ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

WATER QUALITY AMENDMENTS TO)

35 Ill. Adm. Code 302.208 )

(e)-(g),302.504(a),

)

302.575(d), 303.444

) R02-11

309.141(h); and PROPOSED ) (Rulemaking-Water)

35 Ill. Adm. Code 301.267, )

301.313, 301.413, 304.120, )

and 309.157

)

The following hearing was held before

HEARING OFFICER MARIE TIPSORD, taken before

Francine Buonavolanto, CSR, a notary public

within and for the County of Cook and State of

Illinois, at 100 West Randolph Drive, Suite

9-040, Chicago, Illinois, on the 29th day of

January 2002, A.D., scheduled to commence at

the hour of 9:30 a.m.

L.A. REPORTING (312) 419-9292

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

ILLINOIS POLLUTION CONTROL BOARD,

100 West Randolph Street

Suite 9-040

Chicago, Illinois 60601

(312) 814-8917

BY: MS. MARIE TIPSORD, HEARING OFFICER

L.A. REPORTING (312) 419-9292

HEARING OFFICER TIPSORD: Good

morning, my name is Marie Tipsord and I've been

appointed by the Board to serve as a hearing

officer in this proceeding entitled, In the

Matter of Water Quality Triennial Review

Amendments 235 Illinois Administrative Code

302.208, 302.504, 302.575, 303.444, 309.141(h)

and proposed 35 Illinois Administrative Code

301.267, 301.313, 301.413, 304.120 and 309.157.

This is Docket No. R02-11.

To my right is Dr. Tanner Girard,

he's the leading Board member assigned to the

matter.

Also present to my far right is Board

member Michael Tristano, who is also assigned

to this rule. Dr. Ronald Flemal will be

joining us soon and he too is a board member

assigned to the rule.

To my immediate left is Anand Rao and

to his left Alisa Liu. They are from our

Technical Unit.

Also in the audience is Cathy Glenn,

she is Ronald Flemal's assistant.

The purpose of today's hearing is to

L.A. REPORTING (312) 419-9292

hear pre-filed testimony of the Illinois

Environmental Protection Agency and to allow

questions to be asked of the Agency.

There are three persons who will be

testifying on behalf of the Agency. As the

pre-filed testimony is not lengthy, we will

have the testimony read into the record.

We will allow all of the Agency

witnesses to testify before questions are

asked. Anyone may ask a question, however, I

do ask that you raise your hand and wait for me

to acknowledge you.

After I have acknowledged you,

please, state your name and who you represent

before you begin your questions.

Please speak one at a time. If you

are speaking over each other, the court

reporter will not be able to get your questions

on the record.

Please note that any questions asked

by a Board member or staff are intended to help

build a complete record for the Board's

decision and not to express any preconceived

notions or bias.

L.A. REPORTING (312) 419-9292

As no other pre-filed testimony was

received, we will allow anyone else who wishes

to testify the opportunity to do so as time

allows.

I have placed a list at the side of

the room for persons who wish to testify today

to sign up. At the back of the room, there are

also sign-up sheets included on the notice and

service list as well as copies of the current

notice and service list.

If you wish to be on the service

list, you will receive all pleadings and

pre-filed testimony in this proceeding.

In addition, you must serve all of

your files of the persons on the service list.

If you wish to be on the notice list, you will

receive all Board orders in the rulemaking.

If you have any questions about which

list you wish to be placed on, please, see me

at a break. Are there any questions about the

procedures we are going to follow-up on today?

I see none at this time I would ask Dr. Girard

if he wishes to say anything.

DR. GIRARD: Yes, I would. Good

L.A. REPORTING (312) 419-9292

morning everyone. I would like to on behalf of

the Board welcome everyone to the hearing this

morning. We particularly welcome members of

the public, who are contributing their time and

energy to this effort to better protect human

health and the environment of Illinois. We

look forward to the Agency's testimony today

and questions from other participants. Thank

you.

HEARING OFFICER TIPSORD: Thank you,

Dr. Girard. At this time, we will proceed

with opening statements and we'll start with

the Agency.

MR. SOFAT: Good morning, I am Sonjay

Sofat and I'm an assistant counsel with the

Illinois Environmental Protection Agency. I

work with the Bureau of Water.

With me today are three agency

witnesses; to my right is Robert Mosher, who is

the manager of the Water Quality Standards

Unit/Section within the Division of Water

Pollution Control at the Illinois Environmental

Protection Agency.

Mr. Mosher will testify regarding the

L.A. REPORTING (312) 419-9292

concepts presented in the Agency's proposal

before the Board.

To my immediate left is Clark Olsen,

who is a toxicologist in the Water Quality

Standards Unit/Section of the Division of Water

Pollution Control.

Mr. Olsen will testify regarding the

process used by the Agency to develop the

proposal.

To Mr. Clark's left is Alan Keller,

who is a supervisor of the Northern Municipal

Unit of the Permit Section of Division of Water

Pollution Control.

Mr. Keller will testify regarding the

BOD/CBOD part of the proposal.

The agency has made last-minute

changes its BOD/CBOD part of the proposal.

Those changes are contained in the Agency's

Errata Sheet marked as Agency Exhibit 1.

I move that the Agency's Exhibit 1 be

admitted into the record if there are no

objections.

HEARING OFFICER TIPSORD: Are there

any objections to the errata sheet being

L.A. REPORTING (312) 419-9292

admitted? Seeing none, I will mark it as

Exhibit 1.

MR. SOFAT: Thank you. The Agency

has brought along some documents that we filed

with the Board. They are available on that

table next to the wall. Also, there is a

sign-up sheet.

In case we run out of the documents

that we brought along, if you'll just sign your

name and address we can send those to you.

We are here today to testify in

support of our proposal that amends Parts 302,

303, and 309 of the Board regulations and

proposes Parts 301, 304 and 309.

A significant portion of this

proposal is a result of the Agency's attempt to

review and refine the numeric water quality

standards based on the best available current

knowledge. This proposal also contains

corrections to certain existing Board

regulations.

We believe this proposal is

consistent with Title VII requirements of the

Illinois Environmental Protection Act. We

L.A. REPORTING (312) 419-9292

think this is a good proposal and one that

deserves to be adopted without substantial

changes.

We would like to thank the

participants who reviewed the Agency draft

proposal and provided their comments.

With that, I think we are ready to

present our proposal. I think we are ready to

swear in the witnesses.

HEARING OFFICER TIPSORD: Before you

do that, is there anyone else who would like to

make an opening statement at this time?

I'm Albert Ettinger, I work for the

Environmental Law & Policy Center. With me is

Cindy Scrubadude(phonetic) who is working with

the Sierra Club on this matter. I also

represent the Sierra Club. I just want to say

we have some questions. We're not going to be

objecting. The fact that I ask a question

about something doesn't mean that I have a

major problem with it, but I'm here to find out

what the effect of the proposal is.

HEARING OFFICER TIPSORD: Thank you,

Mr. Ettinger. Then let's have your witnesses

L.A. REPORTING (312) 419-9292

sworn and we'll proceed.

(Whereupon, the witnesses

were duly sworn.)

MR. SOFAT: I think at this time, I

would like to start with Robert Mosher.

ROBERT MOSHER,

called as a witness herein, having been first

duly sworn, was examined and testified as

follows:

EXAMINATION

BY MR. SOFAT:

Q. Mr. Mosher, I'm going to hand you

this document. Please look over that for a few

minutes while I hand out the copies.

Mr. Mosher, do you recognize this

document that I have handed to you?

A. Yes, I do.

Q. Would you please tell us what this

document is?

A. It's my pre-filed testimony on this

matter.

Q. Is that a true and accurate copy of

your testimony that has been submitted to the

Board?

L.A. REPORTING (312) 419-9292

A. I believe it is.

Q. Could you present your testimony to

the Board today?

A. Okay. My name is Robert Mosher and

I'm the manager of the Water Equality Standards

Section within the Division of Water Pollution

Control at the Illinois Environmental

Protection Agency.

I've been with the Illinois EPA in

excess of 16 years. Almost all that time has

been spent in my current capacity where my

primary responsibility is the development and

implementation of water quality standards.

I have a Master's Degree in Zoology

from Eastern Illinois University where I

specialized in stream ecology.

My testimony will cover three topics.

First, I will discuss the background

information concerning the development of the

instant proposal before the Illinois Pollution

Control Board.

Second, I will provide a brief

discussion on the concepts contained in various

sections of the Illinois EPA's proposal.

L.A. REPORTING (312) 419-9292

Third, I will discuss the Illinois

EPA's plans for successful implementation of

this proposal.

The Federal Water Pollution Control

Act Amendments of 1972, 33 USC Code Sections

1251 through 1387, is commonly known as the

Clean Water Act.

Pursuant to the Clean Water Act

states are required to revise and update their

water quality standards to ensure that they are

protective of public health and welfare,

enhance the quality of water and promote the

purposes of the CWA, 33 U.S.C. 1313(c)(2)(A) is

the reference.

The process of reviewing the state's

standards is called the triennial water quality

standards review. The changes to the water

quality and effluent standards in the instant

proposal are one element of Illinois EPA's

current triennial review of water quality

standards.

In September 2000, the Agency shared

a packet of information concerning this

rulemaking with a number of stakeholders

L.A. REPORTING (312) 419-9292

involved in water quality standards affairs.

These entities included municipal and

industrial dischargers, environmentalists and

other governmental agencies. A few helpful

comments were received and were employed to

clarify the intent of this proposal.

There were no adverse comments, and

generally speaking, the changes to the Board

regulations that encompass this proposal should

not be controversial since they represent the

current state-of-the-art in water quality

standards.

The GLI rulemaking(R97-25) introduced

Illinois stakeholders to several of the

concepts leading to the new and revised

standards for the General Use waters proposed

here.

The instant rulemaking is the result

of careful consideration regarding the

appropriateness of selected aspects of the GLI

for General Use waters of the state.

This proposal is divided into five

parts. Part I proposes adoption of new aquatic

life acute and chronic water quality standards

L.A. REPORTING (312) 419-9292

for benzene, ethylbenzene, toluene, and

xylene(s) (BETX) for both General Use waters

and the Lake Michigan Basin.

Part II contains revised acute and

chronic water quality standards for Zinc,

Nickel, and weak acid dissociable cyanide.

Part III proposes that most General

Use metals water quality standards be specified

in terms of dissolved concentration rather than

the total concentration used in the existing

standards.

Part IV contains corrections to the

GLI regulations at 35 Illinois Administrative

Code 302.504(a), 302.575(d), and 309.141.

Part V proposes to update the Board

regulations at 304.120 to reflect that the

carbonaceous component of BOD5 be regulated in

treated domestic waste effluents.

I will cover the first four Parts of

the Illinois EPA's proposal and Al Keller,

manager of the Agency's Northern Municipal

Permit Unit will testify to Part V of the

proposal.

Part I: We intend for all the newly

L.A. REPORTING (312) 419-9292

derived standards to either replace existing

General Use Standards or to be added as newly

listed substances under 35 Illinois

Administrative Code 302.208(e) and (f).

Each substance addressed has both an

acute and a chronic value proposed. The

regulatory constructs in 302.208(a) through (d)

will apply to newly added or revised standards.

Several new STORET numbers are

necessary because many metals standards are now

proposed to be in the dissolved rather than the

total form.

Standards to protect aquatic life for

BETX substances will also be inserted in the

Lake Michigan Basin water quality standards

where none now exist.

For the Lake Michigan basin these

standards will be based on sensitive species

from both cold and warm water.

Additionally, benzene will have a

General Use human health standard inserted at

302.208(f) identical to the Lake Michigan Basin

human health standards that already exists.

Part II: A goal of the triennial

L.A. REPORTING (312) 419-9292

review of standards that led to this proposed

rulemaking before the Board was to update

General Use water quality standards for toxic

metals found at 35 Illinois Administrative Code

302.208(g).

These metals have quote, one number

unquote, standards adopted in the 1970s as

opposed to quote two number, unquote, acute and

chronic standards that have been the preferred

method of adopting standards for the last 15

years or so.

Nickel and Zinc fall into this

category. Selenium and silver are also

considered to be significantly toxic metals and

still exist as one number standards in

302.208(g).

New standards for selenium and silver

are not proposed at this time because debate is

still ongoing about just how standards for

these metals should be derived.

USEPA is pursuing these issues and

when a consensus is reached at the national

level, Illinois EPA will propose updated

standards for these metals.

L.A. REPORTING (312) 419-9292

National consensus had not been

achieved at the time the Agency filed its

petition with the Illinois Pollution Control

Board.

Part III: The national consensus

indicates that the dissolved form of metals is

the toxic component to aquatic organisms.

It is widely believed that filterable

metals are likely to be complexed with other

water constituents and will have little toxic

influence.

For this reason, GLI water quality

standards for metals were adopted in dissolved

form and the Agency's petition in this matter

lists metals water quality standards as

dissolved metal.

Since most researchers reported total

metals when relating the concentrations that

organisms were exposed to in toxicity tests,

USEPA did some experimentation to determine the

percentage of these reported concentrations

that was actually dissolved metal.

The result of this endeavor was a

table of metals conversion factors. These were

L.A. REPORTING (312) 419-9292

published by USEPA under the GLI.

For example, if the final acute value

for a given metal in the total form is 2.0 mg/L

and the conversion factor is 0.8, as determined

from measuring total vs. dissolved metal under

the conditions of laboratory toxicity tests,

then the dissolved metal final acute value is

1.6 mg/L.

The proposed water quality standards

have been converted to dissolved metal

concentrations through the use of the stated

conversion factor.

The BETX substances have no such

toxicity relationship between dissolved and

suspended components. The total form is

presently considered to be that which should be

regulated. Our proposal designates total BETX

substances as the water quality standards.

Federal regulations at 40 Code of

Federal Regulations 122.45 require that NPDES

permit limits for metals be established as

total measurable metal.

When water quality based effluent

limits are required in a permit, this would

L.A. REPORTING (312) 419-9292

mean converting the dissolved metal water

quality standard value into a total metal

value.

A translator factor is used for this

purpose and in the absence of site-specific

data concerning the ratio of total to dissolve

metal, consists simply of the reciprocal of the

conversion factor. This means that if a mixing

zone is not involved in a Water Quality Based

Effluent Limit, the total metal limit would be

what the water quality standard would have been

in the, quote, total metal, unquote, form.

That is, the differential between

total and dissolved metals in the toxicity

tests would not be factored out.

We have included a site-specific

metals translator provision in the proposed

Illinois Pollution Control Board regulations.

This would allow dischargers to

measure the ratio of dissolved to total metal

in their effluent and thereby apply to the

Agency for establishment of total metal Water

Quality Based Effluent Limits based on this

effluent specific relationship.

L.A. REPORTING (312) 419-9292

Effluents will therefore essentially

be regulated on their potential to discharge

dissolved metals at levels consistent with the

water quality standards yet within the bounds

of the total metals effluent standards at

35 Illinois Administrative Code Part 304.

At this time recalculated standards

are not being proposed for six metals, arsenic,

cadmium, copper, lead, mercury and trivalent

chromium, found at 35 Illinois Administrative

Code 302.208(e).

Lead and mercury standards were

updated in 1996. There had been no indication

that the arsenic copper and trivalent chromium

standard are in need of revision and cadmium is

currently under federal review.

However, it is appropriate to convert

these standards to the dissolved form to

conform to USEPA guidance. This simply

involves the application of the correct

conversion factor.

The other substances in 302.208(e)

are not amenable to regulation in the dissolved

form. TRC(total residual chlorine) is by

L.A. REPORTING (312) 419-9292

nature an inclusive parameter. Hexavalent

chromium standards were adopted as total metal

in the Board's GLI rulemaking. It may be best

to continue to regulate this substance in the

total metal form.

Part IV: Additionally, we propose

several corrections to recently adopted Board

regulations. The GLI rulemaking intended to

list metals standards in the dissolved form.

The conversion factors that

accomplish this were inadvertently left out,

however. We now correct this mistake by

inserting the proper conversion factors into 35

Illinois Administrative Code 302.504(a).

Section 302.575 was missing several

pieces of essential information that we also

now correct. 35 Illinois Administrative Code

303.444 is a site-specific regulation that is

no longer pertinent given the changes to the

General Use cyanide standards and therefore we

propose that the Board delete this regulation.

We are also proposing to replace

language at 35 Illinois Administrative Code

309.141(h)(3) with a more accurate instruction

L.A. REPORTING (312) 419-9292

for implementing the metals translator in NPDES

permits.

The proposed changes to the standards

give rise to several issues regarding the

implementation of water quality standards in

NPDES permits and in other Agency programs.

The Illinois EPA intends to provide

the Board a draft Agency rule for implementing

water quality based effluent limits at hearing

under R02-11.

This rule will later pass through the

Joint Committee for Administrative Rules

approval process before or becoming finalized.

The Agency rule will allow the Board

and stakeholders to envision how the new Board

water quality standards will be implemented in

the day-to-day activities of the Agency.

This concludes my pre-filed

testimony. I will be supplementing this

testimony as needed during the hearing. I

would be happy to address any questions.

CLARK OLSEN,

called as a witness herein, having been first

L.A. REPORTING (312) 419-9292

duly sworn, was examined and testified as

follows:Do you recognize this document?

EXAMINATION

BY MR. SOFAT:

Q. Mr. Clark, I'm going to --

HEARING OFFICER: I think it's

Mr. Olsen. His first name is Clark.

MR. SOFAT: I'm sorry. Mr. Olsen,

I'm going to hand you this document. Would you

please look at it for a few moments.

Mr. Olsen, do you recognize this document?

A. Yes, I do.

Q. Would you please tell us what this

document is?

A. This is my pre-filed testimony with

respect to the matter at hand.

Q. Is this a true and accurate copy of

your testimony that was pre-filed with the

Board?

A. Yes, it is.

Q. Would you please present your

testimony today?

A. My name is Clark Olsen and I've been

employed by the Illinois Environmental

L.A. REPORTING (312) 419-9292

Protection Agency for over 20 years.

I work in the Water Quality Standards

Unit of the Division of Water Pollution Control

as a toxicologist.

I have been involved with water

quality standards issues throughout my career

with the Agency and have participated in

several previous rulemakings of this type.

I have a PhD in Biology from the

University of Miami, Florida and have done

postdoctoral research in toxicology at North

Carolina State University.

My testimony will discuss the

development process of the instant proposal

before the Illinois Pollution Control Board.

THE DEVELOPMENT PROCESS

Early in the year 2000, I began to

gather toxicity data for the instant proposal.

I developed numeric values suitable for water

quality standards for several substances using

USEPA sanctioned methods.

New aquatic life acute and chronic

standards were derived for benzene,

ethylbenzene, toluene and xylenes. These are

L.A. REPORTING (312) 419-9292

called the BETX substances, BETX. For both

General Use and Lake Michigan Basin waters and

human health standards were developed for

General Use Waters.

New General Use aquatic life acute

and chronic standards were derived for Zinc,

Nickel and weak acid dissociable cyanide.

There are presently single number

standards for Zinc and Nickel for General Use

waters and current practice recommends acute

and chronic numbers.

In general, I followed the procedure

laid down by USEPA in the Guidelines for

Deriving Numerical National Water Quality

Criteria for the Protection of Aquatic

Organisms and Their Uses, parenthesis (the

Guidelines) end of parenthesis, 1985

parenthesis again(NTIS PB85-227049) end of

parenthesis, which have been followed in

standards' development by the USEPA and by

other states.

These guidelines have also been used

as a basis of the procedures in 35 Illinois

Administrative Code Part 302 Subpart E and

L.A. REPORTING (312) 419-9292

Subpart F for deriving water quality criteria.

In the full USEPA method, often

referred to as Tier I, the minimum database

consists of toxicity data for representatives

of 8 parenthesis (reduced to 5 in Subpart F)

end of parenthesis, different groups of

animals.

A statistical procedure then finds

the 5th percentile of the distribution of the

data. That is, 95% of the organisms are

considered less sensitive than the one at the

5th percentile level.

For the acute criterion, this number

is divided by 2 and in the chronic criterion it

is used as is.

However, the chronic criterion is

often derived by using an acute to chronic

ratio, parenthesis (ACR) end of parenthesis,

obtained from data for several species when

adequate chronic tests are not available for

all the specified groups of organisms.

In the proposed standards presented

here, the quality of the databases available

does not always allow use of the Tier I

L.A. REPORTING (312) 419-9292

procedure for all substances and so a default

(Tier II) procedure is used.

The Guidelines process involves

several steps. First, data for each substance

was obtained from the USEPA AQUIRE, that's

spelled A-q-u-i-r-e, database and any other

sources that were found coincidentally.

USEPA Ambient Water Quality Criterion

documents and Great Lakes Water Quality

Standards Initiative documents were also

consulted for all substances.

Second, the data was tabulated as

directed by the Guideline.

Third, much of the original

literature, mostly journal articles, where the

original data was presented was obtained from

our library or other libraries so that the data

could be verified.

This was especially necessary for the

data for the most sensitive species since this

data is most important in determining the

actual level of the criterion.

Fourth, statistical calculations were

made by use of a spreadsheet according to the

L.A. REPORTING (312) 419-9292

equations in the Guidelines.

Finally, documents were prepared for

each of the substances and are part of the

package submitted.

With the exception of the BETX

parameters, the standards for the substances in

this rulemakeing are to apply only to General

Use waters.

Therefore, I used data from only

warm-water organisms in the derivations for

Zinc, Nickel and cyanide standards.

Trout, salmon and other cold-water

species were included in the development of the

BETX standards for the Lake Michigan Basin, but

not for General Use waters because these

species do not occur in Illinois waters outside

of Lake Michigan.

Additionally, only species with

reproducing wild populations in the Midwest

were utilized in the derivations.

Metals that have toxicity influenced

by water hardness have standards expressed as

an equation containing a factor for the slope

hardness relationship.

L.A. REPORTING (312) 419-9292

Slope values for Nickel and Zinc in

our proposed standards are the same values as

found in the most recent national criteria

documents for GLI standards.

Given that all these substances had a

large database of toxicity test results when

the national criteria were published, the

additional tests I found should have very

little impact on the slope value and we

therefore saw no need to change them.

Of all the substances considered in

this rulemaking, only benzene is believed to

have significant human health

effects-cancer-such that a separate human

health standard is necessary since such

standards are lower than those necessary to

protect aquatic life.

I reported human health criteria for

the other BETX substances under the individual

summaries for the purpose of demonstrating that

these values are much higher than the standards

protective for aquatic life.

The metals likewise are not harmful

to humans at the concentrations regulated for

L.A. REPORTING (312) 419-9292

aquatic life. The Human health standard for

benzene is the same as the Lake Michigan

standard in 302.504(a).

There are currently acute and chronic

General Use standards under the weak acid

dissociable cyanide form.

The reason they are being readdressed

stems from the fact that they were taken

directly from USEPA national criteria document,

which means that cold-water species such as

trout and salmon were used in the criteria

derivation.

Since General Use waters are

virtually all warm water habitats, these

standards have come under scrutiny.

The Metropolitan Water Reclamation

District of Greater Chicago obtained

site-specific relief from the Illinois

Pollution Control Board several years ago for

weak acid dissociable cyanide based on the

premise that warm water species were not as

sensitive. The site-specific standards they

obtained are very similar to the values we

propose.

L.A. REPORTING (312) 419-9292

The R88-21 rulemaking (Toxics)

recognized that total cyanide was not

representative of the toxic component of this

substance. Total cyanide laboratory analysis

measures complexed forms of cyanide, such as

some of the iron-cyanide compounds that are

known to be nontoxic.

Free cyanide is a rough equivalent of

dissolved metals, but unfortunately free

cyanide is difficult to measure and other

weakly bound forms of cyanide not measurable as

free cyanide are probably also toxic.

A few analytical methods measure

forms of cyanide that are not all inclusive as

is total cyanide. One of these, weak acid

dissociable cyanide was chosen as the best

available alternative.

A primary reason for revising the

cyanide standard is because the original R88-21

two number cyanide standard was derived using

cold-water species.

New data from native warm water

species is considered in this update because no

search for new data has been conducted to our

L.A. REPORTING (312) 419-9292

knowledge since the early 1980s. We are

retaining weak acid dissociable cyanide as the

best available form to regulate.

This concludes my pre-filed

testimony. I will be supplementing this

testimony as needed during the hearing. I

would be happy to address any questions at that

time.

MR. SOFAT: Thank you, Mr. Olsen.

HEARING OFFICER TIPSORD: Excuse me,

before we proceed, I just want to note for the

record that the Guidelines mentioned and the

information from the USEPA that you discussed

in your testimony, Mr. Olsen, was all apart of

the original proposal filed with the Board and

the exhibits; is that correct?

MR. OLSEN. Yes.

ALAN KELLER,

called as a witness herein, having been first

duly sworn, was examined and testified as

follows:

L.A. REPORTING (312) 419-9292

EXAMINATION

Q. Mr. Keller, I'm going to hand you

this document and ask you to review it for a

few moments.

Mr. Keller, do you recognize this

document that I just handed to you?

A. Yes, I do.

Q. Would you please tell us what this

is?

A. This is my pre-filed testimony

concerning the BOD/CBOD issue.

Q. Is that a true and accurate copy of

the document that was filed with the Board?

A. Yes, it is.

Q. Would you please present your

testimony today?

A. Yes. My name is Alan Keller and I'm

supervisor of the Northern Municipal Unit of

the Permit Section of the Division of Water

Pollution Control.

I have worked for the Agency since

June 1972. I have worked in the Permit Section

my entire career with the Agency and have been

responsible at one time or another with all the

L.A. REPORTING (312) 419-9292

permit programs.

In my present capacity, I manage a

unit, which reviews construction permits and

NPDES permits for municipal and semi-public

facilities and also perform other duties

associated with municipalities.

I also serve on two design criteria

groups, which establish the specific design

criteria for sewers, lift stations and

treatment plants for municipal facilities.

One group is the Agency Division of

Water Pollution Control Design Criteria

Committee and the other group is the Wastewater

Design Criteria Committee for the Great

Lakes-Upper Mississippi River Board of State

and Provincial Public Health and Environmental

Managers.

I have a Bachelor of Science Degree

in Civil Engineering from the University of

Illinois concentrating in Environmental

Engineering and I am a Registered Professional

Engineer in Illinois.

My testimony will discuss the

reasoning behind the development of the CBOD5

L.A. REPORTING (312) 419-9292

test.

THE REASONING BEHIND CBOD5 TEST

The Agency has interpreted the intent

of 35 Illinois Administrative Code 304.120 with

respect to compliance with the respective 5-day

biochemical oxygen demand (BOD5) effluent

requirements to be the 5-day carbonaceous

biochemical oxygen demand (CBOD5).

35 Illinois Administrative Code

309.141 allows the Agency to establish the

terms and conditions of each NPDES permit and

directs the Agency to ensure compliance with

the effluent limitations under Sections 301 and

302 of the Clean Water Act.

40 Code of Federal Regulations 133

provides for the use of CBOD5 for determining

compliance with the definition of secondary

treatment requirement.

This regulation was revised in the

September 20, 1984 Federal Register to allow

for the use of CBOD5.

The Agency has implemented the use of

CBOD5 in lieu of BOD5 in NPDES permits since

1986 and also incorporates ammonia nitrogen

L.A. REPORTING (312) 419-9292

water quality based effluent limits where

appropriate.

At treatment facilities where

complete nitrification occurs and treatment

facilities where no nitrification occurs, the

CBOD5 would not be substantially less.

The use of the BOD5 test on raw

sewage or influent only measures the

carbonaceous demand in the sample because

insufficient nitrifying bacteria would be

present during the 5-day test period.

It normally takes about ten days for

a sufficient number of nitrifying bacteria to

develop to have a measurable effect on the BOD5

test. (See Attachment 1 as part of my

pre-filed document).

However, in a treatment process where

partial nitrification occurs, large numbers of

nitrifying bacteria are present and

nitrification can occur during the effluent

BOD5 test.

The BOD5 test is designed to measure

the carbonaceous demand in a sample and to

measure the efficiency of a treatment process

L.A. REPORTING (312) 419-9292

by comparing the carbonaceous demand before and

after the treatment process.

In treatment processes that do not

nitrify or completely nitrify the use of the

BOD5 test on both the influent and effluent

will provide satisfactory results.

However, in treatment processes that

partially nitrify the use of the BOD5 test on

both the influent and effluent will compare the

carbonaceous demand in the influent with the

carbonaceous and nitrogenous demand in the

effluent.

Such a procedure would provide no

useful information on the carbonaceous removal

efficiency in a treatment process.

An accurate determination of the

removal efficiency of a treatment process in

which partial nitrification occurs would

require the carbonaceous demand of the influent

to be measured by the BOD5 test and the

carbonaceous demand of the effluent to be

measured by the CBOD5 test, which suppresses

the nitrogenous demand.

Requiring the BOD5 test on the

L.A. REPORTING (312) 419-9292

influent and the CBOD5 test on the effluent of

all facilities would allow a uniform policy on

carbonaceous removal throughout the state.

The effluent from a treatment plant

consists of many components, the Agency

believes that the quality of the effluent can

best be assessed and controlled when each of

the components are analyzed and controlled

individually.

The characteristics of the effluent

can best be assessed when the CBOD5 test is

used to measure the carbonaceous demand and

where ammonia nitrogen effluent standards are

appropriate use the ammonia nitrogen test to

measure the nitrogenous demand.

This procedure would be more logical

than trying to measure the combined

carbonaceous and nitrogenous demand with the

BOD5 test, which has been proven to provide

inconsistent and misleading results.

In addition, the attached figures

depict the influence of nitrification on the

BOD test Attachment 1 was taken from Metcalf

and Eddy's, Wastewater Engineering: Treatment

L.A. REPORTING (312) 419-9292

Disposal, Reuse Second Edition, Page 90.

Attachment 2 was taken from Metcalf

and Eddy's, Third Edition, Page 76. The Third

Edition also states the following: Because the

reproductive rate of the nitrifying bacteria is

slow it normally takes from 6 to 10 days for

them to reach significant numbers and to exert

a measurable oxygen demand.

However, if a sufficient number of

nitrifying bacteria are present initially, the

interference caused by nitrification can be

significant.

When nitrification occurs in the BOD

test erroneous interpretations of treatment

operating data are possible.

The Agency regulates the nitrogenous

biochemical oxygen demand of wastewater by

incorporating the ammonia nitrogen water

quality based effluent limits in NPDES Permits

as appropriate under Sections 304.105 and

304.122 of Subtitle C: Water Pollution.

This concludes my pre-filed testimony

I will be supplementing this testimony as

needed during the hearing. I would be happy to

L.A. REPORTING (312) 419-9292

address any questions.

MR. SOFAT: Thank you, Mr. Keller.

This concludes Agency's proposal.

HEARING OFFICER TIPSORD: For the

record, since we read the testimony into the

record, I would like to admit Attachment 1 as

Exhibit No. 2 in the hearing record and

Attachment 2 as Exhibit No. 3 in the hearing

record so that they are in the hearing record

and I have copies of those.

MR. SOFAT: Okay. Thank you.

HEARING OFFICER TIPSORD: Is there

any objections to that? I see none.

Attachment 1 of Mr. Keller's testimony will be

admitted as Exhibit No. 2 and Attachment 2 will

be admitted as Exhibit No. 3. If we can go

off the record for just one second?

(Discussion held off the record.)

HEARING OFFICER TIPSORD: Back on.

At this time then are there any

questions for the Agency? And it might be best

if we organize them in such a way that we go in

order of the rule.

If you have general questions, we'll

L.A. REPORTING (312) 419-9292

ask general questions. And if we can, just for

ease of the record, if that doesn't work out,

it doesn't, but if we can do that.

MR. ETTINGER: If I'm the only one

with questions, we'll save a lot of time here.

HEARING OFFICER TIPSORD: Go ahead.

We'll start with you.

MR. ETTINGER: My name is Albert

Ettinger, E-t-t-i-n-g-e-r, I'll give you a card

later. The first question I had had to do with

this Page 7 of the testimony here.

You mentioned the IEPA intends to

provide the Board a draft Agency rule for

implementing water quality based effluent

limits at hearing under R02-11 and here we are,

where is it?

MR. MOSHER: It's still under

development and we intend to present that at

the March hearing in Springfield.

MR. RAO: I have a brief follow-up to

that question. You also mentioned the proposed

changes to the standard for several issues

regarding the implementation of the proposal

standards, would you please in a briefly

L.A. REPORTING (312) 419-9292

explain or summarize what those implementation

issues are and how you plan to resolve them?

MR. MOSHER: Okay. The Board's rules

as they now exist and then with the changes

that we propose have several aspects that the

Agency really needs and some instruction.

And I think the people looking at

what the Agency does would like to know what

procedures the Agency uses to turn, in some

cases, these water quality standards into NPDES

permit limits.

For example, many of the metals are

based on the hardness of the ambient water and

we need to provide an instruction of where

we're going to get that hardness data and how

it will be used to plug into the formula in the

Board's regs and then come up with either a

permit limit or just interpreting ambient water

quality data under these standards. So there

has to be some procedures.

The Agency, for example, will use

hardness data from the nearest downstream

available station on the receiving stream for

the discharge and that kind of sets that matter

L.A. REPORTING (312) 419-9292

clear that that's where we're going to try to

get the hardness data.

And then it would provide

alternatives if you don't have data from that

ideal spot where else would you get it? How

would you either use an average of that data or

some other statistic of that hardness data.

And we go on through the rule and describe what

we're going to do.

One of the main parts of this

implementation Agency rule will be how the

Agency will do what is called a reasonable

potential analysis to determine if a certain

substance needs to be regulated in that NPDES

permit.

Is there a reasonable potential for

it to exceed the water quality standard. If

so, we have to put limits in that permit for

that substance.

And that involves a statistical

procedure. We intend to spell all that out and

it will take many, many pages to do that.

One final thing to mention is we will

have an instruction on how the Agency will do

L.A. REPORTING (312) 419-9292

the metals translator now that we will have

dissolved metals water quality standards, but

yet we still have to regulate metals on a total

metal basis.

How will we require data to be

provided to us so that we will do that properly

and protect the receiving stream for the

dissolved metals water qualify standard?

That's going to involve a lot of --

well, some effluent monitoring for dischargers

who want to take advantage of that metals

translator provision.

So this is going to be a lengthy

document and we feel that it belongs as Agency

rules. We would like to suggest that the Great

Lakes Initiative Rulemaking came up with a

similar Agency rules document for water quality

based effluent limits.

And this document will be for General

Use waters and it will parallel the existing

Agency rule, which is part 352 in the Illinois

Administrative Code.

So there will be a parallel system of

how the Agency will do its business.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: I'll get back to

asking questions if I can just make this

comment in pointing out a problem here which is

to the effect of some of these rules.

This raises a concern which is that

it's hard to understand until we look at your

implementation rules or the effect of the

standard changes and will be difficult to

understand without looking at your

implementation rules; is that correct?

MR. MOSHER: No. The Board's rules,

of course, are water quality standards and they

stand by themselves. Yes, the Agency has to

use those standards to set permit limits. You

know, it's a matter of what comes first.

Properly, I think the Board's rules

come first. We can study those right now,

answer questions. And at the next hearing,

we'll give out this draft document for Agency

rules.

Possibly there will be enough

interest or questions that we'll have to have a

meeting between the Agency and interested

parties to explain that. It's difficult to say

L.A. REPORTING (312) 419-9292

where the discussions belong. I believe in the

GLI process, we did a similar thing to what

we're trying to do here.

MR. ETTINGER: In the GLI process,

didn't the Board openly say part of what you

thought should be rules should go in the

Board's standards?

MR. MOSHER: I wasn't too active in

that, so I don't know if I can answer that

question.

HEARING OFFICER TIPSORD: Before we

proceed, if it would be possible I realize that

you're looking at March 6, but if it would be

possible for those to be ready perhaps before

the hearing and sent to the service list prior

to the hearing so people can have a chance to

look at them?

MR. SOFAT: We'll do that. We'll

send them before the hearing date.

MR. ETTINGER: Yeah, I think we'll

have to discuss this eventually. I will say I

am a little concerned that we're going to be

presented with what we're told will be a very

complex document and probably won't have much

L.A. REPORTING (312) 419-9292

time before March to look at it. I know we all

enjoy these hearings, but going about it the

way we're going, a third hearing, you know --

HEARING OFFICER TIPSORD: I would

just note that we have not yet gone to first

notice with these rules, which means we're

going to have at least one more hearing in any

event because we will have to have it if

nothing else the economic statement hearing so

we will have to have at least one more hearing

in any event.

MR. ETTINGER: All right. Looking

now at the BETX rules. I have some sort of --

I'm trying to figure out the practical effect

of these rules. As I understand this overview

of the derivation process when you write a

permit now you're using numbers that have been

derived using one of the formulas in the water

quality standards, Tier I or --

MR. OLSEN: Yes, we've been using

BETX numbers for some years now. They

fluctuated around somewhat because of data

interpretation and new data becomes available

and so on.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: I think I have the

second to the last one of these. I would just

like to give people a copy of one of these so

that we know the sort of thing we're looking

at. And I guess we'll mark this as an exhibit.

Is that okay?

HEARING OFFICER TIPSORD: For the

record, I've been handed an Illinois Register

notice of public information listing derived

water quality criteria and we'll go ahead and

admit this as Exhibit 4 if there's no

objection. I see none. We'll mark this as

Exhibit 4.

MR. ETTINGER: We're asking all the

witnesses collectively, is this the sort of

document that's generated now regarding these

standards?

MR. OLSEN: You're missing one

parameter in here by the way, you didn't get

the ethylbenzene.

MR. ETTINGER: Bottom of Page 2?

MR. OLSEN: I think they are out of

order or something. Okay. Here it is.

MR. ETTINGER: Is this the last one

L.A. REPORTING (312) 419-9292

or second to the last one?

MR. OLSEN: No. They come out

quarterly. Anyway, those numbers -- well, as I

said they have fluctuated a bit. I don't think

they changed much though.

HEARING OFFICER TIPSORD: Excuse me,

before we proceed, could I ask for the record

if we know what the Register citation for this

is? Do we know what Illinois Register this

appeared in at least by date?

MR. ETTINGER: I can't really tell

you. This was actually faxed to us by the

Agency some time ago. The date it was faxed to

us was November 22, 2000, so I assume it was

public before then but I don't know how much

before it was learned.

MR. OLSEN: Excuse me, Madam Hearing

Officer, we often will fax out my copy. And we

eventually will maybe get a copy from the

Illinois Register with the actual date of

publication, but we usually will send

interested parties something, you know, just

what we've done ourselves. So do you want us

to find out what the actual publication date

L.A. REPORTING (312) 419-9292

for this one was?

HEARING OFFICER TIPSORD: If we could

that would be helpful because then we can look

at an original rather than the copies.

Sometimes they are not clear and as you pointed

out, Mr. Olsen, they may be out of order too.

That would be helpful. And that will be fine

to let us know in March.

MR. ETTINGER: What is the practical

effect as your understanding of adopting the

water quality standard here as opposed to

operating under this Illinois Register criteria

procedure?

MR. MOSHER: Well, the substances in

this list published in the Illinois Register

are derived water quality criteria under 35

Illinois Administrative Code 302.210.

They address a water quality standard

and narrative water quality standard that says

water should be free of toxic substances and

toxic amounts essentially.

We have used the four BETX substances

again and again in permits and this system of

deriving water quality criteria under the

L.A. REPORTING (312) 419-9292

narrative standard publishing in the Illinois

It's a little hard for people to go

to the Board's regs and it's impossible to go

to the Board's regs. You can see the narrative

standard, but you can't see all the

calculations that Clark does and the final

numbers that eventually get used in permits.

So we thought since we used these

four substances again and again in NPDES

permits that the time had come to establish

them as water quality standards numerically in

the Board's regulations.

We had the freedom in proposing this

to the Board to use what we thought were the

latest and best methodologies to do the

derivation.

We also went back and looked for any

new data that appeared in the literature and

these standards are what we think are the best

we could do right now.

Once the Board adopts them, of

course, they won't change. We won't react to

new data anymore until it becomes apparent that

L.A. REPORTING (312) 419-9292

we need to go back to the Board and propose a

revision to those standards.

MR. ETTINGER: My understanding is

that these numbers in this document that you

published change from time to time based on new

data. How do you decide that the science is

firm enough or how do you decide you want to

propose a water quality standard as opposed to

continuing to make changes?

MR. OLSEN: Well, there's no firm way

of saying we're at the -- that the number won't

change much in the future, but I think for

several of these substances at least there is a

fairly big data base and we can say well, this

is pretty close to what it should be.

I mean, this is just a -- you know,

it's a construct, it's a human construct. We

cannot be absolutely sure that these numbers

are safe in the environment and safety factors

and so on are involved.

And, so, at some point as Bob says,

we have used these a lot and it would be just

nice if the public knew what the number was and

we'll keep it that way for 5, 10, 15 years or

L.A. REPORTING (312) 419-9292

something like that.

MR. ETTINGER: Looking at this Page 2

of this overview of standards derivation

process -- that's Exhibit F, I'm sorry.

You make reference to the currently

published -- in the last full paragraph in the

middle of the --

HEARING OFFICER TIPSORD: Excuse me,

Mr. Ettinger. I'm sorry to interrupt, but

that's Exhibit F in the Agency's proposal,

correct?

MR. MOSHER: Right.

MR. OLSEN: I believe so.

MR. ETTINGER: It says here the

currently published Illinois Register 14428

September 2001 water quality criteria for BETX

and General Use waters are as follows: And is

that based on a document like Exhibit 4 only a

more recent copy of it? Is that where these

numbers come from?

MR. MOSHER: Yes.

MR. OLSEN: Well, actually the

exhibit that you showed is just a summary that

we put in the Illinois Register. I have the

L.A. REPORTING (312) 419-9292

whole worksheet, the whole document, which is

part of the record, this record.

Also, which is like -- and there can

be 5, 10 pages long with all the bibliography

of all the data. Every bit of data is

tabulated and then what data we've actually

used.

There's more data in there than we've

actually used just to show you what else is

available, but then we'll say why we didn't use

some of the data.

And then it goes through the data

reduction processes and we don't actually have

the spread sheet read on there, but we do that

on the computer so that's just a few key

strokes.

MR. ETTINGER: Most of the numbers,

just glancing through here, are fairly close

between the last Illinois Register and the

proposal except there's a couple that seem to

vary that General Use -- I'm sorry, the human

health standard that is on Page 1 of Exhibit F

seems to say 0.31 and the human health water

quality criteria for benzene it says .021. Am

L.A. REPORTING (312) 419-9292

I comparing apples and oranges there or has the

science changed it that much?

MR. OLSEN: Well, we decided just to

keep it the GLI number. They have the same

number in both places. GLI actually used the

lower risk number 10 to the minus 5th instead

of 10 to the minus 6.

So if you're familiar with a cancer

risk based criteria and/or standard development

of course that makes quite a bit of difference.

MR. ETTINGER: So previously or as of

last September you were using, shall we say, a

more cautious cancer standard and now you're

going with the GLI standard because and/or

which is less protective?

MR. OLSEN: That's right.

MR. RAO: May I ask a follow-up

question on that? Mr. Olsen, the purpose of

human health standard ambient micrograms per

liter is based on incidental water consumption

and ingestion of organisms under GLI, can you

please explain why the human standards for

benzene was not set at the Tier I human cancer

criterion in July, which was, I think, 12

L.A. REPORTING (312) 419-9292

micrograms per liter --

MR. OLSEN: First of all --

MR. RAO: -- you know, 12 micrograms

per liter for the open waters of Lake Michigan?

MR. OLSEN: The open waters of Lake

Michigan are also drinking waters so that would

add more exposure. What this is based on is

only very incidental actual contact with the

water and mostly it's based on fish

consumption.

MR. RAO: Are there any situations

where any of these General Use waters are also

used for drinking water?

MR. OLSEN: Well, if they were used

for drinking water, we would have to develop a

criterion, our number, but the very few places

in Illinois -- well, perhaps I should let Bob

answer that.

MR. MOSHER: The drinking water

sources are protected under the Subpart C

standard. I'm not exactly sure how benzene is

handled and I think we're probably going to

have to go back and research an answer to your

question on that.

L.A. REPORTING (312) 419-9292

MR. RAO: What Subpart C standard are

you talking about, the food processing --

MR. OLSEN: Yes.

MR. RAO: -- and Public Water

Environmental Standards?

MR. MOSHER: Yes.

MR. RAO: It would be helpful if you

could take a look at those standards and see

what supports it.

MR. OLSEN: Okay.

HEARING OFFICER TIPSORD:

Mr. Ettinger, if you would like to continue?

MR. ETTINGER: Sure. I'll display my

ignorance by saying are any of those BETX

substances bioaccumulative?

MR. OLSEN: Well, to a small degree

if the cancer risk assessment number is such a

low number that when you work it into the

equation even a small amount of

bioaccumulation -- these aren't ordinarily

considered bioaccumulative like PCBs and things

like that, but they do obviously get into the

organism and contaminate to whatever degree of

the flesh of the fish.

L.A. REPORTING (312) 419-9292

So if a cancer number is such a low

number, the final water quality criterion still

will be quite a low number.

MR. ETTINGER: Just to compare the

benzene and these two things again, is the

Great Lakes benzene standard here, is that

based solely on drinking water or is that also

based on fish consumption.

MR. OLSEN: Well, there are two

numbers. One based I think -- there are two

numbers, one should be for the open waters of

the Great Lakes and of Lake Michigan, which is

designated as a drinking water source.

And there is another number which is

designated for the few streams and few little

places around Ben Harbors, which are designated

as drinking sources, but there is still fishing

going on there. And, you know, splashing in

the water, canoeing or boating.

MR. ETTINGER: The .31 is the number

that they developed for the GLI to protect

fishermen who eat the fish as opposed to the

.012, which was to protect the drinking water.

MR. OLSEN: I'm not sure I'm with

L.A. REPORTING (312) 419-9292

you.

MR. ETTINGER: The number we have

here for general human health is the .31

standard but you're proposing from what I

gather also the GLI standards for harbors and

the tributaries are not drinking water sources,

is that correct, Mr. Olsen?

MR. OLSEN: No. The 021 was based on

fish flesh -- mainly fish consumption also in

this document.

MR. ETTINGER: That's what I'm

confused by. So the .021 in the Illinois

consumption?

MR. OLSEN: Yes, but the risk level

for General Use waters is 10 to the minus 6 and

it's somewhat contradictory. The waters for

the Great Lakes are based on a risk level of 10

to the minus 5th.

However, for bioaccumulative

substances the numbers really -- for substances

that really bioaccumulate to a great degree may

not make that much difference. It's just that

we're dealing with something that doesn't

L.A. REPORTING (312) 419-9292

bioaccumulate that much but still obviously

there will be some in the flesh of the fish if

there's benzene in the water.

MR. ETTINGER: Forget I ever brought

up the bioaccumulative concept. The difference

between the standard you were using last

September or September 2001 and this proposed

standard has to do with the cancer

risk consumption analysis --

MR. OLSEN: We're just going with the

Great Lakes number for uniformity sake.

MR. MOSHER: You have to realize that

the General Use Subpart F procedures for

deriving these criteria that you presented to

the Board as Exhibit 4 were adopted in 1990, I

believe.

They were a late '80s work project,

Great Lakes Initiative came and took another

look at this and said, well, it really doesn't

have to be that low. Here's Great Lakes

Subpart E derivation procedures. It is the

latest way to do this. And we said we should

go with that. It's more the state-of-the-art

derivation.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: As I understand the

state-of-the-art is that they decided to use a

different cancer risk factor in the GLI than

they did in the 1990 analysis.

MR. OLSEN: That's right.

MR. ETTINGER: You talked about

cyanide. On cyanide I understand that the

basic changes is that you threw out the Trout

from the analysis here; is that correct?

MR. OLSEN: Well, for the General Use

standard, yes, we just stayed away from

so-called cold-water species.

MR. ETTINGER: Is the Agency aware of

cold-water species in waters outside of Lake

Michigan and Illinois?

MR. MOSHER: We've looked into that

quite a bit over the years and we're confident

that there aren't self sustaining populations

of cold-water species, Trout and Salmon

specifically, in waters other than Lake

Michigan and Illinois. There are, of course,

several spots in the state where DNR stocks

those on a put intake basis so fishermen can

catch them before summer comes and the

L.A. REPORTING (312) 419-9292

temperatures get too high for them to survive.

But we do not consider those

populations natural or sustained, so we don't

believe there is a reason to protect for

cold-water species in the General Use waters.

MR. ETTINGER: So the Agency believes

that all the trout stocked by DNR and in other

waters in Northern Illinois are dying in the

summer if they are not caught?

MR. MOSHER: There is some evidence

that at least in some summers that they

over-summer and survive, but the evidence for

their reproduction, to my knowledge, is

nonexistent.

MR. ETTINGER: I believe this was

Mr. Olsen's testimony, he said, only species

with reproducing wild population utilized

derivation, do I understand that to mean that

you had some data on warm-water species that

you didn't use because they didn't reproduce in

the Midwest?

MR. OLSEN: Well, I don't use Western

species for instance, and I don't use foreign

species. Although, we have a provision that if

L.A. REPORTING (312) 419-9292

it seems as though the foreign species would

come from habitats that were similar to ours

and when we do our own criteria, we'll use data

for that just to try to fill in the data and

give us a general idea of the range of data

that's available. So does that answer your

question?

MR. ETTINGER: I believe so. Does

the Agency have any -- strike that.

How does the Agency deal with a

situation where somebody wants a permit to

discharge into one of these waters in which the

DNR is stocking the water with cold-water

species?

MR. MOSHER: I can't think of a time

when that has happened. At least in the direct

area of the stocking. If it ever did happen,

we would have to go by the Board's water

quality standards. There is the

anti-degridation regulation that could be

imposed at such a time.

MR. ETTINGER: In addition to fish in

looking at these cyanide standards you looked

at mussels. What is the sensitivity to mussels

L.A. REPORTING (312) 419-9292

with cyanide as opposed to warm-water fish?

MR. MOSHER: We're going to have to

check the database to see if we did use muscle

data in the cyanide analysis. Can we have a

minute to do that?

HEARING OFFICER TIPSORD: Yes.

MR. OLSEN: Well, I don't see any

muscle data here or there just wasn't any.

MR. ETTINGER: If nobody else has

anything about cyanide I'm going to talk about

metals now or a question about metals.

First, we had a question about the

cadmium standards. I understand it and correct

me if I'm wrong, your language here says but

not to exceed 50 micrograms per liter; is that

correct?

MR. MOSHER: Yes.

MR. ETTINGER: Why is that being done

or proposed?

MR. MOSHER: As I recall, 14 years

ago or so, these hardness based water quality

standards for metals were new and, of course,

we had no experience with them. We noted that

if hardness of the ambient water were to be

L.A. REPORTING (312) 419-9292

very high then the acute standard for cyanide

could also be very high and approach or exceed

50. And we put that in there as a precaution.

Given that lack of experience as this

was adopted in 1990 and we've had eleven or so

years to implement that cyanide standard, we

had found that we never had to worry about

issuing a permit with a water quality based

daily maximum limit anywhere near 50 for

cyanide. It never happened.

MR. ETTINGER: Excuse me. You were

saying cyanide when I think you mean to say

cadmium.

MR. MOSHER: Oh, I'm sorry, I mean

cadmium. And so between the fact that it never

happens in our experience and that we have

learned to trust the formula standards is being

established in a protective and widely regard

as such, we decided that that extra precaution

we threw in wasn't necessary. The lead

standard that was updated in 1996 used to have

a similar ceiling to it, which we did away with

when we updated it in '96.

MR. ETTINGER: Do you know of any

L.A. REPORTING (312) 419-9292

dischargers who are doing this 50 micrograms

per liter of this cadmium limit?

MR. MOSHER: I don't know of any.

Maybe Al --

MR. KELLER: I don't know of any.

MR. RAO: I have a follow-up. Is the

upper limit of 50 micrograms per liter, is that

health based limit or is it some arbitrary

standard?

MR. MOSHER: I believe it was the

pre-1990 cadmium water quality standard. I'm

not exactly sure, but I will check that and

report back. I believe that was the case and

that's why we picked 50 as the maximum it could

ever be.

MR RAO: You also mentioned in your

experience in the last ten years or so that you

have not come across hardness levels high

enough to exceed the 50 micrograms per liter,

would it be possible for you to give some

information as to the typical hardness level in

the state?

MR. MOSHER: Yeah, I could put a

summary based on actual data. But just in

L.A. REPORTING (312) 419-9292

general for right now we deal with hardness

values quite a bit. There's a north, south

decrease in hardness as you go from Northern

Illinois to southern Illinois. We feel that's

mainly based on the ground water that tends to

flow into streams.

Southern, Illinois having sandstone

as the first layer of bedrock that you come to

and then as you go further north you're more

likely to get limestone.

And, typically, a hardness -- if I

just had to pick a number for Illinois, 250

milligrams per liter hardness is fairly

typical.

It varies quite a lot. There's a

stream in Southern, Illinois where 50

milligrams per liter would be typical.

But that's the very southern tip.

And as you work north it increases. There's

some northern Illinois streams that go up to

300, 350 typically. If you would like I can

submit some examples.

MR. RAO: A number of these are based

on hardness and I just want to know what the

L.A. REPORTING (312) 419-9292

standard would be?

MR. MOSHER: We did supply I believe

in Exhibit F when we come to the metals we use

a hardness of 250 milligrams per liter to

express what the standard would be plugging in

that hardness value to the formula.

MR. RAO: In some of the attachments

I see you have used the hardness of 50

milligrams per liter.

MR. MOSHER: Sometimes we use 50

because the national criteria documents use 50

to express. And I want to correct myself, it's

not Attachment F, it's a one-page attachment

and that's G. That's the one that uses 250 to

express what the metals standard would be under

that hardness condition.

MR. ETTINGER: On Page 21 of Exhibit

F you discussed the cadmium calculation in the

Federal level, are you following that process?

MR. MOSHER: We're trying to keep up

with that. When we were working on this

proposal USEPA published a draft national

criteria for cadmium and it was an update from

their previous document which is from the mid

L.A. REPORTING (312) 419-9292

'80s and the public comment period was ongoing

at that time. I have not seen an update of the

status of that lately. Again, we could find

that out easily enough and report back.

MR. ETTINGER: How does the current

Illinois cadmium standard compare with the

existing Federal criteria?

MR. MOSHER: The current Illinois

cadmium general standard and the mid '80s

Federal criteria?

MR. ETTINGER: Yes.

MR. MOSHER: I have to trust my

memory here, but I believe we took the Federal

criteria. We may have modified it a little bit

by removing one of the species that was

important in that Federal calculation.

And, again, that's 14 years ago and I

will have to go back and check that, but what

I'm saying is I believe the Board's current

cadmium general standard is fairly similar to

the 1980 something national criteria.

MR. ETTINGER: Is that true for the

acute?

MR. MOSHER: I would think it's true

L.A. REPORTING (312) 419-9292

for both acute and chronic. That's something

that can be easily be checked and we can come

back with that.

MR. ETTINGER: Now, we go to dissolve

metal versus total. I have a couple of

questions here. Does it vary from element to

element or is there one translator for

dissolved metal?

MR. ETTINGER: Are you referring to

the conversion factor?

MR. MOSHER: Yes.

MR. ETTINGER: What is that?

MR. MOSHER: The conversion factors

are unique. USEPA has published a lot and we

have taken the most recent list and directly

included those conversion factors in these

proposed standards.

MR. ETTINGER: You convert it once

from -- one way and convert it back again?

Now, explain that a little better.

MR. MOSHER: In the absence of a

site-specific data for the effluent or

receiving stream, we intend to just take the

inversion of the conversion factor we come back

L.A. REPORTING (312) 419-9292

to our old total metal value and apply that as

the permit limit if there were no mixing zone

and if there were no site-specific data

provided to us by the discharger who wanted to

take the metal translators.

So the old total is being used of

course now and the dischargers are meeting

those permit limits, but some of them are

having trouble meeting that limit based on the

total metal standard.

They will have the opportunity to

prove to us that their discharge will meet the

new dissolved metal standard in the receiving

stream.

MR. ETTINGER: Let's imagine for the

sake of my example that the conversion for a

given metal is 50 percent dissolved, and that's

the standard cookbook USEPA, I have a total

limit now of one milligram per liter, if I

apply that conversion factor on my next permit

would I get two milligrams per liter?

MR. MOSHER: No. You would go back

to the existing total standard. We're changing

it to dissolve. So in your example, the new

L.A. REPORTING (312) 419-9292

standard is going to be half of what the

existing total was. We simply take the

inversion of that and go back to the same

permit limit.

MR. ETTINGER: So you shake it to the

left and shake it to the right and come out the

same place before?

MR. MOSHER: Correct.

MR. ETTINGER: But for example using

my example in this particular metal if only 25

percent was dissolved that would be an unusual

case, but then you would be able to come out

with a different permit?

MR. MOSHER: Right.

MR. ETTINGER: Because now you would

not be undoing everything that you've just

done?

MR. MOSHER: Correct.

MR. ETTINGER: Is the Agency going to

look at cases in which they believe that the

gram conversion factor may be too low? In

other words, if you went to dissolve you would

find the percentage of dissolve was higher than

what you would expect just using the USEPA

L.A. REPORTING (312) 419-9292

formula?

MR. MOSHER: Those were calculated by

going back to laboratory toxicity test, which

are the basis of standards to begin and the

USEPA said they'll go back and recreate some of

those measure totals and dissolved and see what

the difference was and that's why he came up

with those factors.

They are laboratory factors and what

it all means is -- we all now agree that

dissolved metal is the toxic form, the question

should have been based on everything recreated,

all that to get where they should have been in

the first place.

MR. ETTINGER: I guess my question

is, is it only going to work to dissolve a

higher percentage rather than a lower

percentage than what they came out with in the

USEPA laboratory or could it happen that the

dissolve is a higher percentage than the

national figures that USEPA has published.

MR. MOSHER: I'm trying to think that

through.

MR. ETTINGER: Let's try and use an

L.A. REPORTING (312) 419-9292

example, maybe it will work. We decided that

the USEPA number that comes from that chart

that you've got is 50 percent, if we have a

metal in the number in the water we will assume

that 50 percent is dissolved and 50 percent is

not.

A particular discharger wants to

prove that in this particular case less than 50

percent is dissolved so he should have a lesser

cadmium, is it possible in the case of some

Illinois dischargers that it's actually more

than 50 percent as to a particular metal that

the number could actually be higher than what

the USEPA figure gives?

MR. MOSHER: I think the answer to

that question is going to be that that

discharger can make no use of the metal

translator procedure and we'll fall back to the

standards as it appears in the Board's rules

using the conversion factors.

MR. ETTINGER: Just in general, what

kind of factors cause and dissolve the total to

vary from one water body to another or one

discharger to another?

L.A. REPORTING (312) 419-9292

MR. MOSHER: It has a lot to do with

other contents in the effluent or water body

organic substances like humic acid, which are

very common. That's the stuff that after

leaves break down it's a tea color that some

waters have and that's present everywhere.

Those organic substances tend to

complex with metals. I'm not a chemist, but

they latch on to the metals, bend them up and

they no longer can penetrate the gills of a

fish or whatever.

Suspended solids and even things like

clay particles can do the same thing to some

degree. So municipal effluents have some of

these kind of things in them given their

nature, the result of treated organic waste and

there's still some organic particles in those

effluents and that's a good thing in terms of

metals.

MR. ETTINGER: As I understand it,

there's a provision for this metal conversion

factor in the existing GLI rules; is that

correct?

MR. MOSHER: Yes.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: And you proposed to

strike that from the portion that covers the

existing GLI rule and substitute this new

309.257?

MR. MOSHER: Yes.

MR. ETTINGER: How do you decide

whether to look at the conversion factor for

the effluent or receiving one?

MR. MOSHER: USEPA as a guidance

document that's been out for several years.

MR. RAO: Is that in your attachment?

MR. MOSHER: I believe it is. When

our implementation Agency rules come out, it's

going to tell people how the Agency will apply

this and we're going to be very dependent on

that document.

MR. ETTINGER: Just to be clear, the

discharger is not going to have the choice or

the receiving water in deciding which number he

likes best?

MR. MOSHER: If there's no mixing

zone.

HEARING OFFICER TIPSORD: I would

like to ask a follow-up to the next sentence

L.A. REPORTING (312) 419-9292

there. I assume that your implementation rules

will also address what your review of an

approval will constitute at that time?

MR. MOSHER: Yes, a number of samples

that we will have to have from the discharger,

but then again it will lead into a Federal

guidance document and the equations that are

found within that document.

MR. ETTINGER: Would you also take a

look at this and see if it might be possible to

do a cross reference with your rules with this

section.

MR. SOFAT: I will do that.

MR. ETTINGER: Just to be clear, if

the discharger doesn't think this conversion is

going to help him he does not have to do the

conversion?

MR. MOSHER: That's correct.

MR. ETTINGER: You're not going to

look at the conversion factor and say you

should do a tighter limit, the Agency is not

going to do that?

MR. MOSHER: No.

MR. ETTINGER: As to this rule, in

L.A. REPORTING (312) 419-9292

some cases at least, we're going to let the

discharger pick whether they like the number

better from the effluent or receiving water; is

that correct?

MR. MOSHER: That's what Federal

guidance allows. Now, ordinarily one would

think the effluent would be the more stringent

case because you have not had the mixing of the

ambient water with the natural goodies that are

mixed up with that water. So you would think

it's an advantage to the discharger if they

have a mixing zone to measure in the stream

itself.

MR. ETTINGER: Unless what the

discharger is putting out is dirtier than the

ambient water?

MR. MOSHER: In terms of suspended

solids that usually is the case in Illinois in

terms of BOD from my recollection, ambient

waters have about the same BOD as a 10, 12

discharger.

MR. ETTINGER: I had one more

question. Some of the conversion factors that

you have proposed like for example Nickel for

L.A. REPORTING (312) 419-9292

acute standard is .998, does that make a big

difference coming up with a number?

MR. MOSHER: No, it doesn't. I guess

that's what it's telling us when you take some

Nickel salt off the shelf and dissolve it in

some water in the laboratory and expose

organisms in this water to see how toxic it is.

We're taking USEPA and applying them.

You're correct.

MR. ETTINGER: When you're looking at

the hardness factor are you looking at the

influent or stream?

MR. MOSHER: Stream.

HEARING OFFICER TIPSORD: Mr Ettinger

has offered in the matter of site-specific

rulemaking for the sanitary district Decatur,

Illinois R85-15, 1987 Illinois Env. Lexis 424.

Is there any objection? I see none. We have

copies of that coming down too.

Mr. Ettinger, if you would like to

continue.

MR. ETTINGER: Yes. My -- we

discussed earlier pertaining to all of these

rules and proposals that these had earlier been

L.A. REPORTING (312) 419-9292

submitted to the public for review prior to you

going to the Illinois Register with it; is that

true?

I'm sorry, perhaps I wasn't very

clear. I believe you said that at least it's a

part of this that you discussed the proposals

as the standard with various interested parties

before the Agency formally made its proposal;

is that correct?

MR. MOSHER: Yes.

MR. ETTINGER: Is that true with

regards to the BOD/CBOD portion of the

proposal?

MR. MOSHER: No.

MR. ETTINGER: As I understand it,

just as a matter of BOD, CBOD is a fraction of

the total BOD; is that correct?

MR. OLSEN: That's true.

MR. ETTINGER: I gather also because

of the fact that the nitrifying critters

generally take longer to start going that NBOD5

is closer to total BOD5 than BOD30 is to

NBOD30?

MR. KELLER: That would depend on the

L.A. REPORTING (312) 419-9292

number of nitrifying organisms.

MR. ETTINGER: In general, do you

know what the ratio is of CBOD5 to the total

BOD5?

MR. KELLER: The total BOD5 or --

MR. ETTINGER: Let's just strike that

and start over. As to any particular

discharger, do you know what fraction of the

total BOD5 is CBOD5?

MR. KELLER: Are you talking influent

or effluent or just a nitrifying plant or a

non-nitryifying -- there's a lot of different

scenarios that I don't know which one you're

asking about?

MR. ETTINGER: Very good

clarification. We'll talk about effluent for

now.

MR. KELLER: Okay.

MR. ETTINGER: Just looking at

effluent as to any particular dischargers, do

you know what the ratio is of CBOD5 to BOD5?

MR. KELLER: Again for a nitrifying

facility that completely nitrifies.

MR. ETTINGER: Well, so it would

L.A. REPORTING (312) 419-9292

depend as to how much it nitrifies as to what

the ratio is as of CBOD5 to BOD5?

MR. KELLER: Yes, that's correct.

MR. ETTINGER: What kind of range are

you familiar with?

MR. KELLER: I really haven't

evaluated that range.

MR. ETTINGER: Le's give you some

credit here, you are the guy who is chiefly in

charge of writing the CBOD permits for all of

northern Illinois; is that correct?

MR. KELLER: Correct.

MR. ETTINGER: So you've looked at a

lot of sewage treatment plants, right?

MR. KELLER: Right.

MR. ETTINGER: But you don't know

what the ratio is of CBOD5 to total BOD5.

MR. KELLER: We have been requiring

monitoring the CBOD5 since 1986 and not had the

corresponding effluent data that you're asking

about.

MR. ETTINGER: So you agree that to

the extent that CBOD5 is not the same as BOD5

that this proposal represents a weakening of

L.A. REPORTING (312) 419-9292

the tool?

MR. KELLER: No. We do not believe

that.

MR. ETTINGER: Well, let's see here.

As I understand it, right now the BOD5 limit is

10 and 20 depending on the pollution ratio; is

that correct?

MR. KELLER: The BOD on it is 30

actually. If the pollution ratio show greater

than 5 to 1, it's 20. If it's greater than 5

to 1 and the population quotes are greater than

10,000 and if pollution ratio is less than 5 to

1 it is 10.

MR. ETTINGER: Thirty is the number

that is the secondary contact definition under

the Federal definition under secondary

treatment?

MR. KELLER: Correct. It's the

secondary treatment definition.

MR. ETTINGER: That question was even

poor by my standards. The Federal definition

of what constitutes secondary treatment as to

BOD is 30 BOD5; is that correct?

MR. KELLER: Correct.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: And so as to these

plants with the large amounts of pollution as

to BOD5, the limit that you put in the permit

is 30?

MR. KELLER: It typically is COBD5 at

25 as allowed by that same definition.

MR. ETTINGER: So you may get

compensation there from BOD5 to CBOD5 based on

the Federal regulation?

MR. KELLER: Correct.

MR. ETTINGER: And that's 133.102 the

definition of secondary treatment?

MR. KELLER: I believe that's the

correct number.

MR. ETTINGER: And so the Federal

government when they allow you to substitute

CBOD5 to BOD5 it's used as a 25 milligram per

liter CBOD5 in place of a 30 milligram per

liter BOD5; is that correct?

MR. KELLER: Correct.

MR. ETTINGER: But as to the limits

in the Board's rules where it currently states

20 BOD5 or 10 BOD5 you're not making any

compensation or conversion factor so to speak

L.A. REPORTING (312) 419-9292

for BOD?

MR. MOSHER: Correct.

MR. ETTINGER: What does the Agency

do in terms of writing a permit element for BOD

that ensures BOD standards?

MR. KELLER: Well, the standards for

BOD5 are basically technology based and based

on the pollution ratio and receiving treatment.

MR. ETTINGER: You don't look --

MR. KELLER: In addition for those

receiving streams may have a lower pollution

ratio. We do evaluate ammonia nitrogen as it

has the effects on the --

MR. ETTINGER: Do you ever go in and

calculate on a plant by plant basis what the

BOD5 or CBOD5 levels should be?

MR. KELLER: No.

MR. ETTINGER: You only computed to

the Board as an effluent standard described by

the Board?

MR. KELLER: Correct.

MR. ETTINGER: Are you aware of the

Streeter Philips(phonetic) model?

MR. KELLER: Yes. Could I go back

L.A. REPORTING (312) 419-9292

and correct? There have been a couple of

permits albeit a very few in just the exception

where the dissolved oxygen was taken into

account and receiving stream and we did lower

the standards to, again, another

technology-based type standard. So we had

lowered a couple of permits.

MR. ETTINGER: So when you mean

another technology based standard you went to

20 to 10 in that case?

MR. KELLER: Correct.

MR. ETTINGER: Have you -- I'll ask

the whole panel here, you said you did not in

general know the ratio as CBOD5 and BOD5 as to

any sewage treatment without -- strike that.

I'll start over.

Without knowing anything more about

the sewage treatment plan, you could not give

me the ratio of CBOD5 to BOD5 just from knowing

its a sewage treatment?

MR. KELLER: No.

MR. ETTINGER: And I assume that

would also hold true for an industrial

discharger that you would not know the ratio

L.A. REPORTING (312) 419-9292

for CBOD5 to BOD5?

MR. KELLER: No.

MR. ETTINGER: Have you any

information as to what the range could be of

CBOD, you know, the ratio between CBOD5 and

BOD5 other than what was put in your attachment

to your testimony?

MR. KELLER: No. As part of my

testimony, I did state this for those that

completely nitrified and those that do not

nitrify at all the CBOD value is very, very

close to that BOD value.

MR. ETTINGER: Most dischargers fall

somewhere in between?

MR. KELLER: A lot of them do

depending on the load at the time, a number of

things can surface, things like that.

MR. ETTINGER: Looking at your -- at

what is I think Attachments CC to your Exhibit

F, there's a reference in the second column,

this is biochemical oxygen demand and it's from

this standard methods book, Exhibit CC.

MR. KELLER: Okay.

MR. ETTINGER: Looking at the second

L.A. REPORTING (312) 419-9292

column, it says nitrogenous demand can be

estimated directly from hormonal nitrogen?

MR. KELLER: Correct.

MR. ETTINGER: Do you know how to do

that?

MR. KELLER: Yes.

MR. ETTINGER: How does it work

roughly?

MR. KELLER: Basically, you determine

the calibrates with what the ammonia nitrogen

concentration is and the amount of nitrogen

demand would be 4.6 times that concentration

for the complete nitrogenous demand.

MR. ETTINGER: Let's say I've got one

milligram per liter of ammonia, would I

multiply that times 4.6 in BOD?

MR. KELLER: It would be 4.6, like,

pounds of oxygen demand or whatever figure it

was, that would be oxygen demand.

MR. ETTINGER: In most Illinois

dischargers they have an ammonia discharge

limit that is one or above or some part of the

year, don't they?

MR. KELLER: Most do, yes.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: In the document that I

marked as Exhibit 5, which is the Board's

opinion on the third to last page we see a note

in the Board's opinion that indicates that in

this particular case, Decatur's effluent CBOD5

is approximately 61 percent of the BOD5.

MR. KELLER: Yes, okay.

MR. ETTINGER: Does that accord with

your understanding of something within the

range of Illinois dischargers?

MR. KELLER: I really haven't

evaluated anything to elect that. Decatur has

a high industrial compound in their waste water

which may influence this very much.

MR. ETTINGER: How does the Agency go

about setting ammonia limits for a discharger?

MR. KELLER: Well, we look at the

water quality standards for ammonia, we look at

PH and temperature of the receiving water

downstream of the discharge, we look at the

availability of mixing; and then we fall back

on whether or not the treatment plant has been

nitrifying or meeting a low level of ammonia in

the past; and we calculate ammonia permit limit

L.A. REPORTING (312) 419-9292

protective of that water quality standard for

the stream.

MR. ETTINGER: Now, is that ammonia

water quality limit based on a toxicity of

ammonia?

MR. KELLER: Well, yes. The standard

is based on ammonia toxicity to aquatic life.

MR. ETTINGER: Do you make any

separate calculations as to how much BOD load

the ammonia will add to the water?

MR. KELLER: No. The water quality

standard does not take into account anything

like that.

MR. ETTINGER: Are you familiar with

how the 30 limits were chosen by the Board.

MR. KELLER: Not exactly. That was

about three months before I started that

actually.

MR. ETTINGER: I brought copies, but

I could tell you it was originally picked by a

Board decision made on March 7, 1972, which for

some reason or another it's not on Lexis and

I'm not sure how I came up with this, but you

might want to look at that.

L.A. REPORTING (312) 419-9292

HEARING OFFICER TIPSORD: Excuse me,

Mr. Ettinger, could you give us the rulemaking

number as well?

MR. ETTINGER: Yes. It was a little

confusing because there was three different

rules, R70-80, R71-14 and R71-20 -- I'm sorry

R70-8.

HEARING OFFICER TIPSORD: Thank you.

MR. ETTINGER: Have you looked at the

technological capacities of sewage treatment

plants in Illinois?

MR. KELLER: Yes.

MR. ETTINGER: And you looked at the

cost?

MR. KELLER: We looked at the cost

only through the facility plant reviews where

engineers present that information for new

treatment plant expansions.

MR. ETTINGER: In general, do you

have any understanding as to how much it costs

to have a plant, say, produce CBOD level of 8

versus 10?

MR. KELLER: No. We never really

evaluated that.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: Do you know how much

it costs to go from 20 to 10?

MR. KELLER: From 20 to 10 would

basically require an additional unit of

filtration basically to try and physically

remove solids from the waste water and the

associated BOD.

Usually when you go from a 20 to a 10

effluent standards are in all cases basically.

There's also a low flow receiving stream and

you're also going to be nitrifying at that

facility with the discharge parts of the BOD.

MR. ETTINGER: I realize this varies

from plant to plant and varies over time, but

is there some rule of thumb you use in the

industry as to what the cost is?

MR. KELLER: Some of the recent small

sized plants from around a half million gallons

to one million gallons may cost and I would

have to really give you a range but it's

somewhere between 5 and $10 per gallon, I

believe. That's based on some prices we've

seen recently.

MR. ETTINGER: And you don't have any

L.A. REPORTING (312) 419-9292

information as to what the cost is of removing

CBOD on industrial facilities.

MR. KELLER: No. We've never been

involved with cost and industries like that.

It's more by them and there's no grant program

associated with those projects so ...

MS. LIU: Can I ask a clarifying

question?

MR. KELLER: Yes.

MS. LIU: You said 5 to $10 a gallon?

MR. KELLER: If you have a one main

gallon per day treatment plant, it may cost you

between 5 and 10 gallons -- $10 million rather.

And that's really a ball park number

depending on how much of the plant has to be

renovated and how much you can use at the

plant.

Recently, I have seen -- it cost

about $8 million for one main gallon per day

plant. And it was a brand new site so

everything was --

MR. TRISTANO: Is that a one-time

cost or --

MR. KELLER: That's the actual

L.A. REPORTING (312) 419-9292

construction cost. You also have your annual

operation maintenance cost and that plant

typically would be a 20 year design life.

MR. ETTINGER: Do you have any

information as to whether a plant that could

meet a 10 CBOD limit versus a 8 CBOD limit?

MR. KELLER: Typically, again,

depending on the actual load, a plant would

probably produce an eight part CBOD limit if

it's going to be versus 10.

The units in which you put out on the

field don't really refine that much. It goes

from 200 raw sewage to say 3 parts which is

equivalent to a secondary treatment.

Typically, most mechanical plants

will also produce a 20 and they'll produce a

30. And that's where your 10, 12 limits come

in or just the degree of magnitude.

MR. ETTINGER: If a plant already has

to nitrify because of ammonia toxicity could it

add much cost meaning a lower CBOD limit?

MR. KELLER: How low are you talking

about?

MR. ETTINGER: Let's say we have a

L.A. REPORTING (312) 419-9292

plant that had to nitrify and it qualifies for

a 20 CBOD not because of the pollution, but

because of either nitrify or ammonia, is it

likely to hit the 10 CBOD anyway?

MR. KELLER: No.

MR. ETTINGER: What extra equipment

would you need to hit the CBOD limit that you

would to remove a low ammonia?

MR. KELLER: You would need to remove

more solids and remove that associated BOD with

the solids.

MR. ETTINGER: I think I'm done for

today.

HEARING OFFICER TIPSORD: Would you

identify, please?

MR. DUBIO: Dennis Dubio from Joliet,

Illinois. My question is for Mr. Keller.

Al, a plant that has had a permeant

process reduced since 1986 that would be

correct to assume it has a CBOD limit in its

permit?

MR. KELLER: Yes.

HEARING OFFICER TIPSORD: Go ahead,

Mr. Ettinger.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: Is there anything in

this rule that requires that there be an

ammonia limit for you to use a CBOD limit as

opposed to BOD limit?

MR. KELLER: Not in this rulemaking,

no.

MR. ETTINGER: The wording of the

rule, I'm not sure I got the last one, is

interesting. It says compliance with the BOD

in numeric standard will be determined by the

analysis of the carbonation, (biochemical

oxygen demand), by that, do you mean to use 10

CBOD instead of 10 BOD.

MR. KELLER: We mean to use possibly

20 CBOD versus 20 BOD or 10 CBOD versus 10 BOD.

MR. ETTINGER: The wording is curious

in that it doesn't really set any sort of

conversion factor because it just seems to say

that you can substitute one for the other, but

that's the intention that you basically put a C

in front of the BOD?

MR. KELLER: Correct. It does also

recognize the last sentence, the Federal

Resister that we've passed in 1984, I believe,

L.A. REPORTING (312) 419-9292

as far as the definition of secondary

treatment.

MR. ETTINGER: Because if you went to

30 CBOD you violate the Federal law?

MR. KELLER: Correct.

MR. ETTINGER: That's all I have.

MR. RAO: I have a general question

regarding the economic impact of the proposed

regulations. In the statement of the Agency it

has indicated that the regular community to --

the impact on the regular community would be

minimal because the dischargers are already

complying with the proposed rules.

First, would you please clarify in

that statement you're referencing just to the

BETX standard or also referencing to the new

standard proposal for Nickel and Zinc?

MR. MOSHER: Well, anybody subjected

to the BETX water quality standards as

translated into impetus permit limits is

providing treatment.

Usually these are underground storage

tank, fuel tank, clean-up sites where the

ground water is being pumped to the surface,

L.A. REPORTING (312) 419-9292

treated and then discharged to the surface

water.

And the treatment methodologies used

now are adequate to meet the proposed

standards. As far as the Zinc and Nickel

standard goes, we, from our knowledge of metals

concentrations in effluents, we believe that

with the metals translator all the dischargers

that I'm aware of would meet the new Zinc and

Nickel dissolved water quality standards in the

receiving stream.

Cyanide, of course, we're raising the

standard so as far as economic impact there,

there could be a few cases positive for

dischargers in a way in economic impact.

So, again, generally changing total

metals to dissolve metals standards, there are

a few municipal dischargers in the state right

now that are having trouble with the copper

limits that we set based on the existing water

quality standard.

I know of four that have come to

light. We feel that the metals translator

procedure that would be allowable under this

L.A. REPORTING (312) 419-9292

new rule would benefit those dischargers that

they would now be shown to be meeting the

appropriate water quality standard in the

stream. And of course that's a positive

economic effect on those four dischargers.

MR. RAO: In reviewing the proposed

standards specifically Nickel and Zinc standard

that you proposed, based on the typical

hardness of 250 milligrams per liter the acute

standards for Nickel is 179 micrograms per

liter compared to 1000 micrograms per liter

which is the current standard.

So the difference -- the standard for

being reduced significantly. So are you saying

that most of the standards would be able to

meet the significantly lower standards without

upgrading their treatment plan?

MR. MOSHER: Yes, with the use of the

metals translator. Yes, I believe most of them

and I'm not aware of any that wouldn't so I'm

saying most of them would be able to meet the

new standard.

It is significantly lower. And,

again, remember that the Nickel and Zinc

L.A. REPORTING (312) 419-9292

100

standards came to us from the original Board

back in the early '70s before the science of

toxicity testing was really well established.

And if you go back to the record at

that time those values were established based

on the personal judgment of a few individuals.

And it wasn't much of a science back then.

MR. RAO: I have no problem with the

science or the basis of the standard. I just

wanted to get some information about how it

could impact the dischargers of complying with

the lower number.

MR. MOSHER: I'm certainly not aware

of any dischargers that I know would not be

able to meet these.

MR. RAO: I have a question for

Mr. Olsen. In deriving the numbers for BETX

compounds, in your calculations that you have

submitted in the exhibits, which are

attachments to your proposal, first you have to

use calculations based on Subpart E and Subpart

F procedures, and the final proposed numbers

were picked for -- some of them I think you

picked the calculations using Subpart F and for

L.A. REPORTING (312) 419-9292

101

some using Subpart E.

Can you explain what's the ratio the

Agency uses for using a specifically procedure?

MR. MOSHER: Well, when I calculate a

number I have to use Subpart F if it's a

general use water. If I do occasionally, I

don't think we've ever actually done it, but if

we did it for Lake Michigan, we would have to

use Subpart E.

But the Board can make a decision on

either one. So this is -- I guess I can say

we're getting a little work to do. But Subpart

E should be the better thing, but because of

time lag and so on we still have Subpart F.

You know, things have moved along a little bit

in the year since then. I would suggest that

we use Subpart E, but I think these are the

Board's rules so we have shown you the

calculations that are the suggestion.

MR. RAO: Because the actual values

that you calculated using Subpart E and Subpart

F, some of the number standards are higher than

the values that you calculated.

So are you saying it's up to the

L.A. REPORTING (312) 419-9292

102

Board to look at those numbers and pick what we

think is appropriate?

MR. MOSHER: Well, since these are

Board standards, they are not -- you know, they

are a little bit beyond what we do. You tell

us how to do things when we do them on a

case-by-case basis for permits and over the

years, but if you're going to publish

something, then it's your standards, so we're

showing you what the calculations are and what

our recommendations are, but there's really, as

far as we're concerned and the USEPA is

concerned, I guess there's no stringent

pressure on you to do it one way or the other

way as far as -- the legal status of those

rules are. We know what our legal status is,

but, you know, we don't know exactly what your

legal status is.

MR. RAO: For example, the General

Use for chronic criterion for toluene was

calculated to be 230 micrograms per liter using

Subpart F and 600 micrograms per liter using

Subpart E and the proposed standard is 600

micrograms per liter.

L.A. REPORTING (312) 419-9292

103

MR. OLSEN: Yes.

MR. RAO: So in this particular case,

are you saying the Board should look at both

the numbers and then decide which one to use?

MR. OLSEN: Yes.

MR. MOSHER: I think what we mean to

say in this proposal, we come out and propose

certain numbers. Those numbers in our

professional judgment are the numbers that we

would have the Board adopt.

The thing that Clark is trying to say

is when we use the existing Board regulations

we are held to Subpart F if it's a General Use

water and we derive on water quality criterion.

We have no choice. Those are your regulations.

But when we're proposing something to you,

we're not bound by that. We do the best method

that's available to us whether it's Subpart E,

Subpart F or because we've heard from USEPA

yesterday that they decided they found a new

scientific fact and we can take that and

propose it to you.

MR. RAO: If that's the case, would

it be possible for the Agency to take a look at

L.A. REPORTING (312) 419-9292

104

those numbers and give us a little bit more

scientific explanation as to why you picked one

number instead of the other, you know, just

looking at the number for toluene, we had a

Subpart E number, which is 230 micrograms per

liter which is significantly less than the

Subpart -- I'm sorry, the Subpart F number

which is 230 micrograms per liter is

significantly less than what you proposed as

the 600 micrograms per liter.

So if you can tell us what methods

you used to pick this higher number it would be

helpful to the Board to look at those.

MR. OLSEN: Could I comment just a

little bit more? I would suggest that what

we're doing is using arbitrary procedures. I

mean, in the end they have to be arbitrary, but

they are loosely tied -- they are tied in

general to what we think is safe in the water,

but we cannot say whether one is safer than the

other.

It's just that in the development of

Subpart E, it was felt that this seems to be a

little bit more reasonable and that's based on

L.A. REPORTING (312) 419-9292

105

the Great Lakes Initiative.

And I don't think there's anything

more than that because it's very hard to say

whether something is safe in the environment

because you're usually dealing with orders of

magnitude rather than a factor of several, two

or three fold. That's the way biology is.

We just cannot say whether something

is completely safe in the environment because

we cannot in fact even measure what safety is

in the environment.

MR. SOFAT: I think we will get back

to the Board on that question.

MR. RAO: I have a similar question

regarding the proposed Lake Michigan standards

for toluene and xylene. Both the proposed

standards for Lake Michigan are higher than the

General Use standards.

MR. OLSEN: Well --

MR. RAO: Let me look at the numbers

here. The proposed standards for toluene for

Lake Michigan is 610, chronic standard and the

proposed standards for toluene for General Use

is 600 micrograms.

L.A. REPORTING (312) 419-9292

106

MR. OLSEN: Could I have the numbers

in front of me so I don't have to try to

remember them?

MR. RAO: Yes.

MR. OLSEN: Excuse me, again, we were

comparing chronic numbers?

MR. RAO: Both acute and chronic.

MR. OLSEN: Okay. I had some charts

that had these all nicely laid out, but

unfortunately they are not right in front of me

at this moment.

HEARING OFFICER TIPSORD: Mr. Olsen,

maybe it would help if we just read this into

the record and when you have a chance to look

at this you can get back to us at the March

hearing.

MR. OLSEN: We could do that for the

March hearing.

MR. RAO: So you can take a look at

the proposed numbers for Lake Michigan --

MR. OLSEN: What I would like to do

is say that I admit that these numbers, you

know, bounce around, fluctuate around because

you're using these procedures that tell you in

L.A. REPORTING (312) 419-9292

107

a cookbook sort of way, well, you do this and

then you do this and then you do this.

And they just come out differently

when you do the different procedures. We would

probably suggest that the Board adopt Subpart E

just to cross the Board, but that's a long

process as you know to go through this Board

proceeding. So we're just suggesting that

probably Subpart E is the best way for you to

go. I can't do that down state, but you can do

that if you'd like because --

MR. RAO: Actually --

MR. OLSEN: -- that's your

privilege.

MR. RAO: -- my question regarding

those proposed standards were my understanding

was Lake Michigan standards were more stringent

than the General Use standards and since we

have higher numbers for Lake Michigan, I wanted

to know --

MR. OLSEN: Well, they should be, but

the trouble is the way you pick and choose the

data when you go through these procedures you

can come out with something that's different.

L.A. REPORTING (312) 419-9292

108

That's the problem.

MR. MOSHER: I think what we'll try

to do is come up with a one-page table and show

each proposed standard and what its origin was

and then comment to why we went that route and

keep it all on one page.

We did try to do that in Attachment

F. It's, of course, very lengthy and complex,

but we'll produce that one-page table for you.

HEARING OFFICER TIPSORD: Go ahead.

MR. POLLS: My name is Irwin Polls.

I have a follow-up on I guess it's Exhibit F

specifically under the derivation of the

ethylbenzene. It says in here regarding the

Illinois method that was used you used Tier II

rather than Tier I. This is for Mr. Olsen, is

that -- the reason was that you didn't have

enough species to use Tier I.

MR. OLSEN: That is correct. The

data base for ethylbenzene is rather meeker

compared to the other chemicals.

MR. POLLS: Now, for the chronic

standard, it states here that you use Tier III.

Can you explain the difference between Tier III

L.A. REPORTING (312) 419-9292

109

and Tier II?

MR. OLSEN: That's the default that

was under Subpart -- using Subpart F. That was

the default under Subpart F you can divide by

25. Actually, it gets more complicated.

MR. POLLS: So the Tier III, the

reason why you're using Tier III is because you

did not have enough data to use Tier I or Tier

II?

MR. OLSEN: That's correct. If you

have an acute to chronic ratio that gives a

good idea of some relationship between those

two, but we don't even have that for

ethylbenzene under the way the rules are

written so we use the default.

MR. POLLS: So actually the acute to

the chronic ratio was not for ethylbenzene?

MR. OLSEN: It's a default acute to

chronic ratio I should say.

MR. POLLS: Which is called Tier III?

MR. OLSEN: Yes.

MR. POLLS: Now, is that also used

for the chronic standard for xylene, it says

here --

L.A. REPORTING (312) 419-9292

110

MR. OLSEN: I'm not sure. I couldn't

quite hear you. There's a little noise

outside.

MR. POLLS: Under total xylene, is

this the default method the same default method

that was used for calculating the chronic for

ethylbenzene?

MR. OLSEN: Yeah -- no. We could

have used the Subpart F default, but we went

ahead and just used the Subpart E. So, again,

there's a matter of choice, but what we just

presented here is a Subpart E because it seemed

very reasonable. It was a -- it looked like a

typical kind of ACA.

MR. POLLS: How can you explain in

the summary in Exhibit F under total xylene, it

says the chronic data says it's an inadequate

calculation criteria for General Use except by

the default method.

So what you're saying you did not use

the default method in xylene?

MR. OLSEN: There were ACRs, but

there wasn't enough for a Tier I, which is very

seldom that you find that.

L.A. REPORTING (312) 419-9292

111

MR. RAO: The last question, this is

regarding the conversion factor for cadmium

under Section 302.504.

I think there is a typographical

error in the conversion factor if you can take

a look at it and make sure you have the right

numbers?

MR. MOSHER: Okay. We'll do that.

MR. RAO: Thank you.

HEARING OFFICER TIPSORD: Are there

any further questions for the Agency?

MR. ETTINGER: We're looking for

another typo.

HEARING OFFICER TIPSORD: Can we go

off the record for a second?

(A short break in proceedings.)

Back on.

MR. ETTINGER: 302.575 B, we think

there's an I missing at the last word after

tropic level.

MR. OLSEN: Yes, that's correct.

HEARING OFFICER TIPSORD: Are there

any other questions?

MR. POLLS: For the record, when you

L.A. REPORTING (312) 419-9292

112

calculated the acute and chronic standards for

BETX, the only data that was used was for

warm-water species, all cold-water species were

removed in the database when you were looking

at General Use?

MR. OLSEN: Yes.

MR. POLLS: Thank you.

HEARING OFFICER TIPSORD: Anything

further?

Okay. There's a second hearing

scheduled for March 6, 2002, in Springfield,

Illinois at Room 403, that's the Board's office

in Springfield in our hearing room there.

The purpose of the hearing will be to

continue to offer additional comments and

testimony and we will again probably start with

Agency follow-up testimony before proceeding

with the pre-filed testimony at that time.

Testimony should be pre-filed by

February 20th and served on the service list at

that time, and I will allow the mailbox rule to

apply, so simply just place them in the mail on

February 20th.

Are there any other questions?

L.A. REPORTING (312) 419-9292

113

MR. ETTINGER: We had a few questions

about these Tier things, should we do those in

writing?

HEARING OFFICER TIPSORD: Why don't

you do those in writing on February 20th as

well and then the Agency can respond at the

March 6th hearing.

If anyone else has technical

questions or additional questions for the

Agency, if they would like to submit them in

writing that they would do it by the February

20th date.

I'm sure it will be very helpful to

the Agency to prepare for the March 6th

hearing.

I want to thank you all for your

attention and your cooperation. This has been

a good hearing. Thank you very much. We are

adjourned.

(Whereupon, these were all the

proceedings had at this time.)

L.A. REPORTING (312) 419-9292

114

STATE OF ILLINOIS )

) SS:

COUNTY OF C O O K )

I FRANCINE BUONAVOLANTO being first

duly sworn,on oath says that she is a court

reporter doing business in the City of Chicago;

and that she reported in shorthand the

proceedings of said hearing, and that the

foregoing is a true and correct transcript of

her shorthand notes so taken as aforesaid, and

contains the proceedings given at said hearing.

______________________________

Certified Shorthand Reporter

SUBSCRIBED AND SWORN TO

before me this______day

of________________, 2002.

_______________________

Notary Public

L.A. REPORTING (312) 419-9292