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 24th day of April, 2008, commencing

14 at the hour of 9:00 a.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. ALISA LIU

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

morning. My name is Marie Tipsord and I've

been appointed by the board to serve as

hearing officer in this proceedings entitled

Water Quality Standards and Effluent

Limitations for the Chicago Area Waterway

System and Lower Des Plaines River. Proposed

amendments to 35 Illinois Admin. Code 301,

302, 303 and 304. The docket No. Is R08-9.

To my immediate right is Dr. Tanner Girard,

presiding board member in this proceeding and

to his right is board member Thomas Johnson.

To my immediate left will be Anand Rao and to

his left will be Alisa Liu from the technical

staff.

This is Day Two of our third

set of hearings which I think now makes 11

days of hearing, ten days? I've lost track.

The purpose is to continue with questions for

the Environmental Protection Agency. The

Agency witnesses were introduced and sworn in

yesterday. I'll have you introduce them

again just for purposes of the record, and I

ask that everyone again identify yourselves

today for the first time in case someone

picks up this transcript blind. We still

have questions from the Metropolitan Water

Reclamation District of Greater Chicago and

ExxonMobil Oil Corporation. Anyone may ask a

follow-up question and not need wait until

your turn to ask questions. After we

finished the pre-filed questions, I will

allow for additional time for anyone who

might have questions based on material that's

been presented since the beginning of these

hearings. After I've acknowledged you, as

I've said, please state your name and who you

represent, 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. Note that any questions by a 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. Today we will not go until 7:00

o'clock. Hopefully we will be done before

5:00, but at least until 5:00. And with

that, I see that Mr. Andes looks like he's

ready to go.

MR. ANDES: Fred Andes, Metropolitan

Water Reclamation District, Greater Chicago.

HEARING OFFICER TIPSORD: I think I

was going to have you introduce the witnesses

again for the record.

MR. TWAIT: I'm Scott Twait for the

Illinois EPA.

MS. WILLIAMS: Debra Williams,

assistant counsel Illinois EPA.

MS. DIERS: Stephanie Diers, counsel

for Illinois EPA.

MR. SULSKI: Rob Sulski, Illinois EPA.

MR. ESSIG: Albert Essig, Illinois

EPA.

MR. SMOGOR: Roy Smogor, Illinois EPA.

HEARING OFFICER TIPSORD: And, again,

you were all sworn in yesterday, so.

MS. WILLIAMS: Except for Miss Diers.

MR. ANDES: We're going to continue

with questions on IBI issues, and this is a

follow-up question. On Page 12 of

Attachment U, which is entitled Interpreting

Illinois Fish Ibi Scores, it states, quote,

we think that explicit definition and

description of the biological, chemical, and

physical conditions expected to occur at

various levels of biotic integrity can help

clarify, standardize, and improve the

reliability of some of the subjectivity

necessary involved using IBI scores to help

assure attainment of aquatic life use.

MS. DIERS: Excuse me, Fred. Is this

a prefiled question?

MR. ANDES: I'm sorry. It was a

follow-up.

MS. WILLIAMS: We're looking on

Page 12 of U?

MR. ANDES: Yes.

MR. SULSKI: Where does it start,

please.

MR. ANDES: We think that explicit

definition and description. So my question

as to that is does the CAWS UAA provide

explicit definition and description of the

biological, chemical, and physical conditions

expected to occur at various levels of biotic

integrity and, if so, can you point us to

where in Attachment B it does that.

MR. SMOGOR: I don't know if the UAA

addresses this sentence in particular. This

sentence was not meant to address UAAs in

particular. This is my writing, this is

something that I created, this report, with

the help of others. And, in general, if I --

What I was talking about here is just in

general terms applying fish IBIs. It always

helps to have that type of information, but

that doesn't mean you can't make decisions

and interpretations based on less than the

ideal set of information. We're often not

afforded the ideal set of information. So I

think that's why I used the word can help

assess attainment. It was a bit of a

qualifier there realizing that we never have

perfect and complete information to make the

decisions and to make the interpretations

that were called upon to do. And that's all

I meant there, is just speaking in general.

MR. ANDES: So the UAA report does not

provide that explicit definition and

description? Am I right?

MR. SMOGOR: I would say we believe

that UAA and the additional information

that's on the record provides sufficient

information to allow us to come to the

conclusions and interpretations that we've

presented in this rulemaking.

MR. ANDES: That wasn't my question.

The question was does it provide the explicit

definition and description of the conditions

expected to occur at various levels of biotic

integrity?

MR. SMOGOR: Does it provide explicit

definition and description? I don't know.

It depends on how someone would interpret

that word explicit.

MR. ANDES: Well, if you think it

might be there, then tell me where it is.

MR. SMOGOR: I think it -- What we've

been talking about through all these

proceedings is that the information is

sufficient in some person's judgment that may

not meet the definition of explicit. I think

some of the information is explicit. It's

very detailed. It talks about -- the

information is detailed enough to come to

reasonable interpretation.

MR. ANDES: But I recall that in

response to several questions in earlier

hearings when we asked can you define a

specific set of biological conditions, fish

species, et cetera, that would occur at

various levels of biotic integrity, that the

answer we got was basically, well, no, we

haven't defined that. It's more that the IBI

score would go from X to Y. But we haven't

defined exactly what it means in terms of

would that mean more of a particular species

or better diversity or whatever. It was

simply that overall the scores would go up.

And I believe that was the Agency's testimony

in past hearings.

MR. SMOGOR: I'm not sure exactly what

you're talking about there, so I can't

comment on that interpretation.

MR. ANDES: Okay. What we're trying

to understand is if the document you wrote

says that explicit -- this explicit

definition and description would help address

the subjectivity involved with using IBI

scores to help assess attainment, but we

can't pinpoint any particular place in the

UAA report where it actually provides

explicit definition doesn't mean, well, if

you look at all the documents, it's in there

somewhere. Explicit means clear, set forth

in one place where we can look at it, and it

sounds like that's just not there.

MR. SMOGOR: Well, I think there's

clear enough, sufficient enough explicit

enough information in what's on the record to

support the interpretations and the

conclusions that we've put on the record.

And I don't know what else to say beyond

that. We believe there is enough

information, we do believe it's explicit

enough to justify the conclusions we made.

And I do understand and appreciate that there

may be opposing perspectives or different

perspectives on that.

MR. ANDES: Okay. Let me move on to

another follow-up question. At the March 10

hearing on Pages 16, 20, 22, and 30, the

morning transcript, Mr. Sulski stated that a

weight of evidence approach was used for

considering factors such as habitat, IBI

scores, aquatic life uses, macroinvertebrate

data and sediment quality in the CAWS.

MS. WILLIAMS: Did you provide a page,

Fred?

MR. ANDES: Pages 16, 20, 22, and 30

of the morning transcript on March 10.

MS. WILLIAMS: So you're not quoting?

You're paraphrasing?

MR. ANDES: I'm summarizing those

statements. The weight of evidence issue was

addressed in several questions. And the

first thing I'd like to try to understand is

what exactly does that mean when you say that

the IEPA used a weight of evidence approach?

MS. WILLIAMS: I'm asking him to

review those pages.

MR. SULSKI: Please repeat your

question.

MR. ANDES: Sure. In the hearing in

those places you stated that a weight of

evidence approach was used for considering a

number of factors on attainment of aquatic

life uses. Can you explain exactly what a

weight of evidence approach is? What

approach you used and how you assess the

various factors.

MR. SULSKI: Okay. We begin with a

set of habitat data and lump on to that our

knowledge of the system in terms of physics

and experience or other systems in the case

of a contractor. We include any IBI data we

have, we include any chemical data we have,

we include the sediment chemistry data, all

the data that we have, and make a

determination on whatever we think the

potential is for that system not looking at

any one of those in particular. But, as

we've said before, it's weighted towards the

habitat conditions. Because we identified,

through the chemical review of the chemistry,

that there are chemical stressors in the

system. And then even with the habitat data,

the QHEI, we look at certain metrics involved

in that habitat assessment, and in our

experience in traveling the waterways, we

look at where those habitat measurements were

made, are they representative of the entire

system, or is this just a little pocket

that's unusual and sort of unique, or does it

represent the whole reach that we're looking

at. And then as far as the sediment, do we

have enough information to evaluate whether

the sediment is a stressor, do we have enough

chemistry to evaluate whether the chemistry

is a stressor, what parameters are falling

below, what our screening factors were. So

all of that combined is a weight of evidence

determination.

MR. ANDES: Is there someplace where

this approach is laid out in terms of how

those factors are considered, what weight is

given to each one?

MR. SULSKI: I can't pinpoint right

now in the reports. I could look. However,

in my experience in reviewing literature and

attending conferences, studies, you know,

common scientific practice to use a weight of

evidence approach when you start evaluating

biological systems.

MR. ANDES: Can you, and I'm aware of

reports in the scientific literature about

the weight of evidence approach. Can you

point us to any particular studies or

documents in the literature that would have

been used in developing this approach?

MR. SULSKI: Well, for example, I

have, you know, a stack of manuscripts and

papers and publications that talk about

sediments, you know. And always when you're

looking at a biological system and the

effects on biological system, there are so

many factors involved in that that you have

to use a weight of evidence approach.

MR. ANDES: But I'm trying to figure

out which weight of evidence approach you

used since there are a lot of different ways

to do it. For example, there's the Pellston

report on sediment quality and assessing

sediment quality of the weight of evidence

approach. Was that report considered in

assessing the factors here?

MR. SULSKI: I can't pin my knowledge

on that particular document, but, you know, I

do know that in looking at biological

systems, you have to evaluate all these

different entities, or let's call them

metrics or parameters, that includes, you

know, biological data, chemistry, and that

sort of thing. Howard did point out to me

that CDM used an approach that's --

MR. ESSIG: If you check out Page 5-7

in the CAWS UAA.

MS. WILLIAMS: Attachment B.

MR. ANDES: Page 5-7.

MR. ESSIG: And it's Figure 5-1. It

goes through the assessment procedure that

Illinois EPA uses when assessing the water

for the Fuel 3D report (inaudible).

MR. ANDES: Okay. But that isn't

necessarily approach you used in determining

biological potential of these --

MR. ESSIG: Not for biological

potential. Biological primarily was based on

more of the habitat laws. All the other data

we used to assess what's basically the

current condition, and that's how we would

assess current conditions in Illinois. It's

based on basically this chart.

MR. ANDES: So does that mean that you

use a weight of evidence approach in

determining the current conditions but not in

determining biological potential?

MR. ESSIG: Correct. Because the

current condition in terms of water

chemistry, let's say, if water chemistry is

poor, that's something that might be able to

be corrected. If you're openly going to look

at the biology occurring in that poor water

quality condition, you'd never improve it.

You'd just set it at what it is and there

would be no change. So the idea is to look

at a system and see is there any potential

there, does the habitat give you any type of

potential that could possibly improve if

other factors were improved.

MR. ANDES: So then a weight of

evidence approach was not used in determining

the new use categories for these water

bodies? I thought the testimony was that it

was used.

MR. SULSKI: That's not true. But

when you say weight of evidence approach,

it's not -- There's no rigid definition. If

you go from one place to another, you will

find, you know, that you have to rely on the

weight of evidence and sometimes they use a

balance as an analogy of that. So in terms

of one specific method that one particular

researcher used, I don't think that that's

what was intended by that word weight of

evidence. The weight of evidence is the

entire package, the entire assessment that we

do.

MR. ANDES: But literature, if I'm, if

I read it correctly, defines a structured way

of considering various factors. It's not

that you just take a bunch of things and lump

them in together and then come out with a

conclusion. It's a structured nonarbitrary

way of assessing a number of factors to which

I know, for example, the Pellston Report is

very clear on. I'm trying to understand how

the Agency -- Did the agency do a structured

assessment? And, if so, I'm trying to

understand the structure, not just that there

were a bunch of things considered, but what

were the factors considered and what was the

specific weight given to each one?

MR. SMOGOR: I agree there are

approaches in the literature that go through

a structured fairly well-defined process.

But there's also literature that talks about

weight of evidence being defined in many

different ways, many different levels of

detail. I think the weight of evidence being

referred to here is in more general terms.

We considered another buzz word from the

literature is multiple lines of evidence.

Multiple lines of evidence were considered,

and there is no quantitative weighting of

those lines of evidence that's part of this

record that I'm aware of. That's part of our

statement of reasons. We look at multiple

lines of evidence, we made interpretations

both on those -- on those multiple lines of

evidence for proposing biological potential,

for proposing aquatic life uses, and I don't

believe that in what's on the record there is

a step-by-step well-detailed or detailed

process that defines them.

MR. ANDES: So if I'm looking for a

structured scientific assessment here of

these various factors, I'm not really going

to find that anywhere?

MR. SMOGOR: You're not going to find

a step-by-step process for how we arrive at

our conclusions. If you want to call that --

if a lack of a step-by-step process is not

structured then based on your definition of

nonstructured, then you can call that

nonstructured.

MR. ANDES: Okay. And the challenge

here obviously is we're trying to figure out

how do we assess it in determining -- and

critique it when there's no structure to it?

MR. SMOGOR: Well, I think there's

some structure to it. It's what you got in

the statement of reasons. And if you believe

that's lacking, I guess that's why we're here

to discuss these things. And I guess I can't

comment much further on that to say I agree

with you, there is no step-by-step detailed

structure about how we went, used all of the

lines of evidence and came to our conclusions

about the aquatic life uses.

MR. ANDES: And --

MR. SULSKI: Could I add to that? In

the UAA process, it's an open process

involving stakeholders. And to a great

extent within that UAA process, the structure

of the analysis was guided by the SAC group

so that when we hit a dead end on habitat,

all agreed that habitat was an important line

that could answer some questions for us, so

important that some money came up to do a

habitat analysis.

MR. ANDES: Did the final proposal

from the Agency match recommendations from

that group? Haven't there been

substantial -- I'm really leery of saying,

well, the group had a consensus. The

Agency's proposal is what we're here for, not

the recommendations of stakeholders earlier.

And the Agency has to stand the fall based on

its record in this rulemaking. So,

particularly, when this rule has changed

substantially since what the stakeholders

discussed, I don't think that's all that

relevant.

MR. ETTINGER: I think we're getting

into a few speeches here, rather than

questions.

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

onto --

MS. WILLIAMS: Can I ask a follow-up

question at this point?

HEARING OFFICER TIPSORD: Sure.

MS. WILLIAMS: Mr. Andes is getting at

whether we followed a specific methodology

from scientific literature. Can any of you

answer whether or not a specific methodology

for analyzing UA factors is laid out in the

Clean Water Act or in the federal regulations

anywhere?

MR. SULSKI: UAA says that a UAA is a

structured scientific analysis. That's it.

MR. SMOGOR: But if you're asking does

the Clean Water Act and associated

regulations provide the steps of that

analysis, I don't believe it does.

MS. WILLIAMS: Thank you. That's all

I have.

MR. ANDES: Another question going

back to the March 10 transcript. On Page 20,

Mr. Essig stated -- if you want to go to that

transcript, that's fine. I'm quoting from

Mr. Essig. The benthic data wasn't utilized

as much as it may have been able to be,

primarily because of the relationship between

the habitat measures, the qualitative habitat

evaluation index, and the fish index of

biointegrity that were developed in Ohio or

more directly related to each other, end

quote. Do you folks have the quote?

MR. ESSIG: Yes.

MR. ANDES: First question. Did IEPA

intend to relate benthic and vertebrate data

in the CAWS to IBI or habitat in the CAWS, or

was a decision to focus on fish and habitat

made based solely on the Ohio data?

MR. ESSIG: The decisions were based

solely on the IBI and QHEI. The

macroinvertebrate data was used to look at a

current condition.

MR. ANDES: Okay. But my question was

why -- it sounds from the testimony like the

reason the benthic data wasn't considered

extensively was because of Ohio data. And

that's what I'm trying to verify is that that

decision to focus away from the benthic was

made based on the Ohio data, not on any

attempt to look at benthic data in the CAWS

and relate that to IBI or habitat.

MR. ESSIG: No, that's not what I

meant by saying that. Basically what I meant

was the CAWS, the index that was used to

assess the macroinvertebrates in the CAWS was

the Illinois EPA macroinvertebrate biotic

index.

HEARING OFFICER TIPSORD: Mr. Essig,

could you face the court reporter.

MR. ESSIG: I'm sorry. That index is

a tolerance-based index primarily based on

dissolved oxygen and the OD ammonia

basically. It gives you a relative idea of

the water quality of the system, but it

doesn't really take into account all of the

factors that may impact the community such as

habitat. And I believe the feeling -- and

even in Ohio they primarily use the IBI even

though they do use macroinvertebrate data,

they collect it and they do have an index for

it, but their methodology reflecting

macroinvertebrates as well as the methodology

that was used in the CAWS is with artificial

substrates which are not -- do not reflect

the natural conditions of a stream. They're

designed primarily to take the differences of

habitat and try to minimize that so that you

can get an idea of what the actual water

quality is like in the absence of differences

of habitat. That's primarily why that's

used. So because this was a limited, if you

will, limited index to one part of the

puzzle, it was not included in the biotic

potential analysis.

MR. ANDES: That seems to conflict

with the testimony from March which you

indicated that the benthic data wasn't

utilized as much as it may have been able to

be primarily because you defined the

relationship between the QHEI and the IBI in

the Ohio data. That's what it said. So

that's a very different reason than what

you're explaining now. I'm trying to

understand why the benthic data wasn't given

much weight here, and it sounds like the

initial explanation was it wasn't given much

weight because in Ohio it didn't seem to be a

big factor. And I'm trying to figure out,

well, have you looked at whether it ought to

have been a big factor here rather than in

Ohio?

MR. ESSIG: Based on the collection

methods and the index used, I would say no,

it really probably couldn't be used more the

way it was interpreted in this report. And

most of from what I'm familiar with from the

literature from Ohio, most of their analysis

regarding habitat and the BIODUg is primarily

done with comparisons of fish and with the

habitat and relationships of those two.

MR. ANDES: So my question then is as

to the CAWS, why did the Agency decide not to

give much weight to benthic data from the

CAWS?

MR. ESSIG: I think I just answered

that. I think I've answered it a couple of

times now. I've explained the sampling

methodology, the limitations of the index,

the fact that that index does not encompass

other environmental factors. I think that

was -- I think that's why the decision was

made to limit it primarily to the biotic

potential analysis, to primarily the IBI and

QHEI.

HEARING OFFICER TIPSORD: Let's go off

the record for a second.

(Off the record.)

MR. ANDES: If the issues of concern

were the sampling methodology and the nature

of the index, did the Agency investigate

whether there might have been a way to

address the sampling issues, develop the

different index, somehow consider the benthic

data? Because after all, it would seem that

benthic data ought to be relevant,

particularly when we have a sediment issue in

the water body, benthic issue data ought to

be relevant in some way, right? So my

question was did the Agency consider other

ways to consider benthic information in the

process that would have allowed it to have

more weight?

MR. ESSIG: As I said, I think the

macroinvertebrate data, the way it is that's

presented in the report and even what's

available that -- other information that

might have been available to utilize with

this data I think would have been more used

to analyze the current condition of the

waterway, not necessarily to determine what

the potential is.

MR. ANDES: But wouldn't that be the

same case as the fish data? And you did

consider fish IBI scores.

MR. ESSIG: To some extent, but it is

primarily -- the main focus was the QHEI.

IBI was looked at in comparison with the

QHEI. The Ed Rankin report, some of their

figures showed the relationships between the

IBI and the QHEI and the habitat metrics in

the QHEI. I'm not aware of relationships

like that that have been done for

macroinvertebrate data.

MR. ANDES: We're going to move on,

unless anybody has any follow-ups, to some

questions about dissolved oxygen. And I'm

going to start with some of the prefiled

questions for Mr. Smogor. And I believe

those are on -- start on Page 26 of our

prefiled questions with Question No. 7. On

Page 4 of your prefiled testimony, you stated

dissolved oxygen standards being proposed for

the CAWS and the lower Des Plaines River are

consistent with the standards already

recommended to the Board by Illinois EPA in a

pending rulemaking R04-25. The first

question is have you taken into account, and

I think the Agency's testimony supports this,

that the CAWS are unique among the waterways

in the state and are not designated as

general use waters as is the case in that

rulemaking?

MR. SMOGOR: Yes. We accounted for

the fact that we're proposing an aquatic life

use different from general use biological

conditions.

MR. ANDES: But proposing the same

standards?

MR. SMOGOR: Yes.

MR. ANDES: Okay. Would you agree

that CAWS --

MR. SMOGOR: Let me back up. We're

proposing -- We're not proposing the same

dissolved oxygen standards for general use as

we have proposed for either of the CAWS

waters. Actually, we're not proposing the

same -- We're not proposing standards that

are the same as general use standards for the

CAWS waterways.

MR. ANDES: So the statement that DO

standards being proposed are consistent with

the standards recommended in that

rulemaking --

MR. SMOGOR: By consistent I didn't

mean identical. I meant they're consistent

with the concepts and the principles on which

the general use standards are based, and

they're also consistent, logically consistent

with what we've set for general use waters.

So that doesn't mean they're identical or

equivalent.

MR. ANDES: Okay. The CAWS is not

capable of supporting a general use

biological community, right?

MR. SMOGOR: Correct.

MR. ANDES: Okay. So please explain

how these standards are consistent with the

methodology and the general use rulemaking

but aren't the same?

MR. SMOGOR: Well, again, I think I

use the term consistent there in greater

context to represent that the standards

proposed for CAWS are based on the same

principles and concepts and thinking that

went into developing the standards for the

general use waters.

MR. ANDES: Even though they're

significantly different types of water

bodies?

MR. SMOGOR: Yes. Because what we're

trying to do when we develop DO standards is

protect aquatic life such that that aquatic

life can achieve the potential that you've

proposed as the use. So the bottom line is

we're protecting aquatic life to a certain

level, and that's a common thread whether

you're setting DO standards for one set of

waters or another set of waters.

MR. ANDES: In proposing the DO

standards or the CAWS and lower Des Plaines,

you account for behavior of the system on wet

weather conditions?

MR. SMOGOR: No, not exclusively.

MR. ANDES: Did you consider and

propose in the standard that it may lead to

propagation and proliferation of less

tolerant species that are currently found in

the CAWS?

MR. ETTINGER: What? What might lead

to propagation of less tolerant species?

MR. ANDES: The proposed standards.

HEARING OFFICER TIPSORD: It's

prefiled Question 7E.

MS. WILLIAMS: Do you mean fewer or do

you mean -- Can you clarify, Mr. Andes,

whether you mean fewer tolerant species or

species that are less tolerant? Do you

understand my question?

MR. ANDES: Species that are less

tolerant.

MR. SMOGOR: So we're -- yes. I think

that's partly the goal.

MR. ANDES: Let me go on to the next

question then. Would you agree that there is

a risk that occasional CSOs, flow stagnation,

higher temperature regimes, and oxygen demand

from resuspended sediments can combine to

very quickly and unpredictably impact these

less tolerant fish populations and negate the

benefits of the initial aeration that will be

required to achieve the standards? And, if

not, why not?

MR. SMOGOR: No. I don't see how

benefits of requiring better DO for aquatic

life in these waters can somehow have a

negative impact on accessible life in these

waters. I just don't see the connection

there. We're trying to create conditions

that are better for aquatic life and we've

hoped that we make it better for less

tolerant organisms that were precluded to

come in and increase the biological condition

of the system.

MR. ANDES: The question is whether

what you're doing is enabling less tolerant

fish populations that are then affected by

all the other conditions in this water -- in

this set of water bodies and basically

knocked out. So you're creating a population

of less tolerant fish species, but there are

a bunch of other conditions that will impact

those species and decimate them.

MR. SMOGOR: Well, when we're

developing standards for a particular

constituent like dissolved oxygen, I believe

our charge is to say define the dissolved

oxygen levels that are going to allow you to

meet your potential. In other words, if the

water is not currently meeting that

potential, create better DO conditions if DO

is a part of equation. Now, if in creating

those standards there are other conditions

that may affect how aquatic life relates to

DO, I don't see how that creates a

justification for not setting DO at the

appropriate levels.

MR. ANDES: And might that not,

though, counsel for a weight of evidence

approach when one looks at all the different

issues in the water body together and tries

to figure out how we can create a better

situation all told not pollutant by

pollutant? It sounds like the DO issue is

going to assess specific to DO, but what

we're asking is has that -- has the Agency

considered that improving that standard when

there are other factors in the water body,

including physical factors, that will impact

that population isn't necessarily -- can be

counter-productive?

MR. SMOGOR: I guess I don't see how

setting the dissolved oxygen conditions that

we proposed can be counter-productive. I

just don't see the logic there.

MR. SULSKI: What's more, these

occasional CSO flow stagnations, higher

temperature regimes were addressed or there

are proposals for addressing them.

MR. ANDES: In the CSOs?

MR. SULSKI: CSO, the District has

proposed and everybody knows that TARP

continues to be constructed.

MR. ANDES: Will there be CSOs after

TARP?

MR. SULSKI: Yes.

HEARING OFFICER TIPSORD: For the

record, we've used TARP several times in the

last couple of days. Let's go ahead and

explain what that is.

MR. SULSKI: TARP is the tunnel and

reservoir program for capturing and treating

combined sewer overflows, discharges.

HEARING OFFICER TIPSORD: Thank you.

I should have had you do it yesterday.

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

question. The CAWS UAA Attachment B states

the water quality improvements like

reaeration will not lead to attainment of

aquatic life uses. And I believe we're

talking about Clean Water Act, aquatic life

uses --

MR. SMOGOR: Excuse me, Mr. Andes.

Can you tell me what question you're on,

please?

HEARING OFFICER TIPSORD: H.

MR. SMOGOR: Thank you. I'm sorry.

MR. ANDES: Because of habitat

limitations. The quote was on Page 5-3 of

the UAA report. Can you clarify how the

proposed criteria will lead to attainment of

the proposed aquatic life uses?

MS. WILLIAMS: Is there a citation to

where it says this?

MR. ANDES: It's on Page 5-3 of the

UAA report.

HEARING OFFICER TIPSORD: Attachment B

to the proposal.

MR. SULSKI: I'm looking to see what

5-3 says exactly. Okay. I've read this text

in factor 4 you're talking about?

MR. ANDES: Yes.

MR. SULSKI: Now could you please

repeat your question.

MR. ANDES: Please clarify how the

proposed DO criteria will lead to attainment

of the proposed aquatic life uses given that

statement.

MR. SULSKI: I think what the

contractor is saying here is that there are

some areas, and he mentions the sanitary ship

canal, where some improvements -- or

improvements may not lead to, as he puts it,

higher aquatic life uses. But we proposed a

lesser use for the sanitary ship canal.

MR. ANDES: For part of it, right?

MR. SULSKI: For aquatic life.

MR. ANDES: Right.

MR. SULSKI: All of it.

MR. ANDES: Right. But parts A,

parts B?

MR. SULSKI: No, it's all B. Sanitary

ship canal is the lowest aquatic life

potential zone.

MR. ANDES: Okay.

HEARING OFFICER TIPSORD: I'm not sure

you answered the question yet. You explained

what your consultant said, but the question

is, okay, based on what your consultant said,

how do you --

MS. WILLIAMS: I think his answer is

that Fred is mischaracterizing what the

consultant said is how I'm understanding

the --

HEARING OFFICER TIPSORD: Then

Mr. Sulski, is that what you're saying?

MR. SULSKI: I guess, as we go back

and forth, I'm still unsure of the question

now. Howard says he may have a better grasp

on it.

MR. ESSIG: The statement that is on

that page, it's in relation to the entire

CAWS. It's including -- I don't think

it's --

MR. ANDES: So not only the canal?

MR. ESSIG: I think what they're

saying here is that there are habitat

limitations, and it specifically mentions the

sanitary ship canal which is a Group B water.

The Group A waters have a slightly higher

potential. He's referring here to what he's

talking about habitat limitations is to the

Group B waters, I think is primarily what

he's talking about.

MR. ANDES: Okay. Well, let me follow

up on that. In envisioning the improved

aquatic community that would result from the

proposed standards, we've talked about some

of the stressors, CSOs, flow stagnation, et

cetera. Does the Agency think that these

issues all need to be completely eliminated

in order for the uses to be achieved?

MR. SULSKI: Yes, for the most part.

MR. ANDES: Okay. Does that mean that

the CSOs need to be completely eliminated or

comply with water quality standards, which I

think would mean complete elimination?

MR. SULSKI: I don't know whether a

complete elimination of CSOs would be

necessary to achieve the standards. We

are -- The goal is to reduce the number of

CSOs from down to roughly two or three a

year.

MR. ANDES: Where -- is that

documented in the UAA report, that goal?

MR. SULSKI: No, not that I know of.

MR. ANDES: Can you tell me where it

came from?

MR. SULSKI: Well, that's a national

goal to begin with. And my knowledge of the

deep tunnel project suggests that CSOs, the

goal is to reduce -- is to follow the federal

goal and reduce CSO frequency to two or three

or four times a year.

MR. ANDES: Can you cite me where in

the federal policy it gives those numbers?

MR. SULSKI: I can look that up for

you and give it to you.

MR. ANDES: Thank you. And any

citation you can provide as to the goal of

TARPing to meet a specific number along those

lines, if you can provide me any --

MR. SULSKI: I can go back to the

office and --

MS. WILLIAMS: Can I please get a

specific so I have it written down, what are

you asking.

MR. ANDES: I'm looking for any

citations, whether in federal policy or TARP

information, that would lead to a specific

number of 2, 3, or 4 CSO events a year as

being a goal here.

MS. WILLIAMS: Thank you.

MR. HARLEY: Madam Hearing Officer?

HEARING OFFICE TIPSORD: Yes,

Mr. Harley.

MR. HARLEY: If you were to remove all

pollutant contributions from CSOs, MS4s, and

urban runoff, would the CAWS waterways still

experience levels of DO that are inconsistent

with the biological potential of the

waterways?

MR. SULSKI: I believe so.

MR. HARLEY: What's the basis of your

answer?

MR. SULSKI: There are some stagnant

reaches, two of them which we've mentioned:

The south fork, the south branch, and the

upper part of the north shore channel which

are stagnant.

MR. HARLEY: A follow-up. If you were

to remove all pollutant contributions from

CSOs, MS4s, and urban runoff, would the CAWS

waterways still experience levels of

temperature that are inconsistent with the

biological potential of the waterways?

MR. TWAIT: I believe, yes.

MR. HARLEY: And what is the basis of

your answer?

MR. TWAIT: Heated effluence going

into the stream.

MR. HARLEY: One more follow-up. If

you were to remove all pollutant

contributions from CSOs, MS4s, and urban

runoff, would the CAWS waterways still

experience levels of pathogens that are

inconsistent with the recreational potential

of the waterways?

MR. TWAIT: Yes.

MR. HARLEY: What is the basis of your

answer?

MR. TWAIT: Undisinfected wastewater

going into the stream.

MR. HARLEY: Thank you.

HEARING OFFICER TIPSORD:

Mr. Ettinger?

MR. ETTINGER: Are the waterways we're

talking about here the only ones that have

CSOs in the State of Illinois?

MR. TWAIT: No.

MR. ETTINGER: There are CSOs going to

the Fox River; is that correct?

MR. TWAIT: I believe so.

MR. ETTINGER: Are general use

standards applicable to a number of other

waters across the State of Illinois that have

some CSO events?

MR. TWAIT: Yes.

MR. HARLEY: Thank you.

MR. ANDES: Does any other water body

have 3,000 CSO events per year?

MR. SULSKI: I don't know.

MR. ETTINGER: Is the Mississippi

River designated general use?

MR. ESSIG: The Illinois portion, yes.

MR. ETTINGER: Is the Illinois River

designated general use?

MR. ESSIG: Yes.

MR. ETTINGER: Thank you.

MR. ANDES: Do CSOs affect attainment

of DO standards?

MR. SULSKI: It depends on the

frequency, duration, concentration of

material in the CSO.

MR. ANDES: Yesterday it was testified

that during CSO events the DO dropped to zero

in this system, correct?

MR. SULSKI: That's correct.

MR. ANDES: So is it logical to say

that in order to meet -- Has the Agency

assessed what it would take in terms of

eliminating CSOs, MS4s, and nonpoint runoff

in order to meet these DO standards?

MS. WILLIAMS: I missed that. Can you

repeat that?

MR. ANDES: Has the Agency assessed

what it would take in terms of reducing and

eliminating CSOs, MS4 discharges, and

nonrunoff in order to meet these DO

standards?

MR. SULSKI: The assessment that was

done in the UAAs was that we looked at wet

and dry weather conditions and water quality

in general during those conditions.

MR. ANDES: That's not --

MR. SULSKI: And -- did we do -- We

did an assessment of the conditions that

exist today. And with knowledge of what's to

happen in the future, it was our belief that

if we removed these stressors we could come

closer to attaining the goals and proposed

uses.

MR. ANDES: So, in other words, we

would need to remove all dischargers during

wet weather from the CSOs, MS4s, and nonpoint

runoff?

MR. SULSKI: I didn't say that.

MR. ANDES: Then what? What would we

need to do in terms of reducing or

eliminating all of those discharges to meet

these standards?

MR. SULSKI: For now all I can tell

you is that we need to knock the CSOs down,

we need to have supplemental aeration, and we

need to improve flow in some reaches of the

waterway.

MR. ANDES: And in terms of knocking

the CSOs down, can you give me more detail

about what that means? How many of the

thousands of discharges that are per year

CSOs, what would that need to be reduced to

in order to meet these standards?

MR. SULSKI: The presumptive approach

in the CSO guidance, CSO policy, is that if

you knock it down to three or four generally

you have solved the problems associated with

CSO, but it doesn't stop there. It says that

you will still have to do water quality

assessments afterwards to make sure that that

has taken care of the problem. If it hasn't,

you have to go further.

MR. ANDES: Okay. And but technically

the CSO policy and the presumptive approach,

which can be used, isn't really relevant to

this rulemaking. The question is, my

question was, has the Agency assessed what

would be needed in terms of taking away the

CSO discharges, the MS4 discharges, and other

nonpoint runoff in order to attain these

standards on a continuous basis?

MR. SULSKI: We haven't done a full

assessment of what will -- what might be

expected when TARP was done.

MR. ANDES: So the answer is no?

MR. SULSKI: Correct.

MR. ANDES: Thank you.

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: Miss Williams --

MS. WILLIAMS: Are you asking me a

question?

MR. HARLEY: In the legal opinion of

the Illinois Environmental Protection Agency,

does it have to regulate every source of a

pollutant in order to regulate any individual

source of pollutant?

MS. WILLIAMS: I don't think so. Does

that sound like a legal opinion?

MR. HARLEY: In the legal opinion of

the Illinois EPA, in order to regulate any

individual source category of a pollutant,

does the Agency have to regulate every source

category of that pollutant?

MS. WILLIAMS: I believe the answer is

no.

MR. HARLEY: So it would be possible

for the Agency to regulate publically on

treatment works, but not to regulate equally

CSOs even though they may be discharging the

same pollutants from time to time; is that

correct?

MS. WILLIAMS: The answer is yes,

except the question was saying the Agency

regulate. It would be the Board's

regulations that I would be --

MR. HARLEY: I accept your correction.

Thank you.

MR. ANDES: Let me follow up with

that. Does the DO standard regulate only

POTWs and not CSOs and not MS4s?

MS. WILLIAMS: He was not asking about

water quality standards specific. Water

quality standards don't apply --

MR. ANDES: I am.

MS. WILLIAMS: -- to sources

specifically. They apply to the industry.

MR. HARLEY: I would like to follow

up. Is there a regulatory regime for CSOs?

MS. WILLIAMS: Yes.

MR. HARLEY: Is there a regulatory

regime for MS4s?

MS. WILLIAMS: Yes.

MR. HARLEY: Is urban runoff

potentially or actually subject to best

management practice regulations that

originate from Section 319 of the Clean Water

Act?

MS. WILLIAMS: I would have to look at

the section reference, but repeat the

question.

MR. HARLEY: Are urban runoff sources

potentially subject or actually subject to

best management practice regulations under

the Clean Water Act?

MR. SULSKI: Yes.

MR. ANDES: Really? Can you provide

me with citation for binding regulations as

to nonpoint sources?

MR. HARLEY: Potential.

MR. ETTINGER: He said urban runoff,

urban runoff.

HEARING OFFICER TIPSORD: You know

what, and I appreciate wanting to ask legal

opinions, but we're not going to ask them

what specifically Section 319 says. 319

speaks for itself, and we can look at 319.

And this is argument, not necessarily

questions getting us forward. Mr. Ettinger,

did you have something?

MR. ETTINGER: I have biological

questions.

HEARING OFFICER TIPSORD: Then I would

appreciate a biological question. Thank you.

MR. ETTINGER: Here is a toughy. Do

fish need oxygen to breath?

MR. SMOGOR: Yes.

MR. ETTINGER: Okay. Mr. Andes and

you have pointed out that at times after CSO

events, the oxygen level reaches zero; is

that correct?

MR. SULSKI: Yes.

MR. HARLEY: Do all the fish die in

the CAWS every time this happens?

MR. SULSKI: Not every time.

MR. ETTINGER: Not every time. Thank

you. So some of the fish somehow find a

place where they can breath; is that correct?

MR. SULSKI: Some of the times.

MR. ETTINGER: Some of the times. If

we corrected some of the CSOs that make it

easier for the fish to find a place to

breathe some of the time, would you expect to

have more fish?

MR. ESSIG: Yes.

MR. ETTINGER: Thank you.

MS. WILLIAMS: Can I at this point --

HEARING OFFICER TIPSORD: Revisit your

answer?

MS. WILLIAMS: No, no, no, no. I

don't have to answer any more questions.

That's fine. I would like to -- We were

asked last time about fish kills. The word

fish dying came up, so maybe I see an opening

to enter an exhibit that we were asked to

provide.

HEARING OFFICER TIPSORD: Wonderful.

MS. WILLIAMS: I'm handing you a

package of documents that begins with a

letter on Metropolitan Water Reclamation

District of Chicago letterhead dated August

18, 2006. Can you identify these documents

for us?

MR. SULSKI: These are fish kill

reports, some including investigation reports

and additional data regarding dissolved

oxygen that the District provided to us and

provided to some extent to the contractor as

a part of the UAA process. There was a --

MS. WILLIAMS: At this time I'd like

to move that these fish kill reports that we

were asked for be entered as an exhibit.

HEARING OFFICER TIPSORD: Okay. Let

me first check that I have nine separate

documents. Is that correct?

MS. WILLIAMS: Correct.

HEARING OFFICER TIPSORD: There's no

objection, we'll enter this as Exhibit 47.

Seeing none, it's Exhibit 47. And that is

the nine documents.

MS. WILLIAMS: And I guess I'd like to

ask him one clarifying question about the

documents so that we can make sure the record

is clear. You were asked for any reports, I

think, on fish kills in these waters that

were in the Agency's possession. Can you

tell us if you know whether or not this is a

complete, all the information that may exist

on all fish kills in these waters?

MR. SULSKI: This would not be an

exhaustive report on all fish kills.

MS. WILLIAMS: Why not?

MR. SULSKI: Because fish kills occur

throughout the waterways, and people don't

report them.

MS. WILLIAMS: But do they include

everything that's in your knowledge and

possession related to fish kills in these

waters?

MR. SULSKI: In terms of reports, yes.

MS. WILLIAMS: Sorry for the

diversion.

HEARING OFFICER TIPSORD: And I think

we're ready then to go back with Mr. Andes.

MR. ANDES: Further follow-up

questions on DO. Would the proposed standard

have to be met 100 percent of the time for

the water body to be in compliance?

MR. ESSIG: No. We generally consider

it's in compliance if less than 10 percent of

the values are below -- are below the

standard.

MR. ANDES: And is that a policy? Is

that in the water quality standard?

MR. ESSIG: No, it's not.

MR. ANDES: Okay. And when we're

talking about 90 percent or 100 percent, the

standard needs to be met in dry and wet

weather conditions, correct?

MR. ESSIG: Correct.

MR. ANDES: Okay. As to dry weather,

are the existing DO standards currently being

met and to what extent?

MR. ESSIG: In which waterway?

MR. ANDES: Let's look at the CAWS.

MR. ESSIG: I'm aware there are some

segments that are not meeting the current

secondary contact in the division of aquatic

life standard, but I am not sure which

segments those are.

MR. ANDES: Okay. And same question

as to wet weather. Are areas of the CAWS

generally meeting the existing DO standards

during wet weather events?

MR. ESSIG: I couldn't say.

MR. ANDES: Is that because the Agency

hasn't looked at the total data to determine

when it's dry and when it's wet?

MR. ESSIG: Yes.

MR. ANDES: Okay. But it would be

logical to assume, based on testimony

yesterday, that during wet weather events

often the existing standards are not being

met since the DO level of zero would not be

in compliance.

MR. ESSIG: Yes.

MR. ANDES: Okay. And these new

standards would be, certainly as to specific

areas of the CAWS, more stringent than the

current standards, correct?

MR. ESSIG: Correct, at times.

MR. SMOGOR: I don't -- I don't know

if you can make such a direct comparison

because the proposed standards are in a

different form. They use different

statistics that aren't analogous to the

existing standard. The existing standard

right now I think is just a do not ever go

below value X. And the proposed standards

include that threshold which is a daily

minimum as well as additional statistics that

account for what we call chronic conditions,

not just the acute DO conditions.

MR. ANDES: The bottom line --

MS. WILLIAMS: He used value X. I

think we'd be clearer for the record if he

said for the record what the values are of

the current standard.

MR. SULSKI: I'm sorry. The current

standard, I think, help me out, please, for

the Cal-Sag Channel? I believe it's

3 milligrams per liter, and for the remainder

of the secondary contact and indigenous

aquatic life waters I believe it's four

milligrams per liter.

MR. ETTINGER: Can I just clarify?

Part of the area referring to as the CAWS is

now designated general use. Is that not

correct?

MR. SULSKI: That is correct.

MR. ETTINGER: So, in fact, as to

those areas, this is weakening the dissolved

oxygen standard?

MR. SMOGOR: Yes. It's -- well,

again --

MR. ETTINGER: Loosening the --

MR. SMOGOR: Just that single

component. If that -- the component that

currently says for general use do not go

below five milligrams per liter, that

analogous statistic in the standards that we

are proposing is a lower value.

MR. ANDES: The bottom line, isn't it

going to be more difficult to achieve

compliance under the proposed standards?

There are control measures that you believe

will be required in order to meet the new

proposed standards.

MR. SMOGOR: I guess I don't know what

you mean by more difficult. More difficult

from a -- Can you explain more difficult?

MR. ANDES: There are measures that

will have to be taken that the Agency has

been looking at and will go into further

detail about those in order to meet the new

proposed standards, correct?

MR. SULSKI: Correct.

MR. ANDES: Okay. Now, in terms of

the proposed standards, once they're adopted,

they will apply in terms of measuring

attainment of these water bodies, correct?

MR. ESSIG: Correct.

MR. ANDES: I believe the Agency has

discussed the fact that TARP reservoirs we

put on-line over the next 15 to 20 years.

Has the Agency considered that fact in

assessing whether standards ought to be

adopted with an immediate attainment date?

MR. TWAIT: No. I don't think the

Agency took attainment into account.

MR. ANDES: I believe there's a

technical memorandum that the District

submitted to the IEPA in the stakeholder

process regarding capture and treatment of

CSOs, although I'm not sure that's in the

record here. Do you know if that document

has been reviewed and is part of the record?

MS. WILLIAMS: Can you repeat the

document?

MR. ANDES: I believe it's technical

memorandum 3WQ submitted by the district

about capture and treatment of CSOs.

MS. WILLIAMS: I see 1WQ, 4WQ, 5WQ and

6WQ. I don't believe I see 3 as one of the

attachments to the proposal.

MR. ANDES: Okay. Does anyone from

the Agency recall reviewing that document?

MR. SULSKI: I don't recall.

MR. ANDES: If it's in the Agency's

possession, we'd like it to be made part of

the record. If not, we can submit it.

MR. SULSKI: Did you see if it's

included in the CAWS UAA report?

MR. ANDES: I don't believe it is.

MR. SULSKI: I was just wondering if

the contractor, if it was provided to the

contractor.

MS. WILLIAMS: I don't dispute that we

have this document. But since it was

prepared I'm not sure -- but since it was

prepared and created by the District it would

seem easier to me for them to submit it.

MR. ANDES: We can do that.

Has the Agency looked at

whether it would be possible to meet the DO

standards in the CAWS prior to the TARP

reservoirs being totally completed?

MR. SMOGOR: The proposed standard? I

don't think we've made any analyses to that

effect.

MR. ANDES: Or after TARP is completed

either?

MR. SULSKI: We haven't made that

analysis.

MR. ANDES: Is the Agency aware of

various states and EPA -- various state

policies and EPA policies concerning possible

wet weather standards?

MS. WILLIAMS: For what?

MR. ANDES: Wet weather standards

which, and I'll provide an example in

Indiana, but I know there's also EPA policy

that concern whether during and shortly after

wet weather events certain criteria would not

apply during which time other perhaps

narrative standards would be in effect?

MR. TWAIT: I believe the Indiana

criteria that you're talking about is for

bacteria. And if so, then, yes, I would be

aware of that.

MR. ANDES: Okay.

MS. WILLIAMS: Can I ask a follow-up

at this point?

HEARING OFFICER TIPSORD: Sure.

MS. WILLIAMS: Is anyone aware of any

U.S. EPA guidance or any other states that

have done any other wet weather criteria

other than for bacteria?

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

MR. ANDES: Is there any reason one

could not do a wet weather standard for a

pollutant other than bacteria?

MR. ETTINGER: What do you mean any

reason? Legal reason, biological reason?

MR. ANDES: A legal reason.

MS. WILLIAMS: It would depend on --

legally I guess it would depend on the impact

to the use. And there could be. There could

be.

MR. ANDES: Okay. Thank you. We'd be

glad to provide the EPA guidance on how wet

weather standards can be developed. If we

provide that is the Agency willing to

consider a wet weather standard as part of

this proceeding, in particular right now for

DO?

MS. WILLIAMS: Does that have a title

or a number, a citation or a title?

MR. ANDES: It does, and I'd be glad

to provide it. There are actually several

documents I think we can provide.

MS. WILLIAMS: Well, I don't think I

want to answer whether we'd look at something

until we know what it is. I mean in theory

we'd look at anything, but --

MR. ANDES: Is the Agency willing to

consider developing a wet weather standard as

part of this proceeding to address impacts

of, for example, CSOs?

MR. SULSKI: We don't know. We'd have

to look at the document and see what the --

what hoops you have to jump through.

MR. ANDES: Because isn't the other

option to require complete compliance with

water quality standards by the CSOs? If we

don't change the standard and address the wet

weather issue then aren't we requiring 100

percent compliance with the standard for CSO

discharges?

MR. ETTINGER: Well, not every CSO

causes a violation of the water quality

standards. Is that what you're saying?

MR. ANDES: Really?

MS. WILLIAMS: Is there a question

pending?

HEARING OFFICER TIPSORD: Yes, there

is.

MR. ANDES: Please read it back.

(Record read back.)

MR. TWAIT: I'm not quite sure I

understand the question, but I think the

response to that would be that the water

quality standard would apply.

MR. ANDES: Okay. I'll move on from

there.

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: Two follow-ups: I would

like to call the panel's attention to dry

weather periods. You testified that there

are currently exceedances of the secondary

contact DO standards during dry weather

periods in some portions of the CAWS; is that

correct?

MR. SULSKI: Correct.

MR. HARLEY: Is it accurate that

pollutant loading from CSOs, MS4s, and urban

runoff are less during dry weather periods

than during wet weather periods?

MR. SULSKI: Yes.

MR. HARLEY: In your opinion, why are

there DO exceedances during dry weather

periods?

MR. SULSKI: Exceedances of DO

standards?

MR. HARLEY: Yes.

MR. SULSKI: We identified two

reaches: The south fork of the south branch

and the upper north shore channel that are

stagnant, and so they don't have much

throughput following storm events or in very

hot weather that dissolved oxygen sags in

those reaches.

MR. HARLEY: I also wanted to ask one

follow-up question to Mr. Ettinger's question

about general use waters presently

designated. What are the general use waters

presently designated?

HEARING OFFICER TIPSORD: In the CAWS?

MR. HARLEY: No. Under the existing

regulatory standards.

MS. WILLIAMS: Well --

MR. HARLEY: Within the CAWS region.

I'm sorry.

HEARING OFFICER TIPSORD: I was going

to say, I didn't think you wanted to list all

of them.

MR. HARLEY: I don't know if there was

a CAWS before the present regulatory.

MR. SULSKI: North shore channel above

the north side water reclamation plant, the

Chicago River, and the Calumet River from the

O'Brien loch northward to Lake Michigan.

MR. HARLEY: Thank you.

HEARING OFFICER TIPSORD: Mr. Andes?

MR. ANDES: Let me follow up first as

to the south fork and the south branch of the

Chicago River. And I believe this is in the

record. Well, we're not sure if -- There's a

technical memorandum, another one, that we

submitted, the District submitted, and I

think that was technical memorandum 6WQ.

MS. WILLIAMS: That's in the record.

Let me just reference it. Attachment QQ.

MR. ANDES: And that report which

concerns supplemental aeration of the south

fork of the south branch also known as Bubbly

Creek. My first question is has the Agency

reviewed that report in terms of the

engineering controls that would be needed to

meet the proposed DO standards?

MR. SULSKI: I know that I read it. I

don't know through in and throughout.

MR. ANDES: And in terms of the cost

detailed in that report, there are three

supplemental aeration stations at an

estimated capital cost of 60 to 100 million

to address this 1.3 mile length segment. Has

the Agency assessed whether that cost is

economically reasonable?

MR. SULSKI: Just that it's

technically feasible.

MR. ANDES: Thank you. Has the Agency

measured or is the Agency aware of any other

agency measurements of the sediment oxygen

demand at Bubbly Creek?

MR. SULSKI: No.

MR. ANDES: As I understand it,

according to the Attachment B, it appears no

fish or habitat data were considered for

Bubbly Creek, at least from the tables. If

that's the case, can you explain to me how

the creek was classified in terms of an

aquatic use? Does it have any IBI?

MR. SULSKI: Did they say that there

was no data?

MR. ANDES: On Page 5-9 in Figure 5-Q,

it doesn't seem to have any IBI or QHEI

scores for stations on Bubbly Creek. So

we're trying to understand what data were

considered in classifying the segment.

MR. SULSKI: If there's no data QHEIs

or IBIs, it was classified because of its

similar appearance and similar looks to the

Sanitary Ship Canal.

MR. ANDES: Can you --

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

fish data if it's not in this report.

MR. ANDES: Is Bubbly Creek similar to

the Ship Canal in terms of depth, for

example?

MR. SULSKI: No. It's shallower.

MR. ANDES: Okay. Can you point us to

any place in UAA report or any other

documents in the record where the conditions

of Bubbly Creek had been assessed with regard

to classification into a category?

MR. SULSKI: As I'm looking from what

I can recollect, before I look, the

contractor lumped it in with in general a

description with the condition banks, et

cetera, that the Sanitary Ship Canal has and

the south fork has.

MR. ANDES: Okay. And I guess we're

questioning that. We're wondering why one

would think Bubbly Creek would be similar to

the Ship Canal, particularly for aquatic

purposes? So I'm looking for the

documentation of that given significant

differences that are fairly obvious.

MR. SULSKI: Well, on Page 444, the

contractor describes it as consisting of

vertical docked walls with an average width

and depth of 200 to 250 feet -- I'm sorry --

that's the -- that's the south fork. Channel

consists of steeply sloped earthen or rock,

and several locations have vertical dock

walls as an average width and depth of --

width of 100 to 200 feet, depth of 3 to 13

feet, respectively the channels riparian land

uses dominated by industrial and commercial

uses upscale single-family home development

is being constructed. Its current

designation is secondary contact.

MR. ANDES: I'm trying to understand

how it's similar to the Sanitary and Ship

Canal especially given that the depth is

substantially different.

MR. SULSKI: Well, they classified the

depth as 3 to 13 feet. They go to the south

branch and they classify it as 15 to 20 feet

deep, so there's a disparity in depth. But

otherwise the general conditions of the water

body are similar to the south fork.

MR. ANDES: How about the --

MR. SULSKI: It's a little narrower.

Well, the stream velocity is something that

we dealt with stagnant, you know, and we

recognize that, and that was --

MR. ANDES: But the question then is

given the stagnant nature, does that affect

whether it is even feasible to attain the

same use as the Sanitary and Ship Canal?

MR. SULSKI: Well, that was one of the

stressors that we identified in the UAA, and

that's why the south fork was -- It was

suggested that flow augmentation and

supplemental aeration should be, you know,

were the depth reach was a good candidate for

those stressor removers.

MR. ANDES: And was there an

assessment of the extent to which that will

lead to a certain type of population in

Bubbly Creek by taking those measures, that

they will have the same type of population

as, say, the Sanitary and Ship Canal or other

similarly-classified waters?

MR. SULSKI: It was basically level

the playing field for the south fork so it

had similar flow regimes and could maintain

similar water quality as those other systems

as those nearby reaches.

MR. ANDES: Did you consider as well

the pumping stations?

MR. SULSKI: Which pumping stations?

MR. ANDES: The RAPS.

MR. SULSKI: RAPS?

MR. POLL: Racine Avenue Pumping

Station.

MR. SULSKI: We do know the Racine

Avenue Pumping Station was there, and that

was common knowledge among the stakeholders.

MR. POLLS: Did you consider the

impact, the impact of that station when it

pumps?

MR. SULSKI: The impact of that

station, we have -- There was some analysis

done contained in the UAA report on what

happens to the dissolved oxygen in the south

fork and in the south branch and the Sanitary

and Ship Canal after a storm event related

discharge from the Racine Avenue Pump

Station. Basically the DO just bottoms out.

MR. ANDES: Okay. And does the Agency

think that the supplemental aeration will

bring that back into compliance with the

standards during those events when Racine

Avenue is pumping?

MR. SULSKI: I don't know about during

those events when the Racine Avenue Station

is pumping. It pumps infrequently.

MR. ANDES: I'm going to go back to

our prefiled questions, and Question I. The

UAA Attachment B stated that the CAWS is

functionally similar to the Cuyahoga River

Ship Canal in Ohio, yet the IEPA proposed DO

criteria are much more restrictive within the

CAWS than those assigned to the Cuyahoga

River.

MS. WILLIAMS: I think that's

testimony. I don't think that's in the

record anywhere.

HEARING OFFICER TIPSORD: Page 5A.

MS. WILLIAMS: No, no. The second

sentence.

MR. ANDES: Is the Agency aware of

what the DO criteria are on the Cuyahoga Ship

Canal?

MR. SULSKI: No.

MR. ANDES: Okay. So the Agency

hasn't assessed whether its DO criteria here

are more or less restrictive than the ones on

the Cuyahoga?

MR. SMOGOR: No.

MR. ANDES: Further testimony on that

issue can be provided later.

In determining the DO standard,

did you consider the DO model results

previously done by the district and the fact

that additional modeling will be conducted,

is being conducted, to evaluate integrated

strategies for DO compliance? And if not,

why not?

MR. SULSKI: Which model results are

you talking about?

MR. ANDES: Modeling conducted as part

of the integrated strategy process. Is the

Agency not familiar with the DO modeling

results provided by the District?

MR. SULSKI: When and where? There

are a number of DO modelings that have been

done.

MR. ANDES: Marquette University,

duflow model.

MS. WILLIAMS: What did you say? I

can't hear you.

MR. ANDES: Marquette University work,

the duflow model. I believe the report

prepared by Dr. Melching for the District.

MR. SULSKI: Is it --

MR. ANDES: We believe the Agency has

it.

MR. SULSKI: I don't know whether I've

read the report. I know Dr. Melching, I know

of modeling that's going on. I don't know

which modeling Dr. Melching is involved in.

MR. ANDES: Okay. So can we find out

if the Agency has that report, and, if so,

whether it has considered it? Although it

sounds like probably not, considered it in

controlling the DO standard.

MS. WILLIAMS: If you'd like him to

check and see if it's cited in the UAA, we

can.

MR. SULSKI: There were two reports

submitted by the district during the UAA

process which we have as attachments here.

If you can tell me whether this Melching

duflow model is in there, then I can tell you

that I read it. There's two reports: 4WQ

technical memorandums and 5WQ. One is

supplemental aeration and another one is

augmentation of flow augmentation.

MS. WILLIAMS: These are OO and PP.

MR. ANDES: Aren't those the reports

on cost? Those are the narrative reports,

aren't they?

MR. SULSKI: They're just on costs. I

don't know whether I read the Melching

report. I know that I attended some seminars

by the District, but.

MR. ANDES: All right. So the

question we'd like to find out what DO

model's information provided by the District

is in the record and has been considered by

the Agency.

MS. WILLIAMS: Can I ask the first

question? Are you saying that this model

that you cited is the District saying that

they did provide it to the Agency?

MR. ANDES: Yes. We believe -- There

is information we have provided to the Agency

which we believe shows complexities on the DO

issue that we're trying to understand whether

those were considered by the Agency

developing the standards.

MS. WILLIAMS: Do you know

approximately when that would have been

submitted?

MR. ANDES: About a year ago.

HEARING OFFICER TIPSORD: And, just

for the record, since we're talking about

this report, I assume someone is going to

submit it to the record?

MR. ANDES: One way or another.

HEARING OFFICER TIPSORD: Thank you.

MR. ANDES: I'm informed it may have

been part of a quarterly report to the Agency

regarding the UAA process.

The next question, and I'll

try to not offer any testimony. I'll skip to

the question directly. Did IEPA consider the

seasonally stagnant thermally stratified

conditions known to occur within the CAWS as

they relate to appropriate posed DO criteria?

MR. SULSKI: We know that they exist,

those conditions.

MR. ANDES: And were they considered

in developing the criteria for DO?

HEARING OFFICER TIPSORD: Question K.

MR. SMOGOR: Thanks. Is there

anywhere you can point to to help us? We're

not -- I guess we're not convinced that there

is thermal stratification conditions, but

we're not aware of the information that would

show that. Is there anywhere that you can

point to on the record that would show that?

MR. ANDES: We can certainly look at

that and provide any relevant information.

How about the seasonally stagnant part?

MR. SMOGOR: Given that we've proposed

an aquatic life use that we believe is

consistent with what we're calling the

irreversible impacts to the system, to that

extent I believe it's been considered.

MR. ANDES: And how? How has it been

considered?

MR. SMOGOR: Well, if those are -- If

what's called, quote, seasonally stagnant,

unquote, conditions are the result of the

irreversible -- the level of irreversible

human impact that has occurred in those

systems, then we are setting our aquatic life

goal consistent with that; in fact, in

effect, allowing for that. And then the

standards that we've proposed are set to

attain the proposed aquatic life goal. So

we've lowered our goal somewhat in terms of

aquatic life from the Clean Water Act aquatic

life goal.

MR. ANDES: And you specifically

considered the seasonally stagnant aspect as

part of that?

MR. SMOGOR: I don't know how -- if it

was specifically considered, but if that

seasonally stagnant aspect is part of what

we've considered the overall level of human

impact or results from the overall level of

irreversible human impact, then it is kind of

built into the proposed aquatic life use.

MR. SULSKI: What seasonally stagnant

do you refer to? What do you mean by that?

MR. ANDES: I'm not sure we need to

offer evidence on that at this point. I

think I'll take the answer and we'll move on

from there. We can offer evidence on that at

a later point.

The next question is whether

the Agency has considered the effect of

stratification and bidirectional flow on low

DO in developing the criteria?

MR. SMOGOR: Again, my point about

stratification relates here, as it did to the

prior question. And, again, if those are

situations that are a part of what we're --

what would be considered the irreversible

level of human impact, then indirectly

they're accounted for in proposing the use

that is lesser than the Clean Water Act

aquatic life use.

MR. ANDES: So it appears these issues

may not have been specifically addressed, but

you, the Agency's thought is that they may

have been addressed as part of the overall

assessment of the conditions of the water

bodies?

MR. SMOGOR: I think that's

appropriate, at least from the CAWS UAA, yes.

MR. ANDES: Which was based primarily

for aquatic, not habitat, correct?

MR. SULSKI: Correct.

MR. ANDES: Thank you. I think the

next question has been asked and answered and

the one after that.

The next question I had again

with the prefiled testimony was on Page 4,

Paragraph 1, and I think we're still on

Mr. Smogor's testimony --

HEARING OFFICER TIPSORD: Before you

start the next, that's Question No. 8, before

you start that, let's take a 15-minute break.

(Short break taken.)

HEARING OFFICER TIPSORD: I think

we're ready to begin with Mr. Andes'

Question 8.

MR. ANDES: This question is, I

believe, for Mr. Smogor. On Page 4,

Paragraph 1 of your prefiled testimony, you

state the dissolved oxygen standards be

proposed by the Illinois EPA are based

primarily on criteria and corresponding

justification and US EPA's national criteria

document published in 1986. Illinois EPA

used this document as a foundation from which

to interpret and incorporate more recent

information specifically applicable to the

dissolved oxygen needs of aquatic life in

Illinois waters. My question there is, what

was the more recent information that was used

in establishing the DO standards?

MR. SMOGOR: The term, quote, recent

information, unquote, in this case was

intended to mean the concepts and the

principles presented in the technical support

document that Illinois EPA and Illinois DNR

submitted for the most recent rulemaking for

dissolved oxygen in general use waters.

MR. ANDES: Okay. And can you explain

how that modified the Agency's conclusions

starting with the EPA criteria document as a

foundation? Did that change your conclusions

that you would have reached in using the EPA

criteria document?

MR. SMOGOR: No, no. Our -- the

technical support document that I just

referenced is the process and the thinking

that we use to come up with the dissolved

oxygen standards for the general use waters,

and that technical support document relied

heavily upon the U.S. EPA 1986 national

criteria document.

MR. ANDES: So I'm trying to figure

out what it added.

MR. SMOGOR: What it added. What I'm

referring to here in terms of recent

information, it added a process for

interpreting that information from the 1986

U.S. EPA National Criteria Document which I

believe is on the record Attachment X. And

it provided how we use that information as a

foundation, and we used more recent

information which is also referenced in that

technical support document, more recent

information to address what are the dissolved

oxygen needs of Illinois aquatic life.

MR. ANDES: Okay. And what

specifically -- what's that Illinois specific

information?

MR. SMOGOR: There is Illinois

specific information provided in that

technical support document, for instance,

lists of species that were determined to be

more dissolved oxygen sensitive than others,

fishes and macroinvertebrate species, for

example. And the technical support document

included a process, kind of our thinking for

how we arrived at the dissolved oxygen

standards that we recommended for general use

waters. That same thinking, that same logic,

those same principles and concepts which were

based on the U.S. EPA 1986 criteria document

were used in the process for this rulemaking

as well.

MR. ANDES: And you used the Illinois

specific list of species from the technical

support document in developing the CAWS DO

standards?

MR. SMOGOR: No, no, not directly, not

directly. But that was just an example of

information that was Illinois specific that

was in that technical support document.

MR. ANDES: Was there any other

Illinois specific information technical

support document that you then used in

developing the DO standards for the CAWS?

MR. SMOGOR: Not in terms of direct

data or lists, but, like I said, that

technical support document pretty much

defines the thought processes and the

justifications for proposing dissolved oxygen

levels at the -- for our proposed levels of

dissolved oxygen that will protect aquatic

life.

MR. ANDES: No additional data or

other information beyond that process from

the technical support document that was used

in this rulemaking?

MR. SMOGOR: Not in terms of specific

data, no.

MR. ANDES: On Page 5, Paragraph 3 of

your prefiled testimony, you state for the

CAWS Aquatic Life Use A waters, Illinois EPA

proposes dissolved oxygen standard similar to

those for the Upper Dresden Island Pool, but

designed to protect for less optimal fish

growth that is consistent with the proposed

aquatic life use designation. Can you define

less optimal fish growth?

MR. SMOGOR: That terminology was

intended to represent fish growth rates that

are less than those required to attain Clean

Water Act aquatic life goal. To attain

aquatic life use that we propose for CAWS A,

CAWS A waters do not require the same

long-term dissolved oxygen conditions that

would be required in waters with a higher

biological potential reflecting the Clean

Water Act goal.

MR. ANDES: The question is not what

the standards are, the question is how do you

define optimal versus less optimal? How can

we envision those two situations for a fish

community?

MR. SMOGOR: Again, it was just use in

the a relative sense. We realized that

optimal, another way of defining optimal, at

least in this context, would be at a level

that -- at a level that allows you to achieve

the clean water aquatic life goal.

MR. ANDES: That's sort of circular.

I'm asking you how do you define it with

reference to the data. How do you look at

two fish communities and say this one is

optimal in terms of growth and this one is

less optimal? What are the metrics you would

use to define that?

MR. SMOGOR: We didn't look

specifically at fish growth data, so I'm only

using those terms in a very general sense

here.

MR. ANDES: If you didn't look at fish

growth data, how could you make a distinction

between a water body where the standard is

designed to protect for optimal versus less

optimal fish growth?

MR. SMOGOR: We're talking about

levels that are -- and maybe this will help.

These levels are defined for levels of fish

growth in qualitative terms with a little bit

of quantitative backing are provided in the

U.S. EPA 1986 national criteria document,

Attachment X. These various levels are

addressed, and that's what we're basing this

information on. We're basing it on levels of

fish growth that are required to attain the

Clean Water Act goal and then knocking it

down from there saying, well, if you need

this amount of fish growth, an optimal amount

will --

MR. ANDES: Give me numbers. What --

MR. SMOGOR: I'm trying to think back

to that report. I think the level that we

are suggesting -- and, again, there's caveats

in that report. To say you can't make a

translation directly from a measured level

growth to define your goal. There are

caveats. But I believe that a 20 percent

reduction in growth rate is equivalent, or at

least roughly equivalent, to what I'm calling

less optimal here. And that's consistent, we

believe that's consistent with the

interpretations of the national criteria

document, Attachment X.

MR. ANDES: The 20 percent is in the

EPA criteria document?

MR. SMOGOR: Let me check on that. I

can give you a page number even. Page 30 in

Attachment X, and, actually, I think they

start to address this concept maybe on

Page 29 and 29 through pages -- 29 through 33

address those issues in Attachment X. Those

are the pages from Attachment X.

MR. ANDES: And does the less optimal

fish growth relate to a specific life stage

or to the larva or the young and/or adult or

all of them? How is that assessed?

MR. SMOGOR: The standards we propose

for CAWS A reflect an allowance for less

optimal growth across all life stages.

MR. ANDES: But the Agency hasn't

actually looked at any data in terms of any

of those life stages, right?

MR. SMOGOR: We have not looked at

growth rates for fish in the CAWS for those

life stages.

MR. ANDES: Thank you. We'll move to

the Use B waters with the next question. On

Page 6, Paragraph 2 of your prefiled

testimony, you state for the third set of

waters called Chicago Area Waterway System

and Branden Pool Aquatic Life Use B Waters,

the proposed dissolved oxygen standards are

consistent with the incrementally lower

biological potential of these waters compared

to cause Aquatic Life Use A waters. Please

define incrementally lower biological

potential.

HEARING OFFICER TIPSORD: That's

Question 11.

MR. SMOGOR: Thank you. By, quote,

incrementally lower biological potential,

unquote, we're referring simply to a level

that's lower than that is attainable in CAWS

A waters.

MR. ANDES: All right. So if you

define the CAWS A waters with reference to a

20 percent reduction in fish growth rate, are

you defining the Use B by a higher percent

reduction in fish growth rate or is there

some other metric?

MR. SMOGOR: No. I wouldn't equate

fish growth and biological potential here.

Those are two different aspects.

MR. ANDES: Help me understand

biological potential and what -- how you

measure that.

MR. SMOGOR: Biological potential is,

again, in reference to aquatic life goal of

the Clean Water Act, and biological

potential, it's measured -- one way to

measure it is with an index of biological

integrity.

MR. ANDES: Well, I thought, though,

that it was earlier said that IBIs really

weren't a good way of looking at potential,

that you were using more of the habitat

index?

MR. SMOGOR: No. I said that existing

conditions don't necessarily fully inform you

about potential conditions, but ways of

measuring biological condition, whether it

be -- well, obviously you can't measure

something into the future, but ways of

measuring biological condition include

something like an index of biointegrity.

MR. ANDES: But here we're talking

about biological potential, not biological

conditions. So the question is, are you

saying that B waters are defined with

reference to A waters simply based on their

QHEI scores which go toward potential or

something else?

MR. SMOGOR: The use that we proposed

for CAWS B represents a level of biological

condition that is a potential condition, and

we believe that is lower than the potential

CAWS A waters. And that determination is

largely based on looking at physical habitat

information.

MR. ANDES: It seems, and tell me --

help me understand this. It sounds like the

distinction between the Clean Water Act goal

and the Use A waters was premised more on the

less optimal fish growth, but then the

difference between Use A and Use B was

premised on these biological potential. I'm

trying to understand why we have different

metrics being used in those two situations.

MR. SMOGOR: I don't believe that's

accurate, so I'll try to give you another

explanation to try to clarify. Sorry.

When we're talking about

setting dissolved oxygen standards for

different levels of attainable biological

condition, on the one hand for a higher level

of attainable biological condition or a

higher level of biological potential, you

probably need more stringent, for lack of a

better term, dissolved oxygen standards, and

that's what we've proposed. They're a little

more demanding for CAWS A waters than they

are for CAWS B waters, and what we're

allowing, in both of those waters, is for

levels of DO that are even less than the DO

you would need if you wanted -- if you wanted

to attain the Clean Water Act goal. So

that's why I use the word incremental. Your

expectations are incrementally stepped

downward from the Clean Water Act goal. And

it seems to make sense to us that in some

aspects of these dissolved oxygen standards,

you can become a little less demanding as

well.

MR. ANDES: And in going down to

Use A, you define the extent of deviation

from the goal by saying less optimal fish

growth at that point, 20 percent reduction in

growth rate. So I'm trying to understand

then how do you define the step down to Use B

in the standards?

MR. SMOGOR: In terms of dissolved

oxygen, we're not -- we're not asking for any

or demanding any less reduction in fish

growth.

MR. ANDES: In Use B waters?

MR. SMOGOR: In Use B waters.

MR. ANDES: Why not?

MR. SMOGOR: Because we believe that

in setting the dissolved oxygen standards,

your first line of defense is to say don't

let fish die, prevent lethal conditions. And

by taking that first line of defense in the

CAWS A and CAWS B waters, you're accounting

well enough for the less acute effects,

you're accounting well enough for the chronic

effects, potential chronic effects. So there

really isn't -- We aren't expecting any

lesser fish growth in CAWS B waters than in

CAWS A waters. The way -- for the dissolved

oxygen standards, the way they're set.

MR. ANDES: Why not if they have lower

biological potential?

MR. SMOGOR: Well, the difference

between the two is we're affording for CAWS A

waters in terms of dissolved oxygen

standards. The big difference is we're

affording enhanced or special protection for

early life stages that we're not affording to

CAWS B waters.

MR. ANDES: Okay. But it sounded --

you say like the issue you're focussing on

there was fish growth across all life stages,

okay? So -- and then you said and we have

incrementally lower biologic potential

generally defined for Use B. And I'm trying

to understand why that only extends to the

early life stage issue and not across the

board.

MR. SMOGOR: I think it might be

helpful -- Would it be helpful if I walked

through kind of the rationale of these DO

standards from -- if I could refer to the

table that has these standards in our

statement of reasons, Page 60.

MR. ANDES: Absolutely.

MR. SMOGOR: I'll try to outline our

general reasoning, and probably the easiest

way to do this, given that it is complicated,

is to walk from the bottom row up. And so on

the bottom row of the table on Page 60, we

have the proposed aquatic -- or the dissolved

oxygen standards that we've proposed for the

CAWS B and Branden Pool waters. And these

are what I'll call the least demanding set of

DO standards that we've proposed. So if we

look at that bottom row, we're not affording

any extra or special protection for early

life stages, but what we're doing is we're

looking at later life stages and we're saying

we're going to try to create conditions or

we're creating conditions that aren't lethal

to what later life stages of fish. And

that's what that 3.5 is in terms of the daily

minimum, and that's also what the 4 is in

terms of that 7-day mean of daily minimum.

If you think about an average of daily minima

across seven days, what this is saying with

the four is don't let too many days in a row

have a minimum that is just above 3.5.

Because that can be just as lethal to a fish

as going below 3.5. So that's what those two

criteria together are attempting to do for

CAWS B waters. And by doing so, given that

we have the lowest expectations, so to speak,

we've set the lowest bar for the aquatic life

use in CAWS B. By protecting at those levels

against these lethal effects, we believe

we're consistent with protecting for enough

growth, enough fish growth that would allow

us to attain the proposed aquatic life goal.

And we believe that is consistent with the

logic and the information that's in the U.S.

EPA 1986 document Attachment X. So that's

where we're starting.

MR. ANDES: So their rational, those

standards protect against lethality will have

a corollary effect of addressing the fish

growth?

MR. SMOGOR: They protect for enough

fish growth to attain the goal that we've

proposed for that water, based on the

information, based on the information in the

U.S. EPA National Criteria Document.

MR. ANDES: That goes back to the EPA

criteria document and the lower growth rate

it sounds like you've defined for A and B

waters the same, the lower fish growth of,

say, 20 percent reduction from the base

number.

MR. SMOGOR: Yes, yes. Do you want me

to continue?

MR. ANDES: Go ahead.

MR. SMOGOR: The next row up which

represents CAWS A waters, again, our aquatic

life goal for CAWS A waters is a little bit

higher, although still short of Clean Water

Act aquatic life goal. We're saying, again,

don't allow for lethal conditions. And, in

this case, we're offering a little bit of

extra protection, enhanced protection for

lethality, to prevent lethality of early life

stages. And, again, we believe that's

consistent with the information provided in

Attachment X. Now we're saying to attain

this higher goal, we have to afford a little

extra protection for the early life stages,

and we're setting that at a daily minimum of

five, and that's the only difference between

the DO, proposed DO standards for each set of

waters in CAWS A, CAWS B, plus Branden Pool.

MR. ANDES: And the rationale, again,

for adding that for the Use A waters, adding

that particular aspect does what?

MR. SMOGOR: Is to provide what we

believe is extra protection for early life

stages that would allow you to attain that

even higher bar that you've set for the

CAWS A waters in terms of aquatic life.

MR. ANDES: Be specific. How does it

make the population different by having that

standard.

MR. SMOGOR: I'm not sure I understand

the question.

MR. ANDES: What difference does it

make in the community, and don't say it's

nearer to the Clean Water Act goal. I need

to know more specifically, how does that

community then differ, the community

supported by that set of standards, differs

from the Use B standards?

MR. SMOGOR: In terms of protection,

and, again, this all comes with the caveat

that we do not know the specific dissolved

oxygen requirements of most Illinois stream

fish species, we do not know the specific

dissolved oxygen requirements of all the life

stages of most Illinois stream fish species,

but we do know from the U.S. EPA --

Attachment X, U.S. EPA National Criteria

Document, we do know those requirements for

at least some of the species that will occur

in these waters; namely some of the key

species here with those thresholds shall

channel catfish and large mouth bass. In

terms of these criteria, if you're going to

protect for early life stages of fish that

have early life stages that are as sensitive

as channel cat and probably even small mouth

bass, then you have to keep the DO above five

if you're going to protect for those types of

early life stages.

MR. ANDES: Which kind of bass is

that?

MR. SMOGOR: Let me say it again. For

early life stages that are as sensitive as

the early life stages of channel catfish or

small mouth bass, we need to keep the

dissolved oxygen levels above a daily minimum

of five in order to protect for those types

of early life stages.

MR. ANDES: And you're saying that's,

again, based on the EPA criteria document.

MR. SMOGOR: Yes.

MR. ANDES: Okay. And then keep going

and explain how you move on from there.

100

MR. TWAIT: Could we just --

MR. SMOGOR: There seems to be some

fish names that are kind of wacky in

themselves, but there's a figure in the

dissolved -- in the U.S. EPA document,

National Criteria Document, and bear with me,

please. There's also narrative that talks

about and interprets this. But on Page 14

that's an important figure to some of the

interpretation that were reached later in

this document, some of the conclusions. It's

not the sole source of all information, but

this is a document that -- on Page 14 there's

a figure that shows that in general terms

when your early life stages of channel

catfish and early life stages of small mouth

bass of the few species that were tested seem

to be some of the more sensitive ones and

they need -- they've argued that in order to

protect for them, early life stages of

species that are that sensitive, you need to

keep dissolved oxygen up around five. That's

where that comes from.

MR. ETTINGER: Can I just -- and our

101

judgment between A and B is that we think

there's habitat suitable in the A waters to

have those early life stages, but we don't

think there's suitable habitat for the early

life stages in the B waters?

MR. SMOGOR: Yes. For fishes that

were -- again, we're taking some of our

guesses on all the other species that we

don't know their individual DO requirements,

but we're reasoning that we think it's

reasonable to protect for small mouth bass

and channel catfish in CAWS A waters to

protect fully for the early life stages

because we believe that those systems can

support those early life stages in terms of

the habitat required for spawning and rearing

and development of those early life stages.

MR. ANDES: Okay. And then explain

how you move up from there.

MR. SMOGOR: You haven't asked me

about Upper Dresden Island Pool.

MR. ANDES: I have a feeling a few

people would like to know.

MR. SMOGOR: You're jerking with me.

102

I figured I'd jerk with you.

MR. ANDES: Now we're even.

MR. SMOGOR: Totally a joke. I

respect your position.

MR. ANDES: No offense taken.

MR. SMOGOR: The next level going up

is Upper Dresden Island Pool, and because

we've proposed a use, an aquatic life use for

Upper Dresden Island Pool that is at a

minimum consistent with the aquatic life

goal, we've pretty much just repeated what

we've proposed for general use waters that

weren't offered the enhanced protection in

the other rulemaking, the docket R4-25

rulemaking I'm referring to.

MR. ANDES: Okay. Let's move on to

the next question in discussing the CAWS

Aquatic Life Use A waters. On Page 5,

Paragraph 3 of your prefiled testimony, you

state for sufficient protection under such

limited growth situations EPA's 1986 National

Criteria Document provides chronic criteria

in 5.0 milligrams per liter and a daily mean

average across seven days early life stages.

103

Early life stages EPA provides analogous

criteria of 4.0 milligrams per liter. Page

6, Paragraph 1 of your prefiled testimony you

state, Illinois judges that this level of

protection is sufficient to attain an already

limited growth potential for fish in these

waters. So the first question is in terms of

using the 3.5 instead of 3.0, why is IEPA

criteria more protective than the EPA

criteria document?

HEARING OFFICER TIPSORD: For the

record, this is Question 12A.

MR. SMOGOR: If you're asking about

the 3 and 3.5 difference, was that in perhaps

an earlier question, not this one in

particular? Just to --

MS. WILLIAMS: You've rephrased this

question, right, make it clearer? I think

you made it clearer.

MR. ANDES: I rephrased it, yes.

MS. WILLIAMS: It's 12A, but he's

being more specific.

MR. SMOGOR: So you're asking in terms

of why did we propose 3.5 as a daily minimum,

104

and what's the justification for that?

MR. ANDES: Yes.

MR. SMOGOR: In U.S. EPA National

criteria document, Attachment X, the table

that -- the document does provide

justification for 3.5, and that is addressed

in Table 8 on Page 34. If you look at the

reference to footnote No. 4, and then

reference from that footnote to an

explanation on Page 37, we believe the

National Criteria Document does provide

justification for waters that have

manipulatable discharges that the National

Criteria Document does recommend setting or

offer as an option setting that daily minimum

to a 3.5 under those situations.

MR. ANDES: Manipulatable discharges?

MR. SMOGOR: Manipulatable discharges.

MR. ANDES: Meaning?

MR. SMOGOR: I think they talk about

how dissolved oxygens can be -- dissolved

oxygen can be controlled somewhat.

MR. ANDES: Can't that always be --

You're talking about by putting more air in?

105

MR. SMOGOR: Yes. I think that's what

they're referring to here.

MR. ANDES: Wouldn't that be done on a

lot of water bodies? I'm trying to

understand the distinction here in terms

of --

MS. WILLIAMS: I'd like to sort of

clarify the way we handled the references in

the back of the statement of reasons. We did

not provide the technical support document

from the dissolved oxygen rulemaking. We

simply referred to the pending docket, and I

believe these issues were discussed in detail

before the board in that pending docket. So

there may be more information that we relied

on in that docket generally as well.

MR. ANDES: And will that information

be put into this docket? We don't have to go

through that whole docket, right? Any

information relative to this rulemaking

should be put into this docket. I'll request

that.

MS. WILLIAMS: So are you saying with

regard to the 3.5 -- Because the original

106

proponent of that rule IEWA proposed the 3.5

minimum that ended up in the final rule. So

I'm not sure there was very much controversy

about establishing 3.5.

MR. ANDES: Was that for the CAWS?

MS. WILLIAMS: For the state. And

that's was we relied on, what we've done for

the rest of the state.

MR. SMOGOR: That's to prevent lethal

conditions. And I believe that part of the

docket for R4-25 addresses this aspect that I

referenced in the tech -- sorry -- the

National Criteria Document, Attachment X, as

part of the basis for suggesting that 3.0

instead of 3 as the data.

MR. ANDES: So you're saying that in

your -- what did you say your explanation of

why you used one instead of the other?

MR. SMOGOR: I believe that there's

justification on Page 34, and by reference

Page 38 -- 37 and 38 of the U.S. EPA National

Criteria Document, Attachment X. I believe

there's sufficient justification in that

document to propose 3.5 as a daily minimum.

107

MR. ANDES: Next question, what is the

scientific basis for IEPA to propose DO

standards of above 5.0 milligrams per liter

at all times for early life stages and seven

day averages of daily minima of 4.0 for other

life stages in the CAWS? And I think in

particular the question is if the EPA 5.0 was

the daily mean average across seven days for

early life stages, why did the Agency decide

to do that as a daily minimum?

MR. SMOGOR: Actually, the daily --

The U.S. EPA National Criteria Document

includes both -- includes thresholds for both

averages of daily averages and averages of

daily minima so that the document -- maybe

I'm misunderstanding your question.

MR. ANDES: So when your proposal is

for a daily minimum of 5.0 for Use A waters,

are you saying that's consistent with the EPA

recommendation of 5.0, which seem to be more

of an average across seven days?

MR. SMOGOR: Yes. I believe that when

we said, again, referring to Page 60 in our

statement of reasons, the second row from the

108

bottom for CAWS A waters, we proposed for

early life stages protection a daily minimum

of 5.0. I believe that's consistent with

U.S. EPA National Criteria Document for the

reasons we talk about earlier in terms of the

most sensitive early life stage fish.

MR. ANDES: So you think the EPA

document recommended use of a daily minimum

rather than a seven-day average daily

minimum?

MR. SMOGOR: Both.

MR. ANDES: And both under which

circumstances?

MR. SMOGOR: I'll try to go through

this again.

MR. ANDES: What's the reason for one

rather than the other?

MR. SMOGOR: Page 60 of the statement

of reasons.

MR. ANDES: Refer me to the EPA

document. If the EPA document is both, tell

me what circumstances does it say to use one

or the other.

MR. SMOGOR: In Table 8 on Page 34 of

109

the U.S. EPA document -- This is a little

confusing because there is more in here than

what we're addressing. Forget about the

left-hand side of that table where they call

a cold water criteria. If you look under the

warm water area, you'll see at the very last

row of the table U.S. EPA suggests that 5.0

daily minimum for early life stages. That's

where we're getting it. Also for early life

stages, they propose a 7-day mean which is a

seven-day average of daily averages or of

daily means. So both of those criteria are

recommended for protection of early life

stages. And so your question is what from

there?

MR. ANDES: You're saying they

recommend both and you picked --

MR. SMOGOR: For CAWS A -- now I see

where you're getting. For CAWS A that level

of 6 assumes, and, again, that's what we're

calling more of a chronic condition, that's

not to protect necessarily against death, but

to protect against chronic conditions that

can impede you from reaching potential of the

110

water body which addresses, in particular,

for example, fish growth. That level of 6

there is a level that would allow you to

reach -- to have enough fish growth to attain

the Clean Water Act goal. But because we're

setting for something a little less than the

Clean Water Act goal for CAWS A waters, it

allows you to set a seven-day mean at a lower

level. And when I tried to explain in the

statement of reasons and in my prefiled

testimony that if you set that lower level

that's allowable, it would be automatically

covered by assuring that the daily minimum

doesn't ever go below five. So you're

already covered. You're already protecting

-- with a daily minimum of 5 CAWS A waters

for early life stages, you're already

protecting enough for enough growth. Even

though it's not this optimal level of growth,

you're protecting for enough growth to

achieve the proposed goal of that water body

that we've set.

MR. ANDES: Let me move on to some

additional questions on -- actually, as I

111

review my -- couple of follow-up questions on

dissolved oxygen, and then I think we'll be

done with dissolved oxygen.

I want to go back. There was a

short discussion earlier of fish kills, and I

want to focus in particular on Cal-Sag

Channel. Have fish kills been reported to

the IEPA in the last five years for the

Cal-Sag Channel?

MR. SULSKI: What page are you on,

Fred? Because I think that I remember that

question.

MR. ANDES: There is a question. I

think it's on Page 4 of our prefiled

testimony, specifically considering

concerning the fish kills on the Cal-Sag

Channel.

MR. SULSKI: Page 4, No. 16.

MR. ANDES: Yes. And the Cal-Sag

right now is a minimum daily DO of 3.0. So

the first question was how many significant

fish kills have been reported to the IEPA in

the past five years for the Cal-Sag Channel?

MR. SULSKI: I have not received any

112

reports of fish kills in the Cal-Sag in the

last five years.

MR. ANDES: Okay. So the question

then -- I'll skip the next couple. Can you

explain then why you need a higher minimum

daily DO standard now for the Cal-Sag

Channel?

MR. SMOGOR: Based on the information

that we have and the information and

interpretations in the U.S. EPA National

Criteria Document, in addition to our

interpretations and usage of the national

criteria document, Attachment X in our

technical support document for the previous

dissolved oxygen rulemaking, we believe that

you need to maintain a daily minimum of 3.5

milligrams per liter to avoid undesirable

lethal conditions for fish.

MR. ANDES: Have you seen undesirable

lethal conditions for fish in the Cal-Sag in

the last five years with the DO standard of

three?

MR. SMOGOR: I believe that if the DO

was three, then based on our analysis that

113

would be undesirable.

MR. ANDES: The standard right now

is 3, and that hasn't seemed to allow for

lethal situations.

MR. SMOGOR: Well, I guess if you're

saying that do fish need -- every time fish

die or are faced with potentially lethal

situations, do we have that documented? No.

We don't have that explicitly documented.

But not having evidence of either fish

avoidance or fish death doesn't mean that

fish aren't out there dying or avoiding.

MR. ANDES: It also doesn't mean that

the current standard is not protective,

right? I'm asking for information showing

that the current standard is not protective

on lethality.

MR. SMOGOR: And the information we're

providing is we believe that the National

Criteria Document would suggest under these

circumstances that a 3.5 should be

maintained. That is our basis for going 3.5.

MS. WILLIAMS: Do you know what the DO

levels are, have been over the past five

114

years in the Cal-Sag Channel?

MR. SMOGOR: No.

HEARING OFFICER TIPSORD: Mr. Harley

had a follow-up.

MR. HARLEY: That was my question.

MR. ANDES: Next question, and I think

part of this may have been answered. But the

next question in the prefiled is No. 17. The

IEPA proposal for Aquatic Life Use A waters

specifies a daily minimum DO of 5.0 from the

months of March through July. The first

question was to identify the fish and benthic

species living in Use A waters in the CAWS

that need this high of a DO concentration to

thrive. And from your earlier answer, I

guess I'm questioning are we talking about

small mouth bass and channel catfish?

MR. SMOGOR: Yeah. We don't know the

specific requirements across all life stages

and across many of the species of Illinois

stream fish, but in general based on the

information and the National Criteria

Document and our subsequent interpretations

and usage of that information, any species

115

whose early life stages are as sensitive to

low dissolved oxygen as are the early life

stages of channel catfish need DO maintained

at 5.0 milligrams per liter or above.

MR. ANDES: So are there channel

catfish and small mouth bass in the Cal-Sag

Channel? Does the Agency have any

information on that?

MR. SMOGOR: Yes. I think there's

some available information in Attachment B

which is the CAWS UAA report and --

MR. ANDES: Okay.

MR. SULSKI: The MWRD 2001-2006

attachment -- 2005.

MR. SMOGOR: I think that's

Exhibit 28.

MS. WILLIAMS: Speaking of Exhibit 28,

last time we apparently provided an

incomplete copy of it. Can we enter it now,

please.

HEARING OFFICER TIPSORD: Sure. Roy?

MR. SULSKI: Page 4-98 in

Attachment B.

MS. WILLIAMS: I'm handing you what's

116

titled Metropolitan Water District of Greater

Chicago Ambient Water Quality Monitoring

Program Sampling Stations.

HEARING OFFICER TIPSORD: If there's

no objection, we'll mark this as Exhibit 48.

Seeing none, it's Exhibit 48.

MS. FRANZETTI: Do I understand

correctly that it effectively replaces

Exhibit 28? Is it just a complete copy of

Exhibit 28?

MS. DIERS: Yes.

MS. WILLIAMS: Yes. We can replace

Exhibit 28, if you want.

MR. ANDES: Exhibit 28 is now

inoperative.

MR. SULSKI: I misspoke on the table

in Attachment B. It's on Page 4-93. Table

4-58 is the Cal-Sag Channel.

MR. ANDES: And what does that show

you?

MR. SULSKI: It shows you the presence

of small mouth bass, channel cat, white

sucker, among other species.

MR. SMOGOR: And in Exhibit 28, which

117

we've just augmented --

HEARING OFFICER TIPSORD: Replaced.

MR. SMOGOR: Replaced, I'm sorry.

There is, again, presence of channel catfish

and small mouth bass in Calumet Sag Channel.

MR. ANDES: How many?

MR. SMOGOR: At least the page I'm

looking at. I'm not sure if these are single

fish samples or not.

HEARING OFFICER TIPSORD: What's the

page number?

MR. SMOGOR: I hope they're the same

ones. Page 4 of 5 in the table titled

Cal-Sag Channel at the top or real near the

top of your Page 4? Actually, let me look to

make sure I have the right page. I'm going

to hold off and make sure I'm looking at the

current exhibit.

MS. WILLIAMS: When you change the

margins on the tables, sometimes they don't

print out the same number of pages.

MR. SMOGOR: For example, on Page 9 of

14 in the current exhibit -- Exhibit 48 which

was just distributed, the ninth page in, it's

118

actually identified as Page 9 of 14 at the

bottom. If I'm on the right page, the very

last section of that table, the bottom

section of that table says Calumet Sag

Channel provides sufficient data from Calumet

Sag Channel. I'm not sure. Right offhand

I'm not -- these are summaries of the number

of fish collected, I guess, by years here.

MR. ANDES: Let's go into that a

little bit. The first station on the

Cal-Sag, Station 58, are there any channel

catfish or small mouth bass?

MR. SMOGOR: No, not in that list

there. Ashland Avenue. Is that what you're

referring to?

MR. ANDES: Right. The next one which

is a SEPA aeration station, am I right that

there are -- were two small mouth bass and

four channel catfish?

MR. SMOGOR: Yes. That's what the

table is indicating.

MR. ANDES: Turning the next page to

Station 59, Cicero Avenue, any channel

catfish or small mouth bass?

119

MR. SMOGOR: No.

MR. ANDES: The next station which is

a SEPA aeration station, there are -- there

were four small mouth bass and no channel

catfish. Am I right?

MR. SMOGOR: Right.

MR. ANDES: And at Station 43 at

Route 83, there were no channel catfish or

small mouth bass?

MR. SMOGOR: Correct.

MR. ANDES: Okay. And at SEPA station

No. 5, there were 15 channel catfish, no

small mouth bass. Am I right?

MR. SULSKI: Yes.

MR. ANDES: So the only channel

catfish and small mouth bass are around the

aeration station, correct?

MR. SULSKI: According to this table,

yes.

MR. ANDES: Thank you.

HEARING OFFICER TIPSORD: Can I ask a

question? I'm getting very confused looking

at these tables, and now the header we have

one of two, 9 of 14, 9 of 14, and then

120

umpteen of 13. So we have four different

sets of data here. They all have -- at least

two of these have the exact same heading.

Total fish pounds -- okay versus number. I'm

sorry. I stand corrected.

MS. WILLIAMS: It is confusing. There

are four spreadsheets.

HEARING OFFICER TIPSORD: It is very

confusing. And in the future we need to do

one of two things: We either need to number

them 1 through 25, or if we're going to

submit separate documents as one group

exhibit like we did with the previous

exhibit, we need to separate them so that we

all know that we're looking at separate

documents. This is going to be very

difficult for people looking at this

transcript to figure out exactly where we

were just now.

MS. WILLIAMS: I agree. These were

copied on Tuesday and we didn't really have

time to go through and --

HEARING OFFICER TIPSORD: That goes

for everybody. Because, keep in mind, when

121

people are reading the transcripts and going

back and looking it at this, and although it

may be fresh in our minds today, it's going

to be true of all of us, it would be real

helpful if we can do that. So thank you.

Sorry, Mr. Andes.

MR. ANDES: A couple of follow-up

questions on previous testimony.

MR. HARLEY: I'm sorry. Before we

leave, are we leaving the subject of bass in

the Cal-Sag?

MR. ANDES: We're still going to be

talking about fish.

MR. HARLEY: Could I ask a question

specific to bass in the Cal-Sag?

MR. ANDES: Go ahead.

MR. HARLEY: Thank you. Are any of

the agency witnesses aware of the fact that

the National Bassmaster's Classic was --

tournament took place in the Calumet?

MR. SULSKI: Yes.

MR. HARLEY: And was that on or around

July 2000?

MR. SULSKI: I don't remember the

122

exact date.

MR. HARLEY: Thank you.

MR. ANDES: Was that on the Cal-Sag

Channel?

MR. SULSKI: It was the entire Calumet

system.

MR. HARLEY: Then a follow-up. Do you

know whether or not bass were caught during

the Bassmaster's Classic that was undertaken

in the Calumet?

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

that there was a weigh-in station at the

Alsip or Worth boat dock. I don't know.

MR. ANDES: Do we know if they were

small mouth instead of large mouth?

MR. SULSKI: I don't know.

MR. ANDES: Thank you. A follow-up

question. On January 29 in the testimony of

Mr. Sulski, Page 213, the statement was that

a species like channel cat would have a DO

requirement that would fit a certain sort of

habitat. Can you explain exactly how the DO

requirement would be related to certain sort

of habitat?

123

MR. SULSKI: These were questions

related to CDM's use of the word sport fish,

it looks like. Please repeat your question.

I just wanted to read the context.

MR. ANDES: Sure. So the statement

was made that a species like channel cat

would have a DO requirement that would fit a

certain sort of habitat. So I'm trying to

understand how their DO requirement is

related to a certain sort of habitat.

MR. SULSKI: The use designation that

we're proposing.

MR. ANDES: As a scientific matter,

how does the DO requirement in terms of what

they need to grow, not die, et cetera, how

does that relate to a certain sort of

habitat?

MR. SULSKI: I'm not sure how these

got linked. So I would suggest that -- I

don't know how to answer your question.

MR. ANDES: So there's no real basis

for linking them, right?

MR. SMOGOR: For linking what?

MR. ANDES: DO requirement and a

124

certain sort of habitat.

MR. SMOGOR: I think if you're setting

DO requirements for early life stages of

fish, you make the assumption that those

early life stages can be produced in those

waters. I mean you're making those waters,

you're relying on those waters to support

those early life stages.

MR. ANDES: But the DO requirement of

the species doesn't have anything to do with

the habitat nature. That's all I'm saying.

They're two separate issues.

MR. SMOGOR: Their physiological

requirements?

MR. ANDES: Yes.

MR. SMOGOR: No.

MR. ANDES: Thank you. Let's move to

the March 10 morning testimony by Mr. Smogor,

and this will be on Pages 74 and 75 of that

testimony.

MS. WILLIAMS: Just a second.

MR. ANDES: We're going to be talking

about fish sizes, if that helps.

MR. SULSKI: We found the pages.

125

MR. ANDES: The statement here was

based on the small sizes of some of the

individuals captured, one could deduce that

there must be some kind of spawning going on

in those waters because of the small sizes of

fish present, usually small sizes compared to

the adult size of species. So the first

question is are there specific criteria or

length/width ratios which are used for

various species to characterize small fish as

subadults?

MR. SMOGOR: I don't know of

specifics.

MR. ANDES: So what methodology was

used to decide whether a small fish was

simply small versus a young fish?

MR. SMOGOR: In other words, you're

asking is it possible that the small sizes I

referred to could have been adult

reproductive fish?

MR. ANDES: Yes. How did you decide

whether smaller fish were subadults or not?

MR. SMOGOR: I was basing it on my

personal experience with sampling fishes and

126

capturing fishes.

MR. ANDES: Do you know of specific

protocols that are normally used to analyze

fish data and determine which individuals are

likely to be subadult?

MR. SMOGOR: Not offhand. I haven't

applied those, no, not in this situation.

MR. ANDES: Okay. Has IEPA indicated

on the fish data spreadsheets which

individuals they decided were subadult and

how many of them were there?

MR. SMOGOR: No. We haven't

identified that specifically.

MR. ANDES: There is no way for us to

go back and check in terms of which ones you

thought were subadult?

MR. SMOGOR: I was given some general

observations of these sheets. If you're

looking for potential examples I can try to

look through them now and point out what I

believe are probably subadult fish sizes.

MR. ANDES: No. I'm interested in the

record. I'm interested in what the Agency

considered in deciding -- in making its

127

determination.

MR. SMOGOR: My testimony that you're

referring to on the record was based on my

general knowledge and based on my review of

these sheets, but not based on any kind of

formal analysis.

MR. ANDES: Okay. And I'm done with

DO and related issues. I have other issues

on bacteria and on other pollutants, but I

wanted to stop there and let you know that.

HEARING OFFICER TIPSORD: Okay. Well,

then let's go ahead and break for lunch now.

(Off the record.)

(Lunch break taken.)

HEARING OFFICER TIPSORD: Mr. Andes?

MR. ANDES: I'll move to prefiled

questions for Mr. Twait, and I believe these

are on Page 31 of our prefiled questions.

The second question, on Page 2 of your

prefiled testimony you state in most cases

identical numeric or quality standards are

necessary to protect all of the proposed

aquatic life use designations. Exceptions to

this are temperature, dissolved oxygen, and

128

ammonia.

First, if you based the

specific numeric standards on species known

to exist in the CAWS, can you identify the

parameters for which this was done?

MR. TWAIT: The Agency looked at the

potential of the waterway, not necessarily at

species known to exist. However, for some of

the toxics, and by toxics I mean metals that

we relied on the National Criteria Document,

we removed the cold water species and species

not native to Illinois in the development of

the proposed standards.

MR. ANDES: Can you say which

parameters that applied to?

MR. TWAIT: I can say they do -- that

does apply to copper, and I know it applies

to some of the other general -- some of the

other parameters where we took the water

quality standard from general use, but I

don't know off the bat, off the top of my

head, which ones those are.

MR. ANDES: Okay. Well, I would like

to request a list of those parameters.

129

MS. WILLIAMS: I think that we had

testimony on this already, Fred, at the last

hearing, and I think he did provide more

specific -- I mean I can go back to the

transcript, too, and find it if that will be

sufficient for your question.

MR. ANDES: I don't remember this

specific question being answered.

So there was some pollutants for

which you removed the cold water species and

species not known to exist in Illinois. And

what was the rationale for doing that for

some and not other pollutants?

MR. TWAIT: We did that wherever the

national criteria documents would have been

using the cold water species as -- in the

national criteria document. If it -- we

would have removed cold water species

wherever practical from our water quality

standards.

MR. ANDES: Okay. And from what

you're saying it sounds like it was not any

attempt to differentiate between species

known to exist in Illinois and species known

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to exist in the CAWS?

MR. TWAIT: For the proposal we had

not done that specifically. And part of the

reason is the way that the National Criteria

Document works, the development of the

standards works, is that if you remove too

many species, the criteria get more

protective because you're taking out --

you're taking out -- you're increasing your

multiplier because your species are going

down.

MR. ANDES: Okay. Let me move to

Question D. And this really relates to

Question E as well. Why is it that

temperature, DO, and ammonia there are

different standards for the different aquatic

life uses but not for the other parameters?

MR. TWAIT: Because the National

Criteria Document treated those -- well, the

National Criteria Document treats some

parameters separately such as dissolved

oxygen. The National Criteria Document talks

about when you have sensitive life species

present or absent. It talks about suboptimal

131

growth. Ammonia does something similar. It

talks about when you have sensitive life

species present or absent. And

temperature --

MR. ETTINGER: You've been saying

sensitive life species. I think you mean

stages.

MR. TWAIT: Early life stages. I'm

sorry. Thank you. And for temperature we've

developed an RAS list. For the toxics, the

National Criteria Document does not go into

whether or not there's early life stages

present or absent, and it does not make some

of those differentiations.

MR. ANDES: But if we have waters

where we believe that they cannot attain the

Clean Water Act uses, wouldn't it make sense

to consider whether the standards for variety

of pollutants should be different for those

waters?

MR. TWAIT: Yes. I think where we

could do that we did, and one example would

be cadmium where the National Criteria

Document, when we looked at it with the water

132

quality standard would be and we compared it

to what was in the water, we went back and

looked to the sufficiency of our general use

and --

MR. ANDES: I'm looking more for

distinctions between, say, A waters and B

waters, and wouldn't it make sense to have

different standards for those two kinds of

waters if the biological potential of those

waters are different?

MR. TWAIT: Well, the major difference

between the A and B waters is whether early

life stages are present or absent, and the

metals do not differentiate between presence

or absence of early life stages.

MR. ANDES: That may be the difference

in how you did the standards. The difference

in uses, as I recall from testimony earlier

today from Mr. Smogor, was that the

Category B waters have incrementally lower

biological potential. So my question is if

they have incrementally lower biological

water potential, why aren't the standards for

copper or other pollutants different as they

133

are for DO, ammonia, and temperature?

MR. TWAIT: Well, I think if you have

early life stages present, it's incrementally

better than if you have a spot where there's

no early life stages. So I think that there

is some -- it is incrementally better and

part of that is whether the early life stages

can be supported or not.

MR. ANDES: But the Agency's proposal

makes the Use B waters meet the same copper

standard as the Use A waters. So my question

is why do that if the early life stages are

not present? Or, you know, if those Use B

waters don't have the same biologic

potential, is it right to make them meet the

standard that the Use A waters need to meet?

MR. TWAIT: Well, the standard is

based on toxicology information, and they

don't differentiate between when you have

early life stages present or absent.

MR. ANDES: The EPA numbers are

guidance, correct?

MR. TWAIT: Yes.

MR. ANDES: Let me move on to another

134

question.

MR. ETTINGER: Let me follow up on

that. Are you aware of any situation in

which you are using a criteria to protect,

that was designed to protect the species

which isn't present in the B waters.

MR. TWAIT: Could you restate that?

MR. ETTINGER: Are you aware of any

situation in which you are using a criteria

in the B waters as to adult fish that is not

necessary to protect adult fish which are in

those waters?

MS. WILLIAMS: And by situation, do

you mean parameter?

MR. ETTINGER: As to any pollutant.

As to any fish.

MR. TWAIT: I don't think we've

included any parameters that are not

necessary. Some of the parameters in the

species list, they could have a species in

there that will not be found in the Use B

waters.

MR. ANDES: Okay.

MR. ETTINGER: Do you know of any such

135

fish now?

MR. TWAIT: Off the top of my head,

I'd have to say no.

HEARING OFFICER TIPSORD: Mr. Andes?

MR. ANDES: Next question. On Page 3

of your prefiled testimony you state that

there are a number of water quality standards

where the most recent U.S. EPA National

Criteria Document was found to be the same as

or consistent with the current water quality

standard on the books for the general use

designation. Given that the CAWS are not

general use waters and do not support biotic

indices as high as found in general use

waters, do you expect that these standards

are more protective as is necessary for, for

example, you say Use B waters?

MR. ETTINGER: I object to the

question. There's a suggestion in the

question that every general use water in

Illinois is of high quality. We've got some

whopping bad general use waters around this

state. I just want to make sure that his

question doesn't imply to every general use

136

water in the state is of high quality.

HEARING OFFICER TIPSORD: I don't know

that I would interpret that, but your point

is taken.

MR. HARLEY: I also would object on

the basis that we heard testimony earlier

today that there are portions of the CAWS

that are now designated as general use

waters.

MR. TWAIT: It's -- it's possible that

some of the numeric standards are more

protective than they need to be. It would

seem logical that if you were protecting for

a lower use water quality standards would be

less stringent than you would protect for

higher use. However, as I mentioned before,

the way the standards are set, you have

the -- when you take out too many species,

the standard becomes more stringent. And I

also mentioned that -- and this was

definitely the case for Cadmium. And, as I

mentioned before, we removed the cold water

species and species not native to Illinois.

MS. FRANZETTI: Mr. Twait, is the

137

reason, if you could just explain a little

bit, is the reason that when you get down to

a certain smaller number of species the

standard starts to get -- or the value that

is calculated for the proposed standard gets

stricter is because of some sort of higher

multiplier is used? Can you just explain why

that happens when you reduce the number of

species you're working with?

MR. TWAIT: As I understand it, part

of it is the multiplier goes up and part of

it is because the standard deviation

increases.

MS. FRANZETTI: Is that -- Is the

underlying intent of that the assumption that

if you only have a certain number of species

there must be a greater degree of uncertainty

with respect to what you're trying to protect

by the proposed standard? I'm really asking

do you know what the underlying logic is?

MR. TWAIT: I don't know what the

underlying logic -- I mean that sounds

reasonable.

MS. FRANZETTI: And I'm just going in

138

the direction of in a case like this where

you do know that, in fact, a limited number

of species can exist in a water body like the

CAWS, is there flexibility built into the

guidance that you're using that would allow

you to adjust so that you don't get that

result when you're using a limited number

species?

MR. TWAIT: I could not, when I was

dealing with cadmium specifically, could not

find any type of wiggle room for any way to

get around that that was supportable.

MS. FRANZETTI: Thank you.

HEARING OFFICER TIPSORD: Mr. Andes?

MR. ANDES: We may come back to that

issue a bit, but let me move on to the next

question on No. 4. On Page 4 you state that

the federal criterion states that a pH range

of 6.0 to 6.5 will be unlikely to be harmful

to fish unless the free carbon dioxide

present is in excess of 100 parts per

million. The question is why does the IEPA

choose the proposed standards of 6.5 to 9.0

instead of requiring pH of 6.0 to 9.0 and

139

free carbon dioxide less than 100 ppm which

should be acceptable under the federal

criteria?

MR. TWAIT: Well, the way that you

rephrased it from 6 to 9 and free carbon less

than 100 parts per million isn't a good way

to capture what the federal criteria would

say. You've got a valid point. From 6.5 to

9 the federal criteria says that those pH

levels are good. When the pH is between

6 and 6.5, it's only good when the carbon --

it's only protective when the carbon dioxide

is less than 100 parts per million.

MR. ANDES: So does that say that

perhaps the standard could be rephrased?

Sounds like the issue is specifically that

range, the 6.0 to 6.5. And I think what

we're saying is why not, in some way, say in

the standard that pH range in that range will

be allowed if the carbon dioxide is not over

100 ppm? So the question is would the Agency

consider that change given that that would be

allowed by the federal guidance?

MR. TWAIT: I think it is a very

140

valuable or very valid point that we could do

that. We didn't because actually I didn't

think of it. So I think we can definitely go

back and take a look at that because that's

what the federal criteria would allow.

MR. ANDES: Thank you. I'll move on

to Question 6. And, actually, I'm going to

directly to 6A. It's a specific question

concerning dissolved cadmium. In light of

the fact that the proposed hardness-based

chronic standard equation for dissolved

cadmium often results in a concentration very

close to the method detection limit, are the

compliance data for this constituent

reliable? Or would the Agency consider

addressing this issue?

MR. TWAIT: Well, with the hardness

value of something that we're going to find

in the CAWS waterways somewhere around 205 or

so, the water quality standard is 0.002

milligrams per liter which is two micrograms

per liter. And you're talking about a method

detection level of .3 micrograms per liter.

So I'm not certain that it's all that close.

141

Had we gone with the National Criteria

Document, this would be a much -- then the

relationship between the method detection

level and the water quality standard or the

National Criteria Document would be very

close, but I don't think they're very close

for what we've proposed.

MR. ANDES: So let me clarify. So

what is the number you're thinking comes out

of the equation and for which segment are you

talking about?

MR. TWAIT: I plugged into our

equation a hardness of 205 and I got 0.002

micrograms per liter -- milligrams per liter

which is two micrograms per liter.

MR. ANDES: And that hardness value is

from?

MR. TWAIT: That hardness values is

what we consider the critical hardness value,

and I believe that came from the lower Des

Plaines River.

MR. ANDES: Did you consider -- One,

I'd like to see the source of the data, the

next question.

142

MS. WILLIAMS: Source of what data?

Because I think that might be in the record.

Are you talking about hardness data?

MR. ANDES: Right.

MS. WILLIAMS: I do believe we have

hardness data in the record. Does that sound

right or no?

MR. ANDES: Probably not for the lower

Des Plaines from the District. I'd just like

to know.

MS. WILLIAMS: Maybe I was jumping

ahead as far as what I thought you were

interested in doing with the data. I'm

sorry.

MR. ANDES: The first question is I'd

like to get the source of the 205, and then

where did that come from; if it's in the

record, great. I'd just like to know where.

And then the second question is was there

other data for the CAWS and what would these

numbers come out like for the CAWS?

MR. TWAIT: The critical hardness data

that I mentioned, I just took a -- we use a

critical hardness data when we suggest permit

143

limits in an MPDES permit. And the critical

hardness data is developed by taking the

10 percentile low flows and take the

10 percentile hardness during those low

flows. And for the station that we have in

Joliet for the lower Des Plaines River is

205. I believe the hardness values for the

CAWS, I think everything was above 100.

MR. ANDES: That critical hardness

calculation is what you use in calculating

permit limits?

MR. TWAIT: Yes. That's the hardness

value that I used. Although when you take

samples, you would use the hardness value of

your individual sample.

MR. ANDES: And when assessing whether

the water has attained the standards or not,

you would tend to use the actual data?

MR. TWAIT: Yes.

MR. ANDES: I'm sorry for the delay.

So this was the critical hardness information

using that formula for the lower Des Plaines,

and as to the CAWS --

MS. WILLIAMS: Can you say what

144

formula? You said that.

MR. ANDES: I'm sorry. The formula

that Mr. Twait just described was used with

data from the lower Des Plaines to get the

205 number that he used in his calculation,

correct?

MR. TWAIT: Yes. Although I shouldn't

have mentioned that it was the critical

hardness data. Basically what -- I used the

number, the hardness value of 205 in the

water quality standard to develop a water

quality standard for cadmium. It doesn't

really matter where I got the 205 other than

the fact that that's one of the relative

numbers in the receiving.

MR. ANDES: I'm just trying to figure

out what exactly is the standard going to be

that we have to figure out here can it be

attained. And the next step is what permit

limits will it be based on. But in the first

place I'm trying to understand if we're

talking about a standard, a standard, not a

permit limit but a standard that could be,

depending on the hardness data, in the way

145

you use the hardness data, very close to the

method detection limit.

MR. ETTINGER: What's the lowest

hardness we're finding in the CAWS?

MR. TWAIT: I believe when we looked

at it it was 100.

MR. ETTINGER: Okay. Would it be a

big job to figure out what your cadmium

standard would come out to if you used 100

hardness?

MR. TWAIT: It will take me a few

minutes.

MR. ETTINGER: Maybe we can do that at

a break or something, and then we'll get an

idea as to the worst case scenario. Would

you be okay with that?

MR. ANDES: Obviously we've done

calculations that indicate the numbers are

pretty low, so I'm not offering evidence

here, so.

MR. ETTINGER: You can offer a

hypothetical based on hardness being a hybrid

and let's hear what the number is.

MR. ANDES: Jennifer Wassick (ph.) For

146

the District.

MS. WASSICK: So we calculated for

cadmium and found some levels that are within

either exactly the method detection limit or

within .00011.

MR. POLLS: What was the hardness

value?

MS. WASSICK: We used the actual

hardness value that was measured in the

water.

MR. POLLS: What was it?

MS. WASSICK: What was it?

HEARING OFFICER TIPSORD: Here is what

we need you to do, unless we're going to

swear you in right now. We need you to tell

us what was the highest hardness level you

used, and say I used -- sorry -- the lowest,

and I used that number and plugged it into

the formula. Does this sound like the

correct total.

MS. WASSICK: For instance, we have

some north shore channel data central stream

in 2005 for the hardness was about 140 and

the cadmium was .004. So that concentration

147

would be in violation of the standard.

MS. WILLIAMS: Can we be sure and be

clear about which formula you plugged that

into?

MS. WASSICK: Sure. It's the proposed

standard for dissolved cadmium for the --

MR. TWAIT: Could you read the number,

the equation?

HEARING OFFICER TIPSORD: You know

what, we need to swear you in. We're getting

too many facts in here not to swear you in.

(Witness sworn.)

HEARING OFFICER TIPSORD: Go ahead.

MS. WASSICK: So you want me to read

the equation?

MR. TWAIT: Or the -- just the A value

and the B value.

MS. WASSICK: So this would be, I

don't have a page number, but this would be

from the proposed standards and the table for

the American Water Quality Standards For the

Protection of Aquatic Organisms.

HEARING OFFICER TIPSORD: Excuse me.

Off the record for a second.

148

(Off the record.)

MS. WASSICK: We can provide these

eventually for the record, but I would just

say we have done the calculations for what

these standard would be based on, these

equations that were proposed, and then we've

compared them to what our values would be

based on our hardness and cadmium data and

we've identified several that are very close

to the method detection limits. So we will

provide that eventually, but.

MS. WILLIAMS: We were just concerned,

make sure that you're using the right

formula. Because those numbers sound very

low to us, but we can do that after.

MR. ETTINGER: Could I request that --

Is there any number we need other than their

cadmium number and the hardness number to run

your formula?

MR. TWAIT: No.

MR. ETTINGER: We just request what

the cadmium number is, the hardness number

that you had, and Mr. Twait can run it

through you his formula and see what number

149

he comes up with.

MS. WASSICK: This was apparently also

provided to IEPA with a letter. So I don't

know. It could be part of the record. I'm

not sure.

MR. TWAIT: Well, this is my concern.

There was some data provided by the District

and they were comparing their samples from

April 2005 to November 2006, and they were

giving the hardness value, zinc, cadmium and

nickel; and then the chronic standards

soluble for zinc, cadmium, nickel, and those

numbers were based on the National Criteria

Document that we had originally proposed.

After receiving this data, we went back and

looked at the screen data, and that's when we

decided to use the current general use

standard. So it had changed from the day

that the District had provided their data.

MS. WILLIAMS: And that's Exhibit,

Attachment BB to the statement of reasons has

that submittal from MWRD in it?

MR. ANDES: Let me clarify something

now. The issue in this question was not

150

whether the concentrations are over the limit

or over the standard. The issue was whether

the concentrations are close to the measured

detection number which wouldn't change, which

would not change depending on where the

Agency standard is. The issue is an

analytical one in terms of whether if

we're --

MR. TWAIT: But I believe it would

depend.

MR. ANDES: You're saying your numbers

are going to be much higher than that because

of the change in the proposal.

MR. TWAIT: Exactly. So I don't think

our proposed numbers are close to the method

detection level. And I will throw together

some numbers during our break.

MR. ANDES: Thank you. I'll continue.

The next question, and I

believe this was No. 7. On Page 9 of your

prefiled testimony you state that there is

currently no chloride standard applicable to

the secondary contact and indigenous aquatic

life uses segment of the CAWS and lower Des

151

Plaines River. Proposed chloride water

quality standard is exactly the same as a

current general use water quality standard of

500 milligrams per liter. The general use

chloride standard has not been updated since

the original adoption. U.S. EPA's National

Criteria Document recommended a criterion

maximum concentration of 860 milligrams per

liter and a criterion chronic concentration

of 230 milligrams per liter. Given that you

indicate that the federal criterion allows a

maximum concentration of 860 milligrams per

liter and given the highly urban environment

and limited aquatic habitat found in the

CAWS, my question is what's the rationale for

setting the CAWS standard at 500 which is

over 40 percent lower than the current

federal criterion?

MR. TWAIT: This was partially based

on the work that is ongoing for the sulfate

rulemaking. The proposed sulfate water

quality standard is based on a maximum

chloride limit of 500. The Agency believes

that this value of 500 is basically

152

equivalent to the national criteria since

it's a one-number standard between acute and

chronic numbers of 860 and 230.

MR. ETTINGER: 860 is an acute number,

230 is a chronic number, so doesn't that make

a difference in the way when we write permits

to gauge compliance.

MR. TWAIT: It does. The chronic

number is a not to exceed ever, and -- or the

acute standard is not to exceed, the chronic

standard can be met by an average. The acute

standard has to have -- You can only have

mixing in a zone of initial dilution, and the

chronic standard can use the entire mixing

zone with a one number standard we allow that

to use the entire mixing zone.

MR. POLLS: How many samples do we

need to determine if the chronic is complied?

MR. TWAIT: I think one value above

not to exceed limit would be a violation.

MR. POLLS: I thought the acute was

always one sample instantaneously, the

chronic is four samples. How does

Illinois -- How do you know if you're in

153

compliance with the chronic? Is it one

single sample?

MR. TWAIT: For this we're not

proposing a chronic, but for a chronic

standard it would be based on four

consecutive samples that are representative

of the time period that you're taking.

MR. ANDES: If you're not proposing

chronic, but the federal acute is 860,

explain to me again why -- I understand

that -- I understood the sulfate issue,

although we can come back to that. But I

want to understand again if the 500 is

something that's going to be tested on a

one-time basis and the federal number is 860,

why the 500 instead of the 860 if we're not

doing chronic.

MR. TWAIT: Well, with the national

criteria document, if you want to adopt the

860, I believe the 230 as a chronic standard

comes with it.

MR. ANDES: Can you cite me to where

they demanded that you have to do both? Is

there support for saying, well, we can only

154

do the 500 and substitutes for both of them,

but if we had the 860 we have to do the 230

as well?

MR. TWAIT: I'm not sure of the

answer. I'm not quite sure I can answer

that, but my understanding is -- well, I'll

just say I don't know.

MR. ANDES: Okay. On the -- Let me go

back for a second to just to clarify one

thing. On the cadmium issue we've brought

information showing that the concern we had

exists with regard to the proposed standards,

not only the standards that were suggested

earlier. So we'll provide that information.

I think that's been provided to the Agency

before, but we'll -- we will -- it has not?

We will provide that.

Next question, No. 11, the

seasonal ammonia standard is for the period

of March through October, while the enhanced

seasonal DO standard is March through July.

If both are supposed to be protective of

early life stages, why do they not have the

same time period?

155

MS. WILLIAMS: What number did you

say, Fred? I'm sorry.

MR. ANDES: Eleven.

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

answer that specific question. The general

use rulemaking for ammonia and dissolved

oxygen are both on the record, they're both

available on the Board's web page. The

decision about why those particular months

would apply separately --

MS. WILLIAMS: I mean I don't know --

I hate to answer this question, because it's

technical, but I was involved in both and

there were very specific factors brought out

in both about why different seasons were

appropriate. And there's support in the

different criteria documents for different

levels of protection that -- Roy may be able

to explain the DO a little bit better why we

came up with that number. And also from a

practical standpoint the critical periods

were different as well, but.

HEARING OFFICER TIPSORD: Can you tell

me, Miss Williams, if that was delineated in

156

the Board's opinions --

MS. WILLIAMS oh, absolutely, in each

one. In ammonia opinion which, I don't know,

is that 2002? I think the ammonia opinion

was from 2002 and then, of course, the DO

opinion is only a couple months old.

MR. ANDES: I'm trying to understand

the difference.

MS. WILLIAMS: And I guess I'm just

trying to explain it's complicated, and I'm

not sure --

MR. ANDES: That doesn't mean we don't

get an explanation.

MS. WILLIAMS: I think I answered your

question.

MR. ANDES: I didn't hear the

explanation.

MEMBER RAO: I recall in one of the

hearings in DO there was extensive discussion

about the early life stages between ammonia

and DO, because the same question was asked.

And if you go back, you will hopefully find

those cites and maybe you can provide it.

MR. ANDES: That would be helpful.

157

MS. WILLIAMS: The District was at

that hearing, too, right, Mr. Rao?

MEMBER RAO: Yes.

HEARING OFFICER TIPSORD: But in

fairness, Mrs. Williams, this is a different

rulemaking, and it's a prefiled question. So

we really need to --

MS. WILLIAMS: Absolutely, absolutely.

We will submit citations to the rulemakings.

I think Mr. Rao is right. We can just use DO

to kind of explain both.

HEARING OFFICER TIPSORD: And if it's

transcripts, you need to provide pages of the

transcripts.

MS. WILLIAMS: Absolutely.

HEARING OFFICER TIPSORD: Thank you.

MR. ANDES: The next question, No. 12,

and I'll rephrase it a bit. If there are

excursions from the mercury standards and

sources other than wastewater discharges are

the likely cause for that, how does the

Agency expect to deal with that issue?

MR. SULSKI: We will continue with our

programs of fish flesh analysis and

158

consumption advisories. We have missions

reductions programs, TMDLs may be necessary.

We will continue with our programs of

nonpoint source pollution control BMPs,

household hazardous waste collection

programs, mercury thermometer exchange

programs, a list of a few of the -- of our

intentions.

MR. ANDES: I guess the scenario is if

there are seepages (sic.) in the water body

on mercury, and because a lot of sources use

that water and then recirculate it and put it

back in, their discharges will also end up

with violations on mercury even if they

haven't actually contributed any mercury.

How would the Agency deal with those issues?

MR. TWAIT: Well, for those issues

where they're withdrawing water and not

adding mercury and trying to discharge, then

there are -- I believe it was 304-103. Let

me make sure of that. That deals with

background concentration. Yes. It's 304.103

that deals with background concentrations

when you're withdrawing water from a water

159

body and discharging it back to the same

water body without adding the constituent to

it.

MR. ANDES: Okay. I believe I'm done

with our questions on those issues, and I

have a few left on recreation and bacteria

issues. These are follow-up questions.

MS. WILLIAMS: Are you done with the

prefiled and you want to ask follow-up?

MR. ANDES: I believe I am. I'm done

with the prefiled questions.

On recreation and

disinfection, if the Agency, and I'm

paraphrasing earlier testimony, does not know

exactly the extent to which disinfection will

reduce risk to recreators, how will the

Agency measure the effectiveness of

disinfection in addressing water quality

issues and attainment of the recreational

uses?

MR. TWAIT: I think to measure the

effectiveness it would be to compare bacteria

measurements that are prechlorination versus

postchlorination in the receiving stream and

160

try to pick out days that CSOs were not

happening to make that type of comparison.

MR. SULSKI: It's a two-prong

question, if I understand you, and correct me

if I don't. The effectiveness of

disinfection will be gauged at the effluent.

So there will be a permit limit and there

will be monitoring at the effluent. The

effectiveness in the waterway, we're not

proposing a water quality standard, so it's

hard.

MR. ANDES: So the real issue is --

MR. SULSKI: You don't have a

standard.

MR. ANDES: So the question is other

than reducing bacteria levels in the

discharge, has the Agency assessed and how

will the Agency assess whether that

disinfection actually translates into water

quality that effectively is protective given

all the other sources?

MR. ESSIG: We would not assess at

this point, since there's no water quality

standard assessment in terms of the

161

integrated report.

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: Just to clarify before

you go on. Mr. Twait, you said that you

would assess impacts pre and

postchlorination. Isn't it correct that the

Agency's regulatory proposal does not mandate

chlorination, it mandates disinfection?

MR. TWAIT: That's correct. I guess

what I should have said is if you want to

measure the effectiveness of chlorination on

the receiving stream, the way to do it would

be -- I'm sorry -- disinfection. I'm way too

tired. Would be to measure the receiving

stream before and after chlorination --

disinfection. I'm sorry.

MR. HARLEY: But under the Agency's

proposal, the regulated entity would have the

option to choose the method of disinfection

so long as it met the numeric limit; is that

correct?

MR. TWAIT: Absolutely.

MR. HARLEY: Thank you.

HEARING OFFICER TIPSORD: Mr. Andes?

162

MR. ANDES: Thank you. Let's go to

testimony on disinfection issues.

Particularly on January 29, Mr. Sulski talked

about recreational activities that occur and

that the Agency has to protect. And it's on

pages 223, 224, and particularly discusses

the Agency's responsibility to protect water

quality versus physical safety.

And the first question I had

is it correct to say that the Agency views

its responsibility as ensuring water quality

that protects recreational uses but does not

concern itself with physical safety to the

recreational users?

MR. SULSKI: We're not a physical

safety agency.

MR. ANDES: Who is?

MR. SULSKI: The Chicago Police Marine

Unit, the U.S. Army Corps of Engineers slash

Coast Guard, I'm not sure which branch is

involved there.

MR. ANDES: And has the Agency

discussed these issues with those agencies to

talk about possible physical safety risks

163

from increased recreational uses of these

water bodies?

MR. SULSKI: We discussed the proposed

recreational uses with those agencies to see

the intent of the meeting, and it is -- the

minutes of the meeting are included. We

discussed whether any of our intentions in

the proposal interfered with any regulatory

responsibilities of theirs.

MR. ANDES: And that was one meeting?

MR. SULSKI: Yes.

MR. ANDES: And that was a number of

years ago?

MR. SULSKI: Yes.

MR. ANDES: Do you remember -- I know

it's in the record. I just don't remember

exactly when it was.

MR. SULSKI: It was in the 2003/2004

time frame.

MR. ANDES: Okay. Now, it is accurate

to say that one of the factors that the

Agency is required to consider in doing UAA

are physical factors, correct?

MR. SULSKI: Correct.

164

MR. ANDES: I'm just thinking of

whether I have anything to follow up beyond

that.

Since that meeting, there have

been some changes in the proposed uses. Am I

right?

MR. SULSKI: Since that meeting?

MR. ANDES: Since that meeting with

the other agencies, the proposed standards

came out and reflect some different use

designations than were being discussed at

that point. Some areas were changed from

nonrecreation to incidental contact, I

believe.

MR. SULSKI: Correct.

MS. WILLIAMS: But we didn't have that

at the time, did we?

MR. SULSKI: No. The question is did

they change since we had those meetings. And

the answer is yes, there were some changes in

the use -- recreational use designation.

MR. ANDES: And there have been no

further meetings since then?

MR. SULSKI: No.

165

MR. ANDES: I believe we're done.

HEARING OFFICER TIPSORD: Thank you

very much. Mr. Safley for ExxonMobil?

MR. SAFLEY: Yes, ma'am. As I stated

yesterday, the majority of our questions have

been asked and answered. We have seven or

eight that are left.

MS. DIERS: ExxonMobil.

MR. SAFLEY: Tom Safley on behalf of

ExxonMobil. Once the Agency gets a chance to

pull out the documents, I'll direct you to

the questions.

The first question that we had

not had a chance to ask is on Page 5, Roman

Numeral II, C2 is the question. Per the Aqua

Nova UAA, it should say, the lower Des

Plaines River continues to be a highly

modified water body that does not resemble

its pre-urbanized state. Furthermore, the

UAA stated that while there were improvements

it could not find the lower Des Plaines River

to be capable of full attainment of the

aquatic life and recreational goals of the

Clean Water Act or unimpacted waters in the

166

foreseeable future. Since this contradicts

the findings of the later Yoder report used

for the Agency's proposal, what findings have

required the Agency to propose water quality

standards more stringent than the State's

current general use requirements for this

water body?

HEARING OFFICER TIPSORD: And just for

purposes of the record, we're now talking

about Attachment A the UAA on the lower Des

Plaines?

MR. SAFLEY: Yes.

HEARING OFFICER TIPSORD: And the

Yoder report you were referencing is?

MS. WILLIAMS: Can you hang on a

second, Tom?

MR. SAFLEY: Sure, of course.

MS. WILLIAMS: I think there's

something in your question that --

MS. DIERS: I believe it's Exhibit 15.

Is that what you've concluded?

MR. SAFLEY: I'm sorry. I don't have

that.

HEARING OFFICER TIPSORD: It was

167

attached to his testimony, right.

MR. SAFLEY: Yes.

HEARING OFFICER TIPSORD: Yes, it's

Exhibit 15 or 16. I'll find out.

MR. ETTINGER: I just want to object

to the presumption in the question that the

standards proposed are necessarily more

stringent than the general use standards.

MS. DIERS: I believe it's 15.

HEARING OFFICER TIPSORD: Well,

actually, the question is -- Let me just

clarify so I'm sure I get what you're

objecting to, Albert.

MR. ETTINGER: It says given that

the --

MR. SAFLEY: And to respond to the

objection, it's my understanding from the

testimony in the rulemaking that there are at

least some standards that are proposed,

temperature and some other standards that are

based on national -- on U.S. EPA guidance

that are more stringent than the current

general use standards, for example.

MR. ETTINGER: And there are some that

168

are less.

MR. SAFLEY: Understood. And I'm

focussing on -- The question should have been

rephrased. I'm focussing on those where the

standard being proposed by the Agency is more

stringent than general use.

MR. SULSKI: I would need some -- We

need some clarification. Because when you

say highly modified water body, if you could

tell us where that says that. Because we

need to find out what context that you

mentioned that. Because when we're talking

about the lower Des Plaines, we have two

distinct water bodies that are -- that

there's a great disparity between.

MR. SAFLEY: Sure. And the references

I have for that first sentence are Pages 1-4

and 1-16 of the Aqua Nova UAA.

MR. SULSKI: And the other statement,

your question, it did not find the lower Des

Plaines River to be capable full attainment

of aquatic life and the recreational goals of

the Clean Water Act for unimpacted waters in

the foreseeable future, you need to know

169

where you're getting that from. Because,

again, there's two reaches here in the lower

Des Plaines and there are different

statements and conclusions that apply to

each.

MR. SAFLEY: I think in response,

Mr. Sulski, to your request for citations on

that second sentence, the easiest place to

look is Chapter 9, Pages 9-1 and 9-2. And

certainly I understand your point that

there's a different discussion there with the

between the Brendan Pool and the Dresden

Island Pool, and the question may have not

sufficiently differentiated.

MS. WILLIAMS: Are you interested in

both pools, Tom, or are you asking about one

pool or the other? Maybe that will help us

answer.

MR. SAFLEY: Let me try to get around

this issue and attack this in a different

way, by starting with this question: In

evaluating the lower Des Plaines, and the

Agency can separate the answer by pool if

that makes it easier, did the Agency rely on

170

both the Aqua Nova findings and the findings

of Chris Yoder?

MR. SULSKI: Yes.

MR. SAFLEY: Okay. Does that answer

apply to both pools or to one or the other?

MR. ESSIG: I'm sorry. What was your

last question?

MR. SAFLEY: When responding yes to

that question, the Agency relied on both Aqua

Nova's findings and the findings of Chris

Yoder. Does that answer apply to the entire

lower Des Plaines or is that answer confined

to only a portion, just to clarify since

we've raised this issue.

MR. TWAIT: Chris's report, the

thermal portion of that provided options for

the temperature water quality standard and

not specifically for a designated use.

MR. SAFLEY: Right.

MR. SMOGOR: Are you referring also to

the other Yoder report that addresses --

MS. WILLIAMS: What other Yoder

report?

MR. SMOGOR: I'm sorry. It's not a

171

Yoder report. You're right. It's an MBI

report. I guess we're not clear when you say

the Yoder information what information you're

receiving.

HEARING OFFICER TIPSORD: I think he's

referring to Exhibit 16 which was attachment

to the testimony by Mr. Yoder, and that was

in response Mr. Twait gave --

MR. SAFLEY: It looks like we're both

waiting on the other.

MR. TWAIT: I'm sorry. Can you just

ask your question in a --

MR. SAFLEY: Sure. And now that we've

clarified which Yoder report we're talking

about, I'm giving Albert some credit here, at

least. Did the Agency rely on that

Exhibit 16 as well as the Aqua Nova findings

in evaluating the entire portion of the lower

Des Plaines River that is at issue in this

rulemaking?

MS. WILLIAMS: I'd like to clarify

exhibit numbers real quick again, because I

think it will help. Exhibit 15 and

Exhibit 16. Exhibit 15 is Mr. Yoder's

172

temperature report specific to the lower Des

Plaines River, while Exhibit 16 is the report

for SANCO (ph.) that he relied on developing

Exhibit 16. But we're assuming we're talking

about the Yoder report which is Exhibit 15.

HEARING OFFICER TIPSORD: Sorry. My

fault.

MR. TWAIT: And the Agency did rely on

that report for Branden Pool and Upper

Dresden Island Pool, and the Agency relied on

the data of the UAA report that was done by

Aqua Nova.

MR. SAFLEY: Does the Agency consider

the findings of those two different sources

to be consistent regarding their conclusions

on the conditions of those waters?

MR. TWAIT: The thermal report, as I

mentioned, did not give -- It gave

temperature options for those systems, and

the options ranged from consistent with Clean

Water Act, what he considered general use

with 47 species all the way down to eight

species, but those were options provided in

that report. And he did not -- Mr. Yoder did

173

not make a recommendation as to which numbers

to use.

MR. SAFLEY: Okay. And I think what I

should do is direct the Agency's attention to

Page 22 of the statement of reasons. This

may be what's causing some of the confusion,

and obviously we should have included the

citation here in the question. But this is

where the language that's included in these

first two sentences comes from. The

second -- The first full paragraph on Page 22

of the statement reads, it's the second

sentence, it is clear from the UAA that the

lower Des Plaines River continues to be a

highly modified water body and does not

resemble its pre-urbanized state. And then

further on, the last sentence in that

paragraph, while there has been improvement

that potential exists for additional

improvement, the UAA did not find the lower

Des Plaines River to be capable of full

attainment of the aquatic life and recreation

goals of the Clean Water Act for unimpacted

waters in the foreseeable future.

174

And I think what I'm picking

up from your answers is that those

statements -- and I guess this is what I want

to ask: Does the Agency agree with those

statements or should those statements have

been qualified depending on what pool in the

lower Des Plaines we're talking about? Maybe

that's what's causing my confusion.

MS. WILLIAMS: Yes. Thank you.

MR. SAFLEY: So that's my question.

Does the Agency agree with -- these

statements appear to be directed to the

entire lower Des Plaines. Is the Agency in

agreement with that, or does the Agency feel

those statements --

MS. WILLIAMS: No. And I think we've

already discussed that this is a little

confusing. If you want us to -- We should

probably go through that again.

MR. SAFLEY: I don't recall.

MR. SMOGOR: We believe that the UAA

has -- did conclude that the Clean Water Act

aquatic life goal is attainable in the Upper

Dresden Island Pool portion of the lower Des

175

Plaines River, and that's a clarification for

this statement.

MR. SAFLEY: That obviously the

prefiled questions were written before the

testimony, and we hadn't linked that up, so

let me skip to our next question. I think

that clears up the confusion.

Our next question has not been

asked. It's on Page 8 of our prefiled

questions. It's Question No. 8. Given that

the Aqua Nova's UAA proposed a quote modified

use, closed quote, standard for the lower Des

Plaines River due to its current use, why has

the State's rulemaking proposal set general

use water quality standards, and I would add

or more stringent water quality standards,

for each of the following constituents. And

then there's a list there of ten or twelve

constituents.

HEARING OFFICER TIPSORD: Which you

need to read.

MR. SAFLEY: I'm happy to. I didn't

know if I wanted to throw them all out there

or go one by one or how the Agency wanted to

176

attack that.

MR. SMOGOR: Again, just to clarify,

when you say that the Aqua Nova UAA proposed

a, quote, modified use, unquote standard for

lower Des Plaines River, we'd like to clarify

that the UAA, even if they used those terms

modified use, is not saying that aquatic life

use at Clean Water Act levels cannot be

attained in Upper Dresden Island Pool.

MR. SAFLEY: Okay. Well, let's just

make the question a broader one then cutting

off the first clause. What is the basis for

the State proposing general use or stricter

water quality standards for each of the

following constituents? And we can start

with arsenic.

MR. TWAIT: Well, I first would like

to start off by saying that it was a

management decision to adopt the most current

criteria available and note that the majority

of these current criteria can be met in a

waterway currently.

MR. SAFLEY: If you can identify which

of the ones on the list could be met

177

currently, please.

HEARING OFFICER TIPSORD: Before you

do that, we need to read the list in. We

never read the list in. We said arsenic.

Now he's going to start giving a subset of a

list that we don't have in the --

MR. SAFLEY: That's fine. The listing

here is arsenic, cadmium, chromium, copper,

cyanide, lead, mercury, nickel, total

residual chlorine, zinc, benzene, ethyl

benzene, toluene and xylene.

HEARING OFFICER TIPSORD: Thank you.

Go ahead.

MR. TWAIT: The arsenic standard is

not based on general use. It is based on the

National Criteria Document which is more

current than our existing general use

standard. Cadmium is the same.

MS. WILLIAMS: I just want to clarify.

You asked him -- We read the list in, but

right before you asked him to identify which

ones can be met, correct?

MR. SAFLEY: Yes.

MS. WILLIAMS: Is that more important

178

than him going through what's based on what?

HEARING OFFICER TIPSORD: I think we

want both in the record.

MR. SAFLEY: Yes. So that's why I

hadn't --

MR. TWAIT: I'll start out by saying

that according to the UAA report, all of

these can be met. Arsenic is based on the

National Criteria Document, cadmium is the

same as the general use, chromium is based on

the National Criteria Document, copper is

based on the National Criteria Document,

cyanide is the same as general use, lead is

the same as general use, mercury is the same

as general use, mercury aquatic life is the

same as general use -- Let me back up.

Mercury aquatic life is based on the national

criteria, mercury human health is based on

the general use. The nickel is the same as

general use, total residual chlorine is the

same as general use, zinc is the same as the

general use. And the four remaining -- well,

benzene, ethyl benzene, toluene, and xylene

are based on general use.

179

MS. WILLIAMS: Just to repeat, you

think all of those standards are currently

being met in these waters?

MR. TWAIT: According to the analysis

by the UAA contractor, yes.

MR. SAFLEY: That's what I was going

to next ask you about. On Page 2-32 of the

Aqua Nova UAA, there is a Table 2.6,

Parameters Meeting Illinois General Use

Standards.

HEARING OFFICER TIPSORD: That's

Attachment A.

MR. SAFLEY: And Federal Criteria.

And I see some of those, these parameters

here: Arsenic, cadmium, chromium, trivalent,

cyanide, lead, nickel, and zinc. However,

there's a discussion on the next couple of

pages starting at 2-33 and 2-34 of parameters

that do not meet the Illinois, at least the

Illinois general use standards or threaten,

it says. Included there are copper, mercury,

and then I was having trouble locating

information on total residual chlorine. So

that's what I want to try to understand is

180

these pages from the Aqua Nova UAA, in light

of your response that they're all in -- your

understanding is they're all currently

meeting the proposed standards?

MR. TWAIT: For the copper, in

Appendix A2-34, Table 2.7, the District

samples have a little note there that they

measured total metals only and water quality

standard is in dissolved. And if you flip

back to Page 2-32 -- I don't see a list of

where the Agency samples came off.

As this question relates to

copper, I'll refer you to Page 72, our

statement of reasons. In the lower Des

Plaines UAA study, copper was identified as a

parameter that did not meet the water quality

standards at the locations on the lower Des

Plaines River analyzed by the MWRDGC while

the Illinois EPA location indicated

compliance. Copper compliance was not found

to be concerned in the CAWS. And the MWRDGC

samples were based on total copper, whereas

IEPA's samples were based on dissolved.

MR. SAFLEY: So the Agency felt that

181

it could rely on its dissolved copper samples

and that based on that, copper was in

compliance in the lower Des Plaines?

MR. TWAIT: That was the decision that

was made.

MR. SAFLEY: What about mercury?

MS. WILLIAMS: Which one? Mercury

human health or --

MR. SAFLEY: Maybe we have a

difference in terminology between the Aqua

Nova UAA and the Agency. But, again, at

Table 2.7 on Page 2-34 Aqua Nova lists

mercury as a parameter not meeting the

Illinois general use standard or threatened.

MR. TWAIT: With regards to mercury,

when I go back and look at this, MWRDGC data

was once again total metals. However, I

don't know that the Agency's -- wait a

minute. For mercury I'll refer you to

Attachment A, Page 2-34, and it's in his

text. It's not a table, but he does list the

reference site and five particular samples,

four of them are MWRDGC sampling points, and

for the acute standard, the compliance is 96

182

percent or above. And for the chronic, for

the Agency samples, all the measurements were

below the detection level and the compliance

of the chronic standard was 95 percent and

above for the district samples.

MR. SAFLEY: Does that mean that the

Agency considers compliance of 95 percent or

above to mean that the mercury standard is

currently being met in the lower Des Plaines?

MR. TWAIT: I believe the Agency's

decision was that that was not any worse than

anywhere else in the rest.

MR. SAFLEY: What about total residual

chlorine?

MR. TWAIT: I don't believe that total

residual chlorine has been measured, although

total residual chlorine disappears pretty

rapidly from the environment meeting up with

organic and pathogens and will be removed

from the water. So it would be unlikely to

measure total residual chlorine unless you

were downstream of somebody that was

discharging chlorine.

MR. SAFLEY: And I certainly can't

183

take issue with the chemistry of it. But

your statement earlier that all of these

parameters, your understanding was, were

that the proposed standard were currently

being met in the lower Des Plaines. I'm just

trying to understand the basis of that

statement with regard to total residual.

MR. TWAIT: The basis of that

statement is that if you go out and measure

chlorine, if you're not within somebody's

mixing zone, chlorine will not persist in the

receivings --

MR. SAFLEY: What about with regard to

the betext (ph.) compounds?

MR. TWAIT: We do not take betext in

the receiving stream, so I was mistaken on

whether or not that would be in compliance

simply because the Agency doesn't know.

MR. SAFLEY: So not that you know

there's not compliance, the Agency just

doesn't have any information that it is in

compliance?

MR. TWAIT: Correct.

MR. SAFLEY: Okay. With regard to the

184

parameters other than the betext parameters

where the Agency has concluded that the water

body is in compliance, just to clarify, so

I'm clear, what the Agency is saying is if

the water body is in compliance with those

parameters, the Agency feels that it's

appropriate to propose either a general use

standard that would protect that compliance

or a more stringent standard, or I guess

without regard to how stringent the standard

that's from the latest national recreation;

is that correct?

MR. TWAIT: The Agency made the

decision that it was going to provide -- or

to have the most current standard, and it

really didn't matter whether it would be met

or not.

MR. SAFLEY: That's what I was trying

to understand was the nexus between whether

or not the -- or if there is a nexus, between

whether or not the parameter is in compliance

currently and whether or not the Agency went

with that current standard? And what you're

saying is the compliance was not an issue?

185

MR. TWAIT: Not directly, because we

were proposing water quality standards to

protect the use.

MR. SAFLEY: Okay.

MR. TWAIT: And I'll preface that with

cadmium, we did something a little bit

different. We didn't adopt the National

Criteria Document. We adopted the general

use.

MR. SAFLEY: Okay. And with regard

to -- when you say protection of use, I

understand you to be saying the aquatic life

use.

MR. TWAIT: Yes.

MR. SAFLEY: And so is it correct then

to understand that the Agency concluded as to

each of those parameters, either proposing

general use or the national criteria, it was

necessary to protect the use that the Agency

concluded should be met in the lower Des

Plaines River?

MR. TWAIT: Yes.

MR. SAFLEY: Going on to our question,

next Question 9, on what did the Agency rely

186

on deciding to propose general use water

quality standards for chlorides, iron,

selenium, and sulfates?

MS. WILLIAMS: We agree that we've

talked in detail about chlorides already?

MR. SAFLEY: That's fine.

MR. TWAIT: I'll quickly go ahead and

say chlorides and sulfates were proposed

rather than the existing total dissolved

solids. The iron standard is for general,

the current iron standard is less

stringent -- the current -- I'm sorry. The

current iron standard is becoming less

stringent with the proposal and the selenium

water quality standard is not changing from

the existing use.

MR. SAFLEY: Okay. So selenium is

not -- the selenium standard is not going to

change from the current secondary contact

selenium standard to the Agency's new

proposed selenium standard?

MR. TWAIT: They are the same.

MR. SAFLEY: And with iron, the

standard is becoming less stringent than the

187

current secondary use standard?

MR. TWAIT: Excuse me?

MR. SAFLEY: The iron standard

proposed by the Agency is less stringent than

the secondary use standard?

MR. TWAIT: That's what I have in my

notes. The current secondary contact, the

current secondary contact standard for total

iron is 2 milligrams per liter, and the

proposal for dissolved iron is one milligram

per liter.

MR. SAFLEY: Our next questions -- I'm

sorry.

MR. TWAIT: And the dissolved standard

for secondary contact is 0.5 milligrams per

liter. So it is becoming less stringent.

MR. SAFLEY: Thank you. Our next

questions that have not been asked are on

Page 9.

HEARING OFFICER TIPSORD: Mr. Safley,

we've been going about an hour and a half.

Let's take a ten-minute break.

(Short break taken.)

HEARING OFFICER TIPSORD: Let's go

188

back on the record. And we're continuing

with Mr. Safley and ExxonMobil.

MR. SAFLEY: Thank you, Madam Hearing

Officer. The next questions that we had not

asked are on Page 9 of our prefiled

questions. The first one is Roman Numeral

III, Question 11, which I realize deals with

chlorides which we've dealt a lot with. So

I'm not going to try to replow that ground.

I just wanted to clarify, yesterday we spent

a fair amount of time talking about chlorides

in the context of the Chicago Sanitary and

Ship Canal. And my understanding was that

the Agency was not aware of violations of the

proposed chloride standards in the Chicago

Sanitary and Ship Canal except in connection

with road deicing in the winter. Assuming

that's correct, would the answer from the

Agency be the same with regard to the lower

Des Plaines River?

MR. TWAIT: It would. I believe the

Agency's statement of reasons has indicated

that chloride is from removal of road salt.

MR. SAFLEY: And that that's true with

189

regard to the lower Des Plaines River as well

as the Chicago Area Waterway System?

MR. TWAIT: Yes.

MR. SAFLEY: I did want to follow up a

little bit with regard to the BMPs that we

talked about yesterday that were coming in

from municipalities. The question I had was

how -- does the Agency have a coordinated

approach to reviewing those BMPs, and, for

example, a list or a plan for how those BMPs

should be structured and what they should

contain, or is it being done by different

reviewers on a case-by-case basis kind of ad

hoc as they come into the Agency?

MS. WILHITE: If I just said yes, will

that cover it?

MR. SAFLEY: I tried to make it

complicated enough.

MS. WILHITE: The context we're

working on BMPs related to chloride is with a

TMBL for a couple of waterways presently. So

we're working with the parties, the

municipalities, IDOT mainly, townships to a

small extent to develop those BMPs, and it is

190

pretty much case by case with each of those

entities. Because basically the name of the

game is optimizing their road salt

application or looking for alternatives to

chloride base deicing stuff. Now, we have

had some conversation more broadly, and I'm

not sure where it's going to go because we're

seeing issues outside just those couple of

waterways. Whenever we look for chlorides in

the wintertime, it seems like we see them,

and we're also seeing them in groundwater.

So it could be that we develop a strategy

more broadly than just those TMBLs, but right

now that's what the focus is.

MR. SAFLEY: Is there, with regard to

the things that you mentioned, Miss Wilhite,

looking for alternatives to chloride-based

deicing, the other issues, does the Agency

have kind of a model plan that it applies or

at least a checklist of issues that it looks

for in these things, or is that determined by

whoever is reviewing that particular BMP when

it comes in?

MS. WILHITE: I'm not certain.

191

MR. SAFLEY: Okay.

MS. WILHITE: I think that I committed

yesterday to checking in to see how the

status of implementation is and whether we

had seen any measurable progress related to

that had this issue on the list.

MR. SAFLEY: Thank you. That was all

I wanted to follow up with regard to our

Question 11.

Our Question 12 begins

temperature. The proposal establishes a

period average and a daily maximum

temperature limit as opposed to the current

standard which includes only a daily maximum.

The rationale for the period average is that

it would recognize, quote, the realities of

within season temperature variations and the

thermal tolerances of fish, close the quote,

statement of reasons at 86. The period

average would change twice per month during

five months out of the year and monthly

during the rest of the year. Did Mr. Yoder's

study and the Agency's proposal take into

account the operational impact to a facility

192

that would be required to adjust its

discharge every two weeks for five months of

the year in order to comply with the changing

temperature limit?

MR. TWAIT: I don't think that the

Agency looked at how that would impact the

discharger specifically. But in reality they

would have to -- their DMR would have, during

certain months of the year, would have

bimonthly reporting requirement.

MR. SAFLEY: And the Agency did not

review any cost issues or operational impact

to facilities that would have a changing

period average temperature requirement; is

that correct?

MR. TWAIT: That is correct.

MR. SAFLEY: Thank you. Our next

Question 13, again, similar to some of the

discussion we had yesterday regarding the

Chicago Sanitary and Ship Canal, and the way

in which attainment or nonattainment would be

determined. And I just wanted to, rather

than ask you the question as is, just to ask

whether or not the discussion we had

193

yesterday about the information that the

Agency would consider, where that information

comes from, for example, instream monitoring

or other sources, and the way in which the

Agency, if it found a nonattainment

condition, would designate nonattainment by

segment as already designated in the

integrated list, whether the answer would be

the same or different for the lower

Des Plaines River than we talked about

yesterday for the Chicago Sanitary and Ship

Canal?

MR. ESSIG: That would be the same.

MR. SAFLEY: Thank you. One just

generic follow-up. That doesn't really fit

into the flow of our prefiled questions.

Miss Wilhite, we had a discussion yesterday

about your discussion with the Bureau of Air

regarding some of the issues that have been

raised in Corn Products' questions, and

during that discussion you mentioned the

Bureau of Air had responded in particular on

some issues regarding pH emissions as to a

couple of entities involved in this

194

rulemaking, and one is my client Corn

Products and also Midwest Generation. Did

the Bureau of Water having a discussion with

the bureau Of Air regard any other specific

dischargers who are involved in this

rulemaking?

MS. WILHITE: No.

MR. SAFLEY: Thank you. The last

question that we had not asked is on Page 10

of our prefiled questions. It's Roman

Numeral IV, Question 2. And I'm going to try

to alter it a little bit to avoid -- well,

first of all, so correct -- it mentions a

study by AIWA, which should have been IAWA,

the Illinois Association of Wastewater

Agencies. Is the Agency, the Illinois

Environmental Protection Agency, aware of a

water -- a study that's being conducted by

the Illinois Association of Wastewater

Agencies regarding classification of water

bodies in the State of Illinois at this time?

MS. WILLIAMS: We weren't sure

originally what you're referring to, but that

helps us now to understand the question.

195

MR. SAFLEY: That's why I wanted to

clarify it.

MS. WILHITE: Yes. I'm aware that the

Illinois Association of Wastewater Agency is

doing a series of work related to looking at

tiers in the classification of aquatic life

use for Illinois streams.

MR. SAFLEY: Okay. Does the Agency

have any information on what the plan

completion date of that study is?

MS. WILHITE: No.

MR. SAFLEY: Okay. Does that study

that's being performed by the IAWA relate at

all to the Agency's proposal before the Board

in this rulemaking?

MS. WILHITE: No.

MR. SAFLEY: The Agency does not

foresee any impact of the outcome of that

study to the rules that are currently before

the Board in this rulemaking?

MS. WILHITE: It's just too early to

tell. In their study they have not even

defined what sort of tiers they'd be looking

at. And so without that information, it

196

would be difficult to line it up with what

we're looking at here.

MR. SAFLEY: Okay. Does the Agency --

Would the Agency see any benefit to waiting

for the conclusion of that study before

finalizing this rulemaking?

MS. WILHITE: No.

MS. WILLIAMS: And I'd like to add, I

think we have talked about this generally

already. And, No. 1, we've said a couple of

times that this proposal was designed to

stand on its own going forward, so it

shouldn't have to be changed based on any

outcomes like that. I mean we can't say for

sure. It's too early, of course. But that

was the intent to let it outlast -- I don't

want to say outlast, but to stand alone and

move forward into the future with whatever

happens with that.

And, No. 2, as far as waiting,

we did talk also about the legal obligation

the Agency has to regularly revisit

designations that are lower than full aquatic

life use support. So we would be neglecting

197

that obligation because the same obligation

does not apply to general use waters. We

don't have a legal obligation to undertake

this tiered aquatic life use analysis in the

same way we do here.

MR. SAFLEY: Thank you. That

concludes our prefiled questions. Thank you.

HEARING OFFICER TIPSORD: Thank you.

Then I believe Mr. Ettinger had follow-up

based on Mr. Safley's questions yesterday.

MS. WILLIAMS: Scott was asked to do

some recalculation during the break and he

did that. Can we present that?

HEARING OFFICER TIPSORD: You sure

can.

MR. TWAIT: I did the recalculation

for hardness value of 140 milligrams per

liter, and the chronic standard is 0.0013

milligrams per liter which equates to 123

milligrams per liter -- I'm sorry -- 1.3

micrograms per liter which is significantly

more than -- which is greater than the MDL.

So as I was talking about it with the

District, I believe they were using the

198

national criteria document.

MS. WASSICK: Thanks. We'll

recalculate our tables then.

HEARING OFFICER TIPSORD:

Mr. Ettinger?

MR. ETTINGER: I believe yesterday

Mr. Safley was asking you about sulfate

standards and about the sulfate standards

applicable in the waters that we were

speaking of. And I believe Mr. Twait

referred to the livestock standard not being

applicable. Do you recall that testimony?

MR. TWAIT: Yes.

MR. ETTINGER: And the justification

for that was that there's no livestock water

in this system?

MR. TWAIT: That was the

justification, yes.

MR. ETTINGER: Did the Agency consider

the effect of sulfate on riparian terrestrial

wildlife?

MR. TWAIT: I believe that that

conversation came up. We -- I remember

having that conversation with Toby, Bob

199

Mosier, and Brian Cook. And Brian Cook and

Bob Mosier are working on the rulemaking for

sulfates currently. And we didn't -- They

didn't feel that there was enough data for

non -- for anything other than livestock

water.

MR. ETTINGER: Are you aware of any

threatened or endangered wildlife that live

in the CAWS or the lower Des Plaines?

MR. TWAIT: The only threatened, which

I think may no longer be threatened or soon

not to be threatened, taken off the list, is

bald eagles. There are a couple of them that

are in the area in the winter.

MR. ETTINGER: Are river otter listed?

MR. SULSKI: I don't know what their

status is.

MR. ETTINGER: Are you aware if there

are river otter living anywhere in the CAWS

or the lower Des Plaines?

MR. SULSKI: I am not.

MR. ETTINGER: Are you aware that down

the hallway it says that river otter are

threatened?

200

MR. SULSKI: I will take that path out

to my office.

MR. ETTINGER: Have you considered the

effect of human pathogens on river otter?

MR. TWAIT: I don't know that we

expect there to be a problem, but the answer

would be no.

MR. ETTINGER: Have you studied the --

Have you -- Strike that.

Have you reviewed any of the

reports regarding effects of sewage

discharges on sea otters in the Pacific

Ocean?

MR. TWAIT: No.

MR. ETTINGER: Are there any mussel

beds in the Chicago Area Waterway System or

the lower Des Plaines to your knowledge?

MR. SULSKI: I don't know.

MR. ETTINGER: The Agency chose to use

its current cadmium standard instead of the

new cadmium criteria document; is that

correct?

MR. TWAIT: That is correct.

MR. ETTINGER: Do you know whether the

201

new cadmium criteria document was developed

using mussel data?

MR. TWAIT: I do not think the mussel

data or any mussel data was involved in the

calculation of the national criteria, but

we're going to find it and look at it.

MR. ETTINGER: Why don't I hold that

question, unless you can check it real

quickly. We can all look at the national

criteria.

MS. WILLIAMS: We pulled Attachment

AA, so we should be able to find it now that

we found the attachment.

MR. SULSKI: While he's looking it up,

I failed to mention the propensity of the

black crowned night herring to use CAWS

waters.

MR. ETTINGER: Thank you.

MR. SULSKI: It's state listed.

MR. TWAIT: It does look like they

have some data for some mussels. It does

look like they had some mussel data, and they

have the data ranked and Table 3A of

Attachment AA, and it looks like there's -- I

202

see mussels ranked in toxicity 9, 11, and 10.

So there's eight species that are more

sensitive than mussels.

MS. WILLIAMS: Does that answer your

question?

MR. ETTINGER: Yes.

MR. TWAIT: And then they have some

snails.

MR. ETTINGER: Thank you. I have no

further questions. Okay.

THE ARBITRATOR: Okay. Does anybody

else have any follow-up right now? There's a

couple of housekeeping things. One,

Miss Franzetti had asked if you would explain

exactly what the -- or give us an idea of

what the data in Exhibits 38, 39, 40, 41, 42,

43. Is that correct, Miss Franzetti?

MS. FRANZETTI: I didn't remember 38,

but you may be right.

HEARING OFFICER TIPSORD: Well, 38 and

39 both are R&D reports, then 40, 41, 42, and

43 are ID & R survey sheets, so.

MS. WILLIAMS: Are you specifically

interested in --

203

MS. FRANZETTI: I was actually

focussed on all of these data sheets for the,

it looks like the fish surveys, which I --

HEARING OFFICER TIPSORD: Which are

like 40, 41, 42, and 43.

MS. FRANZETTI: Exactly. And as I

mentioned previously, if you could, for the

ones that have numerous sampling stations,

and it may not be apparent, I'm just, for

example, I'm looking at 41, because I seem to

have misplaced 40, and that's got a number of

sampling stations. And I just don't know

from looking at it whether all of those are

within the UAA area, and, if so, which are.

HEARING OFFICER TIPSORD: Go ahead and

start with 40. Forty is the Illinois

Department of Natural Resources DuPage River

Basin Survey Stations, and that just lists --

starts with gizzard chad and then lists

across the top several of the DuPage River,

so.

MR. ESSIG: Just to start with,

Exhibit 40 was submitted in relation to the

information regarding white suckers and

204

stonerollers within the basin.

MS. FRANZETTI: White suckers and?

MR. ESSIG: Stonerollers.

MS. FRANZETTI: As simply as some

evidence that they're present in the basin?

MR. ESSIG: Right.

MS. FRANZETTI: These are not, though,

UAA waters, right?

MR. ESSIG: They're tributary to the

UAA waters.

MS. FRANZETTI: Tributaries to.

HEARING OFFICER TIPSORD: Tributaries

to the lower Des Plaines River and Chicago?

MR. ESSIG: Yes.

MR. POLLS: Isn't it true they're in

the lower -- aren't they below the I55

bridge?

MR. ESSIG: Yes, they are.

MR. POLLS: The DuPage River does not

come within the UAA area. So technically

they're not in this basin, the adjoining

basin.

MR. ESSIG: They're not part of this

rulemaking.

205

MS. WILLIAMS: Just to clarify, and I

may be wrong, but my understanding of why we

were provided this data, I believe Howard was

asked the question what did he look at

regarding our decision to include white

sucker as a species on the RAS list. And he

threw out a bunch of data that he looked at

to suggest it could thrive there, and this

was the data he referenced.

MS. FRANZETTI: No. We appreciate

that. And it's just I mean a little bit --

We're trying to short-circuit what might need

to be questioned after we review it. So to

at least cover here, which I'm sure you'll

appreciate, you know, what -- exactly what

you just said, Ms. Williams, in terms of how

you used it. But then we may have questions

like this to clarify how the data applies or

perhaps doesn't to the UAA areas.

MS. WILLIAMS: I just don't want it to

be confused that he looked at this as part of

the use designation process itself. I don't

think that was his testimony, this particular

exhibit.

206

MS. FRANZETTI: I understand the

distinction you're making, but it sounds like

it may have influenced the representative

species list.

HEARING OFFICER TIPSORD: Would it be

possible for us to get in a later filing from

the Agency, preferably before the additional

hearings, a key to explain -- I mean you have

GB-01. I assume that those are keys to a

sampling?

MR. ESSIG: Those are station

locations, yes.

HEARING OFFICER TIPSORD: Could you

get us like even a thing that says G-07 is at

this location?

MR. ESSIG: Yes.

HEARING OFFICER TIPSORD: Could we get

that from you?

MR. ESSIG: Yes.

HEARING OFFICER TIPSORD: Because I

know that Miss Franzetti had asked and wants

to know which of these are in the rulemaking,

but that is likely to come up again later.

If you have the key, we'd have it in hand.

207

MS. FRANZETTI: I agree.

HEARING OFFICER TIPSORD: That's for

all four of the exhibits: 40, 41, 42, and

43.

MS. DIERS: We can do that.

HEARING OFFICER TIPSORD: Thank you.

Could we possibly get that as soon as within

the next couple of weeks before prefiled

testimony is due?

MR. ESSIG: Oh, yeah.

MS. DIERS: Yes.

MS. FRANZETTI: Who is going to take

on Exhibit 41.

MR. ESSIG: In terms of? Exhibit 41

is fish data collected on the Des Plaines

main stem by Illinois Department of Natural

Resources. The stations range from centrally

near the Wisconsin state line down to

Lockport in the upper Des Plaines River above

the sanitary ship canal.

HEARING OFFICER TIPSORD: So none of

these were taken in the CAWS or the lower Des

Plaines that's on 41?

MR. ESSIG: No. Well, the Des Plaines

208

River is tributary to the Branden Pool.

HEARING OFFICER TIPSORD: Right. But

didn't you just say they were from Wisconsin

to --

MR. ESSIG: Wisconsin state line, but

it's --

HEARING OFFICER TIPSORD: Right. But

it's all upstream of what we're looking at

here?

MR. ESSIG: Yes.

HEARING OFFICER TIPSORD: Thank you.

Sorry, Miss Franzetti.

MS. FRANZETTI: I never mind your

assistance.

MR. ESSIG: Do you have any other

questions on 41?

MS. FRANZETTI: No. Well, I guess we

should just clarify, but I'm assuming it's

the same as the case. This is, again,

similar to Exhibit 40, you looked at this

data just in terms of both the white sucker

and the stoneroller?

MR. ESSIG: Yes.

MS. FRANZETTI: Same thing on

209

Exhibit 42?

MR. ESSIG: Yes. Exhibit 42, now

these are direct tributaries to the Des

Plaines River which of those listed, the only

ones that would be applicable would be

Hickory Creek and -- Hickory Creek and

Jackson Creek in terms of being a tributary

to the lower Des Plaines within the study

area.

MR. POLLS: Is that tributary to the

lower Des Plaines?

MR. ESSIG: Yes. I will get you

locations for all these sites.

MR. ETTINGER: You're saying Hickory

Creek, Manhattan Creek, and Jackson Creek are

tributary to the lower December Plaines?

MR. ESSIG: Manhattan is tributary to

Jackson.

MR. ETTINGER: But Jackson Creek comes

in at Joliet, so.

MR. ESSIG: It comes -- Jackson Creek

comes in just upstream of I55.

MR. ETTINGER: So it's tributary to

this area?

210

MR. ESSIG: Yeah.

MR. ETTINGER: Indian Creek comes in

where?

MR. ESSIG: Up in this area, Cook

County.

MR. ETTINGER: Salt Creek is in DuPage

County. Is that the DuPage Salt Creek?

There's a Salt Creek in every county in

Illinois? Which Salt Creek is this?

MR. ESSIG: That's the one that goes

through DuPage and Cook County. These are

all included because they were part of the

data set. I didn't look at all of these

sites, but the ones that were more related to

the study area.

MS. FRANZETTI: You know, Mr. Essig,

just to make it a little clearer, why don't

you read off the sampling station numbers

that are above the names like Hickory Creek

and Salt Creek that you did -- you were

looking at and thought were relevant.

MR. ESSIG: GC-03, GG-06 and GG-04. I

think in that case I looked at the furthest

downstream one, and at this point I don't

211

recall based on the station code which one

that was.

MS. FRANZETTI: As between GG-06 and

GG-04?

MR. ESSIG: Yes. Those would be the

ones I've looked at.

MR. ETTINGER: Salt Creek, as I

recall, is a tributary to the DuPage River

and the DuPage River --

MR. ESSIG: No. It's Salt Creek is a

tributary the Des Plaines.

MR. ETTINGER: I'm sorry. The Des

Plaines River, the upper Des Plaines River.

MR. ESSIG: Yes.

MR. ETTINGER: I'm sorry.

HEARING OFFICER TIPSORD: That's the

other Salt Creek.

MR. ETTINGER: I think I was genuine.

This is the Elmhurst Salt Creek.

HEARING OFFICER TIPSORD: Are we ready

to go to 43?

MR. ESSIG: Forty-three is the

Kankakee basin. Again, this one is outside

of the study area. The only station that I

212

did look at on this one, I think, I believe

was the furthest downstream one which would

be F-02.

MS. FRANZETTI: And, Mr. Essig, why

did you think that data was relevant?

MR. ESSIG: Well, at that point

because I was just looking at what was

tributary to the Des Plaines River as opposed

to not just the --

MS. FRANZETTI: UAA area?

MR. ESSIG: Yes.

MS. FRANZETTI: Okay.

HEARING OFFICER TIPSORD: Any

additional follow-up on those exhibits?

Okay. With that, are there

any additional exhibits that the Agency has

for us today?

MS. DIERS: Yes. We were asked to

provide comments on our January 2008

proposal -- 2007 proposal, and we put it

together, Marie, but I can separate out.

There's seven comments in this package that

we put together that we received. Do you

want to do it one by one exhibit?

213

HEARING OFFICER TIPSORD: Let me take

a look at it. As much as I hate to type in

exhibit numbers, it's probably going to work

best if we individually number them. So for

the record, we have a U.S. EPA Region 5

comment received May 7, '07, dated May 3,

'07, that we will mark as Exhibit 49.

MS. FRANZETTI: And I'm sorry to

interrupt, Miss Tipsord, but in terms of what

these are, these are all of the comments the

Agency received on its January 2007 draft?

MS. DIERS: That went out to the

State --

MS. FRANZETTI: Proposal on the UAA.

Okay.

MS. WILLIAMS: I think specifically we

may have been talking about things that came

in after stakeholder meetings. But I mean I

think this is everything, things that came in

at the stakeholder meetings and after.

MS. FRANZETTI: I guess the only thing

I point -- that's why I was asking. Because

I do think, just speaking for Midwest

Generation, we did put on a Power Point

214

presentation at the public meetings, and

that's already in the record exactly. So

just not to omit that it's already been made

part of the record.

HEARING OFFICER TIPSORD: Then as

Exhibit 50 I will mark a document that has

draft 2/12/07 at the bottom, first line is a

new Illinois use designation entitled the,

quote, Invasive Species Area Zone, closed

quote. That will be marked as Exhibit 50, if

there is no objection. Seeing none, we'll

mark that as Exhibit 50. But we don't know

who this is from.

MS. FRANZETTI: I believe that's from

Midwest Generation. Sorry.

HEARING OFFICER TIPSORD: Midwest

Generation. Does the Agency agree?

MS. DIERS: Yes.

HEARING OFFICER TIPSORD: Would it be

okay if I put Midwest Generation on this?

MS. DIERS: That's fine.

MS. FRANZETTI: As long as you add an

A plus next to it.

HEARING OFFICER TIPSORD: I've got

215

gold stars at the office.

MS. FRANZETTI: I like those, too.

MS. DIERS: The next one, Marie, we

clipped together, because they're comments

from the District. So we -- I don't know if

you want to separate it.

HEARING OFFICER TIPSORD: We'll put

all of the paper-clipped District comments as

one exhibit. That will be Exhibit 51 if

there's no objection. Seeing none, it's

Exhibit 51.

If there's no objection to

Exhibit 49, I'm also admitting that. Seeing

none, it's admitted.

Next we have an IEPA document

titled Chicago Waterway Lower Des Plaines

River UAA. We'll mark that as Exhibit 52.

MS. WILLIAMS: This is just memorandum

that Toby put together between the meeting

that was held in Joliet and the one that was

held in Chicago so that at this Chicago

meeting folks could be aware of issues that

had already come up at the Joliet meeting.

So this is more a summary of verbal comments,

216

not quite relevant to the issue of written

comments, that we got in that fit with this.

HEARING OFFICER TIPSORD: Seeing no

objection, that's Exhibit 52.

Exhibit 53 is from the

Environmental Law Policy Center. If there is

no objection, we will mark that and admit it

as Exhibit 53. Seeing none, it is

Exhibit 53.

And, Albert, I have a gold

star at the office for you, too.

MR. ETTINGER: That's okay. It's good

enough for Franzetti. It's not good enough

for me.

MS. FRANZETTI: Well, having you in

the same crowd kind of detracts a bit, but

I'll get over it.

HEARING OFFICER TIPSORD: Next I have

an e-mail from Phillip Moy to Toby Frever.

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

Exhibit 54 and admit it. Seeing none, it is

Exhibit 54.

And last we have Alliance for

the Great Lakes. And if there's no

217

objection, I will mark that as Exhibit 55.

Seeing none, it is Exhibit 55.

MS. FRANZETTI: I don't know if

anybody here can answer the question. It

looks like this also was prepared at some

point after the meetings. I mean I think I

saw in a quick glance through it, so at some

point in 2007. Does anybody know what the

approximate date of Exhibit 55 is?

MR. ETTINGER: I believe it was

prepared in July.

MS. WILLIAMS: It was definitely

sometime between April and the end of July of

'07 that we received it, I should say. I

don't know.

HEARING OFFICER TIPSORD: And I bet we

have more documents.

MS. WILLIAMS: One more.

HEARING OFFICER TIPSORD: There's a

2000 copyright on the back of the -- 2007

Great Lakes Report Agenda.

MS. DIERS: The last document we have

to enter is the January 2007 proposal that we

218

sent out. And it has an e-mail on the cover

of it that tells the stakeholder group what

exactly is in this and kind of a summary.

HEARING OFFICER TIPSORD: If there's

no objection, we will mark that as

Exhibit No. 56. Seeing none, it is

Exhibit No. 56.

MR. FORTE: Is that the entire clipped

document?

HEARING OFFICER TIPSORD: We'll do it

as one, because the e-mail talks about

attachments, so.

MR. SAFLEY: Miss Tipsord, I had a

question regarding this Exhibit whenever it's

appropriate.

HEARING OFFICER TIPSORD: Yes.

MR. SAFLEY: To the Agency, the first

paragraph of this e-mail, the last sentence

says IEPA is working on responses to comments

on the UAA reports which will be available on

www.Chicagoareawaterways.org at a later date.

Have those responses been entered into

evidence?

MS. WILLIAMS: No. They have not.

219

They don't exist, if that's the question. We

never completed the document that's

referenced.

MR. SAFLEY: Are there drafts that are

started? Because it says working on, which

implies there was a draft at that point.

MS. WILLIAMS: No. I mean we worked

on compiling all the questions that were

asked, so there was an attempt to filter out

all the questions. But it was way too

burdensome to actually answer them, so no.

Does that make sense? I'm not explaining

this very well. We haven't talked about

this, I don't think previously, have we?

MR. SAFLEY: Not that I recall. If I

recalled, I wouldn't have asked.

MS. WILLIAMS: This is a Toby

question. Do you want to try to --

MS. FRANZETTI: So take it away,

Mr. Twait.

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

to -- I think at some point Toby made the

commitment that all the questions would be

addressed in the responsiveness summary.

220

And, as Deb said, we started the compilation

of that. And at a similar point we started

doing responsiveness summary and the

statement of reasons and our proposal, and it

got to the point that because of workload

Toby made the decision of whether to continue

with the responsiveness summary or to work on

the statement of reasons and our proposal.

And the decision was made that we would

forego the responsiveness summary in order --

because workload -- to work on the proposal

and statement of reasons.

MR. SAFLEY: Is the start that was

made to the responsiveness summary contained

in the record?

MS. WILLIAMS: That's where I was

explaining there are no responses drafted,

just an attempt to compile the questions.

MR. SAFLEY: I'm sorry. Then I

misunderstood. I heard Mr. Twait say there

were two different things: One, a

compilation of questions; two, a start on

responsiveness summary. And -- maybe I

misunderstood.

221

MR. TWAIT: That was -- the start on

the responsiveness summary was to group --

when we first started looking at them, we

could either try to answer all of the

questions proposed by each and every person.

But the decision was made that we would have

another staff person that was unrelated to

this go through all the questions and group

the questions according to temperature,

bacteria, and et cetera. And when they

had -- as they were going through that

compilation putting everything together, it

just got too unwieldily and timely.

MR. SAFLEY: So is that compilation

included in the record?

MR. TWAIT: And as Deb is reminding

me, at that point a lot of the comment became

irrelevant because we had changed the

proposal since those comments were made

because some of them were numerous years old

during the UAAs.

MR. SAFLEY: Okay. Is the compilation

that was started included in the

administrative record?

222

MS. WILLIAMS: No.

MR. SAFLEY: Was the compilation drawn

only from written documents or was it drawn

from oral comments made at stakeholder

meetings or both or do we know?

MR. TWAIT: I believe everything was

written.

MR. SAFLEY: Are all of those written

documents that were the source of the

beginning of the compilation included in the

record?

MR. TWAIT: For the lower Des Plaines

they're attached to the CD and appendix --

Attachment A.

MR. POLLS: If I understand, those

comments were specifically given by numerous

agencies on the finished UAA reports of the

two contractors; is that correct? Is that

what -- because I don't have it in front of

me, but I believe that's what the comments

you're talking about.

MR. SAFLEY: Draft.

MR. POLLS: That's something

different, okay.

223

MR. SAFLEY: I'm sorry. You had --

MR. TWAIT: The ones that are --

MS. WILLIAMS: The draft what?

MR. POLLS: The draft --

MR. SAFLEY: Back to --

MR. POLLS: Draft proposal.

MS. WILLIAMS: These are not comments

on the proposal that we're talking about.

Just on the UAA reports.

MR. SAFLEY: No. I understand. But

the question I had was are all -- we've

talked about this compilation and the answer

was the compilation is not in the record.

But are the documents that were drawn from

for the compilation in the record? If I want

to go back and try to reconstruct was the

Agency asked a particular question, I don't

have the compilation, but do I at least have

the documents that that staff person,

unrelated staff person, who you mentioned was

drawing from so I can look back through all

of those and say how this question came up.

MR. TWAIT: I believe that all the

comments on the draft UAA for the lower Des

224

Plaines are included as an attachment on the

CD, and I think they are part of the record.

MR. SAFLEY: What about with the

Chicago Area Waterway System UAA?

MR. SULSKI: I'm not certain. I'm not

certain whether we began -- whether they are

all in the record in the existing record.

MR. SAFLEY: Okay. Well, I --

MR. SULSKI: We can go back and look.

MR. SAFLEY: I would request if the

Agency received written questions or comments

on the Chicago Area Waterway System UAA that

are not in the record, we would request that

those be placed into the record as something

that the Agency had in its administrative

record as it was developing through you, and

whether or not it ever issued a formal

written response to it. Thank you.

HEARING OFFICER TIPSORD: I heard an

agreement from them, by the way. Okay. Are

there any other questions? Any additional

documents to be entered?

MS. DIERS: No. We don't have any