BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

WATER QUALITY STANDARDS AND

EFFLUENT LIMITATIONS

FOR THE

CHICAGO AREA WATERWAY SYSTEM

AND THE LOWER DES PLAILNES RIVER:

PROPOSED AMENDMENTS TO 35 Ill.

Adm. Code Parts 301, 302, 303 and 304

)

)

)

)

)

)

)

)

R08-9

(Rulemaking - Water)

NOTICE OF FILING

TO: Jolm Therriault, Assistant Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 6060 I

Attached Service List

PLEASE TAKE NOTICE that I have filed today with the Illinois Pollution Control

Board

MIDWEST GENERATION'S QUESTIONS

FOR THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY STAFF WITNESSES and MIDWEST

GENERATION'S QUESTIONS

FOR THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY WITNESS CHRIS O. YODER,

copies of which are herewith

served upon you.

Dated: January 17, 2008

MIDWEST GENERATION, L.L.C.

Susan

M. Franzetti

FRANZETTI LAW FIRM P.C.

10 South LaSalle Street, Suite 3600

Chicago, IL 60603

(312) 251-5590

Brent Fewell

Kristy

A. N. Bulleit

HUNTON

&

WILLIAMS LLP

1900 K Street, N.W.

Washington, DC 20006

(202) 955-1891

Electronic Filing - Received, Clerk's Office, January 17, 2008

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Marie Tipsord, Hearing Officer

Illinois Pollution Control Board

100 West Randolph St

Suite 11-500

Chicago, IL 6060 I

SERVICE LIST R08-09

Dennis 1. Duffield

Director of Public Works

&

Utilities

City of Joliet

921 E. Washington St

Joliet, IL 60431

Frederick Feldman

Ronald Hill

Louis KoIIias

Margaret Conway

Metropolitan Water Reclamation District

100 East Erie St

Chicago, IL 6061

I

Richard Kissel

Roy Harsch

DrinkerBiddle

191 N. Wacker Dr.

Suite 3700

Chicago, IL 60606-1698

Claire Manning

Brown Hay

&

Stephens LLP

700 First Mercantile Bank Bldg

205 S. Fifth St

Springfield, IL 62705-2459

Deborah

J. Williams

Stefanie N. Diers

Illinois EPA

1021 North Grand Avenue

Springfield, IL 62794-9276

Katherine Hodge

MonicaRios

Hodge Dwyer Zeman

3150 Roland Avenue

Springfield, IL 62705-5776

Charles Wesseliloft

James Harrington

Ross

&

Hardies

150 N. Michigan Ave

Chicago, IL 60601-7567

(00004065.DOC)

Keith Harley

Elizabeth Schenkier

Chicago Legal Clinic, Inc.

205 West MOlioe Street

4

th

Floor

Chicago, IL 60606

Frederick Keady

Vermillion Coal Company

1979 Jolms Drive

Glenview, IL 60025

Fred

1.

Hubbard

P.O. Box

12

16 West Madison

Danville, IL 61834

Georgia Vlall0S

Naval Training Center

260lA Paul Jones St

Great Lalces, IL 60088-2845

W.C. Blanton

Blackwell Sanders LLP

4801 Main St

Suite 1000

Kansas City, MO 64112

Kay Anderson

American Bottoms

One American Bottoms Road

Sauget, IL 6220 I

Electronic Filing - Received, Clerk's Office, January 17, 2008

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Robert VanGyseghem

City of Geneva

1800 South St

Geneva, IL 60134-2203

Jerry Paulsen

Cindy Slaukrud

McHenry County Defenders

132 Cass Street

Woodstock, IL 60098

Matthew Dunn

Office

of the Attorney General

Environmental Bureau North

69 West Washington Street

Suite 1800

Chicago, IL 60602

Albert Ettinger

Freeman Freeman

&

Salzman

401 N. Michigan Ave

Chicago, IL 60611

Bernard Sawyer

Thomas Granto

Metropolitan Water Reclamation District

6001 W. Pershing Rd

Cicero, IL 60650-4 I 12

Lisa Frede

Chemical Industry Council of Illinois

2250 E. Devon Ave

Suite 239

Des Plaines, IL 60018-4509

Fredric Andes

Erika Powers

Bames

&

Thornburg

I North Wacker Dr

Suite 4400

Chicago, IL 60606

(00004065.DOC}

Jack Darin

Sierra Club

70 E. LaI(e St

Suite 1500

Chicago, IL 60601-7447

Bob Carter

Bloomington Normal Water Reclamation

PO Box 3307

Bloomington, IL 61702-3307

TomMuth

Fox Metro Water Reclamation District

682 State Route 3 I

Oswego, IL 60543

Kenneth

W. Liss

Andrews Environmental Engineering

3300 Ginger Creek Drive

Springfield, IL 62711

Albert Ettinger

Jessica Dexter

Environmental

Law

&

Policy Center

35 E. Wacker

Suite 1300

Chicago, IL 60601

Vicky McKinley

Evanston Environmental Board

223 Grey Avenue

Evanston, IL 60202

Marc Miller

Jamie

S. Caston

Office of Lt. Governor Pat Quinn

Room 414 State House

Springfield, IL 62706

Electronic Filing - Received, Clerk's Office, January 17, 2008

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James

L.

Daugherty

Thorn Creek Basin Sanitary District

700 West End Avenue

Chicago Heights, IL 60411

Sharon Neal

Cornmonwealth Edison

125 South Clark Street

Chicago, IL 60603

Tracy Elzemeyer

American Water Company

727 Craig Road

St. Louis, MO 63141

Margaret P. Howard

Hedinger Law Office

2601 South Fifth Street

Springfield, IL 62703

Irwin Polls

Ecological Monitoring and Assessment

3206 Maple

LeafDrive

Glenview, IL 60025

James Huff

Huff

&

Huff, Inc.

915 Harger Road, Suite 330

Oale Brook, IL 60523

William Richardson

Chief Legal Counsel

Illinois Department

ofNatural Resources

One Natural Resource Way

Springfield, IL 62702

[00004065.DOC}

Jeffrey C. Fort

Ariel

1. Tesher

Sonnenschein Nath

&

Rosenthal LLP

7800 Sears Tower

233

S. Wacker Drive

Chicago, IL 60606-6404

Dr. Thomas

J. Murphy

2325 N. Clifton St

Chicago, IL 60614

Beth Steinhorn

2021 Timberbrook

Springfield, IL 62702

Ann Alexander

Natural Resources Defense Council

101 N. Wacker Dr

Suite 609

Chicago, IL 60606

Cathy Hudzik

City

of Chicago

Mayor's Office

of Intergovernmental Affairs

121 North LaSalle Street, Room 406

Chicago, IL 60602

Traci Barldey

Prairie Rivers Networks

1902 Fox Drive, Suite 6

Champaign,IL 61820

Thomas V. Skinner

Thomas

W. Dimond

Kevin Descharnais

Mayer Brown LLP

71 South Wacker Drive

Chicago, IL 60606

Electronic Filing - Received, Clerk's Office, January 17, 2008

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CERTIFICATE OF SERVICE

The undersigned, an attorney, certifies that true copies ofthe foregoing Notice of Filing

and Midwest Generation's Questions for the Illinois Environmental Protection Agency Staff

Witnesses and Midwest Generation's Questions for the Illinois Environmental Protection

Agency Witness Chris

O. Yoder were filed electronically on January 17,2008 to the following:

Jolm Therriault, Assistant Clerk

Illinois Pollution Control Board

James

R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago,IL 60601

and that true copies were mailed by First Class Mail, postage prepaid, or sent electronically on

January 17, 2008 to the parties listed on the foregoing Service List.

(00004065.DOC)

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

WATER QUALITY STANDARDS AND

EFFLUENT LIMITATIONS

FOR THE

CHICAGO AREA WATERWAY SYSTEM

AND THE LOWER DES PLAINES RIVER:

PROPOSED AMENDMENTS TO

35

Ill.

Adm. Code Parts 301, 302, 303 and 304

)

)

)

)

)

)

)

)

R08-9

(Rulemaking - Water)

MIDWEST GENERATION'S QUESTIONS FOR THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY STAFF WITNESSES

Midwest Generation, L.L.C. ("Midwest Generation" or "MWGen"), by and

through its attorneys, Franzetti

Law Firm P.C. and Hunton

&

Williams LLP, submits the

following questions based upon the Proposed Amendments to

35

Ill.

Adm. Code Parts

301,302,303 and 304, the Statement of Reasons and its Attachments, and the testimony

submitted by the Illinois Environmental Protection Agency

("Agency" or "Illinois EPA")

for Roy Smogor ("Smogor"), Rob Sulski ("Sulski") and Scott Twait ("Twait") in tlus

rule-making proceeding. Midwest Generation is separately filing questions based upon

the testimony subnlitted by the Illinois EPA for Chris O. Yoder ("Yoder").

Midwest Generation's questions are organized in an outline format under topical

headings based

on issues raised by the proposed rules. The questions are necessarily

comprehensive because

of tlle significant issues raised in tlus proceeding regarding tlle

technical and scientific basis for tlle proposed rules, the proposed use designations and

the overly stringent proposed tllermal water quality standards for the Chicago Sanitary

and Ship Canal ("CSSC"), Brandon Pool and the Upper Dresden Pool which are not

based on the many years

of stream survey data that has been subnlitted to tlle Agency.

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

In

an effort to facilitate the Agency's preparation of responses, citations to

specific pages and relevant language from the Agency'sProposed Rules, Statement

of

Reasons and/or Witness Testimony are provided. For the Agency staff witnesses,

Midwest Generation has

not designated a specific witness to respond to the questions

presented as prior discussion with the Agency'scounsel determined that the Agency

prefers to have the discretion to detelmine which of its witnesses will respond at the

hearing. However, while these questions are not directed to specific Agency staff

witnesses, Midwest Generation does request that the Agency provide answers specific to

each question posed. Midwest Generation further requests that the Hearing Officer allow

follow-up questioning to be posed based on the answers provided.

QUESTIONS

1.

Statutory Basis and Legal Framework

A.

Environmental Protection

Act

1.

In its Statement ofReasons at p.2, the Illinois EPA references the

following language from Section 27(a)

ofthe Illinois

Environmental Protection

Act which identifies the criteria that the

Board is required to take into account

in this rule-making: "the

existing physical conditions, the character ofthe area involved,

including the character

of surrounding land uses, zoning

classifications, the nature

ofthe existing air quality or receiving

body

of water, as the case may be, and the technical feasibility and

economic reasonableness

of measuring or reducing the particular

type

of pollution. (415 ILCS 5/27(a) (2006).)" For the area

encompassing the Chicago Sanitary and Ship Canal and

downstream through the Upper Dresden Pool, please provide the

following information

(00004049.DOC

a)

b)

Has the Illinois

EPA reviewed "the character ofthe area

involved" and,

if so, please provide the information the

Agency has on the character

of the area involved.

Has the Illinois

EPA reviewed the "zoning classifications"

and,

if so, please provide the zoning classification

information the Agency has reviewed.

2

Electronic Filing - Received, Clerk's Office, January 17, 2008

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c)

Has the Illinois EPA reviewed "the existing physical

conditions" in relation to habitat requirements (e.g.,

substrate, spawning materials, migration access, dissolved

oxygen levels, toxicants)

of the species and life stages that

are being used to establish the proposed thermal water

quality standards?

If so, how was tins done?

d)

Has tile Illinois EPA calculated tile total cost (including

capital, O&M, energy, and cross-media environmental

costs) for point sources

ofreducing the particular types of

pollution that will be subject to more stringent standards if

the Board adopts the current proposal?

e)

Has tile Illinois EPA considered tile contribution

of and

possible need for reductions by nonpoint sources?

If so,

has it estimated tile costs

of such controls?

f)

Has it considered how those costs or any point or nonpoint

source controls will affect Illinois tax payer and rate payers

and the Illinois economy overall? Has

it attempted to

estimate what the social impacts

of imposing those costs

will be?

g)

Has it made any attempt to gauge the "econonllc

reasonableness" of achieving those standards and, if so,

what assessment criteria did it use?

B.

Clean Water Act and Federal Regulations

1.

The Statement of Reasons, pp. 10-7, describes the federal statutory

provisions applicable to establishment

of water quality standards.

In particular, it notes

tIlat § 101(a)(2) of tile CWA establishes a

"national goal that, wherever attainable, an interim goal

of water

quality

tIlat provides for the protection and propagation of fish,

shellfish, and wildlife" be achieved.

It

further notes tIlat

303(c)(2)(A) requires states, in setting standards, to serve tile

purposes

of tile CWA, and to take into consideration the use and

value

of waters for, inter alia, propagation of fish and wildlife,

industrial uses, and other purposes.

It

then describes U.S. EPA's

water quality standards regulations as interpreting § 303(c)(2)(A)

to mean

tIlat "water quality standards, wherever attainable, provide

water quality for

tIle protection and propagation of fish, shellfish,

and wildlife."

(00004049.DOC

a)

Is tIlere anytlling in tIle CWA or implementing regulations

tIlat specifies what species ofbiological assemblage is to be

protected?

3

Electronic Filing - Received, Clerk's Office, January 17, 2008

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b)

Are there any other CWA provisions that apply with

respect to water quality standards for temperature? What

are they, and how do they apply to the development or

implementation ofthermal standards for the waters under

consideration here?

2.

On pp. 5-6 of the Statement of Reasons, the Illinois EPA cites U.S.

EPA's regulatory requirements for conducting use attainability

analyses to evaluate potential changes in designated uses, 40

C.F.R. § 131.1 O(g).

a)

Is it correct that this is the first UAA for any Illinois

waterbody in which the Illinois EPA?

b)

Given that this is the first time that the Illinois

EPA has

applied the federal

UAA regulations, is there any published

federal guidance on the performance

ofUAAs that the

Illinois

EPA tried to follow here or otherwise received from

U.S.

EPA that you can identify for us?

C.

Applicable Board Regulations and Regulatory History

I.

On p. 10-11 ofthe Statement of Reasons, it is noted that "[i]n its

Opinion in R72-4, the Board stated that

"The basis for the Board's

decision to use the I-55 bridge as a boundary for the division

ofthe

Des Plaines River into restrictive and General Use is that the

location

of the bridge corresponds to changes in the physical

environment characteristics

of the area. R72-4, Slip Op. at 5

(November

8,1973)."

a)

Does the Illinois EPA agree that the location of the I-55

Bridge still corresponds today to

the changes in the

physical environmental characteristics

of the area? Please

provide the reasons for your answer.

D.

History

of Thermal Demonstrations and Thermal Adjusted Standards in

the Chicago Area Waterway System and Lower

Des Plaines River

I.

On pp. 13-14 of its Statement of Reasons, the Illinois EPA

describes the 1996 Adjusted Standard from the General Use

thermal water quality standards granted to Commonwealth Edison

in AS96-10 which is applicable at the I-55 Bridge on the Lower

Des Plaines River and later, on March 16, 2000, was transferred to

Midwest Generation. With respect to

tins Adjusted Standard,

please respond to the following questions:

I00004049.DOC

a)

Does tile Illinois EPA agree tlmt in the AS96-10 Board

decision, the Illinois

EPA and tile Board found that

4

Electronic Filing - Received, Clerk's Office, January 17, 2008

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{00004049.DOC

Commonwealth Edison ("CornEd"), Midwest Generation's

predecessor, had successfully demonstrated that the heat

discharges from the Joliet Station did not cause nor could

reasonably expected to cause significant ecological damage

to the waters

ofthe Five-Mile Stretch (Lower Des Plaines

below I-55)?

If so, please explain whether the Illinois

EPA'sposition regarding the lack

of significant adverse

ecological impact from the MWGen Joliet Station has

changed and

if so, explain the reasons for its change in

position.

b)

The Statement

of Reasons refers to Appendix A at 2-84 for

a description

ofthe basis for the Adjusted Standard.

Appendix A at 2-84 states that

"the Illinois EPA agreed that

heat was not a factor limiting the quality

ofthe aquatic

habitat

of the Five-Mile Stretch." Does the Illinois EPA

agree that in the AS96-10 proceeding, the Illinois EPA

agreed, and the Board concurred, that the temperature

of

the waters ofthe Five-Mile Stretch was not a factor limiting

its quality, and that other factors continued to override the

effect

of temperature on the waterway, such as loss of

habitat due to channelization, disruption of habitat due to

barge traffic, and the presence

of heavy metals and other

pollutants in the system?

(i)

Is it now the Illinois

EPA's position that these

factors have changed favorably, such that temperature has

now become a limiting factor for improvements to the

biological community

of the waterway and, if so, please

explain the factual basis for the change in Illinois

EPA's

position?

c)

Appendix A at 2-84 further states that "[t]he Board noted

that the Agency (IEPA) concluded that

as long as the Joliet

Station meets all the applicable standards at the point

of

discharge and in the downstream General Use waters, the

Agency did not view the Joliet Station'sthermal discharges

as limiting aquatic diversity in the receiving waters."

It

goes on to note that Midwest Generation'spredecessor,

Commonwealth Edison, then undertook a multi-year study

ofthe effect ofheated effluent on the receiving stream,

which was conducted by a reputable team

of scientists from

three universities and Edison ecological consultants.

(I)

Does the Illinois EPA agree with the Board'spast

fmdings, which were based on extensive study, that

5

Electronic Filing - Received, Clerk's Office, January 17, 2008

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temperature is not a factor limiting aquatic diversity in the

Five-Mile Stretch downstream from the I-55 bridge?

d)

Pursuant to the terms

of the Adjusted Standard granted by

the Board

in AS96-1 0, Commonwealth Edison and, since

2000, Midwest Generation, have conducted annual stream

surveys on the Lower Des Plaines River and submitted the

results

of those surveys to the Illinois EPA.

(i)

Does the Illinois EPA agree that the results of those

ongoing annual surveys

of the fish community in the

waterways adjacent to the five Midwest Generation

electrical generating stations have shown that the thermal

discharges from the five Midwest Generation electrical

generating stations have not adversely affected the

maintenance

of a balanced indigenous aquatic population in

the area at and downstream ofthe I-55 Bridge? Ifyou

disagree, then what is the rationale?

(ii)

Does the Agency agree that

the results have shown

that the aquatic community has

shown some improvement

over the time since the alternate standards have gone into

effect?

If you disagree, can you identify any field sampling

data on which your position is based?

{00004049.DOC

e)

f)

g)

In

what way and to what extent, if any, does the aquatic

community in the Five-Mile Stretch differ from the

community

in the Upper Dresden Island Pool?

In

the AS96-1 0 Board decision, regarding the issue of

environmental impact, the Board found that: "[t]he

upstream reach

ofthe South Branch ofthe Chicago River,

the Chicago Sanitary and Ship Canal, and the Des Plaines

River is greatly modified

by use as a shipping channel with

habitat limited to deep pools without shallows, structure,

riffles of suitable substrates." And furtller found: "[t]he

waterway is a very artificial and significantly modified

waterway that is limited in terms

of habitat" Is the Illinois

EPA's position that the habitat described in the AS96-IO

decision has changed and,

if so, describe the stream survey

data on which

tins position is based?

In

tile AS96-1 0 Board decision, tlle Board found that the

area affected

by tile proposed (I-55) adjusted standard is

heavily developed witII industries, including a refinery, a

chenlical plant and a boatyard. Is it tile Illinois EPA's

position that these characteristics of the Upper Dresden

6

Electronic Filing - Received, Clerk's Office, January 17, 2008

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Pool have changed and, if so, describe the data on which

this position is based?

h)

In the AS96-1 0 Board decision, the Board found that:

"[h]istorical practices have caused substantial residual

chemical contamination to be present in the sediments

of

the waterway." Is

it

the Illinois EPA's position that this

condition has changed and,

if so, describe the data on

which this position is based?

i)

In its submission in the AS96-1 0 proceeding the Illinois

EPA stated: "[t]e Agency believes that

it is technically

feasible to reduce temperature

of the effluents by the use of

cooling towers and spray ponds. However, the Agency

believes that the cost

of providing tlus cooling may not be

economically reasonable when compared to the likelihood

of no improvement in the aquatic community." What is the

Agency's current position on tlle likelihood

of any

significant improvement in the aquatic community and

identifY any scientific data tl1at supports its position?

j)

If the Board were to adopt the Illinois EPA'sproposed

thermal water quality standards for tlle Upper Dresden

Pool, how would this affect tlle continuance oftlle AS96-10

Adjusted Standard granted to Midwest Generation?

II.

Regulatory Proposal: Purpose and Effect

A.

Introduction - Description and History oftlle Chicago Area Waterway

System and Lower Des Plaines River

1.

At p. 14 of the Statement of Reasons, the Illinois EPA states:

"[w]itll the urban development

of the Chicago metropolitan area,

CAWS and Lower Des Plaines River grew in importance

as a

storm water management system."

a)

Does oftlle CSSC portion oftlle CAWS and the Upper

Dresden Pool

ofthe Lower Des Plaines River still serve

today as a storm water management system?

B.

Description

ofthe Secondary Contact and Indigenous Aquatic Life Use

Designations

{00004049.DOC

1.

At tlle bottom of p. 19 ofthe Statement of Reasons, the Illinois

EPA lists the following characteristics ofthe CAWS and LDP tl1at

existed in the 1970'sand were the basis of their designation as

Secondary Contact:

7

Electronic Filing - Received, Clerk's Office, January 17, 2008

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Routinely dredged and maintained channels, including

steep-sided cross-sections designed to accommodate barge traffic

and optimize flow.

Significant sludge deposition, as a result

of CSOs,

industrial waste discharges and urban runoff.

The entire system has minimum slope and consequently

low velocity, stagnant flow conditions. Diversion

of Lalce

Michigan water is kept as low as possible.

Urban stress is significant within the entire drainage area.

Good physical habitat for aquatic communities in tlle main

channel was nonexistent due to

ilie impact of commercial and

recreational watercraft use

of tlle system as well as sludge

deposition.

In

addition to ilie above human-made and irretrievable

modifications,

ilie CAWS also carries a massive wastewater load

including CSOs during wet

weailier.

Isn'tit correct that all oftllese characteristics still exist today in ilie

CSSC and ilie Upper Dresden Pool portions oftlle CAWS and

LDP?

2.

Ifilie Illinois EPA maintains iliat one or more ofilie above

characteristics no longer apply to the CSSC and

ilie Upper Dresden

Pool,

ilien describe ilie factual data and information tllat supports

tlle Agency'sposition.

3.

Is tlle CAWS achieving current water quality standards or is it

listed

as impaired under Section 303(d) oftlle CWA?

a)

Iftlle latter, isn'tit correct iliat tlle CAWS is impaired for

PCBs, organic enrichment, low dissolved oxygen, flow

alteration, habitat alteration, suspended solids, priority

organics, metals, cadmium, chromium, mercury, zinc,

cyanide, nutrients, phosphorous, and total

an1ll1onia-N? If

not, please identify tlle sources of impairment and what

segments

of the CAWS are so impaired.

b)

Will tlle proposed designated use changes in any way affect

tllese sources

of impairments?

t

00004049.DOC

4.

Is CAWS listed as impaired for temperature?

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Electronic Filing - Received, Clerk's Office, January 17, 2008

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5.

What impact, if any, do the impairments above have on aquatic

life? On protection and propagation

of indigenous population of

shellfish, fish, and wildlife?

6.

Does the Agency plan to develop a TMDL for the CAWS to

address these impairments?

If so, how will the proposed higher

use designations for the CAWS affect the development

of a

TMDL?

7.

What are the bio-accumulative risks to humans/wildlife from fish

tissue containing persistent organic pollutants, such

as PCBs, and

mercury?

8.

Has the Agency conducted any fish tissue tests to determine the

level

of bio-accumulative chemicals?

9.

Has the Agency considered the ecological and human health risks

associated with upgrading beneficial use designations?

III.

Use Attainability Analysis for the CAWS

A.

Lack of Attainment of CWA Goals

1.

On p. 9 of the CDM UAA Report for the CAWS, CDM determined

that "none

of the waterbodies could achieve Clean Water Act goals

due to limitations described in the 6 UAA factors." CDM also

concluded that several waterway and effluent management controls

would need

to be implemented before the CAWS could achieve all

of its recommended uses. At p. 16 ofthe CDM Report, it is

acknowledged that these conditions "are not reversible in the

foreseeable future."

a)

Given that none ofthese management controls have begun

and there is

no timetable for implementing them, why does

the Illinois EPA believe that more restrictive thermal water

quality standards are necessary for the CAWS?

b)

Given the constraints and stressors identified in the CAWS

UAA Report, why does the Illinois EPA believe the aquatic

community in the CAWS will respond positively

to more

restrictive thermal water quality standards?

IV.

Use Attainability Analysis for the Lower Des Plaines

A.

Highly Modified Waterbody

(00004049.00C

1.

On p. 22 of the Statement of Reasons, the Illinois EPA states:

"It

is clear from the UAA that Lower Des Plaines River continues to

9

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

(00004049.DOC

2.

3.

4.

be a highly modified waterbody that does not resemble its pre-

urbanized state."

a)

What it is the intended meaning

ofthe phrase "highly

modified waterbody"?

b)

With respect to the explanation

ofthe meaning of the

"highly modified" nature

of the Lower Des Plaines River,

for which

of the criteria in Section 27(a) of the Illinois

Environmental Protection Act (e.g.,

"the existing physical

conditions, the character

ofthe area involved, including the

character

of surrounding land uses, zoning classifications,

the nature

of the existing air quality or receiving body of

water, as the case may be, and the technical feasibility and

economic reasonableness

of measuring or reducing the

particular type

ofpollution") does this finding provide

relevant facts for the Board to consider?

On p. 22

ofthe Statement of Reasons, the Illinois EPA states:

"[w]hile there has been improvement and potential exists for

additional improvement, the UAA did not find the Lower Des

Plaines River to be capable

of full attainment ofthe aquatic life

and recreational goals

of the Clean Water Act for un-impacted

waters in the foreseeable future." Conversely, on p. 52

ofthe

Statement

of Reasons, the Illinois EPA states: "Upper Dresden

Pool is capable

of maintaining a biological condition that

minimally meets the [CWA's] Aquatic Life goal." And on

p. 13 of

Sulski Pre-Filed Testimony, it is stated that "Illinois EPA is

recommending three levels

ofbiological potential in the CAWS

and Lower Des Plaines River; and ... two

ofthe three levels do not

meet the Clean Water Act'saquatic life goal

...." What is the

Illinois EPA'sposition on the level

of aquatic life use that the

Upper Dresden Pool is capable

of attaining and what is the basis

for that position?

Similarly,

onp. 94 of the Statement of Reasons, the Illinois EPA

states that its consultants recommended the adoption

of a reduced

biotic integrity status for the Upper Dresden Pool and that its

proposed use designation is "consistent" with the consultants'

recommendation. Does

tillS mean that the proposed Upper

Dresden Pool Aquatic Life Use designation is sometlJ.ing less tllan

tile CWA's aquatic life goal?

On p. 8

of Sulski'sPre-Filed Testimony, it is stated that tile

consultant AquaNova's recommended aquatic life use for tile

Upper Dresden Island Pool "recognized reduced biotic integrity

due to impoundment." Explain tile meaning

of the phrase

10

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

"reduced biotic integrity due to impoundment" and identify the

relevant criteria in Section 27

ofthe Illinois Environmental

Protection Act to which tins information applies?

5.

On p. 8 ofSulsld'sPre-Filed Testimony, it is stated tlmt "Illinois

EPA took into account additional habitat and aquatic life data not

available at the conclusion

ofthe AquaNova'scontract obligations

towards tile Lower Des Plaines UAA. The additional data is found

in Attachments MM, R and S

of the Statement of Reasons."

a)

Did tile Illinois EPA'sreview of the cited additional habitat

and aquatic life data result in any changes to the findings

concerning the aquatic life use potential

ofthe Upper

Dresden Island Pool?

If so, explain what tllose changes

were and identify tile data that the Illinois EPA claims

supports

tllOse changes.

6.

Onp. 10 of SuIski'sPre-Filed Testimony, it is stated tlmt

additional habitat and aquatic-life data were generated by MEl

and EA Engineering, Science and Technology, referring to

Attachments S and MM

ofthe Statement of Reasons.

a)

Did the Illinois EPA retain MEl to generate tile additional

data contained in Attachment S? Ifnot, how did fue MEl

additional data come to be collected and how did the

Illinois EPA receive it?

b)

When did tile Illinois EPA receive the

MEl data in

Attachment S?

c)

Was the MEl data in Attachment S distributed to the Lower

Des Plaines River stalceholders group prior to its filing in

tlris proceeding?

d)

Explain how the Illinois EPA took the EA Engineering data

in Attachment MM into account in determining the aquatic

life use for Upper Dresden Pool?

e)

Based on tile Illinois EPA'sreview ofthe MEl Attachment

S data and the EA Engineering Attachment MM data, did it

find

tlmt tile data was consistent or were there

inconsistencies between these two data sets? Explain any

inconsistencies and how tile Illinois EPA took tllem into

account in maldng its decision on

fue proposed aquatic life

use for tile Upper Dresden Island Pool?

[00004049.DOC

7.

For the Upper Dresden Pool, what are tile "existing uses" (i.e., the

uses actually attained on or after November 28, 1975) that have

11

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

been identified by the Illinois EPA and are to be protected by the

proposed use designation?

8.

For the Brandon Pool and the CSSC, what are the "existing uses"

(i.e., the uses actually attained on or after November 28,1975) that

have been identified by the Illinois EPA and are to be protected by

the proposed use designation?

9.

In a March 13, 2006, U.S. EPA memorandum entitled "Improving

the Effectiveness

ofthe Use Attainability Process," U.S. EPA

states that

"a credible UAA can result in a change in designated

use in either direction", i.e., more stringent or less stringent

designated uses, and that could "lead to either more or less

protective criteria." Does IEPA agree with this statement?

If not,

please explain.

Memo available at

http://www

.epa.govIwatersciencelstandards/uaa/pdf/memo king.p

df

10.

At p. 2 of Smogor'sPre-Filed Testimony, it is noted that the Upper

Dresden Pool has unique flow conditions due to the need to

maintain the navigational use and flood control. Given these

unique flow conditions and the impounded nature

of the Upper

Dresden Pool, does the Illinois EPA agree that the Upper Dresden

Pool is "use-impaired"?

II.

At p. 3 of Smogor'sPre-Filed Testimony, there is a reference to a

lack

of improvements in the conditions in the Upper Dresden Pool,

given that the navigational use and flow management controls for

the Upper Dresden Pool will continue for the foreseeable future,

does the Illinois EPA agree that these constraints are irreversible?

V.

Regulatory Proposal: Regulatory Language

A.

Part 301 Definitions

[00004049.00C

I.

§301.307 Lower Des Plaines River (LDP): The term "Lower Des

Plaines River" is commonly used to refer to the stretch

of the Des

Plaines River from the confluence with the CSSC to the confluence

with the Kankalcee River. The current UAA proceeding defines

the I-55 Bridge

as the farthest extent ofthe Lower Des Plaines

River. Has the Agency considered that its abbreviated definition

may cause confusion given its more limited scope and perhaps,

instead, another defmed term should be used to identify this more

limited stretch

ofthe river?

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---

B.

Part 302

1.

The language ofproposed Section 302.402 Purpose and the

language

ofproposed Section 303.204 Chicago Area Waterway

System and Lower Des Plaines River Waters are very similar.

What is the intended difference between these two proposed

regulations?

2.

With respect to the language

of proposed Section 302.402, if one

ofthe purposes ofthe CAWS and Lower Des Plaines River

standards

is to protect "industrial water supply uses," explain how

the proposed standards accomplish this purpose?

C.

Part 303 - Use Designations

1.

Why did the Agency elect to use these water-body specific use

designations rather than the nonspecific classification approach

used in the existing Part 303 Subpart B existing use designations?

2.

On p. 24 of the Statement of Reasons, the Illinois EPA states as

follows:

"When the Board is faced with a proposal to update the

one-size-fits-all use designations for the rest

ofthe State, IEPA

expects there to

be no need to reopen these uses and standards

designed to apply specifically to these waters."

{00004049.DOC

a)

b)

c)

d)

Is

tins tile reasoning behind the Agency's highly water-

body specific structure proposed for these use

designations?

Isn'ttilere the possibility that planned, future revisions to

the existing Illinois use classification system

may support a

different approach to tilese waters?

And if so, why should

tiley be excluded from potential revisions based on further

consideration of what the updated Illinois use classification

system should be?

Why didn'tthe Agency instead propose "Aquatic Life Use

A" and "Aquatic Life Use B" use designations tilat are

nonspecific and can apply to other waterways in the state

that may be similar to the waterbodies involved in this rule-

maldng in order to rnininlize the potential for multiple use

designations in tile future that are duplicative

or

overlapping in tileir scope and intent?

Did tile Illinois EPA consider tile approach tal(en by tile

State

of Colorado which has a use classification category

for waters that are wastewater dominated

or effluent

13

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

(00004049.DOC

3.

dependent (e.g., a high percentage ofthe flow is

wastewater)?

e)

Doesn'tthis approach increase the likelihood that as the

Illinois EPA reviews existing use designations in other

waterbodies

ofthe state, such as in the context of TMDLs

that may identify the need for a use designation change, it

will then propose additional waterbody specific use

classifications to the Board?

f)

Why isn'tit preferable to first propose an updated, state-

wide use classification rule-maldng rather than proceed

first with a piece-meal approach to adding new use

classifications to the Illinois water quality standards

regulations?

g)

Isn'ttins waterbody-specific use designation approach

increasing tile likelihood

of creating a complicated,

potentially contradictory and extensive list

of use

designations in the absence

of establishing a revised,

updated state-wide use classification system first?

h)

Given tile waterbody-specific nature oftllese proposed use

designations, is this rule-maldng accurately categorized as a

regulation

of general applicability under Illinois law?

i)

Is tllere precedent in other states for taldng this type of

water-body specific approach to creating a revised use

classification system?

j)

The proposed placement ofthese waterbody-specific

proposed use designations within Subpart B, which is

entitled "Nonspecific Water Use Designations" does not

seem appropriate and may create confusion. Has tile

Agency considered tllese issues and concerns?

"Section 303.204 Chicago Area Waterway System and Lower

Des Plaines River Waters:

The Clncago Area Waterway System

and Lower Des Plaines River Waters are designated to protect for

incidental contact or non-contact recreational uses, except where

designated as non-recreational waters; commercial activity,

including navigation and industrial water supply uses; and tile

highest quality aquatic life and wildlife

tllat is attainable, linlited

only by tile physical condition oftllese waters and hydrologic

modifications to these waters. These waters are required to meet

the standards contained

in

Subpart D of Part 302, but are not

14

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

required to meet the general use standards or the public food

processing water supply."

a)

What is

the intended meaning and purpose ofthe first

sentence

ofthis section that lists all of the various use

designations employed for the multiple segments

of the

CAWS and Lower Des Plaines River,

and why is it

necessary?

b)

What use designation is intended to

be described by the

language "the highest quality aquatic life and wildlife that

is attainable limited only by the physical condition of these

waters, and hydrologic modifications to these waters"?

(i)

What is the intended meaning

ofthis language as

applied to the waterbody segments that are subject to one

of

the three separate, proposed aquatic life use designations A,

B and Upper Dresden Pool

in proposed sections 303.230,

303.235 and 303.2377

(ii)

Is this language properly included in a "use

definition" or is it more suited to being the intended "goal"

of the proposed aquatic life use designations for these

waterways?

(iii)

What is the regulatory effect

of this language? In

other words, does the highest quality aquatic life that is

attainable limited only by physical conditions and

hydrologic modifications change from year to year under

tillS type of "use definition" or does it somehow modify the

aquatic use designations set forth

in proposed Sections

303,230,303.235 and 303.2377

(iv)

Why is

tillS language necessary when the aquatic

life use designations separately described

in 303,230,

303.235 and 303.237 specify tile proposed aquatic life use

designations?

(00004049.DOC

c)

What uses are intended to be protected by the "commercial

activity, including navigation and industrial water supply

uses" language? Has the Illinois

EPA considered the

potential for its proposed aquatic life uses to conflict with

tile navigation use (for instance, where wakes or propellers

displace organisms, temporarily disturb substrate, or cause

abrupt changes in water levels), as it did

in developing its

proposed recreational uses?

If so, how does it anticipate

any

such conflict would be resolved?

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---

d)

The Statement ofReasons (pp. 5-6), Attachment A at 1-3,

and the Sulski Pre-Filed Testimony (p. 6) all recognize six

(6) factors that are relevant in evaluating use attainability:l-

naturally occurring pollutant concentrations; 2 -natural,

ephemeral, intermittent, or low flow conditions or water

levels; 3 - human caused conditions that cannot be

remedied or would cause more damage to correct than

leave

in place; 4 - hydrologic modifications; 5 - physical

conditions related to waterbody features; and 6 - economic

and social impacts

of imposing more stringent controls.

This overarching statement regarding the use designation

for CAWS and the Lower Des Plaines River appears to

aclmowledge only two

of those limitations - physical

conditions and hydrologic modifications - as limiting the

proposed aquatic life uses.

(i)

To what extent has the Illinois EPA considered the

other four factors in developing the proposed aquatic life

uses?

D.

New Definitions and Designations for Human-Contact Recreational

Activities

I.

On p. 35 of the Statement of Reasons, the IEPA cites to "an

average

of 15 CSO events per year" in the CAWS and Lower Des

Plaines River. Please explain

how the Illinois EPA calculated tlus

average number

of CSO events per year as it appears to be

significantly lower tllan otller sources reported numbers of CSO

events in the subject area.

E.

Aquatic Life Use Designations

{00004049.DOC

1.

2.

At pp. 46-47 of its Statement of Reasons, tile Illinois EPA states

that it relied on "two"

UAA factors to determine that the biological

conditions in tile CAWS and Lower Des Plaines River do not meet

tile

CWA's aquatic life goals but the following tlrree UAA factors

are listed: 3- human caused conditions or sources

of pollution; 4 -

dams, diversions or other types

of hydrologic modifications; 5 -

physical conditions related to natural features

oftile waterbody.

(See also Statement

of Reasons at p. 97 and Pre-Filed Testimony

of Sulsld at p. 13) Please confirm that the Illinois EPA relied on

the tlrree listed

UAA factors ratller tllan only two of tilem.

For the

tlrree UAA factors listed by the Illinois EPA, did tile

Agency determine that each

oftllese factors apply to the waterbody

segments included in tile Aquatic Life Use B use designation?

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---

3.

For the Upper Dresden Pool, which ofthe UAA factors did the

Illinois

EPA find were applicable?

4.

On p. 13 ofthe Pre-Filed Testimony of Sulski, it is stated that "[i]n

reaches where attainable uses are not being

met Illinois EPA has

concluded that low dissolved oxygen and high temperatures are

major water quality constraints."

(00004049.DOC

a)

b)

c)

d)

e)

f)

g)

h)

Identify each

of the reaches for which Illinois EPA has

concluded that high temperatures are a major water quality

constraint and identify what attainable uses are not being

met?

Has the IEPA used a formal process

of causal analysis for

determining what pollutants are responsible for the

waterway being biologically degraded, such as

EPA's 2000

"Stressor Identification Guidance Document" (EPA/822/B-

00/025), the EPA CADDIS system,

or a recent article on

the subject by Suter and others (Suter, G. W.

II,

S. M.

Cormier, and

S. B. Norton. 2007. Ecological epidemiology

and causal analysis. Ch. 4

in G. W. Suter II (ed.)

Ecological RiskAssessment,

2nd Edition. Taylor

&

Francis, Boca Raton, FL.)?

For these reaches, what is meant by the phrase "major

water quality constraint"?

Does this testimony mean that the only maj

or causes for

why these reaches are not attaining a higher aquatic life use

are

low DO and high temperature?

Is it the Illinois

EPA'sposition that none of the following

are major water quality constraints in the subject reaches:

lack

of adequate habitat, CSOs, non-point source urban

run-off and flow alterations/modifications?

What minimum temperature begins the range

of

temperatures that are referred to here as "high"?

Where are these temperatures located in the subject reaches

(e.g., are they at the surface)?

Explain the basis for the Illinois EPA's fmding that only

low

DO and high temperatures are the major water quality

constraints and identify the technical

or scientific data that

supports the Illinois

EPA's fmding.

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Electronic Filing - Received, Clerk's Office, January 17, 2008

---

i)

Iflmown, for each such reach being referred to in the

quoted language above, what are the causes

of the "high

temperatures" referred to in tIus testimony?

5.

The stated purpose of state 305(b) reporting is to be "an

assessment of tile quality of tile state's surface and groundwater

resources"

Of tile 51 possible causes of non-attainment of

beneficial uses, the Agency identified 31 existing causes, including

nutrients, patIlogens, metals, organic

chenlicals, sediments, flow

alterations, and physical habitat among otIlers. Why is temperature

not identified

as a cause of non- to partial attainment of beneficial

uses iftIlis is the purpose

ofthe 305(b) reporting process?

6.

It

is well documented that fish are adversely affected below

municipal wastewater effluents by endocrine disrupting chemicals

CEDCs) that are not removed by tile treatment process. Low

concentrations

of 2 of these chemicals commonly found in these

systems have been shown to cause a collapse

of fisheries in a

recent Canadian study published in the prestigious Proceedings

of

tile National Academy of Sciences. Was the presence ofEDCs in

tIus effluent donlinated system considered as a cause of non-

attainment? How can these stressors be removed from tile system?

7.

There is a clear link established by tIle U.S. EPA between sediment

contamination and fish tissue advisories.

a)

Given

tIlat tIle fish in tIus system exceed fish tissue

advisories for Hg and PCBs,

isn'ttIlis likely due to tIle

contaminated sedinlents tIlat are present?

b)

Do tile contaminated sediments present a risk

bOtIl to

hUlllans and wildlife?

c)

Are

tIle CSO's tImt exist in tIle waterway a contributing,

continuing source

of mercury to tIle system tIlat will

continue for many years?

d)

What is

tIle Agency or any otIler regulatory agency doing at

present to

nlitigate tIus critical problem tIlat affects

beneficial uses?

(00004049.DOC

8.

9.

What is tIle difference between tile existing "Indigenous Aquatic

Life" aquatic life use designation in tile Illinois regulations and the

"Aquatic Life Use B" proposed aquatic life use designation?

On p. 17

of the Pre-Filed Testinlony of Sulski, in describing tile

CAWS and Brandon Pool Aquatic Life Use B waters, it is stated

18

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---

that "such conditions are irreversible." What is the technical or

scientific basis for this statement?

10.

On p. 47

ofthe Statement of Reasons, the Illinois EPA states that

the CAWS and the Lower Des Plaines River

"have unique habitat

conditions." What are the "unique habitat conditions" for the

CAWS and the Lower Des Plaines River?

11.

How does the "biological potential," referenced at p. 48

ofthe

Statement of Reasons, for the Upper Dresden Pool differ from the

biological potential for the Aquatic Life Use B Waters?

12.

With respect to the characteristics

of the Upper Dresden Pool, it is

stated at p. 14, 2

nd

paragraph, ofSulski Pre-Filed Testimony that

the mid-stream channel is flanked by littoral zones with sand and

gravel.

a)

What is the technical basis or supporting data for this

statement?

b)

Are there any studies that support this statement and

if so,

please identify them?

c)

Haven'tprior studies in the Upper Dresden Pool identified

this area

as more accurately characterized as "silty"?

(00004049.DOC

13.

14.

15.

With respect to the characteristics ofthe Upper Dresden Pool, the

Illinois EPA states at p.

51 ofthe Statement of Reasons and at

p. 14

of the Sulski Pre-Filed Testimony that it contains "earthen

bank reach with fixed aquatic and overhanging riparian vegetation,

and other zones

of refugia for aquatic life." Describe what portion

or percentage

of the Upper Dresden Pool includes such

characteristics?

It

is noted that the Upper Dresden Midstream Channel is generally

about

15 ft. deep (Statement of Reasons at p. 51; Sulski Pre-Filed

Testimony at

p. 14), but there is no discussion on the rate of flow

changes in the Upper Dresden Pool.

Isn'tthe rate of flow changes

in the Upper Dresden Pool an equally or more critical factor in

terms

ofthe effect on aquatic life than the depth of the pool?

With respect to flow changes that occur on a continuing basis in

the Upper Dresden Pool, did the Illinois EPA consider whether

those flow changes occur at a significant order

of magnitude and

whether those changes have a negative impact on aquatic life?

If

so, please explain the Illinois EPA's analysis ofthe degree and

level

of impact caused by flow changes within the Upper Dresden

Pool?

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---

16.

At p. 14 ofthe Sulski Pre-Filed Testimony, it is stated that the

"Upper Dresden Island Pool is subj ect to recurring impacts from

navigation use and upstream flood control functions, but to a lesser

degree than found in CAWS Aquatic Life Use A and Use B

waters." Please describe in greater detail

or provide some

quantification

of what is meant by the phrase "to a lesser degree."

17.

At p. 52 ofthe Statement of Reasons, the Illinois EPA states:

"Upper Dresden Pool is capable ofmaintaining a biological

condition that minimally meets the

[CWA's] Aquatic Life goal."

There are no attachments cited in support

ofthis statement. What

is

the scientific and/or technical basis for this statement?

18.

Is it the

Agency'sbelief that it is required or compelled by the

CWA to upgrade the designated uses? Please explain.

F.

Aquatic Life

Use Designations - Proposed Regulatory Language

I.

In

the proposed aquatic life use designation descriptions for each

ofthe three proposed uses, there are classes of aquatic-life

populations described. For example,

the Upper Dresden Pool is

described as being capable

ofmaintaining aquatic-life populations

consisting

of "tolerant, intermediately tolerant and intolerant

types," versus Aquatic Life A Use which is "predominated by

tolerant or intermediately tolerant types" and Aquatic Life B Use

which is "predominated by tolerant types."

[00004049.DOC

a)

b)

c)

d)

e)

f)

Is it intended that the three stated types of aquatic life,

namely (i) tolerant,

(ii) intermediately tolerant and (iii)

intolerant, are what is intended to defme the differences

between these three proposed aquatic life use designations?

Are the three stated types

of aquatic life determinative of

what the aquatic life use attainment is for the waterbody?

What pollutants or conditions did

the Illinois EPA consider

or intend be considered in determining whether aquatic life

is tolerant, intermediately tolerant,

or intolerant?

What is the intended meaning of the term "predominated"?

What is the intended meaning of the term "individuals" as

used

in the phrase "populations predominated by

individuals"?

What is the intended meaning

ofthe term "capable of

maintaining" as used in the Upper Dresden Pool Aquatic

Life use designation?

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---

2.

Do these types of aquatic life also have to be capable of adapting

to the physical conditions that follow

in the language of each use

designation? (i.e., physical conditions, flow patterns and

operational controls necessary to maintain navigational use, etc.)?

3.

Does existing data on the waterway show that the aquatic life

present has adapted to the unique flow and physical conditions

of

the waterway?

4.

What types

of "intolerant" species, as referred to in this use

designation, are capable

of adapting to the conditions described in

the proposed use designation?

5.

What scientific data supports the Illinois EPA's conclusion that

intolerant fish species can "adapt" to the type

ofphysical and flow

conditions that are present

in the Upper Dresden Pool?

6.

Has the aquatic life present in the esse and the Upper Dresden

Pool also adapted to the temperature regimes

ofthe waterway?

7.

There are also some differences in the language of the proposed

aquatic life use designations that describes

the physical conditions

for the use designation to which it appears the aquatic life must be

able to adapt. For example, compare "adaptive to the unique flow

conditions necessary to maintain navigational use and upstream

flood control functions of the waterway system" (Upper Dresden

Pool) to "adaptive

to the unique physical conditions, flow patterns

and operational controls necessary to maintain navigational use,

flood control, and drainage functions

ofthe waterway system"

(Aquatic Life Use A Waters). Are these similar

but different

descriptions intended to have different meanings and

if so, please

explain the difference in meaning?

(00004049.DOC

a)

b)

c)

Is it the Agency'sposition that the Upper Dresden Pool

does

not have "unique physical conditions" only "unique

flow conditions"?

And what is the intended meaning ofthe

term "unique" as used in these descriptions

of the aquatic

life use classification?

What is the difference between

the Upper Dresden Pool

"unique flow conditions" versus the "unique flow patterns"

of Aquatic Life Use A Waters?

The description

ofthe Upper Dresden Pool does not

include "operational controls" as does the description of

Aquatic Life Use

A.

What is the meaning of "operational

controls"?

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---

d)

In

the description ofthe Upper Dresden Pool Aquatic Life

Use, there is no mention

of "drainage functions" of the

waterway system. Is it the Agency'sposition that the Upper

Dresden Pool does not serve any drainage functions for the

waterway?

8.

Does the use of the "adaptive to" qualifying language mean that

only aquatic life that can adapt to these conditions is intended to be

protected? And, is that consistent with the

MBVCABB 2005

Report's approach to setting the=al WQS that the Agency relied

upon here?

9.

Given that the Brandon Pool is immediately upstream ofthe Upper

Dresden Pool, and the Brandon Pool is proposed for a lower use

designation and hence more lenient water quality standards for

temperature and DO, for example, than the Upper Dresden Pool,

which is proposed for a higher use with more restrictive water

quality standards, has the Illinois EPA considered the effect

of

ambient water conditions that would continue to be authorized

upstream and whether this may result in upstream dischargers

. causing violations

ofthe more restrictive water quality standards

that apply immediately downstream

ofthe Brandon Pool?

G.

§303.230 Aquatic Life A Use Designation

[00004049.DOC

I.

2.

3.

4.

In

its Statement of Reasons, the Illinois EPA states that this aquatic

life use designation is created specifically for

just a portion ofthe

CAWS. Is it the Agency's position that there are no other waters

in

of Illinois that can be reasonably expected to share the same

characteristics

as the subject portions ofthe CAWS?

Does this create a precedent that going forward, the use

classification system in Illinois will be a "waterbody by

waterbody" process with new use designations created for each

one?

Did the Illinois EPA consider the alternative

of describing this

proposed use classification more generally, such as "Aquatic Life

Use A," rather than being tied specifically to the CAWS, so that

if

in the future other waterbodies are equally suited to this use

designation they may simply be

so designated under this then

existing use?

What is the intended meaning

of "aquatic-life populations" as used

in the Aquatic Life Use A proposed regulation? Is

it intended to

exclude a few fish

of a given species that are insufficient to qualify

as a population?

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VI.

QHEI/IBI DATA

A.

QHEI/IBI - Aquatic Life Use Designations - "Analysis of Physical Habitat

Quality and Limitations to Waterways in the Chicago Area" Edward

T.

Rankin, Center for Applied Bioassessment and Biocriteria (Attachment

R)

I.

Mr. Rankin suggests that all or most ofthe CSSC be classified as

Limited Resource Water. Does the Agency agree this is the Ohio

EPA'slowest use classification for aquatic life?

2.

For the Upper Dresden Pool area of the Lower Des Plaines, Mr.

Rankin notes that habitat was good in the Brandon tailwater area

(QHEI

=

69.5), but comments that this site "may not be typical of

the downstream reaches." Does the Agency agree that the

Brandon tailwater area is not typical

of the Upper Dresden Pool

habitat quality?

3.

The sediments in the Brandon tailwater area have been identified

as being both contaminated and acutely toxic. This effectively

negates the advantages

of good habitat scores. How are the

contaminated sediments in the Upper Dresden Pool, including the

tailwater area, being considered by the Illinois EPA

in evaluating

the availability

of good habitat?

4.

With respect to the Brandon tailwater area, Mr. Rankin also states

in his report (Attachment R) that "the isolation of this site (among

impounded reaches) could influence the potential

of that site."

Does the Agency agree that the isolation

ofthe Brandon tailwater

area reduces its potential

as available good habitat for aquatic life

in the Upper Dresden Pool?

5.

What percentage ofthe total area/volume of the Upper Dresden

Pool does the Brandon tailwater occupy?

a)

Do the tailwater areas experience the same temperature

regime

as the other portions of the Upper Dresden Pool?

b)

How many fish would you expect or estimate the Brandon

tailwater area

ofthe Upper Dresden Pool to support?

(00004049.DOC

6.

7.

Isn't it true that overall habitat quality in Brandon and Lockport

pools is poor and only marginally better

in Upper Dresden, which

is the conclusion Mr. Rankin reached?

Mr. Rankin recommends that the Upper Dresden Pool'suse

classification should be "Modified Warm Water Habitat

(MWH) -

Impounded," using the Ohio EPA'suse classification system

23

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

nomenclature. Does the Illinois EPA agree that Mr. Rankin

concluded that the Upper Dresden Pool did not have the capability

of attaining the CWA Aquatic Life Uses?

8.

Mr. Rankin also states that "the physical patterns in these

watersheds are very strong

and will have a predominant influence

on the types of assemblages one might expect." Does the Illinois

EPA agree with Mr. Rankin's statement?

9.

Why didn't the Illinois EPA incorporate the QHEI and/or

numerical ranges, that

it relies on in its Statement of Reasons to

identify

when a waterbody does or does not attain the CWA's

Aquatic Life goal, into the aquatic life use designation language of

the proposed rules?

B.

Aquatic Life Use Designations - Appendix Table I, 2006 QHEI

(Attachment S)

{00004049,OOC

1.

2.

3.

4.

5.

6.

On p. 14 of SuIski'sPre-Filed Testimony, it is stated that the

Upper Dresden Pool is "capable of maintaining a biological

condition that minimally meets the

CWA's aquatic life goal."

What does "minimally meets" mean in this context?

It

appears that the Illinois EPA is relying on the fact that QHEI

scores for the Upper Dresden Pool range as high as 80 to conclude

that

Upper Dresden Pool is "capable of maintaining a biological

condition that minimally meets

the Clean Water Act's aquatic life

goal." Is this correct?

Is the Illinois EPA relying on the information contained in

Attachment S to support its statement that the QHEI scores for the

Upper Dresden Pool range as high as 80?

Is

Attachment S the only source of technical data that supports the

Illinois

EPA's statement that the QHEI scores in Upper Dresden

Island Pool range

as high as 80, which indicates excellent

biological potential?

Is it correct that neither the 2004 studies reported in the

Ranldn/CABB Report in Attachment R identified QHEI scores

higher than 67 for the Upper Dresden Pool?

The QHEI scores in Attachment S are significantly higher tllan the

2004 Ranldn/CABB Report's QHEI scores (Attachment R) and

other

QHEI scores collected in previous QHEI surveys on the

Lower Des Plaines River which did not identify QHEI scores in

tile Upper Dresden Pool higher than 67 (versus the Attachment S

QHEI scores of as high as 80). Given these inconsistencies,

24

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---

(00004049.DDC

7.

8.

9.

10.

II.

12.

13.

14.

15.

16.

describe what the Illinois

EPA has done to confIrm the reliability

and accuracy

ofthe information contained in Attachment S?

Does the Illinois

EPA know what caused the QHEI scores in

Attachment S to be so much higher than in the prior 2003-2004

surveys

ofthe Lower Des Plaines?

The "Appendix Table

I" that makes up "Attachment S" appears to

be part

of a report but the report itselfhas not been filed as an

attachment to the Illinois

EPA's Statement of Reasons. Midwest

Generation requested a copy

ofthe report, and any raw data on

which it is based, from the Illinois

EPA shortly after the Statement

of Reasons was filed with the IPCB and has still not received it.

Will the Agency produce a copy

of the subject report to which tins

Appendix is a part?

The Appendix Table I contains only summaries

of the underlying

data collected during

tlJis survey. Will the Agency produce a copy

ofthe raw data on winch these summaries are based?

What individuals conducted the survey work contained in

Attachment S? Please name and describe their prior experience in

conducting such surveys

in the Des Plaines River?

From tile

linJited information contained in Attachment S it is not

possible to

identifY the geographic location of the sampling

locations from which

tlJis data was collected and the data generally

conflicts with prior

IEI scores for the Upper Dresden Island Pool.

Will the Illinois EPA provide information or a

map showing the

specific locations

ofthese sampling locations so tllat it can be

deternJined where

tlJis data was allegedly collected?

How were the QHEI survey locations chosen?

Are the QHEI survey locations proportionately representative

of

the types ofhabitat in tile Upper Dresden Pool area?

What procedures were followed to ensure that the sampling

locations were not biased and were fairly representative

of the

habitat conditions in tile Upper Dresden Island Pool?

What were the persons perfornJing

tlJis survey told was the

intended purpose

of it?

Several survey locations have rather Ingh (>70)

QHEI scores. Are

these sites representative

ofthe majority of habitat or do they

represent small pockets

of good habitat (e.g., the Brandon

tailwater)?

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Electronic Filing - Received, Clerk's Office, January 17, 2008

---

{00004049.DOC

17.

18.

19.

20.

21.

22.

23.

24.

How much good (>60 QHEI) habitat is there in each ofthe subject

areas involved in tlns rule-making, particularly in the Upper

Dresden Pool (e.g., 10%,20%,30%, etc.)?

TIle QHEI considers substrate in terms

of size composition (e.g.,

silt vs. sand vs. cobble) but does

not take into account whetller tlle

sedinlent present may be toxic. Has it been determined whetller

any

ofthe areas that received QHEI scores >60 witll apparently

good habitat are

in fact unusable as good aquatic habitat because of

legacy pollutants in sediments?

What quality assurance and quality control procedures were

followed to collect tlle underlying data

tlmt is sUlllffiarized in

Attachment S?

Were "vouchers"

of the fish identified in tlJ.is survey retained so

tllat tlle identification

ofthe fish species reported in Attachment S

can

be independently reviewed and its accuracy confirmed?

Witll regard to tlle fish results for the

Des Plaines River contained

in tlns Appendix Table I,beginning at p. 28, there are several fish

species identified that appear questionable for tlle Des Plaines

River,

such as silver slJ.iner, blacknose shiner, highfm carpsucker,

black redhorse, and brown bullhead.

What processes were used to

ensure that these species were

not nllsidentified?

For approximately 50% of the fish samples on winch the illI

scores in Attachment S are based, it appears the emerald shiner is

included as a

"simple lithophile" when the Ohio EPA no longer

considers it to be a simple litllophile. Depending on tlle

sample/station,

tlJ.is error results in illI scores being either 2 or 4

points higher tllan tlley should be. Does

the Illinois EPA agree tlmt

the treatment ofthe emerald shiner as a simple lithoplnle results in

overstating the

illI scores for many ofthe samples and stations

including in Attachment S?

It

also appears tlmt for the fish results included in Attaclunent S,

round goby and oriental weatherfish are included in the species

count metric when they clearly should be excluded as exotics.

Does the Illinois

EPA agree?

Ifthe QI-IEI scores for tlle Upper Dresden Island Pool ranged from

45 to 67, would the Illinois

EPA still conclude that tllOse scores

support a finding that the Upper Dresden Island Pool is capable

of

maintaining a biological condition that nJ.inimally meets the

CWA's aquatic life goal? If yes, explain the underlying reasons

for your answer.

26

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

25.

At p. 14 ofthe Sulski Pre-Filed Testimony, it is noted that the Ohio

Boatable Index and the Illinois

EPA Fish Index of Biological

Integrity scores are generally 20, suggesting that the existing

aquatic life is

not achieving its expected biological potential.

Please explain why.

26.

How do the many chemical and physical causes of non- to partial

attainment identified by the Illinois

EPA in their 305(b) report

contribute to these low IBI scores?

How are the contributions of

these fish stressors being separated from temperature as a stressor?

27.

The U.S. EPA is currently re-evaluating their ammonia criteria, as

it has been found to be nonprotective

of freshwater mussels and

snails. The proposed criteria maximum concentration would be

1.75 and 2.50 mglL total ammonia as N at pH 8 (currently at 5.62

mg/L).

Criteria continuous concentration estimates range from 0.3

to 1.0 mglL. Ammonia has been identified as a major stressor in

this system. What is tile Agency doing to correct this problem?

C.

QHEI/IBI Data - CAWS and Brandon Pool Aquatic Life Use B Waters

1.

On p. 17 of tile Sulski Pre-Filed Testimony, it is stated tllat the

"[QHEI] scores in

tile CAWS and Brandon Pool Aquatic Life Use

B waters generally are below 40 and IBI scores generally are

below 22, which are to be expected

in waters witll very poor to

poor habitat attributes. Identify

tile source or attachments in which

this QHEI data is contained.

2.

On pp. 11-12 ofthe Twait Pre-Filed Testimony, it is stated tlmt

white sucker was added to the list of Representative Aquatic

Species (RAS) for tile CAWS and Brandon Pool Aquatic Life Use

B waters "[blased on tile fact tllat white sucker is present in certain

waters." Identify tile waters referenced in this testimony and the

data on which

tillS statement is based.

VII.

Effluent and Waterway Management Controls (R. Sulski Pre-Filed Testimony

p.18)

{00004049.DOC

1.

2.

Regarding the statement tllat "[t]he UAAs found that attainable

uses were in some cases not achievable without overcoming

dissolved oxygen, temperature and bacteria limitations"

(R. Suiski

at p. 18), what "cases" are being referred

to here?

Does tile Illinois

EPA contend tlmt an attainable use for the CSSC

is

not attainable solely because oftemperature? If so, identify tile

use

not being attained due to temperature and the basis, including

any supporting technical and scientific data, for the statement

tlmt

temperature alone is preventing any such use from being attained.

27

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

3.

Does the Illinois EPA contend that an attainable use for the Upper

Dresden Pool is not attainable solely because oftemperature? If

so, identify the use not being attained due to temperature and the

basis, including any supporting technical and scientific data, for

the statement that temperature alone is preventing any such use

from being attained.

4.

How will effluent cooling mitigate and overcome the other

constraints in the esse identified by Illinois EPA such as flow

alteration, contaminated sediment, lack

of adequate good to

excellent habitat,

esos and urban non-point source run-off into the

esse and Upper Dresden Pool?

5.

Describe the expected improvements to the "limitations" caused by

temperature that will occur in the esse based on requiring

"effluent cooling."

6.

Describe the expected improvements to any "limitations" caused

by temperature that will occur in the Upper Dresden Pool based on

requiring "effluent cooling."

7.

At p. I8 of the Sulski Pre-Filed Testimony, it is stated that

"[t]emperature constraints could be overcome through additional

effluent cooling at the five Midwest Generation electrical

generating stations." Explain how much additional cooling is

needed and how it will overcome the temperature constraints.

8.

Since this human dominated system is largely in non- to partial

attainment

of its uses due to the presence of a minimum of 31 key

stressors with at least

17 source classes, it is essential that a

watershed management plan be implemented that logically

addresses the dominant stressors first. Does the Agency have such

a plan?

If so, how will the 31 stressors identified in their 305(b) be

reduced?

VIII.

Aquatic Invasive Species Barrier

(00004049.DOC

1.

In the Statement of Reasons at p. 50, the Illinois EPA describes the

"aquatic invasive species dispersal barrier" installed in the

esse

at Romeoville as follows: "The barrier involves applying an

electrical charge directly

to the water at a rate intended to prevent

any fish from passing alive." While the statement notes the intent

is to prevent fish from passing alive, does the Illinois EPA know

from those responsible for the installation and operation

of the

barrier whether the barrier does effectively prevent all fish from

passing alive?

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Electronic Filing - Received, Clerk's Office, January 17, 2008

---

2.

Did the Illinois EPA study what the potential effect(s) may be of

upgrading the use designations and changing the water quality in

the CSSCILDP on the effort to prevent aquatic invasive species

from passing through the CSSC in either direction? And

if so, what

study was done and what conclusions were drawn?

IX.

Contaminated Sediments

1.

On p. 67 of the Statement of Reasons, the Illinois EPA notes that it

appears barge traffic which suspends the sediments in the

waterways contributes to causing exceedances

ofthe chromium

chronic water quality standard. Did the Agency review the effect

of sediment resuspension on aquatic life in the waterway?

2.

With respect to the proposed maintenance

ofthe §302.403

narrative standard for unnatural sludges even though the existing

conditions in the waterway violate this standard due to the

presence

of contaminated sediroents, on p. 55 ofthe Statement of

Reasons, the Agency states it intends to apply this standard to

"prevent additional accumulations

of sediment."

a)

Please defme "unnatural sludge or bottom deposits" and

clarify the sources

of such materials.

b)

Please explain in greater detail

how this application ofthe

unnatural sludges standards will

be applied? Also, how

does the language

of §302.403 clearly express tins stated

linlitation to the scope of its applicability?

{00004049.00C

3.

4.

5.

On p. 55

of the Statement of Reason, the Illinois EPA states that

"lnstoric sediroent pollution presents

an attainability concern for

some types

of aquatic life in tllese waters." What is meant by tile

term "attainability concern"? What "types"

of aquatic life are

expected to be affected by contaminated sediroents?

Contaminated sediments adversely affect bentllic and fish

communities directly and indirectly, and contaminate fish eating

birds, wildlife, and humans. This effect is continuous and is

amplified when bedded sediroents are resuspended due to high

flows and navigational traffic. Does tile Agency believe that

intolerant fish species can survive and reproduce

in a system such

as

tins? If so, please provide a scientific rationale.

Upstream sources

of chemical inputs (e.g., wastewater treatroent

effluents, CSOs, urban runoff, agricultural runoff) will continue to

contaminate new sediroents that enter this system into tile future.

How will these source contributions be reduced to promote healtlly

aquatic life conditions?

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Electronic Filing - Received, Clerk's Office, January 17, 2008

---

6.

Onp. 55 of the Statement of Reasons, it also states "[i]t is

anticipated that the sediment conditions in these waters will

continue to gradually improve over time as will the water

chemistry impacts from these historic sediments." What is the

technical/scientific basis for tins conclusion? Has the Agency

conducted any sediment studies or modeling to support tins

conclusion?

If so, please describe any such studies or modeling

conducted.

X.

Proposed Thermal Water Quality Standards

A.

Background Questions Regarding the MBI/CABB 2005 Report

(Attaclunent GG to Statement

of Reasons)

1.

In regard to the report by Midwest Biodiversity Institute (MBI) and

Center for Applied Bioassessment and Biocriteria (CABB), titled

Temperature Criteria Options for the Lower Des Plaines River

(October

11,2005),

(hereinafter "MBI/CABB 2005 Report"), the

Illinois EPA states at

p. 81 of tile Statement of Reasons tllat "U.S.

EPA Region 5 and Illinois EPA requested

tlJis study to develop

teciuJicai support and temperature criteria options for Lower Des

Plaines River."

a)

Explain tile role oftile U.S. EPA Region 5 in the request

for tins study.

b)

If tile report was based on tile Lower Des Plaines River,

how did tile Agency use the conclusions and options

presented in

tlJis report to develop temperature standards

for the CAWS,

as stated at p. 81 ofthe Statement of

Reasons?

2.

What steps did tile Agency

talce to ensure tllat tile MBI/CABB

2005 Report was consistent

Witll the 1985 U.S. EPA Guidance* for

developing water quality criteria, particularly tile level

of

protection and priority for field data?

*

U.S. EPA (United States Environmental Protection

Agency). 1985. Guidelines for deriving numerical national

water quality criteria for tile protection

of aquatic

organisms and their uses. PB85-227049. Washington, DC.

{00004049.DOC

3.

Does tile Illinois EPA Imow what portion or percentage of the fish

species database on winch tile MBI/CABB 2005 Report

recommendations are based consists ofunreviewed data?

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Electronic Filing - Received, Clerk's Office, January 17, 2008

---

4.

Did either the Illinois EPA or the U.S. EPA Region 5 have the

MBI/CABB 2005 Report peer reviewed or take any other steps to

address quality assurance issues relating to the report?

5.

Is it correct that after the MBI/CABB 2005 Report was completed,

there was no meeting of the stalceholders group for the LDP held to

review and discuss the report?

B.

Thermal Standards Development

I.

On p. 2 ofthe Twait Pre-Filed Testimony, it is stated that he

"interpreted" the thermal information Chris Yoder provided and

"translated" that information into the proposed thermal water

quality standards.

a)

Did this "interpretation" and "translation" include any

changes that were intended to address Yoder's statement on

p. 7

ofthe MBI/CABB 2005 Report that "the model output

will propagate a degree ofuncertainty, which can be

considered

in the eventual derivation and application of the

temperature criteria." If so, please explain the changes that

were made to the Yoder model output to address the

"degree

of uncertainty" in the model output?

b)

As noted at p. 3

ofthe MBI/CABB 2005 Report, "the

steady or regular increases in test temperature inherent to

the methodologies [used]

do not reflect environmental

reality." Did the Agency's interpretation ofthe thermal

information provided by Yoder result in any changes to his

recommended thermal criteria in order to "reflect

environmental reality"?

If so, please explain the changes

that were made to "reflect environmental reality"?

b)

Was any review

of Mr. Twait'sinterpretation and

translation ofthe Yoder fish species data performed by a

recognized expert in such matters?

{00004049.DOC

2.

3.

On

p. 12 ofthe Twait Pre-Filed Testimony, it is stated that the 8

species RAS list was expanded by adding the white sucker to this

list. Please provide the Illinois EPA'sjustification for adding the

white sucker to the RAS list and identify who proposed its

addition.

On p.

12 ofthe Twait Pre-Filed Testimony, it is stated that the

Illinois EPA determined that the 27 species RAS list identified by

Chris Yoder for his "Modified Use" classification was an

appropriate basis on which to derive the thermal water quality

standards for the Upper Dresden Pool.

Doesn'tthe use of only

31

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

these 27 species that are based on a "Modified Use" classification

show that the available habitat in the Upper Dresden Pool for

aquatic life is more limited than for a full aquatic life use

designation such

as "General Use"?

a)

Why does the Illinois

EPA believe that thermal water

quality standards that are more stringent than the General

Use thermal water quality standard is appropriate for a

habitat-limited fish community?

4.

On p. 12 ofthe Twait Pre-Filed Testimony, it is stated that U.S.

EPA Region V requested that the stonecat fish species be added to

the RAS list for the Upper Dresden Pool.

Did Region V explain

why and/or provide any technical justification for this request?

C.

Seasonal Ambient Temperature Data

{00004049.DOC

J.

2.

3.

4.

5.

On p. 83 ofthe Statement of Reasons and p. 13 ofthe Twait Pre-

Filed Testimony, it is stated that the

"[c]riteria for non-summer

periods are derived to maintain seasonal norms and cycles

of

increasing and decreasing temperatures." Explain what the

Agency means by the terms "seasonal norms" and "cycles

of

increasing and decreasing temperatures."

Explain how the proposed thermal water quality standards

maintain seasonal norms and cycles

of increasing and decreasing

temperatures.

To what extent, if, at all, has the Illinois EPA considered whether

the temperatures it has proposed for "maintaining seasonal norms

and cycles" necessarily reflect the thermal prerequisites

of the

aquatic species that inhabit, or that it anticipates will inhabit,

CAWS and the Upper Dresden Pool?

Explain whether the Illinois

EPA's approach to the non-summer

period thermal water quality standards is the same as the approach

suggested by Yoder for deriving such standards and

if it differs,

explain why the Agency selected tlns different approach to

deriving the non-summer tllermal standards?

On p. 83 oftlle Statement of Reasons and p. 13 ofthe Twait Pre-

Filed Testimony, it is stated tllat "[t]he monitoring location at

Route

83 on CSSC was used as tlle 'background'location because

it was not directly influence by tllermal sources such as cooling

water or Lalce Michigan and was believed to be representative of

'background'temperatures." Explain how the Agency defines

"background" as used in

tlris quotation and as applied to tlle CSSC

andLDP?

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Electronic Filing - Received, Clerk's Office, January 17, 2008

---

6.

On p. 13 ofthe Twait Pre-Filed Testimony, it is stated that:

"Because the source water

of the CAWS is composed ofthe

MWRDGC wastewater treatment plant effluents, the temperatures

ofthese waters can be expected to exceed other measures of

background or ambient temperature at certain times ofthe year.

Consequently, tile Agency decided to use

the effluent temperature

from the

MWRDGC'sNorthside, Calumet and Sticlmey facilities

as tile background temperature instead

of using temperatures at the

Route

83 Chicago Sanitary and Ship Canal station during periods

oftile non-sUll1ffier months when the effluent temperature was

higher than the background temperature. These periods were

January, February, October I-IS, November and December." (See

also Statement

ofReasons at p. 83)

(00004049.DOC

a)

b)

c)

d)

e)

For purposes of setting tllermal water quality standards,

what is the role

or purpose of "background temperatures"?

How can wastewater treatment plant effluent be considered

"background" temperature for a waterway?

As stated at p.

13 ofthe Twait Pre-Filed Testimony, the use

ofthe MWRDGC effluent temperature data as background

constituted an "alteration" to

the recommendations in

Yoder's temperature report

made by the Illinois EPA. Is it

correct that the reason this alteration was made is as stated

at p. 14

ofTwait's Pre-Filed Testimony, namely that using

Yoder'srecommendations for

how to derive the tllermal

water quality standards would have resulted in standards

that were lower tllan tile temperature

ofthe MWRDGC

effluents and thus "would have required installation of

cooling towers or other treatment teclmology to reduce tile

temperature oftllese effluents"?

Is it correct to state

tlmt the alteration to the Yoder

approach to deriving thermal water quality standards

resulted in an accommodation to tile MWRDGC so that it

would not incur the economic cost

of having to comply

with tile

non-sUll1ffier thermal water quality standards? If

so, what economic analysis if any did tile Illinois EPA

perform and did it request that tile MWRDGC submit any

such economic impact cost analysis?

Explain the underlying rationale

of the Illinois EPA's

decision to set the thermal water quality standards based on

tile goal

of avoiding cooling costs for a particular

discharger.

33

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

7.

On p. 83 ofthe Statement of Reasons, and at p. 14 of the Twait

Pre-Filed Testimony, it is stated that the Agency "used the

7S

tll

percentile as the monthly average to ensure that the seasonal norms

are preserved in the system." Explain how using the 7

Sth

percentile as the monthly average ensures that the seasonal norms

are preserved. What is the scientific basis for the

7S

tll

percentile?

Why not use the

100th

percentile?

8.

Were either the concepts of the use of the Route 83 CSSC

sampling station or the use

ofthe 7S

tll

percentile as the monthly

average presented and discussed within the various UAA

stakeholder groups meeting (i.e., Lower Des Plaines Pilot

Stakeholder workgroup, Lower Des Plaines UAA Biological

Subcommittee, CAWS Stakeholders Advisory Committee)?

9.

Has the Illinois EPA reviewed the ambient water temperatures for

the past few years to determine what the ambient water

temperatures typically are in comparison to tlle proposed tllermal

standards for tllose dischargers who are located downstream

oftlle

MWRDGC plants? Based on any such review, is the ambient

temperature oftlle waterway typically at or near the proposed non-

summer thermal water quality standards?

10.

When the ambient temperature

ofthe waterway is at or near the

thermal water quality standards, does this indicate tllat the

downstream dischargers willlilcely need to cool the water

withdrawn from the waterway before discharging it back to the

waterway after any industrial use?

II.

Impervious surfaces (e.g., streets, parking lots, rooftops) greatly

increase the temperature

of surface water runoff during summer

periods. Is this contribution being considered as part

of

"background"? If this is adversely affecting receiving water biota,

how can this be considered background? What steps are being

taldng by upstream municipalities and the IEPA to reduce this

adverse effect

ofurban runoff?

D.

Proposed "Period Average" and "Daily Maximum" Elements oftlle

Proposed Thermal Standards

100004049.DOC

I.

On p.

83 oftlle Statement ofReasons and p. 14 oftlle Twait Pre-

Filed Testimony, the Illinois EPA states that "[t]he daily maximum

ofthe summer montlls was preserved for the entire year to ensure

tllat no acute lethal temperatures are present, rather than using tlle

98

tll

percentile of ambient temperature values for the non-sununer

months or some otller statistical metllOd as suggested by Chris

Yoder."

34

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

100004049.DOC

2.

3.

4.

5.

6.

7.

8.

a)

Is the Illinois EPA saying that Yoder's recommended

methods would not have ensured that no acute lethal

temperatures are present in the water waterway and

if so,

explain the basis for this conclusion?

b)

If the Agencl, had followed Yoder'srecommendation of

using the 98 1 percentile of ambient temperature values for

the non-summer

montIls, would it have resulted in

requiring the MWRDGC to cool its effluent?

c)

How does a daily maximum standard derived for the

summer months ensure that no acute lethal temperatures are

present during the winter

montIls?

Why is it necessary to have period averages during the non-

summer months when the summer daily maximum temperature is

to be maintained in the winter months as well?

At p. 14

ofthe Twait Pre-Filed Testimony, it is stated tIlat "tIle

chronic (or sub-lethal) impacts are protected through the period

average." Identify the chronic impacts data on which the period

average limits for the non-summer months are based.

What is the justification for proposing a "period average" thennal

standard that covers a period

of 15 days during parts of the year

and 30 days during other parts

of tIle year?

How will compliance with

tIle period average standard be

determined?

In

other words, will it be the average temperature

determined from all samples tal,en during the subject period and

if

so, how many samples at a minimum will be required?

Why are the non-summer period average proposed thennal

standards identical among the three different proposed use

classifications Aquatic Life A, B and Upper Dresden Pool when

the expected resident aquatic species to be protected are different

among the three proposed uses?

Why is the January Period Average (54.6'F)so much lower than

the December Period Average (59.9'F)?

Was the "Period Average" concept presented and discussed within

the various UAA stal,eholder groups meeting (i.e., Lower Des

Plaines Pilot Stal,eholder workgroup, Lower Des Plaines UAA

Biological Subcommittee, CAWS Stal,eholders Advisory

Committee)?

35

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

9.

Is the proposed "Daily Maximum" thermal standard an

instantaneous limit or a daily average limit?

10.

If the proposed "Daily Maximum" thermal standard is an

instantaneous limit, how is a discharger supposed to calculate the

2% excursion hours proposed in the thermal water quality

standards?

E.

Proposed §302.408(a): 2% Excursion Hours and 2"C Extent of Excursion

Provisions

1.

What is the basis for the selection of a 2% excursion hours

provision in the thermal water quality standards versus the existing

5% excursion hours provision, particularly for the proposed lower

use classification waters such

as Aquatic Life B? (Scott Twait Pre-

Filed Testimony at p. 15)

2.

How does one compute the 2% excursion hour's allotment as

applied to the period average water quality standard?

3.

What is the basis for the 2"C limit on the degree of excursion over

the thermal water quality standard? (Scott Twait Pre-Filed

Testimony p. 15)

4.

Does the

ZOC

limit on the degree of excursion over the thermal

water quality standard apply to both the Period Average and the

Daily Maximum?

F.

Comparison

of Proposed Thermal Water Quality Standards to Existing

General Use Thermal Water Quality Standards

1.

On p. 86 ofthe Statement of Reasons and p. 14 ofthe Twait Pre-

Filed Testimony, it is stated that "[t]he proposed thermal water

quality standards are more stringent than the current General Use

standards for the months April through November, especially when

considering the period average."

Ifthe proposed use designation

for the Upper Dresden Pool is lower than the General Use

designation, what is the rationale for proposing thermal standards

for the Upper Dresden Pool that are more restrictive than the

current General Use thermal standards?

2.

Does the Agency believe that the current General Use thermal

water quality standards are not adequately protective of full aquatic

life use?

(00004049.DOC

a)

If so, does the Agency intend to follow the approach to

deriving thermal standards used in

tins rule-maldng to

revise tile General Use thermal water quality standards?

36

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

b)

If so, what species or life stages does it believe are not

protected, and why?

c)

What changes, in terms ofthe types or species or number of

organisms, does the Illinois EPA expect to occur if its

proposed standards are adopted?

3.

On p. 3 ofthe Sulski Pre-Filed Testimony, there are references to

numerous stressors in the subject waterway, including "legacy"

contaminants,

and it is noted that the system must support other

critical functions such as urban drainage, flood control and

navigation. On p. 8, Mr. Sulski states that the Illinois EPA

"recognized reduced biotic integrity due to impoundment" in the

Upper Dresden Pool. Given all

ofthese constraints and stressors

and the lower use classification proposed for the Upper Dresden

Pool, why does

the Illinois EPA believe that thermal water quality

standards that are more restrictive than the current General Use

Standards is appropriate for the Upper Dresden Pool?

4.

On p. 86 ofthe Statement of Reasons and p. 14 ofthe Twait Pre-

Filed testimony,

it is stated that in comparing the proposed thermal

water quality standards to the existing General Use water quality

standards that the proposed standards for the December through

March time period are "approximately equivalent" to the existing

General Use thermal standards. However, given that the existing

General Use thermal standards provide for a

60" F standard versus

the proposed standards January and February

54.3" and 53.6" F

standards, respectively, is it trnly accurate to

say that a difference

of more than 5"F is "approximately equivalent"?

G.

Comparison of Proposed Aquatic Life Use A Thermal Water Quality

Standards to Proposed

Upper Dresden Thermal Water Qnality Standards

1.

At p. 82 of the Statement of Reasons, the Illinois EPA states that

for Aquatic Life Use A waters, 8 RAS (Representative Aquatic

Species) plus white sucker were used to determine the smnmer

thermal standards whereas for the

Upper Dresden Pool, whereas

for the

Upper Dresden Island Pool waters, the option of 27 RAS

"modified

use" species were used to derive the thermal standards.

However, even given this significant difference

in the number of

aquatic species used to derive these two proposed sets of thermal

standards, the proposed thermal standards are identical for these

two different use designations.

{00004049.00C

a)

Explain how this is scientifically justified given the

differences in the expected presence

of aquatic life between

these two aquatic life use designations?

37

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

b)

Please explain how the resulting absence of any difference

in the thermal standards derived for what is a limited use

classification versus a use that is described as either

meeting or ahnost meeting the full aquatic life use goals

of

the CWA supports the approach used to derive the

proposed thermal water quality standards for the

CAW and

LDP waterways?

H.

Thermal Rule Development Process

I.

At p. 15 ofthe Twait Pre-Filed Testimony, it states: "Developing

the Agency'sproposal to the Board for thermal water quality

standards was one

of the most challenging aspects ofthe rule

development process." Explain why this was the case.

2.

At p. 15 ofthe Twait Pre-Filed Testimony, it states "there will

likely be additional information developed in the Record

ofthis

proceeding that the Board will have

to consider in malcing a final

decision." Explain the basis for

tins statement and expectation for

additional information.

XI.

Technical Feasibility and Economic Justification

of Proposed Temperature Water

Quality Standards

A.

Technical Feasibility

I.

At p. 99 of its Statement of Reasons, tile Illinois EPA states:

"With regard to temperature water quality standards, the proposed

rulemalcing will require Midwest Generation to control the

temperature

oftheir effluent by installing cooling towers and/or

instituting closed-cycle cooling or some combination

of open and

closed-cycle cooling at five

oftlleir facilities: Crawford, Fisk, Will

County and both Joliet facilities. Cooling towers and closed-cycle

cooling are also widely used and accepted treatment teclmologies

that are clearly technologically feasible. Various factors will

impact which tecimology will be more appropriate for each

facility." (Similar factual statements are also contained at p.

19 of

the Sulslci Pre-Filed Testimony)

(00004049.00C

a)

b)

Describe tile technical feasibility review that tile Illinois

EPA conducted on tile Midwest Generation facilities,

including tile review

of such factors as available space,

conflicts with existing infrastructure, sensitivity

of the area

to fogging, and otller facility and environmental factors.

Did tile Illinois

EPA conclude tlmt it is technically feasible

for each

ofthe Midwest Generation facilities to comply

witll tile proposed temperature water quality standards?

38

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

c)

What are the "various factors" referenced by the Illinois

EPA that will impact which technology will be more

appropriate for each Midwest Generation facility?

2.

In assessing technological feasibility, to

what extent has the Illinois

EPA relied upon the statements made in Attachment A at 1-22,

which states: "[i]n the early 1970's, cooling towers were not

common and were expensive. Today, cooling teclmology using

forced and natural draft is commonly used by and mandatory for

many power plants on rivers that have a similar size as those

located on the

Des Plaines River, e.g., plants operated by the

Tennessee Valley Authority

or by Wisconsin Energies on the

Wisconsin River and Kenosha,

WI"?

a)

To what specific plants and waterbodies is the Attaclunent

referring? Please provide details.

b)

Were any

ofthe plants to which the Attachment refers

required to retrofit closed-cycle cooling, or was closed-

cycle cooling part

ofthe original design?

3.

At p. 99 of its Statement of Reasons, the Illinois EPA states: "In

particular, Midwest Generation will have to study the best way to

provide cooling at its smaller, older facilities where the availability

of additional land may determine how much cooling capacity can

be installed."

a)

Which Midwest Generation facilities is the Illinois EPA

referring to as the "smaller, older" Midwest Generation

facilities?

b)

Has the Illinois

EPA made any determination as to whether

it is technically feasible for Midwest Generation to install

sufficient cooling capacity at these facilities, and if so, what

is that determination and the basis on which it was made?

4.

At p. 99 of its Statement of Reasons, the Illinois EPA states: "As

the Board is already aware, Midwest Generation is currently

considering whether to close its Will County, Crawford and Fisk

facilities. (See Attachment RR)"

[00004049.DOC

a)

b)

What facts is tlns statement based on?

Please explain tlle Agency's intent in including this

statement

in its Statement of Reasons, including an

explanation of how tlle statement is relevant to tlle issue of

the technical feasibility ofthe proposed rules?

39

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

5.

At p. 99 of its Statement of Reasons, the Illinois EPA states:

"Ultimately,

if these studies lead Midwest Generation to conclude

that it is teclmically infeasible (or economically unreasonable) to

install additional cooling capacity at these facilities, Section 316

of

the Clean Water Act allows Midwest Generation to petition for

relief from these requirements."

a)

Is it Illinois EPA'sposition, as tills statement suggests that

Section 316(a) authorizes a variance from otherwise

applicable water quality standards where tile state

determines that achieving

tllOse standards is technically

infeasible or economically unreasonable?

b)

If so, has Illinois EPA discussed its interpretation of

Section 316(a) witll U.S. EPA, and does U.S. EPA agree?

If so, please provide any available documentation of U.S.

EPA'sposition.

c)

If Midwest Generation were to seek a variance pursuant to

Section 316(a), what standard would apply?

(i)

How does that standard differ from the standard tile

Illinois EPA applied in developing tile proposed aquatic life

uses and standards?

(ii)

What new information would Midwest Generation

have to collect and supply,

if any?

(iii)

What additional proceedings would be required,

how long would they

talce, and what administrative burdens

would they impose on the Illinois EPA, the Board, and tile

Company?

(iv)

While any variance request is pending, what

requirements would apply

to Midwest Generation, and

what costs or other burdens would those impose?

{00004049.DOC

6.

7.

Is it correct that nonpoint sources oftemperature increases (e.g.,

urban runoff) will not be regulated under these proposed rules?

In

the Illinois EPA's Statement of Reasons discussion ofthe

technical feasibility

of tile temperature water quality standards, it

identifies only tile Midwest Generation facilities. Did tile Illinois

EPA conclude that no otller dischargers would be required

to

control tile temperature oftlleir effluent in order to comply with

tile proposed temperature standards and

if so, what was tile basis of

tills conclusion?

40

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

B.

Economic Justification

I.

At Section V.C. of the Statement of Reasons (p. 99), the Illinois

EPA states: "Regarding the cost of technology required to comply

with the temperature standards ofthis proposed rulemaking,

Midwest Generation has provided the Agency with only one

statement of the estimated cost of the technology needed to control

the temperature of their effluent at all five oftheir facilities in the

affected waterways (Crawford, Fisk, Will Couoty, and Joliet 9 and

29 facilities)."

a)

With respect to the "only one [MWGen] statement

of

estimated cost submitted to the Illinois EPA," is the

Agency referring to: (i)

the April 26, 2004 Thermal

Compliance Cost Study Report for the Lower

Des Plaines

River that Midwest Generation submitted to the Agency,

or

(ii) the Economic Impact Analysis for MWGen's Chicago

Area Waterway Power Generating Stations provided to the

Agency on January 3, 2005,

or (iii) the economic

information presented

by MWGen in its PowerPoint

presentation during the public meetings on March 20 and

22,2007?

{00004049.DOC

2.

3.

4.

5.

6.

Is it correct to state that the Illinois EPA requested that Midwest

Generation submit the economic reports referenced above, that the

Agency did not provide Midwest Generation with any proposed

thermal standards on which to base its economic information?

Please clarify whether Illinois

EPA contends that it requested

economic information from Midwest Generation that was not

provided to it?

Did the Illinois EPA provide any comments or suggest Midwest

Generation provide additional information to supplement the

economic statement it submitted?

Did the Illinois EPA review the Midwest Generation economic

reports submitted to the Agency and,

if so, what if anything did it

conclude regarding the economic reasonableness

of the cost of

compliance by Midwest Generation with the proposed temperature

water quality standards?

Sulski states at p. 20

of his Pre-Filed Testimony, "[o]nly minimal

information on economic impacts was provided by Midwest

Generation." What is the basis for the characterization

ofthe

Midwest Generation information as

"only minimal"?

41

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

7.

What additional economic infonnation does either the Illinois EPA

or Mr. Sulski believe Midwest Generation could have but did not

submit?

8.

Does the infonnation contained in the Midwest Generation

economic statement constitute the only economic infonnation

concerning the estimated cost

oftechnology to control effluent

temperatures that the Illinois

EPA obtained or reviewed in

connection with its preparation

ofthe proposed rules? If not,

what other such economic infonnation did the Illinois

EPA obtain

and/or review?

XII.

MWGen'sThennal Alternatives Standard

I.

In

August 2007, Midwest Generation submitted an Alternative

Thennal Standards proposal to the Illinois

EPA that is based on a

biological methodology employed by

EA Engineering using

extensive, actual fish studies perfonned over several recent years

in the Upper Dresden Pool. Please

identi:f}r who at Illinois EPA

reviewed the Midwest Generation alternative proposal and

supporting methodology.

a)

Provide an explanation

ofwhy the Illinois EPA decided not

to accept or

in any way rely on the biological methodology

using actual stream data proposed

by MWGen for deriving

proposed thennal water quality standards for the Upper

Dresden Pool.

b)

Does the Illinois

EPA agree that the fish data on which the

biological methodology is based is an extensive database

or, alternatively, data which the Agency should consider?

c)

Does the Illinois

EPA agree that the fish data on which the

biological methodology is based is reliable data?

(00004049.DOC

2.

3.

4.

Please compare and contrast the Illinois EPA recommended

standards and the

MWGen proposed standards in the context of

EPA's 1985 guidance for water quality criteria development.

Please explain the Illinois

EPA'sjustification for encouraging

biological monitoring

of waterbodies affected by anthropogenic

discharges

if

the field data are not accepted for use in establishing

water temperature criteria and standards?

At p. 15 ofTwait's Pre-Filed Testimony, it is aclmowledged that

"fish can tolerate short-tenn elevations in temperature." Do the

twenty or so years

of fish data collected for the Upper Dresden

Pool

by CornEd and MWGen support this fmding?

42

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

a)

How does the Illinois EPA's approach to deriving thermal

water quality standards recognize or incorporate this

principle?

b)

Does the Illinois EPA agree that the methodology proposed

by MWGen for deriving thermal water quality standards

does take

tins principle into account because it is based on

actual fish data collected in the Upper Dresden Pool?

Respectfully

subnlitted,

MIDWEST GENERATION, L.L.C.

BY&~

One ofIts Attome

Dated: January 17, 2008

Susan M. Franzetti

FRANZETTI LAW FIRM P.C.

lOS. LaSalle

S1., Suite 3600

Clncago, Illinois 60610

(312) 251-5590

Brent Fewell

Kristy

A.

N. Bulleit

HUNTON

&

WILLIAMS LLP

1900 K Street, N.W.

Waslnngton, DC 20006

(202) 955-1891

{00004049.DOC

43

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN

THE

MATTER OF:

WATER QUALITY STANDARDS AND

EFFLUENT LIMITATIONS FOR THE

CmCAGOAREA WATERWAY SYSTEM

AND THE LOWER

DES PLAINES RIVER:

PROPOSED AMENDMENTS TO 35 Ill.

Adm. Code Parts

301,302,303 and 304

)

)

)

)

)

)

)

)

R08-9

(Rulemaking - Water)

MIDWEST GENERATION'S QUESTIONS FOR THE ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY WITNESS CHRIS O. YODER

Midwest Generation, L.L.C. ("Midwest Generation"), by and through its

attorneys, Franzetti Law Firm P.C. and Hunton

&

Williams, submits the following

questions based upon the testimony submitted by the Illinois Environmental Protection

Agency ("Agency" or "Illinois EPA") for Chris

O. Yoder. Midwest Generation is

separately filing questions based upon the testimony submitted by the Illinois EPA for

Roy Smogor, Rob Sulski and Scott Twait in this rule-making proceeding.

Midwest Generation's questions are organized in an outline format under topical

headings based on issues raised by the pre-filed testimony

of Mr. Yoder and its

attachments. Those attachments include tlle report entitled "Temperature Criteria Option

for the Lower Des Plaines River" (Nov. 23, 2005) prepared

by tlle Midwest Biodiversity

Institute ("MBI") and tlle Center for Applied Bioassessment and Biocriteria ("CABB")

(hereinafter referred to as the "MBI/CABB 2005 Report").

The questions highlight tlle significant issues raised by Mr. Yoder's use

of

literature data and his ranking of such data under what is called a "Fish Temperature

Model" to derive recommended tllermal criteria. This approach results in overly

stringent, proposed tllermal water quality standards for the Chicago Sanitary and Ship

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

Canal ("CSSC"), Brandon Pool and the Upper Dresden Pool, withont reliance upon the

many years of stream survey and fish species data that have been submitted to the

Agency for this waterway. Midwest Generation's questions are necessarily extensive

because the hearing will be the first opportunity to pose questions to Mr. Yoder

concerning the thermal criteria he recommended to the Illinois EPA and which were

largely adopted

by the Illinois EPA in its Proposed Rules.

Midwest Generation requests that the Mr. Yoder provide answers specific to each

question posed. Midwest Generation further requests that the Hearing Office allow

follow-up questioning to be posed based on the answers provided.

QUESTIONS

1.

General Background Issues

A.

Professional Background

(00004068 .DOC}

1.

2.

3.

4.

5.

What is the primary source or sources of MBI's fi.mding?

Other than your employment with the Indiana Department

of

Health, the Ohio EPA and MBI, have you been employed

anywhere else?

When you have provided expert witness testimony in proceedings,

as described on p. 2

ofthe Pre-Filed Testimony, on whose behalf

have you provided such testimony?

For what other states have you prepared proposed thermal

standards or made recommendations with respect to thermal

standards?

Have you conducted any fish studies on the Chicago Sanitary and

Ship Canal or on waterbodies that are similar to the Chicago

Sanitary and Ship Canal? Please describe who requested those

studies, when and where they were conducted, and

identifY any

written study reports prepared. With respect to fish studies on

waters other than the CSSC, please explain the basis for your

opinion that those waters are similar to the CSSC.

2

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---

6.

Have you conducted any fish studies on the Lower Des Plaines

River or on waterbodies that are similar to the Lower Des Plaines

River? Please describe who requested those studies, when and

where they were conducted, and identify any written study reports

prepared. With respect to fish studies

on waters other than the

Lower Des Plaines River, please explain the basis for your opinion

that such waters are similar to the Lower Des Plaines River.

7.

How many peer-reviewed, scientific journal papers have you

published on the subject

ofthe development ofthermal water

quality standards? Please list them.

8.

How many invited oral presentations have you given at

national/international scientific meetings on the subject

ofthe

development

of thermal water quality standards? Please list them.

B.

Participation in LDP UAA

1.

With reference to p. 3 of the Pre-Filed Testimony, explain how you

came to be retained by the United States Environmental Protection

Agency ("U.S. EPA") Region V to provide technical assistance

related to the LDP UAA and what kind

of technical assistance you

were asked to provide?

2.

How many meetings of the LDP UAA stal(eholder workgroup did

you attend?

3.

Did you present your report to the Illinois EPA on the derivation

of

thermal water quality standards, which is being relied on here, at a

meeting

ofthe LDP UAA stal(eholder workgroup and respond to

any questions on your report?

4.

Did you present and discuss your Fish Temperature Model

approach to deriving thermal water quality standards at any

meetings

ofthe various UAA stal(eholder groups (i.e., Lower Des

Plaines Pilot

StaJ(eholder workgroup, Lower Des Plaines UAA

Biological Subcommittee, CAWS Stal(eholders Advisory

Committee)?

II.

Fish Temperature Model

A.

General Background

I0000406B.DOC J

1.

2.

Has your temperature "model" ever been field validated? If so,

please provide details

of the process.

In the Illinois EPA Statement

of Reasons at p. 81, it is noted that

the approach to deriving thermal standards was used by the Ohio

3

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---

[00004068.DOC}

3.

4.

5.

6.

7.

8.

9.

10.

EPA in 1978 and by the Ohio River Valley Water Sanitation

Commission in 1984. Where has this approach been used in the

twenty-three years since?

When this approach was used in the cited 1978 and 1984 matters,

were there extensive stream data, such as those existing here for

the Lower Des Plaines River, available for use instead

of the

published literature data approach that was used?

In

retaining the services ofthe MBI/CABB for the development of

temperature criteria, did the Illinois EPA discuss and/or review

with the MBI/CABB the alternative approach

of using and relying

on the extensive, available stream habitat and biological data for

the Lower Des Plaines River to derive thermal water quality

standards?

If so, why was an approach that utilized the available

stream data rejected?

Did either the Illinois EPA or the U.S.

EPA Region 5 provide the

MBI/CABB with any

of the stream data, which include fish studies

that have been collected in the Lower Des Plaines River for over

twenty years, to use in developing your recommendations for

thermal criteria?

Have you reviewed the August 2007

EA Engineering Report

entitled "Development

of Biologically Based Thermal Limits for

the Lower Des Plaines River" that was prepared for Midwest

Generation and submitted to the Illinois EPA?

Referring to the Ohio

EPA stream assessment program that is used

to designate use classifications for Ohio waterbodies, is it correct

that the Ohio program emphasizes the use

of field biology?

Is it correct to say that, in the Ohio stream assessment system,

attaimnent

of a use is achieved only when certain biological

endpoints are met, rather than

just relying on attainment of

chemical water quality criteria?

In Attachment R, Edward Rankin

ofthe CABB writes: "The

ultimate arbiter used in the designation of aquatic life uses under

the Ohio system is biological data." Do you agree that it makes

sense to use a similar approach to assessing thermal conditions in

situations where sufficient field data are available?

If so, what

would you view as sufficient field data to warrant use

of that

approach?

Are you a proponent

of using field-collected biological data to

assess aquatic community impairment?

4

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

11.

Do many variables (e.g., habitat, sediment quality, water quality,

flow) collectively detennine the nature and quality

of aquatic

communities?

12.

Is it true that the aquatic community integrates (i.e., responds to)

these collective inputs?

13.

How does one reliably separate the effects ofthe various inputs

that affect aquatic communities?

14.

Is the report you prepared for U.S. EPA and the Illinois EPA

consistent with 1985 U.S. EPA "Guidelines for deriving numerical

national water quality criteria for the protection

of aquatic

organisms and their uses" (pB85-227049 Washington, DC) ("1985

U.S. EPA Guidelines")? Please compare and contrast your method

with

EPA's guidance, including introductory sections.

B.

Use Designation Decisions

1.

On p. 4 ofthe Pre-Filed Testimony, it is stated that the

Temperature Criteria Options report was developed prior to and

independent

ofthe use designation determinations proposed in tlus

rule-malcing and that you did not participate in the use designation

process. Is it correct then that the thennal criteria you developed

in your report were not developed based

on the proposed uses

described in the Illinois

EPA'sProposed Rules?

2.

Is it correct that you were not asked to determine whether your

proposed thennal criteria were protective

of the aquatic life use

designation proposed for the Upper Dresden Pool and the CAWS?

3.

On p. 4 of your Pre-Filed Testimony, it is stated: "I was not asked

to propose specific thennal criteria for either the Lower Des

Plaines River or the Clucago Area Waterway System."

a)

What were you asked to do?

{00004068.DOC}

4.

5.

6.

How did you decide on the 3 categories or classifications into

which your report groups the temperature criteria options you

considered, namely General Use, Modified Use and Secondary

Contact/Indigenous Aquatic Life Use ("Secondary Contact Use")?

Was your "General Use" category the same

as the existing Illinois

General Use classification?

What would be the habitat requirements for the species that

comprise the aquatic community you have identified as

5

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

representative ofthe General Use you considered for the Lower

Des Plaines River?

7.

In

your 2005 report to the U.S. EPA and the Illinois EPA, within

the General Use Category, is

it correct that you provided several

thermal criteria options depending

on which species were included

or excluded?

a)

Why did you add or remove certain species within these

various options?

b)

What species did you add, and what difference did it mal(e

to the daily maximum values you calculated?

c)

Would the differences between the daily maximum values

calculated with and without those additional species

suggest that the Fish Temperature Model results are fairly

sensitive to the choice

of RAS? If you agree, would tlus

indicate that it is important to ensure tlJat the RAS selected

are in fact appropriate for the waterbody in question?

d)

Given tile significant effect tlJat data for a single species

can make, would you agree that

it is important to ensure

tllat the data, and especially data for species

tlJat appear to

be more sensitive, are adequate and reliable?

8.

Referring to p. 9 of the Pre-Filed Testimony, it is stated tlJat "[t]he

modified use designation in my report is designed to represent

impounded portions

ofrivers similar to tile Des Plaines River and

included 27 species."

a)

Explain tile meaning ofthe term "impounded portions" of

fivers.

b)

Does the Upper Dresden Pool fall witllin the intended

meaning

ofthe term "impounded portion" and if so why?

c)

What otller portions of tile Lower Des Plaines River at

issue in

tlus rule-making do you believe fall witlun the

intended meaning

of an "impounded portion" of a river?

d)

How does this compare to Oluo's Use Classification Imown

as "Modified, Impounded" waters? Please describe the

Oluo category, its application and rationale.

(00004068 .DOC l

9.

If you had been asked to propose specific tllermal criteria for tile

Lower Des Plaines River, would your approach differ from the

6

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

approach used in your report and if so, how? If not, why would it

be the same?

10.

In

Ohio, do intolerant fish species typically thrive (reproduce) in

Modified, Impounded use waterways?

II.

What would be the habitat requirements for the species that

comprise the aquatic community you have identified as

representative

ofthe Modified Use you considered for the Lower

Des Plaines River?

12.

Describe the type

of waterbody to which your "Secondary

Contact" category was intended to apply.

13.

Do you have any opinion as to what portions

of the LDP or the

CAWS fit your category

of "Secondary Contact" waters?

C.

Characteristics of Fish Temperature Model

(00004068.DOC)

1.

2.

3.

4.

5.

Explain how the approach you used to derive thermal standards

constitutes a "model,"

as it is termed, given that it does not appear

to employ any modeling, mathematical equations and other

characteristics typical

ofthe usual meaning of a technical model.

Rather than referring to it

as a "model", would it be more accurate

to describe it as a ranking

of fish species from most to least

sensitive based on certain thermal endpoints?

Under

tIlls ranking approach, is it correct that once the fish species

have been ranked for a particular endpoint, such as upper lethal

temperature, the proposed thermal standard is talcen from the

temperature that the literature data predict will be protective

ofthe

fish species deemed the "most sensitive," that is at the top

ofthe

ranking list?

Under tins ranking approach, is it only the literature data for the

top-ranked species tllat are used to determine the numeric

temperature limit that becomes tile proposed water quality

standard? Explain whetller, and

if so how, tlJ.is approach is

consistent witll tile 1985 U.S. EPA Guidelines.

If so, tllen is it also fair to say that, for purposes of calculating the

daily maximum and period average thermal water quality standard,

none

ofthe literature values collected for species other than the

top-ranked species is taken into account?

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6.

How does the species-specific ranking oftemperature tolerance

under your model address other factors such as population,

community, and/or food-web interactions?

7.

In

the MBI/CABB 2005 Report at p.7, you describe your approach

to developing thermal standards as being "naturally limited by the

extant thermal tolerance database" and you note that the model

output will "propagate a degree

of uncertainty." The Report goes

on to state that tins uncertainty in the recommended tllermal

criteria

"can be considered in tile eventual in the eventual

derivation and application ofthe temperature criteria." Is it correct

tllat you left it to tile Illinois EPA to determine how tllese

uncertainties in the application of tile "model outpuf' predictions

and tile literature based rankings should be addressed in its review

and revisions to your recommended thermal criteria?

a)

Did you in any way guide or discuss witll the Illinois EPA

how it should address tllese uncertainties?

D.

Updated Fish Temperature Model Database

1.

At p. 6 of your Pre-filed Testimony, you state that MBI updated

the tllermal effects data "for ORSANCO and included over 200

new and suitable thermal effects studies mostly produced after

1978."

a)

What do you mean by "suitable" tllermal effects studies?

b)

What criteria did you use to determine suitability?

c)

For tllese over 200 new studies, what

QAlQC

procedures

were employed to determine whether tile study results were

reliable and credible?

d)

Ofthese over 200 new studies, is it correct that only tllOse

that contained specific thermal tolerance endpoints used in

tile "Fish Temperature Model" were incorporated into tile

database used to develop the thermal criteria options

included in

ilie 2005 LDP Report? And if so, how many of

tllese new studies were included?

E.

Thermal Endpoints - Letllality

[00004068 .DOC)

1.

On p. 5 oftile 2005 LDP Report, it is stated tlmt "[w]hen upper

thermal endpoints were available for more ilian one metllOd tile

MBI (2005) study selected

leilial endpoints based on tile following

(most preferred first) ...", after which ilie report lists tile ChTM,

UILT, and CTM methods, in tllat order. This statement suggests

8

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

that, where multiple studies using different methods were

available, some were "selected" and some were not.

In

contrast,

however, on p. 7

ofthe Pre-Filed Testimony, it is stated that "[t]he

combined lethality input parameter (relying on ChTM, UILT and

CTM with a safety factor) was used in calculating the short-term

and long-term survival outputs

ofthe Fish Temperature Model."

a)

Where more than one study for a given endpoint existed,

did MBl use all

ofthe studies or only some?

b)

lfMBl used only selected data, please describe the

selection process in greater detail.

c)

lfMBl used only selected data, how many studies were not

used?

d)

To the extent MBl derived its "combined lethality input

parameter" using multiple studies employing the same

method, please explain how that procedure was followed

to

combine those study data.

e)

To the extent MBl used multiple studies employing

differing methods to derive a "combined lethality input

parameter," please describe how that parameter was

derived and how MBl accounted for the significant

differences among those methodologies and the range

of

endpoints they produce

2.

Referring to p. 7 ofthe Yoder Pre-Filed Testimony, there is a

discussion

of the tlIree thermal endpoints that measure lethality -

UIL

T, ChTM and CTM).

a)

Please describe the ChTM method, including tlIe meaning

ofthe phrase "a slow heating method."

b)

Explain what conditions are deemed "natural conditions."

3.

Why is the ChTM the "best available laboratory method for

simulating natural conditions"?

a)

Has your conclusion that the ChTM slow heating method is

the best available laboratory method for simulating natural

conditions been field validated?

{00004068.DOC}

4.

lfthe ChTM laboratory method is the best in simulating natural

conditions, does your approach give any preference or priority to

using ChTM laboratory data (rather than CTM or UILT data) to

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---

identifY the "combined lethality input parameter" used in your

ranking

of species? If so, explain how or ifnot, explain why not?

a)

On p. 7, it is also stated that "tins metllodology is new and

tllere are very few studies available."

IdentifY which, if

any, oftile data endpoints on which tile tllermal criteria for

the LDP are based on tile use ofChTM metllod?

5.

Referring to p. 7 ofthe Yoder Pre-Filed Testimony, it is stated tllat

"UILT is still the primary metllod relied on because it is viewed as

being more realistic tllan tile

CTM and numerous studies exist."

a)

Please describe the UILT metllOd.

b)

What malces the UILT laboratory metllod "more realistic

than" the

CTM laboratory method?

6.

With respect to the CTM method oftesting

I0000406B.DOC I

a)

b)

c)

d)

e)

Describe tile "rapid heating method" that is used in CTM

laboratory tests.

If the CTM laboratory method "does not approximate

natural conditions and produces unrealistically high

lethality endpoints" (as stated at p. 7 oftile Pre-Filed

Testimony), why are

such laboratory results included in tile

database used to derive thermal water quality standards?

On p. 7 of your Pre-Filed Testimony, you indicate tl1at you

applied a safety factor

of 2°C to tile CTM laboratory

metllod tests. Does this

mean that each time your database

contained a CTM-derived data value,

you lowered tl1at

value by a 2°C "safety factor"?

What is the scientific basis for the selection

of a safety

factor

of2' C to adjust tile CTM laboratory metllOd thermal

results and how do you

know that such a safety factor is

appropriate "to address tile inherent wealcness oftllis rapid

heating method in

minllcking nature" as stated at p. 7 ofthe

Pre-Filed Testimony? Provide scientific citations

supporting tile application

oftins safety factor.

Did

you use or consider using any of tile published

conversion metllods for relating

CTM values to UILT

values?

If you used any such metllods, please identifY

them. If you considered but did not use any such metllOds,

please explain why you chose not to use them.

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f)

Given your testimony that "much of the new data" was

based on CTM studies,

identifY which, if any, ofthe data

endpoints on which the thermal criteria for the LDP are

based are from these CTM studies? Describe the process

for data selection and exclusion

of CTM studies, including

any

QNQC

criteria used.

g)

Provide scientific citations supporting your positions on the

relative merits

ofthe UILT and CTM.

F.

Thermal Endpoints - Sub-lethal or Chronic Effects

I.

Referring to the bottom ofp. 7 of your Pre-Filed Testimony,

describe what is being measured in the following four endpoints:

Optimum temperature, Final Preferendum, Upper Avoidance

Temperature and MWAT for Growth.

a)

Is the MWAT for Growth a calculated value based on the

optimum temperature and the upper lethal temperature?

b)

What do you mean when you state "[t]hese [four endpoints]

were condensed into three input parameters for the Fish

Temperature Model by combining Optimum temperature

and Final Preferendum into a single input parameter"?

c)

Explain how the "condensing" of the Optimum temperature

and Final Preferendum into a single input parameter is done

and why it is done.

G.

Fish Temperature Model Database

(00004068.DOC)

I.

2.

3.

4.

Is it correct that the "Fish Temperature Model database" has been

created

as a general database of the various thermal endpoints data

for various fish species, and that it is not specific to any particular

watershed or waterbody?

Does the step

of identifYing the representative aquatic species for

the subject waterbody begin the process for developing thermal

criteria for a specific waterbody?

Referring to

p. 8 ofthe Pre-Filed Testimony, explain the basis for

your finding "that intolerant species are under-represented in the

thermal database, which is dominated by tolerant and

intermediately tolerant species."

What is the basis for judging species

as tolerant, intermediately

tolerant or intolerant?

II

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

5.

With respect to these intolerant species, explain what you mean by

the statement (on p.

8) that available data frequently include

"single studies (as opposed to multiple studies for the tolerant

species)

tllat do not always produce all oftile thermal endpoints in

the Fish Temperature Model."

6.

When there were multiple studies of tile same species and

endpoints, please explain how you selected the numerical value to

place in your database.

H.

Extrapolation of Thermal Endpoints (Attachment 3 to Pre-Filed

Testinlony)

I.

Within the 2005 LDP Report on the derivation ofthermal water

quality standards, various thermal endpoints are ranked in several

categories, such

as upper lethal temperature, avoidance

temperature, and

grOwtll temperature. Describe and explain the

procedure followed to extrapolate a value for a given thermal

endpoint when literature values are not available for a given

species.

2.

Where in the 2005 LDP Report can tile extrapolation formulae be

found?

3.

To tile extent such extrapolations are based on calculated

relationships among the endpoint data for a given species,

a)

When did you review the literature to establish tile

relationships among the various endpoints?

b)

When you updated your database and added the 200 new

studies referred to on p. 6

of your Pre-filed Testimony, did

you recalculate those relationships or

talee other steps to

ensure that the previous extrapolations were still accurate?

If so, please describe what you did. If not, please explain

why you did not.

(00004068.DOC)

4.

5.

If data on only one endpoint for a given species was available,

were all three

of the remaining endpoints used in tile Fish

Temperature Model developed by extrapolation from the single

available endpoint?

Is tllere any way a reviewer

of your report to tile Illinois EPA can

determine from the information it contains which values in your

report are actual literature data and which are estimated based on

your extrapolation procedure?

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6.

In

any ofthe sets ofRAS used in your report to Illinois EPA, are

the endpoint values for the top three

most sensitive species

extrapolated?

7.

When your Fish Temperature Model database was expanded, did

you check to see how the new literature data that were added to the

database compared to the old extrapolated endpoints those new

data replaced?

1.

Representative Aquatic Species

I.

In

footnote 2 to Table I of the 2005 LDP Report, you state that the

species noted were "collected in the

UAA study segment between

1994-2002."

To what data does this statement refer? Can they be

found in your report or some other report you have submitted?

2.

On pp. 8 and 9

of your Pre-Filed Testimony, you describe how you

selected the species you considered representative

of each ofthe

three use categories you considered.

a)

However, it appears that for your "General Use" RAS list

you included all species on which temperature data were

available.

Ifthis is correct, please explain how your

approach to the General Use RAS list is consistent with the

statement in your testimony?

b)

If for the General Use RAS list you did select only species

that were representative

ofthe waterbody, provide

examples

of species you excluded as being not

representative.

3.

Onp. 9 of the Pre-Filed testimony, it is stated that "[o]nly the

General and Modified RAS lists relied

on sampled data from the

Lower Des Plaines; the Secondary Contact RAS is a general

collection

oftypically tolerant species that are usually found in

highly degraded and modified waters."

a)

Please explain your reference

to "sampled data" and

identifY the source

ofthose data.

b)

To the extent you did not rely

on "sampled data" in

selecting the Secondary Contact RAS, what sources of

information did you rely on to select those RAS?

(00004068.DOC)

4.

Referring to p. 9 of the Pre-Filed Testimony, it is stated that "the

Secondary Contact RAS is a general collection

oftypically tolerant

species that are usually found in highly degraded and modified

waters." What do you mean by "highly degraded"?

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---

5.

Referring to the last sentence at the bottom ofp. 9 of the Pre-Filed

Testimony, it is stated that

"[t]he tables I provided on pp. 13 and

14

of my report illustrate temperatures that should not be exceeded

in order to protect a given percentage

ofthe species in each RAS

grouping for the four primary thermal endpoints."

What is the

meaning ofthe terms "protect," "given percentage" and "species"

referenced

in this sentence?

6.

Near the bottom ofp. 9 of your Pre-filed Testimony, you refer to

"potential" RAS lists. Explain what

you mean by "potential".

J.

QAlQC

I.

For the proposed thermal water quality standards that are based on

the literature data for the

most sensitive species in the ranking

approach,

how was the validity of that data confirmed?

a)

Identify the person(s),

if any, who reviewed any or all of

the technical literature from which these thermal values

were tal,en to determine

ifthey were acceptable.

b)

What criteria did the reviewer(s) use to determine

acceptability?

(00004068.00C)

2.

3.

4.

5.

6.

In

the 1985 U.S. EPA Guidelines, data compilers are advised to

check their data sets to determine if the data are acceptable. What

was done here to check the literature data used, to determine

if

those data are acceptable?

For example, on p. 21 of the 1985 U.S. EPA Guidelines, it states

that data should be used only

if it contains "enough supporting data

to indicate that acceptable test procedures were used and that the

results are probably reliable."

How do you know that acceptable

test procedures were used in the studies that were the basis

of your

ranking approach?

Also on p.

21 ofthe 1985 U.S. EPA Guidelines, it states that

questionable data "should not be used." What steps,

if

any, were

tal,en to ensure that questionable data were

not used?

What Quality Assurance Program Plan ("QAPP"), which is a

mechanism that the U.S.

EPA uses to ensure that only quality data

is used, was applied here to the literature data that were used in

2005 LDP Report?

A typical QAPP includes the requirement that secondary data (i.e.,

data not gathered by the principal investigator) be reviewed for

accuracy. Was a review

of secondary data contained in the

14

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

database underlying the 2005 LDP Report undertaken? If so,

please describe that review.

7.

In all ofthe U.S. EPA's Water Quality Criteria documents, each

lethal endpoint is listed separately

in a table and a column in that

table provides the data source from which that value was taleen. Is

tllls type of information provided in tlle 2005 LDP Report and, if

so, please explain where?

8.

Would tlle information presented in your 2005 LDP Report be

sufficient to allow a reviewer to conduct

an independent evaluation

of some or all of the thermal endpoints your have presented? How

couId someone do that using the information provided? For

example, how could a reviewer check tlle UILT values you report

for

willte sucker, bluegill, or any of tlle 50 or so species you

provide data on?

9.

On p. 3 ofthe Temperature Options Report that you prepared for

Region V and IEPA you state

"The original literature source was

exanlined for relevancy, originality, and completeness as much as

was possible prior to accepting the data in

the master database."

What does

the phrase "as much as was possible" mean?

a)

In

tllls same paragraph, you go on to note tllat "The

acceptance of 'extrapolated'(i.e., without a direct review of

the original publication) citations was done for some ofthe

more comprehensive tllermal effects compendia". Does

tllls mean that most ofthe data were accepted without

reviewing tllem?

b)

In tllis same paragraph

you say "A notation was made

about the extrapolated citation

of such references." Please

identify where in the report

you prepared or tlle appendices

to

tlmt report tllese notations can be found.

10.

For tlle proposed Upper Dresden Pool Aquatic Life Use tllermal

standards, is it correct that

the tllermal values on which ilie "period

average" limits are based were taleen from literature data on

ilie

willte

sucker species?

{00004068.DOC}

a)

b)

Given that it is only one species that determines tlle

numerical water quality standard value,

isn'tit very

important to determine

ilie validity oftlle literature data

iliat was ilie basis for ilie particular endpoint used in the

ranking to derive the

iliermal water quality standard?

What teclmical paper did the

willte sucker upper letllal

value tllat is being used to determine tlle proposed tllermal

IS

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

standards for the Upper Dresden Pool Aquatic Life Use

come from?

c)

Did you review that paper?

II.

With respect to the number of individuals that should be tested in

order to produce a valid test result,

a)

Do you agree that every species has a sensitivity

range/distribution to stressors?

If you disagree, please

provide your rationale.

b)

If you agree, does this suggest that a valid endpoint cannot

be derived using only one or two individuals?

If you

disagree, please provide your rationale.

c)

If you agree, would you also agree that an endpoint should

not be determined using only one

or more tests involving

one or two individual organisms?

If you disagree, please

provide your rationale.

d)

Does the MBI/CABB database contain any such data?

e)

On p. 7

of your Pre-Filed Testimony, you state that "much

of the new data that we found were based on CTM studies."

Is it correct that a CTM value, albeit not an accurate one,

can be obtained based

on testing only one fish?

(i)

Please quantify, either by number

of data points or

percentage

ofthe new data based on CTM Studies, how

many

ofthe new data are based on testing only one, or even

on only a few (say 5 or fewer) individuals

of a species?

(ii)

Please do the same for the original dataset.

12.

Did you ever conduct any sensitivity analysis to evaluate the level

and significance

ofthe many sources ofuncertainty in your model?

K.

Temperature Criteria Options (begins at p. 10 of Pre-Filed Testimony)

[00004068.DOC)

I.

2.

How did you decide what period oftime the "period average"

temperature criteria should cover? Please provide any supporting

scientific citations and rationale.

With respect to the term "daily maxima," is

tllis intended to be a

temperature level that is never exceeded at any time in the

waterbody or is it intended as a daily average value? Please

provide any supporting scientific citations and rationale.

16

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

3.

On p. 10 ofthe Pre-Filed Testimony, it is stated that "daily maxima

should ensure 100% short term survival

of all representative

species and also be consistent with the observed historical ambient

temperature record."

a)

Does the reference to 100% short term survival

of all

representative species

mean that the criteria is intended to

protect the

most sensitive species 100% ofthe time? Please

provide any supporting scientific citations for this approach

to setting thermal water quality standards.

b)

What do you mean by

your statement that the daily maxima

were set to be "consistent with the historical ambient

temperature record"? How was the historical ambient

temperature record determined for

tins purpose?

c)

Is it important to use an historical ambient temperature

tImt

reflects local conditions? What would you consider

"local"?

How would you go about assessing the validity of

a record made at a site tI1at is many riles away?

{00004068.DOC}

4.

5.

6.

7.

8.

9.

WitIl regard to the calculation of daily maximums and period

averages for tile non-summer montIls,

why is your recommended

basis tile use

ofbackground temperatures ratIler than using the

same approach as was used for

the summer months? Please

provide any supporting scientific citations for your

recommendation.

For

the non-summer montIls' temperatures, what is the scientific

basis for your suggestion that the geometric

mean ofthe

background temperatures should be used for the period average

temperature criteria?

For

tile non-summer montIls' temperatures, what is tile scientific

basis for your suggestion

tImt the 98

th

percentile should be used for

tile daily maximum temperature criteria?

Have your suggestions for setting non-summer months thermal

criteria been used by any other states and

if so, where?

If the concept for setting non-summer month tIlermal criteria is to

maintain the normal seasonal cycles, is tile "normal seasonal

cycle" what the waterbody ambient data has shown

to be "normal"

for that waterbody?

If not, define "normal" as used in tllis context.

Explain

how "maintaining the normal seasonal cycles will protect

essential functions such as growth, gametogeneisis and spawning"

17

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

as stated on p.

11

of the Pre-Filed Testimony, including what

"gametogeneisis" means.

I

O.

If a waterbody does not provide the necessary habitat or conditions

for spawning, should that affect

how the summer and non-summer

month thermal criteria are derived?

II.

Are there any biological data assessments or syntheses that suggest

that "maintaining the normal seasonal

cycle" requires the

achievement

of"background" ambient temperatures, uninfluenced

by man?

12.

On p. 12 of your Pre-Filed Testimony, it is stated that occasional

thermal exceedances

"are inevitable and may not necessarily result

in a biologically impaired use. A conclusion

that I have reached is

that temperature excursions should be evaluated with direct

biological measures in a receiving waterbody

that is representative

of reference or least impacted conditions."

a)

Is the second sentence intended to follow from the first?

b)

Are you suggesting that, to evaluate the biological

significance

of exceedances of the temperature standards

you have recommended, the Illinois EPA would need to

evaluate the effects

ofthe exceedance ofthose temperatures

at reference sites?

c)

If so, how would tins be done? Do you consider it

practical? Is it part

ofyour recommendation?

d)

If not, please explain further what you mean by tllese

statements.

1.

UAA Waterway Stressors and Constraints

(0000406S.o0C)

I.

2.

3.

How does tile tllermal endpoint ranking approach used here to

identifY thermal criteria options account for the presence or

absence of adequate habitat?

How does tile thermal endpoint ranking approach used here to

identifY tllermal criteria options account for tile presence or

absence

of other stressors (i.e., anlffionia, metals, nonpolar

orgarJics, emerging contaminants, endocrine disruptors, patllogens)

for fish

in tile subject waterbody?

How are tile fish populations and communities in the Upper

Dresden

Pool and the CSSC likely affected by tile several sources

18

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

and causes of non- to partial attainment identified by the IEPA in

their

most recent 305(b) report?

4.

How are the fish populations and communities in the Upper

Dresden Pool and the CSSC likely affected by elevated levels

of

mercury and PCBs?

5.

Recent data suggest that fish populations have been adversely

affected

by chronic exposure to low levels of endocrine disruptors,

commonly found in waterways receiving municipal effluents, such

as

tins one. How does such exposure to low levels of endocrine

disruptors likely affect "intolerant" fish species that are included in

the proposed use designation for the

Upper Dresden Pool?

6.

Highly

contanJinated and toxic sediments have been documented

to exist throughout

tins waterway, including in the few desirable

habitats

of tile Upper Dresden Pool.

It

is well documented tlmt

sediments such as these adversely affect fish communities and

pose

both an ecosystem and human health risk. How does

exposure to

contanJinated and/or toxic sediments potentially affect

"intolerant" fish species that are included

in the proposed use

designation for the Upper Dresden Pool?

7.

At the bottom ofp. 11 ofthe Pre-Filed Testimony, it is stated that:

"Selecting a temperature representative

ofbackground

temperatures in this system is complicated

by the physically and

tllermally altered characteristics

of the Upper Illinois and tile

Chicago Area Waterway Systems."

a)

Explain what you mean

by "tllermally altered

characteristics."

b)

Describe what tile complications are that referenced in this

testimony.

c)

Did you take into account tllese complications in your

suggestions for

how to develop tile SUlllmer and non-

SUlllmer month temperature criteria? If so, explain how.

M.

Acclimation

1.

Explain the relationslnp between acclinlation temperature and tile

resultant upper letlml temperature during toxicity tests?

[00004068.DOC}

a)

Is it true that until the so-called ultimate upper incipient

letllal temperature is reached, the upper lethal temperature

varies positively with the

acclinlation temperature?

19

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

b)

On p. 7 of your Pre-Filed Testimony, you indicate that the

upper lethal temperatures in your literature studies database

are based

on fish acclimation temperatures of25-30° C.

Did you include tins caveat because ofthe relationslnp

between acclimation temperature and the resultant UILT?

c)

Did you similarly restrict (i.e., to studies based on fish

acclimation temperatures

of 25-30°C) the upper lethal

endpoints in the dataset you prepared for the ORSANCO

project?

If not, why not?

d)

Was the upper lethal temperature for white sucker based on

acclimation temperatures

of 25-30° C?

e)

Did you deternJ.ine the acclimation temperatures used in the

laboratory studies for any

ofthe other species in your

database?

Ifthe laboratory study did not use an

acclimation temperature of25-30° C, did you exclude the

laboratory study results from your database?

f)

Is it true that the upper lethal temperatures for a number of

species (e.g., silver lamprey, stonecat, and redear sunfish)

in your database were based on testing winter-acclimated

fish that had been acclimated at <5° C?

g)

Is it correct that the upper lethal values in your database for

these and other species were based

on testing only one or

two specimens?

N.

Thermal Avoidance

1.

Is it correct that the thermal water quality standard values derived

in the MBI/CABB Report were derived exclusively from

laboratory data?

2.

Do you agree that in lab testing, the test organisms have nowhere

to

go to escape potentially harmful or lethal temperatures?

3.

Do you agree that in a waterway, fish can detect high temperatures

and will avoid them provided thermal refugia are available?

4.

Is it correct that the derivation process used here does not account

for tins tllermal avoidance behavior in fish?

5.

Is tllermal avoidance by fish a generally accepted phenomenon?

O.

Absence of Early Life Stages - CAWS Aquatic Life Use B Waters

(0000406B.DOC}

20

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

1.

On p. 60 ofthe Statement of Reasons, the Illinois EPA states that

the CAWS Aquatic Life Use B waters "do not have the potential to

consistently support early life stages

of fish" and tlmt these waters

"can attain only suboptimal grOwtll conditions for fish." Did tile

ranking approach on which tile CAWS Aquatic Life use

B

tllermal

standards are based

talce tllese findings conceming tile absence of

early life stages into account in deriving the proposed water quality

standards and

if so how?

2.

Does this mean that fish are unlikely to reproduce in tins system

and are present due to migration from refugia and stocking?

P.

2003-2006 ORSANCO Project Report (Attachment 3 to Yoder Pre-Filed

Testimony)

[00004068.DOC}

1.

2.

3.

4.

5.

6.

In

your [mal report to ORSANCO dated 27 January 2006, the

seasonal average limit of75.2° F and the daily maximum

linlit of

78.8° F that you presented in Table 12 were based on the upper

letllal endpoint for logperch, correct?

Isn'tit true iliat these values (75-79° F) are well below ilie anlbient

temperatures that often prevail in

ilie Ohio River during the

surmner?

Was your recommended value based

on an endpoint for logperch

that, rather than being based

on a lethal toxicity test, was based

instead

on a reproductive (chronic) endpoint?

Have logperch in tile

Olno River been collected at temperatures

above what your report suggests are

ilie short-term and long-term

lethal temperatures for logperch?

Is it correct

iliat based on ilie difference between tile recommended

logperch-based Fish Temperature Model criteria and

ilie actual

ambient fish survey data for the subject waterway, you made a

revised recommendation to ORSANCO for

ilie thermal SUllllller

criteria? And was tlmt revised recommendation based on tile

stream survey ambient temperature record instead

of ilie Fish

Temperature Model?

Your logperch data for the ORSANCO project came from the

Hubbs 1961 report but our review

oftilat report did not identify a

basis for concluding

tlmt 22° C is tile optimum value for logperch.

Explain how you reached

ilie conclusion tlmt 22° C is ilie optimum

temperature for logperch.

21

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

7.

In

the report you prepared for ORSANCO (Yoder et al 2006), you

stated (p. 2) that most studies that you relied upon were accepted at

"face value" (your term). What did you mean by at face value?

8.

On p. 26 ofthe 2006 ORSANCO report, you state "acceptable data

were then recorded in the master thermal effects database." What

criteria did you use in that project to determine whether the

literature data was "acceptable?"

9.

In

Table 9 of the 2006 ORSANCO Report, please explain what the

numbers in the columns headed "Original Sources" and "New

Literature" refer to.

10.

In

the ORSANCO study, you provided temperature options based

on two RAS lists, a so called all-possible RAS list and a main-stem

restricted RAS list. Is that correct?

a)

Wllat is the difference between those two lists?

b)

Did you develop the species on either ofthose lists? Ifnot,

who did?

11.

The Mainstem-Restricted List in your 27 January 2006 Report

(Table 11) would result in a period average limit

of 84.2

0

F and a

daily maximum limit

of 87.8

0

F?

a)

What species has these lethal endpoints?

b)

Wllat is the source ofthese lethal endpoints?

c)

Were the upper lethal endpoints established using the CTM

methodology?

d)

At what acclimation temperatme did they test the subject

fish species?

e)

How many fish were used in the testing or how many trials

did they do with this species?

Q.

Ohio - Muskingum River

(0000406B.DOC)

1.

According to Section 3745-1-07 ofthe Ohio Regulations, the

thermal water quality standards period average for the period

16

June through 15 September is 85

0

F, with an allowable daily

maximum

of 89

0

F. Were these thermal water quality standards

based on the same "modeling" approach you used on the

ORSANCO project and have proposed here for the Lower Des

Plaines River?

22

Electronic Filing - Received, Clerk's Office, January 17, 2008

---

2.

Do you agree that the Muskingum River limits of

85

0

F average

and

89

0

F maximum are essentially identical to the values

proposed for the Upper Dresden Pool by Illinois EPA?

a)

Describe the characteristics ofthe Muskingum River in

comparison with the Upper Dresden Pool. Is it your

opinion that these two waterbodies are substantially

similar?

If so, why do you believe they are similar?

Respectfully submitted,

MIDWEST GENERATION, L.L.C.

Bcf1dd~~rr)

One ofIts Attorne

Dated: January 17, 2008

Susan

M. Franzetti

FRANZETTI LAW FIRM P.C.

10 South LaSalle Street

Suite 3600

Chicago, IL 60603

(312) 251-5590

Brent Fewell

Kristy

A. N. Bulleit

HUNTON

&

WILLIAMS LLP

1900 K Street, N.W.

Washington, DC 20006

(202) 955-1891

[00004068.DOC)

23

Electronic Filing - Received, Clerk's Office, January 17, 2008