1

ILLINOIS POLLUTION CONTROL BOARD

April 23, 2007

3 IN THE MATTER OF:

TRIENNIAL REVIEW OF SULFATE AND

)

5 TOTAL DISSOLVED SOLIDS WATER

)

QUALITY STANDARDS:

)

6 PROPOSED AMENDMENTS TO:

)

35 Ill. Adm Code 302102(b)(6),

)

7 302.102(b)(8)405.109(b)(2)(A),

)

405.109(b)(2)(B), 406.100(d);

)

8 REPEALED 35 Ill. Adm. Code 406.203, )

PART 407; and PROPOSED NEW 35

)

9 Ill. Adm. Code 302.208(h)

)

REPORT OF PROCEEDINGS held in the

11 above-entitled cause before Hearing Officer Marie

12 Tipsord, called by the Illinois Pollution Control

13 Board, taken before Laura Bernar, CSR, a notary

14 public within and for the County of Cook and state

15 of Illinois, at the James R. Thompson Center, 100

16 West Randolph Street, Chicago, Illinois, on the 23nd

17 day of April, 2007, commencing at the hour of 10:00

18 a.m.

L.A. REPORTING (312) 419-9292

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

SONNENSCHEIN NATH & ROSENTHAL

7800 Sears Tower

233 South Wacker Drive

Chicago, IL 60606-6404

(312)876-7934

BY: MR. JEFFREY C. FORT

Appeared on behalf of Citgo

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

BY: MR. BRIAN T. KOCH

MR. SANJAY K. SOFAT

MR. ROBERT G. MOSHER

ENVIRONMENTAL LAW & POLICY CENTER

35 East Wacker Drive

Suite 1300

Chicago, Illinois 60601-2110

(312)795-3707

BY: MR. ALBERT F. ETTINER

Appeared on behalf of Prairie Rivers

Network, Sierra Club, and the Environmental

Law Policy Center;

ILLINOIS COAL ASSOCIATION

212 South Second Street

Springfield, Illinois 62701

(217)528-2092

BY: MR. PHILLIP GONET

Appeard on behalf of the Illinois Coal

Association;

20 ILLINOIS POLLUTION CONTROL BOARD:

21 Ms. Marie Tipsord, Hearing Officer

22 Mr. G. Tanner Girard, Acting Chairman

Mr. Anand Rao, Senior Environmental Scientist

23 Ms. Alisa Liu, Board Member

Mr. Thomas Johnson, Board Member

L.A. REPORTING (312) 419-9292

MS. TIPSORD: Good morning. My name

is Marie TIPSORD, and I've been appointed by

the Board to serve as hearing officer in this

proceeding entitled in the matter of

Triennial Review of Sulfate and Total

Dissolved Solid water quality standards. I

won't repeat all the sections that it's

proposed to amend and repeal. It's docket

No. RO7-9. To my left is Dr. Tannner Girard,

the lead board member assigned to this

matter. And to his left is Mr. Thomas

Johnson, one of our board members as well.

To my immediate right Anand Rao with our

technical staff, and to his right Alisa Liu,

also with our technical staff.

This is the second hearing to

be held in this proceeding. The purpose of

today's hearing is to hear prefiled testimony

in this matter. I've received testimony from

James Huff and Bridget Postel; is that

correct.

MS. POSTEL: Postel.

MS. TIPSORD: On behalf of Citgo.

I've also received testimony from Glynnis

L.A. REPORTING (312) 419-9292

Collins on behalf of Prairie Rivers Network,

Sierra Club, and the Environmental Law Policy

Center. I've also received questions for the

Agency. We will begin with presentation by

Citgo followed by the presentation by

Ms. Collins and the environmental groups.

When Citgo -- when their two witnesses have

read their testimony in, then we will allow

for questions. We'll do it as a panel. Same

with Ms. Collins. When she's read her

testimony, then we'll allow for questions.

After we're done with that, we will go to the

Illinois Coal Association who notified me

last week that a comment that was filed on

April 9. They would like to present as

testimony. We will allow Mr. Phil Gonet and

his expert witness to be sworn in and read in

the testimony and present them then for

questions.

In addition, there's a sign-up

sheet to the side of the room. If anyone

else would like to testify today, if you did

not prefile, you may sign up, and as time

allows we will get to you. After we have

L.A. REPORTING (312) 419-9292

finished with the prefiled testimony, I would

like to swear in the Agency witnesses and

allow them to answer the prefiled questions.

When it comes time to question a witness,

anyone may question them. I ask that you

raise your hand and let me acknowledge you.

After I've acknowledged you, please state

your name and whom you represent before you

begin your question. Please speak one at a

time. If you're speaking over each other,

the court reporter will not be able to get

your questions on the record. Please note

any question asked by a board member or staff

is intended to help build a complete record

for the Board's decision and not to express

any preconceived notions or bias.

Also to the left of me at the

back of the room here are sign-ups for the

notice and service list. If you wish to

receive all filings in this, you would sign

up for the service list; if you only wish to

receive board action and hearing officer

notices, that would be the notice list. If

you are on the service list, you must serve

L.A. REPORTING (312) 419-9292

everything on the people on the service list.

That does bring me to a note: The service

list is all that you need to serve people.

Right now our service list is very short.

Our notice list is very long, and I've

noticed that almost everybody has been

serving everything on the notice list. So be

sure that when you look at it that you're

looking at the service list and not the

notice list just to save yourselves some time

and money. Like I say, the notice list is

very long, the service list is very short.

There's only four or five names on the

service list.

The second purpose is this

rule making is subject to 27(B) of the

Environmental Protection. Section 27(B) of

the Act requires the Board to request the

Department of Commerce and Economic

Opportunity to conduct an economic impact

study on proposed rule prior to the adoption

of the rules. If DCEO chooses to conduct an

economic impact study DCEO has 30 to 45 days

after such a request to produce a study of

L.A. REPORTING (312) 419-9292

economic impact of the proposed rules. The

Board then must make economic impact study or

DCEO's explanation of not conducting the

study available to the public at least 20

days before the public hearing on the

economic impact of the proposed rules. In

accordance with section 27(B) of the act, the

Board requested by letter dated November 27,

2006, that DCEO conduct an economic study for

the above-referenced rulemaking. The Board

has not received a response. A copy of the

Board's letter is available at the back of

the room, and we will accept comments

concerning the economic impact study.

Dr. Girard, is there anything you'd like to

add?

CHAIRMAN GIRARD: Good morning. On

behalf of the Board I welcome everyone to the

hearing this morning. We are very grateful

for all the time that various groups and

individuals have put into this rulemaking.

We look forward to your testimony and

questions today. Thank you.

MS. TIPSORD: Mr. Fort, we'll start

L.A. REPORTING (312) 419-9292

with you.

MR. FORT: Thank you. My name is

Jeffrey Fort, Sonnenschein, Nath & Rosenthal,

on behalf of Citgo. And with me is my

colleague Elizabeth Lifel. We have two

witnesses to present today: Ms. Bridget

Postel and Mr. Jim Huff. And as the hearing

officer just indicated, that they'll present

their testimony. We're going to ask that

Mr. Huff's testimony also be made an exhibit

because he has some data attached, and we do

appreciate the board's attention and

opportunity to present this information. So

I'd ask -- Do you want to swear them both in.

MS. TIPSORD: We'll swear them both

in.

(Witnesses sworn.)

MS. TIPSORD: Then if there's no

objection we'll enter Mr. Huff's testimony as

Exhibit 1. Seeing none, it's Exhibit No. 1.

MR. FORT: Miss Postel?

MS. POSTEL: My name is Bridget

Postel. I've been employed by CITGO

Petroleum Corporation for the past three

L.A. REPORTING (312) 419-9292

years. I have worked at Lemont Refinery

since October of 2003. At Lemont Refinery, I

have held the position of environmental

engineer --

MS. TIPSORD: Could you slow down just

a little bit.

MR. FORT: We have more copies of her

testimony if anybody would like those.

MS. POSTEL: I received a Bachelor of

Science in Chemistry from the University of

Illinois, Champaign-Urbana, and a Master's of

Science in Environmental Engineering from

Lamar University, Beaumont, Texas.

Prior to my time at Lemont

Refinery, I have held various environmental

positions in the pharmaceutical, chemical,

and power industries.

Citgo operates its Lemont

Refinery at 135th and New Avenue in Will

County, Illinois. The Refinery was

constructed during the period of 1967 through

1970. It became operational in late fall of

1969. Currently, the average daily

production is 168,626 barrels per day, and

L.A. REPORTING (312) 419-9292

the Refinery employs approximately 530

people.

Approximately twenty-five

different products are produced at the

Refinery, including gasolines, turbine fuels,

diesel, furnace oil, petroleum coke and

various specialty naphthas which can be

manufactured into many intermediate products

including antifreeze, dacron, detergent,

industrial alcohols, particulars, and

synthetic rubber. 90 percent of the

Refinery's output goes into making gasolines,

diesel fuels, home heating oils and turbine

fuels for use in Illinois and throughout the

midwest.

The Refinery draws from and

discharges to the Chicago Sanitary and Ship

Canal. The Refinery takes approximately

4 million gallons of water daily from the

canal and discharges approximately

3.8 million gallons to the canal, the

difference being cooling tower evaporation

and steam losses. The wastewater effluent

contains dissolved solids derived from

L.A. REPORTING (312) 419-9292

compounds present in crude oil that are

removed from the crowd by various Refinery

operations, as well as concentrating the TDS

present in the intake water from the canal

from the evaporation cooling.

The Refinery operates under a

National Pollutant Discharge Elimination

System, IL0001589 issued by the Illinois

Environmental Protection Agency. The NPDES

permit became effective September 1, 1994.

Citgo filed a timely NPDES renewal

application in 1997, and a renewed NPDES

permit was issued on July 28, 2006. The

NPDES permit included outfall 001 at the

Refinery at River Mile 296.5 on the canal.

The purpose of my testimony today

is two fold: To support the requested rule

change by the Agency and to request that the

Board also extend the changes pertaining to

TDS and sulfates to Lemont Refinery.

The Refinery has been in

operation since 1969. Until recently,

however, we did not have occasion to be

concerned with the total dissolved solids

L.A. REPORTING (312) 419-9292

component of our effluent. Until the most

recent NPDES permit was issued last year,

CITGO's NPDES permits had not limited the

discharge for TDS.

TDS has become an issue for

the Refinery due to the agreement that CITGO

reached with the U.S. EPA and the states of

Illinois, Louisiana, New Jersey, and Georgia

to substantially reduce the sulfur dioxide

and nitrous oxide emissions from several

facilities, including Lemont Refinery. Due

to the discharge from the Wet Gas Scrubber,

that is the key component of an emission

control project, we found that increased

levels of TDS would be discharged. As we

were developing the project, we also learned

that due to TDS levels in the lower Des

Plaines River near the I-55 bridge, that the

IEPA would not issue a construction permit

for that project.

Treatment for TDS in the

wastewater stream was not neither technically

feasible nor economically reasonable. Deep

well injection was not an option according to

L.A. REPORTING (312) 419-9292

information we obtained from the Agency.

Technology for removing sodium sulfate from a

dilute aqueous stream are limited.

Electrodialysis has never been applied in the

chemical or Refinery industries on the scale

required at the Refinery. Biological sulfate

reduction is theoretically possible, but this

will not reduce the overall TDS concentration

merely by replacing the sulfate ions with

carbonate ions. The concentration of sodium

sulfate is too high for reverse osmosis, as

scaling problems would develop. The sole

technology potentially available is

evaporation, an energy intensive approach,

which will result in increased carbon dioxide

emissions to the atmosphere. This technology

would result in a capital cost on the order

of $7 million and operating costs including

depreciation of $1 million per year, assuming

that the Refinery has sufficient steam

capacity and that a new boiler is not

required.

This situation led to us

researching the TDS water quality issues. We

L.A. REPORTING (312) 419-9292

learned of efforts by IEPA to eliminate the

existing TDS water quality standard for both

General Use and Secondary Contact waters.

Thus, CITGO began following the TDS

rulemaking since its inception. CITGO was in

attendance at the first shareholders meeting

which took place in Springfield on spring of

2004. In July 2004 CITGO contacted Linda

Holst of U.S. EPA Region 5 to advise U.S. EPA

that the TDS water quality standard change

affected more than just the Illinois coal

industry. In August 2004, Dave Soucec of

INHS was contacted by CITGO to discuss the

time frame for the additional toxicity

testing Region 5 required before they would

approve the proposed TDS rule change. It was

determined that the requested data could take

six months to a year to generate and be

approved by Region 5. Also throughout the

summer of 2004, Bob Mosher was contacted by

CITGO to discuss the proposed TDS rule change

and the potential impacts to projects

required in a pending consent decree. We

learned that the rule change to remove the

L.A. REPORTING (312) 419-9292

TDS standard was proceeding, but it became

clear, even two years ago, that it would not

happen in a timely manner for the Lemont

Refinery.

Given the obligations imposed

by CITGO U.S. EPA and Illinois, the only

viable option to allow the construction

schedule to proceed was to file a variance.

On October 6, 2004, CITGO's

consent decree was lodged. One requirement,

installation of air pollution control

equipment by December 2007, would result in a

scrubber wastewater stream with elevated TDS.

With the proposed TDS rule change, a variance

would not be required; however, in

discussions with Bob Mosher, it was evident

that the rule change would not be promulgated

before a construction permit for the scrubber

facilities was needed to meet the timeline

outlined in the consent decree. Subsequently

on November 8, 2004, CITGO filed a petition

for a variance from TDS water quality

standards. On December 21, 2004, a

construction permit for a purge treatment

L.A. REPORTING (312) 419-9292

unit was submitted to the Agency.

On April 2005, the Board

granted a five-year TDS variance to CITGO.

It's PCB05-85. On May 1, 2006, IEPA granted

a construction permit for the purge treatment

unit. CITGO has been proceeding to install

the equipment required under the consent

decree and the construction permit. That

project is on schedule. We have been

collecting the water quality data as required

by the variance. Jim Huff will include the

data as part of his testimony.

On May 2, 2006, CITGO attended

a stakeholder meeting convened by IEPA to

discuss changes to the sulfate, TDS, and

mixing zone regulations. It was at this time

that CITGO learned of the significant change

to the previously proposed TDS rule.

Secondary Contact TDS water quality standards

would remain intact, and the General Use

water quality standard would be eliminated.

Secondary Contact TDS water quality standards

would be a component of a DRAFT UAA proposal.

In the UAA proposal, TDS for Secondary

L.A. REPORTING (312) 419-9292

Contact waters would also be eliminated.

CITGO has made multiple written requests to

IEPA to amend the Secondary Contact TDS

standard concurrently with the General Use

TDS standard. The Agency has responded that

the Secondary Contact TDS standard will be

addressed during the UAA process. It is

apparent that the UAA process is experiencing

delays. At a March 20, 2007 stakeholder

advisory meeting, there was much controversy

surrounding the definition of attainability

and water quality criteria such as the

ammonia, dissolved oxygen, temperature, and

bacteria. Elimination of TDS water quality

standard was not commented on by industry,

environmental groups, or U.S. EPA. To

CITGO's knowledge, TDS has never been raised

as an issue during UAA discussions.

Moreover, we understand that

the only point source permitted dischargers

into Secondary Contact waters who are

adversely affected by the TDS water quality

standard are Lemont Refinery and the

Exxon-Mobil Joliet Refinery. We base this

L.A. REPORTING (312) 419-9292

conclusion on several conversations with

Agency staff and a review of the Board's

dockets. The Board recently granted

site-specific relief to Exxon-Mobil, and it's

PCB R06-024. CITGO did not have that amount

of the time under our consent decree.

CITGO does not agree that the

UAA process is the only correct avenue to

amend the Secondary Contact TDS water quality

standard. We see no reason why the Board

cannot amend the Secondary Contact TDS

standard at the same time as General Use

waterways, at least as it pertains to CITGO,

and any other discharger adversely affected

by the present standards.

If the Secondary Contact TDS

standard is not amended during this

proceeding, CITGO may be compelled to begin

the process of a site-specific rulemaking,

similar to the recent rulemaking granted

Exxon-Mobil. Such a proceeding would repeat

the same testimony and evidence as presented

in this proceeding. We fail to see why

duplication is necessary.

L.A. REPORTING (312) 419-9292

The conclusions are: The

information which justified the deletion of

the TDS standard in General Use waters

applies equally to Secondary Contact

standards such as Lemont Refinery's receiving

waters. The UAA proceeding is not the only

appropriate avenue from removing the TDS

standard for Secondary Contact waters. Due

to the delays that have occurred in the UAA

proceeding, CITGO's obligations under its

consent decree may come due before the UAA

proceeding materializes into a final rule.

We urge the Board to recognize

that removal of the TDS standard for

Secondary Contact waters is consistent with

the Agency's proposal to remove the TDS

standard for General Use waters by

eliminating the TDS standard for Secondary

Contact waters in this proceeding, to the

extent applicable to the CITGO Refinery.

MS. TIPSORD: Before we go to

Mr. Huff, I have a couple of -- I'll reserve

most questions, but you skipped over some

stuff in your testimony that was in parens in

L.A. REPORTING (312) 419-9292

your written testimony. And I just want to

be sure that we get that in. First of all,

is it correct that the UAA is the Use

Attainability and Analysis draft?

MS. POSTEL: Yes.

MS. TIPSORD: And Page 5 of what you

submitted as a written comment, and you read

in, "Moreover, we understand that the only

permitted discharge is into Secondary Contact

waters who are adversely affected by the TDS

water quality standard," and then in brackets

you have either in General Use waters or the

Secondary Contact waters are CITGO and Exxon;

is that correct?

MS. POSTEL: Yes.

MR. FORT: I think we should probably

limit that statement about General Use waters

in the Chicago River System, Ship Canal, and

lower Des Plaines River System as opposed to

the whole state. That could be an

implication from the way we wrote this.

MS. TIPSORD: Is that correct,

Miss Postel?

MR. FORT: We're limiting it to

L.A. REPORTING (312) 419-9292

the Ship Canal --

MS. TIPSORD: But unless you want me

to -- Mr. Fort, unless you want me to swear

you in, we need to ask her if that's correct.

MS. POSTEL: Yes.

MS. TIPSORD: Thank you. Go ahead,

Mr. Huff.

MR. HUFF: My name is James E. Huff

and I'm vice president and part owner of the

environmental consulting firm Huff and Huff,

Inc. I'm here to day on behalf of CITGO's

Lemont Refinery which discharges into Chicago

Sanitary and Ship Canal, a Secondary Contact

waterway. I'm a registered professional

engineer in Illinois and have been involved

in Illinois water quality issues since 1971,

including the original Pollution Control

Board water quality standards. I have been

following closely the Agency's efforts to

amend the total dissolved solids, TDS, and

sulfate water quality standards since 2004.

Attachment 1 to my testimony is a copy of my

education and experience.

The Agency's efforts to amend

L.A. REPORTING (312) 419-9292

the water quality standards for TDS and

sulfate, which included expanding our

knowledge of sulfate toxicity as it relates

to hardness and chlorides are to be

commended. Illinois has an opportunity to

develop water quality standards based on

better science than what has historically

been available that will be protective of the

designated stream uses.

Bob Mosher and Brian Koch of

the Illinois Environmental Protection Agency

addressed in detail the aquatic toxicity as

well as livestock watering impacts associated

with higher sulfates along with describing

the U.S. EPA procedure utilized to derive the

General Use sulfate water quality standard.

I have reviewed the Agency's testimony and

exhibits and fully support the Agency's

proposed changes as they apply to General Use

streams.

Secondary Contact and

Indigenous Aquatic Life (Secondary Contact)

Standards are not currently included in the

Agency's proposed changes to the sulfate and

L.A. REPORTING (312) 419-9292

TDS water quality standards. I would

recommend that changes to the Secondary

Contact waterways for these same constituents

be included in this proceedings. Secondary

Contact waterways are not suited for General

Use activities such as swimming. Barge

transportation is a major stream use on the

Chicago Sanitary and Ship Canal and Des

Plaines River above the I-55 bridge. Given

the Agency's testimony in this rulemaking,

there is no technical reason not to eliminate

the TDS water quality standards proposed for

General Use streams to the Secondary Contact

waterways. The evidence already presented by

the Agency to support the General Use

proposal certainly applies to Secondary

Contact waterways as well.

At the March 7, 2007 hearing,

Toby Frevert indicated that the hardness and

chloride levels in the Ship Canal are similar

to the levels found in the lower Des Plaines

River. Mr. Frevert indicated that the Agency

was planning to modify all the Secondary

Contact water quality standards at one time,

L.A. REPORTING (312) 419-9292

and that was why the Agency was not proposing

sulfate and TDS changes at this time.

As the Board is aware, the

CITGO Lemont Refinery was granted a five-year

variance from the TDS water quality standard

in April 2005 to allow for the discharge of

additional TDS associated with the Wet Gas

Scrubber for sulfur dioxide removal. CITGO

elected to go with the variance route because

of the time constraints imposed by the U.S.

EPA in its concent order with CITGO and the

understanding the Agency's pending rule to

eliminate the TDS water quality change would

eliminate the need for the variance for the

entire five-year period requested. I would

note that in R06-24, Exxon-Mobil's site

specific request, the Agency noted in its

post-hearing comments that conditions 3, 5,

6, 7, and 10 in CITGO's variance would no

longer be pertinent. As part of CITGO's

variance conditions, TDS data at the I-55

bridge on the Des Plaines River is being

collected during the winter months.

Attachment 2 presents the data collected to

L.A. REPORTING (312) 419-9292

date. TDS levels exceeded the 1,000

milligram per liter from February 21 to March

7, 2007.

The Agency's sulfate and TDS

proposal was delayed in getting to the Board

and excludes Secondary Contact waterways.

This has put CITGO in a difficult position,

either file for a site specific rule change

or hope that the Secondary Contact water

quality changes will be submitted to the

Board and adopted within the next three

years.

Attachment 3 presents historic

sulfate water quality at the I-55 bridge on

the Des Plaines River. As Mr. Frevert noted,

similar levels would be expected in the

Chicago Sanitary and Ship Canal. With the

exception of one apparent outlier of 490

milligrams per liter sulfate (when the TDS

was only 720 milligrams per liter) the levels

had been below 120 milligrams per liter. In

RO6-24, Scott Twait of the Agency testified

that the hardness in the Des Plaines River is

205 milligrams per liter, and the chlorides

L.A. REPORTING (312) 419-9292

are 450 milligrams per liter. Using the

proposed agency equation as found in section

302.208(h)(2)(A), the sulfate water quality

standard would be 1,138 milligrams per liter.

The monitoring data at the I-55 bridge

demonstrates the sulfate levels are not only

well below the proposed water quality value,

but also well below the existing 500

milligram per liter sulfate water quality

standard. The combined impact from CITGO's

and Exxon-Mobil's Wet Gas Scrubbers will

result in the sulfate level at the I-55

bridge, increasing 29 milligrams per liter at

the 7-day, 10-year low flow of 970 million

gallons per day. Such an increase will not

cause the sulfate to increase above the

existing 500 milligrams per liter water

quality standard or the proposed 1,138

milligram per liter water quality standard.

As Bridget Postel from CITGO

has testified, the stakeholders meeting on

the proposed water quality changes last month

was contentious, and achieving consensus on

other issues is going to be a difficult task.

L.A. REPORTING (312) 419-9292

Sulfate and TDS were not part of the

disagreements, but use attainability and

changes to other pollutants, notably

temperature, ammonia, and bacteria are very

controversial. Clearly, relying on the

Secondary Contact water quality changes for

TDS is fraught with uncertainty from a timing

perspective, leaving CITGO with the one

option, filing a site-specific rule change

request before the board. This is not only

an unnecessary cost to the Board, Agency, and

CITGO, but also places an additional burden

on the same three groups. I'm sure there are

more critical issues that can be focussed

upon. That the Agency desires to amend

Secondary Contact water quality standards

only once seems like inadequate justification

for not adopting the TDS changes now.

As the Board is aware, there

are currently no sulfate or chloride water

quality standards on the Secondary Contact

waterways. The General Use sulfate standards

are limited to waterways having chloride

levels less than 500 milligrams per liter,

L.A. REPORTING (312) 419-9292

which is a General Use water quality standard

for chlorides. Attachment 4 to my testimony

is recent chloride data from CITGO's water

intake from the Chicago Sanitary and Ship

Canal. This location is upstream from the

CITGO outfall and reflects the stream quality

coming from the Chicago metropolitan area.

While there has been an overall decline in

peak chloride over the past decade, this past

winter was particularly challenging from a

de-icing perspective. The chloride levels

stayed elevated for a longer period of time

than in recent years. From February 19,

2007, to at least March 5, 2007, the

chlorides stayed above 500 milligrams per

liter. This is essentially the same time

frame that the TDS at the I-55 bridge

exceeded 1,000 milligrams per liter as

presented in Attachment 2. It is not clear

from the proposed regulations what sulfate

water quality would apply during such a

period of elevated chlorides on General Use

waterways, if the proposed General Use

sulfate standard were to be adopted.

L.A. REPORTING (312) 419-9292

However, the Agency's draft regulations for

Secondary Contact waterways has the same

equation as the General Use waterways, but

without the 500 milligram per liter chloride

cap on the use of the equation, as presented

below.

And that equation is sulfate

in milligrams per liter is equal to 1,276.7

plus 5.508 times the hardness in milligrams

per liter. And that quantity you're going to

subtract 1.457 times the chlorides in

milligrams per liter and then multiply the

entire equation by 0.65.

In summary, the Agency's

proposal is appropriate for primary contact

waterways with some clarification on the

standards when the chlorides exceed 500

milligram per liter. Adopting the above

equation for Secondary Contact waterways as

part of the R07-009 proceeding would also be

appropriate and consistent with the Agency's

intentions. Given the delays that will

undoubted ly occur in adopting revised

Secondary Contact Water Quality Regulations,

L.A. REPORTING (312) 419-9292

I would urge the Board to eliminate the TDS

water quality standard for Secondary Contact

waterways as part of these proceedings and

adopt the above sulfate standard. If the

Board is unwilling to do this for all

Secondary Contact waterways, we would ask the

Board to consider the deletion of the TDS

water quality standards it applies to CITGO.

This concludes my pre-filed testimony.

I will be happy to address any

follow-up questions.

MS. TIPSORD: Thank you, Mr. Huff. At

this time are there any questions for CITGO

witnesses? Ms. Liu?

MEMBER LIU: Good morning, Mr. Huff

and Miss Postel. Thank you for coming.

CITGO's variance in PCPO5-85 contains several

conditions which for which CITGO is allowed

to be granted relief from the TDS water

quality standard. If a site-specific rule or

some sort of exemption is allowed for CITGO

in this proposed rule, are you also proposing

that those relief contain similar conditions

as the variance?

L.A. REPORTING (312) 419-9292

MR. HUFF: Could you be more specific?

I'm sorry.

MEMBER LIU: Do you remember the

conditions that were part of the PCPO5-85?

MS. POSTEL: Yes.

MEMBER LIU: If some sort of

site-specific rule or exemption were granted

to CITGO for the TDS water quality standards

in this proposed rulemaking, would that also

carry similar conditions to what is now in

your current variance?

MR. HUFF: I think the intent under

the variance was to determine the size of

holding kinds when the stream exceeded the

1,000 milligrams per liter TDS. And I think

it's part of a site-specific request where

the goal would be to eliminate the need for

that holding, which is really where the

variance comes out at the end.

MS. POSTEL: But we would continue to

do monitoring as worked out with the Agency.

MS. TIPSORD: Thank you.

MR. ETTINGER: Mr. Huff, at the risk

of stealing a little of my witness's thunder,

L.A. REPORTING (312) 419-9292

I just want to read a couple of lines from

our testimony, pre-filed testimony to see if

you agree with it, and if I understand your

proposal. Miss Collins' testimony states,

her prefiled testimony states, "Proposed rule

does not define the sulfate standards for

those waters that is waters with" -- I'm

sorry.

"While it is true that

Illinois waters should not have chloride

levels in excess of the water quality

standard of 500 milligrams per liter, it is a

regrettable fact that many Illinois waters do

not meet these standards. The proposed rule

does not find a sulfate standard for these

waters unless hardness is greater than 500

milligrams per year, in which case under

302.208(H)(3)(B), the sulfate standards would

be 2,000 milligrams per liter. Proposed rule

must provide an equation, numeric standard,

or procedures for site-specific standards

development covering the entire range of

possible chloride and hardness levels in

Illinois waters."

L.A. REPORTING (312) 419-9292

As I understand your

testimony, you agree with that statement; is

that correct?

MR. HUFF: My testimony is more of a

question: What happens when the chloride

levels are above 500 milligrams per liter for

the sulfate standard. So substantially I do

agree with that.

MR. ETTINGER: You agree there's a

hole in the rules?

MR. HUFF: There appears to be from my

reading. Yes, sir.

MR. ETTINGER: And you make a proposal

as to how to fill that hole by what to do

when the chloride levels is over 500

milligrams per liter?

MR. HUFF: I don't believe I did for

General Use waterways. In the proposal for

UAA, there doesn't seem to be that 500

milligram per liter cap on equation. So I

would assume you would plug in the actual

chloride value as I read that now, but I'm

not clear that that's the Agency's intent.

MR. ETTINGER: I'm not asking the

L.A. REPORTING (312) 419-9292

Agency's intent. I'm asking do you think

that that is a reasonable way to solve the

gap or answer the question as to what to do

when we're over 500 milligrams per liter

chloride.

MR. FORT: I think Mr. Huff made his

suggestion on how it might apply to CITGO in

a Secondary Contact.

MR. HUFF: Would you ask your question

again, Mr. Ettinger?

MR. ETTINGER: I doubt I can get it

right.

MS. TIPSORD: Could you read back his

question.

(Record read back.)

MR. HUFF: Well, if the question is

just plugging in whatever the chloride value

is, I think there's a problem there because

of the potential toxicity of the chloride,

and, as I understand, the toxicity testing

that was done by Dr. Soucec it was capped at

500 milligrams per liter. It would seem to

me an easier way to do that is to limit the

chloride value to 500 milligrams per liter

L.A. REPORTING (312) 419-9292

when those conditions occur. So if you've

got a 600 milligrams per liter in the

receiving stream, you would plug 500 in to

determine what the sulfate water quality

standard would be.

MR. ETTINGER: I guess I'm still

confused. What if -- Unfortunately as you

said happened this winter, we have water

which has more than 500 milligrams per liter

of chloride in it, or at least that's a

reasonable thing to plan for in writing the

permit. How would you write the sulfate

standard if you had a chloride level above

500 milligrams?

MR. HUFF: I think I just answered

that. I'll try again. Whenever the chloride

levels are above 500 in the equation, to

determine the sulfate water quality standard

I would plug 500 milligrams per liter

chloride into equation. So I would not allow

you to have higher chloride levels in the

equation to determine the sulfate water

quality standard.

MEMBER RAO: Mr. Huff, I have a

L.A. REPORTING (312) 419-9292

question. Going back to this equation that

you were talking about, you mentioned in your

prefiled testimony that you got this out of

Agency's draft regulations.

MR. HUFF: The one they shared with

the Safe Coalers (ph.) earlier on, the use

attainability for the redesignation on the

Chicago waterways and the Des Plaines River.

MEMBER RAO: Is this draft regulations

voluminous set of rules? Or if it's few

pages, would it be possible for you to put

that in the record now or later in your

comments?

MR. FORT: We can share what we have,

although I think the Agency has circulated

this as a way of building a consensus, and

this is a very small piece of the whole

package. So maybe we can submit the TDS and

sulfate and chlorides piece of that, because

I think the rest of it is still being formed,

if you will.

MEMBER RAO: That would be helpful.

MS. TIPSORD: Anything else?

MR. FORT: There is one other thing

L.A. REPORTING (312) 419-9292

that perhaps would help the record here, and

I don't know if Miss Postel or Mr. Huff wants

to take this. We've been -- CITGO has been

collecting data on TDS and sulfate and

chlorides before 2007 and 2006, data that's

included in your testimony, correct? You

have those data beyond what we've presented

today?

MR. HUFF: Well --

MS. TIPSORD: We didn't hear that

answer.

MS. POSTEL: We just began collecting

TDS data from the I-55 bridge this year as

required by our variance.

MR. FORT: With respect to chlorides

you collected data before?

MS. POSTEL: We only have intake data.

MR. FORT: How would you characterize

that data for chloride levels as compared to

the data that we've seen from this past

winter? Higher? Lower?

MS. POSTEL: The data is under 500.

MS. TIPSORD: I didn't hear that.

MS. POSTEL: The effluent data is

L.A. REPORTING (312) 419-9292

showing for previous years that the chloride

data is less than 500 part per million.

MR. FORT: Thank you.

MS. TIPSORD: Part per million?

MS. POSTEL: Yes.

MS. TIPSORD: Any other questions.

MEMBER RAO: I have a clarification

for Mr. Huff. Mr. Huff, you recommend that

the Board believe that TDS water quality

standards for Secondary Contact waterways,

statewide, or if the Board is unwilling to do

that, to believe that TDS water qualities

standard as it applies to CITGO for the

Secondary Contact waters. Are you

recommending that we just believe that TDS

water quality standards and not anything

relating to the sulfates for the Secondary

Contact waterways?

MR. HUFF: Well, if you're trying to

satisfy the Agency where they want to do all

of the secondary contacts as part of the use

attainability analysis, they could do the

sulfate as part of that. So I'm open either

way. I just think that to create a comment

L.A. REPORTING (312) 419-9292

here for CITGO that's kind of the

unintentional that we have an opportunity or

the Board has an opportunity now to resolve

that problem now and the Board going through

another site-specific rule change.

MR. FORT: I think I can say that on

behalf of CITGO, we would be willing to

accept the formula for sulfates that Mr. Huff

included in his testimony.

MEMBER RAO: Okay.

MS. TIPSORD: Anything else.

MR. SOFAT: The Agency will make a

statement, if possible. We don't have any

questions, we just want to make a statement.

MS. TIPSORD: Do you want to do it now

or would you rather wait and do it when --

why don't we wait until we swear you in to

answer questions, unless --

MR. ETTINGER: I'm pleased to hear

their statement now.

MS. TIPSORD: All right. Let's swear

in the testifiers then.

(Witnesses sworn.)

MS. TIPSORD: For the record, it's

L.A. REPORTING (312) 419-9292

Mr. Mosher and Mr. Koch.

MR. MOSHER: We brought this up at the

first hearing and the Agency stated that we

have a rule/making and preparation for the

lower Des Plaines River and the Chicago

waterways which are those waters presently

designated as Secondary Contact and

Indigenous Aquatic Life Use. That rulemaking

will dramatically change the water quality

standards for those waterways. We intend to

file that rulemaking later this year, so

coming fairly quickly.

We said that we believed it

would be better to wait to include the

changes to TDS sulfate chloride for those

waters at the time we filed that rulemaking

for several reasons: There is a stakeholders

group currently meeting discussing issues,

and those stakeholders should be given the

opportunity to hear what is said about TDS

sulfate chloride for those waters that

they're interested in. We've seen today the

fact that those waters in the Chicago area,

more so than almost all other waters in the

L.A. REPORTING (312) 419-9292

state, are likely to exceed 500 milligrams

per liter chloride in the wintertime due to

road salt. So there is that extra problem to

review of what should the sulfate standard be

when chloride is greater than 500. We don't

believe that the solution is as simple as

Mr. Huff, I believe, just testified as to

just plug in 500 chloride into the equation

and use the sulfate standard that comes out

of that. We don't believe that would

necessarily be protective of aquatic life.

So it is still our preference

that the Board wait for the adoption of

different TDS, sulfate, and chloride

standards until this rulemaking comes before

it. And we believe that CITGO will have

plenty of time before their variance expires

that the Board will adopt those new rules

before that happens. If, for some reason it

doesn't happen, the Agency believes that the

Board could simply extend the variance for

CITGO until the general rulemaking for those

waters is completed. Thank you.

MS. TIPSORD: Mr. Mosher, later this

L.A. REPORTING (312) 419-9292

year. Could you be more specific? I mean if

we're talking December of this year on what

appears to be a very controversial

rulemaking, that's December 2007, at best

you're looking at maybe first note sometime

in 2008, correct? So I guess can we be more

specific than later this year? Does that

mean December? Does that mean September?

MR. MOSHER: We still have

stakeholders meetings, so I would say it

would be late in the year 2007.

MS. TIPSORD: Thank you.

MR. SOFAT: We with Toby was here.

He's the one working on that with Bob and

Brian, and they're not working on that. So

sorry we could not be more specific.

MR. ETTINGER: I want to ask you a

question. Are you aware of stakeholder

meetings in that proceeding? Because I

haven't been at them.

MR. SOFAT: Me either.

MR. ETTINGER: I thought we were done

with the stakeholder meetings in the UAA.

MR. SOFAT: I don't know.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: I don't know if I need

to be sworn, but it doesn't sound like we

have the right witness to answer your

question as to when that planning is filed.

MS. TIPSORD: And that's okay. The

Agency can address that in their comments and

give us a better idea in their comments.

Because I do think that that's important.

We're talking about what may be a

controversial rulemaking, and, you know,

we're willing to do all we can, but we also

are in the middle of doing a lot of new

cleaner act rules for boards, so.

MR. MOSHER: All I can tell you is

that Toby Frevert instructed us to say that

it would be filed in 2007.

MS. TIPSORD: And that's great.

That's -- I appreciate that. Mr. Forth?

MR. FORT: If I may, just not make a

statement, but I believe the record would

show that the variance conditions that we

have call for being in compliance with the

TDS limits by 2009, and the variance has a

series of steps before then that requires us

L.A. REPORTING (312) 419-9292

to begin construction and before that to

begin design, and effectively, I believe, we

have another six months or so before we have

to start deciding which path we're going

down. So waiting for the long promised UAA

concept package is just too long.

MS. TIPSORD: Thank you, Mr. Forth.

MR. ETTINGER: May I ask another

question of Mr. Mosher? Mr. Mosher, you

discussed the problem we have that I asked

Mr. Huff about regarding the -- what to do

when you have over 500 milligrams per liter

chloride in your statement. I believe you

suggested that the proposal Mr. Huff made was

a little too simple. Does the Agency have an

alternative proposal or is it developing an

alternative proposal as to what to deal -- to

do to deal with the over 500 milligram per

liter chloride?

MR. SOFAT: We can answer that

question or we can answer it later on when

you guys testify. We were going to make a

statement on that.

MR. ETTINGER: We'll wait and hear

L.A. REPORTING (312) 419-9292

that statement. That's fine.

MS. TIPSORD: Then with that, I think

we'll swear in Miss Collins.

(Witness sworn.)

MR. COLLINS: I am Glynnis Collins,

Watershed Scientist for Prairie Rivers

Network. Today I am presenting testimony in

the proposed modification to the Illinois

Environmental Protection Agency's proposed

water quality standard. This testimony and

proposal is being made on behalf of Prairie

Rivers Network, the Illinois Chapter of the

Sierra Club, and the Environmental Law and

Policy Center of the Midwest, ELPC. Prairie

Rivers Network, the Sierra Club, and ELPC

have numerous members in Illinois who are

concerned about water quality and protecting

aquatic life in Illinois rivers, lakes, and

streams. I have a Master's degree in

biological sciences from the University of

Southern California in Los Angeles, I worked

as an environmental scientist for the San

Francisco Bay Regional Water Quality Control

Board in Oakland California from 1998 to

L.A. REPORTING (312) 419-9292

2003, and as a visiting senior research

specialist in agriculture at the Department

of Natural Resources and Environmental

Scientists, University of Illinois in Urbana,

from 2003 to 2004. I have been a Watershed

Scientist at Prairie Rivers Network since

2005. Prairie Rivers Network, Sierra Club,

and ELPC are generally supportive of the IEPA

proposals regarding sulfate, total dissolved

solids, and mixing zones. Of course we

strongly approve of the proposal to delete

the provisions of Subtitle D which were

construed to allow mining operations to

discharge dissolved solids in concentrations

that could cause violation of water quality

standards.

We believe that scientific

work regarding the effects of dissolved

solids on aquatic life should continue even

after adoption of standard changes. We are

not convinced that Illinois standards are

fully protective of aquatic life as there are

some potentially dissolved toxics solids for

which numeric quality do not exist in the

L.A. REPORTING (312) 419-9292

Illinois standards. We are concerned about

waters with high calcium levels and we are

concerned regarding waters that have chloride

levels higher than 500 milligrams per liter.

Regarding calcium, some data

suggests that when calcium is the primary

cation in a solution, it may serve to

increase the toxicity of sulfate. We

understand that in some cases, mining

operations use calcium hydroxide in their

processing, which could result in the

presence of large amounts of calcium in

effluent. We recommend that the Agency

investigate the potential for calcium

hydroxide use to influence sulfate toxicity,

and if necessary restrict or regulate its use

in individual permits.

Turning to chloride, the data

we have reviewed showed that with chloride

concentrations higher than 25 milligrams per

liter, the toxicity of sulfate increases as

chloride bubbles increase. This relationship

holds true for chloride concentrations up to

500 milligrams per liter, the upper limit of

L.A. REPORTING (312) 419-9292

chloride concentrations in the available

experimental data. While it is true that

Illinois waters should not have chloride

levels in excess of the water quality

standard of 500 milligrams per liter, it is a

regrettable fact that many Illinois waters do

not meet these standards. The proposed rule

does not define a sulfate standard for those

waters unless hardness is greater than 500

milligrams per liter, in which case under

302.208(h)(3)(B), the sulfate standard will

be 2,000 milligrams per liter. The proposed

rule must provide an equation, numeric

standard, or procedures for site-specific

standards development covering the entire

range of possible chloride and hardness

levels in Illinois waters. The proposal as

written lacks this information for waters

with chloride concentrations over 500

milligrams per liter when hardness is less

than or equal to 500 milligrams per liter.

More critically, we believe

that the proposed changes to the mixing zone

standards in section 302.102 must be

L.A. REPORTING (312) 419-9292

clarified by the Board and that current

agency practice regarding the area and volume

in which mixing occurs must be codified by

the board so as to make the current Agent

practice fully known to the public and fully

enforceable. In particular, we propose that

the language of section 302.102(8) be changed

to state:

The area and volume in which

mixing occurs alone or in combination with

other areas and volumes of mixing must not

contain more than 25 percent of the

cross-sectional area or volume of flow of the

stream, except for those streams where the

dilution ratio is less than 3 to 1. In

streams where the dilution ratio is less than

3 to 1, other than streams that have a zero

flow for at least seven consecutive days

recurring on average in nine years out of

ten, the volume in which mixing occurs alone

or in combination with other volumes of

mixing, must not contain more than 50 percent

of the volume flow.

This proposal does not change

L.A. REPORTING (312) 419-9292

the first sentence of the current rule and

accepts the change proposed by IEPA to delete

the second sentence of the current rule. Our

proposed second sentence clarifies and

specifies what dilution ratio is required

when the dilution ratio is less than 3 to 1

and the stream is not among those streams

that the proposal would regulate under

302.102(b(6). We believe this is critical.

Currently, the standard simply

does not say what is to happen when there is

less than 3 to 1 dilution available but does

provide that the discharge must meet water

quality standards at the end of the pipe if

the discharge is made to zero 7q10 streams.

As stated by the Agency in its

hearing -- in the hearing held March 7, the

Agency has generally adopted a practice of

requiring that mixing occur in no more than

50 percent of the flow in such cases.

Although we have misgivings about this

practice, we are willing to accept its

continuation. This practice must, though, be

spelled out in the standard, particularly as

L.A. REPORTING (312) 419-9292

the proposed deletion of the current second

sentence of 302.102(8) will allow mixing in

waters providing less than 3 to 1 dilution to

occur more frequently.

Our proposal deliberately

allows an exception for the streams that

frequently have zero flow that are covered by

the Agency's proposed changes to section

302.102(6) and, thus, should allow the mine

discharges to very low flow streams that are

contemplated by the Agency proposal.

Our proposal closes a lacuna

the current standard that is already

unfortunate and that would be magnified in

importance by the Agency proposal if it is

adopted without our proposed language.

I want to stress that there is

a great difference between most zero 7q10

streams that have no flow for a seven-day

period once in ten years and the small

subsets of those streams that have zero flow

for seven executive days in nine out of ten.

Many of the former waters have flow almost

all of the time. These smaller but

L.A. REPORTING (312) 419-9292

significant streams play a critical role in

determining water quality, flow

characteristics, and the health of aquatic

life both locally and downstream. Protection

of the ecological functions and water quality

and flood mitigation services they provide is

essential to overall protection of waters of

the state.

Thank you for your

consideration of these comments.

MS. TIPSORD: Thank you, Miss Collins.

Just as a point of clarification, in your

testimony you referred to 302.102(8) and

302.102(6). You mean 302.102(B)8 and (B)6,

correct?

MR. COLLINS: Yes.

MS. TIPSORD: Thank you. Are there

any questions of Miss Collins?

MEMBER LIU: Good morning,

Miss Collins. Thank you for your testimony.

There are a couple of places where you refer

to data, and I was wondering if you could

provide some citations to that data.

MR. COLLINS: I may have to provide --

L.A. REPORTING (312) 419-9292

I can provide full ones, I guess, in writing

after today.

MEMBER LIU: That would be helpful.

MR. COLLINS: I'd be happy to do that.

MS. TIPSORD: Anything else?

MEMBER RAO: I had a clarification.

Miss Collins, you made a recommendation to

the Agency to investigate further the effect

of calcium in the streams. And is this

something that you want the Agency to

investigate and get back to during this

rulemaking?

MR. COLLINS: Not necessarily. I

think it would be reasonable for it to be

addressed possibly through monitoring

requirements and individual permits, and then

be determined whether or not the larger

policy needs to be in place or -- we really

don't have any idea whether it's a problem or

not. It's just at this point a potential --

MEMBER RAO: I guess I'm just getting

a clarification. Thanks.

MS. TIPSORD: Anything else for

Miss Collins? The Agency has a statement?

L.A. REPORTING (312) 419-9292

MR. SOFAT: Yes. Bob?

MR. MOSHER: I'd like to just address

a couple items: One is the calcium hydroxide

item. Calcium hydroxide or sodium hydroxide

and any number of other additives at mines

are controlled by the Agency's NPDES permit.

And if a mine wanted to use calcium hydroxide

for that pH neutralization purpose or

whatever purpose, the Agency has the option

to ask the mine to provide information on

what that might do to toxicity or what

alternatives might exist. So we would have

that opportunity, as we do routinely, for

additives used at any kind of facility

discharging. A new mine would also be

subject to antidegradation review, and we

could ask a mine -- if the mine said we are

going to use calcium hydroxide in our

process, we could ask them to review

alternatives and tell us if there isn't

something better that could be used for that

same purpose. So we think we do have that

issue under control of controlling calcium

ions as much as possible at mines.

L.A. REPORTING (312) 419-9292

I'd also like to make a

comment about the proposed change that

Glynnis mentioned to the mixing zone

regulation involving what proportion of

dilution is allowed when the dilution ratio

is less than 3 to 1. The Agency has been

able to deal with that regulation well, I

believe, all these years that we've had that

on the books. We've made some decisions to

allow 50 percent mixing when dilution ratio

is less than 3 to 1. But as I said at the

first hearing, we would like to keep those

options open and look at cases individually.

I can think of reasons that we might want to

sometimes allow less than 50 percent and

sometimes allow a bit more than 50 percent

depending on the condition. Of course, we

always want to make sure aquatic life is

protected whenever we grant an allowed mixing

or a mixing zone or a ZID. And I can

envision a situation, let's say a discharger

needed 51 percent mixing and they had an

untreatable component of their effluent,

needed that much to meet water quality

L.A. REPORTING (312) 419-9292

standards, and that discharger provided a

vital function or service for society. I

think the Agency would want the option to

allow 51 percent mixing. So we'd like to

keep that the way it is.

What's also missing, I think,

from Glynnis's proposal is any scientific

basis that 50 percent has to be that maximum

limit. Why, again, couldn't it be more than

50 percent. What reasoning could be offered

to establish that what you're proposing is

the ideal and correct thing to do. We know

that's difficult, and that's why we think our

site-specific approach is probably the best

way to go. And I believe we're finished.

Thank you.

MS. TIPSORD: With that then, I think

we're ready --

MR. ETTINGER: I'm sorry. I had two

questions. Maybe I didn't hear the answer.

I thought you were going to address the

other -- the chloride issue as to what to do

with 500 milligrams chloride.

And then I have a couple of

L.A. REPORTING (312) 419-9292

questions regarding the Agency procedure.

MR. MOSHER: Okay. Our chloride

standard for General Use waters is 500

milligrams per liter. We believe that is a

good protective standard. We believe that

when waters exceed 500, that's probably bad

for aquatic life. There's probably some

sensitive species of aquatic life that would

suffer when that condition happens.

Therefore, we do not like the fact that some

of our waters do exceed 500. That's a bad

thing for the environment. We work to try to

alleviate that condition from occurring, and

there are TMDL studies out there that have --

that will be done on waters that exceed 500

milligrams per chloride. The TMDL program is

what the Agency does to try to fix problems.

We're very cautious about proposing a rule

for sulfate linked as it is to chloride that

would ever imply that the level of 500 --

over 500 milligrams per liter of chloride is

somehow okay and that somehow we can derive a

protective sulfate standard using those

equations. So our intention was to not

L.A. REPORTING (312) 419-9292

propose that. To say at 500 chloride -- I'm

sorry -- greater than 500 chloride, there is

no sulfate standard proposed in this

rulemaking. I don't know that we were

exactly precise in our language. It may need

to be fixed a bit, but that was our

intention, to never imply that it was okay to

have greater than 500 chloride.

So as time goes on, and

especially in light of the UAA that we're

doing on the Chicago waterways and the

rulemaking that we will have sometime this

year proposed for the Chicago waterways,

lower Des Plaines River, we may come upon a

solution to that dilemma. But as for right

now, we do not intend to not for General Use

to have a sulfate standard derivable for

those high chloride situations.

MS. TIPSORD: Go ahead.

MR. ETTINGER: Okay. I guess my first

question is there are waters that we agree do

have more than 500 milligrams per liter of

chloride right now, and they're not only the

waters that are subject to the UAA which

L.A. REPORTING (312) 419-9292

we've looked at around the state; is that

correct?

MR. MOSHER: That's correct. I looked

at Agency Ambient Water Quality Monitoring

Network data, and it's fairly rare to have

chloride over 500 and have sulfate also

pushing the upper level. I found one

instance that that means one sample that the

Agency took where chloride was above 500 and

sulfate was also elevated. So other than the

Chicago waterways, lower Des Plaines River,

we think it's going to be a rare event that

we'll have that to face. And our intention

is to look at it again site specifically. If

there's a permit downstate somewhere that has

to have a sulfate limit determined when

chloride is greater than 500, we're just

going to have to sit down and figure

something out.

MR. ETTINGER: So you wouldn't have a

water quality standard as such for that rare

situation. You would just go to a tier 2

test or something like that where you would

work out individual numbers?

L.A. REPORTING (312) 419-9292

MR. MOSHER: I look at it as a

potential permitting issue. If some new

discharger like a mine wants to locate in an

area where chloride in the stream is over

500, that's the case where we may want to say

since we don't know what sulfate is

appropriate at this time, maybe that's not a

good place to locate a mine; maybe you should

look elsewhere for the receiving water for a

new type of discharge. I think on a strictly

water quality standards basis where you're

just going out, there is no facility, but

you're just going out and sampling the stream

and you find chlorides above 500, well, you

wouldn't be able to determine what the

sulfate standard was. But you do know that

there's a problem with that stream that needs

attention. It's violating the chloride water

quality standard. Something is wrong,

something needs to be taken care of.

MR. ETTINGER: Getting back to the

mixing zone rule, my first question would be

are you aware of any scientific basis that

the Board uses when they set the 25 percent

L.A. REPORTING (312) 419-9292

number for the 3 to 1 ratio situation.

MR. MOSHER: No. I am not aware of

the scientific basis. I'm aware that back in

the early '70s that was a very common zone of

passage decision that many states chose to

say that when the dilution ratio is such we

want 75 percent of the stream to be

unaffected by the mixing zone. So I don't

know how they arrived at that, but I do know

that that was a common choice.

MR. ETTINGER: And in the situation in

which there is less than 3 to 1 dilution, now

using a 50 percent number is a common Agency

choice.

MR. MOSHER: Yes.

MR. ETTINGER: Okay. Thank you.

MS. TIPSORD: Anything further?

Mr. Forth?

MR. FORT: Mr. Mosher, I think I heard

the testimony, your testimony accurately or

your statement accurately, but let me try to

recast it a little bit. The point here on

the formula for sulfates is that you don't

want to be appearing to endorse a sulfate

L.A. REPORTING (312) 419-9292

number when you have chloride values in the

stream over 500. Is that a fair way of

summarizing your position?

MR. MOSHER: Yes.

MR. FORT: Thank you.

CHAIRMAN GIRARD: Then I guess we're

ready from the Coal Association and

Mr. Gonet. Could you introduce your --

MR. GONET: Yes. I have with me Jim

Boswell who is a manager of a hydrology at

Peabody Energy.

MS. TIPSORD: Mr. Boswell, could we

have you both sworn in, please.

(Witness sworn.)

MR. GONET: Thank you. My name is Phi

Gonet. I'm the president of the Illinois

Coal Association. The following comments are

directed toward the Illinois Environmental

Protection Agency's IEPA proposed sulfate

standard and the corresponding documentation:

Preliminary Technical Justification For

Changing Water Quality Standards For Sulfate,

Total Dissolved Solids and Mixing Zones, and

Concept Document Regarding Proposed

L.A. REPORTING (312) 419-9292

Regulatory Amendments For Sulfate, TDS, and

Mixing Standards. While the proposed changes

provide for a much more reasonable and

scientific approach than currently exists as

will be noted, there are still some areas

that should be addressed.

Illinois EPA has stated

publically that no harmful environmental

effects are occurring as a result of modern

mines in the State of Illinois. Studies that

specifically targeted the effects of coal

mines on aquatic life have shown healthy

macroinvertebrate communities existing

downstream of mine discharges. (Soucec 2004

and Illinois EPA 2004). Sulfate is not a

conventional toxic chemical as compared to

heavy metals, pesticides, or volatile organic

compounds. Conversely, sulfate is a

necessary nutrient for the normal functioning

of cells and both plants and animals benefit

from its availability. For vegetation,

sulfate salts are essential to cation

delivery and sulfur increases the protein

content of the plant which are reasons that

L.A. REPORTING (312) 419-9292

sulfate is commonly found in fertilizers. In

animals, chondroitin, sulfate, and

glucosamine sulfate are beneficial to the

longevity and functioning of joints.

Overall, the beneficial characteristics of

sulfate and the fact that the U.S.

Environmental Protection Agency, U.S. EPA,

has no parallel standard, question the

reasoning for imposing a sulfate standard

altogether. Nonetheless, the following

comments are directed towards the sulfate

standard as it is proposed.

The proposed standard is based

on the hardness and chloride concentrations

downstream of the effluent. The equations

used to derive a sulfate standard result in

daily maximum concentrations between 500

milligrams per liter and 2600 milligrams per

liter. There are many coal mine effluent

concentrations that regularly exceed these

concentrations of sulfate. As identified in

the State of Illinois 2005 economic impact

analysis, a system designed to achieve a

2,000 milligram per liter effluent limit

L.A. REPORTING (312) 419-9292

using excess lime and hydrochloric acid would

have annualized operating cost of $542,000

and an annualized capital cast of $471,500

for every 100 acres of drainage resulting in

a total cost of $10,953,000 projected over a

10-year period. (ICC I2005). This will

discourage potential and existing mine

operators from mining or remining in Illinois

due to the high cost that is associated with

this and alternative methods of treatment,

e.g. pipelines.

The consequences of

implementing the proposed sulfate standard

will directly affect the coal mining

industry. The development of the proposed

sulfate standard was contrary to the U.S. EPA

guidelines which state, "The development of

such standards and limitations, however,

might have to take into account such

additional factors as social, legal,

economic, and hydrological considerations.

The environmental and analytical chemistry of

the material, the extrapolation from

laboratory data to field situations, and

L.A. REPORTING (312) 419-9292

relationships between species for which data

are variable and species in the body of water

of concern (U.S. EPA 1985).

The Illinois EPA does not

account for the social and economic impacts

that would result from the loss of jobs and

state income that the coal mining industry

provides to Illinois. With regard to the

proposed monthly average sulfate limit of

2,000 milligrams per liter, a review of

literature regarding the effects and

tolerance of livestock from drinking water

containing sulfate indicate that while

short-term laxative responses may occur, a

suggested safe tolerance limit can be up to

2,500 milligrams per liter sulfate without

long-term effects (Digesti and Weeth, 1976;

Louper and Waldner, 2002; Embry, et al, 1959;

Anderson and Stothers, 1978; Patterson, et

al, 1979; Gomez, et al., 1995).

A specific tolerance level

higher than 2,500 milligrams per liter is

dependent upon individual metabolic rates and

total water intake factors. These studies

L.A. REPORTING (312) 419-9292

that indicate long-term effects may occur.

Excuse me. Let me restate that.

There are studies that

indicate long-term effects may occur. These

studies are inconclusive to the appropriate

sulfate concentration that causes long-term

effects and conflict with a study that showed

no adverse effect at a sulfate concentration

of 7,000 milligrams per liter. However, none

of these studies cited lasting impacts at

sulfate concentrations below 3,000 milligrams

per liter (Patterson, et al, 2005; Zimmerman,

et al, 2002; Weeth and Hunter, 1971; Embry,

et al, 1959).

The data on effects of

drinking water sulfate concentration on

livestock support a level of 2500 milligrams

per liter sulfate with no long-term effects

or loss of performance. Therefore, the

existing monthly average sulfate limit for

livestock watering of 2,000 milligrams per

liter should be changed to a recommended

upper sulfate limit of 2500 milligrams per

liter. The monthly maximum sulfate standard

L.A. REPORTING (312) 419-9292

is being applied to all discharges into

waters of the state. There are numerous

cases where the discharge will be episodic

and result only as a consequence of

precipitation events. The sulfate derivation

method used by the Illinois EPA was based on

a 96-hour toxicity test whereas episodic flow

as a result of a precipitation event is often

of shorter duration than 96 hours. The

conclusions drawn from the 96-hour toxicity

test will not be applicable to flows that

result in shorter exposure periods to the

aquatic organisms. Similarly, many smaller

order-receiving streams only flow as a result

of storm water run-off and in these cases

aquatic life is probably not present in the

receiving stream. Imposing a standard for a

designated use that does not exist in the

receiving stream is erroneous in itself.

Alternatively. The sulfate standard and/or

mixing calculation should be imposed only on

receiving streams which warrant an aquatic

life designated use.

The sulfate aquatic life water

L.A. REPORTING (312) 419-9292

quality standard proposed by Illinois EPA is

based on data from recent studies that found

associations between the chloride

concentrations and hardness of water and the

osmotic imbalance toxic effect on aquatic

organisms from sulfate. The data used to

establish the Illinois proposed sulfate water

quality standard were based on two test

species that are commonly used for laboratory

toxicity testing. The two species,

Ceriodaphnia, (water flea), and Hyalella,

(scud) were also selected because these

organisms were known to be less tolerant,

more sensitive to sulfate exposure than other

tested aquatic biota including fish, clams,

mussels, and other benthic

macroinvertebrates. These two species do not

necessarily inhabit every type of Illinois

surface water, but are historically used by

U.S. EPA to derive water quality criteria.

However, the U.S. EPA protocols used to

derive water quality criteria recommend a

toxicity data for aquatic biota from eight

different taxonomic families be generated

L.A. REPORTING (312) 419-9292

from which toxicity data for the most

sensitive four to five organisms are most

often used to derive the water quality

criteria. Use of the two organisms most

sensitive to sulfate in the derivation of an

Illinois water quality standard for sulfate

while a policy decision at the time of

consideration provides a higher margin of

safety to accommodate resident aquatic biota

in lakes an streams than would otherwise be

provided using EPA methods. While the

inclusion of additional species will not

likely alter the slope of the equation, the

intercept point of the regression would

increase and result in less stringent

numerical standards for the same hardness and

chloride characteristics than the current

equation provides.

In certain cases, H.

Azteca has been found by the Illinois EPA

monitoring network in waters with sulfate

concentrations above 2,000 milligrams per

liter and in waters with low chloride

concentrations, both of which were identified

L.A. REPORTING (312) 419-9292

as waters that H. azteca would be intolerant

of. The fact that H azteca is found in

natural waters with sulfate and chloride

levels that contradict those determined to be

toxic through the development process

questions the application of the standards as

proposed at these sites.

Another issue with the

proposed standard involves the range of

values over which it has -- over which it is

valid. The proposed standard provides

equations based on hardness and chloride when

hardness is between 100 and 500 milligrams

per liter and chloride is between 5 and 500

milligrams per liter. If these ranges are

exceeded, the sulfate standard is limited to

2,000 milligrams per liter. However, if

hardness were set to 500 milligrams per liter

and chloride varied between 5 and 500

milligrams per liter, the range of return

values for the sulfate standard is between

2,020 and 2,720 milligrams per liter. Once

the range is exceeded, however, the standard

is reduced to 2,000 milligrams per liter.

L.A. REPORTING (312) 419-9292

This arbitrary reduction in the sulfate limit

when the range of values is exceeded is

unsupported. Instead, the sulfate levels

should be set equal to the limit obtained

directly prior to exceeding the range.

In addition to the proposed

sulfate standard, there are proposed changes

to the mixing zone methodology. The changes

will directly affect the dilution ratio that

is used in mixing zone calculations. The

dilution ratio that a mixing zone is allotted

is based on the 7Q1.1 flow of the receiving

stream, which is the low flow statistic that

is being used to describe "small headwater

streams." There are several methods of

calculating the 7Q1.1 value on receiving

streams at a point of discharge. It is

suggested that the regulation allow for use

of the method that best fits the particular

watershed situation.

Lastly, if this standard is

adopted as proposed, it will be applied

retroactively, meaning it will be applied to

all NPDES permit holders disregarding when

L.A. REPORTING (312) 419-9292

the permit was originally obtained. This

policy presents a barrier to all active and

future holders of NPDES permits in the State

of Illinois. When an operation is in its

initial planning stage, there is no

reasonable way to account for the costs

associated with future regulations. On the

contrary, the success of the business must be

based on the cost of complying with present

rules and regulations. Expecting a business

to achieve standards retroactively that were

not and could not be accounted for in the

original operational plan is unjustified.

That concludes our comments.

MS. TIPSORD: Did you get a copy of

that to the court reporter?

MR. GONET: I can get one.

MS. TIPSORD: She'll need it for the

spellings and stuff. Are there any questions

or did you have something additional,

Mr. Boswell?

MR. BOSWELL: No.

CHAIRMAN GIRARD: Any questions?

MR. ETTINGER: Yes, I have a question.

L.A. REPORTING (312) 419-9292

First, I've just got, what was on the

electronic filing of the board? I was

wondering, was there anything else filed by

the --

MR. GONET: No.

MR. ETTINGER: In your third paragraph

of your first page, you refer to a study of

the State of Illinois 2005 economic impact

analysis. Who did that study?

MR. GONET: It was a study that was

done for the Illinois Clean Coal Institute,

and I believe it was done by -- Was that

Advent? The Advent Group, yes.

MR. ETTINGER: Is that in the record

anywhere?

MR. BOSWELL: No. And that's probably

my fault. We could have -- We can submit it

for the record now or after this meeting. I

believe Illinois EPA is also aware of this

study, but we hadn't submitted it for

testimony.

MS. TIPSORD: If you have a copy of it

now, we'll go ahead and submit it to the

record now as an exhibit.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: A number of my

questions are just going to be where did this

come from and things like that, so that --

then in next paragraph --

MS. TIPSORD: Wait. If we're going

to -- I need to do the mechanics. I've been

handed "Determination of Economic Impact of

Changing Water Quality Standards For Sulfate

on Coal Mines; Final Technical Report May 1,

2004 through April 30, 2005." I'll mark this

as Exhibit 2, if there is no objection.

Seeing none, it's Exhibit 2. Okay. Go

ahead.

MR. ETTINGER: Is that Robin Garabi

(ph.) who prepared that report?

MS. TIPSORD: Clinical investigators

are John S. Meede. Other investigators are

M-E-IN-T-O-L-T-H-A-F, and project manager

with Joseph C. Hershey.

MR. GONET: I don't believe that she

was a principal investigator in that.

MR. ETTINGER: Okay. Were you

involved in the discussions at Region 5 that

led to the development of this standard?

L.A. REPORTING (312) 419-9292

MR. GONET: I had started the Illinois

Coal Association October 2003, and the

process had already started. So I kind of

picked up from there. But I was involved

with discussions with Region 5, yes.

MR. ETTINGER: Are you aware of

Mr. Fry, Eric Fry's participation in those

discussions?

MR. GONET: Yes, I was.

MR. ETTINGER: Did Mr. Fry tell you

that the rule that was adopted was in

violation of the U.S. EPA protocols?

MR. GONET: Well, that's an issue in

this whole rulemaking. I'm not sure whether

he told me or it became part of the

information that I obtained since I came on

board the association.

MR. ETTINGER: Okay. Are you aware of

who participated in the development of this

standard at Region 5?

MR. GONET: Some of the people, yes.

I mean I was not involved in the meetings as

closely as Mr. Fry and others were. And

Mr. Boswell here works with Mr. Fry.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: Do you know whether the

Coal Association ever voiced a position

during those meetings that the standards --

that the criteria being proposed violated the

U.S. EPA protocols.

MR. GONET: I think -- Well, I'm not

going to speak for Mr. Fry. I don't know if,

Mr. Boswell, if you participated, if you want

to --

MR. BOSWELL: Yeah. I believe what's

being said here is that it's not a direct

violation of the protocols, but the protocol

does state that additional factors may need

to be taken into account, and those factors

are social, legal, economic considerations

extrapolation from laboratory data to field

situations. And we're not sure that those

were adequately addressed in the development

and implementation of this standard if it

goes as proposed.

MR. ETTINGER: Now, again, it raises

another question. You cite U.S. EPA 1985.

Is that the second edition of the water

quality standards handbook you're talking

L.A. REPORTING (312) 419-9292

about?

MR. BOSWELL: Yes. I believe that's

deriving -- I have a copy of that with me,

too. Derivation of Water Quality Criteria --

MR. ETTINGER: I guess we better --

Could you please state for the record exactly

what document it is? Unfortunately or

fortunately EPA put out a lot of documents in

1985.

MR. BOSWELL: The Guidelines For

Deriving Numerical National Water Quality

Criteria For the Protection of Aquatic

Organisms and Their Uses. And there's a

document No. PB85-227049.

MR. ETTINGER: Can I just see that?

MS. TIPSORD: Given the shortness of

that, would it be possible to get a copy of

that for the record as well?

MR. BOSWELL: Yes. I can give you --

MR. MOSHER: It's already in the

record.

MS. TIPSORD: It is? I'm sorry. And

what exhibit is it to the proposal? Let's

identify it.

L.A. REPORTING (312) 419-9292

MEMBER RAO: L.

MS. TIPSORD: It's Exhibit L to the

proposal. Thank you.

MR. ETTINGER: Are you aware of

whether Mr. Stevens, who is one of the

authors of that document, participated in the

setting of the criteria that's being proposed

here?

MR. GONET: I believe his name is

Stefan, and I think he did.

MR. ETTINGER: On the second page of

your testimony, you refer to studies, quote,

"Studies by Patterson, Zimmerman, Weeth and

Hunter and Embry." Is there a complete cite

of those or do you have copies of those

documents you can put in the record so we can

find them?

MR. BOSWELL: I do not currently

have -- I don't have copies with me. I have

their full cites, and I can get those out of

his testimony.

MS. TIPSORD: How voluminous are

those? I mean we would ideally like to have

them for the record, if that's possible.

L.A. REPORTING (312) 419-9292

MR. BOSWELL: I can do that, too.

They are -- They're short, ten pages or less

most of them.

MS. TIPSORD: Great. If you can

submit those for the record.

MR. ETTINGER: Now, looking through

the third page of your testimony, it says at

the top here, it says, "Use of the two

organisms most sensitive to sulfate in the

derivation of the Illinois water quality

standard for sulfate while a policy decision

at the time of consideration provides a

higher margin of safety to accommodate

resident aquatic biota in lakes and streams

than would otherwise be provided by U.S." --

I'm sorry -- "provided using EPA methods."

Is it the position of the Coal

Association that the proposed criteria

violates U.S. EPA methods?

MR. GONET: I don't think I'm saying

that, no. We're saying that the organisms

that are used are the most sensitive which

would probably give more protection to

aquatic life. I think what we're saying is

L.A. REPORTING (312) 419-9292

that other organisms that are -- that would

produce a less-sensitive or higher sulfate

level could be used. I think we're just

making a general statement.

MR. ETTINGER: Do you understand how

the U.S. EPA criteria document uses the

relative sensitivity of the test organisms to

shape the criteria?

MR. BOSWELL: To a degree, but most --

we had an aquatic biologist look at the

method that was used, and that was with

Advent. He was not able to be here today. I

can get any questions directed at the biology

to him and we can get those answered.

MR. ETTINGER: Okay. Now, looking at

the third paragraph of this, I guess it's --

The second paragraph starting, and it's the

last sentence, it talks about the hardness

values and what happens when the hardness is

over 500. I want to make sure I understand

your proposal. The paragraph includes this

arbitrary reduction in the sulfate limit when

the range of values is exceeded is

unsupported. Instead, the sulfate limit

L.A. REPORTING (312) 419-9292

should be set equal to the limit obtained

directly prior to exceeding the range. Could

you explain that a little better as to what

your proposal is?

MR. BOSWELL: Yes. When you have --

When you set hardness equal to 500 and you

vary chlorides, you end up with sulfate

concentrations between 2720 and 2,020. The

minute that hardness is above 500, the

standard -- the language states that your

standard will be 2,000. So we're saying that

reduction was made arbitrarily. There is no

evidence to suggest that it should be 2,000.

We don't have toxicity data greater than

hardness of 500. So we were saying that if

you're at a hardness of 500, your standard is

2720. If hardness is greater than 500, it

should also be 2720 for varying chloride

concentration.

MR. ETTINGER: So if hardness is 500

or more, then the standard should be 2720?

MR. BOSWELL: Whatever the standard is

calculated at a hardness of 500. It depends

on your chloride value. So if at a hardness

L.A. REPORTING (312) 419-9292

of 500 your chloride value tells you that

it's supposed to be 2,020, we're saying that

the standard, that hardness is greater than

500 should also be 2,020.

MR. ETTINGER: What's the number then?

2020 or 27 something?

MR. BOSWELL: It depends on the

chloride concentration.

MR. ETTINGER: So depending on

chloride, according to the chart I'm looking

at, which is from part of the package, I

believe. It's a chart that was used on

chloride versus hardness. Do you know what

document this is, Sanjay? Is this -- this is

part of our package.

MR. SOFAT: It's attachment 1. It's

part of the record so that document is part

of the record.

MR. ETTINGER: And I think it's

referred to in the first paragraph of their

testimony, Preliminary Technical

Justification. As I understand it looking it

I chart --

MS. TIPSORD: We need to clarify what

L.A. REPORTING (312) 419-9292

that chart is.

MR. KOCH: The chart is Exhibit V.

MS. TIPSORD: B as in boy?

MR. KOCH: V.

MS. TIPSORD: V as in victory.

MR. ETTINGER: So your proposal then

is that if hardness is over 500, the numbers

should be basically the 500 column in that

Exhibit V?

MR. BOSWELL: Yes.

MR. ETTINGER: Based on whatever the

chloride is?

MR. BOSWELL: Yes. And currently it's

reduced to 2,000. We're saying they should

be equal to that.

MR. ETTINGER: Wherever the chloride

number leads you.

MR. BOSWELL: Yes.

MR. ETTINGER: Thank you. And the

second to last paragraph of the testimony, it

says, "There are several methods of

calculating the 7Q1.1 value on receiving

streams at a point of discharge." What other

methods are there, or could you tell us what

L.A. REPORTING (312) 419-9292

methods there are for calculating.

MR. BOSWELL: Most of the methods will

need to use daily flow data on your receiving

stream or representative stream. One of the

problems that you'll have in Illinois is that

USGS sites that have daily data are not on

that restraint. So a lot of times you have

to use representative watersheds, you can use

watershed models which there are studies that

the Illinois Water Survey has done using

statistical models for watersheds to identify

what your 7Q1.1 is at the point of discharge.

There's different flow distributions for your

receiving stream, and depending on where

you're at in the state, you're going to have

different flow characteristics. There's

variations in hydrology and precipitation and

the geology that may lend to one method being

better than another method.

MR. ETTINGER: Just tell me about who

else has methods other than USGS that we can

refer to or that we would have the Agency

look to.

MR. BOSWELL: Even the USGS I think

L.A. REPORTING (312) 419-9292

has done -- has calculated 7Q10s using

various methods. 7Q1.1s aren't really looked

at very often, if ever. I'm not aware of any

studies that specifically did a 7Q1.1, but

that's how we're -- or EPA is proposing to

address small head water streams. So there

aren't very many current methods of 7Q1.1

determination. It would essentially follow

what they use for 7Q10s.

MEMBER RAO: May I ask a follow-up?

MS. TIPSORD: Sure.

MEMBER RAO: The rules as proposed, do

you think they limit you in terms of how you

calculate 7Q1.1 by specifying, you know, a

specific method.

MR. BOSWELL: No. There is no method

specified, and we were kind of looking for

clarification as to what methods could be

used or will be used in the permitting

process.

MEMBER RAO: So you want some methods

described in the rules as to how you go

about --

MR. BOSWELL: Not necessarily in the

L.A. REPORTING (312) 419-9292

rule, no. But we would like to know if

valid -- if there's a valid method that you

can propose during a permitting process, will

that be accepted or what will be acceptable?

MR. GONET: The last line of that

paragraph says, "It is suggested that the

regulation allow for use of the method that

best fits the particular watershed

situation," and I think we're looking for

some flexibility or allowing Illinois EPA to

find that method that best fits.

MEMBER RAO: So you're not looking for

any specific rule language in here to allow

the --

MR. GONET: No.

MR. BOSWELL: No.

MR. ETTINGER: I have a couple of

general questions about coal mining. Do coal

mines have dry weather discharges typically

in Illinois?

MR. BOSWELL: Not typically, no. But

there may be cases where you would have a dry

weather discharge, especially remining

operations or something where you're at an

L.A. REPORTING (312) 419-9292

AML site or previously-mined site that has

high spoils, it may have continuous

discharge, and that's one of the issues that

we raise in these situations. Remining would

most likely benefit that site; however, if

you have a continuous discharge and you can't

meet the standard, the operation will not be

remining that land and there won't be

additional reclamation to it. It will remain

as it is.

MR. ETTINGER: You have situations in

which we have mines that get ground water in

them that has to be pumped out on a continual

basis.

MR. BOSWELL: Traditionally I think

most discharges occur as a result of

precipitation alone. There may be situations

where water is pumped. And depending on the

site-specific conditions, it may or may not

discharge during dry weather. I can't say

specifically.

MR. ETTINGER: Is it your

understanding that the way that the -- I'm

sorry. Is it your understanding that the way

L.A. REPORTING (312) 419-9292

that IEPA is now handling coal mining permits

is to generally limit discharges to periods

in which -- during precipitation?

MR. BOSWELL: During precipitation

events, I believe the proposed standard will

allow mixing; during dry weather events, if

you have a discharge, the way I understand

it, you meet the standard at the end pipe.

MR. ETTINGER: Unless there's dilution

based on the --

MR. BOSWELL: Precipitation.

MR. ETTINGER: I'm sorry. Unless

there's dilution based on the 7Q10 flow of

the stream.

MR. BOSWELL: Or a 7Q1.1, yeah.

MR. ETTINGER: Okay.

MS. TIPSORD: Go ahead, Mr. Rao.

MEMBER RAO: I have one question

regarding a statement you made on Page 1 of

your pre-filed testimony. It's in the third

paragraph where you say, "There are many coal

mine effluent concentrations that regularly

exceed the concentrations for sulfate." Do

you believe that these coal mine discharges

L.A. REPORTING (312) 419-9292

that exceed these sulfate, proposed sulfate

standards, whether they would be required to

install systems designed to achieve 2,000

milligrams per liter, especially considering

the amendments the Agency has proposed for

the mixing rules?

MR. GONET: We think that the proposed

rule would discharge during precipitation

events would allow for the operation of those

mines.

MEMBER RAO: So the economic impact

numbers that are included in your comments or

your testimony, are they relevant?

MR. BOSWELL: I believe they are.

There may be situations where mixing is not

granted, in which case active treatment may

be an option. That's an option with these

costs that is not viable for a coal mine.

MR. GONET: And this rule is not

final.

MEMBER RAO: No. We are talking about

what's being proposed. Under the proposed

rule is what I'm asking.

MR. GONET: I think we've presented

L.A. REPORTING (312) 419-9292

that report as an alternative; that if more

stringent sulfate limits are proposed, the

impact it would have on the coal mining

industry. But we believe that the proposal

before the Board, we believe that that

proposal allows us the proper mixing and

provides adequate protection to the streams.

MEMBER RAO: Okay.

MS. TIPSORD: Anything else? Thank

you very much. And if you can get us that

additional information, we'd appreciate it.

Thank you.

This moves us on to -- There

were a few questions prefiled by the

environmental groups to the Agency, and let's

go to those answers which the Agency filed on

Friday.

MR. ETTINGER: If the Agency wishes to

elaborate on its answers, it's fine; or if

you want to have them read, it's fine, too,

but we're happy with them just being filed as

answers.

MS. TIPSORD: For purposes of the

record, let's go ahead and have them read in.

L.A. REPORTING (312) 419-9292

MR. MOSHER: Are you going to read the

question?

MS. TIPSORD: I was going to say, why

don't you go ahead, Mr. Mosher. You have

them already laid out?

MR. MOSHER: I'll have to borrow

someone's copy of the questions.

MR. ETTINGER: Actually, I'm the only

one with a copy here.

The Agency staff has referred

to the concept of, quote, effluent treatment

ditches, end quote, with regard to discharges

from mining areas. Are these considered

treatment works under 35 IAC 301.415?

MR. MOSHER: Yes. These "effluent

treatment ditches" are considered treatment

works under Section 301.415 of the Board

regulations.

MR. ETTINGER: Please describe the

criteria used to determine whether a channel

receiving discharge from a mining area is

considered an effluent treatment ditch rather

than receiving water for the purposes of

NPDES permitting.

L.A. REPORTING (312) 419-9292

MR. MOSHER: Pursuant to 35 Illinois

Administrative Code 301.415, channels dug to

convey effluents are considered treatment

works. However, natural water courses are

waters of the state pursuant to Section

301.440 of the Board's regulations. Thus, a

natural water course receiving a discharge is

the receiving water for that discharge.

MR. ETTINGER: Do these criteria for

waterways receiving a discharge from a mining

area differ from those used in permitting

other types of facilities?

MR. MOSHER: No. The criteria for

waterways receiving a discharge from a mining

area do not differ from those used in

permitting other types of facilities.

MR. ETTINGER: Are these criteria for

waterways receiving a discharge from a mining

area expected to change at all as a result of

this rulemaking?

MR. MOSHER: No. The criteria for

waterways receiving a discharge from a mining

area is not expected to change as a result of

this rulemaking.

L.A. REPORTING (312) 419-9292

MS. TIPSORD: Thank you. Are there

any other questions for the Agency or other

people who testified today? Okay. Let's go

off the record for just a moment.

(Off the record.)

MS. TIPSORD: Back on the record.

Having gone off the record to discuss a

comment, end comment date a post-hearing

comment date. That date is June 7. I will

issue a hearing officer order clarifying that

as well. This transcript is due in in about

10 working days, because it's not an

expedited transcript. So that's about 30

days after when this would be due in. I want

to thank everyone today. I got some good

comments, and we look forward to taking all

of this under advisement.

Dr. Girard, do you have

anything?

CHAIRMAN GIRARD: No. Thank you for

the comments and testimony, and we look

forward to getting all your final paperwork

in and hopefully we can move forward with a

decision. Thank you.

L.A. REPORTING (312) 419-9292

MS. TIPSORD: And thank you all for

your courtesy and your helpfulness. It's

been appreciated, and we'll keep working on

this. Thank you very much. We're adjourned.

(Which were all the

proceedings had.)

* * * * * *

L.A. REPORTING (312) 419-9292

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF COOK )

I, LAURA BERNAR, being a Certified

5 Shorthand Reporter doing business in the City of Des

6 Plaines, Illinois, County of Cook, certify that I

7 reported in shorthand the proceedings had at the

8 foregoing hearing of the above-entitled cause. And

9 I certify that the foregoing is a true and correct

10 transcript of all my shorthand notes so taken as

11 aforesaid and contains all the proceedings had at

12 the said meeting of the above-entitled cause.

___________________________

LAURA BERNAR, CSR

CSR NO. 084-003592

L.A. REPORTING (312) 419-9292