1
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF C O O K )
3
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
4
COUNTY DEPARTMENT, LAW DIVISION
5 IN THE MATTER OF:
)
)
6 WATER QUALITY STANDARDS AND
)
EFFLUENT LIMITATIONS FOR THE
) R08-9
7 CHICAGO AREA WATERWAY SYSTEM AND ) (Rulemaking -
THE LOWER DES PLAINES RIVER:
) Water)
8 PROPOSED AMENDMENTS TO 35 Ill. )
Adm. Code Parts 301, 302, 303
)
9 and 304
)
10
TRANSCRIPT OF PROCEEDINGS held in the
11 above-entitled cause before Hearing Officer Marie
12 Tipsord, called by the Illinois Pollution Control
13 Board, pursuant to notice, taken before Rebecca
14 Graziano, CSR, within and for the County of Cook and
15 State of Illinois, at the James R. Thompson Center,
16 100 West Randolph Street, Room 9-040, Chicago,
17 Illinois, on the 28th Day of January, A.D., 2008,
18 commencing at 10:00 a.m.
19
20
21
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24
L.A. REPORTING (312) 419-9292
2
1
A P P E A R A N C E S
2
ILLINOIS POLLUTION CONTROL BOARD:
3
Ms. Marie Tipsord, Hearing Officer
4
Ms. Alisa Liu, P.E., Environmental Scientist
Mr. Anand Rao, Senior Environmental Scientist
5
Mr. Tanner Girard, Acting Chairman
Mr. Nicholas Melas
6
7
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:
8
Ms. Stefanie Diers
Ms. Deborah Williams
9
Mr. Robert Sulski
Mr. Scott Twait
10
Mr. Roy Smogor
Mr. Howard Essig
11
Ms. Marcia Willhite
12
U.S. ENVIRONMENTAL PROTECTION AGENCY:
13
Ms. Linda Halls
Mr. Peter Swenson
14
15
THE NATURAL RESOURCE DEFENSE COUNSEL:
Ms. Ann Alexander
16
17
ENVIRONMENTAL LAW AND POLICY CENTER,
33 East Wacker Drive
18
Suite 1300
Chicago, Illinois 60601
19
(312) 795-3707
BY: MR. ALBERT ETTINGER
20
MS. JESSICA DEXTER
21
Appeared on behalf of ELPC, Prairie Rivers
Network, and Sierra Club,
22
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24
L.A. REPORTING (312) 419-9292
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1
A P P E A R A N C E D C O N T I N U E D
2
FRANZETTI LAW FIRM P.C.
3
10 South LaSalle Street
Suite 3600
4
Chicago, IL 60603
(312) 251-5590
5
BY: MS. SUSAN FRANZETTI
6
Appeared on behalf of the Midwest Generation,
L.L.C.,
7
8
HODGE DWYER AND ZEMAN
3150 Roland Avenue
9
Post Office Box 5776
Springfield, IL 62705
10
(217) 523-4900
BY: MR. THOMAS SAFLEY
11
MS. MONICA RIOS
12
Appeared on behalf of the Illinois Environmental
Regulatory Group,
13
14
BARNES AND THORNBURG LLP
1 North Wacker Drive
15
Suite 4400
Chicago, IL 60606
16
(312) 357-1313
BY: MR. FREDRIC ANDES
17
Appeared on behalf of the Metropolitan Water
18
Reclamation District of Greater Chicago,
19
SONNENSCHEIN NATH AND ROSENTHAL, LLP
20
7800 Sears Tower
Chicago, IL 60606
21
(312) 876-7934
BY: MR. JEFFREY FORT
22
Appeared on behalf of Citgo,
23
24
L.A. REPORTING (312) 419-9292
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1
A P P E A R A N C E S C O N T I N U E D
2
THE CHICAGO LEGAL CLINIC
3
2938 East 91st Street
Chicago, Illinois 60617
4
(773) 731-1762
BY: MR. KEITH HARLEY
5
Appeared on behalf of the Southeast
6
Environmental Task Force,
7
MAYER BROWN LLP
8
71 South Wacker Drive
Chicago, IL 60606
9
(312) 782-0600
BY: MR. TOM DIAMOND
10
Appeared on behalf of Stepan and Company,
11
12
O'KEEFE LYONS AND HYNES
30 North LaSalle Street
13
Suite 4100
Chicago, IL 60602
14
(312) 621-0400
BY: MR. KEVIN HYNES
15
Appeared on behalf of the Chemical Industrial
16
Council.
17
18
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21
22
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24
L.A. REPORTING (312) 419-9292
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1
MS. TIPSORD: Good morning. My name
2 is Marie Tipsord, and I've been appointed by the
3 Board to serve as hearing officer in this proceeding
4 entitled Water Quality Standards in Effluent
5 Limitations for the Chicago Area Waterway System and
6 Lower Des Plaines River -- excuse me -- proposed
7 amendments to 35 Il Admin Code 301, 302, 303, and
8 304. The docket number is R08-9.
9
To my right is Dr. Tanner Girard.
10 He's acting chairman of the Board and the lead Board
11 member assigned to this matter. To my left is Anand
12 Rao, Alisa Liu from our technical staff, and I
13 believe member Melas will be joining us, Nicholas
14 Melas.
15
This is the first hearing to be
16 held in this proceeding. The purpose of today's
17 hearing is to hear the pre-filed testimony of the
18 proponent, the Illinois Environmental Protection
19 Agency. After the Agency has introduced the
20 witnesses, they will be sworn in. The testimony
21 will be taken as if read, and we will proceed
22 directly to questions.
23
The order of the hearing was the
24 subject of a prehearing conference on Friday. As
L.A. REPORTING (312) 419-9292
6
1 discussed at the prehearing conference, we will
2 begin by questioning the Agency's witnesses
3 considering the more general aspects of the
4 proposal.
5
We will proceed today with those
6 questions, and we will begin with the Illinois
7 Environmental Regulatory Group. After IERG, we go
8 to Midwest Gen -- Midwest Generation, LLC, excuse
9 me. It's the first time on the record. I should
10 give the full name. Flint Hills Resources, Joliet
11 facility, Citgo Petroleum Corporation and PDB
12 Midwest, LLC, Corn Products International, Inc.,
13 Chemical Industry Counsel of Illinois, Metropolitan
14 Water Reclamation of Greater Chicago, Stepan
15 Company, Environmental Law Policy Center, Prairie
16 Rivers Network and Sierra Club, Exon Mobile Oil
17 Corporation.
18
We will address the more general
19 questions pre-filed by each group, and then proceed
20 with more specific questions for each witness. As I
21 discussed off the record, this means that we will do
22 them by general topic area as much as possible so
23 that we can keep topics together so that the lead
24 questioner may change from time to time.
L.A. REPORTING (312) 419-9292
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1
And that leads me to -- actually,
2 I think I'm going to turn to Ms. Williams now about
3 Mr. Yoder --
4
MS. WILLIAMS: Sure
5
MS. TIPSORD: -- who was also the
6 subject of a prehearing conference.
7
MS. WILLIAMS: I think on Friday we
8 discussed the inconvenience to the parties of our
9 expert witness being available only on Monday,
10 Tuesday, and Wednesday of this week, and we were
11 able to reach him on Friday in California, and while
12 the March hearing would be very difficult for him,
13 we have -- he was able to switch his schedule around
14 to make himself available on Wednesday, Thursday,
15 and Friday of this week, which, to us, seemed to
16 accommodate even better, I think, the concerns that
17 were expressed at the prehearing conference on
18 Friday.
19
MS. TIPSORD: Okay. Given that he
20 will be available starting Wednesday, we will
21 discuss tomorrow afternoon where we're at and
22 whether we want to begin first thing Wednesday
23 morning with Mr. Yoder, or where we want to begin,
24 and at that time, we will take any objections or any
L.A. REPORTING (312) 419-9292
8
1 concerns that any of you might have about his
2 limited availability.
3
Okay. Anyone may ask a followup
4 question. You need not wait until your turn to ask
5 the question. For example, as I said off the
6 record, many of you have posed questions concerning
7 economics, and also the Environmental Protection Act
8 language requiring consideration of the existing
9 physical conditions. Please feel free to follow up
10 after the question is initially asked, then when we
11 get to your question, you can note the question was
12 already asked and answered.
13
I do ask that you raise your hand,
14 wait for me to acknowledge you. After I have
15 acknowledged you, please state your name and whom
16 you represent before you begin your question.
17 Please speak one at a time. If you're speaking over
18 each other, the court reporter will not be able to
19 get your questions on the record. Please also note
20 that any question asked by a Board member or staff
21 are intended to help build a complete record for the
22 Board's decision, and not to express any
23 preconceived notion or bias.
24
Also, just a note before I begin,
L.A. REPORTING (312) 419-9292
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1 the Environmental Law and Policy Center, et. al,
2 when you filed your question, you filed along with
3 it a motion to file the pre-filed questions. It's
4 granted, obviously.
5
To the right of the room, I have
6 sign-up sheets for available service lists. If you
7 wish to be on the service list, you will receive all
8 pleadings and all pre-filed testimony in the
9 proceeding, but you must also serve anything you
10 file on the entire service list. Our service list
11 in this, I believe, now is over 50 people. That's a
12 huge service list. So I want you to think about it.
13 Unless you really want your own very own copy, most
14 things are scanned and linked, unless we have
15 computer difficulties with the Board's office,
16 almost immediately, and if it comes in
17 electronically, literally almost immediately.
18
So then in some cases it may be
19 faster for you to go to the Board's web page than it
20 would be for you to wait for it to come to you by
21 U.S. mail. So please think about which list you
22 want to be on. Notice lists gives you copies of all
23 Board orders and all hearing officer orders, and if
24 you have any other questions about which site --
L.A. REPORTING (312) 419-9292
10
1 which service list or notice list to sign up for,
2 please talk to me at a break.
3
At this time, Doctor Girard.
4
MR. GIRARD: Thank you. Good morning.
5 On behalf of the Board, I welcome everything to this
6 rule making to consider changes in the water quality
7 standards and effluent limits for the Chicago Area
8 Water Waste System and the Lower Des Plaines River.
9
The Board appreciates the
10 considerable time and effort already invested in
11 this proceeding by the Illinois EPA, the
12 stakeholders advisory committee, and all the groups
13 that have pre-filed questions. We look forward to
14 the testimony in questions this week that will make
15 a better record for the Board's rule-making process.
16 Thank you, and let's get to work.
17
MS. TIPSORD: Okay. Miss Williams,
18 Miss Diers -- I'm sorry, is it Diers?
19
MS. DIERS: It is Diers. Marie, I
20 just wanted to do a very brief opening statement, if
21 that's okay.
22
MS. TIPSORD: Okay. You need to speak
23 up, though, because the acoustics are really bad in
24 here.
L.A. REPORTING (312) 419-9292
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1
MS. DIERS: Okay. Thank you. My name
2 is Stefanie Diers, and I'm assistant counsel with
3 Illinois EPA. Sitting beside me is Miss Deborah
4 Williams, also counsel with Illinois EPA.
5
First I would like to just give a
6 brief overview of the Agency's proposal. The
7 proposed amendment has three major components. One
8 is the deletion of current use classifications for
9 those waters that are listed in our proposal and
10 replaced with six new used classifications that are
11 intended to more accurately describe the actual
12 aquatic life and recreational expectation within
13 each segment.
14
MS. TIPSORD: Could you speak up,
15 please?
16
MS. DIERS: Yes. Two, replace in its
17 entirety the current secondary content in indigenous
18 aquatic life standards found at 35 Illinois
19 Administrative Code, Subtitle C Chapter 1, Part 302,
20 Subpart D, with new standards that are more
21 reflective of the new classifications proposed by
22 the Agency, and three, the inclusion of the
23 technology-based disinfect requirement for point
24 sources discharging to the segment intended to
L.A. REPORTING (312) 419-9292
12
1 support recreational use.
2
These concepts are requested in
3 the proposed regulatory language that was attached
4 to our Statement of Reasons filed with the Board on
5 October of 2007. On behalf of the Agency, we have
6 four witnesses to present for these hearings, all of
7 which have filed pre-file testimony.
8
Today with us we have Mr. Roy
9 Smoger, who is sitting down at the very end there.
10 Beside him we have Mr. Scott Twait, and on -- beside
11 me is Mr. Rob Sulski.
12
MR. SULSKI: Sulski.
13
MS. DIERS: Sulski. Excuse me,
14 sorry. Mr. Smoger can address questions related to
15 aquatic life use designations and dissolved oxygen.
16 Mr. Sulski can address questions related to the
17 UAA's in general, the studies that were taken in
18 account by the Agency in formulating this proposal,
19 defining the proposed recreational and aquatic life
20 uses, effluent and waterway management controls that
21 would be necessary to achieve the designated use
22 proposed by the Agency, and issues related to
23 technical feasibility and economical reasonableness.
24
Mr. Twait can address questions
L.A. REPORTING (312) 419-9292
13
1 related to the Agency's decision in formulating its
2 proposal to the Board for the set of comprehensive
3 numeric standard necessary to protect the designated
4 aquatic life and recreational uses proposed by the
5 Agency and including the Agency's temperature
6 proposal.
7
Finally, Mr. Yoder, as the hearing
8 officer stated earlier, will be here on Wednesday,
9 and he can address questions related to the report
10 title, temperature criteria options for the Lower
11 Des Plaines river, and the methodology it relies
12 upon in questions also related to the updates made
13 to the fish temperature model that was included with
14 his pre-file testimony.
15
Also joining us to help assist in
16 the panel is Mr. Howard Essig. He's in our Des
17 Plaines regional office, and also behind me is Miss
18 Marcia Willhite, the bureau chief for the Bureau of
19 Water for Illinois EPA.
20
We'd also like to take the time to
21 thank everybody that has been involved in this long
22 process. It's been years coming, and we look
23 forward to the hearings and questions ahead. With
24 that being said, I think we're ready to proceed with
L.A. REPORTING (312) 419-9292
14
1 entering the testimony into the record.
2
MS. TIPSORD: Okay. Before we do
3 that, I did forget one thing. Mr. Phil Taylor is
4 it?
5
MR. TAYLOR: Yes.
6
MS. TIPSORD: Yes -- is here, and he's
7 the reporter with what organization?
8
MR. TAYLOR: The Daily News Tracks.
9
MS. TIPSORD: He would like to know if
10 anyone objects to him taking some photos during the
11 hearing. Is there any objection?
12
MS. WILLIAMS: It's not video, right?
13
MR. ETTINGER: Will I have time to
14 adjust my makeup?
15
MS. TIPSORD: I'm sorry?
16
MR. ETTINGER: Will I have time to
17 adjust my makeup?
18
MS. TIPSORD: Yeah, and Mr. Safley's
19 already indicated he has to take his best side.
20 Please feel free, thank you. All right. Let's go
21 ahead and have the witnesses sworn in.
22
(Witnesses sworn.)
23
MS. TIPSORD: Okay, then. Go ahead
24 with the testimony.
L.A. REPORTING (312) 419-9292
15
1
MS. DIERS: I have -- do you want to
2 do the formal practice of having them identified,
3 or --
4
MS. TIPSORD: No. Let me just ask:
5 There are no changes to his testimony in the
6 testimony that was pre-filed?
7
MS. DIERS: That is correct.
8
MS. TIPSORD: Alisa, can you --
9
MS. DIERS: I don't have Mr. Yoder's,
10 and didn't know if we wanted to do that when he
11 comes, or --
12
MS. TIPSORD: No. Wait until Mr.
13 Yoder's sworn in --
14
MS. DIERS: Okay. That's what I
15 thought. Okay.
16
MS. TIPSORD: -- before we do it. All
17 right. We will enter the pre-file testimony of Rob
18 Sulski, correct?
19
MR. SULSKI: Yes.
20
MS. TIPSORD: As Exhibit
21 No. 1 if there's no objection. Seeing none, it is
22 Exhibit No. 1. The testimony -- pre-file testimony
23 of Scott Twait will be admitted as Exhibit No. 2 if
24 there's no objection. Seeing none, it is Exhibit
L.A. REPORTING (312) 419-9292
16
1 No. 2, and the pre-file testimony of Rob Smoger is
2 admitted as Exhibit No. 3 if there's no objection.
3 Seeing none, it is Exhibit No. 3.
4
With that, if you would like to go
5 ahead.
6
MR. SAFLEY: Thank you, Miss Tipsord.
7 Good morning. My name's Tom Safley. I'm with the
8 law firm of Hodge Dwyer Zeman, and appearing today
9 on behalf of the Illinois Environmental Regulatory
10 Group. Sitting to my right is Monica Rios, also of
11 the law firm of Hodge Dwyer and Zeman on behalf of
12 IERG.
13
We appreciate the opportunity to
14 ask questions of the Agency this morning, and as I
15 think we've mentioned earlier, we'll leave it to the
16 Agency's discretion in the panel its present as to
17 who's the most appropriate person to respond to our
18 questions, and I will skip two or three of our
19 questions that are more specific and ask those later
20 on in the hearing as appropriate, rather than
21 getting to specifics right now.
22
But to proceed into our pre-filed
23 questions, number one: In it's Statement of
24 Reasons, the Agency sites federal requirements,
L.A. REPORTING (312) 419-9292
17
1 which the Agency refers to as UAA factors, in 40
2 C.F.R. Section 131.10 (g) as requirements with which
3 states must comply when developing use designations.
4 That's the statement of record at Page 5. The first
5 factor to be considered is whether naturally
6 occurring concentrations prevent the attainment of
7 the use.
8
Can you please discuss how the
9 Agency considered the pollutant concentrations of
10 the Chicago Area Waterway System, or CAWS, and the
11 Lower Des Plaines River in developing the proposed
12 rule?
13
MR. SULSKI: We considered all the
14 information that's contained in the report as
15 outlined in the Statement of Reasons. I really
16 wanted to -- in reviewing these questions, wanted to
17 put together, perhaps, a map or augment our map
18 which says this factor applies, this factor applies
19 here, and it's two different use designations,
20 several different factors. I didn't have time to do
21 that.
22
Knowing that it's within the
23 record and the Statement of Reasons, you know, I
24 invite you to look at that more thoroughly. If
L.A. REPORTING (312) 419-9292
18
1 somebody is adamant about it, we can certainly do
2 the tech search throughout the documents to get that
3 information to you.
4
MR. SAFLEY: And if I could just
5 follow up real quickly to clarify, Mr. Sulski, when
6 you say, "report," do you mean the Use Attainability
7 Analysis, which were done for each of the --
8
MR. SULSKI: We used both Use
9 Attainability Analysis, yes.
10
MR. SAFLEY: Okay. And then the
11 Statement of Reasons you referred to?
12
MR. SULSKI: Yes.
13
MR. SAFLEY: Are there any other
14 documents that are part of the Agency's filing that
15 people could review on this particular issue?
16
MR. SULSKI: Various -- the various
17 attachments, whether they say this is a UAA factor
18 that was -- that applies in this, I'm not sure. But
19 all of those documents support the entire action.
20 So decisions were made based on those documents,
21 those other documents.
22
MS. TIPSORD: Excuse me. If I may,
23 just for the record, by "the Use Attainability
24 Analysis," you're speaking of its Attachment, or
L.A. REPORTING (312) 419-9292
19
1 Attachments, A and B; correct?
2
MR. SULSKI: Yes.
3
MR. SAFLEY: Thank you. Is there any
4 information that the Agency reviewed that is not
5 contained in the Statement of Reasons or the
6 attachments to the Statement of Reasons?
7
MR. SULSKI: Not with respect to this
8 proposal.
9
MR. SAFLEY: The next question may get
10 to what, Mr. Sulski, you were speaking of with
11 regard to different waterways. The question is:
12 What were the Agency's conclusions regarding the
13 level of naturally occurring pollutant
14 concentrations in the water bodies?
15
MR. SULSKI: Again, I have to give you
16 the same answers as I just did.
17
MR. SAFLEY: Okay.
18
MR. SULSKI: That it's laced through
19 the report, and its reached dependance. So to go
20 through and follow retrieves would be fairly
21 time-consuming, when I believe that we presented it
22 in the reports.
23
MR. SAFLEY: Are any of the Agency's
24 conclusions regarding pollutant concentrations in
L.A. REPORTING (312) 419-9292
20
1 the water bodies not reflected in the Statement of
2 Reasons in the attachments?
3
MR. SULSKI: They are reflected in the
4 Statement of Reasons in the record of the
5 submission.
6
MR. SAFLEY: How did the Agency's
7 conclusions regarding naturally-occurring pollutant
8 concentrations affect or impact the development of
9 the proposed ruling?
10
MR. SULSKI: They were taken into
11 consideration when we had got -- when we proposed
12 our --
13
MR. SAFLEY: Well -- and I guess I'd
14 like to follow up on that. When you say they were
15 taken into consideration, did the Agency consider
16 them and decide that naturally occurring pollutant
17 concentrations was not an issue? Did they decide it
18 was an issue in some water bodies but not others?
19 And, again, I realize that the specifics may be
20 contained in the documents, but can you characterize
21 in --
22
MR. SULSKI: In terms of factor one?
23
MR. SAFLEY: Yes, factor one.
24
MR. SULSKI: Factor one. To my
L.A. REPORTING (312) 419-9292
21
1 knowledge, I don't believe that we relied on factor
2 one in any of the waterways.
3
MR. SAFLEY: So would it, then, be
4 safe to say, or accurate, that as to none of the
5 waterways, the Agency -- the Agency did not conclude
6 as to any of the waterways that naturally occurring
7 pollutant concentrations precluded the attainment of
8 the uses proposed by the Agency?
9
MR. SULSKI: That's correct.
10
MS. TIPSORD: Excuse me. Again, and
11 just to keep the record clear, factor one is factor
12 -- in section 131.10 (g) one of 40 C.F.R.?
13
MR. SULSKI: Yes.
14
MR. SAFLEY: Then I'm going to move on
15 to our question number two. UAA factor two is the
16 consideration of whether natural, ephemeral,
17 intermittent, low flow conditions or water levels
18 prevent the attainment of the use.
19
Can you please discuss how the
20 Agency considered the natural, ephemeral,
21 intermittent, or low flow conditions in water
22 bodies?
23
MR. SULSKI: I have to refer you back
24 to my original answer, that to go reach by reach and
L.A. REPORTING (312) 419-9292
22
1 say which fact -- if this factor applied to this
2 reach and for what designated use category we're
3 talking about would take a long time. And, again, I
4 would've put together a better map if I would've had
5 the time. So it's in the record. It was
6 considered. It's in the record how it was
7 considered and where it applies in the proposal.
8 I'm sorry.
9
MR. SAFLEY: No, that's fine. With
10 regard to this second factor under the UAA factors,
11 is there any information that the Agency considered
12 that is not contained in the proposal in the
13 attachments that were filed?
14
MR. SULSKI: The information is
15 contained in the proposal.
16
MR. SAFLEY: And, Marie, I -- I'm
17 going to withdraw, or get off the subject of my
18 questions here a little bit. What I'm trying to
19 decide is whether I want to ask Mr. Sulski to go
20 through reach by reach and explain these factors,
21 six factors, with all six reaches, or whether we
22 want to do that kind of going forward. The goal of
23 IERG's questions was to get more background
24 information, and obviously that information is --
L.A. REPORTING (312) 419-9292
23
1 there is information, at least, on some of these
2 factors that's contained in the record, but the
3 point was to get some conversation about that.
4
So I realize I can ask any
5 questions I want, and I don't know if you have any
6 thoughts on that, but the response that it will take
7 a long time, may very well be true, but...
8
MS. WILLIAMS: Do you think it would
9 be best afterwards to ask which ones did we rely on?
10
MR. SAFLEY: Well, I want to go
11 through and make sure that some of it is clear on
12 the record what was relied on. I know that with our
13 factors it's not entirely clear. Let me -- let me
14 make it through factor two, and if it turns out that
15 was not an issue at all as of factor one, maybe I
16 won't worry about that.
17
With regard to factor -- UAA
18 factor two, which, again, is the natural, ephemeral,
19 intermittent, or low flow conditions or water levels
20 present -- whether those conditions prevent the
21 attainment of the use as to any of the water bodies
22 or waterways that are the subject of this
23 rulemaking, does the Agency conclude that factor two
24 did prevent attainment to the use proposal?
L.A. REPORTING (312) 419-9292
24
1
MR. SULSKI: Yes, we did.
2
MR. SAFLEY: Okay. And can you tell
3 me which water bodies those were?
4
MR. SULSKI: It pertained primarily to
5 recreation. This is a flow based -- in general,
6 it's a flow factor. So it pertained primarily to
7 recreation and safety issues. For example --
8
MR. SAFLEY: And was that for all the
9 water bodies, or just some of them?
10
MR. SULSKI: No, that was for the
11 non-recreation.
12
MR. SAFLEY: So for any of the water
13 bodies that the Agency has proposed as
14 non-recreational?
15
MR. SULSKI: That's correct.
16
MR. SAFLEY: Okay. And the other two
17 categories of recreational use, this -- the Agency
18 concluded that for those water bodies, this --
19 factor two was not an issue. Would that be correct?
20
MR. SULSKI: Not to my knowledge.
21
MR. SAFLEY: Okay. And you said
22 "primarily as to recreation." Did the Agency find
23 that factor two was an issue with use designations?
24
MR. SULSKI: We found that it was an
L.A. REPORTING (312) 419-9292
25
1 added condition, but not a primary. An added
2 factor, but not a primary factor. So it went in
3 concert with primarily the third and fourth factors.
4
MR. SAFLEY: Are any of the Agency's
5 conclusions regarding factor two of the UAA factors
6 not included within the record that the Agency has
7 filed with before?
8
MR. SULSKI: They are included in the
9 record.
10
MR. SAFLEY: UAA factor three is the
11 consideration of whether human caused conditions or
12 sources of pollution prevent the attainment of the
13 use and cannot be remedied or would cause more
14 environmental damage to correct than to leave in
15 place.
16
Can you discuss how the Agency
17 considers human cause conditions or sources of
18 pollution, and whether such conditions or pollution
19 sources cannot be remedied or would cause more
20 environmental damage to correct and to leave into
21 place -- leave in place.
22
MS. TIPSORD: And excuse me,
23 Mr. Sulski. That's question number three.
24
MR. SAFLEY: I apologize, thank you.
L.A. REPORTING (312) 419-9292
26
1
MR. SULSKI: Question number three in
2 factor three?
3
MR. SAFLEY: Yes.
4
MR. SULSKI: Factor three was
5 considered and applied in some of the reaches. I
6 can't tell you exactly which reaches and where at
7 this point without going through the report, but it
8 was applied.
9
MR. SAFLEY: Okay. Did the Agency
10 conclude that factor three precluded any of these
11 waterways from reaching the uses proposed?
12
MR. SULSKI: Yes, we did.
13
MR. SAFLEY: Okay. Can you tell me
14 which reaches or which waterways those were?
15
MR. ETTINGER: Excuse me. I don't
16 believe the witness heard that question properly.
17
MS. WILLIAMS: Yeah. Can you repeat
18 the question?
19
MR. SAFLEY: Yes. Did -- and I think
20 I know which question you're asking me to repeat.
21 Did the Agency conclude that factor three of the UAA
22 factors precluded any of the waterways from being
23 able to reach the uses proposed?
24
MR. SULSKI: Yes. Oh, the uses
L.A. REPORTING (312) 419-9292
27
1 proposed?
2
MR. SAFLEY: Or --
3
MS. FRANZETTI: -- The Clean Water
4 Act?
5
MR. SAFLEY: -- The Clean Water Act.
6 I misspoke. The full use under the Clean Water Act.
7 Let me rephrase it that way.
8
MR. SULSKI: Yes.
9
MR. SAFLEY: Okay. And my next
10 question was: Did -- can you tell me which
11 waterways those are sitting here right now?
12
MR. SULSKI: It varied between
13 recreation and aquatic life, and I would have to go
14 through the reports and point it out, and it's very
15 clearly stated in those reports and the supporting
16 attachments to the proposal.
17
MS. TIPSORD: And again, just for
18 my -- we're using words like "reports" and stuff,
19 and again, you're talking about Exhibits A and B to
20 the Statement of Reasons?
21
MR. SULSKI: Yes.
22
MS. TIPSORD: Okay.
23
MR. SAFLEY: And is there any --
24
MS. WILLIAMS: Attachments. Can we --
L.A. REPORTING (312) 419-9292
28
1 we did try to say attachments --
2
MS. TIPSORD: Yes.
3
MS. WILLIAMS: -- so that we
4 wouldn't --
5
MS. TIPSORD: I'm sorry.
6
MS. WILLIAMS: -- confuse on the
7 record --
8
MS. TIPSORD: Attachments.
9
MS. WILLIAMS: -- that ours are
10 attachments, whereas today we're doing the exhibits.
11
MS. TIPSORD: That's correct. Thank
12 you for the correction.
13
MR. SAFLEY: Mr. Sulski, is there any
14 information that the Agency reviewed on factor three
15 that is not contained in the Agency's rulemaking
16 proposal?
17
MR. SULSKI: Not that I'm aware of.
18
MR. SAFLEY: Now, the -- factor three
19 has several parts to it, so I'd like to break it
20 down a little bit, and this is the next question
21 within my group, or IERG's group, of questions
22 labeled three at the bottom of Page 2 of our
23 pre-filed of questions.
24
Did the Agency determine that any
L.A. REPORTING (312) 419-9292
29
1 human caused conditions and sources of pollution
2 impacting these water bodies cannot be remedied --
3 remedied, I guess, is what I said.
4
MR. SULSKI: Yes.
5
MR. SAFLEY: Okay. As to which
6 conditions or sources of pollution did the Agency
7 make that determination?
8
MR. SULSKI: Primarily with respect to
9 downtown areas and areas that have straight-walled
10 channels that have involvement on them. It was
11 concluded that it would be almost impossible and
12 cause great environmental damage to remove buildings
13 and plants, and in order to rip back slopes or
14 whatever to create aquatic habitat.
15
MR. SAFLEY: Okay. Was --
16
MR. TWAIT: In addition to that, the
17 other factor that was used was the removal of
18 sediment.
19
MR. SAFLEY: Okay. And how was
20 sediment an issue with regard to UAA factor three?
21
MR. TWAIT: Contained in our Statement
22 of Reasons, we used -- we used this UAA factor to
23 determine that cadmium could not be met in the
24 waterways, and that was primarily due to sediment.
L.A. REPORTING (312) 419-9292
30
1
MR. SAFLEY: Okay. And, Mr. Sulski,
2 you mentioned the issue of the straight-walled
3 channels in aquatic life. Did those same concerns
4 affect the Agency's decisions regarding recreational
5 uses of those waterways?
6
MR. SULSKI: Not that I'm aware of.
7
MR. SAFLEY: Did the Agency --
8
MR. SULSKI: Except for --
9
MR. SAFLEY: Go ahead. Sure.
10
MR. SULSKI: Except for access.
11
MR. SAFLEY: Okay.
12
MR. SULSKI: That was an issue.
13
MR. SAFLEY: Okay. Did the Agency
14 determine that any human caused conditions and
15 sources of pollution would cause more environmental
16 damage to correct than to leave in place?
17
MR. SULSKI: We didn't make that
18 determination.
19
MR. SAFLEY: When you say you didn't
20 make that determination, do you mean you looked at
21 that but did not come to that conclusion, or the
22 Agency did not consider that as an issue?
23
MR. SULSKI: In the Lower Des Plaines,
24 there was -- the Lower Des Plaines in the UAA
L.A. REPORTING (312) 419-9292
31
1 report, there was -- they looked at that issue and
2 they couldn't come up with a conclusion on that.
3 There wasn't -- I can't remember the exact train of
4 reasoning in the lower, but in the upper -- or in
5 the CAWS area, it wasn't -- we weren't able to look
6 at it very well because of the limited amount of
7 sediment data that we had.
8
MS. WILLIAMS: Do we want to say for
9 the record that when we say CAWS, we mean Chicago
10 Area Waterways System?
11
MS. TIPSORD: So it's actually an
12 acronym, and not c-a-u-s-e?
13
MR. SULSKI: Correct.
14
MR. SAFLEY: Did the Agency consider
15 that issue with regard to the straight-walled
16 channels that you mentioned earlier?
17
MR. SULSKI: Yes.
18
MR. SAFLEY: And what was the Agency's
19 conclusion?
20
MR. SULSKI: That it was next to
21 impossible to rip out buildings and restore meanders
22 through the city streets to establish aquatic
23 habitat.
24
MR. SAFLEY: Are any of the Agency's
L.A. REPORTING (312) 419-9292
32
1 conclusions regarding these issues of fact not
2 reflected in the Agency's rule making proposal?
3
MR. SULSKI: They're all reflected in
4 the rule making.
5
MR. SAFLEY: UAA factor four is the
6 consideration of whether dams, diversions, or other
7 types of hydrologic modifications preclude the
8 attainment of the use, and it is not feasible to
9 restore the water body to its original condition or
10 to operate such modification in the way that would
11 result in the attainment of the use.
12
Can you please discuss how the
13 Agency considered whether dams, diversions, or other
14 types of hydrologic modifications to the water
15 bodies preclude attainment -- and this question
16 says, "of the use as proposed in the rule." It
17 maybe should have said "preclude attainment of the
18 full use under the Clean Water Act."
19
MR. SULSKI: The discussions of,
20 especially this factor, are replete through the
21 reports through the Statement of Reasons. You know,
22 it's a similar -- similar as the factors we've just
23 talked about. I mean, the information is there
24 where we relied for what reach and for what reason.
L.A. REPORTING (312) 419-9292
33
1
So, again, I would invite you to
2 look at those reports more carefully. I think that
3 if you did a tech search on factor, or factors, you
4 would pinpoint it.
5
MR. SAFLEY: And you -- you discussed
6 a little bit earlier the issue of the impossibility
7 of restoring some of the meanders in the city and
8 things like that. The next question I have here in
9 my -- in the pre-file questions is: Can you discuss
10 how the Agency considered whether it is feasible to
11 restore the water bodies to their original
12 condition?
13
Could you expand a little bit, go
14 more broadly, than just the issue of the waterways
15 and downtown and talk in general about that issue?
16
MR. SULSKI: Well, the original
17 condition was, you know, intermittent prairie
18 streams running into Lake Michigan, and you see what
19 we have now. So that seems like an obvious.
20
MR. SAFLEY: And I don't mean to ask
21 obvious questions, and I -- I mean, just to be
22 clear, I have read the documents. I understand that
23 some of these things are in here. The point of the
24 questions is to try to foster some discussion on the
L.A. REPORTING (312) 419-9292
34
1 issues, and that's why I'm not asking you -- you
2 know, I'm not asking you to turn -- you know, tell
3 you to find a page on which the Chicago Sanitary
4 Ship Canal was discussed with regard to factor two.
5 You know, I don't want to make us go through that
6 tedium. But if you can bear with me, I'm just
7 trying to ask some general questions to make sure
8 that we're all on the same page and we know the full
9 extent of the information that the Agency considered
10 and what the Agency's's conclusions were. I'm sure
11 that I, and other people, will get more specific on
12 specific portions of the Statement of Reasons or the
13 exhibits to that.
14
Then, just to finish out that
15 question, and to make sure that the record is clear,
16 would it be accurate to state that the Agency
17 concluded it is not feasible to restore the cause of
18 the Lower Des Plaines River that are subject to this
19 -- subject to this rulemaking to their original
20 state or original condition, I think, is the term
21 that's used.
22
MR. SULSKI: Their original condition,
23 yes.
24
MR. SAFLEY: Okay. Next question here
L.A. REPORTING (312) 419-9292
35
1 is: Can you discuss how the Agency considered
2 whether it is feasible to operate the modifications
3 to these water bodies in a way that would result in
4 the attainment of the proposed uses of the water
5 bodies?
6
MR. SULSKI: The system is operated in
7 a particular way that includes locks and control
8 structures, and they were all constructed for
9 primarily navigation of flood control purposes.
10 They continue to serve that as one of their
11 functions. They're operated pretty much the same as
12 they've always been operated, with some minor
13 adjustments here and there. So the metropolitan
14 area relies on that operation to remain safe.
15
MR. SAFLEY: Is it the Agency's
16 conclusion that that operation that you just
17 discussed with regard to locks and other issues can
18 continue as it has been currently, and the proposed
19 used in this rule can be attained with that
20 continued operation?
21
MR. SULSKI: That's correct.
22
MR. SAFLEY: Is it -- with regard to
23 factor four, is there any information that the
24 Agency considered that is not contained in the
L.A. REPORTING (312) 419-9292
36
1 Agency's rulemaking proposal?
2
MR. SULSKI: It's contained in the
3 rulemaking proposal.
4
MR. SAFLEY: And are there any
5 conclusions of the Agency with regard to factor four
6 that are not contained in the Agency's rulemaking
7 proposal?
8
MR. SULSKI: They're contained in the
9 proposal.
10
MR. SAFLEY: UAA factor five -- and
11 this is question five. UAA factor five is the
12 consideration of whether physical conditions related
13 natural features of the water body, such as the lack
14 of a proper substrate, cover, flow, depth, pools,
15 riffles, and the like, unrelated to water quality,
16 preclude attainment of the use.
17
Can you discuss how the Agency
18 considered these characteristics and the features of
19 the CAWS and Lower Des Plaines River in developing
20 the proposed rule?
21
MR. SULSKI: That information is
22 voluminous, and it's contained in the UAA reports
23 and the attachments that went along with that.
24
MR. SAFLEY: Did the Agency make a
L.A. REPORTING (312) 419-9292
37
1 determination that UAA factor five precluded the
2 ability of some or all of these waterways to
3 preclude their ability to reach full use under the
4 Clean Water Act?
5
MS. WILLIAMS: I would -- I would like
6 to interrupt here for a second, because I think in
7 this question there's a misquote --
8
MR. SAFLEY: Okay.
9
MS. WILLIAMS: -- of our Statement of
10 Reasons on Page 6. When he quotes in the first
11 sentence, "the UAA factor -- "
12
MS. TIPSORD: Mm-hmm.
13
MS. WILLIAMS: I believe there's a
14 misquote here. Okay. At the -- it quotes "the
15 factor -- physical conditions related to natural
16 features of the water body, such
17 as --" and then is says, "preclude --" at the end,
18 "preclude attainment of the use in between -- "
19
MR. SAFLEY: Oh, I apologize.
20
MS. WILLIAMS: It should be "the use."
21 The actual regulation says --
22
MR. SAFLEY: Yes.
23
MS. WILLIAMS: "-- attainment of
24 aquatic life --"
L.A. REPORTING (312) 419-9292
38
1
MR. SAFLEY: Protection uses.
2
MS. WILLIAMS: "-- protection uses."
3
MR. SAFLEY: Yes. I apologize. Thank
4 you. That's a typographical error. Then let me
5 repeat the question with the proper language. Thank
6 you.
7
Did the Agency conclude that any
8 of the physical conditions related to the natural
9 features of the water body as listed in UAA factor
10 five precluded attainment of aquatic life protection
11 uses in these waterways?
12
MR. SULSKI: In some, yes. In some,
13 no.
14
MR. SAFLEY: And is -- as to the --
15 the determination of -- by the Agency of which yes
16 and which no, is that fully reflected in the
17 Agency's rulemaking proposal?
18
MR. SULSKI: Yes, it sure is.
19
MR. SAFLEY: And I don't think that
20 I've asked this question as to UAA factor five. Is
21 there any information that the Agency considered on
22 these physical conditions under UAA factor five that
23 is not included in the Agency's rulemaking proposal?
24
MR. SULSKI: We did not -- neither the
L.A. REPORTING (312) 419-9292
39
1 consultants nor us delved deeply into this -- oh,
2 we're still on five. I'm so sorry.
3
MR. SAFLEY: No, no, no, no. That's
4 fine.
5
MR. SULSKI: Can you repeat it,
6 please?
7
MR. SAFLEY: Sure, sure. Is there any
8 information that the Agency considered with regard
9 to UAA factor five that is not included in the
10 Agency's rulemaking proposal?
11
MR. SULSKI: No. It's all included in
12 the rulemaking.
13
MR. SAFLEY: Okay. Now, moving to
14 question number six. UAA factor six is the
15 consideration of whether controls more stringent
16 than those required by Sections 301 (b) and 306 of
17 the act, and it's here parenthesis "(CWA effluent
18 standards)" closed parenthesis, would result in
19 widespread economic and social impact.
20
Can you discuss how the Agency
21 considered the economic and social impact of its
22 proposed rule?
23
MR. SMOGOR: I think it's important,
24 and perhaps helpful, to point out that going through
L.A. REPORTING (312) 419-9292
40
1 every six of the UAA factors is not actually
2 required, even though the word "requirement" was
3 used at the beginning of this line of questioning.
4 I think it's helpful to point out that these are not
5 required.
6
So if you find at least one factor
7 that applies, you have adequate information, or
8 sufficient information, to me, suggesting a lower
9 than Clean Water Act goal for that use. So, okay.
10 Yeah. Actually, sorry. If you're -- if you're
11 asked how -- if we can discuss how the Agency
12 considered economic and social impact of its
13 proposed rules, we did not consider that as much as
14 the other factors.
15
MR. SULSKI: I should say we did -- I
16 shouldn't -- we shouldn't say that we didn't
17 consider at all, but we only considered it in a few
18 cases and in the very general framework.
19 Specifically, we looked at whether it would be
20 pursuant to treat every CSO prior to the completion
21 of TARP. That was something we looked at the
22 economics of.
23
The other things were quite
24 obvious, like ripping down whole city blocks and
L.A. REPORTING (312) 419-9292
41
1 that sort of thing. Those are economic
2 considerations that are straightforward, and you
3 don't need to add up in pennies and dimes and
4 dollars.
5
MR. SAFLEY: And --
6
MR. SULSKI: So that's -- you know,
7 while it was considered, we didn't go through a
8 formal economic analysis.
9
MR. SAFLEY: And, Mr. Sulski, just to
10 clarify for the record for the court reporter, by
11 "CSO" you mean combined sewer overflow?
12
MR. SULSKI: Yes.
13
MR. SAFLEY: The Agency states in its
14 Statement of Reasons that it relies on USEPA
15 guidance, which it attaches as Appendix M when
16 considering factor six. Although the Agency
17 references Appendix M, it does not provide details
18 on or whether it relied on Appendix M when
19 evaluating factor six.
20
Did the Agency rely on Appendix M
21 to its Statement of Reasons to determine the social
22 and economic impact of the proposed rule?
23
MS. WILLIAMS: I think I'm going to
24 take this one. I have to be sworn in, I'm assuming.
L.A. REPORTING (312) 419-9292
42
1
MS. TIPSORD: Swear in Miss Williams.
2
(Witness sworn.)
3
MS. WILLIAMS: With regard to
4 Attachment C to our Statement of Reasons, the Agency
5 provided for reference of the Board and all the
6 participants in the rulemaking the framework that
7 USEPA has provided for an analysis under facts which
8 have a widespread socioeconomic impact.
9
The Agency, I believe, made clear
10 for many years to the stakeholders that we felt we
11 did not have the information to undergo that
12 analysis, and where industry felt that that was a
13 necessary or appropriate undertaking that they would
14 need to present that information either to the
15 Agency during the stakeholder process, or even
16 possibly to the Board during this process. So
17 that's why we provided that information in the
18 record, but we did not rely on it in our --
19
MR. SAFLEY: Okay. I'd like to follow
20 up, Ms. Williams, on that answer just a little bit.
21 Does the Agency consider the economic and social
22 impact UAA factor only to be something that's
23 considered with regard to industry?
24
MS. WILLIAMS: Oh, no. Not -- by
L.A. REPORTING (312) 419-9292
43
1 "industry," you mean industrial discharges versus
2 municipal discharges, no.
3
MR. SAFLEY: Well --
4
MS. WILLIAMS: If it would apply to
5 any discharges -- are you asking if --
6
MR. SAFLEY: Well, you used the word
7 "industries." That's why I was trying to --
8
MS. WILLIAMS: Yeah, sorry.
9
MR. SAFLEY: -- make sure I
10 understood.
11
MS. WILLIAMS: Discharges.
12
MR. SAFLEY: Okay. Does the Agency
13 consider widespread, economic, and social impact
14 only to be an issue that's only looked at with
15 regard to discharges?
16
MS. WILLIAMS: I can't answer that.
17 We have never done an analysis under this
18 regulation.
19
MR. SAFLEY: Okay.
20
MS. WILLIAMS: So I don't think I can
21 answer more specifically than I just did.
22
MR. SAFLEY: Would the economic and
23 social impact to the community at large or the
24 Chicago area be something that the Agency feels
L.A. REPORTING (312) 419-9292
44
1 should be considered with regard to this rulemaking?
2
MS. WILLIAMS: It's my understanding
3 that widespread socioeconomic impact, as that term
4 is used in this language, is very broad.
5
MS. TIPSORD: That's the Code of
6 Federal Regulations?
7
MS. WILLIAMS: Yes. I'm sorry. Under
8 the Code of Federal Regulations. It's my
9 understanding that the term is very broad, but I
10 don't -- I can't answer any more than that.
11
Now -- and I probably should stop,
12 but that is not to be confused by the technical
13 feasibility and economic reasonableness, which we
14 did consider and put in the process.
15
MR. SAFLEY: And if I wasn't clear, my
16 question right now is only as to UAA factor six and
17 whether it controls more stringent than those
18 required would result in widespread, economic, and
19 social impact.
20
Mr. Sulski, you mentioned some of
21 the few things that the Agency did consider on that
22 UAA factor six. Is any information that the Agency
23 considered not included in the record that the
24 Agency has filed with the Board?
L.A. REPORTING (312) 419-9292
45
1
MR. SULSKI: No. There may be some
2 discussions that were in some of the stakeholder
3 meetings when those subjects came up, but in general
4 they were translated into some portion of the
5 proposal.
6
MR. SAFLEY: Are any of the Agency's
7 conclusions on UAA factor six not reflected in the
8 Agency's rulemaking proposal?
9
MR. SULSKI: No.
10
MR. SAFLEY: I'm going to wait on our
11 question seven, it's more specific, and move on to
12 our question eight. Our question eight is pursuant
13 to the --
14
MS. TIPSORD: Excuse me. Before you
15 do that, we do have a followup question --
16
MR. SAFLEY: Oh, all right.
17
MS. TIPSORD: If that's all right.
18
MS. LIU: Good morning, Mr. Sulski. I
19 do have a followup question. Earlier you mentioned
20 that you were planning to put together a map maybe
21 showing some of these factors in the regions where
22 they apply, but you just didn't have time?
23
MR. SULSKI: Correct.
24
MS. LIU: Would that be something
L.A. REPORTING (312) 419-9292
46
1 you'd still be willing to do?
2
MR. SULSKI: Yup. Sure.
3
MS. LIU: Terrific. Thank you.
4
MR. SULSKI: We can modify this map
5 that we have here.
6
MS. TIPSORD: And for the record, he's
7 speaking about an enlargement of the map that is
8 included in the Statement of Reasons.
9
MS. WILLIAMS: Attachment I.
10
MS. TIPSORD: Attachment I, I believe
11 is correct. Yes. Mr. Safley, go ahead. I'm sorry,
12 Mr. Ettinger.
13
MR. ETTINGER: I have a question. I
14 guess it's probably for Ms. Williams.
15
MS. TIPSORD: You need to identify
16 yourself for the record.
17
MR. ETTINGER: I'm sorry. I'm Albert
18 Ettinger. I'll give you a card later. And my
19 question, I believe, is to Miss Williams, although
20 anyone could answer it here. Did the Agency also
21 consider the water quality standards handbook that
22 USEPA published in formulating its proposal?
23
MR. TWAIT: Yes.
24
MR. ETTINGER: Thank you.
L.A. REPORTING (312) 419-9292
47
1
MS. TIPSORD: Mr. Safley, if you'd
2 like to go ahead.
3
MR. SAFLEY: Yes, ma'am. Moving on to
4 our question eight: Pursuant to current
5 regulations, if a receiving water does not meet the
6 water quality standards that apply to it, no mixing
7 zone is allowed for discharger to the water, see 35
8 Illinois Administrative Code Section 302.102 (b)
9 (9).
10
Does the Agency agree that as
11 such, dischargers will not be allowed a mixing zone
12 to aid and comply within many of the proposed
13 standards?
14
MR. TWAIT: The waterway is currently
15 meeting most of the proposed water quality
16 standards. There are only a few that do not.
17
MR. SAFLEY: Okay. As to those that
18 it's not currently meeting, does the Agency agree
19 that as to those, dischargers will not be allowed a
20 mixing zone to aid and compliance?
21
MR. TWAIT: Yes.
22
MR. SAFLEY: What is the Agency's
23 basis for proposing standards that preclude the use
24 of mixing zones?
L.A. REPORTING (312) 419-9292
48
1
MR. TWAIT: The basis is the
2 protection of aquatic life.
3
MR. SAFLEY: As to those factors --
4 I'm sorry. I'm moving on to question nine. Well,
5 let me just ask as it's written. Is it the Agency's
6 intent with this proposal to require facilities to
7 comply with the proposed water quality standards at
8 the quote "end of the pipe" closed quote?
9
MR. TWAIT: No. In most cases, a
10 mixing zone will be available.
11
MR. SAFLEY: Okay. As to those --
12 well, as to those parameters or mixing that will not
13 be available, what are the economic and
14 technological implications of requiring compliance
15 at the end of the pipe?
16
MS. WILLIAMS: I think, personally,
17 this is starting to get into standard setting until
18 we know what standards we're talking about.
19
MR. SAFLEY: That -- I'm -- that's
20 fine. I'm making an -- I'm making a determination
21 on the fly here as to which ones are more available
22 and which ones aren't. So I'm more than happy to
23 put that off.
24
Next question is ten. What period
L.A. REPORTING (312) 419-9292
49
1 of time will affected facilities be given to begin
2 compliance with the proposed rules once they are
3 adopted and become effective?
4
MR. TWAIT: A compliance period would
5 be put into the NPDS permit, and the max would be
6 three years. That's unless the dischargers suggest
7 to the Board a different compliance period and the
8 Board accepts.
9
MR. SAFLEY: To follow up on that
10 response, Mr. Twait, would the Agency intend to
11 immediately, upon promulgation that's ruled, reopen
12 every -- the NPDS permit of each discharger to these
13 water bodies in order to put the compliance periods
14 in?
15
MR. TWAIT: On past history, I would
16 say no, the Agency would not open up every NPDS
17 permit on the waterway.
18
MR. SAFLEY: How, then, would the
19 Agency insert the compliance periods into the NPDS
20 permits?
21
MR. TWAIT: The Agency usually waits
22 until the permit is either modified or renewed.
23
MR. SAFLEY: So until that happens,
24 unless the Board, in promulgating the rule, includes
L.A. REPORTING (312) 419-9292
50
1 a compliance period in the rule, would immediate
2 compliance be required until a discharger's NPDS
3 permit came up for renewal and at that point, a
4 compliance period would be issued?
5
MR. TWAIT: Could you restate that
6 question?
7
MR. SAFLEY: Sure, sure. If a
8 discharge of an NPDS permit is not up for renewal
9 until two years after the rule becomes effective,
10 and the rule becomes effective and the Agency's
11 going to wait that two years to include a compliance
12 period in their NPDS permit, would the discharger be
13 required to comply with the rules in between the
14 time that the rule's promulgated and their permit
15 comes up for renewal?
16
MR. TWAIT: I believe what you're
17 asking is if the Board puts a deadline for meeting
18 the regulation, whether that would apply or not.
19
MR. SAFLEY: Or if the Board includes
20 no deadline or the deadline is immediate.
21
MS. WILLIAMS: Can we clarify? Are we
22 talking about numeric standard, are we talking about
23 the use designation, are we talking about effluent
24 requirements? I think the answer may be different
L.A. REPORTING (312) 419-9292
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1 depending on what piece of the proposal we're
2 talking about.
3
MR. SAFLEY: Well, let's stick now,
4 since we're talking about NPDS permits, include
5 anything that would be included with an NPDS permit.
6
MS. WILLIAMS: So an effluent
7 standard? Okay.
8
MR. SAFLEY: If the compliance
9 deadline set by the Board is before an NPDS permit
10 comes up for renewal, what standards would apply to
11 the discharge in between the compliance deadline and
12 when the NPDS permit is modified?
13
MR. TWAIT: I'm not quite sure I know
14 the answer to that.
15
MR. SAFLEY: Okay.
16
MR. RAO: May I make a followup?
17
MR. SAFLEY: Of course.
18
MR. RAO: Mr. Twait, you mentioned
19 there'd be a three-year phase in the period to --
20 compliance period that would be put in the NPDS
21 permit?
22
MR. TWAIT: There's a three-year
23 compliance period that could be put in to the NPDS
24 permit.
L.A. REPORTING (312) 419-9292
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1
MR. RAO: Could be. Now, on what
2 basis did the Agency come up with the time period?
3
MR. TWAIT: Three years is the maximum
4 allowed by federal law.
5
MR. RAO: Okay. Thanks.
6
MS. TIPSORD: Mr. Ettinger?
7
MR. ETTINGER: Let me just get clear
8 here. If the standard is -- standards change are
9 approved and people have permits that are in effect,
10 they will be expected to comply with those permits
11 during the period until their permit is modified or
12 changed or renewed?
13
MR. TWAIT: Correct, unless the Board
14 puts a drop-dead date in the permit rules.
15
MR. ETTINGER: Is the Agency
16 requesting the Board to put a drop-dead date in the
17 rules that's prior that would interfere with the
18 companies being allowed to use the full term of
19 their current permits?
20
MR. TWAIT: In one instance, yes, and
21 that would be MWRD's disinfection.
22
MR. ETTINGER: Thank you.
23
MR. SAFLEY: Moving on to our
24 pre-filed question number 11: How does the Agency
L.A. REPORTING (312) 419-9292
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1 determine if a proposed rule is economically
2 reasonable?
3
MS. WILLIAMS: I guess at this point I
4 would object because this is a determination the
5 Board makes, not the Agency.
6
MS. TIPSORD: Want to rephrase the
7 question, Mr. Safley?
8
MR. SAFLEY: Sure. Does the Agency
9 consider when it files a proposed rule with the
10 Board whether it's economically reasonable for
11 parties to comply with that rule?
12
MR. SULSKI: The Agency didn't do an
13 economic analysis of this rule change. Only, as I
14 spoke before, in general terms with the stakeholder
15 groups. We invited those that would be affected by
16 this rule to present information to the Board and to
17 us if it could get done prior to our proposal.
18
MS. TIPSORD: Do you believe this rule
19 is economically reasonable?
20
MR. TWAIT: Well, I'd like to add to
21 that. We've got no formal methodology as to doing
22 an economic analysis. We've provided the Board any
23 economic data we had for -- the Agency really
24 provides the economic analysis when there's a new
L.A. REPORTING (312) 419-9292
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1 technology out, and in this case, we're not
2 proposing any new technologies for any of the -- to
3 meet water quality standards.
4
MS. TIPSORD: I'd like to follow up on
5 that a little bit. It is the Board's determination.
6 I would agree with Ms. Williams. The Board makes
7 the determination it has to pursuant to Section 27
8 of the act. However, you are the proponent, and my
9 question is: Does the proponent believe the Board's
10 economic rule reasonable as proposed?
11
MR. TWAIT: Yes.
12
MS. TIPSORD: Thank you.
13 Mr. Ettinger?
14
MS. FRANZETTI: Can I -- do you mind?
15
MR. ETTINGER: No.
16
MS. TIPSORD: Identify yourself,
17 please.
18
MS. FRANZETTI: Susan Franzetti,
19 counsel for Midwest Generation. If the Agency did
20 not do an economic analysis of the impact of the
21 proposed rules other than on the limited basis,
22 Scott, that you just described, then how can the
23 Agency know what the economic impact is going to be
24 of these proposed rules?
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: I made that statement
2 based on the fact that disinfection, as one example,
3 is required throughout the state. Another one would
4 be that cooling towers are used extensively
5 throughout the state to meet water quality
6 standards.
7
MS. FRANZETTI: And, if I may, one
8 more. So based on the fact that disinfection exists
9 at other facilities outside of the UAA area, based
10 on the fact that cooling towers exist outside of the
11 UAA area, that's the basis, that's the rationale,
12 for the Agency's determination on the economic
13 impact of its proposed rule. Did I understand you
14 correctly?
15
MR. TWAIT: Yes.
16
MS. TIPSORD: Mr. Ettinger.
17
MR. ETTINGER: About how long was this
18 stakeholder process on this proposal?
19
MR. TWAIT: I would say approximately
20 seven years.
21
MR. ETTINGER: During that seven
22 years, was industry, the Water Reclamation District,
23 and other businesses in the state invited to
24 participate in that stakeholder process?
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: Yes.
2
MR. ETTINGER: Did any industry or
3 business tell you that they would be put out of
4 business if the water quality standards were changed
5 here?
6
MR. TWAIT: I don't believe so.
7
MR. ETTINGER: Did any industry or
8 business give you any information as to the economic
9 cost of upgrading these standards in the ways that
10 were discussed?
11
MR. TWAIT: Yes.
12
MR. ETTINGER: And who was that?
13
MR. TWAIT: The District and
14 Midwest --
15
MR. SULSKI: MWRDGC.
16
MS. WILLIAMS: By "the District" you
17 mean --
18
MR. TWAIT: MWRDGC.
19
MS. TIPSORD: Metropolitan Water
20 Reclamation District of Chicago.
21
MR. TWAIT: I'm sorry.
22
MS. TIPSORD: Of Greater Chicago.
23 Sorry.
24
MR. TWAIT: And I believe Midwest
L.A. REPORTING (312) 419-9292
57
1 Generation also provided some data.
2
MR. ETTINGER: Did Midwest Generation
3 ever give you any sort of study that actually said
4 what would be necessary to reach various temperature
5 standards?
6
MR. SULSKI: No.
7
MR. TWAIT: I don't believe so.
8
MR. ETTINGER: Thank you.
9
MS. TIPSORD: Mr. Andes, please
10 identify yourself.
11
MR. ANDES: Sure. Fred Andes. I'm
12 counsel for the MWRDGC. To follow up on that, the
13 district submitted substantial documentation on the
14 costs of compliance with disinfection. Am I right?
15
MR. SULSKI: Yes.
16
MR. ANDES: And the costs involved
17 more than hundreds of millions of dollars?
18
MR. SULSKI: Yes.
19
MR. ANDES: And did the Agency make a
20 determination of whether those costs were
21 economically reasonable?
22
MR. SULSKI: We didn't do a thorough
23 analysis on that.
24
MR. ANDES: Did you do any analysis on
L.A. REPORTING (312) 419-9292
58
1 that?
2
MR. SULSKI: We looked at the figures.
3
MR. ANDES: Yes or no.
4
MR. SULSKI: No.
5
MR. ANDES: Thank you.
6
MS. TIPSORD: Actually, let's start
7 behind him.
8
MS. ALEXANDER: Ann Alexander with the
9 Natural Resource Defense Counsel. Did you at any
10 point in the course of the stakeholder process ever
11 discuss with the Water Reclamation District the
12 requirements and components of a factor six
13 determination and ask whether they had information
14 in regard to present concern in factor six?
15
MR. SULSKI: Yes.
16
MS. ALEXANDER: And what was the
17 response?
18
MR. SULSKI: The response was that the
19 way that they were structured, it was not -- it was
20 not an appropriate means for them to determine
21 factor six.
22
MS. TIPSORD: And for the record --
23 excuse me, Ms. Alexander. For the record, now, when
24 you're talking about factor six, you're back to the
L.A. REPORTING (312) 419-9292
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1 UAA --
2
MS. ALEXANDER: Yes, that is correct.
3
MS. TIPSORD: -- which is different
4 than what we're talking about?
5
MS. ALEXANDER: That is correct.
6
MR. SULSKI: And that, specifically --
7 can I follow up? That specifically refers to the
8 attachment that we put in the record regarding Clean
9 Water Act guidance on performing an analysis that
10 would be Attachment C, or Exhibit C.
11
MS. ALEXANDER: Thank you.
12
MS. TIPSORD: Ms. Franzetti?
13
MS. FRANZETTI: Yes. With respect to
14 the seven-year long stakeholder process, at what
15 point in that seven years did the Agency propose to
16 the stakeholders, the participants, what the thermal
17 standards were going to be for the various UAA water
18 body segments?
19
MR. TWAIT: I believe the answer to
20 that would be when we came up with our first draft,
21 January 2007.
22
MS. FRANZETTI: So that was one year
23 ago, correct?
24
MR. TWAIT: Yes.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: Okay. Have you since
2 changed from your initial proposal in January 2007
3 what your numeric proposed thermal standards are in
4 this rulemaking?
5
MR. TWAIT: Yes.
6
MS. FRANZETTI: And when were those
7 proposed?
8
MR. TWAIT: When we made the proposal
9 to the Board.
10
MS. FRANZETTI: And that is in October
11 of 2007, correct?
12
MR. TWAIT: Yes.
13
MS. FRANZETTI: So in effect, Industry
14 has had about three months to review and determine
15 what the impact is of these proposed thermal
16 standards. Is that correct?
17
MR. TWAIT: The changes that we made
18 in October are less stringent than they were for the
19 January 2007.
20
MS. FRANZETTI: All right. Let me --
21 I'll accept that, because I don't want to have this
22 digress into the date.
23
MS. WILLIAMS: And I don't want to go
24 into standards.
L.A. REPORTING (312) 419-9292
61
1
MS. FRANZETTI: Right. I'm trying not
2 to. Would you agree that in order for Industry to
3 conduct any economic analysis of the impact of a
4 proposed standard, it needs to know what the
5 proposed standard is?
6
MR. SULSKI: May I answer that?
7
MS. FRANZETTI: Sure.
8
MR. SULSKI: When we started the
9 Chicago Area Waterways System UAA, we did a water
10 quality assessment. We screened the waterways for
11 various levels of various constituents, which we
12 knew right off the bat would be our problem in the
13 system.
14
For example, dissolved oxygen. We
15 asked the district to look at three different levels
16 of dissolved oxygen, not knowing what the final
17 standard would be, but knowing about where it would
18 be to hit certain levels to know what would be
19 required to meet different levels of standards, and
20 they proceeded.
21
When temperature was assessed, it
22 was assessed and everything was assessed against
23 secondary contact and general-use waterways.
24 Through the stakeholder process, it became clear to
L.A. REPORTING (312) 419-9292
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1 the stakeholders that some of these -- since most of
2 the parameters were meeting general use standards,
3 that dissolved oxygen temperature in areas that had
4 sufficient aquatic habitat would be looking towards
5 meeting those types of standards.
6
So general-use standards at a
7 minimum, it should've been apparent to the
8 stakeholders, and I think that it was that that was
9 the goal that we were looking for, and those are the
10 numbers that should be evaluated. So, it was
11 earlier on, much earlier on, in the process that
12 targets were discussed.
13
MS. FRANZETTI: With -- excuse me.
14 With respect to the thermal standards that you have
15 proposed, it is correctly, though, is it not, that
16 they are more stringent than the existing
17 general-use thermal standards; correct?
18
MR. TWAIT: Yes.
19
MS. FRANZETTI: Okay. And so if
20 someone had given you economic information using
21 Mr. Sulski's point that we should've known and based
22 it on general-use thermal standards, that economic
23 analysis would now not be full and complete because
24 it's based on more lenient standards. Would you
L.A. REPORTING (312) 419-9292
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1 agree with that?
2
MR. TWAIT: To a point I would agree
3 with that. I think all -- I think meeting the
4 general-use standard if -- that would be one cost,
5 and I think that that would get you in the ballpark
6 of meeting the existing standards.
7
MS. FRANZETTI: Now just the last one.
8 I will --
9
MR. ETTINGER: Sorry. I just never
10 know when she's finshed.
11
MS. FRANZETTI: With -- and with
12 respect to the economic impact information that
13 Midwest Generation did provide to the Agency, did
14 the Agency conduct any analysis -- excuse me -- to
15 determine whether those economic impacts were
16 economically reasonable?
17
MR. TWAIT: No.
18
MS. FRANZETTI: Did the Agency provide
19 any feedback, any comment, back to Midwest Gen which
20 represent to the economic information that it had
21 submitted to the Agency?
22
MR. TWAIT: I'm not sure that I have
23 an answer for that. Toby Frevert was involved in
24 that also, and I don't know what communications he
L.A. REPORTING (312) 419-9292
64
1 had with Midwest Generation.
2
MS. FRANZETTI: That's fine. I
3 understand. Other than Toby, did anyone provide
4 feedback from Midwest Generation?
5
MR. TWAIT: I did not.
6
MS. FRANZETTI: Okay. Counsel?
7
MS. TIPSORD: Did you have a question?
8
MR. FORT: No, she covered it.
9
MS. TIPSORD: Okay. Thank you.
10 Mr. Ettinger?
11
MR. ETTINGER: I gather it was
12 contemplated from the beginning of this UAA process
13 that one possibility was that the general use
14 standards would be applicable to what's called in
15 the proposal of the Upper Dresden Pool. Is that
16 correct?
17
MR. TWAIT: Could you say that again?
18
MR. ETTINGER: During this seven-year
19 process, was one of the possibilities contemplated
20 that the general use that now -- designation that
21 now stops at the I-55 bridge, that it would be
22 extended up the Brandon Road lock and dam, which is
23 what we -- what is called in the proposal, the Upper
24 Dresden Pool.
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: I don't believe that we
2 had anticipated that general use would be extended,
3 although we wanted to use the most up-to-date
4 standards for thermal water quality standards.
5
MR. ETTINGER: Did Midwest Generation
6 ever give you a dollar figure or an economic study
7 of what it would cost it to meet the general use
8 standard that's applicable in the rest of the state?
9
MR. TWAIT: I'm not positive whether
10 they did or not.
11
MR. ETTINGER: Is -- I believe you
12 testified that the proposal is more stringent than
13 the general use standard applicable in the rest of
14 the state. Is that correct?
15
MR. TWAIT: Yes.
16
MR. ETTINGER: In the rest of the
17 state, is a portion of the temperature standards a
18 requirement that the temperature not be raised more
19 than five degrees above natural?
20
MS. FRANZETTI: Hearing officer, I'm
21 going to object at this point. I think we're
22 getting far the field of what the economic issue was
23 on this questioning.
24
MR. ETTINGER: I'm just trying to
L.A. REPORTING (312) 419-9292
66
1 clarify his question -- his answer as to whether the
2 standard being proposed is more stringent than the
3 general use standard.
4
MS. TIPSORD: We'll let you answer
5 this, and then we're gonna to move on.
6
MR. ETTINGER: I'm sorry. Could you
7 read back his question? I'm not sure whether I did
8 a good job or not, but I'm certain he can't
9 remember.
10
(Whereupon, the record was read as
11
requested.)
12
MR. TWAIT: Yes. That would be
13 accurate.
14
MR. ETTINGER: Is that requirement
15 applicable to this proposal?
16
MR. TWAIT: No.
17
MR. ETTINGER: Thank you.
18
MS. TIPSORD: All right. Mr. Safley,
19 I think we're ready to go back to you, and some of
20 your question may have been knocked off here.
21
MR. SAFLEY: I think so. I think that
22 our questions 12 and 13 I don't need to go into any
23 further.
24
MS. TIPSORD: Okay.
L.A. REPORTING (312) 419-9292
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1
MR. SAFLEY: Moving on to our question
2 14 -- and I'll ask it as written, and then if I need
3 to clarify it based on the experience of the last
4 question, I'll be happy to. How does the Agency
5 determine a proposed rule is technically feasible?
6
MR. SULSKI: In the case of this
7 proposal, we looked at, basically, four
8 technologies, or three technologies, that are fairly
9 widely used or we have enough experience with to not
10 have to delve too far into whether they're feasible.
11 I mean, they are feasible. They're used all over
12 the place.
13
So we're talking about cooling,
14 which is used everywhere in the world to cool water.
15 Disinfection. Disinfection has been successfully
16 used for many, many years across many and through
17 many applications, especially the wastewater
18 treatment industry. In-stream aeration is another
19 technology that the MWRD has a lot of experience
20 with over the years and employs it in other -- in
21 some of the waterways in CAWS, and then flow
22 augmentation, which is -- it's pumping water that's
23 not a -- it's not a NASA technology.
24
MR. SAFLEY: The next question I have,
L.A. REPORTING (312) 419-9292
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1 as I have it written here, is what factors are taken
2 into consideration, and as -- I want to make sure I
3 understand. As I understand your response, what the
4 Agency was looking at is: Do technologies exist
5 which can be used by dischargers to meet the
6 proposed standards?
7
MR. SULSKI: That's correct.
8
MR. SAFLEY: Okay. Does the Agency
9 consider anything beyond whether the technology
10 existed on technical feasibility?
11
MR. SULSKI: On technical feasibility?
12 That's the primary. That's the primary points.
13
MR. SAFLEY: Does the Agency consider
14 whether dischargers have the room to construct --
15
MR. SULSKI: That was -- that was also
16 considered.
17
MR. TWAIT: Yes, that would be more
18 site-specific and not technically feasible.
19
MR. SAFLEY: Okay. Well, and that's
20 what I'm talking -- I'm trying to make sure I
21 understand how the Agency thinks about that, and
22 what it considers on a site-specific basis, and
23 whether those site-specific considerations go into
24 the Agency's thinking on objective feasibility.
L.A. REPORTING (312) 419-9292
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1
So what I'm hearing, I think, is
2 when the Agency thinks about the proposed rule and
3 whether it's technically feasible for dischargers to
4 comply, the Agency is not taking into account those
5 site-specific issues at that stage. Is that
6 correct?
7
MR. TWAIT: That's correct.
8
MR. SAFLEY: And then the next
9 question is my number 15. You may have already
10 answered it. What is the Agency's justification for
11 the technical feasibility of this proposal? Would
12 that be what we just discussed, your consideration
13 of whether their technologies that are available?
14
MR. SULSKI: Yes. They're available
15 and widely used.
16
MR. SAFLEY: Okay. Next question here
17 under 15: Did the Agency perform any studies or
18 conduct any research regarding the technical
19 feasibility of the proposed rule?
20
MR. SULSKI: No.
21
MR. SAFLEY: And then my question 16
22 -- and, again, we may have already answered this,
23 but it will be quick to go through it. If no
24 studies were performed by the Agency that addressed
L.A. REPORTING (312) 419-9292
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1 the technical feasibility of the proposed rule, then
2 what does the Agency base its technical
3 justification of the proposed rule? Again, is that
4 -- that's the availability of these technologies.
5
MR. SULSKI: It's off the shelf
6 available technology is what we're looking at.
7
MR. SAFLEY: Okay. And --
8
MR. TWAIT: Also, the study performed
9 by MWRD as opposed for flow augmentation.
10
MR. SAFLEY: With regard to the off
11 the shelf technologies, what information has the
12 Agency provided to the Board on which the Board can
13 base its determination that compliance with the
14 proposed rule is technically feasible?
15
MR. SULSKI: It's outlined -- this
16 information is outlined very well by some of the
17 studies that were submitted that MWRD undertook and
18 submitted.
19
MR. SAFLEY: And those are included in
20 the rulemaking?
21
MR. SULSKI: They are.
22
MR. SAFLEY: Is there anything beyond
23 that that you would point to in the Agency's
24 rulemaking proposal on the issue of technical
L.A. REPORTING (312) 419-9292
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1 feasibility?
2
MR. SULSKI: No, no.
3
MR. SAFLEY: I'm going to wait on our
4 question 17, 18, and 19, those are more specific
5 questions, and move on to our last pre-filed
6 question, which is 20.
7
MS. TIPSORD: Excuse me.
8
MR. SAFLEY: Yes. I'm sorry. I
9 apologize.
10
MS. TIPSORD: All the way back of the
11 room.
12
MR. SWENSON: Peter Swenson with EPA.
13
MS. TIPSORD: Could you come up,
14 Peter? We can't hear you at all back -- from --
15 either that or shout.
16
MR. SWENSON: Peter Swenson with EPA.
17 EPA prepared a list of assessments of disinfection
18 options. I was wondering if that was considered in
19 the -- in your proposal?
20
MR. SULSKI: Yes.
21
MR. SAFLEY: Is that document included
22 in the record that was submitted to the Board?
23
MR. SULSKI: I don't believe so.
24
MR. SAFLEY: Can we get a copy of that
L.A. REPORTING (312) 419-9292
72
1 document?
2
MR. SULSKI: Yes. We can -- we can
3 submit it as an exhibit tomorrow.
4
MS. TIPSORD: Albert, you had a
5 followup?
6
MR. ETTINGER: That was my question.
7
MS. TIPSORD: Then question number 20.
8
MR. SAFLEY: Yes, ma'am. If the
9 proposed rule is adopted as drafted, how will the
10 rule impact these charges that currently have
11 regulatory relief from the current water quality
12 standards for the CAWS and the Lower Des Plains
13 River?
14
MS. WILLIAMS: Can you be more
15 specific? How's that --
16
MR. SAFLEY: Well, I can try. I
17 guess, to lay some ground work, am I correct that
18 there are entities which discharge to the CAWS or
19 the Lower Des Plaines who have received regulatory
20 relief in one form or another, either a
21 site-specific rule, an adjusted standard, or
22 various, from the Illinois Pollution Control Board
23 with regard to their discharge?
24
MR. TWAIT: I think some of the relief
L.A. REPORTING (312) 419-9292
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1 that has been granted by the Board will no longer be
2 necessary with the new water quality standards.
3
MR. SAFLEY: And why would that be?
4
MR. TWAIT: As an example for
5 temperature, Midwest Generation has relief down to
6 the -- at the I-55 bridge. I'm not -- I don't have
7 the numbers in front of me. However, with the
8 proposed standards being more stringent and general
9 use, the relief that they currently have would --
10 would not be -- would not be beneficial.
11
MR. SAFLEY: Okay. So when you --
12 when you say "not necessary," you mean that the
13 relief is from a standard, for example, temperature,
14 which will no longer exist. Therefore, the relief
15 doesn't -- wouldn't apply to the circumstances as
16 they would exist after the proposed rules?
17
MR. TWAIT: No. What I'm trying to
18 say is the proposed standard is more stringent than
19 what the relief allows.
20
MR. SAFLEY: Okay. So if they're
21 complying up to that regulatory relief, they would
22 be in violation of the new standard?
23
MR. TWAIT: Yes.
24
MR. SAFLEY: Okay.
L.A. REPORTING (312) 419-9292
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1
MS. WILLIAMS: I -- can I follow up a
2 little just to clarify?
3
MR. SAFLEY: Of course.
4
MS. WILLIAMS: I think that this is a
5 confusing example in a way because the relief that
6 you're talking about is actually not relief in the
7 secondary contact waters. So they don't have
8 relief, now, from a secondary contact standard, and
9 Scott is describing the impact on their relief from
10 a general use standard.
11
MR. SAFLEY: Right.
12
MS. WILLIAMS: You may -- if you have
13 specific --
14
MR. SAFLEY: Well, and again --
15
MS. WILLIAMS: -- relief in this
16 waterway you want us to address, then go ahead.
17
MR. SAFLEY: Well and I -- you know,
18 on behalf of IERG, I don't have any specific --
19 specifics that I can throw out there. IERG is an
20 entity. I'm representing parties across the state,
21 not a discharger itself. So I don't have any
22 specifics that I can throw out there.
23
MS. WILLIAMS: Then I think the answer
24 is we tried looking at the ones we were aware of and
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1 we did not identify any significant concerns, but
2 we, I think in the Statement of Reasons, flagged
3 that as an issue to be brought out here if it was
4 one or a specific party.
5
MS. TIPSORD: If I may -- have you
6 proposed for repeal any of the
7 site-specific --
8
MS. WILLIAMS: No.
9
MS. TIPSORD: So they would still be
10 in effect?
11
MS. WILLIAMS: Correct.
12
MS. TIPSORD: So, if you have sited
13 specifically somewhere else in the rule, that would
14 still be what your standards would be even under
15 this new rule.
16
MS. WILLIAMS: In the -- are you
17 referring specifically to site-specific rule
18 makings.
19
MS. TIPSORD: Yes.
20
MS. WILLIAMS: Okay.
21
MS. TIPSORD: If you have a
22 site-specific rule that says you may discharge X, it
23 doesn't matter what if you don't repeal that --
24
MS. WILLIAMS: Correct.
L.A. REPORTING (312) 419-9292
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1
MS. TIPSORD: -- this rulemaking does
2 impact the site-specific rule.
3
MS. WILLIAMS: Correct. I'm not --
4 I'm not familiar with whether that answer was even
5 saying for an adjusted standard or a variance, but
6 that is -- I think that's the correct answer for a
7 site-specific rule.
8
MS. TIPSORD: Okay.
9
MS. TIPSORD: Identify yourself.
10
MR. DIAMOND: Sure. This is Tom
11 Diamond. Mayer Brown for Stepan and Company. This
12 is a little out of order, Madam Hearing Officer, but
13 if you'll indulge me.
14
Mr. Sulski, on some of your
15 earlier answers to questions regarding the UAA
16 factors, you pointed us to the UAA reports that were
17 attached to the Statement of Reasons. The UAA
18 report for the Lower Des Plaines River, if I recall
19 correctly, is dated in 2003. Has the Agency had any
20 internal considerations about the analysis of the
21 UAA factors in that report since 2003?
22
MR. SULSKI: Yes.
23
MR. DIAMOND: What considerations have
24 those been?
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1
MR. SULSKI: We received and we
2 considered other data that we came by, and -- which
3 was included in the record, and asked the question
4 whether the Upper Dresden Isle Pool, for example,
5 could attain a Clean Water Act goal, and based on
6 the data, including a lot of the data in the report,
7 but based on the wealth of information and the
8 weight of evidence, we conclude that yes, it could
9 meet the Clean Water Act goal aquatic life uses.
10
MR DIAMOND: When did the Agency reach
11 that conclusion?
12
MR. SULSKI: Prior to putting together
13 the proposals, so six months ago. Before or after
14 the outreach. I don't know. I'm not -- I'm not
15 sure exactly.
16
MR. DIAMOND: What was the other data
17 that's included in the record that you considered
18 after 2003?
19
MR. SULSKI: There's a number of
20 studies listed in the proposal. There's an MBI,
21 there's one of the resources, CAB is another
22 resource. The attachments, Attachment R, 2004.
23 Attachment S is 2006. Those are two that stand out
24 right at the moment. Attachment U, and -- I mean,
L.A. REPORTING (312) 419-9292
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1 there's a wealth of -- or a great number of
2 documents that we looked at when formulating
3 criteria that are listed as well.
4
MR. DIAMOND: When you mean
5 "criteria," do you mean a numerical standard?
6
MR. SULSKI: Numerical standards, yes.
7
MR. DIAMOND: That's all I have.
8
MS. TIPSORD: Then if we're finished
9 with IERG --
10
MR. SAFLEY: I just have one or two
11 followup questions --
12
MS. TIPSORD: Okay.
13
MR. SAFLEY: -- with regard to
14 question -- our question -- pre-filed question 20.
15 We talked earlier a little bit about mixing zones
16 and the fact that in some cases, the water bodies
17 would be meeting the proposed rule, or appear, at
18 least as this point, to be meeting the proposed
19 rules, in other cases they don't, and how the mixing
20 zone rule would apply in that circumstance.
21
Linking that to what we were
22 talking about with regard to our Question 20 and
23 parties that have regulatory relief, if a party has
24 site-specific rule which authorizes them to
L.A. REPORTING (312) 419-9292
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1 discharge a parameter into the water body of the
2 level that -- that renders the water body in that
3 location not in compliance with one of the proposed
4 standards, and that noncompliance is still existing
5 downstream of that discharger at a location where
6 another party discharges, would that be an instance
7 in which that downstream discharger would not be
8 able to utilize a mixing zone with their discharge?
9
MR. ETTINGER: I'm going to object to
10 that question.
11
MS. WILLIAMS: I'm not sure if I
12 understand. I'm sitting here trying to figure out
13 -- whether I think it's a background or standards of
14 question.
15
MR. SAFLEY: Well, I was just trying
16 to wrap up, because we talked about mixing zones
17 earlier, and I think Scott Twait was nodding that he
18 understood the question, and I apologize for -- for
19 asking a long question.
20
What -- again, what our Question
21 20 on behalf of IERG was trying to get to, is the
22 impact of -- or the interrelation between the rule
23 and regulatory relief, and I -- and bound up in
24 that, at least to some extent, is the effect of
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1 regulatory relief on other dischargers, and so that
2 -- I was trying to pull that all together, and the
3 question is, maybe to ask it more succinctly, if a
4 water body is out of compliance for a parameter
5 because of regulatory relief, and -- does another
6 discharger discharging into that water body where
7 it's out of compliance, are they precluded from
8 utilizing a mixing zone?
9
MR. TWAIT: I don't know if we're
10 aware of any of those instances.
11
MR. SAFLEY: Okay. Those are all my
12 questions.
13
MS. TIPSORD: Okay. Mr. Harley has a
14 followup.
15
MR. HARLEY: For purposes of the
16 record, first Keith Harley, Chicago Legal Clinic
17 representing the Southeast Environmental Task Force.
18
For purposes of clarifying the
19 record, you've indicated that you refer to
20 commonly-used, long-standing technologies already
21 employed at facilities in Illinois in order to come
22 to conclusions about technical feasibility. Is that
23 correct?
24
MR. SULSKI: Yes.
L.A. REPORTING (312) 419-9292
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1
MR. HARLEY: And did you consider the
2 duration of those uses, how long they've been used?
3
MR. SULSKI: Yes.
4
MR. HURLEY: And how widespread those
5 uses are?
6
MR. SULSKI: Yes.
7
MR. HURLEY: I wanted to ask a few
8 clarifying questions on those precise things
9 relating to the four technologies you mentioned,
10 starting with cooling towers. How common are
11 cooling towers at coal-fire power plants in
12 Illinois?
13
MR. SULSKI: They're -- as far as I
14 know, they're common.
15
MR. HURLEY: And for how long have
16 cooling towers been used at coal-fire power plans in
17 order to control thermal discharges at those -- at
18 those power plants?
19
MR. SULSKI: Well, I can safely say at
20 least 25 years is as long as I've been aware of
21 them. I know that they're in regulating facilities
22 throughout the Chicago Metropolitan area that have
23 encountered cooling towers.
24
MR. HURLEY: In the issue of
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1 disinfection --
2
MR. TWAIT: Is that for coal-fire
3 power plants?
4
MR. SULSKI: Coal-fire? Yes. You're
5 specific on coal-fired power plants?
6
MR. HURLEY: Yes.
7
MR. SULSKI: Yes.
8
MR. HARLEY: That was my question. On
9 the issue of disinfection, for how long had
10 disinfection technologies been used in
11 publicly-owned treatment works in Illinois?
12
MR. TWAIT: Probably 30 to 40 years.
13
MR. HARLEY: And what percentage of
14 all of the operators of publicly owned treatment
15 works in Illinois presently used disinfection
16 technologies would you guess?
17
MR. DIAMOND: Objection. Calls for
18 speculation.
19
MR. HARLEY: Do you --
20
MS. WILLIAMS: I don't -- I don't -- I
21 mean I can -- I don't think it does call for
22 speculation, because Scott grants disinfection
23 exemptions. So if he knows, I think it's not
24 speculative as to him. I'm not sure if he does
L.A. REPORTING (312) 419-9292
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1 know, but...
2
MS. TIPSORD: You can answer the
3 question.
4
MR. TWAIT: I'll try. Some facilities
5 have disinfection exemptions and they do not
6 disinfect at all. Some facilities, I'm going to
7 say, just, you know, off the cuff number, 15 percent
8 have seasonal disinfection exemptions, and they
9 disinfect seasonally. There's also a portion that
10 disinfect year-round.
11
MR. HARLEY: In terms of in-stream
12 aeration, which you mentioned as another technology
13 that is recommended by rule, for how long has
14 Metropolitan Water Reclamation District aerate its
15 wastewater?
16
MR. SULSKI: I don't know exactly. I
17 want to say for approximately 20 years. Somewhere
18 in that, plus or minus three or four years, although
19 it may be earlier than that for certain technologies
20 that they have.
21
MR. HARLEY: And in the issue of flow
22 augmentation, for how long have flow augmentation
23 technologies and techniques been required by the
24 Agency as part of its permitting of individual
L.A. REPORTING (312) 419-9292
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1 facilities?
2
MR. SULSKI: They haven't. This is
3 the first situation where we identified a zone in a
4 waterway that would meet an expectation through flow
5 augmentation, and it's primarily because the
6 dissolved oxygen -- you couldn't drive enough
7 dissolved oxygen into that reach to make much of a
8 difference unless you also added some flow. So
9 that's -- so they go hand in hand.
10
MR. HARLEY: Is it fair to say that
11 when you considered the technological feasibility
12 and the common use of what you're recommending your
13 rule, that this placed centrally into your
14 conclusions about the economic reasonableness, of
15 the rule.
16
MR. ANDES: Objection. Didn't he
17 already say he didn't make any economic reasonables?
18
MS. TIPSORD: But I then asked as
19 proponent if they believed the rule was economically
20 reasonable, and they said yes. So they have
21 concluded that they believe what they've proposed is
22 economically reasonable, although it is ultimately
23 the Board's decision. So your objection's
24 overruled.
L.A. REPORTING (312) 419-9292
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1
MR. SULSKI: Yes.
2
MR. HARLEY: Thank you.
3
MS. TIPSORD: Okay. With that, then,
4 let's -- you got followup?
5
MS. FRANZETTI: Yeah. Just one.
6
MS. TIPSORD: Okay. That's okay.
7
MS. FRANZETTI: I'm trying not to --
8
MS. TIPSORD: That's quite all right.
9 Go ahead.
10
MS. FRANZETTI: I will try very hard
11 not to get us down into topics that we haven't
12 really gotten into. But given all the questions
13 about the commonly used technology of cooling towers
14 at coal-fire generating stations, with respect to
15 these stations that you were referring to in
16 answering Mr. Harley's questions, how many of those
17 were stations where they had been built without
18 cooling towers, existing plans, and now need to be
19 fully retrofitted with cooling towers?
20
MS. WILLIAMS: You're looking at
21 Scott, but I just want to --
22
MS. FRANZETTI: Oh, Mr. Sulski.
23
MS. WILLIAMS: -- for the record that
24 Rob answered the question.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: Whoever wants to
2 answer it. Just trying to make a difference between
3 retrofitting and existing plants and building a
4 plant with cooling towers, which I think is what you
5 were referring.
6
MR. TWAIT: To my knowledge, no plant
7 has been retrofitted with cooling towers except for
8 Midwest Generation's --
9
MS. FRANZETTI: Joliet?
10
MR. TWAIT: -- Joliet plant.
11
MS. FRANZETTI: Thank you.
12
MR. FORT: Madam Hearing Officer,
13 Jeffrey Fort at Sonnenschein Nath and Rosenthal on
14 behalf of Citgo.
15
We've had some discussions here
16 about the common technologies. With respect to
17 those technologies, have you been thinking about
18 coal-fired power plants and wastewater treatment
19 plants alone? Have you been considering other kinds
20 of industrial applications with respect to your
21 available technology?
22
MR. TWAIT: No. There's -- cooling
23 towers are used at industrial facilities also.
24
MS. TIPSORD: So you have been
L.A. REPORTING (312) 419-9292
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1 considering other types of -- not -- you haven't
2 just looked at those two types of --
3
MR. TWAIT: Yes. Well, nobody else
4 came forward, and to bring up this issue --
5
MR. FORT: I'm just asking.
6
MR. TWAIT: -- at a stakeholders
7 meeting.
8
MR. FORT: I'm just asking the
9 questions that you've answered that you've given
10 very specific examples, and in answering those are
11 you thinking about wastewater treatment plants, and
12 coal-fired power stations in answering to give
13 examples of those technologies? I'm not asking if
14 that's all. Just answer that one first.
15
MR. SULSKI: Are we thinking about
16 those two types of facilities? Yes, we are.
17
MR. FORT: Okay. Mr. Twait answered
18 with respect to cooling towers are also used in
19 industrial facilities. Do you know if cooling
20 towers are used on biological treatment systems in
21 order to achieve nitrification? Because those
22 systems, of course, have to be heated up in the
23 winter to keep the nitrifying bacteria going.
24
MR. TWAIT: I don't know if that would
L.A. REPORTING (312) 419-9292
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1 be considered a cooling tower, would it?
2
MR. FORT: I'm talking about a cooling
3 tower after a nitrification activity in a biological
4 application.
5
MR. TWAIT: Not -- not that I'm aware
6 of.
7
MR. FORT: Okay. Thank you.
8
MR. TWAIT: Although -- no. I'll just
9 answer not that I'm aware of.
10
MR. FORT: Thank you.
11
MS. TIPSORD: All right. Yes.
12
MR. HYNES: I'm sorry, I just have a
13 -- My name's Kevin Hynes. I'm with O'Keefe, Lyons,
14 and Hynes on behalf of the Chemical Industry
15 Council. I want to follow up on that question.
16
MS. TIPSORD: You're gonna have to
17 speak up.
18
Mr. HYNES: Okay. I'm sorry.
19
MS. TIPSORD: We can't hear you at
20 all.
21
MR. HYNES: My name's Kevin Hynes.
22 I'm with O'Keefe, Lyons, and Hynes. I represent the
23 Chemical Industry Council. I'm just looking for
24 clarification. Is your statement, then, earlier
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1 regarding economics that this is -- this proposal is
2 economically reasonable? Is it reasonable, based on
3 your understanding of MWRD and Midwest Gen, or are
4 you considering this reasonable for all of those who
5 discharge?
6
MR. TWAIT: At the stakeholders
7 meetings, no one brought up the issue of industry
8 facilities and their concerns about temperature. I
9 would have to say that it's economically feasible
10 just -- technically feasible and economically
11 reasonable for cooling towers, just based on the
12 fact that other industries throughout the state use
13 it.
14
MR. HYNES: I don't know if that
15 answers my question. I think the statement that was
16 proposed to me earlier was the proposal in its
17 entirety is economically reasonable. Was your focus
18 solely on Midwest General -- the impact on Midwest
19 Generation and MWRD, or all dischargers on this
20 water system?
21
MR. SULSKI: We focused on the
22 dischargers that we knew of that were -- basically
23 dominated the system. The other dischargers that we
24 know of, some attended the stakeholder meetings,
L.A. REPORTING (312) 419-9292
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1 others we've reached out to the best we could to
2 participate in the process, and as Scott said, none
3 came forward to indicate a concern of impact on them
4 that I'm aware of. Midwest Generation and MWRD did,
5 so that was the primary focus -- that was our
6 primary focus, plus the fact that they dominate the
7 system in terms of flows. I mean, seriously
8 dominate.
9
MS. TIPSORD: Okay. Let's -- I have
10 about 20 to 12. It's probably -- let's just go off
11 the record here.
12
(Whereupon, a discussion was had
13
off the record.)
14
(Whereupon, a break was taken,
15
after which the following
16
proceedings were had.)
17
MS. TIPSORD: Thank you, everyone.
18 Thank you, actually, for your promptness. Thank you
19 very much. Go ahead.
20
MS. FRANZETTI: Hi. Susan Franzetti,
21 counsel for Midwest Generation. And, if I may,
22 before I start with my pre-file questions, I had a
23 few followups on the first five, six questions of
24 Mr. Safley for IERG in terms of the six UAA factors.
L.A. REPORTING (312) 419-9292
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1 So if I may -- to go back and just finish up on that
2 topic.
3
With respect to the Agency's
4 response that -- looking for what the Agency's
5 findings are as to each of the five of the six UAA
6 factors that it did utilize and apply in this
7 proceeding, I wanted to make sure I understood
8 correctly, and I'll break it down, first taking the
9 UAA report for the Lower Des Plaines River, which I
10 believe is Attachment A, to the Agency's Statement
11 of Reasons.
12
Am I correct in understanding the
13 Agency's responses this morning that if I read that
14 report and where it makes findings as to which of
15 the UAA factors apply in the Lower Des Plaines
16 segments, you are telling me that the Agency adopts
17 all of the findings to that effect in that report,
18 or do I need to start trying to compare what you
19 said in the 2007 Statement of Reasons to what is
20 said in the 2003 UAA report? Because I am not sure
21 it's consistent
22
MR. SULSKI: You would need to do
23 that, and it's specified in the Statement of
24 Reasons. It says that it summarizes the two UAA
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1 reports, and then it says that in some cases that we
2 differ with the opinion of the contractor, and it
3 spells out exactly where that -- where we differ
4 with the contractor's opinion on recreation, for
5 example.
6
MS. FRANZETTI: Okay.
7
MR. SULSKI: So, yes. In answer to
8 your question, yes. You would need to look at our
9 Statement of Reasons and the reports, the UAA
10 reports and contractors reports, and we spell out in
11 the Statement of Reasons some differences.
12
MS. FRANZETTI: Do you know whether as
13 you sit there, and you may not -- you may need to
14 have to review it, whether you differed with the
15 contractor on any of the Lower Des Plaines findings
16 as to the UAA factors for aquatic life uses?
17
MS. WILLIAMS: Do you want to take
18 that?
19
MR. TWAIT: Yeah. I think the answer
20 would be yes, we disagree. The contractor was -- I
21 don't -- I don't think we -- I don't think we used
22 all his recommendations, but I'd have to -- we'd
23 have to go back and look to find -- be more
24 specific.
L.A. REPORTING (312) 419-9292
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1
MR. SULSKI: It's generally covered in
2 that Statement of Reasons where we differed and why.
3
MS. FRANZETTI: Okay. It may well be.
4
MR. SULSKI: Okay.
5
MS. FRANZETTI: I, frankly, have to
6 admit that it isn't clear to me, and if I could make
7 a request when the agents, as you have a moment to
8 do this, if you could, for the aquatic life uses,
9 take a look back and clarify where the Agency --
10 whichever way it's easier for you, where you differ
11 from the findings of the UAA report, and I will
12 apply that to both the Lower Des Plaines UAA report
13 on aquatic life uses and the CAWS UAA report,
14 Attachment B, for aquatic life uses.
15
MR. SULSKI: Okay.
16
MS. FRANZETTI: Thank you. I
17 appreciate it.
18
MS. TIPSORD: Mr. Ettinger?
19
MR. ETTINGER: I'm just making sure.
20 When you say "the contractor" are you talking about
21 the HAY and associates report at the lower UAA?
22
MS. FRANZETTI: For the Lower Des
23 Plaines, yes. Attachment A for Attachment B, the
24 CAWS camp dresser.
L.A. REPORTING (312) 419-9292
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1
MR. ETTINGER: Okay. Thank you.
2
MS. FRANZETTI: With respect to --
3 still staying with UAA factors, with respect to the
4 Upper Dresden Pool, do I understand the testimony
5 this morning to be that for the Upper Dresden Pool
6 of the five UAA factors that the Agency considered,
7 it found that none of them apply to the Upper
8 Dresden Pool. Is that correct?
9
MR. SULSKI: Correct. None of them
10 applied to the extent that we would -- we would say
11 that they couldn't meet Clean Water Act goals.
12
MR. TWAIT: However --
13
MS. FRANZETTI: Did -- Mr. Twait?
14
MR. TWAIT: However, we did use one of
15 the factors for the cadmium water quality standard,
16 but as Rob stated, we did not use it for the use.
17 We just used it for the standard.
18
MS. FRANZETTI: Okay. Again, if I
19 understand correctly, so the way the Agency is
20 interpreting and applying the UAA regulation, is
21 that it's a -- it's almost it's a two step process.
22 First, one looks at those factors and determines
23 whether or not one or more of them are applicable,
24 and therefore preclude for that water body attaining
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1 the Clean Water Act either fishable or swimmable
2 goals. Correct?
3
MR. SULSKI: Correct.
4
MS. FRANZETTI: And then the Agency --
5 so the Agency did that for purposes of what the
6 appropriate use designation should be, but then it
7 came back to this six UAA factors, or five in this
8 case for the Agency. It came back to the five
9 factors when it was doing the water quality
10 standards derivation process, and at least for
11 cadmium decided that one of the five UAA factors
12 precluded attaining what would otherwise be the
13 cadmium numerical water quality standard for a Clean
14 Water Act fishable/swimmable segment?
15
MR. TWAIT: Only for cadmium did we do
16 that, and that was based on the fact that we could
17 not meet the national criteria for cadmium, and we
18 used another -- what we considered a protective
19 water quality standard for the use, which was the
20 general use cadmium water quality standard.
21
MS. FRANZETTI: Which of the five
22 factors -- which ones of the five UAA factors the
23 Agency was using did you find applied for cadmium?
24
MR. TWAIT: I believe we cited in our
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1 Statement of Reasons that we were using use number
2 three, factor number three. Human caused conditions
3 or sources of pollution prevent the attainment of
4 the use and cannot be remedied or would cause more
5 environmental damage to correct than leave in place.
6
MS. FRANZETTI: And, Mr. Twait, is
7 that what you were referring to when you made
8 reference earlier today to sediments being another
9 reason on which the Agency relied for finding that
10 factor three applied?
11
MR. TWAIT: Yes.
12
MS. FRANZETTI: All right. So it's
13 the presence of contaminated sediments in the
14 waterway that led the Agency to conclude that for
15 cadmium, factor three of the UAA regulation applies?
16
MR. TWAIT: Yes.
17
MS. FRANZETTI: Now, can I go one more
18 step for clarifications purposes? Which part of the
19 waterway? Is it all parts for cadmium?
20
MR. TWAIT: We did it for all parts of
21 the waterway.
22
MS. WILLIAMS: And I think I will add
23 to that that the Agency is considering whether that
24 was done appropriately for the Lower -- for the
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1 Upper Dresden Island Pool. Given the use we are
2 proposing, we may, as you proceed, develop, go back,
3 revisit that if necessary.
4
MS. TIPSORD: Deb, I'm sorry. They
5 couldn't hear you at all back there.
6
MS. WILLIAMS: I just wanted to add
7 that we were re -- we were looking at whether we'd
8 done that correctly for the Upper Dresden Island.
9 He accurately restated what we've done, but we will
10 probably, when we get to talking about standards, be
11 prepared to look at whether that was done
12 appropriately for the Upper Dresden Island Pool.
13
MS. TIPSORD: You faded off.
14
MS. WILLIAMS: I can't say -- I mean I
15 don't know -- I can't say it back again in the same
16 way.
17
MS. TIPSORD: "Done appropriately for
18 the Upper Dresden Island Pool" was the finishing of
19 that.
20
MS. FRANZETTI: Ms. Williams, can you
21 clarify a little further in terms of which way is
22 the Agency thinking is appropriate?
23
MS. WILLIAMS: We don't know. I just
24 want to indicate that we are still looking at our
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1 recommendation on cadmium.
2
MS. FRANZETTI: Okay. So we should
3 view that as just a preliminary recommendation of
4 what the numeric standard should be for cadmium?
5
MR. SULSKI: Yes.
6
MS. WILLIAMS: Yes.
7
MS. FRANZETTI: With respect to this
8 morning, you were discussing factor number two of
9 the UAA regulation, which deals with natural,
10 ephemeral intermittent and low-flow conditions or
11 water levels preventing the attainment of the use,
12 and the testimony was that factor number two
13 pertained primarily to recreation and safety issues,
14 and that it was found to be an added factor, but not
15 a primary factor, and I just did not understand the
16 use of the terms "primary factor" with respect to
17 the UAA factors and an added factor. Could you
18 clarify what was intended or meant by that?
19
MR. SULSKI: I should say we
20 considered sediments, and it's very difficult to
21 make a determination on sediments because there's a
22 limited data to make that determination for factor
23 two.
24
MS. FRANZETTI: But as an added
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1 factor, does the Agency mean, though, that it found
2 that factor two did apply -- was satisfied based on
3 the facts as you do know them?
4
MR. SULSKI: No.
5
MS. FRANZETTI: Was not satisfied?
6
MR. SULSKI: For sediments.
7
MS. FRANZETTI: Yeah.
8
MR. SULSKI: No.
9
MS. FRANZETTI: Then, I'm sorry. I'm
10 still confused as to what an added -- what is meant
11 by an added factor with respect to finding that
12 factor number two does or does not apply. That's
13 all I'm looking for clarification on. Does factor
14 two --
15
MR. SMOGOR: I think this may help
16 clarify. For number two, there are several
17 conditions. There's natural, ephemeral,
18 intermittent, or low flow. I think the low flow
19 part of number two is where we keyed in on, and
20 that's not necessarily mutually exclusive with how
21 some of these other factors address flow as well.
22 So I think that's the extent that factor two
23 probably applied, probably overlapping with more
24 direct factors that are further down the list.
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1
MS. FRANZETTI: Okay. But still has
2 -- factor two does still have applicability?
3
MR. SMOGOR: The -- to the extent that
4 it addresses low-flow conditions, yes.
5
MS. FRANZETTI: If we can stay with
6 sediments for one more moment, can the Agency
7 explain whether -- no, let me rephrase that. Is the
8 presence of contaminated sediments an issue that the
9 Agency looked at for both the Chicago Sanitary and
10 Ship Canal, and for the Upper Dresden Island Pool?
11
MR. SULSKI: Yes.
12
MS. FRANZETTI: Does the Agency
13 believe there are contaminated sediments present in
14 both of those water bodies?
15
MR. SULSKI: Yes.
16
MS. FRANZETTI: And, again, just
17 finishing up, with respect to the upper Dresden
18 Island Pool, given that the Agency has clarified
19 that none of -- it found that none of the five UAA
20 factors it looked at applied, then it would be
21 correct to say that the Agency does not know whether
22 or not factor six, the widespread economic and
23 social impacts factor, may apply to Upper Dresden
24 Island Pool; correct?
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1
MR. TWAIT: Correct.
2
MS. FRANZETTI: All right. Thank you
3 very much. That's finishes the followup questions
4 from this morning. I'll start now with my pre-filed
5 questions. Okay.
6
First topic is statutory basis and
7 legal framework, Environmental Protection Act.
8 Question number one: In its Statement of Reasons of
9 page 2, the Illinois EPA references the following
10 language from Section 27 A of the Illinois
11 Environmental Protection Act, which identifies the
12 criteria that the Board is required to take into
13 account in this rulemaking, quote "the existing
14 physical conditions, the character of the area
15 involved, including the character of surrounding
16 land uses, zoning classifications, the nature of the
17 existing air quality, or receiving body of water as
18 the case may be, and the technical feasibility, and
19 economic reasonableness, of measuring or reducing
20 the particular type of pollution." Citation 2, to
21 the act, and quote "For the area encompassing the
22 Chicago Sanitary and Ship Canal and downstream
23 through the Upper Dresden Pool, please provide the
24 following information: A, has the Illinois EPA
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1 reviewed the character of the area involved, and if
2 so, please provide the information the Agency has on
3 the character of the area involved."
4
MR. SULSKI: Can you specify
5 "character?" That's a pretty broad term.
6 Character?
7
MS. FRANZETTI: No, it is a statutory
8 term.
9
MR. SULSKI: Okay.
10
MS. FRANZETTI: I'm not sure I'm the
11 expert on how it's interpreted. But I --
12
MR. SULSKI: I'll attempt to answer
13 your question.
14
MS. FRANZETTI: Why don't you -- why
15 don't you -- if you would like, you could preface
16 your answer with how do you interpret it.
17
MR. SULSKI: Okay.
18
MS. FRANZETTI: And then tell us what
19 information you have.
20
MR. SULSKI: All right. Well, the
21 short answer is we generally characterized different
22 aspects of these waterways, some more -- in more
23 detail than others. For example, we did a more
24 detailed characterization of who the land owners
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1 were with respect to public access to waterways,
2 where could the public get into the water ways, who
3 would allow it, who wouldn't allow it, what were the
4 factors there.
5
As far as the land as well, we
6 looked at what effects, as a metric for example, how
7 the land would affect some of the indices in
8 determining aquatic life potential.
9
MS. FRANZETTI: Such as QHEI --
10
MR. SULSKI: Correct.
11
MS. FRANZETTI: -- IBI indices?
12
MR. SULSKI: Such as QHEI. So habitat
13 structure, shore line, and I guess another one that
14 would come up would be that we looked at some of the
15 anthropogenic factors that applied in the waterway,
16 in terms of barge traffic and how waves would pound
17 shoreline, or -- and what type of shoreline it was,
18 and how that had an effect. So generally we did
19 look at some of these things, more specifically in
20 certain areas which I just described.
21
MS. FRANZETTI: Mm-hmm. Did you also
22 take into account in terms of the character of the
23 area -- if you took it into account -- excuse me --
24 that it is highly industrial in a lot of the
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1 portions of the CSSC and the Upper Dresden Island
2 Pool?
3
MR. SULSKI: With respect --
4 industrial with respect to private property not
5 allowing public access, that was a consideration.
6
MS. FRANZETTI: I know you took that
7 into account. I'm asking, kind of, more generally.
8 Did you take into account that so much of the
9 properties adjacent to the CSSC and the Upper
10 Dresden Island Pool are industrial properties?
11
MR. SULSKI: From an aquatic habitat
12 standpoint, we looked at aquatic habitat indices,
13 irrespective of whether a house was there or a
14 company was there, so --
15
MS. FRANZETTI: Okay. Did you
16 consider in that regard the generally highly
17 urbanized nature of the area?
18
MR. SULSKI: Yes.
19
MS. FRANZETTI: All right. Did you --
20 did you also consider the fact that due to that
21 highly urbanized nature, there is the potential for
22 contaminated storm water runoff into the waterway
23 from these industrial properties? Did the Agency
24 consider the non-point source nature of this area?
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1
MS. WILLIAMS: So are we on Question E
2 now?
3
MS. FRANZETTI: Well, if I'm covering
4 it, I'll skip it when I get to it, so if it's the
5 same, we can consider it Question E as well.
6
MR. SULSKI: We considered -- we did a
7 water quality assessment and looked at dry and wet
8 weather situations. So in as much as non-point
9 contributed to that, it was evaluated in our water
10 quality assessments, quality of the water.
11
MS. FRANZETTI: And those water
12 quality assessments were primarily on a
13 chemical-by-chemical or parameter-by-parameter --
14
MR. SULSKI: Correct.
15
MS. FRANZETTI: -- assessment? Has
16 the Agency -- I'm moving on to B. As the Agency --
17 has the Illinois EPA reviewed the quote "zoning
18 classifications," end quote, and if so, please
19 provide the zoning classification information the
20 Agency has reviewed.
21
MR. SULSKI: No.
22
MS. FRANZETTI: No. Okay. C. Has
23 the Illinois EPA reviewed the existing physical
24 conditions in relation to habitat requirements
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1 (e.g., substrate, spawning materials, migration
2 access, dissolved oxygen levels, toxicants) of the
3 species and life stages that are being used to
4 establish the proposed thermal water quality
5 standards, and if so, how was this done?
6
MS. WILLIAMS: I mean, do you agree
7 this was one you've already asked in your followup.
8
MS. FRANZETTI: I didn't think I asked
9 it with respect to the establishment of the proposed
10 thermal water quality standards.
11
MS. WILLIAMS: Okay. So do you want
12 him to answer it about the thermal quality?
13
MS. FRANZETTI: Mm-hmm.
14
MS. WILLIAMS: Then can we -- that
15 would make it a standards question, then, right?
16
MS. FRANZETTI: Yeah, it would. Would
17 you prefer I skip? It is that, Counsel, what you're
18 asking? I mean, if you have a problem with me
19 asking that question now, I can skip it and come
20 back to it later.
21
MS. WILLIAMS: Well, I think it makes
22 it a confusing question that is being asked about
23 standard setting as opposed to use designation.
24
MS. FRANZETTI: Okay. We can skip it.
L.A. REPORTING (312) 419-9292
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1 Going on, then, to D. Has the Illinois EPA
2 calculated the total cost (including capital, O&M,
3 energy, and cross-media environmental cross) for
4 point sources of reducing the particular types of
5 pollution that will be subject to more stringent
6 standards here if the Board adopts the current
7 proposal?
8
MR. SULSKI: No.
9
MS. FRANZETTI: Has the Agency
10 considered the contribution of a possible need for
11 reductions by non-point sources?
12
MR. SULSKI: It was considered
13 briefly. We didn't focus our energies on that,
14 because this is a -- this is an effluent dominated
15 waterway.
16
MS. FRANZETTI: I'm sorry, Mr.
17 Sulski --
18
MR. SULSKI: The effluent --
19
MS. FRANZETTI: -- by that, you're --
20 are you telling me that in the Agency's opinion, the
21 urban runoff, which is a non-point source to this
22 waterway, is not a significant stressor to the
23 waterway?
24
MR. SULSKI: It's insignificant
L.A. REPORTING (312) 419-9292
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1 relative to the other inputs into this system, yes.
2
MS. FRANZETTI: Separate and apart
3 from --
4
MR. TWAIT: Well, I think --
5
MS. FRANZETTI: -- relative ranking.
6 Is it on it's own? Is the urban runoff to this
7 waterway a significant stressor to the waterway?
8
MR. TWAIT: We have not done a TMDL on
9 this waterway to consider the reductions that would
10 be needed.
11
MR. FORT: I'm sorry. I didn't hear
12 that. The reductions that --
13
MS. FRANZETTI: That are needed, or
14 may it needed? Are needed?
15
MR. TWAIT: We did not do a TMDL on
16 those -- on the non-point source that may or may not
17 be needed.
18
MR. ETTINGER: Excuse me. When we say
19 "this waterway," are we talking about the Upper
20 Dresden Pool or more?
21
MS. FRANZETTI: My questions -- this
22 is all under the question that's prefaced with the
23 Chicago Sanitary and ship Canal and the Upper
24 Dresden Pool, Counsel.
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1
MR. ETTINGER: Oh. Thank you.
2
MS. FRANZETTI: Moving on to F, has
3 the Agency considered how those costs or any -- of
4 any point -- that's a typo there -- of any point or
5 non-point source controls will effect Illinois
6 taxpayers and ratepayers, and the Illinois economy
7 overall?
8
MR. SULSKI: No.
9
MS. FRANZETTI: Has it attempted to
10 estimate what the social impacts of imposing any
11 such costs will be?
12
MR. SULSKI: I don't see any such --
13 no.
14
MS. FRANZETTI: Okay. I think G has
15 been covered. Moving on to B, the Clean Water Act
16 and Federal Regulations. The Statement of Reasons
17 -- and I think that page citation is a typo, because
18 I wouldn't go from 10 backwards to Page 7, so bear
19 with me. Let's overlook that for the moment.
20
The Statement of Reasons describes
21 the federal statutory provisions applicable to
22 establishment of water quality standards. In
23 particular, it notes that Section 101 (a) (2) of the
24 the Clean Water Act establishes a quote "national
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1 goal that, wherever attainable, an interim goal of
2 water quality that provides for the protection and
3 propagation of fish, shellfish, and wildlife," end
4 quote, be achieved.
5
It further notes that 303(c)(2)(A)
6 requires states in setting standards to serve the
7 purposes of the Clean Water Act, and to take into
8 consideration the use and value of waters for inter
9 alia propagation of fish and wildlife, industrial
10 uses, and other purposes. It then describes U.S.
11 EPA's water quality standards regulations as
12 interpreting section 303(c)(2)(A) to mean that
13 quote, "water quality standards wherever retainable
14 provide water quality for the protection and
15 propagation of fish, shellfish, and wild life."
16
Is there -- my question --
17 Question A is: Is there anything in the Clean Water
18 Act or its implementing regulations that specifies
19 what species or biological assemblage is to be
20 protected?
21
MR. SMOGOR: If you're referring to
22 the Clean Water Act and implementing regulations,
23 are you referring to 40 CFR 131 primarily?
24
MS. FRANZETTI: What includes -- I'm
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1 asking for anything. And, really, the point of the
2 question -- and let me clarify, it may not be
3 written as clearly as it could have been -- is:
4 Isn't is true that the statute in its implementing
5 regulations say you protect fish? It doesn't start
6 further specifying what species of fish need to be
7 protected, whether the most sensitive of all species
8 needs to be protected 100 percent of the time.
9 That's what I'm trying to understand, whether you
10 agree with that.
11
MR. SMOGOR: Yeah. It doesn't really
12 get into specifics to that level.
13
MS. FRANZETTI: Okay. The notion that
14 every water body is supposed to have the same broad
15 assemblage of fish protected is not in the statute.
16 Would you agree with that?
17
MR. SMOGOR: Can you say that again,
18 please?
19
MS. FRANZETTI: The concept, or the
20 notion, that every water body is supposed to have
21 the same broad assemblage of fish -- of species of
22 fish protected is not in the statute. Isn't that
23 correct?
24
MR. SMOGOR: I agree.
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1
MS. FRANZETTI: Okay. Did B -- moving
2 to B, are there any other Clean Water Act provisions
3 that apply with respect to water quality standards
4 for temperature? And, again, by way of
5 clarification, with 20/20 hindsight, I don't mean
6 for this to be an exam on the sections of the Clean
7 Water Act. What we were intending to refer to there
8 is sections like 303 G of the Clean Water Act, which
9 says water quality standards relating to heat shall
10 be consistent with the requirements of Section 316
11 of this act, and I didn't see in the Statement of
12 Reasons, nor do I think I saw it in the UAA reports
13 any discussion of how 30 -- section 303 G's mandate
14 was applied or utilized here by the Agency with
15 respect to the thermal water quality standards it
16 has proposed in this proceeding.
17
MS. WILLIAMS: I think you are correct
18 that there's no discussion of those provisions of
19 the act in our submittal.
20
MS. FRANZETTI: Did the Agency
21 consider Section 303 G in promulgating the proposed
22 thermal water quality standards?
23
MR. TWAIT: I'm not sure that I can
24 answer that.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: Okay. Why? Why not?
2
MR. TWAIT: I think that might
3 possibly be a -- it's a question that I'm not
4 familiar with. However, Chris Yoder may be more
5 familiar with it, and he may have an answer as to
6 what he considered for his temperature report.
7
MS. FRANZETTI: Okay. I understand
8 that. With that caveat, and as we all know
9 Mr. Yoder couldn't be here today. But, Mr. Twait,
10 can I ask you in terms of the internal Agency review
11 and deliberation to come up with the proposed
12 thermal water quality standards that have been filed
13 with the Board. I understand they are based to some
14 extent on Mr. Yoder's work, but in anything that the
15 Agency did to review those standards or to modify
16 whatever recommendations Mr. Yoder can give to you,
17 did you go back to Section 303 G and consider
18 whether or not what you were proposing to the Board
19 was, quote "consistent with the requirements of
20 Section 316 of this act."
21
MR. TWAIT: Not that I am aware of.
22
MS. FRANZETTI: Similarly, Section 316
23 speaks to assuring a balanced indigenous population
24 of fish, as well as shellfish and wildlife. Did the
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1 Agency -- in deriving the thermal water quality
2 standards it has proposed here, did it attempt to
3 protect a balanced indigenous population of fish?
4
MR. TWAIT: I believe the
5 representative of aquatic species that we used did
6 attempt that.
7
MS. FRANZETTI: So that your list of
8 representative aquatic species used for the
9 respective aquatic life used designations, because
10 they vary depending on the proposed use; correct,
11 Mr. Twait?
12
MR. TWAIT: Yes.
13
MS. FRANZETTI: So what you're telling
14 us, then, is that you believe that your RAS lists
15 for each proposed use represents a balance
16 indigenous population?
17
MR. TWAIT: I -- this is specifically
18 for thermal, and I think my answer should have been
19 specifically for the Upper Dresden Pool did we have
20 a balanced aquatic life goal.
21
MS. FRANZETTI: Okay. So only for the
22 Upper Dresden Pool did you believe by using your
23 representative aquatic species list that you were
24 trying to protect the balance indigenous population
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1 of fish, correct?
2
MR. TWAIT: I believe that's correct.
3
MS. FRANZETTI: You didn't do that
4 with respect to the proposed thermal standards for
5 the Chicago Sanitary and Ship Canal. Is that
6 correct?
7
MR. TWAIT: For the Chicago Sanitary
8 and Ship Canal, we developed a standard based on the
9 RAS species there, and that use fell short of the
10 Clean Water Act goals of having a balanced
11 indigenous aquatic life goal.
12
MS. FRANZETTI: Oh, okay. I'm sorry.
13 I wasn't making that connection. So if I understand
14 correctly, proposed -- and not to keep this
15 theoretical, but the Chicago Sanitary and Ship Canal
16 -- am I right that the proposed aquatic life use is
17 B, correct?
18
MR. TWAIT: Yes.
19
MR. SULSKI: Yes.
20
MS. FRANZETTI: Okay. I think I'm
21 right. You're scaring me.
22
MR. SMOGOR: It's A or B, one of
23 those.
24
MR. TWAIT: It's B.
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1
MS. FRANZETTI: I think for the
2 purposes, I'm concerned with, it's B, and with
3 respect to proposed aquatic life use B, what you're
4 saying is that use does not meet the Clean Water Act
5 goals, and therefore there's not a requirement under
6 the Clean Water Act to maintain a balanced
7 indigenous population; correct?
8
MR. SMOGOR: Yes.
9
MR. TWAIT: Yes.
10
MS. FRANZETTI: Okay. And basically
11 the Agency found that a balanced indigenous
12 population of fish cannot exist in those portions of
13 the Chicago Sanitary and Ship Canal, for which you
14 have proposed aquatic life B.
15
MR. SMOGOR: We judged that it cannot
16 be attained in the foreseeable future.
17
MS. FRANZETTI: Okay. Okay. I was
18 just checking to make sure I wasn't repeating
19 questions, but I'm not. Number two. On Pages 5 to
20 66 the Statement of Reasons, the Illinois EPA sites
21 U.S. EPA's regulatory requirements for conducting
22 use attainability analysis to evaluate potential
23 changes in designated uses, specifically 40 CFR
24 Section 131.10 G, what we've been referring to as
L.A. REPORTING (312) 419-9292
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1 the UAA factors regulation.
2
My question is: Is it correct
3 that this is the first UAA for any Illinois water
4 body in which the Illinois EPA has applied and used
5 the UAA regulation?
6
MR. TWAIT: This is the form -- this
7 is the first formal UAA that we've done. We've had
8 similar processes to our disinfection exemption
9 program and to use assessments, but this is the
10 first formal use attainability analysis.
11
MS. WILLIAMS: You know what --
12
MS. FRANZETTI: Hmm?
13
MS. WILLIAMS: Go ahead.
14
MS. FRANZETTI: I'm sorry, Counsel?
15
MS. WILLIAMS: I just want to clarify.
16 I mean, I think there's a sort of a slight
17 misstatement in the question that I want to clarify.
18 Can we clarify it maybe as well? It says that we
19 site U.S. EPA's requirements for conducting
20 attainability analysis --
21
MS. TIPSORD: Deb, they can't hear you
22 at all in the back.
23
MR. SMOGOR: Yeah. I don't believe
24 that conducting a use attainability analysis is a
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1 requirement of the Clean Water Act.
2
MS. FRANZETTI: Oh, I agree. And
3 the question isn't intended to say that --
4
MR. SMOGOR: Okay.
5
MS. FRANZETTI: -- but when you do
6 conduct one --
7
MR. SMOGOR: Mm-hmm.
8
MS. FRANZETTI: -- there are
9 requirements in the regulations that you must
10 follow, correct?
11
MR. SMOGOR: As far as I know, how to
12 do a UAA is still U.S. EPA guidance. So if you're
13 saying -- if someone is performing a UAA, I don't
14 think that strictly they're under any kind of
15 regulatory -- any kind of regulations on how to do
16 that.
17
MS. FRANZETTI: Okay. I understand
18 what you're saying.
19
MR. SMOGOR: So maybe I'm
20 misunderstanding.
21
MS. FRANZETTI: I think you're
22 starting to answer the next question --
23
MR. SMOGOR: Okay.
24
MS. FRANZETTI: -- and that's fine.
L.A. REPORTING (312) 419-9292
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1 For purposes of clarification, though, the
2 regulation does prescribe six factors that would --
3 that form the parameters that when you're doing a
4 UAA, you are limited to those six factors if you are
5 not going to propose a full fishable/swimmable use
6 designation; correct?
7
MR. SMOGOR: Those are -- any one of
8 those six factors, at least one is required to
9 propose something short of the Clean Water Act
10 aquatic life goal and recreational goal.
11
MS. FRANZETTI: And with respect to --
12 understanding this is the first time, with respect
13 to the application of those six UAA factors, and
14 this is Question B, is there any published federal
15 guidance on the way in which to apply those six
16 factors that Illinois EPA tried to follow here or
17 otherwise received in formal guidance from U.S. EPA
18 that you can identify for us? Because I do agree
19 that I there isn't a lot out there, but that's why
20 I'm asking the question is what guidance did you --
21 if any, did the Agency rely on in conducting the
22 UAAs here?
23
MR. SULSKI: It's cited in the
24 contractors reports. There are documents and
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1 guidances that -- guidances for pursuing the
2 process, going through the process.
3
MS. TIPSORD: Okay. Now we're using
4 contractors reports.
5
MR. SULSKI: Okay.
6
MS. TIPSORD: We have to -- please.
7 We have to be consistent.
8
MR. SULSKI: Yes.
9
MS. TIPSORD: If you're talking about
10 the use and attainability --
11
MR. SULSKI: Yes. CDM and Novotany
12 contain citations for that sort of guidance, whether
13 --
14
MS. DIERS: Attachment A and B.
15
MS. TIPSORD: Thank you.
16
MR. SULSKI: Attachment A and B.
17
MS. TIPSORD: Thank you. Because we
18 -- we keep referring to them as different things.
19
MR. SULSKI: Sorry.
20
MS. FRANZETTI: Mr. Sulski --
21
MR. SULSKI: Yes.
22
MS. FRANZETTI: -- I just need some
23 clarification. That made -- that tells me the
24 consultants looked at this -- looked at whatever
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1 those documents are to some extent. Did the Agency,
2 separate and independent from whatever a consultant
3 may have done, and what is reference in their
4 report, did they receive any guidance from U.S. EPA
5 or look at any published U.S. EPA guidance?
6
MR. SULSKI: I, personally, looked at
7 some of the documents that the CDM contractor
8 utilized and ran through them to learn more about
9 the process and to oversee the contract.
10
MS. FRANZETTI: Any informal guidance,
11 any discussions with representatives of U.S. EPA
12 with respect to how to perform this UAA and apply
13 the six factors?
14
MR. SULSKI: Not that I can recall.
15
MS. FRANZETTI: Moving on to C,
16 applicable Board regulations and regulatory history.
17 On Pages 10 to 11 on the Statement of Reasons, it's
18 noted that, quote, "In it's opinion in R72-4, the
19 Board stated that --" another quote "-- the basis
20 for the Board's decision to use the I 55 bridge as a
21 boundary for the division of the Des Plaines river
22 into restrictive and general use, is that the
23 location of the bridge corresponds to changes in the
24 physical environment characteristics of the area.
L.A. REPORTING (312) 419-9292
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1 Citation R 72-4 slip opinion at 5, November 8,
2 1973," end quote.
3
My question is: Does the Illinois
4 EPA agree that the location of the I-55 bridge still
5 corresponds today to the changes and the physical
6 environmental characteristics of the area?
7
MR. TWAIT: The Agency didn't try to
8 clarify that distinction.
9
MS. FRANZETTI: Mr. Twait, I'm not
10 sure what that means. Does that mean you don't know
11 whether --
12
MR. TWAIT: Well --
13
MS. FRANZETTI: -- it still
14 corresponds today to where the physical environment
15 changes?
16
MR. TWAIT: Yes. I would say that I
17 don't know. We haven't tried to address that. The
18 Agency did not reassess the appropriateness of the
19 I-55 bridge as the boundary. The UAAs were
20 evaluated for the secondary contact waters, which by
21 default is the I-55 bridge as their ending point.
22 The Agency did not reassess whether or not the I 55
23 bridge changed the characteristics of the stream
24 or --
L.A. REPORTING (312) 419-9292
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1
MR. SULSKI: Began the changes.
2
MR. TWAIT: Yes.
3
MS. FRANZETTI: Okay. So in other
4 words, the Agency accepted for purposes of the Lower
5 Des Plaines UAA portion of this rulemaking that
6 I-55, given it was the southern boundary the
7 secondary contact existing use designation, that it
8 would simply remain the southern boundary for
9 purposes of this Lower Des Plaines UAA; correct?
10
MR. TWAIT: Yes.
11
MS. FRANZETTI: Without regard to
12 whether that's appropriate or not appropriate?
13
MR. TWAIT: Correct.
14
MS. FRANZETTI: With respect to the
15 next topic, D, history of thermal demonstrations and
16 thermal adjusted standards in the Chicago Area
17 Waterway Systems and Lower Des Plaines River.
18
Question 1: On Pages 13-14 of the
19 Statement of Reasons, the Illinois EPA describes the
20 1996 adjusted standard from the General Use thermal
21 water quality standards, granted the Commonwealth
22 Edison in AS 96-10, which is applicable at the I-55
23 bridge on the Lower Des Plaines River, and later on
24 March 16th, 2000, was transferred to Midwest
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1 Generation.
2
With respect to this adjusted
3 standard, please respond to the following questions:
4 A, does the Illinois EPA agree that in the AS 96-10
5 Board decision, the Illinois EPA and the Board found
6 that Commonwealth Edison, hereinafter Com Ed,
7 Midwest Generation's predecessor, had successfully
8 demonstrated that the heat discharges from the
9 Joliet station did not cause, nor could reasonably
10 expected to -- be expected to cause significant
11 ecological damages to the waters of the five-mile
12 stretch, which is the Lower Des Plaines, below I-55.
13 Does the Agency agree that that was the Board's
14 decision?
15
MR. ETTINGER: We're asking the Agency
16 whether it can read the Board decision?
17
MS. FRANZETTI: I am.
18
MS. WILLIAMS: I think that the
19 standard that you're citing to cause significant
20 ecological damage --
21
MS. FRANZETTI: Did not cause.
22
MS. WILLIAMS: Or to not cause,
23 whatever. The standard of whether or not it caused
24 significant ecological damage, as to my recollection
L.A. REPORTING (312) 419-9292
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1 that's the standard the Board considers in the
2 heated effluent demonstrations that were prior to
3 the '96 hearing as opposed to the --
4
MS. TIPSORD: You're going to have to
5 speak up.
6
MS. WILLIAMS: Okay.
7
MS. TIPSORD: You're speaking to them
8 out there, not to Ms. Franzetti.
9
MS. WILLIAMS: It's my understanding
10 that the standard significant ecological damage is
11 the standard that the Board considers in the heated
12 effluent demonstration, as opposed to the factors
13 laid out in Section 28 of the act for an adjusted
14 standard. So I'm not sure --
15
MS. FRANZETTI: So --
16
MS. WILLIAMS: -- that we can answer
17 that question.
18
MS. FRANZETTI: -- you disagree that
19 the Board decision included that finding? I'm
20 trying to -- I'm trying to make sure -- because,
21 obviously, I am going to be relying to some extent
22 on the findings in that prior decision since they
23 apply to this waterway, and I would like to know
24 whether the Agency agrees with me in interpreting
L.A. REPORTING (312) 419-9292
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1 what the Board found in that proceeding.
2
MS. WILLIAMS: I don't think we
3 disagree that that's what the Board found. Is that
4 the question?
5
MS. FRANZETTI: Okay. So with that --
6 with that foundation -- but the next question is:
7 If so, please explain whether the Illinois EPA's
8 position regarding the lack of significant adverse
9 and ecological impact from the Midwest Gen Joliet
10 station has changed, and if so, explain the reasons
11 for its change in position.
12
MR. TWAIT: The adjusted standard was
13 for below I 55, and that's where the Board decided
14 that it did not cause significant ecological damage.
15 Our proposal is for the area above I 55.
16
MS. FRANZETTI: So, Mr. Twait, you do
17 not think any aspect of that adjusted standard, in
18 terms of what it allowed Midwest Gen to discharge
19 from its plans, had any applicability to the area
20 between where it discharged it and downstream at the
21 I-55 bridge?
22
MR. TWAIT: I was not part of the
23 rulemaking back at that point, but I do not believe
24 that the Agency looked at ecological damage. It
L.A. REPORTING (312) 419-9292
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1 looked at whether or not the water quality standard
2 was being achieved. We did not look at whether the
3 water quality standard was appropriate during that
4 -- the secondary contact water quality standard was
5 appropriate during that rulemaking.
6
MS. FRANZETTI: Moving on to B, the
7 Statement of Reasons refers to Appendix A at 2-84
8 for a description of the basis for the adjusted
9 standard, and Appendix A at 2-84 states that, quote,
10 "The Illinois EPA agreed that heat was not a factor
11 limiting the quality of the aquatic habitat of the
12 five mile stretch. Does the Agency -- does Illinois
13 EPA agree that in the AS 96-10 proceeding the
14 Illinois EPA agreed and the Board concurred that the
15 temperature of the waters of the five-mile stretch
16 was not a factor limiting its quality, and that
17 other factors continued to override the effect of
18 temperature in the waterway, such as loss of habitat
19 due to channelization, disruption of habitat due to
20 barge traffic, and the presence of heavy metals and
21 other pollutants in the system."
22
MR. TWAIT: As it applies to the
23 stream -- downstream of the I-55 bridge, I think
24 that's correct. But the Agency's proposal does not
L.A. REPORTING (312) 419-9292
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1 address below the I-55 bridge.
2
MS. FRANZETTI: And those are the
3 waters of the five-mile stretch you're referring to,
4 Mr. Twait, correct?
5
MR. TWAIT: Downstream of I-55, yes.
6
MS. FRANZETTI: Yes.
7
MS. TIPSORD: Point of clarification.
8 You said Appendix A. You mean Attachment A?
9
MS. FRANZETTI: I think it referred to
10 Appendix A. Let me just check. Oh, no. You're
11 absolutely right. It's a typo. Attachment A.
12 Sorry.
13
MS. TIPSORD: Just double checking.
14
MS. FRANZETTI: We'll get our
15 attachments and appendix correct one of these days.
16 Moving on to the next question, is it now the
17 Illinois EPA's position that these factors have
18 changed favorably, such that temperature has now
19 become a limiting factor to improvements of the
20 biological community of the waterway, and if so,
21 please explain the factual basis for the change in
22 the Illinois EPA's position.
23
MR. ETTINGER: You're talking about
24 the area below the I-55 --
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: The five-mile stretch.
2 If it hasn't -- if the Agency's position hasn't
3 changed, that's fine.
4
MR. SULSKI: We didn't evaluate that
5 five-mile stretch in these UAA's.
6
MS. FRANZETTI: So the Agency hasn't
7 changed its position with respect to the five-mile
8 stretch?
9
MR. SULSKI: Well, I just have one --
10 I don't mean to answer a question with a question,
11 but in B at the end, you talk about other factors
12 that override temperature, including loss of habitat
13 and disruption of habitat and that sort of thing,
14 heavy metals, et cetera, et cetera. I didn't read
15 the adjusted standard word for word. Is this a
16 citation? Are these words out of that --
17
MS. FRANZETTI: These are factors that
18 were cited in the adjusted standard opinion.
19
MR. SULSKI: Okay. The -- again, the
20 response is that we didn't evaluate below I-55. We
21 evaluated the secondary contact portion of the
22 waterway above I-55.
23
MS. WILLIAMS: Can I ask a redirect
24 question at this point?
L.A. REPORTING (312) 419-9292
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1
MS. TIPSORD: Sure.
2
MS. WILLIAMS: Mr. Sulski, did the
3 Agency have an opinion on whether temperature is now
4 an eliminating factor for the aquatic life in the
5 area that you did study?
6
MR. SULSKI: Yes, we did.
7
MS. WILLIAMS: Do you have an opinion,
8 or --
9
MR. SULSKI: Do I have an opinion on
10 whether it is a factor?
11
MS. WILLIAMS: Right.
12
MR. SULSKI: My -- yes, I have an
13 opinion. My opinion is, yes, it is a factor in
14 effecting the aquatic life in the area that we've
15 studied.
16
MS. FRANZETTI: What is that opinion
17 based on, Mr. Sulski?
18
MR. SULSKI: It's based on -- all I
19 have is a part of that, and Scott will help me
20 answer other parts.
21
MS. FRANZETTI: Okay. Answer the part
22 you can.
23
MR. SULSKI: In terms of habitat and
24 what we believe the potential is, we determined that
L.A. REPORTING (312) 419-9292
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1 that stretch above I 55 of the Upper Dresden Island
2 Pool can sustain and has the potential of meeting
3 Clean Water Act goals for aquatic life. It's based
4 on the data that's in the reports, the habitat data,
5 et cetera.
6
With that, we looked at -- we had
7 a set criteria to protect those uses, and when you
8 compare the criteria that we believe are needed to
9 protect those uses compare to secondary contract
10 criteria or the criteria that apply, it is our
11 feeling that the temperature levels are affecting
12 and preventing that waterway as a factor from
13 obtaining Clean Water Act goal potential.
14
MS. FRANZETTI: All right. If I
15 understand your answer correctly, because you came
16 up with numbers for a thermal water quality standard
17 that are lower than the ambient temperatures out
18 there, you conclude the temperature is an inhibiting
19 factor out there?
20
MR. SULSKI: That determination was
21 made even before we came up with more restrictive
22 standards. That -- that determination.
23
MS. FRANZETTI: That's what I'm asking
24 you. What's the basis for your position? The
L.A. REPORTING (312) 419-9292
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1 temperature is an inhibiting factor out there. What
2 are you referring to now by saying it's things that
3 you saw or heard before you came up with your
4 proposed thermal water quality standards?
5
MR. TWAIT: Yes. In Attachment A of
6 the Aqua Nova report, they stated in there that the
7 secondary contact standards were lethal to fish, and
8 we believe that was further corroborated by Chris
9 Yoder's studies.
10
MS. FRANZETTI: So it is the Agency's
11 position that the ambient thermal's temperatures in
12 the Upper Dresden Pool today are lethal to the fish?
13
MR. TWAIT: The -- the ambient
14 temperatures are probably lethal to some fish.
15
MS. FRANZETTI: Do you have any data
16 of fish dying out there due to the ambient thermal
17 temperatures?
18
MR. TWAIT: No, because fish have the
19 ability to avoid warm water when they -- when they
20 detect it.
21
MS. FRANZETTI: So based on the fish
22 behavior called "avoidance," the temperatures aren't
23 -- the temperatures aren't lethal out in the Upper
24 Dresden Pool?
L.A. REPORTING (312) 419-9292
133
1
MR. TWAIT: Okay. I think I'll just
2 refer back to Novotany's report, the Aqua Nova
3 report that said -- Attachment A, that the secondary
4 contact water quality standard was lethal to fish.
5
MS. FRANZETTI: Then, for the record,
6 I would request that Mr. Novotany be brought to one
7 of the future hearings, so that he can tell me what
8 the basis is for the -- for the speculation that the
9 temperatures out there are lethal to fish, when none
10 of us are finding any fish kills going on out there.
11
MS. WILLIAMS: I think we can get into
12 this question sufficiently with Mr. Yoder at the end
13 of the week.
14
MS. FRANZETTI: Well, I don't think I
15 found that conclusion in Mr. Yoder's report, but if
16 you want to prepare him to try and defend
17 Mr. Novotany's findings --
18
MS. WILLIAMS: I think it's in his
19 testimony, so I think we can talk about it.
20
MS. TIPSORD: Mr. Fort, you have a
21 followup?
22
MS. TIPSORD: If I may. Jeffrey Fort
23 for Citgo. Is your testimony there about lethality
24 or lethalness of temperatures, looking at the
L.A. REPORTING (312) 419-9292
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1 requirements in your period average also, that
2 essentially says that things have to be colder than
3 they are otherwise? You know, have to be below 58
4 degrees Farenheit or something like that? That
5 that's something that the fish are -- is also lethal
6 to fish, having warmer water than, say, 62 degrees
7 or so?
8
MR. TWAIT: No.
9
MR. FORT: Okay. You're just focusing
10 on the high end, the kind of -
11
MR. TWAIT: The lethal part was the
12 daily maximum that we proposed.
13
MR. FORT: The upper bound of the
14 temperatures? Warmness, not coldness?
15
MR. TWAIT: Yes.
16
MR. FORT: Okay.
17
MR. SMOGOR: If I may, the fact that
18 some temperatures may be lethal to fish, life stages
19 not even specified here, perhaps lethal to early
20 life stages, does not necessarily mean that you will
21 be able to see fish kills out there regularly. I'd
22 just like to point that out. Not seeing fish kills
23 does not necessarily mean that fish kills of some
24 degree aren't happening out there.
L.A. REPORTING (312) 419-9292
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1
MS. TIPSORD: Mr. Ettinger, you have a
2 followup?
3
MR. ETTINGER: Yeah. I just want to
4 clear up an ambiguity. I think --
5
MS. TIPSORD: Albert, you need to
6 speak up.
7
MR. ETTINGER: I'm sorry. I think
8 there are -- I want to try to clear up an ambiguity
9 I see in the testimony. As I understand in the
10 Novotany report, he speaks about the temperatures
11 that are in the current secondary contact standards.
12 Is that correct?
13
MR. TWAIT: Yes.
14
MR. ETTINGER: Did Mr. Novotany look
15 at the temperatures that are actually present in the
16 Upper Dresden Pool and determine that those
17 temperatures are lethal to fish?
18
MR. TWAIT: I don't know that I can
19 answer that.
20
MR. ETTINGER: Okay. So Mr. Novotany
21 said that the temp -- the standards present now are
22 not appropriate in his view, but he didn't
23 necessarily say that the temperature is being put
24 out or currently occurring are killing fish?
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: I think that would be
2 accurate.
3
MR. ETTINGER: So we don't -- he did
4 not look at what temperatures were actually hit now
5 in the Upper Dresden Pool?
6
MR. TWAIT: There was a misconception
7 that he had about the effluent temperature of
8 Midwest Generation's facilities, which was not
9 accurate, and I believe that he did not look at the
10 temperatures in the river as being lethal. But,
11 yes, I agree that he was addressing the water
12 quality standard that existed.
13
MR. ETTINGER: The fact that it's
14 permitted to go up to a temperature under a standard
15 doesn't force the dischargers to raise it to that
16 temperature, does it?
17
MR. TWAIT: No.
18
MR. ETTINGER: Thank you.
19
MS. FRANZETTI: Mr. Twait, since you
20 mentioned it, would you mind, if you can, expanding
21 upon -- what was the misconception that Mr. Novotany
22 had about the temperature of Midwest Gen's
23 discharges?
24
MR. TWAIT: The misconception that he
L.A. REPORTING (312) 419-9292
137
1 had was based on the DMR reports that Midwest
2 Generation sends to the Agency that would indicate
3 their maximum temperature, and I believe that
4 maximum temperature was taken at the beginning of
5 the discharge canal, and did not take into account
6 any -- any temperature attenuation in the Canal, nor
7 did it take into account any use of the cooling
8 towers.
9
MS. FRANZETTI: Thank you.
10
MR. TWAIT: And so in his report, he
11 was saying that they were violating their permit, I
12 believe, was his wording. That was not correct.
13
MR. ETTINGER: Miss Tipsord?
14
MS. FRANZETTI: Which actually brings
15 up a point. Have those errors in the Lower Des
16 Plaines UAA report Attachment A been corrected such
17 that the one that was filed for the Board to review
18 no longer contains such erroneous statements?
19
MR. TWAIT: I believe that most of the
20 -- most of the -- most of the language has been
21 removed, but I don't think that all of it had been
22 removed, just because it was not all contained in
23 one spot.
24
MR. ETTINGER: Miss Tipsord, may I ask
L.A. REPORTING (312) 419-9292
138
1 a question? Miss Franzetti's asked a lot of
2 questions on a lot of different areas. Should we
3 wait until she's done to follow up on all of that,
4 or should we deal with some of the things that she's
5 already raised now?
6
MS. TIPSORD: Well, I think if you
7 have followup in the flow of her questions, then you
8 should do them now. I think we are getting a little
9 more detailed than we had wanted to here, but some
10 of that has just been a product of the Agency's
11 answers.
12
MR. ETTINGER: If I could go back,
13 then, to one of her general, general, questions
14 regarding the receipt of IEPA from guidance --
15
MS. TIPSORD: Can we finish at this
16 point? I think she had a final -- did you have a
17 final point on the errors in the report?
18
MS. FRANZETTI: Well, I was going to
19 ask the Agency if there was a way that it could
20 consider marking up, whether crossing out, whatever
21 is easiest but effective, on Attachment A anything
22 that, as you've just noted with respect to Midwest
23 Gen, anything else that isn't accurate so that the
24 Board is not mistakenly viewing those portions as,
L.A. REPORTING (312) 419-9292
139
1 in fact, accurate, or statements that the Agency
2 agrees with.
3
MS. WILLIAMS: We -- I believe we
4 attempted in our Statement of Reasons to consider
5 that issue by identifying where we did and did not
6 rely on findings from those reports in making our
7 recommendations to the Board.
8
MS. FRANZETTI: Well --
9
MS. WILLIAMS: I'm not saying we won't
10 consider that, but --
11
MS. FRANZETTI: Counsel, this is a
12 different issue. If that report says that my client
13 -- inaccurately says that my client was discharging
14 in violation of the thermal limits in its NPDS
15 permit, if it mistakenly says that my client's
16 discharges were causing fish kills in lethal
17 temperatures out there, I think that's a pretty
18 important point we ought to get clarified.
19
MS. WILLIAMS: Absolutely. We can
20 come back and comment and clarify that. I was just
21 worried you were asking us to go through each line
22 and clarify every sentence we did or did not
23 completely agree with, and that, I think, is
24 unreasonable. But it's fine --
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: No, no. It's really
2 inaccuracies. I mean, staying with what we were
3 just talking about, if there are any others that
4 weren't taken out in revising that report,
5 Attachment A, that's -- even if it's as simple as
6 just taking a copy of it and crossing them out and
7 filing it as, you know, revised Attachment A.
8 That's what I'm asking the Agency to consider, and I
9 don't need an answer immediately if you need to --
10
MS. WILLIAMS: No, we'll try. I mean,
11 we will do our best try.
12
MS. TIPSORD: Okay. Mr. Ettinger, you
13 had a question, and then you.
14
MR. ETTINGER: Well, I have, kind of,
15 two sets of questions. One had to do with the
16 balanced indigenous life. Do you remember those
17 sets of questions that Miss Franzetti asked, and I
18 was going to ask whether the Agency had looked at
19 the species of fish and other aquatic life that
20 lived in waters, other than the ones under
21 consideration, to see what sort of species you might
22 be expected to find in this water body.
23
MR. TWAIT: I think that would be a
24 question best addressed by Chris Yoder.
L.A. REPORTING (312) 419-9292
141
1
MR. ETTINGER: Okay.
2
MR. TWAIT: I believe he attempted to
3 do that with his RAS species, representative aquatic
4 life species.
5
MR. ETTINGER: Okay. Mrs. Franzetti
6 also asked whether the Illinois Environmental
7 Protection Agency had received any guidance from the
8 United States Environmental Protection Agency or had
9 any meetings with them regarding this. Mr. Sulski
10 said he had not personally received such guidance or
11 had such meetings. Did other members of the
12 Illinois Environmental Protection Agency have
13 meetings with U.S. EPA in which they received
14 guidance or opinions regarding the use attainability
15 analysis?
16
MR. TWAIT: Not that I'm aware of.
17
MS. WILLIAMS: I mean, I think I would
18 say, generally, though that U.S. EPA region five
19 funded for us the contractor reports that are
20 included in Attachment A and B. So I am sure that
21 that Mr. Frevort must have had discussions in
22 developing those scope of work, and what have you,
23 about what would be conducted with the resources
24 they were given us. That's one thing I can think
L.A. REPORTING (312) 419-9292
142
1 of. I wasn't personally involved in, but --
2
MS. TIPSORD: And just to note, for
3 the record, Mr. Frevort refired from the Agency --
4
MS. WILLIAMS: Yes. I don't like to
5 talk about it.
6
MS. TIPSORD: -- at the end of the
7 year, after this proposal applied. Mr. Frevort is
8 no longer available to ask these questions. Mr.
9 Andes, did you have a followup on that?
10
MR. ETTINGER: I'm sorry. I just have
11 one more followup on myself here, and it involves
12 our friend, Mr. Frevort. Do you know whether U.S.
13 EPA sent comments to Mr. Frevort regarding the draft
14 proposal that Illinois Environmental Protection
15 Agency circulated at the beginning of 1990 -- 2007.
16 I'm sorry. I've been on this job too long. 2007.
17
MR. SULSKI: Yes.
18
MR. ETTINGER: Yes. Were you able to
19 review that letter and comment on the draft?
20
MR. SULSKI: Yes.
21
MR. ETTINGER: So you did receive that
22 guidance in form of comments?
23
MR. SULSKI: They were comments on the
24 final report.
L.A. REPORTING (312) 419-9292
143
1
MR. ETTINGER: Did -- well --
2
MR. TWAIT: Yes, I think they were
3 comments on our proposal --
4
MR. SULSKI: Yeah, draft reports. I'm
5 sorry.
6
MR. TWAIT: -- rather than the report.
7
MS. TIPSORD: Are those comments part
8 of the Board's records?
9
MS. WILLIAMS: I don't think so, no.
10 We can make them a part of the record if you like.
11
MR. ETTINGER: I'm not trying to make
12 this a mystery. I have -- I happen to have here a
13 list in my hand of 20 known communists in the state
14 department. No, I have a -- I think the comments,
15 and if it's with the Board's indulgence, could we
16 show this to the Agency witnesses, now and we'll
17 either make them a part of the record now, or wait
18 until we have another authenticating witness.
19
MR. ANDES: Could you identify the
20 date of the document?
21
MR. ETTINGER: Actually, I can't.
22
MS. DIERS: You wanted to know the
23 date of the document?
24
MR. ETTINGER: For one, it's out of my
L.A. REPORTING (312) 419-9292
144
1 hand, and secondly, for some reason my copy is not
2 dated on the top with the letter to Frevort.
3
MS. DIERS: The letter's not dated,
4 but the comment side they have is dated
5 January 18th, 2007.
6
MS. TIPSORD: That's the day of the
7 draft that they reviewed --
8
MS. DIERS: The drafting. And --
9
MS. TIPSORD: Not the date of the
10 document.
11
MR. ETTINGER: So I assume the letter
12 was sent sometime after the date of the draft. Do
13 you have a better draft?
14
MR. ANDES: You know what? I'm not
15 sure mine is the final copy, but I think it's the
16 same thing.
17
MS. TIPSORD: Yes, ma'am. We have
18 someone in the back room?
19
MS. HALLS: Linda Halls from EPA. Do
20 you want -- I mean, we have them --
21
MS. TIPSORD: U.S. EPA? Are you U.S.
22 EPA?
23
MS. HALLS: Yeah U.S. EPA. We can
24 bring our comments. We've sent several.
L.A. REPORTING (312) 419-9292
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1
MS. TIPSORD: Okay. That would be
2 wonderful.
3
MS. DIERS: The one that Albert handed
4 us, we have a letter dated May 3rd, 2000 -- well,
5 it's stamped May 3rd, 2007, and then it has attached
6 and it's dated January 18th, 2007. So -- and they
7 look similar to what I have.
8
MR. ETTINGER: Okay. If you'd like to
9 offer that as an exhibit, then that could end the
10 mystery here.
11
MR. SULSKI: Albert, can I add
12 something to your question?
13
MR. ETTINGER: Yes, please.
14
MR. SULSKI: U.S. EPA attended the
15 stakeholder meetings and provided comments all the
16 way along like everybody did and on the draft
17 reports. So if -- I don't know if you want to
18 construe that as guidance, but they commented on
19 elements of the process.
20
MS. TIPSORD: And I assume you're
21 sending her out to make copies?
22
MS. WILLIAMS: Absolutely. And, you
23 know, while we're talking about this subject,
24 does -- do you guys have -- does U.S. EPA have
L.A. REPORTING (312) 419-9292
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1 copies of the document we discussed this morning
2 available the disinfection --
3
MS. HALLS: Yes.
4
MS. WILLIAMS: -- comments? I'm not
5 100 percent sure we brought those from Springfield.
6 But those --
7
MS. HALLS: Yeah, we have those too.
8
MS. WILLIAMS: -- we could make copies
9 of those also if you could get us one. All right.
10
MS. TIPSORD: Okay. Go ahead, Mr.
11 Andes.
12
MR. ANDES: Well, Albert stole my
13 question.
14
MR. ETTINGER: I'm sorry.
15
MR. ANDES: But I'll follow up with
16 it.
17
MS. TIPSORD: Please do.
18
MR. ANDES: I may have another
19 question. First is -- all right. So if we have
20 that document with draft EPA comments, and it sounds
21 like there may be other EPA documents that were
22 transmitted to Illinois EPA, my next question is:
23 What was transmitted back from Illinois EPA to U.S.
24 EPA are there written documents where -- for
L.A. REPORTING (312) 419-9292
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1 example, with all these pages of concerns raised by
2 U.S. EPA, is there a response from Illinois EPA, and
3 sort of my question that that goes to that is: What
4 basis do you have for believing that all of these
5 issues raised by U.S. EPA have been addressed? It's
6 not in the record anywhere as far as I can tell.
7
MS. WILLIAMS: We attempted to address
8 all of those comments in our final proposal to the
9 Board that was our effort. We have not communicated
10 to them in any other informal way beyond the way we
11 communicated to all the stakeholders that we tried
12 to address our comments in our final proposal.
13
MR. ANDES: So you think that the
14 Statement of Reasons with attachments addresses all
15 of these issues?
16
MS. WILLIAMS: And changes that were
17 made to the regulations between the first draft and
18 what was submitted to the Board as well.
19
MR. ANDES: Okay. My second question
20 was on a different topic to follow up on
21 Ms. Franzetti. I think Mr. Twait said that the
22 Agency has not gone to TNDL to figure out the
23 non-point reductions that might be needed to attain
24 the stamina. My question is, then, how do you know
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1 the standards attainable if you haven't figured out
2 what reductions are needed and how they can be
3 attained?
4
MS. TIPSORD: Excuse me. For point
5 clarification, I believe that question was about the
6 Chicago Sanitary and Ship Canal, isn't that correct?
7 It wasn't for the entire --
8
MS. FRANZETTI: That's right. It was
9 at least the Chicago Sanitary and Ship Canal. I
10 think also might have been Upper Dresden Pool. I
11 believe both.
12
MR. TWAIT: I think -- I think one of
13 the things there is --
14
MS. WILLIAMS: Could you repeat the
15 question?
16
MR. SULSKI: Yeah, please.
17
MR. ANDES: If the Agency has not gone
18 to TNDL to figure out the non-point reductions that
19 would be needed to obtain the standard, how does the
20 Agency know or believe that the standard is
21 attainable?
22
MR. SULSKI: Well, it's -- the TMDL is
23 a different process. When we did the water quality
24 evaluation portions of these use attainability
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1 analysis, we compared all the data that we had with
2 what -- with general use standards. That was sort
3 of what was -- what was the comparison point, and we
4 found that the water quality met general use
5 standards in almost all regards, except for a few
6 parameters, which are in the report, temperature --
7
MR. TWAIT: D.O.
8
MR. SULSKI: -- D.O. bacteria, and
9 then we looked at sources of those, and we found
10 that the source of those were dominated, extremely
11 dominated, by a few entities, CSOs, wastewater
12 treatment plants, power plant discharges, and we
13 didn't find reason to have to delve into the
14 non-point issue because we believed that, for the
15 most part, it would be addressed in dealing with
16 these other sources, and that because they dominated
17 the system so much that the small north fork, west
18 fork, and east fork of the north branch, I mean,
19 there were little trickles coming into this system.
20 There were little trickles coming into the system
21 relative to all the other, and we found that these
22 other -- these major sources were really the ones
23 that were causing situations that wouldn't allow us
24 to meet our designated uses. So that's what was --
L.A. REPORTING (312) 419-9292
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1 that's what the contractors concentrated on.
2
MR. ANDES: So then -- and not -- and
3 I think you said "general use," but I think you're
4 talking about your proposed uses, right?
5
MR. SULSKI: Yes.
6
MR. ANDES: So the Agency believes
7 that.
8
MR. TWAIT: No -- I want to clarify
9 that.
10
MR. ANDES: Okay.
11
MR. TWAIT: The contractors looked at
12 whether or not the standards were meeting general
13 use, and they were -- yes. The -- whether the
14 streams were meeting general use water quality
15 standards. Our proposal is using the most current
16 water quality standards. In some cases, those are
17 more stringent than general use. So I just wanted
18 to make that clarification.
19
MR. ANDES: So the conclusion -- the
20 conclusion is that controlling those sources would
21 get to general use is separate and apart from
22 whether fulfilling those uses will obtain the
23 proposed uses, right?
24
MR. TWAIT: Yes.
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1
MR. ANDES: Two different issues?
2
MR. SULSKI: Yes.
3
MR. ANDES: Okay. Thank you.
4
MR. ETTINGER: Sorry. Just to
5 clarify, the Upper Des Plaines Pool now is generally
6 meeting general use standards. Is that fair to say?
7
MR. TWAIT: For most topic parameters,
8 the answer is yes.
9
MR. ETTINGER: And for what is the
10 Upper Des Plaines Pool sometimes violating?
11
MR. SMOGOR: Are you referring to the
12 Upper Dresden Isle?
13
MR. ETTINGER: I'm sorry. Upper
14 Dresden Pool. I'm sorry. Upper Dresden Pool.
15
MR. TWAIT: I think its temperature --
16
MR. SULSKI: Dissolved oxygen --
17
MR. TWAIT: -- and dissolved oxygen.
18
MR. SULSKI: -- are the primary
19 parameters.
20
MS. TIPSORD: Mr. Harley?
21
MR. HARLEY: Just to clarify,
22 Ms. Franzetti, in reporting one of your questions,
23 you --
24
MS. FRANZETTI: Am I on trial?
L.A. REPORTING (312) 419-9292
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1
MR. HARLEY: There was a phrase you
2 used that said "none of us" have observed a fish
3 kill, and I'm curious who "us" is within that
4 question.
5
MS. FRANZETTI: Well, it's me and
6 everybody else I know. I guess I've seen no
7 recorded evidence of it, Mr. Hurley.
8
MR. HURLEY: All right. Well, have
9 you been sworn as a a witness, Ms. Franzetti?
10
MS. FRANZETTI: No, but you just asked
11 me a question. Would you rather me tell you I'm not
12 going to answer it?
13
MR. HARLEY: I just want to make sure,
14 just as you were, that the Illinois EPA's record be
15 absolutely correct in terms of the work we can
16 assert and not assert. I think it's equally
17 important to you and the attorneys serving you can
18 not assert, and for you to assert that none of us
19 have seen a fish kill and to insert that into the
20 record is inappropriate.
21
MS. FRANZETTI: Mr. Harley, I
22 respectfully disagree, but you have your right to
23 your opinion.
24
MS. TIPSORD: I think that --
L.A. REPORTING (312) 419-9292
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1 remember, this is a rulemaking, and the Board is
2 quite capable of understanding that Miss Franzetti
3 was not asserting a fact that's not in the record.
4 I think we're ready to proceed to your next
5 question.
6
MS. FRANZETTI: I believe I was on
7 subpart C.
8
MS. TIPSORD: That's where I have you.
9
MS. FRANZETTI: Okay. Good. Appendix
10 A.
11
MS. DIERS: I just want to interrupt
12 for a second. You mean Attachment A.
13
MS. FRANZETTI: Attachment A. I have
14 a feeling that's going to be a perennial problem for
15 me. Attachment A at 2-84 further states that quote,
16 "The Board noted that the Agency, IEPA, concluded
17 that as long as the Joliet station meets all the
18 applicable standards at the point of discharge and
19 in the downstream general use waters, the Agency did
20 not view the Joliet station's thermal discharges as
21 limiting aquatic diversity in the receiving waters."
22
It goes on to note that Midwest
23 Generation's predecessor, Commonwealth Edison, then
24 undertook a multi-year study of the effect of heated
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1 effluents on the receiving stream, which was
2 conducted by a reputable team of scientists from
3 three universities and Edison ecological
4 consultants.
5
Does the Illinois EPA agree with
6 the Board's past findings, which were based on
7 extensive study, that temperature is not a factor
8 limiting aquatic diversity in the five-mile stretch
9 downstream from the I-55 bridge?
10
MR. TWAIT: No.
11
MS. FRANZETTI: Please state the basis
12 for your answer.
13
MR. TWAIT: Yeah. We did not evaluate
14 the five-mile stretch downstream from the I-55
15 bridge.
16
MS. FRANZETTI: So you neither agree
17 nor disagree?
18
MR. TWAIT: That would be a better
19 answer. I neither agree nor disagree.
20
MS. FRANZETTI: Pursuant to the terms
21 of the adjusted standard granted by the Board in AS
22 96-10, Commonwealth Edison, and since 2000, Midwest
23 Generation, have conducted annual stream surveys on
24 the Lower Des Plains River, and submitted the
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1 results of those surveys to the Illinois EPA.
2
Does the Illinois EPA agree that
3 the results of those ongoing annual surveys of the
4 fish community in the waterways adjacent to the five
5 Midwest Gen electrical generating stations have
6 shown that the thermal discharges from the five
7 Midwest Gen electrical stations have not adversely
8 effected the maintenance of a balanced indigenous
9 aquatic population in the area at and downstream of
10 the I-55 bridge?
11
MS. WILLIAMS: This is where I feel
12 like I'm confused about what you're asking us is the
13 Board's finding, because earlier you had said the
14 finding has caused significant ecological damage,
15 and now we're saying "adversely affected" the
16 maintenance.
17
MS. FRANZETTI: It's a different --
18
MS. WILLIAMS: It's a different --
19
MS. FRANZETTI: It's a different
20 point.
21
MS. WILLIAMS: Okay.
22
MS. FRANZETTI: This is based on all
23 these years of annual surveys that have been
24 conducted on the fish community out in the subject
L.A. REPORTING (312) 419-9292
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1 waterway, and with respect to those surveys, which I
2 think you agree they've been submitted to the Agency
3 every year, asks does the Agency agree that the
4 result of those annual fish surveys have shown that
5 the thermal discharges of Midwest Gen have not
6 adversely effected the maintenance of a balanced
7 indigenous population in the area at and downstream
8 of the I-55 bridge. I mean, we've given you those
9 surveys every year. I'm really asking have you read
10 them and what do you think.
11
MR. TWAIT: I've -- I've seen them,
12 although I haven't read them to the point that I can
13 actually answer this question at this time.
14
MS. FRANZETTI: Has anyone at the
15 Agency read them and could answer the question?
16
MR. SULSKI: I don't know whether
17 anybody has. That is not the section that we
18 evaluated in these UAAs, so I didn't evaluate, you
19 know, I didn't read them.
20
MS. FRANZETTI: Okay. So I think I
21 know the answer to my next question. Does the
22 Agency agree that the results of those annual fish
23 studies have shown that the aquatic community has
24 shown some improvement over the time since the
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1 alternate standards have gone into effect? They
2 don't -- you don't know the answer to that?
3
MR. TWAIT: I would not know the
4 answer to that.
5
MS. FRANZETTI: And on the other hand,
6 you don't disagree, because again, you haven't
7 reviewed the fish studies. The answer is yes?
8
MR. TWAIT: Yes.
9
MS. FRANZETTI: Do you --
10
MR. ETTINGER: May I request that you
11 send us the fish studies? We promise to read them.
12
MS. FRANZETTI: You're going to have a
13 lot of catch up to do, Albert. It's years and years
14 of stuff.
15
MR. ETTINGER: I've looked at the old
16 ones. There's a lot of numbers and not much text.
17
MS. FRANZETTI: And recognizing that
18 you haven't, for this proceeding, reviewed the
19 five-mile stretch immediately downstream of Upper
20 Dresden Pool, but do you know in what way and to
21 what extent, if any, does the aquatic community in
22 the five-mile stretch differ from the community in
23 the Upper Dresden Island Pool? Now if we're trying
24 to compare what's going on in the five-mile stretch
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1 immediately downstream of Upper Dresden Pool versus
2 Dresden Pool, with respect to the fish community,
3 can you tell us is there much of any difference?
4
MR. SMOGOR: We don't really know,
5 because we really didn't address what was going on
6 in the five-mile stretch.
7
MS. FRANZETTI: If you can give me a
8 moment, I want to -- I want to start reviewing the
9 questions, because maybe --
10
MS. TIPSORD: Okay. You know, we've
11 been at it for about an hour and 25 minutes.
12
MS. FRANZETTI: Oh great. Thank you.
13
MS. TIPSORD: With that, then, let's
14 take about a ten minute break. Okay.
15
(Whereupon, a break was taken,
16
after which the following
17
proceedings were had.)
18
MS. TIPSORD: While we were at break,
19 the Agency got copies of the U.S. EPA comments.
20 Correct?
21
MS. DIERS: Correct. At this time we
22 would like to enter in, I believe it will be
23 Exhibit 4, the letter that Albert had referred to
24 earlier as stated May 3rd, 2007, from U.S. EPA
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1 region on five to the Illinois EPA to Toby Frevort,
2 and attached to that letter is region five comments
3 on Illinois EPA draft rules dated January 18th,
4 2007. And we did put some copies back there on a
5 table. I don't know if they're gone now or not, but
6 if you need some let us know. We can make more.
7
MS. TIPSORD: If there's no objection,
8 we'll mark this as Exhibit 4. Seeing none, it's
9 Exhibit 4, and I think we're ready, then, to
10 continue with Mrs. Franzetti.
11
MS. FRANZETTI: Thank you. Continuing
12 with question roman one, capital D, one F. In the
13 AS 96-10 Board decision regarding the issue of --
14 I'm sorry. Let me start again. In the AS 96-10
15 Board decision regarding the issue of environmental
16 impact, the Board found that quote, "The upstream
17 reach of the south branch of the Chicago River, the
18 Chicago Sanitary and Ship Canal, and the Des Plaines
19 River, is greatly modified by use of a shipping
20 channel with habitat limited to deep pools without
21 swallows, structure, ripples --" I think "of" is an
22 "or" "-- or suitable substrate," end quote, and
23 further found quote, "The waterways are very
24 artificial and significantly modified waterway that
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1 is limited in terms of habitat," end quote.
2
Is the Illinois EPA's position
3 that this habitat described in the AS-91-10 decision
4 has changed, and if so, describe the stream survey
5 data on which your position is based.
6
MR. SMOGER: Not knowing -- not
7 knowing the details of the habitat back at that
8 time, during the AS 96-10, we really don't know if
9 it's different from back then.
10
MS. FRANZETTI: Do you know of any
11 reason that the habitat would've changed since 1996?
12
MR. SMOGOR: Not -- not off the top of
13 my head.
14
MS. FRANZETTI: Okay.
15
MR. SMOGOR: I know that
16 interpretations of what the habitat was could
17 change, depending on what was looked at back then
18 and what was looked at since then.
19
MS. FRANZETTI: Moving on to G, in the
20 AS 96-10 Board decision, the Board found that the
21 area effected by the proposed (I 55 adjusted
22 standard) is heavily developed with industries,
23 including a refinery, a chemical plant, and a boat
24 yard.
L.A. REPORTING (312) 419-9292
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1
Is it the Illinois EPA's position
2 that these characteristics of the Upper Dresden Pool
3 has changed, and if so, describe the data on which
4 that position is based.
5
MR. SULSKI: No.
6
MS. FRANZETTI: Moving on to H, in the
7 AS 96-10 Board decision, the Board found that quote,
8 "Historical practices have caused substantial
9 residual chemical contaminations to be present in
10 the sediments of waterway," end quote. Is it the
11 Illinois EPA's position that this condition has
12 changed, and if so, describe the data on which this
13 position is based.
14
MR. SULSKI: We believe that the
15 sediments are improving.
16
MS. FRANZETTI: Based on what data?
17
MR. SULSKI: It's not based on data,
18 it's based on an explanation that I'd like to give
19 you right now. Okay.
20
MS. FRANZETTI: Sure.
21
MR. SULSKI: And as certain experts
22 know, it's difficult to evaluate, actually, the
23 impacts of sediment. It's been a struggle for many
24 years for standards, people, and everybody.
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1 However, in terms of CAWS and the Lower Des Plaines
2 in these waterways, we know that over a period of
3 time, there's been less of a volume of sediments
4 discharged to these waterways, because the tunnel
5 sections have come on line, and we have actual
6 measurements of the volumes that have been captured
7 by the tunnel. So we know that there's less volume
8 of sediment going into the system.
9
We also know that over time, the
10 MWRDCGC has had a pretreatment program directed at
11 indirect discharges, which discharge into the
12 sewers, and they have tightened up on the levels of
13 contaminants that go into the sewers, and that would
14 then overflow out the CSO points, or in the old days
15 would flow through the plants. So we know that the
16 -- not only the volume has reduced over time, but
17 with the advent of pretreatment and the continuation
18 of that program, the quality has improved over time.
19
We also know that as time wears
20 on, just like any stream, there's in situ treatment
21 that goes on in terms of sediments. As sediments
22 get churned, and they get removed from the lower
23 levels or get churned around, they get into the
24 water column. They have -- they are subject to the
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1 same sorts of treatment mechanisms that we utilized
2 in wastewater treatment plans. So as time wears on,
3 these sediments get churned. They actually get
4 treated and sit within the waterway. In addition to
5 that, as new sediments, cleaner sediments, enter the
6 system, they fall into any areas in different parts
7 of the system, where they actually cap the old
8 legacy sediments.
9
So taking into consideration those
10 four points, that's the basis for the Agency's
11 belief that the sediment quality is improving in the
12 system. Again, asking for data is -- the data we do
13 not have.
14
MS. FRANZETTI: Okay. I understand.
15 But let me ask you a couple of followup questions on
16 your explanation. I understand that you're saying
17 cleaner sediments. Cleaner sediments are going into
18 the waterway, and am I right, though, that even --
19 that as to that impact, you don't have any data?
20 You don't have sampling of --
21
MR. SULSKI: The cleaner sediments
22 going into the waterway.
23
MS. FRANZETTI: Right, right.
24
MR. SULSKI: Correct.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: You believe they're
2 cleaner based on, as you said, there has been
3 pretreatment program requirements placed on point
4 source dischargers that may have resulted in some
5 reduction of levels of pollutants in their
6 discharge; right?
7
MR. SULSKI: That would be indirect
8 dischargers that --
9
MS. FRANZETTI: Okay.
10
MR. SULSKI: -- discharge into the
11 sewers, yes.
12
MS. FRANZETTI: So, using legal
13 jargon, basically what you're saying is, "I see
14 circumstantial evidence."
15
MR. SULSKI: Correct.
16
MS. FRANZETTI: Because of things like
17 pretreatment programs, because of things like -- I
18 see just less amount of sediments in the funnels.
19 That's what leads you to believe that the sediments
20 are cleaner today in the waterway?
21
MR. SULSKI: Less amount of -- less
22 amount of sediments going out into the waterways,
23 because the frequency of CSOs has reduced as the
24 tunnel system is expanding and is able to capture
L.A. REPORTING (312) 419-9292
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1 more.
2
MS. FRANZETTI: All right.
3
MR. SULSKI: Yes.
4
MS. FRANZETTI: A couple of things
5 with respect to that, though. It sounds like you
6 would agree that we really don't know whether or not
7 these newer sediments are not at all toxic in toxic
8 amounts, correct? We don't know that for a fact?
9
MR. SULSKI: We don't. We don't know
10 that with the in situ sediments.
11
MS. FRANZETTI: Oh, I agree with that.
12
MR. SULSKI: Yeah.
13
MS. FRANZETTI: And you don't know it
14 with respect to --
15
MR. SULSKI: That's correct.
16
MS. FRANZETTI: -- these recurring
17 discharges that continue to occur in the waterway.
18 Okay. Moving on to I, in its submission in the AS
19 96-10 proceeding, the Illinois EPA stated the Agency
20 believes that it is technically feasible to reduce
21 temperature of the effluence by the use of cooling
22 towers and spray ponds. However, the Agency
23 believes that the cost of providing this cooling may
24 not be economically reasonable when compared to the
L.A. REPORTING (312) 419-9292
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1 likelihood of no improvement in the aquatic
2 community.
3
What is the Agency's current
4 position on the likelihood of any significant
5 improvement in the aquatic community, and identify
6 any scientific data that sports its position.
7
MS. WILLIAMS: I would like to see if
8 you'll agree to my clarification here. This is
9 certainly an accurate quote from the Board's
10 opinion, and I have no reason not to believe that
11 the Board's opinion accurately quotes what the
12 Agency submitted at the time, but I don't know, and
13 I'm assuming you don't know for sure, when we say
14 the "Illinois EPA stated," can we agree that the
15 Board stated that the Illinois EPA stated? Okay.
16 In it's submission. I didn't go back and at the
17 original petition to the Board at this time, and if
18 you did, I would --
19
MS. FRANZETTI: Oh, I -- I'll -- I'll
20 -- I'm more than happy. We'll go back and try and
21 pull that out for you. The Agency did support that
22 position.
23
MS. WILLIAMS: But can we agree,
24 though, to ask the witness based on the Board that
L.A. REPORTING (312) 419-9292
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1 stated this is what the Agency had?
2
MS. FRANZETTI: Right. But understand
3 my question is simply granted with that background,
4 but with that background just to establish that at
5 least the -- I believe the Agency believed this to
6 be the case that the cost of providing this cooling
7 may not be economically reasonable when compared to
8 the likelihood of no improvement in the aquatic
9 community.
10
I'm asking, though, today what is
11 the Agency's current position on the likelihood of
12 any significant improvement in the aquatic
13 community?
14
MR. SMOGOR: Based --
15
MS. FRANZETTI: If you know, if you
16 know. I mean, you may not know.
17
MR. TWAIT: Well, based on the Aqua
18 Nova report, they stated that secondary contact
19 standard is lethal. Based on MBI's report, the
20 temperature is also lethal to fish. So it's the
21 Agency's opinion that the current secondary contact
22 standards are too high.
23
MS. FRANZETTI: I understand.
24
MS. TIPSORD: I'm sorry. I didn't
L.A. REPORTING (312) 419-9292
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1 catch all of that. The current --
2
MR. TWAIT: The Agency believes that
3 the current secondary contact thermal standard is
4 too high.
5
MS. TIPSORD: Thank you.
6
MS. FRANZETTI: Mr. Twait, does the
7 Agency have a position on what the degree of
8 likelihood is for significant improvement in the
9 aquatic community if the industrial dischargers who
10 can't meet your proposed thermal standards start
11 putting in cooling towers, et cetera, anything else
12 that the Agency has described as being technically
13 feasible?
14
MR. ETTINGER: I'm going to object
15 here. Because we're bouncing back and forth between
16 the '96 petition and findings, which dealt with the
17 five-mile stretch between the I-55 bridge, and then
18 we're asking questions about the Upper Dresden Pool,
19 which deals with the area above the I-55 bridge. I
20 don't mind Miss Franzetti going back in this
21 history, but we can't ask questions and bounce
22 between these two areas and expect the record not to
23 be confused as to which stretch the witnesses are
24 being asked about.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: Well, I didn't want to
2 go into this because I thought that the Agency's
3 entitled to their opinion on what the scope was of
4 the adjusted standard in AS 96-10 proceeding, and,
5 in fact, to say it was limited to the five-mile
6 stretch is plainly inaccurate.
7
And so, yes, my questions do deal
8 with areas beyond just the five-mile stretch,
9 because as you can see from simply some of the
10 statements that the Board made back then, they were
11 talking about the upstream reach of the south branch
12 of the Chicago River. They were talking about the
13 Chicago Sanitary and Ship Canal and the Des Plaines
14 river. This was not limited to just looking at the
15 five-mile stretch.
16
MR. ETTINGER: Portions of it were. I
17 think we have to look at the record itself.
18
MS. FRANZETTI: Portions of it were.
19 I agree with you. Portions of it were --
20
MR. SULSKI: So what's the question.
21
MR. ETTINGER: Okay. What's the
22 question.
23
MS. FRANZETTI: -- but the entire
24 preceding wasn't, and I think I'm entitled to know
L.A. REPORTING (312) 419-9292
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1 what's changed in ten years from when the Agency
2 agreed that the more lenient standards that are more
3 lenient than what it is proposing today, which are
4 very strict standards, what has changed to make the
5 Agency think today those much stricter standards are
6 necessary, and I'm going to lead to any
7 significant --
8
MR. ETTINGER: All I'm asking,
9 counsel, is you be clear in each question which
10 stretch you're asking about, because I don't think
11 the record will be clear otherwise.
12
MS. FRANZETTI: I will try to do that,
13 counsel.
14
MS. TIPSORD: With that, is your
15 objection withdrawn? Or should I -- let me this:
16 With your objection noted on the record, I think
17 that will help the Board to know and the record to
18 reflect, that we are not always talking about above
19 I-55. Sometimes we are a he talking about below
20 I-55, and we'll look very carefully at that.
21
MR. ETTINGER: Thank you.
22
MS. TIPSORD: But we'll go ahead and
23 proceed with the questions.
24
MS. FRANZETTI: I don't think I have
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1 his answer to --
2
MS. DIERS: I think -- can you
3 repeat --
4
MS. FRANZETTI: Again, if the Agency
5 knows. I'm really not trying to be difficult. I
6 don't know whether, you know, your positions have
7 changed or not. So it's just: What is the Agency's
8 current position on the likelihood of any
9 significant improvement in the aquatic community,
10 and if you do believe there will be the basis, any
11 scientific data that sports that position.
12
MR. SMOGOR: For the Upper Dresden
13 Island Pool, the Agency's opinion is that
14 temperature is one of the factors limiting it from
15 attaining what we have proposed as the aquatic life
16 use for the Upper Dresden Island Pool.
17
We've proposed a temperature
18 standard that would, in effect, cool the Pool, and
19 therefore we believe that a cooling of the
20 temperature in Upper Dresden Island Pool would be a
21 necessary condition for attainment of the proposed
22 aquatic life use, but perhaps not sufficient alone.
23 In other words, there are other factors.
24
MS. FRANZETTI: All right. I --
L.A. REPORTING (312) 419-9292
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1
MR. SMOGOR: If you fix the
2 temperature, the aquatic life use may not show a
3 response, because there are other factors, then,
4 that kick into place.
5
MS. FRANZETTI: And such as. Which
6 are the other -- can I say more significant factors
7 in preventing attainment?
8
MR. SMOGOR: I wouldn't be comfortable
9 calling them "more significant." I think if you
10 identify more than one factor that's limiting
11 aquatic life use --
12
MS. FRANZETTI: Okay.
13
MR. SMOGOR: -- all factors, for lack
14 of a better term, have to be fixed in order to see
15 the aquatic life use respond.
16
MS. FRANZETTI: Okay. Then without --
17 I won't ask you to prioritize them or rank them --
18
MR. SMOGOR: Okay.
19
MS. FRANZETTI: -- but what are those
20 factors, other than temperature, that have to
21 change, that have to be fixed, whatever words you'd
22 like to use, in order to allow Upper Dresden Pool to
23 attain the Clean Water Act Aquatic Life used?
24
MR. SULSKI: Temperature and D.O.
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1
MR. SMOGOR: Dissolved oxygen was the
2 other one?
3
MR. SULSKI: Yes. Temperature and
4 dissolved oxygen.
5
MS. FRANZETTI: That's all? No
6 settlement issues? No habitat improvement needed?
7 No flow changes?
8
MR. SULSKI: The habitat data that we
9 have suggests that it can support a Clean Water Act
10 goal fisheries. The same applies to the south
11 branch. Not -- I don't mean to say that the south
12 branch can attain a Clean Water Act goal, but the
13 south branch can attain a certain --
14
MS. FRANZETTI: Right.
15
MR. SULSKI: -- level of aquatic life,
16 and temperature and dissolved oxygen are interfering
17 with that use as well.
18
MS. FRANZETTI: Okay. So both
19 temperature and D.O. levels have to achieve the
20 proposed water quality standards in this proceeding
21 for Upper Dresden in order for it to attain the
22 Clean Water Act Aquatic Life use goal?
23
MR. SULSKI: Both are identified as
24 the major stressors. If you take care of one and
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1 don't take care of the other, or take -- you know,
2 vice versa, I don't know -- I can't tell you today
3 which level is -- how close it's going to get, but
4 they're both significant factors, and they both are
5 not necessarily additive too. They play on each
6 other. As you increase temperature, you lower the
7 amount of oxygen that can be held in the water, et
8 cetera, et cetera. I mean, I can elaborate on that,
9 but --
10
MS. FRANZETTI: That's okay. I'm
11 going to ask you to hold off on that
12 because --
13
MR. SULSKI: Yeah, I know.
14
MS. FRANZETTI: -- we're trying not to
15 get too into the water quality standards themselves.
16 But I know you said -- you just said those are the
17 two major stressors. The whole purpose of these
18 questions is to just -- is to get it out for all of
19 us to understand any other stressors that impact the
20 ability or effect the ability of Upper Dresden Pool
21 to attain the Clean Water Act Aquatic Life use goal.
22
MR. SULSKI: Those are the ones that
23 we identified.
24
MS. FRANZETTI: Are there any others
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1 that you think apply out there?
2
MR. SULSKI: I think those two eclipse
3 the rest.
4
MS. FRANZETTI: But what are the rest?
5 I understand you may think they eclipse or trump.
6 What other stressors do you believe are out there?
7
MR. SULSKI: Those are the ones -- we
8 don't know. Those are the ones that were
9 identified.
10
MS. FRANZETTI: Okay. Okay. The "we
11 don't know" is fine. That's what I'm trying to
12 establish is are those the ones, are there some
13 others, although you may think they're secondary.
14 But these are the only ones. Okay.
15
With respect to the Chicago
16 Sanitary and Ship Canal, what prevents it from
17 attaining the Aquatic Life use goals of the Clean
18 Water Act?
19
MS. WILLIAMS: Is this a followup? I
20 just want to make sure we haven't moved on to
21 another --
22
MS. FRANZETTI: Yeah. This is a
23 followup. I just want to --
24
MR. SULSKI: It would be the same.
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1
MS. FRANZETTI: When we moved to
2 Chicago Sanitary and Ship Canal, because that's when
3 we start getting into UAA factors that you've
4 identified is what prevents that part of the
5 waterway from meeting the aquatic life use goal?
6
MR. SULSKI: Yes.
7
MS. FRANZETTI: Okay. Moving on to --
8
MR. TWAIT: I think -- I think when
9 Rob said that they're the same deal in temperature,
10 I think we also want to include sediment.
11
MS. FRANZETTI: For Upper Dresden
12 Pool?
13
MR. TWAIT: Not for the Upper Dresden
14 Pool, but for the Sanitary and Ship Canal.
15
MS. FRANZETTI: Well, with respect to
16 the Sanitary and Ship Canal, when you say we also
17 want to include sediment, he was already including
18 it, I thought, by referencing what we've already
19 gone over was --
20
MR. TWAIT: Okay.
21
MS. FRANZETTI: -- the UAA factors you
22 found to apply, correct?
23
MR. TWAIT: Okay. I just --
24
MS. FRANZETTI: I understand, I
L.A. REPORTING (312) 419-9292
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1 understand. Moving on to J. If the Board were to
2 adopt the Illinois EPA's proposed thermal water
3 quality standards for the Upper Dresden Pool, how
4 would this affect the continuance to the AS 96-10
5 adjusted standard granted to Midwest Gen?
6
MS. WILLIAMS: I think Scott tried to
7 answer this earlier. Do you want him to try again?
8
MS. FRANZETTI: Well, I don't know if
9 he really did, so I would like him to answer it
10 specifically.
11
MS. WILLIAMS: I -- do you think it's
12 he answered -- it's been answered already?
13
MS. TIPSORD: I -- no, I don't.
14
MS. WILLIAMS: Okay. That's fine.
15
MR. TWAIT: It's the Agency's belief
16 that Midwest Generation would not need the relief of
17 AS 96-10 since they would need to meet the water
18 quality standard within their mixing zone, and
19 therefore, they would already be meeting the
20 proposed -- or the existing relief granted at the
21 I-55 bridge.
22
MS. FRANZETTI: Okay. And for
23 clarification, your reasoning is that because the
24 proposed thermal water quality standard for Upper
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1 Dresden Pool is stricter than the general use --
2
MR. TWAIT: Yes.
3
MS. FRANZETTI: -- water quality
4 standard, which you believe is was AS 96-10
5 addresses, that that has to be met at the I-55
6 bridge. That, therefore, because the standards that
7 apply upstream of I-55, as you propose them for
8 thermal, are going to be stricter. We won't need
9 the adjusted standard granted in 96-10, correct?
10
MR. TWAIT: Yes.
11
MS. FRANZETTI: So, in effect, it's
12 going to be worthless, I guess would be another way
13 to say it?
14
MS. WILLIAMS: I prefer moot.
15
MS. FRANZETTI: Moot. Okay. Nicer
16 word. I was going to move into roman two,
17 regulatory proposal purpose and effect. If any --
18 unless anyone has some followups they want to jump
19 in with? Okay. I'll keep going.
20
Roman two A one. At Page 14 of
21 the Statement of Reasons, the Illinois EPA states
22 quote, "With the urban development of the Chicago
23 metropolitan area, CAWS and Lower Des Plaines river,
24 through an importance as a storm water management
L.A. REPORTING (312) 419-9292
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1 system," end quote.
2
The question is: Does the CSSC
3 portion of the Chicago Area Waterway System and the
4 Upper Dresden Pool of the Lower Des Plains River, do
5 those two areas still serve today as a storm water
6 management system?
7
MR. SULSKI: Yes. I mean, all
8 waterways, to some extent, serve as storm water
9 management.
10
MS. FRANZETTI: Do they serve in the
11 same way --
12
MR. SULSKI: Bodies.
13
MS. FRANZETTI: -- that all waterways
14 do, Mr. Sulski?
15
MR. SULSKI: In urban areas versus
16 non-urban areas, no.
17
MS. TIPSORD: Would you -- excuse me.
18 Would you say that they, then, are similar to used
19 as storm water management similar to what they would
20 be in, say, Rockford or Peoria?
21
MR. SULSKI: Yes.
22
MS. FRANZETTI: Okay. Moving on to B,
23 description in the secondary contact and indigenous
24 aquatic life use designations. At the bottom of
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1 Page 19 of your Statement of Reasons, it begins --
2 well, the Illinois EPA states that -- or lists the
3 following characteristics of the Chicago Area
4 Waterway System in the Lower Des Plaines that
5 existed in the 1970s and were the basis of their
6 designation as secondary contact waters for purposes
7 of the use designation. Do you want me to read all
8 of these? Or should I just assume everyone can see
9 them? Maybe a short reference. It deals with
10 routinely dredged and maintained channels including
11 deep sided cross sections designed to accommodate
12 barge traffic and optimize flow. Significant sludge
13 deposition, the entire system is minimum slowed and
14 consequently low-velocity stagnant flow conditions.
15 Diversion of Lake Michigan waters kept low as
16 possible. Urban stress is significant within the
17 entire drainage area. Good physical habitat in the
18 main channel was non-existent due to the impact the
19 commercial and recreational watercraft use of the
20 system as well as sludge deposition. In addition to
21 the above human made -- human made an irretrievable
22 modification, the Chicago Area Waterway System also
23 carries a massive wastewater load, including CSOs,
24 during wet weather.
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1
Question is: Isn't it correct
2 that all of these characteristics still exist today
3 in the Chicago Sanitary and Ship Canal and the Upper
4 Dresden Pool portion of CAWS in the Lower Des
5 Plaines River?
6
MR. TWAIT: All of these
7 characteristics do exist. However, they are much
8 less stressful to the aquatic life due to the large
9 amount of money spent by the district, NWRDGC, for
10 TARP and improve wastewater treatment.
11
MS. TIPSORD: Could you -- TARP for
12 record, please.
13
MR. TWAIT: Tunnel and Reservoir
14 Project.
15
MS. TIPSORD: Thank you.
16
MS. FRANZETTI: Mr. Twait, would you
17 limit that, though, to only certain of these
18 factors?
19
MR. TWAIT: Yes.
20
MS. FRANZETTI: Which ones?
21
MR. TWAIT: Number two, significant
22 sludge deposition. I think that's been reduced by
23 TARP. Number five, where you talk about sludge
24 deposition, I think that's been reduced by TARP, and
L.A. REPORTING (312) 419-9292
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1 that has an effect on physical habitat, and the last
2 one, massive wastewater load, including CSOs during
3 wet weather. This now is much lower due to TARP and
4 increased wastewater treatment.
5
MS. FRANZETTI: It is much lower?
6
MR. TWAIT: I think that would be
7 accurate.
8
MS. FRANZETTI: What's that based on,
9 Mr. Twait?
10
MR. TWAIT: It would be lower. It
11 would be lower.
12
MS. WILLIAMS: Can we clarify? By
13 "it" do you mean the mass of wastewater load or the
14 CSOs during wet weather?
15
MS. FRANZETTI: Are you asking me or
16 Mr. Twait?
17
MR. SULSKI: Okay. Well, let's assume
18 that "it" means the waste -- the massive wastewater
19 loads, and with the completion of the tunnel portion
20 of TARP, the waste loads have gone town.
21
MS. FRANZETTI: Such that they're no
22 longer massive wastewater loads?
23
MR. TWAIT: Define "massive."
24
MR. SULSKI: Right. Relative to what
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1 they were, they have substantially reduced. MWRD
2 can treat 2 billion gallons a day. The tunnels --
3 and before the TARP came in, anything in excess of
4 that went into the waterways. The TARP system had
5 hold to an additional 2 billion gallons. That's a
6 significant amount.
7
MS. FRANZETTI: Okay.
8
MR. SULSKI: Whether it --
9
MS. FRANZETTI: I understand.
10
MR. SULSKI: Where it puts it on the
11 mass of continuum, I don't know.
12
MS. FRANZETTI: But aren't you
13 speaking to CSO events and the effect of TARP on
14 those?
15
MR. SULSKI: Yes.
16
MS. FRANZETTI: That -- doesn't the
17 district continue to discharge wastewater into this
18 waterway, and isn't it an effluent-dominated
19 waterway?
20
MR. SULSKI: Well, we're squabbling on
21 what the word "load" means, because when we look at
22 the word "load," it means in addition to what a
23 stream can simulate, okay? So I'm thinking of a
24 pollutant load, a raw sewage, load.
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: I think it's fair to say
2 that the CSO -- the number of CSOs has also been
3 reduced, but the wastewater load 30 years ago,
4 MWRDGC did not nitrify at their facility, and they
5 are now nitrifying.
6
MS. FRANZETTI: Okay.
7
MR. TWAIT: And so that's greatly
8 reduced -- that's reduced the amount of ammonia in
9 the system.
10
MS. FRANZETTI: All right. So it
11 sounds like the things that you believe have
12 changed, at least to some extent, have to do with
13 CSOs, the levels, or the quality, of the wastewater
14 that does dominate the waterway, the amount of
15 sludge that is getting deposited in it; correct?
16
MR. SULSKI: Yes.
17
MS. FRANZETTI: Have I accurately
18 summarized? It appears, therefore, you do agree
19 that in this time, the channels, for example, still
20 are there, and include the steep-sided cross
21 sections designed to accommodate barge traffic and
22 optimized flow, correct? That hasn't changed?
23
MR. TWAIT: Yes.
24
MR. SULSKI: Yes.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: They're routinely
2 dredged and maintained? That hasn't changed?
3
MR. TWAIT: Correct.
4
MS. FRANZETTI: The entire system has
5 minimum flow, and consequently, low velocity
6 stagnant flow conditions. That hasn't changed?
7
MR. SULSKI: On the stagnant flow
8 conditions, I mean, there is flow through the
9 system. We have a couple of reaches that have
10 arisen over time that are more stagnant than they
11 used to be.
12
MS. FRANZETTI: They're more stagnant
13 than they used to be?
14
MR. SULSKI: Or a couple of reaches.
15
MS. FRANZETTI: Okay.
16
MR. SULSKI: I wouldn't use the word
17 "stagnant" to describe the entire system.
18
MS. FRANZETTI: Okay. Mm-hmm. And
19 urban stress is still significant within
20 the -- within the UAA area?
21
MR. TWAIT: I don't know if it's
22 significant or not.
23
MS. FRANZETTI: Okay. The Agency
24 doesn't know if they would consider it significant.
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1 All right. And lastly, then, you would agree that
2 good physical habitat for aquatic community in the
3 main channel was nonexistent and still is
4 nonexistent -- I'm sorry -- due to the impact of
5 commercial and recreational water craft use. That
6 hasn't changed, has it?
7
MR. SMOGOR: I don't believe it -- I
8 don't know if it has changed or not, but impressions
9 and interpretations of the quality of physical
10 habitat may be different now than what they were in
11 1970. We don't really know what was used to come to
12 that opinion that was nonexistent. I can speak for
13 the Upper Des Plaines -- or I'm sorry, the Upper
14 Dresden Island Pool. There are portions of what we
15 believe are good physical habitat.
16
MS. FRANZETTI: Mm-hmm.
17
MR. SMOGOR: So I would not agree with
18 this Statement for the Upper Des Plaines -- or the
19 Upper Dresden Isle Pool, sorry.
20
MS. FRANZETTI: Okay. So you wouldn't
21 agree because you feel there are some portions of
22 the Upper Dresden Pool that have good habitat?
23
MR. SMOGOR: I believe there are some
24 portions of habitat in the Upper Dresden Island Pool
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1 to the extent that we've judged that the Upper
2 Dresden Island Pool can attain the Clean Water Act
3 Aquatic Life goal.
4
MS. FRANZETTI: By that you mean you
5 think there are enough good portions --
6
MR. SMOGOR: Yes.
7
MS. FRANZETTI: -- of habitat that it
8 can attain?
9
MR. SMOGOR: Yes.
10
MS. FRANZETTI: Okay. With -- with
11 respect to question two, moving on, question two, if
12 the Illinois EPA maintains that one or more of the
13 above characteristics no longer applied to the CSSC
14 in the Upper Dresden Pool, then describe the factual
15 data and information that supports the Agency's
16 position. I'll save you the time in terms of citing
17 to two. I think you mentioned earlier Attachment R
18 to the ranking and report or the DMDI CABD report to
19 your Statement of Reasons would that be one of the
20 things you say support your prior answer?
21
MR. TWAIT: Well, I think my answer to
22 this question would be that we agreed that they all
23 still apply.
24
MS. FRANZETTI: Oh, okay. I'm sorry.
L.A. REPORTING (312) 419-9292
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1 I thought at least, perhaps, with respect to some of
2 the others. Fine, fine. I'll move on.
3
MR. TWAIT: I think they're reduced.
4
MS. FRANZETTI: Right. Okay.
5
MR. TWAIT: But still all the factors
6 are there.
7
MS. FRANZETTI: They're reduced, but
8 they still apply. Moving on to number three --
9
MS. DEXTER: Can I ask a follow up?
10
MS. FRANZETTI: Oh, I'm sorry.
11
MS. TIPSORD: I'm Jessica Dexter at
12 ELPC.
13
MS. TIPSORD: You need to speak up.
14 They can't hear you in the back.
15
MS. DEXTER: Sorry. Jessica Dexter at
16 ELPC. Would it be accurate to say that this is the
17 first time these factors have been thoroughly
18 analyzed to your use attainability analysis?
19
MS. WILLIAMS: We should clarify
20 "factors."
21
MS. DEXTER: The character --
22
MS. WILLIAMS: You mean by the UAA
23 factors --
24
MS. DEXTER: The characteristics that
L.A. REPORTING (312) 419-9292
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1 you've been discussing in the last two questions.
2
MR. SULSKI: This is the most
3 comprehensive evaluation of this system that we know
4 of.
5
MS. DEXTER: All right. Thank you.
6
MS. FRANZETTI: Okay. Where am I?
7
MS. TIPSORD: Question three.
8
MS. FRANZETTI: Number three. Is the
9 Chicago Area Waterway System achieving current water
10 quality standards, or is it listed as impaired under
11 Section 303 D of the Clean Water Act?
12
MS. WILLIAMS: I think this was one
13 for Howard. Did we -- I'm not sure if he was sworn
14 in, though.
15
MS. TIPSORD: Okay. She'll swear him
16 in just to be on the safe side.
17
(Witness sworn.)
18
MR. ESSIG: Now, not all the segments
19 in the CAWS are impaired. Some of them are meeting
20 water quality standards.
21
MS. FRANZETTI: Would you be able to
22 describe for us the ones that are impaired and
23 listed on the Section 303 D list, or I'm also open
24 if that's too tough to do, off the top of your head
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1 that if the Agency would please provide that
2 information.
3
MR. ESSIG: I think it would be easier
4 for me to provide it, just because it would be -- if
5 you wanted me to tell you which segments were
6 impaired and also list the causes, that could go on
7 quite a bit. I can bring in the information
8 tomorrow.
9
MS. FRANZETTI: Great. I think along
10 with the map you were talking -- the Agency was
11 already talking about earlier, I think as well a map
12 that shows the segments that are impaired, they're
13 on the 303 D list, and just as you're suggesting the
14 causes of the impairments would be very helpful.
15 Because it is hard to work with --
16
MR. ESSIG: I could mention a few of
17 them, if you --
18
MS. FRANZETTI: Sure. Go ahead.
19
MR. ESSIG: Hopefully I have this
20 correct, but there are 16 segments in the CAWS water
21 shed, and of those 16, 11 of them are not meeting
22 water quality standards. The Sanitary Ship Canal --
23 there's three segments in the Sanitary Ship Canal,
24 and they're not meeting standards for dissolved
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1 oxygen.
2
I should preface this was based on
3 the 2006 integrated report, so it was based on data
4 through 2003. But the Sanitary Ship Canal,
5 primarily it's dissolved oxygen. I think there was
6 one segment that ionized ammonia was listed as a
7 cause. The -- one segment on the Cal Sag Channel
8 was listed as impaired due to dissolved oxygen,
9 iron, total phosphorus, total nitrogen, and
10 suspended follows.
11
The other segment on the Cal Sag
12 Channel is in full use. Just to -- yeah. That -- I
13 think that's probably enough, because otherwise it's
14 going to get too repetitive. Unless there are --
15 unless there's --
16
MS. FRANZETTI: No, no, no. I think
17 we'll let you provide the information to us
18 tomorrow, or as soon as you can, I guess I should
19 say. Can you -- can you go on and tackle the next
20 question of: Will the proposed designated use
21 changes in any way affect the sources of impairments
22 to the extent you're aware of them? I'm kind of
23 jumping over A because you're going to address that
24 in what you're going to prepare for us, and can you
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1 tackle how changing these use designations affects
2 the whole 303 D and impairments with the causes of
3 impairments?
4
MR. ESSIG: Well, I'm not quite sure
5 -- you've got -- you've indicated here sources.
6
MS. FRANZETTI: Yeah.
7
MR. ESSIG: I'm assuming you're
8 talking about CAWS, which are the actual pollutants
9 that are causing the problem.
10
MS. FRANZETTI: Yeah. I should change
11 it to that, and then we might want to also talk
12 about, then, the sources of those causes of the
13 impairments, but let's take the causes of the
14 impairments. Anything that could change by changing
15 the proposed used designations?
16
MR. SULSKI: The sources of impairment
17 won't change by simply changing the use designation.
18 Does that answer your question?
19
MS. FRANZETTI: Yes.
20
MR. SULSKI: Okay. Then I'll stop
21 there.
22
MS. FRANZETTI: No. It answers it,
23 but then of course there's that followup. Why don't
24 you go ahead, Mr. Sulski, and finish what you were
L.A. REPORTING (312) 419-9292
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1 going to say.
2
MR. ESSIG: Okay. Once the uses are
3 assigned or designated --
4
MS. FRANZETTI: Right.
5
MR. ESSIG: There will be water
6 quality standards attached to there. If those water
7 quality standards are met, there wouldn't be a
8 cause. If those standards are still being exceeded,
9 then they would be listed as a cause.
10
MS. FRANZETTI: Well, what I'm trying
11 to establish, which I think is the case, is if you
12 already have impairment under the existing use
13 designations, and to the extent which is, for the
14 most part, in this proposed rulemaking, you're
15 proposing to elevate those use designations to
16 higher uses. Isn't it -- doesn't it follow that all
17 of these will continue to exist and/or others be
18 added?
19
MR. ESSIG: No, not necessarily.
20
MS. FRANZETTI: Okay. Explain to me
21 why that is.
22
MR. ESSIG: First it's the Sanitary
23 Ship Canal. The iron standard is being changed, I
24 think, to dissolve, and it currently had the total
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1 dissolved standard, which I believe is the secondary
2 contact in the vision of Aquatic Life.
3
MS. TIPSORD: You need to speak up.
4
MR. ESSIG: Excuse me. Sorry. The
5 dissolved oxygen standard for the Sanitary Ship
6 Canal presently is at four milligrams per liter.
7 The new standard, I believe, is three and a half,
8 but there will be a seven-day meet of daily
9 minimum --
10
MR. SMOGOR: There will be additional
11 pieces to that standard.
12
MR. ESSIG: So it might -- it might
13 beat that standard, it might not. I don't know for
14 sure. But in the case of the Sanitary Ship Canal,
15 it's still going to be given the lowest use, use B,
16 as far as the Chicago Area Waterways and Lower Des
17 Plaines.
18
MS. FRANZETTI: I guess maybe I -- if
19 I can, I should ask that basic question. Is use B
20 for aquatic life use meant to be a higher use
21 designation than the current secondary contact
22 designation for aquatic life purposes?
23
MR. ESSIG: I think so, yes.
24
MS. FRANZETTI: It is meant to be
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1 about the same. Okay. All right. Then that makes
2 sense. Do you know whether the Chicago Area
3 Waterway System is impaired for temperature? I'm
4 sorry, I moved on to question four.
5
MR. ESSIG: No.
6
MS. FRANZETTI: You don't know, or it
7 is not impaired for temperature?
8
MR. ESSIG: It was not listed as being
9 impaired for temperature as of 2002.
10
MS. FRANZETTI: All right. If it's
11 all right with you, Madam Hearing Officer, I think I
12 should skip five --
13
MS. WILLIAMS: Can I ask a followup?
14
MS. FRANZETTI: Excuse me?
15
MS. WILLIAMS: Can I ask a followup?
16
MS. TIPSORD: Sure. Go ahead.
17
MS. WILLIAMS: Do you know how that
18 waterway was evaluated?
19
MR. ESSIG: Yes. We were using data
20 from MWRDGC, and also one of our ambient water
21 quality stations, and those sites are always sampled
22 once a month for temperature. So there may be
23 excursions, we don't know for sure. There may not
24 be, but once a month really isn't bad.
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1
MR. ETTINGER: May I ask --
2
MS. FRANZETTI: What did the -- I'm
3 sorry, Albert, can I just say this?
4
MR. ETTINGER: Sure.
5
MS. FRANZETTI: What did the once a
6 month sampling -- I mean, a lot of times you don't
7 even have that. The monthly sampling from two
8 locations and none of them --
9
MR. ESSIG: There were three locations
10 -- I'm just -- right now I'm just talking about the
11 Sanitary Ship Canal.
12
MS. FRANZETTI: Uh-huh.
13
MR. ESSIG: There are other monitory
14 sites on some of the other waterways also, but once
15 a month for something like temperature, depending
16 what time of day you're collecting it, it's first
17 thing. You don't know if you're getting the daily
18 maximum.
19
MS. WILLIAMS: And Mr. Essig, what
20 daily maximum would you be looking at for
21 determining?
22
MR. ESSIG: It'd be 37.8.
23
MS. WILLIAMS: Can you translate that
24 for Farenheit for us also?
L.A. REPORTING (312) 419-9292
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1
MR. ESSIG: 90 -- I'm not to sure. 93.
2
MS. WILLIAMS: Okay.
3
MR. SULSKI: Those are the secondary
4 contact standards.
5
MS. FRANZETTI: Mm-hmm.
6
MS. TIPSORD: Albert?
7
MR. ETTINGER: Yeah. That was my
8 question. When you say something was "not impaired
9 for temperature," you mean it's not violating the
10 secondary contact standards?
11
MR. ESSIG: Correct.
12
MR. SULSKI: Correct.
13
MR. ETTINGER: Right. Also, I believe
14 Mr. Sulski related to this earlier. There's a
15 relationship between temperature and dissolved
16 oxygen concentration, isn't there?
17
MR. SULSKI: Yes.
18
MR. ETTINGER: And what is that?
19
MR. SULSKI: Well, as temperature
20 increases in a fluid, it can hold less gas, in this
21 case oxygen. So as you increase the temperature,
22 the amount of oxygen the water can hold is reduced.
23
MR. ETTINGER: So, if you reduce the
24 temperature in the system, you would have a higher
L.A. REPORTING (312) 419-9292
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1 dissolved oxygen concentration?
2
MR. SULSKI: You would have the
3 ability to have a higher oxygen, yeah. Within the
4 waters, yes.
5
MR. ETTINGER: Thank you.
6
MS. FRANZETTI: Now, Mr. Sulski, I
7 think you need to explain a bit more what you said
8 about the ability. It's not a distinct correlation,
9 is it? I mean, what Mr. Ettinger's trying to say is
10 if Midwest General lowers the temperature of its
11 effluent discharges, your D.O. levels are going to
12 go up in that water way. It's a given. Do you know
13 that for a fact?
14
MR. SULSKI: I'm just -- I'm speaking
15 in terms of the amount of oxygen that can be held in
16 the water of different temperatures. That's it.
17
MS. FRANZETTI: Right.
18
MR. SULSKI: We have addressed that
19 situation in other parts of this proposal in getting
20 more D.O. into the system, as you know.
21
MS. FRANZETTI: Right.
22
MR. SULSKI: Okay.
23
MS. FRANZETTI: Right.
24
MR. SULSKI: Well, in order to get
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1 the -- you can get more D.O. into the system if you
2 have lower temperatures.
3
MS. FRANZETTI: And you believe you
4 can get more D.O. into the system?
5
MR. SULSKI: Based on the information
6 that we've seen, yes.
7
MS. FRANZETTI: Moving on to question
8 six.
9
MS. TIPSORD: We're going to hold
10 five, correct?
11
MS. FRANZETTI: Yeah, right. Does the
12 Agency plan to develop a TMDL for the Chicago Area
13 Waterway System to address the impairments that
14 exist out there?
15
MR. SULSKI: Yes. It'll be around new
16 uses. It'll -- that's sort of --
17
MS. FRANZETTI: Part of the reason for
18 this question --
19
MR. SULSKI: Mm-hmm.
20
MS. FRANZETTI: -- is at a conference
21 late last -- late -- second half of last year, I
22 believe that the Lower Des Plaines and the Chicago
23 Area Waterway System were on an Agency list of
24 proposed 2008 TMDL projects. Can you explain why,
L.A. REPORTING (312) 419-9292
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1 at the time of proposing changed used designations,
2 you're going to move ahead with a TMDL?
3
MS. WILLIAMS: I'm not sure any of us
4 are aware of that. Are you --
5
MR. SULSKI: I'm aware that --
6
MS. FRANZETTI: I think Marcia may be
7 aware.
8
MR. SULSKI: I'm aware that TMDLs are
9 giong forward on certain reaches, and why the timing
10 is such, that I'm not aware.
11
MS. WILLHITE: Hold on a second. I've
12 got a list of the TMDLs report. If you want to move
13 on a little bit, I'll see if I can find that.
14
MS. FRANZETTI: Sure.
15
MS. WILLHITE: It might be for a
16 factor that's unrelated to the subject of the use
17 designations and standards.
18
MS. TIPSORD: Marcia, I don't believe
19 we have you sworn in. That's okay. We can do it
20 now.
21
(Witness sworn.)
22
MS. WILLIAMS: Do you want us to move
23 on for a minute?
24
MS. FRANZETTI: Yeah. I'm gonna move
L.A. REPORTING (312) 419-9292
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1 on.
2
MS. WILLHITE: Move on until tomorrow,
3 because I left them in my office.
4
MS. FRANZETTI: Okay. Moving on to
5 number seven what are the bio accumulative risks to
6 humans or wildlife from fish tissue containing
7 persist organic pollutants, such as PCBs and
8 mercury, if you know?
9
MR. TWAIT: It's toxic -- it's
10 toxic -- it's detrimental to too many PCBs. That's
11 why we have fish advisories.
12
MS. FRANZETTI: And aren't there fish
13 advisories that are applicable to the entire UAA
14 waterway?
15
MR. TWAIT: There are fish advisories
16 that are applicable state wide.
17
MS. FRANZETTI: Are there any --
18
MR. ESSIG: There are specific for the
19 Chicago Area Waterways and the Lower Des Plaines.
20
MS. FRANZETTI: Thank you. Could you
21 please describe what those are?
22
MR. ESSIG: For PCB's?
23
MR. SMOGOR: Or particular species?
24 Yes, probably.
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1
MS. TIPSORD: You guys are going to
2 have to speak up.
3
MR. SMOGOR: Fish advisories are
4 typically species-specific, and even some of them
5 are -- I think H. H -- or, I'm sorry. Size-class
6 specific, and then to water body-specific as well,
7 but I don't know the details beyond that.
8
MS. FRANZETTI: Okay.
9
MR. SMOGOR: Sorry.
10
MS. FRANZETTI: But would you agree
11 that the entire UAA is under a fish consumption
12 advisory for PCBs?
13
MR. ESSIG: Yes.
14
MS. TIPSORD: Excuse me. You said the
15 entire UAA?
16
MS. FRANZETTI: Mm-hmm. Waterway.
17
MS. TIPSORD: Okay.
18
MS. FRANZETTI: And as you noted, I
19 think, not to say this is only the UAA waterway, but
20 also for mercury, correct?
21
MR. ESSIG: It's a state-wide mercury
22 advisory.
23
MS. FRANZETTI: Has the Agency
24 considered the ecological and human health risks
L.A. REPORTING (312) 419-9292
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1 associated with upgrading beneficial use
2 designations?
3
MS. WILLIAMS: I don't think -- does
4 any -- do you understand the question?
5
MR. SMOGOR: Yeah we -- we're having a
6 little difficulty linking fish consumption, which
7 wasn't a use considered in our Statement of Reasons,
8 or in the associated UAA's. The uses that were
9 considered were primarily human contact uses and
10 aquatic life uses. So we're kind of confused about
11 the questioning.
12
MS. FRANZETTI: Even for Upper Dresden
13 Pool?
14
MR. SMOGOR: Oh, all right. I might
15 be mistaken then. Sorry.
16
MR. TWAIT: We didn't designate a use,
17 however we did put in water quality standards for
18 PCBs and mercury to protect human health, and those
19 are based on fish consumption.
20
MS. FRANZETTI: Mr. Twait, I'm sorry.
21 Can you explain that a little further? I'm not sure
22 I fully followed that
23
MR. TWAIT: We designate -- we -- we
24 set the water quality standards for these waters at
L.A. REPORTING (312) 419-9292
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1 the same level as general use water quality
2 standards for protection of human health for fish
3 consumption for mercury -- let me check to see what
4 the other -- I'm sorry. It was mercury and benzine
5 that we set for protection of human health, and
6 that's through fish consumption. That's in our
7 Statement of Reasons on Page 73.
8
Q. Does that address the fact that there
9 is a specific, for example, PCB consumption advisory
10 that applies?
11
MR. TWAIT: No. I was mistaken. This
12 had nothing to do with PCBs, it was only for mercury
13 and benzine.
14
MS. FRANZETTI: So the proposed
15 upgrading of the Upper Dresden Pool use will protect
16 as a use -- fish consumption with an Upper Dresden
17 Pool when those fish may not be safe to eat. I'm
18 not asking whether it makes sense --
19
MS. WILLHITE: Yes.
20
MS. FRANZETTI: -- I'm just asking
21 whether that's the case.
22
MS. WILLHITE: You put the standards
23 in place to protect the use, but the fish
24 consumption advisories are advice beyond that use
L.A. REPORTING (312) 419-9292
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1 designation. It's advice to the public concerning
2 the potential for contaminated fish in the water
3 body limiting their consumption in order to better
4 protect health. They're kind of -- they're related,
5 but they're not the same thing.
6
MS. FRANZETTI: Okay. Moving on to
7 roman three, use attainability analysis for the
8 CAWS. Capital A, lack of attainment of Clean Water
9 Act goals. On Page 9 of the camp dresser McGee, UAA
10 report for the CAWS, which is Attachment B, CDM
11 determined that quote, "None of the water bodies
12 could achieve Clean Water Act goals due to
13 limitations described in the six UAA factors," end
14 quote. CDM also concluded that several waterway and
15 effluent management controls would need to be
16 implemented before the CAWS could achieve all of its
17 recommended uses.
18
At Page 16 in the CDM report, it
19 is acknowledged that these conditions quote, "Are
20 not reversible in the foreseeable future." Question
21 A: Given that none of these management controls
22 have begun and there is no time table for
23 implementing them, why does the Illinois EPA believe
24 that more restrictive thermal water quality
L.A. REPORTING (312) 419-9292
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1 standards are necessary for the CAWS?
2
MR. TWAIT: In order to --
3
MS. WILLIAMS: I'm not sure I
4 understand the question.
5
MS. FRANZETTI: Does Mr. Twait
6 understand it?
7
MR. SULSKI: I think I understand it.
8
MR. TWAIT: As I --
9
MS. FRANZETTI: I'll try to explain it
10 further, but, I mean, the consultant concluded that
11 you're going to have to do a lot more out there with
12 waterway management controls, effluent management
13 controls, before the CAWS can achieve full aquatic
14 life use goals of the Clean Water Act, and it's due
15 to at least one or more of the six UAA factors, and
16 at the same time -- and it says that these things
17 are not reversible in the foreseeable future. But
18 at the same time you're proposing more stringent
19 thermal water quality standards. We don't
20 understand why you feel that's necessary.
21
MR. SULSKI: Let me try to explain.
22
MS. WILLIAMS: Why don't you let Scott
23 first?
24
MR. SULSKI: Go ahead, Scott. You try
L.A. REPORTING (312) 419-9292
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1 first, then I'll --
2
MR. TWAIT: For waters in the CAWS,
3 the A and B waters were not proposing Clean Water
4 Act goals. We don't think they can meet them, and
5 we are putting more restrictive thermal limits to
6 protect the existing aquatic life.
7
MR. SULSKI: And D.O. We're attacking
8 them both, the D.O. and the temperature for what's
9 there.
10
MS. FRANZETTI: Then how do you
11 explain making the D.O. standards more lenient?
12
MR. SULSKI: In Aquatic B waters, new
13 information.
14
MS. FRANZETTI: That's what I thought
15 we were just talking about was from Aquatic life B
16 waters, and you --
17
MR. SMOGOR: I'm going to -- sorry,
18 just to clarify, I'm not sure that you can say that
19 the new D.O. standards are more stringent or more
20 lenient because the new standards are in a form that
21 differ so much from the existing standard that it's
22 kind of an apples and oranges comparison there.
23
MS. FRANZETTI: Okay.
24
MR. ETTINGER: Can I just --
L.A. REPORTING (312) 419-9292
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1
MS. TIPSORD: Albert.
2
MR. ETTINGER: Yes. Did -- some of
3 you participated in the dissolved oxygen standard
4 that the Board's been through for about four years
5 now?
6
MS. WILLIAMS: Only Roy did.
7
MR. ETTINGER: Only Roy did. Okay.
8
MR. SMOGOR: I try to forget it.
9
MR. ETTINGER: We're all trying to
10 forget it, but I still remember it a little, and did
11 we -- in that process of that proceeding revise the
12 dissolved oxygen standards for the whole state?
13
MS. WILLIAMS: It's actually not done
14 yet.
15
MR. ETTINGER: Well --
16
MS. TIPSORD: Yes, it is.
17
MS. WILLIAMS: Oh, it is done? Oh,
18 sorry.
19
MR. SMOGOR: We made recommendations
20 to a proposal so our recommendations is what we --
21
MR. ETTINGER: So and -- so there were
22 -- we -- we reviewed and the Board reviewed that the
23 dissolved oxygen standard comprehensively for the
24 whole state.
L.A. REPORTING (312) 419-9292
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1
MR. SMOGOR: It addressed on waters
2 that are currently designated, or were currently
3 designated, as general use waters. That was -- that
4 was the the realm of that proposal, general use
5 waters.
6
MR. ETTINGER: And then the course of
7 that proceeding, we developed standards designed to
8 protect both adult fish and young fish during the
9 breeding period. Is that correct?
10
MR. SMOGOR: Yes. "Early life
11 stages," I think, was the terminology used.
12
MR. ETTINGER: Did the Agency use the
13 information that was developed in the course of
14 dissolved oxygen proceeding in order to formulate
15 its proposal for the dissolved oxygen standards
16 applicable in this proceeding?
17
MR. SMOGOR: To the extent that we
18 wanted the dissolved oxygen standards proposed in
19 this proceeding to be as consistent as possible with
20 those recommended in the prior proceeding, yes. We
21 did consider that.
22
MR. ETTINGER: Thank you.
23
MS. FRANZETTI: I think what I'm
24 struggling with is that the CAWS, because of
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1 irreversible things, or because of things that
2 aren't going to change for the long haul foreseeable
3 future, you're not really changing the use
4 designation for aquatic life purposes, as I just
5 heard. Secondary -- the secondary contact
6 indigenous use is same or very similar to what
7 you're proposing, and yet there is a significant
8 drop in the thermal standard --
9
MS. WILLIAMS: I object. I don't
10 think that's consistent at all with we just said. I
11 didn't hear that.
12
MS. FRANZETTI: Well, all right.
13 Then, I heard wrong. But I thought I asked the
14 question of isn't the secondary contact use
15 designation that applies out there now --
16
MS. WILLIAMS: Okay.
17
MS. FRANZETTI: Similar to, same as,
18 your proposed aquatic life use B designation, and I
19 thought Mr. Twait said yes.
20
MR. TWAIT: I don't know that I
21 would've answered that question.
22
MS. FRANZETTI: All right. Well, then
23 go ahead and answer it. I think that's one of the
24 fundamental things we have to be clear on here, is
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1 what's the difference between the existing use
2 classifications for aquatic purposes, and your
3 proposed aquatic life use B use?
4
MR. SMOGOR: The aquatic life uses
5 proposed in this hearing for Brandon Pool plus B
6 waters and for the Chicago Area Waterway System A
7 waters do not represent attainment of the Clean
8 Water Act Aquatic Life, nor did -- nor does the
9 existing secondary contact end indigenous aquatic
10 life use.
11
To that extent, they are similar.
12 They all fall short of being able to attain that
13 Clean Water Act Aquatic Life goal. Obviously,
14 they're not exactly the same, because we have
15 changed the wording. I think there have been
16 additional considerations. One could say they're
17 similar, but one can say they're not similar
18 100 percent.
19
MR. FORT: Can I ask --
20
MS. FRANZETTI: Yes.
21
MR. FORT: I was -- I thought I
22 understood it before, but now I don't.
23
MR. SMOGOR: Sorry.
24
MR. FORT: Let's take it one at a
L.A. REPORTING (312) 419-9292
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1 time. What is the difference in uses, recognized
2 uses, recommended uses, whatever you want to say,
3 the uses in your proposal for which you are calling
4 the use B waters, Chicago Sanitary and Ship Canal
5 and part of the Lower Des Plaines, if I said it
6 right. What are the differences between use B waters
7 and today's secondary contact use designation?
8
MS. WILLIAMS: Can I maybe think of
9 another way to phrase that question?
10
MR. FORT: No, I like my phrasing.
11
MS. WILLIAMS: Well, let me try mine,
12 and if that doesn't answer yours -- do any of the
13 Agency witnesses know what the current secondary
14 contact aquatic life standard means?
15
MR. SMOGOR: Actually, there are no --
16
MS. WILLIAMS: I mean, I'm not sure --
17 does it --
18
MR. SULSKI: I don't know.
19
MS. WILLIAMS: Was an analysis
20 undertaken in 1970 to explain that?
21
MR. SMOGOR: Not that I'm aware of.
22
MR. FORT: Well, the words I think --
23
MS. FRANZETTI: Now, I don't mean to
24 interrupt, but you are sitting there as the State
L.A. REPORTING (312) 419-9292
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1 Environmental Agency with a use designation that's
2 been on the books for over 30 years, and you are all
3 telling me you don't understand it? You don't know
4 what it means?
5
MR. ETTINGER: They're all young
6 people.
7
MS. WILLHITE: Well, I think what it
8 means is that -- my interpretation would be that
9 indigenous aquatic life means the conditions that
10 are present and the aquatic life that has adapted to
11 those conditions would remain the same.
12
That's what I believe indigenous
13 aquatic life protection means. It means that
14 whether there was a detailed analysis done or not,
15 one presumed that species that are adapted to the
16 conditions that exist now, those conditions will be
17 maintained, and those aquatic life -- yeah 1970,
18 "now" means 1970 -- those conditions will be
19 maintained in order to maintain the indigenous
20 population.
21
MR. FORT: Okay. And was is the --
22
MS. FRANZETTI: Now back to Mr. Fort.
23
MR. FORT: Okay. Thank you.
24
MS. FRANZETTI: What are the new uses
L.A. REPORTING (312) 419-9292
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1 you trying to achieve?
2
MR. FORT: What's the difference --
3 what's the difference between your use B water use
4 designations and the existing indigenous aquatic
5 life -- indigenous aquatic life designation from
6 before, in practical terms?
7
MS. WILLHITE: Waiting for the
8 technical experts to formulate an answer.
9
MR. SMOGOR: Can you ask that again,
10 please? Sorry.
11
MR. FORT: Would you read that back,
12 please?
13
(Whereupon, the record was read as
14
requested.)
15
MR. SMOGOR: Okay so you're sticking
16 just to aquatic life here? We're not addressing
17 other uses? In your question, you're interested in
18 just focusing on aquatic life?
19
MR. FORT: Yeah, I was talking about
20 the difference as it exists today versus the use B
21 designation in the proposed regulation.
22
MR. SMOGOR: And I can -- I can only
23 address the use -- one of -- there's a difficulty
24 here. The current standards, which are called
L.A. REPORTING (312) 419-9292
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1 secondary contact and indigenous aquatic life use,
2 really address two separate and very distinct uses.
3 Secondary contact use, which is a human health
4 issue, and indigenous aquatic life, which is an
5 aquatic life issue, I can only address the
6 indigenous aquatic life portion of that for today
7 for the current existing standard.
8
MR. FORT: Okay. So do that.
9
MR. SMOGOR: And I can try to do that,
10 and the -- they don't differ to the extent that both
11 of them represent a biological condition that is
12 below or less than attainment of the Clean Water Act
13 aquatic life goal. So that -- they're similar in
14 that regard.
15
The difference is they are
16 dissimilar, because well, we've defined them
17 differently. We've probably considered -- again,
18 that's hard to say. I can't say how much -- how
19 many aspects and how many things were considered
20 back then when indigenous aquatic life use -- or
21 actually I think it was restricted use is what it is
22 called. I really don't have a good grip on what was
23 actually considered in terms of the aquatic life
24 component of that. Sorry.
L.A. REPORTING (312) 419-9292
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1
MR. FORT: Well, when I --
2
MR. TWAIT: I think that when the
3 secondary contact standards were originally set up,
4 they were -- there was very few organisms that could
5 survive in these waters, and now we're seeing a lot
6 more aquatic species, and from our language, I
7 believe we're protecting the --
8
MR. SULSKI: The tolerant.
9
MR. TWAIT: The tolerant individuals
10 in aquatic life use B waters, and for the aquatic
11 life use A waters, we're protecting the tolerant and
12 intermediate tolerant individuals.
13
MR. FORT: Okay. So in the use B
14 waters, you are trying to protect those that can --
15 those aquatic species that can adapt to poor or very
16 poor habitat conditions, correct?
17
MR. SMOGOR: Yeah. That's --
18
MR. FORT: And you're calling it the
19 non-recreation use, because that takes into account
20 the heavy barged traffic and big commercial water
21 vehicles that use the Sanitary and Ship Canal?
22
MR. SULSKI: That varies by region.
23
MR. TWAIT: Well, that -- that is --
24
MR. SMOGOR: Kind of separate issue.
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: We're talking about
2 aquatic life use here. The non-recreational is to
3 our recreational water quality proposal. The
4 non-recreational is for potential bacteria standards
5 and none --
6
MR. FORT: Non-recreational use is
7 only significant for the bacterial standards, not
8 for other things?
9
MR. TWAIT: Yes.
10
MR. FORT: Okay. Thank you.
11
MR. SMOGOR: But, if I might add,
12 there's another way -- and I didn't capture this at
13 first, and I'm glad Scott said that. Another way to
14 think of it is: If you're going to protect -- back
15 in 1970, if you're going to protect, even though we
16 all recognize it's below the Clean Water Act Aquatic
17 Life goal, we're still going to try to protect for
18 best attainable. What can this water be? And back
19 in 1970, recognized that that best attainable
20 biological condition was a lesser biological
21 condition than at best attainable biological
22 condition can be today, given that best attainable
23 today for those waters is still below the Clean
24 Water Act Aquatic Life Goal. Does that help?
L.A. REPORTING (312) 419-9292
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1
MR. FORT: Well, what I hear you
2 saying now is that you're actually increasing the
3 standard in terms of the aquatic use. Is that
4 right?
5
MR. SMOGOR: In terms of absolute
6 biological condition, yes. We're expecting -- we're
7 expecting more with this proposed standard than the
8 indigenous aquatic life standards in 1970.
9
MR. FORT: In terms of the uses?
10
MS. WILLHITE: Yeah.
11
MR. SMOGOR: In terms of the Aquatic
12 Life use, yes?
13
MR. ANDES: And that's for use B?
14 That's for B?
15
MS. WILLIAMS: Correct.
16
MR. SMOGOR: Yeah, sorry.
17
MS. WILLHITE: Well, I was just going
18 to say -- because when we went through all those
19 factors that were listed, and we went through a
20 discussion of what things have changed or what
21 things may have improved, because of those types of
22 improvements in the system, we have higher
23 expectations, and we're talking about a very small
24 scale here. A higher expectation is what a system
L.A. REPORTING (312) 419-9292
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1 can achieve for Aquatic Life protection.
2
MS. TIPSORD: Miss Willhite, when
3 you're talking about going through the factors, are
4 you talking about the UAA factors?
5
MS. WILLHITE: Oh, I'm sorry. I was
6 referencing the Question B 1 that we discussed of
7 Midwest Generation's questions.
8
MS. TIPSORD: Okay. The factors of
9 Page 19.
10
MS. WILLHITE: Thank you. That was
11 it.
12
MR. FORT: Where was that?
13
MS. TIPSORD: Page 19 in the Statement
14 of Reasons.
15
MR. FORT: Got it.
16
MS. TIPSORD: 19 on to 20.
17
MS. FRANZETTI: We don't want to go
18 back over. The were few things there that were
19 noted as having some improvement. Okay. Am I on 1
20 B, or did I already ask --
21
MS. TIPSORD: No.
22
MR. FORT: I think you were --
23
MS. FRANZETTI: Okay. Given the
24 constraints and structures identified in the CAWS
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1 UAA report, why does Illinois EPA believe the
2 aquatic community in the CAWS will respond
3 positively to more restrictive thermal water quality
4 standards?
5
MR. SULSKI: Well, we're not just
6 looking at thermal, we're looking at dissolved
7 oxygen as well. So we're looking at a combination
8 of those, and based on the habitat and improvement
9 in those in those chemical conditions, it's our
10 overall feeling that the aquatic habitat will
11 improve.
12
MS. FRANZETTI: Okay. And when you
13 make reference to habitat, you are, though, at least
14 conceding that it's poor habitat?
15
MR. SULSKI: Yes.
16
MS. FRANZETTI: Okay. Can you provide
17 us any quantification of to what extent you think
18 you are get -- going to get an improved aquatic
19 community in the proposed aquatic life use B waters?
20 Can you give us some sense of where you think it's
21 going to be significant, how many more species do
22 you think you're going to see out there than you see
23 today, a bit more specific about other than just "we
24 think it's going to improve with lower temperature
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1 and better D.O. levels."
2
MR. SULSKI: Well, I'd like to look at
3 -- or I invite you to look at the CAWS report, where
4 -- where they look -- Attachment B -- where they
5 compared existing habitat values and existing IBI
6 scores, and saw where the IBI fell in relationship
7 to the habitat, and saw where there was some room
8 for improvement, and then through the UAA process
9 looked at the stressors that may be interfering with
10 those improvements and on and on. That's what the
11 UAA process is. So where there's a disparity
12 between habitat on aquatic life, there's room for
13 improvement for -- you know.
14
MS. FRANZETTI: But that's what's
15 confusing. You're agreeing the habitat's poor. So
16 -- and there's no -- you know, that was the point of
17 these questions that your consultant's saying that's
18 not going to change in this area of the CAWS from
19 the -- for which you proposed aquatic life use B.
20 So how does the aquatic community improve if your
21 habitat isn't going to change at all?
22
MS. WILLIAMS: By "this area," are you
23 talking about just use B waters?
24
MS. FRANZETTI: Yeah.
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1
MS. WILLIAMS: Or the whole CAWS?
2 Okay.
3
MS. FRANZETTI: No.
4
MR. TWAIT: The proposed thermal
5 standards were based on the protection of a
6 representative species list with eight species, and
7 so we think we're protecting the existing aquatic
8 life.
9
MS. FRANZETTI: So, Mr. Twait, that's
10 what it goes back to? I mean, because that's now --
11 that's now I think the second time that when I'm
12 pressing for the why, why is it gonna get better out
13 there aquatically, when no habitat's going to get
14 any better, which is a main driver for your aquatic
15 life, we keep coming back to this representative
16 aquatic species list, and that's Mr. Yoder's work;
17 correct?
18
MR. TWAIT: Yes.
19
MS. FRANZETTI: All right. And so
20 that's -- I think what I'm getting at is I think
21 perhaps I should hold further pursuit of this
22 question until questioning Mr. Yoder on his whole
23 methodology, because it sounds like you're telling
24 me a lot of your beliefs about what's going to
L.A. REPORTING (312) 419-9292
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1 happen in the future based on these proposed uses
2 and proposed water quality standards for thermal
3 comes down to Mr. Yoder's methodology. Is that
4 correct?
5
MR. TWAIT: Yes, along with my
6 interpretation of his work.
7
MS. FRANZETTI: Okay.
8
MS. TIPSORD: Mr. Ettinger?
9
MR. SULSKI: Could I add to that? You
10 know, we're still talking about D.O. as a stressor?
11
MS. FRANZETTI: Mm-hmm.
12
MR. SULSKI: Okay. And we've measured
13 it. We've measured against secondary contact
14 standards, againt general use standards, which we
15 did in these reports, and D.O. is depressed and it
16 is a stressor. It's a stressor, along with
17 temperature, and temperature and D.O. have a
18 stressor interaction, which makes them probably more
19 than additive.
20
So we're improving both of those
21 -- we're suggesting improving both of those
22 situations so that that system can meet its aquatic
23 potential. If you keep those stressors knocking
24 down, you know, it's kind of like going into a crowd
L.A. REPORTING (312) 419-9292
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1 with a stick and waiving it, you know, and if
2 there's a hornet's nest nearby, poking the hornet's
3 nest. It's not just -- it's all these factors.
4 You're just keeping them away. So --
5
MS. FRANZETTI: I guess, Mr. Sulski,
6 the part I struggle with understanding is if they've
7 got no place to live, there is no good habitat, it's
8 poor --
9
MR. SULSKI: It's -- it's --
10
MS. FRANZETTI: -- how significantly
11 can it improve out there?
12
MR. SULSKI: The habitat is based, on
13 a large part, where they can spawn, where they can
14 have full life reproduction abilities, and we've --
15 we've acknowledged that in aquatic life B waters,
16 CAWS B waters, that there isn't a lot of habitat for
17 raising families there, but we still have the
18 ability to allow for fish growth and other factors
19 that can occur in whatever is there.
20
MR. ETTINGER: Well, that's my
21 question. Are there fish there now? Are there now
22 fish in the Sanitary --
23
MR. SULSKI: Yes.
24
MR. ETTINGER: And the -- your reports
L.A. REPORTING (312) 419-9292
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1 studied the fish aquatic life that is now in the
2 Sanitary --
3
MR. SULSKI: Yes.
4
MR. ETTINGER: -- Ship Canal. So
5 despite this lack of habitat, there is a range of
6 fish that are living there now?
7
MR. SULSKI: Yes.
8
MR. ETTINGER: And those fish, that
9 aquatic life now, is at least potentially -- we'll
10 argue about it later -- being effected by the
11 dissolved oxygen and heat levels present in the
12 system now. Is that correct?
13
MR. SULSKI: Yes, potential.
14
MR. ETTINGER: Thank you. Also, I
15 just want to clarify another point here. We say --
16 keep talking about changing the standard and what
17 effect that will have. Does changing the standard
18 cause the water to get clean in and of itself?
19
MR. FORT: Are you talking about the
20 standard --
21
MR. SULSKI: You mean the use?
22
MR. FORT: The use.
23
MR. ETTINGER: Yeah. What is changing
24 -- well, actually, the use is part of what we call
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1 water quality standards, but does changing the use
2 designation in itself change the water quality?
3
MR. TWAIT: No.
4
MR. ETTINGER: So we're looking down
5 the road at doing something different in terms of
6 our operations in order to attain that use. Is that
7 correct?
8
MR. TWAIT: Correct.
9
MR. ETTINGER: Okay. And that will
10 have to be worked out in terms of future NPDS
11 permits and other issues like that. Is that
12 correct?
13
MR. TWAIT: Yes.
14
MR. ETTINGER: Thank you.
15
MS. FRANZETTI: Is the point of those
16 questions to say that it's -- that I did not see any
17 delayed effective date proposed for either the
18 thermal or the D.O. standards in this proposed
19 rulemaking. Is there one?
20
MR. TWAIT: At this time, I don't
21 believe so.
22
MS. FRANZETTI: So these are going --
23 if adopted by the Board, these are immediately
24 effective; correct?
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: Unless a delayed effect of
2 data is --
3
MS. FRANZETTI: Right.
4
MR. TWAIT: -- submitted to the Board.
5
MS. FRANZETTI: Which you have not
6 proposed?
7
MR. TWAIT: We have not.
8
MS. FRANZETTI: Do you intend to
9 propose one D.O. and/or thermal standards?
10
MR. TWAIT: I would think it's
11 probably necessary.
12
MS. FRANZETTI: Okay. I'm sorry. I
13 did not expect that answer. I'll be very candid.
14 Because I would've thought it would have been
15 somewhere in the proposal.
16
MR. TWAIT: Well, the Agency did not
17 want to give a particular date for achieving these
18 two water quality standards until someone suggested
19 to the Agency or the Board what an appropriate
20 amount of time is.
21
MS. FRANZETTI: I have a suggestion,
22 and I go with about 30 years.
23
MR. ETTINGER: Or until they close
24 their plants.
L.A. REPORTING (312) 419-9292
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1
MS. WILLIAMS: The Agency's opening
2 hearings will be done within 30 years, so...
3
MR. ETTINGER: The NPDS permit writing
4 process has provisions for allowing variances, does
5 it not?
6
MR. TWAIT: Compliance schedules, yes.
7
MR. ETTINGER: Right. And that could
8 be a number of years, could it not?
9
MR. TWAIT: It can be a maximum of
10 three.
11
MR. ETTINGER: Correct. And there's
12 also a possibility of site-specific relief. Is that
13 true?
14
MR. TWAIT: Yes.
15
MR. ETTINGER: Thank you.
16
MR. ANDES: Just to follow up, you
17 said that -- I think you said earlier that federal
18 law allows no more than three years for a compliance
19 schedule?
20
MS. FRANZETTI: It does not.
21
MR. ANDES: This is an earlier
22 statement.
23
MR. TWAIT: It allows three years for
24 a compliant schedule that's put into an NPDS permit.
L.A. REPORTING (312) 419-9292
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1
MR. ANDES: Okay. Since I know that's
2 not accurate -- I'm sorry, but can you give me an
3 authority for that? Other states -- the Illinois
4 discharges and the great lake spacing can have up to
5 five years. Are you aware of that?
6
MR. TWAIT: No, I was not.
7
MR. ANDES: And EPA in law provides
8 ten years compliance schedules in California.
9
MR. TWAIT: In NPDS permits?
10
MR. ANDES: Yes.
11
MR. TWAIT: I did not know that.
12
MR. ANDES: Okay. Well, we can get
13 EPA up there at some point to talk about compliance
14 schedules. I think we might need to do that at some
15 point.
16
MS. FRANZETTI: And I'm sorry. I
17 don't mean beat a dead horse, but I want to make
18 sure I understand this important concept.
19 Basically, the Agency wants people -- the parties
20 that are participating in this proceeding, and, I
21 guess, I imagine the Board as well, can propose to
22 delay the effectiveness of the thermal and D.O.
23 standards for aquatic life use B, assuming we can
24 support that with some logic. You are open to that
L.A. REPORTING (312) 419-9292
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1 is what I think I hear you saying, but I want to be
2 sure.
3
MR. TWAIT: I think we expected that
4 as an outcome, but we did not propose it.
5
MS. FRANZETTI: Why did you expect it
6 as an outcome?
7
MR. TWAIT: Just because I don't think
8 that the district can increase the D.O. overnight,
9 and nor do I think that the generation facilities or
10 industrialists could put cooling towers or other
11 types of things to reduce heat over night.
12
MS. FRANZETTI: Okay. So basically,
13 Mr. Twait, what you're saying -- what you're saying
14 is you think it would be reasonable in order to
15 allow time to comply to delay the effective date?
16
MR. TWAIT: I think an appropriate
17 amount of time could be -- could be found, and that
18 would probably be somewhere more than a year and
19 less than 30.
20
MS. FRANZETTI: Okay. All right.
21
MR. TWAIT: But I --
22
MS. FRANZETTI: But if I understand
23 correctly, are you also influenced by the fact in
24 saying that? Are you also influenced by the fact
L.A. REPORTING (312) 419-9292
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1 that you do have these irreversible-type conditions
2 in the use B, the proposed use B, waters like the
3 Sanitary and Ship Canal?
4
MR. SULSKI: With respect to the last
5 question?
6
MS. FRANZETTI: Yeah. What I'm trying
7 to understand is the fact that you feel it should be
8 considered not to make the proposed thermal and D.O.
9 standards immediately effective, influenced by the
10 nature of the waterway, as well as how much time it
11 may take --
12
MR. SULSKI: No.
13
MS. FRANZETTI: -- the district or
14 Midwest Gen to comply. No.
15
MR. SULSKI: No. The UA -- no. Are
16 you happy with that?
17
MS. FRANZETTI: Yeah. I'm looking for
18 clarity in trying to understand why the Agency
19 didn't propose delayed effective dates for either of
20 those two standards, but now it's telling us it
21 expected them, and I'm just trying to understand
22 why. Okay.
23
MS. TIPSORD: All right. We have a
24 question in the back room.
L.A. REPORTING (312) 419-9292
232
1
MS. HALLS: I have a comment on the
2 delayed standards. This is Linda Halls from EPA.
3
MS. TIPSORD: If you have a comment, I
4 have to swear you in. You have to ask a question.
5
MS. FRANZETTI: Can we hold comments
6 for --
7
MS. TIPSORD: You don't want to be
8 sworn in?
9
MS. HALLS: No. I mean, never mind.
10
MS. TIPSORD: Okay. Go ahead, Mr.
11 Diamond.
12
MR. DIAMOND: This is Tom Diamond
13 again. Mr. Twait --
14
MS. TIPSORD: You need to speak up,
15 please.
16
MR. DIAMOND: Earlier you said that
17 the reason for the temperature standards in the CAWS
18 use B reaches, you said it comes back to Yoder's
19 testimony in your interpretation of his work. What
20 is your interpretation of his work?
21
MR. TWAIT: When -- when MBI was
22 tasked to perform a -- or to give us temperature
23 standards, he came up with different options, and
24 gave the Agency latitude to use those options in
L.A. REPORTING (312) 419-9292
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1 developing its thermal water quality standard. He
2 didn't -- yeah. He did not recommend a specific
3 standard for a specific water body, and that's
4 detailed in the MBI report.
5
MR. DIAMOND: So, again, I'm not -- so
6 what was -- what interpretation did you apply to his
7 report? Can I have -- could we ask that the witness
8 be allowed to answer the question without always
9 being coached by counsel for the Agency?
10
MS. TIPSORD: Keep in mind that Mrs.
11 Williams has also been sworn in, and I think they're
12 conferring, not consulting.
13
MR. DIAMOND: Well, then let -- she
14 can speak and answer the question if she thinks that
15 she can answer better than Mr. Twait. It's his
16 interpretation that I'm trying to understand.
17
MR. TWAIT: Sure. And that's in my
18 testimony, and one of the things that Mr. -- or that
19 the MBI report did was suggest representative
20 aquatic life -- aquatic species, and he had several
21 categories. Some he considered what he called
22 general use with 40-some representative species.
23 There was another one that had 27 species, and there
24 was another category that had eight species, and he
L.A. REPORTING (312) 419-9292
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1 called that secondary contact. Now, we didn't
2 necessarily -- those actual -- the language of that
3 didn't actually apply. We used the eight species,
4 regardless of what he called it, for the aquatic
5 life B use, and also in -- part of that was for the
6 summer daily maximum temperatures and monthly
7 average temperatures, and he also had procedures for
8 coming up with non-summer limits.
9
MR. DIAMOND: So your interpretation
10 was as to what groups of species were appropriate
11 for which waters?
12
MR. TWAIT: That was one of our
13 options, is to decide which species were applicable.
14
MR. DIAMOND: And then the other
15 interpretation was how you adjusted temperatures for
16 certain times of the years to other times of the
17 years?
18
MR. TWAIT: His methodology used a
19 representative background site. One of our options
20 was to look at which site to use, and also how to
21 determine the monthly average and daily max during
22 the non-summer months.
23
MR. DIAMOND: Were there any other
24 interpretations that you applied to his work?
L.A. REPORTING (312) 419-9292
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1
MR. TWAIT: I think those were the
2 interpretations that -- that we -- that we used.
3
MS. TIPSORD: Can I ask a followup?
4 Mr. Twait, just to be clear, you -- these
5 interpretation, as as you said, most you do discuss
6 them in your testimony. Are there anything -- was
7 there anything you used or interpreted from his
8 report that you used to do in the proposed rule that
9 you did not discuss in your testimony?
10
MR. TWAIT: It's either in my
11 testimony, or it's in his report.
12
MS. TIPSORD: Okay. We're ready to go
13 back to Ms. Franzetti.
14
MS. FRANZETTI: Okay. I think we're
15 on roman --
16
MS. TIPSORD: Four.
17
MS. FRANZETTI: Four. Right. Four A,
18 highly use attainability analysis for the Lower Des
19 Plains, and the issue is a highly modified water
20 body. Question one: On change 22 of the Statement
21 of Reasons, the Illinois EPA states it is clear from
22 the UAA that the Lower Des Plaines River continues
23 to be a highly-modified water body that does not
24 resemble its pre-urbanized state.
L.A. REPORTING (312) 419-9292
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1
What is the intended meaning of
2 the phrase "highly modified water body" as used by
3 the Agency?
4
MR. SULSKI: The answer to that is
5 relative to the its predevelopment state.
6
MS. TIPSORD: Would that --
7 pre-urbanized?
8
MR. SULSKI: Pre-urbanized would work,
9 too.
10
MS. FRANZETTI: Can you list the key
11 aspects of the Lower Des Plaines River that you're
12 referring to as highly modified? You know, is it
13 flow, is it the channelization of it, is it -- can
14 you -- what -- you know, what is meant by a "highly
15 modified water body?"
16
MS. WILLIAMS: We would like the
17 witness to refer to the quote that's being cited in
18 the question, if that's okay.
19
MS. FRANZETTI: Sure. It's on Page 22
20 of the Statement of Reasons. It's the first full
21 paragraph.
22
MS. DIERS: I've got it. I'm looking
23 in Novotany's report.
24
MR. SULSKI: Oh, it's taken from
L.A. REPORTING (312) 419-9292
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1 Dr. Novotany --
2
MR. SULSKI: Yeah. It's a quote from
3 Aqua Nova.
4
MS. FRANZETTI: Oh, okay.
5
MS. DIERS: And that's what I just
6 want to clarify.
7
MS. FRANZETTI: Okay.
8
MR. SULSKI: In his report, that's
9 what I meant by "predevelopment state." That's what
10 the report says on --
11
MS. DIERS: Attachment A.
12
MR. SULSKI: In Attachment A on page
13 one at the top. Would you like me to read that?
14
MS. FRANZETTI: Why don't you, yes.
15
MR. SULSKI: It says, "it's clear that
16 the Lower Des Plains River is a highly-modified
17 water body that does not resemble its predevelopment
18 status.
19
MS. FRANZETTI: And we're not sure
20 exactly what doctor Novotany meant by "a highly
21 water -- modified water body?"
22
MR. SULSKI: That's correct.
23
MS. FRANZETTI: Okay. So I guess
24 we'll move on, and I don't know that I can get an
L.A. REPORTING (312) 419-9292
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1 answer to my next question, then, because it's kind
2 of based on the explanation of the meaning of the
3 "highly modified nature of the Lower Des Plaines
4 River."
5
MS. WILLIAMS: It also seems to ask
6 for an interpretation of the law, so can we just --
7
MS. FRANZETTI: Okay.
8
MS. WILLIAMS: Agree to --
9
MS. FRANZETTI: All right. I'm going
10 to agree to skip it at this point. Moving on to
11 number two, Page 20 -- again, page 22 of the
12 Statement of Reasons, the Illinois EPA states quote,
13 "While there has been improvement and potential
14 exists for additional improvement, the UAA did not
15 find the Lower Des Plaines River to be capable of
16 full attainment of the aquatic life and recreational
17 bowls of the Clean Water Act for un impacted water
18 -- waters in the foreseeable future."
19
Conversely on Page 52 of the
20 Statement of reasons, the Illinois EPA states quote,
21 "Upper Dresden Pool is capable of maintaining a
22 biological condition that minimally meets the Clean
23 Water Act's Aquatic Life goal." On Page 13 of
24 Mr. Sulski's pre-file testimony, it is stated that
L.A. REPORTING (312) 419-9292
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1 Illinois EPA is recommending three levels, a
2 biological, potential and CAWS, and the Lower Des
3 Plaines River, and two of the three levels do not
4 meet the Clean Water Act's Aquatic Life goal.
5
I think we've now established
6 this, although it was confusing in your Statement of
7 reasons, but what is the Illinois EPA's position on
8 the level of aquatic life use that the Upper Dresden
9 Pool is capable of attaining, and what's the basis
10 for that position, because you -- as this question
11 says, you say in here that "the UAA did not find the
12 Lower Des Plaines River to be capable of full
13 attainment of the aquatic life goals."
14
MR. TWAIT: The -- to clear up the
15 conflict in statement there, Page 22 of the
16 Statement of Reasons referring to Appendix A and --
17
MS. WILLIAMS: Attachment A.
18
MR. TWAIT: I'm sorry. Attachment A
19 for the Aqua Nova report. That was based on his
20 interpretation. The other two interpretations are
21 the Agency's, which are on Page 52 of the Statement
22 of reasons, and Page 13 of Rob's pre-filed
23 testimony.
24
MS. FRANZETTI: Okay. If we
L.A. REPORTING (312) 419-9292
240
1 understand correctly, what you're saying is the
2 Agency's UAA consultant for the Lower Des Plaines,
3 Dr. Doctor Novotany, concluded that Upper Dresden
4 was not capable of fully achieving the Clean Water
5 Act's aquatic goals; correct?
6
MR. TWAIT: That would be correct.
7
MS. FRANZETTI: All right. And
8 somewhere since Dr. Novotany's Attachment A UAA
9 report, the Agency concluded it disagreed with Dr.
10 Novotany; correct?
11
MR. SULSKI: Well, we looked --
12
MS. FRANZETTI: I'm just asking to
13 clarify.
14
MR. SULSKI: This talks about Lower
15 Des Plaines. We have two distinct areas of the
16 Lower Des Plaines. That's the Brandon Pool part,
17 and the Upper Dresden Island part. So we made
18 distinctions in our analysis, and I know that he did
19 as well, but the -- I guess the bottom line is that
20 our review of his report and the other information
21 that we had lead us to conclude that Upper Dresden
22 Island Pool could minimally attain Clean Water Act
23 goals, and that's the bottom line.
24
MS. FRANZETTI: If I may, I was at the
L.A. REPORTING (312) 419-9292
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1 March 2007 public meeting, and I sat and heard Toby
2 Frevort at that time, but some of you were also
3 sitting there, and you didn't disagree with him.
4 Explain that the proposed Upper Dresden Pool use was
5 something in between general use and the lower
6 aquatic life use you were proposing at that time.
7 I'm not sure if you called it use B at that time,
8 but clearly as of March, Upper Dresden was not
9 proposed to meet the Clean Water Act aquatic goals.
10 That was March, these were filed in October.
11
Can't you tell us what changed to
12 shift the Agency's position in finding to that it
13 does meet the Clean Water Act goals, albeit
14 minimally?
15
MR. SMOGOR: I don't think I was at
16 that meeting, but if it was said that the proposed
17 aquatic life use for Upper Dresden Island Pool is
18 not the same as general use, that's not the same as
19 saying it can't attain the Clean Water Act aquatic
20 life goal. There are various levels of attainment
21 once you're above that goal, so it's quite possible
22 that "general use" could be interpreted as a higher
23 level of attainment than the proposed aquatic life
24 use for Upper Dresden Island Pool, and of both of
L.A. REPORTING (312) 419-9292
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1 them represent something that meets the Clean Water
2 Act aquatic life goal.
3
MS. FRANZETTI: Okay. I understand,
4 but does anyone up there know whether it was the
5 Agency's position in March that Upper Dresden did
6 not meet the Clean Water Act aquatic life goals?
7
MR. SMOGOR: I don't know.
8
MR. SULSKI: Not mine. I don't know
9 -- I don't know that any of the Agency people said
10 that it can't meet the Clean Water Act goal.
11
MS. FRANZETTI: Did any of the Agency
12 people at that time say it could? I mean, I'm just
13 trying to understand. To the audience, things
14 changed in those six months. Maybe we all
15 misunderstood you. Fine. If that's the case, tell
16 us that?
17
MR. ETTINGER: Is there a transcript
18 of this meeting in March or something? What are we
19 -- what are we testifying about?
20
MS. FRANZETTI: I am simply trying to
21 establish did the Agency newly come to this
22 conclusion that Upper Dresden minimally meets the
23 Clean Water Act aquatic life goals, or didn't it.
24
MS. WILLIAMS: I'm not sure any of us
L.A. REPORTING (312) 419-9292
243
1 can answer that question, but what I could say to
2 add to what's been said is that as a result of
3 comments received at that meeting, from comments
4 that we have entered as Exhibit 4 to other comments
5 that were made, we did go back internally and flesh
6 out what we meant by the use designation definitions
7 in this proposal.
8
So we probably did not use the
9 same terminology at that meeting as we used in our
10 final proposal, because we had not very thoroughly
11 fleshed out how these uses were to be defined, which
12 was one of the significant comments from
13 stakeholders on all sides that we got back at that
14 time.
15
MS. DIERS: Can I just add to clarify
16 for the record that when you refer to the March --
17 you're talking about when we had our stakeholders
18 meeting in March. Is that correct?
19
MS. FRANZETTI: The public meeting.
20
MS. DIERS: The public, exactly.
21
MS. FRANZETTI: And it was more than,
22 I think, necessarily stakeholders.
23
MS. DIERS: I just wanted clarify.
24 March was on outreach meeting that we had with a
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1 proposal where a draft that we had done in January
2 was presented to various people.
3
MS. TIPSORD: Mr. Andes.
4
MR. ANDES: To clarify the comment
5 just a minute ago in terms of two different uses
6 that are to some degree above the clean water goal,
7 it sounds like what we're now saying -- and I'm
8 pretty sure this is the first time we've heard this
9 -- is that perhaps the new proposed use is a little
10 bit above the goal, and then general use is a little
11 bit higher than that. Is that -- that sounds like
12 what I'm hearing.
13
MR. SMOGOR: That's a reasonable
14 interpretation I think.
15
MR. ANDES: Is there anywhere in a
16 documentation that lays out where those three --
17 where those three lay in relation to each other, the
18 goal, the proposed standards, and the General use
19 standards so that we can understand the differences?
20
MR. SMOGOR: In our -- in our
21 Statement of Reasons, I don't think we mentioned how
22 they compare to the existing general use expectation
23 of aquatic life. I don't think we did address
24 explicitly in the Statement of Reasons.
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1
MR. ANDES: Okay. Well, then we'll be
2 asking you to do so as we go forward.
3
MS. FRANZETTI: Okay.
4
MR. ETTINGER: Can I just ask one
5 question? Are there species that you are not
6 protecting for in the Upper Dresden Pool that are
7 present in Illinois waters?
8
MR. TWAIT: For temperature, the
9 answer would be yes.
10
MR. ETTINGER: Thank you.
11
MS. TIPSORD: What about dissolved
12 oxygen?
13
MR. SMOGOR: Can you say that again
14 please, Albert? I'm sorry.
15
MS. TIPSORD: No. I asked about
16 dissolved oxygen.
17
MR. SMOGOR: I know, but I'm -- with
18 reference to his question?
19
MS. TIPSORD: Right. Are there
20 species of fish --
21
MR. SMOGOR: I'm sorry.
22
MS. TIPSORD: -- in the Dresden Pool
23 that are -- exist in other waters in Illinois that
24 you're not protecting for in the Dresden Pool for
L.A. REPORTING (312) 419-9292
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1 dissolved oxygen?
2
MR. SMOGOR: Are there species in the
3 -- sorry. I'm trying to wrap my brain around this.
4 I guess I'm still not understanding it fully. Could
5 you try it one more time, please? Sorry.
6
MS. TIPSORD: Are there fish located
7 in the Dresden Pool area that are not protected that
8 exist -- that are not protected for dissolved oxygen
9 that exist in Illinois, that are indigenous to
10 Illinois? I mean, we've been told repeatedly that
11 temperature and dissolved oxygen were the two
12 problems in that area, and the answer for
13 temperature was what Mr. Twait said.
14
MR. SULSKI: Let me try a sort answer
15 here.
16
MR. SMOGOR: Sorry. I'm just not
17 understanding that.
18
MR. SULSKI: The answer to your
19 question is yes, but I -- the -- we -- there are
20 species that exist in Lake Michigan, for example, so
21 that -- you know. But we're not talking about Lake
22 Michigan.
23
MS. TIPSORD: Right.
24
MR. SULSKI: We're talking about
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1 Inland waterways and warm water aquatic habitats.
2 In our D.O. standard, we considered the species that
3 we found in that system, and they're protected
4 for --
5
MR. SMOGOR: Just giving --
6
MR. RAO: In that system you're
7 talking about the Dresden Pool. Is that correct?
8
MR. SULSKI: Yes.
9
MR. RAO: And the species considered
10 by the Board and the reason dissolved oxygen
11 rulemaking, that was a more comprehensive list of
12 species than what you consider as a rule?
13
MR. SMOGOR: I can -- I think I
14 understand now. Got to help clarify. I'm sorry.
15 There are species that occur elsewhere in the state
16 that do not occur in the Dresden -- Upper Dresden
17 Island Pool right now that we have proposed more
18 protection for in terms of the D.O. standards. Does
19 that address your question?
20
MS. TIPSORD: Okay.
21
MR. SMOGOR: Thank you. Sorry it took
22 me to long to figure that out.
23
MS. TIPSORD: I think we're on
24 question three.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: Three. Yeah. I was
2 just reading it to myself to see whether it's been
3 answered. I think it has been.
4
MS. TIPSORD: Okay.
5
MS. FRANZETTI: Well, no. I don't
6 think it has been. On Page 94 of the Statement of
7 Reasons, the Illinois EPA states that its
8 consultants recommended the adoption of a reduced
9 biotic integrity status for the Upper Dresden Pool,
10 and that its proposed use designation is consistent
11 with the consultants recommendation.
12
So if the consultant recommended
13 the adoption of a reduced biotic integrity status
14 for Upper Dresden Pool, does this mean that the
15 proposed Upper Dresden Pool aquatic life use
16 designation is, in fact, something less than the
17 Clean Water Act's aquatic life goal?
18
MR. SULSKI: No.
19
MS. FRANZETTI: Why not? Maybe it has
20 to do with what's meant by "reduced biotic integrity
21 status." What does that mean? Maybe that's the
22 problem.
23
MR. SMOGOR: I've referred to
24 something called biological condition, and that is
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1 across the gradient, and there are more than one
2 level of biological condition or biological
3 integrity status. I think those can be used
4 interchangeably. There's more than one level of
5 those above attaining the Clean Water Act goal.
6
So you can actually reduce your
7 biological or biological integrity from point A to
8 point B -- and I should probably say from point 1 to
9 point 2 not to confuse A and B here -- from point 1
10 to point 2, and still be above or in attainment of
11 the Clean Water Act aquatic life goals. Is that --
12
MS. FRANZETTI: Yeah. I do understand
13 that.
14
MR. SMOGOR: Okay.
15
MS. FRANZETTI: Are we starting to get
16 into IBI QHEI numbers --
17
MR. SMOGOR: When you mentioned --
18
MS. FRANZETTI: As a way to give that
19 some specificity and clarity?
20
MR. SMOGOR: Yes, yes.
21
MS. FRANZETTI: All right. Can the
22 Agency tell us for Upper Dresden Pool to have met,
23 in your opinion, at least minimally, the Clean Water
24 Act aquatic life goal, what -- using IBI, QHEI
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1 sporing, what -- you know, what did it meet, in your
2 opinion, that caused you to conclude that?
3
MR. SMOGOR: We're -- again, we're
4 addressing the proposed uses as biological
5 potential.
6
MS. FRANZETTI: Right.
7
MR. SMOGOR: So existing biological
8 condition, in terms of say the fish index or biotic
9 integrity, that gives you the existing condition,
10 but it doesn't necessarily reflect potential. We
11 interpreted the habitat information in part the
12 quality of the habitat valuation of the index
13 scores.
14
MS. FRANZETTI: That's the QHEI.
15
MR. SMOGOR: QHEI.
16
MS. FRANZETTI: Okay.
17
MR. SMOGOR: As a measure of one of
18 the indicators of biological potential, and there is
19 an interpretation in the published scientific
20 literature of those scores, and if you score above
21 -- in general, in a typical situation, if you score
22 a 45 or above, that -- let me say if you score lower
23 than a 45, typically that represents an inability to
24 attain the Clean Water Act aquatic life goal.
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1
Above 45 represents the
2 possibility of attaining the Clean Water Act aquatic
3 life goal, and, if I may, between 45 and 60 is kind
4 of a gray area. Depending on additional
5 information, you may come to the conclusion that it
6 either can't -- can attain or cannot attain.
7
MR. ANDES: Can I ask --
8
MR. SMOGOR: So the score itself --
9 the score itself in the range of 45 to 60, you
10 really can't make a clean call on.
11
MS. FRANZETTI: Okay.
12
MS. TIPSORD: Mr. Andes, you have a
13 followup?
14
MR. ANDES: Can I ask is that -- those
15 numbers, is there a basis for that in Illinois for
16 regulations or guidance in terms of those dividing
17 lines?
18
MR. SMOGOR: No, not -- not -- I don't
19 know of that.
20
MR. ANDES: Where is it?
21
MR. SMOGOR: We made our
22 interpretations based on the QHEI scientific
23 literature.
24
MR. ANDES: Okay. So there's no
L.A. REPORTING (312) 419-9292
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1 regulatory basis?
2
MR. SMOGOR: Not in Illinois that I'm
3 aware.
4
MS. TIPSORD: Mr. Fort.
5
MR. FORT: Then in terms of your
6 proposal here, in terms of the scores, if a water
7 body has something below 45, 30 or so, that, in your
8 understanding, would say it does not have a habitat
9 that it can attain in any realistic scenario, the
10 Clean Water Act goals?
11
MR. SMOGOR: I wouldn't -- I wouldn't
12 say in all in 100 percent of the cases when you
13 score below 45, you cannot attain the Clean Water
14 Act goal, but as a general rule in most cases,
15 probably even go in a large majority of those cases,
16 less than a 45 represents the inability to attain
17 the Clean Water Act aquatic life goal.
18
MR. FORT: Well, and that was part of
19 your conclusions to say the Chicago Sanitary and
20 Ship Canal was poor, very poor, not going to attain,
21 met three of UAA factors?
22
MR. SMOGOR: Is that correct?
23
MR. SULSKI: That's correct.
24
MR. FORT: Okay. Thank you.
L.A. REPORTING (312) 419-9292
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1
MR. SULSKI: Not attain the Clean
2 Water Act goal.
3
MR. FORT: Got it.
4
MS. FRANZETTI: Would you mind going a
5 little further and explaining to us, because this
6 is, I think, an important point to understand.
7
MS. WILLIAMS: It's also -- aren't
8 there a lot of questions, maybe, on some of these
9 points later?
10
MS. FRANZETTI: Yeah, but this is more
11 fundamental. I'm not going to go -- I'm not going
12 to go into those specific questions yet, but when
13 one use -- when one talks about a QHEI score of 45
14 or above or 45 to 60, what I'm not sure I totally
15 understand is: Is that four -- and let's use Upper
16 Dresden Pool. Let's stay with a specific example.
17 Does Upper Dresden Pool get an QHEI score as a pool?
18
In other words, it came in at 46,
19 or is it under QHEI that you will -- depends on
20 where you sample. You know, depends on what parts
21 you go out and look at, and you score specific
22 locations, and then you get various scores per
23 location, and you have a range.
24
MR. SMOGOR: Yeah.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: Is that --
2
MR. SMOGOR: A QHEI score is specific
3 to a location.
4
MS. FRANZETTI: Okay. So depending
5 upon the locations, you go out to how
6 representatively you cover Upper Dresden Pool, when
7 attempting to establish QHEI scores, that directly
8 determines how representative the QHEI scores are of
9 Upper Dresden Pool?
10
MR. SMOGOR: Can you say that again?
11
MS. FRANZETTI: Well, let me simplify.
12
MR. SMOGOR: All right.
13
MS. FRANZETTI: If I just went out
14 there and went to one location --
15
MR. SMOGOR: Mm-hmm.
16
MS. FRANZETTI: -- and I found a score
17 of 70.
18
MR. SMOGOR: Mm-hmm.
19
MS. FRANZETTI: -- and came running
20 back to you and said, "It meets the -- fully meets
21 the Clean Water Act goals," you would say to me --
22
MR. SMOGOR: That's --
23
MS. FRANZETTI: One location doesn't
24 do it.
L.A. REPORTING (312) 419-9292
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1
MR. SMOGOR: Right, right.
2
MS. FRANZETTI: At some point, you've
3 got to hit a representative number of locations for
4 the particular water body you're trying to evaluate
5 for QHEI purposes; correct?
6
MR. SMOGOR: I think you have to make
7 an interpretation for more than one location. I'm
8 not quite exactly sure what you mean by
9 representative, but in judging the obtainability of
10 the biological condition of an area, I'm not sure
11 that if you have a few key habitat areas, that may
12 be enough to help the animals, the aquatic life in
13 that pool meet the needs and obtain a particular
14 level of biological condition.
15
MS. FRANZETTI: Okay.
16
MR. SMOGOR: I don't think you can
17 compare, you know, does 51 percent or more of the
18 tested area score at this level?
19
MS. FRANZETTI: Mm-hmm.
20
MR. SMOGOR: So I don't think you can
21 draw those types of lines.
22
MS. FRANZETTI: All right. You're
23 telling me it's not just a numbers game.
24
MR. SMOGOR: Right.
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1
MS. FRANZETTI: Got it. Okay.
2
MR. ETTINGER: Just --
3
MS. TIPSORD: Mr. Ettinger.
4
MR. ETTINGER: Just want to follow up
5 with that. If there are a few areas where fish can
6 breed in a system, and the system's not cut off by a
7 damn or something, that would enable fish to breed
8 in the whole pool; wouldn't it?
9
MR. SMOGOR: Yes, for those fish that
10 move to do their breeding.
11
MR. ETTINGER: Fish swim, right?
12
MR. SMOGOR: Yes.
13
MR. ETTINGER: Thank you.
14
MS. FRANZETTI: Okay. Moving on to
15 question four. On Page 8 of Mr. Sulski's pre-filed
16 testimony, it is stated that the consultant Aqua
17 Nova recommended aquatic life use for the Upper
18 Dresden Island Pool recognized reduced biotic
19 integrity due to impoundment.
20
If you could please explain the
21 meaning of the phrase "reduced biotic integrity due
22 to impoundment," and identify the relevant criteria
23 in Section 27 of the act, for which this information
24 applies, if you can.
L.A. REPORTING (312) 419-9292
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1
MS. WILLIAMS: I think this is kind of
2 a compound question. Can we start with the first
3 part?
4
MS. FRANZETTI: Why don't we just
5 start with -- right. Explain the meaning of the
6 phrase, "reduced biotic integrity due to
7 impoundment," as applied to the Upper Dresden Island
8 Pool.
9
MR. SULSKI: Right. And I'm just
10 having a difficulty with Novotany saying "reduced
11 biotic integrity due to impoundment." I -- you
12 know, I'm not sure.
13
MS. FRANZETTI: I'm sorry. It's in
14 your testimony. I can't help you.
15
MR. SULSKI: Well, I cited it out of
16 his report --
17
MS. FRANZETTI: But you didn't know
18 what it meant?
19
MR. SULSKI: -- that this is what he
20 said. Okay. And then if I go back to the Statement
21 of Reasons -- and this is on page 22.
22
MR. SMOGOR: Rob?
23
MR. SULSKI: Yes?
24
MR. SMOGOR: Do you mind if I try to
L.A. REPORTING (312) 419-9292
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1 address this?
2
MR. SULSKI: Not at all.
3
MR. SMOGOR: In the Attachment A
4 report, I believe that Aqua Nova was saying because
5 Upper Dresden Island Pool has some level of impact,
6 it will --
7
MS. FRANZETTI: Impact or impoundment?
8
MR. SMOGOR: Well, impoundment as an
9 example of different types of human impacts. I'm
10 just talking about impact in general, impoundment
11 being one of them mentioned specifically. Because
12 of that, you can't -- he reduced the biological
13 integrity. Level of -- biological integrity in its
14 simplest interpretation is how much human impact has
15 occurred relative to natural conditions? So a
16 reduced -- if you -- if you put impoundment into a
17 system by -- almost by definition, you're going to
18 reduce the biological integrity. I think that's
19 pretty much all he was saying in that context.
20
MS. FRANZETTI: Okay. All right.
21 With respect to impoundment as used for upper
22 Dresden Island Pool, is it right to envision it as
23 like a bathtub? I mean can you clarify for us a bit
24 what constitutes an impoundment in terms of Upper
L.A. REPORTING (312) 419-9292
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1 Dresden Island?
2
MR. SMOGOR: I don't know how the
3 author of this report was interpreting that, but
4 there is a --
5
MS. FRANZETTI: No I don't care about
6 -- so much about how he interpreted it --
7
MR. SMOGOR: There's a dam downstream
8 that affects the flow, or influences -- it changes
9 the flow from what it would've been had the dam not
10 been there.
11
MS. FRANZETTI: And is there a dam
12 upstream? In other words, is there a dam at both
13 ends of Upper Dresden Pool?
14
MR. SMOGOR: Yes, yes.
15
MS. FRANZETTI: So can I think of it
16 as a kind of bathtub where, depending upon what
17 you're doing up here at the damn above and down here
18 at the damn below, I may fill -- if I keep them both
19 closed, I'm just going to kill the water in the
20 bathtub?
21
MR. SMOGOR: I'm sorry, but you asked
22 "can you think of this as a bathtub." I --
23
MS. FRANZETTI: You would tell me not
24 to?
L.A. REPORTING (312) 419-9292
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1
MR. SMOGOR: No, I'm not going to tell
2 you how to think.
3
MS. FRANZETTI: I don't mind.
4
MR. SMOGOR: I, personally --
5 personally, I wouldn't think of it as a bathtub. I
6 don't know how else to address that. Sorry.
7
MS. FRANZETTI: I'm trying -- I'm
8 trying to understand. I guess there is no more to
9 understand than simply the amount of water in Upper
10 Dresden Pool and how it flows through it is
11 artificially controlled?
12
MR. SMOGOR: Yes, yes.
13
MS. FRANZETTI: Okay.
14
MR. ETTINGER: I don't want to ask --
15 I don't want to tell Miss Franzetti how to think,
16 too, but are you aware of the Kankakee river?
17
MR. SMOGOR: Yes.
18
MR. ETTINGER: Okay. Is it connected
19 to the Upper Dresden Pool above the Dresden lock and
20 dam?
21
MR. SMOGOR: Yes.
22
MR. ETTINGER: Thank you.
23
MS. FRANZETTI: Moving on to number
24 five, I don't think it has been answered. On Page 8
L.A. REPORTING (312) 419-9292
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1 of Mr. Sulski's pre-filed testimony, it is stated
2 that --
3
MR. SMOGOR: I'm sorry.
4
MS. FRANZETTI: No, no. If you need
5 to confer, go ahead. I can give you --
6
MR. SMOGOR: I need to learn how to do
7 it quietly.
8
MS. FRANZETTI: All right. Okay. Let
9 me try again. Question five. On Page 8 of
10 Mr. Sulski's pre-filed testimony, it is stated that
11 quote, "Illinois EPA took into account additional
12 habitat and aquatic life data not available at the
13 conclusion of the Aqua Nova's contract obligations
14 towards the Lower Des Plaines UAA. The additional
15 data is found in attachments, MM, R and S of the
16 Statement of Reasons.
17
Question A: Did the Illinois EPA
18 review of the cited additional habitat and aquatic
19 life data result in any changes to the findings
20 concerning the aquatic life use potential of the
21 Upper Dresden Pool? Yes, Mr. Sulski?
22
MR. SULSKI: There is -- the answer is
23 no, we had one finding. It was based on the UAA
24 reports and the additional data that we cite here
L.A. REPORTING (312) 419-9292
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1 and included in record. So we didn't change a
2 finding. We formulated a finding from all the
3 information that we looked over.
4
MS. FRANZETTI: So the finding --
5 you're -- what you're telling me is the finding
6 concerning the aquatic life use potential of the
7 Upper Dresden Island Pool did not change from the
8 time of your consultant's work and findings to your
9 findings as presented in this rulemaking? No
10 difference?
11
MR. SULSKI: Illinois EPA's findings,
12 which is the basis of this whole proposal, is one
13 finding, and we utilized contractors work and we
14 utilized other information, as we say in our
15 Statement of Reasons, to come up with a finding, and
16 the finding is reflected in the proposal.
17
MS. FRANZETTI: Yeah. On Page 10 of
18 Mr. Sulski's pre-filed testimony, it is stated that
19 additional habitat and aquatic life data were
20 generated by MBI and EA Engineering Science and
21 Technology, referring to Attachments S and double M
22 of the Statement of Reasons. Did the Illinois EPA
23 retain MBI to generate the additional data contained
24 in Attachment S?
L.A. REPORTING (312) 419-9292
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1
MR. SULSKI: No.
2
MS. FRANZETTI: All right. If not,
3 how did the MBI additional data come to be
4 collected, and how did the Illinois EPA receive it?
5
MR. SULSKI: We received it. I can't
6 remember if it was an email, but I'm not sure on --
7 I'm not sure the mechanism that went into the extra
8 collection of that data.
9
MS. FRANZETTI: How did you get it? I
10 mean, who'd you get it from in the email,
11 Mr. Sulski?
12
MR. SULSKI: I may have gotten in from
13 U.S. EPA, I may have gotten it directly through
14 Howard.
15
MR. ESSIG: I received it from U.S.
16 EPA.
17
MR. SULSKI: Okay.
18
MS. FRANZETTI: Thank you. Okay.
19
MR. SULSKI: Yeah.
20
MS. FRANZETTI: So Attachment S came
21 from U.S. EPA. You received -- the Illinois EPA
22 received it by email. We've got that much going.
23 When did you get it?
24
MR. ESSIG: May 9th, 2007.
L.A. REPORTING (312) 419-9292
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1
MS. FRANZETTI: Did you circulate it
2 to any of the stakeholders at the time you received
3 it?
4
MR. ESSIG: No.
5
MR. SULSKI: Not that I can recall.
6
MS. FRANZETTI: Did you circulate
7 Attachment S to any of the stakeholders at any time
8 prior to the filing of this proposed rulemaking?
9
MR. ESSIG: I did not, I don't know if
10 anybody else did.
11
MS. FRANZETTI: Can someone tell me
12 why that the decision was made not to share the
13 Attachment S information prior to this proposed
14 rulemaking?
15
MS. WILLIAMS: Well, this definitely
16 would've been a Toby question if he was here, but I
17 think the answer would be that in addition to the
18 comments that we received at the March stakeholders
19 meeting about the substance of our proposal, we had
20 a comment period after for written comments, and I
21 believe several several of the environmental groups
22 did sign a letter commenting that we should proceed
23 to hearing, that they didn't want any further delay,
24 any more meetings, that it was time to get this
L.A. REPORTING (312) 419-9292
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1 proposal before the Board, and we took that into
2 account in taking the comments that had come in, and
3 just proceeding with finalizing our proposal at that
4 time and whatever we had available at that time.
5
So when he said it came in in May,
6 it came in after that period when we were in the
7 process of finalizing our proposal and after we had
8 decided not to go to further outreach.
9
MS. FRANZETTI: Okay. Because by the
10 time you got it, you had decided no more outreach
11 was going to occur, even if it just meant forwarding
12 it on to the stakeholders you've been working with,
13 as you said, for seven years correct.
14
MS. WILLIAMS: We didn't --
15
MS. FRANZETTI: Specifically trying to
16 establish --
17
MS. WILLIAMS: We didn't -- yeah. We
18 did not specifically consider with Attachment S as
19 to whether or not the Board to the stakeholders or
20 not, specifically, but...
21
MS. FRANZETTI: Moving on to D, can
22 you explain how the IEPA took the EA engineering
23 data in Attachment double M into account in
24 determining the aquatic life use for Upper Dresden
L.A. REPORTING (312) 419-9292
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1 Pool?
2
MR. SULSKI: The information was
3 pooled with all the other information that we
4 received and had in our hands, and it was considered
5 with everything else.
6
MS. FRANZETTI: Was any of that
7 information given greater weight than any other?
8
MR. SULSKI: Not that I'm aware of.
9
MS. FRANZETTI: Moving on to E, based
10 on the Illinois EPA's review of the MBI Attachment S
11 data and the EA engineering Attachment double M
12 data, did it find that the data was consistent, or
13 were there inconsistencies between these two data
14 sets?
15
MR. SMOGOR: We did not go back to
16 that EA 2004 report and compare it directly to the
17 day we got it from 2006 from Midwest Biodiversity
18 Institute.
19
MS. FRANZETTI: All right. But you
20 reviewed them both for purposes of coming up with
21 your proposal, correct?
22
MR. SULSKI: Yes.
23
MS. FRANZETTI: Okay. But not enough
24 to say whether the data that was contained in them
L.A. REPORTING (312) 419-9292
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1 was consistent?
2
MR. SMOGOR: It was -- we didn't make
3 those direct comparisons in part because measures of
4 the two studies differed. For instance, Midwest
5 Biodiversity Institute's information in 2006
6 provided qualitative habitat evaluation index
7 scores. I'm not aware that qualitative habitat
8 evaluation index scores are in attachment MM, the EA
9 2004 report.
10
MS. FRANZETTI: Okay. So you think
11 QHEI data scores are in MBI 2006, which is
12 Attachment S --
13
MR. SMOGOR: Mm-hmm.
14
MS. FRANZETTI: Not in the EA
15 Attachment double M?
16
MR. SMOGOR: Yes.
17
MS. FRANZETTI: All right.
18
MR. SMOGOR: And I didn't -- we had
19 raw fish data from Midwest Biodiversity Institute in
20 2006, and I did not compare the raw fish data that
21 they -- when I say "raw fish data," I'm sorry --
22
MS. FRANZETTI: You don't literally
23 mean "raw fish," do you?
24
MR. SMOGOR: No, no, no. I'm sorry.
L.A. REPORTING (312) 419-9292
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1 That's jargon, that's jargon. We had information
2 about the species of fish that occur at various
3 sites and their relative numbers of individuals of
4 each of those species, and we did not compare that
5 in the MBI information to the similar fish
6 information in the EA 2004 report. Again, our focus
7 was on biological potential, not necessarily
8 existing biological conditions.
9
MS. FRANZETTI: I understand. I'm
10 just trying to understand -- I just really am asking
11 whether there were inconsistent dates between the
12 2004 and the 2006.
13
MR. SMOGOR: Not that I'm aware of --
14
MS. FRANZETTI: Got it.
15
MR. SMOGOR: -- but I didn't really
16 look that closely doing those types of comparisons.
17
MS. FRANZETTI: Okay. Madam Hearing
18 Officer, if I can digress for a moment, because with
19 respect to Attachment S, it just starts at the top
20 appendix -- or appendix one. There's no report with
21 it. It's summary-type data. Many weeks ago before
22 the end of the year, not that long after seeing the
23 Agency's filing, we, Midwest Gen, submitted a
24 question to the Illinois EPA for any report that was
L.A. REPORTING (312) 419-9292
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1 done to which this Attachment S is an appendix, any
2 raw data, underlying data, with respect to which
3 Attachment S is a summary.
4
I was told about ten days ago by
5 counsel for IEPA that they had some information that
6 was responsive to my request, and what they had
7 would be brought to the hearing and given to us. I
8 see a box under the desk. Can we just cut to the
9 chase? Did you bring anything today?
10
MS. DIERS: Actually, we do have
11 stuff, but I was waiting for Chris to be here so the
12 record was clear that we would -- but, I mean, if
13 you want it, that's fine. My thought was wait until
14 Chris was here, because it was a document that Chris
15 Yoder had to change, correct, so we made sure we
16 have the correct document here. But if you want it
17 now, we can introduce it now, I can wait until Chris
18 is here so he can go through the process --
19
MS. FRANZETTI: No. That's --
20
MS. DIERS: -- of him explaining the
21 changes.
22
MS. FRANZETTI: So he will be able --
23 he'll be able to --
24
MS. DIERS: So that's why I didn't do
L.A. REPORTING (312) 419-9292
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1 it now.
2
MS. FRANZETTI: -- explain any
3 mistakes that me made in Attachment S. But first,
4 we'd like to see the rest of Attachment S --
5
MS. DIERS: I think we have that.
6
MS. FRANZETTI: Its mistakes and
7 everything.
8
MS. WILLIAMS: Can you give us a
9 minute?
10
MS. FRANZETTI: Oh, absolutely. I've
11 given you about ten weeks. I can give you a few
12 more minutes.
13
MS. TIPSORD: We'll get this admitted
14 the to the record, and we'll -- we can go off the
15 record.
16
(Whereupon, a discussion was had
17
off the record.)
18
MS. DIERS: I have marked as Exhibit 5
19 a corrected appendix table one of the QHEI metric
20 scores for station samples in the Illinois and Des
21 Plaines River during 2006. Do you all need a copy?
22
MS. TIPSORD: Yeah, we all need a
23 copy. Okay. And, Stefanie, don't put the exhibit
24 things on --
L.A. REPORTING (312) 419-9292
271
1
MS. DIERS: Sorry.
2
MS. TIPSORD: -- because I have to
3 mark them a different way for --
4
MS. DIERS: Sorry.
5
MS. TIPSORD: -- rulemaking.
6
MS. FRANZETTI: Yeah. If I understand
7 you correctly, this is now a corrected version of
8 the portion of Attachment S that contained errors,
9 correct?
10
MS. DIERS: Correct.
11
MS. FRANZETTI: Okay. You had -- you
12 had told me that you also received a quap, right?
13 Do you have that?
14
MS. WILLIAMS: We have three.
15
MS. DIERS: Yes, I'm still going.
16
MS. FRANZETTI: Oh, I'm sorry.
17
MS. TIPSORD: All right. If there's
18 no objection, we will mark as Exhibit 5 Appendix
19 Table 1, QHEI scores for station's samples in the
20 Illinois Des Plains rivers during 2006. That's
21 first page of -- the second page is --
22
MS. DIERS: Okay. You know --
23
MS. TIPSORD: You know what? For
24 purposes, I'm going to mark the second page as
L.A. REPORTING (312) 419-9292
272
1 exhibit 6. We'll try to keep in clean. The second
2 page is table two, QHEI scores and metric values for
3 sites sampled in the Des Plaines and Illinois river
4 by MBI in 2006. If there's no objection, I will
5 mark those as Exhibits 5 and 6. Seeing none,
6 they're Exhibits 5 and 6.
7
MS. DIERS: Exhibit 7 would be a
8 document from MBI. It's the qualitative habitat
9 evaluation index field sheets, and we're going to
10 put copies back there for everyone else.
11
MS. TIPSORD: If there's no objection,
12 I'll mark what has been handed me MBI Qualitative
13 Habitat Evaluation Index Field Sheet QHEI score as
14 Exhibit No. 7. Seeing none, it's Exhibit No. 7.
15
MR. ETTINGER: Off the record.
16
(Whereupon, a discussion was had
17
off the record.)
18
MS. DIERS: For Exhibit 8, would be
19 the Qualitative Assurance Project Plan for Fish
20 Assemblies of the Lower Des Plaines River. It's
21 effective date is July 1st, 2006.
22
MS. TIPSORD: If there's no objection,
23 I'll mark that as Exhibit 8. Seeing none, it's
24 Exhibit 8. Is that everything?
L.A. REPORTING (312) 419-9292
273
1
MS. DIERS: I believe so.
2
MS. TIPSORD: Okay. All right. Then
3 before we go off the record for the end of the day,
4 is there anything else? All right. We'll start
5 morning with Midwest Gen and get through the last --
6
MS. FRANZETTI: Few questions.
7
MS. TIPSORD: -- five or six questions
8 and go on to Citgo. 9:00 o'clock tomorrow morning
9 in this room. On Wednesday, we're in 2025, but
10 9:00 o'clock tomorrow here. Thank you. Thank you
11 very much.
12
(Whereupon, a discussion was had
13
off the record.)
14
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
274
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF WILL
)
3
4
I, REBECCA A. GRAZIANO, CSR, do
5 hereby state that I am a court reporter doing
6 business in the City of Chicago, County of Cook, and
7 State of Illinois; that I reported by means of
8 machine shorthand the proceedings held in the
9 foregoing cause, and that the foregoing is a true
10 and correct transcript of my shorthand notes so
11 taken as aforesaid.
12
13
14
_____________________
REBECCA A. GRAZIANO, CSR
15
Cook County, Illinois
16
SUBSCRIBED AND SWORN TO
17 before me this ___ day
of ________, A.D., 2004.
18
19 _________________________
Notary Public
20
21
22
23
24
L.A. REPORTING (312) 419-9292