BEFORE THE ILLINOIS POLLUTIUON CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAYS SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO 35 Ill. Adm.
Code Parts 301, 302, 303 and 304
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R08-09
(Rulemaking- Water)
MOTION FOR LEAVE TO FILE PRE-FILED QUESTIONS
The Environmental Law and Policy Center of the Midwest (“ELPC”) and the
Sierra Club hereby move for leave to file the attached pre-filed questions to the Illinois
Environmental Protection Agency (“IEPA”). In support of this motion, movants state:
1. Answers to pre-filed questions are essential to understanding the position of
the Illinois Environmental Protection Agency.
2. The questions are somewhat complex and better considered responses may be
obtained through pre-filed questions.
3. Movants believe that the use of pre-filed questions will expedite the hearing of
this matter.
Wherefore, movants move for leave to file the attached pre-filed questions to the
IEPA/IDNR.
Respectfully submitted,
Albert F. Ettinger (Reg. No. 3125045)
Jessica Dexter
Counsel for Environmental Law & Policy
Center and Sierra Club
Dated: January 18, 2008
Electronic Filing - Received, Clerk's Office, January 18, 2008
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, the undersigned, hereby certify that I have served the
attached PRE-FILED QUESTIONS OF ENVIRONMENTAL LAW & POLICY
CENTER upon:
Mr. John T. Therriault
Assistant Clerk of the Board
Illinois Pollution Control Board
100 West Randolph Street
Suite l1-500
Chicago, Illinois 60601
via electronic mail on January 18, 2008; and upon the attached service list by depositing
said documents in the United States Mail, postage prepaid, in Chicago , Illinois on
January 18, 2008
Respectfully Submitted,
Albert Ettinger
Senior Staff Attorney
Environmental Law & Policy Center
35 E. Wacker Dr., Suite 1300
Chicago, IL 60601
aettinger@elpc.org
Electronic Filing - Received, Clerk's Office, January 18, 2008
James L. Daugl~erty
Thorn Creelc Basin Sanitary District
700 West End Avenue
Clicago Heights, IL 604 1 1
Sharon Neal
Commonwealth Edison
125 South
ClarIc Street
Chicago, IL 60603
Tracy Elzemeyer
American Water Company
727
Craig Road
St. Louis, MO 63 141
Margaret
P. Howard
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Irwin Polls
Ecological Monitoring and Assessment
3
206 Maple Leaf Drive
Glenview, IL 60025
James
Huff
Huff
&
Huff, Inc.
9 15 Harger Road, Suite 330
Oak Brook,
IL
60523
William Richardson
Chief Legal Counsel
Illinois Department of Natural Resources
One
IVatural Resource Way
Springfield,
IL 62702
Jeffrey C. Fort
Ariel J. Tesher
Sonnenschein Nath
&
Rosenthal LLP
7800 Sears Tower
233
S. Waclcer Drive
Chicago, LL 60606-6404
Dr.
Thomas J. M~uphy
2325 N. Clifton St
Chicago, IL 6061 4
B etl~ S tei~lllorn
2021 Timberbroolc
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 Networlcs
1902 Fox Drive, Suite 6
Champaign, IL 6 1820
Thomas V. Skinner
Thomas W. Dimond
Kevin Descharnais
Mayer Brown LLP
71 South Waclcer Drive
Chicago,
L
60606
Electronic Filing - Received, Clerk's Office, January 18, 2008
Robert VanGysegl~em
City of Geneva
1800 South St
Geneva, IL 60 134-2203
Jerry Paulsen
Cindy
Slcruluud
McHenry
County Defenders
132 Cass Street
Woodstoclc, 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
40 1 N. Michigan Ave
Chicago,
IL 6061 1
Bernard Sawyer
Thomas Granto
Metropolitan Water Reclamation District
6001 W.
Pershing Rd
Cicero,
IL 60650-4 1 12
Lisa Frede
Chemical Industry Council of Illinois
2250 .E. Devon Ave
Suite 239
Des Plaines, IL 6001 8-4509
Fredric Andes
Erika P owers
Barnes
&
Thornburg
1 North Waclcer Dr
Suite 4400
Chicago, IL 60606
Jack Darin
Sierra Club
70 E.
Lake St
Suite 1500
Chicago, IL 6060 1-7447
Bob Carter
Bloomington
Norma1 Water Reclamation
PO Box 3307
Bloomington, IL 6 1702-3307
Tom
Muth
Fox Metro Water Reclamation District
682 State Route 3 1
Oswego, IL 60543
Kennetl~ W. Liss
Andrews Environmental Engineering
3300 Ginger Creek Drive
Springfield, IL 627 1 1
Albert Ettinger
Jessica Dexter
Environmental Law
&
Policy Center
35 E. Waclcer
Suite 1300
Chicago, IL 6060 1
Viclcy McKinley
Evanston Environmental Board
223 Grey Avenue
Evanston, IL 60202
Marc Miller
Jamie S.
Caston
Office
of Lt. Governor Pat Quinn
Room 41 4 State House
Springfield, IL 62706
Electronic Filing - Received, Clerk's Office, January 18, 2008
SERVICE LIST R08-09
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
100 West Randolpl~ St
Suite 1 1-500
Chicago, IL 60601
Frederick Feldrnan
Ronald Hill
Louis
Kollias
Margaret Conway
Me.tropolitan
Water Reclamatiol~ District
100 East Erie St
Cllicago, IL 606 1 1
Ricl~ard Kissel
Roy Harsch
DrinlcerBiddle
19 1 N. Wacker Dr.
Suite
3700
Chicago, IL 60606-1 698
Claire Manning
~rown Hay
&
Stephens LLP
700 First Mercantile
Banlc Bldg
205
S. Fifth St
Springfield, IL
62705-2459
Deborah J. Williams
Stefanie N. Diers
Illinois EPA
1 02
1 Nortll Grand Avenue
Springfield, IL 62794-9276
Katherine Hodge
Monica
Rios
Hodge Dwyer Zeman
3 150 Roland Avenue
Springfield, IL 62705-5776
Charles
Wessell~oft
James EIarrington
Ross
&
Hardies
1 50 N. Michigan Ave
Clicago, IL 60601-7567
Dennis L.
Duffi eld
Director of Public
Worlcs
&
Utilities
City of
Joliet
92 1 E. Washington St
Joliet, IL 6043 1
Keith Harley
Elizabeth Scherzlcier
Clicago
Legal Clinic, Inc.
205 West Monroe Street
4"' Floor
Clicago, IL 60606
Frederick Keady
Verrnillion Coal Company
1979
Jolms Drive
Glenview, IL 60025
Fred L.
Hubbad
P.O. Box 12
16 West Madison
Danville, IL 6 1834
Georgia
Vlal~os
Naval Training Center
2601A Paul Jones St
Great
Lalces, IL 60088-2845
W.C. Blanton
Blackwell Sanders LLP
4801 Main St
Suite 1000
Kansas City, MO 641
12
Kay Anderson
American Bottoms
One
American Bottoms Road
Sauget,
IL 62201
Electronic Filing - Received, Clerk's Office, January 18, 2008
BEFORE THE ILLINOIS POLLUTIUON CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAYS SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO 35 Ill. Adm.
Code Parts 301, 302, 303 and 304
)
)
)
)
)
)
)
)
)
)
R08-09
(Rulemaking- Water)
PRE-FILED QUESTIONS OF
ENVIRONMENTAL LAW AND POLICY CENTER AND SIERRA CLUB
The Environmental Law and Policy Center of the Midwest and the Illinois Chapter of the
Sierra Club hereby file questions to the Illinois Environmental Protection Agency regarding its
proposal to change certain water quality standards in the above-captioned proceeding.
1. Regarding p. 13 of the pre-filed Twait testimony, were the MWRDGC treatment plant
discharge temperatures used to set non-summer average temperatures for the Upper
Dresden Pool instead of the Route 83 temperatures? If so, why?
2. Regarding p. 14 of the pre-filed Twait testimony, how was the 75
th
percentile of the
MWRDGC and Route 83 Chicago Sanitary and Ship Canal data used? Was the Route 83
data used in calculating the “Period Average” standards, and, if so, for what water
segments and months?
3. Does the Agency expect to seek changes to the current adjusted standard at the I-55
bridge?
4. With regard to Twait testimony at p. 15, what is the biological justification for allowing
excursions above the daily maximum 2% of the time?
5. With regard to Twait testimony at p. 15, what is the biological justification for allowing
excursions up to 2º C (or 36º F)? Would this provision allow temperatures above 92 º F
for seven days straight in the Dresden Pool?
6. Were the temperatures that Chris O. Yoder calculated as “Optimum,” “Growth MWAT,”
and “Avoidance (UAT),” used in any way in writing the IEPA temperature proposals? If
so, how?
7. On page 22 of the Statement of Reasons, in the sentence describing the goal of the UAA
process, language that is identical to one of the regulatory factors of a UAA analysis is
used (“adverse widespread economic and social impact” from 40 C.F.R. 131.10(g)(6)).
Electronic Filing - Received, Clerk's Office, January 18, 2008
Has this factor has been used to justify any element of the proposal before the Board? If
so, what element(s)?
8. What analysis did IEPA use to decide which recreational activities would be considered
primary recreation, which incidental-contact recreation, and which non-contact
recreation?
9. On page 25 of the Statement of Reasons, and page 11 of the Sulski pre-filed testimony
Incidental Contact Recreation is defined as “any recreational activity in which human
contact with the water is incidental and in which the probability of ingesting appreciable
quantities of water is minimal.” How did IEPA determine that the probability of water
ingestion is minimal for each of the following activities: water skiing, jet skiing,
kayaking, rowing/skulling, canoeing, in-stream fishing, and wading (especially by
children)? What level of probability constitutes “minimal”? What is an “appreciable
quantity” of water?
10. Did IEPA analyze the risk of capsize for the following small-craft recreational boating
activities: rowing, kayaking, canoeing?
11. Did IEPA analyze the probability of ingesting water in the event of a kayak capsize?
Rowing scull capsize? Canoe capsize? Water skiing? Jet skiing?
12. The footnote on page 43 of the Statement of Reasons states that kayaking and jet skiing
have some likelihood of water ingestion, but participants in those activities are not as
likely to ingest water as swimmers, for example. Are you aware of any studies or data
that support this conclusion? If so, please identify such studies or data.
13. Did IEPA explore creating an intermediate recreational designation between incidental
contact and primary contact?
14. In the analysis of UAA Factor 4 on page 34 of the Statement of Reasons, IEPA states that
the physical attributes of the reaches designated “Incidental Contact” range from “deep-
draft, steep-walled channels to gradual sloped, manicured banks.” What reaches (or
portions thereof) can be described as having “gradual sloped, manicured banks”? How
does this physical attribute preclude primary contact recreation?
15. The descriptions of physical attributes of all three recreational use designations (Non-
Recreational, Non-Contact Recreation and Incidental Contact Recreation) on pages 33-34
of the Statement of Reasons state that certain reaches are “deep-draft, steep-walled”
waterways. What thresholds must be met to fit this description (i.e. how deep and how
steep)? Was any evidence of existing recreational use found in these areas?
16. On page 34 of the Statement of Reasons and on page 11 of the Sulski prefiled testimony,
you state that the physical limitations described are “irreversible.” Please explain what is
meant by “irreversible.”
2
Electronic Filing - Received, Clerk's Office, January 18, 2008
17. On page 42 of the Statement of Reasons, IEPA concluded that “portions of the CSSC and
the Brandon Pool cannot attain secondary contact recreational uses.” “Secondary
contact” is not a term used by IEPA in this proposal. Please clarify its definition as IEPA
understands it.
18. On page 23 of the Statement of Reasons, it is stated that the UAA was undertaken to
determine the existing and potential uses of the CAWS. Please explain how you
evaluated the potential uses.
19. Is IEPA aware of water skiing taking place anywhere on the CAWS or the Lower Des
Plaines? If so, please describe the information the Agency has on the location and
frequency of such water skiing.
20. In the analysis of habitat conditions for aquatic life on page 50 and 51 of the Statement of
Reasons and in the Sulski prefiled testimony at page 8, 15, 16 and 17 it is stated that poor
habitat conditions are irreversible. Please explain what is “irreversible” about these
habitat conditions.
Respectfully submitted,
Albert F. Ettinger (Reg. No. 3125045)
Jessica Dexter
Counsel for Environmental Law & Policy Center
and Sierra Club
Dated: January 18, 2008
3
Electronic Filing - Received, Clerk's Office, January 18, 2008
