Microsoft Word - R04-25 081204 transcript

ILLINOIS POLLUTION CONTROL BOARD

AUGUST 12, 2004

5 IN THE MATTER OF:

PROPOSED AMENDMENTS TO

6 DISSOLVED OXYGEN STANDARD 35 ILL.

ADM. CODE 302.206

R04-25

(Rulemaking - Water)

The following proceedings were held before the Illinois

13 Pollution Control Board, August 12, 2004, at the Stratton

14 Office Building, Springfield, Illinois, before Ann Marie

15 Hollo, CSR, RMR.

Keefe Reporting Company

11 North 44th Street

Belleville, Illinois 62226

(618) 277-0190

(800) 244-0190

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APPEARANCES:

3 OFFICE OF THE ILLINOIS POLLUTION CONTROL BOARD

James R. Thompson Center, 100 W.

4 Randolph Street, Suite 11-500

Chicago, Illinois 60601

By: Richard R. McGill, Jr., Esq.

Hearing Officer

ILLINOIS POLLUTION CONTROL BOARD MEMBERS:

8 Andrea S. Moore, G. Tanner Girard, Ph.D, Thomas E. Johnson,

Esq.,

10 AND

11 Anand Rao, and Alisa Liu, P.E., Technical Staff Member

Gardner, Carton & Douglas

13 191 North Wacker Drive, Suite 3700

Chicago, Illinois 60606

14 By: Roy M. Harsch, Esq.

On behalf of IAWA

Environmental Law & Policy Center

16 35 East Wacker Drive, Suite 1300

Chicago, Illinois 60601

By: Albert Ettinger, Esq.

19 Illinois Department of Natural Resources

One Natural Resources Way

20 Springfield, Illinois 62702

By: Stanley Yonkauski, Jr., Esq.

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E X H I B I T S

4 NUMBER

MARKED FOR IDENTIFICATION

ADMITTED

6 Exhibit 9

7 Exhibit 10

8 Exhibit 11

9 Exhibits 12

10 Exhibit 13

130

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HEARING OFFICER MCGILL: I want to go on

the record. Good afternoon, and welcome to

this Illinois Pollution Control Board hearing.

My name is Richard McGill. I'm the hearing

officer for this rule-making proceeding

entitled, Proposed Amendments to Dissolved

Oxygen Standard 35 Illinois Administrative Code

302.206. The Board docket number for this rule

making is RO4-25. The Board received this

rule-making proposal on April 19, 2004 from the

Illinois Association of Wastewater Agencies, or

IAWA, on May 6th. The Board accepted the

proposal for hearing to amend the Board's

general use of water quality standards for

dissolved oxygen.

The Board held the first hearing in this

rule making on June 29 in Chicago. Today is

the second hearing. No other hearings are

presently scheduled.

Also on behalf of the Board to my left is

Board Member Andrea Moore, the lead board

member for this rule making. To her left,

Board Member Tanner Girard, and to his left

Board Member Thomas Johnson. To my right, two

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members of our technical unit, Anand Rao, and

Alisa Liu.

Would any of the board members present

like to make any remarks at this time?

BOARD MEMBER MOORE: I would. Thank you.

As Mr. McGill said, my name is Andrea Moore,

and I'm the lead board member on this rule

making.

And I, again, would like to welcome all of

you, and thank you very much for your

participation and for attending today. We

appreciate all the hard work that has been

done, and clearly everyone went to a lot of

effort in establishing this proposal and the

testimony questioning at the hearing, all the

filings. There's been a lot of effort put

forward.

I'd like to take this opportunity to

emphasize the importance of the subject we're

dealing with. And I'll quote Toby Frevert who

is from the IEPA at the last hearing. He

generally said that this is one of the most

important -- one of the most important rule

makings in 30 years as it regards to water

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quality. So it is incumbent upon all of us to

establish a good and solid record from the

Board to make a decision.

So with that in mind, I am hoping that

everyone will and all participants to be

cooperative and proceed in a civil manner and

assist us in developing a record that's

complete.

And just to be clear for today, we are not

ruling today on the motion pending that is to

suspend the consideration of this rule making.

The entire Board, through a board order, will

rule on that motion. The purpose of today's

hearing is not to make legal arguments on that

motion or otherwise, but rather to gather

information relating to the dissolved oxygen

proposal. Thank you.

HEARING OFFICER MCGILL: Are there any

other board members present that would like to

make a comment?

With that, as I mentioned before we went

on the record, if you would like to testify

today, and if not already, inform me. There is

a sign-in sheet for testifying located up here

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in front of the room.

Today's proceeding is governed by the

Board's procedural rules. All information that

is relevant and not repetitious or privileged

will be admitted into the record.

We will begin IAWA's testimony followed by

any questions the Board or members of the

audience may have for the IAWA's witnesses.

Please note that any questions posed by board

members or staff are designed to help develop

the complete record for the Board's decision

and do not reflect any bias.

After the questions, we anticipate

receiving testimony from Dr. David Thomas,

Chief of the Illinois Natural History Survey.

And after that, we hope to receive an update

from a representative of the Illinois

Environmental Protection Agency on state holder

discussions regarding implementation rules.

After that, time permitting, anyone else may

testify regarding the proposal.

Like all witnesses, those who wish to

testify will be sworn in and may be asked

questions about their testimony. And also if

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we have time, we will take up the Department of

Commerce and Economic Opportunity's decisions

to not conduct an economic impact study on this

proposal.

We'll conclude today's hearing with a few

procedure items.

For the court reporter, who is

transcribing today's proceeding, I'd ask that

you please speak up and don't talk over one

another, so that we produce a clear transcript.

With that, are there any questions about

the procedures we will follow today? Seeing

none, I'd ask that the court reporter to swear

the IAWA's witnesses and attorney collectively

at this point.

(Whereupon the witnesses were sworn.)

HEARING OFFICER MCGILL: Thank you. And

now, the IAWA's attorney, Roy Harsch, will

begin the rule-making presentation today.

MR. HARSCH: Thank you very much. We have

pre-filed testimony from Dr. Garvey. And

attached to Dr. Garvey's pre-filed testimony is

a report, dated July 2004, entitled, "Long-term

Dynamics of Oxygen and Temperature in Illinois

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Streams." I would move that a copy of the

pre-filed testimony, along with his report, be

entered as an exhibit, marked as an exhibit.

HEARING OFFICER MCGILL: If I could have

that. Thank you.

Is there any objection to entering this

document as a hearing exhibit? Seeing none,

this will be Hearing Exhibit Number 9.

(Whereby, the Hearing Officer

marked Exhibit Number 9.)

MR. HARSCH: An additional exhibit that I

would like marked is a copy of Dr. Garvey's and

Dr. Whiles' report, dated April 2004. That is

in the record. As Dr. Garvey will testify, he

has received comments back from Mr. Chapman who

is the author of the National Criteria

Document. And those comments are either in

blue or gray. I've got some multiple copies of

that. I have got that marked as an exhibit.

HEARING OFFICER MCGILL: We'll mark this

as Exhibit 10.

(Whereby, the Hearing Officer

marked Exhibit Number 10.)

HEARING OFFICER MCGILL: Are you moving to

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have that entered at this time?

MR. HARSCH: That would be fine.

HEARING OFFICER MCGILL: Any objections

to entering this document as a hearing exhibit?

MS. WILLIAMS: I'd just like to clarify

what is it, and do we have copies?

MR. HARSCH: You have copies. It's the

comments back from Mr. Chapman.

MS. WILLIAMS: Yes, I'm Deborah Williams

from the Illinois EPA. Sorry.

MR. HARSCH: They were sent in email form

to Toby.

HEARING OFFICER MCGILL: Could we go off

the record for a moment?

(Whereupon there was a short

discussion off the record.)

MR. HARSCH: And I also have seven extra

copies of Dr. Garvey's written testimony if

anybody didn't get it and would like one.

HEARING OFFICER MCGILL: Let's go back on

the record. Where we left off, the Agency

Attorney Deborah Williams had a question about

the document that's been moved to be entered as

a hearing exhibit. I believe it's the

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Garvey/Whiles report reflecting comments in the

margin by Chapman, the author of the 1986 NCD.

Is that a fair characterization, Mr. Harsch?

MR. HARSCH: Yes, it is.

HEARING OFFICER MCGILL: I'll just repeat.

Is there any objection to entering that

document as a hearing exhibit? Seeing none,

I'll enter that as Hearing Exhibit 10.

(Whereupon Exhibit Number 10 was entered

into evidence.)

MR. HARSCH: At this point in time, I'd

like to call Dr. Garvey.

HEARING OFFICER MCGILL: Okay.

MR. HARSCH: Dr. Garvey, you've previously

been sworn. Would you please present your

pre-filed written testimony.

DR. GARVEY: Okay. Thank you for the

opportunity to testify before the Illinois

Pollution Control Board during this second

hearing in Springfield, Illinois.

As I noted in the first hearing before the

Board, I am an assistant professor in the

Fisheries and Illinois Aquaculture Center and

the Department of Zoology at Southern Illinois

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University at Carbondale. My research

interests revolve around fish and aquatic

ecology in lakes and streams.

The Illinois Association of Wastewater

Agencies asked Dr. Matt Whiles and me to assess

the current Illinois state dissolved oxygen

standard, which requires that at no time shall

concentrations below 5 milligrams per liter and

for at least 16 hours each day they must remain

above 6 milligrams per liter.

In our report, we concluded that the

standard is unrealistic for most streams in the

state, because oxygen concentrations fluctuate

both seasonally and daily, often declining

below the state's standards. These conclusions

were based largely on published studies

summarizing research conducted outside of

Illinois in addition to unpublished data in

tributaries of the Ohio River, which were

discussed at the first hearing.

Proposed recommendations. To make the

state general use standard more realistic,

Dr. Whiles and I recommended that during March

through -- March 1 through June 30th, when

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early life stages of sensitive species are

present, a minimum identical to the current

Illinois standard of 5 milligrams per liter in

a seven-day mean of 6 milligrams per liter

should be adopted. During warmer productive

months and the remainder of the year, when

species with sensitive early life stages have

largely completed reproduction, we recommend a

minimum of 3.5 milligrams per liter and a

seven-day mean minimum of 4 milligrams per

liter. It is important to emphasize that we

included running means to avoid chronically low

dissolved oxygen concentrations. For the

proposed standard to be supported, minima must

not be violated, ensuring that concentrations

never approach critically lethal limits.

Analysis of Illinois stream data. In

response to questions about fluctuations of

oxygen in Illinois surface waters, I analyzed

the applicability of both the current state

standard and the proposed standard to eight

Illinois streams, in which dissolved oxygen and

temperature were intensively monitored. My

analysis is attached as Exhibit 1.

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I was made aware of this data during a

meeting with the USEPA on June 18, 2004. It is

my understanding that the United States

Geological Survey, further known as USGS, and

Illinois Environmental Protection Agency,

further known as IEPA, began collecting this

data to address concerns about the

applicability of the current state standard of

streams in the state. I requested these data

from Paul Terrio, a hydrologist, with the USGS

shortly following the first hearing.

I also reviewed oxygen and temperature

data in other reports for streams in Illinois.

I have summarized my analysis of these data in

a recent report submitted to the Illinois

Association of Wastewater Agencies, and

submitted as Exhibit 1.

Paul Terrio of USGS, Robert Mosher of

IEPA, and Matt Whiles of Southern Illinois

University, have provided comments on this

report that I have incorporated into the final

draft.

These long-term data are unprecedented. I

am aware of no other similarly comprehensive

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data set for streams of the Midwestern United

States. We now have access to robust data that

will allow us to ground truth the proposed

dissolved oxygen standards.

The eight intensively studied stream

reaches were North Fork Vermilion River by

Bismarck, Middle Fork Vermilion River near

Oakwood, Vermilion River near Danville, Lusk

Creek near Eddyville, Mazon River near Coal

City, Rayse Creek near Waltonville, Salt Creek

near Western Strings, and Illinois River near

Valley City.

During late summer 2001 through fall 2003,

semi-continuous dissolved oxygen and

temperature data were collected by IEPA and

USGS. The stream segments varied widely in

physical characteristics, surrounding land use

and latitude. Five of the eight streams

segments are currently considered impaired and

included on the most recent 303-d list compiled

by IEPA. The nature of impairment varies from

nutrient enrichment in Rayse Creek to mercury

and PCB contamination in the Illinois River.

Dissolved oxygen patterns in Illinois

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streams. The results from this analysis uphold

the conclusion of the Garvey and Whiles report.

As expected, dissolved oxygen concentrations

declined in all streams during summer, with

diurnal fluctuations varying among them. All

eight streams violated the Illinois state's

standard, although violations occurred as

infrequently as 1 percent of days and as

frequently as 65 percent of days. Among the

unlisted, unimpaired stream segments, oxygen

dynamics varied widely with Lusk Creek, a

functioning stream in a forested watershed,

regularly violating the Illinois standard of 5

milligrams per liter during 22 percent of days.

In two of the impaired, 303-d listed streams,

the Illinois standard was violated frequently,

with concentrations often declining below 2

milligrams per liter, which is regarded to be

lethal for many aquatic organisms. However, in

other listed streams, dissolved concentrations

were typically greater than the 5 milligrams

per liter minimum.

We might expect that nutrient enrichment

is a primary factor affecting dissolved oxygen

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dynamics. Streams with greater nutrient

loading should have lower oxygen. However,

Salt Creek, an impaired stream, with low biotic

integrity and high nutrient enrichment, had

higher average dissolved oxygen concentrations

than Mazon River, which was only listed for PCB

and pathway contamination. Nutrient enrichment

must interact with other factors, such as

stream physical habitat to affect oxygen

dynamics.

Application for proposed standard.

Adoption of the proposed standard greatly

reduces the number of violations in unimpaired

streams, such as Lusk Creek, while still

capturing violations in impaired streams. In

fact, the proposed standard increased the

frequency of violations in two of the severely

oxygen-impaired streams and identified the time

period when oxygen problems occurred. It may

be tempting to regard Lusk Creek as an

intermediate between a functioning and an

impaired system and suggest that its frequent

violations of the current state standard are a

warning signal. However, this is quite far

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from the truth. This stream segment is in the

Lusk Creek Wilderness area of the Shawnee

National Forest and is considered to be in a

pristine state, with a highly regarded intact

and diverse fish and macroinvertebrate

assemblage.

A concern of the Board during the first

hearing was that minimum oxygen concentration

of 3.5 milligrams per liter, which occurred

during summer in Lusk Creek, would negatively

affect summer-spawned, early life stages of

resident species. It is quite clear, given the

robust assemblage of this system, that natural

summar declines in dissolved oxygen

concentration below the state mandated 5

milligrams per liter and occasionally reaching

3.5 milligrams per liter, did not negatively

affect fishes reproducing during this time.

Lusk Creek demonstrates that seasonally

appropriate proposed standard protects both

spring and summer reproducing species.

Temperature effects. Dissolved oxygen

concentrations were quantified in a pooled area

of Lusk Creek as recommended in the

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implementation guidelines of the Garvey and

Whiles report. It is in this area that we

would expect to encounter the most conservative

dissolved oxygen concentrations. In contrast,

the Middle Fork of the Vermilion River, in

which oxygen concentrations were consistently

the highest, had a logger located about a

hundred meters below riffle area, where we

would expect oxygenated area to be abundant.

Although it may be argued that Lusk Creek is a

Southern Illinois stream, and warm temperatures

may be responsible for declines in oxygen

during summer, dissolved oxygen concentrations

were lowest at intermediate summer

temperatures, indicating that it is not the

seasonal temperature maxima of streams that

reduce oxygen concentrations.

Further, I found no substantive

differences in temperature among streams across

the north-south gradient of the state. These

data effectively show that the proposed

standard effectively captures oxygenated

dynamics that occur in natural fully

functioning Illinois streams, such as Lusk

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Creek. A revised general use dissolved oxygen

standard in Illinois such as that proposed by

Garvey and Whiles is needed.

Habitat modification. Some investigators

have argued that artificially pooling streams

and rivers by building dams will reduce oxygen

and therefore negatively affect resident

species. Recent reports in the Fox and DuPage

Rivers have shown the pooled areas of streams

violate the current standard more than open

reaches and that fish composition differs

between them. The problem with implicating

violations of the current dissolved oxygen

standard as responsible for altering or

degrading species composition in pooled reaches

is that the habitat of the river changes as

well as the oxygen dynamics. And in short,

flow declines, sedimentation increases, and

more fish that rely on accumulation of organic

matter and open water will prosper. Oxygen

declines because of the increased biochemical

oxygen demand of the sediment and increased

retention time of the water. As long as oxygen

concentrations remain above the proposed

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standard in pools, species adapted to pool

conditions will be abundant while flow-dwelling

species will be rare or absent. Of course, if

oxygen concentrations decline below the

proposed standards, even species adapted to

pooled conditions will cease to persist.

Garvey and Whiles recommended monitoring pooled

areas of natural streams because of their lower

expected oxygen concentration.

The eight intensively monitored streams

provide more insight into the problem of

teasing apart changes among habitat, oxygen and

other quality parameters. Across the streams,

no relationship existed between biotic

integrity scores and oxygen minima as estimated

by frequency of violations of either the

current or proposed standards. Typically,

integrity scores are closely related to

measures of habitat quality, which include

factors such as the stream's substrate, habitat

diversity and riparian vegetation. Habitat

quality fosters the diversity of organisms

providing food, shelter and reproductive areas.

As such, it appears that habitat, rather than

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oxygen, primarily influences species

composition. Reduced oxygen concentrations and

increased diurnal fluctuations are a secondary

effect of habitat degradation or modification.

Comparison between oxygen and ammonia

standards. The most conservative ammonia

standards for the state are designed to protect

early life stages of all fish species for the

duration of spawning, which may extend through

October.

In the first hearing, I was asked why the

most conservative proposed oxygen standard

extended only through June, while the

conservative ammonia standard is extended

through the entire reproductive cycle of

fishes. Dynamics of total ammonia and oxygen

differ in streams. The total concentration of

ammonia in streams typically depends on

discharge and does not vary naturally on a

seasonal basis. Further, the toxicity of total

ammonia increases with increasing in

temperature during summer, necessitating

stringent standards for all early life stages

of fish, particularly those that are produced

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during summer. Conversely, the data summarized

in my report clearly show that oxygen

concentrations in the pooled area of a natural

functioning stream do decline well below the

current standard during summer, but not below

proposed, seasonally appropriate one. As I

noted earlier, because the community in such a

stream is intact, summer-spawning fish species

must reproduce successfully during this time,

demonstrating that the proposed standard better

reflects natural fluctuations in this system

while protecting resident fishes.

Review by Gary Chapman, author of the

National Criteria Document. To determine

whether the seasonal standard was consistent

with the United States Environmental Protection

Agency's 1986 Natural Criteria Document, I

solicited a review from its author, Gary

Chapman, following the first hearing. He had

provided a review to the Water Quality Section

of the Illinois Chapter of the American

Fisheries Society on June 28, 2004, and he

forwarded this review to me.

To summarize, he felt that the timing of

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seasonal standards depended on the working

knowledge of fish community in the state and

should be, quote, "left to the experts"

unquote. His largest concern was the omission

of a 30-day running average of 5.5 milligram

per liter in the proposed standards. Although

I still think that such a standard is generated

over such a large time scale that it is

generally biologically meaningless, it may be

worth considering as part of the proposed

standards, given his expert opinion.

His other comments were relatively minor,

revolving around the interpretation of recent

findings in dissolved oxygen research. He

supported our implementation recommendations

and thought they should be adopted.

Regarding protection of fish during

summer, he commented, quote, "I have seen no

data over the past 20 years that would indicate

that the 3 milligram per liter minimum would

not be adequately protective against lethal

effects", end quote.

Chemical interactions with oxygen. In the

first hearing, I was asked about the potential

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effects of low dissolved oxygen concentrations

on water chemistry in streams and lakes. To

the best of my knowledge, reduction-oxidation

chemical reactions are unaffected by oxygen

concentrations until they decline far below the

proposed 3.5 milligram per liter minimum.

Conclusions. In summary, much more is

known about fluctuations in oxygen and

temperature in streams in the State of Illinois

than during the first hearing. The results of

the new analysis confirm the conclusions of the

Garvey and While report for other aquatic

systems. Semi-continuous measurements in

pristine, forested Lusk Creek were quantified

in the appropriate location and provide a

useful baseline by which general expectations

for dissolved oxygen concentrations can be

generated. Although the proposed standards may

be generally applied across the state, either

regional standards or a stream classification

system should be adopted to better reflect use

expectations. Such a system will need to

incorporate biotic integrity, habitat quality,

and water quality goals rather than focussing

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solely on dissolved oxygen expectations. Given

the data from the Illinois streams and other

systems in the state, the likelihood that the

current dissolved oxygen standard will not

apply to many of these systems and produce

false violations is confirmed. Adopting the

proposed standard and standardized monitoring

outlined in the Garvey and Whiles report will

not only reduce the probability of detecting a

false violation in functioning streams, but it

will provide robust, long-term water quality

data sets for improving management of surface

water in the state.

QUESTIONS BY MR. HARSCH:

Q In terms of clarifying questions. When

16 you referred to Mr. Chapman's comments, that would

17 be what has been marked and accepted into evidence

18 as Exhibit 10?

A That is correct.

HEARING OFFICER MCGILL: Mr. Harsch, you

have some additional witnesses today?

MR. HARSCH: I might have a couple

clarifying questions.

HEARING OFFICER MCGILL: And you wanted to

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follow up with now?

MR. HARSCH: Right.

Q Dr. Garvey, essentially then,

4 Mr. Chapman's recommendation to include the 5.5 day

5 mean for the summer months, that was contained in

6 the National Criteria Document as the suggested

7 standards?

A Yes.

MR. HARSCH: On behalf of IAWA, we would

welcome that change if the Board chose to make

that change.

Q When you're talking about the

13 implementation sampling procedures set forth in your

14 report, if I show you a copy of an email, are these

15 the recommendations that are consistent with your

16 recommendations?

A Those are consistent with our

18 recommendations on page 39 of the original report

19 that we, Whiles and I, authored, and Gary Chapman in

20 his comments suggested that that would be the ideal,

21 or at least a great starting point from

22 implementation guidelines associated with dissolved

23 oxygen.

MR. HARSCH: At this point, I would like

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to have this marked and accepted into evidence

as an email that I have referenced, I believe,

in our response to pending motion and as an

email I've sent out to a number of folks that

are here today and took part in the state

holders' meeting this morning.

HEARING OFFICER MCGILL: Let's go off the

record for a moment.

(Whereupon there was a short

discussion off the record.)

HEARING OFFICER MCGILL: Let's go back on

the record. There's been a motion to enter the

document Mr. Harsch described as a hearing

exhibit. It would be Hearing Exhibit 11, a

one-page copy of an email regarding parameters

for implementation rules. Is there any

objection to entering this document as a

hearing exhibit? Seeing none, I'll enter that

as Hearing Exhibit 11.

(Whereby, the Hearing Officer

marked Exhibit Number 11 and

entered it into evidence.)

Q (By Mr. Harsch) Dr. Garvey, if the DO

24 values are sampled in accordance with procedures set

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1 forth in Exhibit 11, based on your report, is it

2 your -- what is your opinion regarding whether the

3 5.0 and 3.5 minimum values, would they be fully

4 protective of all of the aquatic life you would

5 expect in the system?

A According to the implementation guidelines

7 in this exhibit, it is my feeling and it is both by

8 the National Criteria Document and the report that

9 Whiles and I authored to be protective of all

10 aquatic life in Illinois.

Q That would mean that if you took a sample

12 at the sediment water interface, which would not be

13 in accordance with Exhibit 11, would you not expect

14 that DO value to be below three and a half?

A Yes.

Q Or be a lower value than what you would

17 expect, taking two-thirds of the stream depth?

A Yeah, that's correct. And in fact, I have

19 data from tributaries to show that that is the case.

20 If you take a reading near the sediment water

21 interface, it's going to be quite low, and that's

22 because there's high biological oxygen occurring at

23 that point. And it's essentially -- it might or

24 might not be reflective of dissolved oxygen

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1 concentrations in the remainder of the water column.

Q And would that account, in part account

3 for the difference in the macroinvertebrate you

4 would expect to habitat -- to live in those pooled

5 areas versus, say, the riffled area?

A Correct. In pooled areas, you're going to

7 expect a different aquatic life assemblage than you

8 would in a riffle area, which is the area where

9 there's fast-flowing water being re-aerated. If you

10 have a lot of organic matter accumulation, that

11 might occur in the acquiescent area, in a stream or

12 pool area, typically what you're going to have is a

13 fair amount of respiration by the microbes that live

14 in that organic matter, and it's going to naturally

15 consume oxygen. That's the reason why you see low

16 oxygen concentrations at that point.

Q Based on your review of the intensive

18 sampling data from the eight locations, do you have

19 any opinion as to what would happen with respect to

20 the ability of those segments that are listed for

21 impaired, for DO purposes, if you remove the point

22 source, the non-point source biological oxygen

23 demand for those segments?

A I think the closest stream segment that we

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1 have that shows that would be the Lusk Creek system.

2 It's an over 70 percent forested area. There's no

3 wastewater discharge in the vicinity or any other

4 discharge in the vicinity that I know of. Very

5 little agriculture.

So that particular system would be

7 the one that we would sort of look to as being the

8 system that's relatively unaffected by human

9 activities, the best we can. And, of course, that

10 was the system that routinely dropped to dissolved

11 oxygen concentrations that were near what our

12 proposed minimum is for the state. Suggesting then,

13 that there's other processes that are important.

Now, water quality or essentially

15 dissolved oxygen was quantified in a pooled area of

16 that particular stream as outlined in our

17 implementation guidelines in the report. And so

18 that would be in the place where we would expect to

19 see the lowest oxygen concentration to occur at any

20 given time. So that would be our best probably

21 stream segment for comparison for the other states

22 as I noted in my testimony.

Q So is it then your opinion that for those

24 impaired stretches that were sampled, if you remove

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1 the input point, the nonpoint source, those segments

2 would still not comply with 5 and 6 current

3 standard, based on what you observed in Lusk Creek?

A Well, it's tough to say. I'd probably say

5 the closest stream to compare the Lusk Creek,

6 because they're at the same latitude, would be Rayse

7 Creek, and that's the one who has a lot of

8 agriculture in the watershedding. Typically, it was

9 very low in terms of oxygen concentration during the

10 entire summer. So I consider that severely

11 impaired. If you reduce the nonpoint and the point

12 source, I would expect it probably to behave the

13 most like Lusk. They're similar in size, similar in

14 the occasional reductions in flow that occur. So we

15 would expect Rayse, if there was enough ripe

16 vegetation, to behave probably most closely to Lusk.

Q Have you had a recent opportunity to

18 discuss -- have you had recent opportunities to

19 discuss further the question regarding oxidation

20 reduction potential since the preparation of your

21 written testimony?

A Yes, I have. That was a question that

23 I've heard conflicting information about over time.

24 The general concern is, if I understand it, in a

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1 situation where you get close to that 3.5-milligram

2 per liter minimum in dissolved oxygen concentration

3 during the summer time, will that affect, for

4 example, total phosphorous in the water column.

5 Typically what would happen in the hypolimnion of

6 lakes, that the area of the bottom of lakes, it

7 tends to be completely oxygenated depleted during

8 the summertime. And in a stratified lake, there is

9 phosphorous, which is a chemical that obviously is

10 important from a perspective of available nutrient

11 for algae in particular streams and lakes. When

12 it's combined with oxygen, it tends to be fairly

13 voculent; you know, actually precipitate out of a

14 particular system and hand down to sediments. But

15 when oxygen is reduced in a particular system,

16 phosphorous then can become available. What it does

17 is it becomes more soluble, and will come back up in

18 the water column and will be easily consumed,

19 because it becomes easily available to the plankton,

20 to the other plants that are in a particular system.

And so the concern is if we get down

22 around 3.5 milligrams per liter, that will create a

23 situation where oxygen becomes essentially limited

24 around where the phosphorous and the sediment is,

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1 and then phosphorous becomes more available from the

2 sediments.

I talked with folks who are

4 biogeochemists. In general, basically they said

5 that you would have to have basically dissolved

6 oxygen concentrations near zero for those conditions

7 to occur in the sediment. So probably under the

8 conditions that we suggest for the summer of the

9 state, you shouldn't run into the problem with

10 having phosphorous suspended from the sediment.

MR. HARSCH: At this point, I would like

to mark -- I apologize, because we didn't copy

it correctly with the date. It appeared in the

Daily Herald approximately a week and a half

ago, a letter to the editor. And I have

copies. I'd like to mark this as an exhibit.

And I will provide the date to the Board that

it actually appeared in the Daily Herald.

HEARING OFFICER MCGILL: And do you have a

witness who's going to be testifying regarding

this?

MR. HARSCH: Just responding to it.

Basically it's a letter to the editor.

HEARING OFFICER MCGILL: Mr. Harsch, if I

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could just ask you to bring your microphone

closer. Thank you.

MR. HARSCH: It was a letter to the editor

that appeared in the Daily Herald approximately

two weeks ago. And, again, I will apologize

and will clarify the exact date. By David Horn

from Aurora, entitled, "Find Effort to Lower

Fox Oxygen Criteria."

Q Dr. Garvey, you reviewed this letter?

A You know, I've just looked over it very

11 briefly. Since I have seen it just today, it's been

12 difficult for me to, you know, come up with a strong

13 opinion one way or another.

Q But is it the intent, as you understand

15 it, of IAWA to propose a standard that, in fact,

16 will result in the stream dissolved oxygen water

17 quality?

A Certainly not, or I wouldn't be working

19 with you.

Q Is your opinion that adoption of the

21 standard by the Board, will that lead to a lower

22 water quality in terms of dissolved oxygen in the

23 Illinois streams?

A No. My belief is that it will not have an

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1 effect on the dissolved oxygen concentration in the

2 streams of Illinois.

Q And is that in part based on your

4 understanding of how your standards apply to those

5 segments where there was continuous data available?

A Absolutely. The continuous data certainly

7 increased my confidence, and many of the conclusions

8 that Whiles and I made in our report.

Essentially, we believe that in these

10 natural systems in Illinois, we have natural

11 fluctuations in oxygen that often decline 3.5

12 milligrams per liter. And they will sustain 3.5,

13 sustain an essentially intact functioning aquatic

14 assemblage in the state.

MR. HARSCH: Mr. Callahan, do you have

anything further in response to what has

been -- this letter to the editor?

HEARING OFFICER MCGILL: If I could

interrupt just for a moment. You have yet to

give your full name and title.

MR. CALLAHAN: My name is John Michael

Callahan, and I'm the Director of the

Bloomington Normal Water Reclamation District.

I testified previously at first hearing, and

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I've been sworn in today as part of this panel.

I'd simply like to call the Board's

attention to the fact that I think the general

tone of that editorial implies that this

standard will, in one way or another, allow a

deterioration of the water quality of waters of

this state by not demanding the minimum, 5.0

milligram per liter, which we now have.

I think as Dr. Garvey has presented here

this afternoon in his testimony with the EPA

and geological survey data, our original

contentions at first hearing have been borne

out. Our national ambient systems violate this

standard in and of themselves. Once again, the

violation of this standard removed from a

biological context and applied to today's

regulatory context results in a number of

actions through the total maximum daily loading

program, as well as development of nutrient

standards, which become particularly critically

important in terms of cost effectiveness.

So, again, I would reiterate the point

that the standard, as it is being proposed, is

not going to allow any slippage from where we

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are today, but what it's more going to

precisely do is define where we need to go in

the future, in terms of realistically enhancing

our water quality.

MR. STRICHER: Dennis Stricher, Director

of Wasterwater Systems with the City of

Elmhurst, Illinois, and representing IAWA.

HEARING OFFICER MCGILL: This gentleman

has also been sworn as part of the panel, just

so the record reflects that. Thank you.

MR. STRICHER: When IAWA undertook this

effort three years ago now, our understanding

of the dissolved oxygen standard was that it

was flawed, and that it needed to be corrected,

and that it would be used, as Mike has just

stated, to develop future water quality

standards, specifically for nutrients. Our

goal was to develop a correct standard, a

foundation from which IEPA and those who are

charged with developing these standards can

work from the dissolved oxygen. Our goal is a

crucial foundation block or fundamental value

that will be used in developing these future

standards.

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Our goal -- in reading these opinions,

these newspaper articles and some letters that

have been submitted, it's frustrating because

we feel that the goal of IAWA has been

misunderstood. And that, in fact, the science

that Doctors Garvey and Whiles have presented

here has been misunderstood. Our goal is not

at all to reduce at all the water quality

standard, but, rather, to develop a more

accurate way. So that's our testimony.

MR. HARSCH: That would conclude the

questioning that we have from the prior

testimony.

HEARING OFFICER MCGILL: We still have the

motion to enter this letter to the editor of

the Daily Herald, the letter from David J.

Horn, we will enter that as a hearing exhibit.

Is there any objection? Seeing none, I'll mark

that as Exhibit 12.

(Whereby, the Hearing Officer

marked Exhibit Number 12 and

admitted same into evidence.)

HEARING OFFICER MCGILL: Let's go off the

record for a moment please.

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(Whereupon there was a short

discussion off the record.)

HEARING OFFICER MCGILL: Back on the

record. We'll move on to questions for the

IAWA's witnesses.

Member Girard, you had a question?

BOARD MEMBER GIRARD: Thank you. Yes, I

did. In fact, I had several questions, but

Mr. Harsch did a good job of asking them

before, but he did leave me one.

QUESTIONS BY BOARD MEMBER GIRARD:

Q So Dr. Chapman (sic), on page 4 of your

13 testimony there, under the subsection, application

14 to proposed standard, it's actually about the second

15 sentence, you mentioned that the proposed standard

16 increased the frequency of violations in two of the

17 severely oxygen-impaired streams and identified the

18 time period when oxygen problems occurred. Could

19 you please explain how that happened?

A Essentially because we're looking at the

21 proportion or the frequency of violations that

22 occurred in the spring where we had the one

23 standard, and then during the remainder of the year

24 we had the other standard. Essentially what we did

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1 is we looked -- well, I looked at the continuous

2 data for those particular seasons. So I looked at

3 the spring continuous data, dissolved oxygen data

4 that we had semi-continuous.

Just to clarify, the data was

6 collected every half hour. So we have a very good

7 estimate of fluctuations in this particular stream.

And, of course, as there are with all

9 data, there are gaps here and there. And the reason

10 why those gaps occurred is because, you know, if the

11 probe was down or something like that. So we

12 excluded any data that looked as if they were

13 suspect from the analysis. Typically, if you get a

14 really low dissolved oxygen reading and there wasn't

15 any prior to that, or after that, something went on

16 with the probe. So those data were excluded from

17 the set.

Essentially, then, what we did in the

19 analysis was take a look at the proportion of dates

20 essentially when dissolved oxygen concentrations

21 went below that particular standard, either the

22 current Illinois one or the proposed one. And what

23 we found is, or what I found -- I keep saying

24 "we" -- is essentially that if you use the current

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1 Illinois standard, which is a one size fits all for

2 all seasons, you get a certain number of days or

3 proportion of days that that minimum was violated.

4 When we -- when I apply the proposed standard to

5 that particular analysis, what I'm doing is dividing

6 up our criteria for the spring months when we expect

7 to have early life history of fishes present

8 particularly, and then also the summer months when

9 we expected that most spawning to be completed. And

10 essentially if there's a system where most of the

11 violations or the oxygen became very low during the

12 summertime, the relative proportion of dates during

13 the summer can actually increase in terms of

14 relative to looking at it during the entire season

15 with the current standard.

Essentially, so that's the reason why

17 it didn't actually increase the number of the

18 proportion of dates data violation occurred is

19 because you're focussing primarily on the months

20 when the violations are occurring. And in case it

21 would be during the summer when we got the

22 3.5-milligram per liter standard.

Does that answer your question?

So essentially what it does is it

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1 isolates one that during the summertime we have a

2 3.5-milligram per liter -- well, let me roll back

3 and just find out how much you understand, just

4 exactly what.

So essentially we propose, Whiles and

6 I propose two standards. We have the springtime

7 standard of 5 milligrams per liter minimum. And I'm

8 just going to stick to that right now. I'm not

9 talking about average. And we have the summertime

10 average or summertime standard, which is

11 3.5 milligrams per liter. And essentially what we

12 found in the summertime is that gives us one idea of

13 when the standard is being violated versus during

14 the springtime when the standard can be violated.

15 And so, essentially, in the two streams where we

16 essentially had a higher level of impairment was in

17 the summertime, which the Illinois standard cannot

18 detect because it's basically for the entire year.

I'm not sure if I made that clear or

20 not. Can you clarify and tell me where you're

21 confused? I'm really sorry I'm butchering this.

It's obvious we have to apply two

23 different standards to two different time periods.

24 It gets complicated.

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Q What I'm trying to find out is, if you

2 know, from your work with the data, you see anything

3 that would give us some idea on how often these

4 measurements need to be taken, if you have any sort

5 of recommendations on that. It's different for when

6 you're talking semi-continuous, which is what we're

7 doing, whether you're taking a reading once a day

8 and you just happen to hit certain cycles, or

9 whether you're taking, as you said, every half hour,

10 and you know, how much data we need to collect to be

11 able to be comfortable with, you know, as you said,

12 not going below the toxic levels.

A Okay. Let me roll back and say that the

14 data said, as I mentioned in my testimony, is

15 unprecedented, because it gave us almost -- it's a

16 great data set because it provides us with daily

17 fluctuations in dissolved oxygen concentration as

18 well as seasonal average that we could look at as

19 well. Some people might argue that it's too many,

20 too much data to work with because it does take a

21 lot of time to get the data worked up and then try

22 to get the maximum and minimums for each day,

23 calculate the averages and do all those sorts of

24 things. However, you can write statistical programs

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1 to sort of tease that apart.

The historical tool that these data

3 provide are unprecedented because what they can do

4 is give us a long term on oxygen concentrations and

5 how they fluctuate in these particular systems and

6 pinpoint the time of year and also the time of day

7 that we're expecting to see oxygen decline.

So, essentially, as we continue to do

9 this, and hopefully if we do, adopt these standards

10 in the implementation procedures of this continuous

11 or semi-continuous monitoring program associated

12 with it, it will help us to further refine periods

13 of time during the year when we should expect to see

14 the important decline in oxygen, to secure whether

15 it's in the springtime or in the summertime.

Currently with what we have in the

17 state right now, we can't do that because, you know,

18 we're basically taking one grab sample, and if it's

19 above 5, we're fine. We don't know anything else

20 about the system. But if we implement this set of

21 procedures, I think we'll be able to understand more

22 about that particularly, because we can look to see

23 whether most of the violations occurred during that

24 summer period when the minimum was 3.5 milligrams

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1 per year or most of the violations occurred during

2 the springtime when essentially the standard was

3 5 milligrams per year.

Now, what I found in the analysis is

5 that most of the violations occurred in that summer

6 period, which is really scary, because that means

7 that a lot of these systems were declining far

8 below -- well, not all of these systems, but two of

9 the systems are declining far below 3.5 milligrams

10 per liter, which established what would be the

11 minimum wasn't a critical lethal impact on

12 particular organisms of that particular system,

13 which would suggest to us that summertime is the

14 main time that we need to be working on restoration

15 of those particular streams that have impacted, and

16 we wouldn't be able to do that, basically look at

17 the data, the way we do for the 5-milligram per

18 liter standard.

So hopefully that explained a little

20 bit better than my butchering of my explanation

21 prior to that. Is that clear or --

Q Well, yeah. That just brings up some

23 other questions.

A Sure. That's great.

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Q You know, if we go to a different

2 standard, does that mean we're going to have to quit

3 semi-continuous loggers on most stream segments in

4 the state?

A Well, personally, my hope would be that we

6 would be able to identify the critical times of the

7 year when we need to be out monitoring.

Now, currently most of my information

9 or my understanding of how the EPA goes out and

10 collects data on the streams is associated with the

11 intensive base survey that we do right now, which is

12 a summertime project where they hire students to go

13 out and help sample the organisms in the streams.

The reality is that according to the

15 data that I have looked at for the eight streams

16 that I worked on, there were virtually no violations

17 that occurred during the winter, late fall or very

18 early spring months. Temperatures are just so low

19 in those particular stream segments throughout the

20 state, and dissolved oxygen is never going to be a

21 problem for most organisms. It's not going to be a

22 problem. The time to focus would be late spring,

23 probably June, when we transition from the spring

24 standard to the summer standard. A lot of

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1 violations occurred during that time with our

2 proposed standard and also during the summer. And

3 the summer months is the time when, you know, you're

4 going to really begin to see potential slumps in

5 oxygen because you have a high, high oxygen demand

6 just due to high productivity in the systems.

So the time to probably be taking a

8 hydro lab, which is what you collect continuous

9 oxygen data, would be probably during the months of

10 June through August. And that's probably when we

11 begin to see the major problems if you have a

12 problem with oxygen in a particular stream segment.

So the data sort of showed that, and

14 that would be what my recommendation would be from

15 an implementation standpoint. And, of course,

16 having them in every stream in the state. You know,

17 every one of the -- I guess, as I heard today,

18 there's like three thousand some stream segments,

19 which is not going to be feasible, but if they're

20 rotated around, and IEPA does what they do right now

21 where they focus on biotic integrity, find streams

22 that look like there's going to be a problem, and

23 then hit those hard and find out what the problem

24 is, and if DOs is one of them with a continuous

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1 monitor, great. If it's something else, great, too.

2 But that's really how they are going to have to, I

3 hope, focus on sort of implementing our

4 recommendations.

BOARD MEMBER GIRARD: Thank you. That's

all for now.

MR. HARSCH: Could I ask sort of a

follow-up question to that?

MR. RAO: I had a follow-up question, too.

10 BY MR. HARSCH:

Q If you use, in your opinion, can you use

12 the existing kind of method where you go out and

13 take a DO grab sample, for lack of a better word,

14 and look -- and use a normal diurnal fluctuation to

15 help pinpoint areas where there might be a problem?

A Yes, you can. I also, just playing with

17 the data, looked to see what the average diurnal

18 fluctuation in oxygen is. And as you might expect,

19 and actually what most of the textbooks predict, is

20 that in a system that's severely impaired, you're

21 going to get huge swings in oxygen. And in the

22 morning hours, you're going to get it very, very

23 low. And then in the daytime hours, it gets very,

24 very high. And the swings are almost more

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1 interesting to look at than the average during the

2 day. And you can get swings of 4 or 5 milligrams

3 per liter with no problem.

But even in the systems, like Lusk

5 Creek, which we consider to be fairly well

6 functioning, you still get swings during the summer

7 of oxygen and would be up to 3 milligrams per liter.

So if you go during the day, you take

9 a grab sample, and it's a certain dissolved oxygen

10 concentration, you can pretty well predict on

11 average it might be during the summertime up to 3

12 milligrams per liter less during the pre-dawn hours,

13 which will give you sort of a rule of thumb to go

14 out and send somebody with the continuous monitoring

15 logger or semi-continuous monitor. You're not

16 really going to get too many monitors that's going

17 to take continuous data. Put it in that stream

18 segment to see if you really have a problem or not.

19 And I think that's probably the best way to use time

20 and resources, that kind of thing, to pinpoint where

21 the problems are.

Q Or you could get up earlier and take the

23 samples at 4:00 o'clock in the morning.

A That's too much work, getting up in the

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1 morning. But you could do that, too.

MR. HARSCH: Thank you.

BOARD MEMBER JOHNSON: I had a follow-up

to that.

MR. RAO: Mine is a follow-up, too, to

Dr. Girard's question.

QUESTIONS BY MR. RAO:

Q You know, referring back to your testimony

9 on page 4, where you stated that the proposed

10 standard increased the frequency of violations in

11 the two severely oxygenated-impaired streams; first

12 I just wanted to, you know, get it on the record

13 which streams segments were you referring to most

14 impaired?

A Okay. Rayse Creek, and as far as I know,

16 that would be the Mazon.

Q Mazon River?

A Those are the two that are the most

19 problematic.

Q You know, you proposed two different

21 standards where you had a one-day minimum and

22 seven-day standard. So when you did that analysis

23 in terms of the frequency of violations, which

24 standard did you find was more frequently violated,

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1 I guess?

A Most typically it was -- you know, it's

3 interesting because the reality is, is that when one

4 was violated pretty regularly, the other one seemed

5 to be violated pretty regularly as well. They're

6 telling us two different things.

When the critical minima are

8 violated, it's suggesting that occasionally

9 dissolved oxygen concentration dips, and then it

10 pops back up again. If in conjunction with that,

11 you get a seven-day mean that's low as well, that's

12 suggesting that you have a chronic low oxygen

13 problem on top of it, you know, dropping below that

14 critical minimum. When that occurs, you know that

15 you have a severe -- severely impacted problem.

And so if I take a look here, Rayse

17 Creek had both problems with the violating a 3.5

18 minimum, and it did that 70 percent of the time.

19 And it's got to be during the summer months. And

20 then it also violated the 4 -- the average of 4

21 milligrams per liter as a minimum of 78 percent of

22 the time. So in this case, it was actually showing

23 more of a chronic signal than was even the violation

24 minimum. That creek has got some problems.

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And what's amazing is I looked at the

2 IBA scores for that, and they were actually fairly

3 high. So, you know, I was expecting to see this

4 severely impaired stream segment from that respect,

5 but it wasn't as low as I expected it to be, where

6 as --

HEARING OFFICER MCGILL: What is IBA?

Just stick to the record.

THE WITNESS: That's biotic integrity.

It's an index that's used based mostly on fish

data essentially to give you an estimate of the

quality of the stream in terms of its fish

assemblage. Actually, it was developed here in

Illinois, and it is continuing to be modified

to be a little bit more sensitive for each

region within the state.

And so a high IBA score indicates that

you've got a system of high integrity. Low IBA

scores suggest that there's a habitat problem,

maybe a water quality problem that's negatively

affecting the fish in there, which usually then

translates to the same thing with the

macroinvertebrates. And there's a real

problem, so in terms of shedding light on

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whether the chronic problem in the stream, in

this longer averaging period is what you think

would be more useful. Both are important

pieces of information.

The critical minimum, of course, is

telling whether you're getting a lethal,

potentially lethal effect, that organisms that

might already be stressed for other reasons are

going to have a high mortality if it drops

considerably below 3.5. Again, we picked 3.5

to be a relatively robust protective number.

If it's a seven day -- if it's chronically at

4 milligrams per liter for seven days, you

know, you need to take a look and find out what

the problem with that particular stream segment

is.

Q And is it your position in terms of you

18 did testify that Chapman recommended a 30-day --

A Yes.

Q -- average standard?

A Yes.

Q And you had mentioned that personally you

23 don't think that would add a whole lot more to what

24 you proposed. So I just wanted to see if you had

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1 analyzed the data on a 30-day basis to see if it

2 changed.

A I didn't have time to do that, but I

4 could. And the 30-day minimum is -- or 30-day

5 average is only recommended for the summer months or

6 the months when early life history stages are

7 present, which, of course, we've all talked about

8 that before. So that would be -- I guess if we

9 applied it to our standard, would be for the summer

10 through the nonspring months. So, yeah, I haven't

11 analyzed it in that fashion. I could.

Q Would it be possible for you to do that?

13 You know, to have it in the record to see how that

14 number works?

A Yeah. Generally, what we do with that

16 number is that, you know, I suspect obviously here

17 under -- I don't whether -- I'm not going to say

18 anything.

Q If it's possible, that would be helpful.

A Sure. I could do that.

MR. RAO: Sure.

BOARD MEMBER JOHNSON: Spending your

money, right.

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QUESTIONS BY BOARD MEMBER JOHNSON:

Q Mine is just kind of a big picture

3 question, that, I guess, to make clear I'm a lawyer,

4 not a biologist.

I'll yell. I've got two kids.

I just wanted to make sure I'm not

7 mischaracterizing your testimony. It seems to me

8 what you're saying is one of the goals of this

9 proposed rule making is that currently we have good

10 streams, for lack of a better word. And I guess

11 with respect to these false violations, as you call

12 them, there are currently good streams in Illinois

13 that violate -- there are now good streams in

14 Illinois that violate the current standards, but

15 that will not violate the proposed standards. And

16 there are bad streams in Illinois that now violate

17 our current standards, and that will continue to

18 violate the proposed standards. Is that a fair

19 characterization?

A That is a fair characterization. And

21 indeed the streams that there's a severe oxygen

22 problem is probably associated with habitat

23 degradation, nutrient enrichment typically probably

24 associated with land use, ground area. They're

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1 usually in agricultural areas. Whether it's the

2 Illinois standard or the proposed standard, they're

3 both going to get picked up, because there is a true

4 problem in those particular impaired streams.

With the Illinois standard, it picks

6 up streams that are as close to what our goal is for

7 an ideal stream in the state, which would be Lusk

8 Creek, that violate the Illinois standard a lot. I

9 think here I've got it Lusk Creek being violated for

10 the less than 5 milligrams per liter of 22 percent

11 of the time. So that would force the hand of IEPA

12 to, you know, basically take that segment and say,

13 you know, there's something wrong with it, when

14 according to all of our integrity measurements,

15 there's likely not a problem with the functioning of

16 that stream. I mean, it's in a nicely forested

17 watershed, you know. We're proud of that stream.

If you take a look at the, you know,

19 the listings, it's that part of the state where

20 there isn't a lot of streams that are listed, you

21 know. It's kind of what our ideal is, and yet it's

22 still violating the Illinois 5 milligram per liter

23 standard.

BOARD MEMBER JOHNSON: Thanks.

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THE WITNESS: Sure.

MR. HARSCH: Since I'm sworn in, further

response to that question, it really is one of

the goals, why IAWA has proposed this rule

change is that we want to focus the expenditure

of resources by the state on the areas where

there is in fact a real problem that needs to

be addressed, not two DMLs on segments where DO

isn't the cause. And if DO is the contributor

to the cause, use a realistic scientifically

based standard as the goal you want to achieve

when you go through and do your modeling

exercise and set your load allocations.

Currently it's our understanding that

Illinois uses 6 milligrams per liter with a

margin of safety based on the existing

standards. That just doesn't make -- we're

wasting scarce resources.

HEARING OFFICER MCGILL: Let's go off the

record for a moment.

(Whereupon there was a short

discussion off the record.)

HEARING OFFICER MCGILL: Go back on the

record. The Board may have some follow-up

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questions later, but I'd like to open it up at

this time to the audience's proposed questions.

I understand that the Agency may have some

questions posed for IAWA, and the Environmental

Law & Policy Center has some questions as well,

and others may have questions. So I think at

this point, I'd let the Agency pose its

questions. If you would just, again, identify

yourselves for the record.

MS. WILLIAMS: Sure. I'm Deborah Williams

from the Illinois EPA, and next to me is

Stephanie Diers. And we have maybe a couple

questions. I think most of them have, between

Roy and the technical staff on the Board, have

probably been addressed already. So thank you.

QUESTIONS BY MS. WILLIAMS:

Q Like Chairman Johnson, my question will

18 reveal I'm a lawyer, and not a scientist.

But I want to clarify a little bit

20 for the Board and the record; in your testimony and

21 in all of our discussions, we're kind of going

22 around this term "implementation rules,"

23 "implementation guidelines," and I'm not sure we're

24 ready to completely explain for the Board what we

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1 mean by that, but maybe we can clarify for them some

2 of the things that we don't mean at least.

Do you mean those terms differently

4 when you use those? Are they interchangeable?

A You know, I know we talked about them

6 earlier this morning, and I think I used them

7 interchangeably with implementation, those sorts of

8 things.

Q And one thing that I believe that you

10 don't mean, but I want to clarify for the record;

11 you're not talking about how the standard, once

12 adopted, is placed into permit limits for

13 discharges, correct?

A No.

Q Okay. And do you necessarily -- primarily

16 what you're talking about are guidelines for how

17 monitoring should be conducted?

A I think that's a very, very important part

19 of what our recommendations are. If you don't

20 measure oxygen in the right place, and don't do it

21 in a standardized fashion, the information you have

22 will be not particularly useful.

Q And that those recommendations do not

24 necessarily go to where the standard does or doesn't

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1 apply? They go primarily to how monitoring --

A Correct.

Q I think Mr. Rao asked you the basic

4 question I had about the relationship between the

5 7-day standard and the 30-day. I don't know if you

6 had anything you can add to that about what the

7 30-day does add to the process or doesn't add.

A What the 30-day average will do is, you

9 know, essentially with the way you took it is you'll

10 take an average on a daily basis of the DO

11 concentration, and then you take another average,

12 which is a running average across 30 days.

And so essentially what it is, it's a

14 way of integrating the dissolved oxygen

15 concentration across a month period. And if it's

16 below 5.5-milligram per liter at any time, then

17 you're in violation. You know, there's a problem,

18 or there's a perceived problem. Which Chapman

19 recommends under the National Criteria Document, it

20 doesn't provide a huge amount of justification for

21 why that is chosen.

My problem with it -- and I mentioned

23 in the first hearing -- alluded to it in my

24 testimony, and I think Whiles feels the same way, is

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1 that the 30-day is over too long of a time period to

2 integrate changes in fluctuations in oxygen

3 concentrations that occur, in that you could have a

4 period of time during the month where you have very,

5 very high dissolved oxygen concentration and very

6 low, but the average will still come out to be some

7 level, and it's just not biologically meaningful.

Q So with regard to -- the seven-day

9 standard comes also from the criteria document?

A Yeah.

Q Do you have any opinion on if that were to

12 be lower to a three- or four-day average, would that

13 make a difference?

A It would certainly be -- it would still be

15 incorporating, you know, seven days arbitrary. I

16 mean, that's the only thing I can say. My feeling

17 is whatever the time period, it has to be over

18 sufficiently a long period of time to essentially

19 capture enough daily variation in dissolved oxygen

20 concentrations to give you a feel for what the daily

21 variation is and how that might affect the aquatic

22 organisms there. Seven days sounds like a

23 reasonable number. Three days? Probably too short

24 because you're taking an average across, which

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1 doesn't really tell you much. So I guess the thing

2 is, that I'd have to talk with other folks and see

3 what they think.

Q Typically with a lot of national criteria

5 documents, when they use the 30-day standard, that

6 is for prime effects?

A Yes. That's not really the same still

8 because you're taking a running average, and

9 then -- so the way I did my analysis is you take

10 seven days, and then move one day, and take seven

11 days, and move one day, and then take seven days.

12 You're still gaining a seven-day moving average

13 through time. So in a way, it is still providing

14 you an estimate of the chronic effects. Probably

15 over a seven-day period is probably more indicative

16 of the long-term effects that are being occurring to

17 our organisms than, I guess, 30 days.

Q And I think in your -- in the proposals

19 somewhere, or maybe one of the IAWA folks'

20 testimony, too, there was some discussion about the

21 proposal being more conservative than the NCD. Is

22 that based primarily on the point five safety

23 factor?

A Yeah.

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Q That's the basis for that?

A That would be the basis for that

3 statement.

MS. WILLIAMS: I think that's all I have.

If I if could have one minute.

HEARING OFFICER MCGILL: Sure.

MS. DIERS: I am Stephanie Diers with

Illinois EPA.

QUESTIONS BY MS. DIERS:

Q I have a question on the proposal that you

11 filed.

It's my understanding that Lake

13 Michigan and wetlands have been excluded from this

14 proposal. And can you explain by what you mean by

15 the exclusion of wetlands?

A Wetlands are going to be a tough system to

17 work with, primarily because one of the

18 characteristics of wetlands is low oxygen in some

19 areas at some times. So it's going to be very

20 difficult to develop the set of dissolved oxygen

21 criteria for wetlands. There so many different

22 definitions of wetland that are out there, that it's

23 very difficult to nail that down. So Whiles and I

24 just didn't even want to touch that. So really we

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1 just left it be, because I'm not really sure what

2 the standards are that should be set up for

3 wetlands.

Q I also thought you stated earlier that if

5 we follow your implementation suggestions, aquatic

6 life is protected. So if there's any deviation from

7 your suggestions, is the aquatic life still going to

8 be protected from your implementation suggestions?

A You mean exceeding or going below the

10 3.5 milligrams per liter?

Q Just like in your -- I think it was on

12 page 39 where you list suggestions on where we

13 should monitor this, that and the other. I guess my

14 question is, if you deviate any from that, is

15 aquatic life still going to be protected?

A In terms of if, for example, we're going

17 to monitor the location of the stream, where we're

18 going to monitor?

Q Yes.

A I think you have to be really careful,

21 because, again, say, for example, you'd measure a

22 3.5 milligram per liter minimum in a riffled area of

23 a stream, rather than what we would recommend at

24 two-thirds depth of the pool, that might not be

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1 representative of the true, I guess, integrated

2 dissolved oxygen concentration, because I would

3 probably assume that it's in a 3.5, in a fast

4 flowing area, and you move to the pool, it's going

5 to be much lower. And so you're actually -- it's

6 not as protective.

So you definitely need to follow

8 those implementation guidelines to the best of your

9 capacity, or like all bets are off with our

10 recommendations.

HEARING OFFICER MCGILL: Do you have any

further questions?

MS. WILLIAMS: I have one more question

from the technical staff. They passed me a

note. So I'll ask it.

QUESTIONS BY MS. WILLIAMS:

Q I think we'd like to know if you have sort

18 of a definition of what you consider to be a lake,

19 and whether you consider the Illinois River or the

20 Mississippi to be backwater?

A Yeah. My argument is that except for some

22 of the natural glacial lakes in Illinois, most of

23 the lakes in Illinois are streams. They're

24 reservoirs. So it's real fuzzy in terms of what

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1 your definition of a lake versus a reservoir is.

Now, when you're talking about the

3 Illinois River or the Mississippi River, the pooled

4 portions is what you're talking about?

Q Backwater. The backwater lakes for those

6 particular systems? Are those lakes or are those

7 streams? Wetlands?

A I'm not a hundred percent sure. I think

9 we would have to talk with EPA and follow up with

10 some definition as to what those are. The problem

11 with those areas is that sometimes they'll tend to

12 be anoxic in the wintertime. They'll freeze over.

13 They're heavily sedimented, and they can become a

14 problem naturally in a lot of conditions. And so,

15 again, that might follow under more like a wetlands

16 characteristic, but I'm fuzzy on that one. I'm not

17 going to be much help.

MS. WILLIAMS: Thank you.

QUESTIONS BY MR. RAO:

Q I have a follow-up question to those

21 questions Ms. Williams asked about following the

22 recommendations that you made on page 39.

Do you know if those eight monitoring

24 sites that you got the data from, whether those

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1 monitoring sites follow your recommendations? Or do

2 you have any information about those eight sites?

A I have fairly good information for the

4 location of where these loggers were placed in.

5 Probably the closest to our implementation

6 recommendation in terms of placement was Lusk Creek.

7 It was placed in a pool area.

Most of these, if I understand

9 correctly as to where they were located, they're all

10 placed at a portion of the stream where at the

11 lowest flow level, they would still be submerged.

12 So they would be well below probably the 50 percent

13 line. So they're closer to two-thirds depth. The

14 problem is that some of those were placed below

15 riffled area in a faster flowing area, rather than

16 in an area where you get slow flow, making it

17 difficult to compare those qualitatively.

MR. RAO: Thank you.

HEARING OFFICER MCGILL: I just had a

follow-up, too.

QUESTIONS BY HEARING OFFICER MCGILL:

Q You may have addressed this. What would

23 the 30-day standard, what type of dissolved oxygen

24 problem for an Illinois stream would that pick up,

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1 do you think, that your proposed seven-day standards

2 might not detect?

A I can't -- I have a very hard time

4 foreseeing it. The only thing is that because the

5 30-day standard is 5.5 milligram per liter instead

6 of 4, minimum of 4, that it's going to, you know,

7 have a higher standard associated with it. And

8 that's the only thing I could see that that would

9 be, you know, useful.

But, again, unless we take a look and

11 analyze the current eight streams, and compare that

12 to what that 5.5 milligram per liter 30 day is, I

13 don't know what it's really telling us, to tell you

14 the honest truth, because I don't know how it

15 applies into the natural variation we'd expect from

16 streams.

Q I look forward to that analysis.

A I'm not even sure how I'm going to analyze

19 it yet, because I'm working on a 30-day window, but

20 I don't know what -- I'll get into that later. But

21 it's trying to figure out what the cut-off is for

22 that. It's going to make it tough what you design

23 is when you start taking that 30-day running medium,

24 since you have a cut-off between the spring months

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1 when we have the special protective period and the

2 summer months when you start taking that 30-day

3 average. It's got to be -- I guess if it starts

4 July, it would have to be the first of August when

5 you start measuring that, so. So, yeah, I can do

6 that before we meet again.

HEARING OFFICER MCGILL: I think --

MR. HARSCH: I have one follow-up question

to one of the Agency's questions.

QUESTIONS BY MR. HARSCH:

Q From a general mathematical averaging, if

12 you shorten the number of days that you average to

13 have equivalent number, that number would have to

14 increase, would it not?

A If you're saying that for an average, you

16 know, you become more sure of an average with the

17 more days that you have behind it. So it's kind of

18 a balancing act between having too many days where

19 it no longer is meaningful because you have a lot of

20 differences.

Q If you reduce the seven-day average with

22 four-day average in setting standard purposes, you

23 would normally want that number to be a higher

24 number because the variability associated with, say,

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1 four days versus seven days?

A In terms of the number of four day? Yeah,

3 I think you would. Now, I understand what you're

4 saying. Yes, I think you would need probably more

5 days to sort of get a good feel for that.

MR. HARSCH: Yes.

QUESTIONS BY MS. LIU:

Q Dr. Garvey, you mentioned earlier that the

9 seven-day average could probably just be an

10 arbitrary number. Is it possible that the National

11 Criteria Document used seven days to capture the

12 schedule of human activities where you've got a work

13 week where people do one thing, and a weekend where

14 people do another thing, and it is on during the

15 weekend and off during the weekends?

A It's just a phone call away, and I can

17 call Gary, and he can tell us what the

18 recommendations were. I suspect it was probably

19 based on -- yeah, probably, you know, we'd have this

20 defined seven-day week that we work on, but I'm not

21 sure. The 30 day, I think, had something to do with

22 that 30 days post-spawning period.

HEARING OFFICER MCGILL: Can we just go

off the record for a moment?

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(WHEREBY A SHORT BREAK WAS

TAKEN.)

HEARING OFFICER MCGILL: Let's go back on

the record.

At this point, we're going to interrupt

the questioning of IAWA's witnesses temporarily

so that Toby Frevert of the Illinois

Environmental Protection Agency can provide

some testimony.

If the court reporter would go ahead and

swear in Mr. Frevert.

(Witness sworn.)

HEARING OFFICER MCGILL: Thank you,

Mr. Frevert.

MR. FREVERT: Okay. I believe the reason

I'm here is to give a status what we're doing

now to help the Board to evaluate the proposal.

Prior to the first hearing in conjunction

with IAWA's members, we scheduled a hearing

with the United States Environmental Protection

Agency's region five standard staff. They were

given a proposal and backup documents in

advance of that meeting and probably spent two

to three hours talking about some of the

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various technical aspects of it with various

perspectives on our side and IAWA's scientific

people.

Subsequent to that meeting, I've got a

commitment from the region five status people,

that they will forward to us as soon as it's

completed, and it contains their management

review, a written summary of their evaluations

and the issues they think we ought to focus on

as an approvable and better standard.

As of Monday morning, I had a meeting with

the branch chief -- I believe is the

terminology -- is the head person in charge of

water quality standards for region five. And

she was checking in with her staff on the

status of that letter, but they have continued

to promise me they'll have a letter identifying

the issues. And I can assure everybody in this

room, the letter is not going to say what is

and what is not acceptable. It's going to say

here is our reaction to these issues, and these

are the areas you need to focus on. There are

some problems or some uncertainties we'd like

to address. So that's underway.

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This morning we hosted a meeting at the

request of IAWA for virtually anyone who had

received notice and participate in some broader

discussion of the proposal and all of the

interests surrounding it. I'm just going to

guess we had about 25 attendees. It was a

fairly well attended meeting. In addition to

IAWA and numerous of its members, three or four

representatives of environmental advocacy

groups were there; Illinois Department of

Natural Resources was there. Several of our

staff were there. And they may --

MR. HARSCH: Farm Bureau.

MR. FREVERT: That's right. Farm Bureau.

MR. HARSCH: Illinois Environmental

Regulatory Group.

MR. FREVERT: That's right. They were

there. So typically the more active

participants in environmental rule making in

Illinois, we have reached out to when they had

representatives attending that. It was a nice,

healthy discussion. There were a lot of

complexities and issues raised where there is

obviously not yet complete consensus on how to

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deal with them, but I believe there are

consensus on those important issues that we

need to focus on.

I have committed the Agency's commitment

and willingness to provide the resources and

assist that part in discussing the various

issues and kind of provide what's hopefully a

positive forum to talk about these issues.

I am going out of my way to restrain on

having any specific optimism, because I believe

it's too early for us to reach a conclusion.

And there are pluses and minuses in virtually

everyone's argument. So we'll work through

that.

I believe there is a general agreement

this morning in terms of at least a preliminary

strategy on how to proceed, scheduled to

proceed. And I don't want to, again, steal the

thunder from Wayne Albert, but I think they're

going to provide some motions on how the Board

can consider proceeding at the close of this

hearing.

To that extent, I believe we've identified

most of the interested parties that have data

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and information and expertise. So often

rendered in this proceeding to the extent there

are others will come forward, we'll certainly

make them welcome as well, and our staff and

our data are available in this process to move

forward.

That's about all I have to offer at this

point. And I'll take any questions you might

have.

HEARING OFFICER MCGILL: Thank you.

MR. HARSCH: Not a question, but on behalf

of IAWA, we'd like to thank Toby and the Agency

for listening to me today.

HEARING OFFICER MCGILL: Any questions for

Mr. Frevert? Seeing none, thank you for

everyone's flexibility in accommodating that

testimony. We wanted to avoid a scheduling

conflict.

So we can now resume with questioning for

IAWA's witnesses. At this point, we were going

to turn it over to Albert Ettinger, the counsel

for Environmental Law and Policy Center for

questions.

MR. ETTINGER: Okay. I am a lawyer, which

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means I know everything. So we don't have to

worry about me apologizing for my lack of

knowledge.

Also I will say that I think I will be

able to, although Board Member Moore admonished

us to be civil, I'll have a harder time

avoiding being bored, because I've got a lot of

technical questions here, of what does this

mean and things like that.

QUESTIONS BY MR. ETTINGER:

Q First, I'm looking through your testimony,

12 and I've got questions on that and then on the

13 report.

First of all, you mentioned again

15 there's unpublished data on tributaries on the Ohio

16 River. Are we going to see that at sometime?

A (By Mr. Garvey) Sure, yeah. I can provide

18 that at any time. I just -- basically it's

19 submitted to the Transaction American Fisheries

20 Society, and I'm waiting for the reviews to come

21 back. So, you know, I can either provide it in

22 rough form right now, or I could wait until

23 hopefully the publication is worked out.

MR. HARSCH: What is your preference?

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THE WITNESS: Yeah. What is your

preference?

Q (By Mr. Ettinger) I guess it would be

4 useful to have it now, since we're talking about

5 things now.

A Sure.

Q Although we can get comments.

A Yeah, I'm waiting. But I mean, they don't

9 have the stamp of peer review on it, which is at

10 least a good thing.

HEARING OFFICER MCGILL: I'm sorry. Are

you indicating that would be something filed

with the Board as a public comment?

THE WITNESS: Yeah. Actually, I'm not

sure. Should I just provide it to --

MR. HARSCH: Provide it to -- it's still

a draft. That's acceptable as we go forward

with our discussion.

HEARING OFFICER MCGILL: At some point, it

sounds like something we'd want to look at,

another hearing exhibit or public comment.

THE WITNESS: Okay.

MR. ETTINGER: Okay.

Q Just looking at page 3 of your testimony

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1 here, you talk about diurnal fluctuations varying

2 among the minimal dissolved oxygen patterns and

3 oxygen standards. It says expected result oxygen

4 concentration decline in all streams during summer

5 diurnal fluctuation bearing among them.

A Correct.

Q What was the range in which they varied?

A In the Lusk Creek, for example, given the

9 decline of 3.5 milligrams per liter, the

10 fluctuations probably occurred between 1 and

11 3 milligrams per liter. And the more impaired

12 stream fluctuations could occur during on a daily

13 basis as much as like 6 or 7 milligrams per liter.

14 I'd have to go back and look at the data to be sure.

Q If you have a stream with a lot of

16 nutrients in it, and you took and measured, and it

17 said 6 at 3:00 o'clock in the afternoon, you

18 wouldn't be comfortable?

A I would be concerned if -- Rayse Creek,

20 for example, was a good example of that. And so

21 that would be one where you'd definitely have to

22 measure the minimum in the morning, or you're going

23 to have a very incorrect estimate.

Q And this is just a question I had here.

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1 It says later down, that Lusk Creek, a functioning

2 stream in a forested watershed, regularly violated

3 Illinois standard of 5 milligrams per liter during

4 22 percent of days.

A Right.

Q You mean all year or during some period?

A That would be for the spring period from

8 February through June.

Q Okay.

A When we set that -- wait, wait, wait.

11 Excuse me. I'm sorry. The Illinois standard was

12 for the full year. Actually, it was over the

13 two-and-a-half year period of that study. So

14 22 percent of all days. And I could look at the

15 inside. I'm not exactly sure how many days that

16 was. I'd have to go back and look at the data, but

17 that's over -- yes.

Q Probably 80 days?

A It's more like 700 days. So 22 percent of

20 700 days or whatever it is.

Q Okay. Turning down to page four, it says

22 you might expect that nutrient enrichment is the

23 primary factor affecting dissolved oxygen dynamics.

24 Streams with greater nutrient loading should have

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1 lower oxygen.

Is it the nutrient loading, does it

3 affect the overall oxygen level or lower

4 minimums? -- I guess is my problem here.

A It will affect -- it will affect both the

6 minimum during the summer period, and it will also

7 affect the mean minimum during the summer as well.

8 That 4 milligrams per liter is obviously due to

9 production for that particular system. And since

10 we're using that minimum as our, you know, our

11 estimate, which would be taken lightly at the lowest

12 point during the day, yeah, it should be low.

Q And can it not have any effect of actually

14 increasing oxygen levels during some parts of the

15 day?

A Well, it would, but since we're using, at

17 least during summer months, the minimum on a daily

18 basis, and if we are using semi-continuous data,

19 we're likely going to include the morning hours.

20 And so, yeah, what I mean by lower oxygen, I mean it

21 from the perspective of minimum.

Q And I guess that's what's confusing me.

23 You're talking about lower or minimum?

A Lower oxygen minimum would be a clearer

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1 thing to put in that statement, you're correct.

Q Okay.

A You'd make a great copy editor for a

4 journal.

Q I don't think so.

This, I didn't understand. I think

7 this was asked, but I still don't understand it. On

8 page 4, you say on here, in fact, the proposed

9 standard increased the frequency of violations in

10 two of the severely oxygen-impaired streams and

11 identify the time period when oxygen problems

12 occurred.

A You know, you'd think I was a teacher,

14 right, but I can't explain this.

Q Well, maybe I'm just missing it. How did

16 it increase the number of violations?

A It's increased the proportion of

18 violations, all right? So basically what -- I mean,

19 if you look at the table in the report, it's

20 proportioned by violations that we look at. It's a

21 way of standardizing instead of total days, because

22 the number of days differed, depending on which

23 stream you looked at, how often the monitor worked,

24 that kind of thing.

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So essentially what this is doing, if

2 for the 5 milligram per liter standard, we're

3 looking at all year round, because it's the Illinois

4 standard is just one size fits all, one season is

5 all seasons. Essentially what you're doing is

6 you're basically looking at proportion across all

7 those days of when you went below 5 milligrams per

8 liter.

Now, when we apply the proposed

10 standard, which is divided into spring and the rest

11 of the year, the proportion of days is going to

12 depend on the number of days within that particular

13 season that we were focused on.

So what will happen is that if you

15 have a greater proportion of days in the summer that

16 went below 3.5, then that would deflate the number

17 of the proportion of violations that you have. And

18 that is exactly what happened, because if it's

19 mostly where the violations are occurring mostly in

20 the summer months, and then that's going to inflate

21 those proportion relative to the 5 milligram.

Q So it doesn't increase the total

23 violations, but it changes the proportion of

24 violations?

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A Absolutely. So it's more sensitive. I

2 mean, basically, it's more sensitive to what goes

3 on. It's a little complicated, but in a way, the

4 information content associated with proposed

5 standard is better, because you can focus in on both

6 the chronic effects and the season effects and the

7 acute minimum, too.

Q Okay. Again, on page 5, it says dissolved

9 oxygen concentrations were lowest at intermediate

10 summer temperatures, indicating that this is not the

11 seasonal maxima of streams that reduce oxygen

12 concentrations.

A Yeah.

MR. HARSCH: When he read his testimony,

he read in seasonal maxima temperature.

THE WITNESS: Temperature should be in

here. It's not the seasonal temperature

maxima.

Basically what that sentence means is the

lowest oxygen in Lusk Creek and the other

streams as well, didn't occur when you had the

highest temperatures in the stream. They

actually occurred sort of at intermediate

summer temperatures between 20 degrees C and

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about 30 degrees C.

So I think often we often expect that on

the hottest days, you'll have the lowest

oxygen, which I actually expected when I did

the analysis. But the reality is, is that on

average, the lowest oxygen occurs in sort of

the mediocre warm days.

Q (By Mr. Ettinger) Is there a table on the

9 back of your report that shows the relation to this?

A Yes, sir. That would be table four for

11 Lusk Creek in the report. It's on page 20 of the

12 report attached.

HEARING OFFICER MCGILL: Just for the

record, this is Exhibit 9.

Q (By Mr. Ettinger) Yeah, okay. Let's talk

16 about table 20, because I didn't understand this

17 very well. Is this looking at readings within the

18 day, or is this dealing with some sort of daily

19 average?

A These are readings within the day, all

21 right? So these are half-hour intervals within a

22 day across a two-year period or for however long it

23 was for Lusk Creek.

Q So most violations occurred either five or

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1 four, depending on -- well, before it was 41 or was

2 it 25? On 25, you had the most violations of 4?

A Yeah. So basically it was different below

4 4 for 41 of the however many days when it went below

5 that, that level.

Q Okay.

A Remember, this is just a subset of the

8 days that temperatures either declined below 5

9 milligrams per liter or below 4 milligrams per

10 liter. So this isn't all the day. It's not

11 proportional. It's just a total number.

Q Most of the violations occurred mostly

13 around the 26th?

A Yeah, yeah, which is what typically

15 occurs. I mean, you're going to see that in

16 northern streams in Illinois as well as southern

17 streams.

Q Well, I guess my question is, well, did

19 you measure how the temperature of the water varied

20 over the course of a day?

A If you're -- these temperatures were taken

22 at the same instantaneous point that the oxygen was

23 taken. So this would be -- you know, it would be

24 wind temperature was 25, because oxygen and

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1 temperature are taken simultaneously most of the

2 time. And if it didn't match up, I threw them out

3 of the analysis.

Q I guess my question then -- and I think I

5 understand now what you're doing. The water

6 temperature falls a little at night?

A Yeah.

Q And your minimum DO level is generally

9 going to occur at night. Wouldn't you expect the DO

10 to be at the lowest at something less than the

11 hottest part of the day?

A Potentially, but remember water has a huge

13 heat capacity, and it takes a lot of time. I could

14 look at it and see how much the temperature

15 fluctuates on a daily basis, but I don't think it

16 would be more than a degree. But, again, on the

17 record I want to make sure.

Q I guess that's the answer to my question.

19 How much of that lack of relationship between

20 temperature and DO is due to diameter temperature

21 changes in the water?

A You should work for a journal. You're

23 doing a good job.

Q I think I'm paid well enough where I'm at.

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A Join the club.

Q Okay. Where was I? On page 6, and we

3 were just in your statement. You said no

4 relationship existed between biotic integrity scores

5 and oxygen minima as estimated by frequency of

6 violations of either the current or proposed

7 standards.

What was the data that you relied on

9 for that?

A I acquired data from the various IEPA

11 offices that collect either IBA or MBI data for

12 those particular stream segments or areas that were

13 close to the stream segments that were measured.

14 And then I plotted the frequency of violations just

15 against the most recent IBA or MBI score, and it was

16 basically a giant shotgun. There wasn't any clear

17 pattern.

Q And that's --

A That's for those streams, yeah. Salt

20 Creek had the lowest by far of all the eight streams

21 in terms of integrity scores, just to let you know.

Q Do you have that shotgun somewhere

23 prepared?

A You know, I don't. I can prepare that.

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1 That came after this -- I got the data basically

2 after I had to file the testimony, so I just looked

3 at it. Or I mean, after I had to file report.

MR. RAO: Just for the follow-up. We were

also interested in looking at the data, if it's

possible for you to submit it in the record

sometime.

THE WITNESS: Sure. I'll include that

with the other data of the tributaries.

MS. LIU: Could you also supplement with

an explanation of ranges of IBA, indicating

good health? Thank you.

THE WITNESS: Yeah, I can do that

certainly.

Q (By Mr. Ettinger) Is there any

16 relationship, to your knowledge, between algae

17 blooms and pH levels in streams?

A In streams, I know in lakes and

19 ponds -- in particular, in small ponds, the

20 increases at photosynthesis will affect pH. If

21 you've got a situation where carbon dioxide is being

22 taken out of the system, that's going to alter the

23 pH. And conversely if there's -- at nighttime,

24 there's a lot of respiration and a lot of carbon

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1 dioxide at night. It's going to change the pH as

2 well. In terms of the actual overall impact, you

3 know, it's going to depend on what kind of geology

4 you have, how much lime stone and buffering capacity

5 you have in the water.

And so the answer is, I don't know,

7 in terms of what the amount of pH change is going to

8 occur in the streams. I don't think it's going to

9 be huge, but, again, I could be proven wrong on that

10 one.

Q And have you looked at the toxicity or

12 ammonia in its relationship to pH?

A In terms of -- there is a relationship

14 between pH and toxicity of ammonia.

Q What generally is that relationship?

A Generally -- oh, gosh. I used to know

17 that. Typically on an increase in pH is

18 usually -- off the top of my head, I can't remember.

Q Thanks. There's been discussion about the

20 level of dissolved oxygen typically found at the

21 benthic level of the water. What would that

22 normally be in relationship to what you would expect

23 other than higher levels?

A Can you repeat that question?

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Q I guess -- I'm sorry. What would be the

2 relationship of the DO at the benthic level of the

3 water body in relationship to higher up in the water

4 column?

A I think that's really difficult to pin

6 down from the perspective that there's so much

7 variability on a patchy nature on the bottom of in

8 terms of what's sucking up oxygen. Obviously, the

9 organisms that live in sediment are going to have a

10 strong impact on what oxygen is there.

And as I mentioned this morning, we

12 all talked, you could move just a few feet from one

13 area and the dissolved oxygen demand in the sediment

14 can, you know, change very, very, very rapidly. So

15 it's very hard to pin that down.

Q Is there any relationship that you

17 can -- that we know of between benthic levels of

18 dissolved oxygen and levels higher than that?

A In lakes, yes. In streams, probably not

20 as good.

Q What's the relationship in lakes?

A Obviously, the stratification that occurs

23 in lakes and below that stratified point, typically

24 dissolved oxygen declines exponentially. And then

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1 at the sediment water boundary, usually oxygen is

2 completely depleted, but that's just a natural

3 characteristic of natural lakes for that

4 stratification to occur, at least in this latitude,

5 in this region.

Q So in a natural lake, you could actually

7 have something like zero dissolved oxygen at the

8 very bottom of the lake?

A It's actually very typical in a lot of

10 systems. It's the microbial fauna that live there,

11 that they need oxygen. So they use it up and then

12 basically deplete it.

Q Have you looked at all the dissolved

14 oxygen in glacial lakes?

A Actually, there's very little information

16 about that available to me. So, no, I haven't

17 really taken a hard look at that.

Q I want to go now and look at your study

19 that was prepared, and just ask some questions to

20 help me understand the study.

You praised the site location of the

22 study site of dissolved oxygen as being the sort of

23 location that you would pick, and why is that?

A Because it's in a pooled area of the

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1 stream, which we recommend. It was at a depth

2 that's close to the two-thirds. So I think it was,

3 you know, obviously probably most of the time at 50

4 percent or greater the depth. And so it was just

5 generally in the kind of area that the

6 implementation guidelines we'd recommend.

Q Now, I'm just asking; what do we know

8 about the site location of the North Fork site?

9 North Fork Vermilion site. Do you know where that

10 site location was?

A In general, if I understand

12 correctly -- and obviously I have not visited that

13 site myself, it is over a gravel riffle sort of

14 area. When you take a look at the site descriptions

15 that USGS has for that particular area, it appears

16 that there is a riffle area in the vicinity of that

17 logger or that gauge that was at that point.

Q And then the Middle Fork Vermilion site

19 that you do mention, I think I read somewhere that

20 that was close to the below riffle?

A Below riffle. Again, probably, again, a

22 very low flowing area as well.

Q A lot have riffles, don't they?

A That's the thing. I mean, obviously, you

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1 get riffle and run and pool. So you're going to

2 want to pick an area that is, to the best of your

3 ability, that you can find acquiescent in terms of

4 flow as possible, where you get some organic buildup

5 where you can expect to see the lowest oxygen

6 concentration occur.

Q And then the Vermilion site location, do

8 you know anything about that?

A Yeah. I don't know that much about it.

10 Again, when I took the sheets, it looked like it was

11 in an area with a, you know, a fairly wide laminar

12 flowing area with the gravel substrate, and that's

13 the best I know about that area.

Q And the Mazon River data. That's probably

15 the most puzzling in our set. Do we know anything

16 about the site location?

A There again, looking at this site

18 description for USGS, it was near a rock and gravel

19 riffle area. So most of these sites are riffle,

20 flowing areas.

Q And Rayse Creek, you don't know anything

22 more about that site location?

A I think from my understanding of this,

24 this was a stream area that was a pooled area as

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1 much like Lusk. And like I said previously, I think

2 that Rayse and Lusk are probably kind of in terms of

3 size, in terms of their intermittent nature,

4 probably the most comparable. Also in terms of

5 where the loggers were placed seemed to be the most

6 comfortable in terms of their location.

Q So it's kind of looking at Rayse as the

8 polluted Lusk?

A Yeah. You know, the evil brother.

Q That's good. That's helpful.

A I hope it is.

Q And what about the Salt Creek site

13 location?

A Yeah. Partial riffle, heavy aquatic

15 occurred in that particular area according to USGS

16 site.

Q And then the Valley City site was not the

18 inner river, or in the side?

A It sounded like it was in a pretty big

20 portion of the river. If I understand right, I

21 think it was on a railroad pier, but I'm not sure.

22 I'd have to check.

Q Now, what's your understanding as to how

24 they develop these IBI scores and grade these areas?

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1 Do they look at segments? Or how do they come up

2 with an IBA score?

A I'm going to have to defer to some of the

4 folks in here who measure these IBA scores.

From my understanding, it's taken,

6 you know, by one of the survey programs that occur

7 in the state. They go out there.

And usually, I believe, it's -- and

9 someone needs to correct me if I'm wrong; Bob or

10 whoever is in the audience, but essentially you're

11 taking an electric sample and going over a

12 particular area in a standardized fashion, scooping

13 up all the fish that come up, and basically looking

14 to see what appears. And then using region specific

15 developed IBA scores, grading; a lot of other

16 factors go into that. But what your expectation is

17 what kind of organisms or fish in that particular

18 area.

MR. HARSCH: Again, Albert, I think Gary

Letterman from IDR or Bob Mosher is probably

better to answer that question.

Q (By Mr. Ettinger) I guess my question is,

23 could you have a stretch of water which had a very

24 good degradation of species in it, even though it

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1 had, you know, bad spots or dead zones within that

2 water? I guess that is my question to you or

3 somebody else.

A You know, my hope is that would be

5 something that's going on in the stream at large.

6 If it is not, then why are we even bothering going

7 out and doing it? But we need to have folks within

8 EPA, I guess, to depend on their techniques.

Q I'm not criticizing their technique. I'm

10 not saying that's not a good way to judge the whole

11 segment as to what its biological integrity is.

My question is, is it your

13 understanding, for instance, if you have a spot,

14 okay, within that, that segment, that had, you know,

15 very bad conditions for fish, where the segment as a

16 whole might have strong conditions?

A Yeah. Depending the locality of where you

18 put the logger, yeah, sure. I mean, you stick it in

19 some sludge, that could happen. Or it could depend

20 on where the location is.

By the way, I think it's IE pH that

22 has the more toxicity.

Q I think you're right.

MR. HARSCH: Was your question that there

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would be spots in the stream that might have

very low IBI scores, but the stream segment in

general would have high IBI scores?

MR. ETTINGER: Well, I didn't word it

quite that way. But, yeah, presumably not

every part of the stream is equally good for

fish, but I mean, that's probably true of every

stream.

Q But I was just saying, and my concern is,

10 is that you might be measuring a particular spot

11 that had particularly low DO within that segment,

12 but the fish -- correct me if I'm wrong -- can swim

13 and will not be in that spot typically?

A You know, I think it's going to depend on

15 what kind of fish species you're talking about. But

16 a little darter can't swim away from it or a sucker

17 that can. That's probably going to influence it.

18 Again, it all comes down to it's the heterogeneity,

19 and it's the quality of the stream. That there's a

20 lot of good habitat and changes from rough riffle to

21 run and pool. That's when you're going to see a

22 system basically -- according to the analysis that

23 I've done to date, it's not dissolved oxygen, per

24 se, as I have mentioned in my testimony.

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Oh, and there's also 188 species of

2 fish in the state. That's been driving me crazy,

3 too.

Q I'm glad that we got that out.

A For at least right now.

Q There's a lot of statements here on

7 temperature that are sort of confusing to me.

On page 10, you discussed temperature

9 relationships. I believe I'm correct, and I believe

10 you had been consistent with the lowest DO during

11 summer months?

A Yeah, in all the systems. And that's just

13 physics, you know. That's basically the way it

14 works.

Q Okay. But then you say here

16 temperature -- I'm sorry. The last paragraph on

17 page 10, temperature and dissolved oxygen

18 concentration were negatively related in all

19 streams. So I assume we're talking about something

20 different there?

A Right. I'm talking about -- I'm talking

22 seasonal temperature. And from the perspective as

23 it gets warmer, on average dissolved oxygen is going

24 to decline because it's summertime. That's what I

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100

1 meant by that.

Q But you didn't find any north/south

3 difference in dissolved oxygen?

A Not as clear. I mean, obviously, I was

5 expecting if you ever -- but, anyway, with Salt

6 Creek, I was expecting to have very low oxygen,

7 given what I've seen in terms of its history, given

8 why it was listed. And it was behaving more like a,

9 you know, a stream, than it should be operating or

10 functioning normally from an oxygen perspective when

11 it was obviously -- if you take a look at the number

12 of fish species that are there, it's not operating

13 very well.

Q Do you have an understanding of how sewage

15 treatment plant discharge affects the temperature of

16 the water?

A Not at all, not a bit.

HEARING OFFICER MCGILL: I'm sorry. You

don't have an idea, or it doesn't affect it a

bit?

THE WITNESS: I don't have an

understanding. I honestly -- I'd have to leave

that up to other folks who have measured that

to answer that question.

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101

Q (By Mr. Ettinger) And how does getting a

2 lot of groundwater into the stream typically affect

3 the temperature?

A It will cool it off, but, again, as we

5 mentioned in the last hearing, often groundwater is

6 deplete in oxygen. So it could be a bad thing. In

7 fact, there's some studies throughout that, though,

8 that fish are under stress because of some

9 monitoring, that are stressed because the stream

10 gets too warm, go to try to find groundwater input,

11 and sit in there, but it's the oxygenated water.

12 They're, yeah, in trouble.

Q Badly advised?

A They're badly advised, yeah.

Q So if you had a stream which had a lot of

16 groundwater flowing into it, you would expect it to

17 have a generally lower temperature and a lower DO

18 than another similar?

A Yes, at first, but, you know, it doesn't

20 take much to oxygenate water. If there's a fairly

21 hydrating and riffle area, you can hydrate that area

22 pretty quickly and bring it up close to saturation.

Q You mentioned on page 12 of your report;

24 in small, intermittently flowing Lusk Creek, the

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102

1 logger was placed in a pool with surface flow that

2 becomes disconnected from the stream.

A Right.

Q What did you mean by that?

A At least on one occasion from the USGS

6 report, the riffle area and the pool became

7 disconnected on the surface. But more than likely,

8 there was still groundwater flow between the two

9 pools. Now, when we talk about groundwater flow at

10 that level, it's just essentially there's

11 obviously -- you know, it's a gravel alluvial area,

12 and the water can just flow underneath at that

13 point. I think that occurred on one occasion

14 according to this. It wasn't a chronic occurrence.

Q Were you able to study from any of the

16 data in relationship between flow and dissolved

17 oxygen?

A No. I considered doing that. There are

19 discharge information associated with gauges in each

20 one of these areas. I think that that would be a

21 nice next step in terms of the analogy.

And if I decide to do -- if I do the

23 30-day running mean analysis, I also look at

24 discharges relationship. I think that's important.

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1 I think flows are very important factors to see the

2 dissolved oxygen in streams.

Q I will admit on page 19, table three,

4 despite knowing nearly everything, that table

5 largely mystifies me.

A That's my goal.

Q Could you tell me -- first of all, this is

8 a regression of just temperature versus dissolved

9 oxygen using all of the data, and this isn't like

10 daily averages versus --

A Right.

Q It's just all of the data?

A So when you see 37022, that's 37022 points

14 for North Fork and Bismark. And the sample size F

15 is what's called the F statistic, which is basically

16 just looking at the variance and the data set. "A"

17 is the slope of the relationship. And "B" is the

18 intercept of the relationship. And the "R" squared

19 explains -- basically tells you how much of a

20 variance. If you have a "R" squared of one, that

21 means that the relationship is perfect, that there's

22 a perfect relationship between temperature and

23 dissolved oxygen. The lower that number is from 1,

24 the less -- the least or less variation is explained

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1 by the relationship.

So the argument that we're trying to

3 make for table three is if temperature was the main

4 factor driving dissolved oxygen in these streams,

5 there should be an R squared of 1. And as you can

6 see, that varies across streams with Illinois River

7 having one of the higher values of .84.

But if you take the Mazon River, it's

9 .33, which means that there's a lot of other factors

10 in the Mazon River, influencing dissolved oxygen

11 than temperature, like the flow, like the effluent

12 of some sort or non-point source of nutrients that

13 might be coming in, you can't tell with this.

Q But in every case, the relation -- it

15 gives you a negative relationship?

A Yeah. And they're all significant, but,

17 you know, with the regression with as many data

18 points as that, usually you can get a pretty strong

19 relationship even with very little of an

20 actual -- any relationship there. But the

21 explanatory power is not driven all by temperature.

22 It's definitely other factors.

If I did a multiple regression, which

24 can include other variables, maybe those might be

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1 important there. You know, honestly, habitat

2 characteristics, that kind of thing.

Q Okay. We talked about table four already.

4 I had a question with regard to page 23 and 24,

5 Middle Fork Vermilion near Oakwood, and the

6 Vermilion River near Danville. It's kind of a

7 narrow chart here, but it looks like both streams

8 had their low pretty much at one point, and I think

9 these waters are fairly close together. Do you know

10 what happened then? Or is there some explanation

11 for that?

A You know, I suspect there's probably a

13 flow issue. What I usually do is take a look at the

14 discharge values, and that will provide us with some

15 more information to see what happened.

Q Might there have been a drought at that

17 point?

A There would have been. I know there was

19 one in 2000. I'm not sure what happened. Now,

20 there was a decline in the Vermilion River in 2002

21 in the summer, too, for several days below that

22 5 milligram level, but it's not as pronounced.

MR. ETTINGER: Can I have a few minutes to

talk to my partners here?

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106

HEARING OFFICER MCGILL: Sure. Why don't

we go off the record.

(Brief break.)

HEARING OFFICER MCGILL: Why don't we go

back on the record then. Let's go on the

record. And if you could just -- Mr. Ettinger,

if you could restate that question.

Q (By Mr. Ettinger) My question was, how

9 does -- well, I don't -- I can't remember exactly

10 what I asked before, but my question now is, how

11 does sewage treatment plants' discharge affect the

12 temperature?

MR. CALLAHAN: On average, during the

summer months, the discharge will decrease the

temperature. During the winter months, it will

increase the temperature. Our processes are

principally stabilized both by the temperature

of the ground through which the waters flowed

to get to the plants, as well as the compressed

air that we apply to keep the process. So

customarily in the winter, the effluents will

hold warmer than the ambient water and a little

cooler in the summer.

MR. HARSCH: Dennis, do you have anything

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107

to add to that?

MR. STRICHER: That would be the same

appraisal I have. It stays pretty constant

throughout the year, and it is the receiving

stream that will function in my case.

MR. HARSCH: What is your normal

temperature?

MR. STRICHER: In the range of 50

Farenheit year round.

MR. ETTINGER: Depending on how long your

discharge is compared to the flow, could it

have a pretty big effect in terms of

stabilizing the temperature?

MR. STRICHER: That's correct.

MR. ETTINGER: Let's see if I can

remember.

Q The first question I was asking -- I asked

18 was, did you make an effort at this point to

19 calculate the percentage of saturation as to any of

20 this data?

A (By Dr. Garvey) When I analyzed the means,

22 I did normalize them to 100 percent saturation. And

23 I did not find a single example, honestly. I didn't

24 do the analysis. It was just sort of my cursory,

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108

1 looking over the data. But there were really no

2 instances where the water was super saturated, most

3 likely because we weren't taking a surface reading.

4 It was low enough that you didn't have those super

5 saturated readings occurring. So I'm pretty sure we

6 didn't have super saturation on any of the data

7 sets. I'm pretty sure I could go back and look.

Q The other question that I brought up is on

9 page 4 of your testimony, you say from the top here,

10 sentence, however, in other listed streams,

11 dissolved oxygen concentrations are typically

12 greater than the 5 milligram per liter minimum.

A Yeah.

Q Which other listed streams are you

15 referring to?

A Salt, in particular, I believe I was

17 talking about. And the North Fork Vermilion were

18 the two, I think, primarily what I meant by that.

Q Okay. The Salt violated the 5 milligram

20 per liter 90 percent of the time. Still the North

21 Fork Vermilion violated 1 percent of the time, but

22 they're both listed. The North Fork is listed for

23 pathogens?

A Pathogens, yeah, of unknown origin, I

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1 believe. Whatever that means.

MR. ETTINGER: Thank you very much.

HEARING OFFICER MCGILL: Thank you. Are

there any other questions for any of the IAWA's

witnesses? We've got just a few follow-up

questions. Alisa, go ahead.

QUESTIONS BY MS. LIU:

Q Mr. Harsch, I was wondering if someone on

9 your panel could expand a little more upon how the

10 proposed DO standards or even the current DO

11 standards would play into the nutrient standards

12 that you've been talking about?

MR. HARSCH: Mr. Callahan?

MR. CALLAHAN: Well, as I have said

several times, this whole effort had its origin

with Bob Mosher and the EPA's nutrient science

advisory committee.

One of the things that is key, I think, to

the successful development of the nutrient

standards in the state is to assess what the

naturally occurring minimum dissolved oxygen

standards are.

In other words, if we end up establishing

some kind of correlation or relationship

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110

between phosphorous concentrations and

dissolved oxygen concentrations, principally

that's what we're after.

So what limit do we want to maintain in

terms of dissolved oxygen, but how does that

correspond to phosphorous levels? Very, very

unknown situation right now. There's not much

information. That's apparently why USEPA and

all of us developed the standards at the state

level, because there wasn't a whole lot they

could rely on at the federal level to give a

little bit more precise guidance than they did.

So that was the essence of it all was to

try and come up with a oxygen -- everyone

realized that our ambient waters were violating

5 minimum.

And, again, we go back to cost. You know,

the wastewater industry can distill water, if

you want, and discharge that. It's just a

matter if society wants to pay for it. And it

seemed it would be prudent not to try and come

up with standards that address more than what

we needed to ensure adequate dissolved oxygen

concentration. That is taking the -- measure

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111

the relationship between the dissolved oxygen

and nutrients, like phosphorus, that would help

you to establish that.

That's what we're trying to discover.

That's the bulk. Our work that's going on

right now is trying to establish that

relationship. But there again, the

relationship is really fairly meaningless if we

don't know what numbers are protective of the

necessary dissolved oxygen concentrations to

maintain a good healthy, aerobic community.

Q Somebody is whispering next to me.

13 Someone was wondering what CR stood for. Could you

14 explain that?

A I think that's the Council for Food and

16 Agricultural Research. That is it? It's an

17 Illinois Department of Agricultural program that

18 sponsors agricultural research.

And the agricultural community is

20 very much into the nutrient issue business

21 on -- very involved with the work that's going on

22 there currently.

DR. GARVEY: They are currently focussing

on watershed effects, the relationship between

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112

water chemistry and factors like oxygen. In

terms of the biotic component of the work that

they're doing, they're focussing on

macroinvertebrates, but not on fish. So

there's very little fish data that are being

collected relative to that.

BOARD MEMBER MOORE: Why is that?

DR. GARVEY: I was not involved in the

planning process. So that's -- I'm not

familiar with what it is. I do believe that

DNR is helping collect data on occasion with

them, but I don't think that's a core integral

part of the project, which is frustrating,

since obviously we're using fish as sort of our

end point. That would be useful information to

have associated with this massive project that

we're conducting.

Q (By Ms. Liu) Mr. Callahan, what other

19 types of nutrients, besides phosphorous, might come

20 into future --

A (By Mr. Callahan) The other principal

22 nutrient that federal guidance is requiring the

23 states to address right now is nitrogen. And that

24 principally will be present in the form of nitrate.

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Most of our wastewater treatment

2 plants now discharge nitrified effluents. The

3 ammonia in our influent is oxidized microbially

4 within our plants to nitrate. Nitrate is not viewed

5 universally as being the causative factor to fresh

6 water eutrophication as phosphorous. Principally, I

7 think the main suspicion of nitrate impacts involve

8 Gulf hypoxia. And to the best of my knowledge,

9 that's debated at this point.

But, nonetheless, there seems to be a

11 prevalence of opinion that feels that nitrate

12 concentrations contribute to that.

Nitrates don't just don't bother us

14 so much in the wastewater industry. There's a

15 process by which we can run our treatment plants

16 called denitrification where we can remove a lot of

17 nitrate. All it does is cost more money. And in

18 this case, not to operate, but principally in terms

19 of capital capacity, I would imagine that most

20 conventional plants, like Dennis and mine, would

21 probably look at losing a third of their hydraulic

22 capacity right now to denitrify quickly. So

23 nitrate, besides phosphorous, are the two key

24 elements.

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Q And nitrates are also affected by the

2 dissolved oxygen concentration in the receiving

3 stream?

A Well, not necessarily, because when we

5 release the nitrates in our plant, we've already

6 nitrified. So nitrate already exists. Our

7 treatment plants represent a very artificially high

8 rate of what actually occurs in the stream. So we

9 artificially maintain that rate of decomposition.

10 And we're effectively getting the stream end

11 products, in many instances, those end products that

12 would have produced by itself.

MS. LIU: Thank you.

QUESTIONS BY MR. ETTINGER:

Q I'm sorry. I'd just like to clarify that

16 what you do in the plant. You go from ammonia,

17 which would have taken oxygen out of the water if it

18 had reached the water, and you have to go from NH to

19 NO within your plant. And that way it's not taking

20 the oxygen out of the water when it hits the water?

A That's correct, that's correct. And that

22 ammonia, as we've -- the Board has visited several

23 years ago, and we've discussed a little bit about

24 that, has its own toxicity, which is significantly

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1 different than the toxicity that we're concerned

2 about with dissolved oxygen. I hesitate to use the

3 term "toxicity" with oxygen. With ammonia, it's

4 very definitely a toxilogical issue if that enters

5 into the life stage discrepancy, alleged

6 discrepancy, that's been brought up a couple of

7 times.

HEARING OFFICER MCGILL: Well, that's a

nice segue to the one question I had or

question that the panel addressed, the merits

of whether the rule, proposed rule, should have

some sort of a safety valve provision that

would allow, for example, the Agency to specify

for a given body of water based on

site-specific circumstances that the sensitive

months be expanded.

MR. CALLAHAN: I think Mr. Johnson asked

that at first hearing or a question.

HEARING OFFICER MCGILL: We touched on it

and revisited the hearing transcript and wanted

to discuss it again.

MR. CALLAHAN: Well, it's certainly a

possibility. We did that with the ammonia

standard. My reticence with it is probably

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even a little more advanced now than it was at

the time that we discussed it before. I think

we may be on the verge of developing a

reasonably sophisticated set of stream

classifications in Illinois, and those

classifications systems might have their own

particular parameter limits.

I would love to see DO addressed that way,

rather than on a case-by-case basis. It would

be more comfortable to the Board in the

interim. I don't know that there's any

difficulty with that. The paragraph in the

ammonia reg has caused us some trouble, but I

do think its citing regulatory concept to begin

to develop these levels of classification and

designated use that incorporate different

levels of regulated parameters.

MR. STRICHER: If I could elaborate on

that a little bit. We're looking at this being

very much a first step in developing DO

standards that can be modified and perhaps will

be modified as these streams are identified,

their uses are identified, from changing from a

one size fits all general use category to a

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variety of categories. So rather than looking

so closely at biotics, which would be a part of

it, but the whole stream may be involved as

well.

HEARING OFFICER MCGILL: Thank you. Are

there any other questions at this time for the

IAWA's witnesses? Seeing none, let's just go

off the record for a moment.

(WHEREBY A SHORT BREAK WAS

TAKEN.)

HEARING OFFICER MCGILL: Why don't we go

back on the record. At this point in time, we

are going to hear testimony from Dr. David

Thomas, the Illinois Natural History Survey.

I'd ask that Dr. Thomas come up front. I'll

just mention that Dr. Thomas is going to be

reading into the record his testimony. This

was not pre-filed testimony. Dr. Thomas has

indicated that, assuming the proceeding goes

forward, he would make himself available at a

subsequent hearing for follow-up questions, and

we'll certainly try to accommodate his

schedule, and we appreciate his making himself

available today and potentially down the road.

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Welcome. And in fact, do you want to go ahead

and state your name for the record?

MR. YONKAUSKI: Before we launch into

Dr. Thomas's testimony, my name is Stan

Yonkauski. I'm attorney from the Illinois

Department of Natural Resources. We weren't --

I wasn't actually expecting Dr. Thomas to be

testifying. So I've got a few little legal

questions that I'd like to ask before we launch

into Dave's reading of his testimony.

HEARING OFFICER MCGILL: Well, welcome.

Thank you for being here.

MR. YONKAUSKI: The department has not

entered an appearance; though we have

participated in the previous hearings and

attended and have been in conversations in the

state holders, two of the three state holder

meetings that have taken place. And we will be

certainly following the proceedings and

participating as well as we can in future

meetings, making sure that we have full

participation in those meetings.

HEARING OFFICER MCGILL: We very much

appreciate your input. And if we can go ahead

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and swear in Dr. Thomas and proceed with your

initial questions.

(Witness sworn.)

QUESTIONS BY MR. YONKAUSKI:

Q Tell us who you are and where you work

6 please.

A My name is David L. Thomas. I am the

8 chief of the Illinois Natural History Survey located

9 in Champaign.

Q Tell us what the Natural History Survey is

11 please.

A The Natural History Survey is a very old

13 research institute in the state. We're over 140

14 years old. Our primary mission is to do research on

15 various biotic resources of the State of Illinois.

Q How is it that you come to testify here at

17 this hearing?

A I received a letter from the Lieutenant

19 Governor on June 24th with a series of questions

20 related to the dissolved oxygen issue. And my

21 letter that, I guess, I'll be reading today was a

22 response to those questions.

Q Do you have a copy of the Lieutenant

24 Governor's letter by any chance?

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A Yes, I do.

Q What did he ask?

A Specifically, I was asked that the Natural

4 History Survey would, one, provide a peer review for

5 the scientific literature review submitted by the

6 Illinois Association of Wastewater Agencies as a

7 basis for the proposed dissolved oxygen standard, to

8 comment on the different water quality needs of

9 aquatic communities and different geographical

10 regions of the state, and respond to the proposals

11 characterization of two categories of fisheries,

12 i.e. warm water and cold water.

Three, comment on the minimum

14 dissolved oxygen level that fish communities can

15 tolerate without measurable detrimental effects that

16 should include discussion of sublethal impacts, such

17 as growth reproduction and feeding and the seasonal

18 timing of the proposed rule.

Four, assess the effects of the

20 proposed dissolved oxygen rules on macroinvertebrate

21 species and populations of mussels and aquatic

22 insects.

And five, if possible, spell out the

24 impacts to Illinois sport fishing and other

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1 natural-based tourism.

Q Does your response to that letter include

3 and address each of those five requests?

A Mostly. I actually did not go through

5 each one of these as a point-by-point basis. So

6 what you will see in my response with responses that

7 address a number of the points. But, for instance,

8 I don't think I discuss nature-based tourism

9 directly at all. But I did reference potential

10 impact on sport fishery.

Q Okay. Dr. Thomas --

MR. HARSCH: Mr. Yonkauski, can we have

a copy of that letter?

MR. YONKAUSKI: I don't have any copies,

but I will make sure they're presented to the

Board and distributed around.

MR. HARSCH: Thank you.

Q (By Mr. Yonkauski) Dr. Thomas, what's your

19 response to the letter then? What's your testimony?

A Dear Lieutenant Governor Quinn, I am

21 pleased to offer the following comments regarding

22 your letter of June 24, 2004 on the dissolved oxygen

23 proceedings now occurring before the Pollution

24 Control Board. These comments are based upon my

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1 review of the materials submitted to the PCB,

2 including the report by Garvey and Whiles, titled,

3 "An Assessment of National and Illinois Dissolved

4 Oxygen Water Quality Criteria." They are -- my

5 comments are also derived from an independent review

6 of the literature, which included some studies not

7 referenced in the above document, and on my

8 professional judgment. I have been involved in

9 analyzing the impacts of various water quality

10 parameters on aquatic life since the late 1960s.

The present criteria of not less than

12 6 -- and there is quotes. "Not less than 6

13 milligrams per liter during at least 16 hours of any

14 24-hour period, nor less than 5 milligrams per liter

15 at any time" end of quote, has a degree of

16 conservatism build in that should be protective of

17 all aquatic life in Illinois. I find the proposed

18 change, quote, "during the months of July through

19 February, dissolved oxygen shall not be less than a

20 one-day minimum concentration of 3.5 milligrams per

21 liter and a seven-day mean minimum of 4 milligrams

22 per liter" end of quote, as not being conservative

23 enough, and of potentially endangering some aquatic

24 life in the state. Some of the reasons I reach this

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1 conclusion are addressed below.

The Garvey and Whiles report lumps

3 Illinois fish into warm water and cold water. Many

4 biologists recognize that there are many fishes that

5 would fall into a more intermediate category of cool

6 water fish. While there is no clear definition of

7 what species could be classified as cool water fish,

8 there would be general agreement that some fish

9 communities thrive under conditions of more moderate

10 summer temperatures and in well oxygenated water.

11 Some of our finer Smallmouth bass streams would fall

12 into this category, as would some of our spring feed

13 streams and some of our wooded streams and lakes,

14 particularly in northeastern Illinois.

The State of Oregon differentiates

16 between salmon spawning streams and water bodies

17 that support cool water and warm water aquatic

18 species. Their water quality standards for the

19 Umatilla subbasin are a DO level for cool water

20 aquatic life of not less than 6.5 milligrams per

21 liter and the minimum for warm water aquatic life of

22 not less than 5.5 milligrams per liter.

The Illinois DNR has developed a

24 preliminary list of some 55 streams and rivers in

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1 the state that they would classify as cool water.

2 Again, while there is no strict definition of cool

3 water streams, there is some recognition that fish

4 communities in these streams differ (need generally

5 better water quality) from other warm water streams

6 and rivers in the state.

There is a rationale in the

8 literature for the 5 milligram per liter minimum.

9 While further studies have modified this level lower

10 for a number of species, there are other species

11 that probably would not be protected at lower

12 levels.

Dowling and Wiley, 1986, did a review

14 related to this issue on, quote, "The Effects of

15 Dissolved Oxygen Temperature and Low Stream Flow on

16 fishes: A literature review." In discussing

17 minimum oxygen standards, they cite the work of

18 Ellis, 1937, who concluded that a minimum summer

19 dissolved oxygen concentration of 5 milligrams per

20 liter was necessary to support good and mixed fish

21 faunas.

They also cited the work of Coble,

23 1982, whose work in Wisconsin indicated with that

24 measure of dissolved oxygen concentration of daytime

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1 or averaged values, the level of 5 milligrams per

2 liter could be identified as a point of departure

3 between good and poor fish populations.

Chapman, 1986, in the discussion of

5 field studies, cited the above two references, plus

6 a study by Brinley, 1944, who conducted the two-year

7 biological survey of the Ohio River basin. Brinley

8 concluded that his field results showed that a

9 concentration of dissolved oxygen of 5 milligrams

10 per liter seemed to represent a general dividing

11 line between good and bad conditions for fish.

Smale and Rabeni, 1995, in their

13 studies of Missouri headwater streams, found that DO

14 minimum values influenced species composition up to

15 approximately 4 to 5 milligrams per liter, which is

16 similar to recommended standards for oxygen minima

17 in warm water streams. And references there is

18 Welch and Lindell, 1992. They also stated in this

19 paper that dissolved oxygen requirements for

20 long-term persistence of stream fishes are typically

21 much higher than those determined in laboratory

22 survival tests.

Garvey and Whiles, 2004, discussed

24 this effect in their paper and state that the growth

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1 of a number of fish is reduced at 4 to 5 milligrams

2 per liter. They cite the work of Brake, 1972, who

3 found that growth of Largemouth bass was reduced by

4 as much as 34 percent at DO concentrations of 4 to 5

5 milligrams per liter, a level that had little effect

6 on growth in the laboratory. And it is well

7 documented in the literature that Largemouth bass

8 are more tolerant of low dissolved oxygen levels

9 than Smallmouth base.

Furimsky, 2003, found that

11 progressive reductions in water oxygen levels had a

12 much greater impact on blood oxygen transport

13 properties, acid-based status, ventilation rates and

14 cardiac variables in Smallmouth bass than in

15 Largemouth bass.

The document by Garvey and Whiles

17 recognizes that the egg and larval stages of fish

18 are more sensitive to low DO levels than juveniles

19 and adults. They suggested more stringent criteria

20 from March through June (the spawning period for

21 most fish) with lower DO levels the rest of the

22 year. However, many fish continue to spawn until

23 later in the summer, and sunfishes, and bass, in

24 particular, re-nest a number of times if early

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1 attempts to spawn fail or are delayed.

In the testimony by Sheehan, he

3 stated that, quote, "Most Illinois fish spawn in the

4 spring and summer seasons. So the months of April

5 through August are without doubt within the early

6 life history stages present," end quote, period.

Garvey and Whiles recognize that,

8 quote, "Some macroinvertebrates, such as burrowing

9 mayflies and freshwater mussels, are less tolerant

10 of prolonged exposure to hypoxic conditions than

11 most fish."

Chen, Heath and Neves, 2001, did a

13 comparison of oxygen consumption in freshwater

14 mussels during declining dissolved oxygen

15 concentrations. They found for P. cordatum, that's

16 the Ohio pigtoe, and the P. cordatum bottom is

17 underlined. That's a scientific name, which is a

18 species that's found in the southeastern Illinois.

19 And Villosa iris, again, underlined. That's a

20 scientific name, which is called the rainbow, found

21 in central, in northeastern Illinois, that the

22 former -- that DO levels above 3.5 to 4.0 milligrams

23 per liter in the latter above 6 milligrams per liter

24 to ensure that aerobic metabolism remains relatively

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1 unchanged.

Garvey and Whiles state near the end

3 of their document that DO standards in Illinois,

4 based on daily minima are likely, which this is

5 bolded, in my emphasis, too conservative. However,

6 there seems to be enough evidence in the literature

7 to indicate that the new DO standards that they

8 recommend may not be conservative enough to protect

9 some threatening and endangered species, (most of

10 which we have little data for), or coolwater fish

11 assemblages. The authors go on to state that,

12 quote, "With increased scientific information,

13 region or basin specific standards likely will more

14 realistically set criteria based upon expected

15 conditions in oxygen, other water quality

16 parameters, and habitat characteristics," end of

17 quote. It seems that given the above, it would be

18 more prudent to keep the present standards and allow

19 for exemptions on particular water bodies where it

20 can be demonstrated that lower DO minimums could be

21 protective of the aquatic species within that water

22 body. Criteria would have to be established for

23 making the case for an exemption.

Another approach could be to convene

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1 a panel of experts on the topic, including

2 biologists familiar with Illinois streams, that

3 could review the literature and available

4 information and come up with recommendations,

5 possibly by grouping water bodies with somewhat

6 similar species compositions. Certainly we'd want

7 to see more stringent criteria for those streams

8 that DNR feels would fall in the cool water stream

9 category, or which have sensitive threatening and

10 endangered species for which we would like to see

11 additional protection provided.

Finally, in terms of possible impacts

13 on sport fishes, there will be significant concern

14 in the state from sportsmen groups that Smallmouth

15 bass streams are not adversely affected by lowered

16 DO levels. And based on the literature, there

17 appears to be some chance of an adverse effect on

18 this species and fishery with the proposed lower

19 standard.

While I appreciate the fact that the

21 present DO standard is probably overly conservative

22 for some of our water bodies, it probably isn't for

23 other water bodies. If we are going to adopt one

24 standard for the whole state, then it needs to be a

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1 more conservative standard to protect some of our

2 more sensitive species. If we decide to adopt DO

3 standards by water body, then we can have different

4 standards for different water bodies.

I hope that answers some of your

6 questions. I would be glad to provide additional

7 information should you need it.

Now, I do have a list of literature.

9 I'm hoping I don't have to read all those in, but

10 just the reference I cited, I did cite as an

11 additional page.

HEARING OFFICER MCGILL: So we have those

literature records in the record, did you want

to go ahead and offer this letter as a hearing

exhibit?

MR. YONKAUSKI: Absolutely.

HEARING OFFICER MCGILL: Is there any

objection to entering this letter as a hearing

exhibit? Seeing none, I'll go ahead and enter

Dr. Thomas's letter into the record as Exhibit

13.

(Whereby, the Hearing Officer

marked Exhibit 13, and same was

admitted into evidence.)

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HEARING OFFICER MCGILL: At this point,

are there any questions that anyone has for

Dr. Thomas?

BOARD MEMBER GIRARD: I have a question.

QUESTIONS BY BOARD MEMBER GIRARD:

Q Dr. Thomas, you talked in your letter

7 about this preliminary list of 55 streams and rivers

8 in this state that could be classified as cool

9 water. Can you provide a copy of that list to the

10 Board in this rule making?

A Yeah. I'd have to -- this was developed

12 by some of the DNR fisheries folks, and I can't even

13 verify that they're all in agreement on the list

14 because I don't think it's anything we've actually

15 published or put out.

MR. YONKAUSKI: It could be argued that

it's a listing in formation, but as we've

discussed earlier this morning, that's a list

that we were going to provide to other parties

who have been involved in this. So we will

certainly for the Board's consideration.

BOARD MEMBER GIRARD: Just put "draft" on

the top. That's fine.

Q Also along the same vein, I notice one of

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1 these references on the back, Dowling and Wiley,

2 which was not referenced in Dr. Garvey's report, but

3 I can see why. It looks like an unpublished report

4 from the Natural Resources. Could you also provide

5 that in this rule making, a copy of that?

A Sure.

HEARING OFFICER MCGILL: Are there any

other questions at this time for Dr. Thomas?

MR. CALLAHAN: I might have a couple.

HEARING OFFICER MCGILL: Again, for the

court reporter, could you state your name and

title.

MR. CALLAHAN: Mike Callahan. I'm with

the IAWA.

QUESTIONS BY MR. CALLAHAN:

Q I'll go to what Dr. Girard asked, if I may

17 here.

Dr. Thomas, one of the things that

19 caught my eye here initially was that when we talk

20 about cool water species, you indicate that there is

21 no clear definition of what a cool water species is?

A That's correct.

Q And then you say that DNR has come up with

24 a list of 55 waters that probably contain cool water

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1 species. Does that seem a little self-contradictory

2 to you?

A What I meant by there's no clear

4 definition, you can't go to a single reference and

5 find the definition that people have generally

6 agreed on. Among biologists, stream biologists,

7 though, I think you do find general agreement on a

8 stream that might be considered more of a cool water

9 stream versus one that is truly a warm water stream.

10 Is there overlap between them? Absolutely. And

11 you'd probably be hard pressed, which is probably

12 why it is not a definition, to draw a very strict

13 line between cold water when it switches over to

14 cool water and cool water when it switches over to

15 warm water.

It's interesting, if you go out east

17 and you follow a trout steam, it's usually the

18 headwaters are usually the cool water and you have

19 the trout there. And as you go down and you get

20 into more cool water, and then you'll get into a

21 more warm water section.

Again, there's no strict line.

23 You'll have some overlap of species between those

24 areas, but if you take that grain -- there would be

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1 general agreement on where the cold water section

2 is, where the cool water section is and where the

3 warm water section is in the stream.

Q So that would be similar to the situation

5 that you referenced here, I presume? Is it

6 pronounced Umatilla subbasin in Oregon?

A Yeah. That was just -- that was just a

8 reference I happened to have available. They must

9 do their standards out in Oregon by basins. And so

10 for that basin, they divided that up. I assume if

11 they use cool water there, they must use it state

12 wide, but I didn't have access to the whole state

13 wide standard. I was just pointing out that that

14 has been used in other places.

Q Well, could it be similar to what you just

16 described, about the gradient issue?

A That's very possible.

Q And those both involve areas of relief

19 that we here in Illinois, we don't see?

A Well, yeah. I mean, you can have a

21 gradient because -- I mean, you can have a gradient

22 of temperatures because of a gradient in elevation,

23 but you could also have it in the very flat area

24 because you've got springs coming in, and then the

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1 water is warming as it progresses. So it doesn't

2 always have to be associated with elevation.

Q But in those two situations, in all

4 likelihood, it is?

A Yeah, partially.

Q Have you read Doctors Whiles' and Garvey's

7 discussion of cool and warm water species in their

8 report?

A Yes, I read their report.

Q Have you read their -- Dr. Garvey's

11 discussion of that under cross examination?

A I don't think I've seen the cross

13 examination material.

Q If I may ask you, sir, how long have you

15 been with the history survey?

A Well, about six and a half years as chief,

17 and then I was back at the survey for about three

18 years in the '60s as a graduate student. I worked

19 on the Kaskaskia River in Illinois.

Q And I'm curious here; I'd like to know

21 where we failed. We have made an effort for several

22 months to involve the Department of Natural

23 Resources, and presumably your agency, within in

24 these discussions as a reach-out effort to other

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1 state holder groups. How did we not get you into

2 this prior to this date?

A I wouldn't characterize it that you

4 failed. Actually, although I've taken issue with

5 some of the plans made, I think in some ways we're

6 probably closer to agreement than it may appear.

I mean, I think probably for a lot of

8 the water bodies where your waste treatment

9 facilities are on, the standard probably is too high

10 and can be modified. My only concern is to modify

11 it for the whole state, because I think there will

12 be areas where I would have some concern

13 biologically about some of the aquatic resources.

14 But if it can get in a water body by water body, I

15 think, in fact, the standard that was proposed will

16 probably be adequate for a lot of our warm water

17 systems. So I don't think we're that far apart.

I'm just having a concern that we've

19 gone from being quite conservative with our

20 present -- and I didn't disagree with that, being a

21 conservative value -- to a value that I don't feel

22 is conservative enough for some species. And

23 especially as it is applied to the whole state.

Q Well, I appreciate --

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A So anyway, that doesn't answer all of your

2 question. But I think that I'm not -- I don't -- my

3 argument isn't that you failed.

And the other part of your question,

5 why wasn't I involved earlier? I don't know. Just

6 sometimes we are and sometimes we aren't.

Q Well, Dennis here and Jim both made quite

8 an effort to reach out to most of the agencies

9 within DNR, and you come as bit of a surprise to us

10 here today when we've tried to cover the bases in

11 the past, so.

A And I might not have been involved if I

13 hadn't got a letter from the lieutenant governor,

14 so, other than I've been involved through our

15 agency.

Q So your involvement with this was at

17 Mr. Quinn's direction?

A Well, that got me specifically involved in

19 the literature review because I had a very specific

20 request for information. If you would have sent me

21 a request for information, I would have gone through

22 the same exercise and provided you probably with the

23 same information, depending on what your request

24 was.

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Q What general waters, would you give me an

2 example of two or three water bodies in the state

3 where you think our proposed standard would not

4 necessarily be protective?

A Well, actually, one of them was the

6 Vermilion North Fork of the Vermilion River that you

7 mentioned. And I know we would disagree, Dr. Garvey

8 and I probably, but I think if you had a whole group

9 of biologists, we'd all sit down and hash it out,

10 we'd probably not be that far off.

Q What particular species would you

12 typically find that would be oxygen sensitive?

A There's some darter, I think. If we were

14 down for a week around 4 parts per million, 4

15 milligrams per liter of a low level, I think what

16 would happen is it's not going to kill them, in

17 that, you know, 3.5 would unlikely kill them. The

18 problem is, we don't have good data for a number of

19 those species.

And, secondly, I think over time if

21 levels were reduced, that then I think you would

22 begin to see a change in the fish community. Some

23 of the more sensitive fish might very likely

24 disappear from that system.

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Q Am I understanding you to say that if we

2 maintained the level of four, that we would end up

3 undoubtedly with some kind of negative response from

4 the fish community?

A Yes.

Q Are you aware that our standard doesn't

7 talk about maintaining the level four?

A Yes, I know that's a seven-day minimum

9 you're talking about.

Q Minimum?

A Right. All I'm saying, I don't know what

12 the maximum is.

I mean, a lot of the literature shows

14 that between four and five -- you drop below five,

15 you start getting some physiological changes in some

16 of the fish that you're dealing with. And it

17 depends on how long that goes and where -- I don't

18 know if the minimum could only be 4, but maybe the

19 maximum is only 5 or 4.8. And that over a week, I

20 think could make a difference, and especially in

21 those seven-day periods, one after another had

22 values in that range.

So all I'm saying is, it pushes me to

24 an uncomfortable level for some of the species,

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1 particularly ones that we don't really -- you know,

2 we've got the Blue Breast darter. That's a species

3 in the middle fork of the Vermilion.

Q That's another thing --

HEARING OFFICER MCGILL: I'm sorry. If

you can just let him finish his response.

MR. CALLAHAN: I'm sorry. He gave me

another answer or question.

THE WITNESS: I'm just saying, we have

some of these species that are already stressed

in the state. So I don't know that if oxygen

levels were lower there, that this might be the

final peg to eliminate them from the water

body.

So I think if you went on a water body by

water body basis, some of those streams, you

might decide it's just not worth trying to go

to a lower standard. There's too much risk.

Others you would say, yeah, you're probably

fine.

Q I apologize for my interruption.

A That's okay.

Q As I say every now and then, I have an

24 epiphany, and I had one there.

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What is your feeling about Chapman's

2 proposition, as well as questions raised by the

3 Board here today, about the monthly average of 5.5?

4 Your concern for these species, if we have a minimum

5 of 4 and a monthly average requirement of 5.5?

A Well, based on the kind of variation that

7 Dr. Garvey has showed, having an average of 5.5

8 might assure that it's staying in the range. That

9 might be all right.

I tended to agree with Dr. Garvey,

11 though. I think 30-day averages are hard to

12 biologically really understand. So I realize I

13 didn't answer that question. I'm sort of talking

14 around in circles. But I'm not sure that I'd be

15 comfortable with that either. I think I'd agree

16 with Dr. Garvey.

Q If we have 3.5 in two-thirds of the depth

18 of the pool, how many darter species are we going to

19 impact in that pool, that DO concentration?

A Well, one thing about darter species, I

21 actually did my Master's thesis on darter, so I do

22 happen to know something about them. They do move a

23 lot, by the way. The Black Side darter, which is

24 one that I worked on, will move up to 40 miles. So

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1 even though they're small, and we think of them just

2 hopping around on the bottom, some of them will

3 actually move fairly long distances.

The other thing I have problems with,

5 and in this one DO level taken at some mid point in

6 the pool, is that there's a lot of gradients even in

7 streams, in temperature, in dissolved oxygen. And

8 fish move around a lot, and they'll move towards

9 preferred habitats. And in fact, a lot of the labs

10 that have either been under my direction or I've

11 been associated with or done gradient studies of the

12 fish, to response to temperature and oxygen and

13 other variables. And so I sort of need to know

14 something more about a stream than just what a

15 temperature is at mid point of one pool. That

16 doesn't tell me an awful lot.

I think the IBI -- and some of the

18 DNR people can correct me -- but it's taken over a

19 stretch of steam that usually includes a riffle and

20 a pool. So you're getting a little bit broader

21 sample, not just at one location, but you're getting

22 a sample over a stretch where fish could move

23 between -- I'm not sure --

Q Where I was headed with this is, you

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1 studied darter, so you're probably very much aware

2 of the fact that they have no swim bladders.

A Correct.

Q And their customary habitat are with

5 riffles, with very fast water. That's their

6 specific habitat to live in?

A There are a lot of species -- there's some

8 that live in swamps, and there's some that like one.

9 Darter, some of the Precina darters that I studied

10 will be up in the water columns. But in general,

11 you're right. They're down in the bottom. And the

12 majority of the species prefer riffles and runs.

Q The point I was trying to make is that a

14 3.5 in the pool that deep is probably going to

15 result in a dissolved oxygen in a riffle, which

16 would be the customary habitat of most of these

17 species? That would be significantly higher?

A It should be. The only thing that I

19 wondered on this standard was how do we know that

20 isn't the average over the -- I mean, a true riffle

21 run stream, I agree. But I wonder if this is one of

22 our more typical rivers, which is just sort of a

23 habitat as far as you can see upstream and

24 downstream. And so that average now is over a large

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1 area, and you don't have riffles there.

In fact, that's what's happened in

3 the Kaskaskia because we've dammed all the areas

4 that are riffles, that were riffles. So now we have

5 no riffle habitat almost.

Q Well, if we don't have riffle habitat, are

7 we going to have darters?

A Yeah, we still have darters.

Q Where?

A They're living in the pools or they're

11 going up tributaries.

Q But they're not in the area without the

13 riffles and tributaries have the riffles?

A No. There's some species.

Q Some, all right. I'll leave it to you at

16 that.

But my point was the dissolved oxygen

18 level that we're recommending is not what you'd

19 customarily expect in the area of darter habitat?

20 We would anticipate higher. That's fine. I thank

21 you for your patience, sir.

HEARING OFFICER MCGILL: Actually, I'm

sorry. The question, could you just repeat

that? You've been sworn. So I've got to let

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you make some statements during your

questioning, but you kind of trailed off there

with your last statement. I don't know if you

care to repeat that. I don't think the court

reporter got it.

MR. CALLAHAN: I said, "Thank you very

much, sir, for your patience."

HEARING OFFICER MCGILL: Okay. Well, I'm

glad we got that on the record.

BOARD MEMBER GIRARD: I have a question.

HEARING OFFICER MCGILL: Go ahead.

QUESTIONS BY BOARD MEMBER GIRARD:

Q Dr. Thomas, where are Smallmouth bass

14 distributed in the state?

A Well, I would have to get out my Fishes of

16 Illinois book. I could give you a map that has a

17 distribution. But they're in some of our eastern

18 streams that are in the more deciduous forested

19 areas, and they're throughout a lot of Northern

20 Illinois and North Central Illinois. I'm not sure

21 how common they are. I think they're in some of the

22 lakes in Southern Illinois. And I'm not sure how

23 many streams. Dr. Garvey probably knows more about

24 some of the streams in the Shawnee.

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DR. GARVEY: They're in the higher quality

flow streams with higher quality flowing

streams with, you know, nice riffle. It's a

habitat quality issue. And they have

been -- what's the name of that? That power

reservoir? Where they are found? It's a

thermal cooling lake, power thermal cooling

lake. So it's kind of the last -- you wouldn't

expect them to thrive in that, but it's

actually a pretty large fishery for bass.

BOARD MEMBER GIRARD: Where is that

reservoir located?

DR. GARVEY: Peoria. I've never actually

been there.

HEARING OFFICER MCGILL: I'm sorry. If

one person could try to respond to Dr. Girard's

question.

MR. HARSCH: Outside Peoria.

DR. GARVEY: Peoria, Central Illinois.

20 BY BOARD MEMBER GIRARD:

Q Well, it seems that in your letter, one of

22 your major concerns is the Smallmouth bass fishery

23 and preserving that. And the interaction between

24 dissolved oxygen levels and the Smallmouth bass; is

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1 that correct?

A Well, I think the Smallmouth bass

3 represents a variety of species that are probably in

4 our somewhat cleaner flowing streams, with as I

5 characterized, maybe generally having a little

6 better dissolved oxygen and little bit lower

7 temperatures. The reason I use that species is,

8 well, one, it's a sport fish and a species of

9 concern, but it's also one of the fish that we have

10 a fair amount of data for. As I said, a lot of

11 other fishes associated with this Smallmouth bass,

12 we just don't either have any information or what we

13 have, you know, is very sketchy.

So I didn't mean to overly focus on

15 Smallmouth bass, but it's a species that at least we

16 have a fair amount of data on, and we know something

17 about the type of habitats that it's found in, so.

Q But what you're saying is, if we feel

19 comfortable drafting a DO standard that protects

20 Smallmouth bass, we will protect other species that

21 are typically associated with its habitat?

A Well, I tried to focus a little more on

23 the cool water habitat, because we will, I'm sure,

24 have some cool water streams or spring feed ones

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1 that maybe don't have Smallmouth bass at all, but

2 still I think it could be argued it should have a

3 little more stringent criteria than, say, what was

4 proposed in this, in this hearing.

BOARD MEMBER GIRARD: Thank you.

HEARING OFFICER MCGILL: Any other

questions for Dr. Thomas?

MR. ETTINGER: Actually, I had a question

for Mr. Callahan, but I think I am just going

to drop it.

MR. HARSCH: You are going to be available

at a future hearing so we can respond, correct,

Mr. Yonkauski?

MR. YONKAUSKI: Absolutely.

QUESTIONS BY MR. HARSCH:

Q Dr. Thomas, did you have discussions with

17 Mr. Miller about the letter, at the lieutenant

18 governor's office?

A We have talked about the subject. Why I'm

20 hesitating is because you said about the letter.

Q You wrote the letter at the lieutenant

22 governor's request, and that was your response.

The reason I ask the question is,

24 Mr. Miller requested that IAWA make a consultant

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1 available, and Mr. Callahan and Dr. Garvey

2 participated in a meeting, telephone conference,

3 with Mr. Miller from the lieutenant governor's

4 office, and we were not apprised that this request

5 had been made or the report was forthcoming at that

6 time, nor you didn't participate in that meeting

7 either, did you?

A No.

MR. CALLAHAN: I believe he had it on July

29th, which was the day before.

MR. HARSCH: Which was the day before the

letter was prepared. I think I made my point.

HEARING OFFICER MCGILL: I see that

Mr. Mark Miller of the lieutenant governor's

office is here. If you wanted to respond to

that, I am going to need to have you -- swear

you in. Is that okay?

(Witness sworn.)

HEARING OFFICER MCGILL: Go ahead.

MR. MILLER: Mark Miller, senior policy

advisor for the lieutenant governor.

HEARING OFFICER MCGILL: If you could try

to speak up, too, please. Maybe come up front,

if that's all right. Thank you.

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MR. MILLER: In response to Mr. Harsch's

question, it was my task, and I was asked to

monitor these proceedings and to provide

information, gathering information, if you

would, on the different positions that are

being taken among these different parties and

to provide that to my boss, the lieutenant

governor.

In that gathering mode, I was not, you

know, using a prudent manner of doing

operation. I wasn't giving out information as

to what I was finding, except to the governor.

So wherein we did request this information in

order to make sure that we had enough

scientific information to know whether or not

we should weigh in or not. And I'm not saying

at this point that I actually can weigh in on

this or not. We were gathering information so

that we could ascertain what our position was

going to be. And that was my task.

I will say that, if I may --

HEARING OFFICER MCGILL: Sure.

MR. MILLER: -- that I value very much the

conversations I had with Mr. Callahan, and

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gained a very worthy perspective, one of which

I would say is that the wastewater agencies are

a valued partner that ensures that we achieve

fishable waters in our state. And I assume a

great deal of promise in continuing those

conversations.

And I understand that this is an

adversarial proceeding, more or less.

HEARING OFFICER MCGILL: Actually, it's

not. We're here to gather information in a

quasi-legislative process. It may come up a

little contentious at times, but it's not a

adversarial proceeding.

MR. MILLER: And that shows how actually

new I am to this.

The task that I had was to gather

information, and then if possible, provide that

information to the Pollution Control Board in

the proceedings. And that's what we did. I

received the official response from

Dr. Thomas -- well, actually, the final version

today. I had a draft yesterday with a typo.

And so I didn't have enough time to provide

that to Mr. Harsch and Mr. Callahan. The other

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parties received it for the first time today

because I didn't have the opportunity to do

that and provide that courtesy to them at all

so they could have a copy.

HEARING OFFICER MCGILL: And we appreciate

getting Dr. Thomas's insights. And assuming

this proceeding goes forward, I believe all the

participants will have a meaningful opportunity

to cross examine Dr. Thomas. And, again, I

appreciate the doctor's willingness to make

himself available in the future.

DR. THOMAS: Thank you.

MR. HARSCH: Again, on behalf of IAWA, we

would hope that Dr. Thomas will participate in

a going forward basis in our discussions,

because we did try to reach out, and you know,

in a telephone conversation with Mark, Mike and

I had that led to setting up that meeting in

Springfield. It would have been very helpful

had we known this, and we could have reached

out to Dr. Thomas and included him in the

discussions that did not occur regrettably. We

are where we are, to move forward.

MR. CALLAHAN: I think many of Dr.

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Thomas's concerns could probably have been

addressed. To a great extent, I believe they

have been in the discussion to date. This is

something that would not be before the Board,

but we'll be glad to meet with him and discuss

his concerns privately prior to the next

hearing.

HEARING OFFICER MCGILL: Fair enough. Any

other questions for Dr. Thomas or Mr. Miller at

this time?

Great. If you could go ahead and just

identify yourself for the record.

MR. MOSHER: Bob Mosher, Illinois EPA.

QUESTIONS BY MR. MOSHER:

Q Dr. Thomas, I'd like to know at the time

16 you wrote this letter, did you review Dr. Garvey's

17 second paper submitted for this proceeding, which is

18 entitled, "Long-term Dynamics of Temperature and

19 Oxygen in Illinois Streams"?

A (By Dr. Thomas) No. The first I saw that

21 was today.

Q Okay. We spent a lot of time talking

23 about that paper today. I think it's very

24 important, because it's kind of the real world

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1 conditions out there. Could you review that paper

2 in time for the next hearing?

A Yes, I'd be glad to.

Q You mentioned some of our finer Smallmouth

5 bass streams. Do you have a list of those streams?

A That's tough. Well, the Illinois Natural

7 History Survey maintains both collections, as well

8 as records of fish captured all over the state. So

9 that is something that I can make available, but I

10 could not sit here and rattle them off to you.

Q Can you give me the names of a couple of

12 them at least?

A Central Illinois, the Salt Fork has become

14 a pretty good stream and the Middle Fork. Jordan

15 Creek is probably the more famous one in Vermilion

16 County because of all the research that was done on

17 Smallmouth bass by Dr. Larry Moore on the Natural

18 History Survey. And so there's a lot of peer review

19 papers and literature on the Smallmouth bass that

20 come from studies on Jordan Creek.

Q And you mentioned the Middle Fork. Is

22 that the Middle Fork Vermilion River?

A Yes.

Q That's interesting, because that's one of

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1 the streams that we studied with the continuous

2 monitoring data.

A Yep.

Q Good. The Oregon DO standards, do you

5 happen to know the date those standards were

6 adopted?

A No. Actually, if I was preparing

8 testimony, which I didn't think I was -- I was

9 writing a letter -- I might not have used that,

10 because I had a single sheet that was given to me

11 from someone that works in Oregon that had that, but

12 didn't have a reference on. Otherwise I would have

13 referenced it. So I mean, it probably would be

14 worth someone tracking down with more details on it.

But my only point of that was, just

16 there is some place else that has tried to define

17 cool water fish, and that's the only point I was

18 trying to make.

Q The reason I'd like to know the date is,

20 I'd like to know if the DO standard is as old as

21 Illinois, the Illinois standard is, and if they're

22 as happy with theirs as we are ours.

A I could not answer that.

Q The citations on the second page of your

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1 letter that refer to 5 milligrams per liter as a

2 good minimum, do you know if those researchers were

3 even considering the diurnal cycle of dissolved

4 oxygen in these streams? In other words, were they

5 just measuring and commenting on the daytime

6 dissolved oxygen or not a nighttime minimum?

A Well, there are field studies, of course,

8 that were mentioned in the first full paragraph

9 there, and those are looking at the overall fish

10 communities. So that's sort of averaged over many

11 years.

Some of the laboratory studies really

13 show that you begin to get a physiological response

14 and change once you drop below 5 milligrams per

15 liter. And that you can document -- and that has

16 very little -- well, you probably get that in a

17 daily cycle, but this is something that you can

18 measure in the lab. Now, whether that physiological

19 response has any biological meaning is a whole

20 another question. But you can certainly measure

21 increased respiration rate, you can measure some of

22 the other variables that physiologists measure.

The one thing I didn't get into my

24 testimony is that once you change the physiology of

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1 the fish, once its respiration increases, it can be

2 impacted by other variables in the natural

3 environment, if there's toxins in the water. Some

4 of those may have been a synergistic effect. Or you

5 may have an increased effect because of increased

6 respiration. And there's also been studies that

7 show changes in growth if oxygen falls below

8 5-milligrams per liter.

So, sure, there's excursions below

10 five. It's pretty common in most fish. Even cold

11 water fish can tolerate short intervals of

12 below -- but you are still getting a physiological

13 response. And as duration goes up, or as you drop

14 father below that level, then you -- it depends on

15 the species, but you run a potential risk of longer

16 term changes in the fish population.

Q Maybe you didn't understand. I don't

18 think your answer was to the question I was posing.

A Okay.

Q Are these researchers saying that when

21 they cite the 5 milligram per liter as it says here

22 what is needed for a good fish population, do they

23 mean the daytime dissolved oxygen never goes below

24 five or that the stream never goes below five even

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1 at night?

A Yeah. Some of the literature wasn't -- I

3 understand your question. And I think they're

4 looking more at longer term data. And I'm not

5 exactly sure. I'd have to go back to the papers to

6 try to tease out whether they were looking at some

7 average level. I'm sure if they're doing field

8 studies, I mean everyone knows that you're going to

9 have your daily variations in dissolved oxygen. And

10 as Dr. Garvey pointed out, if you work in lakes, it

11 can be dramatics from 13 down to zero. So but in

12 streams, it's less than that.

But so I think those are recognized.

14 I think what they are trying to do is paint a

15 general picture that once levels start dropping

16 below certain levels, what does that mean? I'm not

17 sure of duration. But that what they were saying is

18 changeovers in the fish population.

MR. MOSHER: Thank you. That's all I've

got.

HEARING OFFICER MCGILL: Thank you. Any

other questions for Dr. Thomas? Or Mr. Miller?

Seeing none, is there anyone else who

wishes to testify today?

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Seeing no indication of interest, I'm just

going to quickly move on to an item that we

statutorily are required to address, the

economic impact study issue. And after that,

we'll wrap up with a few procedural items.

But since 1998, Section 27B of the

Environmental Protection Act, has required the

Board to request the Department of Commerce and

Economic Opportunity to conduct an economic

impact study on proposed rules. Before the

Board adopts the rules, the Board must make the

economic impact study or DCEO's explanation for

not conducting one available to the public at

least 20 days before public hearing. The Board

requested that DCEO conduct an economic impact

study for an IAWA rule-making proposal. DCEO's

statement in the June 22, 2004 letter said

fiscal constraints preclude it from preparing

the study.

Is there anyone who would like to testify

regarding DCEO's explanation? Seeing nobody --

BOARD MEMBER JOHNSON: Someone stood up.

HEARING OFFICER MCGILL: At this point, I

have a few procedural items to address, but I

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think at this time, I'd like to ask Mr. Harsch

and Mr. Ettinger if there are any procedural

items you wanted to raise regarding these

proceedings.

MR. HARSCH: We had discussed today's

meeting, how the Board most likely would

proceed, and how maybe we would like you to

proceed. There still is pending before the

Board a motion. It may be a little moot, now

that we've gotten through this hearing, but

we've responded to it. It's ready for Board

decision if and when the Board rules on it, and

if and when Mr. -- requests them to rule on it,

I guess.

We were thinking that it might be helpful

if we could establish a status conference for

approximately 30 days from today where we could

discuss what progress we had made as we

continue our dialogue to see what our schedules

might be in terms of where we might be reaching

agreement, as Toby alluded to earlier, and

perhaps then schedule an additional hearing.

At that point in time, if we had made progress,

we might be approaching you and suggesting to

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push that status conference back, but we would

like to fix it so you know we have some

pressure on us to talk.

So we had suggested approximately 30 days

from today for a status conference with

whomever has filed an appearance or wants to

participate in the status conference on how we

might move forward.

MR. ETTINGER: I think that's where we

are.

And I guess I also wanted to suggest to

the Board that maybe it should suspend

consideration of my motion to suspend. The

concern that it was primarily aimed at, and I'm

not going to argue the motion now, but our

basic concern was we felt this was very

important, and it required a much longer period

of time for consideration, and more discussions

would take place before the Board would go to

first notice. In some, many proceedings

there's one hearing for the petitioner and then

another hearing for people responding, and then

we go to the first notice decision. And we

felt very strongly that that was not

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appropriate in this case. I think now that

we've sort of reached a set of understandings

as to how we'll proceed in discussion now, we

don't know how they're going to come out, but

we're hoping that in 30 days, whenever this

status hearing is held, we'll have some idea at

least as to how the discussions will proceed or

not proceed.

And at that point, I could tell you

whether or not to, you know, reinstitute my

motion to suspend or whether we should just

continue the suspension of the motion to

suspend so that we can all have the discussions

that the motion was designed to develop.

HEARING OFFICER MCGILL: Okay. And so by

a status conference, you're talking about a

telephone conference?

MR. HARSCH: Yes.

HEARING OFFICER MCGILL: That I would

preside over?

MR. HARSCH: Yes.

HEARING OFFICER MCGILL: So we would need

to establish -- well, you guys are meeting on

your own all the time. So I just want to make

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sure by status conference, you're talking about

something where procedurally the Board is

involved.

MR. HARSCH: Procedurally how we might

schedule a hearing, and what would seem

appropriate from that hearing, what might take

place.

MR. ETTINGER: These other things that

we've discussed, and that's what we'll be

discussing. And all we contemplate that the

status conference will be is to discuss with

you how we're going to proceed before the

Board.

MR. HARSCH: Procedurally.

MR. ETTINGER: Yes.

HEARING OFFICER MCGILL: Okay. Can we go

off the record for a second?

(Whereupon there was a short

discussion off the record.)

HEARING OFFICER MCGILL: So we've just

been having a discussion off the record, and we

have established September 13, 10:00 a.m., as a

time and date for having a status conference.

I'm just going to address a couple items

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very quickly before we adjourn. Just a brief

word about public comments. We've received a

couple already. You're still free to file

public comments with the clerk of the Board.

If you want to be placed on the notice for

service list in this rule making, please

contact me or Sandy Wiley at our Chicago

office.

The hearing transcript from today's

proceeding should be available with the Board

by August 26th or 27th. Shortly after that,

the transcript will be available on the Board's

Web site. If anyone has any questions about

the procedural aspect of the rule making, feel

free to contact me.

Are there any other matters that need to

be addressed today? Seeing none, I would like

to thank everyone for participating today.

This hearing is adjourned.

(End of proceeding.)

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C E R T I F I C A T E

I, Ann Marie Hollo, CSR, RMR, do hereby

certify that the foregoing proceedings came

before me on August 19, 2004, held in the

Stratton Office Building, Springfield,

Illinois, and was taken in shorthand by me and

later transcribed into computer-aided

transcription under my supervision, and that

the said proceedings is a true record of the

proceedings.

IN WITNESS WHEREOF, I have hereunto

subscribed my name and affixed my seal this

18th day of August, 2004.

Ann Marie Hollo, CSR, RMR

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