ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF:

)

3 WATER QUALITY STANDARDS AND ) R08-09

EFFLUENT LIMITATIONS FOR THE ) (Rulemaking-

4 CHICAGO AREA WATERWAY SYSTEM ) Water)

AND THE LOWER DES PLAINES )

5 RIVER: PROPOSED AMENDMENTS )

TO 35 Ill. Adm. Code Parts )

6 301, 302, 303 and 304

)

REPORT OF PROCEEDINGS held in the

8 above-entitled cause before Hearing Officer Marie

9 Tipsord, called by the Illinois Pollution Control

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

11 public within and for the County of Cook and State

12 of Illinois, at the Thompson Building, 100 West

13 Randolph, Chicago, Illinois, on the 24th day of

14 September, 2008, commencing at the hour of 1:00 p.m.

A P P E A R A N C E S

MS. MARIE TIPSORD, Hearing Officer

MR. TANNER GIRARD, Acting Chairman

MS. ANDREA MOORE, Member

MR. THOMAS JOHNSON, Member

MR. ANAND RAO

MR. NICHOLS MELAS

Appearing on behalf of the Illinois

Pollution Control Board

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

BY: MS. DEBORAH WILLIAMS

MS. STEPHANIE DIERS

MR. ROBERT SULSKI

MR. SCOTT TWAIT

MR. HOWARD ESSIG

MR. ROY SMOGOR

BARNES & THORNBURG

One North Wacker Drive

Suite 4400

Chicago, Illinois 6606-2833

(312)357-1313

BY: MR. FREDRIC P. ANDES

Appearing on behalf of the Metropolitan

Water Reclamation District

HEARING OFFICER TIPSORD: Let's go

ahead and go back on the record. Good

afternoon, everyone. I hope you had a nice

lunch break, and we're ready to pick up with

Dr. Rijal and the IEPA's questions.

MS. WILLIAMS: Good afternoon,

Dr. Rijal. I'll just start with No. 1. I

believe that Attachment 3 to your testimony

is the same as what has been entered as

Exhibit 38 in the record. Can you clarify

that for us today?

DR. RIJAL: Yes.

MS. WILLIAMS: Great. Question 2,

your testimony indicates that the district

performed various fecal coliform distribution

studies to assist the Illinois EPA in

determining what the appropriate bacteria

water quality standard should be for the

study area. Do you believe fecal coliform is

an appropriate indicator on which to base a

water quality standard.

DR. RIJAL: I do not believe that fecal

coliform is an indicator of health risk.

MS. WILLIAMS: Could you repeat that.

You do not believe it's an indicator of what?

DR. RIJAL: I do not believe fecal

coliform is an appropriate indicator on which

to base the water quality standard.

MS. WILLIAMS: Do you have an indicator

that you would recommend on which to base a

water quality standard.

DR. RIJAL: I don't have any

recommendation at this time.

MS. WILLIAMS: And that would be true

for whatever type of recreational activity

we're referring to.

DR. RIJAL: Yeah. I don't -- I don't

know. This is reference to Question No. 3,

isn't it? Yeah.

MS. WILLIAMS: Three expands on

Question 2. And if your answer is that you

don't have one, probably that covers three,

yes.

Question 4 at the top of Page 3 of

your prefiled testimony you conclude that the

District's effluent was, quote, was not

adversely impacting the microbial quality of

the Des Plaines River downstream of the

junction. Can you explain by what you mean

by not adversely impacting?

DR. RIJAL: That first impact here is

in reference to the fecal coliform bacterial

lowering.

MS. WILLIAMS: And can you explain what

the impact is of the fecal coliform load.

DR. RIJAL: We compared, as we

discussed earlier, we compared the fecal

coliform levels at two sampling locations:

One being the Des Plaines River site and

other being the Chicago Sanitary Ship Canal,

and we compared the fecal coliform lower. So

this impact was in reference to the levels of

fecal coliform load impacting the waterway

downstream of the --

MS. WILLIAMS: But by impact you mean

it didn't raise the levels at all.

DR. RIJAL: No.

MS. WILLIAMS: And what specific data

do you base that on.

DR. RIJAL: When we compared the levels

of fecal coliform that we found, the

individual data as well as the geometric mean

data, and we found the levels were similar at

both the locations. But when we did the

statistical analysis, we find higher levels

when we compared to the general use standard

of geometric mean of less than or equal to

200 fecal coliform, less than or equal to 200

fecal coliform in a 30-day period geometric

mean standard. When we compared that we

found that the levels was higher at the Des

Plaines River site compared to the Chicago

Sanitary and Ship Canal site.

MS. WILLIAMS: When you say the levels

were higher, you mean what.

DR. RIJAL: When we compared with the

general use fecal coliform levels.

MS. WILLIAMS: Do you mean average

levels? Do you mean --

DR. RIJAL: Geometric mean. And we

also looked at the -- it is explained in the

report that 10 percent of the samples should

not exceed 400 fecal coliform unit too. We

looked at that criteria, too, and we found

the number of samples at the Des Plaines

River would exceed that advisory limit

compared to the Chicago Sanitary and Ship

Canal.

MS. WILLIAMS: I mean I think you're

explaining what I'm trying to get at where

you're talking about numbers of -- comparing

numbers of violations or comparing actual

loading numbers or --

DR. RIJAL: Loading number and compared

to the general use standard levels. So

that's why this is in reference, the adverse

impact here in reference to the fecal

coliform load.

MS. WILLIAMS: Do you -- Isn't it

correct that the maximum fecal coliform

values were higher in the Sanitary and Ship

Canal than the values you found in the

general use waters.

DR. RIJAL: I'm going to go over to the

report which is Attachment --

MS. WILLIAMS: Three.

DR. RIJAL: Three of my testimony. And

I just don't want to give you a wrong number,

but the geometric mean actually came out to

be lower at the Chicago Sanitary Ship Canal

than the Des Plaines River, and the ranges --

MS. WILLIAMS: My question was very

specific about the maximum.

DR. RIJAL: The ranges -- I'm going to

give you the ranges. I don't have it here.

So this is

Page 28 of the Attachment 3. In 2000 the

fecal coliform concentration ranged from

10,000 to 15,000 CFU per 100 mL at Des

Plaines River; at Sanitary and Ship Canal,

the fecal concentration ranged from 10 to

21,000 CFU per 100 mL. So I don't understand.

The maximum range is within the same range

that we see at the Des Plaines River compared

to the Chicago Sanitary and Ship Canal.

MS. WILLIAMS: What do you mean within

the same range.

DR. RIJAL: It's the 15,000 versus --

or 21,000.

MS. WILLIAMS: 21,000 is higher than

15, right? I mean I'm really not trying to

confuse you. It's a very simple question, I

think, right.

DR. RIJAL: Okay. But I'm just --

MS. WILLIAMS: The maximums were

higher.

DR. RIJAL: Maximum, yeah, was higher,

yeah.

MR. ANDES: That's with a particular

sample that was the maximum of the range was

higher than one set than the other.

MS. WILLIAMS: Right. And in 2001,

also, right? It was quite a bit higher.

DR. RIJAL: It was, yeah --

MS. WILLIAMS: 15,000 versus 10,000; is

that correct?

DR. RIJAL: 10,000, yeah.

MS. WILLIAMS: Would you consider that

within the same range.

DR. RIJAL: Well, if, you know, the

criteria is based on the geometric mean, too.

So we take that also into account. But the

maximum range here is we are talking about

10,000 versus 20,000 versus 15,000. So when

you compare these three numbers, yes, it's

higher.

MS. WILLIAMS: Okay. So when you say

it does not adversely impact the area

downstream, when we're saying we don't -- in

this question I asked about the Sanitary and

Ship Canal levels not adversely impacted,

you're not suggesting that there aren't times

when the concentration in the Sanitary and

Ship Canal is higher than the water coming in

from the Des Plaines River, are you.

DR. RIJAL: What do you mean by the

concentration --

MS. WILLIAMS: I mean it's not always

higher from the Des Plaines River, is it?

Are you trying to -- sometimes it's much

higher coming from the Sanitary and Ship

Canal, correct?

DR. RIJAL: I'll have to look at the

individual data here. And there are also

times where Des Plaines River are higher, you

know, coming -- the concentration of FC

levels are higher.

MS. WILLIAMS: So you think both are

true? Sometimes it's higher.

DR. RIJAL: Yeah.

MS. WILLIAMS: From Des Plaines River,

sometimes from Sanitary and Ship Canal.

DR. RIJAL: And which is justified by

the geometric mean which takes care of

this -- and you see actually the geometric

mean from that point we can see that the

tendency of higher fecal coliform

contribution to the lower Des Plaines is the

Des Plaines River then the Chicago Sanitary

and Ship Canal. And if you had reviewed this

report carefully, we tried to also predict

the FC levels at the lower Des Plaines. And

if you see the slope, you see that the

prediction is that higher level of FC will

contribute to the lower Des Plaines River

compared to the Chicago Sanitary Ship Canal.

So this was the finding from the support.

MS. WILLIAMS: And there's data from

downstream of the confluence in the report.

DR. RIJAL: No. We compared these to

location and --

MS. WILLIAMS: I just wanted to make

sure that I wasn't misunderstanding. Yeah.

What about CSOs in the -- I don't want to say

upper Des Plaines River, but the portions of

the Des Plaines River that you were looking

at upstream of the study area. Do you know

anything about the CSOs in that area.

DR. RIJAL: I know there are CSOs in

the Des Plaines River.

MS. WILLIAMS: Question 6, with regard

to your report 07-79, you state on Page 3 of

your testimony, quote, the purpose of this

study was to determine from the collected

data whether disinfection of effluence from

these WRPs, which stands for water

reclamation plants, would significantly

reduce the fecal coliform load in the

receiving streams during wet weather and how

the fecal coliform concentration in the

waterways compares to the effluent

disinfection standard proposed in this

rulemaking.

I think you tried to address this

issue earlier, but I don't think you directly

answered this question. Was there an

effluent disinfection standard being proposed

by the Illinois EPA at the time you began

this study?

DR. RIJAL: As I discussed earlier, I

know I didn't -- I might not have answered

it. The study was pursued to address issues

raised by the stakeholder committee which

includes the Agency and their consultant.

And this was on the Chicago area use

analysis. And this meeting, especially the

May 16, 2002 meeting, during that meeting the

Agency consultants suggested that to achieve

a water quality standard set the lower Des

Plaines disinfection standards could be

applied at that time.

MS. WILLIAMS: But that was a water

quality standard they were looking at, right?

There was no effluent disinfection standard.

DR. RIJAL: But they also discussed

that in order to desire to achieve that

standard you would have -- it was implied

that the disinfection would be required to

meet that water quality standard. And

specifically I do --

MS. WILLIAMS: As a water --

DR. RIJAL: Specifically I do have

memorandum of the June 16 dated 2003 meeting

minutes for the future of the Chicago Area

Waterway System public meeting. And if you

look at Page 13 here --

MR. ANDES: I assume this will be part

of Exhibit 36, right? Because it's among the

meeting minutes from the advisory group.

MS. WILLIAMS: Did you say Page 13?

DR. RIJAL: Page 13 of public

meetings, June 16, 2003. The first

paragraph --

MS. WILLIAMS: Wait. Public meeting

on the Chicago -- on the CAWS UAA now we're

talking about.

DR. RIJAL: Yeah.

MS. WILLIAMS: I thought earlier you

testified this was in relationship to meeting

standards downstream in the lower Des Plaines

River.

DR. RIJAL: Which -- yeah. There was

that -- I think you're getting confused.

MS. WILLIAMS: Yeah. I know I am.

DR. RIJAL: The earlier one was

agreement that was made between the district

and IEPA. That was December, I think, 2002

agreement. And the subsequent meeting there

was -- when they brought up this issue, there

was -- the disinfection was implied to

achieve the water quality standard at the

lower Des Plaines.

MS. WILLIAMS: Okay. But there wasn't

an effluent standard proposed.

MR. ANDES: Let me clarify. We're

talking about the 2007 report, right?

MS. WILLIAMS: Right. I'm trying to

understand how a 2007 report --

DR. RIJAL: So I'm getting confused.

MS. WILLIAMS: Would have taken --

DR. RIJAL: Let me explain. I think

I'm getting confused here. Because I -- the

first time in the morning I gave an

explanation to the 2003 report. And this

report here, which we are referring to as

Attachment 5, was conducted between 2004 and

2006. So I am answering in context to this

report.

MR. ANDES: And that one was as to the

CAWS, correct?

DR. RIJAL: That was to the CAWS,

yeah. And based on this June 16, 2003 public

meeting report, we can read -- I'll read it

from the first paragraph. That if

disinfection becomes recommendation of the

UAA --

HEARING OFFICER TIPSORD: Slow down.

DR. RIJAL: I'm sorry. If

disinfection becomes a recommendation of the

UAA, it will be the responsibility of the

discharges to fulfill the disinfection

requirement in conjunction with the IEPA

permit crosses, whichever acknowledgment they

choose. So this implies that either a

disinfection standard or a permit requirement

would be imposed.

MS. WILLIAMS: Okay. But -- And it

never talks about what that number would be

of a disinfection standard, does it.

DR. RIJAL: I was not part of that

meeting, so I don't recall that.

MS. WILLIAMS: Do you recall whether at

that time fecal coliform was being discussed

as a potential indicator that would be used.

DR. RIJAL: We came across several

versions of the CAWS UAA and we had fecal

coliform one time and then the E. Coli and

then to fecal coliform. So I'm not sure

which one you're talking about. But they're

very -- both fecal coliform and E. Coli were

discussed. Not both I mean --

MS. WILLIAMS: As potential water

quality standards.

DR. RIJAL: Yes.

MS. WILLIAMS: And we're not talking

about effluent standards. We're talking

about --

DR. RIJAL: The water quality.

MS. WILLIAMS: Ambient.

DR. RIJAL: Ambient.

MS. WILLIAMS: Did you consider

monitoring for

E. Coli when you did these studies.

DR. RIJAL: No. Because our permit

regulation is for fecal coliform bacteria.

So we just monitored fecal coliform.

MR. ANDES: If I can follow up. Did

IEPA ever suggest that you monitor for

E. Coli as well?

DR. RIJAL: No.

MR. ANDES: Thank you.

DR. RIJAL: This is the permit for

Egan, Curry (ph.), and Hanover Park and not

for the North Side or Stickney or Calumet.

MS. WILLIAMS: No. 7, at the top of

Page 4 of your testimony you describe a wet

versus dry weather study of fecal coliform in

the waterways. And, quote -- and define,

quote, light rain conditions in which no

pumping station discharge occurred and heavy

rain conditions in which pumping station

discharge did occur. Question A: Did you

review CSO monitoring records and take into

consideration whether other CSOs within

outside or upstream of the CAWS had occurred

during light rain or dry weather events.

DR. RIJAL: The information provided in

this report is based on the district reported

CSO events. So we have the data only from

the district-reported CSO events.

MS. WILLIAMS: Okay.

MR. ANDES: If I can follow up on

that. Were you trying in this report to

isolate particular sources other than the

planned effluence and determine what their

specific contributions were?

DR. RIJAL: No. We were trying to

look at the levels in -- the fecal coliform

levels in the waterway upstream and

downstream.

MS. WILLIAMS: But if you're defining

a period as dry weather, you'd agree it's

relevant whether the CSOs are impacting the

system from --

DR. RIJAL: Even if it was impacting,

we would -- you know, the data is based on

the fecal coliform levels. So what we see

would be the levels of fecal coliform that

we'd find during that period of time.

MS. WILLIAMS: Can you go back to what

you testified this morning? I don't think I

was following very well when you were

explaining to Miss Alexander, what percentage

of a year -- You were trying to describe the

percentages of the year that are dry weather

versus wet weather? Can you try to repeat

that?

DR. RIJAL: Based -- you know, can

I -- I'm going to go over with my testimony

and explain to you a little bit of how the

study was designed so that will help clear

some confusion here. Now, the fecal coliform

density were measured during dry and wet

weather and now the dry weather here was

defined as on any day in which there was no

measurable rainfall occurred and then the

day --

MR. ANDES: What page?

DR. RIJAL: This is Page 4 of my

testimony. That's the first paragraph. And

I won't take much of your time, but rain --

so there was no rainfall two days prior when

the samples was collected and also a day

after when the sample was collected. And the

light rain period was defined as measurable

rainfall that occurred on the same day or the

one or two days prior to the collecting of

the routine fecal coliform sample. And as I

mentioned earlier, heavy rain was, which

exceeded the capacity of the TARP and which

resulted into a discharge from the pumping

station. This was classified as a heavy rain

period. So -- and we have -- and the

rainfall was measured based on the rain gauge

data we have which is from the North Side

plant, North Side pumping station and the

Calumet location, also by the pumping

station. And we tabulated the rainfall

measured with the dry period. And we found

for each year that there are approximately,

average that comes out to be within of this,

2004 to 2006, approximately 145 days within

that year fall into the category of rainfall

as we described in -- rain event as we -- or

the wet weather samples as described in this

study. So it's 145 days. So does that

answer your question?

MS. WILLIAMS: So let's just -- I think

we're all a little confused. I'm not sure

that that's your fault. But so the 145 days,

through that, per year, right? That's per

year?

DR. RIJAL: Yes. That's each year.

MS. WILLIAMS: During that period of

2004 to 2006 were days that a measurable

rainfall occurred.

DR. RIJAL: Yes.

MS. WILLIAMS: Okay. Not whether it

rained the day before --

DR. RIJAL: No. This was based on a

measurable rainfall, rain gauge data.

MS. WILLIAMS: And if it did not rain

that day, it was considered a dry weather

day.

DR. RIJAL: We will have certain times

that it would be included in the light -- no,

not in the -- it would be -- see, if you see

the definition of light rain event that it

has a dry period of one to two days prior.

MS. WILLIAMS: So within that 145 days

you're including impacts from prior days.

DR. RIJAL: No.

MS. WILLIAMS: Any measurable rainfall

occurred on the same day or one or two days

prior?

DR. RIJAL: What is your question then?

MS. WILLIAMS: I know. I haven't asked

the question yet, but --

HEARING OFFICER TIPSORD: Just a

minute, Miss Meyers-Glen.

MS. WILLIAMS: Do you have a

follow-up?

MS. MEYERS-GLEN: I'm absolutely

confused on this definition of dry weather,

especially if you put it next to the

definition of wet weather. So if I could

look at the definition of dry weather for a

second, specifically looking at --

HEARING OFFICER TIPSORD: You need to

keep your head up and project out. She can't

hear you.

MS. MEYERS-GLEN: Thank you. First of

all, for the record, Stacy Meyers with

Openlands. I'm looking at Page 4 of your

testimony and you define dry weather here, as

you just stated, as defined as any day on

which no measurable rainfall occurred.

Including no rainfall two days prior and one

day after a day on which a routine fecal

coliform sample was collected. And I'm

confused. I don't understand where you --

what the significance is of and one day after

the day on which a routine fecal coliform

sample was collected as defining dry weather.

Can you explain that?

DR. RIJAL: Okay. I think you're

getting confused here. Now, the explanation

I provided here on the Page 4 is this is the

way the data was grouped for the fecal

coliform levels that constituted the dry

weather. And your question was about how do

you define the rainfall wet weather event

from 2004 and how did I come up with the 145

days. Now, the 145 days that we got average

for 2004 to 2006 is based on attachment 5 of

the report. If you see Table 1, Page 5.

MS. MEYERS-GLEN: I --

DR. RIJAL: As I mentioned earlier, so

that's the rainfall -- based on this data

here where we have actual rain gauge data for

2004, 2005, 2006 at each North Side and the

Calumet location, we have number of days of

gauges in operation, and that's how we got

the wet weather days, 145 days. And the

fecal coliform levels were grouped in dry

weather, light rain, just to make sure that

we don't get the effect of the rain event.

So we collected the fecal coliform samples

two days prior to when it didn't rain and one

day after the rain. So that constituted the

dry period FC levels here. So I think we are

comparing two different things here.

MS. MEYERS-GLEN: Okay. So I'm trying

to clarify, though -- thank you. But I'm

still confused. And maybe this is just me,

but I'm trying to work this out here. I'm

trying to figure out -- you're saying not --

are you saying now that it was one day after

there was a rain event?

DR. RIJAL: That was for --

MS. MEYERS-GLEN: Is that what that

means, the one day after the day in which a

routine coliform sample was collected?

That's how you're defining --

DR. RIJAL: That would be the light

rain. In the dry weather there was no

rainfall one or two days prior and on which a

routine fecal sample was collected. No

rainfall two days prior.

MS. MEYERS-GLEN: Okay. I'm --

MS. WILLIAMS: Can I --

MS. MEYERS-GLEN: Specifically as to

that phrase, I'm trying to just confine --

I'm confused specifically about that phrase,

so I'm trying to understand what that

particular phrase means, trying just to leave

wet weather out of it for just a second,

honing in on that. When you say you define

dry weather, in part, as one day after the

day on which a routine fecal coliform sample

was collected. Can you please describe to me

what that means as far as metrics?

DR. RIJAL: If we had already

collected the data, we do go out, as I

mentioned, first Tuesday and the second, what

was it, Thursday that was routine samples

were collected. So it happens to be that we

have the data. So we have the fecal coliform

data. So it doesn't -- it didn't trigger us

to go and take the sample. Is that why

you're getting confused? So we looked at the

rain gauge data and we have the FC levels.

So if it didn't rain two days prior to the

day we sample and also the following day

there was no rain, then that was -- that

would be the dry weather data.

MS. MEYERS-GLEN: So there could have

been other dry weather days that aren't

captured by this but occurred. You guys just

didn't measure those because they didn't fall

within the dates that you were sampling; is

that correct?

DR. RIJAL: No. Also, there is a

possibility that we didn't sample, you know,

because it could have been the weekdays or

weekend and we have reported that no samples

were collected. But we have the rain gauge

information for those dates, too.

MS. MEYERS-GLEN: Okay. So this is

going to be a different definition than

generally when you're talking about dry

weather?

DR. RIJAL: This is the dry weather

definition.

MS. MEYERS-GLEN: Are you using this

for everything you're talking about today

when you say dry weather, or does this

definition only pertain to this particular

report when you're looking at measurements?

DR. RIJAL: Only this report for the

measurements, yes.

MS. MEYERS-GLEN: So when you're not

looking at this report and you're not talking

specifically about how you measured, what

then is your general definition of dry days,

dry weather days? How is that different?

DR. RIJAL: Well, as I mentioned this

morning, too, the dry weather in terms of the

fecal coliform levels has some influence of

the wet weather event. And which could be

two days or longer, we don't know.

MS. WILLIAMS: Okay. Let me -- I

think that there's just one piece of this

definition that I'm knocking around and I

really think we need to close the loop on.

You went out on Mondays and Thursdays, right?

That was the routine days?

DR. RIJAL: Yeah.

MS. WILLIAMS: I forget what you said,

second of one --

DR. RIJAL: Routine, yeah, it is in

the report. I don't have the dates, but.

MS. WILLIAMS: The second Tuesday and

the first Monday or the first Tuesday and

second Monday. Okay. First Tuesday you go

out, you take a sample. It's not raining.

Then the first Wednesday following the first

Tuesday of it rains. That was not considered

a dry weather sample?

DR. RIJAL: So the first Tuesday and

then the Wednesday sample?

MR. ANDES: The next day you mean the

following --

MS. WILLIAMS: The next day it rains.

You take a sample. The day after it rains.

The sample is what?

DR. RIJAL: If it's collected Tuesday,

but this -- we take a weekly sample.

MR. ANDES: Taking samples two days in

a row.

DR. RIJAL: We are not taking --

HEARING OFFICER TIPSORD: Right. The

question is they took the sample on

Tuesday --

MS. WILLIAMS: I understand that.

HEARING OFFICER TIPSORD: You took the

sample on Tuesday. It rained Wednesday. Is

that a wet weather, light rain, or dry

weather sample?

MR. ANDES: And if it didn't --

DR. RIJAL: If it -- if it didn't rain

prior to that day, then it would be a dry

weather data.

HEARING OFFICER TIPSORD: Even if it

rained on Wednesday after you took the sample

on Tuesday?

DR. RIJAL: Yeah.

HEARING OFFICER TIPSORD: That's not

what you've been saying.

MS. WILLIAMS: So why does it say two

days --

HEARING OFFICER TIPSORD: Now we're

getting -- Hang on. Sorry. Because what

she's been saying is if it rained the day

after you took the sample it was a light rain

day.

MR. ANDES: Right, right.

HEARING OFFICER TIPSORD: Okay.

That's the question we just asked. You took

a sample -- we go out and take a sample

today. It didn't rain yesterday or the day

before. We take a sample today, it rains

tomorrow, that is not a dry weather sample;

is that correct?

DR. RIJAL: That is not a dry

weather sample.

HEARING OFFICER TIPSORD: That is a

light rain sample, correct?

DR. RIJAL: That is a light rain

sample.

MS. WILLIAMS: Why? Please tell me

why.

DR. RIJAL: Well, you know, if you

look at the -- you know, we have those

routine samples, but just to understand the

microbiological quality, we didn't bias it,

but we grouped it based on this definition

here. We grouped the data into what

available data we had, we grouped it to see

the estimate die-off rate after any rain

event. So that was the main purpose also to

see if fecal coliform levels.

MR. ANDES: Is part of it also

since -- is part of it also that you want to

make sure that when you sample that you're

not collecting wet weather flow that's coming

from downstream and you're not -- and that

gauges are in certain locations but aren't

necessarily reflecting rainfall all over the

area? So you're trying to have a --

MS. WILLIAMS: I think he's leading

the witness.

MR. ANDES: If this is wrong, then she

can tell me. But if that also reflects a

margin around the data to make sure that's a

dry weather day?

DR. RIJAL: Yeah.

MS. WILLIAMS: Yeah what? Explain to

me what, yes what?

DR. RIJAL: Yes. It's a dry

weather -- because, you know, based on the

definition here we have grouped it as a light

rain, as you mentioned earlier.

MS. WILLIAMS: But you don't think it

could bias the light rain data to include

days where it didn't rain?

DR. RIJAL: You know, if you look at

the fecal coliform date, that was the -- we

categorized it that way. But if you look at

the levels, it doesn't bias the results.

MR. ANDES: Does that only bias it

down?

DR. RIJAL: Yeah.

MS. WILLIAMS: Is this definition used

anywhere else in any of the District's

reports or information submitted into this

record or just in this particular report?

DR. RIJAL: This is just in this

report.

MR. ANDES: If I can follow up on

that. If you classified a day as light rain

that someone else could have been

characterizing it as dry weather, isn't that

only going to take the light rain numbers

down compared to where they would otherwise

be? They'll be lower because they'll only

reflect dry weather sources?

DR. RIJAL: Yeah. It's possible.

MS. WILLIAMS: Yeah it's possible

what?

DR. RIJAL: That, you know, the levels

what we have in here is based on the

definitions that we have used to categorize

both the light rain, the dry weather data,

and the heavy rain. But I, you know, it's

not that whether -- we cannot just go and

collect samples. The samples were already

scheduled for certain dates. It is only

during the heavy rain period we followed, you

know, the sampling.

MS. WILLIAMS: Right. I understand

that. And I don't -- and I don't -- I'm

not -- I understand why you look at two days

prior, but I'm not sure I understand this one

day after.

HEARING OFFICER TIPSORD: Miss Dexter,

you had a follow-up?

MS. DEXTER: I want to make sure I'm

reading this right. If you did classify what

was -- what many of us would consider a dry

day as a light rain day would that bias the

percentage of days that you're calling rain

days in your report? Would it make it so

there were -- there was a greater percentage

of rainfall days or wet weather days in

your --

DR. RIJAL: No. I think, again, this

is the grouping that we used to group the

fecal coliforms. But we, as I mentioned in

the Attachment 5 of the -- my testimony, in

this report, Table 1, Page 5, the rainfall

datas were based on the rain gauge number of

days that we measured -- measurable amount of

rainfall.

MS. DEXTER: So those two are not

related at all?

DR. RIJAL: No. These are the actual

rainfall levels, so this happened in the

Chicago area during 2004 through 2006, and

that's how we -- from this table here we got

an average of about 145 days where measurable

rainfall fell in the Chicago area.

HEARING OFFICER TIPSORD: But you're

not saying that there was 145 wet sample

days, right? The 145 is the days it rained,

but you're not saying that there were 145 wet

sampling days?

DR. RIJAL: No.

MR. ANDES: I might suggest also that

we also -- one of the other authors of that

report, Sam Dennison here who I believe has

already been sworn in for other testimony,

and I think he might be able to add something

to this.

HEARING OFFICER TIPSORD: Okay.

MR. DENNISON: Probably I hate to say

this, but could you --

HEARING OFFICER TIPSORD: You need to

speak up a lot.

MR. DENNISON: I hate to say this, but

could you please state a question that I

could answer now.

HEARING OFFICER TIPSORD: No. I think

you just need to clarify what you -- if you

have something to add you can just add it at

this point. I mean I don't know what

question you're looking for.

MR. ANDES: The particular issue might

be that when we define dry weather for

purposes of this report to include samples --

I'm sorry. We include light rain, define

light rain to include where there was no rain

for two days before but there was rain the

day after the sample is collected that was

defined to be a light rain sample. So the

question is why is that defined to be a light

rain sample when the rain only occurred after

the sample was collected:

MS. WILLIAMS: I mean I think the

question is confusing because you didn't

actually define light, right, but you -- but

you grouped the data that way. Is that the

better --

DR. RIJAL: Yeah, that's correct.

That's correct.

HEARING OFFICER TIPSORD: Did you have

anything you wanted to add?

MR. DENNISON: Evidently not.

MEMBER JOHNSON: Hell of a job.

HEARING OFFICER TIPSORD: Dr. Girard

has a question.

CHAIRMAN GIRARD: Is all the data in

the report so that if somebody else wanted to

regroup the data to come up with their own

definitions they could regroup it and

recalculate it and come up with something?

DR. RIJAL: Yeah. The data is data.

Whatever is -- you know, we have FC levels

for the days that we collected samples. So,

you know, we could take those data and

reanalyze it. Yes, you can do that.

CHAIRMAN GIRARD: And anybody else who

would like to make up their own definitions

and recalculate could do that.

DR. RIJAL: Well, it's -- you know, we

tried to understand like, you know, how does

the fecal coliform density, the die-off rate

is seen during the dry period and what

happens in between the dry and the storm

events like in heavy rain period in between.

So to understand that, this grouping was

introduced.

CHAIRMAN GIRARD: Thank you.

HEARING OFFICER TIPSORD: Go ahead,

Miss Williams.

MS. WILLIAMS: I think I left off at

7B. Did you review whether heavier rains

were occurring upstream of the CAWS during

the periods you define as light rain? And I

think -- did you answer no already to that?

DR. RIJAL: Yes. The information we

used was based on the District monitoring

stations only.

MS. WILLIAMS: And would it be

possible to look at other meteorological data

to determine one way or another?

DR. RIJAL: What other meteorological

data -- we collected the rainfall database

on the North Side plant and the pumping

station and also the CSOs based on the -- the

data would be -- reflects the best available

data we have for the CSO events.

MS. WILLIAMS: I just felt that other

witnesses for the district had indicated

there was lots of meteorological data out

there that if you wanted to look and see if

it had been raining elsewhere that wouldn't

be that difficult to do, but that wasn't

something you considered doing, right? Is

that correct?

DR. RIJAL: That's correct.

MS. WILLIAMS: What about did you look

at whether -- Question C says did you review

and take into consideration whether the

disinfection exemption season for treatment

plants upstream of the CAWS were responsible

for bacteria levels found?

DR. RIJAL: I believe there are no

treatment plants upstream of the CAWS. There

is one treatment plant which discharges to --

which is in the Lake County which discharges

to the shallow region of the north branch of

the Chicago River, and there is no treatment

plant at, you know, the upstream location of

the Calumet. There is one which is more

close to the Lake Michigan which discharges

into the Grand Calumet River at Indiana. So

it's far upstream.

MS. WILLIAMS: But there is -- you

said there's one in Lake County?

DR. RIJAL: Yeah.

MS. WILLIAMS: Do you know the name of

that?

DR. RIJAL: I don't know the name.

MR. ANDES: If I can follow up. In

your analysis you weren't trying to figure

out where the bacteria, what sources the

bacteria was coming from? You were just

trying to measure what the levels were?

DR. RIJAL: Actual levels in the CAWS.

MR. ANDES: Thank you.

MS. WILLIAMS: On Pages 5 and 6 of

your testimony you state, quote, it is

evident from this analysis that disinfection

of the North Side and Calumet waste water

treatment plant effluence during wet weather

would not improve the CAWS microbial water

quality downstream of these WRPs in terms of

compliance with the proposed effluent

standard. If MWRGDC installed disinfection

technology at these plants, would they

function in both wet and dry weather?

DR. RIJAL: Well, I'm not an engineer.

I'm not qualified to answer this question.

MS. WILLIAMS: You don't know whether

they keep the chlorination running at the

other three district plants when it rains?

DR. RIJAL: At the smaller plants?

Yeah. Because the discharges is to the

general use water.

MS. WILLIAMS: Do you understand where

compliance with an effluent standard is

measured?

DR. RIJAL: Yes. End of the pipe in

the effluent.

MS. WILLIAMS: And you have no reason

to believe that it would not be met?

DR. RIJAL: You know, the system

designed in hydraulics and engineering. I

don't know if that will handle the wet and

dry flow, so, yeah, I would not answer.

MR. ANDES: If I can follow up. Am I

correct to say that your statement was just

intended to say that this disinfection would

not improve water quality in the stream in

terms of whether it met 400 as a benchmark

level?

MS. WILLIAMS: Objection, 400 is not a

number in the stream. That needs to be met

in the stream. Why is this a follow-up?

MR. ANDES: It's a number as a point

of reference. She used it as a point of

reference. She can say that's what she did.

MS. WILLIAMS: Okay. Go ahead.

DR. RIJAL: I am lost now.

MR. ANDES: When you made the

statement about the water quality downstream

of the plants in terms of compliance with the

proposed effluent standard, what were you

using the proposed effluent standard for?

DR. RIJAL: We were using 400 --

MR. ANDES: And were you using it as a

water quality standard?

MS. WILLIAMS: Wait. Excuse me. She

started to answer and you cut her off.

MR. ANDES: I thought she was done.

MS. WILLIAMS: Let her answer.

MR. ANDES: Go ahead.

DR. RIJAL: Well, I'm comparing

whether the technology-based effluent limits,

which is 400 CFU per 100 mL, justifies what

the levels, ambient levels of the

microbiological quality of the CAWS water

quality is.

MS. WILLIAMS: Is there any relevance

to that comparison at all? What possible

relevance is there to that comparison?

DR. RIJAL: There is, from a public

health standpoint of view, you know, the

technology-based effluent limits of 400 CFU

is not justified when higher elevated FC

levels are discharged --

MS. WILLIAMS: From a public health

standpoint?

HEARING OFFICER TIPSORD: Let her

finish as well, Miss Williams.

MS. WILLIAMS: I understand.

DR. RIJAL: Is discharged into the

waterways. And the ambient level in the CAWS

are usually higher than the 400 fecal

coliforms per 100 mL. So as, you know, I

have mentioned earlier, it's not --

MS. WILLIAMS: So if what they were --

DR. RIJAL: -- reflective of the water

quality, microbiological water quality of the

CAWS in terms of 400 CFU per 100 mL.

MS. WILLIAMS: What if they were 401?

What if the ambient levels were 401? Would

you still have the same conclusion about

disinfecting down to 400?

DR. RIJAL: No. You know, I don't

know if 4 -- I'm not sure if 400 or 401 is an

appropriate level.

MS. WILLIAMS: Thank you. That's what

I thought.

Question 10 asks whether you

have any information that would quantify the

ratio of nonpoint to point source loads of

bacteria contamination to CAWS?

DR. RIJAL: Are you asking a question?

MS. WILLIAMS: Yes. No. 10, the first

part of the question, do you have any

information that would quantify the ratio of

nonpoint to point source close bacterial

contamination in the CAWS?

DR. RIJAL: You know, we do not have a

quantitative information of point sources

versus nonpoint source contribution into the

CAWS. But it is appropriate to say there are

nonpoint source contribution into the CAWS.

MS. WILLIAMS: And are there dry

weather?

DR. RIJAL: Both dry and wet weather.

MS. WILLIAMS: Do you have any

information about what the dry weather

sources of fecal to the system would be other

than --

DR. RIJAL: The dry weather -- yeah.

It could be birds. They rest on the CAWS,

and, actually, this point and nonpoint source

was part in my testimony because I reviewed

the EPA urban storm water report, and this

report had -- EPA report did an extensive

storm water studies in different cities and

has reported high levels of fecal coliform

bacteria which ranges from the 400 CFU to

50,000 in the storm events that is

discharged. And they have also reported that

it will exceed the coliform criteria of

the water quality criteria, so.

MS. WILLIAMS: Does the report you're

talking about address dry weather

contributions?

DR. RIJAL: Well, the storm events

are -- could be triggered not only by wet

weather, it could storm events -- some of the

storm is like just rain coming out from the

park or your lawn. So there are some

nonpoint source contributions to the

waterways. And you have wild animals and --

one gram of goat feces contains billions and

millions of fecal coliform bacteria so there

is a potential of nonpoint source

contribution to the CAWS.

MS. WILLIAMS: But would you have

any -- we don't really have any science at

this point that helps us distinguish the

contributions?

DR. RIJAL: You know, when we were

conducting the study, we didn't address the

issues, but we have entered into an

inter-agency agreement with the UCM (ph.),

and we are looking into nonpoint source of

indicator bacteria in the North Shore Channel

area.

MS. WILLIAMS: Okay. I think we

talked about Question 11, but let me go over

it here. On Page 4, Paragraph 3 of your

testimony you indicate that, quote, upstream

of the North Side water reclamation plant and

upstream of CAWS at Albany Avenue, the level

of bacteria exceeded the proposed effluent

limit in a percentage of the time during

heavy rain, light rain, and dry weather.

Question A, how did you insure

that your upstream North Shore channel

samples were not contaminated by backflows of

the plan?

DR. RIJAL: My understanding is that

the backflow is unlikely.

MS. WILLIAMS: So you don't think

there is any backflow?

DR. RIJAL: Yeah.

MS. WILLIAMS: Okay. Thank you.

HEARING OFFICER TIPSORD:

Miss Meyers-Glen?

MS. MEYERS-GLEN: Thank you. I just

want to clarify. Do you think that birds

that are resting along the CAWS, say, like

the Cal-Sag Channel are a significant source

of pathogens or fecal coliform compared to

the 1.17 billion gallons of effluent that's

released by the plants from the district

every day?

DR. RIJAL: I didn't say the

significance there. The potential sources of

nonpoint contribution of fecal coliform load

into the waterways.

MS. MEYERS-GLEN: So you think then

that it is significant compared to that

amount of effluent released?

MR. ANDES: That's not what she said.

HEARING OFFICER TIPSORD: She

didn't --

MS. MEYERS-GLEN: I'm trying to -- I

cannot -- I'm sorry. Can you please repeat

your answer because I didn't hear it.

DR. RIJAL: The bird discharges are

potential sources of fecal coliform

contribution into the waterways.

MS. MEYERS-GLEN: But do you think

that it's significant compared to the amount

of effluent that the District is pumping into

the CAWS every day?

MR. ANDES: And she doesn't have to

accept the argumentative nature of your

question, right?

DR. RIJAL: We don't know. We

investigate that, we will investigate that in

our studies. We are looking into that. We

are doing a study and we will investigate

that.

HEARING OFFICER TIPSORD:

Miss Williams, we're back to you.

MS. WILLIAMS: I'm so sorry.

Question 13A asks the same

question that you just answered about

backflow from the north shore plant to the

Calumet plant. Can you answer that? Do you

also believe there's no backflow to --

DR. RIJAL: It is my understanding

that it's highly unlikely.

MS. WILLIAMS: Okay. I'm going to

look at 14. I'm not sure if I need to come

back to part of this, but I'd like to move on

to 14. You state in Paragraph 4 on Page 5 of

your testimony that, quote, estimated wet

weather fecal coliform density -- well, hang

on. You may have answered this, too. Let me

take a second. So let's try and look at 15.

On Page 6, Paragraph 1 of your

prefiled testimony you state during wet

weather even light rainfall periods, the CAWS

receives CSO municipal separate storm water

sewer system and nonpoint bacteria loads that

result in elevation of fecal coliform

concentrations in the CAWS to levels much

higher than are observed during dry weather

such that disinfecting wastewater treatment

plant effluents will not result in

substantial reduction in fecal coliform

concentrations in the water. Question A, do

you have data to support your exclusion of

municipal separate storm sewers event and

nonpoint bacteria loads in your statement.

Why don't we take municipal separate storm

system first.

DR. RIJAL: It is my understanding

that there are storm sewers that feed into

the CAWS, and one of the District's study

that was conducted on storm -- the district

report on the characteristic of storm water

run-off sample at storm sewers and --

MS. WILLIAMS: Would you give us a

number?

DR. RIJAL: No. This -- you know, I'm

answering that. So that bases my

understanding from this report that there are

some storm sewers which has been identified

in the Chicago areas which contributes to

discharge to the CAWS.

MR. ANDES: And we can provide a copy

of that report that she's relying on.

MS. WILLIAMS: I would like to know

the number of the report so I can understand

if we need a copy.

DR. RIJAL: Okay. The report

number 03 -- 2003-25 and the title is

Characteristics of Storm Water Run-off Sample

at Two Storm Sewers in Evanston and

Crestwood, Illinois.

MS. WILLIAMS: And is it correct that

that report does not take fecal coliform

measurements?

DR. RIJAL: It did not take fecal

coliform, but we had some samples

periodically collected and analyzed in the

lab and we have levels of fecal coliform in

that, so under that understanding --

MS. WILLIAMS: Wait. So the report

did not address fecal coliform but it was

that -- it was sampled for, just not

included in the report?

DR. RIJAL: It's -- it was not

included in the report because we have done

few sample collected after 2006. So this is

what you're talking about the testimony, so

we included that as a potential source of

storm sewers. So it's -- Your question is

geared towards my testimony.

MS. WILLIAMS: Right.

DR. RIJAL: Is that right?

MR. ANDES: Can I follow up? So the

question is when you included in that 15 that

the CAWS receives municipal separate storm

sewer load, bacteria loads, as one of the

sources that result in high fecal levels.

What was your basis for saying that?

DR. RIJAL: Based on, you know, based

on this report and also, you know, we have

our own analysis done after the period 2 --

you have you know, the sampling period ended,

we had some data and we showed number of

fecal coliform.

MR. ANDES: Also general knowledge of

documents, EPA documents and other

information.

DR. RIJAL: The review of the EPA

documents, yes.

MS. WILLIAMS: I'm just -- I'm really

not trying to trip you up.

DR. RIJAL: But to answer your

question is we have limited data. We have

just limited data and we did not include in

the report. But in my testimony I have

mentioned it because those are potential

sources of FC loading into the CAWS.

MS. WILLIAMS: So maybe could we see

that data?

DR. RIJAL: Yes.

MS. WILLIAMS: Okay. Thanks.

Question B on 15 says when you say

disinfecting effluents will not result in a

substantial reduction of fecal coliform

concentrations in the waterway. Do you mean

at all times or during wet weather?

DR. RIJAL: Might have -- can we show

that chart, that Figure 1?

MS. WILLIAMS: Was there a chart you

wanted us to look at?

DR. RIJAL: I'm referring to the

Figure 1 in my testimony. But I would like

to correct the page. I'll be providing you

that figure. We have a hard copy of it.

MR. ANDES: I believe we also have a

chart of that.

HEARING OFFICER TIPSORD: Where is

this chart located in the testimony?

MR. ANDES: This is actually a

corrected version of the chart that --

DR. RIJAL: It's on the Page 5 of my

testimony which is Attachment 5. But the

page that you will receive is the corrected

page because the south area figure was copied

-- was scanned incorrectly.

HEARING OFFICER TIPSORD: Okay. So

this is Figure 1 from Page -- a corrected

version of Figure 1 from Page 5 of

Exhibit 113 marked north area and south area.

We will mark this as Exhibit 115 if there is

no objection.

MS. WILLIAMS: But -- there's no

objection, but I want to understand for the

record which attachment to that exhibit.

HEARING OFFICER TIPSORD: It's not an

attachment. It's part of the actual prefiled

testimony.

MS. WILLIAMS: It was left off.

HEARING OFFICER TIPSORD: Page 5 of

the prefiled testimony. There's two charts

there on Page 5 of prefiled testimony. This

is a corrected version of that figure one and

it's marked as Exhibit 115.

MS. WILLIAMS: Thank you.

MS. DEXTER: Can I just ask?

HEARING OFFICER TIPSORD: Go ahead,

Miss Dexter.

DR. RIJAL: I'm going to come here and

explain because I don't want to complicate or

confuse you.

HEARING OFFICER TIPSORD: Dr. Rijal,

let her ask a question.

MS. DEXTER: Is this chart something

that appears in one of the reports to the

attachment here?

HEARING OFFICER TIPSORD: No, no.

It's not a -- It's in the testimony.

DR. RIJAL: It's part of the

testimony, too, and also it's the part in the

report.

HEARING OFFICER TIPSORD: Attachment 5

as well.

MS. DEXTER: I just want to make sure

I have the 0515 on Pages 8 and 9.

DR. RIJAL: Yes.

So this figure here we have

the fecal coliform levels. This is estimated

fecal coliform levels, the actual levels that

we measure during the dry weather period and

the wet weather period. And what we did is

to determine what might offer when there is a

disinfection which will eliminate the FC

burden in the CAWS, we subtracted the dry

weather fecal coliform from the wet weather

fecal coliform loading and then we subtract

that, the results shown across here is the

fecal coliform levels in the waterway. And

if you look at this figure here, this is

without disinfection wet weather conditions,

and this is with disinfection. So no matter

with or without disinfection during wet

weather, there is no marginal difference in

FC concentration in the waterway.

HEARING OFFICER TIPSORD: Dr. Rijal,

you're going to have to be more specific for

purposes of the transcript. When you say

disinfection on this chart, you're talking

about the solid black --

DR. RIJAL: Okay. This is the solid

black circles and this is the clear circles.

HEARING OFFICER TIPSORD: And the

clear circle is?

DR. RIJAL: The dry weather.

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: For the record, Keith

Harley. My question is, did you do an

analysis of what the levels would be in dry

weather conditions if disinfection were

reported?

DR. RIJAL: Assuming that the

disinfection will reduce the burden, we

didn't put any number here. But if we're

assuming that there is a reduction in this

fecal coliform numbers here.

MR. HARLEY: Why didn't you add in a

trend line for dry weather conditions with

disinfection?

DR. RIJAL: Well, it would be

similar -- it would be -- the trend line

would be somewhere here, (indicating).

MR. ANDES: Was that part of the

purpose of the study?

DR. RIJAL: That was not the purpose

of the study, yeah. So to answer your

question, during wet weather condition, it is

evident that with or without disinfection,

there is no improvement in the

microbiological quality in the CAWS whether

in the north area or the south area. And

this level here, you see that they are higher

than the proposed 400 CFU per 100 mL limits.

Now, again, I hope I will not confuse you

more, but when we also factor in the

lingering effects that we measured following

a rain event, the elevated high FC levels

were observed two days, minimum of 48 hours

after the rain event, we factored that in so

we will get the similar trend. So which,

again, which extends to the dry weather,

those levels will be higher than the 400 CFU

per 100 mL. So to answer your question is

that not only to do the wet weather, but you

will see that the microbiological quality

improvement in terms to the 400 CFU cannot be

met during the dry weather conditions, too.

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: Were you a part of

designing the study which gave rise to this

data?

DR. RIJAL: What do you mean part of

the study? I was involved, but I was not

completely involved in this -- during the

time the study was launched in the beginning.

MR. HARLEY: As you were conducting

the study, were you concerned that given the

number of dry weather days, that there was

not an analysis of the effect of disinfection

during dry weather periods?

DR. RIJAL: I think the purpose of

this study was to see what levels exist and

if at all there would be a disinfection what

would be -- what would be the microbiology

quality of the waterways under that

condition.

MR. HARLEY: But only during wet

weather periods?

DR. RIJAL: Wet and water defects so

the days following the wet weather events.

MS. WILLIAMS: And how will the

completion of TARP impact these curves?

DR. RIJAL: You know, I will not get

into --

MS. WILLIAMS: In a general sense.

DR. RIJAL: I will not get into that,

but, you know, I will say in general sense

microbiological, you know, it's complex to

control the waterway, you know, the water

quality, micro -- water quality. There are

several input and continuous point system.

It's not a swimming pool like where you --

it's contained. So the microbiological

quality will change over time. And, you

know, I'm not the best person to answer that

question.

MS. WILLIAMS: Would you say that your

conclusions presumes that the wet weather

situation will continue into the future?

DR. RIJAL: I think the wet weather

has an impact in the microbiological quality

of any waterways, yes.

MR. ANDES: If I can follow up. Two

questions: One is you were attempting to

portray the sources that currently exist and

their contributions. Am I right?

DR. RIJAL: Yes.

MR. ANDES: What's your understanding

of how long it's going to take until TARP is

scheduled to be completed?

DR. RIJAL: My --

MS. WILLIAMS: Wait. I object. She

can't say she doesn't know anything about it

when I ask her, but when you want to ask her

she can --

MR. ANDES: I asked what her

understanding is as to when it's scheduled to

be completed, not how much reduction it will

make. It's public record when it's scheduled

to be completed.

MS. WILLIAMS: Well, I think it's

public record now what's going to happen

after TARP because --

HEARING OFFICER TIPSORD: Wait a

minute. Let's go off the record.

(Off the record.)

(Short break taken.)

HEARING OFFICER TIPSORD: Let's go on

the record and I'll rule Dr. Rijal can answer

the question, and the question is what's your

understanding of when the TARP is due to be

completed.

DR. RIJAL: Well, I don't know exactly

because there were different numbers. I

think the complete TARP reservoir completion

phase, I think, is 2024.

HEARING OFFICER TIPSORD:

Miss Williams, we're back to you.

MS. WILLIAMS: Question 16, your

conclusions about the Des Plaines River

upstream from the CAWS leads you to believe

that disinfection by wastewater plants that

discharge into that water body is unnecessary

or inappropriate?

DR. RIJAL: I didn't make any

conclusions.

MS. WILLIAMS: Wouldn't your logic,

though, apply to that situation as well that

you use in your report?

DR. RIJAL: I am not going to apply

that, no. Because it's discharge to the

general use water.

MS. WILLIAMS: And that's the

distinction to you because it's a general use

water?

DR. RIJAL: Yes.

MS. WILLIAMS: Attachment 2 to your

testimony, I just want to understand if

that's a literature search that you

conducted?

DR. RIJAL: Yes.

MS. WILLIAMS: And the text within

that was drafted by you?

DR. RIJAL: Yes.

MS. WILLIAMS: Question 20, I believe,

was what I was trying to get to in my

follow-up. I think it's worded more clearly

here, and I don't believe it was answered

previously. Would disinfection significantly

reduce CAWS bacteria concentrations during

the dry weather conditions?

DR. RIJAL: You know, I do not know

because we are looking into the Stickney

plant, the North Side and the Calumet. What

do you mean by significant reduction?

MS. WILLIAMS: How about would there

be any reduction?

DR. RIJAL: There will be reduction.

MS. WILLIAMS: That's fine.

HEARING OFFICER TIPSORD: Mr. Harley,

do you have follow-up?

MR. HARLEY: Yes. To your knowledge,

is the District involved in any review or

study about the effect of disinfection during

dry weather conditions?

MR. ANDES: I'm sorry. Effect on?

Effect on what?

MR. HARLEY: On water quality, on

fecal coliform levels in receiving waters.

DR. RIJAL: I am aware that there are

some pilot tests going on, but I don't have

the data in front of me.

MR. ANDES: I'm sorry. Are those

pilot tests as to the --

DR. RIJAL: The disinfection, yeah,

different types of disinfection looking at

the reduction of fecal coliform load.

MR. HARLEY: But more specifically,

has anyone at the District, to your

knowledge, evaluated the effect of fecal

coliform levels in receiving waters during

dry weather conditions if disinfection were

to be employed?

DR. RIJAL: There has been studies

done in the past when chlorination, and, you

know, was imposed and there was no

significant improvement in the

microbiological quality of the CAWS from that

study and there was -- I believe it was Chuck

Haas (ph.) study.

MR. HARLEY: That was from 20 or more

years ago?

MS. WILLIAMS: What study are you

referring to?

DR. RIJAL: Chuck Haas study, the

chlorination, impact of chlorination -- I

don't have the exact title here.

MR. ANDES: We can provide it.

DR. RIJAL: We can provide you that

copy.

MR. HARLEY: Also on the issue of dry

weather conditions versus wet weather

conditions, in your prefiled testimony, you

refer to wet weather conditions in terms of

rain events or precipitation events. Did you

ever correlate those precipitation events to

CSO overflows?

DR. RIJAL: No, we have not done that.

MR. HARLEY: So you don't know that if

it rains that there was a CSO overflow that

was associated with that precipitation event?

DR. RIJAL: In this report that is

Attachment 5, we do have during the heavy

rain period which triggered CSO, we have data

on that.

MR. HARLEY: I don't just mean during

the heavy rain period, but if there is a

light rain which for purposes of your

testimony is a wet weather event, you don't

know whether or not that resulted actually in

a CSO overflow?

DR. RIJAL: It is my understanding

that I don't have that data if there was any

CSO reported on that date from the district

CSO reporting site.

MR. HARLEY: So you don't know that

just because there was a wet weather event

that there was any CSO contribution into the

CAWS during that wet weather event?

DR. RIJAL: Well, we do -- yeah. We

have those days identified -- it's in the

appendix of this table here and we have

identified the CSO pumping station discharge

to the CAWS. And it is just marked -- it's

in the appendix tables.

MS. WILLIAMS: And in terms of the 145

days that you identify as wet weather events,

during those 145 days that you've identified

corresponding that to the information you

just referred to, how many CSO events were

there?

DR. RIJAL: The 145 days is annual I'm

talking about. So if we compare 2004 to --

in 2004 we had based on this data here for

north shore -- North Side we had --

MR. ANDES: And we'll get back to you

with a tabulation rather than add it up here.

DR. RIJAL: -- four.

MR. HARLEY: Did you say four?

DR. RIJAL: Four for the North Side.

MR. HARLEY: So there were 145 wet

weather days, but there were only four CSO

overflows reported at the North Side plant?

DR. RIJAL: The North Side area, yes.

MR. HARLEY: So the CSO

contribution --

MR. ANDES: Wait, wait. Are you

saying during the wet weather days there were

only four?

DR. RIJAL: Those are heavy rain days,

during the heavy rain days.

HEARING OFFICER TIPSORD: Excuse me,

if I can. I think that we're going back and

getting confused on this wet weather issue.

The 145 days are not considered wet weather

days. They're 145 days that --

DR. RIJAL: Measured rainfall.

HEARING OFFICER TIPSORD: -- measured

rainfall.

MR. HARLEY: And those measured

rainfall days are the -- what's referred to

throughout your testimony. My question is

how many of those measured rainfall days

correspond with days when there were CSO

overflows?

DR. RIJAL: We don't -- we didn't

correlate that data, no. We don't have that

data.

MR. HARLEY: So why does it matter how

many rain days there were if there were no

CSO overflows potentially on those days?

MR. ANDES: She's not saying there

weren't any overflows.

MR. HARLEY: How then would the

contribution of CSOs have -- how would the

fact that a rain in any way affect the fecal

coliform levels in water if there were not a

CSO event?

MR. ANDES: During which category of

days are you talking about?

MR. HARLEY: The 145 rain days.

MR. ANDES: But that's not part of

this study.

MEMBER RAO: Do you have that CSO

data that could be used to correlate it?

DR. RIJAL: You know, we have only the

CSOs that reported on the days we sample

heavy rain days from 2004 to 2006. That's

what we have. Is that correct?

MR. DENNISON: Yes.

DR. RIJAL: Sam was involved in the

study and that's the number we have reported

in the study.

MEMBER RAO: I know what you have

reported in the study. I'm generally asking

if the District has CSO data during that same

time period for the entire year which

somebody else could use it to correlate it

with 145 rain days you had to see whether

there was a CSO discharge or not. Do you

have the data, not in the report, but

generally with the District?

DR. RIJAL: It's in the quarterly

report, and I think Susan went over it this

morning. I think she gave certain numbers

for --

MR. ANDES: I believe we're going to

provide those --

DR. RIJAL: We will provide those

information.

MR. ANDES: -- reports, and somebody

could correlate those.

MEMBER RAO: Thank you.

HEARING OFFICER TIPSORD:

Miss Williams, did you have anything else?

MS. WILLIAMS: Just a couple things

about the chart, which is Exhibit 115.

MR. ANDES: I'm sorry. Which chart?

MS. WILLIAMS: Exhibit 115, that chart

that's currently on the little easel. This

chart, these two charts, I should say, two

graphs are found in Attachment 4, is that

correct, to your testimony?

DR. RIJAL: Yes, yes.

MS. WILLIAMS: They're not in

Attachment 5, though, right?

DR. RIJAL: No. It's Attachment 4.

MS. WILLIAMS: Can you just explain

for us the difference between the report in

Attachment 4 and the report in Attachment 5?

DR. RIJAL: The Attachment 4 is the

interim report for the same -- and this was

based on the data that we had for 2004

covered -- we covered 2004 and 2005 data,

yeah.

MS. WILLIAMS: So there's no

difference except that Attachment 5 is a

final version?

DR. RIJAL: The Attachment 5 is a

final report, yes.

MS. WILLIAMS: Of Attachment 4 which

is an interim?

DR. RIJAL: Yeah, yeah.

MS. WILLIAMS: So earlier when you

were asked by Ms. Meyers-Glen about your

definition of the dry weather and whether it

was used anywhere else, was it used in both

Attachment 4 and Attachment 5?

DR. RIJAL: It was not used in

Attachment 4. It was used in Attachment 5.

Attachment 4 was interim report.

HEARING OFFICER TIPSORD: But your

definition of dry weather that you used for

the purposes of the final report

Attachment 5, was that the same definition

for dry weather that you used when you did

the interim report which is Attachment 4, or

did you change your definition of dry weather

between the interim and final report?

MR. ANDES: Let me see if I can

clarify, because we're talking about one

definition for the 145 days of rainfall.

HEARING OFFICER TIPSORD: I'm not

talking about --

MR. ANDES: You're talking about --

HEARING OFFICER TIPSORD: I'm talking

about the sampling that you classified as dry

weather which is two days before and one day

after no rain event, you said that that was

only used in Attachment 5. I believe

Ms. Williams' question, since Attachment 4 is

the interim report, did you use the same

definition in the interim report that you

used in the final report to classify your

samples as dry weather samples with no rain

two days before and no rain one day after?

DR. RIJAL: Yeah. We used the same

definition.

HEARING OFFICER TIPSORD: Was that

what you were getting to, Miss Williams?

MS. WILLIAMS: Yes. I thought she

said no.

HEARING OFFICER TIPSORD: She did say

no. That's why I -- yes.

MS. WILLIAMS: But you meant to say

yes?

DR. RIJAL: Yes. Thanks.

MS. WILLIAMS: And can you explain to

us -- the title to these figures starts with

estimated fecal coliform densities downstream

of the North Side and Calumet plants. Could

you explain why these are estimated?

DR. RIJAL: We tried to -- it was

based on the actual level, but we came up

with the predicted level that would -- that

will be observed downstream of the plant. We

had a regression equation so -- which is

described in the report, in the interim

report. So it was based on the regression

equation.

MS. WILLIAMS: Okay.

DR. RIJAL: To estimate the FC levels

in the North Side and the South Side.

MS. WILLIAMS: When we look at the

left-hand column of those -- the curves, do

they represent the actual data? Do you start

with the actual data there on these charts

and then estimate?

DR. RIJAL: Yeah, it estimates the

fecal coliform die-off rate, yes.

MS. WILLIAMS: So when you show the

circles --

DR. RIJAL: That's the --

MS. WILLIAMS: Those are actual

numbers?

DR. RIJAL: Is that -- yes.

MS. WILLIAMS: Or are those estimated?

I'm sorry. The left most circles of the two

that -- you may have understood what I meant,

but I probably wasn't clear.

MR. ANDES: I think we're going to

have Dr. Dennison answer that question.

MR. DENNISON: On Figures 2 and 3 the

circles are actual data.

HEARING OFFICER TIPSORD: Wait a

minute. Wait a minute.

MS. WILLIAMS: I think you're

confusing us.

HEARING OFFICER TIPSORD: I'm sorry,

Miss Williams. This is Figure 1. What we're

looking at is Exhibit 115 is Figure 1.

MR. DENNISON: Is that the only figure

number?

HEARING OFFICER TIPSORD: Yes.

MR. DENNISON: On Figure 1 the --

we're talking about different figures. In

the report --

DR. RIJAL: Which is Attachment 4 of

my testimony.

HEARING OFFICER TIPSORD: Wait a

minute. No. We're talking about

Exhibit 115. The question is about

Exhibit 115. Let's all call it Exhibit 115

and look at Exhibit 115.

MR. DENNISON: Those are not the exact

data on Figure 1. Those are estimated values

at each one of those miles downstream from

the reclamation plants.

MR. ANDES: How were those

estimates derived?

MS. MOORE: I didn't hear that.

MR. DENNISON: The estimates were

derived from the actual data. The -- from

data that were -- from the north wet and

north dry and north wet minus dry, the north

area and from the south wet and south dry and

south wet minus dry in south area.

MR. ANDES: So help me understand.

When we're talking about the top curve of wet

and the bottom curve of dry, those are based

on actual data?

MR. DENNISON: Yes.

MR. ANDES: And the middle curve which

is one minus the other.

MR. DENNISON: That is --

MR. ANDES: A subtraction.

MR. DENNISON: Subtraction of the top

curve from the bottom curve.

MR. ANDES: And the lines in between

the data points are estimates based on

regression equation; is that right?

MR. DENNISON: They're estimates based

on the regression equation.

MS. WILLIAMS: So you said the circles

are actual data?

MR. DENNISON: Those are -- the

circles are data calculated from the

regression equations.

MS. WILLIAMS: Right. So they're

estimates, also, right? The circles are also

estimates?

MR. DENNISON: Yes. On that Figure 1.

MR. ANDES: Based on data.

MR. DENNISON: The lines, the

estimates are based on actual data.

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: Is the total discharge

amount from the wastewater treatment plants

the same every day?

DR. RIJAL: What do you mean by

discharge? The flow or?

MR. HARLEY: Yeah, the volume of

wastewater that's discharged. Is it the same

every day?

DR. RIJAL: It may fluctuate, but

average flow will depend upon the weather

condition, dry or wet weather.

MR. HARLEY: Would you expect that

during wet weather events the flow through

the wastewater treatment plant would be

greater?

DR. RIJAL: Greater in what, compared

to the average flow?

MR. HARLEY: Compared to the average

flow or the flow you would have during dry

weather.

DR. RIJAL: I don't know.

MR. HARLEY: So the total effluent

variation on a day-to-day basis was not a

part of your analysis?

DR. RIJAL: We don't do kind of daily

monitoring of fecal coliform levels from our

effluent, so the levels actually was in

between like 10 to maybe 15,000 fecal

coliform will fluctuate within that range.

MR. HARLEY: Could there be a wet

weather event which did not overwhelm the

system causing a CSO overflow, but

nonetheless led to much greater amount of

water being directed through the wastewater

treatment plant?

DR. RIJAL: I think I will not answer

that because the efficiency of the wastewater

in the design and how it gets treated, I

think someone else will answer that from the

District. But I think the final effluent

limits will be within that range, and we do

have some data from last week discharges and

the number doesn't seem to be that high.

MR. HARLEY: On any given day, how can

you give an opinion about the relative

contribution of the wastewater treatment

plants to fecal coliform levels in the

receiving water if you don't know what the

exact levels are on that day?

DR. RIJAL: We are comparing the

levels with the ambient levels, too. So we

are looking at the upstream ambient levels

and the out, you know, outfall, downstream

levels. So we are comparing those two

levels, yeah.

MR. HARLEY: But how do you account

for the variation that can occur from day to

day at any individual sewage treatment plant?

DR. RIJAL: You know, in this study

here, we are looking at the overall trend

that takes place, that took place between

2004 to 2006, and upstream and downstream of

the North Side and the Calumet plants.

MR. HARLEY: One last question: So

you can have a day when the wastewater

treatment plant was discharging wastewater

with a higher level of fecal coliform or you

could have a day where wastewater treatment

plant was discharging lesser amounts of fecal

coliform? Just to be sure that the record is

clear on that question.

DR. RIJAL: As I mentioned, it could

range between 10,000 to 40, 50,000 of fecal

coliform levels per 100 mL, yes.

MR. HARLEY: And you don't know if the

fact that there was rain, a rainy day the way

that you define it for purposes of your

testimony corresponds to whether there is

more or less wastewater being discharged on

that day -- on any particular day?

DR. RIJAL: You know, as the

engineering design of wastewater is to treat

the water whether it rains or, you know, it's

a dry period. So the final effluent quality

would remain the same. There may be a little

bit of fluctuation in the FC levels, but the

contribution from the plant outfall, as we

see in our results following the rain event,

you don't see a sporadic increase in the FC

levels in the downstream of the plants.

MR. HARLEY: But you account for that

by saying, well, it rains?

DR. RIJAL: Yes.

MR. ANDES: She said she doesn't see

an increase downstream of the plant, and

you're saying she accounts for that by saying

it rained. I'm not sure I understand the

question you're asking her.

MR. HARLEY: I asked and she answered,

and I think the record will speak for itself

whether or not it was a good question.

MS. DEXTER: Can I ask a quick

follow-up? The data underlying this, is this

data from 2004? I think you just said it was

2004 through 2006.

DR. RIJAL: 2004 to 2005. Is that

correct or --

MR. DENNISON: 2004 for that figure,

2004.

DR. RIJAL: 2004 data, yeah.

MS. DEXTER: Only?

DR. RIJAL: Yes.

MS. DEXTER: And can you explain to me

why the graph starts at five miles downstream

from the outfalls?

DR. RIJAL: You know, if you look at

the graph from the table, we have collected

samples from three to four miles, so I guess

is that -- does this help you to get --

MR. DENNISON: It's an arbitrary

decision.

DR. RIJAL: Arbitrary decision, yeah.

So that's why I mentioned earlier it's an

estimated FC.

MS. DEXTER: So you didn't find it

relevant to see what the difference between

these two things is the first five miles

downstream of the --

DR. RIJAL: Yes.

HEARING OFFICER TIPSORD:

Miss Williams, we're back to you.

MS. WILLIAMS: I might be done. Do

you have any explanation -- one last

question: Do you have any explanation why

these curves look so different on these

charts for the north area and the south area?

DR. RIJAL: The data, you know, we

have lower FC levels south area, and I don't

know. The number is the number we get from

that location, yes.

MS. WILLIAMS: And the Stickney plant

was not included in these studies?

DR. RIJAL: No.

MS. WILLIAMS: That's all I have.

HEARING OFFICER TIPSORD: Is there

anything else for Dr. Rijal? Thank you very

much, Dr. Rijal. We'll move on to, is it

Adriana? Adrienne?

MS. WILLIAMS: I'd like to have some

discussion off the record before she comes.

HEARING OFFICER TIPSORD: Sure. Off

the record.

(Off the record.)

HEARING OFFICER TIPSORD: Back on the

record.

(Witness sworn.)

HEARING OFFICER TIPSORD: And do we

have a copy of her testimony?

MR. ANDES: Sure we do.

HEARING OFFICER TIPSORD: We will mark

Miss Nemura's testimony and attachments as

Exhibit 116 if there's no objection. Seeing

none, it's Exhibit 116, and we will start

with IEPA and their questions. Some of these

questions may be reserved on the record for

discussion later on when we talk about

aquatic uses.

MS. WILLIAMS: Good afternoon,

Ms. Nemura. Can you start with Question

No. 1 that we've prefiled. In what areas do

you consider yourself an expert?

MS. NEMURA: Evaluating pollutant

sources and their impacts on watersheds and

waterways, and that includes sources of

bacteria and nutrients, particularly for

combined sewer overflows. I also consider

myself an expert in development of long-term

control plans and review and revision of

water quality standards.

MS. WILLIAMS: When you say review and

revision of water quality standards, does

that cover the gamut of toxics, nutrients?

Would you limit that in any way?

MS. NEMURA: I would limit that to

bacteria and nutrients.

MS. WILLIAMS: Not so much in the

toxics or metals?

MS. NEMURA: Correct.

MS. WILLIAMS: Your testimony

discusses primarily, I believe, wet weather

water quality standards; is that correct?

MS. NEMURA: Correct.

MS. WILLIAMS: What would you propose

to the Board as a wet weather exception?

MS. NEMURA: I don't know what that

would look like for the CAWS.

MS. WILLIAMS: But you're recommending

that one be contained in the final outcome of

this rulemaking?

MS. NEMURA: I'm recommending that if

the Agency chooses to propose uses or propose

different water quality standards for the

CAWS which consist of both uses and criteria,

that they should consider the differences

between dry weather and wet weather

conditions and whether those uses are

attainable under all conditions.

MS. WILLIAMS: I'm assuming that

you're aware that Agency has not proposed

ambient criteria for recreational uses at

this time, correct?

MS. NEMURA: Correct.

MS. WILLIAMS: So would there be a

need for wet weather exemption in that case?

MS. NEMURA: As I --

MS. WILLIAMS: Or consideration of --

I'm sorry.

MS. NEMURA: As I said, if the Agency

is proposing changing the water quality

standards for the waterways, they need to

establish attainable uses and associated

criteria to protect those uses.

MS. WILLIAMS: What are the uses

existing?

MR. ANDES: You're talking in the

legal sense, legal sense of an existing use

or?

MS. WILLIAMS: Yes.

MR. ANDES: She's not a lawyer.

MS. WILLIAMS: I'm talking in the

sense of her expertise on revision of water

quality standards which is a component of

that is designating uses, correct?

MS. NEMURA: Correct.

MS. WILLIAMS: And when you designate

uses, isn't it also correct that you must

designate them for attainable and existing

uses?

MS. NEMURA: The State is not allowed

to remove an existing use. However, in the

terms of combined sewer overflows, I

understand that Chicago's CSOs were present

before 1975.

MS. WILLIAMS: Okay.

MS. NEMURA: And that has been

addressed in the context of U.S. EPA has

indicated that it is appropriate to -- or it

can be appropriate to modify the use because

the CSOs were there before 1975, and, hence,

the use before 1975, whatever it was, was

being impacted by CSOs and associated water

quality CSOs. So the existing use issue has

been dealt with by U.S. EPA in the context of

CSOs.

MS. WILLIAMS: And your understanding

is they've dealt with it how?

MS. NEMURA: That they have clarified

that they recognize that it's okay for states

to modify the uses to reflect the fact that

there are CSO impacts and that to say we

can't reflect that because somehow we're

removing an existing use, that that's not

applicable.

MS. WILLIAMS: And explain what you

mean by modify the uses in this context.

MS. NEMURA: EPA has guidance that

they developed in 2001 that specifically was

developed to assist states and communities in

developing long-term control plans and

conducting review and revision of water

quality standards as long-term control plans

were being developed because they recognize

that combined sewer overflows -- and the CSO

policy recognizes this, too, that because of

the combined sewer overflows which were --

the systems were designed to overflow at some

point in time when there was excess wet

weather, that there would be a need to

potentially review and revise the water

quality standard.

MS. WILLIAMS: Do you provide a

citation in your testimony to the 2001

guidance you're referring to right now?

MS. NEMURA: Yes.

MS. WILLIAMS: Can you point it out to

us? I know you say U.S. EPA 2001 in quotes,

but I'm not sure I found a more specific

citation.

MS. NEMURA: On Page 9, the 6th

reference.

MS. WILLIAMS: I don't have a page 9.

Let's start there.

MR. ANDES: In her testimony?

HEARING OFFICER TIPSORD: Yes. I only

have a Page 8.

MR. ANDES: It's right after the

signature page. Attachments and references.

MS. WILLIAMS: Thank you. I do have a

Page 9. I apologize.

Just maybe for the record we

can read in the number of that document if

you don't mind. It's EPA document

EPA-833-R-01-002. I'm going to skip over

some of Question 2 that I think is targeted

to aquatic life.

Question 3 I'll just read it:

Does MWRDGC want to submit a UAA with its

long-term control plan?

MS. NEMURA: I don't know.

HEARING OFFICER TIPSORD: Miss Nemura,

you need to remember to speak up. You're

talking all the way to the back of the room

and all of us, too.

MS. NEMURA: I don't know.

MS. WILLIAMS: When you were referring

in your previous answer to U.S. EPA guidance,

is that what the guidance refers to,

submitting a UAA as part of a long-term

control plan in order to modify uses?

MS. NEMURA: That's one option that

EPA identifies in that guidance document.

MS. WILLIAMS: Are there any other

options?

MS. NEMURA: There are.

MS. WILLIAMS: Can you go through them

for us?

MS. NEMURA: There is a watershed

approach in which the community works with

other contributors to pollution to look at

cost-effective reduction of all the sources

as opposed to just the CSOs. There are

variances.

MS. WILLIAMS: When you say the --

let's go back to the first one. When you say

the community, you mean the municipality

or --

MS. NEMURA: The CSO community.

MS. WILLIAMS: -- utility that --

Sorry. Why don't you repeat that.

MS. NEMURA: The CSO community.

MS. WILLIAMS: Okay. It doesn't

discuss Clean Water Act designated entities

performing that watershed analysis, correct?

MR. ANDES: What do you mean Clean

Water Act designated entities?

MS. WILLIAMS: I mean state agency --

agencies like Illinois EPA that are

administering the Clean Water Act within the

state, it's looking more at local

governments; is that correct?

MS. NEMURA: I don't know that I would

say that.

MS. WILLIAMS: Okay. If you disagree,

explain how you would say it.

MR. ANDES: Who does -- Who does those

analyses under that document? Who are the

possible parties?

MS. WILLIAMS: And we're talking

about right now about the watershed approach,

just so you understand that.

DR. RIJAL: Well, one option under the

watershed approach is total maximum daily

loads, and TMDLs can be performed by state

agencies, they can be performs by third

parties.

MS. WILLIAMS: I just want to be -- so

then we start with the long-term control plan

with the UAA as option one that you've

highlighted. And then the second one would

be a watershed approach which could include,

which -- a TMDL could be one version of that.

What would be -- Are there any other versions

of that approach?

MS. NEMURA: There are.

MS. WILLIAMS: Could you explain them

for us.

MR. ANDES: Do you want her to explain

the whole EPA document?

MS. WILLIAMS: Sure.

MR. ANDES: Go ahead.

MS. WILLIAMS: I just want her to give

a list of -- I mean are there 20 approaches?

I would think it's a fairly -- we'll get --

this won't take all night, right?

MR. ANDES: It's a complicated

document.

DR. RIJAL: It depends on how specific

you want to be.

MS. WILLIAMS: TMDL is not the only

kind so I just want to understand what other

types besides a TMBD could be.

MS. NEMURA: For example, the

Sanitation District No. 1 of Northern

Kentucky so embarking on a watershed approach

for addressing its sewer overflows. And

under that approach, they propose incremental

controls that could include controls on other

sources every five years so they develop a

watershed plan that says here is the controls

that we're going to take on the next five

years, we work with these other parties and

then they implement those controls and then

they reassess the situation and then they go

back and they come up with a revision to

those five-year plans and make incremental

progress towards attainment of the water

quality standards.

MS. WILLIAMS: Then the third item for

the variance, right -- I interrupted you as

you were going down the list. So you have

long-term control plan, watershed approach,

variance. Is there anything you want to

explain about how a variance would work in

this context?

MS. NEMURA: A variance is -- a

general option under the Clean Water Act, and

the permittee and the regulatory agencies

agree on an evaluation of factors, very

similar to those that are used for use

attainability analysis. And in that instance

they agree not to change the water quality

standard, but they recognize that the

permittee can't implement controls within a

specified short time frame, so they allow

that discharger to have a variance from

meeting the water quality standards.

MS. WILLIAMS: And is there a

limitation to the maximum time frame for a

variance?

MS. NEMURA: That depends on who you

talk to.

MR. ANDES: Let me ask you, in federal

guidelines is there any limitation on how

many variances can be granted?

MS. WILLIAMS: No. That was not my

question, no. On any given variance, how

long can that variance last, not whether can

it be extended, but how long can the variance

last under the Clean Water Act or this U.S.

EPA guidance in your understanding of that?

MS. NEMURA: I'm not sure about the

specifics.

MR. ANDES: We can provide that.

MS. WILLIAMS: Right. But okay. That

would be helpful if you provide that. And

also if you could just answer the question

that in your understanding they can't be --

they must be time limited in some form,

correct, or you don't know that either?

MS. NEMURA: They are time limited in

the case of the Charles River in Boston.

There was a memorandum of, I don't know

whether it's understanding or agreement, that

was signed that offers consecutive variances.

MS. WILLIAMS: Is there any other

categories? You've listed three categories.

MS. NEMURA: There's also revisions to

water quality standards that EPA has

identified as appropriate.

MS. WILLIAMS: Any others? Okay.

Would you say that revisions to water quality

standards would be the category of those

examples applicable to what we're doing here?

MS. NEMURA: I was specifically

referring to revisions such as CSO

subclasses, such as high flow suspensions,

other options.

MS. WILLIAMS: I'm just trying to

understand how any of these options are

applicable to this proceeding.

MS. NEMURA: Was that a question?

MS. WILLIAMS: I take it -- if I take

it as a -- yes. How are any of these options

applicable to these proceedings? If we take

it as a given that the district had asked for

some kind of variance where they could do

their own UAA as a controlled plan. But as

far as this proceeding, what is your -- when

you say the Agency should consider these

options, what options at this proceeding

would be appropriate?

MS. NEMURA: I would think that the

Agency would want to review all of their

options and work with the CSO community and

other stakeholders to identify an appropriate

approach that recognizes that this is what

would be attainable under wet weather

conditions.

MS. WILLIAMS: I think the Agency

would like to look at all its options, too.

That's why I'm trying to understand how that

would work in this context.

It seems you've identified

that they haven't been complete enough. If

you're not going to make a specific

recommendation to the board for a change, I'd

like you to make a very specific

recommendation about what you think is

missing here.

MS. NEMURA: I think what's missing is

that in the proposed revisions to the water

quality standards, that the Agency has

proposed that the designated use be

incidental contact recreation or noncontact

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recreation.

MS. WILLIAMS: Or also isn't there

also nonrecreational use?

MS. NEMURA: Yes.

MS. WILLIAMS: Okay.

MS. NEMURA: And in saying that this

is what the uses should be for the waterways

that by not -- that by proposing those uses,

the Agency should be confident that those

uses are attainable under all conditions. In

the proposal or in the rulemaking, the Agency

states that they do not believe that proposed

uses are attainable during wet weather, so

I'm confused in that the proposed standards

don't reflect the highest attainable use

which is what the UAA is supposed to

determine.

MS. WILLIAMS: So should we only be --

should the use be set at the lower level, at

a lower -- I'm not saying this clearly.

I'm assuming you're recognizing

that in dry weather there's a higher

attainable use then, correct? I mean would

you agree that there's a higher attainable

101

use in dry weather for recreation? We're on

recreation today.

MS. NEMURA: When I prepared for this

testimony that was not something that I

specifically concluded.

MS. WILLIAMS: And would you say that

you also specifically did not conclude that

that they're not attainable? Are you relying

only on the Agency statements to conclude

that they're not attainable?

MS. NEMURA: During wet weather?

MS. WILLIAMS: Yes.

MS. NEMURA: No.

MS. WILLIAMS: What are you relying on

to make that conclusion?

MS. NEMURA: I'm relying on the

District's reports which include studies

conducted under the North Side facilities

planning process and studies conducted

specifically for the use attainability

analysis.

MS. WILLIAMS: But you didn't look at

those in the context of dry weather and in

the context of wet weather?

102

MS. NEMURA: My purpose in preparing

my testimony was that experience with CSOs

and long-term control plans and water quality

standards, that if the State is proposing to

revise the water quality standards for the

waterways, that wet weather needs to be

considered in those revisions.

MS. WILLIAMS: Can you define wet

weather for us as you're using the term?

MS. NEMURA: I'm using the term in the

context of CSOs occur during wet weather.

And combined sewer systems were specifically

designed to overflow during wet weather. And

the CSO policy recognizes that, yes, CSO

communities need to reduce the frequency and

volume of CSOs, but to try to expect

communities to completely eliminate CSOs is

quite challenging and is very site specific.

So a definition of wet weather in context of

CSOs is different for each community and the

associated site-specific conditions where

those dischargers -- or where those CSOs

discharge to.

MR. ANDES: If I can follow up on

103

that. When you're talking about wet weather,

are you talking not specifically about when a

wet weather source is discharging, but rather

the overall impacts of wet weather sources on

the uses?

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

what she said at all. Is that what you said?

MS. NEMURA: Well, it --

MS. WILLIAMS: I thought you said when

CSOs are impacting the system.

MR. ANDES: Impacting the system.

That's what I was asking about. It's not

just when they're discharging.

MS. NEMURA: Right. When CSOs are

impacting the system.

MS. WILLIAMS: Not just when they're

discharging. How are they impacting the

system when they're not discharging. Maybe

you need to explain that to me.

MS. NEMURA: We've heard -- the

District has testified in various studies

that have been produced, and it's recognized

that when CSOs discharge, that the effects of

that CSO can occur for several days after the

104

discharge.

MS. WILLIAMS: I'm sorry. So you mean

during and after as the effects continue on?

MS. NEMURA: Correct.

MS. WILLIAMS: Okay. You're not just

referring to -- what I guess I'm getting at

is I think your answer is pretty clear that

your definition of wet weather is not getting

just rain events or nonsource running off

during rain. You're focussing on CSO impacts

to the system?

MS. NEMURA: Correct.

MS. WILLIAMS: Thank you.

MR. ANDES: If I can follow up on

that. Are you talking about more than just

CSOs, but rather other wet weather sources as

well?

MS. WILLIAMS: I think she just said

no, she's not.

MR. ANDES: And I don't think she

understood the question.

HEARING OFFICER TIPSORD: Let him ask

the question.

MS. NEMURA: For the waterways there

105

can be wet weather impacts that -- and even

if all the CSOs were eliminated, there would

still be wet weather impacts. And because of

the unique nature of the waterways in which

it is operated for flood control, I think

that would have to be considered in the

definition of wet weather.

MS. WILLIAMS: Is that part of your

definition then you're saying here?

MS. NEMURA: I don't have a definition

of wet weather for the waterways and for the

Agency. What I'm saying is there needs to be

some consideration of the nature of the

waterways and how it's impacted by wet

weather, and that was absent in the proposed

rulemaking.

MS. WILLIAMS: So you've testified

that you don't believe the uses designated by

the Agency are attainable, is that an

accurate summary, in wet weather?

MS. NEMURA: I don't believe they're

attainable under all conditions.

MS. WILLIAMS: Okay. I'm referring

only to recreational uses at this point, the

106

three that we talked about. And -- well,

actually, I shouldn't say that. Would that

include the nonrecreational use that's

designated. When you say you don't think

they're attainable under all conditions, is

that limited to the incidental recreation and

noncontact recreation, or does it also

include nonrecreational use?

MS. NEMURA: Yeah. I didn't look

specifically at the noncontact recreation.

MR. ANDES: Or the non --

MS. NEMURA: Nonrecreation.

MS. WILLIAMS: What did you look at?

MS. NEMURA: I looked at the

incidental contact and the noncontact

recreation.

MS. WILLIAMS: And what do you see --

And you see no difference between the

incidental and noncontact in your

conclusions? It's the same conclusion?

HEARING OFFICER TIPSORD: Deb, we're

really losing you. Sorry.

MS. WILLIAMS: I just wanted to

understand if she's including the same that

107

during certain periods the noncontact

recreational use is also not attainable.

MS. NEMURA: In the proposed

rulemaking, the Agency acknowledges that the

proposed uses can't be met during wet weather

and that even after TARP is fully operational

that they may not be able to attain uses

during wet weather and that was the basis for

my opinion.

MS. WILLIAMS: I think I asked this

question already. Was that the only thing

that you're basing your opinion on --

MS. NEMURA: No.

MS. WILLIAMS: -- the Agency's

statement of reason, and in that case I would

understand. You said you were basing it on

your own review of the District's reports.

MS. NEMURA: Right. But your specific

question was whether, if I understood it

correctly, was whether I was distinguishing

between the two proposed uses. And without

having criteria associated with those two

uses which could be different or they could

be the same, I don't know how to answer your

108

question.

MS. WILLIAMS: Okay. That seems to

make sense to me that that's a difficult

question to answer without numeric criteria

to protect these different uses, right? I

mean you would agree with that?

MS. NEMURA: It's difficult for me to

answer your specific question whether one of

those uses is attainable and one is not.

That depends on the criteria that the state

would associate with those uses.

MR. ANDES: If I can follow up on

that. A couple questions. Would it

ordinarily be the case when the state of

developing water quality standards they

determine uses and attach appropriate

criteria to them?

MS. NEMURA: Yes. And in the case of

recreational uses, the typical approach is

five to ten times the primary contact

recreation criteria.

MR. ANDES: And in terms of the

question asked earlier about if it's only in

use why does it matter if it's attainable

109

in wet weather because there's no criterion.

Can you clarify the concept of uses have to

be attainable.

MS. NEMURA: Yes.

MR. ANDES: And what consequences can

happen if you designate a use that's not

attainable?

MS. NEMURA: Well, in getting to the

use -- the whole use attainability analysis

and the purpose is to identify the highest

attainable use. An excellent example of that

is the Chesapeake Bay. And under the

Chesapeake Bay evaluation, the UAA that was

done, question was could they meet the

default dissolved oxygen criteria in the bay.

So they developed the models of the system

and they ran the models and they determined

that --

MS. WILLIAMS: This is an aquatic life

use example that you're giving, right?

MS. NEMURA: It doesn't -- it still

helps illustrate how highest attainable use

is determined.

MS. WILLIAMS: But the example that

110

you -- and I don't -- I mean I want to let

her answer, but the examples that you gave

about U.S. EPA letting you diverge from

existing uses --

MR. ANDES: That's not what she said.

MS. WILLIAMS: Is only applicable

to -- I'm not -- really I'm actually not

trying to mischaracterize. But you are

saying there's something very different about

recreational uses from CSO impacts, correct?

HEARING OFFICER TIPSORD: You know

what, though, we have a question on board

right now. Let's let her answer this

question and -- his question, and then you

can clarify that. But I think if we start

asking questions before she's answered a

question we're going have real difficulties.

Continue.

MS. NEMURA: Okay. So with the

Chesapeake Bay, they had the dissolved

oxygen, it wasn't meeting the default

criterion. So they ran their models and they

looked at what was feasible in terms of

limited technology. And they determined that

111

even with limited technology that they could

not achieve the default criterion. At the

same time they gathered information on the

type of fish and aquatic life that were

present in the Bay and what were the

dissolved oxygen criterion that were needed

to protect those species. And they segmented

the bay into five different zones and adopted

criteria that could specifically be met when

the limited technology was applied.

So in that manner they

established the appropriate aquatic life uses

and the appropriate numeric criteria to

protect those uses. The same could be said

for developing appropriate recreational use

criteria in that you would -- you would look

at your system, you would look at what is

feasibly attained -- attainable, and if you

could not attain the recreational use of

noncontact or incidental recreation under all

conditions, then you should have different

uses and associated criteria for those

periods.

MS. WILLIAMS: Did they decide they

112

would be protecting different types of

aquatic life then in this example that you're

giving?

MS. NEMURA: Yes.

MS. WILLIAMS: Why don't I show --

MR. ETTINGER: I'll clarify that. On

the aquatic life, that was cut down

geographically, right?

MS. NEMURA: Yes.

MR. ETTINGER: So you weren't

expecting an oyster to live with lower

dissolved oxygen from levels --

THE COURT REPORTER: I can't hear you.

MR. ETTINGER: You weren't expecting

an oyster to live with different DO levels

during part of the week and another part,

versus another part of the week in the

Chesapeake Bay model?

MR. ANDES: Only on Wednesdays.

MS. NEMURA: The criteria -- the

dissolved oxygen criteria account for

frequency magnitude and duration of impact.

So I'm not sure how to answer your question.

MR. ETTINGER: Okay. I think you

113

have.

MS. WILLIAMS: What I'm hearing,

though, is that they concluded criterion

cannot be met and they went in and tried to

refine attainable uses to help with that

problem.

MS. NEMURA: They determined that the

default dissolved oxygen criterion of five,

six milligrams per liter could not be met.

And then they also looked at the different

habitats within the Chesapeake Bay developed

the appropriate numeric criteria to protect

the species that were within those habitats,

and then they also looked at what was

attainable with limited technology. And all

that sort of came together in the UAA.

MS. WILLIAMS: And is there a

particular UAA factor they invoked in this

process?

MS. NEMURA: They invoked several.

MS. WILLIAMS: Which ones?

MS. NEMURA: They invoked the human

cause condition, and I would have to go back

and see if there was more.

114

MR. ANDES: We can provide that.

MS. WILLIAMS: That would be helpful

if you provided that later. I would like

to -- rather than reading it into the record,

but I can do that as well, I would like to

show you a section from the Agency's proposal

to the Board. And it's the definition of

incidental contact.

HEARING OFFICER TIPSORD: Deb, it's

the definition of?

MS. WILLIAMS: Incidental contact

recreation, and it's the Section 301282. I

can read it also, but I think it might be

easier maybe if you read it into the record

so that you can look at it and also the Board

will know what we're talking about.

MS. NEMURA: Incidental contact

recreation means any recreational activity in

which human contact with the water is

incidental and in which the probability of

ingesting appreciable quantities of water is

minimal, such as fishing, commercial boating,

small craft recreational boating, and any

limited contact associated with shore line

115

activity such as wading.

MS. WILLIAMS: Can you explain which

portions of that definition you feel are not

attainable?

MS. NEMURA: I would say that given

that the definition includes human contact,

incidental human contact, that if there was

such incidental human contact with the

waterways under wet weather conditions that

the bacteria levels are sufficiently high

such that there could be an increased risk of

illness.

MS. WILLIAMS: Can you read the

noncontact as well? I'm sorry. You might

have to flip a page.

MS. NEMURA: I have it.

MS. WILLIAMS: Okay.

MS. NEMURA: Noncontact recreation

means any recreational or other water use in

which human contact with the water is

unlikely, such as pass-through commercial or

recreational navigation and where physical

conditions or hydrologic modifications make

direct human contact unlikely or dangerous.

116

MS. WILLIAMS: Is there some part of

that definition that you believe would be

unattainable during certain conditions?

MS. NEMURA: Well, based on Illinois

EPA's statement in the rulemaking, quote, it

is clear that as a result of CSOs during wet

weather, any level of recreational activity

in the waterway is unhealthy during periods

when raw sewage is present. I would have to

say the Agency believes that that's true

under both conditions.

MS. WILLIAMS: So that section doesn't

specifically differentiate either between

incidental and noncontact that you're reading

from?

MS. NEMURA: Well, it says any level

of recreational activity.

MS. WILLIAMS: And are you relying on

anything besides that statement to come to

your conclusion?

MS. NEMURA: I'm relying on my

knowledge of the criteria that we have to

protect recreational uses at the national

level and also the criterion that other

117

states have adopted.

MS. WILLIAMS: For incidental or

secondary contact recreation uses?

MS. NEMURA: Yes.

MS. WILLIAMS: But you don't mean at

the national level of those? You mean at

state levels when you're referring to

secondary contact uses?

MS. NEMURA: It is at the state level,

but U.S. EPA has approved those criteria for

those states.

MS. WILLIAMS: Do you have an opinion

about whether the existing use designations

for these waters are attainable?

MS. NEMURA: You mean the general use

standards?

MS. WILLIAMS: Do you know what

standard is applicable to these waterways for

recreational uses now?

MS. NEMURA: Right now there is -- the

current standards do not include -- I haven't

looked at that.

MS. WILLIAMS: That's fine. Have you

taken into account in forming your opinion

118

unattainable uses during wet weather,

improvements from the tunnel and reservoir

project?

MS. NEMURA: I have not specifically.

MR. ANDES: Are you talking about

planned improvements or do you mean future

improvements?

MS. WILLIAMS: I don't understand the

difference between planned and future. Do

you mean that to mean two different things

or?

MR. ANDES: No, I don't.

MS. WILLIAMS: Planned future. Yes.

I am referring to future improvements in the

wet weather conditions in the CAWS.

MS. NEMURA: Can you restate your

question, please.

MS. WILLIAMS: Does your opinion about

the attainable uses for recreational purposes

take into account the improvements during wet

weather conditions from completion of TARP?

MS. NEMURA: That are anticipated with

TARP?

MS. WILLIAMS: Correct.

119

MS. NEMURA: Yes.

MS. WILLIAMS: And you conclude

that -- are you saying then that even after

TARP the designated uses in the Agency's

proposal would not be attainable?

MS. NEMURA: It's my understanding

that there will still be occasions, even

after TARP is implemented, where you may have

a CSO event. So the uses would not be

attainable with those CSO events. And if you

don't recognize that in the standards when

the Agency goes to develop NPDES permit

conditions, when they go to develop a total

maximum daily load if it's needed, there will

be problems in implementing those programs

because of the CSO impacts.

MS. WILLIAMS: How would those

problems occur under this proposal?

MS. NEMURA: Because this proposal

basically says that the two designated uses,

or the proposed designated uses are

attainable. And yet part of the proposal

says it's not attainable during wet weather.

MS. WILLIAMS: Right. But how would

120

that play out as a permitting problem in this

case? There wouldn't be a criteria that

wasn't being met, correct?

MS. NEMURA: The use wouldn't be met.

MS. WILLIAMS: The use wouldn't be

met. So how would you deal with the use not

being met without a criteria violation?

MS. NEMURA: I don't know how you

could write a permit when you know that the

discharge could be impairing the use.

MS. WILLIAMS: I guess what I'm

getting at is -- what I'm getting at is this

proposal requires an effluent limit that will

ensure disinfection is occurring. I don't

know beyond that what else could be --

MS. NEMURA: CSOs are permitted,

right?

MS. WILLIAMS: Right.

MS. NEMURA: Every CSO discharge under

an MTDS permit is permitted. It's allowed.

So how can you have an allowable discharge

that you know is going to impair the

designated use?

MS. WILLIAMS: So you think it would

121

have a permitting agency would have to

require disinfection of CSOs under this

proposal. Is that what you're saying?

MS. NEMURA: I don't know what --

MS. WILLIAMS: What else they --

MS. NEMURA: -- what the Agency would

have to require.

MR. ETTINGER: Cut to the -- You're

relying on the basic principle that you can't

issue a permit that will allow or cause or

contribute to a violation water quality

standards, correct?

MS. NEMURA: Right. You can't -- you

can't authorize a discharge if you know that

it's going to impair the use.

MR. ANDES: If I can follow up also.

You talked about the total maximum daily

loads. Am I correct to say those are

developed to a level necessary to attain

water quality standards?

MS. NEMURA: Yes.

MR. ANDES: How would you do a TMDL to

attain a use that the Agency has recognized

can't be attained?

122

MS. NEMURA: I don't know.

MS. WILLIAMS: In your understanding

of reviewing the Agency's proposal, does the

Agency agree with your conclusion that all

existing uses do not have to be protected?

MR. ANDES: You're asking her if the

Agency agrees with her?

MS. WILLIAMS: Where does it say in

the Agency's proposal that existing uses

don't have to be protected? How is that?

MR. ANDES: I don't remember who said

here that existing uses don't have to be

protected.

MS. WILLIAMS: That's what I heard

Dr. Rijal say that U.S. EPA --

MR. ANDES: That's not.

MS. WILLIAMS: -- has recognized that

where CSOs are an issue, existing uses can

be --

MR. ANDES: No. That's not true.

It's not what she said.

MS. WILLIAMS: That's different. It

was not what she said. I understand that. I

just didn't want you testifying that it's not

123

true.

MR. ANDES: It's both, but it's

certainly not what she said.

MS. WILLIAMS: Please explain why I

mischaracterized your testimony for me,

because that's how I understood it, so.

MS. NEMURA: Okay. If you have a CSO

that exists prior to 1975, okay, it's

unlikely that the water quality that existed

before 1975 supported the recreational use.

So, therefore, the existing use was not

recreational during CSO events.

MS. WILLIAMS: So in your

understanding existing use does not refer to

what is occurring for recreational purposes

not also include what is occurring today on

the waterways in terms of recreation?

MS. NEMURA: The same logic applies.

You have a CSO discharge, okay? You have a

CSO discharge, and the use is not -- the

recreational use is not being met during and

after that CSO discharge.

MS. WILLIAMS: Is a CSO discharge an

existing use in your definition? Is that

124

what you're trying to tell us?

MS. NEMURA: No.

MR. ANDES: Let me see if I can help.

And I believe there's some EPA documents that

we can provide that are relevant on this.

But let me ask you this: In terms

of defining what an existing use is, is it

accurate to say that EPA says you can define

the existing use including both the

activities taking place and the water quality

conditions under which they're taking place.

So in a CSO context or wet weather context,

would that mean certain recreational

activities, whether they take -- in defining

it do they take place in the dry weather, do

they take place in the wet weather and those

are two different parts of the analysis?

MS. NEMURA: Correct.

MS. WILLIAMS: Okay. Okay.

MR. ANDES: Does that help?

MS. WILLIAMS: So if recreational use

is occurring during wet weather, is it an

existing use?

MS. NEMURA: It is recreational use

125

that is occurring where the water quality

doesn't support the definition of contact

recreation.

MR. ANDES: So if I can clarify it,

does that mean that you're talking about

canoeing taking place when bacteria levels

are high due too CSOs?

MS. NEMURA: Yes.

MR. ANDES: That's the existing use.

MS. NEMURA: (Nodding head).

MR. ANDES: So would future

conditions, when one is reducing CSO levels

rather than increasing them, would that

impair that existing use?

MS. NEMURA: No. You're not removing

that existing use.

MR. ANDES: In fact, are you

improving?

MS. NEMURA: You're improving

conditions --

MR. ANDES: So that would be allowed?

MS. NEMURA: Yes.

MR. ANDES: Thank you.

MS. WILLIAMS: What would be allowed?

126

MR. ANDES: Changing the use to

recognize that situation.

MS. WILLIAMS: To recognize the

situation.

MS. NEMURA: That water quality is

being improved and it's not taking away an

existing use.

MR. ANDES: And there are EPA

documents and state documents that we'll

provide that relate to that concept.

MS. WILLIAMS: When you say we'll

provide them, do you mean like -- do you mean

tomorrow or do you mean subsequent to the --

MR. ANDES: We'll do the best to get

them here tomorrow.

MS. WILLIAMS: Let's try Question 10.

Page 2, Paragraph 4 of your testimony states

in particular a provision is needed to inform

the public that the waterways should not be

used for recreation when impacted by wet

weather discharges. Please explain how this

recommendation is different than the current

signs posted along the waterway.

MS. NEMURA: I don't have any

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particular knowledge of the signs that are

posted along the waterway. In my opinion, if

the standards are going to be changed, they

need to reflect the highest attainable use so

that water quality managers, permittees,

stakeholders, anybody who reads the water

quality standards is clear that this is what

is expected.

MS. WILLIAMS: I think some of my

confusion or frustration is coming from the

fact that it would be easier for me to

understand your recommendation in this regard

if you could provide specifics as to what

you'd like to see the Board include in this

rule to reflect that. Will it be possible at

all for you to do that?

MS. NEMURA: I think the Agency should

have considered the unique aspects of the

waterways, the wet weather impacts that the

Agency acknowledges that are there, and that

they should have included that in the

proposal --

MS. WILLIAMS: I mean we really think

we did. I'm not trying to testify now. I

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don't see how we can do that without seeing

something from you about what specifically is

not --

MR. ANDES: Are you telling her it's

not agency's obligation to put forward a

proposal that reflects sample uses?

MS. WILLIAMS: I think we have.

That's why we don't --

MR. ANDES: She just cited the

Agency's statement that uses aren't

attainable.

MS. WILLIAMS: Did you give the page?

I think you did.

MS. NEMURA: That's Page 92.

HEARING OFFICER TIPSORD: In the

statement of reasons?

MS. NEMURA: Yes.

HEARING OFFICER TIPSORD: Thank you.

MS. WILLIAMS: I don't think that's --

Did you say Page 92?

MS. NEMURA: Yes.

MS. WILLIAMS: I mean I think the

quote that you provided in your testimony is

in the statement of reasons, but I don't

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think --

MS. NEMURA: I'm sorry. It's Page 45.

MS. WILLIAMS: So let me just -- We

don't need to go around and around about this

anymore. I guess all I can ask is you don't

have a recommendation specifically about

how -- what the Board will come up with

through this proceeding should be different

than what's been proposed by the Agency,

correct?

MS. NEMURA: My recommendation is

consistent with the District's recommendation

in that there is information that is being

collected that will help answer some of these

questions. And that if the Agency is going

to propose a change to the water quality

standards, that the -- it's the Agency that

should determine in consultation with the

impacted parties and other stakeholders what

the highest attainable uses are.

MS. WILLIAMS: But is that the burden

that the Agency has or is the burden in the

UAA to demonstrate that the Clean Water Act

uses are not attainable?

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MS. NEMURA: If you do a use

attainability analysis, the purpose of the

UAA is to establish a highest attainable use.

MS. WILLIAMS: So if we had --

MS. NEMURA: If that information

wasn't present in the UAA and there's studies

underway to help inform that type of

information, then wait until that information

is available in establishing what the highest

attainable use is.

MS. WILLIAMS: So if we had instead

proposed protection of primary contact

recreation in this rulemaking, we would not

have that same burden, correct?

MS. NEMURA: I don't understand --

MS. WILLIAMS: Because we would not be

performing the UAA then, right? We would

just be performing water quality standard

change.

MS. NEMURA: So are you saying that

you would designate a use that you know is

not attainable?

MS. WILLIAMS: I mean we designate

primary contact recreation general use for

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all sorts of water bodies that don't have

sufficient -- that don't even have -- we

don't know if there's recreation occurring.

MR. ANDES: But in this one if you

know that primary is not attainable, would

the Agency designate it anyway in this

regard?

MS. WILHITE: We're not designating

primary --

MR. ANDES: She's proposing exactly

that.

MS. WILLIAMS: I feel the burden is

being shifted here, and I'm trying to

understand what the burden is on the Agency

here as you see it.

MR. ANDES: She just explained it.

MS. NEMURA: Under the Clean Water

Act, it indicates that the purpose of the

UAA, if you're going to change a standard, if

the state is going to change the standard you

need to do the UAA. The outcome of the UAA

could be to upgrade the use, it could be to

keep the use the same, it could be to

downgrade the use and the outcome of the UAA

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which is supposed to be a scientific

objective analysis, is to establish the

highest attainable use.

MS. WILLIAMS: But if --

MS. NEMURA: I understand that eons

back when states were doing windshield

surveys, okay, or in many cases like Missouri

who didn't have bacteria criteria, okay, and

they were sued and they had to adopt

recreational use criteria and bacteria

criteria, okay. They had to do a blanket

designation that all water bodies were

supposed to be primary contact recreation.

What they chose to do is to do UAAs for those

water bodies where they felt that primary

contact recreation was not appropriate. And

in that case, the highest attainable use was

deemed to be either whole body contact B

which is less restrictive than primary, or

secondary contact recreation. And that's the

scientific process that is supposed to be

followed with the UAA.

MS. WILLIAMS: Do you -- I don't think

I asked the rest of this ten. Does the

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District already have a brochure and a

message on their website informing the public

of hazards of recreating on the CAWS?

MS. NEMURA: I don't know.

MS. WILLIAMS: Does the District need

to do more to get this information out to the

public?

MS. NEMURA: I can't speak to the

adequacy of the District's public

beautification program.

MS. WILLIAMS: Do you think that the

Board needs to adopt a numeric criteria for

protection of the attainable recreational

uses in this rulemaking?

MS. NEMURA: I'm not recommending

that.

MS. WILLIAMS: You're recommending

that they do not adopt a numeric criteria --

MS. NEMURA: No. I'm not recommending

that they -- my problem lies in the fact that

you have to establish the appropriate uses,

and then you adopt numeric criteria to

protect those uses. If you haven't adopted

the appropriate designated uses, it's hard

134

for me to suggest to the Board what they

should adopt as a numeric criteria. You have

to do both at the same time, and they both

have to be appropriate.

MS. WILLIAMS: So that's your

testimony. That uses and criteria have to be

adopted at the same time?

MS. NEMURA: My testimony is that if

you're going to adopt a use, you should

also -- you're supposed to adopt the

appropriate use and the appropriate criteria

to protect that use.

MS. WILLIAMS: And would a narrative

criteria meet that definition, meet that

recommendation as you described it?

MS. NEMURA: I don't know how you

would adopt the narrative criteria to protect

a recreational use.

MS. WILLIAMS: Do you know if U.S. EPA

has ever approved a narrative criteria for

recreational use?

MS. NEMURA: I don't know.

MS. WILLIAMS: Do you know if they've

disapproved any?

135

MS. NEMURA: I don't know.

MR. ANDES: Are you aware that EPA has

taken action to establish water quality

standards in states that don't have numeric

standards for bacteria?

MS. NEMURA: I don't believe so.

Missouri is a good example. Missouri had no

recreational uses, and when they adopted

recreational uses, they adopted associated

numeric criteria to go along with those

different use classifications.

MS. WILLIAMS: But you don't --

MR. ETTINGER: Do you know what

numbers Missouri adopted?

MS. NEMURA: I do. But I would prefer

to review the actual water quality standards

before I gave you the wrong number.

MR. ETTINGER: Could they use

indicator species like --

THE COURT REPORTER: Like what?

MR. ETTINGER: -- fecal or --

THE COURT REPORTER: I still can't

hear you.

MR. ETTINGER: Did they use indicators

136

like fecal, enterococci or E. Coli?

MS. NEMURA: They used E. Coli.

MR. ETTINGER: Thank you.

MS. WILLIAMS: One thing that I would

find very helpful with regard to your

testimony references to other states is if we

could supplement the record at some point

with citations to --

MR. ANDES: This is a list of

citations at which I believe you asked for in

one of the questions.

HEARING OFFICER TIPSORD: Question 4.

MS. WILLIAMS: I think I skipped it.

HEARING OFFICER TIPSORD: We will mark

this as Exhibit 117 if there is no objection.

Seeing none, this is Exhibit 117. And if

this is probably as good a time as any to

break for the evening if we're okay?

MR. ETTINGER: Not quite.

HEARING OFFICER TIPSORD: Okay.

MR. ETTINGER: I object. You didn't

include Missouri here so could you --

HEARING OFFICER TIPSORD: Rather

than --

137

MR. ANDES: Provide a --

MR. ETTINGER: Could you provide the

cite for Missouri tomorrow morning since we

talked so much about it.

MR. ANDES: We'll do our best.

HEARING OFFICER TIPSORD:

Mr. Ettinger, rather than objecting, could

you ask him to supplement and withdraw your

action.

MR. ETTINGER: I objected to

concluding before I asked him to supplement.

Now I've asked him to supplement.

HEARING OFFICER TIPSORD: Okay. We'll

break for the day. We're at 9040 tomorrow.

(At which time the

hearing was continued to

September 25, 2008.)

* * * * * *

138

1 STATE OF ILLINOIS )

) SS.

3 COUNTY OF COOK )

I, LAURA MUKAHIRN, being a Certified

6 Shorthand Reporter doing business in the City of

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

8 reported in shorthand the proceedings had at the

9 foregoing hearing of the above-entitled cause. And

10 I certify that the foregoing is a true and correct

11 transcript of all my shorthand notes so taken as

12 aforesaid and contains all the proceedings had at

13 the said meeting of the above-entitled cause.

___________________________

LAURA MUKAHIRN, CSR

CSR NO. 084-003592