Microsoft Word - R04-25,1102&0306 Transcript.txt

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

3 IN THE MATTER OF:

)

4 PROPOSED AMENDMENTS TO

)

DISSOLVED OXYGEN STANDARD )

5 35 ILL. ADM. CODE 302.206 ) R04-25

) (Rulemaking - Water)

)

9 Proceedings held on November 2 and 3, 2006, beginning at

1:43 p.m. on November 2, 2006, at the Illinois Pollution

10 Control Board, 1021 North Grand Avenue East, Springfield,

Illinois, before Richard R. McGill, Hearing Officer.

Reported By: Karen Waugh, CSR, RPR

CSR License No: 084-003688

KEEFE REPORTING COMPANY

11 North 44th Street

Belleville, IL 62226

(618) 277-0190

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APPEARANCES

3 Board Members present:

5 Chairman G. Tanner Girard

Board Member Andrea S. Moore

6 Board Member Thomas E. Johnson

7 Anand Rao, Environmental Scientist

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

BY: Ms. Deborah J. Williams

Assistant Counsel

Division of Legal Counsel

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

On behalf of the Illinois EPA

BY: Ms. Stefanie N. Diers

Assistant Counsel

Division of Legal Counsel

1021 North Grand Avenue East

Springfield, Illinois 62794-9276

On behalf of the Illinois EPA

ILLINOIS DEPARTMENT OF NATURAL RESOURCES

BY: Mr. Stanley Yonkauski

One Natural Resources Way

Springfield, Illinois 62702-1271

On behalf of the Illinois DNR

GARDNER, CARTON & DOUGLAS LLP

BY: Mr. Roy M. Harsch

191 Wacker Drive, Suite 3700

Chicago, Illinois 60606

On behalf of IAWA and Fox Metro Water

Reclamation District

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ENVIRONMENTAL LAW & POLICY CENTER

BY: Mr. Albert F. Ettinger

Senior Attorney

35 East Wacker Drive, Suite 1300

Chicago, Illinois 60601

On behalf of the Environmental Law &

Policy Center, Sierra Club and Prairie

Rivers Network

METROPOLITAN WATER RECLAMATION DISTRICT OF

GREATER CHICAGO

BY: Ms. Margaret T. Conway

Senior Assistant Attorney

100 East Erie Street, Room 301

Chicago, Illinois 60611

On behalf of the Metropolitan Water

Reclamation District of Greater Chicago

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INDEX

2 WITNESS

PAGE NUMBER

3 IEPA/IDNR Panel

Stephen Pescitelli

4 Ann Holtrop

Joel Cross

5 Toby Frevert

Matthew Short

6 Roy Smogor

7 Professor Thomas Murphy

8 IAWA

Dennis Streicher

9 Dr. James Garvey

10 MWRD of Greater Chicago

215

Richard Lanyon

11 Louis Kollias

12 Cindy Skrukrud

256

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EXHIBITS

2 NUMBER

PAGE ENTERED

3 Hearing Exhibit No. 29

4 Hearing Exhibit No. 30

5 Hearing Exhibit No. 31

6 Hearing Exhibit No. 32

7 Hearing Exhibit No. 33

8 Hearing Exhibit No. 34

9 Hearing Exhibit No. 35

10 Hearing Exhibit No. 36

107

11 Hearing Exhibit No. 37

169

12 Hearing Exhibit No. 38

180

13 Hearing Exhibit No. 39

190

14 Hearing Exhibit No. 40

215

15 Hearing Exhibit No. 41

215

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HEARING OFFICER MCGILL: We're going to go

2 on the record now. Good afternoon. I'd like to welcome

3 everyone to this Illinois Pollution Control Board

4 hearing. My name is Richard McGill. I'm the hearing

5 officer for this rulemaking docketed as R04-25 and

6 entitled "Proposed Amendments to Dissolved Oxygen

7 Standard 35 Illinois Administrative Code 302.206." The

8 Board received this rulemaking proposal in April 2004

9 from the Illinois Association of Wastewater Agencies, or

10 IAWA, which seeks to amend the Board's rule on general

11 use water quality standards for dissolved oxygen.

Also present today on behalf of the Board is

13 Board Member Andrea Moore, the lead board member for this

14 rulemaking; Chairman Tanner Girard; Board Member Thomas

15 Johnson; as well as Anand Rao of the Board's technical

16 unit. Would any of the board members present like to

17 make any remarks at this time?

BOARD MEMBER MOORE: No, thank you.

CHAIRMAN GIRARD: No.

HEARING OFFICER MCGILL: This afternoon and

21 continuing tomorrow at 10 a.m., we are holding the fifth

22 hearing in this rulemaking. No additional hearings are

23 presently scheduled. We'd like to get through as much

24 testimony and cross examination as we can this afternoon,

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1 so we may go a little later to the extent everyone's

2 schedule allows, perhaps to six o'clock if need be or --

3 we'll just play that by ear.

I should mention that this proceeding is governed

5 by the Board's procedural rules. All information that is

6 relevant and not repetitious or privileged will be

7 admitted into the record. Please note that any questions

8 posed today by the Board are intended solely to develop a

9 clear and complete record for the Board's decision.

The Board received prefiled testimony from the

11 IAWA as well as from Professor Thomas Murphy and the

12 Metropolitan Water Reclamation District of Greater

13 Chicago. We will begin this hearing by continuing where

14 we left off at our fourth hearing last April; that is,

15 with cross examination of the witnesses of the Illinois

16 Environmental Protection Agency and the Illinois

17 Department of Natural Resources. For that we will start

18 off with the prefiled questions filed by the

19 Environmental Law & Policy Center, followed by IAWA's

20 questions and then any other questions anyone else may

21 have for the witnesses of the Agency and DNR.

After that we will proceed with the testimony of

23 those who prefiled for this hearing; specifically, two

24 witnesses for IAWA and Professor Murphy. As Professor

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1 Murphy has a class obligation tomorrow, conferred with

2 the participants and they were good enough to accommodate

3 his scheduling conflict, so once we've completed the

4 cross examination of the Agency and DNR, Professor Murphy

5 will give his testimony and we'll have an opportunity to

6 pose any questions to Professor Murphy. After that we'll

7 proceed with IAWA's witnesses. So all those who have

8 prefiled will be sworn in and subject to cross

9 examination. We expect to hear prefiled testimony

10 tomorrow from the Metropolitan Water Reclamation

11 District. After we finish with questions for the

12 witnesses who prefiled later today, anyone else may

13 testify, time permitting. If you would like to testify

14 and you did not prefile, there's a sign-up sheet at the

15 back of the room. Like all witnesses, those who testify

16 will be sworn in and may be asked questions about their

17 testimony.

For the court reporter transcribing the

19 proceeding today, please speak up and try not to talk

20 over one another so that we can produce a clear

21 transcript. I would also ask that the first time you

22 speak today if you could state your name, your title and

23 the organization you're representing so the court

24 reporter can get that correct into the record. Are there

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1 any questions about the procedures we'll follow today?

MR. ETTINGER: Just one little one. I

3 assume my motion for leave to file prefiled questions was

4 granted?

HEARING OFFICER MCGILL: I was going to take

6 that up next. Have to give people a chance to object to

7 it. So with that, seeing there are no questions other

8 than Mr. Ettinger's about our procedure today, I would

9 ask the court reporter to swear in the witnesses of the

10 Agency and DNR collectively.

(Witnesses sworn.)

HEARING OFFICER MCGILL: Thank you. On

13 October 24, the Environmental Law & Policy Center filed a

14 motion for leave to file prefiled questions along with

15 the questions themselves for Agency and DNR witnesses.

16 Is there any objection to that motion for leave?

MS. WILLIAMS: We have no objection. Is

18 this on? The Agency has no objection, and we -- in fact,

19 we did prepare written responses, which we were planning

20 to read into the record, but we have copies if it would

21 help people to follow along, so --

HEARING OFFICER MCGILL: Great. Yeah, I

23 think that might be helpful. I -- Seeing no --

MR. HARSCH: On behalf of the proponents, we

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1 have no objection.

HEARING OFFICER MCGILL: Okay. Thank you.

3 As there's no objection, I'm going to grant that motion.

4 Mr. Ettinger, the attorney for the Environmental Law &

5 Policy Center, Sierra Club and --

MR. ETTINGER: Prairie Rivers Network.

HEARING OFFICER MCGILL: Prairie Rivers.

8 Sorry. I would ask just to make the transcript a little

9 easier to follow if you would read your questions and

10 then wait for the Agency or DNR response to each one. As

11 counsel for the Agency indicated, there are copies of

12 written responses to the prefiled questions, and --

MS. WILLIAMS: Do you want them?

HEARING OFFICER MCGILL: -- anyone who would

15 like a -- I -- you can -- the Agency is I imagine going

16 to move to have that entered as a hearing exhibit. Same

17 thing with prefiled questions. Let me take each one of

18 those, then. Prefiled questions, is there any objection

19 to entering the prefiled questions as a hearing exhibit?

20 These are the prefiled questions of Environmental Law &

21 Policy Center. Seeing none, we'll make that Hearing

22 Exhibit 29.

There's also a motion to enter as a hearing

24 exhibit the written responses of IEPA and DNR to the

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1 prefiled questions of Environmental Law & Policy Center,

2 Prairie Rivers Network and Sierra Club. Any objection to

3 entering that as a hearing exhibit? Seeing none, I'll

4 grant that motion, and that will be Exhibit 30.

5 Mr. Ettinger, if you would proceed with your questions.

MR. ETTINGER: Yes. I'm Albert Ettinger.

7 I'm here today representing the Environmental Law &

8 Policy Center of the Midwest, Prairie Rivers Network and

9 Sierra Club. Following the grant today of our motion to

10 file prefiled questions, I'm now going to read the

11 questions into the record, if I understand the procedure

12 properly. So the Environmental Law & Policy Center of

13 the Midwest, Prairie Rivers Network and Sierra Club

14 hereby pose the following questions regarding Attachment

15 A to the IEPA/IDNR filing of March 31, 2006, to the

16 Illinois Environmental Protection Agency and the Illinois

17 Department of Natural Resources. Regarding the proposed

18 definition of thermocline in proposed 302.100, "a," what

19 waters have thermoclines?

MR. FREVERT: Is this working now?

HEARING OFFICER MCGILL: You need to speak

22 directly into it or it doesn't --

MR. FREVERT: Can you hear me now?

HEARING OFFICER MCGILL: Yeah.

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MR. FREVERT: My name is Toby Frevert. I

2 represent the Illinois Environmental Protection Agency,

3 and I will read our predrafted answers to Albert's

4 questions into the record. His first question, our

5 answer is, waters that have thermoclines are waters that

6 seasonally thermally stratify and in which a maximum rate

7 of temperature change with depth can be determined by

8 measuring temperature at equal depth intervals from the

9 surface to the bottom.

MR. ETTINGER: Question 1b, for any water

11 that has any rate of decrease of temperature with respect

12 to depth, is there not by definition a plane of maximum

13 rate of decrease?

MR. FREVERT: In theory, yes.

MR. ETTINGER: "c," how, as a practical

16 matter, is it expected that the thermocline will be

17 determined? Will temperature measurements be taken? Are

18 there models or formulas that will be used in locating

19 the thermocline?

MR. FREVERT: In practice, Illinois EPA

21 expects that the thermocline will be determined by

22 measuring temperature at equal depth intervals from the

23 surface to the bottom.

MR. ETTINGER: 2, regarding proposed

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1 302.206(a), what is quiescent water?

MR. FREVERT: By quiescent, the Agency

3 intended to describe the state of motion of a water that

4 is still and where there is no or minimal mixing or

5 diffusion at the air/water interface.

MR. ETTINGER: What is an isolated water?

MR. FREVERT: The term "isolated sector" is

8 intended to describe a water body that is separate from

9 the main river or stream flow. It was not intended to

10 refer to the presence of dry areas between the main river

11 and the isolated sector.

MR. ETTINGER: What tests or criteria is it

13 expected will be used to determine if a water is

14 quiescent or isolated?

MR. FREVERT: Visual observations will be

16 used to determine whether a water body is quiescent or

17 isolated from the main flow of the river or stream.

MR. ETTINGER: I'm going to ask the next

19 three questions together. What waters are wetlands under

20 the proposed rule, what waters are sloughs under the

21 proposed rule, and what waters are backwaters under the

22 proposed rule? I'm sorry. And also, what waters are

23 lakes and reservoirs under the proposed rule?

MR. FREVERT: Regarding the single sentence

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1 in the proposed regulatory language that includes the

2 terms wetland, slough and backwater, Illinois EPA

3 intended merely to provide a general description and some

4 common examples of locations at which it is not necessary

5 to achieve the explicit numeric criteria to ensure

6 natural and healthy aquatic life. These types of

7 locations are outside of the main body of a stream or

8 outside of the area above the thermocline in waters that

9 seasonally thermally stratify. Illinois EPA does not

10 expect to be able to specifically identify all such

11 locations on a state-wide basis. In using the terms

12 "lake" and "reservoir," Illinois EPA intends that --

13 these terms to represent waters in which thermal

14 stratification occurs regularly on a seasonal basis and

15 in which a thermocline can be determined by measuring

16 temperature at equal depth intervals from the surface to

17 the bottom.

MR. ETTINGER: Does IEPA or IDNR have a list

19 of the reservoirs or lakes that are covered by this

20 provision of the proposed rule?

MR. FREVERT: No.

MR. ETTINGER: What standard applies to

23 lakes or reservoirs that are not thermally stratified?

MR. FREVERT: Section 302.206(b) of the

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1 draft recommended language applies to unstratified lakes

2 and reservoirs as Illinois EPA defines them in this

3 context.

MR. ETTINGER: What are the, quote, natural

5 ecological functions, unquote, of lakes and reservoirs

6 below a thermocline?

MR. FREVERT: Transformation and

8 decomposition of organic material and the mineralization

9 of inorganic particles.

MR. ETTINGER: What resident ecological

11 communities are natural below a thermocline in a lake or

12 reservoir?

MR. FREVERT: Benthos consists primarily of

14 midges and worms. Other dipterans may also use this zone

15 but are less common.

MR. ETTINGER: Are, quote, offensive

17 conditions, unquote, a violation of water quality

18 standards under the proposed rule if they occur in,

19 quote, wetlands, sloughs, backwaters or lakes and

20 reservoirs below the thermocline, unquote, or is it

21 intended to modify the application of Section 302.203 as

22 to such water bodies?

MR. FREVERT: Yes, offensive conditions

24 would be a violation of water quality standards under the

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1 proposed rule in these areas. This language is not

2 intended to modify the application of 35 Illinois

3 Administrative Code 302.203.

MR. ETTINGER: 3, regarding 302.206(d)(3),

5 "a," is it anticipated that under this rule that no

6 judgment will be made that a water body is attaining

7 dissolved oxygen standards unless data has been collected

8 sufficient to determine the daily minima?

MR. FREVERT: Speaking in general terms, if

10 a system supports good biological conditions and the DO

11 data that is available provides no indication that there

12 is a dissolved -- depressed oxygen condition, the Agency

13 may make a judgment that the standard is being attained.

14 If, however, there is a sign of oxygen stress upon the

15 biological community, data that suggests that oxygen may

16 drop below the daily minima during the anticipated low

17 concentration period -- typically early morning hours --

18 or otherwise indicates that the minima may not be

19 achieved, the Agency may make the alternative judgment.

20 If circumstances that -- circumstances require we go

21 beyond a probable judgment and make a definitive

22 determination one way or another, it will indeed require

23 that we have sufficient data to support that conclusion.

MR. ETTINGER: "b," how will compliance with

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1 the proposed standard be determined? With regard to

2 specific discharges? With regard to general assessments?

MR. FREVERT: Compliance determinations will

4 be made by direct measurement of the resource where the

5 standard applies. Compliance of specific discharges will

6 be based upon the enforceable discharge limitations

7 contained with each facility's NPDES permit. If by

8 general assessments the question refers to stream

9 assessments performed pursuant to the Clean Water Act

10 305(b) requirements, the Agency is assessing the degree

11 of attainment or support of the aquatic use. To the

12 extent that the aquatic community shows signs of

13 impairment, DO measurements will be used to determine

14 whether oxygen stress is a potential cause or contributor

15 to the observed impairment.

MR. ETTINGER: Under this rule, will IEPA

17 require pre-dawn DO monitoring of waters as a condition

18 for obtaining a permit to discharge biological

19 oxygen-demanding pollutants?

MR. FREVERT: Not as a general practice, but

21 potentially in some specific applications if determined

22 to be warranted.

MR. ETTINGER: Under these rules, will IEPA

24 require pre-dawn -- sorry. Oh. Under this rule, will

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1 IEPA require pre-dawn DO monitoring of waters as a

2 condition for obtaining a permit to discharge nutrients?

MR. FREVERT: Not as a general practice.

MR. ETTINGER: How do IEPA and IDNR use the

5 DO standard now in their programs?

MR. FREVERT: The Agency uses the DO

7 standard much the same way we use any other water quality

8 standard. It is a basis for assessments, permitting and

9 water quality certification programs, selection of

10 funding priorities for non-point source cost share

11 programs and of course an enforcement requirement in

12 compliance activities.

MR. CROSS: My name is Joel Cross, and I'm

14 the manager of the Watershed Protection Section at the

15 Illinois Department of Natural Resources. The Department

16 may use the DO standard in carrying out activities such

17 as the investigation into causes of fish kills, DO data

18 collection in lakes and reservoirs and natural resource

19 damage assessments.

MR. ETTINGER: 5, does IEPA intend to use

21 the DO standard in writing NPDES permit limits?

MR. FREVERT: Yes. The DO standard may be

23 used in some applications such as permits that set BOD

24 limits through the exception provisions of 35 Illinois

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1 Administrative Code 304.120 and permits that implement

2 waste load limits identified through a total maximum

3 daily load study. Additional information responsive to

4 these questions can be found in the transcript of the

5 April 26, 2006, hearing in this matter at pages 59 -- 53

6 through 89.

MR. ETTINGER: That concludes the prefiled

8 questions and answers.

HEARING OFFICER MCGILL: Thank you. Before

10 we proceed with the additional questions, I just wanted

11 to clarify, in the Agency's response to question 3b, the

12 reference to the Clean Water Act section, the written

13 response says Section 303(b). Mr. Frevert indicated

14 305(b). Which is it?

MR. FREVERT: 305(b).

HEARING OFFICER MCGILL: Thank you.

17 Mr. Ettinger, did you have any further questions?

MR. ETTINGER: Just one right now. In

19 response to question 1c, the response is, "In practice,

20 Illinois EPA expects that the thermocline will be

21 determined by measuring temperature at equal depth

22 intervals from the surface to the bottom." Is it

23 anticipated, then, that there will be a number of

24 different measurements or equal -- I guess I'm not quite

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1 sure what equal applies to here.

MR. SHORT: My name is Matt Short. I'm with

3 the Illinois EPA. I'm a field biologist in the Central

4 Monitoring Unit. On our lake surveys we do top to bottom

5 measurements of the water temperature, dissolved oxygen,

6 pH and conductivity. The way the method is written, we

7 take measurements every two feet, starting at the surface

8 and all the way to the bottom, until two feet off the

9 bottom.

MR. ETTINGER: Thank you.

HEARING OFFICER MCGILL: Any further

12 questions at this time, Mr. Ettinger?

MR. ETTINGER: No.

HEARING OFFICER MCGILL: Thank you. At this

15 point I will ask Mr. Harsch as attorney for the IAWA to

16 please proceed with your questions for the witnesses of

17 the Agency and DNR.

MR. HARSCH: We have no further questions.

HEARING OFFICER MCGILL: Okay. Why don't we

20 go off the record for a moment.

(Off the record.)

HEARING OFFICER MCGILL: Why don't we go

23 back on the record. The Board has some questions based

24 in part on some of the testimony we received from IAWA

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1 but questions that we wanted to pose to the Agency and

2 DNR while we had them collected here as witnesses. In

3 Dr. Garvey's prefiled testimony there is reference to

4 grab DO samples collected from 1994 through 2003 as well

5 as semi-continuous data logging probes from 2004 to 2005.

6 I believe these are Agency and/or DNR samples that are

7 currently Exhibit 22 in this rulemaking. What

8 conclusions -- Has the Agency and DNR analyzed any of

9 that data and arrived at any conclusions in terms of

10 whether it supports the current joint proposal from the

11 agencies?

MR. SMOGOR: My name is Roy Smogor. I am a

13 stream biologist with the Illinois Environmental

14 Protection Agency. I believe we addressed some of that

15 question in Exhibit 22, which was the letter of response

16 to the Illinois Association of Wastewater Agencies, and

17 if I can have a second, I'll review that and try to find

18 you what response that was. We talked about it in

19 response number 3 of Exhibit 22 and noted that for the

20 large majority of the general use sites located on or

21 near a segment selected for the higher level of DO

22 protection, the available grab sample dissolved oxygen

23 data showed little inability to meet the IDNR/IEPA

24 recommended daily minimum acute standard, and that large

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1 majority was 94 percent or more. Does that help?

HEARING OFFICER MCGILL: So that was

3 indicating that the proposed standard was not being met?

MR. SMOGOR: That indicated that there's --

5 For the most part, the grab data, which is limited --

6 because it is only grab data -- but for the most part,

7 the large majority of the grab data indicated that the

8 EPA/DNR recommended standards could be met.

HEARING OFFICER MCGILL: Could be met.

10 Okay.

MR. SMOGOR: In terms of the acute portion

12 of the standard.

MR. RAO: In that regard -- this is Anand

14 Rao -- in Dr. Garvey's prefiled testimony, he had made a

15 comment that most of the data, the grab data, were taken

16 during daytime, and it was not surprising that, you know,

17 even in his analysis, it showed that it met the proposed

18 standards. Do you have any comments regarding that

19 statement?

MR. SMOGOR: Yes. I think there may have

21 been some misunderstanding in Dr. Garvey's testimony

22 regarding how we looked at that -- how we looked at the

23 data to come to that conclusion, because when we came to

24 that conclusion, we limited the data, looking at the

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1 portion of the data set that was from 10 a.m. in the

2 morning or earlier, which is -- given the grab data was

3 taken primarily from 6:30 in the morning or later, we

4 limited the grab data to that portion of the early

5 morning to 10 a.m. and we only considered that portion of

6 the data set because that's the portion that is most

7 likely of the available data set to represent the daily

8 minimum.

MR. RAO: But do you think if you had grab

10 data during nighttime, the results would be different

11 than what you have stated in your response?

MR. SMOGOR: Yes, I think they would to some

13 extent. I don't know how much.

MR. RAO: Have you had an opportunity to

15 review Dr. Garvey's prefiled testimony and his analysis

16 of the grab data and the continuous monitoring data?

MR. SMOGOR: Yes.

MR. RAO: Do you have any comments or do you

19 agree with his findings?

MR. SMOGOR: I -- The only overall comment I

21 have is in reviewing that data, to me, I saw no

22 difference between applying -- in terms of asking the

23 question, is there a violation of a DO standard at this

24 location, in terms of answering that question, I saw no

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1 difference between applying the Illinois DNR/EPA

2 recommended standards versus applying the IAWA proposed

3 standards.

MR. RAO: Can you explain what you just

5 stated? I was not able to understand what you're --

MR. SMOGOR: The way I'm looking at it is

7 each of the sets of standards has some multiple

8 components. If any one of those components is not met,

9 then overall the standard is violated. That's how I'm

10 looking at it. If you ask that question, is the DO

11 standard violated at this location -- and if I'm not

12 mistaken, Dr. Garvey had six or so locations -- if you

13 ask that question, the answer to that question is the

14 same whether or not you apply the Illinois EPA

15 recommended standard in total versus applying the IAWA

16 standard in total. Does that help?

MR. RAO: Okay. Yeah.

HEARING OFFICER MCGILL: When you refer to

19 Dr. Garvey's six locations, are you now referring to IAWA

20 data or are you still talking about the Agency's grab

21 and --

MR. SMOGOR: No. I'm sorry. I'm talking

23 about in Dr. Garvey's latest testimony he introduced data

24 from the IAWA continuous monitoring, recent monitoring.

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MR. RAO: Actually, yeah, I was referring

2 to -- he also analyzed the continuous or semi-continuous

3 data that you -- the Agency or the DNR provided him, and

4 when he analyzed that, he found that the -- I think the

5 frequency of violations was significantly higher for

6 IEPA/DNR standard as compared to what IAWA --

MS. DIERS: I'm going to -- I'm sorry.

8 Stefanie Diers from Illinois EPA. Could you reference

9 what page you're --

MR. RAO: Yeah, I can tell you. It's

11 Dr. Garvey's testimony on pages 5 and 6.

MS. DIERS: Thank you.

MR. RAO: And also the results are on

14 Exhibit 3. It's an attachment to Dr. Garvey's testimony.

MR. FREVERT: Can I suggest if we're going

16 to have some lengthy discussion of Dr. Garvey's

17 testimony, maybe we should hear Dr. Garvey's testimony

18 before we get into that?

MR. RAO: We can do that, but, you know --

HEARING OFFICER MCGILL: Well, I think right

21 now we've got Agency and DNR witnesses sworn in, and at

22 the moment we're asking questions about Agency and DNR

23 data. I presume everybody's read the prefiled testimony

24 of Dr. Garvey, so I'm not sure that it's inappropriate at

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1 this stage to ask the sworn-in witnesses questions about

2 whether this information supports their proposal.

MR. YONKAUSKI: Maybe they'll withdraw it.

HEARING OFFICER MCGILL: I'm sorry?

MR. YONKAUSKI: Maybe they'll withdraw it.

MR. HARSCH: The Agency is withdrawing? Did

7 I hear you right that you're withdrawing the --

MR. YONKAUSKI: No, no, no, no.

MR. HARSCH: I'm sorry.

MR. SMOGOR: I -- If you're -- Are you

11 referring to Figures 2 and Figure -- Figures 2 and 3?

MR. RAO: Yes.

MR. SMOGOR: Okay. And can you -- may I

14 ask, can you repeat your question about that

15 particular -- any of those particular graphs?

MR. RAO: No. You just stated that whether

17 it's the Agency's proposed standard or IAWA's, there will

18 be violations in these streams.

MR. SMOGOR: And it took -- if I may, to

20 correct that, I was referring to data that are not being

21 addressed in these Figures 2 and 3.

MR. RAO: Yes, so --

MR. SMOGOR: I was referring to data that

24 was addressed later in Dr. Garvey's --

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MR. RAO: Yeah.

MR. SMOGOR: -- testimony here. Sorry.

MR. RAO: But now I wanted you to take a

4 look at this and see if there's a significant difference

5 in terms of how these -- the monitoring data that you

6 provided comes out in analysis in terms of the IAWA

7 standard and the Agency's standard.

MR. SMOGOR: Okay. If we look at Figure 3,

9 I can point out maybe some clarifications. In Figure 3,

10 that top line, I'd first like to point out that that

11 left-most point or right around 20 percent in the month

12 of July, about 75 percent of the observations that

13 contribute to that point are from only a single site in

14 the continuous data, so I'd like to point that out. I'd

15 also like to point out that the remainder of that top

16 line I don't think is relevant, because in August and

17 September, for those waters, the DNR/EPA recommended

18 standards are not 5. Actually, they are 4. So those two

19 points that continue that line are not as relevant as

20 that left-most point. In that regard, I don't think that

21 there's much difference between the DNR/EPA standards in

22 terms of applying them and the types of decisions about

23 what's going on in the water, applying the DNR/EPA

24 standards and the IAWA standards, because a lot of that

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1 graph then collapses to the comparison below, especially

2 with consideration that that upper left-most point is

3 largely driven -- that point is largely explainable by

4 what happened at a single site.

MR. RAO: Okay. But do you agree that this

6 monitoring data does show dissolved oxygen levels which

7 are lower than what you proposed for the enhanced streams

8 during -- especially during the early life stages?

MR. SMOGOR: Yes. There's some non-zero

10 occurrence of the proposed standard not being met at at

11 least one site. Or actually, I think it was three sites,

12 if I'm not mistaken.

MR. RAO: Do you see that as a concern in

14 terms of the justification for the enhanced standards?

15 If I can recall right, in the earlier Agency testimony,

16 you had indicated that, you know, comparing to some of

17 the Ohio streams where these sensitive fish existed, the

18 DO levels were significantly higher in the levels that

19 you propose the standard at, and here we are seeing lower

20 DO levels and Dr. Garvey's testimony claims that, you

21 know, there is still diverse aquatic assemblages in those

22 streams.

MS. WILLIAMS: I'm not sure if I understand

24 the question.

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MR. RAO: Let me --

HEARING OFFICER MCGILL: Let me -- Can I

3 try?

MR. RAO: Yeah.

HEARING OFFICER MCGILL: One of the main

6 points of the IAWA prefiled testimony seemed to be that

7 the Agency/DNR joint proposal proposed enhanced stream

8 segments of a level I tier standard and that that was

9 based on the types of fish that were found in those

10 Illinois stream segments, and those fish were selected

11 based on Ohio EPA information on finding those same fish

12 species in high DO concentration waters in Ohio. Is that

13 a correct statement? Or maybe you could --

MR. SMOGOR: Can I ask Joel to elaborate on

15 the --

MR. CROSS: Sure, if this is on here. Yeah,

17 that's in part what we started with in identifying DO

18 sensitive fish, was the Ohio report. When we started

19 that process and that step in the overall process, that

20 report, which is referred to in our TSD as Rankin 2004,

21 was provided to us from USEPA. We used that as the

22 starting point and tailored that to fish species that are

23 also living in Illinois but may not be living in Ohio, so

24 we used it as a starting point, but we had a lot of

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1 additional input from DNR fisheries biologists throughout

2 the state that helped modify that basic report from Ohio.

3 The macroinvertebrates and mussel DO sensitive species

4 did not utilize the Ohio report at all. Those were based

5 on other scientific data and information, and how that

6 was done is also explained in the TSD.

HEARING OFFICER MCGILL: Thank you. And I

8 guess one of the points that has been raised is for the

9 stream segments that have been identified for enhanced

10 protection, because these species are present there that

11 are reportedly DO sensitive, why are the DO levels from

12 those segments below the proposed joint agency standard

13 in some of the data or --

MR. FREVERT: The first comment is I'm not

15 sure we know why they're lower, but the fact that they

16 are lower doesn't mean it's a fully protective condition.

17 It's possible that DO sensitive organisms are in place

18 and under some degree of stress, still hanging on to

19 life, where we think a higher standard is appropriate

20 anyway pursuant to the Clean Water Act procedures and the

21 need for the standard to be protective. I don't think we

22 want to set a standard that's on the ragged edge so the

23 slightest little deviation from that standard has the

24 system collapse. So our recommendations do contain the

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1 notion that we want an incrementally higher DO for

2 aquatic communities that we know from the rest of our

3 biological science prefer higher DO conditions. That

4 doesn't mean that every system where those higher

5 organisms can live is at the water quality condition we

6 want or the standards we set, and that's my policy

7 perspective, but you can have the biologists elaborate on

8 that, but I want to make it clear that the fact that we

9 say a standard is warranted doesn't mean it has to be an

10 existing condition. We still know there are places out

11 there in Illinois where the DO and the other water

12 quality isn't what we want, and we want this standard to

13 help us identify those places and focus our attention on

14 improvements.

MR. RAO: Toby, while you are on this point,

16 just to follow up, in those segments where the DO levels

17 are maybe lower than the proposed standards, if these

18 rules are adopted, what will be the implication for those

19 segments? Will they be considered not meeting the

20 standard so they're impaired, or would you explain what,

21 you know, actions would be taken?

MR. FREVERT: If they're not meeting the

23 standard, they're not meeting the standard, and that has

24 a legal consequence. I think the joint recommendation

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1 we've put together with DNR tries to bring in some

2 pragmatism in that we still want to make sure our

3 standards are fully protective. The existing standard is

4 so far out there and overly protective, it's identifying

5 on a wholesale order streams that we need to focus on.

6 This standard ought to pare back that list and help us

7 find those places that really do need the attention.

8 There are streams in Illinois that have DO problems. We

9 think this recommendation will give us the better ability

10 to identify those streams with true DO problems versus

11 the existing large laundry list where there are DO flags

12 going off all over the place.

MR. CROSS: And maybe just to add a little

14 additional information to Toby's response to that

15 question, I think in general there can be a possibility

16 of a wide variety of different factors that account for

17 having DO sensitive species present and still an

18 excursion in the DO standard. A lot of those are going

19 to be driven by site-specific circumstances that are

20 going on at a site, so we can generalize what kind of

21 factors they may include that can account for that and we

22 can speculate which one of those may be at any given

23 site, but one of the things that we have observed and we

24 do have accounts of that occur on a site-specific level

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1 is they tend to seek refuges in other areas of the same

2 stream reach or in other tributaries during those periods

3 of DO excursion and then they'll return when the DO

4 conditions become more favorable. That's one factor that

5 may be involved, why you might see excursions but yet our

6 sampling at any given time may have these DO sensitive

7 species present. We also have to consider other factors

8 as well that may account for that, including the

9 magnitude and duration of the dissolved oxygen excursion.

10 The longer and the deeper the excursion of the DO

11 standard will affect that differently.

So there's a whole range of those types of

13 site-specific types of considerations that may account

14 for that, including where the probe is in comparison to

15 where the biological samples were actually collected,

16 things like that, a few examples. And I guess in terms

17 of this concept of them finding refuge in other areas, we

18 do have a field biologist here from DNR who can testify

19 to firsthand observations in the field of that

20 phenomenon.

MR. PESCITELLI: My name's Steve Pescitelli.

22 I'm a streams biologist with DNR in the northern section

23 of Illinois, and part of my responsibility is the Fox

24 River. These data were taken during 2004 or 2005 when

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1 there was extreme drought situation, there was an intense

2 alga bloom in the Fox River, and in our fall sport fish

3 sampling, we ran across the mouth of the creek and it was

4 extreme high density of fish, primarily large-bodied

5 suckers who are DO sensitive, so there's evidence that

6 they do actually find refuge in these areas where there

7 are higher oxygen. This was the mouth of Big Rock Creek,

8 which is a very high-quality stream. So I think a lot --

9 and just to add to that, a lot of these violations were

10 from the Fox River from 2005, and that was a fairly

11 unique situation even for the Fox River, which this is

12 admittedly -- and I spend a lot of time on the Fox

13 River -- it's one stream that's kind of in transition to

14 more of an urbanized stream, so keep in mind that we use

15 data going back to 1994 to look at the species that were

16 there, so it's possible this stream is actually in

17 transition, and it's only one of the many streams we

18 selected as for enhanced protection.

HEARING OFFICER MCGILL: Thank you very

20 much. Are there any additional questions for the

21 witnesses of DNR and the Agency?

MR. ETTINGER: Are -- I'm sorry.

HEARING OFFICER MCGILL: Mr. Ettinger?

MR. ETTINGER: Are counsel for DNR or the

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1 Agency going to ask any questions of their witnesses?

MS. WILLIAMS: Not at this point.

MR. ETTINGER: Okay. Well, I had one or

4 two, then. I wanted to follow -- I wanted to let other

5 people have a chance since I filed my prefiled questions.

6 I guess one question I had that I'd like to address to

7 the biologist is the issue of July breeding of certain

8 species and whether they could speak to the question of

9 the importance of the July breeding of some of the

10 species that may be sensitive to temperatures in that

11 month.

MR. PESCITELLI: Yeah, I can address that.

13 In our technical support document we provided the range

14 of breeding times for all host of species that are in

15 Illinois, and Dr. Garvey has evaluated this as well, and

16 it's clear there's a large number of species that spawn

17 following July 1. I'm referring to tables that look like

18 this in our technical support document. I can also refer

19 to a report by Dr. Garvey in December of 2005. It's

20 really an excellent analysis, although it was somewhat

21 biased. He actually compared two northern streams -- the

22 temperature regimes from two northern streams to the

23 temperature regime at two southern streams and compared

24 that to the spawning temperatures of Illinois fish, and

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1 his conclusion -- actually, that -- it is biased because

2 the two northern streams that he chose actually are not

3 typical of northern streams. One is Salt Creek, which is

4 probably the most urbanized stream in Illinois. It

5 doesn't have a normal temperature regime. And the other

6 is -- And the other one is Mazon River, which is one of

7 these direct tribs to the Illinois; because of the

8 geology has very little groundwater flow. It's dominated

9 by surface flow, so it also has a very unusual

10 temperature regime for a northern stream. A lot of our

11 northern streams have a lot of groundwater flow.

But anyway, even given that bias, he found that

13 50 percent of the taxa may only initiate spawning by late

14 June, so anyway, I think it's clear that there's lots of

15 species that spawn after July 1, and we can debate the

16 percentages, but there are a lot of them. And his other

17 statement was they contribute an insignificant amount to

18 the population because they're kind of the straggler

19 spawners, and actually, I would argue that's not true,

20 because these smaller stream and river fish, the way

21 they're spawning, to avoid high flow, and if you look at

22 the flow records, at least in northern Illinois, there

23 is -- June is a very high flow month and that the enemy

24 of a spawning fish is floods, and that may not be true in

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1 a large river system, but in a small river system it's

2 true, and these big flash floods disrupt the spawning act

3 itself, flush eggs into areas that are not suitable for

4 incubation.

So these fish actually delay spawning until July

6 and August when the flows are more stable. That's their

7 strategy, and for those species, they contribute the

8 largest portion of the population continuing into the

9 future, so there's a whole -- and there's a whole bunch

10 of these species now. They do, as Dr. Garvey said,

11 spread their spawning out, some of them, at least, and

12 the reason for that is to try to hedge against high water

13 flows, not, as he says, to hedge against dissolved oxygen

14 problems later in the season, because we don't see those

15 in a natural stream in August. We don't see dissolved

16 oxygen problems in a natural stream; at least I never

17 have. I have seen them in October and November. There's

18 a lot of leaf matter in the stream and there's no flow,

19 so they're not in a rush to get done before August

20 because there's no DO in August, because there is plenty.

21 So it's kind of a -- I think his analysis based on

22 reservoir fish and large river fish and small streams are

23 a lot different.

HEARING OFFICER MCGILL: I'm sorry. You

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1 referred to a report by Dr. Garvey or a study?

MR. PESCITELLI: Yeah. That's --

HEARING OFFICER MCGILL: I just wasn't sure

4 if that's already in the record, or if it isn't --

MR. PESCITELLI: It's called "Temperature

6 Effects on Spawning Timing of Illinois Fishes," December

7 12, 2004.

HEARING OFFICER MCGILL: That's a published

9 article?

MS. DIERS: No, it's not. I believe it's in

11 the record.

HEARING OFFICER MCGILL: If the DNR or

13 Agency would make that a hearing exhibit if it's not

14 already in the record. I just -- I didn't recognize it.

MR. HARSCH: I guess I have some follow-up

16 questions. Did the Agency or DNR --

HEARING OFFICER MCGILL: I'm sorry.

MR. HARSCH: Oh, I'm sorry.

HEARING OFFICER MCGILL: I was just

20 wondering if you knew if this particular report was in

21 the record or not.

MR. HARSCH: I think it is.

DR. GARVEY: Yeah, it is.

HEARING OFFICER MCGILL: It is in the

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1 record. Okay. Thank you. Was there more of a response

2 to that last question from -- Okay. Mr. Ettinger, I

3 think you were --

MR. ETTINGER: I guess I didn't have that

5 much more, although I -- this is a kind of difficult

6 thing with a panel here, but -- so what -- if I

7 understood that correctly, there is for a number of

8 Illinois fish in your view a value in spawning and having

9 a late spawn because of the flow conditions that may be

10 present prior to July. Is that -- Does that summarize

11 the situation?

MR. PESCITELLI: Yes.

MR. ETTINGER: Thank you.

HEARING OFFICER MCGILL: We just had a

15 follow-up question.

MR. RAO: I just had questions relating to

17 again Dr. Garvey's prefiled testimony regarding this

18 issue. Have you had a chance to look at his prefiled

19 testimony?

MR. PESCITELLI: From October 4?

MR. RAO: Yes. Yeah.

MR. PESCITELLI: Yes, I have.

MR. RAO: I think on page 3, on the first

24 full paragraph, Dr. Garvey notes that "Evidence is

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1 mounting that the majority of reproduction of aquatic

2 organisms in Illinois either occurs before July 1 or

3 late-spawning organisms have early life stages that are

4 tolerant to low dissolved oxygen concentrations," and he

5 cites to a master's thesis in support of his statement.

6 Have you had a chance to look at the attached thesis?

MR. PESCITELLI: Yes, I have.

MR. RAO: Could you comment on the findings

9 of those?

MR. PESCITELLI: Yeah, I was confused,

11 because I didn't see how that supported his statement,

12 because it was done by collection of larval fish in

13 Illinois River, which is a large floodplain river, and

14 the backwaters of Illinois River in southern Illinois, so

15 I wasn't sure how that supported mounting evidence that

16 the majority of reproduction -- which I'm not sure what

17 he means by reproduction, if that's just the spawning act

18 or development beyond the 30-day larval stage, but I was

19 unclear. And in fact, even in that report, the peak of

20 larval density was June 4 in southern Illinois, so you

21 can extrapolate that with lower temperatures in northern

22 Illinois being close to July 1.

MR. RAO: Okay. Thank you.

HEARING OFFICER MCGILL: Mr. Harsch?

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MR. HARSCH: Did the Agency or DNR do any

2 dissolved oxygen sampling this summer?

MR. SHORT: Yes, we did. We -- If you want

4 me to elaborate a little bit, we --

MR. HARSCH: No, just wanted to know if you

6 did it, because --

MR. SHORT: Yes.

MR. HARSCH: And you're aware that IAWA

9 asked for that sampling?

MR. SHORT: Yes.

MR. HARSCH: And you are aware that it was

12 not provided.

MR. SHORT: That's correct.

MR. HARSCH: Does the Agency or DNR have any

15 dissolved oxygen sampling data from the small streams in

16 northern Illinois that they'd care to put into this

17 record that would show that -- the dissolved oxygen

18 levels that the biologists have testified about?

MR. SHORT: We collected some in that area

20 this summer. We still have not compiled it for

21 distribution to anyone.

MR. HARSCH: So the record is devoid of any

23 data that would support the testimony, because I don't

24 think the record has any dissolved oxygen data regarding

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1 the small streams.

HEARING OFFICER MCGILL: Mr. Harsch, why

3 don't you pose that as a question.

BOARD MEMBER JOHNSON: "Is there."

MR. HARSCH: Is there any data in this

6 record, since every -- all the data that we've gotten

7 from DNR and IEPA, we don't believe --

MS. WILLIAMS: Are you asking --

MR. HARSCH: -- any of it applies to the

10 small streams.

MS. WILLIAMS: Are you asking specifically

12 about continuous monitoring data or any kind of data?

MR. HARSCH: Any data.

MR. PESCITELLI: Well, I'm confused, because

15 I didn't testify to a DO level.

MR. HARSCH: You testified that the DO

17 levels were being met; you didn't see any dissolved

18 oxygen -- you can read back the answer, but I believe you

19 testified --

MR. PESCITELLI: No, I testified on spawning

21 times.

MR. HARSCH: I believe you testified that

23 the dissolved oxygen levels were not a problem in July

24 and August.

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MR. PESCITELLI: Oh, based on my

2 experience --

MR. HARSCH: Correct.

MR. PESCITELLI: -- of observing fish.

MR. CROSS: And if I could just add a bit of

6 a response to that, as far as the debate about the DO

7 data, I think what we attempted to do with our analysis

8 in our joint recommendations was to look at the aquatic

9 life needs for DO. Whether those DO standards were met

10 or not, there -- we had enough evidence through the

11 biological data that a higher level of protection was

12 needed, and so it's -- you know, we really were focused

13 on what we needed to do with DO in terms of additional

14 protection for that aquatic life, whether it was

15 attainable in current standards or future standards or

16 whatever.

MR. HARSCH: I have a follow-up. This line

18 of testimony, responses to questions today, doesn't

19 change your responses to my questions that were in the

20 transcript of the April 25 hearing at page 92, Joel, when

21 you responded in coming up with the enhanced water

22 proposal, you did not look at any dissolved oxygen data,

23 correct?

MR. CROSS: Correct.

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MR. HARSCH: You didn't look at any water

2 temperature data.

MR. CROSS: That's correct.

MR. HARSCH: Nor did you look at any habitat

5 data.

MR. CROSS: That's correct, and there's a

7 reason for that, and we -- I believe at the last hearing,

8 in the transcripts you're referring to, the question was

9 related to whether or not those level I waters that we

10 were recommending were considered cool, and the response

11 was basically no, and an equal response is that they are

12 not least-disturbed waters or high-quality waters either.

13 Now, if that was our objective, we would have used some

14 of that other data, including the habitat data, to

15 determine if they were least-impacted streams or not, but

16 that's not what the level I waters are. They're simply a

17 set of waters where we have biology that requires an

18 incrementally higher DO level.

HEARING OFFICER MCGILL: Any further

20 questions? Okay. I'll just ask if anyone present has

21 any questions for the witnesses of the Agency or DNR.

22 Why don't we go off the record for a moment.

(Off the record.)

HEARING OFFICER MCGILL: Okay. Why don't we

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1 go back on the record. No one has indicated they have

2 any further questions for the witnesses of the Agency and

3 DNR, so I'd like to thank them very much for their

4 participation today. At this point I would ask if

5 Professor Murphy could come up and give his testimony.

6 We'll have a question period and then we'll proceed with

7 the witnesses of IAWA and questions for those two

8 witnesses.

Mr. -- Professor Murphy, if you wouldn't mind

10 coming up and taking a microphone, if we can find a chair

11 for you.

MR. ETTINGER: Could we take, like, a

13 five-minute break to rearrange the furniture here?

HEARING OFFICER MCGILL: Sure. Why don't we

15 go off the record for a moment.

(Brief recess taken.)

HEARING OFFICER MCGILL: Why don't we go

18 back on the record. Would the court reporter please

19 swear in Professor Murphy?

(Witness sworn.)

HEARING OFFICER MCGILL: And, Professor

22 Murphy, would you like to have your prefiled testimony

23 entered as if read and made a hearing exhibit?

PROFESSOR MURPHY: Yes, I would appreciate

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1 that.

HEARING OFFICER MCGILL: For the record, is

3 there any objection to this motion? Seeing none, I grant

4 that motion, and I will mark the prefiled testimony of

5 Professor Murphy as Hearing Exhibit 31. That's now been

6 entered as if read, so, Professor Murphy, if you wanted

7 to provide additional testimony, you may do so now.

PROFESSOR MURPHY: Yeah, I appreciate that.

9 I would just like to make some comments on some of the

10 other prefiled testimony. First, on the prefiled

11 testimony of Mr. Kollias from the Metropolitan Water

12 Reclamation District, he indicates that, speaking to the

13 USEPA 1986 criteria document where it talks about the

14 International Joint Commission, reviewed DO criteria for

15 the Great Lakes, the Commission concluded that a simple

16 criterion based on dissolved oxygen concentration was

17 preferable to one based on percent saturation and was

18 scientifically sound because the rate of oxygen transfer

19 across fish gills is directly dependent on the mean

20 concentration in oxygen partial pressure across the gill

21 and this is directly proportional to dissolved oxygen

22 concentration.

While I agree with that, I think it's actually

24 the reverse, the dissolved oxygen concentration is

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1 proportional to the partial pressure, but that is true in

2 any specific temperature, and the problem is that if you

3 take a fixed dissolved oxygen concentration at different

4 temperatures, then that's no longer true. For instance,

5 5 milligrams per liter of oxygen at 30 degrees would be

6 67 percent saturated, and at 0 degrees it's 34 percent

7 saturated, so the oxygen transfer rate would differ by a

8 factor of 2.

Secondly, Mr. Kollias makes a statement that

10 "Using dissolved oxygen saturation by itself could result

11 in situations in 100 percent DO saturation at high

12 temperatures with concentrations that are still harmful

13 to fish and invertebrates." This is not a believable

14 statement. 100 percent saturation is the maximum

15 concentration of oxygen in equilibrium with the air, the

16 oxygen content of the air, and this has been true

17 throughout all history. This incredulous statement is

18 just another example of the misguided reliance -- of the

19 effects of a misguided reliance in milligrams per liter

20 and how this distorts reality with respect to dissolved

21 oxygen and its availability to organisms.

Mr. Kollias also states that "In low

23 temperatures, dissolved oxygen saturation could be very

24 low, yet waters could still have sufficient

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1 concentrations of DO and be nonlimiting to the aquatic

2 ecosystem." Well, he presents no evidence for that. He

3 doesn't say what low and high means. It's just a

4 statement about low temperatures.

He states later on, "In addition to these points,

6 dissolved oxygen concentration must be utilized in the

7 standard because it is possible to control DO

8 concentration through management practices by

9 supplemental aeration and other mechanical means," and he

10 continues, "It's much more difficult to control oxygen

11 tension," 100 percent saturation, "and oxygen saturation

12 can be extremely variable." Again, this is not a

13 believable statement. At any specific temperature there

14 is an -- the proportionality -- the proportional

15 variability in milligrams per liter of dissolved oxygen

16 is the same as the proportional variability in the

17 percent saturation of dissolved oxygen to more than 14

18 significant figures. It's a one-to-one relationship. If

19 one is variable, the other one is exactly as variable.

And finally, he quotes Davis. Davis (1975)

21 states that "It must be emphasized that fish require both

22 the correct oxygen tension -- pressure -- gradient to

23 move oxygen into the blood and sufficient oxygen

24 concentration -- amount per volume of water breathed --

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1 to fulfill the requirements of metabolism." I agree, and

2 that's the point I've been trying to make over these past

3 hearings. I'm pleased that Mr. Kollias and the

4 Metropolitan Water District of Greater Chicago agree with

5 my position. Thank you, Mr. Kollias.

Secondly, a comment on proposed setting -- the

7 method for setting standards that Dr. Garvey has

8 presented. Dr. Garvey indicates that the Board should

9 use Liebig's Law as a minimum to set the water quality

10 standards for dissolved oxygen in general use waters in

11 Illinois. The assumption is that the species that are

12 observed in a situation are only those that could or

13 would be present. The question is, why are the

14 conditions which are now observed have existed in the

15 past and have already caused the decline and

16 extravasation of indigenous aquatic organisms? Secondly,

17 different organisms have a wide range of environmental

18 requirements, and some of them or many of them have

19 requirements that we might not yet exactly know.

In addition, all water quality measurements have

21 uncertainty attached to them. Thus, a good science-based

22 water quality standard could include some safety factor

23 to give robust protection to the indigenous aquatic

24 organisms. A standard based solely on the law of the

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1 minimum would not provide such protection. For example,

2 if the Illinois EPA were setting an ambient standard for

3 human exposure to a toxic substance, say mercury or PCPs,

4 would Mr. Frevert sent his investigative troops out to

5 sample the cities and towns and hamlets of Illinois to

6 find that location in the state with the highest

7 concentration of the toxin of interest where people still

8 survived and make that concentration the ambient standard

9 for the state? I hope not. That would put the

10 enforcement people out of business, because everybody

11 would be below the standard. I urge the Board not to

12 base the rulemaking on the application of Liebig's Law of

13 the Minimum. Thank you very much.

HEARING OFFICER MCGILL: Thank you,

15 Professor Murphy. Are there any questions for the

16 witness?

MR. ETTINGER: I have one.

HEARING OFFICER MCGILL: Mr. Ettinger?

MR. ETTINGER: Yes. Dr. Murphy, as I

20 understand it, what your testimony is is that we're wrong

21 to just focus on milligrams per liter of dissolved

22 oxygen; we should also be looking at percent saturation.

PROFESSOR MURPHY: Yes.

MR. ETTINGER: How would you propose that

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1 the standard be modified to take into account this

2 percent saturation factor that you're looking at?

PROFESSOR MURPHY: Well, one of the problems

4 with the proposed standard is both of the time periods

5 overlap those cold months of the year and warm months of

6 the year, two six-month time periods, so what I would

7 propose is that during the cold months of the year,

8 perhaps December through March, that the standard be

9 based on percent saturation and a -- Davis in his

10 proposed standards, his standard for level B organisms

11 proposes a 47 percent saturation for the lower

12 temperatures. For a temperature range of 0 to 10

13 degrees, this would turn out -- this would work out to

14 about 6 milligrams per liter, and if we add a little bit

15 for -- provide some protection, maybe -- so I would

16 propose a standard of 6 and a half milligrams per liter

17 for the cold months of the year.

MR. ETTINGER: So as I understand it, this

19 is -- because of the way the chemistry works, this is

20 just a matter of math, and we could -- if we wanted to

21 state -- continue to state our standard in a milligrams

22 per liter, we could do so, but we'd have to use 6.5 for

23 the cold winter months rather than the current milligram

24 per liter figures.

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PROFESSOR MURPHY: Yes, and that's --

2 there's no magic here; that these continuous oxygen

3 sensors, what they actually sense is the percent

4 saturation, and they go through a procedure of

5 downgrading the data where you lose the temperature

6 information and then convert it to these milligrams per

7 liter, which you then -- which is not what the fish

8 experience, so going with the data that's frequently

9 collected would be a more direct way of doing it.

MR. ETTINGER: Okay. So that would lead to

11 a 6 or a 6.5 for January, February and March as opposed

12 to what the IAWA proposal is and the Agency proposal.

PROFESSOR MURPHY: And the 6.5 is 47 percent

14 saturation at 5 degrees centigrade.

MR. ETTINGER: Thank you.

MS. WILLIAMS: Can I ask just for the

17 record, when you were saying 0 to 10 degrees, are we

18 talking Celsius or Fahrenheit?

PROFESSOR MURPHY: Yes.

MS. WILLIAMS: Celsius.

PROFESSOR MURPHY: There's not much water at

22 0 degrees Fahrenheit.

MS. WILLIAMS: And when you recommended the

24 number, were you talking about a minimum or some type of

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1 average?

PROFESSOR MURPHY: Minimum. I might point

3 out that in -- with Mr. Kollias' testimony, he provided a

4 number of DO measurements, and even the infamous Bubbly

5 Creek would meet that standard -- or met the standard in

6 December '05 and January '06. If Bubbly Creek can meet

7 the standard, there's hope for the rest of the rivers in

8 the state.

MR. ETTINGER: I'm sorry. My friend here

10 has pointed out that December is also part of winter, a

11 concept I had forgotten, so I should clarify whether you

12 would want your higher standard or -- to apply for

13 December as well as January, February or March, or just

14 January, February and March.

PROFESSOR MURPHY: Well, my proposal would

16 be that for waters below 10 degrees, the standard has

17 been met, whether those occur in July or whenever.

MR. ETTINGER: If it occurs in July, we're

19 in trouble for other reasons. Thank you.

HEARING OFFICER MCGILL: So, Professor

21 Murphy, your suggestion would be based on water

22 temperature, not any particular month of the calendar

23 year.

PROFESSOR MURPHY: My recommendation to the

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1 Board I guess would be on water temperature.

HEARING OFFICER MCGILL: Are there any

3 further questions for Professor Murphy?

MS. WILLIAMS: The Agency doesn't have any

5 other questions. Thank you.

HEARING OFFICER MCGILL: Thank you. Seeing

7 none, I would like to thank Professor Murphy for

8 appearing today to testify and answer questions. Thank

9 you.

PROFESSOR MURPHY: Thank you.

HEARING OFFICER MCGILL: Let's go off the

12 record for a moment.

(Brief recess taken.)

HEARING OFFICER MCGILL: We're going to go

15 back on the record, and just before we turn to IAWA's

16 witnesses, I just want to remind the Agency and DNR

17 witnesses that they're sworn in. We have one follow-up

18 question if it's okay. You're indicating no, but I'll

19 ask it anyway.

MR. YONKAUSKI: Who's it from?

HEARING OFFICER MCGILL: From our technical

22 unit, after conferring.

MS. WILLIAMS: We tried to convince them

24 that the technical staff's not supposed to ask questions,

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1 so -- for our people, so --

HEARING OFFICER MCGILL: Good luck with

3 that.

MR. RAO: I think this question is for

5 Mr. Frevert, more of a policy type question. Dr. Murphy

6 recommended that the Board adopt a standard based on

7 percent saturation of oxygen, and this witness provided

8 some testimony regarding, you know, some practical

9 observations that it may not be a good idea. We wanted

10 to hear from the Agency, who will be implementing these

11 standards, as to what their thoughts are on the

12 practicality of implementing these standards and if there

13 are any financial implications also.

MR. FREVERT: I'm sure there would be, and

15 quite frankly, I haven't analyzed that in a lot of detail

16 yet, nor do I anticipate I would. Concentration-based

17 standards are the predominant approach most states rely

18 on. I recognize the merit and the chemistry of what he's

19 talking about, but from my experience and what my

20 biologists tell me that the absolute concentrations of

21 oxygen have a pretty good correlation and relationship to

22 what we feel is necessary to protect the organisms. A

23 percent saturation approach may accomplish the same

24 thing, but our program activities are -- have not been

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1 developed around that approach. There would obviously be

2 some impact and ramification that I'm not well enough

3 versed on to quantify for you, but there would be some

4 disruption. Even beyond whether or not technically it's

5 the best way to go, there are some programatic concerns I

6 would have.

MR. ETTINGER: If I could just follow up on

8 that.

HEARING OFFICER MCGILL: Go ahead.

MR. ETTINGER: Do you agree that there's

11 more or less a mathematical relationship between the

12 percent saturation and the DO concentration?

MR. FREVERT: Yeah, I agree with that.

MR. ETTINGER: Would there be any

15 difficulty, then, if we wanted to follow Dr. Murphy's

16 approach of continuing to state the standard in a

17 milligram per liter term but taking into account his

18 saturation effect by requiring a higher milligram per

19 liter when the water was very cold?

MR. FREVERT: I don't know that there would

21 or would not be an impact, but I'm not convinced under

22 the colder water that the needs of the organisms are

23 necessarily correlated. Typically we have winter ice

24 cover situations periodically in small ponds and

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1 sometimes you get winter fish kills from oxygen depletion

2 under ice cover. My experience and recollection over the

3 years in those circumstances, the DO that resulted in

4 those fish kills and those upsets were quite a bit below

5 that 6 and a half figure he referenced, so I'm not sure

6 that relates actually to the environmental end points

7 we're trying to achieve.

MR. ETTINGER: Okay. Well, I don't want to

9 go on too much on this, except I would say that probably,

10 though, because of the low temperature under that ice, we

11 are probably talking about a higher concentration than

12 you would expect otherwise, right?

MR. FREVERT: I don't think so. The

14 temperatures are low but there's -- particularly in some

15 of those shallower lagoons and things, there are still

16 other biological functions taking place that are

17 consuming oxygen.

MR. ETTINGER: So you're actually seeing

19 numbers below 3 in those ponds?

MR. FREVERT: In those places where there

21 are fish kills. Again, you've got an ice cover, so

22 there's not any oxygen transfer across that air/water

23 interface, so other chemical and biological processes

24 taking place in that lagoon or pond, while they may be

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1 reduced under lower temperatures, they're not stalled out

2 altogether, so there is organic breakdown taking place.

HEARING OFFICER MCGILL: Thank you very

4 much. With that, would the court reporter -- we're going

5 to turn now to the IAWA's testimony, and I would ask the

6 court reporter to please swear in the IAWA's witnesses

7 and attorney collectively.

(Witnesses sworn.)

HEARING OFFICER MCGILL: Thank you. And now

10 IAWA's counsel, Mr. Harsch, if you would begin the

11 rulemaking proponent's presentation.

MR. HARSCH: Sure. Roy Harsch, Gardner,

13 Carton & Douglas, attorney for Illinois Association of

14 Wastewater Agencies. At this point in time I'd like to

15 call Dennis Streicher. And, Dennis, if I show you a copy

16 of your prefiled testimony, is that the testimony that

17 you prepared?

MR. STREICHER: That is it.

MR. HARSCH: I would move that the prefiled

20 testimony of Dennis Streicher be accepted into evidence

21 as Exhibit 32.

HEARING OFFICER MCGILL: Is there any

23 objection to the motion to have entered as if read and

24 made a hearing exhibit the prefiled testimony of Dennis

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1 Streicher?

MR. HARSCH: I'm moving it for exhibit.

3 Mr. Streicher is going to read the testimony.

HEARING OFFICER MCGILL: Okay. There were

5 no attachments to his prefiled testimony, as I recall.

MR. HARSCH: The prefiled testimony itself

7 has been subject to questions. That's why I'd like to

8 have it read into the record.

HEARING OFFICER MCGILL: Yeah. It would be

10 Exhibit 32, as I understand the motion.

MR. HARSCH: Yes.

HEARING OFFICER MCGILL: But typically the

13 prefiled testimony is also considered read into the

14 record as if read, but if he's going to read it, we can

15 simply make it a hearing exhibit. Any objections to

16 making that prefiled testimony Hearing Exhibit 32?

MS. WILLIAMS: No.

HEARING OFFICER MCGILL: Seeing none, I

19 grant that motion.

MR. HARSCH: And, Mr. Streicher, it's your

21 desire to read your testimony today?

MR. STREICHER: Yes, it is.

MR. HARSCH: Will you please commence and

24 present your written testimony?

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MR. STREICHER: Thank you. I'd also like to

2 thank the Illinois Pollution Control Board again for

3 hearing my testimony. My name is Dennis Streicher. I'm

4 director of water and wastewater with the City of

5 Elmhurst, Illinois. I've been employed by the City of

6 Elmhurst since 1972. For the last 20 years I've managed

7 the wastewater plant, public water supply and the

8 stormwater system in Elmhurst. I hold an Illinois EPA

9 Class I operator's license and Illinois EPA Class A

10 potable water operator's license. I'm representing the

11 Illinois Association of Wastewater Agencies, IAWA. Our

12 member water pollution control agencies represent over 70

13 percent of the people in Illinois. I was the president

14 of IAWA from 2004 to 2005.

The IAWA began the process to update and fix the

16 Illinois dissolved oxygen -- DO -- standard over five

17 years ago. I believe at this point we have convinced

18 almost everyone that indeed it does need fixing. At the

19 first hearing in this proceeding, Toby Frevert said that

20 this might be the most important of recent decisions the

21 Board will be making. At the second hearing held in

22 Springfield, Bob Mosher of Illinois EPA -- IEPA --

23 described the existing dissolved oxygen standard as

24 broken.

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In his testimony at the last hearing, Roy Smogor

2 said that IEPA believes -- and I quote -- "The current

3 dissolved oxygen standard for Illinois general use waters

4 is too simplistic. The current standard inadequately

5 accounts for the varied dissolved oxygen requirements of

6 aquatic life in Illinois waters. Moreover, the current

7 standard does not account for how dissolved oxygen

8 concentrations vary across a broad range of natural

9 aquatic conditions in Illinois," end quote. As an

10 alternative, Mr. Smogor represented the Illinois

11 Department of Natural Resources -- IDNR -- and IEPA

12 recommendation for revisions to the standard, the joint

13 IDNR/IEPA proposal.

It does seem that we've convinced most everyone

15 that the existing dissolved oxygen standard is broken and

16 indeed does not represent the complex dissolved oxygen

17 patterns that occur in healthy river systems and that it

18 needs to be modified. It has taken a long time and

19 considerable effort and expense on IAWA's part to get to

20 this realization.

IAWA members knew five years ago that the

22 dissolved oxygen standard was incorrect. We had worked

23 with the existing rule and knew that it is unattainable,

24 even in those Illinois waters that are among the least

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1 impacted by human activities. Our goal was to design a

2 DO regulation that met a few crucial criteria: That it

3 represents accurately what is expected in the

4 least-impaired waters in the state; that the design of

5 the rule be both enforceable by IEPA and be protective of

6 all life stages of all the vertebrate and invertebrate

7 life found in the surface waters of Illinois; and that it

8 have the fundamental strength of being based in good

9 science.

We met with folks in the IEPA to discuss our

11 planned effort. We commissioned Dr. Whiles and

12 Dr. Garvey to search the literature and draw from their

13 own knowledge and experience to craft the best standard

14 possible. They were careful to adhere to the United

15 States Environmental Protection Agency -- USEPA -- 1986

16 national criteria document and have been in contact with

17 the author of that document and solicited comments from

18 him. They spent over two years at this effort and in

19 April 2004 published "An Assessment of National and

20 Illinois Dissolved Oxygen Water Quality Criteria." Even

21 when still in draft form, IAWA circulated copies of the

22 study to IEPA, citizen groups such as Sierra Club and

23 Environmental Law & Policy Center, the IDNR and others.

24 This was an effort to reach out to interested parties and

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1 seek comments. We received none. We filed our petition

2 on April 14, 2004, and were promptly criticized for not

3 first having stakeholder discussions.

After the first hearing on June 29 of 2004, we

5 initiated the requested stakeholder discussions. I was

6 hoping then that we could begin serious and directed

7 discussions to defend our position and present the data

8 supporting the IAWA petition. I'm sorry to say that

9 looking back on it that during the first year of

10 stakeholder meetings, our efforts were not taken very

11 seriously by some of the folks at the table. The initial

12 opposition was from the IDNR Natural History Survey --

13 the NHS -- and the environmental groups. There were

14 others in IDNR who supported the needed revision and some

15 others who were opposed as well. I think that as time

16 went on and those folks continued to attend the meetings,

17 they gradually were convinced that the IAWA proposal was

18 sound. Unfortunately, they were ultimately unable to

19 convince their counterparts in their respective agencies.

20 The stakeholder discussions really led us nowhere. Not

21 everyone was yet convinced that the standard needed

22 fixing.

As the second hearing transcript clearly shows,

24 all who had been involved to date were totally surprised

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1 by the participation of the representative from the

2 Lieutenant Governor's office and the letter and testimony

3 of Dr. Thomas from NHS. Neither had participated in the

4 stakeholder group meeting held the morning of the

5 hearing. IAWA had also recently spent several hours

6 meeting with Mr. Miller with Dr. Garvey on the phone to

7 explain IAWA's position at his request.

At the third hearing, after numerous stakeholders

9 meetings were again -- we were again surprised by

10 continuing opposition from NHS in testimony filed by

11 Dr. Thomas, which was subsequently withdrawn by IDNR.

12 There clearly was continuing disagreement between the

13 IDNR and IEPA on this petition. The different positions

14 taken by IEPA and IDNR and fueled by apparent

15 disagreements between divisions within IDNR have taken a

16 long time to resolve.

At the last hearing we saw that there was some

18 resolution to those disagreements. I'd like to

19 compliment both EPA and DNR for the enormous effort they

20 have put into this matter. Individuals within both

21 agencies have worked extremely hard. There has been a

22 huge commitment of staff time devoted to working out the

23 differences between those two important state agencies.

24 I don't believe that was a very easy process.

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It was apparent early on that there are slightly

2 different perspectives between the two agencies. The

3 IDNR has said that protection of Illinois natural

4 resources is their responsibility. I appreciate that

5 position and support it. They should focus on protecting

6 natural systems, enhancing habitats and ensuring that the

7 resources of the state are there for everyone, present

8 and the future. The IEPA, on the other hand, have a

9 slightly different mandate. Historically IEPA has

10 developed and proposed the regulations that are both

11 protective of the environment and are attainable by the

12 regulated community. It would obviously be pointless to

13 develop a rule that no one can meet. This is, I think,

14 the source of the different perspectives between the two

15 agencies. They aren't opposed to each other, but they

16 have approached this petition from slightly different

17 viewpoints. IDNR wants to be as protective as possible

18 while IEPA needs to be -- needs an enforceable and

19 attainable rule that is as protective as necessary. The

20 DO standard which is finally adopted in this proceeding

21 should be a sound dissolved oxygen regulation that will

22 be used in the development of use stream classifications.

23 It will be utilized by IEPA in classifying streams as to

24 attainment or impairment. It will be used in the

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1 development of TMDLs and the basis for future nutrient

2 rulemaking. It will also be used in other decisions by

3 other agencies.

I pointed out in my introduction that I manage

5 both the wastewater utility and the public water supply

6 in my community. The source of the different

7 perspectives regarding regulations between the IDNR and

8 IEPA is reminiscent of what I've seen in potable water

9 regulations. The Safe Drinking Water Act has two sets of

10 numbers for many contaminants found in drinking water.

11 There are maximum contaminant levels that set regulatory

12 limits that are enforceable and there are maximum

13 contaminant level goals. The goals are where we'd like

14 to be but can't get there yet because either the

15 technology doesn't exist or the costs far outweigh the

16 benefits. This analogy is not precisely correct, but I

17 think it illustrates a bit of what I've seen over the

18 last year or more. IDNR would like to have in place

19 regulatory goals that are as protective as possible while

20 IEPA needs to have regulations that can be reasonably

21 attained and enforced.

As explained to me by both IEPA Director Doug

23 Scott and IDNR Deputy Director Leslie Sgro, the

24 Governor's office directed the two agencies to find some

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1 common ground and not present positions at odds in this

2 proceeding. Eventually staff were assembled who could

3 address the IAWA petition seriously and a new round of

4 meetings were scheduled while they worked out what is now

5 the joint IDNR/IEPA proposal. I wouldn't describe these

6 meetings as being stakeholder meetings. The group was

7 larger than ideal for this sort of discussion. We

8 weren't usually apprised of what the data would be

9 presented before attending the meetings, and I'm sorry to

10 say that in my opinion, we were not given the opportunity

11 to have meaningful input. The actual discussions seemed

12 very limited. What we did see from those meetings,

13 however, was a morphing of the NHS position from total

14 opposition to a general acceptance of the IAWA proposal

15 and with limited agreement on the DO numbers and dates

16 for the different DO concentrations.

That morphing culminated in the submittal of the

18 joint IDNR/IEPA proposal filed with the Board at the last

19 hearing. It has some of the basic design features of the

20 original IAWA proposal. The two agencies have proposed a

21 seasonal DO standard. They agree with the IAWA concept

22 of averaging the DO measurements. There is an

23 understanding that there is an absolute minima and there

24 is an average low that can be tolerated by the organisms

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1 in the rivers. I think that the basic design of the IAWA

2 proposal and many of the numbers were finally being

3 accepted as being mostly on target by the agencies. I'm

4 sorry to say, however, that there were some other things

5 thrown in the joint IDNR/IEPA proposal that IAWA cannot

6 accept. We believe that these should be rejected by the

7 Board for the reasons I will discuss.

The added feature I'm most concerned about are

9 the concepts of an enhanced dissolved oxygen

10 concentration for selected river segments. I suspect the

11 idea for selecting particular river segments for a

12 different standard may have come from the first round of

13 stakeholder meetings. During a stakeholder discussion,

14 when it seems as though all of the participants are at an

15 impasse, it has been my experience that suggesting some

16 new concepts or new ideas might help stimulate discussion

17 and get the participants over the impasse. During one of

18 those impasses early on in the stakeholder process, IAWA

19 suggested that there might be rivers in Illinois that

20 would be deserving of a DO standard that was different

21 than the rest of the state. Since we couldn't agree on

22 all the details of the IAWA petition, IAWA proposed to

23 retain the existing standard for some list of waters

24 until work could be completed that would identify how to

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1 appropriately classify those waters and determine what

2 standard should be adopted for those waters. We felt

3 that we could introduce the goal that IAWA would

4 eventually like to see the surface waters in Illinois

5 categorized by attainable uses. This would in an

6 appropriate method to assign water bodies to appropriate

7 categories and would include different DO standards

8 assigned to each category. IAWA and those attending the

9 meeting understood that arriving at just what those

10 standards would be is a very complex process. No

11 agreement on this suggestion was reached.

Since those initial shareholder meetings, IAWA,

13 again at its expense, has begun to move forward to

14 develop what we hope will be a regulatory proposal to

15 replace the present one-size-fits-all water quality

16 standard approach with tiered use criteria and

17 appropriate standards.

The IAWA effort includes participation of various

19 stakeholders, including IDNR, IEPA, USEPA and various

20 environmental groups. We have formed a tiered use

21 committee and retained a consultant to begin the process.

22 This committee has already started to identify what the

23 various appropriate categories should be in Illinois

24 based on existing and attainable uses. After this first

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1 step, we will develop what the various water quality

2 standards, including dissolved oxygen concentrations,

3 should be for each category.

At the September 2006 IAWA annual conference,

5 Toby Frevert spoke and provided an IEPA update. During

6 his presentation he was asked about the tiered use

7 effort. His response was that it's a difficult process

8 that will take a long time. He asked that IAWA stay

9 involved and do what it can to assist the IEPA as we work

10 out this important addition to Illinois environmental

11 policy and regulations.

This is indeed a complex process, and we expect

13 this to be a long and laborious effort. Yet in their

14 testimony at the last hearing, the joint IAWA/IEPA -- I'm

15 sorry -- IDNR/IEPA proposal, the IDNR and IEPA are

16 suggesting we move to a two-tiered dissolved oxygen

17 standard now. The agencies recommended to the Board that

18 the current dissolved oxygen standard be replaced with

19 two levels of standards, each level applying to one of

20 two sets of Illinois waters. One is a general use

21 standard, which fairly closely follows the IAWA proposal,

22 and the other is a higher-level standard that would apply

23 to a subset of waters that were identified in the

24 testimony.

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As I said, all of this is very complex. There is

2 much to be learned about all of these relationships. The

3 tiered use work underway by IAWA with participation from

4 DNR and EPA is the correct approach to resolving and

5 addressing these complexities. Recently the IEPA

6 circulated a white paper suggesting biological criteria

7 as a useful tool to identify different categories. That

8 will possibly be the best approach to take. It is used

9 in other states and seems to be a reasonable approach to

10 establish use categories.

Establishing a variety of specific numeric

12 standards for constituents such as DO without adequate

13 data to support them is recreating a flawed and

14 unworkable standard. I'd like to caution the Board to be

15 very careful about adopting an arbitrary tiered use or

16 what is called a higher level of waters in Illinois. The

17 dissolved oxygen standard we are attempting to repair was

18 established over 30 years ago. That standard was put in

19 place in what seems to have been a very arbitrary way.

20 We do know that it was arrived at quickly and it was

21 arrived at without there being a great deal of data to

22 support it. We came here to fix a standard that most

23 everyone now agrees is broken. Let's not replace it with

24 another standard that has no data to support it either.

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If the Board were to proceed establishing two

2 tiers of dissolved oxygen standards, it could be setting

3 itself up for future work load when each of the suggested

4 river segments are analyzed and found to not need the

5 suggested 6.25 milligram per liter dissolved oxygen

6 concentration. How the agencies arrived at identifying

7 the segments for the added protection seems arbitrary,

8 extremely arbitrary. Features such as a bridge or some

9 other geographical identifier are used to delineate the

10 individual river segments. The joint IEPA/IDNR proposal

11 has not been subject to any ground truthing of the

12 proposed segments. No continuous dissolved oxygen

13 measurements have ever been performed to show the

14 suggested 6.25 milligram per liter concentration is

15 either realistic or attainable in the proposed enhanced

16 segments. As a result, neither EPA nor DNR has presented

17 any in this record to support their proposal.

Trying to minimize the apparent impact of the

19 joint proposal, IEPA points out that only 8 percent of

20 the total length of Illinois stream miles would be

21 included for the enhanced protection. I ask the Board to

22 look closely at the testimony and the documentation

23 submitted to support establishing the proposed segments.

24 The 8 percent is spread out across the state in a very

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1 widely dispersed sort of pattern; a piece here, a piece

2 there. There is no continuity. These designations

3 should be by basin or at least by sub-basin.

4 Increasingly the data are showing that habitat should be

5 the characteristic determining which waters receive the

6 designation.

Also at the IAWA annual conference we again heard

8 from Dr. Mark David. He is one of the principal

9 investigators working on an Illinois Department of

10 Agriculture project investigating the sources and effects

11 of nutrients in Illinois waters. Specifically he's

12 working with the Illinois Council For Food and

13 Agriculture Research, C-FAR. While that effort is not

14 yet complete, Dr. David was willing to state that his

15 findings show that the greatest influence on biological

16 diversity in Illinois waters is habitat. Diverse and

17 intact habitats result in the greatest diversity of fish

18 and macroinvertebrate communities.

Again, I caution the Board to be very careful

20 about adopting this beginning of a tiered use system

21 without there being appropriate effort put into

22 identifying the correct numbers, the correct stream use

23 categories and the stream segments that are appropriate

24 for each category. The process begun by the Illinois

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1 Association of Wastewater Agencies for identifying tiered

2 use is the correct process to follow. With continued

3 IEPA and IDNR and other stakeholder cooperation, I'm

4 confident we can come to develop in Illinois a detailed

5 and defendable attainable use system and correctly

6 identify the appropriate categories for the surface

7 waters of Illinois.

The suggested 6.25 milligram per liter enhanced

9 dissolved oxygen standard is just as wrong and is just as

10 broken as the existing standard. In other words, the

11 6.25 milligram per liter average is an unattainable

12 number even in the least-impaired river systems. At the

13 last hearing, IAWA suggested that either IEPA or IDNR

14 repeat the earlier DO continuous sampling effort this

15 summer. It is our understanding they have not done so,

16 nor have they made available any of their 2006 sampling

17 effort.

At the last hearing I explained that IAWA would

19 attempt to gather some additional data. Some IAWA

20 members over the past several months have at their own

21 expense and effort installed continuous dissolved oxygen

22 recorders in various river segments across Illinois.

23 Some of these segments are -- Some of these are segments

24 identified by IDNR and IEPA as deserving of the enhanced

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1 dissolved oxygen standard. Dr. Garvey will review the

2 data that was collected later during his testimony. As

3 he will testify, the 6.25 milligram per liter value was

4 not always achieved. This is not surprising, because

5 that was shown over a year ago when IEPA collected

6 continuous DO measurements on eight selected rivers in

7 Illinois. Some of the rivers chosen were among those

8 least impaired in Illinois. The data showed that they

9 did not meet the current 5 milligram per liter for 16

10 hours and 6 milligram per liter for 8 hours, let alone

11 the suggested 6.25 milligram per liter standard.

My questions and a question the Board should ask

13 is how can these river segments support the diversity of

14 fish the IDNR suggests are DO intolerant and the

15 protection of require a 6.25 milligram per liter average

16 DO standard yet are found in river segments that in fact

17 have been shown do not achieve a 6.25 milligrams per

18 liter average? Why is it we see lower DO levels yet

19 still find the river supports a diverse population of

20 so-called DO intolerant fish and other aquatic organisms?

21 And finally, where are the data to support the agencies'

22 position? Are we just finding a compromise that is not

23 supported by any science? Dr. Garvey and Dr. David in

24 separate studies have said that habitat is key to species

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1 diversity.

At a meeting in Springfield last January, I met

3 with IEPA staff and talked with them about what was then

4 their draft IEPA/IDNR proposal. I was surprised to see

5 the 6.25 milligram per liter concentration being

6 suggested and asked where it came from. I was

7 immediately told that it was a compromise. I was told

8 that the two agencies, IEPA and IDNR, could not decide on

9 the final concentration for the proposed enhanced river

10 segments and that the IEPA attorneys suggested that the

11 6.25 milligram per liter value be agreed upon as a middle

12 point. This is not the way to develop an appropriate

13 regulation. It is probably how the current DO standard

14 was developed, with no data to support it and no

15 documentation of where it came from. I'm hoping we're

16 not going to adopt another standard that starts out to be

17 broken immediately after being implemented.

As I said earlier, the goal of the IAWA petition

19 is that Illinois have a dissolved oxygen standard, A,

20 that represents accurately what is expected in the

21 least-impaired waters in the state; B, that the design of

22 the standard be both enforceable by the Agency and be

23 protective of all life stages of all the vertebrate and

24 invertebrate species found in the surface waters of

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1 Illinois; C, and that it have the fundamental strength of

2 being based in good science. I don't believe that the

3 proposed alternative joint IDNR/IEPA proposal achieves

4 those goals.

We have seen over the past two years a focused

6 effort to collect additional dissolved oxygen data

7 throughout Illinois. This proceeding has generated reams

8 of dissolved oxygen data. I ask the Board to look again

9 at the numerous exhibits and the amazing amount of data

10 filed, the overwhelming bulk of which supports the IAWA

11 petition. Yet still there are questions and doubt about

12 what a protective DO concentration should be. Why would

13 the two agencies now propose a tiered approach? I would

14 suggest the reason could be found by looking at that

15 fundamental difference in the agencies' viewpoint of the

16 goal of a regulation. The proposed alternative agency

17 standard is a compromise that helps IDNR be more

18 protective than is necessary, sort of setting a goal for

19 the surface waters of Illinois to meet, but the data show

20 they won't. There was no ground truthing to prove the

21 enhanced waterways meet or ever will meet the proposed

22 standard.

The second part of the joint IDNR/IEPA proposal

24 to which IAWA strongly objects is the arbitrary inclusion

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1 of July in the cool weather months, which would be

2 subject to the more stringent DO limits. This clearly is

3 another attempt to set a goal to protect early life

4 stages. The entire data set presented and discussed in

5 this proceeding shows that DO levels throughout Illinois

6 in July routinely fall below that found in the cooler

7 months. July is a hot month with resulting increases in

8 water temperature and lower DO saturation. Acceptance of

9 the IDNR/IEPA position on this issue means the

10 establishment of a DO limitation that is currently not

11 being attained, is generally not attainable and one which

12 will lead to expenditures of public funds to attempt to

13 meet an unattainable goal.

While IAWA is strongly opposed to the enhanced

15 waters proposal and the inclusion of July in the cool

16 water period, IAWA is in agreement with a portion of Toby

17 Frevert's testimony at the last hearing. Mr. Frevert

18 asked that the Board consider incorporation of a

19 narrative provision supplementing the numeric provisions

20 of the standard to assure environmentally acceptable

21 conditions are provided throughout the full spectrum of

22 general use waters. IEPA and IDNR have recommended and

23 IAWA supports that the general use waters at all

24 locations maintain sufficient dissolved oxygen

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1 concentrations to prevent offensive conditions as

2 required in Section 302.203 of the Illinois

3 Administrative Code. I quote here, "Quiescent and

4 isolated sectors of general use waters including

5 wetlands, sloughs, backwaters and lakes and reservoirs

6 below the thermocline shall be maintained at sufficient

7 dissolved oxygen concentrations to support their natural

8 ecological functions in resident aquatic communities,"

9 closed quote. Also, previously we have agreed that the

10 inclusion of a 30-day average be part of the regulation,

11 bringing it more in alignment with the USEPA 1986

12 national criteria document.

In conclusion, the proposal that a two-tiered

14 system be put in place is premature and unwarranted by

15 the data. Dr. Whiles and Dr. Garvey's report stands the

16 test of these past two and a half years of data

17 collection and should be adopted by the Board with the

18 two modifications suggested. Along with those two

19 additions, I am urging the Board to adopt the IAWA

20 petition as filed; that from March 1 through June 30 the

21 state-wide standard be a one-day minimum of 5 milligrams

22 per liter with a seven-day mean of 6 milligrams per liter

23 and that the remainder of the year, from July 1 through

24 February 28 or 29, that the one-day minimum be 3.5

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1 milligrams per liter with seven-day mean minimum of 4.0

2 milligrams per liter. As will be explained by

3 Dr. Garvey, the data clearly show that the proposed July

4 30 date for the seasonal change in acceptable DO levels

5 throughout Illinois is clearly not appropriate and should

6 not be adopted as part of this petition.

Thank you.

MR. HARSCH: Mr. Streicher, did you work

9 with a number of IAWA members in their data-gathering

10 efforts this summer?

MR. STREICHER: Yes, I did.

MR. HARSCH: I show you a document; first

13 page is Fox Metro. Could you explain what this is?

MR. STREICHER: These are statements that we

15 circulated to the agencies to certify that the data that

16 they collected was collected according to a particular

17 methodology and that it was in fact the data that they

18 collected.

MR. HARSCH: And it also provided the

20 locations where the data was collected?

MR. STREICHER: Yes, it did. It provided

22 those locations in which -- and various streams in which

23 they placed continuous dissolved oxygen meters.

MR. HARSCH: And those communities -- or

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1 those agencies would be Fox Metro Water Reclamation

2 District, Naperville, Greater Peoria Sanitary District,

3 City of Plainfield, or Village of Plainfield, the Rock

4 River Water Reclamation District and the Wheaton Sanitary

5 District.

MR. STREICHER: That's correct.

MR. HARSCH: Did these agencies provide the

8 data that they collected to Dr. Garvey?

MR. STREICHER: They provided it to both

10 myself and Dr. Garvey.

MR. HARSCH: And you've asked Dr. Garvey

12 then to prepare that data in an electronic format?

MR. STREICHER: I did.

MR. HARSCH: At this point, Mr. Hearing

15 Officer, I'd like to mark as Exhibit --

HEARING OFFICER MCGILL: 33.

MR. HARSCH: -- 33 the compilation of

18 statements from the various agencies that provided the

19 data that Mr. Streicher's identified.

HEARING OFFICER MCGILL: Is there any

21 objection to having that --

MS. WILLIAMS: Are there copies?

HEARING OFFICER MCGILL: -- entered as a

24 hearing exhibit?

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MR. HARSCH: Yes, there are copies up here,

2 and --

MS. WILLIAMS: I don't think we've seen it,

4 so I'd like the opportunity --

HEARING OFFICER MCGILL: Okay. Sure. Why

6 don't you take a look at that, and I'll just --

MR. HARSCH: While we're marking that, I

8 would like to mark as Exhibit 34 -- the disk that

9 Dr. Garvey has prepared as Exhibit 34.

HEARING OFFICER MCGILL: And that -- if you

11 could just describe that compact disk.

MR. HARSCH: It's a compact disk and it's

13 marked IAWA '06.

HEARING OFFICER MCGILL: It sets forth the

15 data referred to in Dr. Garvey's prefiled testimony?

MR. HARSCH: Yes, and that Mr. Streicher has

17 just identified he asked Dr. Garvey to compile.

HEARING OFFICER MCGILL: Okay. So the --

MR. HARSCH: At this point I'd move the

20 introduction of Exhibits 33 and 34, and as I said, we

21 have copies up here of the disk and the statements from

22 the various agencies.

MR. ETTINGER: I'm sorry. What was 33?

MR. HARSCH: The statement.

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MR. ETTINGER: And this basically just

2 authenticates the DO data that's in the Garvey report.

MR. STREICHER: Yes.

MR. ETTINGER: And 34 is the disk?

MR. HARSCH: Yes.

MR. ETTINGER: Okay.

HEARING OFFICER MCGILL: There's a motion to

8 have entered as a hearing exhibit the various

9 certifications from the water reclamation districts about

10 the sampling. Any objection to that motion?

MR. ETTINGER: No.

HEARING OFFICER MCGILL: The Agency have any

13 objection?

MS. WILLIAMS: No, I don't think we have any

15 objection.

HEARING OFFICER MCGILL: So seeing no

17 objection, that motion's granted, and that will be

18 Exhibit 33. Then there's a motion to have entered as a

19 hearing exhibit the IAWA compact disk of sampling data

20 from '06.

MS. WILLIAMS: Did Mr. Harsch say there were

22 copies of that as well?

HEARING OFFICER MCGILL: Of the disk?

MR. HARSCH: There are plenty up here.

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HEARING OFFICER MCGILL: There are copies.

2 Any objection to that motion? Seeing none, I'll grant

3 that motion, and that will be Hearing Exhibit 34.

4 Mr. Harsch, if you wanted to continue with your

5 witnesses.

MR. HARSCH: At this point I'd like to go

7 through Dr. Garvey's testimony and then have both

8 witnesses stand for questioning, if acceptable.

HEARING OFFICER MCGILL: Yes.

MR. HARSCH: Dr. Garvey, I'm showing you a

11 copy of your prefiled testimony -- [inaudible]

THE REPORTER: Excuse me. I can't hear you.

13 You'll have to speak up, please.

MR. HARSCH: I'm showing you a copy of your

15 prefiled testimony. Is this a document you prepared --

HEARING OFFICER MCGILL: I'm sorry,

17 Mr. Harsch. If you could just move closer to the

18 microphone.

MR. HARSCH: Dr. Garvey, I'm showing you

20 what -- the prefiled -- copy of the prefiled testimony

21 and all of the exhibits. Is this the document that you

22 prepared and asked me to file?

DR. GARVEY: Yes.

MR. HARSCH: Mr. Hearing Officer, I would

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1 like to mark this as Exhibit 35 and move it for

2 introduction.

HEARING OFFICER MCGILL: Any objection to

4 that motion? Seeing none, the prefiled testimony of

5 Dr. Garvey is entered as Exhibit 35.

DR. GARVEY: I'd like to read this if

7 possible.

MR. ETTINGER: May I just ask a preliminary

9 question on Exhibit 35? At least the way I printed it

10 off the Web, the IPCB Web site, the -- it didn't appear

11 like these studies came out in the right order. Did you

12 guys correct that? I just wanted to make sure.

MR. HARSCH: We also got -- You did get --

14 although they were late, and I apologize -- written

15 copies.

MR. ETTINGER: And that was stapled together

17 properly?

MR. HARSCH: I believe it was.

MR. ETTINGER: I don't know who did the

20 other one. I was just making sure that I had the pages

21 together right.

MR. HARSCH: I believe they were in the

23 written one.

MR. ETTINGER: They were in the written one.

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1 Okay.

MS. WILLIAMS: Are you talking about the

3 Dr. David stuff?

MR. ETTINGER: Yeah. There's one --

MS. WILLIAMS: I noticed that too. It

6 seemed to be out of order.

MR. RAO: Yeah, we had the same problem.

MR. ETTINGER: Okay. I just wanted to make

9 sure I wasn't -- before I --

MR. HARSCH: Well, shall we go through 35

11 and you put it in correct order, then?

MR. ETTINGER: Well, if you're offering the

13 thing that was mailed and you know that's in correct

14 order, I'm willing to accept your word for it.

HEARING OFFICER MCGILL: You're talking

16 about the order of the exhibits?

MR. ETTINGER: Yeah. There's one Mark -- I

18 think it's -- I think I've got it sorted out right, but

19 there's a page in the Mark David exhibits. The whole

20 thing isn't --

MR. HARSCH: Let's take a break, if we

22 could, and --

HEARING OFFICER MCGILL: Yeah, why don't we

24 go off the record.

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(Off the record.)

HEARING OFFICER MCGILL: Let's go back on

3 the record, and we left off clarifying the order of the

4 attachments or exhibits to Dr. Garvey's prefiled

5 testimony.

MR. HARSCH: If you look what is marked as

7 Exhibit 2, "Controls on chlorophyll-a in nutrient-rich

8 agricultural streams," that single page should go after

9 the document that is Galley Proof JEQ q05-0433 and be the

10 introduction of Exhibit 2.

MR. ETTINGER: So is "Timing of Riverine

12 Export" then Exhibit 1?

DR. GARVEY: No. That's Exhibit 2 in the --

MR. ETTINGER: All the David studies are

15 Exhibit 2?

DR. GARVEY: The three David studies are in

17 that Exhibit 2, which is now Exhibit thirty --

MR. ETTINGER: Yeah. It's part of -- It's

19 Exhibit 2 to Exhibit thirty -- whatever it is.

HEARING OFFICER MCGILL: Okay. So there's a

21 motion to have the prefiled testimony of Dr. Garvey

22 entered as a hearing exhibit, and I can't recall if I

23 ruled on that motion or not. Is there any objection to

24 that motion?

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MS. WILLIAMS: No objection.

HEARING OFFICER MCGILL: Seeing none, I'll

3 grant the motion. The prefiled testimony of Dr. Garvey

4 is now Hearing Exhibit 35.

MR. HARSCH: Dr. Garvey, would you proceed?

DR. GARVEY: I thank the Illinois Pollution

7 Control Board for allowing me to present my testimony.

8 My name is Dr. James E. Garvey, associate professor of

9 zoology and associate director of the Fisheries Illinois

10 Aquaculture Center at the Southern Illinois University

11 Carbondale, SIUC. I also hold several other

12 appointments, such as chair of the American Fisheries

13 Society -- AFS -- Farm Bill Advisory Task Force,

14 executive officer of the Illinois chapter of the AFS,

15 member of the U.S. Army Corps of Engineers Environmental

16 Management Program Project Sequencing Team and north

17 central representative of the Early Life History Section

18 of the AFS.

As you know, I am an aquatic ecologist with an

20 active research program that revolves around

21 environmental and human-induced factors influencing the

22 abundance and distribution of fishes in lakes and rivers.

23 I have published well over 40 publications that are

24 widely cited in the discipline of fisheries, aquatic

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1 ecology and general ecology. I also have an active

2 graduate training program. My graduate students often

3 join natural resource agencies such as the Illinois EPA,

4 the U.S. Fish and Wildlife Service and the Missouri

5 Department of Conservation.

My participation in this process began over two

7 years ago when the Illinois Association of Wastewater

8 Agencies, IAWA, asked Dr. Matt Whiles and me to evaluate

9 the current dissolved oxygen standard in Illinois. After

10 an extensive literature review, we generated a report

11 that stated that the current standard is too simplistic

12 for the diverse waters of Illinois. We supported many of

13 the recommendations that were developed in the USEPA

14 national criteria document -- NCD -- for dissolved

15 oxygen.

"Review." Over the course of two years, much

17 data collection, literature review and discourse among

18 the stakeholders have occurred. I have attended all the

19 stakeholder meetings and hearings before the Board; I

20 have had the opportunity to review all the technical

21 information and data presented in this rulemaking process

22 thanks to the cooperation of the stakeholders. The end

23 result of this process is that the recommendations that

24 Dr. Whiles and I set forth largely have been supported.

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1 I have appeared before the Board on several occasions to

2 present my findings. Recall, we recommended that a

3 two-season standard be adopted throughout the state.

During March through June, when the majority of

5 early life stages of many fishes and other aquatic

6 organisms are produced, we recommended a standard

7 dissolved oxygen concentration be met that provides

8 sufficient oxygen to support the metabolic needs of eggs

9 and larvae. During this time of year, streams are

10 typically flowing, primary productivity is accelerating

11 but not peaking, and temperatures are cool to moderate.

12 Thus, high dissolved oxygen concentrations are expected

13 to be available to young aquatic organisms. This

14 expectation has been well supported by my findings

15 described in previous testimony. The literature and

16 growing state-wide oxygen data set demonstrate that for

17 warm-water low gradient systems common in Illinois,

18 concentrations should not decline below 5 milligrams per

19 liter and weekly averages should not decline below 6

20 milligrams per liter. We also suggested a 30-day running

21 average of 5.5 milligrams per liter, which has little

22 biological support in my view but is recommended in the

23 NCD.

As temperatures increase during summer, increased

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1 biological activity and water's reduced oxygen capacity

2 should reduce dissolved oxygen concentrations,

3 particularly during night. Evidence is mounting that the

4 majority of reproduction of aquatic organisms in Illinois

5 either occurs before July 1 -- see Csoboth 2006 thesis,

6 SIUC; Exhibit 1 -- or late-spawning organisms have early

7 life stages that are tolerant to low dissolved oxygen

8 concentrations; for example, freshwater mussels. Thus,

9 we recommended that during July through February Illinois

10 adopt a daily acute minimum of 3.5 milligrams per liter

11 and a seven-day average of daily minima of 4 milligrams

12 per liter. In previous testimony before the Board I have

13 demonstrated that streams that meet these dissolved

14 oxygen conditions appear to contain diverse, robust

15 biological assemblages. Those that do not are typically

16 impaired.

During the past year, the Illinois Department of

18 Natural Resources -- IDNR -- and the Illinois

19 Environmental Protection Agency -- IEPA -- have proposed

20 an alternative two-tiered oxygen standard for the state

21 and have expended much energy to develop it. The general

22 use tier is very similar to the IAWA state-wide

23 recommendation with slightly higher concentrations.

24 Also, the criteria for early life stages are extended

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1 through July. In addition, the agencies recommended an

2 enhanced oxygen tier for streams that contain fishes and

3 invertebrates that were found by the Ohio Environmental

4 Protection Agency to occur in Ohio waters with high

5 average oxygen concentrations.

My concern about this approach is that the

7 selection of streams based solely on associations between

8 aquatic organisms and average oxygen concentrations

9 ignores other potential causal factors such as habitat

10 quality, gradient and temperature. Thus, coining these

11 organisms as oxygen sensitive and then using them to

12 select enhanced tier waters may be completely spurious.

13 Only through experiments that establish causality between

14 oxygen tolerance and fish life processes can tolerance be

15 assessed. Again, these issues have been addressed in

16 previous testimony when I described the research by

17 Smalle and Rabeni published in the Transactions of the

18 American Fisheries Society. Recall, these investigators

19 used a combination of lab assays and surveys to develop

20 an index of oxygen sensitivity in Missouri streams.

"Overview of Testimony." I present results that

22 continue to support the recommendations in the Garvey and

23 Whiles report. First I review the results of recent

24 peer-reviewed papers that show that dissolved oxygen

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1 concentrations in Illinois streams are difficult to

2 predict and largely influenced by characteristics of

3 stream habitat and morphology. I then explore the

4 implications of the two-tier oxygen standard for Illinois

5 using data that were collected both by the IDNR and IEPA

6 as well as data that were collected by IAWA members. In

7 my view, the most compelling results derive from stream

8 segments slated for enhanced dissolved oxygen protection

9 by the proposed IDNR/IEPA two-tier approach.

As I analyzed these data, it became apparent that

11 many of these segments likely violate both the IDNR/IEPA

12 and perhaps the IAWA proposed standards, even though

13 enhanced oxygen taxa are present in streams. Further,

14 daily discharge -- in other words, volume of water moving

15 per second through the stream -- explained as much as 50

16 percent of the variation in daily median and minimum

17 dissolved oxygen concentrations in several of these

18 systems. Thus, the physical characteristics of streams

19 interacting with flow largely drove much of the oxygen

20 dynamics. In my view, this further complicates any

21 attempts to fit a single standard to any stream in the

22 state and renews the urgent need to develop tiered

23 habitat-based criteria that incorporate how discharge

24 affects aquatic communities and water quality.

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"Literature Review." Several papers that were

2 presented by Mark -- Dr. Mark David and colleagues at the

3 University of Illinois Urbana-Champaign through support

4 by the C-FAR program recently have been published;

5 Exhibit 2. Although the general expectation was for

6 dissolved oxygen dynamics in their research streams in

7 Illinois to be affected by nutrient loading, they found

8 that stream physical characteristics, primarily basin

9 shape and its propensity to hold organic matter and

10 intercept light, were more important in influencing

11 oxygen concentrations. As I've argued throughout this

12 process and in the original IAWA-sponsored report, these

13 results indicate that stream physical characteristics

14 trump water quality and need to be the primary focus of

15 standard development.

"Analysis of Historical Grab Data and 2004-2005

17 Continuous Data." Illinois DNR/EPA provided me with grab

18 dissolved oxygen data collected during 1994 through 2003

19 in streams that have fully met their aquatic use

20 designation. In addition, they provided data from 2004

21 and 2005 collected with semi-continuous data logging

22 probes in streams that have been tapped for inclusion in

23 the enhanced oxygen tier. I sent the results I present

24 below to Mr. Matt Short and Mr. Joel Cross for their

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1 review. As of the date I am drafting this testimony,

2 they have not responded. The grab data demonstrate that

3 median dissolved oxygen concentration declines during

4 June through August relative to other months; Exhibit 3.

5 Concentrations did decline below a benchmark of 5

6 milligrams per liter during the summer months, although

7 rarely. Given that these grabs were typically taken

8 during the day, it is not surprising that relatively low

9 dissolved oxygen concentrations were not frequently

10 encountered.

Continuous data demonstrated that dissolved

12 oxygen in enhanced segments more frequently declined

13 below 5 milligrams per liter and occasionally below 3.5

14 milligrams per liter; Exhibit 3. These low

15 concentrations, which often exceeded both the IAWA and

16 DNR/EPA proposed standards, typically occurred during the

17 night through dawn. Interestingly, these enhanced-tier

18 segments more frequently -- up to 20 percent of

19 observations -- exceeded the DNR/EPA minimum of 5

20 milligrams per liter during July than the IAWA's proposed

21 standard of 3.5 milligrams per liter during that month;

22 Exhibit 3. The streams that contained oxygen sensitive

23 species failed to meet the standards set for them by the

24 IDNR/EPA proposal.

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On 24 April, 2006, Mr. Toby Frevert sent a letter

2 to Mr. Dennis Streicher including several disclaimers

3 about the above data set. He indicated that the grab

4 data were a worst-case scenario, including only data

5 collected during the morning hours. On the contrary, the

6 data set I received from the agencies and recently sent

7 back to them for confirmation included grab data that

8 were collected during morning through afternoon. In

9 fact, the median collection time was 11:00 hours, with

10 times as late as 17:00 hours; Exhibit 3. Thus, it

11 appears to me that the data represent the range of daily

12 conditions that affect oxygen concentrations. Time of

13 day was positively related to DO concentration in this

14 data set but explained less than 1 percent of the

15 variation. Although the continuous data show that the

16 enhanced streams cannot meet the IDNR/IEPA expected

17 standard, Mr. Frevert noted that these data included

18 results from 2005 when a drought gripped much of the

19 state. Because these results were collected under

20 extreme conditions, he argued that they should be

21 discounted. I respectfully disagree.

Few laws exist in the tangled and complex

23 discipline of ecology. However, one of the most commonly

24 agreed tenets in our discipline is Liebig's Law of the

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1 Minimum, taught in every general ecology course,

2 including my own at SIUC. Liebig aptly noted that the

3 distribution of all living organisms will not be dictated

4 by the average conditions, but rather the availability of

5 the most limited condition. This condition does not

6 always have to be limiting, but only when organisms are

7 experiencing some critical period such as reproduction or

8 growth. The condition could be an occasionally limited

9 nutrient, or in our case, oxygen. In other words, the

10 occasional worst-case scenario which limits the oxygen

11 available to the local fauna will determine the species

12 composition and abundance present at all times. Only by

13 identifying the limiting conditions -- in other words,

14 the acute minimum oxygen concentration -- can we

15 determine what should be present through time. The

16 extreme drought conditions in the enhanced streams likely

17 provided the worst-case scenario and thereby insight into

18 what that acute minimum should be to support a diverse

19 aquatic assemblage. The proposed minimum standard of 3.5

20 milligrams per liter was rarely exceeded in these

21 streams -- Exhibit 3 -- and likely is near the extreme

22 lower limit.

"Illinois Water Survey Data." Illinois DNR via

24 Ms. Ann Holtrop provided me with grab dissolved oxygen

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1 data from various studies compiled through the Illinois

2 State Water Survey. These data extend from the early

3 '70s through the 1990s. After reviewing the reports from

4 which these data were collected -- see Exhibit 4 -- it

5 was clear that the 20,101 individual observations that I

6 analyzed were collected in many ways. Even given this

7 caveat, I thought it might be interesting to determine

8 whether average dissolved oxygen concentrations improved

9 in Illinois surface waters through time as nutrient

10 loading abated during the past 30 years as a function of

11 the Clean Water Act. I was rather surprised to find that

12 no real pattern occurred through the decades, with

13 concentrations varying widely among sites and years for

14 which data were available. As per the results emerging

15 from Dr. David's laboratory as well as the results I will

16 present below, it appears that oxygen concentrations in

17 streams are likely influenced by habitat and its

18 interactions with many other factors, of which nutrient

19 loading is but one component.

"IAWA 2005 and 2006 Semi-continuous Monitoring."

21 Several IAWA members have installed semi-continuous

22 dissolved oxygen loggers -- 15- to 60-minute intervals

23 depending on the source -- in streams that are in

24 segments slated for enhanced tier standards by the

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1 agencies. Segments for which I have received data are on

2 the Fox, DuPage, Kickapoo, Rock and Vermilion Rivers;

3 Exhibit 5, 24,575 individual observations. With the

4 exception of the Fox River where the data derive from

5 2005, the remainder of the data derived from summer 2006.

6 I also procured USGS daily monitoring data for discharge

7 from gauging stations near the river segments to test the

8 hypothesis that discharge drives much of the variation in

9 dissolved oxygen concentrations in low-gradient Illinois

10 streams. The IAWA members who have collected the data

11 have reviewed these summary results.

Dynamics of dissolved oxygen vary widely among

13 the enhanced tier stream segments -- Exhibit 5 -- from

14 daily concentrations varying widely in the Fox River to

15 less so in the Vermilion River. Both median and minimum

16 daily dissolved oxygen concentrations typically declined

17 as the summer progressed in the Fox, DuPage and Kickapoo

18 Rivers, but not the others; Exhibit 5. Probably the most

19 compelling result is the linear or log-linear

20 relationship between daily discharge and median and

21 minimum daily dissolved oxygen concentrations in the

22 streams; Exhibit 5. In 2005 for the Fox River, dissolved

23 oxygen concentrations declined sharply with declining

24 daily discharge; Exhibit 5. Conversely, in the other

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1 streams during 2006, dissolved oxygen concentrations were

2 either unrelated to discharge or negatively related;

3 Exhibit 5. I could speculate broadly about the

4 underlying mechanisms, including flow-related

5 biomechanical oxygen demand, hypoxic groundwater

6 intrusion and changes in water quality due to run-off.

7 Regardless of the underlying causes, given that discharge

8 can explain up to 50 percent of the variation in

9 dissolved oxygen concentrations during both severe

10 drought -- 2005 -- and non-drought years, this issue

11 needs to be incorporated into standard development and

12 interpretation.

I applied both the enhanced tier standard and the

14 proposed IAWA standard to the semi-continuous data.

15 Typically, both standards demonstrate that several of the

16 stream segments, including those in the DuPage, Fox and

17 Kickapoo Rivers, failed to meet the season-dependent

18 acute minima, even given the proposed enhanced status of

19 these systems; Exhibit 6. This is not surprising given

20 that some portions of the DuPage and Fox Rivers are

21 currently listed with low dissolved oxygen as a probable

22 cause for impairment; see map in Exhibit 5. However, the

23 Rock River, which is listed as impaired due to low

24 oxygen, did not fail to meet any of the minimum criteria;

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100

1 Exhibit 6.

Seven-day means ending in July for IAWA and

3 August for IDNR/IEPA proposals were generally

4 insensitive; Exhibit 6. Interestingly, the IAWA proposed

5 seven-day minimum standard of 4 milligrams per liter,

6 which applies during July through February, generated

7 more violations than the DNR/EPA seven-day mean minimum

8 of 4.5 milligrams per liter, which starts in August;

9 Exhibit 6. Although I did not expect this to occur,

10 apparently applying the mean-minimum criterion during

11 July as per the IAWA proposal is more sensitive. Because

12 the daily variation in dissolved oxygen concentrations

13 differs more than the daily average -- i.e., it is the

14 variation, not the mean that is sensitive -- it appears

15 that the mean-minimum criterion is more sensitive to

16 frequently -- frequent declines in oxygen during the

17 summer. In my view, it appears that many of these

18 systems, particularly the Fox River, fail to provide

19 adequate oxygen for aquatic life during part of the

20 summer. This causes me to question the linkage between

21 the aquatic assemblages used to select the sites for

22 enhanced status and oxygen needs of the resident

23 organisms.

"Summary." One of the major conclusions of the

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101

1 Garvey and Whiles report was that we have much to learn

2 about associations between aquatic organisms and spatial

3 and temporal heterogeneity in dissolved oxygen

4 concentrations of surface waters in the U.S. Since that

5 report was completed, I have had the privilege of

6 exploring this issue in depth and receiving some

7 unprecedented -- and fun -- data sets. As Liebig stated

8 generally for all ecology, it is clear that oxygen can

9 become a limiting dissolved gas for aquatic organisms

10 and, below some threshold concentration, we should expect

11 to see deleterious effects and reductions in species

12 composition and abundance. To this date, all the data I

13 have reviewed suggest that a threshold does exist and

14 that it occurs during the summer when concentrations are

15 less than or equal to 3 milligrams per liter as stated in

16 the NCD and the Garvey and Whiles report. If a stream

17 remains consistently above this level -- i.e., never

18 violates a 3.5 milligrams per liter minimum -- oxygen is

19 no longer limiting for life and some other factor then

20 limits organisms, probably habitat. All of the stream

21 data and the literature -- see Dr. David's research --

22 support this view.

I favor scrapping dissolved oxygen as a standard

24 altogether. Although under extreme conditions it can

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102

1 become limiting -- for example, in the Gulf of Mexico

2 hypoxic zone -- variable or low concentrations are

3 largely a symptom of habitat problems and interactions

4 with other factors such as chemical and biological

5 pollutants, and, as this testimony suggests, discharge.

6 However, given that this is not currently a possibility,

7 it appears that the set of standards proposed in the

8 Garvey and Whiles report stand the test of the data and

9 should be adopted in the interim. I do urge the

10 stakeholders to move rapidly toward a habitat-based tier

11 designation where oxygen is but one of a suite of

12 physical and chemical parameters used to diagnose root

13 causes and develop sound solutions.

MR. HARSCH: Dr. Garvey, have you had an

15 opportunity to review additional data since you prepared

16 your prefiled testimony?

DR. GARVEY: Yes, I have.

MR. HARSCH: And would you like to present

19 some additional comments regarding that data?

DR. GARVEY: Yes, I have, and it's included

21 in another document that I'd like to read.

MR. HARSCH: And this document is entitled

23 "Analysis of Dissolved Oxygen Patterns: Comparisons

24 among Fox River Enhanced Reach, DuPage River and Salt

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103

1 Creek 2006"?

DR. GARVEY: Yes, it is.

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

4 to mark this as Exhibit 36 and move its introduction, and

5 we have multiple copies up here.

MR. ETTINGER: Off the record, I wasn't

7 aware of this one, so can I just grab --

HEARING OFFICER MCGILL: Why don't we go off

9 the record.

(Off the record.)

HEARING OFFICER MCGILL: We'll go back on

12 the record now, please, and, Mr. Harsch, you were going

13 to add to your description of the document you're moving

14 to have entered as a hearing exhibit?

MR. HARSCH: Yes. Before you rule on the

16 motion, perhaps if Dr. Garvey could describe what the

17 document is and its generation, it would be helpful.

HEARING OFFICER MCGILL: Sure. Thanks.

DR. GARVEY: This document is -- well, first

20 of all, I apologize for springing this on everyone. We

21 received the last of the data that is summarized in this

22 document last week, late last week, and so more or less I

23 was curiously analyzing it over the last few days, so

24 that's the reason why you're just seeing it now. It's

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1 data that were continuously monitored and -- by the Fox

2 Metropolitan Reclamation District for 2006 and also by

3 the DuPage River/Salt Creek Workgroup, and so more or

4 less it's nothing surprising. It's just additional data

5 to more or less support some of the comments that I've

6 made in my written testimony.

MR. HARSCH: And while the document refers

8 to Fox Metropolitan Reclamation District, it's actually

9 the Fox Metro Water Reclamation District, and we have a

10 representative from this group here.

MS. WILLIAMS: Will he be here tomorrow?

12 Will the representative be here tomorrow?

MR. HARSCH: Yes, Greg will be here

14 tomorrow.

DR. GARVEY: Okay. I'll proceed in reading

16 it if it's --

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

18 its introduction.

HEARING OFFICER MCGILL: Any response to the

20 motion?

MS. WILLIAMS: I guess I just feel that

22 we're a little prejudiced if we're not going to be able

23 to cross examine Mr. Garvey on this information tomorrow

24 after we've had a chance to review it, and I don't really

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1 know why we're getting it now, but obviously it could be

2 entered as a public comment or something anyway, so I

3 don't know which -- that it makes much point in objecting

4 to its admission, but I just want to say on the record I

5 feel a little prejudiced about being able to cross

6 examine on it at this point.

HEARING OFFICER MCGILL: Well, and we

8 haven't ruled out additional hearings at this point

9 either, so something to keep in mind. There are all

10 kinds of potential options. But you -- as you probably

11 know, before this hearing adjourns tomorrow, we'll

12 certainly be talking about things like the possibility of

13 any more hearings or having a -- setting a prefirst

14 notice public comment deadline, those sorts of issues.

15 So any other response to the motion?

MR. ETTINGER: Can I inquire why the --

17 There's no Rock River data in this one; is that correct?

18 Or did I not -- Or am I missing something?

DR. GARVEY: This is only for the Fox. The

20 reality is that we received the Fox Metro data for 2005

21 but not 2006, and so they provided that to us, so it's

22 just an augment or a complement --

MR. ETTINGER: Well, a lot of this says it's

24 on Salt Creek or DuPage, or am I looking at this --

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DR. GARVEY: Also there's data from the Salt

2 Creek and DuPage which I received from the DuPage

3 River/Salt Creek Workgroup.

MR. ETTINGER: Okay. So it's just -- So we

5 just don't have the Rock River that we had before.

DR. GARVEY: That's because we already --

7 we've already covered the Rock River in the --

MR. ETTINGER: Oh, that's in this?

DR. GARVEY: -- written testimony, yeah.

MR. ETTINGER: Okay.

HEARING OFFICER MCGILL: Okay. Seeing no

12 objection, I will grant the motion to have this document

13 entered as Hearing Exhibit 36. And, Dr. Garvey, under

14 the threat of an additional hearing, but did I overhear

15 correctly that you could possibly be available tomorrow

16 for cross examination?

DR. GARVEY: Yes.

HEARING OFFICER MCGILL: Thank you.

MR. HARSCH: You will deprive the students

20 in Southern Illinois University of his presence in class.

HEARING OFFICER MCGILL: They can start

22 their weekend earlier. If you want to go ahead, then,

23 and give your --

MS. WILLIAMS: Can we ask one more question

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1 real quick about the exhibit? Is the -- Exhibit 34, the

2 disk, does that include the data that's been reviewed for

3 this new paper here too?

DR. GARVEY: Yes.

MS. WILLIAMS: Okay. Thanks.

HEARING OFFICER MCGILL: Thank you.

7 Excellent clarification. Go ahead, Dr. Garvey.

DR. GARVEY: Again, thank you to the Board

9 and everyone for listening to this testimony. This

10 document is complementary to my written testimony and

11 data analysis tendered during the November 2 hearing

12 before the Illinois Pollution Control Board. I received

13 continuous monitoring data from the Fox Metro Reclamation

14 District for 2006 to compare to the data collected by

15 this agency during 2005. I also received continuous

16 monitoring data for summer 2006 from the DuPage

17 River/Salt Creek Workgroup that is developing a water

18 quality model for these rivers.

For the Fox River, I received data for three

20 sites. As I note in my written testimony, these three

21 sites reside in a reach slated for enhanced dissolved

22 oxygen -- DO -- status by the IDNR/IEPA proposal. The

23 other data are for reaches near enhanced reaches but not

24 within them; see red points on Figure 1 of this document

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1 for sites. For the East Branch DuPage River, five areas

2 were monitored semi-continuously; bridges at Army Trail

3 Road, Hidden Lake, Hobson Road, Butterfield Road,

4 St. Charles Road. For Salt Creek, sites were at

5 Butterfield Road, Fullersburg Woods and York Road.

6 Figure 1 shows these sites in red. The green sites are

7 areas described in my written testimony. The stream

8 reaches highlighted in blue are those with proposed

9 enhanced DO status. All analyses are similar to those

10 for the data described in my previous testimony.

"Summary of Results," first bullet. As with my

12 previous analysis of continuous data, discharge in 2006

13 explained a portion of the variation in dissolved oxygen

14 concentrations in many of the river reaches, although the

15 strength of the relationship was weaker than that during

16 the 2005 drought.

Two, low discharge typically constrained

18 variation in dissolved oxygen concentrations, keeping

19 them at relatively low levels.

Three, the proposed enhanced-tier Fox River sites

21 typically fared worse in meeting both the IDNR/IEPA

22 criteria and the IAWA proposed criteria than the

23 non-enhanced reaches in Salt Creek and the DuPage River.

Four, as in the previous analysis summarized in

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1 my written testimony, the greatest disparity between the

2 performance of the IDNR/IEPA and IAWA proposed standards

3 occurred during July, with the IDNR/IEPA standard

4 identifying up to ten times more violations than the IAWA

5 proposal.

Five, some reaches were clearly impaired with

7 dissolved oxygen concentrations extending far below 3

8 milligrams per liter; for example, DuPage, St. Charles

9 Road, Salt Creek, Fullersburg Road. These problems

10 typically occurred before July and were identified

11 similarly by both proposed standards.

And lastly, some congruence occurred in daily

13 dissolved oxygen concentrations between years across the

14 three Fox River sites. This suggests that dissolved

15 oxygen concentrations in river reaches are somewhat

16 predictable among years, even given annual variation in

17 climate; for example, drought versus non-drought. This

18 supports the hypothesis that organisms within streams are

19 likely able to anticipate -- and I qualify this through

20 selection of life history strategies, reproductive

21 allocation, etc. -- seasonal changes in oxygen

22 availability. Whether each site has a specific

23 discharge-dependent oxygen fingerprint, which also

24 depends on habitat characteristics, water quality, etc.,

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1 has yet to be determined.

"Daily Variation in Dissolved Oxygen

3 Concentrations." Similar to 2005, the Fox River sites

4 exhibited some of the highest daily variation in

5 dissolved oxygen concentrations among the stream reaches

6 studied, Figures 2 through 5 of this document. For the

7 DuPage and Salt, dissolved oxygen concentrations varied

8 less within days. However, dissolved oxygen

9 concentrations occasionally would drop below the average

10 at these sites. I further examined the data and

11 determined that several of these outliers, particularly

12 the low consistent readings in the Salt-Fullersburg

13 during June, were likely due to probe problems or

14 fouling. I excluded these results. Other low values

15 were typically associated with low discharge at night;

16 see Figure 3. The pattern in Figure 3 was for all the

17 sites and observations collected in 2006, restricted to

18 July, a time when low values were common. This pattern

19 clearly illustrates the need to collect data during the

20 early morning to capture the lowest concentrations;

21 Figure 6.

"Seasonal Variation in Dissolved Oxygen

23 Concentrations." As in 2005, both median and minimum

24 dissolved oxygen concentrations typically declined during

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1 spring through summer, then increased by fall; Figures 9

2 through 14. Similar to daily values, the greatest

3 variation among dates in dissolved oxygen concentrations

4 occurred in the Fox River sites.

"Discharge Effects." Although discharge

6 occasionally declined to 2005 levels, the impact of

7 discharge on dissolved oxygen concentrations was less

8 pronounced in these stream reaches, most notably the Fox;

9 Figure 15 through 17. In the Fox River, conventional

10 linear regression again demonstrated that dissolved

11 oxygen declined with decreasing discharge. I used an

12 additional analysis to explore how variation in the

13 pattern of oxygen changed with discharge. The

14 two-dimensional Kolmogorov-Smirnov test, the 2DKS test,

15 is useful for identifying when a driving variable, such

16 as discharge, constrains its response variable -- for

17 example, oxygen -- and when that constraint is released.

18 This is compared against a random expectation generated

19 from the data. The test results are included on each

20 figure; Figures 15 through 25. The 2DKS p-value can be

21 interpreted as the number of randomly generated patterns

22 that were different than the actual discharge-oxygen

23 relationship. The gray line on these figures depicts the

24 discharge value that had the greatest constraint on

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1 oxygen concentrations. For example, for each of the

2 three Fox River sites, discharge below 100 cubic feet per

3 second typically constrained the variation in dissolved

4 oxygen below 6 milligrams per liter. As I noted in my

5 written testimony about the other data, the effect of

6 increasing discharge on dissolved oxygen concentration is

7 not always positive; for example, see Salt Creek, Figure

8 18; DuPage, St. Charles in Figure 25.

"Standard Performance." For the minimum proposed

10 standards for both the IDNR/IEPA and IAWA proposals, the

11 Fox River enhanced sites performed poorly during 2006 in

12 July and August; Table 1. On average, across all sites,

13 the two proposed standards fared similarly except for

14 July, where the IDNR/IEPA proposed standard generated 11

15 percent violations among sites, whereas the IAWA standard

16 generated 1 percent; Table 1.

Both proposed standards found violations of the

18 seven-day mean criterion, although the IAWA standard

19 found 1 percent and the IDNR/IEPA standard found 6

20 percent, with about twice as many sites and dates

21 generating at least one violation of the IDNR/IEPA

22 standard; Table 2. The Fox River enhanced sites met this

23 criterion for both standards.

The IDNR/IEPA seven-day mean-minimum standard

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1 found 22 percent violations of observations, of which the

2 Fox River in August was largely responsible; Table 3.

3 The IAWA standard also detected low values in the Fox

4 River, although it was less likely to generate violations

5 for other dates and sites, 17 percent for IAWA versus 46

6 percent for IDNR/IEPA. Neither standard detected many

7 violations of their respective 30-day criteria; Table 4.

"Congruence Among Years." For organisms to

9 become adapted to their environment, natural selection

10 must favor traits that anticipate predictable

11 environmental conditions. For example, deciduous trees

12 anticipate the onset of winter by losing their leaves in

13 the fall in this sense. As I have testified earlier,

14 fishes and other organisms that reside in low-gradient

15 warm-water streams should have traits including

16 reproductive schedules that are related to oxygen, if

17 oxygen fluctuations within streams are somewhat

18 predictable among years. I chose the most conservative

19 analytical path and regressed daily averages and medians

20 for the Fox River in 2005, an extreme drought year, and

21 2006, a less extreme year. This analysis showed a

22 relationship between daily values in each year -- Figure

23 26 of this document -- suggesting that seasonal changes

24 in oxygen are predictable and may select for life

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1 histories that anticipate summer oxygen sags. I was

2 quite frankly surprised by this result. Daily values

3 should be quite sensitive to many extraneous factors that

4 vary within a given day; for example, discharge, cloud

5 cover, temperature, rain. Thus, I would expect coarser

6 running averages that obscure daily variation to be

7 related -- for example, monthly averages -- but not

8 finer-scale ones.

That's it.

MR. HARSCH: Dr. Garvey, does this

11 additional data change any of your conclusions in your

12 written testimony?

DR. GARVEY: No, it does not.

HEARING OFFICER MCGILL: Mr. Harsch, did you

15 have anything else you'd like to present before we

16 proceed with questions for --

MR. HARSCH: I have a few additional

18 questions.

HEARING OFFICER MCGILL: Okay. Go ahead.

MR. HARSCH: Dr. Garvey, it's been a long

21 time since you first testified in this proceeding. Can

22 you provide a little more elaboration about your

23 involvement with the Illinois chapter of American

24 Fisheries?

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DR. GARVEY: Yeah. I was elected as a

2 member of the executive committee and I'll be the

3 president -- president-elect right now. I'll be the

4 president next year.

MR. HARSCH: And can you do the same for the

6 American Fisheries Society?

DR. GARVEY: Yeah. For the American

8 Fisheries Society, I served in several capacities. One

9 of those is I'm on the advisory committee for the Farm

10 Bill Advisory Committee, which is -- I'm the chair of

11 that committee. Basically what that is is to look at the

12 farm bill and its potential impact on aquatic resources

13 in the country and their potential impacts on fishery

14 resources, so obviously dissolved oxygen or responses to

15 non-point pollution and point pollution are certainly

16 things that we're going to be looking at associated with

17 that.

I'm also a member of the Early Life History

19 Section of the American Fisheries Society. I'm actually

20 the north central representative. The Early Life History

21 Section actually is interested in more or less research

22 in early life history stages of fishes, and as a

23 representative of the north central part of this group,

24 I'm responsible for contacting other experts and asking

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1 them questions and reporting back to the Society about

2 issues associated with early life history dynamics in

3 fishes.

MR. HARSCH: In addition to Illinois, what

5 are other areas included in the north central?

DR. GARVEY: Oh, let's see. We've got

7 Illinois, Indiana. Ohio would be part of that, Michigan,

8 Wisconsin. Several different states.

MR. HARSCH: And how were you chosen for

10 this position?

DR. GARVEY: My peers that were in the Early

12 Life History Section more or less targeted me and asked

13 me to do it, and I couldn't say no.

MR. HARSCH: So is it fair to say they

15 recognized you as an expert in this area and asked you to

16 serve?

DR. GARVEY: Yes, Roy.

MR. HARSCH: I had to ask.

HEARING OFFICER MCGILL: I'm sorry. Just

20 for the record, could you explain what the farm bill is

21 or just identify that?

DR. GARVEY: Farm bill?

HEARING OFFICER MCGILL: What's the farm

24 bill?

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DR. GARVEY: The farm bill's mighty big, and

2 it's a federal legislation that's associated with more or

3 less any activities of agriculture. There tends to be a

4 lot of money that's distributed for actual environmental

5 issues associated with agricultural impacts in the

6 country. Currently most of those go toward

7 wildlife-related issues, but one of the major functions

8 of my chairmanship of this committee with American

9 Fisheries Society is to teach not only the general public

10 but also the fisheries professionals that agricultural

11 practices and other practices associated with agriculture

12 have direct impacts on aquatic and fisheries resources

13 throughout the country.

HEARING OFFICER MCGILL: Thank you.

MR. HARSCH: Dr. Garvey, you previously had

16 testified that in your opinion, one could not develop a

17 DO relationship for organisms from the Rankin work that

18 was prepared in Ohio; is that correct?

DR. GARVEY: It is my opinion that the only

20 way, as I noted in my written testimony, to really

21 develop a sound relationship between physiological

22 constraints associated with low dissolved oxygen and the

23 organism is by actually doing laboratory studies and

24 actually doing experimentation. Simply going out in the

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1 field and looking at correlations between the presence of

2 an organism and its average environmental conditions,

3 oxygen being one of them, it is impossible to tease apart

4 because more or less the environment is so incredibly

5 complex.

MR. HARSCH: And you were present at the

7 last hearing where Joel Cross testified and then

8 essentially verified that testimony again today that the

9 IEPA and IDNR have not looked at dissolved oxygen data,

10 temperature data or habitat data in developing their

11 enhanced DO proposal.

DR. GARVEY: That is my understanding.

MR. HARSCH: Do you have an opinion as to

14 whether or not there is any scientific basis to support

15 the joint IDNR/IEPA proposal that's been put forth before

16 the Board?

DR. GARVEY: Well, I think portions of it

18 are based on the NCD and some of the recommendations that

19 were placed in the Whiles and Garvey report, so there's

20 probably some biological basis to some of those issues.

21 The enhanced tier criteria, again, I can't support that

22 based on my belief that you need to have strong

23 laboratory-derived physiological-based data associated

24 with oxygen tolerance in fishes and other aquatic

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1 organisms, and it probably also needs to incorporate --

2 and I said this before the Board before -- the effects of

3 flow, because you can't look at just oxygen tolerance.

4 You have to look at the interaction between oxygen

5 tolerance and the flow of water across the respiratory

6 surface of these organisms.

MR. HARSCH: No further questions.

HEARING OFFICER MCGILL: Thank you. Why

9 don't we go off the record for just a moment. Why don't

10 we take a five-minute break and then we can at least

11 start questions for these witnesses.

(Brief recess taken.)

HEARING OFFICER MCGILL: Why don't we go

14 back on the record. We're going to start the questioning

15 now of IAWA's witnesses. Mr. Harsch, counsel for the

16 proponent, had a few additional questions for these

17 witnesses, and then we will open it up for questions.

MR. HARSCH: Actually, during the break I

19 was reminded that I hadn't given Dr. Garvey the

20 opportunity to respond to some of the criticisms of his

21 prefiled testimony.

Dr. Garvey, would you like to respond to any of

23 the points that were made?

DR. GARVEY: One of the major issues that

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1 we've been bantering about is the issue of early life

2 history stages, when they're present and trying to

3 determine -- it's quite -- it's actually quite difficult

4 to do -- determine when we should have the more

5 protective standard versus the less protective standard,

6 if that's how you want to define it or whatever. Of

7 course the month of July comes in, and that's -- we've

8 tried very hard to rectify that, and that's the reason

9 why in my testimony, my written testimony, I mention the

10 Csoboth thesis, because she did a tremendous amount of

11 work on the Illinois River and associated backwater to

12 try and determine when the majority of larval fishes were

13 produced. Steve mentioned that that was in the southern

14 part of the state. I don't know if around -- among the

15 I-70 in the Alton/Grafton area is the middle -- the

16 southern part of the state, but it takes us about three

17 hours to get up there, so I don't know. It's more

18 central part of the state, so that's one thing.

The other issue is the temperature data that I

20 used to try and bracket the dates by which we should

21 expect to see the majority of fish spawning be completed

22 within the state, and this was a time when we were in the

23 stakeholder process when we were trying to determine

24 whether we should have a latitude-dependent set of

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1 standards or times associated with standards. The data

2 that I used were the only data available for continuous

3 monitoring of the temperature, and so that was the Mazon

4 and the Salt, I believe, so it wasn't that I just pick

5 and choose the data that I had. It was just the data

6 that were available to me, so if they were a little bit

7 off relative to what temperatures you would expect in

8 that part of the state, the northern part of the state,

9 if I had other data, I would have used that. So those

10 were my qualifying statements.

BOARD MEMBER JOHNSON: Dr. Garvey, with

12 respect to your first point, Dr. Murphy suggested that

13 those be based upon water temperature rather than trying

14 to delineate what particular months are warm and which

15 are not. What do you think of that suggestion?

DR. GARVEY: I think ideally, in an ideal

17 world, that would certainly be a more useful way of

18 characterizing oxygen. Obviously oxygen is highly --

19 oxygen concentration in the water, oxygen saturation,

20 partial pressure, all those sorts of things are dependent

21 on temperature, and so I think in an ideal world, yeah,

22 using percent saturation as a function of temperature

23 would probably be a better way of going about doing

24 things. The main problem is that the majority of data

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1 that are collected by agencies and available in the

2 literature are in concentration. For whatever reason, a

3 decision was made early on to go and use milligrams per

4 liter as the gold standard, and more or less that's

5 what's been developed in protocols. I just don't see any

6 way of getting around it.

The second thing -- this is something I'm not an

8 expert on, so I'm just sort of -- I'm just going to

9 speculate on -- is that, you know, most of the organisms

10 we're talking about are poikilotherms, which means that

11 their body temperatures vary with that of the

12 environment, so their temperatures are very similar to

13 that, so the rates by which oxygen would go across

14 particular membranes of the respiratory surface in these

15 animals, I don't know -- this is something I would have

16 to think really hard about, whether it's really as

17 temperature-dependent as we might think it is, because

18 the body temperature of the organism is very similar to

19 that of the water, so I'm not sure percent saturation is

20 going to give us any more information than oxygen

21 concentration. But again, that's pure speculation. I'd

22 have to think about that a little bit more.

Roy is also trying to point out the fact that the

24 reality associated with smaller streams -- and that was

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1 another thing that was brought up as a criticism, that

2 all of the information that we've talked about up to this

3 point has been associated with sort of mid-order streams

4 or larger. I would love to have good data for

5 first-order head-water streams in terms of how dissolved

6 oxygen concentrations varies in these systems and how

7 early life history of organisms are structured within

8 these particular small systems. I think most of us would

9 agree that probably the main thing that happens in small

10 head-water streams or small first-order streams is that

11 they get buried under silt or they're kind of really

12 negatively affected in their habitat. That's probably

13 the first thing we should be focusing on. But, yeah, it

14 would be great if we had that kind of oxygen data,

15 temperature data for those systems to really begin to

16 develop standards for those systems as well, but that

17 data, as far as I know, do not exist.

HEARING OFFICER MCGILL: Mr. Harsch, you're

19 finished?

MR. HARSCH: I'm finished. I'm trying not

21 to testify.

HEARING OFFICER MCGILL: So far so good.

23 We'll open it up to questions now. Counsel for DNR and

24 the Agency -- DNR and IEPA, rather -- do you have any

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1 questions you'd like to pose to these witnesses?

MS. WILLIAMS: I think we'd like to hear

3 what the other questions are to see if we have any

4 questions.

HEARING OFFICER MCGILL: Okay.

6 Mr. Ettinger, do you have any questions?

MR. ETTINGER: Yes. Traditionally I'm the

8 one who goes forward unprepared, so --

MR. YONKAUSKI: And we all thank you for

10 that.

MR. ETTINGER: So I'm going to plunge in and

12 see what I can learn. I've got a lot of clarifying

13 questions here and other things here. Also I'd like to

14 say primarily I appreciate Mr. Harsch's willingness to

15 suspend his testimony. I'm also going to only address my

16 questions to Dr. Garvey for the time being, because I'd

17 like if possible to get him out of here tonight, so all

18 of my questions are addressed to Dr. Garvey now.

Turning now to page 3 of your prefiled testimony,

20 you state, quote, "Evidence is mounting that the majority

21 of reproduction of aquatic organisms in Illinois either

22 occurs before July 1 or late-spawning organisms have

23 early life stages that are tolerant to low dissolved

24 oxygen concentrations." My first question is, what

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1 evidence do you have that is mounting in addition to

2 this -- I'm sorry -- Csoboth --

DR. GARVEY: Csoboth, yeah.

MR. ETTINGER: -- Csoboth study?

DR. GARVEY: Well, in previous hearings and

6 previous testimony I presented data from other studies,

7 including my own, that have shown that on average --

8 actually more than on average; actually quite

9 frequently -- most species of fishes in systems that I've

10 worked in do spawn before July 1 and that that's

11 typically what you see. There are other species that do

12 spawn in the summer as well, but if you take a look at

13 the majority of our fish production -- is what I'm

14 focusing on, is primarily fish -- it does occur prior to

15 July 1, at least in the central part of the state, that

16 latitude.

MR. ETTINGER: Have you studied any water

18 north of Grafton?

DR. GARVEY: The reality is is that there's

20 very little data that are available past that point.

21 That's -- That was the issue that we brought up in the

22 first hearing, and it continues to --

MR. ETTINGER: I gather the answer to my

24 question is no.

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DR. GARVEY: That would be the answer, yes.

MR. ETTINGER: Thank you. Regarding

3 freshwater mussels, are there studies regarding

4 freshwater mussels that are in the record?

DR. GARVEY: Yeah. Actually, this is fresh

6 off the press, and again, this is something that I didn't

7 even -- I probably should have included in the exhibit.

8 In the North American Benthological Society's national

9 meeting, which occurs every year -- this one was in

10 Anchorage, Alaska, in 2006, this spring -- Brianna Kaiser

11 and her advisor -- I think it's Mark Barnhart -- I'm not

12 exactly sure -- presented a talk called "The Effects of

13 Hypoxia on Brood Survival in the Freshwater Mussel" --

14 and I'm going to butcher this -- "Venustaconcha

15 Ellipsiformis," and what they did is -- if you guys want,

16 this is actually on the Web so you can take a look at it,

17 or I can provide this if you want. They looked at the

18 survival of glochidia, the larvae, so these are the

19 larval mussels that typically live in a brood pouch until

20 an adult fish or a fish comes up to the mussel, and then

21 they spit their glochidia into the mouth of the fish and

22 then they attach to the gills.

They looked at the survival of these glochidia

24 both in the brood pouch of the adult mussels but also in

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1 the sediment as well, and what they found is that in the

2 acute exposures, glochidia could survive DO

3 concentrations as low as 0.5 milligrams per liter, okay,

4 in this particular species, and in chronic exposures they

5 really couldn't kill them until they dropped the DO below

6 2.6 milligrams per liter. As far as I know, to the best

7 of my knowledge, this is the first time that anyone has

8 looked at early life history survival of glochidia, of

9 mussels, as a function of oxygen concentrations. This

10 would make sense in a lot of ways because young mussels

11 have to drop off the fish eventually and settle, and

12 obviously they're going to drop in some sediment, and

13 typically the sediment's not going to be the best oxygen

14 environment, so you would expect that -- the glochidia of

15 mussels to be fairly tolerant to low DO, and that's sort

16 of ferreted out by this research. I doubt if it's in the

17 peer review literature yet.

MR. ETTINGER: Are you aware of any other

19 studies regarding mussels and dissolved oxygen

20 concentrations?

DR. GARVEY: There are other studies looking

22 at adult mussels, and we've talked about that in previous

23 testimony in hearings, so really nothing new has come up

24 since then, but most of the research, again, has shown

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1 that typically the ability for adult mussels to regulate

2 oxygen is dependent on the kind of habitat you'd expect

3 them to be in, so if they're in a more riffle-like

4 habitat with fast-flowing water, then they tend to be

5 less DO tolerant or less tolerant to low DO, and if

6 they're in more sedimentary or areas of quiescent flow or

7 whatever you want to call it, they tend to be more

8 tolerant of low DO. And I can cite the paper. I have it

9 in front of me somewhere, but --

MR. ETTINGER: Sure. Okay. Excuse me. In

11 some cases I'm trying to actually quicken the testimony

12 by asking questions that might otherwise seem

13 impertinent, but you ask -- say, for example, "The

14 dissolved oxygen concentrations in Illinois streams are

15 difficult to predict and largely influenced by

16 characteristics of stream habitat and morphology."

17 How --

DR. GARVEY: Right.

MR. ETTINGER: How is that relevant to what

20 the dissolved oxygen standards should be?

DR. GARVEY: This is largely associated with

22 the research that Mark David has done for the U of I, and

23 it suggests that things like the propensity for streams

24 to hold on to organic matter -- for example, you know,

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1 corn husks and things like that -- and for those to

2 settle out in the water and sit in the stream is going to

3 greatly have an influence on the amount of oxygen demand.

4 Those are things that can be better predictors of oxygen

5 dynamics.

MR. ETTINGER: I understand that. We're

7 going to ask a few other questions like this, but my

8 question is, does it make a difference what is causing

9 the low or high dissolved oxygen level as to what the

10 standard should be? To put it another way, if it turned

11 out that the major cause of dissolved oxygen variations

12 was the operation of sewage treatment plants, would that

13 dictate to you as a biologist any different dissolved

14 oxygen standard than if it were mainly stream morphology?

DR. GARVEY: No. I mean, it doesn't matter

16 to me.

MR. ETTINGER: Thank you. In terms of

18 looking at dissolved oxygen levels in these 8 percent of

19 the streams which IDNR and IEPA have proposed have this

20 enhanced dissolved oxygen level, have you looked at data

21 for any of the waters other than the Fox River?

DR. GARVEY: Yeah. Basically the written

23 testimony focuses on enhanced reaches. All of those --

24 In the written testimony, all of those stream reaches

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1 that had continuous data collected by IAWA members was in

2 enhanced reaches.

MR. ETTINGER: So all of this data on

4 dissolved oxygen levels is in enhanced reaches?

DR. GARVEY: Okay. They're telling me

6 Wheaton DuPage is not a part of it. It's been a while

7 since I've looked at it. So it would be more the other

8 systems as far as I understand, yes, but maybe I'll look

9 at my map.

MR. ETTINGER: So just to be clear and so --

11 which are the data for waters which were chosen for

12 enhanced DO levels by DNR and EPA and which were not in

13 your mind?

DR. GARVEY: I'm just talking about the IAWA

15 continuous monitoring data. I'm not talking necessarily

16 about the IDNR/IEPA data. However, it was told by me

17 that all of the data that I received from IDNR and IEPA

18 did reside in the enhanced regions, and Dennis is going

19 to respond for me here because I don't know what I'm

20 talking about.

MR. STREICHER: Just to answer that, the

22 Wheaton Sanitary District is on the west branch of the

23 DuPage area that wasn't an enhanced segment, and the Salt

24 Creek/DuPage River data that was submitted in that late

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1 paper is not on any enhanced segments, but the -- all of

2 the other IAWA are on enhanced segments, the main stem of

3 the DuPage, Rock River.

MR. ETTINGER: And the Rock River was in the

5 enhanced segment too.

MR. STREICHER: Yes.

MR. ETTINGER: It says, "Daily discharge" --

8 this is on page 4 of your prefiled testimony. It says,

9 "Daily discharge -- i.e., volume of water moving per

10 second through the stream -- explained as much as 50

11 percent of the variation of daily minimum" -- I'm

12 sorry -- "daily median and minimum dissolved oxygen

13 concentrations in several of these systems." What do you

14 mean by that?

DR. GARVEY: That means that when you run a

16 linear regression on the data, so what you're doing is

17 you're regressing discharge that comes from the USGS

18 gauging station. It's either -- typically either

19 determined -- well, the gauges either determine -- they

20 call it grading curves, which relate water level to the

21 amount of water that's moving through the stream at any

22 given time. That's going to be the discharge data. What

23 I did is just looked at the average daily discharge for

24 that particular -- for the gauging station that was

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1 closest to that particular stream reach that I was

2 focusing on.

Anyway, you regress that, so you put that on the

4 X axis against what's the Y, which is one of your DO

5 values, median or minimum in this case, and if the two

6 perfectly agree with each other, then that would explain

7 100 percent of the variance. In other words, if for

8 every change in discharge the change in dissolved oxygen

9 changes perfectly with that, then it would be 100 percent

10 variation explained. What this is saying is that 50

11 percent of the variation, which is an awful lot of

12 variation in the data set, is actually explained, so that

13 means that with each change in discharge, there's a 50

14 percent I guess agreement in terms of the change in the

15 dissolved oxygen concentration.

MR. ETTINGER: So we're talking about the

17 derivative. We're not talking about the absolute,

18 because obviously the rivers have different discharge

19 levels, so I couldn't look at, say, the Rock River

20 discharge and the Fox River discharge and predict

21 anything about their relative dissolved oxygen --

DR. GARVEY: Absolutely not. It is totally

23 site dependent, and it turns out that if you look at each

24 site, you know, it varies from site to site.

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MR. RAO: Just for the clarification, the

2 analysis that you did are shown in Exhibit 5?

DR. GARVEY: Yeah.

MR. RAO: Where you have the plots?

DR. GARVEY: Yes, that's correct. The

6 discharge data are in Exhibit 5, yes, right.

MR. ETTINGER: Okay. You state at the end

8 of this page, page 4, "In my view, this further

9 complicates" -- I'm sorry. I should read the sentence

10 above that. "Thus, the physical characteristics of

11 streams interacting with flow largely drove much of the

12 oxygen dynamics. In my view, this further complicates

13 any attempts to fit a single standard to any stream in

14 the state and renews the urgent need to develop tiered

15 habitat-based criteria that incorporate how discharge

16 affects aquatic communities and water quality." What did

17 you mean by that?

DR. GARVEY: I mean that more or less, in my

19 opinion, if you are going to understand oxygen dynamics,

20 we're going to have to have a very good understanding of

21 the physical template of that particular stream and how

22 it interacts with all the other stuff that comes into it

23 to really make a prediction about oxygen, and you have to

24 develop more or less a model for oxygen, and it's based

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1 on all these factors for each particular stream site.

MR. ETTINGER: Is it your understanding that

3 the IAWA proposal is a tiered habitat-based criteria that

4 incorporates how different discharge affects aquatic

5 communities and water quality?

DR. GARVEY: The IAWA proposal --

MR. ETTINGER: Yes.

DR. GARVEY: -- does not incorporate

9 discharge, but it's based largely on the expectations for

10 the organisms that are present in those particular

11 streams, not on discharge.

MR. ETTINGER: So you're not saying that the

13 IAWA proposal does this. You're saying this is necessary

14 for the future?

DR. GARVEY: Yes.

MR. ETTINGER: Again, page 5, you discuss

17 some studies by -- that were -- Mark David was involved

18 in. He was one of several authors in a number of them,

19 but -- you would agree with that, right?

DR. GARVEY: That's correct.

MR. ETTINGER: But we'll call them all David

22 studies because he's commonly --

DR. GARVEY: He was the person in charge.

MR. ETTINGER: Okay. It says, "Although the

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1 general expectation was for dissolved oxygen dynamics in

2 their research streams in Illinois to be affected by

3 nutrient loading, they found that stream physical

4 characteristics, primarily basin shape and its propensity

5 to hold organic matter and intercept light, were more

6 important in influencing dissolved" -- I'm sorry -- "in

7 influencing oxygen concentrations." To cut short a long

8 series of questions, my question is, so what? Does it

9 have an effect on the biology of how organisms are

10 affected by dissolved oxygen whether this statement is

11 true or not?

DR. GARVEY: No.

MR. ETTINGER: No. So if hypothetically it

14 was nutrients that were driving the dissolved oxygen

15 problem, that wouldn't cause you to change your opinion

16 as to what the dissolved oxygen standard would be.

DR. GARVEY: Nope.

MR. ETTINGER: Okay. Here is a sentence I

19 am simply going to have to ask you what it means. This

20 is on page 6, the third sentence. I'm going to try and

21 read it. "Interestingly, these enhanced-tier segments

22 more frequently" -- paren -- "up to 20 percent of

23 observations" -- closed paren -- "exceeded the DNR/EPA

24 minimum of 5 milligrams per liter during July than the

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1 IAWA proposed standard of 3.5 milligrams per liter during

2 that month." What does that mean?

DR. GARVEY: Just a minute. I'm reading

4 this over one more time just to be 100 percent sure.

5 Okay. When I'm saying exceedances, what I'm talking

6 about is violations. In other words, when I say

7 exceedances, I am actually going lower than that

8 particular standard, and I actually get that from Bob

9 Mosher, but that's another long story. So what I'm

10 saying is that take a look at the DNR/EPA minimum of 5

11 milligrams per liter which has been proposed for July

12 through their proposal; that these -- that standard

13 particularly picked up to 20 percent of the time,

14 depending where you're looking at, dissolved oxygen going

15 lower than that particular concentration, and that

16 happened a lot more -- and I can't -- unless I go back

17 and look at Exhibit 3 more closely, I can't tell you what

18 the difference is. That means that the DNR/EPA standard

19 found violations far more frequently than the IAWA

20 proposed one.

MR. ETTINGER: Well, perhaps I was thrown by

22 the word "interesting." You would kind of surmise a

23 standard of 5 to be violated more than 3.5, wouldn't you?

DR. GARVEY: Excuse me? Can you say that

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1 again?

MR. ETTINGER: You would expect a standard

3 of 5 to be violated more than 3.5, so perhaps I was

4 thrown by the word "interestingly."

DR. GARVEY: If it never went below 5, then

6 it wouldn't go below 3.5, so neither one -- I mean, both

7 standards would show the same thing.

MR. ETTINGER: Got you. Have you done any

9 biological studies or are you familiar with any

10 biological studies done of the Fox River subsequent to

11 the 2005 drought?

DR. GARVEY: No. I don't think anyone's

13 done any work in there in terms of publishing and/or

14 putting it into -- I mean, I don't know if there's been

15 monitoring, but --

MR. ETTINGER: Do you know whether in fact

17 the biota in the Fox River suffered any short-term or

18 lasting effects as a result of the 2005 drought?

DR. GARVEY: No, I do not.

MR. ETTINGER: So you don't really know

21 whether Liebig's Law is applicable to the Fox River for

22 this period.

DR. GARVEY: Well, it's a law for ecology

24 for a reason, because it's generally applicable to all --

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1 let me make a qualification.

MR. ETTINGER: Well, I'm sorry. I misstated

3 that question. We don't really know whether in fact the

4 Fox River wasn't injured by the conditions present in

5 2005.

DR. GARVEY: Mostly like it was to the

7 extent that it has an effect on the organisms that are

8 out there, but, you know, that's within the norm of what

9 that particular system experiences through time.

MR. ETTINGER: Correct. So Mr. Frevert's

11 statement, however, that the Fox River data of 2005 was

12 during a drought period is of some interest unless we

13 know that there was no damage done to the river by the

14 drought.

DR. GARVEY: Can you restate that question,

16 or was that a question or was that a statement?

MR. ETTINGER: Well, it's not really a

18 statement. It was a question. Let me try and -- It

19 wasn't very articulately worded. The implication --

20 Mr. Frevert gave you data and said that it might be of

21 less significance than it would be otherwise because it

22 was taken during a drought period.

DR. GARVEY: Right.

MR. ETTINGER: Your answer is no, it doesn't

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1 matter, because we should look at the worst possible

2 conditions and see what effect that has on the system.

DR. GARVEY: Correct.

MR. ETTINGER: I'm asking, without knowing

5 what effect those conditions had on the system since we

6 don't have any data on the Rock River since the

7 drought -- I'm sorry -- the Fox River since the drought,

8 is your statement warranted?

DR. GARVEY: Well, again, as Liebig's Law

10 states -- and this is a very different issue than

11 developing a standard associated with a toxin, all right?

12 I think that's something that a lot of people need to

13 understand. With a toxin, obviously you're dealing with

14 something that's associated with human activities, and so

15 you don't want to increase the concentration of that

16 toxin to a point where it's going to have a deleterious

17 effect and get close to that deleterious effect on the

18 organisms that are out there. Oxygen is a naturally

19 occurring substance, like nitrogen, phosphorous,

20 sunlight, air, you know, all those sorts of things, and

21 so through time it varies. We know that from the data

22 that we have. And so again, the presence of the

23 organisms that are out there isn't associated with the

24 2005 drought and associated with the drought that

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1 occurred years before or -- it's a representation of the

2 conditions, the extreme conditions that occur even

3 occasionally through time. That's the basis of much of

4 modern community ecology, is looking at disturbances and

5 how they affect the organisms that are there. So I don't

6 really need to look at the 2005 data and tell you whether

7 the organisms had an impact or not, because the organisms

8 that are present in a particular system are

9 representative of the factors that influenced it through

10 more or less ecological time.

MR. ETTINGER: Do you get up to Kane County

12 much?

DR. GARVEY: No, I do not.

MR. ETTINGER: Are you aware of the level of

15 development and increases of discharges in the Fox River

16 over the last 20 years?

DR. GARVEY: No.

MR. ETTINGER: Do you know whether there

19 were any long-term effects on the Fox River of any of

20 those changes?

DR. GARVEY: Sure, there were, but then that

22 should be placed into a status that's based on those

23 factors and --

MR. ETTINGER: Do you know whether any of --

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1 any species have been permanently lost from the Fox River

2 as a result of the 2005 drought?

DR. GARVEY: Of course not.

MR. ETTINGER: Last sentence here in page 7,

5 "Even given this caveat, I thought it might be

6 interesting to determine whether average dissolved oxygen

7 concentrations" -- quote -- "improved" -- unquote -- "in

8 Illinois surface waters through time as nutrient loading

9 abated during the past 30 years as a function of the

10 Clean Water Act." Is it your understanding that the

11 Clean Water Act controls nutrient discharges?

DR. GARVEY: It controls the level of

13 phosphorous that's being placed into water bodies

14 throughout the country. That's one of the reasons why

15 the Great Lakes has increased in water quality.

MR. ETTINGER: Is it your understanding that

17 Illinois wastewater treatment plants routinely have

18 nutrient limits?

DR. GARVEY: I honestly -- I mean, yes, I

20 know that they do have limits.

MR. ETTINGER: Is it your understanding that

22 the Clean Water Act applies to agriculture?

DR. GARVEY: Clean Water Act does not apply

24 to agriculture. It applies to point discharges.

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MR. ETTINGER: What is your understanding of

2 the principal source of nutrients in the waters of --

DR. GARVEY: Right now --

MR. ETTINGER: I'm sorry. Let me finish the

5 question or she will have problems with both of us. What

6 is your understanding of the principal sources of

7 nutrients into Illinois waters?

DR. GARVEY: Right now, it's -- as far as I

9 understand, primarily nitrogen is coming out of the farm

10 fields.

MR. ETTINGER: And is that regulated by the

12 Clean Water Act?

DR. GARVEY: Absolutely not.

MR. ETTINGER: Do you know whether nitrogen

15 has gone up or down over the last 30 years?

DR. GARVEY: It's certainly gone up.

MR. ETTINGER: So is there any validity in

18 this statement at all here?

DR. GARVEY: Yes, there is, because the

20 reality is that the major limiting nutrient in most fresh

21 waters is phosphorous. It's not nitrogen.

MR. ETTINGER: What studies do you have that

23 phosphorous levels have reduced -- been reduced over the

24 last 30 years?

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DR. GARVEY: Well, I'm just assuming that, I

2 guess.

MR. ETTINGER: I guess you are. Would it

4 surprise you that Mark David has studied phosphorous

5 loadings in Illinois waters in a paper that was put out

6 in 2000 and looked at nutrient levels?

DR. GARVEY: I haven't read that paper, no.

MR. ETTINGER: Okay. Thank you. Again, you

9 say that discharge drives much of the variation in

10 dissolved oxygen concentrations in low-gradient Illinois

11 streams. Is that true of all streams?

DR. GARVEY: No, actually, I don't know

13 whether that's the case or not.

MR. ETTINGER: Perhaps I should read the

15 whole sentence, then. "I also procured USGS daily

16 monitoring data for discharge from gauging stations near

17 the river segments to test the hypothesis that the

18 discharge drives much of the variation of dissolved

19 oxygen concentrations in low-gradient streams," and you

20 don't know whether -- how that came out.

DR. GARVEY: Excuse me? That's -- That was

22 the whole basis of the analysis.

MR. ETTINGER: Okay. What did you conclude

24 with regard to the extent to which discharge drives

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1 dissolved oxygen limits?

DR. GARVEY: Up to 50 percent of the

3 variation in oxygen in the streams, at least starting

4 that particular year, was affected by discharge.

MR. ETTINGER: Is that true of all streams?

DR. GARVEY: It's true of typically

7 low-gradient streams in Illinois, but you know what

8 science is. It's standardizations.

MR. ETTINGER: Now, that's the average and

10 the minimum, right?

DR. GARVEY: The median and the minimum DO

12 concentrations, sure.

MR. ETTINGER: Okay. Well, it certainly

14 doesn't dictate the maximum.

DR. GARVEY: The reason I don't give a

16 maximum is because maximum's also dictated a lot by

17 productivity and sunlight, and so I use median as a

18 measure of central tendency.

MR. ETTINGER: Yeah. In fact, let's look at

20 some of these charts that you've given from the Fox River

21 in Ashland or Kickapoo or Fox at Aurora. Let's look

22 at -- I'm sorry. This whole thing's not paginated, but

23 we've got some numbers from the Fox that are Oswego --

HEARING OFFICER MCGILL: I'm sorry.

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1 Mr. Ettinger, this is in the prefiled testimony?

MR. ETTINGER: It is, and I'm sorry. Is

3 there some way to identify the pages within the exhibits

4 of your prefiled --

DR. GARVEY: You can identify it as figure

6 number, which is on the bottom.

MR. ETTINGER: Okay. Figure 3.

DR. GARVEY: In Exhibit --

MR. SMOGOR: There's numerous Figure 3s.

MR. ETTINGER: It's Exhibit -- Figure 3 to

11 Exhibit 4, I'm told.

DR. GARVEY: No, it's Exhibit 5, Albert.

MR. ETTINGER: I'm sorry. Exhibit 5. I

14 didn't get little tabbies or anything on mine. I'm

15 sorry. Looking at those numbers, just -- have you

16 found -- have we all found where we are yet?

DR. GARVEY: So it'd be Figure 3 of Exhibit

18 5 if I understand you correct, Albert. Yeah, that's it.

MR. ETTINGER: Yeah, I think that's right.

20 I just picked this one at random. All right. Just

21 looking at any of these numbers, you'd agree that there's

22 a lot of variation going on here between the maximum and

23 the minimum?

DR. GARVEY: Yes, sir.

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MR. ETTINGER: You would not claim that that

2 was due to differences in discharge, would you?

DR. GARVEY: That's due to diurnal

4 differences and basically sunlight and primary

5 productivity, probably.

MR. ETTINGER: And so the swings we're

7 seeing are relating essentially to -- what were you

8 saying -- dial productivity?

DR. GARVEY: Diurnal changes. Basically,

10 sunlight shines on the stream, the primary producers are

11 starting to produce oxygen, and then they basically

12 become supersaturated within the water, and that's why

13 after June typically you see dissolved oxygen

14 concentrations increase dramatically.

MR. ETTINGER: Is there any relationship

16 between the extent of the diurnal swings and discharge

17 that you found?

DR. GARVEY: Well, the analysis that I

19 did -- because I was looking at measures of central

20 tendency for the median at least -- it more or less took

21 out the maximum -- the effects of the maximum and the

22 minimum values during the day. In other words, what it

23 did is it more or less masked any effects of

24 photosynthesis on a daily basis and looked primarily at

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1 discharge. And I can do another analysis where I look at

2 both those things, but basically what you find is that on

3 a daily basis, yeah, oxygen was greatly affected by the

4 amount of sunlight that there was in a particular system.

MR. ETTINGER: And that's because of algal

6 growth, or rather vegetative growth in the water?

DR. GARVEY: Yeah, primarily.

MR. ETTINGER: Did you do any study that

9 looked at the extent to which the flow of water was made

10 up of sewage discharge versus dissolved oxygen levels?

DR. GARVEY: No, I did not. I don't know if

12 that would be possible with what I had, the information I

13 had.

MR. ETTINGER: Were you aware of how sewage

15 discharge varies with flow in the river?

DR. GARVEY: Slightly familiar with it, I'm

17 sure. The more discharge -- If I understand right,

18 overflow occurs during periods of high --

MR. ETTINGER: Well, would it be surprising

20 to you to learn that as the flow of the river falls that

21 a larger amount of it is sewage --

DR. GARVEY: Sewage, yeah.

HEARING OFFICER MCGILL: If you could --

24 You're talking over each other.

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MR. ETTINGER: I'm sorry. One of us --

HEARING OFFICER MCGILL: Let Mr. Ettinger

3 finish the question.

MR. ETTINGER: Yes. I realize --

DR. GARVEY: You say it and I'll say yes.

MR. ETTINGER: I understand I'm sort of slow

7 and plodding and you can see where I'm going, but you

8 still have to let me do it anyway. I know it's

9 irritating, but I have a lot of trouble with that dealing

10 with more intelligent people. So you would see that if

11 the flow in the river is lower that a larger proportion

12 of the water in it is likely to be sewage discharge.

DR. GARVEY: Yes.

MR. ETTINGER: Says here in the last -- on

15 page 9 it says, "Regardless of the underlying causes,

16 given that discharge can explain up to 50 percent of the

17 variation in dissolved oxygen concentrations during both

18 severe drought and non-drought years, this issue needs to

19 be incorporated into standard development and

20 interpretation." How would you do that?

DR. GARVEY: I don't know, but it needs to

22 be done.

MR. ETTINGER: And I assume you're not

24 claiming that the IAWA proposal has done that.

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DR. GARVEY: No, it does not.

MR. ETTINGER: Okay. Here it says -- I'm

3 still on page 9 -- "Typically, both standards demonstrate

4 that several of the stream segments, including those in

5 the DuPage, Fox and Kickapoo Rivers, failed to meet the

6 season-dependent acute minima, even given the proposed

7 enhanced status of these systems." Is it your

8 understanding that these violations you've found of those

9 waters are all in segments that were identified for

10 enhancement -- enhanced protection by IEPA and IDNR?

MR. HARSCH: However, we corrected the --

DR. GARVEY: The Wheaton DuPage.

MR. ETTINGER: Okay. So it's --

MR. STREICHER: Well, the DuPage, we'd have

15 to take a look, because Naperville is discharging into

16 DuPage, and that wasn't --

HEARING OFFICER MCGILL: I'm sorry.

18 Mr. Ettinger, what document are you referring to?

MR. ETTINGER: I'm now back -- I'm back on

20 his main testimony.

HEARING OFFICER MCGILL: Okay. So you're in

22 the prefiled testimony.

MR. ETTINGER: I'm sorry. I'm back on page

24 9 of the prefiled testimony.

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HEARING OFFICER MCGILL: And was there a --

2 Mr. Harsch, was there a correction to the prefiled

3 testimony?

MR. STREICHER: I just wanted to correct him

5 maybe, because we're using DuPage in two different

6 places. The Wheaton Sanitary District is on the west

7 branch of DuPage, and that was included in some of the

8 data that's not an enhanced segment. The City of

9 Naperville discharges -- as well as Plainfield discharges

10 to the main stem of the DuPage River, which is an

11 enhanced segment. So maybe we need to tease out -- when

12 we say DuPage, it likely is talking about that main stem

13 portion.

MR. ETTINGER: Okay. I'm not going to go on

15 this any more, but if there is a clarification to be made

16 later, perhaps IAWA can make it in some subsequent

17 filing. Then here in the next sentence it says,

18 "However, the Rock River, which is listed as impaired due

19 to low oxygen, did not fail to meet any of the minimum

20 criteria."

DR. GARVEY: That's my understanding.

MR. ETTINGER: What do you mean, listed? Is

23 that the 305(b) list that you're referring to, I guess is

24 my question?

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DR. GARVEY: Yeah, that's -- 303(d), yeah.

MR. ETTINGER: Okay. Again, here I'm -- in

3 the next paragraph, "Interestingly, the IAWA proposed

4 seven-day minimum standard of 4 milligram per liter,

5 which applies during July through February, generated

6 more violations than the IDNR/IEPA seven-day mean minimum

7 of 7.5 milligrams per liter, which starts in August."

8 4.5. I'm sorry. "4.5 milligram per liter, which starts

9 in August." Again, now, could you explain that?

DR. GARVEY: What that means is that I was

11 looking at more or less these two standards, which I

12 expected both a mean minima, and actually, originally I

13 thought 4 milligrams per liter would be less able to pick

14 up particular problems in terms of DO, but when I ran the

15 analysis on the data, what I found is that it actually

16 identified more problems as a mean-minimum criteria in

17 terms of finding just violations. Whether that means

18 that the dissolved oxygen concentration went below that

19 mean minimum of 4 milligrams per liter over seven days

20 than the seven-day mean minimum of 4.5 milligrams per

21 liter that IDNR/IEPA suggested which was -- started in

22 August. I don't know if that was any clearer than the

23 sentence.

MR. ETTINGER: Okay.

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MR. RAO: Dr. Garvey, I have a clarification

2 on that --

DR. GARVEY: Sure.

MR. RAO: -- point. When you made this

5 comparison between the two standards, did you apply those

6 standards for the same period of the data that you had --

7 like, the IDNR standard you said starts from August and

8 yours is from July, so did you compare it by applying the

9 4.5 from July itself?

DR. GARVEY: No, I did not. What I did is I

11 applied the standards as they were written associated

12 with the time periods, and that was more or less to look

13 at the impact of that July we call it transitional period

14 and see how the two standards work either including July

15 or excluding July. In this case it's including July for

16 the mean minimum for IAWA but excluding the mean minimum

17 for IDNR/IEPA until August. Does that clarify that? So

18 it is kind of comparing apples to oranges in a lot of

19 ways.

MR. RAO: Okay.

DR. GARVEY: I mean, Dennis makes a good

22 point. What it's doing is it's showing that the IAWA

23 proposal is actually more sensitive in a sense, so -- and

24 that was the point I was trying to make.

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MR. RAO: Okay.

HEARING OFFICER MCGILL: Did you apply the

3 DNR/IEPA July standard to the data?

DR. GARVEY: Yes, I did, and that would have

5 been -- that would be a minimum of 5 milligrams per liter

6 and it was less sensitive -- I need to go back and check,

7 but I'm pretty sure it was less sensitive in picking up

8 the problems than the 4.5 seven-day mean, so -- but I

9 would need to check that.

HEARING OFFICER MCGILL: Maybe that could be

11 clarified in a public comment.

MR. ETTINGER: There are some -- going back

13 I guess to -- we decided this was Exhibit 5 -- Exhibit 5,

14 I got Figure 2; I got Fox River Aurora. We see numbers

15 for dissolved oxygen, which unless I'm seeing

16 incorrectly, seem to go down almost to 0. Is that a

17 correct reading of that chart?

DR. GARVEY: Aurora? Yeah. In July and

19 June, yeah, we had very low concentrations. Oh, in 2005.

MR. ETTINGER: Is it safe to say that the

21 fish weren't present wherever that meter was at that

22 time?

DR. GARVEY: Yeah, probably. Either that or

24 they were dead.

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MR. ETTINGER: They were either dead or they

2 weren't present there.

DR. GARVEY: Probably moved out of the area.

4 I agree with previous testimony by Steve that the reality

5 is is that I've seen also that fish will move out of

6 areas when dissolved oxygen concentrations decline as

7 long as the area is still contiguous with an area that

8 has higher dissolved oxygen concentrations.

MR. ETTINGER: So it -- if someone were to

10 come here today and say, "Gee, there are good fish in the

11 Fox River but the Fox River has zero dissolved oxygen in

12 it at some time; therefore we could set the dissolved

13 oxygen standard at zero," you would disagree with them.

DR. GARVEY: I would disagree with that

15 because there are sites, say for example in the third

16 panel down, that you see that dissolved oxygen didn't

17 decline nearly as much as it did the other areas, which

18 means there are more refugees on that particular system.

MR. ETTINGER: So they probably swam out of

20 that place.

DR. GARVEY: Hopefully.

MR. ETTINGER: Yeah. So can you -- never

23 mind. It says, "Dynamics" -- I'm sorry. I'm on page 8.

24 "Dynamics of dissolved oxygen vary widely among the

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1 enhanced tier stream segments from daily concentrations

2 varying widely in the Fox River to less so in the

3 Vermilion River. Both median and minimum daily dissolved

4 oxygen concentrations typically declined as the summer

5 progressed in the Fox, DuPage and Kickapoo Rivers, but

6 not the others." Do you have any understanding of why

7 that may be?

DR. GARVEY: Happened again in the data that

9 I just presented in 2006, so the information that I just

10 added to my written testimony. Honestly, I can't answer

11 that question. I don't know why.

MR. ETTINGER: And then finally, you

13 would -- I think that time has come for those who have

14 hung back to ask their questions now.

MS. WILLIAMS: I think -- You know, my

16 technical staff told me they probably won't have

17 thoroughly reviewed what Dr. Garvey brought by tomorrow

18 morning either, so I could probably ask two or three

19 questions of him today and then we could be done with him

20 rather than having him come back in the morning just for

21 that purpose.

HEARING OFFICER MCGILL: We have some

23 questions as well, and depending when we wrap up tonight

24 will dictate that.

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MS. WILLIAMS: Okay.

HEARING OFFICER MCGILL: Did you have a

3 couple questions you'd like to pose now?

MS. WILLIAMS: Whichever you prefer. I can

5 get them done now pretty quickly. It's just two or

6 three.

HEARING OFFICER MCGILL: Sure. Go ahead.

MS. WILLIAMS: Dr. Garvey, I think Roy tried

9 to bring out in your testimony your role with the

10 Illinois chapter of the American Fisheries. You're the

11 new president; is that --

DR. GARVEY: Not yet. Next year I will be.

13 I'm president-elect right now.

MS. WILLIAMS: And it's correct, isn't it,

15 that they submitted a public comment in this proceeding?

DR. GARVEY: Yes, they did.

MS. WILLIAMS: And isn't it true that that

18 comment supported a date of at least July 31 for the

19 sensitive life stage period?

DR. GARVEY: At that point in time, yes.

21 However, they have not been briefed on the data that have

22 been produced over the last two years, nor have they

23 probably had an opportunity to review Mark David's

24 results as well, and so if -- obviously I can't speak for

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1 the Society and I don't know what they'd say, but it

2 would be good for the executive committee of the American

3 Fisheries Society in Illinois and the expanded executive

4 committee to look and review the additional information

5 that's been presented over the last couple years and then

6 present it to the general membership and see what kind of

7 opinions are out there.

MS. WILLIAMS: Maybe during the public

9 comment period they'd want to --

DR. GARVEY: I think it would be very

11 important for them to do that.

MS. WILLIAMS: Do you agree with USEPA's

13 conclusion in the national criteria document to group

14 small-mouth bass with the salmonids in terms of

15 sensitivity?

DR. GARVEY: As I've testified at previous

17 hearings, I have trouble with the small-mouth bass for a

18 variety of reasons. One is its distribution in warm

19 water systems. We identify them in the southern part of

20 the state as well as the northern part of the state.

21 They're widely distributed and seem to have broader

22 thermal tolerance than we expected. They also happened

23 to be found in reservoirs in the state that obviously

24 have much higher thermal temperatures than you might

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1 expect a small-mouth bass to reside in, so that's a tough

2 species to sort of --

MS. WILLIAMS: So you disagree with what

4 they did?

DR. GARVEY: I'd say that I'm skeptical

6 about it.

MS. WILLIAMS: And you've looked at the list

8 of sensitive fishes that EPA and DNR submitted in the

9 technical support document?

DR. GARVEY: Yes, I have.

MS. WILLIAMS: Do you believe that any of

12 those fishes at all that we've listed are more sensitive

13 to low DO than large-mouth bass or channel catfish?

DR. GARVEY: I think it's difficult for me

15 to answer that question without having data that are

16 direct from a laboratory situation.

MS. WILLIAMS: And I think in your testimony

18 you referenced a paper by Smale and Rabeni?

DR. GARVEY: Yes.

MS. WILLIAMS: And they have done lab tests,

21 correct?

DR. GARVEY: Yes.

MS. WILLIAMS: Isn't it correct that in

24 those studies, seven of nine species were found to be at

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1 least as sensitive as small-mouth bass?

DR. GARVEY: Yeah. I'd have to go back and

3 look, but, yeah, I think that's right.

MS. WILLIAMS: Do you know just off -- from

5 your consultation with Dennis and his members, are you

6 familiar with whether the data that was included I guess

7 in Exhibit 34 and their letters in Exhibit 33 -- did

8 these folks follow the protocols that you recommended in

9 the Garvey and Whiles report for sampling?

DR. GARVEY: I think they followed what

11 worked best for them, which was placing them on bridges

12 and, you know, doing what everyone else does. In terms

13 of putting them three-quarters of the way down or

14 two-thirds of the way down -- I don't remember exactly

15 what we said -- no, I don't think that they did that.

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

17 Agency has at this time.

HEARING OFFICER MCGILL: We had just a few

19 follow-up questions that I think will go pretty quickly.

20 Do you want to start?

MR. RAO: Okay. I think some of our

22 questions Mr. Ettinger has been gracious enough to ask

23 for us, so we'll try to -- at page 2 of your testimony

24 you refer to low-gradient systems, and I think that

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1 phrase has been referred in other places also, so just

2 for the purposes of the record, can you please explain,

3 you know, what low-gradient systems mean and how they're

4 important in terms of dissolved oxygen dynamics?

DR. GARVEY: Yeah. Gosh, I do use that a

6 lot, and, you know, when you typically think about that

7 and if you were to ask me right now -- you just did --

8 what that is in terms of discharge, I honestly can't tell

9 you. It would probably be more associated with the slope

10 of a particular stream, but, yeah, I'm -- I would have to

11 go back and tell you exactly what I mean by that.

MR. RAO: If you address that in your

13 comments, that'll be good.

DR. GARVEY: Yeah, I'll do that.

HEARING OFFICER MCGILL: This is -- On page

16 3 of your prefiled testimony there's a reference to the

17 Csoboth thesis and you've referred to it throughout the

18 day. What review has that thesis undergone?

DR. GARVEY: Both -- There were two papers

20 that were generated from them. Both of them are

21 currently in the review process. One of them was

22 submitted to the Transactions of the American Fisheries

23 Society. We have not heard back on that one yet. The

24 other one has been submitted to the Canadian Journal of

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1 Fisheries and Aquatic Sciences, and we're still waiting

2 to hear on that one. So, you know, there's no guarantees

3 how the peer review process works, but it has been looked

4 at by -- she's defended -- successfully defended her

5 thesis, so it passed the muster of the committee, which

6 is -- was comprised of a limnologist, Dr. Frank Wilhelm,

7 and I believe Dr. Eric Schauber, who's a population

8 biologist in our department. So it has had some peer

9 review.

HEARING OFFICER MCGILL: Thank you.

MR. RAO: And when you refer to the thesis,

12 are you referring to the discussion of the larval

13 abundance on page 17 of the thesis?

DR. GARVEY: I believe so.

MR. RAO: And Figure 4 at page 65? Were

16 those, you know, some of the relevant information that

17 you are trying to support your position on?

DR. GARVEY: Yes, I believe. I would have

19 to check.

MR. RAO: Can you please check and explain a

21 little bit more about how those findings support your

22 position?

DR. GARVEY: I'll be happy to do so.

HEARING OFFICER MCGILL: And the primary

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1 support is for the issue of the month of July and whether

2 it's a sensitive stage month or not; is that correct?

DR. GARVEY: Right. Yes, correct.

HEARING OFFICER MCGILL: Thank you.

DR. GARVEY: And it is page 74, Figure 13,

6 which includes both the backwater lake and the Illinois

7 River. What it shows is that the Illinois River in 2004

8 and 2005 produced larvae a little bit later than the

9 backwater, and we attribute that largely to differences

10 in probably warming, the two water bodies. The backwater

11 warmed faster than the river. That's the reason why we

12 saw a big difference.

MR. RAO: Earlier in IAWA's testimony at the

14 previous hearing, there was, if I can recall right, a

15 July 15 date proposed as something that would be

16 acceptable to IAWA. Is that correct?

DR. GARVEY: I'll have Dennis cover that

18 one.

MR. STREICHER: Again, during the

20 stakeholder process I mentioned in my testimony, there

21 was a number of different iterations of things that were

22 thrown out there when we got into an impasse, and July 15

23 was one of the potential compromise dates that was

24 discussed, along with other things, and as I said also,

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1 the stakeholder process essentially broke down. I didn't

2 see there being any value to any of the discussions that

3 we had.

MR. RAO: So that data's got nothing to do

5 with Dr. Garvey's recommendation.

DR. GARVEY: (Shakes head back and forth.)

MR. RAO: Okay.

DR. GARVEY: No, that's not currently

9 incorporated in my testimony. And I'd like to apologize

10 and make one correction. The committee members on

11 Laura's thesis were Dr. Frank Wilhelm, as I mentioned.

12 It wasn't Eric Schauber, but it was Dr. Matt Whiles, the

13 coauthor of the report.

HEARING OFFICER MCGILL: This page 6 of your

15 prefiled testimony, Dr. Garvey, you state that the grab

16 DO data that you got from the DNR and EPA from 1994 to

17 2003, you said in streams that have fully met their

18 aquatic use designation. What is aquatic use designation

19 and -- having been met?

DR. GARVEY: I meant this by streams that

21 were not listed in the 305(b) process.

HEARING OFFICER MCGILL: Thank you.

23 Dr. Garvey, pages 9 and 10 of your prefiled testimony,

24 there's a sentence where you state, "In my view, it

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1 appears that many of these streams, particularly the Fox

2 River, fail to provide adequate oxygen for aquatic life

3 during part of the summer." Could you just explain that

4 statement or what -- and what you mean by adequate?

DR. GARVEY: What I mean is that it went far

6 below that 3.5 milligram per liter and even below -- I

7 think Albert pointed that out, even the 3 milligram per

8 liter point, and so in my opinion, whatever organisms

9 were there were either severely stressed or in trouble

10 unless there was some refuge that they could move to,

11 contiguous habitat or something like that, which means

12 that in that vicinity of that particular reach, there

13 needed to be an area of dissolved oxygen that at least on

14 an average probably had higher than 4 milligrams per

15 liter over seven days.

HEARING OFFICER MCGILL: Thank you. In your

17 conclusion, after you indicate that -- scrapping the DO

18 standard as a current possibility, you suggest that

19 the -- I take it that when you say Garvey and Whiles

20 report, I take it you mean the IAWA proposal should be

21 adopted in the interim.

DR. GARVEY: Correct.

HEARING OFFICER MCGILL: And by interim, I

24 take it you mean that at some point you'd like to see a

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1 habitat-based tier designation adopted?

DR. GARVEY: That is correct. That is my

3 dream.

HEARING OFFICER MCGILL: Is there some

5 standard in lieu of dissolved oxygen that you would favor

6 having in the interim before that dream comes true?

DR. GARVEY: That's a good question, and

8 honestly, I -- like I said, at this point I think we're

9 stuck with some sort of dissolved oxygen standard until

10 we can get to a more appropriate habitat-based tier use

11 designation, and we're just not there yet.

HEARING OFFICER MCGILL: Just two real

13 quick -- two very quick questions. In the sensitive

14 season, the IAWA proposal calls for a, quote, seven-day

15 mean while the Agency/DNR proposal calls for a daily mean

16 averaged over seven days. Are there any differences

17 between those two concepts?

DR. GARVEY: This is going to be awful, but

19 Dennis was just talking to me and I missed part of it.

20 I'm sorry.

HEARING OFFICER MCGILL: Oh, I can repeat

22 that. I've always wanted to say have the court reporter

23 repeat that, but I can do it. IAWA calls for a seven-day

24 mean in its proposal but the Agency/DNR proposal calls

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1 for -- let me make sure I'm reading it right. The IAWA

2 proposal for the sensitive season calls for a seven-day

3 mean of 6, okay, and the IEPA refers to a daily mean

4 averaged over seven days of 4. I'm not interested in the

5 numbers as much as the differences, if any, between the

6 seven-day mean and the daily mean averaged over seven

7 days.

DR. GARVEY: I apologize. That's the same

9 thing.

HEARING OFFICER MCGILL: Same thing.

DR. GARVEY: I'm sure that they're

12 calculated similar, the same way.

HEARING OFFICER MCGILL: Okay. And I -- And

14 for the less sensitive season, the same question. Is

15 there any difference between a daily minimum averaged

16 over seven days versus a seven-day mean minimum?

DR. GARVEY: No, not to my understanding.

HEARING OFFICER MCGILL: And in terms of

19 areas of agreement between IAWA and the DNR/Agency

20 proposal, there's the narrative standard, the 30-day

21 averaging. The DNR/IEPA proposal also has a subsection

22 (d) called "Assessing Attainment of Dissolved Oxygen Mean

23 and Minimum Values," and it's got four subsections. I

24 don't know if you're familiar with that provision, but is

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1 the IAWA comfortable with that particular subsection,

2 proposed subsection, 302.206?

DR. GARVEY: I'll give that to Dennis to --

HEARING OFFICER MCGILL: We can --

5 Mr. Streicher's going to be here tomorrow. We can -- I

6 wasn't sure if that was something that wanted to get your

7 input on before you left today. Okay. I didn't have any

8 further questions. Anybody -- Are there any additional

9 questions?

CHAIRMAN GIRARD: I just have a quick one,

11 Dr. Garvey. Earlier today in your testimony you

12 referenced a paper that I think you said was delivered at

13 a conference that dealt with glochidia survival in

14 relation to DO concentrations. When you submit your

15 comments, could you please submit a copy of that paper?

DR. GARVEY: Most certainly, and in fact, I

17 have a copy of it if you'd just like to have it right

18 now.

CHAIRMAN GIRARD: That would probably be

20 better.

HEARING OFFICER MCGILL: It'll cut down on

22 your mailing expenses. Public comments have to go to the

23 service list, so --

DR. GARVEY: Here it is if you want to --

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1 it's just an abstract, and the reality is -- again, I'll

2 qualify that until it's actually in the peer review

3 literature, it's still just an abstract, so that's

4 something you need to take into consideration when you

5 look at this.

HEARING OFFICER MCGILL: Mr. Harsch, are

7 you --

MR. HARSCH: Be happy to produce it as an

9 exhibit. 37?

HEARING OFFICER MCGILL: 37. And could --

11 if I could just get a copy of that. What is it entitled?

DR. GARVEY: It's called "The Effect of

13 Hypoxia on Brood Survival in the Freshwater Mussel," and

14 then you can see the scientific name.

HEARING OFFICER MCGILL: Thank you. Is

16 there any objection to entering that document as Hearing

17 Exhibit 37?

MS. WILLIAMS: I don't have an objection,

19 but I know sometimes the hearing exhibits don't get put

20 up on the Web. Is there some way we can make sure that

21 copies are provided tomorrow?

MR. HARSCH: That's our only copy.

HEARING OFFICER MCGILL: We can xerox --

MR. HARSCH: It's your building.

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MS. WILLIAMS: I can bring copies if you

2 want to let me have it, but I think that's --

MR. HARSCH: That would be great. I would

4 like a copy personally.

HEARING OFFICER MCGILL: Yeah, we'll have

6 some copies made and I'll bring them tomorrow morning.

MR. HARSCH: Thank you.

BOARD MEMBER MOORE: Excuse me. I just have

9 one question. This information that you submitted from

10 Fox Metro where they collected on the proposed enhanced

11 stream segments, if I understood correctly, 8 percent of

12 the state's streams would be included in that enhanced

13 stream segment area. I'm interested -- I think you had

14 eight people that collected, if I counted that right, and

15 I'm not sure those were all actually on enhanced stream,

16 but somewhere around there. How many of your members

17 would be affected by the enhanced stream sections versus

18 what the proposal of the IAWA has? How many additional

19 members?

MR. STREICHER: That's a good question. I

21 don't know.

MR. HARSCH: That's a great question,

23 because we tried to get the data from the Agency people

24 to address that issue as to the exact locations so we

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1 could compare it to the location of discharge, and it

2 proved to be an almost monumentally difficult task. They

3 have to know where they are. They have to figure out

4 where those enhanced segments start and stop.

MR. STREICHER: I don't have the exact

6 answer to that, but --

BOARD MEMBER MOORE: Do you have an

8 approximate?

MR. STREICHER: Well, let me -- I -- we

10 passed out at one of our technical meetings a detailed

11 list of the latitude/longitude locations where the

12 enhanced segments were proposed, and we asked members to

13 check their outfalls and determine whether or not they

14 were in those segments and get back to me. Those eight

15 that did are the only ones that responded. We then asked

16 them if they would participate in this collecting of DO,

17 which they did, so --

BOARD MEMBER MOORE: Which we're very

19 appreciative of that.

MR. STREICHER: And let me say too that the

21 Kickapoo -- probably more on the Kickapoo responded than

22 are listed here. I think the Bloomington-Normal is on

23 Kickapoo, the new plant, but Peoria did the work on

24 Kickapoo and there's a proposed plant there, so they

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1 don't actually have a plant on that site, but they are

2 planning or thinking of, you know, siting one there

3 eventually, so they wanted to take a look at the river.

BOARD MEMBER MOORE: But the issue that I'm

5 looking to understand is the difference between what --

6 the proposal. Are those people going to be affected by

7 that also?

MR. STREICHER: Yes.

BOARD MEMBER MOORE: And so they're affected

10 one way or the other.

MR. HARSCH: Absolutely.

MR. STREICHER: Yeah.

MR. RAO: A follow-up to Miss Moore's

14 question. This is to the Agency. Do you have any

15 information regarding how many POTWs may be affected by

16 enhanced stream sections?

MR. FREVERT: A couple points I want to make

18 here. Number one is I don't know off the top of my head

19 how many permitted discharges in the state, whether

20 they're POTWs or some other kind, are tributary to these

21 waters that are identified for enhanced DO protection,

22 but irrespective of what that number is, I think it's a

23 leap of faith to assume that they're necessarily

24 automatically affected, and again, we're setting a

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1 standard to protect what we think the aquatic community

2 needs, not for the convenience of any particular source.

3 If there are problems with sources, we'll have to deal

4 with them, and there's a whole litany of regulatory and

5 administrative processes to deal with that, but I'm

6 really concerned when you jump to the conclusion that if

7 we identify a stream as needing a particular better water

8 chemistry than another stream it automatically leads to

9 an effect, detrimental or otherwise, to a permitted

10 source.

You know, most of the -- particularly the large

12 systems in the state of Illinois have incredibly

13 high-quality technology in their treatment plants and

14 they put out a good effluent product, and I personally

15 believe that the vast majority of them are not having a

16 detrimental effect on their receiving streams from a DO

17 perspective and I don't anticipate us going into a need

18 for a wholesale modification of those permits to crank

19 down their limits. There may be some -- Quite frankly,

20 whether it's an enhanced or the basic level, that's true.

21 The other thing we need to point out is what we're

22 recommending is indeed a relaxation of the minimum from

23 the current standard, so to the effect that those

24 facilities have a problem meeting the DO in the stream

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1 under our recommendation, they have it today under the

2 existing standard.

MR. HARSCH: From a policy standpoint, the

4 IAWA would agree with that. IAWA did not propose this

5 rulemaking in order to lower the dissolved oxygen water

6 quality standards so its members could better meet it,

7 but it was to develop an appropriate scientifically-based

8 dissolved oxygen water quality standard that would form

9 the basis for all of the programs that Toby's agency

10 administers, so it is difficult to identify those

11 specific POTW point source discharges. You also have

12 stormwater discharges; you've got industrial discharges.

13 There are a whole host of discharge permits on the data

14 that the Agency did try to provide us. It's a monumental

15 task to try to answer your question.

MR. ETTINGER: Excuse me. I had a limited

17 number of follow-up questions for Dr. Garvey. I'd like

18 to get them out tonight. It sounds like we're debating

19 some policy issues, which we should debate, but could I

20 just ask my questions so that Dr. Garvey's students

21 aren't deprived of their professor tomorrow?

HEARING OFFICER MCGILL: Sure. Go ahead.

MR. ETTINGER: Unless there are other

24 questions of that nature. I didn't mean to cut that off.

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1 I just didn't want to -- if possible, I wanted to make

2 sure we finished Dr. Garvey tonight.

Okay. I have just a limited number of questions

4 that were follow-up. Ms. Williams asked you regarding

5 the Fishery Society and how -- things that might cause

6 them to change their opinion, and you mentioned, among

7 other things, the David studies. Is there anything in

8 the David studies that speaks to the question of when

9 larval fish are present in waters?

DR. GARVEY: I think that what it might do

11 is give them more insight into what the limits to oxygen

12 capacity in the streams of Illinois are, and that might

13 give them some insight into what necessarily -- what

14 oxygen levels are available or should be available in

15 natural systems throughout the state. That was very --

16 well, I'm tired, but yes.

MR. ETTINGER: You understand Dr. David

18 studied a couple of streams in east central Illinois.

DR. GARVEY: That is true, and there are

20 other studies out there.

MR. ETTINGER: Okay. The Board's technical

22 staff asked a question -- and they understood your

23 answer, but I'm not as smart as they are -- regarding the

24 larval study, and you said -- I think it's page -- what

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1 exactly are the pages of this that you believe support

2 your statement regarding the larvae present?

DR. GARVEY: The pages of --

MR. ETTINGER: Of when they are present in

5 the --

DR. GARVEY: The Csoboth thesis you're

7 talking about?

MR. ETTINGER: Yes.

DR. GARVEY: Laura's thesis, if you look at

10 page 74 of her thesis --

MR. ETTINGER: Page 74.

DR. GARVEY: Of the thesis, which is

13 Exhibit -- 2? 1? It depicts the Illinois River at Swan

14 Lake, where she did her larval fish tows and worked very

15 hard to get these data in 2004 and 2005, and she did tows

16 both in the Illinois River and in the associated

17 backwater Swan Lake, and she basically quantified the

18 complete density of larvae from a volumetric standpoint,

19 number per cubic meter. What she found is that in both

20 systems over both years, the majority of larvae -- and

21 I'd say probably over 90 percent of them -- were produced

22 prior to the July 1, so the eggs and larvae were present

23 in these systems before July even kicked in.

MR. ETTINGER: I'm not her advisor, but

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1 is -- I've got the right thing here, page 74 with this

2 chart?

DR. GARVEY: Yes, sir.

MR. ETTINGER: Is it labeled larval here

5 somewhere, or is that in the text?

DR. GARVEY: It's implied from the thesis

7 itself. It doesn't say larval fish on it, but that's

8 larval fish density.

MR. ETTINGER: Well, perhaps one of her

10 advisors would make that suggestion, that she have that

11 word in the study. Is this broken down by species in any

12 way or is this just larval fish?

DR. GARVEY: Well, it's total larval fish

14 density, but during 2004 she found a very different

15 assemblage of larval fish that were produced during that

16 year than in 2005, and that was probably due to

17 characteristics of river discharge that affected the

18 spawning activity of the various adults. So it's

19 everything from -- I forget how many taxa, but it was a

20 large number. It's in -- I know it's getting late, but I

21 want to give you the table where she has all the --

MR. ETTINGER: Well, my question is just

23 this isn't broken down by species at all, so for all we

24 know, all of one species was done in March and all of

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1 another species did all of its work in July.

DR. GARVEY: That's a possibility, largely

3 driven by a few taxa, but if you look at Table 1, page 51

4 of her thesis, that includes all the different families

5 of fishes that were present, so it's not just dominated

6 by one or two taxa. We're talking about, you know, most

7 of the common species that are found in Illinois.

MR. ETTINGER: Right. Okay. Well --

DR. GARVEY: Common species, not the rare

10 ones.

MR. ETTINGER: But we just don't know how

12 it's broken down at all.

DR. GARVEY: No. I don't have a template.

MR. ETTINGER: Okay. Are you aware of any

15 studies that say that adult mussels are more sensitive to

16 low dissolved oxygen levels than glochidia?

DR. GARVEY: This abstract that I just

18 submitted as an exhibit was talking about adult versus

19 glochidia, and it does suggest that the adults, depending

20 on what species you're looking at, are more sensitive; at

21 least some species are.

MR. ETTINGER: I'm done. Thank you.

HEARING OFFICER MCGILL: Mr. Ettinger,

24 earlier you had referred to a David study from --

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MR. ETTINGER: I'm sorry. All the Mark

2 David papers that we were referring to.

HEARING OFFICER MCGILL: Right. You had one

4 I thought from --

MR. ETTINGER: Oh, yes.

HEARING OFFICER MCGILL: -- 2000 that's I

7 take it not part of the prefiled testimony.

MR. ETTINGER: It's not. I was going to --

9 I didn't really have any particular -- and since he

10 hadn't indicated that it had figured in his testimony, I

11 wasn't going to offer it to Professor Garvey now.

HEARING OFFICER MCGILL: I just wanted to

13 double-check with you.

MR. ETTINGER: I will certainly offer it if

15 people would like to see it now. I don't know what

16 exhibit we're up to.

HEARING OFFICER MCGILL: It would be 38.

MR. ETTINGER: Okay. Well, I mean --

HEARING OFFICER MCGILL: What is it

20 entitled?

MR. ETTINGER: It's got a catchy title.

22 "Anthropogenic Inputs of Nitrogen and Phosphorous and

23 Riverine Export for Illinois, USA."

HEARING OFFICER MCGILL: Any objection to

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1 entering this as a hearing exhibit? Seeing none, we'll

2 make that Exhibit 38. Any further questions for

3 Dr. Garvey?

MR. HARSCH: Just one follow-up.

5 Dr. Garvey, there was a question asked by Ms. Williams

6 regarding the letter that is in the board record from the

7 Illinois Association -- chapter of American Fisheries.

8 That was a letter generated by the executive committee?

DR. GARVEY: Well, the executive committee

10 and the expanded executive committee, which, you know,

11 consists of several ad hoc committees that were produced

12 through time, yeah.

MR. HARSCH: And that composition of that

14 committee changes over time?

DR. GARVEY: Yes, it does, as, you know,

16 people matriculate through the process, and then

17 eventually they're let go.

MR. HARSCH: And you're on that committee

19 right now.

DR. GARVEY: Yeah, I am.

MR. HARSCH: And you'd be expected to

22 probably support your testimony today?

DR. GARVEY: Yeah. Ann is the

24 secretary/treasurer, so I'd have to put her on the spot

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1 too. It's usually comprised -- The executive committee

2 is four members, usually comprised of two agency folks

3 and two academic folks, if that's right. Is that right,

4 Ann? That's typically the way we try to do it, so it's

5 kind of a balance between two different perspectives.

MR. ETTINGER: You are being paid a fee to

7 be here today, aren't you?

DR. GARVEY: I am.

HEARING OFFICER MCGILL: Any further

10 questions for Dr. Garvey?

MR. YONKAUSKI: Were you on the executive

12 committee in 2004?

DR. GARVEY: No, I was not, but they elected

14 me right after that.

HEARING OFFICER MCGILL: Any further

16 questions for this witness?

MR. ETTINGER: Does the American Fishery

18 Society have any rules against -- regarding conflicts of

19 interest of people voting on matters in which they're

20 receiving a fee to testify?

DR. GARVEY: I don't know. Maybe, maybe

22 not. I can abstain from the vote.

MR. ETTINGER: I guess we'll find out.

DR. GARVEY: There's also -- if that's a

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1 conflict of interest -- but agency personnel who are

2 making particular decisions being on that committee as

3 well. There's only so many fisheries professionals in

4 the state.

HEARING OFFICER MCGILL: And with that,

6 any --

MR. STREICHER: If I could respond to your

8 earlier question on the four subset items that you

9 mentioned if IAWA were comfortable with.

HEARING OFFICER MCGILL: Yes.

MR. STREICHER: We would -- We have no

12 problem with those four --

HEARING OFFICER MCGILL: The subsection (d)?

MR. STREICHER: Yes, just as a follow-up.

HEARING OFFICER MCGILL: Thank you. Seeing

16 no further questions for Dr. Garvey, I'll just remind

17 everyone that we're continuing the hearing tomorrow

18 morning at 10 a.m., and please keep in mind potential

19 prefirst notice public comment filing deadline dates,

20 which we'll talk about tomorrow and hopefully establish,

21 and I thank everyone for participating today.

(On November 2, at 6:21 p.m. the hearing was

suspended, and after such recess the

following proceedings were had on November

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3, commencing at 10:07 a.m.)

HEARING OFFICER MCGILL: Let's go on the

3 record. Good morning. I'd like to welcome everyone to

4 this Illinois Pollution Control Board hearing. My name's

5 Richard McGill. I'm the hearing officer for this

6 proceeding, a rulemaking entitled "Proposed Amendments to

7 Dissolved Oxygen Standard, 35 Illinois Administrative

8 Code 302.206." The board docket number for this

9 rulemaking is RO4-25. The IAWA, the rulemaking

10 proponent, is seeking to amend the Board's rule on

11 general use water quality standards for dissolved oxygen.

Also present today on behalf of the Board is

13 Board Member Andrea Moore, the lead board member for this

14 rulemaking; Chairman Tanner Girard; Board Member Thomas

15 Johnson, as well as Anand Rao of the Board's technical

16 unit. This morning we are continuing the fifth hearing

17 that started yesterday afternoon. I'll remind those

18 witnesses who were sworn in yesterday that you're still

19 under oath. At this point I'd ask if any of the board

20 members present would like to make any remarks.

BOARD MEMBER MOORE: Thank you. I just

22 wanted to thank everyone for your patience, because we --

23 the Board recognizes that this hearing has gone on for a

24 good length of time and everyone has made a very strong

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1 commitment in all the departments, and all of you from

2 the IAWA have also really been very good at

3 participating. I also wanted to remind everyone, even

4 though I know we know it, the Board is charged with a

5 slightly different role than everyone else, and we -- our

6 main purpose here is to establish a good record that we

7 can refer to in order that we might make a decision, and

8 so sometimes our questions might seem redundant to you or

9 you might wonder where they're coming from, but as we

10 review the record and see areas where we have developed

11 questions, that's why you'll see us sometimes asking

12 questions throughout the hearing, and I just thought it

13 might be helpful. We have -- We're charged with the

14 economically reasonable technically feasible charge in

15 the statute, and so you definitely have to get to those

16 issues. So with that, I wanted to thank everyone, and

17 just let's hope that this is our last day.

HEARING OFFICER MCGILL: Thank you, Member

19 Moore. I'll remind everyone that this proceeding is

20 governed by the Board's procedural rules, so all

21 information that is relevant and not repetitious or

22 privileged will be admitted into the record. Echoing

23 Member Moore's sentiments, I just remind everyone that

24 the questions posed today by the Board are intended

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1 solely to develop a clear and complete record for when we

2 have to write up our decision.

The Board received prefiled testimony from IAWA,

4 Professor Thomas Murphy and the Metropolitan Water

5 Reclamation District. You heard yesterday from Professor

6 Murphy, from the IAWA, and today's proceeding is

7 continuing where we left off yesterday; that is, with

8 cross examination of IAWA. After that we will proceed

9 with the prefiled testimony of the Metropolitan Water

10 Reclamation District of Greater Chicago. After we finish

11 with questions for all of those who prefiled, anyone else

12 may testify. There is a sign-up sheet for those persons

13 at the back of the room. Like all witnesses, those who

14 testify will be sworn in and may be asked questions about

15 their testimony.

For the court reporter, I'd like to remind

17 everyone to please speak up and don't talk too quickly.

18 Try not to talk over one another, and please, if this is

19 your first time speaking today, identify yourself by

20 name, title and organization. Any questions about our

21 procedures today? Seeing none, I'll just remind everyone

22 that at the end of today's hearing we will take up the

23 issue of establishing a prefirst notice public comment

24 filing deadline.

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Right now I'd like to continue with questions for

2 the IAWA's witnesses. The Board has a few questions.

3 I'll just open it up to the floor, see if anyone present

4 has any questions for IAWA at this point.

MR. ETTINGER: I have one.

HEARING OFFICER MCGILL: Mr. Ettinger, if

7 you could just identify yourself for the record.

MR. ETTINGER: Yes. I'm Albert Ettinger.

9 I'm counsel for Sierra Club, Prairie Rivers Network and

10 the Environmental Law & Policy Center. On page 8 of your

11 prefiled testimony, Mr. Streicher, you discuss IAWA

12 efforts to establish a tiered use committee, and then

13 I'll quote, "This committee has already started to

14 identify what the appropriate category should be in

15 Illinois based on existing and attainable uses. After

16 this first step, we will determine what the various water

17 quality standards, including dissolved oxygen

18 concentrations, should be for each category." I take it

19 by that, then, that it's anticipated that eventually

20 there will be a number of different dissolved oxygen

21 standards applicable to different waters across the

22 state, or how do you anticipate that will work?

MR. STREICHER: Okay. My name is Dennis

24 Streicher. I'm representing IAWA. The tiered use

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1 committee that the Association has formed was intended to

2 review what is existing in other states and what might be

3 appropriate and useful in Illinois. We don't want to

4 reinvent the wheel on this. We just want to try and look

5 at what would be the best approach. That task or that

6 effort is now finished with the first stage. We've hired

7 a consultant. We have six tasks that we have shared

8 results with the agencies, both EPA and IDNR.

Our next effort now will be to try and identify

10 what of all those categories would be useful in Illinois

11 and then again, as I say in the testimony, what water

12 quality standards may be applicable in each of those

13 categories. I can't answer that there will be a

14 numerous -- or a number of different DO standards

15 throughout the state. I don't -- We haven't gotten that

16 far yet, but I anticipate if it's like other states,

17 there will be. Ohio is a state in question here that we

18 look at fairly closely, and they do have a number of

19 different categories, and each of the categories has

20 different DO standards in it, attainable DO

21 concentrations.

MR. HARSCH: Roy Harsch. I'm also on that

23 committee for IAWA. We also are looking at the white

24 paper that IEPA has provided us with and the guidance

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1 that we've obtained from USEPA that they've put out for

2 doing this work as well, so we're essentially taking the

3 white paper and the USEPA guidance and melding that into

4 the first work that has been done by the consultants for

5 IAWA.

HEARING OFFICER MCGILL: If I could just

7 interject a question here, we were going to ask for a

8 copy of the white paper, if that's okay with the Agency.

MS. WILLIAMS: Oh, yeah.

HEARING OFFICER MCGILL: And, Mr. Harsch,

11 you mentioned USEPA guidance. Is that particularly

12 voluminous?

MR. HARSCH: Yes.

HEARING OFFICER MCGILL: Okay. Well, if you

15 could just cite to it in public comment or -- it's just

16 something that the Board would be interested in for

17 background.

MR. HARSCH: It would be -- If you want it

19 for background purposes, I would be more than happy to

20 forward it or Ed could forward it in electronic format,

21 but it is very voluminous.

HEARING OFFICER MCGILL: That's fine. What

23 I would contemplate doing, if you don't have -- I know

24 you don't have the USEPA guidance here. If the white

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1 paper's not here, I'll just reserve a hearing exhibit.

2 If you'd simply submit one copy to the Board, it wouldn't

3 have to be something that is served on the entire service

4 list.

MR. HARSCH: Would you like it hard copy or

6 would you actually like it electronically? It's almost

7 easier to do it electronically.

MR. RAO: Mr. Harsch, would the USEPA

9 guidance -- if it's available on their Web site, you

10 know, a citation would be good enough.

HEARING OFFICER MCGILL: You could just cite

12 to it in the public comment.

MR. HARSCH: Sure, I'd be happy to.

HEARING OFFICER MCGILL: In terms of the

15 white paper --

MR. FREVERT: Yeah, I want to comment on

17 this, that we developed the white paper to help focus our

18 perspective on how to look at revisiting aquatic life

19 uses in the state of Illinois. That paper has been

20 distributed only in a limited fashion, yet we're

21 assembling a large distribution list, and hopefully this

22 week we'll have that out to broader member stakeholders,

23 and we can certainly get it to you as well.

HEARING OFFICER MCGILL: Okay. If there's

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1 no objection, I'll just reserve Hearing Exhibit 39 for

2 the white -- Agency white paper.

MS. WILLIAMS: I don't have an objection. I

4 just -- I was going to wait until MWRD's testimony to

5 bring up a concern that I have related to the clarity of

6 the record, which is we have a voluminous amount of

7 information already in the record, and issues regarding

8 designated use rulemakings and use attainability

9 rulemakings in Chicago waterways serve to mess up the

10 record in this proceeding by getting too much information

11 in the record that's not related. Obviously, if the

12 Board thinks they need this information, we'll provide

13 it. I have no objection to reserving Exhibit 39, but I

14 do have some concerns about going off into areas that are

15 a distraction from the simple water quality standard

16 update that we're working on -- simple as it is -- today.

17 So I wanted to make sure I made that point.

HEARING OFFICER MCGILL: Well, since it was

19 specifically raised and discussed in prefiled testimony

20 for this hearing, we'll try not to let it distract us too

21 much, but I think it would be helpful background. So

22 we'll reserve Exhibit 39 for the Agency white paper, and

23 again, we'll just -- a single hard copy of that filed

24 with the clerk would be sufficient, or you can even just

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1 attach it to public comment. Thank you.

Mr. Ettinger, did you have further questions?

MR. ETTINGER: No.

HEARING OFFICER MCGILL: Are there --

5 Mr. Streicher or Mr. Harsch, could you tell us who was on

6 the tiered use committee you referred to in

7 Mr. Streicher's prefiled testimony?

MR. STREICHER: I can't tell you everybody

9 because it's a very large group now, and we just had a

10 kind of another round of sign-ups for our association,

11 and I was happy to see a number of folks signed up for

12 that. It's chaired right now by Nick Menninga, who is

13 the assistant manager of Downers Grove Sanitary District.

14 Lou Kollias with the Water Reclamation District is on

15 that committee; myself and Roy. There are a number of

16 consultants who have gotten onto the committee as well,

17 understanding that this is a kind of a leading edge, I

18 think, educational opportunity for them. Who else?

MR. HARSCH: From IAWA -- we could provide

20 you with -- the IAWA has a committee sign-up procedure

21 that we do annually, and we can provide you with a list

22 of agencies and municipalities that are members. At the

23 stakeholder meetings there have been a number of the

24 folks from the various environmental groups in the state,

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1 a number of representatives of IDNR from fisheries and

2 the surveys. USEPA was -- has been in attendance and --

HEARING OFFICER MCGILL: That's the main

4 thing we were interested in, is if there's -- the

5 testimony indicated that there's interaction with DNR,

6 the Agency and USEPA.

MR. STREICHER: Yes.

HEARING OFFICER MCGILL: They're not

9 actually on the committee, I take it, but --

MR. STREICHER: They're not actually on the

11 committee per se, but they have attended many committee

12 meetings to date. We've invited them, and our goal was

13 to include them as much as possible from the very start,

14 understanding that this is a very complex and long

15 process and we needed to have everybody on it.

HEARING OFFICER MCGILL: Thank you. I just

17 have one more question. In the IEPA/DNR proposal there's

18 a definition of "thermocline." Does IAWA agree with that

19 definition?

MR. STREICHER: Yes.

HEARING OFFICER MCGILL: Thank you. Are

22 there any other questions for IAWA at this point?

MS. WILLIAMS: I still have a few questions,

24 if that's okay.

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HEARING OFFICER MCGILL: Go ahead.

MS. WILLIAMS: I'd just like to clarify a

3 few points from your prefiled testimony. Dennis, on page

4 5 you say, "The DO standard which is finally adopted in

5 this proceeding should be a sound dissolved oxygen

6 regulation that will be used in the development of stream

7 use classifications." To me that seems backwards.

8 Aren't -- Wouldn't you agree that standards are adopted

9 to protect a designated use; that the use comes first?

MR. STREICHER: I would agree, and it

11 probably does seem a little backwards. In fact, after we

12 got ourselves into this long two-and-a-half-year effort,

13 there's been more than one time we stood back and said,

14 we should have started with stream use to begin with

15 anyway, and as I mentioned earlier, five years ago we

16 began the effort because I don't think we really thought

17 stream use or use attainability analyses were really on

18 the horizon for us in Illinois. I'm happy to say in the

19 last five years I think that whole thing has changed, but

20 unfortunately we got this ball rolling first, you know,

21 so we need to finish this, I think.

MS. WILLIAMS: So when you say on page 11

23 that the Board should wait for your proposal on tiered

24 uses, you're not asking that your proposal in this case

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1 be withdrawn or delayed or --

MR. STREICHER: No.

MS. WILLIAMS: At the bottom of that page --

4 paragraph on page 5 that we were reading from, you stated

5 that the DO standard will be used in other decisions by

6 other agencies. Can you just explain what you meant by

7 that?

MR. STREICHER: By other agencies. I think

9 I was referring to both agencies here, DNR and EPA.

MS. WILLIAMS: So not other agencies beyond

11 the two here today?

MR. STREICHER: I don't think so.

MS. WILLIAMS: Thanks. You have some

14 testimony, I believe, that your organization had

15 recommended at one point the possibility of retaining the

16 existing standard for a list of waters. Would you want

17 to see the Board retain the existing standard for the

18 list that's been provided in Appendix D?

MR. STREICHER: No. I -- When I said that,

20 it was really referring to the stakeholder discussions as

21 part of that process of trying to get us past the point

22 that maybe was, you know, causing some impasse in that

23 discussion, and it was thought of at the time that indeed

24 we do have waters in Illinois that are prime

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1 less-impacted waters. I'm confident that the IAWA

2 proposal as written can protect those waters as well,

3 but, you know, as part of that discussion we looked at

4 there being a retaining of the old standard.

MS. WILLIAMS: And you're not planning to

6 propose a list --

MR. STREICHER: No.

MS. WILLIAMS: -- of these waters. I just

9 want to clarify another point. When you talk about

10 least-impacted waters, could you at least say that you're

11 not talking about the waters that were -- where the data

12 was obtained by your members that was submitted with

13 Mr. Garvey's work? Do you consider any of those to be

14 least-impacted waters?

MR. STREICHER: The recent IAWA? You know,

16 I would think that there may be one or two. Kickapoo, I

17 think, was some place -- one place where we had some DO

18 measurements. I think it was my understanding that

19 Kickapoo is one of those least-impacted --

MS. WILLIAMS: But you wouldn't consider the

21 others to be in that group.

MR. STREICHER: No.

MS. WILLIAMS: In particular, I guess my

24 interest is in Salt Creek, DuPage River.

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MR. STREICHER: Those are not

2 least-impacted.

MS. WILLIAMS: Fox River. Those are all

4 heavily impacted, correct?

MR. STREICHER: We included those as kind of

6 a comparison between more urbanized and probably heavily

7 impacted river, comparing those to the enhanced segments

8 that were proposed.

MS. WILLIAMS: Thank you. On page 11, I

10 think it is --

MR. STREICHER: Yeah. Plus data was

12 available on those rivers, so --

MS. WILLIAMS: You say -- Near the top it

14 says, "These designations should be by basin or at least

15 by sub-basin," when you're referring to separating out

16 least-impacted streams. Did you mean this as an

17 alternative to selecting individual water bodies or

18 segments?

MR. STREICHER: I meant that as an

20 alternative to the -- what appears to me to be pretty

21 arbitrary segments that are widely dispersed over the

22 state.

MS. WILLIAMS: So, Dennis, is it your

24 testimony the State should have selected all the streams

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1 in a sub-basin where a site was identified having a

2 meaningful amount of DO sensitive species?

MR. STREICHER: I think when the data is

4 reviewed and when we can do this use designation, when we

5 can do the analysis and collect the data that we need,

6 I'm hoping that we'll be able to identify entire

7 sub-basins at least that size for protection, not just

8 pieces.

MS. WILLIAMS: But had we done that in this

10 case, that would have led to a lot more water bodies,

11 correct?

MR. STREICHER: It could have. I don't

13 know.

MS. WILLIAMS: Wasn't the possibility of

15 using a basin-wide approach discussed in the stakeholder

16 groups? Did you advocate for that approach then?

MR. STREICHER: When we talked about there

18 being the old standard retained, I think we were looking

19 at individual river basins.

MS. WILLIAMS: You spent a significant -- I

21 thought significant amount of time talking about the 6.25

22 milligram per liter seven-day mean from March through

23 July, and I guess I'll -- I try not to take personal

24 offense at your reference to the Agency attorney saying

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1 it was not arbitrary. Wasn't it explained to you at the

2 time that that was a mathematical midpoint between the

3 cold water and the warm water numbers?

MR. STREICHER: Yeah, and that it was just

5 an average.

MS. WILLIAMS: You also raised some

7 questions about that number not being attainable, and

8 without getting into too much detail about the data, I

9 just -- I guess I'd just like for you to clarify for all

10 of us where you feel attainability fits into the Board's

11 decision in this matter in what we're considering. I

12 think it would help everybody.

MR. STREICHER: Well, I think it's not

14 attainable. I think the data that we've developed to

15 date is -- again, as I said in the testimony, a great

16 bulk of the data supports the Whiles-Garvey numbers and

17 that the 6.25 is not attainable more often than the

18 Whiles-Garvey is, the 6.0, and that just putting a number

19 out there that may be a DO goal would be nice if we got

20 there, but it just isn't going to happen in a -- in our

21 Illinois rivers. I think that's what the Whiles-Garvey

22 report shows. This is -- It's just -- We're setting

23 ourselves -- We're setting the bar too high. We're

24 setting the bar at a point that is just merely going to

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1 make more violations.

MS. WILLIAMS: Would you disagree that if

3 that's what's necessary to protect aquatic life, that's

4 what the Board's obligated to do?

MR. STREICHER: Well, we disagree that

6 that's what's necessary to protect aquatic life.

MS. WILLIAMS: I think that helps explain it

8 a little better. On page 14 you called a decision of EPA

9 and DNR to include July in the sensitive stage period to

10 be arbitrary, and I think actually you used the word

11 "arbitrary," like, four times in the testimony, and most

12 people might not take the word the same way that an

13 administrative law attorney does, but -- so I just wanted

14 to ask you a little bit about that. You don't mean to

15 suggest that there's no data to suggest that there are

16 fish that spawn in July, do you?

MR. STREICHER: Well, we've been trying to

18 get some data from the Agency on that and we haven't, so,

19 I mean --

MS. WILLIAMS: What type of data are you

21 saying?

MR. STREICHER: Well, the spawning data I

23 think that Dr. Garvey had referred to in his own studies

24 I think were the ones that we were referring to, but that

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1 there isn't as much data as we'd like to see.

MS. WILLIAMS: From who?

MR. STREICHER: From the agencies.

MS. WILLIAMS: The EPA or from either one?

MR. STREICHER: DNR.

MS. WILLIAMS: DNR? Isn't it true that our

7 TSD shows that there's spawning that occurs even well

8 past July 31?

MR. STREICHER: I think Dr. Garvey would

10 probably be the better person to ask on this, but I think

11 he testified to that.

MS. WILLIAMS: Also in that discussion you

13 call the inclusion of July in the cool weather months a

14 problem, and I was just a little confused by this term,

15 "cool weather," for describing the period of March

16 through July, so for the period -- or from March through

17 June, anyway, June, July. So for August through February

18 it's not cooler. Is it hot or cold?

MR. STREICHER: Perhaps my testimony was a

20 little confusing there. We're looking at July as a warm

21 water -- as a warm month and one in which the spawning

22 has largely ended or that production phase has ended.

MS. WILLIAMS: But it's really about

24 spawning and early life stages, right, not about the

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1 temperature at this point?

MR. STREICHER: Right.

MS. WILLIAMS: Okay. Thank you. I think

4 that's all I have. Can I maybe talk for a minute to my

5 client to make sure that --

HEARING OFFICER MCGILL: Sure. Why don't we

7 go off the record.

MR. RAO: I have a follow-up.

HEARING OFFICER MCGILL: Let's stay on the

10 record.

MR. ETTINGER: I have one follow-up too,

12 but --

MR. RAO: Mr. Streicher, this goes back to

14 your testimony on page 8 regarding the tiered use

15 committee. Your testimony seems to indicate that you are

16 just in the beginning phases of this project to come up

17 with use designations, and are you following the USEPA's

18 guidelines for use attainability analysis in coming up

19 with these designations? Is that one of the objectives?

MR. STREICHER: Yes. The committee's been

21 in place for over a year. Mr. Dick Lanyon was our

22 chairman initially, and he's had a change in his job

23 category, so we kind of stalled there for a short time

24 until we got a new chairman on board, but, you know, we

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1 are following USEPA criteria, and that was the direction

2 given to the consultant.

MR. RAO: And is this, you know, procedure a

4 fairly involved process?

MR. STREICHER: I believe it is a very

6 involved process.

MR. RAO: So can we assume that any results

8 from this study will take a few years at a minimum or

9 maybe --

MR. STREICHER: I think it's very likely to

11 take a few years. There's going to be a long stakeholder

12 process involved as well.

MR. RAO: So before the Board sees any

14 changes, it may be, like, five to ten years from now

15 or --

MR. STREICHER: I wouldn't say ten years,

17 but approaching five might be -- Roy's reminding me the

18 committee has a goal of two years to be able to come to

19 some final design for this, but again, I believe the

20 stakeholder process is going to be very involved.

MR. RAO: Thank you.

HEARING OFFICER MCGILL: Two years from

23 when?

MR. HARSCH: 2008.

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MR. STREICHER: Yeah.

HEARING OFFICER MCGILL: Thank you.

3 Mr. Ettinger?

MR. ETTINGER: I just had one question. You

5 said the Agency had not supplied any information on

6 spawning times. I was just wondering, have you seen the

7 agency technical report?

MR. STREICHER: I have seen that, and --

MR. ETTINGER: And you don't consider that

10 information on spawning times?

MR. STREICHER: Well, it is information.

12 We're looking for more. I think, like any time, we're

13 looking for more data, and again, Dr. Garvey would be a

14 better person to --

MR. HARSCH: If you have a specific

16 question, we'd be more than happy to have Dr. Garvey

17 address it in writing.

MR. ETTINGER: Well, Dr. Garvey did address

19 it through his study of the lake in Grafton.

HEARING OFFICER MCGILL: Any further

21 questions for this witness? I just wanted to ask, is

22 there any aspect of the IAWA proposal that IAWA considers

23 more stringent or less stringent than the current

24 standard?

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MR. STREICHER: Well, if I understand your

2 question --

HEARING OFFICER MCGILL: It wasn't very well

4 worded.

MR. STREICHER: Is there a concern on any of

6 the members that this may be a more difficult standard to

7 meet or is that a -- or is it a loosening of the

8 standard? Is that what you're saying?

HEARING OFFICER MCGILL: I guess I'm just

10 trying to get a sense that there was discussion late

11 yesterday -- there was testimony that the proposals that

12 are before the Board now, that they are not -- I'm

13 paraphrasing -- not as stringent as the current board

14 standard, the existing standard, and I just wondered what

15 IAWA's take was on its own proposal and also your opinion

16 on the Agency/DNR proposal.

MR. STREICHER: Well, I can only speak to

18 what I've -- in my own discussions with some of the --

19 with our members and, you know, what they've said to me

20 about this, and they are very much, of course, on board

21 with our approach. I mean, everybody -- we have this

22 very unified position on it, but also unified

23 understanding that if a river is impaired for dissolved

24 oxygen, something needs to be done about it. I'm trying

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1 to avoid that responsibility in any way. What we want to

2 see is the, however, regulation that is sound and based

3 in science and something that -- you know, that is

4 defendable. Having said that, if we just made a DO

5 standard of 7 everywhere, you know, that would be tough

6 to meet for anybody. I don't know if that answers your

7 question, but it's -- we understood that when the

8 Whiles-Garvey report came out, we didn't know what it was

9 going to be before it came out, and we understood that

10 when it came out that this is what we're going to have to

11 go with regardless of what it was, because that was the

12 science.

HEARING OFFICER MCGILL: I guess part of the

14 concern was perhaps what IAWA would characterize as undue

15 violations under the current standard. Is it your sense,

16 then, that the IAWA proposal would lead to less

17 violations than the current DO standard?

MR. STREICHER: If it led to less, I think

19 the violations that existed would be real violations, a

20 real violation of a water quality need, so I guess if it

21 did lead to less, it may -- I don't know, but those that

22 remained would be I think truly a violation of what is

23 the river -- what the river needed.

HEARING OFFICER MCGILL: Thank you.

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MR. HARSCH: Can I -- since I'm sworn in --

HEARING OFFICER MCGILL: Yes.

MR. HARSCH: There appears to be -- I think

4 Dr. Garvey hit on this. There appears to be some

5 mathematical evidence that some of these mean-minima

6 averages may in fact become more problems than just the

7 single minimum, so that approach -- and it's in both --

8 to some extent in both proposals, IEPA's, DNR's and

9 ours -- it may -- in some instances it may actually find

10 some problems where we haven't seen them before just

11 because it's another approach to analyze the data. I

12 think Dr. Garvey hit upon that briefly yesterday, and we

13 seem to be seeing some of that, so if it uncovers a

14 problem, it uncovers a -- if the Board enacts either

15 version, we will be looking at dissolved oxygen levels

16 differently in Illinois and determining where there are

17 or where there are not violations, and as Dennis points

18 out, it was IAWA's goal that we develop a dissolved

19 oxygen water quality standard, have it adopted by the

20 Board, that really reflects the necessary -- something

21 that's attainable in Illinois and something that's

22 necessary to protect aquatic life.

HEARING OFFICER MCGILL: So the -- it's the

24 IAWA's position that its proposal would be more

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1 representative -- would lead to more representative data

2 of actual conditions in the streams?

MR. STREICHER: Correct. That would be a

4 good way of putting it. It's much more representative.

5 As Dr. Garvey said yesterday, DO is not a toxin. It's

6 something that is dynamic in the environment. That is --

7 You know, we -- the averaging aspect of this is something

8 that's important, something that we -- are in both

9 regulations.

HEARING OFFICER MCGILL: Thank you.

MR. ETTINGER: I guess just clarifying, and

12 just looking at numbers -- I'm not talking about biology

13 now -- the IAWA proposal is less stringent in every

14 respect. There's no respect in which somebody could have

15 violated the IAWA proposal and not violate the existing

16 standard; is that correct?

MR. STREICHER: Well, I think the existing

18 standard being a one-time, one-measurement standard, if

19 you went out there and measured 4.9 at any time, that

20 could be considered a violation. If you go out and

21 measure a 4.9 at one time under the IAWA, it may not be a

22 violation because it is a continuous, you know, averaging

23 value, so --

MR. ETTINGER: I -- My question is really

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1 quite simple-minded. I'm just asking, is the IAWA less

2 stringent across the board than the current standard?

MR. HARSCH: No.

MR. STREICHER: I don't think so.

MR. ETTINGER: No? Okay. In what respect?

6 That's what I wanted to clear now. In what circumstance

7 could you have a violation of the proposed IAWA standard

8 and not have a violation of the current standard?

MR. HARSCH: It's -- Albert, I think the

10 issue really is when you are -- from a purely

11 mathematical sense that may be correct.

MR. ETTINGER: That's all I'm asking. I'm

13 not -- I'm just trying to see what we're proposing here.

14 Now, as I understand the Agency proposal, the only place

15 in which it is more stringent than the current standard

16 is as to the 6.25 as to these enhanced waters; is that

17 correct?

MR. STREICHER: And the months.

MR. ETTINGER: I'm sorry. No, I'm comparing

20 it to the current standard.

MR. STREICHER: Oh, I'm sorry. Yes.

MR. ETTINGER: The current standard doesn't

23 differentiate as to months, does it?

MR. STREICHER: I'm sorry. I misunderstood

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1 you.

MR. ETTINGER: So the only way in which the

3 Agency proposal is more stringent than the current

4 standard has to do with the 6.25 seven-day mean as to

5 certain months in enhanced waters.

MR. STREICHER: Correct.

MR. ETTINGER: Thank you.

HEARING OFFICER MCGILL: Could the Agency

9 answer that question as well? I -- Mr. Ettinger's

10 question?

MR. FREVERT: Yeah, I think there's

12 certainly -- we are proposing adding seven-day averages

13 and thirty-day averages that don't exist at the present

14 time, and I would think theoretically you might have a

15 real flat DO profile where you were 5.1 all the time, so

16 you didn't violate the absolute minimum of 5 but you

17 violated the seven-day or thirty-day value. Kind of

18 theoretical, but it's a possibility.

MR. ETTINGER: Can I just read the current

20 standard? I think it says that dissolved oxygen shall

21 not be less than 6.0 milligrams per liter during at least

22 16 hours of any 24-hour period, nor less than 5

23 milligrams per liter at any time. So doesn't that take

24 into account the averaging concept, or am I confused? I

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1 just -- I want to make clear too we're just talking math

2 now. We're not talking biology.

MR. FREVERT: When you look at that 16-hour

4 requirement every day, maybe I've misspoken, and

5 physically it may not be possible for the math to work

6 out so you met that 6.0 but you still stayed below 6.25

7 as the average.

MR. ETTINGER: Okay.

HEARING OFFICER MCGILL: So is that that the

10 6.25 could be more stringent than the current standard?

MR. FREVERT: Again, I don't know how

12 probable it is, but I think it's theoretically possible.

MR. ETTINGER: It's theoretically possible

14 that you would have a seven-day mean that was below 6.25

15 but was above 6.

MR. FREVERT: Right.

MR. ETTINGER: So --

HEARING OFFICER MCGILL: That was a

19 question, and Mr. Frevert affirmed that, agreed with

20 that.

MR. FREVERT: That's correct.

HEARING OFFICER MCGILL: I just wanted to

23 make sure the transcript's clear. Okay. Thank you.

MR. ETTINGER: Yes. I'm sorry.

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MR. HARSCH: If I could respond briefly, it

2 isn't just a mathematical number, though. What we are

3 looking at, and I think it's -- has been recognized

4 throughout the hearings, is that we do need to look at

5 continuous data. We need to look at something other than

6 grab samples taken when the IEPA and DNR investigators

7 are out in a stream and they happen to be there at ten

8 o'clock in the morning or two o'clock in the afternoon,

9 so we are looking at a different approach to monitoring

10 for DO and determining whether there are exceedances in

11 the stream, and that's why the use of continuous data

12 recorders are -- so many continuous data recorders have

13 been pushed and talked about at some length in this

14 proceeding. So it really is a different approach. It

15 isn't simply just math.

MR. ETTINGER: Well, I don't want to get in

17 a debate, except to ask you, we've talked about these

18 various implementation methods over the thing, but that's

19 not part of your proposal, is it? If the Board adopts

20 your proposal, they're just adopting these numbers,

21 aren't they?

MR. HARSCH: The Agency has testified at

23 length that it will be developing -- in response to your

24 questions at earlier hearings, it will be developing

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1 implementation procedures.

MR. ETTINGER: Okay. I'm just --

MS. WILLIAMS: I object. I don't think

4 that's an accurate characterization of our testimony at

5 all, Roy.

MR. HARSCH: That was covered in the second

7 hearing. Toby went on for a long time about that.

HEARING OFFICER MCGILL: Go ahead,

9 Mr. Frevert.

MR. FREVERT: Perhaps I can clarify this.

11 Irrespective of what happens in this proposal, the

12 science and the abilities to do field monitoring for

13 dissolved oxygen are improved and given us abilities that

14 we didn't have in the past, and we indeed are moving that

15 way toward more automated and more continuous data

16 collection irrelevant or irrespective of what this

17 proceeding produces as a standard.

HEARING OFFICER MCGILL: Let me just --

19 actually, it's an opportune moment there to ask this

20 question, and the District's going to be testifying about

21 it later, but in the prefiled testimony of Louis Kollias

22 with the Water Reclamation District, he pointedly asks

23 that the final rule address a number of sampling and

24 methodology questions that he has. Has the Agency had --

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1 Agency and DNR had a chance to review that and do you

2 have any response to his request that those concerns --

MS. WILLIAMS: Can we try and do it a

4 different -- I'm sorry to interrupt. Go ahead. I just

5 want to ask if maybe we could try and do it a little

6 differently. Maybe our discussion of MWRD's testimony

7 might elicit some of that. We'd be happy then afterwards

8 to continue the panel concept rather than just blindly

9 trying to -- is that a reasonable request?

HEARING OFFICER MCGILL: Yeah. The subject

11 was just raised, so it didn't seem too blind, so if

12 that's your preference, I think we can do that. Just a

13 reminder, then, that the Agency and IAWA witnesses stick

14 around, please.

Any other questions for the IAWA's witness?

16 Okay. Why don't we go off the record for a moment.

(Brief recess taken.)

HEARING OFFICER MCGILL: Why don't we go

19 back on the record. Before we begin the District's

20 testimony, we have one last question. Ms. Williams, one

21 of the questions you posed earlier, you refer to a

22 meaningful amount of DO sensitive species, and in

23 designating the enhanced stream segments, that

24 actually -- we were wondering, is there information in

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1 the record as to how those enhanced stream segments were

2 selected other than the reference to the presence of DO

3 sensitive species? This is a question --

MS. WILLIAMS: Would DNR like to respond to

5 this?

MR. YONKAUSKI: Sure.

HEARING OFFICER MCGILL: Presence in what

8 sense? What criteria?

MR. CROSS: Yeah, we make reference to how

10 those thresholds do establish a meaningful number of DO

11 sensitive species at any given site in our TSD, and that

12 discussion in the TSD is specifically beginning I believe

13 on page 34 and 35 and 36, and on page 36 of that TSD,

14 which I believe is Exhibit 23, there's a Table 5 that

15 identifies specifically those threshold values for each

16 biological measure used to determine a meaningful amount

17 of sensitive organisms. So it's Table 5 on page 36 of

18 Exhibit 23.

HEARING OFFICER MCGILL: Thank you very

20 much. Okay. We're ready to address now the testimony of

21 the Metropolitan Water Reclamation District of Greater

22 Chicago. I'd ask the court reporter to swear in the

23 District's witnesses collectively.

(Witnesses sworn.)

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HEARING OFFICER MCGILL: First item, on

2 October 5, 2006, the District filed a motion for leave to

3 file prefiled testimony of Richard Lanyon along with his

4 prefiled testimony. Is there any objection to that

5 motion for leave?

MS. WILLIAMS: No.

HEARING OFFICER MCGILL: Seeing none, I

8 grant that motion. Ms. Conway, for the District, if

9 you'd like to take over at this point.

MS. CONWAY: Yeah. I'm Margaret Conway for

11 the Metropolitan Water Reclamation District. I'm a

12 senior assistant attorney, and we are here today to

13 present the prefiled testimony of our general

14 superintendent, Richard Lanyon, as well as our director

15 of research and development, Louis Kollias. We would ask

16 that the prefiled testimony be marked as exhibits to this

17 proceeding.

HEARING OFFICER MCGILL: The prefiled

19 testimony of Richard Lanyon, that would become Exhibit

20 40. Is there any objection to that motion? Seeing none,

21 the motion's granted. As to the prefiled testimony of

22 Louis Kollias, is there any objection to entering that as

23 Hearing Exhibit 41? Seeing none, that motion's granted

24 as well.

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MS. CONWAY: And I will then turn the

2 microphone over to Richard Lanyon.

MR. LANYON: Thank you. My voice is a

4 little weak, so I'll -- bear with me. I appreciate the

5 opportunity to present this testimony for the Illinois

6 Pollution Control Board. My name is Richard Lanyon. In

7 June of 2006 I was appointed general superintendent of

8 the Metropolitan Water Reclamation District of Greater

9 Chicago. I am submitting the following testimony on

10 behalf of the District in support of the subject proposed

11 amendments to the dissolved oxygen standards for general

12 use waters in Illinois. Prior to June 2006 I was the

13 director of research and development for the District for

14 seven years and previously testified in this proceeding

15 in that capacity. I have been employed by the District

16 since 1963.

As general superintendent, I am responsible for

18 the day-to-day operations of the District, a special

19 purpose unit of local government with 2100 employees and

20 an annual budget of one billion dollars. The District is

21 responsible for wastewater treatment for an

22 860-square-mile area in Cook County serving a population

23 of five million and a commercial and industrial

24 wastewater load of an equivalent population of five

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1 million. The District also operates the 78-mile-long

2 Chicago waterway system to provide an outlet for treated

3 effluent and to properly drain the metropolitan area of

4 excess stormwater. We are also responsible for

5 stormwater management planning, regulation and

6 maintenance for all of Cook County.

I received both bachelor's and master's of civil

8 engineering degrees from the University of Illinois at

9 Urbana-Champaign. I have received the American Society

10 of Civil Engineers National Government Civil Engineer of

11 the Year Award in 1999 and Distinguished Alumnus of the

12 Department of Civil and Environmental Engineering at UIUC

13 in 2003. I'm also a past president of the Illinois

14 section of the American Society of Civil Engineers and

15 have been involved in a variety of technical activities

16 for ASCE, for the Water Environment Federation, the

17 Illinois Association of Wastewater Agencies, the U.S.

18 Geological Survey and the National Association of Clean

19 Water Agencies.

Mr. Louis Kollias, the District's director of

21 research and development, will also provide testimony in

22 this proceeding focusing on the water quality impact of

23 the proposed rule. My testimony will focus on the impact

24 in the context of the District's budget and capital

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1 improvement program and involvement in the use

2 attainability analysis studies of the Chicago area

3 waterways and the lower Des Plaines River.

The District previously submitted comments in

5 support of the proposed amendments to Illinois -- 35

6 Illinois Administrative Code 302.206. This testimony is

7 being submitted to address certain other comments and

8 testimony that has been filed and in support of the

9 District's prior comments.

As mentioned in my earlier testimony, the

11 District is a principal participant in the UAA studies

12 being conducted by the Illinois Environmental Protection

13 Agency for the Chicago area waterways and the lower Des

14 Plaines River. These studies include approximately 90

15 miles of waterways designated as secondary contact and

16 general use. Those designated as general use include 4

17 miles of the North Shore Channel and 1.6 miles of the

18 Chicago River. The remainder of the Chicago area

19 waterways and lower Des Plaines River is designated as

20 secondary contact. The UAA studies have demonstrated

21 that based on water quality monitoring data from many

22 sources, the Chicago area waterways and the lower Des

23 Plaines River are meeting most general use water quality

24 standards at most locations for most of the time except

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1 for bacteria and dissolved oxygen. There is no bacterial

2 standard for the secondary contact use designation, and

3 effluents discharge into these waters are not required to

4 be disinfected. In addition, all segments of the Chicago

5 area waterways and the lower Des Plaines River, including

6 the general use reaches, are impacted by occasional

7 combined sewer and stormwater overflows containing

8 bacterial contamination and oxygen-demanding substances.

Certain reaches of the Chicago area waterways

10 have deficient dissolved oxygen concentrations during

11 periods of warm weather and low flows. As part of the

12 Chicago area waterways UAA study, the District and -- at

13 the request of the IEPA has performed technical

14 investigations of feasible technology to address the

15 dissolved oxygen deficiencies. Various feasible

16 technologies could cost from 200 to 360 million on a

17 present worth basis to correct the dissolved oxygen

18 deficiencies during warm weather. Completion of the

19 District's tunnel and reservoir plan, expected by the

20 year 2019, will address the temporary deficiencies in

21 dissolved oxygen concentrations caused by wet weather by

22 capturing, storing and treating most combined sewer

23 overflows. However, tunnel and reservoir plan completion

24 alone will not address dry weather, low flow conditions.

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More thorough study of the complicated waterways

2 system and the technologies and cost to achieve

3 compliance with DO standards is needed. The District has

4 recently begun further studies, employing the resources

5 of the Department of Civil and Environmental Engineering

6 at -- and the National Center for Supercomputer

7 Applications at the University of Illinois in

8 Urbana-Champaign and the U.S. Geological Survey's

9 Illinois Water Science Center, also in Urbana. This work

10 will involve a complete bathymetric survey, additional

11 flow measurement stations and development of a

12 three-dimension hydraulic model using the U.S.

13 Environmental Protection Agency's environmental fluid

14 dynamics code. This research effort will be funded by

15 the District at a cost of approximately $900,000.

Approximately 70 percent of the annual flow

17 leaving the Chicago area waterways at Lockport consists

18 of treated water reclamation plant effluent. Effluent

19 typically has high DO concentrations in the range of 5 to

20 7 milligrams during dry weather. I'm sorry. 5 to 7

21 milligrams per liter during dry weather. Effluent also

22 contains biological oxygen demand and suspended solids at

23 concentrations less than 5 milligrams per liter.

24 Therefore, the oxygen-demanding substances in the

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1 effluent easily consume the available oxygen in the

2 effluent, making it difficult for effluent alone to

3 provide sufficient oxygen to maintain compliance with the

4 dissolved oxygen water quality standard.

It is for this reason that the District finds it

6 necessary to provide supplemental aeration in waterways

7 downstream of effluent outfalls to meet the applicable

8 standard. Supplemental aeration is necessary because the

9 slow-moving water is incapable of sufficient natural

10 reaeration to maintain compliance with the standard.

11 However, supplemental aeration is not currently available

12 throughout the Chicago area waterways and the lower Des

13 Plaines River. It is probable that additional

14 supplemental aeration will have to be provided when a new

15 dissolved oxygen standard is adopted.

The UAA study for the lower Des Plaines River has

17 been completed and the current recommendation is for the

18 lower Des Plaines River in the Brandon Road Pool to meet

19 a minimum dissolved oxygen concentration of 4 milligrams

20 per liter and the general use standard for the Dresden

21 Island Pool. The UAA study for the Chicago area

22 waterways is not complete, but the draft report

23 recommends that certain aquatic life use designations be

24 adopted and that for these uses, the general use water

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1 quality standards be adopted with some minor

2 modifications. The two proposed aquatic life use

3 designations do not contemplate fish reproduction due to

4 the limited habitat in these waterways. Therefore, when

5 the proposed rulemaking for the Chicago area waterways

6 comes before the Illinois Pollution Control Board, it

7 will have to include some other water quality standard

8 than is being proposed by either the IAWA or the Illinois

9 EPA and Illinois Department of Natural Resources for

10 general use waters. I would like to emphasize that a

11 considerable amount of detailed data and study was

12 necessary to establish these two proposed aquatic life

13 use designations. This is not a simple task.

As will be shown in the testimony of Mr. Kollias,

15 most of the monitoring locations in the Chicago area

16 waterways will not be able to meet the general use

17 standard for dissolved oxygen as proposed by the IEPA and

18 IDNR. Only one location can meet the proposed IEPA/IDNR

19 standard, and this is in the Chicago River at Clark

20 Street. Ironically, this is one location in the most

21 limited aquatic use designation recommended in the draft

22 UAA study report. This segment of the Chicago River has

23 high water quality because it contains water brought in

24 from Lake Michigan. However, it is a straight channel,

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1 250 to 300 feet wide, 20 to 25 -- 20 to 26 feet deep with

2 vertical walls of concrete or steel, a sandy substrate

3 channel bottom, numerous thermal discharges from the

4 cooling systems of high-rise buildings and a high volume

5 of boat traffic during warm weather months. It is devoid

6 of any suitable habitat for the reproduction of fish.

With respect to the eventual need for additional

8 capacity for supplemental aeration to meet the DO

9 standards that result from the UAA studies, the District

10 will have to add these facilities to its capital

11 improvement program. Currently, our capital resources

12 are committed for infrastructure replacement and

13 rehabilitation through the year 2016 at the rate of

14 approximately 150 million dollars per year. Our ability

15 to raise funds for capital improvement through bonding

16 and to retire the debt through ad valorem taxes is

17 governed by state statute. The Pollution Control Board

18 will have to take this into consideration when adopting

19 standards requiring the District to expend capital funds

20 for infrastructure to comply with the standard.

In conclusion, I would just like to state that

22 the District supports the IAWA proposal for the change in

23 the dissolved oxygen standard, and we also caution the

24 Board that a separate approach to establishing tiered use

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1 designations be pursued and supported by good science.

2 Thank you very much.

HEARING OFFICER MCGILL: Mr. Kollias, you

4 may proceed.

MR. KOLLIAS: I appreciate this opportunity

6 to present this testimony before the Illinois Pollution

7 Control Board. My name is Louis Kollias. I am the

8 director of research and development, R&D, for the

9 Metropolitan Water Reclamation District of Greater

10 Chicago, "District." I am submitting the following

11 testimony on behalf of the District in support of the

12 subject proposed amendments to the dissolved oxygen

13 standards for general use waters in Illinois. I prefiled

14 the testimony on October 2, 2006.

I have been the director of R&D since June of

16 2006. Prior to that I had been assistant chief engineer

17 in the District's R&D Department since January of 2003.

18 As director of R&D, I supervise the District's R&D

19 Department, which has a staff of 317. I have been

20 employed by the District since 1977.

I hold a bachelor of science degree in civil

22 engineering from the Illinois Institute of Technology. I

23 am a licensed professional engineer in the state of

24 Illinois and a board certified environmental engineer in

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1 the American Academy of Environmental Engineers. I am

2 also currently the president of the Illinois Water

3 Environment Association.

My responsibilities as the District's director of

5 R&D include but are not limited to the following:

6 Control of commercial and industrial waste discharges to

7 the District's sewers and the waterways via the sewage

8 and waste control ordinance; recovery of certain district

9 operating, maintenance and replacement costs via

10 administration of the user charge ordinance; providing

11 analytical laboratory support for the control of

12 commercial and industrial waste and for control of

13 treatment and other operations; monitoring the water

14 quality of Lake Michigan, Chicago area waterways and the

15 Illinois Waterway; and conducting basic and applied

16 research on new wastewater and sludge treatment

17 processes.

The District previously submitted comments in

19 support of the proposed amendments to 35 Illinois

20 Administrative Code 302.206. This testimony is being

21 submitted to address certain other testimony that has

22 been filed and to provide information concerning

23 continuous dissolved oxygen -- DO -- monitoring and how

24 such monitoring results in Chicago area waterways would

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1 have complied with the proposed standards.

The District appreciates the opportunity to

3 express its views on the pending rulemaking for a DO

4 water quality standard. We will address three areas:

5 One, comment on the testimony of Thomas J. Murphy; two,

6 complexity and cost of conducting the District's

7 continuous DO monitoring program; three, compliance with

8 proposed DO standards in Chicago area waterways. I

9 request that my detailed comments on these three areas be

10 placed in the record of these proceedings and that I be

11 allowed to summarize these comments now at this hearing.

HEARING OFFICER MCGILL: That's fine. Go

13 ahead.

MR. KOLLIAS: My summary follows. "Comment

15 on the Testimony of Thomas J. Murphy." The testimony of

16 Dr. Thomas J. Murphy is very critical of the USEPA 1986

17 national criteria document, which is a foundation and

18 guideline from which data and research have been used to

19 substantiate the proposed amendment. A DO standard based

20 on DO concentration in milligrams per liter is practical,

21 easily understandable and scientifically defensible. The

22 vast majority of monitoring data and data in the

23 scientific literature relating to dissolved oxygen

24 effects on fish communities are based on DO concentration

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1 in milligrams per liter. DO concentration must be

2 utilized in the standard because it is possible to

3 control DO concentration through management practices by

4 supplemental aeration and other mechanical means. It is

5 much more difficult to control oxygen tension, and oxygen

6 saturation can be extremely variable. Dr. Murphy does

7 not make a convincing case for the use of dissolved

8 oxygen saturation rather than dissolved oxygen

9 concentration as the state standard.

"Comments on Dissolved Oxygen Monitoring

11 Technical and Cost Issues." In order to obtain quality

12 DO data, a DO monitoring station must be located at a

13 point that is representative of the waterway DO

14 throughout the station's cross-section. Many physical

15 features such as mixing zones for wastewater treatment

16 plant outfalls, tributary confluences, CSO outfalls,

17 in-stream structures that disrupt flow, oxygen-consuming

18 sediment deposits, variability of phytoplankton oxygen

19 production and thermal discharges can influence DO

20 uniformity at a waterway monitoring station.

The District currently maintains 32 monitoring

22 stations in Chicago area waterways in its continuous DO

23 monitoring program. A total of 78 monitors are available

24 for use at these 32 stations. This includes two monitors

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1 per station for weekly retrieval and deployment and the

2 remainder available to substitute for monitors being

3 serviced or repaired and for those that fail the QA/QC

4 procedures prior to deployment. Each monitor equipped

5 with a DO-specific conductivity and water temperature

6 probe costs approximately $4200. Total cost for the 78

7 monitors purchased for the monitoring program was

8 $327,600. Total cost to install DO monitoring equipment

9 at 32 DO monitoring stations which monitor approximately

10 225 river miles in District's waterways was $139,638.

11 Total annual program cost at these 32 stations during

12 2005 was $679,805.

"Comments on Compliance of Chicago Air Waterways

14 with Proposed DO Standards." Summaries of continuous

15 dissolved oxygen measurements at 12 shallow-draft reaches

16 of Chicago area general use waters are presented in

17 Exhibits 1A and 1B. During the period August 2005

18 through February 2006, eight of the twelve shallow-water

19 stations were in 100 percent compliance with the proposed

20 DO standards. During the period March 2006 through July

21 2006, two of the twelve shallow-water stations were in

22 100 percent compliance with the proposed DO standards.

23 Summaries of the dissolved oxygen measurements at 20

24 deep-draft reaches of Chicago area waterways are

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1 presented in Exhibits 2A and 2B. During the period

2 August 2005 through February 2006, five of the twenty

3 deep-water stations were in 100 percent compliance with

4 the proposed DO standards. During the period March 2006

5 through July 2006, one of the twenty deep-water stations

6 were in 100 percent compliance with the proposed DO

7 standards.

"Comments on Calculation of the Seven-day Average

9 Daily Minimum or Daily Mean." It was unclear as to what

10 method to use to calculate both the seven-day daily

11 minima during the August through February period and the

12 seven-day daily mean for the March through July period.

13 Results were calculated for one month during each period

14 using a running average method and a weekly calendar day

15 method. For purposes of comparison of the two methods,

16 these results are shown in Exhibits 3A and 3B for the

17 shallow-draft stations during September 2005 and in

18 Exhibits 4A and 4B for the deep-draft stations during

19 July 2006.

Both the running average method and the calendar

21 week method gave very similar results for calculating a

22 seven-day daily minimum or seven-day daily mean DO value.

23 However, for consistency, one or the other method should

24 be recommended if the standards are accepted by the

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1 Illinois Pollution Control Board. The same clarification

2 should be made to determine the 30-day average of daily

3 means for the August through February period.

The District supports the promulgation of a

5 scientifically sound standard with clearly outlined

6 requirements for compliance verification. However,

7 before adopting any proposal, there must be a reasonable

8 chance that compliance will occur. It is suggested that

9 the Board give consideration to the following for urban

10 streams: A waiver provision should be allowed for

11 urban-impacted and CSO-impacted streams for time for

12 further study of the affordability and feasibility of

13 technology that must be installed for these streams to

14 come into compliance. A separate wet weather standard

15 applicable to the time following stormwater runoff needs

16 to be investigated that would allow reduced DO levels for

17 a limited period.

In closing, several areas have been identified

19 where the IDNR/IEPA proposal requires clarification and

20 scientific justification. The District supports a

21 promulgation of a scientifically sound standard with

22 clearly outlined requirements for compliance

23 verification. The standard must acknowledge and address

24 the unique nature of urban waterways and provide

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1 flexibility to accommodate the anthropogenic factors that

2 impact DO and aquatic ecology in these systems. Thank

3 you for this opportunity.

HEARING OFFICER MCGILL: Thank you. We'll

5 open it up for questions for the District's witnesses.

6 Does anyone have any questions for these witnesses?

MR. ETTINGER: Oh, sure.

MS. WILLIAMS: You can go first.

HEARING OFFICER MCGILL: Mr. Ettinger. If

10 you would please use the microphone.

MR. ETTINGER: Oh, yeah, yeah, microphone.

12 The -- I have some questions first about Mr. Lanyon's

13 testimony. On the third page of your three -- third page

14 of your prefiled testimony, we have a paragraph here that

15 starts, "Approximately 70 percent," then the next

16 sentence says, "Effluent typically has high DO

17 concentrations in the range of 5 to 7 milligrams per

18 liter during dry weather." You don't mean to imply that

19 those are high DO concentrations, or is that the high for

20 the day, or what do you mean in that sentence?

MR. LANYON: Well, these are just the

22 typical ranges of dissolved oxygen concentrations in

23 effluent during dry weather periods.

MR. ETTINGER: Well, I'm confused by the use

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1 of the word "high." Does that mean that that's the

2 highest it gets, is 5 to 7, or is that -- what does the

3 high do there?

MR. LANYON: That -- Yes, that's the highest

5 it gets.

HEARING OFFICER MCGILL: Mr. Lanyon, if you

7 could get a little closer to the microphone.

MR. LANYON: Oh, I'm sorry. That's the

9 highest --

HEARING OFFICER MCGILL: We're having a hard

11 time hearing you. Thanks.

MR. ETTINGER: Okay. And that's just

13 because that's the nature of effluent?

MR. LANYON: Yes.

MR. ETTINGER: Okay. And then it says,

16 "Effluent also contains biological oxygen demand and

17 suspended solids at concentrations less than 5 milligrams

18 per liter." That is -- That's correct?

MR. LANYON: That's what it says, yes,

20 that's correct.

MR. ETTINGER: And is that what causes the

22 DO to get below 5 liter?

MR. LANYON: That plus the combination of

24 slow-moving water that cannot reaerate itself.

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MR. ETTINGER: So you're testifying, then,

2 that at least under some circumstances, discharges of BOD

3 at a level of 5 milligrams per liter can cause dissolved

4 oxygen concentration violations.

MR. LANYON: Well, I said -- I used the word

6 "deficiencies." I don't know that it's a violation or

7 not because I haven't presented any testimony as to the

8 actual numbers we find downstream.

MR. ETTINGER: Okay. I correct -- stand

10 corrected. But you are saying that discharges of BOD at

11 5 milligrams per liter or less can cause dissolved oxygen

12 concentrations to fall below 5.

MR. LANYON: That's the nature of the

14 science, yes.

MR. ETTINGER: Then the next sentences say,

16 "Therefore, the oxygen-demanding substances in the

17 effluent easily consume the available oxygen in the

18 effluent." What do you mean by easily? How far --

MR. LANYON: Well, there's a demand for the

20 oxygen, and the chemical reaction uses up the oxygen.

MR. ETTINGER: Much of it?

MR. LANYON: Well, if not all of it, a

23 portion of it.

MR. ETTINGER: Okay. You speak about

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1 dissolved oxygen levels at various places in this report.

2 Is the District aware of any continuous monitoring at the

3 I-55 bridge below Joliet?

MR. LANYON: Are we aware of it?

MR. ETTINGER: Yes.

MR. LANYON: I believe that somebody's

7 monitoring there, yes.

MR. ETTINGER: Are you aware of any effect

9 of -- on dissolved oxygen levels of the operation of the

10 Midwest Generation plants at Will County or Joliet?

MR. LANYON: I am not aware of -- I have not

12 made any studies of these operations.

MR. ETTINGER: Thank you. On the top of

14 page 4 there's a sentence here saying, "It is probable

15 that additional supplemental aeration will have to be

16 provided when a new DO standard is adopted."

MR. LANYON: Yes.

MR. ETTINGER: What are you referring to

19 there?

MR. LANYON: Well, as you're well aware,

21 part of the UAA study is to come up with new standards

22 for the Chicago area waterways, and we know those

23 standards will have to meet them, and if it's necessary

24 to build supplemental -- additional supplemental aeration

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1 stations to do so, we will.

MR. ETTINGER: Okay. Just to be clear,

3 though, for this purpose, or for purposes of this

4 proceeding, when you say new DO standard, you're not

5 talking about this DO standard proceeding. You're

6 talking about another DO proceeding that you're

7 anticipating as coming out of the UAA studies.

MR. LANYON: That is correct.

MR. ETTINGER: Now, you mention here a draft

10 of a proposed DO concentration of 4.0 milligrams per

11 liter and the general use standard in the Dresden Island

12 Pool. Where are those numbers coming from?

MR. LANYON: That comes from the report

14 prepared by the IEPA's consultant for the UAA study for

15 the lower Des Plaines River.

MR. ETTINGER: Again, we're talking about

17 proposed DO studies that are coming out of the use

18 attainability analysis.

MR. LANYON: That is correct.

MR. ETTINGER: Will the numbers coming out

21 of the use attainability analysis be driven by the number

22 that comes out of this proceeding?

MR. LANYON: Possibly. That remains to be

24 seen.

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MR. ETTINGER: But at least it's entirely

2 possible that the use attainability analysis numbers will

3 be different than the numbers coming out of this

4 proceeding.

MR. LANYON: That could be. That could

6 happen.

MR. ETTINGER: In fact, in the last sentence

8 of this, you say, "Therefore, when the proposed

9 rulemaking for the CAWs comes before the Illinois

10 Pollution Control Board, it will have to include some

11 other water quality standard than is being proposed by

12 either the IAWA or the IEPA/Illinois Department of

13 Natural Resources for general use waters."

MR. LANYON: Is that a question?

MR. ETTINGER: Yes, that is a question. So

16 in fact, you don't want the standard that comes out of

17 this proceeding to be applied to those waters.

MR. LANYON: It may be difficult to meet

19 that standard if that's applied. However, it's my

20 understanding as part of the UAA study that there will be

21 a different set of standards proposed.

MR. ETTINGER: So is this proceeding

23 relevant to the numbers that the Water Reclamation

24 District is going to have to meet as a result of the UAA

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1 study?

MR. LANYON: I'm sorry. Are you asking if

3 this proceeding is relevant to that?

MR. ETTINGER: This proceeding we're in here

5 today is not going to be setting your numbers, is it?

MR. LANYON: Well, I think it is, because it

7 is sort of an example of what we'll be going through for

8 these other -- in future proceedings to set standards for

9 the Chicago area waterways.

MR. ETTINGER: Okay. So it's relevant as

11 some sort of model, but you're not -- you do not believe

12 that these numbers should be applied to your system and

13 you don't expect them to be.

MR. LANYON: Well, at the present time, none

15 of the waterways in the Chicago area are on the enhanced

16 list, so the proposal by the IEPA and the DNR would not

17 be operative in our area.

MR. ETTINGER: I think it's safe to say that

19 the Chicago River is not going to go on the enhanced

20 list.

HEARING OFFICER MCGILL: If I could just

22 clarify that, there are some general use waterways within

23 the District's water system?

MR. LANYON: That is correct. Most of the

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1 waterways are general use, talking about all of the

2 tributary steams to the deep-draft waterways, Des Plaines

3 River, Salt Creek, etc. These are all general use

4 waters.

HEARING OFFICER MCGILL: And is it your

6 understanding, then, that they would become subject to

7 any new DO general use standard that were to come out of

8 this proceeding?

MR. LANYON: Those waterways would, yes.

MR. ETTINGER: The waterways that are being

11 affected by the UAA you believe will be subject to

12 dissolved oxygen standards that come out of the UAAs, not

13 out of this proceeding.

MR. LANYON: That's correct.

MR. RAO: I think Mr. McGill was referring

16 to the Chicago area waterways where in your testimony on

17 page 2 you noted that there's a stretch of 4 miles of the

18 North Shore Channel and 1.6 miles of the Chicago River

19 which are general use and not secondary contact. Am I

20 right on those --

MR. LANYON: That's correct.

MR. RAO: And will those be subject to the

23 proposed DO standards or will they be subject to the

24 standard that comes out of the UAA?

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MR. LANYON: Well, without some proceeding

2 with respect to the UAA, if nothing else changes, they

3 may be subject to the standard that comes out of this

4 proceeding.

MR. RAO: Thank you for the clarification.

MR. ETTINGER: A portion of the Dresden

7 Island Pool is now general use water; is that correct?

MR. LANYON: That's correct.

HEARING OFFICER MCGILL: Mr. Ettinger, did

10 you have any further questions?

MR. ETTINGER: Yes. Should we now -- Should

12 I now ask my questions of Mr. Kollias or --

HEARING OFFICER MCGILL: Yeah. They're

14 answering questions as a --

MR. ETTINGER: As a team? Okay.

16 Mr. Kollias, in a sentence in your prefiled testimony,

17 you state, "Using DO saturation by itself could result in

18 situations of 100 percent DO saturation at high

19 temperatures with concentrations that are still harmful

20 to fish and invertebrates." Under what circumstance

21 could you have a 100 percent DO saturation that was

22 harmful to fish?

MR. KOLLIAS: That was provided by our staff

24 biologist, and that is where I got that statement.

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MR. ETTINGER: Do you know how hot the water

2 has to be for a 100 percent DO saturation to be a low

3 dissolved oxygen concentration?

MR. KOLLIAS: What temperature, you said?

MR. ETTINGER: Yeah. What temperature would

6 the water have to be for 100 percent saturation level to

7 be below 5.0 milligrams per liter?

MR. KOLLIAS: I don't know that offhand.

MR. ETTINGER: In the next sentence you say,

10 "DO concentration must be utilized in the standard

11 because it is possible to control DO concentration

12 through management practices by supplemental aeration and

13 other mechanical means." If we wrote the future DO

14 standard taking into account saturation levels by simply

15 requiring a higher milligram per liter during certain

16 months, say, retaining the current standard for January

17 or other cold weather months, would that affect your

18 ability to utilize management practices to meet the

19 standard?

MR. KOLLIAS: As long as we have a milligram

21 per liter standard to go by.

MR. ETTINGER: You'd be okay.

MR. KOLLIAS: (Nods head up and down.)

MS. CONWAY: You have to say yes.

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MR. KOLLIAS: Yes. I'm sorry.

HEARING OFFICER MCGILL: You have to make

3 sure you answer orally.

MR. ETTINGER: On page 8 of the prefiled

5 testimony, there's, "The following comments should also

6 be considered by the Pollution Control Board prior to

7 promulgation of the final rule." Say, "The draft rule as

8 it is currently written does not specify a minimum

9 frequency of monitoring requirement for either the

10 sensitive period or the non-sensitive period. The final

11 rule should address this." What do you mean, first of

12 all, by the draft rule?

MR. KOLLIAS: The draft rule as it's

14 proposed.

MR. ETTINGER: By the IAWA or by the Agency?

MR. KOLLIAS: By the Agency.

MR. ETTINGER: Is it your understanding that

18 the IAWA rule has a provision for continuous monitoring

19 or specifying frequency of monitoring?

MR. KOLLIAS: No.

MR. ETTINGER: Is it your position that this

22 board -- well, I guess the language states for itself.

23 The final rule should contain provisions specifying

24 minimum frequency of monitoring?

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MR. KOLLIAS: Yes.

MR. ETTINGER: So you don't agree with

3 either of the proposals as they're currently written.

MR. KOLLIAS: We need monitoring to

5 determine compliance with the standard.

MR. ETTINGER: "The draft rule as currently

7 written does not specify or offer guidance as to how many

8 sample points must be maintained to ensure compliance;

9 the final rule should address that." It's your position,

10 then, that all of the current petitions in front of us

11 need work in order to specify things that they don't now

12 contain.

MR. KOLLIAS: Yes.

MR. ETTINGER: That's all my questions.

HEARING OFFICER MCGILL: Any further

16 questions for the District's witnesses?

MS. WILLIAMS: I have just a couple, and I

18 think Albert might have hit on this issue. At the end of

19 your testimony, Mr. Lanyon, you stated, you know, you are

20 here in support of IAWA's proposal, so if the word

21 "proposal" is used in the testimony, in the absence of a

22 modifier to whose proposal it should be, do we assume

23 that you're referring to IAWA's proposal or the Agency's

24 proposal?

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MR. LANYON: I'm referring to the IAWA

2 proposal.

MS. WILLIAMS: Okay. Thank you. On page 2

4 of your testimony, Mr. Lanyon, you make a statement that,

5 towards the bottom, "The CAWs and" -- "The Chicago

6 waterways and the lower Des Plaines River are meeting

7 most general use water quality standards at most

8 locations for most of the time except for bacteria and

9 dissolved oxygen." You're not trying to testify here

10 today that the lower Des Plaines River and the CAWs are

11 meeting all the temperature standards most of the time?

MR. LANYON: Could you repeat that one?

MS. WILLIAMS: With regard to the general

14 use standards that are being met in those waterways,

15 you're not trying to testify today that temperature is

16 part of the most standards that are met most of the time,

17 are you?

MR. LANYON: I don't believe we reviewed the

19 temperature data.

MS. WILLIAMS: That's fine. So you're not

21 trying to testify one way or another about that.

MR. LANYON: No.

MS. WILLIAMS: So there might be some other

24 parameters that -- besides bacteria and DO that might be

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1 an issue in that waterway?

MR. LANYON: Well, in the UAA studies we

3 were looking at metals and oxygen-demanding substances.

MS. WILLIAMS: And you understand -- I mean,

5 I'm not trying to get into too much detail because I

6 don't think it's relevant, but I'm concerned about

7 getting testimony on the record about things that I

8 believe were problems in part of that setting. For

9 example, metals, I think there was some issues with

10 copper, and you're not trying to thoroughly assess the

11 parameters that are in compliance in that waterway by

12 that statement, are you?

MR. LANYON: Well, no, but I think my

14 statement about most of the time in most locations for

15 most parameters was enough wiggle room.

MS. WILLIAMS: I will give you that.

17 Mr. Kollias, when you suggested that the proposals

18 should -- at least for the EPA/DNR proposal it should

19 specify whether the averaging is to be a running average,

20 I think, or a calendar average, would you have an

21 objection if the Agency was recommending a running

22 average?

MR. KOLLIAS: No.

MS. WILLIAMS: And when you calculated the

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1 running averages, did you wrap those averages around each

2 month or did you cut them off at the end of a month? Do

3 you understand the question? I'm not sure I'm saying it

4 clearly.

MR. KOLLIAS: Yes, I do, but I didn't have

6 the raw data before me, so I can't --

MS. WILLIAMS: Okay. So you're not sure.

MR. KOLLIAS: Right.

MS. WILLIAMS: I also think that,

10 Mr. Lanyon, when you were being questioned by

11 Mr. Ettinger you referred to the Des Plaines River as

12 being a general use waterway, and I just want to clarify

13 for the record, you're not talking about the portion of

14 the lower Des Plaines that is the subject of the UAA?

15 That's secondary contact, correct?

MR. LANYON: That's correct, secondary

17 contact.

MS. WILLIAMS: Thank you. That's all I

19 wanted to clear up. That's all I have at this time.

HEARING OFFICER MCGILL: Thank you. Any

21 further questions for the District's witnesses?

22 Mr. Harsch, any questions?

MR. HARSCH: No.

HEARING OFFICER MCGILL: I just wanted to

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1 clarify, the -- I believe it was Mr. Lanyon's testimony

2 earlier there are no district waterways that would be

3 subject to any of the enhanced tier standards proposed by

4 the Agency. Is that correct?

MR. LANYON: That's my understanding.

HEARING OFFICER MCGILL: Mr. Kollias, the

7 sample results that you present in your prefiled

8 testimony, did you compare those results with either the

9 IAWA proposal or the current board standard?

MR. KOLLIAS: No. Just what's stated in the

11 testimony.

HEARING OFFICER MCGILL: Okay. Thank you.

13 And, Mr. Lanyon, toward the end of your prefiled

14 testimony you talk about capital resource commitments of

15 the District and the ability to raise funds and state

16 that the Board will have to take this in consideration

17 when adopting standards requiring the District to expend

18 capital funds for infrastructure to comply with the

19 standard. Are you referring there to the future

20 rulemaking based on the UAA studies or are you referring

21 to this rulemaking?

MR. LANYON: It would apply to either

23 situation.

HEARING OFFICER MCGILL: Would the District

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1 face those expenses under the current DO standard or

2 similar expenses if the DO standard did not change?

MR. LANYON: Well, since we're involved in

4 the UAA studies, there have been no demand by the Agency

5 that we meet the current standards, and as I pointed out,

6 at some times we don't meet the current standard.

HEARING OFFICER MCGILL: Do you know if

8 those sorts of capital expenditures would be required if

9 the IAWA proposal were adopted?

MR. LANYON: I -- Well, yes, that would

11 accept the -- that would apply to the segments of our

12 waterways that are presently general use, and all I'm

13 suggesting there is that you have to give us some time to

14 come into compliance in terms of, you know, designing and

15 constructing facilities and doing this within what we're

16 now allowed to do in terms of statutory authority for tax

17 levies.

HEARING OFFICER MCGILL: When you say take

19 it into account, is that something that you would expect

20 to see in rule language or are you just referring to the

21 Agency's enforcement discretion or --

MR. LANYON: It could be enforcement

23 discretion. It could be a waiver. We would come back

24 and ask for time to do this. I mean, you know --

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HEARING OFFICER MCGILL: That's --

MR. LANYON: Or it could be built into an

3 implementation plan as part of the rulemaking.

HEARING OFFICER MCGILL: That's actually

5 related to a couple of points that Mr. Kollias made, and

6 maybe I could just ask about those now. He suggested

7 that the -- this is page 8 and 9 of his prefiled

8 testimony. He asked the Board to consider two items;

9 one, for urban-impacted and CSO-impacted streams, a

10 waiver provision should be allowed for time for further

11 study of the affordability and feasibility of technology

12 that must be installed for these streams to come into

13 compliance, and then also a separate wet weather standard

14 applicable to the time following stormwater runoff that

15 would allow reduced DO levels for a limited period needs

16 to be investigated. Those two concepts along with the

17 item we were just talking about from your testimony, has

18 the District considered whether its concerns could be

19 addressed by an adjusted standard or site-specific

20 regulation under the Environmental Protection Act for a

21 variance, for example?

MR. LANYON: Well, we could pursue either of

23 those options. I'm --

HEARING OFFICER MCGILL: Okay. I just

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1 wondered if existing regulatory relief mechanisms might

2 be adequate as opposed to the suggestions here, which

3 seem to call for rule language building in specific types

4 of waivers or variances.

MR. LANYON: If there was some understanding

6 of our ability to obtain that relief, that would not be a

7 problem, using those existing remedies.

MR. RAO: And as a follow-up to Mr. McGill's

9 question, these two items that you have requested that

10 the Board give consideration, are those -- you know, are

11 you asking those issues to be addressed only in terms of

12 how this rule may affect the District or in general for

13 the state-wide regulations?

MR. LANYON: Well, we're addressing our

15 concerns in the Chicago area. There may be other

16 concerns downstate, but I'm not addressing that.

MR. RAO: Okay.

HEARING OFFICER MCGILL: Any further

19 questions for these witnesses? Okay. If you wouldn't

20 mind just sticking around, we had a few questions related

21 to your testimony that we wanted to pose to DNR and the

22 Agency, and maybe I could just pick up with Ms. Williams'

23 last question. Mr. Kollias at page 8 had referred to the

24 running average method and calendar week method for

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1 calculating seven-day daily minimum or seven-day daily

2 mean DO value, calling for one method to be recommended,

3 and then the same question or same -- they call for the

4 same clarification to be made in the rule for the

5 thirty-day average. Do you know if you had any thoughts

6 on that, whether that might be a -- whether that should

7 be addressed in this board rulemaking, and if so, how?

MR. SHORT: In regard to calculating the

9 seven-day means, one, we don't necessarily think it needs

10 to be in the rule. Our preference would be for just a

11 seven-day running average. One of the issues with the

12 continuous monitoring which this would deal with is that

13 setting it by calendar week might make it difficult for

14 some of our monitoring structure. We can get to a site

15 on a Wednesday and put the monitor out for seven days.

16 That wouldn't exactly fall in what people typically would

17 think of as a calendar week, so we would prefer just a

18 straight seven-day running average. Does that --

MR. FREVERT: I want to follow up on that.

20 Beyond administrative ease or any practicality, I think

21 we're trying to establish a standard that is protecting

22 the organisms in the biological community out there, and

23 they don't know a Saturday or a Sunday. If they're

24 exposed to this stressful condition for seven days, it

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1 doesn't matter whether it goes from one particular period

2 to another. It's a continuous time frame. I think

3 that's why the rationale is the running average is the

4 way to look at it.

HEARING OFFICER MCGILL: I'm sorry. If you

6 could just identify yourself for the court reporter.

MR. SHORT: Oh, I'm sorry.

HEARING OFFICER MCGILL: We missed you

9 there. Thanks.

MR. SHORT: I apologize. I identified

11 myself yesterday. Matt Short with the Illinois EPA.

HEARING OFFICER MCGILL: Thank you. So the

13 Agency's sense was that the rule should not include

14 specification of running average method but you -- that's

15 what you'd look for or you'd prefer?

MS. WILLIAMS: That's what I heard.

MR. FREVERT: Yeah. Again, I think it's --

18 if that condition exists for seven days and it's below

19 that average, our methodology and our biological

20 conclusion is it constitutes an unacceptable level of

21 stress, so a running average, in my mind, makes sense.

HEARING OFFICER MCGILL: Okay. And the

23 District had also asked that the final rule address

24 minimum frequency of monitoring and number of sampling

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1 points. The Agency's thoughts on those issues?

MR. FREVERT: Number of sampling points,

3 wherever the standard applies is where it applies. It

4 can be one; it can be more than one. The point is, I

5 believe, if the condition is exceeded or not met in a

6 location that's designated to support that use, you can

7 make a legal conclusion or a programatic conclusion and

8 you don't have to duplicate it in multiple places.

In terms of number of samples, I think that

10 varies a lot depending on the actual dynamics of the

11 system and how much variation there is in the oxygen

12 profile from minute to minute and hour to hour over the

13 course of a day or a week, so I think it's impossible to

14 even -- even if you desire to make the needs of

15 administrative ease to specify a specific number of

16 samples, it is going to achieve the level of statistical

17 representatives that is necessary to draw the conclusion

18 the seven-day period really did average this value. I

19 don't think you can magically say that's X or Y samples.

20 In terms of a minimum, yeah, to determine the absolute

21 daily minimum, I think we need a minimum of one sample.

22 To determine a period average, I think we need in excess

23 of one sample. I can't go beyond that at this point.

HEARING OFFICER MCGILL: There was some

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1 dispute earlier as to what you may have said about

2 potential agency rules. Is there anything you wanted to

3 add on that, agency rules addressing issues like

4 implementation, sampling, methodologies, etc.?

MR. FREVERT: I -- Sure, I'd be happy to

6 fill in. I don't anticipate any agency rules on that.

7 We certainly establish our own field practices and field

8 methodology, and we may identify some guidelines there

9 for applications in certain types of circumstances, but

10 that -- again, that's our field methods and manuals.

11 That's not a regulation or an agency rule.

HEARING OFFICER MCGILL: Thank you. I saw

13 that we did have one person sign up for -- who did not

14 prefile who was interested in testifying, so at this

15 point we'll give one last opportunity for questions to

16 any of these witnesses present. Okay. Seeing none, why

17 don't we go off the record for one moment, please.

(Off the record.)

HEARING OFFICER MCGILL: Okay. Why don't we

20 go back on the record. Chairman Girard has a follow-up

21 question which he will ask now, and then we'll move on

22 with the final witness.

CHAIRMAN GIRARD: I just have a general

24 implementation question. It probably can go to

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1 Mr. Frevert, let him decide who can answer it, or maybe

2 he can, but if -- let's just say that -- speculate if the

3 Board does change the dissolved oxygen general water

4 quality standard at some point in the future, just let's

5 say January 1, 2008, it takes effect, how would that

6 impact your implementation in terms of rewriting NPDES

7 permits as they come up in relation to things like permit

8 conditions, things of that sort?

MR. FREVERT: In those instances, if we have

10 a special condition that would require stream monitoring

11 for the specific purposes of trying to assess attainment

12 of the standard of the stream, there would be the obvious

13 need to go back and look at those special conditions and

14 see if we have to modify them and change the monitoring

15 regime or frequency or things of that nature. Beyond

16 that, we would use the standard -- as I said, if somebody

17 applied for it in terms of a lagoon exemption, we'd relax

18 their BOD limits from 10 to 30 or from 20 to 30, and in

19 that regard we would use a new standard as the end point

20 in that predicting model, but beyond that, I don't see

21 many specific ramifications on the way we operate our

22 NPDES permitting program.

CHAIRMAN GIRARD: Would you need to rework

24 any permits that are currently in place before they come

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1 up for renewal?

MR. FREVERT: I don't believe so. As a

3 matter of practice we don't routinely do that, but our

4 permits do have boilerplate language in them, does have a

5 reopener clause, so if necessary, we could do that.

CHAIRMAN GIRARD: Thank you.

HEARING OFFICER MCGILL: Thank you. Any

8 other questions?

MR. ETTINGER: I just had a couple just to

10 follow up on Mr. Girard's questions.

HEARING OFFICER MCGILL: Sure. If you could

12 just use the microphone, please.

MR. ETTINGER: Oh, I'm sorry. How many

14 Illinois permits have ambient stream monitoring as a

15 requirement or a condition?

MR. FREVERT: A small number. I don't know.

MR. ETTINGER: 1 percent? 10 percent?

MR. FREVERT: I would guess less than 1

19 percent.

MR. ETTINGER: And the reason that the

21 change in the standard is unlikely to change in any NPDES

22 permit limits is because now IEPA uses a deoxygenating

23 waste rule that describes 10 milligrams per liter CBOD or

24 20 milligrams per liter CBOD in all of its NPDES permits;

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1 is that correct?

MR. FREVERT: Lacking the word all, I would

3 agree with you. In the vast majority of them, that's

4 correct.

MR. ETTINGER: Thank you.

HEARING OFFICER MCGILL: Thank you. Any

7 further questions? Seeing none, we have another witness.

8 I'd ask the court reporter to swear in the witness,

9 please.

(Witness sworn.)

HEARING OFFICER MCGILL: If you could state

12 your name, title and organization, please, and then

13 proceed with your testimony.

MS. SKRUKRUD: Okay. My name is Cindy

15 Skrukrud. I work as a clean water advocate for the

16 Illinois chapter of the Sierra Club, and I have just a

17 brief statement based on Sierra Club's participation in

18 this proceeding to date.

We agree with the IAWA that Illinois' current DO

20 standard is very simple. The proposal to revive the

21 Illinois -- revise the Illinois standard has brought to

22 light the complexity of determining the best standard for

23 a state which encompasses the Shawnee Forest to the Rock

24 River basin. Like everyone here, of course we wish we

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1 had more data available to us, but we have been pleased

2 with how the Illinois EPA and Illinois Department of

3 Natural Resources have engaged their scientists in the

4 development of their proposed standard. This includes

5 involving the many field biologists who are the ones who

6 know Illinois waters from north to south, including large

7 rivers and small streams. Thus, we support the Agency's

8 proposal.

The joint agency prefiled testimony of April 3,

10 2006, contains a technical support document, Exhibit 23,

11 that spells out the research and analysis that supports

12 the State's recommendation regarding the proposed

13 narrative standard, regarding stream segments containing

14 aquatic life that met the threshold for higher DO

15 standards and their research into the spawning periods of

16 Illinois fish and DO requirements of different life

17 stages. However, we have been convinced by Dr. Murphy's

18 concerns that a revised standard must ensure sufficient

19 dissolved oxygen for aquatic life during low

20 temperatures. While it will likely not have any

21 practical impact, we support a revision to the State's

22 proposal to require a higher minimum DO level in the

23 months of December to March. We believe a minimum level

24 of 6.5 milligrams per liter would be appropriate.

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Regarding the Agency's definitions of quiescent

2 water, reservoirs, etc., we have concerns regarding their

3 future application but believe the rules are capable of

4 being implemented in a manner that will protect Illinois

5 aquatic life. This proceeding has also shown the need

6 for more research, including more continuous DO

7 monitoring and a better understanding of the impact of

8 nutrients and other man-made factors on dissolved oxygen

9 levels in our rivers and streams and the impact of those

10 DO levels -- the impact those DO levels have on aquatic

11 life in all parts of the state. Thank you.

HEARING OFFICER MCGILL: Thank you. Any

13 questions for the witness?

MS. WILLIAMS: I just wanted to sort of

15 flesh out the record a little bit. Cindy, could you

16 explain to the Board why you feel your recommendation for

17 the cold weather number would have little practical

18 effect?

MS. SKRUKRUD: Well, as -- I think as --

20 from the limited look at -- that we've done at what the

21 DO levels are in streams during those cold months,

22 believe that as Dr. Murphy testified yesterday, even a

23 place like Bubbly Creek is able to meet a 6 and a half

24 milligram per liter DO level during winter months.

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HEARING OFFICER MCGILL: I just had a

2 question on where -- you said a 6.5 milligrams per liter

3 from December through March inclusive, and you're

4 suggesting that as an amendment to the DNR/Agency

5 proposal?

MS. SKRUKRUD: Yes.

HEARING OFFICER MCGILL: And would that then

8 apply in both the tier I and tier II?

MS. SKRUKRUD: Let me just look at -- yes.

HEARING OFFICER MCGILL: And I'm sorry.

11 That 6.5 milligrams per liter, it's still a dissolved

12 oxygen concentration?

MR. SKRUKRUD: Yes.

HEARING OFFICER MCGILL: It's not the

15 percent saturation?

MS. SKRUKRUD: No. I mean, basically, that

17 proposal takes into account the need to make sure that

18 the oxygen partial -- that we have an oxygen partial

19 pressure gradient at all temperatures that allows for a

20 proper gas exchange between the water and the organism,

21 and to achieve approximately the same saturation level

22 that we get at when you have a DO level of 3.5 milligrams

23 per liter in August, to achieve that in water

24 temperatures near freezing, you would have to have a DO

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1 concentration of around 6.5 milligrams per liter.

HEARING OFFICER MCGILL: And is that 6.5 at

3 any time?

MS. SKRUKRUD: Yes.

HEARING OFFICER MCGILL: Thank you.

MS. SKRUKRUD: Thank you.

HEARING OFFICER MCGILL: Just one more

8 clarifying question. The 6.5 for those months, would

9 that apply in addition to all of the other standards that

10 are set forth in the DNR/Agency proposal?

MS. SKRUKRUD: Yes.

HEARING OFFICER MCGILL: Except presumably

13 it would trump the --

MS. SKRUKRUD: Yeah. Except for the ones it

15 would trump, yeah.

HEARING OFFICER MCGILL: Okay. Thank you.

17 Any further questions for this witness? Mr. Harsch?

MR. HARSCH: Roy Harsch on behalf of IAWA.

19 Do you have any data that supports that all the streams

20 in the state approach the temperatures that Dr. Murphy

21 was testifying about during those months of December

22 through March?

MS. SKRUKRUD: That all streams get down

24 towards freezing during winter months?

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MR. HARSCH: Yes.

MS. SKRUKRUD: No, I haven't made a study of

3 which streams do not get near freezing during winter

4 months.

MR. HARSCH: No further questions.

HEARING OFFICER MCGILL: Any further

7 questions for the witness? Seeing none, I'd like to

8 thank you for testifying.

MS. SKRUKRUD: Thank you.

HEARING OFFICER MCGILL: And I would like

11 to -- before we wrap up with a few procedural items, I'd

12 like to applaud everyone's efforts in this rulemaking.

13 It's very much appreciated. Just to make sure, is there

14 anyone else who wishes to testify today? Seeing no one,

15 why don't we go off the record for a moment.

(Off the record.)

HEARING OFFICER MCGILL: Okay. Why don't we

18 go back on the record. We just had a conversation off

19 the record to discuss a prefirst notice public comment

20 filing deadline, so to ensure that your public comment is

21 considered by the Board in any first notice decision, I'm

22 setting a prefirst notice public comment filing deadline

23 of December 20. That's a Wednesday. We can say mailbox

24 rule, so you just have to get it in the mail that day, or

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1 obviously you can electronically file, but make sure you

2 get it postmarked by the 20th. Anyone may file written

3 public comments in this rulemaking with the Clerk of the

4 Board from now until at least 45 days after any first

5 notice proposal is published in the Illinois Register.

6 Filing with the Board, whether made in paper or

7 electronically on Clerk's Office On-Line, or COOL, must

8 also be served in hard copy on the Hearing Officer and on

9 those persons on the service list. The RO4-25 service

10 list is updated from time to time and is available on the

11 Board's Web site. Copies of this hearing transcript

12 should be available at the Board by -- and posted on our

13 Web site by November 17.

Does anyone have any questions about any

15 procedural items at this point? Feel free to contact me

16 if anything comes up. Are there any other matters that

17 need to be addressed at this time? Seeing none, I again

18 would like to thank everyone for their participation

19 yesterday and today and throughout this rulemaking

20 proceeding, and this hearing is adjourned. Thank you.

(Hearing adjourned at 12:21 p.m. on November

3, 2006.)

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1 STATE OF ILLINOIS )

) SS

2 COUNTY OF BOND

)

I, KAREN WAUGH, a Notary Public and Certified

5 Shorthand Reporter in and for the County of Bond, State

6 of Illinois, DO HEREBY CERTIFY that I was present at

7 Illinois Pollution Control Board, Springfield, Illinois,

8 on November 2 and 3, 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.

IN WITNESS WHEREOF I have hereunto set my hand

13 and affixed my Notarial Seal this 13th day of November,

14 2006.

__________________________

Notary Public--CSR

#084-003688

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