ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF:

)

4 WATER QUALITY STANDARDS AND ) R08-9

5 EFFLUENT LIMITATIONS FOR THE ) Rulemaking - Water

6 CHICAGO AREA WATERWAY SYSTEM )

7 AND LOWER DES PLAINES RIVER )

8 PROPOSED AMENDMENTS TO 35 ILL. )

9 ADM. CODE 301, 302, 303 and 304)

TRANSCRIPT OF PROCEEDINGS held in the

12 above-entitled cause at the Will County

13 Courthouse, 14 West Jefferson Street, Joliet,

14 Illinois, on the 17th day of November, 2008, at

15 9:00 a.m.

BEFORE: MARIA E. TIPSORD, HEARING OFFICER,

ILLINOIS POLLUTION CONTROL BOARD

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

312-814-4925.

1 APPEARANCES:

MS. MARIE TIPSORD, HEARING OFFICER,

MS. ALISA LIU, Environmental Scientist,

MR. ANAND RAO, Senior Environmental Scientist,

MR. G. TANNER GIRARD, Acting Chairman,

MR. SHUNDAR LIN,

MS. ANDREA S. MOORE,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

217-782-5544

MS. DEBORAH WILLIAMS,

MS. STEPHANIE DIERS,

MR. SCOTT TWAIT,

MR. ROY SMOGOR,

1 APPEARANCES (cont'd):

ENVIRONMENTAL LAW & POLICY CENTER,

35 East Wacker Drive, Suite 1300

Chicago, Illinois 60601-2110

312-795-3707

MR. ALBERT F. ETTINGER,

MS. JESSICA DEXTER;

BARNES & THORNBURG, LLP,

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

312-357-1313

MR. FREDRIC P. ANDES,

appeared on behalf of the Metropolitan

Water Reclamation District;

ECOLOGICAL MONITORING AND ASSESSMENT,

3206 Maple Leaf Drive

Glenview, Illinois 60026

847-564-9905

MR. IRWIN POLLS.

E X H I B I T S

3 NUMBER

PAGE

4 Exhibit No. 169.......................9

5 Exhibit No. 170......................25

6 Exhibit No. 171......................94

7 Exhibit No. 172.....................104

8 Exhibit No. 173.....................116

9 Exhibit No. 174.....................135

10 Exhibit No. 175.....................158

11 Exhibit No. 176.....................160

12 Exhibit No. 177.....................165

13 Exhibit No. 178.....................175

THE HEARING OFFICER: Good morning,

everyone. My name in Marie Tipsord, and I've

been appointed by the Board to serve as

hearing officer in this proceeding entitled

Water Quality Standards Affluent Limitation

for the Chicago Area Waterway System and

Lower Des Plaines River, Proposed Amendment

to 35 Il Admin Codes 301, 302, 303 and 304.

This is Docket No. RO8-9.

At the table here in the middle is

Dr. Tanner Gerard, he is the board member

assigned to this matter. To his immediate

right is Dr. Shundar Lin, our newest board

member. And to his right is board member

Andrea Moore.

To my left up here is board member

Thomas Johnson. And also at the table right

here is Anand Rao from our technical unit.

This is the seventh set of

hearings. And, actually, I think this is the

20th day of hearing. The purpose of today's

hearing is to continue hearing testimony from

participants, other than the proponent, the

Illinois Environmental Protection Agency.

At the close of hearing on

October 28th, 2008, we had finished with

17 witnesses from the Metropolitan Water

Reclamation District of Greater Chicago. We

will continue with the District starting this

morning with Dr. Charles Melching. If we

have time today, we will then proceed to

Dr. Cutter Makay.

The testimony will be marked as an

exhibit and entered as if read. After

marking the prefiled testimony as an exhibit,

we will then proceed to questions for the

testifier beginning with the IEPA and then, I

believe, the only other person who filed

prefiled questions were the Environmental

Policy Center for Dr. Melching.

Anyone may ask a follow-up

question. You need not wait until your turn

to ask the question.

I do ask that you raise your hand

and wait for me to acknowledge you. After I

have acknowledged you, please state your

name, whom you represent before you begin

your question.

Please speak one at a time. If

you're speaking over each other, the court

reporter will not be able to get your

questions on the record.

Please note that any question

asked by a board member or staff is intended

to help build a complete record for the

Board's decision and not to express any

preconceived notions or bias. We will have a

lunch break today, and we will proceed to

around 4:15, 4:20 so that we can try to be

out of here by 4:30.

With that, Dr. Girard?

MR. GIRARD: Good morning. On behalf

of the Board, I welcome everyone to the

20th day of hearing in this rulemaking. I

look forward to your questions and testimony

today. Thank you.

THE HEARING OFFICER: Mr. Andes, do

you have any exhibits this morning, or are

you going right to testimony?

MR. ANDES: Right to testimony.

THE HEARING OFFICER: In that case,

can we have Dr. Melching sworn in --

(WHEREUPON, the witness was duly

sworn.)

THE HEARING OFFICER: Mr. Andes?

MR. ANDES: Here is a copy of the

testimony.

THE HEARING OFFICER: Thank you very

much.

If there's no objection, we will

mark Dr. Melching's testimony as

Exhibit 168 -- I'm going to double check that

to make sure I have the right number.

Yes, 168. There's no objection?

Seeing none, Dr. Melching's

prefiled testimony is Exhibit 168. And we

can begin with the IEPA and their questions.

DR. CHARLES S. MELCHING,

17 called as a witness herein, having been first duly

18 sworn, was examined and testified as follows:

EXAMINATION

20 BY MS. WILLIAMS:

Q. Good morning, Dr. Melching. I'm

22 Deborah Williams, and I'm here on behalf of the

23 Illinois EPA.

MS. DIERS: Marie, I have that we

should be on Exhibit 169. Because I have 168

as the use attainability analysis.

THE HEARING OFFICER: That's why I

looked, because I thought 168 did not sound

right.

You're absolutely correct,

Dr. Melching's testimony is 169. I didn't

turn the page over. Thank you for keeping me

straight.

So I will correct that. The

prefiled testimony of Dr. Charles Melching is

marked as Exhibit 169.

(WHEREUPON, a certain document was

marked Exhibit No. 169 for

identification, as of 11/17/08.)

THE HEARING OFFICER: Go ahead,

Ms. Williams.

EXAMINATION

19 BY MS. WILLIAMS:

Q. Well, why don't we -- we'll just start

21 with Question No. 1 of our prefiled questions.

In what areas do you consider

23 yourself an expert?

A. Okay.

THE HEARING OFFICER: You're trailing

off again, Deb.

MS. WILLIAMS: Do you need me to

repeat?

THE COURT REPORTER: No.

But it could be louder.

7 BY THE WITNESS:

A. I am an expert in surface water

9 hydrology, water quality modeling and management of

10 streams and rivers. The first two were recognized

11 by my peers, the American Society of Civil

12 Engineers. And I received the 2001 Walter L. Huber

13 Civil Engineering Research Prize for my research on

14 uncertainty and reliability analysis in water

15 resources and environmental engineering, including

16 especially uncertainty in rainfall runoff and stream

17 water quality modeling.

The third is confirmed by my

19 selection as an associate editor in the Journal of

20 Hydraulic Research from 2002 to 2006. And the

21 International Journal of Sediment Research for 2002

22 to the present.

THE HEARING OFFICER: Dr. Melching,

you also need to keep your voice up, as well.

You're trailing off, and I'm not catching the

last of your sentences, so...

THE WITNESS: Okay. Sorry.

All right. I'll go slower and

louder.

THE HEARING OFFICER: Yes, please.

7 BY THE WITNESS:

A. My testimony, with respect to

9 ecological issues, as focused on the physical

10 habitat characteristics of the CAWS, record which my

11 expertise in river hydraulics, in general, and my

12 seven years of modeling hydraulics of the CAWS, in

13 particular, gives me a solid foundation on which to

14 comment. Further, if one is to work in the field of

15 water quality management, one needs to become

16 familiar with ecological indices, such as, the IBI,

17 MBI and other macroinvertebrate indices and QHEI and

18 other habitat indices.

For example, my work as a review

20 team member for the Milwaukee Metropolitan Sewage

21 District Corridor Project and as a member of the

22 technical advisory committee on the regional water

23 quality management plan update for the Greater

24 Milwaukee Watersheds for the Southeastern Wisconsin

1 Regional Planning Commission, required review of

2 ecological data indices. Further, my service on the

3 PhD committees of Dr. Alena Barsoba and Dr. Neil

4 O'Rielly, put me in contact with state of the art

5 in-stream ecology evaluation.

Finally, during my sabbatical in

7 China, my host was interested in developing

8 ecological indices with Chinese conditions. And I

9 reviewed his group's work and guided them to current

10 references from the American literature.

Finally, I covered basic aspects

12 of stream ecology and my course on river engineering

13 taught at Marquette University.

14 BY MS. WILLIAMS:

Q. So if I understand your testimony,

16 Dr. Melching, you're familiar through your work with

17 habitat indices and biological indices.

Do you consider yourself an expert

19 in those indices?

A. I consider myself an expert in

21 physical habitat.

THE HEARING OFFICER: Dr. Melching,

speak to us, not to Ms. Williams. I know

that's hard.

THE WITNESS: Okay.

THE HEARING OFFICER: The acoustics

are bad and we --

THE WITNESS: All right. I'm sorry.

Sorry, Board.

6 BY THE WITNESS:

A. I consider myself an expert in the

8 physical habitat aspects, but --

9 BY MS. WILLIAMS:

Q. Have you ever utilized any of these

11 indices in the field? Have you ever, actually, done

12 any of the measurements using any of the indices?

A. I've only reviewed these indices

14 before.

MR. ANDES: Have you done habitat work

in the field?

THE WITNESS: Yes. But I haven't

calculated the -- how should I say this? I

have calculated QHEIs.

THE COURT REPORTER: But I have, what?

THE WITNESS: I'm sorry, I keep

looking at the question.

23 BY THE WITNESS:

A. But I haven't calculated QHEIs.

THE HEARING OFFICER: Just try to

pretend you're teaching a class and you're

speaking to the back of the auditorium.

THE WITNESS: Okay.

5 BY MS. WILLIAMS:

Q. So you do consider yourself a physical

7 habitat expert?

A. Yes.

Q. What about aquatic life and the needs

10 of aquatic life. Are you an expert on the needs of

11 aquatic life?

A. Only so far as the habitat

13 requirements of aquatic life.

Q. So you feel you are an expert on the

15 physical habitat needs of aquatic life?

A. Yes.

Q. And would that be for both fish and

18 macroinvertebrates?

A. Well, my testimony, primarily, was

20 directed toward fish. Although, when I was in

21 China, I was involved in some of their work on

22 macroinvertebrates.

Q. I believe in your resume or CV it

24 mentions work done on the lower Des Plaines UAA.

1 Can you explain that for us?

A. Can you remind me of which question

3 number that was?

Q. Yes. I believe that is in

5 Question 41.

A. So, basically, for the lower

7 Des Plaines UAA, the Qual to E modeling of the lower

8 Des Plaines River and some of the probabilistic

9 analysis of the water quality sampling data were

10 done by graduate students under my direction. But

11 the students also primarily worked under the

12 guidance of Professor Novatny, who was both a

13 professor of Marquette and president of Aquanova.

Q. Just a second.

Why don't you just explain for me

16 a little bit how that worked on a day-to-day basis.

17 I know Dr. Novatny was employed through Aquanova to

18 perform the lower Des Plaines UAA.

Explain, then, the role your

20 graduate students played in that more specifically.

A. Well, there are two aspects. One was

22 to do the Qual to E modeling dissolved oxygen in the

23 Lower Des Plaines and look at the potential with

24 what could be achieved in terms of dissolved oxygen.

1 The other aspect -- I keep forgetting the Board is

2 here (indicting).

The other aspect was that

4 Professor Novatny had the view that we could take

5 the available data for different constituents and

6 analyze that probabilistically in the probability

7 plots to try to determine the likelihood of

8 exceedance of standards and to compare that to

9 allowable frequencies for those constituents that

10 have a once-in-three-years allowance of going above

11 that standard.

Q. But what was the role of the graduate

13 students and yourself?

A. Well, the graduate students were

15 developing the probability plots and developing the

16 Qual to E model --

Q. And you were -- okay.

And did you have to approve

19 everything?

A. Well, the final approval and primary

21 decision was Professor Novatny's.

Q. Did you make comments --

A. Well --

Q. -- on the project?

A. -- as necessary.

Q. And were those comments incorporated

3 into the modeling?

A. The modeling, yes, but --

Q. Okay.

A. But it was fairly straightforward. We

7 built on previously developed Qual to E model that

8 was done for the District back in the late '80s,

9 early '90s. So we were just updating that, if you

10 will.

Q. And was that earlier model developed

12 by the university or by Aquanova?

A. Well, in fact, the earlier model was

14 developed by CDM for the Water Reclamation District.

Q. I'm going to go to Question 3, which

16 asks for you to explain in more detail the Duflow

17 model, D-U-F-L-O-W model.

A. All right. The Duflow unsteady state

19 water quality model was developed in the Netherlands

20 by a joint effort of the Rikes water staff, National

21 Water Authority of the Netherlands. The

22 International Institute For Hydraulic Environmental

23 Engineering of the Delf University of Technology,

24 the Foundation for Applied Water Management Research

1 in the Netherlands, and, finally, the Agricultural

2 University of Vaganagan.

Duflow was selected for the study

4 for the following reasons. Several options are

5 included in the simulation of water quality,

6 including a sediment flux model. It was compatible

7 with geographical information assistance, is

8 Microsoft Windows based, including a powerful

9 graphic interface, had a low license cost, low

10 computational time and had been successfully applied

11 to many European rivers.

In particular, I've worked with

13 Duflow in the modeling of the Dender River in

14 Belgium. The certain analysis involved hundreds of

15 simulations for a one-year time period with very few

16 computational problems encountered. It's indicated

17 that the model was computation -- which is very

18 important when simulating a complex system like the

19 CAWS.

Finally, because the hydraulic and

21 water quality models are directly coupled, Duflow

22 offered computational advantages over the versions

23 of WASP, Water Quality Analysis Simulation Program,

24 of the USEPA available when this project started in

1 2000. In particular, WASP had to be run separate

2 from its hydraulic model, and the hydraulic model

3 was known to have computational problems when

4 applied to river systems.

For the CAWS, the simulation of

6 dissolved oxygen was done using the Duflow water

7 quality simulation option that adds the Totorro and

8 Fitzpatrick sediment flux model to the WASP 4 model.

9 A constituent interactions in the water column.

The Duflow distinguishes the

11 amount of transported material that flows through

12 the water, bottom materials that are not transported

13 with the water flow, and poor water in bottom

14 materials that are not transported but that can be

15 subject to similar water quality interactions to

16 those from the water colony. Flow movement and

17 constituent transport and transformation are two

18 processes, and constituent transport is defined

19 investigation dispersion.

The following constituents

21 represented as both water and sediment components,

22 are included in the Duflow model, Algo biomass

23 species, suspended solids concentration, total

24 inorganic phosphorous, organic phosphorus, total

1 organic nitrogen as nitrogen, ammonium as nitrogen,

2 nitrate as nitrogen, dissolved oxygen and

3 carbonaceous biochemical oxygen.

A combination of WASP 4 and the

5 deterrent of Fitzpatrick's sediment flux model,

6 represents the state of the art in stream water

7 quality modeling.

Q. Okay, Dr. Melching, a couple of

9 follow-up questions here.

You gave a list of water quality

11 parameters?

A. Yes.

Q. Explain -- well, first of all, does

14 that list include any measures of the bacteria or

15 pathogens?

A. Well, we did add a routine to Duflow

17 to simulate the coliform so it isn't one of the

18 constituents normally included. But the model is

19 written what we call in an open code format that

20 allows you to add routines or change routines as

21 necessary.

So we did add fecal coliform

23 simulation to the model to calibrate that and --

Q. Anything else that was added like

1 that?

A. The only other thing that we added was

3 we made it possible to directly calculate travel

4 times. The model automatically is calculating

5 velocities, and -- because travel time is important

6 for a lot of reasons, we wanted that as a specific

7 output.

And there's even one more small

9 thing we changed too, we changed how reaeration is

10 computed in the model.

Q. I don't think I understand. Please

12 explain how you changed how reaeration is computed?

A. Well, in the standard application of

14 Duflow, reaeration is computed as a function, flow

15 velocity of flow depth as per the equation of -- if

16 I can get this right -- O'Connor and Dobbins. And

17 for the Chicago area waterways, because of the

18 extreme depth, we felt it was necessary to modify

19 that equation a little bit.

Normally it has a single

21 multiplier, we wanted to make that multiplier

22 variable. And this is --

Q. And what would have been the results

24 if you had relied on the model --

A. It would have --

Q. -- as written?

A. It would have overstated the amount of

4 aeration in the surface reaches. For many reaches,

5 the O'Connor and Dobbins relation was used for a few

6 reaches, in particular, the very slow reaches and

7 deep reaches.

Q. Which ones?

A. I'd have to look that up.

Q. Could you do that?

A. In fact, I don't even know that I have

12 that material with me.

Q. Was there a cutoff in terms of depth

14 that you used to decide which reaches?

A. It was more a cutoff that came from

16 the calibration as we observed and measured

17 dissolved oxygen data from the system from the

18 District's data. There were certain areas that the

19 model was -- over estimated dissolved oxygen, and we

20 came to believe that, in those reaches, it may be a

21 function that reaeration was being overestimated.

Q. If we wanted to find out for ourselves

23 which reaches you changed the equation for, how

24 would we find that?

A. It should be in our reports. I sent

2 you all -- and it would be Report No. 18 from

3 Marquette.

MR. ANDES: The document that we're

specifically referring to is -- was an

attachment to your testimony; am I right?

Referred to --

8 BY THE WITNESS:

A. No. It's referred to in my testimony,

10 but it wasn't added as an attachment.

So pretty much --

MR. ANDES: Why don't we read the name

of the report in for the record. We have

this report and a number of other reports

that were cited by Dr. Melching on a disk, so

we can put those into the record.

THE HEARING OFFICER: Thank you.

You're anticipating my next question.

MR. ANDES: Go ahead and read the

title.

THE WITNESS: The title of this report

is Calibration of a Model For Simulation For

Water Quality During Unsteady Flow in the

Chicago Waterway System and Application to

Evaluate Use Attainability Analysis Remedial

Actions.

MR. ANDES: Dated?

THE WITNESS: Dated February 2006.

THE HEARING OFFICER: And that will be

a part of -- let's go ahead and mark it as

Exhibit 170?

MR. ANDES: Yes.

MS. WILLIAMS: Do you know how many

reports are on the disk, Fred?

MR. ANDES: Not offhand.

MS. WILLIAMS: Because I just want

to -- for the record, I just want to

address -- I think we've been guilty of it

possibly and we've had some situations where,

from Fred's disk, maybe not all the files are

actually on all the copies of the disk. So I

think it would be helpful for the record,

going back, if we at least somehow identify

the number of files so that people know if

they have a complete disk.

I mean, obviously, if he doesn't

know, I guess we can't do it here. But in

the future if we're preparing disks --

because I -- is that --

Didn't we find had that some people

had not --

MS. DIERS: Yeah.

MS. WILLIAMS: In one of the disks we

filed some people did not have all the files

on it.

MR. ANDES: That's fine. For the

future we can certainly identify what's on

the disk.

THE HEARING OFFICER: If there's no

objection, we'll mark the other Melching

exhibit's disk as Exhibit 170.

Seeing none, it's Exhibit 170.

(WHEREUPON, a certain document was

marked Exhibit No. 170 for

identification, as of 11/17/08.)

THE HEARING OFFICER: Go ahead.

THE WITNESS: Okay.

20 BY THE WITNESS:

A. So this is coming from Table 313 of

22 this report, which is on Page 57, if anybody wants

23 to look for it later.

Basically, the entire Chicago

1 Sanitary and Ship Canal was modified from the

2 original O'Connor and Dobbins equation. The entire

3 Calumet Sag Channel, Bubbly Creek, the lower reaches

4 of the North Branch, and also the North Shore

5 Channel was reduced. Sort of the upper reaches of

6 the North Branch remained.

The same -- when I say "upper

8 reaches," it's between river mile 41.6 and 39.2,

9 measured from Lockport. And then also river miles

10 35.35 to 37.

The main stem of the Chicago River

12 and the Little Calumet River North, all those were

13 at the original O'Connor Dobbin reaeration.

14 BY MS. WILLIAMS:

Q. Can you repeat for me which ones were

16 kept at the original -- you said the North --

A. Yeah. Basically, you can say the

18 North Branch between river miles 41.6 and 39.2. The

19 North Branch between river miles 37 and 35.5, the

20 Chicago River main stem and the Little Calumet

21 North.

So, basically, from where the

23 Little Calumet connects to Cal Sag Channel back to

24 O'Brien Lock and Damn.

Q. So really, probably, most -- milewise

2 most --

A. Yes.

Q. -- of the system was recalibrated?

A. Correct.

Q. Or the equation was changed. I don't

7 want to put words in your mouth.

A. Recalibrated is fine.

Q. Part of Question 3 asks when the

10 Duflow model was accepted for publication. Has it

11 been accepted for publication?

A. Well, the Duflow approach for the

13 estimation and the duration of storm impacts on

14 in-stream water quality was accepted for publication

15 in the Journal of Water Research, Planning and

16 Management on July 16th, 2008, publication schedule

17 for March 2009.

Q. And that would be not your work, that

19 would be the work -- the original work or this is

20 your work?

A. No, this is the work that Dr. Alp and

22 I did together.

Q. So -- I mean, the question, I guess, I

24 was trying to get at is the changes that you guys

1 have made, were those peer reviewed and published

2 anywhere?

A. Not really. I mean, peer reviewed in

4 the sense that all our reports have been reviewed by

5 the District. Some of our reports were also

6 reviewed by the court because we did some work for

7 the District and the court regarding navigation

8 issues.

Q. I don't know -- I know you explained

10 quite a bit about the model, but I don't know if you

11 really explained to my level of understanding what

12 an unsteady flow water quality was. What does that

13 mean?

A. An unsteady flow model considers the

15 variations in flow, stage, constituent

16 concentrations, loadings, in time, as it simulates

17 conditions for a selected representative period. In

18 the case of the Duflow model for the CAWS, the

19 computations are done at a 15-minute time step using

20 measured flow and stage values at certain gauge

21 boundaries and tributary influence and interpellated

22 from hourly or daily data at other boundaries and

23 in-flow points, including CSOs and water reclamation

24 plants.

Time, series of flow, velocity,

2 state and constituent concentrations are computed

3 every 15 minutes at hundreds of computational

4 points, spaced no more than 1,640 feet apart,

5 including each monitoring point. The results are

6 output at a one-hour time step to reduce

7 computational time while preserving computational

8 accuracy.

The computed velocity between

10 computational points was used to determine the

11 travel time between these points.

Q. And is that the main goal of the

13 model, to determine travel time?

A. No. The main goal of the model is to

15 determine the effects of both dry weather and storm

16 flows on the quality of water in the Chicago

17 waterways. And also on movement of flood flow,

18 hydraulics, through the Chicago -- well, the CAWS.

Q. When you were answering Question

20 No. 3 --

A. Uh-huh.

Q. -- you stated that your work was begun

23 in 2000?

A. Yes.

Q. Can you explain how you came to be

2 involved in 2000, what the goal at that time was?

A. Well, I think the goal at that time

4 was that the District, Mr. Lanyon, was aware that

5 they needed a better management tool for their

6 waterways relative to the old Qual 2 E model I

7 mentioned earlier. I think he was aware of things

8 like TMDLs, and possibly the use attainability

9 analysis we're talking about were coming, and he

10 wanted a tool that could consider the larger

11 dynamics of the system and to specifically look at

12 the storm impacts in a continuous way.

So it was an interest on the part

14 of Mr. Lanyon and Mr. Farnan to develop such a

15 model. And I had worked with Mr. Lanyon when I was

16 in the U.S. Geological Survey on a number of issues

17 around Chicago, and so I was selected to develop

18 this model with my students.

Q. So I assume that explains why in your

20 testimony you talk about using a period in 2001 --

A. Yeah.

Q. -- to develop --

A. Yeah. I mean, particularly with

24 respect to 2001, as the project started, one of the

1 things that we all realized is that there wasn't

2 detailed information on storm loads to the system.

3 So we specifically requested to the District to

4 sample CSOs over storm periods and to sample the

5 major tributaries, the Little Calumet and the North

6 Branch at Albany Avenue so that we had a better idea

7 of the type of constituent loads being brought into

8 the system so we could properly characterize and

9 simulate those events.

Q. On Page 5 of your testimony, it

11 states, "However, research on the CAWS shows that

12 the effect of storm runoff and CSOs on water quality

13 last substantially longer than the hydraulic effects

14 of the storm."

Can you just explain what research

16 you're referring to here?

A. This is the PhD research of

18 Dr. Emre Alp at Marquette.

Q. Doctor who?

A. Emre Alp.

Q. Oh, Mr. Alp. Okay.

A. He was my graduate student.

THE HEARING OFFICER: Could you spell

that name for the record, please?

THE WITNESS: A-L-P.

MR. ANDES: First name?

THE WITNESS: Emre, E-M-R-E.

4 BY THE WITNESS:

A. And it should also be noted that this

6 work that Dr. Alp did was not funded by the

7 District. So the development of the model and

8 application to the UAA and so on, was done with

9 support of the District, but the analysis of storm

10 effects he did, basically, unfunded.

So there was a year that we were

12 not supported by the District, which was a spinoff

13 to create a thesis for him.

14 BY MS. WILLIAMS:

Q. I'm going to show you a document, just

16 to make sure I'm clear, because there's not a date

17 on this document that I can see. But there's a

18 document that's in the record called Evaluation of

19 the Duration of Storm Effects on In-stream Water

20 Quality by Emre Alp and Charles S. Melching. Is

21 this what you're talking about (indicating)?

A. Yes.

Q. And I believe this is Attachment 5,

24 maybe, I hope --

MR. TWAIT: Yes.

2 BY MS. WILLIAMS:

Q. -- to the testimony of Adrian Namira

4 that's already in the record.

A. And this is the paper that was printed

6 in March of 2009.

Q. Okay. Great.

Question 6 asks, "Can you explain

9 the impact of low velocities and very low slope

10 limits on supplemental aeration?"

A. Primary impacts of low velocities and

12 very low slopes is that they make supplemental

13 aeration necessary. We can also say they made

14 modifying the reaeration simulation in Duflow also

15 necessary.

In my analysis --

Q. Wait. Can we stop there for a second?

A. Yes.

Q. Because you said -- because I think

20 when you explained the modification, you said it was

21 based on depth. So can you --

A. I also mentioned low velocity, as

23 well.

Q. Okay.

But can you explain that

2 interaction there, what you mean?

A. Well, what I mean is -- let me maybe

4 finish my answer here and it may become more clear.

In 1999 -- 1998, 1999, I was

6 charged by the U.S. Geological Survey to do a

7 national study of all the reaeration data that the

8 USGS had collected over about a 20-year period using

9 gas injection methods. They inject the gas, and the

10 rate at which that gas leaves the water is directly

11 in proportion to the rate at which the oxygen enters

12 the water.

So there was a database of 493

14 reaches, 166 streams, 23 states of USGS

15 measurements, and then we had another data set of

16 124 reaches on 24 streets in seven states collected

17 by other agencies -- so state agencies of the

18 Michigan Department of Environmental Quality, Texas

19 Water Resources Board, others. What we found in

20 this study of this large national database is

21 reaeration rate is most strongly related to the

22 product of velocity and slope.

This product of velocity and slope

24 can be thought of as the rate of energy dissipation.

1 So it's a measure of how well the flow mixes. So as

2 oxygen enters the surface, it needs to become

3 distributed throughout the water quality.

If the water is very stagnant, you

5 just have a -- an equilibrium will be established

6 between the oxygen of the air and the oxygen of the

7 surface reaeration will stop. So if you have more

8 mixing, more turbulence, the oxygen can move

9 throughout the entire water colony.

So this velocity, slope gives some

11 idea of the mixing energy of the flow. And the

12 velocity and slope in the CAWS is, basically, off

13 the scale, relative to the 100 other measurements in

14 the databases. So that's why there's going to be

15 little oxygen exchange at the water surface in this

16 system.

Also because the CAWS is deeper

18 than most natural systems, the distribution of a

19 small amount of oxygen coming in from the atmosphere

20 throughout the water may be limited because of the

21 flow mixing indicated by the slow energy

22 dissipation. So that's the limitation on aeration

23 that also, then, resulted in us having to modify

24 they existing Duflow model. And that was supported

1 by looking at the DO data created by the District.

Q. So can you explain whether this

3 research for the -- was it for USGS?

A. Yes.

Q. So were all the other systems you were

6 looking at using supplemental aeration?

A. No, these were natural --

Q. Natural, okay.

A. -- streams looking at natural aeration

10 or reaeration of the water colony.

DR. RAO: May I ask a --

THE HEARING OFFICER: Yes.

13 BY DR. RAO:

Q. You mentioned this database by USGS.

15 Were any of those streams in Illinois?

A. Many of them were.

Q. Was the CAWS also part of the

18 database?

A. There's no measured reaeration data

20 for the CAWS. Richland Creek, Salt Creek, I'm

21 trying to remember what the other one was.

It's in the Peoria area, but I

23 forget the name of it. Cedar Creek maybe it was.

So those were the sites in

1 Illinois that were part of the national database.

Q. Considering the unique characteristics

3 of the CAWS data from USGS, is it your opinion that

4 the data is representative of the CAWS?

A. Well, I mean, the physical process of

6 mixing and aeration is not going to change because

7 of the CAWS or other water bodies. It's a matter of

8 the physical properties that are related to it.

So, for example, as I mentioned,

10 the idea -- the fundamental idea of reaeration is

11 that oxygen from the atmosphere will diffuse into

12 the water surface because of the contact between the

13 two. As this contact happens, if the water was very

14 stagnant, you would get to saturation, concentration

15 of the top layer of the water would be the same as

16 the overlying air and reaeration would stop.

And then, as mixing occurs, then

18 that takes this oxygen from the surface and

19 distributes it throughout the water body. And so

20 that physical process occurs in the CAWS in the same

21 way as it would occur in more natural streams, like

22 Richland Creek or Cedar Creek or the other stream I

23 couldn't think of.

And so, what we found in our

1 analysis is that -- we had a set of streams that

2 were the USGS data that we developed some relations

3 for. And then we applied those relations to this

4 other set of data collected by state agencies, local

5 agencies that were published in the literature, and

6 found good agreement that the physical processes we

7 were able to identify were working similarly in the

8 verification sites, as well as the calibration

9 sites.

DR. RAO: Thank you.

11 BY MS. WILLIAMS:

Q. When you talk about the low velocities

13 and low slope in this system, do you have sort of a

14 rule of thumb or a guideline for us on what would be

15 considered an average velocity or an average slope?

A. Well, I think the way I -- I'll term

17 this is that -- I've got some notes here.

MR. ANDES: Are you -- if I can

clarify. Are you talking about the average

slope of the water bodies study in that

report? Is that the question?

MS. WILLIAMS: I want a relative -- an

explanation of, you know -- we're calling

them low, so that's relative to something.

So what would be typical or what would be

high?

MR. ANDES: The CAWS is low relative

to what?

5 BY THE WITNESS:

A. Can you remind me which question?

7 BY MS. WILLIAMS:

Q. I was just following up on Question 6.

9 This may be similar to another question later --

A. Okay.

Q. -- but I was not --

A. But that would help me, because I have

13 the statistics there. Or Fred has it on the

14 computer, but we could do a quick search.

Q. Let me take a look. I think there may

16 be a more specific velocity question later on, hang

17 on.

A. There was a specific question about

19 the velocity.

Q. Did you look at 15C? At least it's

21 more specific. I don't know if -- it's not, I don't

22 think, the same question, but it's got a specific

23 velocity.

A. I think there's one before that.

1 Here, let's say 15A is probably -- 15A is water

2 velocities too low in the CAWS to support the

3 aquatic life use as proposed by Illinois EPA.

And so that's somewhat related to

5 Ms. Williams' question. And, basically, the

6 discussion of flow velocities that's there, my use

7 of one foot per second or .4 feet per second in my

8 testimony was an attempt to try to define low

9 velocities, that the U.S. Geological Survey has

10 developed for the Illinois Department of Natural

11 Resources a database of streams throughout the state

12 where they've physically measured hydraulic

13 reference.

So this is a tool that DNR uses

15 for design work and analysis work. And they've

16 evaluated, then, reach average velocities for 234

17 measurements at, I want to say, about 40 or 50 sites

18 in Illinois.

And only one measurement for those

20 234 measurements had a velocity of less than .4 feet

21 per second. And more than 87 percent of the

22 measurements had velocities greater than one foot

23 per second.

The Chicago waterway system, on

1 average, has velocities of less than .4 feet per

2 second for much of the waterway. And all reaches

3 are below one foot per second.

A typical Illinois stream,

5 87 percent of them greater than one feet per second,

6 the CAWS, everywhere, less than .1 foot per second.

7 And, even worse, the CAWS, many of the reaches, less

8 than .4. And in the state and the natural stream,

9 that's a very rare occurrence.

Q. Dr. --

MR. ANDES: I believe this is -- I'm

sorry, I'm just going to refer to Page 10 of

Dr. Melching's testimony as the relevant

citations to the geological survey database.

THE WITNESS: Yes.

16 BY MS. WILLIAMS:

Q. Did you look in that database whether

18 any of the segments of the CAWS were included?

A. No. There's no segments of the CAWS.

Again, this is more aimed at

21 natural streams.

Q. Are you sure?

A. I'm pretty sure.

Q. Do you have it?

A. I have a handwritten list. It's not

2 easily printed out.

MR. ANDES: Can you tell us where

you're looking?

MS. WILLIAMS: I'm looking at a

printout, and I don't think it's complete.

So I don't feel comfortable putting it as an

exhibit.

But it's from the web page cited

in the testimony, and it shows the Chicago

Sanitary and Ship Canal at Romeoville.

MR. ANDES: Do we know that that's

just part of the rough cut coefficient

database?

THE WITNESS: It may be. What

velocity does it show for that?

And it may be that my testimony is

focused on natural streams.

19 BY MS. WILLIAMS:

Q. Why don't I show you what I'm looking

21 at and see if...

A. Yeah, but I think --

MR. ANDES: Can he find out what we're

looking at?

1 BY THE WITNESS:

A. This is the database, and it is the

3 Chicago Sanitary Ship Canal at Romeoville. But I

4 think if you click on that, you're not going to see

5 velocity.

And while I'm not 100 percent

7 sure, the mannings in there may be estimated by

8 different means than the other locations in the

9 database.

10 BY MS. WILLIAMS:

Q. So if it did have the velocity and if

12 they were around three or four feet per second, you

13 would think that that was not a proper --

A. There's no way they're around three or

15 four feet per second.

Q. So if that's what it did say, it would

17 be inaccurate in your opinion?

A. Yes.

MR. ANDES: Do we have any information

to showing that it is?

MS. WILLIAMS: Well, I think it's fair

to ask him about the web site that he asks us

and insist on wanting to go to.

MR. ANDES: But you were bringing up

numbers, and I'm just wondering are those

numbers on the website?

MS. WILLIAMS: I can't -- yes. Yes.

MR. ANDES: Are you going to produce

them?

MS. WILLIAMS: I don't think --

THE HEARING OFFICER: Well, wait a

minute.

Mr. Essig, you've been sworn in

before?

MR. ESSIG: Yes.

THE HEARING OFFICER: I assume you

picked up this information?

MR. ESSIG: Yes.

THE HEARING OFFICER: And those

numbers are the ones you saw when you looked

at the website?

MR. ESSIG: Yes. I do not have a hard

copy with me, though, for those numbers.

MS. WILLIAMS: Can we ask him just to

read it? Because I estimated, so we can

maybe ask him to read the exact numbers into

the record.

THE HEARING OFFICER: Yes, please.

MR. ESSIG: There were, basically,

four velocity values given. And they range

from 3.05 per second to 4.06.

MR. ANDES: Those were on the website,

but they're not being introduced as evidence

themselves, because we don't have a --

MS. WILLIAMS: Yes. They've been

introduced --

THE HEARING OFFICER: He's been

previously sworn. He's testified to what he

saw on the website that your witness gave us.

MR. ANDES: Okay.

MR. GIRARD: Can we get an exact

address for the record?

THE HEARING OFFICER: It's in his

testimony.

Correct? The web site is in the

testimony from Dr. Melching on Page 10?

MR. ANDES: Yes.

20 BY THE WITNESS:

A. All right. Let's do some math then.

22 BY MS. WILLIAMS:

Q. Oh, no.

A. The cross-section of the canal at

1 Romeoville is 162 feet wide by 25 feet deep,

2 approximately. That leads to a cross-sectional area

3 of 4,000 square feet. Typical flow at Romeoville is

4 on the order of 2,700 to 3,200 cubic feet per

5 second.

So if we divide the flow by the

7 area, so we have 3,000 divided by 4,000, it's less

8 than one.

Q. So do you think they were using a

10 different flow value or a different --

A. That would have to be under extremely

12 high flow conditions. I think everybody knows 3,200

13 CFS is the limit.

Q. Let me -- Howard is showing me another

15 page, and I don't think that I showed you this page.

THE HEARING OFFICER: Another page

from the website?

MS. WILLIAMS: From the USGS website

that provides a table of the actual values.

20 BY THE WITNESS:

A. These are extraordinary high flows for

22 that site.

23 BY MS. WILLIAMS:

Q. So -- but they're actually measured

1 flows; correct?

A. I would believe so, yeah.

Q. Can we have a citation in terms of

4 where that...

A. That is not in any way a normal flow.

6 These flows range from 10,000 to 14,000. Again,

7 remember, Illinois is limited to 3,200 CFS by

8 Supreme Court decree. So this is like five times

9 the normal flow.

Q. What do you mean? The flow isn't

11 limited by the Supreme Court degree.

A. Oh --

Q. You're talking about the

14 discretionary -- the diversion?

A. Well, the diversion is limited.

Q. Right.

A. And, therefore, the flow is not much

18 different than that.

Q. I don't think that --

A. I'm saying that you're citing this as

21 the typical velocity in the Chicago area waterways

22 at Romeoville. It's a complete fallacy.

MR. GIRARD: Could I ask a quick

question?

THE HEARING OFFICER: Uh-huh.

2 BY DR. GIRARD:

Q. Dr. Melching, if you have a storm

4 event, do the velocities change?

A. Most definitely.

Q. And what happens when you have a storm

7 event?

A. Well, what happens when you have a

9 storm event, you do get velocities like this.

Q. Like what?

A. Like the --

THE WITNESS: Where does it say that,

Fred?

14 BY THE WITNESS:

A. Three -- three to four feet per second

16 during the peak flows during a storm.

17 BY DR. GIRARD:

Q. So when you talk about a normal flow,

19 you're talking about some sort of average of

20 measurements taken over a period of time; is that

21 correct?

A. Yeah, I'm saying the typical flow

23 that's in that waterway almost all the time. Other

24 than extreme flow -- extreme storm conditions, such

1 that the Water Reclamation District needs to open

2 the gates at Lockport or the Sluiz gates are

3 controlling...

MR. ANDES: Dr. Melching, were these

samples all taken on a three-day time period

in January of 2005?

THE WITNESS: According to what it

says there, yes.

MR. ANDES: Can you -- it also, I

notice in here it talks about what the kind

of maximum discharges are at flood level.

THE WITNESS: Yes.

MR. ANDES: Can you let us know what

those are?

THE WITNESS: Nineteen thousand four

sixty-six was the highest measurement from

February of 1997.

MR. ANDES: So if the flood level was

19,000 and we're talking about --

THE WITNESS: That's the maximum flood

level.

MR. ANDES: The maximum --

THE WITNESS: That was ever was

measured at that location.

MR. ANDES: And the levels we're

talking about here are 13 to 14,000, you say

that's in the same general range in terms of

large flows?

THE WITNESS: Yes.

6 BY MS. WILLIAMS:

Q. Do you know what the USGS was trying

8 to capture, high flow or low flow or typical flows?

A. They were trying to capture flows of

10 what they call a bangful flow. So that means that

11 flow that just fills the waterway main channel.

So flows that didn't expand into

13 the flood plains. That's the entire database's

14 objective.

Q. So would that be on the high side?

A. It would be.

Q. But not extreme?

A. It would be -- no, not on the high

19 side. This would be like the type of flow that

20 would happen once a year, on average, or less.

Q. I'm just trying to get at, I think,

22 whether you think -- you know, how relevant this

23 information is to what we're looking at generally.

24 Were they trying to look at typical flows, were they

1 trying to look at average flows, were they trying to

2 look at high flows, low flows?

A. Well, for each site there is a fact of

4 range of flows that they evaluated. None of them

5 are extraordinarily high, none are extraordinarily

6 small. So somewhere in the middle range.

MS. WILLIAMS: Can we have the papers?

Thanks.

9 BY MS. WILLIAMS:

Q. Let's go back to the prefiled

11 questions. I think we left off at No. 7.

That question states: "What is

13 the basis for the statement on Page 5 of your

14 testimony that Illinois EPA 'Appears to assume that

15 the duration of storm effects on water quality lasts

16 only as long as the causative rainfall for the

17 period of elevated flow rates'?"

A. During his testimony on April 23,

19 2008, Mr. Sulsky stated, "Because, for the majority

20 of the year, the waterways are dominated by dry

21 weather conditions for some eruptions of CSOs and

22 some impact." The purpose of my testimony is to

23 illustrate that these eruptions of CSOs have a

24 substantially longer impact on the water quality in

1 the CAWS than might be determined by considering

2 only the rise and fall of the stream flow

3 hydrograde.

Q. So it was reviewing the transcripts

5 from April that --

A. Yes.

Q. -- had caused you to reach that

8 conclusion?

A. Yes.

Q. On Page 7, you testify that, "The long

11 storm effects can negatively impact the aquatic

12 community, and these long storm effects cannot be

13 reduced until the reservoirs of the tunnel and

14 reservoir plan are fully online."

How will Tarp reduce the long-term

16 storm effects?

A. Because the number of CSO events will

18 decrease from ten to 15 per year to much less

19 frequent occurrences with careful operation of the

20 Tarp system, substantial DO stress will be removed

21 from the aquatic life in the CAWS. However, habitat

22 limitations will still prevent substantial increases

23 of biotic diversity.

Q. When will the reservoirs be fully

1 online?

A. Those questions are better answered by

3 the District or Dr. Zenz.

Q. Have you modeled these improvements

5 from Tarp and their impacts on DO levels?

A. No simulations have been done

7 considering the changes in flow and loads after the

8 Tarp reservoirs are completed and in operation.

Q. Why?

A. No one's asked us to.

Q. So the District hasn't asked you to

12 look at how these conditions will change once the

13 Tarp project is completed?

A. The District hasn't asked us to do

15 that, they wanted to focus on current conditions on

16 the ground.

Q. So you can't answer how compliance

18 results will change from current conditions after

19 Tarp is completed?

A. I cannot answer.

Q. Do you know whether there is a

22 different -- let me get back to Question 2 here.

23 And I don't know that it's appropriate for you, but

24 I know we probably won't have you back after we get

1 the technical engineering folks in.

A. Can I make a request?

Q. Yes.

A. Can we -- I mean, I know I'm on the

5 spotlight, but...

That's better, thank you.

Q. Is it correct to state that the

8 modeling work that you developed was utilized to

9 evaluate the amount of aeration that would be

10 necessary through supplemental aeration? Is that

11 accurate?

A. Yes. Well, if it's one of the

13 technologies that were evaluated.

Q. Right.

So can you explain for us whether

16 there's a difference in the amount of aeration

17 stations needed in the waters that have been

18 designated as aquatic life Use B waters and the CAWS

19 aquatic life Use A waters?

A. Can you repeat that?

Q. This is -- I'm reading from

22 Question 2.

A. Yeah, it's Question 2. Well --

Q. I don't know if it's well-worded, but

1 I didn't purposely try to rephrase it or anything.

A. Well, it just seems the way you just

3 asked it, sounded a little bit different than the

4 way I read it.

Q. Okay.

A. But let me explain what we have done.

7 And so we have developed what I call a rough cut

8 integrated plan of technologies needed to achieve

9 100 percent compliance with the proposed standards.

10 And in doing that, we considered what was necessary

11 to achieve the CAWS aquatic life Use A standards in

12 the appropriate reaches and CAWS aquatic life B

13 standards in the appropriate reaches.

However, we didn't try to evaluate

15 what would be necessary to get CAWS aquatic life

16 Use B standards in the CAWS aquatic life Use A

17 reaches. So we didn't look at the increments

18 between those two conditions.

Or the other way around, look at

20 what would it take to take a B to an A in those

21 reaches. And this kind of evaluation, you know,

22 isn't necessarily straightforward because the system

23 is linked.

So what happens if A affects what

1 happens in B? So if you took the A's reaches and

2 suddenly made them B, you might necessitate

3 additional aeration stations in the B reaches, which

4 previously were getting high quality water from

5 upstream.

And so it's -- and we haven't

7 looked at these increments, we just looked at the

8 appropriate standard as applied for the appropriate

9 reach.

Q. How about did you look at what would

11 be necessary to achieve compliance with the standard

12 that's on the books today 100 percent of the time?

A. Only, I would -- in the original works

14 of this Report 18 that I referred to earlier, Alp

15 and Melching 2006 that is now entered into the

16 record, at that point in the use attainability

17 process, we had been asked to look at a number of

18 targets, four, five, and six milligrams per liter.

19 However -- and so we did report some statistics for

20 those.

However, in the end, the District

22 asked us to look at, for the purposes of the cost

23 work that CTE has done, to focus on five milligrams

24 per liter 90 percent of the time and figure out what

1 aeration resources would be needed to achieve that

2 specific goal. So we have some statistics for four

3 milligrams per liter and, for that matter, for three

4 milligrams per liter compliance.

But we didn't, necessarily, put

6 together a program that would lead to that complete

7 compliance with three where three is appropriate and

8 four where four is appropriate.

MR. ANDES: Can I ask, is there water

in this pitcher?

THE HEARING OFFICER: Not that we

brought in. So if there's anything in it,

it's been here at least since Friday.

MR. SULSKI: Don't take a chance.

15 BY MS. WILLIAMS:

Q. And I just want to make sure -- I

17 think I understand, but I just want to be clear.

So your modeling work about the

19 amount of aeration necessary, was used in developing

20 the cost estimates; correct?

So --

A. Can you -- I mean --

Q. If changes --

A. -- which particular cost estimates are

1 you referring to?

Q. The CTE cost estimates.

A. But --

Q. Oh.

A. Because there are several sets of cost

6 estimates. So just -- in --

Q. Do you know which ones were relied on

8 in the modeling?

A. Well, I could say, you know, that --

10 well, what my understanding is, CTE did some initial

11 cost estimates primarily focused at North Branch,

12 North Shore Channel and South Branch Channel of

13 Buffalo Creek. So in those cost estimates, we used

14 the model to develop the necessary aeration

15 resources of the necessary flow transfers.

And the initial cost estimates

17 were contained in their technical memo reports that,

18 I think, are part of the record for the submittal.

19 I forget which attachment letters they are.

And then, they then extrapolated

21 from that result to look at what it would take to

22 achieve 90 percent compliance throughout the entire

23 waterway system for the cost estimate. That one we

24 haven't run up the full calculations.

And then what you would have seen

2 as an estimate relative to 100 percent compliance,

3 or what you will see from Mr. Zenz' testimony, that

4 also is based on our modeling work where we tried to

5 meet the proposed standards in. And that means that

6 the earlier -- that the cost estimate for the

7 90 percent compliance -- and this is going to get

8 complicated -- it's extrapolated from us trying to

9 make, 90 percent of the time, five milligrams per

10 liter.

And then they extrapolated that to

12 these standards, 90 percent of the time over the

13 entire system.

Q. Then they came back to the model to do

15 the 100 percent?

A. Yes. Well, they --

Q. Or was the 100 percent extrapolated

18 also?

A. No, the 100 percent is --

MR. ANDES: If you're talking about

what CTE did, we might want to wait and have

CTE --

MS. WILLIAMS: We won't have

Mr. Melching back, though, at that time to

explain how they relate. I mean, I don't

like going into this without the full picture

either.

MR. ANDES: But I think you're asking

what CTE did in their analysis and not what

Dr. Melching did.

MS. WILLIAMS: But I won't be able to

go back and ask Dr. Melching later how

changes to his modeling impacted the outcome.

I mean, if he understands --

MR. ANDES: Well, that question you

can ask.

MS. WILLIAMS: -- it should,

obviously --

MR. ANDES: That question, though, you

can ask.

MS. WILLIAMS: So this is...

18 BY THE WITNESS:

A. Okay. But somebody is going to have

20 to tell me what the question is now.

21 BY MS. WILLIAMS:

Q. I think the question before was if

23 they come back to your model for the 100 percent

24 compliance cost estimates.

A. Yes. And relative to the earlier

2 model, we had made some modifications and

3 improvements at the recommendation of CTE and the

4 District.

We'd also -- at that point, our

6 initial analyses were just for portions of years,

7 and we then expanded to an entire water year for the

8 evaluation. But the final product of our work will

9 include a second water year then.

At the time, this summer, we

11 hadn't worked up all the data for it. Only 2000 was

12 considered as a quote/unquote "wet year."

And we'll be using 2003 as a dryer

14 year in the final reports prepared for the District

15 on this subject.

Q. I know that you said -- would you

17 agree that in order to achieve full compliance with

18 the standards on the books, additional supplemental

19 aeration would be necessary?

A. Additional --

MR. ANDES: I'm sorry, can I -- I'm

sorry, which standards were you asking about?

I just wanted to clarify.

MS. WILLIAMS: The ones on the books.

MR. ANDES: Today? The current

standards?

MS. WILLIAMS: Today.

4 BY THE WITNESS:

A. So that includes general use standards

6 for portions of the North Shore Channel?

7 BY MS. WILLIAMS:

Q. Yes.

A. Well, again, we --

Q. We can just focus the question only on

11 the secondary contact centers if we want --

A. Well --

Q. -- to make it simpler.

A. -- we're kind of getting conflicting

15 questions here from -- so...

MR. SULSKI: She's doing the

questioning.

18 BY THE WITNESS:

A. Can you repeat the question?

20 BY MS. WILLIAMS:

Q. Well, would it help to say I repeat

22 that I'm asking only about the secondary contact

23 standards and the areas were those are applicable?

A. So the question is will additional

1 aeration resources be necessary to meet those

2 standards?

Q. Correct.

A. We haven't done the analysis of that,

5 in particular.

Q. Do you have an opinion?

MS. WILLIAMS: I would like him to

give us our opinion, Fred, I think it would

be fine.

10 BY THE WITNESS:

A. Okay. I believe that, most likely on

12 the Calumet side, the existing standards can

13 probably be met with the existing aeration resources

14 in place. But if we are trying to get to

15 100 percent compliance, four milligrams per liter in

16 the CSSC and other portions of the North Branch,

17 South Branch, probably additional resources will be

18 necessary.

19 BY MS. WILLIAMS:

Q. Thank you.

I don't think I asked earlier

22 whether the work -- I know we talked about the work

23 that was done by CTE to develop supplemental

24 aeration requirements. Was your modeling also used

1 with regard to determining needs for flow

2 augmentation, as well?

A. Yes.

Q. I would like to jump ahead to a couple

5 of questions that come later that are more focused

6 on your model before I proceed to the remaining

7 questions that are about aquatic life and habitat.

8 So why don't we look at Question 26.

And that question states, "Please

10 define a storm event as it is used in your

11 testimony." It goes on to state, "In the exhibits

12 attached at the end of your testimony, you present

13 storm events that occur on one day and those that

14 occur one week apart as single events."

Please explain how you accounted

16 for these differences in determining the number of

17 days it took the CAWS to recover from a storm event?

A. All right. The reason that some storm

19 events actually involve two overflow periods that

20 may be days apart is that the effects of the first

21 overflow period of the first storm has not fully

22 dissipated by the time the second overflow period

23 starts. Unless the combined duration was listed in

24 the exhibit.

And this is, again, related to the

2 purpose of my testimony, which was mentioned before

3 that illustrates that these eruptions of CSOs, have

4 substantially longer impact on water quality in the

5 CAWS than might be determined by considering only

6 the rise and fall of the stream flow hydrograph and

7 that dry weather conditions might not be as dominant

8 as the stream flow hydrograph may indicate. Thus,

9 since I want to illustrate the overall duration of

10 storm loading effects on water quality in the CAWS,

11 the fact that multiple storms are combined as a

12 single event in the exhibit doesn't detract from my

13 propose.

Q. Now, is there a place in your report

15 where -- let me start again.

In your report I can find tables

17 where you present the duration of storm effect on

18 CBOD5 concentration. And I believe the same for

19 ammonia.

A. Uh-huh.

Q. Can we find information in your report

22 on the same type of effect on fecal coliform levels?

A. No. We haven't done that kind of

24 analysis.

Q. Why not?

A. Well, again, this work was done by us

3 or by Emre unfunded for the purposes of having a PhD

4 thesis.

Q. Okay. So this wasn't specifically

6 done for the District --

A. At the request of the District.

Q. And they didn't ask you to look at

9 fecal coliform?

A. For events. I mean, we did, as I

11 mentioned earlier, add fecal coliforms to the model

12 and calibrate the model and make a whole lot of

13 simulations that CTE and Limno-tech used.

Q. Do you understand how those were used

15 then?

A. I didn't review the detail --

Q. Okay.

A. -- what they then did.

Q. Did you review any of the work on

20 recreational uses that's been part of the District's

21 testimony in the prior hearings?

A. I mean, when you say "any" --

Q. Right.

A. -- it's sort of --

Q. Okay. I mean, Mr. Andes has very

2 efficiently broken out the witnesses into

3 recreational witnesses and aquatic life witnesses.

4 And he has put you with aquatic life witnesses.

And so, I'm just wondering, if you

6 know, if you reviewed any of the work that was

7 presented under recreational witnesses. If you

8 don't know --

A. Well, I'm not sure which things -- I

10 mean, there were some aspects of the recreational

11 work that I was interested in, like the review of

12 how the standards came to be, was done by the

13 independent panel...

THE HEARING OFFICER: Dr. Melching,

we're losing you.

16 BY THE WITNESS:

A. Sorry. I mean, I have read some of

18 the reports related to it, but not necessarily for

19 the recreational aspects of the CAWS, which is from

20 my own interest as fecal coliform is also a hot

21 button issue up in Milwaukee and one of the primary

22 things we're looking at in the water quality

23 management plan update. So I did review some of the

24 things done here to try to get some insight as to

1 how we might attack our problem in Milwaukee.

I read some of these things but

3 more for Milwaukee purposes than Chicago purposes.

4 BY MS. WILLIAMS:

Q. One of the issues I'm trying to

6 understand better is -- I don't know what you want

7 to call it -- but I think you used the word

8 hydraulic damn effect --

A. Uh-huh.

Q. -- in your testimony.

A. Yes.

Q. Can you explain what you mean by that?

A. Well, I think we all know the old

14 saying, water flows downhill. And in this case,

15 downhill is the water surface level.

And, for example, let's look at

17 the Stickney plant. When it discharges its very

18 large flow, that flow is much higher than,

19 typically, the flows coming from upstream.

The flows, at least double that

21 from the north side plant, the tributaries may be

22 low. So what's coming in is smaller than what's

23 coming out.

And the Stickney plant has a

1 tendency, then, to kind of create a mound of water

2 surface elevation. In my attachment to my report, I

3 even showed figures that you can see that the water

4 level upstream of Stickney, nominally upstream of

5 Stickney, isn't always higher than the water level

6 at Stickney or the water level nominally downstream

7 of Stickney.

And so because of the fluctuations

9 in the system and because the system is so flat,

10 typically, you can have this effect where a portion

11 of the Stickney flow goes upstream and then it will

12 comb back downstream as the water levels change

13 throughout the course of a simulation. And so

14 effectively then, this mounding of water is

15 restricting the ability of upstream flow to go

16 further downstream for a time and creating some very

17 long travel times immediately upstream of the

18 Stickney plant, in particular.

Q. Now, did you say on Page 4 that the

20 hydraulic damn upstream from the Stickney plant is

21 obvious as it takes 2.5 days to go eight miles? And

22 then, similarly with the Calumet plant, you say it's

23 obviously, as it takes 1.5 days to go 2.3 miles, you

24 don't mention the north side plant here.

A. Well, upstream of the north side

2 plant, there is hardly any flow. And we

3 specifically didn't compute any travel time

4 information upstream of the plant. Because, in

5 fact, the north side plant upstream and downstream

6 is really a concept.

Q. It's really a concept?

A. Yeah, I mean --

Q. It's not reality?

A. More often than not, the north side

11 plant is backing up into the North Shore Channel.

12 But there are, then, other periods when it's going

13 the other way.

And sort of the visual evidence of

15 this is the -- and I've been at Maple Grove or at

16 Maple Avenue on North Shore Channel near the end,

17 near Sheridan Road in January, and it's completely

18 on ice. And this has got warm discharge from the

19 north side plant that is backing up and influencing

20 that reach.

If you go all the way to Sheridan

22 Road at that same time that I was there in -- was it

23 2003 or 2002, I forget now -- there was ice. So

24 several miles upstream from the plant you still have

1 warm temperatures.

And so, we didn't really

3 specifically try to compute travel time there

4 because, in that reach, upstream and downstream

5 changes much more often than other reaches in the

6 system, if that makes any sense.

Q. Now, is there somewhere in the report

8 that I can find how far upstream this effect is

9 noticed at the three plants? Has that been modeled

10 anywhere?

A. Well, I mean, we could find it from

12 the modeling, but we didn't look more than just in

13 the immediate vicinity of the plants, just to see

14 did we see this reversal of upstream and downstream

15 in the local vicinity plants. But we didn't figure

16 out how far --

Q. How far. And would it be possible to

18 use the models to do that, but that wasn't

19 announced?

A. Yes.

Q. Do you know if you are going to make a

22 recommendation to a field person about how far

23 upstream to take samples that would be unimpacted?

24 Would you be able to make a recommendation like

1 that?

A. Not without looking at the model

3 results and also looking at some of the Districts'

4 water quality sample data.

Q. The best way to go about doing that

6 probably would be to rerun the model for that

7 purpose; or no?

A. Well, I mean, it would be redoing a

9 run that we've already done. But asking -- looking

10 specifically at outflow at selected locations, is

11 not redoing the model, per se, it's just monitoring

12 the output at different locations.

Q. Do you know if there's anything, from

14 an engineering point of view, that could be done to

15 prevent this hydraulic damn effect by the District?

A. You'd have to create a larger slope in

17 the system, and that's probably not a good idea.

MR. ANDES: You're saying you'd have

to reconstruct the channel?

THE WITNESS: Or operate it in a

different way so that you had higher going

out at all time.

MR. ANDES: But you might not want to

do that for other reasons?

THE WITNESS: That you might not want

to do for diversion accounting reasons.

MR. ANDES: It might also make not

such a great area for canoeing and kayaking?

THE COURT REPORTER: Of human what?

MR. ANDES: Canoe and kayaking.

THE COURT REPORTER: You can see how I

can mess up the words if I can't hear them.

9 BY MS. WILLIAMS:

Q. Let's take a look at Question 27.

THE HEARING OFFICER: Before we do,

let's take about a ten-minute break.

(WHEREUPON, a recess was had.)

THE HEARING OFFICER: I think we're

ready to go back on the record.

Ms. Williams, I believe you were

at Question 27.

MS. WILLIAMS: Yes.

19 BY MS. WILLIAMS:

Q. Question 27 asks, "Is it accurate to

21 state that the Duflow model uses a single value of

22 170,000 fecal coliform colony forming units per

23 100 milliliters to simulate the concentration of

24 fecal coliform discharged from CSOs on the CAWS?"

Yes or no?

A. Basically, I'm going to try to answer

3 the whole of 27 at one time here.

Q. Okay.

A. The fecal coliform concentration of

6 170,000 coliform forming units per 100 milliliters

7 was based on data for CSOs in Milwaukee after its

8 deep tunnel system went into operation. It is the

9 median value sampling data for the period 2001 to

10 2004.

This value was considered as

12 representative of fecal coliform concentrations as

13 the event mein concentration at the pumping stations

14 and gravity CSOs in the model simulations for the

15 CAWS at a time where no measured data were available

16 to the Chicago area. Further, Pages 10 and 11 of

17 Attachment 1 to my testimony state the following:

18 "There were four severe rainstorms in 2001 and 2002;

19 August 2nd, August 31st and October 13th, 2001, and

20 August 22nd, 2002, that resulted in flow reversals

21 from the CAWS to Lake Michigan."

During periods of flow reversals,

23 the District is required to intensively sample the

24 quality of water going into the lake. These data

1 were used to evaluate the fecal coliform

2 concentrations and CSOs at a value of 1,100,000

3 coliform forming units per hundred milliliters and

4 was found to give good results for the three of the

5 four events.

Thus, when disinfectious scenarios

7 were evaluated in runs with CSO concentrations of

8 both 170,000 CFUs per hundred milliliters and

9 1.1 million CFUs per hundred milliliters were made

10 for comparison. In 2006, the District collected

11 coliform data in CSOs and concentrations were

12 between 400,000 and 500,000 CFUs per hundred

13 milliliters, confirming that the range in the runs

14 reasonably bracketed the actual inflow conditions in

15 the CSOs.

Because of the lack of data,

17 single fecal coliform concentrations applied to both

18 gravity CSOs and pump station CSOs during

19 simulations. So we did consider two concentrations

20 in the runs that were provided to CTE and Limno-tech

21 for their work.

Q. Has there been additional data

23 developed since that time?

A. Well, as I mentioned here, the

1 District did collect some data in 2006, and I

2 haven't looked that up. But beyond that, I don't

3 know.

Q. Question 28. And I'm not sure I

5 recall, what I'm asking here. So if you don't know,

6 I'll understand, but --

A. I know what you mean.

Q. Do you know what I mean? Okay.

Overall the model shows the stream

10 will not meet the proposed standard more often than

11 the measured value did.

A. All right. Here we go.

Your observation is correct, and

14 this was by design in the calibration process.

15 There was substantial of certainty regarding storm

16 loads because flow volumes for gravity CSOs and

17 ungauged tributaries were estimated on the basis of

18 systemwide water balance, and a limited number of

19 CSO event mien constituent concentrations were

20 extrapolated in both space and time to the unsampled

21 storm period.

Thus, we knew the Duflow model

23 could not reproduce all measured DO concentrations

24 particularly during storm periods. So the goal in

1 calibration was to be as close to the measured DO

2 concentrations but to slightly underestimate the

3 measured DO concentrations.

This calibration approach provides

5 a safety factor when evaluating combinations of

6 technologies or scenarios needed to meet proposed

7 water quality standards. That is when we evaluated

8 the scenarios, if we can find ones that can solve

9 the exaggerated DO problems in the Duflow model for

10 a particular period, we have more confidence that

11 the proposed scenario would result in a desired DO

12 concentration meeting the proposed water quality

13 standards in the actual case.

If we're going to be wrong, we

15 want to be wrong on the low side so that when we

16 develop solutions, we have more confidence that the

17 solution will really do what we want it to do. So

18 this was intentional.

Q. Thank you.

In Question 29 on Page 22 of the

21 report attached to your testimony you say, "Large

22 storms have more homogenous CSO load than small

23 storms."

Didn't you assume the same

1 concentration for all storms?

A. Okay. The assumption of constant

3 event mien concentration applies only within each of

4 three sub areas, north Shore Channel and North

5 Branch of the Chicago River are one subarea, the

6 Chicago River Mainstem, South Branch Chicago River

7 and the Chicago Sanitary and Ship Canal are another

8 subarea, and the Little Calumet River North and the

9 Calumet Sag Channel are the third subarea. Further,

10 the storms in the calibration period in 2001 tend to

11 have different CSO event mien concentrations for

12 each storm and each subarea because event mien

13 concentrations were measured for most storms during

14 that that period.

So this was that period I

16 mentioned earlier where the District went out and

17 collected special data for us. Storms in 2002, the

18 verification period, and also some of the storms of

19 2001 outside of the calibration period, have

20 identical concentrations for each storm but the

21 concentrations vary by those three subareas.

And so the -- that's about the

23 concentration. But the load is the product of

24 concentration and CSO volume.

So even where we have the

2 concentration is equal within a subarea, the load is

3 going to vary positionally, depending on the volume

4 of runoff in those areas.

So the event mien concentration

6 may be the same for two storms, but the volume of

7 the gravity CSOs becomes a greater proportion of CSO

8 volume for large storms. The smaller storms may

9 only require, or mainly require, pump stations to

10 come online, and the -- because they are collecting

11 large areas, it becomes necessary to overflow them.

Some of the smaller areas that are

13 individual gravity CSOs may have not gotten enough

14 flow to actually cause a CSO when they're still

15 going to Tarp. But as a storm gets larger, then

16 everybody is overflowing, and, therefore, the load

17 starts to get spread throughout the entire system

18 more evenly. So that's the difference between the

19 large and the small storms.

Q. I think we can flip back now to

21 Question 10. You make the following statement on

22 Page 7 of your testimony.

"The long effects of storm flows

24 on water quality also indicate that it may be

1 appropriate to consider wet weather standards for

2 the CAWS."

Let's start with the first part of

4 Question 11. When you say "wet weather standards,"

5 what do you mean?

A. Water -- well, what I mean is, water

7 quality standards that are different during wet

8 weather to reflect conditions that are achievable in

9 water -- a water body under consideration.

Q. And when you say "achievable," what do

11 you mean?

A. Well, I mean, that loadings that are

13 going to come in a CSO system are very difficult to

14 overcome by technologies available to us now.

Q. So you mean -- by "achievable," do you

16 mean physically possible?

A. Yes.

Q. How would a wet weather standard

19 assist in controlling these long-term storm effects?

20 And the second part of that is would these standards

21 be intended to protect recreational uses or aquatic

22 life uses?

A. Is that one of the numbered questions?

Q. This is No. 11, yeah. I think it made

1 more sense to take No. 11 before the last part of

2 ten.

A. So 11A is would these standards be

4 intended to protect recreational uses or aquatic

5 life?

Q. Sure. Let's try that. Let's start

7 there. I don't have A -- I don't have letters, but

8 that's fine.

A. I tried to break it into pieces.

Q. That makes sense. Let's start there.

A. Okay. All right.

Firstly, my testimony in this case

13 was with respect to aquatic life uses, and it was

14 aimed at recognizing reality. That is, even under

15 completely natural conditions, low dissolved oxygen

16 can occur.

And in the CAWS with the large CSO

18 events, it is not practical to completely eliminate

19 periods of low DO concentrations. Allowance for

20 temporary periods of lower DO may not substantially

21 harm aquatic life uses.

For example in the U.S.

23 Environmental Protection Agency, the national

24 criteria document for DO, Dissolved Oxygen, which is

1 Attachment X to the proposal, indicates that even

2 larval stages of many species, including Large Mouth

3 Bass, Small Mouth Bass and Channel Catfish, can

4 survive short periods of low dissolved oxygen

5 concentrations. For example, on Page 17, Small

6 Mouth Bass larvae suffered complete mortality of sac

7 larvae resulting from six-hour exposure to 2.2

8 milligrams per liter but no more mortality occurred

9 after exposure to 4.2 milligrams per liter.

Based on these tests, four

11 milligrams per liter may be tolerated by Small Mouth

12 Bass with concentrations as high as 2.2 milligrams

13 per liter. Page 18. Concentrations from 1.7 to 6.3

14 milligrams per liter reduced the growth of early

15 life stages of Large Mouth Bass by ten to 20

16 percent.

Q. Dr. Melching, did you find anywhere

18 that indicated that short-term levels that go down

19 to zero could be tolerated by aquatic life?

A. No.

Q. Okay.

A. One other thing I wanted to add is

23 that in the United Kingdom they have -- they had

24 actually proposed DO standards that specified

1 allowable frequencies and durations of lower DO

2 concentrations. And these standards were proposed

3 for ecosystems suitable for salmonid fisheries,

4 cyprinid fisheries and marginal cyprinid fisheries.

These standards proposed

6 concentrations that may not be met for one hour, six

7 hours and 24 hours no more than once per month, once

8 per three months or once per year. So standards

9 have been proposed not in the U.S. but in other

10 countries that allow for these temporary lower DO

11 values.

Q. Do they have a minimum value?

A. Yes, they do.

Q. Okay. And what are those?

A. It depends on the species of fish and

16 the durations we're talking about.

Q. So the standard would say something

18 like you can go below during wet weather events to

19 another more -- another absolute minimum?

A. No. No, second --

Q. Or there would be no --

A. It's just you can go below a certain

23 target, once per a month, once per three months or

24 once per a year.

Q. So even to zero, possibly, under those

2 standards?

A. Even to zero under those standards.

4 So, basically, the standard is like this level at

5 all times except for once per month for one hour.

Q. And these are in Europe, right, you're

7 talking about --

A. These are in the United Kingdom, so

9 England.

MR. ETTINGER: Excuse me. Can I ask a

couple of follow-ups?

MS. WILLIAMS: Sure.

13 BY MR. ETTINGER:

Q. I'm Albert Ettinger. I represent the

15 Sierra Club, Prairie Rivers Network and, perhaps,

16 somebody else.

I had a couple of questions on

18 this line. As I understand the thrust of your

19 testimony, in large part, is that the effects of

20 these CO events are actually longer than what IEPA

21 assumes. Is that correct?

A. Yes.

Q. But now, it seems to me, you're

24 testifying that we should consider wet weather

1 standards that would be applicable for an hour or

2 six hours or something like that. Is that

3 reasonable to do if what you're saying is that the

4 CSO events are such that they're, basically -- it's

5 always wet weather?

A. Well, I think by my -- what I just

7 read off with regarding standards in the

8 United Kingdom, I'm just giving an example of a

9 place where they have made allowances, and some of

10 these are up to 24 hours. But that's for their

11 streams under their conditions.

And so it's -- I'm not saying this

13 is what should be done in the CAWS, I'm just saying

14 it has been done elsewhere.

Q. Well, a lot of things have been done

16 elsewhere. But you're not saying that -- you're not

17 saying that anything that's being done in England is

18 necessarily applicable to the CAWS?

A. No.

MR. ETTINGER: Thank you.

21 BY MS. WILLIAMS:

Q. Do you know if these DO standards in

23 England were protective of early life stages of fish

24 as sensitive as Channel Catfish?

A. Well, again, they established specific

2 ones for salmon, and so that would be probably more

3 protective. And they also have cyprinid fisheries,

4 which are less protected.

MR. ANDES: The document we're

referring to is included on the disk that we

provided earlier.

8 BY MS. WILLIAMS:

Q. So let's go back to the prefiled from

10 Question 10.

"What are the impacts to the

12 aquatic community associated with these long-term

13 storm effects?"

A. Okay. The first -- I should probably

15 have chosen a different word. I should have said,

16 instead of long-term effects, maybe lingering

17 effects of storm flows.

With regard to what are the

19 impacts, no detailed study on the impacts on the

20 aquatic community associated with lingering effects

21 of storm pollutants have been done for the CAWS.

22 Storm loads cause external stress on the aquatic

23 community, including physical habitat acting on the

24 aquatic community.

The accurate affect of all these

2 stresses can lead to poor biotic integrity. To

3 fully answer this question, further study will be

4 needed.

Q. Well, let me clarify this point,

6 because you are sort of a transitional witness for

7 us entering into the aquatic life testimony. We

8 have many witnesses yet to come.

And as far as you know, none of

10 those witnesses have studied the effects of

11 lingering -- or the lingering -- well, the effects

12 of lingering storm affects on aquatic life into the

13 CAWS. Is that correct?

A. Well, all I can say is that I haven't

15 read everybody else's testimony. So I don't know

16 what they are going to say.

But in the documents related to

18 use attainability and to the statement of reasons

19 supporting documents by the Agency, there's no

20 discussion --

Q. But the Agency is not suggesting we

22 have a wet weather standard for aquatic life use,

23 the District is suggesting that, your testimony is

24 suggesting that. So I want to know whether there's

1 going to be testimony from the District that

2 explains what impact this would have on aquatic

3 life?

MR. ANDES: Based on your knowledge.

5 BY THE WITNESS:

A. Based on my knowledge, I don't know.

MR. ANDES: We will have plenty of

other witnesses, including some on wet

weather standards.

MS. WILLIAMS: I mean, it's fine with

me, Fred, if you suggest which witness would

be best to ask, then we can simplify things

with Dr. Melching as we go. I mean, I think

he's answered as best he can.

MR. ANDES: Because we have a number

of witnesses that discussed the issue of

impacts of wet weather on water quality,

including Dr. Melching, including Dr. Makay

and a number of others. And then we have

discussion by Dr. Friedman about wet weather

standards.

So I think that you'll see this

issue recurring in a number of other

testimonies.

MS. WILLIAMS: Okay.

2 BY MS. WILLIAMS:

Q. The last sentence -- question in

4 Question 4 says, "How can aquatic life potential

5 vary before and after a storm event?"

MR. ANDES: I'm sorry, where was --

MS. WILLIAMS: Question 11. If you

broke them up into subparts, it would be the

last one.

MR. ANDES: Okay. Thank you.

11 BY THE WITNESS:

A. Aquatic life potential should be the

13 same before and after a storm event on the CAWS.

14 However, aquatic life can tolerate short periods of

15 low dissolved oxygen and/or find locations of

16 adequate dissolved oxygen in the system during

17 storms.

18 BY MS. WILLIAMS:

Q. Do you think there are areas during

20 storms of adequate dissolved oxygen in this water

21 body?

A. Yes.

Q. And what levels of dissolved oxygen

24 would you expect to see in these refuge areas?

A. Enough for them to survive, but I

2 don't --

Q. And what amount would you think they

4 would need to survive?

A. I think maybe we turn this question

6 the other way around. Because we don't see massive

7 kills, whatever is there apparently is enough.

Q. So we should set the standard for

9 whatever is there now?

A. I'm not recommending anything about

11 setting standards.

Q. So -- I mean, it seems like you are.

13 It seem like you're recommending that we have a wet

14 weather standard.

So I'm trying to understand what

16 you're recommending that would look like.

MR. ANDES: Other witnesses will

testify as to that.

19 BY MS. WILLIAMS:

Q. Question 12.

"On Pages 7 to 8 of your prefiled

22 testimony, you state that variation in habitat and

23 substrate, including shelter areas for fish, are

24 generally absent from the CAWS."

Question A, "On what basis do you

2 conclude that shelter areas for fish are absent from

3 the CAWS?"

A. On the basis of 147 cross-section

5 measurements made by the U.S. Army Corp of Engineers

6 and used to describe the CAWS in the Duflow model

7 and also site visits to more than 20 location on the

8 CAWS.

Q. So do you think this conflicts at all

10 with what you just said?

A. You're talking about two different

12 kinds of refuges.

Q. Could you just explain?

A. Well, one refuge is a place where

15 there's some DO, where they can have enough to

16 survive. Another refuge is a resting area where

17 they can hide from predators.

Q. What would we be looking for to find a

19 refuge area with higher DO? Would you just need to

20 sample or would there be physical characteristics

21 that you would look for?

A. I think it's more a matter of where is

23 the position relative to the loadings.

Q. Okay. Based on the chemical -- the

1 oxygen demand of the loadings and where they're

2 located?

A. Where the loadings are entering the

4 system. The relative position to those.

THE HEARING OFFICER: I'm sorry,

Dr. Melching, I didn't hear that at all.

7 BY THE WITNESS:

A. Where the loadings are entering the

9 system. The relative position to those.

10 BY MS. WILLIAMS:

Q. So back to this 12A.

Are you saying that in your site

13 visits you did not find evidence of any shelter

14 areas of habitat at all?

A. No.

Q. And which areas did you go to in your

17 site visits?

A. I've been to -- I mean, to list them

19 all is just to tax the memory. I've been in a

20 number of locations in the Cal Sag, Sanitary Ship

21 Canal, the North Shore Channel, the North Branch,

22 the Mainstem, the South Branch. Like I said, to

23 remember every spot --

Q. Okay. That's fine.

A. -- it's a little hard.

Q. And do you also conclude that shelter

3 areas for macroinvertebrates are absent?

A. Well, my testimony didn't comment on

5 shelter areas for macroinvertebrates. Nonetheless,

6 I will try to answer this question.

Macroinvertebrates do not require

8 the same type of physical areas as fish do.

9 Macroinvertebrates primarily hide in the larger pore

10 space -- in the bed. Because the bed for the CAWS,

11 except for Bubble Creek, is either cut through solid

12 rock, which is most of the CSSC and Calumet Sag

13 Channel, were dug through consolidated silt and clay

14 rather than formed by natural geomorphologic

15 processes, the pore spaces in the bed are rather

16 limited.

The bed of Bubble Creek has a

18 deep, unconsolidated, unstable silt layer, which

19 is -- well, the worst substrate for

20 macroinvertebrates because of its instability. And

21 the reason I say worst is some of my work in China

22 was with a group that was taking macroinvertebrate

23 data throughout the country, and they developed a

24 rating system of different substrates relative to

1 macroinvertebrates. An unstable made it to the zero

2 mark, and Fred's going to --

MR. ANDES: And we have an exhibit on

that. The specific report that discusses the

China work by weighing it out is on the disk.

And the table, which Dr. Melching

is referring -- there are copies for

everyone.

THE HEARING OFFICER: I've been handed

information for Melching's Response to IEPA

Question 13, which we'll mark as Exhibit 171,

if there's no objection.

Seeing none, it's Exhibit 171.

(WHEREUPON, a certain document was

marked Exhibit No. 171 for

identification, as of 11/17/08.)

MR. ANDES: It actually deals with

Questions 12 and 13.

19 BY MS. WILLIAMS:

Q. Can you explain what unstable means

21 here?

A. It means very easily moved. It means

23 that if you were to drop a probe into the bottom of

24 Bubbly Creek, it would easily sink.

It means that these sediments are

2 very easily moved when the pump station turns on.

3 It's almost like it's a fluid run, would be another

4 way to describe it.

Q. Is that -- so are you using that to

6 describe the whole CAWS?

A. No, I'm using that to describe

8 Bubbly Creek.

Q. And where would the rest of the CAWS

10 fit in here?

A. I would say it's -- those areas

12 that -- and I think we can't necessarily use this

13 all the way because this is based on streams that

14 formed under the national geomorphological

15 processes. Much of the CAWS was physically dug by

16 man.

Q. But not all of it; right?

A. Almost all of it.

Q. I think you've implied in your answer

20 that all of it.

What about the Little Calumet

22 River and the --

A. Well, the Calumet River North was also

24 deepened and widened to handle shipping traffic

1 relative to natural. It's only the Little Calumet

2 South that's still somewhat natural. But that's not

3 part of the CAWS.

Q. Right.

A. It's part of our model.

Q. And where does the rest of the habitat

7 fall on this rating?

A. Well, those that were dug out from

9 consolidated materials are along the lines of the

10 silt and sand, which is the parent material. But --

11 and then the solid rock --

MR. ANDES: I'm sorry, if I can

clarify.

But is part of what you're saying

that, relative to natural silt and sand, they

are a worse substrate?

THE WITNESS: Correct.

MR. ANDES: The CAWS areas are worse

than the natural areas. Is that right?

THE WITNESS: Yes.

MR. ANDES: Okay.

22 BY MS. WILLIAMS:

Q. Now, there are metrics that are

24 similar to this in the QHEI, but you're referring to

1 a different type of index here?

A. Again, this is an index that was

3 developed by my Chinese colleagues on the basis of

4 their sampling in about 300 sites around China.

Q. And what's it called?

A. Well, they call it a habitat diversity

7 index.

Q. Well, let's just walk through the rest

9 of Question 12. We may have to come back to some of

10 this, but...

A. Uh-huh.

Q. Question C. "Are there not enough

13 fish shelter areas or macroinvertebrate shelter

14 areas in the CAWS to support the aquatic life uses

15 proposed by Illinois EPA?"

A. Well, given that, to my knowledge,

17 there are very few shelter areas in the CAWS, I do

18 not think that this would be sufficient to support a

19 diverse fish community.

Q. But that's not what's being proposed;

21 is it?

A. Well, should I give my standard answer

23 for that?

Q. Yes, that would be good. Go to your

1 standard answer.

A. Well, the standard proposed here for

3 dissolved oxygen is, in many ways, identical to the

4 general use standard that this board has recently

5 passed. Therefore, aren't we -- general use is

6 necessary to lead a diverse and balanced community.

So if we're expecting DO to be the

8 same as general use or material use as a general

9 use, then aren't we implying we want a diverse

10 community?

Q. So what you're saying is we need to

12 look at the numeric criteria first to figure that

13 out? I mean, or are you -- I mean, because the

14 question was directed to the aquatic life use

15 designation. The CAWS aquatic life B designation or

16 the Use A designation.

A. Well, I guess the thing is that if we

18 require dissolved oxygen standards that are

19 necessary for general use, aren't we essentially

20 saying it makes no logic to say that this waterway

21 is less than the Clean Water Act goal but then to

22 require it to meet in many ways the same DO

23 standards we would impose on waterways that we say

24 do meet the Clean Water Act.

Q. Well, don't you have --

A. So how can you separate these two

3 things?

Q. But don't you have to separate --

5 don't you have to set the numeric criteria to

6 protect the aquatic life use that you're

7 designating. Correct? You agree with that?

A. I would agree with that.

Q. Okay.

Do you also agree that for the

11 Use B waters, the dissolved oxygen standard is

12 substantially different than the general use

13 standard?

A. I say it's not substantial.

Q. And why is that?

A. Because the 3.5 minimum is the same

17 and the four milligram per liter seven-day --

THE COURT REPORTER: I'm sorry, you

have to speak louder.

20 BY THE WITNESS:

A. -- average of daily minimum is the

22 same.

23 BY MS. WILLIAMS:

Q. How low would the minimum have to be

100

1 for it to be substantially different than the

2 general use standard?

A. I think it's still a matter of -- I

4 don't see that a line has been drawn between the

5 aquatic community that's expected here and the DO

6 standard that's appropriate for that aquatic use.

7 So I think it still has to be driven by the aquatic

8 use --

Q. Right.

A. -- but you need to think about what

11 that community is.

Q. And do you have biological information

13 that supports a conclusion that these dissolved

14 oxygen standards are too protected?

A. Well, what I did do is, in the

16 testimony of the IEPA, Mr. Smoger -- if I'm

17 pronouncing his name wrong, I apologize -- certain

18 fish species were mentioned as being things that

19 wanted to be protected, were Channel Catfish, Small

20 Mouth Bass and Large Mouth Bass.

21 BY MS. WILLIAMS:

Q. Are you talking about things that want

23 to be protected in the dissolved oxygen criteria

24 documents?

101

A. No, I'm talking about what -- again,

2 the problem that I have is -- from the statement of

3 reasons from the UAA, from the testimony of IEPA,

4 I'm not sure what pieces were in their weight of

5 evidence method. So I'm left with, as an external

6 person, fishing through or looking through the

7 documents trying to figure out, well, what might be

8 components of this community.

And so mentioned in the testimony

10 were Large Mouth Bass, Small Mouth Bass and Channel

11 Catfish. So I said, well, the U.S. Fish and

12 Wildlife Service developed habitat suitability

13 indices for these species of fish, so let's find

14 out. Is the CAWS a good habitat for these species

15 based on what's in the habitat suitability reports

16 of fish and wildlife?

So focusing just on the habitat

18 side of this equation, I reviewed the habitat

19 metrics for each of those fish species, and,

20 basically, found that for Small Mouth Bass and

21 Channel Catfish this is not their best habitat. The

22 Large Mouth Bass adults, it's pretty close to their

23 preferred habitat. For early life stages, though,

24 it's not really a preferred habitat for any of these

102

1 fish.

MR. ANDES: And those USGS reports are

included on the disk that we provided.

4 BY MS. WILLIAMS:

Q. I'm just looking ahead because I want

6 to try and follow from your answer.

Question 36 asks, "Who calculated

8 the habitat suitability index metrics for the CAWS,

9 referred to on Page 13 of your testimony?"

Now, these weren't calculated for

11 the CAWS, were they, or they were? This is Question

12 36.

A. So -- and I think this may be one of

14 the questions where I'm not 100 percent sure I

15 understand what you're really asking.

Q. Okay.

A. So I'm going to volunteer an answer.

18 And if that isn't what you're really asking --

So what you see on Page 13 of my

20 testimony, I determined these habitat suitability

21 index metrics listed in Attachment 1 of my testimony

22 on the basis of the habitat suitability index metric

23 charts in the U.S. Fish and Wildlife Service reports

24 for each species and using my knowledge of physical

103

1 conditions of the CAWS.

Q. What is the purpose of a habitat

3 suitability index?

A. Which question number is that?

Q. Still on 36.

A. Okay. All right.

The HSI model reports can be

8 downloaded from the U.S. Geological Survey, as Fred

9 has mentioned there on the note. And just to make a

10 note here, the USGS absorbed the research division

11 of the Fish and Wildlife Service back in the early

12 '90s.

MR. ANDES: I would also just say the

web link for the USGS website, where the

reports can be downloaded, in addition to

some other web links that we've provided in

Dr. Melching's answers, I have a list of

those web links to add to the record.

THE HEARING OFFICER: I'm going to

mark this as Exhibit 172. It's web links in

response to IEPA questions to Melching.

There's no objection, we'll mark

this as Exhibit 172.

104

(WHEREUPON, a certain document was

marked Exhibit No. 172 for

identification, as of 11/17/08.)

4 BY THE WITNESS:

A. So these habitat suitability index

6 models have been developed for 157 species of

7 animals, including birds, fish, mammals and

8 amphibians. In particular, habitat suitability

9 index models have been developed for around

10 60 species of fish --

11 BY MS. WILLIAMS:

Q. Are these mostly game and sport fish?

A. Yes.

Q. The USGS website gives the following

15 statements regarding the purpose of the HSI model.

16 This series provides habitat information on

17 evaluating impacts of fish and wildlife resulting

18 water and land use changes.

Models in this series reference

20 numerous literature sources in an effort to

21 consolidate scientific information on the species'

22 habitat relationships. Models should be viewed as

23 hypotheses of species habitat relationships rather

24 than statements of proven cause and effect

105

1 relationships.

The value is to serve as a basis

3 for improved decision making and increased

4 understanding of habitat relationship. The HSI

5 model -- this is not quoting the USGS site anymore,

6 this is me again.

HSI models have been used

8 extensively in wildlife management applications.

9 For example, Brooks 1997 notes that I suspect more

10 wildlife is influenced by application of HSI model

11 and habitat evaluation procedures than most other

12 management methods. HSI models have been used by

13 the U.S. Environmental Protection Agency for a

14 number of projects, for example, the Atlantic

15 Ecology Division of USEPA used them as part of a

16 scale of habitat assessment and the web link --

MR. ANDES: The web link is on the

exhibit we just introduced.

19 BY THE WITNESS:

A. And I got the idea to apply HSI models

21 to the CAWS when I was reviewing a report proposing

22 an ecosystem remediation plan for the Lower Fox

23 River in Wisconsin, which was done by Sesa Lu Heng

24 (phonetic) and a group of others. They considered

106

1 HSI information for Small Mouth Bass and Walleye in

2 their review of various remediation plans to the

3 Lower Fox River.

MR. ANDES: That report is also

included on the disk that has been provided.

6 BY MS. WILLIAMS:

Q. So from that answer, Dr. Melching,

8 would you agree that this type of index is not

9 typically used to determine biological potential for

10 the purpose of determining obtainable aquatic life

11 uses?

It's just yes or no. Either you

13 agree or you don't agree.

THE HEARING OFFICER: Let him consult

with his attorney, please.

16 BY THE WITNESS:

A. Well, I do not know of a specific case

18 where HSI models were used to determine biological

19 retention for the purpose of determining appropriate

20 aquatic life use for a water body. I think the

21 reason for that may in part be because it's my

22 understanding that people are proposing life uses to

23 actually establish entire communities of aquatic

24 life rather than individual species.

107

But, nonetheless, because I

2 couldn't find any discussion in the various

3 documents before me as to what community we're

4 actually trying to establish for the CAWS, I

5 resorted, as I said before, to having a look at

6 three specific species that I saw mentioned in IEPA

7 testimony.

8 BY MS. WILLIAMS:

Q. Did you look for other species that

10 were mentioned in your testimony?

A. These are the only ones that stood out

12 to me.

Q. What about White Sucker, did you look

14 for studies on that?

A. No, because they weren't specifically

16 mentioned as one of the reasons DO standards were

17 set.

Q. So you weren't looking at other

19 important species for other numbers, like

20 temperature standards or other standards, you were

21 focused on DO?

A. DO.

Q. Can you explain why -- well, do you

24 think it's appropriate -- this is Question 37 -- to

108

1 use this habitat suitability index without the

2 chemistry measures?

A. Well, this is -- in every habitat

4 suitability report, official wildlife service makes

5 a little recommendation of how the models should be

6 used. And what they say in each of those three

7 reports is that these model are not perfect

8 predictors.

And in each report -- actually,

10 this is quoting myself -- I should say something

11 along these lines, these models are not perfect

12 predictors. And in each report for the species of

13 interest here, a statement applies indicating

14 species of interest may be present even if the

15 suitability index is zero. And a habitat with high

16 suitability index may contain few fish.

The Fish and Wildlife Service

18 recommends that suitability indices should be

19 compared with fish data for the water body of

20 interest before interpreting the results. According

21 to the physical habitat, only HSI metrics for the

22 CAWS is a near perfect habitat for Large Mouth Bass.

And we find these species to be

24 dominant game fish species in the CAWS. And my use

109

1 of the term "dominant" is coming from the UAA

2 report, it's not my word.

Similarly, for the physical

4 habitat, only HSI metrics indicate the CAWS as a

5 poor habitat for Small Mouth Bass and Channel

6 Catfish. And we find very few of these fish in the

7 CAWS.

Thus, it seems that the physical

9 habitat only metrics are agreeing with the fish

10 data, indicating the importance of habitat to these

11 fish species in the CAWS.

Q. So does that mean you think it is

13 appropriate to use the habitat suitability index

14 without the chemistry parameters?

A. Yes.

Q. Okay. Can you tell us what the

17 habitat suitability index parameters say about

18 dissolved oxygen for the three species you've

19 mentioned?

MR. ANDES: What they say about

dissolved oxygen?

MS. WILLIAMS: Yes.

23 BY MS. WILLIAMS:

Q. It would have an index for that, too;

110

1 right? Just like each of the habitat parameters --

A. I'm not not sure that's the case for

3 all of these.

Q. Uh-huh.

A. Because many of the water --

Q. Would we be able to find it?

A. Huh?

Q. Where would we able to find it?

A. Right here (indicating). So let's

10 look at it.

Starting out with Channel Catfish

12 at the top of the pile. All right. Let's see.

THE HEARING OFFICER: Dr. Melching,

you need to tell us what you're looking at,

please.

THE WITNESS: Okay. Let me just make

sure I found the spot.

All right. So this is a report

entitled Habitat Suitability Index Models,

Channel Catfish.

THE HEARING OFFICER: And is that on

the disk that's Exhibit 170?

MR. ANDES: Yes.

111

1 BY THE WITNESS:

A. So here they give a range, starting

3 with the zero suitability at one milligram per liter

4 and full suitability one, at seven milligrams per

5 liter. And it's a straight line between those two

6 points.

THE HEARING OFFICER: Could you give

us your page number, please?

THE WITNESS: It's Page 12.

THE HEARING OFFICER: Thank you.

11 BY MS. WILLIAMS:

Q. And what does zero suitability mean

13 under these habitat indices?

A. Well, it means that --

Q. Does it mean depth or does it just

16 mean --

A. It means unsuitable.

Q. It would be absent --

A. That they would choose not to be

20 there.

Q. Not to be there. Okay.

So a Small Mouth Bass, or would

23 you rather go to Large Mouth Bass first?

A. I'm just going by which is in the pile

112

1 here. This is the habitat suitability information

2 for Small Mouth Bass.

This is Page 13. It also starts

4 with the zero at one milligram per liter. It

5 reaches one at six milligrams per liter and this

6 one, rather than being a straight line, is a bit of

7 a curve.

Finally -- and then this, finally,

9 is habitat suitability index models, Large Mouth

10 Bass. Now, here, rather than having a curve, we

11 have a number of steps.

So if -- this is Page 10. So if

13 the DO is frequently less than two milligrams per

14 liter, this gets a suitability index of .1.

If the DO is usually greater than

16 two, and less than five milligrams per liter, it's a

17 suitability index of .4. If it's usually greater

18 than five milligrams per liter and less than eight

19 grams per milligrams per liter, it's a suitability

20 index rating of .8. And then if it's often above

21 eight milligrams per liter, it gets a suitability

22 index of 1.

And the definition of "frequently"

24 "usually" and "often" aren't explicitly given here,

113

1 that I can recall. So that's in the eye of the

2 beholder.

Q. I think that you've answered 39. Oh,

4 no, maybe not. Question 39.

"What habitat suitability index

6 rating would represent the level at which Illinois

7 EPA's proposed aquatic life uses for the CAWS could

8 not be attained? How would you determine this

9 threshold?"

A. Well, again, this is one of the

11 questions I'm not exactly sure what you're asking.

12 But here goes.

So as I just stated, the Fish and

14 Wildlife Service indicates that these habitat

15 suitability index ratings can only be properly

16 interpreted by comparison of fish sampling data on

17 the water body of interest.

Q. So they're not transferable between

19 water bodies. Would you agree with that statement?

A. The rating itself?

Q. Yes.

A. Or the procedure?

Q. The rating itself.

A. Well, you would make an individual

114

1 evaluation for a given water body that would change

2 another one.

Q. And that hasn't been done for the

4 CAWS. Or are you saying you've done that for the

5 CAWS?

A. Well, what I've done for the CAWS is,

7 in general, considered -- again, using my knowledge

8 of velocity steps, variations in water levels and

9 some of the other physical substrate -- physical

10 components here, made an evaluation in a general

11 case over the entire CAWS, therefore, what you see

12 in some of my reporting are ranges of ratings that

13 reflect different waterways. I haven't gone point

14 by point and location by location.

Q. But you also haven't used all the

16 indices that you would use if you were going to

17 do --

A. Well, again, my purpose was to comment

19 on those things that I feel I have some knowledge

20 of, which is physical habitat. And also --

Q. Would you say that applying habitat

22 suitability in the indices is one of the things that

23 you have extensive knowledge of?

A. I would say habitat suitability

115

1 application is rather straightforward. It's more a

2 matter of having the knowledge -- as I just

3 described in the DO's regulations, it's a straight

4 line between one value and another that you would

5 then compare to the reach.

Q. In -- you know, in looking at QHEI

7 information, we've had a lot of testimony about that

8 already. And that is a qualitative index.

A. Uh-huh.

Q. And we have had a lot of testimony

11 about trainings that people go through in order to

12 be certified or qualified to apply that index.

13 Would you agree the same is true here, or if not,

14 what's different about this?

A. Well, what's different about this is

16 the way the indices are indicated. Maybe the

17 best -- maybe this would be a good time to go to

18 this one (indicating).

MR. ANDES: Just a minute, I'll get

there.

THE HEARING OFFICER: Are we going to

make 200 today?

MR. ANDES: One can only hope.

We are only staying until 4:15,

116

so...

THE HEARING OFFICER: I've been handed

information for Melching Response to IEPA

Question 40A. If there's no objection, we

will mark this as Exhibit 173.

Seeing none, it's Exhibit 173.

(WHEREUPON, a certain document was

marked Exhibit No. 173 for

identification, as of 11/17/08.)

10 BY MS. WILLIAMS:

Q. Is this a document that you developed

12 to respond to the question, or is part of this taken

13 from your report?

A. Well, this is a document that I

15 developed to respond to one of the questions.

16 Because there seems to be a lack of clarity on how

17 HSI metrics are determined.

So the top of this figure shows

19 one of these HSI ratings, in this case for Large

20 Mouth Bass, and it's related to the maximum current

21 velocity at .8 of the depth within pools or

22 backwaters during spawning. So this is a measure

23 for whether it's a good area for embryo.

And so that's just a curve or a

117

1 set of lines. And below that are the average

2 velocities that are included in the attachment.

Q. And these are modeled velocities;

4 right?

A. These are modeled velocities averaged

6 over July 12th to September 15th, for those reaches.

7 And we initially calculated feet per second -- I

8 record them in feet per second -- I converted them

9 to centimeters per second for application up in the

10 figure.

And so, for example, Central

12 Street to Oakton Street, the average velocity is

13 10.4 centimeters per second over that entire period.

14 Now, that's an average velocity that also includes

15 some storm periods, which would have higher

16 velocities.

So this average velocity is

18 probably unbalanced, a little higher than the

19 true .8 depth velocity in these reaches. So we're

20 kind of biased low in the centimeters per second, or

21 biased as a little bit high here.

But we could see that -- just

23 reading off the chart for these average velocities,

24 we can get the B20 metric. And essentially all the

118

1 other habitat suitability metrics have these similar

2 figures to this, either with a combination of lines

3 or curves, or, in some cases, specific values for a

4 range of conditions.

Or in the case of substrate, a

6 labeling of this substrate gets this index. So it's

7 not like this is overly complicated or requires

8 complex training. It's more a matter of do you

9 have the physical information --

Q. Well, I think what I'm trying to

11 understand, we have spent a lot of time as a group

12 here in this room trying to learn how the QHEI

13 indices work and apply it to this. And I'm trying

14 to understand why you have turned to a completely

15 different model for looking at the system and how

16 it's relevant to what we're looking at.

A. Well, again, my reason --

Q. Is it better?

A. Well, no, it's additional information.

The IEPA talked about a weight of

21 evidence, this is also information that could or

22 should be considered. And again, I have no idea

23 what community is supposed to result based on these

24 regulations.

119

But it has been mentioned -- three

2 species of fish were mentioned, so I just wonder.

Q. You were just curious, so you went and

4 looked?

A. I was curious.

Q. Okay.

A. Is it reasonable to expect these fish

8 to inhabit this waterway in substantial numbers.

Q. Right. And --

A. If not, why set up DO criteria to

11 support them?

Q. And so, is it your conclusion, then,

13 it's not reasonable?

A. Other then adult Large Mouth Bass, it

15 is my conclusion that early life stages of those

16 three species and adults of Small Mouth Bass and

17 Channel Catfishes would not find it as their

18 preferred habitat, based on habitat suitability

19 ratings.

20 BY MR. ETTINGER:

Q. Excuse me. As our presence in this

22 room shows, creatures sometimes do things that they

23 don't prefer.

Is it possible that some of these

120

1 fish are, in fact, in the system, even though they

2 are not in their preferred habitat?

A. Well, the data indicates otherwise.

Q. Are you saying there are no Small

5 Mouth Bass in the system --

A. I'm saying there are very few.

Q. Excuse me. If you'll let me finish

8 I'll let you finish.

I'm just saying are you saying

10 there are no Small Mouth Bass in the system?

A. I'm not saying that. I'm just saying

12 there are very few.

Q. Okay.

A. Far more Large Mouth Bass.

Q. How did the Small Mouth Bass that are

16 there get there?

A. My guess is that they're coming -- at

18 least some of them, are coming from Lake Michigan.

19 My evidence for that is that Small Mouth Bass, in

20 the District sampling data, are the fourth-most

21 abundant fish in the Calumet River upstream of

22 O'Brien Lock and Damn. Large Mouth Bass are the

23 third most abundant.

Q. So it's your testimony that there is

121

1 no breeding of Small Mouth Bass going on in the

2 Chicago area waterway system?

A. It is my testimony that there is no

4 evidence of breeding and that they wouldn't find it

5 as a preferred habitat.

Q. Are you aware of any findings of early

7 life stages of Large Mouth Bass in the Chicago area

8 waterway system?

A. It hasn't been presented in the

10 statement of reasons for the IEPA testimony.

Q. So your understanding is there is no

12 evidence of early life stages of Large Mouth Bass

13 anywhere in the Chicago area waterway system?

MR. ANDES: In the record?

15 BY THE WITNESS:

A. In the record?

MR. ETTINGER: Fred, I'd like him to

testify.

MR. ANDES: I'm not testifying, I'm

talking to my witness.

MR. ETTINGER: Well, we'll go on.

Could you read back the question,

please?

122

(WHEREUPON, the record was

read by the reporter.)

3 BY THE WITNESS:

A. And my answer is in the documents put

5 forward to us by the Illinois EPA, no such evidence

6 has been presented.

7 BY MR. ETTINGER:

Q. Are you aware of evidence of Channel

9 Catfish anywhere in the system?

A. Yes. There are some Channel Catfish.

11 Again, not many.

Q. Where do you believe the Channel

13 Catfish are coming from?

A. I do not know.

Q. Okay.

A. Because they are also not found in

17 much population in the tributary water bodies, as

18 well.

Q. Is it possible that there are portions

20 of the Chicago area water system that have habitat

21 for some of these species even though the system as

22 a whole may be very poor for them?

A. Now, you're talking about the CAWS

24 itself or its tributaries?

123

Q. Well, let's do it both ways. Do you

2 want to include just the CAWS itself?

A. Well, I would say that tributaries,

4 such as the North Branch outside of the CAWS, Little

5 Calumet and its various tributaries, are more likely

6 to have appropriate habitat for early life stages of

7 these fish.

Q. Okay.

A. However, again, the fish data from the

10 '90s and with this decade are not showing many

11 numbers of those fish in those tributaries, and

12 again, no evidence of early life stages.

Q. Well, let us -- can electrofishing

14 equipment sample early life stages?

A. I would believe so, yes.

Q. You believe it can?

A. Yes.

Q. You believe that electrofishing

19 equipment can sample early life stages?

A. Yes.

Q. Is early -- is electrofishing -- is

22 electrofishing equipment as effective at sampling

23 early life stages as it is other stages of fish?

A. I would think it would be more

124

1 effective.

THE HEARING OFFICER: Dr. Melching, we

can't hear you.

THE WITNESS: Sorry.

5 BY THE WITNESS:

A. I would think it would be more

7 effective. Because small fish have less ability to

8 withstand the shock.

MR. ETTINGER: Thank you.

10 BY MS. WILLIAMS:

Q. I think you've answered maybe part of

12 Question 24, but let me finish it up here.

THE HEARING OFFICER: You know what,

before we go to that, it's ten after 12:00.

Why don't we go ahead and take an hour for

lunch and be back here by about 1:10.

We can go off the record.

(WHEREUPON, discussion was had

off the record.)

THE HEARING OFFICER: See you at 1:10.

Thank you.

(WHEREUPON, a recess was had

until 1:10 p.m., this date.)

125

ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF:

)

4 WATER QUALITY STANDARDS AND ) R08-9

5 EFFLUENT LIMITATIONS FOR THE ) Rulemaking - Water

6 CHICAGO AREA WATERWAY SYSTEM )

7 AND LOWER DES PLAINES RIVER )

8 PROPOSED AMENDMENTS TO 35 ILL. )

DATE: 11/17/08

TIME: 1:20 p.m.

126

1 APPEARANCES:

MS. MARIE TIPSORD, HEARING OFFICER,

MS. ALISA LIU, Environmental Scientist,

MR. ANAND RAO, Senior Environmental Scientist,

MR. G. TANNER GIRARD, Acting Chairman,

MR. SHUNDAR LIN,

MS. ANDREA S. MOORE,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

217-782-5544

MS. DEBORAH WILLIAMS,

MS. STEPHANIE DIERS,

MR. SCOTT TWAIT,

MR. ROY SMOGOR,

127

1 APPEARANCES (cont'd):

ENVIRONMENTAL LAW & POLICY CENTER,

35 East Wacker Drive, Suite 1300

Chicago, Illinois 60601-2110

312-795-3707

MR. ALBERT F. ETTINGER,

MS. JESSICA DEXTER;

BARNES & THORNBURG, LLP,

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

312-357-1313

MR. FREDRIC P. ANDES,

appeared on behalf of the Metropolitan

Water Reclamation District;

ECOLOGICAL MONITORING AND ASSESSMENT,

3206 Maple Leaf Drive

Glenview, Illinois 60026

847-564-9905

MR. IRWIN POLLS.

128

THE HEARING OFFICER: Let's go back

on the record. And, Ms. Williams, I think

we're back with you.

DR. CHARLES S. MELCHING,

5 called as a witness herein, having been previously

6 duly sworn and having testified, was examined and

7 testified further as follows:

EXAMINATION (Resumed)

9 BY MS. WILLIAMS:

Q. I'm going to turn to Question 13. I

11 think that was the earlier question that we skipped

12 over.

"Explain why you think

14 contaminated sediment prevents the CAWS aquatic

15 life, you say, from being attainable. The same

16 question for CAWS aquatic life Use B."

A. In my testimony, I do not discuss

18 sediment contamination, nor have I reviewed such

19 data. When I speak of poor substrate, I'm talking

20 about the geomorphologic condition, sediment sizes

21 and variation of sediment size.

Q. Okay.

A. And that, then, ties into the table

24 that Fred previously distributed.

129

Q. Thank you. Question 14.

"On Page 9 of your testimony, you

3 compare values of Macroinvertebrate Index or MBI

4 between macroinvertebrate samples collected with a

5 hand-operated grabbing apparatus from bottom

6 sediments to those obtained passively from

7 artificial substrates that are placed in water left

8 to be colonized and then removed several weeks

9 later. You conclude that the difference between the

10 MBI values shows that, quote, 'CAWS substrate

11 prevents any further improvements in water quality

12 from translating to a better macroinvertebrate

13 community that will not likely result in

14 improvements in aquatic life use.'"

Is it your testimony that this

16 condition, as you describe it, is irreversible?

A. Yes, it's my testimony that this

18 condition is irreversible. The reason is that, as

19 I've explained earlier, the substrate didn't result

20 from natural geomorphic processes.

It lacks the right type of

22 sediment types and diversity among these types to

23 make a good habitat for macroinvertebrates.

Q. How would you define the aquatic life

130

1 use potential at the CAWS aquatic life Use A waters?

A. It is not the purpose of my testimony

3 to propose an aquatic life use classification to the

4 CAWS. The development of such a classification

5 would require an extensive study of all current

6 biological data and the collection of additional

7 supported data.

Limno-tech is currently doing such

9 a study to determine the biological condition of the

10 CAWS under contract the Water Reclamation District.

11 I recommend that the IPCB wait for the results of

12 that study before finalizing aquatic life use

13 classification of the CAWS.

Q. Do you think the Agency's proposal in

15 expecting these waters to support a balance healthy

16 benthic community?

A. The rulemaking proposal before the

18 Board is requiring that the CAWS meet, in certain

19 critical aspects, the general use dissolved oxygen

20 standards in Rule R04-25. The general use standards

21 are required for an aquatic community that meet the

22 Clean Water Act goals.

A balanced, healthy benthic

24 community would meet the Clean Water Act goals.

131

Q. Does the dissolved oxygen standard

2 proposed relate in any way to the benthic community?

3 Is it designed at all to protect the benthic

4 community?

A. Well, it should have been. Because

6 having a balanced aquatic community requires a good

7 benthic, as well.

Q. Do you know anything about the

9 benthic -- the dissolved oxygen needs of the benthic

10 community in this system?

A. What it is now or what it's supposed

12 to be?

Q. The potential. I should say the

14 potential. Let me ask this a different way.

Doesn't the USEPA national

16 criteria for dissolved oxygen focus on fish needs?

A. For the most part, yes. But it does

18 also comment about needs of the invertebrates. But

19 it assumes that if fish needs are met, the

20 invertebrates needs also are met.

Q. Thank you.

Question D asks, "Are comparisons

23 of MBI values between two macroinvertebrates samples

24 valid if one sample was collected actively with a

132

1 hand-operated grabbing apparatus from bottom

2 sediments and the other sample was collected

3 passively from artificial substrates?"

A. Basically, in my reasoning, I followed

5 the logic of the contractor for the use

6 attainability analysis from the Lower Des Plaines.

7 They made similar conclusions to those in my

8 testimony with comparing macroinvertebrate samples

9 collected by Hester-Dendy samplers and Ponar graph

10 samplers in the Lower Des Plaines River.

So if we look at Attachment A to

12 the rulemaking proposal before the Board, on Page

13 514 it is stated, "The greater taxa richness percent

14 EPT abundance and percent tolerant organisms

15 collected on artificial substrates indicate that

16 water quality can support a more diverse benthic

17 community if aquatic habitat was available."

So they made a similar conclusion

19 that --

Q. Is that the same, the EPT taxa as an

21 MBI?

A. Well -- all right. If we go on

23 further in their discussion, comparison of MBI

24 results between Hester-Dendy samplers and Ponar

133

1 samplers on Pages 516 and 517 that implies that the

2 MBI results mirrors the results suggested on the

3 basis of individual metrics.

So the three things I mentioned

5 before are metrics and assumed and beyond. Not the

6 total MBI --

Q. Right.

A. -- but the portions of it.

Q. So is it your testimony that the MBI

10 includes EPT taxa as a subset?

A. Well, percent EPT.

Q. So you're saying that percent EPT is a

13 metric in the MBI?

A. That's what I thought.

Q. Do you know what the MBI was designed

16 to show?

A. That was supposed to be an indicator

18 of water quality.

Q. And was it designed to indicate

20 habitat conditions?

A. It was designed to describe the health

22 of the community relative to water quality.

Q. Water quality. Okay.

Would you -- would it be a normal

134

1 methodology to take macroinvertebrate samples from

2 the fine bottom sediment in calculating an MBI?

A. That is one way it is done.

Q. What other ways could it be done?

A. The other way is, what was it then

6 that placed the artificial substrate --

Q. But when you --

A. -- Hester-Dendy sampler?

Q. But when you're taking from the actual

10 substrate, you would go to the fine bottom sediment,

11 that would be where you would take the samples from?

A. If there are fine bottom sediments.

Q. How do you know that if the water

14 quality conditions were to improve in the CAWS that

15 the MBI wouldn't also improve?

A. Well, we can look at some of the

17 locations. So for a number of the locations -- and

18 I think we have a couple more tables here.

MR. ANDES: Yes, we do.

THE WITNESS: Let Fred distribute them

out.

THE HEARING OFFICER: I've been handed

information from Melching Response to IEPA

Question 14G. If there's no objection, we'll

135

mark this as Exhibit 174.

Seeing none, it's Exhibit 174.

(WHEREUPON, a certain document was

marked Exhibit No. 174 for

identification, as of 11/17/08.)

6 BY THE WITNESS:

A. So the numbers you see in this table

8 are taken from the UAA study. And so these are --

THE HEARING OFFICER: Dr. Melching,

just to clarify, that's the CAWS UAA?

THE WITNESS: The CAWS UAA.

Thank you.

13 BY THE WITNESS:

A. So MBI values between 6.1 and 7.5

15 indicate fair conditions. And MBI values less than

16 or equal to six indicate good conditions for water

17 quality.

Whereas, MBI values less than

19 nine, the Ponar indicates very poor water quality.

20 So at these locations we have good to fair water

21 quality.

In the Hester-Dendy samplers,

23 water quality sufficient to support a fair to good

24 biotic macroinvertebrate community on those

136

1 artificial samplers. But in the sediment itself,

2 the very, very poor -- very poor -- too many

3 poors -- very poor community exists.

MR. ANDES: More than nine.

5 BY THE WITNESS:

A. Because it's more than nine, yeah,

7 it's greater than nine.

8 BY MS. WILLIAMS:

Q. Weren't the macroinvertebrates

10 obtained on the artificial substrates already

11 present elsewhere in the stream before the sampling?

A. Hester-Dendy samplers are colonized by

13 macroinvertebrates drifting along the flow. As

14 such, these macroinvertebrates could have originated

15 far upstream on the tributaries or from

16 Lake Michigan or even the seep of station pools.

"For example, in the assessment of

18 benthic macroinvertebrates in the Lower Des Plaines

19 River, it was noted that the increase in taxa

20 richness from Lockport to the Brandon Pool is likely

21 the result of drift organisms from the Upper

22 Des Plaines River that enters the system in the

23 Upper Brandon Pool." This is Page 57 of

24 Attachment A.

137

"The fact that these invertebrates

2 did not also colonize the bed is evidence of poor

3 substrate."

Q. If one finds relatively tolerant

5 organisms living in the fine bottom sediment of the

6 stream, does this finding necessarily mean that the

7 physical habitat of the stream cannot support

8 biological potential consistent with the Clean Water

9 Act aquatic life goal?

A. The goal of the Clean Water Act is to

11 protect and maintain the physical, chemical and

12 biological integrity of the nation's waters. Thus

13 the Clean Water Act aquatic live use goal is

14 biological integrity.

And biological integrity has

16 generally been defined as balanced communities of

17 tolerant and intolerant species of fish and taxa of

18 macroinvertebrates. High IBI scores and low MBI

19 scores representing high quality aquatic communities

20 result in intolerant species and taxa dominant the

21 aquatic community. For example, in the UAA report

22 for the CAWS Attachment B will make the proposal.

The following is stated on

24 Page 4-38, "In a healthy stream, the benthic

138

1 community will include a variety of pollution

2 sensitive macroinvertebrates, while in an unhealthy

3 system there may be only a few types of nonsensitive

4 and tolerant macroinvertebrates present. Further,

5 if intolerant macroinvertebrates can colonize

6 artifical substrates but not the actual substrate in

7 the sediment bed, the lack of intolerant

8 macroinvertebrates implies the balanced benthic

9 community cannot be supported by the actual

10 substrates."

Q. That's if you can't find them on the

12 artificial substrate; right?

A. No. That's if you can find them on

14 the artificial substrate.

Q. Can you read the last part of that

16 quote again?

A. "The lack of intolerance." Oh, yeah,

18 you're right, if you can't find the --

Q. Thank you.

A. -- in the sediment bed, but not the

21 actual sediments.

So actually you can find the

23 macroinvertebrates on the artificial substrates but

24 not the actual substrates.

139

Q. I haven't asked Question H.

"What are the water column

3 physical and chemical requirements, the

4 macroinvertebrate taxa that potentially can live in

5 the CAWS?"

A. Well, because you say "can potentially

7 live in the CAWS" --

Q. Right.

A. -- this is a very big question.

Q. Does that mean it has a long answer?

A. Yes, of course.

Q. Okay.

A. But it's a very big question that

14 could not be answered without a very detailed study

15 of the physical, hydraulic and chemical conditions

16 of the CAWS that is beyond even the current study

17 being done by Limno-tech to determine the biological

18 potential for the CAWS. The reason I say beyond the

19 Limno-tech study is that Limno-tech is focusing on

20 taxa that are important to the nonwadable habitat

21 index developed in Michigan and being calibrated for

22 the CAWS.

In this index, key

24 macroinvertebrate indices include percent

140

1 Caddisflies, EPT, which is the combination of

2 Mayflies, Stoneflies and Caddisflies taxa richness,

3 true flies taxa richness, Stoneflies taxa richness

4 and total taxa richness. To get an answer to this

5 question with respect to key macroinvertebrate taxa,

6 I recommend that the IPCB wait for its results of

7 Limno-tech study.

MR. ANDES: So, if I can clarify,

Dr. Melching, you're saying that the

Limno-tech study will give results basis in

key taxa, but if the question is how are we

going to determine the requirements for all

taxa, that would be a bigger study?

THE WITNESS: Yes.

MR. ANDES: Okay.

16 BY MR. ETTINGER:

Q. Can I just ask a question about the

18 nonwadable stream study in Michigan? Is this

19 something new that's being developed?

A. Well, this is -- Limno-tech is doing

21 an ongoing evaluation of the habitat potential of

22 the CAWS under contract with the District. An exact

23 timing when it would be completed, I do not know.

Paul Friedman is the senior

141

1 advisor on that, and you'll have a chance to meet

2 him later.

Q. Are IBI studies normally done for

4 nonwadable streams?

A. IBI studies?

Q. Right.

A. Well, there are IBI indices available

8 for nonwadable streams. One has been developed in

9 Wisconsin and one has been developed in Ohio.

10 BY MS. WILLIAMS:

Q. So just one more question on this,

12 follow-up.

Do you know, with regard to Ponar

14 grab sampling, is this type of sampling selective

15 for fine particle sediment? This is a follow-up.

Do you know if Ponar grab samples

17 can adequately sample for coarser grain materials in

18 the substrate?

A. Well, I'm not sure I understand the

20 second part of your question.

Q. Okay. The first part would be fine if

22 you could answer.

A. Yes, they are used for fine grain

24 sediment --

142

THE HEARING OFFICER: Dr. Melching --

THE WITNESS: Yes.

THE HEARING OFFICER: -- we can't hear

you.

5 BY THE WITNESS:

A. Yes, they are used for fine grain

7 sediments.

8 BY MS. WILLIAMS:

Q. Can you explain why?

A. A way to get these -- get a sample up.

11 For example, in wadable streams, it's common for the

12 coarser grain sediments to physically sieve the

13 sediments in place and scrape off the bottoms of

14 rocks and other things to mobilize the -- okay.

MR. ANDES: Don't talk to her.

16 BY THE WITNESS:

A. So for coarser grain sediments, people

18 have a tendency more to use, as I say, a sieve-type

19 device or a mesh, place it downstream of where the

20 sediments are taken and to physically agitate the

21 bed and turn over rocks and sweep off material and

22 let it be caught by the mesh. And the sample is

23 taken back for classification.

For finer grain sediments, there

143

1 are not any rocks to turn over. You need to have a

2 larger chunk of the bed to evaluate.

3 BY MS. WILLIAMS:

Q. And in a nonwadable stream, wouldn't

5 you use Hester-Dendy sampling to replace the sieve

6 method?

A. Well, not necessarily replace the

8 sieve method. But in the absence of -- sorry.

Not necessarily just to replace it

10 because you would also be able to use the Ponar

11 samples under that nonwadable situation.

12 BY MR. ETTINGER:

Q. Can I just ask what's a Ponar?

A. Well, it's, basically, for lack of a

15 better word, a bucket-like device that you drop to

16 the bottom that you use to -- not necessarily round.

17 But you drop it to the bottom, you let it sink in a

18 little bit, close the trap and you bring it back up

19 to the surface with sediment samples, hopefully, the

20 invertebrates inside.

Q. Does Ponar -- do you use Ponar

22 sampling for hard sediments?

A. Hard sediments? What's your

24 definition of hard sediments?

144

Q. Rocky bottoms.

A. Well, the typical natural stream with

3 a rocky bottom isn't going to be deep enough that

4 you would need to use -- sorry. Typical rocky

5 bottoms of cobbles, gravel, don't flow -- generally,

6 don't flow so deep that you would need to use a

7 Ponar that you can, under low flows, go in and wade.

Q. Well, let's say, for example, we had a

9 system, imagine, in which it was a channel that was

10 blasted through rock that had a rocky bottom --

A. Yeah, but this rocky bottom --

Q. Well, excuse me.

A. -- is a hard rocky bottom.

Q. Yeah.

A. It's not like a bunch of cobbles.

Q. I understand my mind moves so slowly

17 that you think you can anticipate my end of my

18 question. It will, nonetheless, make for a clearer

19 record if you let me finish.

If you had such a system, would

21 you use a Ponar to sample it?

A. So in this -- for example, in the

23 Sanitary and Ship Canal and the Cal Sag Canal

24 portions that were cut out of rock?

145

Q. If you had a hard bottom, could you

2 use a Ponar to sample it?

A. I don't think you would get much good

4 result by doing that. Because there's no sediment

5 down there to collect.

MR. ANDES: Is that what you were

asking?

MR. ETTINGER: Frankly, I've forgotten

what I was asking, we got a little off

course.

11 BY MR. ETTINGER:

Q. But let's imagine that that channel

13 had been eroded over, say, 80 years and had fissures

14 and things in it. How would that affect your

15 ability to use a Ponar?

A. Well, again, since Ponar is collecting

17 loose sediment on the bottom -- not really loose,

18 but finer grains of sediment on the bottom -- and,

19 for the most part, the Sanitary and Ship Canal is

20 absent of those, it wouldn't work very well.

Q. Did you look?

A. Did I look?

Q. Yes.

A. In what --

146

Q. Did you look if there was any loose

2 sediment on the bottom of these 80-year-old

3 channels?

A. I know from experience, from people

5 who have dived the Sanitary and Ship Canal in the

6 city of Romeoville and Lemont, which is where the

7 acoustic velocity meters are, that there is almost

8 no sediment on the bottom. It is still primarily a

9 rock -- solid rock in those locations.

Q. Have you looked at the sides of the

11 Sanitary and Ship Canal or the Cal Sag recently?

A. Well, again, at those locations where

13 I've talked to people who have dived -- again, at

14 those locations where I've talked to people that

15 have dived, that is what they have reported to me,

16 that there is no appreciable sediment.

Q. And it is your understanding that

18 there are no fissures in the walls on any of those

19 channels?

A. I don't know about fissures in the

21 walls, I'm saying there is no sediment.

Q. There is no sediment?

A. No appreciable sediment.

MR. ETTINGER: Thank you.

147

1 BY MS. WILLIAMS:

Q. What about submerged logs or other

3 types of potential...

A. I think not.

Q. You don't think there's any logs?

MR. ANDES: I don't know if you can

talk with each other.

8 BY MS. WILLIAMS:

Q. And that -- I mean, when you talked

10 about people who have dived -- dove -- divers, are

11 your -- is your testimony about almost none

12 applicable to the North Shore Channel? Are you

13 referring to the North Shore Channel?

A. Almost none with respect to what

15 aspect of my testimony?

Q. Bottom sediments. Well, and also

17 logs. I had just asked about logs specifically,

18 too.

A. Okay. Well, my reference relative to

20 logs there was with regard to the Sanitary and Ship

21 Canal, Cal Sag Channel.

Q. What is your knowledge of the types of

23 substrates in the North Shore Channel?

A. I believe it's primarily silt and clay

148

1 and sand deposits from the lakes, which came before

2 Lake Michigan and consolidated over time.

Q. And do you know if there are any

4 submerged logs or cobbles or bolders there?

A. Not to my knowledge.

Q. What about the Calumet River?

A. Calumet River?

MR. ANDES: Little Calumet or

Calumet, or which parts are we talking about?

10 BY MS. WILLIAMS:

Q. The Little Calumet, north.

A. I don't know.

MR. ANDES: Well, let me ask.

The Little Calumet River North is

the part that was cut out; am I right?

THE WITNESS: Yes. It's the part that

was widened and deepened to permit shipping

traffic.

MR. ANDES: Thank you.

20 BY MS. WILLIAMS:

Q. And it's your testimony you're not

22 aware -- what is your testimony with regard to that

23 substrate that's found there?

A. Well, with regard --

149

Q. I'm sorry if I missed it.

A. Well, I thought you were asking about

3 logs. And my testimony is I don't know if there are

4 any logs present on the basin.

Q. You don't.

A. But with regard to what the substrate

7 is, again, it's a similar silt, sand, clay mixture,

8 as for the North Shore Channel. Because it's dug

9 through similar lacustrine deposits.

Q. And the Calumet Sag Channel?

A. Well, for much of it, it is dug

12 through the solid limestone.

Q. And do you know if there are any

14 submerged logs, cobbles, bolders, et cetera, there?

15 Bridge abutments maybe?

A. In the rock portions, I would expect

17 that it also has very little sediment. With regard

18 to logs, I don't know whether there are logs down

19 there.

Q. Question 15 asks, "Can you explain why

21 you testify on Page 10 that the Agency's designated

22 aquatic life uses did not take in account the full

23 velocity in the CAWS?"

A. In my testimony, the discussion of

150

1 flow velocities was in relation to Rankin's 1989,

2 Page 24, observation that sites with fast currents

3 had higher IBI scores than expected by channels.

4 That is high velocity results in higher IBI scores

5 and low velocity results in lower IBI scores, i.e.,

6 a less diverse fish community.

Q. Did you cite to a page number?

A. Twenty-four of the 1989 report.

Q. Are the water velocities too low in

10 the CAWS to support the aquatic life uses purposed

11 by Illinois EPA?

A. Basically, as I mentioned before, my

13 use of one foot per second and .4 feet per second

14 was an attempt to define load velocities relative to

15 your high versus low. And as noted in my testimony,

16 these velocities are very low compared to the reach

17 average velocity in the USGS database.

Thus, the flow velocities in the

19 CAWS are substantially smaller than those found in

20 natural streams throughout Illinois. This, in

21 addition to other physical features of the CAWS,

22 indicates that the CAWS is far from a natural

23 stream. And to expect it to support similar

24 biological communities as natural streams makes

151

1 little sense.

With respect to the aquatic life

3 uses, this question is difficult to answer, because

4 in the statement of reasons and in their testimony,

5 the IEPA has not explicitly described the benthic

6 macroinvertebrate in fish communities they expect to

7 be supported by the proposed aquatic life use.

8 However, if we consider the dissolved oxygen

9 standards, the proposed aquatic life use standards

10 equal, in certain critical aspects of general use

11 dissolved oxygen standards in the Illinois recently

12 adopted rules, then we can assume that IEPA expects

13 the type of benthic macroinvertebrate in fish

14 communities that would occur in the natural general

15 use waters of the state, such an expectation is

16 highly unrealistic for a nonnatural waterway system

17 of a substantially degraded physical habitat, that

18 is the CAWS as described in my testimony.

Q. Are all streams that have an average

20 water velocity of less than four feet per second

21 incapable of attaining the Clean Water Act aquatic

22 life use goal?

A. As I just said, in my testimony --

MR. ANDES: I'm sorry. Can I clarify?

152

Zero point four?

MS. WILLIAMS: Zero point --

MR. ANDES: I think he said four.

MS. WILLIAMS: Zero point four, sorry,

feet per second. Sorry.

6 BY THE WITNESS:

A. So as I said before, my discussion

8 of .4 feet per second is just, again, to try to draw

9 the line of what is high and what is low.

10 BY MS. WILLIAMS:

Q. So can some streams lower than that be

12 capable of attaining the water -- the Clean Water

13 Act goal, or no?

A. Yes.

MR. ANDES: Why do you believe that,

in this case, the velocity is a factor in why

the CAWS can't achieve those goals?

THE WITNESS: Well, if we look at some

of the -- again, if we look at the fish

species from the habitat suitability index,

for Large Mouth Bass, the low velocities for

adults is their preference. But for early

life stages, as you saw on the table we

passed out earlier, it's not so preferred to

153

have -- even velocities as low as the CAWS

are not low enough for them.

And for the other Channel Catfish

and for Small Mouth Bass -- well, Channel

Catfish also likes low velocity, but there

are other aspects of the physical habitat

that it doesn't like.

8 BY MS. WILLIAMS:

Q. Is one of those aspects --

A. Some fish like low velocities, others

11 don't. So it depends again on what the target is.

MR. ANDES: So your discussion of

what's attainable here is based on velocity

and a combination of other factors?

THE WITNESS: Yes. Velocity and other

factors.

So, in effect, what I was trying

to do when I was looking at the QHEI is -- in

my first look at how things were classified

by QHEI, it seem like some of the quasi rules

in some of Rankin's earlier publications were

not completely followed. And so --

MR. ANDES: Followed by IEPA here?

THE WITNESS: Followed by IEPA and a

154

recommendation before the Board. And, of

course, these hard and fast rules that any

number of QHEI below some threshold or above

some threshold should be this way or that,

you know, Rankin says, well, you know, there

are other -- you need to consider the

individual metrics, as well. Velocity being

one of the metrics.

And the comment he made about

velocity is that high velocities generally

are correlated with better IBI low with lower

IBI. And so I kind of tried to break down,

and we'll probably touch upon it in other

questions --

MS. WILLIAMS: Yeah, we're going to

have to jump ahead because of how -- because

I think if we're going to talk in this much

detail about this document -- so let's jump

ahead to Question 20.

20 BY MS. WILLIAMS:

Q. "On Page 11 in reference to physical

22 habitat in the CAWS, you state six features of

23 stream physical habitat as being determined by QHEI

24 documentation, Rankin 1989, to be, quote, 'Primary

155

1 features of a modified warm water stream.' Can you

2 please identify where these six factors are

3 designated as primary factors?"

A. Well, the term "primary features" is

5 my term to the features that appear in Exhibit 5 of

6 the testimony, which is Table 8 from Rankin 1989.

7 My feeling was to who on this list makes these

8 features among myriad of possible habitat features

9 important or primary features.

Rankin further divided these

11 features into high influence and moderate influence.

12 Among the ones discussed in my testimony, three are

13 high influence, out of only four high influence

14 features for non -- water streams and three are

15 moderate influence features.

Q. Go ahead and explain which ones are

17 actually high influence features.

A. I have to grab the right page here.

So I would say in Rankin's table,

20 he calls it recent channelization, I call it

21 permanent channelization. That was high influence.

Number two, silt and muck

23 substrates is considered a high influence feature.

24 The third high influence feature is cover sparse to

156

1 none.

The moderate features are the low

3 to no sinuosity. The fair to poor --

THE COURT REPORTER: I'm sorry, I

can't hear you.

6 BY THE WITNESS:

A. The moderate features are the low to

8 no sinuosity, the fair to poor pool and ripple

9 development and the lack of fast current. That

10 would be referring to the velocity issues.

THE HEARING OFFICER: Just for the

record, for point of clarification, and

forgive me, I'm having a hard time, the 1989

Rankin document was in the record with part

of the IEPA proposal; wasn't it?

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

have copies if you want to enter it. It

seems appropriate to enter it.

THE HEARING OFFICER: Okay. I

misunderstood. I thought it was already a

part of the record.

Yeah, I do think we need to put

that in the record.

MS. WILLIAMS: I do. I mean, it

157

wasn't attached, was it, to your testimony,

Dr. Melching?

MR. ANDES: We have Table 8 of Rankin

as an exhibit to his testimony.

If she wants to go ahead and

introduce it as a separate exhibit.

THE HEARING OFFICER: That might work

easier, since we're talking about it so much

right now.

MS. WILLIAMS: I think it's a very

important document. When I looked through

and I couldn't find it in the list, I thought

we should probably have it in.

THE HEARING OFFICER: I have been

handed the Qualitative Habitat Evaluation

Index Rationale, Methods and Application,

November 6th, 1989, Edward T. Rankin, for the

State of Ohio Environmental Protection

Agency. If there's no objection, we will

mark this as Exhibit 175.

Seeing none, it's Exhibit 175.

And I will note that it is also a part of

Exhibit 170.

MR. ANDES: Yes.

158

(WHEREUPON, a certain document was

marked Exhibit No. 175 for

identification, as of 11/17/08.)

MR. ANDES: So it's really important.

5 BY MS. WILLIAMS:

Q. Question 18 in Exhibit 5 included --

7 at the end of your testimony you provide a table

8 entitled, quote, "Habitat Characteristics of

9 Modified Warm Water Streams," and in quotations,

10 "Warm Water Aquatic Life Use A, and Warm Water

11 Streams," and in parenthesis, "(General use waters

12 in Ohio)."

When you use the term "warm water

14 aquatic life Use A," are you talking about the

15 Chicago area waterway system aquatic life Use A

16 waters as defined in the Agency's proposal?

A. Yes.

Q. What causes you to conclude the

19 Agency's CAWS aquatic life Use A designated use is

20 equivalent to Ohio's modified warm water aquatic

21 life use?

A. I base my conclusion on the QHEI

23 values for the various reaches assigned to the CAWS

24 aquatic life Use A designated waters. Rankin 1989,

159

1 which is when it was distributed, indicates that the

2 primary determinate for waters to be classified as

3 modified warm water habitat as having QHEI values

4 between 32 and 45.

However, waters with QHEI values

6 between 45 and 60 can be classified as modified warm

7 water habitat, depending on the nature of the

8 disturbance and whether it can be mitigated. These

9 rules that I'm referring to are for head water

10 streams with drainage areas of 20 square miles or

11 less.

Thus, strictly, these rules would

13 apply only to a portion of the North Shore Channel.

14 Rankin Attachment R to the rulemaking proposal

15 before the Board use a similar QHEI scale when

16 evaluating the CAWS.

For a QHEI between 46 and 59 is

18 rated fair and a QHEI between 30 and 45 is rated

19 poor. Thus I assume that poor equated to modified

20 warm water habitat and some fair could also be

21 considered modified warm water habitat, depending on

22 the nature of the disturbance and whether it could

23 be mitigated.

When I consider the QHEI values

160

1 for the locations in the waters designated Chicago

2 area waterway system aquatic life Use A --

MR. ANDES: And we have a table.

THE HEARING OFFICER: I've been handed

information for Melching Response to IEPA

Question 18A. If there's no objection, we

will mark this as Exhibit 176.

Seeing none, it's Exhibit 176.

(WHEREUPON, a certain document was

marked Exhibit No. 176 for

identification, as of 11/17/08.)

12 BY THE WITNESS:

A. If we look at this list of QHEI

14 values, five of the ten values fall in four -- or

15 modified warm water habitat range, four of the ten

16 values fall in low end of the fair range that could

17 be considered modified warm water habitat, taking

18 into account the lower extreme nature of the

19 individual metrics in the QHEI.

20 BY MS. WILLIAMS:

Q. Why do you testify that Illinois

22 general use designation is equivalent to Ohio's warm

23 water streams use here?

A. According to a document entitled

161

1 Summary of Ohio's Beneficial Use Designations, found

2 at the Ohio EPA website --

MR. ANDES: That's on our page of

websites.

5 BY THE WITNESS:

A. -- warm water habitat is defined by

7 the baseline regulatory requirements in line with

8 the Clean Water Act fishable goal expectations.

9 BY MS. WILLIAMS:

Q. Can you explain where the CAWS and

11 Brandon Pool aquatic life Use B would fit into your

12 table?

A. That's one of the subparts to which

14 question?

THE HEARING OFFICER: Eighteen C, I

believe, is where she -- she rephrased it

little bit.

THE WITNESS: Okay. I know where we

are.

MS. WILLIAMS: I didn't mean to. Oh,

I just skipped this stuff, yeah.

THE WITNESS: I know where we are.

23 BY THE WITNESS:

A. So, firstly, as noted in my testimony,

162

1 this is not my table. It comes from Page 41 of

2 Rankin 1989.

Secondly, I have not proposed a

4 Use C in my testimony, therefore, I cannot answer

5 any question regarding Use C that's coming.

6 BY MS. WILLIAMS:

Q. So your answer is you don't know where

8 Use B would fit, because it's not your table?

A. It's not my table.

Q. But you added to the -- I mean, maybe

11 I'm confused here. Let me take a look.

Okay. So -- I mean, this -- did

13 you add the title to it? I mean, this exact table

14 can't be directly from Rankin '89; right?

You didn't cut and paste it?

A. Well, I retyped it, that's about it.

Q. I mean, you added --

A. If I made a typo --

Q. Well, I'm not suggesting that. I just

20 know that Rankin '89 doesn't have warm water aquatic

21 life Use A in parentheses --

A. No.

Q. -- after -- so explain, just for the

24 record, what you added to that table.

163

A. Well --

THE HEARING OFFICER: Okay. Just --

because I'm really confused, and I think it's

because I need coffee this afternoon.

We're talking about Exhibit 5 to

Dr. Melching's testimony as compared to

Exhibit 41 -- or Page 41 of Exhibit 176 --

175; correct?

MS. WILLIAMS: Yeah.

10 BY THE WITNESS:

A. As you have correctly stated -- well,

12 Exhibit 5. As you have correctly stated, I added

13 the warm water aquatic life Use A after modified

14 warm water streams, that which is in parentheses.

MR. ANDES: In the heading.

16 BY THE WITNESS:

A. In the heading of the table.

I also added general use waters

19 after warm water streams in the heading. The rest I

20 think is, barring typographical errors on my part,

21 verbatim from Rankin.

22 BY MS. WILLIAMS:

Q. And I'm not trying to be difficult,

24 it's just confusing to us because we have not

164

1 equated these used in the way you have done, I don't

2 believe, to -- between Ohio and the proposal. I'm

3 just -- I'm not trying to be difficult, I'm just

4 trying to be clear.

Do you believe that the Ohio

6 aquatic life use designations have a fit you would

7 describe as matching the CAWS and Brandon Use B

8 waters, as we proposed them?

A. Well, I base my conclusion, again, on

10 the qualitative habitat evaluation index values for

11 the various reaches assigned to the CAWS and Brandon

12 Pool aquatic life Use B designated waters. Sorry.

Rankin 1989 indicates that the

14 primary determinant for waters to be classified as

15 limited resource water is having QHEI values less

16 than 32. This rule is for head water streams with

17 drainage areas of less than three square miles.

Less strictly, this rule would

19 apply only to a small portion of the North Shore

20 Channel. Rankin 2004 Attachment R to the rulemaking

21 proposal used a similar QHEI scale when evaluating

22 the CAWS for a QHEI of less than 30 was rated very

23 poor.

Less I assume that very poor

165

1 equated to limited resource water. And I

2 consider --

MR. ANDES: Another table.

THE HEARING OFFICER: I've been

handed, information from Melching's Response

to IEPA Question 18B. If there's no

objection, we will mark that as Exhibit 177.

Seeing none, it's Exhibit 177.

(WHEREUPON, a certain document was

marked Exhibit No. 177 for

identification, as of 11/17/08.)

12 BY THE WITNESS:

A. So when I consider QHEI values to the

14 locations in the water designated CAWS and in

15 Brandon Pool aquatic life Use B, listed below, five

16 of the ten values fall in the very poor limited

17 resource water range. Two of the ten values fall in

18 the low end of the poor range, that could be

19 considered limited resource water taking into

20 account the lower extreme nature of the individual

21 metrics in the QHEI.

22 BY MS. WILLIAMS:

Q. Dr. Melching, Exhibit 177,

24 Exhibit 176, both have lists of QHEI values that you

166

1 relied on. What's the source of the data there?

A. The use attainability analysis report.

Q. Which one?

A. For the CAWS. Attachment B.

Q. Attachment B, okay.

Did you look for any other source

7 of QHEI values for your tables?

A. Well, I am aware that in the IEPA

9 testimony there was some discussion that some of

10 these values have been recalculated. And so I

11 inquired from the District what were the appropriate

12 numbers and the values I got back -- I'll take a

13 look at one of my other -- a couple site changes

14 were suggested, but those changes didn't make much

15 sense to me.

Q. Are you referring to typos?

A. I'm not -- I'm not referring to --

18 supposedly we heard that some of the sites were

19 recalculated.

Q. From Attachment B, specifically, which

21 is what we --

A. Yeah, that is what I heard or I

23 remembered seeing --

Q. Okay.

167

A. -- mentioned in the abstract of the

2 testimony from the Agency.

Q. And what data or information do you

4 base your testimony on Page 11 that the physical

5 habitat of the Calumet Sag Channel and that of the

6 CAWS aquatic life Use B are not substantially

7 different?

A. Hydraulic and morphology of the

9 Calumet Sag Channel and Chicago Sanitary and Ship

10 Canal, which is in the CAWS aquatic life Use B, are

11 virtually identical. This is reflected in the QHEI

12 values that the similar waterways are similar.

The Calumet range from 37.5 to 42.

14 I agree with Dr. Makay, who states on Page 12 of

15 his -- small amount of rubble and crumbling of walls

16 does very little to improve the overall habitat of

17 fish and the -- I find the difference between the

18 CSSC and Calumet Sag Channel to not be substantial.

The ongoing study to determine the

20 biological potential for the CAWS being done by

21 Limno-tech by the WD should shed further light on

22 the difference between the CSSC and the Cal Sag

23 Channel.

Q. So you don't agree that there are

168

1 areas where people can wade that are shallow?

A. I don't think they make a substantial

3 difference.

Q. How much would there have to be for it

5 to be substantially different percentagewise? Would

6 there have to be a certain percentage of shallow

7 habitat?

A. I can't give you a number.

Q. Is it your testimony there's

10 insufficient physical habitat in the Cal Sag Channel

11 proposed by Illinois USEPA for this?

A. Nineteen A?

Q. Yes.

A. This question is difficult to answer,

15 because in the statement of reasons, IEPA has not --

16 benthic and fish communities they expect to be

17 supported by the proposed aquatic life use to

18 substantially be graded a physical habitat like the

19 Cal Sag Channel.

Q. Would you apply this concept to other

21 chemical parameters, that if a standard was proposed

22 for these waters that was the same as the general

23 use waters, then it must be that the aquatic

24 community being protected is the same. Or, for

169

1 example, would you take that same position that if

2 our standard for these waters is the same as general

3 use, to protect the exact same aquatic community or

4 you would have automatically proposed a different

5 standard?

A. All I'm commenting on is with regard

7 to dissolved oxygen, that if we are saying this is a

8 graded water body only capable of supporting

9 intolerant or moderately tolerant, moderately

10 intolerant -- I forget the exact words -- that

11 expecting or requiring general use DO doesn't make

12 much sense. That's what I'm saying. That's what

13 I'm testifying to.

Q. And you have said that adult Large

15 Mouth Bass are common to the system; correct?

A. Yes.

Q. Would you agree that the ultimate

18 dissolved oxygen standard adopted by the Board must

19 protect organisms as sensitive as the adult Large

20 Mouth Bass?

A. Yes. I would agree, but I would like

22 to turn the question around. Given that large --

23 Attachment B as dominant game fish, common game

24 fish, abundant game fish, that to dissolved oxygen

170

1 there must already be reasonable breeding for them,

2 otherwise they won't be able to achieve those names,

3 those descriptions.

Q. So would you recommend that the Board

5 ignore the signs?

MR. ANDES: Well --

MS. WILLIAMS: Let me finish the

question. If you want to object, you can

object.

MR. ANDES: I'll wait.

11 BY MS. WILLIAMS:

Q. And instead look at what's actually

13 occurring in the CAWS.

A. So what I'm saying is the national

15 criteria document is for general use fishable

16 waters. If the Agency is saying that this is not a

17 general use water, then it's inconsistent to require

18 DO standards that, in fact, exceed the national

19 criteria document of USEPA.

Q. And in what way is that?

A. In terms of the minimum of 3.5

22 relative to 3.

Q. So does the 1986 criteria document

24 dissolved oxygen then recommend a daily minimum of

171

1 3.5 milligrams per liter in some ways rather than

2 3.0? This is Question 21.

A. Well, I know. Page 38 of that

4 document.

Q. So you think that refers to dams?

A. It says manipulatable controlled

7 discharges and -- where's that? Here it is.

As I say, that's Page 38. They

9 mention 3.5, but in 37 and 38 it says under the --

10 what they call the criteria and manipulatable

11 discharges and where he's talking about Attachment X

12 to the statement.

Q. Have you reviewed the work that the

14 Agency and the Illinois Department of Natural

15 Resources conducted in developing Illinois general

16 use to general standard?

A. Question number?

Q. Thirty-two.

A. Yes. I have reviewed Rule R04-25 in

20 the statement of reason and the report by Wiles and

21 Garvey.

Q. Have you reviewed the report by the

23 Illinois Department of Natural Resources and the

24 Illinois Environmental Protection Agency? I can

172

1 hand you a copy and just ask you if you reviewed

2 this report.

A. I'm just -- I'm not sure. I don't

4 know how similar this is to Wiles and Garvey or not.

Q. This is not similar to Wiles and

6 Garvey. This is the Agency in response to Wiles and

7 Garvey.

A. Then I have not.

Q. You have not reviewed it.

Let's go back -- I skipped over

11 Question C of 19C.

And it was regarding the -- it

13 says, "Aren't the typical IBI scores a majority of

14 the CAWS and Brandon Pool B waters less than 20?"

And are you aware that Rankin 1989

16 states fish IBI scores below 20 are rarely caused by

17 habitat alone?

A. What is stated in the question is not

19 an exact quote from Rankin. The exact quote from

20 Page 9 is for impacts solely attributable to habitat

21 modification IBI scores rarely 20, regardless of B.

Q. Yes. So --

A. However, to understand the important

24 and habitat necessary to review the IBI fish

173

1 community quality scale from the UAA report

2 Pages 4-17, and so, IBI scores between 12 and 20 are

3 very poor. Between 20 and 29 are poor, between 30

4 and 39 are fair, between 40 and 49 are good and

5 between 50 and 60 are exceptional.

Thus, a community result for IBI

7 scores less than 20, however, the IEPA or the UAA

8 contractors have not offered any reduction in water

9 quality stress, such as that IBI will go above the

10 20 result in IBI scores referring the fair fish

11 community range. It includes all of the recent IBI

12 evaluations for the waters rated CAWS or aquatic

13 life Use A.

Q. I don't think I understand that

15 answer.

A. Well, maybe that sentence is not so

17 good. But I'm going to go forward to one of your

18 later questions, just because they're related to an

19 interpretation of the figures from Rankin.

Question 43.

Q. Before we do that, I just --

A. Well, I'm not done with my answer.

23 Can I finish?

Q. Well, you're not done, you said you're

174

1 answering it different later.

A. Well, these two questions are related.

3 The thing I'm trying to ask in the question -- okay,

4 the very poor range requires a combination of

5 habitat and water quality issues to be less than 20

6 to be very poor. Well, if we relieve the water

7 quality stress, what assurance did we have that

8 suddenly we are going to jump not above poor even

9 into fair or into good --

Q. What --

A. -- in terms of IBI range? And your

12 Question 43 asks the question, "Based on Rankin

13 1989, is it possible for a QHEI score of 45 or less

14 to be associated with fish IBI score to represent

15 attainment of the Ohio Act?"

Q. Here we go. It's actually based on

17 Figure 19 on Page 40 of Rankin.

It appears that a majority of the

19 machines that should say less than or equal to 34 --

20 I'm sorry, that's a typo.

A. That's fine. Less than or equal to an

22 IBI score of 25 or higher.

And my response to that question

24 was your cutoff of 24 is arbitrary and meaningless.

175

1 It's more meaningless to interpret 19 relative to

2 these ranges of fair, good and so on.

And if we do that, we find that

4 you have the table to show that.

MR. ANDES: Introduce --

MR. ETTINGER: Are all of these being

introduced as exhibits?

MR. ANDES: Yes.

MR. ETTINGER: See, they helped us

reach our total.

MS. WILLIAMS: There are several areas

that he had to follow-up.

THE HEARING OFFICER: I've been handed

IEPA Question 43B, which we will mark as

Exhibit 178, if there's no objection.

Seeing none, it's Exhibit 178.

(WHEREUPON, a certain document was

marked Exhibit No. 178 for

identification, as of 11/17/08.)

20 BY THE WITNESS:

A. So if we look at this table, which

22 Fred just passed out, based on Figure 19 in Rankin,

23 for QHEI sites less than 46, less than or equal to

24 45, we can see that in the poor range we have 24 in

176

1 the 20 to 23 range, 24 percent. Thirty-five percent

2 between 24 or 27 and then we have 28 between -- 21

3 between 28 and 31.

So if we just say that half of

5 those 21 percent are 28, 29 and the other half are

6 30 and 32.5 percent of these sites with QHEI's less

7 than or equal to 45 are in the poor range. So right

8 now we are very poor with the QHEI with the habitat

9 we have now, it's a three out of four chance,

10 approximately, we are going to end up in the poor

11 range. And about one out of four chance we're going

12 to get in the fair range.

So yes, being less than 20, maybe

14 the combination of multiple stressors, but the

15 habitat stressor is still pointing us, at best,

16 fair.

17 BY MS. WILLIAMS:

Q. So this Exhibit 178, is this in Rankin

19 somewhere?

A. Well, this is reading off of

21 Figure 19.

Q. Do you know what page that's on?

A. Page 40, I think, according to the

24 question.

177

Q. So why -- so you think it's use of

2 this cutoff of 24 is arbitrary. I just want to

3 understand why.

A. Well, it's arbitrary because you want

5 to compare whether we're going to be in fair or poor

6 or good as opposed to -- and 24 is just in the

7 middle of the poor range.

Q. So he was arbitrary in splitting those

9 up?

A. I think it's more how he chose to cut

11 his data up into, apparently, like three percent to

12 four percent steps.

Q. Would you mind looking at Page 50?

THE HEARING OFFICER: Of Rankin's

1989?

MS. WILLIAMS: Yes.

17 BY MS. WILLIAMS:

Q. I'm sorry, of Rankin Exhibit 175.

I'd just like you to read the last

20 sentence there.

A. The very last sentence. "This

22 application for the" -- am I reading the right

23 sentence?

Q. Yes.

178

A. "This application for distinguishing

2 types of impacts in Ohio, most severe impacts IBI

3 scores less than 20, are rarely caused by habitat

4 alone."

Q. Does that sound like a quote that we

6 were referring to in the question?

A. It's basically -- well, it's identical

8 to what I -- or more or less identical to what I

9 stated from Page 9.

Q. Did you have any follow-up?

MR. ETTINGER: Well, I have a whole

bunch of questions.

Actually, I don't have that many

more.

15 BY MR. ETTINGER:

Q. But can I just ask: What's your

17 impression of the size of the record in the DO

18 proceeding that the Board went through in setting

19 the current Illinois DO standards?

MR. ANDES: How many documents?

MR. ETTINGER: Yeah, how many

documents?

23 BY THE WITNESS:

A. My impression of the size?

179

1 BY MR. ETTINGER:

Q. Is it a big record, is it a little

3 record? Do you think you read all of it, do you

4 think you read just a little bit of it?

A. Well, I -- okay. Now I'm getting

6 confused here.

Are you talking about the revised

8 rule for DO or for the CAWS in specific?

Q. The revised rule.

A. Okay.

Q. We've made a lot of reference to the

12 dissolved oxygen standard for general use waters.

13 I'm just asking you how much of the record you

14 reviewed or how big do you think the record is that

15 you reviewed for that?

A. Well, as I said, I looked at the

17 proposal, the statement of reasons and the

18 original -- what was it, Wiles and --

THE HEARING OFFICER: Garvey. Wiles

and Garvey.

21 BY THE WITNESS:

A. Beyond that, I didn't look at another

23 document.

180

1 BY MR. ETTINGER:

Q. Okay. So were you aware that we had

3 like two years of three years of hearings on that --

A. Well, I don't have any objections with

5 that report for general use waters in the state of

6 Illinois.

Q. Well, that -- I don't want to --

8 BY MS. WILLIAMS:

Q. Are you aware that --

10 BY MR. ETTINGER:

Q. Are you aware that that report was not

12 accepted in whole in setting the dissolved oxygen

13 standard?

A. Well -- but the numbers still came out

15 to be similar to what was in that report.

Q. Some of them did.

17 BY MS. WILLIAMS:

Q. Did the same numbers apply throughout

19 the state under the general use -- except for these

20 waters, is there one general use?

A. No, there are -- as what I saw on your

22 Pollution Control's website, there is a long list of

23 waters that follow a different path.

Q. That are also general use waters;

181

1 correct?

A. That are also general use waters.

Q. So when you refer to the standard

4 proposed here for the Use A waters being similar to

5 general use, you're referring not to the tier -- not

6 to the enhanced tier in that rulemaking; correct?

A. Correct.

MR. ETTINGER: Are you done now?

MS. WILLIAMS: I have some more

questions. They're not on DO I don't think,

though. Do you went me to finish?

MR. ETTINGER: I don't really care,

I'm awake now.

THE HEARING OFFICER: If -- let's put

it this way, if you don't have any follow-up,

we're going to continue with Ms. Williams.

MR. ETTINGER: Why don't we let her

follow -- I have my whole own list.

THE HEARING OFFICER: Right.

MR. ETTINGER: And I, frankly, could

use a second to review where we are on my

list.

MS. WILLIAMS: Yeah. I think I can

keep going. I don't think it's going to take

182

that much longer to get through the ones that

aren't crossed off.

3 BY MS. WILLIAMS:

Q. So I just -- there's one here on

5 Question B at the top of Page 90. Let's see, that

6 would be 23B.

I think Albert already asked about

8 evidence in the record regarding early life stages.

9 I just was asking in this question whether you

10 reviewed Exhibit 48 in the record. And I'll show

11 you a copy of that.

A. I think I've seen a piece of it, but

13 perhaps not the entire...

Q. So you weren't necessarily relying on

15 this document when you testified about any evidence

16 of early life stages or potential evidence of

17 younger fish versus adult fish?

A. In my testimony relative to early life

19 stages, I was going by the fact that the Illinois

20 EPA could not cite definitive evidence of the

21 existence of early life stages in their own

22 testimony. If they can't find it...

Q. Okay. Turn to the -- this exhibit is

24 a little confusing, because it's labeled 1F2 and

183

1 then it starts 1F14. But if you turn to the back

2 and you were -- Page 9 of 13.

A. Okay.

Q. In the last set of -- those are data

5 from the Calumet Sag Channel, which I think is what

6 we were talking about this morning. Why don't we

7 look at Large Mouth Bass.

Can you tell me from this table

9 what the smallest size Large Mouth Bass found in the

10 Calumet Sag Channel?

A. It says minimum three inches.

Q. Would you think that a three-inch

13 Large Mouth Bass could have reached the Calumet Sag

14 Channel from Lake Michigan?

A. It could have.

Q. Do you believe that's the case that

17 this --

MR. ANDES: He just answered the

question. He just answered.

MS. WILLIAMS: What did you say, Fred?

MR. ANDES: He said it could have.

22 BY MS. WILLIAMS:

Q. Do you believe that's what happened?

A. Well, again -- first off, I don't know

184

1 that size is necessarily an indicator of what.

2 Right now, if you look in Lake Michigan,

3 five-year-old White Fish are one-fifth of their

4 average size from 1988.

So just having small fish is not

6 necessarily a sign to indicate -- just having small

7 fish isn't necessarily an undeniable indicator that

8 it's a juvenile or an adult. So the three-inch

9 fish...

Q. Have you ever been aware of a

11 three-inch Large Mouth Bass being an adult size

12 fish?

A. I don't know.

Q. So you don't know of any?

A. Not aware.

Q. Not aware of any.

MR. ANDES: Are you aware of any, one

way or the other, in terms of --

THE WITNESS: No.

THE HEARING OFFICER: Can I ask a

question? We did not have that document in

front of us because I did not bring it back

out here.

How many fish of that size were

185

found, is there an indication on the --

MR. ANDES: No.

THE HEARING OFFICER: Thank you.

MS. WILLIAMS: I have an extra one.

THE HEARING OFFICER: That's okay. I

just wanted to follow up on the question.

7 BY MS. WILLIAMS:

Q. How many total fish were found? Does

9 it say on there?

MR. ANDES: How many total Large Mouth

Bass?

MS. WILLIAMS: Large Mouth Bass, in

that segment.

14 BY THE WITNESS:

A. One hundred fifty-two.

MR. ANDES: And can you tell me what

the maximum length was?

THE WITNESS: Fourteen.

MR. ANDES: And the average?

THE WITNESS: Eight.

MR. ANDES: So then, you might say

that half are less than eight and half are

above eight?

THE WITNESS: Approximately.

186

MR. ANDES: Thank you.

2 BY MS. WILLIAMS:

Q. Might it also not say that? I mean,

4 could you have a bunch that are --

MR. ANDES: Average.

MS. WILLIAMS: I mean, yeah, it's an

average, it's not a median.

MR. ANDES: It's a mien, excuse me.

9 BY MS. WILLIAMS:

Q. Question 31. On Page 31 of your

11 report you say that there is, quote, "No evidence to

12 habitat and physical characteristics of the CAWS,

13 the supports that you used or obtained the proposed

14 criterion, identify the evidence that demonstrates

15 the CAWS can't obtain the proposed use or meet the

16 proposed dissolved oxygen standards."

A. I'm going to sound like a broken

18 record here. Because the dissolved oxygen standards

19 for the proposed aquatic life use standards equal,

20 in certain critical aspects, the general use

21 dissolved oxygen standards --

MR. ANDES: Slow down.

THE WITNESS: Sorry.

187

1 BY THE WITNESS:

A. -- that was recently adopted by the

3 Board. We can assume IEPA expects the CAWS to

4 support the type of benthic macroinvertebrate and

5 fish communities that would occur in the general use

6 waters in the state.

The Agency has not shown that this

8 type of aquatic community can be achieved in the

9 CAWS. Instead, the UAA contractor noted on Page 53,

10 improvements in water quality through various

11 technologies, like reaeration, may not improve the

12 fish communities due to lack of suitable habitat to

13 support the fish population," end quote.

Further, my analysis of the

15 physical habitat of the CAWS leads me to the same

16 conclusions of the UAA contractor. Thus, the Agency

17 should determine the composition of the aquatic

18 community that can be obtained relative to the

19 habitat limitations of the CAWS and develop

20 appropriate dissolved oxygen standards for this

21 community.

22 BY MS. WILLIAMS:

Q. Do you agree that waters have to be

24 designated for the highest attainable use?

188

MR. ANDES: I would object. That's

really a legal question about the Agency's

legal obligation.

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

legal question.

THE HEARING OFFICER: We had been over

what the use of "attainable use" phrase as a

legal term before. I think we have covered

that several times. It's a legal term of art

used in --

MS. WILLIAMS: Oh, you've concluded we

have determined it's a legal question?

THE HEARING OFFICER: I think we've

discussed it before, and you've ended up

rephrasing the question rather than --

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

legal question. If you think it's a legal

question, you can grant the objection, but...

MR. ANDES: Well, waters have to be

designated for the highest use attainable,

that's not a legal question?

MS. WILLIAMS: I don't think so.

MR. ANDES: I think so. I think it

is.

189

THE HEARING OFFICER: I think it's a

legal interpretation of the rule.

MS. WILLIAMS: Okay. Fine. Then

grant your objection.

Question 33.

THE HEARING OFFICER: Before you move

on, let's go ahead and take about a

ten-minute break; okay?

(WHEREUPON, a recess was had.)

THE HEARING OFFICER: We are back on

the record, Ms. Williams.

12 BY MS. WILLIAMS:

Q. Question 42. You conclude at the end

14 of your testimony and report that the Board should

15 disapprove the rules proposed by the Agency.

Does this mean that you believe

17 there should be no upgrade of these waters from

18 where they were designated 30 years ago?

A. I think this question has things

20 backwards. Thirty years ago, when the current

21 designations and related dissolved oxygen standards

22 were established, the CAWS could not meet those

23 standards.

Now, through the tremendous

190

1 efforts of the MWRD, the USEPA, IEPA, environmental

2 groups and others, dissolved oxygen meets the

3 standards nearly all the time. The hard work and

4 financial resources that went into improving the

5 water reclamation plant facilities and operations,

6 adding the in-stream and side-stream aeration

7 station, completing and operating the tunnel portion

8 of Tarp and other activities that resulted in a

9 substantial increase in the fish abundance and

10 species diversity.

Further, improvements can be

12 expected once the reservoir portion of Tarp is

13 completed. All people in Chicagoland and Illinois

14 should be proud of these accomplishments.

It seems that because of habitat

16 limitations, a fish community with a high IBI score

17 of the type representing general use waters cannot

18 be achieved in the CAWS. Limno-tech is currently

19 doing a major project to try to determine the

20 biological retention of the CAWS.

Once the biological potential of

22 the CAWS is determined and agreed upon, all

23 stakeholders should work together to achieve this

24 potential through cooperative improvement of

191

1 facilities and operations in the CAWS pushing to

2 raise DO standards to achieve the undefined

3 biological community that might not be achievable --

4 let me start that sentence again.

Pushing to raise DO standards to

6 achieve an undefined biological community that might

7 not be achievable in the CAWS is poor public policy

8 in my opinion.

Q. Did you say in that answer somewhere

10 that aquatic life will continue to improve after the

11 completion of Tarp?

A. I believe so. But whether it goes

13 from poor to fair --

Q. We don't know.

A. -- we don't know.

Q. But it will improve on some level?

A. We should hope so.

Q. Is it your understanding that the

19 original designation of these waters was based on

20 the DO standard that could be attained?

A. You're talking about the original?

Q. Uh-huh, the original, I'm sorry.

That was sort of the impression I

24 got from your answer, that you said the question got

192

1 it backwards, so --

A. Well, I've not reviewed documents from

3 the 1970 or --

Q. That's fine.

A. But that's my guess.

MS. WILLIAMS: That's all I have.

THE HEARING OFFICER: Thank you,

Ms. Williams. That takes us to the

Environmental Law and Policy Center,

Mr. Ettinger.

MR. ETTINGER: Okay.

12 BY MR. ETTINGER:

Q. I am Albert Ettinger again.

Some of these questions -- I've

15 got 17 here -- have already been, sort of, beaten

16 over the head. But we'll try and eliminate the ones

17 that we think are there and go over the ones that we

18 don't think we got an answer to.

The first one, was Mr. Andes'

20 favorite question, which was, on what river did you

21 work in Belgium?

MR. ANDES: I was going to object for

relevance, but now I'm interested to hear the

answer.

193

1 BY THE WITNESS:

A. Okay. As stated on Page 2 of

3 Attachment 1 to my testimony, I did an uncertainty

4 analysis for the water shed and stream quality

5 models applied to the Seine, S-E-I-N-E, River in

6 Brussels, Belgium, sponsored by the research in

7 Brussels program. The Seine River is similar to the

8 Chicago area waterways, in that it's a heavily

9 modified urban stream fed by a network of combined

10 sewers.

I also advised on an uncertainty

12 analysis of water quality modeling for the Dender

13 River in Belgium.

14 BY MR. ETTINGER:

Q. Is this Seine River the same Seine

16 that flows through Paris?

A. Sounds similar, but completely

18 different Rivers.

Q. Is it spelled the same?

A. The one in Paris that's the Senne,

21 S-E-N-N-E, I think. We got a --

THE HEARING OFFICER: It's two Ns,

though; right, S-E-I-N-N-E?

THE WITNESS: I think we've come to

194

the conclusion I don't know how to spell, not

very well.

3 BY MR. ETTINGER:

Q. Do you know when they built a sewage

5 treatment plant in Brussels?

A. They started construction of the south

7 plant in 1998 about the time we were doing this

8 project. And this project was, in fact, in

9 support -- this was part of a larger project of

10 modeling in support of the construction of plants in

11 the north and south side of Brussels.

The south plant was completed

13 around 2000, had some operational difficulties. But

14 I think it's fully operational now.

The north plant, I'm guessing it's

16 still under construction, but I don't know for sure.

Q. So prior to 1998 were they treating

18 their sewage in Brussels?

A. Not at all.

Q. Question 2. How generally did you

21 measure the duration of the effect of a CSO event?

A. Because the pollutant concentrations

23 from a CSO cannot be isolated in a river, the effect

24 of a CSO event was assessed using simulations

195

1 obtained from the water quality model that was

2 specifically developed for the CAWS, coupled with

3 the statistical method. Because of the limited

4 measurements of pollutant concentrations during

5 combined sewer overflow events, pollutant loading

6 from most events had to be estimated as the average

7 of the available benthic concentration data for the

8 various reaches of the CAWS.

The North Shore Channel and the

10 North Branch were represented by data at the North

11 Branch pumping station, which was show to be

12 statistically similar to event main concentration

13 data at Evanston Street and Homestead Street CSOs.

14 Chicago River Mainstem, South Branch and Chicago

15 Sanitary and Ship Canal were represented by data

16 collected at the raising and pumping station, which

17 was shown to be statistically similar to the event

18 mien concentration data at the Greenwood Street CSO.

19 And a Little Calumet River North and the Calumet Sag

20 Channel were represented by data collected at the

21 125th Street Pumping Station.

Because most storm loads, thus,

23 were highly uncertain, we wanted to evaluate the

24 effect of its uncertainty on the simulations. Thus,

196

1 we randomly generated the event mien concentrations

2 for each CSO event and each pumping station assuming

3 a log normal distribution and using the mien and

4 standard deviation available at the concentration

5 measurements.

MR. ANDES: Slow down.

THE WITNESS: Sorry.

8 BY THE WITNESS:

A. From this uncertain evaluation, the

10 method to determine the duration of storm effects

11 and water quality was born. Wherein, the duration

12 of storm effects ended when the uncertainty, the

13 variation to the simulated concentrations, ended.

Specifically on Page 6 of my

15 testimony I explain the following. Merely

16 considering the time for dissolved oxygen recovery

17 decreased storm levels does not indicate the end of

18 the storm effect because the new dry water DO

19 concentration may have changed because of changes in

20 temperature, sediment, oxygen, treatment plant

21 loads, et cetera.

Dr. Emre Alp proposed and tested

23 on the CAWS a method to determine the duration of

24 storm effects on water quality. In his approach,

197

1 the Duflow water quality model was successively

2 applied to different storm, five-day carbonaceous

3 biochemical oxygen demand and ammonium as nitrogen

4 loading, i.e., aventanine concentrations.

Randomly sampled from a

6 distribution representative of the aventinine

7 concentration data collected by the District at the

8 CSO pump stations, using an uncertain analysis

9 technique. Then the variations in the Duflow model

10 output parameters among the successive simulations

11 were observed.

As the variation of the model

13 output parameters approaches zero, the system is

14 returned to prestorm dry weather condition.

15 Therefore, the duration between the start and end of

16 variations in the simulated Duflow model output

17 parameters can be defined as the duration of the

18 storm effect on in-stream water quality for the

19 duration of the wet weather condition.

More details are given on Pages 21

21 to 27, Attachment 1 of my testimony.

Q. Okay. That's a very good thorough

23 answer, unfortunately it's a little too

24 sophisticated for someone of my level of

198

1 intelligence.

So what I want to do is ask what

3 did you look at? I mean, what had to return for you

4 to decide that the storm was over? Ammonia, CBOD

5 and DO had to be back to where they were, or how did

6 that work?

A. Well, in fact, we reported different

8 results for each of those three constituents. And,

9 basically, what returned was among -- for BOD and

10 ammonia, basically, essentially the 50 different

11 simulations that we ran, all came back to the same

12 concentration at the point that the storm -- the

13 storm duration ended.

So they -- because we assumed

15 different loadings for each simulation, the BOD or

16 the ammonia took different values. But eventually

17 they all came back to the same value, indicating

18 that the dry weather flow from the plants and from

19 the tributaries completely controlled the conditions

20 for those two parameters.

The dissolved oxygen was a little

22 more complicated because there's also an effect in

23 the sediments. And that takes a very long time to

24 dampen out.

199

But the effect from the sediment

2 is generally very small at that level, on the order

3 of a tenth of a milligram per liter.

Q. So what caused you to decide that the

5 storm is over, that all of these things had come

6 back to where they should be during dry weather

7 conditions?

A. I think the DO was the one that had

9 the longest effect. And so the summary statements,

10 then, are based on DO. But it may only be a day or

11 two longer than the others.

Q. Now, for a lot of that period, though,

13 while the DO may not have been back to where it was

14 under the simulated dry weather conditions, it might

15 still be up to where it was healthy for aquatic

16 life; right?

A. Based on the standards, yes.

Q. So we might have a simulated -- your

19 model might tell you that, but for the rain, DO

20 should be at seven but could be at six now. And you

21 still wouldn't say the storm is over, but we'd agree

22 there six is healthy?

A. Right. That's an example. There's

24 not a lot of sevens and sixes.

200

Q. There are not a lot of what?

A. There are not a lot of sevens and

3 sixes in the CAWS.

Q. I made up those numbers for ease of

5 math.

A. I'm just trying to make it clear.

Q. Well, let's ask about that. Did you

8 see any diurnal swings in DO in the CAWS? Have you

9 looked at that?

A. It's very little. Because there's

11 very little algal growth, particularly in the North

12 Branch of the Chicago Sanitary and Ship Canal, the

13 South Branch and the Mainstem. A little bit more on

14 the Calumet side.

It might be appear to people that

16 there are diurnal swings in the -- some of the DO

17 data, but a lot of it can be attributed to, in fact,

18 operations of the aeration stations.

Q. Is there aquatic growth in the North

20 Shore Channel?

A. What kind? I mean, in terms of -- in

22 the water column? Very, very little.

Q. Okay.

A. Chlorophyll, algae.

201

Q. Now, we're talking about the North

2 Shore Channel, north of the north side treatment

3 plant?

A. Yes.

Q. Are CSOs causing violations of the

6 Illinois ammonia standard?

MR. ANDES: I would say that is a

legal issue. But I think he can tell you

what he knows.

10 BY MR. ETTINGER:

Q. Why don't you just tell me what you

12 know about what ammonia levels do during CSO events.

MR. ANDES: Oh, a different question.

14 BY THE WITNESS:

A. That's a different question.

16 BY MS. WILLIAMS:

Q. I just -- so you're saying you think

18 it's legal to say if a number is four and there's a

19 five value found, that's a legal question?

20 Counting, I mean --

MR. ANDES: The question is are --

causing violations.

MS. WILLIAMS: -- violation. Right.

Of a number.

202

MR. ANDES: That's a legal term,

"violation."

MS. WILLIAMS: Well, is that --

MR. ETTINGER: I withdrew the

question.

6 BY MR. ETTINGER:

Q. It's presumed the knowledge of the

8 Illinois ammonia standard. I don't really care --

9 that's not real tough, but, in this case, we'll --

10 just tell me what happens to ammonia levels during

11 CSO events.

A. Well, they become higher than what

13 would be going on during normal discharges from the

14 treatment plants. How much higher depends on

15 location in the system and relative magnitude of a

16 CSO event.

I'd have to look at some of the

18 numbers to get a sense of it. But, you know,

19 primarily what I would have answered to your

20 original question was that, basically, we didn't

21 compare our ammonia simulation results against the

22 standard. Our primary focus has been to look at DO

23 compliance or DO performance, I guess.

Q. Well, I guess I was confused. There

203

1 are a bunch of charts and things here --

A. Yeah.

Q. -- talking about recovery regarding

4 ammonia standard and then I assumed those were

5 significant. What do those -- what does -- did your

6 ammonia study tell you of relevance to our

7 proceeding here today?

A. I think in relevance to our proceeding

9 here today, it's just one other evidence of the

10 duration of loading effect on the storms. So it's

11 offered in the same vein as the DOD and the DO

12 issues on the storm duration.

Q. Do you think that the levels of

14 ammonia that you saw caused by the CSOs that you

15 studied have any effect on aquatic life in the CAWS?

A. Again, as I said, we didn't evaluate

17 that.

Q. I guess my problem is I'm not sure

19 what effect means then. What is the effect of

20 ammonia relating to CSO that we're concerned about

21 here?

MR. ANDES: Well, maybe I can clarify.

Is the issue you were looking at,

in terms of duration of effect, the changes

204

in pollutant levels?

2 BY THE WITNESS:

A. Well, I guess, maybe I want to go to a

4 more general answer, if you'll allow me.

5 BY MR. ETTINGER:

Q. Yes, please.

A. And I'm not, at this point, trying to

8 take a direct comment on IEPA or anybody else. I

9 think, in general, people have the impression the

10 rain comes, the water goes up, the water comes back

11 down, the storm effect is over.

And so, we get the statement that

13 I quoted before about the eruption of CSOs. And the

14 point of the testimony relating to ammonia and BOD

15 and DO and duration of the effects is just to make

16 the case that there is still a lingering effect of

17 the loading that carries on well beyond the point at

18 which the flow returns to normal dry level flows.

Q. Right. And what I'm trying to clarify

20 is when you say effect, you mean there's a change in

21 an ammonia number we can look at.

A. Right.

Q. But you're not saying that that change

24 in the ammonia number has any relevance to the

205

1 aquatic life in the Chicago area waterway system?

A. It could have if we compared against

3 the standard, which is a function of temperature and

4 pH. And so --

MR. ANDES: But your analysis did not

look at impact on aquatic life. Am I right?

THE WITNESS: No, it did not.

MR. ANDES: Okay.

9 BY MR. ETTINGER:

Q. So when you say effect, we just mean

11 ammonia number. We're not suggesting that there's

12 any effect on that ammonia on anything?

A. Again, it would take specifically

14 looking at the standard against the simulated

15 results of that bioevent for me to give you a clear

16 answer. There may be times when ammonia is too

17 high.

Q. How high did the ammonia level get?

A. Let's see if I can pull that out of

20 the documents here.

Okay. So I'm now looking at

22 Page 61, Technical Report 18, which was entered

23 earlier today as part of the proceedings.

On this page there are three

206

1 figures of three example locations in the waterway

2 system. One is North Branch Chicago River at

3 Diversey Street, another is the Chicago Sanitary and

4 Ship Canal at Harlem Avenue, and the third is the

5 Calumet Sag Channel at Ashland Avenue.

And these were just chosen at

7 random to express typical results. Otherwise we'd

8 have a pile of figures that no one would want to

9 see.

So North Branch at Diversey

11 Street, and this is for the period July 12th to

12 November 9th, 2001, simulated NH4 or ammonium

13 concentrations on the order of 1.5 to 1.6, the

14 maximum ammonia concentration. Chicago Sanitary and

15 Ship Canal at Harlem, the highest concentration is

16 about .75 milligrams per liter.

But the typical dry weather value

18 is somewhere between 1.5 and .25, maybe even .1 and

19 .25 during dry weather. And the Calumet Sag Channel

20 to Ashland, again, it maxes out at .8 milligrams per

21 liter. And the dry weather values are on the order

22 of .1 to .2.

So those two locations may be an

24 increase, at most, of maybe four times the dry

207

1 weather value, at Diversey Street maybe four to five

2 times the dry weather value.

Did that help.

Q. Yes, it does.

Did you ever take pH measurements

6 in any of those locations?

A. We didn't. But I believe the District

8 has them available.

Q. Do you have any reason to believe that

10 the pHs were up around nine or higher?

A. I haven't actually looked at them, so

12 I can't comment. But it would be unusual.

Q. So would it be unusual for those

14 ammonia levels to have been a problem, that you've

15 just repeated?

A. Well, this is where not knowing

17 Illinois standards, I can't comment.

Q. Okay.

A. I mean --

Q. Well, neither of us have memorized the

21 ammonia schedule, but -- we'll leave it at that.

I think we have asked this

23 question a few times, but -- in some ways, but --

24 seven. Have CSO events negatively impacted the

208

1 aquatic community and any parts of the Chicago area

2 waterway system?

A. To my knowledge, no biological study

4 has been done showing a direct link between CSO

5 events and the quality of the aquatic community in

6 the CAWS. There are multiple environmental

7 stressors that negatively impact aquatic communities

8 in the CAWS.

Many sources have similar effects

10 on the aquatic community. For example, change,

11 percentage of composition in the tolerant groups,

12 decreased number of species.

Currently analytical methods are

14 not available for separating the impacts of an

15 individual stressor, such as a CSO effect from other

16 stressors. Some not all CSOs result in very low DO

17 concentrations, and it is reasonable to assume that

18 these periodic low DO concentrations are a stressor

19 to the aquatic community.

However, it may not be the primary

21 stressor when compared to the poor habitat,

22 particularly substrate, in the CAWS.

Q. Well, let's ask about this primary

24 stressor concept. How does that work?

209

Does it -- does only the primary

2 stressor matter to the aquatic community?

A. I think in the end the primary

4 stressor is going to limit what can be achieved. So

5 it's like a model is only as good as its weakest

6 link or a baseball team or a football team.

So a primary habitat -- habitat,

8 per se, is the main limitation in the waterway, then

9 we can only get as far as habitat will allow us.

Q. Have you heard or aware of a situation

11 in which an effect can act symbiotically with

12 another effect, so, for instance, a fish would die

13 if it was -- had both high ammonia levels and high

14 temperature levels, when it wouldn't, based on just

15 one or the other?

A. I think, in most of the regulations,

17 they try to account for that by focusing on which

18 one they think might be the worst. But, yes,

19 symbiotic effects are possible where multiple

20 stressor can affect. But then separating which one

21 you need to relieve is difficult.

Q. On Page 24 of your report you state

23 that the long-term effects can negatively affect the

24 aquatic community, and that these long-term

210

1 effects -- I'm sorry, I should say of CSOs, cannot

2 be reduced until the reservoirs of the tunnel and

3 reservoir plan are fully online. Is it your

4 testimony that there have been no benefits to the

5 aquatic community from the partial completion of

6 Tarp?

A. It is not my testimony that there have

8 been no benefits to the aquatic communities from the

9 partial deletion of Tarp. I'm merely comparing the

10 current conditions to the anticipated future

11 condition with the Tarp reservoirs fully online.

12 BY MS. WILLIAMS:

Q. So will additional phases of Tarp have

14 additional benefits to the aquatic community, or are

15 you just comparing current condition to the final?

16 Wouldn't there -- they're incremental?

A. Well, I mean, the remaining increments

18 are building two reservoirs, so it's not like

19 there's a whole lot of steps left.

MR. ETTINGER: Why don't I ask

Question 10 -- if you were done, I'm sorry.

MS. WILLIAMS: Yeah, I'm done.

Sorry, Albert.

211

1 BY THE WITNESS:

A. I don't know if I completely answered

3 your question. I'm just saying that, you know, as I

4 mentioned before, that we would expect that when

5 Tarp comes online that things will continue to

6 improve.

But whether that gets us much from

8 the current very poor IBI, how high into the poor or

9 into the fair range, is unknown at this point.

10 BY MR. ETTINGER:

Q. How will completion of Tarp benefit

12 aquatic life? Question 10.

A. Because the number of CSO events will

14 decrease from ten to 15 per year to less frequent

15 CSO occurrence, careful operation of the system, the

16 substantial DO stress will be removed from the

17 aquatic life in the CAWS. However, habitat

18 limitations will still prevent substantial

19 increases, in my opinion, in biodiversity and

20 integrity.

Q. Are there parts of the CAWS that could

22 meet the proposed IEPA DO standards almost all of

23 the time?

MR. ANDES: I actually think that

212

Mr. Dennison is going to be presenting data

on DO.

MR. ETTINGER: Then we will wait. I

withdraw that question.

5 BY MR. ETTINGER:

Q. Let me skip down to 13.

Did the 1980s Fish and Wildlife

8 Service study of habitat suitability you discuss on

9 Pages 13 to 14 of your testimony deal with the

10 entire CAWS?

A. Okay. The -- let's try to be clear

12 here.

The Fish and Wildlife Survey

14 Service studies were national studies of habitat

15 suitability compiled from the literature from many

16 sources and also additional field data collection by

17 field agents of the service. So these curves, such

18 as I passed out earlier, were compiled on a national

19 level.

So the application to the CAWS was

21 only something I did now relative to this testimony.

Q. Okay. I believe we've asked 14.

Fifteen. Can substrate be

24 improved through any technique?

213

MR. ANDES: Can I ask, just to clarify

that, are you saying are there any techniques

that could be used, generally, to improve

substrate?

MR. ETTINGER: Correct.

MR. ANDES: Okay.

7 BY THE WITNESS:

A. Well, in the general case, yes.

For example, an independent expert

10 panel evaluated the 2001 proposed remedial action

11 plan for the Lower Fox River in Green Bay,

12 Wisconsin. They recommended that sediment

13 capping -- I'm sorry.

They recommended that sediment

15 capping would be beneficial, not only as a way to

16 contain the PCB contaminated sediments but also a

17 properly designed cap could improve habitat. And

18 this is in the report that Fred has --

MR. ANDES: It's on the disk.

20 BY THE WITNESS:

A. -- on the disk.

However, such an approach would

23 not be a good solution for the CAWS. Placing a cap

24 of improved substrate on the bottom of the CAWS

214

1 would substantially raise the bottom of the channels

2 further, restricting the already limited hydraulic

3 capacity of the CAWS to efficiently pass storm flows

4 downstream.

This would most likely result in

6 an increase in frequency of flow reversals to Lake

7 Michigan, and increase local flooding in basements

8 of buildings near the CAWS.

9 BY MR. ETTINGER:

Q. Would that be true of the entire CAWS?

A. In terms of limiting the making a

12 flood issue?

Q. Yes.

A. Yes. Because the whole system is

15 linked together.

And, for example, the ability to

17 evacuate flows from Chicago through Lockport during

18 floods is highly limited by the Sanitary and Ship

19 Canal from Sag Junction to Lockport. That's sort

20 of -- you've got a two-lane freeway converging into

21 one lane.

And so, whatever happens there

23 causes backups in the other two channels. And then

24 if the other two channels get less efficient than

215

1 the water from North Shore Channel, South Branch and

2 so on, can't evacuate down the CSSC above Sag

3 Junction.

So the hydraulic efficiency of the

5 entire system is interconnected. If you place

6 restrictions anyplace, it's going to reduce our

7 ability to avoid back flows or flow reversals.

Q. How much sediment did they put in the

9 bottom of the Fox River flowing up to Green Bay?

A. Well, I mean, that is just a proposal.

11 That was, in fact, only partially adopted.

So mainly they used sediment

13 dredging. And in a few limited areas, they are

14 going to place caps.

And I haven't seen the design

16 specs or details of those caps.

Q. Finally, on Pages 36 and 37 of your

18 report, you suggest that meeting the IEPA DO

19 standards would be a poor use of public money in

20 view of other needs.

Have you determined how much more

22 it would cost to meet the proposed IEPA standards

23 than it would cost consistently to meet the present

24 standards?

216

A. No.

Q. I just have a couple little follow-up

3 questions on things that were said earlier today.

Did you look at the effect of

5 barge traffic on reaerating any portion of the CAWS?

A. No.

Q. You discussed the effect or velocity

8 or lack of velocity on the ability to meet general

9 use standards. Would that testimony also be

10 applicable to lakes?

A. Well, the dynamics of lakes are a bit

12 different than the Chicago area waterways. For

13 example, much of the mixing that occurs in the

14 lakes is in the wind action on a relatively large

15 surface that's directly accessible by the -- here

16 the canal is down below the surface in a walled

17 situation, so the wind isn't as big of a mixing

18 process.

Q. So you're not suggesting that the

20 general use standards should be suspended as to

21 every lake?

A. No.

Q. And what about side channels of

24 rivers?

217

A. Pardon?

Q. What about side channels of rivers?

3 Side channels of, say, the Illinois River, are they

4 capable of getting general use waters, or would you

5 say that they're low velocity precludes them from

6 ever meeting general use standards?

A. It depends on the amount of exchange

8 between those side channels and the main channel.

9 For example, what we found in the simulation is

10 Bubbly Creek, basically, assumes the concentration

11 of the channel nearby during dry weather periods.

So even with the relatively low

13 exchange between the Sanitary and Ship Canal and

14 Bubbly Creek, it's still enough to bring those two,

15 more or less, into agreement.

MR. ETTINGER: That's it.

THE HEARING OFFICER: Anything else

for Dr. Melching?

Okay. Let's go off the record.

(WHEREUPON, discussion was had

off the record.)

THE HEARING OFFICER: Let's go back on

the record then.

I want to thank everyone. We will

218

begin in Des Plaines with Dr. Makay, and,

hopefully, then, also get to Ms. Wassick.

I doubt sincerely that we will get

to Dr. Dennison after that. So I think we'll

say that we will go to Dr. Makay and

Ms. Wassick and that's it in Des Plaines.

That means that we don't have to

carry everything for everybody else.

MS. WILLIAMS: Oh, I would think we'd

want Mr. Dennison to be --

MR. ANDES: I'd be fine with planning

to bring him.

THE HEARING OFFICER: You have over a

hundred questions for Dr. Makay. I'm just

saying, we only did 40-some today.

MS. WILLIAMS: Right. There is a lot

of stuff --

MR. ANDES: I'll plan on having him

anyway.

THE HEARING OFFICER: All right.

We'll have Dr. Dennison, as well.

All right. Thank you all very

much. We are adjourned.

219

1 STATE OF ILLINOIS)

) SS:

3 COUNTY OF COOK )

I, SHARON BERKERY, a Certified Shorthand

5 Reporter of the State of Illinois, do hereby certify

6 that I reported in shorthand the proceedings had at

7 the hearing aforesaid, and that the foregoing is a

8 true, complete and correct transcript of the

9 proceedings of said hearing as appears from my

10 stenographic notes so taken and transcribed under my

11 personal direction.

IN WITNESS WHEREOF, I do hereunto set my

13 hand at Chicago, Illinois, this 25th day of

14 November, 2008.

Certified Shorthand Reporter

19 C.S.R. Certificate No. 84-4327.