IN THE MATTER OF :
O R IL; 'i v A L
BEFORE THE ILLINOIS POI-1-17110,NiON
CONTROL BOARD
RECEIVEDCLERKS
OFFICE
DEC
119
2006
PG.~'~~
Pollution
STATE OF
Control
ILLINOISBoard
PROPOSED AMENDMENTS TO
)
DISSOLVED OXYGEN STANDARD
)
35 ILL
. ADM . CODE 302 .206
)
R04-25
(Rulemaking -
Water)
1
TO:
Ms. Dorothy M . Gunn
Clerk of the Board
Illinois Pollution Control Board
James R . Thompson Center
100 West Randolph Street
Suite 11-500
Chicago. Illinois 60601
December 20, 2006
Stanley Yonkauski . Jr.
Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702
(217) 782-1809
NOTICE OF FILING
(PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have riled today with the Clerk of the lllinois Pollution
Control Board an original and nine copies of the ILLINOIS DEPARTMENT OF NATURAL
RESOURCES POST HEARING SUMMARY COMMENTS, ON THE ABOVE CAPTIONED
MATTER, copies of which are herewith served upon you
.
Respectfully submitted,
ILLINOIS DEPARTMENT OF
NATURAL RESOURCES,
14
Marie Tipsord . Esq .
Attorney
Illinois Pollution Control Board
James R . Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
BY ,C-(M' Vuf\.ftV1
u p11 '~,
One
of-L")
torneys
ORIGINAL
CERTIFICATE OF SERVICE
I Stanley Yonkauski, Jr
., the undersigned, certify that I have served a copy of the
attached ILLINOIS DEPARTMENT OF NATURAL RESOURCES POST HEARING
SUMMARY COMMENTS, upon
:
Ms
. Dorothy M . Gunn
Clcrk of the Board
James R . Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
in person
December 20, 2006 : and upon
(SEE ATTACHED SERVICE LIST)
by depositing copies of said documents in the United States Mail in Springfield . Illinois
on December 20, 2006 .
17
Stan] y onkauski, Jr.
Michael Rosenberg . Esq .
Richard Lanyon
Metropolitan Water Reclamation District
100 East Erie Street
Chicago, Illinois 60611
Matthew Dunn
Office of the Attorney General
188 West Randolph, 20a' Floor
Chicago, Illinois 60601
Roy Harsch
Sheila Deelev
Gardner Carton &Douglas
191 N Wacker Drive, Suite 3700
Chicago. Illinois 60606
John Donahue
City of Geneva
22 South First Street
Geneva, Illinois 60134
N. LaDonna Driver
Illinois Environmental Regulatory
Group
3150 Roland Avenue
Springfield . Illinois 62703
Benard Sawyer
Metropolitan Water Reclamation District
6001 W Pershing Rd
Cicero, Illinois 60650
Lisa Frede
Chemical Industry Council of Illinois
2250 E Devon Avenue, Suite 239
Des Plaines, Illinois 60018
SERVICE LIST
15
James DaugHerty
Thom Creek Basin Sanitary District
700 West End Avenue
Chicago Heights, Illinois 60411
Claire Manning
Brown, Hay & Stephens LLP
205 South 5th Street
PO Box 2459
Springfield, Illinois 62705
Tracy .Elzemeyer
Illinois-American Water Company
535 North New Ballas Road
St. Louis, MO 63141
Katherine Hodge
Hodge Dwyer Zeman
3150 Roland Avenue
PO Box 5776
Springfield, Illinois 62705
Margaret Howard
Hedinger Law Office
2601 South 5 U' Street
Springfield, Illinois 62703
Frederick Keady
Vennillion Coal Company
1979 Johns Drive
Glenview, Illinois
60025
Fred Hubbard
19 West Madison
PO Box 12
Danville, Illinois 61834
W .C . Blanton
Blackwell Sanders Peper Martin LLP
4801 Main Street, Suite 1000
Kansas City, MO 64112
Dennis Duffield
Dept of Public Works & Utilities
921 E . Washington Street
Jolict, Illinois 60431
Larry Cox
Downers Grove Sanitary District -
2710 Curtiss Street
Downers Grove, Illinois 60515
Tom Muth
Fox Metro Water Reclamation District
682 State Route 31
Oswego, Illinois 60543
Stanley Yonkawski
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Erika Powers
Barnes & Thornburg
1 N Wacker, Suite 4400
Chicago, Illinois 60606
Albert Ettinger
Environmental Law & Policy Center
35 E Wacker, Suite 1300
Chicago, Illinois 60601
Todd Main
Friends of the Chicago River
407 S Dearborn, Suite 1580
Chicago, Illinois 60605
1.6
Vicky McKinley
Evanston Environment Board
223 Grey Avenue
Evanston, Illinois 60202
Irwin Polls
Ecological Monitoring & Assessment
3206 Maple Leaf Drive
Glenview, Illinois 60025
William Richardson
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702-1271
Marc Miller
Michael Fischer
Office of Lt . Governor Pat Quinn
State House, Room 214
Springfield, Illinois 62706
Thomas Murphy
2325 N Clifton Street
Chicago, Illinois 60614
Stefanie N . Diers
Illinois Environmental Protection
Agency
1021 North
Grand Avenue East
Springfield, Illinois 62794-9276
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
[N THE MATTER OF :
)
1
PROPOSED AMENDMENTS TO
)
DISSOLVED OXYGEN STANDARD )
35 ILL. ADM. CODE 302 .206
)
R04-25
(Rulemaking - Water)
ILLINOIS DEPARTMENT OF NATURAL RESOURCES
POST HEARING SUMMARY COMMENTS
OVERVIEW
The Illinois Department of Natural Resources (Illinois DNR) agrees with testimony provided
throughout this proceeding for the need to amend the existing Dissolved Oxygen water quality
standard contained within 35 Ill . Adm. Code 302 .206.
The existing standard inadequately accounts for the varied dissolved oxygen requirements of
aquatic life, and inadequately accounts for how dissolved oxygen concentrations vary across a
broad range of natural aquatic conditions throughout Illinois (Exhibit #23 : Illinois EPA and
Illinois DNR Technical Support Document, Mar . 31, 2006, page 1) .
However the Illinois DNR and the Illinois Environmental Protection Agency (IEPA) do not
believe the Illinois Association of Wastewater Agencies (IAWA) proposed revisions before the
IPCB are adequate . Testimony by Mr . Streicher (page 2 of pre-filed testimony for the November
2006 hearing) stated that IAWA's goals for developing their proposal were to have a "DO
regulation that met a few crucial criteria :
A
.
That it represents accurately what is expected in the least impaired waters of the
state;
B.
That the design of the rule
be hoth etgfivceable
by the IEPA and be protective of all
life stages of all vertebrate and invertebrate life found in the surface waters of
Illinois ;
C.
And that it has the,fisndamental strength of being based on good science
."
In our opinion, the IAWA proposal is not adequate because it fails to protect for species more
sensitive to low dissolved oxygen than channel catfish and largemouth bass ; fails to provide
adequate
. protection for early life stages ; does not address the range of waters contained in the
General Use category
; and, inadequately protects for long-term chronic effects of low dissolved
oxygen . For these reasons, the Illinois DNR became involved in this proceeding because State
law provides that the Department owns all aquatic life within our state boundaries and is
specifically responsible for regulating and managing these natural resources
.
After the August 25, 2005 hearing, the Illinois DNR and Illinois EPA jointly developed a set of
recommendations to address these shortcomings . As a result, joint recommendations contained
critical enhancements to the original IAWA petition in four major areas by including
: (1) two
levels of numeric standards for protection of identified dissolved oxygen sensitive organisms in
Illinois ; (2) an additional 30-day period necessary to protect early life stages of fish ; (3) a
narrative standard for waters that naturally cannot achieve consistently higher levels of dissolved
oxygen such as wetlands
. sloughs, river backwaters, and lakes and reservoirs below the
thermocline, and ; (4) the addition of the 30-day chronic standards consistent with the USEPA
National Criteria Document applicable to both levels of numeric standards for dissolved oxygen .
The Illinois Association of Wastewater Agencies (JAWA), through subsequent testimony, has
generally accepted recommendations # 3 (narrative standard) and # 4 (30-day chronic from
USEPA NCD) listed above
. The remaining differences between the JAWA petition (as proposed
originally on April 19, 2004 and through subsequent testimony as part
. Of this proceeding) and
the joint recommendations provided by the Illinois DNR and Illinois EPA, consist of the two
levels of numeric standards for protection of identified dissolved oxygen sensitive organisms
(recommendation #1 above) and the additional 30-day period (to July 31) necessary to protect
early life stages of fish (recommendation #2 above)
. The Illinois DNR believes a review of the
2
record will show that extensive statewide binlegical data and scientific literature contained in
Exhibit #23, as well as direct testimony provirl d by the Illinois DNR and Illinois EPA, fully
supports all of these recommendations . In contrast
. the Illinois DNR believes the IAWA position
fails to adequately protect for known dissolved oxygen sensitive organisms, and early life stages
of fish required by the USEPA National Criteria Document (NCD) .
Protecting Illinois Aquatic Species Sensitive to Dissolved Oxygen :
The USEPA National Criteria Document (1986), also Exhibit #2, accounts for differences in
dissolved oxygen sensitivity among types of fish and macroinvertebrates by providing two
different levels of DO criteria
. The Illinois DNR and Illinois EPA recommendation for two
levels of numeric standards for dissolved oxygen is based on this sour.d, scientific foundation .
Illinois DNR and Illinois EPA reviewed available scientific literature since 1986 related
specifically to the DO tolerance of many types of fish and macroinvertebrates that inhabit Illinois
waters . Based on the literature and staff expertise, we selected a set of species more sensitive to
low DO than those protected by the IAWA proposal (Exhibit # 23, pages 10 - 21). We then
established a detailed process for selecting threshold values for each biological measure to
determine what constituted a meaningful amount of DO sensitive organisms at a site (Table 5 in
Exhibit # 23) . These threshold values were applied to statewide biological databases managed
by Illinois DNR and Illinois EPA . The extrapolation of site-based analytical results to identify
specific stream segments requiring enhanced dissolved oxygen protection was conducted using
state-of-the-art Geographical Information Systems, or GIS technology (Exhibit #23, pages 38 -
45)
. The Illinois DNR believes a review of this record will show that recommendations for
protecting Illinois aquatic species sensitive to dissolved oxygen is based on sound and
appropriate biological data collected statewide
. The Illinois DNR disagrees with opinions
expressed by IAWA in testimony that the process for developing the joint Illinois DNR and
Illinois EPA recommendations was arbitrary .
IAWA's proposal also fails to provide adequate protection for early life stages . USEPA (1986
:
Exhibit 2) defines early life stages as,
"Includes all embryonic and larval stages and juvenile
forms ro 30-days following hatching'
(see page 34 of USEPA, 1986)
. The Illinois DNR and
Illinois EPA recommendation for an additional 30-day period (through July 31) necessary to
3
protect early life stages of fish, is based on c
:ticnl-ive spawning information and data from six
authoritative texts which represent nearly 100 Years of fish species spawning information . A
compilation of this spawning data, including references to the authoritative texts used to compile
this information, is summarized in Table 4 of Exhibit #23
. The Illinois DNR believes a
comparison of the proposed IAWA date of June 30 and the recommended date of July 31 by
Illinois DNR and Illinois EPA
. will clearly show the biological need for extending protectionfor
early life stages of fish by this additional 30 days
. Through its testimony, the Illinois DNR has
provided the IPCB with information that shows the TAWA's date of June 30 neglects to include
protection for post-hatch embryonic and yolk-sac development as required by USEPA (1986) .
Exhibit #2
. In contrast, IAWA through Dr . Garvey's testimony, attempts to describe spawning
strategies in Illinois fish (see reference on page 24 of Exhibit #23 . Protracted Spawning in
Streams Fishes-Implications for Proposed Dissolved Oxygen Standards) . In addition, Dr
.
Garveys testimony provided at the November 2006 hearing states on page 3 of pre-filed
testimony "Evidence is mounting that the majority of reproduction
of
aquatic organisms in
Illinois either occurs before July 1 (see Csoboth 2006 thesis, SIUC
: Exhibit #1) or late-spawning
organisms have early life stages that are tolerant to low dissolved oxygen concentrations
. "
The
Illinois DNR respectfully disagrees with Dr . Garvey's conclusions . For example . Csoboth 2006
thesis is cited as evidence that the majority of reproduction of aquatic organisms in Illinois
occurs before July 1 . A review of this thesis shows it is limited in geographic scope and cannot
be extrapolated to all water types in all parts of the State_ Again, in comparison, the Illinois
DNR would direct the IPCBs attention to the extensive compilation of spawning information
contained within Table 4 of Exhibit #23 .
To supplement evidence on spawning of Illinois fishes
. Illinois DNR field biologists provided
direct testimony at the November 2006 hearing that refutes conclusions made by Dr
. Garvey (see
hearing transcript of November 2006, pages 35 - 40). In the same testimony provided by Dr.
Garvey at the November 2006 hearing, page 3 of pre-filed testimony, it is stated
"late-spawning
organisms have early life stages that are tolerant to low dissolved oxygen
." Again extensive
data, scientific literature and Illinois DNR biologists' testimony provided in Exhibit #23, pages
24 -
26 provides evidence to the contrary . In addition . USEPA (1986) states, "The warn water
criteria are necessary to protect early life stages of warn water fish as sensitive as channel
4
catfish . . ."( see
also page 6 of the Illinois pNR and Illinois EPA
TSD, Exhibit #23) .
Clearly. the
evidence present on
Table 4 of Exhibit # 23 showing
Channel catfish spawning through July 31,
demonstrates that it is absolutely necessary
to provide the additional 30-day protection
. Illinois
DNR strongly
believes
a review of this record clearly shows that an additional 30-day period as a
statewide date (July 31) is absolutely essential for protecting early
life stages of fish species in
Illinois .
EXAMINATION OF KEY ISSUES AND TESTIMONY
Throughout this
proceeding, several issues have been raised that we want to clarify .
Stakeholder Process ;
Testimony by IAWA (Stretcher) during the
November 2006 hearing discusses the stakeholder
process as the joint IDNR and IEPA
recommendations were being developed (see page 6 of pre-
filed testimony) . Mr. Streicher states ". . .a new round of meetings were scheduled while they
worked out what is now the Joint IDNR/IEPA proposal, I wouldn't describe these meetings as
being stakeholder meetings . The group was larger than ideal for this sort of discussion . We
weren't usually apprised of what the data would he presented before attending the meetings . I'm
sorry to say, that in my opinion we were not given the opportunity to have meaningful input."
The Illinois DNR respectfully disagrees . Testimony
provided
by Illinois
DNR
during the April
2006 hearing (see page 6), states "Scheduled stakeholder meetings were held on October 19,
2005 in. Chicago, and November 15, 2005 in . Springfield.
These meetings were attended by
Illinois DNR, Illinois EPA, IAWA, Illinois Environmental Regulatory Group, Sierra Club,
Prairie Rivers Network, USEPA, and Friends of the Chicago River . The Illinois DNR and
Illinois EPA hosted additional meetings with L4W4 on February 24, 2006 and with the Sierra
Club and Prairie Rivers Network on March 1, 2006
. The stakeholder process provided valuable
input to the Illinois DNR and Illinois EPA in developing these recommendations for dissolved
oxygen standards." The Illinois
DNR believes these stakeholder meetings and smaller meetings
were essential to the Illinois DNR and Illinois EPA
joint recommendations .
5
Field Versus Laboratory-Based Approaches :
Testimony by IAWA (Dr
. Garvey) during the November 2006 hearing (se(- page 3 and 4 of pre-
filed testimony), states
"Only
through experiments that establish causality between oxygen
tolerance and fish life processes can tolerance be assessed
. Again, these issues have been
addressed in previous testimony when I described the research by Smale and Rabeni published
in the Transactions of
the American Fisheries Society .
Recall, these investigators used a
combination of lab assays and surveys to develop an index of oxygen sensitivity in Missouri
streams." While
it is true these investigators used a combination of lab assays and surveys, Dr
.
Garvcy neglects to complete the story indicated by the evidence in Smale and Rabeni, as well as
other literature
. The Illinois DNR would direct attention to the Exhibit #23 for a full discussion
of this topic entitled "Difficulties in interpreting critical thresholds of dissolved oxygen for
aquatic life," (see pages 22 and 23). Excerpts from this Illinois DNR and Illinois EPA
testimony further quote Smale and Rabeni (1995) as "Considerable differences have been found
between laboratory tolerance values and lethal conditions in natural situations (Moore 1942 ;
Davis 1975) . It may not be appropriate to use laboratory measurements to predict specific,
numerical values of either hypoxia or hiperthermia that would be lethal to fish in the wild . "
Smale and Rabeni (1995) further states, "The complexity of environmental challenges faced by
fish in natural situations does not inspire confidence in the applicability of apparently simplistic
and reductionist laboratory tolerance data . . ." The Illinois DNR and Illinois EPA approach in
developing the joint recommendations account for these concerns. The Illinois DNR believes the
record is clear and scientific literature fully supports the Illinois DNR and Illinois EPA approach
in identifying Tllinois species that are DO sensitive . Dr. Garvey expresses further concern about
the Illinois DNR and Illinois EPA approach in testimony from the November 2006 hearing on
page 3 of pre-filed testimony where he states "My
concern about this approach is that the
selection of streams based solely on associations between aquatic organisms and average
oxygen concentrations ignores other potential causal factors such as habitat quality, gradient
and temperature. Thus, coining these organisms as oxygen sensitive and then using them to
select enhanced waters may be completely spurious . " A complete and accurate account of how
the Illinois DNR and Illinois EPA analyzed associations between fish and oxygen concentrations
is provided in Exhibit #23, pages 10 - 13 . The Illinois DNR believes the testimony and
scientific literature presented here and throughout the Technical Support Document (Exhibit #
6
231 clearly acknowledges the "coining of organisms as oxygen sensitive as not only valid- but a
concept that the US
.EPA National Criteria Document requires States to address
.
Relevance of dissolved oxygen data,
temperature data, and habitat data
:
A great deal of the record in this proceeding has been dedicated to the presentation and analysis
of abiotic data, including dissolved oxygen concentration data, (whether continuous or grab),
temperature data and habitat data
. The Illinois DNIR acknowledges this abiotic data is of interest
to this nilemaking
. The continuous dissolved oxygen data provided in testimony from a handful
of locations throughout the State does help quantify the natural variability of dissolved oxygen,
thus justifying the need to update the existing dissolved oxygen standards
. However, it's the
biological data (fish and macroinvertebrates) and scientific literature that describes their
sensitivity to dissolved oxygen that is most relevant to deciding what the appropriate standards
need to be to fully protect aquatic life. The joint recommendations from Illinois DNR and
Illinois EPA were based on identifying the aquatic life needs for dissolved oxygen . Given this
objective and purpose. direct use of other abiotic data was not necessary, nor was it appropriate
.
During the November 2006 hearing, both Illinois EPA and Illinois DNR provided responses to
cross-examination further justifying the sole use of biological data (see pages 43 - 44).
This record also includes the analysis and comparison of current dissolved oxygen measurements
to the proposed standards . While this has proven to he an interesting exercise, the Illinois DNR
believes the basis for amending the dissolved oxygen standard should not be whether or not
waters are currently meeting the proposed standards, but rather, standards are set at levels to
meet aquatic life needs, including those life stages and species sensitive to dissolved oxygen .
Testimony by IAWA (Streicher) referenced work conducted by Dr . Mark David, who is working
with the Illinois Council for Food and Agricultural Research (CFAR)
. On page 11
of
Mr.
Streicher's pre-filed testimony from the November 2006 hearing, he states "While that effort is
not yet complete Dr
. David was willing to state that his findings show that the greatest influence
on biological diversity in Illinois waters is habitat
. Diverse and intact habitats result in the
greatest diversity of fish and tnacroinvertebrate communities
." The Illinois DNR agrees with
this research and has accepted this premise for a long time in management activities conducted to
7
benefit the State's natural resources
. However, biodiversity is not the issue
. The presence of DO
sensitive organisms at locations within the State does not imply those sites are biologically
diverse
. Testimony by Dr
. Garvey (page 5 of pre-filed testimony) carries this premise even
further when he states "As I
have argued throughout this process and in the original IAWA-
sponsored report, these results indicate that stream physical characteristics trump water quality
and need to be the primary focus of standard development . "
The Illinois DNR respectfully
disagrees with the broad, general conclusion that physical characteristics need to be the primary
focus of standards development
. Water quality improvements over the last 30 or so years, since
the enactment of the federal Clean Water Act, have resulted in major improvements in aquatic
life in waters such as the Illinois River, where habitat during the same time period has been even
further degraded .
How can river segments recommended for enhanced protection for dissolved oxygen have a
meaningful
amount of DO sensitive taxa yet fail to meet the proposed dissolved oxygen
standards?:
The issue stated in the above question has arisen throughout these proceedings since the Illinois
DNR and Illinois EPA joint recommendations were presented . As previously described in these
summary comments, dissolved oxygen concentration data and biological data are very different
(i.e, concentration data only reflects the condition at that point for that particular time period it
was collected, while biological data reflects what the organisms are exposed to regarding stresses
over time) . This makes direct comparison of the two difficult without consideration of the
limitations in both types of datasets
. During the November 2006 hearing, witnesses from the
Illinois EPA and Illinois DNR described some of the factors that can account for this in field
situations and at site specific locations (see page 30
- 35 of November 2006 hearing transcripts)
These factors include and depend on the magnitude and duration of dissolved oxygen excursions,
where minor excursions in concentration for limited periods of time may be tolerated
. If the
excursions are severe enough and for a long enough time period, organisms will seek other
refuges in nearby tributaries or segments of stream and return when dissolved oxygen levels
recover
. An Illinois DNR field biologist provided direct testimony where this phenomenon was
observed in the field as a result of dissolved oxygen excursions (see page 33- 34 of November
2006 hearing transcripts) .
Differing collection techniques between dissolved oxygen
8
concentration data and how biological data are collected over multiple microhabitats (riffle, run,
pools) can also easily account for this seemingly apparent discrepancy in what the two data sets
are indicating
. Some of our most DO sensitive species can survive and thrive in waters that have
occasional excursions in dissolved oxygen, however they will not survive long in a system that
has dissolved oxygen excursions that occur frequently to 3
.5 mg/l and is at a 7 day mean
minimum of 4 .0 mg/l.
Tiered Aquatic Life Use Designations :
Testimony by TAWA (Streicher) during the November 2006 hearing discusses efforts to develop
Tiered Aquatic Life Uses for future consideration by the IPCB (see pages 8 - 10 of pre-filed
testimony) . Mr. Streicher states
"This
is indeed a complex process and we expect this to be a
long and laborious effort
. Yet in their testimony at the last hearing and their Joint IDNR/IE.PA
Proposal, the IDNR and IEPA are suggesting we move to a two-tiered dissolved oxygen standard
now." This is a misrepresentation of Illinois DNR and Illinois EPA testimony that states in
Exhibit # 23, page 1, "To replace the current General Use dissolved oxygen standard, Illinois
DNR and Illinois EPA recommend two levels of standards, each level applying to one of two sets
of waters in Illinois . One level applies to the large majority of General Use waters and is
designed to ensure sufficient oxygen concentrations for the aquatic life therein . Another higher
level of standards applies to a small, selected subset of General Use waters ; these thresholds are
designed to protect Illinois' most sensitive types and life stages of aquatic life that require
relatively higher dissolved oxygen concentrations
. " Both Level I and Level lI waters that are
part of the joint recommendations from Illinois DNR and Illinois EPA are contained within the
existing General Use designation .
Illinois DNR perspectives on Dissolved Oxygen Rulemaking
:
Testimony by JAWA (Streicher) during the November 2006 hearing attempts to portray Illinois
DNR's perspectives as different from Illinois EPA (see pages 5-7 of pre-filed testimony)
.
Mr
.
Streicher stated on page 5 that
"It would obviously be pointless to develop a rule that no one can
meet. This is, I think, the source
of
the different perspectives between the two agencies . They
aren't opposed to each other but they have approached this petition from slightly different
viewpoints
. IDNR wants to be as protective as possible while IEPA needs an enforceable and
9
attainable rule that is os protective as necessary . "
While the Illinois DNR accepts this as the
opinion of IAWA, the Department does not agree and believes we have testified as to our
perspective during the April 2006 hearing (see page 7 of pre-filed testimony) where we state "
.At
the same time, the Illinois DNR and Illinois EPA recommendations are not unnecessarily over
protective elsewhere
. Therefore, the Illinois DNR further believes these joint recommendations
will allow for targeting of limited state resources to the most critical waters impacted by low
dissolved oxygen concentrations
."
While it is true that the statutory authorities and mission
statements of the two agencies differ (Illinois DNR and Illinois EPA), the Illinois DNR believes
the joint recommendations would not have been possible if the two agencies approach and
perspectives were as different as IAWA attempts to portray
.
Averaging dissolved oxygen values
and Liebig's Law of the Minimum :
Testimony by IAWA (Dr . Garvey) during the November 2006 hearing (page 6 - 7 of pre-filed
testimony), states "Leibig aptly noted that the distribution of all living organisms will not be
dictated by average conditions, but rather the availability of the most limiting condition . " The
Illinois DNR does not disagree with the general principles of this premise . However. Dr. Garvey
further testifies "Only by identifying the limiting conditions, in other words the acute minimum
olgen concentration can we determine what should he present through . time."
This conclusion
fails to recognize the significance that Illinois' environmental and natural resource programs
place in biological data
. The biological data reflects multiple stresses that may be present, and
affecting the aquatic community function and structure over time . This is why biological data
has been critical for decades, and state's such as Ohio and Illinois have relied on the biological
data to give a better indication of stream quality as part of monitoring and assessment programs .
It is also the fundamental premise for the Illinois DNR and Illinois EPA joint recommendations
and why the extensive biological data from both agencies was used in lieu of dissolved oxygen
concentration data, or other abiotic data such as habitat and temperature .
In addition, Dr
. Garvey's conclusion in applying Lcibig's general principle seems to argue
against the basis for the USEPA National Criteria Document's use of chronic dissolved oxygen
standards.
It also seems to conflict with other IAWA testimony by Mr
. Strcicher from the
November 2006 hearing where he states
"The two agencies have proposed a seasonal DO
10
standard. They agree with the LAWA concept
of averaging the
dissolved o.rvgevr sneasr remeiv
.c. "
(See page 7 of pre-filed testimony)
.
Sierra Club Recommendation
:
During the November 2006 hearing, the Sierra Club through its testimony, proposed an addition
to the Illinois DNR and Illinois EPA recommendations including a minimum DO concentration
of 6
.5 milligrams per liter from December through March to he applicable to both Level I and
Level 11 waters
. This addition is based on testimony provided by Dr . Murphy expressing
concerns that a revised standard must ensure sufficient dissolved oxygen for aquatic life during
low temperatures
. While the Illinois DNR has not extensively investigated and evaluated this
issue in detail, it is likely that the physiological needs of aquatic organisms at low temperatures
are lessened as a result of lower metabolic rates during these cold periods
. If adopted by the
IPCBK the Illinois DNR would encourage the TPCB to consider basing the minimum dissolved
oxygen concentration of 6
.5 milligrams per liter on a temperature basis, when water temperatures
reach 10 degrees centigrade or below, in lieu of the calendar months of December through
March .
CLOSING STATEMENT
The IAWA's primary supporting documentation for their proposal consists of the
Garvey/Whiles, April 2004 report "An Assessment of National and Illinois Dissolved Oxygen
Water Quality Criteria",
Exhibit # 1
. While this report represents a valid initial discussion of the
dissolved oxygen issue, it falls short of providing the complete and necessary protection for DO
sensitive species in Illinois, and species that arc DO sensitive during early life stages
. In recent
testimony
. IAWA has provided additional studies in contrast to the biological data and scientific
literature presented by the Illinois DNR and Illinois EPA in support of their joint
recommendations (Csoboth thesis . Dr
. Davis' research regarding physical characteristics,
application of Liebig's law for averaging conditions, analysis of continuous dissolved oxygen
concentration data)
. While the Illinois DNR acknowledges these studies and analyses may he
useful, they are limited in scope and statewide applicability
. Therefore, the Illinois DNR
believes extreme caution should be used in applying these studies to support broad, statewide
Il
conclusions for all waters applicable lo these proposed amendments to the dissolved oxygen
standard
. In his testimony during the November 2006 hearing, Dr
. Garvey used these studies,
(particularly Dr
. David's research and the premise that physical characteristics trump water
quality) to build toward and support his final conclusion where he states "I favor scrapping
dissolved oxygen as a standard altogether." (November 2006 hearing, page 11 of pre-filed
testimony) . Additional IAWA testimony presented by Mr
. Dennis Streieher (November 2006
hearing. pages 9
. 10, 12, 14 of pre-filed testimony) expresses the opinion that the joint
recommendations presented by Illinois DNR and Illinois EPA are arbitrary and are based on no
scientific data.
The Illinois DNR believes the record clearly shows that the joint recommendations presented to
the IPCB by the Illinois DNR and Illinois EPA are not arbitrary, and are based on extensive and
relevant biological data . Specifically this includes :
•
The only statewide dataset in this record (biological data for fish and macroinvertebrates
from 1,110 sampling sites),
•
The use of scientifically valid and sound processes for developing the joint
recommendations (described in detail within Exhibit #23),
•
Compilation of spawning periods for Illinois fish species representing nearly 100 years of
data and information from six of the foremost authoritative texts on the subject,
•
Expertise from field biologists in both Illinois EPA and Illinois DNR, representing within
ID NR alone, over 218 years of aquatic biology expertise in Illinois,
•
Published scientific research from over 30 scientific literature sources contained within
the Technical Support Document, Exhibit #23,
•
Incorporation of significant input from other stakeholders through multiple stakeholder
meetings, and additional meetings with individual interested parties held at their request,
•
Providing all ancillary data and information requested by IAWA for the stated purpose of
preparing for cross examination questions for agency witnesses
.
The need to protect DO sensitive species in Illinois and species that are DO sensitive during
early life stages, including the NCD required 30-day period for lan'al development, is clear . The
12
Illinois DNR believes the record includes the data and science known today to meyc Iorward
with this significant improvement to the existing dissolved oxygen water quality standards
. The
Illinois DNR further believes that other recommendations presented by Illinois DNR and Illinois
EPA (including a narrative standard for waters that naturally cannot achieve consistently higher
levels of dissolved oxygen, and the addition of the 30-day chronic standards consistent with the
USEPA National Criteria Document applicable to both levels of numeric standards for dissolved
oxygen), provide essential components to the dissolved oxygen standards necessary for USEPA
approval, should the IPCB adopt the Illinois DNR and Illinois EPA recommendations
.
WHEREFORE, the Illinois DNR respectfully submits it's Post Hearing Summary Comments for
consideration by the Illinois Pollution Control Board .
Respectfully submitted,
ILLINOIS DEPARTMENT OF
NATURAL RESOURCES .
December 20 . 20116
Stanley Yonkauslu, Jr .
Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield . Illinois 62702
(217) 782-1809
13
CS
One 111 orneys
RECEIVED
ILLINOIS
CLERK'S OFFICE
DEPA>< TTi;,r OF
ORIGINAL.
DEC \1
9 2006
NATURAL RESOURCES
Pollution OF
Bard
One Natural Resources Way, Springfield, IL 62702-1271
OItICE OF LEGAL COUNSEL
Telephone: 217-782-1809
Fax: 217-785-2438
FAX TRANSMISSION COVER SHEET
Number
DateToFrom
:
:
: Stanley
Msof .
December
PagesDorothy
Yonkauski,
(including
19,
M. Gunn2006Jr
.
cover)
: 18
FaxNo
.
:312-8.14-3669
Message
:
Illinois DNR's Post Hearing Summary Comments for Dissolved Oxveen hule
Making (R04-025). Please accept this filing, original will follow express mail dated December
NOTICE20,
2006 .
: Unless otherwise indicated or obvious from the nature of the transmittal, this message
and the information contained within the documents comprising this facsimile transmittal are
intended only for the use of the above listed recipient and contain legally privileged and confidential
information
. If the viewer of this message and documents following is not the intended recipient,
you are hereby notified that any reading, disclosure, copying, distribution or other dissemination of
this faxed communication is strictly prohibited
. If you have received this communication in error,
please immediately notify us by telephone and return this message and the documents that followed
to us at the above address via U .S
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. Thank you .
