ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF:

)

3 WATER QUALITY STANDARDS AND ) R08-09

EFFLUENT LIMITATIONS FOR THE ) (Rulemakeing-

4 CHICAGO AREA WATERWAY SYSTEM ) Water)

AND THE LOWER DES PLAINES )

5 RIVER: PROPOSED AMENDMENTS )

TO 35 Ill. Adm. Code Parts )

6 301, 302, 303 and 304

)

REPORT OF PROCEEDINGS held in the

8 above-entitled cause before Hearing Officer Marie

9 Tipsord, called by the Illinois Pollution Control Board,

10 taken before Laura Mukahirn, CSR, a notary public within

11 and for the County of Cook and state of Illinois, Joliet

12 Community College, Joliet, Illinois, on the 10th day of

13 March, 2008, commencing at the hour of 10:00 a.m.

A P P E A R A N C E S

MS. MARIE TIPSORD, Hearing Officer

MR. ANAND RAO, Senior Environmental Scientist

MR. TANNER GIRARD, Acting Chairman

MR. NICHOLS MELAS

MR. THOMAS E. JOHNSON

MS. ALISA LIU

Appearing on behalf of the Illinois

Pollution Control Board

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

BY: MS. DEBORAH WILLIAMS

MS. STEPHANIE DIERS

MR. ROBERT SULSKI

MR. SCOTT TWAIT

MR. ROY SMOGOR

HEARING OFFICER TIPSORD: Good morning,

2 everyone. My name is Marie Tipsord, and I've been

3 appointed by the Board to serve as a hearing officer in

4 this proceeding entitled Water Quality Standards and

5 Effluent Limitations for the Chicago Area Waterway

6 System and Lower Des Plaines River, Proposed Amendments

7 to 35 Ill. Admin Code 301, 302, 303 and 304, Docket No.

8 R 08-9.

To my immediate right is Dr. Tanner

10 Girard. He's the presiding board member assigned to

11 this matter. To Dr. Girard's right is board member

12 Nicholas J. Melas, to his right one of our technical

13 staff Anand Rao, and then Alisa Liu at the end of the

14 table here. To my immediate left is board member Thomas

15 Johnson.

Before we begin, on March 4, 2008, the

17 Agency filed several documents with the Board along with

18 a motion for leave to file a limited number of copies.

19 That motion is granted. For those of you who don't,

20 haven't looked at our website, John scanned those

21 immediately, and they are attached and available on our

22 website. I also told the Agency today if those

23 documents are documents that we begin to refer to while

24 questioning the witnesses, we will enter them as

1 exhibits for ease of the record. And, as I told you

2 before we went on the record, we have been unable to

3 secure rooms for the hearings currently scheduled April

4 23 and 24. We'll probably have to reschedule those

5 days, and we'll talk about that on Wednesday when we see

6 how far we've gotten with the IEPA.

This is the second hearing, second set

8 of hearings to be held in this proceeding. The purpose

9 of today's hearing is to continue with the questioning

10 of the proponent, the Illinois Environmental Protection

11 Agency. I will have the Agency introduce the witnesses

12 and they will be sworn in. Then I understand the Agency

13 has some exhibits that we're going to put into the

14 record, and we'll go from there. After we've got all

15 the exhibits in, we will begin with questions. And I

16 believe we left off with the Metropolitan Water

17 Reclamation District of Greater Chicago. I believe we

18 concluded on Page 16 with the District's general

19 questions, and then when we complete the District's

20 general questions, we'll go to Stepan Environmental Law

21 Policy Center, Prairie River Network, Sierra Club, Exxon

22 Mobile Oil Corporation. After we have completed the

23 general questions, we will begin with more specifics for

24 each of the witnesses, and we will start all over at the

1 beginning as we started before with Ire (ph.), Midwest

2 Gen, et cetera.

Anyone may ask a follow-up question.

4 You need not wait until your turn to ask questions.

5 There are several questions that have already been

6 answered. If you've already had your questions

7 answered, please don't hesitate to say, "Thank you.

8 That one has been answered." I do ask that you raise

9 your hand, wait for me to acknowledge you. After I've

10 acknowledged you, please state your name, whom you

11 represent before you begin your questions. Please speak

12 one at a time. If you're speaking over each other, the

13 court reporter will not be able to get your questions on

14 the record. Please note that any question asked by a

15 board member or staff are intended to help build a

16 complete record for the Board's decision and not to

17 express any preconceived notions or bias. And I know

18 we're in tight quarters. Please -- we've got -- can we

19 scoot down a little bit. We have someone who is

20 actually sitting outside the door. And, actually, is

21 there room for a couple of chairs at that table there.

I think we're ready to go ahead. The

23 Agency has some exhibits.

MS. WILLIAMS: Do you want us to -- Did you

1 say you want the us to introduce everyone as well?

HEARING OFFICER TIPSORD: Yes.

MS. WILLIAMS: I'm Deborah Williams. I'm

4 counsel for the Illinois Environmental Protection

5 Agency.

HEARING OFFICER TIPSORD: Deb, you're going

7 to have so to speak up. I can't hear you today.

MS. DIERS: I'm Stephanie Diers, counsel for

9 Illinois EPA.

MR. ESSIG: Howard Essig with Illinois EPA.

MR. SULSKI: Rob Sulski with Illinois EPA.

MR. SMOGOR: Roy Smogor, Illinois EPA.

MR. TWAIT: Scott Twait with Illinois EPA.

MS. WILLIAMS: As Marie indicated, we filed

15 some documents with the Board that were information that

16 was requested at the Chicago hearings. There are a few

17 extra copies I believe on the table over on the opposite

18 side of the room if anyone needs a copy. There's also a

19 few items that we did not have in time to file that we

20 can enter now, if that would be --

HEARING OFFICER TIPSORD: Enter those as

22 exhibits.

MS. DIERS: First we have navigation charts

24 that were requested from Chris Yoder that Mr. Yoder

1 provided to us last week that we got.

HEARING OFFICER TIPSORD: This is the

3 Illinois Waterway Navigation Charts. If there's no

4 objection, we'll mark that as Exhibit 23. Seeing none,

5 it is Exhibit 23.

MS. DIERS: Next, we have the article that

7 was requested of Mr. Yoder on the white sucker.

HEARING OFFICER TIPSORD: I've been handed

9 what is titled, White Sucker, and I'm not even trying the

10 Latin names, Embryo Development in Early Growth and

11 Survival At Different Temperatures. It's from, looks

12 like, a Canadian publication. I'll mark that as

13 Exhibit 24, if there's no objection. Seeing none, it's

14 Exhibit 24.

MS. WILLIAMS: Marie, the last thing that we

16 have is we prepared some maps. They are similar to the

17 maps that were in Attachments H and I to the proposal,

18 but they included the landmarks that were requested by

19 the Board in Exhibit 22. If you'd rather do that later

20 and go through those points, or if you just want us to

21 enter those now, we can do it. Whichever your pleasure.

HEARING OFFICER TIPSORD: Let's take care of

23 the housekeeping, and then we'll -- then everybody will

24 have it when you start talking about the points.

MS. DIERS: The first one is Chicago Area

2 Water System and Des Plaines River UAA Segment.

The next one is proposed aquatic -- oh,

4 I'll wait.

HEARING OFFICER TIPSORD: The Chicago Area

6 Waterway Systems and Des Plaines River Uaa Segments will

7 be marked as Exhibit 25 if there is no objection.

8 Seeing none, it is Exhibit 25.

MS. DIERS: The next one is Proposed Aquatic

10 Life Use Designation Maps.

HEARING OFFICER TIPSORD: The Proposed

12 Aquatic Life Use Designation I will mark as Exhibit 26

13 if there's no objection. Seeing none, it is Exhibit 26.

MS. DIERS: The last one we have is Proposed

15 Recreational Use Designation.

HEARING OFFICER TIPSORD: The Proposed

17 Recreational Use Designation we will mark as Exhibit 27,

18 if there's no objection. Seeing none, it is Exhibit 27.

And just as a reminder or everyone, the

20 Agency's testimony was all entered, as if read, as

21 exhibits. Mr. Sulski's was Exhibit 1. Am I pronouncing

22 that correctly?

MR. SULSKI: Sulski.

HEARING OFFICER TIPSORD: I'm sorry. I knew

1 it was wrong.

MR. SULSKI: I've heard worse.

HEARING OFFICER TIPSORD: Mr. Sulski's as

4 Exhibit 1, Mr. Twait's as Exhibit 2, and Mr. Smogor's as

5 Exhibit 3.

With that, did you want to offer

7 any explanation on any of these now, or did you want to

8 just proceed with questions?

MS. WILLIAMS: Can we start with -- Let's

10 get into questions, and as we get into those areas

11 again --

HEARING OFFICER TIPSORD: Based on my review

13 of the transcript, as I said earlier, I think we're on

14 Page 16 of the District's questions. I think we'll be

15 ready for Question 17, is that correct, Mr. Andes?

MR. ANDES: Correct.

HEARING OFFICER TIPSORD: Whenever you're

18 ready, go ahead.

MR. ANDES: Thank you. I'm Fred Andes from

20 Barnes and Thornberg. I'm counsel for the Metropolitan

21 Water Reclamation District of Greater Chicago, which

22 we'll refer to as the District. And first I just wanted

23 to make sure to reserve our rights to ask questions at a

24 later time both as to the materials we're just seeing

1 now and the materials that were just added to the record

2 recently since we obviously haven't had enough time to

3 review all of that information.

So let me start on Question 17, which I

5 believe is in our list of questions for Mr. Sulski,

6 though others can feel free to answer, and this question

7 is: Describe the fish and benthic invertebrate

8 communities that have potential to occur in CAWS Aquatic

9 Life Use A Waters.

MR. SMOGOR: I can address the fish part.

11 Simply it's the fish community that can attain a

12 biological condition that is still somewhat imbalanced.

MR. ANDES: Can you be more specific about

14 the particular fish?

MR. SMOGOR: At this point I can't because

16 an imbalanced community, or at least a community that

17 would meet the goal that we've set for the CAWS A

18 waters, that aquatic life use, the proposed aquatic life

19 use, it doesn't necessarily have to be one defined set

20 of species. It can be numerous combinations of

21 different species at different relative abundances.

MR. ANDES: How do you define that in

23 relation to the current community?

MR. SMOGOR: The current fish communities

1 are not attaining -- are not yet at a level biological

2 condition that would represent attainment of the aquatic

3 life goal that we've set for the CAWS A waters. I

4 believe that's correct, right, Ron?

MR. SULSKI: Yeah.

MR. ANDES: So how would that community

7 change?

MR. SMOGOR: It could change in numerous

9 ways. What you would like to see is the biological

10 condition, which could be called biological integrity as

11 well or at least a low level biological integrity. It

12 can change in several different ways to attain, for

13 example, a higher score on an indicator, an indicator

14 biological condition like a fish IBI.

MR. ANDES: So are you defining the target

16 state completely by reference to what the IBI score is?

MR. SMOGOR: I don't know if I would say

18 completely, but that, throughout this process and

19 throughout the use attainability analysis, a fish IBI is

20 one of the key indicators of the biological condition of

21 the fish community. So I imagine that would be one of

22 the useful indicators to do that.

MR. ANDES: So you haven't defined the --

24 with precision the exact community you expect to have at

1 the end of this process?

MR. SMOGOR: No, no, not -- especially not

3 in terms of, say, a fish IBI score.

MR. ANDES: And how about the benthic

5 community?

MR. ESSIG: Benthic is somewhat of a similar

7 situation in that we're looking at more of a, for what

8 the potential that we feel is for the Aquatic Life Use A

9 Waters is, again, tolerant groups and intermediately

10 tolerant groups is what we are potentially thinking that

11 that could reach that goal. Again, to give individual

12 species numbers or types, I think, is -- that would be

13 hypothetical at this point. But basically I think the

14 macrovertebrates also, like fish, do not show attainment

15 of the current condition.

MR. ANDES: Is that defined, again,

17 primarily by reference to scores?

MR. ESSIG: To a lesser extent. The

19 macrovertebrate score that was used in the CAWS system

20 is not a community-driven type of index like the IBI is.

21 We're looking at several different types of indeces, the

22 total number of taxa, the specific types of taxa, the

23 macrovertebrate biotic index that was used is

24 predominantly a tolerance-based index. So all it's

1 giving you is the tolerance to low DO and organic and

2 BOD and ammonia type situations. So it's not giving you

3 a complete look at the community as a whole in relation

4 to both not only physical but chemical problems.

MR. ANDES: So then as -- as the water body

6 moves towards the combined goal, what happens to the

7 community?

MR. ESSIG: You would expect, in this case,

9 if you're looking at the MBI of that index, that the

10 score would tend to go down more toward moderate to

11 maybe moderately intolerant range possibly; more of them

12 did range type of MBI score. Some of them were maybe

13 six, six to seven.

MR. SMOGOR: It might be helpful when for

15 the MBI as scores go down that means there's -- That

16 reflects less and less human impact. So the lower the

17 score the better. So that one works kind of opposite.

18 It might be helpful to mention that.

MR. ANDES: Thank you. I'm trying to

20 understand how the nature of the community changes. Are

21 there species that aren't there now that are going to

22 come?

MR. ESSIG: That would be the hope, yes.

MR. ANDES: Where would they come from?

MR. ESSIG: They'd be from the water shed.

2 If conditions improved well enough, the new species

3 could occur -- what I mean by new is ones that aren't

4 occurring right now or occurring in very low numbers.

5 The numbers might increase and -- but you haven't

6 defined exactly what those species are.

MR. ESSIG: No, not at this point.

MR. ANDES: Okay. Back to Mr. Sulski. On

9 Pages 16 and 17 of your testimony, you state that IBI

10 scores in the A waters generally range from 22 to 30,

11 which are expected waterways with poor to fair habitat

12 attributes while in B waters IBI scores are generally

13 below 22, which are to be expected in waters of very

14 poor to prior habitat attributes. Given the wide range

15 of IBI scores calculated for each station under Figure

16 5.2, the UAA report, which values were used to

17 categorize the CAWS?

MR. SULSKI: Well, I think Figure 5.2 and

19 the text explanation on the process that went into

20 generating kind of describes --

MS. WILLIAMS: What are you referring to?

22 Figure 5.2 of what?

HEARING OFFICER TIPSORD: I think it's

24 Attachment A, isn't it?

MR. SULSKI: Of CDM's report.

HEARING OFFICER TIPSORD: Attachment B.

MR. SULSKI: That's what you're referring

4 to, right?

MR. ANDES: Yes.

MR. SULSKI: Okay. Well, if you look at 5.2

7 and you look at the text in the report on how it was

8 generated, I think that answers your question. I could

9 go back to the report and read it, I guess.

MR. ANDES: I guess I'm asking you to

11 explain it here.

MR. SULSKI: Okay. Well, I can go along the

13 table and we can see where they plotted IBIs and QHEIs,

14 and then I can go back to the text and see how they made

15 the cut for designating the different aquatic life uses.

Because CDM, and actually all the

17 stakeholders, agreed that there was really no referenced

18 water body that could be utilized exactly for this

19 system. They took on -- well, they took on two

20 approaches: The first approach is the contractor, and

21 the Agency sat down and plotted out the values and said

22 in all your knowledge of traveling the system and

23 looking at the fish scores and looking at the MBI scores

24 and looking at the habitat and the habitat reports and

1 everything that we have in the record, where would you

2 place these things in your expert opinion as fisheries,

3 biologists and aquatic life biologists. So they drew

4 arbitrary lines.

MR. ANDES: Based on their own personal --

MR. SULSKI: Based on their own personal --

7 Based on a weight of evidence approach, weight of

8 evidence being taken into consideration, the habitat,

9 what the IBI scores are, what's intended for the future,

10 if anything, in improvements or not.

MR. ANDES: Is there any kind of clear way

12 in which they all balance the weight of evidence

13 consistently or differently?

MR. SULSKI: Well, let me continue. So

15 with -- Based on the weighted evidence, they drew

16 arbitrary lines on this graph. And then the contractor

17 decided that wasn't going to be good enough for the

18 folks involved. So I'd have to go to the text, but what

19 they did is they pooled all of the data and then they

20 took what they determined to be the most balanced and

21 highest quality location in the system. And at that

22 time, it was the early 2000, turned out to be the North

23 Shore Channel near the Wilmette control works. So you

24 can see in this Figure 5.2 where you have the range of

1 IBIs plotted and then you have a QHEI bullet right in

2 the middle of it, and that's an indication with a QHEI

3 bullet, far left side North Shore Channel Sheridan Road.

4 You have a bullet in the middle of the IBI spread, then

5 you've got an IBI spread, and that's a good indication

6 that the aquatic life in terms of fish are meeting what

7 the habitat expectations are. And from there they took

8 the top 75 percent and they struck a line there for

9 the --

MR. ANDES: So the initial cut point or

11 reference point was North Shore Channel at Sheridan

12 Road.

MR. SULSKI: Correct.

MR. ANDES: As defining what's attainable in

15 this system.

MR. SULSKI: Yes, as a reference point.

17 That was looked at as the best example of the better

18 habitat in the system. And it also was taken into

19 consideration that it's -- its IBIs fell in line with

20 what the habitat suggested it could, you know, it should

21 support.

So they drew lines based on that, and it

23 turned out that their initial arbitrary lines fell

24 exactly where their lines derived in this method that I

1 just described fell. So with that, every -- well, at

2 least the contractor was comfortable with the system of

3 delineation as they placed on this graph, and that was

4 later then presented to the stakeholders and discussions

5 occurred. I mean, that's it in as much of a nutshell as

6 I can give you. And you -- I would say go back to the

7 methodology that they used in the report to see exactly

8 how they made those -- the second method of cuts.

MR. ANDES: Okay. I think that you've

10 addressed Questions B and C and how you just explained

11 that, so let me move on to question 20.

MS. WASICK: Jennifer Wasick. I'm

13 with the Water Reclamation District of Greater Chicago.

14 For individual stations, when you have a range of IBI

15 scores that span that line that's drawn the 75th

16 percentile, was a mean or a median used to determine

17 whether to put it in the aquatic life use A or B? A

18 mean or median of the IBI scores that were collected

19 over the years for each station?

MR. SULSKI: I believe that the median of

21 the pool data was used to make the designation between

22 modified and limited, but I'd have to go back to the

23 text.

MS. WASICK: Thanks.

MR. ANDES: Question 20. On Pages 16 and 17

2 of your testimony, you discussed the fact that the IEPA

3 used QHEI and IBI values for determining proposed

4 aquatic life uses for the CAWS. Why was the abundant

5 benthic invertebrate and sediment quality data contained

6 in the UAA report not used in the process of determining

7 the aquatic life uses?

MR. ESSIG: The benthic data wasn't utilized

9 as much as it may have been able to be primarily because

10 the relationship between the habitat measures, the

11 qualitative habitat evaluation index and the fish index

12 of biointegrity that was developed in Ohio were more

13 directly related to each other. They don't tend to use

14 the -- In Ohio they have another type of index they use

15 for macrovertebrates, but it's more of a supportive

16 role. It isn't generally used in determining habitat

17 and the potential of the IBI scores. And the index that

18 was used for the macrovertebrates in this system, as I

19 mentioned before, was a tolerance based index. It

20 doesn't really look at the wide range of impacts to the

21 macrovertebrate population.

MR. ANDES: So if you'd used this particular

23 data they would have looked at the wide range of

24 impacts. Am I right?

MR. ESSIG: If you had an index that was

2 driven by other types of environmental factors besides

3 just tolerance. If you were looking at numbers of taxa,

4 certain specific groups of taxa like members of mayfly

5 (ph.) taxa, for instance, you would get a better idea

6 of the total environmental impact, both habitat,

7 chemical, and even flow. You do that more with the IBI

8 in relation to the QHEI, because they were kind of

9 developed for that purpose.

MR. ANDES: So if you had taken that

11 alternative route, you would have gotten a better

12 picture of the overall impacts. But that's not what you

13 did, correct?

MR. ESSIG: That's not the index that was

15 available at the time that was used for the

16 macrovertebrate data. That's why it was somewhat

17 limited.

MR. SULSKI: It doesn't mean it was ignored.

MR. ESSIG: It was looked at.

MR. SULSKI: Both of the contractors looked

21 at the data.

MR. ANDES: And how was it considered?

MR. SULSKI: If there's -- It's a weight --

24 Again, it's a weight of evidence approach. So you have

1 habitat as a very important bit of data to have, then

2 you have IBIs, then you have other factors that -- even

3 metrics within IBIs and metrics within habitat; and then

4 MBI or macroinvertebrate data. So you put all that

5 together and it's a weight of evidence judgment call,

6 and --

MR. ANDES: I'm sorry. I'm trying to

8 understand how the benthic data in particular was used,

9 because my impression had been that it really wasn't

10 used. It was looked at, but was it actually used in the

11 process?

MR. ESSIG: I don't think it was necessarily

13 looked at in relation to the biotic potential because,

14 as I explained, the index that was used is not looking

15 at the entire macrovertebrate community like the fish

16 index does. And there's more of a -- there has been

17 documented relationships between how the QHEI was

18 developed and the index of biotic integrity. So there's

19 a lot of key relationships that have been developed for

20 that or that have been seen in those two indeces. So

21 that is primarily used both in Ohio, I believe, and I

22 think in the UAA process to indicate the biotic

23 potential of the system. The macrovertebrate data was

24 used primarily, I think in this case, and it's my

1 interpretation of more of what's the current condition

2 in relation to what that index was designed to show

3 which is oxygen-consuming water quality problems like

4 BOD and ammonia. That's primarily what that index

5 indicates. It doesn't indicate habitat relationships,

6 per se.

MR. ANDES: So the benthic data was

8 considered in defining the current condition, but not

9 the attainable condition. Is that accurate?

MR. ESSIG: I think that that might be a

11 fair assessment.

MR. ANDES: And the sediment data.

MR. SULSKI: The sediment quality data was

14 looked at, everything that the contractors could get

15 their hands on. But it's, again, sediment determination

16 or -- determinations of sediment impact are another

17 weight of evidence, but even more complex than water

18 quality and fish inhabitat. And the data that we had

19 was mostly bulk chemistry. There are some things you

20 can do with -- if you have other parameters along with

21 that bulk chemistry, but in most cases those were

22 missing. Then you have to look at the physical

23 condition of the sediment. So, you know, in a lot of

24 cases there wasn't -- there weren't SIB analysis

1 designating what the particle sizes of the different

2 sediments are. Then you have the whole biological

3 realm, and then the biochemical realm; biochemical realm

4 being bioaccumulation. The biological realm being, you

5 know, what is the whole sediment toxicity or what is the

6 poor water sediment toxicity. And all of that sort of

7 information is needed to really make a determination.

8 So the bottom line is there wasn't enough data to make a

9 real determination on the impact of sediments on any of

10 these -- in any of these waterways. I think we went

11 through once before.

MR. ANDES: Well, I think that in our

13 discussions at the prior hearings it was discussed that

14 there weren't any sediment data or that the Agency was

15 not relying on sediment data, so I'm trying to clarify

16 that.

MR. SULSKI: No. That's not true. I mean,

18 there was sediment data, and it's in the reports and the

19 contractors looked at it. The bottom line is that they

20 said there's -- Well, you can make a couple of

21 conclusions about -- maybe one particular possible

22 conclusion about a particular site. There isn't enough

23 data or enough evidence to invoke a UAA factor for

24 sediment reasons.

MR. ANDES: I believe part of the statement

2 made at the previous hearing is that the Agency believed

3 that the sediment quality was improving despite the fact

4 that --

MR. SULSKI: That's another whole story. Do

6 you want me to reiterate that story too?

MR. ANDES: Let's go through that again and

8 we'll come back to this issue.

MR. SULSKI: Okay. So the question is the

10 sediment improving and how is it?

MR. ANDES: Right.

MR. SULSKI: Okay. Yes. We believe the

13 sediment is improving for a number of factors, for a

14 number of reasons. No. 1, the volume has gone down with

15 TARP.

MR. ANDES: The volume of?

MR. SULSKI: Solids that create sediment,

18 additional sediment. So the volume has gone down. The

19 quality of those additional contributions have improved

20 because of various programs ranging from storm water

21 programs which, you know, are designed to improve

22 quality of sediments to pretreatment programs which is

23 designed to improve the solids or quality within the

24 wastewater.

MR. ANDES: Those are qualitative

2 conclusions. Am I right? You don't have any data -- Do

3 you have any data on those issues?

MR. SULSKI: I mean, I've got data within the

5 Illinois EPA that the sludge quality and the quality of

6 the solids going into the wastewater treatment plants

7 has improved over time with the pretreatment program.

8 In fact, the District has a program now where they

9 distribute their sludge basically in an unrestricted

10 manner because of the cleanliness of it.

But back to the question, other reasons

12 that lead us to believe that the situation is improving

13 for sediments is some of the programs that we've

14 undertaken to reduce nonpoint source contamination such

15 as -- well, I mean, the Agency collects mercury

16 thermometers and gives away alcohol thermometers. We

17 have household hazardous waste collection programs which

18 removes items that could be dumped down sewers. I mean,

19 there's a whole bunch of programs that have been in

20 place for a while that would -- that are geared for

21 improving conditions and sediment is the sink for a lot

22 of those things in the past.

MR. ANDES: But the sediment data that is in

24 the UAA report was not used in deciding whether sediment

1 quality is improving. Am I right?

MR. SULSKI: The sediment data in the report

3 was not used to invoke a UAA factor. We couldn't. We

4 didn't have enough information.

MR. ANDES: That wasn't my question. My

6 question was was the sediment data used in the

7 determining whether the sediment quality is improving in

8 part of this analysis?

MR. SULSKI: Not that I'm aware of.

MR. ANDES: And is there any data the Agency

11 has available or the contractors that is not in the UAA

12 report, sediment?

MR. SULSKI: Sediment data?

MR. ANDES: Yes.

MR. SULSKI: The contract -- I can't speak

16 to the lower Des Plaines. There is some data that

17 perhaps CEM used that may not be in the report.

MR. ANDES: I'd like to see that data.

MR. TWAIT: I'd like to point out one

20 clarification. We did use one of the UAA factors for

21 sediment for cadmium. I want that reflected correctly.

MR. ANDES: Okay. Let's move on to the next

23 question. On Page 16 of your testimony, you state that

24 QHEI scores in the CAWS ALU A waters generally range

1 from 40 to 55. Why was a QHEI of 40, which includes some

2 stations that would be described as poor used as the

3 cut-off, as opposed to setting the boundary at 46 with a

4 fair habitat descriptor begins?

MR. SMOGOR: I think it might help to first

6 point out that the aquatic life use that we're proposing

7 for CAWS A waters is a somewhat imbalanced biological

8 condition because it is -- We're setting the bar less

9 than attainment of the Clean Water Act aquatic life

10 goal. So I'm assuming you're using Ed Rankin's cut-off

11 for habitat, the less than a 45 is generally --

12 generally represents conditions that cannot attain the

13 Clean Water Act aquatic life goal greater than 60, a

14 score of QHEI generally represents conditions that can

15 attain the clean water act aquatic life goal, and scores

16 between 45 and 60 you have to look a little closer

17 because that's that gray area that we talked about. So

18 it's not -- I shouldn't say -- It's not unexpected that

19 you would -- for CAWS A waters where we're setting the

20 bar less than the Clean Water Act aquatic life goal that

21 you're not going to get the best habitat. We're already

22 admitting, or it's a given that the habitat and CAWS A

23 waters is probably not much better than fair, if we want

24 to put a qualitative term on it. Does that help?

MR. ANDES: Well, I'm trying to understand

2 why the decision was made to put it at 40 instead of 46.

3 If 46 was a sort of neat dividing line in terms of a

4 goal, why 40 instead?

MR. SMOGOR: I think we're just speaking

6 generally there when we're saying generally the range.

7 And maybe in Figure 5.2 in Attachment B which is the

8 CAWS UAA. If you refer to that figure like Rob was

9 earlier and look at the QHEI scores for the waters that

10 are actually CAWS A, that's about the general range of

11 those scores. And given that CAWS A, we're setting that

12 bar a little lower. We might expect some of the waters

13 to have a little less than 45. I mean, we're not saying

14 that it can attain the Clean Water Act goal. We're

15 saying it attains something less. Exactly where that

16 line is, I really couldn't tell you, but we're talking

17 about attainment in terms of relative ability to attain,

18 we're saying upper Des Plaines island pool is above that

19 Clean Water Act line, we're saying that CAWS A waters is

20 somewhere below that Clean Water Act line, and

21 relatively CAWS B and Branden pool waters are even a

22 little bit lower than the CAWS A waters.

MR. ANDES: And that's my real question,

24 which is -- obviously the dividing line between A and B

1 makes a big difference in terms of regulatory impact.

2 I'm trying to understand why put the 40 to 45 waters in

3 A rather than B, given that neither attains the Clean

4 Water Act goals. What was the basis of putting them in

5 A instead of B?

MR. SMOGOR: Basis for? I didn't catch the

7 very last part.

MR. ANDES: What was the basis for putting

9 the waters with QHEI between 40 and 45 in A rather than

10 B?

MR. SMOGOR: I think just relatively, and,

12 again, Figure 5.2 in Attachment B shows this, that there

13 is kind of a break in the QHEI scores. That was the

14 judgment that was made. There's a break in the QHEI

15 scores and the waters that were placed into CAWS A

16 generally have the lower QHEI scores which represents

17 that they can attain a higher biological condition than

18 the waters that were put into the CAWS B Branden pool

19 group. Whether or not that's exactly -- There wasn't

20 any -- maybe this is getting better to your question.

21 There was not any exact line in QHEI scores which made

22 that decision that I'm aware of. I think the tendencdy

23 or the overall range of the CAWS A waters is to have a

24 higher QHEI score and the tendency or overall range of

1 the CAWS B waters is to have a somewhat lower QHEI

2 score.

MR. ANDES: Mr. Sulski?

MR. SULSKI: I'm going to go back to my

5 weight of evidence argument on this as well. Because if

6 you look at the system, you know, QHEIs and IBIs are one

7 thing. You also have to consider other factors. And if

8 you look at the system and you drive down the system or

9 look at the waterways, there's a stark difference in use

10 A and use B waters in that use A waters have a littoral

11 zone, they've got a shelf, they've got places for

12 aquatic life to escape. They have more tributaries that

13 aquatic life can get into and out of. When you get into

14 these use B waters, they're straight wall deep draft

15 shipping channels go straight down to a deep bottom.

16 There's not a whole lot there. So there's a -- there

17 is, you know, when you look at the weight of evidence,

18 there's a stark difference, even just visually for these

19 waterways. And if you look at the chart, there's, you

20 know, model cuts, and that started off as arbitrary cuts

21 actually fall right in line with that other evidence.

MR. ANDES: Does the Cal-Sag channel fit in

23 with that, given that it's straight well deep draft?

MR. SULSKI: Cal-Sag channel fits into that.

MR. ANDES: Even though it's an A water.

MR. SULSKI: Cal-Sag where? Oh, Calumet

3 Sag, no. I was thinking Chicago Sanitary Ship Canal.

4 Calumet Sag has some shoreline, it's got some shelves.

5 I've seen them being weighted. It's different than the

6 sanitary ship canal. It's a different system.

MR. ANDES: Even though it's primarily

8 straight wall deep draft.

MR. SULSKI: It is flanked by a littoral

10 zone. It is not straight walls drop down. There is a

11 littoral zone in the Calumet Sag channel, and there are

12 tributaries into the Calumet Sag channel. There's the

13 lower Little Calumet River.

MR. ANDES: So then those are the critical

15 factors in terms of why the Cal-Sag channels are

16 designated A?

MR. SULSKI: These are decisions that go

18 into making -- These are bits of evidence that go into

19 that weight of evidence decision, yes.

MR. ANDES: Any other factors.

MR. SULSKI: That's primarily it.

MR. ANDES: Okay. Let me move to about

23 Question B. Under what circumstances would a station

24 that scored less than a QHEI of 40 be classified as A in

1 spite of low score?

MR. SMOGOR: I think it relates to Rob's

3 other factors. QHEI alone was not being used to make

4 the final decision about attainable biological

5 conditions. There was no single QHEI cut-off that

6 defined that in and of itself. And, for instance, as

7 you can see, Cal-Sag Channel in Figure 5.2 in Attachment

8 B, I always have to get that right, appeared to score,

9 at least of the CAWS A waters based on the QHEI value,

10 appeared to score a relatively low QHEI to the rest of

11 the waters that were classified as CAWS A. But it's --

12 There's a difference in terms of other factors; namely

13 what Rob was saying. The Cal-Sag Channel is not like

14 the Chicago Sanitary and Ship Canal. They're not steep

15 walled exclusively -- primarily steep walled deep draft,

16 exclusively I should say.

MR. ANDES: Even though it's QHEI scores

18 indicate that it is comparable or -- and would not be

19 able to support a good fish population.

MR. SMOGOR: Well, the QHEI in the

21 Cal-Sag -- let's say a QHEI score of 40 is kind of like

22 in between the waters that -- the other CAWS A waters

23 that are scoring higher QHEIs, and most of the waters

24 that are in the CAWS B group.

MR. ANDES: But it is poor, correct?

MR. SMOGOR: It's poor based on Rankin's

3 qualitative cut-offs that are largely in reference to

4 attaining ability to attain or not attain clean water

5 aquatic life goal. Now, if we say what's the ability of

6 the CAWS A habitat to attain the goal that we've set for

7 it, we may slide that qualitative -- that qualitative

8 scale from good to fair to poor a little bit downward,

9 and that might bring a 40 up into the fair category in

10 terms of how good is it for attaining something less

11 than the Clean Water Act goal.

MR. ANDES: Can you point me to any place in

13 the documentation where you've done that sliding?

MR. SMOGOR: No, not explicitly I can't.

15 But that's how we're thinking of this. Because Rankin's

16 scoring cut-offs are largely in reference to asking the

17 question can this water attain the Clean Water Act

18 aquatic life goal. We're already saying that CAWS A, we

19 don't expect that it can attain that goal because it has

20 fair and maybe even into poor category qualitatively

21 speaking habitat.

MR. ANDES: So can you provide me with

23 citation to the record in terms of where your analysis

24 is of how it can attain the goal that you've designated?

MR. SMOGOR: I think that's what's in

2 Chicago -- or that's what's in the CAWS UAA, I believe.

3 That's the use attainability analysis that provides --

MR. ANDES: I didn't see -- the sliding you

5 just described you indicated wasn't anywhere in the

6 documents.

MR. SMOGOR: I'm saying that's one way you

8 can think of it. I'm not saying that that's the only

9 one that one can think and interpret it.

MR. ANDES: I need to know --

MR. SMOGOR: Fair and poor are relative

12 terms obviously, and if something is scoring a QHEI

13 between, say, Level 1 and Level 2, and you want to

14 decide do I put that into the Level 1 or do I put it

15 into Level 2, you look at other things. And you say, is

16 this water that's stored in this middle, kind of this

17 middle QHEI score, what else about this water would I

18 consider to say I'm going to put it in the Level 1 or

19 I'm going to put it in the Level 2. Well, Rob addressed

20 that. We look -- If you look at the Cal-Sag Channel,

21 for instance, it looks more like the Level 1 than the

22 Level 2, and even though it has a slightly lower score,

23 which is higher than the Level 2 score, it made sense to

24 put it into the Level 1 category.

MR. ESSIG: If I might, maybe a little

2 explanation or a little clarification. When Ed Rankin

3 did the analysis using his habitat analysis, he's not

4 just looking at the QHEI total score and where it sits.

5 He's also looking at other types of habitat attributes

6 that are part of the QHEI system; the individual

7 metrics. And what he noted was that there are quite a

8 bit of cobble and rubble along the littoral segments of

9 the Cal-Sag Channel. There's more, if you will, shore-

10 line structure in that system. And that -- those types

11 of things as well as the actual QHEI score are used to

12 kind of determine what type of use it might be able to

13 meet intentionally. So it's not just based solely on

14 it's got to be a 45 or it's got to be a 40. Those are

15 general guidelines. But you look at these different

16 habitat metrics, and of those, some of those were

17 positive habitat attributes. If I remember right, I

18 think the Cal-Sag Channel had four positive habitat

19 attributes in that system in addition to the two that I

20 mentioned. I'm not too sure what those other ones are

21 offhand. It is covered in Ed Rankin's report, which is

22 part of the record.

HEARING OFFICER TIPSORD: Just a point of

24 clarification, Mr. Essig. When you say he noted certain

1 things, that's -- you're basing that on the report that

2 he provided, not --

MR. ESSIG: Yes.

MS. WILLIAMS: Just to be clear for the

5 record, we're talking about Attachment R to the Agency's

6 proposal.

MR. ANDES: Thank you.

HEARING OFFICER TIPSORD: Go ahead, Miss

9 Franzetti.

MS. FRANZETTI: If I could just continue,

11 you've given --

HEARING OFFICER TIPSORD: You have to

13 identify yourself for the record again.

MS. FRANZETTI: Susan Franzetti, counsel for

15 Midwest Generation. You've given us a description of

16 CAWS aquatic life use B and CAWS aquatic life use A, and

17 we're going upwards, correct, in terms of attainability

18 potential with respect to those categories. So then on

19 a higher attainability is represented by your proposed

20 upper Dresden pool use designation, correct?

MR. SMOGOR: Yes.

MS. FRANZETTI: And then is an even higher

23 -- is full aquatic life goals use represented by the

24 current general use designation?

MR. SMOGOR: Yes. I'd say the lowest -- the

2 lower rung -- let me try to put it this way: Minimal

3 attainment of our current general use, we think of that

4 as minimally attaining the Clean Water Act aquatic life

5 goal.

MS. FRANZETTI: But here you segregated out

7 that minimally attaining category to create the Upper

8 Dresden Pool use, correct?

MR. SMOGOR: Yes.

MS. FRANZETTI: Okay.

HEARING OFFICER TIPSORD: Mr. Andes, before

12 you continue on, I realized just now that I forgot to

13 note at the beginning of the hearing that these

14 witnesses had all been previously sworn in this

15 proceeding and are still sworn. I just thought I better

16 get that on the record.

MR. ANDES: Thank you. Question C, and I

18 think you've explained this, at least partly.

What specific habitat metrics in the QHEI

20 for aquatic Life A Waters cause the physical habitat

21 value to be higher than in aquatic Life Use B Waters.

MR. ESSIG: Generally, it was bottom sub

23 straight of boulders, cobble, and gravel, cover metrics

24 were generally rated as moderate to extensive. In some

1 of the waters, the ripple pool development was

2 considered moderate to good. I'd have to go back to the

3 original report offhand, but I think that pretty much

4 covers it. The repairing zone would be one of the other

5 positive habitat attributes.

MR. ANDES: Thank you. Next question,

7 Question 22. On Page 18 of your testimony you state UAA

8 found that attainable uses were, in some cases, not

9 achievable without overcoming dissolved oxygen,

10 temperature and bacteria limitations. Waterway

11 aeration, waterway flow augmentation, effluent cooling

12 and effluent disinfection are the recommended options

13 for overcoming the limitations. However, you

14 acknowledge on Page 7 of your testimony the UAA Factors

15 3, 4, and 5 limit aquatic life potential and preclude

16 possibilities for safe primary contact recreation.

What is the scientific basis upon which

18 you conclude the proposed options are the cost effective

19 options for achieving the proposed use designations?

MR. SULSKI: I'm sorry. I was looking up.

21 I have a note here that your second quote -- in response

22 to the question, we made a -- we made a determination

23 that they were feasible and used elsewhere. So that's

24 basically what our determination was.

MR. ANDES: Okay. Because primary contact

2 recreation in the waterway is excluded in the IPEA's use

3 designation proposal, what leads you to conclude that

4 the benefits of effluent disinfection outweigh the cost

5 to taxpayers and overall adverse impact to the

6 environment.

MR. SULSKI: Well, we didn't perform an

8 indepth federal guidance like determination, economic

9 determination, because we didn't have the data to do it.

10 We've requested that data from the various stakeholders

11 and we don't -- We never got the data to do that.

MR. ANDES: You got substantial amounts of

13 data from the District? Am I right?

MR. SULSKI: Right. But the data wasn't

15 sufficient to perform the check analysis suggested by

16 the water quality standards guidance.

MR. ANDES: You mean a UAA cost analysis?

MR. SULSKI: Correct. Well, a standard

19 setting cost analysis.

MR. ANDES: So --

MR. SULSKI: Which reduces things to dollars

22 and cents for an individual household or an individual,

23 you know, in the population. That's what -- that's --

MR. ANDES: So the question was in terms of

1 whether the Agency had concluded that the benefits

2 outweigh the costs, am I right to say the Agency did not

3 assess whether the benefits outweigh the costs?

MR. SULSKI: Correct.

MR. ANDES: Has the IEPA studied the

6 unintended environmental consequences that will result

7 from effluent disinfection and artificial

8 suppoementation of dissolved oxygen?

MR. SULSKI: I'm not aware of the details of

10 any.

MR. ANDES: Well, for example, impacts on

12 carbon footprint from increased chemical use, air

13 emissions, et cetera.

MR. SULSKI: I haven't seen any

15 quantification. I'm not an expert along those lines.

MR. ANDES: Does IEPA believe that such

17 considerations are relevant?

MR. SULSKI: I would say yes.

MR. TWAIT: For setting water quality

20 standards, I don't know that we would consider that.

MS. WILLIAMS: But his proposal is layered,

22 so I think you should -- I mean, that question would be

23 answered based on which piece of the proposal you're

24 talking about.

MR. ANDES: Well, does the Agency think that

2 possible environmental consequences of the proposal,

3 nonwater quality consequences, are relevant in either of

4 the setting of uses or the setting of criteria, either

5 one?

MR. TWAIT: I don't think that we know. I

7 don't think that -- We have not looked at the carbon

8 footprint and related that to whether or not we should

9 protect aquatic organisms.

MR. ANDES: And you also haven't weighed it

11 against any possible disinfection benefits. Am I right?

MR. TWAIT: Correct.

HEARING OFFICER TIPSORD: Let's go off the

14 record for just a second.

(Off the record.)

HEARING OFFICER TIPSORD: Back on the

17 record.

MR. ANDES: On Page 18 of your testimony, you

19 state that in order to reduce bacteria levels, effluent

20 disinfection will be required at all domestic wastewater

21 treatment works discharging into water designated for

22 Incidental Contact and Noncontact Recreation Use. Also

23 on Page 19, you state that MWRDGC has indicated that if

24 they were to undertake disinfection in their facilities,

1 they would likely use UV treatment or be free to select

2 between any available technologies that would meet the

3 400 fecal coliforms per 100 mL requirement of 35

4 Illinois Administrative Code, Section 304.224. And I'll

5 stay with general questions here.

What bacteria level will remain in the

7 CAWS if disinfection of all MWRD plants were

8 implemented?

MR. SULSKI: Well, sometimes it would be low

10 during dry weather, other times it would be high during

11 CSO events.

MR. ANDES: But you haven't tried to

13 quantify that either, in either case?

MR. SULSKI: No. Based on the ratio of the

15 waterway to the effluent, I would imagine that the

16 waterway would be fairly close to what the effluent was

17 putting out in dry weather.

MR. ANDES: But not in wet weather?

MR. SULSKI: Correct.

MR. ANDES: To what extent will reduction of

21 bacteria concentrations to this level decrease human

22 risk of illness?

MR. SULSKI: I don't know exactly.

MR. ANDES: What is the current health risk

1 to contacts and noncontact recreators due to bacteria

2 levels in the CAWS without disinfection?

MR. SULSKI: I don't know that exactly

4 either.

MR. ANDES: I'll skip Question D which is

6 fairly specific about data, and Question E.

HEARING OFFICER TIPSORD: If we start

8 skipping individually -- Let's go ahead and ask these

9 questions. But, like I say, I think we need to keep in

10 mind there are others behind you that still have general

11 questions that will be addressed. Let's do these in

12 order. Otherwise, it will be confusing for the record.

MR. ANDES: Does IEPA have data to show that

14 effluent disinfection will result in reduction of

15 bacteria in the waterway?

MR. SULSKI: Well, we have data that shows

17 how much the treatment plants put out, and if you cut

18 that source off, just by a matter of simple flow ratios

19 you would know that it would be quite reduced.

MR. ANDES: Specific levels haven't been

21 determined. Am I right?

MR. SULSKI: CDM looked at effluent and

23 waterway bacteria and made some comparisons upstream.

24 There's a whole slew of data that the District provided

1 to show relatively cleaner situations upstream and the

2 wastewater treatment plants, high levels of bacteria at

3 the effluents and downstream for a spell. So there's,

4 you know, there's data available that could be used to

5 make that determination. I think that the contractor

6 did.

MR. ANDES: And their focus was primarily on

8 dry weather?

MR. SULSKI: They did -- I believe there's a

10 graph in here of wet and dry weather. They carved out

11 some wet weather incidences.

HEARING OFFICER TIPSORD: A graph in where?

MR. SULSKI: I'm sorry. In the CDM report,

14 Attachment B.

HEARING OFFICER TIPSORD: Thank you.

MR. ANDES: What data does IEPA have to

17 demonstrate the indicator effluent limits on the

18 District's WRPs will reduce the levels of pathogens in

19 the waterway?

MR. SULSKI: I don't know that we have data.

21 We just know that the effluents from wastewater

22 treatment plants have human-originating pathogens. And

23 it's standard practice to use indicators to show that

24 there's a kill of those pathogens, so.

MR. ANDES: Okay. Data published in

2 peer-reviewed technical literature indicates there is no

3 statistically significant correlation between pathogens

4 and indicators in surface water bodies. How does IEPA

5 protect the public by establishing effluent criteria for

6 indicators?

MS. WILLIAMS: I'm going to object at that

8 point. That seems to be -- You're not saying what data

9 you're referring to, what your review of literature

10 seems to be; either it be testifying or if you could be

11 more specific.

MR. ANDES: Okay. Are you aware of

13 technical reports about the correlation between

14 pathogens and indicators?

MR. TWAIT: Yes.

MR. ANDES: And what's your sense of the

17 conclusions from those, from that literature?

MR. TWAIT: More recently, they don't believe

19 that they are -- the indicator organisms are the best

20 ones to be using, and they're looking for additional or

21 more representative indicator organisms, U.S. EPA is

22 looking for better indicator organisms.

MR. ANDES: Okay. What evidence does IEPA

24 that the indicator effluent criteria for fecal coliform

1 will protect recreational users of the CAWS from

2 pathogen exposure and pathogen related illness?

MR. TWAIT: The use of the indicator

4 organism is only to ensure that disinfection is being

5 accomplished and not necessarily that pathogens are

6 being reduced, although that is the clear indication.

MR. ANDES: Does IEPA have data to

8 demonstrate that the effluent fecal coliform critera

9 will protect the recreational users under both dry and

10 wet weather conditions?

MR. TWAIT: No. Wet weather conditions we

12 fully expect that we're going to have high fecal

13 coliform and bacteria levels.

MR. ANDES: What data did you analyze to

15 determine the microbial pollutant loads from different

16 sources in the waterway?

MR. SULSKI: The Attachment B CDM report

18 looked at data that the District provided water quality

19 data, effluent data.

MR. ANDES: What data do you have to

21 demonstrate the microbial pollutant loads from different

22 -- do you have to demonstrate the microbial pollutant

23 loads from different sources in the waterway during dry

24 and wet weather conditions?

MS. WILLIAMS: How is this different?

MR. ANDES: I think we can assume that

3 you've already answered it.

What knowledge do you have of the relative

5 contribution of the sources other than the District's

6 effluents on microbial pollutant loads in the CAWS

7 during wet weather conditions?

MR. SULSKI: Again, it's the data that's in

9 the CDM report, Attachment B.

MR. ANDES: Can you describe the data and

11 where it's contained in the report?

MR. SULSKI: Actually, I'm looking at Pages

13 428 and 429 where I have a distinction between

14 recreation season and nonrecreation season. And I would

15 have to go through this report like I am, page by page,

16 to see if there is wet weather-related bacteria data. I

17 know that there is wet weather-related DO data and

18 some graphs, but I can't say for sure right now unless I

19 go through this entire report on whether there's a

20 distinction or a carving out of wet weather. There may

21 not be.

MR. ANDES: Well, I'd like to get a response

23 to that question eventually.

MR. SULSKI: Okay. We will.

MR. ANDES: What data does the IEPA have to

2 demonstrate that if the fecal coliforms in the

3 District's effluents meet the IEPA discharge criteria,

4 then different reaches of the waterway would be free of

5 pathogens and safer for recreational use.

MS. WILLIAMS: I think we've asked and

7 answered this both last timed and to some degree already

8 today.

MR. ANDES: I'm not sure.

HEARING OFFICER TIPSORD: I'm not sure that

11 you have.

MS. WILLIAMS: Okay.

MR. SULSKI: Well, I can't tell you that it

14 would be free of pathogens, but we believe that it'll be

15 safer for recreational users just based on the fact that

16 they're dominated by wastewater treatment plants

17 composed of human originating pathogens. And if you

18 killed even a portion of those pathogens at the end of

19 the pipe before they dominated the system, I'm assuming

20 some risk will be reduced. How much? I can't tell you.

MR. ANDES: I believe we have asked Question

22 M before. I believe that's been asked and answered.

N: Why would non-contact recreation

24 require the same bacterial criteria as incidental

1 contact recreation?

MS. WILLIAMS: Object. I'm not -- I don't

3 understand where this question is coming from where

4 there's no bacteria criteria in our report, so.

MR. ANDES: I think it's more of

6 requirements.

MS. WILLIAMS: Would you like to rephrase

8 the question related to technology requirements?

MR. ANDES: Yes. The technology-based

10 requirements apply the same, whether the water body is

11 noncontact or incidental contact, right?

MR. SULSKI: Correct.

MR. ANDES: And why is that?

MR. TWAIT: That's basically if we have a

15 water quality standard, it's my understanding that if it

16 shows that a discharger needs to disinfect, there's

17 nothing -- there's no technology that will get them

18 down -- the technology they use to disinfect will get

19 them down to 400 fecal coliform per 100 milliliters.

20 Whereas if the water quality standard was different,

21 there's no technology that could get them down to 600.

MR. ANDES: But there is no numeric standard

23 proposed.

MR. TWAIT: Correct. I'm just saying that

1 there is no difference in the effluent standard --

2 there's no -- if -- We're requiring the disinfection,

3 and there's no difference for the technology as far as I

4 understand to get them down -- either you're

5 disinfecting or you're not disinfecting.

MR. ANDES: Okay. And the legal basis for

7 requiring the disinfection is the same for both types of

8 waters.

MS. WILLIAMS: Why don't -- I would like to

10 answer this, because I think it may get us back to a

11 question that I told you I would answer later, and we'll

12 avoid me having to put it in writing.

Last time you had asked about the legal

14 basis for this effluent disinfection requirement, and I

15 just want to be clear today that our -- as we understand

16 it, our authority for that piece of the proposal is the

17 Board's rulemaking authority under Section 13(a)2 of the

18 Environmental Protection Act. I can quote briefly that

19 it allowed the Board to adopt regulations which

20 prescribe effluent standards, specifying the maximum

21 amounts or concentrations and the physical, chemical,

22 thermal, biological as appropriate here ;and radioactive

23 nature of the contaminatns that may be discharged into

24 the waters of the state as defined herein. So that

1 authority is very broad and also very specific to this

2 proposal, this piece of our proposal.

Now, I'm not sure if that answers the

4 question that you just asked, but it answered the one

5 that I was supposed to answer last time.

MR. ANDES: Well, let me follow up on that.

7 So is the Agency saying that it can prescribe an

8 effluent standard without any demonstration of need?

MS. WILLIAMS: What do you mean by need?

MR. ANDES: To protect water quality.

11 What's the target? What's the goal?

MS. WILLIAMS: Technical feasibility and

13 economic reasonableness would apply as well.

MR. ANDES: And those are the only

15 limitations? There's no need to refer to protection of

16 a numeric water quality standard or any other target?

MS. WILLIAMS: Correct. No, absolutely not.

MR. ANDES: Okay. Mr. Harley, you have a

19 follow-up?

MR. HARLEY: Yes. Keith Harley, Chicago

21 Legal Clinic, on behalf of the Southeast Environmental

22 Task Force.

Earlier today you handed out Proposed

24 Recreational Use Designation Map. Has this been entered

1 as an exhibit?

HEARING OFFICER TIPSORD: Twenty-seven.

MR. HARLEY: I call your attention to

4 Exhibit 27. You referred to a series of questions about

5 noncontact recreational waters. On this map, on

6 Exhibit 27, it's correct to state, isn't it, that the

7 noncontact recreational water on this map is the Calumet

8 River; is that correct?

MR. SULSKI: A portion of it, yes, a portion

10 of the Calumet River.

MR. HARLEY: And that noncontact

12 recreational water connects the Calumet, meaning the

13 Little Calumet, the grand Calumet, and lake Calumet to

14 Lake Michigan; is that correct?

MR. SULSKI: Correct.

MR. HARLEY: And is it correct to say that

17 there is a great deal of boat traffic or -- Strike that.

Is it correct to say that there is boat

19 traffic which leaves from points of departure within the

20 Calumet, through the Calumet River into Lake Michigan?

MR. SULSKI: That's correct, power boat

22 traffic.

MR. HARLEY: Power boat traffic. And,

24 therefore, the reason, or one justification for imposing

1 a disinfection requirement for wastewater which might be

2 entering throughout walls on the Calumet River would be

3 to protect power boaters from ingestion and dermal

4 contact of wastewater; is that correct.

MR. SULSKI: Well, there are no major

6 wastewater treatment plant effluents going into the

7 Calumet River in that reach. The use designation is to

8 identify what users, what type of recreational user is

9 protected, so. I don't mean to say it's not a good

10 question, but I need to clarify that there are no

11 effluents going into there aside from combined sewer

12 overflows.

MR. HARLEY: But in terms of the use itself,

14 there is boat traffic, recreational boat traffic, power

15 boats, which are using the Calumet River in order to get

16 to Lake Michigan; is that correct?

MR. SULSKI: Correct.

MR. HARLEY: Thank you.

MR. ANDES: Next question, and I know this

20 one is fairly specific: What are the fecal coliform

21 densities in receiving water upstream of the WRPs and in

22 major tributaries to the CAWS? To what extent do

23 pathogens in these waters contribute to the overall risk

24 to CAWS recreators?

MR. SULSKI: Well, again, sometimes they're

2 low in the summer, and they could be high in the winter

3 if you have combined sewer overflows going on upstream

4 or there's a disinfection exemption for the

5 nonrecreation season. So it's in different places in

6 terms of levels of bacteria.

MR. ANDES: Do you have data that addresses

8 this issue?

MR. SULSKI: There is data. I mean, some of

10 the points are upstream of the wastewater treatment

11 plants in the CDM report, Attachment B. So it's -- the

12 data is there.

MR. ANDES: Has there been an assessment to

14 the extent that those pathogens contribute to the

15 overall risk?

MR. SULSKI: I would have to look back at

17 the report. I know that it was considered. I know that

18 it was also considered that just by virtue of the

19 disparity and flows between upstream sources and the

20 district effluents that anything occurring upstream of

21 the District effluents is relatively insignificant.

MR. ANDES: Including CSOs?

MR. SULSKI: No. In dry weather. I should

24 clarify that. Thank you. But there are some combined

1 sewer overflows.

MR. ANDES: And storm water loads?

MR. SULSKI: There are storm water loads,

4 yes.

MR. ANDES: I think we have asked and

6 answered P. I believe we addressed that in the last

7 round of hearings.

The USEPA's Municipal Wastewater

9 Disinfection manual requires disinfection of those

10 instances where significant disinfection benefits

11 outweigh the environmental risks and costs. Have those

12 conditions been demonstrated or even considered in the

13 CAWS? And, if so, where in the record is it documented?

MR. SULSKI: Well, you know, I have a copy

15 of that manual. Could you ask the question again,

16 please?

MR. ANDES: The manual requires disinfection

18 in those instances where significant disinfection

19 benefits outweigh the environmental risks and costs.

20 And my question was whether those aspects had been

21 demonstrated or considered by the Agency.

MR. SULSKI: They have been. And, to

23 clarify, you know, whenever I see a statement regarding

24 something that USEPA puts out in a manual, if it was a

1 statement like this, they always have qualifiers, and

2 this document is filled with qualifiers on what they

3 mean by that. And they mean things like, and I should

4 say that this is before we had dechlorination and this

5 manual deals largely with chlorination. So those are

6 the types of risks they're talking about. Is it worth

7 it to kill everything in the waterway to chlorinate if

8 you're out in the middle of nowhere. So those are the

9 sorts of risks that they're pointing towards. And they

10 also say that you should consider other disinfection

11 options besides chlorine; for example, ozone and UV

12 light, which were considered in a stakeholder process

13 and by the District, so.

HEARING OFFICER TIPSORD: Mr. Sulski, just

15 for point of clarification, you are referring to the

16 USEPA's Municipal Wastewater Disinfection

17 EPA/625/1-86/021, correct?

MR. SULSKI: It's right here.

AUDIENCE MEMBER: Could you tell us the date

20 on that document?

MR. SULSKI: Well, it's 1986.

MR. ANDES: Thank you. I believe that the

23 next several questions we have addressed including 24,

24 25, 26, and 27 I think have all been asked and answered,

1 unless the Agency feels differently and would like to

2 take the opportunity to respond to any of those. I

3 think we've heard about each of them.

MS. WILLIAMS: That's fine with us.

HEARING OFFICER TIPSORD: Then in that case,

6 let's take a short break, about 10 minutes. We're going

7 to check on, I believe, that they have cafeteria here.

8 We'll check on that. We'll then go until 1:00 o'clock

9 when we break for lunch. We'll break for lunch between

10 1:00 and 2:00, come back around 2:00, and then we'll

11 have another probably 45 minutes to hour break later

12 in the afternoon for a dinner break before we come back

13 in and finish up. I've actually been told we can have

14 this room later than 8:00 o'clock, but I suspect we'll

15 all be pretty done by 8:00 o'clock, but let's shoot for

16 that.

(Short break taken.)

HEARING OFFICER TIPSORD: Then I think we're

19 ready, Mr. Andes?

MR. ANDES: Thank you. We'll start with

21 questions for Mr. Smogor. And, in the interest of time,

22 we'll skip Question 1 and go to the substantive issues.

No. 2, on Page 3, Paragraph 1 of your

24 prefiled testimony you state, "Illinois EPA proposes

1 that the lowest applicable level of biological potential

2 service as the aquatic-life life goal for the remaining

3 part of the Chicago Area Waterway System and part of the

4 lower Des Plaines River. These waters are collectively

5 called Chicago Area Waterway System and Branden Pool

6 Aquatic Life Use B Waters. This final level of

7 biological potential represents capability to maintain

8 aquatic life populations predominated by individuals of

9 tolerant types that are adaptive to the unique physical

10 conditions, flow patterns, and operational controls

11 designed to maintain navigational use, foot control, and

12 drainage functions in deep-draft steep-walled shipping

13 channels.

MS. WILLIAMS: Can we clarify at the

15 beginning of that quote, I think there's a slight

16 typographical error. Instead of Illinois EPA proposes

17 that the lowest applicable level of biological

18 potential, it says service, one word. It should be

19 serve as.

MR. ANDES: Accepted. Is the only

21 difference identified in the definitions of A and B

22 Waters is the aquatic life and B Waters reside in

23 deep-draft, steep-walled shipping channels?

MR. SMOGOR: No.

MR. ANDES: Can you expand on that a little?

MR. SMOGOR: Because these two definitions

3 are largely focussed on biological potential. That's

4 the big difference that the definitions are supposed --

5 are intended to reflect. One aspect of -- multiple

6 aspects of that potential is the fact that B waters are

7 steep-walled deep draft channels, much more so than the

8 A waters. But that's not intended to be the sole

9 difference between these two definitions.

MR. ANDES: Okay. And can you identify what

11 the other differences are? We've heard a little bit

12 about littoral zone, but I'm curious about what other

13 differences are there?

MR. SMOGOR: I don't have the details. I

15 thought maybe Howard had mentioned some of the

16 differences in individual QHEI metrics. Over all QHEI

17 scores on average are higher in CAWS A than CAWS B

18 waters. We talked about that earlier. And the various

19 metrics of the QHEI that tended to be higher or lower, I

20 don't know that offhand.

MS. WILLIAMS: I believe Howard already

22 addressed those, right?

MR. SMOGOR: I thought he did earlier.

MR. ANDES: So that's the Agency's response

1 to that question.

In terms of B and C, I guess we can ask them

3 together. Is there a definition anywhere in the Agency

4 documents of deep-draft shipping channels?

MR. TWAIT: No. I don't think we've got

6 that definition in there.

MR. ANDES: I believe that as to Question D

8 we've talked about the Cal-Sag Channel, but let's ask

9 the question more broadly. If you can explain why the

10 proposal is that Cal-Sag channel, Little Calumet River

11 and the Calumet River from the O'Brien Lock and Dam to

12 Torrence Avenue be classified as CAWS Aquatic Life Use A

13 Waters?

MR. SMOGOR: Primarily because we believe

15 that they have a physical habitat and other conditions

16 that represent a biological, an attainable biological

17 condition that's greater than that represented in the B

18 waters.

MR. ANDES: Now, on the Cal-Sag channel,

20 Mr. Sulski had talked about the fact that even though

21 the QHEIs were low, were in some cases poor, there were

22 other factors that led to designating those as -- that

23 water body as A. How about the other water bodies here.

MR. SULSKI: You want to start with the

1 Little Calumet River and then go to the Calumet River?

MR. ANDES: Sure.

MR. SULSKI: Okay. So the Little Calumet

4 River has even got -- even has a wider littoral zone.

5 It's a wider body of water for the most part, and

6 besides the cobble and rubble that was left behind when

7 the Cal-Sag Channel was dug and broken up, the Little

8 Calumet River has some sandy areas, it's got an inside

9 bend, it's got other features that would put it in this

10 category. The same with that section of the Calumet

11 River between the O'Brien Lock and the -- and Torrence

12 Avenue. One side of the shore line has got a slight

13 relief with sandy shores. There was a seep gestation

14 (sic.) over there. It's different than the upper part

15 of the Calumet River.

MR. ANDES: Is it also different in terms of

17 QHEIs? How does it rank relative to both overall scores

18 and as to individual metrics.

MR. SULSKI: You can see then on Figure 5.2

20 from Attachment B there are two sites for the Calumet

21 River: One at 130th Street and another one right at the

22 O'Brien Lock and Dam. You can see how -- you can see

23 where the QHEIs fall.

MR. ANDES: Can you explain them for the

1 record.

MR. SULSKI: Their QHEI scores fall at or

3 above the line that cuts between modified and limited.

4 And these are the Rankin scores. It's also based on our

5 knowledge of the system that this sort of habitat

6 carries through this area northward towards Torrence

7 Avenue. So Rankin went on either side of the O'Brien

8 Lock, and then we know that this sort of -- these sorts

9 of features carry through northward towards Torrence

10 Avenue.

MR. ANDES: Okay. I believe Question E has

12 been answered.

Question 3, on Pages 2 and 3 of your

14 prefiled testimony, you discuss the aquatic life use

15 designations applied to the CAWS. You testified that

16 ALU A Waters are predominated by individuals of tolerant

17 or intermediately tolerant types; while ALU B Waters

18 are predominated by individuals of tolerant types of

19 waters.

Can you define intermediately tolerant

21 aquatic life organisms?

MR. SMOGOR: The terms intolerant and

23 intermediately tolerant and tolerant, we intended, not

24 necessarily specific definitions of each, but in these

1 uses we use those as descriptive terms of relative

2 degree of balance or imbalance. The Clean Water Act

3 requires that to meet the aquatic life goal, you have a

4 balanced population of aquatic life. And if your -- if

5 you can't attain balance populations of aquatic life,

6 you are successively more imbalanced, and that's all

7 these terms were used to reflect, a common pattern of

8 how human impact creates imbalance.

MR. ANDES: And how is the imbalance

10 determined? It sounds like the Agency did not actually

11 think of specific types of organisms that are tolerant

12 or intermediately tolerant. Am I right?

MR. SMOGOR: Correct. Correct.

MR. ANDES: So when you talk about, well, it

15 was really an issue of balance, what are the aspects

16 that make it balanced or not balanced?

MR. SMOGOR: Well, we were judging it

18 largely on, again, we're looking at what is an

19 attainable biological condition in measures of --

20 protective measures of biological condition can indicate

21 whether you have relatively balanced or imbalanced

22 condition.

MR. ANDES: And which metrics are those?

MR. SMOGOR: Well, for instance, one of

1 those we looked at in terms of existing conditions is a

2 fish IBI.

MR. ANDES: A fish IBI?

MR. SMOGOR: Index of biotic integrity.

MR. ANDES: I'm trying to get into more

6 detail in terms of is there any -- any specific metric

7 within the fish IBI that actually deals with whether

8 you're seeing more tolerant species?

MR. SMOGOR: Within a fish IBI, there are

10 metrics that address that, yes.

MR. ANDES: Which ones are those?

MR. SMOGOR: It depends on your fish IBI,

13 and, off the top of my head, the Ohio boatable IBI was

14 what was being used here. I'm not sure. I'd have to

15 look that up in terms of each of the individual metrics.

16 Off the top of my head I'm not --

MR. ANDES: I'd like to get that for the

18 record so we --

MS. WILLIAMS: You'd like to get what for

20 the record?

MR. ANDES: What are the specific metrics

22 within the Ohio IBI scores that deal with the issue of

23 tolerance and presence of tolerant or intermediately

24 tolerant organisms?

MS. WILLIAMS: Thank you.

MR. SMOGOR: I don't have that off the top

3 of my head. I'm sorry.

MR. ANDES: Okay. So as I'm looking through

5 the next several questions, they may be difficult to

6 answer until you can provide that information.

MR. SMOGOR: I mean I'd also like to make it

8 clear that we weren't necessarily using that metric in

9 the Ohio IBI to define these terms. These terms, again,

10 in terms of describing what was a reasonable aquatic

11 life use were pretty much forced into a narrative; and

12 just like existing uses, the existing uses, aquatic life

13 uses that are in our standards today don't really have

14 quantitative definitions of terms. These are

15 descriptive uses of what we believe -- or descriptions

16 of what we believe are attainable biological conditions

17 in a narrative form.

MR. ANDES: What I'm trying to understand is

19 the presence or absence of a connection between the

20 definitions of the uses that relate to presence of

21 tolerant or intermediately tolerant organisms in any

22 kind of measure of whether those organisms are actually

23 there. And it doesn't sound like there's a specific

24 connection between that description of the uses and any

1 data.

MR. SMOGOR: I don't know if it was ever

3 intended that there should be or would be a specific

4 reference to quantitative indeces at this point. Again,

5 these terms are being used in a relative way, just as a

6 general description. In other words, we're trying to

7 capture a general pattern of becoming more and more

8 imbalanced. And one common manifestation of that

9 pattern is for -- is the disappearance of relatively

10 intolerant forms and the successive increasing

11 predominance of relatively more and more tolerant forms.

12 That's a very common pattern of human impact on fish

13 communities.

MR. ANDES: And are you assessing that

15 pattern specifically in these water bodies?

MR. SMOGOR: Not specifically, no. We're

17 using it only in a relative way. We know -- when we set

18 levels of biological condition, lower levels of

19 biological condition, as you go down the chain from

20 higher biological condition to lower biological

21 condition, we're representing imbalance here in terms of

22 one common pattern of imbalance. And that is as you go

23 from high biological conditions to lower and lower and

24 lower biological conditions, you lose your intolerant

1 forms and then there's an increase in the predominance

2 of the most tolerant forms as you go lower and lower,

3 and that's all that was intended in these definitions.

4 And each of the uses is -- represents a rung in that

5 progression in terms of biological conditions.

MR. ANDES: Once those categories are

7 defined and they're defined by the terms what species

8 are present, okay, the specific definitions of those

9 waters are whether they're predominated by individuals

10 of certain types, then there could be information that

11 comes out later as to what is actually present that

12 might not have any relation to where those waters were

13 initially classified because they weren't classified

14 based on looking at data concerning which species were

15 there.

MS. WILLIAMS: Is that a question?

MR. ANDES: I'm trying to make sure I

18 understand this. Because the classifications weren't

19 actually based on data concerning presence of tolerant

20 species, right.

MR. SMOGOR: Not specifically, no.

MR. ANDES: Okay.

MR. SMOGOR: Only to the point, only to the

24 degree -- My guess is we're going around circles here is

1 now that I have a list of the Ohio boatable IBI metrics,

2 there is one metric in the Ohio boatable IBI. We did

3 not rely on that metric explicitly as a cut-off or

4 anything, but there is a metric called number of

5 intolerant species and there is another metric called

6 percent tolerant species in the Ohio boatable IBI. So

7 to answer your earlier question, there are aspects --

8 and that reflects the idea that a common pattern of

9 human impact, which is what an IBI is trying to reflect

10 is human impact, one of the common patterns of human

11 impact in terms of -- in addition to other effects is

12 the loss of intolerance and the relative increase in

13 tolerance.

MR. ANDES: What weight do those two factors

15 have in the IBI scores?

MR. SMOGOR: I'm not -- if I'm counting

17 correctly here, there's about 12 metrics in the Ohio

18 boatable IBI, and those are two of the metrics.

MR. ANDES: Do they all have equal weight?

MS. DIERS: Can I ask a clarification

21 question. He's referring to Attachment B, correct, is

22 where you're getting?

MR. SMOGOR: I'm looking at a list of the

24 Ohio boatable IBI metrics from Attachment B.

MS. DIERS: Can you refer to a page number,

2 please.

MR. SMOGOR: Yes. Page 417.

MR. ANDES: Does each metric have an equal

5 weight in the score?

MR. SMOGOR: Yes.

MR. ANDES: Okay. So two out of twelve

8 relate to tolerance?

MR. SMOGOR: Yes, specifically.

MR. ANDES: Do any of the others relate to

11 it in some other way?

MR. SMOGOR: It's complicated. Yeah. These

13 metrics aren't mutually exclusive. They don't act

14 mutually exclusive from the others. Organisms that

15 contribute to some -- one metric may also contribute in

16 ways to other metrics, because organisms don't only

17 serve one role out there. They're serving multiple

18 roles. They're functioning in multiple roles.

MR. ANDES: Okay. As to Question C as to

20 describing the populations in this type of community, I

21 think that's already been answered, because I don't

22 think you really defined that.

MS. WILLIAMS: Objection.

MR. ANDES: Okay. Have you defined that,

1 that community?

MS. WILLIAMS: I was just referring to the

3 characterization of the question. I agree with you that

4 it's been asked and answered.

MR. ANDES: Fine. We'll move on. Please

6 identify the species that were included as tolerant,

7 intermediately tolerant, and intolerant that are

8 adaptive to unique physical conditions flow patterns,

9 and operational controls necessary to maintain

10 navigational use, flood control, and drainage functions

11 of the waterway system?

MR. SMOGOR: No specific classifications

13 were made.

MR. ANDES: Am I right to say as to E that

15 there are no specific species of fish that IPA has

16 identified that would be supported in A versus B waters?

MR. SMOGOR: Correct.

MR. ANDES: Okay. Does IEPA have any

19 scientific data or evidence indicating DO requirements

20 for the species that they expect to find in ALU A

21 waters?

MR. SMOGOR: We believe that these

23 requirements are addressed in the National Criteria

24 Document for dissolved oxygen USEPA 1986, which I

1 believe is Attachment X. Specifically criteria -- we

2 believe our proposed DO standards are -- consist at the

3 present time with that National Criteria Document, and

4 specifically the criteria to protect for early life

5 stages, the criteria that we've proposed that are

6 consistent with Attachment X which is the National

7 Criteria Document are set to protect for early life

8 stages as sensitive as early life stages of channel

9 catfish, and they're set to protect for later life

10 stages as sensitive as later life stages of large mouth

11 bass. And that's covered -- the basis for that and the

12 reasons for that are covered in that document, mostly

13 because of a lack of detail data on warm water species.

14 Those are two important game species, and that's why

15 there was more information on those two.

MR. ANDES: And are the EPA information

17 related to criteria that would support attainment of the

18 Clean Water Act goals?

THE WITNESS: Can you ask that again,

20 please.

MR. ANDES: Are the DO criteria in the

22 document focussed on attainment of the Clean Water Act

23 goals?

MR. SMOGOR: Yes. But there is information

1 in that document, in the National Criteria Document,

2 that addresses less than Clean Water Act goals as well.

MR. ANDES: How is that information used

4 here?

MR. SMOGOR: That information is primarily

6 -- was used for what we term our -- Again, I don't have

7 the details right at the top of my head, and I'll refer

8 you to a page in our statement of reasons which will

9 probably be the easiest place to look. Page 60 in

10 our statement of reasons, there's a table that

11 summarizes the proposed dissolved oxygen standards for

12 the various water in these proceedings. And, sorry, can

13 you ask your question again?

MR. ANDES: I mainly just wanted to

15 understand how the DO requirements in the IEPA document

16 were used in determining the requirements in the

17 proposed standards.

MR. SMOGOR: For the most part we set some

19 of the -- the DO standards occur as more than one

20 number. The DO standard, there's acute numbers and

21 there's chronic numbers, and they also apply differently

22 to whether early life stages are present versus not

23 present. For the most part, our acute numbers, which in

24 those columns it's called a daily minimum. And a

1 seven-day mean of daily minimum, which is about four

2 columns over, is also related to that daily minimum and

3 also related to preventing acutely lethal conditions.

4 For the most part, we were pretty consistent with the

5 National Criteria Document in preventing fish death. If

6 it's lethal, it's lethal. If it gets too low, it's

7 going to kill fish. So those numbers are fairly

8 consistent, as you can see, for early life stages. The

9 National Criteria Document basically says to not kill

10 early life stages of fish, you have to keep your DOs up

11 above 5 as a daily minimum. And to not kill -- to not

12 kill later life stages of fish you have to keep your DO

13 up above 3.5 as a minimum, a daily minimum. So we tried

14 to be consistent with that. The differences, as you

15 see, once we get below the Upper Dresden Island Pool,

16 the last two rows of the table, is we're providing

17 different protection in the last row and the row before

18 the last row in terms of chronic DOs. In fact, we're

19 not proposing the chronics that apply in the general use

20 waters. We believe that's also consistent with the

21 National Criteria Document that allows you to do that if

22 your goal is something less than the Clean Water Act

23 Product Life Goal.

MR. ANDES: The difference between the use A

1 waters and the use B waters is the dial lie minimum

2 requirement when the early life stages are present, the

3 criteria exists there for the A waters and not for the B

4 waters.

MR. SMOGOR: Yes.

MR. ANDES: Okay. Well, I think answers F,

7 E, and G. On H is there data or evidence of fish

8 spawning, and this is a little unclear when we say in

9 all of the waters proposed to be designated ALUA. I

10 would ask for each of the waters, designated as ALUA, is

11 there data or evidence of fish spawning.

MS. WILLIAMS: And are you conceptualizing

13 each of the waters in the same way we have as segments.

MR. ANDES: Yes.

MS. WILLIAMS: Okay.

MR. SMOGOR: Evidence of? I think there is.

17 It's based on -- We have data from MWRB fish data of

18 2001 through 2005 that we looked at, and based on small

19 sizes of some of those data -- the data basically goes

20 site by site, collection site. They sample the fish and

21 they let you know how many of each type or species of

22 fish, and they also create -- they also provide some

23 weights and size ranges. So based on the small sizes of

24 some of those individuals captured, one could deduce

1 that there must be some kind of spawning going on in

2 that -- in those waters because of the small sizes of

3 fish present. These are small sizes compared to their

4 adult size of species. In terms of the specifics,

5 again, I don't have anything right in front of me, but

6 there is presence of young fish in those waters.

MS. WILLIAMS: Mr. Smogor, are you referring

8 to data that's currently in the record somewhere?

MR. SMOGOR: No. I don't believe this is in

10 the record yet.

MS. WILLIAMS: Can we enter the data he's

12 referring to now as an exhibit?

HEARING OFFICER TIPSORD: That would be a

14 good idea. And we'll reserve the right to ask more

15 questions about it later.

And we have a follow-up.

MS. BARKLEY: I'm Tracy Barkley with Prairie

18 Rivers Network. I wonder with the sampling that MWRD

19 uses are sufficient and effective at capturing larval or

20 even younger fish?

HEARING OFFICER TIPSORD: Could we hold off

22 on that until we get this exhibit admitted.

I've been handed Metropolitan Water

24 District of Greater Chicago, a table, Total Number of

1 Fish Collected From Each Sampling Station in the Chicago

2 Area Waterway System from 2001 through 2005 as a Part of

3 the Ambient Water Quality Monitoring Program. If

4 there's no objection, we'll enter this as Exhibit No.

5 28? Seeing none, it is Exhibit No. 28. And then can

6 you answer --

MR. SMOGOR: I believe I can. And Howard

8 and Rob might be able to correct me if I'm wrong. It's

9 my understanding that the collections that are

10 represented in this exhibit now are primarily -- would

11 miss larval fish, but they can catch, and is evidenced

12 in some of the length and weight information, they can

13 catch subadult fish, but not necessarily all the way

14 down to the sides of larval fish.

MR. ANDES: Can I ask where the weight and

16 length information is? I just see total numbers.

MR. SMOGOR: I guess they're missing. We

18 had several parts of a worksheet, spreadsheet filed, and

19 this appears to be not every worksheet from that file.

20 There was a worksheet in the file that did have weight

21 and length.

MR. SULSKI: You can get it off your own

23 website.

HEARING OFFICER TIPSORD: They can. We

1 might not be able to.

MR. SMOGOR: I'm sorry. We'll have to add

3 that to this. I'm sorry.

MR. ANDES: Whether we need to get it off

5 the website or not, I need to know what the Agency is

6 relying on.

MS. WILLIAMS: Can you just explain where --

8 Is that where we obtained this data? From the website?

9 Or where did this data come from?

MR. SULSKI: The District sent a link to

11 this data to us sometime late last spring.

MR. ANDES: Late in the spring of 2007?

MR. SULSKI: Correct. And then we

14 downloaded it and it became a part of what we reviewed

15 when we formulated --

MR. ANDES: So is this the only information

17 that could relate to fish spawning?

MR. SMOGOR: As far as we can tell, yeah.

19 It's indirect evidence of spawning by just looking at

20 the sizes of each species that they caught.

MR. SULSKI: In CAWS. I want to clarify in

22 CAWS.

MR. ANDES: So if you saw a small fish, it

24 was assumed they were young?

MR. SMOGOR: Subadult sizes, yes.

MR. ANDES: Okay. And do we know whether

3 the spawning occurred in the areas where they were

4 caught or could it have occurred elsewhere?

MR. SMOGOR: We don't know for sure.

MR. ANDES: I think -- Let me ask Question

7 I, although I think you've answered part of it. Has

8 the IEPA analyzed the CAWS fish data to determine life

9 stages present in various waterways? I think I

10 understand how you've looked at younger life stages. Is

11 there anything else you can add to that?

MR. SMOGOR: I would say no, not other than

13 looking at the sizes of the fish as I've talked about.

MR. ANDES: Do the proposed designated

15 aquatic life uses for the CAWS fit within the long-term

16 fisheries management strategies that the Illinois

17 Department of Natural Resources has for the CAWS?

MR. SULSKI: I don't know what those are.

MR. SMOGOR: We don't know.

MR. ANDES: Okay. I believe that Question

21 No. 4 has been answered this morning. We talked about

22 the Cal-Sag Channel.

MR. ANDES: On Page 3, paragraph 2 of your

24 prefiled testimony, you state Illinois EPA primarily

1 bases these proposed aquatic life uses and designations

2 on direct measurements and observations of the chemical,

3 physical -- chemical and physical conditions in these

4 waters and on how foreseeable improvements in these

5 conditions or lack thereof relate to the potential

6 biological condition. Illinois EPA also considered

7 direct observations including measures of biological

8 integrity of the types, life stages, and relative

9 numbers of aquatic organisms that have lived or

10 currently live in the Lower Des Plaines River and

11 Chicago Area Waterway System. Although understanding

12 the past and present biological conditions of these

13 waters provides essential contacts, the primary

14 responsibility in defining and designating aquatic life

15 uses is to consider what level of biological condition

16 represents a reasonable and attainable goal from now

17 into the foreseeable future. My next few questions

18 relate to some of the terms used here including,

19 particularly, biological condition, reasonable goal, and

20 foreseeable future . And I wondered if you could tell us

21 how you define those for purposes of this rulemaking.

MR. SMOGOR: Biological condition is a

23 determination of how similar or dissimilar sampled

24 assemblage of organisms is from one expected to occur in

1 least impacted conditions, least impacted by humans.

MR. ANDES: Okay. So I think you've talked

3 about biological condition and reasonable goals and how

4 you've determined what goals are reasonable and what the

5 foreseeable future is.

MR. SMOGOR: As far as reasonable goal, I

7 think the only intent was there was one that made sense

8 taking into account the available information; and I

9 guess also it would have to be one that meets the

10 requirements of the Clean Water Act as well.

MR. ANDES: Okay. I believe that Questions

12 D and E have been addressed already, so I'll skip over

13 those and as to -- We have a lot of questions on the IBI

14 scores and the question there is whether we're getting

15 fairly specific in terms of these issues.

HEARING OFFICER TIPSORD: I think that,

17 yeah, let's wait on the IBI scores.

MR. ANDES: The next several questions we

19 also get into in seven, eight, are fairly specific to DO

20 standards.

HEARING OFFICER TIPSORD: Let's hold off on

22 those, on the specific standards. Let's hold off until

23 we get through the general, and then we can ask specific

24 standards.

MR. ANDES: Okay. That's fine. That can

2 run through a number of questions.

HEARING OFFICER TIPSORD: Okay. And that's

4 fine. If you want to move on to Mr. Twait and see if

5 there are any of those that can be addressed now and

6 then come back to the more specific standards questions.

MR. ANDES: Okay. Well, the first several

8 questions for Mr. Twait are also regarding certain

9 numeric water quality standards.

MS. WILLIAMS: I would think most of Scott's

11 would be since that's what his testimony was on, so.

HEARING OFFICER TIPSORD: In that case, if

13 we want to move on then to the next group of general

14 questions and then come back to the District on the more

15 specific standards.

MR. ANDES: I'm just going back to confirm

17 that.

We have some, I'd say, follow-up questions

19 on some of the issues raised in other hearings, but I

20 can fit that into issues as they come up. I think it

21 would probably make sense to move on to the next set of

22 general questions, then I'll reserve the opportunity to

23 come back later.

HEARING OFFICER TIPSORD: Great. Thank you

1 very much, Mr. Andres. Then I believe it's Stepan next?

Go ahead.

MR. DIMOND: Tom Dimond, Mayer Brown on

4 behalf of Stepan Chemical Company. I'll try to give you

5 some idea, Madam Hearing Officer, as to which ones I'm

6 going to do. I think out of Mr. Sulski's, out of the

7 questions that we've identified for Mr. Sulski, we'll do

8 1-4.

On Page 14 of your testimony, Mr. Sulski,

10 you refer to intermediately tolerant and intolerant

11 types of aquatic life that are adaptive to the unique

12 flow conditions of the Upper Dresden Island Pool.

13 Please describe what types of aquatic life are meant by

14 those terms.

MR. SULSKI: This was asked and answered.

MR. SMOGOR: I tried to address this.

MS. WILLIAMS: But we weren't talking about

18 the Dresden Island Pool specifically. So why don't we

19 just -- Is that okay, Mr. Dimond? We'll answer

20 specifically to that.

MR. SMOGOR: Again, these terms were used in

22 a descriptive sense in narrative form to reflect

23 relative degrees of balance or imbalance in the

24 structure of aquatic life communities to meet the

1 proposed -- to meet the proposed aquatic life use. The

2 Clean Water Act aquatic life use, aquatic life needs to

3 be in a balanced condition, and these terms were merely

4 used to represent a typical pattern as you go from a

5 balanced biological condition to a more and more

6 imbalanced biological condition. And one manifestation

7 of that, one typical pattern of the effects of human

8 impact on a balance system, is to first lose intolerant

9 forms and then as more and more impact occurs, there's

10 an increasing predominence of most tolerant forms.

MR. DIMOND: As you assess whether or not a

12 particular stream segment can meet a standard that

13 implies the presence of intolerant forms, do you have a

14 specific list of species that you're looking for?

MR. SMOGOR: Not at this point, no.

MR. DIMOND: Well, if you don't have a

17 specific list of species, then how can you determine

18 whether or not any particular segment has the capability

19 to meet a standard for -- that includes intolerant

20 species?

MR. SMOGOR: I think what we're trying to

22 attain is an overall level of biological condition. One

23 aspect of that is this relative -- these relative

24 differences in -- differences in the relevant numbers of

1 intolerant versus tolerant forms. That's not the sole

2 aspect of achieving the particular biological condition.

3 So we're looking for a particular level of biological

4 condition, and we've said that our proposed use based on

5 what we believe is attainable, the attainable biological

6 condition, and that's largely determined by what the

7 physical and chemical template can provide for biology

8 in that -- in the Upper Des Plaines Island Pool.

MR. DIMOND: What do you mean by the

10 physical and chemical --

MR. SMOGOR: We're looking primarily at

12 physical habitat and chemical conditions to determine

13 what's attainable in terms of the biological condition.

HEARING OFFICER TIPSORD: Miss Franzetti?

MS. FRANZETTI: If Mr. Dimond is -- Are you

16 going to move on to your next question?

MR. DIMOND: Go ahead.

MS. FRANZETTI: Sorry. Mr. Smogor, can you

19 give us, based on the fish studies that have been done

20 in Upper Dresden Pool, can you tell me whether any

21 species that would be covered by using the phrase

22 intolerant species have been found typically in the fish

23 studies in Upper Dresden Pool? I mean can you give us

24 some idea of when that term is used?

MR. SMOGOR: Even though that level of

2 specificity is not necessarily intended by these use

3 definitions, our proposed use definitions, there are

4 classifications available in the scientific literature,

5 there are classifications of fish species into each of

6 these boxes: Intolerant, moderately intolerant, or

7 depending on what piece of literature you go to, there

8 are these boxes that cover the gradient from most

9 tolerant to least tolerant forms. We're not necessarily

10 picking one of those and using one of those, but there

11 is information like that out there that helps inform,

12 for example, that helps inform how you might score a

13 particular metric in a particular fish IBI.

MS. FRANZETTI: Can you explain for us why

15 the Agency is reluctant for purposes of the use

16 designations in the rules it's proposed to make

17 reference to any of those reference documents or

18 classification type reference materials on what types of

19 fish tend to fall into tolerant and intermediately

20 tolerant and intolerant? I mean because, understand, I'm

21 not trying to be difficult.

MR. SMOGOR: I understand.

MS. FRANZETTI: It helps for the regulated

24 community, at least, the general public, to have a bit

1 of clarity and certainty to what the proposed language

2 means. So I'm trying to understand why, if those kinds

3 of fish classification systems do exist, why did the

4 Agency make the decision, no, we don't want to reference

5 those or rely on those in these use designations?

MR. SULSKI: Could I address that, Susan?

7 If you start carving out species, you can have different

8 assemblages of species that are tolerant but it may be

9 five tolerant species or intolerant species here, but it

10 may be five other ones that are also intolerant or five

11 other ones that are intolerant. So limit yourself to

12 species in a regulation, you can box yourself into a

13 corner. In other words, if you go out and you assess

14 and you find that, well, we listed this species, but

15 this year we didn't find these. Boom, we're on a list,

16 and, you know, people want to sue us. But we do use

17 metrics and other things to access waterways. So

18 they're covered indirectly. So we go out and we do our

19 assessment to determine whether they meet what our

20 regulations say the use is and so they come in

21 indirectly. But I think the answer is the primary

22 reason is to not box oneself into a corner. So all of

23 a sudden you're in violation one year, and all it takes

24 is just one thing and you're in violation when that may

1 not be the case, so does that --

MS. FRANZETTI: Yeah. Maybe I'm not

3 understanding what these reference materials show.

4 Because I guess I thought based, on what's been said,

5 that the standard or references that do contain list of

6 fish species divided by tolerant, intermediately

7 tolerant or intolerant, would kind of be like an

8 encyclopedia. So that what you basically would be

9 saying is if you're saying in a rule that the tolerant

10 predominate, okay, then one could go to the reference

11 and see the types of species; not that every one of them

12 needed to be there for the use designation to apply, but

13 species of the type that are in that category would be

14 found to predominate in that water body. See what

15 I'm -- Do you understand why I'm confused? I don't say

16 that the rule has to specify the fish species, but why

17 can't the rule, if it's using these categories, make

18 reference to some source, some resource that contains

19 the encyclopedia, so to speak, of types of species that

20 are in each one of these categories?

MR. SMOGOR: I don't believe that we've got

22 that far in this analysis in terms of -- I don't

23 disagree that that may be a fruitful path, but I don't

24 think we've gone that far in the intention or the intent

1 of these terms. For the most part, these terms pretty

2 much reflect balance or degrees of imbalance, and that

3 was the intent and so there was never an explicit intent

4 to go that far on that path at this point.

MR. SULSKI: When the stakeholders tried to

6 do it, they were very swiftly knocked off that course.

7 I mean even CDM listed some species this their proposed

8 classification, but everybody argues, well, that's not

9 the species we should be using, so I don't think it's

10 necessary to list particular species to define a goal.

11 Because species are used as one element of a decision

12 anyways on whether a goal is being met.

MS. FRANZETTI: Thank you.

MR. DIMOND: So is it your sense -- is it

15 the Agency's position then that you don't need to

16 identify species or categories of species that are

17 either tolerant or intolerant, but that this metric of

18 balance is somehow measured by the IBI scores?

MR. SMOGOR: I think one way that can inform

20 you about whether fish bleeding is balanced or

21 imbalanced is to use a biological indicator like an

22 index of biotic integrity and IBI. I think that's one

23 possible way to answer the question do I have a balanced

24 fish community or do I not have a balanced fish

1 community.

MR. DIMOND: Has the Agency used any metrics

3 or devices other than IBI scores to measure the balance?

MR. SMOGOR: For the most part when we

5 assess attainment of the current uses for waters

6 throughout the state, the current aquatic life uses in

7 streams for waters throughout the state, other than the

8 waters that we're talking about in these proceedings, so

9 I'm dealing with the general use waters, we rely on an

10 index of biotic integrity for fish, an index for biotic

11 integrity for macroinvertebrates, and other -- and

12 components of those two indeces, individual components

13 of those two indeces. Those are pretty much our

14 biological indicator's toolbox for the general use

15 waters.

MR. DIMOND: And what have you -- were you

17 done?

MR. SMOGOR: Yes.

MR. DIMOND: What, if anything, have you

20 tried to use for the waters at issue in this proceeding?

MR. SMOGOR: Well, the use attainability

22 analyses for both the Lower Des Plaines River and for

23 the Chicago area waterway system were informed by --

24 they were informed by -- the existing biological

1 condition was reflected in part in terms of Ohio and

2 Ohio boat electrofishing index of biotic integrity. So

3 that helped inform the -- helped inform us about the

4 existing biological condition of these waters.

MR. DIMOND: Our second question was what

6 are the unique flow conditions that the Agency believes

7 exist in the Upper Dresden Island Pool?

MR. SULSKI: Relative to CAWS and the

9 Branden Pool, the Upper Dresden Island Pool is flanked

10 by a greater degree of a better quality habitat, some

11 islands. It is impounded, so it's less, I guess, it's

12 less unique on the stressor level than what is found

13 upstream. So we're looking at it relative to all the --

14 the three groups of waterways that we could find.

MR. DIMOND: Is impoundment generally

16 considered to be a stressor?

MR. SULSKI: I'd have to refer to my --

MR. SMOGOR: I think in general, yes.

MR. DIMOND: In what way does it stress the

20 aquatic life -- I assume we're talking about aquatic

21 life here in terms of stressors of impoundment being a

22 stressor?

MR. SMOGOR: Yeah. I was referring to

24 aquatic life.

MR. DIMOND: In what way does it stress the

2 aquatic life community?

MR. SMOGOR: To me, when we refer to

4 stressors, I'm considering that term pretty broadly as

5 what do humans do to create conditions that are --

6 degrade from a natural condition. And when you have a

7 naturally flowing stream and you impound it, that is a

8 stressor then on what was occurring there before the

9 impoundment. That's how I'm looking at that.

MR. DIMOND: So you're just looking at -- so

11 there you're just defining stress as a change from what

12 would otherwise -- what the condition would otherwise

13 be?

MR. SMOGOR: Well, what the condition would

15 otherwise be with a relative lack or under least

16 impacted -- least affected by human conditions.

MR. DIMOND: Okay. Now, our next question

18 was --

MS. FRANZETTI: Can I interject on that?

MR. DIMOND: Sure.

MS. FRANZETTI: But the language of the

22 proposed use designation does use this phrase unique

23 flow conditions. So you've mentioned impoundment.

24 Would it also include the fact that the flow levels in

1 Upper Dresden Pool can change significantly in a short

2 amount of time due to the operation of the lock and dam

3 system, for example? Is that part of what was meant to

4 be captured by unique flow conditions?

MR. SULSKI: The statement reads that it

6 says necessary to maintain navigational uses and

7 upstream flood control functions. So, yes, we've got a

8 navigational channel which bifurcates some of the system

9 that's sort of unique in the grand scheme of things. I

10 wouldn't speak that far in terms of the effect of flood

11 control function because all streams have some flood

12 control function.

MR. DIMOND: Our next question was why are

14 the geographic features of the Upper Dresden Island

15 Pool, paren, its earthen banks and overhanging

16 vegetation, closed paren, given more weight than the

17 effects of upstream contamination in evaluating the

18 Upper Dresden Island Pool's aquatic life potential.

MS. WILLIAMS: Can you specify what upstream

20 combination you're talking about?

MR. DIMOND: Well, among others, the

22 contaminated sediment throughout the entire waterway

23 system.

MR. SULSKI: Well, we haven't established

1 that the upstream sediment -- We haven't established

2 that it's contaminated to the extent that we -- we don't

3 know what effects it has exactly, the sediment, aside

4 from it being a metric in a habitat, for example. But

5 aside from that, we just had a discussion on most of our

6 information on sediments is bulk chemistry. So what

7 other upstream contamination are we talking about?

MR. DIMOND: So the Agency has not evaluated

9 what the impact of sediment -- of sediment contamination

10 is on the ability of the Upper Dresden Island Pool to

11 improve its aquatic life uses?

MR. SULSKI: The contractors made an effort

13 to do that, and both agreed that there was either not

14 enough information or the information was not sufficient

15 enough to invoke a UAA factor based on sediment

16 contamination. We didn't have any additional data that

17 can answer that question definitively.

MS. FRANZETTI: Mr. Dimond, if I may?

MR. DIMOND: Yes.

MS. FRANZETTI: What's confusing is that why

21 was the sediment information sufficient for purposes of,

22 I believe it's cadmium standard to factor it in, but not

23 for anything else? Could you explain that a little

24 further?

MR. TWAIT: Well, to explain the cadmium, we

2 looked at the district's water quality data in their

3 receiving stream. And we noticed that in some places

4 where we don't have a point source, the cadmium in the

5 stream was still elevated. And then we also noticed

6 that some of those same places that during the winter

7 when we've got less large traffic, that we believe that

8 the levels of cadmium in the stream were lower than when

9 they were in the summer when we would have more. So we

10 surmised that the barge traffic was stirring up sediment

11 and that was causing the cadmium to be found in the

12 water quality, in the water.

MS. FRANZETTI: Do you have any -- Is there

14 any data -- I understand what you were saying that you

15 were comparing cadmium levels in the water in that area

16 and drawing the conclusions as you've just said about

17 the cause of the differences in the cadmium levels.

18 Did you do any similar review for organic parameters to

19 see whether or not you saw changes in their level in the

20 water column as between high navigation times versus

21 lower navigation use times.

MR. TWAIT: Are you talking about BOD or

23 other organic chemicals?

MS. FRANZETTI: Organic chemicals, not BOD.

MR. TWAIT: No. We did not look at that.

MS. FRANZETTI: Is that because that

3 information isn't available or you're not sure why?

4 Because I don't know.

MR. TWAIT: We looked at -- We looked at

6 cadmium specifically because we were not meeting the --

7 what we had -- We were not meeting the national criteria

8 for cadmium. So we looked at it specifically and tried

9 to determine why we weren't meeting with the organics

10 other than B text we're now proposing the water quality

11 standards other than derived criteria. So we did not

12 look at it because we did not have a problem with the

13 proposal.

MS. FRANZETTI: Okay.

MR. DIMOND: Our next set of questions go to

16 differences in the UAA factors between the CAWS Aquatic

17 Life Use A Waters and the Branden Pool Aquatic Life Use

18 B Waters in the Upper Dresden Island Pool. For UAA

19 factor No. 3, how was it determined that there are no

20 irrepairable human-caused conditions or sources of

21 pollution that would prevent the attainment of Illinois

22 EPA's recreational and aquatic life goals in the Upper

23 Dresden Island Pool.

MS. WILLIAMS: Mr. Dimond, can I just ask

1 for our clarification about the question. Have you had

2 a chance to look at the table that Mr. Sulski filed

3 since the last hearing?

MR. DIMOND: I've looked at the table, but

5 it just states the conclusion. It doesn't answer the

6 question.

MS. WILLIAMS: Well, okay.

MR. DIMOND: I mean unless I'm -- maybe you

9 should --

MS. WILLIAMS: It seems that the question

11 suggests that we determine Factor 3 did not apply. So I

12 guess I was suggesting that all the places where there's

13 a 3, we've determined that it does apply on that chart.

HEARING OFFICER TIPSORD: Oh, okay. We're

15 going to have to enter the chart as an exhibit.

MS. WILLIAMS: That's fine. I think we

17 should.

HEARING OFFICER TIPSORD: UAA Factor

19 Application to the Lower Des Plaines River and CAWS

20 which was filed by the Agency on the 4th will be entered

21 as Exhibit 29 if there's no objection. Seeing none,

22 it's marked as Exhibit 29, and the Board's docketing

23 sheet will reflect that.

MR. SULSKI: Can I answer the question?

MR. DIMOND: Sure.

MR. SULSKI: Well, we didn't deem that the

3 source of pollution are irreversible stressors on the

4 system, and habitat modifications are not severe enough

5 to invoke a factor. But that's for the aquatic life

6 side. You asked about recreation, too. We invoke

7 Factor 3 because of the barge traffic and other

8 industrial activities, and considering that primary

9 activities were not known to occur, so they're not

10 existing uses and we didn't have any information that

11 suggests their plan for the near future. So in that

12 regard, we invoke Factor 3 for recreation. We didn't

13 invoke any factors for aquatic life in Dresden Island

14 Pool.

MR. DIMOND: So it was the Agency's

16 conclusion that the barge channel did not have an impact

17 on the ability to -- the aquatic life use in the Upper

18 Dresden Island Pool?

MR. SULSKI: We didn't think that the barge

20 channel in itself should ignore the other qualities

21 within that system to the extent that we'd be justified

22 in invoking a UAA factor.

MR. DIMOND: What were the other qualities?

MR. SULSKI: Looking at a navigation chart

1 here. Do we have -- what was it filed under?

MS. WILLIAMS: For the record, Mr. Sulski is

3 referring to what was No. 5 in our list of documents

4 that we filed with the Board; navigation charts with

5 QHEI values, and it's color copies and the copies are

6 there.

HEARING OFFICER TIPSORD: Say that again,

8 please.

MS. WILLIAMS: It's navigation charts with

10 QHEI values is what it's numbered on our list. It

11 didn't have a cover page, I believe, but it's the

12 colored maps.

HEARING OFFICER TIPSORD: This is it?

MS. WILLIAMS: Correct.

HEARING OFFICER TIPSORD: We'll enter that

16 as an exhibit as well. We'll make that Exhibit No. 30.

17 And it's U.S. Army Core of Engineers Illinois Waterway

18 Mile 277.8 to 280.4 at the top of the chart. The date

19 is 1998 on the bottom left-hand side.

Map

20 No. 109. That's the first map. It's No. 110 and 111.

21 They're stapled together, so we'll give them one exhibit

22 number of Exhibit 30 if there is no objection. Seeing

23 none, it's Exhibit 30.

MR. DIMOND: You were going to answer the

1 question.

MR. SULSKI: In response to the question, I

3 was compelled to drag out these maps because it gives

4 you a better pictorial understanding of what this pool

5 consists of. And while -- and these navigation charts

6 are a good demonstration data. Because they show you

7 where the navigational channel is and what other just

8 basic features exist in the system. And, as you look up

9 and down it, you do see that there's a navigational

10 channel, but you also see that that channel is flanked

11 by many areas of nonnavigation channel habitat

12 including, you know, island and delta mouths and

13 channels behind islands and tail waters and side

14 channels and flaps and an inside bend. And so in

15 utilizing the weight of evidence decision, we can't

16 ignore that these things exist. They don't exist

17 upstream in those straight wall channels, but they do

18 exist here, and they do exist sufficient enough for us

19 to make the determination that we can't invoke a UAA

20 factor based on habitat, that there's sufficient enough

21 habitat to meet the goal that we've set for this reach

22 of waterway.

MR. DIMOND: And that conclusion is based on

24 the various QHEI scores that you've obtained, and I

100

1 think you testified last time your own personal

2 observations.

MR. SULSKI: Correct. I mean QHEIs are one

4 measure of habitat, but it's habitat as well as certain

5 metrics of the QHEI. And just, yeah, my experience and

6 other folks' experience with what exists in this reach.

MR. DIMOND: I believe 4B and 4C have been

8 asked and answered, probably several times over. So I'm

9 going to move on to Page 5 to Question 1 there.

How is it determined that the highest level

11 of biological potential should serve as the aquatic life

12 goal for the Upper Dresden Island Pool?

MS. WILLIAMS: Can we just clarify for the

14 record? I think you said you were moving on to 5.

MR. DIMOND: Page -- I'm sorry.

MS. WILLIAMS: You meant D, right?

MR. DIMOND: I'm sorry. My page numbering

18 is different because I spaced it out differently. It's

19 Question 1 under the heading for Mr. Smogor.

HEARING OFFICER TIPSORD: Which is Page 3 of

21 the prefiled questions. It's what happens when you

22 leave space for notes.

MR. DIMOND: Let me just reread the question

24 now that everyone knows where I was. How is it

101

1 determined that the highest level of biological

2 potential should serve as the aquatic life goal to the

3 Upper Dresden Island Pool?

MR. SMOGOR: I believe a lot of that is

5 documented in the Lower Des Plaines River use

6 attainability analysis Attachment A. And when you say

7 highest, the way I am interpreting that is that's just

8 in a relative degree. Of the three uses we've proposed,

9 the level of biological conditions proposed for Upper

10 Dresden Island Pool is the highest. That's not --

11 there's not any intent of ultimate highest in a larger

12 frame of reference there. So the information in the UAA

13 Attachment A primarily, again, it was physical habitat

14 conditions, water chemistry conditions, and existing --

15 that are existing, and biological -- existing biological

16 conditions also informed of that process. But with the

17 caveat that existing biological conditions themselves

18 don't necessarily define biological potential for these

19 waters.

MR. DIMOND: Did you consider the potential

21 impact of other lower level areas, particularly those

22 that are upstream, upon the Upper Dresden Island Pool.

MR. SMOGOR: Can I ask you to clarify what

24 you mean by lower level areas? I'm not quite sure what

102

1 you're getting at.

MR. DIMOND: Well, there are, for example,

3 the Branden Lock and Dam is identified as an Aquatic

4 Life Use B area. In other words, it doesn't have --

5 It's a lower level of biologic potential apparently,

6 than at least in the Agency's view, than the Upper

7 Dresden Island Pool. Did you consider the impact of

8 those areas on the Upper Dresden Island Pool?

MR. SMOGOR: I would -- To the extent that a

10 particular body of water is -- conditions in a

11 particular stream are affected by what flows into that

12 stream from upstream, I would say yes. Because if

13 you're looking at conditions in Upper Dresden Island

14 Pool, those conditions in part reflect what's flowing

15 into the pool. So in part, yes.

MR. DIMOND: So you just -- You considered

17 it in the sense that whatever the impacts of the

18 upstream reaches are, you would consider those to

19 already be reflected in the conditions present in the

20 Upper Dresden Island Pool.

MR. SMOGOR: Yes. I would say that's a good

22 way to put it.

MR. SULSKI: Goal conditions, not existing

24 conditions, though. I mean existing conditions can and

103

1 some cases are less than the goals that we've

2 established. So I wanted to add that clarification on

3 existing conditions because we're going to get into

4 existing conditions quite a bit here down the road.

MR. DIMOND: What do you mean when you say

6 we're going to get into existing conditions down the

7 road?

MR. SULSKI: Well, because we have a

9 disparity between habitat and IBI scores throughout

10 Upper Dresden Island Pool. There's a disparity. In

11 other words, it's not living up to the potential we

12 expect it to live up to, and that's due to stressors.

13 Some of the stressors are upstream causing that. We're

14 not going to minimize and ignore those stressors, but

15 we're not going to say that those are going to make us

16 change our mind on what we think that the -- what we

17 expect of the Dresden Island Pool.

MR. DIMOND: So even -- So is what you're

19 saying is that even dischargers that are outside the

20 Upper Dresden Island Pool may be impacted by the change

21 in use that the Agency wants to achieve for the Upper

22 Dresden Island Pool?

MR. SULSKI: That's possible.

MR. DIMOND: Did you consider whether the

104

1 effluent concentrations in the water flowing into the

2 Upper Dresden Island Pool from the upstream areas would

3 render the high level of biological potential

4 unrealizable?

MR. SMOGOR: Again, to the extent that water

6 chemistry conditions in Upper Dresden Island Pool

7 reflect conditions of the waters flowing into Upper

8 Dresden Island Pool, yes, to that extent.

HEARING OFFICER TIPSORD: And then,

10 Mr. Dimond, if you're -- when you're finished with

11 question one, we'll go ahead and take a lunch break.

MR. DIMOND: Unless anybody has follow-ups,

13 I'm finished.

HEARING OFFICER TIPSORD: It's right at 1:00

15 o'clock, so let's go ahead and take an hour for lunch.

(Lunch break taken.)

* * * * *

105

1 STATE OF ILLINOIS )

) SS.

3 COUNTY OF COOK )

I, LAURA MUKAHIRN, being a Certified

6 Shorthand Reporter doing business in the City of

7 Chicago, Illinois, County of Cook, certify that I

8 reported in shorthand the proceedings had at the

9 foregoing hearing of the above-entitled cause. And I

10 certify that the foregoing is a true and correct

11 transcript of all my shorthand notes so taken as

12 aforesaid and contains all the proceedings had at the

13 said meeting of the above-entitled cause.

___________________________

LAURA MUKAHIRN, CSR

CSR NO. 084-003592