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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
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3 IN THE MATTER OF:
)
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4 PROPOSED AMENDMENTS TO
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DISSOLVED OXYGEN STANDARD )
5 35 ILL. ADM. CODE 302.206 ) R04-25
) (Rulemaking - Water)
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)
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8 Proceedings held on April 25, 2006, at 10:10 a.m., at the
Illinois Pollution Control Board, 1021 North Grand Avenue
9 East, Springfield, Illinois, before Richard R. McGill,
Jr., Hearing Officer.
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Reported By: Karen Waugh, CSR, RPR
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CSR License No: 084-003688
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KEEFE REPORTING COMPANY
11 North 44th Street
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Belleville, IL 62226
(618) 277-0190
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APPEARANCES
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Board Members present:
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Chairman G. Tanner Girard
4 Board Member Andrea S. Moore
Board Member Thomas E. Johnson
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Alisa Liu, Environmental Scientist
6 Anand Rao, Environmental Scientist
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8 Board Staff Members present:
9 Erin Conley
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ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
BY: Ms. Stefanie N. Diers
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Assistant Counsel
Division of Legal Counsel
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1021 North Grand Avenue East
Springfield, Illinois 62794-9276
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On behalf of the Illinois EPA
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BY: Ms. Deborah J. Williams
Assistant Counsel
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Division of Legal Counsel
1021 North Grand Avenue East
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Springfield, Illinois 62794-9276
On behalf of the Illinois EPA
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ILLINOIS DEPARTMENT OF NATURAL RESOURCES
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BY: Mr. Stanley Yonkauski
One Natural Resources Way
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Springfield, Illinois 62702-1271
On behalf of the Illinois DNR
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GARDNER, CARTON & DOUGLAS LLP
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BY: Mr. Roy M. Harsch
191 Wacker Drive, Suite 3700
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Chicago, Illinois 60606
On behalf of IAWA and Fox Metro Water
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Reclamation District
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ENVIRONMENTAL LAW & POLICY CENTER
BY: Mr. Albert F. Ettinger
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35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
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On behalf of the Environmental Law &
Policy Center, Sierra Club and Prairie
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Rivers Network
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METROPOLITAN WATER RECLAMATION DISTRICT OF
GREATER CHICAGO
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BY: Ms. Margaret Conway
100 East Erie Street
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Chicago, Illinois 60611
On behalf of the Metropolitan Water
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Reclamation District of Greater Chicago
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INDEX
2 WITNESS
PAGE NUMBER
3 IEPA
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Toby Frevert
4 Roy Smogor
5 IDNR
38
Joel Cross
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Metropolitan Water Reclamation District
141
7 Richard Lanyon
8 Fox Metro Water Reclamation District
163
Thomas Muth
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Professor Thomas Murphy
169
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EXHIBITS
2 NUMBER
MARKED FOR I.D.
ENTERED
3 Exhibit No. 20
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Exhibit No. 21
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4 Exhibit No. 22
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Exhibit No. 23
37
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5 Exhibit No. 24
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51
Exhibit No. 25
144
144
6 Exhibit No. 26
152
152
Exhibit No. 27
172
172
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PROCEEDINGS
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(April 25, 2006; 10:10 a.m.)
3
HEARING OFFICER MCGILL: Good morning. I'd
4 like to welcome everyone to this Illinois Pollution
5 Control Board hearing in Springfield. My name is Richard
6 McGill. I am the assigned hearing officer for this
7 rulemaking proceeding, which is entitled Proposed
8 Amendments to Dissolved Oxygen Standard at 35 Illinois
9 Administrative Code 302.206. The board docket number for
10 this rulemaking is R04-25. The Board received this
11 rulemaking proposal in April 2004 from the Illinois
12 Association of Wastewater Agencies, which seeks to amend
13 the Board's rule on general use water quality standards
14 for dissolved oxygen.
15
Also present today on behalf of the Board is
16 Board Member Andrea Moore, the lead board member for this
17 rulemaking; Chairman Tanner Girard; Board Member Thomas
18 Johnson; and from the Board's technical unit, Anand Rao
19 and Alisa Liu. Would any of the board members present
20 like to make any remarks at this time?
21
BOARD MEMBER MOORE: Well, I guess I will
22 just -- since I'm the lead board member, I will address
23 everyone and say how much the Board appreciates the
24 effort on everyone's part to work together to try and
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1 solve what has become a complicated -- more complicated
2 issue than perhaps was thought at the very beginning, and
3 people have been patient and cooperative and I'm
4 confident that we will end up with something that will
5 really work well, but I applaud your efforts for
6 continuing to put forth the effort that it takes to get
7 to an agreement.
8
HEARING OFFICER MCGILL: Thank you. Today
9 we are holding the fourth hearing in this rulemaking.
10 Presently no additional hearings are scheduled, though
11 there is a high probability that there will be additional
12 hearings. This proceeding is governed by the Board's
13 procedural rules. All information that is relevant and
14 not repetitious or privileged will be admitted into the
15 record. Please note that any questions posed today by
16 the Board are intended solely to develop a clear and
17 complete record for the Board's decision.
18
The Board received prefiled testimony jointly
19 from the Illinois Environmental Protection Agency and the
20 Illinois Department of Natural Resources. The Board also
21 received prefiled testimony from the Metropolitan Water
22 Reclamation District of Greater Chicago. We will begin
23 today's hearing with remarks from counsel for IAWA before
24 we proceed with the prefiled testimony. After
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1 Mr. Harsch's remarks, we'll proceed with witnesses for
2 the Agency and DNR. They will be presenting their
3 testimony, summarizing their testimony. That will be
4 followed by questions that Mr. Ettinger -- who's here on
5 behalf of the Sierra Club and Chicago Environmental Law &
6 Policy Center. Mr. Ettinger will pose some questions,
7 I'll give IAWA as a rulemaking proponent the opportunity
8 to pose questions, and we'll open it up to anyone who may
9 have any questions for the witnesses of the Agency and
10 DNR. We will then proceed in the same manner with the
11 prefiled testimony of the District, and again, as noted
12 in my hearing officer order, because the witnesses
13 prefiled their testimony, I would ask that they simply
14 give a summary of that testimony here today.
15
After we finish with questions for those who
16 prefiled, anyone else may testify, time permitting. If
17 you would like to testify today and you did not prefile
18 your testimony, I would ask that you please add your name
19 to a sign-up sheet, which is located to my right by the
20 entrance to the hearing room. As with those witnesses
21 who prefiled, those who sign up to testify today will be
22 sworn in and may be asked questions about their
23 testimony.
24
For the court reporter transcribing today's
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1 proceeding, please speak up and do not talk over one
2 another so that we can have a nice, clear transcript for
3 the Board to review. I would also ask that each time you
4 speak if you could state your name. Certainly before
5 posing a question, signal me and state your name and your
6 title and any organization you're representing here
7 today. I'd appreciate that.
8
We plan to take a lunch break. I'm assuming
9 we're going to go into the afternoon today, so we would
10 take a lunch break at around 12:30 for one hour unless a
11 more efficient break time presents itself.
12
Are there any questions about the procedures that
13 we'll follow today? Seeing none, I would ask counsel for
14 the rulemaking proponent, IAWA, Mr. Harsch, to present
15 his opening remarks.
16
MR. HARSCH: Thank you, Mr. Hearing Officer.
17 My name is Roy Harsch and I represent the Illinois
18 Association of Wastewater Agencies, the proponent of this
19 rulemaking. IAWA greatly appreciates the amount of work
20 that IDNR and IEPA have put in getting their proposal --
21 their response to the IAWA original proposal on file and
22 the prefiled testimony. It's a lot of work. We
23 understand that. Unfortunately, we are not at a position
24 today where IAWA can technically ask meaningful questions
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1 of IEPA or DNR. In part, that is due to the fact that we
2 have been asking and seeking certain clarifying
3 information from Illinois EPA, and we appreciate the
4 amount of work that the individuals within IEPA have gone
5 to in attempting to respond to that. It's just that we
6 got that information after close of business on Friday.
7 We obviously have not had an opportunity to evaluate that
8 information, look at and formulate meaningful questions.
9
In addition, as we will explain later, we have
10 additional information or questions regarding the
11 information that we've received, and we would like to
12 accordingly ask that the Board agree to establish an
13 additional day of hearing where we after we receive our
14 information have an opportunity then to question the
15 Agency and DNR witnesses and a second day of hearing
16 following that day of hearing then to present Dr. Garvey
17 and other witnesses in response to what we've learned on
18 the record.
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So we're essentially asking that this hearing
20 either be continued or rescheduled to allow additional
21 questioning of the Agency and then a second day of
22 hearing to have Dr. Garvey and others to respond with
23 additional technical information in response to what the
24 Agency put forth. And I have discussed this with counsel
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1 for IEPA, DNR and Albert Ettinger before the hearing. So
2 we'd be happy to proceed at an appropriate point with
3 clarifying questions today to the extent we can, but we
4 frankly need the information and the opportunity to
5 review that information before we can technically be in a
6 position to meaningfully examine the Agency witnesses and
7 DNR witnesses.
8
HEARING OFFICER MCGILL: Thank you. So
9 that's a motion, really, for another two days of
10 hearings.
11
MR. HARSCH: Yes.
12
HEARING OFFICER MCGILL: Any response from
13 counsel for IEPA or DNR?
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MS. WILLIAMS: I'm Deborah Williams,
15 Illinois EPA. I guess I would just request that at this
16 time -- you know, we can all certainly agree to have
17 another hearing or as many hearings as are necessary, but
18 maybe we evaluate after the next hearing whether truly
19 there's a need for another one or whether post-hearing
20 comments can address any issues that are still remaining
21 at the end of -- can we take one hearing at a time I
22 guess is my request.
23
MR. HARSCH: That'd be fine, but our present
24 time -- present plans would be to -- in all probability
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1 we would be presenting testimony of at least Dr. Garvey,
2 if not others, in response to -- but part of the issue is
3 we don't know how big an issue we have with respect to
4 some of the stuff that's been presented today because we
5 haven't gotten the information in a format that we've
6 been able to, one, evaluate it, or two, understand what
7 we've got. So we may be able to eliminate some of the
8 issues, you're correct.
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HEARING OFFICER MCGILL: Any other
10 responses?
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MR. YONKAUSKI: Personally, I hate the --
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HEARING OFFICER MCGILL: If you could just
13 state your name for the record.
14
MR. YONKAUSKI: Stanley Yonkauski,
15 Department of Natural Resources. Last name is
16 Y-O-N-K-A-U-S-K-I. Personally, I hate the idea of
17 scheduling more hearings. This has taken up inordinate
18 amounts of resources that our department at least and
19 certainly for the EPA, I'm sure -- I don't want to speak
20 for them -- but we're not normally dedicating to these
21 Pollution Control Board regulatory proceedings, but this
22 is important and it's a significant issue and it's going
23 to I hope set the tone for what is necessary for future
24 similar issues that are coming up in the future. That
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1 said, we can't object if the parties are on -- are not
2 quite ready. We'll accede to the request for another
3 hearing, but I agree with Deborah that let's not schedule
4 two more unless they're absolutely necessary. Another
5 consideration, I'd like to know what Mr. Harsch
6 specifically is requesting for data. If we could get
7 a --
8
MR. HARSCH: I would propose that at an
9 appropriate point today we would go through and explain
10 what it is and why it is we need it, and we'll do that
11 later after we get through questioning the witnesses.
12
MR. YONKAUSKI: That would be great. Thank
13 you.
14
MR. ETTINGER: I have a practical problem,
15 and I'm just trying to --
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HEARING OFFICER MCGILL: If you could just
17 state your name for the record.
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MR. ETTINGER: Albert Ettinger. I represent
19 Sierra Club, Prairie Rivers Network and the Environmental
20 Law & Policy Center in the midwest. I just wanted to
21 kind of pose a practical problem, and maybe we'll have to
22 ask this question to Mr. Harsch and figure out where
23 other things are going. If we were only going to
24 schedule one hearing today, then there would probably be
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1 a need for prefiled testimony for any witness that
2 Mr. Harsch wanted to offer, and he may not know at this
3 point whether he wants to offer a witness or not, and so
4 I'm thinking off the top of my head that either we have
5 to have two hearings, one to just allow this sort of
6 cross examination, and then Mr. Harsch would then have to
7 decide which witnesses he wants, or else we would have to
8 probe in some detail today what information Mr. Harsch
9 needs so that he'll be able before the next hearing to
10 have his prefiled testimony, and so that's the practical
11 problem I'm looking at. If we were going to do two
12 hearings in that manner, I would hope that -- if there
13 was just going to be a questioning hearing without
14 prefiled testimony, I would hope that could be done
15 fairly quickly, like, less than a month, even, and then
16 because -- and then the next hearing would require
17 prefiled testimony, but some of us would like to finish
18 this proceeding before we retire, so I -- that's what I'm
19 envisioning.
20
MR. HARSCH: As the counsel for the
21 proponent, we would agree with you. It's been a long
22 time since August of last year, but Mr. Ettinger has
23 pointed out a very practical point. At this point in
24 time we don't know what our prefiled testimony would
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1 consist of. We're more than happy to provide prefiled
2 testimony and would have envisioned that that would have
3 been required for responsiveness essentially here, so --
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HEARING OFFICER MCGILL: Any other --
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MR. HARSCH: If we have that kind of an
6 agreement, then we know what questions to ask or not
7 today.
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MR. ETTINGER: I guess I would say we would
9 object to going forward in the basis in which we didn't
10 know what the witness that they were offering was going
11 to say, so we couldn't just go forward with a hearing
12 next time and let him decide next time whether or not he
13 wants to call the witness, because then we won't have had
14 any chance to see that testimony.
15
MR. HARSCH: Albert, that's why I asked for
16 two hearings.
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HEARING OFFICER MCGILL: Any other responses
18 to IAWA's motion? Seeing none, I think it's premature to
19 rule on the motion right now. I think it makes sense to
20 see how today unfolds and then at that point IAWA will
21 maybe have a better sense of --
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MR. HARSCH: Mr. --
23
HEARING OFFICER MCGILL: I'm sorry. Go
24 ahead.
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MR. HARSCH: With all due respect, there --
2 we can't ask -- we're saying we -- and our witness has --
3 Dr. Garvey has explained to us we're not in a position to
4 ask meaningful, probing questions of the Agency's
5 witnesses today. We can ask clarifying questions.
6 That's why I'm asking for the motion and ruling upfront
7 so we know what we're --
8
HEARING OFFICER MCGILL: I guess I -- what I
9 would do is I'm not in a position right now to say -- to
10 grant two more days of hearings. It sounds like we don't
11 know -- You mentioned continuing this hearing. Right now
12 we have no sense of when that next day of hearing might
13 be, so I'm not inclined to continue today's hearing to
14 some date uncertain. I absolutely am willing to schedule
15 more hearings. It just sounds like at this point in time
16 we don't really know whether we need one more day of
17 hearing, two more days of hearings, and I just thought we
18 can revisit your motion when we're finished today.
19
MR. HARSCH: Then it's my understanding then
20 we can ask -- we will only be asking our clarifying
21 questions today that the Agency requested us to ask.
22 Otherwise, we had no intent of even asking questions
23 today.
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HEARING OFFICER MCGILL: You can ask
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1 whatever question you like. It sounds like we would have
2 a better sense of where we're at at the end of today's
3 proceeding than right now, and I think I'd be more
4 informed.
5
MR. HARSCH: And with an understanding that
6 we will have at least one more day of hearing to ask
7 questions of the Agency witnesses?
8
MS. WILLIAMS: Can I just say one more
9 thing?
10
HEARING OFFICER MCGILL: Sure.
11
MS. WILLIAMS: I mean, I think the only
12 potential prejudice on Mr. Harsch would be if for some
13 reason the Agency would come here today and say, "Never
14 mind, that's it, we're not answering any more questions,
15 if you didn't get it out today, that's your last
16 opportunity," and we've never done that. I mean, we
17 intend that our -- you know, maybe we can't have everyone
18 there that's here today, but we'll make sure that we're
19 as able as possible to answer any questions that are
20 going to come up, whether that be in writing, at another
21 hearing, at five more hearings, so I don't think there's
22 any prejudice.
23
HEARING OFFICER MCGILL: Okay. Why don't we
24 just go off -- We have microphones that we're going to
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1 set up, so why don't we go off the record for a moment.
2
(Brief recess taken.)
3
HEARING OFFICER MCGILL: There's a pending
4 motion from IAWA to have two more days of hearing, either
5 continuing today's hearing and scheduling a second
6 hearing or scheduling two more days of hearing. One day
7 of hearing, IAWA would like to pose substantive questions
8 to the witnesses for IEPA and DNR based on additional
9 data that they are asking for from the Agencies and
10 expect to be receiving. The second day of hearing would
11 be for IAWA testimony, which would have to be prefiled.
12
What I'm going to do is grant the motion in part.
13 We will have one more day of hearing. That will be a
14 separately scheduled hearing. I'm not going to continue
15 today's hearing because we don't have any sense right now
16 of when that -- when today's hearing would be continued.
17 We don't have a date. I'm not going to at this point
18 rule on a second day of hearing. I think it makes more
19 sense to simply take that up when we get to the
20 conclusion of this day of hearing substantive questions
21 to the IEPA and DNR witnesses. We'll see where we're at
22 at that point and see what makes the most sense at that
23 point in time.
24
With that, I would like to turn things over to
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1 counsel for the Agency and DNR. I will note that counsel
2 for the two agencies have indicated that their witnesses
3 would prefer to simply read their prefiled testimony into
4 the record rather than summarize it, and that is fine.
5 That does not include some of the lengthy attachments to
6 those prefiled documents. With that, I'll turn it over
7 to the counsel for the Agency and DNR.
8
MS. DIERS: Thank you. My name is Stefanie
9 Diers and I'm assistant counsel for Illinois EPA, Bureau
10 of Water. Also assigned to work on this rulemaking is
11 Miss Deborah Williams, who is sitting beside me, who is
12 also assistant counsel with the Bureau of Water. On
13 behalf of the Agency we have three witnesses, two of
14 which have filed prefiled testimony for the hearing
15 today. They are Mr. Toby Frevert, manager of the
16 Division of Water Pollution Control, and Mr. Roy Smogor,
17 who is sitting on the other side of Miss Williams, who
18 works for the Surface Water Section of the Bureau of
19 Water.
20
HEARING OFFICER MCGILL: Let the record
21 reflect that we now have microphones and air
22 conditioning.
23
MS. DIERS: Thank you. Mr. Frevert can
24 address policy-related questions and Mr. Smogor can
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1 address questions related to a lot of the information
2 found in the technical support document and specifically
3 to questions related to the site extrapolation process
4 found in the technical support document.
5
Other Agency staff here today that will assist in
6 answering the questions is Matt Short, and Mr. Short is
7 sitting on the other side of Mr. Smogor, and Mr. Short
8 works in the Surface Water Section, and Matt can help
9 address questions related to the macroinvertebrates,
10 which is explained in the technical support document, as
11 well as if there's questions related to Illinois EPA's
12 monitoring program. And before saying any more, I would
13 like to ask Mr. Yonkauski to introduce the staff from the
14 Department of Natural Resources.
15
MR. YONKAUSKI: My name's Stan Yonkauski,
16 legal counsel for the Department of Natural Resources.
17 Today we have one person who has prefiled testimony, and
18 that's Joel Cross. He's the acting manager of the
19 Watershed Protection Section. He'll be able to talk
20 about some of the technical matters that led to the
21 tiered approach that the two agencies have submitted for
22 Board consideration. Also here today are Scott Stuewe,
23 who is the acting fisheries chief, Ann Holtrop, who is
24 watershed information specialist, and they will be able
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1 to answer questions that Joel can't answer within their
2 technical expertise.
3
MS. DIERS: As the Hearing Officer stated,
4 our plan was to have Mr. Frevert, Mr. Smogor and
5 Mr. Cross read their prefiled testimony to the record and
6 then open it up for questions with the other staff
7 members who have been introduced to assist in answering
8 the questions, serving as a panel.
9
I would like to thank the Board and all others
10 participating in this matter for their patience in this
11 process. DNR and IEPA have spent an enormous amount of
12 time since the last hearing in August of 2005 coming up
13 with a joint recommendation. EPA and IDNR are proposing
14 the establishments of two levels of numeric standards for
15 dissolved oxygen. One level is generally protective of a
16 full and diverse aquatic community and the other level
17 sets incrementally higher dissolved oxygen concentrations
18 to protect Illinois' most sensitive types of aquatic
19 life. These concepts are reflected in the proposed
20 regulatory language attached to Mr. Frevert's prefiled
21 testimony as Attachment 1.
22
In the proposed language, we are proposing a
23 definition in 35 Illinois Administrative Code 302.100 for
24 thermocline. Then in Section 302.206 of the Illinois
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1 Administrative Code we are proposing to strike the
2 current dissolved oxygen language and propose the
3 following: In paragraph A, a narrative standard for
4 waters that naturally cannot achieve consistently higher
5 levels of dissolved oxygen -- for example, wetlands and
6 sloughs -- then in paragraphs B and C we have established
7 the two levels of numeric standards for dissolved oxygen
8 with a longer period for protecting early life stages and
9 the inclusion of a 30-day chronic dissolved oxygen
10 standard. Finally, in Appendix 302.D, there is a list of
11 the stream segments for enhanced dissolved oxygen
12 protection. This list includes the basin, segment name
13 and number along with latitude and longitude and what
14 county the segment is to be found in to assist in
15 identifying the streams and also for location.
16
And with that being said, I think we're ready to
17 proceed with the prefiled testimony after everyone is
18 sworn in, starting with Mr. Frevert.
19
HEARING OFFICER MCGILL: If the court
20 reporter would swear in the witnesses collectively,
21 please.
22
(Witnesses sworn.)
23
MS. DIERS: Mr. Frevert, I'm handing you a
24 document and I'd like you to take a look at it, please.
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MR. FREVERT: Okay.
2
MS. DIERS: Do you recognize this document?
3
MR. FREVERT: Yeah.
4
MS. DIERS: And what is it?
5
MR. FREVERT: It's a copy of my prefiled
6 testimony. And I believe I will need the microphone.
7
MS. DIERS: And is this a true and accurate
8 copy of your prefiled testimony?
9
MR. FREVERT: I certainly hope so. Yes, it
10 is.
11
MS. DIERS: Would you please read your
12 prefiled testimony into the record?
13
MR. FREVERT: Will do. I'm Toby Frevert,
14 manager of the Division of Water Pollution Control for
15 the Illinois Environmental Protection Agency. I thank
16 the Board for hearing my testimony today and allowing the
17 Illinois EPA and the Department of Natural Resources
18 additional time to work on a joint recommendation.
19
Since the last hearing in August 2005, the
20 Illinois EPA and IDNR have continued to work to develop a
21 joint recommendation on modification and updates to
22 Illinois' current dissolved oxygen standard. Illinois
23 EPA and IDNR staff reviewed and analyzed general use
24 water data to determine what waters warrant a dissolved
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1 oxygen standard incrementally higher than a base level
2 deemed generally protective of most general use waters.
3 This process proved to be complex and time-consuming.
4 Today you'll hear Joel Cross and Roy Smogor present
5 additional information and a brief overview of the
6 process used to develop our recommendation. Other Agency
7 and Department personnel are available to respond to
8 questions and provide more specificity as desired.
9
Our recommendation to the Board establishes a
10 two-leveled dissolved oxygen standard. Level one, which
11 I believe some of the other witnesses might refer to as
12 level two, is a base condition or a base dissolved oxygen
13 standard patterned after the structure recommended in
14 USEPA's national criteria document and generally
15 protective of a full and diverse aquatic community.
16 Level two -- again, other people may refer to that as
17 level one, but the concept is there's a two-tier system.
18 The other level sets incrementally higher dissolved
19 oxygen levels or requirements for those systems
20 supporting species believed to associate with higher
21 ambient dissolved oxygen concentrations. Specific
22 language of our recommended dissolved oxygen standard is
23 contained in Attachment 1 of this testimony for the
24 Board's consideration.
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1
Significant components of that recommendation
2 include, number one, incorporation of a narrative
3 provision supplementing the numeric provisions of the
4 standard to ensure environmentally acceptable conditions
5 are provided throughout the full spectrum of general use
6 waters. Illinois EPA and IDNR are recommending that
7 general use waters at all locations maintain sufficient
8 dissolved oxygen concentrations to prevent offensive
9 conditions as required in Section 302.203 of the Illinois
10 Administrative Code. Quiescent and isolated sectors of
11 general use waters, including wetlands, sloughs,
12 backwaters and lakes and reservoirs below the
13 thermocline, shall be maintained at sufficient dissolved
14 oxygen concentrations to support their natural ecological
15 functions and resident aquatic communities.
16
Second point, average concentration and daily --
17 and average daily minimum concentration. The Illinois
18 EPA and IDNR recommend the inclusion of 5 milligrams per
19 liter as a daily minimum and 6 milligrams per liter as a
20 daily mean average over seven days during the months when
21 early life stages are present. For the rest of the year,
22 Illinois EPA and IDNR support a 3 and a half milligram
23 per liter as a daily minimum, 4 milligrams per liter as a
24 daily minimum averaged over seven days and 5 and a half
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1 milligrams per liter as a daily mean average over 30 days
2 for those waters not listed as needing a higher dissolved
3 oxygen concentration. The Agency and Department believe
4 these concepts recognize the importance of maintaining
5 sufficiently high oxygen -- high levels of dissolved
6 oxygen that ensure long-term support of healthy aquatic
7 life communities.
8
The third point, we've identified an enhanced
9 category within the general use classification for
10 enhanced waters. The Agency and Department have
11 identified several segments -- and it's approximately 8
12 percent. My prefiled testimony indicated 6 percent.
13 That was a typographical error. Approximately 8 percent
14 of the stream segments in the state have been identified
15 for this enhanced classification. These higher dissolved
16 oxygen standards include a daily minimum of 4 milligrams
17 per liter, which is a half a milligram per liter higher
18 than our base recommendation, a daily mean value averaged
19 over a seven-day period of 6.25 milligrams per liter,
20 which is 0.25 milligrams per liter higher than the base
21 recommendation, and a daily mean averaged over 30 days of
22 6 milligrams per liter, which is a half an increment
23 higher than the base recommendation.
24
Our recommendation also includes provisions
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1 regarding applicability and implementation
2 considerations. Much of the testimony and discussion
3 during this proceeding relate to the dynamic and variable
4 nature of oxygen concentrations in both the spatial and
5 temporal realm of any specific resource. To address this
6 natural variation in dissolved oxygen concentrations,
7 subparagraph D of our proposed regulatory language
8 includes provisions on measurement and calculation of
9 values to assess attainment of the standard. Language
10 has been included within the numeric limits of
11 subparagraphs B and C specifying that those numeric
12 values apply in the main body of a stream. In other
13 words, we're not restricting applicability to those -- of
14 those values to either pool or riffle stretches; rather,
15 it applies throughout. The obvious departure from this
16 uniform application applies to isolated areas such as
17 backwater sloughs and portions of lakes and reservoirs
18 below the thermocline where lower oxygen concentrations
19 can be expected to occur naturally.
20
Finally, I would like again to thank the Board
21 for the opportunity to submit prefiled testimony. I'd be
22 happy to answer any of the Board's questions at the
23 conclusion of the presentation of testimony from the
24 Agency and Department. One other thing. The attachment
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1 which is the language to the proposed recommendation we
2 probably should offer as an exhibit at this time.
3
HEARING OFFICER MCGILL: So you're moving to
4 have Attachment 1 to the prefiled testimony, which is the
5 proposed rule language, entered as a hearing exhibit?
6
MS. DIERS: Yes, that is correct.
7
HEARING OFFICER MCGILL: Is there any
8 objection to that motion? Seeing none, I will mark this
9 as Exhibit 20 and enter it into the record. Thank you.
10
MR. FREVERT: One other point I'd like to
11 make before I pass the microphone on to the next witness
12 is we received a letter from Illinois Association of
13 Wastewater Agencies last week identifying five or six
14 specific issues they would like us to address, and we've
15 prepared a response to that. I'm thinking this would be
16 the natural time to enter that response as an exhibit as
17 well.
18
MS. DIERS: What we were going to do is
19 offer additional exhibits, and I think logically what
20 would come next was we wanted to offer as an exhibit the
21 Appendix D that was attached to Toby's prefiled
22 testimony, the stream segments. I thought it would be
23 easier in the record if we had this as an exhibit to
24 refer to, so we'd offer that at this time.
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1
HEARING OFFICER MCGILL: Okay. So there's a
2 motion to enter as a hearing exhibit the attachment to
3 Mr. Frevert's prefiled testimony, Section 302.Appendix D,
4 stream segments for enhanced dissolved oxygen protection.
5 Is there any objection to that motion? Seeing none, I'll
6 mark that as Exhibit 21 and enter it into the record.
7
MS. DIERS: Then our next exhibit was what
8 Mr. Frevert was referencing to was -- I believe it's
9 public comment number 82. It was on the Board's Web
10 site. It was an April 17, 2006, letter from Dennis
11 Streicher. Illinois EPA provided a response to IAWA with
12 a letter. There was attachments. This was done by
13 e-mail on Friday, but now we have hard copies. I wanted
14 to offer that into the record, and then I have some
15 additional copies because other people might be
16 interested in seeing what that response was, and the
17 attachment's attached.
18
HEARING OFFICER MCGILL: So we have a motion
19 to enter as a hearing exhibit the response of -- is this
20 the response of IEPA and DNR or is it simply an IEPA
21 response?
22
MS. DIERS: This is Illinois EPA's response.
23
HEARING OFFICER MCGILL: IEPA's response to
24 an April 17 IAWA letter. That IAWA letter is public
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1 comment 82 in our record. Is there any objection to
2 entering as a hearing exhibit the Agency's response?
3 It's got a cover letter dated April 24, 2006. Seeing
4 none, I'll enter this response as Hearing Exhibit 22 and
5 enter it into the record. Why don't we go off the record
6 just for a moment.
7
(Off the record.)
8
HEARING OFFICER MCGILL: Why don't we go
9 back on the record, please. Just wanted to clarify for
10 the record Mr. Harsch, counsel for IAWA, had mentioned
11 receiving information from the Agency this past Friday.
12 Is that information the same as this -- what is now
13 Hearing Exhibit 22?
14
MS. DIERS: Yes. It was sent by e-mail.
15 The only thing that they didn't get which was included in
16 this packet is the CD that we did yesterday, which I gave
17 him this morning.
18
HEARING OFFICER MCGILL: Okay. Thank you.
19
MS. DIERS: Uh-huh.
20
HEARING OFFICER MCGILL: You may proceed.
21
MS. WILLIAMS: Okay. Mr. Smogor, I'm
22 handing you a document. Can you identify it, please?
23
MR. SMOGOR: Yes. That's my prefiled
24 testimony.
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1
MS. WILLIAMS: And it's a true and correct
2 copy of what was filed with the Board?
3
MR. SMOGOR: Yes, it is.
4
MS. WILLIAMS: Okay. Would you read it into
5 the record, please?
6
MR. SMOGOR: Good morning. My name is Roy
7 Smogor. I've been employed by the Illinois Environmental
8 Protection Agency -- parentheses, Illinois EPA, closed
9 parentheses -- for about six years. I'm a stream
10 biologist with a master of science degree in fisheries
11 and wildlife sciences from Virginia Polytechnic Institute
12 and State University. I also have a bachelor of science
13 degree in biology from University of Illinois at
14 Champaign-Urbana, which actually should read
15 Urbana-Champaign. I have several years of experience in
16 the states of Virginia and Illinois in developing ways to
17 use information about fish and other aquatic life to
18 determine the overall condition or health of streams.
19
Currently I am a public service administrator in
20 the Surface Water Section of the Bureau of Water. The
21 Surface Water Section is responsible for monitoring the
22 resource quality of Illinois streams and lakes.
23 Specifically, we collect biological, chemical and
24 physical information from waters throughout the state and
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1 then interpret and report on this information. Our
2 activities help guide the protection, the management and
3 regulation of Illinois' aquatic natural resources. My
4 prefiled testimony in this matter provides an overview of
5 the technical support document that explains the joint
6 recommendations of Illinois EPA and the Illinois
7 Department of Natural Resources -- parentheses, Illinois
8 DNR, closed parentheses -- for the general use water
9 quality standard for dissolved oxygen.
10
Since the August 2005 board hearing in this
11 matter, Illinois EPA has participated in developing a
12 final joint recommendation in response to proposed
13 changes in the dissolved oxygen water quality standard
14 made by the Illinois Association of Wastewater Agencies;
15 parentheses, IAWA, closed parentheses. Illinois EPA
16 believes the current dissolved oxygen standard for
17 Illinois general use waters is too simplistic. The
18 current standard inadequately accounts for the varied
19 dissolved oxygen requirements of aquatic life in these
20 waters. Moreover, the current standard does not account
21 for how dissolved oxygen concentrations vary across a
22 broad range of natural aquatic conditions in Illinois.
23
The revisions to the current dissolved oxygen
24 general use water quality standard being recommended
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1 today by Illinois EPA and Illinois DNR are based
2 primarily on the U.S. Environmental Protection
3 Agency's -- parentheses, USEPA, closed parentheses --
4 1986 natural criteria document for dissolved oxygen.
5 Illinois EPA and Illinois DNR used this 1986 document as
6 a foundation from which to interpret and incorporate more
7 recent information specifically applicable to the
8 dissolved oxygen needs of aquatic life in Illinois
9 waters. Although revisions to the current dissolved
10 oxygen standard proposed by IAWA in April 2004 are also
11 based on USEPA's national criteria document, Illinois
12 EPA's recommendations differ from those of IAWA in the
13 four following ways.
14
Number one, Illinois EPA recommends two levels of
15 numeric standards with an enhanced level of protection
16 for waters inhabited by organisms especially sensitive to
17 low dissolved oxygen levels. For a small subset of
18 general use waters -- about 8 percent of the total
19 general use stream miles -- Illinois EPA recommends a
20 higher level of dissolved oxygen protection than proposed
21 by IAWA. This higher level is intermediate between the
22 cold water criteria and warm water criteria recommended
23 in USEPA's national criteria document. Some Illinois
24 waters require dissolved oxygen levels higher than
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1 USEPA's warm water criteria because of the presence of a
2 meaningful amount of fish or macroinvertebrates that are
3 more sensitive to low dissolved oxygen than the
4 relatively few organisms on which USEPA's warm water
5 criteria are primarily based.
6
Number two, Illinois EPA recommends a narrative
7 dissolved oxygen standard for waters that naturally
8 cannot achieve consistently higher levels of dissolved
9 oxygen, such as wetlands, sloughs, river backwaters and
10 portions of lakes and reservoirs below the thermocline.
11
Number three, Illinois EPA recommends an annual
12 period one month longer than that proposed by IAWA for
13 the protection of sensitive life stages of fish; namely,
14 March through July rather than March through June.
15
Number four, consistent with the USEPA national
16 criteria document, Illinois EPA recommends a 30-day
17 chronic dissolved oxygen standard in the form of a daily
18 mean averaged over 30 days. This 30-day mean is not
19 included in the IAWA proposal. These recommendations are
20 reflected in the language filed with the Board as
21 Attachment 1 to the prefiled testimony of Toby Frevert.
22
I participated in several aspects of the
23 development of the technical support document and joint
24 Illinois EPA and Illinois DNR recommendations in this
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1 proceeding. Also I am Illinois EPA's primary author for
2 the joint technical support document that was prefiled
3 with the Board with this testimony. In January of 2006 I
4 talked with Edward T. Rankin about his research on
5 relations between stream fishes and dissolved oxygen in
6 Ohio. We discussed how Illinois EPA and Illinois DNR
7 were using his results to help identify Illinois fish
8 species that are especially sensitive to low dissolved
9 oxygen and thus potentially deserving of higher dissolved
10 oxygen standards. I worked with Illinois EPA and
11 Illinois DNR biologists and natural resource managers to
12 determine how to identify which streams in Illinois need
13 higher minimum dissolved oxygen concentrations than those
14 represented by the USEPA warm water criteria.
15
After the two agencies co-developed an approach,
16 Illinois DNR took the lead in identifying the Illinois
17 stream fish and mussel species that are most sensitive to
18 low dissolved oxygen. Illinois EPA led the effort to
19 determine an analogous list of most sensitive stream
20 macroinvertebrates, excluding mussels. After the two
21 agencies analyzed biological information to determine
22 which stream sites had meaningful amounts of sensitive
23 organisms, I extrapolated this site-specific information
24 to identify the stream segments that require the higher
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1 recommended level of dissolved oxygen standards. I am
2 available to answer questions about or to provide
3 examples of this extrapolation process.
4
Illinois EPA and Illinois DNR collaborated
5 extensively to develop the technical scientific basis and
6 to perform the analyses that culminated in the joint
7 recommended revisions to the dissolved oxygen standard.
8 The experience and expertise of several Illinois natural
9 resource managers and biologists were invaluable to this
10 process. In addition to Illinois DNR colleagues, the
11 following Illinois EPA staff provided valuable technical
12 input: Matt Short, Mark Joseph, Howard Essig, Gregg
13 Good, Bob Mosher and Toby Frevert. Matt Short is also
14 available to answer questions about how the Illinois EPA
15 macroinvertebrate information was used or about Illinois
16 EPA's stream monitoring program in general. In addition
17 to relying on Illinois-based expertise, the technical
18 support document cites several published scientific books
19 and papers. Copies of the relevant portions of these
20 works can be provided as necessary.
21
Illinois EPA believes that these recommendations
22 to the Board are scientifically sound and defensible in
23 light of the currently available information on the
24 dissolved oxygen needs of aquatic life in Illinois.
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1 Inevitably, in the future, additional information will
2 become available that will allow Illinois EPA to evaluate
3 and possibly improve these current recommendations to the
4 Board.
5
Finally, I would like to thank the Board for the
6 opportunity to provide this prefiled testimony and the
7 accompanying technical support document. Illinois EPA
8 hopes this document sheds some light on the varied
9 dissolved oxygen needs of Illinois aquatic life and helps
10 the Board in its determination in this difficult
11 proceeding. I will be happy to answer questions from the
12 Board at the conclusion of the presentation of testimony
13 from the Agency and the Department. Thank you.
14
MS. WILLIAMS: Roy, I'm showing you a
15 document that I've marked as Exhibit 23 for
16 identification. Can you identify that for me?
17
MR. SMOGOR: Yes. This is the technical
18 document that I referred to in my prefiled testimony.
19
MS. WILLIAMS: At this time I'd like to move
20 that the document titled "Recommended Revisions to the
21 Illinois General Use Water Quality Standard for Dissolved
22 Oxygen," March 31, 2006, be entered into the record.
23
HEARING OFFICER MCGILL: Is there any
24 objection to entering the technical support document as a
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1 hearing exhibit? Seeing none, that will be Exhibit 23,
2 and that's entered into the record. Thank you. Please
3 proceed.
4
MR. YONKAUSKI: Mr. Cross, did you cause to
5 be prepared and prefiled some testimony in this
6 proceeding?
7
MR. CROSS: Yes, I did.
8
MR. YONKAUSKI: Are there any additions,
9 corrections, deletions that you would expect to be made
10 or want to be made to this testimony?
11
MR. CROSS: No, not at this time.
12
MR. YONKAUSKI: Do you really want to read
13 it into the record at this time?
14
MR. CROSS: Yes, I do.
15
MR. YONKAUSKI: Please do so.
16
MR. CROSS: My name Joel Cross, and I have
17 been employed by the Illinois Department of Natural
18 Resources for seven and one half years. I am currently
19 the acting manager of the Watershed Protection Section
20 within the Office of Resource Conservation. The
21 Watershed Protection Section has the responsibility of
22 coordinating the implementation of the Illinois Wildlife
23 Action Plan, state-wide watershed-based scientific
24 investigations and Geographical Information Systems for
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1 the Office of Resource Conservation. I was formerly
2 employed by the Illinois Environmental Protection Agency
3 for nineteen years. During my last nine years at the
4 Illinois EPA I was the manager of the Surface Water
5 Section and the Planning Section in the Division of Water
6 Pollution Control. My duties included daily
7 administration of several water resource programs,
8 including surface water monitoring and assessment,
9 watershed management initiatives, federal non-point
10 source programs, federal and state clean lakes programs,
11 total maximum daily load -- or TMDL -- development,
12 Geographical Information Systems and the State's water
13 quality standards programs. I hold a bachelor's degree
14 in zoology from Southern Illinois University at
15 Carbondale, Illinois.
16
My testimony in this matter will include a
17 general overview of the Illinois DNR's role, contribution
18 and background history in developing the Illinois DNR and
19 Illinois EPA joint recommendations for dissolved oxygen
20 water quality standards. A jointly written technical
21 support document supplements the testimony provided by
22 both Illinois DNR and Illinois EPA and provides detailed
23 information regarding the two agencies' recommendations.
24 I will refer to the technical support document throughout
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1 my testimony.
2
Since the August 25, 2005, hearing, the Illinois
3 DNR and Illinois EPA jointly developed a coordinated
4 position that defines two levels of numeric standards for
5 dissolved oxygen. A fundamental aspect of this position
6 is that dissolved oxygen profiles naturally vary within
7 general use waters throughout Illinois; therefore, a
8 uniform standard is not appropriate given the available
9 science today. Illinois DNR and Illinois EPA propose the
10 establishment of two levels of numeric standards for
11 dissolved oxygen for the Illinois Pollution Control
12 Board's consideration. One level is generally protective
13 of a full and diverse aquatic community, identified as
14 level two in the technical support document, and the
15 other level sets incrementally higher dissolved oxygen
16 concentrations to protect Illinois' most sensitive types
17 of aquatic life, identified as level one in the technical
18 support document. The Illinois DNR became involved in
19 this proceeding because state law provides that Illinois
20 owns all aquatic life within our state boundaries and the
21 Illinois DNR is specifically responsible for regulating
22 and managing these natural resources.
23
Illinois DNR and Illinois EPA established a
24 process for identifying a subset of waters that warrant
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1 an incrementally higher dissolved oxygen standard. A
2 general description of that process follows. Our initial
3 effort identified fish, macroinvertebrates and mussels
4 that are sensitive to dissolved oxygen. Next, Illinois
5 DNR and Illinois EPA investigated fish and
6 macroinvertebrate communities to determine four
7 biological measures: Number of sensitive fish species,
8 proportion of individual fish that are sensitive, number
9 of sensitive macroinvertebrate taxa and the proportion of
10 individual macroinvertebrates that are sensitive.
11 Because the available mussel data did not comprise
12 community assessments, number of sensitive species and
13 proportion of sensitive individuals could not be
14 calculated. The use of mussel data will be described
15 later in my testimony.
16
The third step in our process was to identify a
17 threshold value for each of the four biological measures
18 listed previously. Illinois DNR and Illinois EPA
19 selected a threshold value that represents a typical
20 amount known from healthy streams. Threshold values for
21 each of the biological measures were determined by
22 calculating the median value from sampling sites that
23 were identified as attaining Clean Water Act goals for
24 aquatic life, referred to as full support. The
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1 calculation of the median was limited to full support
2 waters in an attempt to limit the influence of
3 environmental stresses, including habitat and chemicals.
4
The fourth step of the joint process was to
5 identify sites that had a meaningful amount of dissolved
6 oxygen sensitive organisms. For each site, values for
7 each of the four biological measures were compared to
8 establish threshold values. Sites were selected as
9 having a meaningful amount of sensitive organisms if at
10 least two of the four biological measures considered
11 equaled or exceeded the established threshold value.
12
We had sampling results from 1,110 locations
13 available for our analysis and found that 374 of the
14 total sampling sites were identified as candidates for
15 enhanced dissolved oxygen protection. Detailed
16 information regarding the methods, procedures, rationale
17 and supporting scientific literature used in the
18 four-step process is provided in the technical support
19 document on pages 33 through 37. Having identified these
20 374 sampling sites in need of enhanced dissolved oxygen
21 protection, extrapolation of these sites to stream
22 segments was conducted. Detailed information regarding
23 the methods, procedures and rationale for the
24 extrapolation to stream segments is provided in the
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1 technical support document on pages 38 through 44.
2
As mentioned previously, the number of sensitive
3 species and proportion of sensitive individuals cannot be
4 calculated for mussels because of limitations in sampling
5 methods. However, the locations of two sensitive mussel
6 species were overlain on the stream segments that were
7 identified as needing an incrementally higher dissolved
8 oxygen standard based on fish and macroinvertebrate
9 analysis. In essence, the mussel data verified the
10 effort to identify stream segments needing protection
11 based on the fish and macroinvertebrate data. Additional
12 stream segments were selected for enhanced protection for
13 dissolved oxygen based on the presence of these two
14 dissolved oxygen sensitive mussels. The list of stream
15 segments and the applicable dissolved oxygen standards
16 recommended is described in the draft regulations
17 provided by Toby Frevert, Illinois EPA, prefiled
18 testimony, Attachment 1. To facilitate the Illinois
19 Pollution Control Board and interested members of the
20 public's review of identified stream segments in need of
21 incrementally higher dissolved oxygen standards, the
22 Illinois DNR provided geographically referenced data
23 layers and associated software in compact disk format, or
24 CDs.
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1
In addition to recommending two levels of numeric
2 standards for dissolved oxygen, the Illinois DNR and
3 Illinois EPA are also recommending an additional 30-day
4 period as a state-wide date, July 31, for protecting
5 early life stages of fish. This is in contrast to the
6 Illinois Association of Wastewater Agencies' recommended
7 date of June 30. The Illinois DNR believes that based on
8 the scientific literature presented in the technical
9 support document, an additional 30-day period is
10 necessary to protect early life stages of fish.
11
While the IAWA's proposed date of June 30
12 protects the majority of spring season spawns, it
13 neglects to include the spawning period of the summer
14 season spawns and neglects to include a 30-day period for
15 protection of post-hatch embryonic and yolk-sac fry
16 development. In general, by July 31, all late spawning
17 fish species will have a substantial majority of their
18 spawning and fry development into dates when higher
19 dissolved oxygen standards will be in effect. Even
20 though some larvae will be present into August, Illinois
21 DNR fisheries managers believe the July 31 date should
22 not be detrimental to the overall recruitment of a year
23 class for fish species. A full discussion of the data
24 supporting the selection of the July 31 date for
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1 protection of early life stages is provided in the
2 technical support document on pages 23 through 31.
3
The Illinois DNR and Illinois EPA developed these
4 joint recommendations with input from stakeholder groups.
5 Scheduled stakeholder meetings were held on October 19,
6 2005, in Chicago and November 15, 2005, in Springfield.
7 These meetings were attended by the Illinois DNR,
8 Illinois EPA, IAWA, Illinois Environmental Regulatory
9 Group, Sierra Club, Prairie Rivers Network, USEPA and the
10 Friends of the Chicago River. The Illinois DNR and
11 Illinois EPA hosted additional meetings with IAWA on
12 February 24, 2006, and with the Sierra Club and Prairie
13 Rivers Network on March 1, 2006. The stakeholder process
14 provided valuable input to the Illinois DNR and Illinois
15 EPA in developing these recommendations for dissolved
16 oxygen standards.
17
The Illinois DNR believes these joint
18 recommendations provided through testimony and the
19 technical support document significantly enhance
20 protection for aquatic life in comparison to the
21 dissolved oxygen standard currently in place.
22 Specifically, these joint recommendations improve the
23 current standard by identifying a season that protects
24 for early life stages of fishes, providing dissolved
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1 oxygen standards more consistent with USEPA's national
2 criteria document for dissolved oxygen of 1986, and
3 attempting to account for the seasonal and natural
4 variability of dissolved oxygen.
5
The Illinois DNR believes the two agencies'
6 recommendations build upon and enhances the proposed
7 amendments to the current dissolved oxygen standards
8 presented by IAWA by including two levels of numeric
9 standards for protection of identified dissolved oxygen
10 sensitive organisms in Illinois; a narrative standard for
11 waters that naturally cannot achieve consistently higher
12 levels of dissolved oxygen such as wetlands, sloughs,
13 river backwaters and lakes and reservoirs below the
14 thermocline; the addition of a 30-day chronic standard
15 consistent with the USEPA national criteria document
16 applicable to both levels of numeric standards for
17 dissolved oxygen; and an additional 30-day period
18 necessary to protect early life stages of fish.
19
The Illinois DNR does not view these joint
20 recommendations as a lowering of dissolved oxygen
21 standards within some waters during certain times of the
22 year, but rather as focusing needed protection for most
23 sensitive types and life stages of aquatic life where
24 required. At the same time, the Illinois DNR and
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1 Illinois EPA recommendations are not unnecessarily
2 overprotective elsewhere. Therefore, the Illinois DNR
3 further believes these joint recommendations will allow
4 targeting of limited state resources to the most critical
5 waters impacted by low dissolved oxygen concentrations.
6
Staff from the Illinois DNR has testified at both
7 the August 12, 2004, and the August 25, 2005, hearings.
8 Testimony for the August 25, 2005, hearing was prefiled
9 by Dr. David L. Thomas, chief of the Illinois Natural
10 History Survey, on behalf of the Illinois DNR. During
11 that hearing, Mr. Stanley Yonkauski, Illinois DNR
12 attorney, moved to withdraw the Illinois DNR prefiled
13 testimony in order to allow the development of a joint
14 position between Illinois DNR and Illinois EPA regarding
15 dissolved oxygen standards. In addition, testimony was
16 also provided by Dr. Thomas during the August 12, 2004,
17 hearing. The Illinois DNR testimony currently on the
18 record was provided in response to a June 24, 2004,
19 letter from the Lieutenant Governor's Office regarding
20 questions related to the dissolved oxygen issue.
21 Dr. Thomas' testimony was provided in the form of a
22 response letter to the Lieutenant Governor's Office.
23
The Illinois DNR testimony of August 12, 2004,
24 identified two issues regarding dissolved oxygen that
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1 need to be referenced in context of the recommendations
2 provided by the Illinois DNR and Illinois EPA today.
3 Dr. Thomas stated that, quote, "the one-day minimum
4 concentration of 3.5 milligrams per liter and the
5 seven-day mean minimum of 4.0 milligrams per liter as not
6 being conservative enough and potentially endangering
7 some aquatic life in the state," unquote. The 3.5 and
8 4.0 milligrams per liter dissolved oxygen standards
9 proposed by IAWA are also in part contained in these
10 joint recommendations provided by Illinois DNR and
11 Illinois EPA. The Illinois DNR believes these joint
12 recommendations address Dr. Thomas' concerns expressed in
13 the previous Illinois DNR testimony by addition of two
14 levels of numeric standards described in the technical
15 support document on pages 1 through 4.
16
In these joint recommendations, the one-day
17 minimum concentration of 3.5 milligrams per liter and the
18 seven-day mean minimum of 4.0 milligrams per liter are
19 applicable only to juvenile and adult life stages within
20 level two waters. Applicable dissolved oxygen standards
21 for juvenile and adult life stages in level one waters
22 and for early life stages within both level one and two
23 waters are incrementally higher.
24
The second issue stated in previous Illinois DNR
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1 testimony identifies the need to maintain a 5.0 milligram
2 per liter minimum at all times, which is consistent with
3 the existing dissolved oxygen standards. Dr. Thomas
4 further stated, quote, "that there are species that
5 probably would not be protected at lower levels,"
6 unquote. In developing these joint recommendations,
7 Illinois DNR and Illinois EPA investigated extensively
8 dissolved oxygen sensitivity to fish, macroinvertebrates
9 and mussels during life stages described in the technical
10 support document on pages 10 through 22. Based on this
11 further scientific analysis, a 5.0 milligram per liter
12 acute dissolved oxygen standard is only necessary for
13 protection of early life stages within level one and
14 level two waters. For juvenile and adult life stages,
15 protective acute dissolved oxygen standards include 4.0
16 milligrams per liter for level one waters and 3.5
17 milligrams per liter for level two waters.
18
At this point I would like to thank the Illinois
19 Pollution Control Board for providing the Illinois DNR
20 and Illinois EPA additional time to develop a joint
21 position in this matter as well as all those people who
22 fully participated in the stakeholder process. Illinois
23 DNR staff making significant contributions to this
24 process include Scott Stuewe, Ann Holtrop, Dr. Dave L.
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1 Thomas, Dr. Kevin Cummings, Jim Mick, Mike Conlin and
2 Illinois DNR deputy director Leslie Sgro. Staff from the
3 Illinois EPA spent countless hours working directly with
4 the Illinois DNR, including Toby Frevert, Roy Smogor,
5 Matt Short, Mark Joseph, Gregg Good, Bob Mosher, Stefanie
6 Diers, Deborah Williams and Marcia Willhite. From the
7 Sierra Club and Prairie Rivers Network, I'd like to thank
8 Albert Ettinger, Cynthia Skrukrud and Glynnis Collins.
9 Finally, I'd like to thank IAWA, including Dennis
10 Streicher, Roy Harsch and Dr. James Garvey from Southern
11 Illinois University.
12
In addition to myself, other DNR staff here today
13 and can be called upon to address specific questions
14 related to the technical support document as needed.
15 Scott Stuewe, acting chief of the Division of Fisheries,
16 can address questions related to biological data and
17 information. Ann Holtrop, Watershed Protection Section,
18 can address questions related to the overall process used
19 to determine waters that warrant a higher dissolved
20 oxygen standard. That concludes my prefiled testimony.
21
HEARING OFFICER MCGILL: Thank you.
22
MR. YONKAUSKI: I'm not sure what to do with
23 the CD, Mr. Hearing Officer, that was filed as an
24 attachment, if you will, with all -- the joint -- the two
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1 agencies' prefiled testimony, and to be honest, we
2 haven't talked about it amongst ourselves, whether to
3 make it an exhibit or just leave it as a document that is
4 a useful tool but not necessarily part of the hearing
5 record.
6
HEARING OFFICER MCGILL: We can make it a
7 hearing exhibit. It is in the rulemaking record as part
8 of the prefiled testimony, but if you have a copy there,
9 we can certainly consider taking that as a hearing
10 exhibit as well. So there's a motion to include as a
11 hearing exhibit the IDNR/IEPA proposed streams for
12 enhanced dissolved oxygen protection CD, compact disk.
13 This was attached to Mr. Cross' prefiled testimony. Any
14 objection to entering this CD as a hearing exhibit?
15 Seeing none, I will mark it as Exhibit 24 and enter it
16 into the record as a hearing exhibit.
17
MR. YONKAUSKI: Thank you.
18
HEARING OFFICER MCGILL: Thank you. Does
19 that conclude the testimony at this point?
20
MR. YONKAUSKI: Yes, it does.
21
HEARING OFFICER MCGILL: Why don't we take a
22 break for a second. Let's go off the record.
23
(Brief recess taken.)
24
HEARING OFFICER MCGILL: At this point we're
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1 going to open it up to questions for the witnesses of the
2 Agency and DNR. As I mentioned earlier, Mr. Ettinger,
3 counsel for Sierra Club and Environmental Law & Policy
4 Center and Prairie Rivers, is going to initiate
5 questioning. After that, we'll have an opportunity for
6 counsel for IAWA to pose questions and then we'll open it
7 up to other members of the audience. Mr. Ettinger?
8
MR. ETTINGER: Yes. I'm not sure how to
9 handle this. I'm Albert Ettinger. I'm identified on the
10 record as representing the Sierra Club, Prairie Rivers
11 and Environmental Law & Policy Center. My questions are
12 all basically going to be addressed to the Attachment 1,
13 which is the proposal itself, and I'm not sure how we'll
14 handle this because I don't really care which of the
15 panel answer the question, but I do -- will be seeking
16 clarifications of various terms in this Attachment 1.
17
HEARING OFFICER MCGILL: And if I could just
18 interrupt for a moment, Attachment 1 is now Exhibit 20,
19 and that's the proposed rule language.
20
MR. ETTINGER: Yes.
21
HEARING OFFICER MCGILL: If you want to pose
22 your questions to the panel, if it's okay with counsel
23 for the Agencies, then you can figure out who should best
24 respond.
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1
MR. ETTINGER: Yeah, but don't all talk at
2 once. My first question is addressed to what's been
3 numbered here as 302.100, definitions, and we'll ask you,
4 what is a thermally stratified body of water?
5
MS. WILLIAMS: Roy Smogor will be able to
6 answer that for you.
7
MR. SMOGOR: A thermally stratified body of
8 water is a body of water that because of differences in
9 temperature from the surface to the bottom, the water
10 takes on a different density with temperature, and in the
11 summer that happens and sometimes also happens in the
12 winter. So water has certain properties whereas it
13 lowers in temperature towards about 4 degrees celsius, it
14 increases in density, and as it goes from 4 degrees
15 celsius down to 0 degrees celsius, actually, its density
16 decreases. That's why ice floats. So as water gets
17 colder, it sinks to the bottom until it gets even colder,
18 and then it goes back to the top, and that's why water
19 freezes from the top down. In the summer and in the
20 winter, because of these density differences, there's a
21 stratification. There's strata of different densities of
22 water with the heaviest water on the bottom, the most
23 dense water on the bottom and the least dense water on
24 the top.
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1
MR. ETTINGER: We're talking about
2 generalities here, but how deep would you expect the
3 water body to be for it to be thermally stratified?
4
MR. SMOGOR: A lot of factors are involved.
5 Shallow -- Very shallow waters perhaps don't set up a
6 constant stratification because wind has enough force on
7 it to mix those waters and prevent those density layers
8 from -- the more dense ones from sinking. It varies with
9 a lot of factors, exposure of the water body surface to
10 prevailing winds, depth and wind interact. I can't give
11 you a specific depth.
12
MR. ETTINGER: Would this mainly apply to
13 lakes and reservoirs or would it also apply to rivers?
14
MR. SMOGOR: Excuse me. Okay. Primarily
15 this applies to lakes and reservoirs.
16
MR. ETTINGER: And how big a difference
17 between the top and the bottom in terms of temperature
18 would you generally be looking at? One degree? Ten
19 degrees? What kind of numbers would we be looking at?
20
MR. SMOGOR: I don't know offhand. It's
21 been a while since I sampled a lake. Matt, by any
22 chance?
23
MR. SHORT: It's -- It varies, of course,
24 with each lake, but probably anywhere from 15 degrees.
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1 In terms of Fahrenheit you might get water 55 degrees at
2 the bottom of a lake in the summertime and then the upper
3 water temperatures, you know, be in the 70s or even
4 higher at the very surface. You get sort of a gradient
5 that occurs in temperature, and when you hit the
6 thermocline, there's often -- there's a pretty dramatic
7 change in dissolved oxygen in the water and pH and
8 temperature is a little more gradual in its change, but
9 it's -- it also changes pretty significantly.
10
MR. ETTINGER: My question now is then how
11 would you determine whether a water is stratified?
12
MR. SHORT: We would have to sample it,
13 because the lakes aren't stratified all year round.
14 Within a lake, the entire lake may not be stratified.
15 Only the portion down by the dam, for instance, where
16 it's deeper, may be stratified. The upper portions of
17 our lakes and reservoirs particularly which are dammed-up
18 rivers, the upper portion of that may not be stratified
19 and so you would get fairly equal temperature and
20 dissolved oxygen profile from top to bottom, but once you
21 entered some of those deeper areas, you would enter those
22 areas where the stratification was occurring at.
23
MR. ETTINGER: So is there some definition
24 of stratified or is it judgment call as to whether it's a
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1 stratified body of water or not, or how would you
2 determine that?
3
MR. SMOGOR: This is -- There's a definition
4 to the thermocline. It's somewhat mathematical. You --
5 If you measure temperature starting from the surface,
6 say, at every foot, you measure the temperature as you go
7 down to the bottom from surface to the bottom, that
8 temperature's going to get lower and lower as you go from
9 top to bottom. In that one-foot or two-foot or
10 three-foot interval where you get the greatest change in
11 temperature, the greatest decrease, that defines the
12 thermocline, so it's kind of a theoretical point at which
13 the temperature changes the most within the shortest
14 change in depth, and you can set that up in a graphical
15 approach. If you measure and plot it in a graph, you can
16 see that in a graph and draw a line across that defines
17 the thermocline.
18
MR. ETTINGER: By definition, the most could
19 be smaller in some bodies of water than others.
20
MR. SMOGOR: Correct. It's all relative.
21 It's relative within that water body.
22
MR. ETTINGER: Does IEPA or IDNR have a list
23 of stratified bodies of water?
24
MR. SMOGOR: Not that I'm aware of.
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1
MR. ETTINGER: Now, we've been talking about
2 lakes and reservoirs. In Illinois, most of our lakes are
3 dammed rivers or creeks, aren't they?
4
MR. SMOGOR: Yes.
5
MR. ETTINGER: Are those intended to be
6 included by this as a reservoir?
7
MR. SMOGOR: Yes.
8
MR. ETTINGER: Okay. So are we talking
9 about the Fox River behind the dam?
10
MR. SMOGOR: I don't know. That's called a
11 run-of-river reservoir, and those are somewhat different
12 than reservoirs that aren't run-of-river reservoirs.
13
MR. ETTINGER: How about the Illinois River
14 behind the LaGrange Dam? Would that be a reservoir for
15 this purpose?
16
MR. SMOGOR: Excuse me. I think those types
17 of run-of-river reservoirs do fit our intent in that they
18 are likely -- they can set up a thermal stratification,
19 and because of that thermal stratification, the deeper
20 layers will be -- will have less oxygen. I don't have
21 any data on that on hand, but they do set up analogous to
22 other reservoirs.
23
MR. ETTINGER: I'm just trying to understand
24 this, because down the road of course we're going to be
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1 faced with DO readings at various parts of a water body
2 and we're going to want to know whether or not this is a
3 violation or not based on the DO ratings -- readings, so
4 I'm trying to avoid infinite numbers of arguments and
5 TMDL lists for the next 20 years. So am I to understand,
6 then, that for example you would expect the Fox River to
7 be stratified in this manner and that we wouldn't be
8 looking at bottom readings for DO directly behind the dam
9 in the Fox River?
10
MR. FREVERT: I just want to clarify our
11 intent here. Our intent is to make it clear to everybody
12 that the DO standards apply in those upper stratas.
13 While we cannot expect to meet DO in the lower isolated
14 water bodies simply because the aerating dynamics don't
15 exist, it's clear above that thermocline, and those DO
16 standards do apply. If you're out there monitoring,
17 you'd better measure enough information with the
18 temperature, density or whatever else to go along with
19 that DO to see that that DO reading you've measured is in
20 the strata where the standard applies. And I don't
21 believe we can numerically define where that
22 stratification takes place everywhere, but the concept
23 holds true anywhere you do it. A body that's deep enough
24 and the energy or the dynamics are not conditions to have
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1 thorough mixing, you're going to have a zone in a lower
2 area which cannot maintain oxygen. We're trying to
3 acknowledge that.
4
MR. ETTINGER: I'm not trying to argue. I'm
5 just trying to make sure that in the future, when we have
6 a body of DO data, we know what we've got here and how
7 the rule applies to it. If we've got DO ratings --
8 readings, then, in a body of water that's potentially
9 stratified, will they be meaningful if we don't have
10 temperature data at the same time?
11
MR. SMOGOR: I think in order to establish
12 that a thermocline exists, by definition you need to have
13 the temperature data to show that, and so once you show
14 that the thermocline exists and you define where that is,
15 then you're dealing with the area above the thermocline
16 for application of the standard.
17
MR. FREVERT: Let me follow up on that.
18 It's not overly burdensome and it is routine to measure
19 temperature, so we don't feel like that's a big
20 limitation.
21
MR. ETTINGER: Just -- So if I were to --
22 Let's say I had a DO reading from the Fox River. In
23 order to know whether this violated the -- this DO
24 reading violated the standard or not, I would need a
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1 series of temperature readings in the Fox River to see at
2 what point was the maximum rate of decrease of
3 temperature in that water, and then I would be able to
4 identify whether that DO reading was above or below that
5 maximum temperature change. Do I have that correct?
6
MR. FREVERT: Yes.
7
MR. SMOGOR: Yes.
8
MR. ETTINGER: Are there any presumptions
9 that go into this in terms of whether a water is
10 potentially thermally stratified or not, or is it the
11 Agency's intention to take a temperature reading on every
12 water body and try and determine the thermocline?
13
MR. FREVERT: It's the Agency's intention in
14 our monitoring program that there's potential for
15 stratification, and we're measuring the various depths,
16 the temperature. And the other thing I want to point out
17 is there are times of the year when stratification does
18 not exist. Seasonally the lake can be fully mixed and
19 you don't have a stratified condition, so you also need
20 to show -- if you're applying the standard above
21 stratification, above the thermocline, there needs to be
22 a thermocline for that concept to hold, and sometimes
23 there isn't.
24
MR. ETTINGER: Are there creeks that are
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1 shallow enough so that you would just never expect to see
2 a thermocline there?
3
MR. FREVERT: Yeah, I'll turn it on. That
4 helps. Yeah, a lot of water bodies, there's enough
5 turbulence and agitation and movement that it's
6 thoroughly mixed at all times of the year and there is no
7 thermal stratification, and likewise there shouldn't be a
8 major hampering of reaeration or oxygen input into those
9 lower portions of the water system.
10
MR. ETTINGER: Okay. I'm looking now at
11 what's been numbered 302.206, dissolved oxygen, and then
12 A. As I gather, A is a narrative standard; is that
13 correct?
14
MR. FREVERT: I believe so, yes.
15
MR. ETTINGER: How does the Agency apply
16 narrative standards?
17
MR. FREVERT: Many ways, I guess. It
18 depends on the specific narrative standard. In this case
19 it's a recognition of why we cannot attain and we don't
20 believe it's reasonable to expect to attain the standards
21 we set for the bulk of the general use waters in
22 Illinois. There are isolated areas where the physical
23 and chemical and biological circumstances are such that
24 you cannot maintain that standard. Nevertheless, you
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1 must maintain sufficient oxygen that you don't have other
2 problems develop, like odors and things of that nature.
3
MR. ETTINGER: Okay. Looking at the first
4 sentence of this, just to be clear, although I think it's
5 reasonably clear, it says, "General use waters at all
6 locations shall maintain sufficient dissolved oxygen
7 concentrations to prevent offensive conditions as
8 required in Section 302.203 of this part." Offensive
9 conditions in this sentence has no meaning independent of
10 302.203.
11
MR. FREVERT: That's correct. Our attempt
12 was to have this as a backstop to show that we're not
13 abandoning the existing standard for offensive
14 conditions.
15
MR. ETTINGER: I should have brought my
16 dictionary with me. What does quiescence mean?
17
MR. FREVERT: In my mind, that's a term that
18 means there's such little movement that you don't have a
19 lot of natural energy to help oxygen transfer in and out
20 of the system, particularly the air-water interface. You
21 don't get as much oxygen reabsorption and transmittal
22 down below the surface.
23
MR. ETTINGER: Okay. I have a better
24 intuition as to what isolated means, but what does it
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1 mean in this context?
2
MR. FREVERT: To a great extent, the
3 isolated concept is a backwater area or some relatively
4 readily identifiable component of an overall stream
5 system or a lake system where it is part of that system
6 but it's physically isolated such that the water movement
7 in and of that area is not a part of the main body of
8 water and as such you don't have the physical conditions,
9 the velocities, the turbulence, the mixing, the air
10 occurrence, whatever else, to facilitate that natural
11 reaeration process, and there are physical limitations
12 against reaeration to maintain that oxygen supply.
13
MR. ETTINGER: You don't mean isolated in
14 the sense that there's no water between it and the
15 stream, would you?
16
MR. FREVERT: Well, in terms of large river
17 backwaters, some of these shallow backwater -- people
18 call them lakes, some of them are lakes, some of them are
19 sloughs or whatever, major backwaters of the Mississippi
20 and Illinois River where there may be a levee or some
21 other high spot in between, and they truly are separated
22 and isolated from the natural velocity, the other natural
23 dynamics that help maintain oxygen concentrations.
24 That's the kind of water body that nevertheless is still
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1 a general use water body and it's subject to protection
2 for all of its capabilities and all of its beneficial
3 uses, including aquatic life. We know oxygen there at
4 times is going to be significantly lower than it is the
5 main river. I don't believe anybody's done enough
6 research to specify and put numbers on that, but you know
7 it exists. We're trying to acknowledge that and say we
8 don't want an administrative violation when those natural
9 things take place, but we also want to make sure
10 everybody understands that oxygen can't be further
11 deteriorated from its naturally occurring conditions.
12
MR. ETTINGER: Okay. Isolated wetland, in
13 the sense of isolated wetland that they've been talking
14 about, the wetland's not physically connected to another
15 body of water. Is that what you mean here, that this
16 isolated section is not -- you know, a minnow couldn't
17 get from that isolated section into the main body of
18 water, or do you mean that it's isolated some terms --
19 I'm sorry -- isolated in terms of flow of the water such
20 as that it's a sort of slow area behind a rock in the
21 stream, if you see what I mean?
22
MR. FREVERT: Well, I don't know that that
23 example would qualify for isolated in my mind, but
24 certainly a wetland that is physically removed from any
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1 other water body. It's going to behave like a wetland,
2 and I don't expect wetlands to maintain the level of
3 oxygen I expect to maintain in a stream. So that's a
4 classic example where I think the standard overreaches.
5 The current general use standard applies to all general
6 use waters and all wetlands are general use waters, and
7 we don't expect wetlands to maintain that high a DO, so
8 definitely that qualifies.
9
MR. ETTINGER: You kind of alluded to this.
10 When is a backwater a lake, that we treat it as a lake
11 and look at it in those terms?
12
MR. FREVERT: I guess my simplistic answer
13 is it depends on the individual you're talking to. A lot
14 of our citizens will have -- what's a lake to somebody is
15 a backwater to another.
16
MR. ETTINGER: Do you know where Swan Lake
17 is? Swan Lake's off the Illinois by Pere Marquette State
18 Park.
19
MR. FREVERT: I'm not as familiar with Swan
20 Lake as I am some of the other Illinois backwaters.
21
MR. ETTINGER: Well, how about Rice Lake?
22 We've all heard of Rice Lake.
23
MR. FREVERT: Yeah.
24
MR. ETTINGER: Is that a lake or a
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1 backwater?
2
MR. FREVERT: I know people who would call
3 it each, and I know people that in their easy chairs
4 would debate about that.
5
MR. ETTINGER: Yeah. The -- I guess the
6 question I have, though, is if we treat it as a lake,
7 under this rule, it would seem that the lake rules would
8 apply, whereas if you treat it as a backwater, it would
9 seem that only the narrative applies. Is that correct,
10 or how do you decide that?
11
MR. FREVERT: You know, if you're going to
12 get in that touchy area, I would -- before I passed
13 judgment and told the world this body of water is good or
14 bad or indifferent, I'd want to do a little more data
15 collection, a little more monitoring and measuring, and
16 I'd want to actually know what the DO is and how deep
17 that lake is and things of that nature. I understand you
18 want a little more clarity in where this language applies
19 and where it does not apply, but things like Rice Lake, I
20 know for a fact that in major parts of Rice Lake you're
21 going to get some stratification, and even without
22 stratification you're going to have some DO that it's
23 noticeably lower than the DO of the Illinois River 50
24 yards away, and it's due to the nature of and the fact
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1 they accumulate a lot of sediment with high organic
2 matter. It's just naturally not going to have that high
3 DO, and for me to measure a DO that's below the standard
4 doesn't lead me to conclude the ecosystem is disrupted.
5
MR. ETTINGER: Well, I guess that's where my
6 question comes in. How do you determine -- If I read
7 this rule -- and correct me if I'm wrong -- if we decide
8 Rice Lake is a backwater, then the narrative condition
9 applies and nothing else. If we decide that it's a lake,
10 then it's either thermally stratified or it's not. If
11 it's not thermally stratified and it's pretty shallow, it
12 may not be, then the numeric DO standards would apply,
13 wouldn't they?
14
MR. FREVERT: I think that's correct. I
15 think the other thing you need to understand is that Rice
16 Lake regardless of what you call it does indeed support a
17 fishery community and other aquatic life, and when we
18 identify those needs, the fact that the specific numeric
19 standards don't apply doesn't mean that there will not be
20 a numeric standard we can identify based on those
21 populations.
22
MR. ETTINGER: I'm not trying to argue about
23 anything other than what the rule applies to and how to
24 apply it, and I've just -- that's my issue here.
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1
MR. FREVERT: Well, the direct answer, then,
2 yes, in my mind, the specific numbers of the numeric rule
3 would not apply to the bulk of Rice Lake.
4
MR. ETTINGER: Okay. So --
5
MR. FREVERT: But we may indeed find numbers
6 we can apply and they may be very similar, but we would
7 have to define that based on the application of this
8 narrative, based on the uses that are there that we're
9 trying to protect.
10
MR. ETTINGER: Natural ecological functions,
11 what do we mean by that?
12
MR. FREVERT: To a great extent, that's
13 going to be the aquatic life population in there. If
14 those natural functions are seasonal, fish harborage or
15 even year-round fish presence, then we have to look at
16 the specific needs of that population of fish, which
17 would probably be more limited and more restricted, but
18 nevertheless, we don't want odors, we don't want fish
19 kills. The functional uses have to be maintained, and
20 those uses we know are somewhat different than that main
21 river that hopefully we know enough about that we can
22 support a specific numeric standard. We don't know
23 enough about these to support a specific numeric
24 standard.
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1
MR. ETTINGER: Now, is that natural as
2 opposed -- as to what could be there or what there is
3 there now? Let's say we have a side channel that is now
4 heavily polluted by, say, runoff coming from a hill above
5 it, as Swan Lake was. Would we want to maintain DO
6 levels in that lake or attempt to maintain DO levels in
7 that lake under the standard such as they could support a
8 natural ecological function if the water weren't polluted
9 or as it is polluted?
10
MR. FREVERT: Wow, now you're getting
11 theoretical. Well, if the pollution you're referring to
12 translates into an oxygen depression, that's one thing.
13 If it's a different kind of pollution, that's a different
14 thing, but under the circumstances, if we've identified
15 an impaired use, and say that's an impaired aquatic life
16 use, before I can run out and deliver the solution, I'm
17 going to have to make sure I know what the causative
18 agents are, and if we study that situation and conclude
19 that this water body even though it's not expected to
20 meet the numeric standards we recommended does have
21 oxygen needs that are not being met, yes, then we'd deal
22 with whatever sources are bringing that oxygen down.
23
MR. ETTINGER: I'm not trying to be cute.
24 I'm just -- If I got a Sierra Club volunteer who runs
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1 down to Swan Lake, which is by Principia College, and
2 takes a DO measurement and says it's 2.5 and he wants to
3 know whether or not that violates the water quality
4 standard, how would we reason to determining whether or
5 not it does?
6
MR. FREVERT: I don't think you can answer
7 that question in that circumstance. If you go to a
8 specific location where we don't expect based on our
9 knowledge and how the systems function to meet the full
10 numeric standard, do we have enough confidence to propose
11 a more mainstream flowing system? You measure a specific
12 number. If you don't know whether or not that
13 constitutes a significant impairment or detriment to the
14 community, I don't feel comfortable for convenience
15 putting the standard on the books to let somebody
16 automatically make a conclusion when he shouldn't make a
17 conclusion just on that one measurement. I think that's
18 part of our problem now. We've got a standard now that's
19 not helping us because we measure violations in places
20 where we believe the uses and particularly the aquatic
21 community is perfectly healthy and what it's expected to
22 be. This isn't a perfect standard, but it's a --
23 incrementally we're moving towards the recognition that
24 the standard can be overly simplistic and it can't apply
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1 everywhere if it's actually going to help us manage our
2 resources and our functions properly.
3
MR. ETTINGER: The next term is resident
4 aquatic communities. Is that meant to refer to whatever
5 is there now?
6
MR. FREVERT: Well, certainly that is true,
7 but I believe in the instance that you actually have
8 documented conditions such that there are organisms you'd
9 expect to be there that would be resident under the
10 normal conditions for that normal type of water body and
11 they're absent, then I would believe they qualify under
12 this definition as well.
13
MR. ETTINGER: Okay. So if -- IEPA doesn't
14 do this much anymore, but you used to permit people to
15 discharge into backwater sloughs. If we had a discharge
16 into a backwater slough such that it was causing ammonia
17 or DO conditions that were low, that could be a violation
18 even though it wasn't harming what's there now, because
19 what's there now is a result of the pollution that's in
20 the slough.
21
MR. FREVERT: Maybe one of the other guys --
22 I'm not sure I understand what you're asking, Albert.
23 Can you rephrase it? Or maybe one of the other guys can
24 take it.
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1
MR. ETTINGER: I guess was it Bobby Kennedy
2 said, "Others look at what there is and ask why; I ask --
3 I look at what there is now and ask why not"? I guess
4 what I'm asking is when you're looking at these waters,
5 are you making some sort of analysis in terms of resident
6 aquatic communities as to what should be there or what
7 there is there?
8
MR. FREVERT: Generally it's sort of part
9 and parcel of our process to look at what should be
10 there, and I want to assure you if I'm looking at what's
11 in Rice Lake, I'm also going to be looking at it in the
12 context of what I know to be in Hennepin Lake and some of
13 the others up in -- and Senachwine Lake, the other
14 similar water bodies, and if something is indeed
15 detrimentally affected, it should stand out if it's not
16 got that collection of organisms that are in similar
17 water bodies.
18
MR. ETTINGER: I've just got a question now
19 about how the second sentence of this A relates to the
20 first -- I'm sorry -- the first sentence of A. Do you
21 intend to prevent offensive conditions in these quiescent
22 and isolated sectors?
23
MR. FREVERT: Yes. I'm going to elaborate
24 here on the danger of making my attorneys and everybody
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1 else nervous, but as an example, in a thermocline area,
2 there are probably circumstances in the thermoclines in
3 several lakes in the state of Illinois where the DO can
4 go as low as zero, and it's down in that stratified area
5 and isolated such that it's not producing a nuisance
6 condition and it's not interfering with the functional
7 use of that particular portion of the resource, but
8 it's -- a low enough oxygen condition in another part of
9 the system, it would be detrimental or offensive.
10
MR. ETTINGER: This raises a question with
11 how you deal with this thermocline concept with regard to
12 mussels, which I naively think they're on the bottom.
13 How would they be affected -- I guess I'll ask the
14 biologist here -- by allowing a much lower DO level at
15 the water's bottom?
16
MR. FREVERT: I'll give you an answer as an
17 engineer and then let the biologist field one. I believe
18 most of the thermoclines are not the kind of habitat
19 where you see a lot of mussels, and probably the
20 shallower portions of those reservoirs and lakes are
21 where the prime mussel habitat is, and those areas we
22 think we're protecting.
23
MR. CROSS: Yeah, I would agree with Toby's
24 answer to that. Where we see these areas where we have
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1 anoxic conditions and things like that that are protected
2 by this narrative standard, those aren't the typical
3 types of habitats where you'd expect to see mussels and
4 that's not where they're typically going to have evolved
5 and developed and basically take up residence.
6
MR. ETTINGER: You won't see mussels below a
7 thermocline?
8
MR. CROSS: Generally, that's correct.
9
MR. ETTINGER: Okay. Now we're on to 11(d).
10 I'm sorry. I'm sorry. 302.206(b) says the main body of
11 all streams -- except for those waters identified in
12 Appendix D of this part, the main body of all streams.
13 Is that different from the water bodies that aren't
14 quiescent or isolated, or is every part of the stream
15 that isn't quiescent or isolated part of the main body?
16
MR. FREVERT: The attempt of that language
17 is to avoid a lot of bickering and debate about whether
18 or not your probe was six inches too high or too low or
19 too right or too left or whether it was in a riffle or a
20 pool; basically saying throughout the resource. Other
21 than these places we've identified as sort of naturally
22 isolated, throughout the entire resource the number
23 applies. It doesn't apply just at a certain location.
24
MR. ETTINGER: That's what I was trying to
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1 make sure. The main body applies to every part of the
2 stream that isn't quiescent or isolated.
3
MR. FREVERT: Yes.
4
MR. ETTINGER: Okay. I want to talk now
5 about D. We're at 302.206(d). (D)(3), "The measurements
6 of dissolved oxygen used to determine attainment or lack
7 of attainment with any of the dissolved oxygen standards
8 in this section must assure daily minima and daily means
9 that represent the true daily minima and daily means."
10 Would you explain this?
11
MR. FREVERT: The intent there is for
12 somebody that carries out a measuring program to
13 characterize attainment or non-attainment of the
14 standard. It is their responsibility to assure that the
15 way they design their monitoring system and the way they
16 collect their data, it is truly representative, not
17 misrepresentative of the normal variation. You can't go
18 out and get three samples at nine at night, ten o'clock
19 at night and eleven o'clock at night and pretend they
20 represent the full 24-hour period. And I'm not trying to
21 specify how many samples is the minimum to do it
22 correctly. I think that would be a difficult or
23 impossible task, but you must -- if you're collecting
24 data and you're using it to draw conclusions or make
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1 assertions about compliance with this standard, it's your
2 responsibility to look at the representativeness of your
3 monitoring scheme and its statistical reliability.
4
MR. ETTINGER: Okay. Correct me if I'm
5 wrong, but as I understand it, many waters that are
6 affected by algal activity have a diurnal swing in
7 dissolved oxygen levels. Is that correct?
8
MR. FREVERT: Most streams and lakes have a
9 diurnal swing at least seasonally, and the extent of that
10 swing is in relationship to the level of algal activity,
11 yeah. The more algal activity, the more extreme the
12 swing.
13
MR. ETTINGER: So would you expect someone
14 who was trying to determine attainment or lack of
15 attainment to attempt to measure the dissolved oxygen
16 levels at a time in which the diurnal swing would lead to
17 the minimum dissolved oxygen level?
18
MR. FREVERT: I don't know that I have a
19 problem answering it. I'm just not sure I understand
20 what you're asking. Are you -- I mean, we've got a
21 recommendation out here that the combination of an
22 instantaneous value and daily average, so if you're
23 trying to demonstrate whether or not the instantaneous
24 value is exceeded, if you measure a number below it,
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1 you've done that. If you measure above -- a number above
2 it, you haven't done that, because you may have to
3 measure more times to make sure you've gotten the bottom.
4 But if you're looking at the average, you should -- I'm
5 not sure it matters what the absolute minimums are as
6 much as you see the representativeness. Concept here is
7 organisms can tolerate a low dissolved oxygen for short
8 periods, but in order to maintain health, they have to
9 have a reasonably high oxygen over the bulk of the time
10 period, so for the average periods, the more aggressive
11 the swing back and forth, it would be prudent to have a
12 more rigorous monitoring program. And again, I'm trying
13 to avoid specifying an absolute minimum number of samples
14 because that's going to vary.
15
MR. ETTINGER: Would you expect that if you
16 had a stream that you knew was affected by algal activity
17 that you would want to collect some pre-dawn DO data?
18
MR. FREVERT: Oh, yeah, very much so, and I
19 would probably set out some kind of data loggers and get
20 periodic sampling every 15 minutes or so all day and all
21 night long.
22
MR. ETTINGER: Let's say that you have a
23 monitoring program and the data that you come up with are
24 dissolved oxygen numbers that are fairly close to the
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1 standard but they were taken in the afternoon. Would you
2 feel that that had satisfied this requirement?
3
MR. FREVERT: No. I mean, it's my job to
4 ultimately exercise a judgment on the condition of that
5 water body, and I collect some information that isn't
6 conclusive, I think I have a responsibility to expand the
7 monitoring and go back and do more, not just to make a
8 convenient conclusion because I don't have the time or
9 the desire to go out and collect more data.
10
MR. ETTINGER: So a 5.1 at three o'clock in
11 the afternoon would probably lead to further
12 investigations.
13
MR. FREVERT: Right. That would be my
14 assignment to my staff. If you get numbers that are
15 questionably low at a time of the day you don't expect
16 them to be low, let's go out and do our diligent homework
17 and find out what's really going on.
18
MR. ETTINGER: Okay. Should I go on or --
19 we're fine now on time?
20
HEARING OFFICER MCGILL: Yeah. It's 12:05.
21
MR. ETTINGER: Oh, great. I should be done
22 by lunch. Can someone explain (d)(4) to me, "The
23 dissolved oxygen value used in calculating or determining
24 any daily mean or daily minimum should not exceed the 100
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1 percent air-saturation value"?
2
MR. FREVERT: I can give you part of it and
3 Roy's going to have to give you the rest of it.
4 Obviously if you exceeded 100 percent of the
5 air-saturation value, it's considered a supersaturated
6 condition where probably photosynthetic activity is
7 producing oxygen faster than it can naturally expel it
8 from the water, so it holds more than it can hold. And,
9 Roy, fill in the rest.
10
MR. SMOGOR: That's correct. When you're
11 calculating a daily mean or daily average, you measure at
12 various times of the day and you do your mathematical
13 averaging. At times waters can hold more oxygen than the
14 air is capable of holding, and that's called, like Toby
15 said, a supersaturated situation. If you use those high
16 values in your average, it's going to pull your daily
17 average up, and that's kind of a bias that we don't want,
18 so we're only going to measure dissolved oxygen and count
19 the highest amounts of dissolved oxygen as the amount
20 that the water can hold in equivalent pressure with the
21 air above the water. So at times water does hold more
22 than that, but we're not going to let that enter into the
23 calculation of the daily average.
24
MR. FREVERT: So if the saturation level at
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1 a particular condition is 9 milligrams per liter and you
2 measure 11 milligrams per liter, the number you're going
3 to use to calculate your daily average is the 9, not the
4 11?
5
MR. SMOGOR: Yes.
6
MR. ETTINGER: And as I understand it, the
7 saturation number varies in some regular way with the
8 temperature of the water; is that correct?
9
MR. SMOGOR: Yes, yes. And warmer water can
10 hold less oxygen, but at times it does get
11 supersaturated.
12
MR. ETTINGER: So again, for purposes of
13 this calculation, you would need to know the water
14 temperature in connection with your DO measurements so
15 that you can calculate the saturation level.
16
MR. SMOGOR: Yes.
17
MR. ETTINGER: How -- Is it anticipated that
18 this new standard will be used in writing permits?
19
MR. FREVERT: That question was asked by
20 IAWA in their written questions and we have answers on
21 the record in the attachment, but the general answer is
22 not in the typical application. There still are
23 provisions in our regulation for small facilities to
24 issue what's called a lagoon exemption where you can
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1 relax the technology-based limits applicable to that
2 source if it's demonstrated that it will not result in an
3 exceedance of the dissolved oxygen standard, so in that
4 context, if we're applying a lagoon exemption concept in
5 the regulations and these recommendations get adopted, we
6 would modify the end points we're doing that analysis
7 against, but the larger plants in the state and the
8 routine application in Illinois is the technology-based
9 standards established in the board regulations drive the
10 permit until and unless some further analysis like a
11 total maximum daily load is adopted and enacted and that
12 becomes the basis for any additional permit requirements.
13
MR. ETTINGER: I think I got that, but
14 essentially what you're saying is you're going to go on
15 using your technology-based limits to write most of the
16 permit --
17
MR. FREVERT: Yes, sir.
18
MR. ETTINGER: -- permit numbers in the
19 state.
20
MR. FREVERT: (Nods head up and down.)
21
MR. ETTINGER: And we're not going to use
22 any dissolved oxygen modeling or other modeling to
23 determine those numbers.
24
MR. FREVERT: I didn't say we wouldn't, but
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1 in routine program activities we're going to rely on the
2 existing approach. Periodically there is the need to
3 look at something and there may be a local circumstance
4 that both warrants it and has the information to do it in
5 a meaningful fashion, but it will not be routine
6 business.
7
MR. RAO: Just a follow-up. So,
8 Mr. Frevert, do you believe that TMDL program would be
9 one of the main driving forces for implementing DO
10 standards?
11
MR. FREVERT: It's possible in the future,
12 but I don't think it will in the next 12 to 24 months,
13 no. That's just the state we are at developing the
14 program and understanding the dynamics and the science
15 such that we can meaningfully and accurately fine tune
16 discharge limitations that closely. There are many, many
17 influences on dissolved oxygen over and above permitted
18 point sources, and to pretend that we can dial the
19 dissolved oxygen right into where we want it by tweaking
20 those permits, in my opinion, the science isn't there yet
21 and we're naive if we think it is.
22
MR. RAO: And do you think the nutrient
23 criteria which you guys are developing would also play
24 into the limitation of DO standards?
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1
MR. FREVERT: Certainly one of the main
2 benefits everybody expects out of nutrient reduction in
3 the future is less algal activity in those systems that
4 are -- experience significant enough algal activity to
5 have larger than desirable daily swings in dissolved
6 oxygen, so I'm not sure we'll ever be able to show
7 engineering equations and calculations on how nutrients
8 will affect DO. The understanding and the expectation is
9 if we get significant nutrient reductions in our streams,
10 we will see better oxygen profiles and we will see
11 slightly different tints to the green color.
12
MR. RAO: Thank you.
13
MR. ETTINGER: I just had one more, although
14 it -- I think it relates to the other. Are we expecting
15 we will use the standard in identifying impaired waters?
16
MR. FREVERT: Yeah. That's probably its
17 primary function in the foreseeable future, the next few
18 years, is how we determine assessments of attainment or
19 non-attainment, and I think the standard is also going to
20 be a significant impetus and help in our moving in the
21 direction of better technology, more automated monitoring
22 and better monitoring data.
23
MR. ETTINGER: Okay. And for these waters
24 that we talked about, backwaters, sloughs, some lakes
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1 that are also characterized as backwaters and sloughs,
2 we're going to primarily be using biological criteria or
3 biocriteria to identify impairments.
4
MR. FREVERT: I think we'll be looking at
5 the full resource, and we will -- in those places when we
6 study them, we will certainly be looking at the biology,
7 but any time we look at the biology, we also monitor the
8 chemistry, and we will be recording temperatures and
9 oxygen concentrations. Beyond that, we've got a specific
10 initiative now where we're specifically looking at
11 wetlands and how to monitor wetlands and how to measure
12 the health and vigor of wetlands, and some of the water
13 chemistry in the wetlands is going to be important too,
14 and as time goes on, we'll need to have water quality
15 standards unique for wetlands. The assumption that the
16 general use standards designed around primarily streams
17 and perhaps lakes is applicable to wetlands we know is
18 not correct, but until we've got something better, that's
19 what the law is.
20
MR. ETTINGER: Thank you.
21
HEARING OFFICER MCGILL: Thank you. Why
22 don't we go off the record for a moment.
23
(Brief recess taken.)
24
HEARING OFFICER MCGILL: Why don't we go
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1 back on the record. The Board had a couple of questions
2 very closely related to the line of questioning
3 Mr. Ettinger just concluded, so I think at this point it
4 may make sense for the continuity of the transcript to
5 pose those questions and then break for lunch, and when
6 we come back, we would begin with IAWA's questions. It's
7 about 12:15 now, so that would keep us right on schedule,
8 although I note that Mr. Frevert has left.
9
MR. ETTINGER: Probably the best time to
10 avoid the Board's questions.
11
HEARING OFFICER MCGILL: I'll go ahead and I
12 had a couple that I'll pose, and if you want to wait for
13 Mr. Frevert's return, we can do that. Under the proposed
14 Section 302.206(a), the narrative standard, in the second
15 sentence, do the words, quote, "below the thermocline,"
16 end quote, modify only the words lakes and reservoirs as
17 used in that sentence? Is that the intent?
18
MR. SMOGOR: Yes.
19
HEARING OFFICER MCGILL: Thank you.
20
MR. RAO: As a follow-up, in response to
21 Mr. Ettinger's question about whether this narrative
22 standard applies only in lakes and reservoirs or also in
23 streams, you responded saying that it primarily, you
24 know, applied to lakes and reservoirs, so it -- and it
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1 may apply to streams also, so are you looking at lakes
2 and reservoirs more broadly in terms of how you look at a
3 water body as to whether it's a lake or a stream?
4
MR. SMOGOR: I guess I'm not quite
5 understanding. I'm sorry.
6
MR. RAO: I'm trying to clarify what you
7 mean by lakes and reservoirs. Is there, like, a
8 definition or it's fairly broad the way you look at those
9 terms?
10
MR. FREVERT: I'll -- In my perspective,
11 we're trying to identify those water bodies that are
12 amenable to stratification, so it's a generic term.
13 Lakes and reservoirs are sort of a common terminology,
14 but they're basically impoundments with physical
15 characteristics such that they're amenable to
16 stratification. I don't know whether it warrants a
17 specific definition in the regulations or the common
18 understanding, but, you know, we're open to whatever your
19 specific recommendations or ideas are.
20
MR. SMOGOR: Can I just make one comment?
21 Sorry to interrupt.
22
HEARING OFFICER MCGILL: Sure. No, go
23 ahead.
24
MR. SMOGOR: It is possible in some stream
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1 situations in the deeper, slower sections of streams
2 called pools where at times a stratification could be set
3 up under certain conditions, and so in those conditions,
4 you probably -- you don't necessarily expect below the
5 thermocline to be able to keep the oxygen levels that
6 above the thermocline would be able to attain, so even
7 though this was intended in this particular sentence,
8 backwaters and lakes and reservoirs below the
9 thermocline, that phrase "below the thermocline" was
10 intended primarily for lakes and reservoirs. In reality,
11 there's a possibility of thermal stratification setting
12 up in other types of waters, including pools of certain
13 streams under certain conditions. Where that leaves us,
14 I don't know.
15
MR. RAO: Yeah. I was not suggesting that
16 you define lakes and reservoirs. I just want to make
17 sure what you propose, you know, it works as you intended
18 the provision to work.
19
MS. WILLIAMS: I think we need to look at
20 that and we might recommend some tweaking in later
21 comments or something like that. That's something we
22 hadn't thought about in our --
23
MR. FREVERT: Well, I'll just offer my
24 opinion. It was not my intent that pools in normal river
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1 systems be exempt from the standard. There may be some
2 unique situation where there's some stratification, but
3 it's a very rare thing, and I would not think that would
4 warrant us creating that confusion in the standard.
5
MR. RAO: And looking at it as an engineer,
6 I don't think it poses any problems, but an attorney may
7 read it differently.
8
HEARING OFFICER MCGILL: When attorneys hear
9 words like "primarily lakes and reservoirs," we go crazy,
10 so that's why with the words "below the thermocline"
11 there in the proposed language coming where it does, I
12 wasn't clear on what you intended to modify, whether it
13 was just lakes and reservoirs or that entire list of
14 water bodies, but Counsel's indicated you're going to
15 take a look at that and perhaps tweak that language. And
16 related question, just so I'm clear, again in 302.206(a),
17 for, quote, "quiescent and isolated sectors," end quote,
18 would no numeric dissolved oxygen standard apply?
19
MR. FREVERT: That's the intent. We do not
20 know what would be a scientifically justifiable numeric
21 standard, but we could tell by the ecological functions
22 that take place in those areas what the needs are and we
23 could derive numerical values based on that. If there's
24 a certain makeup of fish and we know their oxygen needs,
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1 we could do that, but that's going to vary from system to
2 system and resource to resource. Not all quiescent water
3 bodies behave like other quiescent water bodies.
4
HEARING OFFICER MCGILL: But if it is a
5 quiescent water body, I take it that it would be subject
6 to the narrative standard but not the numeric standards.
7
MR. FREVERT: We're trying to have a
8 backstop there, so just the fact that a resource is so
9 atypical of streams and lakes, where the data came from
10 that drove the numeric standards have no meaning. We
11 still know there needs to be oxygen there because there
12 are functions -- both biological functions and physical
13 and aesthetic functions that require some minimum level
14 of oxygen.
15
HEARING OFFICER MCGILL: Thank you.
16
MR. RAO: And as a matter of clarification,
17 those two terms, quiescent and isolated sectors, they are
18 not part of the main body of the river; am I right?
19
MR. FREVERT: That's correct, yeah.
20 That's -- It's an attempt to give some concept and
21 explanation. The two sentences are intended to work
22 together. By the way, I have no pride of authorship. I
23 want to get the concept across to you. If you feel the
24 need to tweak the words, tweak the words.
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1
HEARING OFFICER MCGILL: Okay. At this
2 point, why don't we break for lunch. We'll go off the
3 record. I've got about 12:22. Why don't we -- Since
4 we're wrapping up a little early, let's try to start at
5 1:30 for the afternoon portion. Thanks.
6
(Lunch recess taken.)
7
HEARING OFFICER MCGILL: We were continuing
8 with questions for the witnesses of the Agency and DNR,
9 and I'll turn it over to Mr. Harsch, counsel for the
10 IAWA.
11
MR. HARSCH: Thank you very much. Roy
12 Harsch on behalf of IAWA. The -- In Mr. Frevert's
13 testimony, in the second paragraph it says IEPA and IDNR
14 staff reviewed and analyzed general use water quality
15 data to determine what waters warrant a dissolved oxygen
16 standard incrementally higher than that of the base level
17 deemed generally protective of most general use waters.
18 Toby, what general use water data were you referring to?
19
MR. FREVERT: That's a good question.
20 Primary data we relied on was biological data. Beyond
21 that, the staff's knowledge of the water chemistry and DO
22 information was used a great deal in the early aspects of
23 our analysis and formulation of positions, but
24 ultimately, probably after the hearing in August of 2005
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1 we shifted our focus pretty much on the biological data,
2 and then once we used our methodology and came up with a
3 classification system and laid them out in classes, we
4 sent all that information out to our two agency field
5 staffs for a reality check and said, this is the way the
6 biological data suggests these things shake out, is there
7 any obvious thing we've missed or is there any place
8 where you know there's a routine recurring DO condition
9 or some other condition that suggests the classification
10 turned out incorrectly. So in that regard, water
11 chemistry was not nearly as important a factor in the
12 biology, but water chemistry was collectively utilized in
13 all those different processes.
14
MR. HARSCH: Mr. Cross, if I understand your
15 testimony, I'll paraphrase this and tell me if I'm right.
16 Essentially what you did is look at the Rankin data,
17 determined a sensitivity to dissolved oxygen levels that
18 you used rock bass as the middle point. Anything above
19 rock bass and above then became on the list for species
20 that you evaluated in Illinois for being present in
21 meaningful numbers. You may have included some
22 additional fish based on Illinois stuff that wasn't --
23 knowledge that wasn't in the Rankin thing, and it was
24 then strictly biology that you looked at whether those
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1 species were present or not and in what numbers that they
2 were present; is that right?
3
MR. CROSS: Yes, I would say that's a
4 general overview of the process that we went through,
5 correct.
6
MR. HARSCH: So some of the things that we
7 had talked about, you didn't look at the actual dissolved
8 oxygen values in the stream, correct?
9
MR. CROSS: Pardon me. Could you state that
10 again? I didn't --
11
MR. HARSCH: You didn't actually look at
12 dissolved oxygen water quality values in the streams
13 where you worked?
14
MR. CROSS: Not for purposes of identifying
15 the two tiers.
16
MR. HARSCH: And you didn't look at
17 temperature data.
18
MR. CROSS: That's correct.
19
MR. HARSCH: Nor did you look at any habitat
20 data.
21
MR. CROSS: That's correct.
22
MR. HARSCH: Thanks. Albert dwelled on this
23 at some length, but I guess being a lawyer, I can't help
24 but going back to the Attachment 1. Toby, when you were
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1 talking about in response to Albert's questions isolated
2 areas, it could be just -- could an area be just isolated
3 from the flow in the stream if -- for example, an
4 impounded river?
5
MR. FREVERT: Sure. If you look at
6 microhabitats within a system, it's not unusual to find a
7 little pocket here or there, a shelf under a tree stump
8 or something like that that it's right there at the
9 bank's edge but for some reason the dynamics are such
10 that the water doesn't circulate through there. There's
11 those kind of little microhabitats that exist all over
12 the place, but they don't constitute a significant
13 portion of the main water body. I guess my point is
14 those areas are not the proper place to gauge the overall
15 condition of the resource.
16
MR. HARSCH: When you're talking about the
17 natural ecological functions, you're not talking about in
18 the absence of mankind's development of roads, farms,
19 houses. We're not going back to the pre-pioneer days,
20 are we?
21
MR. FREVERT: I guess when I use the term
22 natural, I'm talking about nature as we understand it in
23 the 21st century with our life-styles and our land use
24 patterns and the way man has left its imprint on society.
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1
MR. HARSCH: If a stream has a dam
2 presently, you would be looking at then about what nature
3 would support above that dam in the water.
4
MR. FREVERT: Well, if society's made the
5 decision they're going to dam a water body to create an
6 impoundment, certain social judgments and values have
7 been made, and if it's a new system, we're going to make
8 sure that we design that new installation with all the
9 features to protect the environment to the maximum extent
10 possible for existing facilities. You impound a
11 free-flowing stream and there are consequences, both
12 positive and negative.
13
MR. HARSCH: But you would be looking at the
14 existing conditions behind that existing dam and --
15
MR. FREVERT: If you're talking -- I think
16 what you're getting at is assess the condition of the
17 water body.
18
MR. HARSCH: Correct.
19
MR. FREVERT: And if I'm going to assess the
20 condition of the water body and give my opinion of the
21 state of the overall water body, I want it to be
22 representative of the majority of the water body, not a
23 one-cubic-yard little subpart right at the bottom of the
24 dam, because I know it's going to behave differently than
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1 the overall resource.
2
MR. GARVEY: So my -- I'm a little
3 confused -- My name's Jim Garvey, by the way, with
4 Southern Illinois University. I'm a little confused by
5 the justification and the methodology by which you
6 selected the standards for the minima and the averages
7 for the enhanced waters. Can you explain that a little
8 bit more to me? Whoever wants to take it.
9
MR. CROSS: Yeah. I'm not sure exactly --
10 Are you talking about those threshold values for the
11 biological measures?
12
MR. GARVEY: No, I'm talking about say for
13 example in Attachment 1, the 6.25 milligrams per liter as
14 a daily mean average over seven days.
15
MR. CROSS: Right.
16
MR. GARVEY: When you look at the NCD, was
17 it my understanding that that's a hybrid between the pool
18 or the cold water and the warm water standards that were
19 set forth by the NCD?
20
MR. CROSS: That's correct.
21
MR. HARSCH: Can I jump in? On page 8 of
22 the technical support document, it's my understanding
23 that you say that you essentially average the national
24 criteria document's cold water numbers and the warm water
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1 numbers?
2
MR. CROSS: The levels that we picked based
3 on the NCD for level one waters was the median values
4 between the NCD cold water criteria and the NCD warm
5 water criteria.
6
MR. HARSCH: Okay. Then I have one -- I
7 thought that was what you had said earlier in your
8 testimony. If I look on table 1, page 9 --
9
HEARING OFFICER MCGILL: Could I just
10 clarify? We've made a couple different references here.
11 Attachment 1 is Exhibit 20. That's the proposed rule
12 language. And the technical support document is Exhibit
13 23 now. Mr. Harsch, are you referring to --
14
MR. HARSCH: To Exhibit 23, and it would be
15 table 1 of Exhibit 23, which is on page 9, and my
16 reference to page 8 again was Exhibit 23, page 8. There
17 you've listed the cold water, the warm water, and then
18 you've got the ones that you've come up with, right?
19
MR. CROSS: That's correct.
20
MR. HARSCH: I see that the ones you came up
21 with for enhanced waters are all averages except for the
22 daily minimum when early life stages are absent. The
23 USEPA cold water criteria is 4.0 and the warm water
24 criteria is 3.0.
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1
MR. CROSS: Yes, you're exactly right, and I
2 believe that that is a difference because of the
3 macroinvertebrate data, and I would refer that one to
4 IEPA for clarification of why that's 4.0.
5
MR. HARSCH: That's not an average, then.
6
MR. CROSS: That's right. It's not the
7 exact midpoint between the cold water and warm water
8 criteria, that's correct.
9
MR. SMOGOR: That's correct. We picked 4
10 because the 4 in the national criteria document was based
11 primarily on protecting macroinvertebrates, and we
12 believe that there's a meaningful amount of those same
13 macroinvertebrates that occur in some Illinois streams
14 that were part of this process.
15
MR. HARSCH: I'm sorry to jump into your
16 clarifying questions. Go ahead.
17
MR. GARVEY: Oh, okay. So you use cold
18 water as a reason for picking the enhanced streams. Do
19 you know what the temperatures are in those enhanced
20 streams? Do you have temperature data for any of those
21 enhanced streams, and are the temperatures in those
22 streams different inherently than other streams in the
23 state?
24
MR. CROSS: I wouldn't characterize this
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1 level one or what we call on table 1 of the TSD this
2 intermittent level as cool water. They're basically
3 those waters where we have predominantly warm water
4 species that have a higher need for DO than others.
5
MR. GARVEY: Okay. That answers that
6 question. Another question we had was associated with
7 the impairment data that you provided, and you've
8 provided us with a list, and I don't know if this is --
9 made it into the record or not.
10
MR. HARSCH: It's an attachment to the
11 letter that -- what's the exhibit number, the letter that
12 was sent Friday?
13
MS. DIERS: Exhibit 22.
14
HEARING OFFICER MCGILL: 22 is the response
15 to the IAWA letter.
16
MR. GARVEY: And you have a list in that
17 letter of stream segments and their -- basically whether
18 they attained -- or I guess in all these they did not
19 attain the aquatic life use designation and some of the
20 reasons for that, and there's a few of these enhanced
21 sites that are listed because dissolved oxygen is a
22 problem, but the question is is because it didn't meet
23 the current standard? Did they meet the 5 or the 6?
24 It's difficult to determine that. Are there specific
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1 data for these particular enhanced -- these streams that
2 are placed on the enhanced list? Can we actually look at
3 the data that were used to derive --
4
MR. SMOGOR: We can -- I can handle that.
5 We can provide you with the information that went into
6 those assessments, and every one of these assessments
7 that's represented is not based on the recommended
8 standard. It's based on the current standard if it were
9 used.
10
MR. FREVERT: There's one other thing I want
11 to point out in our biannual assessments and our rating
12 of stream conditions. Particularly if we identify a
13 stream and suggest it's impaired and we list causes and
14 sources, that's primary potential causes and sources and
15 it's a bit speculative. We're not concluding that DO is
16 the reason for that impairment. We're just saying that's
17 one of the things that should be looked at if we do a
18 further assessment.
19
MR. SMOGOR: I'd also like to point out that
20 the length of stream represented by these segments that
21 were determined as impaired and that DO was listed as a
22 cause based on the current standard comprises less than 3
23 percent of the stream that we've proposed for these
24 enhanced DO criteria.
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1
MR. HARSCH: 3 percent of the 8 percent or
2 3 --
3
MR. SMOGOR: 3 percent of all of the streams
4 that were selected for the enhanced protection -- level
5 one protection, less than 3 percent are represented on
6 this list.
7
MR. STREICHER: So this is 3 percent of the
8 segments that you're proposing to be listed?
9
HEARING OFFICER MCGILL: Mr. Streicher, I'm
10 sorry to interrupt you. Can you just identify yourself?
11
MR. STREICHER: I'm sorry. Dennis Streicher
12 with IAWA. So just to follow up on your answer there,
13 this list that we had in that attachment or that Exhibit
14 22 --
15
HEARING OFFICER MCGILL: Right, Exhibit 22.
16
MR. STREICHER: -- Exhibit 22 is only 3
17 percent of the segments --
18
MR. SMOGOR: It's less than -- These are
19 segments that overlapped with the segments as represented
20 on the middle map that were selected for the higher level
21 of DO. These are impaired segments that happened to
22 overlap with those, and the length of stream represented
23 by this list of impaired segments is less than 3 percent
24 of the total length of those streams selected for the
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1 enhanced level.
2
HEARING OFFICER MCGILL: I'm going to need
3 to interrupt you there. You're now referring to the --
4
MR. SMOGOR: I'm sorry.
5
HEARING OFFICER MCGILL: -- oversized
6 exhibit which we don't have yet as a hearing exhibit.
7
MR. YONKAUSKI: It's in the TSD.
8
MS. WILLIAMS: It's also on -- yeah.
9
HEARING OFFICER MCGILL: But there are
10 several -- just for those who will eventually read this
11 transcript, there are several oversized exhibits here
12 that are various maps, and I believe, Mr. Yonkauski, you
13 were just saying these maps that are in oversized form
14 now are from the technical support --
15
MR. YONKAUSKI: Two of the three.
16
HEARING OFFICER MCGILL: Two of the three
17 are from the technical support document, so, Counsel,
18 I'll leave it up to you if you -- to the extent we're
19 going to be referring to these maps, I'd like to get them
20 in as a hearing exhibit, or if you can't part with them,
21 then --
22
MR. SMOGOR: I could refer to figure 5.
23
HEARING OFFICER MCGILL: If you have other
24 ways of identifying or explaining your remarks, that's
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1 fine.
2
MR. SMOGOR: But the streams that I was
3 referring to on the poster are the same set of streams
4 that are highlighted in figure 5 of the technical
5 document.
6
HEARING OFFICER MCGILL: Of the technical
7 support document?
8
MR. SMOGOR: Yes.
9
HEARING OFFICER MCGILL: And that is Exhibit
10 23.
11
MR. SMOGOR: Exhibit 23.
12
HEARING OFFICER MCGILL: Thank you.
13
MR. SMOGOR: Sorry.
14
MR. HARSCH: Mr. Smogor, as a follow-up
15 question to that, then, do you know how many of the
16 segments that you've listed proposed for enhanced
17 dissolved oxygen level protection actually have had
18 dissolved oxygen measurements sampling done?
19
MR. SMOGOR: No, not offhand.
20
MR. HARSCH: Would it be a large percentage
21 or small percentage? 3 percent?
22
MR. SMOGOR: Because -- I can't -- No, I
23 don't know offhand. I don't have the information with
24 me.
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1
MR. GARVEY: That would be useful data to
2 have to assess --
3
MR. SMOGOR: We can provide that data if we
4 have it.
5
MR. GARVEY: In your response to
6 Mr. Streicher's request for data, you provided us with
7 some continuous monitoring data from some of the enhanced
8 candidate streams, if I understand correctly. Are there
9 any plans to collect more of those sorts of data in the
10 enhanced candidate streams?
11
MR. SMOGOR: I don't know. I think that's
12 probably a good idea.
13
MR. GARVEY: Yeah. A recommendation that I
14 would have is -- and I don't know. Do I need to be sworn
15 in about that?
16
HEARING OFFICER MCGILL: If you'd like to
17 give testimony, I'll swear you in.
18
MR. GARVEY: It's not testimony. It's
19 just -- It would be great if you guys could collect at
20 the same sites for this year under the flow conditions
21 that were there last year.
22
MR. FREVERT: If I could, I believe the
23 monitoring section manager works for me in the Agency,
24 and we're -- typically this time of year we're looking at
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1 our summer workload and where we need to be monitoring,
2 and we'd be happy to receive any recommendations you
3 have.
4
MR. GARVEY: Off the record, on the record?
5
MR. FREVERT: You can keep it off the record
6 if you want. If you feel there's some value to people to
7 put it on the record, that's all right. Again --
8
MR. GARVEY: Well, on the record, I think
9 IAWA -- if they disagree with me, then they can speak up
10 now, but I think that'd be easier.
11
MR. STREICHER: We agree.
12
MR. FREVERT: Okay. And again, we'd be
13 happy to do more monitoring if you can find us more
14 resources too.
15
MR. HARSCH: Your recommendation is that
16 they sample at the same locations this year that they
17 sampled last year during the low-flow and drought
18 conditions?
19
MR. GARVEY: Exactly, mimicking the very
20 same protocol that they used last year this year.
21
MR. FREVERT: So you're looking to get a
22 better understanding of annual climatic differences.
23
MR. GARVEY: I think that would be very
24 important.
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1
MR. FREVERT: We also recognize the
2 desirability in that.
3
MR. HARSCH: Would this be an appropriate
4 point where we go through the information that we'd like
5 from the Agency while we've got everybody up here?
6
HEARING OFFICER MCGILL: Absolutely. I just
7 have one question that was related to the -- your line of
8 questioning, if I could just throw that in before you
9 start your list of requested information, and that had to
10 do with arriving at the midpoint for these intermediate
11 waters, the midpoint between cold and warm waters. Are
12 you aware of any other state splitting the difference
13 like that to arrive at an intermediate numeric DO
14 standard?
15
MR. FREVERT: Off the top of my head, I
16 can't speak to most of the other states' DO standards,
17 but I do want to emphasize the area where we sort of look
18 for middle ground was in an average statistic, not an
19 instantaneous value. The absolute minimums are the 3 and
20 a half and 4. The 6.25 is for a longer term average, and
21 in that regard, we believe there's more statistical
22 significance to a smaller increment if you look at it
23 over an average period of time, and to just arbitrarily
24 pick one or the other we thought was less sound judgment
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1 than finding a middle ground, and an average figure will
2 let you explore the smaller middle ground levels, so
3 that's our logic.
4
MS. WILLIAMS: Matt Short has done some
5 looking into other states if you'd like him to tell you
6 what he can tell you.
7
MR. FREVERT: That's fine, but again, we
8 haven't done an exhaustive exploration. There may be six
9 or seven states that tend to be a little different. He
10 can speak to the extent he knows.
11
MR. SHORT: Matt Short with the Illinois
12 EPA. In terms of warm water, cool water, cold water,
13 most of the other states have specific cold water
14 standards for trout or salmonid species streams.
15 Missouri is the only state that -- surrounding state that
16 I saw that actually mentioned cool water species in their
17 standards, and they lump for dissolved oxygen warm water
18 and cool water as one unit. They have a 5 milligram per
19 liter minimum, which is similar to our current
20 instantaneous minimum, so it's -- they group those
21 together. They look at the cool water streams as a
22 temperature function, and whether or not they have
23 salmonids or not is -- determines whether -- which set of
24 standards get applied to them, so that's how they look at
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1 dissolved oxygen. And if you're interested, I can go
2 over some of the other state adjacent border stream water
3 quality standards for DO.
4
The state of Iowa, for shared waters on the
5 Mississippi River, Iowa has a 5 milligram per liter
6 16-hour average and a 5 milligram per liter
7 instantaneous. Missouri has a 5 milligram per liter
8 instantaneous. So essentially, right now the minimum
9 Mississippi River dissolved oxygen standard is the same
10 between the two states. On the Ohio River it's regulated
11 by ORSANCO, the Ohio River Sanitation Commission. They
12 have a 5 milligram per liter average for each day -- they
13 don't really describe how you determine that average --
14 and they have a 4 milligram per liter instantaneous
15 minimum. On the Wabash River, which we share with
16 Indiana, they also have a 5 milligram per liter daily
17 average -- again, no explanation as to how you calculate
18 that -- and a 4 milligram per liter instantaneous
19 minimum, and that's -- the other probably main state we
20 share waters with, then, is Wisconsin, and they have a 5
21 milligram per liter minimum for their waters, most of
22 their waters. They do have some variances that they
23 allow for wetlands and different types of waters.
24
MR. FREVERT: If I could ask, Matt, to
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1 follow that up a little.
2
MR. SHORT: Sure.
3
MR. FREVERT: How many of those states do
4 you know of have any kind of a reasonably comprehensive
5 reassessment of those standards within, say, the last
6 five or ten years, or are those standards they've had on
7 the books for some time?
8
MR. SHORT: For Missouri and Iowa, I know
9 those are standards that they have had on the books for
10 some time. I am on a workgroup with the Upper
11 Mississippi River Basin Association, which is the five
12 upper states on the Mississippi River, and I know that
13 their standards have not changed for a number of years.
14 I'm not sure about Indiana. I don't know if Roy is
15 familiar with ORSANCO's, the length of time their
16 standard has been on the books, but I think it's been a
17 substantial length of time.
18
HEARING OFFICER MCGILL: What are those five
19 states, just for the record, if you --
20
MR. SHORT: The five upper Mississippi River
21 states are Missouri, Iowa, Minnesota, Wisconsin and
22 Illinois.
23
HEARING OFFICER MCGILL: Thank you.
24
MR. RAO: I had a follow-up to Dr. Garvey's
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1 questions regarding DO data. Did the Agency or DNR
2 evaluate any available DO information for those streams
3 selected for enhanced protection at all?
4
MR. SMOGOR: Yes. Yes, we did.
5
MR. RAO: If so, did this evaluation involve
6 any correlation between DO levels and abundance of fish
7 in those streams?
8
MR. SMOGOR: Nothing formal, no.
9
MR. RAO: So did you do any kind of analysis
10 to see whether the data confirms, you know, Rankin's
11 finding or such evaluations from that?
12
MR. SMOGOR: No. I looked at -- What I did
13 do was I looked at the dissolved oxygen data for the most
14 recent ten years from grab samples in sites that occurred
15 close to the enhanced -- water selected for enhanced
16 protection or on those waters, on or near, and for those
17 sites I applied the EPA/DNR-recommended dissolved oxygen
18 daily minimum standards, and I looked at how many of
19 those sites were not meeting the recommended standard --
20 the DNR/IEPA-recommended standard for the last ten years
21 of data and found that largely, month by month, 90
22 percent in every month of the sites that occurred on
23 these waters or near these waters were meeting that
24 proposed or recommended standard.
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1
MR. RAO: Okay. So only 3 percent of those
2 enhanced waters didn't meet the standard based on your
3 review?
4
MR. SMOGOR: Actually, that was a different
5 analysis.
6
MR. RAO: Okay. How was it different?
7
MR. SMOGOR: They -- IAWA asked for several
8 pieces of information. The one piece that was referred
9 to earlier was they wanted to know currently what
10 segments of streams that Illinois EPA has listed as
11 impaired for aquatic life use. Of those segments that
12 overlap with the segments selected for the enhanced
13 protection, 3 percent of the length of the impaired
14 waters comprise the waters selected for enhanced
15 protection. I'm sorry. This is complicated.
16
MR. RAO: Yeah, it's --
17
MR. SMOGOR: The dissolved -- That didn't
18 have anything to do with looking at individual dissolved
19 oxygen measurements.
20
MR. RAO: Okay.
21
MR. SMOGOR: And then when I spoke to --
22 after that to you about dissolved oxygen measurements,
23 those were sites that happened to overlap with these
24 segments. That was something I did later, but I did
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1 provide -- and in our response that was filed as Exhibit
2 22 today, there are some results of that analysis where I
3 looked in each month over the last ten years of DO data.
4
MR. RAO: Okay. Thank you.
5
HEARING OFFICER MCGILL: One other follow-up
6 question on the -- page 8 of the technical support
7 document, or Exhibit 23. There's a reference to the
8 Agency simply selecting dissolved oxygen concentrations
9 halfway between the USEPA cold water and warm water
10 chronic levels as we've been discussing here. Is the --
11 Is there scientific literature that supports the notion
12 of splitting the difference between those two numbers to
13 arrive at an intermediate? I mean, it's -- I just
14 wondered if -- was that just sort of a common sense
15 approach or did you -- did your research reveal that this
16 has been recommended?
17
MR. SMOGOR: It was more of a common sense
18 approach, not having definitive places to cut it. We did
19 realize that there are certain species in Illinois that
20 need more protection than the warm water value but they
21 didn't quite need the protection of salmonids, trout and
22 salmon, and so realizing that they were somewhere in the
23 middle, it -- to us it was common sense to pick a middle
24 value.
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1
HEARING OFFICER MCGILL: Thank you. I'll
2 turn it over to Mr. Harsch again.
3
MR. HARSCH: I guess as a clarifying
4 question, or else I need to ask for it in a different
5 manner, how do you correlate that list of impaired
6 segments that you gave us on Friday, which is Exhibit 22,
7 with the list of proposed enhanced waters? It's not
8 just -- They're not the same segments. How do you
9 correlate them?
10
MR. SMOGOR: If there was some overlap, then
11 I called them correlated.
12
MR. FREVERT: If I can help here a little
13 bit, there's two different analyses you're talking about.
14 One is the impairment decision, which is based on
15 biological indices, like IBIs and MBIs. The other is an
16 analysis that identifies communities composed of a
17 significant percentage of oxygen-sensitive species. So
18 there are entirely different fundamental premises going
19 into those analyses. I'm not sure why they should
20 correlate.
21
MR. HARSCH: Toby, the question is, segment
22 ILBMC2, Sugar Creek, the first page, how does that
23 correlate -- that segment -- which I understand is the
24 segment name or number, right? How does that correlate
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1 with Sugar Creek listed -- The segments of Sugar Creek or
2 that portion of Sugar Creek, how do I compare this list
3 versus the segments that are listed for these waters?
4
MR. SMOGOR: That -- It -- To see how they
5 compare, you would need the Geographic Information
6 Systems layers and you'd have to put them up on a screen
7 like I did and see that here's the first layer of streams
8 selected for enhanced protection, here's the other layer
9 of streams that are on our impaired waters list, and I
10 have to see where they physically overlap.
11
MR. HARSCH: So I can't compare this list
12 versus the other list without going through this computer
13 shapefile thing?
14
MR. SMOGOR: It would be very difficult.
15
MS. WILLIAMS: And I think it's worth, you
16 know, explaining to the Board, we -- they asked for that
17 information, so we provided it. That wasn't an --
18
MR. HARSCH: I understand. And we can't --
19 at least in my brain, I can't figure out how to use this
20 versus your list, and you've just told me I can't do it
21 without a computer file.
22
MR. FREVERT: But both lists are anchored in
23 a common stream code. Each stream section has a unique
24 code, and so any particular stream segment is going to be
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1 identified by the same code if you're on both lists. It
2 would be pretty meticulous, but that is a way to do it.
3
HEARING OFFICER MCGILL: I just have -- Just
4 to clarify, Exhibit 21 is the Appendix D, proposed stream
5 segments, and the impaired list I believe that Mr. Harsch
6 is referring to is in Exhibit 22. Does the -- There's
7 just reference to a computer overlay map where you're
8 comparing the impaired versus the proposed enhanced
9 segments. Do you have that in CD form that could be put
10 into the record and available to the public? Right now,
11 as I understand it, the enhanced segments are part of the
12 CD, which is Exhibit 24 today, which was part of the
13 prefiled testimony, but at this point am I correct in
14 concluding we do not have a computer version of the
15 impaired segments that's in Exhibit 22?
16
MR. SMOGOR: That's correct. It was
17 provided based on request as just a list in a table of
18 impaired segments, and kind of behind the scenes, IAWA
19 asked for can you give us a list of waters that overlap
20 or intersect with the selected set of waters for enhanced
21 protection, and I provided that list over last week, but
22 I did not provide them the Geographic Information System
23 information that was used to generate that list because
24 they have been unable to open that type of file. Is
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1 that --
2
HEARING OFFICER MCGILL: Is that something
3 that you could provide to the Board? Is it any different
4 than using the CD that you included in your prefiled
5 testimony?
6
MR. SMOGOR: Yes, because the CD, if I --
7 Joel, maybe you can speak to this. The CD is -- you
8 can't add things to it; is that correct?
9
MR. CROSS: Yeah, that's correct. The CD
10 includes the list of waters that are covered by level
11 one, those standards as we have jointly recommended, as
12 well as additional referencing information to help orient
13 oneself to where those segments are, things like major
14 municipalities, all the county roads, bridges, everything
15 like that, so if you wanted to orient yourself, where are
16 those segments, you could find it a little more easily.
17 We also on that CD provided the free software from the
18 computer company that designs this software to be able to
19 read and view those files on the CD, so I think that what
20 we have in terms of the coverage that Roy is talking
21 about in terms of which waters are impaired, we would
22 need to probably take that coverage and incorporate it
23 into our GIS system, and then we could certainly provide
24 that on a CD, but it would have to be a new CD, yeah.
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1
MR. HARSCH: One of the things that
2 Dr. Garvey was just about to ask for.
3
MR. GARVEY: Yes. May we have that, please?
4
MR. HARSCH: He can open it. I can't.
5
MS. WILLIAMS: Oh, you mean just a new one
6 of the one that we --
7
MR. HARSCH: We just specifically want --
8
MR. GARVEY: Well, you can send us GIS
9 shapefiles, which you already have, and I can bring it
10 into --
11
MR. SMOGOR: That would probably be the
12 easiest way to do it.
13
MR. GARVEY: The easiest way. You don't
14 have to go through all the process of doing that. We
15 could take a look at it that way, so --
16
MR. RAO: I think the same thing would work
17 for the Board also since we have the software.
18
MR. SMOGOR: Okay.
19
MS. WILLIAMS: The Board can read the GIS
20 shapefiles as well?
21
MR. RAO: I mean, I have the reader, so --
22
MR. CROSS: Yeah, but to read Roy's files,
23 you may need more than that ArcReader; is that correct,
24 Roy? You would actually need GIS software to run that?
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1
MR. SMOGOR: I'm sorry. I don't know the
2 capabilities of ArcReader.
3
MR. CROSS: The answer's yes, I think.
4
MR. SMOGOR: Okay. Sorry.
5
MR. RAO: If that is the case, then we can
6 just print out the maps in color and file it with the
7 Board.
8
MR. CROSS: We can accommodate the Board in
9 that manner. That would be fine, but --
10
HEARING OFFICER MCGILL: If that will
11 meaningfully convey the information, then that's -- hard
12 copy's fine too.
13
MR. CROSS: Yeah, we can get it to you in
14 whatever format you need, whether it's hard copy or -- it
15 wouldn't be all that complicated to burn another CD for
16 your purposes. That would be fine.
17
HEARING OFFICER MCGILL: That would be
18 excellent.
19
MR. CROSS: It's easy, so we can do that.
20
HEARING OFFICER MCGILL: Thank you.
21
MR. STREICHER: If I could ask, I think this
22 would be to Roy also, but in that letter IAWA made that
23 request, which is now Exhibit 22, there was a request for
24 POTW dischargers to those listed segments. I think in
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1 your response you had one tab on an Excel file that
2 indicated point dischargers within 500 feet and 1,000
3 feet. Are -- Does that include point dischargers that
4 are to the segments, specifically into the segment, or
5 just above the segment by 1,000 or 500 feet?
6
MR. SMOGOR: We don't -- Unfortunately, in
7 the GIS shapefile that has that information, we don't
8 have a column of information that says this discharger
9 discharges to this water body. We didn't have that
10 information at hand, so what was done was -- very
11 quickly, was if a discharge point is within 1,000 feet of
12 a water selected for enhanced DO protection, it was
13 selected for the 1,000 -- within 1,000 feet list. If a
14 discharge point is within 500 feet of a water that was
15 selected for enhanced DO protection, that was selected as
16 part of the within 500 feet list, and that's as good as
17 we could get on the short notice.
18
MR. STREICHER: So that would also -- that
19 would duplicate, then, so if you're within 1,000 feet,
20 you're also within 500 feet, so actually --
21
MR. SMOGOR: Right. That should be
22 inclusive.
23
MR. STREICHER: It would be duplicate.
24 Okay.
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1
MR. HARSCH: If you searched your program
2 for one foot, would that tell you which we're discharging
3 to?
4
MR. SMOGOR: I don't know. I don't know.
5 Ann, can you speak to that process, or --
6
MS. HOLTROP: I'm Ann Holtrop with the
7 Illinois Department of Natural Resources. We played
8 around with some different distances from the stream, and
9 it was difficult to do that because there is variability
10 in how GIS data layers fall potentially to where they are
11 on the ground, so things don't line up exactly, and so
12 very few of the points actually fall on a stream line,
13 and so there isn't a one-to-one correlation there, so you
14 need some sort of buffer, and it also depends where you
15 call the point on the ground; is it at the outfall, is it
16 in an office, I mean, do they really document the
17 latitude/longitude where it hits the stream, and so
18 there -- you need some kind of buffer. I think if you
19 had a one foot you wouldn't get any to line up, so you
20 need some kind of reasonable distance from the stream
21 where you think that that point is actually on that
22 stream.
23
MR. GARVEY: And, yeah, I guess -- do you
24 mind if I interrupt?
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1
MR. HARSCH: No, go ahead. I interrupt you
2 all the time. You might as well interrupt me.
3
MR. GARVEY: So explain a little bit more
4 what a buffer means for the group around a GIS point.
5
MS. HOLTROP: So you have your point where
6 you're located in the GIS screen or on the computer, and
7 the buffer essentially means a distance around that
8 point. It's a uniform distance around that point, and if
9 you choose something like 500 feet, 500 feet away from
10 that point in any given direction, did you hit that
11 stream line that was selected for enhanced DO protection
12 in this case, so you could be slightly upstream of that
13 segment, slightly to the right, slightly to the left,
14 slightly downstream. We don't know for sure, but it's
15 kind of the closest segment to that point.
16
MR. GARVEY: If you had to give us the
17 average buffer it would take to make that point hit the
18 stream, can you -- on the order of magnitude, is it 10
19 feet, 100 feet, 500 feet? Can you answer that question?
20
MS. HOLTROP: I can't answer that question.
21 I didn't look that closely at the data and I was very
22 unsure of how those points were generated, and that's why
23 Roy sent with that the metadata for how that point
24 shapefile was generated, because that's really what we
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1 need to know, is how those points were located on the
2 landscape, and until we have a better idea of that, we
3 can't give and you distance, so 500 and 1,000 was -- feet
4 were my best guesses at an appropriate distance given the
5 variability and the spacial data layers.
6
MR. HARSCH: What we have been trying to
7 find out is the -- which segments that are being
8 designated for enhanced protection have -- primarily
9 IAWA's interest is in municipal point source discharges.
10 I think the regulated community probably would like to
11 know about industrial point source discharges -- in other
12 words, who discharges to each of the segments -- so we
13 can figure out is there really a discharge potential
14 related issue by designating a given specific stream
15 segment as an enhanced water segment or not. That was
16 basically the question and information we've been trying
17 to get for some period of time.
18
MR. STREICHER: That's where we're trying to
19 go, yeah.
20
MR. SMOGOR: And --
21
MR. HARSCH: And then the concept was if you
22 didn't discharge directly to that segment but your
23 discharge was upstream, if you were a municipality and
24 you discharged upstream of that enhanced segment, how
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1 close would you have to discharge, in the Agency's
2 opinion, for your -- you know, if there's a problem in
3 that enhanced segment, is the Agency going to say that
4 upstream municipal discharge is likely to have an impact
5 or not have an impact? That's the type of things we were
6 hoping to get and would like to get. Did I say it right?
7
MR. STREICHER: Yes.
8
MR. HARSCH: So that's one type of
9 information that we'd like. What else?
10
HEARING OFFICER MCGILL: Mr. --
11
MR. FREVERT: While you're thinking about
12 the next thing, let me just give you a quick response and
13 see if that could help us at least think along the same
14 lines. The DO standard that we've selected for any
15 particular stream, whether it be tier one or tier two, is
16 based on our understanding of the relative sensitivity of
17 the biological community that we believe is there. That
18 in and of itself is not going to have much, if any,
19 impact at all on permit limitations, so we would do a
20 normal permitting. If indeed the stream is impaired,
21 whether it be in a level one or level two classification,
22 and a point source is a significant contributing factor
23 to it, I'm not sure the answer to that is immediately go
24 and try to tweak the permit. It's try to figure out
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1 what's going on and to what extent that treatment
2 facility is really not adequately controlling their
3 waste, and we're not going to know that, and I don't
4 believe whether the stream falls in tier one or tier two
5 is going to make any difference in the way we treat that
6 situation.
7
MR. HARSCH: I don't want to sound flippant
8 in response. What we were hoping to find out was the
9 magnitude of potential impacts on point sources that
10 would -- are there -- who are the point source
11 dischargers that discharge to these enhanced segments so
12 we know if we really have an issue or not. If we don't
13 have an issue, maybe we'll put that one aside and move on
14 to where we do have significant issues and live to fight
15 that battle another day.
16
MR. FREVERT: I'll be happy to accommodate
17 you there. I'm just saying my initial --
18
MR. HARSCH: I was hoping I could get a --
19
MR. FREVERT: -- reaction is to maybe give
20 you a better comfort level of whether it's level one or
21 level two. Unless we know some specific thing, it should
22 be -- it shouldn't affect the way the point source is
23 treated at all.
24
MR. HARSCH: What else do you have?
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1
MR. GARVEY: We want to make sure that
2 CD-ROM of the data that you sent in Excel format to
3 Dennis I think Friday is -- was that formally put into
4 the record?
5
MR. STREICHER: Yes. It's Exhibit 22.
6
HEARING OFFICER MCGILL: That's Exhibit 22.
7
MR. GARVEY: Which is the 2005 continuous
8 dissolved oxygen data? Is that quality controlled? Have
9 you done the quality control on that? I mean, I
10 guess the question --
11
MS. DIERS: I'm sorry. I'm going to
12 interrupt for just a second. Dr. Garvey, I know you're
13 not an attorney, but can you try to just ask one question
14 at a time? It's hard for us to follow in the record --
15
MR. GARVEY: Yeah. Unfortunately, it's the
16 way I think.
17
MS. DIERS: I know, and I'm sorry and I
18 apologize, but since you're on the record, we do want one
19 question at a time so everybody can react to that
20 question.
21
MR. GARVEY: Okay. So anyway, that's on the
22 record, right, that CD?
23
MR. SHORT: In terms of is the data quality
24 controlled, was it checked?
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1
MR. GARVEY: Yes.
2
MR. SHORT: I mean, we've -- part of this
3 continuous monitoring effort for the last two years has
4 been to work on techniques and methods for deploying
5 continuous monitoring, and so the data we've been
6 collecting, we do calibration at the beginning and the
7 end of deploying the samplers. We take readings with
8 other meters when they're deployed and -- to compare
9 with. The data last year, we put out multiple devices at
10 a single stretch of river to look at different habitat
11 issues. The data we sent you in terms of that is just
12 that raw data that we collected. It's quality control
13 checked in terms of it's meeting our requirements for
14 when we deployed the meters and that type of thing, so
15 beyond that, that's -- it's just basically the raw data
16 we collected.
17
MR. GARVEY: Okay. What's on that CD-ROM
18 specifically?
19
MR. SHORT: In terms of data?
20
MR. GARVEY: What -- Yeah. What kind of
21 data are on that CD-ROM specifically?
22
MR. SMOGOR: What --
23
MR. GARVEY: Where do they derive from?
24
HEARING OFFICER MCGILL: I got to --
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1
MR. SMOGOR: I'm sorry.
2
HEARING OFFICER MCGILL: I got to echo
3 Counsel's request. Just one question at a time.
4
MR. GARVEY: Sure.
5
HEARING OFFICER MCGILL: Thanks.
6
MR. GARVEY: So where do they derive? From
7 where do they derive?
8
MR. SMOGOR: The CD-ROM, Exhibit 22, the CD,
9 Exhibit 22, is the same set of data that was sent by
10 e-mail Friday, last Friday. It includes an Excel file
11 that has ten years' worth of dissolved oxygen grab sample
12 observation. That same file also includes continuous
13 monitoring dissolved oxygen data from the years 2004 and
14 2005 at selected sites. Those were three-day -- on
15 average three-day employments of continuous monitoring at
16 a site. And then another Excel file on that CD is the
17 list of NPDES -- I'm sorry. That list is not on the CD.
18 That list was sent in the e-mail, but it only occurs as
19 hard copy in Exhibit 22. Thank you. Does that --
20
MR. GARVEY: Yeah. What do you intend to do
21 with those data?
22
MR. SMOGOR: They were put together based on
23 your request. I don't have any plans for them right now
24 off the top of my head.
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1
MR. GARVEY: Okay. So you collected the
2 data but you don't plan on analyzing it further in terms
3 of looking at it?
4
MR. SMOGOR: I don't have any plans right
5 off the top of my head, no. It was part -- In part it
6 was to see if we could employ continuous monitoring
7 throughout the state. Obviously it will contribute to
8 our existing databases and will be used in that capacity
9 as we've always used the dissolved oxygen in our existing
10 databases.
11
MR. FREVERT: I'll just echo, there are
12 multiple purposes for that, and as Matt said earlier, we
13 recognize the need to get into a more heavy
14 technology-oriented era, so number one objective was to
15 develop methodologies, expertise, capabilities to rely
16 on, and the other is to the extent that we produce data
17 even in the early stages, if it's credible, valuable and
18 useful, we'll use that in our data set with all the other
19 data.
20
MR. HARSCH: I mean, in that -- the letter
21 that IAWA sent to the Agency, we also asked for any data
22 from IDNR or the C-FAR data, and your response, 22, said
23 you don't have the IDNR data and the C-FAR data is not
24 readily available.
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1
MR. GARVEY: My understanding is -- and
2 correct me if I'm wrong -- did I do it again? Was that a
3 question?
4
MR. HARSCH: So we would like -- IDNR --
5 Toby, you said you didn't have it. Does IDNR have DO
6 data?
7
MR. YONKAUSKI: The Department of Natural
8 Resources scientific survey divisions do have some DO
9 data. My understanding of the C-FAR data specifically is
10 that it is still being collected, hasn't been QAed,
11 hasn't been -- gone through the typical university
12 scientific survey peer review to make sure that it's in a
13 form and format that can be acceptable to be useful. I
14 will of course confirm that with the chiefs of the
15 respective surveys to make sure that I'm accurate and get
16 a written response of some sort back to you.
17
MR. HARSCH: Go ahead.
18
MR. GARVEY: Is it my understanding that the
19 C-FAR data are an attempt to -- well, one of the many
20 uses of the data are to try and determine whether there's
21 a relationship between habitat, quality and
22 characteristics of water bodies within the state,
23 particularly streams, and dissolved oxygen
24 concentrations?
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1
MR. YONKAUSKI: You're asking if that's your
2 understanding?
3
MR. GARVEY: Well, is that true or not? Is
4 that one of the reasons -- Is the understanding correct?
5
MR. CROSS: The C-FAR data was collected as
6 research efforts to help support the development of
7 nutrient standards in the state, and that's its primary
8 purpose as to why it's been collected and undertaken.
9
MR. GARVEY: But they will be able to look
10 at dissolved oxygen habitat relationships.
11
MR. CROSS: I believe that's correct, but as
12 Stan Yonkauski just mentioned, they're still in the
13 process of collecting that data, so its availability is
14 such that it hasn't gone to any of those reviews and
15 would be made available.
16
MR. SHORT: Just to clarify, only -- not all
17 of the studies will look at habitats. Some of them are
18 looking at habitat and other factors; some of them are
19 looking more specifically just at nutrient cycling and
20 dissolved oxygen relationships. So there's a number of
21 different independent studies that are part of the
22 C-FAR -- which is the Council for Food and Agricultural
23 Research -- studies that are being conducted right now,
24 and they've been going on for approximately two years,
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1 so --
2
MR. GARVEY: Do we know when a report will
3 be due for that?
4
MR. YONKAUSKI: Potentially, perhaps as far
5 out as a year from now.
6
MR. FREVERT: Just a little further
7 clarification. That C-FAR research or nutrient research,
8 some of the wetlands work we're doing, some of our own
9 evolution and our monitoring programs, everybody here at
10 the table recognizes we're going to know more about
11 dissolved oxygen five or ten years from now than we do
12 now, and we fully expect that the dissolved oxygen
13 standard is warranting of additional review as time and
14 knowledge moves forward. Our position is that we know
15 enough now to know we can make a significant incremental
16 improvement over the standard we placed on the books 25
17 years ago. Not that it's perfect, but that it is a major
18 step forward, and we intend to follow that up and we
19 assume there'll be future steps. I want to caution
20 everybody to wait for the next study because there's
21 always going to be a next study.
22
HEARING OFFICER MCGILL: We're going to go
23 off the record for a minute and just take a five-minute
24 break.
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1
(Brief recess taken.)
2
HEARING OFFICER MCGILL: Okay. Let's go
3 back on the record. We are continuing with questions and
4 information requests from the Agency and DNR.
5 Mr. Harsch, you want to -- do you have anything further?
6
MR. HARSCH: No. We're pretty much -- we
7 have explained what it is that we need to be in a
8 position to analyze where we are, and off the record we
9 had some discussions during the break that Jim and Joel
10 and Ann could get together on some of the computer stuff,
11 and the question then is is that going to be enough or
12 are we -- what are we going to need from IEPA on the
13 NPDES dischargers, so we're trying to get a handle on how
14 long it would take to get it from the Agency.
15
MR. ETTINGER: Are we off the record or on
16 the record?
17
HEARING OFFICER MCGILL: We're on the
18 record.
19
MR. ETTINGER: Could we go off the record?
20
HEARING OFFICER MCGILL: Sure.
21
(Discussion held off the record.)
22
HEARING OFFICER MCGILL: So, Mr. Harsch,
23 does that conclude your questioning?
24
MR. HARSCH: Yes, it does.
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1
HEARING OFFICER MCGILL: We had just a
2 couple follow-up questions. Okay. I think we just have
3 one follow-up question for the witnesses of the Agency
4 and the DNR.
5
MR. RAO: This is just a clarification. On
6 page 12 of the technical support document you talk about
7 how you came up with the list of sensitive fish, but we
8 are just looking at the numbers just to match. You said
9 there were, like, thirty-five Illinois candidate species
10 identified in the Rankin study and eleven were not
11 selected. That made twenty-four, and then you -- I think
12 you added six more, you know, from Illinois fish species,
13 so there were thirty selected but the list that you
14 provided in table 2 has thirty-one, so I was just
15 wondering where the other one --
16
MR. CROSS: Yeah, and I think DNR will
17 attempt to answer that question for you. We basically --
18 To kind of generalize what we did is we started with the
19 Rankin report using rock bass as a benchmark species, and
20 then from there Illinois species were added and
21 subtracted to that Ohio list, and I think at this point
22 I'm going to call on Scott Stuewe to provide more details
23 and clarification for your question.
24
MR. SMOGOR: Can I interrupt? Are you just
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1 asking for the math to work out? That's what I thought.
2 I think that first sentence, of 35 Illinois candidate
3 species indicated in Rankin as equally or more sensitive
4 than rock bass, that didn't include the rock bass, so
5 rock bass is your 31st species. Is that what you were
6 asking?
7
MR. RAO: Yeah.
8
MR. SMOGOR: Okay. Sorry, Joel.
9
MR. RAO: You didn't get a chance to say
10 your piece.
11
BOARD MEMBER MOORE: There'll be another
12 opportunity.
13
HEARING OFFICER MCGILL: Great. I think
14 that concludes the Board's questions. I will open it up
15 to anyone else who has any questions for the witnesses of
16 the Agency or DNR. If you could just identify yourself
17 for the record, please.
18
PROFESSOR MURPHY: Thomas Murphy, emeritus
19 professor, DePaul University. Questions for --
20
HEARING OFFICER MCGILL: Professor Murphy,
21 if I could just interrupt you, sir. Do you have several
22 questions or -- I would just invite you to come up here.
23 The court reporter might have an easier time transcribing
24 your questions. Thanks. There's a -- Yeah, the
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1 microphone might help too. Thanks.
2
PROFESSOR MURPHY: Questions perhaps of Roy
3 Smogor or Joel Cross, either or both. Basis for the
4 question is the organisms use oxygen, they become
5 depleted in oxygen, they have to get oxygen from their
6 environment to replace that, and so there needs to be
7 sufficient oxygen available to them to make up for the
8 oxygen they're consuming. The question is, what's the
9 driving force for transporting the oxygen from the
10 environment into the aquatic organism, into a fish?
11
MR. SMOGOR: I'm not a fish physiologist. I
12 know that in part, as you have stated, it's -- in part
13 it's related to the partial pressure of oxygen in the
14 water versus the partial pressure of oxygen across the
15 gill surface of the fish where they take it in. That's
16 as much as I know about the physiology of it.
17
PROFESSOR MURPHY: Okay. But, I mean, I
18 think partial pressure is the important thing. I think
19 from --
20
HEARING OFFICER MCGILL: Professor Murphy,
21 sorry to interrupt, but if there's -- if you'd like to
22 make some comments that we would consider substantive
23 testimony, why don't we go ahead and swear you in,
24 because it sounds like you've got questions but you want
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1 to give us some background first. Could we go ahead and
2 swear in Professor Murphy, please?
3
(Witness sworn.)
4
HEARING OFFICER MCGILL: Thank you. Please
5 proceed.
6
PROFESSOR MURPHY: I mean, the science of it
7 is, as you say, partial pressure, and the question then
8 is maybe why is the State basing its standards on the
9 concentration of oxygen in milligrams per liter and not
10 on partial pressures?
11
MR. SMOGOR: It's largely based on the
12 decision made in the USEPA's national criteria document.
13 They address the issue saying that there were two schools
14 of thought on this issue. I'm not familiar with all of
15 the background information on those two schools of
16 scientific thought, but the national criteria document
17 does cite references that are relevant to those two
18 schools of thought, and the experts on the panel, I
19 assume, or the writer of the national criteria document,
20 they chose one school of thought, and that is to couch
21 standards in terms of milligrams per liter versus
22 standards in terms of partial pressure or percent
23 saturation.
24
PROFESSOR MURPHY: I think what the criteria
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1 document says, it says expressing the criteria in terms
2 of the actual amount of dissolved oxygen available to
3 organisms in milligrams per liter is considered more
4 direct and easier to administer compared to expressing
5 the criteria in terms of percent saturation, and they go
6 on saying that DO criteria expresses percent saturation,
7 such as discussed by Davis, 1975, are more complex and
8 could often result in unnecessarily stringent criteria in
9 the cold months and potentially unprotective criteria
10 during times of ambient -- high ambient temperatures.
11 Point of this is ease of administer is the principal
12 criteria for it. Davis -- The Davis paper cited here and
13 several places in your support document, Exhibit 23, does
14 present recommended standards for dissolved oxygen for
15 fish, and they present those standards in terms of
16 percent saturation. The scientific basis is I think the
17 percent saturation, and it seems to me that if you're
18 going to use a different unit for this that you should in
19 some way document that or justify that, give some
20 references for it, and there are none in your support
21 document that I can see, and the EPA criteria document
22 just makes a statement, and the references they give in
23 fact use percent saturation for their standards.
24
MR. SMOGOR: I could respond to that.
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1 Again, we used the national criteria document's decision
2 to go with milligrams per liter, and if you look on page
3 2, the second paragraph of the national criteria
4 document, they do go on and provide more of the reasoning
5 why they chose that one school of thought over the other,
6 and they do reference -- I think it's a paper by
7 Magnussen, et al., 1979, and there's more basis for their
8 choosing this one school of thought in that Magnussen, et
9 al., 1979.
10
PROFESSOR MURPHY: This school of thought,
11 I'm not sure what that is.
12
MR. SMOGOR: Well, that's using the term
13 from the national criteria document.
14
PROFESSOR MURPHY: In that, you know, I
15 referred to a respiration physiology book and that a
16 number of chapters dealt with aquatic organisms and
17 various -- transported various gases into these aquatic
18 organisms, and in those chapters I -- there were -- I saw
19 88 equations that dealt with the transfer of oxygen, and
20 they all use percent saturation, and in the book I didn't
21 find anything that related to milligrams per liter, so
22 this school of thought, I'm not sure -- I mean, the first
23 justification the criteria document gives is ease of --
24 it's easier to administer, and I'm not sure that that
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1 should be the reason for choosing it.
2
The point -- I don't mean to make an academic
3 argument out of this. The point is that they predict
4 different things, that 4 milligrams per liter is much
5 more available to an organism if the temperature is warm
6 than 4 milligrams per liter if the temperature is cold,
7 and you provide -- I don't think you provided any
8 temperatures in your documents, and the studies reported
9 in -- discussed in the criteria document sometimes report
10 temperatures and most of the time they do not. Where
11 they report temperatures, usually they're 20 degrees, and
12 so by implication and -- it's not stated, but the
13 implication is that those standards are based on the
14 oxygen available at 20 degrees, and the oxygen -- the
15 availability of that amount of oxygen in milligrams per
16 liter at 0 degrees is much less. It is 40 percent less
17 or 60 percent less or something like that.
18
So the reason for bringing this up is are your
19 proposed amendments sufficiently protective of organisms
20 at 0 degrees in cold waters? And also, if you're going
21 to be using milligrams per liter, it seems to me that
22 there should be some justification in your document for
23 doing that because it doesn't agree with the scientific
24 understanding of oxygen transport.
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1
MR. SMOGOR: I understand your concerns. I
2 guess all I can say to that effect is we're deferring to
3 the expertise of the national criteria document in this
4 issue, and the national criteria document provides an
5 explanation. I'm not saying that everyone has to accept
6 that, but it does provide an explanation of this issue
7 and we're deferring to that.
8
PROFESSOR MURPHY: But --
9
HEARING OFFICER MCGILL: Just to clarify for
10 the record, the USEPA national criteria document is
11 Exhibit 2 in this rulemaking record.
12
MR. SMOGOR: Thanks.
13
PROFESSOR MURPHY: You -- In your support
14 documents, Exhibit 23, in your and Joel Cross' support
15 for that, you find a lot of deficiencies with the
16 criteria document, you say because the criteria -- the
17 EPA '86 warm water criteria are based on information for
18 only a few tested warm water fish species. Well, so of
19 all of their studies, only a few of them relate to
20 Illinois. You also find that particularly for nontoxic
21 substances like dissolved oxygen, sole reliance on
22 laboratory-based acute thresholds is not recommended.
23 No, wait. Well, I -- anyway, you also state on page 15
24 that very few studies of stream macroinvertebrates are
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1 discussed in USEPA 1986, so you find a number of
2 deficiencies with the criteria document relating to
3 macroinvertebrates, relating to freshwater fishes,
4 relating to the basis -- basing the criteria document
5 particularly on laboratory studies, so it's not clear to
6 me that that document should serve as a foundation for
7 this report.
8
You spend a lot of time in your Exhibit 23
9 pointing out deficiencies of the criteria document. It
10 is 25 years old. No, it's -- what is it -- 20 years old.
11 We've learned a lot in 20 years. The Davis paper, which
12 used the percent saturation, is -- predates the criteria
13 document. Okay. So it seems to me if you're going to
14 use milligrams per liter and you indicate that -- you say
15 the Illinois EPA believes that these recommendations to
16 the Board are scientifically sound and defensible in
17 light of the currently available information, but you
18 don't defend those at all, and I don't think they're
19 scientifically sound.
20
HEARING OFFICER MCGILL: Professor Murphy,
21 I'm going to just ask that we focus on questions at this
22 point. We still have a prefiler who's yet to testify --
23 that's the District -- but if you had any further
24 questions, this would be the time to do that. Thanks.
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1 And time permitting, I think you --
2
PROFESSOR MURPHY: I'm fine.
3
HEARING OFFICER MCGILL: -- you can testify
4 yet more today.
5
PROFESSOR MURPHY: Which is a lot of my
6 testimony.
7
HEARING OFFICER MCGILL: Did you have any
8 further questions, then, at this point?
9
PROFESSOR MURPHY: No.
10
HEARING OFFICER MCGILL: Okay. Fair enough.
11 Thank you. Any other questions for the witnesses of the
12 Agency or DNR? Seeing none, I'd like to thank all of you
13 for all your hard work and for your participation today.
14 At this point I would like to ask Richard Lanyon from the
15 Metropolitan Water Reclamation District and counsel for
16 the District to come up front. So it'd probably be a lot
17 less disruptive if you just sat there where the
18 questioners have been sitting. That way the Agency and
19 DNR can sit tight, or if the DNR and Agency folks would
20 like to excuse themself, they can certainly do so.
21
Welcome. If you could go ahead and just identify
22 yourself for the record and if you have any opening
23 remarks.
24
MS. CONWAY: Good afternoon. My name is
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1 Margaret Conway. I'm one of the attorneys for the
2 Metropolitan Water Reclamation District, and with me
3 today is Richard Lanyon, director of the Research and
4 Development Department for the Metropolitan Water
5 Reclamation District of Greater Chicago. Just by way of
6 background, I just want to give a preliminary short
7 statement. On April 4, 2006, the Metropolitan Water
8 Reclamation District timely filed and served a document
9 entitled "Prefiled Testimony of Richard Lanyon" on behalf
10 of the Metropolitan Water Reclamation District of Greater
11 Chicago in support of the proposed amendments to
12 dissolved oxygen standard. On April 18, 2006, the
13 Metropolitan Water Reclamation District of Greater
14 Chicago timely filed and served its motion to modify and
15 supplement its prefiled testimony and exhibits. I would
16 ask if Mr. Lanyon now would be able to identify that
17 document for the record.
18
MR. LANYON: This is the document I
19 prepared.
20
MS. CONWAY: What is that document entitled?
21
MR. LANYON: It's titled "Amended prefiled
22 testimony of Richard Lanyon on behalf of the Metropolitan
23 Water Reclamation District of Greater Chicago in support
24 of proposed amendments to dissolved oxygen standard."
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1
MS. CONWAY: And is that a true and accurate
2 copy of the amended prefiled testimony?
3
MR. LANYON: Yes, it is.
4
HEARING OFFICER MCGILL: I'm going to go
5 ahead and -- if you want to get started, why don't we
6 swear him in, if we could. Would you go ahead swear in
7 the witness, please?
8
(Witness sworn.)
9
HEARING OFFICER MCGILL: If you could just
10 restate the question for the witness.
11
MS. CONWAY: I would ask that you identify
12 that document that you have before you today.
13
MR. LANYON: It's entitled "Amended prefiled
14 testimony of Richard Lanyon on behalf of the Metropolitan
15 Water Reclamation District of Greater Chicago in support
16 of the proposed amendments to the dissolved oxygen
17 standard."
18
MS. CONWAY: And is that a true and accurate
19 copy of the amended prefiled testimony?
20
MR. LANYON: Yes, it is.
21
MS. CONWAY: We would ask that the amended
22 prefiled testimony be marked as an exhibit for
23 identification.
24
HEARING OFFICER MCGILL: Okay. So there --
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1 just so we're clear, there's a pending April 18 motion to
2 modify and supplement the April 4 prefiled testimony. Is
3 there any objection to granting that motion? Seeing
4 none, I'll grant the District's motion. Now there's a
5 motion to enter as if read that amended prefiled
6 testimony. Is there any objection to that motion?
7 Seeing none, we'll enter that amended prefiled testimony
8 as if read and enter it as Hearing Exhibit 25.
9
MS. CONWAY: Thank you. Mr. Lanyon will
10 just summarize his testimony, then.
11
HEARING OFFICER MCGILL: That would be
12 terrific. Thank you.
13
MR. LANYON: Thank you. I've been the
14 director of the Department of Research and Development
15 since 1999 and have had a long career with the
16 Metropolitan Water Reclamation District and have been
17 involved with water quality issues for most of my career.
18 I will proceed to summarize my testimony.
19
I brought -- The testimony is broken down into
20 several issues, the first of which is the designated use
21 class system in Illinois. I also serve as a chairman of
22 a committee of the Illinois Association of Wastewater
23 Agencies. We are developing a proposal for a revised use
24 class system for the state. This will probably be based
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1 on the so-called tiered approach to aquatic life uses
2 similar to what is used in Ohio. We are working closely
3 with the Agency and with a group of stakeholders
4 representing a broad range of interests.
5
And normally, in developing this use class
6 system, you would look at habitat and biological
7 considerations to identify and to find your tiers. At
8 the start of this immediate proceedings, we were
9 proposing one change in the DO standard. Now that has
10 morphed into a two-tiered system, which is in some way
11 approaching what we're doing in terms of a use
12 classification system, so at some point in the future
13 when there is a proposal before the Board for revising
14 the use class system, the two tiers for the DO standard
15 will -- may or may not be in contention with what is
16 being proposed for aquatic life use classes for the
17 state. I just wanted to bring that to your attention at
18 this time.
19
I also discuss how difficult the standard is with
20 determining compliance -- the Agency has also referenced
21 that -- and also describe the use attainability analysis
22 study being conducted for the waterways in the Chicago
23 area. The study is being conducted by the Agency. There
24 are actually two studies underway, and these waterways
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1 are different than other waterways in the state in that
2 they're mostly manmade or are irreversibly modified
3 rivers that are used primarily for commercial navigation
4 and urban drainage and recreational navigation. The --
5 As a part of that study, we're coming up with defined use
6 classes for these waterways both based on aquatic life
7 uses and based on recreational uses, and at some point in
8 the future you'll be hearing the results of these studies
9 with proposed use classes for these waterways, and this
10 again may work into a general scheme of revising the
11 state-wide use classes.
12
In our waterways, we find that there's very
13 little variability in daily fluctuation of dissolved
14 oxygen. This is primarily due to the nature of the
15 waterways being deep, being effluent dominated and being
16 well mixed. Because of a high turbidity, there is a lack
17 of light penetration and, as a result, a lack of
18 photosynthetic activity. There are some reaches that are
19 relatively stagnant and they do experience wide
20 fluctuations in dissolved oxygen. However, in order to
21 meet the DO standards in these waterways, we have to
22 supplement natural reaeration with supplement aeration,
23 and by doing so, we are reducing the natural variability
24 you see in the DO.
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1
We've deployed automatic dissolved oxygen
2 monitors in our waterways starting in 1998 and two years
3 ago we began to deploy these in wadeable streams in Cook
4 County, and this would -- we see a pattern of dissolved
5 oxygen variability in these wadeable streams, and
6 these -- the current rulemaking would be applicable to
7 these waterways more than the deep-draft waterways.
8 However, we see variations from zero dissolved oxygen to
9 conditions that are supersaturation, around 13 milligrams
10 per liter, and I think in considering the -- either the
11 current proposal on the table or the modified proposal by
12 the Agency and the DNR, there has to be a reasonable
13 expectation of compliance, so for these urban impacted
14 and sometimes combined sewer overflow impacted streams,
15 the current rulemaking should take these conditions into
16 consideration.
17
I have commented on the testimony of others in
18 previous hearings, and I'll skip over that because I
19 think mostly it's for clarification purposes and really
20 doesn't address the current proposal. However, I would
21 like to comment on the proposal being advanced by the
22 Illinois DNR and the Illinois EPA. One thing I've
23 noticed is that fish were ranked by sensitivity to
24 dissolved oxygen by correlating the relative abundance to
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1 the observed DO concentrations. Now, the two agencies --
2 that is, the DNR and the EPA -- admit that this is flawed
3 and does not prove that low dissolved oxygen causes low
4 abundance; however, have they gone ahead and used this
5 correlation in developing their approach. On the other
6 hand, they've also used macroinvertebrate tolerance of
7 low dissolved oxygen and based this on an index that
8 measures sensitivity to organic pollution, not
9 sensitivity to dissolved oxygen. I think there has to be
10 more explanation of how these two approaches are
11 supported scientifically.
12
The use of the seven- and thirty-day averages in
13 the joint proposal needs to be more clear because they
14 were breaking the year up into two periods, a seven-month
15 period and a five-month period. It's not clear if the
16 seven-day averages are for consecutive day periods or for
17 any seven or thirty days out of the five or seven months
18 period.
19
Also there -- well, we have one of our -- in
20 our -- in my prepared testimony I present information on
21 dissolved oxygen monitoring for the Little Calumet River
22 at the Illinois-Indiana state line. This is one of the
23 stations which exhibits periods of zero DO and would not
24 meet the proposed standard, although it is currently
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1 designated as general use. This is primarily due to
2 conditions that are caused by activities in the state of
3 Indiana, so here is an interstate water that will not
4 meet the proposed standard and some consideration should
5 be given to these -- this situation and to other similar
6 situations in the state.
7
Normal monitoring for water quality, so-called
8 ambient water quality monitoring, is based on monthly
9 grab sampling or in some cases grab sampling every six
10 weeks, and there's an insufficient amount of data
11 produced by this type of monitoring to support the
12 current joint proposal. With a seven-day and thirty-day
13 average, you just do not collect enough data points
14 within the five- or seven-month period, so I would
15 suggest that there be some consideration for a monitoring
16 protocol to be prepared by the Agency to guide people in
17 the state as to how to apply these standards. It
18 certainly -- Although there seems to be a trend to using
19 continuous monitoring, it certainly would be a
20 disincentive to use continuous monitoring if that would
21 produce the data which would put you into jeopardy with
22 compliance, so I think this has to be addressed so that
23 people can move forward and use the modern tools at hand.
24 But the language in Section 1(c), which addresses the
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1 maxima and minima, could be simplified. It refers now to
2 data which must represent the true maxima and the true
3 minima. What is true, I'm not certain about, but we know
4 what we measure, and I think the language could just
5 simply say it has to be representative of conditions in
6 the stream.
7
HEARING OFFICER MCGILL: Sir, are you
8 referring to -- you said Section 1(c)?
9
MR. LANYON: 1(c) in the proposal, yes.
10
HEARING OFFICER MCGILL: Exhibit 20, the
11 Agency --
12
MR. LANYON: That's Section D, 1 -- I'm
13 sorry. The nomenclature's a little different. This is
14 Section 302.206, Subsection D, item 3 --
15
HEARING OFFICER MCGILL: Thank you.
16
MR. LANYON: -- which refers to the --
17 that's part of Exhibit 20. Of course -- I would also
18 suggest that some consideration be given to wet weather
19 conditions. We see depressions of dissolved oxygen
20 following wet weather events when there's increased flows
21 and loadings imposed on the stream, and there should be a
22 recognition that these standards may not necessarily
23 apply during those -- that interval of time.
24
And the last thing I wanted to mention is that
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1 the -- I already suggested the development of a
2 monitoring protocol to help guide compliance with the
3 rule. This protocol should address both time and space
4 issues, time in terms of how often one samples, what
5 interval of data is used, whether it's monthly, daily,
6 hourly, 15 minutes, or in terms of space as to what
7 segment -- or what point in the reach one should monitor,
8 should it be the upstream end of the reach, the
9 downstream end of the reach. Since the State has gone to
10 the extent of dividing up our waterways into water body
11 segments or assessment units, as they were referred to
12 today, we should have some clarity as to where in these
13 segments or units we should be performing the monitoring.
14
That concludes my testimony. I'll be happy to
15 answer any questions.
16
HEARING OFFICER MCGILL: Thank you. Are
17 there any questions for Mr. Lanyon?
18
MS. WILLIAMS: I have some clarifying
19 questions, if you want us to go first.
20
HEARING OFFICER MCGILL: Why don't you go
21 ahead.
22
MS. WILLIAMS: Mr. Lanyon, working off your
23 amended testimony, on page 3 you make a statement that
24 using continuous monitoring is problematical because no
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1 USEPA-approved method is available, correct?
2
MR. LANYON: Yes, I did make that statement.
3
MS. WILLIAMS: Are you familiar with method
4 360.1? I'm going to show you what I've marked as Exhibit
5 25 for identification purposes.
6
HEARING OFFICER MCGILL: 26.
7
MR. LANYON: 26.
8
MS. WILLIAMS: Sorry. 26. Have you ever
9 seen this document before?
10
MR. LANYON: I can't say that this has come
11 to my attention.
12
MS. WILLIAMS: Okay.
13
MR. LANYON: I see it's issued in 1971.
14
MS. WILLIAMS: Right. That's -- Would you
15 describe it -- I mean, having never seen it before, I'm
16 going to ask you if you can describe it as a USEPA method
17 for monitoring dissolved oxygen or not. Can you answer
18 that?
19
MR. LANYON: I haven't seen it. However, I
20 did see in the last week a notice that the EPA was
21 considering a -- an approved method on some of the new
22 developments in probes, and so I should have made comment
23 on that, but my testimony was prepared prior to my seeing
24 that recent notice.
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1
HEARING OFFICER MCGILL: If I could just ask
2 counsel for the Agency to identify the document. Is this
3 a USEPA document?
4
MS. WILLIAMS: Yes. I was hoping I could
5 authenticate it with the witness, but, yes, this is a
6 document obtained from the USEPA Web site, I guess.
7
MR. SMOGOR: It's NEMI Web site. The
8 National Environmental Methods Index, I think, is the Web
9 site that it came from.
10
HEARING OFFICER MCGILL: Thank you. That's
11 entitled method number 360.1, approved for NPDES, issued
12 1971, entitled "Oxygen, Dissolved." Any objection to
13 entering this as Hearing Exhibit 26? Seeing none, we'll
14 grant that motion.
15
MS. WILLIAMS: You mentioned that you had
16 read something since preparing your testimony, so on that
17 line I just wanted to clarify for the record. In a
18 couple places in your amended testimony -- for example,
19 on page 11 -- you state that the only information you had
20 available on the IEPA/IDNR proposal was a February 16
21 draft, correct? I just want to clear up for the record,
22 you didn't -- when you amended your proposal, you didn't
23 take into account the Agency's prefiled testimony at that
24 point either, did you?
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1
MR. LANYON: No, I didn't. That was in the
2 works at the time. The material crossed in the mail.
3
MS. WILLIAMS: And I just want to clear some
4 of those questions up, because I believe there's some
5 cross-references in your testimony that reference an
6 earlier version than the one that we --
7
MR. LANYON: Right. You're correct. I was
8 referencing the earlier version.
9
MS. WILLIAMS: So when you reference
10 Subsection D of the Agency's proposed language, would it
11 be correct to state that that is referring to what is now
12 Exhibit 21, our Appendix D, the list of streams on -- why
13 don't I refer you to your testimony on page 12, and you
14 state that -- in the middle of the page it says in
15 Subsection D, no streams were defined.
16
MR. LANYON: That's correct. I would now be
17 referring to what is now 302.206, Subparagraph C. Now,
18 Appendix -- I didn't have Appendix D at the time I
19 prepared my initial testimony, and that may very well be
20 the list that you referred to. However, I did --
21
MS. WILLIAMS: It was a place holder,
22 though, at that time for it, right? Does that sound
23 correct?
24
MR. LANYON: Right. All I saw at the time
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1 was the map, eight-and-a-half-by-eleven map.
2
MS. WILLIAMS: And on page 13 you began to
3 refer about Subsection E or their definitions, and I just
4 would like to clear for the record that now that is --
5
MR. LANYON: Subsection D as in David.
6
MS. WILLIAMS: Thank you. In your testimony
7 on page 12, I believe it is, you request that when the
8 streams become available -- at that point in time the
9 list was not available -- so you state that you want them
10 to be listed on a table and have a standard form of
11 identification. At this time now, having seen Appendix
12 D, would you say that this list satisfies that suggestion
13 in your prefiled testimony with providing the latitude
14 and longitude?
15
MR. LANYON: Well, to those of us in the
16 profession it may be acceptable. However, I think when
17 you -- in terms of the public, the definition of water
18 body segments or assessment units, as they're called, it
19 needs to be made clearer using commonly available
20 cultural features. The public I think is more aware of
21 river miles, and they are certainly aware of road
22 crossings and those types of cultural features, and I
23 know that in our dealings in our area with the public,
24 the eyes begin to glaze over when you have latitude and
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1 longitude and those sorts of abstractions.
2
MS. WILLIAMS: Do bridges help?
3
MR. LANYON: Yes, they do.
4
MS. WILLIAMS: On page 13 -- I hope I'm
5 understanding this right -- you make some comment about
6 the definition of daily minimum, and I don't know if you
7 can answer this today, but I believe that you're
8 commenting on a draft version of that definition rather
9 than the one that was filed with the Board. I'm not sure
10 if you can tell for sure if that's the case.
11
MR. LANYON: Without referring to my notes,
12 I believe this reads the same as I saw in the earlier
13 draft. This is Subsection D, paragraph 3, the
14 measurements of dissolved oxygen used to determine
15 attainment or lack of attainment.
16
MS. WILLIAMS: But you suggest the words
17 "calculation of" should be stricken, and I don't
18 believe --
19
MR. LANYON: Or I could -- I would
20 suggest --
21
MS. WILLIAMS: Oh. Go ahead. Go ahead.
22
MR. LANYON: I'll suggest that it just say
23 the measurements of dissolved oxygen used to determine
24 attainment or lack of attainment with any of the
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1 dissolved oxygen standards in this section must represent
2 actual stream conditions.
3
HEARING OFFICER MCGILL: Could I just ask --
4 if you're reading from a document, you tend to go a lot
5 faster than when you're just talking and responding to --
6 the court reporter may have a hard time keeping up.
7 Could you just repeat the last thing? You're -- I'm
8 sorry. You're reading from a -- the proposed --
9
MR. LANYON: Reading from Exhibit 20.
10
HEARING OFFICER MCGILL: You're reading from
11 the rule language that's Exhibit 20.
12
MR. LANYON: Right.
13
HEARING OFFICER MCGILL: And you're in
14 Subsection D(3)?
15
MR. LANYON: Would you like me to reread
16 that?
17
HEARING OFFICER MCGILL: Yeah, if you could.
18
MR. LANYON: Okay. Slower.
19
HEARING OFFICER MCGILL: Thanks.
20
MR. LANYON: The measurements of dissolved
21 oxygen used to determine attainment or lack of attainment
22 with any of the dissolved oxygen standards in this
23 section must be representative of actual stream
24 conditions, period.
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1
HEARING OFFICER MCGILL: Is that what you're
2 proposing? That's what you're proposing it read, how it
3 should read?
4
MR. LANYON: Yes.
5
HEARING OFFICER MCGILL: Thank you.
6
MS. WILLIAMS: I think I was wanting to get
7 at your comment on the section just prior to that, the
8 daily minimum. It's the last sentence on page 13 of your
9 testimony. Daily minimum --
10
MR. LANYON: Yes. That language has changed
11 from the earlier draft.
12
MS. WILLIAMS: Thank you. That's all I
13 wanted to get at.
14
MR. LANYON: And this makes much more sense.
15
MS. WILLIAMS: Okay.
16
MR. LANYON: Thank you.
17
MS. WILLIAMS: We think so too. And also,
18 just to clarify, I think it's clear in your testimony,
19 but when we talk about the area of the Chicago waterway
20 that is the subject of the use attainability study, the
21 majority of that is currently secondary contact and
22 indigenous aquatic life; is that correct?
23
MR. LANYON: That's correct.
24
MS. WILLIAMS: And that this dissolved
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1 oxygen standard for that use category is not being
2 proposed to be changed either by IAWA or by the Agency
3 and the Department, correct?
4
MR. LANYON: Not in this rulemaking, that's
5 correct. However, there are segments of the waterways
6 that are general use that may be impacted by this
7 rulemaking.
8
MS. WILLIAMS: And I believe you identify
9 them as 4 miles of the North Shore Channel and 1.6 miles
10 of the Chicago River?
11
MR. LANYON: Yes.
12
MS. WILLIAMS: On page 10 of the testimony,
13 you made a statement in the center of the page that the
14 Board has already received testimony from Mr. Terrio,
15 Paul Terrio you identified earlier. I would just like to
16 clarify the record. You're not aware of any formal
17 testimony that Paul Terrio made in this proceeding, are
18 you?
19
MR. LANYON: Yes.
20
MS. WILLIAMS: I mean, I know Mr. Terrio
21 presented testimony at various --
22
MR. LANYON: Did I mix it up with the
23 phosphorus proceeding? I beg your pardon. One
24 rulemaking to the other.
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1
MS. WILLIAMS: You would agree that
2 there's no -- You would agree with my statement that
3 there's no formal testimony from Paul Terrio in this --
4
MR. LANYON: Then I would -- I stand
5 corrected, and I beg your pardon.
6
HEARING OFFICER MCGILL: If I could just
7 interrupt you for a --
8
MS. WILLIAMS: Sure.
9
HEARING OFFICER MCGILL: -- minute, Ms.
10 Williams. We've gone -- We're -- We've now gone another
11 hour. It's been two hours since we started up again
12 after lunch, and, Albert, do you -- I'm sorry.
13 Mr. Ettinger, do you have some questions?
14
MR. ETTINGER: I actually just have one.
15
HEARING OFFICER MCGILL: One? Okay.
16 Ms. Williams, are --
17
MS. WILLIAMS: I believe I'm actually done,
18 but I would like to look over my notes for a second.
19
HEARING OFFICER MCGILL: Sure. Why don't
20 you go ahead and do that and then we'll take a short
21 break, and when we get back from that break, we'll
22 continue with witnesses who did not prefile but would
23 like to testify today. We're still on the record, so --
24
MR. ETTINGER: Do you want me to ask my
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1 question?
2
MS. WILLIAMS: If you don't mind, yeah.
3
MR. ETTINGER: I was just going to ask as to
4 Exhibit 5. You give a value for percent, percent of DO
5 values above standard. I was wondering whether that's
6 above the secondary contact standard or above the general
7 use standard, or does it vary depending on where
8 they're --
9
MR. LANYON: It's above the applicable
10 standard which is shown in the exhibit.
11
MR. ETTINGER: Oh, I see.
12
HEARING OFFICER MCGILL: Thank you,
13 Mr. Ettinger. Any further questions from the Agency?
14
MS. WILLIAMS: Just really briefly. In your
15 final recommendations on the last page of your testimony,
16 you talk about recommending that the Board provide a
17 waiver based on affordability and feasibility of
18 technology. I just want to be clear. None of the
19 proposals before the Board today would impose a stricter
20 DO standard than we have on the books today, would they?
21
MR. LANYON: No.
22
MS. WILLIAMS: And you also suggest that the
23 Board consider a separate wet weather standard for
24 dissolved oxygen. Are you aware at this time of any
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1 other states that have done that for dissolved oxygen?
2
MR. LANYON: I believe there was a move
3 afoot in Massachusetts. I'm not sure if they've enacted
4 a rulemaking or not, but --
5
MS. WILLIAMS: So you wouldn't know at this
6 time whether USEPA would entertain a standard like that?
7
MR. LANYON: Don't know whether they would
8 or not.
9
MS. WILLIAMS: I think that's all I have.
10 Thank you.
11
HEARING OFFICER MCGILL: Okay. Before we
12 break, any further questions for the District's witness?
13 Seeing none, I thank both of you for participating today,
14 and we're going to take a break.
15
MR. LANYON: Thank you. It's been our
16 pleasure.
17
HEARING OFFICER MCGILL: Why don't we go off
18 the record.
19
(Brief recess taken.)
20
HEARING OFFICER MCGILL: Let's go back on
21 the record. We have another witness who would like to
22 testify today, Thomas Muth, district manager of Fox Metro
23 Water Reclamation District. I'll turn it over to
24 Mr. Harsch.
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1
MR. HARSCH: Thank you. Mr. Muth, can you
2 please state for the record your name and what your
3 current position is?
4
HEARING OFFICER MCGILL: Can we -- I'm
5 sorry. Can we go ahead and swear in the witness, please?
6
(Witness sworn.)
7
MR. HARSCH: Mr. Muth, can you please state
8 for the record your full name and what your current
9 position is?
10
MR. MUTH: My name is Thomas Muth, district
11 manager --
12
HEARING OFFICER MCGILL: Can you turn on the
13 microphone?
14
MR. MUTH: My name is Thomas Muth, district
15 manager, Fox Metro Water Reclamation District.
16
MR. HARSCH: And you've had an active role
17 historically in the Illinois Association of Wastewater
18 Agencies?
19
MR. MUTH: Yes. I'm a past president of the
20 IAWA, Illinois Association of Wastewater Agencies.
21
MR. HARSCH: And can you please explain for
22 the record what the Fox Metro Water Reclamation District
23 is?
24
MR. MUTH: We're a publicly-owned wastewater
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1 facility in Oswego, Illinois, treating wastewater for a
2 population of 250,000 residents for five communities and
3 portions of two other communities.
4
MR. HARSCH: And what are those communities?
5
MR. MUTH: Communities of North Aurora,
6 Sugar Grove, Montgomery, Oswego, Aurora, portions of
7 Yorkville, Batavia, and unincorporated Boulder Hill.
8
MR. HARSCH: Thank you. And you have some
9 testimony you'd like to present today?
10
MR. MUTH: Yes, I do.
11
MR. HARSCH: Please proceed.
12
MR. MUTH: It is the position of the Fox
13 Metro Water Reclamation District that the inclusion of
14 Fox River stream segment number 270 upon the list of
15 stream segments needing enhanced dissolved oxygen
16 protection is not warranted. This segment should be
17 treated as general use waters. Any change should be
18 considered only after the characterization of DO and
19 other parameters in the segment have been assessed by the
20 Fox River Study Group.
21
Fox Metro has collected a limited amount of data
22 which segments that Fox River stream segment number 270
23 does not currently meet the existing general use
24 dissolved oxygen standards during the summer months.
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1 During 2005, Fox Metro hired Walter E. Deuchler
2 Associates, a consulting engineering firm, to conduct a
3 continuous DO monitoring at three stations on the Fox
4 River. Two of the stations were located upstream and one
5 of the stations was located downstream from the Fox Metro
6 publicly-owned treatment works outfall. One of the
7 monitoring stations was located about 1.1 miles upstream
8 from the start of the Fox River segment number 270. The
9 remaining two stations were located within the stream
10 segment.
11
Fox Metro conducted the DO monitoring on its own
12 during May, June and July of 2005. DO measurements were
13 conducted every 15 to 30 minutes on the days when
14 monitoring was performed. A preliminary analysis of the
15 data indicates that in May, the current minimum DO
16 standard of 5.0 milligrams per liter was met nearly 100
17 percent of the time at all three monitoring locations.
18 During June, as water temperatures increased,
19 approximately 25 percent of the data points at all three
20 stations fell below 5.0 milligrams per liter. During
21 July, about 40 percent of the data points at all three
22 stations fell below 5.0 milligrams per liter. Therefore,
23 it is Fox Metro's position that Fox River segment number
24 270 cannot meet the current or the proposed DO standards.
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1
It is to be noted that concerns about water
2 quality in the watershed led to the formation of the Fox
3 River Study Group during 2001. Fox Metro is a
4 stakeholder in the study group. With encouragement from
5 the IEPA, the Fox River Study Group developed a
6 multiphase study plan with objectives including long-term
7 coordinated river monitoring and the development of
8 computer models for the watershed. The first phase of
9 the study was released by the Illinois State Water Survey
10 during March 2004. The Illinois State Water Survey
11 observed that during summer low-flow conditions, the
12 existing DO standards were not being met in the Fox River
13 from Johnsburg to Oswego. The report also concluded that
14 insufficient data is available for the Fox River and that
15 more intensive data collection is needed.
16
Presently, the Fox River Study Group is in the
17 process of developing a three-year water quality
18 monitoring plan that includes continuous DO monitoring at
19 sixteen stations. The DO monitoring will be conducted
20 for at least thirty days during two or three summer
21 low-flow periods. In conclusion, Fox Metro respectfully
22 requests that the Illinois Pollution Control Board not
23 approve this segment as an enhanced segment with more
24 restrictive dissolved oxygen standards until such time as
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1 the Fox River Study Group has completed its full water
2 quality assessment of the Fox River. Thank you.
3
HEARING OFFICER MCGILL: Thank you very
4 much. Are there any questions for the witness?
5 Mr. Ettinger?
6
MR. ETTINGER: Yeah. I guess -- Is -- That
7 study that you discussed that took the data that you
8 referred to in your testimony, has that been written up
9 anywhere?
10
MR. MUTH: We can put the information
11 together. I have to work through our consulting engineer
12 to retrieve the information in a readable format.
13
MR. HARSCH: Albert, were you referring to
14 the study done by the -- the survey?
15
MR. ETTINGER: No, the Deuchler study that
16 he was referring to. Specifically, I guess what I was
17 hoping to find -- and this is a request -- is whether it
18 was done in terms of -- where it was done in the water
19 and the temperature it was done in the water in terms of
20 the sorts of things we were talking about this morning
21 and whether it would be possible to discern that from the
22 study.
23
MR. MUTH: We could provide that information
24 to you.
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1
MR. ETTINGER: Thank you.
2
MR. RAO: I had a couple of questions,
3 Mr. Muth. Is your wastewater treatment plant the only
4 discharger in this segment that you're talking about?
5
MR. MUTH: No, it is not.
6
MR. RAO: Are there other municipal
7 wastewater treatment plant discharges or are they
8 industrial discharges?
9
MR. MUTH: Are you referring to stream
10 segment 270?
11
MR. RAO: Uh-huh.
12
MR. MUTH: I'm not 100 percent sure, but I
13 believe there is one for sure, Yorkville Bristol Sanitary
14 District.
15
MR. RAO: And do you --
16
MR. HARSCH: That would be downstream
17 some --
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MR. MUTH: Eight miles.
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MR. RAO: Do you aerate your effluent?
20
MR. MUTH: Our effluent drops approximately
21 five feet before it enters the Fox River, if that could
22 be referred to as aeration.
23
MR. RAO: All right. Thank you.
24
HEARING OFFICER MCGILL: Thank you. Any
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1 further questions for the witness? Seeing none, thank
2 you very much for participating here today.
3
MR. MUTH: Thank you very much.
4
HEARING OFFICER MCGILL: Why don't we go off
5 the record for a moment.
6
(Off the record.)
7
HEARING OFFICER MCGILL: At this point we
8 only have one other witness who signed up to testify
9 today. That's Professor Murphy from DePaul University.
10 After the Professor's testimony and questions for
11 Professor Murphy, I'll ask if anyone else is interested
12 in testifying today. If not, we'll conclude today's
13 hearing with a few procedural items such as scheduling
14 our status conference call. With that, I would just
15 remind Professor Murphy that you've already been sworn
16 in, and please proceed with your testimony.
17
PROFESSOR MURPHY: I had submitted public
18 comments. Could I have them just incorporated as if I
19 had read them?
20
HEARING OFFICER MCGILL: Well --
21
PROFESSOR MURPHY: What's your suggestion on
22 that? I can --
23
HEARING OFFICER MCGILL: Is it your -- You
24 had filed what has been marked as public -- what has been
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1 designated public comment 83.
2
PROFESSOR MURPHY: Okay.
3
HEARING OFFICER MCGILL: It's considered a
4 public comment because it did not come in in time for the
5 prefiled filing deadline, but you certainly can move to
6 have it entered as if read, and anyone at this point can
7 object to that if they have any objection.
8
PROFESSOR MURPHY: Just -- Then perhaps I
9 can just make a few brief comments, a summary of that
10 or --
11
HEARING OFFICER MCGILL: Would you like to
12 read your -- It's about -- It looks like it's about five
13 pages long. Would you like to read it or would you
14 rather me see if anyone objects to your motion to have it
15 entered as if it was read?
16
PROFESSOR MURPHY: Yeah, if you would see if
17 anybody objects to that.
18
HEARING OFFICER MCGILL: Does anyone object
19 to that motion?
20
PROFESSOR MURPHY: I mean, it has been
21 submitted to the list.
22
BOARD MEMBER MOORE: The service list?
23
PROFESSOR MURPHY: The service list.
24
HEARING OFFICER MCGILL: Okay. So the
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1 motion is to have public comment 83 filed by Professor
2 Murphy April 20 entered as testimony as if read. Is
3 there any objection to that?
4
MS. WILLIAMS: No objection.
5
HEARING OFFICER MCGILL: Seeing none, I'll
6 grant that motion, and if you'd like, you can summarize,
7 or if you had --
8
PROFESSOR MURPHY: Yes, just a brief --
9
HEARING OFFICER MCGILL: -- actual
10 testimony. Please proceed.
11
PROFESSOR MURPHY: Okay. So again, I'm
12 Thomas Murphy, and what I've tried to say in the
13 comments, that I don't think the proposed standards are
14 based on the current science of oxygen transport in
15 systems and that the Agency's support documents don't
16 demonstrate that their proposed amendments will be
17 protective of aquatic organisms at low temperatures, and
18 so that -- I mean, I recommend that -- the current
19 regulations have been enforced for 34 years. It's tough
20 to change these regulations; that the proposed
21 regulations are only incremental changes in these
22 regulations, in the current regulations, and my
23 suggestion is that the Agency go back and base new
24 regulations on the current science rather than these
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1 incremental changes, so I -- we need a revolutionary
2 change in the regulations and not just incremental
3 changes, and that not being the case, that their proposed
4 regulations add then additional standards that address
5 the issues that may occur at low temperatures. Thank you
6 very much.
7
HEARING OFFICER MCGILL: Thank you. Are
8 there any questions for Professor Murphy? Seeing none, I
9 thank you very much --
10
PROFESSOR MURPHY: Thank you.
11
HEARING OFFICER MCGILL: -- for
12 participating today. Professor Murphy's public comment
13 83 is now Hearing Exhibit 27, and that has been entered
14 into the record as if read. Thank you.
15
Is there anyone else who wishes to testify today?
16 Seeing no response, let's go off the record for a moment.
17
(Discussion held off the record.)
18
HEARING OFFICER MCGILL: Just a few
19 procedural items before we adjourn, and I will issue a
20 hearing officer order to this effect, but we have set up
21 a status conference call for May 15 -- that's a Monday --
22 at 10 a.m. Earlier a motion was granted for an
23 additional hearing. I'll mention that anyone may file
24 written public comments with the clerk of the board.
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1 Electronic filing is available. You can pose any
2 questions you have about filing on clerk's office on line
3 to our clerk's office.
4
Filings with the Board, whether paper or
5 electronic, must also be served on the hearing officer
6 and on those persons on the service list. I will just
7 remind you to please check with Sandy Wiley of our office
8 to make sure you have the most recent version of the
9 service list.
10
Copies of today's transcript should be available
11 by May 4 or 5, and we'll post them on our Web site
12 shortly after receiving them. If anyone has any
13 procedural questions, feel free to contact me. Are there
14 any -- Why don't we go off the record for a moment.
15
(Discussion held off the record.)
16
HEARING OFFICER MCGILL: The status
17 conference call that we're having on May 15, we're hoping
18 to get an update on where IEPA -- I'm sorry -- IAWA
19 stands in terms of receiving information from DNR and
20 IEPA and IAWA's assessment on how long its evaluation of
21 that information will take. We will also discuss
22 potential hearing dates.
23
With that, are there any other matters that need
24 to be addressed at this time? Seeing none, I would like
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1 to thank everyone for all their hard work and for
2 participating here today, and this hearing's adjourned.
3 Thank you.
4
(Hearing adjourned.)
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1 STATE OF ILLINOIS)
) SS
2 COUNTY OF ST. CLAIR )
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I, KAREN WAUGH, a Notary Public and Certified
5 Shorthand Reporter in and for the County of St. Clair,
6 State of Illinois, DO HEREBY CERTIFY that I was present
7 at Illinois Pollution Control Board, Springfield,
8 Illinois, on April 25, 2006, and did record the aforesaid
9 Hearing; that same was taken down in shorthand by me and
10 afterwards transcribed, and that the above and foregoing
11 is a true and correct transcript of said Hearing.
12
IN WITNESS WHEREOF I have hereunto set my hand
13 and affixed my Notarial Seal this 4th day of May, 2006.
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__________________________
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Notary Public--CSR
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#084-003688
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