Microsoft Word - R04-25 062904 transcript

1 BEFORE THE ILLINOIS POLLUTION CONTROL BOARD OF THE

STATE OF ILLINOIS

4 IN THE MATTER OF:

)

5 PROPOSED AMENDMENTS TO

) R04-25

DISSOLVED OXYGEN STANDARD

)

6 35 ILL. ADM. CODE 302.206

)

TRANSCRIPT OF PROCEEDINGS held in the

11 hearing of the above-entitled matter, taken

12 stenographically by Maria E. Shockey, CSR, before

13 Richard R. McGill, Jr., Hearing Officer, at the

14 James R. Thompson Center, Room 11-512, Chicago,

15 Illinois, on the 29th day of June, A.D., 2004,

16 scheduled to commencing at 10:00 a.m.

L.A. REPORTING (312) 419-9292

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

ILLINOIS POLLUTION CONTROL BOARD

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(312) 814-6983

BY: MR. RICHARD R. McGILL, Hearing Officer

MR. ANAND RAO

MS. ANDREA S. MOORE

MS. ALISA LIU

MR. THOMAS E. JOHNSON

GARDNER, CARTON & DOUGLAS,

191 North Wacker Drive

Suite 3700

Chicago, Illinois 60606-1698

(312) 569-1441

BY: MR. ROY M. HARSCH and

MS. SHEILA H. DEELY

Appeared on behalf of the Illinois

Association of Wastewater Agencies;

ENVIRONMENTAL LAW & POLICY CENTER,

35 East Wacker Drive

Suite 1300

Chicago, Illinois 60601

(312) 795-3707

BY: MR. ALBERT ETTINGER

Appeared on behalf of the Sierra Club,

Prairie Rivers Network.

22 PANEL MEMBERS:

23 MR. JAMES E. GARVEY

MR. DENNIS STREICHER

24 MR. JOHN M. CALLAHAN

L.A. REPORTING (312) 419-9292

HEARING OFFICER McGILL: Good morning.

2 My name is Richard McGill. I'm the hearing officer

3 in this rulemaking, R04-25. We're going on the

4 record briefly now just to note that the hearing

5 room we have here is not large enough to accommodate

6 the turnout we've today and so we're going to

7 briefly recess and move to another location just

8 outside of this hearing room that should accommodate

9 the crowd we've got here today. So with that, we'll

10 recess for five or ten minutes and go off the

11 record. Thank you.

(Whereupon, a short recess

was had.)

HEARING OFFICER McGILL: Good morning.

15 Welcome to the Illinois Pollution Control Board. We

16 went on the record at 10:00 and recessed so that we

17 could set up in a hearing room that could

18 accommodate the large turnout we've had today. So

19 it's about 10:22 and we are now back in session,

20 and, again, I just wanted to welcome you.

My name is Richard McGill. I'm

22 the hearing officer in this rulemaking docketed as

23 R04-25. The rulemaking proceeding is entitled

24 Proposed Amendments to Dissolved Oxygen Standard,

L.A. REPORTING (312) 419-9292

1 35 Illinois Administrative Code, Section 302.206.

The Board received this rulemaking

3 proposal on April 19, 2004 from the Illinois

4 Association of Wastewater Agencies or IAWA. On

5 May 6th, the Board accepted the rulemaking proposal

6 for hearing. IAWA seeks to amend the Board's rules

7 establishing general use of water quality standards

8 for dissolved oxygen.

Today is the first hearing. We

10 have a second hearing scheduled for August 12, 2004

11 in Springfield. Also present today on behalf of the

12 Board, to my far left is Board member Tom Johnson.

13 To my immediate left, Board member Andrea Moore,

14 she's the lead Board member on this rulemaking; and

15 to my right, the two members of our technical unit,

16 to my far right, Alisa Liu and to my immediate

17 right, the head of the technical unit, Anand Rao.

I'd also like to welcome members

19 of the general public and representatives of the

20 many number of organizations that we have here

21 today. I see representatives from the Governor's

22 office, Illinois Environmental Protection Agency,

23 Prairie Rivers Network, Sierra Club, Farm Bureau --

24 great turnout today -- USEPA. We really appreciate

L.A. REPORTING (312) 419-9292

1 everyone's interest in this rulemaking proceeding.

2 I'm sure I've left out some organizations, but

3 you're all welcome.

Today's proceeding is governed by

5 the Board's procedural rules. All information that

6 is relevant and not repetitious or privileged will

7 be admitted into the record. We'll begin today's

8 proceeding with the IAWA's testimony followed by any

9 questions the Board or members of the audience may

10 have for the IAWA's witnesses.

Please note that any questions

12 posed by the Board are designed solely to help

13 develop a complete record for the Board's decision

14 and they do not reflect any bias for or against the

15 proposal. After the questioning period for the

16 IAWA, anyone else may testify on the proposal, time

17 permitting. Like all witnesses who testify today,

18 you'll be sworn in and you may be asked questions

19 about your testimony.

For the court reporter, I would

21 ask that you please speak up, especially in this

22 room. We've got fans going. It's kind of a long

23 room and it's going to be hard to hear, so I would

24 ask all of the witnesses or people asking questions

L.A. REPORTING (312) 419-9292

1 to speak up. And also, try not to talk over one

2 another so we can get a clear transcript.

Are there any questions about the

4 procedures we'll follow today?

MR. FISCHER: Will a transcript be

6 made available to the participants? And my name is

7 Michael Fischer, F-I-S-C-H-E-R. I'm the policy

8 advisor for the Lieutenant Governor,

9 Pat Quinn.

HEARING OFFICER McGILL: Yeah. The

11 transcript of today's proceedings will be available

12 to the public. It will be posted on our web site.

13 How quickly that happens is going to depend in part

14 on the duration of our hearing today. I'm

15 anticipating that it will be a pretty full day.

My best guess would be probably in

17 ten days or so we should receive that transcript and

18 be able to post it on our web site and it will be

19 available in our Clerk's office. But at the end of

20 the day, our court reporter will probably have a

21 more precise idea of how long it will take to turn

22 this around.

MR. FISCHER: Thank you, Richard.

HEARING OFFICER McGILL: Sure.

L.A. REPORTING (312) 419-9292

One other preliminary item: The

2 IAWA moved to replace the written testimony of

3 Dr. James E. Garvey due to a formatting error in the

4 prefiled testimony. Having received no objection to

5 that motion, I grant the IAWA's motion.

With that, would the court

7 reporter go ahead and swear in the IAWA's witnesses

8 and the IAWA's attorney collectively at this time?

THE REPORTER: Sure.

(Witnesses sworn.)

HEARING OFFICER McGILL: Thank you.

At this point, I'll turn it over

13 to the IAWA's attorney, Roy Harsch, to begin the

14 presentation on behalf of the rulemaking proponent.

MR. HARSCH: Good morning. My name is

16 Roy Harsch. I'm here today with Sheila Deely from

17 my firm. We represent the Illinois Association of

18 Wastewater Agencies. We would like to thank the

19 Pollution Control Board for timely accepting the

20 rule petition the IAWA has filed.

We will have three witnesses

22 today, Dennis Streicher, John Callahan, and

23 Jim Garvey. We will also have six exhibits. They

24 are the prefiled exhibits that we have filed with

L.A. REPORTING (312) 419-9292

1 the Pollution Control Board previously. We have

2 provided the hearing officer with marked copies.

The first exhibit is entitled An

4 Assessment of National and Illinois Dissolved Oxygen

5 Water Quality Criteria, Dr. James E. Garvey and

6 Dr. Matt R. Whiles of Southern Illinois University.

7 That was filed with the original Board rulemaking

8 proposal.

Exhibit No. 2 is the United States

10 Environmental Protection Agency's National Criteria

11 Document, NCD, for dissolved oxygen from 1986. The

12 third exhibit is the resume of Dennis Streicher.

13 The fourth exhibit is copies of letters that

14 Mr. Streicher has sent to various organizations

15 concerning the proposed rulemaking.

Exhibit No. 5 is the resume of

17 Dr. Garvey, and No. 6 is the resume of Dr. Matt

18 Whiles, who's the co-author of Exhibit No. 1. We

19 have previously marked them and provided copies to

20 the court reporter. And I would move their

21 acceptance at this time if there's no objection.

HEARING OFFICER McGILL: Okay. So at

23 this point, we have a motion to enter six hearing

24 exhibits. Again, they would be numbered 1 through

L.A. REPORTING (312) 419-9292

1 6, as Mr. Harsch has indicated. The first one is An

2 Assessment of National and Illinois Dissolved Oxygen

3 Water Quality Criteria by Dr. James Garvey and

4 Dr. Matt Whiles of Southern Illinois University. Is

5 there any objection to entering that into the record

6 as a hearing exhibit?

(No response.)

Seeing none, that will be Hearing

9 Exhibit No. 1. The second document is a USEPA

10 National Criteria Document for Dissolved Oxygen.

11 Any objection to entering that as a hearing exhibit?

(No response.)

Seeing none, that will be Hearing

14 Exhibit No. 2. Hearing Exhibit No. 3 is a resume of

15 Dennis Streicher.

(No response.)

Seeing no objection, that's entered as

18 Hearing Exhibit No. 3. What would be Group Hearing

19 Exhibit No. 4 would be copies of letters from

20 Dennis Streicher to various organizations concerning

21 the proposed rulemaking. Is there any objection?

(No response.)

Seeing none, that will be Group

24 Hearing Exhibit No. 4. And the last two hearing

L.A. REPORTING (312) 419-9292

1 exhibits, Hearing Exhibit No. 5, a resume of

2 Dr. Garvey, seeing no objection, I'll enter that as

3 Hearing Exhibit No. 5, and then Hearing Exhibit

4 No. 6, the resume of Dr. Whiles, seeing no objection

5 to entering that into the record as a hearing

6 exhibit, that will be Hearing Exhibit No. 6.

MR. HARSCH: Thank you.

The IAWA, as will be testified to

9 today by Mr. Streicher and Mr. Callahan, recognize

10 the importance of the dissolved oxygen water quality

11 standard and the need for the revision of that water

12 quality standard and started the process that gave

13 rise to the technical assessment that was prepared

14 by IAWA's consultants, which is Exhibit 1 in this

15 proceeding.

Under the Clean Water Act,

17 Section 33 U.S., Code 1313(c): States are required

18 to revise water quality standards within three years

19 of the adoption of national criteria by USEPA. In

20 1984, USEPA formally adopted a revised dissolved

21 oxygen water quality criteria, and to date, the

22 Illinois Environmental Protection Agency or

23 Pollution Control Board or any other party does not

24 come forward with any revision to the Illinois

L.A. REPORTING (312) 419-9292

1 standard.

It is for that reason and the

3 belief that the standard is in fact one that's on

4 the books not supported by scientific evidence that

5 IAWA has started this proceeding. This proposal is

6 intended to be a start. We look forward to the

7 comments and addressing the comments that we've

8 received to date and will continue to welcome any

9 comments or questions on the record or after the

10 close of today's hearing prior to the next hearing

11 and will attempt to respond to those comments and

12 questions as we move forward.

At this point, I would like to

14 present the first witness, Dennis Streicher.

HEARING OFFICER McGILL: Okay.

MR. HARSCH: Mr. Streicher, would you

17 state your name for the record?

MR. STREICHER: My name is Dennis

19 Streicher.

MR. HARSCH: And where are you

21 currently employed?

MR. STREICHER: I am employed by the

23 City of Elmhurst as director of water and

24 wastewater.

L.A. REPORTING (312) 419-9292

MR. HARSCH: Is Exhibit No. 3 a true

2 and accurate copy of your resume?

MR. STREICHER: Yes.

MR. HARSCH: And have you prepared

5 written testimony for today's hearing?

MR. STREICHER: I have.

MR. HARSCH: At this point, I would

8 like the witness to please read that prefiled

9 testimony.

HEARING OFFICER McGILL: Go ahead.

MR. STREICHER: Thank you. My name is

12 Dennis Streicher. I'm director of water and

13 wastewater with the City of Elmhurst, Illinois.

14 I've been employed by the City of Elmhurst at the

15 wastewater treatment plant since 1972. I began my

16 career in Elmhurst as a chemist, graduated with a

17 biology degree.

I worked in the lab for

19 approximately 15 years and was promoted to plant

20 superintendent, assistant director of public works,

21 then to director of a newly created department of

22 water and wastewater. My responsibilities include,

23 in addition to the operation of the wastewater

24 treatment plant, operation of the public water

L.A. REPORTING (312) 419-9292

1 supply and of all storm and sanitary pumping

2 utilities in the city.

I hold an Illinois EPA Class 1

4 Operators license and an Illinois EPA Class A

5 Potable Water Operators license. A copy of my

6 resume, as Roy said, is attached. I come before you

7 today, however, representing the Illinois

8 Association of Wastewater Agencies as a committee

9 chair for dissolved oxygen standards in Illinois.

10 I'm also the current vice president of IAWA. The

11 IAWA is a professional association representing the

12 major wastewater treatment plants in the state of

13 Illinois.

We have over 100 members and

15 affiliate members, which include approximately

16 55 districts and municipalities throughout the

17 state. These agencies operate dozens of publicly

18 owned treatment works. In addition to these POTWs,

19 water reclamation districts and municipalities, the

20 largest Illinois private wastewater treatment

21 utility which operates 12 plants is also a member.

The representatives of these

23 organizations are public officials and include both

24 elected and appointed trustees of districts and

L.A. REPORTING (312) 419-9292

1 appointed officials at municipalities throughout the

2 state. Our constituents are the citizens and

3 taxpayers of Illinois and are the same constituents

4 as any other state or public agency.

My goal today is not to present

6 the technical aspects of the proposed rule change;

7 Dr. Garvey is the expert in that area. My hope is

8 to present the IAWA perspective on the existing

9 dissolved oxygen regulations in Illinois and why we

10 feel it's time to update those standards.

The managers of the POTWs in

12 Illinois have two interests in mind: One is the

13 integrity of the environment in which they work and

14 the second is to responsibly represent their

15 constituents and charge reasonable rates for our

16 service. Our jobs as managers of the state's POTWs

17 are the real application of the water quality

18 standards as promulgated in Illinois to the

19 operation of sometimes large but always complex

20 water treatment facilities.

These POTWs have an excellent

22 record of producing treated effluent in conformance

23 with applicable NPDES permit limitations due in

24 large part to the investment of public dollars to

L.A. REPORTING (312) 419-9292

1 construct and upgrade the facilities and the

2 experience and dedication of those that operate and

3 maintain the plants.

This proposed rulemaking is

5 consistent with IAWA's purpose and past practice to

6 ensure that the standards by which it operates are

7 based on sound science and to take action to update

8 standards where scientific information supports such

9 a change.

IAWA has engaged the highest

11 qualified experts consistent with its purpose and

12 has performed a variety of assessments that have

13 been used by the Illinois EPA and the Board to

14 assess Illinois standards governing the discharges

15 of its members.

IAWA proposed the rulemaking that

17 resulted in revision of certain water quality

18 standards governing ammonia nitrogen in R02-19, and

19 the Board adopted a revised rule in 2002. IAWA had

20 participated in a prior rulemaking brought by the

21 Illinois EPA to revise the ammonia regulations.

During the pendency of that

23 rulemaking, USEPA revised the National Criteria

24 Document for ammonia. After discussing this

L.A. REPORTING (312) 419-9292

1 revision with the representatives of the Illinois

2 EPA, it became apparent that the Illinois EPA did

3 not have the interest or resources to initiate

4 rulemaking to again revise the ammonia regulations.

Because of the impact that the

6 recently adopted ammonia regulations had on

7 wastewater treatment plants and because the

8 regulations were in fact based upon outdated

9 science, IAWA initiated and saw to completion the

10 rulemaking in R02-19 and ultimately the accompanying

11 Illinois EPA implementation regulations to ensure

12 that Illinois' ammonia effluent limits were

13 consistent with USEPA's National Criteria Document

14 and based upon sound, current science.

The managers and officials who

16 operate wastewater treatment plants and who needed

17 to invest in upgrades for their facilities were able

18 to make the case to their respective district boards

19 and city councils for authorization for the

20 necessary dollars to meet an appropriate and

21 justifiable ammonia standard.

IAWA is committed to following the

23 same course of action as it did in the ammonia rules

24 whenever it is apparent that effluent limits and

L.A. REPORTING (312) 419-9292

1 water quality standards that have a significant

2 impact on POTWs are in need of revision, and the

3 Illinois EPA does not have the resources or the

4 inclination to initiate the appropriate evaluation

5 and ultimate regulatory proceedings. This dissolved

6 oxygen rulemaking is IAWA's second such effort.

Various IAWA members were involved

8 in a series of discussions with representatives of

9 the Illinois EPA and other regulators, many of whom

10 had publicly stated that the existing Illinois

11 dissolved oxygen water quality standard found at

12 35 Illinois Administrative Code, Section 203 was not

13 based on sound science, was inconsistent with

14 USEPA's National Criteria Document and was too

15 stringent.

At the same time, IAWA was aware

17 that many water bodies throughout Illinois were not

18 in compliance with the existing dissolved oxygen

19 water quality standard or would not be found to be

20 in compliance if dissolved oxygen measurements were

21 taken early in the morning due to the naturally

22 occurring diurnal dissolved oxygen fluctuation

23 cycle. IAWA decided to undertake a scientific

24 assessment of the dissolved oxygen standard almost

L.A. REPORTING (312) 419-9292

1 three years ago.

In 2002, IAWA engaged Dr. James

3 Garvey and Dr. Matt Whiles, who concluded that the

4 Illinois standard was too rigid and not consistent

5 with the USEPA's National Criteria Document for

6 dissolved oxygen. Dr. Garvey and Dr. Whiles have

7 done an excellent job in putting together a review

8 of data that has been generated since the 1980s,

9 have applied their knowledge and skills and training

10 to their understanding of all of the data generated

11 since that time, and have made recommendations that

12 the IAWA feels are reasonable and accurate.

Because revision of the dissolved

14 oxygen standard was not a priority of Illinois EPA,

15 the IAWA elected to itself bring this petition to

16 the Illinois Pollution Control Board. The IAWA is

17 very concerned that the existing dissolved oxygen

18 standard is triggering other legal requirements that

19 are not warranted by scientific information.

The Illinois EPA is currently

21 insisting on the imposition of a dissolved oxygen

22 water quality effluent limitation in NPDES permits

23 of a six-milligram per liter standard to be met

24 continuously. It is IAWA's understanding that this

L.A. REPORTING (312) 419-9292

1 effluent limitation is being placed in NPDES permits

2 to ensure that the existing water quality standard

3 is not violated.

In instances where POTWs are

5 unable to comply with this limitation, the Illinois

6 EPA has granted construction schedules requiring

7 investment of public dollars to meet it. Illinois

8 EPA is required by Section 305(b) of the Clean Water

9 Act to assess the water quality of Illinois waters

10 and prepare a report commonly known as the 305(b)

11 Report.

Based on this report, Illinois EPA

13 is additionally required by Section 303(d) of the

14 Clean Water Act to develop a list of impaired waters

15 in Illinois commonly known as the 303(d) list. The

16 draft 2004 303(d) list of impaired stream lists over

17 300 stream segments in Illinois as impaired for

18 dissolved oxygen.

The 305(b) and 303(d) reports are

20 then used to determine the waters and parameters for

21 which total maximum daily loads or TMDLs will be

22 established, establishing load limits for

23 dischargers to each listed waterway. All of these

24 requirements adhere to the current standards even if

L.A. REPORTING (312) 419-9292

1 those standards are not scientifically based as we

2 believe to be the case with the Illinois dissolved

3 oxygen standard.

This can only result in

5 unrealistic and unwarranted permit limits requiring

6 expensive capital improvements and modifications to

7 wastewater treatment facilities at taxpayer expense

8 or unjustified reasons for plant expansions.

In my position at the City of

10 Elmhurst, I, together with other IAWA member

11 agencies, have watched and participated with great

12 interest in the Illinois EPA's efforts to establish

13 TMDLs for the West Branch of the DuPage River, the

14 East Branch of the DuPage River, and Salt Creek

15 basins. These three TMDLs mark the first effort by

16 the Illinois EPA to develop TMDLs in urban areas

17 with significant potential impact from POTWs,

18 combined sewer overflows, storm sewer discharges,

19 and other urban impacts.

In the initial drafts, the TMDLs

21 for the East Branch of the DuPage and Salt Creek

22 would have required limitations on CBOD and ammonia

23 because these streams were listed as impaired under

24 the existing standard for dissolved oxygen. The

L.A. REPORTING (312) 419-9292

1 potential for the TMDLs to be finalized with an

2 ultimate requirement for more restrictive CBOD and

3 ammonia limitations in existing NPDES permits could

4 have a significant impact on POTW discharges to

5 those basins.

Either expensive capital

7 investment would be required with increased

8 operational expenses or a loss in the existing

9 treatment plant capacity that has been built to

10 service future growth may be required. Additional

11 efforts were discussed as well, including stream

12 re-aeration and dam removal as additional potential

13 means for meeting the existing dissolved oxygen

14 water quality standard.

The IAWA and I believe that these

16 consequences of failure to meet the standard should

17 only result if there is an actual environment

18 problem applying a scientifically sound dissolved

19 oxygen water quality limitation. Let me illustrate

20 with a description of what is happening today in the

21 Salt Creek basin. The plant that I manage

22 discharges to Salt Creek in DuPage County.

As I said, the Illinois EPA has or

24 is about to submit a completed TMDL on Salt Creek to

L.A. REPORTING (312) 419-9292

1 USEPA. That TMDL has found Salt Creek to be

2 impaired for dissolved oxygen and had recommended

3 that significant additional effluent limits on CBOD

4 and ammonia be imposed on POTWs in the watershed,

5 the TMDL estimated costs for those improvements to

6 be about $18 million. These are costs that the

7 POTWs will bear alone.

At this time, stakeholders in the

9 basin, and I'm one of them, are deeply involved in

10 an effort to form a watershed committee. One of the

11 goals of the committee will be to attempt to develop

12 more meaningful data, including biotic data, to

13 further refine the TMDL study and hopefully mitigate

14 the future costs. There is no guarantee that will

15 be successful. The cost of this effort in time and

16 dollars, however, certainly will be significant.

The IAWA believes that given the

18 large number of water body and stream segments that

19 are listed as non-compliant with the current

20 dissolved oxygen standard or impaired for dissolved

21 oxygen reasons, Illinois should ensure that the

22 existing dissolved oxygen water quality standard is

23 an appropriate standard based upon sound science and

24 consistent with USEPA's National Criteria Document.

L.A. REPORTING (312) 419-9292

The costs now being incurred on

2 the Salt Creek and East Branch of the DuPage River

3 basin could be multiplied by each of those

4 additional basins identified as impaired for

5 dissolved oxygen using the existing inappropriate

6 standard.

IAWA believes this proposed

8 dissolved oxygen rulemaking is consistent with

9 Section 303(c) of the Clean Water Act, 33 U.S.C.

10 1313(c), which requires the states' review and

11 re-evaluate existing water quality standards within

12 three years of adoption of revised national criteria

13 by USEPA.

To date, despite the

15 acknowledgment by many within the Illinois EPA that

16 the existing dissolved oxygen water quality standard

17 is out of date and inconsistent with the NCD,

18 Illinois has not undertaken such a review.

Dr. Garvey points out in "An

20 Assessment of National and Illinois Dissolved Oxygen

21 Water Quality Criteria" that dissolved oxygen

22 concentrations fluctuate in natural systems.

23 Dissolved oxygen has a diel fluctuation, it has a

24 seasonal fluctuation, and concentrations could be

L.A. REPORTING (312) 419-9292

1 different through the water column. Animals living

2 in those conditions have evolved a tolerance for

3 those fluctuations.

The current regulation does not

5 take into account seasonal fluctuations. My own

6 career began at the same time as the development of

7 many of today's water quality regulations. I have

8 been able to observe that development from the

9 inception of the Clean Water Act to today.

I observed the infant Illinois EPA

11 and the Illinois Pollution Control Board struggling

12 with the proposal and adoption of water quality

13 standards and were faced with the almost

14 insurmountable demands to develop them quickly. At

15 that time, there was a rash of new standards being

16 developed with the aim of quickly attaining water

17 quality goals. Many of the standards are still in

18 effect today.

The dissolved oxygen standard used

20 in Illinois was promulgated during that initial

21 period almost three decades ago and has not been

22 revised since. When the work of Dr. Garvey and

23 Dr. Whiles and the proposed regulation were

24 completed, I was excited to volunteer to represent

L.A. REPORTING (312) 419-9292

1 the IAWA in an effort to see this study through

2 rulemaking of the Pollution Control Board and to be

3 a part of the process to develop realistic dissolved

4 oxygen standards in Illinois.

As part of this effort, I

6 contacted and shared the report with a number of

7 other groups within the state to look for their

8 support and for their comments on the study. I sent

9 letters to the Illinois Department of Agriculture,

10 the Illinois Farm Bureau, the Illinois Environmental

11 Regulatory Group, and the Illinois State Water

12 Survey.

I personally spoke to members of

14 all of those agencies that I mentioned and asked

15 them for their thoughts and if they had concerns, to

16 let me know and to follow-up on my letters sent to

17 them. Those letters are submitted as IAWA's

18 Exhibit 4. In every single instance, the persons I

19 spoke to expressed support and a hope that the Board

20 would adopt this rule.

I also copied many of the citizen

22 advocacy groups such as the Sierra Club, Prairie

23 Rivers Network, The Salt Creek Watershed Alliance,

24 the DuPage Conservation Foundation, and

L.A. REPORTING (312) 419-9292

1 Environmental Law and Policy Center. Our goal was

2 to offer those folks an opportunity to comment as

3 well. The goal of IAWA was to be as inclusive as

4 possible.

In summary, it is commonly known

6 throughout the state that the current dissolved

7 oxygen regulation is not scientifically justifiable.

8 Because of its importance in the regulatory regime

9 in Illinois, an accurate and realistic dissolved

10 oxygen standard is critical. IAWA has spent

11 considerable time and incurred a significant expense

12 to ensure that it has the most recent and strongest

13 scientific data to support its rulemaking.

I urge the Board to proceed with

15 the rulemaking as proposed by the IAWA. Thank you

16 for the opportunity to address this issue before the

17 Board.

HEARING OFFICER McGILL: Thank you.

MR. HARSCH: I just have just a couple

20 of follow-up questions if I might.

HEARING OFFICER McGILL: Go ahead.

MR. HARSCH: At the time -- on or

23 about the time that IAWA filed the proposal with the

24 Board, did the president of IAWA also send a copy of

L.A. REPORTING (312) 419-9292

1 the proposal and the documents prepared by

2 Drs. Garvey and Whiles to USEPA?

MR. STREICHER: Yes, he did.

MR. HARSCH: And on June 18, did

5 representatives of IAWA, USEPA, and IEPA have a

6 meeting to discuss this proposal?

MR. STREICHER: Yes, we did.

MR. HARSCH: And did we have a meeting

9 yesterday with representatives of the Illinois

10 Department of Natural Resources, various offices

11 within that department, and the environmental groups

12 that you listed in your written testimony?

MR. STREICHER: Yes, all of those

14 groups were present.

MR. HARSCH: At this point in time,

16 I'd like to ask Mr. Callahan to testify.

HEARING OFFICER McGILL: Okay. I'm

18 just going to take a moment to explain the

19 questioning process: Once these three witnesses for

20 IAWA have finished testifying, then they'll be

21 subject to questions from anyone present here. So

22 right now, we're going just to proceed with that

23 testimony.

Counsel for the IAWA may have some

L.A. REPORTING (312) 419-9292

1 follow-up questions after each person testifies, but

2 once the three of them have testified, they will be

3 available as a panel to answer questions from anyone

4 present here today. Thanks.

MR. HARSCH: Mr. Callahan, would you

6 state your name for the record?

MR. CALLAHAN: My name is John Michael

8 Callahan.

MR. HARSCH: And are you currently

10 employed?

MR. CALLAHAN: I am employed as the

12 executive director of the Bloomington and Normal

13 Water Reclamation District of McLean County,

14 Illinois.

MR. HARSCH: Have you prepared written

16 testimony for today's proceeding?

MR. CALLAHAN: Yes, I have.

MR. HARSCH: Mr. Hearing Officer, I'd

19 like the witness to have permission to read that

20 written testimony.

HEARING OFFICER McGILL: Go ahead.

MR. CALLAHAN: Good morning. In my

23 testimony, I would like to introduce some of the

24 history of IAWA's involvement in this proceeding.

L.A. REPORTING (312) 419-9292

1 I've been in the employment of the BNWRD for

2 thirty-one years during which time I've held

3 positions of increasing responsibility from that of

4 chemist to my current position of executive

5 director.

I've received a B.S. degree from

7 Illinois State University with double majors in

8 biological sciences and environmental health. I

9 have a master of arts degree from the University of

10 Missouri in ecology with an emphasis on nutrient

11 cycling. I pursued doctoral studies in biological

12 sciences at Illinois State University, again, with

13 an emphasis on nutrient cycling.

I hold an Illinois Environmental

15 Protection Agency Class 1 Wastewater Treatment Plant

16 Operator license. I have been a member of the

17 Phi Sigma National Biological Honor Society for

18 30 years and a member of the Sigma Xi Scientific

19 Research Society for 23 years. I've been actively

20 involved in professional organizations representing

21 various aspects of the wastewater treatment industry

22 and have held positions of leadership in such

23 organizations.

These organizations include the

L.A. REPORTING (312) 419-9292

1 Illinois Association of Wastewater Agencies, the

2 Illinois Water Pollution Control Operators

3 Association, and the Central States Water

4 Environment Association. I have been a member of

5 the Water Environment Federation for more than

6 25 years.

During my career, I've served on

8 several stakeholder groups organized by the Illinois

9 Environmental Protection Agency to assist in the

10 formulation of standards and policies concerning

11 both Illinois water quality and various issues

12 regarding wastewater treatment within the state.

I have published and/or presented

14 numerous papers on various aspects of wastewater

15 treatment throughout my career. It has been my

16 privilege to previously appear before the Illinois

17 Pollution Control Board to offer input on key issues

18 of widespread importance to our state. I thank the

19 Illinois Pollution Control Board for the opportunity

20 to appear again today to discuss the need for a

21 re-evaluation of the Illinois dissolved oxygen water

22 quality standard.

I am offering testimony on behalf

24 of the IAWA and in support of Mr. Dennis Streicher,

L.A. REPORTING (312) 419-9292

1 who is directing the IAWA initiative. The need for

2 a revised Illinois dissolved oxygen standard has

3 existed for some time, however, two relatively new

4 initiatives in water quality improvement within the

5 state have mandated that the issue of revising the

6 dissolved oxygen standard be undertaken at this

7 time.

These mandates are in response to

9 the need to develop scientifically derived nutrient

10 standards and to more precisely direct the adoption

11 of total maximum daily load allocations to Illinois

12 water listed as not attaining designated use

13 support. Since its inception approximately four

14 years ago, I have been a member of the IEPA Nutrient

15 Science Advisory Work Group.

This work group was assembled by

17 IEPA to develop a strategy for scientifically

18 deriving water quality standards for nitrogen and

19 phosphorus. Historically, the work group was

20 chaired by Mr. Robert Mosher of IEPA. Recently,

21 Mr. Paul Terrio of the U.S. Geological Survey has

22 replaced Mr. Mosher as work group chair.

The water quality degradation

24 ascribed to phosphorus and nitrogen is a phenomenon

L.A. REPORTING (312) 419-9292

1 called eutrophication. Eutrophication is a

2 condition which develops when the naturally limiting

3 nutrient of an ecosystem is increased to the extent

4 that the overall balance of ecosystem dynamics is

5 upset. The limiting nutrient of most freshwater

6 ecosystems is phosphorus. Degrading concentrations

7 of phosphorus effectively over fertilize the fresh

8 water aquatic system and result in enhanced algal

9 growth. Such algae are aerobic organisms.

During daylight hours, algae

11 photosynthesizes. A byproduct of photosynthesis is

12 oxygen. As a result of this photosynthesis during

13 early stages in the development of eutrophication,

14 daytime dissolved oxygen levels can be maintained

15 such that little negative effect is realized in an

16 aquatic system. However, during the night when no

17 sunlight is present to power photosynthesis, the

18 increased algae population must continue cellular

19 respiration as must the remaining aerobic biota of a

20 freshwater ecosystem.

Ultimately, the total oxygen

22 demand required by these respiring organisms exceeds

23 the ambient nighttime re-aeration capability of a

24 water body. Consequently, oxygen-sensitive species

L.A. REPORTING (312) 419-9292

1 are put at stress and population levels of such

2 organisms may significantly diminish.

A self-perpetuating downward

4 spiral of aquatic organism diversity can thus easily

5 develop as eutrophic conditions continue to persist.

6 The IEPA Nutrient Science Advisory Work Group

7 immediately recognized the determination of the

8 concentration of phosphorus at which the

9 eutrophication cycle begins to cause problematic

10 dissolved oxygen depletion to be one of the first

11 essential steps in developing an effective and

12 scientifically derived phosphorus standard.

Regrettably, it was also

14 recognized that this critical concentration of

15 dissolved oxygen was not known. However, many

16 professionals throughout Illinois agreed that the

17 current Illinois dissolved oxygen water quality

18 standard does not represent the dissolved oxygen

19 concentration which is critical to preventing the

20 onset of eutrophication.

In fact, there exists general

22 agreement among professionals that the ambient

23 dissolved oxygen concentrations of the waters of

24 Illinois frequently naturally fall beneath the

L.A. REPORTING (312) 419-9292

1 existing dissolved oxygen water quality standard.

2 Mr. Mosher, as chair of the work group, was one of

3 the individuals that initially suggested a

4 re-evaluation of the Illinois dissolved oxygen water

5 quality standard was a timely consideration.

Although there existed widespread

7 agreement several years ago within the work group

8 that a reassessment of our state's dissolved oxygen

9 water quality standard was warranted, IEPA indicated

10 the agency did not have the resources or manpower to

11 undertake such an effort at that time.

Realizing this need and the lack

13 of available resources, I asked Mr. Mosher if IEPA

14 would be receptive to and supportive of a

15 third-party investigation into the issue of the

16 dissolved oxygen standard. Such action was not

17 unprecedented, as Mr. Streicher indicated.

The IEPA had supported the IAWA in

19 a previous issue brought before the Illinois

20 Pollution Control Board involving the ammonia

21 nitrogen water quality standard. I was advised that

22 IEPA would support such an undertaking, but

23 definitely wanted input into the design of the

24 research investigation.

L.A. REPORTING (312) 419-9292

I then approached the IAWA

2 membership asking if sufficient interest existed for

3 IAWA to fund a third-party analysis of both the

4 existing Illinois dissolved oxygen standard as well

5 as an investigation that would provide a

6 recommendation for an appropriate dissolved oxygen

7 standard for Illinois.

The IAWA membership readily agreed

9 to fund such work and directed me to investigate

10 both the methods by which such a research study

11 could be undertaken as well as the willingness of

12 qualified professionals within Illinois to undertake

13 the study.

I initially contacted Dr. Matt

15 Whiles of the Southern Illinois University Fisheries

16 Research Laboratory to both inquire of his possible

17 interest in undertaking such work as well as his

18 recommendation of any other qualified individuals of

19 which he was aware that might be interested in the

20 research.

Dr. Whiles indicated that he was

22 quite interested in the project and that he thought

23 a colleague of his, Dr. James Garvey, would be very

24 interested in assisting him with the work. I

L.A. REPORTING (312) 419-9292

1 reported back to the IAWA membership that Dr. Whiles

2 and Dr. Garvey had expressed considerable interest

3 in undertaking the project. The IAWA membership

4 then unanimously voted to retain the services of the

5 two gentlemen.

This agreement was reached in the

7 summer of 2002. On September 30, 2002, Dr. Whiles

8 and I met with Mr. Mosher, Mr. Greg Goode, and other

9 IEPA staff to discuss aspects of the issue that IEPA

10 felt were critical to the investigation such that a

11 technically justifiable dissolved oxygen standard

12 supportable by sound science could be developed.

Agreement was reached among those

14 in attendance on the key issues which Dr. Whiles and

15 Dr. Garvey should investigate to satisfactorily

16 address all concerns. I had previously suggested to

17 the IAWA membership that the conclusions of the work

18 done by Dr. Whiles and Dr. Garvey should not be

19 released publicly until both the IEPA and the IAWA

20 had an opportunity to review them.

The IAWA readily agreed to this

22 qualification. I advised those in attendance at the

23 IEPA meeting that such was the qualification IAWA

24 had placed on the work to be done by Dr. Whiles and

L.A. REPORTING (312) 419-9292

1 Dr. Garvey. Again, this was the procedure

2 previously agreed upon between IEPA and IAWA during

3 the ammonia nitrogen water quality standard

4 development.

The IEPA representatives were

6 appreciative of this consideration. Dr. Whiles and

7 Dr. Garvey presented their initial draft report on

8 this investigation to me in early January of 2004.

9 I immediately circulated copies of the report to the

10 IAWA executive committee and the IAWA Nutrient

11 subcommittee as well as to IEPA.

It was at this point in the

13 proceedings that I withdrew from a lead role in the

14 development of the standard, and Mr. Streicher

15 volunteered to coordinate the upcoming rulemaking

16 proposal. The previous discussion presents the need

17 for a sound understanding of dissolved oxygen

18 dynamics in the waters of our state such that

19 meaningful and technically justifiable nutrient

20 standards can be developed.

Addressing either water quality

22 parameter, nutrients or oxygen without consideration

23 and a sound understanding of the other will not

24 result in a comprehensive and effective resolution

L.A. REPORTING (312) 419-9292

1 of the eutrophication problem. I personally find it

2 quite surprising and very sad that we know no more

3 about the interaction of these parameters than we

4 presently do, however, such is indeed the situation.

I assure everyone present that the

6 cost of addressing the nutrient issue in Illinois

7 will be extreme, however, I suggest that we look

8 beyond the actual monetary cost of such

9 requirements. A statistic I've often heard quoted

10 regarding the wastewater treatment industry states

11 that for every pound of carbonaceous waste we

12 currently remove from wastewater, four pounds of

13 carbon in the form of carbon dioxide are released to

14 the atmosphere through the energy generation

15 required for removal of that pound of waste.

Nutrient removal will only add to

17 this energy requirement. A thorough understanding

18 of the dynamics and interaction of nutrients and

19 oxygen is absolutely essential for effective and

20 efficient stewardship which addresses this issue. A

21 valid and scientifically based dissolved oxygen

22 standard is fundamental to this understanding.

The second mandate involving the

24 need for a current reassessment of the dissolved

L.A. REPORTING (312) 419-9292

1 oxygen standard to which I earlier referred involves

2 the effort currently under way to develop total

3 maximum daily load allocations for waters of the

4 state which are determined not to be achieving full

5 use designations.

The TMDL procedure evaluates a

7 watershed in an attempt to determine what the

8 assimilation rate of that watershed is for various

9 parameters. Hypothetically, both point source and

10 non-point source contributions of various parameters

11 are considered in determining the reduction in

12 loading necessary to realize use attainment for each

13 parameter of concern.

However, there regrettably exists

15 little apparent regulatory control other than

16 voluntary best management practices that can force

17 non-point contributions of various parameters to be

18 reduced to levels which are not detrimental to a

19 watershed. The readily controlled and regulated

20 contributions to a water body come from point

21 sources.

There may or may not be effective

23 additional controls which can be applied to point

24 sources that will assist in achieving full use

L.A. REPORTING (312) 419-9292

1 attainment. I believe that a specific solution for

2 a specific location will not universally solve the

3 problems experienced by all use impaired waters

4 across the state.

The dynamics and physical

6 conditions of each water body must be assessed and

7 considered as unique to that particular location.

8 However, inadequate dissolved oxygen is listed on

9 the IEPA draft 303(d) list as a fairly universal

10 parameter contributing to non-use attainment and

11 subsequent inclusion of water bodies on that list.

The draft 2004 303(d) list

13 contains approximately 300 water body segments in

14 Illinois listed as impaired, at least in part, by

15 inadequate dissolved oxygen concentrations.

16 Approximately 800 water bodies are listed on the

17 list; therefore, approximately one-third of the

18 water bodies listed on the draft 303(d) list are

19 listed in part because of a dissolved oxygen

20 standard which many professionals have indicated is

21 overly protective and not specific to the needs of

22 the waters of Illinois.

This dissolved oxygen contribution

24 to non-attainment is based on the current Illinois

L.A. REPORTING (312) 419-9292

1 dissolved oxygen water quality standard, which, as

2 previously discussed, has long been considered to be

3 a questionable validity. Some point dischargers are

4 now having a minimum dissolved oxygen limit included

5 in their NPDES permits.

In many situations, I believe that

7 compliance with an effluent dissolved oxygen permit

8 limit of six milligrams per liter will have

9 virtually no effect on improving receiving stream

10 dissolved oxygen concentrations when the naturally

11 occurring ambient diurnal dissolved oxygen minima of

12 that stream might easily be 4.5 milligrams per

13 liter.

One might speculate that over

15 protection is not necessarily unwarranted in its own

16 right. However, I again, respectfully, remind the

17 Board that compliance with a standard, over

18 protective or not, has a cost inherently associated

19 with it. Increased dissolved oxygen concentrations

20 in effluents require that air be supplied to these

21 waters before discharge.

This air comes from blowers, which

23 are powered by electricity. As I mentioned

24 previously, a rule of thumb in our industry

L.A. REPORTING (312) 419-9292

1 currently estimates one pound of carbonaceous waste

2 removed results in four pounds of carbon in the form

3 of carbon dioxide released to the atmosphere.

Are we as a society through the

5 TMDL program going to require that we aerate

6 treatment plant effluents or provide additional

7 treatment within our plants to comply with a flawed

8 dissolved oxygen standard and thereby perhaps

9 contribute another pound or two of carbon dioxide to

10 the atmosphere for the energy required to do so on a

11 per unit basis?

I certainly hope that our society

13 chooses not to follow that path, rather, I strongly

14 encourage the Board to adopt the dissolved oxygen

15 standard being proposed in this proceeding. It has

16 been developed by professional aquatic biologists in

17 consideration of the requirements of the aquatic

18 biota of our state. The proposed standard is based

19 upon and more conservative than the USEPA

20 recommended guidance for development of dissolved

21 oxygen standards.

Thank you for this opportunity to

23 again provide testimony and appear before the

24 Illinois Pollution Control Board. Thank you.

L.A. REPORTING (312) 419-9292

MR. HARSCH: At this point in time,

2 I'd like to call Dr. Garvey to testify.

HEARING OFFICER McGILL: Go ahead.

MR. HARSCH: Dr. Garvey, would you

5 state your full name for the record?

MR. GARVEY: James Edward Garvey.

MR. HARSCH: Where are you currently

8 employed?

MR. GARVEY: Southern Illinois

10 University for the Fisheries and Illinois

11 Aquaculture Center as an assistant professor.

MR. HARSCH: Have you prepared a

13 resume, which is found as Exhibit 5 in this

14 proceeding?

MR. GARVEY: Yes, I have.

MR. HARSCH: Are the statements

17 contained in there true and accurate?

MR. GARVEY: Yes, they are.

MR. HARSCH: And were you the

20 co-author, along with Dr. Whiles, of what is

21 Exhibit 1 in this proceeding?

MR. GARVEY: Indeed.

MR. HARSCH: Would you please read

24 your written testimony today?

L.A. REPORTING (312) 419-9292

MR. GARVEY: I am Dr. James Garvey,

2 assistant professor in the Fisheries and Illinois

3 Aquaculture Center at Southern Illinois University

4 in Carbondale. I have been engaged by the Illinois

5 Association of Wastewater Agencies, along with my

6 colleague, Dr. Matt Whiles, to scientifically

7 evaluate the current State of Illinois dissolved

8 oxygen standard and to provide recommendations about

9 how the Illinois standard might be revised and

10 updated if warranted by our scientific evaluation.

Both Dr. Whiles and I are broadly

12 trained in aquatic ecology. My specialty is the

13 ecology of fishes with much of my research focusing

14 on how environmental conditions affect fish

15 physiology, abundance, and distribution. My short

16 curriculum vitae has been submitted as IAWA's

17 Exhibit No. 5.

Dr. Whiles, a professor in the

19 department of zoology, is an expert on the ecology

20 of aquatic invertebrates and their role in streams

21 and lakes. His resume has been submitted as IAWA's

22 Exhibit 6. Our combined experienced qualified us to

23 provide an objective assessment of the current state

24 of knowledge about how dissolved oxygen affects

L.A. REPORTING (312) 419-9292

1 aquatic organisms and to evaluate the current

2 statewide one-day minimum standard of five

3 milligrams per liter.

We did not intensively evaluate

5 the application of the state standards to Lake

6 Michigan, and IAWA has not proposed to revise that

7 standard. Dr. Whiles and I began our assessment by

8 reviewing published, typically peer-reviewed

9 research on how dissolved oxygen affects aquatic

10 organisms and how dissolved oxygen varies in lakes

11 and streams.

We also reviewed the National

13 Ambient Water Quality Criteria Document for

14 Dissolved Oxygen, NCD, published by the United

15 States Environmental Protection Agency in 1986, and

16 that is submitted as IAWA's Exhibit 2. We evaluated

17 the current monitoring of water quality in Illinois

18 and conferred with the Illinois EPA concerning the

19 scientific basis for the current Illinois dissolved

20 oxygen standard. We then prepared a written report

21 of our findings, which is submitted as IAWA

22 Exhibit No. 1.

In the final report, Dr. Whiles

24 and I emphasize that using biological and habitat

L.A. REPORTING (312) 419-9292

1 quality criteria to evaluate the suitability for

2 aquatic life use in the surface waters of Illinois

3 is of paramount importance and should be continued

4 to be emphasized in monitoring programs. It is

5 unlikely that any one water quality parameter, such

6 as dissolved oxygen concentration, will capture the

7 capacity of a stream or lake to support aquatic

8 life.

Although our recommended dissolved

10 oxygen standards are sufficiently protective of

11 aquatic life in Illinois, we recommend that the

12 regulators strive to maintain dissolved oxygen

13 concentrations well above these minima when

14 possible.

We agree with the concerns voiced

16 by some colleagues that the state should move toward

17 a region-specific set of water quality criteria and

18 aquatic life goals, although, comprehensive regional

19 data to guide these decisions for Illinois are not

20 yet available.

As the NCD suggests, dissolved

22 oxygen concentrations in lakes and streams fluctuate

23 diurnally. During warm summer months, dissolved

24 oxygen concentrations decline due to water's reduced

L.A. REPORTING (312) 419-9292

1 capacity to hold oxygen at elevated temperatures and

2 the high respiratory demand of aquatic communities.

A single dissolved oxygen standard

4 such as that in Illinois does not realistically

5 capture these diurnal and seasonal fluctuations.

6 Although comprehensive surface water data are

7 lacking for the state, many pristine aquatic systems

8 largely unaffected by agricultural runoff or

9 municipal discharges most likely experience

10 occasional nonlethal declines in dissolved oxygen

11 below the state's current minimum of five milligrams

12 per liter.

Our recommendations in the report

14 include seasonally appropriate means and minima that

15 more realistically account for natural fluctuations

16 in dissolved oxygen concentrations while remaining

17 sufficiently protective of aquatic life. These

18 recommendations are based largely on potential

19 responses of all life stages of native Illinois

20 fishes that fall in the NCD's non-salmonid category.

As with the NCD, we define these

22 as typically warm water fishes, although, much

23 variation in temperature and oxygen tolerance occurs

24 among taxa in this group. Research summarized in

L.A. REPORTING (312) 419-9292

1 the 1986 NCD was used to set our recommended

2 dissolved oxygen standards above those

3 concentrations expected to slightly impair

4 production of fishes.

Research conducted since

6 publication of the report generally confirms that

7 the seasonal standards we recommend are sufficiently

8 protective of fishes and other aquatic organisms in

9 Illinois surface waters.

During spring through early

11 summer, most early life stages of fishes and other

12 aquatic organisms are produced. These early

13 reproducing organisms are typically the most

14 susceptible to low dissolved oxygen concentrations

15 and thus require the most stringent protection.

Our reanalysis of data within the

17 NCD and our review of the literature led to the

18 development of a standard proposed to be applicable

19 during March 1 through June 30, which specifically

20 protects these early life stages and includes both a

21 one-day minimum identical to the current Illinois

22 standard of five milligrams per liter and a

23 seven-day mean of six milligrams per liter.

During warmer productive months

L.A. REPORTING (312) 419-9292

1 throughout the remainder of the year when species

2 with sensitive early life stages have largely

3 completed reproduction, we recommend a one-day

4 minimum of 3.5 milligrams per liter and a seven-day

5 mean minimum of four milligrams per liter, which is

6 a more realistic general expectation for Illinois

7 surface waters than the current minimum standard of

8 five milligrams per liter.

Our recommended standards are

10 based on our current understanding of the short and

11 long-term responses of aquatic organisms to low

12 dissolved oxygen. In most natural aquatic systems,

13 habitat use by juvenile and adult fish is largely

14 unaffected by dissolved oxygen until concentrations

15 decline below three milligrams per liter.

Acute lethal effects on post

17 larval warm water fishes do not occur until

18 concentrations decline below two milligrams per

19 liter. As we note in the report, chronic effects of

20 long-term exposure to low dissolved oxygen

21 concentrations are not well understood. See IAWA's

22 Exhibit 1 at Page 18. Some impairment of growth

23 likely occurs in many warm water species when

24 dissolved oxygen concentrations are chronically

L.A. REPORTING (312) 419-9292

1 below four milligrams per liter, which none of our

2 recommended standards allow.

Initially, Dr. Whiles and I

4 summarized our findings and outlined our

5 recommendations in a draft report that was

6 distributed to IAWA and the Illinois Department of

7 Natural Resources, IDNR. Dr. Whiles also presented

8 our findings to a special meeting of IAWA this

9 spring where representatives from Illinois EPA --

10 IEPA, and Prairie Rivers Network were present.

During this time, I also

12 distributed the draft report to the U.S. Fish and

13 Wildlife Service, Region 3; Carterville Fisheries

14 Resource Office, U.S. Fish and Wildlife Service,

15 Region 3; Ecological Service Sub Office, the IDNR,

16 Office of Resource Conservation, the IDNR Office of

17 Realty and Environmental Planning, Division of

18 Natural Resource Review and Coordination, the

19 Illinois Natural History Survey/USGS, Long-Term

20 Resource Monitoring Program, Great Rivers Field

21 Station, and the Illinois Chapter of the American

22 Fisheries Society, ILAFS.

On June 10, 2004, I met with the

24 extended executive committee of the ILAFS to discuss

L.A. REPORTING (312) 419-9292

1 the report. Questions voiced by many of the

2 participants of the IAWA meeting held this spring

3 were answered in the final draft of the report.

4 After circulating the draft, I received informal

5 comments from the IDNR Office of Resource

6 Conservation, which also were addressed in the final

7 draft.

The IDNR Office of Realty and

9 Planning informally found the science to support the

10 recommended changes. During my recent meeting with

11 the executive committee of the ILAFS, I answered

12 questions about the report and the proposed changes

13 to the current Illinois standards. I agreed with

14 the primary conclusion of the group that a set of

15 regional standards are needed for Illinois. The

16 other groups have provided neither informal nor

17 formal feedback to me to date.

A letter dated 28 May 2004 written

19 by Ms. Beth Wentzel of Prairie Rivers Network to the

20 division of Water Pollution Control, ILEPA, raised

21 several specific concerns about our report.

22 Ms. Wentzel noted that our report was not entirely

23 consistent with the NCD. Although the NCD

24 recommends adopting the most conservative standards

L.A. REPORTING (312) 419-9292

1 for all early life stages of fish through 30 days

2 post hatching, whenever these life stages occur, our

3 report only recommends adopting these conservative

4 standards through June.

Of the 48 fish taxa in Illinois

6 that we surveyed, 40 taxa are likely to complete the

7 reproductive portion of their life cycle by the end

8 of June or earlier throughout Illinois. Given that

9 fluctuating oxygen concentrations occur naturally in

10 Midwestern streams and lakes during summer, the

11 remainder of species that continue to reproduce

12 during these months must have adaptations that allow

13 them to persist when ambient oxygen concentrations

14 occasionally approach our recommended summer

15 minimum.

However -- or hence, our report

17 indeed departs from the NCD in that it attempts to

18 generate more realistic expectations for dissolved

19 oxygen concentrations and the responses of native

20 aquatic life in Illinois. Another criticism voiced

21 by Ms. Wentzel was that we failed to address the

22 responses of cool water species, such as smallmouth

23 bass, in our recommended criteria. This is untrue.

These species were generally

L.A. REPORTING (312) 419-9292

1 grouped under our warm water categorization because

2 temperature requirements of non-salmonid fishes are

3 not well delineated, rather, species-specific

4 temperature needs vary widely along a gradient from

5 cool to warm water among fish in the Midwest.

Although cold water salmonids can

7 be categorized by their high oxygen and low

8 temperature requirements, I know of no specific

9 research that identifies Midwestern cool water

10 fishes as having substantially different oxygen

11 requirements during non-reproductive periods than

12 warm water counterparts.

The main difference between

14 species with cool and warm water requirements

15 appears to be their temperature-dependent growth

16 optima and lethal maximum temperature requirements,

17 which is a separate issue regarding the interactions

18 between habitat quality and temperature.

Interestingly, although smallmouth

20 bass is specifically listed in the NCD as a

21 sensitive, cool water fish, it has similar

22 temperature requirements as many conventional warm

23 water fishes. Further, smallmouth bass adults have

24 a minimum lethal dissolved oxygen limit of

L.A. REPORTING (312) 419-9292

1 1.2 milligrams per liter and you can see table 1,

2 IAWA Exhibit 1, which is well below our recommended

3 Illinois minimum standard.

Ms. Wentzel noted that we omitted

5 a 30-day mean standard from our recommendations,

6 although such a long-term moving average is

7 recommended in the NCD. In our view, fishes and

8 other aquatic organisms will respond at a much

9 shorter time scale to declining oxygen than 30 days

10 requiring a more frequently updated moving average

11 of seven days. A 30-day mean may erroneously miss

12 periods of chronically low dissolved oxygen if high

13 concentrations occur during the remainder of the

14 30-day monitoring period.

Another argument made against our

16 report's validity is that it focuses primarily on

17 fish. Fish were selected as the regulatory focus

18 because they were the model in the NCD and as it was

19 in 1986, most research on dissolved oxygen is

20 available for this group. Fish are also of

21 recreational and economic importance.

Although the data for other taxa

23 are indeed quite limited, we did address the

24 influence of dissolved oxygen on other organisms,

L.A. REPORTING (312) 419-9292

1 specifically mussels and aquatic insects and have

2 found a pattern that appears to be consistent with

3 that for fish. As we outline in the report, species

4 that have high oxygen requirements tend to inhabit

5 areas of consistently high and environmentally

6 predictable dissolved oxygen concentrations.

In a stream, this would be a

8 riffle habitat in which high gaseous exchange occurs

9 between the water and the atmosphere. In our

10 report, we recommend quantifying oxygen in areas and

11 during times when dissolved oxygen concentrations

12 are expected to be lowest such as a stream pool

13 before dawn.

These locations should be more

15 susceptible to declining oxygen than areas in which

16 high exchange elevates oxygen concentrations and

17 typically harbors the most sensitive species, such

18 as darters and mayflies. We take issue with

19 Ms. Wentzel's supposition that our recommendations

20 would render Illinois' dissolved oxygen standards

21 the weakest in the nation.

I have assessed the standards for

23 our peer State of Ohio. From what I understand,

24 Ohio has various aquatic use designations that are

L.A. REPORTING (312) 419-9292

1 similar to but more specific than those recommended

2 for Illinois. Each of these specific designations

3 has a different daily minimum and one-day average

4 dissolved oxygen concentration.

Probably the most common

6 designation for surface waters in Ohio is warm

7 water, which includes a daily minimum of

8 four milligrams per liter and a one-day average of

9 five milligrams per liter which appears, in my view,

10 to apply to the entire year.

Clearly, Ohio's general standard

12 is less conservative than our recommended statewide

13 standard during the spring, because its minimum of

14 four milligrams per liter is one milligram per liter

15 less than our proposed minimum standard.

And Ohio's minimum is not

17 significantly different than our proposed minimum

18 standard of 3.5 milligrams per liter during the

19 remainder of the year. Ohio's seasonal salmonid and

20 cold water designations are analogous to the

21 Lake Michigan standards, which we do not recommend

22 modifying.

In my assessment, the largest

24 difference between current standards within Ohio and

L.A. REPORTING (312) 419-9292

1 Illinois is that Ohio has developed more

2 regional-specific criteria to protect waters that

3 they deem important. Ohio's exceptional warm water

4 criteria are very similar to those that Illinois

5 currently has adopted for the entire state where

6 Ohio's daily minimum is five milligrams per liter

7 and its one-day average is six milligrams per liter.

Given that all the surface waters

9 in Illinois would certainly not be categorized as

10 exceptional, it is clear that the current general

11 aquatic use of Illinois dissolved oxygen is too

12 strict. Our recommended standards do provide

13 similar protection as Ohio's exceptional waters

14 during the critical peak reproductive times of the

15 year.

During my conversations with other

17 scientists, resource managers, and water regulators,

18 I have received many comments about how the

19 recommended standards are based on sound science and

20 needed in the state. I recognize and somewhat

21 understand the perception by some individuals that

22 our recommendations would weaken the Illinois

23 standards.

However, the weight of information

L.A. REPORTING (312) 419-9292

1 available for aquatic organisms suggests that the

2 proposed standards set more realistic expectations

3 for surface waters in Illinois and will not degrade

4 the biological integrity of these systems. I agree

5 that more research is needed in many areas and hope

6 that the proposed standard changes will be viewed as

7 one step in a dynamic, continuing process.

It is my view that the state

9 should move toward developing region-specific biotic

10 integrity, habitat quality, and water quality

11 criteria as credible long-term data sets become

12 available.

MR. HARSCH: I have some general

14 follow-up questions.

HEARING OFFICER McGILL: Go ahead.

MR. HARSCH: Dr. Garvey, at our recent

17 meeting with USEPA and Illinois EPA, did you become

18 aware of certain DO water quality data?

MR. GARVEY: Yes, I did.

MR. HARSCH: And have you made

21 arrangements since that meeting to obtain that data

22 from the survey and the data that was prepared on

23 the Fox River?

MR. GARVEY: Yes, I have.

L.A. REPORTING (312) 419-9292

MR. HARSCH: And will you be reviewing

2 that data prior to the next hearing?

MR. GARVEY: Yes, I will.

MR. HARSCH: What is your general

5 understanding that that data shows in terms of the

6 waters in Illinois complying with the existing

7 standard and the proposed standard?

MR. GARVEY: I've personally had a

9 very cursory look at these data, and as a scientist,

10 I'm very reluctant to make any conclusions until

11 I've had a chance to look at these data more

12 closely. But on occasion, they do appear to decline

13 below the state standard of five milligrams per

14 liter and that they probably do not violate the

15 3.5 milligrams per liter standard that we recommend.

16 Again, I want to take a look at the data before I go

17 from that point.

MR. HARSCH: Is that conclusion

19 supported by the field work that you have personally

20 performed on various Southern Illinois waterways?

MR. GARVEY: Yes, it has. I've worked

22 in seven tributaries of the Ohio River and have

23 taken essentially water quality data during midday,

24 including dissolved oxygen, and in addition to that,

L.A. REPORTING (312) 419-9292

1 we've done fish surveys essentially using

2 electrofishing and a variety of other gears.

And essentially what we found is

4 approximately 13 to 15 percent of the time, just

5 when we were going out doing spot estimates of

6 dissolved oxygen, you would essentially have

7 readings that were below five milligrams per liter.

8 Just taking a look at the data and comparing it to

9 the 3.5 milligrams per liter standard, that would

10 likely reduce the violation of that standard down to

11 maybe two or three percent of the time.

MR. HARSCH: And these are the streams

13 that you included in your description of your work

14 in your report?

MR. GARVEY: That was not included in

16 the report. That was data that we had analyzed

17 after the fact, after several conversations with

18 colleagues and agencies asking questions about what

19 about streams. In our report, we talk specifically

20 about dissolved oxygen concentrations in stratified

21 lakes within Illinois.

MR. HARSCH: Okay. If I understand

23 your comment on the warmer water -- the species that

24 continue reproducing into the months of July and

L.A. REPORTING (312) 419-9292

1 beyond, to put it in layman's terms, if bluegills

2 spawn throughout the year, they must have adapted to

3 be able to reproduce when naturally occurring

4 dissolved oxygen concentrations would routinely fall

5 below the current standard?

MR. GARVEY: That would be my belief

7 at this stage. Looking at data that are available

8 for fishes that tend to spawn in a protracted

9 fashion throughout the season -- and what I'm

10 talking about is protracted through the growing

11 season, through July, August -- typically fall into

12 three groups.

The first groups are the species

14 that we've considered to be lentic or of a

15 non-flowing water, those are usually the lopomas,

16 the centrarchids. These species must have

17 adaptations because we know that they occupy systems

18 that typically decline in oxygen.

There's another group of species

20 that do tend to inhabit constantly flowing water and

21 in those situations we wouldn't expect dissolved

22 oxygen to decline to the point that we might expect

23 it to decline in more quiescent, non-flowing areas.

24 So those species are adapted, as I say in my

L.A. REPORTING (312) 419-9292

1 testimony, to systems that have never experienced

2 interruptions in flow. They're adapted to constant

3 systems where oxygen is always expected to be

4 constant.

And then the third group are what

6 we would consider to be species that tend to have

7 protracted spawning. But the reason they do that is

8 because they typically live in environments that are

9 disturbed and these are environments, of course,

10 we'd expect to be low oxygen conditions. And they

11 basically just keep spawning over and over and over

12 again to ensure that perhaps one clutch can possibly

13 be produced.

So those are the three general

15 groups of species that we would expect to continue

16 spawning throughout the summer during the times when

17 we would expect dissolved oxygen to occasionally

18 decline.

MR. HARSCH: This is a question I

20 suppose for Mr. Callahan. Mr. Callahan, what do you

21 believe will be the impact on individual publicly

22 owned treatment works if the standard is enacted by

23 the Board and approved by USEPA?

MR. CALLAHAN: As plants are currently

L.A. REPORTING (312) 419-9292

1 operated, probably not much. We don't actively

2 regulate or adjust the dissolved oxygen

3 concentration of our discharges. Based upon various

4 stages of treatment in the cascading action from one

5 to the other as well as the necessity to aerate as a

6 mixing tool disinfection units in these plants,

7 routinely the water that leaves our plants is

8 probably somewhere between five and a half of

9 spheric saturation milligrams per liter.

So I don't think there would be

11 much in terms of actual plant operation that would

12 be impacted by changing the regulation. We

13 certainly wouldn't be turning anything down from

14 what we're doing right now unless, of course, we add

15 a permit limit of six, which has recently begun to

16 be I think presented at dischargers across the

17 state. Under those circumstances, it might be

18 necessary to aerate continuously.

MR. HARSCH: Then what -- apart from

20 the state's ultimate development of a phosphorus

21 standard, is the most likely impact then going to be

22 through the TMDL process if the discharger

23 discharges to a segment listed on the 303(d) list?

MR. CALLAHAN: At this point, yes, I

L.A. REPORTING (312) 419-9292

1 think so. That's one of the issues that is

2 immediately before us. The nutrient standards

3 presumably will be enacted in 2007, 2008, although,

4 I believe there will be an interim standard

5 presented to the Board later this summer. The

6 immediate thing before our industry is the 303(d)

7 listing and the accompanying TMDL requirements that

8 have to go along with that.

And I'm not at all apprehensive

10 about a standard here being developed along the

11 guidelines advocated by Dr. Whiles and Dr. Garvey.

12 I believe that most all of our existing waters where

13 we would want to maintain assurances that we are not

14 contributing to further degradation are already

15 protected by anti-degradation regulations that are

16 in place for dischargers.

Any existing discharge that would

18 be permitted for increased capacity for growth, we

19 have to address these loadings through the

20 anti-degradation process, and I think that will be

21 protective in terms of TMDL and so on and so on.

MR. HARSCH: And currently, treatment

23 plants control and are regulated with effluent

24 limitations in their NPDES permits that are based

L.A. REPORTING (312) 419-9292

1 upon the technology-based effluent requirements

2 found in the Board's regulations?

MR. CALLAHAN: That is correct, and to

4 some extent their water quality based effluence as

5 is the case with ammonia and many other toxins and

6 metals that were regulated.

MR. HARSCH: This is a question I

8 guess for both Mr. Callahan and Mr. Streicher. Is

9 it your understanding that if the water segment is

10 currently listed on the 303(d) list because of poor

11 MBI scores, habitat modification, nutrient

12 impairment and dissolved oxygen impairment, that if

13 IEPA were to perform a TMDL for that segment, the

14 only parameter that would actually be evaluated for

15 which a load allocation would be set would be

16 dissolved oxygen?

MR. STREICHER: At this point in time,

18 there is no water quality standard for nutrients, so

19 dissolved oxygen would be the only water quality

20 standard in place that a TMDL would be listing in a

21 stream segment.

MR. HARSCH: Is that your

23 understanding also, Mr. Callahan?

MR. CALLAHAN: Yes, it is. I'm not

L.A. REPORTING (312) 419-9292

1 aware that there are any habitat considerations that

2 would be taken.

MR. HARSCH: There has been discussion

4 in the testimony by Dr. Garvey regarding the

5 advisability or the preference to establish

6 regional-base standards. Has IAWA given any thought

7 to that effort?

MR. STREICHER: IAWA has formed a

9 subcommittee to develop use attainability and use

10 designations. We're looking at this throughout the

11 state with the goal of identifying those segments

12 that would have high quality waters or perhaps the

13 stream that I discharge to, which is an urban

14 effluent-dominated water that would have a different

15 use attainability or a different use designation.

We haven't gotten so far yet as to

17 identify all the possible use designations

18 throughout the state, but we're addressing that.

19 We're looking into it closely.

MR. HARSCH: In fact, that's the

21 current step that the committee is trying to

22 identify, the stream use?

MR. STREICHER: That's right.

MR. HARSCH: Would IAWA welcome the

L.A. REPORTING (312) 419-9292

1 participation of environmental groups and the

2 various parts of DNR that we've met with and the

3 Illinois Protection Agency in this effort?

MR. STREICHER: We're already reaching

5 out to just those very groups. We want to

6 participate with them and develop a reasonable use

7 attainability or use designation.

MR. HARSCH: Okay. In the report

9 prepared, which is Exhibit 1, there was some

10 reference to the preferred method of dissolved

11 oxygen sampling being continuous data loggers or

12 semi-continuous data loggers. Are you aware of IAWA

13 members that are currently in the process of

14 installing continuous dissolved oxygen samplers?

MR. STREICHER: There are several

16 districts across the state. The Wheaton Sanitary

17 District I know is looking into this. The Water

18 Reclamation District of Chicago already has these

19 data loggers in place.

MR. HARSCH: Is the Fox River and

21 Fox Metro Water Reclamation --

MR. STREICHER: Right. I was just

23 going to say the Fox River study group with those

24 two districts involved are also placing continuous

L.A. REPORTING (312) 419-9292

1 loggers. The watershed committee that I mentioned

2 in my testimony is on the verge of purchasing data

3 loggers to install on the East Branch and Salt Creek

4 basins as well.

MR. HARSCH: Now, the work by Fox

6 Metro and Fox River Water Reclamation Districts,

7 that would be upstream and downstream of Elgin and

8 upstream and downstream of Aurora and the Fox River?

MR. STREICHER: Yes.

MR. HARSCH: At the point in time, I

11 would tender the witness's examination to the Board.

HEARING OFFICER McGILL: Thank you.

Let's go off the record for a

14 moment.

(Whereupon, a discussion was had

off the record.)

HEARING OFFICER McGILL: Before we

18 begin questions posed by members of the public or

19 the Board here for the IAWA's witnesses, I just want

20 to know -- we sent around a sign-in sheet for those

21 who care to indicate their presence today.

And in addition to the groups I

23 mentioned earlier, we have representatives from the

24 Lieutenant Governor's Office, the Illinois

L.A. REPORTING (312) 419-9292

1 Department of Natural Resources, the Illinois

2 Environmental Regulatory Group as well as individual

3 members of the IAWA and still others, so, again, all

4 are welcome and we thank you for turning out today.

The Board has a number of

6 questions they would like to pose, but we're going

7 to open it up first to the members of the public to

8 pose any questions they may have for the IAWA's

9 witnesses. Everyone is welcome to ask questions.

Albert Ettinger is here up front.

11 He needed some room to spread his materials out.

12 He's representing the Sierra Club, Prairie Rivers

13 Network, and Environmental Law and Policy Center.

14 We're going to start with his questions, but

15 everyone is welcome to pose a question.

Anyone present here today, if you

17 have a question for these witnesses you'll have a

18 chance to ask that question, and they'll be

19 answering questions, all three witnesses, as a

20 panel.

(Brief pause.)

Anand Rao of our technical unit makes

23 a good point. We have a series of questions that we

24 have put together. If Mr. Ettinger is on a

L.A. REPORTING (312) 419-9292

1 particular subject matter that we have a follow-up

2 question on, for continuity of the record in terms

3 of subject matter, we may jump in with a question

4 there and the transcript will just read a lot more

5 coherently if we do that.

Are there any questions about the

7 procedure we'll follow here with cross-examination

8 of witnesses?

(No response.)

Seeing none, I'll turn it over to

11 Mr. Ettinger.

MR. ETTINGER: Actually, my first

13 question is for Roy Harsh. You indicated at the end

14 of Dr. Garvey's questioning that he was going to

15 look at some more material that he would report

16 at the -- he was going to report. Does that

17 indicate that Professor Garvey is going to be back

18 at the next hearing?

MR. HARSCH: Yes, all three of the

20 witnesses will be present at the next hearing.

MR. ETTINGER: Thank you.

I'm going to proceed in a very

23 unimaginative manner, which is my normal course of

24 life, and just pretty much go through Exhibit 1 and

L.A. REPORTING (312) 419-9292

1 ask a question, so I'm going to start with

2 Dr. Garvey.

First, you're at SIU?

MR. GARVEY: Yes.

MR. ETTINGER: Did you know

6 Dr. Sheehan?

MR. GARVEY: Yes.

MR. ETTINGER: Did you replace

9 Dr. Sheehan?

MR. GARVEY: No. Actually, we

11 overlapped for a couple of years.

MR. ETTINGER: Did you work with

13 Dr. Sheehan?

MR. GARVEY: Yes. We interacted quite

15 a lot on latter projects.

MR. ETTINGER: Did you have a high

17 respect for the quality of his work?

MR. GARVEY: Yes.

MR. ETTINGER: Looking first at Page 7

20 of your assessment document --

HEARING OFFICER McGILL: This is

22 Hearing Exhibit 1. Sorry to interrupt.

MR. ETTINGER: Hearing Exhibit 1,

24 yeah. I wasn't clear. Was the prefiled testimony

L.A. REPORTING (312) 419-9292

1 marked as an exhibit or as --

HEARING OFFICER McGILL: No. Because

3 they read the prefiled testimony into the record,

4 the prefiled testimony itself is not a hearing

5 exhibit.

MR. ETTINGER: Okay. Thank you.

Looking at Hearing Exhibit No. 1,

8 you speak here -- it's the first topic it says:

9 Anthropogenic influences on oxygen and freshwater

10 habitats in particular the addition of nutrients.

11 Nutrient enrichment and eutrophication leads to

12 reduced oxygen concentrations because of increased

13 productivity and biochemical oxygen demand.

What nutrients are you talking

15 about.

MR. GARVEY: Primarily nitrogen and

17 phosphorus.

MR. ETTINGER: Have you studied the

19 effect of anthropogenic phosphorus and nitrogen on

20 the systems that you've looked at?

MR. GARVEY: Are you talking about the

22 ones in the Ohio River or are you talking in general

23 in my research?

MR. ETTINGER: Why don't you answer

L.A. REPORTING (312) 419-9292

1 both questions?

MR. GARVEY: In my general research,

3 yes. I've been involved in quite a bit of work

4 particularly in Midwestern reservoirs looking at

5 primarily phosphorus which is usually a nutrient --

6 the limiting nutrient within a lot of these

7 particular systems. Nitrogen tends to be so high

8 that it makes phosphorus a limiting factor. So,

9 yes, in my research I have done a fair amount of

10 looking at the responses to nutrient effects on

11 particular systems.

Now, in terms of the particular

13 streams that I talk about when I talk about the

14 seven systems that we've worked in that are

15 tributaries of the Ohio River, no, I don't really

16 know much about chlor filet, which is usually --

17 typically can be correlated with changes in the

18 phosphorous and nitrogen systems. I don't know.

MR. ETTINGER: How is chlor filet

20 correlated with changes?

MR. GARVEY: Chlor filet is basically

22 an estimate of the pigment that's associated with

23 the production of the phytoplankton, which is one of

24 the most likely groups of organisms to respond to

L.A. REPORTING (312) 419-9292

1 fluctuations of phosphorus in particular and so we

2 usually use chlor filet as our way of sort of

3 estimating the amount of plankton, phytoplankton

4 that are out there.

MR. ETTINGER: Have you seen streams

6 in southern Illinois that had a lot of chlor filet

7 in it?

MR. GARVEY: Sure, and I'm aware of

9 that too, yeah. And that typically is one of the

10 things that are -- you know, if you take a look at

11 folks looking at the impairment of a stream, if you

12 focus on things like chlor filet, it's going to give

13 you some indication of the eutrophic status of that

14 particular stream.

MR. ETTINGER: What does chlor filet

16 do to a stream?

MR. GARVEY: Chlor filet in itself

18 doesn't do anything to the stream. It's just an

19 index of the amount of phytoplankton that are in

20 that particular stream. If you're talking about

21 what chlor filet are associated with phytoplankton,

22 phytoplankton, as Dr. Callahan talked about in his

23 testimony, essentially are responsible for a great

24 deal of the oxygen production during the day because

L.A. REPORTING (312) 419-9292

1 they're abundant and are producing oxygen.

But at night, they're also

3 responsible for a great deal of the respiration

4 within a particular stream, often the majority of

5 it, and they suck the oxygen out. And typically,

6 predawn is when you would expect the greatest oxygen

7 sag to occur in a flowing water or non-flowing water

8 system.

MR. ETTINGER: Does this, the

10 phytoplankton and the chlor filet, have any effects

11 in terms of recreational use of the water?

MR. GARVEY: Most certainly. I mean,

13 I think people like clear water, right, because it

14 makes the water look pretty. However, there are

15 also responses that if there are -- lots of research

16 has been done looking at fishery responses to

17 productivity in that there's usually a direct link

18 between increases in total phosphorus, increases in

19 phytoplankton, increases in chlor filet, and

20 increases in fish growth.

So there's a bit of a tradeoff

22 between how much nutrients you have in a particular

23 system and fish growth, but also it affects water

24 clarity in a negative fashion, which recreational

L.A. REPORTING (312) 419-9292

1 swimmers, recreational jet skiers, things like that,

2 do not like typically water that's kind of green and

3 mucky.

MR. ETTINGER: And so -- I think

5 you've alluded to it, but how does the increase in

6 the nutrients then lead to reduced oxygen

7 concentrations?

MR. GARVEY: Basically, the increase

9 in community respiration typically associated with

10 the phytoplankton, with the algae, the macro algae,

11 that kind of thing that grows on the aquatic plants,

12 all of that, obviously, produces oxygen during the

13 day and uses oxygen at night. And the more biomass

14 you have out there, the more of an oxygen demand

15 you'll have in a particular system.

MR. ETTINGER: And it leads to low

17 oxygen levels at night?

MR. GARVEY: Typically, yes.

MR. ETTINGER: And typically higher

20 oxygen levels during the day?

MR. GARVEY: Right, so that the

22 magnitude and the amplitude of diel or diurnal

23 oxygen fluctuations will likely increase, so there

24 aren't a lot of data out there to sort of -- this

L.A. REPORTING (312) 419-9292

1 would just be a supposition on our part -- that

2 would suggest that that should increase with any

3 increase in nutrient loading, increase of biomass

4 and so on and so forth.

MR. ETTINGER: Is there any way now to

6 predict the level of fluctuation based on the amount

7 of phosphorus that you have in the water?

MR. GARVEY: You know, for streams

9 it's notoriously difficult because you have an

10 incredible number of competing factors, ground water

11 inundations, flow, temperature, all those sort of

12 factors that are going to make it really tough from

13 all of that. There are some very good models out

14 there predicting oxygen dynamics in lakes. They're

15 a little bit easier to sort of get a handle on all

16 the physical processes that are influencing oxygen.

MR. ETTINGER: Well, for instance,

18 let's say you had a data point at 2:00 in the

19 afternoon in a lake, would you then be able to

20 predict what the oxygen level might be at 1:00 at

21 night?

MR. GARVEY: Well, I would say and, of

23 course, if I was to model it and I needed to give

24 you a model on that, I wouldn't be as -- in a lake

L.A. REPORTING (312) 419-9292

1 system, I would feel fairly confident. In a stream

2 system, I would say that a model is not going to

3 give you a decent number that you can really trust,

4 however, the assumptions based on our conceptual

5 understanding of systems, yeah, it's going to be

6 lower.

MR. ETTINGER: But you don't know how

8 much lower?

MR. GARVEY: I don't know how much

10 lower.

MR. ETTINGER: Getting back to fish,

12 are you aware of any research on the fluctuations

13 themselves having an affect on fish?

MR. GARVEY: There's a few studies out

15 there that have looked at oxygen fluctuations and

16 typically -- and I need to go back and look at my

17 literature -- typically, it's inconclusive. It

18 suggests that oxygen fluctuations -- you know, the

19 hypoxic effects is sort of related to the lower

20 point of the oxygen in that particular sinusoidal

21 change in the times.

MR. ETTINGER: But you're not aware of

23 any studies that show that the fish might be better

24 off if they have a constant level of, say, six and

L.A. REPORTING (312) 419-9292

1 then half the time eight and half the time four?

MR. GARVEY: No. In our report we

3 mention that that is the type of research that needs

4 to be better worked out for particular systems

5 because if fish are exposed to low oxygen

6 conditions, what will typically happen is that some

7 stress hormones will increase.

Those stress hormones essentially

9 are to help the fish increase its respiration, which

10 will increase the oxygenase tissue, you know,

11 basically expedient respiration. When that stressor

12 goes away, the stress hormones will remain for a

13 while until they've metabolized it off and there

14 might be some probably deleterious effects in terms

15 of probably growth, however, we don't understand

16 those chronic long-term effects very well.

MR. ETTINGER: I'm running out of time

18 before noon, but I wanted to wrap this up a little

19 bit. Is there a natural diurnal swing in streams

20 that don't have any anthropogenic nutrients in them?

MR. GARVEY: That's going to be a

22 difficult one to say because the reality is that

23 most streams probably have some anthropogenic

24 influences and so that begs the question as to what

L.A. REPORTING (312) 419-9292

1 is a pristine system and what is, you know, a

2 natural condition.

MR. ETTINGER: So we really don't know

4 what a natural diurnal swing is in Illinois?

MR. GARVEY: I think we can probably

6 find some streams that might give us some indication

7 of what to expect. But, of course, there are those

8 streams probably in Illinois that have not been

9 affected by a human at some level.

MR. ETTINGER: Have you looked at

11 specific studies of any streams that would give us

12 what a natural diurnal swing is?

MR. GARVEY: I'd love to, but

14 unfortunately, those data are currently being

15 collected in the state, but have not been

16 disseminated widely yet. There's a current set of

17 projects associated with SFAR where those kinds of

18 data are being collected, and as we've noted, there

19 are data that are available currently in the state

20 that hopefully I'll be able to take a look at in the

21 next couple of months before the next hearing to

22 have a better idea of what kind of fluctuations we

23 expect to see in systems that are along a gradient,

24 probably human impacts.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: Do you know when we're

2 expecting to see those results?

MR. GARVEY: The SFAR results probably

4 within the next two years you should start seeing

5 the dissemination of those results and reports. The

6 data that I will take a look at, I'll take a look at

7 this summer. Again, it's not going to be a

8 comprehensive conclusive -- it will be for

9 particular systems that I have in front of me, but

10 yeah, I'll have an opportunity at least to have what

11 will probably be a reflection of what the SFAR

12 project will produce.

MR. ETTINGER: The data you have in

14 front of you, are those tributaries of the Ohio

15 River?

MR. GARVEY: They'll actually be data

17 that are available for -- I'm not exactly sure how

18 many stream segments that I'll get from the USGS,

19 but they did do a fairly intensive study looking at

20 diel oxygen fluctuations is my understanding.

HEARING OFFICER McGILL: It's shortly

22 after noon. We're going to recess now for lunch and

23 we will start up again at 1:00 sharp, so please try

24 to be back by then. There are restaurants

L.A. REPORTING (312) 419-9292

1 downstairs here in the building all around, so

2 you've got a lot of choices. With that, we'll go

3 off the record.

(At 12:02 p.m. a lunch recess

was taken to 1:00 p.m.)

HEARING OFFICER McGILL: Good

7 afternoon. It's 1:00. I'm just going to go on the

8 record for a moment to reflect that we are

9 reconvening in a new hearing room. This is Room 503

10 on the 16th Floor of the Thompson Center. We have

11 posted signs throughout the Illinois Pollution

12 Control Board offices indicated the change of our

13 location, and staff is directing participants up to

14 this new hearing location.

To allow people time to get up

16 here, we're going to recess for 15 minutes. We'll

17 start the afternoon session at 1:15. Thanks. Let's

18 go off the record.

(Whereupon, a short recess was

had.)

HEARING OFFICER McGILL: We're back on

22 the record. This is RO4-25. For our afternoon

23 session we have reconvened here in Room 503 on the

24 16th floor. The posted sign is back on the 11th

L.A. REPORTING (312) 419-9292

1 Floor directing all participants up here for the

2 afternoon session. Before we continue with

3 Albert Ettinger's questions for the IAWA's

4 witnesses, on my own motion, I'm going to enter into

5 the record as Group Hearing Exhibit No. 7 two

6 documents.

These are two documents from a

8 separate rulemaking proceeding before the Board,

9 which is R02-19 entitled Proposed Amendments to

10 Ammonia Nitrogen Standards. These two documents

11 were entered as Exhibits 3 and 4 in that rulemaking

12 proceeding, R02-19, and they are the written

13 testimony of Dr. Robert Sheehan as well as a

14 Table 1 entitled Spawning Periods for Fishes in

15 Illinois. That will now be Group Exhibit

16 No. 7 for this rulemaking proceeding, RO4-25.

And we may have some questions

18 related to those documents. We wanted to be able to

19 refer to those and make it easy for everyone to have

20 access to those documents and the best way to do

21 that is to go ahead and make it a hearing exhibit

22 for purposes of this proceeding. Is there any

23 objection to doing that?

MR. HARSCH: No, sir.

L.A. REPORTING (312) 419-9292

HEARING OFFICER McGILL: Seeing none,

2 that will now be entered as Group Exhibit No. 7.

3 Thank you.

And with that, I'll turn it over

5 to Albert Ettinger to continue the questioning

6 period. Thank you.

MR. ETTINGER: Going back to Hearing

8 Exhibit No. 1, Page 8, the first full sentence on

9 the page says: Most frequently associated

10 monitoring activities focus on daily minimum levels

11 often quantified predawn or average over a period of

12 time, what do you mean by that?

MR. GARVEY: Actually, when I read it

14 and after subsequently talking with various agency

15 folks, you know, the reality is is that I don't know

16 if monitoring activities actually do focus on a

17 minimum level taken predawn. As far as I

18 understand, most of the time people take it when

19 they're out collecting a biotic index or some other

20 sort of data and just happened to stick a DO meter

21 into the water at that particular period of time.

So in a way, I think that this

23 might be the way a lot of agencies would like to

24 collect dissolved oxygen data, but they have not. I

L.A. REPORTING (312) 419-9292

1 don't know a way to quantify that.

MR. ETTINGER: And so you don't know

3 whether we have any predawn data in Illinois?

MR. GARVEY: Yeah. I don't know of

5 really any study where there are predawn data. I do

6 have access to the continuous data. I mean, I

7 haven't looked at it yet, but in the next two

8 months, hopefully I'll have some continuous

9 dissolved oxygen data available to me.

MR. ETTINGER: And your understanding

11 is that that's the USGS's data that was taken at

12 those, I believe, eight sites recently?

MR. GARVEY: Yeah, that's my

14 understanding.

MR. HARSCH: It's also the data that

16 was taken on the Fox River by Mr. Santucchi. He

17 also had that data available.

MR. ETTINGER: Okay. So you had the

19 Santucchi data and the USGS data?

MR. GARVEY: I presume I'll have those

21 data available to me before the second hearing to

22 talk about that and hopefully get input from other

23 groups as well.

MR. ETTINGER: Okay. But at that time

L.A. REPORTING (312) 419-9292

1 you wrote this --

MR. GARVEY: No.

MR. ETTINGER: -- you were not aware

4 of the predawn data?

MR. GARVEY: No.

MR. ETTINGER: Okay. Thank you.

When you went out and did your

8 studies of these Ohio River tributaries, how early

9 in the morning did you get up?

MR. GARVEY: Typically, yeah, it's the

11 same thing. We basically went out when we were

12 doing electrofishing surveys and when we went to

13 each site typically during mid-morning to midday,

14 took our hydrolab or our YSI DO meter and took a

15 reading.

Typically, the data that I've

17 shown you are for the surface, so probably at a half

18 meter or less of depth. We did on occasion take DO

19 readings near the bottom and they were very low and

20 so I did not include those in my analysis that I've

21 talked to people about.

MR. ETTINGER: Okay. I might as well

23 pursue that. Do you have an analysis written up of

24 this data that you collected in the Ohio River

L.A. REPORTING (312) 419-9292

1 tributaries?

MR. GARVEY: One of the papers is

3 currently submitted to the transactions of the

4 American Fishery Society, which is a peer-review

5 journal, and hopefully we'll be getting comments

6 back from the peer-review process fairly soon.

The remainder of the data are

8 actually incorporated into master's theses projects

9 that students have ongoing, and they should be

10 finishing up their research in the next hopefully

11 six months or so, and they will at least be

12 published in theses and we do plan to disseminate

13 all those data in the peer-reviewed literature as

14 well.

MR. ETTINGER: Okay. So we'll hope to

16 have that data in six months?

MR. GARVEY: That would be the hope,

18 that the data will be in a form that I feel

19 comfortable with the analysis. It will be far more

20 astringent than what I've done. I mean, obviously,

21 I trust the information that I have provided to you,

22 but we'll have a better understanding of the

23 mechanisms underlying the processes associated with

24 the fish in those particular areas and relating that

L.A. REPORTING (312) 419-9292

1 back to the field.

MR. ETTINGER: And these master theses

3 are all by SIU students?

MR. GARVEY: Each one of them is my

5 graduate student. The research was funded by the

6 Army Corp. of Engineers.

MR. ETTINGER: And did they all look

8 at Southern Illinois streams or did some of them

9 look at streams outside of Southern Illinois?

MR. GARVEY: All these streams as a

11 project were actually focusing on fish use, habitat

12 use within the Ohio River and associated

13 tributaries, so just the Southern Illinois

14 tributaries.

MR. ETTINGER: Okay. Thank you.

Turning now to Page 9 of

17 Exhibit 1, it states: With the exception of the

18 Lake Michigan system, most inland waters in Illinois

19 are dominated by warm water non-salmonid faunal

20 assemblages.

What inland waters are not

22 dominated by warm water assemblages other than Lake

23 Michigan.

MR. GARVEY: That's a good question,

L.A. REPORTING (312) 419-9292

1 and honestly, I think after conversations with many

2 folks in Illinois, both scientists and agency folks,

3 we would suggest that those systems probably are

4 clustered in the northern part of the state.

And in terms of actual

6 quantification of that, I can't give you a number,

7 but I would say that southern Illinois, certainly in

8 the central portion of Illinois can probably be

9 safely classified as relatively low gradient warm

10 water associated systems.

MR. ETTINGER: But there are some in

12 northern Illinois that would fall into the same

13 category as Lake Michigan?

MR. GARVEY: Well, honestly, I don't

15 know of any systems and this is through my

16 conversations with Dr. Brooks Burr, the resident at

17 Southern Illinois University. I did ask him if

18 there were any classic cold water systems where

19 trout might have been found pre-establishment of

20 European settlers and he said that he had no

21 evidence in his experience of that and so I safely

22 can say that probably no systems had cold water fish

23 in them.

Now, cool water fish and low --

L.A. REPORTING (312) 419-9292

1 fish that are intolerant of this low dissolved

2 oxygen, I don't know what the answer to that is.

MR. ETTINGER: Are salmonids the only

4 cold water fish?

MR. GARVEY: You know, in North

6 America, cold water fish can be characterized by

7 fish that essentially have a temperature tolerance

8 that's very low, typically between 10 or 15 degrees

9 celsius, whatever that translates to Fahrenheit, and

10 that's where the growth optimum is. Essentially

11 they would seek out those in areas through their

12 entire life if they could because for every parcel

13 of food that they consume, it would ensure that they

14 grow the best.

In terms of cool water to warm

16 water, the establishment of those characteristics,

17 probably the best paper was done by a guy name

18 John Magnuson back in '79 and his colleagues, and

19 it's very difficult to establish really what a cool

20 water versus a warm water fish is because, as I said

21 in my testimony, it's more of a continuum. It's

22 really hard to pinpoint whether a fish is either a

23 cool water fish or a warm water fish.

MR. ETTINGER: Have you looked at data

L.A. REPORTING (312) 419-9292

1 on dissolved oxygen effects on mussels?

MR. GARVEY: After Beth made some

3 comments to Matt Whiles at the meeting with IAWA in

4 the spring, we did look at some of the studies that

5 have been done on mussels, yes.

MR. ETTINGER: And what did you learn

7 about that?

MR. GARVEY: We typically found that

9 the patterns are relatively similar to what we would

10 see with stream fishes or various fishes. Species

11 that tend to be more riffle-dwelling species, that

12 would be an area where there's constant flow, fairly

13 continuous flow, relatively stable system, tend to

14 be less tolerant of low DO.

And systems where species that

16 exist in the bottom of lakes and things like that

17 tend to be more tolerant of low DO, which is to be

18 expected.

MR. ETTINGER: Okay. I guess this is

20 what you're saying here, it says that freshwater

21 mussels are far less tolerant of prolonged exposure

22 to the hypoxic conditions than most fish?

MR. GARVEY: What page is that on?

MR. ETTINGER: Page 10.

L.A. REPORTING (312) 419-9292

MR. GARVEY: Let me take a look.

HEARING OFFICER McGILL: You're

3 referring to Hearing Exhibit 1?

MR. ETTINGER: Yes. I'm going to be

5 proceeding through 1.

HEARING OFFICER McGILL: Okay.

MR. GARVEY: And just to qualify, on

8 Page 9 there's the word "some" preceding the rest of

9 that sentence, so it says: Some macro invertebrates

10 such as burrowing mayflies and freshwater mussels

11 are far less tolerant of prolonged exposure to

12 hypoxic conditions than most fish.

So "some" is again the fuzzy

14 language we put in there for we're not 100 percent

15 sure what the percentage is.

MR. ETTINGER: Do you know whether

17 there's any studies of dissolved oxygen requirements

18 of the federally endangered mussel species in

19 Illinois?

MR. GARVEY: I'm not aware of any

21 studies that have been done.

MR. ETTINGER: You state here:

23 Riffles have a high dissolved oxygen flux. What

24 does that mean?

L.A. REPORTING (312) 419-9292

MR. GARVEY: It means that essentially

2 they're constantly being aerated by the movement of

3 the water across the gravel or the cobble in that

4 particular system. So if we were to take a DO

5 reading, even if the systems were fairly enriched

6 with nutrients and might otherwise be fairly low in

7 dissolved oxygen, it might have an artificially high

8 dissolved oxygen concentration because it's

9 basically being replenished with oxygen as quickly

10 as the phytoplankton take it out or the epiphyte,

11 and those things.

MR. ETTINGER: Are you aware of any

13 studies in which they've actually taken DO readings

14 of those sorts of waters?

MR. GARVEY: The knowledge on the

16 heterogeneous nature of oxygen in freshwater systems

17 is sparse at best and in streams in particular.

MR. ETTINGER: So we don't have any

19 studies in which they've actually taken that reading

20 in the riffles?

MR. GARVEY: It needs to be done.

MR. ETTINGER: Looking now at Page 13

23 towards the end of the page, it says: No

24 standardized methods for conducting acute tests with

L.A. REPORTING (312) 419-9292

1 dissolved oxygen yet exists. What do you mean by

2 that?

MR. GARVEY: Okay. In typical

4 toxicology studies what you will do is a test where

5 you have a highly replicated design where you

6 basically look for the 50 percent concentration

7 typically of a toxin that causes 50 percent

8 mortality or 50 percent of some sort of negative

9 effect, it could be if an organism passes out or

10 something like that, and essentially, that test,

11 what you would do is you would replicate each

12 concentration in that particular study and look for

13 that 50 percent point.

Typically, most oxygen studies

15 that have been done to date can be taking an

16 organism, you start reducing oxygen in its

17 environment, and you wait until it basically dies

18 and that's maybe not the appropriate way because

19 what you want to do is essentially expose each

20 organism under a relatively constant environment to

21 which it's been acclimated to really get a good view

22 as to what that effect will be and that LC50 is

23 probably the best way in dealing with that kind of

24 situation.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: Your chart -- I think

2 you have a chart in the back of your testimony here,

3 Table 1?

MR. GARVEY: Yeah.

MR. ETTINGER: Is that -- those are

6 LC50s for adult fish in a lab?

MR. GARVEY: You're talking from Smale

8 and Rabeni?

MR. ETTINGER: Yes, on Page 54.

MR. GARVEY: Yeah. Yeah, that study

11 was done. Essentially what they had was a series of

12 flasks and what they did is they took the test

13 organisms to test fish in those particular flasks,

14 no flow, okay, in those situations, there was no

15 flowing waters, and most of these are stream

16 species, so they are adapted to being in a flowing

17 water situation.

And then what you did is you

19 slowly crank down the amount of oxygen that was

20 reaching them in that particular water and then at

21 the concentration at which that fish died,

22 essentially stopped ventilating I think is what

23 their cessation point was, they would measure the

24 lethal concentration, so that was not conducted in

L.A. REPORTING (312) 419-9292

1 an LC50 standpoint.

MR. ETTINGER: So is that the type of

3 study that you were talking about for which there

4 isn't a standardized test?

MR. GARVEY: Still not the

6 standardized test that's out there. It's the best

7 that we have. It's probably more conservative in a

8 lot of respects because, one, we didn't allow the

9 organism to acclimate to its condition before we

10 can -- well, before they put it under those

11 particular conditions, and the second is that it

12 didn't experience the flow that a lot of times it

13 should experience.

MR. ETTINGER: There's a Smale and

15 Rabeni -- is that how they --

MR. GARVEY: Smale and Rabeni.

MR. ETTINGER: Smale and Rabeni?

MR. GARVEY: Yeah, I guess that's how

19 he pronounces his last name.

MR. ETTINGER: I don't know either.

Did -- they conducted this test

22 and they also wrote a report, Influences in Hypoxia

23 and Hypothermia on Fish Species Composition in

24 Headwater Streams that you refer to?

L.A. REPORTING (312) 419-9292

MR. GARVEY: Another paper, yes,

2 another published paper. It's two published papers

3 that they've looked at.

MR. ETTINGER: In that paper -- I'll

5 go ahead and highlight this and use this as an

6 exhibit and unfortunately, I don't have that many

7 copies -- the language I'm interested in here is, it

8 says: Dissolved oxygen requirements for long-term

9 persistence of streamed fishes are typically much

10 higher than those determined in laboratories of idle

11 tests and there is a need to understand why this

12 discrepancy occurs.

Are you aware as to any studies

14 that have resolved the discrepancy that were done

15 since 1995?

MR. GARVEY: No.

HEARING OFFICER McGILL: Mr. Ettinger,

18 do you want to move to have that entered as a

19 hearing exhibit?

MR. ETTINGER: First, I'll ask,

21 Dr. Garvey, is this the paper you referred to in

22 your report?

MR. GARVEY: It's one of the two,

24 yeah, I believe so.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: I'd like then to offer

2 this as Hearing Exhibit -- whatever the next one is.

HEARING OFFICER McGILL: Eight.

MR. HARSCH: Is that the entire

5 document?

MR. ETTINGER: I believe so, but if

7 you'd like the witness to go through it --

MR. HARSCH: I just -- representation

9 by you is fine.

MR. ETTINGER: I haven't tried to

11 exclude anything in it.

MR. HARSCH: Okay.

HEARING OFFICER McGILL: This is --

14 I've been handed by Mr. Ettinger an article entitled

15 Influences of Hypoxia and Hypothermia on Fish

16 Species Composition in Headwater Streams by

17 Martin A. Smale and Charles F. Rabeni.

MR. GARVEY: Is that in the

19 introduction or is that in the discussion section of

20 that paper? I don't remember.

MR. HARSCH: It's in the discussion

22 section, but I'll --

HEARING OFFICER McGILL: Here's the

24 pages, 711 through 725.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: I'm sorry. Did you

2 wish to see it again, Doctor?

THE WITNESS: Yeah. Do you mind?

4 Thanks.

MR. HARSCH: Mr. Ettinger, will you

6 provide him copies of that?

MR. ETTINGER: Certainly.

MR. HARSCH: Thank you.

MR. GARVEY: There's also a statement

10 right after they make that point and they say:

11 However, during the study, we never observed

12 extensive fish kills even at the most hypoxic sites,

13 all right, so they kind of contradict themselves

14 after they make that initial statement.

I also would like to qualify with

16 the studies that they did, depending on what --

17 using the data they use in Table 1, they developed

18 what was called a hypoxia criterion index or

19 something like that and essentially what they did

20 was a way to make predictions about what fish they

21 should see in the streams based on the lower

22 incipient dissolved oxygen concentration they

23 calculated and they actually found a very strong

24 relationship between the stream assemblages that

L.A. REPORTING (312) 419-9292

100

1 they saw and their hypoxia index that they came up

2 with the data from Table 1, so it was predictive of

3 the fish assemblages that they did see.

So when I said no, the reality is

5 is that, yes, there are probably long-term and

6 chronic effects, which I'm not 100 percent sure of,

7 but the reality is that their index did do a pretty

8 good job of predicting that, and in the report, we

9 do recommend developing a similar sort of index for

10 the state, so I just wanted to make that point.

HEARING OFFICER McGILL: Okay. Thank

12 you.

MR. GARVEY: Sure.

MR. ETTINGER: I'm sorry. You

15 recommend developing what kind of index for the

16 state?

MR. GARVEY: It's a hypoxia index.

18 What this is -- what they did is they took these

19 numbers, this critical mean dissolved oxygen

20 concentration, which was pretty much the highest for

21 Brook Silverside, which means that they're the least

22 tolerant of -- they croak the first and then the

23 yellow bullhead, which croak the last at half a

24 milligram per liter or whatever, and then if I

L.A. REPORTING (312) 419-9292

101

1 understand how they did it, they basically went out

2 and looked to see what species were present in the

3 particular stream and multiplied the relative

4 frequency within the distribution against what that

5 critical number was and then they used that to

6 create a hypoxic index essentially to see if that

7 index gave them an estimation of what fish were

8 actually in that stream at that time.

They found that it worked pretty

10 well. It's the first study in the history of

11 humankind, I think, that actually attempted to take

12 the laboratory-estimated number, the lower number,

13 and use that to make some predictions about fish

14 that are out there. Is it a perfect study? Uh-uh.

15 But it's the best that we have so far.

HEARING OFFICER McGILL: Just so I can

17 get this into the record, is there any objection to

18 entering the Smale/Rabeni report we've been

19 referring to as Hearing Exhibit 8?

(No response.)

Seeing no objection, that will be

22 entered into the record as Hearing Exhibit 8. Thank

23 you.

MS. LIU: Dr. Garvey, if I might --

L.A. REPORTING (312) 419-9292

102

MR. GARVEY: Yeah.

MS. LIU: -- the hypoxia tolerance

3 index that you were referring to, you defined in

4 your report as the critical oxygen minimum for each

5 species multiplied by its frequency of occurrence --

MR. GARVEY: Yes.

MS. LIU: -- did you define what the

8 critical oxygen minimum was?

MR. GARVEY: Yeah, it's the numbers

10 that are in this Table 1. Essentially what it was

11 was the dissolved oxygen concentration, the mean, by

12 which they reduced it in that Erlenmeyer flask that

13 that fish was sitting in at the point when it died,

14 all right?

And so the assumption is that if

16 it's high, that fish has a fairly low tolerance to

17 low oxygen, and if it's fairly low, that fish can

18 tolerate, you know, basically sucking all the oxygen

19 out of the Erlenmeyer flask and it doesn't die until

20 it's very, very low, and then they multiply that by

21 the frequency of occurrence.

MS. LIU: Thank you.

MR. GARVEY: Sure.

MR. RAO: Dr. Harvey, while you're at

L.A. REPORTING (312) 419-9292

103

1 it, could you also explain for the record what these

2 terms hypoxic and normoxic mean in the Assessment?

MR. GARVEY: That's a good question.

4 And actually, I guess I should be fairly careful

5 about using those terms because it is -- from a

6 physiological sense, it's used relative to what that

7 organism needs to be successful in its environment.

8 If it's a burrowing mayfly, that's an extremely

9 pristine fast-flowing, clear environment. That

10 might be five milligrams per liter. And it you take

11 that away from it, it's going to die, so that's

12 normoxic.

And hypoxic would be anything

14 below that. If it's a yellow bullhead, according to

15 what Rabeni and Smale have found out, you know, it's

16 going to be a much lower number. So we have to be

17 real careful about using normoxic and hypoxic as

18 being an anoxic. I think anoxic we all know means

19 there's no oxygen.

MR. RAO: Yeah.

MR. GARVEY: So, yeah, I apologize if

22 it was relatively used as a jargon term. We

23 probably should be real careful about our

24 definitions with that.

L.A. REPORTING (312) 419-9292

104

MR. RAO: Thank you.

MR. ETTINGER: Looking now at Page 16,

3 you have a study that was done on fish larvae and

4 embryos that you speak of that was adopted from

5 Chapman in 1986, which I think also has been

6 referred to as the National Criteria Document study?

MR. GARVEY: Yes.

MR. ETTINGER: Looking at -- and what

9 goes with that is Page 60 of this --

MR. GARVEY: The graph, yeah.

MR. ETTINGER: -- the graph that you

12 do. Could you -- looking at the intolerant species

13 here on this graph, this is on fish larvae and

14 embryos, correct?

MR. GARVEY: Right.

MR. ETTINGER: How long were they held

17 in this water?

MR. GARVEY: You know, these data are

19 derived from a variety of different studies. What

20 Chapman did is essentially took each of these data

21 points from particular studies that have been done

22 and I could go back and look and see which studies

23 correspond to which points, but it's not very well

24 controlled.

L.A. REPORTING (312) 419-9292

105

None of these points really come

2 from anything that was what we considered to be a

3 well-done LC50 test and, hence, the reason why our

4 analysis had to be the way it was. So to tell you

5 the honest truth, I'm not sure how many of these

6 fish were acclimated to the conditions prior to the,

7 you know, declination of the oxygen and how it

8 affected mortality.

This is really more or less just a

10 mishmash of studies and data that have been

11 collected by Chapman, and we reanalyzed with a

12 little bit more modern techniques I guess.

MR. ETTINGER: Now, as intolerant

14 species, they included northern pike, channel

15 catfish, walleye, and smallmouth bass?

MR. GARVEY: Indeed. Yeah, right.

MR. ETTINGER: Now, maybe my eyes are

18 getting bad, but as your report indicates, the early

19 life stages of intolerant species begin to decline

20 at 4.3 milligrams per liter; is that what the report

21 says?

MR. GARVEY: Yes, right. At 4.3 is

23 when you begin to see a lot of scatter in the

24 results among the various studies that have been

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106

1 done where in some studies there were no mortality

2 and in other studies there was a lot of mortality in

3 those species.

MR. ETTINGER: Well, just looking at

5 the line you drew, doesn't that begin to sink at

6 around 6.3?

MR. GARVEY: Well, it depends on your

8 analysis, okay? If we want to do something that's

9 somewhat similar to the LC50 test -- the LC50 is

10 the point where there's a 50 percent mortality, it's

11 sort of the way of coming up with sort of the middle

12 where at that point 50 percent of the organisms have

13 a high probability of surviving and 50 percent have

14 a low probability of surviving. It's kind of, you

15 know, you've got to take that --

MR. ETTINGER: It's a test that kills

17 off 50 percent and --

MR. GARVEY: Yeah. You've got a 50/50

19 probability and it's because in a lot of these -- a

20 lot of mortality studies done tox, it's a sinusoidal

21 relationship. It's a -- you know, it goes (sound)

22 and then it jumps up, you know, and it's a real fast

23 change.

Now, the two analyses that we

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107

1 did -- the first analysis, we used what's called a

2 two-dimensional Kolmogorov-Smirnov Test, which is

3 essentially a test that looks for a major change in

4 the variance within the data set. It's kind of

5 similar superficially to a 50 percent test; that was

6 4.3.

And then the other tests that we

8 did kind of gave us what was the equivalent of an

9 LC50 and kind of a -- you know, with the data that

10 we have. Again, it was around four or 4.3,

11 somewhere in that vicinity, all right.

Now, if you want to be completely

13 conservative and ensure that the organisms have

14 100 percent chance of surviving, according to this,

15 yeah, probably if you take a look at it

16 statistically, probably -- if you ever go below

17 six -- between six and five, I guess, if you take a

18 look at this, you know, you're going to drop off

19 considerably after that point.

MR. ETTINGER: Well, I did get some

21 new bifocals, but I see one square here that is for

22 intolerant fish, and unless I'm seeing it wrong, it

23 looks like the percentage survival here is something

24 under 60 percent?

L.A. REPORTING (312) 419-9292

108

MR. GARVEY: Right. It's one square

2 out of 12 squares so that, you know, who knows what

3 will cause that one square to drop at the five

4 millimeters per liter.

MR. ETTINGER: So we have one study,

6 though, that does seem to show that you can lower

7 40 percent of the larvae at five milligrams per

8 liter?

MR. GARVEY: Yeah, that cluster before

10 it drops dramatically at four, all right? So, yeah,

11 I mean, there's a big cluster up there. I don't

12 know of any analytical techniques that are out

13 there -- I mean, there probably are -- that would

14 allow me to figure out where we are at the plateau

15 and then when it drops dramatically, hence, the

16 reason why toxicity folks usually -- toxicologists

17 look at LC50 and EC50.

MR. ETTINGER: And that's based,

19 though, on I'm assuming you're going to kill off

20 50 percent of the organisms?

MR. GARVEY: Yeah. I mean, that's --

22 yeah.

MR. ETTINGER: As a biologist, do you

24 think it would be tolerant for us to adopt standards

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109

1 that would kill off 50 percent of the organisms?

MR. GARVEY: Well, that occurs at

3 about four, and what we do is we recommend no less

4 than five for when we expect most of the early-life

5 stages of species to be out there.

MR. ETTINGER: Most of the early-life

7 species?

MR. GARVEY: To qualify, I have to say

9 most.

HEARING OFFICER McGILL: I just want

11 to make clear if we haven't been, you're referring

12 to Page 60 in Hearing Exhibit 1?

MR. ETTINGER: Yes. I'm sorry.

14 Page 60 of Hearing -- I've been discussing Page 16,

15 which also discusses Page 60, and Page 60 is

16 Figure 1, which is referenced on Page 16.

HEARING OFFICER McGILL: Thank you.

MR. ETTINGER: I'm sorry if I wasn't

19 clear.

On Page 17, you discuss various

21 growth studies. How do they do those studies?

MR. GARVEY: Again, it's a total

23 amalgam of studies that JRB Associates summarized

24 using data from various peer-reviewed published

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110

1 studies. Typically, what happened is is they didn't

2 control any of the variables very well and looked at

3 oxygen -- DO in the environment and then tried to

4 correlate that with changes in growth.

Unfortunately, there's a lot of

6 other factors that are occurring particularly in a

7 natural environment on growth that will also

8 correlate with oxygen changes, so it's very

9 difficult for that particular group of studies where

10 we saw differences that might occur between four and

11 five to be -- I don't know. If I would have to put

12 a lot of confidence in that data, I wouldn't.

MR. ETTINGER: Well, do we have any

14 good studies we're relying on here or do they all

15 have problems?

MR. GARVEY: I think all studies have

17 problems, however, I do believe that the majority of

18 data that we're basing our lethal estimates on are

19 pretty good. The chronic data -- as we say in the

20 report and as I said in my testimony, chronic data

21 are lacking.

MR. ETTINGER: Okay. Further on in

23 the same page it says: Brake -- I don't know what

24 Brake's first name was -- found that the growth of a

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1 largemouth bass was reduced by as much as 34 percent

2 of dissolved oxygen concentrations, four to five

3 milligrams per liter that had little effect in the

4 laboratory.

Have you heard any studies that

6 contradict the implications of that since then?

MR. GARVEY: Again, the problem is

8 that it's just not well controlled because we don't

9 know what other covariant factors are occurring in

10 the environment to affect those growth results.

11 Temperature could be a totally logical one of those

12 factors because as temperature increases, dissolved

13 oxygen concentration declines.

MR. ETTINGER: I'm sorry, what did you

15 say, as temperature --

MR. GARVEY: Increases typically

17 dissolved oxygen declines. It also negatively

18 affects fish in terms that if they're reaching what

19 would be their maximum limit for tolerance of

20 temperature. We're not sure if it's a temperature

21 affect or a dissolved oxygen affect that's affecting

22 the growth results in those particular studies.

It's very difficult to basically

24 do these studies. That's one of the reasons why

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1 they just -- chronic studies have not been done.

MR. ETTINGER: Is it safe to say that

3 if you have high temperatures, that you would be

4 more concerned about dissolved oxygen levels?

MR. GARVEY: No. I would be more

6 concerned about the effect of the high temperature

7 on the fish. I mean, I would assume that there

8 might be a relationship between the two, but I'm not

9 100 percent sure I can tell you what those are

10 because the temperature itself is going to have a

11 negative effect on fish if you go past what they

12 have as their optimal temperature for growth.

MR. ETTINGER: Well, unfortunately,

14 we're not going to be able to be 100 percent sure

15 here.

MR. GARVEY: Right.

MR. ETTINGER: All things -- other

18 things being equal, if you had a set of fish that

19 you knew were getting close to their temperature

20 tolerance limit, would you be more concerned about

21 dissolved oxygen than otherwise?

MR. GARVEY: Typically, if the system

23 is aerated and dissolved oxygen is relatively high,

24 it will be fine; however, if the temperatures are

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1 high, what will happen in that system? The capacity

2 of that system to hold dissolved oxygen will decline

3 by a large amount and so you have the covariant

4 environmental effect of temperature on dissolved

5 oxygen that you have to contend with.

MR. ETTINGER: Well, I'm still

7 confused. You told me the Brake study might be

8 defective because they hadn't controlled for heat.

9 Are you telling me that they failed to control for

10 heat at where are known to be lethal heat levels?

MR. GARVEY: I have no idea if it was

12 near lethal levels, but it might have been at a

13 level that they weren't forging enough food to

14 basically offset the metabolic cost of being at a

15 high temperature. The thing is is that I'm not

16 sure, because I honestly don't know all the

17 parameters that basically were involved in that

18 particular study, hence, the reason why it's out

19 there.

But if I say that, you would ask

21 me to come up with a chronic study that I trust at

22 this stage in the game. I don't think there are any

23 out there honestly. It needs to be done, but it

24 hasn't been controlled well.

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MR. ETTINGER: So there are no chronic

2 studies of dissolved oxygen that you can trust?

MR. GARVEY: I think at this stage of

4 the game, I would be very cautious about

5 interpreting chronic data.

MR. ETTINGER: And there's no

7 standardized acute studies at this point?

MR. GARVEY: Yeah, but I would still

9 trust the acute data better than I would trust the

10 chronic data because there is at least some modicum

11 of control in the studies that were done. They were

12 either done -- conducted at temperatures that were

13 done in a fairly controlled situation. And the

14 Rabeni study has pretty good merit because it did

15 give us a fairly decent estimate of fish

16 associations in the environment.

MR. ETTINGER: Okay. Let's go back

18 and talk about your Ohio tributary --

MR. GARVEY: Sure.

MR. ETTINGER: -- observations again.

You've got isolated dissolved

22 oxygen data that was taken when you went out in the

23 field; is that correct?

MR. GARVEY: Right.

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MR. ETTINGER: You don't have anything

2 like continuous dissolved oxygen data for those

3 studies, do you?

MR. GARVEY: No, we do not.

MR. ETTINGER: Was it taken more than

6 once in a day?

MR. GARVEY: Yeah. It was typically

8 taken -- it was a one-point estimate taken at the

9 surface when we were out sampling fish at that

10 particular area.

MR. ETTINGER: And dissolved oxygen

12 levels can vary between the surface and the --

MR. GARVEY: Oh, they do and they're

14 much lower on the bottom. The problem is my

15 students didn't take an intermediate level, which

16 is -- you know, we recommend in the report it's

17 about 66 percent depth. That would be the most

18 appropriate place, probably the most accurate

19 assessment of what oxygen is really doing in that

20 particular stream.

MR. ETTINGER: Now, these streams that

22 you studied in this Ohio tributary study, are these

23 pristine streams?

MR. GARVEY: You know, I would

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1 consider them, some of them -- Lusk Creek, for

2 example, is one stream that is believed to be a

3 pretty nice stream and one that the state does tout

4 as being -- I wouldn't call it pristine, but a

5 stream that's pretty well regarded. Big Creek is

6 another one that folks regard.

So yeah, I mean, I guess the

8 majority of the streams would be considered

9 relatively unaffected by what we would consider to

10 be negative effects of humans. A lot of these are

11 in forested watersheds near the Shawnee National

12 Forest. So yeah, I guess we would have to consider

13 them to some extent being pristine.

MR. ETTINGER: And you have data

15 showing the full assemblage of fish that are present

16 in these streams?

MR. GARVEY: Not the full assemblage.

18 Basically, the data that we have are for

19 electrofishing, trap netting and -- two kinds of

20 electrofishing, one that targets benthic fishes and

21 one that targets fish near the surface. To get a

22 real good estimate, you would have to go out

23 probably with an electric seine. So are we picking

24 up all the species? No, we're not.

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MR. ETTINGER: Turning now to Page 20,

2 it says here: These studies and other reviewed by

3 Chapman, 1986, indicate a range of lethal minima

4 from .6 for the midge -- and I can't pronounce the

5 name -- for an ephemerellid mayfly and a dissolved

6 oxygen 96-hour LC50 concentration of between three

7 and five for about half of all insects examined.

MR. GARVEY: Yeah, it says three and

9 four milligrams per liter.

MR. ETTINGER: I'm sorry. What did I

11 say?

MR. GARVEY: Five, but, yeah, I

13 understand.

MR. ETTINGER: So that's the LC50

15 you're saying is that -- the study is indicating

16 that the LC50 for half of the insects is between

17 three and four?

MR. GARVEY: Yes.

MR. ETTINGER: So at those dissolved

20 oxygen levels, half of the insects die?

MR. GARVEY: Right. You have to take

22 this into consideration of where these organisms

23 live in the environment. Midges -- the midge that

24 they're talking about, the .6 milligrams per liter,

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1 is an -- would live in an environment that's

2 typically low in oxygen. It would be a typically

3 low-flow area and that's where they basically have

4 their early life stages.

The mayflies typically will be

6 found in riffle areas with high flow where we

7 wouldn't expect to see low oxygen. And in our

8 report, we recommend taking the oxygen measurements

9 at the place where the midges would be, not where

10 the mayflies would be, which we would consider to be

11 the most conservative place to measure oxygen.

MR. ETTINGER: Okay. You recommend

13 that. How do you expect that recommendation to be

14 implemented?

MR. GARVEY: I hope the Illinois EPA

16 will basically adopt that in their implementation

17 guidelines. I mean, that's not my job. It's just a

18 recommendation that Whiles and I made.

MR. ETTINGER: But you hope IEPA will

20 do that?

MR. GARVEY: Well, if they're going to

22 follow our report, sure.

MR. ETTINGER: Okay. Page 20 on the

24 last sentence it says: Similarly, tolerance of

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1 hypoxia ranges dramatically among freshwater

2 mussels, a group that is of special concern because

3 population declines are widespread and many species

4 are now threatened or endangered.

Have you seen any studies that

6 would enable us to estimate the dissolved oxygen

7 needs of threatened or endangered mussels?

MR. GARVEY: You know, it's very --

9 obviously, working on pallid sturgeon, an endangered

10 species. It's extremely difficult to do any

11 physiological work. So typically what you have to

12 do is find a surrogate species that's usually in the

13 same genous and do the studies on that.

But the big finger-crossing

15 that -- that genous is going to give you some

16 estimate of what that endangered species needs.

17 Studies that have been done out there -- and I'm not

18 a mussel expert, so this would be more of

19 Matt Whiles' side of things -- but the studies that

20 have been done out there again suggest that, like it

21 is for other macro invertebrates, the species that

22 exist in high-flow environments are going to be the

23 ones that are less tolerant of low dissolved oxygen

24 concentration.

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They're also very intolerant of

2 siltation and other effects that are going to happen

3 due to habitat degradation. It all revolves around

4 flow. And the species that we would expect to find

5 in the places where we would be taking dissolved

6 oxygen concentrations probably are relatively

7 tolerant of low DO.

MR. ETTINGER: What do you mean by we

9 would be expecting to take?

MR. GARVEY: That would again be in a

11 low-flow area within a stream, a cooler-run area.

MR. ETTINGER: So that's your

13 recommendation?

MR. GARVEY: Our recommendation would

15 be taking the dissolved oxygen continuous

16 measurements in those areas with the belief that it

17 would be the most conservative estimate of dissolved

18 oxygen within that particular stream.

MR. ETTINGER: Is it your

20 understanding that the proposal is limited to those

21 areas, that only -- that the dissolved oxygen

22 standards that we're talking about, three and five,

23 in August would only apply to the bottoms of lakes

24 and other areas that you would expect to have low DO

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1 levels?

MR. GARVEY: The understanding is is

3 that that would be the most conservative place to

4 estimate oxygen because that would be the place --

5 and based on just our physical understanding of how

6 stream systems work and, again, you know, we can

7 talk with other experts in the field on this,

8 Matt Whiles being one of them -- but the reality is

9 that if oxygen is 3.5 milligrams per liter in that

10 part of the stream, that would be the place we

11 expect the greatest sag. It's going to be higher

12 likely in other parts of the stream such as the

13 riffle area where we have lots of oxygen exchange.

MR. ETTINGER: Right. But if I

15 measured the riffle area and found that it had a

16 reading of 3.6, would we have a dissolved oxygen

17 violation under the standard that's being proposed?

MR. GARVEY: Well, I would hope that

19 with the Illinois EPA's implementation procedures

20 they wouldn't be measured there, because I think

21 that the greater risk is going to that ripple area

22 and finding an abnormally high -- not abnormally,

23 but a high DO level when there's, in fact, an

24 impairment in the stream.

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If you went down the stream and

2 found a low-flow area within that particular

3 segment, that's where you're going to find the DO

4 problem. You're probably going to miss in the

5 riffle area because that's where you're going to

6 have an artificially inflated value for the water.

7 Matt Whiles and I went over that over and over

8 again, believe me.

MR. ETTINGER: Turning now to Page 33,

10 it states -- this is the last sentence in the first

11 paragraph: Because the Illinois EPA designation

12 process requires that biologists account for other

13 site-specific factors such as habitat quality and

14 biotic integrity indicators, the likelihood that a

15 system would be considered impaired solely as a

16 function of low dissolved oxygen concentration is

17 low.

Is that your understanding of the

19 IEPA regulatory process?

MR. GARVEY: Yes, limited as it may

21 be. But yeah, I mean, I think that that was our

22 understanding when we took a look at the various

23 305(b) documents that we read and we essentially --

24 that was our understanding, and it was based

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1 primarily on IBI and MBI estimates in that

2 particular stream.

And if it said that there was an

4 impairment, then they would go and look to see if

5 there's water quality parameters that have been

6 exceeded and dissolved oxygen would be one of those.

MR. ETTINGER: And it's your

8 understanding that typically water would not be

9 listed as impaired simply because they found a low

10 dissolved oxygen level if the stream otherwise had a

11 healthy biotic integrity?

MR. GARVEY: You know, that's --

MR. HARSCH: That's a legal

14 conclusion.

MR. GARVEY: Yeah. I'm not --

MR. ETTINGER: Well, it's his legal

17 conclusion in the report.

MR. GARVEY: My conclusion is, and

19 Whiles and I will state this over and over again and

20 I've stated it in my testimony, we focus on the

21 biotic integrity indices and not on water quality

22 parameters.

MR. ETTINGER: I guess my question is

24 just is it your understanding now that IEPA does

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1 focus on the biotic integrity?

MR. GARVEY: It's my understanding,

3 and I applaud the state for doing so.

MR. ETTINGER: On Page 35 you state:

5 Our recommendations generally adopt the standards of

6 Chapman for warm water systems with some

7 modifications based on research that has been

8 completed since this document; see Table 4.

Is Table 4 the research that was

10 completed since this document?

MR. GARVEY: No. Table 4 is just an

12 example of the calculations we use.

MR. ETTINGER: Okay. So what is the

14 research that you're referring to there that was

15 completed since the Chapman document?

MR. GARVEY: The research that's

17 summarized in our report. I mean, I can go through

18 and pick all the various studies that were there.

MR. ETTINGER: Oh, that's there, okay.

MR. GARVEY: Yeah. I mean, that was

21 sort of our conclusions from our review heavily

22 weighted on the Rabeni study being that it's

23 probably the best comprehensive association between

24 laboratory-derived and field data.

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MR. ETTINGER: Okay. Now, you decide

2 not to use the 30-day moving averages and why is

3 that?

MR. GARVEY: Thirty days is not going

5 to give us a good estimate of the fluctuations in

6 oxygen that probably are meaningful to the organisms

7 that live in a particular stream. And the example

8 that I would give is the fact that if we looked at a

9 30-day running average and half the days we had very

10 high dissolved oxygen concentrations and half the

11 days we were near what would be the minimum, we

12 would still get a very high 30-day mean.

It doesn't mean anything to the

14 organisms because there was a chronic effect of

15 oxygen for half of that period, 15 days, and so we

16 kind of said 30 days just doesn't seem like it's

17 particularly meaningful. If we have to have a

18 seven-day average, which is a moving average through

19 time, that's going to more reasonably capture the

20 environment that that organism is experiencing.

MR. ETTINGER: The 30-day average,

22 though, of 5.5 would be higher than your seven-day

23 average that you're proposing?

MR. GARVEY: Right. But you can still

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1 get a 5.5 where you still have half the day as being

2 very low and half the day as being very high and so

3 it just didn't seem as if it was a meaningful

4 target, rather, we would want to have a more

5 meaningful target of a seven-day average.

MR. ETTINGER: Well, you would agree,

7 though, that if you had both the seven-day average

8 and the 30-day average that Chapman suggests, that

9 you would have an overall more stringent dissolved

10 oxygen standard than you would have if you simply

11 eliminate the 30-day standards?

MR. GARVEY: You know, I would argue

13 that the 30-day standard still isn't meaningful. I

14 mean, you can have it, but I don't think it's going

15 to tell you anything about what the organisms are

16 experiencing in the environment. So I guess the

17 answer to your question is no, I don't think it's

18 going to be any more stringent.

MR. ETTINGER: Because it's not

20 meaningful?

MR. GARVEY: It's not meaningful.

MR. ETTINGER: I mean, you would agree

23 mathematically if I have to hit an average that's

24 higher than the other, that it is more stringent in

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1 a sense?

MR. GARVEY: Mathematically because

3 it's a higher average to go after?

MR. ETTINGER: Yeah.

MR. GARVEY: I can still see ways that

6 you can violate it, so I don't know. I haven't

7 thought about it.

MR. ETTINGER: Well, Chapman also has

9 your seven-day minimum, doesn't he?

MR. GARVEY: The seven-day minimum,

11 uh-huh.

MR. ETTINGER: Okay.

MS. LIU: Mr. Ettinger, would you mind

14 if I followed up on your question?

MR. ETTINGER: (Indicating.)

MS. LIU: I was just wondering if you

17 could explain what the drawbacks might be of having

18 both the seven-day and 30-day together?

MR. GARVEY: Drawbacks?

MS. LIU: Uh-huh. Would it be more

21 expensive to sample or --

MR. GARVEY: Yeah, I mean, I don't

23 know what the -- I guess the thing is is that when

24 we came up with it, we never thought about the

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1 drawbacks. We just thought about the fact that it

2 didn't seem as if it was meaningful from the

3 perspective of giving us an idea.

I think that 30-day comes from

5 30 days post hatching as what they suggest as being

6 meaningful for early life history stages, so I don't

7 know. I wouldn't say that -- you know, I don't know

8 what the drawbacks are.

MR. RAO: Just as a follow-up, does

10 Chapman discuss why he recommended that?

MR. GARVEY: Any one of those

12 standards?

MR. RAO: (Indicating.)

MR. GARVEY: It's usually related to

15 trying to avoid either acute minimum where below

16 that point we would expect to start seeing a great

17 deal of mortality and that's how the mean -- the

18 minimums for the daily on the daily basis. The

19 30-day and seven-day averages, again, we were more

20 or less trying to target sort of the middle of what

21 we would see in terms of the fluctuating oxygen on a

22 daily or a weekly basis and then trying to target

23 that to avoid any impairment of fish production, so

24 more or less I think based on our understanding, as

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1 limited as it is, of what chronic effects on growth

2 and reproduction would be in these particular

3 systems. It was limited data then and it still is

4 limited.

MR. HARSCH: I might state for the

6 record, in our meeting with Illinois EPA and USEPA,

7 IAWA explained why it was that we did not propose a

8 30-day average as we did in the petition and

9 indicated that if that were a major point of issue

10 with USEPA, we would be happy to see it included in

11 the proposal. But we, frankly, don't, based on our

12 consultant's recommendations that you've heard

13 today, believe it adds anything and would only

14 unduly complicate the implementation of these

15 regulations.

MS. LIU: Can you comment on how you

17 think it would complicate the --

MR. HARSCH: I think how you would

19 sample for it, that kind of parameter.

MR. ETTINGER: It would complicate the

21 IEPA implementation regulations?

MR. HARSCH: Well, sure.

MR. ETTINGER: On Page 34 of the

24 National Criteria Document, do you have that in

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1 front of you?

MR. GARVEY: Yes, I do.

MR. ETTINGER: And that is -- I've

4 forgotten what exhibit. That's one of your --

HEARING OFFICER McGILL: Hearing

6 Exhibit 2.

MR. ETTINGER: Okay. Hearing

8 Exhibit 2.

Another aspect of the National

10 Criteria Document speaks under warm water criteria

11 and it has early life stages -- do you see at the

12 top -- and then there's a little footnote and the

13 footnote says: Includes all embryonic and larval

14 stages and all juvenile forms to 30 days following

15 hatching.

MR. GARVEY: Yeah.

MR. ETTINGER: Does your proposed

18 standard do that?

MR. GARVEY: I think, as I mentioned

20 in my testimony, the reality is is that it is not

21 entirely consistent with the NCD in this case.

MR. ETTINGER: Okay.

HEARING OFFICER McGILL: Which page of

24 the NCD are you looking at now?

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MR. ETTINGER: I'm sorry, Page 34.

HEARING OFFICER McGILL: Okay. Thank

3 you.

MR. ETTINGER: Well, let's go to your

5 prefiled testimony for a second. I've been working

6 through this other stuff. But you speak there about

7 your discussion with the ILAFS and you say: I

8 agreed with the primary conclusion of the group that

9 a set of regional standards are needed for Illinois.

What would a set of regional

11 standards look like?

MR. GARVEY: I think a set of regional

13 standards would have to depend on the input of

14 various agencies in the state that have a lot of

15 experience in their particular regions. There's an

16 eco-region approach that could be used in that the

17 state has been divided up into various eco regions

18 based on sort of the biology of the biotic

19 community, I guess, that you would expect to see in

20 those particular parts of the state. That might be

21 a reasonable starting point.

If you try to superimpose that on

23 top of the geology and the geography of the state,

24 sometimes they don't quite match up, but that might

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1 be a good, good starting point. Obviously, there's

2 a north/south gradient within the state that's going

3 to affect temperatures and timing of spawning and

4 that kind of thing. It will affect fish and other

5 organisms. That's another way to think about it.

All those factors I think need to

7 be taken into account from both at a

8 regional-specific basis and also from the

9 perspective that there might be various streams that

10 you might want to have special protection for, not

11 for just dissolved oxygen, but for the whole suite

12 of water quality parameters that you basically want.

13 And I think that Matt Whiles and I feel very

14 strongly that that's where the state should be

15 moving.

MR. ETTINGER: Could you elaborate on

17 that a little? I mean, you said that you and Whiles

18 say there should be special standards for what kind

19 of streams? I'm sorry.

MR. GARVEY: Exceptional streams. And

21 from the exceptional standpoint, these would be

22 streams that probably have very little impact up to

23 this point in that they should be afforded special

24 status in terms of protection. Now, again, if you

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1 were to ask me about dissolved oxygen within those

2 particular systems and whether you would see them

3 staying within what is the current state standard, I

4 would probably argue that they probably still

5 violate the current state standard.

But, again, until someone shows me

7 data or I have the data in my hand, it's tough to

8 tell you one way or the other.

MR. ETTINGER: Well, there are streams

10 that get groundwater all the time, aren't there?

MR. GARVEY: Groundwater inundation is

12 typically low in oxygen, very low, so you need to be

13 real careful about that because that's actually a

14 real problem for a lot of aquatic organisms.

MR. ETTINGER: Okay. Do you have an

16 understanding of what site-specific standards would

17 be?

MR. GARVEY: You know, I think that

19 there's been some talk about finding various

20 segments of stream, the various stream reaches and

21 giving them a very -- you know, a designation based

22 on I guess what the expectations are for aquatic

23 use.

Again, I think we would need more

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1 input from various folks, both environmental groups,

2 agencies, scientists in the state to come up with a

3 good goal, a good set of goals for doing that.

MR. ETTINGER: Well, have you made

5 site-specific determinations as to what species are

6 present in various waters in Illinois in connection

7 with offering this study?

MR. GARVEY: I don't think those data

9 are necessarily available in large proportion. I'm

10 going to have access to that in the next two months,

11 some of those data. But a comprehensive data set,

12 it's not available in the state at this point in

13 relation to dissolved oxygen. I could probably give

14 you a species list of fishes in various stream

15 segments based on EPA's Intensive Basin Survey.

And, of course, we have pretty

17 good records with the Illinois Natural History

18 Survey, but there's nothing superimposed on top of

19 the habitat or water quality and that's the problem.

MR. ETTINGER: Okay. Turning now to

21 Page 38 again of your assessment document --

HEARING OFFICER McGILL: It's Hearing

23 Exhibit 1.

MR. ETTINGER: Yes, Hearing Exhibit 1.

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You referred to this term earlier,

2 but you talk here to -- you refer here to as

3 manipulatable discharges?

MR. GARVEY: Right.

MR. ETTINGER: What is meant by

6 manipulatable dischargers?

MR. GARVEY: I think we meant -- that

8 means where there's a point discharge, probably from

9 a wastewater or an industry or whatever, that is in

10 that particular area in which the discharge -- the

11 amount of discharge or the quality of discharge can

12 be manipulated in some fashion.

MR. ETTINGER: And it says: As a

14 result, two areas in proximity to manipulatable

15 discharges should be monitored closely, e.g.,

16 continuously?

MR. GARVEY: Yeah. I definitely think

18 you should have continuous monitoring in those

19 particular areas.

MR. ETTINGER: Continuous monitoring

21 in any manipulatable area?

MR. GARVEY: Yeah, I think that would

23 be reasonable to ask.

MR. ETTINGER: How do you think that's

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1 going to come about?

MR. GARVEY: You know, obviously, when

3 Whiles and I put this together, we thought, let's

4 just say it and see what happens. And then -- I

5 don't know, you know. You can talk to the folks

6 that I've talked with at IAWA and they seem to be

7 very interested in complying with this particular

8 set of suggestions.

MR. ETTINGER: Well, it's saying that,

10 you know, this is a safe proposal. Are you counting

11 or thinking that IEPA is going to set up

12 implementation rules that are going to establish

13 monitoring like this?

MR. GARVEY: I think that they should

15 move toward that if they possibly can particularly

16 in the areas where there's manipulatable discharges,

17 if this isn't being accomplished by the dischargers

18 themselves, which there seems to be compliance -- a

19 suggestion of compliance already at this stage.

MR. STREICHER: Albert, in our

21 meetings with USEPA and IEPA, we went so far as to

22 suggest that that would be a likely NPDES permit

23 addition or some parameter or some addition to our

24 operating scheme at a plant.

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MR. ETTINGER: Well, these standards

2 would only be applicable in areas in which there was

3 such continuous monitoring?

MR. STREICHER: Well, one of the

5 suggestions was that enforcement was a concern and

6 we felt that may eliminate those concerns.

MR. HARSCH: But your point is where

8 there are two or more manipulative discharges. You

9 have to establish the likelihood of in fact there

10 being two manipulative discharges at a given

11 location in close proximity. A POTW discharge is

12 not in and of itself a manipulative discharge.

MR. GARVEY: Okay. That's where I'm

14 kind of -- I mean, my understanding is of a

15 discharge where you can manipulate the oxygen that's

16 coming in that particular area. Is that -- I'm not

17 sure if we're clear about --

MR. ETTINGER: Well, let's go on.

MS. LIU: Mr. Ettinger, could I

20 follow-up along those lines?

MR. ETTINGER: Yes, please do.

MS. LIU: In your assessment, you do

23 recommend that there be special restrictions for

24 areas that do have manip -- I can't say the word --

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1 discharges --

MR. GARVEY: Manipulatable. Yeah,

3 it's hard for me too.

MS. LIU: (Continuing) -- and you

5 suggest limiting the occurrences of daily minimum of

6 3.5 milligrams per liter to no more than three weeks

7 per year or using a one-day minimum value of

8 4.0 milligrams per liter?

MR. GARVEY: Yeah, that's our

10 suggestion, right. And we also suggest that the

11 monitoring needs to be done in two areas below that

12 manipulatable discharge, one at the mixing area and

13 one at some area which we do not say. That would be

14 up to the -- during the implementation of this to

15 decide on where to take that next measurement below

16 the zone of mixing where there isn't a lot of

17 control over what DO is going to be doing at that

18 area. It's going to be up to other factors,

19 including the affect of that discharge upstream.

MS. LIU: I noticed that although you

21 recommended those things, they didn't actually show

22 up in the proposal. Is that something that you're

23 planning to propose to the EPA to put into their

24 implementation procedures?

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MR. GARVEY: You know, Matt Whiles and

2 I talked about this. I think -- our understanding

3 is and that's, obviously, something to be discussed

4 here is -- the belief would be that that would end

5 up in the implementation of this, you know, when

6 IEPA is figuring out how to do this. So our hope

7 would be that this would be included.

MS. LIU: Is it IAWA's intent to

9 propose something to the agency in terms of

10 implementation procedures or are you relying on the

11 agency to come up with --

MR. STREICHER: No. We were hoping to

13 work with the agency when they developed those

14 implementation procedures.

MS. LIU: Okay. Thank you.

MR. ETTINGER: Okay. That pretty much

17 finishes another line I was going to do and it's

18 very helpful.

So we have -- unusually large DO

20 fluctuations are symptomatic of eutrophication and

21 in these cases the minimum should be the focus of

22 monitoring and assessment activities.

And my question was, what would

24 cause unusually large DO fluctuations?

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MR. GARVEY: It would basically be a

2 situation probably in a highly productive system

3 where you have a fairly high amount of phosphorus

4 loading and there's a high biomass of -- going back

5 to what you said at the very beginning of your

6 questioning -- algae out there or aerophyte.

7 Marcrophytes can do it too.

MR. ETTINGER: Okay. And that should

9 be the focus of monitoring and assessment

10 activities?

MR. GARVEY: (Indicating.)

MR. ETTINGER: Okay.

MR. RAO: I have a follow-up question.

MR. ETTINGER: Please do.

MR. RAO: In the petition of Page 3,

16 there's a statement that says: With the structure

17 of this proposed standard, more extensive DO

18 monitoring will be required than with the existing

19 standard and the monitoring requirements will be set

20 up in Illinois EPA's implementation rules and this

21 may require the use of continuous monitors.

Basically, I want to know, you

23 know, what's the impact on IEPA in terms of their

24 implementing these rules if the Board adopts these

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1 standards, will there be a cost impact for them to

2 upgrade their monitoring network?

MR. HARSCH: We believe, of course,

4 there will be, but the best witnesses answer to that

5 question are probably sitting here today, either

6 Bob Mosher or Tobi.

HEARING OFFICER McGILL: Well, we can

8 swear in an agency witness if you'd like to tackle

9 that now or I think that the general understanding

10 we had would be that the agency would present

11 testimony at the August hearing.

MR. FREVERT: I have no problem

13 answering.

HEARING OFFICER McGILL: Okay. Would

15 you go ahead and state your name and position with

16 the agency?

MR. FREVERT: Toby Frevert with the

18 Illinois EPA, manager of Water Pollution Control.

HEARING OFFICER McGILL: Could you go

20 ahead and swear in the witness, please?

(Witness sworn.)

MR. FREVERT: I guess I'd like to start

23 with I'm a little bit confused in the last few

24 minutes at your biological witnesses suddenly being

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1 asked a lot of permitting, implementation, and

2 enforcement type questions. I can try to rescue him

3 from that. I don't think it's appropriate to ask

4 him. I --

MR. RAO: Oh, I assumed the question

6 was for the panel. It's not for just for

7 Dr. Garvey.

MR. FREVERT: Well, I don't think it's

9 appropriate to ask --

MR. GARVEY: And, Tobi, we did make

11 those recommendations of the Assessment just to be

12 fair, but, you know, that's based on sort of what

13 our understanding is.

MR. FREVERT: Okay. That's fine.

15 We're here to listen and learn what the issues are

16 and figure how we can help the Board put together a

17 complete record and make the best decision and in

18 that regard, we'll get back to future hearings and

19 try to address the things that we hear today.

But I want to make sure everybody

21 understands, at least from my viewpoint, that the

22 focus today and perhaps in the future ought to be

23 primarily on what should the dissolved oxygen

24 condition of the Illinois waters be. That's a

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1 fundamentally different question in my mind than how

2 are we going to make the day-to-day implementation

3 and management and monitoring and enforcement

4 decisions.

I mean, there's a lot of heavy

6 lifting coming after that, but the ultimate purpose

7 of the water quality standards is to define the

8 condition of the rivers and lakes and streams and

9 that's what's being proposed, the water quality

10 standard. I don't believe they're proposing a

11 mandatory operating practice on the agency or the

12 Board.

So some of that's got to come in

14 in terms of the economic impact, but I don't believe

15 we're prepared to address that in detail today. I

16 think what I want to hear today is as much of the

17 fundamental biology and science of the standard

18 itself and what the ideal conditions as best we

19 understand it with today's science ought to be.

Once we know that, we can discuss

21 the ramifications of the day-to-day practices a

22 little more intelligently. And I think Roy came

23 here with his experts focused on the biology and the

24 science of what ought to be in the stream rather

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1 than how it impacts 1021 North Grand Avenue East in

2 Springfield, Illinois.

We'll get to that and help you

4 deal with that later, but I'm not prepared to go

5 into any detail today. My eyes are rolling and I'm

6 thinking we're speculating about all sorts of

7 exotic, expensive monitoring requirements and

8 permitting conditions and other things that have

9 incredible secondary and tertiary impacts, so don't

10 ask me to answer that today.

MR. JOHNSON: Which they have to be

12 answered eventually, Tobi.

MR. FREVERT: I'll get you there, Tom,

14 as best as I can.

MR. RAO: Just to, you know, get it

16 clear on the record, the only reason that question

17 came up was they had some statements in their

18 prefiled testimony and like you said, the Board

19 needs economic information as to what the impact on

20 this is if we allowed the standard. That's why I --

MR. FREVERT: Okay. And I'm not saying

22 it's inappropriate. I'm just saying I'm not sure

23 these are the right witnesses to get hit with those

24 questions.

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MR. RAO: Okay.

MR. ETTINGER: Well, I guess I have

3 two thoughts on that: First of all, I do think it's

4 totally inappropriate at this point to pick on Tobi

5 because he, obviously, is hearing some of this for

6 the first time and he probably hasn't thought out

7 the cost of various things that are going on here.

However, although we do have one

9 biologist here and others who have biologist

10 expertise, there are elements of their testimony

11 which go to the TMDL system, regulatory

12 requirements, permitting, and so this isn't simply

13 about biology. Moreover in the past, the Board has

14 recognized that you have to consider an

15 implementation of a standard in the context of the

16 standard.

This was done in the GLI rules,

18 this was done in the ammonia rules, this was done in

19 the antidegradation rules, and so the idea that we

20 can isolate the implementation from the standard is

21 not something that the Board has ever accepted

22 before or at least not in my more limited experience

23 than Roy's.

But while they are developing very

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1 interesting biology here, I don't think this is

2 simply a scientific panel here to look at biology

3 today. We're for better or worse looking at a wider

4 range of topics and we've had to pursue some of

5 those unless, you know, we'd like to pull all the

6 portions of the testimony here that deal with

7 regulatory matters, such as TMDLs and permit limits

8 and other things like that, which are part and

9 parcel of the justification for the proposal today.

MR. JOHNSON: Now it's time to swear

11 in Albert.

MR. ETTINGER: No. That was a speech,

13 not testimony.

MR. HARSCH: I would move to strike it

15 then.

MR. FREVERT: I'm not opposed to

17 addressing any and all of these issues in the course

18 of the rulemaking, and I want to hear what the

19 issues are and be prepared to deal with them. We

20 will offer testimony at the right time. We will try

21 to address everything that we can, but some of the

22 questions I've heard asked of these witnesses, quite

23 frankly, I would have to discuss with my own staff

24 to give you what I think is a pretty knowledgeable

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1 answer in being responsible to run this program.

For people that haven't run the

3 program, to get hit with this cold, I'm not sure how

4 beneficial this particular transcript is going to be

5 other than identifying what those issues are so we

6 can follow up on them.

HEARING OFFICER McGILL: Well, yeah,

8 exactly, your latter point. If we can get the

9 question on the record, that gives the agency a

10 heads-up as to what we might be looking for in

11 August. And as I understand it, I mean, IAWA is the

12 rulemaking proponent here.

Mr. Harsch, you don't have any

14 additional witnesses you were going to be offering;

15 is that correct?

MR. HARSCH: Not today, but I would

17 like -- since Albert made a little speech -- to

18 respond a little bit.

IAWA has started this process. We

20 have hired -- they've hired with their own funds, the

21 recognized experts in the area, developed the

22 report. We're bringing in witnesses. We've filed

23 the proposal. We've had stakeholder meetings and

24 will continue to do that.

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We are beginning the process to

2 amend the standard in conformance with 303(c) of the

3 Clean Water Act and the points that Tobi has made

4 are very good points. The questions that Albert is

5 asking are important questions to the extent that

6 they -- he has to address them to our witnesses

7 because they're the only people testifying here

8 today is fine.

I do agree that the -- some of

10 those questions get beyond the expertise of these

11 witnesses and probably are better suited to be

12 responded to by IEPA. Frankly, we have started the

13 dialogue. We expect that dialogue to continue and

14 hopefully -- and continuing to work with IEPA, the

15 environmental groups, DNR, USEPA, that are here

16 today, that we can present a complete record to the

17 Board to assist them in making its determination.

18 This is the start of the procedure, long overdue.

19 That's the IAWA's position.

HEARING OFFICER McGILL: Thank you.

MR. ETTINGER: I just have a few

22 questions specifically directed to Dr. Garvey.

23 These generally relate to biology, although, some of

24 them relate directly to Dr. Garvey's report and I

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1 would just like to ask those questions. And if it's

2 you decided that that's -- that portions of your

3 testimony were beyond your expertise, we'll just

4 have to deal with that.

My first question -- or the next

6 question has to do with Page 54 of Exhibit 1. You

7 have a list of species here -- I'm sorry, 56 and 57

8 have a list of, I believe, 48 species of fish. How

9 many species of fish are there in Illinois?

DR. GARVEY: That's a good question.

11 I don't know if I'm actually going to be able to

12 answer that at this stage of the game, probably

13 something in the -- this list is not of species.

14 It's a list of groups with some species in there, so

15 to give you a number, I'm going to differ and say

16 I'm not 100 percent sure of the total number of

17 species that are in the state.

MR. ETTINGER: Once again, we can't be

19 100 percent sure unfortunately of anything these

20 days.

MR. GARVEY: Yeah.

MR. ETTINGER: Just a ballpark, is

23 this most of them, is this --

DR. GARVEY: This is going to cover

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1 all the groups, but then when you get into the

2 various cyprinid species that are in the state, you

3 can get into large numbers of species that

4 are -- and so, again, to give you a ballpark number,

5 I'm not going to feel comfortable doing that right

6 now.

MR. ETTINGER: Okay. Getting now to

8 your prefiled testimony, I just had a few things I

9 wanted to clean up with you. You discussed the Ohio

10 standards on Page 8 --

DR. GARVEY: Right.

MR. ETTINGER: -- of your testimony

13 and you state: Ohio's exceptional warm water

14 criteria are very similar to those that Illinois

15 currently has adopted for the entire state where

16 Ohio's daily minimum is one milligram per liter and

17 its one-day average is six milligrams per liter.

Given that all the surface waters

19 in Illinois would certainly not be categorized as

20 exceptional, it is clear that the current

21 standard -- current general aquatic use standard --

22 I'm sorry, general aquatic use Illinois dissolved

23 oxygen standard is too strict.

My question relating to that is,

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1 are some Illinois waters exceptional?

DR. GARVEY: Yes.

MR. ETTINGER: I don't believe I have

4 anymore questions for Dr. Garvey. Maybe we ought to

5 let other people talk to him before we go on to

6 other witnesses or --

HEARING OFFICER McGILL: Why don't we

8 go off the record for a moment?

(Whereupon, a discussion was had

off the record.)

HEARING OFFICER McGILL: Mr. Ettinger

12 has some additional questions for the other

13 witnesses of IAWA, but right now I'd like to focus

14 our questions -- any questions we have for

15 Dr. Garvey. I'll throw it up into the audience and

16 if you can just indicate by raising your hand if you

17 have any questions you'd like to pose to Dr. Garvey.

Michael Fischer of the Lieutenant

19 Governor's Office, go ahead.

MR. FISCHER: Good afternoon,

21 Dr. Garvey. I just wanted to explore with you,

22 Doctor, your classification on Page 9 of the report.

23 This is Exhibit 1 of the testimony exhibits today.

24 I'm reading under Systems in Illinois: With the

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1 exception of the Lake Michigan system, most inland

2 waters in Illinois are dominated by warm water,

3 non-salmonid faunal assemblages.

If we set aside lakes and

5 reservoirs and ponds and the such, basically

6 distilled water ecosystems, would you change your

7 characterization in light of streams, rivers, and

8 creeks in Illinois as being dominated by warm water

9 non-salmonid faunal assemblages or would you make a

10 different delineation with regard to our littoral

11 moving ecosystems?

DR. GARVEY: Well, first of all,

13 historically all of the Midwest has flowing water.

14 The reservoirs and lakes here except for maybe in

15 the extreme northern portion of the state, which are

16 glaciated, were flowing water. And so the reality

17 is is that a warm water assemblage is one that

18 exists in a flowing water environment and the ones

19 that you see in reservoirs tend to be rivering fish

20 that somehow got in a more lake-like situation.

And so when I talk about a warm

22 water assemblage, it either is -- the cool water or

23 warm water continuum is probably the better way to

24 deal with it. The reality is when we're talking

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1 about reservoirs, we're talking about one extreme of

2 what would be a -- of a continuum of fast-flowing

3 versus slow-flowing rivers and streams.

And so when I talk about this, I

5 am talking ubiquitously about the majority and,

6 again, we can get into semantics about which streams

7 are not involved in this, but the majority of the

8 streams and rivers within Illinois.

MR. FISCHER: You just described there

10 being -- there is a warm water/cool water continuum

11 yet isn't it accurate, especially in light of the --

12 now this is -- I'm referring to Exhibit 2. I'm

13 referring to the USEPA's National Criteria Document.

14 There's a discussion of warm water/cold water and

15 cool water systems discussed on Pages 2 and 3.

So among the continuum, is it fair

17 to -- is it fair for you to be able to characterize

18 this system as not either being warm water or cold

19 water, but isn't there an intermediate criterion

20 cool water that has a typical fish population or --

21 well, not population, a typical fish species that

22 you can identify as a cool water system that is in

23 fact distinct from cold water such as Lake Michigan,

24 oligotrophic lakes or a warm water system, like

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1 shallower natural lakes or reservoirs?

DR. GARVEY: This has been, I guess,

3 the big nugget in my brain that I keep trying to tap

4 away at, and I actually think it's an interesting

5 research question. My scientific opinion at this

6 stage of the game is that flow and how these species

7 are adapted to flow is going to be a far more useful

8 way of designating oxygen tolerance than cool water

9 or warm water designations at this stage of the

10 game.

I think that they're relatively

12 decouple. Again, the data out there are limited and

13 I need to do a review on this, but I do believe that

14 there's -- you've got to be careful about making a

15 cool water species synonymous with DO intolerant

16 because we have species such as channel catfish,

17 which are relatively DO -- of low DO intolerance

18 that we consider to be a warm water fish. It's kind

19 of a surprising result.

Conversely, we have a small amount

21 of bass populations in thermal cooling lakes that

22 are doing quite well. Why is that? Well, you know,

23 it's pretty warm, but there's probably plenty of

24 oxygen in there because -- for whatever reason, but

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1 the habitat is the thing that's basically important

2 for the species and not necessarily the cool water

3 or warm water or low flow or high flow factors. Was

4 that clear? I kind of bounced back and forth.

MR. FISCHER: There clearly is a --

6 it's a gradation and there's clearly overlap species

7 that you can find in what some refer to as a cool

8 water system that are comfortable in a warm water

9 system, the smallmouth bass --

DR. GARVEY: Yeah.

MR. FISCHER: -- being as you

12 described one of those species. I guess taking the

13 big picture overall, what would you describe as the

14 top sporting species in the State of Illinois that

15 are commonly pursued by recreational anglers?

MR. GARVEY: Well, obviously,

17 largemouth bass is going to be your typical species,

18 walleye in various systems. You know, the list is

19 pretty much on the top of those species, so those

20 are the typical ones that would come to mind. And

21 personally, I like going for other kinds of fishes.

MR. FISCHER: When you just discussed

23 walleye, you discussed walleye being in various

24 systems. Clearly, walleye is among the perhaps more

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1 temperature and dissolved oxygen sensitive species

2 that is actually highly pursued and valued in

3 Illinois.

In your academic opinion, would

5 you consider walleye to be among the warm water fish

6 species or is it actually more fair to classify

7 walleye as being a cool water species typically

8 living in cool water environments?

MR. GARVEY: Well, you know, walleye

10 are fairly well distributed throughout the state due

11 to the actions of the Illinois DNR. Usually, a lot

12 of times --

MR. FISCHER: Just setting aside the

14 planting among their natural range and among their

15 natural --

MR. GARVEY: Well, you know, that's

17 because they -- I mean, you get into zoogeographical

18 arguments about whey they're up in the north and not

19 in the south, that kind of thing. It's probably due

20 to being landlocked glaciers, bla-bla-bla. And,

21 again, remember, 10,000 years ago where all these

22 cool water species are, it was glaciers, so they

23 were all down, you know, mingled with all the other

24 species that are around here.

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In terms of walleye, I'd say

2 that they're -- I don't know their growth optima off

3 the top of my head. It's probably in the low

4 20-degree celsius. They probably don't tolerate

5 very high extremes in temperature as well as other

6 species. So yeah, I would probably call them more

7 of sort of an intermediate, somewhere between cool,

8 very cool water, and warm water, somewhere along

9 that continuum.

In terms of oxygen requirements,

11 they're relatively similar to a lot of other

12 species, the same with sauger.

MR. FISCHER: What I'm basically

14 trying to get at is perhaps more from a biologist's

15 standpoint, is it perhaps more helpful to separate

16 the discussion from the still-water ecosystem such

17 as reservoirs or lakes to the extent they exist in

18 the northern half of the state from a discussion

19 about the different river ecosystems that may exist

20 in the state?

Do you think that's helpful to

22 maybe have a separate discussion or can we adopt a

23 unified standard from a biologist's standpoint that

24 would cover all the ecosystems we have to deal with

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1 in our state?

MR. GARVEY: I'd say that probably the

3 major focus of the DO standard -- if we are stuck

4 with a single DO standard, that has to fit the

5 entire state, which should be geared toward the most

6 sensitive systems, which would be streams and

7 rivers, and it should be geared toward the areas

8 that are the most reservoir-like within those

9 particular streams and rivers because those are the

10 systems we're going to expect to see the potential

11 sags in oxygen that would occur to BOD, you know,

12 biological oxygen demand, biochemical oxygen demand

13 in those particular systems. So, you know, I'd say

14 that that's probably what we want to focus our goals

15 on.

MR. FISCHER: I guess I just keep

17 stumbling over the (unintelligible) the outside

18 before you get to the discussion on the other parts

19 that Illinois is dominated by warm water

20 non-salmonid faunal assemblages because -- is there

21 a greater variety in the assemblages when we are

22 discussing streams and rivers?

Aren't there perhaps not a

24 majority, but isn't there a significant percentage

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1 of our streams and rivers in Illinois that based on

2 its fish populations, sauger, walleye, yellow perch,

3 based upon their water temperature and present

4 dissolved oxygen levels?

Can't we describe a significant

6 percentage, if not -- I'm not saying the majority,

7 but a significant percentage of our streams and

8 rivers as actually being cool systems and there is a

9 delineation to be made between cold water and warm

10 water?

MR. GARVEY: Again, I guess I would go

12 back and just argue that instead of trying to do the

13 cold water, cool water, warm water, flowing versus

14 non-flowing and what's your expectations relative to

15 habitat quality are going to be the most important

16 expectations.

Again, I guess this is a bias, but

18 I think the truth is habitat leads to water quality

19 and leads to the assemblages that you see in those

20 particular systems. And, you know, superimposed

21 upon that are effects of things like nutrients and

22 loading of that, but if the system is functioning

23 normally, has good habitat, it's going to typically

24 be able to handle those sort of effects.

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MR. FISCHER: When you discuss habitat

2 having the effect on the fish populations, could you

3 go through the -- walk through how the habitat has

4 the effect, is it perhaps the sufficient riparian

5 vegetation will create an appropriate -- let's take

6 a stream or a river as an example. Let's take a

7 stream.

When you discuss habitat, like are

9 you referring to such as riparian vegetation

10 sufficient, foliage cover over the river to afford a

11 typical amount of shade that would create a fairly

12 standard temperature?

MR. GARVEY: Yeah, Ohio, actually.

14 Ohio EPA -- let's go back to them -- developed

15 what's called a qualitative habitat evaluation

16 index, which there's no water quality in it. You

17 just go out and you look at the stream, you look for

18 undercut banks, you looks for riparian vegetation,

19 you look for the percentage of sinuosity, you look

20 for how riffley, how much imbeddedness you have, all

21 that kind of stuff.

That gives you a really good

23 estimate a lot of the time of the macro invertebrate

24 diversity and the fish diversity in those streams.

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1 It's got nothing to do with water quality. It has

2 everything to do with habitat quality. Why is that?

3 Well, the two go hand in hand and the reality is is

4 that the habitat is able to provide the reproductive

5 basis for those particular organisms.

It's going to provide the food

7 base by which the food web is basically going to be

8 anchored in that particular system. It's going to

9 provide the ability for that system to deal with

10 maybe occasional pulses of nutrients that come

11 through from an upstream farm or, you know,

12 discharge or whatever, and it can basically handle

13 that.

Once you start to degrade that

15 habitat and reduce riparian vegetation, poor land

16 use, increased siltation -- and when I worked in

17 Kansas, it was something as simple as having access

18 of cattle to particular streams -- it could be an

19 otherwise beautiful stream, wonderful riparian

20 vegetation, but if you just had one area where the

21 cattle was able to get in there, it was kind of like

22 opening the door to Pandora's box, it would really

23 hurt the stream. And so it's a far more complex

24 issue than just focusing on a single water quality

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1 index.

MR. FISCHER: Among the beneficial

3 aspects, though, of good habitat -- and, again,

4 without going through all the criteria of what would

5 go into good habitat -- isn't part of the positive

6 aspects of good river or stream habitat the fact

7 that riparian vegetation helps provide an

8 appropriate water temperature, which, in turn, helps

9 establish a favorable dissolved oxygen level for the

10 fish residences?

MR. GARVEY: I hate to be the devil's

12 advocate and this is the reason why I'm sitting here

13 in this situation. It is also that riparian

14 vegetation increases the heterotrophic nature of the

15 system which then increases system respiration,

16 reduces the amount of light that gets in there, and

17 you actually have a situation where you have a DO

18 sag; it occurs.

It's a normally functioning stream

20 of good riparian vegetation and it's -- the DO

21 occasionally sags in the pool areas; it happens.

22 Again, I mean, I don't know how else to answer that,

23 but it happens.

MR. FISCHER: And I guess this whole

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1 line of questioning is just going to is it actually

2 difficult to put one label such as warm water or the

3 like dominated by warm water on our systems, if we

4 look at the rivers and streams as an example,

5 it's -- perhaps there's much more diversity when

6 looking at Illinois' rivers and streams and it's

7 hard to sum up in maybe one label as dominated by

8 warm water?

MR. GARVEY: You know, in personal

10 conversations -- again, as I mentioned to Albert --

11 I think that there probably are ways that you can

12 designate eco regions within the state. Often they

13 don't superimpose with the geography and the

14 geology.

It's more or less you're just sort

16 of figuring out sort of what kind of faunal

17 assemblages you see in those and that would probably

18 be a useful starting point for designating streams

19 as having specific requirements both habitat and

20 probably water quality.

MR. FISCHER: That's my line of

22 questioning. Thank you, sir.

MR. GARVEY: Sure.

MR. FISCHER: Thank you, Richard.

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HEARING OFFICER McGILL: Thanks.

MR. JOHNSON: I've got just a quick

3 one, Doctor.

MR. GARVEY: Sure.

MR. JOHNSON: There was some minimal

6 testimony about dissolved oxygen standards in Ohio.

7 Did you look at other states in the Midwest and

8 compare?

MR. GARVEY: Yeah, we've taken a look

10 at the whole variety of states, Minnesota, Iowa,

11 Missouri, Kentucky, Tennessee, Indiana. You know,

12 it varies from state to state. It's going to vary

13 whether they have cold water salmonid assemblages in

14 them or not. All of them hover at -- a lot of them

15 have the five-milligram per liter minimum and it

16 sounds very familiar to what Illinois has because I

17 think in that early regulatory setting, five

18 milligrams --

MR. JOHNSON: Currently?

MR. GARVEY: Currently, that's what

21 I'm talking about. They still have five milligrams

22 per liter. We don't understand what process they've

23 gone through to modify it, but the suspicion is that

24 probably they just have the same standard they had

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1 30 years ago.

Other states like Ohio have been

3 through a very, very stringent process of sort of

4 coming up with regional use sort of standards,

5 which seems to be kind of the state of the art and

6 sort I think where we want to go with Illinois.

Other states, you know -- I think

8 Indiana has a minimum of four milligrams per liter.

9 I would have to go back to the list and see what was

10 compiled but, you know, it varies from state to

11 state. I think Missouri is five milligrams per

12 liter as their minimum. Most of them still focus

13 rather than on some sort of long-term running

14 average, they focus on daily minimum and might have

15 a daily average as well, so that's sort of what

16 they've come up with.

Very few have seemed to have taken

18 Chapman's NCD and done anything with it as far as I

19 can tell, but, again, until we actually talk with

20 the various folks who came up with that policy, I'm

21 not 100 percent sure where a lot of those numbers

22 came from.

MR. JOHNSON: But you do have the

24 numbers?

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MR. GARVEY: Yeah. I think I might

2 even have it in my folder here.

HEARING OFFICER McGILL: From the

4 other Midwestern states you're talking about?

MR. JOHNSON: Midwestern states, yeah.

HEARING OFFICER McGILL: Maybe you

7 could provide us with that information.

MR. GARVEY: Yeah, I can get that for

9 you.

MR. HARSCH: It's an extremely

11 complicated review because it depends on the stream

12 use classifications and how you apply the standards.

13 In our meeting with IEPA and USEPA, that subject

14 came up and we've asked for some guidance, and

15 hopefully, we'll get additional guidance from USEPA.

16 We've gotten -- they've been very gracious and

17 provided us with the results of their work and

18 that's what Dr. Garvey is referring to.

It is our understanding that

20 probably if Dr. Garvey testified based on that

21 meeting, that Ohio is the only state that probably

22 has gone through -- at least that's the only one we

23 were made aware of -- that have gone through the

24 process of doing what we have started today with

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1 this proposal.

HEARING OFFICER McGILL: You say USEPA

3 has provided you information on the other states?

MR. HARSCH: On some that they've

5 looked at; it's not complete. It's not every state

6 and that's what Dr. Garvey, I think, is referring

7 to.

MR. GARVEY: Right. It's just the

9 states that we would consider the immediate region,

10 so Minnesota, some of the northern states, but then

11 Iowa, Kentucky --

HEARING OFFICER McGILL: I think we

13 would just like to get a sense of where the other

14 states were at and --

MR. GARVEY: Yeah. You're going to

16 find it's heterogeneous at best.

MS. MOORE: And when did Ohio change

18 their standards?

MR. HARSCH: I can't tell you exact

20 date. I think it's in the last --

MS. MOORE: Last two years?

MR. HARSCH: -- three to four years if

23 I recall.

MR. GARVEY: Yeah. I think the

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1 current USEPA staff that we talked to had worked

2 with them on that, so they have some understanding

3 of it. It must have been fairly recent.

MR. HARSCH: We'll endeavor to find

5 that out for the next hearing.

MR. GARVEY: Sure.

HEARING OFFICER McGILL: I think we do

8 have some additional questions for Dr. Garvey. Does

9 anyone in the audience have any questions for

10 Dr. Garvey before we proceed with our questions?

(No response.)

Seeing none, I'll turn it over to

13 Anand Rao of our technical unit.

MR. RAO: Dr. Garvey, we had some

15 questions regarding how you came up with this time

16 period for early life stages. I don't know if

17 you're aware of, you know, Dr. Sheehan's testimony

18 in a previous rulemaking and in that testimony he

19 also had exhibits about different fish species in, I

20 think, Illinois, and based on the information he had

21 collected, IAWA proposed to the Board an early life

22 stage time period from I think April through

23 October.

And then the Board, when they

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1 adopted the rule, it was changed from March through

2 October. Could you explain in the context of the

3 earlier testimony, you know, what's the rationale

4 for charting the early life stages time period for

5 dissolved oxygen, and specifically what's the

6 difference between the ammonia toxicity and

7 dissolved oxygen concentration?

MR. HARSCH: Earlier, we discussed

9 this with the hearing officer and indicated that

10 since Dr. Garvey really had not -- was not familiar

11 with the written testimony of Dr. Sheehan, that

12 maybe if you posed that question it might be

13 appropriate to respond to that at the next hearing.

Dr. Garvey, if you can address

15 that, that's find, but if you would like to --

HEARING OFFICER McGILL: You're

17 welcome to consider it and respond at the next

18 hearing. We have been referring to what has been

19 entered as Group Hearing Exhibit 7, so everyone has

20 access to that, and if Dr. Garvey would like to wait

21 and follow up, he's welcome to or he can respond now

22 and supplement later.

MR. RAO: You can do both. I mean, if

24 you want to add more, you know, it's up to you.

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MR. GARVEY: I consulted the same

2 people that Dr. Sheehan consulted about the early

3 life history stages and I'll be the first one here

4 to admit that we do have fish spawning that occurs

5 through October in the State of Illinois, okay, so

6 we know that that's the case.

The tough issue here is that

8 during the productive summer months, and this is

9 what we mention in the report, there's a period of

10 time that we know that dissolved oxygen

11 concentrations decline below five milligrams per

12 liter and we know that they, under a lot of

13 circumstances, will decline far more than that,

14 however, we still see the fish species present that

15 spawn later on in the season.

And so essentially what we had to

17 come up with was a way of rectifying that potential,

18 I guess, conflict between what we see in the

19 environment -- lopomas larvae, for example, lopomas

20 being bluegill, the sunfish group -- continuing to

21 spawn until very, very late in the fall. Well, why

22 do they do that?

I published a few papers on this

24 and it suggests widely for most fish species it's

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1 almost inevitably the earliest spawned individuals

2 within the population. The ones that spawn in the

3 springtime during the period of time when we

4 recommend having the perfected standards that will

5 survive through the first winter of life and recruit

6 or become -- they contribute to the population, all

7 right.

The ones that spawn later on have

9 a much lower probability of surviving typically due

10 to the fact that they don't have as long of a

11 growing season to grow up to a size where they can

12 actually make it through the first winter of life.

13 And essentially what we had to do was compromise

14 between what we know happens in the environment, and

15 we know when these fish spawn and July 1st seemed to

16 be the right cutoff point for that.

Now, the reason why Bob suggested

18 that you protect through the entire season is

19 because ammonia and its effects on the environment

20 and its relationship to temperature are not coupled

21 with seasonal changes as dissolved oxygen is and so

22 he can protect all the early life stages all the way

23 through summer and not have to worry about

24 rectifying that apparent contradiction between what

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1 happens in the environment and basically what

2 happens with the early life history stages of fish.

I don't know if I answered that

4 clearly enough, but that was sort of what we had to

5 rectify in the report.

MR. RAO: So it's not just the early

7 life stages of the fish, but it's more to do with

8 how the dissolved oxygen concentration affects the

9 early life stages, is that what you're saying, as

10 compared with ammonia?

MR. GARVEY: Well, what it is is the

12 fact that all the species that essentially spawn in

13 the summertime, okay, are either protracted

14 spawners, which means that they spawn in the spring,

15 but they continue to spawn throughout the summer.

And we know from much of the data

17 that's out in the fisheries world that for those

18 kind of species, the protracted spawners, the ones

19 that spawn from spring throughout the summer,

20 typically the individuals that contribute to the

21 population are the ones that were spawn in the

22 springtime.

The ones that are spawn in July

24 through August just don't contribute much to the

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1 populations, and I can point that out for all the

2 centrarchids. So what we've done is basically taken

3 care of that group of species. There's another

4 group of species, the ones that spawn in the summer

5 months, that tend to be in high flow, very highly

6 predictable stream environments.

Those species have to basically

8 have adaptations to deal with the summer

9 environment. What is that adaptation? They live in

10 environments that are always high flow, aerated,

11 don't experience the kind of diurnal fluctuations or

12 seasonal fluctuations that we see in other

13 environments, all right.

And then the third group of

15 species are what we call the opportunistic species.

16 These are species that live in environments that are

17 extremely disturbed. These are probably going to be

18 DO tolerant species, and the reality is is that they

19 just spawn throughout the year so that one clutch --

20 the mosquito fish are a perfect example of that.

21 They spawn with small clutches throughout the year

22 with just the expectation that some clutch is going

23 to make it.

So basically our understanding of

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1 the adaptations of these species rectifies why we

2 should expect to see some spawning periods when we

3 would expect oxygen to be low in the environment in

4 the areas that we suggest sampling oxygen.

MS. LIU: Dr. Garvey, are you aware of

6 any endangered or threatened species that have

7 spawning periods outside of the time frame that

8 you've proposed that might need extra protection

9 because they might exist?

MR. GARVEY: State threatened, I can't

11 give you anything off the top of my head. The one

12 federally endangered species, the pallid sturgeon,

13 will typically have finished its spawning and,

14 again, this year we have data that suggests have

15 already finished their spawning by the end of June

16 and so essentially should be well protected by the

17 standards that we suggest.

MR. RAO: A related question, and

19 maybe this is for Mr. Harsch or Dr. Callahan, in the

20 ammonia nitrogen rulemaking when this early life

21 stages fact period was set, there was also a

22 provision which allowed for a different, you know,

23 time period protection if the agency had some

24 specific information about a stream where there may

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1 be some endangered species that needed, you know,

2 additional protection. Is that something that you

3 will be able to work with in this proposal?

MR. HARSCH: We would be happy to

5 consider it. In large part, Dr. Garvey's time

6 period is based from my understanding -- and Jim can

7 confirm this please, is based on what has actually

8 been observed in the natural system and where the

9 fish are living and reproducing and we are getting

10 DO levels that are below the five, six standard

11 during those summer months and in conformance with

12 what we are proposing.

So we kind of think that the

14 natural system, the fish have adapted where we've

15 pointed out they reside, in the aerated areas, the

16 riffles, not the pool area where we're saying you

17 should measure the DO to make sure that it's at that

18 minimum.

Did I say that correct, Jim?

MR. GARVEY: Yes, Roy. You've

21 interpreted me well.

MR. CALLAHAN: I'd like to add a point

23 to that if I may. Rather than qualify this

24 regulation on that or around that premise as we did

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1 ammonia, I would rather advocate that we proceed

2 vigorously with the development of redesignated

3 streams where we can begin to assign specific

4 ranging parameters to different water bodies perhaps

5 on a different regional basis if we can come up with

6 sufficient species composition differences.

So rather than qualify the DO

8 regulation on that, I'd like to see us move forward

9 with a more aggressive classification system that

10 would offer a very high degree of protection where

11 it was appropriate.

MR. HARSCH: And this is intended to

13 be the starting point to adopt the appropriate

14 essentially statewide general water quality

15 standard. And I would echo on what Mr. Callahan is

16 testifying to and that is that IAWA has started that

17 process as well as would welcome the opportunity, as

18 I've mentioned in my opening statement, to work with

19 anybody that wants to proceed along that line. But

20 developing an appropriate scientifically based

21 general water quality standard is a starting point.

MR. RAO: Just a related question,

23 earlier you mentioned about this new DO monitoring

24 data that you will be presenting and maybe

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1 discussing at the next hearing and also, you know,

2 just now you've mentioned that some of the things

3 that Dr. Garvey testified to was based on real data,

4 is there any summary data you can provide into the

5 record that we can take a look at?

MR. HARSCH: I would be happy to

7 provide whatever we get from -- we've gotten copies

8 and I have copied the computer disk in providing it

9 to Dr. Garvey today on the work that was done on the

10 Fox River that I talked about, and we have asked, as

11 Dr. Garvey testified, IEPA for the data that's been

12 collected to date from their continuous monitoring

13 stations that I think were eight or 12 --

MR. MOSHER: Eight.

MR. HARSCH: Mr. Mosher says eight. I

16 will take it at eight -- locations and that would

17 include a number of differing water bodies and that

18 that data is the data that Dr. Garvey will be

19 looking at. We would be more than happy I guess to

20 provide that if it's in any kind of usable form to

21 the Board.

MR. RAO: If it is in a usable form

23 and if it's not on paper, you know, if you could --

MR. HARSCH: Is a computer disk okay?

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MR. RAO: Yeah.

MR. ETTINGER: We'd like to see any

3 data you have too.

MR. HARSCH: Well, you've got this. I

5 know you have Fox River stuff.

MR. ETTINGER: Other than -- we're

7 talking about the Santucchi report and the USGS

8 report?

MR. HARSCH: You have the Santucchi --

MR. ETTINGER: I understand that. I'm

11 just saying as far as the DO data we've got, we're

12 just talking about the Santucchi report and the USGS

13 report?

MR. HARSCH: And the compilations that

15 you've put together.

MR. ETTINGER: And then we're going to

17 have the compilations of the Ohio River tributary --

MR. GARVEY: I'm sure I can do that.

MR. ETTINGER: -- observations?

MR. GARVEY: (Indicating.)

MR. JOHNSON: Doctor, you may have

22 answered this question and I don't realize it, but

23 the one thing I talked to the technical unit about

24 that I was curious about is specifically the

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1 designation in our ammonia rule, the early life

2 stage period from March to October versus in the

3 dissolved oxygen proposed amendment or rule, early

4 life stage March through June, and I guess what I

5 want from you is some specific -- or an answer as to

6 whether or not there is a difference inherent

7 between dissolved oxygen and ammonia that would make

8 those early life stage periods that different?

MR. GARVEY: I think it all comes down

10 to the understanding that in natural environments we

11 are going to get sags in oxygen that occur in

12 natural systems during the hot summer months when we

13 have a lot of productivity, a lot of leaf cover over

14 a particular stream that's going to cause what we

15 call heterotrophic systems -- conditions which

16 basically means that everything in the community is

17 respiring and not producing a lot of oxygen.

And the only way to rectify that

19 given the fact that we know that there is still

20 assemblages in the state that are there is the fact

21 that they must have adapted to the particular

22 environment that they're in in order to survive,

23 and, you know, the lopomas and the centrarchids are

24 the perfect example of that situation, so the cutoff

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1 there, you know, between June and July is somewhat

2 artificial.

I can show you data to show that

4 oxygen actually declines in systems in June, but,

5 you know, I don't know where to make that actual

6 cutoff, is it June 15 or is it July 1st? You know,

7 July 1st sounds like it's a good point because we

8 know that's when we're getting to the dog days of

9 summer and we know for sure that that's when

10 temperatures are going to be consistently warm,

11 productivity is going to be consistently high, and

12 we're going to basically see oxygen sags in these

13 particular systems.

Reproduction is still going on.

15 There are fish species that continue to persist

16 under those conditions. There are also a lot of

17 spring-spawning species that still for some reason

18 spawn for a couple more weeks later on during the

19 summer, but typically, we never see those late

20 spawned individuals ever make it to the population.

21 They just don't recruit.

Why do they keep spawning? That's

23 actually a real persistent question that some of my

24 research is trying to answer, and I have a couple of

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1 papers that are published on that. But in general,

2 it's usually the earlier spawned individuals in the

3 spring prior to that July 1 that are going to make

4 it for the spring spawners that are protracted into

5 that period.

MR. JOHNSON: Thank you.

MR. HARSCH: I don't think there's any

8 disagreement between what we've proposed and what

9 Dr. Sheehan came up with in the earlier proceeding.

10 If I understand what Dr. Garvey is saying, it really

11 intuitively doesn't make sense to have a standard

12 that says you have to protect early life stages when

13 we have -- and then have an alternate where we have

14 these in naturally occurring systems early life

15 stages thriving and the dissolved oxygen -- and

16 where we see the dissolved oxygen levels at the --

17 much below the lower number.

MR. GARVEY: Also, I'd like to

19 qualify. So I'm talking about the spring spawners

20 that are continuing in the summer, but then there

21 are also another whole suite of species that

22 continue to spawn in the summertime and they either

23 have adaptations to deal with, occasional sags in

24 oxygen, or there are species that exist in

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1 environments where -- like riffle areas, a high flow

2 area within a stream that if flow is interrupted,

3 they've got a lot more problems than dissolved

4 oxygen, because, obviously, that's going to

5 negatively affect their ability to reproduce and

6 survive within that particular environment.

MR. RAO: This is another follow-up to

8 that. Do you have any fish population data in these

9 low DO streams where these late spawners are

10 thriving, you know, to support, you know, the

11 statement that you're making? Are there, you know,

12 any data available?

MR. GARVEY: Well, for example, if you

14 go to Lusk Creek and you look at the fish assemblage

15 that's there, we had occasional experiences and we

16 have data, I hope, to show that's the case. Again,

17 I'm not the kind of person to run around -- and if

18 I'm proven wrong, you know, basically I'll come back

19 and say after two months of looking at the data --

MR. RAO: No. I'm not asking you to

21 prove you wrong. I'm just saying, you know --

MR. GARVEY: -- I'm proven wrong. But

23 the point is we know these systems, at least in the

24 majority of the systems in the state, there are

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1 occasional declines to that 3.5 milligram per liter

2 and still the populations do just find, they're

3 persistent; they're are; we find them.

The only time that we see the

5 populations decline or disappear is when there's a

6 habitat alteration typically in effect, a reduction

7 in riffle areas or the quality of the riffle areas

8 or a reduction or a change in the flow regime.

That's going to be the important

10 thing to be focusing, not the occasional dissolved

11 oxygen fluctuation in that particular stream. And

12 all you have to do is go out and basically look also

13 at the fish data for the state and be able to make

14 that inference.

MR. RAO: That's good enough.

MR. GARVEY: I mean, that's the point.

17 I wish there were more data.

MS. LIU: I have one more question,

19 but I'm not sure if, Dr. Garvey, you're the best

20 person to answer it or maybe someone else with your

21 panel today. There's been a lot of discussion about

22 the impact of dissolved oxygen on aquatic organisms,

23 but I was wondering in your research whether or not

24 you found any information about the levels of

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1 dissolved oxygen which might create a

2 chemically-reducing environment in the water such

3 that minerals in the sediment might solubilize and

4 cause water quality problems for the drinking water

5 system, iron and --

MR. GARVEY: Yeah. I mean, I only can

7 think of -- I mean, that would have to be a chronic,

8 almost an anoxic type of thing. I mean, I'm not a

9 limnologist or a biochemist. That's got to be a

10 situation that occurs like in the hypolimnion of a

11 lake where oxygen is completely depleted and then

12 you'll start seeing those severely reduced

13 situations.

If we ever get to that point --

15 we've got a lot of other problems, so I don't think

16 that's the issue. But that's, you know, based on my

17 two cents worth on that.

HEARING OFFICER McGILL: I have two

19 quick questions I just wanted to get on the record

20 and then -- actually, let's go off the record for a

21 second.

(Whereupon, a discussion was had

off the record.)

HEARING OFFICER McGILL: The Board

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1 will just finish up with the question it has and

2 then, Mr. Ettinger, if you want to follow-up on

3 anything more with the IAWA witnesses, we can do

4 that. And I'm not sure who the best person is to

5 answer this, but I wanted to ask a question

6 about the IAWA's proposing the rule language

7 amendments to Board Rule Section 302.206.

I just had a couple of questions

9 about the actual rule language that the IAWA is

10 proposing, it says: Dissolved oxygen shall be

11 determined on a monthly basis. What does that mean?

MR. HARSCH: In part, the standard is

13 proposed to apply through various months of the

14 year, so it would depend which month of the year

15 you're in, what the actual standard is. Again,

16 we're talking about a minimum value, seven-day mean

17 minimums, but the numbers themselves break out

18 depending on what month you're in.

HEARING OFFICE McGILL: So when it

20 says shall be determined on a monthly basis, monthly

21 in the sense of you need to look down into

22 subsection A and B to figure out which standards

23 apply?

MR. HARSCH: Yes.

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HEARING OFFICE McGILL: It's not

2 directing that tests be performed monthly?

MR. HARSCH: No.

HEARING OFFICER McGILL: And the

5 other -- the word "should" appears in subsection A

6 and subsection B, which is just not typical

7 mandatory or regulatory language. Each subsection

8 gives a definition, whether it's mean minimum or

9 mean and then subsection A says the mean minimum

10 should be based on a data recorder or representative

11 grab samples and subsection B says mean should be

12 based on data collected by semi continuous data

13 loggers or estimated from the representative daily

14 maximum and minimum values.

Is that just -- that's a

16 suggestion? I'm just wondering about the word

17 "should" and is this -- let me ask the first

18 question. This is not mandatory, this is just a

19 suggestion as to how those would be -- the mean

20 minimum and mean would be determined?

MR. HARSCH: It's either going to be

22 with a data recorder or representative grab samples.

23 There's very little else. I'm not aware of any

24 other method of determining what the dissolved

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1 oxygen concentration is. It's either continuous

2 semi -- actually, the technical word would be a

3 semi-continuous data collector, logger, or a

4 representative grab sample, so it's going to be one

5 or the other.

HEARING OFFICER McGILL: Okay. So if

7 it says "shall" or "must," that would not change

8 your meaning?

MR. HARSCH: No.

HEARING OFFICER McGILL: And this is

11 directed -- I mean, who's going to be doing the

12 sampling, is this directed really at the agency?

MR. HARSCH: It could be anybody.

HEARING OFFICER McGILL: Any potential

15 complainant possibly to bring --

MR. HARSCH: A complainant, Illinois

17 EPA. There's requirements in NPD -- in some NPDES

18 permits currently to do water quality analysis.

HEARING OFFICER McGILL: So it could

20 be a discharger --

MR. HARSCH: Yes.

HEARING OFFICER McGILL: Okay. Thank

23 you.

MS. LIU: Mr. Streicher or

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1 Mr. Callahan, I was wondering if you can comment on

2 whether or not the IAWA is aware of any of these

3 dischargers who are having trouble because the

4 DO standards aren't being met --

MR. STREICHER: With the dischargers

6 having troubles with the DO in the stream?

MS. LIU: (Indicating.)

MR. STREICHER: Dischargers that are

9 on streams that have TMDLs currently being published

10 or being promulgated could or will be required to

11 improve their treatment methods, treatment quality

12 potentially to meet lower or more strict CBOD and

13 ammonia standards. That's what's been proposed on

14 the stream that I'm on and what is in the TMDL

15 that's been published for Salt Creek.

MS. LIU: Could you describe what

17 types of upgrades a plant might have to make in

18 order to meet the DO?

MR. STREICHER: I could speak to what

20 my plant would do. I meet -- the permit limit I

21 have now is ten milligrams CBOD and a 2.3 milligram

22 ammonia. The recommended standard would go to

23 five for CBOD and one for ammonia. Typically, I

24 meet those already, however, in my plant process,

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1 there are times I may pop above that five parts.

What I would need to do is

3 potentially in my plant put in tertiary filters,

4 sand filters, that would remove further -- you know,

5 lowering any material in the water that would

6 contribute to BOD. Ammonia, it would be adding

7 aeration capacity or modifying aeration methods,

8 that sort of thing.

I don't know -- I couldn't -- I

10 would be guessing at what the cost would be to that

11 plant, but it would be significant.

MS. MOORE: Do you have excess

13 capacity?

MR. STREICHER: I don't have excess

15 capacity at my plant. Elmhurst is a sized-out

16 community. We're not looking at any growth. We

17 built a plant for the size of the community and

18 that's where we're at now. We would have to add

19 those treatment --

MS. MOORE: You would have to add

21 additional capacity?

MR. STREICHER: Maybe not capacity,

23 but ability to treat to that lower limit.

MR. JOHNSON: You testified,

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1 Mr. Streicher, that there were about -- I think it

2 was you -- that there are about 300 --

MR. STREICHER: Stream segments.

MR. JOHNSON: -- stream sites on the

5 303(d) list?

MR. STREICHER: Uh-huh.

MR. JOHNSON: If this proposed

8 regulation were to become promulgated, how much

9 would that number be decreased?

MR. STREICHER: That's a good

11 question. In total numbers --

MR. HARSCH: Maybe I can address that

13 a little better. Inquiring of IEPA as to how many

14 exact stream segments that are listed and then it

15 was the draft reports, no one really had a number.

16 We had the numbers from previous years, but nobody

17 counted up the segments. We went through and

18 counted and there were 323 that we found that were

19 listed as DO-impaired.

It is our understanding, and as

21 Mr. Callahan and Mr. Streicher testified, that

22 currently the Illinois EPA will list a segment if

23 the biological indices are not adequate and then

24 they'll look at what the causes are. If they have

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1 data that's reliable and shows that there's the

2 current standard of six and five as not being met,

3 it's listed as DO-impaired and that's where the 320

4 comes from.

There are a number of segments

6 when you go through the list and it's a public list,

7 that are listed for MBI scores, habitat alteration,

8 nutrient enrichment, and dissolved oxygen. I

9 believe that it is the current IEPA policy, as

10 testified by the witnesses because I've been to the

11 same meetings where it's been presented, that if the

12 IEPA does a TMDL on that segment, they would only be

13 doing a modeling analysis to determine -- and to do

14 a load allocation on dissolved oxygen.

So we would eliminate potentially

16 all of those segments from requiring TMDLs if those

17 segments actually meet the water quality standard

18 we're proposing. Obviously, it would require the

19 generation of data, if that data does not exist, to

20 justify probably not doing a TMDL or removing --

21 because you're not going to be able to remove them

22 from the list because they still have a macro -- the

23 MBI would still be messed up.

But there is no parameter, no

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1 water quality standard that would be in violation,

2 so IEPA would not be doing a TMDL for those

3 segments. I would very much like to know what the

4 costs are and perhaps IEPA could provide that at the

5 next hearing, but I believe that those costs in

6 urban water segments are going to be upwards of

7 $200,000 and plus to do those modeling analysis and

8 probably upwards and in excess of $50,000 on rural

9 water segments to go through that load allocation.

It's IEPA's position -- IAWA's

11 position that that's really money that we could be

12 wasting and maybe we ought to be spending those

13 monies on habitat restoration through 319 grants or

14 really focusing in where we actually have a water

15 quality standard problem that's causing the --

16 whatever is causing the biology to be messed up.

17 That's really what --

MR. STREICHER: Habitat restoration,

19 you know, stream channel --

MR. JOHNSON: So it's not the

21 existence -- the fact that you're on the 303(d) list

22 that you're concerned about, it's the potential TMDL

23 requirements that --

MR. HARSCH: That's correct. Now,

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1 that doesn't -- you know, a lot of segments -- the

2 data shows that Salt Creek and East Branch of the

3 Dupage. Those are really the first two urban TMDLs

4 that IEPA has tackled that we're aware of. If data

5 showed that -- if you enacted this standard and it

6 was approved USEPA, we would have to have data that

7 would show it meets the current standard.

It still wouldn't take that

9 segment off the TMDL list. There's a chloride issue

10 with respect to water and there may be another

11 issue, so a TMDL would still have to be done. But

12 it's our understanding that the load allocation for

13 BOD ammonia, et cetera, to get it to dissolved

14 oxygen standards are really what's expensive to

15 carry out. The modeling is difficult. Again, we're

16 not the people that do it. We just -- my clients

17 and myself go to those meetings and we hear IEPA

18 talk about it.

But it's something that I believe

20 USEPA has been talking about for ten, 12 years, that

21 states need to get their water quality standards in

22 order, make sure they're properly supported by

23 scientific evidence before we go down the TMDL

24 process or we would be wasting our time spending a

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1 lot of public money doing the TMDLs and then coming

2 up with a load allocation that's based on a computer

3 model with an adequate margin of safety to comply

4 with the standard that isn't scientifically based

5 and that's why we're here in part.

MR. CALLAHAN: It would not be

7 uncommon, I don't believe, to take a look at the

8 list and find water segments that are listed that

9 really don't have a chemical water quality parameter

10 associated with it. Particularly down state there

11 would be siltation, there's riparian bank

12 modification, channelization, hydrology. There are

13 a number of other factors just simply besides a

14 chemical water parameter.

HEARING OFFICER McGILL: Mr. Ettinger,

16 do you want to ask anymore questions?

MR. ETTINGER: If you had a number of

18 2.48 in a stream occurring in June, that would blow

19 your standard, wouldn't it?

MR. HARSCH: Yes.

MR. ETTINGER: And we would still have

22 to do a TMDL on that stream?

MR. HARSCH: Right.

MR. ETTINGER: Have we ever done a

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1 study of how many of these 300-plus streams would

2 violate your standard?

MR. HARSCH: (Indicating.)

MR. ETTINGER: Does the IAWA even have

5 that data?

MR. HARSCH: Of course not.

MR. ETTINGER: It's all at IEPA?

MR. HARSCH: Or the survey.

MR. ETTINGER: Or the survey. We

10 don't really know how many of these 300 listed

11 streams are affected by this proposal?

MR. CALLAHAN: That wasn't our intent,

13 Albert. Our intent was to come up with a good

14 standard.

MR. STREICHER: Our intent is not to

16 get streams off of the TMDL list, but to do the TMDL

17 using a correct standard.

MR. ETTINGER: Well, that's an

19 (unintelligible). The -- we have your testimony.

MR. HARSCH: Albert, in further

21 response to your snide comment, this proposal is not

22 intended to result in a degradation of the dissolved

23 oxygen water quality across the State of Illinois.

It is intended to reflect what is

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1 probably occurring across Illinois and gauge what

2 should be the protective water quality standard

3 based on scientific evidence that is necessary to

4 support the aquatic life that we find here, right,

5 Jim?

MR. GARVEY: Yeah.

MR. ETTINGER: Okay. Do you have any

8 further things you want to say?

MR. HARSCH: No. Thank you.

MR. ETTINGER: Okay. Fine.

Mr. Callahan, you say you've been

12 a member of the IEPA Nutrient Science Advisory Work

13 Group?

MR. CALLAHAN: Uh-huh.

MR. ETTINGER: Did you ever discuss

16 this proposal with the Nutrient Science Advisory

17 Work Group?

MR. CALLAHAN: Not to my recollection.

19 I --

MR. ETTINGER: Thank you. If you want

21 to give a speech, we can go on, but I think we've

22 had enough today.

MR. CALLAHAN: Well, I would like to

24 if I may.

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MR. ETTINGER: Go ahead.

MR. CALLAHAN: It was requested that

3 we present it to the agency for their review before

4 we presented it publicly to anyone. They helped us

5 with the original design and conceptualization of it

6 and shortly after that, it was presented publicly.

7 I believe Ms. Wentzel was at our March spring

8 conference. That was the public presentation of it

9 at that time.

MR. ETTINGER: Are you aware of any

11 studies that would enable us to trace particular

12 nutrient levels to dissolved oxygen numbers?

MR. CALLAHAN: Qualitatively,

14 probably; quantitatively, no. That's our problem.

15 We know that in certain streams -- I think

16 Mr. Mosher, this has been one of his principal

17 quandaries, and the whole nutrient issue is that

18 there are certain streams which reflect diurnal

19 oxygen stress at a given concentration of phosphorus

20 in this state and others at the same concentration

21 don't, so --

MR. ETTINGER: Are you aware of any

23 data that, for instance, would say that at, you

24 know, .6 phosphorus that we can expect a DO level

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1 of, you know, four, but at .8 we'll have a DO level

2 of five or three or something?

MR. CALLAHAN: No.

MR. ETTINGER: Is the nutrient study

5 group developing evidence like that?

MR. CALLAHAN: That's the principal

7 concern of the SFAR funded work that's being done.

8 This proceeding had its origins in that. We wanted

9 to basically evaluate what was going to be necessary

10 to afford DO protection early on in the work group's

11 existence so that we would be able, once that

12 relationship is established, to come up with an

13 adequate phosphorus concentration.

MR. ETTINGER: Okay. I just have one

15 more question. There's been various discussion

16 about implementation rules. Prior to this meeting

17 today, have you discussed with IEPA any sort of

18 timetable for development of implementation rules?

MR. HARSCH: In general terms, yes,

20 but in specifics, no. It's not surprising that

21 Illinois EPA has asked USEPA to review the rule.

22 That was part of the reason why we had a meeting.

23 And I think IEPA would be hopeful that USEPA would

24 provide some input and comment because I think it's

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1 IEPA's normal position that they don't want the

2 Pollution Control Board enacting a standard if USEPA

3 is not going to approve it or at least recommend

4 approval.

MR. ETTINGER: I asked a very simple

6 question and I'm getting a whole lot --

MR. HARSCH: Well, what I'm getting

8 to --

MR. ETTINGER: -- speculation as to

10 what IEPA is thinking about what USEPA is doing.

HEARING OFFICER McGILL: Not to

12 interrupt. It's late in the day and I think

13 everybody is getting a little testy. Let's just try

14 to maintain --

MR. ETTINGER: Right.

HEARING OFFICER McGILL: The question

17 was, I think, is there a time frame for

18 implementation of the IEPA implementation rules and

19 I think the answer was that you discussed it him

20 generally, but there wasn't any specific timeframe.

MR. HARSCH: Yeah. I think that that

22 process would start when the Illinois EPA has a

23 belief that this proposal isn't likely to proceed

24 through adoption by the Board after IEPA has gauged

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1 the response to what we've proposed, and I think

2 that's a reasonable position to take.

So, Albert, you know, the quick

4 answer is there's no set timetable. Do you and I

5 expect to probably sitting down with IEPA in the

6 next few months and beginning this process? I sure

7 hope so.

MR. ETTINGER: So we're expecting a

9 process to begin in the next few months that will

10 lead to the development of implementation rules; is

11 that correct?

MR. HARSCH: Correct.

MR. ETTINGER: Thank you. I think

14 we've had enough from me for today.

HEARING OFFICER McGILL: Okay. I'll

16 open it up one last time if anyone in the audience

17 has any questions for the IAWA's witnesses, if you

18 would please raise your hand.

MR. JOHNSON: I've got one question

20 for John. I think you said -- or in the prefiled

21 testimony it indicated that you were the one that

22 initially selected Drs. Garvey and Whiles to do the

23 report. Are they located close to you or you knew

24 them from previous -- how did you go about picking

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1 them to do your work for you?

MR. CALLAHAN: Southern Illinois

3 University caught my eye as a repository of fish

4 knowledge, because of Dr. Roy Haidinger, who 20 or

5 30 years ago did a great deal of work involving

6 wastewater effluence and the lower gradient streams

7 of down state Illinois, and it was through

8 Dr. Haidinger that I met Dr. Sheehan who assisted us

9 with the ammonia.

And, obviously, Dr. Garvey and

11 Dr. Whiles I knew through Dr. Sheehan, so that was

12 my place to start. I respect the integrity and the

13 reputation of their fisheries laboratory as I think

14 it is well-respected nationally, and I didn't have

15 to look any further.

HEARING OFFICER McGILL: Okay. I

17 don't think we have any other questions at this time

18 for the IAWA's witnesses. I'll ask is there anyone

19 else who wishes to testify today?

(No response.)

Seeing none, let's go off the record

22 for a moment.

(Whereupon, a discussion was had

off the record.)

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HEARING OFFICER McGILL: We just had a

2 conversation about the availability of today's

3 hearing transcript and the issues of the August 12th

4 hearing and prefiled testimony. Right now we have a

5 second hearing scheduled for August 12, 2004 at

6 1:00. Based on the large turnout we had today and

7 what we expect in August, we're going to need to

8 change the hearing room location.

It will still be in Springfield,

10 but we will not be in the Board hearing room at

11 1021 North Grand Avenue East, and I'll put out a

12 hearing officer order indicating the new room

13 location and a target for prefiling testimony for

14 the August 12th hearing, and there will in all

15 likelihood be a prefiled testimony deadline of

16 sometime in the week of August 2.

We know that it's kind of a tight

18 timeframe, but we'd like to keep the August 12th

19 date at least at this point and it's always very

20 helpful and meaningful to be able to review

21 testimony before the hearing date. I'll also

22 mention that we are receiving written public

23 comments and anyone may file written public comments

24 on this rulemaking proposal with the Board.

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203

If you would like to be on the

2 notice or service list, you can contact me. The

3 persons on the notice list receive Board orders and

4 hearing officer orders. Persons on the service list

5 would receive those orders as well as anything

6 that's filed in this proceeding, prefiled testimony,

7 public comments, things like that.

We're hoping to have today's

9 hearing transcript in the Board's offices by the end

10 of the week of July 5th, so probably by July 9th,

11 and then we'll post it as quickly as we can on our

12 web site. If anyone has any questions about any

13 procedural aspects of our rulemaking, you can

14 contact me at (312) 814-6983 or by e-mail at

15 mcgillr@ipcb.state.il.us.

I would like to on the record

17 thank everyone for their patience and flexibility

18 today as we scrambled to find an appropriately

19 -sized hearing room. I think we ended up doing

20 well, but I appreciate everyone's cooperation and

21 also the preparation that clearly went into getting

22 ready for today. The questions and responses I

23 think are helping to build a record, and I

24 appreciate everyone's efforts.

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Are there any other matters that

2 need to be addressed at this time?

(No response.)

Seeing none, I'd like to thank

5 everyone again and this hearing adjourned.

(Which were all the proceedings

had in the above-entitled cause

on this date.)

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205

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF DUPAGE )

I, MARIA E. SHOCKEY, CSR, do

6 hereby state that I am a court reporter doing

7 business in the City of Chicago, County of DuPage,

8 and State of Illinois; that I reported by means of

9 machine shorthand the proceedings held in the

10 foregoing cause, and that the foregoing is a true

11 and correct transcript of my shorthand notes so

12 taken as aforesaid.

_____________________

Maria E. Shockey, CSR

Notary Public,

DuPage County, Illinois

18 SUBSCRIBED AND SWORN TO

before me this ___ day

19 of ________, A.D., 2004.

_________________________

21 Notary Public

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