BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

4 IN THE MATTER OF:

5 WATER QUALITY TRIENNIAL REVIEW:

6 AMENDMENTS TO 35 Ill. Adm. Code

7 302.208(e)-(g), 302.504(a), 302.575(d),

8 303.444, 309.141(h); and PROPOSED

PCB No.: R02-11

9 35 Ill. Adm Code 301.267, 301.313,

(Rulemaking - Water)

10 301.413, 304.120, and 309.157

Proceedings held on March 6, 2002, at 10:00 a.m., at the

15 Illinois Pollution Control Board, 600 South Second Street, Suite

16 403, Springfield, Illinois, before Hearing Officer Marie Tipsord.

Reported by: Darlene M. Niemeyer, CSR, RPR

CSR License No.: 084-003677

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Belleville, IL 62226

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A P P E A R A N C E S

Board Members present:

Board Member G. Tanner Girard

4 Board Member Ronald C. Flemal

Board Member Thomas E. Johnson

5 Board Member Michael E. Tristano

6 Anand Rao, Technical Staff

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

BY: Sanjay K. Sofat

Assistant Counsel

Division of Legal Counsel

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

On behalf of the Illinois EPA.

12 Illinois Environmental Protection Agency panel of witness:

13 Robert Mosher

Clark Olson

14 S. Alan Keller

ENVIRONMENTAL LAW & POLICY CENTER

BY: Albert Ettinger

Attorney at Law

35 East Wacker Drive, Suite 1300

Chicago, Illinois 60601-2100

On behalf of the Sierra Club and the Environmental

Law & Policy Center of the Midwest.

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I N D E X

3 WITNESS

PAGE NUMBER

ROBERT MOSHER

CLARK OLSON

QUESTIONS TO THE AGENCY PANEL

STEVEN E. DAVIS

CYNTHIA L. SKRUKRUD

MICHAEL CALLAHAN

114

DEAN FALKNER

135

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E X H I B I T S

3 NUMBER

MARKED FOR I.D.

ENTERED

Hearing Exhibit 6

5 Hearing Exhibit 7

Hearing Exhibit 8

6 Hearing Exhibit 9

Hearing Exhibit 10

7 Hearing Exhibit 11

Hearing Exhibit 12

8 Hearing Exhibit 13

Hearing Exhibit 14

125

9 Hearing Exhibit 15

125

Hearing Exhibit 16

125

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P R O C E E D I N G S

(March 6, 2002; 10:00 a.m.)

HEARING OFFICER TIPSORD: Good morning, everyone. My name

4 is Marie Tipsord. Can you all hear me back there? Okay. At any

5 time you have problems hearing today, please let me know by

6 waving your hand, and I will ask the witnesses to speak up.

I have been appointed to serve as the Hearing Officer in

8 this proceeding entitled: In the Matter of Water Quality

9 Triennial Review: Amendments to 35 Ill. Adm. Code 302.208,

10 302.504, 302.575, 303.444, 309.141, and Proposed 35 Ill. Adm.

11 Code 301.267, 301.313, 301.413, 304.120, and 309.157. This has

12 been docketed as R02-11.

To my right is Dr. Tanner Girard, the lead Board Member

14 assigned to this matter. And to his right is Member Michael

15 Tristano. And to my left over two is Dr. Ronald Flemal. Dr.

16 Flemal and Member Tristano are both assigned to this rule, as

17 well.

In addition, we have at the end Board Member Tom Johnson.

19 And to my immediate left is Anand Rao, from our technical staff.

In addition today, we have with us William Murphy,

21 assistant to Michael Tristano; Alisa Liu, from our technical

22 staff; and I believe Erin Conley is also here.

The purpose of today's hearing is to hear the prefiled

24 testimony from the Illinois Environmental Protection Agency,

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1 Cynthia Skrukrud, Steven Davis, and Michael Callahan.

I am sorry. Cynthia, did I mispronounce your name? I am

3 sorry.

MS. SKRUKRUD: You got the Skrukrud right.

HEARING OFFICER TIPSORD: After the testimony we will allow

6 for questions to be asked. We do have prefiled questions from

7 the Sierra Club of the Agency.

You have the Sierra Club and who else are you representing,

9 Albert?

MR. ETTINGER: The usual crowd.

(Laughter.)

HEARING OFFICER TIPSORD: The environmental groups. That is

13 probably the safest way to say that. We will have those

14 questions read by Albert to the Agency. We will allow for the

15 opportunity to do follow-ups like that with those questions.

16 After the prefiled questions are asked of the Agency, then we

17 will proceed to anyone else who has questions.

Anyone may ask a question. However, I do ask that you

19 raise your hand, wait for me to acknowledge you, and after I have

20 acknowledged you, please state your name and who you represent

21 before you begin your questions. This will allow the court

22 reporter to identify you properly for the record.

Please speak one at a time. If you are speaking over each

24 other, the court reporter will not be able to get your questions

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1 on the record.

Please note that any questions asked by a Board Member or

3 staff are intended to help build a complete record for the

4 Board's decision and not to express any preconceived notion or

5 bias.

In addition to the prefiled testimony today, we will allow

7 anyone else who wishes to testify the opportunity to do so as

8 time allows. I have placed a list at the side of the room for

9 persons who wish to testify to sign up. Also to the side of the

10 room are copies of the current notice and service lists and the

11 opportunities to sign up for the notice and service lists.

If you place your name on the service list, you will

13 receive all pleadings and all prefiled testimony in this

14 proceeding. In addition, you must serve all of your filings on

15 the persons on the service list. The notice list will allow you

16 to get Board orders and Hearing Officer orders. If you have any

17 questions about which list you may wish to be on, please see me

18 at a break.

Also, just as a little reminder, since I had to make a

20 couple of phone calls this time, before you serve anything on the

21 Board, please contact the Board, either myself or the clerk's

22 office, and ask for a current copy of the service list. The

23 service list in this rulemaking is literally changing almost on a

24 daily basis. If you don't call and get it you may not have the

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1 proper service list when you make your filing.

Are there any questions about the procedures we are going

3 to follow today?

Okay. At this time I would ask Dr. Girard if he would like

5 to say anything.

BOARD MEMBER GIRARD: Yes. Good morning. On behalf of the

7 Board, I would like to welcome everyone here to the hearing this

8 morning and thank you for taking the time from your busy

9 schedules to help us do our job. We have been very pleased with

10 all of the prefiled testimony from several groups and the many

11 public comments we have gotten in this regulatory proceeding. It

12 makes our job that much easier when we have a lot of input from

13 the public, and we do appreciate it. Thank you.

HEARING OFFICER TIPSORD: Dr. Flemal or Member Tristano,

15 would you like to add anything?

BOARD MEMBER FLEMAL: Nothing additional.

BOARD MEMBER TRISTANO: No.

HEARING OFFICER TIPSORD: Thank you. Then at this time I

19 think we will proceed with the Agency. Could we have the

20 Agency's witnesses sworn.

(Whereupon Robert Mosher, Clark Olson and S. Alan Keller

were sworn by the Notary Public.)

HEARING OFFICER TIPSORD: Thank you. Go ahead.

MR. SOFAT: Good morning. I am Sanjay Sofat. I am an

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1 Assistant Counsel with the Illinois Environmental Protection

2 Agency. I work with the Bureau of Water.

With me today are three Agency witnesses. To my right is

4 Robert Mosher, who is the Manager of the Water Quality Standards

5 Unit within the Division of Water Pollution Control at the

6 Illinois Environmental Protection Agency. Mr. Mosher will be

7 available to answer any questions regarding his prefiled

8 supplement testimony or any follow-up questions.

To my immediate left is Clark Olson, who is a toxicologist

10 in the Water Quality Standards Unit of the Division of Water

11 Pollution Control. Mr. Olson will be available to answer any

12 questions regarding his prefiled supplement testimony or any

13 follow-up questions.

To Clark's left is Alan Keller, who is a Supervisor of the

15 Northern Municipal Unit of the Permit Section of the Division of

16 Water Pollution Control. Mr. Keller will answer any questions

17 regarding the BOD/CBOD part of the proposal.

Today the Agency will introduce its Errata Sheet Number 3

19 into the record. This Errata Sheet contains the Agency's recent

20 revisions to Sections 302.208(b), 302.208(e), and 304.120(g).

21 Mr. Mosher will provide the Agency rationale on proposed changes

22 to Section 302.208(b). Mr. Olson will provide the Agency

23 rationale on proposed changes to Section 302.208(e). And Mr.

24 Keller will provide the Agency rationale on proposed changes to

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1 Section 304.120(g).

At the January 29th hearing, the Agency indicated it would

3 provide the Board and the stakeholders a copy of its draft rule

4 before today's hearing. Unfortunately, we were not able to do

5 that for various reasons.

First, the Agency believes that this rulemaking proceeding

7 should solely be focused on the process used by the Agency to

8 develop the standards. In other words, the focus should be on

9 the appropriateness of the criteria used by the Agency in

10 developing the proposed standards. We believe such discussions

11 will help the Agency improve its proposal. In fact, based on the

12 information provided at the January 29th hearing, the Agency is

13 today proposing changes to Section 304.120 of the proposal.

Secondly, the Agency rules are still work in progress.

15 Currently, the management is in the process of reviewing the

16 initial working proposal for Agency rules.

Finally, the Agency will follow a separate public

18 participation process before proposing the Agency rules to JCAR

19 for its approval and final adoption. If necessary, the Agency

20 will hold public meetings to discuss this rule in an open and

21 formal setting. Based on the outcome of these meetings, the

22 Agency will determine its next course of action.

With that, I think we are ready to start with Robert

24 Mosher.

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MR. ETTINGER: Excuse me. I am not sure I understood the

2 import of all of that. Are you going to come up with the Agency

3 rules in this proceeding or not?

MR. SOFAT: We would like to keep that separate and

5 independent of this proceeding. As soon as we have a final

6 draft, then we will start the process on that.

MR. ETTINGER: So it is your position, then, that the Board

8 does not need to know about the Agency rules for the purposes of

9 this proceeding?

MR. SOFAT: The Board will be provided with the copies as we

11 have them ready, but we do not want to link both proceedings.

12 The Agency rule is -- rather, the Board rules are not dependent

13 on the Agency rules, and they should be developed in a separate

14 proceeding. That's our plan.

MR. ETTINGER: Well, in the past with the GLI rules and the

16 antidegradation rules, and perhaps some others, the Agency

17 provided the Board with a copy of how it was going to implement

18 the rules, which at that time was felt useful by many to inform

19 the Board more fully as to how -- what the import of its

20 standards are. I gather it has been decided that you don't want

21 to do that at this time?

MR. SOFAT: We believe that is not necessary, because the

23 standards -- what we are proposing here is the numbers, and we

24 would like to know if those numbers are developed properly and if

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1 the formulas were used properly. We would like to focus on the

2 process.

As far as the Agency rules are concerned, we believe that

4 during our public participation process, if everyone comes to the

5 conclusion that they should be part of the Board's rules, they

6 will be, and we will proceed then, but not at this time. Not at

7 this time. We would not like to mix the two rulemakings.

MR. ETTINGER: I guess I don't quite understand. Let's say

9 hypothetically, that everyone, after looking at your Agency

10 rules, conclude that the Board should see these. Are you then

11 going to -- are we going to reopen this proceeding at that point,

12 or what is your intention?

MR. SOFAT: We are working on the Agency rules, and we

14 believe we will have them ready in a couple of months or so. So

15 it is not that we are not in the process of developing them. It

16 is just that they are going through the process that they need to

17 go through at the Agency level, and once that is done then we

18 will make it public.

MR. ETTINGER: I don't know. Maybe we should discuss this

20 at some point. I don't know if this is the appropriate time to

21 do it. But I believe, and I think other people believe, that it

22 has been helpful to the Board and the parties participating on

23 the standards proceedings to see what the Agency rules will be or

24 at least get some sort of idea what the Agency rules will be in

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1 implementing the standards, because both the environmental and

2 economic impact of the standards can't really be understood fully

3 without getting some idea at least as to how the standards will

4 be implemented.

MR. SOFAT: Mr. Mosher will answer in general the approach

6 that the Agency will take to come up with the Agency rules, if

7 that will help the process.

MR. ETTINGER: Well, I guess we will go on at this point. I

9 think we are going to have to think about that because that is

10 not what our anticipation was as to how we would do this, nor was

11 it the anticipation of the Agency when it filed this petition.

12 And I think we are kind of changing the rules and the level of

13 information available to the Board in the middle of the game, and

14 I am very concerned about that.

HEARING OFFICER TIPSORD: Let's proceed, then, with Dr.

16 Mosher.

MR. MOSHER: My name is Robert Mosher and I am the Manager

18 of the Water Quality Standards Section within the Division of

19 Water Pollution Control at the Illinois Environmental Protection

20 Agency. I have been with the Illinois EPA in excess of 16 years.

21 Almost all of that time has been spent in my current capacity

22 where my primary responsibility is the development and

23 implementation of Water Quality Standards. I have a Master's

24 Degree in Zoology from Eastern Illinois University where I

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1 specialized in stream ecology. My testimony will cover most of

2 the Agency's responses to questions and requests for further

3 information made at the January 29th, 2002 hearing. Mr. Olson's

4 testimony will cover the remaining Agency responses to questions

5 raised at that hearing.

Hearing Officer Tipsord, at pages 49 and 50 of the January

7 29th, 2002 hearing transcript, requested a clear copy of Albert

8 Ettinger's Exhibit 4, which is the Agency's derived water quality

9 criteria, with a citation for this publication. The clear copy

10 with citation is provided as Exhibit A. We also provide the most

11 recent published list of the Agency's derived water quality

12 criteria for the Illinois Pollution Control Board's

13 consideration, and this is Exhibit B.

At transcript pages 54 through 57, Mr. Ettinger inquires

15 about the existing and proposed benzene standards. The Agency's

16 monitoring data for public water supply reflects that benzene is

17 not a problem in drinking water obtained from surface water.

18 Since 1989, there have been only four detections in treated

19 drinking water from lakes at Decatur, Staunton, and Carlinville,

20 and these were 1.3 micrograms per liter or less.

There are undoubtedly several reasons for this low

22 incidence of benzene detection. First, surface waters of the

23 state are not contaminated with benzene. Appendix F in our

24 original Agency petition describes that. Second, benzene is not

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1 very soluble in water and therefore would tend to float on the

2 surface whereupon it would volatilize to the atmosphere. Public

3 water supply intake structures are designed to withdraw water

4 from under the surface, thus avoiding floating substances like

5 benzene. Most benzene that would find its way into streams and

6 lakes would be from spills. Major spills must be reported, which

7 allows public water supplies to stop withdrawing water and avoid

8 the intake of a short-term contamination event.

At this time, we believe that no specific benzene standard

10 is necessary at Subpart C. The existing general provision at 35

11 Illinois Administrative Code 302.305 is sufficient to protect

12 intakes from hazardous levels of benzene. However, if the Board

13 wishes, the Agency will consult further with our public water

14 supply experts and decide if a Subpart C standard is desirable

15 and then develop a suggested value.

At transcript page 66, Mr. Rao asks about the cadmium

17 standard that existed prior to the 1990 update. The previous

18 standard was 50 micrograms per liter, the same value now present

19 as a cap to the acute standard. A hardness value of greater than

20 425 milligrams per liter would have to be present to have an

21 acute standard exceed 50 micrograms per liter.

At transcript page 66 Mr. Rao asks for typical hardness

23 levels for the waters of the state. Exhibit C is a list of

24 Ambient Water Quality Monitoring stations maintained by the

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1 Agency. Our designation "critical hardness" means that these are

2 the hardness values that occur under low flow conditions in the

3 stream, the most critical time for metals concentrations and

4 potential impacts to aquatic life. If the critical hardness

5 value is marked with an asterisk, the 25th percentile hardness

6 value from that station is given. For the other stations, the

7 hardness value given is the 10th percentile hardness value from

8 the measurements taken at 10th percentile and lower stream flows.

9 Eight out of the 208 critical hardness values are above 425

10 milligrams per liter. These are generally found in streams that

11 have a past or present history of mining.

At transcript pages 69 and 70, Mr. Ettinger asks whether

13 the existing General Use cadmium water quality standards are

14 identical to the most recent, 1985, national criteria for

15 cadmium. The chronic standard for cadmium at 35 Illinois

16 Administrative Code 302.208(e) is identical to the national

17 chronic criterion of 1985. The acute criterion for -- I am

18 sorry. That should read the acute standard for cadmium is less

19 stringent than the national criterion of 1985.

At a hardness of 200 milligrams per liter, the acute

21 national criterion value for total cadmium is 8.6 micrograms per

22 liter. At this hardness, the cadmium standard at 35 Illinois

23 Administrative Code 302.208(e) is 21.3 micrograms per liter.

24 When the Board adopted this standard in 1990, the Agency had

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1 regionalized the national criterion in its proposal to reflect

2 only warm water species sensitivities to cadmium.

At transcript page 111, Mr. Rao questions the accuracy of

4 the conversion factor for the Lake Michigan acute cadmium

5 standard. There is, indeed, a typo in the formula that we must

6 correct. An Errata Sheet is submitted to the Board to correct

7 this typo. The Agency wishes to thank Mr. Rao for finding this

8 error.

This concludes my testimony. I will be supplementing this

10 testimony as needed during the hearing. I would be happy to

11 address any questions.

HEARING OFFICER TIPSORD: Before we proceed, let's take care

13 of some housekeeping matters.

Exhibit A attached to Mr. Mosher's prefiled testimony, we

15 will use that as a replacement copy for Exhibit 4, entered at the

16 first hearing. So we will mark what was Exhibit A to his

17 attached testimony as Exhibit Number 4.

Exhibit B and Exhibit C, if there is no objection, will be

19 entered as Exhibit Number 6 and Exhibit Number 7, respectively.

Is there any objection? Seeing none, we will admit those

21 as Exhibit 6 and as Exhibit 7.

(Whereupon said documents were duly marked for purposes of

identification as Hearing Exhibits 6 and 7 and entered into

evidence as of this date.)

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HEARING OFFICER TIPSORD: Also on the Errata Sheet, Mr.

2 Sofat, when you were talking about the Errata Sheet in your

3 opening statement, you talked about proposing a change to 304.120

4 at this hearing. Is that included in the Errata Sheet?

MR. SOFAT: Yes.

HEARING OFFICER TIPSORD: Okay. So this is not just an

7 Errata Sheet, but also a proposed language change?

MR. SOFAT: Yes.

HEARING OFFICER TIPSORD: All right. I just wanted to

10 clarify that.

MR. SOFAT: Sure, sure.

HEARING OFFICER TIPSORD: Okay. If there is no objection,

13 we will admit the Errata Sheet then as Exhibit Number 8. Seeing

14 none, that is admitted.

BOARD MEMBER FLEMAL: Is that two or three?

HEARING OFFICER TIPSORD: This is the third Errata Sheet.

17 We got one in the prefiled testimony and one at the first

18 hearing, right?

MR. SOFAT: Right.

HEARING OFFICER TIPSORD: Okay.

(Whereupon said document was duly marked for purposes of

identification as Hearing Exhibit 8 and entered into

evidence as of this date.)

HEARING OFFICER TIPSORD: Okay. With that, let's proceed

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1 with your testimony and then we will go to questions.

MR. SOFAT: Mr. Olson, I am going to give you this document

3 that has been marked as IEPA Exhibit Number 2. Do you recognize

4 this document?

MR. OLSON: Yes, I do.

MR. SOFAT: Would you please tell us what this document is?

MR. OLSON: Well, this is my testimony for today, on the

8 questions that were given to us by the Board.

MR. SOFAT: Is that a true and accurate copy of your

10 supplement testimony that has been filed with the Board?

MR. OLSON: Yes, it is.

MR. SOFAT: Could you please present your testimony to the

13 Board.

MR. OLSON: My name is Clark Olson. I have been employed

15 by the Illinois Environmental Protection Agency for over 20

16 years. I work in the Water Quality Standards Unit of the

17 Division of Water Pollution Control as a toxicologist. I have

18 been involved with the water quality standards issues throughout

19 my career with the Agency and have participated in several

20 previous rulemakings of this type.

I have a Ph.D. in Biology from the University of Miami in

22 Florida, and have done postdoctoral research in toxicology at

23 North Carolina State University. My testimony will cover the

24 questions that were specially addressed to me at the January

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1 29th, 2002 hearing.

At transcript pages 54 to 57, Albert Ettinger inquires

3 about the existing and proposed benzene standards. The human

4 health standard proposed for General Use waters protects humans

5 from exposure to harmful levels of benzene through the

6 consumption of locally caught fish and from any incidental

7 contact with water. This proposed standard, 310 micrograms per

8 liter, is identical to the Lake Michigan human health standard

9 protecting this aspect of exposure for waters in the Lake

10 Michigan Basin at a risk level of ten to the minus fifth. The

11 existing human health criterion for General Use waters, 21

12 micrograms per liter, is based on a risk level of ten to the

13 minus sixth. We recommend the 310 micrograms per liter value for

14 uniformity sake and as a reflection of more recent risk policy.

At transcript pages 101 through 108, Mr. Rao asks a series

16 of questions pertaining to the methods the Agency used to derive

17 the proposed standards. While Appendix F of the Agency's

18 original proposal details the methods utilized to derive each of

19 these proposed standards, additional explanation and a concise

20 tabular presentation of the methods used is necessary.

Madam Hearing Officer, I didn't ask our lawyer exactly how

22 to present this. Do you want me to read through the table or can

23 that be -- or summarize it or --

HEARING OFFICER TIPSORD: It might be easier if we just

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1 admit the table as an exhibit. It would probably be much easier.

MR. OLSON: Okay.

HEARING OFFICER TIPSORD: We will just admit it as an

4 exhibit.

MR. OLSON: Okay. And then I can answer questions about

6 that afterwards.

HEARING OFFICER TIPSORD: Okay.

MR. OLSON: The Agency was very consistent in using Subpart

9 E methodology for all proposed standards except for the chronic

10 standard for weak acid dissociable cyanide. We recommend

11 adopting numerical standards based on Subpart E procedures

12 because these include more up-to-date thinking on criteria

13 derivation. Our reasons to use the Subpart F procedures for weak

14 acid dissociable cyanide were based on precedent. The Board

15 adopted a site-specific regulation several years ago for several

16 streams in Northeastern Illinois, 35 Illinois Administrative Code

17 303.444. The chronic value here is ten micrograms per liter.

18 The State of Ohio also has a warm water chronic cyanide standard

19 of approximately ten micrograms per liter.

Mr. Rao made mention of the fact that sometimes the Lake

21 Michigan standards were less stringent than the General Use

22 standards. This seems backward from the point of view that Lake

23 Michigan has what are usually considered more sensitive species,

24 for example, trout and salmon. This is explained by the fact

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1 that when deriving standards for warm waters, cold water species

2 are dropped from the data sets. This reduces the number of

3 species making up the body of information, which increases

4 uncertainty, and thereby in some cases, lowers the standard. We

5 note that the differences between warm water and cold water

6 standards as derived using Subpart E methods is usually minor.

This concludes my testimony. I will be supplementing this

8 testimony as needed during the hearing. I would be happy to

9 address any questions.

MR. SOFAT: That concludes our witnesses.

HEARING OFFICER TIPSORD: Okay. At this time, then, we will

12 proceed to the prefiled questions from the environmental groups

13 that were a part of their prefiled testimony submission. We will

14 have them read into the record from the environmental groups and

15 then the Agency may answer. We will stick with any follow-ups in

16 that realm as well.

So if anyone has a follow-up question to one asked by the

18 environmental groups, please raise your hand and be recognized,

19 and we will proceed that way so that we can keep the record as

20 clean as possible.

MR. ETTINGER: I am a little confused here. We are not

22 going to ask about the testimony that was just read now? We are

23 going to save that until later?

HEARING OFFICER TIPSORD: Yes, we will just do the prefiled

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1 questions at this point.

MR. ETTINGER: Okay. We are doing the prefiled questions.

3 Am I supposed to read the whole sheet now or --

HEARING OFFICER TIPSORD: One at a time, read question

5 number one, and they will answer, and then we will go to the

6 testimony.

MR. ETTINGER: Okay. Question number one. If the proposal

8 is adopted, is it the intention of the IEPA to regulate

9 deoxygenating wastes by issuing permits that use a CBOD5 effluent

10 limit instead of a BOD5 in every instance in which a BOD5 limit

11 is now specified by Section 304.120?

MR. KELLER: The Agency will utilize the CBOD5 effluent

13 limit for all municipal treatment plant discharges. The Agency

14 will utilize the CBOD5 effluent limit for all industrial

15 treatment plant discharges unless an effluent limitation for BOD5

16 is specified for a categorical industry and is more stringent

17 than limitations specified by 304.120 pursuant to the federal

18 regulations for that specific categorical industry. The Agency

19 will use BOD5 in those instances unless the Development Documents

20 for the specific categorical industry indicate that CBOD5 is the

21 applicable standard.

The Agency respectfully requests that the Board read pages

23 11 through 19 of the March 7th, 1972 Opinion of the Board

24 entitled, "In the Matter of: Effluent Criteria and Water Quality

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1 Standards Revisions" concerning the discussions of, quote, 404

2 Deoxygenating Wastes, unquote. In the opinion, the Board

3 provided an excellent synopsis of testimony on treatment

4 technology, economics of treatment technology, and effects on

5 dissolved oxygen water quality. In this Opinion, Dr. Pfeffer

6 states that, quote, the BOD5 test principally measures the

7 carbonaceous BOD and ignores the often delayed but eventual

8 oxygen demand exerted by ammonia, unquote.

In addition, the Board clearly identified other problems,

10 such as combined stormwater, combined sewer overflows and ammonia

11 control as problems facing communities and satisfactory stream

12 quality. Ammonia control was clearly identified as a separate

13 problem and required additional treatment beyond secondary and

14 tertiary treatment requirements of proposed Rule 404

15 Deoxygenating Wastes. The nitrogenous biochemical oxygen demand

16 should therefore not be included in the BOD5 effluent limitations

17 of 304.120.

MR. ETTINGER: Do you want me to ask follow-up on that first

19 question then?

HEARING OFFICER TIPSORD: Yes.

MR. ETTINGER: Okay. The first thing you said is I gather

22 that you will always be basically substituting CBOD5 where it

23 says BOD5; is that correct?

MR. KELLER: Yes.

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MR. ETTINGER: All right. As to industrials that won't

2 always be the case because of these federal regulations?

MR. KELLER: Correct, for the categorical industries.

MR. ETTINGER: Now, is that -- I got this Errata Sheet

5 today. This is a third change -- this is another change to the

6 Agency's position regarding how to deal with CBOD5 industrials;

7 is that correct?

MR. KELLER: Well, it is just a clarification. We have to

9 follow the federal regulations anyway. The verbiage is pretty

10 much intact. The only thing we inserted was the reference to

11 treatment works treating industrial waste, and that is just to

12 make sure that everyone knows that we will be looking at

13 industries also with this same rule.

MR. ETTINGER: Okay. So the date of the last hearing we

15 found out that you were including industrials, and then today we

16 have another reform as to how are going to deal with industrials?

MR. KELLER: Correct.

MR. ETTINGER: Okay. In your answer -- I am sorry. I am

19 losing control of my papers, because I wasn't sure of what the

20 order would be.

In your answer you indicated that the Board should read

22 these particular pages of the March 7, 1972 Opinion of the Board,

23 and that is, In the Matter of: Effluent Criteria and Water

24 Quality Standards Revisions. You also refer to the Dr. Pfeffer

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1 study.

MR. KELLER: Dr. Pfeffer's statement.

MR. ETTINGER: Dr. Pfeffer's statement. In part of that,

4 he, Dr. Pfeffer, I believe, does a study. On page 14 of the

5 Opinion Dr. Pfeffer says, using a modified form of the

6 Streeter-Phelps equation, he demonstrates that given certain

7 conditions, including a stream reaeration rate, he says it is not

8 atypical for small streams with low dilution ratios for dissolved

9 oxygen standards for aquatic life can often be met with ten

10 rather than four milligrams per liter of BOD, even in the total

11 absence of dilution.

My question is, as to that, do you know whether Dr. Pfeffer

13 did that study using BOD or CBOD?

MR. KELLER: I believe he used CBOD, because there was

15 another factor for ammonia in that equation.

MR. ETTINGER: Well, do you know how much ammonia he assumed

17 would be discharged along with the CBOD in calculating that the

18 ten CBOD would be protective of the dissolved oxygen standard?

MR. KELLER: I am not exactly sure what he assumed on that,

20 no.

MR. ETTINGER: Do we have the Pfeffer study?

MR. KELLER: No, I don't.

MR. ETTINGER: Okay. Do we know -- so what is the other

24 equation that you say he used that included the BOD?

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MR. KELLER: It is part of the modified Streeter-Phelps

2 equation.

MR. ETTINGER: So the Streeter-Phelps equation. The

4 Streeter-Phelps equation includes a separate factor for BOD and

5 CBOD?

MR. KELLER: No, it includes a separate factor for BOD and

7 for ammonia.

MR. ETTINGER: Okay. So we should assume that here where

9 the Board refers to the equation that Mr. -- that Dr. Phelps

10 used --

MR. KELLER: Pfeffer.

MR. ETTINGER: I am sorry. Pfeffer. That he meant here

13 CBOD, and then there was some assumption as to the amount of

14 ammonia that was going to be discharged?

MR. KELLER: That would probably be true.

MR. ETTINGER: But we don't know what that ammonia level

17 was?

MR. KELLER: I don't know what he assumed, no.

MR. ETTINGER: Okay. I would request that eventually we do

20 find the Pfeffer study so that we can clarify these points. I

21 assume that they have it somewhere.

With that, do we now have other people with follow-up on

23 the first question?

HEARING OFFICER TIPSORD: Yes, let's do, to keep the record

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1 clear.

MR. ETTINGER: Okay.

HEARING OFFICER TIPSORD: Just for the record, the

4 rulemaking that has been identified by name is also -- it was

5 docketed as R71-14, and it was a Board rulemaking in the early

6 1970s.

Are there any other follow-ups to questions Mr. Ettinger

8 had?

I just have a small follow-up to the question about

10 304.120, and that is you refer to federal regulations. Would it

11 be possible to get a citation there? I don't expect you to

12 answer that today, but it will probably help with JCAR if we can

13 have a citation there.

MR. KELLER: Well, that would include a lot of different

15 citations for all of the different categorical industries, and

16 that would be -- that may be very long.

HEARING OFFICER TIPSORD: If we could at least get it for

18 the record and I could use that answer when JCAR asks me for it.

19 They may not want it in, but let's at least get it in the record

20 so that I have it available.

MR. SOFAT: We will do that.

HEARING OFFICER TIPSORD: Thank you. Anything else? Okay.

23 Go ahead.

MR. HARSCH: I would like to make a raise to the defense of

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1 the Agency witness. The number of federal --

HEARING OFFICER TIPSORD: We need you to identify yourself

3 and who you are representing, please.

MR. HARSCH: I guess I am here today on behalf of myself

5 together with IAWA.

The number of federal categorical pretreatment standards

7 that have a BOD limitation in them is -- would be in the -- close

8 to probably almost 100. There are many, many, many of them.

HEARING OFFICER TIPSORD: Okay. Like I said, we can just

10 get those in the record and that's the answer that I can then

11 give if the staff at the Joint Committee asks for a citation to

12 be added.

Okay. Go ahead. I don't see any other follow-ups, so

14 proceed to the next question.

MR. ETTINGER: Well, actually, I would like to follow-up on

16 Mr. Harsch's clarification.

Do you know why the federal standards use BOD rather than

18 CBOD standards in these hundreds of industrial?

MR. HARSCH: Albert, I am not sure that they do. I mean, I

20 think that they refer to both of them.

HEARING OFFICER TIPSORD: Mr. Harsch, I am going to have to

22 ask that you be sworn.

(Whereupon Mr. Roy Harsch was sworn by the Notary Public.)

HEARING OFFICER TIPSORD: Thank you.

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MR. HARSCH: The answer is I think they refer to both of

2 them, if you look at them.

MR. ETTINGER: Well, I --

MR. HARSCH: When they are written.

MR. ETTINGER: Then we will need some clarification here

6 because the thrust of this revision to your -- your third

7 revision to this rule is that there are some federal regulations

8 as to industrials that require using a BOD as opposed to a CBOD,

9 and that's why you put this clarification in here; is that

10 correct?

MR. KELLER: It may require use of BOD.

MR. ETTINGER: But you don't know how many there are?

MR. KELLER: I think you have to really go through and

14 review all of the Development Documents for each specific

15 categorical industry, and that includes a document of hundreds of

16 pages a lot of times. Most of the industries or probably all of

17 them do use the term BOD5. Some industries also use COD.

I could not find, in my brief looking the other day, any

19 that use strictly CBOD5, but I think you need to go to the

20 Development Documents on some of those. You need to also see if

21 they are measuring for ammonia with those industries, and I think

22 some of the same logic would apply as far as getting meaningful

23 numbers for determination of compliance.

MR. ETTINGER: Okay. You don't know why these -- well, we

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1 don't know which ones they are, but you don't know why these

2 rules in this case would specify BOD5 instead of CBOD5?

MR. KELLER: No.

MR. ETTINGER: Okay. I think some of these questions will

5 turn out to be redundant given the previous answer, but I am

6 going to ask them anyway since it was filed.

Number two. If the proposal is adopted, is it the

8 intention of the IEPA to regulate deoxygenating wastes now

9 covered by 304.120(b) with a limit of 20 milligrams per liter

10 CBOD5?

MR. KELLER: Yes, unless categorical standards are more

12 stringent, as stated in 1 above.

MR. ETTINGER: Three -- sorry.

HEARING OFFICER TIPSORD: Go ahead.

MR. ETTINGER: Okay. Three. If the proposal is adopted, is

16 it the intention of the IEPA to regulate deoxygenating wastes now

17 covered by 304.120(c) with a limit of ten milligrams per liter

18 CBOD5?

MR. KELLER: Yes, unless categorical standards are more

20 stringent, as stated in 1 above.

MR. ETTINGER: I trust there is no follow-up. Four. How

22 does IEPA currently assure that discharges of deoxygenating

23 wastes will not cause violations of dissolved oxygen standards?

MR. MOSHER: The Agency conducts Facility Related Stream

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1 Surveys on the receiving streams of many NPDES permitted

2 discharges. The results are used to develop the 305(b) and

3 303(d) lists that are published by the Agency on a regular basis.

4 Causes and sources of impairment may be listed for waters not

5 fully supporting designated uses, and these may include dissolved

6 oxygen impacts due to effluent BOD. Facility inspections are

7 also conducted that stress the operation, maintenance and

8 performance of the plant. Problems are sometimes noted during

9 these inspections that would have bearing on stream dissolved

10 oxygen levels.

MR. ETTINGER: Okay. What causes or what triggers a

12 facility related stream survey?

MR. MOSHER: Well, there could be many reasons. We, in

14 general, try to cover facilities on a cycle corresponding to

15 permit renewal. In recent years, our duties have expanded and we

16 have not been able to do that very often. But other reasons for

17 doing facility related stream surveys are noted problems that

18 might be observed by a field inspector. It might be observed by

19 a basin, a general basin stream survey, where we note a problem

20 and we say, well, we better go look at a facility. They might be

21 the source of that problem. So there is quite a few reasons that

22 we schedule facility related stream surveys.

MR. ETTINGER: How often? There is about 5,200 NPDES

24 permits in Illinois now, is that correct, ballpark?

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MR. KELLER: It might be more than that.

MR. ETTINGER: Okay. About how many facility related stream

3 surveys do you do a year?

MR. MOSHER: I would say the average number done per year

5 for over the last ten years -- and, again, I said the last couple

6 of years we have not done very many at all. But it is usually

7 around 20, state-wide.

MR. ETTINGER: In the 1972 Board decision that there was

9 reference to, there was discussion of this Streeter-Phelps model.

10 Does the Agency ever run a Streeter-Phelps model on a discharge

11 to determine whether or not a proposed discharge would cause a

12 violation in the dissolved oxygen standards?

MR. KELLER: It is used now for the determination of lagoon

14 exemptions, I believe.

MR. ETTINGER: It is used --

MR. KELLER: It was originally also included for determining

17 whether a discharge could go to the 10-12 limitations versus the

18 4-5 limitations, BOD and suspended solids.

MR. ETTINGER: Okay. So it was originally used.

MR. KELLER: Right.

MR. ETTINGER: No one has a 4-5 limit now, do they?

MR. KELLER: No.

MR. ETTINGER: The only one who had a 4-5 limit is the North

24 Shore Sanitary District, and they removed their discharge?

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MR. KELLER: There was some that had 4-5 limitations and

2 then they went through the Streeter-Phelps analysis and received

3 the 10-12 standards.

MR. ETTINGER: That was when?

MR. KELLER: In the early 1970s.

MR. ETTINGER: Okay. So other than doing these facility

7 related stream surveys and inspecting the facilities to make sure

8 they are operating properly, we are not really looking at

9 dissolved oxygen in the streams resulting from discharges?

MR. MOSHER: There is another program probably worthy to

11 mention. It is the 305(b) report, and then the 303(d) list of

12 impaired waters. To put those lists together, we use not only

13 facility related stream survey data but also intensive basin

14 survey data, ambient water quality monitoring network data.

And as you know, the 303(d) list of impaired waters are

16 those waters that will eventually have a TMDL study. So there is

17 a lot of data collected by the Agency that goes into evaluations

18 of streams, and sometimes dissolved oxygen is a cause of

19 impairment, and the TMDL program is meant to validate any

20 assumptions made by more intensive study.

MR. ETTINGER: Okay. Illinois has never completed a TMDL,

22 has it?

MR. MOSHER: I don't believe there is a published report out

24 for TMDL yet, no.

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MR. ETTINGER: So no permit conditions have ever been set in

2 Illinois based on TMDL?

MR. MOSHER: No. But given the recent nature of conducting

4 or having the 303(d) list, that is not too surprising. It has

5 only been the last few years that we have been looking at that.

HEARING OFFICER TIPSORD: Okay. Any other follow-up? Okay,

7 go ahead.

MR. ETTINGER: Okay. Number five. Does IEPA ever regulate

9 the discharge of ammonia to an extent greater than needed to

10 prevent ammonia toxicity in order to prevent violations of

11 dissolved oxygen standards? If so, please describe the number of

12 times that this has been done and explain the circumstances in

13 which this has been done.

MR. MOSHER: No.

HEARING OFFICER TIPSORD: Okay. Go ahead. Oh, wait. I am

16 sorry. Anand does have a follow-up.

MR. ETTINGER: I can't see behind me, so I don't know

18 whether to start another one.

HEARING OFFICER TIPSORD: Mr. Rao.

MR. RAO: Yes, I have a follow-up question on that. If you

21 are not setting an ammonia permit limit to prevent the violation

22 of dissolved oxygen -- we heard earlier that we don't have to

23 worry too much about the nitrogenous oxygen demand because we

24 have the ammonia standards to take care of that.

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So could you explain a little bit more about the earlier

2 statement, you know, whether there is a need for additional

3 controls on ammonia or not?

MR. MOSHER: Well, I will start off by saying that in

5 situations where dischargers discharge to smaller streams, we

6 have very stringent ammonia limits based on the toxicity of

7 ammonia and the ammonia water quality standard in the

8 regulations. As that dilution ratio increases, in other words,

9 you have a bigger river or a proportionally smaller discharge, we

10 do mixing zone calculations to decide whether ammonia needs to be

11 regulated in these types of discharges.

And for situations where we have the Mississippi River, for

13 example, I don't believe there are many dischargers that are

14 given ammonia limits because simply the dilution is so tremendous

15 that ammonia is diluted very quickly to very low levels. That is

16 entirely driven by the ammonia water quality standard and the

17 mixing zone regulations. Maybe Al has something to add to that.

MR. KELLER: No, not really.

MR. ETTINGER: Following up on --

MR. FALKNER: On a related question --

HEARING OFFICER TIPSORD: You need to identify yourself,

22 please.

MR. FALKNER: I am sorry. My name is Dean Falkner, with the

24 Rock River Water Reclamation District.

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HEARING OFFICER TIPSORD: Thank you.

MR. FALKNER: I have a follow-up question along the idea of

3 the nitrification. Treatment plants do, in fact, have a

4 nitrification requirement to address the toxicity. Don't most of

5 the treatment plants typically fully nitrify and result in

6 relatively low ammonia concentrations unless there was some

7 biological upset? And I guess I am asking for a point of

8 clarification on that.

MR. KELLER: I believe that's a true statement.

MR. FALKNER: So even if they didn't have an extremely

11 stringent nitrification on it, let' say it is only .5, because it

12 is a biological treatment plant, typically you don't want to turn

13 your triggers on and off, so you are going to wind up with an

14 effluent value, such as ours, at .1 or below, very commonly.

HEARING OFFICER TIPSORD: Is that a question or a statement?

MR. FALKNER: That part was a statement.

HEARING OFFICER TIPSORD: Okay. Well, let's have you sworn

18 in, then.

MR. FALKNER: Okay.

(Whereupon Mr. Dean Falkner was sworn by the Notary

Public.)

HEARING OFFICER TIPSORD: Thank you.

MR. ETTINGER: Okay. Could I just follow-up on Bob's

24 response to -- I am sorry.

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MR. RAO: Anand Rao.

MR. ETTINGER: I am sorry. To Anand's question. The

3 Mississippi River, in various pools, has been reported as having

4 a dissolved oxygen problem, does it not?

MR. MOSHER: I don't have that information. We could look

6 in the 303(d) list and find that out.

MR. ETTINGER: Well, let's say hypothetically, for example,

8 that there was an issue regarding a 3-M permit discharging into a

9 pool north of Moline, the famous slime pool listed in the Iowa

10 TMDL list. Do you recall that?

MR. MOSHER: Yes, I do.

MR. ETTINGER: Okay. So there was a dissolved oxygen

13 problem in the Mississippi River in that pool; is that correct?

MR. MOSHER: I believe that is another state. I visited

15 that state to look at that situation and, yes, there was slime

16 growing everywhere, and it was a side channel of the river. So

17 you didn't have the full force of the flow, but, yes, at the time

18 I visited I would have guessed there would be a dissolved oxygen

19 problem there.

MR. ETTINGER: Okay. So because there is no ammonia

21 toxicity problem, the municipal discharger typically would

22 receive no ammonia limit under the current IEPA practice?

MR. MOSHER: That's true.

MR. ETTINGER: Thank you. Let me go on, then, to the next

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1 question. I am sorry. What am I down to here?

MR. KELLER: Six.

MR. ETTINGER: Six. Does IEPA currently require industrial

4 dischargers of deoxygenating wastes to limit CBOD5 or BOD5?

5 Under what circumstances do industrial permits have BOD5 limits?

6 Under what circumstances do permits have CBOD5 limits?

MR. KELLER: In general, NPDES permits for industrial

8 dischargers have limitations for BOD5. However, there are

9 permits for industrial dischargers that have limitations for

10 CBOD5 also. The Agency would propose utilizing a consistent

11 method, as stated in items 1, 2 and 3.

MR. ETTINGER: Okay. Seven. Does IEPA currently calculate

13 the total oxygen demand of a proposed discharge during the

14 permitting process?

MR. KELLER: No. The Agency utilizes the applicable

16 standards provided in 304.120, which is based on the dilution

17 ratios in streams. The Agency wishes to extract the following

18 from the March 7th, 1972 Opinion of the Board entitled, In the

19 Matter of: Effluent Criteria and Water Quality Standards

20 Revisions.

Quote, BOD5 -- this is on page five -- I am sorry. I

22 didn't reference that, but it is on page five. Quote, BOD. The

23 May 12th draft proposed a stream standard of 7.0 for biochemical

24 oxygen demand, five days. This was intended to facilitate the

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1 determination of the degree of treatment required of dischargers

2 without resort to complex formulas for computing oxygen sag and

3 recovery. The evidence is that the effect of a given level of

4 BOD on a stream is too dependent upon reaeration rates to make

5 any prescribed standards meaningful. We have omitted it and will

6 rely on the dilution ratios of Rule 404, together with proof of

7 violation of dissolved oxygen standards by stream studies or

8 otherwise, until more adequate proof is presented, unquote.

Due to the above Board Opinion and the applicability of a

10 stream BOD standard, the Agency does not believe there is a need

11 for calculating the total oxygen demand in the absence of any

12 effluent limitations for this parameter.

HEARING OFFICER TIPSORD: Before we proceed, I am going to

14 sort of take a little unprecedented step here. And that is given

15 the amount of reference to the Board's Opinion and Order in

16 R71-14, and it is also referenced in some additional prefiled

17 testimony, at this point in time I am going to use my prerogative

18 as the Hearing Officer to admit that into this record as Exhibit

19 Number 10. And I will place that in the record when I return to

20 Chicago, a copy of it, so that it is in the record of this

21 proceeding. Given the amount of reference it is getting, I think

22 it is probably appropriate, if there is no objection.

All right. Seeing none, we will admit that as Exhibit

24 Number 10.

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(Whereupon said document was duly marked for purposes of

identification as Hearing Exhibit 10 and entered into

evidence as of this date.)

HEARING OFFICER TIPSORD: We are ready to go on unless you

5 have follow-up on that.

MR. ETTINGER: Off the record.

HEARING OFFICER TIPSORD: Okay.

(Discussion off the record.)

HEARING OFFICER TIPSORD: Okay. Back on the record.

Mr. Ettinger, before you go on to Question Number 8, there

11 is a question.

MR. ETTINGER: Okay.

BOARD MEMBER GIRARD: This is a question which arises, in my

14 mind, after listening to several of these questions dealing with

15 the ammonia and deoxygenating waste issues that have come up in

16 these several questions.

So I have a question, probably for Mr. Mosher. Are there

18 any published models which show that if you have stringent

19 ammonia effluent limits you are mitigating oxygen demand from the

20 ammonia in aquatic environments?

MR. MOSHER: Well, I don't know personally of any models,

22 but we have got years and years of real life experience. We have

23 had dischargers regulated for ammonia for, oh, probably the last

24 15 years very consistently. And we have our stream studies,

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1 which generally show that there aren't dissolved oxygen problems

2 in streams below these dischargers. So I think we are almost

3 beyond the need for a model. We have got so much real experience

4 in the matter.

BOARD MEMBER GIRARD: So has anybody put all this data

6 together into a publishable paper, or is there some internal

7 document, or has it been -- in other words, has it been put

8 together anywhere that you could bring that in and introduce it

9 in this proceeding? It would be very helpful.

MR. MOSHER: Well, I don't know of a specific summary. I

11 could bring in examples of facility related stream surveys that

12 we have done that show no impacts from discharges, if that would

13 be helpful.

BOARD MEMBER GIRARD: Yes. I would like to see that.

MR. MOSHER: We do feel that where treatment plants are

16 meeting their BOD solids and ammonia limits, we don't see

17 dissolved oxygen problems. I am not saying there is no cases at

18 all where someone is not meeting those limits, somebody is having

19 problems with their treatment plant. And we do pick up on that

20 and, in fact, that's where we direct our efforts to try to cure

21 those problems where they happen. But by and large, the average

22 or typical result is no impact. And I will -- I will bring in

23 some recent examples of that, or we will send some.

BOARD MEMBER GIRARD: Okay. Thank you.

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HEARING OFFICER TIPSORD: Dr. Flemal?

BOARD MEMBER FLEMAL: Let me try attacking this fundamental

3 question of the role of nitrogen in the in stream dissolved

4 oxygen situation just from a little different angle. Let's cover

5 some basics.

Stream DOs commonly, or with some regularity, at any rate,

7 go below our standard; is that not correct?

MR. MOSHER: That's correct.

BOARD MEMBER FLEMAL: There are multiple causes, are there

10 not, in your understanding, for this circumstance?

MR. MOSHER: That's correct, and including completely

12 natural causes.

BOARD MEMBER FLEMAL: What are some of the causes for

14 decreased DO in streams?

MR. MOSHER: Sediment oxygen demand that could be

16 contributed during storm events, possibly poorly controlled CSO

17 discharges, or just purely stormwater discharges. Dams or

18 obstructions in streams that tend to create deep pools without

19 much flow. The respiration of algae during nighttime hours will

20 reduce DO.

BOARD MEMBER FLEMAL: So there is quite a range of

22 phenomenon that are somehow related to DO concentrations going

23 below what we set as a standard?

MR. MOSHER: Yes.

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BOARD MEMBER FLEMAL: In your experience, has there been

2 circumstances where ammonia discharges from point sources,

3 effluence of any sort, have been responsible for those DO sags?

MR. MOSHER: Well, I am sure that in the past there has been

5 a contribution from ammonia, especially years ago when ammonia

6 was not controlled, as we are up to the point now. Usually if

7 there is ammonia there is also other forms of BOD present, and so

8 it would be hard to purely separate all that out. But, yes,

9 ammonia would contribute.

BOARD MEMBER FLEMAL: It would contribute at least in some

11 circumstances?

MR. MOSHER: Yes.

BOARD MEMBER FLEMAL: Do you have any sense of the magnitude

14 of that contribution?

MR. MOSHER: At the present time, we do not suspect that

16 there are situations where ammonia is a major contributor. DO

17 problems at the present time have been -- well, there has been a

18 trend of increased DO in the state and fewer and fewer cases of

19 problems with DO. And that's a result of better treatment at

20 point source dischargers, better treatment of storm water and

21 CSOs and lots of things.

So it is -- I would say it is very rare to have a DO

23 problem today from purely a point source, where you would just

24 say the classic textbook example of DO sag in a stream is coming

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1 from the dry weather discharge of a sewage treatment plant or

2 industrial facility.

BOARD MEMBER FLEMAL: Including all forms of oxygen demand

4 that that point source may be exerting?

MR. MOSHER: Correct.

BOARD MEMBER FLEMAL: Okay.

HEARING OFFICER TIPSORD: Mr. Harsch?

MR. HARSCH: I guess as a follow-up, it is very rare, is it

9 not, to have a DO sag below a treatment plant whose treatment

10 scheme includes properly functioning nitrification?

MR. MOSHER: Yes. Because, again, those types of treatment

12 plants are located on smaller streams, and they have typically

13 the best kind of treatment that we would find anywhere to meet

14 their lower limits.

MR. HARSCH: You said -- as a follow-up to Albert's

16 question, you went over and viewed that data in our adjoining

17 state where there was reported a BOD problem in that back water

18 area of the Mississippi River, and that reported BOD excursion

19 was in the back water area of the Mississippi.

Was that DO problem reported from a DO measurement that

21 occurred from samples taken in the morning after a diurnal

22 nighttime event?

MR. MOSHER: Well, it has been several years since I have

24 looked at that situation. Maybe I can describe what was going on

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1 there. There was a large facility on the Iowa side of the

2 Mississippi River that did grain processing. I don't know what

3 exactly they did, but they took grain and they made products out

4 of the grain, and they had discharged into a side channel of the

5 Mississippi River.

MR. HARSCH: Wasn't the sampling locations where the DO --

7 where the DO measurements were taken that gave rise to the

8 reported DO excursions at a boat launch location, and the actual

9 DO reported violations at a boat launch, and samples taken at

10 approximately 8:00 a.m. in the morning, the reported values?

MR. MOSHER: Yes, the location was downstream from this side

12 channel with this discharger, and I am not exactly sure if they

13 were -- what time of day they were taken. I am sorry. It has

14 been quite awhile ago.

MR. HARSCH: Okay.

MR. MOSHER: We could provide that data for the record.

HEARING OFFICER TIPSORD: Okay. If you would, please.

MR. HARSCH: If that data was taken in the morning, in the

19 early hours, would that value be a result of the diurnal oxygen

20 demand from the algae respirating at night that you referred to

21 in response to Dr. Flemal's question?

MR. MOSHER: It could very well be.

MR. HARSCH: Okay. Thank you.

MR. CALLAHAN: My name is Mike Callahan. I would like to

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1 ask a question in the same vein to Mr. Mosher. Both you and

2 Albert, Bob, described this situation as a green slime pool.

3 What was the nature of that green slime?

MR. MOSHER: Well, the slime I saw was white.

MR. CALLAHAN: White. Okay. It wasn't green.

MR. ETTINGER: I didn't say green.

MR. CALLAHAN: In such a situation generally if we are

8 looking at diurnal oxygen sags, is this not caused by cellular

9 respiration of the algae there?

MR. MOSHER: Yes, it is true that it is a very natural

11 function of aquatic ecosystems that the algae present often very

12 naturally in that ecosystem will respire 24 hours, but only

13 provide oxygen through photosynthesis for the daylight hours. So

14 you get this natural sag in DO.

MR. CALLAHAN: So this would be, then, early in the morning

16 when the low DO concentration is realized?

MR. MOSHER: You would expect them between -- you know,

18 after midnight and through maybe even mid morning.

MR. CALLAHAN: Now, is it necessarily ammonia that

20 contributes to this? Or could nitrate, as well, contribute to

21 this, with nitrogen being a nutrient which is supplied in excess?

MR. MOSHER: Well, now we are talking about what makes algae

23 grow, the fertilizer, so to speak. And nitrates are equally

24 efficient as a fertilizer for plants, as is ammonia.

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MR. CALLAHAN: So if the problem was a result of diurnal

2 respiration rates, the contribution of nitrogen could essentially

3 be irrelevant as to whether it was chemically reduced or

4 chemically oxidized?

MR. MOSHER: That's true.

MR. CALLAHAN: Okay.

HEARING OFFICER TIPSORD: Okay. Anything further? I think

8 we are ready to proceed with Question Number 8.

MR. ETTINGER: I want to apologize for taking us on this

10 extended trip to Moline today, although that was used just as an

11 example.

Let us now ask Question 8, which is what is the basis for

13 the choice of using the ten to the fifth power risk factor for

14 the proposed benzene human health standard?

MR. MOSHER: The Agency used the ten to the minus fifth

16 power risk factor because the recent GLI process sanctioned this

17 method as the most appropriate.

HEARING OFFICER TIPSORD: Okay. Mr. Rao has a follow-up.

MR. RAO: I have a follow-up to that question. So is this

20 the USEPA's current policy to have risk levels, you know, to be

21 protective of human health to be set at tenth to the minus five

22 for water quality standards?

MR. OLSON: Over the years the USEPA has made a number of

24 different risk decisions based on anywhere -- even at higher

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1 levels than that. But the recommended levels are ten to the

2 minus fifth, to ten to the minus seventh, as far as I remember.

MR. RAO: Are the water quality standards under Part 302,

4 you know, the human health standards that have been adopted by

5 the Board, do you know if all those numbers were based on a risk

6 level of ten to the minus fifth, or ten to the minus sixth or

7 lower?

MR. OLSON: Okay. Let me get this straight. We have the

9 Lake Michigan standards. Those were -- if those were carcinogens

10 those were all based on ten to the minus fifth. Those were in

11 the recent past.

We have only a Mercury standard under the General Use,

13 which is called a human health standard, and that is not based on

14 cancer, as far as I know.

And under the public water supply section, those are very

16 old standards, and I have no idea. Those were not based on risk

17 policy.

MR. RAO: Okay.

MR. OLSON: I mean, this modern 1980s, 1990s risk policy.

MR. RAO: Okay. Thank you.

MR. ETTINGER: Just a follow-up on Mr. Rao's question. You

22 indicated that the risk factors used were recommending ten to the

23 minus fifth or ten to the minus seventh. I think Bob indicated

24 ten to the minus fifth was the one chosen in this case because

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1 that was the GLI recommendation. Did the GLI recommend only ten

2 to the minus fifth, or did they give this range that you were

3 talking about?

MR. OLSON: The standards that we adopted, which were

5 generally acceded to by the other states and the GLI process were

6 all ten to the minus fifth if it was a carcinogen.

MR. ETTINGER: Okay. In some cases under the GLI did they

8 adopt ten to the minus seventh?

MR. OLSON: No, not as far as I know.

HEARING OFFICER TIPSORD: Okay. Is there anything further?

11 Go ahead.

MR. RAO: I have one more follow-up. Under the GLI

13 standards for open waters of Lake Michigan, I think the benzene

14 standard is set at 12 micrograms per liter. Do you know on what

15 basis that standard was established?

MR. OLSON: That is for drinking water as well as for fish

17 consumption. The General Use standard that we are proposing is

18 only for fish consumption and incidental exposure through just

19 touching the water. But the open waters of Lake Michigan

20 included actually drinking two liters of water a day and the

21 algorithm for calculating that number.

MR. RAO: Okay. Thanks.

HEARING OFFICER TIPSORD: Okay. I think we are ready, then,

24 for Question 9.

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MR. ETTINGER: For standards development, could Tier I

2 methods have been used if the Agency had included data regarding

3 North American species not living in the Midwest?

MR. MOSHER: Ethyl benzene is the only proposed standard

5 that was derived using a Tier II methodology. Going back to the

6 database of toxicity studies for this substance, and for that you

7 would refer to Exhibit M of the original petition, the missing

8 family of organisms necessary to complete the database and allow

9 a Tier I derivation is the benthic macroinvertebrate. The only

10 benthic macroinvertebrate data available is for Mysidopsis, an

11 estuarine or salt water shrimp-like crustacean. This organism is

12 used extensively for toxicity testing on effluents that are

13 discharged to salt or brackish waters.

We did not use the data for this organism because it is

15 obviously not Midwestern and is not even a freshwater organism.

16 Under Subpart F, the Agency is required to exclude such data. In

17 our recommendations to the Board in this proceeding, we have

18 maintained this consistent approach whenever possible. However,

19 when establishing numeric standards, any valid approach may be

20 used, not just the one encoded in Subpart F. If the Mysidopsis

21 data were used allowing the Tier I calculation, the acute

22 standard would be 0.900 milligrams per liter, and the chronic

23 standard 0.072 milligrams per liter.

Salt water organisms often have tolerances to toxicants

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1 that fall closely in line with freshwater species. This appears

2 to be the case for an array of organisms tested with ethyl

3 benzene. Having standards for BETX substances that are all

4 derived using the same methodology makes sense. Using the salt

5 water organism puts the ethyl benzene standard more in line with

6 the other BETX. This would be predicted from structure/activity

7 relationships as well. There is probably nothing wrong with

8 using Mysidopsis data in this instance. The Agency is willing to

9 suggest that the Board adopt the revised ethyl benzene values

10 given above as the General Use water quality standards.

HEARING OFFICER TIPSORD: Is there any follow-up? Okay. We

12 will proceed with Question 10.

MR. ETTINGER: Ten. What, if anything, does the federal

14 guidance say about where one should measure the -- I am sorry.

15 What, if anything, does the federal guidance say about where one

16 should measure a site-specific total dissolved metal ratio, in

17 the effluent or in the receiving stream?

MR. MOSHER: The preferred sampling location for determining

19 the site-specific metals translator, according to the federal

20 guidance, is at the downstream edge of the mixing zone. The

21 methodology also allows for testing in the effluent itself, and

22 according to Region 5 USEPA staff, if no mixing zone exists, such

23 as in a zero 7Q10 flow stream, measurements should be made in

24 both the effluent and in the receiving stream downstream of the

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1 effluent and the more conservative, that is, the lower of the

2 two, metals translator values obtained should be used.

MR. ETTINGER: Are the implementation rules, that we are not

4 going to see in this proceeding, going to address that question?

MR. MOSHER: Yes, there will be a section dealing with the

6 metals translator. We intend to rely very heavily on the federal

7 guidance. We would just put that in as a -- what do we call it?

MR. SOFAT: Incorporation by reference.

MR. MOSHER: Incorporation by reference. We would also

10 intend to have some instructions on a very basic level noting

11 that the number of samples that should be taken, the location

12 that is preferred given, whether there is a mixing zone, or

13 whether there is not a mixing zone, just real basic things like

14 that.

MR. ETTINGER: These rules -- will these rules specify where

16 to measure to get your dissolved total ratio?

MR. MOSHER: Yes.

MR. ETTINGER: Okay.

HEARING OFFICER TIPSORD: Seeing no other follow-up, please

20 continue.

MR. ETTINGER: Okay. This is Question 11. Exhibit H

22 describes the different methods used to derive standards, paren,

23 Tiers I through III, close paren. Under the current method of

24 publishing the BETX standard in the Illinois Register, you use

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1 Subpart F methods to derive General Use standards. For your

2 proposed standards in this proceeding, you choose to use Subpart

3 E methods. Exhibit H states, quote, Subpart E uses a more

4 refined approach that applies a more stringent safety factor when

5 fewer families are represented, end quote.

Why, then, are some of the currently published water

7 quality criteria for BETX, paren, page two of Exhibit F, close

8 paren, more stringent than the proposed standards?

MR. OLSON: I will take that. Some of the newly derived

10 proposed water quality standards using Subpart E methodology are

11 less stringent than some of the previously published derived

12 water quality criteria calculated using Subpart F methodology for

13 the following reasons:

A, Subpart F has been in use for over ten years and during

15 that time there was a learning process during which mistakes were

16 made in arithmetic and computer programs designed to aid in the

17 calculations.

B, opinion changed over the years as to what data were

19 appropriate to use. This is a subjective and ongoing process.

C, newer data appear in the literature and are incorporated

21 into the calculations.

Whether criteria become more or less stringent over time is

23 not a consideration of the derivation process. Obtaining all

24 pertinent data, determining the suitability of that data and

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1 correctly applying the data to the methodology are the

2 considerations that are important to this process.

MS. SKRUKRUD: I have a follow-up question.

HEARING OFFICER TIPSORD: Okay.

MS. SKRUKRUD: I am Cindy Skrukrud. The last name is

6 spelled S-K-R-U-K-R-U-D. I am with the Sierra Club.

HEARING OFFICER TIPSORD: Thank you.

MS. SKRUKRUD: I guess that was my question, and I am trying

9 to understand what the comment that there is a more stringent

10 safety factor in Subpart -- using Subpart E than using Subpart F.

11 What is meant by that?

MR. OLSON: Could I ask you in reference to which parameter,

13 as to which substance?

MS. SKRUKRUD: Well, this was -- this was not regarding any

15 specific substance. In Exhibit H, where you describe the

16 different Tier methods, it is stated that Subpart E uses a more

17 refined approach and applies a more stringent safety factor when

18 fewer families are represented. So maybe it is specifically --

19 it was for one Tier.

MR. OLSON: Well, that really only applies to ethyl benzene,

21 I think, because that was so-called Tier II, and that's where

22 these explicit safety factors are mentioned. It turns out that

23 it is actually more stringent for Subpart E, rather than the old

24 method of Subpart F. It is more fair in that it uses more of the

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1 data, but it may actually produce a greater safety factor.

MS. SKRUKRUD: Okay.

HEARING OFFICER TIPSORD: Just one second.

MR. RAO: I have a related question. I think this one is

5 for Dr. Olson. On page seven of the prefiled testimony you

6 recommended that the Board adopt standards based on Subpart E

7 procedures since they include more up-to-date thinking on

8 criteria derivation. In light of this, can you please comment on

9 whether Subpart F procedures need to be updated to reflect the

10 current signs and criteria derivation?

MR. OLSON: Excuse me. Your question is that --

MR. RAO: Whether the Subpart --

MR. OLSON: Do I think Subpart F should be updated?

MR. RAO: Yes. Are they outdated?

MR. OLSON: Well, you are putting me on the spot, I think.

16 We have not discussed that specifically, but I guess it would

17 probably be a good idea. But we have not proposed that at this

18 time.

MS. SKRUKRUD: I think I could maybe clarify my trying to

20 understand the differences between Subpart F and Subpart E. In

21 Exhibit F, on page one of Exhibit F, you list the proposed

22 standards. And then on page two you have a table that lists the

23 currently published water quality criteria. And if you look

24 under the chronic standard for xylene, what you are proposing,

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1 which was developed with Subpart E, is proposing the standard of

2 0.36, but the published chronic standard is 0.073, which was

3 developed using Subpart F. So that is a more stringent standard

4 that was developed under Subpart F.

MR. OLSON: Right. I will just reiterate the three reasons

6 that I gave in the -- as I read off this prepared answer. I

7 would only be able to answer that in detail if we actually had

8 the documents in front of us and side by side to do that.

This arrangement is not too good, with the questioner

10 directly behind me.

HEARING OFFICER TIPSORD: We will let you know if we can't

12 hear you.

MR. OLSON: Okay. You are the people making the decisions,

14 but they are the ones asking the questions.

MR. MOSHER: We could probably sit down over lunch and put

16 them side by side and --

MR. OLSON: I am not sure I have those older documents with

18 me.

MR. MOSHER: They are not in here?

MR. OLSON: Well, I have the current criteria document.

21 That might help her to understand it, if we went through in

22 detail.

MS. SKRUKRUD: Okay.

MR. ETTINGER: I think we will discuss later what further

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1 proceedings they will be in. Perhaps there will be the

2 opportunity for more prefiled questions to allow you to look at

3 your documents. I think we will discuss that later.

BOARD MEMBER GIRARD: I have a related question. Mr. Olson,

5 in this whole issue of risk factors, how do you decide whether to

6 use a risk factor of ten to the fifth, or ten to the sixth, or

7 ten to the seventh when deriving a standard?

MR. OLSON: Well, in the proceedings over ten years ago in

9 88 and 21, which was the toxic regulations that led to Subpart F,

10 it was really a consensus that, well, we will go with ten to the

11 minus sixth. That was through many of -- through the USEPA and

12 the various other states.

By the time that the GLI process came in the middle 1990s

14 for the Lake Michigan, for the Great Lakes system, it was just a

15 policy decision really and sort of at that level, generally, and

16 the Board acceded to it at that time.

It is really hard to deal with orders of magnitude like

18 this, and I am sure the average person, you know, thinks it is --

19 you know, finds it very difficult to deal with this, the way of

20 looking at things. All I can say is it was really a policy sort

21 of decision, and there aren't any -- the details of how that was

22 arrived at, I can't tell you.

BOARD MEMBER GIRARD: Are you saying it was a policy

24 decision of the Illinois EPA based on federal guidance, or was it

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1 federal policy?

MR. OLSON: I think it was a policy decision that was the

3 general consensus among all of the parties involved at each of

4 those stages, and it just changed over a few years time. The GLI

5 process involved the states meeting with the USEPA for many, many

6 meetings over a number of years. And this was just a gradual

7 consensus that was arrived at. I don't know whether the EPA led

8 that process. And I don't know whether they have any notes or

9 any records to show.

As I said to Dr. Rao, the USEPA, there was a paper in

11 Environmental Science and Technology at the time we did the 88

12 and 21, and it showed on a graph a number of the risk levels used

13 for a variety of decisions, and it was all over the map. You

14 know, it was ten to the minus three to ten to the minus eighth or

15 something like that.

BOARD MEMBER GIRARD: Okay. Thank you.

HEARING OFFICER TIPSORD: Anything further? Okay. Question

18 Number 12, Mr. Ettinger.

MR. ETTINGER: I will read all of Question Number 12 at

20 once, although it is a three-part question.

Regarding the proposed loosening of the cyanide standard;.

A, why were six data sets rejected in Step 20 of the

23 derivation?

B, how does the absence of a different insect order affect

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1 Step 22?

C, were any mussel data reviewed in considering the

3 proposed standard?

MR. OLSON: Regarding the weak acid dissociable cyanide

5 proposed standards:

A, Step 20 is not a list of rejected data, but rather a

7 list of acceptable data after rejected data are removed. In this

8 case, no unacceptable data were removed. If you need an

9 explanation of that again, it is a matter of looking at the

10 document. There is a little bit of lack of clarity in the way

11 that is stated in the document.

B, Step 21 shows that studies for the five required types

13 of organisms for Subpart F are present. Step 22 shows the

14 additional three studies for organisms required for a Subpart E

15 Tier I derivation are not present, the different invertebrate,

16 insect, is missing. A Subpart F Tier I derivation may be

17 conducted but at Subpart -- a Subpart E Tier I derivation may

18 not.

C, to the best of our knowledge, we know of no mussel data

20 for cyanide.

That second part got a little mixed up. But the fact is

22 there is not any insect data, so it would not -- we don't know

23 how it would affect.

MR. ETTINGER: I am sorry. You just said insect. Do you

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1 mean there is no mussel data?

MR. OLSON: No, I was going back to the cyanide question. I

3 am sorry.

MR. ETTINGER: Okay. Let me just clarify your last answer.

MR. OLSON: Yes.

MR. ETTINGER: Are you aware of mussel data?

MR. OLSON: No, there is no mussel data, as far as we know.

MR. ETTINGER: And you don't know how cyanide affects

9 mussels?

MR. OLSON: No.

MR. ETTINGER: Are you aware that there are endangered

12 mussels species in Illinois waters?

MR. OLSON: Oh, yes, of course.

MR. ETTINGER: Have you consulted with US Fish and Wildlife

15 regarding this proposal's potential affect of cyanide on

16 endangered species?

MR. MOSHER: That is a USEPA obligation and not ours.

MR. ETTINGER: Have you consulted with the USEPA regarding

19 the potential affect of cyanide on mussels?

MR. MOSHER: Not specifically, no.

MR. ETTINGER: Have you consulted with the IDNR regarding

22 the potential affect of increased cyanide discharges on

23 endangered Illinois mussels?

MR. MOSHER: No.

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MR. ETTINGER: Are you aware of studies showing an additive

2 or more than additive affect of free cyanide when it is present

3 in the water in combination with ammonia?

MR. MOSHER: No.

MR. ETTINGER: Is cyanide more toxic to fish in conditions

6 of low dissolved oxygen?

MR. OLSON: It should be, yes.

MR. ETTINGER: Are there any dischargers other than the

9 MWRD, the Metropolitan Water Reclamation District of Greater

10 Chicago, that we know may be affected by the change in the

11 cyanide standard?

MR. MOSHER: I don't believe the MWRD is affected, because

13 they already have a site-specific cyanide standard similar to the

14 one we are proposing. There are very few dischargers regulated

15 for cyanide. I don't know of any that this really is meaningful

16 for their compliance or noncompliance.

MR. ETTINGER: Thank you.

HEARING OFFICER TIPSORD: Go ahead.

MR. POLLS: I have a follow-up. I am Irwin Polls, the last

20 name is P-O-L-L-S. I am the Manager of Aquatic Ecology and Water

21 Quality for the Metropolitan Water Reclamation District of

22 Greater Chicago.

This question is for Bob, a follow-up on Question Number 9.

24 Did I understand that you are going to recommend that a marine

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1 species be used in the calculation of ethyl benzene?

MR. MOSHER: We are saying that in this particular case

3 there seems to be no difference in the response of fresh water

4 organisms versus salt water organisms to ethyl benzene. I

5 wouldn't want to say that for anything but ethyl benzene at this

6 point, because we have not looked into it any further, since it

7 has always been our practice to use only fresh water Midwestern

8 organisms in these derivations.

MR. POLLS: Let me ask you this. I believe in your

10 testimony you stated that you did include a marine species in the

11 calculation?

MR. MOSHER: We recalculated.

MR. POLLS: Now, when you recalculated using the marine

14 species, was the proposed standard higher or lower than the one

15 that you have previously recommended?

MR. MOSHER: The recalculated standard is much less

17 stringent than our original proposal.

MR. POLLS: So the number would be higher?

MR. MOSHER: Yes.

MR. OLSON: Could I follow that up? As a matter of fact, if

21 you -- it is much broader than for ethyl benzene. If you look at

22 many, many chemicals and you look at the list of species, the

23 list of sensitivity, you will find that there is very little

24 difference between a list of salt water organisms and a list of

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1 fresh water organisms.

There are a number of publications. I have at least six

3 references. If you look at our data since you will see the same

4 thing whenever you take these other organisms for all of the BETX

5 substances. So it is not really that outlandish. It is just

6 that it is not something that we are accustomed to.

HEARING OFFICER TIPSORD: Did you have something? Albert,

8 did you have another follow-up?

MR. ETTINGER: I just have one follow-up on the sensitivity.

HEARING OFFICER TIPSORD: Okay.

MR. MOSHER: Go ahead.

MR. ETTINGER: Have you looked at -- regarding sensitivity

13 of species, have you looked at whether mussels are generally more

14 or less sensitive than warm water fish?

MR. OLSON: I went ahead and used the data that the USEPA

16 supplied us. All we have are numbers on a sheet of paper. We

17 don't have a publication to go with it. We have no idea what

18 those numbers actually stand for. They may, you know -- there

19 may be something completely different about the way those numbers

20 were presented to us.

But using the numbers as they gave them to us, for nickel

22 and zinc it made virtually no difference in the calculation of

23 the standard on the criterion. So the sensitivity was low, but

24 we always had data that was just as low or even lower.

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MR. MOSHER: For other species?

MR. OLSON: Yes. Ceriodaphnia, for instance, was just as

3 low or lower.

HEARING OFFICER TIPSORD: Mr. Callahan?

MR. CALLAHAN: Yes, I would like to follow-up on that. You

6 indicated that these were numbers that were given to you by the

7 USEPA?

MR. OLSON: Yes, the USEPA --

MR. CALLAHAN: You have no idea of the source of these

10 numbers?

MR. OLSON: The USEPA has done some studies. Bob has done

12 some inquiring about that. This has not really been peer

13 reviewed and in the literature yet.

MR. CALLAHAN: It has not been published?

MR. OLSON: But some of it has been let out and people know

16 about it, and we heard about some of that in a meeting in Chicago

17 a couple of weeks ago. But we really don't know, you know, how

18 well this was done. And the numbers, as I say, that I got were

19 just on a mimeograph piece of paper, essentially.

MR. CALLAHAN: Is it customary for the Agency to advocate a

21 proceeding before this Board that would have in its basis data

22 that has not customarily withstood the rigors of peer review?

MR. OLSON: No, I am not suggesting that we use that data.

24 I am only saying that I did it as a trial and it didn't make any

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1 difference, essentially.

MR. CALLAHAN: All right.

MR. MOSHER: I think we need to clarify this issue a little

4 bit more. As Clark mentioned, there is some newer mussel studies

5 out there. A lot of it is unpublished. All of the newer

6 studies, and by that I mean done within the last three or four

7 years, are not yet sanctioned by the USEPA. And by that I mean

8 they have not put those studies into their acquired database of

9 aquatic life toxicity test results.

There is one older mussel study done in 1991 published in a

11 journal that the USEPA did put into the acquired database, and

12 that study contains information for zinc and nickel, and that

13 study is a part of the data set that we use to derive our

14 proposed zinc and nickel water quality standards.

It may come out in the future that nobody likes any kind of

16 mussel study and we have to do things over again without any

17 mussel data. It may turn out that the mussel studies pass the

18 rigor of peer review and debate, and then all of the states are

19 going to have to use all of that data, and we will probably be

20 back here reproposing standards for a lot of things using mussel

21 data. So just to make the record clear, some mussel data went

22 into zinc and nickel that we are proposing now, but only one

23 published study.

MR. ETTINGER: Let me just -- some of the studies that we

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1 were talking about regarding mussels with regard to the recent

2 unpublished studies, were those with regard to ammonia or some

3 other --

MR. OLSON: No, the only thing I looked at was zinc and

5 nickel, but they also did a number of other metals. I have no

6 way of knowing comparatively speaking. But the 1991 paper that

7 he referred to does compare on a very small basis their data with

8 other organisms that have been tested on about five or six

9 metals. In each case the mussel data was about the most

10 sensitive, but it was not that much more sensitive. In some

11 cases it was less sensitive than some of the other organisms that

12 they compared it to.

MR. MOSHER: I had a -- if everyone else is finished with

14 follow-ups, there was a good opportunity for me to elaborate a

15 little on Question 12, the last question we dealt with on

16 cyanide. You will note that our Errata submittal has corrected

17 or updated the chronic water quality standard for weak acid

18 dissociable cyanide. We now are saying that number should be 11

19 micrograms per liter.

The reason for that is that in preparing our response to

21 Question 12 on cyanide, we went back and looked at our data and

22 what we discovered was that, as we answered in Question 11, there

23 apparently had been a mistake made at some point, possibly an

24 arithmetic mistake or possibly just entering numbers into the

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1 computer program incorrectly. But in any case, we went back and

2 looked at the cyanide data for the chronic standard and

3 discovered that the correct calculation should have -- it did

4 result in a standard of 11 micrograms per liter.

Now, the difference between that and what we proposed is

6 very small, and Clark maybe wants to expound on the significance

7 of that, but that's what we got. Since we were doing this, we

8 discovered that. We then went and rechecked all of the other

9 proposed standards -- I should say Clark did -- and found that

10 there were two other -- was it two other changes that we want to

11 make?

MR. OLSON: Zinc, chronic and acute.

MR. MOSHER: Okay. We have done that in the Errata Sheet

14 also. So I guess we can thank the participants for these

15 questions, because it made us go back and look at things again,

16 and we did discover some errors.

MR. ETTINGER: Just following up on that, is it your

18 intention to now submit an exhibit in which you show the

19 recalculations?

MR. MOSHER: Well, given that we have not added any new

21 data --

MR. OLSON: Actually, I was just -- you know, using the data

23 sets here, I don't know what it was. It was only a one and a two

24 percent error for the zinc. So what it was, I don't know. But

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1 it was just off a little bit. Now, for the cyanide it was off

2 more.

MR. MOSHER: One more thing about cyanide, we don't know of

4 any data for mussels for cyanide at all, whether debated data or

5 not. But the way this process works and one of the reasons we

6 are all here today -- and I note that the Illinois Department of

7 Natural Resources has some representatives here today. If they

8 know of any toxicity tests data on mussels, we would like to

9 know. You know, maybe they do, and we can certainly evaluate

10 that and put it into the mix.

The USEPA would like to know about it. They can start

12 considering cyanide toxicity test data for mussels as well as

13 they are now considering data for ammonia and metals. So if the

14 data is out there, we need to know about it.

MR. ETTINGER: Now, you did get this new standard by

16 throwing the cold water fish data out of the mix; is that

17 correct?

MR. MOSHER: That's correct.

HEARING OFFICER TIPSORD: Mr. Polls, did you have a

20 follow-up?

MR. POLLS: I have a follow-up regarding the availability of

22 data for cyanide on mussels. It is my understanding that for the

23 USEPA and their criteria, the national criteria document, for

24 data to be included in that database it must be intensely peer

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1 reviewed and cannot be data that just anyone has used that has

2 not gone through a peer review process. I think in the appendix

3 or in the introduction it clearly says that only data that has

4 been outside reviewed can be used.

So to ask just that any data be used, we would have an

6 objection in terms of just any data. I think we would go along

7 with the USEPA, that it would have to be reviewed and be included

8 in the database, so that it can't be --

MR. MOSHER: Yes, that's correct. Yes, you are right.

HEARING OFFICER TIPSORD: Mr. Rao?

MR. RAO: Yes, I have a follow-up regarding the submission

12 of recalculations that you have made. Now, in your earlier

13 response you recommended that the Board adopt for the ethyl

14 benzene, the recalculated standards. Would it be possible for

15 you to submit the recalculations that you made using marine

16 species for ethyl benzene, or is it --

MR. MOSHER: Well, it is easier than that.

MR. RAO: Okay.

MR. MOSHER: I would like to refer to one of our original

20 exhibits on ethyl benzene.

MR. RAO: Is that part of Exhibit M?

MR. MOSHER: Well, probably. Let's take a look. Yes.

23 Exhibit M. And as we page through that, to the chronic data --

MR. OLSON: Excuse me. What are you doing?

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MR. MOSHER: Well, Clark, help me out here. We are wanting

2 to show people where the Mysidopsis data is for ethyl benzene.

MR. OLSON: Oh, okay. If you will look in the data set in

4 the ethyl benzene document. Is that M? I don't have the --

MR. MOSHER: Yes.

MR. OLSON: Okay. It is listed under Step 9, acute

7 toxicity.

MR. MOSHER: Is there a way to work through what we already

9 have here to show how we developed --

MR. OLSON: Well, if he finds it, I could help him go

11 through the process.

MR. MOSHER: Okay.

HEARING OFFICER TIPSORD: Can you --

MR. RAO: Do you know a page number?

HEARING OFFICER TIPSORD: -- give us a page number?

MR. OLSON: No, I don't have a page number. It is Step 9.

17 It comes after the bibliography. It's acute toxicity.

BOARD MEMBER GIRARD: Page five?

MR. MOSHER: There are page numbers here.

MR. OLSON: Oh, okay. It is page number six.

BOARD MEMBER GIRARD: Okay. Page number six. It starts on

22 page five.

MR. OLSON: In this big book here.

MR. RAO: Okay.

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MR. OLSON: Do you find my synopsis in the middle of page --

2 oh, it is page five.

MR. RAO: Yes.

MR. OLSON: Okay. Under the SMAV it says 15.09. Well, if

5 you go to Step Number 11, you will see that 15.09 would be about

6 in the middle of that series of data, one through six.

MR. RAO: Yes.

MR. OLSON: Well, we just put this into our computer

9 calculation, and that would not -- that would only -- it would --

10 it would contribute to the value.

MR. RAO: Okay.

MR. OLSON: That's all we did.

MR. MOSHER: We can put together a sheet that runs through

14 the calculation and shows how we arrived at that value.

MR. RAO: Okay.

MR. MOSHER: That would not be -- we will send you that.

MR. RAO: Okay.

HEARING OFFICER TIPSORD: Are there any other questions?

19 Yes, Mr. Polls.

MR. POLLS: Yes, I have a clarification again, another

21 question for Mr. Mosher.

HEARING OFFICER TIPSORD: I am sorry. Could you speak up?

23 I couldn't hear everything.

MR. POLLS: This is for Bob Mosher. It is just a

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1 clarification. So for weak acid dissociable cyanide, in your

2 original testimony back in January you recommended -- I believe

3 this is Exhibit G, with the hardness value of 250, that the

4 General Use chronic standard for weak acid dissociable cyanide

5 would be .099; is that correct?

MR. MOSHER: Well, cyanide is not dependent on hardness, so

7 that part of it is not applicable.

MR. POLLS: Okay. Correct.

MR. MOSHER: But --

MR. POLLS: But using that table, the value of that you were

11 going to propose is .099?

MR. MOSHER: Yes, that's correct.

MR. POLLS: Now, based on the fact of today's testimony when

14 you recalculated, now the one that you will propose for weak acid

15 dissociable --

MR. MOSHER: I am sorry. Let me correct that. That is a

17 misprint. That should be 0.0099. I apologize. That got through

18 everybody.

MR. POLLS: Okay. Now, currently you are proposing 11

20 micrograms per liter for weak --

MR. MOSHER: Yes.

MR. POLLS: You are changing it from approximately ten now

23 so the number will go up?

MR. MOSHER: Yes. Thank you for pointing that out. That is

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1 a bad typo to have lying there.

HEARING OFFICER TIPSORD: Okay. Then at this time let's go

3 off the record, Darlene.

(Discussion off the record.)

HEARING OFFICER TIPSORD: We will go ahead and take a ten

6 minute break and come back at noon.

(Whereupon a short recess was taken.)

HEARING OFFICER TIPSORD: All right. Let's go ahead and

9 begin.

Are there any questions to the Agency on their testimony as

11 presented today?

MR. ETTINGER: I have one.

HEARING OFFICER TIPSORD: Yes, Mr. Ettinger.

MR. ETTINGER: This is for Mr. Mosher. You talked about how

15 in your testimony regarding cadmium on the third page here it

16 says, eight out of 208 critical hardness values are above 425

17 milligrams per liter. These are generally found in streams that

18 have a past or present history of mining.

Are there any discharges to those eight streams that you

20 are aware of that would be affected by this?

MR. MOSHER: In regards to cadmium?

MR. ETTINGER: Yes.

MR. MOSHER: I don't believe we have cadmium limits in any

24 permit other than those that have a federal categorical

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1 requirement to have such a limit. And the streams, these eight

2 streams that have this really high hardness above 425 are not in

3 industrial areas generally other than the mining industry. So,

4 you know, I would have to go look at each and every one of those

5 to really give you a good solid answer to that question. And

6 that is something that I could do over lunch or something like

7 that if you want.

MR. ETTINGER: I was just wondering what the import of this

9 provision was. I gather you are not currently aware of any

10 import in terms of a discharger having to meet a limit?

MR. MOSHER: I am not aware, no.

HEARING OFFICER TIPSORD: Is there any other questions for

13 the Agency based on their testimony today?

Okay. Great. Seeing none, thank you very much, and we

15 will proceed with our next witness, Mr. Steven Davis.

If the Agency doesn't mind, we need to at least clear one

17 table for the other witnesses.

MR. SOFAT: Okay.

HEARING OFFICER TIPSORD: Ms. Howard, did you want to make

20 an opening statement?

MS. HOWARD: Good afternoon, and thank you very much for

22 letting us appear here today. My name is Margaret Howard, and I

23 am the attorney that represents the Galesburg Sanitary District

24 in this proceeding.

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And Mr. Davis, who is the District Superintendent, would

2 like to present some testimony that we have prefiled earlier.

HEARING OFFICER TIPSORD: All right. We will have you

4 sworn.

(Whereupon Mr. Steven Davis was sworn by the Notary Public.)

MR. DAVIS: I want to thank the Board for allowing me to

7 testify today, in particularly going on ahead and getting started

8 with it.

My name is Steven E. Davis, and I am the District

10 Superintendent of the Galesburg Sanitary District, hereinafter if

11 I refer to it as the District. On behalf of the District I am

12 testifying in support of the following proposed amendments, 35

13 Illinois Administrative Code 301.267, 301.313, 301.413, and

14 309.157. And I urge the Pollution Control Board to adopt these

15 proposed amendments.

These proposed amendments are based upon the June of 1996

17 publication by the United States Environmental Protection Agency,

18 Office of Water, hereinafter referred to as Water, of the metals

19 translator guidance for calculating a total recoverable permit

20 limit from a dissolved criteria. And that's the EPA publication

21 Number 823-B-96-007, of which I will refer to in my testimony as

22 the translator document.

To briefly summarize, the translator document reaffirms an

24 earlier determination by the Office of Water that dissolved metal

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1 concentrations are a better representation of the biologically

2 active portions of metal and should be used for the application

3 of water quality standards as opposed to total metal standards or

4 total recoverable metal standards. The logic for using dissolved

5 metal standards is that the primary mechanism for toxicity to

6 organisms that live in the water column is by absorption to or

7 uptake across the gills, and that this physiological process

8 requires metal to be in a dissolved form.

The translator document provides detailed technical

10 guidance to develop a metals translator, which is the fraction of

11 total recoverable metal in the water stream which is dissolved.

12 The calculation of limits based upon the fraction of dissolved

13 metals to the total recoverable metals is inherently

14 site-specific. The translator document notes that many local

15 factors influence the dissolve of two total metals ratio,

16 including hardness and dissolved organic carbon and flow rates,

17 etcetera.

Given the importance of the translator document, I request

19 that this Board incorporate the translator document into this

20 rulemaking by a specific reference.

The District's effluent limits for copper provide a good

22 example of how the proposed amendments would work. The District

23 has high values for its influent copper due to high levels of

24 copper in the City of Galesburg water system. Consumer

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1 confidence reports published by the City of Galesburg for the

2 years of 1999 and 2000 show copper levels in our water system for

3 both years as high as 1.4 milligrams per liter. The allowable

4 limit for potable water is 1.3 milligrams per liter.

Based upon a 25th percentile of hardness for the District's

6 receiving stream, the chronic water quality standard for total

7 recoverable copper was calculated by the Illinois Environmental

8 Protection Agency to be 0.031 milligrams per liter. The

9 District, being a separate municipal entity from the City of

10 Galesburg, has no authority or control over the operation of the

11 water system, therefore, it has no means of controlling the

12 levels of copper which flows from that source into the wastewater

13 collection system and treatment plant.

Beginning in October of 1999, the District began sampling

15 and testing its plant effluent for copper pursuant to the

16 requirements of its NPDES permit at least twice weekly.

17 Composite samples have been taken of the effluent and sent to PDC

18 Laboratories for analysis for total copper.

On the advice of its environmental consultant, the District

20 also began sampling and testing for dissolved copper both in the

21 effluent and from the receiving stream 300 feet downstream from

22 the plant discharge. Overall the District has taken over 180

23 samples. Total copper in the effluent has averaged 0.030

24 milligrams per liter. In comparison, the dissolved copper in the

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1 effluent has averaged 0.018 milligrams per liter. For downstream

2 samples the total copper has averaged 0.019 milligrams per liter,

3 and dissolved copper has averaged 0.013 milligrams per liter.

These results clearly indicate that dissolved copper in the

5 District's effluent is only about half the total copper, and that

6 neither total copper or dissolved copper in the receiving stream

7 is anywhere close to the water quality level, 0.031 milligrams

8 per liter.

In short, both the District and the IEPA have agreed that

10 this is a perfect situation for applications of the USEPA metals

11 translator doctrine. It is worth noting that the methodology

12 that is set forth in the translator document is rigorous but with

13 straightforward and practical application. This is important

14 since it is anticipated that the IEPA rules for implementing the

15 rules, the translator rule, will mirror the methodology in the

16 translator document.

In summary, the District urges the Board to adopt the

18 amendments to 35 Illinois Administrative Codes 301.267, 301.313,

19 and 301.413, and 309.157, as proposed, and to incorporate by

20 reference the USEPA's translator document. It will enable the

21 IEPA to implement discharge limits which better protect stream

22 and aquatic quality based upon levels of dissolved metals and

23 characteristics of the individual streams. By giving the IEPA

24 the same authority that many other states already have, many

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1 costly and extended actions for adjusted standards before this

2 Board can be avoided.

That would conclude the written portion and the read

4 portion of my testimony. I would note for the Board that I had

5 originally, in my testimony, attached these two consumer

6 confidence reports as exhibits, but they did not lend themselves

7 to attachment, particularly by electronic transmission, very

8 easily. I have the hard copies here, should you want them.

I also have a clean copy of the metals translator document

10 from the EPA, should you desire to have that. I am not sure if

11 that has been attached by the Agency or not.

HEARING OFFICER TIPSORD: The translator document is already

13 a part of the rulemaking record. The Agency attached it to its

14 original proposal. So my question to you, is that sufficient to

15 answer your request to incorporate it?

MR. DAVIS: I think so.

HEARING OFFICER TIPSORD: Okay. I would like to have those

18 if we could. We could enter the consumer confidence as exhibits.

MR. DAVIS: Sure.

MS. HOWARD: I will give you two copies of them.

HEARING OFFICER TIPSORD: Okay. Thank you.

MR. DAVIS: I would note for the record --

HEARING OFFICER TIPSORD: These are both the same thing?

MS. HOWARD: Right, the same thing.

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MR. DAVIS: -- that the District receives those water

2 confidence reports as a consumer, just like all the other

3 residents and users in the City of Galesburg. So that's how I

4 have come to acquire those documents.

HEARING OFFICER TIPSORD: Okay. We will enter as Exhibit

6 Number 11 the City of Galesburg Water Division Consumer

7 Confidence Report, if there is no objection.

Okay. Seeing none, we will admit that.

(Whereupon said documents were duly marked for purposes of

identification as Hearing Exhibit 11 and entered into

evidence as of this date.)

MR. DAVIS: Madam Hearing Officer, may I make one point?

13 With regard to the translator document, and to answer your prior

14 question as far as its prior attachment by the Agency, I guess I

15 would want to reinforce, as I stated in my testimony, that I

16 think this is almost a good cookbook, if you will, for how the --

17 at least the translator portion of the metals could work, because

18 it has worked very well in our specific instance.

I guess I would urge its incorporation by reference as far

20 as the actual implementation of the rules is concerned.

HEARING OFFICER TIPSORD: Okay. Thank you. Are there any

22 other questions? Just give us a second, please.

(Hearing Officer Tipsord and Mr. Rao confer briefly.)

HEARING OFFICER TIPSORD: Actually, Mr. Rao, in an aside,

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1 just made a good point. Again, when you talk about incorporation

2 by reference, that has a very sort of term-of-art meaning in a

3 rule. Do you specifically believe that in the Board's Rules the

4 Board should say we incorporate by reference this document, even

5 though the Board's Rules don't deal with implementation?

If so, could we have some perhaps proposed language or

7 where you think that amendment might fit best at a later time

8 before the comment period ends?

MR. DAVIS: Well, from our perspective, and I think that I

10 share this with Mr. Ettinger, I think that one of the questions,

11 you know, that concerns us is the devil is in the detail, and how

12 do you implement this translator authority. In our -- I guess

13 the crux of my testimony is that this worked very well in our

14 specific instance. So I guess that we would urge, if this is not

15 the specific way in which the translator is implemented, that the

16 implementation rules by the Agency mirror them very closely,

17 because I guess that's the thrust of it.

Now, as I understand it, from hearing Mr. Mosher testify,

19 that that is, indeed, a separate -- or the IEPA attorney, that is

20 a separate -- their rulemaking, in terms of their implementation,

21 is separate from the Board. So, indeed, in that case it may not

22 be properly something that is incorporated by the Board as such.

23 But I guess I am urging that it be something along these lines,

24 at least as far as the implementation rules.

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MS. HOWARD: I would like to just reserve the opportunity

2 that if Mr. Davis and I talk over the next week or two about this

3 a little bit more that maybe we might have some proposed language

4 that we could incorporate by reference specifically in the

5 rulemaking, that we could reserve that opportunity.

HEARING OFFICER TIPSORD: Yes.

MS. HOWARD: Thank you.

HEARING OFFICER TIPSORD: Okay. Are there any other

9 questions?

MR. MOSHER: I would like to make a comment to Mr. Davis'

11 testimony. He mentioned the fact that this metals translator

12 procedure has worked very well for the Galesburg Sanitary

13 District. I have seen the data, and it does demonstrate that the

14 District puts in a lesser amount of dissolved copper than it does

15 total copper.

I want to make the point that until the Board adopts these

17 rules, the Agency can't modify the permit for the Galesburg

18 Sanitary District to give them, in a sense, this relief. The

19 only way they can get it at present is to go before you in an

20 adjusted standard, which, of course, is a long process and one

21 that, upon adoption of these rules, will be unnecessary.

And I also wanted to point out that there are several other

23 dischargers in the state right now, all of them community sewage

24 treatment plants, that have the same problem with copper. And

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1 all of them are in various stages of permit noncompliance, I

2 guess I could say, as they are awaiting for the Board to adopt

3 this.

One of those communities, DeKalb, has filed for an adjusted

5 standard for copper based on -- their argument is based on the

6 metals translator process. So I guess this is just a pitch that

7 these rules are necessary to provide relief and make things work

8 for several communities.

MS. HOWARD: Just to add, this is something that we had

10 discussed before, was if -- I know in the last triennial review,

11 about eight years ago, there was a portion of that rulemaking

12 that didn't seem to cause as much controversy as the ammonia

13 portion, and the Board took the initiative to split that docket

14 into two so that the portion that was not as controversial could

15 continue on through the rulemaking process.

If that is something that -- the Galesburg Sanitary

17 District would urge the Board to maybe consider that in this case

18 on their behalf, as well as the other dischargers that Mr. Mosher

19 has mentioned. I don't know if that is something that we should

20 do specifically by a written motion prior to the next hearing or

21 if our verbal motion right here would constitute that request, if

22 that can be taken up. Whichever way you would like to do it from

23 a procedure perspective is fine with us.

HEARING OFFICER TIPSORD: Procedurally, if you are asking us

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1 to split the docket, I think we need to have it in a written

2 motion, with your arguments as to why that would be appropriate.

MS. HOWARD: Okay. Thank you.

HEARING OFFICER TIPSORD: Okay. Anything further? Thank

5 you very much, Mr. Davis.

MR. DAVIS: Thank you very much.

MS. HOWARD: Thank you.

HEARING OFFICER TIPSORD: We will proceed with Cynthia

9 Skrukrud. Could we have her sworn in.

(Whereupon Ms. Cynthia Skrukrud was sworn by the Notary

Public.)

MS. SKRUKRUD: My name is Cindy Skrukrud. I work part-time

13 for the Sierra Club on water quality matters. I have a B.S.

14 degree in Bio-Agricultural Science from Colorado State University

15 and a Ph.D. in Comparative Biochemistry from the University of

16 California at Berkeley. In my work for the Sierra Club and as

17 President of the Friends of the Fox River, I have been following

18 recent studies on the condition of the Fox River and have

19 reviewed some recent work on the appropriate water quality

20 standards for protection of aquatic life.

It is my testimony that the Board should not adopt several

22 portions of the Illinois Environmental Protection Agency's

23 proposal.

First, the scientific evidence is not adequate to justify

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1 the proposed statewide loosening of cyanide standards.

Second, while basing the standard for metals on the

3 dissolved portion of the total metal concentration is acceptable,

4 we are not convinced that the rule will be applied properly.

5 Indeed, the Board should wait to decide on all of the proposed

6 standard changes until the Agency explains how it is going to

7 apply the standards.

Finally, the proposed change to allow CBOD5 to be used in

9 permits instead of BOD5 is not well thought out and not

10 protective. The fact that the Agency took the law in its own

11 hands 15 years ago by writing permits that violated the effluent

12 rules established by the Board is not in itself a reason to

13 approve the proposed changes in the Board rules.

Cyanide standards should be protective of mussels and other

15 sensitive species. The Board should not weaken the cyanide

16 standards without proof that native mussels would not require

17 stronger standards. The testimony at the January 29, 2002

18 hearing indicates that no information on freshwater mussel

19 sensitivity to cyanide was used by IEPA staff as part of their

20 derivation of the proposed new cyanide standards.

At the Midwest Surface Water Monitoring and Standards

22 Meeting held the first week of February of this year, USEPA

23 Region V staff reported on a review underway of new studies which

24 show that mussels are more sensitive than other aquatic life

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1 forms to many pollutants, including ammonia, nickel, zinc, copper

2 and cadmium. The Board should ask the IEPA to use any available

3 information on mussel sensitivity to cyanide to evaluate the

4 impact of the proposed standards on this sensitive -- on these

5 sensitive species.

In addition, the impact of the proposed standard on cool

7 water native fish of Illinois, such as sculpins, should be

8 evaluated. For example, the mottled sculpin is found in

9 tributaries to the Fox River.

Zinc and nickel standards should protect mussels. The

11 standards proposed for zinc and nickel are more stringent than

12 the current standards. Yet, given the reporting of the

13 sensitivity of mussels to these metals, we ask that the Board

14 require the IEPA to demonstrate that the proposed standards are

15 protective of these fauna. The sensitivity of mussels to

16 particulate metal should also be taken into account in the

17 evaluation of the impact of conversion to standards based on the

18 dissolved form of metals.

The use of the conversion factor and metals translator

20 should be clear. The Board should not adopt dissolved standards

21 without seeing how the proposed conversion factor and metals

22 translator will be applied. For factors which involve hardness

23 as a variable, this is important as the hardness of a given

24 effluent may differ dramatically from that of its receiving

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1 stream. In addition, the specifics of how and when a

2 site-specific metals translator will be deemed more appropriate

3 and receive Agency approval needs to be presented by the IEPA.

Deoxygenating waste rule should be protective of dissolved

5 oxygen levels. The Board should not adopt the proposed change in

6 the deoxygenating waste rule but should order IEPA to develop

7 proper methods for protecting dissolved oxygen, DO, levels in

8 Illinois waters. The evidence of low DO levels in Illinois

9 streams is accumulating. Researchers from the Max McGraw

10 Wildlife Foundation report measuring DO levels less than five

11 milligrams per liter at 9 out of 11 impoundments studied on the

12 Fox River. In some cases, the standard was violated over a

13 period of 16 hours.

Biological oxygen demand in effluent is made up of demand

15 by both carbonaceous and nitrogenous components. To determine

16 compliance with the Board's BOD5 standard by the analysis of

17 CBOD5, as is proposed, would ignore the nitrogenous component of

18 biological oxygen demand which a receiving water experiences.

Despite the IEPA's claim that nitrogenous BOD is regulated

20 by the incorporation of ammonia nitrogen limits into a permit,

21 testimony at the January hearing verified that the ammonia water

22 quality standard is based on its toxicity, not its contribution

23 to BOD loading to a water body.

Ammonia limits are not adequate to limit BOD because some

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1 permits do not have ammonia limits or have very loose ones. For

2 example, a draft permit for the Beardstown Sanitary District has

3 no ammonia limit despite the known dissolved oxygen problems in

4 the Illinois River. We have given this as Exhibit A.

If the Board adopts the IEPA's proposed CBOD5 language, the

6 Board will be approving IEPA's practice of allowing widely

7 different actual loadings of BOD, depending only on the

8 circumstances regarding ammonia toxicity. Differences in ammonia

9 limits are based on the pH and temperature of the receiving

10 waters, a factor in ammonia toxicity, not its BOD.

It is our understanding that the IEPA has been limiting

12 CBOD5 in municipal permits although the current rule provides for

13 BOD5 limits. The IEPA now proposes to make things worse by

14 allowing industrials to also substitute CBOD5 limits for BOD5

15 limits in their permits. In the case of GE Plastics, they

16 currently have a BOD5 limit of 20 milligrams per liter monthly,

17 and forty milligrams per liter daily, and an ammonia/nitrogen

18 limit of three milligrams per liter monthly and six milligrams

19 per liter daily. That is Exhibit B.

If because they nitrify, all the ammonia in their effluent

21 is oxidized in the BOD5 test, ammonia may now contribute up to

22 13.8 milligrams per liter BOD5 out of the 20 milligrams per liter

23 they are limited to on a monthly average basis. In this worst

24 case scenario, that 13.8 milligrams per liter of nitrogenous BOD5

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1 would still exist as well as the 20 milligrams per liter CBOD5

2 the proposed rules would allow them. This change could increase

3 the amount of BOD going into the Illinois River by nearly 70

4 percent.

Clearly, the proposed change in the rule could

6 significantly change the level of BOD which Illinois bodies of

7 water will receive. USEPA requires that a lower CBOD limit be

8 used when substituting for BOD in the one instance where it

9 allows such substitutions. That is, 25 milligrams per liter

10 CBOD5 can be substituted for 30 milligrams per liter BOD5.

If the Board feels it must use CBOD5 as the measured

12 parameter in permits, at minimum, you should use 8 and 16

13 milligrams per liter CBOD5 instead of 10 and 20 milligrams per

14 liter BOD5. However, we strongly urge you to first consider the

15 contribution which nitrogenous BOD makes to the total BOD load in

16 a typical effluent, as it appears that it can well be more than

17 15 percent of the total. Illinois' whole scheme for regulating

18 deoxygenating waste needs to be reconsidered.

Implementation rules are key to understanding the

20 implication of proposed new standards. For all aspects of the

21 proposal where we have concerns, the Board should not act before

22 seeing the Agency's implementation rules. The proposed changes

23 regarding cyanide, dissolved metals, and BOD5 can only be

24 understood if we have an idea of how the Agency will write the

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1 permits. Permit writing rules will ultimately drive how

2 protective the standards will be and the cost of the standards.

3 This is similar to the Great Lake Water Quality Initiative and

4 Antidegradation situations where the Board may ultimately decide

5 to consider for inclusion in its Board rules language which the

6 Agency thought should be in the Agency rules.

HEARING OFFICER TIPSORD: Before we proceed with questions,

8 I would like to admit your Exhibit A, which is the Beardstown

9 Sanitary District draft permit as Exhibit Number 12.

And your Exhibit B, the GE Plastics permit, the draft

11 permit, as Exhibit 13, if there is no objection.

Okay. Seeing none, then those will be admitted as Exhibits

13 12 and 13.

(Whereupon said documents were duly marked for purposes of

identification as Hearing Exhibits 12 and 13 and entered

into evidence as of this date.)

HEARING OFFICER TIPSORD: And now we will open it up for

18 questions for the Doctor.

BOARD MEMBER GIRARD: I have a question. Dr. Skrukrud, when

20 you were discussing dissolved oxygen levels, you made reference

21 to some data from the Max McGraw Wildlife Foundation on the BO

22 levels of the impoundment of the Fox River. Is that a specific

23 published paper? Do you have a reference or could you supply a

24 copy?

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MS. SKRUKRUD: It is a study that is just being completed.

2 So I heard of the study researchers report on their study, but

3 their written report is not yet out. I was last told that it

4 would be out in March. So it could -- I could, if it -- if it is

5 available I could submit it soon. I could also check with them

6 and see if there is a summary document that they already have

7 prepared that we can submit.

BOARD MEMBER GIRARD: Thank you. Or if they have any past

9 studies that you can bring to us, that would be very helpful.

MS. SKRUKRUD: Okay.

BOARD MEMBER JOHNSON: I guess while we are on studies and

12 reports, other witnesses testified during the day whether they

13 were aware of any studies or reports regarding the cyanide

14 toxicity on mussels. I guess I will ask you the same question.

15 Are you aware of any?

MS. SKRUKRUD: No. We have been asking, too. We have asked

17 for -- we have been doing the same thing that everyone has been

18 doing, looking and asking. As of now we have no additional

19 information that we can present.

BOARD MEMBER JOHNSON: Okay.

BOARD MEMBER GIRARD: I have a cyanide question, too, but

22 this is for the Agency.

BOARD MEMBER TRISTANO: I had a question for the Agency,

24 too, based on her testimony.

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HEARING OFFICER TIPSORD: Okay.

BOARD MEMBER GIRARD: Mine is cyanide. The question of

3 whether or not there is any toxicity studies on sculpins dealing

4 with cyanide has been raised. Do you know of any toxicity

5 studies on that, you know, any of those species?

MR. OLSON: Well, our document has what we have. As far as

7 I remember there was not any. In doing maybe 100 or more

8 criteria over the past few years I have seen it once or twice,

9 that some substance was tested on sculpins. That's about it.

BOARD MEMBER GIRARD: Thank you.

MR. MOSHER: We need to at some point supplement our

12 testimony in regard to Ms. Skrukrud's testimony. And some of

13 these things, in fact, that particular question was going to come

14 out in our additional testimony. So whenever you would like us

15 to do that --

HEARING OFFICER TIPSORD: Okay. You mean you have

17 additional testimony for today?

MR. SOFAT: Based on what we heard today.

HEARING OFFICER TIPSORD: All right. Then we will do that

20 at the end of the day if that's okay.

MR. ETTINGER: Well, we can do that at the end of day, but I

22 do think I want to raise now the possibility of a further

23 hearing. We keep getting a revised -- we keep getting a revised

24 proposal on the day of each hearing which, obviously, makes it

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1 somewhat difficult for us to react to it, and some of Ms.

2 Skrukrud's testimony, obviously, was addressed to a rule which is

3 now a moving target.

HEARING OFFICER TIPSORD: And I appreciate that, but I would

5 prefer that we wait and address an additional hearing after we

6 finish the questioning, so that we don't get a whole bunch of

7 discussion about a third hearing in the middle of questions when

8 we know we have more questions of the Agency and Dr. Skrukrud on

9 this stuff.

MR. ETTINGER: Very good.

HEARING OFFICER TIPSORD: Member Tristano, you had a

12 question?

BOARD MEMBER TRISTANO: Yes. I have a question for Mr.

14 Mosher. It relates to what Dr. Skrukrud has just talked about,

15 and that is on the hearing that we had on the 29th of January,

16 you answered specifically that you would present your

17 implementation rule, your drafted implementation rule at today's

18 hearing. You went on at great length at pages 41, 42, 43, and 44

19 of the transcript as to how that was -- and 45 -- how that was

20 important for the Board in its deliberations. My question is

21 what has changed?

MR. MOSHER: Well, what has changed is that our management

23 has told us that that implementation package is not ready yet to

24 share.

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BOARD MEMBER TRISTANO: Well, I can go through your

2 testimony in depth about how you suggested that it was critical

3 for us to look at that implementation before we could make our

4 decision. Who in management should I address the question to,

5 then? I assume this was sworn testimony.

MR. SOFAT: Yes.

BOARD MEMBER TRISTANO: Okay.

MR. SOFAT: At that time Mr. Mosher made the comments we

9 believed that we would have the document ready for the Board to

10 look at. Currently we have -- we are short of staff in the

11 Bureau of Water. And before the deadline arrived we talked to

12 our supervisors and we wanted them to look at it. And they

13 looked at it, and that's when it was determined that this draft

14 needs internal review. This cannot go out unless we have an

15 internal review. So we misstated, however, we were very

16 optimistic.

BOARD MEMBER TRISTANO: Well, no, I am not worried just

18 about the date. You know, I have missed many dates in my life,

19 unfortunately, on projects. But that is not the issue. The

20 issue is -- well, I will take you to page 42 of his testimony.

21 On page 42 he says that it is important, for the Agency really

22 needs some instructions from the Board on implementation. So it

23 is more than a date. It is a philosophy that there is some

24 interaction between what we are suggesting today that you are

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1 asking us to review and the actual implementation.

I could take you to the bottom of page 43 of the

3 transcript. I could take you to page 45 of the transcript, line

4 19 and 20. It is pretty replete in some of the answers. And I

5 am just wondering why -- what is the change in philosophy? I

6 understand missing a date. I understand that. We are all under

7 pressure, and there has been a reduction in government. But I am

8 wondering about the change of philosophy.

Is it now the position of the Agency that they don't need

10 the guidance from the Board, and there is not an interaction?

MR. MOSHER: Well, I would like to look at the transcript.

12 I don't recall the part that we need guidance from the Board. I

13 thought that we were going to be supplying -- the other way

14 around, that the Agency would be supplying the guidance to the

15 Board.

BOARD MEMBER TRISTANO: Well, I will read it to you. "Okay.

17 The Board's rules as they now exist and then with the changes

18 that we propose have several aspects that the Agency really needs

19 and some instruction."

MR. MOSHER: Really needs -- pardon?

BOARD MEMBER TRISTANO: Yeah, well, it is your language, not

22 mine. "Really needs and some instruction." "And I think people

23 looking at what the Agency would like to do need to know what the

24 procedures the Agency will have, to be put in place."

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MR. MOSHER: Well, when we come up with this Agency rules

2 document, it will undergo a public process and we will get input.

3 I am sure Mr. Ettinger already knows what some of his input is

4 going to be, and others will have input. And that's going to be

5 probably a longer process than the ones -- the one we are

6 involved in now.

While our management at the Agency has said that this is

8 not ready, we are here and available today to answer questions on

9 implementation. Like a written document that if we were to hand

10 you one today, these answers will be, from our understanding

11 right now, without Mr. Ettinger's input, without any other input.

12 Because no one -- no one has seen this document. So in one form

13 or another we will do the best we can today and answer questions.

14 But those answers might not hold. If people suggest changes, you

15 know, it will be a different situation. And that's part of our

16 whole issue here of when to give the document, when it is going

17 to be ready, is that it is a moving target.

BOARD MEMBER TRISTANO: Sure. Okay. Thank you for the

19 answer.

HEARING OFFICER TIPSORD: Okay. Anything further for Dr.

21 Skrukrud at this time? Mr. Polls.

MR. POLLS: I have some follow-up questions.

HEARING OFFICER TIPSORD: Could you speak up? We are having

24 a hard -- there is some noise up here.

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MR. POLLS: Under item number four in your testimony, you

2 said there was evidence of low DO levels. How do you define low

3 DO?

MS. SKRUKRUD: A violation of the standard.

MR. POLLS: Then what you mean rather than low is you mean a

6 violation, correct?

MS. SKRUKRUD: Yes.

MR. POLLS: Now, you also refer in your --

THE COURT REPORTER: Excuse me. I didn't hear. I am

10 sorry.

HEARING OFFICER TIPSORD: Mr. Polls, you are going to have

12 to come up front because we can't hear you.

MR. POLLS: Do you have any information, references, that

14 specifically tell you that there are Illinois streams with low

15 DOs that it is accumulating? Is this your opinion, or is there

16 information that you have in the literature? Do you have

17 references?

MS. SKRUKRUD: Well, I gave the example of this new study on

19 the Fox River.

MR. POLLS: I am asking do you have any other examples other

21 than the specific example on the Fox, because you said in

22 Illinois streams.

MS. SKRUKRUD: I have not pulled that together, no.

MR. POLLS: So when you say that there is evidence of low DO

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1 levels in Illinois streams accumulating, you have no information

2 specifically that says that? That is your opinion? Because what

3 I am asking for is do you have any information that tells you

4 that? Or is that your opinion that it is accumulating? Have you

5 looked at the Illinois 305(b) reports or the 303(d) list?

MS. SKRUKRUD: Yes, I have looked at those reports. There

7 are -- and I have to -- the most -- the Fox River system is one

8 of the systems that I am most familiar with. The Fox River is

9 listed in the 305(b) report for problems with DO levels. But,

10 no, I have not gone through the whole 305(b) report and tallied

11 the number of water bodies that are listed.

MR. POLLS: Could you provide the Board with additional

13 information as far as what other water bodies that have --

MS. SKRUKRUD: I would be happy to do that.

MR. POLLS: Under item number four, near the end it says,

16 USEPA -- or in your testimony you said that the USEPA requires

17 that a lower CBOD limit be used when substituting for BOD in the

18 one instance where it allows for such substitution. Do you have

19 a reference on that?

MS. SKRUKRUD: No, but I can -- not with me, but I can get

21 it.

MR. POLLS: Is that in a federal regulation? Is it a

23 rulemaking?

MS. SKRUKRUD: Yes, it is a federal regulation.

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MR. POLLS: Okay. So you can provide that. Okay. Finally,

2 in there in the second to the last sentence you said, however, we

3 strongly urge you to first consider the contribution of which

4 nitrogenous BOD makes to the total BOD load in a typical

5 effluent, as it appears that it can be more than 15 percent of

6 the total -- can well be more.

Where did you get the 15 percent? Is that a reference?

8 Where did you get that number?

MS. SKRUKRUD: That would be the 15 percent -- what we

10 are -- when we talk about here the possibility of -- when we make

11 the suggestion that if you are going to substitute CBOD5 for BOD5

12 that it should be a lower value, that value, 25 compared to 30, 8

13 compared to 10, and 16 compared to 20, is 15 percent less.

MR. POLLS: Okay.

MS. SKRUKRUD: That's where that number comes from.

MR. POLLS: Okay. Thank you.

HEARING OFFICER TIPSORD: Mr. Callahan?

MR. CALLAHAN: Yes. Cynthia, do you have any idea of the

19 stoichiometric relationship between ammonia and oxygen demand?

MS. SKRUKRUD: Yes, I do.

MR. CALLAHAN: What is that?

MS. SKRUKRUD: 4.6.

MR. CALLAHAN: Right. So Let's presume that we have

24 Beardstown, which is discharging to the Illinois River, you said?

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MS. SKRUKRUD: Yes.

MR. CALLAHAN: Do we know the dilution capability of the

3 Illinois River with regard to the discharge coming from

4 Beardstown?

MS. SKRUKRUD: I don't think I have that in materials in

6 front of me.

MR. CALLAHAN: You indicated that the limit in their permit

8 was 3, I believe I heard you say, milligrams per liter of

9 ammonia?

MS. SKRUKRUD: No, that was when I was talking about the GE

11 Plastics permit. There is no ammonia limit in the Beardstown.

MR. CALLAHAN: What is their BOD limit?

MS. SKRUKRUD: They have a CBOD5 limit of 20 milligrams per

14 liter, a monthly average, and a weekly average of 40.

MR. CALLAHAN: Okay. Well, that would require by our state

16 regulations significant dilution capability of that effluent,

17 right? Is that your understanding?

MS. SKRUKRUD: They would have to have a dilution ratio of

19 greater than 5 to 1.

MR. CALLAHAN: Right.

MS. SKRUKRUD: Otherwise, they would have to have a 10 to 12

22 limit.

MR. CALLAHAN: Right. Exactly. Okay. How much of the --

24 am I to -- what is your understanding of the rate at which

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1 nitrogenous oxygen demand is determined in a five day BOD test?

MS. SKRUKRUD: Well, it really -- it could depend -- it

3 depends on whether there is nitrifying bacteria present, whether

4 you are likely to see -- whether your BOD test is likely to

5 measure a nitrogenous BOD.

MR. CALLAHAN: Okay. But you --

MS. SKRUKRUD: You need the nitrifying bacteria in your

8 test --

MR. CALLAHAN: Right.

MS. SKRUKRUD: -- to be able to measure that.

MR. CALLAHAN: Precisely, right. My point, though, is that

12 if we are going to look at going from a five day total BOD

13 effluent limit to a five day carbonaceous BOD effluent limit,

14 have we suddenly ignored all of the nitrogenous oxygen demand in

15 the sample?

MS. SKRUKRUD: My understanding is when you want to measure

17 a -- when you do a CBOD5 test, that you add something to inhibit

18 the nitrifying bacteria, so that you actually are measuring only

19 the --

MR. CALLAHAN: No, no, I mean --

MS. SKRUKRUD: -- CBOD.

MR. CALLAHAN: If we go from a five day BOD test to a

23 carbonaceous BOD test, your contention is that we are suddenly

24 ignoring the nitrogenous oxygen demand of the water that we are

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1 testing?

MS. SKRUKRUD: Yes, you could be. Yes.

MR. CALLAHAN: Are we ignoring all of it?

MS. SKRUKRUD: No, you are not necessarily ignoring all of

5 it. It is a complicated --

MR. CALLAHAN: Actually, we --

MS. SKRUKRUD: It is a complicated --

MR. CALLAHAN: We really ignore very little of it, don't we,

9 when we think about it? Isn't an ultimate oxygen demand test one

10 that goes for 60 to 90 days the procedure by which we would

11 determine both all of the nitrogenous oxygen demand and all of

12 the carbonaceous oxygen demand?

MS. SKRUKRUD: Yes.

MR. CALLAHAN: So if we have to go from five days out to 90

15 days to measure the total nitrogenous oxygen demand through the

16 ultimate oxygen demand test, then just how much of it are we

17 really missing by going from a total BOD5 to a carbonaceous BOD5?

18 Correct me if I am wrong. It is my understanding that that

19 portion of the nitrogenous oxygen demand is very, very small

20 compared to the total nitrogenous oxygen demand that we would

21 have to sample?

MS. SKRUKRUD: In a BOD --

MR. ETTINGER: Are you testifying?

MS. SKRUKRUD: In a BOD5 test, is that what you are saying?

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MR. CALLAHAN: Yes.

MS. SKRUKRUD: Well, my understanding is even more

3 complicated, because it can vary -- what the -- the amount of

4 nitrogenous BOD that you measure in a five day test can vary --

5 it varies very much on the presence of nitrifying bacteria.

MR. CALLAHAN: Right.

MS. SKRUKRUD: So if you have a plant that is nitrifying,

8 you may well see a greater percentage of that, of the total

9 nitrogenous BOD present itself in the five day test.

MR. CALLAHAN: What of the nutrient salts that we have to

11 add as a source of micronutrients for the organisms that we

12 employ in BOD bioacid? Is ammonium sulfate? In other words, we

13 are adding ammonium sulfate to the test.

HEARING OFFICER TIPSORD: Mr. Callahan, could we go ahead

15 and have you sworn now.

(Whereupon Michael Callahan was sworn by the Notary Public.)

HEARING OFFICER TIPSORD: Thank you.

MR. CALLAHAN: Okay. We are adding ammonium.

MS. SKRUKRUD: Well, obviously, if you add ammonium you need

20 to take that into account.

MR. CALLAHAN: Or we need to assume that maybe the test

22 really was not set up to measure that in the first place, right?

MS. SKRUKRUD: Exactly, and so maybe --

MR. CALLAHAN: Okay. One of --

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HEARING OFFICER TIPSORD: Let her finish, Mr. Callahan.

2 Please let her finish her answer.

MR. CALLAHAN: Okay. I am sorry.

MS. SKRUKRUD: Possibly a better way to get a handle on the

5 BOD in effluent would be a test that -- a CBOD5 test that

6 measures the carbonaceous BOD demand and then a calculated

7 nitrogenous BOD that you calculate based on the ammonia in your

8 effluent.

MR. CALLAHAN: Right. So then if we were going to measure

10 secondary or tertiary treatment processes, as required by federal

11 law, then we would be measuring them by the CBOD parameter and we

12 would be looking at nitrogenous oxygen demand through a different

13 venue?

MS. SKRUKRUD: You could do that.

MR. CALLAHAN: Okay. Most of our permits that are issued

16 across the state by the Agency today have permit numbers

17 somewhere in the vicinity of 1 to 2 as a monthly average in the

18 summer. Would you agree?

MR. ETTINGER: Excuse me, 1 to 2 what?

MR. CALLAHAN: Milligrams per liter, ammonia, give or take.

MS. SKRUKRUD: I couldn't say because I have not reviewed

22 all of the permits. I see a lot of permits with a summer monthly

23 average in that range, but then I have seen permits where there

24 are no ammonia levels.

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MR. CALLAHAN: Okay. Let's assume where they exist they are

2 important and let's assume that it is 2. Okay. And 4.6, that

3 means a BOD of 9.2, right? A straight --

MS. SKRUKRUD: Yes.

MR. CALLAHAN: So we are not talking about tons of

6 nitrogenous BOD that is being released in the effluent, are we?

MS. SKRUKRUD: Well, if you have a plant on a small stream

8 where, say, you have an ammonia limit of 2 milligrams per liter,

9 and that is exerting a -- giving you an end BOD of 9.2 milligrams

10 per liter, and say you have a permit that has a -- it is small

11 stream so you don't have much dilution so your CBOD5 limit is 10,

12 then your nitrogenous BOD is as much as your CBOD.

MR. CALLAHAN: I will get into this somewhat in my

14 testimony. But I think, once again, we get back to the

15 Streeter-Phelps equation which has an oxygen demand parameter in

16 it that is completely different from the nitrogenous oxygen

17 demand. And the principal application of those two

18 considerations is the decay coefficiency parameters that are

19 markedly different. And there is a tremendous longitudinal

20 distribution of the oxygen demand that is exerted by both

21 species.

But the fact of the matter remains that we are still

23 talking about somewhere in the vicinity of 5 to 10 milligrams per

24 liter BOD with an ammonia permit of 1 to 2 milligrams per liter,

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1 something like that. It is not a 200 or a 300 milligram per

2 liter oxygen demand.

HEARING OFFICER TIPSORD: Mr. Keller?

MR. KELLER: I would like to make a couple of comments in

5 answer to Mr. Callahan's questions. One is concerning the

6 dilution ratio. If you look at Exhibit A of Ms. Skrukrud's

7 prefiled testimony, it gives the seven day ten year low flow of

8 the Illinois River as 3,634 CFS. That equates to 2,347 MGB. And

9 the design average flow of 4. The Beardstown plant is 1.13

10 million gallons per day, so that would provide a dilution ratio

11 of 2,077 to 1.

I would like to also respond to another question that he

13 had concerning the number of permits that have ammonia limits in

14 them. There are very many permits that have ammonia limits in

15 them because of the low dilution ratio and taking the ammonia

16 into account.

HEARING OFFICER TIPSORD: Okay. Thank you.

MS. SKRUKRUD: In presenting the Beardstown permit, our

19 intention there was to just present an example of a permit where

20 there is no ammonia limit.

HEARING OFFICER TIPSORD: Mr. Harsch?

MR. HARSCH: Cindy, are you not part of a study group of

23 environmental groups and POTWs that are involved in looking at

24 the Fox River, and one of the parameters that you are looking at

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1 is the potential impact that dischargers are having on the Fox

2 River, the potential impact that those dischargers are having on

3 the Fox River, including dissolved oxygen at the present time?

MS. SKRUKRUD: Yes, the Fox River study that we are

5 currently getting underway is designed not just to look at the

6 impact of point sources but nonpoint sources on what is happening

7 at the Fox River.

MR. HARSCH: And you were also aware, are you not, that the

9 Fox River has a very important recreational value for sport

10 fishery, and is recognized as having a very high quality present

11 reputation for its sport fishery in terms of the small mouth bass

12 at the present time, despite the draft study reporting lower DO

13 values; is that correct?

MS. SKRUKRUD: I will really try and get this study -- make

15 this study available to the --

MR. HARSCH: There are a number of guides -- there are a

17 number of guides that are doing guide services at the present

18 time out there at the Fox River?

MS. SKRUKRUD: Pardon?

MR. HARSCH: There are a number of fishing guides, a number

21 of commercial guide services --

M S. SKRUKRUD: Yes, I was --

MR. HARSCH: -- at the Fox River right now? There is a lot

24 of recreational value right now?

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MS. SKRUKRUD: Yeah, well, that is.

MR. HARSCH: Is that --

MS. SKRUKRUD: Okay. What I was going to say, what I wanted

4 to say about the study that the Max McGraw Wildlife Foundation

5 has done is that it does show that in addition to measuring

6 dissolved oxygen levels, there is information available on fish

7 populations at various points along the river. And the study

8 shows that where there is low DO levels there is a depleted

9 population of fish, and in the parts of the river where you have

10 higher water quality that we do have very good fisheries on the

11 Fox River.

HEARING OFFICER TIPSORD: Anything further?

MR. POLLS: Yes.

HEARING OFFICER TIPSORD: Mr. Polls.

MR. POLLS: I have a follow-up. On the Beardstown permit,

16 you say in your testimony, for example, a draft permit for the

17 Beardstown Sanitary District has no ammonia level despite the

18 known dissolved oxygen problems in the Illinois River.

Have you looked at the 305(b) list specifically? Does it

20 say in that 305(b) list that there is a dissolved oxygen problem

21 in the Illinois River, or is that your belief?

MS. SKRUKRUD: I will need to go back and look specifically

23 at the 305(b) list. There have been reports of dissolved

24 oxygen -- low dissolved oxygen levels in the Illinois River in

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1 the past. Whether that -- that is a subject under much

2 discussion.

MR. POLLS: Well, that is the past. Because why I am asking

4 you the question is because here you are basically saying because

5 there is no ammonia limit, I guess you are suggesting that that

6 ammonia limit through the NOD is causing a problem as far as DO.

I want you to go back specifically and find out is there a

8 current problem in DO. I don't want to know about the past. I

9 want to know currently based on the permit is there a problem

10 regarding dissolved oxygen in that segment, the segment below

11 their discharge.

All you have to do is go back to the 305(b) list and find

13 out if that segment below their discharge is limited for DO.

MS. SKRUKRUD: I can certainly check into that. Once again,

15 the point was to give an example, not specific -- to talk about a

16 specific statement on the Illinois River, but to give an example

17 of a permit where there are no ammonia limits.

MR. POLLS: All I am getting at is you make statements in

19 here that I want backed up by actual information, unless you are

20 claiming that there is a DO problem, as a scientist, I want to

21 know specifically was it identified by the IEPA as a problem.

It is my understanding there is no DO problem in the

23 Illinois River. It is not on the 305 --

HEARING OFFICER TIPSORD: Mr. Polls, we are going to have to

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1 have you sworn.

(Whereupon Mr. Irwin Polls was sworn by the Notary Public.)

HEARING OFFICER TIPSORD: Thank you.

MR. POLLS: Let me ask the Agency. Do you know, is the

5 Illinois River on the 305(b) list for dissolved oxygen?

MR. MOSHER: Do you mean the 303(d) list?

MR. POLLS: Well, the assessment was made on 305. On the

8 305(b) was DO found as a problem in the Illinois River and then

9 translated on the 303(d) list? I don't care which one you look

10 at.

MR. MOSHER: Well, we just noted in the Beardstown example

12 provided in the testimony here that particular segment is not

13 listed as impaired. So it is a fully supporting water.

MR. POLLS: Okay.

MR. MOSHER: There are other segments on the Illinois River

16 that I believe are listed on the 303(d), and it would be quite

17 easy to verify whether dissolved oxygen is a cause of impairment

18 in those segments if we had the report in front of us, which we

19 don't. So we could come back to the Board and --

MS. SKRUKRUD: We can all go home and look it up on the

21 303(d) list.

MR. MOSHER: Okay.

HEARING OFFICER TIPSORD: Mr. Falkner.

MR. FALKNER: Just for a point of clarification and perhaps

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1 the department staff can provide some insight. If I heard things

2 correctly, the facilities that do not have an ammonia limit are

3 typically those where there is significant dilution and where

4 their probability of impact to the stream is negligible?

MR. MOSHER: That's true.

MR. FALKNER: So that, yeah, there are permits, and if I

7 have heard right, and maybe I am carrying this too far, but there

8 may well be a lot of permits out there that do not have an

9 ammonia limit, however, they didn't have an ammonia limit because

10 they represented a relatively insignificant impact on the stream

11 and, therefore, wouldn't need it. Is that paraphrasing

12 correctly?

MR. MOSHER: That's a true statement, yes.

HEARING OFFICER TIPSORD: Okay. Thank you. Is there

15 anything further?

Okay. I think it looks like we are going to have to break

17 for lunch and come back.

MR. ETTINGER: Who do we have other than Callahan?

MR. FALKNER: Me. I don't care. I can say mine in about a

20 minute.

MR. MOSHER: Well, we still have our additional testimony.

MR. ETTINGER: All right.

HEARING OFFICER TIPSORD: I was going to say, the Agency has

24 indicated that they have additional testimony to give this

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1 afternoon, too.

So let's be back at 2:00, please. Let's start promptly at

3 2:00. We have people who need to drive back north today. Thank

4 you.

(Whereupon a lunch recess was taken from approximately 1:00

p.m. to 2:00 p.m.)

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A F T E R N O O N S E S S I O N

(March 6, 2002; 2:00 p.m.)

(Board Member Flemal not present for the afternoon session

after the lunch recess.)

HEARING OFFICER TIPSORD: Thank you, everyone, for being

6 back so promptly. That is probably the fastest I have seen

7 everybody back. Thank you very much.

We are going to pick up with the testimony of Michael

9 Callahan, on behalf of the Illinois Association of Wastewater

10 Agencies. Mr. Harsch and Mr. Callahan.

MR. HARSCH: My name is Roy Harsch with Gardner, Carton &

12 Douglas, here on behalf of the Illinois Association of Wastewater

13 Agencies.

Mike Callahan is the Executive Director of the

15 Bloomington-Normal Water Reclamation District, here on behalf of

16 the Illinois Association of Wastewater Agencies. Mr. Callahan.

HEARING OFFICER TIPSORD: We need to have you -- I am sorry.

18 We previously swore you in. I am sorry.

MR. CALLAHAN: Yes, you did. Okay. I will tell you a

20 little bit about my background before I get into my prefiled

21 testimony. Then after reading that, I would like to sort of

22 ad-lib a discussion about a couple of other items that I have

23 heard during this morning's session.

I have a Bachelor of Science Degree from Illinois State

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1 University, with a double major in biology and environmental

2 health. I have Master's work at the University of Missouri,

3 Columbia, biological sciences, doctoral work at ISU, also in

4 biological sciences, and both of those efforts involve ecosystem

5 nutrient cycling.

I have been with the Bloomington & Normal Water Reclamation

7 District for 30 years. For 14 of those years I have been the

8 Executive Director. I have held an Illinois EPA Class I

9 Wastewater Treatment Plant Operator's License since 1977.

I have been involved in a number of professional

11 organizations within the state regionally, and that includes Past

12 President of the Illinois Association of Wastewater Agencies,

13 Past President of the Illinois Water Pollution Control Operators

14 Association, Past Chairman, as well as Trustee, of the Central

15 States Water Environmental Association, Illinois Section.

What I would like to do is get right into my written

17 testimony, read that verbatim.

I am submitting this testimony to the Pollution Control

19 Board in support of a component of the proposal made by the

20 Illinois Environmental Protection Agency in PCB R02-11.

21 Specifically, the IAWA endorses the Agency's recommendation to

22 change the term designating the oxygen demand of wastewater

23 effluents from the term five day biochemical oxygen demand to

24 five day carbonaceous biochemical oxygen demand.

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It is IAWA's observation that opposition to this change is

2 based on the erroneous belief that the change will relax the

3 existing effluent standard. The IAWA believes that the change is

4 not a mechanism to relax existing effluent standards. Rather,

5 the reason for the change in this term is the need to clarify the

6 terminology of the present regulations. In support of its view,

7 the purpose of this testimony is to provide the Board with a

8 collective IAWA recollection of the history of this matter in

9 Illinois.

IAWA believes that the effluent regulation of BOD5 in NPDES

11 discharge permits issued by the Board's rules was historically

12 intended to address five day carbonaceous biochemical oxygen

13 demand. The effluent limit at issue was first considered by the

14 Board in PCB R71-14. Please see the Opinion of the Board in PCB

15 R71-14, as written by Mr. Currie on March 7th, 1972. The general

16 intent of the R71-14 proceedings was to consolidate and codify

17 the various water quality standards that the Board had inherited

18 from its predecessor, the Sanitary Water Board. One of the

19 standards considered in this docket was the effluent limit for

20 BOD5. Prior to the R71-14 rulemaking, the effluent limit for

21 BOD5 in Illinois had been developed by the Sanitary Water Board

22 and was established as four milligrams per liter. The initial

23 proposal of PCB R71-14 contained a recommendation of a water

24 quality standard for BOD of seven milligrams per liter. Through

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1 the rulemaking process the Board decided to delete such a

2 standard. On page five of the Opinion of the Board the following

3 statement was made relative to this water quality standard.

Quote, the evidence is that the effect of a given level of

5 BOD on a stream is too dependent upon reaeration rates to make

6 any prescribed standard meaningful, unquote.

Also during the R71-14 proceeding, Dr. John Pfeffer

8 provided testimony that the four milligram per liter BOD limit

9 was overly protective for most streams of Illinois. He stated in

10 his testimony that the Streeter-Phelps stream reaeration

11 equation, using reaeration rate constants typical of small

12 Illinois streams with low dilution ratios, showed that a BOD

13 effluent limit of ten milligrams per liter was protective of our

14 present day dissolved oxygen water quality standards.

The Board concurred with Dr. Pfeffer's contention and

16 adopted a BOD effluent limit of ten milligrams per liter

17 contingent upon the downstream dissolved oxygen levels remaining

18 adequate. This analysis by Dr. Pfeffer has since come to be

19 known as the "Pfeffer Exemption" and was applied by the Agency to

20 issue effluent BOD limits of ten milligrams per liter in

21 Illinois.

The following text is taken from the discussion contained

23 in the Opinion of the Board in R71-14 on page 15. Quote, as Dr.

24 Pfeffer points out, the BOD5 test principally measures the

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1 carbonaceous BOD and ignores the often delayed but eventual

2 oxygen demand exerted by ammonia, to which we have directed our

3 attention in the regulations adopted January 6, unquote.

This statement in the Opinion of the Board has historically

5 been interpreted to imply that effluent regulation of BOD5 in

6 NPDES discharge permits issued by the Board's rules was meant to

7 address five day carbonaceous biochemical oxygen demand.

8 Additional text taken from page 15 of the Opinion of the Board

9 states:

Quote, inherent in Dr. Pfeffer's proposal, as several

11 witnesses representing municipal dischargers expressly agreed, is

12 that a considerable number of plants may be required to do

13 something about ammonia in addition to those already subject to

14 the January 6 effluent standards, unquote.

This statement by the Board was, at that time, quite

16 farsighted, given the extent to which dischargers have

17 subsequently been required to provide nitrification capability in

18 their wastewater treatment processes. This is evidenced by the

19 example used in the Opinion of the Board on page 15 to illustrate

20 the extent of nitrogenous oxygen demand. This example involved

21 an ammonia concentration of 20 milligrams per liter. The

22 evolution of effluent ammonia regulation within Illinois has,

23 since the R71-14 proceedings, established an absolute maximum

24 discharge limit of 15 milligrams per liter with the vast majority

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1 of NPDES permits containing limits of between less than one

2 milligram per liter and four milligrams per liter.

Though it is clear that the Board originally intended to

4 regulate biochemical oxygen demand in wastewater discharges as

5 five day carbonaceous biochemical oxygen demand, after the

6 adoption of the ten milligrams per liter CBOD5 effluent standard

7 by the Board, the Agency remained obligated by USEPA to determine

8 the efficiency of secondary treatment plant processes in terms of

9 85 percent BOD5 removal. Initially the BOD5 required by USEPA

10 for this determination was total BOD5. Consequently, the Agency

11 initially wrote NPDES permits for Illinois dischargers with total

12 BOD5 effluent limits.

A problem shortly developed with the use of the total BOD5

14 test for determining secondary treatment process efficiencies.

15 Wastewater treatment plants, which were under-loaded organically,

16 were found to inadvertently develop some nitrification

17 capabilities and the effluents of these plants were thus

18 inoculated with nitrifying bacteria. These nitrifying bacteria

19 would then exert a nitrogenous oxygen demand in vitro when

20 subjected to the BOD5 analysis. A portion of the sample's -- a

21 portion of the sample's nitrogenous oxygen demand was, therefore,

22 being detected simultaneously with the carbonaceous biochemical

23 oxygen demand, resulting in an erroneously high analytical

24 result.

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The converse of this situation also occurred. Secondary

2 treatment systems that provided no nitrification capability would

3 not inoculate their effluents with nitrifying bacteria, and thus

4 the nitrogenous oxygen demand of these samples would not be

5 detected. Consequently, such effluents could be determined by

6 the total BOD5 test to be of comparable or better quality than

7 the under-loaded treatment plants which, in reality, were

8 producing higher carbonaceous oxygen demand removal efficiencies

9 and better overall treatment. A detailed discussion of this

10 phenomenon is given in the following two articles enclosed with

11 this submittal:

Attachment A, Nitrification in BOD5 Test Increases POTW

13 Noncompliance, J.C. Hall and R.I. Foxen, Journal of the Water

14 Pollution Control Federation, Volume 55, Number 12, pages 1461

15 through 1469, December, 1983.

Attachment B, 30/30 Hindsight, K.B. Carter, Journal of the

17 Water Pollution Control Federation, Volume 56, Number 4, pages

18 301 through 305, April, 1984.

This inconsistency was realized by USEPA in 1984. USEPA

20 subsequently determined that the use of carbonaceous BOD5 was a

21 better measurement of secondary treatment removal efficiencies

22 than was total BOD5, and thus authorized the use of CBOD5 as the

23 parameter for such determinations. At that time the Agency began

24 issuing NPDES permits in Illinois with effluent BOD limits

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1 defined in terms of CBOD5 believing that such was the original

2 intent of the Board.

Another source of information on this matter can be found

4 in the recognized source of analytical protocol used by our

5 industry, Standard Methods for the Examination of Water and

6 Wastewater, commonly referred to as Standard Methods.

Attachment C, with this testimony, is a copy of the

8 introduction to the section on biochemical oxygen demand from

9 Standard Methods, 20th Edition. Standard Methods clearly states

10 that, quote, nitrogenous demand historically has been considered

11 an interference in the determination of BOD, as clearly evidenced

12 by the inclusion of ammonia in the dilution water, unquote.

Further, Standard Methods indicates that only ultimate

14 oxygen demand will measure both the carbonaceous oxygen demand

15 and the nitrogenous oxygen demand. The ultimate biochemical

16 oxygen demand test exists as only a proposed analytical procedure

17 at this time in Standard Methods, 20th Edition. An incubation

18 period of 60 to 90 days is required for this test. This is

19 obviously not the type of oxygen demand determination that was

20 considered with the initial application of the BOD5 effluent

21 regulation.

The IAWA believes that the present action before the Board

23 regarding BOD is an attempt to more clearly define the wording

24 and terminology of this existing regulation, in accordance with

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1 the Board's historical intent, and not an attempt to affect a

2 quantitative change in allowable discharges of biochemical oxygen

3 demand. The accuracy of the BOD5 test has always been a problem

4 because of the variable contribution of the nitrogenous BOD5 to

5 the point that the BOD5 test is of limited value. From a

6 performance measure, compliance measure, and from an historical

7 regulatory perspective, CBOD5 is the appropriate test for

8 wastewater discharges.

IAWA appreciates this opportunity to provide testimony and

10 input to this current proceeding. The IAWA has a history before

11 the Board of contributing to the development of protective and

12 economically justifiable water quality and effluent standards.

13 The IAWA wishes to continue with such assistance and will remain

14 at the Board's disposal for further assistance in this matter.

That would conclude my written testimony. I would like to

16 elaborate, as I earlier indicated, just a few points that I have

17 noticed of interest that came up this morning. First of all, I

18 think that the issue that is before us with both antagonists and

19 supporters of this change is more appropriately viewed from three

20 different perspectives.

First, we are looking at a USEPA required monitoring of our

22 secondary treatment efficiencies, which has been determined to be

23 done with biochemical oxygen demand removal. The most accurate

24 and meaningful way to do that is with CBOD, and that is the

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1 origin of the effluent limits that we currently find -- with

2 which we have to deal with.

Ammonia has been discussed this morning as a toxicant, and

4 the regulations that control it within our state have also been

5 seen to be either adequate or inadequate to control its oxygen

6 demand. I think we need to look at ammonia as a toxin and not

7 look at ammonia as an oxygen demanding parameter. Unless we move

8 into another realm of monitoring, which I believe the Agency and

9 the state will shortly find itself, and that is with nutrients.

10 Now, you heard a little bit of discussion this morning about

11 diurnal oxygen variations, the ability of an overly enriched

12 water body to effectively deplete itself of oxygen. Ammonia as a

13 form of nitrogen is a contributor to this.

In keeping with that, the Board would not be expected, I

15 don't think necessarily, to be aware of this. But there has been

16 some discussion about the adequacy of our BOD standard in this

17 state. Perhaps, indeed, it is too high in some circumstances.

18 This is an issue that will all be worked out, I think, within the

19 next three or four years and undoubtedly it will be before the

20 Board for some action shortly beyond that. I think that is the

21 appropriate venue to look at oxygen demand in terms of a nutrient

22 parameter such as ammonia.

Secondly, I would like to move on to the stoichiometric

24 discussion that I had with Cindy here earlier today. We are

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1 looking at a 4.5 ratio of oxygen demand per milligram per liter

2 of ammonia. Our permit effluence in this state are currently, as

3 I say, somewhere between 1 and 4, depending on the nature of the

4 receiving stream and the time of year. We are not talking about

5 horrendous amounts of oxygen demand that are being released in

6 the form of ammonia.

That would lead into my third point that I would like to

8 talk about, which is the Streeter-Phelps equation that was also

9 mentioned this morning. That has historically used carbonaceous

10 BOD as the oxygen demand component, and it has also had a

11 variable coefficient that accompanies ammonia and the

12 consideration of stream reaeration capabilities.

So that has, indeed, separated the two entities right

14 there. And, again, this is in response to different decay rates,

15 based upon carbonaceous organic source of oxygen demand as

16 opposed to one of a nitrogenous source.

I had occasion to speak with Dr. Pfeffer last week and

18 basically asked him if what I was presenting to you here this

19 morning was his recollection and his intent of what he had

20 advocated some 30 years ago, and he concurred that, indeed, it

21 is.

I would also like to draw the Board's attention to

23 something that we have noticed. If you go back and review your

24 web site since 1995, you will find reference to 17 provisional

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1 variances which have been granted to various dischargers across

2 the state, referencing directly Sections 304.120 and 304.141, and

3 all of these provisional variances address carbonaceous BOD.

So I basically think that what we are looking at here is an

5 attempt by IEPA to effectively house clean our regulation, to put

6 it on paper specifically what it is that we have already been

7 doing for 20 years, and effectively there will be no relief

8 beyond what we have -- beyond the levels that we have been

9 treating for the last 20 years.

So that would conclude my testimony.

HEARING OFFICER TIPSORD: Before we go to questions, some

12 housekeeping. You have three attachments to your testimony,

13 Attachment A, Attachment B, and Attachment C.

If there is no objection, I will be entering attachment A

15 as Exhibit 14, and Attachment B as Exhibit 15, and Attachment C

16 as Exhibit 16.

Are there any objections? Okay. Seeing none, those will

18 be admitted.

(Whereupon said documents were duly marked for purposes of

identification as Hearing Exhibits 14, 15 and 16 and entered

into evidence as of this date.)

HEARING OFFICER TIPSORD: Then I will open the floor for

23 questions.

MR. ETTINGER: First of all, if you don't mind, can I stand

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1 over here next to the court reporter. It would be a little

2 awkward with me talking to Mr. Callahan's back of his head the

3 whole time.

HEARING OFFICER TIPSORD: Sure.

MR. ETTINGER: First of all, I want to say I think we

6 disagree a lot more than -- I am sorry -- disagree a lot less

7 than has been implied by some of the questioning here.

But going through first your testimony, as I understand the

9 way Dr. Phillips did the Streeter --

MR. CALLAHAN: Pfeffer.

MR. ETTINGER: I am sorry. The way Pfeffer did the

12 Streeter-Phillips equation.

MR. HARSCH: Phelps.

MR. ETTINGER: Phelps. You are going to make me sound much

15 better than I am, right?

Okay. They had a CBOD -- a CBOD equation and an ammonia

17 calculation in this. Do you know -- or have you seen this study?

18 And do you know whether, when he calculated that, the ten BOD

19 was -- when he calculated that, that the ten BOD was protective

20 when there was a 5 to 1 dilution? What amount of ammonia did he

21 assume would be discharged?

MR. CALLAHAN: I don't know that he assumed anything there

23 unilaterally or, rather, universally, Albert. The whole thing

24 addresses -- I think it is the statement that was referenced

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1 here, the site-specific capabilities of the streams to reaerate

2 themselves. I think we look at -- my understanding of it, and I

3 am not going to speak for Dr. Pfeffer, because he is not here.

4 He agreed --

MR. ETTINGER: You already have.

MR. CALLAHAN: -- to what I would say here in general. But

7 I don't know exactly what he did or not. But there is a

8 significantly different differential decay rate for ammonia as

9 compared to organic material. This was something that I think

10 has been very strongly recognized over the years. That's the

11 reason for the inclusion of both parameters in the calculation.

What that means is that that oxygen demand for ammonia if,

13 indeed, it is met, is going to be expressed further down stream.

14 And in all likelihood, after the oxygen demand for the organic

15 material has been fulfilled. That's why it exists as a different

16 parameter.

MR. ETTINGER: Okay.

MR. CALLAHAN: The extent to which he plugged four parts per

19 million, or two and a half parts per million, or 20 parts per

20 million in the ammonia slot, I think is really not relevant,

21 because it is going to depend basically upon the individual

22 stream, which is being analyzed. The considerations in that are

23 sediment composition, radiant, time of year, temperature

24 affecting oxygen solubility. There are a variety of factors that

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1 go into that.

MR. ETTINGER: Since you are such a pal of Pfeffer's, could

3 you get us a copy of that study that was presented to the Board

4 in 1972?

MR. CALLAHAN: We have --

MR. HARSCH: You can go to the record and dig it up.

MR. ETTINGER: Perhaps.

HEARING OFFICER TIPSORD: I think perhaps that if you have

9 one available that would be appropriate for you to submit it.

MR. HARSCH: We have -- excuse me. It is -- do you have a

11 copy of it?

MR. CALLAHAN: I have a copy of the Streeter-Phelps equation

13 and the way in which it is applicated. I don't know that I

14 necessarily have a copy of his complete study that he presented

15 to the Board. It would be part of the Board's docket.

HEARING OFFICER TIPSORD: I understand that, but the Board's

17 docket now is on microfiche, which would make it very difficult

18 to pull out and copy a readable copy. So if we could get a copy

19 from someone who does have a hard copy, that would be very much

20 helpful here.

MR. ETTINGER: Okay. On page -- the second page of your

22 testimony, you say, after you discuss the Streeter-Phelps stream

23 reaeration equation, you say the Board concurred with Dr.

24 Pfeffer's contention and adopted a BOD effluent limit of ten

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1 milligrams per liter, contingent upon the downstream dissolved

2 oxygen level remaining adequate.

How is it you are understanding that the Board provided for

4 this contingency of the downstream dissolved oxygen level

5 remaining --

MR. CALLAHAN: That is what Dr. Pfeffer recommended.

MR. ETTINGER: Does it --

MR. CALLAHAN: The Board basically took Dr. Pfeffer at his

9 recommendation there. He indicated that unless there was some

10 extraordinary circumstances that would result in oxygen depletion

11 below the plant or below any point source outfall, that that

12 equation would be applicable. And that based upon that, that

13 BOD -- that a carbonaceous BOD of ten would be warranted. So

14 that's where the qualification comes in there about -- I think we

15 heard some of the things this morning that can lead to that,

16 sediment composition, or whatever else, those are things that are

17 far beyond the capability of --

MR. ETTINGER: I am sorry. I guess my question is you are

19 not suggesting, then, that there is any portion of the existing

20 rule that makes this limit contingent on the downstream dissolved

21 oxygen level remaining adequate?

MR. CALLAHAN: Not the current rule, because it was my

23 understanding that there was a matter before the Board in the

24 late 1970s or the early 1980s where this was completely adopted

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1 as state-wide zero low flow stream limits of 10 and 12, and that

2 was based upon the successful application of the Streeter-Phelps

3 equation from the 1971 proceeding.

MR. ETTINGER: Okay.

MR. CALLAHAN: In other words, it was a little bit of what

6 Bob was talking about this morning in terms of we don't have a

7 model. We have ten years of real world to work with, and it

8 seems to be appropriate.

MR. ETTINGER: So what is your understanding of how the

10 State assures that there will be DO compliance?

MR. CALLAHAN: Of how the State assures --

MR. ETTINGER: How the State assures that there will be

13 dissolved oxygen compliance?

MR. HARSCH: Can I answer that question?

MR. ETTINGER: Sure.

MR. HARSCH: The Board's rules were amended and took out the

17 Pfeffer exemption provision. There was the 4-5 exempt -- the 4-5

18 standard, you could apply the Pfeffer exemption, do the showing

19 using the Streeter-Phelps, and qualify then for the 10-12 rule by

20 going through doing the numerical calculation using the formula,

21 show that the DO values would be protected, and qualify for the

22 then 10-12 standard by going through the numerical calculations.

23 I think Bob presented that this morning, the calculation.

Subsequently, the rules were amended in the late 1970s and

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1 the 4-5 rule was changed, which Mike just testified to, and we

2 changed the rules and replaced it with the 10-12.

Is that your --

MR. CALLAHAN: Yes, right.

MR. HARSCH: -- understanding, Bob?

MR. MOSHER: Yes.

(Board Member Tristano entered the hearing room.)

MR. ETTINGER: Is it the IAWA's position that the

9 oxygenating affects of ammonia should be ignored in permit

10 writing?

MR. CALLAHAN: Well, Albert, I just said no. I said they

12 need to be considered, but this is not the venue in which they

13 need to be considered. This bothers me a little bit. Because

14 what we are doing is taking an industry that has required

15 investments of billions of dollars by the citizens of our State,

16 and suddenly we are trying to modify the way which we control and

17 direct this industry by something that was never intended to do

18 that.

MR. ETTINGER: Well --

MR. CALLAHAN: BOD has always been carbonaceous oxygen

21 demand as released into our waters. That is the way we have

22 always interpreted it.

MR. ETTINGER: Well, always interpreted it after 1986. If

24 you want to remit your --

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MR. CALLAHAN: I am sorry. I thought I was answering your

2 question.

MR. ETTINGER: No, you weren't. But let's just -- getting

4 back to this history, the permits did say BOD from 1972 to 1986;

5 did they not?

MR. CALLAHAN: Yes, they did.

MR. ETTINGER: And the rule says BOD, not CBOD, does it not?

MR. CALLAHAN: That's correct.

MR. ETTINGER: Okay. Thank you. Looking at the Board's

10 opinion, it also talks about that a 10-12 standard is

11 economically reasonable. Is that your position?

MR. CALLAHAN: I believe that -- it is readily attainable.

13 I think the industry has a very high compliance rate with that on

14 zero low flow streams across the State right now and it seems to

15 be done with moderately appropriate user fees and citizen tax

16 rates.

MR. ETTINGER: Okay. Is it your understanding that this

18 proposal is limited to permits in which there is an ammonia

19 limit?

MR. CALLAHAN: No.

MR. ETTINGER: Is it your understanding that this proposal

22 is limited to permits in which there is an ammonia limit of four

23 or less?

MR. CALLAHAN: No.

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MR. ETTINGER: Given that the vast number of permits, in

2 your view, are limited with an ammonia limit of four or less,

3 would you have any problem with writing this standard so that it

4 only applied to permits which had an ammonia limit of four or

5 less?

MR. CALLAHAN: I am not -- I don't understand your question.

7 Please repeat that.

MR. ETTINGER: Well, as I understand, your position is that

9 we don't really need to worry about ammonia in those cases as a

10 deoxygenating waste, because it is normally treated for toxicity

11 reasons such that you have a limit for ammonia of 1 to 4; is that

12 correct?

MR. CALLAHAN: Not exactly. What I am saying is that the

14 problem that results from ammonia right now is very, very small.

15 That its contribution to an ultimate oxygen demand is very, very

16 small. I subsequently said, with my ad-lib remarks at the end of

17 my testimony, that I think we need to take a look at ammonia.

18 But I think we need to do it in the venue of an appropriate

19 dissolved oxygen standard. We need to do it with consideration

20 of its nitrogen nutrient input. And we need to do it in

21 conjunction with phosphorus.

We are talking about a different realm of regulation here

23 than was originally intended in terms of measuring secondary and

24 tertiary treatment processes. I am not saying that we ignore

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1 ammonia at all. But what I am saying is that we stay with the

2 original intent of this regulation, which was to demonstrate an

3 adequate secondary treatment process by the facilities that we

4 have in the State.

MR. ETTINGER: Well, we will all read the opinion ourselves

6 and decide what the original intent of the rule was.

So my question, though, is does the IAWA think that NBOD

8 should be ignored in shaping effluent limits designed to protect

9 dissolved --

MR. CALLAHAN: I am sorry. I couldn't hear you.

MR. ETTINGER: Does the IAWA think that NBOD should be

12 ignored in shaping effluent limits designed to protect DO

13 standards?

MR. CALLAHAN: Well, I believe I just said that through the

15 venue of an appropriate DO standard and in conjunction with the

16 other diurnal oxygen demands that are placed upon a receiving

17 stream, yes, we should look at it that way. Not in terms of what

18 the original intent was, which was a measurement of secondary

19 treatment. You are asking me the same question, I think, that

20 you just asked me.

MR. ETTINGER: Okay. You are a student of this 1972

22 opinion. They, in fact, note in that opinion, don't they, that

23 the discharge of ammonia is causing dissolved oxygen problems at

24 that time, in 1972, in the Illinois River, right?

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MR. CALLAHAN: At that time I believe it probably was. We

2 didn't have anywhere near the sophistication we have placed

3 across the State right now. I don't know that you compare apples

4 and apples in that analogy.

MR. ETTINGER: Okay. Just one -- just a couple little

6 things here. Have you looked at any other states that have

7 regulations or worked to assure compliance with their dissolved

8 oxygen standards?

MR. CALLAHAN: No, I have not, Albert.

MR. ETTINGER: Okay. I have no further questions, Mr.

11 Callahan.

HEARING OFFICER TIPSORD: Okay. Are there any other

13 questions for Mr. Callahan?

Okay. Thank you very much, Mr. Callahan.

MR. CALLAHAN: Thank you.

HEARING OFFICER TIPSORD: Okay. We have one more testifier,

17 Mr. Falkner.

Mr. Falkner, you have not been previously sworn today, have

19 you?

MR. FALKNER: Yes, I was.

HEARING OFFICER TIPSORD: Okay. Thank you.

(Whereupon Mr. Falkner was previously sworn by the Notary

Public.)

MR. FALKNER: I appreciate your patience and the opportunity

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1 to speak. One thing I have to say, I have absolutely no history

2 here in the State of Illinois. I have been in the business for

3 over 25 years, however, I was working in Wisconsin. I do have an

4 operator's license and I have a Master's in biology.

You already have a copy of the brief letter that was

6 submitted to you. I really want to just highlight a few points

7 that have come up and that I think are important for you to be

8 aware of in understanding this challenge.

When it comes to carbonaceous BOD and nitrogen oxygen

10 demand, all this is is a test, a test where you wind up having a

11 sample of wastewater and it has bacteria present. And the

12 bacteria are going to wind up using oxygen, depending on what

13 waste or what materials are present in that bottle.

The thing that really has not been brought up is the fact

15 that this nitrogen oxygen demand really only occurs if the

16 treatment facility was growing nitro virus. Most treatment

17 facilities that are not required to remove nitrogen typically

18 will not have nitro virus present. Even if they do, they won't

19 have them present in significant numbers.

So as a result, when you run that test, the odds are just

21 as good that you are not going to have any nitrogen oxygen demand

22 as it will have a nitrogen oxygen demand. That's why they were

23 talking about that as being an interference with the test. It is

24 literally what was present for bacteria to run the test in the

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1 first place.

The other thing is -- and I don't want to be showing my

3 age. Back in the old days they used to say you could chlorinate

4 out your BOD. And when they talk about chlorinating out your

5 BOD, it never made sense to me, the way the biologists and

6 chemists say things. Until I realized what they were talking

7 about doing was they kill off the nitro virus in the final

8 effluent, so that the bottom line is that you don't have nitro

9 virus present in that sample bottle. It converts the ammonia to

10 nitrate, and then made the BOD go away. What I am trying to --

11 the point I am trying to get at is truly the only real reliable

12 performance measure is one that winds up taking the variability

13 out.

As far as showing performance of a facility or, you know,

15 this concern about the stream impacts, you are not measuring it

16 with this test. You have seasonal disinfection requirements. If

17 you are effectively disinfecting your effluent to kill off the

18 bacteria, the fecal coliforms, you killed off the nitro virus.

19 If the person running the facility understands this test, he

20 knows to go take bacteria from the very head part of the plant,

21 nothing -- that does not have any nitro virus, and save the

22 sample to make the test work. That person will come through with

23 a low value.

Someone that does not understand that will wind up taking a

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1 sample from another location and he is going to have a high

2 value, but the plant was running the same. I think that is

3 important for you to consider. I guess that is part of the

4 reason why I was supporting the carbonaceous BOD limit. It is

5 just a matter of do you have the bacteria present or not. It is

6 not a true indication of what is going to happen in that stream.

The other thing is I heard a comment, and it really kind of

8 bothered me, the idea that if you don't have a really tight limit

9 a treatment plant is going to wind up dumping more waste into the

10 stream. I defer to the IEPA staff, but I have got a feeling that

11 you could wind up having a data review that will highlight the

12 fact that typically treatment plants are way below standards.

In our treatment facility we have got a 20 milligram per

14 liter carbonaceous BOD limit and suspended solids limit. Up

15 until about three years ago our plant had an effluent

16 concentration of 5 to 6 milligrams per liter in both parameters.

17 By refining our operation, we are actually taking it down, for

18 carbonaceous BOD, to 3 or 4 milligrams per liter. So just

19 because, you know, there is the debate over these numbers, it is

20 more a debate. It is not a reality. The rest of this really

21 holds true. So I will shut up and hopefully we will get out of

22 here in a timely manner.

HEARING OFFICER TIPSORD: Thank you, Mr. Falkner. I will

24 just note for the record that the comment Mr. Falkner is speaking

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1 about has been entered in the docket as Public Comment Number 8.

Are there any questions for Mr. Falkner? Okay. Thank you

3 very much.

At this time, then, we will proceed with the Agency's

5 supplemental testimony.

MR. MOSHER: Okay. This testimony is in response to the

7 prefiled testimony of Cynthia Skrukrud. I have indicated which

8 of her topics I am going to be addressing by the Roman Numeral

9 from her testimony.

So for Roman Numeral one, the cyanide standard should be

11 protective of mussels and other sensitive species, we would like

12 to add this information to the record.

The Agency agrees that mussels are an important feature of

14 the native aquatic life community in Illinois and should be

15 protected by water quality standards, as should all other forms

16 of aquatic life. To the best of our knowledge, no toxicity tests

17 have been conducted on mussels using cyanide. Moreover, in the

18 science of aquatic life toxicity testing, studies on mussels are

19 not yet an established and reliable procedure.

Not only are data lacking on the affects of cyanide on

21 mussels, there is no approved methodology for conducting toxicity

22 tests on mussels. The USEPA has been experimenting with mussel

23 toxicity testing, but has not finished these investigations. The

24 USEPA does not require or endorse the use of mussel toxicity data

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1 at this time, other than the one study mentioned previously today

2 for nickel and zinc.

Even when such studies have been published, as USEPA

4 continues to study the issue, they have not used mussel data in

5 the derivation of a national water quality criteria for any

6 substance, to my knowledge. Should toxicity testing for mussels

7 become an approved and standardized process, the USEPA will

8 incorporate mussel data into national criteria and states will be

9 obliged to use mussel data in standards derivation.

When and if this occurs and if mussel data show that these

11 organisms are generally more sensitive than the body of species

12 already tested, states must update water quality standards to

13 reflect this new information. Until then, we must use the

14 approved data for the species that have been correctly tested and

15 conclude, as has been done repeatedly under the USEPA document

16 entitled, Guidelines for Deriving Numerical National Water

17 Quality Criteria for the Protection of Organisms and Their Uses,

18 that we are protecting all species when criteria are derived

19 using this procedure.

The IPCB rulemaking process has always been open to the

21 concept that new data may dictate that standards must be revised.

22 Of course, we are in that mode right now. Data on the cyanide

23 toxicity to native cool water fish is not present in the known

24 database. The previous explanation of how missing information

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1 must be dealt with applies to this situation also. We probably

2 should never expect that all species will be tested with all

3 substances.

Cool water adapted species, such as the sculpins, are

5 present in Illinois in very limited habitats, namely small

6 streams fed by springs. These streams are not now thought to

7 contain significant amounts of cyanide. Proposed new sources of

8 cyanide to these streams must be evaluated under the

9 antidegradation regulation. At such time the unique

10 circumstances presented by these unusual habitats will be

11 assessed, and it is very unlikely that new loadings of cyanide

12 would be allowed.

In reference to Roman Number two, zinc and nickel standards

14 should protect mussels. We had an earlier discussion about that,

15 but there is another facet in Ms. Skrukrud's testimony that I

16 need to address, and that entails the affects of total metals on

17 mussels that she mentions.

The mention of the affects of particulate metals on mussels

19 illuminates yet another aspect of potential aquatic life toxicity

20 affects that has yet to be documented with reliable information.

21 The Agency's proposal recommends that metals water quality

22 standards should be in the dissolved form because the USEPA and

23 the general consensus of the scientific community has endorsed

24 this approach.

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Dissolved metals standards better describe the protection

2 needs of aquatic life. If future research demonstrates that we

3 must go back to regulating total metals to protect mussels, we

4 will have to update the Board's standards yet again. Our

5 obligation is to adopt standards that are shown to be necessary

6 to protect aquatic life while being scientifically defendable.

In reference to Roman Numeral three, the use of the

8 conversion factor and metals translators should be clear.

We would like to add this. The Agency believes that it has

10 made the use of the conversion factors, as they are proposed in

11 the General Use water quality standards, exceedingly clear. Each

12 total metals standard has been assigned a USEPA derived

13 conversion factor. This has also been done for the new zinc and

14 nickel standards. Multiplying the total metals value, which is

15 currently the standard, by the conversion factor yields a

16 dissolved metals standard.

We are proposing this exactly as USEPA has intended. The

18 metals translator procedure is much more technical. When a

19 dissolved metal water quality standard is to be used as a permit

20 limit, it must be translated into the amount of total metal that

21 has been shown to yield the protective amount of dissolved metal

22 in streams or lakes. This is simply the reciprocal of the

23 conversion factor unless site-specific data say otherwise. If

24 dischargers desire to pursue the site-specific factor route, they

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1 will follow the USEPA metals translator guidelines.

The Agency intends to adopt rules that would further guide

3 our permitting responsibilities regarding the metals translator.

4 In addition to a few short instructions consisting generally of

5 sample frequency and location requirements, the Agency rule will

6 defer to the USEPA guidance on this subject.

And that concludes my additional testimony.

HEARING OFFICER TIPSORD: Are there any questions?

MR. ETTINGER: I don't think so.

HEARING OFFICER TIPSORD: Okay. Thank you very much, Mr.

11 Mosher.

Now at this time, Mr. Messina, did you want to --

MR. MESSINA: Yes, please. Thank you. My name is Alec

14 Messina. I represent the Illinois Environmental Regulatory Group

15 and the Illinois Chamber of Commerce. And we would like to

16 request that the Board hold a third hearing in this matter.

Actually, we were contacted yesterday by two of our members

18 who had some concerns with some of the calculations, and we have

19 since asked all of our members to crunch the numbers with regard

20 to these calculations. And we have been in contact with the

21 Agency and they are committed to helping us assist our members in

22 working through these calculations and making sure that we

23 actually have a proper understanding of how they do, indeed,

24 work.

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We think that a third hearing would allow us time to work

2 through these calculations and make sure we do, indeed, have a

3 correct understanding of how this proposal will work, and, if

4 necessary, will allow us to supplement the record with our

5 position if that would, indeed, change.

HEARING OFFICER TIPSORD: Mr. Harsch?

MR. HARSCH: With all due respect, there are number of

8 municipalities that are impacted by these rules, as you have

9 heard from the Galesburg Sanitary District, that are impacted by

10 these rules that are presently compliance issues. We would hope

11 that this Board could move these rules quickly along towards

12 adoption.

We have had two exhaustive full days of hearing. All the

14 issues appear to be resolved. And if there are questions

15 concerning the calculations, that you could get with the Agency

16 and resolve those questions of the calculations and answer those

17 questions regarding the calculations and hopefully avoid any need

18 for a third day of hearing.

MR. MESSINA: We would certainly like to be able to do that.

20 But I would have to disagree, that all issues have not been

21 resolved. I think we have heard from the various parties today

22 that they will be presenting additional information, have

23 additional information to present. We do have some outstanding

24 issues that perhaps have not been resolved. That's why we have

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1 requested the third hearing.

MR. ETTINGER: As it is so often the case --

HEARING OFFICER TIPSORD: Excuse me. I am sorry. Mr.

4 Harsch had something else to say.

MR. HARSCH: If there is a need for a third -- if there is

6 actually a need for that after you have had a chance to get back

7 then you could ask for -- present that need, after you have had

8 an opportunity then to discuss with the Agency. I am not --

9 obviously, I am not saying to forgo the absolute need for that

10 hearing.

But after you have had a chance to go over the calculations

12 with your members and sit down with the Agency, possibly with the

13 calculations, and go over the calculations with the Agency and

14 then present that request to the Agency -- or to the Board -- for

15 a third day of hearing.

But to schedule it now after we have seemed to have gotten

17 through everything -- from what I have seen, it looks like we are

18 actually through everything. I just don't see, at this point,

19 any loose ends right now that would require an additional day of

20 hearing.

Obviously, you may come up with something that would

22 mandate and require a hearing. I don't mean to foreclose on

23 behalf of IERG or the State Chamber if there truly is an issue.

24 But hopefully you could resolve that with the Agency and that

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1 there would not be the need for another hearing.

HEARING OFFICER TIPSORD: Mr. Ettinger.

MR. ETTINGER: Oh, come on. I mean, what we have got here

4 is we have got a new set -- we have had a new proposal every time

5 we hold a hearing. We just doubled the cyanide limits from the

6 last proposal. We have just changed the BOD proposal again.

7 They promised us at the last hearing that they were going to have

8 these implementation rules. They announced this morning that

9 they don't have the implementation rules. It is fairly obvious

10 that we have not had time to consider the proposal because we are

11 shooting at a moving target and we never know what information we

12 have got.

This has been a good discussion. I think we have brought

14 out a lot of facts. We have learned what reports we need to find

15 and what we need to come back with at the third hearing. But to

16 say that this has all been resolved, it is much less resolved

17 than in the average hearing in which we at least have the final

18 proposal months or weeks before the hearing day. And I hope that

19 they will commit to at least at the next hearing not coming in

20 and, you know, doubling the cyanide standard again and coming up

21 with some new BOD rule.

And, furthermore, that they -- the other problem is I

23 really believe that the Agency should come forward, as they have

24 with the GLI proceedings and the antideg proceedings and give the

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1 Board some idea of how that is going to be implemented.

I am, frankly, sympathetic, however, to Mr. Harsch's

3 problem, with some of his clients having some compliance

4 problems. I think that's with regard to the metals; is that

5 true? Or is there -- are there other things there? Is it just

6 on the dissolved versus total? Is that the issue?

MR. HARSCH: I think the whole issue has to do with the

8 metal translator issues.

MR. ETTINGER: I mean, I would be ready to explore whether

10 there -- and I believe it was proposed by the Counsel who does

11 represent the Galesburg Sanitary District -- whether there is a

12 way to cut part of this proceeding out to put that on a faster

13 track. The other thing is -- although, once again, because they

14 don't have the rules forward. Finally, though, I don't think it

15 is like Galesburg is going to be sued and all of their operators

16 are going to be sent to jail if you guys take an extra month and

17 get the data right.

MR. MOSHER: We need to address those recent comments. We

19 have submitted an Errata Sheet that updates very slightly several

20 of our proposed regulations. We have proposed it in answer to

21 questions, some of which were posed by Mr. Ettinger.

We have not doubled our original proposal for cyanide. We

23 have increased it from 9.9 micrograms per liter to 11 --

MR. ETTINGER: Well, why does it go --

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MR. MOSHER: -- micrograms per liter.

MR. ETTINGER: -- from 22 to 49?

MR. MOSHER: That was our original proposal.

MR. ETTINGER: Okay. I am sorry. I stand corrected.

MR. MOSHER: What else I want to say here is that despite

6 some of the input, we looked at this proposal as rules that were

7 very orthodox, very much in keeping with what USEPA wants states

8 to do across the nation, in keeping with federal regulations for

9 BOD. And we told people that we didn't have -- we didn't

10 anticipate great controversies in this rulemaking.

I think controversies are being created where they don't

12 belong. This is very orthodox stuff. We have gone to great

13 lengths to supply information. And there is no moving target for

14 what we have proposed as Board regulations.

We believe USEPA is in agreement with what we have

16 proposed, that they will give federal approval to these new

17 standards as we have proposed, and we are here right now to

18 answer questions about implementation as far as we can, and there

19 haven't been many thus far. But we are here to answer them right

20 now.

HEARING OFFICER TIPSORD: Well, I would just note, in

22 fairness to the lack of questions on implementation, we were

23 expecting to receive the implementation rules at this hearing. I

24 think given that, it would have been a little hard for us to

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1 prepare for questions about how you might implement these rules.

You know what, I think I need to take a break, because I

3 think I need to consult with the Board Members involved. Then we

4 will go back on the record in about ten minutes.

(Whereupon a short recess was taken.)

HEARING OFFICER TIPSORD: Okay. We can go back on the

7 record now.

Given that there is some disagreement about whether or not

9 there is need for a third hearing, I am not going to rule on the

10 decision of whether or not we should hold a third hearing. What

11 I am going to do is this is not an expedited transcript. So I

12 believe that is ten working days, eight working days. So it will

13 be about two weeks before the transcript comes in.

I am going to keep the public comment period open for 30

15 days after the transcript comes in. During that time, if anyone

16 would like to ask or request a third hearing, they should file

17 that motion with the Board.

In addition, I would like to strongly urge the Agency to

19 provide the Board with even a draft of your implementation

20 procedures. Given the history in the area of water, where the

21 implementation procedures have been placed in Board rules, based

22 on requests from both industry and environmental groups, I think

23 it is very important that the Board view the implementation

24 procedures prior to going to first notice. So I really urge you

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1 to get us even a draft, and that we would understand that it

2 would be a draft.

Are there any questions? I will do a written Hearing

4 Officer Order after the transcript comes in setting the specific

5 date for the close of public comment. And, again, anyone who

6 would like to request a third hearing at that time may do so.

7 And we will let the Board make the decision about whether or not

8 there should be a third hearing.

Is there anything else? Okay. Thank you all, again, for

10 your attention. I appreciate it. We are adjourned.

(Whereupon, the hearing concluded at

approximately 3:15 p.m. The hearing

exhibits were retained by Hearing Officer

Marie Tipsord.)

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1 STATE OF ILLINOIS )

) SS

2 COUNTY OF MONTGOMERY)

C E R T I F I C A T E

I, DARLENE M. NIEMEYER, a Notary Public in and for the

6 County of Montgomery, State of Illinois, DO HEREBY CERTIFY that

7 the foregoing 150 pages comprise a true, complete and correct

8 transcript of the proceedings held on the 6th of March A.D.,

9 2002, at 600 South Second Street, Springfield, Illinois, IN THE

10 MATTER OF: WATER QUALITY TRIENNIAL REVIEW: AMENDMENTS TO 35 Ill.

11 Adm. Code 302.208(e)-(g), 302.504(a), 302.575(d), 303.444,

12 309.141(h); and PROPOSED 35 Ill. Adm Code 301.267, 301.313,

13 301.413, 304.120, and 309.157, in proceedings held before Hearing

14 Officer Marie Tipsord, and recorded in machine shorthand by me.

IN WITNESS WHEREOF I have hereunto set my hand and affixed

16 my Notarial Seal this 14th day of March A.D., 2002.

Notary Public and

Certified Shorthand Reporter and

Registered Professional Reporter

CSR License No. 084-003677

24 My Commission Expires: 03-02-2003

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