BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

3 IN THE MATTER OF:

5 WATER QUALITY STANDARDS AND )

6 EFFLUENT LIMITATIONS FOR )

7 THE CHICAGO AREA WATERWAY )

8 SYSTEM AND THE LOWER

)

9 DES PLAINES RIVER:

) No. R08-9

10 PROPOSED AMENDMENTS TO

)

11 35 Ill. Adm. Code Parts

)

12 301, 302, 303 and 304

)

REPORT OF PROCEEDINGS had before the

16 ILLINOIS POLLUTION CONTROL BOARD held on September

17 24, 2008, at 9:00 o'clock a.m. at the Thompson

18 Center, Room-2-025, Chicago, Illinois.

1 A P P E A R A N C E S:

2 ILLINOIS POLLUTION CONTROL BOARD:

3 MS. MARIE TIPSORD, Hearing Officer

4 MR. TANNER GIRARD, Member

5 MR. THOMAS E. JOHNSON, Member

6 MR. NICHOLAS E. MELAS, Member

7 MR. ANAND RAO, Senior Environmental Scientist

9 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

10 Ms. Stefanie Diers

11 Ms. Deborah Williams

12 Mr. Robert Sulski

13 Mr. Scott Twait

14 Mr. Roy Smogor

16 ENVIRONMENTAL LAW AND POLICY CENTER

17 33 East Wacker Drive, Suite 1300

18 Chicago, Illinois 60601

19 (312) 795-3707

20 BY: MR. ALBERT ETTINGER and JESSICA DEXTER

Appeared on behalf of ELPC, Prairie Rivers

Network and Sierra Club;

1 APPEARANCE CONTINUED:

2 BARNES & THORNBURG LLP

3 One North Wacker Drive, Suite 4400

4 Chicago, Illinois 60606-2833

5 (312 357-1313

6 BY: MR. FREDERIC P. ANDES

Appeared on behalf of the MWRDGC.

CHAIRMAN TIPSORD: Good morning.

2 My name is Marie Tipsord, and I'm the Board

3 hearing officer in this proceeding, water quality

4 standards and effluent limitations for the Chicago

5 are waterway systems and lower Des Plaines River,

6 proposed amendments 35-Il Admn Code, 301, 302,

7 303. And 304. Docket number R08-9.

I'll introduce the panel this

9 morning. To my immediate right is Dr. Tanner

10 Girard, the lead Board member assigned this

11 matter. To his immediate right is Board member

12 Nicolas Melas, and Board member Andrea Moore will

13 be joining us shortly. To my far left is Board

14 member Thomas Johnson and to my immediate left is

15 Anand Rao of our technical staff. I think that's

16 all of us here today. This is day two of the

17 fifth set of day of hearings to be held in this

18 proceeding. We're going to continue with the

19 District's testimony this morning and continued

20 with Dr. Dorevitch and questioning by the IEPA.

With that, Dr. Dorevitch, I will

22 remind you that you are still sworn in.

MS. WILLIAMS: Good morning,

24 Dr. Dorevitch. Please let me know right away if

1 you can't hear me because I had some issues with

2 that yesterday.

CHAIRMAN TIPSORD: That's why we

4 moved you closer.

MS. WILLIAMS: We'll start off

6 easily hopefully this morning with, it will be a

7 housekeeping question. I want to turn to question

8 12 of our pre-filed question. And that question

9 is, you testified that public comment 63 is from

10 Daniel Woltering of WERF. Did you mean to say

11 public comment number 66?

THE WITNESS: Yes.

MS. WILLIAMS: Question 13, I

14 believe you talked about this yesterday, what

15 water is the CHEERS study looking at for the

16 general use recreators group? I know you

17 mentioned Lake Michigan and Skokie lagoons

18 yesterday. Are there others?

THE WITNESS: There are.

MS. WILLIAMS: Can you name them?

THE WITNESS: Tampeer Lake, Busse

22 Lake, Crystal Lake, Fox River.

CHAIRMAN TIPSORD: You are going to

24 have to speak up. We can't hear you at the end of

1 the table.

THE WITNESS: Tampeer lake, Busse

3 Lake, Crystal Lake, in addition to the Skokie

4 lagoons and Lake Michigan.

MS. WILLIAMS: And obviously you are

6 referring to portions of the Des Plaines River

7 that are not part of this study area that we are

8 looking at in this rule making?

THE WITNESS: I'm referring to

10 northern portions of the Des Plaines River, not

11 downstream of the confluence with the CAWS system.

MS. WILLIAMS: Good. Thank you.

MR. ANDES: If I can follow-up just

14 to expand on that a little bit.

Dr. Dorevitch, in terms of the

16 Lake, you are looking at a series of locations

17 along Lake Michigan, right?

THE WITNESS: Correct.

MR. ANDES: Do you want to lay those

20 out?

THE WITNESS: Sure. At Lake

22 Michigan we recruit people and make water quality

23 measurements at 63rd Street, Montrose Beach,

24 Montrose Harbor, Leon Beach, Diversey Harbor,

1 Fullerton Avenue, and -- by Northerly Island. I

2 forgot the name of the designation for that beach,

3 but -- I think Burnham Harbor -- no, not Burnham

4 Harbor -- but at Northerly Island, at that site.

MS. WILLIAMS: Can you explain for

6 us why you feel that the CHEERS study will "in

7 several respects surpass USEPA's ongoing research

8 about primary contact recreation known as the

9 National Epidemiological and Environmental

10 Assessment of Recreational Water or the NEAR

11 Study?

THE WITNESS: Well, I don't mean to

13 be criticizing the NEAR Study. We have the

14 advantage of being able to develop the CHEER Study

15 after the NEAR Study was piloted, developed,

16 launched, papers published. So we had the

17 opportunity to in some respects make additional

18 types of water quality measurements and health

19 measurements that they aren't making. The

20 published papers that have come out of the NEAR

21 Study have focused on enterococci and bacteroides

22 in water samples measured by quantitative PCR

23 measurements. We looked at a broader array of

24 indicators, pathogen indicators, such as e-coli

1 and enterococci by culture, coliphages,

2 malspecific and somatic and colophage stereotypes.

3 We also measured pathogens in the water, such as

4 girardia, cryptosporidium and neurovirus.

Second, the NEAR Study --

MS. WILLIAMS: Wait, let's stop

7 there before we get to the next point to make sure

8 I understand your first point.

So when you are referring to

10 looking in a broader array of indicators, and then

11 I believe you also said we look at more pathogens

12 in the water?

THE WITNESS: We looked at

14 pathogens, right.

MS. WILLIAMS: Explain to me, are

16 you talking about the ambient monitoring or are

17 you talking about the testing that's performed by

18 people who are there or both?

THE WITNESS: I'm talking about the

20 research team going out and collecting water

21 samples.

MS. WILLIAMS: Okay. So in the NEAR

23 Study the research team is only collecting --

THE WITNESS: I don't think they

1 are collecting pathogens, samples of pathogens

2 analyses, and the pathogens indicators that they

3 study are more limited. We study more indicators.

MS. WILLIAMS: Okay. Go ahead. Can

5 you finish then with your second point?

THE WITNESS: Sure. The second

7 point, the NEAR Study like most other studies of

8 water recreation, rely on questionnaire data to

9 determine if somebody gets sick. We do that as

10 well, but in addition we attempt to collect

11 clinical specimens from people who have gotten

12 sick and to identify pathogens. So that is

13 something that the NEAR Study doesn't do.

Third, in the NEAR Study,

15 telephone contact is made between days 10 and 12

16 and participants are interviewed about their

17 health status. We follow people on day two, day

18 five and day 21 post-recreation or post-enrollment

19 in recreation. So we're following them for a

20 longer time period, which may make it possible for

21 us to identify symptoms that develop late,

22 potentially due to infections by giardia or

23 cryptosporidium which have longer incubation

24 periods. And because we're contacting folks three

1 times, we may be getting more accurate information

2 about what happens in the initial days as well.

Fourth, the NEAR Study recruits

4 family units and interviews family units, whereas

5 we recruit and interview individuals. So although

6 a parent may be asked questions about the health

7 of their small children, in general each person is

8 reporting their own health, and I think that may

9 be an advantage. I am not sure how many parents

10 of teens really know their child's bowel habits,

11 let's say. So in that respect I think we may be

12 getting more valid measures of development of

13 symptoms and the timing of symptoms. So that's

14 what I meant. I didn't mean it as a criticism of

15 the NEAR Study.

MS. WILLIAMS: That's very helpful,

17 Thank you.

Question 15 is referring to some

19 testimony at the bottom of page 6. And I ask, can

20 you point to a citation that supports the idea

21 that U.S. EPA places considerable weight on

22 epidemiological studies when establishing

23 environmental standards?

THE WITNESS: Well, in terms of

1 water and air, it seems that the EPA does that.

2 In 1976 the EPA, U.S. EPA proposed water quality

3 criteria, and that was based solely on

4 epidemiologic studies.

MR. ANDES: We actually provided a

6 copy of that document yesterday. The 1986

7 Bacteria Criteria Document.

THE WITNESS: I'm sorry if I said --

MS. WILLIAMS: I thought he said '76.

THE WITNESS: Yes, there was an

11 initial study based on the studies of Stevenson in

12 the 1950's. In 1986 new recreational water

13 quality standards were proposed, again based upon

14 epidemiologic studies. This time the EPA studies

15 by Dufour and Cavelli again in the late 70's.

16 Again, even though there were other types of water

17 quality research done at that point, it was

18 strictly the epidemiologic studies that were

19 considered. In 2000 under the Beach Act, again,

20 the EPA initiated epidemiologic studies. In 2004

21 the EPA published a recreational water quality

22 rule again, and this was based on the 1986

23 standard which was based on epidemiologic studies.

24 Last month --

MS. WILLIAMS: Just to clarify,

2 that's a draft, correct? That's the draft rule

3 that you are referring to in 2004 or are you

4 referring to something else?

THE WITNESS: I believe in

6 November 2004 all states that hadn't already

7 adopted the 1986 criteria or other criteria, I

8 think there are 35 coastal states and great lake

9 states and up to that point 21 had not yet adopted

10 the 1986 criteria, and in November of 2004 they

11 essentially, that was made law.

MS. WILLIAMS: Under the Beach Act?

THE WITNESS: Yes.

And last month the U.S. EPA and

15 the National Resources Defense Council reached a

16 settlement agreement, again, emphasizing the

17 completion of epidemiologic studies, the support

18 of ongoing epidemiologic studies. And even in the

19 1986 standards, it doesn't use the term only

20 epidemiologic studies count, but it called for --

21 the document reviewed work to date in that area

22 and stated that prior to the proposal there were

23 limitations and studies of association between

24 health and water quality were limited. So that

1 wasn't called an epidemiologic study, but that's

2 what they were asking for and that's what the EPA

3 did.

MS. WILLIAMS: So your conclusion is

5 based upon what they had and what they relied upon

6 developing?

THE WITNESS: Yes, I think it sort

8 of speaks for itself that although there are risk

9 assessments and pure microbial studies, it's the

10 epidemiologic studies that seem to be the basis

11 for the water quality standards.

MS. WILLIAMS: As far as you know,

13 they haven't relied on risk assessment as a

14 significant factor in developing their criteria to

15 date?

THE WITNESS: For the -- I mean,

17 it's really the 1986 standards that became the

18 2004 standards, and those were based on

19 epidemiologic studies.

CHAIRMAN TIPSORD: Excuse me,

21 Mr. Harley, you have a follow-up?

MR, HARLEY: Dr. Dorevitch, my name

23 is Keith Harley. I represent the Southeast

24 Environmental Task Force. Excited to see you

1 again.

Dr. Dorevitch, while we are on

3 the topic of the role of public health studies,

4 epidemiological studies and the development of

5 rule making or regulatory standards, I don't

6 believe we've had anyone in the record yet

7 describe the concept of the Cautionary Principle.

8 Are you familiar with the Precautionary Principle?

THE WITNESS: I'm familiar with the

10 term, sure.

MR, HARLEY: Could you describe for

12 the record what the Precautionary Principle is?

THE WITNESS: Well, I'm not really

14 prepared to articulate in real specificity what it

15 is, but I think in general terms it's a matter of

16 playing things safe that, let's say, a new

17 chemical comes into use, should it be widely used

18 before there's substantial testing that goes on

19 or should we take the precaution of saying, it may

20 be harmful, let's first determine what the health

21 risks are. So it's the view that play it safe

22 rather than assume everything is benign, something

23 along those lines.

MR. HARLEY: Another hypothetical.

1 If you are familiar with this, are you familiar

2 with any situations where the Precautionary

3 Principle has been applied in regulatory activity

4 where you have already the presence of more

5 toxins in the environment and also receptors,

6 human receptors?

THE WITNESS: I'm not -- I don't

8 really know the answer to that. I mean, no, I

9 don't know about how the Precautionary Principle

10 might have been applied in regulations -- in

11 those, you know, in that setting that you are

12 describing.

MR. HARLEY: So to be absolutely

14 clear about your answer, you are not familiar of

15 any instance in which the Precautionary Principle

16 has been applied in regulatory activity where you

17 have both the presence of pollutants or toxins in

18 the environment and receptors?

THE WITNESS: I'm not sure exactly

20 what you mean. I mean, in terms of water quality

21 and air quality standards. Is there a way you can

22 make your question more specific because I'm not

23 sure what you mean?

MR. HARLEY: In your pre-filed

1 testimony you describe that you have extensive

2 knowledge of rule making regulatory activity on

3 both air and water side?

THE WITNESS: I'm not sure I said I

5 have extensive experience in that, but I'm talking

6 about how the EPA has used epidemiologic studies

7 as the basis for regulation for both water and

8 air.

CHAIRMAN TIPSORD: That's U.S. EPA?

THE WITNESS: U.S. EPA, right. I

11 mean, are you asking about how does the EPA create

12 safety factors to be more protective? I mean, I

13 don't recall regulation where the term

14 Precautionary Principle is applied saying that --

15 I'm not familiar with that.

MR. HARLEY: Thank you.

CHAIRMAN TIPSORD: Ms. Alexander, do

18 you have a follow-up?

MS. ALEXANDER: This is Ann

20 Alexander from the Natural Resource Defense

21 Council. I want to follow-up with the settlement

22 agreement with the Natural Resources Defense

23 Council.

Have you read that settlement

1 agreement, Dr. Dorevitch?

THE WITNESS: Yes.

MS. ALEXANDER: Are you aware of

4 anything in the settlement agreement that

5 explicitly requires that U.S. EPA rely on the

6 results of any one epi study in setting its

7 standards?

THE WITNESS: No, the agreement

9 called for the EPA to complete the ongoing

10 epidemiologic study to support the epidemiologic

11 study at Avalon, California, but it didn't

12 explicitly say only one epidemiologic study counts

13 and it requires it for regulation.

MS. ALEXANDER: And it required also

15 that EPA review existing epidemiological studies,

16 correct?

THE WITNESS: I believe so, but I

18 don't have the document in front of me, but I

19 believe it said that, yes.

CHAIRMAN TIPSORD: For the record,

21 is this Exhibit 58 that we're discussing?

MS. ALEXANDER: Yes, it's

23 Exhibit 58.

CHAIRMAN TIPSORD: I just want to be

1 clear that that is part of the record. So it's

2 Exhibit 58. I apologize for interrupting.

MS. ALEXANDER: And it further

4 requires before the promulgation of these

5 regulations that the EPA will convene a scientific

6 expert workshop to review the epidemiological

7 study as part of the decision making process,

8 correct?

THE WITNESS: Like I said, I don't

10 have the document in front of me, but that sounds

11 right.

MS. ALEXANDER: Okay, thank you.

CHAIRMAN TIPSORD: Ms. Williams?

MS. WILLIAMS: I believe yesterday

15 you testified that you had reviewed the

16 probabilistic Microbial Risk Assessment that was

17 performed by the District; is that correct?

THE WITNESS: Performed for the

19 District by Geosyntec, yes.

CHAIRMAN TIPSORD: Excuse me, again

21 for the record that's Exhibit 71, I believe?

MS. WILLIAMS: I think that's

23 correct.

Did you rely on that study at

1 all in developing your methodology for the CHEERS

2 study?

THE WITNESS: No.

MS. WILLIAMS: I'm going to jump

5 ahead to question 23 just because I think it

6 flows. There's a quote in your testimony that

7 "The conduct of an epidemiological and risk

8 assessment in tandem is unusual and this

9 opportunity to evaluate the strength and

10 limitations of risk assessment methods is one

11 reason there's considerable national interest in

12 applying the final result of this research to the

13 development of water quality regulations." Could

14 you explain, just explain the statement a little

15 bit. I think that will be helpful.

THE WITNESS: Well, there are many

17 risk assessments, but there are very few

18 epidemiologic studies. Epidemiologic studies are

19 very costly, time intensive, labor intensive, and

20 I think yesterday we reviewed the -- or at least

21 mentioned a handful of studies that have been

22 done, and there are many risk assessments which

23 involve using mathematical models that can rely on

24 epidemiologic studies for their inputs.

MS. WILLIAMS: So let me see if this

2 is correct. So in theory after your study is

3 completed, would you envision it would be helpful

4 to rerun these models with new inputs and verify

5 the results?

THE WITNESS: I think that may be

7 helpful.

MS. WILLIAMS: And what do you think

9 that would be helpful to show?

THE WITNESS: Well, I don't think

11 it's a matter so much of showing anything, but I

12 think that so little is known about incidental

13 contact recreation that assumptions have to be

14 made in developing the risk assessment models, and

15 at the completion of our study some of the

16 assumptions will be shown to be over, right on

17 target or too conservative or not conservative

18 enough. So I think that it may help produce

19 results, not just in this setting, but in other

20 settings about incidental contact recreation based

21 on actual observations of hundreds of people.

MS. WILLIAMS: Can you specify

23 inputs to that model that could be tweaked as a

24 result of the epidemiological study you are doing?

THE WITNESS: I think -- well, the

2 inputs include things like distribution of

3 recreational activities, duration of recreational

4 activities, the frequency of -- I believe

5 frequency of swallowing water or capsizing. And

6 those are areas that we'll have information about.

7 Some aspects, such as the dose response -- let me

8 back up.

I used the term yesterday dose

10 response to mean something like concentration of

11 microbes in the water as a predictor of health

12 risks. In the risk assessment, they use dose

13 response to mean how many cysts of giardia does

14 somebody have to swallow before the probability of

15 infection goes up. That's something that the

16 researching, that the CHEERS research study won't

17 be able to help with their input. How many

18 neuroviruses in the water does somebody have to

19 swallow before they get sick again. That's not

20 something that the CHEERS study will be able to

21 reduce uncertainties.

MS. WILLIAMS: Do you feel that the

23 certainties of the science on the dose response

24 inputs are good now or is more research needed in

1 that area as well?

THE WITNESS: I couldn't comment on

3 that. I mean, I haven't gone through that

4 literature about risk assessment regarding, you

5 know, that kind of information, how many cysts or

6 how many virus particles does somebody have to

7 swallow. So I don't know if their assumptions are

8 state of the science or more conservative or less

9 or guesswork, I don't know.

MS. WILLIAMS: If you were going to

11 rerun a risk assessment model, using some of the

12 results of your study, would you think that it

13 should also include ambient data that you've

14 collected?

THE WITNESS: It could. It could.

MS. WILLIAMS: Can you think of

17 anything else?

MR. ANDES: Anything else in his

19 study that should be used in rechecking the risk

20 assessment?

MS. WILLIAMS: Correct. Or any

22 other input, right, that could be rechecked using

23 outputs of his study.

MR. ANDES: Beyond water quality

1 data assumptions.

MS. WILLIAMS: I'm just asking if

3 there's anything he may have left out of his

4 answer.

THE WITNESS: No, I think those

6 would be the ones, the recreational data, the sort

7 of behavioral data, the water quality data.

MS. WILLIAMS: But the information

9 you are developing about actually getting sick

10 can't be used with this model?

THE WITNESS: No, it couldn't. The

12 model could be compared to our results, but that

13 isn't really an input to the model. That's sort

14 of the final product of the risk assessment model.

MS. WILLIAMS: Thank you.

MR. ANDES: Let me clarify that.

17 You wouldn't take numbers of people getting sick

18 in an epidemiologic study and then plunk that into

19 a risk assessment -- am I correct that the risk

20 assessment gets to the same end goal but in a

21 different way?

THE WITNESS: Correct.

MS. WILLIAMS: And if the numbers

24 don't match, that indicates that the problem is

1 with the model, correct?

THE WITNESS: Well, it could be that

3 one is wrong or both are wrong. I think the

4 epidemiological study involves directly measuring

5 something as opposed to modeling it. So you can

6 call it my bias as an epidemiologist, but I would

7 look at that as an opportunity to review the

8 assessment, the assumptions that went into the

9 model of the risk assessment and to see if there

10 were any systematic errors in the epidemiologic

11 study that produced a result that's, you know,

12 discordant with what was found by the risk

13 assessment.

MS. WILLIAMS: I'll go back now to

15 question 16, which states, when you testify

16 regarding methods of ingestion on page 6, you

17 indicate that capsizing or falling into the water

18 is an unlikely event. Can you tell me what you

19 mean by that or what you base that on?

THE WITNESS: I base that on my own

21 observations from working in the field, especially

22 last season, and interviewing people. It's not

23 based on analysis of the data. That question will

24 be answered, but it seems quite uncommon.

CHAIRMAN TIPSORD: Mr. Harley, you

2 have a follow-up question?

MR. HARLEY: In terms of your

4 observations, what years are we talking about for

5 your observations of users of the CAWS?

THE WITNESS: 2007 and 2008.

MR. HARLEY: And I believe you

8 testified yesterday that the users that you will

9 be following as part of your study will be 2007,

10 2008 and 2009?

THE WITNESS: Yes.

MR. HARLEY: In terms of the results

13 of your study, will they be predicted in terms of

14 what will happen in 2012 in terms of the types of

15 uses of the CAWS?

THE WITNESS: If the uses are the

17 same and the water quality is the same and the

18 behavior of the people using the water is the

19 same, yes.

MR. HARLEY: But what if any one of

21 those three things is not true? What if the uses

22 of the water are different in 2012?

THE WITNESS: You know, there could

24 be any permutation of more use and less risky

1 behavioral or more risky behavior or increases in

2 -- improvement of water quality in some areas and

3 worsening in others, changes in rain fall

4 patterns. So I couldn't tell you if in 2012 rates

5 of illness may be higher, lower or the same, but

6 it's conceivable that conditions can change and it

7 could lead to different rates of illness in the

8 future.

MR. HARLEY: And that would be true

10 for every year subsequent to the completion of

11 your study?

THE WITNESS: It would be true

13 subsequent to the completion of any

14 epidemiological study, that the NEAR Study is

15 doing things right now on the Golf Coast and in

16 Rhode Island, and next year at those same places

17 they are not going to be out there doing that

18 study, but the assumption is that dramatic changes

19 aren't going to happen. And we can't continually

20 conduct surveillance like this so that the

21 findings should be generally applicable to future

22 years, unless there are major changes, especially

23 changes all in the same direction.

MR. ANDES: If I can follow-up on

1 that for a minute. A couple questions, Dr.

2 Dorevitch. If you predict rates of illness, if

3 you see rates of illness say per thousand

4 recreators in the results from the epi study,

5 would more people being on the water change the

6 rate of illness?

THE WITNESS: More people being on

8 the water may change the number of illnesses, but

9 more people by itself shouldn't have an impact on

10 the rate of illnesses.

MR. ANDES: And are the current EPA

12 criteria for bacteria based on studies done in the

13 80's?

THE WITNESS: 70's and -- yes.

MR. ANDES: So those are generally

16 felt to be relevant beyond just the immediate year

17 they are done?

THE WITNESS: Yes, they are not

19 considered to be the final word, but, right, the

20 standards aren't updated every year based on 1987

21 data and 1988 data. The 1986 standard or criteria

22 has held.

CHAIRMAN TIPSORD: Dr. Dorevitch,

24 you are talking to Mr. Andes and not the rest of

1 us.

THE WITNESS: I'm sorry. Where did

3 you lose me?

CHAIRMAN TIPSORD: Just, you were

5 trailing off. Go ahead where you were at.

THE WITNESS: The assumption is that

7 1986 data are going to be relevant in 1987 and

8 1988, and I believe that would be true for our

9 results as well.

CHAIRMAN TIPSORD: Mr. Harley, go

11 ahead, and then Ms. Alexander.

MR. HARLEY: So that your testimony

13 is clear on this, you mentioned, I believe, three

14 important variables that could change over time,

15 that might change the assessment that you are

16 doing now. One was that the uses of the water

17 could change; is that correct?

THE WITNESS: That is correct.

MR. HARLEY: The water quality could

20 change?

THE WITNESS: Correct.

MR. HARLEY: Meteorological

23 conditions could vary?

THE WITNESS: Yes.

MR. HARLEY: I have one question and

2 then I'll turn it over to others. You mentioned

3 in your pre-filed testimony that you do have

4 experience participating in other rule making

5 regulatory activity; is that correct?

THE WITNESS: That's correct.

MR. HARLEY: In the context of this

8 regulatory activity, do you know if this

9 regulatory activity is designed to protect actual

10 uses only, today's uses only?

THE WITNESS: I believe that the

12 standard a would have three components, one would

13 be a use designation, one would be a water quality

14 criteria, a measurement to protect those uses, and

15 a third would be a plan to make, to keep the water

16 quality at an acceptable level. So the use that's

17 designated may be the same as current uses or it

18 may be different.

MR. HARLEY: Let me be absolutely

20 specific then in terms of what I'm asking, which

21 would be a first. Are potential uses of the

22 Chicago area waterways relevant to this rule

23 making activity?

THE WITNESS: I think that we're

1 trying to answer a question about incidental

2 contact recreation, not scuba diving, say, so

3 whether or not scuba diving is a potential future

4 use, it's beyond the scope of what can be studied.

MR. ANDES: If I can follow-up on

6 that. Is scuba diving one of the designated uses

7 in this proposal? Let me ask more generally. Is

8 primary contact recreation one of the proposed

9 uses for this water in the IEPA rules?

THE WITNESS: No, it's not.

MR. ANDES: Thank you.

CHAIRMAN TIPSORD: Ms. Alexander?

MS. ALEXANDER: Just a quick

14 follow-up on that last exchange. I understand

15 that you are saying the potential increased use

16 for scuba diving, for instance, you don't believe

17 is relevant, correct?

THE WITNESS: Correct.

MS. ALEXANDER: But do you believe

20 that potential increased use for more high contact

21 types of secondary contact activity, such as

22 kayaking is relevant?

THE WITNESS: If it turns out that

24 kayaking is a riskier activity than say fishing

1 and there in the future there would be more

2 kayaking, then that could change the overall

3 picture of use.

MS. ALEXANDER: Or riskier than say

5 power boating?

THE WITNESS: Any activity of higher

7 or lower risk could increase or decrease which

8 would have an impact on overall risks.

MS. ALEXANDER: You testified in

10 response to one of Mr. Andes' questions, I

11 believe, that if the number of users on the CAWS

12 went up, that might increase the number of

13 illnesses but not the rate of illnesses; is that

14 correct?

THE WITNESS: Yes.

MS. ALEXANDER: However, would it

17 not be the case that if the increase were not

18 across the board in every activity, such that the

19 percentages stayed the same but there was a

20 significant increase in an activity that lets

21 hypothesize such as kayaking resulted in a higher

22 rate of illness because people were more likely to

23 get wet and fall in the water, would that not

24 increase also the rate of illness?

THE WITNESS: Like I said, any

2 changes can happen in the distribution of

3 different activities. Some higher risks. Some

4 lower risks. If it turns out there are

5 differences in risk, those could be increases or

6 decreases, and that could change the rate in

7 either direction. So, yes, that is possible.

MS. ALEXANDER: So just to summarize

9 if, for instance, there were going to be new boat

10 launches going in, increased uses of boat launches

11 and they were going to be used for activity such

12 as kyacking which we'll designate as a higher

13 risk, that could change the rate of illness?

THE WITNESS: That could change the

15 rate of illness. I don't know if kayaking is

16 going to increase the rate or lower the rate, but

17 it could change it.

CHAIRMAN TIPSORD: Ms. Meyers-Glen?

MS. MEYERS-GLEN: You mentioned

20 there were three factors which could alter --

21 basically when Mr. Harley asked you about factors

22 which can alter pollution, you had mentioned that

23 uses of water could change, water quality could

24 change and meteorological conditions could vary.

1 Are you familiar with Tunnel and Reservoir Program

2 or TARP?

THE WITNESS: Yes.

MS. MEYERS-GLEN: And once the

5 completion of TARP -- are you familiar with the

6 completion of TARP that the estimates by the

7 District state that 98 percent of CSO in the

8 Chicago area waterways --

MR. ANDES: I don't know that. That

10 statement hasn't been offered.

MS. MEYERS-GLEN: Are you familiar

12 as to how much TARP is supposed to remove CSOs

13 when completed?

THE WITNESS: I don't know the exact

15 number. I don't know the number. I don't know

16 the percent of CSOs that are predicted to be

17 produced.

MS. MEYERS-GLEN: As far as the

19 completion of TARP, would that be another factor

20 which could vary the rate of illness?

THE WITNESS: It could.

MR. ANDES: If I could follow-up on

23 that. Would it be your sense that the completion

24 of TARP would improve water quality and therefore

1 decrease the overall rate of illness?

THE WITNESS: If it did in fact

3 result in less frequent CSOs or smaller volume

4 CSOs and less pathogens entering the waterway,

5 yes, I would think that specifically, especially

6 on days following a CSO event or heavy rain fall,

7 it would improve -- it would lead to relatively

8 improved water quality and a lower rate of

9 illness.

MR. ANDES: So that would be a lower

11 rate of illness than you would have observed in

12 your EPI study?

THE WITNESS: It could be that way,

14 yes.

MS. MEYERS-GLEN: On dry water days

16 when approximately one hundred percent or up to

17 one hundred percent of the water flowing from the

18 CAWS is from effluent, would that still be the

19 case?

THE WITNESS: I was under the

21 impression that it was 70 percent of the flow is

22 effluent, not 100 percent. But would it still be

23 the case that CSOs, that the completion of TARP is

24 going to change water quality on dry weather days,

1 is that the question?

MS. MEYERS-GLEN: That is correct.

THE WITNESS: I think that the TARP

4 is about protecting water quality following rain

5 events.

MS. MEYERS-GLEN: So just to be

7 clear then, so that would not effect dry weather

8 days, is that correct?

THE WITNESS: Dry weather days in

10 the sense after a heavy rain fall CSO's -- my

11 understanding is that there are two kinds of CSOs,

12 that there are the passive CSOs which happen in

13 over hours or a day following a heavy rainy event,

14 and then there are active CSOs where pumping

15 station activity can go on for a week or more

16 following heavy rain fall. So those days may be

17 dry. But the effects of the CSO may still be

18 felt. So I don't want to get into splitting hairs

19 about what is dry, but it's not just days where

20 there's no rain that are dry from the CSO

21 perspective. It's number of days following heavy

22 rain fall.

MS. MEYERS-GLEN: However we're

24 defining dry weather, however, there will be days

1 where the CSOs are not going to be the same kind

2 of factor when there is no rain event

3 contributing, correct?

THE WITNESS: Correct.

CHAIRMAN TIPSORD: Ms. Williams, I

6 think we're back to you.

MS. WILLIAMS: I guess I'll

8 follow-up on this area before I go back. So in

9 your opinion, just generally, no hair splitting

10 here, do you believe less pathogens in the water

11 will result in less illnesses to people?

THE WITNESS: I think the study will

13 end up giving us an answer to that, but there

14 haven't been incidental contact studies that have

15 shown that, and even the larger studies like the

16 NEAR Study didn't measure pathogens. So, you

17 know, I think we could say a little bit more about

18 indicators in health risk, but our work will be

19 some of the first large scale studies of pathogens

20 as predictors of rates of illness.

CHAIRMAN TIPSORD: Mr. Harley, you

22 have a follow-up?

MR. HARLEY: Or on that very point.

24 On page 2 of your pre-filed testimony, you reflect

1 on the fact that there are few studies that have

2 been completed on the issue of recreation and

3 limited contact recreation, and a quote from your

4 pre-filed testimony is that, "We are just

5 beginning to develop the scientific data that will

6 help define what regulatory measures are

7 appropriate for protecting the health of the

8 public." Is that your testimony still today?

THE WITNESS: Yes.

MR. HARLEY: In light of the fact

11 that we don't have a significant body of research,

12 why shouldn't the precautionary principle apply in

13 this rule making?

THE WITNESS: Are you asking me to

15 interpret the Clean Water Act?

MR. HARLEY: No, I'm asking your

17 opinion as a medical doctor and a public health

18 specialist.

THE WITNESS: I think we have some

20 sources of information already about whether

21 there's an unacceptable health risk now. There

22 are thousands of people who use the waterways.

23 There is some surveillance system for disease

24 outbreaks, and I myself have interviewed study

1 participants who say they've used the waterways a

2 hundred times a year and have not gotten sick. So

3 that doesn't mean that there's no risk. It means,

4 I think, that we do have an opportunity to study

5 risk. I think to say that we should shut down all

6 recreation would be premature in that it isn't

7 based on any data.

MR. HARLEY: To quote from your

9 pre-filed testimony, "No studies have been done in

10 the U.S. -- no studies have been done in the U.S.

11 on limited contact recreation activity." Again

12 page 2 of your prefiled testimony. How does your

13 limited study, your limited observation of your

14 study provide the basis for the conclusion that

15 there is no health risk from human exposure to

16 pathogens in the CAWS?

THE WITNESS: I'm not saying there's

18 no human health risks to exposure to pathogens in

19 the CAWS. I'm saying that we should find that

20 out. I think if we're going to have recreation on

21 the CAWS or no recreation on the CAWS, we should

22 know what the risks are or if public health

23 measures, disinfection, other procedures are going

24 to be instituted, I think it's important to start

1 out with knowing what are the risks. So like I

2 said before about Precautionary Principle, a new

3 chemical is introduced, it would be important to

4 know what are the health risks of that chemical

5 and not to say we cannot have new chemicals, let's

6 evaluate with it, and that's what we're doing.

7 This is a little different in that recreation has

8 been ongoing, and now we're saying it's

9 continuing, let's find out what the health risks

10 are.

CHAIRMAN TIPSORD: Ms. Williams?

MS. WILLIAMS: I'd like to go back

13 to your answer to my last question because I'm not

14 sure I understood it. So when I asked if less

15 pathogens in the water would result in lower

16 illnesses, I think you said we don't really know

17 but we know more about indicators. Can you please

18 explain that?

THE WITNESS: I'm talking about

20 epidemiologic studies and the epidemiologic

21 studies that have identified measures of water

22 quality as predictors of illness rates have

23 focused on indicators. The NEAR Study focusing on

24 enterococci measured by the QPCR method. In other

1 primary contact research in the United Kingdom,

2 controlled trials of swimming versus not swimming,

3 again, it's indicators that have been studied. So

4 I'm not saying pathogens are good for you or

5 anything like that. I'm saying the literature is

6 relatively silent on that matter.

MS. WILLIAMS: But it's the

8 pathogens that make you sick, correct?

THE WITNESS: It's the pathogens as

10 well as -- it may be chemicals in the water. It

11 may be water contact itself is causing some skin

12 breakdown and skin symptoms. So it's not

13 exclusively the pathogens that cause symptoms, but

14 pathogens make people sick.

MS. WILLIAMS: We spent a lot of

16 time last week discussing or two weeks ago

17 discussing that although it's indicators that have

18 been used in the epidemiological studies, the link

19 between indicators and illness is not a good one;

20 Would you agree with that statement?

THE WITNESS: I'm not sure what "a

22 good one" means.

MS. WILLIAMS: That there's a

24 correlation or that it's reliable.

THE WITNESS: In the NEAR Study,

2 indicators were shown to predict rates of illness.

MS. WILLIAMS: And which indicators?

THE WITNESS: Enterococci measured

5 by culture and enterococci measured by QPCR, but

6 when they used both in the same model, it was the

7 enterococci by QPCR that was the better predictor.

MS. WILLIAMS: And did they look at

9 e-coli and fecal chloroforms?

THE WITNESS: They didn't report

11 that. They did look at bacteroides initially, but

12 they had high rates of undetectable, below the

13 limit of quantitation, and they didn't report that

14 in their later work. Now that's the NEAR Study.

There was another study by

16 Pullford in 2007 which didn't find a relationship

17 between microbial measures of water quality and

18 health risk. So it's not across the board that

19 indicators are good predictors, but in the papers

20 published by the NEAR Study, they were.

MS. WILLIAMS: I think I'm just a

22 little surprised by that answer primarily because

23 of the testimony previously from Dr. Gerba. I

24 don't think that was what he testified when he was

1 asked these questions. Are you familiar with his

2 answers to those questions?

THE WITNESS: No.

MS. WILLIAMS: Let's go back to my

5 pre-filed questions. I think number 18 was sort

6 of discussed yesterday, but I'd like you to answer

7 for me, has U.S. EPA reviewed the methodology and

8 preliminary data from the CHEERS study?

THE WITNESS: The U.S. EPA as an

10 organization has not. When the study was on the

11 drawing board still, I met with Mr. Efram King,

12 the Director of the Office of Science and

13 Technology within the EPA Office of Water, and

14 several of his staff were in the conference room

15 and several were on the phone, several folks from

16 the EPA's Office For Research and Development were

17 on the phone, and we discussed the protocol in

18 draft form for the CHEERS research study and got

19 feedback from Mr. King and other participants in

20 those conversations. Two U.S. EPA staff are on

21 our peer review committee that has reviewed our

22 initial proposal and our summary of the 2007

23 season, and I remain in touch with them through

24 conference calls and will continue having the peer

1 review group evaluate progress to date. So in

2 that respect individuals from relevant branches of

3 the EPA have had opportunities to comment on it,

4 but I don't have an official EPA seal of approval

5 saying, go to it, it looks good.

MS. WILLIAMS: How did you -- as far

7 as the comments that they made, how did you deal

8 with those comments?

THE WITNESS: Well, the comments

10 were generally supportive. There were suggestions

11 that came up that have been incorporated into the

12 design of the study. People from Dr. King's

13 office commented on coliphages being a potentially

14 useful indicator, pathogen indicator to measure

15 that was not part of our original research plan,

16 and at that point that was incorporated into the

17 study and we do measurements for coliphages so --

MS. WILLIAMS: Were there some

19 discussions that you just felt were not

20 appropriate to incorporate into the design?

THE WITNESS: Are you talking about

22 specifically from Mr. King and that meeting or

23 other comments along the way at peer review

24 meetings or --

MS. WILLIAMS: Specifically at that

2 meeting I guess at that point.

THE WITNESS: No, there wasn't

4 anything that was not acceptable or not doable.

MS. WILLIAMS: And the other

6 comments will be addressed through a peer review

7 process -- when you said outside of that, comments

8 received outside of that, I assume you are saying

9 is part of the peer review process?

THE WITNESS: Right, correct.

MS. WILLIAMS: And the study will be

12 peer reviewed when it's completed as well?

THE WITNESS: It is peer reviewed.

14 It remains peer reviewed, and at the time that we

15 have results and they would be submitted for

16 publication in peer review journals, that would be

17 another level of review. And certainly our peer

18 review group would absolutely review our results

19 before they are final.

MR. ANDES: Before you move on, if I

21 can follow-up, and let me go back for a minute to

22 the discussion about the NEAR Study, as well as

23 Pullford. If I can characterize your testimony

24 accurately, you talk about the NEAR study

1 indicating possible connections between certain

2 indicators and rates of illness. The Pullford

3 Study, on the other hand, did not indicate such a

4 connection?

THE WITNESS: Correct.

MR. ANDES: Those are both as to

7 primary recreation, am I right?

THE WITNESS: Yes.

MR. ANDES: Am I correct in terms of

10 studies we have discussed regarding incidental

11 contact recreation, which were the two Futrell

12 Studies and the Lee Study, two of them which dealt

13 with white water canoeing indicated some rate of

14 illness, correct?

THE WITNESS: Yes -- well, the Lee

16 Study, they all -- Lee and Futrell '92 reported

17 rates of illness. Futrell '94 did not report

18 rates of illness.

MR. ANDES: And Futrell '94 dealt

20 with other types of --

THE WITNESS: Canoeing, marathon

22 canoeing -- Futrell '94 dealt with canoe marathons

23 and rowing regattas. Lee '97 and Lee '92 dealt

24 with white water slaloming and canoeing.

MR. ANDES: So the Futrell '94 study

2 did not afford a higher level of illness, correct?

THE WITNESS: Correct.

MR. ANDES: The Lee study had a

5 report of significant rate of illness, but had no

6 control group to compare it to, am I correct on

7 that?

THE WITNESS: Yes.

MR. ANDES: Those are the incidental

10 recreational contact studies that you've referred

11 to?

THE WITNESS: Yes.

MR. ANDES: As opposed to the NEAR

14 Study, Pullford, and other studies that are primary

15 contact recreation?

THE WITNESS: Correct.

CHAIRMAN TIPSORD: Since this is a

18 new transcript, those are all part of the record

19 as exhibits and have been marked the last couple

20 days and several days.

MS. WILLIAMS: Dr. Dorevitch, I

22 think when Mr. Harley was asking you questions,

23 and in other lines of questioning, you've

24 testified that we really don't know what the risks

1 are from incidental contact recreation and we need

2 to find those out. Does that sound like an

3 accurate paraphrasing of your testimony?

THE WITNESS: Yes, we don't know

5 what they are in this setting for sure.

MS. WILLIAMS: Based on some of

7 those responses, I really want to ask you about a

8 particular statement in your testimony that I find

9 troubling and not really in line what I've heard

10 from you here in person. On page 8 you say, and

11 this is from question 20, "Our preliminary

12 observation suggests no danger to the health of

13 the population of limited contact recreators on

14 the CAWS."

MR. ANDES: I'm sorry, what page was

16 that?

MS. WILLIAMS: Eight.

MR. ANDES: And you are claiming

19 that is somehow inconsistent with what he said?

20 Would you like to elaborate on that?

MS. WILLIAMS: I'd like him to

22 explain the definitiveness of this statement

23 relative to his previous answers.

THE WITNESS: Well, what I was

1 talking about, I think I said that I was referring

2 to a preliminary analysis of the 2007 data, and I

3 said that that preliminary analysis didn't

4 identify differences in rates of gastrointestinal

5 symptoms in participants among the three groups.

6 That's only 811 people were in that data set, and

7 that's less than ten percent of our total. So I

8 don't mean to say anything conclusive that limited

9 contact recreation or incidental contact

10 recreation is risk free.

MS. WILLIAMS: You don't mean to say

12 that you are comfortable today to say you know

13 it's safe?

THE WITNESS: I don't think anybody

15 knows what the health risks are of incidental

16 contact recreation on the CAWS. I think what I

17 was saying is that, it's a little bit like what I

18 was saying about the outbreaks. Outbreaks haven't

19 been identified. The absence of known outbreaks

20 doesn't prove that there's no risk. Likewise had

21 the preliminary analysis from 2007 shown a very

22 high risk in one group relevant to the other two,

23 that would be concerning. That's not what was

24 observed. It doesn't mean that there isn't a

1 risk, but at that point I hadn't identified any

2 increased risk. I'm not saying that there is no

3 increased risk. It's entirely possible that one

4 of the groups is going to have higher rates than

5 one of the others, but that didn't show up in the

6 2007 preliminary data. And I think this is

7 consistent with what I'm saying, that conducting

8 the study, completing the study, getting to the

9 answers will tell us, are the risks increased,

10 what is that increase and how does it compare to

11 other groups.

MS. WILLIAMS: And there's certainly

13 with only 10 percent of the study participants to

14 reach that conclusion yet one way or another?

THE WITNESS: Yes, unless there were

16 a very, very high risk, it wouldn't be detected in

17 ten percent of a sample.

CHAIRMAN TIPSORD: Ms. Alexander,

19 you had a follow-up?

MS. ALEXANDER: Yes, I had a

21 follow-up on this question in the sample size. Am

22 a correct in understanding that it's your

23 testimony that a sample size of 811 people, which

24 is approximately a little less than ten percent of

1 your total, is insufficient to produce

2 statistically reliable data at this point?

THE WITNESS: It's insufficient to

4 test the hypothesis that recreation on the CAWS is

5 a different risk than recreation in one of the

6 other two groups.

MS. ALEXANDER: And that would be

8 because the number of people sampled so far is too

9 small; you have to get up to your total number

10 which I believe was 9333?

THE WITNESS: 9330, yes.

MS. ALEXANDER: How did you arrive

13 at that number 9330?

THE WITNESS: There's a statistical

15 method called sample size power calculation, and

16 there's a statistician who is part of the research

17 team, and the statistician and I developed that

18 based on certain assumptions. We assumed that 15

19 percent of the people would drop out along the

20 way, and it turns out that less than one percent

21 of the people dropped out along the way. So we

22 probably have more statistical power. We'll

23 probably be able to say more than we thought we

24 would once we get to that number.

Another assumption is rates of

2 illness in the background group, the unexposed

3 group, and that came from the rates of illness

4 among the unexposed beach goers within the NEAR

5 Study. That in the -- at a Lake Michigan Beach

6 and a Lake Erie Beach about 50 to 75 people per

7 thousand got sick who were nonswimmers. So that

8 of one of the bases we used to determine -- that's

9 one of the inputs that goes into a sample size

10 calculation.

MS. ALEXANDER: You testified

12 yesterday that the overall purpose of the study is

13 to assess risks of all uses on the CAWS, is that

14 correct, as they are currently occurring?

THE WITNESS: I'm not sure I said

16 all uses as they are currently occurring.

MS. ALEXANDER: But essentially

18 risks of use of the CAWS, including multiple

19 activities I should say.

THE WITNESS: That subset of

21 activity that fall into our definition of

22 incidental contact.

MS. ALEXANDER: Now, if one were to

24 decide to conduct an epidemiological study of just

1 one of those activities, say for instance one

2 wanted to conduct a study to determine a risk,

3 specifically of kyacking and not of the other

4 activity, would you also need a sample size of

5 9330 or might you use a different sample size?

THE WITNESS: You would use 9330.

MS. ALEXANDER: Okay. Thank you.

MS. DEXTER: Jessica Dexter with the

9 Environmental Law Policy Center. Would you say

10 that based upon your, based on your observations

11 that there are more recreators on the CAWS this

12 year than you saw last year?

THE WITNESS: It's a little hard to

14 know for sure because last year the study began on

15 August 4th, so sort of past the midpoint of the

16 summer. Whereas this year we began in April. So

17 we've certainly enrolled many more people. At

18 some locations I think use is higher. I can think

19 of one particular location where use seems to be

20 lower, but at North Avenue on the west side of the

21 turning basin use is higher. I don't know how

22 much angling took place on the main stem last

23 year, but this year there are a number of events.

24 So some places it's higher. It seems at the

1 Skokie Rowing Center there's less activity. There

2 may be less at Worth and Alsip this year. These

3 are just impressions. It's not definitive. But

4 we do collect the kind of data that would allow us

5 to compare year to year changes in use by

6 location.

MR. ANDES: I'd like to follow-up

8 going back to the size of the study. As I

9 understand it right now, you don't know which

10 particular uses might have more or less exposure?

THE WITNESS: Right.

MR. ANDES: That's one of the issues

13 that the study will help determine?

THE WITNESS: Correct.

MR. ANDES: So at this point does it

16 make sense to look at all uses and gather

17 information about them all or would you highlight

18 one and collect information only about that one?

THE WITNESS: Well, I wouldn't zero

20 in on any one at this point. I think the question

21 that we're trying to address is about the risks of

22 current uses. So since there are multiple current

23 uses, we enroll people doing a variety, and I'm

24 not starting with any assumptions that one

1 activity is more or less risky than the others.

2 So, no, I don't think it would be wise if we had

3 restricted it to one particular recreation

4 activity.

MR. ANDES: If you ended up finding

6 that there were particular issues as to one or

7 another of those activities, there's certainly the

8 opportunity for further assessment of that issue,

9 which could actually include going back as the

10 Illinois EPA identified and rerunning the risk

11 assessment model with the new inputs that you

12 would have provided, correct?

THE WITNESS: I think that our

14 inputs would be useful for future risk

15 assessments, yes.

MR. ANDES: Thank you.

MS. WILLIAMS: Dr. Dorevitch, did

18 you just testify that the NEAR Study found 50 to

19 75 illnesses in the nonexposed group?

THE WITNESS: It varied by beach,

21 but that ballpark of about 75 per thousand

22 nonswimmers got sick.

MS. WILLIAMS: I guess what's

24 confusing me or what I want to understand a little

1 bit better is, that seems like a pretty wide

2 variation, 25 per one thousand given what we're

3 trying to find out in your study. Do you think

4 it's a range? Do you think there was enough

5 information in the NEAR study to say 75?

THE WITNESS: Well, that wasn't the

7 only --

MS. WILLIAMS: I want to understand

9 what the -- I don't want to say margin of error.

10 That's not the right terminology, but what is the

11 variability?

THE WITNESS: Variability? Well,

13 that wasn't the only data source I looked at. I

14 looked at studies of vaccine safety where

15 thousands of people will get a vaccine and

16 thousands of people will get a placebo, and they

17 track symptoms as a way of monitoring side effects

18 that follow vaccination. So I looked at rates of

19 gastrointestinal symptoms among the people who got

20 placebos, and that came out, again, about the

21 same. That was about 50 per thousand.

Looking at the NEAR data is better

23 because our questions -- our questionnaires come

24 from their questionnaires. So the way you ask the

1 question has a lot to do with the results you get

2 and -- so to keep this in apples to apples

3 comparison, I relied more heavily on the NEAR

4 Study rate of illness in unexposed, than say the

5 vaccine trials where they assessed development of

6 symptoms in a different way. But there is

7 variability. Even within the NEAR Study they had

8 rates of -- they would go to the same beach

9 multiple times, and on some days the unexposed

10 rate was 50 per thousand, and other days it was

11 100 per thousand. So this bounces around. There

12 isn't a -- I can't think of a better way to

13 predict what rates of illness will be in our

14 unexposed group, other than the NEAR Study

15 unexposed group where they use essentially the

16 same questionnaire to determine the same

17 information.

MS. WILLIAMS: But you'll rely on

19 the actual rates that you find in developing the

20 the NEAR Study?

THE WITNESS: Of course.

MS. WILLIAMS: And at this point in

23 your primarily results are you finding an

24 increased risk to recreators generally over the

1 control group?

THE WITNESS: Well, we don't really

3 call any of them control. There's an unexposed

4 group, a general use group, and a CAWS group, and

5 that preliminary analysis of only less than ten

6 percent of the data showed equivalent rates.

MR. ANDES: Equivalent rates between

8 the unexposed group and the CAWS?

THE WITNESS: All three groups.

MR. ANDES: And the general use.

THE WITNESS: All three groups.

12 Again, I don't mean to say that we won't find

13 differences or there aren't differences, but just

14 checking to make sure that we're not sitting on an

15 epidemic of really high rates in one group, I

16 don't see that so far. I don't see anything that

17 looks like that.

MS. WILLIAMS: But when you say

19 epidemiologic, you mean the same as an outbreak?

THE WITNESS: I mean, a big public

21 health problem. I mean an outbreak, an

22 epidemiologic, higher number of disease than

23 expected, yes.

MS. WILLIAMS: Number 22, can you

1 explain the statement, "Preliminary analysis of

2 2007 data shows that the assumption regarding the

3 duration of various recreational activities were

4 quite accurate"?

THE WITNESS: I can, and you might

6 not be surprised that I have a handout again.

MR. ANDES: No chart, just handouts.

CHAIRMAN TIPSORD: Darn, an hour and

9 a half in before our first exhibit.

MR. ANDES: We overdosed on them

11 yesterday.

CHAIRMAN TIPSORD: I've been handed

13 a color chart, plural, stapled together with QMRA

14 at the top. If there's no objection, we'll mark

15 this as Exhibit 111. Seeing none, it's

16 Exhibit 111.

(Document marked as Exhibit

111 for identification.)

THE WITNESS: So if I can walk you

20 through it. These are comparisons of some of the

21 assessment, some of the assumptions that went into

22 the risk assessment which are things that we've

23 observed in the CHEERS study. Again, not all of

24 the inputs into the risk assessment model can be

1 validated or refuted in the CHEERS study, but they

2 did make certain assumptions about durations of

3 recreational activity. I have on this handout on

4 the top half the risk assessment assumption about

5 the duration of specific recreational activities,

6 and on the bottom half what we observed in CHEERS.

What we have observed in CHEERS

8 though, this is not limited to CAWS recreation.

9 This would be from both the CAWS group and the

10 general use group, and what I meant when I said

11 that the assumptions were accurate, looking at the

12 first page, it says "pleasure boating." In the

13 risk assessment, they assumed a minimum duration

14 of one hour. The most typical duration would be

15 four hours, and the maximum would be eight hours.

16 What we observed is that the minimum duration was

17 one hour. The most frequent was four hours. The

18 maximum was 11 hours. So this is pretty similar

19 form -- this is similar to the triangle that they

20 have in terms of the ends of the triangle and the

21 peak of that triangle. For canoeing, the risk

22 assessment -- this is now the back side of that

23 first page -- for canoeing in the risk assessment,

24 they assumed a minimum of one hour, a mode of two

1 hours, a maximum of five hours. We observed

2 canoening generally was of shorter duration. The

3 most common was under one hour, and there were

4 some that went out to three hours, between three

5 and four hours. So on this end I'd say that the

6 risk assessment assumed longer durations than we

7 observed.

For fishing the distribution

9 does look different. In the risk assessment they

10 assumed a mode, a most common duration of three

11 hours, and the most common durations that we

12 observed were between 0 and 2 hours. It tailed

13 off quickly, whereas they assumed sort of a more

14 is symmetric triangle. This would be mean that

15 they assumed longer durations of recreation than

16 we've observed, and then on the final page is

17 kayaking, and I don't think the risk

18 assessment -- I didn't see the risk assessment's

19 assumptions about kayaking duration. I'm not

20 sure if they had assumptions about that.

MR. ANDES: I think they were

22 treating it based on certain types of activities

23 relative to the amount.

MS. WILLIAMS: I thought you were

1 talking out loud.

THE WITNESS: But we have some

3 observations about the duration of kayaking. So

4 what I said, that assumptions were accurate or if

5 anything a little conservative, it's about

6 duration of specific recreational categories, and

7 I don't mean to make it more than that, but that's

8 the comparison.

MS. WILLIAMS: My understanding, and

10 this may be incorrect, is that kayaking and

11 canoeing were treated the same. And the risk

12 assessment shows there is a difference one way or

13 another.

THE WITNESS: That's a possibility.

15 Well, they both seem to be different than boating,

16 than say motor boating. They both seem to be

17 shorter duration activities, but it looks like --

18 oh, I'm sorry, I skipped fishing.

MS. WILLIAMS: No, no, you said

20 that.

MR. ANDES: If canoeing and

22 kayaking is the same, which I believe is right of

23 the risk assessment, if you look at the canoeing

24 distribution assessment and applied to kayaking

1 what would be your conclusion?

THE WITNESS: Well, they assumed a

3 mode of two hours, our most frequent duration of

4 kayaking was three hours. So we observed

5 something a little bit longer in duration. They

6 assumed a maximum of five hours. We observed

7 kayakers that went all the way between hours

8 seven and eight. So it looks triangular. It does

9 have sort of -- it's not an isometric triangle.

10 Sort of the tail leads to the right, but for

11 kayaking, think we observed longer duration of

12 activity than canoeing, and they may be two

13 different animals that have different durations

14 that the shape of the canoeing triangle from the

15 risk assessment looks similar to -- I mean, it

16 looks similar to what we see for kayaking, but for

17 canoeing we see shorter durations.

MR. ANDES: So in terms of canoeing,

19 they in fact assume a fair number of expeditions

20 are three hours or longer, and yours indicates

21 that the bulk are two to three hours, between two

22 and three hours, very little after that; am I

23 correct?

THE WITNESS: For canoeing, and I'm

1 sorry, for kayaking, right.

MR. ANDES: Beyond three hours,

3 their distribution assumes a fair number, a fair

4 part of their distribution is after three hours?

THE WITNESS: Right, and for

6 canoeing that's even more true that they assume

7 longer durations than we observed.

MR. ANDES: Thank you.

MS. WILLIAMS: I understand these

10 are very preliminary?

THE WITNESS: Yes.

MS. WILLIAMS: Would you think

13 though one thing your study might be able to show

14 is whether the risk assessment model should treat

15 those two activities differently?

THE WITNESS: Yes.

MS. WILLIAMS: I think I understand

18 number 24, but maybe I should explain it. When

19 you identify the participants recruited for

20 CHEERS, are they all different people or could the

21 same individual be included multiple times?

THE WITNESS: The same individual

23 could be included multiple times.

MS. WILLIAMS: And could you explain

1 the duration, distribution for that, how long in

2 between?

THE WITNESS: Somebody who enrolled

4 is followed for 21 days. Once somebody completes

5 their final day 21 phone call, which may only

6 happen on day 22 or 23 if we can't reach them on

7 day 21, they are able to re-enroll.

MS. WILLIAMS: And will there be a

9 way to tell at the end exactly how many

10 individuals are included?

THE WITNESS: Yes.

MS. WILLIAMS: There will be a

13 tracking of whether it's 8000 or something in

14 distinct individuals somewhere in this?

THE WITNESS: Yes, we'll be able to

16 tell that.

MS. WILLIAMS: On page 8 you state,

18 "Well, inconsistencies between our observations

19 and those of the UAA regarding the frequency of

20 specific recreational activities and the

21 distinction between uses and users are likely due

22 to different methodologies." Could you explain

23 what you are referring to here?

THE WITNESS: Well, what I'm

1 referring to is a comparison of our use survey,

2 not the refusal tally, not the people who we

3 approach to enroll but don't enroll, but when our

4 staff are out there tallying how many people are

5 launching, are beginning new recreational

6 activity, the summary of that information gives --

7 paints a different picture of use of the CAWS than

8 what was in the UAA report. Specifically there

9 seems to be more fishing and boating especially

10 noted on the north branch in the UAA than what we

11 observed, and we're doing it different ways. I

12 don't have a real clear picture of how the UAA

13 process worked for tallying use, but it seems to

14 me that fishing is less common, especially on the

15 north branch in relation to other activities, and

16 the north shore channel in relation to other

17 activities and motorboating, again, is a lower

18 percent of recreational activity on the north

19 branch than what was summarized in the UAA report.

MR. ANDES: So if I'm clear, you

21 found more fishing, less power boating?

THE WITNESS: We found less fishing

23 and less power boating.

MR. ANDES: Okay, I'm sorry.

THE WITNESS: We found more,

2 relatively more canoeing, kayaking and rowing.

MS. WILLIAMS: And I think you are

4 being very polite in your references to the UAA

5 because I'm not sure there was a methodology that

6 was trying to very accurately give numbers to

7 users as opposed to identifying that the use was

8 occurring.

THE WITNESS: Yes, I can tell that

10 there were two approaches. There was a going out

11 and counting people approach, and there was a

12 getting information from boat launches, license

13 fees, kayak vendor receipts, things like that.

14 But I know that our method is fairly rigorous in

15 protocol driven, and I can evaluate the strengths

16 and limitations of that method. I couldn't say

17 that about the UAA.

MS. WILLIAMS: And that's really

19 more what my question is getting at. What are the

20 some of the strengths -- I mean, I am not sure I

21 understand your methodology exactly.

THE WITNESS: Our methodology is

23 that a person, at locations where we conduct the

24 research study where we are enrolling study

1 participants and sampling water, a member of the

2 research team is the use survey person. That's

3 their job for the day or for several hours and

4 they can rotate. And they have a clipboard, and

5 there's a chart where they tally new uses. In

6 other words, somebody passing by on a boat isn't a

7 new use. Somebody launching a boat is a new use.

8 Three people going out in one boat is three uses.

9 Not one. We don't count people who are returning.

10 We don't want to count the same person twice. So

11 if we count somebody when they launch, we don't

12 count when they return. So I think that it's a

13 pretty good way of estimating use, new uses at a

14 location per unit of time. It's not a

15 comprehensive rereview of everything that's going

16 on all over the waterways. But, you know, I kind

17 of know what my measurements are at the end of the

18 day.

MS. WILLIAMS: And I think you've

20 explained what my question 28 was asking. In your

21 testimony I think it implied or in the letter

22 attached to your testimony, I'm sorry, it implied

23 that the same person was enrolling new

24 participants as was also counting recreators, and

1 to me that seemed like a lot?

THE WITNESS: No, it isn't that

3 way. The priority of the staff is to interview

4 and recruit study participants. So if let's say a

5 group goes out kayaking and twenty people come

6 back at once, we're not going make them wait in

7 line so the use survey can be done. The use

8 survey person would be pulled and would do

9 interviews and we would have missing data during

10 those intervals when no data is collected. We

11 wouldn't assume that no people are launching, no

12 observations are made. That generally doesn't

13 happen though. That's unusual.

We also obtain information from

15 organizers of events such as Friends of the

16 Chicago River Flat Water Classic, the Dragon Boat

17 Races, the Mid-America Canoe Marathon. Just

18 different activities where it isn't always easy to

19 count all the people, but the organizers generally

20 have information about the number of people who

21 participated in an event.

MS. WILLIAMS: Okay, I think that

23 helps. So when I asked how do they count

24 recreators while simultaneously signing up

1 participants, is the answer they stop counting?

THE WITNESS: Yes. They tally

3 every ten minutes. So if they start at

4 10:00 a.m., at 10:10 they will write down the

5 number of people who began using the waterway

6 during that ten-minute interval. So if somebody

7 is interviewing a study participant during that

8 time, that ten-minute block would be empty and we

9 wouldn't know.

MS. WILLIAMS: And if you are

11 counting from 10:00 to 10:10 and you've kind of

12 got seven or eight people, say you have eight

13 people and it's 10:07, do you discount that loss

14 because he wasn't able to complete the ten minutes

15 or do you take the numbers that were --

THE WITNESS: I think we have to --

17 I don't know if that's come up, but I think it

18 would be tricky unless they kept very accurate

19 time of when they stopped and sort of prorate it

20 as a seventy-percent of a block, I think we

21 probably just consider the entire block missing.

MS. WILLIAMS: I don't think I have

23 any other questions for Dr. Dorevitch.

CHAIRMAN TIPSORD: Mr. Harley?

MR. HARLEY: Could an individual who

2 is exposed by pathogens by the CAWS be

3 asymptomatic and transmit the disease to others?

THE WITNESS: That's theoretically

5 possible.

MR. HARLEY: How would that happen?

THE WITNESS: Just like you said. A

8 person who is asymptomatic with an infection

9 transmits it to another person. Usually we are

10 talking about intentional illness. It's the

11 fecal-oral route. I think I was in the room when

12 Dr. Gerba explicitly explained a little bit more

13 about fecal-oral transmission, but if they didn't

14 wash their hands carefully after going to the

15 bathroom, they could spread the infection to

16 another person, whether they are symptomatic or

17 not symptomatic.

MR. HARLEY: In your epidemiological

19 study, are you looking at the universe of the

20 exposed individuals or are you really focusing on

21 the users of the waterway?

THE WITNESS: We're only able to

23 study people who enroll in the research. So if

24 there's a user who not a study participant, I

1 don't know if they've gotten sick if that's what

2 you mean.

MR. HARLEY: So it's possible that

4 there are individuals who are experiencing

5 secondary exposures who are not being assessed in

6 your study?

THE WITNESS: Yes. I think we

8 talked about this yesterday, that we do ask

9 questions about ill family contacts, other people

10 in the family who may have gotten sick. But the

11 study is not designed to be able to -- the study

12 is not designed to establish secondary attack

13 rates, rates of illness that you are describing.

MR. ANDES: If I can follow-up on

15 that. Is it your understanding that the Geosyntec

16 Risk Assessment Report did deal with secondary

17 attack rates?

THE WITNESS: They did, but our

19 study is based on the NEAR Study, which does not

20 do that, and so we don't do that either.

MR. ANDES: So let me ask then,

22 would it be productive to look at risk assessment

23 and the epidemiological study together perhaps to

24 get a full picture of what the potential risk is,

1 particularly since they look at things in

2 different ways.

THE WITNESS: I think it's good to

4 look at both. I'm not exactly sure how we put it

5 all together to get a comprehensive picture of

6 secondary attack rates, but it's two different

7 ways of handling -- you could just add it

8 together, but you might want to look at both to

9 give you a fuller perspective. Yes, it would be

10 worth looking at.

MR. HARLEY: So the record is clear,

12 as part of your study, secondary attack rates or

13 secondary disease occurrences were not something

14 that you assessed beyond the immediate family?

THE WITNESS: That is correct. Just

16 like the other cohort studies of primary contact

17 recreation in the U.S., we're not doing that

18 either.

MR. HARLEY: One other question that

20 I have for you is, is it as focus of your study

21 not only -- let me strike that.

Does your study assess the

23 likelihood of an outbreak?

THE WITNESS: Our study --

MR. ANDES: How are you using

2 outbreak?

MR. HARLEY: In the way that he

4 described it in his testimony yesterday.

THE WITNESS: Our study is focusing

6 on the development of illness. There's endemic

7 disease and epidemic disease. Endemic disease are

8 sort of the background rate of illness. Epidemic

9 disease is a greater than expected number of

10 cases. Our study is looking at endemic disease.

11 Is there a certain percent of the population with

12 water exposure who has a higher background rate

13 than the unexposed group. On top of that, it's

14 conceivable that an epidemic could occur. If ten

15 percent of the people have GI symptoms in their

16 unexposed group and 11 percent have symptoms in

17 the two water exposed groups, and one day at a

18 particular launch for people doing a specific

19 activity, we see a rate of 20 per hundred, we see

20 a rate of 20, that would sound like an epidemic

21 superimposed on this endemic rate slightly above

22 the unexposed population's rate.

MR. HARLEY: But your study is not

24 focused on the risk of epidemic outbreak; your

1 study is focused on endemic occurrence?

THE WITNESS: It's much harder to

3 track endemic rates than epidemic. So we're

4 certainly able to identify higher than expected

5 rates within our study. We're able to evaluate

6 day-to-day rates as well.

CHAIRMAN TIPSORD: Ms. Alexander?

MS. ALEXANDER: Yes, I have a few

9 general follow-ups.

Dr. Dorevitch, would you say

11 there are some types of risk that are more

12 conducive to being studied through epidemiological

13 study than others?

THE WITNESS: Well, something that

15 is easily measurable is easier to study than

16 something not measurable. I'm not sure what you

17 mean.

MS. ALEXANDER: Well, perhaps I can

19 clarify. Would you say that frequently occurring

20 behavior or occurrences are easier to assess

21 through epidemiological study than infrequent

22 occurrences?

THE WITNESS: Well, infrequent

24 things are harder to count, but if you are talking

1 about the risk of infrequent things, it would

2 depend. If there's a very high risk, it may be

3 easier to study in a smaller number of people than

4 a very subtle risk in a larger sample of people.

MS. ALEXANDER: Well, just to take

6 as a hypothetical, if you are conducting a one

7 year, two or three year epi study, a broadly

8 defined a public health risk study, it would be

9 easier to study, for instance, automobile traffic

10 deaths than airplane deaths, right, because you

11 have more autos on the street, more frequent

12 occurrences, you might not ever have an airplane

13 crash during that period, right?

THE WITNESS: That's right.

MS. ALEXANDER: But you wouldn't

16 want to conclude from the fact that there was no

17 airplane crash that there's no risk to air travel

18 just that it couldn't be studied effectively in a

19 three-year epi study because there haven't been

20 enough crashes to assess in that time frame,

21 correct?

THE WITNESS: If there were no

23 crashes in that time frame, you could say there

24 were no crashes.

MR. ANDES: If I can follow-up on

2 that for a moment. If there were a high number

3 of airplane flights during that time period but

4 no crashes, couldn't you reach conclusions that

5 airplane travel is generally safe because there

6 were no crashes?

THE WITNESS: The rate you would

8 observe would be zero. So that's information --

9 it doesn't mean that there was no information

10 obtained by studying it. There were no crashes,

11 and there were car crashes, and there's something

12 to be said there.

MS. ALEXANDER: But you probably

14 wouldn't conclude from that data that there zero

15 airplane crashes in one or two or three years that

16 the risk of airplane travel was zero?

THE WITNESS: Well, statistics never

18 talk about zero, but things approach zero. And

19 based on the three-year period, one thing that you

20 could do is you could say, well, there were a

21 million airplane flights and zero crashes; there

22 were 20,000-car crashes and 200,000,000 vehicles.

23 You could say had there been one crash of an

24 airplane, what would the rate have been. And

1 there are statistical tests that could be done to

2 say given that period of observation, what do we

3 think had that study been conducted multiple

4 times, multiples years what the difference in

5 rates would have been. So zero car crashes

6 doesn't mean zero information. That's actually

7 helpful information.

MS. ALEXANDER: Well, bringing this

9 back to the CAWS, is it fair to say that

10 incidental contact recreation in the CAWS overall

11 was fairly conducive to an epidemiological study

12 in the sense that it happens reasonably frequently

13 and you could enroll some reasonable number of

14 participants?

THE WITNESS: I don't know if there

16 is a lot about the study that's easy, but there

17 are thousands of people who use the CAWS and we

18 are able to enroll them and follow them over time.

MS. ALEXANDER: Would it also be

20 fair to say that the risk of more infrequent

21 occurrences on the CAWS, and I would use as an

22 example a child falling out of a boat near an

23 outfall would not be as conducive to epi study,

24 just as the airplane crashes would be; would that

1 be correct?

THE WITNESS: I didn't say the

3 airplane crashes were, that such a study is not

4 helpful. It sounds like you've introduced a very

5 substantial statement about car crashes are common

6 and airplane crashes are rare. I think if we are

7 talking about a child failing out of a boat by an

8 outfall that I agree that sounds like something

9 that would be very rare. The study isn't actually

10 designed to make those kinds of observations.

11 Child falling out of boat, yes. Falling out of

12 boat by outfall, that isn't something specifically

13 we would record. But if it isn't observed or

14 isn't observed frequently, that would suggest that

15 it doesn't occur commonly.

MS. ALEXANDER: But that would not

17 lead to a conclusion that there were in fact no

18 risks associated with a child falling out of the

19 boat, particularly if it was near an outfall, is

20 that correct? Just that it doesn't occur

21 frequently?

THE WITNESS: Just that I wouldn't

23 say that planes never crash.

MS. ALEXANDER: Okay, thank you.

CHAIRMAN TIPSORD: Anything further

2 for Dr. Dorevitch?

Thank you very much. We

4 appreciate your testimony. And with that we will

5 take a ten-minute break and come back and start

6 with Suzanne O'Connell.

(Whereupon a brief recess was

taken, after which the

following proceedings were

had:)

CHAIRMAN TIPSORD: We're back on the

12 record. Welcome, Ms. O'Connell.

Can we have Ms. O'Connell sworn

14 in.

SUZANNE O'CONNELL

16 having been first duly sworn, was examined and

17 testified as follows:

CHAIRMAN TIPSORD: If we can have a

19 copy of her testimony, we'll enter it into the

20 record. Thank you very much. And I will enter

21 the pre-filed testimony of Suzanne O'Connell, if

22 there's no objection. Seeing none, here is

23 Exhibit 126789.

And I believe the IEPA is the

1 first of the group with questions.

MS. DIERS: Good morning,

3 Ms. O'Connell. My name is Stefanie Diers and I'll

4 be asking you questions on behalf of the IEPA.

I'm going to begin with question one

6 on our pre-filed testimony.

Are the figures the most current

8 information available concerning the number of

9 CSOs in the CAWS and lower Des Plaines River?

THE WITNESS: Yes, to my knowledge.

MS. DIERS: And I believe the

12 information was 2005, 2006 and 2007; is that

13 correct?

THE WITNESS: That's correct.

MS. DIERS: Do you have any

16 information thus far for 2008 on the two CSOs?

THE WITNESS: On the two CSOs.

MS. WILLIAMS: In 2008 any of the

19 CSOs.

THE WITNESS: We submit a report

21 quarterly to the IEPA so we do have data.

CHAIRMAN TIPSORD: Ms. O'Connell,

23 you are going to have to speak up.

THE WITNESS: We do keep a record

1 and we submit them to the IEPA on a quarterly

2 basis. So far this year we've submitted, for

3 January through March quarter, we submitted a

4 report in May, and then for the second quarter we

5 submitted that report in August. And so we'll be

6 submitting another one in November for the third,

7 and next February for the fourth quarter of 2008.

8 So we do have some data.

MR. ANDES: If I can interrupt here

10 for a moment. One thing we do have as a handout

11 and as a chart is the attachment which shows the

12 locations of the combined sewer overflow points.

13 So if that's okay, we can put that up and pass out

14 copies.

CHAIRMAN TIPSORD: And that's the

16 attachment to Ms. O'Connell's testimony?

MR. ANDES: Yes.

CHAIRMAN TIPSORD: We won't enter

19 that as a separate Exhibit.

MS. DIERS: How many overflows are

21 expected to occur after the completion of TARP?

THE WITNESS: I don't know.

MS. DIERS: No. 3, how many times

24 does an average CSO discharge per year?

THE WITNESS: Well, I'm not sure

2 what you would call an average CSO. I'm not sure

3 that there is such a thing so that's difficult to

4 say. There's many variables involved in the CSO.

MS. WILLIAMS: Can you explain some

6 of those many variables you are referring to in

7 the CSOs?

THE WITNESS: Well, it's the

9 duration of the rainfall, the intensity of the

10 rainfall, the distribution of the storm that's

11 occurring and that can vary greatly.

MS. DIERS: Finally, with question

13 four, do you know how many of the overflows you

14 mentioned on page 2 of your pre-filed testimony

15 occurred during the recreational season proposed

16 by IEPA?

THE WITNESS: Yes. In 2005 there

18 were a total of 33 days that had CSO activity, and

19 22 of those days occurred during the recreation

20 season. In 2006 there were 55 days out of the 65

21 that had CSO activity occur in recreation season,

22 and in 2007 there were 37 out of the total of

23 42 days that occurred in the recreation season.

MS. DEXTER: Jessica Dexter with the

1 Environmental Law Policy Center, do you know how

2 many of those days might have happened

3 consecutively?

THE WITNESS: Offhand, no, but I

5 seem to have track of when those occurred, yes.

MEMBER GIRARD: Can I ask a quick

7 follow-up. Can you point to your testimony where

8 you define recreation period or tell us what you

9 refer to as the recreation period?

THE WITNESS: I don't think it's in

11 my report, but my understanding is in the draft

12 regulation. It's March 1st through November 30th.

MEMBER GIRARD: Thank you.

CHAIRMAN TIPSORD: We'll turn it to

15 The Environmental Law and Policy Center.

MR. ETTINGER: This is Albert

17 Ettinger. I'm going to move down here. It's a

18 little hard to be heard from the end of the table.

Let the record show that, first

20 of all, I'm wearing my Bavarian jacket in honor of

21 our Eastern River Restoration project and October

22 Fest.

And my first question is, are

24 there CSO discharges that discharge into Lake

1 Michigan?

THE WITNESS: I am not aware of any

3 within the District's jurisdiction.

MR. ETTINGER: Do you know OF any

5 that are within or near the City of Chicago?

THE WITNESS: Well, the City is in

7 our jurisdiction.

MR. ANDES: She's not talking about

9 Milwaukee.

MR. ETTINGER: Okay, good. Looking

11 at this map, which I gather was attached to your

12 testimony, I see a couple points here that appear

13 to discharge to Grand Calumet. Are those above or

14 below the O'Brien Lochs.

THE WITNESS: The Grand Calumet is

16 below the O'Brien Lochs.

MR. ETTINGER: Are there any

18 discharges into the Calumet River below the

19 O'Brien Lochs?

THE WITNESS: Below?

MR. ETTINGER: On the lake side of

22 the O'Brien Lochs.

THE WITNESS: We have two pump

24 stations.

MR. ETTINGER: And they have CSO

2 discharges?

THE WITNESS: Yes.

MR. ETTINGER: Mr. Andes and I

5 discussed the second question, and I guess we were

6 just going to have you or he make a statement as

7 to what the data was rather than me try to do it

8 through examination.

THE WITNESS: Well, the data is the

10 data that we do submit to the IEPA on a quarterly

11 basis. So it's any monitored CSO that has

12 discharged, we log it and send the information to

13 the IEPA.

MR. ETTINGER: Do you do that as to

15 the both CSOs and the City's CSOs?

THE WITNESS: All monitored CSOs no

17 matter who they are.

MR. ETTINGER: That's within your

19 jurisdiction?

THE WITNESS: Yes.

MR. ETTINGER: But not Milwaukee?

THE WITNESS: Not Milwaukee.

MR. ETTINGER: Thank you. We can

24 get those from either you or IEPA? Are they

1 discharge monitoring reports or what do you call

2 them?

THE WITNESS: It's a quarterly CSO

4 monitoring report. It's submitted separately from

5 the DNRs.

CHAIRMAN TIPSORD: Anything further

7 for Ms. O'Connell? Thank you very much, Ms.

8 O'Connell. We'll move on to Dr. Rijal, if I'm

9 pronouncing that correctly?

Can we have her sworn in, please.

GEETA RIJAL

12 having been first duly sworn, was examined and

13 testified as follows:

CHAIRMAN TIPSORD: And if we have a

15 copy of her testimony.

MR. ANDES: We do. Since when with

17 attachments it's a, I believe, 886 pages we have

18 that on disk.

CHAIRMAN TIPSORD: Okay. If there's

20 no objection, I will mark Dr. Rijal's testimony as

21 Exhibit 133 with the CD Rom attachment as part of

22 that Exhibit. Seeing none, it's Exhibit 113. And

23 I believe we start with Ms. Alexander.

EXAMINATION

MS. ALEXANDER: Good morning,

3 Dr. Rijal. I'm Anne Alexander with the Natural

4 Resource Defense Council, and I have just a couple

5 preliminary questions before I start with the

6 pre-filed questions.

Did you have any involvement

8 with the preparation or review of the Microbial

9 Risk Assessment document that's at issue?

THE WITNESS: What do you mean by

11 involvement?

MS. ALEXANDER: I'm referring to the

13 document prepared by Geosyntec in connection with

14 this rule making.

THE WITNESS: I was involved

16 starting from the request of the proposal stage

17 and we had reviewed the proposals and finally the

18 project was awarded to Geosyntec, and we had

19 followed up with interim report until the end of

20 the final report.

MS. ALEXANDER: Were you involved in

22 any manner -- once Geosyntec was awarded the

23 contract, were you involved in any manner in the

24 substance of the study either in terms of review

1 or commenting on drafts or commenting on

2 procedures and protocols, methodologies or

3 anything like that?

THE WITNESS: No, because the

5 Geosyntec advisory team, panel, was in there. So

6 we based it on their final comments and their

7 study design. So we didn't comment on the

8 methodology they selected for the study. And at

9 that time to be correct, I was not -- I was not

10 the head, section head of the microbiology

11 section. There were supervisors at the upper

12 management level. And we participated in terms of

13 the scientific methodology they were proposing in

14 the study. We were involved in that. There was

15 some discussions, but there were no written

16 comments exchanged.

MS. ALEXANDER: What was the nature

18 of the discussions? Was there any disagreement

19 concerning methodologies and protocols?

THE WITNESS: If I recall, based on

21 my involvement during that, I don't recall any

22 disagreement.

MS. ALEXANDER: And have you

24 reviewed the final Microbial Risk Assessment?

THE WITNESS: Yes, I have.

MS. ALEXANDER: Have you reviewed

3 any of the correspondence between the districts

4 and/or Geosyntec and the United States

5 Environmental Protection Agency.

THE WITNESS: Yes, I was.

MS. ALEXANDER: Were you involved in

8 any manner in responding to that?

THE WITNESS: What do you mean

10 involvement in responding? Because we received

11 the response and comments from EPA, and the

12 Geosyntec team you know prepared the comments and

13 we sent those comments to EPA.

MS. ALEXANDER: My question is were

15 you in any way substantively involved in preparing

16 the substance of those comments or did you merely

17 pass them along to U.S. EPA?

THE WITNESS: Just passed it along

19 to the EPA.

MS. ALEXANDER: Now, regarding the

21 two District reports that are addressed in your

22 pre-filed testimony, who if anyone at the District

23 worked with you on preparation of those?

THE WITNESS: Which report are you

1 referring to?

MS. ALEXANDER: Referring to

3 District Report No. 2003-20, which is cited

4 starting on page 2 of your pre-filed testimony and

5 District Report No. 2007-79 cited starting at

6 page 3 of your testimony.

THE WITNESS: So you want me to list

8 all of the authors of this report?

MS. ALEXANDER: Are there a lot?

THE WITNESS: Well, I can just go,

11 to begin with the first report which is 2003-20, I

12 was the primary author, and we had a

13 biostatistician Zenal Abadin, Dr. Zamuda and

14 Bernard Sawyer, and another report --

MS. WILLIAMS: Can we just stop for a

16 second. Is that the same as attachment 3 to your

17 testimony?

THE WITNESS: Yes, I believe.

MS. ALEXANDER: I don't know that

20 there's any point reading into the record the

21 names of a lot of people who are listed on a

22 document. Is there a specific place that you are

23 looking on the study document itself that's in the

24 record already?

THE WITNESS: Oh, okay, no, I

2 thought you wanted me to name all those people who

3 were involved in the studies.

MS. ALEXANDER: Yes, I am looking.

5 All I have is a PDF page unfortunately. But I see

6 that you have listed a biostatistician, a

7 microbiologist and an assistant director of

8 research and development. I should rephrase the

9 question not to waste the room's time.

Were any people of those listed

11 on the documents involved in the preparation of

12 these studies? Anyone at the district or

13 otherwise?

THE WITNESS: Well, involvement does

15 involve the labs that did do that phase. So we

16 did acknowledge them. But the report is -- based

17 on the report prepared, these were the people that

18 were involved in the completion of this project.

MS. ALEXANDER: Turning to the

20 pre-filed questions. Question No. 1, which is

21 regarding District Report No. 2003-20, based on

22 sampling conducted in 2002, am I correct that the

23 sampling essentially compared fecal chloroform

24 levels at a monitoring location on the Des Plaines

1 River with level at the monitoring location

2 downstream of the Stickney Plant?

THE WITNESS: Yes.

MS. ALEXANDER: And were the fecal

5 chloroform levels at the Des Plaines River site

6 found to be higher in levels than the Sanitary and

7 Ship Canal site?

THE WITNESS: Yes.

MS. ALEXANDER: How many miles

10 downstream of the Stickney Plant was the

11 monitoring location of the Sanitary and Ship

12 Canal?

THE WITNESS: The sampling location

14 at the Sanitary Ship Canal is approximately

15 25 miles downstream of the Stickney plant.

MS. ALEXANDER: Why did you choose a

17 location so far downstream? What was the

18 scientific purpose in selecting that?

THE WITNESS: Because I was told to.

MS. ALEXANDER: By?

THE WITNESS: I'm just -- if you

22 have time, I'm going to give you what triggered

23 the study because of -- and there is a follow-up

24 question I think we have like why did you conduct

1 the study when there was no rule making, so I'm

2 going answer it also right now. That Stakeholder

3 Committee Meeting which was established I believe

4 in 2002 and the District went into agreement with

5 the Agency and with the IEPA consultants. This

6 was the discussions on the issue raised for use of

7 day-to-day analysis on the CAWS, and there were

8 several meeting, summary meetings reports that we

9 didn't attend, but we got the meeting minutes and

10 the issue raised in that meeting was to meet the

11 water quality standards to achieve water quality

12 standards for the lower Des Plaines River. And

13 this is in the meeting minutes of the May 16,

14 2002 -- I have that -- and I do have also the

15 agreement letter which was addressed -- where the

16 discussion about Lake Michigan -- not Lake

17 Michigan -- the lower Des Plaines River water

18 quality standard was discussed. And on that basis

19 we decided to select -- because the lower

20 Des Plaines River is below the confluence of the

21 Des Plaines River and the Chicago Sanitary Ship

22 Canal location where we sampled the Lockport

23 location.

So in order to achieve the water

1 quality standards at the lower Des Plaines River,

2 we wanted to understand the microbiology of the

3 fecal chloroform levels at these two locations to

4 see whether it is -- the district is the primary

5 source of FC burden at the lower Des Plaines

6 River. So that factor was used as one of the

7 issues that we would like to address before the

8 rule making.

MS. ALEXANDER: So the focus in other

10 words in a sense was the lower Des Plaines River?

THE WITNESS: Yes.

MS. ALEXANDER: Not anything in the

13 CAWS per se?

THE WITNESS: During that time, yes.

MS. ALEXANDER: You reference two

16 documents, the meeting minutes of May 16, 2002 and

17 the agreement letter. Are those marked as

18 exhibits yet? I don't believe they are.

CHAIRMAN TIPSORD: The meeting

20 minutes are Exhibit 36. They are the minutes from

21 lower Des Plaines and CAWS that the Agency

22 provided during their testimony. And I believe

23 those are meeting minutes from all of the

24 meetings.

MS. ALEXANDER: Okay.

THE WITNESS: Yes, I have the

3 agreement letter here. This is December 8, 2002

4 from Mr. Lanyard to Mr. Rab, and this statement of

5 understanding was between IEPA and the District on

6 use of intermittent analysis of Chicago area

7 waterways.

MR. ANDES: I think that the point

9 there is simply that that was the agreement under

10 which the District performed various studies. It

11 doesn't refer to specifically the study.

12 Everything was done consistent with that letter.

THE WITNESS: Yes.

MS. ALEXANDER: Okay. So in other

15 words, nothing from this study reached any

16 results, any conclusions regarding fecal coliform

17 levels closer to the Stickney plant; is that

18 correct?

THE WITNESS: This study was

20 basically comparing FC levels at the two sampling

21 locations.

MR. ANDES: Fecal coliform.

THE WITNESS: Fecal coliforms only.

MR. ANDES: The other two locations

1 were?

THE WITNESS: One was the Des

3 Plaines River which is above -- before the

4 Lockport, and another one is the Chicago Sanitary

5 and Ship Canal. It's not the same location, but

6 it's the location where we collect our ambient

7 water quality samples.

MS. ALEXANDER: Now, regarding

9 District -- this is pre-filed question two --

10 regarding District Report No. 2007-79, which was

11 commenced in 2004, in which you found that

12 measurable rainfall in the period March through

13 November on various years occurred between 33 and

14 46 percent of the calendar days approximately. My

15 question is, I'm altering the pre-filed question

16 just a bit based on previous testimony, but what

17 did you count as a measurable rainfall day? Was

18 that only the days that it actually rained or was

19 that the days that it rained plus days in which

20 water quality may have been influenced by that

21 rain?

THE WITNESS: The table that is

23 described in that report is based on, we have

24 rainfall gauge -- you know, the measurable

1 rainfall that was monitored by grading stations by

2 the District. And so if there was any measurable

3 rainfall for the year, the entire year recorded in

4 that report and that report also includes the rain

5 all within the recreational season, that's May to

6 October too. So it includes any measurable amount

7 of rainfall that was recorded by the rain gauge

8 station by the district, yes.

MS. ALEXANDER: Now, in the context

10 to this particular study, did you make any effort

11 to quantify the concept that's been referred to in

12 these proceedings as wet weather days? In other

13 words, this idea of days on which rainfall

14 actually occurs, plus days on which the levels of

15 discharge indicator bacteria are influenced by

16 those days?

THE WITNESS: Well, as you know the

18 other expert witness testified earlier, you know,

19 the wet weather influence is just not the day when

20 it rains. It doesn't end the same day. Then the

21 next day if it is dry, there is no measurable

22 rainfall recorded actually by the rain gauge

23 station, but the influence of the rainfall event

24 lasts longer.

MS. ALEXANDER: And my question is,

2 did you make any effort in the context of this

3 study to quantify the number of days in which that

4 lingering influence was there? In other words,

5 total days of rainfall plus influence?

THE WITNESS: We in the report that

7 we are referring to, 2007-79, we had fecal

8 coliform data from 2004 to 2006. We collected the

9 data, and whenever there was a heavy rain, the

10 criteria was that when the heavy rain or any storm

11 occurred, that it exceeded the capacity of the

12 TARP and there was an active discharge from the

13 pumping station of the District, then we will

14 follow the monitoring of fecal chloroform density

15 for three days. So we do have to that extent

16 fecal coliform distribution data.

MS. ALEXANDER: And I guess my

18 question is a little more specific than that.

19 Given that, I understand the raw data that you say

20 you followed for three days after rainfall

21 prompting one of these events, did you ever

22 attempt for any given years than to total up the

23 number of days in which either rain fell or there

24 was this lingering influence such as you can say

1 on, you know, 65 days were wet weather days under

2 that definition or 45 percent of the days, that

3 kind of thing?

THE WITNESS: Well, we have the

5 rainfall -- influence of the rainfalls. We did

6 evaluate that. And approximately the rainfall

7 days that occurs each year is about 145 days. So

8 the wet weather effect comes to 145 days each

9 year. This is approximate again. This is based

10 on the rainfall measured by the rain gauge

11 station. Now, if you factor in the influence of

12 rainfall events, which lasts longer than the rain

13 day, the first rain day, then you will have two

14 more days following the rain event. So if you

15 factor that in, say even one day post the rain

16 event, 145 plus 145, it's about 290 days. It's

17 more than 60 to 70 percent of -- you will see the

18 effect of the rainfall event.

MS. ALEXANDER: But of course you

20 wouldn't do that because not all of the rain --

21 because some of the rainy days occurred

22 consecutively, right? In other words, if it rains

23 for seven days straight, then you have seven days

24 of rain, plus three days under your scenario where

100

1 you have the lingering effect, right? You don't

2 have seven plus, you know, three, three additional

3 days for each of those seven days, correct?

THE WITNESS: You know, the

5 evaluation to the extent that we compared our

6 results with the risk assessment, what they found

7 in 2006, the true dry weather was approximately

8 85 percent time of the year. So when we looked

9 into that, it comes out pretty close to what we

10 are extrapolating based on we didn't actually look

11 at the the consecutive days that it rained, and

12 then the dry weather period. But it comes out to

13 be more than 50 to 60 percent that we will see the

14 effect of rain events.

MS. ALEXANDER: Now, in choosing

16 when to look at this lingering event, am I correct

17 in understanding that you didn't look at the

18 lingering effect after every single rainfall

19 event, but only after those that caused a

20 discharge of some sort?

THE WITNESS: No, that's not

22 correct.

MS. ALEXANDER: So did you -- help

24 me understand, did you actually measure the

101

1 lingering effect after every rainfall event

2 regardless of whether there was a discharge or did

3 you simply did you make an assumption regarding

4 whether there would be a lingering effect?

THE WITNESS: It's not an

6 assumption. We said that whenever there is a

7 heavy rain that will exceed the capacity of the

8 District TARP and there will an active discharge

9 from the pumping station, we will be sampling

10 three days consecutively after that rain event.

MS. ALEXANDER: What about a light

12 rain that would not prompt a discharge?

THE WITNESS: We do have data for

14 those events too.

MS. ALEXANDER: But as I understood

16 from your report, there were some rain events

17 which in fact did not result in a discharge?

THE WITNESS: Yes.

MS. ALEXANDER: What was the basis

20 for the decision to sample for three days

21 following an event?

THE WITNESS: The decision is, I was

23 going to refer to our sampling design, because you

24 know we are the lab people. We also have to work

102

1 it out with our sampling personnel who go out and

2 do the sampling. And if you owe -- I'm referring

3 this to Report No. 2007-79.

CHAIRMAN TIPSORD: Which attachment

5 is that to your testimony, please?

THE WITNESS: I believe it's

7 attachment 5. Yes, I'm going to this page because

8 I don't remember the days when they collected the

9 samples. So it was the north area station. It

10 was, the sample was collected on the first Tuesday

11 and second Mondays of each month.

CHAIRMAN TIPSORD: Excuse me,

13 Dr. Rijal, what page are you reading from?

THE WITNESS: Page 3.

CHAIRMAN TIPSORD: Go ahead.

THE WITNESS: So at the north area

17 stations on the first Tuesday and the second

18 Monday of each month the sample was collected for

19 fecal coliform, and at the south area station the

20 third Tuesday and the fourth Monday of each month.

21 And the samples were not collected during weekends

22 and holidays because of the overtime incurred. So

23 if you look at the data, we do have following the

24 rain event, the three days, but if it falls on the

103

1 weekend, we don't have the fecal chloroform data

2 for that day.

MS. ALEXANDER: So you sampled

4 regularly on the dates that you cited, and then in

5 addition to that, except on weekends, for three

6 days after an event?

THE WITNESS: Yes.

MS. ALEXANDER: My question is, what

9 is the basis for choosing three days? Why not

10 four? Why not two?

THE WITNESS: Well, it was basically

12 because to avoid overtime. If you have to give

13 overtime to the staff, this was an expensive

14 two-year project. But we did cover that also for

15 certain heavy rain events. We did have samples

16 for that. But there are studies that show the

17 die-off effect which lasts -- there was one

18 study -- I don't recall bacteria by USGS, and they

19 found that there is a lingering effect for almost

20 72 hours after the rain event. So we factored

21 that in, and we decided to select three days.

22 Like the day one is the rain event, and then the

23 first day and the second day we did the sampling.

MS. ALEXANDER: And you sampled for

104

1 these three days following a heavy rain event,

2 correct?

THE WITNESS: Yes.

MS. ALEXANDER: But not other rain

5 events?

THE WITNESS: When we analyzed all

7 the data, we found that there was a light rain

8 event period that was which, the light rain here

9 which fell into .1-inches of rainfall to less than

10 .5 inches of rainfall, and we have the data for

11 some of those events which followed for two days

12 post a light rain event.

MS. ALEXANDER: But you didn't

14 deliberately go out and sample for three days

15 anything other than heavy rain, correct?

THE WITNESS: Yes.

MS. ALEXANDER: Okay. Does your

18 data contain any comparison in the context of this

19 sampling after a heavy rainfall event of the

20 levels before and after the first flush of

21 indicator bacteria?

THE WITNESS: I would like you to

23 explain. I know what is first flush, but I want

24 you to explain what you mean by first flush in

105

1 context to this large watershed in the Chicago

2 area.

MS. ALEXANDER: Well, then, I mean,

4 I think it would be better if you gave me how you

5 understand the first flush, and I'll tell you if

6 it's consistent.

THE WITNESS: Well, as Susan pointed

8 out earlier, the intensity, the first flush

9 depends on the intensity of the rainfall, the

10 duration of the rainfall, and the maximum volume

11 of, you know, rainfall needed to produce a first

12 flush will rarely -- and it was not asserted in

13 this report because we did not see -- look at the

14 levels of fecal chloroforms with the inclement of

15 rainfall events, which if he had done that, we

16 will get inclement rainfall event changes in the

17 rainfall levels which we did not do it. I would

18 also like to point out that it's going to be

19 difficult to determine the first flush because it

20 will depend upon again the intervals between the

21 storm event, the dry period, and the duration of

22 rainfall and also the characteristics of the

23 drainage basin area too.

MS. ALEXANDER: I'm afraid I missed

106

1 a word in there. Did you say incremental rain

2 event? I didn't quite catch that.

THE WITNESS: Yes.

MS. ALEXANDER: What do you mean by

5 incremental rain event?

THE WITNESS: An incremental rain

7 event is like -- it started out in Des Plaines and

8 then you follow the rain event and measure as the

9 day progresses, you get increased rainfall and how

10 much of the rain sets, what is the duration and

11 intensity that will vary.

MS. ALEXANDER: Okay. So am I

13 correct in understanding that it's not always

14 clear when, you know, what constitutes the first

15 flush or when it occurs?

THE WITNESS: The first flush, it's

17 my understanding -- I'm not an engineer, but it

18 does get captured in the District jurisdiction and

19 gets treated.

MS. ALEXANDER: Now, turning to

21 pre-filed question four. This is regarding the

22 conclusion in the 2004 study that levels of fecal

23 chloroform indicator bacteria in the CAWS upstream

24 of the waste water treatment plants frequently

107

1 exceed the proposed IEPA discharge standard of 400

2 colony forming units per 400 millimeters. What is

3 the significance of that comparison in your

4 understanding?

THE WITNESS: The significance of

6 this comparison here is to indicate that the

7 effluent limits of 400 fecal chloroforms is not

8 justified when a higher number is introduced into

9 the CAWS from upstream and other contributory

10 loads. So the measure that is mentioned here, the

11 400, is not reflective of water quality

12 microbiological water quality in the CAWS.

MS. ALEXANDER: Do you have an

14 understanding of what level of fecal chloroform

15 indicator bacteria are generally found in the

16 effluent from the District's waste water treatment

17 plants at issue here being North Side, Calumet and

18 Stickney?

THE WITNESS: Yes, I do. And I give

20 you exact, it would not be accurate. So I'm going

21 to give you an approximate range. That it would

22 be 10,000 to 200,000 colony forming units per 100

23 million, but on average it's between 10,000 to

24 40,000 or 50,000 CFUs per 100 million.

108

MS. ALEXANDER: So in other words,

2 the numbers coming out of the effluent are

3 essentially higher than 400 and in many cases

4 higher than what's found upstream, is that

5 correct? Not in every case, but in many cases.

THE WITNESS: What do you mean by

7 many cases?

MS. ALEXANDER: The levels in the

9 down -- in the effluent are at least during dry

10 weather -- are generally higher than the levels in

11 the upstream area, not influenced by backwash?

THE WITNESS: I will not answer that

13 question because, again, the question of dry

14 weather, what you consider dry weather, we do have

15 -- we do see effects of rainfall which lingers

16 following dry weather. So there are times we see

17 high levels of fecal chloroform which are higher

18 than 400 CFU per hundred million in the upstream

19 location, and also in the contributory loads,

20 which is discharged into the CAWS.

MS. ALEXANDER: Allow me to define

22 my terms then. By dry weather, I am referencing a

23 period of time in which no rain is occurring and

24 there is no lingering influence as it's generally

109

1 been defined by Geosyntec in your study period of

2 three days. Dry weather being that, would it be

3 fair to say that generally the plant effluent has

4 higher levels of fecal chloroform bacteria than

5 are in the upstream portion?

THE WITNESS: Yes.

MS. ALEXANDER: So would it also be

8 fair to say that if you impose the 400 colony

9 forming unit limits, you are going to reduce the

10 amount of these indicator bacteria at least that

11 are going into the downstream portion of the

12 river?

THE WITNESS: My answer is, no,

14 because, again, the upstream location, it

15 fluctuates the FC loading that's coming in. It's

16 higher than the 400 FC limits that is proposed for

17 the effluent limit. So it is -- the levels are

18 higher also in the upstream locations.

MS. ALEXANDER: Isn't it a fact that

20 if the plant effluent is 10,000 and you impose a

21 limit on that and you lower it to 400, that you

22 are going to be putting fewer fecal chloroforms

23 indicators overall into the river?

THE WITNESS: Just for fecal

110

1 indicators?

MS. ALEXANDER: Yes, we are just

3 talking about indicators right now because that's

4 the subject of your study.

THE WITNESS: Yes, that's the

6 subject of my study.

MR. ANDES: If I can follow-up on

8 that. Dr. Rijal, and we can talk about some

9 figures in your report, but can you talk to me

10 about the comparison of the upstream levels and

11 not the effluent, but the downstream levels,

12 downstream of the discharges from the District and

13 how those compare in terms of how -- are the

14 levels upstream and the levels downstream

15 sometimes in the same --

THE WITNESS: They are sometimes in

17 the same -- you asked generally there are -- there

18 are times when they are the same.

MS. ALEXANDER: Are they more likely

20 to be the same during wet weather or dry weather,

21 and dry weather as defined moments ago.

THE WITNESS: Well, both during the

23 light rain events and during sometimes during the

24 wet events, it's usually the same.

111

MS. ALEXANDER: But when you say

2 it's the case that during dry weather, the levels

3 below the plant outfalls of fecal chloroform

4 indicators are likely to be higher than the levels

5 upstream?

THE WITNESS: Yes.

MR. ETTINGER: May I just interrupt

8 here. We've been discussing upstream and

9 downstream a lot. Have you studied the flow from

10 the North Side plant?

THE WITNESS: No.

MR. ANDES: Studied the flow in what

13 way?

MR. ETTINGER: Have you or do you

15 know whether water from the North Side plant

16 sometimes flows north as well as south from the

17 plant?

THE WITNESS: You mean backflow, is

19 that what you are saying?

MR. ETTINGER: Well, back is an

21 implication too. We know the plant discharges to

22 a channel which flows north-south, correct? And

23 and from north to south.

THE WITNESS: North to south.

112

MR. ETTINGER: The north shore

2 channel flows north-south?

THE WITNESS: Yes.

MR. ETTINGER: I'm asking have you

5 studied or do you know of a study that says

6 whether wet water from the North Side treatment

7 plant sometimes goes north from that plant as well

8 as south?

THE WITNESS: I don't know.

MR. ETTINGER: And do you know

11 whether water from that plant gets up to Oakton

12 Avenue?

THE WITNESS: It is my understanding

14 that there is a lake diversion and the water from

15 Lake Michigan is diverted and flows inland from

16 through the north shore channels to the Chicago

17 river and it flows down inland. So the chances of

18 flowing to the north direction is highly unlikely.

MR. ETTINGER: Do you know how often

20 that lake diversion is open?

MR. ANDES: Lately? A lot.

MR. ETTINGER: Well, not counting

23 the last two weeks.

THE WITNESS: There is a

113

1 discretionary diversion which flows --

MR. ETTINGER: I'm sorry, my

3 question was do you know how often the diversion

4 into the north shore channel is open?

THE WITNESS: I don't know.

MR. ETTINGER: Thank you. I'm done.

MS. ALEXANDER: I'd like to turn to

8 Figure 18 in the study we're discussing which is

9 on page 28. And we are back to, I think it was

10 your study was attachment 5 to Exhibit 113.

CHAIRMAN TIPSORD: Wait a minute.

12 The 2007 study? Is that the one we are talking

13 about still?

MS. ALEXANDER: Yes.

MR. ANDES: We actually have copies

16 of that chart if that would be helpful.

CHAIRMAN TIPSORD: So the 2007 study

18 is attachment 5.

MS. ALEXANDER: This is attachment 5

20 and this is Figure 18.

MR. ANDES: If I can mention, we do

22 have a few notations on this particular copy just

23 to make it clear where the locations were,

24 otherwise it's the figure from the report.

114

CHAIRMAN TIPSORD: Since there are

2 notations on it, I'm going to go ahead and mark it

3 as an exhibit. We'll mark this as Exhibit 114 if

4 there is no objection. Seeing none, this is

5 Exhibit 114.

MS. ALEXANDER: Now, looking in

7 particular at the top figure, this is subquestion

8 A, would it be fair to say that these show that

9 during wet weather, the level in fecal chloroform

10 in the CAWS increases somewhat downstream of the

11 waste water treatment plant outfalls?

THE WITNESS: Can I explain further?

13 That's not correct, and I'm going to provide

14 explanation to that.

MS. ALEXANDER: Okay.

THE WITNESS: Now, if you look at

17 this Figure 18, the top one, it gives you the

18 fecal coliform geometric mean concentration during

19 heavy rain day 1, day 2, day 3. And if you look

20 at the upstream location and the downstream fecal

21 coliform levels were higher both the day 1 and day

22 2. Both in the upstream and the downstream

23 location which I'm talking about, which is Foster,

24 which is 3.1 miles downstream, and also the

115

1 contributory, the Albany Avenue. If you look at

2 the numbers here, it's about 25,000 fecal coliform

3 -- colony forming units per hundred million. This

4 level, high level of FC is measured both under day

5 1 and day 2. And we see that the downstream

6 location at Wilson. There is an increase in the

7 FC level. And this increased level you see

8 downstream of the outfall only immediately after

9 the contributory input here. And that level

10 remains high until 6.6 miles downstream of the

11 locations.

MS. ALEXANDER: Perhaps I'm

13 misunderstanding you. You characterized my

14 question as incorrect, but it sounds like you

15 answered it yes, which is in fact the upstream

16 level, which is about 25 on the heavy rain day, is

17 lower than the levels downstream, and in

18 particular pointed out downstream of the

19 tributary, but that shoots up to 35,000 and

20 higher; is that correct, that's what's going on on

21 wet weather days? I'm sorry, I'll define that on

22 heavy rain days.

THE WITNESS: No, I'm trying to

24 provide a clarification to your statement there

116

1 that when we are comparing downstream locations,

2 the downstream of the outfall immediately

3 downstream, by Foster Avenue, the fecal coliform

4 levels are compared similar to the upstream

5 location here.

MS. ALEXANDER: All right. So then

7 to clarify my question, it appears what's going on

8 heavy rain day 1 is that the levels are about the

9 same until you get past the tributary, in which

10 case they go up?

THE WITNESS: Yes.

MS. ALEXANDER: Now let's look at

13 the dry days. Isn't it a fact that on the dry

14 days you start out with very low levels upstream.

15 You get a spike immediately downstream, and then

16 those levels steadily drop; is that correct?

THE WITNESS: It drops until it

18 passes the tributary, and then you see it

19 increases back.

MR. ETTINGER: I'm sorry. We are

21 having trouble seeing part of this. On your dry

22 days, this tributary, it's actually above -- it's

23 above the effluents with the north shore channel,

24 right?

117

THE WITNESS: Yeah, but that feeds,

2 this location here is upstream of the Lohan dam on

3 the north branch of the Chicago River.

MR. ETTINGER: And Wilson is below

5 that, right?

THE WITNESS: Wilson is below that.

MR. ETTINGER: So just looking at,

8 what we don't see as we see a dry day level at

9 Foster, which is it looks like around 9000 just

10 eyeballing it, and a level at Wilson which is

11 about 7000 just eyeballing it, but we can't really

12 tell what happens with the tributary there because

13 we don't have a chart right at that spot.

THE WITNESS: But we do have fecal

15 coliform levels there, and it is about 400 CFU's

16 per hundred million, right?

MR. ETTINGER: Right, on the dry

18 days, on the tributary according to that.

THE WITNESS: Right.

MR. ETTINGER: On the charts you are

21 presenting, we can't see a rise in the north

22 branch from that tributary, but you believe it

23 exists based on your measurements of the north

24 branch above the effluence?

118

THE WITNESS: And there is no, if

2 you look at it, there is no steady pattern of

3 decline here based on the distances here we

4 compared for the dry weather.

MR. ETTINGER: Well, there is a

6 steady decline if you look at one body of water

7 coming down from the sewage treatment plant, if

8 you look at Foster, Wilson, I can't read the next

9 one, Grand.

THE WITNESS: There is a decline.

11 There's not a steady decline is what my point is.

MR. ETTINGER: What is the one

13 that's 6.6? I can't read the writing in there.

THE WITNESS: That's Diversey.

MR. ETTINGER: If you look at

16 Foster, Wilson, Diversey and Grand, which is the

17 water that's all in one direction, you do see a

18 steady pattern of decline on this chart, don't

19 you?

MR. ANDES: You are talking

21 specifically during dry days?

MR. ETTINGER: That's right. I'm

23 just asking about dry days. I'm just saying there

24 you do see a steady pattern in the lower --

119

THE WITNESS: Well, based on those

2 distances we have, I think when we compare like at

3 the downstream location it was about 9010, then we

4 compared that to the level of 6000. I don't know

5 if that is significantly lower, but if you

6 compared the location from the 3.1 to the

7 10.7 miles downstream of the plant, then you see

8 there is a drop there. But the level is, you

9 know, there is a decline, but not a steady

10 decline.

MS. ALEXANDER: I'm sorry, help me

12 understand.

MR. ETTINGER: I'm sorry, I'm just --

14 We are trying to understand the chart here the way

15 we understand the way the water flows. Just

16 looking at your stations downstream from the North

17 Side plant, on dry days, the highest number is

18 Foster. The next highest number is Wilson. The

19 number after that is Diversey, and the number

20 after that is Grand, and each one drops in

21 comparison to the one above it?

THE WITNESS: Yes, it does.

MS. WILLIAMS: Just to follow-up,

24 the upstream number is the lowest of all, of all

120

1 the four that he named, upstream that number is

2 lower?

MR. ANDES: During dry days?

MS. WILLIAMS: Yes, during dry days.

THE WITNESS: Yes.

MR. ANDES: Not talking about the

7 other days?

MS. WILLIAMS: Correct.

THE WITNESS: Yes.

MS. ALEXANDER: Just to clarify,

11 where you indicate tributary here, this 3.3, are

12 you sampling in the river itself or are you

13 sampling in the tributary?

THE WITNESS: We are sampling on the

15 north branch of the Chicago river which is a

16 tributary to the CAWS.

MS. ALEXANDER: Okay. So you are

18 sampling on the north branch.

MR. ETTINGER: Can I just ask, do

20 you know what the sources of the fecal coliforms

21 are at the north branch?

THE WITNESS: There are diverse

23 sources.

MR. ETTINGER: Well, do you know

121

1 what they are?

THE WITNESS: Could be treated waste

3 water from effluents upstream, upstream could be

4 starting from, you know, the middle fork that

5 meets down at that location. There are other

6 environmental nonpoint sources. The sand, soil

7 run-off, wild animals, foul, and so they all

8 contribute to the levels.

MS. WILLIAMS: What about CSOs?

THE WITNESS: There could be CSOs.

MS. WILLIAMS: Do you know if

12 there's CSOs?

THE WITNESS: We have reported based

14 on the District reporting CSOs data only, yes.

MS. WILLIAMS: I'm sorry, I don't

16 understand.

MR. ANDES: And we are talking

18 about, this is the north branch?

MS. WILLIAMS: Outside the CAWS, are

20 there CSOs?

THE WITNESS: We know there are

22 CSOs.

MS. WILLIAMS: Thank you. That's

24 all I was asking.

122

While we are waiting, let me

2 just ask in follow-up. You mentioned that there

3 was a USGS study, and I'm not sure you could

4 recall the citation. Is that something you could

5 provide for the hearing, the USGS studies you

6 looked at for those days?

THE WITNESS: Yes, I could provide

8 that.

MR. ETTINGER: Could I ask one more

10 question about this chart while we are on it?

11 Just looking at Foster, just making sure I'm

12 reading this right, it indicates that dry weather

13 fecal coliform levels are higher than the heavy

14 rain day three levels; is that correct?

THE WITNESS: It is possible.

MR. ETTINGER: Well, that's what

17 your data shows.

THE WITNESS: Yes, that's what the

19 data is, yes.

MR. ETTINGER: Do you have any

21 understanding of why that might have happened?

THE WITNESS: Again, this level here

23 would be the level that you find in the -- see, if

24 you see at the driver, this would be the level

123

1 that you find in this location? FC levels.

MR. ETTINGER: So if I were paddling

3 around Foster, I'd be better off, if I was just

4 worried about fecal, three days after heavy rain

5 than I would be on a dry day?

MR. ANDES: The data say what the

7 data say.

THE WITNESS: I will not comment on

9 that.

MS. WILLIAMS: But could you comment

11 on whether it might indicate that the actual

12 impact on a wet weather day is less than three

13 days or less than the two days following the

14 rainfall that you measured.

THE WITNESS: To make a statement

16 here, you know the microbiology itself of the

17 water is more complex. It would change. So based

18 on the data here, the levels of fecal coliforms

19 levels are lower. The dry weather period as

20 compared in this study is lower than compared to

21 the rainfall period.

MR. ANDES: To follow-up. Is it

23 true that the levels in the first chart, the

24 levels of fecal coliform on heavy day 1 are orders

124

1 of magnitude above dry day numbers?

THE WITNESS: Yes.

MS. ALEXANDER: I think I'm finally

4 ready to clarify the tributary issue. Would I be

5 correct in understanding that the flow that

6 originates from the North Side plant into the

7 north shore channel doesn't flow into the

8 tributary where you sampled, correct?

THE WITNESS: No.

MS. ALEXANDER: So in other words,

11 the flow goes past the tributary, the tributary

12 goes flows in at that point. So what you are

13 really measuring is the flow that goes into the

14 flow that is coming from the north shore channel,

15 is that correct?

THE WITNESS: That is correct.

MS. ALEXANDER: If you exclude the

18 tributary, which is not in fact in that flow, you

19 would then have the pattern that I've described,

20 would you not, which is that there are low levels

21 of fecal coliform upstream, they spike to a little

22 below 10,000 immediately downstream and then

23 steadily drop, is that correct, excluding the

24 tributary which is not part of the flow?

125

THE WITNESS: But the rain event,

2 if you look at the rain levels, the Foster levels

3 -- the upstream levels, it's a continuous point

4 system. So even if you block the tributary, the

5 upstream, the levels of heavy rain period, you are

6 getting higher numbers than down stream.

MS. ALEXANDER: Excuse me. I'm

8 excluding heavy rain. I'm only talking about dry

9 days. Would you agree that excluding the

10 tributary, which is not part of the flow from the

11 discharge into the north shore channel from the

12 North Side plant, there is in fact a steady drop

13 after a spike immediately downstream of the plant?

MR. ANDES: So you are talking about

15 which -- you are talking about specifically the --

16 you are asking us to ignore the tributary and

17 ignore the heavy rain, day one, day two and day

18 three, and all only talk about dry days.

MS. ALEXANDER: Yes, I am talking

20 about the dry days and exclude the tributary which

21 is not part of the facility. Would you agree with

22 the statement?

MR. ANDES: But it's part of the

24 CAWS.

126

MS. WILLIAMS: What did you say, the

2 tributary?

THE WITNESS: It needs into it.

MS. WILLIAMS: Becomes part of the

5 CAWS.

THE WITNESS: Well, we have. We

7 didn't subtract that in our study here. The data

8 is what the data we have currently, and if you

9 even exclude, if you look at the FC levels during

10 the dry weather, it's like maybe in between two

11 times higher, the 400 levels, and the level here

12 when we compare at the location Foster Avenue

13 which is three miles downstream of the outfall to

14 the four miles, you know, when we compared these

15 two locations. There, it's not -- there's not a

16 steady design here.

MS. ALEXANDER: Well, hold on a

18 second. Let's look at the level of 3.3, which is

19 also an indication is Foster, would agree that on

20 the dry weather day, that level is higher than at

21 4.0, the bar goes higher on the chart, correct?

THE WITNESS: Yes, but how

23 significant higher is it.

MS. ALEXANDER: Well, that wasn't

127

1 the question. Would you agree it's higher?

THE WITNESS: No.

MS. ALEXANDER: Would you agree that

4 it's higher?

THE WITNESS: Higher to what level?

MS. ALEXANDER: At 3.1 to 4.0.

THE WITNESS: Compared to 4.00, it

8 going to be marginally higher.

MS. ALEXANDER: And would you also

10 agree that the level at the dry weather bar is

11 higher than the comparable bar at 6.6?

THE WITNESS: Yes, to the same my

13 answer previously it is the same here.

MR. ANDES: So if I can follow up

15 on that. So does that indicate during dry weather

16 days the levels of fecal coming from north side

17 are significantly attenuated as they go

18 downstream?

THE WITNESS: It looks like it. You

20 see a natural attenuation here.

MS. ALEXANDER: And would you agree

22 that there is roughly the same natural attenuation

23 for heavy rain day 3, again, including the

24 tributary, which is not part of the flow?

128

THE WITNESS: I didn't understand

2 your question.

MR. ANDES: And not day 1 or day 2,

4 only day 3?

MS. ALEXANDER: Only day 3 would you

6 agree that you see essentially the same pattern

7 for dry weather? In other words, relatively low

8 levels upstream, a spike immediately downstream,

9 followed by attenuation, excluding the tributary,

10 which is not part of the flow?

THE WITNESS: There is a decline,

12 but how significant it is, it's hard to say from

13 this figure here.

MS. ALEXANDER: Okay.

MR. ANDES: If I can follow-up on

16 that. Is it true that on heavy day 1 and heavy

17 day 2, there is no indication of steady decline?

18 In fact the levels go up significantly as you go

19 down the CAWS?

THE WITNESS: Yes, that's correct.

MR. ETTINGER: Can I ask a question.

22 Part of the problem here is we've got miles that

23 we're talking about and days. Have you ever

24 measured how many days it takes the water to go

129

1 down into miles?

THE WITNESS: How many days?

MR. ETTINGER: Yes, what's the flow

4 rate on a dry or a wet weather day; do you know?

5 Is there a drop in fecal in the water at the North

6 Side plant? How many days or hours does it take

7 to get to Grand?

THE WITNESS: The flow is -- it's

9 not a high flow. That's my understanding. But

10 it's flowing probably during May to October -- I

11 don't know. I'm not going to speculate any

12 numbers.

MR. ETTINGER: I'm not asking you to

14 speculate. I'm asking if you know what the flow

15 rate is so we can somehow chart this, and have a

16 better understanding of how long it takes water

17 discharged at a point to get to another point?

MR. ANDES: She doesn't know. That

19 information may be available for to us provide.

THE WITNESS: We can provide that

21 information.

MR. ETTINGER: Okay, thank you.

MS. ALEXANDER: Just a couple

24 follow-up questions from me. Did the 2007-79

130

1 study, attachment 5, draw any conclusions

2 regarding water quality improvement resulting from

3 disinfection during dry weather?

MR. ANDES: I'm sorry, which study?

MS. ALEXANDER: The study we've been

6 discussing of which Figure 18 is a part.

MR. ANDES: 2007.

MS. ALEXANDER: Yes, this is 2007.

MR. ANDES: Attachment 5.

THE WITNESS: We did not make any

11 conclusion for the dry weather, but we did report

12 that there is influence of the rain event which

13 lingers beyond the rain event and which extends to

14 the driver of the NVC, the elevated level of fecal

15 coliforms even during the dry weather period.

MS. ALEXANDER: And do you have an

17 understanding whether CSO events in the CAWS will

18 be reduced after TARP is completed?

THE WITNESS: I don't know.

MS. ALEXANDER: All right. That

21 concludes my questions.

MS. WILLIAMS: You don't know if

23 they'll go down?

THE WITNESS: What? The CSO

131

1 events?

MS. WILLIAMS: CSO events.

THE WITNESS: When the TARP will be

4 completed?

MS. WILLIAMS: Yes.

THE WITNESS: I don't know if it

7 will completely reduce the number of CSOs, I don't

8 know.

MS. WILLIAMS: But you know they

10 will go down?

THE WITNESS: They will go down,

12 yes.

CHAIRMAN TIPSORD: Ms. Alexander, if

14 you are done, we'll go ahead and take an hour for

15 lunch and we'll come back and start with the IEPA's

16 questions for Dr. Rijal.

(Whereupon a lunch recess was taken.)

132

1 STATE OF ILLINOIS )

) SS.

3 COUNTY OF C O O K )

I, DENISE ANDRAS, being a Certified

6 Shorthand Reporter doing business in the City of

7 Des Plaines, Illinois, County of Cook, certify

8 that I reported in shorthand the proceedings had

9 at the foregoing hearing of the above-entitled

10 cause. And I certify that the foregoing is a true

11 and correct transcript of all my shorthand notes

12 so taken as aforesaid and contains all the

13 proceedings had at the said meeting of the

14 above-entitled cause.

__________________________

DENISE ANDRAS, CSR

CSR NO. 084-0003437