BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
WATER QUALITY STANDARDS AND
)
EFFLUENT
LIMITATIONS
FOR
THE
)
CHICAGO AREA
WATERWAY SYSTEM
)
AND THE
LOWER DES PLAINES RIVER:
)
PROPOSED
AMENDMENTS TO 35 Ill.
)
Adm. Code Parts 301, 302, 303 and 304
)
)
R08-9
(Rulemaking - Water)
NOTICE OF FILING
To:
ALL COUNSEL OF RECORD
(Service List Attached)
PLEASE TAKE NOTICE that on the 12th day of June, 2008, I filed with the Office of
the Clerk of the Illinois Pollution Control Board the attached Metropolitan Water Reclamation
District
of Great Chicago's Motion to Stay IPCB R08-9, copies of which are hereby served upon
you.
Dated: June
12,2008
By:
One of Its Attorneys
Fredric
P. Andes
Carolyn
S. Hesse
David
T. Ballard
BARNES
&
THORNBURG LLP
Suite 4400
One North Wacker Drive
Chicago, Illinois 60606
(312) 357-1313
[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
Electronic Filing - Received, Clerk's Office, June 12, 2008
CERTIFICATE OF SERVICE
I, David T. Ballard, the undersigned attorney, hereby certify that I have served the
attached Metropolitan Water Reclamation District of Great Chicago's Motion to Stay
IPCB R08-9,
on All Counsel of Record (Service List Attached), by depositing said documents in
the United States Mail, postage prepaid, from One North Wacker Drive, Suite 4400, Chicago,
Illinois before the hour
of 5:00 p.m., on this 12
th
Day of June, 2008.
David T. Ballard
469424vl
[This filing submitted on recycled paper as defined in 35 III. Adm. Code 101.2021
2
Electronic Filing - Received, Clerk's Office, June 12, 2008
Richard J. Kissel
Roy
M. Harsch
Drinker, Biddle, Gardner, Carton
191 N. Wacker Drive
Suite 3700
Chicago, IL 60606-1698
SERVICE LIST
R08-9 (Rulemaking - Water)
Claire
A.
Manning
Brown, Hay
&
Stephens LLP
700 First Mercantile Bank Building
205 South Fifth St., P.O. Box 2459
Springfield, IL 62705-2459
Deborah
1. Williams, Assistant Counsel
Stefanie
N. Diers, Assistant Counsel
lEPA
Division
of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Kevin
G. Desharnais
Thomas
W. Dimond
Thomas
V. Skinner
Mayer, Brown LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Robert VanGyseghem
City
of Geneva
1800 South Street
Geneva, IL 60134-2203
Matthew
J. Dunn, Chief
Office of the Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
Chicago, IL 60602
Bernard Sawyer
Thomas Granto
Metropolitan Water Reclamation District
6001
W. Pershing Rd.
Cicero, IL 60650-4112
James
L.
Daugherty, District Manager
Thorn Creek Basin Sanitary District
700 West End Avenue
Chicago Heights, IL 60411
Tracy Elzemeyer, General Counsel
American Water Company Central Region
727 Craig Road
St. Louis, MO 63141
Katherine
D.
Hodge
Monica
T. Rios
Thomas Safley
Hodge Dwyer Zeman
3150 Roland Avenue
Post Office Box 5776
Springfield, IL 62705-5776
Charles
W. Wesselhoft
James
T. Harrington
Ross
&
Hardies
150 North Michigan Avenue
Suite 2500
Chicago, IL 60601-7567
Jerry Paulsen
Cindy Skrukrud
McHenry County Defenders
132 Cass Street
Woodstock, IL 60098
Albert Ettinger
Freeman, Freeman
&
Salzman
401 N. Michigan Avenue
Chicago, IL 60611
Lisa Frede
Chemical Industry Council
of Illinois
2250
E. Devon Avenue
Suite 239
Des Plaines, IL 60018-4509
Sharon Neal
Commonwealth Edison Company
125 South Clark Street
Chicago, IL 60603
Margaret
P. Howard
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Electronic Filing - Received, Clerk's Office, June 12, 2008
Keith 1. Harley
Elizabeth Schenkier
Chicago Legal Clinic, Inc.
205 West Monroe Street, 4th Floor
Chicago, IL 60606
Fred
L. Hubbard
Attorney
at Law
16 West Madison
P.O. Box
12
Danville, IL 61834
W.e. Blanton
Blackwell Sanders LLP
4801 Main Street
Suite 1000
Kansas City, MO 64112
Traci Barkley
Prarie Rivers Networks
1902 Fox Drive
Suite 6
Champaign, IL 61820
James Huff, Vice President
Huff
&
Huff, Inc.
915 Harger Road, Suite 330
Oak Brook, IL 60523
Cathy Hudzik
City
of Chicago - Mayor's Office of
Intergovernmental Affairs
121 N. LaSalle Street
City
Hall- Room 406
Chicago, IL 60602
Irwin Polls
Ecological Monitoring and Assessment
3206 Maple Leaf Drive
Glenview, IL 60025
Marc Miller, Senior Policy Advisor
Jamie
S. Caston, Policy Advisor
Office
of
Lt.
Governor Pat Quinn
Room 414 State House
Springfield, IL 62706
Frederick
D. Keady, P.E., President
Vermilion Coal Company
1979 Johns Drive
Glenview, IL 60025
Georgia Vlahos
Naval Training Center
2601A Paul Jones Street
Great Lakes, IL 60088-2845
Dennis
L. Duffield
Director
of Public Works
&
Utilities
City
of Joliet, Department of Public
Works
&
Utilities
921 E. Washington Street
Joliet, IL 60431
Ann Alexander, Sr. Attorney
Natural Resources Defense Council
101 North Wacker Drive
Ste.609
Chicago, IL 60606
Beth Steinhorn
2021 Timberbrook
Springfield, IL 62702
Dr. Thomas J. Murphy
DePaul University
2325 N. Clifton Street
Chicago, IL 60614
Susan
M. Franzetti
Franzetti Law Firm P.C.
lOS. LaSalle St., Suite 3600
Chicago, IL 60603
Vicky McKinley
Evanston Environment Board
223 Grey Avenue
Evanston, IL 60202
Electronic Filing - Received, Clerk's Office, June 12, 2008
Albert Ettinger, Senior Staff Attorney
Jessica Dexter
Environmental Law
&
Policy Center
35
E. Wacker Drive
Suite 1300
Chicago, IL 60601
Tom Muth
Fox Metro Water Reclamation District
682 State Route
31
Oswego, IL 60543
Jack Darin
Sierra Club
Illinois Chapter
70
E. Lake Street, Suite 1500
Chicago, IL 60601-7447
Marie Tipsord, Hearing Officer
John Therriault, Assistant Clerk
Illinois Pollution Control Board
100 W. Randolph St.
Suite 11-500
Chicago, IL 60601
Stacy Meyers-Glen
Openlands
Suite 1650
25 East Washington
Chicago, Illinois 60602
Susan Hedman
Andrew Armstrong
Environmental Counsel
Environmental Bureau
Suite 1800
69 West Washington Street
Chicago, IL 60602
469414vl
Kenneth W. Liss
Andrews Environmental Engineering
3300 Ginger Creek Drive
Springfield, IL 62711
Bob Carter
Bloomington
Normal Water
Reclamation District
PO Box 3307
Bloomington, IL 61702-3307
Kay Anderson
American Bottoms RWTF
One American Bottoms Road
Sauget, IL 62201
Kristy
A.
N. Bulleit
Brent Fewell
Hunton
&
Williams LLC
1900 K Street,
NW
Washington, DC 20006
Jeffrey C. Fort
Ariel
1. Tesher
Sonnenschein
Nath
&
Rosenthal LLP
7800 Sears
Tower
233 S. Wacker Drive
Chicago, IL 60606-6404
Ronald M. Hill
Margaret
T. Conway
Metropolitan Water Reclamation District of
Greater Chicago
100 E. Erie Street,
Room 301
Chicago, Illinois 60611
Electronic Filing - Received, Clerk's Office, June 12, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO
35 Ill.
Adm. Code Parts
301,302,303 and 304
)
)
)
)
)
)
)
)
R08-9
(Rulemaking - Water)
METROPOLITAN WATER RECLAMATION DISTRICT OF
GREATER CHICAGO'S MOTION TO STAY IPCB R08-9
Pursuant to 35 Ill. Adm. Code 101.514, the Metropolitan Water Reclamation District of
Greater Chicago (the 'District) respectfully submits this Motion to Stay the rulemaking
proceedings in the above-captioned case. In support
of this Motion, the District states as
follows:
I.
OVERVIEW OF REASONS FOR STAY
The District takes very seriously its obligations to protect public health and the
environment. The District has spent large amounts
of money, time and resources to improving
water quality in the Chicago Area Waterways System
('CAWS), and will continue to do so.
When IEPA started the process of developing new water quality standards for the CAWS, the
District got involved, and agreed to perform several extensive studies, at its own expense,
to
assist in that process. However, when the rule development stakeholder process was stopped and
a proposed rule came out, the District found that the proposal had changed in significant ways
from earlier discussions. Also, the proposal ignored the fact that major studies, which could
change the IEPA recommendations and provide the Board with essential information for its
decisions, are still ongoing.
The District has participated actively in the hearings on the proposed rule.
Those
hearings have shown that the proposal has major problems - scientific, legal and policy.
It
could
Electronic Filing - Received, Clerk's Office, June 12, 2008
result in the expenditure of billions of dollars, which would have to be paid largely by the
District's taxpayers, and could also result in a larger carbon footprint and other adverse
environmental impacts, without any demonstration that it will bring about any appreciable
improvement in water quality or benefit
to public health. At this point, the District believes that
the best course
of action as to the rulemaking is to suspend the process, while IEPA goes back to
fill
in the significant gaps in the basis for its proposal and consults with stakeholders as to these
unresolved issues. The studies that are ongoing will be very helpful in filling in the gaps,
so the
final regulatory decisions should await the results
of those studies. In this Motion, the District
asks that the Board issue a stay
of this rulemaking proceeding, to last until those studies are
completed and the results can be taken into account in a dialogue among the stakeholders. The
stakeholder process that was tenninated by the initiation
of this rulemaking should resume, and
the parties should be directed
to submit quarterly status reports to the Board, to ensure that
progress continues toward resolution
of the outstanding issues and completion of the rulemaking.
Under the current schedule for this proceeding, the next round
of detailed testimony by
witnesses is scheduled
to begin on September 8, 2008, with prefiled testimony due on August 4,
2008. If this process is going to be stayed for some period of time, so the Agency can repair the
deficiencies in its proposal, then it makes little sense for the parties to proceed with preparation
of detailed testimony on the proposal as it currently stands. Therefore, the District requests that
the Board stay the schedule for submittal
of testimony until after the Board has ruled on this
Motion
for Stay.
II.
PROCEDURAL HISTORY
1.
On October 26, 2007, the Illinois Environmental Protection Agency ('IEPP:.) filed
a Motion for Acceptance with the Illinois Pollution Control Board (the''Board)for a hearing on
2
Electronic Filing - Received, Clerk's Office, June 12, 2008
IEPA's proposal to amend 35 Ill. Adm. Code Parts 301, 302, 303, and 304 ('!EPA'sProposal).
Generally, IEP
A's Proposal will amend the water quality standards for the Chicago Area
Waterways System
('CAWS)and the Lower Des Plaines River, to revise the designated uses and
the criteria necessary to protect those uses.
2.
On November 1,2007, the Board granted IEPA'sMotionfor Acceptance.
3.
On November 16, 2007, the District entered an appearance to participate in the
public hearing process. The first hearing was scheduled for January 28, 2008. The District
submitted pre-filed questions for IEPA on January
18, 2008, and has participated in the hearings
that have been held on the proposed rules.
4.
The Board has held a total of ten days of hearings on IEPA's Proposal, the most
recent hearing taking place on April 23-24, 2008.
In
those hearings, IEPA presented its
witnesses, and the other parties questioned those witnesses.
5.
As a result of the substantial deficiencies in IEPA's Proposal that are described
below, during the April 23-24, 2008 public hearing, the District and other parties requested that
the hearing officer stay the proceedings to allow all parties an opportunity to receive, review, and
submit forthcoming studies that will help reconcile IEPA's
significant analytical discrepancies.
These studies would provide IEPA with additional data needed to fill critical information gaps
and allow IEPA to conduct a more rigorous analysis, using information from the forthcoming
studies for, among other things, better defining the attainable uses, developing the appropriate
water quality standards for those uses, and evaluating the economic reasonableness
of the
proposed water quality standards.
3
Electronic Filing - Received, Clerk's Office, June 12, 2008
6.
In response to the parties' request for a stay to incorporate these studies at the
April 23-24, 2008 hearing, the hearing officer ordered that all motions to stay the proceedings
must be filed with the Board, rather than directed to the hearing officer.
7.
A further hearing is currently set for June 16, 2008, to hear public testimony.
Additional hearings have been set for six days in September 2008, for presentation
of testimony
by witnesses for the non-IEPA parties, and questioning
of those witnesses.
III.
LEGAL STANDARD FOR MOTION TO STAY PROCEEDINGS.
8.
The Board has "inherent authority to grant a stay under certain circumstances;'
including the authority to stay its own proceedings.
Israel-Gerold's
v.
Illinois EPA,
PCB No.
91-108 (July 11, 1991) (citations omitted). The Board has sole discretion to grant or deny
motions for stay
(People
v.
State Oil Co.,
PCB 97-103 (May 15, 2003),
aff'd sub nom State Oil
Co. v. PCB,
822 N.E.2d 876 (2nd Dist. 2004)), and historically grants such motions,
inter alia,
(1) to avoid wasting time, expenses, or resources
(In the Matter of Petition of Midwest
Generation, LLC, Will County Generating Station for an Adjusted Standard from
35
Ill. Adm.
Code 225.230,
AS 07-04 (March 15, 200&));(2) to avoid practical difficulties
(Id.);
(3) to avoid
duplicative efforts by the Board and other review authorities addressing related issues
(Id.);
and
(4)
to assist the Board in making the appropriate determination
(In the Matter of Petition of
Cahot Corporation for an Adjusted Standard from
35
Ill. Adm. Code Part
738,
Subpart B,
AS
07-06 (August 9, 2007). A party seeking a stay must submit a motion to the Board"accompanied
by sufficient information detailing why a stay is needed;' and
'La] status report detailing the
progress
of the proceeding:' 35 Ill. Adm. Code § 101.514.
4
Electronic Filing - Received, Clerk's Office, June 12, 2008
IV.
ANALYTICAL ISSUES WITH IEPA'S PROPOSAL
9.
Throughout the public hearings, the District and other parties discovered a
number
of substantial deficiencies in IEPNs Proposal. As a general matter, IEPNs responses to
questioning indicated that it (1) has failed to clearly document the methodologies it utilized to
arrive at the
major findings and recommendations in its use attainability analysis; (2) did not
have adequate data and information to properly assess aquatic life uses
or to set appropriate
water quality standards; (3) did
not have adequate data and information to set appropriate water
quality standards to protect recreational uses; and (4) did
not have adequate data and information
to assess the economic reasonableness
of its Proposal.
10.
There are a significant number
of problems with IEPNs methodologies that have
been revealed
by the testimony, including the following:
•
IEPA conceded that it does
not have the proper indicator to assure protection of
recreational users (January 29,2008 Hearing, transcript at p. 180);
•
IEPA admitted that it never considered whether provisions could
be designed to
appropriately protect aquatic life under wet-weather conditions
(ld.
at pp. 65, 187-188);
•
IEPA conceded that it did
not account for all sources of microorganisms to the CAWS
when it determined that certain sources should be subject to disinfection requirements
(ld.
at
p.
192);
•
IEPA admitted that it did not analyze other potential environmental impacts associated
with requiring disinfection in the CAWS
(e.g.,
increased air emissions or waste issues)
(ld.
at p. 193);
•
IEPA admitted that unintended environmental consequences
of disinfection and artificial
supplementation
of dissolved oxygen (DO)
(e.g.,
impacts on carbon footprint or air
5
Electronic Filing - Received, Clerk's Office, June 12, 2008
emissions) are relevant to assigning those mechanisms as part of its UAA, yet IEPA
conceded that it never studied those consequences in this
UAA or weighed them against
their benefits (March 10, 2008 Hearing, transcript at p. 40);
•
IEPA conceded that sediment chemistry data would be necessary to do a complete
evaluation of the habitat issues for aquatic life in the CAWS, but admitted that it did not
consider sediment chemistry data in making its habitat evaluation (February
1, 2008
Hearing, transcript at p. 182);
•
IEPA admitted that it has not identified specific fish
or benthic species that would be
benefited
by the proposed changes to the water quality standards for the CAWS, or the
ways
in which those species might be benefited (March 10, 2008 Hearing, transcript at
pp, 10, 12-14);
•
IEPA conceded that it could not define a clear, non-arbitrary line defining how waters
were classified as Aquatic Life Use A or Aquatic Life Use B, despite the significant
regulatory differences between the two
(Id.
at pp. 28-29);
•
IEPA conceded that it did not evaluate whether the proposed designated aquatic life uses
for the CAWS fit within the long-term fisheries management strategies assigned to the
CAWS
by the Illinois Department of Natural Resources ('IDNR)
(Id.
at p. 78);
•
IEPA admitted that it did not address or analyze the number
of combined sewer overflow
('CSO)bacteria sources or Municipal Separate Storm Sewer System (MS4) sources to the
CAWS, even though they may be significant contributing sources (April 23, 2008
Hearing, transcript at pp. 76-77, 79);
6
Electronic Filing - Received, Clerk's Office, June 12, 2008
•
IEPA conceded that it could not say whether the control measures recommended in the
UAA would lead to 100% attainment
of the standards in all parts of the CAWS
(Id.
at p.
187); and
•
IEPA admitted that it could not determine the relative contributions
of MS4s and CSOs
to low DO levels during wet-weather events
(Id.
at pp. 242-243).
Ll.
The testimony has also revealed a significant number of problems in the data and
information collection process for assessing proper aquatic life uses and water quality standards,
including the following:
•
IEPA conceded that it cannot make a definite distinction between legacy sediment and
recent sediment (January
29,2008 Hearing, transcript at p. 183);
•
IEPA admitted that it cannot confirm whether CSOs
or resuspended sediment causes DO
depletion during wet weather occurrences
(Id.
at pp. 186-187);
•
IEPA conceded that it has no data defining the attainable benthic or sediment conditions
in the CAWS (March 10, 2008 Hearing, transcript at pp. 22-23);
•
IEPA admitted it did not have enough sediment data to determine whether sediment
quality is improving
(Id.
at pp. 25-26);
•
IEPA conceded that it could not identify the specific tolerant or immediately tolerant
species that it used to define a balanced aquatic life population
(Id.
at p. 63);
•
IEPA admitted that it could not identify specific species that would be supported in
Aquatic Life Use A waters versus Aquatic Life Use B waters
(Id.
at p. 70);
•
IEPA conceded that it had no data showing actual fish spawning in the CAWS to support
an Aquatic Life Use A designation
(Id.
at pp. 74, 76;
see also
March 11, 2008 Hearing,
transcript at pp. 232-233);
7
Electronic Filing - Received, Clerk's Office, June 12, 2008
• IEPA admitted that it has no data demonstrating that the Chicago Sanitary and Ship Canal
or the Cal-Sag Channel will consistently attain the proposed DO standards (April 23,
2008 Hearing, transcript at pp. 182-183);
• IEPA conceded that it did not have enough sediment chemistry or toxicity data
to
conclude that the sediment in the CAWS actually contributes to impairing aquatic life
potential of the CAWS
(Id.
at pp. 203-205);
•
IEPA admitted that it did not assess whether needed corrections to incorrect
IBI
score
calculations would affect any
of the water body classifications assigned in the UAA
(Id.
atp.212);
•
rEP
A conceded that it did not have adequate information to determine whether sediments
are stressors
to the aquatic life community in the CAWS
(Id.
at pp. 216-217);
•
IEPA admitted that it has no information on the expected sediment inputs from CSO and
MS4s into the system over time
(Id.
at pp. 218-219); and
•
IEPA conceded it has no direct evidence that legacy contamination in the System is
diminishing (January 29,2008 Hearing, transcript at
p. 201).
12.
The testimony has also revealed a significant number of problems in the data and
infonnation collection process for assessing proper recreational uses and water quality standards,
including the following:
•
IEPA admitted that it has no scientific data demonstrating the public health benefits
to be
gained from requiring disinfection in the CAWS
(Id.
at p. 192);
•
IEPA conceded that it has no evidence
of disease outbreaks resulting from recreation in
the CAWS, within the three years preceding its proposal
(Id.
at p. 194);
8
Electronic Filing - Received, Clerk's Office, June 12, 2008
•
IEPA admitted that it has not identified the number of illnesses that will be prevented
annually
by requring the District to upgrade its facilities to add disinfection (at a cost to
the District that could amount to several billion dollars)
(Id.
at p. 195);
•
IEPA conceded that it has not quantified the wet-weather bacteria levels that will remain
after requiring disinfection at the Districfs facilities (March 10, 2008 Hearing, transcript
at pp. 41-42);
•
rEPA admitted that it has not determined an expected decrease in human illness risks
from requiring disinfection within the System, or the risks to contact or noncontact
recreators due
to bacteria levels if disinfection is not required
(Id.
at pp. 42-43);
• IEPA conceded that it has no scientific data proving that disinfection will result
III
measurable water quality improvements in the CAWS
(Id.
at pp. 189-190); and
•
IEPA admitted that the recreational uses that it is designating for certain portions
of the
CAWS"may not be
safe:'(January29,2008 Hearing, transcript at p. 222).
13.
The testimony has also revealed a significant number of problems in the IEPA's
analysis (or lack thereof) as to the economic reasonableness of IEPA's Proposal, including the
following:
•
rEPA admitted that it has no analysis that shows that the recommended measures of
waterway aeration, waterway flow augmentation, effluent cooling and effluent
disinfection in the UAA are cost-effective or that the benefits from such measures
outweigh the costs (March 10,2008 Hearing, transcript at
p. 38);
•
rEPA conceded that it did not analyze the economic and technical feasibility of any
technologies other than disinfection that could reduce pathogens in the System (April 23,
2008 Hearing, transcript at
p. 76);
9
Electronic Filing - Received, Clerk's Office, June 12, 2008
•
IEPA admitted that it did not consider the costs of complying with the new proposed DO
standards in the UAA for the Cal-Sag Channel or the Sanitary and Ship Canal
(Id.
at p.
184); and
•
IEPA conceded that it never assessed whether the Districfs Stickney facility could
consistently comply with the temperature standards proposed in the UAA
(Id.
at p. 188),
even though the standards were based partly on data from that facility.
V.
FORTHCOMING STUDIES THAT WILL ASSIST IEPA'S ANALYSIS FOR THE
PROPOSAL
14.
One set of studies that would assist IEPA relates to risks to public health from
bacteria levels. At the request
of IEPA, the District has already performed several studies on this
issue, including:
(1)
a fecal coliform distribution study on CAWS waters; (2) an expert panel
study on secondary contact criteria feasibility in the CAWS; and (3) a quantitative microbial risk
assessment for the recreational uses proposed for the CAWS.
The risk assessment was
completed recently, and the report from that study is being submitted to IEPA, for its review and
consideration, at the same time
as this Motion for Stay is being filed with the Board. Currently,
there is an ongoing epidemiological study of recreational contamination in the CAWS, which is
intended
to validate the results of the quantitative microbial risk assessment, to provide scientific
data necessary
to properly evaluate the actual risk of illness, and to provide scientific data on the
risk of illness in correlation to indicator bacteria concentrations. The study has undergone and
been approved through the peer review process, and it is scheduled for completion in early
201 O.
A letter concerning the study, from the Water Environment Research Foundation (which has
been coordinating the peer review process for the study), is attached
as Exhibit
A.
10
Electronic Filing - Received, Clerk's Office, June 12, 2008
15.
Another set of forthcoming helpful studies for recreational use development on
the CAWS focus on the cost
of complying with the proposed standards: These studies include
the following:
•
The District has already convened a ''Blue Ribbon Panel'
to evaluate and rank the
suitability
of all available disinfection technologies for the various District facilities.
•
Currently, the District is completing a preliminary design and cost estimate study for
installing various types
of effluent disinfection units at its CAWS facilities. The final
cost estimates will be completed by the end of2008.
•
The District is conducting a study on the overall costs and environmental impacts
(including carbon footprint issues) that will result from compliance with the proposed
standards, which will be completed in early 2009.
•
The District is performing a pilot scale technology assessment, which will compare
several UV technologies side-by-side and evaluate efficacy, energy consumption,
reliability, maintenance requirements and select a preferred technology. That study will
be completed by Spring 2009.
• The District has completed a study
of the technical feasibility and cost of end-of-pipe
treatment
of the 170 CSOs along portions of the CAWS. This study has not been
submitted for consideration by IEPA and the Board during this process, but the most
recent hearings indicate that CSO issues are more significant for this rulemaking, on both
bacteria and DO, than was earlier thought,
so the District is submitting that study to IEPA
for its consideration, at the same time that this Motion for Stay is being filed with the
Board.
11
Electronic Filing - Received, Clerk's Office, June 12, 2008
16.
The District has also undertaken a program of study that will generate more and
better data to help in developing and justifying appropriate aquatic life use designations for the
CAWS. This program consists
of several different studies, including the following:
•
an evaluation and improvement study on the various CAWS habitats, to better define the
capabilities
of the CAWS to support aquatic life, and to resolve issues concerning its
potential to support early life states
of fish. This study includes identifying the ambient
fish populations and life stages in the
CAWS, if any, and then developing a habitat metric
specifically designed for this highly-modified waterway system. This study should be
completed
by Summer 2009;
•
an ongoing program to gather sediment quality data on the CAWS. The recent hearings
yielded testimony to the effect that IEPA, in developing its rulemaking proposal, did not
consider any
of the Districfs sediment data that was collected after the year 2002. To
ensure that data from subsequent years is considered, the District is submitting those data
for
IEPA review simultaneously with the filing of this Motion for Stay;
• a continuous
DO monitoring program on the CAWS with extensive hourly data to better
identify DO problems and explore the effects of wet weather on this system. These
programs are continuing to yield useful information; and
• a comprehensive ambient water quality monitoring program, assessing water chemistry,
fish, benthic invertebrates, physical habitat, sediment chemistry, and sediment toxicity
data, which has
been in place on the CAWS since 2001. This program is also continuing
to yield useful information.
17.
There are also several ongoing or proposed engineering studies that will help
better understand the
CAWS and the necessary improvements. These include:
12
Electronic Filing - Received, Clerk's Office, June 12, 2008
•
development of an integrated water quality strategy for the entire CAWS, usmg
engineering, cost and water quality studies
to identify ways to meet the proposed DO
standards.
This study integrates the approaches, such as flow augmentation,
supplemental aeration and CSO capture and treatment, that were previously studied
individually, into a unified strategy for water quality improvement. This study will be
completed in early 2009;
•
field tests using Sidestream Elevated Pool Aeration
('SEP.x)Stations on the Calumet-Sag
Channel
to understand if the stations can be operated to comply with the proposed DO
standards, and,
if so, what the additional electricity requirements to meet the new
standards would be. These tests will be done by late 2008;
• refining a state
of the art unsteady state hydraulic and water quality model ('CAWS WQ
Model) calibrated for modeling DO during typical wet weather periods, with the goals of
improving the calibration and extending the modefs abilities to simulate a wider range of
conditions and to better assess the attainability of proposed DO criteria under a range of
expected conditions (expected Fall 2008);
•
studies (which have been completed) assessmg control measures (such
as flow
augmentation and supplemental aeration) for several specific segments
of the CAWS;
• performing an economic and environmental impact study to determine the costs
to
implement the integrated treatment and stream improvement projects identified in the
integrated water quality strategy above, given the Districfs current economic structure
and tax-based limitations. The study will determine the overall costs and environmental
impacts that
wiD result from compliance with the proposed water quality DO standard.
This project will be completed by mid-2009;
13
Electronic Filing - Received, Clerk's Office, June 12, 2008
•
3-dimensional hydraulic modeling to study the complex hydraulics of the CAWS under
various conditions. This research will examine issues
of stratification, bidirectional flow
and stagnation, under a range
of dry and wet weather conditions, in order to provide the
more sophisticated modeling necessary for selection
of the sites and sizes of
supplemental aeration facilities for final design if necessary. This study is planned to be
completed
by the end of20l0; and
•
an assessment, now completed, of the Disticfs ability to comply with the proposed water
quality standards for temperature. During the recent hearings, it became apparent that
this issue had not been fully assessed
by IEPA, so the District agreed to supply the
compliance information (which is taken from monthly reports filed with IEPA) for IEP
I\s
review, and the data is being submitted to IEPA simultaneously with the filing of this
Motion for Stay.
VI.
A STAY SHOULD BE GRANTED TO ALLOW FOR IEPA'S CONSIDERATION
OF FORTHCOMING RELEVANT STUDIES.
18.
As discussed above, IEP
I\s
Proposal has substantial deficiencies, including
serious data gaps. The studies that are set forth above would be very helpful in filling those
gaps, and in helping the Board to form an adequate scientific basis for its decisions. A stay is
appropriate
so that IEPA can take the needed steps: (1) receive, consider, and analyze the
studies; (2) collect any other information that is needed to complete a supportable analysis; and
then (3) submit the complete rulemaking proposal to the Board, with all relevant supporting
information, so the Board can make a fully-informed and soundly-based decision.
19.
A status report detailing the progress of the instant proceeding is attached as
Exhibit B.
14
Electronic Filing - Received, Clerk's Office, June 12, 2008
WHEREFORE, the District respectfully requests that the Board stay all proceedings on
IEP
f\s
Proposal, until the studies described in this Motion are completed and the results can be
taken into account in a dialogue among the stakeholders. The stakeholder process that was
terminated by the initiation
of this rulemaking should resume, and the parties should be directed
to submit quarterly status reports to the Board, to ensure that progress continues toward
resolution of the outstanding issues and completion of the rulemaking. Also, the District
respectfully requests that the Board stay the schedule for submittal
of testimony until after the
Board has ruled on this Motion for Stay.
Dated: June
B.,2008
15
Respectfully submitted,
METROPOLITAN WATER
RECLAMA
nON DISTRICT OF
GREATER
CjfICAGO
By:d2~c~r-
7 Fredric P. Andes
Erika
K. Powers
David
T. Ballard
Barnes
&
Thornburg LLP
1
North Wacker Drive
Suite 4400
Chicago, Illinois 60606
Tel: (312) 357-1313
Fax: (312) 759-5646
Frederick
M. Feldman
Ronald
M. Hill
Margaret
T. Conway
Metropolitan Water Reclamation
District of Greater Chicago
100
E. Erie Street, Room 301
Chicago, Illinois 60611
Tel: (312) 751-6587
Fax: (312) 751-6598
Attorneys for
Metropolitan Water Reclamation
District
of Greater Chicago
Electronic Filing - Received, Clerk's Office, June 12, 2008
Dear Dr. Girard:
Re:
Peer Review ofEpidemiologic Study ofRecreational Use ofthe Chicago Area Waterways
635 Slaters Lane, Suite 300
Alexandria,
VA 22314-1177
Tel: 703-684-2470
Fax: 703-299-0742
Email: werf@werf.org
www.werf.org
F
EXHIBIT
I
A
WERF assembled a panel ofrecognized experts to provide an independent review of the study
which is being conducted by investigators at the University
oflllinois-Chicago's School of
Public Health (DIC). The reviewers have backgrounds in epidemiology, infectious diseases,
water microbiology, microbial ecology, risk assessment, public health, and waste water
management. The reviewers include professionals from academia, local government, consulting
and federal government agencies. Several members
of the panel are currently conducting related
epidemiology, microbiological and other research studies.
WERF's role is strictly in a
coordination capacity as the technical advice is provided by the panel members. WERF has no
direct control over,
nor direct input into, the DIC epidemiologic study.
The Water Environment Research Foundation (WERF) is a nonprofit organization that helps
utilities, local governments and other stakeholders preserve the water environment and protect
human health by providing science and technology research to enhance management
of our
water resources.
In
Spring 2007, WERF was asked by Metropolitan Water Reclamation District
of Greater Chicago (MWRDGC) to coordinate an independent peer review of its
Epidemiologic
Study
ofRecreational Use ofthe Chicago Area Waterways.
Peer review is a service that WERF
provides upon request, and
in this case at WERF's expense, to its subscribers.
It
is our
understanding that this epidemiologic study is intended to provide scientific support for a
recreational water quality standard for the Chicago Area Waterways.
It
is in this context that I
am writing this letter to make
you aware of WERF's efforts.
Water Environment Research Foundation
Collaboration. Innovation. Results.
Dr. G. Tanner Girard
Acting Chairman
&
Member
Illinois Pollution Control Board
Suite 11-500
James R Thompson Center
100 West Randolph Street
Chicago, IL 60601
June 11, 2008
To begin the peer review process, the research team at DIC provided the peer review panel with
a detailed research plan and quality monitoring procedures
in
advance of the panel'sfirst
meeting held at UIC
on July 17-18, 2007.
In
keeping with the approaches used by national
scientific organizations, all panelists reviewed documents that described general aspects
of the
study, while specific sections
ofthe research plan and quality assurance plan were assigned to
Electronic Filing - Received, Clerk's Office, June 12, 2008
June 11, 2008
Page 2
individual reviewers
based on their areas of expertise. All elements ofthe study were reviewed,
ranging from the study objectives, to aspects
of recruitment of study participants, health
monitoring, water sampling, water analyses and statistical methods. The peer review panel
provided input including suggestions to UIC to further strengthen certain technical aspects
of the
study. The final study
plan reflects modifications that were advised in the peer review process.
The peer review panel
was satisfied that the proposed study design is sound and thorough and
that the UIC research team, under the leadership
of Dr. Samuel Dorevitch, is well qualified to
conduct the study.
The peer review panel
met with the UTC Team again on February 27,2008 to review the data
from the first season
of sampling and to refine the study plans for the upcoming study season.
The peer review panel liked
the progress they saw and agreed with the refinements made by the
UIC research team to the study plans for the second season
of sampling.
The
DIC's study has been designed to provide information that is valuable in the area ofhealth
risks associated
with secondary contact recreation, and address potential deficits in the current
knowledge
ofthe health risks associated with limited contact water recreation and the measures
required to protect the public. WERF intends to continue to coordinate the peer review efforts
over the course
ofthe study as the independent experts provide input to the collection, analysis
and interpretation of the data.
Sincerely,
~.
_~~t1U~5
Woltenng, Ph.D.
.
Director of Research
cc:
Peer Review Panel Members
Dr. Samuel Dorevitch, University
of Illinois - Chicago
Thomas Granato, PhD, Metropolitan Water Reclamation District
of Greater Chicago
S:\Rcscarch\2006 Challenges\PATH\PATHIPR06\Correspondence\WERF Letter to the !PCB- 06-11-08.doc
Electronic Filing - Received, Clerk's Office, June 12, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO
35 Ill.
Adm. Code Parts 301, 302, 303 and 304
STATUS REPORT
)
)
)
)
)
)
)
)
R08-9
(Rulemaking - Water)
The Metropolitan Water Reclamation District
of Greater Chicago (the ''District)
respectfully submits this Status Report on the rulemaking proceedings in the above-captioned
case,
as required by 35 Ill. Adm. Code 101.514.
1.
On October 26, 2007, the Illinois Environmental Protection Agency ('IEP
A')
filed
a Motion for Acceptance with the Illinois Pollution Control Board (the ''Board)for a hearing on
IEPA's proposal to amend 35 Ill. Adm. Code Parts 301, 302, 303, and 304 ('!EPA'sProposal).
Generally, IEPA's Proposal would amend the water quality standards for the Chicago Area
Waterways System ('CAWS) and the Lower Des Plaines River,
to revise the designated uses and
the criteria necessary to protect those uses.
2.
On November 1,2007, the Board granted IEPA'sMotion for Acceptance, thereby
initiating the public hearing process required by Illinois law.
3.
On November 16, 2007, the District entered an appearance to participate in the
public hearing process, along with various other parties who entered appearances prior
to or after
the Districfs appearance.
4.
The Board issued the original Notice of Hearings on November 20, 2007 that
scheduled the first public hearing on the rulemaking for January 28, 2008 through, at the latest,
February
1.
EXHIBIT
J
13
Electronic Filing - Received, Clerk's Office, June 12, 2008
5.
IEPA submitted pre-filed testimony for the public hearing process on December
21, 2007, and a
number of interested parties submitted pre-filed questions for IEPA prior to the
hearing, including the District
on January 18,2008.
6.
The first hearing on IEPA's Proposal occurred from January 28 to February 1,
2008, in Chicago, Illinois. After the first day of hearing, it became clear that the District and
other interested parties
would not finish questioning IEPA personnel in that span. Therefore, on
January 29, 2008, the Board scheduled a second public hearing session for March 10 through
March
12,2008, and ordered that it focus on finishing testimony from IEP
A.
7.
The Board held the second public hearing session from March 10 through March
12, 2008, in Joliet, Illinois, and,
on March 17, 2008, scheduled a third hearing session to take
place
on April 23-24, 2008 in Des Plaines, Illinois, again aimed at completing IEPA testimony.
8.
During a pre-hearing conference before the April 23 through April 24, 2008
hearing, the District requested the Hearing Officer stay the proceedings to allow for the review
and consideration of forthcoming studies that will help reconcile significant deficiencies in
IEPA's Proposal. The Hearing Officer ultimately decided, in an
order dated May 2, 2008, not to
address the Districfs request, indicating that the Board
must decide on such requests, not the
Hearing Officer.
9.
On May 8, 2008, the Board scheduled a fourth public hearing session for June 16,
2008
in Chicago, Illinois. The purpose of the June 16
th
hearing is for public testimony on IEPA's
Proposal.
10.
On May 19, 2008, the Board scheduled additional hearings in Chicago, Illinois for
six days in September 2008, to allow non-IEPA witnesses to testify and address questions from
interested parties. Pre-filed testimony for the scheduled September public hearing session must
2
Electronic Filing - Received, Clerk's Office, June 12, 2008
be filed before August 4, 2008, and pre-filed questions from interested parties must be filed
before August 25,2008.
Respectfully submitted,
METROPOLITAN WATER
RECLAMATION DISTRICT OF
GREATER
/
CHICAGO
~
~~/
>_.~
~::::-----~.
-~
By:
;>
~
(/'
c:::
c
.
~
- '--
~
..------
Fredric P. Andes
Erika
K. Powers
David
T. Ballard
Barnes
&
Thornburg LLP
1
North Wacker Drive
Suite 4400
Chicago, Illinois 60606
Tel: (312) 357-1313
Fax: (312) 759-5646
Frederick M. Feldman
Ronald
M. Hill
Margaret
T. Conway
Metropolitan Water Reclamation
District
of Greater Chicago
100
E. Erie Street, Room 301
Chicago, Illinois 60611
Tel: (312) 751-6587
Fax: (312) 751-6598
Attorneys for
Metropolitan Water Reclamation
District
of Greater Chicago
Dated: June
L0 2008
3
Electronic Filing - Received, Clerk's Office, June 12, 2008
