HEARING OFFICER ORDER
lllinois-American Water Company (IAWe)
1. Quantifying and Verifying Sediment Reductions
QUESTIONS:
QUESTIONS:
2. illinois Water Quality Trading Policy
3. USEPA Water Quality Trading Policy
QUESTIONS:

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PROPOSED EXTENSION OF ADJUSTED

STANDARD APPLICABLE TO

ILLINOIS-AMERICAN WATER COMPANY'S

ALTON PUBLIC WATER SUPPLY FACILITY

DISCHARGE TO THE MISSISSIPPI RIVER

UNDER 35 ILL. ADM. CODE 304.124

AND 304.106

AS 07-2

(Adjusted Standard)

Deposition of SCOTT A. TOMKINS, taken at the

instance of the Peti ti one r, before Dorothy J. Hart,

CSR, RPR, and Notary Publ i c, on the 16th day of

August, 2007, at the hour of 9:00 a.m., at 1021 North

Grand Avenue East, spri ngfi el d, III i noi s.

CAPITOL REPORTING SERVICE, INC.

2021

Timberbrook Drive

springfield, Illinois

62702

217-787-6167

Electronic Filing, Received, Clerk's Office, August 30, 2007

APPEARANCES:

BLACKWELL SANDERS,

BY:

MR. BRADLEY S. HILES

Attorney at Law

720 Olive street

suite 2400

St. Loui s, Mi ssouri 63101

on behalf of the petitioner;

MR. SANJAY SOFAT

Assistant counsel

Division of Legal counsel

Illinois Environmental protection Agency

1021 North Grand Avenue East

springfield, Illinois 62794

on behalf of the IEPA.

ALSO PRESENT:

MS. AMY WALKENBACH

INDEX

WI Ti'J.E:..S.2.

Scott A. Tomkins

Direct Examination by Mr. Hiles

EXHIBITS

Deposition Exhibit No.1

Deposition Exhibit No.2

Deposition Exhibit No.3

Deposition Exhibit NO.4

J.DENTIFIEj2

SCOTT A. TOMKINS

having been duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. HILES:

Please state your name and spell it for the

record.

Sure.

T-o-m-k-i-n-s.

Scott, s-c-o-t-t, A. Tomki ns,

Where do you live, Mr. Tomkins?

I live at 6292 Westwind Drive, springfield,

Illinois.

where are you employed?

I'm employed with the Illinois Environmental

protection Agency.

What is your job title there?

I'm environmental protection specialist.

When did you begin working at the Agency?

March of 1992.

What jobs have you held at the Agency Slnce

starti ng the re?

I worked in the standards Unit and I'm

working principally in the watershed Management

Section, Nonpoint Source pollution Unit.

I'd like you to take us through your post

high school education.

I don't need precise dates but

glve me

Sure.

-- years of degrees and graduations.

university of Dubuque, Dubuque, Iowa, three

years, then MacMurray college in Jacksonville,

Illinois, for one year.

I have a bachelor of science

degree in biology, minor environmental science.

Was that from MacMurray?

MacMurray college, correct.

Any postgraduate education?

No.

How about education through the Agency,

through programs provided or supplied by the Agency?

I have taken some courses concerning computer

Nonpoint source pollution

pollution unit.

-- Unit?

Correct.

When did you begin working in that unit?

In 1997.

So for about ten years now?

Correct.

and writing skills.

okay.

But nothing directed at nonpoint

source work?

NO.

very good.

I'd like you to describe your job

responsibilities as an environmental protection

specialist in the Nonpoint Source pollution Unit.

Sure.

My primary job is contract

administrator of Section 319 Clean Water Act projects.

That's my primary job.

What do you do 1n carrying out that job?

I review section 319 application packages

each year, also draft financial assistance agreements,

and then I administrate those financial assistance

agreements.

what 1S your role on behalf of the Agency

with respect to the Piasa creek Watershed project?

What do you mean by -- clarify role.

well, I'd like you to describe your duties

and responsibilities with respect to that project.

What I was assigned to in 2001 by Rick

Mollohan, who was the previous unit supervisor for

Nonpoint Source pollution unit, was to be involved

with observing, meeting with Great Lakes Land Trust,

and reviewing documents.

Documents from who?

Documents from Great Rivers Land Trust as

required in the NPDES permit.

I think the first time you mentioned that

entity you may have called it Great Lakes Land Trust.

GRLT.

very

good.

I may occasionally refer to it as

very

good.

By the way, I want to ask you -- and you've done

it already, which is great -- if any question I ask is

not clear to you, will you please --

Sure.

-- pause and just tell me that?

sure.

And I'll try to rephrase the question.

Otherwise, I'll assume that you understand the

question, unless your answer 1S maybe not connected to

the question. Then we'll circle back around --

okay.

-- and make sure we're on the same page.

Sure.

Ve ry good.

Thank you.

Have you had your deposition taken before?

No, I haven't.

well, a few warni ngs.

I al ready gave you the

first one about clarity of questions. You do have to

give an audible response to every question.

So a head

nod won't do it.

Even if the answer is yes, you can't

just shake your head yes.

You have to say yes.

okay.

very good.

Have others assisted you 1n your

work with the Great Rivers Land Trust with respect to

the piasa creek Watershed project?

What do you mean by assist?

I'm talking about others with the Agency 1n

connection with the duties that you've described, such

as obse rvi ng the proj ects, meeti ng wi th GRL T

officials, and reviewing documents.

Have other people

within the Agency assisted you?

The only assistance that I'm aware of is

communications with my supervisors what we're doing.

okay.

But I have strictly met with Great Rivers

Land Trust either by myself or in association with

like a watershed tour, where fellow unit staff and

interns have participated in that.

I understand.

DO you consider yourself to be

the Agency's primary contact person with the Piasa

creek watershed project?

For the watershed planning portion of it.

Q .

All ri ght.

Now, what do you unde rstand to be

the watershed planning portion of the Piasa Creek

watershed project?

Nonregulatory aspects, discussions about the

watershed plan and that implementation.

What other aspects of the piasa creek

watershed project do you understand to exist other

than the watershed portion?

Can you define aspects?

well, I

I'm looking for you to define it,

because really what I'm looking for here, scott, is

just kind of the array of work that you do with the

piasa creek watershed project, and then your

understanding of any other aspects of the project that

Electronic Filing, Received, Clerk's Office, August 30, 2007

may be covered or addressed by other Agency

representatives. why don't we start with just

Sure.

what you do.

In case you haven't fully

fleshed out for us what you do --

-- I want to glve you this opportunity to

explain in greater detail what you do with respect to

the piasa creek watershed project.

Sure.

I have met with them.

I have been

about the geomorphic inventory assessment that was

done, the five-year review package that Great Rivers

Land Trust put together, and then the watershed plan

and all the components of that.

Now, what does that leave that others at

Illinois EPA have covered besides yourself?

It leaves the regulatory permit section.

All right.

You don't get involved in

permitting?

NO, I don't get involved with decisions with

the permitting.

Now, when we -- when you talk about decisions

with permitting, are you referring actually to

with them for watershed tours.

Sure.

I have discussed items

Electronic Filing, Received, Clerk's Office, August 30, 2007

Illinois-American water company's permit or do permits

apply to the Piasa creek watershed project as well?

I'm only aware of one NPDES permit that

Right.

Alton

plant.

For the

Alton plant.

okay.

Correct.

okay.

understand.

very good.

I'd

1 i ke to

focus on a time in either 1999 or 2000, Scott.

applies to the Piasa creek and that's with

Illinois-American.

I'm

not sure exactly when this began, but there was a

point in time officials from Illinois EPA worked with

officials from the Illinois-American Water company to

establish sort of a baseline or an estimate of the

total suspended solids that were expected to be

discharged from the Alton plant.

Are you aware of

that?

I was not involved with this project at that

time.

Great.

You just anticipated my question.

when did you start to become involved?

March of 2001.

And what happened then that linked you to the

Piasa creek project?

I was given it to me by Rick Mollohan to

as a part of the Nonpoint Source pollution unit.

very good.

Once you began and after you

began, did you do any kind of critical analysis of the

estimate, the TSS loading estimate from the Alton

plant?

The only involvement I've had with that is

the watershed plan implementation stated the methods

of determining sediment savings.

okay.

So you've looked at it then on the

savings side.

Correct.

And not on the side of the anticipated TSS

discharge from the plant?

Correct.

I have not looked at it from any of

the effluent or influent portion of it.

very good.

Are you aware that the estimate

established at the outset of the piasa Creek watershed

project, the estimate for TSS loading from the plant

was approximately 3,300 tons per year?

Define what you mean when that figure was

given.

well, I believe that figure was given prlor

to March of 2001, prlor to your involvement.

But have

you done any critical analysis of that figure Slnce

your involvement?

NO.

The only thing that I've seen with

savings is the amount that the Great Rivers Land Trust

reports.

very good.

what has been your role, if any,

in selecting specific projects for the piasa creek

watershed project?

The role for selection has been the Great

Rivers Land Trust.

They have just informed me and

kept me informed of that work.

Once you have been informed by the Great

Rivers Land Trust of a new project, did you perform

any kind of critical review of that project?

NO.

Did anyone in the Agency perform a critical

review to your knowledge?

Not that I'm aware of.

Have you ever approved projects proposed by

the Great Rivers Land Trust?

No.

Have you ever supplied comments on projects

proposed by the Great Rivers Land Trust?

The only comments I've supplied 1S with the

watershed plan implementation itself.

Now, when a new project was proposed to you,

did you do anything to look into that project and

determine how it might function?

What do you mean with function?

well, how the soil savings would be achieved

as proposed by Great Rivers Land Trust.

The way that was informed to me by Great

Rivers Land Trust is they have a working contract with

local soil and water Conservation Districts --

inspections.

SO you didn't perform any kind of critical

reV1ew then of the design --

NO.

-- or installation?

Have you performed any critical reV1ew of

inspections of projects once implemented?

I have observed practices, but I have not

inspected them.

To your knowledge do your super10rs at the

Agency approve projects or comment upon them?

okay.

-- that will do the design, installation, and

Not that I'm aware of.

Have you ever supplied comments to Great

Rivers Land Trust regarding the effectiveness of any

particular project they propose to be implemented or

that they have implemented?

could you repeat that again?

Have you ever supplied comments to Great

Rivers Land Trust representatives concerning projects

they propose to implement or projects they have

implemented?

Technical or nontechnical?

Let's start with technical.

No.

HOW about nontechnical?

General comments of it may be a good project.

All right.

Just general feedback like that.

I understand.

How frequently since

Slnce

you began -- strike that.

since you began working with the Great Rivers

Land Trust folks in March of 2001, how frequently have

you physically gone to the Piasa creek watershed in

connection with the actual Piasa Creek Watershed

project?

DO you mean -- to clarify that, do you mean

at the office, in the watershed, or what do you mean

that question?

I mean any kind of professional role that

you've filled that relates to that watershed project,

whether it's in the office or out in the field.

So you're wanting to know how many times that

I've associated with them or met with them.

Correct.

Ten times.

I see that you're referring to a document

there.

Does that document -- is that sort of a log of

your visits?

Yes.

I wonder if you'd please just run through for

the record, and feel free to refer to that document if

you'd like, and describe what you did during those ten

visits.

The first visit was March of 2001.

It was

the first basic meeting that we had.

It was Alley

Ringhausen, Mark Johnson, and myself.

The second one was June 29th of '04, and I think

that referred to the annual meeting that's required in

the NPDE5 permits.

I have down Novembe r 30th of '05.

What was the purpose of that visit?

visit, when was that?

The fifth visit was october 18th of '06, and

that was meeting with them to discuss the watershed

process and implementation of the best management

practices.

What did you do at that meeting?

Discussed the project. Alley presented what

they're doing, what they're meeting, what they

anticipated for meeting.

What was the next visit?

The next vi si twas Apri 18th of 2005, and to

my understanding it was the same type of annual

meeting that is required.

And did you do the same type of work at that

visit as you did at the second visit?

Yes.

They might have -- at that point we

might have went out to look at some of the practices

in the watershed at that point.

When did you meet with them for the fourth

time?

The same, annual.

Annual meeti ng, all ri ght.

And the fifth

okay.

Let's talk some more about those

discussions.

Tell us as much as you can recall

regarding that fifth meeting.

Just basic information on what Great Rivers

Land Trust is doing with the watershed implementation

plan.

You mentioned best management practices.

Correct.

Did you in fact perform any kind of critical

reVlew of the activities of Great Rivers Land Trust to

determine if they were indeed following best

management practices?

what do you mean by critical review?

well, in your position with the Nonpoint

Source pollution unit, did you examine the practices

of Great Rivers Land Trust to conclude that they

either were or were not meeting BMP?

I have done visual observations.

And you did that to determine whether they

were ln fact meeting best management practices?

I was there to basically observe what

practices were being installed.

Did you conclude at that time that they were

installing best management practices?

Yes.

Have you ever concluded that Great Rivers

Land Trust was not following BMP with respect to the

projects at the piasa creek Watershed project?

Can you define not following?

well, I'm going to have to ask you to do

that, sir, because it's -- I don't know technically

what you might have been thinking, but I'm just trying

to find out if you've ever concluded that the

practices of the Great Rivers Land Trust at the piasa

Creek watershed project failed to be best management

practices.

No,

I never determined that they failed to be

best management practices.

Did you ever tell Alley Ringhausen or anyone

else at Great Rivers Land Trust that you felt that

they were following best management practices?

I told them that they were following the

implementation plan, the watershed implementation

plan.

If that's what you mean by best management

practices.

well, in your oplnlon did following the

watershed implementation plan constitute best

management practices?

They were involved at the watershed

management plan, yes.

BMP was involved 1n it?

Yes.

very good.

To your knowledge has anyone else

at the Agency ever examined the work of Great Rivers

Land Trust in connection with the Piasa creek

watershed project and performed any critical review of

that work?

The other staff

No.

Not to my knowledge.

observed, like I did.

what other staff has observed the Piasa creek

watershed project?

A fellow worker.

Do I glve her name?

okay.

Barb Lieberoff.

She also 1S 1n my unit.

What has Barb observed?

The best management practices in the

watershed tours that were given.

And how many times has she been to the piasa

creek watershed?

Twice.

Anyone else?

The Governor Environmental corps interns.

They're summer college students.

Anyone else?

NO.

Let's go back to your visits to the piasa

Creek watershed.

I think we're through visit number

five.

when did you visit the sixth time and what did

you do during that visit?

It was the Piasa Creek watershed tour June

14th, 2002.

oh, okay.

So the first five you've told me

about were actual meetings.

Correct.

nlne altogether.

Ve ry good.

There were five meetings and three watershed

tours that I attended.

okay. well, let's look at the sixth --

Sure.

visit.

okay.

There were -- I'm sorry, there were

And now you're goi ng to tell me about fou r

visits?

Three water --

Three visits?

Three watershed tours.

I'm sorry.

Correct.

I'm with you.

I'm not doing the math

correctly.

That's fine.

I might have stated ten, but

when I looked back, it was only nine.

Let's talk about that first tour that you had

then ln 2002.

Sure.

What occurred at that time?

We met at Lewis and clark community college.

There were Great Rivers Land Trust staff there,

Illinois-American Water company staff, myself, and

there might have been some either board members or

general public.

okay. What occurred during that visit?

Basically we got into a school bus.

It was

not air-conditioned.

oh-oh.

And took us around to various sites of the

best management practices ln the watershed.

very good.

Tell me about your second tour.

Sure.

second tour was June 25th of 2003, and

we met at the office -- Great Rivers Land Trust

Doing it agaln.

Let me see if I'm clear on the last meeting.

you would feel free again to refer to your notes,

office.

Met with Alley Ringhausen.

It was myself,

Barb Lieberoff from our Agency, and I can't remember

how many interns were with us at that point.

What occurred?

Basically, Alley gave us a little

introduction of the project itself, then we went out

and observed some of the BMPS installed in the

watershed.

All right.

When was the next tour?

The next tour was July 20th of '05, and it

was very similar to what would happen -- what we did

in the previous tour, but this time Illinois-American

Water company staff was involved, and there could have

been some representatives from the board of Great

Rivers Land Trust also participated in this. And it

was a general information watershed tour also.

And finally, the last tour, when did that

occur and what happened?

That was the three tours that I was involved

with.

okay.

BOY, I'm doing it agaln.

Aren't I?

Scott, when did the last meeting occur?

The last meeting with Great Rivers Land Trust

was october 18th of 2006.

would you explain what occurred at that

meeting?

I met with Alley Ringhausen.

He gave me an

update of what's happening in the watershed

implementation plan.

He gave me a tour of the

different practices, such as the Boy Scout lake

project, which was their big project.

We ate lunch

and I came back to springfield.

During that meeting with Alley Ringhausen,

did he

did the two of you discuss the progress of

the piasa creek watershed project at the five-year

mark?

NO.

Have you ever discussed with Mr. Ringhausen

the five-year progress?

He gave me at the second watershed tour Great

Lakes -- I'm sorry, there we go again -- Great

Rivers', GRLT, summary.

It was a binder that included

these elements.

okay.

When was that meeting?

That was handed to me at the second watershed

tour, June 25th -- I'm sorry.

NO.

I correct myself.

That was during the third tour.

Third tour, all right.

Right.

And when did the third tour occur?

I have 7/20/05.

Because this document was

produced, according to what I see, March of 2004.

why don't we go ahead and have this marked as

an exhibit, please. call it Exhibit 1.

(Deposition Exhibit Number 1 marked for

identification.)

I'll hand Exhibit 1 back to you.

I'd like

you to just describe for the record really the full

contents of what Mr. Ringhausen gave you at that tour

on July 20th of 2005.

Are you asking about the tour itself or about

this review package?

Let's focus on the review package.

I assume

you've just given us the table of contents --

Correct.

-- to a larger document.

Correct.

Describe the larger document, please.

Sure.

The larger document basically has the

table of contents which is involved.

If you want me

to describe all that, that's all in --

well, let's see if we can't find a shortcut

here.

Are you saying that he provided you with the

piasa creek Watershed project report dated March 2004?

Correct.

very good.

So what we have marked as Exhibit

1 is just a -- one of the tables of contents to that

report, is that correct?

Correct.

This is the primary one. This 1S

just a summary table.

very good. All right.

I'll give that back

to you.

Except I'm -- the court reporter is going to

need to keep Exhibit 1.

Thank you.

Have you ever heard the term uncertainty

discount?

No.

You're hearing it for the first time today?

Correct.

MR. HILES:

would you please mark this as

Deposition Exhibit 2.

(Deposition Exhibit Number 2 marked for

identification.)

I'm handing you a document marked Defendant's

Deposition Exhibit 2.

This is a recent order of the

hearing officer ln our adjusted standard case, Scott.

moment to look it over.

Yes.

And I'm gOlng to just ask you to take a

I'll give you time if needed

to read the whole thing, but I have a simple question

today?

Yes.

When did

you fi r s t see

it?

Last

Friday.

What were

the

circumstances

of you

seelng

at the outset.

Have you seen this document before

that document for the first time?

I was asked to address questions a, b on page

Have you reviewed at all the questions that

are found prior to page 8?

I have looked through, but I haven't in

detai 1 revi ewed.

Have you supplied any information to the

Agency with respect to the questions which precede

page 8?

In what terms? can you restate the question

again?

MR. HILES:

would you please read back the

questi on?

your employer.

Staff?

Yes.

to Agency staff?

I spoke to them about the educational

outreaches.

There have been educational outreaches.

Yes.

Haven't there?

Yes, yes.

Verbal comment.

comment upon?

okay.

which questions did you supply a

Question 3a.

Is that on page 3?

Correct.

What was your comment on question 3a?

Define -- can you say that again?

What was your comment on question 3a provided

(The reporter read the last question.)

Could you define Agency?

Illinois Environmental Protection Agency,

verbal

Did you speak with them concerning habitat

restoration?

So you commented to someone on the Agency

staff about stream stabilization?

Correct.

That that has been an accomplishment at the

piasa creek Watershed project?

The discussions went back to the geomorphic

inventory that addresses the 30 transections or

cross-sections of the stream that was used.

Scott?

That that was used to determine stream -- how

did I -- stream -- it's not bed mode, but the

substance on the stream that 1S being measured when

they did the cross-sections.

very good.

And who did you talk to about

educational outreach?

My superv1sor.

Anyone else?

Not that time.

who did you talk to about habitat

restoration?

Stream stabilization.

okay.

what specifically was your comment,

My supervlsor.

I don't understand the link, by the way, of

the geomorphic study to habitat restoration. could

you explain that?

inventory assessment that was done in 2002 by Shannon

& wilson on behalf of the Great Rivers Land Trust.

What they did is they went out and conducted 30

cross-sections across the stream at various points ln

the watershed, established a monument.

And the intent

-- my understanding of the intent is to measure stream

channel movements, composition, vegetation, so they

can come back in further years and use that as a

baseline.

Did you provide comments to any other Agency

staff with respect to question 3a on page 3 other than

the ones you've just told us about?

Repeat that question again and define it.

Did you provide any other comments with

respect to question 3a on page 3 of the order other

than the comments you've just told us about?

To my knowledge that was the basic

discussions.

very good.

Sure.

The geomorphic assessment was an

I'd like you to now look at the

MR. HILES:

Sure.

Let's go off the record.

(Discussion off the record.)

You've just taken some time to review the

hearing officer's order. And again I'll return to the

question, and that is which of the questions in that

order, other than 3a on page 3 and the questions on

page 8, have you examined and discussed with Agency

staff?

I have discussed 2c.

For now let's just go through and identify

them.

2c is the first one. What other questions?

rest of this order, Scott. And again my question is

going to be, prior to the questions on page 8, have

you addressed any of the questions with Agency staff?

Can you clarify if this was on Friday?

Really, what I'm interested in knowing 1S

from the time this order was issued, which was Monday,

the 8th of August, have you discussed any of these

questions with Agency staff other than question 3a on

page 3 and the questions which appear on page 8?

MR. SOFAT:

Scott, do you need time to go

through this?

Yes.

MR. SOFAT:

Can

we just glve him time?

5 and the paragraphs on the top of page 8.

Let's go back to 2c.

what have you discussed

with Agency staff with respect to question 2c?

What we discussed was that we were not aware

of the Illinois state Water survey's -- well, let me

think a minute, please.

I was not aware of any direct

Illinois State Water survey's involvement with the

BMPS in Great Rivers Land Trust watershed

implementation plan.

Has the Illinois State Water survey been

involved in the BMPs?

The only knowledge I have 1S they've been

involved at the beginning of this when -- back in 2000

with the adjusted standards request.

who did you discuss this with at the Agency?

supervisor and -- my superv1sor.

Just with your supervisor?

with the aspect of Illinois State water

involvement I've talked to legal people about that,

too, legal section.

Have you talked to anyone at the Illinois

State Water Survey about that?

If I did, it was very informal, short

discussions.

what did you discuss with your supervisor?

I just discussed that Illinois State Water

survey wasn't to my knowledge involved with the BMP

designs or implementation.

Did she tell you that the Illinois State

Water survey should have been involved with the BMPS7

No.

Did she have anything critical to say about

the Illinois State Water survey's lack of involvement

with the BMPs?

NO.

SO have you just told us the essence of your

discussion with your supervisor

Correct.

-- concerning question 2c?

Correct.

very good.

And then I think you said the

other question was question number 5, which really

kind of rolls into the questions on page 8, does it

not?

Correct.

Q .

All ri ght.

Before we get to questi on 5, I

want to go back to some other issues.

Have you ever advised representatives of Great

Rivers Land Trust that they should be discounting in

any way the amount of soil saved in the projects they

were implementing at the Piasa creek watershed

project?

Can you define discounting?

well, let's back up a little bit. Do you

agree with me that on a quarterly basis Great Rivers

Land Trust issues a report examining all of the

projects implemented at the Piasa creek watershed

project?

The quarterly reports I recelve from Great

Rivers Land Trust informed of the projects.

And the information contained in those

reports includes information of soil saved on an

annual basis relayed in tons, is that correct?

Some have, but not all of them.

Q .

All ri ght.

For those whe re tons of soi 1

saved have been reported, have you ever concluded that

there should be some discounting of the tons of soil

saved?

No.

Have you ever concluded that Great Rivers

Land Trust might be exaggerating the estimated tons of

soi 1 saved?

NO.

Have

you

ever

had discussions with others at

the Agency to the effect that Great Rivers Land Trust

might be exaggerating the tons of soil

saved?

The only discussions I had is the method that

they're determining the sediment reduction.

SO you

have

not had discussions with others

at the Agency concerning some sort of discounting

factor, is that correct?

That's correct.

TO your knowledge has anyone at the Agency

concluded that Great Rivers Land Trust should be

discounting the estimated tons of soil

saved

in the

projects at the Piasa creek watershed project?

No, I'm not aware of that.

Are you familiar with EPA's final policy on

water quality trading?

No, I'm not.

Have

you

eve

r read it?

what specific document are you talking about?

I'm going to show you a document -- we won't

have

it marked as an exhibit -- and the heading 1S

united States Environmental protection Agency, Office

of water, water Quality Trading policy, dated January

13th,2003.

Have you ever read that policy before?

I have not read through that policy.

prior to issuing a final policy, the one that

I've just shown you, EPA issued a draft policy in the

1990s.

Have you ever read the EPA draft policy?

Do you have a certain date or a certain

document number to that?

I do.

I'm gOlng to show you, without

marking, a document that was published in the Federal

Regi ste r in May of 1996, and it's enti tl ed Draft

Framework for watershed-Based Trading.

DO you recall

having read that document?

Actually, there are many coples ln there if you

want to just take the one off the top.

okay.

No.

May I have that back, pl ease?

Thank you.

Are you familiar with an equation

developed by the united States Department of

Agriculture known as the Revised universal Soil LOSS

Equation?

Yes.

when did you become familiar with that?

We use that in section 319 BMP workbook to

Sure.

estimate pollutant loading reductions with our Section

319 projects.

Rather than read the name of that equation

each time, I'm just gOlng to refer to it as RUSLE.

RUSLE.

Good.

That's better yet.

Do you work with RUSLE on a regular basis?

I work with RUSLE within an Excel spreadsheet

that does calculations using RUSLE.

SO you work with it on the calculation side?

Correct.

Have you ever examined the inputs that go

into or that went into the preparing of the RUSLE

equation?

I have knowledge of their using like soil

slope, climate data, different elements like that.

Do you know if RUSLE is used to calculate

soil savings at the piasa creek watershed project?

They have stated that in the watershed

management section -- or, watershed implementation

plan that RUSLE and universal soil Loss Equation is

used.

Do you believe that RUSLE and universal Soil

Loss Equation are appropriate for calculating soil

savings at the Piasa creek watershed project?

Yes.

Do you consider RUSLE to incorporate

discounting factors to account for uncertainty?

I'm not aware of those.

So they may incorporate discounting factors

and you just don't know?

The understanding I have with RUSLE

concerning how they use it with United States

Department of Agriculture NRCS, I'm not aware of any

discounting.

Have you ever heard the term retirement

credits used in connection with nonpoint source TSS

trading?

No.

Have you ever heard the term retirement

discount used in connection with nonpoint source TSS

trading?

NO.

Do you have an understanding of either term,

retirement credits or retirement discounts?

I do not know the definition to those.

TO your knowledge has anyone ln the Agency

ever suggested to Great Rivers Land Trust that

retirement credits or retirement discounts ought to be

applied to TSS tonnage saved?

Not to my knowledge.

The same question with respect to

Illinois-American Water company.

Let me just restate the question.

please do.

To your knowledge has anyone at the Agency

suggested to Illinois-American Water company that

retirement credits or retirement discounts ought to be

applied to tons of TSS saved at the Piasa creek

watershed project?

Not to my knowledge.

Let's turn now to Exhibit 2 again, scott, and

to that question S, which is on the next to the last

page. I believe you testified earlier that this 1S

the one question that you were asked to provide

specific input on here at the Agency.

IS that

correct?

Sa, correct.

But not Sb?

Sb also, too, correct.

Let's start with Sa.

Has the Agency made a

determination of effectiveness?

Not to my knowledge.

why not?

TO my understanding, that 1S the permit

Section's responsibility.

DO you know why the Permit Section did not

make a determination of effectiveness?

Did you urge them to make a determination of

effectiveness?

provided a memo to them November 25th,

2005, overviewing the project.

DO you have a copy of that memo with you

today?

MR. SOFAT:

No, just to talk about this Sa

and b that you're talking about.

Or do you want to be

the record? That's fine, too.

MR. HILES:

Let's stay on the record.

MR. SOFAT:

okay.

We are gOlng to submit our

responses on the 21st.

I can understand you want to

know the essence of discussion and stuff.

I don't

have a problem.

But I still haven't, you know,

prepared the responses to these for the Board.

NO, I don't.

MR. SOFAT:

MR. HILES:

Brad, can we stop here?

Just to take a break?

And that was November 5, did you say, of

I understand.

Inte rna 1 memo.

MR. HILES:

Correct.

20057

I'm sorry, November 21st.

MR. HILES:

while you look through your

documents, I'm going to ask the court reporter to mark

this, please, as Exhibit 3.

(Deposition Exhibit Number 3 marked for

identification.)

Yes, I have it in front of me.

I'm going to hand you a document marked

Deposition Exhibit 3. And I think what I'll have you

MR. SOFAT:

So I think anything less than

showing everything, I think I'm okay with that, but I

think if you're -- it's in the process of preparation

is what I'm saying.

MR. HILES:

well, let me continue to explore

with this witness his inputs on these two questions.

MR. SOFAT:

okay.

Yeah.

I don't have a

problem with the essence of what happened.

Scott, let's turn again to the -- I believe

you said memo that you provided to the permitting

section.

do is compare Deposition Exhibit 3 with the document

that you have just located in your files and tell me

if these are the same documents.

MR. HILES:

Now, I would like to also have

the court reporter mark your document, please, as

Deposition Exhibit 4.

(Deposition Exhibit Number 4 marked for

identification.)

Q .

All ri ght.

I'm handi ng you r document now

marked Deposition Exhibit 4 back to you and r've put

it side by side with Deposition Exhibit 3. It does

appear to me that there's a notation on Deposition

Exhibit 4 that does not appear on Deposition Exhibit

3. It's in the upper right-hand corner, not the

extreme upper right-hand corner, but it's in all

capitals and it's underscored, and it says: "Illinois

EPA 5-Year Review Memo."

DO you see that?

Correct.

NOW, that doesn't appear on 3.

Is there

anything else in Exhibit 4 that does not appear on 3?

Take all the time you need to review it.

That's the only difference I can see, also.

Thank you.

when, if you know, was thi s added

Yes, they are. Yes, it is.

designation put on the document that we see here as

Deposition Exhibit 4?

I do not know that.

Did you put it on there?

No, I didn't.

Do you know who put it on there?

No, I do not know the pe rson that put that on

there.

these to be a determination of effectiveness?

No.

why not?

I consider this document to be an overview of

the project's compliance with the NPDES permit

condition.

which is why you gave it to the permit

Section?

Correct.

Did you consider the project to be in

compliance with the NPDES permit held by the Alton

plant of Illinois-American Water company?

Yes, I put that in my conclusions.

very good.

How did you come to prepare this?

What prompted you to do it?

Exhibit 3 and Exhibit 4, do you consider

I was contacted by Illinois-American water

company about their provision and renewal of their

permit.

who contacted you from the water company?

Tim -- I

I can't pronounce his last

Genz or -- I have to review my notes to get the

correct spelling of his last name. Tim G-a-n-z.

Tim Ganz.

very good.

what did Mr. Ganz tell you that

prompted you to prepare the memo?

He did not tell me to prepare the memo.

was inquiring information about the renewal process.

I understand.

And what was it about that

inquiry that prompted you then to prepare the memo?

Blaine Kinsley, K-i-n-s-l-e-y --

Yes.

-- from the Permit section requested me to

prepare this memo for him.

Did you supply any other information to

Mr. Kinsley in connection with Mr. Ganz's inquiry?

No other written.

Let's take a look, pl ease, at the second page

of the memo, Table 1.

Ganz, correct.

up-to-date when this memo was prepared in 2005?

It was a table that was available with the

Great Rivers Land Trust Web site that I used and just

took it off the web site.

All right.

I see in Table 1 that you

actually cite to that web site and cite specifically

to the report of January 2002.

Correct.

Did you search for more updated information

at that time?

On the web site.

only on the web site?

Correct.

Was there, 1n fact, more acres benefited as

of the time you prepared this memo, November 21 of

2005, than the acres that are reflected here 1n Table

Yes.

The conclusions on Table 1, were those

What I have 1n front of me 1S a spreadsheet

that the Great Rivers Land Trust used to document in

years increment the landowners involved, what phase,

detention basins, talking about the different best

management practices, cost involved, cost per ton,

government cost. It's basically just a basic

spreadsheet.

I'm familiar with that spreadsheet.

You're familiar with this spreadsheet?

I'm just not sure why you put it in front of

you and why you're 1 ooki ng at it ri ght now.

why don't

you tell us that?

Sure.

The date on this spreadsheet was

wednesday, October 18th, 2006.

Ve ry good.

There is information on that up to 2006, but

I did not have this in my possession when I created

the memo.

I understand.

will you agree with me that

the acres benefited as of November 21, 2005, was

greater than the acres benefited as reflected in Table

1 of your memo?

According to the spreadsheet, ln 2005 --

well, as of 2004 it says 2,623 acres.

Let's go to tons of soil saved.

okay.

And what I'm looking for, Scott, is just a

total figure of the tons of soil saved, if you can

find that, as of November 21,2005, from all sources,

whether it's gully erosion or streambank erOSlon.

okay.

And if you need to glve it to me ln pleces,

I'll write them down and we'll add them up.

okay.

I will give you years, each year on

thi s sheet.

very good.

And you can add it up.

As of completed projects 2001, soil saved 556

tons.

Year 2004 --

I have that.

Please continue.

2003, 932 tons.

I'm sorry.

AS of 2004, 2,164 tons.

Did you skip over 2003?

completed projects as of 2002, soil savings

Yes.

That's okay.

932

tons.

MR. SOFAT:

Can you repeat that?

932, 2,164, and 478? Those are the numbers?

2005, 478.

Tons of soi 1 saved?

2,164 tons.

And I do not know an aspect of 2005 when this was

exactly calculated.

Do you have numbers on that spreadsheet from

2005?

Am I off by -- is it 556, 932,

sanjay, are you doing the same

Those are the numbers I have.

It just says summary of year completed

MR.

HILES:

MR.

SOFAT:

Correct.

MR.

HILES:

I do.

drill?

Do you want me to repeat it again?

MR.

SOFAT:

No, it's okay.

Thank you.

I think we both wrote down the same numbers,

Scott. NOW it's just a matter of whether we can

arrive at the same total.

I'm going to add these up.

You'll have to

glve me a minute, though.

Hold on.

Adding up the figures that you have glven me from

2001 through 2005 the total I arrived at was 5,062

tons.

okay.

I think we can agree that the number

1S over 5,000 tons.

Scott, have you ever supplied a

figure to the permitting section that is an

all-inclusive figure through 2005 that is a figure 1n

excess of 5,000 tons?

NO.

I apologize if I've asked this question

before, but to your knowledge has the permitting

section performed a determination of effectiveness?

Not to my knowledge.

Let's go back to the hearing officer's order

on the last page, please. And I'd like to direct your

attenti on, Scott, to the second full paragraph set

forth in quotation marks near the top of page 8.

you see that paragraph?

Yes, I do.

After the three-dot ellipsis, the wording 1S

as follows:

"In addition to the fifth year review,

the Agency will continue to be involved in the site

selection process for the various aspects of the

project

Has

the Agency continued to be involved in the

site selection process for the various aspects of the

MR. SOFAT:

I'm getting 5,162.

project?

I was never directly involved with site

selection process.

I just reviewed what methods and

what approaches that was used to then.

To your knowledge as anyone else at the

Agency been involved in the site selection process?

Not to my knowledge.

Let's go to the rest of that sentence.

Have

you or to your knowledge anyone else at the Agency

helped review and implement management practices?

I have observed and I have received

information about the practices.

Do you believe that constitutes the review

and implementation of management practices?

How do you define review and implementation?

I'm just having to ask you to define that for

me because this is a directive to the Agency, Scott,

and so I'm asking for your interpretation of this

right now.

Like I formerly stated, the design,

implementation, and inspection was through contracts

with Great Rivers Land Trust with Soil and Water

Conservation Districts.

I understand that.

But my question to you

1S, have you or others at the Agency helped review and

implement those management practices?

I have seen those practices.

practices?

Define reV1ew.

Again, I'm going to have to just ask for your

definition of it, Scott.

I have seen those practices through the

quarterly reports and the information provided me

through Great Rivers Land Trust.

Do you consider that to be a reV1ew of the

management practices?

I consider that to be review if they're

implementing the watershed management plan.

And to your knowledge were they implementing

the watershed management plan?

TO my knowledge.

And again, continuing on that same quoted

paragraph on page 8, have you or anyone else at the

Agency analyzed quarterly reports submitted by Great

Rivers Land Trust?

How do you define analyze?

Again, I'm going to have to ask you for your

Do you consider that to be a reV1ew of those

definition, Scott, because this 1S a directive --

I have received them and looked at them.

DO you consider that to be an analysis of the

quarterly reports?

I have considered that compliance with the

NPDES permit requirement.

And have you met periodically with the Great

Rivers Land Trust staff?

AS I quoted and gave you those meeting dates,

yes.

Let's return to question Sa on page 8.

Other

than what you've testified to already, what have been

your discussions with Agency staff with respect to

question 3a -- or 5 -- I'm sorry, it 1S 3a -- no, it's

Sa.

Let me clear that up so we have a clear question

here.

other than what you've testified to already, what

have been your discussions with Agency staff with

respect to question Sa?

The discussions with Agency staff, there has

been a quote in the Illinois pollution Control Board

in their 2000 from Rick Mollohan and Don Roseboom

quoting that determining effectiveness of such

watershed project and similar watershed projects

Electronic Filing, Received, Clerk's Office, August 30, 2007

cannot be done until or after ten years.

Is that why the Agency has not made a

determination of effectiveness at the five-year mark?

I don't know.

well, why has that even been discussed that a

determination of effectiveness cannot be made until

ten years?

Because of this question and me answering

this question.

Did anyone at the Agency tell you at the

five-year mark, hey, we need to make a determination

of effectiveness here?

What do you mean by effectiveness?

well, I'm just using the term that came out

of the Board's order, scott.

I'm going to have to ask

you about that.

Has anyone at the agency told you

that the Agency needed to make a determination of

effectiveness at the five-year mark?

The only discussions about that would have

been with the Permit section and I was requested to

make that memo review.

And the memo you're referring to here is

Deposition Exhibit 3 and Deposition Exhibit 4?

Correct.

Electronic Filing, Received, Clerk's Office, August 30, 2007

Is it your testimony that based upon inputs

ln 2000 from those two gentlemen you mentioned that

the Agency declined to make a determination of

effectiveness until the project had run its course

over ten years?

Section used.

what other discussions have you had with

staff with respect to question Sa?

The term effectiveness, what do you -- what

does this mean by effectiveness.

Tell us about those discussions.

IS effectiveness in the aspects of cost put

into the project? Is effectiveness involved with

sediment savings?

And what conclusions were reached?

conclusions to my knowledge that both could

possibly be used.

In your discussions with Agency staff did

anyone conclude that when effectiveness focuses on

tons of soil saved that the Piasa creek watershed has,

ln fact, been effective?

They have met goals set forth.

well, they've met the ten-year goal, in fact,

I do not know the process that the Permit

tons.

haven't they?

To my knowledge the ten-year goal was 6,600

effectiveness with respect to cost, did you say?

Correct.

What were the discussions with respect to

cost-effectiveness?

If the costs -- enough -- if the cost was

appropriate to what practices were installed.

And in your discussions with Agency staff

what, if any, conclusions were reached on that topic?

That the costs were in line.

Are you aware that they have met and exceeded

that goal?

Through communications by Great Rivers Land

Trust.

SO your answer 1S yes?

With the communications.

I have not seen

that on paper yet.

I haven't seen it on the

spreadsheet.

DO you have any reason to doubt it?

No.

well, actually,

You also mentioned

Let's turn to question 5b.

let's go back to question Sa.

SO basically, the conclusion was that the

costs have been effective. Is that correct?

Effective for what? For tonnage of soil

saved?

I don't know.

These were your discussions,

so I don't know, Scott.

I'm asking you.

The conclusion was that the total tons saved

in my opinion was in line with costs.

Were there any other discussions with respect

to 3a involving you with Agency staff.

Let me strike that.

I keep getting this number

wrong.

Have there been any other discussions with

respect to question Sa involving you other than the

discussions you've already testified to?

They were the main discussions.

well, were there some ancillary discussions?

If there was, I can't remember them right

now.

very good.

Let's move on to question 5b.

What discussions have you had with Agency staff with

respect to question 5b?

Sb was discussions concerning how GRLT tracks

and documents the sediment savings within the

watershed through the implementation of the best

management practices.

And specifically what have you discussed with

Agency staff?

The methods that they recorded and then the

sediment savings as I have in those documents.

well, let me ask you for your answer to

question 5b right now.

As the person from the Agency

who has spent the most time with officials at Great

Rivers Land Trust and the most time reviewing

documents about the piasa Creek Watershed project,

what is your answer to question 5b?

From my perspective, I do not see any problem

with them generating or tracking or documenting

sediment savings within the watershed plan

implementation.

Do you mean by that that Great Rivers Land

Trust has accurately tracked the generation of

sediment savings in the Piasa Creek watershed?

To the best of my knowledge.

Have you -- are there any other discussions

that you've had with Agency staff with respect to

question 5b other than what you've told us about?

The discussions that I can recall have been

recommendation pleading in this case?

You're referring to the 2000?

No.

I'm actually referring to a pleading

centered around the methods of generating sediment

savings, the sediment endpoint reduction method, the

way that they have been documented, and then the

reports that have generated them.

Now, question 5b also includes a comparison

to the load from the Alton plant.

Have you done any

comparison to the load?

No, I have not compared the load.

who does that at the Agency?

Bob Mosher from the standards Unit did that.

Have you discussed any of this with

Mr. Mosher?

I was just involved with conference calls

with you when they were discussed and you were there

when they were discussing that.

okay.

50 all your discussions with

Mr. Mosher have been in my presence?

Correct.

Or at least over the telephone?

Correct.

very good.

Have you read the Agency's

filed in 2006 by Mr. Sofat and it's entitled

Recommendation.

It is a pleading which opposes

Illinois-American Water company's request for an

extension of the adjusted standard.

MR. SOFAT:

It's a recommendati on and it's

filed in 2007, so --

could I see a copy of that,

MR. SOFAT:

Is this the one?

MR. HILES:

It is the one.

please?

I'm handi ng you a document, unmarked as an

exhibit, entitled Recommendation of the Illinois

Environmental Protection Agency.

I'll ask you to take

whatever time you need to just leaf through that in

order to determine if you've read it prior to today.

To my understandi ng, thi sis the same one

that was produced by Tom, our other attorney.

Correct? Tom?

I don't know whether it was or not, Scott.

If it's the same document as I've seen that

Tom produced, yes.

well, let me di rect your attention, please,

to page 8 of that document.

Yes.

You see at the bottom of page 8 there is a

table that carries on to page 9.

the soil conservation efforts of those permit holders

identified in pages 8 and 9?

I was asked by my supervlsor to help in the

development of this table.

And did you help in the development of that

table?

Yes, I did.

Are you familiar with the soil conservation

practices conducted by those companies?

The only knowledge I have with them is the

information provided by them, and that was done Vla

e-mail correspondence.

In connection with your provision of this

information for the recommendations brief?

with this development of this table.

okay.

very good.

So prior to conducting

your research into those projects, you did not have

any personal knowledge of the information that's on

that table, is that correct?

I am aware of the city of Greenville's NP --

I'm aware with Greenville's section 319 projects, but

Correct.

were you asked to conduct any research into

that was in compliance with a TMDL, total management

discharge limit requirement.

Is that the only one you're familiar with?

I have some knowledge, but very limited, of

the Lake springfield initiative, but I don't know if

it's directly related to that NPDES. I'm aware that

they're doing shoreline stabilization issues out

there.

And the same with Otter -- Otter Lake.

I have some questions for you about those

permit holders and their soil conservation efforts.

Let's begin with Otter Lake, please.

Are you aware

that the Otter Lake Water commission uses lime

softening in their treatment process?

I'm not aware of the methods of what they're

using within the lake.

would you agree with me that a water company

which uses lime softening, if they were to return

their wastewater untreated to the lake, would actually

be adding sediment to the lake that was not originally

in the lake?

I'm not familiar with the process for

determining that.

Are you aware that otter Lake 1S listed by

USEPA as an impaired water body?

Yes.

And are you aware that that is due to soil

runoff causing excessive algogrowth and manganese

content?

It's one of the impairments, yes.

So that Otter Lake water commission really

doesn't have a choice but to engage in soil

conservation measures on otter Lake, does it?

I don't know.

Are you aware that the Otter Lake Water

Is that

Illinois

clean

Lakes

program?

1 s .

Yes.

And

are

you

aware

that

they've

received

phase

grant

$165,000,

agaln

from

the

state

commission has received a Phase 1 ICLP grant in excess

of $50,000 to assist in their water -- in their soil

conservation measures?

Illinois, to assist in their soil conservation

measures?

IS it a PLWIP grant?

COURT REPORTER:

priority Lake

I'm sorry?

PLWIP, priority Lakes --

it's a program through the Lakes Department that

provides Section 319 money for restoration work.

called PLWIP.

It's

And are you familiar with that grant being

given to the Otter Lake Water commission?

I'm aware that one was given, but I'm not--

I don't administrate it or I don't have direct contact

with that.

And with that grant the Otter Lake Water

Commission was required to use that money for soil

stabilization measures, is that correct?

I have not seen the agreement between

Illinois EPA and with Otter Lake.

Let's turn to the clinton Lake situation.

And you can feel free to refer to the table that you

helped prepare.

Are you aware that Ameren has

experienced sedimentation problem in clinton Lake?

If that information was available, it was

through the soil and Water conservation District.

Are you aware of any actual conservation

measures conducted at clinton Lake or near its

shoreline by Ameren?

I was provided information through the soil

and Water conservation District about practices.

okay.

Did any of those practices rise to the

level of actual conservation measures, Scott?

What do you mean by conservation measures?

well, in fact, isn't it true that the money

Ameren

has spent with respect to Clinton Lake has been

devoted to survey and monitoring of erosion and

sedimentation in the lake?

I would have to look at my e-mail

correspondence.

SO sitting here today, you don't know?

I'd have to refer back to correspondence.

Do you have your e-mail correspondence with

you?

I will look and see if I have it concerning

that.

Let's do that.

I do not have that information with me.

very good. well, let's continue.

Lake springfield.

I have a number of questions

about Lake springfield and the efforts of City Water,

Light and power.

Are you aware that city water, Light

and Power uses lime softening in its water treatment

process?

NO.

I apologize if I've asked this question

before, but do you know whether lime softening

actually adds total suspended solids to wastewater?

Do you know that one way or the other?

Do you mean have I read it or do I know it to

be fact or what are you asking?

The only -- if I would have heard it, it

would have been possibly with just general information

from permit staff people or engineers.

I'm not an

engineer, so -- I'm a biologist.

well, Scott, let me tell you what I'm getting

at here. In the filtering process at a water

treatment plant, when impurities are filtered from the

intake water and from the production process, are you

aware that at plants which soften their water with

lime those plants are adding solids to the wastewater?

Are you aware of that?

Is that -- is that to remove the solids?

Yes.

I'm aware they do methods to remove solids,

but I don't know what specific methods they do.

Are you aware of any water treatment plant

that uses lime softening and then discharges untreated

wastewater into the reservoir from which they drew

Let's start with, have you read it?

This

their water originally?

No specific plant.

MR. SOFAT:

Brad, I'm gOlng to object.

DO you have personal knowledge of the questions

that opposing attorney is asking?

I'm just saying that's a treatment process

that I'm not involved with.

very good.

Let's move on.

Are you aware that springfield Lake has been

declared impaired by US EPA?

Yes.

And because it's been impaired, isn't it true

that city Water, Light and Power has no choice but to

engage in soil conservation measures on Lake

springfield?

HOW do you define required?

Required because it's an impaired waterway.

Impaired with the 303(d) list?

TO your knowledge impaired in any way.

is a federal --

Right.

-- designation of impairment, Scott.

Right.

And does that designation of impairment,

based on your research, obligate city water, Light and

Power to engage in soil conservation measures?

To the best of my knowledge, impairments on

certain water bodies are on a list generated by the

Illinois Environmental protection Agency, which are on

the 305(b) and the 303(d) list.

And by virtue of being on that list is city

Water, Light and power obligated to engage in soil

conservation measures to your knowledge?

They must adhere to the clean Water Act.

Are you aware that Illinois EPA has provided

funds to the city of springfield specifically for

shoreline stabilization?

Yes.

Are you aware that Illinois EPA has provided

funds to the city of springfield specifically for

dredging of Lake springfield?

I knew they dredged.

But you don't know if some of the funding

came from Illinois EPA?

No, I don't know the specific --

Are you aware that Illinois EPA has provided

funding to the city of springfield for other soil

conservation projects?

Yes.

Scott, to your knowledge has Illinois EPA

provided any funding to the Illinois-American water

company to be utilized for soil savings measures at

the Piasa creek watershed project?

I'm aware of section 319 applications that's

been submitted to the Agency for consideration of

using section 319 funding for -- and let me get my

record.

I'm aware of both the Alton Lake Heritage

parkway Advisory commission, the southwestern Illinois

Resource Conservation and Development, and also for

the Great Rivers Land Trust section 319 application

packages.

All right.

Those are three entities that I

will tell you right now do not own, operate, control,

or contribute to Illinois-American Water company.

My question to you is, to your knowledge has

Illinois EPA provided any funding to Illinois-American

Water company to help them with soil conservation

measures in the Piasa creek watershed?

Not directly to my knowledge.

well, let's talk about indirectly. Has

Illinois EPA provided funding to indirectly help

IllinoiS-American water company with soil conservation

measures in the Piasa creek watershed?

Not to my knowledge.

To your knowledge has Great Rivers Land Trust

received any money from Illinois EPA to assist in soil

conservation measures in the piasa creek watershed?

Are you aware

Not to my knowledge.

Let's talk about Lake Decatur.

or did you become aware --

MR. SOFAT:

Just one moment, pl ease.

In your research regarding Lake Decatur, did

you become aware that in 1984 one of the lake's basins

had become so shallow due to sedimentation that the

water treatment plant could no longer pump water from

it?

I was not given that specific information.

Are you aware that Lake Decatur is considered

an impaired water by United States EPA?

I would have to look that up.

Are you aware that according to estimates of

the Macon county soil and Water Conservation District

four dollars is saved in water treatment for everyone

dollar that is invested in conservation measures in

Lake Decatur?

I do not believe that information was

Do you have any reason to doubt it sitting

here today?

(shakes head from side to side.)

Are you aware that the Decatur water

treatment plant uses lime softening in its treatment

process?

response.

SO you're not aware that Lake Decatur uses

lime softening -- I'm sorry -- that the Decatur water

treatment plant uses lime softening?

We just go back to the discussion we had

about that before.

Let's talk about Kincaid Lake.

Are you aware

that Kincaid Lake is considered by USEPA to be

impaired?

Yes.

Are you aware that the upper reaches of Lake

Kincaid have been filled with approximately 100

million cubic yards of sediment since the lake was

constructed?

I do not know specific tonnage.

Do you agree with me that they have a serious

provided.

I'd have to look at my correspondence.

Goes back to your questions before and my

sedimentation problem in Lake Kincaid?

Yes, they have a problem.

been funded by the Illinois Department of Natural

Resources at Lake Kincaid?

What funding mechanism has been used?

I'm asking you, are you aware that the

Illinois Department of Natural Resources has provided

funding for conservation measures at Kincaid Lake?

The only knowledge I would have of that 1S if

c-2000 monies were used, either associated with

matching the section 319 program.

Has that in fact occurred?

I'm not directly involved with that project.

Have you heard that in 2003 a phase 2 grant,

this would be a phase 2 Illinois clean Lakes program

grant, was given to that water treatment program in

the amount of $300,000 and that it was matched by

section 319 funding in 2006?

If it was the reference of PLWIP, yes.

Let's turn to Governor Bond Lake.

Are you

aware that the city of Greenville, their water

treatment plant uses lime softening in its treatment

process?

Are you aware that conservation programs have

I'm not aware of what methods they use.

I'm

aware they use methods, but I'm not aware of what

methods they use.

Are you aware that Governor Bond Lake 1S

considered impaired by EPA?

Yes.

And are you aware that the high priority

impairments include total suspended solids?

Yes.

Are you aware that at least half of the upper

lake's capacity has been filled since the lake was

constructed?

Yes.

50 really, the city of Greenville doesn't

have any choice but to engage in soil conservation

measures on Governor Bond Lake, do they?

They have to -- they have to be required or

meet section -- clean water Act requirements.

Are you aware that the city of Greenville has

received a phase 1 ICLP grant in excess of $50,000?

Yes.

Are you aware that they've received a Phase 2

ICLP

grant of $300,000?

Yes.

And are you aware that that $300,000 grant

has been matched by Section 319 funding?

Yes.

And all of that money goes into reducing the

sedimentation of government -- Governor Bond Lake.

Does it not?

Correct.

Scott, let me ask you, how do you consider

any of these projects -- how do you consider any of

the sedimentation reduction efforts at any of these

projects to be similar to the sediment reduction

efforts that are being conducted at the piasa Creek

watershed project?

Can you restate the question, please?

How do you consider the soil conservation

efforts at these six projects to be similar to the

soil conservation efforts at the Piasa creek Watershed

project?

I can't answer that question.

Are you aware of any government funding

provided to my client, the Illinois-American Water

company, that has been utilized by my client to

implement soil conservation measures in the Piasa

Creek watershed?

Can you repeat the first part of that

questi on?

Are you aware of any government funding,

federal, state, or local, provided to the

Illinois-American water Company that has been utilized

for soil conservation measures at the Piasa creek

wate rshed?

I'm not aware of any federal funds directly

given to the Illinois-American Water Company.

through that

already.

Haven't

we?

Right.

Same

answer,

correct?

Correct.

And

how

about

the discharge

point

the

How about state funds?

I guess we've been

Mississippi River, is that an impaired waterway to

your knowledge?

have

That is something that my unit and I do not

it's something that the Standards Unit needs

to make that determination.

50 you really don't know if it's an impaired

waterway or not?

Are you talking about impairment right at the

discharge point or a segment within the Mississippi

River itself?

Let's talk about that segment within the

Mississippi River.

I believe to the best of my knowledge that 1S

impaired.

On what basis?

I would have to look at the impairments to

tell you that.

well, do you recall that it's impaired based

upon sediment?

when you're talking about impairments, each

year those impairments may change.

well, I'm sitting here asking you if it's

ever been impaired during the -- from 2000

in this

decade has that segment of the Mississippi River ever

been impaired because of total suspended solids?

I would have to go back and look at those

reports to see that.

How about for iron, do you recall, sitting

here right now, if that segment of the Mississippi has

ever been impaired because of iron?

I'd have to go back and look at those

reports.

NOW, I believe if we refer back to your

testimony that there were a number of times where you

acknowledged that the efforts of these other point

sources to conserve -- or, rather, to reduce

sedimentation were efforts that had to be taken 1n

Do you agree

order to preserve their source of water.

with that?

Efforts need to be taken to protect their

source water.

To your knowledge does the Illinois-American

Water company need to undertake any efforts to protect

its source water?

Source water 1S the Mississippi River.

Yes, it is. Does Illinois-American water

company need to undertake any sedimentation control

measures in order to protect its source water, the

Mississippi River?

The only knowledge I would have is what's in

the NPDES permit conditions.

And sitting here today, do you recall if any

of those conditions mandate sedimentation reduction

efforts?

Mandate total suspended solids.

okay.

Now, Scott, here's my question for

you.

I'm asking you as a means of a business

necessity, ln order for that water plant ln Alton to

protect its water source, does it have to control

sedimentation in the Mississippi River

MR. SOFAT:

obj ecti on.

in order to obtain clean water? Do you

know that?

speculation.

To your knowledge do water plants that draw

their source water from a reservoir have to protect

their source water by conservation efforts at the lake

and at the banks of the lake?

Correct.

And water plants that draw from reservoirs

like lakes have a business necessity to protect their

source water.

DO they not?

MR. SOFAT:

Asking for speculation.

I'm sorry?

MR. SOFAT:

objection, Brad.

personal knowledge of that.

Do you?

He has no

like a

Asking for

River.

rese rvoi r

MR. SOFAT:

I'm just objecting.

No.

It's the Mississippi

which is different from a

isn't it?

1 ake ,

That would be the decision of that water

company.

MR. HILES:

Can you glve me just a moment,

gentl emen?

I have nothing further.

MR. SOFAT:

Can we take a break?

Sure.

MR. HILES:

Or you can walve that right.

It's your choice. We do have a very tight time frame,

however, because we have a hearing on the 28th.

sure.

(A recess was taken.)

MR. HILES:

Let's go back on the record.

MR. SOFAT:

I have no questions.

MR. HILES:

Scott, I believe we've concluded

your deposition.

And you have the right to review

this transcript once it's prepared and find any errors

in it. It's not an opportunity to correct substantive

testimony or to supplement your testimony.

But if

there are just any mistakes, it's an opportunity to

correct those. Mistakes in transcription I should

say.

MR. HILES:

Sure.

And the Board has requested

written testimony ln advance of the hearing, which

would be sometime next week.

Right.

MR. HILES:

And so it kind of compresses

everybody's work on this thing.

Sure.

have a transcript? I'd like to get it by the middle

of next week.

COURT REPORTER:

I can do that.

MR. HILES:

wednesday delivery?

COURT REPORTER:

wednesday.

MR. HILES :

All ri ght.

And then we'd

probably need you to review it within 24 hours.

I'd like to see it.

MR. HILES:

okay.

A copy of it.

MR. HILES:

very good.

(Deposition concluded at 11:23 a.m.)

MR. HILES:

reporter's work.

Sure.

MR. HILES:

starting with the court

Let me ask you, when could you

STATE OF ILLINOIS

)

COUNTY OF SANGAMON

)

CERTIFICATE

I, Dorothy J. Hart, affi 1 i ated wi th capi tol

Reporting service, Inc., do hereby certify that I

reported in shorthand the foregoing proceedings; that

the witness was duly sworn by me; and that the

foregoing is a true and correct transcript of the

shorthand notes so taken as aforesaid.

I further certify that I am in no way associated

with or related to any of the parties or attorneys

involved herein, nor am I financially interested in

the action.

Dated this 20th day of

August, A.D .• 2007. at

springfield, Illinois

Certified

,ice"

thand

~---

Reporter

Registered

ofessional Reporter

and Nota y

alA!.

SEAL

DOROTHY

~IART

NOTARY PUBLIC, STATE OF ILLINOIS

MY COMMISSION EXPIRES 6.24.2011

ERRATA SHEET

Illinois-American Adjusted Standard proposed Extension

I hereby verify that the foregoing is a true and

accurate transcription of my deposition taken on

8/16/07,2007, except for those changes noted below:

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Dated this

day of

, 2007

Notary Public

ERRATA SHEET

IllinoiS-American Adjusted standard

pro~osed

Extension

I hereby verify that the foregoing is a true and

accurate transcription of my deposition taken on

8/16/07, 2007, except for those changes noted below:

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Piasa

Creek

Watershed

Project

TABLE

CONTENTS

Illinois

American

Water

RW["Ji,,"."

PCWP

Implementation

Plan

II.

2001

Reports

ill.

2002

Reports

IV.

2003

Reports

2004

Reports

VI.

Boy

Scout

Lake

Project

VII

Project

Files

•

VITI.

Press

Releases

IX.

Maps

DEPOSITION

•

EXHIBIT

g-,

-D]

ILLINOIS POLLUTION CONTROL BOARD

August

6, 2007

THE MATTER OF:

)

PROPOSED EXTENSION OF ADJUSTED )

STANDARD APPLICABLE TO ILLINOIS- )

AMERICAN WATER COMPANY'S

)

ALTON PUBLIC WATER SUPPLY

)

FACILITY DISCHARGE TO THE

)

MISSISSIPPI RIVER UNDER

35 ILL. ADM.)

CODE 304.124 AND 304.106

)

.AS 07-2

(Adjusted Standard)

HEARING OFFICER ORDER

The parties are strongly encouraged to prefile as much testimony as possible by

August 21, 2007, including written answers to these questions.

This

will enable the Board to

follow-up with any remaining concerns at hearing. Additionally, to address the possibility that

the Board may not decide this matter by October 4, 2007, petitioner may argue for retroactive

relief at hearing or in its post-hearing brief.

Questions for IAWC and IEPA

Pertaining to the Amended Petition

AS 2007-2

To be addressed in Pre-Filed Testimony and/or at Hearing on August

28,2007

(Docket AS 2007-2)

Both parties are invited to address any

of the questions posed, whether specifically addressed

to that party

or not.

lllinois-American Water Company

(IA

We)

Quantifying and Verifying Sediment Reductions

USEPA'sWater Quality Trading Policy states that ''mechanismsfor determining and

ensuring compliance are essential for all trades and trading programs ... States and tribes

should establish clear, enforceable mechanisms consistent with NPDES regulations that

ensure legal accountability for the generation of (pollutant reductions) that are traded."

USEPA (9-13-03) at 10.

USEPA's Water Quality Trading Assessment Handbook states,

"In

pilot projects, the

relatively variable and unpredictable performance of nonpoint source BMPs [Best

Management Practices] has been handled by discounting the estimated reductions

available for trade. The uncertainty discount is intended to ensure that errors in BMP

DEPOSITION

EXHIBIT

Jl}P10"it....-71/f

performance estimates will not jeopardize the water quality equivalence of trades

involving these pollutant control actions." USEPA (11-04), EPA 841-B-04-001, at 40.

The handbook provides an example using an uncertainty discount

of 50%, where the

nonpoint source must produce 2 pounds

of pollutant reductions for every I pound it

wishes to sell. USEPA (11-04), EPA 841-B-04-001, at 40-41.

AS 99-6, IAWC explained, "The rate of erosion will be calculated by placing stakes

(or other types

of monuments) along the stream bank and measuring the rate [of]

erosion for one

year prior to installation of erosion controls.» Board

0&0,

9-7-00 at

15. "During the ten year span

of the project, GRLT will submit quarterly reports to

the Agency which detail the progress

of the monitoring and other project-related

activities.» (Board

0&0,

9-7-00 at 15.)

QUESTIONS:

a. How does IAWC account for sediment reductions in its reporting to IEPA?

b. Does IAWC rely entirely

on the GRLT quarterly reports to the Agency to quantify

and verify its sediment reductions for compliance?

c. When

IAWC states it will maintain a soil savings with a 2 to I offset or above

6,600 tons

per year (Am. Pet. at 32), does IAWC consider the 2 to I ratio as the

uncertainty discount?

Or is the 2 to I ratio intended to produce a greater

environmental benefit than compliance with the effluent regulations alone?

If the 2 to I ratio is intended to produce a greater environmental benefit, would

IAWC please propose an uncertainty discount based

on USEPA's Water Quality

Trading Assessment Handbook (November 2004).

e. Since

IAWC is currently seeing a 4.2 to I offset ratio for sediment and 3.8 to I

offset ratio for iron (Am. Pet. at 3), would

IAWC consider proposing a ratio higher

than 2 to I to account for the uncertainty discount and to create an additional

environmental benefit?

Since USEPA's Water Quality Trading Policy stresses the need for clear and

enforceable mechanisms to ensure compliance and accountability for the generation

of pollutant reductions that are traded, can IAWC propose such mechanisms for

inclusion

in the wording of its adjusted standard?

Potential New Agreement between IAWC and GRLT

IAWC discusses the terms of the lO-year Consulting and Performance Agreement

between

IAWC and Great Rivers Land Trust (GRLT). After the expiration of the 10-

year agreement,

IAWC indicates it will continue to provide funding to maintain soil

savings above 6600 tons

per year, but expects the soil savings it has invested in for the

Piasa Creek Watershed Project "to reach a point at which it will be sustainable without

future funding from outside sources." Am. Pet. at 32. lAWC references a potential

new contract with GRLT for maintenance only. Am. Pet. at 32.

USEPA's Water Quality Trading Policy states, "Where trading involves nonpoint

sources, states and tribes should adopt methods to account for the greater uncertainty

estimates of nonpoint source loads and reductions." USEPA supports a number of

approaches including, "retiring a percentage of nonpoint source reductions for each

transaction or a predetermined number

of credits." USEPA (1-1-3-03 at 9.)

QUESTIONS:

a. For a stream bank that has been stabilized where sediment reductions are not active but

passive, is there a point at which that particular project could be retired in terms

accounting for sediment reductions?

b. When a sediment reduction project is mature and self-sustaining and

no longer benefits

from continued maintenance and monitoring, is it time

to initiate an active sediment

reduction project to generate a tradable

co=odity?

c. Should IAWC's adjusted standard contain provisions to maintain the necessary offset by

continuing to fund sediment reduction projects beyond those that have already reached

maturity? Does IAWC believe this approach would be consistent with funding long

term maintenance

of a traditional effluent control facility, albeit more fmancially and

environmentally beneficial?

d. Did IAWC

consult with GRLT or the Illinois State Water Survey (which works with

the Agency on sediment control projects such as the Lake Pittsfield watershed

project-

Board 0&0,9-7-00 at 16) to provide insight into this?

Funding for the Sediment Reductions and Maintenance

The previous

AS 99-6 bound lllinois-American to a dollar amount of $4,150,000

payable over ten years. The

07-2

petition specifies only a performance goal of a

to 1 offset, or a minimum of 6600 tons of soil per year. The cost of complying with

the

07-2

is not specified or estimated.

QUESTIONS:

a. Were there other aspects of the Piasa Creek Watershed Project that benefited from

WC's funding besides the direct soil savings, such as educational outreach or

habitat restoration?

terms of other aspects besides soil savings, how would the Project as a whole be

impacted by committing solely to a performance goal of 2: 1 or 6600 tpy rather than

a dollar amount?

c. Does Illinois-American have an estimate for yearly costs and time associated with a

maintenance contract?

d. How would those costs change over the years

as the project reaches the point of

sustainability without future funding from "outside sources"?

referring to a future without funding by "outside sources", is IAWC aware of

funding that might come from other than outside sources?

Rulemaking

Upd~te

"In

the 1980s, the Alton Water Company (the predecessor to IAWC in Alton) applied

to the Board for relief from the effluent standards at

35 lil. Adm. Code 304.104. "

Board

0&0,

September 7, 2000 at 4.

QUESTION:

The Board engages in ongoing review of 35 ill. Adm. Code Part 304 and all of its rules to

determine whether they are still necessary or accurate. For the sake of any needed

cleaning up of 35 IAC Part 304 in a future rulemaking, please comment on whether

Section 304.206 Alton Water Company Treatment Plant Discharges is still needed?

Section 304.206 Alton Water Company Treatment Plant Discharges

This Section applies to the existing 18.3 million gallons per day potable

drinking water treatment plant owned by the Alton Water Company

which is located at, and discharges into, river mile 204.4 on the

Mississippi River. Such discharges shall not be subject to the effluent

standards for total suspended solids and total iron

of 35 Ill. Adm. Code

304.124.

(Source: Added at 8 Ill. Reg. 3687, effective March 14, 1984)

illinois Environmental Protection Agency (lEPA)

The Agency Recommendation states,

"In

making its decision, the Board should also consider the USEPA's

efforts to develop categorical effluent limits for water supply treatment

plant effluents in federal regulations ...Adoption

of federal categorical

effluent limits would supersede any limits previously adopted by states

unless the state limits were more stringent. Federal action would

therefore negate any continued relief granted by the Board regarding

Illinois American's petition for extended relief." Ag. Rec. at

11.1

Under 40 CFR Subchapter N: Effluent Guidelines and Standards, Parts 402-699

"prescribe effluent limitations guidelines for existing sources, standards

of performance

for new sources and pretreatment standards for new and existing sources... " 40 CFR

401.10.

40 CFR 403.1

(b)

This regulation applies:

(4)

any new or existing source subject to Pretreatment

Standards. National Pretreatment Standards do not apply

to sources which discharge to a sewer which

is not

connected

to a POTW Treatment Plant.

QUESTIONS:

a. Since lAWC is not discharging to a POTW, the 40 CFR Subchapter N:

Effluent Guidelines and Standards appear not to apply. Does the Agency agree?

Is the Agency Reco=endation referring to other federal categorical effluent

limits?

b. The Agency

Reco=endation also states, "Up-to-date information on

[USEPA's efforts

to develop categorical effluent limits for water supply

treatment plant effluents] was obtained from Mr. Tom Bone

of USEPA's Office

of Science and Technology... " Ag. Rec. at 11.

the Agency's contact with

Mr. Bone, did he indicate that USEPA would be developing categorical effluent

limits for sources which do not discharge to a POTW?

c. Did Mr. Bone indicate for which pollutants USEPA would

setting effluent

limitations guidelines for water supply treatment plants? Did they include

TSS

and iron?

illinois Water Quality Trading Policy

QUESTIONS:

a. Is IEPA considering water quality trading as an option for point source

discharges in waterways with TMDLs, such as the East Branch

of the DuPage

River and Salt Creek?

so, please describe.

b. Is the Agency aware of any other dischargers in Illinois that use or plan to use

water quality trading?

If so, please describe?

The Agency Reco=endation dated 6-18-07 will be cited as Ag. Rec.

.---~-

( c.! Did IEPA consult with the Illinois State Water Survey (which works with the

Agency on sediment control projects such as the Lake Pittsfield watershed

project-Board 0&0,9-7-00 at 16) to provide insight into the prospect of

trading and retiring credits for nonpoint source projects that have matured?

USEPA Water Quality Trading Policy

The Agency Recommendation states,

"In the intervening years since relief was granted, concepts of pollutant

trading and the importance

of providing reasonable treatment have been

refined at the federal level. The Agency thus believes that the requested

relief is no [longer] consistent with applicable federal law." Ag. Rec. at

15.

The Agency's Recommendation quotes information from the

USEPA's "Frequently

Asked Questions about Water Quality Trading."

"When can trading occur? .. the Trading Policy does not allow trading to

meet a technology-based effluent limit (TBEL)." Ag. Rec. at 10.

http://www

.epa. gov

lowow

Iwatershed/trading/tradingfaq.html

Although IEPA states trading has been refmed at the federal level, this particular issue

of the USEPA's policy appears to be consistent with USEPA'sprevious 1996 "Effluent

Trading

in Watersheds Policy Statement".

"To take advantage

of trading, a point source must be in compliance,

and remain

in compliance, with applicable technology-based limits." 61

Fed. Reg. 4995, February 9, 1996.

The issue is similarly reiterated in the "Water Quality Trading Assessment Handbook:

Can Water Quality Trading Advance Your Watershed's Goals?", November 2004 EPA

841-B-04-001:

"Under the Clean Water Act, point sources are required to comply with

their technology-based limits without trading unless trading is explicitly

incorporated in the effluent guidelines." USEPA (11-04) at App. D-I04.

this regard, the Handbook refers specifically to requirements under the Clean

Water Act.

The Clean Water Act itselfonly refers to the federal technology-

based limits. Currently, there appear to

be no federal effluent guidelines or TBEL

for iron or TSS from water supply treatment plant effluents not discharged to a

POTW.

QUESTION:

Are there federal effluent guidelines or TBEL for TSS and iron discharges not

to a

POTW that would apply to IAWC?

USEPA Oversight

AS 99-6 was incorporated into the NPDES Permit, which is subject to federal purview.

USEP

A'sWater Quality Trading Policy (9-13-03) states,

"[US]EPA has various oversight responsibilities under the CWA,

including...review of NPDES permits and provisious for reviewing and

making recommendations regarding revisions to a state's

ortribe's water

quality management plans through the continuing planning process.

...However, where questions or concerns arise, EPA will use its

oversight authorities to ensure that trades and trading programs

are fully

consistent with the

CWA and its implementing regulations. " USEPA (9-

13-03) at 11.

So far

the record reveals no indication from USEPA that the approach under AS 99-6

that was included in

IAWC's NPDES Permit -lLOOOO299 is inconsistent with the CWA

or its implementing regulations.

USEPA's Office of Water, Water Quality Trading Policy, January 13,2003 on p.

11, it states, "States and tribes

are encouraged to consult with [US]EPA throughout

development

of trading programs to facilitate alignment with the CWA. "

QUESTIONS:

a. Other than discussions with.Mr. Bone about possible federal effluent limitation

guidelines, did the Agency consult with

USEPA specifically about IAWe's adjusted

standard petition for cooperation with the Piasa

Creek Watershed Project? If so,

would you please describe.

'\Is !EPA aware of any feedback from USEPA regarding IAWe's NPDES Permit

and the provisions for AS 99-6? If so, please describe.

Report on performance of Piasa Creek Watershed Project:

AS 99-6, the Board's Opinion and Order read,

"During the ten year span of the project, GRLT will submit quarterly

reports to the Agency which detail the progress

of the monitoring and

other project-related activities... GRLT staff will also meet periodically

with Agency staff

to discuss the progress of the GRLT Project." (Board

0&0,9-7-00 at 15.)

"Five years into the GRLT Project (the halfway point), the Agency will

make a determination

of effectiveness ...

addition to the

fIfth

year

review, the Agency will continue

to be involved in the site selection

process for the various aspects

of the project, help review and implement

management practices, analyzed quarterly reports submitted by GRLT,

and meet periodically with GRLT staff." Board

0&0,9-7-00 at 16.

The Agency's Recommendation did not mention making a determination

effectiveness of the GRLT Project or a synopsis of its involvement as described above.

QUESTIONS:

a. Please provide a copy of an Agency's determination of effectiveness and

a summary

of the Agency's involvement in the GRLT for the record

here.

b. How has the Agency assessed compliance with

AS 99-6 thus far in terms

of tracking the generation of sediment savings in Piasa Creek and

comparing it

to the load from the Alton Plant?

The parties are reminded

to participate in a telephone status conference with the hearing

officer at 10:30 a.m. on August

13, 2007. The status conference shall be initiated by the

petitioner.

IS SO ORDERED.

Carol Webb

Hearing Officer

lllinois Pollution Control Board

1021 North Grand Avenue East

P.O. Box 19274

SpringfIeld, lllinois 62794-9274

217/524-8509

webbc@ipcb.state.i1.us

•

Date:

To.:

From:

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 NoRTH GRANO AVWJ'

EAsT, P.O. Box

19276, S'RINGl'J£lO,ILUNOlS 62794-9276 -( 217) 782-3397

lAMES

THOMPSON CENTER, 100 Wm RANootfH, SU,,, 11-300, CHICAGO, IL 60601 - (312) 814:6026

Roo R, BtAGOJEVlCH, GOVERNOR

DOUGlAS P, $cOTT, D'RECTOR

Memorandum

November 21, 2005

Blaine KiJlsley

Beott

Tomkins

Subject:

Piasa Creek Watershed Project

Overview

The following information

provided as an overview of the Piasa C_k Watersbed Project for

the

renewal of NPDES Penni! JLOO00299 (Illinois American Water Company - Alton Public Water

Treatment Facility and

the Illinois Pollution Control Board (!PCB) Adjusted Standard Provision AS 99-6

issued on September 7, and Oct<>ber 19,2000).

The

Piasa Creek Watershed

The Piasa Creek Watershed drains over

78,000 acres in Madison, Jersey, and Macoupin counties and isa

tributary of 1IIe Mississippi.

The

lower reaches of the slr!:am were channelized years ago and are

comprised

of s..,ond growth bottomland deciduous forests.

The upper

reaches vacate water ftom the

residenti8l landscapes of

Godlley

and the agricu!tutlll lands of Jersey ""d Macoupin counties. The

watershed's point

ofdischarge

in!<>

the Mississippi is at the G.reat River Road, about fIVe miles north of

Alton.

Project Background

Illinois

Ameril;llll Wa,ter

Company

(JAW) constructed a 16.0 million gallon per day watertnlalment

facility

.in.A!t<>il.lUinois to replace a 100-year old facility

1bat was

suscePtible t<> flooding. IllinOis EPA

determined

ll!l!t

iile existing site.specific exemptian and Permit did

nat

ilpply to the new fecil,ity, ""d that

standard disebalge limits

wauld apply unless new regulatOlY reliefwas granted.

W pursued an Adjusted Standard application ,with the !PCB for relief t<> the standard discharge

and to allow

direct

discharge t<> the MississiPl'i River eliminating

the

need for residual lagoons,

mechanical

de~g

equipment and hauling

th<;

.deWljtered solids to a landfill. Loollll"eSi4ents.

government officials and environmental groups were opposed to the siting oflagoons and the hauling of

dewatered solids along 1IIis roadway, which is a designated National Scenic Byway.

Piasa Creek Watershed Project

JAW developed a unique pal1nership with Orest Rivers

Land

Trust (ORLT) t<> implement a watershed

project, which

will provide a sustainable reduction in ovemll sediment loading of

the

Mississippi River.

lAW will contribute $4.15 million dallars over a ten-year period

to fund the PCWP. The

goal

of the

project

is to meet a 2:1 reduction in sediment load to the Mississippi River. As such, lAW amended its

Adjusted Standard application to include this unique suspended solid trading proposal

that was

subsequently supported by the Dlinoi. EPA and the IPCB iSsued the adjusted standard (AS 99-6).

ROCUORO -

"302

Norlh

Main

Street. Roddotd, It 61103 - (8IS) 987.7760 •

Dts Pl.Al:-.B - 9511 W. Harrison St., Des Plaines-.IL 6OOJ6 _ (847)

294.4000

ELGIN-595

Sowh

Statte, Elgin.ll60123 - (841)

608~3131

•

Peo!llA-S41S N.lJnIverslty St.. 'Peorla, fl 61614-t3091693.S463

BUREAUOJ' l.ANo -

P£~1A-7620

N. UniversitY St. Peoria,a 61614 -(309} 693-5462 •

CHAo"PAICH- 2125 Soulh First Street. Champalsn, tl61$20-(.nn 278.5800

SAAINCflaD - 4500 S. Sixth

S~t

Rd.. SpringlWld.

Jl6270&

-(217) 786-6892

•

Cot.lJ,.~\'IU!

- 2009 Mall Stteet. Comrtsvilre.

62234 _ (618) 346.$120

MAAfON- 2309 W. Main St.. Suite 116. Marioo,/l62959 -/618) 993-7200

PIlJNT'EO

RlCrCHO P"Pf.'l

Project Goal

The Piasa Creek Watershed Project goal

is to reduce sedimentation

the watershed by approximately

6,700 tons

per year by the end ofthe ten-year program in 2010.

Project Benefits

The Piasa Creek Watershed Project benefits

are

weil beyond the sediment reduction goal. The immediate

benefit is that IAW received an NPDES permit from the Illinois EPA that will provide IAW millions

dollars in savings in projected construction and operating expenditures. The lower construction and

operating costs could result in lower water bills to area residents. The long-term benefits include reduced .

erosion,

improved water quality, stormwater control, enhanced fish and wtldlife habitat, protection of

sensitive ecosystems, and financial incentives to farmers and landowners to implement conservation

practices.

Project Sediment Rednction Plan

Effective

measures to redoce sediment are those that reduce eroded sediment at,the soure:

'''';-~ti:

;Se

sediment is transported offsite and into creeks, rivers and lakes. Examples of

this

approach could include

vegetative cover; storm water management controls; best management practices for

urben, agricultural

'lands,

and construction sims; and land-use cbanges that will result in a net reduction oferosion potential.

Accomplished to

Date

The implementation of various sediment reduction tools and practices

such

as water and sco"nent control

basins, slormwater detention basIns,

grass

waterwa~,

filter

strips,

stream restoration practices, riparian

corridor protection and restoration,

land acquisition and protection

and

wetlands testorstion have been

completed: As ofJanuary 2005, The Piasa Creek Watershed Project bas addressed the erosion reductions

outlined in the following'table.

II'abJe I:

PIasa

Creek Watershed Project acres benefited, erosion reductions and streambank

~bilizaUoa

•

......Benefited

1,117

JillV Erosion

{to..

soD saved\

2099

tie8iiibank ErosloD

ltons

soll saved\

694

Llaeai-Feet Stabilized

22.147

~ource:

GRLT Status Report:

~ttp:l/www.greatriverslandtrust.c-omlpcwp_statusJeportjan!!&'Y_2002.htm.,

Conclusion

With the

information provided in the PCWP overview, the GRLT has provided fue required elements to

comply with the coudition. set forth

the mentioned Permit.

Ifyou would nced further information about the Nonpoint

Source

Unit'.role in the PCWP development

and implemenletio

.. fccllh:e to contact me.

...:..__ _

' "

---_._--. -- .- ..

~"-_.

-_..._- -_..'.--' ._- ----

.~.

..»' ..----"

Electronic Filing, Received, Clerk's Office, August 30, 2007

ILLINOIS

ENVIRONMENTAL

PROTECTION

ACENCY

DEPOSITION

EXHIBIT

j~'bLJ

)

NORTH

GRAND

AVENUE

EAST,

P.O.

BoX

19276,

SPRINGFIELD,

ILLINOIS

62794-9276

217)

8:2~-~3~3~9~7-""","~"'J

JAMES

T~OMPSON

CENTER,

100

WEST

RANDOLPH,

SUITE

11-300,

CHICAGO,ll60601

(312)

814-6026

ROD

BLAGOJEVICH,

GOVERNOR

DOUGLAS

Scan,

D,RECTOR

Date:

To:

From:

Subject:

Memorandum

November

21,

2005

Blaine

Kinsley

Scott

Tomkins

Piasa

Creek

Watershed

Project

Overview.

ILLINOIS

EPA

5-YEAR

REVIEW

MEMO

The

following

infonnation

provided

overview

the

Piasa

Creek

Watershed

Project

for

the

renewal

NPDES

Pennit

IL0000299

(Illinois

American

Water

Company

Alton

Public

Water

Treatment

Facility

and

the

Illinois

Pollution

Control

Board

(IPCB)

Adjusted

Standard

Provision

99-6

issued

September

and

October

19,2000).

The

Piasa

Creek

Watershed

The

Piasa

Creek

Watershed

drains

over

78,000

acres

Madison,

Jersey,

and

Macoupin

counties

and

tributary

the

Mississippi.

The

lower

reaches

the

stream

were

channelized

years

ago

and

are

comprised

second

growth

bottomland

deciduous

forests.

The

upper

reaches

vacate

water

from

the

residential

landscapes

Godfrey

and

the

agricultural

lands

Jersey

and

Macoupin

counties.

The

watershed's

point

discharge

into

the.

Mississippi

the

Great

River

Road,

about

five

miles

north

Alton.

Project

Background

Illinois

American

Water

Company

(IA

constructed

16.0

million

gallon

per

day

water

treatment

facility

Alton,

Illinois

replace

lOO-year

old

facility

that

was

susceptible

flooding.

Illinois

EPA

determined

that

the

existing

site-specific

exemption

and

Permit

did

not

apply

the

new

facility

and

that

standard

discharge

limits

would

apply

unless

new

regulatory

reJiefwas

granted.

pursued

Adjusted

Standard

application

with

the

IPCB

for

relief

to'

the

standard

discharge

limits

and

allow

direct

discharge

the

Mississippi

River

eliminating

the.

need

for

residual

lagMns,

mechanical

dewatering

equipment

and'

hauling

the

dewatered

solids

landfill.

Local

residents,

govermnent

officials

and

environmental

groups

were

opposed

the

siting

lagoons

and

the

hauling

dewatered

solids

along

this

roadway,

which

designated

National

Scenic

Byway.

Piasa

Creek

Watershed

Project

developed

unique

partnership

with

Great

Rivers

Land

Trust

(GRLT)

implement

watershed

project,

which

will

provide

sustainable

reduction

overall

sediment

the

Mississippi

River.

will

contribute

$4.15

mi11ion

dollars

over

ten-year

period

fund

the

PCWP.

The

goal

the

project

meet

reduction

sediment

load

the

Mississippi

River.

such,

amended

its

Adjusted

Standard

application

include

this

unique

suspended

solid

trading

proposal

that

was

subsequently

supported

the

Illinois

EPA

and

the

IPCB

issued

the

adjusted

standard

(AS

99-6).

ROCKFORD

4302

North

Main

Street,

Rockford,

IL6l103

(815)

987-7760

•

DES

PL>"fNf5-

9511

Harrison

St.,

Des

Plaines,

II:.

60016

(847)

294-4000

ELGIN

595

South

State,

Elgin,

60123

(847)

608-313

•

PEORIA

5415

University

St,

Peoria,

61614

(309)

693-5463

BURc-'..U

LAND

PEORIA

7620

University

St.,

Peoria,

61614

-1309}

693-5462

•

CHAMPAIGN

2125

South

First

Street,

Champaign,

6782.0

(l17)

278~5800

SPRINGFIELD

4500

Sixth

Street

Rd:,

Springfield,

62706

i21?)

786-6892

•

COlliNSVilLE

2009

Mall

Street,

Collinsville,

62234

(6-18)

346-5120

MARION

2309

Main

St.,

Suite

116,

Marion,

62959

(618)

993-7200

Electronic Filing, Received, Clerk's Office, August 30, 2007

Project Goal

The Piasa Creek Watershed Project goal is to reduce sedimentation in the watershed by approximately

6,700 tons per year

by the end of the ten-year program in 20 I O.

Project Benefits

. The Piasa Creek Watershed Project benefits are well beyond the sediment reduction goal. The immediate

benefit is

that IAW received an NPDES permit from the Illinois EPA that will provide lAW millions of

dollars in savings in projected construction and operating expenditures. The lower construction and

operating costs could result in lower water bills to'arearesidents.

The long-term benefits include reduced'

erosion, improved water quality, stormwater control, enhanced fish and wildlife habitat, protection

sensitiye ecosystems, and financial incentives to farmers and landowners to implement conservation

practices.

Project Sediment Rednction Plan

Effective measures to reduce sediment are those that reduce eroded sediment at the source before the

sediment is transported

off site and into creeks, rivers and lakes. Examples of this approach could include

vegetative cover; storm water management controls; best management practices for urban, agricultural

lands, and construction sites; and land-use changes that will result in a net reduction

of erosion potential.

Accomplished to

Date

The .implementation of various sediment reduction tools and practices such as water and sediment control

basins, stormwater detelition basins, grass waterways, filter strips, stream restoration practices, riparian

corridor protection and restoration, land acquisition and protection and wetlands restoration have been

completed.

As of January 2005, The Piasa Creek Watershed Project has addressed the erosion reductions

outlined in

the following table.

Table

1: Piasa Creek Watershed Project acres benefited, erosion reductions and streambank

tabiJization.

Acres Benefited

1,117

Gully Erosion (tons soil saved)

2,009

8treambank Erosion

(tons

soil saved)

694

Linear Feet Stabilized

22,147

Sourc.e:

GRL

T Status Report:

http://wvvw.greatriverslandtrust.c.iJJn!pnvp_status_

report

anuary_ 2002.htm.

Conclusion

With the information provided in the PCWP overview, the GRLT has provided the required elements to

comply with

the conditions set forth in the mentionedPermit.

Ifyou would need further information about the Nonpoint Source Unit's role in the PCWP development

and implementation, feel free to contact me.

----.-_-----.:'----'----------

-~-

--------

...

_-------------_._--~-"-'---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

PROPOSED EXTENSION OF ADJUSTED

STANDARD APPLICABLE TO

ILLINOIS-AMERICAN WATER COMPANY'S

ALTON PUBLIC WATER SUPPLY FACILITY

DISCHARGE TO THE MISSISSIPPI RIVER

UNDER 35 ILL. ADM. CODE 304.124

AND 304.106

AS 07-2

(Adjusted standard)

Deposition of ROBERT

MOSHER, taken at the

instance of the petitioner, before Dorothy J. Hart,

CSR, RPR, and Notary public, on the 16th day of

August, 2007, at the hour of 11:40

a.m.,

at 1021 North

Grand Avenue East, spri ngfi el d,

III

i noi s.

CAPITOL REPORTING SERVICE, INC.

2021

Timberbrook Drive

springfield, Illinois

62702

217-787-6167

APPEARANCES:

BLACKWELL SANDERS,

BY:

MR. BRADLEY S. HILES

Attorney at Law

720 Olive street

suite 2400

St. Loui s, Mi ssouri 63101

on behalf of the petitioner;

MR. SANJAY SOFAT

Assistant counsel

Division of Legal counsel

Illinois Environmental protection Agency

1021 North Grand Avenue East

springfield, Illinois 62794

on behalf of the IEPA.

INDEX

WITNESS

Robe rt G. Moshe r

Direct Examination by Mr. Hiles

cross-Examination by Mr. sofat

Redirect Examination by Mr. Hiles

Recross-Examination by Mr. sofat

Redirect Examination by Mr. Hiles

EXHIBITS

Deposition Exhibit No.2

Deposition Exhibit No.5

IJLE_NTI FlED

ROB

EKLG,_

Mo~

..HER

having been duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. HILES:

please state your full name for the record.

It's Robert George Mosher.

Where do you live, Mr. Mosher?

Near Pleasant plains, Illinois.

And with whom are you employed?

The Illinois Environmental Protection Agency.

What's your position there?

I'm the supervisor of the water Quality

standards unit with the Division of Water pollution

Control.

who do you report to in that job?

Toby Frevert.

I'd like you to describe your job

responsibilities as the supervisor of the Water

Quality standards Unit.

okay.

The job involves researching and

proposing for adoption through the Illinois pollution

control Board of new and updated water quality

standards.

It also involves the implementation of

those standards through the NPDES permit system and

the 401 water quality standards certification process.

Very good.

when did you start with the

Agency?

November 1985.

could you take us through the various jobs

you've held and give us a ballpark of the years where

you changed jobs?

Initially, I was involved in the Data

Management Unit in the Division of water pollution

control, and I stayed there about six months or so.

then began working in the standards unit, where I

still am.

SO you've been with the Standards Unit for --

21 plus years.

21 years, all right.

Great.

would you please take us through your education

following high school, colleges attended, degrees

obtained, and years those degrees were obtained?

okay.

I got a bachelor of science in

environmental biology and in zoology from Eastern

Illinois university in 1977. In 1979 I got a master's

degree in zoology from Eastern Illinois university.

And then in 1983 I got a teaching certificate from

southern Illinois University at Edwardsville.

Did you teach for a while before you joined

the Agency?

I did at the Junlor college level for about

four years at what was then known as Belleville Area

college.

Sure.

But I never did use that certificate. I

decided -- I got my job at the Agency before I had a

chance to teach at the high school or other level.

All right.

What is your role on behalf of

the Agency with respect to the Piasa creek Watershed

project?

well, back when that began, my role was to

take an overview of the water quality standards issues

in the Illinois-American petition back whenever that

was, 2000.

probably 1999.

'99, yeah.

okay.

That went on for a while.

The Agency was not

ln favor of that petition and we -- I was part of a

team looking at that, and I contributed information on

water quality standards or potential impacts to water

quality standards if that relief was granted. There

came a time in that proceeding when the piasa creek

project was proposed.

And at that point my

participation was reduced drastically to practically

nothing because I -- that was given over to our

nonpoint pollution people, and my services were no

longer needed.

Then when the petition was proposed, the one

we're dealing with now, the renewal or the extension

or whatever you want to call it, I again became

involved in agaln looking at standards issues in that

new petition.

very good.

So your renewed involvement then

occurred in 2006, I take it?

From the time your role diminished or ended,

which was probably ln 2000, through the time you

picked it up again in 2006, did you -- were you

involved in any way in Piasa creek watershed project

or the Alton plant of Illinois-American water company?

No.

Help me understand the different departments

or divisions or divisions of responsibilities, if you

will, between your group, the water Quality standards

Yes.

Unit, and the nonpoint pollution group.

well, I interacted with members of that

group.

I believe they're now called the watershed

something section.

Names change over the years.

But

people that deal with nonpoint pollution problems are

in a separate section from me.

We interact

occasionally when water quality standards issues arise

with agricultural or urban runoff or any of the

nonpoint source of pollution that they deal with.

It's pretty occasional when we interact.

Are there different department heads or

division heads over one and the other?

well, they have a section manager, who his

name 1S Bruce Yurdin.

I believe that's recently

changed with a different job that Bruce has been glven

recently.

But yeah, they're under -- they're not

under Toby Frevert as I am.

They're directly under

Marcia willhite, a bureau chief.

okay.

I understand now.

Bob, there -- and

you may be aware of this.

There was some effort to

estimate the amount of total suspended solids that

would be in the effluent of IllinoiS-American water

company's Alton plant at about the time the original

adjusted standard was granted or immediately following

that time. And I think the figure that was arrived at

was 3,300 tons per year.

Are you aware of that?

well, I'm aware that we were interested ln

what that amount was.

The numbe r, of cou rse, 1 s

somethi ng I'd go back and look in the records, but

I'll take your word for that.

My real question here is, were you a part of

a team that helped set that number of 3.300 tons or

whatever number that was?

BOY, that would have been something that was

just taken from the faci 1 i ty' s records, I woul d guess.

I -- I don't really remember if I was involved with

that back then or not.

Q .

All ri ght.

Have you read the Agency's

recommendation in our present case, Adjusted Standard

07-2

Yes, I read it.

Di d you p rovi de any input into the

preparation of that recommendation?

Yes, I did.

And specifically what was your input?

well, I looked into the USEPA Water Quality

Trading policy.

We had some input into that or some

discussion about that in that document.

I looked into

the U5EPA efforts to establish a categorical effluent

limit for the drinking water supply treatment

industry.

I think those were the two items that I had

direct involvement In.

What do you understand to be your Agency's

prlmary reason for opposing the extension of the

adjusted standard?

I think the prlmary reason would be that

state effluent standards being technology-based limits

should be met in all cases unless there's a really

overridingly important reason that they can't be met.

50 we just believe that those limits are across the

board.

They should be met by everybody.

And when

someone asks for relief from those, there should be a

really good reason why they can't meet those limits.

Do you agree with that reason for opposing

the adjusted standard?

Yeah, I -- I think I do.

of course, I'm well

aware that it's my direct supervisor's wish that that

be the case.

And regardless of my personal feelings,

I would be obligated to follow his direction.

Are you saying that your personal feelings

are to the contrary?

NO.

I'm not saying that.

But it's -- I

guess that's an odd question because you do what your

boss tells you to do unless it's, you know, morally --

or, illegal or morally wrong.

When did you first learn that the Agency

would be oppos1ng the extension on the theory as you

described it that state effluent standards are

technology-based limits that should be met in all

cases?

I don't remember the date, but I do know that

it was when Toby Frevert told me that would be the

position of the Agency.

Let me help with a time frame.

was it after

Illinois-American Water Company filed its initial

petition for an extension of the adjusted standard?

I believe it was.

And was it Mr. Frevert's decision

exclusively?

I'm not pr1vy to that.

All I know 1S that he

I sat down with him in his office and he told me

that that's what he wanted the position to be.

Prior to that sit-down meeting with

Mr. Frevert, do you recall having some discussions

with Illinois-American Water company representatives,

myself included, over the drafting and the ultimate

preparation and filing of the petition to extend the

adjusted standard?

Yes.

About how many phone calls did we have?

There were several. Three or four at least.

During those phone calls did you or anyone

else with the Agency express to Illinois-American

Water company representatives this theory that state

effluent standards are technology-based limits that

should be met in all cases?

I don't believe so, no.

prior to Illinois-American Water company's

filing of the petition for an extension of the

adjusted standard, to your knowledge did anyone from

your Agency tell Illinois-American water company

representatives that state effluent standards are

technology-based limits that should be met in all

cases?

I don't recall anything like that way back

until that stage of the initial petition when we were

taking that position.

And that position was taken after the initial

petition was filed, is that correct?

Right.

From the filing of the initial

petition up until the agreement was reached to do the

piasa Creek project, our position was you should meet

the technology standard.

okay.

And your position changed after the

adjusted standard was granted, is that correct?

Yes.

And then it changed agaln after

Illinois-American water company filed its petition ln

the present case, is that correct? It changed back, I

assume.

well, let

let's clarify what position

means, what that term means here.

We -- I was

participating with a group of Agency employees having

these discussions with you and others from

Illinois-American on the phone.

And that was 1 n 2006?

Right.

working out facts of the case.

never got to the point where we gave you our position.

I think we would have liked to if we'd have seen a

draft before it was filed with the Board, but we

never really reached that.

We -- we had talked and

it's true we didn't talk about the Agency's position

was definitely meeting technology.

we didn't say that

we had some other position. We were just fact-finding

and discussing, negotiating at that point.

well, isn't it true, Bob, that through the

discussions we had over Illinois-American water

company's initial petition, neither you nor anyone

else from the Agency expressed to my client or to me

that the Agency would be taking a position that

technology-based effluent limits had to be met and,

therefore, the Agency would oppose Illinois-American's

position? Isn't that true?

That's true.

why didn't the Agency tell Illinois-American

Water company through those discussions that its

position would be technology-based effluent limits had

to be met?

Because we never got to the point where that

group of employees got what we thought was going to be

the final draft petition in order to bring that to our

management and ask here's where -- you know,

essentially ask our management here's where we are ln

these discussions, what's the direction that you're

gOlng to give us, and then we could get back to you

with whatever that answer was.

well, you did get back to us with some

direction before the initial petition was filed.

Didn't you?

yeah, we had questi ons, we had requests

all along the way.

well, one of your requests was that

Illinois-American would sustain soil savings of at

least 6,600 tons per year. Is that correct?

yeah, we talked about sort of the

maintenance of conditions in the Piasa watershed, yes.

In fact, you, on behalf of the Agency, told

Illinois-American Water company that in order to

support the petition the Agency would need to see the

maintenance of 6,600 tons per year.

IS that correct?

We coul d have used 1 anguage 1 i ke that.

Again, I was working under a certain -- I was under

working under my own direction essentially that was

leading me down a path that we could work within the

prevlous Board relief

Right.

and somehow extend it.

I found out

differently when I did get to talk to Toby Frevert

that, no, that wasn't going to be our path.

So I was

asking questions and talking to Illinois-American

based on my own assumptions to where the Agency would

want to go, rather than what my supervisor's position

was.

MR. HILES:

Can we please have this marked as

-- what are we up to now

Exhibit 5.

(Deposition Exhibit Number 5 marked for

identification.)

Bob, I'm goi ng to hand you a document that's

been marked Deposition Exhibit 5 and ask you to take a

moment

to look at it. And while you're doing that,

I'll predi ct for you my fi rst questi on, whi ch is, have

you ever reviewed this document prior to today?

Yes, I have.

when did you first reVlew it?

It would have been after I had the discussion

with Toby Frevert that said we -- we would not support

the 2006 proposed adjusted standard, and the goal

during that period was to find out what USEPA said

about water quality trading, what policies they had

and whatnot.

And, of course, we found this policy

document and that's when I looked at it.

Let me direct your attention to page 6,

please. And specifically to the text under paragraph

4. Let's start with the first full sentence in

paragraph 4. And I'll just read it.

"EPA does not

support trading to comply with existing

technology-based effluent limitations except as

expressly authorized by federal regulations."

what is the existing technology-based effluent

limit for the Alton plant of Illinois-American Water

Company?

well, that's a questi on you coul d answe r two

ways.

One is that they have an adjusted standard from

the pollution control Board at the present time that

doesn't set any effluent limitations at all. or you

could look at it in terms of what would be the

normally imposed technology-based effluent limitation,

and that, of course, woul d be from Part 304 of the

Board's regulations that sets an effluent standard for

total suspended solids and iron.

So to me what they

meant in this policy was what is existing, in other

words what is normally applied.

So when I read that,

I would have said that this applies to our

technology-based limits and doesn't apply to what --

the relief previously granted.

But in terms of an existing technology-based

effluent limit, would you agree with me that the Alton

plant has always been exempt from Section 304.124,

which I believe is that section of Illinois statute

imposing limits?

Yeah, I'd agree they've never met that

technology-based limit even in their old plant or the

new one.

And they've never been required to as a

matter of law, isn't that correct?

I'm probably not qualified to talk about

matters of law.

But as I understand the regulations

and the relief granted, no, they've never been

required to meet that limit.

I guess my point is, there's -- there is not

now and there never has been an existing

technology-based standard applicable to the Alton

plant.

would you agree with that?

well, there's -- there are standards

applicable in the absence of that relief, so, again,

you know, it's I guess how you want to look at that.

We have lots of water treatment plants that don't have

relief. And, of course, all of them are subject to

those technology-based limits.

But for the Alton plant it 1S not subject to

that technology-based limit, is it?

As long as somebody grants relief, they don't

get a permit that has the limits for TSS.

I wonder if you could read out loud the

second paragraph under number 4?

"EPA will consider including prOV1Slons for

trading in the development of new and revised

technology-based effluent guidelines and other

regulations to achieve technology-based requirements,

reduce implementation costs and increase environmental

benefi ts."

Let's look at the context of that paragraph.

It's really just one sentence.

Do you agree that EPA

is referring to its own regulations with regard to the

statements in that sentence you just read?

It seems -- it seems that they are.

Because

they say they will consider.

They must be referring

to their own regulations.

Let's add that context to the paragraph that

precedes it, still under number 4.

Do you agree that

when EPA is talking with respect to all of number 4

with their -- talking about technology-based effluent

limitations that they're actually talking about

federal standards?

I wouldn't

I wouldn't read that that way.

In the first paragraph they don't talk about -- you

know, it's not implied that they're just speaking of

their own federal technology-based effluent

guidelines.

Did you seek clarification from USEPA about

the meaning?

Yes.

I -- well, I don't -- I didn't go line

by line with them on this paragraph, but I talked to

them about how they regarded trading for

technology-based effluent standards.

who did you talk to?

I talked to Dave Pfeifer.

could you spell that, please?

p-f-e-i-f-e-r. He's at Region 5 USEPA,

chicago.

He may have been the one that referred me to

this document.

Then I talked to George Acevado.

could you spell that last name?

A-c-e-v-a-d-o.

And I had a --

Is he also at Region 5?

Yes, he 1S.

I had a discussion with him

about, you know, how USEPA looks at trading for

technology-based effluent limits.

Anyone else?

That was it.

Let's start with Mr. pfeifer.

What was your

discussion with Mr. pfeifer about how USEPA looks at

trading for technology-based effluent limits?

My discussion with Mr. Pfeifer was pretty

short.

I asked him, you know, where would I find info

on U5EPA's Water Quality Trading policy and, you know,

who should I talk to essentially or where could I find

it on the web site.

And he gave me a web site

address.

I'm pretty sure it was him.

And then

referred me to George Acevado.

50 really your substantive discussion then

was with Mr. Acevado, I take it?

Right, yes.

Please explain your discussion with

Mr. Acevado.

well, I explained to him the petition that

had been filed, and found that he was aware of the

initial petition and the trading that resulted, and

explained to him how we were looking at it currently,

that we didn't like the idea of trading for something

that is a technology-based limit.

And he more or less

said, well, we don't like that sort of thing, either,

and that he didn't really realize that this trading

scheme that is ongoing was a result of relief from

technology-based limits, and that basically the U5EPA

policy supports our position, the Illinois EPA

position.

Did he explain to you how he did not know

that it was relief from technology-based effluent

limits?

No.

But he did tell you that he was aware of the

initial petition going all the way back to when? 1999

or 2000?

well, I don't know how long his involvement

was, but that he, you know, at USEPA had followed thi s

as an example of trading.

For years?

I don't know that we got into any discussion

about how long he was following it.

Let's go back to the water Quality Trading

policy, Exhibit 5, paragraph 4, in the second portion

of that paragraph, the one that you read to us.

uh-huh.

Have you approached USEPA to discuss whether

it might be appropriate to consider the Alton plant as

one of those exceptions mentioned in that second

paragraph?

NO.

why not?

I don't think my job

1S to be an advocate for

remembe r.

To you r knowl edge, Bob, has anyone at the

Agency approached USEPA to discuss whether it might be

appropriate to consider the Alton plant as one of

those exceptions contemplated in the second part of

paragraph 4?

Not to my knowledge.

All right.

Did you explain to him anything

to the contrary and in particular what

Illinois-American water company's stance was?

No.

Did you provide him with a copy of

Illinois-American water company's petition?

No.

someone's special consideration. I got the answer

from George that he gave me and I didn't see any need

to discuss it further with him.

well, in your discussion with George weren't

you ln fact advocating the opposition of my client's

position?

I told him -- I told him what our stance was,

yeah.

I don't

TO your

I don't believe so, anyway.

Are you

familiar

with the term

uncertainty

discount?

No, I

don't believe I

am.

How

about the

term

uncertainty

credit?

NO.

I'm going to

hand you a

document

that's been

previously marked as Deposition Exhibit 2 and ask you,

first of all, have you seen that document before?

officer in our case.

Yes, I have.

It's a serles of questions from the hearing

Have you been asked to respond

to any of the questions in the hearing officer's

order?

Yes.

I'd like you to go through that order and

point out for us the questions you have been asked to

help prepare responses to.

well, I was asked to read through the

questions and provide any information useful toward

specific ones to answer.

answering those.

I don't believe I was assigned

But in other words, I was

told to use my judgment and help out with the

information wherever I could for any of the questions.

All right.

well, let's go through them.

I'd

okay.

That was not one that I was -- thought

I could be helpful in.

I didn't prepare any answer to

that one.

Let's move on to lb on page 2.

Not that one, either.

How about lc on page 2?

Not that one, either.

Same question with respect to ld on page 2.

just like to run through them from the start to the

finish and ask if you have any answers yet or if

you're in the process of formulating answers.

On page

2, this would be question la, do you have any answers

to that or have you begun formulating answers?

well, I think we

I'm positive that we

agree that Illinois-American Alton plant isn't

discharging to a POTW.

MR.

SOFAT:

Bob

Bob, we may literally be on the wrong page

here.

Let's go to the very beginning of the document.

oh, I see.

I'm on page 2 of the document.

I gotcha.

The Illinois-American company

questions.

Yes,

sir.

Nope, not that one, ei the r.

Same question for Ie.

MR. SOFAT:

MR. HILES:

Brad?

Yes.

MR. SOFAT:

I can speed up the process for

you, if you don't mind.

MR. HILES:

I'd love to speed up the process.

MR. SOFAT:

I did not ask them to even look

what he's focusing on, so -- you can go through the

whole if you want but -- or you can ask him in

general.

MR. HILES:

Can we just establish then that

Mr. Mosher is not going to provide input with respect

to the questions posed to Illinois-American Water

company?

did you

I think maybe once or twice I had a little

interjection type thing. And I -- for f -- for If on

page 2 I may have said something like keep in mind

that USEPA'S water Trading policy doesn't allow

trading for technology-based limits.

You know, it was

kind of a little thing to whoever was answering that

This is what -- Illinois EPA questions is

MR. SOFAT:

Can I -- Bob, are you gOlng to --

at these.

MR. SOFAT:

Yes.

If there's anyplace else in the questions

posed to Illinois-American Water company where you

have provided input or you intend to provide input,

I'd like to know that right now.

whatever you want to do because --

Later on when they answered the question, we

might have a rebuttal or something.

MR. SOFAT:

Right.

That's the difference.

okay.

Anyhow.

So do you want me to look through the rest of

the Illinois-American questions?

question, as long as we're talking about USEPA'S Water

Quality Trading policy, make sure you remember that

that policy says you shouldn't trade with

technology-based effluent limits. It wasn't an

answer. It was just like a little comment to try to

help someone else answer.

MR. SOFAT:

And why would somebody be looking

at Illinois-American's questions?

well, I don't know.

I just thought we

might --

MR. SOFAT:

would.

okay.

I would.

Brad, just go ahead and do

well, I can say for sure we don't intend to

provide any input on Illinois-American's questions

because I heard what my attorney just said.

MR. 50FAT:

You can always help me with the

cross-examination questions.

Right now --

Right.

MR. 50FAT:

-- focus on opposing counsel's

questi ons, what are they sayi ng -- do you intend --

whatever the question was.

So, let's see.

I didn't have any on page 3

of any of those questions for

that are on page 3,

and no input to any questions on page 4.

And now we're into the Illinois EPA-directed

questi ons.

Yes.

So let's -- I'm gOlng to just pose the

same questi on, Bob, wi th respect to the questi ons

directed at Illinois EPA, beginning with question la.

okay.

The Agency does agree that

Illinois-American Alton does not discharge to a POTW.

In our filing we referred to potential future

federal categorical effluent limits, so that was

something I remember commenting on that the Board

you know, are they referring to existing or potential

future federal categorical effluent limits.

b --

Just so we're clear on that, there 1S no

federal categorical effluent limits applicable to the

IllinoiS-American water company's Alton plant, are

the re?

As I understand from our Permit Section staff

that I believe I heard them refer to just a narrative

statement about best degree of treatment or best

reasonable treatment being what should be applied, but

that was some sort of a narrative.

Bob, I'm talking about federal categorical

effluent limits.

Right.

Are you aware of any federal?

well, there's no specific federal categorical

effluent limits for this category of discharger.

That's correct.

How about Ib?

Maybe the best way to go at Ib

Yes, I

have.

Tell us

about

your

discussions

with

Mr. Bone.

He's

washington.

got

his

name

and phone

number, I

believe,

off of

the

web site

from

USEPA.

is to ask you if

you've

had discussions with Mr. Tom

Bone of USEPA's office of Science and Technology?

called him and asked him if he could update me on

U5EPA's efforts to develop federal categorical

effluent limits for the drinking water treatment

industry type discharger, and he filled me ln on where

they were at and gave me some facts that I believe

show up in our Agency response to the petition. And

that was about a ten-minute conversation and that was

the only time I've talked with him.

okay.

so is it you r testi mony that the

information that is in the Agency's recommendation

represents all of the information that Mr. Bone

provided to you that day?

It's not a word-for-word transcript of what

we talked -- or, our conversation, no.

And I'm not looking for that, either, Bob.

I'm just looking for the general subjects that were

addressed.

well, my intention was to summarlze what he

told me and that summary is pretty much what's in our

our response.

Did he tell you that the Agency would -- that

U5EPA would be developing categorical effluent limits

for sources which do not discharge to a POTW?

Yeah.

Did he indicate which pollutants would be

included ln the categorical effluent limits?

He definitely talked about total suspended

solids being one of those pollutants that they were

working on development.

He did tell me that there was

no way to predict what list of pollutants they would

end up with, but certainly total suspended solids was

one of those that they were looking at.

So he couldn't confirm to you whether there

would, in fact, be a categorical effluent limit for

TSS, is that correct?

Yes.

He confirmed -- or, he made it plain to

me that he couldn't confirm anything from a developing

project, that until the formalities were complete that

there were no guarantees of what the proposed limit,

if any proposed limit, would be put forward.

Did you discuss with Mr. Bone the federal

Agency's consi de rati on, if any, of offset c redi ts in

the compliance scheme in the event categorical

effluent limits were developed?

I didn't talk with him about that subject,

no.

Do you recall if anyone of you rai sed it

during the conversation?

no.

TMDL program.

Let's move on to question 2b, please.

Have

you provided comments or do you intend to provide

comments on question 2b?

NO.

That should be up to the people ln our

don't believe

was aware of that at all,

well, I think we've covered questions la, b,

and c, unless there's anything else you can tell me

about your discussions with Mr. Bone that you haven't

told us already.

No, that's pretty much it.

All right.

Let's move on to question 2a.

This isn't a question that I -- I commented

on, I don't believe.

Are you planning on providing comments on

question 2a?

I don't believe so, no.

Are you aware that headquarters

representatives have, in fact, stated that they are

considering offset credits and trading credits in the

compliance scheme in the event they develop

categorical effluent limits for water treatment

plants?

I believe I did comment on that one.

what are your comments with respect to

questi on 2b?

That I wasn't aware of any other discharges

that use trading and that my only knowledge of anyone

planning to use trading was with nutrient trading, and

then I cautioned that the standards that would

possibly bring about someone wanting to use trading

for nutrients weren't -- those standards were not

formulated yet and were quite a ways from being

finished or proposed.

So that that was planning that

was ln a very early stage kind of anticipation.

when you say considered or proposed, would

The state

1 eve 1 .

Any

other

comments on

NO.

Let's move

2c,

please.

That

was

one

didn't

have

any comments

on.

Then

we move

question

3, which

has

that be at the state level or the federal level, Bob?

great deal of information preceding the actual

questi on.

Yeah.

AS I read the question, are there any

federal effluent guidelines, this -- and we've covered

the fact that there are no federal categorical limits

presently, but when they mention guidelines, that may

be where I heard discussions from our permitting

people that their belief -- this is just -- I guess

this is hearsay, but their belief was that there was

some sort of a statement in federal guidelines that

the federal regulations encouraged states to apply

limits that are reasonable based on available

technology to dischargers that aren't covered by

federal categorical limits.

SO are you providing a comment on question 3

to that effect?

I don't really remember if I have commented.

It seems like a question that's best left for the

experts in federal effluent guidelines to answer.

Bob, have you reviewed EPA'S 1996 Draft Water

Quality Trading policy?

I don't believe so.

well, if you'll turn to page 6 ln your

exhibit

Back a page to --

Yes.

This is in the questions posed by the

hearing officer. Just past the midpoint of that page

do you see that paragraph there:

"Although IEPA

Assuming that the hearing officer has accurately

quoted from EPA's draft policy of '96, if you know,

why did the Illinois Environmental Protection Agency

support Illinois-American Water company's petition in

19 -- pardon me, in 2000 with the existence of this

draft policy statement in '96, which is essentially

the same as the final policy statement in 2003? DO

you know the answer to that question?

No, I don't.

Have there been any discussions -- have you

And then the hearing officer quotes from a

1996 policy statement, which is the indented quote,

and I'm going to read it to you.

"To take advantage of trading, a point source

must be in compliance, and remaln in compliance, with

applicable technology-based limits."

DO you see that?

uh-huh.

That quote was pulled from EPA's Draft policy

on Water Quality Trading which existed in 1996.

question to you is this, if you know -- let me back

up.

states

"? Do you see that paragraph?

uh-huh.

discussed this with any other staff members at

Illinois EPA? And the point I'm driving at here 1S,

the policy that your Agency is grabbing onto for its

support, the 2003 water Quality Trading policy, has

not changed since 1996 on this issue of meeting

technology-based effluent limitations.

Have you had

any discussions with other staffers at the Agency

about that?

well, I had discussions trying to re-create

Agency thinking or what we were aware of from the time

1n '99 when the proposal for the trading came forward.

Yes.

And those discussions were basically to say

I, Bob Mosher, was not in the thick of things at that

point.

so I don't know what Agency thinking was that

resulted in us being agreeable to the trading project

and the eventual Board relief. That's -- that's my

extent.

I wasn't in those discussions. So I don't

know if people were aware of the '96 draft policy or

not.

Do you know if anyone from the Agency, prior

to late 2006, contacted Illinois-American water

company at any level just to tell them, hey, this

offset project that's the basis of your adjusted

standard is now out of favor with the Illinois

Environmental Protection Agency because of this TBEL

issue?

I don't recall anyone making that contact.

Do you recall anyone at the Agency just

internally, whether a contact was made with

Illinois-American Water company or not, concluding

prior to late 2006 that the TBEL issue you've been

talking about here was inconsistent with this adjusted

standard?

I'm not aware of any contact made like that.

Now, I'm not talking about outside contact.

I'm just talking about internal discussions at the

Agency along the lines of this adjusted standard here

is inconsistent with EPA's trading policy because of

the TBEL lssue.

Do you see what I'm driving at?

Yeah.

And I mean I don't recall any

discussions of any kind before we received the first

of the draft peti ti ons, you know, in 1 ate '06 or

whenever we got the first one.

And then up until the

time of Toby Frevert's decision that we weren't going

to support, I don't remember anybody bringing that up

with Illinois-American at all.

All right. So really, the first instance at

which the TBEL issue was raised was the instance

raised by Toby Frevert in late 2006.

IS that correct?

Right.

I think his instruction was to find

out what federal policy says.

And then we looked into

the document here, Exhibit 5, and saw the wording

about technology-based limits.

Do you recall attending a meeting with

Mr. Frevert and myself and some representatives of

Illinois-American Water company in December of 2006?

There were other Illinois EPA staff members present as

well .

I know there were some meetings I didn't

attend, and I'm trying to remember if I was in the

room when Toby was -

was there.

I really don't

remembe r.

well, let me -- let me identify for you at

least some of the people who were present when I was

present.

It was Mr. Frevert.

It was the president of

Illinois-American Water company, Terry Gloriod, and

one of the attorneys from Illinois-American Water

company, Tracy Elzemeyer.

okay.

I think I remember that meeting.

All right.

It was in the sam cody room.

Does that help

you?

I don't remember your meeting room names.

Okay.

But that 1S the meeting.

There was only one

meeting in which Mr. Gloriod and I attended with you

and Mr. Frevert.

TO my knowledge there was only one

meeting.

I want you to focus on that meeting.

Do you

recall at that meeting that Mr. Frevert's position was

that Illinois-American Water company would need to

continue its financial contributions at a level of

$415,000 a year in order to garner the support of

Illinois EPA for extending the adjusted standard?

It's really hard for me to remember what was

said at that meeting.

I -- I want to -- I don't

really have a clear recollection.

well, let me ask you specifically if you

recall at that meeting Mr. Frevert telling

Illinois-American Water company that technology-based

effluent limits had to be met before the Agency would

support extending the offset, extending the adjusted

standard?

I'm sorry, I just don't have strong

recollections of what was said or what was not said.

I mean I can't tell you that he -- he did or didn't

say that. sorry.

well, can you tell me if the Agency's

position with respect to TBELs was adopted after that

meeti ng?

How about your phone call with Dave pfeifer

at Region 5, was that before or after that meeting,

Bob?

I can't tell you.

I'm sorry.

How about the first time you read USEPA's

Water Quality Trading policy, was that before or after

the meeting?

I'm sorry, I don't remember.

Referring back again to the hearing officer's

questions, which is Exhibit Number 2 in front of you,

I'd like you to focus your attention on page 6 near

the bottom. There's a paragraph that begins with:

"The issue is similarly reiterated ..... Do you see

that?

Yes.

I'd like you to read that through the bottom

of that page. Just read it to yourself, please.

Dkay.

after.

I don't remember whether it was before or

I'm sorry.

Electronic Filing, Received, Clerk's Office, August 30, 2007

Would you agree with me that that text

concludes that the TBEL issue here focuses upon

federal technology-based limits?

You know, I'm -- I'm not certain.

I think it

could go either way.

I'm not certain that they mean

-- they say:

" ...

point sources are required to

comply with their technology-based limits ... " So

their limits could be based on federal categorical

limits or state effluent standards. So I don't think

I can agree with your statement.

I think there's room

there to interpret that as could be state limits.

All right. Let's explore that a little bit

further.

Fi rst of all, I want to be real clear about

one thing. It is my client's position and my position

that the reference in this handbook and in the federal

water quality trading guidelines refer to only federal

categorical effluent limits when referring to TBELS.

I just wanted to be clear about that.

uh-huh.

That's not a question.

I just want you to

understand where I'm coming from.

okay.

And you have just testi fi ed that it can be

interpreted differently.

Here's what I want you to

Electronic Filing, Received, Clerk's Office, August 30, 2007

tell me on the record.

Who at EPA told you that

2 Illinois EPA was at liberty to utilize the state's

effluent standard for TSS in application of the

federal water Quality Trading policy? Because, Bob, I

don't see those words in the policy.

Let's start with

that.

DO you see those words in the policy where the

state is given liberty to apply its own effluent

standards? I don't. Do you?

Brad, I think Bob has answered

MR. SOFAT:

that question.

MR. HILES:

I don't think he has.

I want to

make it clear.

well, certainly, states are able to set their

own technology-based limits. They can do it across

the Board, as the Illinois pollution control Board has

done, that all dischargers are subject to these

limits. They -- obviously, those limits cover

facilities that have federal categorical limits and

those that do not.

Our limits can supersede the

federal categorical limits.

My question to you is, what is it about the

federal Water Quality Trading policy which you and

your counsel are relying upon here to try to defeat my

client's efforts to extend the adjusted standard, what

is it about that Water Quality Trading policy that

tells you you are free to use state-based limits when

applying the federal policy?

I don't believe we

we ever apply the

federal policy.

I think we try to enact or prevent

regulations from being enacted that would run up

against federal policy. I think that's all we ever

wanted to demonstrate here was that the state can --

the Illinois pollution control Board can do whatever

it wants to, I guess, but they're going to have to

answer to federal oversight, federal displeasure. We

don't want to do that.

So we try to do things that

are consistent with our policy and their policy.

Do all states have effluent limits for TSS?

I don't know.

well, how do you answer the question for

those -- for a state that doesn't have a TSS effluent

limit? How do you apply the federal water quality

trading guideline to that state?

MR. SOFAT: objection. That's outside his

personal knowledge and even job description.

MR. HILES:

Let me -- let me rephrase the

question.

IS it your testimony that if the state of

Illinois did not have a TSS effluent limit, is it your

testimony then that under the federal water Quality

Trading policy offsets could be utilized by

Illinois-American Water Company?

Let me withdraw that question and state it

differently.

What is it in the federal water Quality Trading

policy that specifically says Illinois's effluent

standards should be applied and technology should be

utilized to meet those effluent standards? what is

it?

I believe that the federal goal through

requiring certain technology-based limits be met by

certain industries was to make sure that the best

reasonable treatment would be applied everywhere.

I'm

sure the Feds -- the USEPA wants treatment applied

everywhere.

They haven't covered everything with

their categorical limits and our state has filled the

gap with our effluent standards.

so I don't see why

they would -- the USEPA would want to ignore our state

limits.

well, what about those states that don't have

limits?

MR. SOFAT:

objection.

I don't know that there's states that don't

have limits.

How do you

MR. HILES:

well, no, this witness has drawn

a conclusion that the federal agency wants uniform

implementation. And some states don't have effluent

limits for suspended solids.

MR. SOFAT:

Brad, he's not an attorney.

mean

MR. HILES: This isn't a legal conclusion.

I'm asking him if he's reached a conclusion

MR. SOFAT:

It's an interpretation of the

legal documents you're talking about.

MR. HILES:

He has made an interpretation of

the federal water quality -- the federal water trading

policy, that it needs to be applied from coast to

coast.

He's determined that's what the Feds want.

And I'm asking how he could reach that conclusion when

some

states don't have effluent limits for water

treatment plants on total suspended solids.

MR. SOFAT:

That is very specific to the

federal guidance document.

Bob--

MR. HILES:

And this witness can answer it.

He's drawn a conclusion that the Feds want

would apply in a case where states doesn't

Right.

And that's what I'm doing.

But he does not know how Feds

How can it be consistent?

Brad, that's his V1ew.

And

I'm entitled to explore that

consistency.

MR. SOFAT:

MR. HILES:

MR. SOFAT:

MR. HILES:

V1ew.

MR. SOFAT:

MR. HILES:

MR.

SOFAT:

Right.

And you --

that

particular state doesn't have the effluent

MR. HILES:

I'm asking him how he has

concluded that the Feds want consistent application

coast to coast when, in fact, some states don't have

effluent standards for TSS at water plants.

MR. SOFAT:

okay.

Bob, can you give your

basis of your interpretation?

And that's where I'm going to ask him to stop.

Because he can say this is how I conclude and I'm okay

with that.

But other than that, you know, what will

happen if a state doesn't have a standard which says

Fed s, you know, pre fer non poi nt sou r c e pro

e c t, t hat's

outside his -- I mean you can ask him how he concluded

whatever his position 1S.

I'm okay with that.

So --

and his op1n1on 1S not a legal op1n1on to begin with.

MR. HILES:

This doesn't call for a legal

0p1n1on.

okay.

In my thinking on this matter, number

one, I'm not aware of other states' TSS standards.

them.

It never entered into the thought process. The

process was that Illinois has a technology-based

standard.

And in my conversation with George Acevado,

who I believe was aware -- he said he wasn't before,

but as I was talking to him, he was aware that that

was an Illinois technology-based standard, and he said

I agree with you, federal trading policy wouldn't

support trade under those circumstances. That's the

basis of -- I'm not

I'm not an expert on USEPA

water quality trading. That's why I was talking to

George, so he could enlighten me.

well, let me explore with you -- and again,

this 1S in connection with your discussion with

George.

Did you share with George that there were

opposing views? And specifically, that there were

oppos1ng views that held that the federal Water

Quality Trading policy applied to federal effluent

limits on this issue of TBELs and not to state limits?

just don't know.

I don't know that some don't have

this

AS I read that quote, I am not convinced that

it only means federal technology-based limits.

Read the parag raph below it, Bob.

That -- that is the Board's words?

Yes.

well, so the Board thinks that the handbook

closing to this pretty soon.

MR. HILES:

My question stands.

Go ahead, Bob.

MR. SOFAT:

Bob, go ahead.

I know -- we can go back to the transcript

discussion has been asked before.

Bob, go ahead and answer this time and after

No, he has not.

MR. SOFAT:

He has.

we need to have some

Did you discuss that with him?

NO.

Do you at least acknowledge, Bob, that at the

end of page 6 the citation from the Water Quality

Trading Assessment Handbook sets forth one of those

opposing views?

Do you acknowledge that?

MR. SOFAT:

Brad, he has answered that

question before.

MR. HILES:

refers specifically to federal.

Is that what you want

me to say? It seems to me that the Board --

Bob, I just want you to acknowledge that

there are opposing viewpoints on this issue, my

clients included. And my real question to you on this

is, did you present opposing viewpoints to George and

engage 1n a discussion with him about that?

of course, I didn't have this Board viewpoint

when I talked to George.

And, no, I didn't raise any

oppos1ng viewpoints with George.

I don't know if we ever got to your ultimate

answer to the question, which is at the top of page 7,

Bob.

what 1S your answer to that question?

I think I did answer that, that that one

seems to be in the domain of the -- our experts from

the permit Section that are familiar with the federal

effluent guidelines, general category of --

Let's move to question 4a.

Have you prepared

a response to that question or are you 1n the process

of preparing a response?

I think I already mentioned that when I

talked to George Acevado, I did mention specifically

Illinois-American Alton situation with the renewed

petition for adjusted standard.

And in that regard I

prepar1ng a response to 4b?

I think the gist of this question 1S some

years ago USEPA was doing a survey about water quality

trading, and I believe I talked to someone about the

Illinois-American, just gave them some just basic

information about what it was all about, long before

'06, you know, when the draft petition was submitted.

Am I aware of any feedback from US EPA?

You know, they

might have given me some feedback during that

conversation, like, oh, that's interesting and we want

more information.

And I think I passed that person

I don't remember who I was talking to.

I think I

passed them on to probably Scott Tomkins or Amy

walkenbach.

So I guess that's -- that's some

feedback.

That's all I can think of.

Now, you've testified here about contacts

that you initiated with USEPA concerning this adjusted

standard.

Has USEPA ever initiated any contacts with

you concern1ng the adjusted standard? And in

particular, has anyone from USEPA ever told you that

your Agency needed to oppose it because of the TBEL

issue?

No.

In this survey, which is the only time I

can remember talking to USEPA about this trading until

very good.

Let's move on to question 5.

Have you prepared a response to question 5 or do you

intend to prepare a response?

the current petition came forward, was that survey.

And I call it a survey.

It was somebody wanting to

know about trading and offsets in our state. And I

said, well, the only thing I know of is this

Illinois-American thing and gave them a few facts

about it and said I think, you know, if you really

want to get some details, you need to talk to somebody

else.

No.

Not 5a.

And not 5b.

Not -- no, not 5b,

either.

Do you believe that the tons of soil saved ln

the piasa Creek watershed project as reported by Great

Rivers Land Trust have been exaggerated?

NO.

Do you have any reason to believe that those

tons of soil saved reported by Great Rivers Land Trust

with respect to the piasa Creek Watershed project are

anything other than absolutely accurate?

well, I -- from my discussions with Amy

walkenbach and scott Tomkins, I'm aware that they're

really predictions of soil savings. They're not

measured soil savings.

But Amy assures me that

everything they've investigated leads to an accurate

prediction, uS1ng established methodologies to do the

predicting. 50 I don't have any doubts really that

they're achieving what they say they achieve.

Is it your understanding that what they say

they are achieving at this point is already an offset

1n excess of two to one? Do you understand that?

Yes.

Regardless of disagreements you and I may

have, Bob, about whether this TBEL issue even applies

to our case, let me ask you personally, why would you

want to end an offset project that's exceeded two to

one and go to technology-based treatment? My specific

question for you is, how's that better for the

environment?

personally, I don't want to see it ended

necessarily. It's probably good for the piasa

watershed.

How about the Mississippi River, which 1S

what the piasa watershed feeds?

Yeah, right. All soil conservation projects

are good and do good.

I take direction from Toby

Frevert, and if he directs me to take a stand and, you

had anybody else tell me differently.

50 I'd like you

to tell me why it's better for the environment to

return more solids to the river.

Can you?

You know, there were discussions back in '99

about, you know, what drawbacks a discharge without

treatment from Illinois-American Water was going to

know, disagree with something on a certain basis, then

that's my job to do so. 50 that's why I participated

and gathered facts and was part of the team that put

together the Agency response.

It's an odd question

that you ask me personally.

I mean

You're the supervisor of the Water Quality

Standards Unit, and I'd like to know what the

supervisor of the Water Quality Standards Unit thinks

about the environmental benefit of an offset project

that eliminates twice as many tons of solids entering

the Mississippi as my client discharges into the

Mississippi. And specifically, I'd like to know how

you think it would be better for the environment if

that offset project were scrapped and we didn't have

the two to one reductions and instead just went to

technology-based treatment.

Because in my crude math,

that would mean that we would return to depositing

more solids into the Mississippi River.

And I haven't

have on the Mississippi, and there are some drawbacks.

And we explored those then that, hey, that's a nasty,

muddy effluent that shoots out a plpe into the rlver

and stuff isn't going to want to live there. And that

removes habitat from the rlver and lessens the quality

of the rlver ln that locality.

Bob, my client commissioned a study by EN5R

to look into that and that was fully vetted before the

Board.

Right.

And your Agency concluded when the Piasa

Creek watershed project came forward that that was no

longer an issue. The so-called muddy footprint is

what you're talking about.

well, that doesn't mean that muddy footprint

doesn't exist or doesn't cause any harm.

It just

means that back in '99 the choice by the Agency was to

overlook that.

SO are you telling me it's better --

So you're asking --

It's better to just treat it and not do

offset projects?

well, you know, what I personally think is

both things would be the best for the environment,

But that's not my question to you.

You're asking me to weigh the balance and --

gl ven my, you know, knowl edge that, you know, I'm not

an expert 1n nonpoint source, I wish I had the

knowledge that would be able to compare is nonpoint

source soil particles from ag fields any less harmful

than those particulates from a point source like

Illinois-American. Given my -- my frame of reference,

it seems to me that the offset was a benefit to the

environment, net benefit.

Are you familiar with the Revised universal

Soil LOSS Equation?

No, I'm not 1n any meaningful way, no.

The acronym is RUSLE.

I've probably heard that, but I don't know

much

about it or anything about it, really.

Are you familiar with the term retirement

credits with respect to offset projects or trading

projects?

Not in any meaningful way.

What do you unde rstand it to mean?

That's some system that the nonpoint source

treat it and do conservation work.

best.

That would be the

people can use to gauge effectiveness of projects.

MR. HILES:

sanj ay, do you have a copy of the

Agency's recommendation that I can show the witness?

MR. SOFAT:

uh-huh.

can we take a break?

(A recess was taken.)

The recommendation, Bob, 1S 1n front of you

break.

MR. HILES:

Sure.

Let's take a ten-minute

here.

It has not been marked as an exhibit.

And I'd

like to direct your attention to

I think it starts

on page 8, if you can

nd page 8.

I have just a few

questions. There's a table there that begins at the

bottom of page 8 and continues on to page 9.

can you

provide any input for that table?

NO.

other than I suggested that some of

these facilities be investigated, but the actual

information in the table was put together by someone

else.

why di d you suggest that some of those

facilities be investigated?

Because they were facilities that met our --

the Board's total suspended solids effluent limit and

had water supplies or uses of public waters,

discharged into those waters and also used those

waters for their purposes.

And I thought that would

be an interesting thing to explain.

All those particular facilities draw their

water from lakes.

IS that correct?

Yes.

Isn't that like comparlng apples and oranges

when you compare water drawn from a lake, which is a

reservoir, to water drawn from the Mississippi River?

I mean aren't the conditions substantially different

when it comes to a water supply?

well, there are some differences, but there

are some similarities, also. All of those are public

waters.

Lakes and rivers benefit from nonpoint source

controls. They have similarities.

Are you aware that several of those water

treatment plants use lime-based treatment?

I don't think I knew that, no.

More than half of them do.

Let's talk about

that.

when 1 i me-based treatment is used, that

actually adds solids to the waste stream, does it not?

Yeah, it does.

And were you aware that IllinoiS-American

Water company is not using lime-based treatment at

Alton?

Does that still make it a comparlson of

apples and apples for you, knowing that some of those

water plants use lime?

They don't discharge particulate lime above

the effluent standard.

But if they were -- if they were not treating

their effluent, Bob -- in other words, I'm trying to

compare it now to what's happening at Alton.

Alton

doesn't treat its effluent, so if these other plants

did not treat their effluent, wouldn't they, in fact,

be adding considerably more solids to their waste

stream than we have being added at the Alton plant?

Relative to the amount of solids they start

with, yeah, you're probably right.

And let's talk about sedimentation at those

lakes, those reservoirs. without conservation

measures there would be considerable sedimentation,

wouldn't there, in the absence of treatment by those

water plants?

I don't know if I understood that question.

could you say it again?

well, let's start with the Alton plant. We

know that the wastewater is not treated.

I was aware of that, yeah.

It's

discharged untreated to the Mississippi River. And

that results in some sedimentation. would you agree?

Yeah.

Now, let's compare that degree of

sedimentation with the degree of sedimentation that

would occur at these lakes, these reservoirs if those

water plants did not treat.

okay.

It would be considerably greater ln the

reservoirs than it would be in the mighty Mississippi,

wouldn't you agree?

Locally, yes, there would be more local

sedimentation.

And in fact, wouldn't you agree with me that

without some dredging or soil conservation measures,

the sedimentation in those lakes would be so great

that the water treatment plant's source of clean water

would eventually become threatened?

That's -- that's correct. That's why we have

the effluent standard, I think, is to guard against

that sort of thing.

But now let's look at the Alton plant. To

your knowledge has the Alton plant's source of clean

water been threatened in any way despite their direct

di scharge?

well, they discharge downstream of their

And the

rlver is

moving

also,

isn't

it?

Right.

it's movlng

that

sediment,

correct?

Correct.

whereas, 1 n the

lake

environment

there's not

intake at Alton, so there isn't any way they could

th reaten thei r intake.

a source that moves the sediment out of the lake,

absent some efforts taken by mankind.

Is that

correct?

well, sediments can move out of the lake when

there's high water conditions, but probably that's

offset by increased sediment load during those

conditions.

But, yeah, you're right.

Most of the

sediment discharged into a lake would stay there.

Bob, were you aware that in each of the six

instances discussed in the Agency's recommendation

funding was provided to the point source by either

federal or state or in some cases both governments to

assist with the soil conservation efforts undertaken

by those point sources?

I wasn't aware of where the funding came

from.

Bob.

MR. HILES:

MR. SOFAT:

I have nothing further.

I have a couple of questions for

CROSS-EXAMINATION

BY MR. SOFAT:

Bob, could you for the record describe how

the Agency applies its water quality standards and

effluent standards to an NPDES permit application?

Yeah.

well, effl uent standards have to be

met by any discharger unless the standards exclude

certain ones. Water quality standards are quite

different.

YOU

you can apply water quality-based

effluent limits to permits in order to ensure that

water quality standard ln the receiving stream is met.

What di ctates 1 n te rms of whet he r it's the

effluent conditions or the stream conditions that

triggers you to include water quality standard limits

or technology-based standard limits? Do you

understand my question?

MR. HILES:

well, I'm gOlng to object to the

question actually, because I believe there's no

foundation laid for this witness to determine what

goes in permi ts.

MR. SOFAT:

AS Bob has testified, one of his

roles at the Agency is to assess -- implement the

Board's regulations, which includes water quality

standards and technology-based standards and that is

part of his regular job that he does when he informs

the permit Section what standard goes into the permit.

So it's part of his day-to-day job.

MR. HILES:

I still don't believe that this

witness has laid a foundation on his drafting of

permit conditions.

Bob, can you describe your daily role at the

Agency?

What do you do?

well, the two major things that I do is

develop and propose new or updated water quality

standards to the Board for their adoption, and the

other main category of what I do is to implement

existing standards in NPDES permits.

What do you mean by implementing those

standards?

I have input as to what permit limits will be

based on those standards.

Can you describe in detail what that role is?

Yeah.

The 304 section of the Board's

regulations has the effluent standards. That's really

pretty straightforward and doesn't take much

interpretation. The standards are laid out. They are

applied as indicated. It's quite a bit simpler than

the water quality standards from 302 of the

regulations, which we have to determine do we need to

regulate a certain parameter in a permit to protect

the water quality standards in the receiving stream.

We do a reasonable potential analysis.

Is there a

reason to believe, you know, we need a limit, if the

substance 1S present in sufficient quantities or not.

Mixing zones enter in how water quality standards are

implemented in NPDE5 permits.

And of course, mixing

zones have nothing to do with effluent standards

whatsoever.

SO 1n a given permit can you have both water

quality standards and technology-based standards?

Yeah.

what happens if a particular pollutant has

both technology-based standard and water quality

standard?

The most stringent side of the standards 1S

applied.

Do you know if T55 has a water quality

standard?

NO, it does not.

DO you know if T55 has a technology-based

standard ln the Board's regs?

Yes.

tell me whether or not Mr. Bone said that they would

be considering effluent limits for T55 in their final

And if a discharger has T55 ln their

effluent, how would you recommend the permit limit

should be written?

It is strictly taken out of the 304

regulations.

The numbers are provided by the Board.

The particulars of which dischargers get which limits

are provided by the Board. It's very straightforward.

Do you have the authority to decide when to

apply and not apply a technology-based standard

written in a permit?

NO. There's no discretion.

50 unless the Board has granted regulatory

leave, whether it's a water quality standard or a

technology-based standard, do you have to consider

those technology-based limits in the permit?

Ye s.

And let me

discussion with Mr.

now

switch years to your

Bone.

For the record, can you

rule?

Yeah.

I mean my discussion with Mr. Bone was

that TSS was the primary parameter that was being

looked at.

I mean, obviously, that's what is found ln

these types of effluents, so our discussion really

revolved around TSS.

And this is in context of Illinois, ln

context of you recommending what the permits limits

should be.

If somebody says what are the existing

technology-based limits for TSS, what would be your

answer?

15 milligrams per liter as a monthly average,

30 as a daily maximum, based on the averaging rule in

304.

MR. SOFAT:

Thank you.

MR. HILES:

A few follow-up questions.

REDIRECT EXAMINATION

BY MR. HILES:

And your recommendation, of course, would be

no limits in the event that that particular point

source was subject to an adjusted standard granted by

the Illinois pollution control Board. Am I correct?

If that were the case, no one would ask me.

But I would -- if asked, I'd say look at the Board

relief and that tells you what to put 1n the permit.

Q .

All ri ght.

So these questi ons that Mr. Sofat

has asked you have actually been questions that would

-- that might be applied to a company that did not

have an adjusted standard.

My question for you 1S,

where an adjusted standard exists, as my client has,

and that standard exempts compliance with the TSS

effl uent standards, there woul d, in fact, be no

technology-based limit applicable to that plant, would

the re?

No, no limit at all.

MR. HILES:

Thank you.

MR. SOFAT:

I have a follow-up question.

RECROSS-EXAMINATION

BY MR. SOFAT:

Bob, are you aware that the adj usted standard

that applies to Illinois-American expires on september

7, 20077

Yes.

How would you recommend your permit Section

given that and the circumstances are that the Board

has not extended the adjusted standard? what happens

at that time? On september 8th, 2007, a Permit

Section -- a permit engineer came to you and said,

Bob, what do I do about TSS for Illinois-American, how

would you consider the status of the adjusted standard

that was granted to the IllinoiS-American but it

expired -- it is expiring on september 7th?

MR. HILES:

well, I object to the nature of

the hypothetical question. particularly in light of

the fact that the Board has said it will attempt to

rule before the expiration or it will grant

retroactive relief if it rules after the expiration.

MR. SOFAT:

And my question goes to your

question that if the adjusted standard has been

granted. And adjusted standards usually are never

sunset.

The Board has come up with this sunset

provision that, okay, adjusted standard usually means

it's adjusted forever.

In that case Bob will never

have to look at this issue.

However, ln case of an

adjusted standard that is expiring september 8th

and that's why I'm using it as a hypothetical.

I can

take out Illinois-American out of the reference.

But my question is, if the Board's adjusted

standard expires because Board say so, then how do you

-- do you still consider the adjusted standard to

recommend your permit limits?

NO.

MR. SOFAT:

Thank you.

That's all.

REDIRECT EXAMINATION

BY MR. HILES:

SO 1 sit you r testi mony then that you woul d

lmpose technology-based limits immediately on

september 8? You would tell the permitting section

impose those technology-based limits starting

septembe r 8, 20077

well, I would have a discussion with permit

Section to talk about compliance schedules.

In fact,

they would probably have that discussion among

themselves without my participation necessarily. But

a compliance schedule is sometimes a possibility.

I'm

not really expert in knowing when or where compliance

schedules are allowable.

But that's an option or an

alternative to instant compliance when the Board

rel i ef expi res.

well, in fact, instant compliance is

impossible, isn't it?

Yeah.

Based upon what you know about the Alton

pl ant, Bob?

Right.

But there agaln, I -- not being an

expert in compliance schedules, I don't know what the

limitations are for the Agency to grant one ln this

case.

well, did you suggest it that someone else ln

the Agency tell them that?

Not to my knowledge.

And ln the meantime my client -- strike that.

MR. HILES:

I have nothing further.

Bob, you have the opportunity to read the

transcript of this deposition and read it for errors

in the words but not in the substance.

If you do so,

well, let me ask you this.

Let's roll back

the clock to any year.

I'm going to let you pick the

year, but right now I'll propose 2002.

okay? My

client is paying $415,000 a year for the

implementation of soil saving projects in the piasa

Creek watershed.

Did you tell anybody at

Illinois-American water company in 2002 or any other

year of your choice, reconsider your payment of

$415,000 a year because my Permit Section may pull the

plug on you and reqUlre you to meet technology-based

effluent limits once your adjusted standard expires in

2007?

that.

I would not have any authority to tell them

however, we have a very short time frame for that

because we have a hearing coming up on the 28th.

But

it's your choice. The transcript could be available

by the mi ddl e of next week, whi ch we thi nk wi 11 be

wednesday, and we would have to ask you if you choose

to read it and look for corrections, necessary

corrections, we would ask that you do so within 24

hours to give us all a chance to utilize it.

okay.

All right.

MR. HILES:

Or else you can waive that right,

just assume that the court reporter got all the words

right.

MR. SOFAT:

My recommendati on you can look at

it and get it back to them ln 24 hours.

All right. we'll do that.

MR. HILES:

Thank you.

(Deposition concluded at 1:40 p.m.)

STATE OF ILLINOIS

)

COUNTY OF SANGAMON

)

I, Dorothy J. Hart, affi 1 i ated wi th capi tal

Reporting service, Inc., do hereby certify that I

reported in shorthand the foregoing proceedings; that

the witness was duly sworn by me; and that the

foregoing is a true and correct transcript of the

shorthand notes so taken as aforesaid.

I further certify that I am in no way associated

with or related to any of the parties or attorneys

involved herein, nor am I financially interested in

the acti on.

-/..u~,4Lk:.'.I::'..~-::J...-,~NUk~--------

084-001390

rthand Reporter

rofessional Reporter

Pllhl;

OFFICIAl. SEAl.

DOROTHY

I~AR!"

NOTARY PUBLIC, STATr:

1i.l.INO,o

MY COMMiSSION EXPIRES 6.24-2011

Dated this 20th day of

August, A.D.

2007, at

springfield, Illinois

ERRATA SHEET

Illinois-American Adjusted Standard proposed Extension

I hereby verify that the foregoing is a true and

accurate transcription of my deposition taken on

8/16/07, except for those changes noted below:

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Dated thi s

day of

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Robert G. Mosher

________, 2007

Notary Publ i c