1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3 FOX WATERWAY AGENCY, )
)
4 Petitioner, )
)
5 vs. ) PCB 97-151
) (Variance-Water)
6 ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
7 )
Respondent. )
8
9
10
11 The following is the transcript of a
12 hearing held in the above-entitled matter, taken
13 stenographically by Kim M. Howells, CSR, a notary
14 public within and for the County of Cook and State
15 of Illinois, before June C. Edvenson, Esq., Hearing
16 Officer, at 70 East Main Street, Lower Level,
17 Chicago, Illinois, on the 6th day of May, 1997,
18 A.D., commencing at the hour of
19 10:15 a.m.
20
21
22
23
24
L.A. REPORTING (312) 419-9292
2
1 A P P E A R A N C E S:
2
HEARING TAKEN BEFORE:
3
ILLINOIS POLLUTION CONTROL BOARD,
4 100 West Randolph Street
Suite 11-500
5 Chicago, Illinois 60601
(312) 814-6930
6 BY: MS. JUNE C. EDVENSON, ESQ.
7
GARDNER, CARTON & DOUGLAS,
8 321 North Clark Street
Suite 3400
9 Chicago, Illinois 60610
(312) 644-3000
10 BY: MR. ROY M. HARSCH
11 Appeared on behalf of the Petitioner.
12
13 ILLINOIS POLLUTION CONTROL BOARD MEMBERS PRESENT:
14 Mr. Anand Rao
15 Ms. Marile McFawn
16
17 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY MEMBERS
PRESENT:
18
Ms. Margaret P. Howard
19
Mr. Bruce J. Yurdin
20
Mr. Robert G. Mosher
21
22
23
24
L.A. REPORTING (312) 419-9292
3
1 I N D E X
2 PAGES
3 OPENING STATEMENT BY MR. HARSCH......... 7
4 OPENING STATEMENT BY MS. HOWARD......... 16
5 DIRECT EXAMINATION OF MS. KABBES........ 20
6 CROSS-EXAMINATION OF MS. KABBES......... 78
7 REDIRECT EXAMINATION OF MS. KABBES...... 82
8 FURTHER REDIRECT EXAMINATION
OF MS. KABBES........................... 93
9
FURTHER REDIRECT EXAMINATION
10 OF MS. KABBES........................... 98
11 DIRECT EXAMINATION OF MS. HUFF.......... 106
12 CROSS-EXAMINATION OF MS. HUFF........... 142
13 REDIRECT EXAMINATION OF MS. HUFF........ 149
14 RECROSS-EXAMINATION OF MS. HUFF......... 150
15 DIRECT EXAMINATION OF MR. HODGES........ 153
16 CROSS-EXAMINATION OF MR. HODGES......... 165
17 REDIRECT EXAMINATION OF MR. HODGES...... 169
18 DIRECT EXAMINATION OF MR. YURDIN........ 170
19 CROSS-EXAMINATION OF MR. YURDIN......... 185
20 REDIRECT EXAMINATION OF MR. YURDIN...... 191
21 RECROSS-EXAMINATION OF MR. YURDIN....... 192
22 DIRECT EXAMINATION OF MR. MOSHER........ 193
23 CROSS-EXAMINATION OF MR. MOSHER......... 204
24 REDIRECT EXAMINATION OF MR. MOSHER...... 207
L.A. REPORTING (312) 419-9292
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1 E X H I B I T S
2 Marked for
Identification
3
Petitioner's Exhibit Nos. 1 through 16... 5
4
Petitioner's Exhibit No. 17.............. 38
5
Petitioner's Exhibit No. 18.............. 94
6
Petitioner's Exhibit No. 19.............. 152
7
8 Admitted Into
Evidence
9
Petitioner's Exhibit Nos. 1 through 16... 16
10
Petitioner's Exhibit No. 17.............. 38
11
Petitioner's Exhibit No. 18.............. 94
12
Petitioner's Exhibit No. 19.............. 152
13
Petitioner's Exhibit No. 20.............. 162
14
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 (Petitioner's Exhibit Nos. 1
2 through 16 marked for
3 identification, 5/6/97,
4 prior to the commencement
5 of this hearing.)
6 MS. EDVENSON: Good morning and welcome. This
7 is a contested case hearing being conducted by the
8 Illinois Pollution Control Board. The case number
9 is PCB 97-151, and it is entitled Fox Waterway
10 Agency vs. The Illinois Environmental Protection
11 Agency. The instance proceeding is in the nature of
12 a variance petition.
13 My name is June Edvenson. I'm the board's
14 hearing officer for this case. I will now request
15 that counsel for the parties enter their appearances
16 for the record.
17 MR. HARSCH: My name is Roy Harsch with the law
18 firm of Gardner, Carton & Douglas. I'm appearing on
19 behalf of petitioner, the Fox Waterway Agency.
20 MS. HOWARD: My name is Margaret Howard. I'm an
21 assistant counsel with the Illinois Environmental
22 Protection Agency, and I represent the agency in
23 this hearing.
24 MS. EDVENSON: Thank you.
L.A. REPORTING (312) 419-9292
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1 Have counsel for the parties filed their
2 appearances with the court in writing?
3 MR. HARSCH: Yes, we have.
4 MS. HOWARD: Yes.
5 MS. EDVENSON: Now, I'd like to ask any other
6 representatives of the parties that are in
7 attendance to identify themselves for the record.
8 MS. KABBES: I'm Karen Kabbes, the executive
9 director of the Fox Waterway Agency.
10 MS. HUFF: I'm Linda L. Huff with Huff & Huff,
11 Incorporated. We're an environmental consulting
12 firm.
13 MR. HODGES: My name is Michael Hodges. I'm
14 with Solomon TIC representing Solomon Technology.
15 MR. YURDIN: Bruce Yurdin with the Illinois
16 Environmental Protection Agency.
17 MR. MOSHER: Bob Mosher, Illinois EPA.
18 MS. EDVENSON: Thank you very much.
19 Let the record reflect that there are no
20 other persons in attendance at our hearing today,
21 members of the public specifically.
22 And with us today from the board we have
23 Board Member Marile McFawn.
24 MS. McFAWN: Good morning.
L.A. REPORTING (312) 419-9292
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1 MS. EDVENSON: And we also have with us Anand
2 Rao, head of our technical unit. Thank you for
3 coming.
4 All right. Are there any preliminary
5 motions or stipulations?
6 MR. HARSCH: I'd like to make a brief opening
7 statement, if I could, and then I will also be --
8 I've introduced -- I provided you with a pre-marked
9 exhibit list and a copy of all of our exhibits, and
10 I've also provided those exhibits to -- a list to
11 Margaret Howard. I'd like to have those entered
12 into evidence at the appropriate point in time.
13 MS. EDVENSON: Thank you, Mr. Harsch. We will
14 then turn to the order of the hearing.
15 Let's start with petitioner's opening
16 statement.
17 MR. HARSCH: Thank you.
18 OPENING STATEMENT
19 by Mr. Harsch
20 The Fox Waterway Agency is here before the
21 board, and we greatly appreciate the interest shown
22 to have board member McFawn and staff member Anand
23 Rao here.
24 We will be presenting three witnesses
L.A. REPORTING (312) 419-9292
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1 today; Karen Kabbes, executive director of the Fox
2 Waterway Agency, Linda Huff, principal from
3 Huff & Huff Incorporated, and Mike Hodges who wears
4 a number of hats. And I'm not sure if you're here
5 on behalf of Solomon or The Industrial Water Company
6 of Wyoming.
7 My three witnesses will be presenting the
8 testimony into evidence in support of a variance
9 request that we have filed on behalf of the agency.
10 We are seeking relief principally from the agency's
11 position of the 15 milligrams per liter total
12 suspended solids -- and we may be referring to total
13 suspended solids also as TSS throughout this
14 morning -- limitation on the discharges, the return
15 water, incidental water from its dredging
16 activities.
17 The agency has imposed this limitation in
18 permits, and we've been told that they will continue
19 to pose that limitation. I'm not sure that that is
20 an appropriate use, the 15 milligram per liter TSS
21 limitation found in Section 304.124, as the board
22 has stated in at least one other variance petition
23 on behalf of the Army Corps of Engineers that had
24 never enacted an effluent limitation for dredging.
L.A. REPORTING (312) 419-9292
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1 We are also seeking relief from Section
2 304.105 from causing or contributing to the
3 exceedance of a water quality standard from
4 materials that may be contained in the dredge return
5 water and the effluent limitation for phosphorous
6 found at 304.123.
7 We are also seeking relief from
8 Section 304.105 as it applies to un-ionized ammonia
9 and phosphorous; 304.123(B) as it applies to
10 phosphorous, 304.124(A) as it applies to TSS, and
11 304.106 as it applies to the prohibition of
12 discharging any effluent which contains settleable
13 solids and requires that effluent turbidity to be
14 reduced to below obvious levels as well as any other
15 relief which the board may deem necessary.
16 And in that vain, we may propose, depending
17 upon what the outcome of today's hearing is, a
18 variance from Section 302.203, offensive conditions,
19 which is a prohibition in a water quality numerical
20 standard -- non-numerical standard that the waters
21 of the state be free from sludge or bottom deposits
22 and turbidity, amongst other things, of other than
23 natural origin and that no mixing be allowed to
24 comply with water quality standard provisions. And
L.A. REPORTING (312) 419-9292
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1 that --
2 MS. EDVENSON: Excuse me, Mr. Harsch. May I ask
3 you just at this point, do you refer to
4 Section 302.203 in your petition?
5 MR. HARSCH: No, I do not. I'm saying in our
6 position we refer to such other relief as the board
7 may deem necessary, and depending upon the testimony
8 that's presented today, we may be -- that may be one
9 of the provisions that we'll specifically ask for
10 the relief from.
11 MS. EDVENSON: Thank you.
12 MR. HARSCH: All of this relief is necessary as
13 you will hear this morning because when the Fox
14 Waterway Agency carries out its legislative mandate
15 to maintain the Fox Waterway and the channels --
16 lakes and channels there, it is required to do
17 significant amounts of dredging, and it has been
18 unable to comply with the 15 milligram per liter
19 total suspended solids limitation that the agency
20 has imposed in its permits.
21 This is not something that is unique to the
22 Fox Waterway Agency. We think that anyone who is
23 dredging in Illinois in practice cannot comply to
24 the 15 milligram per liter standard.
L.A. REPORTING (312) 419-9292
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1 As Miss Kabbes will testify, the agency
2 currently utilizes a confined dredged disposal area
3 called Ackerman Island. It has a system permitted
4 but not under construction referred to as R15. It
5 has another confined dredge disposal area under
6 consideration L10.
7 If these are required to be built, they
8 will be the same situation as Ackerman Island in
9 that they will need relief from the 15 milligram per
10 liter suspended solids limitation and the other
11 provisions referred to.
12 They are exploring the use of innovative
13 options so that they will not have to construct
14 additional confined dredged disposal areas, and she
15 will testify to the use of geotubes to construct
16 essentially wetland areas that would function,
17 during the life while they're being built, as a
18 confined dredged disposal site, and those geotubes
19 could be located in Grass Lake, Nippersink,
20 N-i-p-p-e-r-s-i-n-k, Pistakee, P-i-s-t-a-k-e-e, and
21 Fox Lakes.
22 In addition, the reason why Mr. Hodges is
23 here today is to describe an additional mechanical
24 dewatering system that the agency would like to try
L.A. REPORTING (312) 419-9292
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1 out and utilize in a channel. While the final site
2 has not been chosen, in all probability it will be
3 Holly Channel. And that system will return the
4 dredged water back into Holly Channel and will,
5 likewise, need relief.
6 We have clarified in our response to the
7 agency's variance recommendation, and I might say
8 our petition is Exhibit 1 including all of the
9 numerical attachments thereto.
10 The agency's variance recommendation I have
11 marked as Petitioner's Exhibit 2, and then our
12 response to the agency's variance recommendation is
13 Petitioner's Exhibit 3.
14 In our variance petition, I may not have
15 done, obviously, an adequate job of describing the
16 proposed sites that I've just outlined because in
17 the agency's variance recommendation, they have
18 recommended relief specific to only Ackerman Island,
19 a geotube site in Grass Lake and recommended a
20 denial of the requested variance relief as it
21 applies to the mechanical dewatering system.
22 In our response --
23 MS. EDVENSON: Can you speak up, Mr. Harsch?
24 Can you speak up a little more?
L.A. REPORTING (312) 419-9292
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1 MR. HARSCH: In our response to the agency's
2 variance recommendation, which is marked as
3 Petitioner's Exhibit 3, we have clarified that we
4 are seeking relief for all of the dredging
5 activities that I've outlined in my opening
6 statement.
7 The purpose of the variance is to allow the
8 Fox Waterway Agency to continue to operate beginning
9 with this summer's dredging season in compliance
10 with its permits which will require modification
11 because they're predicated on the existing 15
12 milligram per liter standard.
13 The operation as we have outlined in the
14 variance petition will allow the Fox Waterway Agency
15 to develop the necessary information to put together
16 and apply for an adjusted standard. We would intend
17 to work cooperatively with the Illinois
18 Environmental Protection Agency, and to that end,
19 the Fox Waterway Agency will be utilizing the
20 services of Huff & Huff to gather the necessary
21 information to allow us to develop the record and
22 the evidence necessary to support an adjusted
23 standard.
24 Hopefully, we will work with the agency,
L.A. REPORTING (312) 419-9292
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1 come up with an agreed site with specific
2 limitations or adjusted standard limitations that
3 the board -- that we'll be asking the board to
4 impose upon the agency's dredging operations. It is
5 undisputed that there is an environmental impact
6 associated with dredging.
7 The evidence you'll hear this morning and
8 the reports that have been introduced into evidence
9 shows that this rather temporal or short-term
10 environmental impact will be greatly outweighed by
11 the environmental improvement that dredging brings
12 along with it.
13 You can't remove bottom sediments without
14 causing some turbidity in the waterway whether
15 you're using hydraulic dredging with a return line,
16 mechanical dredging where you're actually scooping
17 the materials out, or any other possible means of
18 dredging.
19 You're physically lifting the bottom of the
20 waterway out of the stream so there's going to be an
21 intendment muddying or increasing the turbidity of
22 the receiving stream. But we think, as pointed out
23 by Karen Kabbes and Linda Huff and Mike Hodges, that
24 the environmental improvement greatly out --
L.A. REPORTING (312) 419-9292
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1 long-term environmental improvement greatly
2 outweighs any short-term environmental observed
3 conditions.
4 And with that, I'll save the rest of my
5 long-winded testimony to my witnesses rather than
6 myself.
7 Thank you.
8 MS. EDVENSON: Thank you, Mr. Harsch.
9 MR. HARSCH: Oh. I might point out in response
10 to a request by the hearing officer to Margaret
11 Howard, I have put together a summary of positions,
12 which is Petitioner's Exhibit 4, which lists the
13 projects, their locations, and that essentially sets
14 forth what probably are the points of difference at
15 this point in time between the Fox Waterway Agency
16 and the EPA.
17 At Miss Howard's request, we have
18 handwritten a change to the agency's rationale for
19 proposed TSS limitations to read the impact that TSS
20 has on aquatic life; is that correct, Margaret?
21 MS. HOWARD: Correct. So the sentence the lower
22 the TSS the better would be removed?
23 MR. HARSCH: Correct.
24 MS. EDVENSON: All right. And I understand from
L.A. REPORTING (312) 419-9292
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1 our preliminary discussion that there is no
2 objection to petitioner's exhibits?
3 MS. HOWARD: No. Other than that, no.
4 MS. EDVENSON: All right. Then Petitioner's
5 Exhibit 4 will be revised accordingly, and
6 petitioner's exhibits are accepted into evidence.
7 MR. HARSCH: Thank you.
8 MS. EDVENSON: All right. Mr. Harsch, would you
9 like to call your first witness?
10 MR. HARSCH: Does the agency --
11 MS. HOWARD: Can I make a brief opening
12 statement?
13 MS. EDVENSON: If you'd like to make an opening
14 statement.
15 MS. HOWARD: I'll try to keep it as brief as
16 possible.
17 OPENING STATEMENT
18 by Ms. Howard
19 There's something that's very important
20 that the board needs to understand in this
21 situation, and that is that the agency, the Illinois
22 EPA, does not have an objection to the entire
23 dredging project and the work, the dredging work,
24 that the FWA does in the Fox Chain O'Lakes.
L.A. REPORTING (312) 419-9292
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1 We do agree that it is something that's
2 necessary for both boating traffic in that area, and
3 also it does benefit the environment.
4 In terms of the requested relief, the
5 agency has already recommended that the board should
6 grant a variance from Section 304.105 as that is
7 applied to un-ionized ammonia, nitrogen, and
8 phosphorus. We do believe the board should grant a
9 variance to Section 304.123(B) as it applies to
10 phosphorous.
11 We also recommend that the board grant a
12 variance for Section 304.106 which prohibits
13 offensive discharges, and all of those variances of
14 those various board regulations should be applied to
15 the Ackerman Island site which discharges into Fox
16 Lake, the L10 confined disposal site which
17 discharges into Grass Lake, the R15 confined
18 disposal site which discharges into the Fox River,
19 and the proposed geotubes in Grass Lake, Nippersink
20 Lake, Pistakee Lake, and Fox Lake.
21 That leaves us basically with two things
22 that we have a problem with. And No. 1 is
23 solids limits, the variance requested for
24 Section 304.124(A). And right now, actually, we
L.A. REPORTING (312) 419-9292
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1 have agreed that Grass Lake -- they've requested
2 100 milligrams per liter for both the L10 and the
3 geotubes in that lake, and we have recommended
4 100 milligram solids.
5 What we still do not agree on in terms of
6 the solids are the solids limits for Nippersink Lake
7 as it applies to geotubes, Pistakee Lake as it
8 applies to geotubes, Fox Lake as it applies to both
9 the Ackerman Island and geotubes and Fox River as it
10 applies to confined disposal area R15.
11 So that is one thing that we'll have to
12 discuss here at this hearing and also with respect
13 to the mechanical dewatering system. We are
14 interested in hearing the evidence that they present
15 today. As of this time, we've recommended denial
16 because there just wasn't enough information in the
17 petition. We believe based on some conversations
18 that we'll be getting a lot more information during
19 this hearing, and we're hoping we may be able to
20 change that recommendation with respect to the
21 dewatering system.
22 I'll have two witnesses, Mr. Bruce Yurdin
23 who is very familiar with the dredging operations of
24 the FWA, and he works very closely in the dredging
L.A. REPORTING (312) 419-9292
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1 projects here at the agency -- at the Illinois EPA.
2 I hope I don't say agency, and then we confuse the
3 two.
4 And Mr. Mosher is involved in setting
5 standards for water quality and also effluent limits
6 in order to protect the water quality of water
7 bodies here in Illinois, and we hope we'll get some
8 things cleared up, and we'll be able to maybe change
9 some recommendations or come to an understanding as
10 to why we're having difficulty with the difference
11 in the recommendation as compared to the requests
12 for the TSS solids limits.
13 MS. EDVENSON: Okay. Thank you very much. I
14 believe that our case schedule does provide a small
15 amount of time for briefing and for the submission
16 of additional written materials. And we can talk
17 about that off the record before we finish today.
18 All right. At this point, would petitioner
19 like to call their first witness?
20 MR. HARSCH: Yes. But first I'd like to just
21 briefly respond and thank the Illinois Environmental
22 Protection Agency for clarifying on the record its
23 support for the various projects that I've outlined
24 that are listed also in Petitioner's Exhibit 4.
L.A. REPORTING (312) 419-9292
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1 In response to the agency's concern,
2 petitioner in its response to the agency's
3 recommendation which is Petitioner's Exhibit 3 has
4 indicated that it would accept 100 milligrams per
5 liter limitation on total suspended solids for all
6 of the confined dredged disposal sites and the
7 geotube projects.
8 So I think our difference at this point
9 probably is over what numerical limitations the
10 agency would ask the board to impose on total
11 suspended solids, and I think I have listed those,
12 have I not, Ms. Howard, in Petitioner's Exhibit 4?
13 MS. HOWARD: Yes, and that's accurate.
14 MR. HARSCH: And with that clarification, I'd
15 like to call my first witness, Karen Kabbes.
16 MS. EDVENSON: Will the witness please be
17 sworn?
18 (Witness sworn.)
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 WHEREUPON:
2 KAREN C. KABBES,
3 called as a witness herein, having been first duly
4 sworn, testified and saith as follows:
5 DIRECT EXAMINATION
6 by Mr. Harsch
7 Q. Miss Kabbes, will you please state your
8 full name for the record?
9 A. Sure. It's Karen Ann Cuff Kabbes.
10 Q. And will you -- I'm going to show you
11 what has been marked and accepted into evidence as
12 Petitioner's Exhibit 5.
13 A. Yes.
14 Q. Is that a true and accurate copy of
15 your resume?
16 A. Yes, it is.
17 Q. Thank you.
18 Would you please explain briefly what your
19 position is at the Fox Waterway Agency?
20 A. Yes. I'm the executive director of the
21 Fox Waterway Agency, and my role is to run the
22 agency's operations. I report to the local elected
23 board. I'm responsible for the agency.
24 Q. And what exactly is the Fox Waterway
L.A. REPORTING (312) 419-9292
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1 Agency?
2 A. The Fox Waterway Agency is a special
3 purpose unit of local government created to maintain
4 and improve the Fox Waterway System from Wisconsin
5 state line to Algonquin.
6 Q. Who governs that agency?
7 A. The agency is governed by an elected
8 board of seven officials. Three are elected from
9 the McHenry County portion of the defined territory,
10 and three are elected from the Lake County portion
11 of the defined territory, and a chairman elected at
12 large.
13 Q. When you talk about managing the Fox
14 Waterway chain, what's entailed in that?
15 A. In the sense the agency is concerned,
16 it's about a number of issues and by statute
17 concerned about maintaining and improving it for
18 recreation, environmental quality, flooding,
19 tourism, and, of course, coordination with federal,
20 state, and local agencies on any improvement
21 issues.
22 Primarily, our activities revolve around
23 cleaning up the waters for a number of recreational
24 uses including boating, fishing, hunting. It's a
L.A. REPORTING (312) 419-9292
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1 well-known fishing and hunting area and any other
2 recreational uses that are appropriate for lakes and
3 river systems such as the Fox River system.
4 Additionally, we get involved in marking
5 navigational channels for boating safety purposes.
6 We also get involved in marking of flooding issues,
7 and if there's a flood, we are the ones that
8 actually go ahead and put up weights to avoid
9 boating traffic and do media announcements to
10 control the access to the waterway, use of the
11 waterway during the flooding event. We --
12 Q. Has --
13 A. -- also --
14 Q. Okay. I'm sorry.
15 A. We also have worked with different
16 groups on tourism issues.
17 Q. Has the Fox Waterway Agency prepared a
18 mission statement?
19 A. Yes, we have.
20 Q. I show you what has been marked and
21 accepted into evidence as Petitioner's Exhibit 6?
22 A. Yes.
23 Q. Is that a true and accurate copy of
24 your mission statement?
L.A. REPORTING (312) 419-9292
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1 A. Yes, that is.
2 Q. Does the Fox Waterway Agency have a
3 newsletter?
4 A. Yes, we do.
5 Q. If I show you what has been marked and
6 accepted into evidence as Petitioner's Exhibit 7, is
7 this a true and accurate copy of the winter/spring
8 1997 newsletter?
9 A. Yes, it is.
10 Q. How often does the newsletter come
11 out?
12 A. Once a year.
13 Q. When you're referring to the area that
14 you have responsibility for, if I show you what is
15 Petitioner's Exhibit 8, would you explain what this
16 is?
17 A. Sure. This is a map that we provide to
18 boaters who use the waterway to help navigate the
19 waterway and understand the waterway depths and
20 locations of different services and locations that
21 they may want to visit on the waterway.
22 This is put out by us and available for
23 purchase, but it notes that we basically cover the
24 Wisconsin state line and all the way on the other
L.A. REPORTING (312) 419-9292
25
1 side down to roughly the Algonquin dam at Route 62.
2 Q. Can you in general describe the Fox
3 Waterway system?
4 A. Sure.
5 Q. Maybe start with Wisconsin boarder and
6 move your way down.
7 A. I'd be happy to.
8 It's a river system that comes from
9 Wisconsin that drains over 800 square miles of land
10 that is primarily agricultural. The watershed
11 starts just west of Milwaukee.
12 When it enters the state of Illinois, it
13 very quickly enters Grass Lake, which historically
14 was a large wetland lake and the home of many lotus
15 beds. The chain, if you continue around to the
16 northeast, consists of channels that connect a
17 number of lakes, the northern lakes being deep
18 glacier lakes that historically had wetlands between
19 them that the state had dredged in roughly the '30s
20 and '40s to connect and create the change.
21 These northern lakes are well-known fishing
22 lakes. In fact, we'll be hosting a DNR fishing
23 tournament at the end of May.
24 Q. Those are Channel Marie and --
L.A. REPORTING (312) 419-9292
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1 A. Catherine.
2 Q. -- Catherine Lake?
3 A. And to some extent Bluff also.
4 When you continue to the south, once you're
5 to the northern lakes you'll note that the channel
6 system goes through Petite Lake and then to Fox
7 Lake.
8 Fox Lake historically was the home of many
9 recreation activities around the 20th century.
10 There's a lot of historic structures in the area, a
11 lot of old fishing clubs, old sportsmen's clubs, a
12 lot of old resort areas that now are turned into
13 year-round structures and also the home of historic
14 boat racing.
15 Continuing along to Nippersink Lake,
16 Nippersink Lake was actually historically a much
17 larger wetland area. Continuing south under
18 Route 12 bridge, there's two channels that go into
19 Pistakee Lake; one was a man-made channel, one was a
20 historic channel.
21 Our boating system also includes some of
22 the adjacent channels you've seen marked on the
23 map. You'll note a lot of blue areas coming into
24 different lakes. Some of these are man-made
L.A. REPORTING (312) 419-9292
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1 channels that were excavated from wetlands. Others
2 were channels that may have existed historically.
3 These also are the number of areas that they can
4 reach by boat that we do maintain.
5 Continuing south of Pistakee Lake, again,
6 Pistakee Lake is a fairly deep lake. In the very
7 southern portion, you'll see a very deep corner.
8 It's also the home of the Pistakee Yacht Club and
9 other yacht clubs in the Chicagoland areas.
10 We also see then the Fox River system
11 coming off to the southwest corner. That continues
12 on south for approximately 30 miles, a number of
13 communities.
14 If you turn the map over, it goes through
15 McHenry, which has long-known historical features in
16 McHenry. It continues south to lock and dam system
17 by Moraine Hill State Park. Continuing further
18 south, the Holiday Hills, Highland Lake, Fox River,
19 Valley Gardens, Lake Barrington area, there's now a
20 Lake County Forest Preserve Park allowing public
21 access and across the lake from that is a McHenry
22 County Conservation District Park.
23 Continuing south to Fox River Grove there's
24 a historic town built along the waterway, which was
L.A. REPORTING (312) 419-9292
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1 a well-known vacation spot in the 1920s and '30s for
2 folks from primarily the Cicero area.
3 Continuing further south, it goes down into
4 the Algonquin. There, again, was a historical
5 feature of Algonquin.
6 Q. Do I understand it that essentially Fox
7 River, Chain O'Lakes area that you've just referred
8 to, is an interconnected waterway that has
9 essentially the flow from the Fox River as it comes
10 into Illinois from Wisconsin as well as the surface
11 run off from this area?
12 A. Yes.
13 Q. And conveys it down to the river down
14 to Algonquin?
15 A. Correct. And the waterway drains
16 about 800 square miles when it reaches the
17 Wisconsin/Illinois water boarder and then over
18 1,400 square miles when it reaches the Algonquin
19 dam.
20 Q. So a total of 1,400?
21 A. Just over 1,400 square miles.
22 Q. And you were charged by statute to
23 maintain that waterway?
24 A. Yes.
L.A. REPORTING (312) 419-9292
29
1 Q. And in addition to establishing
2 channels and putting the markers out and doing all
3 the safety regulation features, are you also charged
4 with dredging this waterway?
5 A. Yes.
6 Q. And why is it that you have to dredge?
7 A. Well, historically, the state did
8 dredge the waterway to create many of the
9 navigational channels. The lake river system
10 historically always carried some kind of a sediment
11 load into the area that would deposit into the low
12 line portions of the lake and sometimes the dredge
13 channels.
14 And so it's been historically the nature
15 that those channels need to be maintained by
16 dredging to allow for boat access and also to
17 improve the water quality. We find that boats that
18 go through the shallow areas tend to stir up the
19 bottom sediments, and put those bottom sediments in
20 resuspension and the water is much clearer where the
21 lakes are deeper.
22 Q. When was the agency created?
23 A. The agency was created in the
24 mid-1980s.
L.A. REPORTING (312) 419-9292
30
1 Q. Since the creation of the agency in the
2 1980s, are you the only public body that dredges in
3 this area?
4 A. Yes.
5 Q. So the historic role of dredging and
6 maintaining channels has been passed on to your
7 agency?
8 A. Correct. Prior to the agency, Fox
9 Waterway Agency, doing the dredging, it was
10 performed by the state of Illinois through its
11 Division of Water Resources.
12 Q. I show you what has been marked and
13 accepted into evidence as Petitioner's Exhibit 9.
14 Will you describe this?
15 A. Sure. This is a map that was drawn
16 from an aerial photograph in the early 1940s of the
17 Fox Chain O'Lakes system, and it was prepared by the
18 state of Illinois, Department of Public Works and
19 Building Waterways Division, which is the
20 predecessor of the current Department of Natural
21 Resources, Division of Water Resources. And it does
22 depict the waterway.
23 In fact, it also depicts the channels that
24 the state had created and were maintaining, and at
L.A. REPORTING (312) 419-9292
31
1 this particular plan, note some of the proposed
2 channels that they were looking to go ahead and
3 dredge at that period in time.
4 Q. And is there a difference in the
5 appearance of Exhibit 9 from Exhibit 8 in terms of
6 wetland areas?
7 A. Yes. We've used this 1940 state map as
8 a good record of historical wetland areas that
9 existed in the Chain O'Lakes.
10 When you compare the two maps, Petitioner's
11 Exhibit 8 and 9, you'll note that particularly in
12 Grass Lake, the northeastern portion of Grass Lake
13 is considerably different. There's a lot of wetland
14 areas in the western portion that are no longer
15 visible, no longer there.
16 The same thing with Nippersink Lake.
17 Again, in the northwest corner, you'll see a big
18 wetland mass that historically was there that is no
19 longer.
20 And continuing south of Pistakee Lake,
21 there's a whole big wetland complex that almost
22 looks like an arrow coming out at the northern
23 portion of Pistakee Lake that no longer exists.
24 Q. What happened to those wetlands?
L.A. REPORTING (312) 419-9292
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1 A. They have disappeared over time due to
2 erosion. There may be a number of causes, wind,
3 boat wake, ice, the water drawn down that the state
4 enacts with the damn system, but they have
5 disappeared due to erosion over time.
6 Q. Is sedimentation the number one problem
7 that your agency faces in maintaining the lakes?
8 A. Yes.
9 Q. And would you describe the extent of
10 sedimentation?
11 A. Studies prepared and presented and
12 noted in reports such as the Corps of Engineers
13 Recreational Boating impact study and other reports
14 note that we were receiving approximately 40 to
15 60,000 cubic yards a year of sediment coming into
16 our system every year from the watershed of
17 Wisconsin and the western portion of Lake County and
18 the eastern portion of McHenry County.
19 With those kind of sediment loads coming in
20 every year, we need to keep dredging our channels
21 because we find that channels do become filled in
22 very quickly in some locations, and they become
23 filled in. The boat traffic that passes through
24 those areas will go ahead and resuspend the boating
L.A. REPORTING (312) 419-9292
33
1 bottom sediments.
2 We have tried a number of different
3 measures to deal with it by redirecting boating
4 traffic in some areas trying to contain boating
5 traffic in other areas, to minimize the dredging
6 needs, but we just can't get around the fact that we
7 have sediment coming into our system, and we do have
8 to keep our channels open.
9 We want to keep our water quality at
10 acceptable levels according to fishers and duck
11 hunting that people enjoy in that area.
12 Q. Do you have any estimation of the
13 amount of sediment that has accumulated in the
14 Waterway Agency?
15 A. Yes. In 1988, a report was prepared
16 for the Fox Waterway Agency by Kudrna & Associates
17 that stated over 600,000 cubic yards needed to be
18 dredged at that point to maintain 100 foot-wide
19 channel throughout the system, and we at this point
20 assume that we're looking at a decade later and in
21 cases 100 foot-wide channel is not wide enough for
22 boating safety issues. So we assume that the
23 dredging needs are even greater at this point.
24 Q. Do you have an estimation of that
L.A. REPORTING (312) 419-9292
34
1 number?
2 A. At this point we have not gone ahead
3 with any further estimates. Additionally, we've
4 looked at the issue of side channels and the fact
5 that when this report was prepared it was just
6 looking at the main channels. There was no report
7 prepared looking at side channels that access the
8 waterway.
9 Historically, the agency has not gotten
10 involved in those, but in the early 1990s the
11 agency's position changed, and the recognition was
12 that these were truly public channels. We have over
13 100 side channels that we've also picked up some
14 responsibility for with additional dredging needs,
15 and those side channels, for example, may need on
16 the average of 3,000 cubic yards dredged.
17 MS. HOWARD: Excuse me. I'm sorry. What study
18 are you referring to?
19 MS. KABBES: The Kudrna Report, Comprehensive
20 Dredging and Disposal Plan.
21 MS. HOWARD: Is that something that was entered
22 as an exhibit?
23 MR. HARSCH: No.
24 MS. HOWARD: Okay.
L.A. REPORTING (312) 419-9292
35
1 MS. EDVENSON: Mr. Harsh, we may wish to see a
2 copy of that. Let's discuss that.
3 MS. HOWARD: The agency -- the Illinois EPA has
4 never -- we've not seen this in connection to this
5 case. Bruce apparently is familiar with it, but
6 this is the first time we've seen it.
7 MS. EDVENSON: Let's go off the record for just
8 a moment.
9 (Discussion had off
10 the record.)
11 MS. EDVENSON: All right. Let's go back on the
12 record now.
13 All right we had a question about a
14 reference that Miss Kabbes made to a report.
15 Mr. Harsch, would you like to make a
16 comment?
17 MR. HARSCH: Yes.
18 BY MR. HARSCH:
19 Q. When you referred to the report that
20 had been prepared by K-u-d-r-n-a & Associates,
21 Limited, dated June 30, 1988, Comprehensive Dredging
22 and Disposal Plan, Volume 1, report tables and
23 exhibits, we have included, have we not, certain
24 tables from that report as attachment three to the
L.A. REPORTING (312) 419-9292
36
1 variance petition?
2 A. Yes.
3 Q. In your reference to that report, it
4 was the conclusion that in 1988, 600,000 cubic yards
5 of sediment were there to be dredged to maintain 100
6 foot channel?
7 A. That's correct.
8 MS. HOWARD: Madam Hearing Officer, I would
9 object to introduction of that conclusion. We do
10 have the attachment three that was attached to the
11 petition, which are portions of that report, but we
12 were not -- we have not been given any other portion
13 of that report to review prior to hearing, nor will
14 we be prepared today to testify to anything else
15 other than what's included in attachment three of
16 the petition.
17 So we would object to the use of that
18 exhibit at this time -- the use of that report at
19 this time other than what's included in attachment
20 three.
21 MS. EDVENSON: Mr. Harsh?
22 MR. HARSCH: Well, I have no requirement to
23 provide the agency ahead of time with copies of my
24 exhibits. I think the agency is aware of that
L.A. REPORTING (312) 419-9292
37
1 report and familiar with it, at least your technical
2 people are, and it is, obviously, a document that --
3 historical reference document that is available for
4 any of the agencies in Illinois to utilize whether
5 it's the Waterway Agency or the Illinois EPA.
6 MS. EDVENSON: Thank you.
7 MR. HARSCH: We will gladly make available
8 copies and provide for the record, if you'd like,
9 Madam Hearing Officer, Table III-1, estimated
10 sediment volumes in main navigation channels, lakes
11 and rivers, which lists the various lakes and
12 channels and comes up with the conclusion of 604,000
13 cubic yards.
14 MS. EDVENSON: Thank you, Mr. Harsh.
15 MR. HARSCH: And that would be as Petitioner's
16 Exhibit 17, and I'll gladly provide the board and
17 the agency with a copy of that after the conclusion
18 of today's hearing.
19 MS. EDVENSON: Thank you, Mr. Harsh.
20 Your objection is overruled. I would like
21 to see that report come into evidence.
22 MR. HARSCH: The report in its entirety?
23 MS. EDVENSON: Yes. I'd like to ask --
24 MR. HARSCH: We'll gladly make a copy of it --
L.A. REPORTING (312) 419-9292
38
1 MS. EDVENSON: Excuse me. Mr. Harsh, please
2 don't speak while I'm speaking.
3 MR. HARSCH: I'm sorry.
4 MS. EDVENSON: I would like to ask petitioner to
5 provide a copy of that report to the board following
6 this hearing.
7 Will that be possible, sir?
8 MR. HARSCH: Sure. Since the agency --
9 MS. EDVENSON: I would like to --
10 MR. HARSCH: Excuse me. I'm sorry.
11 MS. EDVENSON: I would like to number that as
12 Exhibit No. 17, Petitioner's Exhibit No. 17.
13 (Petitioner's Exhibit No. 17
14 marked for identification
15 5/6/97.)
16 MS. EDVENSON: And if there's going to be an
17 objection to the introduction of that report into
18 evidence in this case, then let's hear that now.
19 MS. HOWARD: Yeah. We have no objection.
20 MS. EDVENSON: All right. Then the Petitioner's
21 Exhibit 17 is entered into evidence, and it will be
22 received by the board at a later date prior to the
23 closing of the record date based on the current case
24 schedule or the case schedule as we revise it.
L.A. REPORTING (312) 419-9292
39
1 MR. HARSCH: Thank you.
2 MS. EDVENSON: You may proceed.
3 MR. HARSCH: A point of clarification if I
4 might, the agency does have a copy of this report;
5 is that --
6 MS. HOWARD: We're going to have to -- we'll
7 have to check. If we do, we'll let you know.
8 MR. HARSCH: Thank you.
9 MS. McFAWN: You can always get a copy from the
10 board.
11 MS. HOWARD: Okay. Thank you.
12 BY MR. HARSCH:
13 Q. Miss Kabbes, in your earlier statement,
14 you also referred to a report that has been prepared
15 by the Army Corps of Engineers. I believe that
16 report is found as attachment two to the variance
17 petition?
18 A. Yes.
19 Q. Is that correct?
20 A. That's correct.
21 Q. In addition to what has now been marked
22 and accepted as Petitioner's Exhibit 17 and Exhibit
23 attachment two to the variance petition, which is
24 Petitioner's Exhibit 1, have there been any other
L.A. REPORTING (312) 419-9292
40
1 studies regarding the impact of sedimentation and a
2 need for dredging?
3 A. There may have been historical
4 studies. I don't have them available to me at this
5 point.
6 Q. So these are the two documents then
7 that would most apply -- describe the sedimentation
8 problem?
9 A. Yes.
10 Q. Can you summarize again what the
11 sedimentation problem is in the channel lake system?
12 A. Yes. The fact that sediment washing in
13 from the watershed enters the lakes and river
14 system, falls out of suspension from the waterway,
15 and drops into the low line portions of the lakes
16 and river system reducing the depth.
17 When it's in suspension, it also reduces
18 the water clarity which affects the aquatic plant
19 growth in some areas and also may affect the
20 waterway in its abilities to support the fishing,
21 duck hunting.
22 Q. What does the agency do to counteract
23 the sediment deposition and -- excuse me, the
24 sediment that is deposited in the system?
L.A. REPORTING (312) 419-9292
41
1 A. The agency has looked at a number of
2 different ways of dealing with that concern, and, in
3 fact, we'll hopefully be shortly looking at a
4 watershed study to try to reduce the sediment coming
5 into the system and has been also working on
6 Nippersink Creek with the Stream Committee through
7 the National Resources Conservation Services to
8 reduce the sediment load in the sense that sediment
9 load from Nippersink Creek has such a significant
10 amount of the sediment reaching our waterway based
11 on historic studies.
12 So we are looking to take watershed
13 measures, but, additionally, we have to remove
14 material that's already accumulated in the waterway,
15 and, therefore, we are dredging waterway to move
16 accumulated sediment in the boating lanes.
17 Q. The waterway watershed management
18 activity you're referring to, that requires the
19 cooperation of any of the other units of local
20 government that have jurisdiction; is that correct?
21 A. A number of organizations including the
22 state of Wisconsin.
23 Q. Can you describe what type of dredging
24 operations you currently carry out?
L.A. REPORTING (312) 419-9292
42
1 A. Yes. We have several pieces of
2 equipment at our disposal to use for dredging. One
3 is amphibious backhoe that we can use to
4 mechanically reach into the waterway and excavate
5 material and put it into trucks (indicating) and
6 drive it away from the waterway system.
7 We also have a hydraulic dredge which is
8 much like a big wet vacuum that uses a cutterhead to
9 cut the bottom sediments, put in suspension with
10 water, and then pump it to a containment sight where
11 it's contained, and the dirt settles out, and the
12 water is allowed back into the lake/river system in
13 a clean setting.
14 Q. When does your dredging season begin?
15 A. The hydraulic dredging is generally
16 done when there's no ice on the system, which is
17 roughly April through October. The mechanical
18 dredging can be done year round based on the
19 conditions for each site.
20 Q. Have you commended hydraulic dredging
21 this year?
22 A. We have done just a little bit of
23 hydraulic dredging to test our equipment out and to
24 demonstrate some attributes to the Department of
L.A. REPORTING (312) 419-9292
43
1 Natural Resources.
2 Q. And does the use of hydraulic dredging
3 require a confined dredge disposal sight?
4 A. For the fine grain sediments we're
5 judging, yes. We had to build a confined disposal
6 facility.
7 Q. And is that what you refer to as the
8 Ackerman facility?
9 A. Yes. That's the site that we currently
10 are pumping fine grain sediment into.
11 Q. Would you describe briefly what this
12 confined dredge disposal area consists of?
13 A. Sure. It historically was an island
14 that was burned, I think, by the state prior to the
15 agency's creation. And these high burns were
16 constructed to allow for settling ponds, a series of
17 three ponds, that the dredge material can pass
18 through to allow the sediment to pass and to drop
19 out. We're talking, like, roughly a seven-acre
20 site.
21 Q. Do you currently have a permit for that
22 facility?
23 A. Yes.
24 Q. And is that permit set forth as
L.A. REPORTING (312) 419-9292
44
1 attachment seven to the variance petition, which is
2 Petitioner's Exhibit 1?
3 A. Yes.
4 Q. Does this permit limit total suspended
5 solids, TSS, to 15 milligrams per liter?
6 A. Yes.
7 Q. Has the Fox Waterway Agency been able
8 to consistently comply with this permit limitation?
9 A. No.
10 Q. Would you briefly describe what levels
11 of total suspended solids you have been able to
12 meet?
13 A. The total suspended solids collect a
14 very -- and we have met it at times though it's been
15 only probably I think two or three samples that
16 we've collected over a period of time.
17 Generally, the total suspended solids
18 released have gone as high as 100 parts per million,
19 and, I believe, prior to my being with the Fox
20 Waterway Agency they may even had higher
21 discharges.
22 Q. And you're referring to attachment one
23 to the variance petition?
24 A. Correct.
L.A. REPORTING (312) 419-9292
45
1 Q. And attachment one is a listing of the
2 sample results from 1993 and 1994?
3 A. Correct.
4 Q. Why are there none in 1995?
5 A. We did not use that Ackerman Island
6 facility in 1995.
7 Q. And why is that?
8 A. We had filled it out, and, generally,
9 the routine has been once the site is filled, we
10 allow it to sit for a year so it has additional
11 drainage and then come in the following year and
12 clean it out.
13 Q. Is there a cost associated with that?
14 A. Oh, definitely. We've been getting the
15 cost on each time we've cleaned it out. We're
16 looking at generally about a quarter million dollars
17 to clean out the containment site.
18 Q. Has the agency had to take any steps in
19 terms of limitation of its dredging in an attempt to
20 meet 15 milligrams per liter?
21 A. Yes. The permit that was submitted
22 suggested we be only dredging six hours a day. In
23 general, when someone looks to dredge particularly
24 if they're going to hire consultants, the consultant
L.A. REPORTING (312) 419-9292
46
1 generally wants to dredge 20 to 24 hours a day, get
2 in and get out.
3 So that's made it difficult for the agency
4 to perform dredging except by its own resources.
5 Q. So you've had to -- why do you have to
6 limit the hours of operation?
7 A. In order to meet the 15 parts per
8 million.
9 Q. Simply put, is that to put less
10 material in so you're introducing less water into
11 the system so it has a longer retention plan?
12 A. Right. A longer retention time. In
13 fact, we often get down to the point of only
14 dredging several days a week after a while just to
15 allow enough settling time of material. So we end
16 up actually not even dredging it a full week.
17 Q. I think earlier you said that you can
18 pump from hydraulic dredges a total distance of --
19 how far to Ackerman Island?
20 A. Well, it depends on the number of
21 booster pumps you have, but we currently have one
22 booster pump. And we can pump with our current
23 equipment about two miles.
24 Q. Do you have under consideration the
L.A. REPORTING (312) 419-9292
47
1 potential construction of additional confined
2 dredged disposal sites?
3 A. Yes. The state who has been working
4 with us on this concern of dredging the waterway
5 through the Department of Natural Resources Office
6 of Water Resources has acquired two other sites that
7 could be used as containment sites; one on Grass
8 Lake, which is known as the L10 site, and one along
9 the Fox River known as the R15 site.
10 Q. What is the current status of those
11 sites?
12 A. The R15 site has been permitted but not
13 yet constructed. The L10 site has only had
14 primarily feasibility work completed. There are
15 some permits that haven't been applied for yet.
16 Q. When you talk about permits, are you
17 talking about Army Corps of Engineer permits, or are
18 you talking about Illinois Environmental Protection
19 Agency permits?
20 A. All permits, the Corps of Engineers,
21 Illinois EPA permits, and DNR permits such that, you
22 know, for example, it's considered a damn by
23 building dredge containment safety permit.
24 Q. And if I show you again Petitioner's
L.A. REPORTING (312) 419-9292
48
1 Exhibit 8, if you located on this map the locations
2 of these confined dredged disposal sites, will you
3 describe for the record where they are?
4 A. Sure. B is the L10 site, that's been
5 proposed; E is the Ackerman Island site that's
6 currently operated and permitted; and on the back
7 side of the map, Site L is the R15 site, that's been
8 permitted but not constructed.
9 Q. Do you have any estimation on the cost
10 of constructing these two additional sites?
11 A. The R15 site has been estimated at
12 roughly one and a half million dollars per
13 construction after land acquisition, and that's been
14 part of the reason the agency has asked the state
15 not to proceed because we want to look at
16 alternative methods to see if we could figure out
17 ways to dredge without having to build a containment
18 site that we have to clean out for considerable
19 dollars every year or every other year.
20 Q. Are you generally familiar with the
21 other dredging activities that are carried out in
22 the state of Illinois?
23 A. I tried to keep abreast of some of that
24 work, yes.
L.A. REPORTING (312) 419-9292
49
1 Q. Do you personally know of any dredging
2 that's being conducted in Illinois that complies
3 with 15 milligrams per liter total suspended solids
4 in actual operation?
5 A. No. I think at times they might, but I
6 think as a general course of practice they don't.
7 Lake Springfield would have to be the closest.
8 Q. Have you had any discussions with other
9 agencies or public bodies that carry out dredging
10 operations in Illinois?
11 A. Yes. I've talked to some other groups
12 involved in dredging particularly consulting firms,
13 a consulting firm and a public entity that was
14 involved, too, in dredging.
15 Q. Were these discussions principally
16 concerned with the problem associated with the 15
17 milligram per liter limitation that had been imposed
18 by the agency?
19 A. Yes. We had some discussions regarding
20 that concern.
21 Q. Can you describe those discussions and
22 who participated in them?
23 A. Yes. I've talked to Bob Kursher from
24 Northeastern Illinois Planning Commission. He was a
L.A. REPORTING (312) 419-9292
50
1 study manager from the Skokie Lagoon dredging
2 project and with Gary Wilken of Cochran and Wilken
3 Engineers in Springfield who's been involved as a
4 design engineer in many projects in the state of
5 Illinois.
6 They have both had described to me that --
7 MS. HOWARD: Objection, hearsay. I think also
8 the fact that the study is in evidence would also
9 provide the board as well as the Illinois EPA to
10 make conclusions based on that study, and I don't
11 think we should allow a witness to testify as to
12 what other people said in conversations that we
13 didn't have any -- the witness isn't here to be
14 cross-examined, and I think the evidence that's in
15 the record will be adequate. If not, then the Fox
16 Waterway Agency should have produced those witnesses
17 here for the hearing so that I would have an
18 opportunity to cross-examine them as to their
19 statements.
20 MS. EDVENSON: Mr. Harsch?
21 MR. HARSCH: I might point out that the board's
22 rules do allow a reasonable -- essentially do allow
23 hearsay as long as it's relevant and a reasonable
24 person would rely on it.
L.A. REPORTING (312) 419-9292
51
1 I think what I'm trying to establish by
2 these questions are the general nature of the 15
3 milligram per liter compliance problem that the
4 agency is well aware of since the agency's own
5 witness today has been a party to some of those
6 discussions. We were going to get into, to set the
7 tone of what gave rise as what was prepared by
8 Northeastern Illinois Planning Commission, a review
9 of water quality regulations pertaining to dredging
10 activities.
11 So if you'll bear with me, I'll connect it
12 up very quickly.
13 MS. EDVENSON: The objection is sustained.
14 Perhaps you can pursue this line of questioning in
15 another way.
16 BY MR. HARSCH:
17 Q. Miss Kabbes, have you ever had a
18 meeting with representatives of the Illinois
19 Environmental Protection Agency prior to the filing
20 of this present variance petition?
21 A. Yes, plenty of meetings.
22 Q. And who participated in those meetings?
23 A. I had a meeting in particular regarding
24 the concern of the 15 parts per million issue, and
L.A. REPORTING (312) 419-9292
52
1 at that meeting, Jim Parks was there, Bruce Yurdin,
2 Representative Cal Skinner and Gary Wilkens.
3 Q. What did you believe to be the purpose
4 of that meeting?
5 A. That meeting was to discuss the 15
6 parts per million total suspended solid requirement
7 that was generally enforced in the state of Illinois
8 on dredging operations, hydraulic dredging
9 operations, and the concern that that may not be the
10 appropriate standard and how that standard could be
11 modified to be more appropriate for dredging
12 operations, particularly dredging operations that
13 are looking to improve water quality.
14 Q. Approximately when was this meeting?
15 A. 1994, '93, '94.
16 Q. Were there any recommended activities
17 that or conclusions that were reached in that
18 meeting?
19 MS. HOWARD: Objection, your Honor. I'd like to
20 know whose conclusions they are.
21 BY MR. HARSCH:
22 Q. Are there any general conclusions that
23 you understood to be reached as the course of action
24 that should be followed following that meeting?
L.A. REPORTING (312) 419-9292
53
1 MS. EDVENSON: That's a yes or no question.
2 BY THE WITNESS:
3 A. Yes.
4 BY MR. HARSCH:
5 Q. And what is your understanding of that
6 course of action that was agreed to?
7 A. That EPA would look for an organization
8 such as NIPC to contract with to prepare a report on
9 the dredging standards commonly used across the
10 country with a goal towards looking to modify or
11 enact appropriate dredging regulations within the
12 state of Illinois.
13 Q. In fact, did the Northeastern Illinois
14 Planning Commission carry out such a review?
15 A. Yes.
16 Q. And did they prepare a report entitled
17 The Review of Water Quality Regulations Pertaining
18 to Dredging Activities dated June 1996 which is
19 found at attachment five to the variance petition?
20 A. Yes.
21 Q. Is that a true and accurate copy of
22 that report?
23 A. Yes.
24 Q. Can you briefly describe what has
L.A. REPORTING (312) 419-9292
54
1 occurred in terms of the utilization of this report
2 since its publication last June?
3 A. Yes. The report has been made
4 available. There were several meetings held with
5 various staff, at least one meeting with staff from
6 the IEPA to discuss the report.
7 Q. Is that staff member Mr. Yurdin along
8 with others?
9 A. Mr. Yurdin was at that meeting
10 regarding the report, and it became clear to me at
11 least -- and also in casual conversations with staff
12 that the agency's workload would probably not permit
13 the agency to move rapidly towards incorporating
14 this report in any kind of statewide change to the
15 current standards used for dredging operations.
16 Q. When you refer to the "agency," you're
17 referring to the Illinois Environmental Protection
18 Agency?
19 A. Right.
20 Q. So, essentially, it's your
21 understanding that following the preparation of this
22 report, the Illinois Environmental Protection Agency
23 was not prepared --
24 MS. HOWARD: Objection to the question. I
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1 believe the attorney summarizing what the witness
2 just testified to is not appropriate in the direct
3 examination of a witness.
4 MS. EDVENSON: Can you rephrase your question,
5 Mr. Harsh, so that it's not a leading question?
6 MR. HARSCH: Sure.
7 BY MR. HARSCH:
8 Q. During your meetings with the staff of
9 the Illinois Environmental Protection Agency, did
10 you discuss the possibility that the state
11 proceeding to file -- the Illinois Environmental
12 Protection Agency's filing and proposed amendment to
13 the Pollution Control Board's rules and regulations?
14 A. Yes. And that was really the goal the
15 agency had sought -- Fox Waterway Agency had sought
16 in having this report prepared was to see the state
17 rules changed.
18 MS. McFAWN: When you say the "agency," did you
19 mean the Illinois Environmental Protection Agency?
20 MS. KABBES: The Fox Waterway Agency. Thank
21 you.
22 MS. McFAWN: Thank you.
23 BY MR. HARSCH:
24 Q. And, again, what is your understanding
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1 as to whether the Illinois Environmental Protection
2 Agency will, in fact, be filing such a rule change?
3 A. It was my understanding that the
4 Illinois EPA was not prepared in the next few years
5 to be filing a rule change based on this report for
6 dredging operations.
7 Q. In light of that understanding, did you
8 recommend to your board that they proceed to seek an
9 adjusted standard and ultimately a variance petition
10 to apply just to your agency?
11 A. Yes.
12 Q. And that was the -- remember why we
13 proceeded to draft this variance petition?
14 A. Yes.
15 Q. Shifting from hydraulic dredging, I
16 think you briefly hit upon the alternatives -- that
17 you were looking at alternatives to hydraulic
18 dredging using the fixed confined disposal site that
19 you have at Ackerman Island and the two that are
20 under potential consideration.
21 Will you describe the geotube project
22 briefly to the board?
23 A. Sure. When the agency had started
24 looking at dredging needs, they have identified a
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1 number of sites, potential containment sites, up and
2 down the waterway recognizing we needed to probably
3 have sites every three to six miles to accommodate
4 our dredging operation to truly maintain the entire
5 waterway. That started about the late '80s.
6 Well, the increase in property values, the
7 exodus from the city continuing further west really
8 took a lot of the sites we had initially considered
9 out of consideration as they often became grabbed
10 for housing developments.
11 Therefore, we looked at the issue that we
12 have to find some other alternative way of meeting
13 our agency's charge to dredge -- to be able to
14 dredge the entire waterway if needed and started
15 looking at alternatives to containment sites.
16 Two things we looked at, one was the fact
17 that there had been a loss of wetlands, significant
18 loss of wetlands, in our waterway historically,
19 particularly in the lake system, and we had visited
20 with the Corps of Engineers experimental station
21 folks in Virgin Lake, Mississippi based on the
22 Chicago Corps of Engineers' district engineers'
23 recommendation to talk about some of our needs since
24 they are the dredging experts for the Corps of
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1 Engineers for the nation.
2 At that point, they were just starting to
3 look at some innovative ways of reusing dredge
4 material to build wetland islands that had been
5 lost, and the way they were looking to do this was
6 using technology that had been tried in Europe of
7 actually filling a fabric tube with dredged material
8 and using that as a containment dike that dredged
9 material could be placed behind to create a
10 wetland.
11 They're fairly innovative ideas since we
12 have, obviously, a lot of dredged material, and a
13 lot of wetlands have been lost, and a waterway that
14 depends on wetlands for the recreational activities
15 that our users enjoy.
16 So we started working with the Corps of
17 Engineers' waterways experimental station folks back
18 in about 1993 to look at trying to use that
19 technology to, in fact, rebuild wetlands loss
20 particularly in the shallow lakes that historically
21 had wetlands which would be Grass Lake, Nippersink
22 Lake, and Pistakee Lake.
23 And that's why the 1940s map that we showed
24 you was so important because it really gave us a
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1 good idea where wetlands used to be and what may be
2 good candidate areas to rebuild those wetlands.
3 Additionally, we also looked at problems
4 with the river system particularly and realized
5 there were not large areas of wetlands had been lost
6 on there that we could use this geotube technology
7 or geotextile technology rebuilding wetlands.
8 So in that location or those areas, both
9 locations, we said is there some other way we can
10 have a traveling dredging operation, and, therefore,
11 we looked at other technologies that we've started
12 to become aware of that would process dredged
13 material without having to require construction
14 containment sites, and that would potentially be
15 portable.
16 And that's why we started to look at the
17 Solomon Liquids proposal to have essentially a
18 traveling treatment facility that we could locate up
19 and down the waterway to dredge and then clean the
20 water and allow the effluent water to go back into
21 the system.
22 Q. Turning back to the project you're
23 working with with the Army Corps, is that what you
24 referred to as the geotube?
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1 A. Right.
2 Q. And can you briefly describe how you --
3 where you are on your development plans conceptually
4 to build these wetland islands?
5 A. Yes. We had a number of technical
6 questions to be answered. One problem I found
7 nationally is that the Corps had not used this
8 technology with fine grain sediment like we have in
9 Illinois.
10 They had tried it several places Chestwood
11 Bay, Houston Ship Canal, but in those cases, you use
12 sand to fill the bags, and there was concern some
13 people had regarding fine grain sediment to fill the
14 bags.
15 What we did then last year is build, last
16 summer, a test section of the back to see if we
17 could, in fact, fill it with fine grain sediment and
18 that that bag could stay up and achieve an elevation
19 and last over the winter and our icy conditions we
20 have in our state and the extreme boat action we
21 have and survive throughout those harsh conditions.
22 And, in fact, we did go ahead and build that system
23 last year, and it has survived.
24 Q. If you turn to Petitioner's Group
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1 Exhibit 10, the photograph marked 10-D, is this a
2 photograph of this section with Linda Huff standing
3 on it (indicating)?
4 A. Yes. This is a picture we took of that
5 section of tube that we built in Pistakee Lake at
6 the mouth of one of the channels, and its function
7 is breakwater.
8 MS. EDVENSON: I thought that face looked
9 familiar.
10 BY THE WITNESS:
11 A. This was built essentially July of
12 '96.
13 BY MR. HARSCH:
14 Q. How do you construct an island out of
15 these linear tubes?
16 A. Well, the idea would be to connect the
17 tubes up, so they would perform the function of a
18 perimeter dike and, therefore, create the outer
19 limits of the island, and then we would use those
20 perimeter dikes essentially as the dikes were a
21 confined disposal facility so we can pump dredge
22 material.
23 And in that case, it would be much like the
24 Ackerman Island facility then.
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1 Q. And there would be an overflow weir
2 that would regulate that --
3 A. Correct, some kind of an overflow
4 system that will go ahead and allow the effluent
5 water discharge back into the lake system.
6 Q. When you pump the dredged materials
7 into the geotube, is there a point source effluent
8 from the geotube?
9 A. No. The way -- well, the way we
10 constructed this, there was no point source. The
11 only water being returned back to the lake system
12 was through the weave of the bag.
13 Q. Are you comfortable in the amount of
14 time that it takes to fill a tube and whether
15 that's --
16 A. No. It took us a great deal of time to
17 fill that bag, off and on for about four weeks to
18 fill 140-foot section. You know, granted we were
19 learning, and there was new ideas to be tried, and
20 no one had done this in the nation before, so. . .
21 Q. How will you get around this problem?
22 A. We have been looking at going ahead and
23 seeing if we could keep one of the portals. If you
24 see in that photo, there's essentially little types
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1 of fabric behind Linda coming on top of the bag that
2 are tied. Those are actually portals which dredge
3 pipes can be put into to pump the bag full.
4 In other applications across the country,
5 they've just allowed the effluent water to come out
6 those portals at the end. We couldn't do that in
7 this case, so we didn't. But we're wondering if, in
8 fact, we could in the future to allow that water to
9 go back in, particularly into the interior system.
10 Q. During the creation of the dike, where
11 will that water go?
12 A. The issue right now is -- right now is
13 having us just go through the reef. If we could
14 figure out a way to fill the dike -- fill the bag
15 more quickly and allow it to come out through the
16 portals, that would be excellent, and it will allow
17 us to fill it much more quickly than the weave.
18 Q. That may be a requirement when you
19 construct the dike to be able to construct it in an
20 economical manner?
21 A. Yes.
22 Q. As long as we're at Petitioner's
23 Exhibit 10, if I show you what has been marked as
24 10-A, 10-B, and 10-C, will you describe these
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1 photographs?
2 A. Sure. 10-A is a picture of the
3 Ackerman Island facility showing the narrow cells we
4 currently have. It's a picture of the weir that is
5 from the eastern -- sorry, western cells into the
6 eastern cells from the final cell before it
7 discharges back into the lake system.
8 Petitioner 10-B shows the channel in which
9 the outfall from Ackerman Island discharges into.
10 We thought it was interesting to note when the
11 picture was taken that there was a pretty good flow
12 that day.
13 MS. McFAWN: What do you mean a "pretty good
14 flow"?
15 THE WITNESS: Well, instead of just being a
16 quiet channel-like lake system, there's actually
17 water flowing past the outlet for the containment
18 site. So it's not a quiescent area, but there is
19 water movement.
20 BY THE WITNESS:
21 A. And 10-C is a picture of that channel
22 looking towards the east. The channel effluent is
23 discharged from Ackerman Island.
24 BY MR. HARSCH:
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1 Q. And then, finally, while we haven't
2 described much of it, can you tell me what
3 Petitioner's Exhibit 10-E is?
4 A. We have been looking at sites to try
5 the Solomon Liquids method particularly channels
6 that are dead-end channels that we could work on to
7 use Solomon Liquids mechanical dewatering system,
8 and this is Holly Channel, which is probably a
9 channel that we'll use this technique on.
10 We had tried to come in and dredge this
11 channel mechanically with our amphibious backhoe in,
12 I think, '92, '91, before I came to the agency.
13 Apparently, the material was so soft that as soon as
14 we came into the channel, the neighbor's pier popped
15 up, and it was so watery that the bucket really
16 could not be very easily handled.
17 So it's something that we can't very
18 readily address by mechanical means.
19 Q. Have you marked the locations that you
20 would consider using the geotube technology?
21 A. We.
22 Q. As well as the Holly Channel,
23 et cetera, on Petitioner's Exhibit 8?
24 A. Right. I've got a list of those and
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1 describing what each one is in the lower right-hand
2 corner of the map. It refers to both sides.
3 A, as I described earlier, refers to the
4 proposed Grass Island geotube island site. B was
5 the site for the L10 proposed containment state that
6 the states acquired. C has proposed Jackson Bay
7 geotube site -- geotube island site. D is State
8 Park Boat Ramp, a potential mechanical dewatering
9 site, a channel that may be an appropriate site to
10 try.
11 E is the existing Ackerman Island
12 containment site. F is another channel we
13 potentially could try the mechanical dewatering
14 system on. G is the site of the proposed geotube
15 that could be constructed. H is another potential
16 site for mechanical dewatering system. I is another
17 proposed geotube island site. J is another
18 potential mechanical dewatering site.
19 K is the site where we did install the
20 geotube bag that you saw Linda standing on. And
21 turning the map over, L is the R15 proposed
22 containment site we've described earlier. M is the
23 Holly Channel that you just saw the picture of. And
24 N is an adjacent channel that both M and N use for
L.A. REPORTING (312) 419-9292
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1 mechanical dewatering system.
2 Q. Are these other potential locations of
3 the mechanical dewatering system similar to the
4 conditions depicted in Petitioner's photograph 10-E?
5 A. Yes. In some areas, they're not
6 entirely a backwater channel, but they could be
7 closed off.
8 Q. And how would you close them up?
9 A. You could use a silk curtain or other
10 methods.
11 MR. RAO: Could you describe Exhibit 10 with the
12 geotube?
13 MS. EDVENSON: 10-D.
14 MR. RAO: 10-D. I'm sorry.
15 THE WITNESS: Yes. That is a fabric bag. It's
16 30 feet in circumference. The outer material of the
17 bag is a woven polyester, interior to it is a
18 nonwoven liner that was placed there so as to allow
19 the bag when we suspended it not to allow more than
20 15 parts per million to pass through the weave after
21 about ten minutes of time.
22 That bag was rolled out in site, and we
23 pumped the dredge material into it. We took
24 effluent water. We essentially had a closed system
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1 where we had a hopper barge, kind of a big trash
2 can, that we dumped dirt into that we had excavated
3 in the waterway.
4 We also had water in there. We had a pump
5 at the end of this big trash, pumped it into the
6 tube, and we had a pipe at the end, and we returned
7 the water back to our big trash can so the effluent
8 water kept recirculating and kept adding more
9 dredged material to it to pump that tube up.
10 It's approximately five feet high.
11 MR. RAO: Okay. And it sits on the bed of the
12 lake?
13 THE WITNESS: On the channel bottom, right, on
14 the bed of the lake. There's a scour blanket
15 underneath it to hopefully help it from being
16 damaged by the undercutting of the bag, the bottom
17 sediments.
18 MS. McFAWN: A scour blanket?
19 THE WITNESS: A scour blanket, just a blanket on
20 the bottom so in case there's any severe wave action
21 so that it won't erode the bottom out and cause the
22 bag to sink in one location as opposed to another
23 location.
24 MR. RAO: Thanks.
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1 BY MR. HARSCH:
2 Q. You mentioned that there was an
3 impervious liner?
4 A. A nonwoven liner.
5 Q. A nonwoven liner.
6 You have to utilize the liner, do you not,
7 to keep the fines within the bag?
8 A. Yes.
9 Q. Did the Army Corps projects use a
10 liner?
11 A. No, they did not.
12 Q. If it were -- if it proves to be
13 technically feasible to fill the bag with your fine
14 silk materials, would you choose not to use a liner
15 if you could?
16 A. Yes. If we could keep the fines within
17 the bag without a liner, we prefer not to because
18 what happens is we found in this case is the liner
19 became very quickly clogged with sediment, and for
20 all intentions and purposes very little water was
21 passed through the weave of the bag. So most of it
22 was recirculating.
23 It would be more efficient in filling the
24 bag certainly if there was no liner in the bag, and
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1 the water could just pass through the weave.
2 Q. And have you also observed that tree
3 roots cannot penetrate the inner big?
4 A. Yeah, that was a problem. We hoped
5 that these bags could vegetate in the future once
6 the containment island is established, wetland
7 islands established, because this was a recreational
8 area. We certainly wanted it to look attractive.
9 And when I visited a site in Houston to see
10 where the bags had been built, they, in fact, did
11 have trees growing out of the bags. Cottonwoods
12 started to establish themselves on the bag because
13 it was that time of year we were doing the work, but
14 they very quickly died as we found out when we
15 pulled the seedlings out. As you can see, the
16 seedling roots had basically not penetrated the
17 nonwoven area between the outer woven liner and the
18 nonwoven liner. They couldn't get through the
19 nonwoven liner.
20 Q. You would like to have flexibility to
21 utilize whatever liner system is technically
22 necessary but some flexibility as you carry out
23 your --
24 A. Yes. We'd like to be able to make sure
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71
1 that the fines keep inside the bag, but we'd like to
2 be able to drain the water more efficiently if
3 possible.
4 MR. RAO: Are you aware of any instances where a
5 geotube failed, maybe in this case like an island
6 was not completed yet and washed out the sediments
7 inside the tube?
8 THE WITNESS: One site I visited in Houston they
9 had it in the public fishing dock area so you've got
10 people with knives, and that bag, in fact, had been
11 cut by fishermen with their knives, and what they
12 found they could just do is take Marine glue and
13 fabric and patch it.
14 MS. EDVENSON: Let's go off the record for a
15 second.
16 (Brief pause.)
17 MS. EDVENSON: We're back on the record.
18 BY MR. HARSCH:
19 Q. Earlier you mentioned that you've
20 utilized a mechanical dredging system where you pick
21 up the material and put it in a barge.
22 Are there any drawbacks associated with
23 that system?
24 A. Yes. It then requires us to empty the
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1 bags, so it requires us to essentially double handle
2 the material. So it often ends up being a very
3 expensive method. The barge has to then also be
4 brought to shore to be excavated or to be cleaned
5 out and can be a very time-consulting process.
6 Because of the size of our system, we can't
7 or don't have barges that are like the ones you see
8 on the Mississippi River that are maybe 160 feet
9 long and, you know, 90 feet wide. Our barges have
10 to be small enough to generally fit between our lock
11 system which means they're 20 feet wide and maybe 40
12 feet long. So it's a very time-consuming way to
13 dredge.
14 Q. Do you have to dredge in an area that
15 has -- where you can take the barge to an area where
16 there's a roadway?
17 A. Yes. We need to have access or at
18 least near an access for trucks. Unfortunately,
19 many of the shoreline areas were historically wet
20 soils. So it is sometimes difficult to find a good
21 site where we can bring a large trucking operation
22 in and have heavy equipment and load those trucks.
23 Q. Is, in your opinion, that system
24 feasible to be used up and down your waterway
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1 system --
2 A. No.
3 Q. -- in all of your channels?
4 A. No, it's not a reasonable way for us to
5 dredge in terms of time or cost.
6 Q. Even if the -- will you assume that the
7 confined dredged disposal sites that you construct
8 the ones that you have under consideration, and you
9 even construct a number of the geotextile tube
10 sites, will it still be necessary to carry out some
11 type of dredging operation in the channels and other
12 areas away from these confined dredged disposal
13 sites?
14 A. Yes.
15 Q. And in those areas they're not all
16 feasible to serve by your backhoe; is that correct?
17 A. Correct.
18 Q. And is it this problem which led you to
19 look for other alternative dredging means?
20 A. Yes.
21 Q. And I think earlier you said that the
22 most promising dredging method would be the one you
23 have under consideration with Solomon Liquids?
24 A. Yes, Solomon Liquids' method.
L.A. REPORTING (312) 419-9292
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1 Q. I noticed you've just reached for an
2 exhibit. Which exhibit is that? Is that
3 Petitioner's Exhibit --
4 A. This is not marked.
5 Q. -- 15?
6 A. This particular one is not marked.
7 Q. Petitioner's Exhibit 15?
8 A. Yes.
9 Q. And can you describe briefly in your
10 own words what this system is and why its promised
11 to your agency?
12 A. This system takes dredged material
13 that's excavated from a hydraulic dredge. It pumps
14 it into a system where a flocculent is added after
15 larger grain materials are first removed. Material
16 then that is flocculated goes through a screen
17 system to help remove those flocculated solids and
18 to divert them off into one area and allow those to
19 dewater so they could be separated and trucked away
20 from the site, and that allows the effluent water to
21 then be returned back to the stream.
22 So it becomes a traveling system that we
23 can take anywhere to separate the solids from the
24 liquids in the water in a relatively quick period of
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1 time and allows us to truck those solids away.
2 Q. And you would pump the -- as in your
3 hydraulic dredging, you would pump the cut material
4 and water to that system?
5 A. That's correct. It would be basically
6 designed to hook up to our existing dredge. We'd
7 use our existing dredge to go ahead and excavate a
8 channel area and then, again, pump to this equipment
9 where the flocculent is added and set the sediments
10 separated from the water.
11 Q. What is the status of your negotiations
12 with the vendor?
13 A. We are hoping to have them demo this
14 project this month for us as they're in the area
15 doing another site. That's not going to be feasible
16 at this point. So we're hoping at the end of the
17 summer to work out a contract with them to have them
18 come back to our area and demo that site -- demo
19 that technology, excuse me, for that site.
20 Q. Assuming that it turns out to be
21 technically feasible once you've conducted the test
22 and, again, assuming that the economics can be
23 worked out, does your agency have any plans for
24 purchasing the system?
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1 A. Yes. Our hope would be that we could,
2 therefore, go ahead and actually purchase the unit
3 that we could be using.
4 MR. HARSCH: Can we go off the record for a
5 second?
6 MS. EDVENSON: Yes.
7 (Discussion had off
8 the record.)
9 MS. EDVENSON: Back on the record.
10 BY MR. HARSCH:
11 Q. Miss Kabbes, do you have any intention
12 to use this technology at locations other than just
13 channels?
14 A. Yes. If this technology is feasible
15 for us, we probably would end up using it in the
16 main river itself in lieu of building the R15
17 containment site.
18 Q. And would that involve using the
19 channels that need to be dredged as essentially the
20 repository of the dredge water return water?
21 A. That may be one way of making that
22 system work for us.
23 Q. And if you used it in that manner, you
24 physically isolate the channel from the river?
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1 A. Correct.
2 Q. And then when you finished the dredging
3 project in the river, you would go in then and
4 dredge the channel?
5 A. Correct.
6 Q. I guess in summary, are you aware of
7 any means by which Fox Waterway Agency can, in fact,
8 carry out its mandate to dredge -- maintain the
9 waterway system by dredging and comply with
10 15 milligrams per liter suspended solids?
11 A. It's not practical.
12 MR. HARSCH: That will conclude my direct
13 questioning of Karen Kabbes.
14 MS. EDVENSON: All right. We'll now take a
15 five-minute recess, and then we will do
16 cross-examination.
17 Off the record.
18 (Break taken.)
19 MS. EDVENSON: And we will now have the
20 cross-examination of petitioner's first witness.
21 Miss Howard?
22 MS. HOWARD: Thank you.
23
24
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1 CROSS-EXAMINATION
2 by Ms. Howard
3 Q. Miss Kabbes, do you plan on dredging on
4 the weekends?
5 A. We have in the past, and we may well
6 again in the future.
7 Q. Would that include the confined
8 disposal sites?
9 A. Potentially any site.
10 Q. And the geotubes?
11 A. Yes.
12 Q. Okay. Isn't it true that at this
13 point, there isn't any evidence that has been
14 entered on the record which demonstrates how much
15 money the Fox Waterway Agency will save between if
16 you were to get 100 milligrams per liter total
17 suspended solids limit and an 80 milligrams per
18 liter total suspended solids limit as that would
19 apply to Fox Lake and Pistakee Lake?
20 A. There's been some information that's in
21 the Cochran and Wilken report that talks about a
22 difference, but you're right. As far as
23 applications of the Fox Waterway Agency, there
24 has been no evidence to date.
L.A. REPORTING (312) 419-9292
79
1 Q. And the same would be true on the
2 Nippersink Lake in terms of the difference, the cost
3 savings and the difference between getting a TSS
4 limit between 100 milligrams per liter versus 70
5 milligrams per liter; isn't that true also?
6 A. That's correct.
7 Q. And also for the Fox River, the
8 difference between the cost savings between 100
9 milligrams per liter and 58 milligrams per liter?
10 A. Correct.
11 Q. Then directing your attention to
12 Petitioner's Exhibit No. 4, under the title FWA
13 Response to Proposed Limits, the third bullet point
14 which states achieving less than 100 milligrams per
15 liter costs money, isn't it true that there isn't
16 any evidence that specifically shows exactly how
17 much money you save with achieving less than 100
18 milligrams per liter?
19 A. We have not provided information to
20 date that indicates the amount saved.
21 Q. In terms of the dewatering system,
22 would you be responsible -- would it be best to ask
23 another witness about the best management practices
24 that might be employed at the mechanical dewatering
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1 system if you were to be able to do that?
2 A. It's probably going to be a joint
3 effort to decide the best measured practices that
4 would be employed.
5 MS. McFAWN: Let the record reflect that I think
6 you were including yourself with working with the
7 representative from Solomon?
8 THE WITNESS: Yes, that's correct.
9 MS. McFAWN: Thank you.
10 BY MS. HOWARD:
11 Q. Also directing your attention to
12 attachment one to the variance petition which is the
13 1993 to 1994 effluent result from the Ackerman
14 Island for total suspended solids --
15 A. Yes.
16 Q. -- isn't it true that that chart shows
17 that there was only three -- well, let's take it one
18 at a time.
19 On August 30th of 1993, you achieved a
20 total suspended solids limit of 90 milligrams per
21 liter; isn't that true?
22 A. That's correct.
23 Q. And on September 7th of 1993, you
24 achieved a total suspended solids limit of 100.7
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1 milligrams per liter?
2 A. That's correct.
3 Q. And then on June 17, 1994, you achieved
4 a total suspended solids limit of 82.0 milligrams
5 per liter?
6 A. Correct.
7 Q. Although it says PPM at the top of that
8 chart, it's interchangeable with milligrams per
9 liter, correct?
10 A. Correct.
11 Q. So looking at this chart, there really
12 would be only three times during 1993 or 1994 that
13 you would have surpassed the limit of 80 milligrams
14 per liter; isn't that correct?
15 A. That's correct, but we were trying
16 very, very hard to try and meet 15 parts per million
17 or as close as we can to 15 parts per million.
18 Q. Correct.
19 MS. HOWARD: Okay. That's all the questions I
20 have.
21 MS. EDVENSON: All right. Will there be any
22 redirect?
23 MR. HARSCH: Yes.
24 MS. EDVENSON: Okay. Proceed, Mr. Harsh.
L.A. REPORTING (312) 419-9292
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1 REDIRECT EXAMINATION
2 by Mr. Harsch
3 Q. Miss Howard asked if there was any
4 direct testimony into the record as to the specific
5 costs differential from meeting 100 milligrams per
6 liter versus an 80 standard or any of the other
7 numbers that are presented in Petitioner's
8 Exhibit 4.
9 What are the indirect costs of trying to
10 meet such a number?
11 A. Of meeting 100 versus 80?
12 Q. Yes, if you had to meet 80 versus 100?
13 A. The concern is, obviously, just looking
14 at the data as in Exhibit No. -- I'm sorry, in the
15 Petitioner's -- I want to refer to this as --
16 Q. Attachment one to Petitioner's
17 Exhibit 1.
18 A. Thank you.
19 You can see that even with trying very hard
20 to meet 15 parts per million, there are at least
21 several times we exceeded that. And this was from
22 just a weekday dredging operation where we weren't
23 dredging full time and in some cases not every day.
24 The concern we have is trying to dredge
L.A. REPORTING (312) 419-9292
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1 efficiently. In a dredging operation, it's best to
2 run that equipment more than six to eight hours a
3 day, if at all possible 12 to 20 hours a day or 24
4 hours a day. Trying to meet 100 versus 80 can be a
5 significant difference in how effectively we can run
6 that equipment with the relatively small containment
7 sites we're talking about.
8 Q. How many people make up a dredge crew?
9 A. We generally have three people in our
10 dredge group. If we don't have a booster pump in
11 operation, the booster pump generally adds at least
12 one other person.
13 Q. These are full-time employees?
14 A. Yes. The agency uses full-time
15 employees.
16 Q. Is there increased costs associated
17 with only dredging for a few hours a day versus
18 dredging longer periods?
19 A. Yes. There's certainly time in ramping
20 up, getting the equipment started, and we generally
21 find that we probably have a half hour to an hour of
22 downtime in the morning and in the evening from
23 beginning in closing our operation.
24 So we generally want to work ten-hour days
L.A. REPORTING (312) 419-9292
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1 or longer, if possible, in our dredging operation,
2 and we have for mechanical operations scheduled our
3 crews to work ten-hour days in the summertime.
4 Q. In order to -- I think you testified
5 earlier in order to try to meet 15, you actually
6 limited your dredging to four to six hours?
7 A. Right. And, in fact, the permit
8 application that was submitted to receive the permit
9 for the Ackerman site was based on six hours of
10 dredging per day.
11 Q. While they're not quantified or
12 necessarily quantifiable, are these very real
13 savings to the agency in terms of being able to have
14 a higher limitation?
15 A. Yes, very much so. And, again, the
16 issue comes about if we could also look at
17 contracting out some of our dredging work.
18 We have our own staff that we keep year
19 round to do work. We have hired temporary staff at
20 times, but dredging equipment is very, very
21 expensive. Looking at dredging needs in Grass Lake,
22 it may be economical for us to basically dredge by
23 using a consultant to do that work for us or using a
24 contractor to do that work for us.
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1 And a contractor would bring in larger
2 equipment and would most likely be able to dredge at
3 a cheaper cost per cubic yard than we can based on
4 the equipment we have to use. We can't use those
5 kind of opportunities to use consultants or
6 contractors unless we've got large enough
7 containment sites or containment sites that have
8 enough discharge standards -- a high enough
9 discharge standard to make it economical for a
10 consultant or a contractor to come in.
11 Q. And would the same apply to any
12 confined dredged disposal site that was -- the same
13 concerns for limitations under hours of operation
14 that you would expect at L10 and R15?
15 A. Yes.
16 Q. And would the same concerns also apply
17 to the confined dredged disposal sites that you hope
18 to build geotubes at, the Grass, Nippersink,
19 Pistakee, and Fox Lakes?
20 A. Right. Now, the L10 site and the R15
21 site are a little bit larger than the Ackerman site,
22 but we still have to consider the limitation of
23 hours.
24 Q. I just recalled -- and with the hearing
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86
1 officer's leniency and Miss Howard's lack of
2 objection -- one exhibit I have not discussed that I
3 should discuss, Miss Kabbes, and it's the permit
4 application for the mechanical dewatering system
5 which is Exhibit 11.
6 MR. HARSCH: If I might ask a foundation
7 question on that?
8 MS. HOWARD: I have no objection.
9 MS. EDVENSON: Proceed.
10 BY MR. HARSCH:
11 Q. I show you what has been marked and
12 accepted into evidence as Petitioner's Exhibit 11.
13 Can you describe what this is?
14 A. Yes. It's an application for a permit
15 for construction and operation of a mechanical
16 dewatering system, and it notes several sites that
17 the system could be tried on.
18 Q. And this -- does your current Army
19 Corps of Engineers permit allow you to carry out
20 this mechanical dewatering system?
21 A. In our discussions of the Corps, we can
22 go ahead and request by letter to be able to use the
23 hydraulic dredging system and the mechanical --
24 previously authorized mechanical dredging sites.
L.A. REPORTING (312) 419-9292
87
1 Q. So this is the only permit that you
2 would need then to use?
3 A. The only additional permit we have to
4 obtain, yes.
5 MR. HARSCH: I have no further follow-up
6 questions.
7 MS. HOWARD: I don't have any further questions
8 either.
9 MS. EDVENSON: No other cross? Okay.
10 Mr. Rao, would you like to ask some
11 questions?
12 MR. RAO: Yeah, I have a few questions.
13 Regarding this confined disposal facility that
14 you are planning to build at site L10 and R15, could
15 those facilities be designed to achieve the
16 recommended suspended solids concentration effluent
17 limitation?
18 THE WITNESS: Well, anytime a permit application
19 is submitted to the EPA --
20 MR. HARSCH: I would like to -- a point of
21 clarification, when you say a recommended effluent
22 limitation, are you talking about the 15 milligrams
23 per liter or the agency's --
24 MR. RAO: The agency's recommendation.
L.A. REPORTING (312) 419-9292
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1 MR. HARSCH: Thank you.
2 THE WITNESS: So you're asking if they could be
3 designed to meet the 80 to 100 parts per million?
4 MR. RAO: Um-hum.
5 MS. McFAWN: Well, actually, they recommend the
6 R15 at 58.
7 MR. RAO: At 58 and the L10 at 100.
8 THE WITNESS: The Corps design manuals suggest
9 that because of considerations of wind and other
10 issues that it may be very hard to meet those
11 numbers. All I can go on is they're historical
12 numbers, and with limited dredging, we've been able
13 to meet those numbers with Ackerman.
14 Now, Ackerman is also smaller, so the wind
15 effects are not as great. The larger facility on a
16 more windy day can resuspend sediments and cause
17 higher total suspended solids and discharge.
18 So to answer your question, could they be
19 designed --
20 MR. RAO: Maybe later on Miss Huff may answer
21 this question because, you know, usually the
22 settling facilities are generally designed to have
23 certain concentrations into effluent water reducing
24 retention time or increasing the site of the
L.A. REPORTING (312) 419-9292
89
1 facility.
2 So I was just curious since these are
3 certain plant facilities that that would be a
4 probability to meet the recommendation.
5 THE WITNESS: And the reason I'm hesitating to
6 answer your question is when I go to the Corps and
7 ask for design assistance, they don't go down to
8 these low numbers. So they really can't give me
9 good advice. All I can go on is historically what
10 we've been able to achieve.
11 MR. RAO: With regard to the geotubes, are there
12 any concerns regarding the dredged materials being
13 contaminated especially where you want to use these
14 geotubes to construct wetlands? Do you have any
15 comments on that?
16 MR. HARSCH: We'll get into the actual data
17 which is attached to the petition as part of
18 Miss Huff's testimony, but I'll be more than happy
19 to have the witness answer your question as well.
20 THE WITNESS: We're lucky that the watershed for
21 the Fox River and the Chain O'Lakes system is
22 historically a big agricultural and recreational
23 facility. So it isn't the historic nature of heavy
24 industry or industry that would have had discharges
L.A. REPORTING (312) 419-9292
90
1 that would have most likely resulted in contaminated
2 sediments, and the sediment analyses that have been
3 taken generally don't show anything to be
4 significantly excited about.
5 MR. RAO: And the data that's being submitted as
6 part of your petitioner, that was collected from the
7 Fox Waterway, you know, the Chain O'Lakes and the
8 Fox Waterway system?
9 THE WITNESS: Yes. There's a lot of data on our
10 waterway system from our sediments.
11 MR. RAO: Yeah. Currently with your confines
12 facility at Ackerman Island, what happens to the
13 dewatered dredged material when you clean up, you
14 know, the site?
15 THE WITNESS: The last couple of cleanups, the
16 person who has won the bid has taken that material
17 and has used it and mixed it with sand or other
18 material and used it for topsoil.
19 In fact, I think now that person is
20 operating a facility and finds that dredged material
21 is very useful to use in mixing with this compose
22 material for resale.
23 MR. RAO: Okay. And you stated that the relief
24 that you're requesting should not be limited to a
L.A. REPORTING (312) 419-9292
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1 specific location, and it should be granted on a
2 nonsite-specific basis.
3 In terms of TSS limitations, would site
4 specific water quality conditions have any bearing
5 on whether you can meet those requirements? Because
6 if we grant you nonsite-specific relief say, you
7 know, for example, for 80 milligrams per liter --
8 and maybe for now we'd say 80 may be okay for Fox
9 Lake -- and in the future you want to have -- you
10 know, want to dredge at some other location, would
11 water quality in that location have any bearing on
12 whether you can meet the TSS limitations?
13 THE WITNESS: I'm not sure I understood the
14 question. So the question is whether or not you
15 gave us an area-wide --
16 MR. RAO: Yeah.
17 THE WITNESS: -- restriction, could we -- what
18 was that?
19 MR. RAO: You know, would the water quality in
20 that particular area wherever you want to dredge,
21 will that have any bearing on whether you can meet
22 the standard or not?
23 THE WITNESS: Will the existing water quality
24 have any standard on whether or not we can meet
L.A. REPORTING (312) 419-9292
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1 that?
2 MR. RAO: Yeah.
3 MR. HARSCH: A point of clarification, the
4 solids that result in total suspended solids don't
5 come from the solids in the water necessarily. They
6 come from a resuspension of the sediments.
7 THE WITNESS: Right.
8 MR. HARSCH: So it's not really the water
9 quality.
10 MR. RAO: Because I think in the agency's
11 recommendation, they do talk about the background
12 water quality conditions, and they use that as one
13 of the factors to base their recommendations on.
14 So I assume that the background water
15 quality changes from location to location. So what
16 I was asking was whether that has any bearing in
17 terms of granting you blanket relief.
18 THE WITNESS: See, from our perspective, and I
19 think Miss Huff will probably testify more on this,
20 it's a flowing system. The water from Grass Lake
21 flows downstream into Nippersink and Fox and
22 Pistakee Lakes and out of the Fox River.
23 So why there is better water quality in
24 various locations, a lot of this fine grain sediment
L.A. REPORTING (312) 419-9292
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1 stays in suspension for a couple days and with that,
2 it will travel through the system. So that's why
3 we're looking more in an area-wide limitation.
4 MR. RAO: Okay. I may ask Miss Huff some
5 questions later on this.
6 Thank you. That's all I have.
7 MR. HARSCH: I have one follow-up clarification
8 question.
9 FURTHER REDIRECT EXAMINATION
10 by Mr. Harsch
11 Q. I think Mr. Rao referred to the
12 sediment analysis that had been provided as part of
13 the petition. I direct you to Petitioner's Exhibit
14 1, attachment three, is that a listing of inorganic
15 analyses -- of organic analyses and volatiles that
16 were preformed on the sediment in the system?
17 A. Yes.
18 Q. And there's a map at the end, I
19 believe, of -- Miss Huff has pointed out to me that
20 there is a map available which is not included in
21 that attachment which gives the site locations.
22 Is this a copy of that map --
23 MS. HUFF: Yes, it is.
24
L.A. REPORTING (312) 419-9292
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1 BY MR. HARSCH:
2 Q. -- from the same report (indicating)?
3 A. Yes.
4 MS. EDVENSON: Okay. Let the record reflect
5 that the site identification numbers are shown on
6 the map which counsel is holding.
7 And can we have that entered into
8 evidence?
9 MR. HARSCH: Yes. I'd like to introduce that
10 into evidence as Petitioner's Exhibit 18.
11 MS. EDVENSON: Is there any objection?
12 MS. HOWARD: No.
13 MR. HARSCH: We'll provide copies of that along
14 with Petitioner's Exhibit 17.
15 MS. EDVENSON: Exhibit 18 is entered into
16 evidence.
17 (Petitioner's Exhibit No. 18
18 marked for identification,
19 5/6/97.)
20 BY MR. HARSCH:
21 Q. And if you look at also attachment four
22 to Petitioner's Exhibit 1, is this analysis on
23 ammonia and PH phosphorus -- strike that. Strike
24 that question.
L.A. REPORTING (312) 419-9292
95
1 MR. HARSCH: I have no further follow-up
2 questions.
3 MS. EDVENSON: Miss Kabbes, I have a couple
4 questions.
5 THE WITNESS: Sure.
6 MS. EDVENSON: Could you get out the large map
7 with the alpha letters on it?
8 I'm going to be working from respondent's
9 opening statement the items that Miss Howard
10 indicated were the items on which there is a
11 disagreement for purposes of the limitation on total
12 suspended solids.
13 The first mention was made of a reference
14 that said from Nippersink Lake to geotubes. Would
15 that be I on the map?
16 THE WITNESS: And your question again is?
17 MS. EDVENSON: Would that be I on the map, the
18 reference --
19 THE WITNESS: Oh. You're referring to
20 Petitioner's --
21 MS. EDVENSON: -- of disagreements with
22 geotubes?
23 THE WITNESS: Okay. So I'm looking at Document
24 No. 4, and you're asking about?
L.A. REPORTING (312) 419-9292
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1 MS. EDVENSON: No. We're looking at
2 Petitioner's Exhibit No. 8.
3 THE WITNESS: Okay.
4 MS. EDVENSON: And we're looking for the
5 location of the points which Miss Howard identified
6 as being the points of disagreement with the
7 petitioner.
8 THE WITNESS: Okay.
9 MS. EDVENSON: One point of disagreement on TSS,
10 the first one she mentioned, was from Nippersink
11 Lake to tubes, is that I on the map?
12 THE WITNESS: Yes. That's proposed Nippersink
13 Lake, geotube site, that's correct.
14 MS. EDVENSON: Okay. The next one she mentioned
15 was from Pistakee Lake to tubes, is that K on the
16 map?
17 THE WITNESS: The Pistakee Lake geotube site is
18 not located on it, but that would be near K.
19 MS. EDVENSON: Okay. But it is not K?
20 THE WITNESS: That's correct. It's not K.
21 MS. EDVENSON: All right. The next one she
22 mentioned was from Fox to Ackerman, would that be
23 E?
24 THE WITNESS: The Ackerman Island discharge,
L.A. REPORTING (312) 419-9292
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1 yes, E.
2 MS. EDVENSON: And the next one she mentioned
3 was from Fox to tubes, is that located on this map?
4 THE WITNESS: G.
5 MS. EDVENSON: That is G?
6 THE WITNESS: Um-hum.
7 MS. EDVENSON: Okay. And the next one was from
8 the Fox River to R15?
9 THE WITNESS: Yes, and that's on the other
10 side.
11 MS. EDVENSON: Is that L?
12 THE WITNESS: That's L, correct.
13 MS. EDVENSON: Okay. Good. And then regarding
14 the mechanical dewatering system disagreement, I'm
15 wondering if all of those sites are located on the
16 map by alpha letter, and I identify those as D, F,
17 H, J, M, and N. Those are all the sites that are
18 listed as referencing mechanical dewatering.
19 Are there any mechanical dewatering
20 proposed sites that are not identified by alpha
21 letter on the map?
22 THE WITNESS: No, there are not.
23 MS. EDVENSON: Okay. And, again, that's
24 sites -- we're talking about D, F, H, J, M, and N.
L.A. REPORTING (312) 419-9292
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1 MS. EDVENSON: Okay. Good. Thanks very much.
2 FURTHER REDIRECT EXAMINATION
3 by Mr. Harsch
4 Q. A follow-up question, those mechanical
5 dewatering sites that you've just answered a
6 question about, those are the sites that are
7 currently under consideration with Holly Channel
8 being the leading candidate for the initial test; is
9 that correct?
10 A. That's correct.
11 Q. You hope to use this technology up and
12 down the Fox River and throughout the channel; is
13 that correct?
14 A. That's correct.
15 (Ms. McFawn exited the
16 proceedings.)
17 (Brief pause.)
18 MR. HARSCH: I'm ready to call, when we
19 reconvene, Linda Huff. I think we're through with
20 Miss Kabbes.
21 MR. RAO: I have one more question for
22 Miss Kabbes.
23 Regarding the geotubes, you said the
24 material is designed so that the discharge from the
L.A. REPORTING (312) 419-9292
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1 tube will meet 15 milligrams per liter TSS?
2 THE WITNESS: The non-point discharge, right.
3 MR. RAO: And it's non-point discharge, right?
4 THE WITNESS: Correct. It's non-point
5 discharge, correct.
6 MR. RAO: So this limitation that we see in
7 Petitioner's Exhibit 4 when they talk about, I
8 think, ranges from 100 to 80 depending on the site,
9 does that relate to the, you know, old flow
10 suspension?
11 THE WITNESS: I have them -- we relate to both
12 because if you remember we talked about potentially
13 relining that inner lining of the tube to make it
14 more efficient by having higher total suspended
15 solids.
16 MR. RAO: So with the modification then the
17 discharge will be at a higher total suspended solids
18 level?
19 THE WITNESS: That's my understanding.
20 MR. RAO: Okay. Thank you.
21 THE WITNESS: As well as the overflow from the
22 containment site that would be created by tubing the
23 outer rim.
24 MR. RAO: And is it your understanding that this
L.A. REPORTING (312) 419-9292
100
1 tube cannot be measured to meet the recommended
2 levels?
3 THE WITNESS: The tubes themselves have been
4 measured to date to meet the 15 parts per million.
5 The problem is in filling the tubes, the fine grain
6 sediment, in an efficient fashion. It was a very,
7 very inefficient and very costly method to fill
8 them. And so our hope is that if we have some
9 leniency on that total parts we can use to fill
10 those tubes, total suspended solids, we can go ahead
11 and fill them more effectively and more efficiently
12 and less costly.
13 MR. RAO: Instead of 15, you think if it's
14 raised to 100 milligrams per liter then you'll be
15 able to meet your operation and limitation?
16 THE WITNESS: That's a step in the right
17 direction. And, again, we're going to have to check
18 data. I think we actually tried doing that that way
19 to, I believe, make it easier for them to construct
20 a dam that will drain better.
21 MR. RAO: For instance, I think the agency has
22 specified 70 milligrams per liter, do you think that
23 will have any imposing problems in terms of how you
24 rate your geotubes?
L.A. REPORTING (312) 419-9292
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1 THE WITNESS: It could. Once again, we're
2 trying to figure out a way to build these so
3 effectively that we won't have to.
4 MR. RAO: So are you saying that at this point
5 in time you still don't know whether you will be
6 able to achieve that level?
7 THE WITNESS: We can achieve the level, but
8 the question is the cost in filling the tube
9 effectively, and that's why using 100 parts per
10 million should give us the ability to fill that --
11 more flexibility to fill the tube more effectively.
12 MR. RAO: Okay. Thanks.
13 MS. EDVENSON: Mr. Harsh, we're going to have
14 additional testimony from experts related to the
15 geotubes today, are we not?
16 MR. HARSCH: No.
17 MS. EDVENSON: Oh, okay. Then I do have a
18 question about the geotubes myself.
19 I believe we heard testimony that indicated
20 that the Army Corps of Engineers was using a
21 permeable fabric with a nonpermeable liner and that
22 your use was with a nonpermeable liner, correct?
23 THE WITNESS: Let me clarify, the liner was not
24 described as permeable. It's just a nonwoven
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1 liner. In all practicality, it becomes nonpermeable
2 after a while. It was designed to allow the water
3 to pass through it.
4 MS. EDVENSON: Is the nonwoven liner -- what
5 kind of a material is the nonwoven liner?
6 THE WITNESS: It looks like, if you can, a thick
7 felt. I did not bring the fabric samples with me.
8 If I remember, I think it may be a
9 polyester-propylene type of fabric.
10 MS. EDVENSON: So it's maybe a polyester
11 product, but it appears to be fabric?
12 THE WITNESS: Right. It's clearly fabric.
13 MS. EDVENSON: I have another question about the
14 geotubes.
15 Would it be possible to use a geotube
16 perimeter to create an island that could not be
17 characterized as a wetland?
18 THE WITNESS: It may be possible to do that with
19 our fine grain sediment and our peak bottom lake.
20 That's probably not practical. The Army Corps of
21 Engineers looked at that, and they felt it was not
22 appropriate to do that. I don't think they felt
23 they could create a solid piece of land.
24 MS. EDVENSON: I was going to say if it was
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1 possible, what would prevent the Fox Waterway Agency
2 from doing that after having reached the arrangement
3 that they're interested in wetland sediment?
4 THE WITNESS: Our partner in this is the
5 Illinois Department of Natural Resources. They're
6 actually at this point funding the Corps' work, and
7 they are going to be funding the cost of the first
8 fabric bag. They also have entered into an
9 agreement with us that they will be the owners of
10 the created islands.
11 MS. EDVENSON: Okay. Then I had a question
12 about petitioner's exhibit -- rather, excuse me,
13 attachment three and the references that were made
14 to what I will call full sediment analysis that's
15 been done on the lakes in the past, and that is, can
16 you tell me something about these studies, and can
17 you also tell me whether there have been any other
18 studies that have been conducted since 1987 or
19 before 1987?
20 THE WITNESS: We have taken sediment samples at
21 various times for various projects and done various
22 types of sediment analyses.
23 MS. EDVENSON: Okay. Is that something you do
24 on a regular basis?
L.A. REPORTING (312) 419-9292
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1 THE WITNESS: Because we haven't found too many
2 hot spots, we probably don't do that that regularly.
3 MS. EDVENSON: Okay. When you say "too many hot
4 spots," does that information include data from what
5 you characterize as hot spots?
6 THE WITNESS: This data characterizes what was
7 found during the Kudrna report.
8 MR. HARSCH: It's contained in petitioner's
9 attachment two.
10 MS. EDVENSON: As contained in what? I can't
11 hear you.
12 THE WITNESS: In the attachment, I guess, two.
13 MR. HARSCH: Attachment two to Petitioner's
14 Exhibit 1 has some of that information in it as
15 well.
16 MS. EDVENSON: Good. All right. Thank you very
17 much.
18 MR. HARSCH: One clarification before we go.
19 MS. EDVENSON: Off the record, please.
20 (Discussion had off
21 the record.)
22 MS. EDVENSON: Okay. I believe we have a
23 clarification from Miss Kabbes about the remarks
24 that we were just discussing.
L.A. REPORTING (312) 419-9292
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1 THE WITNESS: Right. When I'm referring to hot
2 spots, I'm just talking about areas that maybe have
3 certain items that we don't want in our dredge
4 material generally, referring to areas, for example,
5 of high lead that we would normally not be dredging,
6 those are areas that often marinas may have been
7 used for boat refilling areas.
8 We're generally not dredging those
9 locations.
10 MS. EDVENSON: Okay. Thanks very much. We'll
11 go off the record now, and we'll take a lunch.
12 (Whereupon, a lunch recess was
13 taken reconvening at 1:40 p.m.)
14 MS. EDVENSON: We can go back on the record, and
15 we can continue at this time with petitioner's case
16 in chief.
17 Would petitioner's counsel like to call the
18 next witness?
19 MR. HARSCH: Yes. At this point in time, I'd
20 like to call Linda Huff.
21 MS. EDVENSON: And will the witness please be
22 sworn?
23 (Witness sworn.)
24
L.A. REPORTING (312) 419-9292
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1 WHEREUPON:
2 LINDA HUFF,
3 called as a witness herein, having been first duly
4 sworn, testified and saith as follows:
5 DIRECT EXAMINATION
6 by Mr. Harsch
7 Q. Mrs. Huff, will you state your full
8 name for the record?
9 A. Linda L. Huff.
10 Q. And who are you employed with?
11 A. Huff & Huff, Incorporated.
12 Q. And what's your position at Huff &
13 Huff, Incorporated?
14 A. I'm president.
15 Q. I show you a copy of what has been
16 marked and received into evidence as Petitioner's
17 Exhibit 12, is that a true and accurate copy of your
18 resume?
19 A. Yes, it is.
20 Q. Will you briefly summarize your
21 education and professional qualifications?
22 A. I'm a chemical engineer, and I also
23 have an MBA from the University of Chicago. I've
24 had approximately 25 years in the environmental area
L.A. REPORTING (312) 419-9292
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1 working first with the U.S. Environmental Protection
2 Agency and then as an independent consultant and
3 then, finally, as president of Huff & Huff for the
4 last 17 years.
5 I've been involved in numerous evaluations
6 of water quality regulations when they were first
7 promulgated in Illinois pertaining specifically to
8 economic impacts of those regulations, looking at
9 cost and benefits of various pollutants.
10 In addition, in the last 17 years, I've had
11 experience in looking at specific waste waterway
12 impacts and other kinds of water quality analyses
13 that have been necessary to identify impacts related
14 to point source discharges.
15 Q. And, in addition, has Huff & Huff, your
16 company, been involved in similar-type projects?
17 A. Yes, we have.
18 Q. Attached to your resume are a list of
19 various articles that you have authored and
20 co-authored?
21 A. That's correct.
22 Q. Based on your understanding of the
23 Pollution Control Board's water quality regulations
24 from your involvement initially in the water quality
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1 standard portion plus the 20-some odd years of
2 experience, do you have an opinion as to whether or
3 not the 15 milligram per liter effluent limitation
4 for total suspended solids is appropriate for
5 dredging operations?
6 A. Yes, I have an opinion.
7 Q. And what is that opinion?
8 A. My opinion is that it is not an
9 appropriate limit.
10 Q. Why is that?
11 A. First of all, the standard that was
12 initially developed for the 15 milligrams per liter
13 was based on work that had been done by
14 Dr. Patterson evaluating industrial discharge
15 control technology that specifically used control
16 source technology such as clarifiers to maintain
17 that kind of limit for environmental wastewater.
18 That was the primary focus at that time,
19 and there were other numbers that were developed for
20 municipal types of discharges as well, but the sole
21 source was really the industrial discharge.
22 Those kinds of discharges also have
23 different types of sediment that they would be
24 involved with removing in terms of particle sizes,
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1 constituents that you would be involved with
2 handling, and that's really the sense of the
3 information that was presented in those early
4 hearings when that number was being derived.
5 Q. Is it theoretically technically
6 possible to meet 15 milligrams per liter from
7 dredged effluent?
8 A. I would say that it's not possible on a
9 consistent basis.
10 Q. Why is that?
11 A. There are other factors that enter into
12 achieving that number. When we're talking about
13 dredged material, we're talking about a distribution
14 of particles that come from, in this case, sediments
15 where you have sands and materials that are going to
16 readily set out as well as very fine grained silk
17 and clays.
18 Those materials have very small particle
19 sizes, and by their very nature are very difficult,
20 require long, quiescent times in order to settle,
21 and can be resuspended at very low scouring
22 velocities.
23 Q. If we were using a hydraulic dredge to
24 dredge a waterway, is the water portion that is sent
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1 to a confined dredged disposal operation the water
2 that is normally found in that waterway?
3 A. Yes, it is.
4 Q. And what effect would the total
5 suspended solids level in that water have on the
6 effluent from the confined dredged disposal site?
7 A. That existing water quality
8 concentration would also have to be removed if you
9 were trying to achieve a 15 milligrams per
10 liter value if the lake water itself is about
11 15 milligrams per liter.
12 So it would require settling even beyond
13 what the lake itself has been able to provide.
14 Q. Are you aware of any other studies or
15 any studies that are in this record to date
16 concerning appropriate -- more appropriate -- strike
17 the question.
18 Are you aware of any studies in this record
19 as it exists concerning what other states do in
20 terms of regulating dredging operations?
21 A. Yes.
22 Q. And what studies are those?
23 A. I would refer to attachment five of the
24 NIPC study that was prepared by Cochran and Wilken
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1 where they looked at a variety of states and
2 inquired as to how they handle dredged materials
3 from a permitting point of view as well as from an
4 effluent point of view.
5 There were a variety of techniques that
6 have been used by various states to try to handle
7 this issue, and I would say that there's a
8 combination of suspended solids and turbidity limits
9 used in combination of effluent numbers or looking
10 at incremental values above background, looking at
11 points downstream.
12 So there really is a variety of techniques
13 that people have tried to use to set limits for
14 dredging activities.
15 Q. Have you had occasion at Huff & Huff to
16 contact some of the states that are discussed in
17 attachment five to Petitioner's Exhibit 1 as a
18 follow up to this report?
19 A. Yes, I have.
20 Q. And what were the results of that
21 follow up?
22 A. We were interested in some of the
23 states that had listed a 30 milligram per liter
24 value with a 45 dealing max value since that was the
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1 lowest other value that had been disclosed in that
2 particular document, and in talking with the state
3 of South Dakota specifically, they have a variance
4 procedure --
5 MS. HOWARD: Objection, hearsay. And we don't
6 know the identification of who they talked to.
7 MS. EDVENSON: Mr. Harsh?
8 MR. HARSCH: I think it's routine for an
9 environmental professional -- it's in the same
10 manner in which the report itself was prepared -- to
11 contact environmental regulatory agencies and
12 discuss their standards and whether or not they have
13 alternative means by relief from those standards,
14 and that's what Mrs. Huff is talking about.
15 If not, the agency is going to have a great
16 amount of difficulty in any other regulatory
17 proceeding where they're proposing effluent
18 limitations or modifications and relying in part on
19 other state standards. It's routine in this
20 profession to conduct business in that manner, and a
21 reasonable person would rely on that sort of an
22 inquiry.
23 MS. EDVENSON: Thank you. The objection is
24 overruled. I believe the board would find it
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1 interesting for the witness to continue the
2 statement.
3 You were referring to South Dakota.
4 THE WITNESS: That's right.
5 BY THE WITNESS:
6 A. In conversation with representatives
7 from the state of South Dakota regarding their
8 limits, they did say that there's a variance
9 procedure that they can utilize to grant numbers
10 between 90 to 100 milligrams per liter depending on
11 the site-specific conditions because, again, they
12 have a flat number for their state.
13 MS. McFAWN: Excuse me. That flat number being
14 the 30 milligrams?
15 THE WITNESS: The 30 milligrams per liter.
16 MS. McFAWN: And is this variance procedure a
17 statutory or regulatory procedure or just an
18 internal South Dakota regulatory agency?
19 THE WITNESS: They did call it a variance
20 procedure, but I'm not sure how formal that process
21 is.
22 MS. McFAWN: Thank you.
23 BY THE WITNESS:
24 A. I think that there were other states
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1 that were listed also within that Cochran and Wilken
2 document, and you can see that they have a variety
3 of procedures.
4 But there's also something referred to as
5 best professional judgment, and, actually, we
6 queried some of the states where that term had been
7 used just to try to find out what it was they
8 actually meant by that term. And the
9 representatives of the two states that we contacted
10 suggested that that term would not be as correct as
11 if they looked at the overall benefit of the project
12 compared to the impact that is going on.
13 They did not actually endorse that kind of
14 best professional judgment terminology but would
15 rather say that they, of course, are concerned about
16 certain factors such as the quality of the stream
17 that's being discharged into the relative ratios of
18 discharge to the stream, other factors that they
19 would look at.
20 But the most important point to them was
21 what was the benefit to this project and making sure
22 that the dredging operation was warranted based on
23 that kind of operation. I thought that was a little
24 different kind of information than what was actually
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1 in Cochran and Wilken study because it has a little
2 bit different focus. And I thought that that was
3 important in terms of trying to come to grasp with
4 this particular situation that we have.
5 BY MR. HARSCH:
6 Q. I think Miss Kabbes briefly hit upon
7 the nature of the sediment, but have you had an
8 opportunity to review attachment four to
9 Petitioner's Exhibit 1 and other information
10 regarding the sediments in question in this
11 proceeding?
12 A. Yes, I have.
13 Q. Can you briefly describe those
14 sediments for the board?
15 A. In attachment three, there are some
16 values that were given in the Kudrna study and also
17 the map that was attached that presents a key
18 basically for those site numbers one through ten
19 that they used --
20 Q. That would now be something that's been
21 marked as Petitioner's Exhibit 18?
22 A. That's correct.
23 Q. The map that you handed me earlier
24 today?
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1 A. That's correct.
2 Because that represents the main boat
3 channel, which is the area that the Fox Waterway
4 Agency is also interested in dredging in the
5 future. So that is a -- even though it's older
6 data, it should be representative of one of the
7 primary areas where dredging is going to be
8 continued.
9 So an analysis was prepared for a wide
10 variety of parameters including heavy metals,
11 polynuclear aromatics, and pesticides.
12 Q. Did that data you reviewed flag any
13 problems in that sediment that might result from the
14 dredging of those sediments?
15 A. No. I would say the results are very
16 supportive of the fact that this material is
17 generated from agricultural uses in soiled erosion.
18 Q. Had you had an opportunity to visit the
19 chain with Miss Kabbes?
20 A. Yes, I have.
21 Q. Are you otherwise generally familiar
22 with the chain?
23 A. Yes.
24 Q. Do you agree that conclusions in the
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1 report prepared by the Army Corps of Engineers,
2 which are attachment two in Petitioner's Exhibit 1,
3 and the testimony from Miss Kabbes that
4 sedimentation is a significant problem in this area?
5 A. Yes.
6 Q. Okay. And why do you think that it's a
7 problem?
8 A. There have been studies since the 1970s
9 talking about problems in the Chain O'Lakes that
10 relate to sedimentation. Just knowing the
11 system itself and the importance that it has as
12 a recreational source to maintain an active
13 recreational water body that sedimentation -- given
14 the size of the watershed that's coming in and the
15 fact that you're going from a river to a lake system
16 back to a river is it's a perfect condition to allow
17 settling of materials that normally would be carried
18 by the Fox River further downstream.
19 Q. What types of changes, if any, have
20 occurred as a result of that sedimentation?
21 A. As the Corps of Engineers discussed
22 that there has been a loss of rooted vegetation in
23 the lake system, and there has been a change in the
24 types of fish -- the predominant fish species in the
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1 lake.
2 Now, this would be associated with a
3 combination of factors, not just the suspended
4 solids, but water level changes and other factors,
5 but certainly suspended solids would be one of the
6 factors that could be affecting that change in
7 species.
8 Q. What change in the fish species have
9 been observed to have occurred?
10 A. For example, northern pike used to be
11 in this lake in a much greater extent, and stocking
12 had been done. That's one fish species they feel
13 has been effected by water levels. In addition,
14 even bluegills and the pumpkin seed fish have
15 declined in overall numbers, and what they've seen
16 is a predominance of yellow bass in the last ten
17 years has become a much more predominant fish
18 species. Now, that's the change that's occurred.
19 Q. Do you have an opinion as to whether or
20 not you believe that the dredging to increase the
21 depths of channels will have an impact on water
22 quality?
23 A. Yes.
24 Q. And what is that opinion?
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1 A. I think that it was most graphically
2 answered in the Corps of Engineers' study. In there
3 attachment two on Page 87, they had prepared -- it's
4 Figure 11.
5 They had prepared a figure that would show
6 the difference between a three foot -- if you had a
7 three-foot depth and the boats were passing over
8 what would happen to the suspended solids versus a
9 six-foot depth and an eight-foot depth, and clearly
10 you can see based, you know, on their analysis
11 that --
12 Q. Excuse me a second, Linda. You're
13 referring to attachment two to Petitioner's
14 Exhibit 1 and where in that record?
15 A. Page 87, which is Figure 11.
16 Q. Thank you.
17 A. (Continuing.) -- in looking at the
18 daily cycle of suspended solids, you can see that
19 the depth in the lake would have an important effect
20 on the peak suspended solids levels that would
21 occur.
22 Q. And what is your understanding for that
23 change?
24 A. Is that with greater depth, you avoid
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1 the resuspension of the sediment that's on the
2 bottom of the lake, and that's what contributing to
3 those peaks of up to 200 milligrams per liter when
4 you have a very shallow depth as you're resuspending
5 material that's fine grained.
6 Q. And that would be resuspended by both
7 boat traffic and wind?
8 A. Correct.
9 Q. If I look at those tables, it almost
10 looks like there's, what, a 50-percent reduction
11 potentially?
12 A. I think that you can look at the
13 figure, first, where a depth is three feet and the
14 depth is six feet, and if you just looked at the
15 maximum concentrations, you would see a three-feet
16 maximum concentration go up to 200 milligrams per
17 liter; whereas with the second figure at a depth of
18 six feet, you can see that the maximum was less than
19 100.
20 Q. What impact does total suspended solids
21 in general have on the natural system?
22 A. I think that there's two places in our
23 variance position that we discussed that. One, the
24 Corps of Engineers has some information but also
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1 attachment six which is a study that was prepared by
2 the state of Maryland talks about turbidity and
3 suspended solids. And, of course, the chronic
4 effects that they're talking about really -- I mean
5 that they're relating to for water quality purposes
6 deal with either smothering of benthic organisms,
7 b-e-n-t-h-i-c, or as far as fish are concerned,
8 either gill damage, possible changes in reproduction
9 or feeding habits and then submerged vegetation.
10 And in the conclusions of that study, they
11 provide citations for different water quality
12 concentrations that affect these different systems.
13 I think it's really important to note that those are
14 water quality concentrations, not effluent
15 concentrations, and that generally the range of 100
16 to 500 milligrams per liter is what they established
17 in their conclusion as far as talking about levels
18 where chronic adverse effects occur.
19 Q. And those would be effects when the
20 water quality of the water body itself is that
21 level?
22 A. That's correct.
23 Q. Not a discharge into that waterway?
24 A. That's correct.
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1 Q. Is there a difference between turbidity
2 and total suspended solids?
3 A. Yes, there is.
4 Q. Can you explain what those two terms
5 really are? I think some of these reports refer to
6 both turbidity and total suspended solids.
7 A. There are -- one, they really provide a
8 different measurement. A suspended solid is really
9 a measurement of weight. You're in essence
10 measuring the weight of the solids that are
11 remaining in a water sample; whereas turbidity,
12 you're really looking at light penetration.
13 And there are no direct correlations
14 between the two, but sometimes the terms become --
15 are used interchangeably. But turbidity is much
16 more related to the light effects, and it's really a
17 function of particle size to a greater extent.
18 That's the key parameter for a turbidity
19 measurement.
20 Q. Is there a difference -- first of all,
21 is there any known correlation between turbidity and
22 total suspended solids?
23 A. Not that I'm aware of.
24 Q. Are you familiar with the Illinois
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1 Environmental Protection Agency's recommended
2 variance limitations that are set forth in
3 Petitioner's Exhibit 4?
4 A. Yes, I am.
5 Q. What is your understanding of the basis
6 of those limitations?
7 A. I believe those numbers are based on
8 factors that would include the existing water
9 quality of those particular water bodies into which
10 dredging overflows or effluence would be occurring.
11 Q. Are you aware of data such as
12 Respondent's Exhibit 1 and other data which would
13 show that there are test results from sampling in
14 those waterways with numbers higher than what they
15 recommended that have been sampled?
16 A. There would be -- I'm just trying to
17 see if I reviewed all those water bodies.
18 I think it's possible that there are
19 maximum values that are higher.
20 Q. That would have been a much better
21 question. I apologize. Thank you for answering
22 that question correctly.
23 Have you had an opportunity to examine the
24 impact of the difference between, for example, a
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1 limitation of 80 milligrams per liter at Ackerman
2 Island versus 100 milligrams per liter that the Fox
3 Waterway Agency prepares to accept?
4 A. Yes. I tried to evaluate that in a
5 couple different ways just to provide some
6 additional information to the board, and one of
7 those ways was to basically look at the difference
8 between the solids that would be removed and then
9 the solids that would be discharged based on those
10 two different effluent limits.
11 Q. Is that analysis set forth in
12 Petitioner's Exhibit 13?
13 A. Yes, it is.
14 Q. Can you describe that analysis, what
15 led to the preparation of Petitioner's Exhibit 13?
16 A. This particular exhibit was based on
17 some of the information that was also provided in
18 attachment five which is the Cochran and Wilken
19 study, and in there they had provided some
20 information regarding typical suspended solids
21 levels that could be taken up during a dredging
22 activity. So that if you had 100,000 cubic yard
23 dredging activity, they developed a table that would
24 show depending on the size of the dredge that in
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1 terms of gallons per minute, how many hours you
2 would operate. Then that would lead to a certain
3 level of solids that you would be taking in.
4 So, for example, in the first row, I took
5 Ackerman Island at 100 milligrams per liter TSS. I
6 show that 85,068 tons of solids would be removed,
7 and that would be for 100,000 cubic yard operation
8 that would be conducted, which in essence would be
9 over the lifetime of the variance period.
10 But that's the amount of solids that could
11 be removed from the Fox Waterway system, and that
12 assumes 150,000 milligrams per liter. That's the
13 concentration of solids that can be actually taken
14 out from the system.
15 The next column which talks about total
16 solids discharge, in that one I footnoted it at the
17 bottom with an A just to give you the calculation,
18 but 136 million gallons in essence represents the
19 cubic yardage that you would be removing during the
20 dredging period of 100,000 cubic yards. So it's
21 just a conversion. 8.34 is the unit conversion
22 factor, and then the 100 milligrams per liter would
23 be the discharge that we'd be talking about and
24 then, again, converting from pounds and tons.
L.A. REPORTING (312) 419-9292
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1 So over 100,000 cubic yard project, we'd be
2 removing approximately 85,000 tons and then 56 tons
3 would be coming back into the river system as the
4 discharge. If you look at the 80, that would be
5 basically 45 tons versus the 56.7 tons.
6 We're still talking about a percentage
7 removal of 99.93 versus 99.95 percent removal over
8 the project.
9 Also for the geotubes --
10 Q. Before we move to that, you also looked
11 at the proposed site for confined dredged disposal
12 on a river, did you not, where the agency has
13 proposed 58 milligrams per liter effluent
14 limitation?
15 A. Yes, I did, and that's the bottom row
16 where it says new CDF at 58 milligrams per liter. I
17 assumed in that case that it would just be 100,000
18 cubic yards coming from -- going to that location,
19 and that's why you see the same total solids
20 removed. I didn't divide them up among facilities.
21 I just made a simplified assumption.
22 And then the 32.9 would be the total solids
23 that would be discharged out of that system which
24 would be at 99.96 removal.
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1 Q. So if I understand this for your
2 calculation, you're assuming that approximately
3 85,000 tons of bottom sediment that has settled out
4 in this area would be dredged, and what we're
5 talking about here is how much total suspended
6 solids would be discharged back into the receiving
7 stream from the confined dredged disposal activity
8 assuming all, and that number is the 56.7 tons or
9 the 45.4 or the 32.9; is that correct?
10 A. Correct.
11 MR. RAO: Is it total solids or total suspended
12 solids?
13 THE WITNESS: Those would be solids, total
14 solids.
15 MR. RAO: Total solids.
16 BY MR. HARSCH:
17 Q. So if all of those solids that were in
18 the discharge were to settle out back into the lake
19 system, then the dredging activities -- that's where
20 the 99.93, 99.95, and 9.96 is pretty relevant?
21 That's how many -- what percentage of the tons of
22 solids that they, in fact, would be taking out of
23 the lake system?
24 A. That's correct. And just for further
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1 clarification regarding the geotube numbers, those
2 total solids removed are based on assuming a
3 7,000-foot tube which is the perimeter tube that I'm
4 talking about and assuming that we would have two
5 and a half cubic yards per foot of material that
6 would basically yield about 15,000 cubic yards of
7 solids of material in the geotube itself.
8 So that is just representing that tube
9 portion. But, again, it was just to try to give
10 kind of an order of magnitude of what would be
11 happening there. And in that particular case,
12 because these solids are more compact or a more
13 dense material, that's going actually into the
14 geotube. We tried to estimate what the percent
15 solids would be in that geotube itself, and we used
16 400,000 milligrams per liter.
17 And that's just an estimate. We didn't
18 have any analytical data for that, but that gives us
19 then for one geotube, if we just look at that,
20 that's basically 5,000 tons. And, again, assuming
21 what is coming out of it, we're looking at just
22 eight million gallons, basically, of material at 100
23 milligrams per liter would give us 3.3 tons that
24 would be returning to the water system.
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1 Q. And, again, depending upon what
2 location the agency has recommended more restrictive
3 limitations, 80 and 70, et cetera?
4 A. That's correct. So it's basically to
5 show the incremental differences in the effluent
6 standards -- that the effluent standards create in
7 terms of the total solids that are being discharged
8 back to the system.
9 Q. And then did you do the same for the
10 mechanical dredging dewatering project we're talking
11 about?
12 A. Yes, I did. And this, again, was just
13 based on the test study of 10,000 cubic yards
14 because that's what the request was. And in this
15 case, the total solids generated is 32.9 tons, and
16 that was based on a 90-percent removal.
17 Q. Earlier I think you referred to South
18 Dakota looking at what the benefit of the dredging
19 project was. Do you see a benefit to the system
20 dredging occurring?
21 A. Do I see a benefit to the system?
22 Q. Yes, the Fox River chain system.
23 A. Yes, I do.
24 Q. Do you see any difference based on your
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1 analysis as set forth in Petitioner's Exhibit 15 on
2 the short-term, long-term impacts if you regulate
3 something at 100 milligrams per liter or 80
4 milligrams per liter or 70 or 58 depending upon what
5 site we're talking about?
6 A. I think that those numbers -- I mean,
7 we're very close on these numbers, I think, in terms
8 of 80 versus 100 milligrams per liter, and in
9 looking at those numbers, I go back to look at --
10 what we have is a discharge that's maybe from the
11 Ackerman Island system to CFS.
12 We have a lake system or a water system
13 that is much larger, and, in fact, the Ackerman
14 Island system specifically as you can see that is a
15 channel. The materials that are overflowing are --
16 it's the nature of those materials that I think are
17 important for us to consider.
18 For example, even though Fox Waterway has
19 tried to meet 15, they're meeting about 50, 40 to
20 50, on average, and that's because they have very
21 fine grain material that is being resuspended due to
22 wave action, wind action on their basis. And, if
23 fact, the lake system is -- you could characterize
24 as 30 or 40 milligrams per liter on average itself.
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1 It is that these materials when they are
2 discharged -- if we discharged the 80 versus the
3 100, it's going to be about the same kind of
4 material, which is this finer grain material that is
5 going to have a very low scouring velocity. So that
6 if there is movement in the channel or in the lake,
7 those materials are going to stay in suspension
8 longer because if they would have settled out, they
9 would be in the confined disposal area already.
10 So I think that it's having a flexibility
11 though to evaluate what is the real effect of going
12 up to 100 milligrams per liter. We're talking an
13 incremental number, and we don't want to have an
14 adverse effect, environmental effect, but we really
15 need to know how are those particles being
16 transported and how are they being handled in the
17 channel or in the lake. If we get that level for
18 our variance proceeding, it will allow us a time to
19 do some studies to see if, indeed, we should be at
20 that level, and part of the variance proceeding is
21 to evaluate data.
22 Looking at the quality of it, I don't see
23 that the incremental difference between those two
24 numbers would cause a significant difference in the
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1 environmental effect given the kinds of materials
2 that we think is going to be coming out of these
3 bases. It's very fine grain material that's going
4 to stay suspended.
5 And that's why we can ask for that number
6 because we don't think that there will be a large or
7 maybe not even an immeasurable difference in the
8 ultimate water quality that goes back to the lake
9 from this area once some mixing has occurred.
10 I think that mixing with water that's
11 already at 40 milligrams per liter that we're going
12 to be coming into that kind of number and how long
13 is it going to take to -- you know, if we don't have
14 deposition, then we're going to have mixing. And I
15 think that's where the issue comes from, from the
16 environmental point of view. Are we going to have
17 deposition, or are we going to have mixing? Because
18 if we have mixing, then truly it will mix within the
19 lake river system and --
20 MS. EDVENSON: Miss Huff, are we going to have
21 what or mixing?
22 THE WITNESS: Deposition.
23 MS. EDVENSON: Deposition?
24 THE WITNESS: In other words, if the solids
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1 settle. You know, that's a concern. You don't want
2 those settling because then you run into some of the
3 effects like they talk about benthic smothering or
4 having over effects. But if it is staying in
5 suspension, then it would be like another kind of
6 chemical that you would allow a mixing because it
7 will be mixing within the aquatic environment.
8 And we do have -- and if we can think about
9 that, then we can say okay, Ackerman Island has a
10 two CFS discharge. We had an exhibit that just
11 showed the flow rates of some of the different
12 lakes, and summer low flow based --
13 BY MR. HARSCH:
14 Q. You're referring to Petitioner's
15 Exhibit 14?
16 A. Correct. (Continuing.) -- which was
17 data that had been prepared, I believe, by the
18 Illinois State Water Survey.
19 It shows flow rates actually for all of
20 those lakes, and even though we might be in a
21 specific channel for our discharge, there is going
22 to be mixing that occurs within that channel, and
23 then the lake itself is really part of a riverine
24 system where flow is going to continue. So it seems
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1 likely to me that mixing will occur in the lake
2 environment.
3 Q. You've observed the channel to which
4 Ackerman Island disposal site discharges; is that
5 correct?
6 A. Yes, I have.
7 Q. Did you notice sediment buildup or
8 sediments developed in that channel?
9 A. No, I didn't.
10 Q. And that channel then leads to the lake
11 to which Ackerman Island is said to discharge?
12 A. Right, to Fox Lake.
13 Q. So is it your -- do you have an opinion
14 as to whether or not deposition will occur, the
15 solids will settle out, within what would be a
16 normal mixing zone for that discharge?
17 A. My opinion would be that the channel
18 itself has very good flow in it, and it also has a
19 wetland on the other side, but it's a -- that
20 particular flow continues and then basically goes
21 back into the Fox Lake, but there would be mixing
22 within that area, and I don't believe that those
23 solids would settle until they reached back into the
24 lake system or much further downstream.
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1 Q. Have you looked at what would
2 potentially be a mixing zone?
3 A. I started on that pursuit until I
4 realized that especially for Ackerman Island, it's a
5 more channel system that a river system. So I
6 haven't completed analysis of what a mixing zone
7 would look like. But just looking at the -- if the
8 agency's goal would be to have a water quality value
9 of 80, and, of course, we're at 100, it obviously
10 would not take very long for us to be able to
11 achieve that from a mixing point of view.
12 It wouldn't require -- a mixing zone would
13 be sufficient to achieve that kind of number.
14 Q. Would that be one of the things you
15 might look at during the study that we're going to
16 conduct during a life of the variance?
17 A. Yes, it would be.
18 Q. And would the same types of
19 observations apply to the other points that
20 you've -- of the discharge locations that we've
21 talked about that you have personally observed?
22 A. Yes.
23 Q. While we're referring to lakes, these
24 are really part of an inner connective refer system;
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1 is that not correct?
2 A. That's correct.
3 Q. And you do see that in Exhibit 14 the
4 summer flow rates from those various lakes?
5 A. That's correct.
6 Q. I think in my opening statement I said
7 that we stipulated or agreed that dredging had a
8 temporary adverse effect on water quality.
9 Do you agree with that characterization?
10 A. That dredging has a temporary adverse
11 effect?
12 Q. Yes.
13 A. Yes.
14 Q. Can you compare that temporary adverse
15 effect with the beneficial effects that you
16 previously talked about?
17 A. I think that you're going to have a
18 disturbance in the short run in a dredging area
19 where by its very nature it collects the solids that
20 are on the bottom which would include anything on
21 the bottom, just benthic organisms in that short
22 area, and also would probably increase turbidity in
23 the short run.
24 But those are temporal effects, and when
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1 you look at the magnitude of what you can remove,
2 that will have a much more positive effect on a
3 long-range basis for the overall lake quality.
4 So you have a trade-off between a
5 short-term impact and a more large-term maintenance
6 that would lead to reduction of suspended solids in
7 the whole system. So you have this trade-off
8 between a short-term area and provided a more
9 long-term benefit.
10 Q. You're familiar with the test that Fox
11 Waterway Agency wants to conduct with Solomon
12 Liquids, are you not?
13 A. Yes, I am.
14 Q. And you understand that they're
15 proposing to conduct that test now on Holly Channel?
16 A. Yes.
17 Q. And you physically have observed Holly
18 Channel?
19 A. Yes.
20 Q. And do you believe that Holly Channel
21 can be isolated from the main waterway?
22 A. Yes.
23 Q. If Holly Channel is isolated, do you
24 think that it will be -- what will be the
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1 environmental impact of discharging the return water
2 from Solomon Liquids treatment system into Holly
3 Channel?
4 A. Well, there will be additional solids
5 that will be discharged back into that channel.
6 Currently, it's a very silted area that probably has
7 very limited use.
8 I think that by using management practices
9 to ensure that, such as a silk curtain or a silk
10 barrier, at the end of that channel that you can
11 minimize materials that are not -- to me what the
12 unknown is how far are the solids going to carry
13 that out of this system.
14 They're at a higher concentration, and it's
15 very likely that they should deposit within a short
16 distance, and I think another person will address
17 that in greater detail. But if they don't, then you
18 just need to have a precaution at the end of that
19 channel that you can cut it off and make sure that
20 you don't have deposition going into the main
21 river.
22 I think with that procedure, then at least
23 you can observe -- I don't think there will be any
24 environmental impact in terms of organisms or the
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1 river itself. It will just be in that very limited
2 area where the test is going on.
3 Q. You understand --
4 MS. EDVENSON: Excuse me, Counsel. May I
5 interrupt us for a moment? Is the Holly Channel in
6 your petition?
7 MR. HARSCH: It's described -- the agency wanted
8 us to be specific as to where we would propose doing
9 the test, and in our response to the agency's
10 variance recommendation, we told you that we
11 intended to do this in a channel, and Karen has
12 testified that we intend to carry that out on any
13 one of a number of locations that are included in a
14 permit application that's also an exhibit, and then
15 you went through with Karen on the locations of
16 those, and I think there was a clarification
17 question that Holly Channel is the leading candidate
18 right now to do this testing.
19 MS. EDVENSON: Thank you.
20 MR. HARSCH: And if you look at Petitioner's
21 Exhibit 8, Holly Channel is M on the back side.
22 MS. EDVENSON: Well, I knew it was on the map,
23 but I didn't find it in the petition.
24 MR. HARSCH: The reason why it's not is we were
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1 talking about variances from the system wide to
2 allow us to use these technologies throughout the
3 system, and the agency has objected to that, and
4 that's why we've come back on our response to that
5 to clarify where the points are for active
6 consideration for both the geotube technology as
7 well as the other tube confined disposal sites and
8 the numerous locations for the potential test for
9 the mechanical dewatering system.
10 MS. EDVENSON: Okay. Thank you. Let's go off
11 the record for just a moment. Why don't we take
12 five minutes?
13 (Ms. McFawn exited the
14 proceedings.)
15 (Break taken.)
16 MS. EDVENSON: Back on the record.
17 BY MR. HARSCH:
18 Q. Mrs. Huff, assuming that Holly Channel
19 is the location for the mechanical dewatering test,
20 is it your understanding that the agency would be
21 dredging from the end of the channel which is in the
22 foreground of the photograph, side to side to down
23 to the mouth of the channel?
24 A. That's my understanding.
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1 Q. Then would there be -- what concern on
2 bottom deposits would exist if you're going to
3 dredge the entire bottom?
4 A. There would be no concern as far as
5 remaining benthic organisms within that stretch.
6 The question is you would not want material to go
7 beyond Holly Channel.
8 Q. So as long as they isolated it then
9 that didn't occur, and there wouldn't be any concern
10 of deposition of sediments in that channel as they
11 dredge it?
12 A. Correct.
13 Q. Would you expect -- is there a
14 difference in the settling rates between the
15 solids that are expected to be discharged from the
16 mechanical system and the solids that are discharged
17 from the Ackerman Island or from the geotube system?
18 A. There could be differences based on the
19 fact that they would be coming from different
20 locations. So there will be variability in the
21 particles.
22 Q. Would the addition of a flocculent to
23 the mechanical dewatering system have an impact on
24 the settleability of those solids?
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1 A. Yes. It would be -- it would enhance
2 the settling of those solids.
3 Q. Have you had a chance to review the
4 material safety data sheet for Photafloc 1126-S,
5 which is Petitioner's Exhibit 16?
6 A. Yes.
7 Q. Do you think that the normal
8 utilization of this flocculent aid would result in
9 any concerns over water quality impact of that
10 flocculent being discharged?
11 A. No.
12 MR. HARSCH: I have no further direct questions
13 of Mrs. Huff.
14 MS. EDVENSON: Thank you, Counsel.
15 We now have the cross-examination of the
16 witness.
17 CROSS-EXAMINATION
18 by Ms. Howard
19 Q. Mrs. Huff, isn't it true that you have
20 requested -- the FWA has requested 100 milligrams
21 per liter as the effluent limits for total suspended
22 solids across the board for all of the water bodies
23 that we've talked about today?
24 A. Yes.
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1 Q. And could you tell me, is that
2 recommend -- that request based on ambient water
3 quality?
4 A. No.
5 Q. Is it based on technology?
6 A. I would say it's based on to a certain
7 extent technology with the idea that we would like
8 to have the flexibility to maximize the operations
9 for removing solids. So it's given some
10 flexibility, and it's also looking at levels that we
11 feel would not cause environmental effects.
12 Q. Is it also possible that this is also
13 based on an economic type of concern?
14 A. Yes.
15 Q. I believe in the petition on page --
16 let's see.
17 Attachment one, Page 5, of the petition,
18 isn't it true -- I'll wait until you get there.
19 A. Okay.
20 MR. HARSCH: Attachment?
21 MS. HOWARD: One. It's actually the petition,
22 Page 5 of the petition.
23 BY THE WITNESS:
24 A. Oh, Page 5.
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1 BY MS. HOWARD:
2 Q. In the first full paragraph in the
3 fourth sentence, isn't it true that it states in
4 there that in 1993, 1994 the effluent TSS for the
5 existing confined disposal sites average 42
6 milligrams per liter with the range of ten to 101
7 milligrams per liter? Is that correct?
8 A. Yes.
9 Q. And also that this average limit and
10 range is comparable to the results of the Chicago
11 Corps of Engineers report which was submitted as
12 attachment two which petitioner also shows?
13 A. Yes.
14 Q. Those are comparable?
15 MR. HARSCH: Well, the petition speaks for
16 itself. They don't differ in numbers.
17 BY MS. HOWARD:
18 Q. But you do agree that that is the range
19 and that is the average that the Ackerman Island
20 site is able to achieve, correct?
21 A. Yes.
22 Q. There isn't any data on record that
23 shows actual sampling results to determine the
24 dilution ratios from the Ackerman Island discharge;
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1 is that correct?
2 A. That's correct.
3 Q. And there isn't anything in the record
4 right now, there isn't any sampling data that would
5 show, what the dilution ratios from any other of the
6 proposed or the present existing geotube site on the
7 Chain O'Lakes, correct?
8 A. I think when you talk about dilution
9 ratios, you're actually saying has there been a
10 study done to look at the change in, let's say,
11 suspended solids, for example, in that area into the
12 lake and --
13 Q. How quickly the solids would dilute and
14 dissipate, what's the discharge? There isn't any
15 studies on the record right now that show what that
16 dissolution ratio or results would be from any of
17 the sites or any of the lakes within the Chain
18 O'Lakes at this time?
19 A. That's correct.
20 Q. And with respect to the Maryland
21 turbidity study, you've testified that 100
22 milligrams per liter is a safe limit as far as
23 you're concerned for aquatic life, correct?
24 A. What I said is that they recognize that
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1 adverse chronic effects occur at 100 to 500
2 milligrams per liter for a water quality number. I
3 think what I may have said 100 was -- I just want to
4 clarify that when I talked about 100 at different
5 times when we were talking about the effluent
6 standard that we didn't believe that that would have
7 adverse effects.
8 Q. Okay. But you're saying that the 100
9 milligrams per liter as an effluent limit you
10 believe is a safe limit for aquatic life?
11 A. Yes, for these applications, very
12 specific.
13 Q. And you've based that assessment -- and
14 your conclusion is based on the Maryland turbidity
15 study and the NIPC study, correct, that's what you
16 testified to?
17 A. On both of those documents and the
18 site-specific characteristics that we're talking
19 about.
20 Q. Okay. Then in the conclusion on the
21 Maryland turbidity study on Page 10 doesn't it state
22 that turbidity at levels between 100 and 500
23 milligrams per liter had been found harmful to
24 aquatic biota?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. And it also states on Page 10 that the
3 preferred range of turbidity for fisheries'
4 management is between 25 and 80 milligrams per
5 liter; isn't that true?
6 A. Yes.
7 MS. EDVENSON: Is that an example of the use of
8 the word turbidity as being synonymous with
9 suspended solids, yes?
10 THE WITNESS: Yes.
11 MS. EDVENSON: Okay. Thank you.
12 BY MS. HOWARD:
13 Q. You just testified according -- that
14 you had reviewed the flocculent data sheet which has
15 been marked as Petitioner's Exhibit No. 16.
16 Can you tell me where -- isn't it true that
17 this information in here is more with respect to
18 what effect -- contact with human body this
19 flocculent could have?
20 A. Yes, it is. And we contacted the
21 manufacturer to try to obtain information that would
22 basically be specific to aquatic toxicity, and this
23 is a similar product to one that they have developed
24 aquatic information on, and our understanding is
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1 that they said the LD 50 would be about 500 parts
2 per million, but we would be looking at dosage rate
3 that would be lower than that.
4 So my opinion is based on that information
5 plus the usage.
6 Q. Isn't it true that LD 50 is a term
7 that's used for mammal testing rather than aquatic?
8 A. Fish. It can be used for fish.
9 Q. If this toxicity information is
10 available, is it something that you would consider
11 entering into the record?
12 A. Yes. I don't have a written copy of it
13 yet, but we would like to have that too.
14 Q. Okay.
15 MS. EDVENSON: When would you have a written
16 copy of it?
17 THE WITNESS: It would probably take three to
18 four days for them to mail us, you know, the
19 additional material and safety data sheets.
20 MS. HOWARD: I am finished with my
21 cross-examination.
22 MS. EDVENSON: All right. Thank you,
23 Miss Howard.
24 Will there be any redirect?
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1 MR. HARSCH: Yes, there is.
2 REDIRECT EXAMINATION
3 by Mr. Harsch
4 Q. It's your understanding that the
5 Maryland study refers to the adverse effects
6 beginning to occur in a range between 100 to 500
7 milligrams per liter total suspended solids.
8 As a water quality number of the body that
9 would be indicative of the water quality of the body
10 as a whole?
11 A. Yes.
12 Q. In your opinion, is that a different
13 impact than discharging an effluent under these
14 specific conditions with 100 milligrams per liter
15 total suspended solids?
16 A. Yes.
17 Q. That's because you would expect the
18 number then to drop out to -- drop lower than that
19 as that effluent is assimilated into the water body?
20 A. Correct.
21 Q. In response to the questions concerning
22 the dilution ratios not being specifically prepared
23 in this record, is that the type of information we'd
24 be looking for during the study program to develop
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1 the appropriate long-term relief?
2 A. Absolutely.
3 Q. And does Petitioner's Exhibit 14 show
4 that there is a flow available in receiving streams
5 to dilute or allow mixture to occur?
6 A. Yes.
7 Q. It's just not specific dilution ratios;
8 is that correct?
9 A. That's correct.
10 Q. So in your opinion dissolution, in
11 fact, will occur at all the locations we've
12 discussed?
13 A. Yes.
14 MR. HARSCH: I have no further questions.
15 MS. HOWARD: I have one follow-up question.
16 MS. EDVENSON: Go on.
17 RECROSS-EXAMINATION
18 by Ms. Howard
19 Q. On Page 4 of your response to the
20 agency recommendation in the middle paragraph, if
21 there isn't any data to demonstrate the dilution
22 ratios which you just testified to, then isn't it
23 true that the statement in the sixth or seventh line
24 down in that full paragraph, however, the proposed
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1 limit at issue is an effluent limit, and the TSS and
2 the effluent will be quickly diluted after
3 discharge, has no support in the record at this
4 time?
5 A. Oh, I think that information that's
6 been provided that talks about the fact that this is
7 a two CFS discharge volume that we're talking about
8 flow rate from the Ackerman Island one --
9 Q. Correct?
10 A. -- and then in looking at the lakes as
11 we talked about in Exhibit 14 and the size of those
12 water bodies and the fact that they have flow rates
13 does provide some information. It's not as specific
14 as you would like it to be, but I think it's a
15 start. I mean, it provides a basis to work for.
16 MS. HOWARD: That's all I have.
17 MS. EDVENSON: All right. Thank you very much,
18 Miss Huff.
19 MR. HARSCH: At this time, I would like --
20 unless there are any additional follow-up questions
21 from the board --
22 MS. EDVENSON: Well, let's go off the record for
23 just a minute to discuss how we're going to deal
24 with questions that we have for the witness.
L.A. REPORTING (312) 419-9292
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1 Off the record.
2 MS. EDVENSON: All right. We have concluded the
3 testimony of Miff Huff, and we will have the
4 introduction of an additional exhibit, and counsels,
5 I believe, agreeing that this exhibit will be
6 entered into evidence, and it will be Exhibit 19,
7 Petitioner's Exhibit 19.
8 (Petitioner's Exhibit No. 19
9 marked for identification,
10 5/6/97.)
11 MS. EDVENSON: The first part of it 19-A will be
12 Neutron Floc additional data, and the second part of
13 it, 19-B, will be will in the nature of a comparison
14 document. And the respondent agrees to entering
15 these into evidence with the understanding that they
16 will be receiving a copy as soon as possible which
17 will be in the next two or three days.
18 Okay. And we've also discussed questions
19 that I and Mr. Rao have for the witness, and we may
20 have for other witnesses that we hear later today,
21 and we will be putting those questions into writing
22 and sharing those with both parties.
23 Both parties will have an opportunity to
24 respond in writing that writing being received by
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1 the board no later than May 19th. We will do that
2 in order to provide the parties with time that they
3 need to, if possible, complete their testimonial
4 case today before we are required to leave the
5 building.
6 All right. Let's proceed then with our
7 petitioner's third witness.
8 MR. HARSCH: At this point, I'd like to call
9 Michael Hodges.
10 MS. EDVENSON: Mr. Hodges, will you please be
11 sworn?
12 (Witness sworn.)
13 WHEREUPON:
14 MICHAEL HODGES,
15 called as a witness herein, having been first duly
16 sworn, testified and saith as follows:
17 DIRECT EXAMINATION
18 by Mr. Harsch
19 Q. Mr. Hodges, will you please state your
20 name and who you're employed by?
21 A. My name is Michael Hodges. I'm
22 employed by Solomon Liquids/TIC, The Industrial
23 Company.
24 Q. If I show you what has been marked as
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1 Petitioner's Exhibit 15, is it a true and accurate
2 copy of a product brochure information document that
3 Solomon Liquids has put together?
4 A. Yes.
5 Q. Miss Kabbes has testified of the Fox
6 Waterway Agency's desire to use your system.
7 Will you briefly describe your system and
8 how you would intend to see it utilized in her
9 application?
10 A. This technology is a combination of a
11 mechanical process essentially a chemical or
12 flocculation process. The mechanical process
13 represents the very latest in technologies related
14 to liquid solids separations especially of the
15 course nature.
16 The material is taken out mechanically
17 through linear vibrating shaking screen systems and
18 particle cut down to nominally 100 microns.
19 From there, the slurry is moved through a
20 process that's in the display or in the photographs
21 of it that looks like large solar panel units.
22 There's actually a very fine engineering screening
23 system utilizing dredged water screening
24 technologies.
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1 The flocculated material is caught up on
2 the surface of the grid, and water is allowed to
3 fall through the grid service into catch pans. The
4 solids accumulate. They start slowly sliding down
5 the screen or rolling down the grid service.
6 They're displaced by solids that come after them.
7 So the case essentially is accumulated
8 again on the surface, the water falls through as
9 opposed to a clarifier process where the flocculated
10 material would fall through a water medium, and the
11 water would be decantured or taken off the top, and
12 the solids would be covered from the bottom.
13 This inverted reasoning or this inverted
14 logic towards the approach means that we're not
15 waiting for the flocculated material to fall through
16 a water medium. Because we don't have that wait
17 period, we get a very high solids removal capability
18 or capacity, and we also usually have a drier solids
19 cake.
20 Now, that's all dependent upon the nature
21 of the material itself. We're dealing with organic
22 material that tends to be of a wetter nature, but
23 we've taken steps so that we've got overlapping
24 capabilities. So the course material, where course
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1 material is present and removed, is removed at
2 whatever rate is being pumped.
3 A medium grade material, which would be a
4 fine sand, for instance, which is prevalent in a lot
5 of waterways can be removed gravitationally, and
6 then ultrafines that may be categorized as organics
7 can be flocculated and removed in this flocculated
8 form.
9 It is, in the industry, a breakthrough as
10 far as high process rates and across-the-board
11 capabilities.
12 Q. Has this system been employed anywhere
13 in Illinois?
14 A. Yes.
15 Q. Where?
16 A. Humboldt Park for the Chicago Parks
17 Department.
18 Q. And it's the same system that your
19 proposing to use as a test run at Fox Waterway?
20 A. There are few modifications to it, but
21 basically it's the same system.
22 Q. And where else has this technology been
23 used in similar applications?
24 A. In the Rocky Mountain region, we've
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1 done a total of about five jobs; five different
2 lakes, golf courses, municipal parks, home owners
3 associations. Doing Humboldt Park for Chicago Parks
4 Department was the first application in the upper
5 midwest.
6 Q. Do you use a flocculent aid in your
7 system?
8 A. Yes.
9 Q. How do you determine what flocculent to
10 use?
11 A. We do a very thorough exhaustive
12 flocculation study of the samples submitted by the
13 client and then confirm by our own field testing,
14 our own sampling gathering that our field people
15 do. It's sent back to a laboratory.
16 That lab independently confirms the type of
17 flocculent that needs to be used in any kind of
18 natural waterway as opposed to applications that we
19 have in mining-type operations.
20 We have a high degree of sensitivity for
21 using flocculents that are harmless to fish so we
22 use anionic flocculent on that chain.
23 Q. Have you taken samples from the Fox
24 Waterway?
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1 A. Yes, we have.
2 Q. And what does those results show?
3 A. The results show that it's an excellent
4 candidate for the technologies, good performance
5 rates, fairly high case quality, and, relatively
6 speaking, low turbidity rates.
7 Q. You've seen the photographs of Holly
8 Channel?
9 A. Today I have, yes.
10 Q. And you've discussed the appropriate
11 channels with Karen which has given rise to the
12 identification of other potential sites, correct?
13 A. That's correct.
14 Q. One of those considerations was the
15 ability to isolate the channel from the waterway?
16 A. Yes.
17 Q. Why is that a concern?
18 A. From our perspective the concern is
19 relative to a political end and sensitive issues and
20 discharge. We want to make sure that we're
21 considered to be good clients with any government
22 agency we're dealing with and sensitive to whatever
23 the discharge requirements or the cake quality would
24 be.
L.A. REPORTING (312) 419-9292
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1 Q. You return approximately ten percent of
2 the solids that you dredge back to the waterway?
3 A. No, one percent.
4 Q. Excuse me. One percent. I'm sorry.
5 A. Yeah.
6 Q. Your approximate concentration?
7 A. 10,000 parts per million.
8 Q. I knew there was a ten in there
9 someplace.
10 And that's the normal means by which you
11 operate this system?
12 A. That's correct.
13 Q. Has that operation been successfully
14 carried out in other locations you just testified
15 to?
16 A. Yes.
17 Q. What normally occurs in terms of impact
18 with that discharge?
19 A. Normally, because the material is gone
20 through at process -- a flocculation process, the
21 thing that we don't capture with our technology are
22 the occasional broken flocculus, but they're
23 flocculents.
24 So by their very nature they seek
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1 settlement very quickly. So we work with a client
2 to let them know ahead of time what to anticipate,
3 and then we discharge into an area where the
4 settling can occur so we can go back in with a
5 dredge and clean it up, and the job -- it usually
6 takes about a day so or we can settle it behind a
7 silk fence so that the water doesn't escape, doesn't
8 carry very much of any of the broken flocculus back
9 into the water.
10 Q. Do you expect that the solids, these
11 broken flocculus, from the test to be discharged --
12 the discharged would be back into Holly Channel?
13 A. That's correct.
14 Q. You would expect those solids to settle
15 out?
16 A. Almost immediately.
17 Q. What do you base that on?
18 A. Settling rates are relative to
19 flocculation. It's exactly the same premises as the
20 clarifier. Essentially, Holly Channel would be a
21 very large natural clarifier or one end of it would
22 be, and utilizing -- the taking advantage of the
23 fact that the flocculated material has a propensity
24 to settle wherever the discharge is in the Holly
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1 Channel is where the preponderance of settling is
2 going to be.
3 Q. If you use a silk curtain, then you'd
4 expect that material to accumulate behind the silk
5 curtain?
6 A. There's two things. One, if you go to
7 silk curtain, you definitely create a boundary
8 there, a wall, to keep the flocculated solids given
9 an area of quiescence, and also because flocculated
10 solids tend to be by their very nature much larger
11 than the fine particulars that we would originally
12 see that enables that barrier to be more effective.
13 Q. And then it would be your plan then to
14 dredge that accumulation of solids in the last
15 couple of days of the operation?
16 A. That's correct. That's what we've done
17 before.
18 Q. And that's what you would expect to do
19 here?
20 A. With the approval of the agency.
21 Q. You've sat through the testimony today
22 of Karen Kabbes and Linda Huff and heard the
23 concerns the agency has with the appropriate
24 effluent limit put in a variance petition for
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1 suspended solids.
2 Do you have experience on which to form an
3 opinion as to what the size range of total suspended
4 solids that would be overflowing out of Ackerman
5 Island, for example?
6 A. Typically, this material that could be
7 represented -- I mean, if you're asking me to
8 quantify what the size would be, I would say that it
9 is seven to 14 -- it's as small as a typical clay
10 particle size would be. To define that, I would say
11 the human hair is about 75 micron in diameter. This
12 would be roughly 200,000 -- I don't have a
13 calculator. It's comparable to that of human hair.
14 Q. Would you expect solid material of that
15 size to settle out before the before mixing would
16 occur?
17 A. I don't understand the question.
18 Q. Would you expect that material if it
19 were discharged to settle out in the immediate
20 vicinity of its discharge point?
21 A. Not in a nonflocculated condition. I
22 would expect it to be very well suspended. There
23 are naturally occurring material that is very fine.
24 It also has a very high specific gravity. It would
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1 tend to settle out, but nothing that we've seen from
2 the sample submitted by Fox that are similar to the
3 material that we see in Fox which suggest a quick
4 settling rate.
5 It should be carried by any kind of
6 current.
7 MS. EDVENSON: Okay. Excuse me. Counsel, do we
8 have Mr. Hodges' vitae or resume in evidence?
9 MR. HARSCH: No.
10 THE WITNESS: I'd be glad to fill you in
11 verbally if you'd like.
12 MS. EDVENSON: Do you have one that you can
13 provide to us?
14 THE WITNESS: Sure. I don't have it with me.
15 MS. EDVENSON: That's all right. We can get it
16 later. I would appreciate it. I would like to have
17 that entered into evidence because Mr. Hodges is
18 being asked technical questions and he is being
19 asked to express an opinion, which is related to a
20 technical aspect.
21 So if we could have that come in, I will
22 call that Petitioner's Exhibit No. 20, and is there
23 any objection to the introduction of that into
24 evidence?
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1 MS. HOWARD: No.
2 MS. EDVENSON: All right. Thank you very much.
3 BY MR. HARSCH:
4 Q. Along those lines, how long -- we'd be
5 happy to provide that.
6 How long have you been working in this
7 industry?
8 A. About 25 years.
9 Q. And you mentioned that this was a
10 breakthrough. When did this breakthrough occur?
11 A. Well, the technology was successfully
12 demonstrated on a pilot basis about three years
13 ago. The patent was issued this past year.
14 Q. Okay.
15 A. This is one of several patents that
16 either I hold or I'm waiting on or I'm trying to get
17 confirmed on the liquid side.
18 Q. You are the patent holder here?
19 A. Yes. I'm one of -- actually, there are
20 two other compatriots that hold this patent.
21 Q. And Karen's description of the status
22 of the business negotiations is correct; you hope to
23 demonstrate this technology and then be in a
24 position to negotiate the sale of this technology to
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1 the agency?
2 A. That's correct.
3 MS. EDVENSON: Counsel, in the interest of time,
4 I'm going to have to ask you to close up.
5 MR. HARSCH: I'm just about done.
6 BY MR. HARSCH:
7 Q. With the flocculent added, the particle
8 size that you've described, you would expect that
9 material to settle out in the immediate vicinity of
10 your district?
11 A. That's correct.
12 MR. HARSCH: No further questions.
13 MS. EDVENSON: Will there being any
14 cross-examination?
15 MS. HOWARD: Yes, very brief.
16 MS. EDVENSON: Proceed.
17 CROSS-EXAMINATION
18 by Ms. Howard
19 Q. You've mentioned that you used this
20 technology in the Humboldt Park Project in
21 Illinois.
22 Could you tell me what your solids limits
23 were for that project?
24 A. We didn't have a restriction on the
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1 discharge levels on that project.
2 Q. And why weren't there any restrictions?
3 A. The client didn't require us to have
4 discharge levels on it.
5 Q. Did the client -- well, who's the
6 client?
7 A. Chicago Fire Department.
8 Q. Are you aware of whether the park
9 received the proper permits for that project?
10 A. They represented to us that they've
11 gone through numerous agencies to require the proper
12 permitting for the job that they've handled. We
13 made it incumbent upon them to make sure that the
14 permits were taken care of.
15 Q. But the Illinois EPA never imposed any
16 solids limits on that project that you're aware of?
17 A. I don't know. I'm not aware of it.
18 Since we've been out there, we've had probably in
19 the neighborhood of seven or eight different
20 agencies that have been out there to do testing.
21 MS. EDVENSON: Mr. Hodges, you need only to
22 answer the question to the best of your ability and
23 as specifically as indicated.
24 THE WITNESS: I'm just trying to be as clear as
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1 I could.
2 MS. EDVENSON: I know.
3 BY MS. HOWARD:
4 Q. Did you take any samples at Humboldt
5 Park in terms of the discharge and maybe measure
6 what the solids -- the amount of solids being
7 discharged?
8 A. No.
9 Q. Did you take any samples at any of the
10 other states' locations that you've mentioned that
11 you've done these other projects?
12 A. Yes.
13 Q. Could you give us some idea of what the
14 results were?
15 What kind of solids you were discharging?
16 A. Generally, the ceiling was about one
17 percent or roughly 10,000 parts per million on those
18 jobs that where flocculation was loose, not very
19 robust.
20 On jobs where we didn't have robust
21 flocculation, it was below 5,000 parts per million.
22 That's off the corps unit. That's without a
23 secondary step that acts as a polishing unit which
24 suggests dissolved air flotation possibly or
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1 settling time.
2 Q. Could you give us some idea of what
3 types of management practices would be employed at
4 this site?
5 A. From our perspective, management
6 practices occur very early on. In the testing
7 stage, we develop a system that establishes a setup
8 spot, a return line, everything.
9 From an aerial photograph, we can
10 determine -- work with a client to determine what
11 the management of the entire project is going to be
12 like, where there are sensitive issues, how the
13 project is going to occur, it establishes volumes.
14 A lot of clients know something about their
15 waterway, but they frequently don't even know the
16 area size of that waterway. So our GSI package does
17 a lot to help that out. If there's good
18 communication, the job goes on responding to the
19 client's needs, essentially your market rhythm.
20 MS. EDVENSON: My feeling here at this point in
21 time is that it would be nice if the agency's
22 technical person could be able to ask some questions
23 of the witness that we have here of a technical
24 nature just in conversation, but I'm not sure if
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1 there's a way that we can do that.
2 MS. HOWARD: I think we're okay. I just wanted
3 to make sure I had covered the general information
4 that he would need. We're fine.
5 That's all the questions I have.
6 MS. EDVENSON: All right.
7 REDIRECT EXAMINATION
8 by Mr. Harsch
9 Q. You briefly alluded to a potential for
10 secondary or polishing steps such as dissolved air
11 flotation.
12 Has this technology ever been utilized with
13 such a polishing?
14 A. No, except in the lab.
15 MR. HARSCH: No further questions.
16 MS. EDVENSON: Okay. Any recross?
17 MS. HOWARD: No.
18 MS. EDVENSON: Okay. All right. Thank you very
19 much, Mr. Hodges.
20 At this point in time, let's go directly to
21 respondent's case in chief.
22 MS. HOWARD: That's fine.
23 MS. EDVENSON: And will the respondent please
24 call their first witness?
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1 MS. HOWARD: I would call Bruce Yurdin to the
2 stand.
3 MS. EDVENSON: Will you swear him?
4 (Witness sworn.)
5 WHEREUPON:
6 BRUCE YURDIN,
7 called as a witness herein, having been first duly
8 sworn, testified and saith as follows:
9 DIRECT EXAMINATION
10 by Ms. Howard
11 Q. Could you please state your full name
12 for the record.
13 A. Bruce Yurdin, Y-u-r-d-i-n.
14 Q. Mr. Yurdin, what is your educational
15 background?
16 A. I have BS in biology from the
17 University of Southern California.
18 Q. And what is your employment history?
19 A. I've been with the agency since 1979,
20 essentially in the same work area.
21 Q. And what is that work area?
22 What position do you hold?
23 A. I'm the manager of the watershed unit
24 in the permit section, Bureau of Water Pollution
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1 Control.
2 Q. And in that position, what are your
3 duties and responsibilities?
4 A. They're a little varied, but in the
5 interest of time, I can say that over the course of
6 my employment, I've been dealing with permits for
7 dredging fuel activities.
8 As I said, there are a number of other
9 duties that I'm responsible for, but that's one of
10 the principal activities.
11 Q. And so for the entire time you've been
12 at the agency, you've been involved with dredging
13 projects?
14 A. That's correct.
15 Q. Are NPDS permits necessary for dredging
16 projects?
17 A. No.
18 Q. And why is that?
19 A. The Clean Water Act stipulates that
20 where a Section 402 permit is required, it's a
21 dredging and fuel permit from the Corps of
22 Engineers, and that a Section 402 permit or the NPDS
23 permit is not required. It's an attempt legally to
24 avoid a redundancy in permitting, and, therefore,
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1 only one type of permit is required at one time for
2 a given project or an available discharge.
3 Q. So when we're referring to permits,
4 what type of permits are we actually talking about?
5 A. There are permits that are required,
6 again, from the Corps of Engineers under Section 404
7 of the Clean Water Act, Section 401 water quality
8 certification from our agency.
9 In addition, there is a separate state
10 permit required under Subtitle C for the
11 construction and operation of treatment facilities
12 which may be involved in certain types of dredging
13 activities.
14 Q. Could you briefly describe how the
15 dredging program works in that if someone wants to
16 conduct a dredging program, what are the steps that
17 they would take to apply for the necessary permits
18 from the various agencies and how they work
19 together?
20 A. Generally speaking, there is a working
21 agreement between the various agencies and various
22 regulatory agencies and advisory agencies involved.
23 The process involves an application submitted
24 simultaneously to those regulatory agencies, one of
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1 those being, of course, the Illinois EPA.
2 As I said before, there's a separate state
3 permit required for the construction and operation
4 of the treatment facilities that go along with that
5 dredging operation, and as a part of that whole
6 process and an all-review process, we require
7 testing sediment that may be dredged.
8 Again, it depends on the specifics of the
9 individual case, but generally speaking for
10 hydraulic dredging, it does require some sediment
11 testing.
12 Q. And based on that description, if a
13 dredging project is initiated here in Illinois, in
14 most cases, we're aware of that program because we
15 have to certify it; isn't that correct?
16 A. That's correct.
17 Q. What are the effluent limits for
18 solids?
19 A. Fifteen milligrams per liter.
20 Q. And are there any water quality
21 standards for solids?
22 A. No, total suspended solids.
23 Q. Total suspended solids.
24 How long has total suspended solids
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1 effluent limits been applied to dredging projects in
2 Illinois?
3 A. I can state that during my employment
4 there, since 1979, that's the standard that we've
5 used. I've seen records of older dredging projects
6 that we have on file that precede my employment
7 where that seems fairly used. So it goes back
8 before 1979.
9 Q. So it's unusual to have a 15 milligram
10 group per liter effluent limit in a dredging project
11 permit?
12 A. For a hydraulic dredging operation,
13 no. That's the standard limit.
14 Q. Why are limits for total suspended
15 solids during a dredging project important?
16 A. I think we've heard some testimony on
17 that already by both Karen and Linda discussing
18 various aspects of aquatic toxicity, and I think
19 Linda did a pretty good job of describing what
20 happens when these conditions are at a stream or at
21 a very high level in terms of aquatic fish species
22 problems in regard specifically to problems with
23 gills damage, with fish, aquatic vegetation not
24 being able to be rooted in the sustaining viable
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1 populations in that regard.
2 Does that answer the question?
3 Q. That's close enough. Yeah, I know
4 we're -- I apologize even for leading in some of
5 these. I was trying to get through them.
6 How long have you worked with the Fox
7 Waterway Agency in their dredging program?
8 A. Since their inception.
9 Q. Which has been how many years about?
10 A. (No response.)
11 MS. KABBES: '85, '86.
12 THE WITNESS: Thank you.
13 BY MS. HOWARD:
14 Q. Are you familiar then with the Chain
15 O'Lakes and the problems that the Fox Water Agency
16 faces?
17 A. Yes.
18 Q. In your opinion, is dredging essential
19 to maintaining the Chain O'Lakes Waterway?
20 A. Yes.
21 Q. In your opinion, does dredging have an
22 overall benefit to the environment?
23 A. Overall, yes. It can have short-term
24 detrimental impacts, and, of course, that's one
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1 thing that we're trying to mitigate or offset or at
2 least be aware of at the very minimum.
3 Q. And I want to make sure that I clarify
4 that to be dredging having an overall benefit to the
5 environment on the Chain O'Lakes.
6 A. On the Chain O'Lakes, yes. It's much
7 more straightforward. There, we don't have as many
8 contaminants to be concerned about. So the answer
9 is yes.
10 Q. How familiar are you with the Ackerman
11 Island site?
12 A. I'm familiar with that site.
13 Q. Have you been to that site?
14 A. Yes.
15 Q. How many times?
16 A. Two that I can recall at the moment,
17 possibly more than that. I've been by it on boat.
18 I've probably been on the site probably at least
19 twice.
20 Q. So you're familiar with how the site
21 actually operates?
22 A. Yes. I did issue the permit for it at
23 least one or two occasions. So, yes, I'm familiar
24 with it.
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1 Q. Based on your experience, why do you
2 think that 15 milligrams per liter is difficult to
3 meet at Ackerman Island?
4 A. I think it boils down to size. It's a
5 very limited volume -- it has a very limited volume,
6 and it's very difficult to manage from that
7 standpoint unless you're dredging into it -- unless
8 the inflow is so small as compared to that volume.
9 It's a very, very difficult, very, very small
10 facility to use.
11 Q. Can you tell us about the sand filter
12 cell?
13 A. The original design and construction
14 involved with sand -- sort of a sand berm. I'm not
15 sure I'd call it a sand filter cell. It was more of
16 buried -- let me back up a second.
17 The effluent discharged lines from the --
18 from Ackerman Island to Fox Lake were buried under a
19 sand berm as part of the treatment.
20 MS. EDVENSON: Mr. Yurdin, can you speak up a
21 little bit more? Thank you.
22 BY MS. HOWARD:
23 Q. Is 15 milligrams per liter unachievable
24 at the Ackerman Island site?
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1 A. It's not unachievable. It's very
2 difficult, I think. As stated by the Fox Waterway
3 agency, there are reasons that that is a difficult
4 number to achieve. It is possible to achieve it,
5 but it requires time.
6 Q. Is knowing the location of the confined
7 disposal sites, the geotubes -- are knowing those
8 locations necessary to the agency -- I should say
9 the Illinois EPA?
10 A. In terms of permitting, yes, it is
11 necessary to know that.
12 Q. Why is that?
13 A. Well, for a number of different
14 reasons. It's necessary for each of the regulatory
15 agencies for different reasons.
16 From our standpoint, we need to know where
17 the effluent or where the discharge will occur
18 relative to flow considerations, if there are any
19 intakes or other considerations, other factors that
20 we need to be aware of in terms of that effluent
21 discharge.
22 Those are just some of the things that
23 they'd be concerned about in terms of the permit
24 review, for example, and why one site might be
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1 different than another site.
2 It also differs from the standpoint that
3 different facilities are by their very nature using
4 or accepting different types of dredged material.
5 You're limited in hydraulic dredging to an affixed
6 radius from that -- a particular radius from that
7 disposal site.
8 So the type of material that would be
9 coming in would vary from site to site or may vary
10 from site to site.
11 Q. What about the water quality from site
12 to site?
13 A. That may vary also.
14 You're talking about the water quality in
15 the receiving stream too, correct?
16 Q. Correct.
17 A. That would vary from site to site.
18 Q. And are these variabilities from site
19 to site, whether it's in the water quality, in the
20 receiving stream, and the types of dredge material
21 being put into the system, that information can also
22 then affect the effluent limit -- could it affect
23 the effluent limit that we would recommend for total
24 suspended solids?
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1 A. Total suspended solids would remain at
2 15. What would change would be some other
3 considerations or possibly conditions of the permit
4 itself, but 15 would probably be unaffected by then.
5 Q. Correct, based on the fact that is the
6 regulation.
7 But in terms of a variance proceeding in
8 which we want to recommend that the board do grant a
9 variance from the 15 milligrams per liter, all that
10 information and the variable information that we
11 need for each location, is that the type of
12 information that helps us determine what alternative
13 limit we would recommend for the total suspended
14 solids?
15 A. Yes.
16 Q. Have you read the Fox Waterway Agency's
17 petition and their response to the recommendation?
18 A. Yes.
19 Q. Attachment two to the petitioner was
20 the Army Corps of Engineers report, the recreational
21 boating impact study.
22 Are you familiar with that study?
23 A. Yes.
24 Q. Can you recall what the purpose of the
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1 study was?
2 A. The purpose was to, among other things,
3 measure the effect that recreational boating traffic
4 had on water quality and what steps could be taken
5 by the Corps or by others to reduce that impact.
6 Q. Did it have anything to do with
7 assessing the impact of dredging or total suspended
8 solids from dredging on the Chain O'Lakes?
9 A. No.
10 Q. Do you know where the samples that are
11 mentioned in the study -- where they were taken, the
12 location?
13 A. I believe they were taken from various
14 bridge locations that were easily accessible by the
15 Corps' staff.
16 Q. And what's significant about these
17 bridge locations?
18 A. These locations, as I said, would be
19 readily accessible. They're near shore. They would
20 be in places that boats or where recreational
21 traffic would frequent from time to time.
22 Again, the intent of the study was to
23 measure the effect that those -- that that traffic
24 was having on water quality and turbidity. So the
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1 locations were important from the standpoint that
2 the Corps set about in choosing those locations with
3 the ideal being a heavily-used navigation passage
4 rather than, say, somewhere out in the middle of the
5 lake that they just choose at random.
6 Q. In your opinion, is that study a study
7 in which you find reliable to determine what limits
8 should be for total suspended solids in a dredging
9 project?
10 A. No.
11 Q. What type of data does the Illinois EPA
12 have available to help determine reasonable solid
13 limits for dredging projects?
14 A. The agency has a monitoring network set
15 up around the state, and in this case, we have
16 several locations on the Fox chain in which over
17 time we have accumulated a great deal of data on
18 total suspended solids, among other factors, and
19 that data, I believe, has been submitted for the
20 record.
21 Q. I believe that is attached to the
22 agency's recommendation, which has been entered as
23 an exhibit in this hearing for clarification.
24 MS. EDVENSON: Thank you.
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1 BY MS. HOWARD:
2 Q. Did you read the -- what we refer to as
3 the NIPC study, attachment five, of the petition?
4 A. Yes.
5 Q. Did you review -- I'll call your
6 attention to Page 23 of that study.
7 Did you review the retention times for
8 solids?
9 A. I've read that, yes.
10 Q. On Page 23, how many days, according to
11 that chart, does it take for total suspended solids
12 to decrease from 100 milligrams per liter to 15
13 milligrams per liter?
14 A. These are representative samples taken
15 from four different projects. So the maximum would
16 be ten days. The minimum is two and a half days.
17 Q. And how many days does it take,
18 according to that chart, for total suspended solids
19 to decrease from 100 milligrams down to 50
20 milligrams per liter?
21 A. It's approximately two days.
22 Q. Based on this information and in your
23 experience, how many days do you believe it would
24 take for total suspended solids to settle from 100
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1 milligrams per literature to 80 milligrams per
2 liter?
3 A. Based on this data, we don't know
4 because they didn't measure that particular
5 variable.
6 It would take to go from 100, you said, to
7 80 milligrams per liter something like approximately
8 48 hours or less than 48 hours. It would be less
9 than probably 48 hours in these four cases.
10 Q. Are you familiar with the Humboldt Park
11 dredging project that they testified to?
12 A. Just what the testimony has revealed so
13 far.
14 Q. When did you first learn of the
15 Humboldt Park dredging project?
16 A. I believe it was in a conference call
17 we had a week or ten days ago. I don't recall the
18 date. I can look it up.
19 Q. It was a conference call with?
20 A. A conference call between Mr. Harsh and
21 our agency. It also involved Mr. Hodges.
22 Q. Are you aware of any entity that has
23 applied for certification from the IEPA on that
24 Humboldt Park dredging project?
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1 A. No.
2 Q. And is it possible that somebody might
3 have applied for certification, and you might have
4 missed that application?
5 A. Not likely.
6 Q. And if one would have applied for
7 certification for that dredging project, would the
8 Illinois EPA have given total suspended solid
9 effluent limits for that project?
10 A. Yes.
11 MS. HOWARD: That's all the questions I have.
12 MS. EDVENSON: Thank you.
13 MS. HOWARD: Mr. Harsch, will you have any
14 cross-examination?
15 MR. HARSCH: Yes, I have.
16 CROSS-EXAMINATION
17 by Mr. Harsch
18 Q. Is the Humboldt Park Lagoon connected
19 to any other waterway?
20 A. I've never been there. I couldn't tell
21 you.
22 Q. The Army Corps of Engineers data that
23 was collected on bridge sample locations, at least
24 that's how you characterized it, that, nevertheless,
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1 is data that shows total suspended solid levels at
2 that location in the waterway, does it not?
3 A. Correct.
4 Q. The data that's attached to your
5 variance petition shows water quality data at your
6 monitoring networks as high as 130 milligrams per
7 liter; is that correct?
8 A. Correct.
9 Q. Also values as high as 85 milligrams
10 per liter?
11 A. I'd have to look at it again, but I'll
12 trust your reading of it.
13 Q. Well, both values are in excess of, at
14 least the numerical limitations, 80, 70, and 58 that
15 the agency is recommending?
16 A. Those were one-time samplings, of
17 course. If you're looking at long-term damage --
18 Q. I understand. One-time samples?
19 A. One-time samples, yes.
20 Q. How do you take a water quality sample
21 adjacent to a discharge point without muddying the
22 water, so to speak, and getting an artificial
23 number?
24 MS. HOWARD: I would object to the question. I
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1 think that's beyond the scope of direct. I don't
2 think we had any testimony in the record that
3 Mr. Yurdin is anybody who would go out to actually
4 take water quality samples.
5 MR. HARSCH: He testified that their data is the
6 best data to use.
7 MS. HOWARD: I don't believe he testified as to
8 whether our data is the best data. We're saying
9 this is the data that we have available, and this is
10 what we presented to the board.
11 MS. EDVENSON: The objection is sustained.
12 Proceed.
13 BY MR. HARSCH:
14 Q. Why do you base your statement that the
15 Corps of Engineers study was done just in bridge
16 sites?
17 A. That's my recollection of the sampling
18 protocol that they used.
19 MS. EDVENSON: Off the record.
20 (Discussion had off
21 the record.)
22 MS. EDVENSON: Back on the record.
23 BY MR. HARSCH:
24 Q. Has anybody ever requested as part of a
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1 permit application credit for background?
2 A. Yes, I believe we have.
3 Q. Have you granted that?
4 A. No.
5 Q. Why?
6 A. To my knowledge, it's not allowed under
7 Subtitle C.
8 Q. Have you ever asked for guidance from
9 the legal department on that point?
10 A. I don't recall.
11 Q. Were you involved in the proceeding by
12 the Army Corps of Engineers for a variance --
13 MS. HOWARD: Objection. It goes beyond the
14 scope of the direct.
15 MS. EDVENSON: Sustained.
16 MR. HARSCH: It does not, if you give me a
17 chance to respond to it, Madam Hearing Officer.
18 The witness has testified he's been at the
19 agency since 1979. He's been involved in all of
20 dredging proceedings, and there's one -- and he's
21 been involved in establishing permitting all of the
22 facilities. There is --
23 MS. EDVENSON: And what is your offer of proof?
24 MR. HARSCH: Let me rephrase the question and
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189
1 see if I get a continued objection.
2 BY MR. HARSCH:
3 Q. Does the -- have you been involved with
4 permitting the Army Corps of Engineers dredging
5 operations in the Illinois River?
6 A. Yes.
7 Q. Are you aware that the Army Corps of
8 Engineers obtained -- sought relief from the 15
9 milligrams per liter standard and their effluent
10 limitations for dredged material from the Pollution
11 Control Board?
12 A. They sought relief from a number of
13 limitations from the Illinois Pollution Control
14 Board, yes.
15 Q. Have you read that board opinion in
16 PCB 83-25 entered on July 26, 1993?
17 A. Yes.
18 Q. Are you familiar with it?
19 A. It was -- which one was that again,
20 1985?
21 Q. 1983, July 26, '83. PCB 83-25.
22 A. In 1983, I would have, yes.
23 Q. Are you aware that that opinion makes a
24 statement that, quote, the board has not adopted
L.A. REPORTING (312) 419-9292
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1 effluent limitations that apply to the discharge of
2 dredged materials on Page 5 of that opinion?
3 A. Yes.
4 MS. EDVENSON: I'm going to ask that the counsel
5 limit the cross-examination to the testimony that
6 was provided.
7 MR. HARSCH: Madam Hearing Officer, that
8 testimony is directly -- that question is
9 directly related to the appropriateness of a 15
10 milligram per liter effluent limitation that he said
11 he's imposed since 1979.
12 MS. HOWARD: Where was that? I'm sorry.
13 MR. HARSCH: Page 5 of the opinion.
14 MS. EDVENSON: I would be happy to see that
15 explored in your brief.
16 MR. HARSCH: I have no further questions of this
17 witness.
18 MS. EDVENSON: Thank you.
19 Will there be any redirect?
20 MS. HOWARD: Yeah, I'm sorry. I'm having
21 trouble finding -- which paragraph was that?
22 MR. HARSCH: It's page -- I've got it referenced
23 in the variance petition to Page 5.
24 MS. HOWARD: July 26th?
L.A. REPORTING (312) 419-9292
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1 MR. HARSCH: Yeah.
2 REDIRECT EXAMINATION
3 by Ms. Howard
4 Q. Isn't it true that the Pollution
5 Control Board's opinion that was referenced in
6 cross-examination it states that the board has not
7 adopted effluent limits that apply to the discharge
8 of dredged material, but it continues to say,
9 however, such discharges are subject to
10 Section 304.105, violation of water quality
11 standards?
12 A. Yes.
13 Q. In that Army Corps project, what was
14 the water body that they were requesting a variance
15 for? Where were they going to do their dredging
16 project?
17 A. There were a number of different
18 locations, but it was primarily within two pools of
19 the Illinois River.
20 Q. It was in the Illinois River?
21 A. Illinois River only, yes.
22 Q. And is there anything significant about
23 the characteristics of the Illinois River as
24 compared to the characteristics of, say, some of the
L.A. REPORTING (312) 419-9292
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1 lakes that we're talking about in the Chain O'Lakes
2 with respect to limits per total suspended solids?
3 A. The limit would be the same in
4 application. The primary difference though between
5 the two water bodies in terms of dredging would be
6 the time of material that you're dredging within the
7 case.
8 Q. And that type of information has to be
9 taken into consideration when determining proper
10 total suspended solids limits if you wanted to give
11 a variance beyond the 15 milligrams per liter,
12 correct?
13 A. Absolutely.
14 MS. HOWARD: That's all the questions I have.
15 MS. EDVENSON: Any recross?
16 RECROSS-EXAMINATION
17 by Mr. Harsch
18 Q. Is there a water quality standard for
19 total suspended solids?
20 A. No.
21 MS. HOWARD: That was asked and answered, I
22 believe.
23 MS. EDVENSON: Okay. And you didn't need to
24 answer it again. Thank you very much, Mr. Yurdin.
L.A. REPORTING (312) 419-9292
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1 At this point in time, we'll proceed with
2 the respondent's next witness.
3 MS. HOWARD: Okay. I would call Mr. Robert
4 Mosher.
5 MS. EDVENSON: Mr. Mosher, would you please be
6 sworn?
7 (Witness sworn.)
8 WHEREUPON:
9 ROBERT G. MOSHER,
10 called as a witness herein, having been first duly
11 sworn, testified and saith as follows:
12 DIRECT EXAMINATION
13 by Ms. Howard
14 Q. Could you please state your full for
15 the record?
16 A. Robert G. Mosher.
17 Q. And could you give us a summary of your
18 educational background?
19 A. I have a master's degree in zoology
20 from Eastern Illinois University.
21 Q. And where are you employed?
22 A. Illinois EPA.
23 Q. And what is your position there?
24 A. I'm the supervisor of the standards and
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1 monitoring support unit in the planning section
2 division of --
3 Q. And how long -- I'm sorry. Go ahead.
4 A. Division of water pollution control.
5 Q. And how long have you been in that
6 position?
7 A. More or less ever since my starting
8 date with the agency, which was in late '85.
9 Q. And what are your general duties and
10 responsibilities in that position?
11 A. I review information concerning the
12 adoption of new water quality standards and ways in
13 which the agency should administer water quality
14 standards.
15 Q. And how are you involved through those
16 responsibilities and duties in dredging operations
17 in the state?
18 A. Occasionally, water quality standards
19 issues have arisen for different dredging projects,
20 and I've become involved from that aspect.
21 Q. In this particular case, is that how
22 you became involved?
23 A. This case was a little different
24 because we started a dialog with the FWA and others
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1 of how to kind of -- getting to the root of the
2 limits put on the dredging operations, and somewhat
3 of my involvement has been from a very basic, what
4 should we do with these rules and regulations type
5 thing rather than a more specific type involvement
6 as I had been in the past.
7 Q. We have heard testimony about why it's
8 important to limit total suspended solids discharges
9 in the Fox Chain O'Lakes.
10 Do you have anything to add to the
11 testimony that, I believe, has already been
12 presented by the FWA or Mr. Yurdin?
13 A. Well, from my vantage point, standards
14 are usually in place to protect aquatic life and
15 protect the quality of aquatic ecosystems, and my
16 involvement isn't from an economic or a technology
17 basis. It's from that ecological basis.
18 Q. Do you believe that there is, in your
19 opinion, adequate information about the actual
20 economic -- environmental impact from your
21 perspective in the record at this time?
22 A. Well --
23 MS. EDVENSON: I'd like to ask that you answer
24 that with some specificity as to the various aspects
L.A. REPORTING (312) 419-9292
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1 of the variances petition.
2 BY THE WITNESS:
3 A. Okay. We have quite a bit of data that
4 the agency has collected in the area where these
5 limits would apply. However, that data is collected
6 during weekdays by agency employees, and it does not
7 represent peak usage times for the Chain O'Lakes in
8 the Fox River.
9 So on one hand, we've got quite a bit of
10 data. On the other hand, I don't believe we have
11 much data that may show specifically what's
12 occurring, lots of boat traffic, et cetera. So I
13 would like to see more data for specific times on
14 the lakes.
15 BY MS. HOWARD:
16 Q. Did you read the petition and the
17 response to the IEPA's recommendation?
18 A. Yes.
19 Q. And are the limits we're recommending
20 effluent rather than water quality?
21 A. We're recommending effluent limits.
22 Q. Would the Illinois EPA settle, for the
23 lake in general and the Chain O'Lakes, to just meet
24 in general on an 80 milligrams per liter water
L.A. REPORTING (312) 419-9292
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1 quality standard?
2 A. No. I would not want to see that as a
3 limit applying to the lakes themselves, no.
4 Q. Why do you agree that we should
5 recommend the 100 milligrams per liter for Grass
6 Lake?
7 A. I am assuming you mean for the terms of
8 this variance -- a temporary limit. I don't believe
9 we have enough data to establish a permanent limit
10 at this time.
11 So on a temporary basis, we had some
12 discussions about using ambient lake total suspended
13 solids as a guide to setting effluent limits for
14 dredging, and Grass Lake, there is some data at
15 least to indicate that 100 milligrams per liter is
16 encountered in Grass Lake under ambient conditions,
17 in other words, just out there on the lake under
18 normal circumstances, not dredging.
19 So 100 as an effluent limit as a monthly
20 average would be in the realm of what's already out
21 there at least at times.
22 Q. The 100 milligrams per liter applies to
23 both the geotubes project and the confined disposal
24 site which is identified as L10?
L.A. REPORTING (312) 419-9292
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1 A. Yes.
2 Q. There has been a request for
3 100 milligrams per liter for Nippersink Lake.
4 Can you tell me what we would -- what limit
5 we would recommend for Nippersink and what you'd
6 base that on?
7 A. Yes. I'd like to refer to a table of
8 data here to make sure I give you the right answer.
9 (Witness perusing
10 documents.)
11 BY THE WITNESS:
12 A. We're recommending 70 milligrams per
13 liter, and, again, that's based on data that was
14 reported on Page 43 of, I believe, attachment two of
15 the petition.
16 BY MS. HOWARD:
17 Q. And could you tell me what is the
18 difference between Nippersink and Grass Lakes? Why
19 would you limit Nippersink, but yet go along with
20 100 milligrams per liter for Grass Lake?
21 A. The ambient conditions in Nippersink
22 are -- have lower total suspended solids. It
23 doesn't get as high as Grass Lake; therefore, if we
24 want to use the ambient lake conditions as a guide,
L.A. REPORTING (312) 419-9292
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1 which I feel is a valid way of establishing these
2 temporary limits, 70 for Nippersink is
3 representative roughly of a 90th percentile value,
4 and I feel under the conditions of limited data that
5 we have before us that that's a good way to come up
6 with a number.
7 Q. Okay. Are you following -- we're in
8 the middle of that chart on Table 7 on Page 43.
9 It's the middle section that's total suspended
10 solids and the range?
11 A. Yeah, that's the data I'm referring to.
12 Q. With respect to Pistakee Lake, could
13 you tell us what limit we're recommending?
14 A. Yes. We're recommending 80 milligrams
15 per liter, and, again, because roughly a 90th
16 percentile of this data collected during periods of
17 high boat traffic activity has been demonstrated.
18 Q. Did you also use any data collected by
19 the agency for this?
20 A. I looked at agency data for the Chain
21 O'Lakes, and noted that, again, when our samplers go
22 out during the week when there's less boat traffic,
23 the total suspended solids values are much lower,
24 which would be expected.
L.A. REPORTING (312) 419-9292
200
1 So that's what the agency data is telling
2 me that it's usually much lower than the values or
3 at least the upper end of the range given on Page 43
4 as attachment two.
5 Q. Just for reference, are you
6 referring -- when you talk about the agency data
7 that's been submitted, is that attachment B to the
8 agency recommendation which has been submitted and
9 labeled as Petitioner's Exhibit No. 2?
10 A. Yes.
11 Q. And what about Fox Lake? What limits
12 are we recommending and why?
13 A. We're recommending 80 milligrams per
14 liter also. There was no data collected by the
15 Corps of Engineers under high boat traffic
16 condition, but a comparison of Fox Lake data
17 collected by the agency to Pistakee Lake data
18 indicated that there is very similar conditions in
19 those two lakes. So we went with 80 as we did with
20 Pistakee Lake.
21 Q. And you're basing that also on that
22 attachment B to the agency's recommendation?
23 A. Yes.
24 Q. With respect to the Fox River -- could
L.A. REPORTING (312) 419-9292
201
1 I go off the record for just a second?
2 MS. EDVENSON: Off the record.
3 (Discussion had off
4 the record.)
5 MS. EDVENSON: Back on the record.
6 BY MS. HOWARD:
7 Q. With respect to Fox River, can you tell
8 us what recommendation -- what limit we're
9 recommending for that?
10 A. Fifty-eight milligrams per liter.
11 Q. And how did we determine that?
12 A. That was 90th percentile of the data
13 from October 1988 through 1996 that the agency has
14 collected as part of its ambient water quality
15 network monitoring program.
16 This is data that is collected at stations
17 throughout the state, mostly rivers, roughly nine
18 times per year.
19 Q. Okay. Do any of our recommendations
20 change whether we're talking about geotubes or
21 confined disposal areas?
22 A. No.
23 Q. And do you believe that there should be
24 limits established for the limited testing of the
L.A. REPORTING (312) 419-9292
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1 dewatering -- the mechanical dewatering system
2 that's been described today?
3 A. Well, as I understand it, there's an
4 experimental stage that must be conducted, and I
5 didn't have a limit prepared for that experiment
6 with the understanding that it was to be run under a
7 confined type of a system.
8 Q. Okay. By that's not to say that a
9 mechanical dewatering system should not be given
10 possibly in the future depending on what the data
11 shows during the test period; is that right?
12 A. Depending on the usage and what the
13 testing shows, it may very well have limits in the
14 future, yes.
15 Q. If you had only referred to
16 Illinois EPA data for recommending these limits
17 without using any of the data supplied on the chart
18 on Page 43, would our recommendations be for more
19 stringent total suspended solids limits?
20 A. Well, the Fox River station that I
21 mentioned last, the recommendation wouldn't be any
22 different because that was only based on our agency
23 data. But for the lake stations where our agency
24 data shows a much lower total suspended solids
L.A. REPORTING (312) 419-9292
203
1 average and range, then using only that data, if I
2 were to recommend discharge limits based on ambient
3 conditions, yes, they would be much lower for the
4 lakes.
5 Q. Are you familiar with the Maryland
6 turbidity study?
7 A. Yes.
8 Q. Did you read that study?
9 A. Yes.
10 MS. EDVENSON: Off the record for just a
11 moment.
12 (Discussion had off
13 the record.)
14 MS. EDVENSON: Back on the record.
15 BY MS. HOWARD:
16 Q. Have you done any further research
17 beyond reading the Maryland turbidity study?
18 A. Yes, I did. I wondered where they
19 intended to apply the limits they talked about in
20 that study, and it really didn't specifically say
21 that I could see in the paper itself. So I called
22 the state of Maryland. I talked to Andrew Dur who's
23 one of the authors of the paper and asked him that,
24 and he said this applies only to estuaries in the
L.A. REPORTING (312) 419-9292
204
1 state, saltwater, freshwater intermingling type
2 environments, and specifically he said that it did
3 not apply to freshwater lakes, and he was quite
4 emphatic that that high of a limit would not be a
5 very good limit for freshwater systems.
6 Q. Based on your reading of that including
7 the recommendations on Page 11 of the Maryland
8 turbidity study, in your opinion, is Maryland
9 reassessing its use of mixing zones per dredging
10 projects?
11 A. Yes.
12 MS. HOWARD: That's all the questions I have.
13 MS. EDVENSON: Thank you.
14 Cross-examination?
15 CROSS-EXAMINATION
16 by Mr. Harsch
17 Q. Mr. Mosher, the reason to use Table 7,
18 I think you said, was that the agency's data was
19 collected during the week and was not necessarily
20 indicative of the high boat traffic time period; is
21 that correct?
22 A. That was one of the reasons for using
23 it, yes.
24 Q. And wouldn't the high boat traffic
L.A. REPORTING (312) 419-9292
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1 rationale also apply to the Fox River?
2 A. That, I'm not sure of. I don't know
3 how shallow the depths are, and usually rivers would
4 not accumulate the type of sediments that lakes
5 would and so on, so I --
6 Q. What's your sampling location?
7 A. The sampling location is at Burton's
8 Bridge. It's near Island Lake.
9 Q. The 90th percentile means ten percent
10 values are higher?
11 A. Yes.
12 Q. Do you have an opinion as to whether or
13 not the use of credit for background is appropriate?
14 A. I have no opinion. I have no
15 experience with that portion of the regulations.
16 Q. There are provisions and the board
17 rules which allow under certain circumstances the
18 use of background materials?
19 A. But the permits section in our agency
20 deals with background credits, not the planning
21 section.
22 Q. You've heard the direct testimony of
23 Linda Huff and Mr. Hodges that you would expect that
24 the solids discharged from the tube sites once
L.A. REPORTING (312) 419-9292
206
1 they're constructed in the confined dredged disposal
2 areas would assimilate or mix quickly and,
3 therefore, the concentrations would drop off.
4 Do you agree or disagree with that
5 testimony?
6 A. Well, in my opinion, the testimony was
7 a little bit light on what quickly means or what a
8 short small distance is. It didn't provide me with
9 really a way to visualize this area of mixing.
10 MS. EDVENSON: Counsel, was responsive to your
11 question?
12 MR. HARSCH: Um-hum.
13 BY MR. HARSCH:
14 Q. And you understand that part of the
15 dilemma here is that we are talking about a variance
16 while we go out and develop the necessary data to
17 support a proposed long-term standard?
18 A. Yeah. I tried to make that clear that
19 all my opinions and recommendations are for this
20 variance period because we need more data of several
21 kinds, and the values that we, in the end, find
22 acceptable may be lower than the ones we're
23 proposing -- we're agreeing with today.
24 MR. HARSCH: I have no further
L.A. REPORTING (312) 419-9292
207
1 cross-examination.
2 MS. EDVENSON: Okay. Any redirect?
3 MS. HOWARD: One.
4 REDIRECT EXAMINATION
5 by Ms. Howard
6 Q. At the same time that this is test
7 period for these projects, isn't it true that we
8 still have to -- as the Illinois EPA, we do have a
9 duty to protect the aquatic life in the Chain
10 O'Lakes, correct?
11 A. Yes. That's the whole idea behind
12 gauging these discharge limits to ambient
13 conditions.
14 MS. HOWARD: That's all.
15 MS. EDVENSON: Okay. First before I make my closing
16 remarks, I would like to thank very much counsel for
17 expediting especially this afternoon and also the
18 response of the witnesses who took some of the brunt
19 of that. All right. Thanks very much. And we are
20 going to be able to get out of the building before
21 they lock the door on us. All right.
22 I have identified no issues of witness
23 credibility that is something I need to do and I
24 will identify those issues with respect to witness
L.A. REPORTING (312) 419-9292
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1 credibility.
2 I will issue the hearing report in this
3 case tomorrow during the short time, and I will fax
4 that hearing report to counsel for the parties.
5 That will include a list of all the exhibits and
6 that means that will include a list of exhibits that
7 we will expect to receive.
8 To the greatest extent possible, if
9 petitioner could please share the new exhibits with
10 respondent as soon as possible, I would appreciate
11 it, and that is what we have agreed to here today.
12 By Friday of this week, we at the board
13 will prepare written questions that we would like to
14 be responded to. These are questions that we did
15 not ask here today in the interest of saving time.
16 If those questions were explored here, we would have
17 been asking them of the witnesses. We will now
18 being directing them in writing to counsel for the
19 parties.
20 Therefore, I want to request that counsel
21 not answer these questions. I'm requiring that
22 these questions be referred to the witness for their
23 answers. Under the circumstances, however, I am
24 noting that the answers may come from either or both
L.A. REPORTING (312) 419-9292
209
1 parties. Either party may answer any question and
2 the list will be put out to both parties. Please
3 indicate which witness is responsible for each of
4 the responses that you submit.
5 Due to the time line for the case, also,
6 the record must close on Monday, May 19th. The
7 petition is not requesting an expedited transcript,
8 therefore, the transcript will be received the prior
9 Friday, which is May 16th.
10 Responses to the questions that we propose
11 to the parties we be due along with any written
12 briefs on May 19th. Again, because of the time
13 line, we hardly had time to take turns briefing. I
14 am, therefore, asking that both parties cooperate by
15 providing a written document which includes any
16 further comments and clarifications that they seek
17 to be included in the record without taking turns in
18 a traditional briefing format, and that is a
19 question to the parties now.
20 Do you agree that you will both come in
21 with any written comments and clarifications set by
22 May 19th?
23 MS. HOWARD: I'm not sure I understand what you
24 mean.
L.A. REPORTING (312) 419-9292
210
1 MS. EDVENSON: Well, otherwise, we're in a
2 position where I now get petitioner two days to
3 submit a brief and then I give you two more days to
4 submit your replies --
5 MR. HARSCH: She's talking about simultaneous
6 filing.
7 MS. EDVENSON: -- and then I give him two more
8 days to submit -- respond to, rather --
9 MS. HOWARD: Sure. Okay.
10 MS. EDVENSON: -- and then I give him two more
11 days to submit his response.
12 MS. HOWARD: Right.
13 MS. EDVENSON: Or would we rather just --
14 MR. HARSCH: We have no objections -- we have no
15 objection to simultaneous filing.
16 MS. HOWARD: I have no problem with it as long
17 as we know what we're expecting in terms of any
18 additional exhibits, which I believe we've already
19 have on the record.
20 MS. EDVENSON: Okay.
21 MS. HOWARD: That's fine.
22 MS. EDVENSON: All right. Great.
23 MR. HARSCH: Aunt your hearing officer order
24 will set forth this time frame?
L.A. REPORTING (312) 419-9292
211
1 MS. EDVENSON: Yes. And we are still operating
2 under the case schedule then which has already been
3 issued.
4 This concludes our hearing for today in the
5 case of PCB 97-151. The transcript will be reviewed
6 by all of the members of the board for petitioners
7 rendered in the case including the briefs and the
8 other materials that have been submitted.
9 Thank you for your attendance and
10 cooperation in our process.
11 MR. HARSCH: Thank you very much. Thank you,
12 agency.
13 (Whereupon, the proceedings were
14 adjourned pursuant to agreement
15 to be reconvened sine die.)
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
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1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF C O O K )
3
4 I, KIM M. HOWELLS, CSR, do hereby state
5 that I am a court reporter doing business in the
6 City of Chicago, County of Cook, and State of
7 Illinois; that I reported by means of machine
8 shorthand the proceedings held in the foregoing
9 cause, and that the foregoing is a true and correct
10 transcript of my shorthand notes so taken as
11 aforesaid.
12
13
14 ______________________________
KIM M. HOWELLS, CSR
15 Notary Public, Cook County, IL.
16
17
SUBSCRIBED AND SWORN TO
18 before me this________day
of___________, A.D., 1997.
19
__________________________
20 Notary Public
21
22
23
24
L.A. REPORTING (312) 419-9292