 1986 U.S. EPA document.

I believe it's Attachment X.

HEARING OFFICER TIPSORD: The Ambient

Water Quality Criteria For Dissolved Oxygen?

MR. SMOGOR: Yes.

HEARING OFFICER TIPSORD: That's

Attachment X.

MR. DIMOND: So Attachment X that

you've just referred to, is that also what

the Agency used to justify the dissolved

oxygen standard for general use waters?

MR. SMOGOR: Yes. That was a primary

source of information to justify.

MR. DIMOND: Question No. 4.

MR. POLLS: Can I ask a follow-up.

THE COURT: Give us your name.

MR. POLLS: Irwin Polls. I'm with

Ecological Monitoring and Assessment on

behalf of the Water Reclamation District.

I'd like to ask you a question regarding what

factors did you identify for saying that you

have a lower biological potential in the

Upper Des Plaines? You said that there's a

lower biological potential compared to

general use? What do you identify as these

factors that caused this lower biological

potential?

MS. WILLIAMS: You mean the Upper

Dresden Island?

MR. POLLS: Yes, Upper Dresden Island.

MR. SMOGOR: To clarify, we believe

that Upper Dresden Island Pool has lower

biological potential than at least some

general use waters in Illinois. I'm not

saying it has lower biological potentials

than all general use waters in Illinois, but

because of the broad range of actual levels

of potential that are represented by general

use, I would have to say it has lower

potential than Upper Dresden Island Pool than

at least some general use waters. That is

based on a lot of the information that's been

presented on the record and use attainability

analysis of the Lower Des Plaines and

subsequent studies by Midwest Biodiversity

Institute and CABB were also studies on the

record. And it's predominantly based on

habitat conditions. We believe that the

physical habitat conditions in Upper Dresden

Island Pool will support a level of

biological conditions that can minimally

attain the clean water aquatic life goal.

MR. POLLS: When you say habitat, are

you talking about the period, are you talking

the stream are we talking about both?

MR. SMOGOR: We're talking about both,

physical habitat conditions.

MR. POLLS: Thank you.

MR. DIMOND: I believe Items 4 and 5

under Mr. Smogor's testimony have been

covered either today or otherwise. So I am

moving on to Question No. 1 under the heading

for Mr. Twait.

On Page 3 of your testimony, you

state that the Agency is also proposing water

quality standards for sulfate and chloride

that are based on the proposal currently

before the Board in R07-9. Subpart A asks

why are water quality standards being

proposed based on the proposed general use

water quality standards for waters which have

been determined to be unable to meet the

general use water quality standards?

MS. WILLIAMS: Can I just clarify,

Mr. Dimond? I'm assuming, although it

doesn't say it in your question, that you're,

again, referring specifically to the sulfate

and chloride water quality standards?

MR. DIMOND: Yes.

MS. WILLIAMS: Thank you.

MR. TWAIT: Our proposal of chlorides

and sulfate replaces the existing total

dissolved solids water quality standard.

It's a secondary contact standard. We feel

that our proposed role better represents the

protection of aquatic life. It's based on

toxicity.

MR. DIMOND: This is toxicity of

chlorides and sulfate.

MR. TWAIT: We have a water quality

standard for total dissolved solids that we

don't think is based on toxicity, and the

portions of total dissolved solids that are

toxic are for Illinois, anyway, are chloride

and sulfate. So we've proposed a chloride

and sulfate standard instead of the total

dissolved solids.

MR. DIMOND: Are there any documents

in the record similar to what Mr. Smogor

referenced for DO that led you to these

standards?

MR. TWAIT: I believe we just

referenced the rulemaking before the Board,

the other -- the other rulemaking before the

board. Do you know what that is?

HEARING OFFICER TIPSORD: R07-9.

MR. TWAIT: Thank you.

MR. DIMOND: Has that rulemaking been

concluded?

MS. WILLIAMS: No.

HEARING OFFICER TIPSORD: If I may,

for the record, it is on the Board's pending

decision agenda for second notice.

MR. DIMOND: So the Agency just

basically said, well, we think whatever we've

done in RO7-9 ought to apply -- ought to

apply for the waters in this proceeding as

well?

MR. TWAIT: We did make that

conclusion. We are currently looking at that

decision to see if we can -- to see if our

proposal needs to be adjusted.

MR. DIMOND: Adjusted in what way?

MR. TWAIT: We are, for sulfates

specifically, we did not have a proposal on

what the sulfate standard when chloride is

above 500. We are looking at that. Another

portion, we are taking a second look at the

chloride standard that we've proposed and

determining which species were the most

sensitive to chlorides and making

determination if they're in these particular

water bodies.

HEARING OFFICER TIPSORD: If I may,

for a point of clarification, you're talking

about looking at these in CAWS and Lower Des

Plaines?

MR. TWAIT: Yes.

MS. WILLIAMS: And I'd just like to

clarify. I'm not sure I completely thought

the answer was accurate in the sense that you

asked if we just took the standards from that

rulemaking and put them in there, and there

are changes in the way we're proposing here.

For example, that proposal provides a

standard to protect for livestock watering

which we don't believe is a protective use

here. That's the only example I can think of

offhand, but there may be others that are

described in the statement of reasons where

we looked at whether everything in there was

needed here or not.

MR. DIMOND: Were there any other ways

in which differences in the uses of the CAWS

and the Lower Des Plaines River as compared

to general use waters were factored into the

sulfate and chloride standards that were

proposed?

MS. WILLIAMS: I know that we looked

at whether the -- what the hardness values

were and whether there were different typical

hardness values here than other areas of the

state.

MR. TWAIT: Yes. And we took out at

least one of the equations, possibly two. I

don't have which -- that with me. And those

are for instances where the hardness was

below 100 and chlorides were below -- below

five. We took those out of the proposal.

MR. DIMOND: Question No. 2 --

HEARING OFFICER TIPSORD: Mr. Forte?

MR. FORTE: Just a couple of

follow-ups. And, Mr. Twait, when you were

talking about -- you were looking at what

species are present. I believe the Agency's

testimony is that there are three UAA factors

that the uses, the use attainability analysis

concludes are not met at least by certain

rise water, and, of course, I'm talking about

the Chicago Sanitary and Ship Canal. To what

extent is the Agency looking at those

unattainability factors or use

unattainability factors in looking at the

chloride, proposed chloride water quality

standard.

MR. TWAIT: I don't -- I think we'd

like to address the issue through meeting

something that's protective before we start

using the factors for the UAA.

MR. FORTE: So your approach is to

look at what's protected and then consider

what the uses really are? Did I hear that

right?

MR. TWAIT: The intent is to provide a

water quality standard that is protected

before we used one of the six UAA methods.

MR. FORTE: Thank you.

MR. DIMOND: Going on to Question

No. 2. On Pages 3 to 4 of Mr. Twait's

testimony, he states that the pH is being

updated to conform to the general use

standard of 6.5 to 9.0. You further state,

quote, it is expected that this standard will

be attained at most times and at most areas

of the CAWS and Lower Des Plaines River,

though data from the Metropolitan Water

Reclamation District of Greater Chicago

indicates there may be occasional pH

violations below 6.5. And, Subpart A, the

question is are these violations expected due

to natural variations in river slash

environmental conditions.

MR. TWAIT: I'm not sure what causes

the pH to go below 6.5.

MR. DIMOND: Is it correct that the

Agency does not expect that this pH standard

is consistently attainable as that term is

used in 40 CFR 131 22?

MS. WILLIAMS: I'm assuming this is a

legal question about the meaning of that

provision, and I took a look at that

provision in the purpose section. And when

it -- when that term -- I would agree it may

be confusingly worded a little bit, but it

seems clear to me that when that provision

uses the term attainable, it's talking about

uses, not water quality standards. So I

guess that makes the answer yes.

MR. DIMOND: Subpart C, is it

appropriate to designate uses which require

establishment of standards where it is not

expected that consistent compliance is

possible?

MR. TWAIT: Yes. It's to protect the

aquatic organisms.

MR. DIMOND: That even where the

Agency knows based on existing data that

consistent compliance is not possible?

MR. ESSIG: Well, yes. I believe we

do in that when the streams are assessed and

pH comes up as a cause of impairment, then

that would be addressed through the TMGL

process.

MR. DIMOND: I'm sorry. I couldn't

understand all of your answer, Mr. Essig.

You said when it comes up --

MR. ESSIG: If we assess the water

bodies not attaining its designated use due

to factors such as pH, it would then be

subject to a TMGL. And that parameter of pH

would be addressed through that procedure.

MR. SAFLEY: Mr. Dimond, would you

mind if I asked a follow-up question? Thank

you.

HEARING OFFICER TIPSORD: Identify

yourself.

MR. SAFLEY: Tom Safley. Mr. Twait,

am I correct that you stated the Agency is

not aware of the reasons that pH is

occasionally below 6.5 in these water bodies?

MR. TWAIT: I don't know if occasional

violations are due to natural variations in

the river or environmental conditions. So

yes.

MR. SAFLEY: In that case, how can the

agency consider the six UAA factors with

regard to pH to determine whether or not

there are -- any of those six UAA factors are

triggered based on the potential of

irreversible sources or causes of those pH

violations?

MR. SULSKI: We looked at all the data

available. When we had problems meeting

modern criteria, which we had to rely on, we

revisited all the data and we found no data

to give us a case that it was an effluent or

it was a natural situation, none of that

information came forward. So we really had

no reason to invoke a factor.

MR. SAFLEY: Do you have any reason

not to invoke a factor, however, or you just

don't know whether a factor is applicable?

MR. SULSKI: If we're invoking a

factor, we better be able to explain it

through what the text is in that factor.

MR. SAFLEY: So would it be accurate

that at least for this parameter, if the

Agency doesn't know the cause, it simply is

unable to perform an analysis of whether any

factors apply of the six UAA factors?

MR. SULSKI: We don't invoke a factor

because of a criteria for a standard. We

invoke a factor because we don't believe a

use can be met. Then we follow afterwards

and we set criteria to protect that use. If,

for example, during the analysis -- use

analysis somebody came forward and said,

well, you know, there's 100 million geese

that always sit in Lake Calumet and the

bacteria level is high and we can't get rid

of the geese, that's a situation that would

cause us to invoke a factor. But in the case

of a single parameter with no idea where

it's -- you know, it's not in our, I guess

our right, to invoke a factor.

MR. SAFLEY: But in this case, the

water quality standard that's being proposed

for pH the Agency has concluded that that

standard is necessary to meet the use that

it's proposing; is that correct?

MR. SULSKI: Correct.

MR. SAFLEY: Okay.

MR. TWAIT: One clarification I'd like

to make, the National Criteria Document says

the pH should be between -- as long as the pH

is between 6.5 and 9, the fish will be fine.

If the pH is between 6.0 and 6.5, they will

be okay as long as the, I believe it's carbon

dioxide, soluble carbon dioxide is less than

100. I believe the District has some

questions on that. So there are some

instances in time between 6 and 6.5 that this

could be adjusted as long as the carbon

dioxide is less than 100.

MR. SAFLEY: When you say this could

be adjusted, you mean that it would be

defensible to have a pH level of between 6

and 6.5 based on the national criteria?

MR. TWAIT: Yes.

MR. SAFLEY: But you're not proposing

in this rule to have that range of pH?

MR. TWAIT: Our original proposal does

not have that in it. I, reading the

District's questions, I think they're going

to question that also.

MR. SAFLEY: Those are the end of my

questions. I'll wait. Thank you.

MR. DIMOND: Okay. Our Question No. 3

has been covered, so I'm going to move on to

No. 4. With regard to ammonia, Page 4 of

your testimony states that the seasonal

ammonia standard protecting the early life

stage period is not applicable to those

waters not being designated for the

protection of early life stages. The waters

that do not protect for early life stages are

the CAWS and the Branden Pool Aquatic Life

Use B Waters. Subpart A: Do waters of the

Upper Dresden Island Pool currently satisfy

the proposed ammonia standard for early life

stages?

MR. TWAIT: The UAA Attachment A

addressed the proposed -- The UAA addressed

whether or not these waters could meet the

1999 criteria document for U.S. EPA. And

they used some Monte Carlo modeling and

determined that the chronic -- that the water

quality standard for ammonia would be met.

The Agency has not looked at this directly to

see whether or not it meets the water quality

standard, but based on the analysis and the

UAA, we believe it does.

MR. DIMOND: Well, if they used a

Monte Carlo analysis, that's a probability

analysis that looks at different

probabilities. So does that mean that there

are some times when the Upper Dresden Island

Pool has ammonia levels that are above the

standard that you've proposed?

MR. TWAIT: The Monte Carlo analysis

that they did, the way I understand the Monte

Carlo analysis is that they take the existing

data and model -- then they -- they take the

existing data and come up with means and

standard deviations, and then they turn

around and run that model, and it provides a

theoretical -- it provides temperature, pH,

and ammonia levels, and then it will run that

over many variations using those statistics

and determine whether or not you would meet

the water quality standard based on the

measurements that they see in the stream.

And when you assess it directly, the water

quality standard, you don't have a sample

every day. So in some respects it's

difficult to say whether you would meet a

monthly average if you don't have a lot of

data in that particular month. That's why

they use the Monte Carlo analysis.

MR. DIMOND: Subpart B, in

establishing the ammonia standard for the

Upper Dresden Island Pool, what factors

support a belief that the ammonia levels will

decline downstream of the Brandon Locks?

MR. TWAIT: I'm not quite sure where

we used the belief that ammonia levels will

decline downstream of Brandon Locks?

MR. DIMOND: Well, the Brandon Locks

is going to have a higher ammonia standard,

isn't it?

MR. TWAIT: Yeah, based on the

protected use. Basically in answering A, we

believe that downstream of Brandon Locks it

will meet the proposed standard.

MR. DIMOND: And that's based on this

Monte Carlo analysis?

MR. TWAIT: Yes.

MR. DIMOND: I think subpart C has

been covered. And I think I'll pass on

subpart D.

Question No. 5.

HEARING OFFICER TIPSORD: Mr. Dimond,

let's -- We've been at it for about an hour

and a half now. Let's take a ten-minute

break.

(Short break taken.)

HEARING OFFICER TIPSORD: Mr. Dimond?

MR. DIMOND: I think we had finished

up Question 4 under the heading for

Mr. Twait. Questions 5 through 11 have been

adequately addressed already in the hearing,

so I'm moving on to Question No. 12 under the

heading for Mr. Twait. On Page 12 of your

testimony, you state, the Des Plaines River

between Branden Road Lock and Dam and the

I-55 bridge has incrementally more diverse

aquatic life and higher quality habitat than

the rest of the CAWS and the Lower Des

Plaines River. For this reason, the Agency

determined it was appropriate to use the

option of the 27 RAS list, paren, modified

use, closed paren, to determine the summer

daily maximum and period average for the

Upper Dresden Island Pool waters.

Subpart A question: What

field studies, if any, were undertaken to

confirm that the incremental changes between

the Brandon Road Lock and Dam would support

the modified use of RAS list of species?

MR. TWAIT: I believe that would be

the QHEI and the IBI data.

MR. DIMOND: That's all the data that

the Agency relied upon?

MR. SMOGOR: We did consult species

lists, species presence absence data from --

well, there was -- these, I think, are on the

record. There's the 1994 or '96 --

MR. ESSIG: There's a report by

Illinois Department of Natural Resources

listing fish in the Lower Des Plaines --

HEARING OFFICER TIPSORD: Mr. Essig,

you'll have to speak up.

MR. ESSIG: 1978 through 1990. There

was also UAA reports. I believe there were a

few reports from EA that we looked at.

HEARING OFFICER TIPSORD: And EA is?

MR. SULSKI: Environmental Assessment.

Midwest Gen or Com Ed at the time.

HEARING OFFICER TIPSORD: Thank you.

MS. FRANZETTI: EA is the name of the

outside consultant.

HEARING OFFICER TIPSORD: Thank you.

MR. DIMOND: So I take it from that

answer that there really wasn't any, and this

relates to the question in Subpart B, there

wasn't really any species specific study that

was done to confirm that the incremental

changes below the Brandon Road Lock and Dam

would support the modified use species?

MR. SMOGOR: I guess how I was -- it

seems like you're asking if that 27 -- if

that list of representative aquatic life

species is appropriate or not for that

stretch of river. If that's what you're

getting at, we believe that that list was

appropriate. And, if I'm not mistaken, in

terms of the temperature model, the criteria

that come out of the temperature model are

really driven by the most sensitive,

temperature sensitive species on that list,

correct?

MR. TWAIT: Yes.

MR. SMOGOR: So I think it's

reasonable that the most sensitive

temperature sensitive organisms on that list

of 27 can be expected to occur in Upper

Dresden Island Pool? Is that correct, Scott?

Is that reasonable?

MR. TWAIT: Yes.

MR. DIMOND: So I know in prior

hearings, I think we've established that at

least for many parameters in the temperature

area, it's the white sucker that ends up

being the most sensitive species, right?

MR. TWAIT: Correct.

MR. DIMOND: So has the Agency

conducted any study to indicate that the

white sucker would want the habitat in the

Upper Dresden Island Pool?

MS. WILLIAMS: One of the things --

Maybe this is the logical point, Madam

Hearing Officer. One of the things I believe

we were asked last time was what data we

looked at related to white sucker, and we --

and Howard had listed some things, and we

have brought those today if you'd like to

enter those as exhibits.

HEARING OFFICER TIPSORD: Let's get

those in the record.

MS. DIERS: We have -- There's --

There are four tables, Madam Hearing Officer,

and a report. Do you want to mark each one

individually?

HEARING OFFICER TIPSORD: Yes.

MS. DIERS: The first table that we

have on the white sucker data is Illinois

Department of Natural Resources DuPage River

Basin Survey Station.

HEARING OFFICER TIPSORD: We'll mark

Illinois Department of Natural Resources

DuPage River Survey Station as Exhibit 40, if

there is no objection. Seeing none, it's

Exhibit 40.

MS. DIERS: The next one is Illinois

Department of Natural Resources Fish

Community Sampling Results and Index of

Biotic Integrity IBI 2003 Des Plaines Basin

Survey Main Stem Stations.

HEARING OFFICER TIPSORD: And we'll

mark that document as Exhibit No. 41 if there

is no objection. Seeing none, it's

Exhibit No. 41.

MS. DIERS: The next one is Illinois

Department of Natural Resources Fish

Community Sampling Results, an Index of

Biotic Integrity, IBI 2003 Des Plaines Basin

Survey Tributary Stations Include Data From

2002 Surveys.

HEARING OFFICER TIPSORD: And if there

is no objection, we will mark that as

Exhibit 42, if there's no objection. Seeing

none, it is Exhibit 42.

MS. DIERS: The next one is Illinois

Department of Natural Resources Fisheries

Division, Kankakee River, Fish Population

Survey, the Results July 2005.

HEARING OFFICER TIPSORD: And if

there's no objection, we'll mark that as

Exhibit 43. Seeing none, it's Exhibit 43.

MS. DIERS: Do you have the report?

And the last document for the white sucker is

the Des Plaines River Monitoring the Fish

Resources of the Urban River, 1978 through

1999 -- 1990, sorry.

HEARING OFFICER TIPSORD: If there's

no objection, this will be marked as

Exhibit 44. Seeing none, it's Exhibit 44.

AUDIENCE MEMBER: Would you repeat the

title of 44, please.

MS. DIERS: It's the Des Plaines River

Monitoring the Fish Resources of an Urban

River 1978 to 1990.

HEARING OFFICER TIPSORD: By David M.

Day, and it's dated 12 August 1991.

MR. DIMOND: Are we ready to proceed?

HEARING OFFICER TIPSORD: I think so.

We're ready to proceed?

MS. DIERS: Yes.

HEARING OFFICER TIPSORD: Go ahead,

Mr. Dimond.

MR. DIMOND: Well, thank you, Madam

Hearing Officer. For obvious reasons, we

will reserve our right to ask questions on

the exhibits that have just been distributed,

or I will leave it to my esteemed colleagues.

HEARING OFFICER TIPSORD: So noted.

MR. DIMOND: At this point I think I'm

ready to move on to Question No. 17. Has the

Agency considered whether aquatic species in

the Upper Dresden Island Pool have the

ability to engage in adaptive behaviors in

the face of temperature excursions in

establishing the proposed thermal standards?

MR. SMOGOR: Yes. It's recognized

that organisms have -- some organisms have

the ability to avoid certain situations.

MR. DIMOND: Did the Agency take that

into account in any way in coming up with the

thermal water quality standards?

MR. SMOGOR: I think it recognized

that fish have the ability to avoid

particular temperatures. But when you're

setting a standard for something like water

or temperature or other water quality

parameters, the intent of the standard isn't

to set it at the point where animals avoid

it. It's to set it at the point where

animals can actually sustain themselves and

thrive under those conditions. If a fish is

out there avoiding certain temperature

conditions, it comes at a cost to the animal.

Because the animal is spending that extra

energy to avoid, it's prevented from

occupying a certain space that may provide

certain needs for that organism; or because

of its actions to avoid, it's making itself

more vulnerable to predation or whatever

reasons. There is a cost to that organism to

that avoidance. So we're not necessarily

wanting to impart those costs on an organism

when we set a water quality standard. We

want to set a water quality standard that,

for lack of better terms, the organism is

comfortable with.

MR. DIMOND: I mean all the little

white sucker has to do is swim to a different

area of the stream, isn't that it? I mean

he's going to be swimming anyway. So how

much more energy is he expending?

MR. SMOGOR: Well, if he wants to get

to a particular location that has -- that he

or she believes meets his or her needs, its

needs, and it runs into potentially harmful

or undesirable temperatures, it's going to

avoid -- It's going to be redirected from its

purpose. And that is a cost in -- an overall

cost. If it's doing that enough times, it's

not doing the things that may be necessary

for it to thrive. I guess the way I see it

with water quality standards, if we're trying

to set standards at levels that animals

avoid, I'm not sure there would ever be a

high limit. Because you could just set it

and then always say, well, the creditor can

avoid it. The animal can swim away from it.

So let's allow it. To me that's not the idea

of water quality standards.

MR. ETTINGER: I just wanted to ask.

We're setting a standard for the area outside

the mixing zone.

MR. SMOGOR: Yes. Right.

MR. DIMOND: I'm going to move on to

Item No. 16. I'm sorry. Item No. 18. On

Page 16 of, I believe this is Mr. Twait's

testimony, you refer to the study

commissioned by the MWRDGC and you also

referred to ongoing EPA studies and the

deferral of adopting any numeric bacterial

water quality standard until sound

information is available. And I'm going to

modify my question a little bit here.

In that testimony, you also

indicate that the technical bacterial

stand -- technical bacterial disinfection

standard is being imposed as a precautionary

measure. What's the basis for adopting a

precautionary measure? Is that consistent

with the Illinois Environmental Protection

Act?

MR. ETTINGER: Is this -- I guess I

have a question. Is this a legal question

directed as to the interpretation of the

Illinois Environmental Protection Act?

MR. DIMOND: It's a question about

Mr. Twait's testimony where he says that he's

using a -- that the Agency is proposing this

as a precautionary measure.

MR. ETTINGER: So are you asking if

they did that?

MR. DIMOND: The witness hasn't

indicated any difficulty with my question, so

I'd like it to stand.

MS. WILLIAMS: I have a problem, I

guess, with your question. First you ask

what the basis, and then you said is that

consistent with the -- so maybe we need to

ask first what's the basis, okay?

MR. TWAIT: The basis is we set a use

and we are protecting the use with the

effluent standard rather than a water quality

standard that we don't believe in.

MS. WILLIAMS: I think I testified in

detail last time about our understanding of

the legal authority under the board to adopt

effluent standards under Section 13 of the

Act, if that answers the second part.

MR. DIMOND: I'm sorry. Could you

read back what Ms. Williams just said?

(Record read back.)

MR. DIMOND: Well, let me ask this

question: Mr. Twait, in your testimony where

you said as a -- this is on Page 16. As a

precautionary measure to protect our

recreating public, however, we are proposing

to require wastewater treatment facilities

discharging into any segments listed as

incidental contact recreation and noncontact

recreation to employ disinfection practices

after a reasonable compliance period. What

did you mean when you said as a precautionary

measure?

MR. TWAIT: Well, that is -- What I

meant by that was that we were proposing an

effluent standard to protect the proposed

designated use instead of waiting for U.S.

EPA and the district to get done with their

studies because this is, as we know, effluent

that has bacteria in it. So as a

precautionary measure to the users of the

system, we propose the effluent standard.

MR. DIMOND: Your qualifier as a

precautionary measure, is that an indication

that the Agency doesn't have any hard data to

indicate that the condition of the water is

creating any risk to persons who recreate?

MR. SULSKI: This question has been

asked and answered a number of times and I'll

reiterate my answer. We know that the system

is dominated by human originating wastewater

that contains pathogens of human origin. And

we felt it prudent to put an effluent

standard on those discharges knowing that

they dominate the system, on average 75

percent of the flow in the system.

MR. DIMOND: Are you done, Mr. Sulski?

MR. SULSKI: Yes.

MR. DIMOND: Okay. And yet the Agency

admits that there are many ongoing studies

that questioned whether or not this treatment

is really necessary to protect the recreating

public, right?

MR. TWAIT: There are national

criteria documents that we don't feel -- that

we feel are outdated that use fecal coliform.

And based on that data, these would not be

something that you would want primary contact

in, and most likely secondary contact. And

so we think that disinfection is necessary.

MR. DIMOND: Okay. I understand that

you think that the national criteria

documents are outdated. What is your basis

for thinking that the disinfection is

necessary?

MR. SULSKI: We know that disinfection

kills pathogens. We know that the system is

dominated by pathogens from large municipal

effluents which are, in themselves, dominated

by pathogens of human origin. If we reduce

the human originating pathogens in these

effluent-dominated waterways, we believe we

will reduce some risk. And because of the

uses existing in the system, we were

compelled to put in the effluent standards.

MR. DIMOND: It seems to me, I guess

my question then, Mr. Sulski, or, you know,

for anyone on the panel, is I understand

that, you know, if disinfection is required,

yes, it may reduce the level of pathogens. I

guess the question is how do you know the

level of pathogens are at a concentration

that creates a risk? That's the question you

haven't addressed.

MR. TWAIT: That's the reason that we

are proposing a two-year compliance period,

and so that if the District does not --

determines that there is not a perceived

risk, then they can come back to the Board.

MR. DIMOND: Would each industrial

discharger that might have bacterial issues

have to come back to the board as well?

MR. TWAIT: I would think that it

could all be addressed in one rulemaking for

the entire water body.

HEARING OFFICER TIPSORD: Mr. Andes,

did you have something?

MR. ANDES: Fred Andes for the

Metropolitan Water Reclamation District,

Greater Chicago. Couple of questions along

those lines. First, I think that the answers

the Agency was giving were using pathogens

and bacteria interchangeably; but, in fact,

this infection might reduce bacteria, but it

won't eliminate all pathogens. Am I right?

MR. TWAIT: Depending on what

technology, yes.

MR. ANDES: Is there any technology

that would eliminate all pathogens?

MR. TWAIT: There is no -- As far as I

know there is no one technology that would

reduce path -- all pathogens. Some are good

at removing viruses, some are especially good

at removing bacteria.

MR. ANDES: Has the Agency studied the

various technologies and the cost and the

feasibility in this situation?

MR. TWAIT: Could you repeat the

question?

MR. ANDES: Has the agency studied the

economics and technical feasibility of those

various options?

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

have.

MR. ANDES: In terms of the risk, and

I believe that Mr. Sulski talked about

reducing risk. In fact, the significant

issue in terms of bacteria in water bodies is

the number of combined sewer overflow

discharges. Am I right?

MR. TWAIT: Yes.

MR. ANDES: Which I believe we talked

about an average of, I think the testimony

last time, was an average of 15 times -- 15

year times about 300 different overflow

points.

MR. TWAIT: Yes.

MR. ANDES: Okay. That also -- So

this proposal doesn't address that at all.

So those sources of bacteria are unaddressed

by this proposal?

MR. TWAIT: They are unaddressed by

this proposal, yes.

MR. ANDES: And any sources of

bacteria from municipal separate storm sewer

systems, MS4s, are also unaddressed by this

proposal?

MR. TWAIT: Correct.

MR. ANDES: Okay. Is there any

quantification by the Agency of the extent to

which the disinfection of certain facilities

will reduce the risk compared to the

remaining risk from bacterial discharges?

MR. SULSKI: It's a matter of

proportions, volumes of undisinfected

effluent to volume of ambient or noneffluent

flow.

MR. ANDES: But is there a comparison

there to the CSOs, MS4s, other sources?

MR. SULSKI: Well, then it's a

frequency of proportion, how many days are

there storm flows compared to how many

nonstorm flow days there are.

MR. ANDES: Is that in the record

anywhere?

MR. SULSKI: How many storm flow days

there are?

MR. ANDES: And frequency and extent

of those discharges from MS4s and CSOs?

MR. SULSKI: We submitted some

district wet weather data today, and so there

is some information in the record on that

that the District generated.

MR. ANDES: Is that only as to -- What

discharges does that data pertain to?

MR. SULSKI: It pertains to rain

events and levels of bacteria within the

waterways during heavy rain events, moderate

rain events, nonrain events.

MR. ANDES: Okay. But that doesn't

differentiate between various sources of the

bacteria, right?

MR. SULSKI: It does not. But, again,

it's proportions. The district dominates --

the district effluents dominate the system on

an average of 70 percent, 70 percent of the

waste waters is municipal --

MR. ANDES: Over the course of a year?

MR. SULSKI: Yes, yes. Sometimes it's

much higher, sometimes it's less. Sometimes

they dominate the system especially in their

recreating months of August or so when flows

are typically low, they can be 100 percent of

the ambient flow.

MR. ANDES: But the contributions of

bacteria from other sources, particularly

during wet weather events from MS4s and from

CSO discharges which are not addressed by the

proposal, the agency hasn't really done any

kind of analysis to the extent of the risk

caused by those discharges. Am I right?

MR. SULSKI: The extent of the risk,

no.

MR. ANDES: Okay. And as to the

two-year time frame, and I believe we've

talked about this before, but we'll

eventually have testimony about the time

lines for the studies. If you assume for a

moment that the results of the studies won't

be available probably until 2010, which is

very close to your two-year, and if the

studies aren't available until then and then

the parties have to evaluate the results of

the studies and then determine whether

they'll go to the Board and ask the Board to

change the rule, where is the time for the

District and other dischargers to, if, for

example, the Board decides to affirm the

rule, where is the time for the dischargers

to install their system needed to comply?

MR. TWAIT: I've addressed this

previously, but the intent was for the rule

to -- to give the district some time to

engineer the studies now while their epi

study is going on and when they get the

reports of the study to implement it. If our

time line is not sufficient, we would be

willing to change the dates.

MR. ANDES: Okay. Thank you.

MR. TWAIT: And our time line is not

two years. I misspoke. If we have a March

1st, 2011, so that would be almost three

years from now.

MR. SULSKI: We base the time line on

what the forecast for the completion of the

epi study was.

MR. ANDES: But in terms of the number

of years from the time when this rulemaking

is done, probably not going to be done soon,

so just a comment.

HEARING OFFICER TIPSORD: Mr. Dimond?

MR. DIMOND: All right. While there

are many questions under some of my

categories that I have not asked, I think

that they've been covered in various and

sundry ways. So I am skipping over many of

them and I'm skipping to the heading of

thermal standards.

HEARING OFFICER TIPSORD: Which is

Page 13 of the prefiled questions.

MR. DIMOND: And there is only one

question left there that I'm going to ask.

And this in itself may just be confirmatory

of what has previously been testified to, but

I'm having a hard time remembering.

It relates to Question No. 1.

Does the Agency currently have any data on

whether or not the Upper Dresden Island Pool

is meeting the proposed temperature limits?

MR. TWAIT: The only data we have on

the Upper Dresden Island Pool IS at the I-55

bridge.

MR. DIMOND: And if you analyze that

data, is the Upper Dresden Island Pool

currently meeting the proposed temperature

limits?

MR. TWAIT: I have not analyzed that

particular data, so I can't give you an

answer to that.

MR. DIMOND: I think the other

questions under that category have been

asked, and I just have a couple of additional

questions, Madam Hearing Officer.

If the Illinois EPA fails to

analyze a use attainability analysis factor

for lack of data or information, doesn't that

create the potential that the Agency will

propose water use designations, and, thus,

water quality criteria that are more

stringent than required by federal law?

MS. WILLIAMS: Which question are you

on? Can you repeat it, because I was busy

looking for it.

MR. DIMOND: Sure. If the Illinois

EPA fails to analyze a UAA factor for lack of

data or information, doesn't that create the

potential that the agency will propose water

use designations, and, thus, water quality

criteria that are more stringent than

required by federal law?

MR. SULSKI: Well, by default we would

have to adopt Clean Water Act goals.

MR. DIMOND: I don't think that

answered my question.

MR. SMOGOR: With the use

attainability analysis, the ultimate

objective is to answer the question can the

Clean Water Act goals be met or not, and if

they can't then why. And the reasons why are

provided by any one of those six factors. So

if you invoke at least one factor, you're

creating enough justification to propose a

use that's less than a Clean Water Act goal,

and then your charge becomes to propose water

quality standards to protect that sub Clean

Water Act goal, for lack of a better term.

So I don't think that if you

didn't consider every -- if you don't

consider every single UAA factor, I don't see

how that necessarily results in

overprotective criteria.

MS. WILLIAMS: I mean I think this,

the way I look at it from the legal side, is

by following out your thought, I guess you

could say that in every general use water

where we haven't gone forward and studied

whether there's a UAA factor to justify

downgrading that general use, then we're

maybe somehow more stringent than federal

law. And I don't think that's -- That's not

my interpretation of more stringent than

federal. I don't believe federal law

prescribes these type of requirements but

leads the stage where they can justify

something less; but then the Clean Water Act

goal, okay, but if not, they need to meet the

full goal. So I may have made it more

confusing --

MR. DIMOND: I think I understand what

you're saying. Let me ask this question. As

to the Upper Dresden Island Pool, the Agency

did not -- it is the Agency's belief that

there are no use attainability analysis

factors that justify a downgrade from the

Clean Water Act goals; is that correct?

MR. SULSKI: Correct.

MR. SMOGOR: For aquatic life use.

That's correct.

MR. DIMOND: But you have justified

downgrades on recreational?

MR. TWAIT: Yes.

MR. DIMOND: Let's stick with the

aquatic life uses. You haven't downgraded,

based on a UAA factor, but there are some UAA

factors that you, frankly, just didn't

analyze, correct?

MR. SULSKI: Well, we didn't -- We

relied on the data that was submitted to us

through the stakeholder process and through

outreach to answer the questions. We worked

with what we had and we can't work with what

we don't have.

MR. DIMOND: There were some UAA

factors where Illinois EPA didn't do a full

analysis for the Upper Dresden Island Pool;

is that correct?

MS. WILLIAMS: Can you specify what

factors you're taking about?

MR. DIMOND: Well, the economic one

for one. The Agency didn't attempt to do a

full analysis. Isn't that exactly what the

final UAA report for the lower Dresden -- I'm

sorry -- for the Lower Des Plaines River

says?

MR. SMOGOR: I don't think that those

six factors that we're talking about are

absolutely required of a use attainability

analysis. I think the six factors that we're

referring to, which I think are at

40 CFR 131 10 G, I believe, those six factors

are the justification or potential

justification for proposing something less

than a Clean Water Act goal. For the Upper

Dresden Island Pool in terms of aquatic life,

we did not propose something less than the

Clean Water Act goal; and, therefore, those

six factors aren't necessarily directly

required or relevant.

MR. DIMOND: Well, but if you fail to

analyze one of those factors, isn't it

possible that you're designating a use for

that stretch of waterway that is more

stringent than is required by a federal law?

MR. SMOGOR: Well, we believe that we

went through a use attainability analysis,

which is more or could be different than just

going through those six factors. And the

results of our use attainability analysis

were that the Clean Water Act aquatic life

goal is obtainable in Upper Dresden Island

Pool.

MR. DIMOND: But there was some

factors that the agency did not fully

analyze.

MR. SMOGOR: It is possible that a use

attainability analysis, if it does not -- if

it doesn't -- If it's not comprehensive

enough can miss something. But what I'm

trying to say is a use attainability analysis

is not defined by going through each of those

factors. Those are not the same exact

things. Doing a use attainability analysis

and going through six of those factors at

40 CFC 131 10 G are not necessarily

equivalent exercises.

MR. SULSKI: And to just say that

there's a universe out there, why don't you

look at the whole universe. We received, and

in this case we have a lot of data, we have a

lot of data than your typical UAA which is

oftentimes just a drive-by, look up the

stream and fill out a check list. We have a

lot of chemistry, we have a lot of habitat

data, we have a lot of data. But, you know,

if you're suggesting that because I didn't

take boron samples in the soil in the

tollstoin (ph.) deposits, and there's, you

know, I don't know whether boron is a problem

or cadmium somewhere else. I mean we dealt

with what we had. We looked at what we had.

We can't look at what we don't have. We

asked for everything available.

MR. DIMOND: Madam Hearing Officer,

thank you, agency witnesses, thank you. I am

done.

HEARING OFFICER TIPSORD: Thank you,

Mr. Dimond. That moves us on to Corn

Products, Mr. Safley.

MR. SAFLEY: Yes, ma'am. Am I okay to

stay here for the agency witnesses?

HEARING OFFICER TIPSORD: I think so.

MR. SAFLEY: And for the court

reporter. I should have asked the court

reporter first. I apologize.

Tom Safley on behalf of Corn

Products International. We also have tried

to go through our questions. Obviously we've

had an opportunity to ask some of them

already. Some of them have been answered in

the context of other parties' questions, so I

will go through them and indicate which

question we're on.

The first question that remains to

be asked is on Page 2, Question No. 2. While

developing the proposed water quality

standards, what steps did the agency take to

evaluate the characteristics of the Chicago

Sanitary and Ship Canal such as flow,

temperature, discharges into the water body,

et cetera?

MR. SULSKI: We started a stakeholder

group, we solicited those stakeholders for

any and all data that they could provide to

us, we even reached beyond the stakeholder

group to the public at large through public

hearings to obtain, you know, any data that

we could get our hands on, and then we even

utilized additional data that was provided

for us by MWRD in terms of chemistry in

betweeen the last stakeholders' meeting and

our proposal.

MR. SAFLEY: Going on, and I'm going

to alter this next question just a little bit

to avoid a compound question. At times the

Chicago Sanitary and Ship Canal has low flow.

Does the Agency know how that condition will

impact Corn Products' ability to comply with

the proposed standards?

MR. TWAIT: The 7Q10 low flow value

would be what the Agency uses to set permit

limits based on any allowable mixing.

MR. SAFLEY: It's my understanding

from the materials that the Agency has

submitted in support of the rulemaking that

there is human manipulation of the flow and

the levels of water in the Chicago Sanitary

and Ship Canal in anticipation of storm

events; is that correct?

MR. SULSKI: Correct.

MR. SAFLEY: How would that human

manipulation be taken into account in setting

permit limits or by Corn Products in making

sure it's in compliance with the proposed

rules?

MR. TWAIT: The U.S. geological -- no.

The Illinois State Water Survey has developed

a 7Q10 map for low flows, and they have

determined the low flows on -- yeah, the

7-day 10-year low flows on the system.

HEARING OFFICER TIPSORD: Is that map

part of the record?

MR. TWAIT: I do not believe so.

MR. SULSKI: So that's what we look at

when we're looking at mixing zones standards,

et cetera. When we're talking about

manipulations, we're talking about dealing

with storm events where flows are

considerably higher, so.

MR. SAFLEY: Once the storm event

begins; is that correct? It was my

understanding that the flow or the levels may

be reduced in the canal in anticipation of a

storm event that is not yet occurring but is

on the way.

MR. SULSKI: In anticipation of a

storm event they tried to evacuate the -- and

will increase the flows.

MR. SAFLEY: Okay.

MR. SULSKI: And then as the storm

comes, they will allow the storm to refill

the system. If the storm isn't as intense as

anticipated, they may have to use some

discretionary or some navigation make-up

water from the lake.

MR. SAFLEY: And, Miss Tipsord, I had

the same question which is that the map you

were looking at in the record? And I think

the answer to that was no?

MR. TWAIT: Correct.

HEARING OFFICER TIPSORD: We need a

copy.

MR. SAFLEY: We request that it be

placed in the record -- Excuse me.

MR. TWAIT: Can I provide a link to a

website the Illinois State Water Survey's

website? Because they have the map

digitally. I don't know that the Agency

has --

HEARING OFFICER TIPSORD: If that's

all you can give us, that's all you can give

us.

MR. TWAIT: I'll see if I can get a

map and I'll provide a link.

MR. SAFLEY: I just want to ask

Mr. Twait, and you started to do this, if

you, for the record, could clarify the term

7Q10 so the record is clear.

MR. TWAIT: Seven day low flow in a

ten-year period.

MR. SAFLEY: Just so I understand, the

Agency in setting permit limits for discharge

into this water body that was faced with

these human manipulation events, the Agency

would look at that map that you referenced

and take the 7Q10 flow into account in

setting those permit limits; is that correct?

MR. TWAIT: Yes.

MR. SULSKI: Again, there aren't human

manipulations -- I shouldn't say never, but

human manipulations are generally associated

with high -- with rain events, episodes.

MR. SAFLEY: Okay. Moving on then to

Page 3, Question No. 5. In the Agency's

description of the regulatory history of

prior rule makings establishing water quality

standards for the Chicago Area Waterway

System and Lower Des Plaines River, the

Agency discusses arguments that, quote, while

an increased temperature standard had

perceived benefits such as maintaining the

river for year-round navigation and speeding

up the degradation of ammonia, there would be

no advantage in adopting a general use

designation because the waterway would be

incapable of supporting aquatic life anyway

and use of the river for recreation up to the

Interstate 55 bridge was nonexistent due to

industrialization, closed quote. And that's

statement of reasons at Page 10.

On to the question: If an

increased temperature standard increases the

degradation of ammonia, a lower temperature

standard, as the Agency proposes, will

decrease the speed of the degradation of

ammonia, thus increasing the amount of

ammonia in the CAWS and the Lower Des Plaines

River. Has the Agency considered the impact

that increased ammonia concentrations will

have on the environment?

MR. TWAIT: To answer your question,

when the Agency made those statements, it was

1972, and 30 years ago ammonia was a toxic

issue, the level of ammonia in the receiving

stream was toxic to certain fish. Now the

District removes ammonia at the wastewater

treatment plant. So the ammonia is no longer

toxic, and so that argument is no longer

valid. The ammonia is removed at the

treatment plant rather than in the receiving

stream.

MR. SAFLEY: So then it would be

correct then to summarize that the Agency

does not consider, at the present time, the

lowering of the temperature to raise any

concerns with regards to the levels of

ammonia in the receiving water body?

MR. TWAIT: Correct.

HEARING OFFICER TIPSORD: If I may,

Mr. Twait. When you say those statements,

you're talking about statements especially

for 30 years ago, you're talking about prior

rulemakings, and this quote was a summary or

an indication of what occurred or what was

discussed in a prior rulemaking; is that

correct?

MR. TWAIT: Correct.

MS. WILLIAMS: They were probably

statements by the boards not the agency.

HEARING OFFICER TIPSORD: Thank you.

MR. SAFLEY: I'll move on to our

Question 7 at the bottom of Page 4. The

agency states that when the CAWS and Lower

Des Plaines River were designated as

secondary contact, the waters had certain

characteristics including flow reversible

projects, low velocity and stagnant flow

condition. Statement of reasons at Pages 19

to 20. Does the Agency believe that such

conditions have changed, particularly the

conditions of the Chicago Sanitary and Ship

Canal?

MR. SULSKI: I have a question on the

flow reversible projects. I don't see an

exact quote here. Can you just clarify what

you mean by flow reversal projects?

MR. SAFLEY: Let me grab my copy of

the statement of reasons.

HEARING OFFICER TIPSORD: It's at the

bottom of Page 19, I think, is when he first

refers to it.

MR. SULSKI: In the statement of

reasons.

MR. SAFLEY: Yes, yes.

MR. SULSKI: What's referred to here

is when they actually dug the canal. So they

reversed the flow of the Chicago Calumet

River systems. So those conditions continue.

MR. SAFLEY: Okay. What about the

reference to low velocity and stagnant flow

conditions? Does the Agency consider those

conditions in the Chicago Sanitary and Ship

Canal to remain?

MR. SULSKI: At times there are low

velocities throughout the system. The

stagnant flow conditions have been associated

with a couple of water bodies that we've

talked about: The south fork of the south

branch where there is no input unless sewers

are overflowing, and the north shore channel

upstream of the north side water reclamation

plant where there is limited flow due to less

discretionary diversion, less diversion from

the lake through that reach.

MR. SAFLEY: Okay. So then just to

clarify that, this -- the Agency does not

believe stagnant water conditions to be an

issue in any other portions of the Chicago

Area Waterway System than the two you just

named; is that correct?

MR. SULSKI: No. I wouldn't call it

stagnant.

MR. SAFLEY: Well then sticking with

the low velocity, moving on to the next

question. In light of the low velocity

issues, how can dischargers comply with the

proposed standards if such condition is

characteristic of the Chicago Sanitary and

Ship Canal and hinder the Chicago Sanitary

and Ship Canal's ability to attain water

quality standards?

MR. SULSKI: Well, of the parameters

we looked at, we recognize these stagnant

flow conditions as hindering the achievement

of the proposed EO standards, and we

recommended or we arrived at options for

overcoming that deficiency. That was done

years ago as well in the Cal-Sag System where

we had dissolved oxygen deficiencies where

the side stream elevated aeration stations

(ph.) were.

So I guess the extent that

information was brought forward, we examined

flow conditions and how they might affect

water quality, and we're at a difficulty with

some parameters.

MR. SAFLEY: That's what I wanted to

investigate, Mr. Sulski. You mentioned DO.

Are there any other parameters that the

Agency is aware of that it feels are going to

be a particular problem with regard to the

flow in the Chicago Sanitary and Ship Canal?

MR. SULSKI: I think temperature is

going to be a problem.

MR. SAFLEY: Okay. And how does the

100

low flow affect temperature in the Chicago

Sanitary and Ship Canal?

MR. SULSKI: The amount of water that

I guess can be withdrawn for cooling without

dominating, removal of all the water from the

system during low flow periods.

MR. SAFLEY: Let me phrase my question

a little differently.

Does the low flow -- when

there are low flow conditions in the Chicago

Sanitary and Ship Canal, do those low flow

conditions result either in increased

temperatures in the Chicago Sanitary and Ship

Canal or a slower decrease of temperatures in

the Chicago Sanitary and Ship Canal?

MR. TWAIT: Well, part of that depends

upon how dischargers are reacting to those

low flows. And I know Midwest Generation,

I'm not sure how they operate the facilities

and the Chicago Sanitary and Ship Canal, but

it's my understanding that during low flows

for their Joliet facility they at least, they

derate when low flows are occurring. And I'm

not sure if they have to do that for the

101

Fisk, Crawford and Will County facilities.

MR. SAFLEY: Is it likely that

facilities that are discharged into the

Chicago Sanitary and Ship Canal are going to

have higher thermal values at their intake

when there are low flow conditions in the

water? Are they going to be receiving water

because of those low flow conditions?

MR. SULSKI: I haven't done that

analysis, because low flows aren't

necessarily associated with your highest

temperature. You can have winter low flows

when it's very cold out. There's no other

inputs into the system except for the

wastewater treatment plants. So --

MR. SAFLEY: There's not necessarily a

correlation.

MR. SULSKI: Correct.

MR. SAFLEY: Well, you mentioned -- We

mentioned the DO and temperature. Are there

any other parameters that are impacted by low

flow conditions in the Chicago Sanitary and

Ship Canal?

MR. SULSKI: Bacteria would certainly

102

be.

MR. SAFLEY: Any others?

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

HEARING OFFICER TIPSORD: Mr. Safley,

slow down when you're reading.

MR. SAFLEY: Yes, ma'am. Moving on to

our Question 9 on Page 5.

The Agency provides a short

section in its statement of reasons on the

technical feasibility of the proposed

rulemaking. The Agency concludes its brief

technical justification by explaining that

Midwest Generation is conducting a study

regarding how to provide cooling for its

facilities where there is limited land to

install cooling capacity, statement of

reasons at Page 99. The Agency states that

the Midwest Generation concludes that, quote,

or that it, quote, is technically infeasible,

paren, or economically unreasonable, closed

paren, to install additional cooling capacity

as these facilities. Section 316 of the

Clean Water Act allows Midwest Generation to

petition for relief from these requirements,

103

closed quotes.

Skipping the first question

that's there, going on to the second. How

would Midwest Generation receiving regulatory

relief from the proposed new thermal

requirements affect dischargers downstream

from Midwest Generation?

MS. WILLIAMS: Well, you can skip the

first question if you want, but I don't think

that we can answer the second question

without explaining that last time I explained

that that statement that you just quoted was

an incorrect and misleading explanation of

Section 316 of the act.

MR. SAFLEY: Okay. I apologize for

not changing the question in light of that.

MS. WILLIAMS: That's okay.

MR. SAFLEY: Well then, removing that

reference to 316 more broadly, how would

Midwest Generation receiving regulatory

relief of any sort or by any mechanism from

the proposed new thermal requirements affect

the dischargers downstream from Midwest

Generation.

104

MR. TWAIT: That would be dependent

upon the types of relief that the Board

grant. It could change the water quality

standard then they would have to take all the

other dischargers into account.

MR. SAFLEY: Okay. And I thought it

was understood in this, it certainly was

intended. Regulatory relief that change the

water quality standard so it will increase

the water quality standard in light of

Midwest Generations' situation. In that case

then, Mr. Twait, it's your understanding the

Board would have to take into account

dischargers downstream from Midwest

Generation as well.

MR. TWAIT: I would certainly think

that that would need to be done.

MS. WILLIAMS: I can say I've never

been part of an adjustment standard where the

Board did not ask that question and expect

the parties to provide that information.

MR. SAFLEY: Moving on then, thank

you, to our Page 7. And I just am realizing

that my pagination may be a little different,

105

and I apologize. This is under Roman Numeral

II, Question 14 -- I'm sorry -- Question 15.

I apologize.

HEARING OFFICER TIPSORD: Page 7.

MR. SAFLEY: Again, Question 15, now

we're on to the issue of chlorides. How will

the Chicago Sanitary and Ship Canal's

attainment with the agency's proposed

chloride standard be determined?

MR. ESSIG: That will be determined by

looking at water quality data from various

organizations including ourselves, comparing

it to the water quality standard.

MR. SAFLEY: Mr. Essig, can you

identify the other organizations besides what

will be the source of the data?

MR. ESSIG: MWRDGC provides water

quality data to be used by the agency in the

integrated report. We also get data from

other outside sources, not necessarily from

this system, but that could happen as well.

MR. SAFLEY: When you say other

sources not on this system, you mean data not

regarding this system or -- I'm not sure I

106

understand.

MR. ESSIG: Currently we do receive

data from other organizations, but not

necessarily on this system right now. But

that doesn't mean that wouldn't happen in the

future. For instance, USGS might be doing a

study and we might utilize some of their

data.

MR. SAFLEY: It would be data about

the Chicago Sanitary and Ship Canal?

MR. ESSIG: Yes, yes.

MR. SAFLEY: When you said not on this

system --

MR. ESSIG: Currently right now

primarily what we're using is data either

from MWRDGC or --

MR. SAFLEY: With regard to the

Illinois EPA data is that from industry

monitoring stations or --

MR. ESSIG: Yes. From the ambient

part quality station.

MR. SAFLEY: And some of these -- I

have some follow-up questions to that that

are not here in the prefiled questions.

107

But just to clarify a few issues

that were discussed to some extent

previously. To what degree does the Chicago

Sanitary and Ship Canal currently exceed the

Agency's proposed chloride standards?

MR. ESSIG: At this point I don't

know. I have not done the analysis.

MR. TWAIT: Could you repeat that

question?

MR. SAFLEY: Sure. To what degree

does the water in the Chicago Sanitary and

Ship Canal currently exceed the Agency's

proposed chloride standards?

MR. TWAIT: I did take a look at data

provided by the district for 2001 through

July of 2003. And there are periodic

violations in the wintertime. The District's

data is taken once per month. And so it's

difficult to say whether these exceedances

happen for a one-day event or for a three- or

four-week period.

MR. SAFLEY: Okay. There was a little

bit of discussion at the table, but I

couldn't hear it.

108

MR. SULSKI: I'm sorry. Attachment W

is the data he's looking at.

MR. SAFLEY: That's what I was going

to ask. So you're referencing the data in

the records?

MR. SULSKI: So it actually goes

beyond 2003 up to 2006.

MR. SAFLEY: And that Attachment W

data, am I correct that that is data on a

monthly basis; that's not, as we had with

some of the temperature data, an average of a

period of years? I don't have that. I'm

sorry. I don't have that exhibit in front of

me, so. Is it the actual monthly data or is

it an average over several years of different

monthly values?

MR. TWAIT: I'm not sure what was

provided. It's, as Rob said, it's individual

data.

MR. SAFLEY: So if I wanted to find

out what the monthly data was for October

2002, I could go to that exhibit?

MR. SULSKI: Correct. But I did -- I

misquoted on the dates here. Because this

109

Attachment W is a combination of two sets of

data: One is the 2001-2006 effluent samples

from the district for temperature, and then

the other part is the 2005 and 2006 water

quality sample results. So 2005 and 2006

water quality data.

MR. SAFLEY: At what point is the

water quality data collected?

MR. SULSKI: Pardon me?

MR. SAFLEY: At what point is that

water quality data collected? You

differentiated from effluent data. Is there

a station --

MR. TWAIT: They have numerous

stations throughout the system.

MR. SAFLEY: I guess I was asking do

you know -- were you provided information on

at what station they collected that data?

MR. SULSKI: It is -- The station is

indicated within the table, and you can go to

their website and find out, look at their map

and look at where all the stations are.

MR. SAFLEY: Okay. Mr. Twait, you

referenced, in looking at that data, that

110

there were some exceedances of the Agency's

proposed water quality standard during the

winter months; is that correct?

MR. TWAIT: I'm sorry. Let me back

up.

MR. SAFLEY: Sure.

MR. TWAIT: Looking at the dates and

Attachment W doesn't correspond exactly to

what I looked at, and we can provide that

additional data if it's not already provided.

MR. SAFLEY: Well, Mr. Twait, is the

additional data that you looked at from PWRD

or --

MR. TWAIT: It is from PWRD.

MR. SAFLEY: I ask it to be provided

or clarification given to -- certainly if

it's already in the record.

But it's your recollection

that the data, the other data that you

reviewed, Mr. Twait, showed exceedances

during at least on some occasions during the

winter period of the proposed chloride

standard; is that correct?

MR. TWAIT: Yes.

111

MR. SAFLEY: Okay. And we talked at

one of the previous hearings about the

relationship between road salting in the

winter months and chloride levels. I guess,

just to make sure I understand, to what

degree would you attribute those winter

exceedances to the salt -- to road salting

and to what degree would you attribute those

winter exceedances to something else?

MR. TWAIT: I don't know that I would

attribute them to anything other than road

salting, because they only happen during the

winter.

MR. SAFLEY: Okay. We also touched a

little bit in one of the last hearing dates

on efforts by local governments that are

engaged in road salting to institute best

management practices. Are those efforts that

are currently ongoing or are those efforts

that the Agency is working to assist those

municipalities in implementing in the future?

MS. WILHITE: Marsha Wilhite. That is

ongoing as part of a TMEL.

MR. SAFLEY: Okay. Does the Agency

112

have any information on how those ongoing

efforts have reduced the levels of chlorides

in the Chicago Sanitary and Ship Canal, if at

all?

MS. WILHITE: I would need to check.

I'm not certain that we have that information

because I'm not certain what the

implementation dates were. The practices

have been identified and be implemented this

coming season, I'm not certain, but I can

check and provide that information.

MR. SAFLEY: And, Ms. Wilhite, you

mentioned that this was in connection with

the TMDL process. There's a TMDL process

currently ongoing for Chicago Sanitary and

Ship Canal?

MS. WILHITE: No, no. I'm sorry. I

thought you were speaking generally about

practices for road salting.

MR. SAFLEY: No. I'm sorry. If I

did, I misspoke. I meant to be speaking more

particularly with regard to the Chicago

Sanitary and Ship Canal.

MS. WILHITE: I'm not aware of

113

practices that are being promoted by the

Agency that affect that water body at this

time.

MR. SAFLEY: Thank you.

MR. SULSKI: I'd like to add to that,

though, these municipal separate storm sewer

permits are out and they have a general BUP

requirement to look at minimizing

contamination of storm water; that includes

where you store your salt, how you use your

salt, things like that. So those permits are

out there, and road salts are identified in

those permits.

MR. SAFLEY: Just to clarify that --

MS. WILLIAMS: Can I clarify first?

When you say those permits, are you talking

about individual MS4 permits or a general?

MR. SULSKI: A general MS4 permit

would be the permit.

MR. SAFLEY: When was that put out

with those references?

MR. SULSKI: A long time ago. It was

staged depending on the population size. I

would have to -- I don't know the dates

114

offhand, but it's been for a while. First

the very large municipalities -- the two cuts

in the MS4 permits. First it was very large

and then how long ago did we --

MS. WILHITE: 2003.

MR. SULSKI: 2003.

HEARING OFFICER TIPSORD: Mr. Forte

has a follow-up.

MR. FORTE: These MS4 permits have

been outstanding for a few years anyway in

general terms. And the terms of the MS4

permits you believe would restrict or require

the municipalities to do something to reduce

road -- snow melt or road salt runoff during

snow melt conditions. Is that your view of

what those permits should require?

MR. SULSKI: They would require the

permit team to look at all instances where

storm water can be contaminated.

MR. FORTE: And this would be in the

form of typically -- municipalities would

then be in a position of adopting a best

practice plan of some sort in order to

address that?

115

MR. SULSKI: Correct.

MR. FORTE: And does the agency have

any data on the measures that have been taken

on the relative success of those measures in

terms of --

MR. SULSKI: We're right at the point

of that permits where the BMPs are beginning

to be due, so we're just beginning.

MR. FORTE: So there's really not a

track record to say this has worked and this

has not worked?

MR. SULSKI: Not along the Sanitary

and Ship Canal.

MR. SAFLEY: And, Mr. Forte got to

some of my same thoughts on follow-up

questions --

HEARING OFFICER TIPSORD: Before that,

Mr. Safley, let's just be clear, BMP is best

management practice.

MR. SULSKI: Yes.

MR. SAFLEY: And, Mr. Sulski,

Miss Wilhite, I appreciate the clarification

on that. Just to close out this line of

questioning then, would it be accurate to

116

state that the Agency does not have data with

regard to the Chicago Sanitary and Ship Canal

to be able to analyze whether these BMPs that

are due under these MS4 permits are going to

result in levels during the winter being

lower than the Agency's proposed standards?

MR. SULSKI: We don't have data. That

is correct.

MR. SAFLEY: Does the Agency

anticipate that in the next few years as

these BMPs become due it will generate some

of that data?

MR. SULSKI: As BMPs become due and

become implemented, it would hopefully be

reflected in the ambient water quality.

MR. SAFLEY: But it's correct that the

Agency doesn't have any way to say right now

prior to that implementation that those

current BMPs are going to result in this

water body being in containment at all times

for the proposed chloride standard?

MR. SULSKI: I could not make that.

MR. SAFLEY: Thank you.

HEARING OFFICER TIPSORD:

117

Mr. Ettinger, did you have a follow-up?

MR. ETTINGER: I missed. He said

proposed chloride standard. You mean the

proposed chloride standard for this secondary

treatment water, that change? You're not now

proposing any changes in the chloride

standard for general use.

MS. WILLIAMS: Applicability of the

general use standard to these waters.

MR. ETTINGER: Thank you.

HEARING OFFICER TIPSORD: Mr. Safley?

MR. SAFLEY: Thank you. All of our

questions on Page 8 have been asked and

answered or we're happy to go past them.

And, again, I apologize if my pagination is

different. The next question I have is our

No. 23 in this section which is on my page 9.

HEARING OFFICER TIPSORD: My Page 9 as

well.

MR. SAFLEY: Thank you. How is the

critical use of chlorine compounds which are

used for cooling system disinfection and

zebra mussel control regulated under the

proposed chloride limits?

118

MR. TWAIT: We regulate the chlorine

compounds through the TRC water quality

standard, total residual chlorine water

quality standard. The use of chlorine

compounds for disinfection or mussel control

is going to introduce a very small amount of

chloride. And it's not something that the

Agency has determined is sufficient or is

significant.

MR. SAFLEY: Okay. And to follow-up

on that, Mr. Twait. We talked -- or you

mentioned a little bit earlier the -- I think

it's 304.103 which provides that if a

facility is not increasing mass to background

level, adding to background levels or is

doing that in -- I don't remember the exact

terminology -- in an insignificant manner,

then it does not have an obligation to reduce

its discharge below background levels. Has

the Agency considered that addition of --

small addition of chlorides through the use

of chlorine for disinfection or zebra mussel

control in the context of that exception in

304.103?

119

MR. TWAIT: 304.103 talks about the

trace amounts of incidental addition of

traces of materials not utilized or produced

in the activity of the source of the waste.

And I believe that the chlorides created with

the use of chlorine would fall into that.

MR. SAFLEY: Thank you. Moving on to

our Roman Numeral III which is questions

relating to dissolved oxygen.

HEARING OFFICER TIPSORD: I told

everyone we'd take a break around 3:00. I

have about three minutes until 3:00. So

let's go ahead and take about a 30-minute

break and we'll come back on the record.

(Short break taken.)

HEARING OFFICER TIPSORD: Let's get

started. We're ready to get on the record.

Mr. Safley, would you like to continue.

MR. SAFLEY: Yes, ma'am, I would like

to continue. Thank you.

And I do need to back up just

a second to one other question before we can

get to the dissolved oxygen questions.

Our Question 24, which is on

120

my Page 10, references dehalogenation. And

I'm not going to ask the exact questions

here, but I wanted to follow up on the

subject in light of the discussion that we

had had prior to the break.

Mr. Twait, before the break we

were discussing how the use of chlorine, for

example, zebra mussel control could result in

small quantities of chloride in the

discharge. Do you recall that discussion?

MR. TWAIT: Yes.

MR. SAFLEY: And I wanted to follow up

on that discussion and our discussion of how

that would intersect or be viewed under

Section 304.103 by discussing dehalogenation.

It's our understanding and experience that

dehalogenation is often achieved by the use

of bisulfate compounds, the use of which

would result in small quantities of sulfates

in a wastewater discharge. Would you view

and the Agency view that kind of small

addition of sulfates to wastewater stream

dehalogenation in the same way that we

discussed the use of chlorine for zebra

121

mussel control and that resulting in a small

amount of chlorides in the wastewater

discharge?

MR. TWAIT: Yes, we would.

MR. SAFLEY: Thank you.

Moving on to Roman Numeral

III, questions related to dissolve oxygen.

And our Question No. 29, and I want to try to

see if I can ask this, and actually this

series of questions, in a way that doesn't

get us repeating a lot of things that we've

already talked about. We discussed earlier

how attainment of the Chicago Sanitary and

Ship Canal, for example, with chloride

standard might be ascertained, and the panel

responded that it might look at its own data

from industry monitoring stations, it might

look at data from the MWRD, it might look at

data from other third parties such as the

Illinois State Water Survey. Would that

be -- Would that answer be the same with

regard to our Question 29 relating to how

Chicago Sanitary and Ship Canal's attainment

with the proposed dissolved oxygen standard

122

would be determinable?

MR. ESSIG: Yes. That would be

correct.

MR. SAFLEY: Then we've already

discussed chloride. Would the answer be the

same, again, just to kind of try to work

through this, with regard to the Agency's

proposed sulfate standard, the use of --

well, and you just answered with regard to

DO; is that correct? Would the Agency look

at the same kind and source of information

with regard to sulfates?

MR. ESSIG: Yes.

MR. SAFLEY: And what about for

thermal issues on the Chicago Sanitary and

Ship Canal?

MR. ESSIG: Yes. That would be the

same.

MR. SAFLEY: Moving on to our

Question 30. With regard to all of those

parameters or if we need to break up, we

certainly can, how many tests must be

conducted to determine noncompliance with the

Chicago Sanitary and Ship Canal with a

123

particular standard?

MR. ESSIG: Well, it would depend on

the type of parameter that we're looking at.

For dissolved oxygen, basically we utilize --

We look at data over a three-year period, and

if less than 10 percent of the values are

below -- or I should say if more than 10

percent of the values are above the minimum

dissolved oxygen standard, then it would be

listed as impaired for dissolved oxygen. If

there's, I forget -- is there a mean for the

Sanitary and Ship Canal?

MR. SMOGOR: Well, let's see, Cause D,

we've proposed a daily minimum, and we've

also proposed a seven-day average of daily

minimum.

MR. ESSIG: So in that case if there

was one seven-day period that was below that

standard then it would possibly be listed.

In terms of something like chloride or

sulfate, basically we're looking at the same

situation looking at three years' worth of

data, but in that case it would take about

two samples that were above the standard to

124

be listed as DO.

MR. SAFLEY: Two samples in a

three-year period?

MR. ESSIG: Yes.

MR. SAFLEY: Sampling on how often a

basis?

MR. ESSIG: A minimum of ten samples.

It's a basic guideline, but generally our

ambient program and MWRD's ambient program

with sampling at a minimum at least nine

times a year, and MWRD does either monthly

or, in some cases at some locations, I think

weekly.

MR. SAFLEY: Okay. So when you say a

minimum of ten samples, you mean over a year

period? You don't mean ten samples over

three years.

MR. ESSIG: It's ten samples over a

three-year period is the minimum. But we

very rarely utilize that or --

MR. SAFLEY: You would normally have

much more data than that is what you're

saying?

MR. ESSIG: Yes.

125

MR. SAFLEY: What about with regard to

temperature?

MR. ESSIG: Temperature, I'm not sure

offhand. It might be different depending on

the -- are you -- I'm assuming you're talking

about the proposed --

MR. SAFLEY: And if I wasn't, I

apologize. With regard to all of the

proposed standards.

MR. ESSIG: I would have to take a

look at that. I'm not sure offhand right

now.

MR. SAFLEY: Okay. If the Agency had

at its disposal or was presented with data

other than what you've mentioned from an

intake data from a facility or something

else, would that go into the equation as well

or would that be excluded for some reason?

MR. ESSIG: Generally we would accept

any outside data, maybe not necessarily an

intake, but if it's instream data, as long as

that data is accompanied with a quality

assurance program plan that spells out how

the data is collected and how the data, the

126

water quality samples are analyzed. That

data would be considered also.

MR. SAFLEY: Okay. I think then I can

skip our Question No. 31, moving on to 32. I

think that we've discussed the first part of

that with regard to if testing determines

Chicago Sanitary and Ship Canal is not in

compliance with the standard, will segments

of the Chicago Sanitary and Ship Canal be

designated as noncompliant? I think,

Mr. Essig, that's what you were talking

about, if you got above those thresholds then

that's when a designation would occur.

MR. ESSIG: Right.

MR. SAFLEY: Moving on to the next

Question No. 32. How would the Agency

determine the boundary of the segment

determined -- designated as not in

attainment?

MR. ESSIG: Segments have already been

determined in the integrated report. So we

would be utilizing those same segments

unless -- with this new use designation, and

I'm not sure if any of the segments might

127

have to be adjusted to accomplish those

standards, might be, but generally we have a

segment that's in the integrated report.

MR. SAFLEY: So assuming that a

segment that's already been designated in the

integrated report is within one proposed use,

the Agency is not going to carve up that

segment into smaller pieces for purposes of

attainment or nonattainment. It's going to

stick with those same segments that exist?

MR. ESSIG: Segments can change

depending on -- We do a review of whether

segments make sense in terms of variety of

things like number of dischargers into the

system, tributaries coming in, dams, other

physical features. So it could happen. It

doesn't happen a lot, but potentially it

could happen.

MR. SAFLEY: Does that kind of

assessment happen on any kind of scheduled

basis or is it just as an issue comes up?

MR. ESSIG: Generally more of as an

issue comes up, but it generally will happen

within that every two years when we go

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through the integrated report, we might make

some adjustments to different segments

depending on the situation.

MS. WILLIAMS: At this time maybe I

think it might be logical. We provided a

list in Exhibit 34 last time of all the

segments as we break them out and apply this

waterway. And it was identified, I think by

Ms. Franzetti, that there was a page of that

missing that identified one of the north

shore channel segments. So maybe at this

time we can enter that missing page.

MR. SAFLEY: I certainly have no

objection. Thank you.

HEARING OFFICER TIPSORD: I've been

handed what's Page 67 of a chart that starts

North Fraction Run and ends Onion Creek.

We'll mark that as Exhibit 45 if there's no

objection. Seeing none, it's Exhibit 45.

MR. SAFLEY: Thank you. I think that

the last portion of our Question 32 has been

dealt with in other testimony. So moving on

to our Question 33.

Did the Agency consider the

129

influence of natural weather events on the

Chicago Sanitary and Ship Canal in developing

the proposed dissolved oxygen standard for

the Chicago Sanitary and Ship Canal?

MR. SMOGOR: Not directly, no. I'm

not quite sure what you mean by natural

weather events. I mean just rainfall and

seasonal changes of temperature and that kind

of thing?

MR. SAFLEY: Yes. I think that that's

accurate, and the effect that rainfall or

temperature would have on DO in this

particular water body.

MR. SMOGOR: Not directly. In

proposing the DO standards that we did

propose, though, we did account for some of

the irreversible impacts that are occurring

in that system by proposing aquatic life use

that we believe fits those irreversible

impacts, and then using that use as the

basis. We said what are the DO standards

that would represent attainment of that use

or allow attainment of that use.

MR. SAFLEY: Thank you. I apologize.

130

I was just crossing out Question 34 because

we talked about that earlier.

Moving on to Question 35. If

a combined sewer overflow or other weather

event causes or contributes to a condition of

noncompliance, and I should have stated in

the Chicago Sanitary and Ship Canal with the

DO standard, what steps does the Agency plan

to take to remedy this situation?

MR. ESSIG: Probably if it was listed

as impaired for DO and if CSOs, let's say,

were listed as potential cause of that

impairment, I would imagine that would then

go toward a TMDL to try to rectify the

situation. I don't know, Rob. Is there any

other --

MR. SULSKI: Well, we anticipated or

we identified DO as a stressor, and that's

how the supplemental aeration flow

augmentation scenario or options came about,

so.

MR. SAFLEY: If I can ask a couple of

follow-up questions: First of all, with

regard to TMDLs and them being listed as

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nonattainment, would it be correct to say

that CSOs which are outside the control of

any of the industrial dischargers to the

Chicago Sanitary and Ship Canal, could result

in the Chicago Sanitary and Ship Canal being

designated as nonattainment for DO and those

dischargers not being able to take advantage

a mixing zone of that water body.

MS. WILLIAMS: Can we start the first

part and then --

MR. SAFLEY: Sure. Could CSOs result

in a designation of nonattainment in the

Chicago Sanitary and Ship Canal, just CSOs

for DO?

MR. ESSIG: That could happen.

MR. SAFLEY: Now, before we got to the

point of nonattainment, if the Agency had not

gotten three years of data, for example, yet,

and had not been able to analyze that, how

would a CSO that reduced DO levels in the

water body affect the ability of a discharger

to the water body to comply with the DO

standard?

MR. TWAIT: For dissolved oxygen,

132

typically for municipal sources that have

deoxygenating waste, if there's more than

five to one dilution, we don't typically put

in DO limit into their permit. If a DO limit

was put in the effluent, it would be half the

water quality standard.

MR. SAFLEY: Thank you. Moving on to

our Questions 36 and 37 which have been taken

care of.

Question 38, if the Chicago

Sanitary and Ship Canal does not attain DO

standard, and if the DO, and this should have

stated in noncontact cooling water, is

reduced due to the operation of the system,

how is the decreased DO and the discharge

regulated?

MR. TWAIT: According to what I can

determine talking to the people in the permit

section, a DO limit is usually only put into

a permit for facilities that have

deoxygenating waste such as BOD or ammonia.

Does that answer your question?

MR. SAFLEY: I think it does in part.

I would follow up with would it be correct to

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state you didn't receive any indication from

the permit section that they would intend to

change that practice with regard in light of

the new rules?

MR. TWAIT: No. These are -- when I

was talking to them, I was talking about a

common practice throughout the state. They

don't normally put in DO limits.

MR. SAFLEY: Thank you. Well, then we

move on to our Roman Numeral IV questions

relating to temperature. And our Question

No. 46 which is on my Page 16.

HEARING OFFICER TIPSORD: Page 15 on

the prefiled.

MR. SAFLEY: I knew I was going to get

off eventually.

I think we've -- Because of

the way I expanded some of the earlier

questioning, we've dealt with Question No. 46

and 47. With our Question No. 48, we

discussed a little bit earlier whether the

Agency considered the influence of weather

events in developing the DO standard. If I

can ask a parallel question here with regard

134

to temperature, did the Agency consider the

influence of weather events in developing the

proposed thermal standard with regard to the

Chicago Sanitary and Ship Canal?

MR. TWAIT: Not directly, but by

setting the nonsummer months as -- by setting

the nonsummer month criteria as the

background, it takes seasonal changes into

account.

MR. SAFLEY: Mr. Twait, I want to

follow up on an issue that you've just

reminded me of with regard to background

temperature. It's my understanding that the

Agency set -- its proposed period average

temperatures for the Chicago Sanitary and

Ship Canal based on its -- based on data

regarding temperature at the effluent of the

Stickney Metropolitan Water Reclamation

District plant as well as temperature

measurements at Route 83 crossing over the

Chicago Sanitary and Ship Canal; is that

correct?

MR. TWAIT: Yes.

MR. SAFLEY: And at the last hearings,

135

we discussed the fact that the information or

the data on those measurements that's

provided in the record were averages over a

period of six, five or six or seven years in

both cases. Do you recall that discussion?

MR. TWAIT: Yes.

MR. SAFLEY: I just wanted to clarify

and ask whether since that discussion or

before the Agency has looked at any of that

data either from the Stickney plant or at

Route 83 on a year-by-year basis or a

period-by-period basis during one calendar

year as opposed to averages over a six-year

period to see whether or not the temperatures

recorded in an actual period would be in

compliance on a period average basis with the

agency's proposed standards?

MR. TWAIT: We did not look at the

District's effluent data. When they

submitted that data to us they compiled the

data. We didn't get the individual data

points, and I have looked year by year and

period by period, and there are some

instances where the period average would be

136

violated.

MR. SAFLEY: I'm sorry. Just to make

sure I understand, you have looked year by

year, period by period for Stickney or

Route 83?

MR. TWAIT: Route 83.

MR. SAFLEY: At Route 83.

MS. WILLIAMS: I think this was data

that we were asked for at the last hearing,

so could we enter that now, if that's okay.

HEARING OFFICER TIPSORD: Yes.

MS. WILLIAMS: Maybe we should have

Scott explain what it is to sort of get the

foundation.

HEARING OFFICER TIPSORD: That's fine.

MS. WILLIAMS: But I'll hand you some

CDs marked MWRDGC continuous DO and

temperature data for select CAW stations.

Scott, please explain what

these are.

MR. TWAIT: Yes. The CD has

continuous temperature and DO data. And by

continuous, the samples were taken once an

hour, the Excel files located on the CD with

137

station names before -- with station names

have data from August 1998 through December

2002. The Excel file, continuous DO temp

data dot XLS has data for these stations from

January 2003 through June 2007. This -- That

file that I mentioned also has data from some

other stations from August 1998 through June

2007.

HEARING OFFICER TIPSORD: If there's

no objection, we'll mark that CD as

Exhibit 46. Seeing none, it's marked as

Exhibit 46.

MS. FRANZETTI: Could I just ask a

quick question? I may have misheard at the

very beginning. Is this the District's data?

MR. TWAIT: Yes.

MR. SAFLEY: So, Mr. Twait, we would

be able to look at that data that's on there

as you have done and on a period-by-period

basis and make an assessment as to what --

how the temperatures compared to the Agency's

proposed standards at Route 83; is that

correct?

MR. TWAIT: Yes. All of the data is

138

there.

MR. SAFLEY: Okay. But the Agency,

you stated earlier, does not have similar

data for the Stickney effluent; is that

correct?

MR. TWAIT: No, I do not.

MR. SAFLEY: Well, just to follow-up

on that, and this leads into our Question

No. 51 which I suspect is on Page 16. In

light of the data, Mr. Twait, that you've

seen at Route 83 and the fact that at least

in some circumstances it shows noncompliance

with the Agency's proposed period averages,

does that mean that under the Agency's

proposal no mixing zone would be possible or

allowed for temperature of the Chicago

Sanitary and Ship Canal?

MR. TWAIT: Well, past data -- this

data that we have doesn't have any controls

on any of the discharges. So to say that

when certain facilities are controlled, there

may not be violations. In some of the

stations downstream of that I did not find

any violations.

139

MR. SAFLEY: Okay. Well, then to

elaborate on that a little more, would it be

correct to state that the Agency does not

view this data as a source that it would

utilize to determine attainment or

nonattainment for thermal in the Chicago

Sanitary and Ship Canal?

MS. WILLIAMS: Are you asking him

after the proposal is final?

MR. SAFLEY: Yes, I think so.

MR. ESSIG: Could you repeat the

question?

MR. SAFLEY: Sure, sure. We've

identified the set of data that the Agency

has, and I think what I'm trying to ask is

does the Agency intend to use that data to

make a decision on whether or not the

Chicago -- or at least the segment in

which -- the segment of the Chicago Sanitary

Ship Canal in which that data was collected

is or is not an attainment, again, with the

proposed standards, assuming they're passed

as proposed, or would the Agency be looking

at something else?

140

MR. ESSIG: No. The Agency would

probably look at that as long as it is

submitted with the quality assurance program.

MR. SAFLEY: Okay. Well, I was just

trying to understand how that related to

Mr. Twait's response with regard to controls,

and I -- what I heard you say, Mr. Twait, was

that that data was generated during a time

period in which the controls or dischargers

were not controlling for thermal in the same

way they might after the proposed rules are

finalized, because they're operating under

different standards and that that change in

control might affect the agency's evaluation

of the data and decision as to whether

there's attainment; is that correct?

MR. TWAIT: Yes. And I think there's

a difference between measuring attainment in

the past three years versus -- which --

there's a difference between measuring

attainment in the last three years and

determining whether mixing zones are going to

be available in the future. And that would,

based on expected controls that are put into

141

place, and I don't know how -- I don't know

exactly how this rulemaking will come out, of

course, and what timelines will be, but

that's something that the Agency will have to

consider at that time.

MR. SAFLEY: Mr. Essig, did you want

to elaborate?

MR. ESSIG: If the thermal standards

or DO standards are passed, we would only be

looking at data over a three-year period of

when those standards went into effect. We

wouldn't be going back multiple years prior

to that.

MR. SAFLEY: Sure. Susan, please.

MS. FRANZETTI: Thanks, Tom. I'm

trying to explain -- I'm trying to understand

how the Agency is making some of these

projections or estimates regarding whether or

not people will get mixing zones or not based

on the status. So bear with me, and

hopefully by telling you what my issue is,

you'll understand the questions a little

better, the purposes of the questions.

With respect to the testimony

142

you've given today on this topic, are you --

What are you assuming with respect to what

the Midwest Gen plants will be doing with

respect to their thermal contributions to,

and let's start with the Chicago Sanitary and

Ship Canal. Are you assuming, for example,

are you assuming we will need and get a 26

acre mixing zone?

MR. TWAIT: Yes. I would think that

as the rules are proposed that you would --

that those facilities would have to meet

water quality standards outside of --

MS. FRANZETTI: But you are assuming,

for purposes of your analysis, that each

Midwest Gen plant, Fiske, Crawford, Will

County, would get the full 26 acres allowed

under the mixing zone regulation?

MR. TWAIT: As long as that 26 acres

did not conflict with one of the downstream

sources which I --

MS. FRANZETTI: That's actually what

I'm wondering about is -- All right. So part

of the Agency's determination as to what size

mixing zone will be available to a Midwest

143

Generation plant may depend on what a

discharger downstream means? How do you -- I

guess let me ask the general question: How

do you deal with mixing zones when you've got

multiple dischargers and they're all having

to comply basically the same time with a new

standard like the proposed thermal standards?

MR. TWAIT: I've never dealt with this

issue specifically yet, so I'm not sure that

I know the answer. But I think that as long

as the mixing zones do not --

MS. FRANZETTI: Overlap.

MR. TWAIT: -- overlap, then they will

be afforded to each particular district.

MS. FRANZETTI: Okay. But sitting

here today, am I right that the Agency really

hasn't had either the opportunity or even if

the opportunity, not sufficient data to

determine yet whether any of the dischargers

to the Chicago Sanitary and Ship Canal may be

asking for mixing zones that to some extent

or another overlap?

MR. TWAIT: That would be correct.

MS. FRANZETTI: Okay. That's an

144

unknown as we sit here today.

If that occurs, will you

then -- Has there been any discussion within

the Agency as to how you might go about

trying to decide equitably or within, of

course, the bounds of the law, how you will

address a situation of multiple dischargers

all needing a mixing zone, but there not

being enough area in the stream for each of

them to get what they need.

MR. TWAIT: The only instance I can

think of that happening was to a discharger

that had a facility on -- They had -- it was

one facility that had their east plant and

their south plant right next to each other

and they conflicted. And we were able to

work out the amount of mixing that they

needed for copper and gave most of the

allocation to one of the plants. I don't

know how to do it when those aren't --

MS. FRANZETTI: Owned by the same?

MR. TWAIT: Right.

MS. FRANZETTI: And you'll also run

into having to make sure that in resolving

145

the allocation of mixing zone areas, as you,

I think you were starting to refer to

earlier, you also need to make sure that in

the process there's still a zone of passage;

and, again, all of the other mixing zone

regulatory requirements that have to be

satisfied to get the requested mixing zone,

correct?

MR. TWAIT: Yes.

MS. FRANZETTI: So this is a fairly --

This could be a fairly complicated

undertaking for the Agency, right?

MR. TWAIT: Most definitely.

MS. FRANZETTI: And as you sit here

today, you can't really tell any of us, I

guess, for sure we are going to get the full,

maximum I'll call it, 26 acre mixing zone

under these proposed thermal standards?

MR. TWAIT: That would be accurate.

MS. FRANZETTI: Okay. Thanks.

HEARING OFFICER TIPSORD: Mr. Safley?

MR. SAFLEY: Thank you. Moving back

to our Question 51, and I think we've just,

we've talked about the issue of mixing zones.

146

And going to the second bullet point here

under 51. If the Chicago Sanitary and Ship

Canal were designated as not an attainment

for temperature, does the Agency know how

many users of cooling water would being

affected in this circumstance?

MR. TWAIT: No.

MR. SAFLEY: Does the Agency know any

or have any information on what number of any

other dischargers, whether it be cooling

water or some other wastewater source would

be affected by such a designation?

MS. WILLIAMS: You still mean thermal,

though?

MR. SAFLEY: Yes. I mean thermal, but

more broadly than cooling water, does the

Agency know whether there are facilities that

discharge to the Chicago Sanitary and Ship

Canal, a wastewater source other than cooling

water that would be affected by designation

of nonattainment for thermal?

MR. TWAIT: I do not know of any. I

misspoke. I think, I don't know if it was

Citgo or one of those facilities, they

147

mentioned that they have to heat up their

water to go to get ammonia reduction, so that

would be something other than cooling water.

MR. SAFLEY: And I'll skip the next

two bullet points. The fifth bullet point,

when we spoke in previous hearings, my

understanding that the Agency had not

considered cost of construction installation,

operation, and maintenance of technology to

address thermal issues at any of the

facilities that discharge to Chicago Sanitary

and Ship Canal other than, I think earlier,

Mr. Twait, you mentioned that there was some

information given by MWRD and Midwest

Generation. Is that accurate that the Agency

has not considered those kind of costs with

regard to any other facilities on the Chicago

Sanitary and Ship Canal?

MR. TWAIT: We have not considered

that specifically for the Chicago Sanitary

and Ship Canal. However, based upon

facilities putting in cooling towers

throughout the state, we think it's

economically reasonable and technically

148

feasible.

MR. SAFLEY: Moving on to our next

bullet point. Has the Agency considered how

much energy these technologies; that is, such

as cooling towers, consume?

MR. TWAIT: No.

MR. SAFLEY: So would it be -- moving

on to the next question, would it be accurate

to state that the Agency does not know how

much energy would be used to operate those

technologies?

MR. TWAIT: No.

MR. SAFLEY: And then our last bullet

point, how much CO2 would be emitted due to

increased energy consumption due to the

operation of cooling towers?

MR. TWAIT: No, I do not know that.

MR. SAFLEY: The follow-up question to

that, has the agency considered whether water

loss might occur due to evaporation through

cooling towers, and how that might affect

water quantity needs for the region in

general or downstream users waterway?

MR. TWAIT: The Agency knows that

149

there's going to be water loss through

evaporation; but, no, we have not considered

how that will affect downstream users.

MR. SAFLEY: Okay. Thank you. Our

Questions 52, 53, and 54 were answered

previously. So moving on to our Roman

Numeral V, questions relating to cooling

towers.

And our Question 55: The CAWS

UAA notes that the water in the Chicago

Sanitary and Ship Canal is composed mainly of

effluent from the Metropolitan Water

Reclamation District's Stickney plant and

upstream flow from the Chicago River System.

This portion of the Chicago Sanitary and Ship

Canal is also subject to human manipulation

that impacts flow, CSO events, and other

artificial effects that can impart odorous

properties to the water. It is reasonable to

be concerned that use of water from the

Chicago Sanitary and Ship Canal and cooling

tower may reduce odors. If the use of

Chicago Sanitary and Ship Canal water in a

cooling tower releases odors, how will the

150

Agency address any odor complaints that might

result?

MR. SULSKI: Well, I hadn't considered

this because we didn't receive any data on

it, on odors associated with cooling towers

or even cascading or aerating waterway water.

We have SEPA stations all along the Cal-Sag

Channel where there are CSOs, there's Calumet

wastewater treatment plants. And I cannot

recall an odor complaint associated with

those facilities. The only odors that I'm

aware of are from, directly from sewers, not

cascading waters. The other odors I'm aware

of occur periodically during the hot season

in stagnant flow reaches including the south

fork and the upper north shore channel where

you end up with an anaerobic condition and

bulking sediments and sulfite odors. But in

the main stem of the waterways including the

Sanitary and Ship Canal, I can't recall in 25

years ever getting an odor complaint.

MR. SAFLEY: And, Mr. Sulski, just to

follow-up on that, when you refer to the

Cal-Sag Channel, is it correct that that does

151

not have the same quantity of effluent from

an MWRD discharge that the Chicago Sanitary

and Ship Canal would have?

MR. SULSKI: Amount? Quantity?

MR. SAFLEY: Yes. Well, or

percentage. You can address it either way.

Is that -- Would you consider the Cal-Sag

Channel to be -- as effluent-dominated as the

Chicago Sanitary and Ship Canal --

MR. SULSKI: Yes.

MR. SAFLEY: But am I correct that

when you were discussing odor complaints from

the water body itself, and what I meant to

address in this question was odor complaints

as a result of the use of cooling towers

which is drawing water from those water

bodies. So I just want to make sure you

understood the difference with my question.

MR. SULSKI: Right. Well, a SEPA

station is a side stream elevated pool

aeration station. They draw a portion of the

water out of the river, they cascade it, just

like cooling would, you know, do it. And

then they put it back into the waterway. So

152

it is like a cooling system.

MR. SAFLEY: And I have to admit, I'm

not familiar with the SIPA station, so --

MR. SULSKI: It draws water out of the

waterway, cascades it, puts it back in the

waterway.

MR. SAFLEY: But is it heating or is

it -- Do you have the same heat issues that

you would and evaporation issues because of

heat that you would with the cooling tower?

I mean is the SIPA station designed like a

cooling tower specifically to release heat

from the water, and would that affect the

potential for odor complaints from a SIPA

station as opposed to cooling tower?

MR. TWAIT: The SIPA stations would

not have the same temperature.

MS. WILHITE: Maybe I can augment that

answer just a little bit.

MR. SAFLEY: Sure.

MS. WILHITE: I think that the answer

to the question is that we would address

odors from this type of facility the way the

Agency addresses odors from other types of

153

facilities. You look at what -- you do an

investigation, you find out what's

potentially causing the problem, you work

with the operator to see if they're doing

whatever is possible to minimize the odors;

and our understanding is there are many

things you can do to minimize odors from a

cooling tower.

MR. SAFLEY: Thank you, Miss Wilhite.

That leads into my next questions.

HEARING OFFICER TIPSORD: Excuse me

before you go. Mr. Ettinger?

MR. ETTINGER: I just wanted to ask

whether there is a cooling tower on some of

the Joliet units in the Upper Dresden Pool

and I was just going to ask whether you have

any odor complaints regard -- relating to

those cooling towers at the Midwest

Generating in Joliet.

MS. FRANZETTI: Marsha, I'd like to

take that. No.

MS. WILHITE: And, Albert, I'm not

certain because kind of the --

MR. ETTINGER: I like Franzetti's

154

answer.

MS. FRANZETTI: I thought you would.

I thought it was something I can agree on.

MR. SULSKI: I'm also aware that Corn

Products has some cooling towers.

MS. FRANZETTI: All kidding aside,

Albert, the one thing you have to consider is

those, and I think this is different from

what Mr. Safley is asking, we're pretty far

down from an effluent discharge at Upper

Dresden Pool. So I'm not sure it's the same

thing right next to Stickney or something.

MR. ETTINGER: I'm sure you're minding

your towers much better, so.

MR. SAFLEY: You know --

MR. SULSKI: I'm aware that Corn

Products has cooling towers as well because I

visited the facility.

MR. SAFLEY: But they don't use water

from the Chicago Sanitary and Ship Canal for

that in those cooling towers. And I want to

make sure you understand. These are serious

questions, and I'm not real familiar with

Joliet, the Joliet facility for Midwest Gen.

155

I don't know if it's in the same kind of

community and residential area that Corn

Products is in. And Corn Products is

particularly concerned with, you know,

relations with its neighbors and residential

areas. So that's the reason for these

questions. This isn't just trying to make

something up here.

MR. SULSKI: I understand. I have to

go back to my initial answer. I've never

heard of -- I've never received a complaint.

We'd have to check with our air people.

They're the ones that usually get those

complaints. The only thing I can tell you is

the only odors I know that are associated

with the Sanitary and Ship Canal are the

waterways in general, not even the Sanitary

and Ship Canal, are those stagnant portions

of the waterway that end up going anaerobe,

and that is the south fork and the upper

north shore channel, none outside of that.

MR. SAFLEY: Okay. Thank you. Moving

to our first bullet point. And,

Miss Wilhite, again, I think you were leading

156

into these bullet points here. The question

as written is if such complaints were to

occur, would the discharger be able to

continue to use its cooling tower?

MS. WILHITE: Yes.

MR. SAFLEY: But, Miss Wilhite, you

mentioned that the complaints of odor might

result in an Agency investigation and

consultation with the discharger about the

use of the cooling towers; is that correct?

MS. WILHITE: Yes.

MR. SAFLEY: And you mentioned also

steps that a discharger operating such a

cooling tower might be able to take to

address odor issues. And I guess, you know,

that moves on to our next bullet point. I'd

like to ask you to elaborate a little bit on

what steps the Agency is aware of that could

be undertaken.

MS. WILHITE: And I'm prefacing my

comments by saying that we consulted with the

Bureau of Air for these answers, since this

is starting to get out of our area of routine

understanding. And so you'll forgive me if

157

you are provided with a disappointing level

of follow-up information.

MR. SAFLEY: That's fine.

MS. WILHITE: But our understanding is

that there are pretty standard treatment

methodologies for reducing the cause of odors

which tend to be biological.

MR. SAFLEY: And there was some

discussion earlier about biofouling of

cooling towers and the potential need for

treatment of chemicals that would be used to

address that biofouling. Does the Agency

have any information on whether or not those,

the kind of chemical treatments that you're

talking about, would result in the need for

additional treatment of the wastewater

discharge to account for those kind of

chemicals that were used to address odor

issues and maybe biofouling and odor issues

would have the same kind of treatment. I

don't know.

MR. TWAIT: Our group will look at

what biosites that you're using. We have a

person that will look at the quantity and

158

what is in the make-up of the product that

you're using. If your use would violate the

water quality standard, then we'll let you

know that and point you in a direction of

looking for something different. And, you

know, if you use chlorine, you might be asked

to dechlorinate before discharge.

MS. DIERS: Scott, when you say our

group, who are you referring to since we've

been talking about air and water?

MR. TWAIT: When I said my group, I

meant the water quality section of the Bureau

of Water.

MS. FRANZETTI: Tom, if I may.

MR. SAFLEY: Sure. Oh, please. Thank

you.

MS. FRANZETTI: Mr. Twait, it sounded

like from your answer that to the extent that

there may be concerns about using

effluent-dominated water that's not been

subject to disinfection like there is in the

Chicago Sanitary and Ship Canal, it may be

necessary for the proper operation and

cooling towers to first chlorinate and then

159

dechlorinate that water before you run it up

through a cooling tower just to address

concerns, may not be odorous, but I take it

there could be some emission of bacteria and

pathogens that are in that water because of

the lack of disinfection that may need to be

addressed with the cooling tower's operation

and design.

MR. TWAIT: I don't know that -- I

mean you're right. That could be an issue,

but I don't know of that as being an issue.

MS. FRANZETTI: Okay.

MR. SAFLEY: Moving on to our

Question 56. Since odors may result from

VOCs, that's volatile organic compounds or

HAPS, hazardous air pollutants, how will

emissions from a cooling tower be handled?

And I know, Miss Wilhite, you said that you

consulted with the Bureau of Air to some

extent.

MS. WILHITE: And I'm going to closely

consult my notes here. Basically they would,

those types of emissions, the volatile

organic chemicals or HAPs, whichever, would

160

have to be permitted because they're going to

be potentially stripped from the water during

the cooling process. They'll have to be

quantified in a manner that provides

reasonable data on the magnitude of those

emissions just like any other type of

situation that's an air source. So what else

can I tell you?

MR. SAFLEY: No. I think that answers

our Question 56. Question 57, and, again,

I -- I don't want to waste time if the Agency

has not had the kind of consultation that

would be necessary with the Bureau of Air to

respond to this question. But if you have,

I'll go ahead and ask it, because we

discussed this a little bit last time, and

the Agency's answer was that the Agency did

not know about particular emissions from

cooling towers but would see what it could

find out. And have you had that

consultation?

MS. WILHITE: Yes.

MR. SAFLEY: Then I'll go ahead. I

don't want to waste time.

161

Then going on with this question:

Since the region, the Chicago area region is

nonattainment for PM2.5, particulate matter

2.5, will the Agency permit the construction

of cooling towers which increase emissions of

PM 2.5?

MS. WILHITE: You're on sub A?

MR. SAFLEY: Yeah, under Question 57.

MS. WILHITE: Yeah. I think

potentially. The answer is potentially given

what the analysis shows.

MR. SAFLEY: So the Bureau of Air

didn't -- was not able to provide you any

kind of blanket yes or no?

MS. WILHITE: They didn't address that

directly, but they've got very detailed

answers for the rest of the stuff.

MR. SAFLEY: That's fine. Then moving

on to the first bullet point. How long will

this permitting take the Agency if it

requires a state construction permit?

MS. WILHITE: Bureau of Air will issue

state construction permits within the

statutory deadlines if the applications show

162

compliance with applicable air pollution

control requirements. Permitting will be

expedited as possible as the cooling towers

are needed to comply with water quality

standards. And the estimate I have here is

90 days or 180 days if you have post

comments.

MR. SAFLEY: Thank you. The next

bullet point: If a cooling tower is subject

to PSD, or prevention of significant

deterioration, how long will permitting take?

MS. WILHITE: Generally they say given

the complexity of PSD, it takes about nine

months. However, the respondents think it's

unlikely that PSD permitting will need to be

triggered because plants with large thermal

discharges have emissions of particulate at

present such that decreases in emissions

could be used to net out a PSD review;

notably, Corn Products, for example,

installed a new coal-fire boiler with a

decrease in particulate matter emissions of

several hundred tons due to the shut-down of

existing boilers. This decrease should be

163

more than adequate to net out any cooling

tower required by Corn Products to meet

temperature standards.

Midwest Generation, for another

example, is committed to shutting down two

units at its Will County station which should

also provide emission decreases that are

sufficient for netting out and cooling towers

from the remaining two units. Bet you can't

guess who wrote the answers?

MR. SAFLEY: I can guess. I'll

skip -- Well, unless you tell me that Bureau

of Air gave you information on how long the

construction of cooling towers is likely to

take, I'll skip that next question.

MS. WILHITE: I do have an answer for

you.

MR. SAFLEY: Sure. Go ahead.

MS. WILHITE: Construction of a

cooling tower at a power plant major

industrial facility is a significant

undertaking. At a minimum would expect the

planning, design, procurement and

construction to take a minimum of 12 to 18

164

months.

MR. SAFLEY: Next bullet point: If

the permit is appealed, how will the Agency

address the permitee's inability to comply

with the Agency's proposed thermal standard

here during the pendency of the appeal

process?

MS. WILHITE: I don't believe that

Bureau of Water has had that experience

previously, but my -- We would work any

discretion available to us to work through

that process.

MR. ANDES: Can I --

MR. SAFLEY: Of course.

MR. ANDES: Are you talking about

enforcement discretion?

MS. WILHITE: For example, that might

be a possibility.

MR. ANDES: What would be the other

possibility?

MS. WILHITE: I'm not certain, Fred.

Because I've not experienced this before, I'm

not certain what discretion, but whatever

discretion we have available to us.

165

Enforcement would be an important example.

MR. ETTINGER: Appealed by who? By

the permit applicant or by someone else? I

don't quite understand.

MS. WILHITE: Are you directing that

to me?

MR. ETTINGER: I guess I'm directing

it to Safley. Who's he asking it about?

Appeal by who?

MR. SAFLEY: Appeal --

AUDIENCE MEMBER: By folks who

customarily appeal permits.

MR. ETTINGER: I don't know that

there's a big custom going on there. If the

permit is granted, generally we have to move

for stay, and you can go ahead and discharge

under your permit.

MS. WILLIAMS: You're talking about a

water appeal --

MR. ETTINGER: If it's a water permit.

MS. WILLIAMS: They're asking about

the air.

MR. SAFLEY: I was asking about the

air permit.

166

Moving on to our next bullet

point: What is the total PM 2.5 that would

be emitted from cooling towers used to comply

with the proposed rule?

MS. WILHITE: An exact estimate is

difficult given the absence of relevant data

for design and operation of the cooling

towers, but the types of factors would be how

much cooling is needed, for example, how many

million gallons per day, what the change in

temperature, et cetera, what is the TDS

content of the incoming cooling water, what

is the TDS content that would be allowed in

discharge? What is the required efficiency

of the different -- the drift eliminators in

the new cooling tower. So without those data

you would imagine that the PM emissions in

the cooling tower at the four power plants of

Corn Products will be as little as five tons

per year or as much as 50 to 100 tons per

year or more.

MR. SAFLEY: We are comfortable that

we've addressed the last two bullet points

there.

167

Moving on to our Question 58,

the operation of cooling towers consumes

large amounts of energy. Has the Agency

considered the total energy that will be used

by dischargers to operate cooling towers?

MS. WILLIAMS: Can you -- I mean I

guess I'm not aware of that presumption in

58, operation of cooling -- What is the large

amount of energy?

MR. SAFLEY: Well --

MS. WILLIAMS: We've already testified

we don't know.

MR. SAFLEY: Okay. Well, and, again,

I didn't know to what extent the consultation

with the Bureau of Air might have updated

that. If the Agency's answer is it doesn't

know how much energy would be used by the

cooling towers, that's fine. But I just

wanted to make sure there hadn't been a

change.

MR. TWAIT: That would be the answer.

MR. SAFLEY: Okay. We'll skip 59 in

light of that.

Our Question 60: Cooling

168

towers must be cleaned from time to time.

What is the nature of the sediment that will

be present in cooling towers?

MS. WILHITE: I'll take that one,

because it turns out I have friends in the

Bureau of Land as well. Waste management is

handled through the Bureau of Land at our

agency.

HEARING OFFICER TIPSORD: You need to

speak up.

MS. WILHITE: I'm sorry. I fade away.

I said waste management is handled by the

Bureau of Land in our agency. But generally

what's in the sediment is going to be

dependent upon what's in the intake water,

and any kind of treatment that's provided as

we've discussed for antifouling of the

cooling tower.

MR. SAFLEY: Does the Agency have any

information, given its knowledge of the water

that's present in the Chicago Sanitary and

Ship Canal and its knowledge of generally

what kind of treatment might take place, what

you might expect to see in the sediment even

169

if you can't exactly quantify it?

MS. WILHITE: We haven't done that

analysis.

MR. SAFLEY: That may answer the next

couple of questions, but I'll go ahead and

ask. Will the sediment be considered a

hazardous waste?

MS. WILHITE: Well, the first step,

according to my source, is that you do a

solid waste determination, and these are site

specific as part of the process to evaluate a

waste at a particular site. The generator

would be required to determine if the

material was a solid waste, and then if a

solid waste, determine if the solid waste was

hazardous by definition, and does the

hazardous -- does the waste exhibit

characteristic of a hazardous waste.

The comment we got from the Bureau

of Land was that they would not expect the

sediment to be hazardous, but it is the

generator's responsibility to determine what

they have. And each site must be evaluated

based on the specifics and their selection.

170

MR. SAFLEY: Thank you. The next

question, would the sediment be concerned a

special waste?

MS. WILHITE: Sediment from a cooling

tower would generally be considered a special

waste. If the waste could qualify as a

nonspecial waste under the self-certification

process, then it could be considered garbage

and disposed of in the dumpster with other

garbage.

MR. SAFLEY: Thank you. The next

question, what is the cost to a discharger in

terms of complying with the hazardous waste

or a special waste regulation in order to

manage cooling tower sediment.

MS. WILHITE: If the material was a

nonhazardous special waste, it could be

disposed of as a municipal solid waste

landfill that was permitted to take special

waste. It could also potentially be

self-certified a nonspecial waste and then

disposed of just as any other garbage. The

cost would be similar to many other garbage

in that case except there would be a

171

requirement to manifest the waste in the

landfill unless there was a

self-certification indicating the waste was

nonspecial. If, for some reason, the

material turned out to be hazardous, the

facility would be subject to all the RCRA

regulations. I can't provide any cost for

management or disposal, but the cost would be

much higher than if it were nonspecial waste.

The treatment, storage, transportation,

manifesting, and disposal in a hazardous

waste landfill would all be regulated. And

depending upon how the waste was handled at

the site, the facility may also be required

to obtain a RCRA permit.

MR. SAFLEY: In light of that

response, Miss Wilhite, would it be correct

to state that the Agency has not undergone

any kind of calculation of the quantity of --

cooling tower sediment specs would be

generated as a result of compliance with the

proposed rules and then the cost, the

corresponding costs to deal with --

MS. WILHITE: We have not done that

172

analysis.

MR. SAFLEY: Thank you. The last

question here, did the Agency consider the

impact of the proposed rules in terms of the

creation of additional hazardous waste or

special waste due to the construction and

operation of the cooling towers?

MS. WILHITE: No.

MR. SAFLEY: Thank you. We're just

trying to look through these and see if

things have already been answered.

Question No. 61 begins with

some question about chemicals that might be

necessary for the operation of the cooling

tower, and we've talked about that to some

extent already. To try to shorten this,

would the addition of chemicals to a facility

wastewater that was necessary as a result of

the operation of the cooling tower be an

issue that had to be addressed in the

facilities' NPDES permit assuming it was a

TDS discharger?

MR. TWAIT: We would do an

anti-degradation for the additional

173

chemicals.

MR. SAFLEY: Okay. Can the Agency

provide any information on -- any information

on how long it would take to conduct that

analysis, and, if necessary, obtain a revised

NPDES permit from the Agency?

MR. TWAIT: I'm reluctant to give you

an idea of how long it would take, but the

anti-degradation portion of that, usually

those are pretty simple. And so then it just

basically will depend upon how busy permits

is and how high up on its priority list it

is. I won't even hazard a guess.

MR. SAFLEY: Moving on to our

Question No. 62, how will the increased

concentration of existing pollutants in a

discharge as a result of the cooling tower

process be governed under an NPDES permit?

MR. TWAIT: I believe this would go

back to background concentrations under

304.103, where if the parameter you're taking

out of the stream is concentrated due to

evaporation and then discharge, there would

not be additional regulation. The discharger

174

may have to measure and report the loading

coming in and going out, but treatment

wouldn't be necessary if it was just truly a

background concentration.

MR. SAFLEY: We'll move on to our

Question 64. New sewer connections, and this

should have said to MWRD, require engineering

and District and Agency approval prior to and

upon completion. Has the timing of such a

process been considered by the Agency in

conjunction with this rulemaking?

MR. SULSKI: These are state permit

matters, and I don't know how long it will

take to design and construct. But for

getting the permit, for state permits we have

a statutory deadline, you know, three months.

So assuming that the project is permittable,

it's a fairly relatively quick turn-around.

MR. SAFLEY: Does the Agency have any

information on the cost to construct,

operate, or maintain such sewer connections?

MS. WILLIAMS: When you say such sewer

connections, do you mean any sewer

connections between the district or --

175

MR. SAFLEY: To MWRD that might be

necessary as a result of -- I guess I

should -- the installation of equipment to

comply with the Agency's proposed rules.

MR. SULSKI: I'm sorry? The door

slammed.

MR. SAFLEY: With the Agency's

proposed rules. For example, if the

facility, and I'm not sure what piece of

equipment to mention, but facility needs a

new sewer connection to MWRD because of an

increase in wastewater flow or a change in

wastewater flow resulting from steps it has

taken to comply with the agency's proposed

standards. Has the Agency thought at all

about the cost to construct, operate, or

maintain those kind of sewer connections?

MR. SULSKI: I didn't know that it was

a very significant factor to really consider.

MR. SAFLEY: So there wouldn't be --

The last question here, what is the impact on

the District of receiving additional flow

return from the Chicago Sanitary and Ship

Canal. Has the Agency considered that issue?

176

MR. TWAIT: Could I ask what quantity

of flow and -- what flow are we talking

about? Is this related to Question No. 63?

MR. SAFLEY: Well, and I think that it

is, and maybe I should not have skipped over

that. If you've got a situation where you've

got the cooling tower blow down and you can't

discharge it back into Chicago Sanitary and

Ship Canal, is MWRD able to accept that? And

that leads into these questions here. Has

the Agency considered the impact of that kind

of discharge to MWRD in the rulemaking?

MR. SULSKI: Well, the district

accepts indirect discharges of industrial

waste, but I don't know what flow, how much,

how often you would have to blow it down.

And I understand that Corn Products has a

very large flow already to the District.

MR. SAFLEY: It does. Okay. That's

fine. Thank you. I think that adequately

addresses.

Moving on to our Question No. 65.

Has the Agency evaluated unintended

consequences of this proposal? For example,

177

has the Agency considered the potential

increased use of Lake Michigan water to cool

a discharge as a measure of compliance?

MS. WILLIAMS: I think I have to say

that we couldn't possibly have evaluated any

unintended consequences --

MR. SAFLEY: That's fair. Maybe I

should have written the question a little

better. That's true. Well, what someone

might consider an unintended consequence.

Skip my first question. That's a fair point.

Moving on to the second question,

has the Agency considered the potential

increased use of Lake Michigan water to cool

a discharger as a measure of compliance?

MR. SULSKI: I have to read it again.

I don't quite understand your question.

MR. SAFLEY: I think what the question

is going for, is has the Agency considered

that a discharger might utilize other sources

of water, be it Lake Michigan or the next

question here use of groundwater, as a result

of this rule, and does that result in

impacts -- has the Agency taken into account

178

any impacts that might result from that use

of another source of water for cooling

purposes?

MS. WILLIAMS: Cooling the stream or

cooling your discharge?

MR. SAFLEY: I think either --

MR. SULSKI: Impacts on what? Just

any impacts or?

MR. SAFLEY: Well, water quantity

issues would be an example. Obviously water

quantity is a big issue in the region, the

Chicago region right now. If a discharger

had a well and decided to start drawing water

from that well as opposed to taking water

from the Chicago Sanitary and Ship Canal or

another water body, has the Agency considered

those kind of things occurring or has that

just been --

MR. SULSKI: You mean the cost to you

to do that or --

MR. SAFLEY: No. I mean the

environmental cost, the impacts of

potentially shifting someone to another

source of water.

179

MR. TWAIT: I think the answer to both

of those questions is no, the Agency didn't

consider it; however, I'll also mention that

increased use of Lake Michigan water probably

will not happen because of current

restrictions on the amount of Lake Michigan

water that Chicago can use and divert.

MR. SAFLEY: Our Question No. 66 --

Thank you, Mr. Twait. Question No. 66 was

answered in response to a previous question.

The last Question 67, the Agency

recognizes that the existing history of

sediment pollution in the CAWS and Lower Des

Plaines River will make this; that is,

Section 302.403, unnatural sludge standard

nearly impossible to attain and that's in the

statement of reasons at Page 55. Has the

Agency considered whether the construction of

cooling towers, which may be necessary to

comply with the proposed standards, will

aggravate the unnatural sludge problem in the

CAWS and the Lower Des Plaines River?

MS. WILLIAMS: So does this question

refer to the actual process of building them?

180

MR. SAFLEY: No. The use -- the use

of cooling towers.

MS. WILLIAMS: The use of cooling

towers.

MR. SULSKI: Are you saying that

you're going to put out more sludge through

cooling towers?

MR. SAFLEY: I'm not saying Corn

Products is. I'm asking has the Agency

considered whether or not the use of cooling

towers may result in the discharge of more

sludge and aggravate the sludge problems in

the waterways.

MR. SULSKI: I don't --

MS. WILLIAMS: Can you explain how?

MR. SAFLEY: I'm not engineer enough

to be able to do that. If the answer is --

MR. SULSKI: I don't know of any

aggravation that would be caused. You know,

if there is some, I'd like to hear about it.

MR. SAFLEY: That's fine. That

concludes our prefiled questions.

HEARING OFFICER TIPSORD: Let's go off

the record for just a second.

181

(Off the record.)

(Short break taken.)

HEARING OFFICER TIPSORD: ExxonMobil.

I think we'll start with you, if that's okay.

MR. ANDES: Thank you. Fred Andes,

Metropolitan Water Reclamation District. I'm

going to focus on questions that we skipped

over previously because they were specific

questions and some follow-ups on those.

Before I do, let me ask two questions that

follow-up directly on issues that were raised

earlier today. One was on DO. Sounds like

the cost to meet the DO standards were looked

at, correct me if I'm wrong, on the north

branch and on the south fork of the south

branch, not on the Chicago Sanitary and Ship

Canal or the Cal-Sag Channel. Am I right?

MR. SULSKI: Correct.

MR. ANDES: And is there a reason for

that in terms of now looking at what would

need to be done to attain on those other

water bodies is the DO?

MR. SULSKI: In my recollection of the

data, the Sanitary and Ship Canal, except for

182

perhaps around where the south fork empties

into it and maybe a little bit downstream

would not be an issue if we took care of the

DO problems in the south fork and then

through the south branch and the north branch

and the north shore channel areas. The

modeling answer to that was still outstanding

because of an integrated approach between

supplemental aeration, flow augmentation that

needed to be completed through modeling.

MR. ANDES: Okay. Based on the data

that you have, let's stay with the Sanitary

and Ship Canal for a minute. Has that been

attaining the DO standard on -- would that --

Does the data that you have show that it

would attain the proposed DO standards on a

consistent basis?

MR. SMOGOR: There was no direct

comparison to the standard that was proposed,

because I think the analysis wasprior to

that.

MR. SULSKI: The analysis was against

general use standards, and there was an

indication that there would be some

183

violations of general use standards. That's

what the CAWS contractor did.

MR. ANDES: So they didn't compare to

the new proposed standards?

MR. SULSKI: Correct.

MR. ANDES: And that would be the same

for the Cal-Sag Channel?

MR. SULSKI: Correct. They did two

comparisons: They did a comparison against

secondary contact standards and general use

standards.

MS. WILLIAMS: And I'd like to clarify

also when they do -- when they say general

use, I am quite sure, and correct me, Roy, if

I'm wrong, that they compared not to the

general use standard that has just been

adopted by the board, but the one that was in

effect at that time, right?

MR. SMOGOR: Correct.

MR. ANDES: Which is different than

what's being proposed to apply to those water

bodies now.

MS. WILLIAMS: Right. Which one is

different? General use -- the old general

184

use. They both are different, but.

MR. ANDES: And these are more

restrictive standards.

MR. SMOGOR: Which are more

restrictive?

MR. ANDES: Stop for a minute. The

key point is the Agency has not assessed what

the cost would be to comply on Cal-Sag

Channel and the Sanitary Ship Canal with the

new proposed standards of DO.

MR. SULSKI: Correct.

MR. ANDES: In terms of temperature --

HEARING OFFICER TIPSORD: Mr. Harley

has a follow-up.

MR. HARLEY: Keith Harley, Chicago

Legal Clinic. Mr. Andes asked you about DO

conditions in the Cal-Sag Channel. Could you

comment on DO conditions, if you know, in the

Calumet River, the Little Calumet River, and

the Grand Calumet River.

MR. SULSKI: I have to look in the

CAWS report. What the contractor did is --

that would be CDM. What CDM did was actually

a tiered evaluation. They compared or they

185

looked at how many -- what the percent

compliance would be with meeting a six

milligram per liter level, a five milligram

per liter level, and a three milligram per

liter level. And on Page 4-87 of Attachment

B, they summarized that data and indicate in

that summary that the Calumet River and Lake

Calumet reaches would most of the time meet

the six milligram per liter level. They

indicate that as you get into the little

Calumet system, approximately half the times

you would need a six milligram per liter,

about a quarter to a third of the time you

couldn't meet a five milligram per liter

level, about a fifth of the time you couldn't

meet a four milligram per liter level. I'm

sorry. That's the Grand Calumet River. The

Little Calumet River starting at six going

down to five going down to four. It is

around 10 percent you couldn't meet the 6,

around 5 percent of the time you couldn't

meet the 5 milligram per liter, and around

1 percent of the time you couldn't meet a

four milligram per liter level. And then,

186

you know, it's shown in the table. If you

want me to go on, I can --

MR. HARLEY: No, no. That's fine.

Thank you.

MR. ANDES: I guess what I'm -- so I

guess what I'm trying to understand is the

logic in terms of is there a sense of, okay,

it wouldn't meet -- a certain water body

wouldn't meet standards a certain percent of

the time unless we do "X," we're going to do

"X," it's going to cost "X" amount of money,

and it's going to lead to attainment 100

percent of the time, right?

MS. WILLIAMS: Is that a question? I

didn't hear the question in that.

MR. ANDES: Where is that analysis or

to what extent is that analysis there?

MR. SULSKI: There were two analyses

done by the District and presented to the SAC

Group. One of the analysis was what can we

get with flow augmentation, and that wasn't

sufficient in itself. The other analysis is

what can we get with stream aeration, that

wasn't sufficient in itself. We all

187

understood early on that you needed a

combination, you needed to keep stagnant

areas moving in addition to air. So at that

point the SAC meetings were over and the

district was prepared to do more modeling to

look at an integrated approach. Although

they did provide cost figures for each of the

individual two approaches that I talked to

you, I haven't seen any cost figures on the

integrated approach.

MR. ANDES: Right. I'm not really

asking what the District is doing. The

question is what is in the Agency records

document that certain measures are going to

lead to attainment of the standards

throughout the system 100 percent of the

time, and it sounds like that's not there.

That's there as to certain areas between

north branch and south, over to the south

branch, but not as to other parts of the

system.

MR. SULSKI: And we have not evaluated

compliance against the proposed standards.

So that would have to be a whole evaluation

188

which Howard would get involved in.

MR. ANDES: Okay. Let me shift my

other question. We may come back to that

later.

On temperature, and this

really takes off from questions Mr. Safley

was raising about the District's data. And I

think in using the District's effluent data

to develop, to use his background, to develop

the temperature standards, you used averages.

The question is whether when looking at the

individual data points, and I know those are

available on the District's website, whether

those show that actually even Stickney, would

even Stickney comply on a consistent basis

with the temperature standards? So it sounds

like the Agency has not had the opportunity

to assess that aspect.

MR. TWAIT: We have not.

MR. ANDES: Let me go back to specific

questions that we had not asked before, and I

have you sort of grouped by issue, but I'll

tell you where they are in our original

questions. And I thought we would focus

189

first on really habitat and

biological-related questions, then we have

specific questions on DO and on bacteria as

well.

In terms of habitat, the first set

of questions we had that we skipped over were

on Page A of our original prefiled questions,

and they dealt with Attachment R.

MS. WILLIAMS: So can I ask just a

clarifying question procedurally here? Are

you saying that there are other questions on

Pages 1-7 that we may go back to based on the

subject matter?

MR. ANDES: I believe not.

MS. WILLIAMS: Or you believe they've

been asked and answered.

MR. ANDES: I believe the ones on 8

and 9 are the first ones that you skipped

over and are now coming back to. So I think

we're done with Pages 1-7.

MS. WILLIAMS: Great.

MR. ANDES: So the first question

regarding Attachment R concerns Page 2 of the

report which indicated that current cover

190

type scores are listed in table 3 and were

collected as part of a plan revision to QHEI.

First question is was the

revised QHEI metric used to evaluate the CAWS

or the tradition at QHEI method?

MR. ESSIG: Traditional.

HEARING OFFICER TIPSORD: Excuse me.

Off the record for just one second.

(Off the record.)

HEARING OFFICER TIPSORD: Back on the

record.

MR. ANDES: Is it your understanding

that the revised method has replaced the

original QHEI in this time, at this time?

MR. ESSIG: When you're referring to

the revised QHEI, you're talking about the

cover type scores? Is that what you're

referring to?

MR. ANDES: That was part of the

planned revision to the QHEI process.

MR. ESSIG: No. The cover type scores

were not -- the revised cover type scores

were not used in the QHEI.

MR. ANDES: Okay. What's your

191

understanding of the status of the revisions

to the QHEI? Has that been peer reviewed?

Has that been used in the region? Or are

people still using the traditional method?

MR. ESSIG: I'm sorry. But when

you're referring to the revised method,

which -- what are you referring to?

MR. ANDES: Well, in the report, it

had mentioned a planned revision to the QHEI

which included consideration of cover type

scores.

MR. ESSIG: Okay. Right. The cover

type scores, they've got them on the sheet

but they're not being used in the actual

calculation of QHEI. That revision has not

taken place yet as far as cover scores.

MS. WILLIAMS: And when you say the

report, just for the record, is that

Attachment R then that we're talking about?

That's the report?

MR. ANDES: Yes. Yes.

Next question, on Page 35

of Appendix R there's a large difference in

the QHEI scores reported in the second column

192

of Table 2 and the second column of Table 3

for the Cal-Sag Channel and Route 83;

similarly there are different scores listed

for what I think is Sheridan Road and

Dempster Street on the North Shore Channel.

So the first question was is there an error

here? What is the reason for the discrepancy

between the scores? They're fairly

significant differences.

MR. ESSIG: Yes. These were errors

and they've been corrected. The correct

store is 83 on the Cal-Sag Channel. It was

54. The correct score for Cal-Sag at Cicero

was 47.5, and then at Sheridan it's 42 and at

Dempster it's 37.5.

MR. ANDES: And what was the error?

Do you know?

MR. ESSIG: Mr. Rankin did not tell me

what it was, although it looked to me like

they switched those scores between the

Cal-Sag and the North Shore Channel for that

one table.

MR. ANDES: Oh, so the Dempster Street

37.5 was put in as Cicero and Sheridan was

193

put in as Route 83? Is that --

MR. ESSIG: I think that might have

been what happened on that one table.

MR. ANDES: Okay. And in the numbers

that he used in evaluating were the correct

numbers? Is that your understanding?

MR. ESSIG: Yes, it is.

MR. ANDES: The ones in --

MR. ESSIG: The correct values.

MR. ANDES: -- Table 3. Okay. And

were then those -- were those scores then

used in the UAA report?

MR. ESSIG: I'd have to check. For

the CAWS UAA report on Page 4-104, Table

4-63, incorrect scores are indicated for the

QHEI at Cal-Sag Channel at Cicero and also at

Route 83, and then we'll have to look up the

North Shore Channel. For the North Shore

Channel, it's Page 4-43, and the wrong scores

are indicated there also.

MR. ANDES: Has the Agency gone back

to the raw data to verify which scores are

right?

MR. ESSIG: No, I have not.

194

MR. ANDES: Let's move on to the next

question. On Page 6, Paragraph 2 of

Appendix R there's a discussion of habitat

conditions that are not feasible to restore

such as ongoing activities to maintain the

water in an altered state, EG channel

maintenance for ag drainage, flood control.

This condition would apply to all of the

CAWS, the exception of the Calumet River

upstream of the O'Brien Loch and Dam to Lake

Michigan since its flow is controlled by the

Metropolitan Water Reclamation District.

Does IEPA agree with Mr. Rankin's statement

that habitat cannot be feasibly restored if

the waterway is in a quote, altered state,

unquote for flood control?

MR. ESSIG: Actually, I think what his

statement that you read was really more of a

general statement in relation to assessing

habitat conditions in a nonspecific waterway.

Even on the page prior to that quote he's

talking about in generalities, I think, not

specifically to the CAWS.

MR. ANDES: But do you agree or

195

disagree with his general statement?

MR. ESSIG: Let me just read the

portion of Mr. Rankin's statement. The

information collected may indicate that

habitat is relative to reference conditions.

In the habitat conditions are not feasible

restorable in the short-term due to factors

such as examples of these things. But he

later indicates, I think, that he's not

specifically mentioning these waterways, I

don't think.

MR. ANDES: He sounds --

MR. ESSIG: These are examples of

problems that could occur, but they're not

necessarily for specific waterway. They may

not be an issue.

MR. ANDES: So you don't disagree with

this as a general proposition, but you're not

stating how it might apply specifically here?

MR. ESSIG: Yes.

MR. ANDES: Okay. Next question: On

Page 6 of Appendix R, last paragraph states,

quote, in the following section we will

examine each water body, summarize the

196

physical limitations and the suggested tier

of which it to fit in the Ohio model,

unquote. Can you first describe the

recommended categories Mr. Rankin used from

the Ohio tier model?

MR. SMOGOR: Ohio EPA has four tiers

of aquatic life use, each representing a

different level of biological potential, the

highest level they call exceptional warm

water habitat use. And the next lower level

they call warm water habitat use, and then an

even lower level for another tier that

represents an even lower biological potential

they called modified warm water habitat use

and this modified level has three different

forms. One form is modified due to the

impacts of impoundment, another form is

modified due to the impacts of

channelization, and I think in Ohio typically

that's reserved for fairly small water sheds.

And the third form of modified warm water

habitat is modified due to the impacts of

mining. Their fourth and lowest tier is

called limited resource water, and, as I

197

understand, they're trying to move away from

that. That was kind of a default category in

the past. And that use, limited resource

water, to my understanding typically applies

only to very small water sheds less than

about three square miles drainage area.

MR. ANDES: Where does the Cuyahoga

River fit in there in that system?

MR. SMOGOR: I don't know offhand.

MR. ANDES: Okay. As to Mr. Rankin's

recommendations in his report, do you

understand those to have been based on actual

QHEI scores or on his professional judgment?

MR. ESSIG: I think they included the

QHEI scores, the individual habitat metrics,

and also his professional opinion.

MR. ANDES: Okay. We'll get to the

individual metrics in a moment. We'll go to

some follow-up questions on this same area of

inquiry. As to the field measurements

Mr. Rankin took in calculating the QHEI in

Attachment R, when were those field

measurements taken?

MR. SULSKI: They were taken towards

198

the end of March.

MR. ANDES: Of?

MR. SULSKI: Of 2004.

MR. ANDES: 2004. Okay. And as I

recall, Mr. Yoder, in his testimony, talked

about a change to the QHEI scoring protocol

regarding impoundments. The field

measurements that Mr. Rankin took were done,

am I right, before that change in the scoring

protocol?

MR. ESSIG: I don't know for sure.

MR. ANDES: Okay. Mr. Yoder stated in

his testimony on Page 142 of the transcript

from February 1st that that sampling was

prior to the QHEI modification. So then my

question is whether the changes made to the

scoring procedure might have affected the

QHEI scores given to the CAWS?

MR. ESSIG: Possibly.

MR. ANDES: And also on February 1st,

and this goes for the individual metric

issue, Mr. Sulski made a statement, and I'll

quote, "You have to look at the system as a

whole and look at other features including,

199

in some cases, the individual metric that

made up the score and why a QHEI score would

be what it is. Do you know what dragged it

down or raised it up," unquote.

MS. WILLIAMS: Are you quoting from

the transcript?

MR. ANDES: Yes. I'm sorry. Page 98

of the February 1st transcript.

MS. WILLIAMS: Thank you.

MR. ANDES: So, correct me if I'm

wrong, but this seems to say that in spite of

a low QHEI score, individual metrics might

result in placing a water body in a higher

category; is that correct?

MR. SMOGOR: Yes. To the extent we're

not relying solely on the final score to make

a judgment. You can look at how individual

metrics score and you can tally relative

numbers of what they call positive metrics

versus negative metrics.

MR. ANDES: All right. So let me take

off from there. Which metrics would be

looked at and how would they be looked at?

Is there a methodology in terms of how one

200

would take those individual metrics and

assess whether they should take a water body

up or down from where it's QHEI score

indicates it ought to be?

MR. ESSIG: Yes. If you take a look

at the Mr. Rankin's report, I believe it's

Table 2, there's a color-coded table, and it

has the various different habitat attributes

that he looks at. And there's positive

habitat attributes then what we call

high-influenced modified attributes, and also

moderately influenced habitat attributes.

You basically look at these different types

of attributes at each location and how many

fall into each category.

HEARING OFFICER TIPSORD: And just for

the record, when you say Rankin's report --

MR. ESSIG: Attachment R. I'm sorry.

MR. ANDES: And did the Agency also

use those metrics or does the Agency in this

proceeding, has the Agency used the metrics

in the same way that Dr. Rankin identifies in

Attachment R?

MR. ESSIG: Not exactly I don't

201

believe.

MR. ANDES: Explain to me how you use

them.

MR. ESSIG: We did look at the same

way when you get the number you have to --

HEARING OFFICER TIPSORD: Mr. Essig,

slow down and speak up, please.

MR. ESSIG: We did look at the number

of different habitat attributes for each

location. The one thing that they do, I

didn't get around to doing, was they do a

ratio of, for instance like the modified

habitat attributes, positive attributes.

It's not depicted on this table. I know

they've done that.

MR. ANDES: But IEPA did not do that

kind of calculation.

MR. ESSIG: I did not.

MR. ANDES: And nobody else in the

Agency did either, right?

MR. SMOGOR: No. And I don't think

Rankin's report, actually even goes that far.

I know that from the QHEI literature that

describes how to apply QHEI, and I'm not sure

202

if that's on the record, but Mr. Rankin did

put out papers that described the development

of QHEI and how Ohio uses the QHEI to address

designated uses. There is a portion of the

analysis of interpreting QHEI that points to

taking a look at the number of positive

attributes relative to the number of modified

attributes, but there was no formal analysis

of those types of ratios either in the

Attachment R or in the analyses or the

interpretations that we performed.

MR. ANDES: Okay. So is there any

place in writing where the Agency's thought

process on that is laid out?

MR. SMOGOR: Not explicitly, no.

MR. ANDES: Okay. Let me move on to

another issue in the February 1st transcript,

and this is with regard to Dr. Yoder's

testimony on Page 184. When asked about

whether the QHEI accounted for visible oil

sheens or sulfate odors in the sediment, he

stated, and I'm quoting, "The intent of the

QHEI is to evaluate physical habitat, not

chemical habitat. And it's intended that if

203

we were to do a complete evaluation of the

system like the CAWS, we would absolutely

have to have chemical data to go along with

that, periods unquote. So the suggestion

seems to be that it's very important to look

at the sediment and chemistry data with the

QHEI to get the whole picture of the waterway

system. So my first question is does the

Agency agree with what Dr. Yoder had to say?

MR. SULSKI: I would agree that to

have that type of data would be good data to

have to make a more fine-tuned evaluation.

MR. ANDES: But he said if we were to

do a complete evaluation of the system, we

would have to have that data. So I'm -- It's

not that it could be fine-tuned. He said to

have a complete evaluation, you need that

data, those data.

MR. SULSKI: We don't believe that you

need every available set of data in order to

make an evaluation.

MR. ANDES: How about any chemistry

data, sediment chemistry and toxicity which

are not really folded into the QHEI?

204

MR. SULSKI: Sediment, chemistry and

sediment toxicity data would be important

data to have, but not just sediment chemistry

in itself. Because it quite often doesn't

paint enough of a picture for you as we found

out in reviewing the data that we had for

this UAA, the toxicity data is important and

critical to make a determination on

availability of chemicals that are detected

in the sediments.

MR. ANDES: And part of that is

because sediment chemistry and toxicity

affect the aquatic life use potential of the

segment, correct?

MR. SULSKI: That's correct.

MR. ANDES: As to the sediment

characteristics, does the -- and I'm talking

in terms of for the current situation,

whether -- the question is does the current

sediment, chemistry, and toxicity contribute

to impairing aquatic life potential of the

CAWS as it currently stands now? What's your

opinion?

MR. SULSKI: This was asked and

205

answered earlier and the answer was that to

the extent that the physical structure of the

sediments applies as a metric within the

QHEI, we utilized it and Rankin did as well.

With respect to the chemistry and toxicity

data available for the system, the conclusion

was that we do not have enough data to make a

conclusion one way or another. We had a lot

of bulk chemistry data, very little toxicity

data, and most of the toxicity data was the

limited amount that we had was inconclusive.

MR. ANDES: Okay. Another question

about the QHEI scores in relation to IBIs.

And I don't have page numbers, but I believe

several times we've talked about the fact

that current IBIs are not as high as would be

expected given the QHEI scores. And so the

first question is, has the Agency evaluated

whether sediment impairment may be part of

the reason that the IBI scores are lower than

would be expected?

MR. SULSKI: The answer would be the

same as I just said.

MR. ANDES: Don't know?

206

MR. SULSKI: To the extent that they

contributed to a QHEI score.

MR. ANDES: Well, I'm thinking about

chemical impairment, toxicity, which really

isn't part of the QHEI scores. The question

is could that be part of the reason why the

IBI scores are lower than the QHEI scores

would tell you they should be. Is that sort

of the missing link?

MR. SULSKI: I would call it a missing

link.

MR. ANDES: Okay. Now, in terms of

the sediment chemistry data, I know that the

UAA report, Attachment B, did have some

chemistry data collected by the district, and

I think that was from 2002. And you've just

testified as to how sediment -- there's

limited information and how that was used in

the process. As the Agency may be aware, the

district has continued to collect sediment

data, chemistry and toxicity every year since

2002. That's all on the District's website,

some of it. Has the Agency examined any of

the additional district sediment data?

207

MR. SULSKI: We examined sediment data

as well as the contractor. I can't tell you

whether we examined data that wasn't

available to the contractor, but I can tell

you that all the data that we examined we

have put together and are willing to -- and

want to share with you all the data that we

looked at, and that would include the data

that the contractor looked at except for one

item on earlier 1990, late '90s sediment

chemistry data set that the district has

cited as having provided or generated. I

could not find that data source. But I --

MS. WILLIAMS: Can you clarify,

Robert? Are you talking about data that was

cited in the UAA?

MR. SULSKI: Data cited in the UAA.

MR. ANDES: So the contractor you're

talking about, CDM, quoted a UAA report for

the CAWS.

Well, I guess the question is if

additional data are available and we can say

that they are from the District having

collected both chemistry and toxicity data

208

since 2002, that can be made available, would

the Agency be willing to consider that

information in assessing this issue further?

MR. SULSKI: Absolutely.

MR. ANDES: Thank you.

MS. DIERS: I want to note on the

record, too, that we were asked to provide

the sediment data and as Rob referred to, it

was quite thick, and we weren't able to copy

that before we came here today. But we are

in the process of putting that information

together and will get that sent out to

everybody as soon as we can.

HEARING OFFICER TIPSORD: Thank you.

MR. ANDES: Moving on to additional

questions from our earlier specific

questions. On Page 23, and these are -- if

the question is going to be have I skipped

all the way to Page 23.

MS. WILLIAMS: Absolutely.

MR. ANDES: I'm checking right now. I

believe that's right. I think the rest of

the ones we have -- I can't swear to it right

now, but the questions we'll look at right

209

now are on Page 23, going into IBI. So we're

still in the habitat issue, but on the IBI

part of it. And these were questions for

Mr. Smogor.

The first one was Question 6

on Page 23, and this deals with Page 5-8 of

the UAA report, Attachment B, which states

that the 75th percentile IBI scores were used

to designate the aquatic life use tiers for

the CAWS. The IEPA used the Ohio Boatable

IBI to assist with conclusions concerning

aquatic life use designations.

First question: Are you aware

that on November 8, 2006, Ohio EPA published

an update to its user's manual for biological

field assessment in Ohio surface waters?

MR. SMOGOR: Yes.

MR. ANDES: And are you aware that on

Page 1 of the document they made two

modifications to how they calculated the

boatable IBIs?

MR. SMOGOR: Yes. These are two

corrections to typographical errors in the

table and the original document.

210

MR. ANDES: Okay. And were those

modifications taken into account in

calculating the boatable IBIs for the UAA

report?

MR. SMOGOR: No.

MR. ANDES: Okay. And my

understanding is that the calculation of IBI

users could be four IBI units which -- or

more which could be significant, correct?

MR. SMOGOR: I'd have to say it

depends. Based on published studies, the

estimated precision of an IBI, of a fish IBI

score, is plus or minus four points. But if

you're taking one score and comparing it to a

fixed threshold, then yes, a difference of

four more points would matter. But if you're

taking two scores, each with precision of

plus or minus four, you'd actually need a

difference of eight to call it a meaningful

difference in biological condition. Does

that help?

MR. ANDES: But these numbers were

used in classifying waters using particular

use categories, and there it could make a

211

difference in terms of which category a water

body goes into, right?

MR. SMOGOR: Well, we -- I'd like to

point out that we're not -- We didn't really

define the proposed aquatic life uses based

on current biological conditions. Again, the

proposed uses are based on our interpretation

of what the biological potential or an

attainable condition. So it is possible that

the scores that we did look at and helped

kind of inform the whole process do have

errors in scoring in the CDM report. But I'd

like to point out that we're not basing a lot

of our judgment on what the proposed aquatic

life uses are on the current conditions,

current biological conditions.

MR. ANDES: But the IBI scores are

part of the process. They are one of the

factors --

MR. SMOGOR: They were consulted.

They helped inform the process. They told

us, like you had mentioned earlier, it

doesn't look like currently the biological

condition is attaining what we believe is

212

attainable for these waters. So that does

help inform the process looking at current

conditions. But it doesn't necessarily help

you define the aquatic life use or help us

define the aquatic life use that we propose

for these waters.

MR. ANDES: So it's a factor, but the

Agency has not really assessed whether this

error might affect the classification of any

particular water bodies here?

MR. SMOGOR: We haven't fully examined

all of the corrected scores.

MR. ANDES: You haven't examined.

Rather than fully examined, have you

partially examined them?

MR. SMOGOR: We haven't received or we

haven't looked at the corrected scores.

HEARING OFFICER TIPSORD:

Miss Franzetti, you have a follow-up?

MS. FRANZETTI: Mr. Smogor, it really

becomes difficult to get a handle on what the

Agency was relying on to reach conclusions,

and it's going to be hard for me to fit this

into a short question. Bear with me. But

213

just a few questions ago, Mr. Andes was

emphasizing the point that the Agency place

some emphasis on the difference between the

gap, so to speak, between the IBI scores and

the QHEI scores as an indication that these

water bodies are not reaching their

potential, okay? And now Mr. Andes has also

pointed out that there may be some

corrections that should be made to the IBI

scores. You're saying, well, but the IBI

scores are not really what we relied on for

making use designation determinations, and

yet that prior exchange would seem to

indicate that you were at least, to some

extent, and maybe we can -- the argument is

over what extent, but it seems like you were

using that gap between the IBI scores and the

QHEI -- I guess I should be going like

this (indicating), the QHEI to say there's

more potential out there. They can attain a

higher score. So now I'm confused what is

the Agency's --

MR. SMOGOR: That's correct. But what

drove our interpretation of potential was

214

really where that QHEI score and where the

physical habitat information is at. How far

the current IBI scores are from that, like I

said, informs the process. But really we're

basing our potential on the physical habitat

capabilities of the system given the level of

irreversible impact. So whether or not your

current conditions are sort of close to that

or far from that, it doesn't change that

upper bar, that upper expectation.

MS. FRANZETTI: And that upper

expectation being primarily driven by the

QHEI scores?

MR. SMOGOR: Primarily driven by the

physical habitat information. I'm not going

to say solely final QHEI scores, but

primarily driven by the physical habitat.

MS. FRANZETTI: Thank you, Mr. Andes.

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: So, for example, for the

Cal-Sag Channel, in assessing the biological

potential of the Cal-Sag, the presence of a

littoral zone, was that relevant to the

ultimate conclusion of the biological

215

potential of that part of CAWS, that segment

of CAWS?

MR. SMOGOR: You guys can --

MR. SULSKI: Yes.

MR. HARLEY: Were tributary

connections relevant to the biological

potential?

MR. SULSKI: Yes.

MR. HARLEY: Shore line structure?

MR. SULSKI: Yes.

MR. HARLEY: Bottom substrates?

MR. SULSKI: Yes.

MR. HARLEY: Ripple pool development?

MR. SULSKI: I don't think so.

MR. HARLEY: Okay.

MR. SULSKI: I don't know many rippled

pool zones, if there are any.

MR. HARLEY: In terms of littoral

zones, tributary connections, shore line

structures, bottom substrates, would any of

that be altered -- your evaluation of those

factors -- would any of that be altered by

changes in the QHEI score and the IBI

protocol or in the sediment, chemistry, or

216

toxicity?

MR. SULSKI: Well, the QHEI score and

some of these other attributes that you

mentioned are the drivers, okay? And then we

have IBI data, we look at the IBI data to see

if what we expect out of that type of habitat

is there. If it's not -- If it is, we're

happy with what the habitat is telling us.

If it's not, if it's lower quality or lower

IBIs, that's when we begin to look for

purposes for that, stressors. So we identify

stressors, and that's where the chemistry

then starts to come in. What does the

chemistry say about these waterways? And all

that information is taken into consideration.

MR. HARLEY: And you took all that

information into consideration in coming to

the conclusion that the Cal-Sag Channel, for

example, deserved aquatic life use A

designation?

MR. SULSKI: Yes.

MR. ANDES: Except for the sediment

data which you had a very limited amount that

really wasn't considered to a great extent,

217

correct?

MR. SULSKI: Well, the -- We

considered what we had and we determined that

we don't have enough information on sediments

to say one way or another whether they are a

stressor. However, we did get into long

discussions on how we believe sediments are

improving over time. So it was easier to --

MR. ANDES: That wasn't based on any

data. That was just based on --

MR. SULSKI: Just reasoning on less

overflows, other programs that have come in

to be, better wastewater treatment, those

sorts of things.

HEARING OFFICER TIPSORD:

Mr. Ettinger?

MR. ETTINGER: Mr. Andes pointed out

what he referred to as an error in the

calculation of the IBI scores relative to

this correction that was made by Ohio EPA in

2006. Could we make that correction from the

documents we have available to us?

MR. SULSKI: I have talked to the UAA

contractor, CDM, and they agreed to do that

218

for us.

MR. ETTINGER: Are we expecting an

answer from them?

MR. SULSKI: Yes. They said that they

would do that, and as soon as they could, and

I got an impression it was in a couple of

weeks.

MR. ETTINGER: Thank you.

MR. HARLEY: One more. I apologize.

You mentioned several factors that might

suggest that sediments over time might become

less toxic. Could you describe the

character -- the physical process of natural

attenuation generally as it relates to

toxicity in sediments.

MR. SULSKI: As time progresses, I'm

assuming you don't have anymore inputs,

physically things move further downstream.

They get --

MR. ANDES: Let me stop you for a

moment. Do you know what inputs you're

getting from CSOs and MS4s?

MR. SULSKI: Exactly I don't -- I

haven't quantified the amount -- the

219

quantity. But what was also factored in is

the fact that CSOs would be reduced over a

period of time with the completion of TARP.

So we made that point that it would --

MR. ANDES: When would that happen?

MR. SULSKI: That will be in --

MR. ANDES: Over the next about 15 to

20 years, right?

MR. SULSKI: Yes. That pretreatment

program, for example, was brought up. Since

the '70s pretreatment programs have reduced

the amount of toxics that actually go into

the sewers that then overflow out CSOs.

Sediments get resuspended in these waterways

that have a better quality in terms of

dissolved oxygen. So there is in situ

treatment going on. We can go back to the

record. We listed about seven or eight

processes or circumstances that continue to

occur that suggest that sediments will and

are improving. We did acknowledge, though,

that we don't have --

MR. ANDES: And let me ask a

follow-up -- I'm sorry. There are two

220

separate issues there. One is is the

sediment quality improving, and the Agency

doesn't really have data on that, but it has

some reasons, it believes, suggests that the

sediment quality may be improving. But the

other question, actually the data that the

District can provide will be relevant to

this, is even if improving, are the levels of

various toxics in the sediment still at

levels that could pose significant issues in

terms of aquatic life impairment? And the

issue of trends or improvement doesn't really

answer the question of are they still at

levels that could pose an issue as a

stressor, correct? It could be less than

they are before and still be above the levels

they that would become a major stressor?

MR. SULSKI: We didn't have the data

to evaluate. If there is data available, as

I said, we'd love to look at it and have it.

MR. ANDES: Let me move on to another

question also concerning an inaccurate IBI

scoring measure in Table 4-11 on Page 417 of

Attachment B. This concerns a special

221

procedure should be used when relative

numbers are less than 200 per 1.0 kilometers,

not 200 per 0.3 kilometers. That seems to be

another error in the IBI scoring process

here.

MS. WILLIAMS: Which number is this?

HEARING OFFICER TIPSORD: This is I.

MS. WILLIAMS: Thank you.

MR. SULSKI: What was the question?

Please repeat the question.

MR. ANDES: Would you agree that

there's an inaccurate IBI scoring measure on

Table 4-11 for fish number and special

scoring procedures?

MR. SMOGOR: Yes.

MR. ANDES: And has the Agency

assessed what difference that makes in the

IBI scores?

MR. SMOGOR: No.

MR. ETTINGER: Is that another thing

they've been asked to correct?

MR. SULSKI: Yes.

MR. ANDES: Now, do we have anywhere

in the record IBI scores reported for CAWS in

222

a tabular form so we can compare calculations

maybe in there? I haven't seen it. But if

not, that would be very helpful.

MS. WILLIAMS: I don't know how long

that would take, but.

MR. SULSKI: I don't know that -- I

don't know whether we can or not.

MR. ANDES: That would be helpful if

we could hear back on how extensive an

operation that would be.

MR. SMOGOR: If the contractor is

redoing all these scores, I think part of

that process is having this information in

some kind of tabular format. So I don't

think it would be that unreasonable to expect

that they'll be able to get us that, but I

don't know for sure. We didn't ask him

specifically.

MR. SULSKI: We didn't ask them

specifically for that but I can touch base.

MR. SMOGOR: It would be a normal part

of the process.

MR. SULSKI: I'll touch base with

Mr. French.

223

MR. ANDES: Thanks. This is question

N, I'll skip to: How do the fish communities

in the CAWS compare to the fish communities

who were initially used to calibrate the Ohio

Boatable IBI?

MR. SMOGOR: The reference condition

fish communities use to calibrate the Ohio

boatable IBI most likely represent locations

less impacted by human influences than most

of the CAWS.

MR. ANDES: What does that tell you in

terms of whether that procedure is relevant

to the CAWS?

MR. SMOGOR: The way an IBI is

developed is you set expectations based on

least disturbed conditions. So that's a

benchmark. So when you go out to a site and

you really don't know what the conditions

are, then you perform an IBI analysis, your

IBI score is, in effect, just a simple

measure of how far you are from the

benchmarks of what the site, we're expecting

the site to be, what the site should be

lacking human impact. So the farther you are

224

with your conditions from the benchmark, then

the lower the IBI score. So that applies

anywhere. If the IBI is developed well

enough, it will be an indication of the level

of human impact if the metrics are

appropriate from place to place to place.

Maybe that's what you're getting at, are the

metrics appropriate.

MR. ANDES: Right. And ordinarily it

would be better to -- the closer the

reference is to that water body, the better.

MR. SMOGOR: The ideal situation is to

set your benchmarks based on the stream

you're interested in, if you could magically

remove the human impact. So all other non --

all other issues not related to human impact

would be part of that benchmark condition.

But that's the ideal and rarely is that met.

And if I believe -- I believe, at least from

the Lower Des Plaines, and I'm assuming this

extends to the CAWS, the work groups decided,

at least for the lower Des Plaines River, the

biological work group decided that there were

no legitimate reference least disturbed

225

conditions for the Lower Des Plaines, and I'm

guessing the same thing was probably decided

in that region of the CAWS. There's really

no legitimate reference condition, so --

MR. ANDES: Let me stop you there.

Doesn't that influence the amount of

confidence that one can have in the

conclusions you reach about what that water

body can be upgraded to if we don't really

have a legitimate reference to compare it to?

MR. SMOGOR: Well, it's an ideal

situation to have reference, but when you

don't have reference, you still have to come

up with what's the potential of this water.

And I agree, that's a much more difficult

thing to do without reference conditions from

that particular region. But that doesn't

mean that you can't be informed by reference

conditions from another area to some degree

and use the information that you have at hand

to set reasonable uses to the best of your

ability.

MR. ANDES: What gives you the level

of confidence for regulatory purposes that

226

this particular method is the best applicable

one to this situation? And we can base

finding sets of regulations on that.

MR. SMOGOR: Well, again, if you're

asking whether or not the Ohio boatable IBI

is appropriate for indicating current

biological conditions in the Chicago Area

Waterways, I think that was kind of a

consensus agreement realizing that it was an

index that wasn't based on reference

conditions directly from that region. But

I'd also like to point out that the uses we

proposed for the CAWS are not necessarily

driven by the Ohio boatable IBI scores. They

were largely driven by the physical habitat,

what is the capability or the potential of

the CAWS, of the waters in the CAWS.

MR. ANDES: Well, two thoughts on

that: One is I'll go back to

Miss Franzetti's question, which is it's not

that the IBI scores were entirely irrelevant.

They were --

MR. SMOGOR: I'm not saying that. I'm

not saying that they're entirely irrelevant.

227

MR. ANDES: So I guess part of the

other question is might the fact that when we

talked about IBI scores being unexpectedly

low, for example, might that we want to go

back the other way and, in fact, question is

the QHEI process the right way to really look

at the potential of this water body if the

IBI scores aren't coming out near where we

would expect them to be based on the QHEIs?

MR. SMOGOR: About all I can say to

that is we took -- I think there was an

agreement among the stakeholders, and I can't

speak for the CAWS as much as I can speak for

some of the meetings I attended for Lower Des

Plaines River. But I think there was a

general agreement among the stakeholders that

even though these tools are imperfect,

they're probably the best tools we have to

look at these types of questions, and we'll

go ahead and use these tools and help these

tools inform the overall process. And none

of these tools are perfect. So we use what

we believed was reasonably applicable.

MR. SULSKI: And if it was a case

228

where we found a disparity between the IBIs

and the QHEIs and we went and looked and

found no stressors, we didn't find that the

oxygen drops to zero periodically, we didn't

find temperatures that were elevated that,

according to the criteria documents and the

other information we looked at suggested that

they were stressors, then, yeah, that might

be a useful exercise. But when we -- right

off the bat we identified significant

stressors. So that's my answer.

MR. ANDES: Okay. Let me ask about

another stressor, and this was Question Z in

our prefiled. This was concerning impervious

surfaces that haven't been demonstrated to

have significant impact on aquatic life

indices when greater than 15 percent of a

water shed is impervious. And it wouldn't

surprise anyone that Cook County has been

estimated to have over 40 percent impervious

surfaces. How does that kind of extreme

water shed modification fit into this

approach?

MS. WILLIAMS: I know I objected to

229

that, I think, or somebody objected to

similar questions last time where there's a

statement of fact about an impact that is not

in the record that I'm -- that is not.

MR. ANDES: I can withdraw the factual

statement. The question is how does the

extreme water shed modification of large

percentage of impervious surface get

considered in this process?

MR. ESSIG: The QHEI to some extent

takes that into consideration, some of the

metrics, for instance, like the riparian

zone. With the riparian zone and also the

land use category, it does have industrial

urban areas that you would check off on the

QHEI. So it does take that into account to

some extent.

MR. ANDES: To a fairly limited

extent, though, right? It wouldn't make a

major differentiation between a water -- a

water shed where it's 25 or 40 or 50 percent

impervious versus in an area that might be

classified as urban?

MR. ESSIG: I would tend to disagree.

230

I think it could make a big difference in the

score. The maximum score for that metric, I

believe, is ten. And if you have industrial

land use, your basic score is zero for that

one part. And if you don't really have any

repairin zone, you're not going to get any

points for that either or maybe one or two

points. So the score for that metric will go

down quite dramatically, or at least it

potentially does.

MR. ANDES: So there is no direct way

that the impervious surface -- and obviously

that's an issue we've talked a lot about in

the context of storm water run-off lately,

and I'll get to storm water run-off in a

minute. But there's no direct metric that

counts for this percentage and how it might

influence the process. There's a rough --

There are some rough measures based on an

urban -- based on industrial land use or a

lack of repairin zone; is that correct.

MR. ESSIG: That's correct.

MR. ANDES: Okay. Now, in terms of --

I had a couple of follow-ups on that issue.

231

Has the Agency looked at the extent of the

drainage area here for CAWS, and I'm thinking

in terms of storm water run-off as well as

the extent of the combined sewer area, and

thought about how those factors might fold

into this process in terms of extent of

either CSOs or storm water run-off

contributing to the impairment?

MR. SULSKI: Whether we considered

that storm water run-off and CSOs contributed

to impairment or that our stressors? I mean

we talked about CSOs quite frequently in the

meetings and identified that they do occur

and that there are oxygen sags down to zero

when they occur. And so, yes, we did

consider that.

MR. ANDES: But the question -- well,

first, the question is not really what was

discussed in meetings. The question is in

the Agency's decision-making process, in

putting this rulemaking forward and in

thinking about the aquatic life use potential

of these water bodies, okay, given that

there's nothing here that directly addresses,

232

for example, the CSOs or the MS4s. And I'm

trying to figure out in developing this rule,

has the Agency looked at, in considering

aquatic life use potential, the ongoing

stressors of storm water run-off from a large

urban area and thousands of CSO discharges

per unit?

MS. WILLIAMS: I think this question

has been asked and answered not just today,

but probably all three sets of hearings. If

you disagree, I'll accept that, but he's

asking if we've looked at CSOs --

MR. ANDES: Well --

HEARING OFFICER TIPSORD: As a

stressor.

MR. ANDES: I'm sorry. Part of the

reason we asked this is because in the March

10 testimony, Mr. Sulski talked about water

run-off as being a drop in the bucket on

Page 152 of that transcript.

MS. WILLIAMS: Okay.

MR. ANDES: So if the Agency on the

one hand admits that these are significant

factors and wants to talk about how they

233

considered them, that would be fine. I would

expect that. But talking about urban run-off

as a drop in the bucket makes it sound as if

it wasn't considered as a significant factor.

So I'm trying to get that clarified.

MS. WILLIAMS: Okay. Not whether it

was considered, but whether it was considered

significant? Is that what you're asking?

MR. ANDES: Yes.

MS. WILLIAMS: Okay. I'll accept

that -- I'll withdraw my objection.

MR. SULSKI: I think it would be fair

to say that it was, relative to the other

stressors identified, it was an insignificant

factor and we moved forward with dealing with

what were identified as significant factors.

MR. ANDES: And the reasoning behind

considering it an insignificant factor?

MR. SULSKI: Because for the majority

of the year, the waterways are dominated by

dry weather conditions with some eruptions of

CSOs and some impacts, and that much of the

urban run-off, the most significant or

highest load of urban run-off occurs at the

234

beginning of a storm event which often gets

captured by TARP. So it's the first flush

that gets captured by TARP.

MR. ANDES: Currently captured by

TARP?

MR. SULSKI: Now and into the future

at a greater frequency or to a greater

extent.

MR. ANDES: Potentially over the next

20 years?

MR. SULSKI: Over the construction,

yeah.

MR. ANDES: But isn't there storm

water that don't go to TARP at all and won't

go to TARP?

MR. SULSKI: There is storm water that

won't go to TARP and doesn't go to TARP. And

the areas where that occurs in terms of

contributions to the system were considered

less important than the effluents and the

CSOs and those identifiable stressors. We

had to have chemistry to back that up in

terms of DO.

MR. ANDES: Describe the chemistry.

235

MR. SULSKI: The chemistry is

available in reports. For example, what

happens with DO when you have a storm event

and shortly after a storm event. Did you

want me to refer you to pages?

MR. ANDES: Yes.

MR. SULSKI: It's in appendix --

Actually, you have a question like that, and

I wrote down the sources. We also --

MR. ANDES: Does the information in

the report in your belief differentiate

between storm impacts and non storm impacts?

MR. SULSKI: With respect to DO, yes,

and temperature is included in those.

MR. POLLS: When you use the word

water run-off, does that mean separate storm

sewer overflows and combined sewer? Do you

use that in that definition?

MR. SULSKI: Of urban run-off? No.

We looked at urban run-off in referring to

separate sewer areas.

MR. POLLS: So combined storm --

MR. SULSKI: Separate storm.

MR. POLLS: Combined sewer overflow is

236

not considered urban run-off; is that

correct?

MR. SULSKI: Correct.

MR. POLLS: Okay. So if Fred is

saying a -- What you just said is you're

looking at DO data. Are you looking at

continuous DO data?

MR. SULSKI: Correct.

MR. POLLS: How did you differentiate

separate storms sewer overflow versus

combined sewer overflow?

MR. SULSKI: In some cases where we

have fish gills, for example, the District

provided data that, you know, where a couple

of days before a rain event, true rain event,

and a couple of days after a rain event?

MR. POLLS: Give me a specific

example. Because I don't understand. I

don't think you're answering the question.

MR. SULSKI: Maybe you should rephrase

the question.

MR. ETTINGER: Can I object here?

We're messing up a lot of terminology, and I

think it's confusing the witness, and it's

237

certainly confusing the transcript. A CSO is

not run-off in the Clean Water Act, and I

don't believe the witness is understanding it

that way. And when we flip back and forth

between run-off and CSOs and storm sewers,

which are not run-off either, we're not

making a very clean record here. So I just

hope that we can separate -- I don't know

whether the witness is able to break down the

relative contributions of these different

sources, but I don't want to mix and unmix

between questions.

MR. ANDES: That's fine. Let me take

it -- Jeff, did you want to?

MR. FORTE: Go ahead. But I have a

question here that, once you finish your

question, I will follow on.

MR. ANDES: What we're trying to

understand are what the stressors are that

were considered; and, in particular, we're

focussing on wet weather sources which there

are several. And I'm not trying to

differentiate between them right now in terms

of nature of impacts. I'm looking more at

238

how wet weather sources are considered. And,

in fact, this actually goes also to

Mr. Safley's question about the icing salt in

terms of that being part of the contaminants

in wet weather sources. So we're trying to

get a sense of how we're -- particularly

because at one point you have been referred

to in testimony as really insignificant

factors on the aquatic side, and yet we're

seeing a number of areas where it could be

potentially very significant in terms of

influencing the aquatic life potential of the

stream. So we're trying to account for that

and understand that conflict.

MR. SULSKI: Well, when we --

MS. WILLIAMS: Was that a -- Could you

ask it as a question?

MR. ANDES: I hope that clarifies what

I'm asking. If Mr. Sulski wants to respond

to that and then Mr. Forte can --

MS. WILLIAMS: Well, his attorney

would like to make sure you've asked the

question now that you've clarified what

you're getting at because --

239

MR. ANDES: Will you help us

understand --

MR. FORTE: I have a question,

actually, that follows on what you said.

MR. ANDES: Go ahead.

MR. FORTE: Mr. Sulski, going back to

your prior comment. I believe you testified

a couple minutes ago, a couple of pages ago

probably now in the transcript, something to

the effect that you concluded that urban

runoff was an insignificant factor in terms

of looking at the stressors. Do I recall

that testimony closely?

MR. SULSKI: Relative to what we

looked at it was insignificant.

MR. FORTE: Okay. And --

MS. WILLIAMS: And I think Albert

asked that we be clear when we say urban

runoff. What do you mean?

MR. FORTE: Thank you. That's my

question.

MS. WILLIAMS: What do you mean?

MR. SULSKI: Okay. Urban runoff I

consider as runoff from the land, either

240

directly or via storm sewers from areas that

are separately sewered; in other words, they

have a storm sewer system separate and aside

from the sanitary system that conveys

domestic waste. It does not include combined

sewer areas.

MR. ANDES: Let me --

MR. FORTE: I have one more. And does

that then, this runoff, include then not just

thunderstorms and rain events, but also snow

melt?

MR. SULSKI: The runoff would include

snow melt, yes.

MR. FORTE: Thank you. Thank you.

MR. ANDES: Now, the extent we're

talking about, whether it's CSOs or whether

it's MS4s, which I have -- it's a clearer

term in my mind come to separate storm sewer

systems, the question is the Agency is making

a judgment that these are not significant

factors in the DO issue and part of the

question is how can you really tell that from

continue DO data? How can you differentiate

the sources and what contribution they're

241

making to the problem through that?

MR. ETTINGER: I object to that

because he didn't say that CSOs were an

insignificant source. He said that the

runoff was an insignificant source.

MR. ANDES: Okay. Fine. Let's talk

about that then. That's fine.

MR. SULSKI: When we went through the

UAA process, we identified potential

stressors, then we focussed in on what the

group believed were the most significant

stressors that were either -- that were not

being dealt with at the time or that had a

long range -- that weren't being dealt

with -- that needed to be dealt with more

than they were being dealt with in the

programs that we have in place today, okay?

So when it comes to storm water relative to

DO and temperature and what aquatic life uses

we expect out of these waterways, the storm

water runoff dropped by the wayside, not just

because in terms of flow we thought it was

insignificant, but also that we have programs

in place to deal with those. And that would

242

be the separate storm, separate sewer,

separate MS4 permits, you know, and BMPs and

that and nonpoint related --

MR. ANDES: Okay. Then let me --

That's helpful. Let me stop you there.

So there was some judgment

made in terms of the size of the loadings

from those sources, but there's no real data

on that, right, in terms of how -- what the

loadings are coming from MS4s?

MR. SULSKI: Well, the data is in the

water quality data itself. In some cases we

were able to parse out wet weather related

changes in certain parameters, but not in all

cases.

MR. ANDES: Could you really

distinguish those as being CSO related or MS4

related?

MR. SULSKI: Well --

MR. ANDES: If it was just wet

weather, it could be either one.

MR. POLLS: We're asking how did you

differentiate. That's my question.

MR. SULSKI: Yeah. In the case of

243

CSOs, we had continuous monitoring data from

the district for DO that showed DO at really

good levels, and then, boom, there was a CSO

episode and the DO dropped to zero. And as

you went further down the stream it stayed

bottomed out for a while and then the rain

stopped and the CSO stopped and then the DO

recovered.

MR. ANDES: But also the MS4s start

during wet weather events and stop when the

rain stops, right? You didn't have a way to

tease that out of there, did you? I mean

they're wet weather sources just like CSOs.

They'd be expected to have a similar

frequency than CSOs in general. It rains,

you have MS4s just like when it rains you

have CSOs.

MR. SULSKI: So your -- The question

is did we tease out what contributions

nonpoint source had to that DO sag?

MR. ANDES: Yeah.

MR. SULSKI: Let me --

HEARING OFFICER TIPSORD: If I may, I

believe the question basically is when you

244

have wet weather event, you have discharges

from CSOs and you have the MS4s which are the

general storm water permit discharges.

You're saying that at that point dissolved

oxygen went to zero. How do you know which

of those two sources resulted in dissolved

oxygen going to zero?

MR. SULSKI: I don't.

HEARING OFFICER TIPSORD: Mr. Harley

then Mr. Ettinger.

MR. HARLEY: Do you know on average

how many wet weather events there are

annually in the CAWS area?

MR. SULSKI: Wet weather events of

what magnitude?

MR. HARLEY: Wet weather events that

would lead to the kind of overflow conditions

that were just the subject of the questions

that you were asked.

HEARING OFFICER TIPSORD: The CSO

overflow.

MR. SULSKI: Approximately 12 to 15.

MR. HARLEY: So that would leave more

than 345 days that would not be directly

245

influenced by wet weather events.

MR. ANDES: Wait a minute.

MR. SULSKI: They would be influenced

by wet weather events, but not a CSO

necessarily. So you have storm events that

occur, you don't have a CSO, but the

waterways are influenced by wet weather

events.

MR. ANDES: Also, let me just

factually clarify something. When we're

talking about 15 on the average CSO events

per year, that's per outfall. And we have

some 300 outfall. So we're not talking about

only 15 days of the year where there might be

a CSO event at one outfall, it's considerably

more than that.

MS. WILLIAMS: You're asking it as a

question or --

MR. ANDES: Are there more than 15

days in a typical year when you would have a

CSO event at any one outfall?

MR. SULSKI: Yes and no. Some CSOs

rarely, if ever, have an overflow. Others

have more than 15, okay? So that's an

246

average number, if you averaged all the whole

number of CSOs.

MR. ANDES: So on the average, a CSO

outfall point discharges 15 times a year?

MR. SULSKI: On average.

MR. HARLEY: A follow-up.

HEARING OFFICER TIPSORD: And then --

MR. HARLEY: A quick follow-up. It

is, did that enter into your judgment about

the significance or insignificance of CSOs,

MS4s, and urban runoff as a contributor to

conditions in the Chicago area waterways?

MR. SULSKI: Well, the judgment is

this: You have storm water runoff that

occurs at a much higher frequency than 15

times a year. You have rain events. Those

rain events result in runoff. I can't tell

you whether it's 30 times a year, 40 times a

year. It varies with the year. But then you

have these certain events that result in

CSOs, and you look at all the water chemistry

provided to us, and it's during those CSO

events that you have the dissolved oxygen

sags. But when you look at all over the --

247

at that data all over, the data was not

parsed out for specifically storm events, but

you would assume that some of that data did

include some storm events. So the rest of

the data, aside from those CSO events,

indicates that the water quality is really

good for most parameters except for the

temperature -- I don't want to use the word

really good. I want to use the word didn't

meet the screening data that was utilized in

the UAAs. Does that answer your question?

MR. HARLEY: Yes.

HEARING OFFICER TIPSORD:

Mr. Ettinger?

MR. ETTINGER: This is such a fun

topic, I just wanted to try and tease out

something else. Do we have an estimate or a

guesstimate of what percentage of the

watershed that's going through this water

system or this system is with separate sewers

versus combined sewers?

MR. SULSKI: I don't think so. It's

area by area.

MR. ETTINGER: Are there a lot of

248

separate systems up here or are they mainly

combined systems?

MR. SULSKI: I would have to go back

to the books.

MR. ETTINGER: Okay.

HEARING OFFICER TIPSORD: Mr. Andes, I

think we're back to you.

MR. ANDES: Okay.

HEARING OFFICER TIPSORD: I'd like to

finish this topic, but if we are finished

with this topic, this might be a good

stopping point. I just want to say that. If

you still have a couple more questions on

this topic, let's finish those.

MR. ANDES: Actually, I would say I do

have a few more questions on IBI, but I'm not

sure that we can finish them in a few

minutes.

HEARING OFFICER TIPSORD: All right.

Well, in that case. It's almost quarter to

7:00, so let's go ahead and call it a night.

9:00 o'clock tomorrow morning, everyone, and

we'll start with Mr. Andes.

249

(At which time the

hearing was continued to

April 24, 2008.)

* * * * *

250

1 STATE OF ILLINOIS )

) SS.

3 COUNTY OF COOK )

I, LAURA MUKAHIRN, being a Certified

6 Shorthand Reporter doing business in the City of

7 Chicago, Illinois, County of Cook, certify that I

8 reported in shorthand the proceedings had at the

9 foregoing hearing of the above-entitled cause. And

10 I certify that the foregoing is a true and correct

11 transcript of all my shorthand notes so taken as

12 aforesaid and contains all the proceedings had at

13 the said meeting of the above-entitled cause.

___________________________

LAURA BERNAR, CSR

CSR NO. 084-003592