1 IN THE MATTER OF:

)

2 WATER QUALITY STANDARDS AND

)

EFFLUENT LIMITATIONS FOR THE

) No. R08-9

3 CHICAGO AREA WATERWAY SYSTEM

)

AND THE LOWER DES PLAINES RIVER: )

4 PROPOSED AMENDMENTS TO 35 Ill.

)

Adm. Code Parts 301, 302, 303

)

5 and 304.

)

TRANSCRIPT OF PROCEEDINGS held in the

9 above-entitled cause before Hearing Officer Marie

10 Tipsord, taken before Tamara Manganiello, RPR, at

11 1215 Houbolt Road, Room T-1000, Joliet, Illinois, on

12 the 11th day of March, A.D., 2008, commencing at

13 9:00 a.m.

L.A. REPORTING (312) 419-9292

1 APPEARANCES

2 ILLINOIS POLLUTION CONTROL BOARD:

3 Ms. Marie Tipsord, Hearing Officer

Ms. Alisa Liu, P.E., Environmental Scientist

4 Mr. Anand Rao, Senior Environmental Scientist

Mr. Tanner Girard, Acting Chairman

5 Mr. Nicholas Melas

Mr. Thomas Johnson

6 Ms. Andrea Moore

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

Ms. Stefanie Diers

9 Ms. Deborah Williams

Mr. Robert Sulski

10 Mr. Scott Twait

Mr. Roy Smogor

11 Mr. Howard Essig

Ms. Marcia Willhite

13 ENVIRONMENTAL LAW AND POLICY CENTER,

33 East Wacker Drive

14 Suite 1300

Chicago, Illinois 60601

15 (312) 795-3707

BY: MR. ALBERT ETTINGER

Appeared on behalf of ELPC, Prairie Rivers

Network, and Sierra Club,

19 FRANZETTI LAW FIRM P.C.

10 South LaSalle Street

20 Suite 3600

Chicago, IL 60603

21 (312) 251-5590

BY: MS. SUSAN FRANZETTI

Appeared on behalf of the Midwest

Generation, L.L.C.,

L.A. REPORTING (312) 419-9292

1 HODGE DWYER AND ZEMAN

3150 Roland Avenue

2 Post Office Box 5776

Springfield, IL 62705

3 (217) 523-4900

BY: MR. THOMAS SAFLEY

Appeared on behalf of Exxon Mobil, and The

Illinois Environmental Regulatory Group,

THE CHICAGO LEGAL CLINIC

7 2938 East 91st Street

Chicago, Illinois 60617

8 (773) 731-1762

BY: MR. KEITH HARLEY

Appeared on behalf of the Southeast

Environmental Task Force,

MAYER BROWN, LLP,

12 71 South Wacker Drive

Chicago, IL 60606

13 312) 782-0600

BY: MR. TOM DIMOND

Appeared on behalf of Stepan and Company.

L.A. REPORTING (312) 419-9292

HEARING OFFICER TIPSORD: Good

morning. My name is Marie Tipsord and I've

been appointed by the Board to serve as

hearing officer in these proceedings. We all

know what we're here for, it's R08-9. This

is day two of our hearings. We will continue

again tomorrow and we will start again

tomorrow morning at 9:00 o'clock and go until

about 5:00 o'clock tomorrow again and see

where we are.

Also as a reminder, we will talk

tomorrow, unless we go really fast over the

next two days, I don't know that we're going

to be done with the Agency by the end of the

day tomorrow. That being the case, we'll

keep that in mind when we look at potential

other dates for hearings.

We're starting today with Midwest

Generation. I remind you all that anyone may

ask a question, you need not wait until your

turn to ask questions. Please raise your

hand, wait for me to acknowledge you,

identify yourself for the record and whom you

represent and speak one at a time. If you

L.A. REPORTING (312) 419-9292

speak over each other, the court reporter

will not be able to get everything on the

record.

Also note that any questions asked

by a Board member or staff are intended to

help build a complete record for the Board's

decision and not to express any preconceived

notion or bias. Did you have anything today?

I skipped over you yesterday I know.

DR. GIRARD: That's all right. Just

good morning. Thanks for all your time and

effort, we appreciate it. We're going to

have a great record. Let's get to work.

Thanks.

HEARING OFFICER TIPSORD: With that

we'll start with Ms. Franzetti and Midwest

Generation.

MS. FRANZETTI: Thank you. We left

off with F, aquatic life use designations

proposed regulatory language in my pre-filed

questions. Question under number one, I

think this has been answered to a certain

extent so I'm going to change from the

pre-filed question a bit to recognize the

L.A. REPORTING (312) 419-9292

prior testimony that was given yesterday on

some of these issues.

With respect to question 1A, I

know yesterday there was testimony I think

from Mr. Smogor about the relative

differences that are meant to be conveyed in

the respective aquatic life use designation

proposed rules. Do you recall what I'm

talking about, Mr. Smogor?

MR. SMOGOR: Yes.

MS. FRANZETTI: With respect, though,

within each of the proposed use designation

rules -- and I'm talking about for the record

303.230, 235 and 237, is the use of the terms

tolerant, intolerant and intermediately

tolerant, is that, though, intended to convey

the differences between the proposed use

designations within those rules?

MR. SMOGOR: It's intended to

convey one of the primary manifestations of

the differences in biological conditions that

are reflected by each of those proposed uses.

Does that help?

MS. FRANZETTI: I think so. So those

L.A. REPORTING (312) 419-9292

words are -- they're intended to define what

the attainable biological condition is of

rivers or water segments that are placed

within that use designation?

MR. SMOGOR: Yes. It was our intent

to provide in maybe more concrete terms but

still relative degrees of what we meant by a

balanced versus and imbalanced versus an even

more imbalanced biological condition.

In a primary manifestation of

moving from a balanced to a less balanced to

an even more imbalanced system, one of the

primary patterns that we see out there as

human impacts increase is this change from

the presence of intolerant species to a loss

of intolerant species to greater and greater

predominance of the most tolerant types.

MS. FRANZETTI: I think B and C have

been covered. D, the language of the

proposed use designations uses the term

predominated. What's the intended meaning of

that term predominated?

MR. SMOGOR: That means dominant in

number.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: And is something

dominant in number if it at least exceeds

50 percent?

MR. SMOGOR: If there's two -- only

two types, that would be true. But if you

have more than two types, it's whatever is

the most. If you count the number of the

different types, it's just whatever one has

the most number of individuals.

MS. FRANZETTI: Now I know yesterday

you were telling us that the Agency doesn't

want to define specific species -- I

understand that -- doesn't really think they

want to reference a fish guild or guide that

would give us lists of what's included in

tolerant, intermediately tolerant and

intolerant, but in order for the Agency to

make the determinations in these proposed

rules as to what type was predominant for a

given use and, therefore, to place the river

segments appropriately based on the fish

populations, what fish data did you rely on

to do that?

And if we want to check your

L.A. REPORTING (312) 419-9292

judgments here, what data would we look at to

take a look and see what is predominant, what

types of fish are predominant in these

particular water bodies listed under each of

the proposed uses?

MR. SMOGOR: Would you excuse me for a

second?

MS. FRANZETTI: Sure. Absolutely.

(Whereupon, a discussion

was had off the record.)

MR. SMOGOR: Again, there was not the

intent to put species of fish into particular

boxes in terms of their relative intolerance

or relative tolerance. There was not the

intent to do specific counts of how many fish

are in each of those boxes.

The intent was to convey a more

concrete idea of what would be a balanced

versus a less balanced biological condition.

So, in other words, I don't know

if this would be -- another way to think

about it is if we had not tried to explain

what balanced and imbalanced meant in terms

of this primary way of judging that -- and

L.A. REPORTING (312) 419-9292

it's not the only way of judging if something

is balanced or imbalanced. If we had just

pretty much said balanced populations of

aquatic life, that would have been -- that's

pretty much what we intend. We didn't really

intend much more than that.

We were trying to give a picture

of what that means in terms of the structure

in common terms that people can understand.

People generally understand when you talk

about there's a range of animals that occupy

any location out there, that some are more

tolerant to human impacts and some are less

tolerant.

And this concept of having more

sensitive forms and less sensitive forms out

there we thought was one maybe more concrete

way of getting to this concept of balance

versus imbalance. And that was the only

intent of it.

MS. FRANZETTI: Okay. Let me try and

convey my issue here. Let's take this by way

of example, that under 3.3.235, which is the

proposed rule on the CAWS and Brandon Pool

L.A. REPORTING (312) 419-9292

Aquatic Life Use B Waters Designation, for

example, the Chicago Sanitary and Ship Canal

has been placed in that proposed aquatic life

use designation, if I want to evaluate

whether or not I agree with you that the CSSC

should be in Use B versus Use A, that's what

I'm trying to understand is if I think that's

the wrong designation for the CSSC, not that

I'm saying it is, but what do I look at to

kind of review what you looked at in making

the judgment that for aquatic life use, CSSC

should be in an Aquatic Life Use B Waters.

And I thought one of the things I

should look at would be fish data to see

whether or not I agreed that the CSSC is

capable of maintaining aquatic life

populations predominated by individuals of

tolerant types.

MR. SMOGOR: Now when we're talking

about if we have a water and we want to know

what is the potential -- the biological

potential of a particular water to put it

either in the CAWS A Box or the CAWS B Box in

terms of its biological potential, now we're

L.A. REPORTING (312) 419-9292

much less interested in the existing

biological condition.

To do that, we're focused more on

the template -- the physical template and

saying what can this water reasonably attain

in terms of its biological condition. So if

you're looking at a particular water and you

think that it should be in Box A instead of

B, then we're not really focusing much on the

aquatic life that's present.

Again, we're judging what can be

its attainable biological condition and we're

primarily focusing a lot on the physical

template. So that's a slightly different

situation than saying I have a water, what is

its current biological status. So to me

those are kind of two different questions.

MS. FRANZETTI: So if I understand

correctly, in deriving these aquatic life use

designations and the narrative explanation of

them that is contained in the proposed rules,

you were not really looking at the fish

population that exists there today, that was

really not a very significant piece of

L.A. REPORTING (312) 419-9292

information for determining what waters go in

that use designation, correct?

MR. SMOGOR: It was informative, it

provides context, but it was not the primary

driver.

MS. FRANZETTI: And the primary driver

was more the physical conditions of -- well,

the physical conditions that you believe

match the proposed use designation, what is

attainable based on those physical

conditions?

MR. SMOGOR: Based on what we believe

are the irreversible conditions out there,

the -- I call it a template. Maybe that's

not an appropriate word, but maybe that's

helpful to some. Based on that, yes, that

helped us derive the attainable biological

condition.

MR. SULSKI: Can I add a

clarification, please? That's not to dismiss

the biological data. The biological data is

very important if you have it to look at.

You don't need it, but if you have it, it's

very important because it answers several

L.A. REPORTING (312) 419-9292

questions for you.

When you compare the biological

data to what's expected out of the habitat

and if the biological data shows that the

community -- the aquatic life community is

not meeting what the habitat suggests, you've

got a problem. That's what an assessment

does. Then you start to look for sources of

the problem. That's what the UAAs did.

However, if the biological

community, the IBIs, whatever you're looking

at exceed what the habitat suggests, you've

got something else going on out there that is

encouraging a more balanced community and

that raises your bar. That's an existing

use. You have -- despite what the habitat

says, if that's a consistent existing use,

you have to protect for it.

MS. FRANZETTI: Okay. And is the use

then of the terminology like tolerant,

intolerant meant to reflect an organism's

tolerance to certain -- or suitability to

certain habitat conditions as well as

conventional pollutants?

L.A. REPORTING (312) 419-9292

MR. SMOGOR: The way we use those

terms is very general. It's tolerance to

human impacts of all types, so there's no

specificity intended. And human impacts of

all types would include physical impacts, as

well.

MS. FRANZETTI: So does the way you're

using it differ a bit from the way some of

the reference materials tend to use those

terms in that I believe as they are used in

fish reference materials, it doesn't take

into account whether or not a species is

tolerant or intolerant to things such as

toxics, heavy metals for example?

MR. SMOGOR: I think in the reference

materials that I'm familiar with, and those

are the reference materials primarily

concerned with deriving biological indicators

such as IBIs, indexes of bio-integrity, those

types of classifications are fairly broad so

they would include multiple types of human

impact.

Now they're not always absolutely

correct when you're looking at only one type

L.A. REPORTING (312) 419-9292

of impact. It's kind of -- for instance,

there are fish species that in general could

be considered tolerant of most types of human

impact, both physical and chemical.

But there may be -- even those

species may be classified as say broadly

tolerant. There may be a chemical out there

that they're particularly sensitive to. So

there's not much specificity in these broader

classifications and they are not always 100

percent accurate either because they are so

broad.

MS. FRANZETTI: Okay. Moving on to E,

and this may reflect my lack of knowledge,

but what is the intended meaning of the term

individuals. It would seem to be relating to

fish at least, but can you just explain how

that term is used?

MR. SMOGOR: Each organism, whether

you're talking about bugs, whether you're

talking about fish. An individual is one

organism.

MS. FRANZETTI: And moving on to F, in

the proposed use designation for the Upper

L.A. REPORTING (312) 419-9292

Dresden Island Pool in Section 303.237, the

phrase is used "capable of maintaining" as in

these waters are capable -- well, actually,

the "of" I think I dropped, but these waters

are capable of maintaining aquatic life

populations consisting of individuals of

tolerant, intermediately tolerant and

intolerant types. What's the intended

meaning of the term "capable of maintaining"

as used in that proposed rule?

HEARING OFFICER TIPSORD: Excuse me,

Ms. Franzetti, could you specify again the

section you're talking about? I apologize.

MS. FRANZETTI: No problem. 303.237.

HEARING OFFICER TIPSORD: Thank you.

MR. SMOGOR: Having the capacity to

support.

MS. FRANZETTI: Moving on to number

two, do these types of aquatic life also have

to be capable of adapting to the physical

conditions that follow in the language of

each use designation?

And let me note stay with 303.237,

after the language I just previously read

L.A. REPORTING (312) 419-9292

about capable of maintaining these tolerant

and intermediately tolerant and intolerant

types, it goes on to say, quote, that are

adaptive to the unique flow conditions

necessary to maintain navigational use and

upstream flood control functions of the

waterway system.

MR. SMOGOR: So could you ask the

question again, please?

MS. FRANZETTI: Sure. I'm trying to

understand is the defined use -- does it

consist of basically two parts? The Upper

Dresden Island Pool is capable of

maintaining, and as you've said, that's

having the capacity to support these three

categories of fish species, but is it also

then modified by that are adaptive, that can

adapt is the way I think what it means to the

unique flow conditions that are in the Upper

Dresden Pool?

MR. SMOGOR: Those are probably -- I

think they're similar intent there and I

think capable of adapting or that are

adaptive to -- I'm sorry, that are adaptive

L.A. REPORTING (312) 419-9292

to was intended to maybe add a -- emphasize a

time component, kind of a constancy

component.

In other words, it's just not

taking a snatch out and saying what's there,

but what's there is there for a reason, it's

able to live under those conditions, it's

able to get by under those conditions.

MS. FRANZETTI: And is that meant to

convey part of the Agency's view that Upper

Dresden Island Pool has unique conditions?

MR. SMOGOR: I don't really see how it

ties directly to that. When we say Upper

Island Dresden Pool has unique conditions,

the intent there was really with a broader

look, outside of the area of the waters that

we're addressing in these proceedings. It's

unique.

All the waters of these

proceedings spanned out as unique from all

the other waters of the state. That's what I

think was intended by unique, just to

emphasize that this is a -- it has been --

these waters have been in a different box

L.A. REPORTING (312) 419-9292

since 1972 and we still recognize that they

are pretty unique in terms of the level of

human impact that they've experienced

compared to other waters in the state.

MS. FRANZETTI: And is it the Agency's

view that fish that are going to be able to

reside in Upper Dresden Pool need to be able

to adapt to its unique flow conditions?

MR. SMOGOR: Yes.

MS. FRANZETTI: Following up on that

in number three, does existing data on the --

and I'm staying with Upper Dresden Island

Pool -- show that the aquatic life present

has adapted to the unique flow and physical

conditions in Upper Dresden Pool?

MR. SULSKI: The answer to that is

yes, but not to the degree expected.

MS. FRANZETTI: And please elaborate

on what you mean by not to the degree

expected.

MR. SULSKI: When we look at the

habitat and we compare it against what

exists, there's a disparity. What exists is

not living up to our expectations.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: Moving on to number

four now, and I'll modify it a little bit and

make it clearer. I know, again, you don't

want to list specific species for purposes of

the proposed rule, but can you give us an

example or two of the types of intolerant

species as are referred to generally in

303.237 that are, in your opinion, capable of

adapting to the conditions as described in

the proposed rule?

MR. SMOGOR: Can you give me a second

on this one, please?

MS. FRANZETTI: Sure.

(Whereupon, a discussion

was had off the record.)

MR. SMOGOR: Again, the intent -- in

relative terms, there was no real intent to

name specific fishes. But as an example of

what I think of what probably can be

supported in Upper Dresden Island Pool and

that may be considered as an intolerant type

are kind of the lower rung of the intolerant

type.

So when we're talking about

L.A. REPORTING (312) 419-9292

intolerant fish, we're not necessarily

talking about -- again, those terms were just

relative, so intolerant is up to how someone

wants to interpret it. And there are various

interpretations in the literature. There's

no one set of fish that everyone agrees to is

an intolerant set of fish.

So you can think of a range of

tolerance within a group of intolerant fish.

They're kind of on that end of the scale. So

examples of those types of fish that are

maybe the lower rung of the intolerant types

that can be supported, maybe some of the Red

Horse Suckers, maybe a few of the Shiners, I

believe there's maybe something like a Sand

Shiner, I think there's Ghost Shiner is a

species that's known to occur in Lower

Des Plaines River.

Now these fish may -- some of

these may be known from below I-55, but if

there's nothing blocking them, it's not going

to stop them from moving to above I-55. So

those are a couple examples of possibilities.

MS. FRANZETTI: Thank you. Moving on

L.A. REPORTING (312) 419-9292

to number five, what scientific data supports

the Illinois EPA's conclusion that intolerant

fish species can adapt to the type of

physical and flow conditions that are present

in Upper Dresden Pool?

MR. SMOGOR: Adaptability is not an

either/or kind of concept. There are varying

degrees of adaptability. In general, if an

organism can persist at a location I think

our intent of the word is that that organism

has adapted to live there. That doesn't

necessarily mean that particular type is

going to do extremely well, but it's barely

getting by at a location and it has adapted

to some degree to that location.

Now there are different levels of

adaptability. Another type of organism at

the same location may be doing very healthy

populations, doing much better, not just

barely getting by but living, that organism

has also adapted to that situation, but it

has adapted to a higher degree, so there are

different levels of adaptability.

I would say the evidence that

L.A. REPORTING (312) 419-9292

organisms have adapted to a site is that

they're there persistently without the help

of, say, human stocking. Obviously, if

humans take a fish and stock them there, they

might be there through time but you wouldn't

necessarily consider that they're adapted

unless they're persisting there without the

help of human stocking.

So that's what I would say, the

persistence of an organism at a location I

believe is evidence of adaptability to that

location for that set of conditions.

MS. FRANZETTI: I understand but that

seems to be based on an actual condition. In

other words, you're saying the fish is there

and, therefore, what may be called an

intolerant fish species has adapted to

conditions that one might not expect it to be

able to.

But that presumes you have actual

evidence that it's adapted. Your proposed

rule, as you were just saying earlier, speaks

in terms of what may occur, an attainability.

So how do you know without as you just said

L.A. REPORTING (312) 419-9292

the evidence that's there and it's adapted

that more intolerant species can, in fact,

adapt to the Upper Dresden Island Pool

conditions? That's what I'm trying to look

for. Is there some scientific data, are

there studies that have shown intolerant

species can, in fact, adapt to the type of

conditions in Upper Dresden Island Pool?

MR. SMOGOR: Well, I guess in a lot of

ways when we're setting biological potential,

we are making some judgments beyond existing

conditions. So we are making that judgment

that the template that's potentially

available in Upper Dresden Island Pool can

support a biological condition at a level

higher than what the existing condition is.

MS. FRANZETTI: And I'm asking you

what is that judgment based on? I mean, yes,

you can make a judgment but is it based on

scientific or technical data?

MR. SMOGOR: For the physical habitat,

I think there's enough information in the

literature especially if we're looking at one

indicator of physical habitat, let's say a

L.A. REPORTING (312) 419-9292

QHEI and the metrics of the QHEI, I think

there's enough information in the QHEI

literature to suggest that you can attain

biological indicator scores higher than what

we're actually seeing out there.

And along with those higher scores

that might better match what we're seeing in

terms of the physical habitat scores, those

would be consistent with having more

intolerant types.

MS. FRANZETTI: And how does that take

into account the ability to adapt to the

unique flow conditions?

MR. SMOGOR: In other words, flow and

habitat being two different things, is that

what you're getting at?

MS. FRANZETTI: I guess I'm asking you

does the typical QHEI ranking approach take

into account what has been identified as the

unique flow conditions in Upper Dresden Pool?

MR. SMOGOR: To some extent habitat

affects flow because of sorting of particles

and how flows effect on structuring the way a

stream looks physically. To some extent

L.A. REPORTING (312) 419-9292

habitat does account for effects of flow.

Again, the unique flow conditions,

we don't really believe that -- they are

unique relative to the rest of the state, but

they're not so impacted -- the flow

conditions are not so impacted in Upper

Dresden Island Pool that it would prevent

biological conditions from attaining the

clean water goals.

MS. FRANZETTI: And what's that

judgment based on?

MR. SMOGOR: I don't know the flow

data specifically, but I guess from the UAA,

I'm just going back to that, and apparently

from the UAA the flow conditions weren't that

impacted or that disruptive that would

prevent attainment of that biological goal.

MR. SULSKI: Can I augment that,

please?

MR. SMOGOR: Sure.

MR. SULSKI: We talk about unique

flows, you're focused on this unique flows.

MS. FRANZETTI: Well, because that's

the language in your proposed rule.

L.A. REPORTING (312) 419-9292

MR. SULSKI: Okay. And maybe unique

was not a good word to put in there for Upper

Dresden Island Pool and I will I admit that,

maybe it was a mistake because we have

systems throughout the state that have

similar flow patterns, not in the '70s. In

the '70s, all these other factors, you know,

took place, they were garbage waters.

However, we have other systems

that have flow patterns that are probably

similar. We have impoundments, we have large

rivers, we have examples of that in different

areas.

MS. FRANZETTI: Well, now be careful,

Mr. Sulski, because yesterday we spent a

while on establishing that the Agency thinks

that these waters are nothing like any other

waters in the state.

MR. SULSKI: And I'm focusing on

unique flow patterns right now. Overall,

there are nothing. And they were carved out

because they were the only secondary contact

waterways. So they're unique -- that's their

most unique aspect I think.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: Moving on to question

six, has the aquatic life present in the

CSSC, Chicago Sanitary and Ship Canal, and

the Upper Dresden Island Pool also adaptive

to the temperature regimes of the waterway?

MR. SMOGOR: The present aquatic life,

if it is there, if it has shown persistence

without human stocking, then, yeah, to some

degree it has adapted to the conditions that

are present.

MS. FRANZETTI: Bear with me on

question seven, it's a long one. There are

some differences in the language of the

proposed aquatic life use designations that

describe the physical conditions for the use

designation to which it appears the aquatic

life must be able to adapt. For example,

compare, quote, adaptive to the unique flow

conditions necessary to maintain navigational

use and upstream flood control functions of

the waterway system, end quote, which is used

in the Upper Dresden Pool rule to, quote,

adaptive to the unique physical conditions,

flow patterns and the operational controls

L.A. REPORTING (312) 419-9292

necessary to maintain navigational use, flood

control and drainage functions of the

waterway, which is the language used in the

Aquatic Life Use A Waters use designation.

Are these similar but different descriptions

intended to have different meanings, and if

so please explain the difference in meaning.

HEARING OFFICER TIPSORD: Excuse me,

before you answer that, that's

Section 303.230 and 303.237.

MR. SMOGOR: If you didn't ask the

please explain part, I would have had a real

short answer to your real long question.

MS. FRANZETTI: Well, take the first

one. Always take the easy question first.

MR. SMOGOR: First part, yes. The

second part, the different wording is

intended to reflect different levels of what

we're calling irreversible human impact.

MS. FRANZETTI: That's fine,

Mr. Smogor, you handled that quite well.

MR. SMOGOR: It's hard for me to give

short answers as you may have already

realized.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: Moving on to 7A, is it

the Agency's position that the Upper Dresden

Pool does not have unique physical

conditions, only unique flow conditions? And

now maybe that's changed based on some of the

just recent answers. I'm not sure whether

you think anything is unique in Upper Dresden

Pool at this point so can someone clarify

what the Agency's position is on Upper

Dresden Pool?

MR. SMOGOR: I can give it a shot.

Again, I think the use of the word "unique"

was to set it apart from the rest of the

waters of the state.

If that word were actually left

out of these definitions, I really don't

think it would change the substantive meaning

of these definitions at all. So there was

not -- there was not any real strong intent

for that word "unique" to really -- to

provide substance to any of these

definitions. They can stand alone without

that word in there.

MS. FRANZETTI: Moving on to B, what

L.A. REPORTING (312) 419-9292

is the difference between the Upper Dresden

Pool, quote, unique flow conditions, end

quote, as that phrase is used in 303.237

versus the, quote, unique flow patterns, end

quote, as that phrase is used for Aquatic

Life Use A Waters in 303.230?

MR. SMOGOR: That was intended to

convey that the Group A -- the CAWS Group A

waters are subject to more direct human

control flow patterns and the CAWS A waters

are subject to more direct human control than

are the flows in Upper Dresden Island Pool.

And, Rob, you can add something to that if

you have any more insight on that.

MR. SULSKI: I can add on C if B is

answered sufficiently.

MS. FRANZETTI: Well, can I just ask

for some elaboration? When you're talking

about more direct human controls than is

Upper Dresden Pool, what do you mean by that

more direct human controls?

MR. SMOGOR: If I understand this

correctly, the lock and damn system kind of

ends at Brandon Pool Damn, maybe even at the

L.A. REPORTING (312) 419-9292

Lockport Damn for the Chicago Area Waterways.

And that is under -- can you help with that?

MR. SULSKI: Yeah. It's got to do

with operation. Well, it's got to do with a

couple of things. The operation controls,

which gets into question 7B, we have direct

active operation controls at Lockport,

Wilmette, Chicago Harbor and Calumet Harbor.

This is where water is and can be allowed to

flow in and out rapidly. So those are the

operational controls that we talk about.

In addition to that, when you just

look at the general features of Dresden

Island Pool compared to Brandon Pool and all

the other systems upstream, as you go

upstream there's relatively less room for

over-bank littoral zone amelioration of

flows, there's straight walls or some -- you

know, when we get into the CAWS A waters

there's some littoral zone. You get into the

B waters, it's straight walled, whatever flow

comes through, it zips through.

So those are the physical

characteristics which change flow patterns or

L.A. REPORTING (312) 419-9292

dictate what types of flow will occur in

those three systems.

MS. FRANZETTI: And are you also

drawing distinction between the fact that for

Upper Dresden Island Pool that you just have

a lock and damn at the upstream end of the

pool and not another lock and damn at the

downstream end of what we're calling Upper

Dresden Island Pool?

MR. SULSKI: The lock and damn brings

ships in and out, it's not a flow control

structure. They can't open both sides or

they won't be able to close them. They open

one side, fill it up, the ship goes down,

they close that side, they open the other.

So it's not a flow control device, it's a

lock to get ships back and forth or boats.

Whereas in Lockport, they have

gate valves to drain the system upstream and

they do. They pour it in advance of a storm

into the Des Plaines River to try and draw

the level down upstream to accommodate a

storm event.

If they're successful in that,

L.A. REPORTING (312) 419-9292

they close and it acts as a big surge basin.

If they're not successful, if they can't get

enough water out of the system, boom, it goes

out to the lake. And we know it reversals to

the lake. So that's a direct control with

control structures to accomplish that and to

prevent flooding. That doesn't exist at the

Brandon Lock and Damn, that type of control

arrangement.

MS. FRANZETTI: And that last part,

does that answer my next question that the

description of the Upper Dresden Pool does

not include, quote, operational controls as

does the description of Aquatic Life Use A?

MR. SULSKI: If you're satisfied with

what I told you.

MS. FRANZETTI: That's really not the

gauge. Is that the meaning when?

MR. SULSKI: Yes.

MS. FRANZETTI: -- when the Agency

uses operational controls, it's of what you

described in the Lockport area versus the

Brandon Lock and Damn?

MR. SULSKI: Yes.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: Moving on to D, in the

description of the Upper Dresden Pool aquatic

life use in Section 303.237, there is no

mention of, quote, drainage functions of the

waterway system.

Is it the Agency's position that

the Upper Dresden Pool does not serve any

drainage functions for the waterway?

MR. SULSKI: No. All waters serve

some sort of drainage function.

MS. FRANZETTI: Beyond just the

typical drainage function that all waters

serve?

MR. SULSKI: Can you rephrase?

MR. ETTINGER: What does drainage

function mean? I don't understand your

question.

MS. FRANZETTI: Well, that's the

language and then I guess you don't

understand the regulation. Maybe we should

ask that question. What did the Agency mean

by its use of the phrase "drainage functions"

which is used in 303.230 as well as 303.235

so we can understand it?

L.A. REPORTING (312) 419-9292

MR. SULSKI: Let me just read it here.

(Peruses document.)

MR. SULSKI: So your point is it's

mentioned -- it's not mentioned for Upper

Dresden?

MS. FRANZETTI: Right. But it's

mentioned --

MR. SULSKI: But it is mentioned. And

I think the answer that I gave with the --

well, first of all, my first answer, it

serves a drainage function, but all waterways

serve a drainage function.

We brought Aquatic Life Use A and

B waters into the drainage -- we put that in

there as a use because of these operational

controls which are fairly unique. I mean, I

don't know any other system in the state that

operates that way.

MS. FRANZETTI: So that does

distinguish Upper Dresden Island Pool from

any of the waters in Aquatic Life Use B or

Aquatic Life Use A, correct?

MR. SULSKI: Yes. It's one of the

things.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: I understand. I

didn't say sole distinction.

MR. SULSKI: Okay.

MS. FRANZETTI: Mr. Ettinger, does

that provide the explanation of drainage

functions for your question?

MR. ETTINGER: I guess so, yes. I

have no idea what you were saying, but now

we've worked it out.

MS. FRANZETTI: Okay. That's what we

want to do. Number eight, does the use of

the, quote, adaptive to, end quote,

qualifying language mean that only aquatic

life that can adapt to these conditions is

intended to be protected?

MR. SMOGOR: Yes, given that there are

different levels of adaptability. Organisms

can adapt to conditions at different levels.

MS. FRANZETTI: And is that consistent

with the MBI/CABB 2005 report approach to

setting thermal water quality standards that

the Agency relied upon here?

MS. WILLIAMS: Can you repeat the

question?

L.A. REPORTING (312) 419-9292

It is the second part of the

pre-filed question number eight, so if you

have it in front of you. And is that

consistent with the MBI/CABB 2005 report's

approach to setting thermal water quality

standards that the Agency relied upon here?

I'm just trying to look for the

exhibit if we gave that an exhibit number. I

don't think we did. It's part of the

pre-filed testimony of Chris Yoder. I think

it's in Exhibit 13. You know the report I'm

talking about, the recommended thermal

criteria.

HEARING OFFICER TIPSORD: Which I

think isn't that Exhibit 15, the temperature

criteria options for Lower Des Plaines River?

MS. FRANZETTI: Yes. I'm sorry.

HEARING OFFICER TIPSORD: Yes. We did

give it an exhibit number because we were

referring to it so much, Exhibit 15. That

was so long ago I forgot.

MR. SULSKI: I'll start to answer this

and Roy may augment my answer. When we're

talking about setting thermal standards,

L.A. REPORTING (312) 419-9292

we're talking about protecting certain

assemblages but it was based on some species

recommended in those thermal criteria.

Now, those species recommended may

not -- it looks at the tolerance to

temperature to one parameter in those

species. So you can't take those species and

then apply all that to a balanced system.

So there could be -- I mean, we

would protect for some of those species that

are most tolerant to temperature or

intolerant to temperature or whatever, but

that may not necessarily be reflected in what

assemblage can be tolerant or intolerant of a

general habitat condition. Okay? So it's

kind of --

MS. FRANZETTI: There's a bit --

MR. SULSKI: Yeah, there's a bit of a

disconnect.

MS. FRANZETTI: Because really the

Yoder work doesn't take into account this

issue of adaptability to the conditions in

the Upper Dresden Island Pool, correct?

MR. SULSKI: Only to the extent that

L.A. REPORTING (312) 419-9292

they believe that the species -- you know,

the representative aquatic species lists are

adaptable to the types of systems that we're

dealing with here.

But that's not the ultimate list

of what can be -- what can adapt to these

systems. It's just a part of the universe.

MS. FRANZETTI: Are you saying that

Yoder did take into account adaptability to

the conditions in the Upper Dresden Island

Pool?

MR. SULSKI: Well --

MR. TWAIT: I don't know if that's the

correct term, adaptive to, for what Chris

did. But he did take -- he gave his expert

opinion on what might be in these waters and

whether they're adaptive to these waters. I

mean, he looked at other waters and other

systems and determined what he believed would

be representative in this system.

MS. FRANZETTI: Moving on to number

nine, given that the Brandon Pool is

immediately upstream of the Upper Dresden

Pool and the Brandon Pool is proposed for a

L.A. REPORTING (312) 419-9292

lower use designation and hence more lenient

water quality standards and DO, for the

example, than the Upper Dresden Pool which is

proposed for a higher use with more

restrictive water quality standards, has the

Illinois EPA considered the effect of ambient

water conditions that would continue to be

authorized upstream and whether this may

result in upstream dischargers causing

violations of the more restrictive water

quality standards that apply immediately

downstream of the Brandon Pool?

MR. ESSIG: I don't know if this was

directly considered, but in the event that

that did happen it could be handled through a

TMDL program.

MR. TWAIT: I don't know that ambient

water conditions is really appropriate here

because they're not really ambient coming

down into the Upper Dresden Pool because

these waters are heated effluent, so I don't

know that ambient would be there.

And the second part of that is if

this situation does occur and we could deal

L.A. REPORTING (312) 419-9292

with it the same way as we deal with the I-55

bridge where we have a less stringent

secondary contact standard going into the

general use standard where we could set a

water quality -- we could set an ambient

station there that the upstream dischargers

would have to meet at that point of

compliance.

MS. FRANZETTI: Right, so that you

could tell at the dividing line between

Brandon Pool and Upper Dresden Pool whether

or not the water quality standards are being

achieved at that location?

MR. TWAIT: Yes. Correct.

MS. FRANZETTI: But if they're not

being achieved, then there may be

ramifications for the dischargers upstream?

MR. TWAIT: Yes.

MR. SAFLEY: Do you mind if I ask a

follow-up question? When you mentioned this

issue perhaps triggering a TMDL process, do

you mean a TMDL for the Upper Dresden Island

Pool or a TMDL for the Brandon Pool or both

together?

L.A. REPORTING (312) 419-9292

MR. ESSIG: It would have to

incorporate the Upper Dresden Island Pool as

well as the upstream reaches that might be

impacting that. If the water quality

violations are occurring in the Upper Dresden

Island Pool, you'd look at all inputs to that

pool and those inputs also upstream.

MR. SAFLEY: Right. And I understand

that. I guess the scenario I'm thinking of

is if the Upper Dresden Island Pool is in

compliance except for what's coming out of

the Brandon Pool, then those upstream

dischargers are triggering the TMDL for the

Upper Dresden Island Pool; is that what

you're saying?

MR. ESSIG: For the TMDL we'd have to

take into account all sources, yes. I mean,

if there are point sources that are

contributing to that violation, yes, they

would be considered within the TMDL process,

I believe.

HEARING OFFICER TIPSORD: Mr.

Ettinger?

MR. ETTINGER: This is somewhat

L.A. REPORTING (312) 419-9292

hypothetical now, isn't it? Didn't we look

at whether or not the water quality is

meeting general use standards in the Upper

Dresden Pool? Is it meeting those standards

currently except for temperature and DO?

MR. TAIT: For temperature and DO, it

does not. Well, for temperature it does not.

For DO it may or may not.

MR. ETTINGER: But as to every other

parameter, the Upper Dresden Pool is meeting

general use standards?

MR. TWAIT: I believe so. Chloride is

going to be an issue also. But other than

that, yes.

MS. FRANZETTI: Just to follow up on

that point, when the Agency answers questions

like that, you are not considering any water

quality based limits that would be derived

under Subpart F, correct?

MR. TWAIT: Correct.

MS. FRANZETTI: And Subpart F, under

your proposal, will apply to Upper Dresden

Island Pool, right?

MR. TWAIT: Yes.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: So we don't know as we

sit here today how many of those chemicals

that are subject to derivation of a water

quality based effluent limit on dischargers

will or will not be met in Upper Dresden

Island Pool, correct?

MR. TWAIT: Yes. That is a good

point.

MS. FRANZETTI: But for the moment,

let's stay with temperature and DO, isn't it

foreseeable that upstream dischargers will

face more restrictive discharge limits than

what's been proposed here for the DO and

temperature water quality standards in order

to prevent them from contributing to

violations of the stricter proposed

downstream limit for Upper Dresden Island

Pool in these immediately adjacent water

bodies?

MR. TWAIT: That is possible, yes.

MS. FRANZETTI: Moving on to G,

Section 303.230, Aquatic Life A Use

Designation. In its Statement of Reasons,

the Illinois EPA states that this aquatic

L.A. REPORTING (312) 419-9292

life use designation is created specifically

for just a portion of the CAWS. I think

we've already answered this. Sorry. I

didn't read ahead. Let me skip it.

I think two has been asked and

answered. Same with three. I don't think we

covered four.

What is the intended meaning of

aquatic life populations as used in the

Aquatic Life Use A proposed regulation in

Section 303.230? Is it intended to exclude a

few fish of a given species that are

insufficient to qualify as a population?

MR. ESSIG: No. I think the use of

the term aquatic life population what we

meant by that was the organisms inhabiting a

particular area or locality.

MS. FRANZETTI: Even if there's just a

few of them?

MR. ESSIG: I don't think we can

consider numbers of organisms at that point.

MS. FRANZETTI: Okay. Moving on to

Roman six, QHEI/IBI Data, and these questions

relate specifically to Attachment R to the

L.A. REPORTING (312) 419-9292

Statement of Reasons which is the, quote,

analysis of physical habitat, quality and

limitations to waterways in the Chicago area,

end quote, by Edward T. Rankin, Center for

Applied Bioassessment and Biocriteria, what

we've referred to here by its acronym, CABB.

Question number one, Mr. Rankin

suggests that all or most of the CSSC be

classified as limited resource water. Does

the Agency agree this is the Ohio EPA's

lowest use classification for aquatic life?

MR. ESSIG: Yes.

MS. FRANZETTI: Question two, for the

Upper Dresden Island Pool area of the Lower

Des Plaines, Mr. Rankin notes that habitat

was good in the Brandon tailwater area,

paren, QHEI equaling 69.5, closed paren, but

comments that this site, quote, may not be

typical of the downstream reaches, end quote.

Does the Agency agree that the

Brandon tailwater area is not typical of the

Upper Dresden Island Pool habitat quality?

MR. ESSIG: Yes, it's not typical but

it is present and does provide higher quality

L.A. REPORTING (312) 419-9292

habitat than what is present upstream in

other waters.

MS. FRANZETTI: Question three, and

I'll skip the evidentiary type statement at

the beginning of it so as not to evoke any

objections. How are the contaminated

sediments in the Upper Dresden Pool -- wait,

I think we've already covered this. They're

really not being considered by the Agency.

You've already --

MS. WILLIAMS: Objection.

MS. FRANZETTI: Excuse me?

MS. WILLIAMS: I just didn't want you

characterizing the answer. If you want to

get the answer out on the record again, you

can ask it again.

MS. FRANZETTI: Okay. We can strike

my characterization if you think it was such.

Number four, with respect to the

Brandon tailwater area, Mr. Rankin also

states in his report, Attachment R, that,

quote, the isolation of this site, paren,

among impounded reaches, closed paren, could

influence the potential of that site, end

L.A. REPORTING (312) 419-9292

quote.

Does the Agency agree that the

isolation of the Brandon tailwater area

reduces its potential as available good

habitat for aquatic life in the Upper Dresden

Pool?

MR. ESSIG: No.

MS. FRANZETTI: Why do you disagree?

MR. ESSIG: There are major

tributaries that do come into the system;

Hickory Creek, Jackson Creek and then

downstream of I-55 you have the DuPage River

and Kankakee River. I would not consider

this to be an isolated segment.

HEARING OFFICER TIPSORD: Just a point

of clarification, you talked about

tributaries coming in downstream of the I-55

bridge?

MR. ESSIG: Well, there was

tributaries upstream of I-55 and then there

was also major tributaries coming in

downstream of I-55 also.

HEARING OFFICER TIPSORD: Okay. But

for Upper Dresden we're only talking about

L.A. REPORTING (312) 419-9292

everything north upstream of I-55, correct?

MR. ESSIG: There still are

tributaries coming into the Upper Dresden

Island Pool.

MR. SULSKI: Can you point out where

this isolation of this site is referenced and

is it from Rankin or --

MS. FRANZETTI: Yeah, it's from

Rankin. As I sit here, I would have to pull

it out and find it. Can I do it for you

later?

MR. SULSKI: Well, because I have a

note here that it's possibly taken out of

context because Rankin has -- says a lot more

than that about this system.

MS. WILLIAMS: But we can add that to

the list of things you'll get back to us on

later.

MS. FRANZETTI: Okay.

MR. SMOGOR: Can I make a comment?

Rankin's quote that it could influence the

potential of the site, that potential -- I'll

pass on that. Strike that, please. Never

mind. I won't go there.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: But let me go back to

your answer about the tributaries. Do any of

those tributaries go into the tailwater?

MR. ESSIG: Yes, Hickory Creek.

MS. FRANZETTI: Hickory Creek goes

into the tailwater?

MR. ESSIG: Yes, I believe so.

MS. FRANZETTI: Okay. And that's your

basis for saying --

MR. ESSIG: There is another

tributary, I believe, that also goes into a

smaller tributary. I believe it might be

Spring Creek. I'd have to double check.

MS. FRANZETTI: And that's your basis

for disagreeing to the extent --

MR. ESSIG: No. There's also Jackson

Creek that comes in through the downstream,

but it's still upstream of I-55.

MS. FRANZETTI: But Jackson Creek

doesn't come into the tailwater area.

MR. ESSIG: But you were referring to

the Upper Dresden Island Pool, I believe, not

just the tailwater.

MS. FRANZETTI: No. I was just

L.A. REPORTING (312) 419-9292

referring to the tailwater and what we think

is Rankin's view.

MR. ESSIG: I don't think Rankin was

referring to that that was isolated in

relation to the rest of the pool.

MS. FRANZETTI: Okay. You don't think

Mr. Rankin meant that the Brandon tailwater

is isolated with respect to the rest of the

pool?

MR. ESSIG: I don't believe so.

MS. FRANZETTI: Okay. Moving on to

question five, I think we've already answered

that, but let me ask, A, do the tailwater

areas experience the same temperature regime

as the other portions of the Upper Dresden

Pool?

MR. SMOGOR: I don't know. In the

eight miles of the Upper Dresden Island Pool

there's likely several different locations

that have -- that experience different

temperature patterns. So I don't know how

well the temperature is in that upper say

mile or half mile of Upper Dresden Island

Pool compare, are similar or dissimilar from

L.A. REPORTING (312) 419-9292

the other temperature regimes that are in the

lower part of that pool.

MS. FRANZETTI: Okay. You are aware,

though, that the Brandon tailwater area is

shallower than the majority of Upper Dresden

Island Pool, correct?

MR. SMOGOR: Yes.

MS. FRANZETTI: And so isn't it likely

that given -- well, do you know approximately

what the typical depth is in the Brandon

tailwater area?

MR. SMOGOR: Not offhand. Do you guys

know that?

MR. SULSKI: I mean, I've been in

areas that are very shallow, some are

six feet deep, some are eight feet deep at

least when I was there, so it varies

depending where you go. There's some rubble

areas. And then it depends on the time of

the year, as well, if there's no flow over

the damn.

MS. FRANZETTI: Isn't it likely

particularly in the summer months that that

shallower water in the Brandon tailwaters is

L.A. REPORTING (312) 419-9292

likely to get warmer than the rest of Upper

Dresden Island Pool due to solar input?

MR. SULSKI: Again, I'm not looking at

thermometer readings so it's hard to say. I

mean, is there water coming over the

tailwater? What's going on at the time? I

don't know.

MS. FRANZETTI: Well, would you agree

that it is likely that during the summer that

solar inputs to the Brandon tailwater area

are going to have a greater impact on its

thermal regime than are the thermal effluence

discharged by the Midwest Gen plants?

MR. SULSKI: I can't make that

determination. I would have to look at data.

MS. FRANZETTI: So as you sit here

today you don't know?

MR. SULSKI: I don't know.

HEARING OFFICER TIPSORD:

Mr. Ettinger, do you have a follow-up?

MR. ETTINGER: No. We'll look at the

discharge monitoring reports at Will County

later.

MS. FRANZETTI: Question 5B, how many

L.A. REPORTING (312) 419-9292

fish would you expect or estimate the Brandon

tailwater area of the Upper Dresden Pool to

support?

MR. SMOGOR: I don't know.

MS. WILLIAMS: Are you asking how many

species of fish I assume or how many actual

fish?

MS. FRANZETTI: Both.

MS. WILLIAMS: Because you say fishes,

right, when you're talking about species.

MR. SMOGOR: Right. When I refer to

species -- multiple species, I say fishes.

MR. SULSKI: I will answer the

question the same way as the temperature

question, I don't know.

MS. FRANZETTI: Moving on to question

six, isn't it true that overall habitat

quality in Brandon and Lockport Pools is poor

and only marginally better in Upper Dresden,

which is the conclusion Mr. Rankin reached?

MR. ESSIG: No.

MS. FRANZETTI: Mr. Rankin recommends

that the Upper Dresden Pool's use

classification should be, quote, modified

L.A. REPORTING (312) 419-9292

warm water habitat, acronym, MWH, hyphen,

impounded, end quote, using the Ohio EPA's

use classification system nomenclature.

Does the Illinois EPA agree that

Mr. Rankin concluded that Upper Dresden Pool

did not have the capability of attaining the

Clean Water Act Aquatic Life Uses?

MR. SULSKI: Well, Mr. Rankin

qualifies that statement saying that it's

based on preliminary data. One trip he went

out on with myself and we took two

measurements, however, he did get a look at

the system in general and he goes on to say

that it has more natural shoreline, for

example, with extensive shallows and cover.

So that's just -- I needed to clarify there,

that's all.

MR. SMOGOR: I would also like to add

that Rankin mentions that -- you used the

term recommendation, and in his titles of his

different sections in the report he does use

the word recommended category, but elsewhere

in the narrative he does qualify that and he

does call them preliminary suggestions.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: Moving on to number

eight, Mr. Rankin also states that, quote,

the physical patterns in these watersheds are

very strong and will have a predominant

influence on the types of assemblages one

might expect, end quote. Does the Illinois

EPA agree with Mr. Rankin's statement?

MS. WILLIAMS: Do you have a page?

MR. SULSKI: Yeah, do you have a page?

MS. FRANZETTI: I don't right here,

again.

MS. WILLIAMS: I don't think they

should answer if they can't go back to the

quote. I mean, is that reasonable?

MS. FRANZETTI: I will find it during

the break.

Moving on to number nine, I think

that's been answered.

In B, most of these were asked

back when Mr. Yoder was here. But I didn't

ask number six, at least according to my

notes. So moving to number six under B,

Aquatic Life Use Designations, Appendix Table

1, 2006 QHEI Attachment S. The QHEI scores

L.A. REPORTING (312) 419-9292

in Attachment S are significantly higher than

the 2004 Rankin CABB report's QHEI scores

that are Attachment R, as well as other QHEI

scores collected in previous QHEI surveys on

the Lower Des Plaines River which did not

identify QHEI scores in the Upper Dresden

Pool higher than 67, versus the Attachment S

QHEI scores of as high as 80.

Given these inconsistencies,

describe what the Illinois EPA has done to

confirm the reliability and accuracy of the

information contained in Attachment S.

MR. ESSIG: Well, I think Chris Yoder

addressed some of these concerns but I'd also

like to point out that the statement that

there were significantly higher QHEIs at all

sites, I don't think that's true. That was

primarily the tailwater area.

MS. FRANZETTI: I agree.

MR. ESSIG: And the site that MBI did

the tailwater area in 2006 I believe was

probably the furthest upstream the tailwaters

had been assessed, so that might accomplish

some of the differences.

L.A. REPORTING (312) 419-9292

Another issue I have with the

statement is that you've indicated that there

haven't been -- in previous studies there

haven't been previous QHEI values greater

than 67. I did find at least four, maybe

even five values in previous studies that

went up as high as 69.5.

MS. FRANZETTI: We'll change the 67 to

69.5. But has the Agency itself done

anything to confirm the reliability and

accuracy of the information contained in

Attachment S?

I understand what Mr. Yoder

testified to, that's on the record. I'm just

asking whether the Agency took that

Attachment S QHEI information and did any

sort of review, QAQC check, whatever you want

to call it?

MR. ESSIG: Did take a look at the

data sheets, compared them with some of the

other QHEI values taken in the area. But

beyond that and what Chris Yoder has

testified to, I think that's pretty much it.

MS. FRANZETTI: Okay. Moving on to

L.A. REPORTING (312) 419-9292

seven, does the Agency know what caused the

QHEI scores in Attachment S to be as much

higher as they are than the prior 2003-2004

surveys of the Lower Des Plaines?

MR. SULSKI: Didn't we address this

with Yoder?

MR. ESSIG: Yes, we did. I believe

there was --

MR. SULSKI: Well, what --

MR. ESSIG: I believe what Chris Yoder

had indicated during his testimony is that

the channel metric, I believe they had used a

version of the QHEI, didn't include

impoundments, and he went back and included

that so that did lower the scores at two of

the sites.

MS. FRANZETTI: Okay.

HEARING OFFICER TIPSORD: I'm sorry,

let me ask a follow-up. You said lower the

scores, but the Attachment S scores are

higher?

MR. ESSIG: Yes. What I meant was

after he reviewed the sheets, those scores

then came down.

L.A. REPORTING (312) 419-9292

HEARING OFFICER TIPSORD: Okay.

MR. ESSIG: So they were not that much

out of line anymore.

HEARING OFFICER TIPSORD: And for the

record, I did not have an indication that

this had been previously answered.

MS. WILLIAMS: Can I ask a follow-up,

as well? Howard, is that reflected in what

we've entered as Exhibits 5 and 6 into the

record?

MR. ESSIG: Yes.

MR. DIMOND: I would like to ask a

follow-up on that. The revised channel

metric that Mr. Yoder testified about, was

that used in the QHEI scores that were

developed, that were reported in the final

UAA report or that were reported in

Mr. Rankin's report?

MR. ESSIG: Could you repeat the

question?

MR. DIMOND: The revised channel

metric that Mr. Yoder indicated that he used

to revise the scores that were reported in

Attachment S, was that changed in the channel

L.A. REPORTING (312) 419-9292

metric used by Mr. Rankin for his report or

for the QHEI values that were reported in the

final QAA report?

MR. ESSIG: I believe Rankin did use

that.

MR. SULSKI: Yeah. That data came

after the UAA reports, so couldn't be

reflected in the UAA reports A and B.

MR. DIMOND: So the QHEI scores in the

UAA report do not reflect this revised

channel metric for calculating a QHEI; is

that right?

MR. ESSIG: I would have to check.

I'm not sure.

MR. SULSKI: The QHEI data within the

UAA reports, first the CAWS UAA that CDM did,

that it was based on Rankin's report which we

have as Attachment R.

MR. DIMOND: I'm really focusing on

the UDI Pool because that's all Mr. Yoder --

MR. SULSKI: Okay. On the Upper

Dresden Island Pool, we can go back to the

report and show you the sources of that data,

much of it came from Midwest Generation or

L.A. REPORTING (312) 419-9292

ComEd at the time. And those values are

contained with their sources on this series

of three maps that we gave out yesterday as

Exhibit 30. And those were -- much of those

were the basis of the Aquanova report.

MR. DIMOND: But it's not clear -- if

I look at Exhibit 30, will that tell me --

that won't tell me how they measured the

channel metric in accumulating the QHEI

scores, it just gives me a total score,

right?

MR. SULSKI: Yes. But then you can go

back to the source of these in the report.

MR. DIMOND: So, I mean, here's the

point is that Attachment S does not include

the revised channel metric. Now, Mr. Yoder

went back and calculated the revised channel

metric and we got some other exhibit, I

can't --

HEARING OFFICER TIPSORD: 5 and 6.

MR. DIMOND: -- Exhibits 5 and 6 that

have the recalculated numbers, but if that

revised channel metric wasn't used by

Mr. Rankin or if it wasn't used in the data

L.A. REPORTING (312) 419-9292

that was in the final UAA report for the

Upper Dresden Island Pool, then referring to

the change in the channel metric doesn't help

explain why Mr. Yoder's QHEI scores were so

much higher than the earlier scores because

they were using the same procedure that he

was using for the numbers that he calculated

in Attachment S.

MR. ESSIG: I would tend to agree. I

would have to check to see how that metric

was used in the earlier reports that were

used in the Lower Des Plaines report.

MR. DIMOND: Okay. Thank you.

MR. SULSKI: But to re-point out that

there are also some higher values that are in

line with what Yoder found from other sources

in different areas of the waterway and that's

laid out pictorially for you in this

Exhibit 30.

MR. DIMOND: Okay.

HEARING OFFICER TIPSORD: I have to

ask a follow-up because I'm really confused

now because I think we're getting two

different answers from the Agency.

L.A. REPORTING (312) 419-9292

Mr. Sulski, were the numbers from

Exhibits 5 and 6 used in the UAA report for

Upper Des Plaines River?

MR. SULSKI: No.

HEARING OFFICER TIPSORD: Thank you.

The Attachment S numbers are the numbers that

were used in the UAA report; is that correct?

MR. SULSKI: No.

MS. WILLIAMS: No.

HEARING OFFICER TIPSORD: Okay. I

give up then.

MR. SULSKI: You have to go back to

the UAA report and see where the numbers came

from.

HEARING OFFICER TIPSORD: All right.

Thank you. That was my confusion. My

confusion was I thought we were talking

about -- I'm okay now. I understand now.

Thank you.

MS. FRANZETTI: Is the one place that

the Yoder numbers -- we'll call them the

Yoder QHEI numbers are actually used or

mentioned is in your Statement of Reasons to

support these proposed rules; isn't that

L.A. REPORTING (312) 419-9292

right?

MR. SULSKI: That's likely true.

MS. FRANZETTI: That's the first time

we all hear about them and the Agency makes

any reference to them, correct?

MR. SULSKI: Correct.

MS. FRANZETTI: Okay.

MS. WILLIAMS: And can I ask a

follow-up?

MS. FRANZETTI: Sure.

MS. WILLIAMS: Is that because the

information came in after UAA reports were

completed?

MR. SULSKI: Correct.

MS. FRANZETTI: And just to complete

it so make sure everybody is on the same

page, the Yoder scores that are mentioned in

the Statement of Reasons are his uncorrected

QHEI scores?

MR. SULSKI: Correct.

MS. FRANZETTI: I think we got it now.

Moving on to question 17, I'm jumping a bunch

because they were asked back in January, but

this one the Agency asked to reserve and we

L.A. REPORTING (312) 419-9292

would come back to back in the January

hearing.

How much good -- and I'm defining

good habitat as having a QHEI score of

greater than 60. How much good habitat is

there in each of the subject areas involved

in this rulemaking, particularly in the Upper

Dresden Pool?

MR. ESSIG: I don't have a percent in

relation to area, but I do have a percent in

relation to the number of QHEI values that

have been generated in these waters.

MS. FRANZETTI: I think Mr. Essig

would you please explain a little more what

you mean by that so we understand when you

give us the percent, what it's a percentage

of?

MR. ESSIG: Basically the number of

QHEI values that have been determined since

the mid '90s all the way through 2006 is what

I'm referring to.

MS. FRANZETTI: Okay. Just, again, so

we can stay with you and I'm sorry to break

in, but are those -- and I hope the answer to

L.A. REPORTING (312) 419-9292

this is yes. Are those the QHEI values that

were just mentioned Mr. Sulski as being laid

out on the maps that were produced by the

Agency yesterday?

MR. ESSIG: Yes. There might be a few

more that aren't included in there.

MS. FRANZETTI: Darn.

HEARING OFFICER TIPSORD: And that's

Exhibit 30.

MS. FRANZETTI: Thank you. Okay. You

took QHEI values, most of which are on

Exhibit 30, but there may be a few more that

you used that are not.

MR. ESSIG: Let me explain.

MS. FRANZETTI: Okay.

MR. ESSIG: I went back to the Lower

Des Plaines UAA report, there was a table in

there that has QHEI values for the Brandon

and the Dresden Island Pool. It was cited to

the ComEd report of 1996 was the source of

that data.

Originally, I just used that data

from the Upper Des Plaines report. I decided

to go back to the original 1996 report and

L.A. REPORTING (312) 419-9292

then from there went to individual reports,

1993 fishers reports and '94 fishers report

that were generated by EA as part of that

Upper Illinois Waterways Survey.

MS. FRANZETTI: These are reports that

were cited in the ComEd 1996 report?

MR. ESSIG: Yes.

MS. FRANZETTI: Okay. So if somebody

wants to follow your train, go to the '96

report and then you also looked at references

that were contained in there?

MR. ESSIG: Yeah. And when I went to

those -- and some other reports also, I

think. I'd have to go back and check. I

basically used all those to look at the

percentages.

MS. FRANZETTI: All right. And now go

ahead to tell me what the percentages are you

derived.

MR. ESSIG: In the Upper Island Pool

roughly 15 percent would be classified as

good. In the Lockport Pool there would be

none.

MR. DIMOND: Just a clarification,

L.A. REPORTING (312) 419-9292

Mr. Essig, you said that there were none in

the Lockport Pool. Did you mean the Brandon

Pool?

MR. ESSIG: No. I'm referring to the

Lockport Pool on that one.

MR. DIMOND: What is the Lockport

Pool?

MR. ESSIG: Upstream Lockport Lock and

Damn.

MR. DIMOND: Is that even a segment at

issue in this proceeding?

MR. ESSIG: No, it's not.

MR. SULSKI: Well, it is under this

whole proceeding. It's part of the CAWS.

MR. DIMOND: It's part of the CAWS,

okay.

MS. FRANZETTI: Mr. Essig, did you

look at Brandon Pool or no?

MR. ESSIG: Yes, I did.

MS. FRANZETTI: Okay. You're pulling

that out for us?

MR. ESSIG: Yes.

MS. FRANZETTI: Okay. We'll wait.

HEARING OFFICER TIPSORD: This might

L.A. REPORTING (312) 419-9292

be a good time to take about a ten-minute

break and everybody get up and move around a

little bit.

(Whereupon, after a short

break was had, the

following proceedings

were held accordingly.)

HEARING OFFICER TIPSORD: During the

break I spoke briefly with Ms. Williams from

the Agency and she pointed out that part of

the materials that they filed with the Board

on March 4th include another qualitative

habitat evaluation index scores sort of map,

graph kind of thing.

And since we're talking about that

right now, we're going to go ahead and enter

that as Exhibit 32 if there's no objection.

Seeing none, we'll mark this as Exhibit 32.

(Document marked as

Exhibit No. 32 for

identification,

03/11/08.)

MS. WILLIAMS: Would it be helpful at

this point to explain what it is?

L.A. REPORTING (312) 419-9292

MR. CONSTANTELOS: Does anyone have

copies?

MS. WILLIAMS: It was in the packet.

HEARING OFFICER TIPSORD: Go ahead,

Ms. Williams.

MS. WILLIAMS: Sure. Mr. Smogor,

looking at what's been marked as Exhibit 32,

did you prepare this document?

MR. SMOGOR: Yes.

MS. WILLIAMS: Would you explain for

everyone what it means and what's contained

in there?

MR. SMOGOR: This is a visual summary

on one page of the information that's in

Exhibit 30, the QHEI scores that are assigned

to various locations on the maps in

Exhibit 30.

So this is one way of just looking

at all those scores summarized in graphs and

plotted by river mile throughout the Upper

Dresden Island Pool.

MS. WILLIAMS: Thank you.

HEARING OFFICER TIPSORD: And I

believe when we took a break Mr. Essig was

L.A. REPORTING (312) 419-9292

looking for some material to answer a

question.

MR. ESSIG: Yes. The percent of QHEI

scores greater than 60 in the Brandon Pool

would have been 0 percent.

MS. FRANZETTI: I'm sorry, 0 percent?

MR. ESSIG: Zero percent.

MS. FRANZETTI: This question number

18 may have been answered generally, but I

would just like to make sure more

specifically I know the answer to this one so

I'm going to ask it.

Has it been determined whether any

of the areas that received QHEI scores

greater than 60 with apparently good habitat

are, in fact, unusable as good aquatic

habitat because of legacy pollutants and

sediment?

MR. SULSKI: It has not been

determined. There isn't -- we didn't have

information to make that determination.

MS. FRANZETTI: Okay. I'm sorry, I'm

jumping. Everything else has been asked

through -- go all the way to question 26.

L.A. REPORTING (312) 419-9292

Now, just by way of clarification because it

was supposed to follow 25 but I think you've

answered 25 yesterday and somebody else asked

the question about the fact that the IBI

scores are generally 20 suggesting that the

existing aquatic life is not achieving its

expected biological potential and I think,

Mr. Sulski, you've already explained that;

would you agree?

MR. SULSKI: Where are we at in terms

of waterway reaches?

MS. FRANZETTI: We're in Upper Dresden

Island Pool.

MR. SULSKI: Okay. I believe I

answered that.

MS. FRANZETTI: Right. Okay. And

then so question 26 is how do the many

chemical and physical causes of non- to

partial attainment identified by the Illinois

EPA in their 305B report contribute to these

low IBI scores?

MR. ESSIG: When you're talking about

the many chemicals and the physical causes,

are you still referring to the Upper Dresden

L.A. REPORTING (312) 419-9292

Island Pool?

MS. FRANZETTI: Yes.

MR. ESSIG: There were no causes

listed for the Upper Dresden Island Pool in

the 2006 report. It was assessed as meeting

indigenous aquatic life use, the current

designation for that.

MS. FRANZETTI: Yes. Okay. I stand

corrected. Let me change the question then

taking it away from the 305B report. Have

you looked at whether there are any chemical

or physical causes of that reduced IBI score

for Upper Dresden Island Pool?

MR. ESSIG: I personally have not

compared it to the general use standards.

That was done in the Lower Des Plaines UAA

report, I believe.

MS. FRANZETTI: I'm sorry, Mr. Sulski,

did you want to --

MR. SULSKI: He clarified. I wanted

to clarify that wasn't Howard's duty to

assess these waterways for proposed higher

uses.

MS. FRANZETTI: Right.

L.A. REPORTING (312) 419-9292

MR. SULSKI: However, an assessment

was done in the UAA reports.

MS. FRANZETTI: Let me ask the

question a little differently. Mr. Sulski,

you've noted that you think that, you know,

there is a disparity between the IBI scores

that are down in the generally 20 range and

the QHEI scores for the Upper Dresden Pool.

Has the Agency done an evaluation

or review to identify what are the causes of

the IBI scores being relatively lower than

you think they should be based on the QHEI

scores?

MR. SULSKI: That's the nature of what

the UAAs did. They did a water quality

assessment as a part of the process and a

near initial part of the process to look at

the existing chemical and physical conditions

and then compare them against the biological

conditions. And when they don't meet, then

they try to find out the reasons, try to

identify the stressors. So, yes, we did it

through our contractors.

MS. FRANZETTI: And what did your

L.A. REPORTING (312) 419-9292

contractors conclude were the reasons for the

depressed IBI scores in comparison to the

QHEI scores?

MR. SULSKI: In the Upper Dresden

Island Pool or across the system?

MS. FRANZETTI: Upper Dresden Island

Pool.

MR. SULSKI: Temperature was

identified as a significant stressor.

MS. FRANZETTI: Anything else?

MR. SULSKI: Was DO on the edge?

MR. TWAIT: Yes.

MR. SULSKI: DO was another

parameter -- chemical parameter.

MS. FRANZETTI: Anything else?

MR. TWAIT: Off the top of my head I

believe copper was also, but we've -- I

believe copper was also.

MR. SULSKI: Let me add that copper

was also identified in CAWS. We were able to

look at data when we put together this

proposal that was generated and submitted to

us afterward, after the reports were done at

the conclusion of the contractor's work and

L.A. REPORTING (312) 419-9292

at least in the case of CAWS many of those

parameters of concern dropped out.

MS. FRANZETTI: You know, if I may,

and if you don't know the answer I'll

understand, but just as an aside we really

haven't discussed the contractor who did the

UAA report for the Lower Des Plaines, that

was Dr. Novotny and Hey and Associates. Are

you familiar with what their prior experience

was or familiarity was with the Lower

Des Plaines River that they did the UAA

report on?

MR. TWAIT: No, I can't say that I

would know.

MS. FRANZETTI: Okay. Moving on,

question 27, I'll skip the preamble part and

just let me ask the first foundationary

question. Has ammonia been identified as a

major stressor in the system?

MR. ETTINGER: Currently or ever?

MS. FRANZETTI: Currently.

MR. ESSIG: Are you referring to the

UAA report or to the Section 305B, 303D

assessment?

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: Anything. I don't

want to exclude anything. I'm trying to

understand whether the Agency thinks that

ammonia is a major stressor in the system.

MR. ESSIG: I'm going to refer to the

305B, 303D report. Ammonia was not listed as

a cause of impairment for the Upper Dresden

Island Pool because it was considered to be

meeting its designated use.

Ammonia was identified as a

potential cause in one the Sanitary Ship

Canal segments and also in the Grand Calumet

River. Those were the only two segments that

listed ammonia. And I would not consider

them to be major stressors in the -- the

violations of the water quality standards

were rather low compared to other stressors

like dissolved oxygen.

HEARING OFFICER TIPSORD: Mr. Essig,

you need to keep your voice up. You trail

off especially when you start looking down at

your notes.

MS. FRANZETTI: And just so we can put

that in perspective for purposes of the

L.A. REPORTING (312) 419-9292

proposed rules, and I must admit offhand I

forget, do the proposed rules propose to make

the ammonia standards stricter than the

current secondary contact against which those

conclusions were made?

MS. WILLIAMS: Are we asking about the

entire waterway here?

MS. FRANZETTI: Well, I mean, I was

trying just for simplicity, but you know

what, I'll take it as just stick with the

Lower Des Plaines River portions, Chicago

Sanitary and Ship Canal, Brandon and Upper

Dresden Island Pool.

MR. TWAIT: Yes, I believe they are

more stringent than the other standards.

MS. FRANZETTI: And so, therefore, if

a comparison were done today using the same

data Mr. Essig was referring to, we might

find both more and a greater severity of

noncompliance with the proposed standard?

MR. TWAIT: Let me look through --

MS. WILLIAMS: Let's pull out the

current standard.

MR. ETTINGER: Which waters are we

L.A. REPORTING (312) 419-9292

talking about, the waters in which Mr. Essig

identified had been listed as an ammonia

problem or the Upper Dresden Pool?

MS. FRANZETTI: Okay. Good point.

Why don't we stick with what Mr. Essig relied

on.

MR. ESSIG: It would have been the

Sanitary and Ship Canal and the Grand Calumet

River.

MR. SULSKI: Can I tell you about

ammonia in the Lower Des Plaines system first

and then we'll look into CAWS?

MS. FRANZETTI: Sure. I think that

would be helpful.

MR. SULSKI: You can find the results

of that on Page 244 of Attachment A of --

these are the UAA conclusions for the Lower

Des Plaines. And I'll summarize it for you,

but you can read it to yourself. And that is

that both an acute and a chronic standard

would be met. In other words, they didn't

identify ammonia as a stressor in the system

based on their comparisons.

MS. WILLIAMS: It's my recollection --

L.A. REPORTING (312) 419-9292

I don't know if this helps or makes it more

confusing, but it's my recollection that at

the time this report was prepared that

Illinois was in the process of updating its

ammonia water quality standards.

So I don't think -- I mean, they

looked at the criteria document that that

update was based on, but I don't know per se

that anyone looked at that time at what's on

the books now for general use.

MS. FRANZETTI: Well, tell you what,

in the interest of time do you want to set

aside this specific question about what do we

think will be the state of compliance with

the proposed ammonia water quality standards?

MR. SULSKI: Good call.

MS. FRANZETTI: Arguably, it's

starting to get into the criteria which we --

moving on to C, QHEI/IBI Data, CAWS and

Brandon Pool Aquatic Life Use B Waters. And

I know since these questions were submitted

we now have had a lot of QHEI maps and scores

come out. In looking at the Exhibit 32 that

we were just referring to earlier, is it

L.A. REPORTING (312) 419-9292

correct that stops at Brandon Lock and Damn,

so it would not address the Brandon Pool QHEI

data, correct?

MR. SMOGOR: Correct.

MS. FRANZETTI: Do we now have a map

that would show QHEI data in Brandon Pool?

MR. SMOGOR: No.

MR. SULSKI: No.

MS. FRANZETTI: All right. So then I

should still ask this question. I thought

that was the case but I just wanted to

clarify.

Question one, on Page 17 of the

Sulski pre-filed testimony it is stated that

the, quote, QHEI scores in the CAWS and

Brandon Pool Aquatic Life Use B Waters

generally are below 40 and IBI scores

generally are below 22, which are to be

expected in waters with very poor to poor

habitat attributes. Identify the source or

attachment in which this QHEI data is

contained.

MR. SULSKI: And then I would refer to

both of these Exhibit 30 and -- well,

L.A. REPORTING (312) 419-9292

Exhibit 30 will give you the sources.

MS. FRANZETTI: Okay.

MR. SULSKI: Wait, we're talking

about -- not for Brandon. So for Brandon

Pool it would be the Attachment A.

MS. FRANZETTI: The UAA report?

MR. SULSKI: Correct. And then the

source is cited in that report.

MS. FRANZETTI: Okay. On Pages 11 to

12 of the Twait pre-filed testimony it is

stated that White Sucker was added to the

list of representative aquatic species, RAS,

for the CAWS and Brandon Pool Aquatic Life

Use B Waters, quote, based on the fact that

White Sucker is present in certain waters.

Identify the waters referenced in this

testimony and the data on which this

statement is based.

MR. TWAIT: I want to make a

clarification here. The White Sucker was not

added to the CAWS and Brandon Pool life Use B

waters. The White Sucker was added to the

CAWS Aquatic Life Use A waters.

MS. FRANZETTI: Okay. And so was your

L.A. REPORTING (312) 419-9292

testimony referring to certain waters in the

Aquatic Life Use A areas?

MR. TWAIT: Yes.

MS. FRANZETTI: Can you tell us which

those are?

MR. SMOGOR: Not off the top of my

head. But when Scott asked me about that I

was using the fish data that were in the CAWS

UAA Attachment B.

MS. FRANZETTI: So Mr. Smogor, what

you're telling me is if I go look at

Attachment B, the UAA report for the CAWS, I

should find some information about where

White Sucker is present?

MR. SMOGOR: Yeah.

MS. FRANZETTI: Okay. Moving on to

Roman seven, Effluent and Waterway Management

Controls, and this regards Mr. Sulski's

pre-filed testimony at Page 18. Number one,

regarding a statement that, quote, the UAA

found that attainable uses were in some cases

not achievable without overcoming dissolved

oxygen, temperature and bacteria limitations,

what, quote, unquote, cases are being

L.A. REPORTING (312) 419-9292

referred to here?

MR. SULSKI: It would be in the CAWS

UAA Report B, they went reach by reach and

identified which reaches failed their

screening criteria for various parameters,

including oxygen, temperature and bacteria.

MS. FRANZETTI: Moving on to question

two, does the Illinois EPA contend that the

attainable use for the Chicago Sanitary and

Ship Canal is not attainable solely because

of temperature?

MR. SULSKI: I believe there were DO

deficiencies or DO and temperature conditions

identified in the Chicago Sanitary and Ship

Canal.

MS. FRANZETTI: So it's not the

Agency's position that temperature alone is

preventing any such use from being attained?

MR. SULSKI: Correct.

MS. FRANZETTI: Same question, number

three, with respect to Upper Dresden Island

Pool, does the Illinois EPA contend that an

attainable use for the Upper Dresden Pool is

not attainable solely because of temperature?

L.A. REPORTING (312) 419-9292

MR. SULSKI: For the most part, yes.

MS. FRANZETTI: I'm sorry, so for the

most part you are contending that temperature

is preventing the Upper Dresden Pool from --

MR. SULSKI: Yes.

MS. FRANZETTI: Okay. So can you

identify what the use is that's not being

attained due to temperature and the basis

including any supporting technical and

scientific data for the statement that for

the most part temperature is preventing any

such use from being attained?

MS. WILLIAMS: Well, can we break this

up, I'm getting lost?

MR. SULSKI: Well, if you refer back

to the Aquanova UAA report, Attachment A,

there's discussion in their comparisons that

the temperatures at times would be lethal.

And then if you look at the criterion or the

criterion parts of the standard, the

temperature numbers that we're proposing and

you compare existing conditions to those,

then that supports what the Lower Des Plaines

UAA is contending.

L.A. REPORTING (312) 419-9292

MS. FRANZETTI: And at those times

when the Aquanova report says the there were

lethal temperatures, were there reports of

fish kills?

MR. TWAIT: I'm sorry, I thought Rob

said that the Aquanova report was talking

about -- the Aquanova report, as I have said

before, misspoke when they said that there

was lethal temperatures.

MS. FRANZETTI: That's what I thought

he said in January but I thought maybe we

were changing the position again.

MR. TWAIT: No. I misunderstood Rob

when he said -- if he said that. And I've

made some corrections that were submitted and

those statements made by Aquanova were not

correct --

MS. FRANZETTI: Okay.

MR. TWAIT: -- about the ambient

temperature.

MS. FRANZETTI: Right. I understand.

And that's why I am pressing for what is the

basis for saying that it's temperature that

for the most part is preventing the Upper

L.A. REPORTING (312) 419-9292

Dresden Pool from attaining a higher use?

MR. SULSKI: Well, I'm going to let

Scott follow up because I don't want to cut

my throat here. But it's my understanding

that temperature is the only limiting factor

left in trying to identify stressors in the

Upper Brandon Pool is what we're -- or I'm

sorry, in the Upper Dresden.

MR. SMOGOR: When you say --

MR. SULSKI: Let me strike that

because we're back in the Upper Dresden

Island Pool.

MR. TWAIT: According to our

contractor, the Upper Dresden Island Pool

should have lower temperatures based upon his

analysis, so that's where that statement

would come from that we believe it's a

limiting factor.

MS. FRANZETTI: Mr. Twait, do you

believe there are other limiting factors in

Upper Dresden Island Pool?

MR. TWAIT: I'm not sure.

MS. FRANZETTI: What about --

MR. TWAIT: I think temperature is the

L.A. REPORTING (312) 419-9292

major factor here.

MS. FRANZETTI: Do you think that flow

alteration is a factor?

MR. TWAIT: I would have to defer to

the biologists.

MS. FRANZETTI: All right. We've

already established, we just don't know

about -- or the Agency doesn't feel it knows

enough to say whether contaminated sediment

is. What about lack of adequate good to

excellent habitat, that's not a major factor?

MR. TWAIT: I would have to defer to

the biologists for that.

MR. SMOGOR: If I may, the use that we

proposed for Upper Dresden Island Pool, the

biological potential that that use

represents, we believe that that potential is

attainable given the irreversible human

impacts that occur in Upper Dresden Island

Pool which include some aspects of flow that

are obviously non-natural and also some

aspects of habitat that fall short of

obviously non-natural habitat.

But given the availability of that

L.A. REPORTING (312) 419-9292

template, which we're judging is

irreversible, we still believe that the goal

that we've set for that water in terms of the

aquatic life use is reasonable.

MS. FRANZETTI: Okay. And accepting

that, is it the Agency's position that -- let

me step back because this is important I

think, very important points for all of us to

understand.

Today, the Agency's position is

that Upper Dresden Pool does not attain the

proposed use designation?

MR. SMOGOR: Yes.

MS. FRANZETTI: Okay. And what the

Agency is saying is that the major reason it

doesn't is temperature?

MR. SMOGOR: Yes.

MS. FRANZETTI: No other significant

causes to it not being able to attain today

this proposed use?

MR. SMOGOR: We believe that the

primary problem keeping it from reaching that

goal that we've set is temperature and

temperature related. Temperature has effects

L.A. REPORTING (312) 419-9292

on other things, one notable one is dissolved

oxygen. The warmer the water gets, the less

it can hold dissolved oxygen. So there are

these synergistic effects of temperature on

factors other than just the temperature

effect on the organisms living there.

MS. FRANZETTI: But Mr. Smogor, didn't

we just -- I think it was yesterday and I

think it was Mr. Twait who pointed it out

that at the I-55 bridge where there is

extensive monitoring done of both temperature

and DO and even at the current higher thermal

standard that applies from what you've

proposed here for I-55, Mr. Twait, didn't you

say you don't see DO violations even of the

more stringent DO standard that exists today

than what you proposed here?

MR. TWAIT: That's the limited data

that I looked at in Appendix A, that is

correct.

MS. FRANZETTI: That data is limited?

MR. TWAIT: I believe the data that I

was looking at just had a couple years in it.

MS. FRANZETTI: Okay.

L.A. REPORTING (312) 419-9292

MR. SMOGOR: But I'd also like to add

I do believe that the Attachment A, the Lower

Des Plaines River UAA does provide some

evidence of excursions below the existing

standard -- I'm sorry, below the existing

general use standard.

They did compare it to the

existing general use standard which has since

changed, effectively, excursions below 5.0

milligrams per liter.

HEARING OFFICER TIPSORD: And we're

talking about dissolved oxygen when you talk

about excursions, not temperature?

MR. SMOGOR: Dissolved oxygens, sorry.

MS. FRANZETTI: Do you know whether

any of those were associated with CSO events?

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

MS. FRANZETTI: Would you agree that

that would be a relevant consideration before

temperature is blamed?

MR. SMOGOR: Sure.

HEARING OFFICER TIPSORD: Ms.

Franzetti, before you move on, Mr. Twait,

earlier you referenced the fact that you had

L.A. REPORTING (312) 419-9292

submitted some edits to the UAA Attachment A

on the thermal issue in particular. And

since we're discussing that, I think it might

be helpful if we go ahead and enter that as

an exhibit, as well. Just to be sure, it's

the edits to the Lower Des Plaines UAA,

Attachment A to the Illinois EPA's Statement

of Reasons that was filed on March 4th; is

that what you were referring to?

MR. TWAIT: Yes.

HEARING OFFICER TIPSORD: Those were

filed on March 4th and we will enter that as

Exhibit No. 33 if there's no objection.

Seeing none it is Exhibit 33.

(Document marked as

Exhibit No. 33 for

identification,

03/11/08.)

HEARING OFFICER TIPSORD: Go ahead,

Ms. Franzetti.

MS. FRANZETTI: I think in the

exchange that we just had I pretty much

covered question four.

Question five, can you describe

L.A. REPORTING (312) 419-9292

the expected improvements to these

limitations caused by temperature that will

occur, and I'm going to change this to the

Upper Dresden Pool, based on requiring

effluent cooling?

MR. SULSKI: I should strike Sanitary

Ship Canal?

MS. FRANZETTI: For now. I want to

stay with -- we were just talking about the

Upper Dresden Pool so I want to stay with

that. The next question is the same question

with the Upper Dresden Pool so I'm really

asking question six before question five.

MR. SULSKI: Well, a couple of things

come to mind. If you have an elevated

temperature that is pervasive throughout some

portions or that creates a block in a system,

you're going to disrupt aquatic species for

migrating around that system.

For example, the temperature is

high, they'll want to avoid it, they won't be

able to get at these pockets of habitat that

we've identified. That's something that

comes to mind.

L.A. REPORTING (312) 419-9292

And then just general improvements

that occur with the lowering of temperature

and removing that stressor, general

improvements in aquatic life assembly.

MS. FRANZETTI: Same question with

respect to the Chicago Sanitary and Ship

Canal, please describe the expected

improvements to the, quote, limitations, end

quote, caused by temperature that will occur

in the Chicago Sanitary and Ship Canal based

on requiring effluent cooling.

MR. SULSKI: I would reiterate what I

just said about the Upper Dresden Island

Pool, but I would add the dissolved oxygen

problems that also exist more dramatically in

the south branch of the upper Chicago

Sanitary and Ship Canal so that now you have

two major stressors interacting with each

other so removal of either one of those will

result in improvement -- should result in

improvements.

The other thing that's a little

unique to this situation is if you look at

the -- I'm going to call it the Lockport

L.A. REPORTING (312) 419-9292

Pool, although it's not been referred to, but

we'll call the Lockport Pool everything

that's upstream of the Lockport area and goes

out to the control structures that prevent

water from coming in and out of Lake

Michigan. We have the Calumet system on the

south and then we've got the Chicago River

system on the north.

Well, sort of in the middle you've

got the south branch and the upper part of

this Chicago Sanitary and Ship Canal. If you

have a stressor blocked there, you've really

basically cut off communications, you've

essentially reduced that to two zones now,

and so you're preventing migration,

immigration, emigration through that system

by aquatic wildlife, you've set up a block.

So that's an added problem in that system.

For example, there's limited

habitat for spawning purposes in the Chicago

River system. However, if you get into the

Little Calumet River system and the Little

Calumet lower leg where there's general use

waters and that, you have more availability

L.A. REPORTING (312) 419-9292

there. But if you cut off the communications

in that system, you know, that's an

impairment right there in my view.

MS. FRANZETTI: When you say the

communications in that system, do you mean

the ability to get from one spot to another

throughout the system?

MR. SULSKI: Yes.

MS. FRANZETTI: But isn't that already

somewhat inhibited by that invasive species

electric barrier?

MR. SULSKI: Well, that's true, but

that invasive barrier is downstream, there's

communication cut off between -- in that

lower Sanitary Ship Canal between the barrier

zone area and whatever can come in at the

Lockport lock, but that's a small Use B

reach. That's already limited by severe

habitat restrictions and that.

I'm talking about in the south

branch and the north Sanitary Ship Canal,

just a thermal and DO bifurcation of that

whole system.

MS. FRANZETTI: Do you know whether

L.A. REPORTING (312) 419-9292

100

that bifurcation, you've also called it I

think blockage, occurs presently? I mean,

isn't it possible that the temperatures will

stratify vertically and allow fish to swim

under the warmer surface waters?

MR. SULSKI: I don't have the data to

support that.

MS. FRANZETTI: Or to refute it?

MR. SULSKI: I do have some data on

dissolved oxygen that indicates dissolved

oxygen drops to zero at times.

MS. FRANZETTI: During CSOs, correct?

MR. SULSKI: Yes.

MS. FRANZETTI: That is not typically

a time of high effluent temperature being the

cause of the ambient elevated temperatures,

correct?

MR. SULSKI: That is correct.

However, the CSO events consist of solids and

floatable material, organically rich material

which then settles out in the system again

and then gets churned up by barges and

traffic. And then if the temperature is

raised, it starts decomposing. It's an -- I

L.A. REPORTING (312) 419-9292

101

couldn't design a better in situ treatment

system than exists there, I'll tell you.

HEARING OFFICER TIPSORD: Mr. Harley,

you have a follow-up?

MR. HARLEY: Mr. Sulski, is it your

testimony that temperature block at a single

location in a stretch of waterway can affect

the entire waterway?

MR. SULSKI: Yes.

MR. HARLEY: Where are the temperature

blocks in the Chicago Sanitary and Ship

Canal.

MR. SULSKI: The south branch and the

upper Sanitary Ship Canal.

MR. HARLEY: Can you attribute those

temperature blocks to specific sources?

MR. SULSKI: Yes.

MR. HARLEY: What are those sources?

MR. SULSKI: Power plants.

MR. HARLEY: How do the temperature or

the thermal conditions attributed to those

power plants affect DO levels in the Chicago

Sanitary and Ship Canal?

MR. SULSKI: In a number of ways.

L.A. REPORTING (312) 419-9292

102

I'll cite two, which I already did. If you

raise the temperature, you raise the

activities of decomposers, organisms that

decompose organic matter. And if you have

food there for them, their metabolic rate

will increase and they will start to consume

those organics and may extract oxygen from

the waterway, so the oxygen subsequently

lowers.

I lost my train of thought.

Sorry. Could you repeat the question? I had

a couple in mind and I lost my train of

thought.

MR. HARLEY: Yeah. You said that

there were two ways in which temperature and

DO were related to one another.

MR. SULSKI: Okay. The other thing is

saturation -- a chemical saturation

situation. The higher the temperature, the

less dissolved oxygen water can hold.

MR. HARLEY: And so is it your

testimony that if you were to limit excessive

thermal conditions in waste water from the

sources you've identified, that would improve

L.A. REPORTING (312) 419-9292

103

both temperature and DO conditions in Chicago

Sanitary and Ship Canal?

MR. SULSKI: Correct.

HEARING OFFICER TIPSORD: Mr. Harley,

you need to identify yourself for the court

reporter.

MR. HARLEY: I'm sorry. My name is

Keith Harley, Chicago Legal Clinic on behalf

of the Southeast Environmental Task Force.

HEARING OFFICER TIPSORD: Thank you.

MS. FRANZETTI: I'm sorry, Mr. Sulski,

I just don't understand how you can adamantly

or definitively say there are blockages when

you can't tell me whether or not it is

vertically stratified or not.

I specifically asked the question

of is it possible that the temperatures will

stratify vertically and allow fish to swim

under the warmer water and you said you don't

know.

MR. SULSKI: I don't know.

MS. FRANZETTI: So how can you answer

Mr. Harley and say there's a blockage there?

I don't understand.

L.A. REPORTING (312) 419-9292

104

MR. SULSKI: Okay. It's my

understanding through the interaction of

dissolved oxygen and temperature that we have

a multi-stressor block in that system with

contributions from both temperature and DO

and I think that that would occur regardless

of whether there's a zone to go below a

higher temperature or not.

MS. FRANZETTI: What's your

understanding based on? I mean, other than

your opinion, what data is it based on?

MR. SULSKI: I have data that

dissolved oxygen drops to zero in that zone.

MS. FRANZETTI: When?

MR. SULSKI: After overflow events.

MS. FRANZETTI: Okay.

MR. SULSKI: And I also know that

temperature increases metabolic rate, and so

based on that connection, that that

exacerbates that problem.

MS. FRANZETTI: I understand those

principals. Have you looked at your data of

when you get those low DOs down to zero

what's happening on temperature? I mean, has

L.A. REPORTING (312) 419-9292

105

temperature gone up at the time that you get

those low DOs so you see a correlation

between high temps, low DO?

MR. SULSKI: Let me give you my

observations of what occurs out in the

waterway.

MS. FRANZETTI: No. I'm asking you

about data. Is there data to back up this

alleged connection between the cause of the

low DOs being high temperatures? That's what

I am asking. I don't want judgments anymore.

I want to know if there's data to back up

these judgments.

MR. SULSKI: Okay. Let me just -- may

I just explain to you what happens during a

fish kill or a stress situation in that zone

of the waterway?

MS. FRANZETTI: Mr. Sulski, you could

explain it but it's not the question I'm

asking. And I don't know why the Agency is

fighting us on this. Is there or isn't there

this data?

MR. SULSKI: I'm not trying to fight

you.

L.A. REPORTING (312) 419-9292

106

MS. WILLIAMS: Are you asking if there

is or is not thermal stratification data, is

that your question?

MS. FRANZETTI: No. I'm asking

whether there is data showing that when

you're getting these low DOs that are

apparently now being blamed on the high

temperature, you have data showing there's

high temperatures at the time or higher

temperatures causing these low DOs. I want

to see if the data supports the judgments.

MS. WILLIAMS: So you're asking if

there's contemporaneous data for temperature

and DO at the low DO times that can be

compared to each other?

MS. FRANZETTI: Right.

MR. SULSKI: I haven't personally

looked at that same time comparison. I

believe that the data exists. And I believe

that the contractor got some of that data,

too, because we were supplied with a lot of

continuous monitoring data by MWRD that

includes temperature and DO.

MS. FRANZETTI: Okay. You think it

L.A. REPORTING (312) 419-9292

107

exists but you don't know whether it shows

that correlation?

MR. SULSKI: Well, I know that the

data exists and I would have to go back to

prove that relationship, yes.

MS. FRANZETTI: Okay. Fair enough.

MR. SULSKI: I would like to add

something to that.

MS. FRANZETTI: Okay.

MR. SULSKI: And that is my

observations on when fish kills and fish

stresses because we're talking about

blockages that include thermal and DO

situations. There's a third example that

occurs. And this is when we get fish kills

in stress situations in the south branch and

in the upper Sanitary Ship Canal, it's a

typical situation where you have the hot

season, late July/August, the temperatures

are elevated, especially in that reach of the

river, you have a storm event that results

in -- are you listening?

MS. FRANZETTI: I'm listening. I'm

trying to find the south branch on the map.

L.A. REPORTING (312) 419-9292

108

MR. SULSKI: Please do.

MS. FRANZETTI: Okay. I'm sorry,

Mr. Sulski, just so we can understand where

you're talking about, when you refer to the

south branch could you take one of the maps?

Some people are saying are you talking about

Bubbly Creek.

MR. SULSKI: Yes. If you'll hone in

on your Fisk and Crawford power plants,

that's the area I'm talking about.

MS. FRANZETTI: In between those two?

MR. SULSKI: Up stream, downstream,

around those areas.

MS. FRANZETTI: Okay.

HEARING OFFICER TIPSORD: And for the

record, those are marked in red on all three

exhibits, 27, 28 and 29. The Fisk and

Crawford plants. I'm sorry, just on Exhibits

26 and 27. Sorry. It's all running

together.

MS. FRANZETTI: And Mr. Sulski, again,

before you go further, when is or was the

fish kill that you're talking about that's in

this area?

L.A. REPORTING (312) 419-9292

109

MR. SULSKI: I've worked for the

Agency for 25 years, I can give you fish

kills and fish stress times that were

reported and that we went out and

investigated. So they've occurred on and off

for the last 25 years that I have been with

the Agency.

MS. FRANZETTI: In this area?

MR. SULSKI: In that area, yes.

MS. FRANZETTI: Okay.

MR. SULSKI: Fish stress situations

where the fish are at the surface sucking

water, that the carp are up at the surface

sucking air I mean, so that's a stress

situation.

Typically what occurs in this

system is in July and August when the

temperatures are as high as they get in that

reach, we have these significant storm

events, the sewers overflow, organic matter

gets put into the system, the DO drops to

zero or somewhere around there and the

temperature drops. So what happens is the

fish get triple whammied.

L.A. REPORTING (312) 419-9292

110

First of all, they're under a

stress situation because of high temperature,

then you drop the temperature by more than

four or five degrees, that's a reverse

thermal stress situation, then you hit them

with all this sewage and you drop the oxygen

down to zero and they croak. They don't

outright croak, they're sucking air at the

surface or they're just floating back down

the system.

So this is a third situation as an

example of what occurs in this zone. And

this is why I bring in both temperature and

oxygen as leading stressors in that

situation. And if that occurs every year,

it's a triple whammy stressor.

MS. FRANZETTI: Is there data on these

fish kill situations you're talking about?

MR. SULSKI: There are investigations

and reports, yes.

MS. FRANZETTI: Okay. Are any of

these in the last ten years?

MR. SULSKI: I believe there are some

in the last ten years, yes.

L.A. REPORTING (312) 419-9292

111

MS. FRANZETTI: Okay. We're not

aware.

MR. SULSKI: I have a good file on

that.

MS. FRANZETTI: Okay.

MR. SULSKI: That won't account for

situations where fish aren't dead in huge

numbers where it gets reported to us. We

respond to reports. We don't run out there

when that situation occurs. The data will

be -- it will underestimate the situation.

But we'll provide you with that.

MS. FRANZETTI: Okay. Moving on to

question six, describe the expected

improvements to any, quote, limitations

caused by temperature that will occur in the

Upper Dresden Island Pool based on requiring

effluent cooling.

MR. SULSKI: Well, if we remove what

we consider to be a thermal -- if what one

would consider to be a thermal barrier, there

would be more freedom for aquatic life to

move about the pool and get into and out of

some of these zones of reasonable habitat

L.A. REPORTING (312) 419-9292

112

that we've identified.

MS. FRANZETTI: Okay. More freedom of

movement for the aquatic life. Any other

expected improvements from requiring effluent

cooling for Upper Dresden Island Pool?

MR. SULSKI: Well, I would expect that

if we remove stressors, temperature being

one, that are subsequent assessments, that

being IBI, et cetera, would be more

commensurate with the habitat that exists out

there as opposed to currently the disparity

that exists between what we expect based on

habitat to what is actually occurring in

terms of aquatic life right now.

MS. FRANZETTI: And can you -- I

understand you say the IBI is going to

improve. Can you give us anything more

specific about how the aquatic life will

change out there?

MR. SULSKI: Well, I've given two

examples.

MS. FRANZETTI: I'm sorry, is one

example more freedom of movement?

MR. SULSKI: Freedom of movement to

L.A. REPORTING (312) 419-9292

113

occupy a restricted -- some of these habitat

areas that we have?

MS. FRANZETTI: What was the second.

MR. SULSKI: Improvement in the

aquatic life condition as reflected in

aquatic life.

MS. FRANZETTI: That's the one I'm

asking you to -- you know, the mere statement

that the IBI is going to improve somewhat

doesn't mean anything more than that. What

will we see reflected out there in the

aquatic life?

MR. SMOGOR: If we're improving

conditions that we believe are limiting or

keeping water from attaining a biological

condition that would meet a proposed goal,

there are a number of ways waters can improve

or the biological community can change to go

from a lower biological condition to a higher

biological condition.

One of the most common is you

allow more different types of organisms, you

create a better situation for organisms that

are precluded or effectively precluded, they

L.A. REPORTING (312) 419-9292

114

occur at such lower numbers or they're barely

holding on. If you improve these conditions,

these organisms will move in and say, yeah,

that's good for me now and you're more likely

to encounter them. And so one real common

manifestation would be a greater number

of species showing up with persistence?

MS. FRANZETTI: And that's really what

we're getting at here is who do you expect to

show up? I mean, it's great to say, well,

you know, we think that more species are

going to show up if we require all these

dischargers to cool their effluent. But who

is going to show up? Where is there some

certainty to what is this degree of

improvement that's going to occur?

MR. SMOGOR: They're showing up. And

there's also if they're barely holding on or

barely subsisting, then species that are

barely subsisting will probably benefit as

well. And given that they're already there,

they'll show up probably in greater numbers.

And you're achieving the balance then.

Balance isn't just based on who is there and

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115

who isn't there. Balance is based on the

relative numbers of what is occurring there

as well.

So, for example, maybe -- and I

don't know all the details of what species

are living there in exactly what numbers

right now. But one thing that wouldn't be

surprising would be for some of the

organisms, some of the say fish that live

downstream, assuming that they're not being

blocked by some negative conditions below

I-55, would be more inclined to and be better

able to be supported above I-55 if these

changes occur.

MS. FRANZETTI: Because above I-55 has

got better habitat than below I-55?

MR. SMOGOR: No, not necessarily

better. But we expect that because we

believe temperature and things associated

with temperature are limiting the biological

potential, again, we've set the biological

potential based on what we believe the

habitat can support above I-55. Upper

Dresden Island Pool is what I'm referring to.

L.A. REPORTING (312) 419-9292

116

So it wouldn't be surprising to

find species that can occur down stream and

aren't really found at all or aren't really

found at high numbers in Upper Dresden Island

Pool, that if you address what you believe is

limiting there, you will find more of them

occurring up in that area after that is

addressed.

MS. FRANZETTI: And you would agree

with me, though, that if you are wrong about

what is limiting them, we won't see these

probable or likely improvements by requiring

effluent cooling, correct?

MR. SMOGOR: Yes. If we're wrong --

I'd also like to add that when we're setting

standards about what a water should be to

allow a particular situation, meeting just

one of those standards doesn't guarantee that

you're going to get the ultimate goal that

you're shooting for.

These are requirements kind of one

at a time requirements that in total must

exist in order to allow attainment of the

potential.

L.A. REPORTING (312) 419-9292

117

MS. FRANZETTI: I thought we've just

spent a fair amount of time today with the

Agency saying that in Upper Dresden Pool it's

temperature.

MR. SMOGOR: It's primarily

temperature. And you're right, if we're

wrong about what the primary one is, then I

agree with the way you stated it.

But I don't want to say

temperature has been identified as the sole,

only limitation. I can't say that based on

the information.

MR. SULSKI: We also discussed the

interaction between temperature and oxygen.

MS. FRANZETTI: I understand.

MR. SULSKI: So if you reduced the

temperature, it's possible DO will raise as

well just by reducing temperature.

MS. FRANZETTI: I understand. I

understand. That's possible, other things

are likely, but we don't really know.

MR. SULSKI: The other thing I wanted

to point out was that, you know, we have the

Upper Dresden Island Pool, we also have a

L.A. REPORTING (312) 419-9292

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Dresden Island Pool, we have downstream of

I-55 which goes all the way to the Dresden

Lock and Damn, correct?

MS. FRANZETTI: Correct.

MR. SULSKI: We also have the very

large Kankakee River coming into that system.

MS. FRANZETTI: Right. And below I-55

we've got cooler waters, don't we?

MR. SULSKI: I guess my point is that

there's a pool of species diversity out there

that could contribute to a re-population of

this area with an aquatic life that is

commensurate with what we expect should occur

here.

MS. FRANZETTI: I understand. But I

think it's important as well to acknowledge

that below I-55 is general use thermal

standards, right, that's what's applicable

there?

MR. SULSKI: Yes.

MS. FRANZETTI: Today?

MR. SULSKI: Yes.

MS. FRANZETTI: And has been for

years, correct?

L.A. REPORTING (312) 419-9292

119

MR. SULSKI: Yes.

MS. FRANZETTI: And those are cooler

temperatures, correct?

MR. SULSKI: Yes.

MS. FRANZETTI: So what are all the

species that exist below I-55 bridge that

don't exist in what here we're calling Upper

Dresden Island Pool above I-55?

Have we done that comparison to

see what are all the additional species that

are there in the cooler general use waters

but are not up in the Upper Dresden Island

Pool waters that I guess are among those you

may feel are likely to come upstream?

MR. SMOGOR: We haven't examined

specifics. And when I say coming from

downstream, I'm not only limiting that to the

Des Plaines River below I-55 as the only

source of coming from downstream.

So there is the possibility for

fish to move from the Kankakee River system

all the way up because there's a connectivity

with the Kankakee River system, as well.

MS. FRANZETTI: Mr. Smogor, what I'm

L.A. REPORTING (312) 419-9292

120

trying to I guess underscore is that if

temperature were such a major constraint,

then wouldn't I be seeing a distinct

difference below I-55 bridge versus above

I-55 bridge because, if anything, isn't there

in that area immediately downstream of I-55

bridge somewhat better habitat than exists in

Upper Dresden Island Pool?

MR. SMOGOR: I don't know. I don't

know how much better it is below I-55.

MS. FRANZETTI: Would you agree it's

no worse?

MR. SMOGOR: Yeah. I know that the

UAA, the Attachment A makes some of those

comparisons. I don't know offhand, so if we

wanted to check that, we can check some of

the information. Although, that is only

based on a limited set of habitat

information.

MS. FRANZETTI: I've been asked just

as a quick follow-up when Mr. Sulski referred

to after a CSO event cooling the waters by

four to five degrees, were you talking in

terms of Celsius or Fahrenheit?

L.A. REPORTING (312) 419-9292

121

MR. SULSKI: Either one. There's even

more substantial drops from that. So if

we're not at the Fahrenheit scale, let's

bounce it to centigrade.

MS. FRANZETTI: So it's four to five

centigrade?

MR. SULSKI: Yeah. I mean, there are

significant drops in this temperature that

result in thermal stress.

MR. ETTINGER: Can I just ask one

question as a follow-up. Have you ever

looked at the temperatures that exist below

the I-55 bridge and compared them with the

aversion temperatures that Chris Yoder

presented in his report?

MR. TWAIT: No, I don't believe we

have.

MR. ETTINGER: Thank you.

HEARING OFFICER TIPSORD: For

clarification, Chris Yoder's report?

MR. TWAIT: Exhibit 15?

HEARING OFFICER TIPSORD: Exhibit 15?

MR. ETTINGER: Yes.

HEARING OFFICER TIPSORD: Exhibit 15.

L.A. REPORTING (312) 419-9292

122

Thank you.

MS. FRANZETTI: Moving on to question

seven. At Page 18 of the Sulski pre-filed

testimony it is stated that, quote,

temperature constraints could be overcome

through additional effluent cooling at the

five Midwest Generation electrical generating

stations, end quote. Explain how much

additional cooling is needed. And I don't

know that -- I think this last part of the

question has probably been answered already

by our last dialogue here so can you give us

some explanation of what you're referring to

as the additional effluent cooling at the

five Midwest Generation plants?

MR. TWAIT: The amount of cooling

would just depend on the amount of cooling

that would be required to meet the water

quality standards outside of any mixing zone.

MS. FRANZETTI: Okay. So that's how

that phrase was used was just Midwest Gen is

going to have to add enough additional

cooling to get down to what the roughly

thermal water quality standards are, assuming

L.A. REPORTING (312) 419-9292

123

no mixing zone?

MR. TWAIT: I don't know that I would

say assuming no mixing zone.

MS. FRANZETTI: I was just trying to

keep it simple, but that's fine, I understand

a mixing zone may apply. But that's

basically what your -- your statement there,

you didn't have in mind specific technology,

a specific delta drop in the current effluent

discharge temperatures, you were just

referring to the fact that you got to add

enough to come into compliance with the

proposed thermal water quality standards?

MR. TWAIT: I believe that's all the

cooling that would be necessary.

HEARING OFFICER TIPSORD: Mr. Harley,

you have a question?

MR. HARLEY: Before we leave the topic

of temperature block and the way it can

affect water quality, one of the questions I

wanted to ask you is based on your response

that this would be most prominent in periods

of time of time July, August. Is there also

a temperature block phenomena that might

L.A. REPORTING (312) 419-9292

124

exist during colder weather periods? I'm

reflecting on Chris Yoder's testimony that

there could be thermal shock to fish that are

preferentially attracted to warmer waters

near thermal discharge points and that if

that thermal discharge is then stopped, the

fish can actually suffer as a result of that

dramatic change in temperature. Does the

concept of temperature block apply during

winter periods, as well?

MR. DIMOND: Object on the basis of

foundation. There's no showing that this

witness has done any study or has any factual

basis to testify about a temperature block or

that he has any factual basis to offer an

opinion about whether or not there's a

temperature block, whatever that means,

during a cold weather period.

We've got a real pattern

developing here where any time the Agency

doesn't want to offer an opinion, they say we

haven't collected the data, we can't answer.

Any time they want to offer an opinion, even

though they don't have data, they offer it up

L.A. REPORTING (312) 419-9292

125

and that's a real problem with the record.

MS. WILLIAMS: I don't think that's a

fair characterization. I think we're trying

to answer everyone's questions as best we

can.

HEARING OFFICER TIPSORD: Mr. Harley,

would you like to rephrase because we have

been talking about blockages?

MS. WILLIAMS: Is this question

primarily about the concept of thermal -- can

we take the term block out of it?

HEARING OFFICER TIPSORD: You know

what, let's do it this way, and the Board is

well aware that this is merely the opinion of

the witness, could you answer Mr. Harley's

question?

MR. SULSKI: Could you repeat the

question, please?

MR. HARLEY: Could you repeat that

question?

(Whereupon, the requested

portion of the record

was read accordingly.)

MR. SULSKI: The short answer is I

L.A. REPORTING (312) 419-9292

126

don't know whether that phenomena occurs

here. I don't have any observations of it.

MR. HARLEY: Thank you.

MS. FRANZETTI: One might think that

this is not a good breaking point, but I

think it might be in the sense that my next

question, question eight, is based on the

existence of certain impairments, non- to

partial attainment of the uses. And what I

would like to do before getting to that

question is have the Agency for all of us

take us through just a bit of the portion of

the filing last week where it -- this was in

response to a request from the first hearing

where they have information now on I believe

the specific assessment information for the

streams in question here as well as what are

the impairments that have been noted.

Am I right, the Agency witnesses,

that this portion of your filing last week,

Appendix B1, specific assessment information

for streams 2006, was intended to respond to

that request for information about most

recently identified impairments?

L.A. REPORTING (312) 419-9292

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HEARING OFFICER TIPSORD: The title

page on that is Information on Impaired

Segments of the Lower Des Plaines River and

the CAWS.

MS. FRANZETTI: Yes. That would be

helpful if I would have said that. Thank

you.

HEARING OFFICER TIPSORD: You know

what, for ease if we're going to be asking

some questions about this and talking about

this, why don't we go ahead and mark this as

Exhibit 34 as well.

MS. FRANZETTI: Right.

HEARING OFFICER TIPSORD: It's

Information on Impaired Segments of Lower

Des Plaines River and CAWS and there are

several pages attached. We'll mark that as

Exhibit 34.

(Document marked as

Exhibit No. 34 for

identification,

03/11/08.)

MS. FRANZETTI: And I am not implying

that we have to go through every line of this

L.A. REPORTING (312) 419-9292

128

chart because obviously the chart includes

waters that have nothing to do with this

waterway, doesn't it, in part?

MR. ESSIG: Yes.

MS. FRANZETTI: Because of just how

they're listed in your report, but I think

because of that, that's what I'm getting at.

If we could go through and identify for

people what names on the chart are associated

with water segments that are part of this UAA

rulemaking, that's what I would ask the

Agency to do.

MR. ESSIG: The list is in

alphabetical order, so I will go through the

names of the reaches that we're talking

about.

MS. FRANZETTI: Exactly. And then if

you could just be prepared to take an example

line across the chart to explain what the

codes mean, how does someone understand what

the findings are with respect to any

impairments or causes of impairments for a

particular waterway so we just all understand

how to use the information on those charts.

L.A. REPORTING (312) 419-9292

129

MR. ESSIG: Okay.

MS. FRANZETTI: Thanks.

HEARING OFFICER TIPSORD: Are you

going to need a few minutes to do that?

MR. ESSIG: This could take a while,

yes.

HEARING OFFICER TIPSORD: But I

mean --

MS. WILLIAMS: No. He's ready.

HEARING OFFICER TIPSORD: Okay. Well,

what I'm thinking is if we break now and try

to go to the cafeteria or any other

restaurants around, it might be insane. So

why don't we go ahead and do that and we'll

get through that with Mr. Essig and then take

a break about 12:15, 12:30 and get out that

flow.

MR. ESSIG: First, let me just explain

the --

HEARING OFFICER TIPSORD: Mr. Essig,

remember you need to keep your voice up.

MR. ESSIG: If you turn to the second

page, it's labeled Appendix B1, that will

give you the different, if you will, codes,

L.A. REPORTING (312) 419-9292

130

the different types of things that are

included in this tabulation.

MS. FRANZETTI: And Mr. Essig, can I

just help you along? In the upper left under

use ID, that tells you what is the use

classification for the given waterway?

MR. ESSIG: That's correct.

MS. FRANZETTI: And if you go over to

the right of that, the support code, can you

just explain what support codes mean?

MR. ESSIG: The support codes

basically mean -- F means that it's fully

meeting the designated use; N is not

supporting the designated use; I means

insufficient information; and X indicates

that it was not assessed.

MS. FRANZETTI: And then could you

briefly explain what the CAWS IDs are that

are listed in the remaining two boxes below

that on this Page 1, Appendix B1.

MR. ESSIG: The individual CAWS IDs

indicate either a chemical or physical types

of causes that can contribute to the degree

of nonsupport. They are based on, in many

L.A. REPORTING (312) 419-9292

131

cases, chemical parameters that do have water

quality standards either for general use or

for indigenous aquatic life.

It also includes other parameters

that do not have standards that we feel may

contribute to cause of nonsupport. As an

example, phosphorous -- I'll leave it at that

for the time being rather than get bogged

down on this.

If you want to go to the next

page, on the next page it has source ID and

these are codes that are used to identify

possible sources of these causes of

impairment.

And then when you get into the

actual table itself, you'll notice that on

the left-hand side of the table it's got the

name of the water body, the ten digit HUC

code, hydrologic unit code, H-U-C code, the

IEPA basin is just a code for the -- you have

a statewide map in this report that has the

entire state and it has the watersheds

delineated and those numbers refer to those

watersheds, the assessment unit ID is the

L.A. REPORTING (312) 419-9292

132

actual ID of that stream segment that was

assessed and the size in miles indicates the

size of that segment. The category I believe

is the 303D list category.

MR. ETTINGER: Is this from the 303D

list?

MR. ESSIG: This is from the 2006

integrated report in the appendix. This is

the actual assessments of all the water

bodies. The 303 list itself is actually in

another table within that report.

MR. ETTINGER: But this is part of the

integrated 305B, 303D report?

MR. ESSIG: Yes, it is. And then the

next column is the designated uses with the

attainments, so you have the codes attached

to that. And as I said before, an N in front

of the code means that it's not supporting, F

means it is supporting the use and X means

that it was not assessed.

So if we go down on Page 14 that

we're on, there's the Calumet River that is

indicated on here and the assessment ID is

ILHAA-01 and it indicates for that water body

L.A. REPORTING (312) 419-9292

133

that that is a general use waterway and it

was indicated as being nonsupport for aquatic

life. The code 583 indicates fish

consumption use. The N in front of that

means nonsupport to fish consumption.

Then 585 is the primary contact

use. That's also indicated as not supporting

its use.

Then the code for 586, secondary

contact, that was not assessed.

And the final code, 590, is

esthetic quality and that was not assessed.

And then if you go to the next

column, the causes of the nonsupport are

listed. So then you'd have to go to cause ID

table. So 375 cause is silver; 441 is pH;

462, phosphorous; 348 is PCBs; and 400 is

fecal coliform.

What this doesn't point out

necessarily is, you know, which causes are

contributing to which use impairment. But

the 400 fecal coliform obviously is for

primary contact. The other causes listed

would be for the aquatic life. The listing

L.A. REPORTING (312) 419-9292

134

of PCBs would be listed for fish consumption.

And then the following columns are the

potential sources and you have to go to the

source table for that.

MS. FRANZETTI: And those are sources

of the causes?

MR. ESSIG: Yes. We think these

sources might be contributing these causes to

the waterway.

MS. FRANZETTI: Right.

MR. ESSIG: There isn't a definitive

analysis of that. Twenty-three is combined

sewer overflows; 62 is industrial point

source discharge; 177 is urban runoff storm

sewers; and 140 is source unknown.

And, again, within this table, the

sources that are causes are not linked.

MS. FRANZETTI: Can you -- and I'm

open to suggestions if there's an easier way,

but would it take much time for you to go

through these pages and note for us which are

the names that are within the CAWS and the

Lower Des Plaines UAA areas?

MR. ESSIG: Yes, I can do that. You

L.A. REPORTING (312) 419-9292

135

want to go page by page?

MS. FRANZETTI: I think that's maybe

the only way that we can delineate which

portions of this are relevant to this

proceeding.

MR. ESSIG: Okay. On Page 14 we have

the Calumet River. Do you want me to give

you the assessment unit ID?

MS. FRANZETTI: No. I think we can

all just mark it if you give us the name.

MR. ESSIG: Okay. The Calumet Sag

Channel.

MS. FRANZETTI: Both entries, there's

two?

MR. ESSIG: Right. Then we'd have to

go to the next page, it would be Page 17,

Chicago Sanitary and Ship Canal, there are

three entries there for that. Then below

that is the Chicago River.

And then we have to go to the next

page. We get to the Des Plaines River, but

I'm going to have to tell you which segment

IDs are for that reach.

MS. FRANZETTI: Okay.

L.A. REPORTING (312) 419-9292

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MR. ESSIG: The listing for the

Des Plaines River on Page 23 are all general

use waters, they're not within the study

area. Page 24, segment -- this is still on

the Des Plaines River, assessment unit ID

ILG-23, that is within the Brandon Pool. And

ILG-12 is within the Upper Dresden Island

Pool. The remaining Des Plaines River sites

on that page were all general use.

MS. FRANZETTI: Okay.

MR. ESSIG: And not within the UAA

area.

MR. DIMOND: Could I ask a question

about that? Mr. Essig, when you say that the

ILG-12 is within the Upper Dresden Island

Pool, is that because the assessment is a

specific point or is it intended to cover the

entire reach?

MR. ESSIG: There are stations within

those reaches. The station itself might be a

specific point, but the assessment is

considered to take into account that whole

assessment unit.

MR. DIMOND: And where is ILG-12

L.A. REPORTING (312) 419-9292

137

within the Upper Dresden Island Pool?

MR. ESSIG: That is -- I believe that

one is basically just downstream of the

tailwater area. But other stations may have

been used within that segment for the

assessment.

But there's -- let me try to

explain it. In many cases the assessment

unit ID is based on an existing station code.

So there is an actual station code called

G-12. In this case, that segment unit was

named after that station, but we have other

stations within that segment with a different

station code.

MR. DIMOND: So the assessment that's

reflected in here, even though it's labeled

as ILG-12, may incorporate data from other

stations within the Upper Dresden Island

Pool?

MR. ESSIG: Right. Then I think we're

on to Page 36, Grand Calumet River. That

would be it for that page. Page 51, Little

Calumet River North, there's two entries for

that. There are two entries here for the

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Little Calumet River South, but they are not

within the CAWS.

And then we go on to the next

page, Page 64, North Branch Chicago River,

the first entry is part of CAWS, assessment

unit ID ILHCC-02.

Then you skip one and you go to

the next, North Branch Chicago River, which

will be ILHCC-08.

Go on to the next page, 65, North

Shore Channel. Page 77, South Branch Chicago

River. And then the last page, south fork of

the South Branch Chicago River. And I

believe that should be all of them.

MS. FRANZETTI: Thank you, Mr. Essig.

That's very helpful.

MR. ESSIG: I might want to add one

thing. I just noticed something here and I'm

not too sure why this is the case. On Page

65, the North Shore Channel is on there, but

it's only giving one segment, ILHCCA-04, and

then there is another segment, ILHCCA-02, and

I'm not too sure why that's not showing up on

this table. I'll have to check on that.

L.A. REPORTING (312) 419-9292

139

MS. FRANZETTI: The record can always

be supplemented if there needs to be an

additional page to cover that.

DR. GIRARD: Can I ask a question?

Mr. Essig, I have a quick question. Is this

database from the IEPA's website?

MR. ESSIG: It's from the report that

is available on the website. Unfortunately,

the website does not contain the appendix

which is what this is.

DR. GIRARD: Basically my question is

can you give us the address to be able to

look at it?

MR. SMOGOR: The website at one point

has carried those appendices as part of the

report. They were there. It came to my

attention maybe about a couple weeks ago that

the appendices -- I think they're redoing

website stuff is about the best I can put it

and I think somehow the appendices were lost.

Typically, they're there and they

should be there so we're going to have to --

we're looking into getting those appendices

posted back to that website where they should

L.A. REPORTING (312) 419-9292

140

be.

DR. GIRARD: Thank you. Let us know

when do you and how we can find it.

MR. SMOGOR: Okay.

MS. FRANZETTI: Okay. I'm going to

modify question eight in the hope of

eliminating what may be factual disagreement

between us and just ask the question. Does

the Agency have a watershed management plan

in place for the -- let's take it first for

the Lower Des Plaines River to address any of

the non- or partial impairments?

MR. ESSIG: I'm not aware of specific

watershed plans for these waters at this

time.

MS. FRANZETTI: So the answer would be

the same if I enlarge the question to include

any of these UAA waters?

MR. ESSIG: Yes.

MS. FRANZETTI: Okay. Moving on to

Roman eight, Aquatic --

HEARING OFFICER TIPSORD: If you're

done with question eight let's go ahead

and -- it's about 20 after, that should give

L.A. REPORTING (312) 419-9292

141

us enough time. Let's try and get back by

about 20 after 1:00.

(Whereupon, after a short

break was had, the

following proceedings

were held accordingly.)

HEARING OFFICER TIPSORD: Thank you

all for your promptness and your return. I

appreciate it. I realize that although we

need no introduction for most of the panel,

I'm sure, I forgot to introduce who is up

here today from the Board.

So before we start, to my

immediate right is Dr. Tanner Girard, the

presiding Board member. To my immediate left

is Andrea Moore, one of our Board members and

to her left is Thomas Johnson, also a Board

member. To Dr. Girard's immediate right is

Anand Rao from our technical unit and to his

immediate right is usually Alisa Liu.

MR. RAO: She stepped out.

HEARING OFFICER TIPSORD: She stepped

out. And at the end of the table today I

told you yesterday that our extern, Walter

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142

Tirsch, would be joining us and this is

Walter. And I think Christine is going to

try and come back this afternoon, too, so

you'll see her again this afternoon. And

with that, Ms. Franzetti, I think we're back

with you.

MS. FRANZETTI: Okay. And just so the

next questioner after me knows where I'm

stopping because I do think at least one

other questioner has more, quote, unquote,

general questions is what we're calling them,

which I think at this point is anything other

that getting into the proposed standards

themselves, I will stop after my section on

contaminated sediments, Roman nine, and allow

whoever is left that has general questions to

ask them, if that's consistent with your

understanding.

HEARING OFFICER TIPSORD: That's fine.

MS. FRANZETTI: Okay. I think we

stopped with Roman eight, Aquatic Invasive

Species Barrier. In the Statement of Reasons

at Page 50, the Illinois EPA describes the,

quote, aquatic invasive species dispersal

L.A. REPORTING (312) 419-9292

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barrier, end quote, installed in the CSSC at

Romeoville as follows: Quote, the barrier

involves applying an electrical charge

directly to the water at a rate intended to

prevent any fish from passing alive, end

quote. While the statement notes the intent

to prevent fishing from pass alive, does the

Illinois EPA know from those responsible for

the installation and operation of the barrier

whether the barrier does effectively prevent

all fish from passing alive?

MR. SULSKI: I don't know whether it

prevents all fish from passing alive.

MS. FRANZETTI: Okay. Question two is

already asked. Moving on to Question 1 and I

will note the pre-filed question cites the

chromium, but that should be cadmium so I'll

read it in that corrected way.

On Page 67 of the Statement of

Reasons the Illinois EPA notes that it

appears barge traffic which suspends the

sediments in the waterways contributes to

causing exceedances of the cadmium chronic

water quality standard. Did the Agency

L.A. REPORTING (312) 419-9292

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review the effect of sediment resuspension on

aquatic life in the waterway?

MR. SULSKI: Just in a cursory

discussion amongst the stakeholders, that's

it.

MS. FRANZETTI: And that would

probably then be reflected in the minutes

that have been presented already in the

record?

MR. SULSKI: It may be, yes.

MS. FRANZETTI: Okay. Moving on to

question two. With respect to the proposed

maintenance of the Section 302.403 narrative

standard for unnatural sludges, even though

the existing conditions in the waterway

violate the standard due to the presence of

contaminated sediments, on Page 55 of the

Statement of Reasons the Agency states it

intends to apply the standard to, quote,

prevent additional accumulations of sediment.

Would you please first define unnatural

sludge or bottom deposits and clarify the

sources of such materials?

MR. SULSKI: Part of it is defined in

L.A. REPORTING (312) 419-9292

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the 302.403 right after unnatural sludge or

bottom deposits, and that would be floating

debris, visible oil; that encompasses that.

In addition, solids associated

with discharges from municipal wastewater

treatment plants, combined sewer overflows,

floatable materials that are associated

mainly with those sources, sanitary debris.

MS. FRANZETTI: Can you explain in

greater detail how this application -- and by

that I'm referring to that quoted language to

prevent additional accumulations of sediment

will be applied?

MR. SULSKI: Well, from a field

investigatory compliance framework, if a

source was found to be discharging floatables

and settleables and it resulted in the

accumulation of same within the waterway,

that would be what's called a violation of

this rule.

MS. FRANZETTI: So would that make CSO

discharges a violation of that rule?

MR. SULSKI: It would.

MR. TWAIT: It would -- we would apply

L.A. REPORTING (312) 419-9292

146

it the same as we do general use where if we

see a problem that can be remedied or if we

see a problem, we will investigate further

and use that for a violation notice.

MS. FRANZETTI: So would an entity

like the city of Chicago, if it continues to

have CSO discharges which may have floatables

and other type materials in them as you've

described, fall within the meaning of

unnatural sludge or bottom deposits? Would

they risk violating this standard if its

applied to the UAA waters?

MR. TWAIT: I think they would,

especially if they were not doing the nine

minimum controls to keep that at a minimum.

MS. FRANZETTI: Would compliance with

the nine minimum controls be a defense then

to an alleged violation of this section?

MR. TAIT: I'm not in the compliance

section so I'm not qualified to say.

MR. SULSKI: It could be. It's a

fairly complicated and time-extended

situation in the Chicago metropolitan area

due to TARP and time it's going to take to

L.A. REPORTING (312) 419-9292

147

complete TARP, which is the long term control

plan for the whole Chicago metropolitan area.

MS. FRANZETTI: Let me pick up the

second part of 2B there. Do you think the

language of 302.403 clearly expresses your

stated limitation to the scope of its

applicability, namely only to prevent

additional accumulations of sediment?

MS. WILLIAMS: No.

MS. FRANZETTI: Is the Agency going to

consider proposing a revision to that section

to --

MS. WILLIAMS: We would consider

proposals that are thrown out by others, but

we couldn't come up with one that we felt was

consistent with federal law.

MS. FRANZETTI: Moving on to question

3. On Page 55 of the Statement of Reasons

the Illinois EPA states the, quote, historic

sediment pollution presents an attainability

concern for some types of aquatic life in

these waters. First, what's meant by the

term attainability concern?

MS. WILLIAMS: I think we may have

L.A. REPORTING (312) 419-9292

148

tried to talk about this yesterday, but I

think that is misleading the way it's written

there that this was focused purely on

pointing out that we recognized there's

historic sediment pollution there and that

there's a compliance concern with the

standard as it's written.

I don't think attainability

concern for aquatic life is a -- I think it's

a poor choice of words because that's not

really what we were looking at.

MS. FRANZETTI: Okay. So the Agency

does not believe that historic sediment

pollution presents any problem for certain

types of aquatic life in these waters?

MS. WILLIAMS: That was not what was

meant by this statement. I guess they can

answer the technical piece of that question.

MR. SULSKI: Back to some of the early

testimony that we don't have enough

information to make a judgment from a

toxicity standpoint, however, we did indicate

that from a habitat structural standpoint

that we recognize it results in a poorer

L.A. REPORTING (312) 419-9292

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quality habitat.

MS. FRANZETTI: So to the extent -- if

I understand correctly then, so to the extent

that poorer habitat is considered as part of

the attainability analysis, it is relevant to

that review?

MR. SULSKI: It's relevant to

evaluating habitat.

MS. FRANZETTI: I'm going to skip over

four. I think just based on your prior

testimony I don't need to ask that question.

I'm done.

HEARING OFFICER TIPSORD: Okay. Then

that takes us -- we're stopping short of

actually discussing the standards in this

area of questions. Ms. Franzetti, you're

stopping --

MS. FRANZETTI: I'm stopping with my

questions that now get into the specific

chemicals, including temperature in that

category for purposes of that shorthand

reference, my questions on the specific

standards proposed for these uses.

HEARING OFFICER TIPSORD: With that in

L.A. REPORTING (312) 419-9292

150

mind, does Flint Hills have any additional

questions short of that mark?

MR. SAFLEY: Well, I don't know. I

apologize, I didn't know that we were

stopping short of that mark, so apparently I

missed that.

HEARING OFFICER TIPSORD: You know

what, I think Citgo does, which would be

next, if you don't mind, and then we can come

back.

MR. SAFLEY: Of course. That's fine.

HEARING OFFICER TIPSORD: I believe

that's who's next on the list. Let me double

check.

(Brief pause.)

HEARING OFFICER TIPSORD: Yes.

Mr. Fort, will you please tell us where

you're starting with pre-filed questions?

MR. FORT: Thank you. Jeffrey Fort on

behalf of Citgo. I have a few questions that

were left out of my Roman two of the

pre-filed questions. Many of those -- some

of those I was able to ask back in Chicago.

Some I think have been answered by others.

L.A. REPORTING (312) 419-9292

151

And if you think that they have been asked

and answered, I know you will say so.

I also have a couple follow-up

questions to some of the documents that the

Agency filed last week at least as they apply

to Citgo. And, again, because Citgo is a

discharger to the Chicago Sanitary and Ship

Canal, I'm really focusing my questions only

on those so-called Use B waters today.

Most of my questions start off

with the premise stated on the bottom of Page

3 of the prepared pre-filed questions about a

summary of the Agency findings and the

proposal to the Board.

Madam Hearing Officer, from an

interest of the record, would you like me to

read that or should I just go ahead?

HEARING OFFICER TIPSORD: Why don't

you read it for the record?

MR. FORT: Thank you. In our review

of the Agency filings, the Agency appears to

find and recommend to the Board that the

Chicago Sanitary and Ship Canal from its

confluence of the Cal Sag Channel to its

L.A. REPORTING (312) 419-9292

152

confluence of the Des Plaines River and the

Lower Des Plaines River from its confluence

with the Chicago Sanitary and Ship Canal to

the Brandon Road Lock and Damn should be

categorized, quote, non-recreational use,

end quote, water, which precludes primary

contact, incidental contact and non-contact

recreation due to physical or low-flow

conditions or other restrictions, Statement

of Reasons Page 42.

The Agency also recommends

grouping the ship canal and the Lower Des

Plaines River from its confluence with the

canal to the Brandon Road Lock and Damn as

being part of the category called Chicago

Area Waterway System and Brandon Pool Aquatic

Life Use B Waters on Pages 46 to 47.

With those findings and

recommendations, what is the justification

for the following -- in light of the

following questions.

First, the basis for taking

directly from the parallel provisions in

Section 302.208 which deals with general use

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153

waters, requirements to adopt acute

standards, chronic standards and human health

standards and including them in a new

302.407?

MS. WILLIAMS: I have that as asked

and answered in Chicago, but we can do it

again if you want.

MR. FORT: If you want to do it.

MS. WILLIAMS: I think it's very

short.

MR. TWAIT: If your question is asking

why we didn't reference 302.208, standards in

our proposal, it was based on a management

decision to have stand-alone regulations.

MR. FORT: My question is a little bit

different. My question is why are you now

including those three criteria as part of the

Aquatic Life Use B Water Quality

Requirements?

MR. TWAIT: It's all based on

protecting aquatic life.

MR. FORT: Notwithstanding the

findings that you made here about the limited

habitat and the life with respect to this

L.A. REPORTING (312) 419-9292

154

part of the Chicago Sanitary and Ship Canal?

MR. TWAIT: Yes.

MR. FORT: Maybe then I should ask

questions on the document that you submitted.

And Madam Hearing Officer, I certainly didn't

bring enough copies for everybody in the

room.

HEARING OFFICER TIPSORD: If it's from

the March 4th filing, if you could show me

which one it is, we have some of those with

us.

MR. FORT: It is one of the first

ones.

HEARING OFFICER TIPSORD: These have

already been put in as an exhibit. Hang on,

let me tell you which exhibit. I think

Exhibit 29, yes, the UAA Factor Application

to CAWS and Lower Des Plaines River is

Exhibit 29.

MR. FORT: Do you have a copy there

handy?

MR. SMOGOR: Yes.

MR. FORT: And this is a two-page

document -- or a one-page front and back and

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then a second page.

HEARING OFFICER TIPSORD: Yeah.

MR. FORT: I'm not sure when the

Agency is answering this, but as I read

through the first page here there are nine

segments, one of which is called the Lower

CSSC or the Lower Chicago Sanitary and Ship

Canal; is that correct?

MR. SULSKI: Correct.

MR. FORT: Okay. And it is the only

category on this first page that is

non-recreational?

MR. SULSKI: Correct. Yes.

MR. FORT: And these are generally

segments that are upgradient of the Chicago

Sanitary and Ship Canal, mostly in the

Chicago River?

MR. SULSKI: The ones above that?

MR. FORT: On this first page, yes.

MR. SULSKI: Yes.

MR. FORT: And on the next page this

is more water body segments that are --

including the Sanitary Ship Canal that are

also upgradient of the Chicago Sanitary and

L.A. REPORTING (312) 419-9292

156

Ship Canal down to the Brandon Lock and Damn

except that these are on the Calumet system,

correct?

MR. SULSKI: Correct.

MR. FORT: Okay. And, again, the

Chicago Sanitary and Ship Canal segment here

is the only one that is non-recreational?

MR. SULSKI: It's not a -- On Page 2,

on the second page?

MR. FORT: Yes.

MR. SULSKI: I don't see a Chicago

Sanitary and Ship Canal.

MR. FORT: Looking at the bottom set

of brackets.

MR. SULSKI: Yes. I'm sorry, I

apologize.

MR. FORT: Did I correctly say that

this is the -- on the second page, that these

are all Calumet River system segments going

to its confluence of the ship canal?

MR. SULSKI: I need to clarify. This

is where you point out CSSC on the bottom

row?

MR. FORT: Yes.

L.A. REPORTING (312) 419-9292

157

MR. SULSKI: That just designates

where this LDPR, Lower Des Plaines-Brandon

starts and then Brandon Lock and Damn is

where it ends. So it's not a Sanitary Ship

Canal reach, this is the Lower Des Plaines

River-Brandon Pool.

MR. FORT: Thank you for clarifying

that. So going back to the first sheet of

the page, the Lower Chicago Sanitary and Ship

Canal goes down to the Lower Des Plaines Lock

and Damn and then on the next page it

continues on down to the Brandon Lock and

Damn or are these overlapping or is this just

a nomenclature difference between the two

bottom segments on the chart?

MR. SULSKI: Let's go to the first

page, the lower CSSC begins -- if you look at

the column heading, it begins at the Cal Sag

Channel, CSC, and it ends at the lower

Des Plaines River-Brandon.

And then if we go down to the

Lower Des Plaines River-Brandon, that reach

begins at the Chicago Sanitary and Ship Canal

and ends at the Brandon Lock and Damn.

L.A. REPORTING (312) 419-9292

158

MR. FORT: Okay. But you've put other

stream segments in the Aquatic Use B

category, not just these two segments of the

ship canal and the Lower Des Plaines,

correct?

MR. SULSKI: That's correct.

MR. FORT: And why do you put those

two segments, which have non-recreational

attainable use categories in with all the

other Use B categories?

MR. TWAIT: They are separate. We

have two use -- well, we have more than two

uses, we have six uses for the

non-recreational. That is a recreation use.

And Aquatic Life Use B is an aquatic life

designated use.

MR. FORT: Are there any differences,

though, in the water quality standards that

you're proposing even though you have

different uses?

MR. TWAIT: Yes. For the recreation,

those -- we're not proposing any water

quality standards at this time, however, in

the future we will be proposing bacteria

L.A. REPORTING (312) 419-9292

159

standards and for the Aquatic Life Use

Standards A, B and the Lower Des Plaines will

have the chemical water quality standards.

MR. FORT: But those chemical water

quality standards are identical regardless of

what the aquatic use is, correct?

MR. TWAIT: No.

MR. FORT: No?

MR. TWAIT: No.

MR. FORT: How are they different?

MR. TWAIT: Aquatic Life Use A -- the

Aquatic Life Use B Waters and Brandon Pool do

not support early life stages, so dissolved

oxygen is different, ammonia is different and

temperature is different.

MR. FORT: Okay. So for those three

chemicals -- or those three parameters, those

three parameters are different, but for

everything else all the chemical parameters

are identical?

MR. TWAIT: I believe that would be

accurate.

MR. FORT: Going back to the pre-filed

question number three on Page 4, dealing with

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the uses you say that the language for acute

standards, chronic standards and human health

standards is not intended to be a change from

how they're applied for general use waters.

So on Page 63 of the Statement of Reasons.

My question is assuming that I've reasonably

characterized what you said in the Statement

of Reasons, why is that so, what's the basis?

MS. WILLIAMS: So you're asking

specifically about the section in the

proposal 302.407 A, B, C and D?

MR. FORT: Well, I'm probably asking

more for the background as opposed to the

words, but it relates to that, yes.

MS. WILLIAMS: The background?

MR. FORT: The basis.

MS. WILLIAMS: Right. In that

section, that's the language we're talking

about, correct?

MR. FORT: Yes.

MR. TWAIT: The Agency made some

changes in 302.208D1. We took that language

from general use, but we made some changes to

the language to make it clearer and more

L.A. REPORTING (312) 419-9292

161

accurate.

The new language is in 302.07D1.

The Agency made the statement the Agency

believes this revised language is clearer and

more accurate than the existing language, but

the proposed language is not intended to make

a substantive change in the way the

regulatory language is interpreted and

applied.

MR. FORT: So you were simply trying

to take what was already in the regs for

general use waters, clean it up or clarify

and apply that to Use B waters among other

waters here, correct?

MR. TWAIT: Yes.

MR. FORT: And why were you doing

that?

MS. WILLIAMS: Why were they cleaning

it up or why were we putting it in?

MR. FORT: Whichever one he wants to

answer. But I think it's more the second.

MR. TWAIT: The reason we put it in is

because for secondary contact standards, most

of those were one number standards and they

L.A. REPORTING (312) 419-9292

162

are applied differently than the --

differently than what the Agency applies

acute and chronic standards for and also

different than what we have human health

standards for.

MR. FORT: So there was intended to be

a substantive change in the secondary contact

water quality standards?

MR. TWAIT: Yes. But there was not --

we've changed the language a little bit from

what general use says and we don't want

people to -- we want to make it clear that

we're not planning to change how we apply

acute chronic and human health standards.

MR. FORT: But those would be new

requirements for secondary contact

dischargers?

MR. TWAIT: Yes.

MR. FORT: And that would be

implemented in the permitting process?

MR. TAIT: Yes.

MR. FORT: And do you have any sense

of how much that kind of an activity might

cost?

L.A. REPORTING (312) 419-9292

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MS. WILLIAMS: Can you specify a

parameter, like there's no -- this language

doesn't address any particular chemicals so I

would think your question would have to

address a particular chemical in order to be

able to be answered.

MR. FORT: Well, that's probably a

good follow-up question when we get to

individual parameters, but right now I'm

asking if the Agency has any idea what the

cost involved both in terms of Agency time

and in terms of discharger time and other

folks, what the cost is of going through that

kind of an exercise in a permit.

MR. TWAIT: The permit engineer has to

go through and analyze whether or not to put

a standard in based on the current secondary

contact standard. I don't know that it would

take much more effort for them to look at

these new standards. So in respect to Agency

time, I don't think it's all that more

costly.

MR. FORT: What about the discharger?

MR. TWAIT: I don't know that they

L.A. REPORTING (312) 419-9292

164

spend a lot of time trying to figure out what

their permit limits are other than

spending -- well --

MR. FORT: What's the basis for that?

MR. TWAIT: Most dischargers. I don't

know how much extra it would cost a

discharger, no.

MR. FORT: So that's your answer, you

don't know how much time it would take?

MR. TWAIT: Yes.

MR. FORT: And you really are going to

withdraw that prior offhand comment?

MR. TWAIT: Yes, I will withdraw that.

MR. FORT: Thank you. I'm not sure

I'm supposed to be rehabilitating you, but I

think I understood.

MS. WILLIAMS: I'm trying to help

clarify your question, so it's okay. It's

only fair.

MR. FORT: You're welcome.

Well, continuing on these

questions on the uses and the grouping of

uses, I was confused as to why the Agency

chose to group all these different

L.A. REPORTING (312) 419-9292

165

categories. I think you've shown them on the

Exhibit 29, but in the definition it's

303.235, why the Agency considered all of

these different reaches of the Chicago

Waterway System to be grouped as Use B

because looking at Exhibit 29 I can't figure

out why some went into use -- based upon the

UAA factors and the recreational category,

why some were in Use A and some were in

Use B.

MS. WILLIAMS: I think we've talked

about this quite a bit, but if you want to

give Mr. Fort some leeway to go into that

again, I'm fine with that.

MR. ETTINGER: I believe we've

testified a lot about the structural factors

on the habitat. Is that what he's asking

about?

MR. FORT: No. This is more into the

regulatory definition which is something I

could not get into in Chicago the first time

through.

HEARING OFFICER TIPSORD: The

definition at 302 --

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MR. FORT: 235. Look at Exhibit 29.

MR. SULSKI: Well, I don't know if

looking at this sheet is going to answer your

question. I'll give you a short answer and

if you need more elaboration, let me know.

We made a cut between Use A and B

waters based on expected aquatic life

potential with respect to habitat and then

expected recreational use with what

recreation -- based on what recreational use

exists now and in the foreseeable future.

That's the simple answer.

MR. FORT: Okay. Well, then I'll just

ask the question again. Why did the lower

ship canal, you know, the segment that's the

last item on the first page and the ship

canal down to Brandon Lock and Damn, last

column on the second page, get put in Use B

along with the other things that are in

Use B?

MS. WILLIAMS: Do you want to put them

in Use A, is that what your question is?

MR. FORT: Well, actually, I suggested

Use C or maybe call it secondary contact, but

L.A. REPORTING (312) 419-9292

167

I was just asking for why they all went in

Use B.

MR. TWAIT: Use B was basically for

those places that have limited habitat.

Use A have more habitat than the Use B.

MR. FORT: And so it didn't matter

what the recreational category was then?

MR. TWAIT: No, it did not matter at

all.

MR. FORT: For purposes of defining

uses?

MR. TWAIT: Correct.

MS. WILLIAMS: For aquatic life uses.

MR. SMOGOR: Another way to put it is

Aquatic Life Use Designations were made

largely independently of the -- proposed

Aquatic Life Use Designations were made

largely independently of the proposed

recreational use designations. Does that

help?

MR. FORT: Well, at least I understand

that statement. I may not agree with it, but

I understand it. Thank you. Okay.

Well, then while we're on the

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subject of the definitions here, I could not

understand the meaning in 303.204, which has

a general statement about the Chicago Area

Waterway System and Lower Des Plaines River

of what those are. Non-specific water use

designations is part of Subpart B, do you

have that?

MS. WILLIAMS: Madam Hearing Officer,

at this time I would ask that we shouldn't

have to re-answer questions that were already

asked and answered by Ms. Franzetti or one of

the other parties.

HEARING OFFICER TIPSORD: He hasn't

yet asked the question, but I would agree

with you. Ms. Franzetti discussed this

section at length, so let's hear what the

question is and then --

MS. WILLIAMS: Sorry.

MR. FORT: So you have it?

MS. WILLIAMS: Oh, yes.

MR. FORT: My question is what is the

meaning of the final -- or not the final

phrase, by it's the phrase "limited only by

the physical condition of these waters and

L.A. REPORTING (312) 419-9292

169

hydrologic modifications to these waters,"

what does that phrase means?

HEARING OFFICER TIPSORD: We didn't

discuss that phrase specifically.

MR. SULSKI: Yes, we did. We didn't

did you say?

HEARING OFFICER TIPSORD: I don't

think we did.

MR. SMOGOR: That's intended to mean

pretty much that's the irreversible

conditions. We recognize that there's a

certain amount of human impact going on in

these waters. We recognize that some part of

that human impact can be considered

reversible conditions, some part of that

human impact can be considered irreversible

conditions and we're setting the goal by

recognizing that level or that amount or that

proportion of the human impact that

represents irreversible conditions.

MR. FORT: Well, my question is you

have been spending a lot of time obviously

with the uses and what the actual habitat is

and all those factors, spent a lot of time on

L.A. REPORTING (312) 419-9292

170

that, but how is somebody who hasn't been

steeped in these hearing proceedings going to

know what that phrase means?

MS. WILLIAMS: They're going to read

the Board opinion when the rule is done.

MR. SMOGOR: I don't know how someone

else is going to understand that or not.

MR. FORT: So if I understand, the

Agency's view is that the Board is going to

explain what that means?

MS. WILLIAMS: I'm sorry. I shouldn't

have said that. Go ahead if you can explain

any better.

MR. SMOGOR: Well, I don't know how

someone else is -- whether someone is going

to understand it or not understand it. The

intent in the context -- and we created these

uses in the context of each other in terms of

the aquatic life use and I believe also in

terms of the recreational uses, so there is a

greater context outside of the 303.204.

If that context is not understood

or not addressed then, yes, this loses some

of its meaning because we did address these

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171

things relative to other uses. But given the

context of all the standards and the context

of these proceedings as a whole, we believe

that in a limited situation you're

constrained to some narrative language to try

to best define the use, so we believe that

that captures that intent.

MR. FORT: Well, I guess maybe I'm in

no different position than you are. I'm not

sure what it means when you say the highest

quality aquatic life and wildlife is

attainable limited only by the condition.

I'm not sure what that means. That could

apply to any body of water, I think.

MR. SMOGOR: It's intended to mean in

the greater context that we're -- it's

representing a situation where we're setting

an aquatic life goal that is less than the

Clean Water Act goal because we're

recognizing that there's a certain amount of

irreversible human impact and that was its

intent as far as I can tell.

MR. FORT: I guess I'm not correlating

with -- the words just don't seem to measure

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up to what you've put forward here in terms

of the rulemaking. I guess I'll just leave

that as a comment then and we've got other

hearings to deal with, so thank you.

MS. WILLIAMS: And just to clarify, I

think we tried to say when other drafting

type issues like that have come up. We're

not (inaudible) to any specific phrasing

here. If people would like to propose

suggestions that they think are clearer, that

would be fine.

MR. FORT: Thank you.

HEARING OFFICER TIPSORD: And I just

would like to interject that if the Agency

along the way comes up with some better

suggestions, too, we would appreciate those.

Thank you.

MR. FORT: Well, I guess then here's

the other piece of this when you keep on

going when you get to the discussion we just

had about the acute standards and the human

health standards and those things that

Mr. Twait was talking about and now the

Agency is proposing to use general use

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173

standards, how do you know what those

physical conditions really mean?

MR. TWAIT: Well, the Agency isn't

proposing to use general use standards

per se. There's a management decision to use

the most current standard available. And in

some instances, that was US EPA's national

criteria and in other places the Agency's

general use standard was the most current.

MR. FORT: And in some cases the

US EPA current criteria is even more

stringent than the general use standard,

correct?

MR. TWAIT: Yes.

MR. FORT: And that is part of this --

I forget what the parameter, but that is in

here?

MR. TWAIT: Yes.

MR. FORT: Thank you.

MR. TWAIT: It can go the other way,

also.

MR. ETTINGER: Which one are you

using, a US EPA criteria that's more

stringent than your current general use

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standard?

MR. TWAIT: Just a second. Copper

would be one, temperature, and I guess that

would -- I think that's the only one.

MR. ETTINGER: I just thought it would

be helpful to put that in. Do you talk about

the chloride standards?

MR. TWAIT: Dissolved oxygen would

be --

MS. WILLIAMS: Can we repeat the

question?

MR. ETTINGER: Mr. Fort asked about

the circumstances in which US EPA criteria

were used instead of the existing Board

general use criteria. Now it's not always

clear as to, for example, temperature and DO

exactly what the US EPA criteria means in

this circumstance. But I gather for copper a

different number is being proposed than is

the current general use standard for copper,

but that is in line with the US EPA criteria.

I just thought in terms of getting all the

information on the table that Mr. Fort is

alluding to, that we find out if there was

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175

anything -- I'm hearing copper.

MR. TWAIT: I think there's some

others. Let me make a comparison. Arsenic

is more stringent. Chromium trivalent is

based on the national criteria. Mercury is

based on the national criteria, that's

mercury for aquatic life protection. Silver,

we used the national criteria. And I think

that's it.

MR. FORT: Do you have any more,

Mr. Ettinger?

MR. ETTINGER: I think that's the

pattern we're following here. You haven't

been here, but we're trying to follow a

complete record and fill in questions.

MR. FORT: That's fine.

HEARING OFFICER TIPSORD: Go ahead.

MR. FORT: One other question to the

Agency, probably to the panel but maybe one

of you wants to take it. How does the

existing water quality standards that are on

the books now, how are they not protective of

the existing uses of the Chicago Sanitary and

Ship Canal?

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MS. WILLIAMS: Is this a follow-up or

are we in the pre-filed somewhere?

MR. FORT: This is a follow-up.

MR. TAIT: Are you asking how the

existing secondary contact standards are not

protective of aquatic life?

MR. FORT: You can answer that

question, too. That would be good. Yes.

MR. TWAIT: The secondary contact

water quality standards were not based on

protection of aquatic life, they were based

on effluent standards. So back in 1972 they

were not trying to protect aquatic life

beyond having effluent standards.

MR. FORT: Well, I understand there's

been quite a discussion that I missed on

thermal, so except for thermal is there any

evidence that the Agency has that the

existing secondary contact water quality

standards are not protective of aquatic life,

the aquatic life that is available for the

stream segment being the Chicago Sanitary and

Ship Canal.

MR. TWAIT: Yes.

L.A. REPORTING (312) 419-9292

177

MR. FORT: And what is that?

MR. TWAIT: Arsenic had a

concentration at one milligram per liter,

which is a secondary contact water quality

standard. It's not protective of aquatic

life.

MR. FORT: And what's the basis for

that conclusion?

MR. TWAIT: The amount of research

data, the national criteria document and our

general use water quality standard.

MR. FORT: So you're comparing it to

the national criteria document or other

general use standards, is that what I heard?

MR. TWAIT: Yes. Arsenic for an acute

standard that we've proposed would be

0.34 milligrams per liter for an acute

standard and for a chronic standard it would

be 0.15.

MR. FORT: That's part of the

proposal, correct?

MR. TWAIT: Yes. And that is based on

the national criteria. And basically it's --

I just chose basically the first constituent

L.A. REPORTING (312) 419-9292

178

in the list. I could go down the list and

point out others.

MR. FORT: But those are based upon

national criteria for all water bodies,

they're not based upon the exact habitat, for

example, that you have in the ship canal,

correct.

MR. TWAIT: The national criteria are

based upon lab results showing toxicity to

whatever they're doing in the lab. The

habitat in the lab doesn't matter.

MR. FORT: So based upon the lab

studies, not based upon the actual

conditions, and I'm really just focusing upon

the Sanitary and Ship Canal, correct?

MR. TWAIT: Yes. If it kills it --

the only studies that they do or the primary

studies that they do are toxicity, what kills

the organism in the lab. And other than

whether the organism is there or not, habitat

doesn't matter.

MR. ETTINGER: As to some of the US

EPA criteria in the past, it makes a

difference as to whether you're dealing with

L.A. REPORTING (312) 419-9292

179

a salmonid or non-salmonid species and

sometimes in the case of DO and ammonia and

perhaps some other chemicals the criteria are

tighter when we're trying to protect some

species.

As to copper and these others that

we're talking about, was there a difference

in the criteria in the US EPA criteria

documents as to those sorts of species

differences?

MR. TWAIT: Yes. In some of the

national criteria documents they had

salmonids and other organisms that are not

found in Illinois and we removed them in the

database prior to our calculations of water

quality standards.

MR. ETTINGER: So the water quality

standards that you're proposing for the B

Waters have been adjusted to make sure that

you're applying the federal criteria as it

applies to those waters?

MR. TWAIT: We have made that attempt,

yes.

MR. ETTINGER: Thank you.

L.A. REPORTING (312) 419-9292

180

MR. FORT: You've made that attempt,

but you're not testifying that the actual

species that may exist in places like the

Chicago Sanitary and Ship Canal have been

reflected in all the parameters that you've

proposed, correct?

MR. TWAIT: That would be correct.

There was a management decision that where

the water quality standard could be met, we

were going to propose either the national

criteria or the general use standard.

There are some instances where you

might be able to remove some more species

from the national criteria document to more

accommodate fewer species in the waterway and

this was attempted on at least one parameter.

But when you get to a point where you're

removing too many species because of the

variability and the safety factor built in,

your criteria becomes more stringent.

MR. FORT: What parameters was that

that you attempted it on?

MR. TWAIT: That was for cadmium. And

the Agency took out the cold water species

L.A. REPORTING (312) 419-9292

181

and the species not native to Illinois and

the criteria became much more stringent just

because there were so few species involved in

the first place.

MR. FORT: And because you had fewer

species, your standard deviation got bigger

and therefore your safety factor got bigger

which sort of overwhelmed everything else,

correct?

MR. TWAIT: Yes.

MR. FORT: So it's statistics that

caused the problem, not the sampling results

that caused the problem?

MR. TWAIT: There was -- I don't know

what sampling results you're talking about,

but, yeah, the statistics were a problem.

MR. FORT: Let me just play it back.

If I understand what you were saying here, if

you had ten species that you had data on,

let's just assume for sake of argument all of

them were five parts per million was the key

number, but you conclude that -- and so

therefore you have a real high confidence

level or relatively high, it would be better

L.A. REPORTING (312) 419-9292

182

if it were 100 or 30 at least, but that you

have a pretty good set that's around five

parts per million as a standard.

But if you reduce it down from ten

to five and now the variability goes from

three parts per million to seven parts per

million, your statistics are going to make

you now go to ten parts per million or some

much higher number such as that, correct?

MR. TWAIT: Yes.

MR. FORT: I thought that's what you

were saying, but I wanted to see if I

understood. Thank you.

Madam Hearing Officer, I've got

some more questions in this set, but I think

they all get very specific to individual

standards, so if the rule is we're going to

go with the safe questions for individual

parameters, I'm done.

HEARING OFFICER TIPSORD: Well, I

believe that's what Ms. Franzetti ended with

so thank you very much, Mr. Fort.

MR. FORT: I guess I should say I'm

done for now.

L.A. REPORTING (312) 419-9292

183

HEARING OFFICER TIPSORD: Mr. Safley,

did you have anything at this point?

MR. SAFLEY: Not on behalf on Flint

Hills or Corn Products.

HEARING OFFICER TIPSORD: Okay. Let

me see if I can find my list. I forget who

is after Corn Products.

MR. FORT: I found a document that I

had forgot that I had in here. I have one

question.

HEARING OFFICER TIPSORD: And we're

going to hold you to that, no follow-ups,

just one.

MR. FORT: That's very fair. This is

a question on the document that was filed and

I think this was something that Mr. Yoder

mentioned. I had asked him a question was

there any other sampling on species in the

Chicago Sanitary and Ship Canal and I believe

he said that there was. And I believe the

document called Evaluation and Development of

Large River Biological Assessment Methods and

Standardized Protocols for Region Five is

that document. Is that an exhibit?

L.A. REPORTING (312) 419-9292

184

MS. DIERS: We haven't made it an

exhibit yet.

MR. FORT: I don't think it needs to

be, but I was just trying to clarify the

record. So I guess I'm on two questions

then.

HEARING OFFICER TIPSORD: Which one is

it?

MR. FORT: Evaluation. My question

goes to was any of this data collected on the

Chicago Sanitary and Ship Canal, because when

I go to the listing of the Chicago Area Water

System, Page 75, I don't see any site that's

being sampled here that's something I can

identify as being on the Sanitary Ship Canal.

Now, he may have misheard and thought I was

talking about the Chicago Area Waterway

System, but as to the ship canal was the

question.

MS. WILLIAMS: I would say at this

point if they know the answer, I'm not going

to object to them answering. But when this

document came up in Mr. Yoder's testimony, he

had said, well, I'm sure the Agency had a

L.A. REPORTING (312) 419-9292

185

copy of this, but all the witnesses had not

seen it. So I'm not sure that -- I'm not

sure if we'll be able to answer it.

HEARING OFFICER TIPSORD: How about

instead of objecting, you caveat any answer

from the Agency with that?

MS. WILLIAMS: That's exactly right.

Can anyone answer?

(Brief pause.)

MR. SULSKI: While we're looking and

trying to see, it doesn't look like any of

these are on the Chicago Sanitary and Ship

Canal.

MR. FORT: Okay.

HEARING OFFICER TIPSORD: And for the

record we are going to enter that as

Exhibit 35 if there's no objection. It's the

Evaluation and Development of Large River

Biological Assessment, is that the one we're

talking about?

MR. SMOGOR: Yes.

MR. FORT: Mr. Sulski, I came to the

same conclusion that it wasn't part of the

ship canal, but...

L.A. REPORTING (312) 419-9292

186

HEARING OFFICER TIPSORD: With that,

we move on to Chemical Industry Council.

MS. FREDE: We have no questions at

this time.

HEARING OFFICER TIPSORD: And that

goes to Mr. Andes with the Metropolitan Water

Reclamation District. Did you have anything

additional without getting into specific

criteria?

MR. ANDES: No.

HEARING OFFICER TIPSORD: Stepan?

MR. DIMOND: I didn't even understand

the distinction between the (inaudible) and

specifics, so the answer is no.

HEARING OFFICER TIPSORD:

Environmental Law Policy Center?

MR. ETTINGER: We have a question

which arguably fits, but we would rather keep

all of our things together.

HEARING OFFICER TIPSORD: And that

leaves us with Exxon Mobile.

MR. SAFLEY: I think that we're in the

same position.

HEARING OFFICER TIPSORD: Then we'll

L.A. REPORTING (312) 419-9292

187

go back to Ms. Franzetti.

MS. FRANZETTI: I know you all missed

me.

(Brief pause.)

MS. FRANZETTI: Okay. On my pre-filed

questions we are at Roman ten, Proposed

Thermal Water Quality Standards. These are

some background questions regarding the

MBI/CABB 2005 report which is Exhibit 15, I

believe, and it was also Attachment GG to the

Statement of Reasons.

Question number one, in regard to

the report by MBI and CABB titled Temperature

Criteria Options for the Lower Des Plaines

River, October 11th, 2005, which is

Exhibit 15, the Illinois EPA states at Page

81 of the Statement of Reasons that, quote,

US EPA Region 5 and Illinois EPA requested

this study to develop technical support and

temperature criteria options for the Lower

Des Plaines River, end quote. Would you

please explain the role of the US EPA Region

5 in the request for this study?

MR. TWAIT: US EPA Region 5 already

L.A. REPORTING (312) 419-9292

188

had a contract with MBI and they provided the

funding for the study.

MS. FRANZETTI: And did you seek out

assistance to come up with a way in which to

derive thermal criteria?

MR. TWAIT: I don't know whether we

sought assistance from US EPA or if they made

the offer. I don't know.

MS. FRANZETTI: And so they offered up

Mr. Yoder and his approach to deriving

thermal water quality criteria and the Agency

accepted the offer; would that be accurate?

MR. TWAIT: Yes.

MS. FRANZETTI: Now if the report was

based on the Lower Des Plaines River, how did

the Agency use the conclusions and options

presented in this report to develop

temperature standards for the CAWS as stated

at Page 81 in the Statement of Reasons?

MR. TWAIT: The Agency believed that

the CAWS system was similar to the Brandon

Pool, therefore, the Agency used the RAS

group, representative aquatic species of

eight species throughout the CAWS and then a

L.A. REPORTING (312) 419-9292

189

little bit later we added White Sucker to the

A Waters.

HEARING OFFICER TIPSORD: Mr. Dimond,

do you have a follow-up?

MR. DIMOND: I do if Ms. Franzetti is

done.

MS. FRANZETTI: Sure.

MR. DIMOND: Had anyone at the Agency

ever seen the methodology used by MBI in this

report before?

MR. TWAIT: I don't know the timing of

it, but I was involved with the ORSANCO group

who was working on water quality standards

for the Ohio River and they are using the

Chris Yoder methodology also.

MR. DIMOND: Did the Agency

investigate any methodologies other than

Mr. Yoder's methodology for coming up with

thermal water quality standards?

MR. TAIT: The ORSANCO group did

ask -- they asked Chris to look into it and

Chris found several -- I think two other

methodologies that were being used, one was

in Colorado if I remember correctly and the

L.A. REPORTING (312) 419-9292

190

other one was either in Wisconsin or

Minnesota.

HEARING OFFICER TIPSORD: For the

record, ORSANCO?

MR. TWAIT: O-R-S-A-N-C-O.

MR. SMOGOR: Ohio River Valley Water

Sanitation Commission. There's a few extra

words in there, but they are in there. I had

to look that up several times.

MR. TWAIT: Thank you.

MR. DIMOND: Did the Agency evaluate

those other methodologies for coming up with

thermal water quality standards?

MR. TWAIT: The Agency did not.

MR. DIMOND: That's all.

HEARING OFFICER TIPSORD:

Ms. Franzetti?

MS. FRANZETTI: Actually, one more

follow-up on that. Do you recall at least

generally what the nature was of the Colorado

methodology?

MR. TWAIT: I do not remember what the

nature of it was, but it was for cold water

species specifically.

L.A. REPORTING (312) 419-9292

191

MS. FRANZETTI: Similarly, do you

recall generally what either the Wisconsin or

Minnesota, whichever it was, and I know you

can't recollect specifically, but do you

recall anything about what that methodology

was based on?

MR. TWAIT: Yes. The way they wrote

their water quality standards was unique. It

was based upon the ambient -- they wrote it

for a discharger specifically. And the water

quality standard is based upon the ambient

temperature and the temperature that is being

discharged and what they have to meet outside

of a mixing zone.

MS. FRANZETTI: Mr. Twait, would it be

fair to say that the Agency was not opposed

to looking at other methodologies, but due to

reasons like time and resources, is that why

the Agency did not look at methodologies

beyond the one that Yoder calls his fish

temperature model?

MR. TWAIT: I would say that's

accurate.

MS. FRANZETTI: There was a

L.A. REPORTING (312) 419-9292

192

temperature methodology proposed by Midwest

Generation to the Agency. Did the Agency

give that any consideration?

MR. TWAIT: Would you be specific as

to which methodology you're talking about?

MS. FRANZETTI: Why don't we just take

the last one that we presented to you which

was approximately in August of 2007?

MR. TWAIT: I read the proposal that

was sent in in August, but our rulemaking was

basically set in August and our director had

signed off on our proposal at that time so

the Agency didn't give all that much -- we

didn't look into it far enough because we

weren't going to change our proposal at that

time.

MS. FRANZETTI: Okay. Fair enough.

What you're saying is from the Agency's

perspective, although Midwest Gen might not

have realized it, that proposed methodology

came to you too late to be given thorough

consideration?

MR. TWAIT: Yes.

MS. FRANZETTI: And I take it since

L.A. REPORTING (312) 419-9292

193

that time, given that you've made your

proposal to the Board, it has not been given

any further consideration?

MR. TWAIT: Not enough that we

would -- since we knew we were not going to

be changing our proposal, no, we haven't.

We've read it, but that would be it.

MS. FRANZETTI: Okay. Did you

consider any prior submittals by Midwest

Generation for deriving thermal criteria?

MR. TWAIT: I think the other proposal

we didn't view it as a water quality

standard. I believe the other proposal just

had alternative limits at the I-55 bridge.

MS. FRANZETTI: Okay. That's your

understanding of what was submitted?

MR. TWAIT: Yes.

MS. FRANZETTI: Okay. I'll leave it

at that time. Moving on to question two, and

I asked basically the same question of

Mr. Yoder but I didn't ask it of the Agency,

so that's why I don't think it's been asked

and answered.

What steps did the Agency take to

L.A. REPORTING (312) 419-9292

194

ensure that the MBI/CABB 2005 report,

Exhibit 15, was consistent with the 1985 US

EPA guidance for developing water quality

criteria particularly as to the level of

protection and priority for field data? And

by that we mean that we believe the 1985 EPA

guidance document does support giving

priority to field data over literature or

laboratory data.

MR. TWAIT: If your question is -- the

Agency relied on the consultant's knowledge

to be consistent with US EPA guidance.

MS. FRANZETTI: You did not do an

independent review to compare what Mr. Yoder

came up with in terms of how consistent it

was with the US EPA 1985 guidance, correct?

MR. TWAIT: Correct. He was the --

MS. FRANZETTI: Expert.

MR. TWAIT: -- expert.

MS. FRANZETTI: I understand. And so

you relied on him?

MR. TWAIT: Yes.

MS. FRANZETTI: I think then we can

probably go quickly through these next few

L.A. REPORTING (312) 419-9292

195

questions. Does the Illinois EPA know what

portion or percentage of the fish species

database on which the MBI/CABB 2005 report,

Exhibit 15, recommendations are based consist

of unreviewed data?

MR. TAIT: The Agency does not know

the percentage of the data that is

unreviewed.

MS. FRANZETTI: Moving on to number

four, did either the Illinois EPA or the

US EPA Region 5 have Exhibit 15 peer reviewed

or take any other steps to address quality

assurance issues relating to the report?

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

MS. FRANZETTI: Number five, is it

correct that after Exhibit 15 was completed

there was no meeting of the stakeholders

group for the Lower Des Plaines held to

review and discuss the report?

MR. TWAIT: Yes, that is correct.

MS. FRANZETTI: Do you know why that

was?

MR. TWAIT: I don't know.

MS. FRANZETTI: Okay. Moving on then

L.A. REPORTING (312) 419-9292

196

to B, Thermal Standards Development. On Page

2 of the Twait pre-filed testimony it is

stated that he, quote, interpreted, end

quote, the thermal information Chris Yoder

provided and translated that information into

the proposed thermal water quality standards.

Now I recognize I think some of

this has been covered, and bear with me, I'll

try not to be repetitive. I think A has not

been asked and answered. Did this

interpretation, quote, translation, end

quote, include any changes that were intended

to address Yoder's statement on Page 7 of

Exhibit 15 that, quote, the model output will

propagate a degree of uncertainty which can

be considered in the eventual derivation and

application of the temperature criteria? In

other words, did you make adjustments to

account for that degree of uncertainty?

MR. TAIT: This statement was not

specifically addressed. However, the Agency

provided that the daily maximum could be

exceeded by two degrees Celsius 2 percent of

the time but it was not specifically because

L.A. REPORTING (312) 419-9292

197

of the statement on Page 7 of Exhibit 15.

MS. FRANZETTI: Was it in part

included in order to address the general

principal of some uncertainty perhaps to the

thermal numbers? I'm not trying to put words

in your mouth, Mr. Twait, I just didn't know

if you were saying, well, not specific to

this statement, but generally because of

concerns regarding uncertainty of the

reliability of the numbers.

MR. TWAIT: No. I think the Agency

put in the two degrees Celsius 2 percent of

the time excursions based upon historically

putting that in and for compliance reasons.

MS. FRANZETTI: Okay. Moving on to B.

As noted at Page 3 of Exhibit 15, quote, the

steady or regular increases in test

temperature inherent to the methodologies

used do not reflect environmental reality,

end quote.

Did the Agency's interpretation of

the thermal information provided by Mr. Yoder

result in any changes to his recommended

thermal criteria in order to, quote, reflect

L.A. REPORTING (312) 419-9292

198

environmental reality, end quote?

MR. TWAIT: The Agency did not make

any changes as to the result of those

concerns.

MS. FRANZETTI: Was there any review

of Mr. Twait's interpretation and translation

of the Yoder fish species data that was

performed by a recognized expert in such

matters?

MR. TWAIT: No. These changes were

discussed at meetings within the Agency.

MS. FRANZETTI: Give me a moment. I

think maybe part of two has been asked and

answered. I'm not sure. We talked about

White Sucker, but I don't think this question

has been answered. Question two, on Page 12

of the Twait pre-filed testimony it is stated

that the eight species RAS list was expanded

by adding the White Sucker to this list.

Please provide the Illinois EPA's

justification for adding the White Sucker to

the RAS list and identify who proposed its

addition.

MR. TWAIT: Ed Hammer of US EPA

L.A. REPORTING (312) 419-9292

199

proposed the addition of White Sucker to

certain CAWS waterways and Stonecat Madtom to

the Upper Dresden Island Pool.

The Agency personnel agreed with

the addition of the White Sucker and that's

when we made the CAWS A Waters and we

disagreed with the addition of the Stonecat

Madtom.

MS. FRANZETTI: And because you

disagreed, you didn't add it?

MR. TWAIT: That is correct.

MS. FRANZETTI: Okay. Now, just so I

understand, with respect to what Region 5

proposed on the White Sucker, was it just

proposing its addition for the Use A Waters

or was it proposing its addition across the

board and you scaled it back to the Use A

Waters?

MR. TWAIT: At the time of our

proposal, and that would have been the March

proposal, we only had one segment for the

CAWS waters and Brandon Pool and I think Ed

suggested that there was some segments in the

waterways that had White Sucker and so we

L.A. REPORTING (312) 419-9292

200

went and looked at it and we agreed that

White Sucker was there and I believe that's

when we split off into A and B Waters for

temperature.

We had A and B Waters already, but

they were not differentiated for temperature.

At this point in time is when we separated

them for temperature, I believe.

MS. FRANZETTI: Okay. So the addition

of White Sucker to the Aquatic Life Use A RAS

list actually caused a change in what the

Agency decided to propose as the thermal

standards for the Use A Waters?

MR. TWAIT: Yes.

MS. FRANZETTI: And that's because

it's believed to be the most sensitive

species?

MR. TWAIT: With the addition of the

White Sucker, that is the most sensitive

species out of those what would be nine fish

species.

MS. FRANZETTI: And the White Sucker

thermal numbers that we're talking about

driving that proposed standard, they come

L.A. REPORTING (312) 419-9292

201

from Mr. Yoder's fish temperature model,

correct?

MR. TWAIT: Yes.

MS. WILLIAMS: I would like to ask an

indulgence and it's up to your ruling, but

yesterday there was a question I had trouble

answering on what changed in the temperature

propose that you requested we answer in

writing. I think we would be prepared now to

put that on the record here unless you still

prefer that it be done later in writing.

HEARING OFFICER TIPSORD: It was

Ms. Franzetti's question?

MS. WILLIAMS: No, it was actually

from Stepan.

HEARING OFFICER TIPSORD: I'm fine

with him going ahead and answering it now.

That would be fine.

MS. WILLIAMS: Well, I know the

question on -- it was question four on Page

14 that we were asked to respond to in

writing which said on what basis did the

Agency change the proposed temperature

standard between the last proposal to this

L.A. REPORTING (312) 419-9292

202

SAG and what was proposed to the Board?

So I would like you to clarify for

us the changes that were made from the March

2007 outreach meeting document and what is

contained in the Agency's proposal in this

rulemaking.

MR. TWAIT: I believe there were four

changes. The first change we corrected an

error for the summer temperature for the

eight species RAS. This made our proposal a

little bit more stringent.

I know I said yesterday that

everything was less stringent, but I was

mistaken. It did make it more stringent.

The daily maximum went from 91.9 degrees

Fahrenheit to 90.3 degrees Fahrenheit and the

monthly average went from 83 -- I'm sorry, it

went from 88.3 degrees Fahrenheit to

86.7 degrees Fahrenheit.

MS. WILLIAMS: And you're referring to

the CAWS A Waters?

MR. TWAIT: Yes. This would be for --

I'm sorry, this would be for CAWS B Waters.

MS. WILLIAMS: Okay.

L.A. REPORTING (312) 419-9292

203

MR. TWAIT: The second change was, as

we were just discussing, the addition of the

White Sucker to the A Waters and that did

make it more stringent for the A Waters.

The third change was that we

included MWRD effluent as part of the

background and this made the non-summer

months less stringent. And this was done

based on the request by MWRD saying that -- I

believe they noted that they were the source

of the water so they should be, quote, end

quote, background.

And I believe the fourth and last

change was the Agency decided to extend the

daily maximum summer temperature throughout

the year instead of having monthly daily

maximum temperatures based on ambient data.

MS. WILLIAMS: And did that last

change make it more stringent or less

stringent?

MR. TWAIT: Less stringent.

HEARING OFFICER TIPSORD: Thank you

very much for that.

MR. TWAIT: Sorry I didn't have it

L.A. REPORTING (312) 419-9292

204

yesterday.

MS. FRANZETTI: Moving on to

question --

MR. DIMOND: I'd like to ask a

follow-up on that especially since it was my

question being answered.

MS. FRANZETTI: Yes.

MR. DIMOND: I will have to go back

and look at the comparison. So I take it

that in the March 2007 proposal there were

daily maximum temperatures that changed for

different periods during the year and so what

you're saying is that you changed it so that

it's just one daily maximum, just one number

throughout the entire year now?

MR. TWAIT: Yes.

MR. DIMOND: Okay. And then I

didn't -- the first one that you talked

about, you said you corrected a temperature

in the eight species RAS. That only affects

the Aquatic Life Use B Waters then, right?

MR. TWAIT: Yes, Aquatic Life Use B

Waters and Brandon Pool. And at the time it

would have affected the A Waters also, but

L.A. REPORTING (312) 419-9292

205

then we went back and added White Sucker so

the White Sucker was driving the proposal.

MR. DIMOND: So what was -- I didn't

quite understand what the correction was that

you made to the eight species RAS list.

MR. TWAIT: Sure. Exhibit 15 has an

error in it for the secondary contact --

well, for the eight species and the Agency

corrected that with Attachment HH.

MR. DIMOND: Okay. That's it. Thank

you.

MS. FRANZETTI: Moving on to question

three. On Page 12 of the Twait pre-filed

testimony it is stated that the Illinois EPA

determined that the 27 species RAS list

identified by Chris Yoder for his modified

use classification was an appropriate basis

on which to derive the thermal water quality

standards for the Upper Dresden Pool.

Doesn't the use of only these 27 species that

are based on a modified use classification

show that the available habitat in the Upper

Dresden Pool for aquatic life is more limited

than for a full aquatic life use designation

L.A. REPORTING (312) 419-9292

206

such as general use?

MR. TWAIT: Yes. Well, I won't say

yes. The Agency used a modified use RAS 1.

We could have and we probably should have

used the general use RAS 3 and come up with

the same criteria.

MS. FRANZETTI: The last part of that

answer threw me.

MR. TWAIT: If we were to be

consistent with our proposal throughout just

saying that was general use.

MS. WILLIAMS: Do you want him to

explain why it would be the same criteria?

MS. FRANZETTI: I'm not sure if that's

what he's saying. Have you already looked at

that and determined that using Mr. Yoder's

methodology, whether you were to use the

general use RAS list you'd wind up with

essentially the same thermal values as you

did using modified use?

MR. TAIT: Yes, for the general use

RAS 3 it would have the same criteria for the

daily maximum monthly average.

MS. FRANZETTI: Doesn't that cause you

L.A. REPORTING (312) 419-9292

207

some basis to doubt the reliability of this

Yoder methodology for deriving thermal

criteria?

MR. TWAIT: Based on his methodology,

he had the same RAS -- the same species that

was most sensitive for those two categories

and that was the White Sucker.

MS. FRANZETTI: I understand what

causes it to come out the same as between a

modified use category that does not attain

clean water aquatic life goals and a full use

general use classification that does. My

question is does that cause you some doubt or

discomfort about relying on such a

methodology?

MR. TWAIT: I think Chris testified

when he was here that he did not break these

categories to mean anything specific or at

least that's how the Agency took it. He just

used different options.

MS. FRANZETTI: I don't think my

question has been answered, but I'll move on.

MS. WILLIAMS: I think that you may be

right. Can you repeat it?

L.A. REPORTING (312) 419-9292

208

MS. FRANZETTI: I'm just asking

whether the fact that a methodology that

keeps churning out basically the same

numbers, irregardless of the significant

difference in the use designation, creates

some doubt in your mind as to whether or not

this is a good, reliable, you know, whatever

words you want to use, acceptable methodology

for deriving thermal water quality standards?

MR. TWAIT: Since I know how his

criteria work and it all depends on

projecting the most sensitive species, I

would -- I don't know that I can answer that

in the affirmative.

MS. FRANZETTI: Okay.

MR. DIMOND: I have a couple of

follow-ups. How many species were in the

general use RAS 3 category?

MR. TWAIT: There were 49 and then he

removed Stonecat Madtom, so I would say 48.

MR. DIMOND: Okay. Thank you.

MS. FRANZETTI: Moving on then to C,

Seasonal Ambient Temperature Data.

HEARING OFFICER TIPSORD: Excuse me,

L.A. REPORTING (312) 419-9292

209

Ms. Franzetti, 4 has been asked and answered?

MS. FRANZETTI: I'm sorry. I jumped

over it.

HEARING OFFICER TIPSORD: I only

noticed because I think we'll take a break

before we move into C.

MS. FRANZETTI: I will ask it. Did

Region 5 explain why or provide any technical

justification for its request that the

Stonecat Madtom be added?

MR. TWAIT: I cannot recall the phone

conversation exactly, but I do believe that

they suggested that the Stonecat Madtom --

let me make sure I'm talking about the right

species. That StoneCat had been found in the

Lower Des Plaines River.

MS. FRANZETTI: And you disagreed with

it based on your data that indicated it

really wasn't present?

MR. TWAIT: No. I talked to our

biologist and the habitat was not conducive

to StoneCat and so we made the decision that

if Stonecat Madtom was found, that this was

not its primary habitat.

L.A. REPORTING (312) 419-9292

210

MS. FRANZETTI: Do you recall what was

it about -- and I guess I should stop. We're

talking about the Upper Dresden Pool habitat,

right?

MR. TWAIT: Yes.

MS. FRANZETTI: Do you recall what it

was about the Upper Dresden Pool habitat that

wasn't conducive to the Stonecat Madtom?

MR. TWAIT: I think I remember, but

Roy would probably --

MR. SMOGOR: I talked with Scott about

this. He asked me about my opinion of

StoneCat in Lower Des Plaines. I primarily

based my opinion on the lack of historical

records of StoneCat in the main stem of the

Lower Des Plaines. Reasons why that never

occurred there, I don't really recall

discussing much.

MR. JOHNSON: I thought that was a

rock band.

MS. FRANZETTI: I know. I was going

to say that.

MR. TWAIT: I remember the

conversation a little bit. I believe we

L.A. REPORTING (312) 419-9292

211

looked up in one of the fish --

MS. FRANZETTI: Books?

MR. TWAIT: -- fish books is what

we're calling them.

MS. FRANZETTI: Works for me.

MR. TWAIT: And I believe their

habitat was riffle run habitat.

MR. SMOGOR: That's correct.

Primarily, it is. Primarily, their habitat

is riffle run, but I don't want to say that

there's no riffle run in Lower Des Plaines

because of the upper part of the tailwater I

think has some habitat that may be suitable

to StoneCat.

But I don't think they've

historically been known to occur in Lower Des

Plaines so that kind of trumps that, at least

in my opinion.

MS. FRANZETTI: I see. Right. Off

the record.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER TIPSORD: At this

point we'll take a break. Let's go

L.A. REPORTING (312) 419-9292

212

ten minutes or so.

(Whereupon, after a short

break was had, the

following proceedings

were held accordingly.)

HEARING OFFICER TIPSORD:

Ms. Franzetti, whenever you're ready.

MS. FRANZETTI: We're moving into the

Subpart C of my pre-filed questions, Seasonal

Ambient Temperature Data. Question one on

Page 83 of the Statement of Reasons and Page

13 of the Twait pre-filed testimony it is

stated that the, quote, criteria for

non-summer periods are derived to maintain

seasonal norms and cycles of increasing and

decreasing temperatures, end quote. Explain

what the Agency means by the terms seasonal

norms and cycles of increasing and decreasing

temperatures.

MR. TWAIT: This language was taken

from Page 15 of the MBI report, which is

Exhibit 15. Basically means that the normal

cycle is preserved where it's warmer in the

summer and cooler in the winter and a gradual

L.A. REPORTING (312) 419-9292

213

change in the springtime and fall.

MS. FRANZETTI: So basically are the

two phrases -- are seasonal norms basically

the same thing as cycles of increasing and

decreasing temperatures or are they two

different things?

MR. TWAIT: I think the seasonal norms

are the winter and the summer and the cycles

of increasing and decreasing temperatures are

more toward the fall and spring. That's how

I interpreted it.

MS. FRANZETTI: Question two, explain

how the proposed thermal water quality

standards maintained seasonal norms and

cycles of increasing an decreasing

temperatures.

MR. TWAIT: The Agency tried to pick a

background station. I think we've explained

how we picked that background station. And

having a period average will force or will

have a seasonal component and it will

increase in the spring and decrease in the

fall.

MS. FRANZETTI: Well, I guess I'll use

L.A. REPORTING (312) 419-9292

214

Upper Dresden Island Pool. I'm looking at

Section 302.408, which is the proposed

temperatures water quality standards. In

Subparagraph D, as in dog, are the proposed

temperatures for the Upper Dresden Pool. For

example, the period average for the month of

January is 54.3 degrees Fahrenheit, for

February, it drops down a little bit to 53.6

and then for March it starts going up to --

it goes up to 57.2.

So just using those three months

for example, is the point that -- is the

theory that you maintain these temperatures

for the entire month's average in or about

these 50-something degrees to maintain that

would be the seasonal norm for the winter

months?

MR. TWAIT: You could look at it that

way.

MS. FRANZETTI: I'm just trying to

interpret what you said, so tell me if you

would look at it differently.

MR. TWAIT: The seasonal norms I think

is going throughout the winter I guess and

L.A. REPORTING (312) 419-9292

215

also throughout the summer, yes.

MS. FRANZETTI: And then in the April

to -- is the April-May time period what we

would define as spring or should I go into

the first half of June, include the first

half of June in that?

MR. TWAIT: With the Chris Yoder

methodology, he's considering the summer from

June 16th to September 15th.

MS. FRANZETTI: And so for the cycles

of increasing and decreasing temperatures

which apply to the fall and springtime

period, what did the Agency do here to

implement that theory of needing increasing

and decreasing temperatures for the spring?

And start first by what are you defining as

spring based on how the period average months

and dates are included?

MR. TWAIT: We didn't do anything

specific for springtime. What we did is for

the non-summer months we looked at the

background temperatures. And once again,

that was the ambient station plus MWRD data

further effluent and we separated it into the

L.A. REPORTING (312) 419-9292

216

same period averages that Chris had in his

report and we took the 75th percentile and

made that into the period average.

MS. FRANZETTI: Okay. Let me just

break that down and make sure we all

understand that. When you say you took the

same period averages as Mr. Yoder did, you

mean if he split the month into two different

periods as listed here, for example, for

April, April 1st to 15th has a period average

of 60.8 degrees Fahrenheit, April 16th to

30th has a different period average of 62.1,

if he split the month of April, you split the

month of April, correct?

MR. TWAIT: That is correct.

MS. FRANZETTI: Okay. So that is what

you meant by following his same period

averages?

MR. TWAIT: Yes.

MS. FRANZETTI: Okay. Now with

respect to getting the thermal values for

each of those period averages time periods

you created, that's where you used the

background temperature data which was, as you

L.A. REPORTING (312) 419-9292

217

previously explained, either the 75th

percentile thermal temperature level of the

district's effluent discharge or if it was --

I forget what you said -- more stringent you

use the --

MR. TWAIT: We use the least stringent

number between the district's effluent data

and the receiving stream data.

MS. FRANZETTI: Okay. What I'm not

understanding or grasping is how the use in

the fall, winter and spring -- well, let me

strike that.

Am I understanding correctly that

the use of the district's effluent

temperature and the stream station, whichever

was the least stringent, was that done for

fall, winter, spring?

MR. TWAIT: No. That was done for

each of the periods here. Like January 1st

through 31st we looked at the effluent data

and we looked at the stream data.

For February 1st through 28th we

looked at the effluent data and the stream

data and so on and so forth.

L.A. REPORTING (312) 419-9292

218

MS. FRANZETTI: So the period average

is totally determined by either the

district's effluent data or that background

stream sampling station throughout the year?

MR. TWAIT: For the period average,

yes.

MR. ETTINGER: Were you going to ask

about the 75th percentile?

MS. FRANZETTI: I'm going to get

there. I'm just first trying to make sure I

understand what the period is based on.

MR. TWAIT: That's for the period

average for the non-summer months.

MS. FRANZETTI: But see, Mr. Twait,

that's what I was trying to get at before.

What's the non-summer months?

MR. TWAIT: That is everything other

than June 16th through the September 15th.

MS. FRANZETTI: Okay.

MR. TWAIT: Those are the dates for

his summer criteria.

MS. FRANZETTI: Okay. So for those

non-summer months that run from

September 16th through June 15th, how does

L.A. REPORTING (312) 419-9292

219

the use of the district's effluent

temperatures account for or address this need

for, quote, unquote, seasonal norms?

MR. TWAIT: I guess nothing in this

system is, quote, unquote, normal. We had

originally chosen just to use the ambient

station but the district made the comment and

we accepted that during parts of the year

they are the background. I mean, all the

flow is theirs and so --

MS. FRANZETTI: Because it's an

effluent dominated stream --

MR. TWAIT: Yes.

MS. FRANZETTI: -- during most of the

parts of the year?

MR. TWAIT: Yes.

MS. FRANZETTI: Okay. So given that

it's not really a normal stream and it is an

effluent dominated stream, isn't that really

what your numbers reflect, your proposed

thermal standards, and not really trying to

accommodate seasonal norms?

MR. TWAIT: For these waters, those

are basically the norms.

L.A. REPORTING (312) 419-9292

220

MS. FRANZETTI: Okay.

MR. TWAIT: Seasonal norms.

MS. FRANZETTI: And same question with

respect to the increasing and decreasing

temperature cycles, does the district's

effluent reflect that or is that really not a

concept that comes into play in the thermal

water quality standards that have been

proposed here?

MR. TWAIT: I believe the district's

effluent temperature does increase in the

spring/fall and in the summer, but not as

much as the receiving stream did and so in

those cases we used the receiving stream

data.

MS. FRANZETTI: Mr. Twait, I'm

realizing I'm not sure when you said earlier

that you used the least stringent between the

district and the receiving water background

station. What least stringent means based on

that last answer, because I think you just

said if the district's effluent temperature

didn't increase as much or decrease as much

as the background station, you went with the

L.A. REPORTING (312) 419-9292

221

background station value?

And, I'm sorry, I'll explain. I'm

thinking that a greater decrease by the

background station would actually result in a

more stringent standard, that's why I'm

confused.

MR. TWAIT: We did not look at how

much it -- I'm just -- I did that just to

explain there's not as much variation in the

MWRD's effluent as there is in a receiving

stream during the spring and fall.

For each of these months or half

months for the non-summer period, we took the

75th percentile of the effluent and of the

receiving stream and we used the least

stringent. It didn't matter which was going

up or down the most.

MR. ETTINGER: By least stringent you

mean the higher number?

MR. TWAIT: Yes.

MS. FRANZETTI: Mr. Ettinger, I'll get

to the 75th percentile question but not for a

few more questions.

MR. ETTINGER: I'll let you do it

L.A. REPORTING (312) 419-9292

222

whenever you're ready.

MS. FRANZETTI: I'm not ignoring. I

figure I'll just stay with the script.

Question number three, to what

extent, if at all, has the Illinois EPA

considered whether the temperatures it has

proposed for, quote, maintaining seasonal

norms and cycles, end quote, necessarily

reflect the thermal prerequisites of the

aquatic species that inhabit or that it

anticipates will inhabit CAWS and the Upper

Dresden Pool?

MR. TWAIT: Maintaining seasonal norms

and cycles is for reproduction in the fish

and the answer to your question is the Agency

has not specifically looked at the

requirements of the fish in the Upper Dresden

Island Pool or the CAWS or Brandon Road.

HEARING OFFICER TIPSORD: Mr. Safley?

MR. SAFLEY: Tom Safley this time on

behalf of Corn Products. I want, Mr. Twait,

to zero in a little bit on the CAWS and

Chicago Sanitary and Ship Canal. And your

answer that you just gave was that the change

L.A. REPORTING (312) 419-9292

223

in seasonal temperature is meant to address

or take into account reproduction; is that

correct?

MR. TWAIT: Yes.

MR. SAFLEY: Okay. Earlier in your

testimony today and also in your pre-filed

testimony you stated that at least some

portions of the Chicago Area Waterway System,

and I think in particular the Chicago

Sanitary and Ship Canal are -- the Agency is

not protecting those waters to protect early

life stages; is that correct?

MR. TWAIT: Yes.

MR. SAFLEY: If that's the case, what

is the need for the seasonal variation in the

Chicago Sanitary and Ship Canal, for example,

if the Agency does not expect early life

stages to be present?

MR. TWAIT: The Agency is not

protecting for early life stages because the

habitat is not there for the early life

stages. However, it was thought that the

fish could swim upstream or downstream to

find the habitat to spawn, so we're trying to

L.A. REPORTING (312) 419-9292

224

protect their ability to spawn.

MR. SAFLEY: And just so I understand,

it's the Agency's position that the

temperature in, for example, the Chicago

Sanitary and Ship Canal does have an effect

on the reproduction of the fish in that area

even if they're not spawning in that water

body?

MR. TWAIT: That is the theory behind

wanting to protect for the seasonal norms,

yes.

MR. SAFLEY: Okay. And what's the

support for that theory or information that

the Agency relied upon?

MR. TWAIT: That is all within

Attachment 15 in Chris Yoder's.

HEARING OFFICER TIPSORD: Exhibit 15?

MR. TWAIT: Exhibit 15. Thank you.

MR. SAFLEY: Those are my only

questions.

HEARING OFFICER TIPSORD: Mr. Fort,

you had a follow-up?

MR. FORT: Mr. Twait, your comments

here about the fish swim, is that -- can you

L.A. REPORTING (312) 419-9292

225

comment upon the number of locks and damns

there are in the Chicago Sanitary and Ship

Canal and how quickly the fish will swim up

and through those devices?

MR. TWAIT: I think there's only one

lock and damn that is on the lower portion of

the Sanitary and Ship Canal and so the fish

could swim up into the Cal Sag Channel or

farther up to where there's available habitat

on the Sanitary and Ship Canal. And if

they're in the Brandon Pool, then their

downstream is Brandon Lock and Damn, upstream

is the Lockport Lock and Damn, however, they

can get to the Des Plaines River in the Upper

Des Plaines River where it's general use

water quality standards.

MR. FORT: I think I have to look at a

map for various lock and damns, but go ahead.

I'll look at that before I go any further.

MS. FRANZETTI: Can I ask a question

to make sure I understand what you're saying?

I understand that the Agency believes that

maintaining seasonal norms and cycles is

necessary for reproduction in fish. But then

L.A. REPORTING (312) 419-9292

226

in answer to Mr. Safley's questions you were

saying but it's also necessary to maintain

those seasonal norms and cycles in areas

where you don't expect reproduction because

fish may be passing through those areas to

get to areas where they can reproduce,

correct?

MR. TWAIT: Yes.

MS. FRANZETTI: Okay. So if I'm a

fish and I'm in the mood for love and I got

to get to where I need, you're saying that if

I happen to pass through some waters that are

not consistent with those seasonal norms,

when I get to the other side I'm not going to

be able to reproduce?

MR. SULSKI: I'm thinking of Yoder --

MS. FRANZETTI: It doesn't seem to

make sense.

MR. SULSKI: Yes. No. I'm thinking

of Yoder's testimony that in addition to

reproductive times, you have a

pre-reproductive time period where adults

have to go through a seasonal norm to ready

themselves for reproduction.

L.A. REPORTING (312) 419-9292

227

So if you have a fish residing in

or passing through an area that doesn't have

those seasonal norms, it's not

morphologically getting ready for

reproduction.

MS. FRANZETTI: So the fish that tend

to live in the Sanitary and Ship Canal,

you're saying they will go elsewhere to

reproduce and so they need this seasonal norm

to get them ready to do that?

MR. SULSKI: That's my understanding

of the Yoder's testimony.

MS. FRANZETTI: I understand that.

You're trying to relay what he said. Okay.

MR. TWAIT: I don't know that it's

necessarily just they're going somewhere else

to reproduce, but they will go somewhere else

to spawn. I don't know if there's much of a

difference there.

MR. SAFLEY: If I could follow-up

again? Tom Safley. That was going to be my

question in relating back to a response,

Mr. Twait, that you gave to an earlier

question of Ms. Franzetti. Has the Agency

L.A. REPORTING (312) 419-9292

228

looked at what temperatures are conducive to

spawning as opposed to what temperatures are

conducive to this pre-spawning period that

Mr. Sulski mentioned?

MR. SMOGOR: If you're asking for a

specific temperature as to what cues the --

acts as cues, I don't know specific

temperatures at which fish are cued or

triggered.

MR. SAFLEY: And I didn't necessarily

mean to ask for specific temperatures, but

Ms. Franzetti's question three was has the

Agency looked at how this maintenance of

seasonal norms is going to affect the thermal

prerequisites of the fishing and I thought

Mr. Twait's answer was we haven't looked at

that question. I was trying to hone in even

more specifically and make sure I'm correct

that the Agency has not considered the issue

of essentially is it necessary for the same

seasonal variations to occur at least to the

same degree if the spawning is not occurring

in that water body and all that's occurring

in that water body is the pre-spawning

L.A. REPORTING (312) 419-9292

229

period. And it sounds to me like the Agency

has not separated that issue and looked

specifically at that issue. I just wanted to

make sure that I was correct about that.

MR. SULSKI: Well, I think that the

response to the question was whether they're

spawning in that waterway or not, if they're

residing there, they have the ability to

reside there for periods of time, if you

disrupt the seasonal norms, you have the

potential of morphologically disrupting their

processes so that they wouldn't be ready to

spawn or they wouldn't spawn or they

wouldn't, you know --

MR. SAFLEY: Right. And I apologize.

I was just trying to get a little bit more

specific if it was possible or the Agency had

had any data on whether you could separate

outside temperatures at the time of spawning

as opposed to temperatures pre-spawning and

what kind of effect that might. I just was

asking if that --

MS. WILLIAMS: Can I ask a follow-up,

too, I guess or a restatement? I think part

L.A. REPORTING (312) 419-9292

230

of what you're asking is is there data out

there that we're aware of that would tell us

the difference in the temperature needs or

the specifics of the temperature needs for

this gametogenesis in general?

MR. SMOGOR: My experience with some

of the state fishery fish texts that have

species-by-species accounts of the animal's

natural history and observations made on the

species, there are observations of water

temperatures at which fish are found in

particular spawning colors or spawning

conditions and even temperatures available at

which -- that are associated with

observations of actual spawning of fish.

I don't know of any specifics on

temperatures at which fish first start to --

you know, internally maybe are triggered to

get ready for the spawning season. I'm not

familiar with any detail other than that.

MR. SAFLEY: And that was going to be

my next follow-up question. Is there any way

or does the Agency have any information on

whether fish need a higher temperature or a

L.A. REPORTING (312) 419-9292

231

lower temperature at that pre-spawning stage

as opposed to at the spawning stage, and it

sounds like the answer to that question is,

no, the Agency does not have any information

on that.

MR. TWAIT: While Roy was talking here

I did find some. In Appendix Table Z3 of

Attachment 1 of Chris Yoder's pre-filed

testimony -- I'm sorry, maybe it's not

attachment one. It's Attachment 3 of Chris

Yoder's pre-filed testimony.

HEARING OFFICER TIPSORD: Which is

Exhibit 16.

MR. SAFLEY: So I should look at that

is what you're saying?

MS. FRANZETTI: Hang on. Let's let

Mr. Twait tell us what type of information is

in that appendix.

MR. TWAIT: The Agency has not looked

at this specifically. And this only talks

about spawning periods and associated low and

high temperatures, not necessarily what they

need for gametogenesis.

MS. FRANZETTI: Or as I like to call

L.A. REPORTING (312) 419-9292

232

it, just getting ready.

HEARING OFFICER TIPSORD: Mr. Andes,

you had a follow-up, as well?

MR. ANDES: Yes. We're talking a lot

about spawning, but I seem to recall a

discussion about yesterday, correct me if I'm

wrong, but yesterday there wasn't any actual

evidence of spawning, it was simply that

there were fish collected that were smaller

than normal; am I right?

MR. SMOGOR: If you're referring to, I

think, some of my testimony yesterday, you

asked is there evidence of spawning in

Chicago Area Waterway System and maybe I

didn't use the word inferred, but there was

inferred evidence of spawning, which is

not -- I agree that's not direct observations

of fish spawning.

But the inference is that if small

individuals do occur across several species,

it's likely that they did occur -- that they

did spawn somewhere in the system to allow

the occurrence of those small sub-adult

individuals.

L.A. REPORTING (312) 419-9292

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MR. ANDES: Somewhere in the system?

MR. SMOGOR: Somewhere in the system.

I cannot infer exactly where they did spawn.

MR. ANDES: Okay.

HEARING OFFICER TIPSORD: Mr. Safley?

MR. SAFLEY: If I could just continue,

we've been talking about reproduction, does

the changes in -- the seasonal changes in

temperature, does that have any relevance to

the development of early life stages or is

the only issue with regard to seasonal

changes the reproductive activity?

MR. TWAIT: I believe it's the

reproductive activity.

MS. FRANZETTI: If I can just distill

a few things from this? As we sit here today

we don't know whether every species needs

this increasing, decreasing temperature or

seasonal norms, whichever, in order to ready

itself to reproduce, correct? We don't know

that all of them need this?

MR. SMOGOR: I don't know that.

MS. FRANZETTI: Well --

MR. SULSKI: We do know one thing,

L.A. REPORTING (312) 419-9292

234

though, just an obvious thing is that

relatively speaking we've been around here

for a very short period of time and the

aquatic wildlife within our area developed

over thousands and thousands of years and

developed in a system that had seasonal

norms. I just wanted to throw that out.

MS. FRANZETTI: Can I just finish

this? Couple more just on this. You

don't --

MR. SULSKI: Sex and evolution, where

can we go next?

MS. FRANZETTI: And I'm trying to be

careful. Isn't it true that gametogenesis

has only been demonstrated for a few species?

And, again, if you don't know, say you don't

know.

MR. SMOGOR: My understanding of the

word gametogenesis is gametes are the

reproductive sperm and eggs and genesis is

creation of sperm and eggs, so gametogenesis

happens in any reproducing -- sexually

reproducing organism.

MS. FRANZETTI: Okay. Let me be more

L.A. REPORTING (312) 419-9292

235

specific. That you need the cool period

to --

MR. SMOGOR: To get ready.

MS. FRANZETTI: To get ready.

MR. SMOGOR: I'm not aware that for

every species it's been absolutely proven

that a cool period is needed to get ready.

MS. FRANZETTI: And are you aware that

it's only been proven for a few species that

it is needed?

MR. SMOGOR: No, I'm not aware of

that.

MS. FRANZETTI: Okay. That's fine.

And, therefore, it is possible that the

species that do need it are not species that

are either present or are going to be present

in the Chicago Sanitary and Ship Canal or

Brandon Pool?

MR. SMOGOR: Not knowing -- taking

your word that it's only been proven for a

few species, not knowing those species and

not knowing much about that information, I

can't comment any further on that.

MS. FRANZETTI: Okay. Mr. Ettinger?

L.A. REPORTING (312) 419-9292

236

MR. ETTINGER: There's two things that

have been left hanging and I don't know

whether you're getting here. One is the 75th

percentile problem.

MS. FRANZETTI: Going to get there.

MR. ETTINGER: The other relates to

this same set of issues is whether -- maybe

I'll ask this now and maybe pursue it more.

Is part of the rationale behind setting these

period averages to protect against cold

shock?

MR. TWAIT: No.

MR. ETTINGER: Is there anything

then -- if we took away the period averages

here, would there be anything to protect

against cold shock in these systems?

MR. TWAIT: No.

MR. ETTINGER: Thank you.

HEARING OFFICER TIPSORD: Mr. Andes?

MR. ANDES: Is there any evidence that

cold shock syndrome is a phenomenon that

exists in these types of water bodies or

these types of species?

MR. TWAIT: We know that cold shock

L.A. REPORTING (312) 419-9292

237

does happen and we've seen it in perched

lakes where the power plant has shutdown and

they get a fish kill because the water got

too cold too fast.

I don't necessarily know that cold

shock is an issue for a stream like this.

MR. ANDES: Thank you.

MR. SULSKI: I would add to that we

don't know. It could be because of the

earlier testimony about what happens when we

have late August -- I mean, early August,

late July storm events that drop the

temperature. However, there's multiple

factors that are occurring there.

MS. FRANZETTI: Again, just so we're

clear, these standards don't prevent Midwest

Generation from shutting down a plant for a

few days, correct?

MR. TWAIT: Correct. There is nothing

in Illinois, there is nothing even in general

use water quality standards that prevent cold

shock.

MS. FRANZETTI: And would you agree

you really can't write a standard that

L.A. REPORTING (312) 419-9292

238

compels a discharger not to shut down?

MR. TWAIT: Well, it would be tough to

write a regulation. However, I do know that

when there are fish kills, when a plant shuts

down and they do have fish kills, there are

repercussions.

MR. ETTINGER: You can write a

standard to keep the temperature from there

being such a great differential between the

ambient temperature and the heated

temperature such that if you shut down a

plant rapidly there won't be cold shock?

MR. TWAIT: I suppose we could write

something like that. We -- I'll leave it at

that.

MR. ETTINGER: Thank you.

MS. FRANZETTI: Moving on, I think

number four you've answered. It was meant to

just identify where the Agency's approach to

the non-summer period thermal water quality

standards is the same as the approach

suggested by Mr. Yoder and where does it

differ.

And I think you've said it's just

L.A. REPORTING (312) 419-9292

239

basically the use of the Midwest Gen effluent

discharge temps in certain instances rather

than a, quote, unquote, true --

MR. TWAIT: Midwest Gen?

MS. FRANZETTI: I'm sorry. Thank you,

Mr. Twait. The Water Reclamation District's

effluent temperature -- it was wishful

thinking on my part -- instead of a true

background ambient station?

MR. TWAIT: There are more differences

than that.

MS. FRANZETTI: For the -- again, for

the non-summer period?

MR. TWAIT: Yes.

MS. FRANZETTI: Okay. Go ahead then

if there are.

MR. TWAIT: The MBI report suggests

using a daily maximum based on background

temperature using a statistical method and

they suggested 98th percentile. And once

again, that would be for the daily maximum.

And when you choose a limit based

on the 98th percentile, you're automatically

choosing a 2 percent exceedance rate. The

L.A. REPORTING (312) 419-9292

240

Agency decided not to go with that statistic

and instead used the summer maximum and

applied that year round.

The other difference is the MBI

report suggested using a geometrical mean of

the background temperature as a period

average and the Agency used a 75th percentile

for the period average. And the agency used

a different ambient site for the, quote,

unquote, background, including the use of the

MWRD facilities.

MS. FRANZETTI: Okay. Why did the

Agency decide to use 75th percentile rather

than the geometric mean?

MR. TWAIT: Part of that was based on

my participation in the ORSANCO work group.

They were looking at -- they were looking to

use the geometrical mean also based on Chris

Yoder's report. And they started looking at

it year by year and seeing the rate of

exceedances and decided that the exceedance

amount was --

MS. FRANZETTI: High.

MR. TWAIT: -- was high or

L.A. REPORTING (312) 419-9292

241

unacceptable. I don't know that I'd say it's

high, but there was periodic exceedances,

and I'm going to say every year based upon

all the period averages, so they decided to

use something different.

And at one time they were using

the 75th percentile, although I think they

ended up using something different than that.

MS. FRANZETTI: Okay. So I think also

basically what you're saying is ORSANCO

decided like the Agency not to follow Yoder's

recommendation of the geometric mean?

MR. TWAIT: Yes.

MS. FRANZETTI: With respect to the

Agency's decision to use the summer maximum

applied throughout the year as the daily max

rather than the 98 percent, was the reason

there because the 98 percent fills in and

2 percent of the time everybody is going to

exceed it?

MR. TWAIT: That was -- yes.

MS. FRANZETTI: Any other reason? Not

staying there is one, I just want to make

sure we understand the reason for the

L.A. REPORTING (312) 419-9292

242

decision.

MR. TWAIT: I think that was the only

reason. And we looked at using some

different statistical method, but we decided

instead to just take the summer maximum

throughout the year.

MS. FRANZETTI: Actually, how did you

come up with that alternative of using the

summer max throughout the year? I mean, is

that -- had another group like ORSANCO done

that?

MR. TWAIT: No. That was basically

Toby's idea.

MS. FRANZETTI: Sure, let's blame him,

he's gone.

MR. TWAIT: Yeah, he's not here, I'm

going to blame him. I had suggested using --

let me see if I can find it. I had suggested

using the 75th percentile plus 1.5 times the

inner cortile range or the 75th percentile

plus 2.5 times the inner cortile range, and

those are all statistical values, the inner

cortile range. I believe it's called

nonparametric.

L.A. REPORTING (312) 419-9292

243

And we were noticing some

exceedances anyway from that data and Toby

just -- we talked to Chris and I don't know

that Chris would agree but we decided that

the period average would take care of the

gametogenesis in the reproduction

introduction and so we decided to go with the

daily maximum throughout the year.

MS. FRANZETTI: Moving on to question

five, on Page 83 of the Statement of Reasons

and Page 13 of the Twait pre-filed testimony

it is stated that, quote, the monitoring

location at Route 83 on Chicago Sanitary and

Ship Canal was used at the, quote, background

location because it was not directly

influenced by thermal sources such as cooling

water or Lake Michigan and was believed to be

representative of, quote, background

temperatures, end quote.

Explain how the Agency defines

background as used in this quotation and as

applied to the Chicago Sanitary and Ship

Canal and Lower Des Plaines?

MR. TWAIT: This system does not have

L.A. REPORTING (312) 419-9292

244

any, quote, unquote, background temperatures.

Some areas are influenced by Lake Michigan

and would have cool waters, some areas are

influenced by thermal sources and some areas

are influenced by the district's discharge.

The Agency tried to choose a

non-summer thermal criteria that was

reasonable and we ended up choosing the Route

83 monitoring location on the Chicago

Sanitary and Ship Canal.

MS. FRANZETTI: Okay.

MS. WILLIAMS: A related follow-up at

this point. Was that different from the

background station Mr. Yoder suggested?

MR. TWAIT: Yes. Chris Yoder's

suggested background station was the Route 83

monitoring location on the Cal Sag Channel.

MS. WILLIAMS: And can you explain

what the difference would be between those

two?

MR. TWAIT: The Agency felt that that

station was much more influenced by the lake

water and it was much cooler than the station

that we chose.

L.A. REPORTING (312) 419-9292

245

MS. WILLIAMS: Thank you. I see Route

83 and I just assumed they're the same thing,

so I thought it would help to clarify that

there's two Route 83 stations.

MS. FRANZETTI: Thank you, Counsel.

Moving on to number six. On Page 13 of the

Twait pre-filed testimony it is stated that,

quote, because the source water of the CAWS

is composed of the MWRDGC wastewater

treatment plant effluence, the temperatures

of these waters can be expected to exceed

other measures of background or ambient

temperature at certain times of the year.

Consequently, the Agency decided to use the

effluent temperature from the MWRDGC's north

side, Calumet and Stickney facility as the

background temperature instead of using

temperatures at the Route 83 Chicago Sanitary

and Ship Canal station during periods of the

non-summer months when the effluent

temperature was higher than the background

temperature. These periods were January,

February, October 1 to 15, November and

December, see also Statement of Reasons at

L.A. REPORTING (312) 419-9292

246

Page 83.

I think we've covered Subpart A,

what's the purpose of background

temperatures. And I think just based on your

last answer, do you agree that wastewater

treatment plants effluent really isn't

accurately considered background temperature

for a waterway in the common understanding of

the term background temperature.

MR. TWAIT: For normal waterways, I

would tend to agree. But in this case, since

the majority of the flow is from the

district, we thought that that was a -- we

thought it was appropriate to use it as a

background temperature.

MS. FRANZETTI: Moving on to C. As

stated at Page 13 of the Twait pre-filed

testimony, the use of the MWRDGC effluent

temperature data as background constituted an

alteration to the recommendations in Yoder's

temperature report by the Illinois EPA.

Is it correct that the reason this

alteration was made is as stated at Page 14

of Twait's pre-filed testimony, namely that

L.A. REPORTING (312) 419-9292

247

using Yoder's recommendations for how to

derive the thermal water quality standards

would have resulted in standards that were

lower than the temperature of the district's

effluence and thus, quote, would have

required installation of cooling towers or

other treatment technology to reduce the

temperature of these effluents, these

effluents being the district's effluent?

MR. TWAIT: I know that's my

statement.

MS. FRANZETTI: Well, Mr. Twait, I

recall earlier I think you did mention that

the district commented --

MR. TWAIT: Yes, they did.

MS. FRANZETTI: -- on a prior proposed

set of thermal standards which did use the

Route 83 station, and I can't recall whether

it was the ship canal.

MR. TWAIT: It was the ship canal.

MS. FRANZETTI: Wasn't there a comment

that if you proceed with this approach, we're

going to have to cool the effluent from our

plants?

L.A. REPORTING (312) 419-9292

248

MR. TWAIT: Well, when we talked to

Mr. Yoder and asked him how he would proceed,

he suggested that we look at giving MWRDGC a

mixing zone. And our water quality standards

would not be written in such a way to give

them a mixing zone for the thermal water

quality standards. That's not how we write

water quality standards.

MS. FRANZETTI: Well, Mr. Twait, given

that they dominate the waterway at many times

of year, right?

MR. TWAIT: Yes.

MS. FRANZETTI: Well, how could you

give them a mixing zone? Wouldn't that be

that they're basically -- you'd have to give

them the whole water column?

MR. TWAIT: For the north side and

Calumet facilities, yeah, that would be

correct.

MS. FRANZETTI: As you said, our

mixing zone regs have a requirements for

things like a zone of passage, correct?

MR. TWAIT: Correct.

MS. FRANZETTI: And that would have

L.A. REPORTING (312) 419-9292

249

violated that, right?

MR. TWAIT: Yes. But I don't know

that they would have had any particular

problem at those two facilities. I'm not

sure but, yes, that's a correct statement

that they mentioned that they were the

background and that they would have trouble

meeting the water quality standards and their

discharge.

HEARING OFFICER TIPSORD: Mr. Andes

has a follow-up.

MR. ANDES: Mr. Twait, the concept of

in an effluent dominated water body, using

the characteristics of the effluent as

background is not a new concept, right?

MR. TWAIT: For which part of -- I

don't quite understand the question.

MS. WILLIAMS: Is it specific to

thermal that you're asking the question?

MR. ANDES: I was speaking more

generally, but if you want to address

thermal, that's fine.

What I'm trying to ask really is

was the primary basis for making this

L.A. REPORTING (312) 419-9292

250

decision that, as you stated earlier, the

Agency felt it was appropriate to use the

temperature of the effluence because it

dominates the water body and, therefore, was

appropriate to use that as background; is

that right?

MR. TWAIT: Yes.

MR. ANDES: So the Agency felt that

that particular way of dealing with it was

appropriate from a regulatory perspective?

MR. TWAIT: Yes.

MR. ANDES: So it wasn't the Agency's

intent to bail out MWRD by making this

treatment, rather it felt this is an

appropriate regulatory mechanism?

MR. TWAIT: We did think it was an

appropriate mechanism.

MR. ANDES: Thank you.

MS. FRANZETTI: That also bailed out

the MWRDC, right?

MR. TWAIT: I guess it would have.

MS. FRANZETTI: Moving on to D, is it

correct to state that the alteration to the

Yoder approach to deriving thermal water

L.A. REPORTING (312) 419-9292

251

quality standards resulted in an

accommodation to the MWRDGC so that it would

not incur the economic costs of having to

comply with the non-summer thermal water

quality standards?

MR. TWAIT: The Agency believes that

that's an appropriate approach.

MS. FRANZETTI: Did the Agency perform

any economic analysis with respect to the

MWRGDC?

MR. TWAIT: No.

MS. FRANZETTI: With respect to E,

does the Agency have any underlying rationale

for the decision to set the thermal water

quality standards based on the goal of

avoiding cooling costs for a particular

discharger?

MR. ANDES: I object to the

characterization. That's the goal of the

rule.

HEARING OFFICER TIPSORD: Could you

rephrase?

MS. FRANZETTI: Well, is it fair to

alter your proposed thermal standards, as you

L.A. REPORTING (312) 419-9292

252

did, so as not to compel one discharger to

install supplemental cooling while forcing

other dischargers to do so?

MR. ANDES: I'm going to object again.

That's saying it was done so as to avoid

those costs.

MS. FRANZETTI: Well, the testimony

will speak for itself as well as the

pre-filed written testimony.

MR. ETTINGER: Is it really -- I know

it's rhetorically fun, but does it really

advance us to ask the witness to answer what

is fair at this point? I guess we can all

make judgments on that.

HEARING OFFICER TIPSORD: I guess I

understand the objections, but I also

understand where Ms. Franzetti is going in

looking for some economics here as to why

economically you didn't perform an economic

analysis I'm assuming before you decided this

was a more appropriate method, correct?

MR. TWAIT: Correct.

HEARING OFFICER TIPSORD: But you

didn't perform an economic analysis to make

L.A. REPORTING (312) 419-9292

253

that determination?

MR. TWAIT: We did not.

HEARING OFFICER TIPSORD: But aren't

you concerned that on the one hand this

decision has meant that, economically,

certain dischargers will not have to perform

functions that other dischargers are going to

in the same rulemaking? I mean, is there --

there does seem to be a disparity there and

I'm wondering if you can explain or talk to

me, explain on the record why that would be.

Why on the one hand you did it one way, but

not on the other? Why you're not giving the

break to all dischargers instead of just --

and perhaps break is not the right word.

Remember, these are just to

enhance the record. This does not mean any

predisposition on the part of the Board. I'm

trying to enhance the record here and get the

explanation of what seems to be a disparity.

MS. WILLHITE: I think I'm going to

take that one. I think the main basis of

this decision was the fact that the flow of

this water system comes from the district's

L.A. REPORTING (312) 419-9292

254

effluence. As you've noted effluent

dominated, I think that's the main rationale.

And we acknowledge that it does

have this result of differential impact. I

think that's often the case when there is a

standard setting or permit limits put in

place there can be disparities between

requirements on dischargers.

But my understanding of the main

rationale is focused on that -- for the

system we're talking about, the effluent

forms the waterway.

MS. FRANZETTI: Mr. Dimond?

MR. DIMOND: Ms. Willhite, if the MWRD

gets a break because --

MR. ANDES: I'll object to that

characterization.

MR. DIMOND: If the MWRD doesn't have

to install cooling systems because their

discharge is effluent, why shouldn't all the

other dischargers who discharge effluent get

the same consideration? The rationale could

apply to any discharger, but you've decided

selectively only to apply it to one

L.A. REPORTING (312) 419-9292

255

discharger.

MS. WILLHITE: Well, that may be your

perception of it, but that wasn't the

rationale.

MR. FORT: Well, just to follow this

up, why make a distinction even on things

like the nitrification facility, which my

client, Citgo, operates in order to meet the

ammonia requirements? So it has very similar

technology even to what the district does,

but because of the mixing zone rule being the

way it is, we are affected adversely by this

decision as it plays out.

MS. WILLHITE: I'm struggling on the

applicability here of the analogy.

MR. FORT: We have a nitrification

facility that we have to heat, particularly

in the winter, in order to make sure the bugs

grow and do their job, same technology, same

kind of treatment, not exactly the same, but

same principles that the district has.

The standard as you proposed it is

going to affect us mostly because of the

upstream temperature, not our own

L.A. REPORTING (312) 419-9292

256

temperature.

MS. WILLIAMS: Can you explain how?

MR. FORT: There's no -- there will be

no mixing zone, so what's the rationale on

that technology basis to make a distinction

one from the other?

MS. WILLHITE: I guess it goes back to

my original comment that -- at least my

understanding, and I haven't studied it

carefully, is that in your portion of the

river there is other flow coming besides your

own, you're not forming the waterway as is

the case with the district.

MR. ETTINGER: I guess we're all

seeing the slippery slope that happens when

you cut deals with particular dischargers,

but in this case I would ask to --

MS. WILLHITE: Excuse me?

HEARING OFFICER TIPSORD: Objection

noted.

MR. ETTINGER: But in this case is

there any reason to believe that there will

be a biological impact from using the

Metropolitan Water Reclamation District's

L.A. REPORTING (312) 419-9292

257

discharge temperature as the background

temperature for the month that it's used?

MS. WILLHITE: I'll bump that to

another member of the team here.

MR. TWAIT: I can tell you what the

difference is in the background temperature.

MR. ETTINGER: I'm not asking about

the differences in the temperature. I'm

asking about the potential for effecting the

chemical or --

MR. TWAIT: I don't know the answer to

that.

MR. ETTINGER: -- the biological

integrity of the water by using the MWRD

discharge temperature in the Sanitary and

Ship Canal as opposed to what the Yoder

calculation would have been?

MR. TWAIT: The Agency does not know

whether there would be one or not. But if we

did know that there would be a difference,

then we would not have proposed it.

MR. ETTINGER: Thank you.

MS. FRANZETTI: Because the goal of

the proposed thermal water quality standards

L.A. REPORTING (312) 419-9292

258

is supposed to be to protect the aquatic

community that is there or is capable of

being there, correct?

MR. TWAIT: Yes.

MS. FRANZETTI: And so we don't know

if by using the district's effluent thermal

temperatures whether or not we're doing that;

is that -- that's what I think I understand

you to say?

MR. TWAIT: I think that's a fair

characterization.

MS. FRANZETTI: Moving to question

seven. On Page 83 of the Statement of

Reasons and at Page 14 of the Twait pre-filed

testimony it is stated that the Agency,

quote, used the 75th percentile as the

monthly average to ensure that the seasonal

norms are preserved in the system.

Explain -- I think you've done

some of this, but I think we want to get into

the issue of why the 75th percentile as the

monthly average ensures that the seasonal

norms are preserved.

MR. TWAIT: If you were to look at it

L.A. REPORTING (312) 419-9292

259

year by year to keep the seasonal norms,

you'd be looking at a 50th percentile, that

would give you exactly half. Half of the

data would be above that point and half the

data would be below that point.

So if we were to know in advance

what each year was, we could set it at the

50th percentile and that would be exactly the

temperature that the average would come out

to be. We chose the 75th percentile because

there's variation from year to year. I

noticed -- well, I'll stop there.

MS. FRANZETTI: Don't be volunteering

anything. Before I go further, just so we

have it in the record, what do we mean by the

75th percentile as used here?

MR. TWAIT: It is the number where

75 percent of the data points would fall

below that number and 25 percent would be

above that number.

MS. FRANZETTI: In a given year? I

mean, did you take a -- choose a year of the

district's data or was that over a longer

period?

L.A. REPORTING (312) 419-9292

260

MR. TWAIT: It was over a longer

period. And we asked the district to provide

the same data set that Chris Yoder used and

that was the data collected from 1998 to

2004.

MS. FRANZETTI: Okay. So it's the

75th percentile across all those

approximately six years of data?

MR. TWAIT: Yes.

MS. FRANZETTI: Okay.

MR. SAFLEY: May I follow up?

HEARING OFFICER TIPSORD: Mr. Twait,

keeping in mind that there can be yearly

variations, would that mean that 25 percent

of the time one would expect that the

temperatures downstream of the MWRD

facilities are going to be higher than the

standards you're proposing?

MR. TWAIT: No.

MR. SAFLEY: And explain to me why

that's not the case.

MR. TWAIT: We took the

75th percentile of all the data and we're

using that as a period average. So

L.A. REPORTING (312) 419-9292

261

25 percent of the values will be above the

water quality standard -- or 25 percent of

the values will theoretically be above the

standard and 75 percent will be below. And

so when you take an average, it may not

necessarily result in a violation.

MR. SAFLEY: Okay. And I have two

follow-up questions after that. When you say

25 percent will be above the standard, you

mean the period average standard or you mean

the maximum standard, the same all year?

MR. TWAIT: The way the

75th percentile works is 25 percent of the

individual values were above what we've

chosen as a numeric value for our period

average.

MR. SAFLEY: For the period average.

So 25 percent were not above the maximum

temperature number?

MR. TWAIT: Correct.

MR. SAFLEY: Okay. So if I'm looking

at Chicago Area Waterway System, you know,

Brandon Pool Aquatic Life Use B Water

January 1 through 31, the period average is

L.A. REPORTING (312) 419-9292

262

54.3 degrees; what you're saying is the data

that you looked at, you looked at each

January for six years --

MR. TWAIT: It's actually seven years,

but, yes.

MR. SAFLEY: All right. Each January

for seven years and 25 percent of the time

the numbers were above that 54.3 degrees.

MR. TWAIT: Twenty-five percent of the

individual numbers were above that, yes.

MR. SAFLEY: Okay. Did the Agency

undertake any kind of analysis to run the

average numbers to find out how the averages

would play out and whether that

25 percent/75 percent split would result in

average numbers that were below this for the

period average?

MR. TWAIT: In Chris Yoder's report,

Exhibit 15, Appendix Table 2, he lists lots

of statistical values. He's got the month,

the period, the number of samples, the mean

of all those samples, a geometric mean of all

those samples, a median of those samples, a

single maximum occurrence, a maximum

L.A. REPORTING (312) 419-9292

263

occurrence that occurred twice, a maximum

occurrence that occurred three times. Then

he's got several different percentiles; the

98th, 95th, 90th, 75th percentile and 5th

percentile and then he's got some other

nonparametric values.

MR. SAFLEY: So if I wanted to try to

determine based on the data whether or not on

a period average basis the water -- the

effluent downstream of the MWRD facilities

would be above or below the period average, I

could at least, to some extent, get that out

of that Yoder Appendix Table 2?

MR. TWAIT: You could make the

comparison of the mean against the 75th -- or

against the proposal. That, of course,

doesn't tell you what happened each

individual year.

MR. SAFLEY: Okay. So the numbers --

and I found this appendix. These numbers --

the mean is for all seven years?

MR. TWAIT: Yes.

MR. SAFLEY: Okay. So I can certainly

say on an average basis over a seven-year

L.A. REPORTING (312) 419-9292

264

period, and I'm looking right now at the

entire month of January, it's a number of

49.6. And I don't know where this collection

point was, but that that is below the 54.3 in

the rule so just looking at that I would say

averaging over seven years it doesn't look

like for January the monthly average would be

above the standard that's proposed; is that

the right way to do that?

MR. TWAIT: Yes. With that limited

data set, yes.

MR. SAFLEY: Okay.

MR. TWAIT: Like I said, it doesn't

have -- the individual average could be

higher one year and lower the next year.

And, actually, it will be higher one year and

then lower the next year.

MR. SAFLEY: And are those individual

data sets by year in the Agency's submission

to the Board?

MR. TWAIT: I do not believe so.

MR. SAFLEY: Okay. My guess is

someone is going to say they're available on

MWRD's website, but...

L.A. REPORTING (312) 419-9292

265

MR. TWAIT: The data was from MWRD. I

don't know if it's on their website or not.

MR. SAFLEY: Is that something that we

could get in the record if that's what's

making up the numbers on this table?

MS. WILLIAMS: Yes. I mean, if it's

not in the record, we can put it in the

record.

MR. SAFLEY: And if it is in the

record, I realize that the record is so big

in this and it may be that I just don't

realize it.

MR. TWAIT: If I have the data, we'll

put it in the record. But if I don't have

the data, then we'll have to ask MWRD for the

data or at least a cite to their website.

MR. SAFLEY: And, clearly, Chris Yoder

had the data at some point; is that correct?

MR. TWAIT: Yes.

MR. SAFLEY: And the Agency provided

that data to him; is that correct?

MR. TWAIT: I believe that he went

right to the district for it.

MR. SAFLEY: Okay.

L.A. REPORTING (312) 419-9292

266

HEARING OFFICER TIPSORD: Attachment W

maybe, 2001-2006 effluent sampling result for

temperature at Water Reclamation District

plants?

MR. TWAIT: No. Well, that would have

just been the effluent data that we used for

setting background, not the actual sampling

sites.

If I do have that data, it will be

in a large database. And I think I have it

on a CD. What would be the best way to

provide that if I have it?

HEARING OFFICER TIPSORD: If you have

it, you can certainly provide it to the Board

on a CD. Does anyone object to receiving

that on a CD? And I'm assuming most of the

people here are on the service list so a CD

is fine.

MR. SAFLEY: Does the Agency have any

information right now on the statistical

likelihood that if you looked at an

individual year in a month or two-week time

period that there would be on an average

basis a violation of the Agency's proposed

L.A. REPORTING (312) 419-9292

267

standard?

MR. TWAIT: No. I don't believe we

made that analysis.

MR. SAFLEY: Okay. Does the Agency

consider there to be a statistical

probability that there would be a violation

in one of those time periods?

MR. TWAIT: For the particular -- no,

I don't.

MR. SAFLEY: Okay. Looking at this

Appendix Table 2, each month is broken up

into entire, early and late. Are you

aware -- is early always the first half of

the days of the month and late always the

second half of the days of the month? Would

that correspond with, for example, April 1

through 15 and 16 through 30 or do we know?

MW. TWAIT: I believe that Chris used

the same format for, like, the 1st through

the 15th and then the 16th through the end of

the month.

MR. SAFLEY: Okay.

HEARING OFFICER TIPSORD: And just to

be clear, Appendix Table 2 of Exhibit 15?

L.A. REPORTING (312) 419-9292

268

MR. TWAIT: Yes.

MR. SAFLEY: Those are all my

questions right now. Thank you.

MS. FRANZETTI: And I just have one

more question on it. I'm not understanding,

given the testimony we've had this afternoon

about the fact from the Agency's perspective

it's an effluent dominated stream so it's

reasonable to use the effluent of the

district as the background, why not use

100th percentile? Why are we doing

75 percent?

MR. TWAIT: The reason that we did not

use the 100th percentile is -- well, if we

had used the 100th percentile, that would be

the highest temperature ever measured in that

time period and then we would turn around and

set that as the average and we did not think

that was appropriate.

MS. FRANZETTI: Okay. But in using

the 75th, we could have issues of

noncompliance by the district's own effluent

on which the standard is based?

MR. TWAIT: Anything is possible.

L.A. REPORTING (312) 419-9292

269

MS. FRANZETTI: But statistically

isn't that --

MR. TWAIT: Statistically, if we were

looking at one year only and we chose the

75th percentile, then there would be no

chance of violating that number as a period

average.

But because we are looking at

eight years and taking the 75th percentile,

there could be a year that has high

temperatures.

MS. FRANZETTI: Okay.

MR. ETTINGER: Realistically, the

Metropolitan Water Reclamation District's

dischargers don't vary from all that much

from year to year, do they?

MR. TWAIT: I don't know how much they

vary from year to year. The data is included

as Attachment W.

MS. FRANZETTI: I just submit it

sounds like they do a bit since you didn't

want to use the 100th percentile because it

was too high.

MR. TWAIT: Well, using the

L.A. REPORTING (312) 419-9292

270

100th percentile value would -- if we went

out to the stream and found out that the

stream had gotten to say 88 degrees and that

was the highest that we had measured, that

would be the 100th percentile.

MS. FRANZETTI: In that year?

MR. TWAIT: And then we would take

that 88 degrees and say that's what the

period average has to be.

MS. FRANZETTI: When you take the

100 -- I guess you're saying one year.

Wouldn't you be looking over six or seven

years?

MR. TWAIT: If we took the data from

the seven years and had taken the

100th percentile, basically the

100th percentile is the highest value

recorded.

MS. FRANZETTI: Ever in the

seven years.

MR. TWAIT: Even in the seven years.

That's the highest value. That would be the

100th percentile.

MS. FRANZETTI: Okay. I think I was

L.A. REPORTING (312) 419-9292

271

misunderstanding. I thought you would take

the highest in each January and average them?

MR. TWAIT: Okay.

MS. FRANZETTI: No?

MR. TWAIT: Yes. If we took the

highest -- if we took the 100th percentile of

the January 1st through 31st data, first

through 31st, if we had taken that data and

the highest value was say 60 degrees, then we

would turn around and say that's the period

average that you have to meet.

And so then you could discharge

say -- or then to get that period average,

you could go as high as 70 degrees just as

long as you got it down to 50 degrees. And

that would be an increase in the background

temperature.

MS. FRANZETTI: Okay.

MR. TWAIT: We didn't feel that the

average should be set at the highest measured

temperature.

MS. FRANZETTI: And really then the

daily max temperature for January just

doesn't -- it's not at all connected to the

L.A. REPORTING (312) 419-9292

272

period average value, correct?

MR. TWAIT: Say that again, please?

MS. FRANZETTI: Well the -- the daily

maximum value, which is just the summer daily

max I thought carried across the whole year?

MR. TWAIT: Yes.

MS. FRANZETTI: It doesn't have any

relationship, it's not in any way based on

that period average?

MR. TWAIT: No.

MS. FRANZETTI: Okay. Question number

eight, were either the concepts of the use of

the Route 83 Chicago Sanitary and Ship Canal

sampling station or the use of the

75th percentile as the monthly average

presented and discussed within the various

UAA stakeholder group meetings?

MR. TWAIT: Only at the March 2007.

MS. FRANZETTI: That was the public

meeting, right?

MR. TWAIT: That was the public

meeting.

MS. FRANZETTI: Moving on to question

nine, has the Illinois EPA reviewed the

L.A. REPORTING (312) 419-9292

273

ambient water temperatures for the past few

years to determine what the ambient water

temperatures typically are in comparison to

the proposed thermal standards for those

dischargers who are located downstream of the

district's plants?

MS. WILLIAMS: Can you clarify what

you mean by "what the ambient"?

MS. FRANZETTI: What's the temperature

level that dischargers are going to be taking

in from the stream that is basically

dominated by the district's effluent? In

other words, that's setting the thermal level

in the stream for the downstream discharger?

You know, what do they start with

so to speak as the temperature of the intake

water versus what the proposed standard is?

Is it already higher so that they're actually

going to have to cool it before they add any

thermal inputs to it because it's above the

standards?

And I don't know the answer to

that. I don't know if the Agency has looked

at that.

L.A. REPORTING (312) 419-9292

274

MR. TWAIT: The station at Route 83

bridge is downstream of the Stickney

facility, which is also downstream of the

Fisk and Crawford facilities. It's

approximately 10 miles downstream of the

Stickney facility. Since we are proposing to

use a 75th percentile as a period average, we

believe there's some cushion there.

MS. FRANZETTI: I'm not sure I

followed that answer. I'm sorry. Actually,

my question isn't limited to the period

average. Scott, can you try and explain to

me what you just said? There's a sampling

station ten miles -- about ten miles

downstream from Stickney?

MR. TWAIT: Our background station

that we used for our background is from the

Route 83 bridge on the Chicago Sanitary and

Ship Canal. That bridge or that sampling

location is approximately ten miles

downstream from Stickney facility.

MS. FRANZETTI: Okay. But that is

that station wasn't what you for the most

part used to set the period average, I

L.A. REPORTING (312) 419-9292

275

thought? See, I'm not sure what you're

telling me.

MR. TWAIT: Yes. That's what we

used to -- that was the ambient station that

we had used in addition to the Stickney's --

or the district's effluent.

MS. FRANZETTI: But when the

district's effluent was --

MR. TWAIT: Could you ask your

question again, please?

HEARING OFFICER TIPSORD: If I may, I

think what he's answering is -- let me try

this. Mr. Twait, the Agency's background

level, the place you took the sampling to

develop the background level is downstream of

the district's discharge by ten miles,

correct?

MR. TWAIT: Correct.

HEARING OFFICER TIPSORD: So you do

have downstream data that is not just the

effluent of the district, correct?

MR. TWAIT: Correct.

MS. FRANZETTI: And that downstream

data is showing compliance with your proposed

L.A. REPORTING (312) 419-9292

276

standards?

MR. TWAIT: At that location because

we are using it as our background, yes.

MS. FRANZETTI: I see. I guess I

thought for the most part you were using the

district's thermal levels as the background

unless --

MR. TWAIT: We are using the

district's temperature -- we are using the

least stringent of the district's temperature

for this ambient station that's downstream of

the district.

MS. FRANZETTI: So for the most part,

the ambient station is cooler.

MR. TWAIT: In some periods of time

during the winter, the -- let me look at the

month specifically.

Of the periods of January,

February, October 1st through 15, November

and December the stream is cooler than the

district's effluent.

MS. FRANZETTI: Okay. That's what I

finally realized that's what you're saying.

MR. TWAIT: Yes.

L.A. REPORTING (312) 419-9292

277

MS. FRANZETTI: And that the other

times it's not?

MR. TWAIT: Correct.

MS. FRANZETTI: And so for a

downstream discharger, they could be using

water that is already above the water quality

standards?

MR. TWAIT: It depends on how far

downstream that you're talking about and

whether there are sources in between there.

MS. FRANZETTI: Fair enough.

MR. TWAIT: Because we've chosen the

75th percentile as the period average, --

that's creating some leeway in the proposal.

MS. FRANZETTI: I'm jumping down to

ten. Question ten, when the ambient

temperature of the waterway is at or near the

thermal quality standard, does this indicate

that the downstream dischargers will likely

need to cool the water withdrawn from the

waterway before discharging it back to the

waterway after any industrial use?

MR. TWAIT: If the water were warmer

than the water quality standard and they were

L.A. REPORTING (312) 419-9292

278

adding heat to it, they would need to provide

cooling.

HEARING OFFICER TIPSORD: What if

they're not adding heat?

MS. FRANZETTI: Yeah, what if they're

not adding heat because I'm not sure any of

us focused on that.

MR. TWAIT: I believe that there are

some NPDS, national pollutant discharge

elimination system rules about taking water

from the same source as you're discharging to

and as long as you're not increasing the

parameter that you're concerned with, it

doesn't put it back into your permit. So

if --

MS. FRANZETTI: If the discharger can

make that showing that they've added no heat

to the water, you think there is provisions

of the NPDS regulations that would give them

basically a pass?

MR. TWAIT: I believe so.

MS. FRANZETTI: Would you agree --

actually, a follow-up. Would you agree that

it's generally true in the Chicago Sanitary

L.A. REPORTING (312) 419-9292

279

and Ship Canal and down to the Upper Dresden

Pool that the water will tend to warm as it

moves downstream regardless of any heat input

from dischargers?

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

the answer to that.

MR. SULSKI: I wouldn't agree with

that. It would depend on the time of the

year, you know, if it's summer all the sudden

you get a warm spell, it's possible. But I

wouldn't agree with that in general, no.

MS. FRANZETTI: Okay. But in summer

that can happen?

MR. SULSKI: I wouldn't know either

because it's a narrow system, there's a

limited surface area for heat transfer.

MS. FRANZETTI: Just don't know?

MR. SULSKI: I just don't know.

MS. FRANZETTI: Okay. Question number

11, impervious surfaces, e.g., streets,

parking lots, rooftops greatly increase the

temperature of surface water runoff during

summer periods. Is this contribution being

considered as part of, quote, unquote,

L.A. REPORTING (312) 419-9292

280

background?

MS. WILLIAMS: Is there a citation or

anything to that?

MS. FRANZETTI: No. But we'll back it

up with expert testimony on that.

MR. SULSKI: I'd like to respond to

it. This is the first I've ever heard of it

or experienced it. Generally, it's the

opposite, the rain cools those surfaces by

the time it hits the waterway, it's cooling

the waterway.

MS. FRANZETTI: Okay.

MR. SULSKI: The rain is cold.

MS. FRANZETTI: These surfaces are

very hot. That the rain comes in contact

with before it runs off into the river, just

so you understand what the question is

saying.

MR. SULSKI: I understand the

question. In my experience -- we're talking

about perhaps separate sewer areas. Even in

separate sewer areas the rain cools the

surfaces quite rapidly and ends up

discharging at a cooler temperature in the

L.A. REPORTING (312) 419-9292

281

warmer periods of the year. In a combined

sewer area, it hits the sewer so it really

has no bearing.

MS. FRANZETTI: Okay. Moving on to D.

MR. TWAIT: I'd like to provide an

answer, also. We have taken into account

only to the effect that it would have an

effect on the sampling station that we used.

So, I mean, if you're saying that

it's warming up the water during the

summer -- during the non-summer periods and

it affects the Route 83 bridge that we've

chosen as our sampling station, then it has

been taken into account because we're using

that station as a background.

MS. FRANZETTI: Okay. Moving on to D.

HEARING OFFICER TIPSORD: Let's call

it a day. The next question is multi-point

so let's go ahead and go off the record.

(Which were all the

proceedings had in the

above-entitled cause

on this date.)

L.A. REPORTING (312) 419-9292

282

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF WILL )

I, Tamara Manganiello, RPR, do hereby

5 certify that I reported in shorthand the proceedings

6 held in the foregoing cause, and that the foregoing

7 is a true, complete and correct transcript of the

8 proceedings as appears from my stenographic notes so

9 taken and transcribed under my personal direction.

______________________________

TAMARA MANGANIELLO, RPR

License No. 084-004560

SUBSCRIBED AND SWORN TO

17 before me this ____ day

of _______, A.D., 2008.

_______________________

20 Notary Public

L.A. REPORTING (312) 419-9292