Microsoft Word - 8-25-05 POLLUTION CONTROL

ILLINOIS POLLUTION CONTROL BOARD

November 3, 2005

NOV 032005

INTHEMATTEROF:

)

STATE

OF ILLINuS

)

Pollution Control Board

PROPOSED AMENDMENTS TO

)

R04-25

DISSOLVED OXYGEN STANDARD 35 ILL.)

(Rulemaking

Water)

ADM. CODE 302.206

)

HEARING

OFFICER ORDER

This order addresses two motions. In one motion, the Illinois Environmental Protection

Agency (Agency) asks the hearing officer to require the filing ofan additional status report in this

rulemaking. In the other motion, a witness requests corrections to the transcript ofthe

August 25, 2005 hearing. As described below, the hearing officer grants both motions.

On October 28, 2005, the Agency filed a status report pursuant to the hearing officer’s

order ofAugust 30, 2005. In its status report, the Agency states that since the August 25, 2005

hearing, the third hearing in this rulemaking, the Agency has been meeting with the Illinois

Department of Natural Resources (DNR). Specifically, the status report explains that the Agency

and DNR have been working to “develop a state position conceming Illinois’ current dissolved

oxygen standard” and discussing “the development of an interim tiered approach for dissolved

oxygen.” Report at 1.

A stakeholder meeting was held on October 19, 2005, attended by representatives ofthe

Agency, DNR, the United States Environmental Protection Agency, the Illinois Association of

Wastewater Agencies (the proponent ofthis rulemaking), the Illinois Environmental Regulatory

Group, Sierra Club, Prairie Rivers Network, Friends ofthe Chicago River, and Midwest

Generation. Another stakeholder meeting is scheduled for November 15, 2005. Report at 1-2.

The status report states that the Agency and DNIR are “hopeful that in the near future the

supplemental assessment activities currently being undertaken will be completed, the results

evaluated and a position developed that both Illinois EPA and IDNR can support with

confidence.”

Id.

at 2.

The Agency asks that the hearing officer require the filing of another status report by

November 30, 2005, in which the Agency would “explain the progress to date, the status of

stakeholder discussions and possible meetings and

.. .

include ifappropriate the suggested

dates for a fourth hearing.” Report at 2. There has been no response filed to this Agency motion.

The hearing officer grants the Agency’s motion. Accordingly, the Agency must file a second

status report by November 30, 2005. This filing may be made electronically through the Board’s

Web-based Clerk’s Office On-Line (COOL) at www.ipcb.state.il.us. Any filing with the Board

must also be served on the hearing officer and on those persons on the Service List.

The second motion ruled upon in this order was filed on September 8, 2005, by a witness

who testified at the August

25,

2005 hearing, Dr. Thomas J. Murphy. Dr. Murphy asks that

numerous corrections be made to the third hearing’s transcript concerning his testimony.

Section 101.604 ofthe Board’s procedural rules

(35

III. Adm. Code 101.604) allows any

witness to “file a motion with the hearing officer to correct the transcript within 21 days after

receipt of the transcript in the Clerk’s Office.” Because the Clerk’s Office received the third

hearing’s transcript on September 6, 2005, Dr. Murphy’s motion is timely. No response to Dr.

Murphy’s motion has been filed.

The hearing officer grants Dr. Murphy’s motion. To avoid any potential confusion, the

R04-25 docket sheet entry for the August

25,

2005 hearing transcript will reflect that the hearing

officer granted Dr. Murphy’s motion to correct. For further clarity, the Clerk’s Office has been

instructed to physically and electronically attach this hearing officer order and Dr. Murphy’s

motion (with the transcript corrections) to the front ofthe August 25, 2005 hearing transcript.

IT IS SO ORDERED.

Richard R. McGill~Jr.

Hearing Officer

Illinois Pollution Control Board

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

(312) 814-6983 rncgillr@ipcb.state.il.us

8 September 2005

Richard R. McGill

Illinois Pollution Control Board

R04-25 Hearing Officer

Mr. McGill:

I would like to request that the following corrections be made to my testimony. If these corrections need

to be directed to another person or office, please let me know.

Thomas J. Murphy, Ph. D.

773-338-3165

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 8, 2005

Corrections to Thomas Murphy’s testimony; R04-25, 25 Aug 05

Line #

—

Change

0185-17

shared

chaired

0185-22

general

Journal of

research

Research

0185-24

4wt

their

01 86-18

concentration-> concentrations

0187-4

1986->1996

0187-9

microinvertebrates

macroinvertebrates

01 87-11

fueled

field

0188-6

insert ‘or’ after ‘saturation’

0188-17

with ->at

0188-20

The--> For

0188-21

at the

0189-6

liability-> reliability

0189-12

filing-> fouling

0189-20

[Begin a new paragraph with, “In interpreting

...“]

0189-22

[For clarity, drop the ‘DO’ and the commas]

0189-24

when interpreted is

was interpreted as

0 190-7

to get the

with simultaneous

0190-9,10

The other

...

is to

Was there other quality assurance information to

0190-14

latter

-->

laminar

0190-14,16

So the positioning

...

get very

So that the relative positioning ofthe sensor can

give very

01 90-18

outliars

outliers

0190-19

often

can

to systems.

into system functioning.

0190-20

there’s good reason

0190-22

outliars

outliers

0191-2

deserved

0191-17

wi4->in

0191-22__— Insert a comma and the words, ‘thermal inputs,’ after the word channelization

0191-24

effected

affected

0192-18

outliars

outliers

0192-19

very, very-> very, very, very

0192-20

and

are

are ->and

Corrections to Thomas Murphy’s testimony; R04-25, 25 Aug 05

0192-22

verified-> unverified

0192-23

to ->of

0195-7

beautification

eutrophication

0195-10

to beg straight-> on atmospheric

0195-24

has

0197-20

or when there’s a

well,

0197-21

anyway,

0197-22

[delete entire line]

0197-24

chemical

chemical measurements.

0197-24 to

0198-3

[There was a brief exchange with Dr. Garvey that only remnants are present here.

The gist ofthe discussion was that the continuous DO measurements are more

useful and desirable, but it is more difficult to get reliable data from them. I think

this discussion should be present in the record in some manner.

Perhaps replace 0197-24 to 0198-3 with:

There are many advantages to the use ofcontinuous DO measurements. However,

it is much more difficult to obtain reliable data from them so one must be much

more careful in using data from them.

0199-7

in any-> demanding

0201-7

you’re measuring

you measure chemically.

0202-1

desatunte

be saturated

0202-7

0202-12

give a little saturation

do a little_calculation

0001

ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO )

6 DISSOLVED OXYGEN

)

STANDARD 35 ILL. ADM.

)

7 CODE 302.206,

) No. R04-25

) (Rulemaking - Water)

TRANSCRIPT OF THE PROCEEDINGS held in

12 the above entitled cause before Hearing Officer

13 Richard R. McGill, Jr., called by the Illinois

14 Pollution Control Board, pursuant to notice, taken

15 before Julia A. Bauer, CSR, RPR, a notary public

16 within and for the County of Will and State of

17 Illinois, at 160 North LaSalle Street, Suite N505,

18 Chicago, Illinois, on the 25th day of August, A.D.,

19 2005, scheduled to commence at 10:30 a.m.,

20 commencing at 10:45 a.m.

0002

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

GARDNER, CARTON & DOUGLAS,

191 North Wacker Drive

Suite 3700

Chicago, Illinois 60606-1698

(312) 569 - 1441

BY: MR. ROY M. HARSCH

Appeared on behalf of IAWA;

ENVIRONMENTAL LAW & POLICY CENTER,

35 East Wacker Drive

Suite 1300

Chicago, Illinois 60601

BY: MR. ALBERT ETTINGER

Appeared on behalf of Prairie Rivers

Network and Sierra Club;

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 North Grand Avenue

East P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782 - 9807

BY: MS. DEBORAH J. WILLIAMS

MS. STEFANIE N. DIERS

Appeared on behalf of the IEPA;

ILLINOIS POLLUTION CONTROL BOARD

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

MR. RICHARD R. McGILL, JR., Hearing Officer

MS. ANDREA S. MOORE, Board Member

MR. G. TANNER GIRARD, Ph.D., Board Member

MR. THOMAS E. JOHNSON, Board Member

MR. ANAND RAO, Senior Environmental

Scientist

MS. ALISA LIU, P.E. Environmental Scientist

0003

HEARING OFFICER: Good morning. I'd

like to welcome you all to this Illinois

Pollution Control Board hearing. My name is

Richard McGill, and I am the hearing officer

in this rule-making proceeding. The

rule-making is entitled proposed amendments

to dissolved oxygen standard 35 Illinois

administrative code 302.206. The docket

number for this rule-making is R04-25.

The Board received this

rule-making proposal on April 19, 2004 from

the Illinois Association of Wastewater

Agencies or IAWA. In May 2004, the Board

accepted this proposal for hearing. IAWA

seeks to amend the board's rule establishing

general use water quality standards for

dissolved oxygen.

Also present today on behalf of

the Board to my immediate left Board member

Andrea Moore, the lead Board member for this

rule-making. To her left Board member Tanner

Girard, and to his left Board member Tom

Johnson. To my right are two members of our

technical unit. To my immediate right Anand

0004

Rao, and to his right Alisa Liu.

Would any of the Board members

present like to make any statement at this

time? I guess my welcome covered it. All

right. This is the third hearing in this

rule-making, and presently no additional

hearings are scheduled. Because it's been a

long time since our last hearing, I'm just

going to briefly provide some procedural

background before we begin testimony.

The Board held the first hearing

in this rule-making in June 2004 in Chicago.

The second hearing was in August 2004 in

Springfield. Those first two hearings were

devoted primarily to IAWA's witnesses,

presentation by IAWAs proposals and questions

for those IAWA witnesses. At the conclusion

of the second hearing, the participants asked

me to conduct a status conference call in

one month rather than proceed to schedule a

third hearing at that time. As requested and

after providing notice, I conducted that

status conference call in mid-September 2004.

As requested by the participants, I continued

0005

to conduct status conference calls in the

same manner on a monthly basis through

December 2004.

During each call, the participants

would report on the status of the stakeholder

discussions, indicated they were not yet

prepared to proceed with the third hearing

and asked me to conduct another status

conference call in a month. During the

December call, the participants asked that I

require IAWA to file a written status report

a month later instead of having another

status conference call.

So IAWA filed a report in

January 2005, and as IAWA requested, they

continued to provide monthly status reports

on the progress of stakeholder discussions.

IAWA continued to file those status reports

through May of 2005, and in its May 31, 2005

status report, IAWA indicated that based on

discussions of May 4, 2005 stake holder

meeting, it was generally agreed that the

rule-making should proceed with the third

hearing. So on June 3rd, I issued a hearing

0006

officer order scheduling today's hearing. It

was at the participants request that the

Board has allowed the unusual procedural

steps of conducting status conferences and

receiving written status reports in a

rule-making.

To accommodate the participants

request and to give stake holders every

opportunity to assess additional data and to

work through the issues, the Board has kept

the rule-making docket open for over a year

since the last hearing. The Board hopes to

hear today -- expects to hear today from each

of the main participants in this rule-making

on where they believe the stakeholder

discussions currently stand and where they

expect the rule-making to go from here.

Today's proceeding will be

governed by the board's procedural rules.

All information that is relevant and not

repetitious or privileged will be admitted

into the record.

We've had some discussion --

procedural discussion off the record before

0007

we got started today. My original plan would

be to begin with the prefiled testimony, as

indicated in my June 3rd hearing officer

order. We've received prefiled testimony by

the August 4 deadline from IAWA, the

Department of National Resources or DNR,

Friends of the Chicago River and Dr. Thomas

Murphy of DePaul University. I learned

earlier this morning that the Illinois

Environmental Protection Agencies, Toby

Frevert, will have testimony to provide today

and some of the participants have indicated

that they may want Mr. Frevert to give his

testimony earlier in the proceedings than my

hearing officer order had otherwise

contemplated. So we're going to start off

with the IAWA as a rule-making component, and

then if it makes sense and there's no

compelling objection, we may go a little out

of order on the prefiled testimony.

Those who did prefile, I would ask

that they give a summary of their prefiled

testimony to save time as opposed to reading

it in its entirety.

0008

After we finish with questions, we

will ask anyone else if they would like to

testify. We have a sign-up sheet just inside

the door to my left for anyone who would like

to sign up to testify today, time permitting,

we'll allow that. Those who testify will be

sworn in and may be asked questions about

their testimony, like any witness today. I

would have you note that there is an

attendance sheet if you would like to sign up

to indicate your attendance here today.

I would also ask that for the

court reporter transcribing this proceeding,

if you could speak up, try to speak slowly

and clearly and not talk over one another so

we can help produce a clear transcript.

At this point, we'll see how

quickly things move along, but if we go into

the afternoon, as I suspect we might, we'll

take a lunch break at around 1:00 for an hour

and start again promptly at 2:00. Are there

any questions about the procedures we'll be

following today? Seeing not, I would ask

that the court reporter please swear in

0009

IAWA's witnesses and attorney collectively?

(Witnesses sworn.)

HEARING OFFICER: And now I would ask

IAWA's attorney Roy Harsch to begin the

rule-making of proponents presentation.

MR. HARSCH: Thank you very much. My

name is Roy Harsch. I'm at the law firm of

Gardner, Carton and Douglas, and I've had the

honor of representing the Illinois

Association of Wastewater Agencies and a

number of the rule-makings before the

Pollution Control Board, including the

present rule-making, which is an extremely

important rule-making for IAWA.

I guess by way of background, the

hearing officer has gone forward and

presented the procedural steps that have

occurred since the last hearing in August

over a year ago. We do recognize and thank

the Board that this has been somewhat of an

extraordinary process. I think it's safe to

say that the Illinois Association of

Wastewater Agencies felt very strongly that,

in essence, the stakeholder process and the

0010

rule-making process itself was somewhat

compromised in the second hearing. We felt

somewhat blindsided by some events that

occurred during that hearing, and we were

hopeful that in the time period that would

progress after that hearing, that we would be

able to work with full participation of all

of the various stakeholders, and hopefully

develop a position, if not agreement, in a

position through the stakeholder process

where we would greatly eliminate the areas of

controversy between the parties.

At this point in time, I would

like to thank all of those people who fully

participated in that process. In addition to

the attorneys of record from Illinois EPA, we

had cooperation and participation from Marcia

Willhite, Toby Frevert, Bob Mosher, Paul

Terrio, Gregg Good, Roy Smogor and others.

They spent countless hours responding to

positions and developing information to

attempt to move the stakeholder process

forward at a time when their resources are

diminished, and they had a lot of other

0011

things on their plate as well. At IDNR,

Scott Stuewe led the discussions, Jim Mick,

Steve Poll and others, fully participated

during that process. Again, we thank them

for their input, negotiating, discussing the

issues that were raised. From USEPA, we had

representatives, Mr. Hammer was there most of

the meetings, if not alternatives, from

Sierra Club Cindy Skrukud. Prairie Rivers

Beth Wentzel.

During that time period, we had

representatives at some of the meetings from

the Illinois Environmental Regulatory Group,

Farm Bureau, Home Builders, et cetera. There

were literally thousands and thousands of

hours, if you added them up, attending

stakeholder meetings and in private

discussions -- follow-up discussions that

would occur, for example, between Dr. Garvey

and Scott Stuewe, Bob Mosher and IEPA.

IAWA has been a participant in

numerous rule-makings and has welcomed the

development of the stakeholder process as a

means to resolve and move regulatory efforts

0012

forward in a less confrontational manner. We

are very concerned, however, in this

proceeding, and frankly, very confused by

what seems to be involving this morning.

Based on the state of the

proceedings before the Board as of yesterday

and this morning, IAWA was very concerned

that the stakeholder process in Illinois may

be very jeopardized, and in fact, a process

that really is not going to lead to

resolution of regulatory development

proposals before the Board. I've had

discussions regarding our concerns with

representatives from the Illinois

Environmental Regulatory Group, the Illinois

Wastewater Operators Association,

professional consulting engineering groups,

the Illinois Farm Bureau and major statewide

environmental organizations. The response

from many of those who have been monitoring

the proceedings or been an active participant

ranges from agreement that the stakeholder

process may be in jeopardy to understanding

how we may have that belief.

0013

I guess I failed to mention the

Home Builders Association also in that group.

It is my understanding -- first

off, we are prepared to present the testimony

of Dennis Streicher, further testimony today

that's been prefiled, and that of Dr. Jim

Garvey, and I have copies of the prefile

testimony that I'd like to offer at this

point in time as an exhibit, marked for an

exhibit, and that exhibit number would be?

HEARING OFFICER: Fourteen.

MR. HARSCH: Fourteen. When we

prefiled the testimony, we did not have color

copies of Exhibit 3. I have extra copies of

those if anyone has a prefiled testimony and

needs those, and here are complete sets if

anybody needs a copy of Exhibit 14.

Before we proceed, I would like to

recommend, I guess, given what has transpired

as the hearing officer has referenced it,

it's our understanding that while we had

hoped when we filed our status report in May

of 2005 that we were at a position where IDNR

and IEPA would soon be able to reach

0014

resolution as to a joint state position and

response for our rule-making, or at least

have a position where IDNR could make a

resource agency recommendation to IEPA, and

IEPA then would be free to make up its own

mind and come forth with the state position.

That has not occurred today, but yet, we were

told -- I've read Toby Frevert's prefiled

testimony, that the agency is very hopeful in

continuing to work with IDNR, and it's also

my understanding that IDNR may, in fact, not

be presenting their witness today. So at

this point in time I might suggest that we go

out of order rather than presenting my two

witnesses first. That way we'll have

Mr. Frevert present his small, short

statement on behalf of the Illinois EPA, find

out what DNR, in fact, claims to do, and that

may simplify today's proceedings. We are --

just frankly we're very confused.

HEARING OFFICER: Well, we've got a

motion to enter the prefiled testimony with

the included attachment pending. I'm just

going to hold off on that until we get to

0015

your witnesses.

MR. HARSCH: Fine.

HEARING OFFICER: And just to clarify,

Mr. Frevert did not prefile testimony, but

has a written statement that he will present

this morning as testimony. Is there any

objection to proceeding at this point in time

with IEPA's presentation, and then -- well,

let me just ask that, is there any objection

at this point in time to proceeding with

IEPA's witness? Seeing no objection, I think

it makes sense then, every one seems to think

this will make today's proceeding more

understandable if we go ahead with Toby

Frevert's testimony.

So I would ask that Mr. Frevert of

IEPA, if you don't mind coming up so we can

hear you and the court reporter can get your

testimony more easily. Thank you.

THE WITNESS: Before you swear me in,

I just want to let everybody know that I'll

do my best to because I don't naturally have

a loud voice. So I apologize if you have

trouble hearing me.

0016

HEARING OFFICER: Thanks. If you go

ahead and swear in Mr. Frevert.

(Witness sworn.)

HEARING OFFICER: Thanks. Go ahead.

MR. FREVERT: Yeah, I'm going to read

from a written statement I've developed in

recent days to basically bring everybody up

to speed on what the agency's position and

functions and activities have been. My name

is the Toby Frevert. I'm manager of the

Division of the Water Pollution Control for

the Illinois Environmental Protection Agency.

I, as well as some of my staff have

participated in previous hearings on this

matter, including prior testimony.

The first point I want to cover in

this testimony is to reiterate the general

perspective I offered at previous hearings.

I believe the current dissolved oxygen

standard is overly simplistic, outdated and

not serving the state well. In that regard,

I agree with the Illinois Association of

Wastewater Agencies' perspective. The

comments of Dave Thomas on behalf of the

0017

Illinois Department of Natural Resources

focus on the variability of streams and their

aquatic communities across Illinois. This

variability is even more pronounced as you

consider lakes, reservoirs, wetlands and

other surface water bodies for which the

dissolved oxygen standard applies. I agree

with Dr. Thomas' perspective that reflection

of this variation in oxygen sensitivity

should be reflected in the state standard,

probably through a classification or grouping

system even if it is as simple as a two-tier

system. The United States Environmental

Protection Agency has been encouraging states

to move toward a multiple aquatic life

approach to standards as well. Numerous

activities are underway to help us evolve in

that direction, but a full restructuring of

Illinois water quality standards takes

considerable time, even if optimistic

estimate is several.

The second point I want to make

again takes us back to some prior testimony.

At a prior hearing, I offered my opinion that

0018

Illinois' general use dissolved oxygen

standards carries more significance than many

of our other water quality standards and

there is a wide diversity of opinion,

perspective and attitude among the various

constituencies participating in this

proceeding. In an effort to address that

diversity in a more constructive and

efficient manner, I suggested that further

Board activities be deferred a short time to

allow the parties to explore possible areas

of mutual support where consensus could be

reached and more clearly characterized and

articulate their position to the Board on

those issues where consensus cannot be

reached. I further offered the services of

myself and the agency to facilitate those

discussions. As history shows, the Board

accommodated that recommendation, and I am

truly appreciative for that opportunity.

While virtually any and all

interested parties were welcome and indeed

participated in the various proceedings and

discussions that took place during the past

0019

year, the more active participants were IAWA,

the Association of Wastewater Agencies and

IDNR, Department of Natural Resources

technical staff. Toward the late spring and

early summer of this year, I was encouraged

that we had accomplished significant progress

and partial agreement on most but not all of

the critical points of discussion. As we

neared the prefiling date established by the

hearing officer, those agreements appeared to

be in jeopardy and the Illinois Environmental

Protection Agency has continued in

discussions with various parties through this

week. As a result, I was unable to honor the

prefiling date.

I'll add something to this written

statement here. I'll had drafted prefiling

testimony early and decided that it was not

appropriate to enter it for the prefiling

date. So that's why you didn't receive that.

We truly attempted to honor your request.

Lacking agreement among the

parties at this stage, I nonetheless do not

believe that hope for agreement is lost.

0020

Therefore, I'm asking for one more

opportunity to resolve or at least further

reduce points of contention between the

various participants. In furtherance of that

desire, I am refraining from offering any

specific agency recommendation today. I do,

however, recommend against abandonment or

dismissal of the petition. We collectively

know enough to make a significant improvement

to Illinois' existing dissolved oxygen

standard. We will never reach a condition of

perfect understanding of dissolved science to

have a perfect standard. That reality is

fully acknowledged in section 303(c)(1) of

the Clean Water Act, which requires states to

undergo periodic and continuing review and

updates to water quality standards.

The Illinois EPA and myself

personally are committed to assist the Board

in building a complete record to support a

proper disposition in this proceeding after

the agency has an opportunity to consult

further with others. Illinois EPA fully

intends to enter additional testimony, data

0021

and specific recommendation at a later date.

Finally, I would like to thank the

Board for the opportunity to submit this

statement today.

HEARING OFFICER: Thank you. At this

point, I'll open it up for any questions of

this witness. I'll -- the Board may have a

question or two, but I'll open it up first to

the --

MS. WILLIAMS: Mr. Hearing Officer, if

you're going to open up questions, can we

arrange to sit up at the front table?

HEARING OFFICER: Sure. Let's go off

the record for a moment while IEPA's

attorneys come up and join their witness.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER: Again, I would ask

if any member of the audience has any

questions for IEPA's witness? Seeing none,

I'll look up here at the Board members and

Board staff present, any questions from any

of the Board members?

0022

1 BY MR. GIRARD:

Q. Well, I don't mean to put you on the

3 spot, Toby, but --

A. Sure you do.

Q. -- you say there's not agreement among

6 the parties at this stage, but at this stage, can

7 you give us a thumbnail sketch of the areas of

8 disagreement?

A. I can try to do that. Some of the

10 major areas of discussion involved the need and the

11 wisdom of having multiple sets of standards for

12 multiple types and degrees of quality systems or

13 quality waters. A lot of the discussion focused on

14 the national criteria document, which in and of

15 itself is not a perfect document, but may be the

16 most publically aired and the most well discussed

17 guidance there is out there for this matter. A lot

18 of discussion about some of the flexibilities and

19 options available to states in that criteria

20 document was the focus of those discussions. Those

21 are the general terms.

In getting to working through the

23 stakeholders process, I think there was a fair

24 amount of maybe cross education and opportunity to

0023

1 perceive the perspective or the views of the

2 inherent nature of the various participants, and I

3 thought there was movement on all sides towards some

4 kind of a middle grounding understanding

5 ramifications and applications. I still think

6 that's the case, but lacking perhaps 100 percent

7 comfort level at certain points, some of the parties

8 perhaps fell back to the prior positions that maybe

9 aren't fully reflective of what they'd ideally like

10 things to be, but lacking the consensus, people

11 typically pull back. I think a little more time and

12 some of what we actually accomplished, and I

13 personally think we did accomplish something, we can

14 refocus on that and put it in a clear perspective,

15 and I and the rest of the staff and my agency and my

16 leadership believes there is hope to reach some

17 consensus here, and if not all consensus, at least

18 enough that the points we really have to focus hard

19 and fast testimony on may be more clearly

20 identified.

Q. Well, you said you're going to need

22 more time. How much time? You've been at it a

23 year.

A. I anticipated that question. I

0024

1 anticipated that question perhaps the minute I

2 decided and concluded that we as the agency should

3 recommend this is the best course of action for the

4 State of Illinois. In those considerations, I can't

5 give you an exact answer today. I spent many hours

6 thinking about it. I think the reality is it should

7 go faster, and we may be willing to play more of a

8 role in helping keep the Board updated in terms of

9 status calls for whatever. We're still not the

10 proponent in this matter, but I think we've come to

11 the position that the agency obviously has a pretty

12 important role to play. We certainly have

13 volunteered and tried to take the lead in the

14 stakeholders process, and in that capacity, I would

15 think 60 days is all I'm asking for at this point,

16 and I could report to you more later on when and if

17 we should proceed to the next step after that.

18 That's -- I'd love to give you a better answer,

19 Tanner, but I can't.

Q. So what you're expecting to do in

21 60 days is have more discussions and come back and

22 say here are the areas where we can agree, here are

23 the areas where we cannot agree?

A. That's my hope and intent. In those

0025

1 areas where we can agree, I certainly would bring

2 forth my experts and the substantive testimony to

3 support those areas, and those areas where we can't

4 agree, I would do the same. We would bring in our

5 data and our experts and help the Board have a

6 better, more complete record. We have done some

7 data analysis and some evaluation and development of

8 our own concepts, and I think it would be more

9 constructive and everybody would be better served if

10 we held that data back at this point in time.

Q. I have no more questions.

12 BY MR. HEARING OFFICER:

Q. I just wanted to follow-up on that.

14 You're not suggesting that a hearing be scheduled

15 60 days from now, are you?

A. No, I'm suggesting that 60 days is

17 almost a minimal time to try to have meaningful

18 interaction with multiple groups of people

19 represented by multiple individuals. Even though

20 most of those people have indeed been involved with

21 this and openly participating, and we understand

22 ourselves better than we did a year ago, but still

23 that's a lot of logistics to deal with.

Q. So are you suggesting then a status

0026

1 report perhaps would be filed by the agency in

2 roughly two months?

A. I'm willing to commit to that, yes.

Q. A written status report?

A. Yes, which what would that put us at,

6 November 1?

MS. MOORE: Approximately.

8 BY MR. HEARING OFFICER:

Q. Roughly, yeah?

A. I will offer that, yeah, in the spirit

11 of trying to keep things moving and keep the Board

12 fully knowledgeable and aware of progress or lack

13 thereof.

MR. HARSCH: IAWA proponent would have

no objection to that.

HEARING OFFICER: Okay. Would anyone

present have an objection to my ordering IEPA

to provide a written status report in roughly

60 days from today? Seeing no objection,

I'll order that. I'll issue a written

hearing officer order that will specify what

we're looking for and a specific date, but it

will be -- you had mentioned the beginning of

November. November 1st is a Tuesday. If we

0027

could have it in hand, that's a little more

than 60 days, from today. So if we did a no

mailbox, that's what I'll go ahead and

require, and I'll document that in the

hearing officer order.

MR. FREVERT: You have my commitment

to that, and I'll make one more offer. Is

anybody in the room who has not been active

in participating in discussion with us and

they feel they would like to, I'd certainly

welcome that. We'll meet and discuss people

and share perspectives whether it be in a

group setting or a one-on-one setting,

whatever the preference. It's not our intent

to have anybody fell like they're left out of

the opportunity to help develop a position.

HEARING OFFICER: Okay. So any other

questions for this witness? Seeing none, I

would just ask counsel for the agency, did

you want to move to have the written

statement entered as a hearing exhibit?

MS. DIERS: Yes, I would please.

HEARING OFFICER: Okay. I didn't yet

mark IAWA's exhibit yet. So this IEPA

0028

statement Toby Frevert's testimony will be

Exhibit 14. Is there any objection to

entering that into the record? Seeing none,

that will be hearing Exhibit 14, and I've got

a copy of that right here.

MR. FREVERT: Okay.

HEARING OFFICER: Thank you very much.

MR. FREVERT: I'm available if you

need anything else during the course of the

hearing.

HEARING OFFICER: Thank you.

Continuing the trend of going out of order

maybe, there seems to be a consensus that it

a would make sense to go with the Department

of Natural Resources' presentation at this

point. Is there any objection to doing that?

Seeing none, I'll ask counsel for DNR to come

up front and take a seat. If you don't mind,

can we go ahead and swear you in because I

just have a feeling you're going to be asked

some questions, and it may just be easier to

do it now. Is that okay?

MR. YONKAUSKI: Okay.

0029

(Witness sworn.)

MR. YONKAUSKI: Stan Yonkauski,

Y-O-N-K-A-U-S-K-I, for Department of Natural

Resources. The Department of Natural

Resources is not so pessimistic about the

future and status of the stakeholder

meetings. We've all along felt that the

process that was involved in the dissolved

oxygen proceedings here where the IAWA and

EPA have been extraordinarily useful.

They've helped focus our attention on the

information that we got, our needs, our

interests, even though those may not have

been communicated terribly well at some

point, and even though those stakeholder

meetings have been quite contentious at other

points. It's obvious that there are

divergent interests and divergent needs on

the parts of the IAWA and its members and the

Department of Natural Resources, but we

believe that there's been some progress made,

and the management of our respective

agencies, the Illinois Environmental

Protection Agency and their department want

0030

that progress to continue.

To that end, we support Toby

Frevert's statement and encourage the Board

to authorize extra time, more time for the

stakeholder meetings. We will be a full

participant and will be working with them to

come up with a coherent -- at least a

coherent state approach, as coherent as we

can, if not a fully integrated proposal

involving the major parties, at least that's

the hope and the goal.

That leaves us with the -- what

we're going to do today, and we do not --

because of this, because of the interest in

additional time and additional need to work

with the IEPA, we are not prepared to have

Dave Thomas's testimony presented today or

entered into the record. As Mr. Harsch

pointed out, there's some question about what

then is that testimony. We would not

consider it to be, at this time at least, the

statement, the position of the Illinois

Department of Natural Resources. Whether

it's appropriate to withdraw that testimony

0031

at this time, leave to refile at some future

hearing or to leave it as testimony that may

be withdrawn or realize, if you will, at some

future hearing, I'd ask advice of the hearing

officer. I'm certain it provides some

consternation for the proponent or the

proposer of the regulation, the regulatory

proposal, and as long as there are going to

be future hearings, we wouldn't be adverse to

it's withdrawal as long as there are other

hearings and other opportunities for

presentation of the full position of the

department.

HEARING OFFICER: Okay. Well, I think

there's a -- I mean, no additional hearing

has been scheduled certainly --

MR. YONKAUSKI: That's correct.

HEARING OFFICER: -- at this point in

time. We simply have the status report that

will be filed November 1st by IEPA.

MR. YONKAUSKI: There is an intention

on the EPA's part to present testimony, if

not comment on, as Mr. Frevert said in his

statement. So that at least hints at the

0032

potential for their interest in a hearing.

HEARING OFFICER: Certainly a

possibility. I would suggest that if this

rule-making goes forward, I cannot imagine

that there would not be another hearing, but

I think you indicated that at this point in

time Dr. Thomas's prefile testimony does not

represent the position of DNR?

MR. YONKAUSKI: Correct.

HEARING OFFICER: Then I'll leave it

up to you. If you want to make a motion to

withdraw that testimony with leave to refile

it, I can consider that motion. That's up to

you. I'll open it up too for any potential

objections. Mr. Harsch, go ahead.

MR. HARSCH: I don't have any

objection, in fact, would be more than

willing to support any motion that DNR might

want to make for leave to withdraw for the

right to refile, refile it as written

testimony in the future. In the event that

there's not a hearing and DNR wishes to do

so, they could move to file it for inclusion

in the record in whatever manner, but I think

0033

it makes more sense to withdraw it at this

point, and we can move forward if there's a

future hearing accordingly.

MS. WILLIAMS: Can we talk about

practically how that would work?

MR. YONKAUSKI: Please.

HEARING OFFICER: You're asking me to?

MS. WILLIAMS: Yeah. Sorry. I've

just never seen this before, so I'd like to

understand.

HEARING OFFICER: Well, why don't I

continue to survey opinions here.

MR. ETTINGER: I'm Albert Ettinger,

E-T-T-I-N-G-E-R. I represent Prairie Rivers

Network and Sierra Club. I would suggest

that we not simply withdraw it because

Mr. Yonkauski has now testified all about

this document in the record, and anyone

reading the record is going to want to know

what the discussion is about. So if it's

withdrawn, I would like to offer that it be

readmitted as a hearing exhibit with the

explanation that it is what it is now, and if

DNR doesn't ascribe the same thing to it that

0034

it did before, then Mr. Yonkauski's testimony

describes where it is now, but at least

somebody reading this record will not find

all of this discussion of a mystery document.

HEARING OFFICER: Any responses to

that argument?

MR. HARSCH: That opens up a

tremendous area of concern to IAWA. If it's

entered into the record, what weight is it

going to be given by the Board as an exhibit?

As far as we are concerned, prefiled

testimony that is not presented shouldn't

have any weight. If DNR wants to submit it

as a public comment at some point in time in

the future, they can do so. The record shows

that it does not reflect at this point in

time necessarily the view of DNR.

MR. YONKAUSKI: I would be

uncomfortable with leaving it as an exhibit.

It's either going to be our testimony at some

point in the future or not. I'd be

uncomfortable leaving it as an exhibit as

something then that we have to go and put an

asterisk by, like Mark McGuire's home run

0035

record, something that we would then have to

explain ad infinitum. My belief, but it's

based on an experience, is that the

testimony, if it's not presented, isn't

anything. It's just a document that's

sitting in a file some place, if you will,

until such time as it is tendered and

Dr. Thomas stands for cross-examination. I

don't anticipate that the product of the

60 days effort between the IEPA and DNR will

result in anything like Dr. Thomas's

testimony presented in the future. I

anticipate that there will be progress made

towards something that the stateside can

agree to. With that anticipation and hope, I

would move that the testimony be withdrawn

with leave to file at some future point

future hearing.

HEARING OFFICER: Okay. So that's the

motion which IAWA I think has indicated they

have no opposition to. Mr. Ettinger, you're

opposing that? You object to that?

MR. ETTINGER: You know, frankly, you

know, it's out there. We've all seen the

0036

nasty thing. If Dr. Thomas ever comes in and

testifies or DNR ever comes in and says

something that flatly contradicts that, I'm

going to offer it. I may turn around and

offer it -- the Board's rules are very

liberal as to what they'll accept as a public

comment. I can turn around and offer it as

something Albert Ettinger got from, low and

behold, the Pollution Control Board website.

So, you know, if you want to go through the

process of physically withdrawing it as a DNR

submission so that Prairie Rivers Network --

put it back in as Prairie Rivers Network

submission in a week, fine.

MR. HARSCH: If Albert wants to follow

that procedural step, he's free to do so.

We'll do a lot further in the stakeholder

operation process I'm sure.

MR. ETTINGER: I don't want to spend a

lot of time on this. The fact of the matter

is it's out there. Whatever horrible effect

it's going to have, we've all seen the nasty

thing. So we can leave it in the record and

not -- we will probably -- since we've all

0037

seen it, I can tell you it won't go away, but

maybe it will go away in the sense that it

will never be of any practical necessity

because hopefully we'll all come up with an

agreement and there will be no need to offer

any further exhibits like that or any other

thing other than our magnificent agreement,

which we'll be producing to the Board.

HEARING OFFICER: IEPA's counsel?

MS. WILLIAMS: I just wanted to say

for what it's worth, we agree with Roy and

stand that we would like to see this out of

the record for the time being.

HEARING OFFICER: Off the record.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER: I'm going to grant

DNR's motion to withdraw the prefiled

testimony of Dr. Thomas. As DNR's counsel

has represented in his testimony, the

prefiled testimony does not represent DNR's

position anymore. So I think it will be less

confusing for all involved to grant that

motion to withdraw, and I will also document

0038

that in the hearing officer order that sets

the 60-day status report. That will

hopefully help clarify to anyone reading this

transcript exactly what has transpired, and

hopefully we can avoid any of the confusion

that Mr. Ettinger thought may be brought. So

with that, the motion is granted, and did you

want to continue with any additional

testimony at this point?

MR. YONKAUSKI: No, I think 60 days

may be barely enough, but as long as it's

just a status report in 60 days. We

recognize there's a lot of work to get done,

and we're looking forward to it.

MR. JOHNSON: Those of us that read

this document, are we going to be required to

forget it?

MR. YONKAUSKI: Yes or put an

imaginary asterisk next to it.

MR. JOHNSON: Okay.

HEARING OFFICER: Are there any

questions for Mr. Yonkauski?

MR. HARSCH: Just a statement of

thanks.

0039

HEARING OFFICER: Seeing no questions,

the Board doesn't have any questions at this

point, thank you for your testimony this

morning. I think at this point we can veer

back on course and continue with IAWA's

presentation.

MR. HARSCH: Thank you. I guess a

little bit of follow-up. We are heightened

by today's events that have occurred and

looking forward to working with IEPA and IDNR

and other stakeholders at either reaching an

agreement or eliminating the issues in

presentation to the Board in what will most

likely be an additional hearing. We have two

witnesses today. I think it's important that

we bring the Board up to date with respect to

what we believe as proponents have occurred

in the year since the last hearing. At this

point in time, I'd like to call Dennis

Streicher.

HEARING OFFICER: Mr. Streicher, I'll

just remind you and the other IAWA witnesses,

you've already been sworn in.

0040

1 BY MR. HARSCH:

Q. Mr. Streicher, will you state your

3 name?

A. My name is Dennis Streicher.

Q. Have you previously testified in this

6 proceeding?

A. I have.

Q. I show you a copy of what was filed

9 with the Board as written testimony. Mr. Streicher,

10 is that an accurate copy --

A. Yes.

Q. Did you prepare this prefile

13 testimony?

A. I did.

Q. Would you please summarize this

16 statement for the record?

A. Okay. Let me again introduce myself,

18 Dennis Streicher. I'm director of water and

19 wastewater with the City of Elmhurst. I'm also

20 president of IAWA, and I've been involved in the

21 stakeholder process from the very beginning. As Roy

22 said earlier, I'd like to thank a number of folks

23 who have really helped out in this whole process,

24 Toby Frevert and all of the IEPA staff, Bob Mosher

0041

1 and Paul Terrio, Gregg Good, as well as the IDNR

2 folks who were at the meetings. Those who attended

3 the stakeholder meetings were, I think -- as stated

4 earlier, were educated I think in our process and

5 what our goals were and motives were in bringing

6 this petition, and I think really after a lot of

7 work and such, we had more things that we agreed on

8 than we didn't. I've been asked to summarize this,

9 and I'm going to attempt to do that, and excuse me

10 if I'm being a little extemporaneous with this

11 because I am. As things have evolved, you know,

12 I've been having to rewrite and rethink my testimony

13 a couple of times, but in my written testimony, I

14 had, I think, outlined probably three major topics

15 or three major points that I kind of wanted to touch

16 on.

Throughout the last year in

18 talking with folks all over the state many of whom

19 were opposed to this petition or have a sense about

20 it, I'm seeing a perception on a lot of people that

21 this is, and you'll see these words used in

22 testimony as roll back or a lessening of a standard

23 or that sort of perception, and I just want to ask

24 the Board to look at the data and not think of this

0042

1 perception. It is just an unfortunate perception,

2 not our goal to roll back or to lessen a standard.

We represent the wastewater

4 agencies across the state. We are -- our

5 constituency is all of the state constituency. Our

6 goal is to do what's right with the water

7 environment, and as like any rule, you want it to be

8 right. You want it to be on target. You want it to

9 be science based, and that's what we're focussing

10 on. Many of these things get to be discussions that

11 are based on, again, perceptions or politics, and we

12 just can't let that get injected into this

13 discussion. I think it needs to be science based.

14 The current standard, as Toby Frevert said earlier,

15 is unworkable. It doesn't suit -- it doesn't serve

16 the state. It doesn't suit the needs of, if I can

17 express the needs of a natural environment, it

18 doesn't express the needs of those rivers and lakes.

19 It's antiquated. It's never been reviewed in some

20 30 years. It was probably put together at the very

21 beginning quickly without a lot of background and

22 data support.

Over this time, we've gotten that

24 information, and in fact, even over the last year

0043

1 these stakeholder meetings has generated a huge

2 amount of interest in a number of agencies, and as

3 Dr. Garvey will testify later, much more technically

4 than I, it's amazing how the Whiles/Garvey report

5 has so accurately predicted what occurs in natural

6 streams. The standard we have today creates

7 violation, and it puts us as an industry, and I hate

8 to use the word industry, but we are a profession

9 that is focussed on water quality, and it puts us in

10 a place that we need to modify our process and spend

11 money -- spend taxpayer money to achieve a goal that

12 may never in the end be achievable by having

13 incorrect or inappropriate values or goals for the

14 rivers. The DO numbers that we are shooting for

15 today just can't be met many times of the year.

One of the jokes I had or one of

17 the kind of cynical statements I had in the last

18 year is that when you take pristine rivers in

19 Illinois that don't meet the current dissolved

20 oxygen standard, and to fix it what we should do is

21 build a dam and put in aeration devices and take the

22 pristine river and make it an artificial river and

23 add oxygen that way. Of course, that's facetious,

24 but that may be the only way that we can actually

0044

1 get some of these rivers to meet the standard.

2 What's wrong here? It's not the river. So we need

3 to meet the standard.

Those perceptions that I mentioned

5 came out in a number of conversations that I had

6 with folks across the state, and I know the Board

7 has received a number of letters and petitions.

8 They're all posted on the website of Fox River

9 people, in particular, who are writing a form letter

10 kind of echoing that perception that we are lowering

11 the standard. As though -- I guess, as though our

12 industry can set a standard of an unrealistic number

13 and somehow turn the dial and get the river to go up

14 to that number. Or conversely, if we set the

15 standard to a different number that may be lower at

16 times of the year, we could turn the dial back down,

17 and somehow or another all this follows. I think

18 what we want is a standard that follows a natural

19 process, not a standard that forces a natural

20 process. It doesn't work that way. But that

21 perception is out there. A lot of these folks have

22 the idea that we are selfserving in this position,

23 that we are attempting to lighten our own expenses

24 or lighten our own load, and that's just not the

0045

1 case. Enough on that.

Another point I wanted to talk

3 about was the stakeholder process itself, and I

4 mentioned EPA and DNR. Prairie Rivers was in there.

5 USEPA was there. A number of interested

6 stakeholders, and I was amazed at the breath of

7 interest that we had from across the state. I think

8 there was a genuine desire to get this work through,

9 and there was a lot of time spent to educate those

10 folks on some of the science and some of the motives

11 and goals that IAWA had. I'm not sure that in the

12 end now, considering how things have changed, that

13 we have actually been successful in that.

However, while not being

15 successful in motives and goals, I think everyone

16 sees that the data that have been presented over the

17 stakeholder meetings and the new studies or the new

18 reports that had been submitted are enlightening

19 everyone greatly, and they can't deny that. They

20 can't deny that new information. What happened

21 during the stakeholder meeting, though, in one way

22 made me a little uncomfortable because -- and I

23 mentioned this in previous testimony, that you don't

24 negotiate facts, and I have a city manager at

0046

1 Elmhurst who I'm privileged to work for, who is an

2 engineer himself and has used that statement over

3 and over again that you're allowed to have opinions.

4 Everyone is allowed to have an opinion, and

5 everyone's allowed to change their opinion, but

6 don't change the facts. The facts are what they

7 are, and I got myself into occasional feelings of

8 feeling like we weren't getting anywhere with the

9 stakeholder meetings because we found ourselves in a

10 position negotiating facts, of negotiating a river

11 that may be having the old standard and a river that

12 has our new proposed standard. Negotiating times of

13 the year when things happen because we are in our

14 petition proposing that there be seasonal

15 adjustments to the DO -- allow DO in the rivers, and

16 we've got data to support the dates that we've

17 presented. We've got data to support that all of

18 the rivers, at least a very good number, if not all,

19 but a very good number of these rivers, will work

20 and operate very well with our proposed standard,

21 but yet, we got into this business of negotiating.

22 And I felt very uncomfortable with that, and I've

23 said that many times. I just don't want to

24 negotiate the facts.

0047

So in the end if there's

2 compromises, and always there is compromises, I ask

3 the Board to just be aware, compromises are going to

4 be leaving out rivers or including rivers, whatever

5 the case is, you need to just look at the notes,

6 look at the data.

I've been summarizing this, and as

8 I said, I've been extemporaneous, and I'm going

9 through this very quickly, but I'm -- in the end,

10 I'm impressed with our DNR folks, at least those

11 that attended the meetings. I think that they have

12 a genuine interest to do things that are right.

13 Unfortunately, I think that it's the EPA folks who

14 are really going to be on the hot seat when it comes

15 to enforcement and in having a regulation that is

16 workable and that reflects what is going on in the

17 real world. The DNR are great. They have

18 perception of wanting to protect everything, but

19 it's the EPA guys who are going to have to enforce

20 the speed limit, and I think they see the reality in

21 this, and the reality in our petition. So that's a

22 summary. That's what my -- my testimony.

MR. HARSCH: At this point in time,

Mr. Hearing Officer, I'd like to move

0048

prefiled written testimony of Dennis

Streicher as Exhibit 15.

HEARING OFFICER: Motion to enter

Mr. Streicher's prefiled testimony as a

hearing exhibit. Any objection to that?

Seeing none, I'll go ahead and mark that.

I'm sorry.

MR. CHINN: Howard Chinn from the

Attorney General's Office.

HEARING OFFICER: Sure.

MR. CHINN: I just have a question.

Whether his testimony is verbatim of the

prefiled testimony?

HEARING OFFICER: It is not, and

correct me if I'm wrong, Mr. Streicher, but

you were summarizing and perhaps adding some

additional information orally today.

MR. STREICHER: I've been asked to

summarize, and I did that as best I could,

but I probably did elaborate on some points

further than I did in the written testimony.

MR. CHINN: Thank you. When will the

transcript be posted?

HEARING OFFICER: Probably the middle

0049

of the week of September 5th. That's our --

the standard turn around on transcripts I

think is 8 to 10 working days. So it may

vary depending on the length of our hearing

today, but I would think the week of

September 5th.

MR. CHINN: Thank you.

HEARING OFFICER: So that was not an

objection to the motion. I see no objection

to entering prefiled testimony of

Mr. Streicher as a hearing exhibit, and that

will be Exhibit 15.

I ask counsel for IAWA, do you

want to open it up for questions for this

witness, or would you rather have questions

posed to the three of you as a panel?

MR. HARSCH: I think it would make

sense to do it as a panel. I do have one

kind of follow-up question.

20 BY MR. HARSCH:

Q. Dennis, can you explain for the

22 Board's edification where IAWA is with the process

23 of efforts at moving forward with stream

24 classification regulatory development?

0050

A. Right. IAWA, as I mentioned earlier,

2 is focussed on hopefully developing the best

3 regulations to work with, and this petition that's

4 before you now is maybe a first step in that regard.

5 The IAWA has several months ago authorized a number

6 of funds, a lot of funds of our own private

7 association funds, to begin the process of reviewing

8 use designation categories in Illinois, and to take

9 a look at what we might do to revise where Illinois

10 is today. IAWA has hired a consultant to this

11 regard. We've gotten a committee together of some

12 very technically competent folks, and we're

13 proceeding with this. We've got a letter out to the

14 a number of stakeholders who participated in this

15 stakeholder meeting and are inviting them to the

16 table to begin that discussion, and we'll be

17 inviting IDNR to work with them. Our intent is that

18 DNR has begun assembling a list of what might be

19 called, I guess, outstanding resource waters, list

20 of a streams that they would like to have identified

21 as having that higher use, and that's fine. That

22 may be one of the categories that we end up.

I think the focus here is that

24 IAWA is moving forward on this in an attempt --

0051

1 including everybody in the process, in an attempt to

2 try and maybe make up for some of the past omissions

3 or errors or just get things back on track in terms

4 of identifying the best rivers, the crown jewels,

5 they've been called in Illinois.

MR. HARSCH: At this point in time,

I'd like to call Dr. Garvey.

8 BY MR. HARSCH:

Q. Dr. Garvey, please state your name for

10 the record.

A. Dr. James Garvey.

Q. And, Dr. Garvey, I show you what has

13 been marked as Exhibit 16, which is your prefiled

14 testimony with the inclusion of Exhibit 3, which was

15 not included in the prefiled testimony. Is this a

16 true and accurate copy of the prefiled testimony you

17 prepared?

A. That's correct.

Q. Dr. Garvey, can you extend your

20 possible -- summarize your testimony?

A. Okay. I'm not sure if this is the

22 right way to go as well, but when I'm giving my

23 summary, if you have questions, feel free to ask as

24 I go along. That might make this go a little

0052

1 faster, and also I think it will be helpful for

2 people if they have points of question. Again,

3 because this is a summary of my written testimony,

4 I'm not going to go into the same amount of detail.

5 So I want to make sure that people understand what

6 I'm talking about.

Thanks to the Board for hearing me

8 today. I'm Dr. Jim Garvey, and I'm associate

9 professor in the department of zoology at Southern

10 Illinois University of Carbondale. I'm also the

11 associate director of the fisheries and Illinois

12 Aquaculture Center at the same institution. I'm

13 ecologist by trade primarily in aquatic systems.

14 Most of my work is focussed on fish and fisheries

15 related issues. However, I've worked in many other

16 aspects of aquatic ecology. My primary interest

17 from a research perspective is trying to understand

18 the effects of the physical environment on the

19 organisms that exist within aquatic systems,

20 primarily fish assemblages.

There are generally two approaches

22 to ecology, I would have to say. One of them is to

23 focus primarily on organisms and try to understand

24 why they are in a particular place at a particular

0053

1 time. People who do ithiology or any of those sorts

2 of cology sorts of fields have a tendency to focus

3 on these individual case studies, if you will, of

4 particular organisms.

My work is, though I've obviously

6 have been trained with ithiology, my work is

7 generally college. We're looking for general

8 patterns, trying to understand what influences the

9 suite of organisms that exist within a particular

10 system. I think it's very important to note that

11 that's a very different approach and a different way

12 in thinking about ecology and environmental issues.

I got involved in this process

14 about two years ago. IAWA initially approached

15 Dr. Matt Whiles, who's another aquatic ecologist at

16 Southern Illinois University, to generate a report

17 assessing the current dissolved oxygen standards in

18 the state. Matt who primarily works at the

19 invertebrates thought that it would be good to get a

20 fish person involved. So he got me to be involved

21 with this. I'd like to clearly state to the Board

22 and everyone in this room that there were absolutely

23 no expectations placed upon Dr. Whiles or I about

24 what was to go into that report. The only thing

0054

1 that we were asked to do was to provide our

2 professional assessment of the current standards in

3 light of the national criteria document that was

4 developed by the USEPA in the '80s and current

5 information that was available to us. All right.

6 Completely independent analysis. There was no

7 influence other than more or less Whiles and I and

8 talking to our colleagues, professional colleagues,

9 when we developed this report.

We concluded that the current

11 standard in Illinois doesn't work. We came up with

12 a modified standard of which the Board is well

13 knowledgeable. Essentially, we came up with a

14 spring standard and a summer or the rest of the year

15 standard. The reason why we had two different

16 standards was we know that the early life history

17 stages of many aquatic organisms appear generally in

18 the springtime, and we wanted to make sure that we

19 had protection for them because we know that they're

20 more sensitive to hypoxia.

The summer standard was an attempt

22 to reconcile the fact that we know that water at

23 warm temperatures tends to hold lower oxygen, and we

24 also know that communities respire. They actually

0055

1 breathe. Just like individuals do, well, entire

2 assemblages of microbes and fishes and invertebrates

3 breathe air in the water, and that's going to

4 influence the amount of oxygen that's available to

5 the organisms out there. They're going to respire

6 more during the summer than they do during the

7 wintertime. So our standard was developed to deal

8 with that.

In the second hearing before this

10 Board, I was privy to the analysis of data,

11 continuous DO data, that came from eight Illinois

12 streams, and I provided my analysis of that relative

13 to the proposed standard by IAWA, which more or less

14 came from Garvey and Whiles report, but I also

15 looked at the current Illinois standard, and I found

16 that the IAWA standard tended to find the streams

17 that had a DO problem still found a DO problem. And

18 the IAWA standard found that streams that didn't

19 have a DO problem still fell within not violating

20 that particular standard.

So in other words, the proposed

22 standard worked, whereas, the current Illinois

23 standard often found violations in streams that were

24 otherwise in pretty good shape from the perspective

0056

1 from the biology, the fish assemblages and active

2 rivers found within these particular systems.

After the second hearing, we

4 obviously wanted to have a series of stakeholder

5 meetings to discuss how we might take the Garvey and

6 Whiles standard and make it more amenable to the

7 various agencies and groups that were interested in

8 this. My general points of contact outside of the

9 stakeholder meetings -- and I did attend most of the

10 stakeholder meetings; in fact, I attended all of

11 them -- was primarily with IEPA with Bob Mosher who

12 I interacted with, and IDNR was Scott Stuewe who is

13 the acting chief of fishery, and we talked a lot

14 about how to develop the standard, and we also

15 agreed to disagree upon particular issues that also

16 came out in the stakeholder meetings.

What I found from my outsider

18 perspective is that the stakeholder meetings were

19 very, very useful. I think they were very -- well,

20 I think everybody came out and had their opinions,

21 and it worked out very well. Some of the things

22 that we developed during that process is we added a

23 30-day mean, which was suggested I think in the

24 second hearing. The 30-day mean of 5.5 milligrams

0057

1 per liter, and I think we talked about that during

2 the second hearing, and I'll talk a little bit about

3 analysis to see whether that works okay for this.

4 We still found that it generated a lot of violations

5 for streams that probably shouldn't have violations.

In addition to the analysis of

7 eight streams or continuous data that was done by

8 USGS, Paul Terrio and his crew, we also got some

9 data from Ohio EPA, Ed Rankin who's a biologist. He

10 used to be Ohio EPA, but now he's with the Center

11 for applied Bioassessment and Biocriteria, provided

12 us with a draft via Ed Hammer, I believe with the

13 USEPA. And in general, his analysis was, again,

14 looking at DO and biotic integrity relationships in

15 the State of Ohio, which is very similar to

16 Illinois.

And I'd have to say that you can

18 break down his analysis into two parts. One, the

19 analysis are looking at the specific species

20 accounts. What species were present as a function

21 of the grab samples of dissolved oxygen that were

22 taken at a particular site. And they found that

23 there was variation among the species in the average

24 DO that was found in on the particular site where

0058

1 that particular species resided. Well, that makes

2 sense because some species might be in areas where

3 DO might be elevated for whatever reason. It could

4 be gradient. It could be better water quality from

5 the perspective of less nutrient loading and those

6 sort of things.

What I'd like to point out is that

8 when you're looking at species accounts, as I said

9 before, you can run into a misleading issue of

10 finding or not finding species in particular areas

11 and trying to then assume causality. There's no DO

12 here when that species not here, but when it's low

13 DO that's causing that, but the reality is is that

14 there's another suite of factors that are

15 influencing the presence or absence of that species.

16 Whether that species was there historically, whether

17 that species is affected by the habitat, which is

18 then related to the dissolved oxygen in that

19 particular system, whether that species was

20 extricated by, say, for example, somebody coming in

21 and dumping a toxin in that particular stream.

22 Attributing it to the low DO is probably not the

23 best way to go because you can really run down some

24 particularly misleading paths if you're focusing

0059

1 primarily on individual species accounts and trying

2 to relate that to just taking DO. You have to do

3 analysis to try to tease those factors apart.

Also, in the Rankin report, which

5 is a robust analysis, in my opinion, and that

6 analysis was to look at community matrices based on

7 the macroinvertebrates and based on the fish

8 assemblages that were there. So the IBI and the

9 ICI, and trying to relate that to dissolved oxygen.

10 If you take a look at this report, you'll find that

11 the relationship between dissolved oxygen from grab

12 samples, minimum levels that were found in the grab

13 samples, continuous data, look like someone took a

14 shotgun and shot it at the wall in general. All

15 right. Very little relationship between -- or at

16 least apparent relationship between the dissolved

17 oxygen and the community of matrices. That is one

18 of the exhibits that I --

MR. HARSCH: Exhibit 4 of your

prefiled testimony.

DR. GARVEY: Yes, and you know, they

look like this (indicating). All right.

MR. HARSCH: You're referring to which

page?

0060

DR. GARVEY: Figure 3 in Exhibit 4, I

suppose.

HEARING OFFICER: So this is figure 3

and attachment four to Dr. Garvey's prefiled

testimony?

MR. HARSCH: Yes.

HEARING OFFICER: Which will be part

of Exhibit 15. So there will be no

objection.

MR. RAO: I have a question.

MR. GARVEY: Yes, jump in.

MR. RAO: I saw those kind of plots,

and I saw no correlation, but then you also

had some box plots left. Could you comment?

DR. GARVEY: That is figure five, and

if you take a look here, it has what are

called the ICI range and the ICI narrative

range, which are just more or less mildly

equivalent to the IBI. The higher the score,

the more sensitive organisms to habitat

quality may be oxygen. We're not really sure

exactly what the factors influencing it, but

from a biological standpoint, biologists who

work in these systems, the streams that look

0061

good that they think are intact, not affected

by humans have a tendency to have a suite of

invertebrates assemblages, and that's the

reason why they look at that. There does

appear to be a trend here. All right. But

again, the scatter around the median and the

means in these box blocks are huge. So we're

not going to put a huge amount of -- but

there is a relationship very, very weak of

DO. However, it should be noted that even if

systems with very high ICI values, very, very

high, that on occasion, not a lot, but on

occasion, these systems have been found to

either veer around 4 milligrams per liter or

even below that.

In science, the reality is that we

always talk about consensus, and the thing

that will kill any theory in science is the

one exception, if that happens. In this

case, there are a lot of exceptions here.

Maybe not a huge number, and there does seem

to be a track between DO and probably habitat

quality regions of the invertebrates that are

in that particular system, but it's really

0062

hard to, again, assign causality to DO as the

major factor that's influencing the organisms

that are in that particular system.

So I just want to be careful that

when we take field data and we try to make

broad statements about it, that we must

understand a lot caveats associated with it,

and that's why we do have to do specific

laboratory experiments. We have to look at

the particular tolerances of the organisms

and determine DO sensitivity that way, and

then extrapolate that to the field through

inductive testing. I just want to caution

people on that.

So through the stakeholder

process, talked a lot with Illinois DNR.

They seem to take a pretty -- I think, major

role at the outset. Primarily led by Scott

Stuewe, Jim Nick. They did come up with a

list of streams that is summarized -- well, I

guess I can't say it's summarized in Thomas's

prefiled testimony, but there is -- and I do

believe that there should be some movement,

and I think that's already happening, toward

0063

streams that are the really high ICI streams

in that Rankin document that have habitat

qualities that probably are related to

dissolved oxygen to some extent that we don't

really understand that. We need to identify

those streams in the state and assign them

extra protection. Are we there yet? Well, I

think IDNR worked really hard to come up with

an initial list of streams, but I still think

we're working towards that goal.

Another issue that I think is

still, and we thought when we came to this

hearing, was a major unresolved issue, was

spawning timing issues. When do we implement

the spring spawning time or spring standard

and summer standard. IAWA regarding Whiles

report proposed June 30th as being the cutoff

or July 1st being the cutoff between the two

times.

I did a series of analysis to look

at that. I'm sure I'll get asked a lot of

details about this. So I'm probably not

going to go into it right now, but the

reality is it seems to hold based on my

0064

analysis of the effect of spawning time in

the state. One thing we did talk about

during one of the stakeholder meetings,

though I never know what happened to that was

should there be a north/south split because

we know that temperature is a major factor

influencing the timing of spawning in fishes.

Fish are ectotherms. They heat up with the

water. When the temperature and photo period

are right, they spawn. In the north, they

probably spawn a little later than with that

equivalent species in the south. So there

might be some cutoff between those two.

And so after my analysis, I

suggested that probably the current IAWA

proposal of the June 30th, July 1st cutoff

for the south probably works, and July 15th

would probably be acceptable for the north.

That's in my prefiled testimony as well.

So more or less, that is an

analysis or I guess a summary of what I was

involved in with the last year. Again, I'd

like to just reiterate, and I said this in my

prefiled testimony as well, that the reality

0065

is is that -- oh, just one other thing that I

guess I should point out --

HEARING OFFICER: Can I interrupt you?

DR. GARVEY: Yeah.

HEARING OFFICER: Before you -- we had

a question on the north/south issue.

DR. GARVEY: Sure.

MR. RAO: Yeah, in going over your

prefiled testimony, we saw one of the

recommendations was maybe have the early life

state period different for the northern

stream and southern stream. Do you have any

analysis as to how we identify these streams?

DR. GARVEY: We -- well, one way to

look at it is just look at climatology and

look at the -- oh, I don't know, the degree

days, which would be the amount of cross days

that are in a particular part of the state.

We talked about I-70 as being a reasonable

split. Some people say whether above I-70

below I-70 is different. If you take a look

at the climate maps, they actually look like

they kind of correspond with each other, that

is, cooler north of I-70 and warmer. And

0066

that does correspond with other sort of

ecological ways of looking at the species

that were present, that sort of thing. So

that was the potential split, and you know,

IDNR -- I think Scott Stuewe was the person

that suggested that.

MR. RAO: Well, hopefully in the

future we'll hear a little bit more.

MR. STREICHER: We haven't checked

with IDOT on that.

MR. RAO: Yeah, they're not part of

the stakeholder group?

DR. GARVEY: They should be. They're

invited.

The only other issue I think that did

come up was the issue of spawn timing. Also,

we know that there are these tricky species

that begin spawning late spring, and then

from spring spawn through October, and I know

that in the last hearing and the first

hearing we went through a lot of this.

Again, this is something we're trying to

rectify because we know that during the

summertime the streams respire, water doesn't

0067

hold as much oxygen, and yet, there are still

species that do very well. Even with the

list of streams that DNR came up with that

were based on DO sensitive species that are

present in those systems, I think 30 segments

were found to actually have DO problems.

They're actually listed for DO problems.

So how can a DO sensitive species

be present in a system with a DO problem?

That's hard for me as a biologist and as a

scientist to rectify in my head. I won't go

any further with that, but that's something

we should take into account.

HEARING OFFICER: If I could just ask

you a question. I was actually go going to

ask Dr. Thomas, but I'm going to ask you

instead.

DR. GARVEY: Okay.

HEARING OFFICER: Is the mere presence

of those DO sensitive fish the end of the

analysis, or do you look at fish abundance?

DR. GARVEY: Well, that's the problem

is that in general the presence or absence of

the species is a very different factor than

0068

the actual abundance than the reproductive

ability and all those sort of things, and

I'll probably just reiterate what I've said

time and time again. Most of these analysis

are the presence or absence of the species

and maybe have some rough high/low abundance

thing, but I don't know if that data -- those

data are available, to tell you the honest

truth, at that level for that kind of

analysis.

HEARING OFFICER: Okay.

DR. GARVEY: So finally, what I'd say

is you need to take into account the habitat

when you're looking at these particular

systems because habitat is the important

template, and the DO probably comes in as the

secondary factor as the organisms that we see

in those particular systems, and I'll leave

it at that.

20 BY MR. HARSCH:

Q. Dr. Garvey, let's go through the

22 exhibits and have you briefly explain what they are.

A. Okay.

Q. Attachment one, which you referred to

0069

1 in the prefiled testimony as Exhibit 1, what is this

2 document?

A. This is a document that was brought to

4 my attention by some folks in Illinois EPA. This

5 was developed by a Chris Yoder, I believe at Ohio

6 EPA, and more or less, what they found is that

7 originally the state had, I believe, a minimum of

8 6 milligrams per liter for waters that are

9 considered to be exceptionably warm water habitat,

10 and they did an analysis and found that, more or

11 less, a lot of the streams are going to violate

12 that. They're going to drop below 6 milligrams per

13 liter. So this is analogous to that 6 milligrams

14 per liter for 18 hours a day or 16 hours a day?

Q. Sixteen.

MS. MOORE: Sixteen.

17 BY DR. GARVEY:

A. Sixteen, I just can't remember. In

19 this state, that the reality of reception waters

20 could get that. And so what this document does is,

21 more or less, look into data that they had, and

22 actually that Rankin document that we'll talk about

23 a little bit, I think probably drills on the same

24 source, and they found that instead of a minimum of

0070

1 5 milligrams per liter and a daily average of

2 6 milligrams per liter is probably more realistic

3 for waters that exceptional habitat. I'm not sure

4 what the distribution of these streams are in the

5 state, and again, this is the to best of my

6 knowledge, so if anybody has read this and found

7 something different, they should let me know. But

8 again, I don't know really the characteristics of

9 the streams that are considered the exceptional

10 water habitats warm water habitats in Ohio. I mean,

11 I don't know if they have the special

12 characteristics in terms of habitat or how they're

13 distributed round state.

14 BY MR. HARSCH:

Q. What is attachment two that you

16 referred to as exhibit to your prefile testimony?

A. Exhibit 2 is an analysis that I

18 presented during the great continuous two-year data

19 of DO from eight Illinois streams that Paul Terrio

20 gave to me from USGS. This is the actual report

21 analyzing those data. So this is a more -- they

22 said it was a cleaned up version, but when I looked

23 at data that I had versus the data that presented at

24 the last hearing and the data that they used is

0071

1 pretty much identical, but more or less, it's just a

2 little bit more detailed analysis of what I

3 presented in the second hearing.

If you want to know what it says,

5 it more or less says that there's a lot of variation

6 among streams in the state in terms of the DO, and

7 Paul did a more specific analysis in the -- that

8 we'll talk about in a few minutes.

Q. What is Exhibit 3 then?

A. That I believe is what we just brought

11 in today, the color copies, right? And this is an

12 analysis of the day that I, again, analyzed when I

13 gave my presentation in the last hearing. This was

14 done by Paul Terrio through USGS. This was not done

15 by me. Okay. So this is, more or less, an

16 independent analysis of what I testified to.

In a nutshell, as far as I can

18 tell and other people again can refute me, it first

19 takes a look at just the Illinois daily minimum of

20 5 milligrams per liter. It puts the continuous

21 monitoring data into that, then it finds that

22 streams that are in really bad shape in the state

23 have a tendency to violate 5 milligrams per liter a

24 lot. Streams that are more northerly, probably

0072

1 don't violate it very much, maybe 1 1/2 percent.

2 And then there is, of course, Lusk Creek, which is a

3 difficult stream in the southern part of the state.

4 That's a valuable resource, and the current

5 standard, as I mentioned in the previous hearing,

6 the current standard violates about 23 percent of

7 the time. In other words, if you're going to go out

8 to that particular site, take a DO reading, you're

9 going to say there's a DO problem in that stream.

10 On the other hand, if you take a look at the fish

11 and the invertebrate there, this is a pretty

12 valuable stream. So we've got a problem here. The

13 science doesn't necessarily fit the theory. All

14 right.

So what Paul then did is looked at

16 a couple scenarios. One of them was to -- what he

17 called scenario one here, which states the exception

18 of water, the warm water habitat, Ohio standard.

19 And just tries to fit the daily minimum of 5

20 milligrams per liter in the seven-day -- actually,

21 he called it the 7-day mean minimum 6. He found

22 that it still violated streams that we think are in

23 pretty good shape quite a lot.

Q. Which streams are you referring to?

0073

A. The North Folk Vermillion, the Middle

2 Fork Vermillion, the Vermillion River, and Lusk

3 Creek, in particular, would be the ones that I'm

4 talking about.

Then there's another analysis that

6 Paul did, and that was scenario two on these sheets,

7 and what he did there was he looked at the IAWA's

8 seasons and the IDNR's seasons, this is when we were

9 sort of haggling about what the seasons should be,

10 and applied a 5/6 standard to the nonsensitive

11 season. Again, based on what Ohio does, and then an

12 even a more stringent standard during what we

13 consider to be the sensitive season, a minimum of 6

14 milligrams per liter and a 7-day mean of 7.8

15 milligrams per lighter. And lo and behold, IAWA

16 seasonal designation and the IDNR seasonal

17 designation were about the same. They found that

18 the violations were, you know, 4 percent of the time

19 somewhere.

Finally, we look at the IAWA

21 scenario, which is at 3.5 milligrams per liter and

22 4-day mean minimum -- or 7-day mean minimum of 4,

23 and a 30-day 5.5 milligram per liter average during

24 nonsensitive seasons, but during sensitive seasons

0074

1 one of 5.6. And basically, you can look and you can

2 see that the IAWA proposals, more or less, the

3 number of false violations fall zero for all the

4 streams that we care about, Vermillion -- the Forks

5 of Vermillion, the Vermillion River and Lusk Creek,

6 in particular, are the important ones.

The only one that's a little bit

8 disturbing is the 30-day mean of 5.5 milligrams per

9 liter, again, was found to violate the standard

10 24 percent of the time, the proposed standard by the

11 IAWA. So this analysis was very helpful. It kind

12 of indicated what I talked about the last hearing.

13 At least my interpretation of it is that it more or

14 less mirrors what I already talked with you about.

15 So do you have any questions about this for my

16 interpretation?

MR. RAO: Can you come up with a

written explanation of what he did, or is

this just what you got?

DR. GARVEY: Just what I got. Let's

just say, during the stakeholder meetings, we

were free to interpret the data without the

interpretation of various agency folks. All

right. And so that's my interpretation, and

0075

I leave it up to science experts from other

groups to look at this.

MS. WILLIAMS: Dr. Garvey, if you

don't mind my interrupting, I think the

agency would intend at some point that Paul

be here for you -- available to ask him

questions if we have another hearing and

explain himself of the data, that would be

helpful.

MR. RAO: Very helpful.

11 BY MR. HARSCH:

Q. I will draw your attention to what you

13 refer to as Exhibit 4 attachment 4 to your prefiled

14 testimony. Can you explain what that document is?

A. This is a draft document that was

16 provided by Ed Rankin. Who was formally with the

17 IEPA. He's more or less a fish biologist, but now

18 he's with the Center for Applied Bioassessment and

19 Biocriteria. This is actually, I believe, that

20 previous Ohio EPA document that I showed you by

21 Chris Yoder. This is more or less another analysis

22 that was very similar, but with more data. Again,

23 to get relationships that are scatter plots --

Q. You're referring to which?

0076

A. I'm referring to figure 3 IBI and ICI

2 values for minimum dissolved oxygen graph data. So

3 it's the same deal. It's really hard to place any

4 strong pattern. If you took a look at the minimum

5 values in figure 4 of that document, again not very

6 often, but some of the streams with really high IBIs

7 did drop a low four on occasion. All right. And

8 again, in these box plots -- you know, it was a rare

9 event, but they did occur. So if EPA biologist just

10 happened to be out taking a grab sample at that

11 time, they would say that system that had a high

12 biotic integrity had low DO and it was in violation.

13 All right. So that was, I guess, the main issue

14 associated with this.

This document also has specific

16 mean DO values, tables and tables, for various

17 species, and we could attribute -- if you take a

18 look at a particular species of the invertebrate or

19 fish here, you could interpret the DO values, the

20 means, as reflecting their DO requirements, but

21 again, I caution that there's also a habitat that

22 formed in here, and it's very difficult without

23 doing the right kind of analysis, more laboratory

24 based experiments, it's really hard to interpret

0077

1 these data.

MR. RAO: I have a question on one of

the -- that Rankin discussed the difference

he found between grab samples and continuous

samples.

MR. GARVEY: Yes.

MR. RAO: He said that the continuous

samples underestimated the measured DO values

compared to grab samples. Is that something

that needs to be considered when establishing

the standards and how we implement the

standards?

MR. GARVEY: My personal opinion, yes.

I think grab samples are horribly misleading

if you take them during the day. If you take

them during the day of systems that might

have a very bad DO problem, you're not going

to detect that particular problem unless you

have continuous data to show you when the DO

stags occur. I've talked with other

biologists that have found that sometimes the

DO doesn't drop right at mid or very, very

early morning and dawn. Sometimes

mysteriously the DO actually is lowest at

0078

midnight. Okay. And so even if we sent our

poor biologist out to go take grab sample

predawn, it might not be picking the periods

of lowest DO. The biologists don't

understand why this is occurring, but some of

my colleagues found that that occurs. So

implementing with continuous data in my

opinion is really the way to go with this,

and we mention that in our report.

MR. RAO: And is that part of IAWA's

proposal, or would that be for the agency

when they --

MR. HARSCH: I think we went on at

some length at one of these hearings about

the appropriateness of how -- whether we were

proposing a standard, and then there was a

long line of questions about the

implementation, and I think Mr. Frevert

cautioned that that was really within the

agency's purview, and that if we develop the

standard, they would be coming forward with

the matter that it should be implemented, but

we have gone on record as recommending the

use of continuous DO monitors, and in fact, I

0079

think Dennis has testified that a number of

IAWA members are in fact installing DO

continuous monitoring data recorders and that

data is being made available.

MR. RAO: Thank you.

DR. GARVEY: Any other questions about

the Rankin document?

8 BY MR. HARSCH:

Q. No. I draw your attention to

10 Exhibit 5 or attachment 5 to your testimony. Can

11 you explain what this document is?

A. Sure. During the stakeholder process,

13 I obviously was trying to think a little bit more,

14 Scott Stuewe brought up the fact that spawning

15 timing probably differs among fish, primary channel

16 catfish throughout the state. Channel catfish

17 economically important species for both the

18 recreational and commercial standpoint. They're

19 also known to have as early life stages that are

20 relatively sensitive to DO, which is a real curious

21 thing given the fact that it is from the early

22 summer spawner. So I decided to take a look and try

23 to understand a little bit more about that to try to

24 come up with this north/south split.

0080

More or less, I went back to the

2 literature, and instead of looking at the -- a lot

3 of the time if you take a look at the early

4 ecological test, and actually the most recent ones,

5 they tell you that species spawn on certain months,

6 you know, May through July or something like that.

7 Obviously, May through July for a fish in the

8 southern part of the state and in the northern part

9 of the state are going to be a different experience

10 in terms of temperature. What I did is try to go

11 back to the literature and look to see whether there

12 was information on the actual spawning times in

13 terms of temperature for these species. They were

14 more limited, and a lot of the time the spawning

15 temperature was given an initiation, what

16 temperature was needed to initiate spawning, but not

17 necessarily -- they didn't give the entire range.

18 So with this analysis, I just more or less asked the

19 question, how is temperature in the state as it

20 varies from northern and southern systems, and I

21 took some of the data from Terrio and what I have

22 already showed you, the temperature data, and just

23 looked to see how the temperatures differed between

24 the northern region and the southern region. I

0081

1 found that there was a pretty significant difference

2 in the amount of the warming that occurred in the

3 springtime, which would then influence more or less

4 when fish would initiate spawning.

From that analysis -- well, you

6 know, it's kind of tough, but what I try to do is

7 take into account the proportion of species in

8 Illinois, and when they should initiate spawning,

9 not go through the entire spawning time, but at

10 least initiate spawning. What I found is that there

11 was a north/south difference that probably by early

12 June in the southern part of the state 95 percent of

13 the species that are in the state, fishes, probably

14 initiate the spawning. They're not finished

15 spawning, but they're starting.

In the northern part of the state,

17 it's probably delayed by maybe 15 days, maybe

18 two weeks, somewhere in that vicinity. That was my

19 justification for that two-week difference between

20 the northern and the southern part of the state.

21 Anyway, so that was more or less the gist of this

22 particular analysis that I did.

Q. Can you explain for the record what

24 Exhibit 6 or attachment 6 is?

0082

A. Does anyone have any questions about

2 this (indicating) exhibit or is this pretty clearly

3 written?

The next exhibit is actually some

5 data from a from Laura Csoboth, who's one of my

6 students. These data are not published yet. These

7 are for a study that we're doing currently in the

8 vicinity of Swan Lake, which is in the Illinois

9 River. For those of you who are not familiar with

10 Swan Lake, it's near the confluence of the Illinois

11 and the Mississippi Rivers just above St. Louis near

12 Grafton and Alton.

Swan lake is pretty close to the

14 center of the state, and it is an area of the

15 Illinois River where we expect it to sort of reflect

16 the median of temperatures and conditions that would

17 occur in terms of the fish. All Laura did this

18 summer -- well, this is from a year ago last

19 summer -- was to quantify the larval fish that were

20 produced in the Illinois River and in Swan Lake, and

21 this analysis is more or less looking at the number

22 of fish that are moving from the river into Swan

23 Lake in -- or from Swan Lake out to the Illinois

24 River. That's out. All right. That's actually not

0083

1 that important for you guys to care about. All you

2 should care about are the symbols, not what's coming

3 from the Illinois River, the back water of Swan Lake

4 right now. But I think the important thing to note

5 is that we have spawning that occurs in fishes --

6 oh, one other thing, the gray line on this figure it

7 is just the discharge. And you can see here that

8 the depth is the depth of the particular water --

9 depth water that we had, and that corresponds with

10 the amount of discharge. In other words, we had a

11 spring flood that occurred in June, and it lasted

12 through more or less July in 2004, very different

13 than this year.

The point is, is that most of the

15 spawning had occurred in the larval fish component

16 before July 1st. Probably 50 percent of the

17 spawning occurred somewhere between June 1st and

18 July 1st. This, in a way, shows that, like I've

19 tried to argue in my previous testimony and also in

20 some of the exhibits that I've given, that most of

21 the spawning probably occurs prior to that July 1st

22 cutoff date. That's all I'm trying to point out

23 here. There are some stragglers, primarily

24 sur-target, for example, those are the sunfishes

0084

1 that keep spawning through July, but you'll find on

2 average that most of the spawning gets done in the

3 Illinois River and Illinois streams by that point.

4 So that kind of indicates my analysis to some extent

5 I believe. Though, I'm sure there's other analysis

6 out there that might show exceptions. I think on

7 average that's probably what occurred, but this year

8 we're finding the same basic pattern. Anyway, I

9 thought I'd provide that data just to show you that

10 we are doing research that helps to define some of

11 the statements that are made before the Board.

Q. Exhibit 7 or attachment 7, can you

13 explain for the record what that is?

A. That's a figure from Garvey and Stein,

15 which is paper on Transactions of American Fisheries

16 Society, which used to not seem like a long time,

17 but '98 is starting to sound like it is a long time

18 ago. These are from three reservoirs that I worked

19 on in Ohio as a Ph.D. student. I was privy to

20 getting a lot of data on larval fish of timing and

21 spawning, primarily are the most abundant species in

22 Ohio reservoirs, and actually is the same for

23 Illinois reservoirs, and that's gizzard shad and

24 bluegills. And all I'm showing here is basically

0085

1 the temporal progress of spawning of these species

2 in the summer in each year for '87 to '94 in three

3 lakes --

THE REPORTER: I didn't hear the

lakes. I'm sorry.

DR. GARVEY: Okay. The lakes are

Clark Lake, Stonelick Lake and Kokosing Lake.

8 BY DR. GARVEY:

A. And, anyway, what it's going to show

10 you is, one, that on average a lot of the spawning

11 occurs before July in most of these lakes. Again,

12 this is just more data to support what I've already

13 talked about. There are exceptions and say, for

14 example, in 1991, a lot of spawning occurred after

15 July, and I can tell you that those were sunfish

16 that were spawning at that time, and we know they do

17 that. So there are exceptions, but if I was to take

18 this analysis, and I was to look on average when

19 50 percent of the spawning occurs for these two very

20 common groups of the fishes in Ohio, it's going to

21 occur before July 1st. That was the only point I'm

22 trying to make from this particular figure, and it

23 is published. It's been peer reviewed. My

24 anonymous colleagues have looked at it and given its

0086

1 approval.

HEARING OFFICER: I'm sorry. You said

50 percent occurs by July 1st?

DR. GARVEY: Right. We're going to

have to get into the next issue here.

HEARING OFFICER: Which is Exhibit 8?

DR. GARVEY: The analysis of spawning

time that I talked about before was only

based on the initiation responding. Again,

we know that there are species that they'll

start their responding in early summer, late

spring, but then these little critters will

keep spawning and invertebrates will keep

making babies, and we really don't know

anything much about mussels when they're

doing their spawning thing. They're going to

keep going through the summer, and a lot of

them will do that.

But we need to figure out a new

perspective, and this is called a production

based effort. If you're a conservationist

and you want to protect every single organism

that lives, then you basically create a

standard that's not realistic that these

0087

streams or reservoirs can't necessarily

provide, but who cares, because you're going

to assume that that's going to protect every

single individual that's produced. But what

we found with most of fishes is that a

generality, and there are always exceptions

out there, that the fish that respond

earliest, i.e., probably for most of the

species before that July 1 date, are the ones

that are going probably to contribute

disproportionally in a large way to the

actual populations that are out there. This

holds for many different species that are out

there.

In other words, it's usually the

thinnest -- I can't believe I just said that.

That's awful. No, I'm not supposed to say

that as a scientist. It's usually the fish

that are in the best condition, big fish --

healthy fish are the ones that tend to spawn

earliest because they start out in the

summertime or the springtime in the best

condition. They don't have to eat a lot to

reproduce. So they get their spawn off

0088

early. Why is there a benefit to that?

Well, the general belief is there's a benefit

to that because it ensures that your

offspring have the longest time during the

summer to grow and bait predators, get lots

of food in your body so that you can put on a

lot of fat, so that when you approach that

first winter of life, you have plenty of

preserves to deal with the scarcity, which is

low temperature and low productivity of

winter. Usually then those fish will come

out of that first winter the ones that

survive.

There are later spawned

counterparts, the ones that respond late in

summer, might have a very, very small

probability of surviving that first winter,

but in general, they don't make it. That

will get into the next figure that I'll show

you in a minute. That's a generality. There

are times when something really weird happens

in the spring, and then all of a sudden,

usually the fishes that spawn in the middle

of the season, then they have some weight to

0089

the offspring that they produce. But very

seldom do those late offspring individuals

really ever contribute much to the

population. They might a little bit because

there must be a reason to why some fishes

still like to spawn, but their probability

isn't very good during that part of the

season, and I can name lots and lots of

studies out there that reiterate this. Not

that I'd say it's a theory because there are

a lot of exceptions that occur, but that's a

general rule in a lot of fish ecology.

MR. GIRARD: I have a question. What

would be some of the possible advantages for

the late breeders?

DR. GARVEY: Let's say, for example,

you get off at early -- well, it's actually

more complex than these. Dave Knuth who

worked really hard in some lakes around

Sparta, Illinois, and what he found is that

these really robust healthy adults they don't

only spawn usually earliest, but they also

make a lot of babies late in the season,

spawn and spawn and spawn because they're in

0090

great condition. So they still -- there

might be some advantage on occasion through

evolutionary time for spawning late. Why is

that? Because sometimes something really bad

will happen in the spring. What might that

be? It could be a cold snap that comes in,

freezes out those early spawn individuals.

It could be some other unforeseen effect, and

then usually the individuals that then spawn

later in the season, are usually not the ones

that spawn in October because usually

sunfish, for example, I'm talking about

sunfish, that come out are only about that

(indicating) big going into --

HEARING OFFICER: You're indicating

about an inch big just for the record.

DR. GARVEY: Oh, for the record, yes.

Can you take a picture of this. Probably

even less than an inch, but yeah, maybe less

than an inch. They just don't make it

through that first winter of life. There

are, again, exceptions, but very seldom.

It's bet hedging, more or less. What's

happening is is that you don't want to put

0091

all your eggs in one basket. On the other

hand, there's a tendency to put your eggs --

more of your eggs in the basket earlier than

you put your eggs later on in the season.

We're still working this out, but that's the

next exhibit is this study that I did.

MR. GIRARD: So basically what you're

saying is environmental factors can be

variable, like climate and other features?

DR. GARVEY: Right. And so what

happens is there's actually two life

histories -- or actually there's three life

histories, but two researchers Kirk

Weinmiller and Ken Rose are two people that

came up with this, what I'm basing a lot of

this on a paper that was written in Canadian

Journal of History of Aquatic Sciences in the

early '90s. I've kind of influenced my

thinking that there are different

philosophies to approach this kind of stuff,

but I tend to try to think about how the life

history of the organisms superimposes the

environment that they're in. People disagree

with me, but that's how I try to understand

0092

how the world works.

MR. GIRARD: So if you don't have

those late larval or don't allow them to

survive, you're reducing the variability of

the population?

DR. GARVEY: Yes, what will happen is,

this is something that I think anybody who,

for example, allows -- say, for example, from

fisheries management perspective, what would

be the ultimate thing that you would want to

do if you are totally protecting it? Shut

down the fishery. Don't let anybody fish

that species, right? Because you don't want

to take any individuals if you want a healthy

population there. You can do that, but on

the other hand, you've got to find when

you're trying to rectify particular factors,

how much fishing is allowable, how much do

you protect without having a huge negligible

affect on that population? The other thing

the populations have a tendency to do is that

if you have a predation on them, they tend to

respond in a compensatory way. They'll put

more of their effort in a time -- for

0093

example, spawning at a time when they're

going to have the most benefit.

Anyway, to go back to my earlier

point, in the fish world, probably in a lot

of the world, there's actually probably at

least two major strategies. There's the fish

that spawn all at once, do their thing,

usually on top of a resource. This typically

happens in fish that spawn in early spring.

They tend to produce their offspring all at

once in a periodic fashion. Those offspring

then usually overlap a resource. They go

really fast. As long as that resource is

there. So they're basically putting all

their eggs in one basket. That tends to

happen in spring, as far as I can tell.

Again, I can't name any literature on fresh

water fishes that really shows this. Then

the summer -- the late spring early summer

spawners tend to have this protractive thing

going on. They just kind of spawn and spawn

and spawn, and they're called an

opportunistic strategy, and that is your bet

hedging strategy where you basically --

0094

because of the environmental variability out

there, you can't predict when your predators

are going to be there. You can't predict if

there's going to be a cold snap or a flood or

a drought. So what you do is you don't spawn

all at once. Okay. But still on average the

fishes that spawn earliest we found at least

in the -- or what I have from literature and

my personal experience, that the fish that

spawn earlier probably have the highest mean

fitness from the perspective -- and when I

define fittest meaning that they have the

highest probability of surviving to reproduce

again and put off another generation.

Through time, even though they're still

spawning through time, that expected mean

fitness declines. Why do they still spawn

late in the season? Because every once in a

while once every 10 years, 100 years, who

knows, something catastrophic is going to

happen to those early babies, and then your

stock just went up really high, but only for

a brief time. So then -- I don't want to get

into it. If you look at it from an

0095

arithmetic standpoint, it's not actually not

contributing a huge amount, but that once in

a very rare time, obviously it contributes

enough that it stays in the population as a

strategy. Is that what you --

MR. GIRARD: You answered my question.

DR. GARVEY: That's the best I know,

and someone else could testify and say I'm

full of it, but that's my best understanding,

and I've written a paper on this, and this is

the next exhibit --

12 BY MR. HARSCH:

Q. Eight.

A. Which is called protracted

15 reproduction sunfish --

HEARING OFFICER: This is attachment

DR. GARVEY: This is attachment 8, and

you just have the figure from it, but anyway

the paper is called protracted reproduction

in sunfish, the --

HEARING OFFICER: Let me just --

DR. GARVEY: It's the wrong one?

HEARING OFFICER: Attachment 8 to your

0096

prefile testimony is entitled protracted

spawning in fishes - implications for

proposed dissolved oxygen standards.

DR. GARVEY: Okay. That's what I'm

talking about.

HEARING OFFICER: Thank you.

DR. GARVEY: Anyway, the paper is

called the temporal dimension in fish

recruitment revisited. And this is the paper

I published when I was working in Ontario

Lakes --

MR. HARSCH: Wait a minute, Jim. I

don't think so.

HEARING OFFICER: Off the record.

(Whereupon, a discussion

was had off the record.)

MR. HARSCH: We've clarified the

attachments.

19 BY MR. HARSCH:

Q. If I show you what was submitted in

21 your prefiled testimony of exhibit or attachment 8,

22 can you explain what the document entitled

23 protracted spawning in fishes implications for

24 dissolved oxygen standards?

0097

A. Yes, you're correct and that's

2 actually what I just spent the whole time talking

3 about is more or less that this idea that the early

4 spawn fishes are the ones that contribute

5 disproportionally to the population. There are

6 exceptions I will admit, but it's a -- it's the only

7 way that I can rectify why one fish spawn in a

8 protractive fashion during the summer. Anyway, that

9 does segue into the next exhibit.

Q. I have a question before we segue.

A. Sure.

Q. Those protracted spawners, if I

13 understand what you've testified to in terms of the

14 continuous data that you were provided by

15 representative of the agency in the Ohio data, those

16 fish are spawning at a time when you know that the

17 dissolved oxygen levels are going to be at or near

18 the summer numbers?

A. Yeah, they have to be because we find

20 the communities present there that are considered to

21 be high quality, and yet, we have continuous data to

22 show that the systems do occasionally reach the

23 3.5-milligram minimum.

Q. So the numbers that you're proposing

0098

1 in your opinion are protective of those species that

2 have developed and evolved into the continuous

3 spawning?

A. To the best of my knowledge.

Q. Would you move on and explain what

6 attachment 9 or Exhibit 9 to your prefiled testimony

7 is?

A. Yes. Sorry about the confusion there.

9 That's just a figure 8 of a paper entitled

10 protracted reproduction in sunfish: The temporal

11 dimension in fish recruitment revisited. It's in

12 the journal called Ecological Applications. It

13 summarizes some work that I did with sunfish in

14 Ontario in a lake called Lake Opinicon. Anyway, all

15 that's shown here in figure 8, part of the earliest

16 -- the size distribution of young sunfish that were

17 produced back in 1999, that was a long time ago,

18 anyway, these were fish that were produced by 21

19 September in this lake. It's Ontario so by 21

20 September, we should pretty much assume that all the

21 spawning has stopped. It's getting pretty cold in

22 those systems already. If you take a look -- we're

23 really interested here in this lake frequency

24 distribution. The total length on the X axis is

0099

1 just the size of the fish. On the Y axis is

2 proportion frequency. That's just the proportion of

3 fish in the distribution. The thing that we're

4 interested in is everything to the left of the

5 dashed line in each one of the panels. Those are

6 fish that we aged using ear bones, which actually

7 allow us to get the daily age of fish, we extract it

8 from the fish. We determined that those fish were

9 actually from that year. So they're offspring is

10 from that year.

We found in September and October

12 of that year a distribution of fish that range from

13 somewhere between 30 millimeters and just less than

14 probably 48 or 49 millimeters. When we came back in

15 May of the following year, the following spring, we

16 found that most of those young individuals --

17 because size and age are typically related to each,

18 but the bigger you are the older you are because

19 you've had a longer time to grow during that year.

20 The small, young individuals were absent from

21 distribution. Again, to suggest that only those

22 individuals that were large enough and had enough

23 energy reserves to survive during the winters, they

24 were the ones that made it to the next side, and

0100

1 literature has a lot of examples like this, and that

2 was just me trying to make the point again that

3 typically we find that the earliest spawn largest

4 young that are the ones that contribute to the

5 population. Other than that, I don't think I have

6 anymore exhibits, unless Roy found one that I --

MR. HARSCH: At this point,

Mr. Hearing officer, I'd like to move for the

admission of prefiled testimony of Dr. James

Garvey and the nine attachments there to?

HEARING OFFICER: Motion to enter

Dr. Garvey's prefiled testimony and nine

attachments and that includes attachment 3,

the Paul Terrio USGS data, which was omitted

from the prefiled testimony as filed

August 4th, I believe.

MR. HARSCH: Right.

HEARING OFFICER: Any objection to

entering that as a hearing exhibit? Seeing

no objection, I'll mark that as hearing

Exhibit 16 and enter it into the record as a

hearing exhibit.

At this point, it's about 20 to 1.

We might as well start questions for the IAWA

0101

witnesses. I imagine we're going to go into

the afternoon with that questioning, but at

this point, I'll just open it up -- the Board

does have some questions in addition to the

ones we've asked, but I'll open it up to the

audience first. Mr. Ettinger, did you have

an a number of questions?

MR. ETTINGER: Well, if somebody has

questions who wants to ask them and get out

of here, maybe they should do it. I'm going

to have more than 15 minutes. I'm not

planning to go hours because we're all going

to agree on a standard in 60 days.

HEARING OFFICER: Okay. Well, why

don't we start Mr. Ettinger's questioning

after lunch and open it up to anyone else who

might have questions for the IAWA witnesses

who may not want to return after lunch.

Anyone else have any questions for any of the

IAWA witnesses?

If you could state your name and

organization for the record.

MR. CHINN: My name is Howard Chinn.

I'm an engineer with the Attorney General's

0102

Office, and the question I have is, is it a

fair statement of IAWA that the current

standard is technically feasible and

economically practical to comply with?

MR. STREICHER: No, it is not

feasible. It is a -- as you may have heard,

the diversity of the ecosystem that

Dr. Garvey described, with all that diversity

out there and that one size fits all

dissolved oxygen standard, and we don't think

that's feasible. We don't think that

accurately reflects what goes on in the

rivers that we are tributary to that we are

responsible for keeping -- you know, meeting

Illinois EPA standards. We don't think that

it's feasible.

In terms of economics, I can give

you an example just from my own experience at

the plant that I operate. There was a desire

by Illinois EPA to impose a dissolved oxygen

limit in my permit.

MR. HARSCH: You mean a water

quality --

MR. STREICHER: A water quality based

0103

effluent limit for dissolved oxygen.

Fortunately, I was able to argue that that

shouldn't be in my permit, but if it had

been, I would have been forced to extend some

dollars to modify the plant to meet that.

In addition to that, the river

that I'm on has been as a USEPA published

total maximum daily loading report. In that

report, dissolved oxygen is identified as an

impairment on the river, and the report

actually identified proposed improvements at

wastewater treatment plants, POTWs, within

the basin to comply or to mitigate those DO

impairments. I think they had identified

some $18 million of proposed costs and other

estimates on $40 million plus. If that was

imposed just a mitigated dissolved oxygen

violation on a standard that we don't think

is feasible to begin with, that cost would

have been borne by the plants. So it is

costly.

Now, having said that, let me say

too, if the river has a deal impairment, we

are not opposed to addressing that

0104

impairment, and there are -- some of the

rivers and the data that's been presented

show that they have impairments regardless of

what standard that may be imposed, the

existing or imposed one.

We're not here to take rivers off

of the list, so to speak. We're here just to

establish a correct value to work from and

use that number to address the river

impairments.

MR. CHINN: Have you conducted any

technical feasible study as to what is needed

to enable you to come into compliance with an

existing DO standard?

MR. HARSCH: Mr. Chinn, I can respond

to that.

We're not talking about an

effluent limitation.

THE REPORTER: Can you turn towards

me?

MR. HARSCH: We're talking about the

appropriateness of a water quality standard

for general used waters in the State of

Illinois, and you have missed out on two days

0105

of hearing. We've had some summary testimony

today from Dr. Garvey in the presentation of

continuous monitoring data collected by USGS

and IEPA that shows that a number of streams

in Illinois that are thought of as being

pristine streams, like the North Fork, the

Middle Fork and the Vermillion River do not

currently at all times meet the current --

THE REPORTER: The current what?

MR. HARSCH: Current use of general

water quality.

HEARING OFFICER: If you wouldn't mind

just spinning around for the court reporter.

THE REPORTER: I'm sorry.

MR. HARSCH: Howard, it's not a

question of having a discharge that complies

with the standard. It's a question of coming

up with the appropriate standard that fits

what we expect to see the waters of the State

of Illinois exhibit in terms of dissolved

oxygen levels and appropriate levels for a

standard to be set at.

MR. CHINN: The early comment I

thought I heard was that this effluent

0106

standard would be based upon the water

quality standard.

MR. HARSCH: Yes, Illinois EPA

routinely is charged with developing effluent

limitations for inclusion in NPDS permits

based on complying with water quality

standards, and although it's not set forth in

any regulation, I think it's clear from the

record that Illinois EPA has initiated a

policy of including a dissolved oxygen

limitation of 6 milligrams per liter to be

met 24 hours a day and seven days a week in a

number of NPDS permits, and that's what

Mr. Streicher testified to regarding the

proposed permit limitation in his permit.

MR. CHINN: So am I correct or is this

fair to say that it is technically feasible

to --

MR. STREICHER: You can meet 6

milligrams per liter 24 hours a day, seven

days a week on a system either because of the

physical drop or aeration or agitation that

occurs in a treatment plant, or you can

install a fine bubble diffuser, for example,

0107

or other aeration device and produce an

effluent outage sewage treatment plant

discharge that meets 6 milligrams per liter

24 hours a day, seven days a week at an

energy cost and a fossil fuel cost that Mike

Callihan testified at the last hearing, but

that doesn't do much if the stream itself

that you're discharging into does not meet

the current standard of six and five, and

that's what we're getting to is what should

be the appropriate standard for that stream?

MR. CHINN: So by changing the current

dissolved oxygen standard to your proposed

standard, will you then be able to have the

stream water quality standard met at all

times?

MR. HARSCH: No, because I mean the

stream itself wouldn't be the factor here. I

mean, what the quality of the stream, what

the habitat of the stream is.

MR. CHINN: So even -- but this change

as a proposed -- your proposed amendment to

the standard, it would still be noncompliance

in water qualities.

0108

MR. STREICHER: I think what we

believe is if a river is -- already has

problems in water quality.

MR. CHINN: Correct.

MR. STREICHER: Our petition isn't

going to change or remove a river from those

violations. It isn't a significant change to

removing these rivers out of imperative

state.

MR. CHINN: I think you answered my

question. I was just wondering if the Board

adopts proposed changes, are we all going to

be in compliance with dissolved rivers?

MR. STREICHER: No.

MR. HARSCH: Actually, the data that

is included in attachment 3 to Dr. Garvey's

testimony shows that with the IEPA proposal

there will still be rivers that -- some of

the rivers that have continuous data on the

IEPA and USGA has collected will not be in

compliance with the IAWA proposal. Those

rivers have something going on in them that

needs to be addressed, habitat modification,

you know --

0109

MR. CHINN: River flows.

MR. HARSCH: That's correct. It is

our testimony and our position in this record

that the proposal is designed to come up with

the appropriate water quality standard so

that when we go through the TMDL process, we

are looking at an attainable standard when it

is required to be protective of the

assemblage in that stream and one that had

some certainty of being achieved down the

road, and we're not dealing with essentially

artificial value. That really does not have

a scientific basis, and that's also going to

be important in the establishment long-term

of the development of nutrient standards in

Illinois, and that's in the record. The

first two hearings that was presented in some

great detail.

MR. CHINN: Yeah, unfortunately, I

haven't gone through the record. I just got

involved recently. Thank you.

MR. HARSCH: We would be more than

happy to meet you and other representatives

and have you participate during the

0110

stakeholder meetings.

MR. CHINN: Thank you.

HEARING OFFICER: Thank you. Any

further questions for any of the IAWA's

witnesses other than Mr. Ettinger's

questioning, which we'll start after lunch,

and the Board may have some follow-up

questions, anyone else have any questions

they'd like to pose at this point in time?

Seeing none, we are pretty close to our

estimated lunch break. It's about eight or

nine minutes until one. Since we forged

ahead without any break, I think we'll get an

extra eight or nine minutes of lunch time.

We'll start again at 2:00. So for now we'll

go off the record.

(Whereupon, a break was taken,

after which the following

proceedings were had.)

HEARING OFFICER: Where we left off

before lunch was questioning of IAWA's

witnesses. The first thing, though, I've

been asked that everybody really try to speak

up. Some of the people in the back have been

0111

straining to hear the testimony. So if you

could, when posing questions or responding to

them, please try to speak up as best you can.

With that, Albert Ettinger counsel

for Sierra Club and Environmental Law and

Policy Center and Prairie Rivers Network was

going to proceed with questions for IAWA's

witnesses. So with that, Mr. Ettinger, --

I'm sorry. Let me just quickly -- was there

anyone else who had a question for any of

IAWA's witnesses. Mr. Ettinger's questions I

sense may go on for a little bit. Does

anyone else have any other questions for

IAWA's witnesses.

DR. THOMAS: Yeah, I had a question.

HEARING OFFICER: Dr. Thomas from DNR

had a question. Would you mind if we --

MR. ETTINGER: Do you want to follow

me or do you want to --

MR. THOMAS: I could follow you.

HEARING OFFICER: I think Mr. Ettinger

has a number of questions. So he's agreed to

yield. Why don't we go ahead and have

Dr. Thomas from the Department of Natural

0112

Resources go ahead and pose your question if

you would, sir. Again, I'd ask you would

just speak up so the court reporter and other

folks can hear you.

DR. THOMAS: I'm David Thomas. I'm

chief of the natural history survey. I just

wanted to ask Dr. Garvey about one of his

exhibits. The Ohio EPA 1996 report.

DR. GARVEY: Okay.

HEARING OFFICER: Do you have a copy

in front of you?

DR. GARVEY: Sure do.

DR. THOMAS: I would just ask you to

turn to page four. Just look at page four

and five. This is under their summary and

conclusions so it's -- I should say, it's

Roman numeral four -- I'm sorry. Roman

numeral five and six.

HEARING OFFICER: Doctor, I'm sorry to

interrupt, but just so everybody is following

along here, this is Dr. Garvey's prefiled

testimony, which is now Exhibit 16,

attachment one, the Ohio EPA 1996 report, and

I'm sorry, you're at page Roman numeral?

0113

DR. THOMAS: Five.

HEARING OFFICER: Okay. Thank you.

3 BY DR. THOMAS:

Q. It's interesting because this document

5 actually tries to justify going to a minimum --

HEARING OFFICER: I'm sorry. If you

want to make some comments, and you're

absolutely welcome to, I'd prefer to go ahead

and swear you in. If you were just going to

pose a question, that's fine, and we.

DR. THOMAS: No, I was trying to set

up a background for my question.

HEARING OFFICER: If you're

interpreting the document, though, I'd just

be more comfortable swearing you in, if

that's okay.

DR. THOMAS: Sure.

HEARING OFFICER: Go ahead and swear

in Dr. Thomas.

(Witness sworn.)

HEARING OFFICER: thank you.

22 BY DR. THOMAS:

Q. This document actually makes the

24 justification -- well, one, is the designated --

0114

1 what they call exceptional warm water habitat, and

2 this document actually is trying to justify lowering

3 their minimum from 6 milligrams per liter to

4 5 milligrams per liter. The second to last sentence

5 says -- well, they talk about -- they justify values

6 less than 6. They say, "However, values less than

7 5 milligrams per liter were either infrequent, did

8 not correlate with fall EWA's use attainment or were

9 measured only under extreme low flow conditions.

10 The results of this analysis tends to support a

11 minimum exceptional warm water habitat dissolved

12 oxygen criteria of less than six, but not less than

13 five," and then if you go to the next page at the

14 very bottom, they say, the adoption of a 6-milligram

15 per liter daily average, a 5-milligram minimum,

16 two-number DO criteria, and then they go on and talk

17 about cold water, but then they finish it is

18 supported by the scientific evidence both field and

19 laboratory examined by this study.

My question to you I guess is,

21 would you -- what would your statement be that

22 whether Illinois has streams that might fall under

23 their classification of exceptional warm water

24 habitat?

0115

A. I'd say yes.

Q. And do you disagree with their

3 conclusion of reaching a 5-milligram per liter as a

4 minimum for those exceptional warm water habitats?

A. I'd say that it's probably better than

6 it occurred. I would even say that looking at the

7 data that he has compiled -- whoever, I'm assuming

8 it's Chris Yoder. There's still going to be

9 occasional violation, but before the Board and

10 everyone here, how many violations are acceptable,

11 1 percent, 5 percent. When I talked to Ed Rankin

12 about the basis for this report and what he

13 provided, he said that about 10 percent of the

14 stream, I was assuming segments -- but I might need

15 to be a little careful. I'm not exactly sure about

16 that -- are classified under the warmer water

17 habitat. So there are -- this does not cover all

18 the streams in the state of the ones that are

19 considered to have species that might be DO

20 sensitive or need special habitat. So I agree with

21 you there are streams in the state that need that

22 protection. I was under the understanding that when

23 we were at the stakeholder meeting that were

24 provided to us from DNR, at least, was a first step

0116

1 or attempt to identify those particular stream

2 segments and river main stems.

Q. And I think they also say in this

4 document that their exceptional warm water habitat

5 picks up what some biologist would call a cool water

6 species; is that correct?

A. Yeah, I believe so, but -- yeah.

Q. So what they really looked at was a

9 three-tiered system. They had cold water streams

10 with the trout and very oxygen sensitive. They had

11 a group of just called warm water streams, and then

12 they had the exceptional warm water habitat that

13 included cool water plus what they argued were

14 temperature sensitive warm water species; is that

15 correct?

A. I believe so.

Q. And the only other question that I

18 would ask is -- and I may have misheard you say

19 this, but I thought I heard you say something to the

20 effect that exceptions kill a theory, and I assume

21 this was talking about outliars, but I wasn't sure

22 what you meant by that.

A. Well, I always like to use the example

24 that the Einstein theory of relativity and how it

0117

1 was just a theory of light pending across when they

2 actually -- so the point is and none of this --

3 believe me, everything we're talking about here is

4 not at the level of a theory. A theory being

5 something that's the consensus, accepted idea, but

6 the point is, is that if you -- you can disagree

7 with me on this, but if we have a stream segment and

8 it has a suite of DO sensitive species or what we

9 suggest that they are, and we find that that system

10 violates that DO standard that we have. There's

11 something not right there, and the way science works

12 is, is then we go back to that particular stream

13 segment, and we try to figure out what the limiting

14 factor is because we would have to rule out that DO

15 levels that are currently there must be adequate to

16 that species. There's a lot of other factors that

17 could be involved there, but that's kind of how

18 science works. So yeah, that was kind of -- I don't

19 know if that --

Q. But isn't true for biological data

21 that we tend to see a lot of the scatter in our

22 data?

A. We do, but I think the level of

24 relationships between the DO -- and again,

0118

1 scientists can disagree, but the level of

2 variability between DO reading that Rankin provided

3 and the IBIs and ICIs are extreme.

Q. That's true, but I don't know how

5 familiar you are with lake trout, but the fact that

6 they need high DO because they occasionally may move

7 into low or almost anoxic waters doesn't mean -- the

8 fact that you could actually catch them occasionally

9 in very low DO water, doesn't mean that they could

10 survive in the long term in low DO water?

A. Absolutely. Lake trout and a lot of

12 different species that have say, for example, a

13 temperature requirement, and we're talking primarily

14 about cold water species, can't move to the top

15 layer of the water column for a very long period of

16 time without asphyxiating because there's not enough

17 oxygen. So what they do is they hangout at the cold

18 water layer between what they call the thermoclime

19 or between the hypolimnion and the epilimnion, and

20 they hangout there in cold water. There's not much

21 food there, but they essentially hold their breath,

22 go up to the surface and eat some food, and they go

23 back down and digest at that cold temperature again.

24 There's a lot of the species that are cold water

0119

1 that I know of doing that, and I don't know, do you

2 know of too many warm water species that actually go

3 out and do that same sort of thing, they forge an

4 environment that a -- I can't think of any off the

5 top of my head.

Q. If the food is there I heard of small

7 mouth bass in Poursen (phonetic) Lake that they were

8 getting at 98 degrees.

A. Yeah.

Q. That's pretty exceptional, and that's

11 my whole point I guess. The fact that you found an

12 oxygen sensitive species below five or at four or

13 down to three, for instance, doesn't necessarily

14 mean that they would do well in a stream that

15 maintains for any length of time?

A. Yeah, but in a stream system -- and

17 again, I -- you know, I don't know you put a degree

18 of which streams fishes can move over a short period

19 of time.

Q. Yeah.

A. It's kind of still assuming that

22 there's some within the region -- in the

23 vicinity and I don't know if it's within that

24 particular stream segment, but the dominating

0120

1 area for that would be open for that species.

Q. But you do admit that frequency

3 and duration of these lower DOs are very important?

A. Yes, where the spatial heterogneity

5 and the DOs have been very low are a --

HEARING OFFICER: I'm sorry. Just for

the court reporter, we're firing out --

DR. GARVEY: I'm sorry.

HEARING OFFICE: -- a lot of real

technical, long --

DR. GARVEY: Yeah.

HEARING OFFICER: I'm not sure I heard

that one, spatial...

DR. GARVEY: Yeah, spatial

heterogneity is also important. It's not

just the variability in time. It's also the

variability in space whether you got a ripple

area where we talked about at the last

hearing we would assume that based on physics

we should have a little bit higher DO just

because of the aeration that occurs there.

It would be different in a pool where you get

a lot more biological oxygen demand, water is

not moving as much, not reaerating. You

0121

know, it might not be the best place for a

fish to hang out all the time.

DR. THOMAS: That's all the questions

I have. Thank you.

HEARING OFFICER: Thank you,

Dr. Thomas. Mr. Ettinger, should we just go

ahead and swear you in right now?

MR. ETTINGER: Yeah, I am going to say

something.

HEARING OFFICER: Are your colleagues

going to be --

MR. ETTINGER: No.

HEARING OFFICER: You can go ahead and

swear Mr. Ettinger in.

(Witness sworn.)

MR. ETTINGER: First, at the risk of

destroying our spirit of cooperation, I will

state on the record, I'm going to be forced

to put the offensive Thomas testimony into

the record because we filed a comment which

says that we agreed with it. So we will be

filing an Exhibit A to say what we agree with

even if the person who originally submitted

it doesn't agree with it anymore.

0122

Okay. With that, I'd like to

start with some questions for Mr. Streicher.

3 BY MR. ETTINGER:

Q. Looking at page seven of your

5 testimony and looking at the prefiled testimony, it

6 says, today many streams are being labeled as DO

7 impaired when they are not in fact impaired.

Do you know of streams that are

9 listed as impaired that are not in fact impaired in

10 Illinois?

A. We had asked for -- I don't know if I

12 have that list here, but we had asked for a list

13 from Illinois PA of the impairments on the streams

14 that were identified by IDNR requesting the existing

15 standard to remain. We looked for the dissolved

16 oxygen and identified a number of those that had

17 listed the DO impairments. Yet, we're being

18 proposed to have the old standard, the existing

19 standard remain.

Q. Is it your understanding that the DNR

21 list of high quality streams was based on the

22 particular statements that were listed?

A. Some were main stems, some were

24 segments. I mean, I think the Fox River was going

0123

1 to change my mind right off the bat because Fox

2 River has identified DO impairments, yet it was -- I

3 also identified by DNR as a river that had, I think,

4 seven of their listed DO sensitive species present,

5 and such who should have the existing protection

6 remain.

Q. Is it your understanding that a water

8 is listed impaired in Illinois based on a DO rating?

A. It's my understanding that if there's

10 a grab samples -- a grab DO sample that violates the

11 water quality standard, then it could be listed as

12 DO impaired at that point.

Q. Is a water, though, ever listed as

14 impaired --

A. I don't know that.

Q. It'll help the court reporter in

17 clarity if you let me finish my question.

Is a water ever listed as impaired

19 based on the dissolved oxygen data alone?

A. That I don't know.

Q. In fact, aren't waters -- well, I'll

22 just -- have you looked at the IEPA criteria for

23 listing waters as impaired?

A. The 303D list?

0124

Q. The 303D list or the 305B list?

A. I have it.

Q. Don't they, in fact, use

4 macroinvertebrate data and IBI data to determine

5 whether or not water is impaired?

A. Right.

Q. So no water is listed as impaired

8 unless it has either bad bugs or bad fish?

MR. HARSCH: I think he answered the

question.

MR. ETTINGER: He's still nodding,

though, if you'd like to the nodding on the

record.

Now, the fact that the water has

flown with low dissolved oxygen, and I'll

direct this to Dr. Garvey, the fact that

there are spots within a water body like the

Fox River, which have low dissolved oxygen

levels in them, does not mean that there

aren't other areas within the Fox River which

could harbor DO sensitive fish.

DR. GARVEY: Right.

MR. ETTINGER: Thank you. In your

next sentence here in the testimony you

0125

say --

HEARING OFFICER: I'm sorry. Who is

this directed to?

MR. ETTINGER: This is to

Mr. Streicher. I just brought in the last

question to save some time.

8 BY MR. ETTINGER:

Q. Looking at page seven of Mr.

10 Streicher's testimony it says, "Many TMDL reports

11 both published and under development are including

12 unnecessary DO violations adding to the perceived

13 mitigation efforts necessary to restore the rivers."

14 What TMDL reports are you aware of?

15 BY MR. STREICHER:

A. Well, I referred earlier to the TMDL

17 report that was published for the Salt Creek. I

18 know that also for the TMDL that was published for

19 the east branch of the DuPage River. Those are the

20 two that I know of that I'm dealing with directly

21 myself.

Q. Now, when you say they're listed for

23 violations, are you saying that those waters would

24 not be listed where the standard that's being

0126

1 proposed by the IAWA on documents?

A. I haven't done -- I can't say that

3 that would be the case. I know I've seen some data

4 with Salt Creek for continuous DO monitoring that --

5 for segments of Salt Creek who would not be listed

6 for DO impairments for those segments. I think

7 further downstream there could still and would still

8 probably be problems especially after the

9 impalements above the dams.

Q. Well, we'll just check on that. You

11 are not testifying today that either Salt Creek or

12 the east branch of the DuPage River would be removed

13 from the TMDL list --

A. No, I'm not.

HEARING OFFICER: Let him finish the

question and then let him finish the answer.

We're going to have a confused transcript

otherwise.

MR. ETTINGER: Right.

20 BY ETTINGER:

Q. So you're not saying that east branch

22 of DuPage or Salt Creek would be removed from the

23 TMDL list if the IAWA standard were adopted?

A. I am not saying that.

0127

Q. So when you testified earlier that

2 there were estimates that it was $18 or $40 million

3 relating to this DO standard, you don't really know

4 how much of that proposed sewage treatment would be

5 necessary to meet the IAWA standards as opposed to

6 current standards?

A. I do not.

Q. Now let's talk about the 6-milligram

9 per liter effluent limit, and that's -- you know the

10 difference between an effluent and ambient water

11 quality standard; right?

A. Right.

Q. For the members of the audience who

14 might not, could you just briefly tell us that?

A. An effluent limit is a -- is usually

16 identified an NPDS permit. It's an operating

17 limitation that is put upon the wastewater treatment

18 effluent. It must meet that limitation pretty much

19 24 hours a day. Water quality standard is a goal or

20 a standard set for the river itself. The effluent

21 limit is designed to not impact or impair the river

22 such that it would violate that water quality

23 standard in the river.

Q. So this proceeding is about a water

0128

1 quality standard --

A. Right.

Q. -- but your testimony here relates to

4 an effluent limit; correct?

A. Correct.

Q. Right. And your testimony is -- is

7 that in your belief the current water quality

8 standard is causing IEPA to ask for these tighter

9 effluent limits?

A. Say that again. I didn't quite follow

11 that.

Q. Well, I'm trying to -- you're saying

13 somehow that the water -- current water quality

14 standard is causing IEPA to insist on tighter

15 effluent limits on plants like yours?

A. You know, I don't know what IEPA's

17 thoughts are in closing a 6 milligram effluent limit

18 based upon a water quality standard. Again, I'm not

19 sure that my plant effluent which would be sometimes

20 below 6, not much, it could get down to 5.8, is

21 having any great impact upon water quality in Salt

22 Creek. My understanding with those kinds of

23 effluent limits is, again, it doesn't impact stream

24 water quality. There are zones of dilution that

0129

1 allow that effluent to mix in the with the water

2 that's in the river and such that is down after that

3 zone, we're not going to violate.

So to answer your question, I'm

5 not sure what EPA is coming up with the 6 milligram

6 limitation, and I argued that when my permit was

7 being discussed.

Q. And you avoided that 6 milligram --

A. Of --

Q. Excuse me. I'm really sorry. I know

11 I'm slow, and you can see where I'm going, but you

12 really have to let me finish anyway.

So you argued based on the

14 existing regulations that the 6-milligram per liter

15 effluent limit was not necessary to meet the current

16 water qualities here --

(Cell phone ringing.)

18 BY MR. ETTINGER:

Q. -- is that correct?

A. That's correct.

Q. So we don't -- can't really look at

22 your example, your plant, as a reason why we need to

23 change --

(Cell phone ringing.)

0130

1 BY MR. ETTINGER:

Q. -- the water quality standard?

A. I think I said at my plant that I was

4 able to negotiate a measurement, but not a limit,

5 but then I think I also said that other plants are

6 being imposed with the limit that they must need.

7 Now, whether they can meet that or not without

8 additional improvements to the plant, I can't tell

9 you.

Q. Your plant -- you discharged in the

11 what water?

A. Salt Creek.

Q. Now, you have some level of dilution;

14 right?

A. Yes.

Q. What's the dilution there in terms

17 between your -- in discharge at your river?

A. My plant average flow is about five.

19 I think the native flow within the stream average

20 flow is about 30 million gallons a day.

Q. Now, you say there are some plants

22 that are being asked to meet this 6-milligram per

23 liter effluent limit; right?

A. Yes.

0131

Q. Are they, to your knowledge, plants

2 that discharged into low flow streams or streams

3 without much dilution?

A. Some of the plants are, others are

5 not. Some are going to fairly hide dilution, Fox

6 River, others are going into other smaller streams

7 where they would be principle flow in the stream.

Q. Based on your knowledge of permanent

9 writing from having to work with IEPA and IAWA for

10 years, are there a lot of plants in Illinois that

11 are discharging into what are called zero flow

12 streams or low flow streams at the semi --

A. I couldn't give you a number of how

14 many there are. I don't know that in total number.

15 I know there are some.

Q. There are some. Now, those plants

17 they look at their effluent limits as though they

18 have to meet the water quality standards at the end

19 of the pipe, is the term used, right, because they

20 have no dilution?

MR. HARSCH: Albert, who's the they in

your question?

MR. ETTINGER: IEPA.

0132

1 BY MR. ETTINGER:

Q. The IEPA, when they the effluent

3 limits based on the -- for those plants that have no

4 dilution, do they then have to meet the water

5 quality standard at the end of the year?

A. I believe that's the way they work it.

Q. If we -- if we adopted the IAWA

8 proposal, would not the sewage treatment plants that

9 were discharging into waters with no dilution still

10 have to meet a 6-milligram effluent limit most of

11 the year -- much of the year?

A. If the Board were to adopt this

13 petition following your only discharge limit for

14 some time of the year, we'd have a 6-milligram, you

15 know, DO water quality standard. So following that

16 logic, they would some time of the year.

Q. By definition, a plant that's

18 discharging where there's no dilution, if they're

19 discharging at 4.9, and the standard is 6, by

20 definition, there's a violation at the end of the

21 pipe; isn't that true?

A. If what you're saying is -- I would

23 suspect, yes.

Q. So a lot of plants will have to meet

0133

1 the 6-milligram per liter standard whether or not

2 the IAWA proposal is adopted or not?

A. We're working on water quality

4 standard not effluent limits, but --

Q. But you're the one that brought the

6 affluent limits into the case.

A. Yeah.

Q. You said that you're normally

9 discharging at about 5.8?

A. Our dissolved oxygen?

Q. Yeah.

A. No, I'm measuring it just these last

13 few weeks with an average of 5.8. I also had 8,

14 7.9. The average is much higher than that, but 5.8

15 is the low number.

16 BY MR. ETTINGER:

Q. Now, Dr. Garvey, we had a question

18 first about this Exhibit 3. I believe you testified

19 that Paul Terrio put this data together?

20 BY DR. GARVEY:

A. (Indicating.)

Q. What's going on. Is this an

23 instantaneous number here or is this their daily

24 average?

0134

A. I think --

THE REPORTER: I can't hear you.

HEARING OFFICER: Yeah, if you could

not cover up your face while you're talking.

DR. GARVEY: You guys need a

microphone in here.

THE REPORTER: I know.

HEARING OFFICER: Just for clarity,

this is attachment 3 to Exhibit 16 of prefile

testimony of Dr. Garvey. Thanks.

11 BY DR. GARVEY:

A. Yeah, I could check real quickly, but

13 I think it was every 30 minutes.

14 BY MR. ETTINGER:

Q. And looking at the one here that says,

16 I think, Vermillion River, it's the third one of

17 these charts, dissolved oxygen, and...

MR. HARSCH: Vermillion River near

Danville.

MR. ETTINGER: Yeah, I couldn't read

it.

22 BY MR. ETTINGER:

Q. The Vermillion River near Danville?

A. Yeah.

0135

Q. Looking at July -- early July, we

2 see -- what is that represent? You've got a sort of

3 blue blur here that goes off the way from 20 to

4 zero?

A. Showing huge daily fluctuations in

6 dissolved oxygen. If you were to break this down on

7 a daily basis, it would fluctuate from -- well,

8 early July, it would fluctuate from here to zero all

9 the way to 20 milligrams per liter.

I'm speculating here because it's

11 been a while since I've actually looked at the data,

12 but a level with zero probably occurred concrete on

13 20, which was probably sometime midday during the

14 full sun.

Q. And what would cause it to fluctuate

16 20 milligrams per liter in a day?

A. I actually, again, haven't looked at

18 the hydrograph in a long time, but I would presume

19 that it probably was a low period, and at height

20 there was enough biological oxygen demand to take

21 all the oxygen that was produced during the day by

22 the primary producers --

(Cell phone ringing.)

0136

1 BY DR. GARVEY:

A. So anyways, the Vermillion River --

THE REPORTER: I need to move closer.

HEARING OFFICER: Off the record.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER: We left off with

Mr. Ettinger's question of what would cause

it to fluctuate 20 milligrams in a day, and

Dr. Garvey started to answer that when we got

cut off. So Dr. Garvey, if you wouldn't mind

just restating your answer to that question.

DR. GARVEY: Well, I could answer I

don't know for sure, but given the time of

the year probably a combination of warm water

holding less oxygen, and then there's

probably a lot of algae and plants, aquatic

plants and that kind of thing, and also the

microbes in the water probably influencing

it, and like I said before, I hadn't looked

hydrograph in a while. So I'm not sure if it

was a low flow period during that time, but

certainly that could be important in

influencing the oxygen demand in that

0137

particular stream region.

2 BY MR. ETTINGER:

Q. Looking at the fifth page under stream

4 lift, it's under stream list of Dr. Garvey's prefile

5 testimony. Of these -- we have a sentence here

6 which is towards the end of the paragraph called

7 stream list.

A. Okay.

Q. It says, of these, IEPA has noted that

10 about 30 segments within the streams are currently

11 listed for aquatic life use impairment due to low

12 dissolved oxygen.

A. Yes.

Q. Is that what we were talking about

15 before?

A. What do you mean talking about before?

17 I don't understand.

Q. I'm sorry. We discussed earlier, I

19 believe, some DNR streams that were identified by

20 DNR as having --

A. Yes.

Q. -- some dissolved oxygen sensitive

23 species present?

A. Right. Their criteria was -- it was

0138

1 it five for tributary and 7 dissolved oxygen.

MR. STREICHER: No, it was 4 for

tributaries and five for means.

4 BY MR. GARVEY:

A. In other words, those dissolved oxygen

6 sensitive species of the list of which is -- I could

7 give that to you off this (indicating), but it came

8 from -- more or less from the Rankin report, and

9 also -- if I understand right, it also came from

10 just folks thinking that those were sensitive DO

11 species. They were present in segments that were

12 not attaining their aquatic life use designation,

13 and DO was listed as the impairment cause, if I

14 understand correctly, and some of those -- well,

15 several of those segments were the Fox River, Poplar

16 Creek, Sugar Creek, Indian Creek, the Embarrass

17 River, Spring Creek. So there's a list of those 30.

Q. Is it you are understanding that IEPA

19 lists causes for impairments as opposed to potential

20 or possible causes for impairments?

A. I do not know that and the person in

22 the room who might be able to answer that best is

23 Bob Mosher, would probably be able to answer that,

24 not to put him on the spot.

0139

Q. He's not sworn in, and he's not

2 looking.

A. He's nodding his head.

Q. Yeah, he's smiling. Do they look --

A. Wait here. On the top -- Bob's

6 sending me telepathy. It's on the top of the thing.

7 These are the three criterias by which they came up

8 with the list, located in the water --

HEARING OFFICER: I hate interrupting

you, but they came up with the list, this is

DNR's list?

DR. GARVEY: IEPA's. IEPA, via Bob

Mosher and whoever in the minions of IEPA put

this thing together at the request of IAWA.

Okay?

HEARING OFFICER: Okay.

DR. GARVEY: And this list is

generated. This list of 30 stream segments

that have the DO sensitive species but are

currently not -- yeah --

MR. STREICHER: Not meeting --

DR. GARVEY: Not meeting the --

MR. STREICHER: -- dissolved oxygen --

DR. GARVEY: -- dissolved oxygen --

0140

MR. STREICHER: -- standard.

DR. GARVEY: Which is --

MR. STREICHER: This is the list I

referred to earlier in my answer to Albert on

a list that was developed in the stakeholder

meeting as a, quote, compromise on rivers

that may maintain the old or existing DO

standard versus the new proposal.

DR. GARVEY: Yeah, the five six.

HEARING OFFICER: And I had understood

that that was the list that DNR was

compiling. Are there two different lists

here or --

DR. GARVEY: DNR compiled a list of

streams on main segments, tributaries and

main stems, and then IEPA looked at that

list, and said, okay, we're going to look at

this, and first, we're going to look and see

what discharges are present on these IAWA

facts, but also look and see which ones are

currently listed as impaired and as in

cause. The potential cause is DO, and as I

was trying to get to --

HEARING OFFICER: Thank you.

0141

DR. GARVEY: One, located in the

watershed of any for 40 high DO streams.

That's 40 streams we're talking about. Two,

at which aquatic life use is not fully

obtained, i.e., impaired as of April 1st,

2004, and three, in which low dissolved

oxygen has been identified as a potential

cause of aquatic life use of air. So that

was that list of 30 segments.

MR. RAO: Is this part of the record

now, or are you just referring to this?

DR. GARVEY: It's not part of the

record.

MR. ETTINGER: Well, he's testifying,

so it becomes part of the record by virtue of

him saying it, and you're now reading a

portion of an IEPA document.

DR. GARVEY: Yeah.

MR. RAO: No, what I was asking was it

entailed that -- you know, a list -- a

contents of lists that.

DR. GARVEY: Well, it was in Thomas's

testimony.

HEARING OFFICER: I guess the question

0142

is, obviously, the Board would like to see

the list, as I understand it.

DR. GARVEY: Yeah.

HEARING OFFICER: DNR did not --

MR. ETTINGER: We'll withdraw it from

the record. Keep a copy so you can go ahead

and look at that list --

MS. MOORE: You can only look at the

list.

MR. ETTINGER: You can only look at

it, but you can't use it.

MR. GIRARD: Albert, you said that

you're going to reintroduce it because you

referred to it in your testimony. So you

will have -- that's the question I wanted to

ask, will we have a copy of this list?

MR. ETTINGER: May I reintroduce that

as Sierra Club exhibit, whatever it is, as

the document that we reference -- or that

Prairie Rivers references, and it's August

23rd, 2005.

MR. HARSCH: You're introducing it for

the limited purpose of clarifying what you're

referring to in your prefiled testimony?

0143

HEARING OFFICER: It's public comment

number 81, I think, and that's the Sierra

Club and a number of other environmental

organizations, their public comments.

MR. ETTINGER: Yes, and so what I'm

doing is, I will either through a separate

filing or if you would prefer an amended

filing of our public comment, I am submitting

an Exhibit 1 to that public comment that will

consist of what used to be Thomas prefiled

testimony.

MR. HARSCH: My question is, is that

for the limited purpose of identifying what

you referred to in that prefiled comment --

or that public comment?

MR. ETTINGER: This is really getting

complicated here.

MR. HARSCH: Yes, it is.

MR. ETTINGER: All I want is for

people to see the document, and yes, it's for

whatever limited purpose you want, and if

some deranged minds go and read it for some

other purpose, I guess I just can't stop

them.

0144

MS. WILLIAMS: Can I point out -- can

I just point out for purposes of the record

that counsel for the department is not -- no

longer in attendance at the hearing, just for

the record. I mean, I don't know whether

they would have an opinion one way or the

another, but I just want the record to

reflect that they're no longer represented.

MS. MOORE: That's right. They left.

HEARING OFFICER: I appreciate you

pointing that out. Yeah, their motion to

withdraw has been granted, and counsel for

DNR is not present currently. At this point

in time, though, prefiled testimony of Dave

Thomas with it's various attachments is out

in the public domain and Mr. Ettinger is

suggesting that it will be an attachment to

public comment 81. Are you moving to have

that entered as a hearing exhibit now, or are

you going to file that and serve it as a

amended public comment?

MR. ETTINGER: No, actually, as I

think of this, this is -- I better introduce

it as a hearing exhibit as mentioned by,

0145

since it was referred to by Dr. Garvey, and

was earlier mentioned by DNR. I'm moving it

as a hearing exhibit, and I'm not offering it

for any particular purpose other than for

clarifying the record and allowing people to

understand what we've been referring to in

the course of this. Okay?

HEARING OFFICER: Is there any

objection to that?

MR. HARSCH: We're dancing on the head

of a pin here. I do find it a little strange

that we grant the DNR motion this morning to

exclude it, withdraw it, and DNR counsel, who

was perhaps in reliance on that, is not in

attendance to talk about it.

To the extent it is introduced

only to the points of clarification,

Mr. Streicher is not introducing it for

the -- but providing any technical evidence

to support it or solely for identification

purposes to clarify what we've been referring

to, I guess I don't have any objection.

MR. ETTINGER: Well, actually, now

that I think about it, I'm being too nice.

0146

Dr. Garvey, did you rely on that list in

formulating your testimony here?

MR. HARSCH: That's a different than

the testimony. That's a different

question --

MR. ETTINGER: Well --

MR. HARSCH: -- because the testimony

includes a lot of points other than just the

list we're talking about.

MR. ETTINGER: Okay. I'm sorry. Can

we go off the record?

HEARING OFFICER: Off the record.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER: Mr. Ettinger, if you

could just -- it sounds like you're not

moving to have --

MR. ETTINGER: Do we have the actual

document?

HEARING OFFICER: Excuse me. If I

could finish. You're no longer moving to

have Dr. Thomas's prefiled testimony entered

as a hearing exhibit, would you go ahead and

state what the current motion is and what

0147

motion you'd like to make now?

MR. ETTINGER: Off the record again.

Roy, do you have the -- what Cindy

tells me is an IEPA marked up version of the

Thomas list, is that what you're proposing

we're going to put in here?

MR. HARSCH: No. Are we off the

record?

HEARING OFFICER: No, we're on the

record.

MR. HARSCH: Mr. Ettinger, I think

you're referring to introducing into this

record for purposes of clarification given

the fact that Dr. Garvey and Mr. Streicher

have referred to it, which would be the list

of 40 streams or stream segments that DNR has

put together, and I believe this is it,

right, it's this document (indicating)? This

document, which is table two. And we have

asked -- as Dr. Garvey testified to, IAWA

asked IEPA to identify those segments -- or

stream segments that are impaired, and those

are two separate lists. One prepared by DNR,

and one prepared by IEPA. We have a

0148

marked-up version of the impaired list that

I'll gladly substitute an unmark for the

record. They're here if you want to look at

them. Do what you want to do in terms of

introducing them.

MR. ETTINGER: Well, I would move that

we enter the one that we can enter now into

the record at this point, and the one that's

marked up, we will agree to enter into the

record, but Mr. Harcsh will substitute a

clean copy at a later time.

HEARING OFFICER: So we've got two

hearing exhibits here, and we've got a

witness who has testified to -- I don't want

to take things as hearing exhibits unless the

witness has testified to it or is here today

to testify about it now.

MR. HARSCH: No. These are the

documents, Dr. Garvey, that you've referred

to in your testimony?

DR. GARVEY: Yes.

HEARING OFFICER: Okay. Thank you.

DR. GARVEY: Which the entire

stakeholder group is privy too. They've all

0149

seen it.

MS. DIERS: Hey Roy, I'm sorry, can we

see this list that is marked up that I guess

EPA did?

HEARING OFFICER: Off the record for a

moment.

(Whereupon, a discussion

was had off the record.)

MR. HARSCH: After conferring with EPA

personnel, they do not have the -- they have

not have the ability today, apparently, to

verify that this is in fact the document that

we received from IEPA, and based on that, I

can't agree to its introduction. Albert, I

don't have any problem with your introducing

the list of the 40 stream segments, if you

would like to do so, but if IEPA can't verify

that that's the document, I can't

independently do it. I can't agree to it.

HEARING OFFICER: Assuming this

rule-making goes forward, there will almost

certainly be another opportunity to get the

verified IEPA list into the record at a

hearing as a hearing exhibit. So why don't

0150

we just focus on what we can introduce

without objection at this point, and that's

the DNR list?

MR. ETTINGER: Which is table two now

incorrectly the testimony of David Thomas.

HEARING OFFICER: So this was part of

the prefiled testimony --

MR. ETTINGER: This is one part of the

prefiled testimony.

HEARING OFFICER: -- that was

withdrawn by DNR?

MR. ETTINGER: We're introducing this

table two as the DNR list that was circulated

in the stakeholder process.

MR. HARSCH: And I think I asked the

question of Dr. Garvey if that was the list

you were referring to; correct?

DR. GARVEY: Correct.

HEARING OFFICER: So that would be

Exhibit 17. Any objection to entering that

as a hearing exhibit? Seeing none, that will

be hearing Exhibit 17. Off the record.

(Whereupon, a discussion

was had off the record.)

0151

HEARING OFFICER: Back on the record.

MR. ETTINGER: Have you, as part of

your study, looked at the effects of

dissolved -- low dissolved oxygen levels on

microinvertebrates and macroinvertebrates.

DR. GARVEY: Well, we have covered

that in our report, but that was Whiles

specialty, and he's primarily responsible for

that portion of the report.

10 BY MR. ETTINGER:

Q. And has anyone looked at -- as part of

12 your report, was there testimony on the effect of

13 dissolved oxygen levels on mussels?

A. There was a section on that, and it --

15 well, it -- yeah.

Q. Go on.

A. No, go ahead.

Q. Did you look at any waters in the

19 northern portion of the state that were not

20 impaired?

A. In -- in -- I guess you need to

22 clarify that in more detail. Look at -- I mean

23 what?

Q. Did you look at -- you looked at Lusk

0152

1 Creek, for example, and found low DO levels there,

2 and Lusk Creek is not an impaired water. I was

3 asking whether you had done a similar exercise for

4 any high quality streams in Northern Illinois?

A. No, from the perspective of looking at

6 the Terrio analysis, nothing equivalent to Lusk

7 Creek, no.

Q. And actually, the only water you

9 looked at north of I-80 was DuPage or Salt Creek?

A. We looked at Salt and Mayzon. It's up

11 there, isn't it? I'm not sure. My geography is

12 bad. Yeah, Apple River would be real useful in

13 something like that.

Q. Looking at Exhibit 7 of your tables

15 here.

HEARING OFFICER: This is attachment 7

Exhibit 16.

MR. ETTINGER: Attachment 7 regarding

testimony, which I believe is Exhibit 16.

HEARING OFFICER: Yes.

21 BY MR. ETTINGER:

Q. Looking at a number of these boxes in

23 these areas, it appears that at least some years

24 much or most of the reproduction or spawning

0153

1 occurred in August; is that not true?

A. July and August. Actually, it more

3 looks like it was July. There's very few here. So

4 I'd say if I had to count the number of the years

5 out of all of them where most of the spawning

6 occurred, probably two. Two out of the multiple

7 years.

Q. Well, let's count those. We got --

9 looking down the left column, we've got 91 and

10 that's in Clark. Stonelick we've got 88. That's in

11 August; right?

A. I'd say probably about 50 percent of

13 the spawning occurred prior to that.

Q. There is this peek here that seems to

15 be occurring?

A. There is a peek of sunfish that were

17 spawn. That's pretty typical to see if you have two

18 or three spawning species through the season.

Q. Really? And then in 91 in Stonelick,

20 I don't quite understand this chart. It flattens

21 out at the top. Does that mean it went off the

22 chart?

A. Yeah, it's off the chart. That means

24 that it was very high at the time.

0154

Q. 91?

A. A lot of the variation. Yep, 91.

Q. And then looking at Kokosing in 91,

4 there's like -- there's peeks over in May, and then

5 another peek over in August?

A. One late peek in August. Yeah, I

7 guess it is in September.

Q. That's in September?

A. Yeah. Well, we note, and I've

10 mentioned this in testimony that sunfish spawn

11 potentially through October -- well, through

12 September to early October. That will happen. I'm

13 also saying it's not the majority of the time, and

14 the reality, if you take the average of all these,

15 it would be about 50 percent of the spawning occurs

16 at least before July on average.

Q. Now, are you counting bluegill as a

18 sunfish?

A. Yeah, it's a sunfish. Bluegill is a

20 Lepomis. That's the genus it's in, which is a

21 sunfish. Again, I know that exceptions exist, but

22 we've got to understand that what we're trying to

23 manage is probably more for the average rather than

24 the exception.

0155

Q. Looking in your -- you had a lot of

2 testimony in other hearings, earlier hearings, about

3 various recommendations that you and Dr. Whiles made

4 as your original report as to how the standards

5 should be implemented. Is there anything in that

6 earlier testimony that you wanted to revise now or

7 feel is no longer correct?

A. Not off the top of my head.

Q. I take that back. I may have

10 misspoke. Are there any of those early

11 recommendations that you want to take back or think

12 are unwise in light of --

A. In terms of implementation?

Q. Yes.

A. The only thing I can think of is the

16 differential timing spawning due to -- might be a

17 reasonable way of taking into account seasonal

18 differences in spawning.

Q. Would be that July 15th versus

20 July 1st?

A. Yeah.

HEARING OFFICER: Just a reminder,

everybody would just please speak up so we

can hear in the back.

0156

MR. ETTINGER: Thank you.

DR. GARVEY: Thank you.

HEARING OFFICER: So Mr. Ettinger has

concluded his questions at this point in

time?

MR. ETTINGER: Correct.

HEARING OFFICER: Are there any other

persons who have questions for IAWA's

witnesses?

MR. HARSCH: I have a couple of

clarifications.

12 BY MR. HARSCH:

Q. Dr. Garvey, in reviewing the Ohio

14 data, my understanding is that data -- I want to ask

15 you about 24-hour composites and grab samplings

16 during the day?

A. Yes.

Q. Would those grab samplings during the

19 day tend to miss a lower dissolved oxygen

20 concentration that those streams would have

21 exhibited?

A. Right. It might be actually be on

23 average higher because of what we saw with the

24 Vermillion River, diagonal streams.

0157

Q. And it's your understanding that those

2 streams -- a number of the streams in Ohio that have

3 been designated as AWR, in fact, don't comply with

4 the standard that Ohio has opted for?

A. I, of course, can't give you the exact

6 number, but there are a few exceptions.

Q. From review the data?

A. Yes.

10 BY MR. HARSCH:

Q. Mr. Streicher, in your response to the

12 question of Mr. Ettinger regarding what would be the

13 impact of the adoption of the IAWA proposal in terms

14 of the impact on Salt Creek. Isn't Salt Creek --

15 the data included in Salt Creek in Exhibit 3 of

16 Dr. Garvey's testimony?

A. Yes, I had forgotten that there was

18 some continuous DO monitoring done on Salt Creek in

19 the southern section.

Q. And if the IAWA proposal were to be

21 adopted by the Board, doesn't that data show less

22 violation?

A. It shows fewer dissolved oxygen

24 violations.

0158

Q. And the data that you referred that

2 you were well aware of recent continuous dissolved

3 oxygen sampling performed by the Metropolitan Water

4 Reclamation district in the City of Chicago?

A. Yes, they performed that earlier this

6 summer.

Q. That's all. Thank you.

HEARING OFFICER: Does anyone else

present in the audience have any questions

for any of the IAWA's witness?

MR. ETTINGER: I just want to clarify

the record.

HEARING OFFICER: Go ahead, Mr.

Ettinger.

15 BY MR. ETTINGER:

Q. I'm sorry. You mentioned Metropolitan

17 Water Reclamation District data?

18 BY MR. STREICHER:

A. Yes.

Q. Is this something that has been

21 published?

A. It has not been published. It was

23 shared with me by one of the district employees,

24 Dick Laney (phonetic).

0159

Q. And it was a study done by the Water

2 Reclamation?

A. It was the results of continuous

4 dissolved oxygen monitoring at two sites on Salt

5 Creek in Cook County, the northern regions of Salt

6 Creek.

Q. Thank you.

MR. RAO: I have a follow-up.

HEARING OFFICER: Were you finished,

Mr. Ettinger?

MR. ETTINGER: Yeah.

MR. RAO: Dr. Garvey, page three of

your prefiled testimony you state that since

the last hearing more data was provided for

streams in Illinois. Can you please explain

what kind of additional data was provided,

who provided these data and how the data was

used in your evaluation? The reason I ask

this question is, we keep talking about new

stuff in data every few minutes. So I just

want to make sure we know what this data

involved and where it's coming from, and if

possible, at a later date, if you can provide

that information into the record?

0160

DR. GARVEY: True enough. More data

was provided the streams of the Midwest,

which I primarily was talking about the

Rankin and the Ohio EPA data. Okay. And

when I said primarily from Illinois, you

know, I think I was talking primarily about

the continuous monitored streams and the

reanalysis of that. I think that was a

misleading statement in my testimony. Of

course, I have in the back of my mind also

the data that my students have collected and

those sorts of data. I also got a little bit

of data from IDNR relative to catfish,

spawning, those sorts of things. I think

that's primarily what I was talking about.

There's also some data that I

don't think is permissible to actually say,

but IEPA has provided some snip-its of

preliminary data that I've seen in the

stakeholder meetings, but I'm not sure if I

should talk about that here.

MR. RAO: That's fine. If you provide

it later, that should be okay. Thank you.

HEARING OFFICER: Just one follow-up

0161

question. On attachment 7 to Dr. Garvey's

prefiled testimony on Exhibit 16, Clark

Stonelick and Kokosing, are those lakes?

DR. GARVEY: Yes, they're small stream

impoundments. I think most of us are

probably familiar with this fact, but the

reality is, is that very, very few lakes in

Illinois or the Midwest, for that matter, are

natural. They're all impounded. They live

in generally a stream dominating part of the

world, and so whenever we talk about lakes,

these are mostly manmade structures that

we're talking about.

HEARING OFFICER: And there's

reference to shad and bluegill. The copy

I've got is not in color. I'm not sure.

DR. GARVEY: Yeah, it wasn't a color

graph.

HEARING OFFICER: It was?

DR. GARVEY: No, it was not.

HEARING OFFICER: It was not. How do

you tell which was --

DR. GARVEY: One is a broken line and

the other one --

0162

HEARING OFFICER: Oh, it is.

DR. GARVEY: It might not have been

copied correctly. The broken line I believe

is bluegills, and the solid line is shad, but

I should take a look at it.

HEARING OFFICER: I think I can see

that.

DR. GARVEY: I can tell you right now

that Clark Lake, even though I don't have the

DO data here, routinely, routinely, went

below 4 milligrams per liter in an

epilimnion, and we still have communities of

gizzard shad and bluegills and other

sunfishes in that particular system year

after year.

HEARING OFFICER: Thank you.

MR. GIRARD: I have a clarifying

question to the attachments. Dr. Garvey, in

your testimony what we called Exhibit 16

attachment 3 has all those continuous DO

measurements, and all the different stream

segments.

DR. GARVEY: Okay.

MR. GIRARD: And I notice at the top

0163

we've got two different data numbers one is

an IEPA data number. One is a USGS data

number or data set, I guess, but the

information, was it just taken with one

continuous DO monitoring piece of equipment,

or was it that both organizations have their

own equipment out there and --

MR. GARVEY: My understanding is that

there is one unit, if I understand right,

funding primarily came from the joint effort

between USGS and IEPA, but IEPA I think

maintained a lot of these and put them out,

and it was just one unit that was regularly

maintained, and I can tell you that that was

a substantial amount of person time and cost

to keep these things running out there. They

also went through a very strict data, like a

cleaning exercise to make sure that the data

that are presented here they're pretty darn

sure that they are the actual values of that

particular stream segment. So they went

through some process by which they cleaned up

the data.

MR. GIRARD: So there's one set of

0164

data, and if you went to the Illinois EPA

site or the USGS site, you would find --

DR. GARVEY: It's the same data

settings. It's the same data.

MR. GIRARD: Thank you.

MR. HARSCH: For clarification, the

photographs in Exhibit 3, you understand to

be the photographs from where the sample

location was?

DR. GARVEY: Yeah, that was Paul's

attempt to give us a better idea about what

site because it was very hard to characterize

it as a riff or a pool area.

HEARING OFFICER: Just another

question on attachment 3. We're all seeing

this for the first time today so we certainly

have some follow-up questions. Could you

just briefly explain what scenario one and

two and an then IAWA scenario, and then

within that there's IAWA seasons and IDNR

seasons; can you explain what means?

DR. GARVEY: Just a little bit of

background. This occurred during maybe

halfway through a little bit further of the

0165

stakeholder process, and we asked Paul to

provide us with this analysis.

HEARING OFFICER: I'm sorry. Who?

DR. GARVEY: Paul Terrio.

HEARING OFFICER: Thank you.

DR. GARVEY: To help us to make a

decision, and at that time, we were talking

about potential differences in seasons, and

IAWA had one idea about what the seasons were

supposed to be, and IDNR was coming up with a

different set of seasons. If you can see

here, the primary difference is that IAWA

seasons was mid-July through February for the

nonsensitive season, and the rest would be

the sensitive season, and the IDNR season was

mid-August for the nonsensitive season

through February, and then March through

August for the sensitive season. So they

were trying to extend that period of time

that we expect to see early life history

stages full month ahead of what IAWA was

proposing. So we were playing around with

those scenarios.

The current standard just

0166

simply -- if I understand correctly what Paul

did, current standard, just how many times

did one of those 30-minute measurements of DO

go below the daily minimum of 5 milligrams

per liter. For scenario one it was just, if

I understand right, daily minimum of five and

then the potential for a 7-day mean minimum

of 6 year round, and that just showed the

number of days that the DO reading went down

below that point, and my understanding is he

was trying to mimic the Ohio perception

exception of water standard.

HEARING OFFICER: With scenario one?

DR. GARVEY: Scenario one.

With scenario two, if my

understanding is right, is that we were

tweaking or he was tweaking whether we have

an exceptional water -- warm water habitat

scenario five and six during the nonsensitive

season, and then to make it, I think,

equivalent to what we would have for a cold

water group of species of six and seven

during the sensitive season when the early

life history stages are. So that shows the

0167

number of the violations that would occur

there.

The IAWA scenario is what IAWA

proposed via the Garvey and Whiles report,

which is the nonsensitive season being

3.5-milligram per liter minimum, and we're

all familiar with those proposed standards.

The only difference between the two is the

IDNR with the August 16th, and IAWA had the

July 16th analysis.

My analysis that I gave the second

hearing very similar to this IAWA scenario

one, except for I didn't have a July 16th

cutoff. I had a July 1st cutoff for my

analysis. So that's the primary difference

between what Paul did and what I did, little

differences, but not much.

HEARING OFFICER: Very helpful.

MR. GIRARD: I hate to keep beating on

this attachment 3, but --

DR. GARVEY: Yeah, it's a very

important attachment.

MR. GIRARD: I do have another

question on this, and I don't know if you can

0168

do it, Dr. Garvey, or if you can get the EPA

or someone else, but I just wonder, to flesh

out the record here, if someone could dig up

the other physical information on those sites

that probably is somewhere in the report

going along with this, but I'm not talking

about other, you know, chemical data, but

other physical data pertaining to where these

DO measurements were made, you know,

including something like depth and some of

these other physical characteristics of those

habitats I think would be very helpful.

DR. GARVEY: Much of it will be in

this exhibit that I filed. The report by

Gleason and King, which is the Paul Terrio

data that was published. So this would

provide that information, and then --

HEARING OFFICER: Is that attachment

two to Exhibit 16?

DR. GARVEY: Yeah, it's an attachment

to my testimony. So reading that would give

you a little bit more information about just

what the sites look like, what the general

characteristics are, and it's pretty good

0169

detailed, you know, description. So it

should give you an idea of what these sites

looked like.

MR. GIRARD: Do you have flow rates

and probe placement?

DR. GARVEY: They do provide

information about the probe placement, and

more or less what they wanted to do was make

sure that even at base flow or below base

flow that the probe was still under water.

So it was sufficiently deep, I would say, at

that level, if I understand correctly. That

was what influenced the probe placement in

terms of depth. But these pictures were to

give you some idea about what the site looked

like, I think, at a relatively high flow and

low flow period, so...

HEARING OFFICER: And as Anand Rao

just reminded me, I think IEPA mention

earlier that Paul Terrio would be provided as

a witness assuming we have another hearing at

some point?

MS. WILLIAMS: Absolutely.

HEARING OFFICER: So we can follow-up

0170

with him then as well.

DR. GARVEY: Yeah. IEPA has another

continuous monitoring data that has come to

bear that I also failed to mention that to

you, and it might be wise for them to conduct

a similar analysis. I don't think -- I think

it was only for 72-hour periods. It wasn't

for an entire two-year period, but to do

some -- some analyses similar to that.

Looking for violations would probably be

helpful to the Board as well. So that might

be something requested by EPA.

HEARING OFFICER: We'll let IEPA think

about whether they'd like to do that. It

sounds helpful. Any further questions for

any of the IAWA's witnesses? Seeing none,

why don't we go off the record.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER: We're now going to

continue with the prefiled testimony. First,

is Todd Main the director of Policy and

Planning of the Friends of the Chicago River.

Will the court reporter go ahead and swear in

0171

Mr. Main?

(Witness sworn.)

HEARING OFFICER: Thank you for being

here today, Mr. Main. Thanks for waiting.

It's so late in the afternoon. I have asked

you to provide a summary of your prefile

testimony, which I understand you're prepared

to do, and in fact, you have actually

prepared a written summary that you're going

to read, a summary of your prefiled testimony

that may also include some additional

information; is that correct?

MR. MAIN: Yeah, some additional.

HEARING OFFICER: Okay. Why don't you

go ahead -- seeing there's no objection to

that, I'm going to ask Mr. Main to go ahead

and read the prepared statement that he has

here.

MR. MAIN: And actually, in the

interest of brevity, I'm going to actually

make it a very brief summary because we've

been here a long time and a lot of things

have changed. Good afternoon. I want to

thank you for the opportunity today. My name

0172

is Todd Main. I'm the director of Policy and

Planning for the Friends of the Chicago

River. For the past 25 years our mission has

been to foster the vitality of the Chicago

River for the plant, animal and human

communities within its watershed. While

we're new to this process, we have a long

track record, and I'm here today representing

the interest of our 2000 members in the

Chicago area.

Friends of the River has serious

and substantive reservations about this

proposal, and we urge the Illinois Pollution

Control Board to reject this proposal and

making it until further study and establish

that the reduction of dissolved oxygen levels

will not harm aquatic life in the Illinois

surface waters. We're very concerned about

the impact that the proposed standards have

had on the reproductive cycles particularly

the refresh water mussels and late spawning

fish, which we've discussed quite a bit

today.

For the past three years, the

0173

Friends of the River and their partnership

with Shedd Aquarium has conducted a fresh

water mussel survey in the Chicago River.

Our survey has documented the presence of

mussels in multiple locations in the river.

Research has shown that unionid mussels,

which have been found in the north branch are

specially threatened because they require

host fish for reproduction. Only about

25 percent of the host fish for the mussels

in the U.S. have been correctly identified.

So it's difficult to predict the impact that

human activity has, as clearly the diversity

has helped. The fish populations within the

river will -- the river system will effect

the reproductive success of these mollis

species. For example, long-term breeders

spawn and fertilize eggs in the late spring,

summer and early fall, as we have heard

today, producing muriatic leucadia by late

fall winter, or the leucadia may not be

released until late spring or early summer of

the following year. The contrast short-term

breeder spawn, fertilize eggs, develop and

0174

release leucadia from late spring to early

fall. It is difficult to accurately

determine when low dissolved oxygen levels

would be safe because reproduction of the

species is sensitive at various different

stages.

In order to the protect the

current populations and ensure their survival

and reproduction, we need to ensure that the

Illinois rivers can provide habitats to

support their complex and sensitive life

cycle. Fresh water mussels are especially

vulnerable to habitat disturbance. Of the

unionid mussel species native to Illinois,

more than half are currently threatened,

endangered, extricated or extinct.

The second point that we want to

raise is that we think that -- we agree that

the current regulatory model has some flaws

in it. I think that's a consensus, and I

think people agree on that, but we also think

that this proposed solution suffers from some

of those same kind of things because it also

appears to be a one-size-fits-all approach to

0175

the problem. And we're very concerned about

the strategy that we're proposing here, and

we think that we need to move more of a tier

system approach, very similar to what's been

discussed with Ohio model. We're very

concerned because in that model there appears

to be no opportunity for backsliding of

standards.

When streams are shown to be

nonattainment, then actions are taken to

bring them up to the standard, and so then

over time, water bodies will improve in

quality, and I think that's the direction we

want to be going in. We think that this

proposal doesn't do that. In fact, we also

agree that people shouldn't debate the facts.

Okay. We can debate opinions, but the facts

are the facts, and the fact is that when you

lower the dissolved oxygen standard, at the

end of the day, you have lowered the

dissolved oxygen standard. That's a fact.

That's not a debate. And so we would hope

that Illinois, given its position in the

greater region, would be a leader in adopting

0176

regulatory models that promote healthier

waters over time. Thank you.

HEARING OFFICER: Thank you, Mr. Main.

I'll open it up for questions. The Board has

a few questions for Mr. Main, but I'll open

it up to the audience first. Deborah

Williams, counsel for IEPA?

MS. WILLIAMS: I just had one quick

area of questioning that I think may -- your

testimony at least to me is a little

confusing for the Board. Can you just

clarify for

us -- not all portions of the Chicago River

are impacted by the proposal before the

Board, are they?

MR. MAIN: True.

MS. WILLIAMS: Can you explain a

little bit?

MR. MAIN: The portion of the Chicago

River now is going through a UAA process --

HEARING OFFICER: Could you explain

what that is?

MR. MAIN: Use attainability analysis

to discover -- or to redefine the use

0177

standards, and so the portion of the Chicago

River that we are concerned about that is

impacted by this proposal concerns the area

of the river that is north of Clark Park

where the Skokie and the Middle Branch and

West Fork all come together, right in there,

and that's actually the area where most of

our mussel survey has been done. So that's

our reason.

MS. WILLIAMS: Okay. Thank you. I

think that clears it up quite a bit.

Well, is it correct that most

portions of the Chicago River where they're

south of where you're talking about are

subject to secondary contact warm quality

standards at this time?

MR. MAIM: Well, that's actually what

the UAA process will determine. The area

that's under the UAA is sort of the north

channel -- the north shore channel all the

way down through the city and then out past

Bubbly Creek.

MS. WILLIAMS: Thank you. That's all

I have.

0178

HEARING OFFICER: Any further

questions for Mr. Main?

3 BY MR. HARSCH:

Q. What's your educational background?

A. I have an undergraduate degree in

6 international relations and business from Michigan

7 State.

Q. So you don't have a technical

9 background?

A. I do not have a technical background.

Q. You're not a biologist?

A. No.

Q. You're not an ecologist?

A. I'm not an ecologist.

Q. Have you read the entire record?

A. I think I read most of it.

Q. Can you explain how the adoption of

18 the IAWA proposed dissolved oxygen standard would

19 result in the lowering of the dissolved oxygen level

20 in the north branch of the Chicago River?

A. Well, my understanding is that the

22 proposal is to lower it -- lower the standard in the

23 period of the late summer through February.

Q. How would it physically result in a

0179

1 lower dissolved oxygen level in the river?

A. Well, I think it would lower the

3 standard criteria standard.

Q. And that's different than actually

5 having a physical lowering of dissolved oxygen level

6 in a river?

A. True.

Q. And that's something that

9 Mr. Streicher testified about this morning.

In your prepared testimony, you

11 referred to dissolved oxygen levels being

12 dramatically impaired in the Chicago River due to

13 confined sewer overflows, and you attribute

14 lowering, I assume, the standard somehow would

15 impact that. How would a change in the standard

16 impact the application of the current rules

17 requiring substantial work be done on combined sewer

18 overflows?

A. Actually, let me clarify that. We

20 filed the initial comments. We looked at -- we were

21 operating on an understanding that this would effect

22 the entire Chicago River System, and so those

23 comments are directed to the CSO issue. We have

24 changed and taken that out of our summary that we're

0180

1 testifying today.

Q. So that should be excluded from --

A. Right.

HEARING OFFICER: Let me make sure I

understand that there was a statement in the

prefiled testimony that --

MR. HARSCH: It would be point 2 on

page 2, I understand.

HEARING OFFICER: And it's the --

Mr. Main, it's your testimony now that what,

I'm sorry, you're changing that position?

MR. MAIN: Well, the first thing, we

used data -- it was all about NWRD data from

Bubbly Creek and some other areas that were

dramatically effected by the CSOs. That's

not subject to this hearing, and so we

withdraw those points.

HEARING OFFICER: Thank you.

MR. HARSCH: And point number 4 on

page 3, my understanding that the portions of

the north channel you're concerned about

currently do not make current standard

presumed time; is that your testimony?

MR. MAIN: (Indicating.)

0181

HEARING OFFICER: The answer is yes?

MR. MAIN: Yes.

3 BY MR. HARSCH:

Q. Despite the fact that the current

5 standard is not being met 50 percent of the time, is

6 it your testimony that the fish species and wildlife

7 have improved dramatically in this stretch?

A. The health of the river has improved

9 dramatically all through the watershed.

Q. I know you're not a scientist, but

11 what level of dissolved oxygen would you expect the

12 north channel of the Chicago River to achieve and

13 what time frame?

A. I don't know that that's our role to

15 give you an answer to that question. Actually, I

16 would defer to the people who have the scientific

17 training and the ability to develop those answers

18 and present their testimony. So we're speaking from

19 a policy perspective and not a scientific

20 perspective.

MR. HARSCH: No further questions.

HEARING OFFICER: Any further

questions for Mr. Main? The Board had just a

couple questions for you, Mr. Main.

0182

Mr. Main, you've mentioned in your

prefiled testimony and today a fresh water

mussel survey on the Chicago River that Shedd

Aquarium and the Friends of the Chicago River

conducted. Do you know whether those results

have been published?

MR. MAIN: The first two years have

been published. This is our third year that

we -- we just finished in August, and then

we'll publish those results, and I would be

happy to share those with the Board.

HEARING OFFICER: We would very much

appreciate that, and ask you to do that.

MR. MAIN: Sure.

HEARING OFFICER: Thank you. Any