1
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.
)
6
7
8
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.
14
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
2
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
7
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:
8
Ms. Stefanie Diers
9 Ms. Deborah Williams
Mr. Robert Sulski
10 Mr. Scott Twait
Mr. Roy Smogor
11 Mr. Howard Essig
Ms. Marcia Willhite
12
13 ENVIRONMENTAL LAW AND POLICY CENTER,
33 East Wacker Drive
14 Suite 1300
Chicago, Illinois 60601
15 (312) 795-3707
BY: MR. ALBERT ETTINGER
16
Appeared on behalf of ELPC, Prairie Rivers
17
Network, and Sierra Club,
18
19 FRANZETTI LAW FIRM P.C.
10 South LaSalle Street
20 Suite 3600
Chicago, IL 60603
21 (312) 251-5590
BY: MS. SUSAN FRANZETTI
22
23
Appeared on behalf of the Midwest
Generation, L.L.C.,
24
L.A. REPORTING (312) 419-9292
3
1 HODGE DWYER AND ZEMAN
3150 Roland Avenue
2 Post Office Box 5776
Springfield, IL 62705
3 (217) 523-4900
BY: MR. THOMAS SAFLEY
4
Appeared on behalf of Exxon Mobil, and The
5
Illinois Environmental Regulatory Group,
6
THE CHICAGO LEGAL CLINIC
7 2938 East 91st Street
Chicago, Illinois 60617
8 (773) 731-1762
BY: MR. KEITH HARLEY
9
Appeared on behalf of the Southeast
10
Environmental Task Force,
11
MAYER BROWN, LLP,
12 71 South Wacker Drive
Chicago, IL 60606
13 312) 782-0600
BY: MR. TOM DIMOND
14
Appeared on behalf of Stepan and Company.
15
16
17
18
19
20
21
22
23
24
L.A. REPORTING (312) 419-9292
4
1
HEARING OFFICER TIPSORD: Good
2
morning. My name is Marie Tipsord and I've
3
been appointed by the Board to serve as
4
hearing officer in these proceedings. We all
5
know what we're here for, it's R08-9. This
6
is day two of our hearings. We will continue
7
again tomorrow and we will start again
8
tomorrow morning at 9:00 o'clock and go until
9
about 5:00 o'clock tomorrow again and see
10
where we are.
11
Also as a reminder, we will talk
12
tomorrow, unless we go really fast over the
13
next two days, I don't know that we're going
14
to be done with the Agency by the end of the
15
day tomorrow. That being the case, we'll
16
keep that in mind when we look at potential
17
other dates for hearings.
18
We're starting today with Midwest
19
Generation. I remind you all that anyone may
20
ask a question, you need not wait until your
21
turn to ask questions. Please raise your
22
hand, wait for me to acknowledge you,
23
identify yourself for the record and whom you
24
represent and speak one at a time. If you
L.A. REPORTING (312) 419-9292
5
1
speak over each other, the court reporter
2
will not be able to get everything on the
3
record.
4
Also note that any questions asked
5
by a Board member or staff are intended to
6
help build a complete record for the Board's
7
decision and not to express any preconceived
8
notion or bias. Did you have anything today?
9
I skipped over you yesterday I know.
10
DR. GIRARD: That's all right. Just
11
good morning. Thanks for all your time and
12
effort, we appreciate it. We're going to
13
have a great record. Let's get to work.
14
Thanks.
15
HEARING OFFICER TIPSORD: With that
16
we'll start with Ms. Franzetti and Midwest
17
Generation.
18
MS. FRANZETTI: Thank you. We left
19
off with F, aquatic life use designations
20
proposed regulatory language in my pre-filed
21
questions. Question under number one, I
22
think this has been answered to a certain
23
extent so I'm going to change from the
24
pre-filed question a bit to recognize the
L.A. REPORTING (312) 419-9292
6
1
prior testimony that was given yesterday on
2
some of these issues.
3
With respect to question 1A, I
4
know yesterday there was testimony I think
5
from Mr. Smogor about the relative
6
differences that are meant to be conveyed in
7
the respective aquatic life use designation
8
proposed rules. Do you recall what I'm
9
talking about, Mr. Smogor?
10
MR. SMOGOR: Yes.
11
MS. FRANZETTI: With respect, though,
12
within each of the proposed use designation
13
rules -- and I'm talking about for the record
14
303.230, 235 and 237, is the use of the terms
15
tolerant, intolerant and intermediately
16
tolerant, is that, though, intended to convey
17
the differences between the proposed use
18
designations within those rules?
19
MR. SMOGOR: It's intended to
20
convey one of the primary manifestations of
21
the differences in biological conditions that
22
are reflected by each of those proposed uses.
23
Does that help?
24
MS. FRANZETTI: I think so. So those
L.A. REPORTING (312) 419-9292
7
1
words are -- they're intended to define what
2
the attainable biological condition is of
3
rivers or water segments that are placed
4
within that use designation?
5
MR. SMOGOR: Yes. It was our intent
6
to provide in maybe more concrete terms but
7
still relative degrees of what we meant by a
8
balanced versus and imbalanced versus an even
9
more imbalanced biological condition.
10
In a primary manifestation of
11
moving from a balanced to a less balanced to
12
an even more imbalanced system, one of the
13
primary patterns that we see out there as
14
human impacts increase is this change from
15
the presence of intolerant species to a loss
16
of intolerant species to greater and greater
17
predominance of the most tolerant types.
18
MS. FRANZETTI: I think B and C have
19
been covered. D, the language of the
20
proposed use designations uses the term
21
predominated. What's the intended meaning of
22
that term predominated?
23
MR. SMOGOR: That means dominant in
24
number.
L.A. REPORTING (312) 419-9292
8
1
MS. FRANZETTI: And is something
2
dominant in number if it at least exceeds
3
50 percent?
4
MR. SMOGOR: If there's two -- only
5
two types, that would be true. But if you
6
have more than two types, it's whatever is
7
the most. If you count the number of the
8
different types, it's just whatever one has
9
the most number of individuals.
10
MS. FRANZETTI: Now I know yesterday
11
you were telling us that the Agency doesn't
12
want to define specific species -- I
13
understand that -- doesn't really think they
14
want to reference a fish guild or guide that
15
would give us lists of what's included in
16
tolerant, intermediately tolerant and
17
intolerant, but in order for the Agency to
18
make the determinations in these proposed
19
rules as to what type was predominant for a
20
given use and, therefore, to place the river
21
segments appropriately based on the fish
22
populations, what fish data did you rely on
23
to do that?
24
And if we want to check your
L.A. REPORTING (312) 419-9292
9
1
judgments here, what data would we look at to
2
take a look and see what is predominant, what
3
types of fish are predominant in these
4
particular water bodies listed under each of
5
the proposed uses?
6
MR. SMOGOR: Would you excuse me for a
7
second?
8
MS. FRANZETTI: Sure. Absolutely.
9
(Whereupon, a discussion
10
was had off the record.)
11
MR. SMOGOR: Again, there was not the
12
intent to put species of fish into particular
13
boxes in terms of their relative intolerance
14
or relative tolerance. There was not the
15
intent to do specific counts of how many fish
16
are in each of those boxes.
17
The intent was to convey a more
18
concrete idea of what would be a balanced
19
versus a less balanced biological condition.
20
So, in other words, I don't know
21
if this would be -- another way to think
22
about it is if we had not tried to explain
23
what balanced and imbalanced meant in terms
24
of this primary way of judging that -- and
L.A. REPORTING (312) 419-9292
10
1
it's not the only way of judging if something
2
is balanced or imbalanced. If we had just
3
pretty much said balanced populations of
4
aquatic life, that would have been -- that's
5
pretty much what we intend. We didn't really
6
intend much more than that.
7
We were trying to give a picture
8
of what that means in terms of the structure
9
in common terms that people can understand.
10
People generally understand when you talk
11
about there's a range of animals that occupy
12
any location out there, that some are more
13
tolerant to human impacts and some are less
14
tolerant.
15
And this concept of having more
16
sensitive forms and less sensitive forms out
17
there we thought was one maybe more concrete
18
way of getting to this concept of balance
19
versus imbalance. And that was the only
20
intent of it.
21
MS. FRANZETTI: Okay. Let me try and
22
convey my issue here. Let's take this by way
23
of example, that under 3.3.235, which is the
24
proposed rule on the CAWS and Brandon Pool
L.A. REPORTING (312) 419-9292
11
1
Aquatic Life Use B Waters Designation, for
2
example, the Chicago Sanitary and Ship Canal
3
has been placed in that proposed aquatic life
4
use designation, if I want to evaluate
5
whether or not I agree with you that the CSSC
6
should be in Use B versus Use A, that's what
7
I'm trying to understand is if I think that's
8
the wrong designation for the CSSC, not that
9
I'm saying it is, but what do I look at to
10
kind of review what you looked at in making
11
the judgment that for aquatic life use, CSSC
12
should be in an Aquatic Life Use B Waters.
13
And I thought one of the things I
14
should look at would be fish data to see
15
whether or not I agreed that the CSSC is
16
capable of maintaining aquatic life
17
populations predominated by individuals of
18
tolerant types.
19
MR. SMOGOR: Now when we're talking
20
about if we have a water and we want to know
21
what is the potential -- the biological
22
potential of a particular water to put it
23
either in the CAWS A Box or the CAWS B Box in
24
terms of its biological potential, now we're
L.A. REPORTING (312) 419-9292
12
1
much less interested in the existing
2
biological condition.
3
To do that, we're focused more on
4
the template -- the physical template and
5
saying what can this water reasonably attain
6
in terms of its biological condition. So if
7
you're looking at a particular water and you
8
think that it should be in Box A instead of
9
B, then we're not really focusing much on the
10
aquatic life that's present.
11
Again, we're judging what can be
12
its attainable biological condition and we're
13
primarily focusing a lot on the physical
14
template. So that's a slightly different
15
situation than saying I have a water, what is
16
its current biological status. So to me
17
those are kind of two different questions.
18
MS. FRANZETTI: So if I understand
19
correctly, in deriving these aquatic life use
20
designations and the narrative explanation of
21
them that is contained in the proposed rules,
22
you were not really looking at the fish
23
population that exists there today, that was
24
really not a very significant piece of
L.A. REPORTING (312) 419-9292
13
1
information for determining what waters go in
2
that use designation, correct?
3
MR. SMOGOR: It was informative, it
4
provides context, but it was not the primary
5
driver.
6
MS. FRANZETTI: And the primary driver
7
was more the physical conditions of -- well,
8
the physical conditions that you believe
9
match the proposed use designation, what is
10
attainable based on those physical
11
conditions?
12
MR. SMOGOR: Based on what we believe
13
are the irreversible conditions out there,
14
the -- I call it a template. Maybe that's
15
not an appropriate word, but maybe that's
16
helpful to some. Based on that, yes, that
17
helped us derive the attainable biological
18
condition.
19
MR. SULSKI: Can I add a
20
clarification, please? That's not to dismiss
21
the biological data. The biological data is
22
very important if you have it to look at.
23
You don't need it, but if you have it, it's
24
very important because it answers several
L.A. REPORTING (312) 419-9292
14
1
questions for you.
2
When you compare the biological
3
data to what's expected out of the habitat
4
and if the biological data shows that the
5
community -- the aquatic life community is
6
not meeting what the habitat suggests, you've
7
got a problem. That's what an assessment
8
does. Then you start to look for sources of
9
the problem. That's what the UAAs did.
10
However, if the biological
11
community, the IBIs, whatever you're looking
12
at exceed what the habitat suggests, you've
13
got something else going on out there that is
14
encouraging a more balanced community and
15
that raises your bar. That's an existing
16
use. You have -- despite what the habitat
17
says, if that's a consistent existing use,
18
you have to protect for it.
19
MS. FRANZETTI: Okay. And is the use
20
then of the terminology like tolerant,
21
intolerant meant to reflect an organism's
22
tolerance to certain -- or suitability to
23
certain habitat conditions as well as
24
conventional pollutants?
L.A. REPORTING (312) 419-9292
15
1
MR. SMOGOR: The way we use those
2
terms is very general. It's tolerance to
3
human impacts of all types, so there's no
4
specificity intended. And human impacts of
5
all types would include physical impacts, as
6
well.
7
MS. FRANZETTI: So does the way you're
8
using it differ a bit from the way some of
9
the reference materials tend to use those
10
terms in that I believe as they are used in
11
fish reference materials, it doesn't take
12
into account whether or not a species is
13
tolerant or intolerant to things such as
14
toxics, heavy metals for example?
15
MR. SMOGOR: I think in the reference
16
materials that I'm familiar with, and those
17
are the reference materials primarily
18
concerned with deriving biological indicators
19
such as IBIs, indexes of bio-integrity, those
20
types of classifications are fairly broad so
21
they would include multiple types of human
22
impact.
23
Now they're not always absolutely
24
correct when you're looking at only one type
L.A. REPORTING (312) 419-9292
16
1
of impact. It's kind of -- for instance,
2
there are fish species that in general could
3
be considered tolerant of most types of human
4
impact, both physical and chemical.
5
But there may be -- even those
6
species may be classified as say broadly
7
tolerant. There may be a chemical out there
8
that they're particularly sensitive to. So
9
there's not much specificity in these broader
10
classifications and they are not always 100
11
percent accurate either because they are so
12
broad.
13
MS. FRANZETTI: Okay. Moving on to E,
14
and this may reflect my lack of knowledge,
15
but what is the intended meaning of the term
16
individuals. It would seem to be relating to
17
fish at least, but can you just explain how
18
that term is used?
19
MR. SMOGOR: Each organism, whether
20
you're talking about bugs, whether you're
21
talking about fish. An individual is one
22
organism.
23
MS. FRANZETTI: And moving on to F, in
24
the proposed use designation for the Upper
L.A. REPORTING (312) 419-9292
17
1
Dresden Island Pool in Section 303.237, the
2
phrase is used "capable of maintaining" as in
3
these waters are capable -- well, actually,
4
the "of" I think I dropped, but these waters
5
are capable of maintaining aquatic life
6
populations consisting of individuals of
7
tolerant, intermediately tolerant and
8
intolerant types. What's the intended
9
meaning of the term "capable of maintaining"
10
as used in that proposed rule?
11
HEARING OFFICER TIPSORD: Excuse me,
12
Ms. Franzetti, could you specify again the
13
section you're talking about? I apologize.
14
MS. FRANZETTI: No problem. 303.237.
15
HEARING OFFICER TIPSORD: Thank you.
16
MR. SMOGOR: Having the capacity to
17
support.
18
MS. FRANZETTI: Moving on to number
19
two, do these types of aquatic life also have
20
to be capable of adapting to the physical
21
conditions that follow in the language of
22
each use designation?
23
And let me note stay with 303.237,
24
after the language I just previously read
L.A. REPORTING (312) 419-9292
18
1
about capable of maintaining these tolerant
2
and intermediately tolerant and intolerant
3
types, it goes on to say, quote, that are
4
adaptive to the unique flow conditions
5
necessary to maintain navigational use and
6
upstream flood control functions of the
7
waterway system.
8
MR. SMOGOR: So could you ask the
9
question again, please?
10
MS. FRANZETTI: Sure. I'm trying to
11
understand is the defined use -- does it
12
consist of basically two parts? The Upper
13
Dresden Island Pool is capable of
14
maintaining, and as you've said, that's
15
having the capacity to support these three
16
categories of fish species, but is it also
17
then modified by that are adaptive, that can
18
adapt is the way I think what it means to the
19
unique flow conditions that are in the Upper
20
Dresden Pool?
21
MR. SMOGOR: Those are probably -- I
22
think they're similar intent there and I
23
think capable of adapting or that are
24
adaptive to -- I'm sorry, that are adaptive
L.A. REPORTING (312) 419-9292
19
1
to was intended to maybe add a -- emphasize a
2
time component, kind of a constancy
3
component.
4
In other words, it's just not
5
taking a snatch out and saying what's there,
6
but what's there is there for a reason, it's
7
able to live under those conditions, it's
8
able to get by under those conditions.
9
MS. FRANZETTI: And is that meant to
10
convey part of the Agency's view that Upper
11
Dresden Island Pool has unique conditions?
12
MR. SMOGOR: I don't really see how it
13
ties directly to that. When we say Upper
14
Island Dresden Pool has unique conditions,
15
the intent there was really with a broader
16
look, outside of the area of the waters that
17
we're addressing in these proceedings. It's
18
unique.
19
All the waters of these
20
proceedings spanned out as unique from all
21
the other waters of the state. That's what I
22
think was intended by unique, just to
23
emphasize that this is a -- it has been --
24
these waters have been in a different box
L.A. REPORTING (312) 419-9292
20
1
since 1972 and we still recognize that they
2
are pretty unique in terms of the level of
3
human impact that they've experienced
4
compared to other waters in the state.
5
MS. FRANZETTI: And is it the Agency's
6
view that fish that are going to be able to
7
reside in Upper Dresden Pool need to be able
8
to adapt to its unique flow conditions?
9
MR. SMOGOR: Yes.
10
MS. FRANZETTI: Following up on that
11
in number three, does existing data on the --
12
and I'm staying with Upper Dresden Island
13
Pool -- show that the aquatic life present
14
has adapted to the unique flow and physical
15
conditions in Upper Dresden Pool?
16
MR. SULSKI: The answer to that is
17
yes, but not to the degree expected.
18
MS. FRANZETTI: And please elaborate
19
on what you mean by not to the degree
20
expected.
21
MR. SULSKI: When we look at the
22
habitat and we compare it against what
23
exists, there's a disparity. What exists is
24
not living up to our expectations.
L.A. REPORTING (312) 419-9292
21
1
MS. FRANZETTI: Moving on to number
2
four now, and I'll modify it a little bit and
3
make it clearer. I know, again, you don't
4
want to list specific species for purposes of
5
the proposed rule, but can you give us an
6
example or two of the types of intolerant
7
species as are referred to generally in
8
303.237 that are, in your opinion, capable of
9
adapting to the conditions as described in
10
the proposed rule?
11
MR. SMOGOR: Can you give me a second
12
on this one, please?
13
MS. FRANZETTI: Sure.
14
(Whereupon, a discussion
15
was had off the record.)
16
MR. SMOGOR: Again, the intent -- in
17
relative terms, there was no real intent to
18
name specific fishes. But as an example of
19
what I think of what probably can be
20
supported in Upper Dresden Island Pool and
21
that may be considered as an intolerant type
22
are kind of the lower rung of the intolerant
23
type.
24
So when we're talking about
L.A. REPORTING (312) 419-9292
22
1
intolerant fish, we're not necessarily
2
talking about -- again, those terms were just
3
relative, so intolerant is up to how someone
4
wants to interpret it. And there are various
5
interpretations in the literature. There's
6
no one set of fish that everyone agrees to is
7
an intolerant set of fish.
8
So you can think of a range of
9
tolerance within a group of intolerant fish.
10
They're kind of on that end of the scale. So
11
examples of those types of fish that are
12
maybe the lower rung of the intolerant types
13
that can be supported, maybe some of the Red
14
Horse Suckers, maybe a few of the Shiners, I
15
believe there's maybe something like a Sand
16
Shiner, I think there's Ghost Shiner is a
17
species that's known to occur in Lower
18
Des Plaines River.
19
Now these fish may -- some of
20
these may be known from below I-55, but if
21
there's nothing blocking them, it's not going
22
to stop them from moving to above I-55. So
23
those are a couple examples of possibilities.
24
MS. FRANZETTI: Thank you. Moving on
L.A. REPORTING (312) 419-9292
23
1
to number five, what scientific data supports
2
the Illinois EPA's conclusion that intolerant
3
fish species can adapt to the type of
4
physical and flow conditions that are present
5
in Upper Dresden Pool?
6
MR. SMOGOR: Adaptability is not an
7
either/or kind of concept. There are varying
8
degrees of adaptability. In general, if an
9
organism can persist at a location I think
10
our intent of the word is that that organism
11
has adapted to live there. That doesn't
12
necessarily mean that particular type is
13
going to do extremely well, but it's barely
14
getting by at a location and it has adapted
15
to some degree to that location.
16
Now there are different levels of
17
adaptability. Another type of organism at
18
the same location may be doing very healthy
19
populations, doing much better, not just
20
barely getting by but living, that organism
21
has also adapted to that situation, but it
22
has adapted to a higher degree, so there are
23
different levels of adaptability.
24
I would say the evidence that
L.A. REPORTING (312) 419-9292
24
1
organisms have adapted to a site is that
2
they're there persistently without the help
3
of, say, human stocking. Obviously, if
4
humans take a fish and stock them there, they
5
might be there through time but you wouldn't
6
necessarily consider that they're adapted
7
unless they're persisting there without the
8
help of human stocking.
9
So that's what I would say, the
10
persistence of an organism at a location I
11
believe is evidence of adaptability to that
12
location for that set of conditions.
13
MS. FRANZETTI: I understand but that
14
seems to be based on an actual condition. In
15
other words, you're saying the fish is there
16
and, therefore, what may be called an
17
intolerant fish species has adapted to
18
conditions that one might not expect it to be
19
able to.
20
But that presumes you have actual
21
evidence that it's adapted. Your proposed
22
rule, as you were just saying earlier, speaks
23
in terms of what may occur, an attainability.
24
So how do you know without as you just said
L.A. REPORTING (312) 419-9292
25
1
the evidence that's there and it's adapted
2
that more intolerant species can, in fact,
3
adapt to the Upper Dresden Island Pool
4
conditions? That's what I'm trying to look
5
for. Is there some scientific data, are
6
there studies that have shown intolerant
7
species can, in fact, adapt to the type of
8
conditions in Upper Dresden Island Pool?
9
MR. SMOGOR: Well, I guess in a lot of
10
ways when we're setting biological potential,
11
we are making some judgments beyond existing
12
conditions. So we are making that judgment
13
that the template that's potentially
14
available in Upper Dresden Island Pool can
15
support a biological condition at a level
16
higher than what the existing condition is.
17
MS. FRANZETTI: And I'm asking you
18
what is that judgment based on? I mean, yes,
19
you can make a judgment but is it based on
20
scientific or technical data?
21
MR. SMOGOR: For the physical habitat,
22
I think there's enough information in the
23
literature especially if we're looking at one
24
indicator of physical habitat, let's say a
L.A. REPORTING (312) 419-9292
26
1
QHEI and the metrics of the QHEI, I think
2
there's enough information in the QHEI
3
literature to suggest that you can attain
4
biological indicator scores higher than what
5
we're actually seeing out there.
6
And along with those higher scores
7
that might better match what we're seeing in
8
terms of the physical habitat scores, those
9
would be consistent with having more
10
intolerant types.
11
MS. FRANZETTI: And how does that take
12
into account the ability to adapt to the
13
unique flow conditions?
14
MR. SMOGOR: In other words, flow and
15
habitat being two different things, is that
16
what you're getting at?
17
MS. FRANZETTI: I guess I'm asking you
18
does the typical QHEI ranking approach take
19
into account what has been identified as the
20
unique flow conditions in Upper Dresden Pool?
21
MR. SMOGOR: To some extent habitat
22
affects flow because of sorting of particles
23
and how flows effect on structuring the way a
24
stream looks physically. To some extent
L.A. REPORTING (312) 419-9292
27
1
habitat does account for effects of flow.
2
Again, the unique flow conditions,
3
we don't really believe that -- they are
4
unique relative to the rest of the state, but
5
they're not so impacted -- the flow
6
conditions are not so impacted in Upper
7
Dresden Island Pool that it would prevent
8
biological conditions from attaining the
9
clean water goals.
10
MS. FRANZETTI: And what's that
11
judgment based on?
12
MR. SMOGOR: I don't know the flow
13
data specifically, but I guess from the UAA,
14
I'm just going back to that, and apparently
15
from the UAA the flow conditions weren't that
16
impacted or that disruptive that would
17
prevent attainment of that biological goal.
18
MR. SULSKI: Can I augment that,
19
please?
20
MR. SMOGOR: Sure.
21
MR. SULSKI: We talk about unique
22
flows, you're focused on this unique flows.
23
MS. FRANZETTI: Well, because that's
24
the language in your proposed rule.
L.A. REPORTING (312) 419-9292
28
1
MR. SULSKI: Okay. And maybe unique
2
was not a good word to put in there for Upper
3
Dresden Island Pool and I will I admit that,
4
maybe it was a mistake because we have
5
systems throughout the state that have
6
similar flow patterns, not in the '70s. In
7
the '70s, all these other factors, you know,
8
took place, they were garbage waters.
9
However, we have other systems
10
that have flow patterns that are probably
11
similar. We have impoundments, we have large
12
rivers, we have examples of that in different
13
areas.
14
MS. FRANZETTI: Well, now be careful,
15
Mr. Sulski, because yesterday we spent a
16
while on establishing that the Agency thinks
17
that these waters are nothing like any other
18
waters in the state.
19
MR. SULSKI: And I'm focusing on
20
unique flow patterns right now. Overall,
21
there are nothing. And they were carved out
22
because they were the only secondary contact
23
waterways. So they're unique -- that's their
24
most unique aspect I think.
L.A. REPORTING (312) 419-9292
29
1
MS. FRANZETTI: Moving on to question
2
six, has the aquatic life present in the
3
CSSC, Chicago Sanitary and Ship Canal, and
4
the Upper Dresden Island Pool also adaptive
5
to the temperature regimes of the waterway?
6
MR. SMOGOR: The present aquatic life,
7
if it is there, if it has shown persistence
8
without human stocking, then, yeah, to some
9
degree it has adapted to the conditions that
10
are present.
11
MS. FRANZETTI: Bear with me on
12
question seven, it's a long one. There are
13
some differences in the language of the
14
proposed aquatic life use designations that
15
describe the physical conditions for the use
16
designation to which it appears the aquatic
17
life must be able to adapt. For example,
18
compare, quote, adaptive to the unique flow
19
conditions necessary to maintain navigational
20
use and upstream flood control functions of
21
the waterway system, end quote, which is used
22
in the Upper Dresden Pool rule to, quote,
23
adaptive to the unique physical conditions,
24
flow patterns and the operational controls
L.A. REPORTING (312) 419-9292
30
1
necessary to maintain navigational use, flood
2
control and drainage functions of the
3
waterway, which is the language used in the
4
Aquatic Life Use A Waters use designation.
5
Are these similar but different descriptions
6
intended to have different meanings, and if
7
so please explain the difference in meaning.
8
HEARING OFFICER TIPSORD: Excuse me,
9
before you answer that, that's
10
Section 303.230 and 303.237.
11
MR. SMOGOR: If you didn't ask the
12
please explain part, I would have had a real
13
short answer to your real long question.
14
MS. FRANZETTI: Well, take the first
15
one. Always take the easy question first.
16
MR. SMOGOR: First part, yes. The
17
second part, the different wording is
18
intended to reflect different levels of what
19
we're calling irreversible human impact.
20
MS. FRANZETTI: That's fine,
21
Mr. Smogor, you handled that quite well.
22
MR. SMOGOR: It's hard for me to give
23
short answers as you may have already
24
realized.
L.A. REPORTING (312) 419-9292
31
1
MS. FRANZETTI: Moving on to 7A, is it
2
the Agency's position that the Upper Dresden
3
Pool does not have unique physical
4
conditions, only unique flow conditions? And
5
now maybe that's changed based on some of the
6
just recent answers. I'm not sure whether
7
you think anything is unique in Upper Dresden
8
Pool at this point so can someone clarify
9
what the Agency's position is on Upper
10
Dresden Pool?
11
MR. SMOGOR: I can give it a shot.
12
Again, I think the use of the word "unique"
13
was to set it apart from the rest of the
14
waters of the state.
15
If that word were actually left
16
out of these definitions, I really don't
17
think it would change the substantive meaning
18
of these definitions at all. So there was
19
not -- there was not any real strong intent
20
for that word "unique" to really -- to
21
provide substance to any of these
22
definitions. They can stand alone without
23
that word in there.
24
MS. FRANZETTI: Moving on to B, what
L.A. REPORTING (312) 419-9292
32
1
is the difference between the Upper Dresden
2
Pool, quote, unique flow conditions, end
3
quote, as that phrase is used in 303.237
4
versus the, quote, unique flow patterns, end
5
quote, as that phrase is used for Aquatic
6
Life Use A Waters in 303.230?
7
MR. SMOGOR: That was intended to
8
convey that the Group A -- the CAWS Group A
9
waters are subject to more direct human
10
control flow patterns and the CAWS A waters
11
are subject to more direct human control than
12
are the flows in Upper Dresden Island Pool.
13
And, Rob, you can add something to that if
14
you have any more insight on that.
15
MR. SULSKI: I can add on C if B is
16
answered sufficiently.
17
MS. FRANZETTI: Well, can I just ask
18
for some elaboration? When you're talking
19
about more direct human controls than is
20
Upper Dresden Pool, what do you mean by that
21
more direct human controls?
22
MR. SMOGOR: If I understand this
23
correctly, the lock and damn system kind of
24
ends at Brandon Pool Damn, maybe even at the
L.A. REPORTING (312) 419-9292
33
1
Lockport Damn for the Chicago Area Waterways.
2
And that is under -- can you help with that?
3
MR. SULSKI: Yeah. It's got to do
4
with operation. Well, it's got to do with a
5
couple of things. The operation controls,
6
which gets into question 7B, we have direct
7
active operation controls at Lockport,
8
Wilmette, Chicago Harbor and Calumet Harbor.
9
This is where water is and can be allowed to
10
flow in and out rapidly. So those are the
11
operational controls that we talk about.
12
In addition to that, when you just
13
look at the general features of Dresden
14
Island Pool compared to Brandon Pool and all
15
the other systems upstream, as you go
16
upstream there's relatively less room for
17
over-bank littoral zone amelioration of
18
flows, there's straight walls or some -- you
19
know, when we get into the CAWS A waters
20
there's some littoral zone. You get into the
21
B waters, it's straight walled, whatever flow
22
comes through, it zips through.
23
So those are the physical
24
characteristics which change flow patterns or
L.A. REPORTING (312) 419-9292
34
1
dictate what types of flow will occur in
2
those three systems.
3
MS. FRANZETTI: And are you also
4
drawing distinction between the fact that for
5
Upper Dresden Island Pool that you just have
6
a lock and damn at the upstream end of the
7
pool and not another lock and damn at the
8
downstream end of what we're calling Upper
9
Dresden Island Pool?
10
MR. SULSKI: The lock and damn brings
11
ships in and out, it's not a flow control
12
structure. They can't open both sides or
13
they won't be able to close them. They open
14
one side, fill it up, the ship goes down,
15
they close that side, they open the other.
16
So it's not a flow control device, it's a
17
lock to get ships back and forth or boats.
18
Whereas in Lockport, they have
19
gate valves to drain the system upstream and
20
they do. They pour it in advance of a storm
21
into the Des Plaines River to try and draw
22
the level down upstream to accommodate a
23
storm event.
24
If they're successful in that,
L.A. REPORTING (312) 419-9292
35
1
they close and it acts as a big surge basin.
2
If they're not successful, if they can't get
3
enough water out of the system, boom, it goes
4
out to the lake. And we know it reversals to
5
the lake. So that's a direct control with
6
control structures to accomplish that and to
7
prevent flooding. That doesn't exist at the
8
Brandon Lock and Damn, that type of control
9
arrangement.
10
MS. FRANZETTI: And that last part,
11
does that answer my next question that the
12
description of the Upper Dresden Pool does
13
not include, quote, operational controls as
14
does the description of Aquatic Life Use A?
15
MR. SULSKI: If you're satisfied with
16
what I told you.
17
MS. FRANZETTI: That's really not the
18
gauge. Is that the meaning when?
19
MR. SULSKI: Yes.
20
MS. FRANZETTI: -- when the Agency
21
uses operational controls, it's of what you
22
described in the Lockport area versus the
23
Brandon Lock and Damn?
24
MR. SULSKI: Yes.
L.A. REPORTING (312) 419-9292
36
1
MS. FRANZETTI: Moving on to D, in the
2
description of the Upper Dresden Pool aquatic
3
life use in Section 303.237, there is no
4
mention of, quote, drainage functions of the
5
waterway system.
6
Is it the Agency's position that
7
the Upper Dresden Pool does not serve any
8
drainage functions for the waterway?
9
MR. SULSKI: No. All waters serve
10
some sort of drainage function.
11
MS. FRANZETTI: Beyond just the
12
typical drainage function that all waters
13
serve?
14
MR. SULSKI: Can you rephrase?
15
MR. ETTINGER: What does drainage
16
function mean? I don't understand your
17
question.
18
MS. FRANZETTI: Well, that's the
19
language and then I guess you don't
20
understand the regulation. Maybe we should
21
ask that question. What did the Agency mean
22
by its use of the phrase "drainage functions"
23
which is used in 303.230 as well as 303.235
24
so we can understand it?
L.A. REPORTING (312) 419-9292
37
1
MR. SULSKI: Let me just read it here.
2
(Peruses document.)
3
MR. SULSKI: So your point is it's
4
mentioned -- it's not mentioned for Upper
5
Dresden?
6
MS. FRANZETTI: Right. But it's
7
mentioned --
8
MR. SULSKI: But it is mentioned. And
9
I think the answer that I gave with the --
10
well, first of all, my first answer, it
11
serves a drainage function, but all waterways
12
serve a drainage function.
13
We brought Aquatic Life Use A and
14
B waters into the drainage -- we put that in
15
there as a use because of these operational
16
controls which are fairly unique. I mean, I
17
don't know any other system in the state that
18
operates that way.
19
MS. FRANZETTI: So that does
20
distinguish Upper Dresden Island Pool from
21
any of the waters in Aquatic Life Use B or
22
Aquatic Life Use A, correct?
23
MR. SULSKI: Yes. It's one of the
24
things.
L.A. REPORTING (312) 419-9292
38
1
MS. FRANZETTI: I understand. I
2
didn't say sole distinction.
3
MR. SULSKI: Okay.
4
MS. FRANZETTI: Mr. Ettinger, does
5
that provide the explanation of drainage
6
functions for your question?
7
MR. ETTINGER: I guess so, yes. I
8
have no idea what you were saying, but now
9
we've worked it out.
10
MS. FRANZETTI: Okay. That's what we
11
want to do. Number eight, does the use of
12
the, quote, adaptive to, end quote,
13
qualifying language mean that only aquatic
14
life that can adapt to these conditions is
15
intended to be protected?
16
MR. SMOGOR: Yes, given that there are
17
different levels of adaptability. Organisms
18
can adapt to conditions at different levels.
19
MS. FRANZETTI: And is that consistent
20
with the MBI/CABB 2005 report approach to
21
setting thermal water quality standards that
22
the Agency relied upon here?
23
MS. WILLIAMS: Can you repeat the
24
question?
L.A. REPORTING (312) 419-9292
39
1
It is the second part of the
2
pre-filed question number eight, so if you
3
have it in front of you. And is that
4
consistent with the MBI/CABB 2005 report's
5
approach to setting thermal water quality
6
standards that the Agency relied upon here?
7
I'm just trying to look for the
8
exhibit if we gave that an exhibit number. I
9
don't think we did. It's part of the
10
pre-filed testimony of Chris Yoder. I think
11
it's in Exhibit 13. You know the report I'm
12
talking about, the recommended thermal
13
criteria.
14
HEARING OFFICER TIPSORD: Which I
15
think isn't that Exhibit 15, the temperature
16
criteria options for Lower Des Plaines River?
17
MS. FRANZETTI: Yes. I'm sorry.
18
HEARING OFFICER TIPSORD: Yes. We did
19
give it an exhibit number because we were
20
referring to it so much, Exhibit 15. That
21
was so long ago I forgot.
22
MR. SULSKI: I'll start to answer this
23
and Roy may augment my answer. When we're
24
talking about setting thermal standards,
L.A. REPORTING (312) 419-9292
40
1
we're talking about protecting certain
2
assemblages but it was based on some species
3
recommended in those thermal criteria.
4
Now, those species recommended may
5
not -- it looks at the tolerance to
6
temperature to one parameter in those
7
species. So you can't take those species and
8
then apply all that to a balanced system.
9
So there could be -- I mean, we
10
would protect for some of those species that
11
are most tolerant to temperature or
12
intolerant to temperature or whatever, but
13
that may not necessarily be reflected in what
14
assemblage can be tolerant or intolerant of a
15
general habitat condition. Okay? So it's
16
kind of --
17
MS. FRANZETTI: There's a bit --
18
MR. SULSKI: Yeah, there's a bit of a
19
disconnect.
20
MS. FRANZETTI: Because really the
21
Yoder work doesn't take into account this
22
issue of adaptability to the conditions in
23
the Upper Dresden Island Pool, correct?
24
MR. SULSKI: Only to the extent that
L.A. REPORTING (312) 419-9292
41
1
they believe that the species -- you know,
2
the representative aquatic species lists are
3
adaptable to the types of systems that we're
4
dealing with here.
5
But that's not the ultimate list
6
of what can be -- what can adapt to these
7
systems. It's just a part of the universe.
8
MS. FRANZETTI: Are you saying that
9
Yoder did take into account adaptability to
10
the conditions in the Upper Dresden Island
11
Pool?
12
MR. SULSKI: Well --
13
MR. TWAIT: I don't know if that's the
14
correct term, adaptive to, for what Chris
15
did. But he did take -- he gave his expert
16
opinion on what might be in these waters and
17
whether they're adaptive to these waters. I
18
mean, he looked at other waters and other
19
systems and determined what he believed would
20
be representative in this system.
21
MS. FRANZETTI: Moving on to number
22
nine, given that the Brandon Pool is
23
immediately upstream of the Upper Dresden
24
Pool and the Brandon Pool is proposed for a
L.A. REPORTING (312) 419-9292
42
1
lower use designation and hence more lenient
2
water quality standards and DO, for the
3
example, than the Upper Dresden Pool which is
4
proposed for a higher use with more
5
restrictive water quality standards, has the
6
Illinois EPA considered the effect of ambient
7
water conditions that would continue to be
8
authorized upstream and whether this may
9
result in upstream dischargers causing
10
violations of the more restrictive water
11
quality standards that apply immediately
12
downstream of the Brandon Pool?
13
MR. ESSIG: I don't know if this was
14
directly considered, but in the event that
15
that did happen it could be handled through a
16
TMDL program.
17
MR. TWAIT: I don't know that ambient
18
water conditions is really appropriate here
19
because they're not really ambient coming
20
down into the Upper Dresden Pool because
21
these waters are heated effluent, so I don't
22
know that ambient would be there.
23
And the second part of that is if
24
this situation does occur and we could deal
L.A. REPORTING (312) 419-9292
43
1
with it the same way as we deal with the I-55
2
bridge where we have a less stringent
3
secondary contact standard going into the
4
general use standard where we could set a
5
water quality -- we could set an ambient
6
station there that the upstream dischargers
7
would have to meet at that point of
8
compliance.
9
MS. FRANZETTI: Right, so that you
10
could tell at the dividing line between
11
Brandon Pool and Upper Dresden Pool whether
12
or not the water quality standards are being
13
achieved at that location?
14
MR. TWAIT: Yes. Correct.
15
MS. FRANZETTI: But if they're not
16
being achieved, then there may be
17
ramifications for the dischargers upstream?
18
MR. TWAIT: Yes.
19
MR. SAFLEY: Do you mind if I ask a
20
follow-up question? When you mentioned this
21
issue perhaps triggering a TMDL process, do
22
you mean a TMDL for the Upper Dresden Island
23
Pool or a TMDL for the Brandon Pool or both
24
together?
L.A. REPORTING (312) 419-9292
44
1
MR. ESSIG: It would have to
2
incorporate the Upper Dresden Island Pool as
3
well as the upstream reaches that might be
4
impacting that. If the water quality
5
violations are occurring in the Upper Dresden
6
Island Pool, you'd look at all inputs to that
7
pool and those inputs also upstream.
8
MR. SAFLEY: Right. And I understand
9
that. I guess the scenario I'm thinking of
10
is if the Upper Dresden Island Pool is in
11
compliance except for what's coming out of
12
the Brandon Pool, then those upstream
13
dischargers are triggering the TMDL for the
14
Upper Dresden Island Pool; is that what
15
you're saying?
16
MR. ESSIG: For the TMDL we'd have to
17
take into account all sources, yes. I mean,
18
if there are point sources that are
19
contributing to that violation, yes, they
20
would be considered within the TMDL process,
21
I believe.
22
HEARING OFFICER TIPSORD: Mr.
23
Ettinger?
24
MR. ETTINGER: This is somewhat
L.A. REPORTING (312) 419-9292
45
1
hypothetical now, isn't it? Didn't we look
2
at whether or not the water quality is
3
meeting general use standards in the Upper
4
Dresden Pool? Is it meeting those standards
5
currently except for temperature and DO?
6
MR. TAIT: For temperature and DO, it
7
does not. Well, for temperature it does not.
8
For DO it may or may not.
9
MR. ETTINGER: But as to every other
10
parameter, the Upper Dresden Pool is meeting
11
general use standards?
12
MR. TWAIT: I believe so. Chloride is
13
going to be an issue also. But other than
14
that, yes.
15
MS. FRANZETTI: Just to follow up on
16
that point, when the Agency answers questions
17
like that, you are not considering any water
18
quality based limits that would be derived
19
under Subpart F, correct?
20
MR. TWAIT: Correct.
21
MS. FRANZETTI: And Subpart F, under
22
your proposal, will apply to Upper Dresden
23
Island Pool, right?
24
MR. TWAIT: Yes.
L.A. REPORTING (312) 419-9292
46
1
MS. FRANZETTI: So we don't know as we
2
sit here today how many of those chemicals
3
that are subject to derivation of a water
4
quality based effluent limit on dischargers
5
will or will not be met in Upper Dresden
6
Island Pool, correct?
7
MR. TWAIT: Yes. That is a good
8
point.
9
MS. FRANZETTI: But for the moment,
10
let's stay with temperature and DO, isn't it
11
foreseeable that upstream dischargers will
12
face more restrictive discharge limits than
13
what's been proposed here for the DO and
14
temperature water quality standards in order
15
to prevent them from contributing to
16
violations of the stricter proposed
17
downstream limit for Upper Dresden Island
18
Pool in these immediately adjacent water
19
bodies?
20
MR. TWAIT: That is possible, yes.
21
MS. FRANZETTI: Moving on to G,
22
Section 303.230, Aquatic Life A Use
23
Designation. In its Statement of Reasons,
24
the Illinois EPA states that this aquatic
L.A. REPORTING (312) 419-9292
47
1
life use designation is created specifically
2
for just a portion of the CAWS. I think
3
we've already answered this. Sorry. I
4
didn't read ahead. Let me skip it.
5
I think two has been asked and
6
answered. Same with three. I don't think we
7
covered four.
8
What is the intended meaning of
9
aquatic life populations as used in the
10
Aquatic Life Use A proposed regulation in
11
Section 303.230? Is it intended to exclude a
12
few fish of a given species that are
13
insufficient to qualify as a population?
14
MR. ESSIG: No. I think the use of
15
the term aquatic life population what we
16
meant by that was the organisms inhabiting a
17
particular area or locality.
18
MS. FRANZETTI: Even if there's just a
19
few of them?
20
MR. ESSIG: I don't think we can
21
consider numbers of organisms at that point.
22
MS. FRANZETTI: Okay. Moving on to
23
Roman six, QHEI/IBI Data, and these questions
24
relate specifically to Attachment R to the
L.A. REPORTING (312) 419-9292
48
1
Statement of Reasons which is the, quote,
2
analysis of physical habitat, quality and
3
limitations to waterways in the Chicago area,
4
end quote, by Edward T. Rankin, Center for
5
Applied Bioassessment and Biocriteria, what
6
we've referred to here by its acronym, CABB.
7
Question number one, Mr. Rankin
8
suggests that all or most of the CSSC be
9
classified as limited resource water. Does
10
the Agency agree this is the Ohio EPA's
11
lowest use classification for aquatic life?
12
MR. ESSIG: Yes.
13
MS. FRANZETTI: Question two, for the
14
Upper Dresden Island Pool area of the Lower
15
Des Plaines, Mr. Rankin notes that habitat
16
was good in the Brandon tailwater area,
17
paren, QHEI equaling 69.5, closed paren, but
18
comments that this site, quote, may not be
19
typical of the downstream reaches, end quote.
20
Does the Agency agree that the
21
Brandon tailwater area is not typical of the
22
Upper Dresden Island Pool habitat quality?
23
MR. ESSIG: Yes, it's not typical but
24
it is present and does provide higher quality
L.A. REPORTING (312) 419-9292
49
1
habitat than what is present upstream in
2
other waters.
3
MS. FRANZETTI: Question three, and
4
I'll skip the evidentiary type statement at
5
the beginning of it so as not to evoke any
6
objections. How are the contaminated
7
sediments in the Upper Dresden Pool -- wait,
8
I think we've already covered this. They're
9
really not being considered by the Agency.
10
You've already --
11
MS. WILLIAMS: Objection.
12
MS. FRANZETTI: Excuse me?
13
MS. WILLIAMS: I just didn't want you
14
characterizing the answer. If you want to
15
get the answer out on the record again, you
16
can ask it again.
17
MS. FRANZETTI: Okay. We can strike
18
my characterization if you think it was such.
19
Number four, with respect to the
20
Brandon tailwater area, Mr. Rankin also
21
states in his report, Attachment R, that,
22
quote, the isolation of this site, paren,
23
among impounded reaches, closed paren, could
24
influence the potential of that site, end
L.A. REPORTING (312) 419-9292
50
1
quote.
2
Does the Agency agree that the
3
isolation of the Brandon tailwater area
4
reduces its potential as available good
5
habitat for aquatic life in the Upper Dresden
6
Pool?
7
MR. ESSIG: No.
8
MS. FRANZETTI: Why do you disagree?
9
MR. ESSIG: There are major
10
tributaries that do come into the system;
11
Hickory Creek, Jackson Creek and then
12
downstream of I-55 you have the DuPage River
13
and Kankakee River. I would not consider
14
this to be an isolated segment.
15
HEARING OFFICER TIPSORD: Just a point
16
of clarification, you talked about
17
tributaries coming in downstream of the I-55
18
bridge?
19
MR. ESSIG: Well, there was
20
tributaries upstream of I-55 and then there
21
was also major tributaries coming in
22
downstream of I-55 also.
23
HEARING OFFICER TIPSORD: Okay. But
24
for Upper Dresden we're only talking about
L.A. REPORTING (312) 419-9292
51
1
everything north upstream of I-55, correct?
2
MR. ESSIG: There still are
3
tributaries coming into the Upper Dresden
4
Island Pool.
5
MR. SULSKI: Can you point out where
6
this isolation of this site is referenced and
7
is it from Rankin or --
8
MS. FRANZETTI: Yeah, it's from
9
Rankin. As I sit here, I would have to pull
10
it out and find it. Can I do it for you
11
later?
12
MR. SULSKI: Well, because I have a
13
note here that it's possibly taken out of
14
context because Rankin has -- says a lot more
15
than that about this system.
16
MS. WILLIAMS: But we can add that to
17
the list of things you'll get back to us on
18
later.
19
MS. FRANZETTI: Okay.
20
MR. SMOGOR: Can I make a comment?
21
Rankin's quote that it could influence the
22
potential of the site, that potential -- I'll
23
pass on that. Strike that, please. Never
24
mind. I won't go there.
L.A. REPORTING (312) 419-9292
52
1
MS. FRANZETTI: But let me go back to
2
your answer about the tributaries. Do any of
3
those tributaries go into the tailwater?
4
MR. ESSIG: Yes, Hickory Creek.
5
MS. FRANZETTI: Hickory Creek goes
6
into the tailwater?
7
MR. ESSIG: Yes, I believe so.
8
MS. FRANZETTI: Okay. And that's your
9
basis for saying --
10
MR. ESSIG: There is another
11
tributary, I believe, that also goes into a
12
smaller tributary. I believe it might be
13
Spring Creek. I'd have to double check.
14
MS. FRANZETTI: And that's your basis
15
for disagreeing to the extent --
16
MR. ESSIG: No. There's also Jackson
17
Creek that comes in through the downstream,
18
but it's still upstream of I-55.
19
MS. FRANZETTI: But Jackson Creek
20
doesn't come into the tailwater area.
21
MR. ESSIG: But you were referring to
22
the Upper Dresden Island Pool, I believe, not
23
just the tailwater.
24
MS. FRANZETTI: No. I was just
L.A. REPORTING (312) 419-9292
53
1
referring to the tailwater and what we think
2
is Rankin's view.
3
MR. ESSIG: I don't think Rankin was
4
referring to that that was isolated in
5
relation to the rest of the pool.
6
MS. FRANZETTI: Okay. You don't think
7
Mr. Rankin meant that the Brandon tailwater
8
is isolated with respect to the rest of the
9
pool?
10
MR. ESSIG: I don't believe so.
11
MS. FRANZETTI: Okay. Moving on to
12
question five, I think we've already answered
13
that, but let me ask, A, do the tailwater
14
areas experience the same temperature regime
15
as the other portions of the Upper Dresden
16
Pool?
17
MR. SMOGOR: I don't know. In the
18
eight miles of the Upper Dresden Island Pool
19
there's likely several different locations
20
that have -- that experience different
21
temperature patterns. So I don't know how
22
well the temperature is in that upper say
23
mile or half mile of Upper Dresden Island
24
Pool compare, are similar or dissimilar from
L.A. REPORTING (312) 419-9292
54
1
the other temperature regimes that are in the
2
lower part of that pool.
3
MS. FRANZETTI: Okay. You are aware,
4
though, that the Brandon tailwater area is
5
shallower than the majority of Upper Dresden
6
Island Pool, correct?
7
MR. SMOGOR: Yes.
8
MS. FRANZETTI: And so isn't it likely
9
that given -- well, do you know approximately
10
what the typical depth is in the Brandon
11
tailwater area?
12
MR. SMOGOR: Not offhand. Do you guys
13
know that?
14
MR. SULSKI: I mean, I've been in
15
areas that are very shallow, some are
16
six feet deep, some are eight feet deep at
17
least when I was there, so it varies
18
depending where you go. There's some rubble
19
areas. And then it depends on the time of
20
the year, as well, if there's no flow over
21
the damn.
22
MS. FRANZETTI: Isn't it likely
23
particularly in the summer months that that
24
shallower water in the Brandon tailwaters is
L.A. REPORTING (312) 419-9292
55
1
likely to get warmer than the rest of Upper
2
Dresden Island Pool due to solar input?
3
MR. SULSKI: Again, I'm not looking at
4
thermometer readings so it's hard to say. I
5
mean, is there water coming over the
6
tailwater? What's going on at the time? I
7
don't know.
8
MS. FRANZETTI: Well, would you agree
9
that it is likely that during the summer that
10
solar inputs to the Brandon tailwater area
11
are going to have a greater impact on its
12
thermal regime than are the thermal effluence
13
discharged by the Midwest Gen plants?
14
MR. SULSKI: I can't make that
15
determination. I would have to look at data.
16
MS. FRANZETTI: So as you sit here
17
today you don't know?
18
MR. SULSKI: I don't know.
19
HEARING OFFICER TIPSORD:
20
Mr. Ettinger, do you have a follow-up?
21
MR. ETTINGER: No. We'll look at the
22
discharge monitoring reports at Will County
23
later.
24
MS. FRANZETTI: Question 5B, how many
L.A. REPORTING (312) 419-9292
56
1
fish would you expect or estimate the Brandon
2
tailwater area of the Upper Dresden Pool to
3
support?
4
MR. SMOGOR: I don't know.
5
MS. WILLIAMS: Are you asking how many
6
species of fish I assume or how many actual
7
fish?
8
MS. FRANZETTI: Both.
9
MS. WILLIAMS: Because you say fishes,
10
right, when you're talking about species.
11
MR. SMOGOR: Right. When I refer to
12
species -- multiple species, I say fishes.
13
MR. SULSKI: I will answer the
14
question the same way as the temperature
15
question, I don't know.
16
MS. FRANZETTI: Moving on to question
17
six, isn't it true that overall habitat
18
quality in Brandon and Lockport Pools is poor
19
and only marginally better in Upper Dresden,
20
which is the conclusion Mr. Rankin reached?
21
MR. ESSIG: No.
22
MS. FRANZETTI: Mr. Rankin recommends
23
that the Upper Dresden Pool's use
24
classification should be, quote, modified
L.A. REPORTING (312) 419-9292
57
1
warm water habitat, acronym, MWH, hyphen,
2
impounded, end quote, using the Ohio EPA's
3
use classification system nomenclature.
4
Does the Illinois EPA agree that
5
Mr. Rankin concluded that Upper Dresden Pool
6
did not have the capability of attaining the
7
Clean Water Act Aquatic Life Uses?
8
MR. SULSKI: Well, Mr. Rankin
9
qualifies that statement saying that it's
10
based on preliminary data. One trip he went
11
out on with myself and we took two
12
measurements, however, he did get a look at
13
the system in general and he goes on to say
14
that it has more natural shoreline, for
15
example, with extensive shallows and cover.
16
So that's just -- I needed to clarify there,
17
that's all.
18
MR. SMOGOR: I would also like to add
19
that Rankin mentions that -- you used the
20
term recommendation, and in his titles of his
21
different sections in the report he does use
22
the word recommended category, but elsewhere
23
in the narrative he does qualify that and he
24
does call them preliminary suggestions.
L.A. REPORTING (312) 419-9292
58
1
MS. FRANZETTI: Moving on to number
2
eight, Mr. Rankin also states that, quote,
3
the physical patterns in these watersheds are
4
very strong and will have a predominant
5
influence on the types of assemblages one
6
might expect, end quote. Does the Illinois
7
EPA agree with Mr. Rankin's statement?
8
MS. WILLIAMS: Do you have a page?
9
MR. SULSKI: Yeah, do you have a page?
10
MS. FRANZETTI: I don't right here,
11
again.
12
MS. WILLIAMS: I don't think they
13
should answer if they can't go back to the
14
quote. I mean, is that reasonable?
15
MS. FRANZETTI: I will find it during
16
the break.
17
Moving on to number nine, I think
18
that's been answered.
19
In B, most of these were asked
20
back when Mr. Yoder was here. But I didn't
21
ask number six, at least according to my
22
notes. So moving to number six under B,
23
Aquatic Life Use Designations, Appendix Table
24
1, 2006 QHEI Attachment S. The QHEI scores
L.A. REPORTING (312) 419-9292
59
1
in Attachment S are significantly higher than
2
the 2004 Rankin CABB report's QHEI scores
3
that are Attachment R, as well as other QHEI
4
scores collected in previous QHEI surveys on
5
the Lower Des Plaines River which did not
6
identify QHEI scores in the Upper Dresden
7
Pool higher than 67, versus the Attachment S
8
QHEI scores of as high as 80.
9
Given these inconsistencies,
10
describe what the Illinois EPA has done to
11
confirm the reliability and accuracy of the
12
information contained in Attachment S.
13
MR. ESSIG: Well, I think Chris Yoder
14
addressed some of these concerns but I'd also
15
like to point out that the statement that
16
there were significantly higher QHEIs at all
17
sites, I don't think that's true. That was
18
primarily the tailwater area.
19
MS. FRANZETTI: I agree.
20
MR. ESSIG: And the site that MBI did
21
the tailwater area in 2006 I believe was
22
probably the furthest upstream the tailwaters
23
had been assessed, so that might accomplish
24
some of the differences.
L.A. REPORTING (312) 419-9292
60
1
Another issue I have with the
2
statement is that you've indicated that there
3
haven't been -- in previous studies there
4
haven't been previous QHEI values greater
5
than 67. I did find at least four, maybe
6
even five values in previous studies that
7
went up as high as 69.5.
8
MS. FRANZETTI: We'll change the 67 to
9
69.5. But has the Agency itself done
10
anything to confirm the reliability and
11
accuracy of the information contained in
12
Attachment S?
13
I understand what Mr. Yoder
14
testified to, that's on the record. I'm just
15
asking whether the Agency took that
16
Attachment S QHEI information and did any
17
sort of review, QAQC check, whatever you want
18
to call it?
19
MR. ESSIG: Did take a look at the
20
data sheets, compared them with some of the
21
other QHEI values taken in the area. But
22
beyond that and what Chris Yoder has
23
testified to, I think that's pretty much it.
24
MS. FRANZETTI: Okay. Moving on to
L.A. REPORTING (312) 419-9292
61
1
seven, does the Agency know what caused the
2
QHEI scores in Attachment S to be as much
3
higher as they are than the prior 2003-2004
4
surveys of the Lower Des Plaines?
5
MR. SULSKI: Didn't we address this
6
with Yoder?
7
MR. ESSIG: Yes, we did. I believe
8
there was --
9
MR. SULSKI: Well, what --
10
MR. ESSIG: I believe what Chris Yoder
11
had indicated during his testimony is that
12
the channel metric, I believe they had used a
13
version of the QHEI, didn't include
14
impoundments, and he went back and included
15
that so that did lower the scores at two of
16
the sites.
17
MS. FRANZETTI: Okay.
18
HEARING OFFICER TIPSORD: I'm sorry,
19
let me ask a follow-up. You said lower the
20
scores, but the Attachment S scores are
21
higher?
22
MR. ESSIG: Yes. What I meant was
23
after he reviewed the sheets, those scores
24
then came down.
L.A. REPORTING (312) 419-9292
62
1
HEARING OFFICER TIPSORD: Okay.
2
MR. ESSIG: So they were not that much
3
out of line anymore.
4
HEARING OFFICER TIPSORD: And for the
5
record, I did not have an indication that
6
this had been previously answered.
7
MS. WILLIAMS: Can I ask a follow-up,
8
as well? Howard, is that reflected in what
9
we've entered as Exhibits 5 and 6 into the
10
record?
11
MR. ESSIG: Yes.
12
MR. DIMOND: I would like to ask a
13
follow-up on that. The revised channel
14
metric that Mr. Yoder testified about, was
15
that used in the QHEI scores that were
16
developed, that were reported in the final
17
UAA report or that were reported in
18
Mr. Rankin's report?
19
MR. ESSIG: Could you repeat the
20
question?
21
MR. DIMOND: The revised channel
22
metric that Mr. Yoder indicated that he used
23
to revise the scores that were reported in
24
Attachment S, was that changed in the channel
L.A. REPORTING (312) 419-9292
63
1
metric used by Mr. Rankin for his report or
2
for the QHEI values that were reported in the
3
final QAA report?
4
MR. ESSIG: I believe Rankin did use
5
that.
6
MR. SULSKI: Yeah. That data came
7
after the UAA reports, so couldn't be
8
reflected in the UAA reports A and B.
9
MR. DIMOND: So the QHEI scores in the
10
UAA report do not reflect this revised
11
channel metric for calculating a QHEI; is
12
that right?
13
MR. ESSIG: I would have to check.
14
I'm not sure.
15
MR. SULSKI: The QHEI data within the
16
UAA reports, first the CAWS UAA that CDM did,
17
that it was based on Rankin's report which we
18
have as Attachment R.
19
MR. DIMOND: I'm really focusing on
20
the UDI Pool because that's all Mr. Yoder --
21
MR. SULSKI: Okay. On the Upper
22
Dresden Island Pool, we can go back to the
23
report and show you the sources of that data,
24
much of it came from Midwest Generation or
L.A. REPORTING (312) 419-9292
64
1
ComEd at the time. And those values are
2
contained with their sources on this series
3
of three maps that we gave out yesterday as
4
Exhibit 30. And those were -- much of those
5
were the basis of the Aquanova report.
6
MR. DIMOND: But it's not clear -- if
7
I look at Exhibit 30, will that tell me --
8
that won't tell me how they measured the
9
channel metric in accumulating the QHEI
10
scores, it just gives me a total score,
11
right?
12
MR. SULSKI: Yes. But then you can go
13
back to the source of these in the report.
14
MR. DIMOND: So, I mean, here's the
15
point is that Attachment S does not include
16
the revised channel metric. Now, Mr. Yoder
17
went back and calculated the revised channel
18
metric and we got some other exhibit, I
19
can't --
20
HEARING OFFICER TIPSORD: 5 and 6.
21
MR. DIMOND: -- Exhibits 5 and 6 that
22
have the recalculated numbers, but if that
23
revised channel metric wasn't used by
24
Mr. Rankin or if it wasn't used in the data
L.A. REPORTING (312) 419-9292
65
1
that was in the final UAA report for the
2
Upper Dresden Island Pool, then referring to
3
the change in the channel metric doesn't help
4
explain why Mr. Yoder's QHEI scores were so
5
much higher than the earlier scores because
6
they were using the same procedure that he
7
was using for the numbers that he calculated
8
in Attachment S.
9
MR. ESSIG: I would tend to agree. I
10
would have to check to see how that metric
11
was used in the earlier reports that were
12
used in the Lower Des Plaines report.
13
MR. DIMOND: Okay. Thank you.
14
MR. SULSKI: But to re-point out that
15
there are also some higher values that are in
16
line with what Yoder found from other sources
17
in different areas of the waterway and that's
18
laid out pictorially for you in this
19
Exhibit 30.
20
MR. DIMOND: Okay.
21
HEARING OFFICER TIPSORD: I have to
22
ask a follow-up because I'm really confused
23
now because I think we're getting two
24
different answers from the Agency.
L.A. REPORTING (312) 419-9292
66
1
Mr. Sulski, were the numbers from
2
Exhibits 5 and 6 used in the UAA report for
3
Upper Des Plaines River?
4
MR. SULSKI: No.
5
HEARING OFFICER TIPSORD: Thank you.
6
The Attachment S numbers are the numbers that
7
were used in the UAA report; is that correct?
8
MR. SULSKI: No.
9
MS. WILLIAMS: No.
10
HEARING OFFICER TIPSORD: Okay. I
11
give up then.
12
MR. SULSKI: You have to go back to
13
the UAA report and see where the numbers came
14
from.
15
HEARING OFFICER TIPSORD: All right.
16
Thank you. That was my confusion. My
17
confusion was I thought we were talking
18
about -- I'm okay now. I understand now.
19
Thank you.
20
MS. FRANZETTI: Is the one place that
21
the Yoder numbers -- we'll call them the
22
Yoder QHEI numbers are actually used or
23
mentioned is in your Statement of Reasons to
24
support these proposed rules; isn't that
L.A. REPORTING (312) 419-9292
67
1
right?
2
MR. SULSKI: That's likely true.
3
MS. FRANZETTI: That's the first time
4
we all hear about them and the Agency makes
5
any reference to them, correct?
6
MR. SULSKI: Correct.
7
MS. FRANZETTI: Okay.
8
MS. WILLIAMS: And can I ask a
9
follow-up?
10
MS. FRANZETTI: Sure.
11
MS. WILLIAMS: Is that because the
12
information came in after UAA reports were
13
completed?
14
MR. SULSKI: Correct.
15
MS. FRANZETTI: And just to complete
16
it so make sure everybody is on the same
17
page, the Yoder scores that are mentioned in
18
the Statement of Reasons are his uncorrected
19
QHEI scores?
20
MR. SULSKI: Correct.
21
MS. FRANZETTI: I think we got it now.
22
Moving on to question 17, I'm jumping a bunch
23
because they were asked back in January, but
24
this one the Agency asked to reserve and we
L.A. REPORTING (312) 419-9292
68
1
would come back to back in the January
2
hearing.
3
How much good -- and I'm defining
4
good habitat as having a QHEI score of
5
greater than 60. How much good habitat is
6
there in each of the subject areas involved
7
in this rulemaking, particularly in the Upper
8
Dresden Pool?
9
MR. ESSIG: I don't have a percent in
10
relation to area, but I do have a percent in
11
relation to the number of QHEI values that
12
have been generated in these waters.
13
MS. FRANZETTI: I think Mr. Essig
14
would you please explain a little more what
15
you mean by that so we understand when you
16
give us the percent, what it's a percentage
17
of?
18
MR. ESSIG: Basically the number of
19
QHEI values that have been determined since
20
the mid '90s all the way through 2006 is what
21
I'm referring to.
22
MS. FRANZETTI: Okay. Just, again, so
23
we can stay with you and I'm sorry to break
24
in, but are those -- and I hope the answer to
L.A. REPORTING (312) 419-9292
69
1
this is yes. Are those the QHEI values that
2
were just mentioned Mr. Sulski as being laid
3
out on the maps that were produced by the
4
Agency yesterday?
5
MR. ESSIG: Yes. There might be a few
6
more that aren't included in there.
7
MS. FRANZETTI: Darn.
8
HEARING OFFICER TIPSORD: And that's
9
Exhibit 30.
10
MS. FRANZETTI: Thank you. Okay. You
11
took QHEI values, most of which are on
12
Exhibit 30, but there may be a few more that
13
you used that are not.
14
MR. ESSIG: Let me explain.
15
MS. FRANZETTI: Okay.
16
MR. ESSIG: I went back to the Lower
17
Des Plaines UAA report, there was a table in
18
there that has QHEI values for the Brandon
19
and the Dresden Island Pool. It was cited to
20
the ComEd report of 1996 was the source of
21
that data.
22
Originally, I just used that data
23
from the Upper Des Plaines report. I decided
24
to go back to the original 1996 report and
L.A. REPORTING (312) 419-9292
70
1
then from there went to individual reports,
2
1993 fishers reports and '94 fishers report
3
that were generated by EA as part of that
4
Upper Illinois Waterways Survey.
5
MS. FRANZETTI: These are reports that
6
were cited in the ComEd 1996 report?
7
MR. ESSIG: Yes.
8
MS. FRANZETTI: Okay. So if somebody
9
wants to follow your train, go to the '96
10
report and then you also looked at references
11
that were contained in there?
12
MR. ESSIG: Yeah. And when I went to
13
those -- and some other reports also, I
14
think. I'd have to go back and check. I
15
basically used all those to look at the
16
percentages.
17
MS. FRANZETTI: All right. And now go
18
ahead to tell me what the percentages are you
19
derived.
20
MR. ESSIG: In the Upper Island Pool
21
roughly 15 percent would be classified as
22
good. In the Lockport Pool there would be
23
none.
24
MR. DIMOND: Just a clarification,
L.A. REPORTING (312) 419-9292
71
1
Mr. Essig, you said that there were none in
2
the Lockport Pool. Did you mean the Brandon
3
Pool?
4
MR. ESSIG: No. I'm referring to the
5
Lockport Pool on that one.
6
MR. DIMOND: What is the Lockport
7
Pool?
8
MR. ESSIG: Upstream Lockport Lock and
9
Damn.
10
MR. DIMOND: Is that even a segment at
11
issue in this proceeding?
12
MR. ESSIG: No, it's not.
13
MR. SULSKI: Well, it is under this
14
whole proceeding. It's part of the CAWS.
15
MR. DIMOND: It's part of the CAWS,
16
okay.
17
MS. FRANZETTI: Mr. Essig, did you
18
look at Brandon Pool or no?
19
MR. ESSIG: Yes, I did.
20
MS. FRANZETTI: Okay. You're pulling
21
that out for us?
22
MR. ESSIG: Yes.
23
MS. FRANZETTI: Okay. We'll wait.
24
HEARING OFFICER TIPSORD: This might
L.A. REPORTING (312) 419-9292
72
1
be a good time to take about a ten-minute
2
break and everybody get up and move around a
3
little bit.
4
(Whereupon, after a short
5
break was had, the
6
following proceedings
7
were held accordingly.)
8
HEARING OFFICER TIPSORD: During the
9
break I spoke briefly with Ms. Williams from
10
the Agency and she pointed out that part of
11
the materials that they filed with the Board
12
on March 4th include another qualitative
13
habitat evaluation index scores sort of map,
14
graph kind of thing.
15
And since we're talking about that
16
right now, we're going to go ahead and enter
17
that as Exhibit 32 if there's no objection.
18
Seeing none, we'll mark this as Exhibit 32.
19
(Document marked as
20
Exhibit No. 32 for
21
identification,
22
03/11/08.)
23
MS. WILLIAMS: Would it be helpful at
24
this point to explain what it is?
L.A. REPORTING (312) 419-9292
73
1
MR. CONSTANTELOS: Does anyone have
2
copies?
3
MS. WILLIAMS: It was in the packet.
4
HEARING OFFICER TIPSORD: Go ahead,
5
Ms. Williams.
6
MS. WILLIAMS: Sure. Mr. Smogor,
7
looking at what's been marked as Exhibit 32,
8
did you prepare this document?
9
MR. SMOGOR: Yes.
10
MS. WILLIAMS: Would you explain for
11
everyone what it means and what's contained
12
in there?
13
MR. SMOGOR: This is a visual summary
14
on one page of the information that's in
15
Exhibit 30, the QHEI scores that are assigned
16
to various locations on the maps in
17
Exhibit 30.
18
So this is one way of just looking
19
at all those scores summarized in graphs and
20
plotted by river mile throughout the Upper
21
Dresden Island Pool.
22
MS. WILLIAMS: Thank you.
23
HEARING OFFICER TIPSORD: And I
24
believe when we took a break Mr. Essig was
L.A. REPORTING (312) 419-9292
74
1
looking for some material to answer a
2
question.
3
MR. ESSIG: Yes. The percent of QHEI
4
scores greater than 60 in the Brandon Pool
5
would have been 0 percent.
6
MS. FRANZETTI: I'm sorry, 0 percent?
7
MR. ESSIG: Zero percent.
8
MS. FRANZETTI: This question number
9
18 may have been answered generally, but I
10
would just like to make sure more
11
specifically I know the answer to this one so
12
I'm going to ask it.
13
Has it been determined whether any
14
of the areas that received QHEI scores
15
greater than 60 with apparently good habitat
16
are, in fact, unusable as good aquatic
17
habitat because of legacy pollutants and
18
sediment?
19
MR. SULSKI: It has not been
20
determined. There isn't -- we didn't have
21
information to make that determination.
22
MS. FRANZETTI: Okay. I'm sorry, I'm
23
jumping. Everything else has been asked
24
through -- go all the way to question 26.
L.A. REPORTING (312) 419-9292
75
1
Now, just by way of clarification because it
2
was supposed to follow 25 but I think you've
3
answered 25 yesterday and somebody else asked
4
the question about the fact that the IBI
5
scores are generally 20 suggesting that the
6
existing aquatic life is not achieving its
7
expected biological potential and I think,
8
Mr. Sulski, you've already explained that;
9
would you agree?
10
MR. SULSKI: Where are we at in terms
11
of waterway reaches?
12
MS. FRANZETTI: We're in Upper Dresden
13
Island Pool.
14
MR. SULSKI: Okay. I believe I
15
answered that.
16
MS. FRANZETTI: Right. Okay. And
17
then so question 26 is how do the many
18
chemical and physical causes of non- to
19
partial attainment identified by the Illinois
20
EPA in their 305B report contribute to these
21
low IBI scores?
22
MR. ESSIG: When you're talking about
23
the many chemicals and the physical causes,
24
are you still referring to the Upper Dresden
L.A. REPORTING (312) 419-9292
76
1
Island Pool?
2
MS. FRANZETTI: Yes.
3
MR. ESSIG: There were no causes
4
listed for the Upper Dresden Island Pool in
5
the 2006 report. It was assessed as meeting
6
indigenous aquatic life use, the current
7
designation for that.
8
MS. FRANZETTI: Yes. Okay. I stand
9
corrected. Let me change the question then
10
taking it away from the 305B report. Have
11
you looked at whether there are any chemical
12
or physical causes of that reduced IBI score
13
for Upper Dresden Island Pool?
14
MR. ESSIG: I personally have not
15
compared it to the general use standards.
16
That was done in the Lower Des Plaines UAA
17
report, I believe.
18
MS. FRANZETTI: I'm sorry, Mr. Sulski,
19
did you want to --
20
MR. SULSKI: He clarified. I wanted
21
to clarify that wasn't Howard's duty to
22
assess these waterways for proposed higher
23
uses.
24
MS. FRANZETTI: Right.
L.A. REPORTING (312) 419-9292
77
1
MR. SULSKI: However, an assessment
2
was done in the UAA reports.
3
MS. FRANZETTI: Let me ask the
4
question a little differently. Mr. Sulski,
5
you've noted that you think that, you know,
6
there is a disparity between the IBI scores
7
that are down in the generally 20 range and
8
the QHEI scores for the Upper Dresden Pool.
9
Has the Agency done an evaluation
10
or review to identify what are the causes of
11
the IBI scores being relatively lower than
12
you think they should be based on the QHEI
13
scores?
14
MR. SULSKI: That's the nature of what
15
the UAAs did. They did a water quality
16
assessment as a part of the process and a
17
near initial part of the process to look at
18
the existing chemical and physical conditions
19
and then compare them against the biological
20
conditions. And when they don't meet, then
21
they try to find out the reasons, try to
22
identify the stressors. So, yes, we did it
23
through our contractors.
24
MS. FRANZETTI: And what did your
L.A. REPORTING (312) 419-9292
78
1
contractors conclude were the reasons for the
2
depressed IBI scores in comparison to the
3
QHEI scores?
4
MR. SULSKI: In the Upper Dresden
5
Island Pool or across the system?
6
MS. FRANZETTI: Upper Dresden Island
7
Pool.
8
MR. SULSKI: Temperature was
9
identified as a significant stressor.
10
MS. FRANZETTI: Anything else?
11
MR. SULSKI: Was DO on the edge?
12
MR. TWAIT: Yes.
13
MR. SULSKI: DO was another
14
parameter -- chemical parameter.
15
MS. FRANZETTI: Anything else?
16
MR. TWAIT: Off the top of my head I
17
believe copper was also, but we've -- I
18
believe copper was also.
19
MR. SULSKI: Let me add that copper
20
was also identified in CAWS. We were able to
21
look at data when we put together this
22
proposal that was generated and submitted to
23
us afterward, after the reports were done at
24
the conclusion of the contractor's work and
L.A. REPORTING (312) 419-9292
79
1
at least in the case of CAWS many of those
2
parameters of concern dropped out.
3
MS. FRANZETTI: You know, if I may,
4
and if you don't know the answer I'll
5
understand, but just as an aside we really
6
haven't discussed the contractor who did the
7
UAA report for the Lower Des Plaines, that
8
was Dr. Novotny and Hey and Associates. Are
9
you familiar with what their prior experience
10
was or familiarity was with the Lower
11
Des Plaines River that they did the UAA
12
report on?
13
MR. TWAIT: No, I can't say that I
14
would know.
15
MS. FRANZETTI: Okay. Moving on,
16
question 27, I'll skip the preamble part and
17
just let me ask the first foundationary
18
question. Has ammonia been identified as a
19
major stressor in the system?
20
MR. ETTINGER: Currently or ever?
21
MS. FRANZETTI: Currently.
22
MR. ESSIG: Are you referring to the
23
UAA report or to the Section 305B, 303D
24
assessment?
L.A. REPORTING (312) 419-9292
80
1
MS. FRANZETTI: Anything. I don't
2
want to exclude anything. I'm trying to
3
understand whether the Agency thinks that
4
ammonia is a major stressor in the system.
5
MR. ESSIG: I'm going to refer to the
6
305B, 303D report. Ammonia was not listed as
7
a cause of impairment for the Upper Dresden
8
Island Pool because it was considered to be
9
meeting its designated use.
10
Ammonia was identified as a
11
potential cause in one the Sanitary Ship
12
Canal segments and also in the Grand Calumet
13
River. Those were the only two segments that
14
listed ammonia. And I would not consider
15
them to be major stressors in the -- the
16
violations of the water quality standards
17
were rather low compared to other stressors
18
like dissolved oxygen.
19
HEARING OFFICER TIPSORD: Mr. Essig,
20
you need to keep your voice up. You trail
21
off especially when you start looking down at
22
your notes.
23
MS. FRANZETTI: And just so we can put
24
that in perspective for purposes of the
L.A. REPORTING (312) 419-9292
81
1
proposed rules, and I must admit offhand I
2
forget, do the proposed rules propose to make
3
the ammonia standards stricter than the
4
current secondary contact against which those
5
conclusions were made?
6
MS. WILLIAMS: Are we asking about the
7
entire waterway here?
8
MS. FRANZETTI: Well, I mean, I was
9
trying just for simplicity, but you know
10
what, I'll take it as just stick with the
11
Lower Des Plaines River portions, Chicago
12
Sanitary and Ship Canal, Brandon and Upper
13
Dresden Island Pool.
14
MR. TWAIT: Yes, I believe they are
15
more stringent than the other standards.
16
MS. FRANZETTI: And so, therefore, if
17
a comparison were done today using the same
18
data Mr. Essig was referring to, we might
19
find both more and a greater severity of
20
noncompliance with the proposed standard?
21
MR. TWAIT: Let me look through --
22
MS. WILLIAMS: Let's pull out the
23
current standard.
24
MR. ETTINGER: Which waters are we
L.A. REPORTING (312) 419-9292
82
1
talking about, the waters in which Mr. Essig
2
identified had been listed as an ammonia
3
problem or the Upper Dresden Pool?
4
MS. FRANZETTI: Okay. Good point.
5
Why don't we stick with what Mr. Essig relied
6
on.
7
MR. ESSIG: It would have been the
8
Sanitary and Ship Canal and the Grand Calumet
9
River.
10
MR. SULSKI: Can I tell you about
11
ammonia in the Lower Des Plaines system first
12
and then we'll look into CAWS?
13
MS. FRANZETTI: Sure. I think that
14
would be helpful.
15
MR. SULSKI: You can find the results
16
of that on Page 244 of Attachment A of --
17
these are the UAA conclusions for the Lower
18
Des Plaines. And I'll summarize it for you,
19
but you can read it to yourself. And that is
20
that both an acute and a chronic standard
21
would be met. In other words, they didn't
22
identify ammonia as a stressor in the system
23
based on their comparisons.
24
MS. WILLIAMS: It's my recollection --
L.A. REPORTING (312) 419-9292
83
1
I don't know if this helps or makes it more
2
confusing, but it's my recollection that at
3
the time this report was prepared that
4
Illinois was in the process of updating its
5
ammonia water quality standards.
6
So I don't think -- I mean, they
7
looked at the criteria document that that
8
update was based on, but I don't know per se
9
that anyone looked at that time at what's on
10
the books now for general use.
11
MS. FRANZETTI: Well, tell you what,
12
in the interest of time do you want to set
13
aside this specific question about what do we
14
think will be the state of compliance with
15
the proposed ammonia water quality standards?
16
MR. SULSKI: Good call.
17
MS. FRANZETTI: Arguably, it's
18
starting to get into the criteria which we --
19
moving on to C, QHEI/IBI Data, CAWS and
20
Brandon Pool Aquatic Life Use B Waters. And
21
I know since these questions were submitted
22
we now have had a lot of QHEI maps and scores
23
come out. In looking at the Exhibit 32 that
24
we were just referring to earlier, is it
L.A. REPORTING (312) 419-9292
84
1
correct that stops at Brandon Lock and Damn,
2
so it would not address the Brandon Pool QHEI
3
data, correct?
4
MR. SMOGOR: Correct.
5
MS. FRANZETTI: Do we now have a map
6
that would show QHEI data in Brandon Pool?
7
MR. SMOGOR: No.
8
MR. SULSKI: No.
9
MS. FRANZETTI: All right. So then I
10
should still ask this question. I thought
11
that was the case but I just wanted to
12
clarify.
13
Question one, on Page 17 of the
14
Sulski pre-filed testimony it is stated that
15
the, quote, QHEI scores in the CAWS and
16
Brandon Pool Aquatic Life Use B Waters
17
generally are below 40 and IBI scores
18
generally are below 22, which are to be
19
expected in waters with very poor to poor
20
habitat attributes. Identify the source or
21
attachment in which this QHEI data is
22
contained.
23
MR. SULSKI: And then I would refer to
24
both of these Exhibit 30 and -- well,
L.A. REPORTING (312) 419-9292
85
1
Exhibit 30 will give you the sources.
2
MS. FRANZETTI: Okay.
3
MR. SULSKI: Wait, we're talking
4
about -- not for Brandon. So for Brandon
5
Pool it would be the Attachment A.
6
MS. FRANZETTI: The UAA report?
7
MR. SULSKI: Correct. And then the
8
source is cited in that report.
9
MS. FRANZETTI: Okay. On Pages 11 to
10
12 of the Twait pre-filed testimony it is
11
stated that White Sucker was added to the
12
list of representative aquatic species, RAS,
13
for the CAWS and Brandon Pool Aquatic Life
14
Use B Waters, quote, based on the fact that
15
White Sucker is present in certain waters.
16
Identify the waters referenced in this
17
testimony and the data on which this
18
statement is based.
19
MR. TWAIT: I want to make a
20
clarification here. The White Sucker was not
21
added to the CAWS and Brandon Pool life Use B
22
waters. The White Sucker was added to the
23
CAWS Aquatic Life Use A waters.
24
MS. FRANZETTI: Okay. And so was your
L.A. REPORTING (312) 419-9292
86
1
testimony referring to certain waters in the
2
Aquatic Life Use A areas?
3
MR. TWAIT: Yes.
4
MS. FRANZETTI: Can you tell us which
5
those are?
6
MR. SMOGOR: Not off the top of my
7
head. But when Scott asked me about that I
8
was using the fish data that were in the CAWS
9
UAA Attachment B.
10
MS. FRANZETTI: So Mr. Smogor, what
11
you're telling me is if I go look at
12
Attachment B, the UAA report for the CAWS, I
13
should find some information about where
14
White Sucker is present?
15
MR. SMOGOR: Yeah.
16
MS. FRANZETTI: Okay. Moving on to
17
Roman seven, Effluent and Waterway Management
18
Controls, and this regards Mr. Sulski's
19
pre-filed testimony at Page 18. Number one,
20
regarding a statement that, quote, the UAA
21
found that attainable uses were in some cases
22
not achievable without overcoming dissolved
23
oxygen, temperature and bacteria limitations,
24
what, quote, unquote, cases are being
L.A. REPORTING (312) 419-9292
87
1
referred to here?
2
MR. SULSKI: It would be in the CAWS
3
UAA Report B, they went reach by reach and
4
identified which reaches failed their
5
screening criteria for various parameters,
6
including oxygen, temperature and bacteria.
7
MS. FRANZETTI: Moving on to question
8
two, does the Illinois EPA contend that the
9
attainable use for the Chicago Sanitary and
10
Ship Canal is not attainable solely because
11
of temperature?
12
MR. SULSKI: I believe there were DO
13
deficiencies or DO and temperature conditions
14
identified in the Chicago Sanitary and Ship
15
Canal.
16
MS. FRANZETTI: So it's not the
17
Agency's position that temperature alone is
18
preventing any such use from being attained?
19
MR. SULSKI: Correct.
20
MS. FRANZETTI: Same question, number
21
three, with respect to Upper Dresden Island
22
Pool, does the Illinois EPA contend that an
23
attainable use for the Upper Dresden Pool is
24
not attainable solely because of temperature?
L.A. REPORTING (312) 419-9292
88
1
MR. SULSKI: For the most part, yes.
2
MS. FRANZETTI: I'm sorry, so for the
3
most part you are contending that temperature
4
is preventing the Upper Dresden Pool from --
5
MR. SULSKI: Yes.
6
MS. FRANZETTI: Okay. So can you
7
identify what the use is that's not being
8
attained due to temperature and the basis
9
including any supporting technical and
10
scientific data for the statement that for
11
the most part temperature is preventing any
12
such use from being attained?
13
MS. WILLIAMS: Well, can we break this
14
up, I'm getting lost?
15
MR. SULSKI: Well, if you refer back
16
to the Aquanova UAA report, Attachment A,
17
there's discussion in their comparisons that
18
the temperatures at times would be lethal.
19
And then if you look at the criterion or the
20
criterion parts of the standard, the
21
temperature numbers that we're proposing and
22
you compare existing conditions to those,
23
then that supports what the Lower Des Plaines
24
UAA is contending.
L.A. REPORTING (312) 419-9292
89
1
MS. FRANZETTI: And at those times
2
when the Aquanova report says the there were
3
lethal temperatures, were there reports of
4
fish kills?
5
MR. TWAIT: I'm sorry, I thought Rob
6
said that the Aquanova report was talking
7
about -- the Aquanova report, as I have said
8
before, misspoke when they said that there
9
was lethal temperatures.
10
MS. FRANZETTI: That's what I thought
11
he said in January but I thought maybe we
12
were changing the position again.
13
MR. TWAIT: No. I misunderstood Rob
14
when he said -- if he said that. And I've
15
made some corrections that were submitted and
16
those statements made by Aquanova were not
17
correct --
18
MS. FRANZETTI: Okay.
19
MR. TWAIT: -- about the ambient
20
temperature.
21
MS. FRANZETTI: Right. I understand.
22
And that's why I am pressing for what is the
23
basis for saying that it's temperature that
24
for the most part is preventing the Upper
L.A. REPORTING (312) 419-9292
90
1
Dresden Pool from attaining a higher use?
2
MR. SULSKI: Well, I'm going to let
3
Scott follow up because I don't want to cut
4
my throat here. But it's my understanding
5
that temperature is the only limiting factor
6
left in trying to identify stressors in the
7
Upper Brandon Pool is what we're -- or I'm
8
sorry, in the Upper Dresden.
9
MR. SMOGOR: When you say --
10
MR. SULSKI: Let me strike that
11
because we're back in the Upper Dresden
12
Island Pool.
13
MR. TWAIT: According to our
14
contractor, the Upper Dresden Island Pool
15
should have lower temperatures based upon his
16
analysis, so that's where that statement
17
would come from that we believe it's a
18
limiting factor.
19
MS. FRANZETTI: Mr. Twait, do you
20
believe there are other limiting factors in
21
Upper Dresden Island Pool?
22
MR. TWAIT: I'm not sure.
23
MS. FRANZETTI: What about --
24
MR. TWAIT: I think temperature is the
L.A. REPORTING (312) 419-9292
91
1
major factor here.
2
MS. FRANZETTI: Do you think that flow
3
alteration is a factor?
4
MR. TWAIT: I would have to defer to
5
the biologists.
6
MS. FRANZETTI: All right. We've
7
already established, we just don't know
8
about -- or the Agency doesn't feel it knows
9
enough to say whether contaminated sediment
10
is. What about lack of adequate good to
11
excellent habitat, that's not a major factor?
12
MR. TWAIT: I would have to defer to
13
the biologists for that.
14
MR. SMOGOR: If I may, the use that we
15
proposed for Upper Dresden Island Pool, the
16
biological potential that that use
17
represents, we believe that that potential is
18
attainable given the irreversible human
19
impacts that occur in Upper Dresden Island
20
Pool which include some aspects of flow that
21
are obviously non-natural and also some
22
aspects of habitat that fall short of
23
obviously non-natural habitat.
24
But given the availability of that
L.A. REPORTING (312) 419-9292
92
1
template, which we're judging is
2
irreversible, we still believe that the goal
3
that we've set for that water in terms of the
4
aquatic life use is reasonable.
5
MS. FRANZETTI: Okay. And accepting
6
that, is it the Agency's position that -- let
7
me step back because this is important I
8
think, very important points for all of us to
9
understand.
10
Today, the Agency's position is
11
that Upper Dresden Pool does not attain the
12
proposed use designation?
13
MR. SMOGOR: Yes.
14
MS. FRANZETTI: Okay. And what the
15
Agency is saying is that the major reason it
16
doesn't is temperature?
17
MR. SMOGOR: Yes.
18
MS. FRANZETTI: No other significant
19
causes to it not being able to attain today
20
this proposed use?
21
MR. SMOGOR: We believe that the
22
primary problem keeping it from reaching that
23
goal that we've set is temperature and
24
temperature related. Temperature has effects
L.A. REPORTING (312) 419-9292
93
1
on other things, one notable one is dissolved
2
oxygen. The warmer the water gets, the less
3
it can hold dissolved oxygen. So there are
4
these synergistic effects of temperature on
5
factors other than just the temperature
6
effect on the organisms living there.
7
MS. FRANZETTI: But Mr. Smogor, didn't
8
we just -- I think it was yesterday and I
9
think it was Mr. Twait who pointed it out
10
that at the I-55 bridge where there is
11
extensive monitoring done of both temperature
12
and DO and even at the current higher thermal
13
standard that applies from what you've
14
proposed here for I-55, Mr. Twait, didn't you
15
say you don't see DO violations even of the
16
more stringent DO standard that exists today
17
than what you proposed here?
18
MR. TWAIT: That's the limited data
19
that I looked at in Appendix A, that is
20
correct.
21
MS. FRANZETTI: That data is limited?
22
MR. TWAIT: I believe the data that I
23
was looking at just had a couple years in it.
24
MS. FRANZETTI: Okay.
L.A. REPORTING (312) 419-9292
94
1
MR. SMOGOR: But I'd also like to add
2
I do believe that the Attachment A, the Lower
3
Des Plaines River UAA does provide some
4
evidence of excursions below the existing
5
standard -- I'm sorry, below the existing
6
general use standard.
7
They did compare it to the
8
existing general use standard which has since
9
changed, effectively, excursions below 5.0
10
milligrams per liter.
11
HEARING OFFICER TIPSORD: And we're
12
talking about dissolved oxygen when you talk
13
about excursions, not temperature?
14
MR. SMOGOR: Dissolved oxygens, sorry.
15
MS. FRANZETTI: Do you know whether
16
any of those were associated with CSO events?
17
MR. SMOGOR: I don't know for sure.
18
MS. FRANZETTI: Would you agree that
19
that would be a relevant consideration before
20
temperature is blamed?
21
MR. SMOGOR: Sure.
22
HEARING OFFICER TIPSORD: Ms.
23
Franzetti, before you move on, Mr. Twait,
24
earlier you referenced the fact that you had
L.A. REPORTING (312) 419-9292
95
1
submitted some edits to the UAA Attachment A
2
on the thermal issue in particular. And
3
since we're discussing that, I think it might
4
be helpful if we go ahead and enter that as
5
an exhibit, as well. Just to be sure, it's
6
the edits to the Lower Des Plaines UAA,
7
Attachment A to the Illinois EPA's Statement
8
of Reasons that was filed on March 4th; is
9
that what you were referring to?
10
MR. TWAIT: Yes.
11
HEARING OFFICER TIPSORD: Those were
12
filed on March 4th and we will enter that as
13
Exhibit No. 33 if there's no objection.
14
Seeing none it is Exhibit 33.
15
(Document marked as
16
Exhibit No. 33 for
17
identification,
18
03/11/08.)
19
HEARING OFFICER TIPSORD: Go ahead,
20
Ms. Franzetti.
21
MS. FRANZETTI: I think in the
22
exchange that we just had I pretty much
23
covered question four.
24
Question five, can you describe
L.A. REPORTING (312) 419-9292
96
1
the expected improvements to these
2
limitations caused by temperature that will
3
occur, and I'm going to change this to the
4
Upper Dresden Pool, based on requiring
5
effluent cooling?
6
MR. SULSKI: I should strike Sanitary
7
Ship Canal?
8
MS. FRANZETTI: For now. I want to
9
stay with -- we were just talking about the
10
Upper Dresden Pool so I want to stay with
11
that. The next question is the same question
12
with the Upper Dresden Pool so I'm really
13
asking question six before question five.
14
MR. SULSKI: Well, a couple of things
15
come to mind. If you have an elevated
16
temperature that is pervasive throughout some
17
portions or that creates a block in a system,
18
you're going to disrupt aquatic species for
19
migrating around that system.
20
For example, the temperature is
21
high, they'll want to avoid it, they won't be
22
able to get at these pockets of habitat that
23
we've identified. That's something that
24
comes to mind.
L.A. REPORTING (312) 419-9292
97
1
And then just general improvements
2
that occur with the lowering of temperature
3
and removing that stressor, general
4
improvements in aquatic life assembly.
5
MS. FRANZETTI: Same question with
6
respect to the Chicago Sanitary and Ship
7
Canal, please describe the expected
8
improvements to the, quote, limitations, end
9
quote, caused by temperature that will occur
10
in the Chicago Sanitary and Ship Canal based
11
on requiring effluent cooling.
12
MR. SULSKI: I would reiterate what I
13
just said about the Upper Dresden Island
14
Pool, but I would add the dissolved oxygen
15
problems that also exist more dramatically in
16
the south branch of the upper Chicago
17
Sanitary and Ship Canal so that now you have
18
two major stressors interacting with each
19
other so removal of either one of those will
20
result in improvement -- should result in
21
improvements.
22
The other thing that's a little
23
unique to this situation is if you look at
24
the -- I'm going to call it the Lockport
L.A. REPORTING (312) 419-9292
98
1
Pool, although it's not been referred to, but
2
we'll call the Lockport Pool everything
3
that's upstream of the Lockport area and goes
4
out to the control structures that prevent
5
water from coming in and out of Lake
6
Michigan. We have the Calumet system on the
7
south and then we've got the Chicago River
8
system on the north.
9
Well, sort of in the middle you've
10
got the south branch and the upper part of
11
this Chicago Sanitary and Ship Canal. If you
12
have a stressor blocked there, you've really
13
basically cut off communications, you've
14
essentially reduced that to two zones now,
15
and so you're preventing migration,
16
immigration, emigration through that system
17
by aquatic wildlife, you've set up a block.
18
So that's an added problem in that system.
19
For example, there's limited
20
habitat for spawning purposes in the Chicago
21
River system. However, if you get into the
22
Little Calumet River system and the Little
23
Calumet lower leg where there's general use
24
waters and that, you have more availability
L.A. REPORTING (312) 419-9292
99
1
there. But if you cut off the communications
2
in that system, you know, that's an
3
impairment right there in my view.
4
MS. FRANZETTI: When you say the
5
communications in that system, do you mean
6
the ability to get from one spot to another
7
throughout the system?
8
MR. SULSKI: Yes.
9
MS. FRANZETTI: But isn't that already
10
somewhat inhibited by that invasive species
11
electric barrier?
12
MR. SULSKI: Well, that's true, but
13
that invasive barrier is downstream, there's
14
communication cut off between -- in that
15
lower Sanitary Ship Canal between the barrier
16
zone area and whatever can come in at the
17
Lockport lock, but that's a small Use B
18
reach. That's already limited by severe
19
habitat restrictions and that.
20
I'm talking about in the south
21
branch and the north Sanitary Ship Canal,
22
just a thermal and DO bifurcation of that
23
whole system.
24
MS. FRANZETTI: Do you know whether
L.A. REPORTING (312) 419-9292
100
1
that bifurcation, you've also called it I
2
think blockage, occurs presently? I mean,
3
isn't it possible that the temperatures will
4
stratify vertically and allow fish to swim
5
under the warmer surface waters?
6
MR. SULSKI: I don't have the data to
7
support that.
8
MS. FRANZETTI: Or to refute it?
9
MR. SULSKI: I do have some data on
10
dissolved oxygen that indicates dissolved
11
oxygen drops to zero at times.
12
MS. FRANZETTI: During CSOs, correct?
13
MR. SULSKI: Yes.
14
MS. FRANZETTI: That is not typically
15
a time of high effluent temperature being the
16
cause of the ambient elevated temperatures,
17
correct?
18
MR. SULSKI: That is correct.
19
However, the CSO events consist of solids and
20
floatable material, organically rich material
21
which then settles out in the system again
22
and then gets churned up by barges and
23
traffic. And then if the temperature is
24
raised, it starts decomposing. It's an -- I
L.A. REPORTING (312) 419-9292
101
1
couldn't design a better in situ treatment
2
system than exists there, I'll tell you.
3
HEARING OFFICER TIPSORD: Mr. Harley,
4
you have a follow-up?
5
MR. HARLEY: Mr. Sulski, is it your
6
testimony that temperature block at a single
7
location in a stretch of waterway can affect
8
the entire waterway?
9
MR. SULSKI: Yes.
10
MR. HARLEY: Where are the temperature
11
blocks in the Chicago Sanitary and Ship
12
Canal.
13
MR. SULSKI: The south branch and the
14
upper Sanitary Ship Canal.
15
MR. HARLEY: Can you attribute those
16
temperature blocks to specific sources?
17
MR. SULSKI: Yes.
18
MR. HARLEY: What are those sources?
19
MR. SULSKI: Power plants.
20
MR. HARLEY: How do the temperature or
21
the thermal conditions attributed to those
22
power plants affect DO levels in the Chicago
23
Sanitary and Ship Canal?
24
MR. SULSKI: In a number of ways.
L.A. REPORTING (312) 419-9292
102
1
I'll cite two, which I already did. If you
2
raise the temperature, you raise the
3
activities of decomposers, organisms that
4
decompose organic matter. And if you have
5
food there for them, their metabolic rate
6
will increase and they will start to consume
7
those organics and may extract oxygen from
8
the waterway, so the oxygen subsequently
9
lowers.
10
I lost my train of thought.
11
Sorry. Could you repeat the question? I had
12
a couple in mind and I lost my train of
13
thought.
14
MR. HARLEY: Yeah. You said that
15
there were two ways in which temperature and
16
DO were related to one another.
17
MR. SULSKI: Okay. The other thing is
18
saturation -- a chemical saturation
19
situation. The higher the temperature, the
20
less dissolved oxygen water can hold.
21
MR. HARLEY: And so is it your
22
testimony that if you were to limit excessive
23
thermal conditions in waste water from the
24
sources you've identified, that would improve
L.A. REPORTING (312) 419-9292
103
1
both temperature and DO conditions in Chicago
2
Sanitary and Ship Canal?
3
MR. SULSKI: Correct.
4
HEARING OFFICER TIPSORD: Mr. Harley,
5
you need to identify yourself for the court
6
reporter.
7
MR. HARLEY: I'm sorry. My name is
8
Keith Harley, Chicago Legal Clinic on behalf
9
of the Southeast Environmental Task Force.
10
HEARING OFFICER TIPSORD: Thank you.
11
MS. FRANZETTI: I'm sorry, Mr. Sulski,
12
I just don't understand how you can adamantly
13
or definitively say there are blockages when
14
you can't tell me whether or not it is
15
vertically stratified or not.
16
I specifically asked the question
17
of is it possible that the temperatures will
18
stratify vertically and allow fish to swim
19
under the warmer water and you said you don't
20
know.
21
MR. SULSKI: I don't know.
22
MS. FRANZETTI: So how can you answer
23
Mr. Harley and say there's a blockage there?
24
I don't understand.
L.A. REPORTING (312) 419-9292
104
1
MR. SULSKI: Okay. It's my
2
understanding through the interaction of
3
dissolved oxygen and temperature that we have
4
a multi-stressor block in that system with
5
contributions from both temperature and DO
6
and I think that that would occur regardless
7
of whether there's a zone to go below a
8
higher temperature or not.
9
MS. FRANZETTI: What's your
10
understanding based on? I mean, other than
11
your opinion, what data is it based on?
12
MR. SULSKI: I have data that
13
dissolved oxygen drops to zero in that zone.
14
MS. FRANZETTI: When?
15
MR. SULSKI: After overflow events.
16
MS. FRANZETTI: Okay.
17
MR. SULSKI: And I also know that
18
temperature increases metabolic rate, and so
19
based on that connection, that that
20
exacerbates that problem.
21
MS. FRANZETTI: I understand those
22
principals. Have you looked at your data of
23
when you get those low DOs down to zero
24
what's happening on temperature? I mean, has
L.A. REPORTING (312) 419-9292
105
1
temperature gone up at the time that you get
2
those low DOs so you see a correlation
3
between high temps, low DO?
4
MR. SULSKI: Let me give you my
5
observations of what occurs out in the
6
waterway.
7
MS. FRANZETTI: No. I'm asking you
8
about data. Is there data to back up this
9
alleged connection between the cause of the
10
low DOs being high temperatures? That's what
11
I am asking. I don't want judgments anymore.
12
I want to know if there's data to back up
13
these judgments.
14
MR. SULSKI: Okay. Let me just -- may
15
I just explain to you what happens during a
16
fish kill or a stress situation in that zone
17
of the waterway?
18
MS. FRANZETTI: Mr. Sulski, you could
19
explain it but it's not the question I'm
20
asking. And I don't know why the Agency is
21
fighting us on this. Is there or isn't there
22
this data?
23
MR. SULSKI: I'm not trying to fight
24
you.
L.A. REPORTING (312) 419-9292
106
1
MS. WILLIAMS: Are you asking if there
2
is or is not thermal stratification data, is
3
that your question?
4
MS. FRANZETTI: No. I'm asking
5
whether there is data showing that when
6
you're getting these low DOs that are
7
apparently now being blamed on the high
8
temperature, you have data showing there's
9
high temperatures at the time or higher
10
temperatures causing these low DOs. I want
11
to see if the data supports the judgments.
12
MS. WILLIAMS: So you're asking if
13
there's contemporaneous data for temperature
14
and DO at the low DO times that can be
15
compared to each other?
16
MS. FRANZETTI: Right.
17
MR. SULSKI: I haven't personally
18
looked at that same time comparison. I
19
believe that the data exists. And I believe
20
that the contractor got some of that data,
21
too, because we were supplied with a lot of
22
continuous monitoring data by MWRD that
23
includes temperature and DO.
24
MS. FRANZETTI: Okay. You think it
L.A. REPORTING (312) 419-9292
107
1
exists but you don't know whether it shows
2
that correlation?
3
MR. SULSKI: Well, I know that the
4
data exists and I would have to go back to
5
prove that relationship, yes.
6
MS. FRANZETTI: Okay. Fair enough.
7
MR. SULSKI: I would like to add
8
something to that.
9
MS. FRANZETTI: Okay.
10
MR. SULSKI: And that is my
11
observations on when fish kills and fish
12
stresses because we're talking about
13
blockages that include thermal and DO
14
situations. There's a third example that
15
occurs. And this is when we get fish kills
16
in stress situations in the south branch and
17
in the upper Sanitary Ship Canal, it's a
18
typical situation where you have the hot
19
season, late July/August, the temperatures
20
are elevated, especially in that reach of the
21
river, you have a storm event that results
22
in -- are you listening?
23
MS. FRANZETTI: I'm listening. I'm
24
trying to find the south branch on the map.
L.A. REPORTING (312) 419-9292
108
1
MR. SULSKI: Please do.
2
MS. FRANZETTI: Okay. I'm sorry,
3
Mr. Sulski, just so we can understand where
4
you're talking about, when you refer to the
5
south branch could you take one of the maps?
6
Some people are saying are you talking about
7
Bubbly Creek.
8
MR. SULSKI: Yes. If you'll hone in
9
on your Fisk and Crawford power plants,
10
that's the area I'm talking about.
11
MS. FRANZETTI: In between those two?
12
MR. SULSKI: Up stream, downstream,
13
around those areas.
14
MS. FRANZETTI: Okay.
15
HEARING OFFICER TIPSORD: And for the
16
record, those are marked in red on all three
17
exhibits, 27, 28 and 29. The Fisk and
18
Crawford plants. I'm sorry, just on Exhibits
19
26 and 27. Sorry. It's all running
20
together.
21
MS. FRANZETTI: And Mr. Sulski, again,
22
before you go further, when is or was the
23
fish kill that you're talking about that's in
24
this area?
L.A. REPORTING (312) 419-9292
109
1
MR. SULSKI: I've worked for the
2
Agency for 25 years, I can give you fish
3
kills and fish stress times that were
4
reported and that we went out and
5
investigated. So they've occurred on and off
6
for the last 25 years that I have been with
7
the Agency.
8
MS. FRANZETTI: In this area?
9
MR. SULSKI: In that area, yes.
10
MS. FRANZETTI: Okay.
11
MR. SULSKI: Fish stress situations
12
where the fish are at the surface sucking
13
water, that the carp are up at the surface
14
sucking air I mean, so that's a stress
15
situation.
16
Typically what occurs in this
17
system is in July and August when the
18
temperatures are as high as they get in that
19
reach, we have these significant storm
20
events, the sewers overflow, organic matter
21
gets put into the system, the DO drops to
22
zero or somewhere around there and the
23
temperature drops. So what happens is the
24
fish get triple whammied.
L.A. REPORTING (312) 419-9292
110
1
First of all, they're under a
2
stress situation because of high temperature,
3
then you drop the temperature by more than
4
four or five degrees, that's a reverse
5
thermal stress situation, then you hit them
6
with all this sewage and you drop the oxygen
7
down to zero and they croak. They don't
8
outright croak, they're sucking air at the
9
surface or they're just floating back down
10
the system.
11
So this is a third situation as an
12
example of what occurs in this zone. And
13
this is why I bring in both temperature and
14
oxygen as leading stressors in that
15
situation. And if that occurs every year,
16
it's a triple whammy stressor.
17
MS. FRANZETTI: Is there data on these
18
fish kill situations you're talking about?
19
MR. SULSKI: There are investigations
20
and reports, yes.
21
MS. FRANZETTI: Okay. Are any of
22
these in the last ten years?
23
MR. SULSKI: I believe there are some
24
in the last ten years, yes.
L.A. REPORTING (312) 419-9292
111
1
MS. FRANZETTI: Okay. We're not
2
aware.
3
MR. SULSKI: I have a good file on
4
that.
5
MS. FRANZETTI: Okay.
6
MR. SULSKI: That won't account for
7
situations where fish aren't dead in huge
8
numbers where it gets reported to us. We
9
respond to reports. We don't run out there
10
when that situation occurs. The data will
11
be -- it will underestimate the situation.
12
But we'll provide you with that.
13
MS. FRANZETTI: Okay. Moving on to
14
question six, describe the expected
15
improvements to any, quote, limitations
16
caused by temperature that will occur in the
17
Upper Dresden Island Pool based on requiring
18
effluent cooling.
19
MR. SULSKI: Well, if we remove what
20
we consider to be a thermal -- if what one
21
would consider to be a thermal barrier, there
22
would be more freedom for aquatic life to
23
move about the pool and get into and out of
24
some of these zones of reasonable habitat
L.A. REPORTING (312) 419-9292
112
1
that we've identified.
2
MS. FRANZETTI: Okay. More freedom of
3
movement for the aquatic life. Any other
4
expected improvements from requiring effluent
5
cooling for Upper Dresden Island Pool?
6
MR. SULSKI: Well, I would expect that
7
if we remove stressors, temperature being
8
one, that are subsequent assessments, that
9
being IBI, et cetera, would be more
10
commensurate with the habitat that exists out
11
there as opposed to currently the disparity
12
that exists between what we expect based on
13
habitat to what is actually occurring in
14
terms of aquatic life right now.
15
MS. FRANZETTI: And can you -- I
16
understand you say the IBI is going to
17
improve. Can you give us anything more
18
specific about how the aquatic life will
19
change out there?
20
MR. SULSKI: Well, I've given two
21
examples.
22
MS. FRANZETTI: I'm sorry, is one
23
example more freedom of movement?
24
MR. SULSKI: Freedom of movement to
L.A. REPORTING (312) 419-9292
113
1
occupy a restricted -- some of these habitat
2
areas that we have?
3
MS. FRANZETTI: What was the second.
4
MR. SULSKI: Improvement in the
5
aquatic life condition as reflected in
6
aquatic life.
7
MS. FRANZETTI: That's the one I'm
8
asking you to -- you know, the mere statement
9
that the IBI is going to improve somewhat
10
doesn't mean anything more than that. What
11
will we see reflected out there in the
12
aquatic life?
13
MR. SMOGOR: If we're improving
14
conditions that we believe are limiting or
15
keeping water from attaining a biological
16
condition that would meet a proposed goal,
17
there are a number of ways waters can improve
18
or the biological community can change to go
19
from a lower biological condition to a higher
20
biological condition.
21
One of the most common is you
22
allow more different types of organisms, you
23
create a better situation for organisms that
24
are precluded or effectively precluded, they
L.A. REPORTING (312) 419-9292
114
1
occur at such lower numbers or they're barely
2
holding on. If you improve these conditions,
3
these organisms will move in and say, yeah,
4
that's good for me now and you're more likely
5
to encounter them. And so one real common
6
manifestation would be a greater number
7
of species showing up with persistence?
8
MS. FRANZETTI: And that's really what
9
we're getting at here is who do you expect to
10
show up? I mean, it's great to say, well,
11
you know, we think that more species are
12
going to show up if we require all these
13
dischargers to cool their effluent. But who
14
is going to show up? Where is there some
15
certainty to what is this degree of
16
improvement that's going to occur?
17
MR. SMOGOR: They're showing up. And
18
there's also if they're barely holding on or
19
barely subsisting, then species that are
20
barely subsisting will probably benefit as
21
well. And given that they're already there,
22
they'll show up probably in greater numbers.
23
And you're achieving the balance then.
24
Balance isn't just based on who is there and
L.A. REPORTING (312) 419-9292
115
1
who isn't there. Balance is based on the
2
relative numbers of what is occurring there
3
as well.
4
So, for example, maybe -- and I
5
don't know all the details of what species
6
are living there in exactly what numbers
7
right now. But one thing that wouldn't be
8
surprising would be for some of the
9
organisms, some of the say fish that live
10
downstream, assuming that they're not being
11
blocked by some negative conditions below
12
I-55, would be more inclined to and be better
13
able to be supported above I-55 if these
14
changes occur.
15
MS. FRANZETTI: Because above I-55 has
16
got better habitat than below I-55?
17
MR. SMOGOR: No, not necessarily
18
better. But we expect that because we
19
believe temperature and things associated
20
with temperature are limiting the biological
21
potential, again, we've set the biological
22
potential based on what we believe the
23
habitat can support above I-55. Upper
24
Dresden Island Pool is what I'm referring to.
L.A. REPORTING (312) 419-9292
116
1
So it wouldn't be surprising to
2
find species that can occur down stream and
3
aren't really found at all or aren't really
4
found at high numbers in Upper Dresden Island
5
Pool, that if you address what you believe is
6
limiting there, you will find more of them
7
occurring up in that area after that is
8
addressed.
9
MS. FRANZETTI: And you would agree
10
with me, though, that if you are wrong about
11
what is limiting them, we won't see these
12
probable or likely improvements by requiring
13
effluent cooling, correct?
14
MR. SMOGOR: Yes. If we're wrong --
15
I'd also like to add that when we're setting
16
standards about what a water should be to
17
allow a particular situation, meeting just
18
one of those standards doesn't guarantee that
19
you're going to get the ultimate goal that
20
you're shooting for.
21
These are requirements kind of one
22
at a time requirements that in total must
23
exist in order to allow attainment of the
24
potential.
L.A. REPORTING (312) 419-9292
117
1
MS. FRANZETTI: I thought we've just
2
spent a fair amount of time today with the
3
Agency saying that in Upper Dresden Pool it's
4
temperature.
5
MR. SMOGOR: It's primarily
6
temperature. And you're right, if we're
7
wrong about what the primary one is, then I
8
agree with the way you stated it.
9
But I don't want to say
10
temperature has been identified as the sole,
11
only limitation. I can't say that based on
12
the information.
13
MR. SULSKI: We also discussed the
14
interaction between temperature and oxygen.
15
MS. FRANZETTI: I understand.
16
MR. SULSKI: So if you reduced the
17
temperature, it's possible DO will raise as
18
well just by reducing temperature.
19
MS. FRANZETTI: I understand. I
20
understand. That's possible, other things
21
are likely, but we don't really know.
22
MR. SULSKI: The other thing I wanted
23
to point out was that, you know, we have the
24
Upper Dresden Island Pool, we also have a
L.A. REPORTING (312) 419-9292
118
1
Dresden Island Pool, we have downstream of
2
I-55 which goes all the way to the Dresden
3
Lock and Damn, correct?
4
MS. FRANZETTI: Correct.
5
MR. SULSKI: We also have the very
6
large Kankakee River coming into that system.
7
MS. FRANZETTI: Right. And below I-55
8
we've got cooler waters, don't we?
9
MR. SULSKI: I guess my point is that
10
there's a pool of species diversity out there
11
that could contribute to a re-population of
12
this area with an aquatic life that is
13
commensurate with what we expect should occur
14
here.
15
MS. FRANZETTI: I understand. But I
16
think it's important as well to acknowledge
17
that below I-55 is general use thermal
18
standards, right, that's what's applicable
19
there?
20
MR. SULSKI: Yes.
21
MS. FRANZETTI: Today?
22
MR. SULSKI: Yes.
23
MS. FRANZETTI: And has been for
24
years, correct?
L.A. REPORTING (312) 419-9292
119
1
MR. SULSKI: Yes.
2
MS. FRANZETTI: And those are cooler
3
temperatures, correct?
4
MR. SULSKI: Yes.
5
MS. FRANZETTI: So what are all the
6
species that exist below I-55 bridge that
7
don't exist in what here we're calling Upper
8
Dresden Island Pool above I-55?
9
Have we done that comparison to
10
see what are all the additional species that
11
are there in the cooler general use waters
12
but are not up in the Upper Dresden Island
13
Pool waters that I guess are among those you
14
may feel are likely to come upstream?
15
MR. SMOGOR: We haven't examined
16
specifics. And when I say coming from
17
downstream, I'm not only limiting that to the
18
Des Plaines River below I-55 as the only
19
source of coming from downstream.
20
So there is the possibility for
21
fish to move from the Kankakee River system
22
all the way up because there's a connectivity
23
with the Kankakee River system, as well.
24
MS. FRANZETTI: Mr. Smogor, what I'm
L.A. REPORTING (312) 419-9292
120
1
trying to I guess underscore is that if
2
temperature were such a major constraint,
3
then wouldn't I be seeing a distinct
4
difference below I-55 bridge versus above
5
I-55 bridge because, if anything, isn't there
6
in that area immediately downstream of I-55
7
bridge somewhat better habitat than exists in
8
Upper Dresden Island Pool?
9
MR. SMOGOR: I don't know. I don't
10
know how much better it is below I-55.
11
MS. FRANZETTI: Would you agree it's
12
no worse?
13
MR. SMOGOR: Yeah. I know that the
14
UAA, the Attachment A makes some of those
15
comparisons. I don't know offhand, so if we
16
wanted to check that, we can check some of
17
the information. Although, that is only
18
based on a limited set of habitat
19
information.
20
MS. FRANZETTI: I've been asked just
21
as a quick follow-up when Mr. Sulski referred
22
to after a CSO event cooling the waters by
23
four to five degrees, were you talking in
24
terms of Celsius or Fahrenheit?
L.A. REPORTING (312) 419-9292
121
1
MR. SULSKI: Either one. There's even
2
more substantial drops from that. So if
3
we're not at the Fahrenheit scale, let's
4
bounce it to centigrade.
5
MS. FRANZETTI: So it's four to five
6
centigrade?
7
MR. SULSKI: Yeah. I mean, there are
8
significant drops in this temperature that
9
result in thermal stress.
10
MR. ETTINGER: Can I just ask one
11
question as a follow-up. Have you ever
12
looked at the temperatures that exist below
13
the I-55 bridge and compared them with the
14
aversion temperatures that Chris Yoder
15
presented in his report?
16
MR. TWAIT: No, I don't believe we
17
have.
18
MR. ETTINGER: Thank you.
19
HEARING OFFICER TIPSORD: For
20
clarification, Chris Yoder's report?
21
MR. TWAIT: Exhibit 15?
22
HEARING OFFICER TIPSORD: Exhibit 15?
23
MR. ETTINGER: Yes.
24
HEARING OFFICER TIPSORD: Exhibit 15.
L.A. REPORTING (312) 419-9292
122
1
Thank you.
2
MS. FRANZETTI: Moving on to question
3
seven. At Page 18 of the Sulski pre-filed
4
testimony it is stated that, quote,
5
temperature constraints could be overcome
6
through additional effluent cooling at the
7
five Midwest Generation electrical generating
8
stations, end quote. Explain how much
9
additional cooling is needed. And I don't
10
know that -- I think this last part of the
11
question has probably been answered already
12
by our last dialogue here so can you give us
13
some explanation of what you're referring to
14
as the additional effluent cooling at the
15
five Midwest Generation plants?
16
MR. TWAIT: The amount of cooling
17
would just depend on the amount of cooling
18
that would be required to meet the water
19
quality standards outside of any mixing zone.
20
MS. FRANZETTI: Okay. So that's how
21
that phrase was used was just Midwest Gen is
22
going to have to add enough additional
23
cooling to get down to what the roughly
24
thermal water quality standards are, assuming
L.A. REPORTING (312) 419-9292
123
1
no mixing zone?
2
MR. TWAIT: I don't know that I would
3
say assuming no mixing zone.
4
MS. FRANZETTI: I was just trying to
5
keep it simple, but that's fine, I understand
6
a mixing zone may apply. But that's
7
basically what your -- your statement there,
8
you didn't have in mind specific technology,
9
a specific delta drop in the current effluent
10
discharge temperatures, you were just
11
referring to the fact that you got to add
12
enough to come into compliance with the
13
proposed thermal water quality standards?
14
MR. TWAIT: I believe that's all the
15
cooling that would be necessary.
16
HEARING OFFICER TIPSORD: Mr. Harley,
17
you have a question?
18
MR. HARLEY: Before we leave the topic
19
of temperature block and the way it can
20
affect water quality, one of the questions I
21
wanted to ask you is based on your response
22
that this would be most prominent in periods
23
of time of time July, August. Is there also
24
a temperature block phenomena that might
L.A. REPORTING (312) 419-9292
124
1
exist during colder weather periods? I'm
2
reflecting on Chris Yoder's testimony that
3
there could be thermal shock to fish that are
4
preferentially attracted to warmer waters
5
near thermal discharge points and that if
6
that thermal discharge is then stopped, the
7
fish can actually suffer as a result of that
8
dramatic change in temperature. Does the
9
concept of temperature block apply during
10
winter periods, as well?
11
MR. DIMOND: Object on the basis of
12
foundation. There's no showing that this
13
witness has done any study or has any factual
14
basis to testify about a temperature block or
15
that he has any factual basis to offer an
16
opinion about whether or not there's a
17
temperature block, whatever that means,
18
during a cold weather period.
19
We've got a real pattern
20
developing here where any time the Agency
21
doesn't want to offer an opinion, they say we
22
haven't collected the data, we can't answer.
23
Any time they want to offer an opinion, even
24
though they don't have data, they offer it up
L.A. REPORTING (312) 419-9292
125
1
and that's a real problem with the record.
2
MS. WILLIAMS: I don't think that's a
3
fair characterization. I think we're trying
4
to answer everyone's questions as best we
5
can.
6
HEARING OFFICER TIPSORD: Mr. Harley,
7
would you like to rephrase because we have
8
been talking about blockages?
9
MS. WILLIAMS: Is this question
10
primarily about the concept of thermal -- can
11
we take the term block out of it?
12
HEARING OFFICER TIPSORD: You know
13
what, let's do it this way, and the Board is
14
well aware that this is merely the opinion of
15
the witness, could you answer Mr. Harley's
16
question?
17
MR. SULSKI: Could you repeat the
18
question, please?
19
MR. HARLEY: Could you repeat that
20
question?
21
(Whereupon, the requested
22
portion of the record
23
was read accordingly.)
24
MR. SULSKI: The short answer is I
L.A. REPORTING (312) 419-9292
126
1
don't know whether that phenomena occurs
2
here. I don't have any observations of it.
3
MR. HARLEY: Thank you.
4
MS. FRANZETTI: One might think that
5
this is not a good breaking point, but I
6
think it might be in the sense that my next
7
question, question eight, is based on the
8
existence of certain impairments, non- to
9
partial attainment of the uses. And what I
10
would like to do before getting to that
11
question is have the Agency for all of us
12
take us through just a bit of the portion of
13
the filing last week where it -- this was in
14
response to a request from the first hearing
15
where they have information now on I believe
16
the specific assessment information for the
17
streams in question here as well as what are
18
the impairments that have been noted.
19
Am I right, the Agency witnesses,
20
that this portion of your filing last week,
21
Appendix B1, specific assessment information
22
for streams 2006, was intended to respond to
23
that request for information about most
24
recently identified impairments?
L.A. REPORTING (312) 419-9292
127
1
HEARING OFFICER TIPSORD: The title
2
page on that is Information on Impaired
3
Segments of the Lower Des Plaines River and
4
the CAWS.
5
MS. FRANZETTI: Yes. That would be
6
helpful if I would have said that. Thank
7
you.
8
HEARING OFFICER TIPSORD: You know
9
what, for ease if we're going to be asking
10
some questions about this and talking about
11
this, why don't we go ahead and mark this as
12
Exhibit 34 as well.
13
MS. FRANZETTI: Right.
14
HEARING OFFICER TIPSORD: It's
15
Information on Impaired Segments of Lower
16
Des Plaines River and CAWS and there are
17
several pages attached. We'll mark that as
18
Exhibit 34.
19
(Document marked as
20
Exhibit No. 34 for
21
identification,
22
03/11/08.)
23
MS. FRANZETTI: And I am not implying
24
that we have to go through every line of this
L.A. REPORTING (312) 419-9292
128
1
chart because obviously the chart includes
2
waters that have nothing to do with this
3
waterway, doesn't it, in part?
4
MR. ESSIG: Yes.
5
MS. FRANZETTI: Because of just how
6
they're listed in your report, but I think
7
because of that, that's what I'm getting at.
8
If we could go through and identify for
9
people what names on the chart are associated
10
with water segments that are part of this UAA
11
rulemaking, that's what I would ask the
12
Agency to do.
13
MR. ESSIG: The list is in
14
alphabetical order, so I will go through the
15
names of the reaches that we're talking
16
about.
17
MS. FRANZETTI: Exactly. And then if
18
you could just be prepared to take an example
19
line across the chart to explain what the
20
codes mean, how does someone understand what
21
the findings are with respect to any
22
impairments or causes of impairments for a
23
particular waterway so we just all understand
24
how to use the information on those charts.
L.A. REPORTING (312) 419-9292
129
1
MR. ESSIG: Okay.
2
MS. FRANZETTI: Thanks.
3
HEARING OFFICER TIPSORD: Are you
4
going to need a few minutes to do that?
5
MR. ESSIG: This could take a while,
6
yes.
7
HEARING OFFICER TIPSORD: But I
8
mean --
9
MS. WILLIAMS: No. He's ready.
10
HEARING OFFICER TIPSORD: Okay. Well,
11
what I'm thinking is if we break now and try
12
to go to the cafeteria or any other
13
restaurants around, it might be insane. So
14
why don't we go ahead and do that and we'll
15
get through that with Mr. Essig and then take
16
a break about 12:15, 12:30 and get out that
17
flow.
18
MR. ESSIG: First, let me just explain
19
the --
20
HEARING OFFICER TIPSORD: Mr. Essig,
21
remember you need to keep your voice up.
22
MR. ESSIG: If you turn to the second
23
page, it's labeled Appendix B1, that will
24
give you the different, if you will, codes,
L.A. REPORTING (312) 419-9292
130
1
the different types of things that are
2
included in this tabulation.
3
MS. FRANZETTI: And Mr. Essig, can I
4
just help you along? In the upper left under
5
use ID, that tells you what is the use
6
classification for the given waterway?
7
MR. ESSIG: That's correct.
8
MS. FRANZETTI: And if you go over to
9
the right of that, the support code, can you
10
just explain what support codes mean?
11
MR. ESSIG: The support codes
12
basically mean -- F means that it's fully
13
meeting the designated use; N is not
14
supporting the designated use; I means
15
insufficient information; and X indicates
16
that it was not assessed.
17
MS. FRANZETTI: And then could you
18
briefly explain what the CAWS IDs are that
19
are listed in the remaining two boxes below
20
that on this Page 1, Appendix B1.
21
MR. ESSIG: The individual CAWS IDs
22
indicate either a chemical or physical types
23
of causes that can contribute to the degree
24
of nonsupport. They are based on, in many
L.A. REPORTING (312) 419-9292
131
1
cases, chemical parameters that do have water
2
quality standards either for general use or
3
for indigenous aquatic life.
4
It also includes other parameters
5
that do not have standards that we feel may
6
contribute to cause of nonsupport. As an
7
example, phosphorous -- I'll leave it at that
8
for the time being rather than get bogged
9
down on this.
10
If you want to go to the next
11
page, on the next page it has source ID and
12
these are codes that are used to identify
13
possible sources of these causes of
14
impairment.
15
And then when you get into the
16
actual table itself, you'll notice that on
17
the left-hand side of the table it's got the
18
name of the water body, the ten digit HUC
19
code, hydrologic unit code, H-U-C code, the
20
IEPA basin is just a code for the -- you have
21
a statewide map in this report that has the
22
entire state and it has the watersheds
23
delineated and those numbers refer to those
24
watersheds, the assessment unit ID is the
L.A. REPORTING (312) 419-9292
132
1
actual ID of that stream segment that was
2
assessed and the size in miles indicates the
3
size of that segment. The category I believe
4
is the 303D list category.
5
MR. ETTINGER: Is this from the 303D
6
list?
7
MR. ESSIG: This is from the 2006
8
integrated report in the appendix. This is
9
the actual assessments of all the water
10
bodies. The 303 list itself is actually in
11
another table within that report.
12
MR. ETTINGER: But this is part of the
13
integrated 305B, 303D report?
14
MR. ESSIG: Yes, it is. And then the
15
next column is the designated uses with the
16
attainments, so you have the codes attached
17
to that. And as I said before, an N in front
18
of the code means that it's not supporting, F
19
means it is supporting the use and X means
20
that it was not assessed.
21
So if we go down on Page 14 that
22
we're on, there's the Calumet River that is
23
indicated on here and the assessment ID is
24
ILHAA-01 and it indicates for that water body
L.A. REPORTING (312) 419-9292
133
1
that that is a general use waterway and it
2
was indicated as being nonsupport for aquatic
3
life. The code 583 indicates fish
4
consumption use. The N in front of that
5
means nonsupport to fish consumption.
6
Then 585 is the primary contact
7
use. That's also indicated as not supporting
8
its use.
9
Then the code for 586, secondary
10
contact, that was not assessed.
11
And the final code, 590, is
12
esthetic quality and that was not assessed.
13
And then if you go to the next
14
column, the causes of the nonsupport are
15
listed. So then you'd have to go to cause ID
16
table. So 375 cause is silver; 441 is pH;
17
462, phosphorous; 348 is PCBs; and 400 is
18
fecal coliform.
19
What this doesn't point out
20
necessarily is, you know, which causes are
21
contributing to which use impairment. But
22
the 400 fecal coliform obviously is for
23
primary contact. The other causes listed
24
would be for the aquatic life. The listing
L.A. REPORTING (312) 419-9292
134
1
of PCBs would be listed for fish consumption.
2
And then the following columns are the
3
potential sources and you have to go to the
4
source table for that.
5
MS. FRANZETTI: And those are sources
6
of the causes?
7
MR. ESSIG: Yes. We think these
8
sources might be contributing these causes to
9
the waterway.
10
MS. FRANZETTI: Right.
11
MR. ESSIG: There isn't a definitive
12
analysis of that. Twenty-three is combined
13
sewer overflows; 62 is industrial point
14
source discharge; 177 is urban runoff storm
15
sewers; and 140 is source unknown.
16
And, again, within this table, the
17
sources that are causes are not linked.
18
MS. FRANZETTI: Can you -- and I'm
19
open to suggestions if there's an easier way,
20
but would it take much time for you to go
21
through these pages and note for us which are
22
the names that are within the CAWS and the
23
Lower Des Plaines UAA areas?
24
MR. ESSIG: Yes, I can do that. You
L.A. REPORTING (312) 419-9292
135
1
want to go page by page?
2
MS. FRANZETTI: I think that's maybe
3
the only way that we can delineate which
4
portions of this are relevant to this
5
proceeding.
6
MR. ESSIG: Okay. On Page 14 we have
7
the Calumet River. Do you want me to give
8
you the assessment unit ID?
9
MS. FRANZETTI: No. I think we can
10
all just mark it if you give us the name.
11
MR. ESSIG: Okay. The Calumet Sag
12
Channel.
13
MS. FRANZETTI: Both entries, there's
14
two?
15
MR. ESSIG: Right. Then we'd have to
16
go to the next page, it would be Page 17,
17
Chicago Sanitary and Ship Canal, there are
18
three entries there for that. Then below
19
that is the Chicago River.
20
And then we have to go to the next
21
page. We get to the Des Plaines River, but
22
I'm going to have to tell you which segment
23
IDs are for that reach.
24
MS. FRANZETTI: Okay.
L.A. REPORTING (312) 419-9292
136
1
MR. ESSIG: The listing for the
2
Des Plaines River on Page 23 are all general
3
use waters, they're not within the study
4
area. Page 24, segment -- this is still on
5
the Des Plaines River, assessment unit ID
6
ILG-23, that is within the Brandon Pool. And
7
ILG-12 is within the Upper Dresden Island
8
Pool. The remaining Des Plaines River sites
9
on that page were all general use.
10
MS. FRANZETTI: Okay.
11
MR. ESSIG: And not within the UAA
12
area.
13
MR. DIMOND: Could I ask a question
14
about that? Mr. Essig, when you say that the
15
ILG-12 is within the Upper Dresden Island
16
Pool, is that because the assessment is a
17
specific point or is it intended to cover the
18
entire reach?
19
MR. ESSIG: There are stations within
20
those reaches. The station itself might be a
21
specific point, but the assessment is
22
considered to take into account that whole
23
assessment unit.
24
MR. DIMOND: And where is ILG-12
L.A. REPORTING (312) 419-9292
137
1
within the Upper Dresden Island Pool?
2
MR. ESSIG: That is -- I believe that
3
one is basically just downstream of the
4
tailwater area. But other stations may have
5
been used within that segment for the
6
assessment.
7
But there's -- let me try to
8
explain it. In many cases the assessment
9
unit ID is based on an existing station code.
10
So there is an actual station code called
11
G-12. In this case, that segment unit was
12
named after that station, but we have other
13
stations within that segment with a different
14
station code.
15
MR. DIMOND: So the assessment that's
16
reflected in here, even though it's labeled
17
as ILG-12, may incorporate data from other
18
stations within the Upper Dresden Island
19
Pool?
20
MR. ESSIG: Right. Then I think we're
21
on to Page 36, Grand Calumet River. That
22
would be it for that page. Page 51, Little
23
Calumet River North, there's two entries for
24
that. There are two entries here for the
L.A. REPORTING (312) 419-9292
138
1
Little Calumet River South, but they are not
2
within the CAWS.
3
And then we go on to the next
4
page, Page 64, North Branch Chicago River,
5
the first entry is part of CAWS, assessment
6
unit ID ILHCC-02.
7
Then you skip one and you go to
8
the next, North Branch Chicago River, which
9
will be ILHCC-08.
10
Go on to the next page, 65, North
11
Shore Channel. Page 77, South Branch Chicago
12
River. And then the last page, south fork of
13
the South Branch Chicago River. And I
14
believe that should be all of them.
15
MS. FRANZETTI: Thank you, Mr. Essig.
16
That's very helpful.
17
MR. ESSIG: I might want to add one
18
thing. I just noticed something here and I'm
19
not too sure why this is the case. On Page
20
65, the North Shore Channel is on there, but
21
it's only giving one segment, ILHCCA-04, and
22
then there is another segment, ILHCCA-02, and
23
I'm not too sure why that's not showing up on
24
this table. I'll have to check on that.
L.A. REPORTING (312) 419-9292
139
1
MS. FRANZETTI: The record can always
2
be supplemented if there needs to be an
3
additional page to cover that.
4
DR. GIRARD: Can I ask a question?
5
Mr. Essig, I have a quick question. Is this
6
database from the IEPA's website?
7
MR. ESSIG: It's from the report that
8
is available on the website. Unfortunately,
9
the website does not contain the appendix
10
which is what this is.
11
DR. GIRARD: Basically my question is
12
can you give us the address to be able to
13
look at it?
14
MR. SMOGOR: The website at one point
15
has carried those appendices as part of the
16
report. They were there. It came to my
17
attention maybe about a couple weeks ago that
18
the appendices -- I think they're redoing
19
website stuff is about the best I can put it
20
and I think somehow the appendices were lost.
21
Typically, they're there and they
22
should be there so we're going to have to --
23
we're looking into getting those appendices
24
posted back to that website where they should
L.A. REPORTING (312) 419-9292
140
1
be.
2
DR. GIRARD: Thank you. Let us know
3
when do you and how we can find it.
4
MR. SMOGOR: Okay.
5
MS. FRANZETTI: Okay. I'm going to
6
modify question eight in the hope of
7
eliminating what may be factual disagreement
8
between us and just ask the question. Does
9
the Agency have a watershed management plan
10
in place for the -- let's take it first for
11
the Lower Des Plaines River to address any of
12
the non- or partial impairments?
13
MR. ESSIG: I'm not aware of specific
14
watershed plans for these waters at this
15
time.
16
MS. FRANZETTI: So the answer would be
17
the same if I enlarge the question to include
18
any of these UAA waters?
19
MR. ESSIG: Yes.
20
MS. FRANZETTI: Okay. Moving on to
21
Roman eight, Aquatic --
22
HEARING OFFICER TIPSORD: If you're
23
done with question eight let's go ahead
24
and -- it's about 20 after, that should give
L.A. REPORTING (312) 419-9292
141
1
us enough time. Let's try and get back by
2
about 20 after 1:00.
3
(Whereupon, after a short
4
break was had, the
5
following proceedings
6
were held accordingly.)
7
HEARING OFFICER TIPSORD: Thank you
8
all for your promptness and your return. I
9
appreciate it. I realize that although we
10
need no introduction for most of the panel,
11
I'm sure, I forgot to introduce who is up
12
here today from the Board.
13
So before we start, to my
14
immediate right is Dr. Tanner Girard, the
15
presiding Board member. To my immediate left
16
is Andrea Moore, one of our Board members and
17
to her left is Thomas Johnson, also a Board
18
member. To Dr. Girard's immediate right is
19
Anand Rao from our technical unit and to his
20
immediate right is usually Alisa Liu.
21
MR. RAO: She stepped out.
22
HEARING OFFICER TIPSORD: She stepped
23
out. And at the end of the table today I
24
told you yesterday that our extern, Walter
L.A. REPORTING (312) 419-9292
142
1
Tirsch, would be joining us and this is
2
Walter. And I think Christine is going to
3
try and come back this afternoon, too, so
4
you'll see her again this afternoon. And
5
with that, Ms. Franzetti, I think we're back
6
with you.
7
MS. FRANZETTI: Okay. And just so the
8
next questioner after me knows where I'm
9
stopping because I do think at least one
10
other questioner has more, quote, unquote,
11
general questions is what we're calling them,
12
which I think at this point is anything other
13
that getting into the proposed standards
14
themselves, I will stop after my section on
15
contaminated sediments, Roman nine, and allow
16
whoever is left that has general questions to
17
ask them, if that's consistent with your
18
understanding.
19
HEARING OFFICER TIPSORD: That's fine.
20
MS. FRANZETTI: Okay. I think we
21
stopped with Roman eight, Aquatic Invasive
22
Species Barrier. In the Statement of Reasons
23
at Page 50, the Illinois EPA describes the,
24
quote, aquatic invasive species dispersal
L.A. REPORTING (312) 419-9292
143
1
barrier, end quote, installed in the CSSC at
2
Romeoville as follows: Quote, the barrier
3
involves applying an electrical charge
4
directly to the water at a rate intended to
5
prevent any fish from passing alive, end
6
quote. While the statement notes the intent
7
to prevent fishing from pass alive, does the
8
Illinois EPA know from those responsible for
9
the installation and operation of the barrier
10
whether the barrier does effectively prevent
11
all fish from passing alive?
12
MR. SULSKI: I don't know whether it
13
prevents all fish from passing alive.
14
MS. FRANZETTI: Okay. Question two is
15
already asked. Moving on to Question 1 and I
16
will note the pre-filed question cites the
17
chromium, but that should be cadmium so I'll
18
read it in that corrected way.
19
On Page 67 of the Statement of
20
Reasons the Illinois EPA notes that it
21
appears barge traffic which suspends the
22
sediments in the waterways contributes to
23
causing exceedances of the cadmium chronic
24
water quality standard. Did the Agency
L.A. REPORTING (312) 419-9292
144
1
review the effect of sediment resuspension on
2
aquatic life in the waterway?
3
MR. SULSKI: Just in a cursory
4
discussion amongst the stakeholders, that's
5
it.
6
MS. FRANZETTI: And that would
7
probably then be reflected in the minutes
8
that have been presented already in the
9
record?
10
MR. SULSKI: It may be, yes.
11
MS. FRANZETTI: Okay. Moving on to
12
question two. With respect to the proposed
13
maintenance of the Section 302.403 narrative
14
standard for unnatural sludges, even though
15
the existing conditions in the waterway
16
violate the standard due to the presence of
17
contaminated sediments, on Page 55 of the
18
Statement of Reasons the Agency states it
19
intends to apply the standard to, quote,
20
prevent additional accumulations of sediment.
21
Would you please first define unnatural
22
sludge or bottom deposits and clarify the
23
sources of such materials?
24
MR. SULSKI: Part of it is defined in
L.A. REPORTING (312) 419-9292
145
1
the 302.403 right after unnatural sludge or
2
bottom deposits, and that would be floating
3
debris, visible oil; that encompasses that.
4
In addition, solids associated
5
with discharges from municipal wastewater
6
treatment plants, combined sewer overflows,
7
floatable materials that are associated
8
mainly with those sources, sanitary debris.
9
MS. FRANZETTI: Can you explain in
10
greater detail how this application -- and by
11
that I'm referring to that quoted language to
12
prevent additional accumulations of sediment
13
will be applied?
14
MR. SULSKI: Well, from a field
15
investigatory compliance framework, if a
16
source was found to be discharging floatables
17
and settleables and it resulted in the
18
accumulation of same within the waterway,
19
that would be what's called a violation of
20
this rule.
21
MS. FRANZETTI: So would that make CSO
22
discharges a violation of that rule?
23
MR. SULSKI: It would.
24
MR. TWAIT: It would -- we would apply
L.A. REPORTING (312) 419-9292
146
1
it the same as we do general use where if we
2
see a problem that can be remedied or if we
3
see a problem, we will investigate further
4
and use that for a violation notice.
5
MS. FRANZETTI: So would an entity
6
like the city of Chicago, if it continues to
7
have CSO discharges which may have floatables
8
and other type materials in them as you've
9
described, fall within the meaning of
10
unnatural sludge or bottom deposits? Would
11
they risk violating this standard if its
12
applied to the UAA waters?
13
MR. TWAIT: I think they would,
14
especially if they were not doing the nine
15
minimum controls to keep that at a minimum.
16
MS. FRANZETTI: Would compliance with
17
the nine minimum controls be a defense then
18
to an alleged violation of this section?
19
MR. TAIT: I'm not in the compliance
20
section so I'm not qualified to say.
21
MR. SULSKI: It could be. It's a
22
fairly complicated and time-extended
23
situation in the Chicago metropolitan area
24
due to TARP and time it's going to take to
L.A. REPORTING (312) 419-9292
147
1
complete TARP, which is the long term control
2
plan for the whole Chicago metropolitan area.
3
MS. FRANZETTI: Let me pick up the
4
second part of 2B there. Do you think the
5
language of 302.403 clearly expresses your
6
stated limitation to the scope of its
7
applicability, namely only to prevent
8
additional accumulations of sediment?
9
MS. WILLIAMS: No.
10
MS. FRANZETTI: Is the Agency going to
11
consider proposing a revision to that section
12
to --
13
MS. WILLIAMS: We would consider
14
proposals that are thrown out by others, but
15
we couldn't come up with one that we felt was
16
consistent with federal law.
17
MS. FRANZETTI: Moving on to question
18
3. On Page 55 of the Statement of Reasons
19
the Illinois EPA states the, quote, historic
20
sediment pollution presents an attainability
21
concern for some types of aquatic life in
22
these waters. First, what's meant by the
23
term attainability concern?
24
MS. WILLIAMS: I think we may have
L.A. REPORTING (312) 419-9292
148
1
tried to talk about this yesterday, but I
2
think that is misleading the way it's written
3
there that this was focused purely on
4
pointing out that we recognized there's
5
historic sediment pollution there and that
6
there's a compliance concern with the
7
standard as it's written.
8
I don't think attainability
9
concern for aquatic life is a -- I think it's
10
a poor choice of words because that's not
11
really what we were looking at.
12
MS. FRANZETTI: Okay. So the Agency
13
does not believe that historic sediment
14
pollution presents any problem for certain
15
types of aquatic life in these waters?
16
MS. WILLIAMS: That was not what was
17
meant by this statement. I guess they can
18
answer the technical piece of that question.
19
MR. SULSKI: Back to some of the early
20
testimony that we don't have enough
21
information to make a judgment from a
22
toxicity standpoint, however, we did indicate
23
that from a habitat structural standpoint
24
that we recognize it results in a poorer
L.A. REPORTING (312) 419-9292
149
1
quality habitat.
2
MS. FRANZETTI: So to the extent -- if
3
I understand correctly then, so to the extent
4
that poorer habitat is considered as part of
5
the attainability analysis, it is relevant to
6
that review?
7
MR. SULSKI: It's relevant to
8
evaluating habitat.
9
MS. FRANZETTI: I'm going to skip over
10
four. I think just based on your prior
11
testimony I don't need to ask that question.
12
I'm done.
13
HEARING OFFICER TIPSORD: Okay. Then
14
that takes us -- we're stopping short of
15
actually discussing the standards in this
16
area of questions. Ms. Franzetti, you're
17
stopping --
18
MS. FRANZETTI: I'm stopping with my
19
questions that now get into the specific
20
chemicals, including temperature in that
21
category for purposes of that shorthand
22
reference, my questions on the specific
23
standards proposed for these uses.
24
HEARING OFFICER TIPSORD: With that in
L.A. REPORTING (312) 419-9292
150
1
mind, does Flint Hills have any additional
2
questions short of that mark?
3
MR. SAFLEY: Well, I don't know. I
4
apologize, I didn't know that we were
5
stopping short of that mark, so apparently I
6
missed that.
7
HEARING OFFICER TIPSORD: You know
8
what, I think Citgo does, which would be
9
next, if you don't mind, and then we can come
10
back.
11
MR. SAFLEY: Of course. That's fine.
12
HEARING OFFICER TIPSORD: I believe
13
that's who's next on the list. Let me double
14
check.
15
(Brief pause.)
16
HEARING OFFICER TIPSORD: Yes.
17
Mr. Fort, will you please tell us where
18
you're starting with pre-filed questions?
19
MR. FORT: Thank you. Jeffrey Fort on
20
behalf of Citgo. I have a few questions that
21
were left out of my Roman two of the
22
pre-filed questions. Many of those -- some
23
of those I was able to ask back in Chicago.
24
Some I think have been answered by others.
L.A. REPORTING (312) 419-9292
151
1
And if you think that they have been asked
2
and answered, I know you will say so.
3
I also have a couple follow-up
4
questions to some of the documents that the
5
Agency filed last week at least as they apply
6
to Citgo. And, again, because Citgo is a
7
discharger to the Chicago Sanitary and Ship
8
Canal, I'm really focusing my questions only
9
on those so-called Use B waters today.
10
Most of my questions start off
11
with the premise stated on the bottom of Page
12
3 of the prepared pre-filed questions about a
13
summary of the Agency findings and the
14
proposal to the Board.
15
Madam Hearing Officer, from an
16
interest of the record, would you like me to
17
read that or should I just go ahead?
18
HEARING OFFICER TIPSORD: Why don't
19
you read it for the record?
20
MR. FORT: Thank you. In our review
21
of the Agency filings, the Agency appears to
22
find and recommend to the Board that the
23
Chicago Sanitary and Ship Canal from its
24
confluence of the Cal Sag Channel to its
L.A. REPORTING (312) 419-9292
152
1
confluence of the Des Plaines River and the
2
Lower Des Plaines River from its confluence
3
with the Chicago Sanitary and Ship Canal to
4
the Brandon Road Lock and Damn should be
5
categorized, quote, non-recreational use,
6
end quote, water, which precludes primary
7
contact, incidental contact and non-contact
8
recreation due to physical or low-flow
9
conditions or other restrictions, Statement
10
of Reasons Page 42.
11
The Agency also recommends
12
grouping the ship canal and the Lower Des
13
Plaines River from its confluence with the
14
canal to the Brandon Road Lock and Damn as
15
being part of the category called Chicago
16
Area Waterway System and Brandon Pool Aquatic
17
Life Use B Waters on Pages 46 to 47.
18
With those findings and
19
recommendations, what is the justification
20
for the following -- in light of the
21
following questions.
22
First, the basis for taking
23
directly from the parallel provisions in
24
Section 302.208 which deals with general use
L.A. REPORTING (312) 419-9292
153
1
waters, requirements to adopt acute
2
standards, chronic standards and human health
3
standards and including them in a new
4
302.407?
5
MS. WILLIAMS: I have that as asked
6
and answered in Chicago, but we can do it
7
again if you want.
8
MR. FORT: If you want to do it.
9
MS. WILLIAMS: I think it's very
10
short.
11
MR. TWAIT: If your question is asking
12
why we didn't reference 302.208, standards in
13
our proposal, it was based on a management
14
decision to have stand-alone regulations.
15
MR. FORT: My question is a little bit
16
different. My question is why are you now
17
including those three criteria as part of the
18
Aquatic Life Use B Water Quality
19
Requirements?
20
MR. TWAIT: It's all based on
21
protecting aquatic life.
22
MR. FORT: Notwithstanding the
23
findings that you made here about the limited
24
habitat and the life with respect to this
L.A. REPORTING (312) 419-9292
154
1
part of the Chicago Sanitary and Ship Canal?
2
MR. TWAIT: Yes.
3
MR. FORT: Maybe then I should ask
4
questions on the document that you submitted.
5
And Madam Hearing Officer, I certainly didn't
6
bring enough copies for everybody in the
7
room.
8
HEARING OFFICER TIPSORD: If it's from
9
the March 4th filing, if you could show me
10
which one it is, we have some of those with
11
us.
12
MR. FORT: It is one of the first
13
ones.
14
HEARING OFFICER TIPSORD: These have
15
already been put in as an exhibit. Hang on,
16
let me tell you which exhibit. I think
17
Exhibit 29, yes, the UAA Factor Application
18
to CAWS and Lower Des Plaines River is
19
Exhibit 29.
20
MR. FORT: Do you have a copy there
21
handy?
22
MR. SMOGOR: Yes.
23
MR. FORT: And this is a two-page
24
document -- or a one-page front and back and
L.A. REPORTING (312) 419-9292
155
1
then a second page.
2
HEARING OFFICER TIPSORD: Yeah.
3
MR. FORT: I'm not sure when the
4
Agency is answering this, but as I read
5
through the first page here there are nine
6
segments, one of which is called the Lower
7
CSSC or the Lower Chicago Sanitary and Ship
8
Canal; is that correct?
9
MR. SULSKI: Correct.
10
MR. FORT: Okay. And it is the only
11
category on this first page that is
12
non-recreational?
13
MR. SULSKI: Correct. Yes.
14
MR. FORT: And these are generally
15
segments that are upgradient of the Chicago
16
Sanitary and Ship Canal, mostly in the
17
Chicago River?
18
MR. SULSKI: The ones above that?
19
MR. FORT: On this first page, yes.
20
MR. SULSKI: Yes.
21
MR. FORT: And on the next page this
22
is more water body segments that are --
23
including the Sanitary Ship Canal that are
24
also upgradient of the Chicago Sanitary and
L.A. REPORTING (312) 419-9292
156
1
Ship Canal down to the Brandon Lock and Damn
2
except that these are on the Calumet system,
3
correct?
4
MR. SULSKI: Correct.
5
MR. FORT: Okay. And, again, the
6
Chicago Sanitary and Ship Canal segment here
7
is the only one that is non-recreational?
8
MR. SULSKI: It's not a -- On Page 2,
9
on the second page?
10
MR. FORT: Yes.
11
MR. SULSKI: I don't see a Chicago
12
Sanitary and Ship Canal.
13
MR. FORT: Looking at the bottom set
14
of brackets.
15
MR. SULSKI: Yes. I'm sorry, I
16
apologize.
17
MR. FORT: Did I correctly say that
18
this is the -- on the second page, that these
19
are all Calumet River system segments going
20
to its confluence of the ship canal?
21
MR. SULSKI: I need to clarify. This
22
is where you point out CSSC on the bottom
23
row?
24
MR. FORT: Yes.
L.A. REPORTING (312) 419-9292
157
1
MR. SULSKI: That just designates
2
where this LDPR, Lower Des Plaines-Brandon
3
starts and then Brandon Lock and Damn is
4
where it ends. So it's not a Sanitary Ship
5
Canal reach, this is the Lower Des Plaines
6
River-Brandon Pool.
7
MR. FORT: Thank you for clarifying
8
that. So going back to the first sheet of
9
the page, the Lower Chicago Sanitary and Ship
10
Canal goes down to the Lower Des Plaines Lock
11
and Damn and then on the next page it
12
continues on down to the Brandon Lock and
13
Damn or are these overlapping or is this just
14
a nomenclature difference between the two
15
bottom segments on the chart?
16
MR. SULSKI: Let's go to the first
17
page, the lower CSSC begins -- if you look at
18
the column heading, it begins at the Cal Sag
19
Channel, CSC, and it ends at the lower
20
Des Plaines River-Brandon.
21
And then if we go down to the
22
Lower Des Plaines River-Brandon, that reach
23
begins at the Chicago Sanitary and Ship Canal
24
and ends at the Brandon Lock and Damn.
L.A. REPORTING (312) 419-9292
158
1
MR. FORT: Okay. But you've put other
2
stream segments in the Aquatic Use B
3
category, not just these two segments of the
4
ship canal and the Lower Des Plaines,
5
correct?
6
MR. SULSKI: That's correct.
7
MR. FORT: And why do you put those
8
two segments, which have non-recreational
9
attainable use categories in with all the
10
other Use B categories?
11
MR. TWAIT: They are separate. We
12
have two use -- well, we have more than two
13
uses, we have six uses for the
14
non-recreational. That is a recreation use.
15
And Aquatic Life Use B is an aquatic life
16
designated use.
17
MR. FORT: Are there any differences,
18
though, in the water quality standards that
19
you're proposing even though you have
20
different uses?
21
MR. TWAIT: Yes. For the recreation,
22
those -- we're not proposing any water
23
quality standards at this time, however, in
24
the future we will be proposing bacteria
L.A. REPORTING (312) 419-9292
159
1
standards and for the Aquatic Life Use
2
Standards A, B and the Lower Des Plaines will
3
have the chemical water quality standards.
4
MR. FORT: But those chemical water
5
quality standards are identical regardless of
6
what the aquatic use is, correct?
7
MR. TWAIT: No.
8
MR. FORT: No?
9
MR. TWAIT: No.
10
MR. FORT: How are they different?
11
MR. TWAIT: Aquatic Life Use A -- the
12
Aquatic Life Use B Waters and Brandon Pool do
13
not support early life stages, so dissolved
14
oxygen is different, ammonia is different and
15
temperature is different.
16
MR. FORT: Okay. So for those three
17
chemicals -- or those three parameters, those
18
three parameters are different, but for
19
everything else all the chemical parameters
20
are identical?
21
MR. TWAIT: I believe that would be
22
accurate.
23
MR. FORT: Going back to the pre-filed
24
question number three on Page 4, dealing with
L.A. REPORTING (312) 419-9292
160
1
the uses you say that the language for acute
2
standards, chronic standards and human health
3
standards is not intended to be a change from
4
how they're applied for general use waters.
5
So on Page 63 of the Statement of Reasons.
6
My question is assuming that I've reasonably
7
characterized what you said in the Statement
8
of Reasons, why is that so, what's the basis?
9
MS. WILLIAMS: So you're asking
10
specifically about the section in the
11
proposal 302.407 A, B, C and D?
12
MR. FORT: Well, I'm probably asking
13
more for the background as opposed to the
14
words, but it relates to that, yes.
15
MS. WILLIAMS: The background?
16
MR. FORT: The basis.
17
MS. WILLIAMS: Right. In that
18
section, that's the language we're talking
19
about, correct?
20
MR. FORT: Yes.
21
MR. TWAIT: The Agency made some
22
changes in 302.208D1. We took that language
23
from general use, but we made some changes to
24
the language to make it clearer and more
L.A. REPORTING (312) 419-9292
161
1
accurate.
2
The new language is in 302.07D1.
3
The Agency made the statement the Agency
4
believes this revised language is clearer and
5
more accurate than the existing language, but
6
the proposed language is not intended to make
7
a substantive change in the way the
8
regulatory language is interpreted and
9
applied.
10
MR. FORT: So you were simply trying
11
to take what was already in the regs for
12
general use waters, clean it up or clarify
13
and apply that to Use B waters among other
14
waters here, correct?
15
MR. TWAIT: Yes.
16
MR. FORT: And why were you doing
17
that?
18
MS. WILLIAMS: Why were they cleaning
19
it up or why were we putting it in?
20
MR. FORT: Whichever one he wants to
21
answer. But I think it's more the second.
22
MR. TWAIT: The reason we put it in is
23
because for secondary contact standards, most
24
of those were one number standards and they
L.A. REPORTING (312) 419-9292
162
1
are applied differently than the --
2
differently than what the Agency applies
3
acute and chronic standards for and also
4
different than what we have human health
5
standards for.
6
MR. FORT: So there was intended to be
7
a substantive change in the secondary contact
8
water quality standards?
9
MR. TWAIT: Yes. But there was not --
10
we've changed the language a little bit from
11
what general use says and we don't want
12
people to -- we want to make it clear that
13
we're not planning to change how we apply
14
acute chronic and human health standards.
15
MR. FORT: But those would be new
16
requirements for secondary contact
17
dischargers?
18
MR. TWAIT: Yes.
19
MR. FORT: And that would be
20
implemented in the permitting process?
21
MR. TAIT: Yes.
22
MR. FORT: And do you have any sense
23
of how much that kind of an activity might
24
cost?
L.A. REPORTING (312) 419-9292
163
1
MS. WILLIAMS: Can you specify a
2
parameter, like there's no -- this language
3
doesn't address any particular chemicals so I
4
would think your question would have to
5
address a particular chemical in order to be
6
able to be answered.
7
MR. FORT: Well, that's probably a
8
good follow-up question when we get to
9
individual parameters, but right now I'm
10
asking if the Agency has any idea what the
11
cost involved both in terms of Agency time
12
and in terms of discharger time and other
13
folks, what the cost is of going through that
14
kind of an exercise in a permit.
15
MR. TWAIT: The permit engineer has to
16
go through and analyze whether or not to put
17
a standard in based on the current secondary
18
contact standard. I don't know that it would
19
take much more effort for them to look at
20
these new standards. So in respect to Agency
21
time, I don't think it's all that more
22
costly.
23
MR. FORT: What about the discharger?
24
MR. TWAIT: I don't know that they
L.A. REPORTING (312) 419-9292
164
1
spend a lot of time trying to figure out what
2
their permit limits are other than
3
spending -- well --
4
MR. FORT: What's the basis for that?
5
MR. TWAIT: Most dischargers. I don't
6
know how much extra it would cost a
7
discharger, no.
8
MR. FORT: So that's your answer, you
9
don't know how much time it would take?
10
MR. TWAIT: Yes.
11
MR. FORT: And you really are going to
12
withdraw that prior offhand comment?
13
MR. TWAIT: Yes, I will withdraw that.
14
MR. FORT: Thank you. I'm not sure
15
I'm supposed to be rehabilitating you, but I
16
think I understood.
17
MS. WILLIAMS: I'm trying to help
18
clarify your question, so it's okay. It's
19
only fair.
20
MR. FORT: You're welcome.
21
Well, continuing on these
22
questions on the uses and the grouping of
23
uses, I was confused as to why the Agency
24
chose to group all these different
L.A. REPORTING (312) 419-9292
165
1
categories. I think you've shown them on the
2
Exhibit 29, but in the definition it's
3
303.235, why the Agency considered all of
4
these different reaches of the Chicago
5
Waterway System to be grouped as Use B
6
because looking at Exhibit 29 I can't figure
7
out why some went into use -- based upon the
8
UAA factors and the recreational category,
9
why some were in Use A and some were in
10
Use B.
11
MS. WILLIAMS: I think we've talked
12
about this quite a bit, but if you want to
13
give Mr. Fort some leeway to go into that
14
again, I'm fine with that.
15
MR. ETTINGER: I believe we've
16
testified a lot about the structural factors
17
on the habitat. Is that what he's asking
18
about?
19
MR. FORT: No. This is more into the
20
regulatory definition which is something I
21
could not get into in Chicago the first time
22
through.
23
HEARING OFFICER TIPSORD: The
24
definition at 302 --
L.A. REPORTING (312) 419-9292
166
1
MR. FORT: 235. Look at Exhibit 29.
2
MR. SULSKI: Well, I don't know if
3
looking at this sheet is going to answer your
4
question. I'll give you a short answer and
5
if you need more elaboration, let me know.
6
We made a cut between Use A and B
7
waters based on expected aquatic life
8
potential with respect to habitat and then
9
expected recreational use with what
10
recreation -- based on what recreational use
11
exists now and in the foreseeable future.
12
That's the simple answer.
13
MR. FORT: Okay. Well, then I'll just
14
ask the question again. Why did the lower
15
ship canal, you know, the segment that's the
16
last item on the first page and the ship
17
canal down to Brandon Lock and Damn, last
18
column on the second page, get put in Use B
19
along with the other things that are in
20
Use B?
21
MS. WILLIAMS: Do you want to put them
22
in Use A, is that what your question is?
23
MR. FORT: Well, actually, I suggested
24
Use C or maybe call it secondary contact, but
L.A. REPORTING (312) 419-9292
167
1
I was just asking for why they all went in
2
Use B.
3
MR. TWAIT: Use B was basically for
4
those places that have limited habitat.
5
Use A have more habitat than the Use B.
6
MR. FORT: And so it didn't matter
7
what the recreational category was then?
8
MR. TWAIT: No, it did not matter at
9
all.
10
MR. FORT: For purposes of defining
11
uses?
12
MR. TWAIT: Correct.
13
MS. WILLIAMS: For aquatic life uses.
14
MR. SMOGOR: Another way to put it is
15
Aquatic Life Use Designations were made
16
largely independently of the -- proposed
17
Aquatic Life Use Designations were made
18
largely independently of the proposed
19
recreational use designations. Does that
20
help?
21
MR. FORT: Well, at least I understand
22
that statement. I may not agree with it, but
23
I understand it. Thank you. Okay.
24
Well, then while we're on the
L.A. REPORTING (312) 419-9292
168
1
subject of the definitions here, I could not
2
understand the meaning in 303.204, which has
3
a general statement about the Chicago Area
4
Waterway System and Lower Des Plaines River
5
of what those are. Non-specific water use
6
designations is part of Subpart B, do you
7
have that?
8
MS. WILLIAMS: Madam Hearing Officer,
9
at this time I would ask that we shouldn't
10
have to re-answer questions that were already
11
asked and answered by Ms. Franzetti or one of
12
the other parties.
13
HEARING OFFICER TIPSORD: He hasn't
14
yet asked the question, but I would agree
15
with you. Ms. Franzetti discussed this
16
section at length, so let's hear what the
17
question is and then --
18
MS. WILLIAMS: Sorry.
19
MR. FORT: So you have it?
20
MS. WILLIAMS: Oh, yes.
21
MR. FORT: My question is what is the
22
meaning of the final -- or not the final
23
phrase, by it's the phrase "limited only by
24
the physical condition of these waters and
L.A. REPORTING (312) 419-9292
169
1
hydrologic modifications to these waters,"
2
what does that phrase means?
3
HEARING OFFICER TIPSORD: We didn't
4
discuss that phrase specifically.
5
MR. SULSKI: Yes, we did. We didn't
6
did you say?
7
HEARING OFFICER TIPSORD: I don't
8
think we did.
9
MR. SMOGOR: That's intended to mean
10
pretty much that's the irreversible
11
conditions. We recognize that there's a
12
certain amount of human impact going on in
13
these waters. We recognize that some part of
14
that human impact can be considered
15
reversible conditions, some part of that
16
human impact can be considered irreversible
17
conditions and we're setting the goal by
18
recognizing that level or that amount or that
19
proportion of the human impact that
20
represents irreversible conditions.
21
MR. FORT: Well, my question is you
22
have been spending a lot of time obviously
23
with the uses and what the actual habitat is
24
and all those factors, spent a lot of time on
L.A. REPORTING (312) 419-9292
170
1
that, but how is somebody who hasn't been
2
steeped in these hearing proceedings going to
3
know what that phrase means?
4
MS. WILLIAMS: They're going to read
5
the Board opinion when the rule is done.
6
MR. SMOGOR: I don't know how someone
7
else is going to understand that or not.
8
MR. FORT: So if I understand, the
9
Agency's view is that the Board is going to
10
explain what that means?
11
MS. WILLIAMS: I'm sorry. I shouldn't
12
have said that. Go ahead if you can explain
13
any better.
14
MR. SMOGOR: Well, I don't know how
15
someone else is -- whether someone is going
16
to understand it or not understand it. The
17
intent in the context -- and we created these
18
uses in the context of each other in terms of
19
the aquatic life use and I believe also in
20
terms of the recreational uses, so there is a
21
greater context outside of the 303.204.
22
If that context is not understood
23
or not addressed then, yes, this loses some
24
of its meaning because we did address these
L.A. REPORTING (312) 419-9292
171
1
things relative to other uses. But given the
2
context of all the standards and the context
3
of these proceedings as a whole, we believe
4
that in a limited situation you're
5
constrained to some narrative language to try
6
to best define the use, so we believe that
7
that captures that intent.
8
MR. FORT: Well, I guess maybe I'm in
9
no different position than you are. I'm not
10
sure what it means when you say the highest
11
quality aquatic life and wildlife is
12
attainable limited only by the condition.
13
I'm not sure what that means. That could
14
apply to any body of water, I think.
15
MR. SMOGOR: It's intended to mean in
16
the greater context that we're -- it's
17
representing a situation where we're setting
18
an aquatic life goal that is less than the
19
Clean Water Act goal because we're
20
recognizing that there's a certain amount of
21
irreversible human impact and that was its
22
intent as far as I can tell.
23
MR. FORT: I guess I'm not correlating
24
with -- the words just don't seem to measure
L.A. REPORTING (312) 419-9292
172
1
up to what you've put forward here in terms
2
of the rulemaking. I guess I'll just leave
3
that as a comment then and we've got other
4
hearings to deal with, so thank you.
5
MS. WILLIAMS: And just to clarify, I
6
think we tried to say when other drafting
7
type issues like that have come up. We're
8
not (inaudible) to any specific phrasing
9
here. If people would like to propose
10
suggestions that they think are clearer, that
11
would be fine.
12
MR. FORT: Thank you.
13
HEARING OFFICER TIPSORD: And I just
14
would like to interject that if the Agency
15
along the way comes up with some better
16
suggestions, too, we would appreciate those.
17
Thank you.
18
MR. FORT: Well, I guess then here's
19
the other piece of this when you keep on
20
going when you get to the discussion we just
21
had about the acute standards and the human
22
health standards and those things that
23
Mr. Twait was talking about and now the
24
Agency is proposing to use general use
L.A. REPORTING (312) 419-9292
173
1
standards, how do you know what those
2
physical conditions really mean?
3
MR. TWAIT: Well, the Agency isn't
4
proposing to use general use standards
5
per se. There's a management decision to use
6
the most current standard available. And in
7
some instances, that was US EPA's national
8
criteria and in other places the Agency's
9
general use standard was the most current.
10
MR. FORT: And in some cases the
11
US EPA current criteria is even more
12
stringent than the general use standard,
13
correct?
14
MR. TWAIT: Yes.
15
MR. FORT: And that is part of this --
16
I forget what the parameter, but that is in
17
here?
18
MR. TWAIT: Yes.
19
MR. FORT: Thank you.
20
MR. TWAIT: It can go the other way,
21
also.
22
MR. ETTINGER: Which one are you
23
using, a US EPA criteria that's more
24
stringent than your current general use
L.A. REPORTING (312) 419-9292
174
1
standard?
2
MR. TWAIT: Just a second. Copper
3
would be one, temperature, and I guess that
4
would -- I think that's the only one.
5
MR. ETTINGER: I just thought it would
6
be helpful to put that in. Do you talk about
7
the chloride standards?
8
MR. TWAIT: Dissolved oxygen would
9
be --
10
MS. WILLIAMS: Can we repeat the
11
question?
12
MR. ETTINGER: Mr. Fort asked about
13
the circumstances in which US EPA criteria
14
were used instead of the existing Board
15
general use criteria. Now it's not always
16
clear as to, for example, temperature and DO
17
exactly what the US EPA criteria means in
18
this circumstance. But I gather for copper a
19
different number is being proposed than is
20
the current general use standard for copper,
21
but that is in line with the US EPA criteria.
22
I just thought in terms of getting all the
23
information on the table that Mr. Fort is
24
alluding to, that we find out if there was
L.A. REPORTING (312) 419-9292
175
1
anything -- I'm hearing copper.
2
MR. TWAIT: I think there's some
3
others. Let me make a comparison. Arsenic
4
is more stringent. Chromium trivalent is
5
based on the national criteria. Mercury is
6
based on the national criteria, that's
7
mercury for aquatic life protection. Silver,
8
we used the national criteria. And I think
9
that's it.
10
MR. FORT: Do you have any more,
11
Mr. Ettinger?
12
MR. ETTINGER: I think that's the
13
pattern we're following here. You haven't
14
been here, but we're trying to follow a
15
complete record and fill in questions.
16
MR. FORT: That's fine.
17
HEARING OFFICER TIPSORD: Go ahead.
18
MR. FORT: One other question to the
19
Agency, probably to the panel but maybe one
20
of you wants to take it. How does the
21
existing water quality standards that are on
22
the books now, how are they not protective of
23
the existing uses of the Chicago Sanitary and
24
Ship Canal?
L.A. REPORTING (312) 419-9292
176
1
MS. WILLIAMS: Is this a follow-up or
2
are we in the pre-filed somewhere?
3
MR. FORT: This is a follow-up.
4
MR. TAIT: Are you asking how the
5
existing secondary contact standards are not
6
protective of aquatic life?
7
MR. FORT: You can answer that
8
question, too. That would be good. Yes.
9
MR. TWAIT: The secondary contact
10
water quality standards were not based on
11
protection of aquatic life, they were based
12
on effluent standards. So back in 1972 they
13
were not trying to protect aquatic life
14
beyond having effluent standards.
15
MR. FORT: Well, I understand there's
16
been quite a discussion that I missed on
17
thermal, so except for thermal is there any
18
evidence that the Agency has that the
19
existing secondary contact water quality
20
standards are not protective of aquatic life,
21
the aquatic life that is available for the
22
stream segment being the Chicago Sanitary and
23
Ship Canal.
24
MR. TWAIT: Yes.
L.A. REPORTING (312) 419-9292
177
1
MR. FORT: And what is that?
2
MR. TWAIT: Arsenic had a
3
concentration at one milligram per liter,
4
which is a secondary contact water quality
5
standard. It's not protective of aquatic
6
life.
7
MR. FORT: And what's the basis for
8
that conclusion?
9
MR. TWAIT: The amount of research
10
data, the national criteria document and our
11
general use water quality standard.
12
MR. FORT: So you're comparing it to
13
the national criteria document or other
14
general use standards, is that what I heard?
15
MR. TWAIT: Yes. Arsenic for an acute
16
standard that we've proposed would be
17
0.34 milligrams per liter for an acute
18
standard and for a chronic standard it would
19
be 0.15.
20
MR. FORT: That's part of the
21
proposal, correct?
22
MR. TWAIT: Yes. And that is based on
23
the national criteria. And basically it's --
24
I just chose basically the first constituent
L.A. REPORTING (312) 419-9292
178
1
in the list. I could go down the list and
2
point out others.
3
MR. FORT: But those are based upon
4
national criteria for all water bodies,
5
they're not based upon the exact habitat, for
6
example, that you have in the ship canal,
7
correct.
8
MR. TWAIT: The national criteria are
9
based upon lab results showing toxicity to
10
whatever they're doing in the lab. The
11
habitat in the lab doesn't matter.
12
MR. FORT: So based upon the lab
13
studies, not based upon the actual
14
conditions, and I'm really just focusing upon
15
the Sanitary and Ship Canal, correct?
16
MR. TWAIT: Yes. If it kills it --
17
the only studies that they do or the primary
18
studies that they do are toxicity, what kills
19
the organism in the lab. And other than
20
whether the organism is there or not, habitat
21
doesn't matter.
22
MR. ETTINGER: As to some of the US
23
EPA criteria in the past, it makes a
24
difference as to whether you're dealing with
L.A. REPORTING (312) 419-9292
179
1
a salmonid or non-salmonid species and
2
sometimes in the case of DO and ammonia and
3
perhaps some other chemicals the criteria are
4
tighter when we're trying to protect some
5
species.
6
As to copper and these others that
7
we're talking about, was there a difference
8
in the criteria in the US EPA criteria
9
documents as to those sorts of species
10
differences?
11
MR. TWAIT: Yes. In some of the
12
national criteria documents they had
13
salmonids and other organisms that are not
14
found in Illinois and we removed them in the
15
database prior to our calculations of water
16
quality standards.
17
MR. ETTINGER: So the water quality
18
standards that you're proposing for the B
19
Waters have been adjusted to make sure that
20
you're applying the federal criteria as it
21
applies to those waters?
22
MR. TWAIT: We have made that attempt,
23
yes.
24
MR. ETTINGER: Thank you.
L.A. REPORTING (312) 419-9292
180
1
MR. FORT: You've made that attempt,
2
but you're not testifying that the actual
3
species that may exist in places like the
4
Chicago Sanitary and Ship Canal have been
5
reflected in all the parameters that you've
6
proposed, correct?
7
MR. TWAIT: That would be correct.
8
There was a management decision that where
9
the water quality standard could be met, we
10
were going to propose either the national
11
criteria or the general use standard.
12
There are some instances where you
13
might be able to remove some more species
14
from the national criteria document to more
15
accommodate fewer species in the waterway and
16
this was attempted on at least one parameter.
17
But when you get to a point where you're
18
removing too many species because of the
19
variability and the safety factor built in,
20
your criteria becomes more stringent.
21
MR. FORT: What parameters was that
22
that you attempted it on?
23
MR. TWAIT: That was for cadmium. And
24
the Agency took out the cold water species
L.A. REPORTING (312) 419-9292
181
1
and the species not native to Illinois and
2
the criteria became much more stringent just
3
because there were so few species involved in
4
the first place.
5
MR. FORT: And because you had fewer
6
species, your standard deviation got bigger
7
and therefore your safety factor got bigger
8
which sort of overwhelmed everything else,
9
correct?
10
MR. TWAIT: Yes.
11
MR. FORT: So it's statistics that
12
caused the problem, not the sampling results
13
that caused the problem?
14
MR. TWAIT: There was -- I don't know
15
what sampling results you're talking about,
16
but, yeah, the statistics were a problem.
17
MR. FORT: Let me just play it back.
18
If I understand what you were saying here, if
19
you had ten species that you had data on,
20
let's just assume for sake of argument all of
21
them were five parts per million was the key
22
number, but you conclude that -- and so
23
therefore you have a real high confidence
24
level or relatively high, it would be better
L.A. REPORTING (312) 419-9292
182
1
if it were 100 or 30 at least, but that you
2
have a pretty good set that's around five
3
parts per million as a standard.
4
But if you reduce it down from ten
5
to five and now the variability goes from
6
three parts per million to seven parts per
7
million, your statistics are going to make
8
you now go to ten parts per million or some
9
much higher number such as that, correct?
10
MR. TWAIT: Yes.
11
MR. FORT: I thought that's what you
12
were saying, but I wanted to see if I
13
understood. Thank you.
14
Madam Hearing Officer, I've got
15
some more questions in this set, but I think
16
they all get very specific to individual
17
standards, so if the rule is we're going to
18
go with the safe questions for individual
19
parameters, I'm done.
20
HEARING OFFICER TIPSORD: Well, I
21
believe that's what Ms. Franzetti ended with
22
so thank you very much, Mr. Fort.
23
MR. FORT: I guess I should say I'm
24
done for now.
L.A. REPORTING (312) 419-9292
183
1
HEARING OFFICER TIPSORD: Mr. Safley,
2
did you have anything at this point?
3
MR. SAFLEY: Not on behalf on Flint
4
Hills or Corn Products.
5
HEARING OFFICER TIPSORD: Okay. Let
6
me see if I can find my list. I forget who
7
is after Corn Products.
8
MR. FORT: I found a document that I
9
had forgot that I had in here. I have one
10
question.
11
HEARING OFFICER TIPSORD: And we're
12
going to hold you to that, no follow-ups,
13
just one.
14
MR. FORT: That's very fair. This is
15
a question on the document that was filed and
16
I think this was something that Mr. Yoder
17
mentioned. I had asked him a question was
18
there any other sampling on species in the
19
Chicago Sanitary and Ship Canal and I believe
20
he said that there was. And I believe the
21
document called Evaluation and Development of
22
Large River Biological Assessment Methods and
23
Standardized Protocols for Region Five is
24
that document. Is that an exhibit?
L.A. REPORTING (312) 419-9292
184
1
MS. DIERS: We haven't made it an
2
exhibit yet.
3
MR. FORT: I don't think it needs to
4
be, but I was just trying to clarify the
5
record. So I guess I'm on two questions
6
then.
7
HEARING OFFICER TIPSORD: Which one is
8
it?
9
MR. FORT: Evaluation. My question
10
goes to was any of this data collected on the
11
Chicago Sanitary and Ship Canal, because when
12
I go to the listing of the Chicago Area Water
13
System, Page 75, I don't see any site that's
14
being sampled here that's something I can
15
identify as being on the Sanitary Ship Canal.
16
Now, he may have misheard and thought I was
17
talking about the Chicago Area Waterway
18
System, but as to the ship canal was the
19
question.
20
MS. WILLIAMS: I would say at this
21
point if they know the answer, I'm not going
22
to object to them answering. But when this
23
document came up in Mr. Yoder's testimony, he
24
had said, well, I'm sure the Agency had a
L.A. REPORTING (312) 419-9292
185
1
copy of this, but all the witnesses had not
2
seen it. So I'm not sure that -- I'm not
3
sure if we'll be able to answer it.
4
HEARING OFFICER TIPSORD: How about
5
instead of objecting, you caveat any answer
6
from the Agency with that?
7
MS. WILLIAMS: That's exactly right.
8
Can anyone answer?
9
(Brief pause.)
10
MR. SULSKI: While we're looking and
11
trying to see, it doesn't look like any of
12
these are on the Chicago Sanitary and Ship
13
Canal.
14
MR. FORT: Okay.
15
HEARING OFFICER TIPSORD: And for the
16
record we are going to enter that as
17
Exhibit 35 if there's no objection. It's the
18
Evaluation and Development of Large River
19
Biological Assessment, is that the one we're
20
talking about?
21
MR. SMOGOR: Yes.
22
MR. FORT: Mr. Sulski, I came to the
23
same conclusion that it wasn't part of the
24
ship canal, but...
L.A. REPORTING (312) 419-9292
186
1
HEARING OFFICER TIPSORD: With that,
2
we move on to Chemical Industry Council.
3
MS. FREDE: We have no questions at
4
this time.
5
HEARING OFFICER TIPSORD: And that
6
goes to Mr. Andes with the Metropolitan Water
7
Reclamation District. Did you have anything
8
additional without getting into specific
9
criteria?
10
MR. ANDES: No.
11
HEARING OFFICER TIPSORD: Stepan?
12
MR. DIMOND: I didn't even understand
13
the distinction between the (inaudible) and
14
specifics, so the answer is no.
15
HEARING OFFICER TIPSORD:
16
Environmental Law Policy Center?
17
MR. ETTINGER: We have a question
18
which arguably fits, but we would rather keep
19
all of our things together.
20
HEARING OFFICER TIPSORD: And that
21
leaves us with Exxon Mobile.
22
MR. SAFLEY: I think that we're in the
23
same position.
24
HEARING OFFICER TIPSORD: Then we'll
L.A. REPORTING (312) 419-9292
187
1
go back to Ms. Franzetti.
2
MS. FRANZETTI: I know you all missed
3
me.
4
(Brief pause.)
5
MS. FRANZETTI: Okay. On my pre-filed
6
questions we are at Roman ten, Proposed
7
Thermal Water Quality Standards. These are
8
some background questions regarding the
9
MBI/CABB 2005 report which is Exhibit 15, I
10
believe, and it was also Attachment GG to the
11
Statement of Reasons.
12
Question number one, in regard to
13
the report by MBI and CABB titled Temperature
14
Criteria Options for the Lower Des Plaines
15
River, October 11th, 2005, which is
16
Exhibit 15, the Illinois EPA states at Page
17
81 of the Statement of Reasons that, quote,
18
US EPA Region 5 and Illinois EPA requested
19
this study to develop technical support and
20
temperature criteria options for the Lower
21
Des Plaines River, end quote. Would you
22
please explain the role of the US EPA Region
23
5 in the request for this study?
24
MR. TWAIT: US EPA Region 5 already
L.A. REPORTING (312) 419-9292
188
1
had a contract with MBI and they provided the
2
funding for the study.
3
MS. FRANZETTI: And did you seek out
4
assistance to come up with a way in which to
5
derive thermal criteria?
6
MR. TWAIT: I don't know whether we
7
sought assistance from US EPA or if they made
8
the offer. I don't know.
9
MS. FRANZETTI: And so they offered up
10
Mr. Yoder and his approach to deriving
11
thermal water quality criteria and the Agency
12
accepted the offer; would that be accurate?
13
MR. TWAIT: Yes.
14
MS. FRANZETTI: Now if the report was
15
based on the Lower Des Plaines River, how did
16
the Agency use the conclusions and options
17
presented in this report to develop
18
temperature standards for the CAWS as stated
19
at Page 81 in the Statement of Reasons?
20
MR. TWAIT: The Agency believed that
21
the CAWS system was similar to the Brandon
22
Pool, therefore, the Agency used the RAS
23
group, representative aquatic species of
24
eight species throughout the CAWS and then a
L.A. REPORTING (312) 419-9292
189
1
little bit later we added White Sucker to the
2
A Waters.
3
HEARING OFFICER TIPSORD: Mr. Dimond,
4
do you have a follow-up?
5
MR. DIMOND: I do if Ms. Franzetti is
6
done.
7
MS. FRANZETTI: Sure.
8
MR. DIMOND: Had anyone at the Agency
9
ever seen the methodology used by MBI in this
10
report before?
11
MR. TWAIT: I don't know the timing of
12
it, but I was involved with the ORSANCO group
13
who was working on water quality standards
14
for the Ohio River and they are using the
15
Chris Yoder methodology also.
16
MR. DIMOND: Did the Agency
17
investigate any methodologies other than
18
Mr. Yoder's methodology for coming up with
19
thermal water quality standards?
20
MR. TAIT: The ORSANCO group did
21
ask -- they asked Chris to look into it and
22
Chris found several -- I think two other
23
methodologies that were being used, one was
24
in Colorado if I remember correctly and the
L.A. REPORTING (312) 419-9292
190
1
other one was either in Wisconsin or
2
Minnesota.
3
HEARING OFFICER TIPSORD: For the
4
record, ORSANCO?
5
MR. TWAIT: O-R-S-A-N-C-O.
6
MR. SMOGOR: Ohio River Valley Water
7
Sanitation Commission. There's a few extra
8
words in there, but they are in there. I had
9
to look that up several times.
10
MR. TWAIT: Thank you.
11
MR. DIMOND: Did the Agency evaluate
12
those other methodologies for coming up with
13
thermal water quality standards?
14
MR. TWAIT: The Agency did not.
15
MR. DIMOND: That's all.
16
HEARING OFFICER TIPSORD:
17
Ms. Franzetti?
18
MS. FRANZETTI: Actually, one more
19
follow-up on that. Do you recall at least
20
generally what the nature was of the Colorado
21
methodology?
22
MR. TWAIT: I do not remember what the
23
nature of it was, but it was for cold water
24
species specifically.
L.A. REPORTING (312) 419-9292
191
1
MS. FRANZETTI: Similarly, do you
2
recall generally what either the Wisconsin or
3
Minnesota, whichever it was, and I know you
4
can't recollect specifically, but do you
5
recall anything about what that methodology
6
was based on?
7
MR. TWAIT: Yes. The way they wrote
8
their water quality standards was unique. It
9
was based upon the ambient -- they wrote it
10
for a discharger specifically. And the water
11
quality standard is based upon the ambient
12
temperature and the temperature that is being
13
discharged and what they have to meet outside
14
of a mixing zone.
15
MS. FRANZETTI: Mr. Twait, would it be
16
fair to say that the Agency was not opposed
17
to looking at other methodologies, but due to
18
reasons like time and resources, is that why
19
the Agency did not look at methodologies
20
beyond the one that Yoder calls his fish
21
temperature model?
22
MR. TWAIT: I would say that's
23
accurate.
24
MS. FRANZETTI: There was a
L.A. REPORTING (312) 419-9292
192
1
temperature methodology proposed by Midwest
2
Generation to the Agency. Did the Agency
3
give that any consideration?
4
MR. TWAIT: Would you be specific as
5
to which methodology you're talking about?
6
MS. FRANZETTI: Why don't we just take
7
the last one that we presented to you which
8
was approximately in August of 2007?
9
MR. TWAIT: I read the proposal that
10
was sent in in August, but our rulemaking was
11
basically set in August and our director had
12
signed off on our proposal at that time so
13
the Agency didn't give all that much -- we
14
didn't look into it far enough because we
15
weren't going to change our proposal at that
16
time.
17
MS. FRANZETTI: Okay. Fair enough.
18
What you're saying is from the Agency's
19
perspective, although Midwest Gen might not
20
have realized it, that proposed methodology
21
came to you too late to be given thorough
22
consideration?
23
MR. TWAIT: Yes.
24
MS. FRANZETTI: And I take it since
L.A. REPORTING (312) 419-9292
193
1
that time, given that you've made your
2
proposal to the Board, it has not been given
3
any further consideration?
4
MR. TWAIT: Not enough that we
5
would -- since we knew we were not going to
6
be changing our proposal, no, we haven't.
7
We've read it, but that would be it.
8
MS. FRANZETTI: Okay. Did you
9
consider any prior submittals by Midwest
10
Generation for deriving thermal criteria?
11
MR. TWAIT: I think the other proposal
12
we didn't view it as a water quality
13
standard. I believe the other proposal just
14
had alternative limits at the I-55 bridge.
15
MS. FRANZETTI: Okay. That's your
16
understanding of what was submitted?
17
MR. TWAIT: Yes.
18
MS. FRANZETTI: Okay. I'll leave it
19
at that time. Moving on to question two, and
20
I asked basically the same question of
21
Mr. Yoder but I didn't ask it of the Agency,
22
so that's why I don't think it's been asked
23
and answered.
24
What steps did the Agency take to
L.A. REPORTING (312) 419-9292
194
1
ensure that the MBI/CABB 2005 report,
2
Exhibit 15, was consistent with the 1985 US
3
EPA guidance for developing water quality
4
criteria particularly as to the level of
5
protection and priority for field data? And
6
by that we mean that we believe the 1985 EPA
7
guidance document does support giving
8
priority to field data over literature or
9
laboratory data.
10
MR. TWAIT: If your question is -- the
11
Agency relied on the consultant's knowledge
12
to be consistent with US EPA guidance.
13
MS. FRANZETTI: You did not do an
14
independent review to compare what Mr. Yoder
15
came up with in terms of how consistent it
16
was with the US EPA 1985 guidance, correct?
17
MR. TWAIT: Correct. He was the --
18
MS. FRANZETTI: Expert.
19
MR. TWAIT: -- expert.
20
MS. FRANZETTI: I understand. And so
21
you relied on him?
22
MR. TWAIT: Yes.
23
MS. FRANZETTI: I think then we can
24
probably go quickly through these next few
L.A. REPORTING (312) 419-9292
195
1
questions. Does the Illinois EPA know what
2
portion or percentage of the fish species
3
database on which the MBI/CABB 2005 report,
4
Exhibit 15, recommendations are based consist
5
of unreviewed data?
6
MR. TAIT: The Agency does not know
7
the percentage of the data that is
8
unreviewed.
9
MS. FRANZETTI: Moving on to number
10
four, did either the Illinois EPA or the
11
US EPA Region 5 have Exhibit 15 peer reviewed
12
or take any other steps to address quality
13
assurance issues relating to the report?
14
MR. TWAIT: Not that I'm aware of.
15
MS. FRANZETTI: Number five, is it
16
correct that after Exhibit 15 was completed
17
there was no meeting of the stakeholders
18
group for the Lower Des Plaines held to
19
review and discuss the report?
20
MR. TWAIT: Yes, that is correct.
21
MS. FRANZETTI: Do you know why that
22
was?
23
MR. TWAIT: I don't know.
24
MS. FRANZETTI: Okay. Moving on then
L.A. REPORTING (312) 419-9292
196
1
to B, Thermal Standards Development. On Page
2
2 of the Twait pre-filed testimony it is
3
stated that he, quote, interpreted, end
4
quote, the thermal information Chris Yoder
5
provided and translated that information into
6
the proposed thermal water quality standards.
7
Now I recognize I think some of
8
this has been covered, and bear with me, I'll
9
try not to be repetitive. I think A has not
10
been asked and answered. Did this
11
interpretation, quote, translation, end
12
quote, include any changes that were intended
13
to address Yoder's statement on Page 7 of
14
Exhibit 15 that, quote, the model output will
15
propagate a degree of uncertainty which can
16
be considered in the eventual derivation and
17
application of the temperature criteria? In
18
other words, did you make adjustments to
19
account for that degree of uncertainty?
20
MR. TAIT: This statement was not
21
specifically addressed. However, the Agency
22
provided that the daily maximum could be
23
exceeded by two degrees Celsius 2 percent of
24
the time but it was not specifically because
L.A. REPORTING (312) 419-9292
197
1
of the statement on Page 7 of Exhibit 15.
2
MS. FRANZETTI: Was it in part
3
included in order to address the general
4
principal of some uncertainty perhaps to the
5
thermal numbers? I'm not trying to put words
6
in your mouth, Mr. Twait, I just didn't know
7
if you were saying, well, not specific to
8
this statement, but generally because of
9
concerns regarding uncertainty of the
10
reliability of the numbers.
11
MR. TWAIT: No. I think the Agency
12
put in the two degrees Celsius 2 percent of
13
the time excursions based upon historically
14
putting that in and for compliance reasons.
15
MS. FRANZETTI: Okay. Moving on to B.
16
As noted at Page 3 of Exhibit 15, quote, the
17
steady or regular increases in test
18
temperature inherent to the methodologies
19
used do not reflect environmental reality,
20
end quote.
21
Did the Agency's interpretation of
22
the thermal information provided by Mr. Yoder
23
result in any changes to his recommended
24
thermal criteria in order to, quote, reflect
L.A. REPORTING (312) 419-9292
198
1
environmental reality, end quote?
2
MR. TWAIT: The Agency did not make
3
any changes as to the result of those
4
concerns.
5
MS. FRANZETTI: Was there any review
6
of Mr. Twait's interpretation and translation
7
of the Yoder fish species data that was
8
performed by a recognized expert in such
9
matters?
10
MR. TWAIT: No. These changes were
11
discussed at meetings within the Agency.
12
MS. FRANZETTI: Give me a moment. I
13
think maybe part of two has been asked and
14
answered. I'm not sure. We talked about
15
White Sucker, but I don't think this question
16
has been answered. Question two, on Page 12
17
of the Twait pre-filed testimony it is stated
18
that the eight species RAS list was expanded
19
by adding the White Sucker to this list.
20
Please provide the Illinois EPA's
21
justification for adding the White Sucker to
22
the RAS list and identify who proposed its
23
addition.
24
MR. TWAIT: Ed Hammer of US EPA
L.A. REPORTING (312) 419-9292
199
1
proposed the addition of White Sucker to
2
certain CAWS waterways and Stonecat Madtom to
3
the Upper Dresden Island Pool.
4
The Agency personnel agreed with
5
the addition of the White Sucker and that's
6
when we made the CAWS A Waters and we
7
disagreed with the addition of the Stonecat
8
Madtom.
9
MS. FRANZETTI: And because you
10
disagreed, you didn't add it?
11
MR. TWAIT: That is correct.
12
MS. FRANZETTI: Okay. Now, just so I
13
understand, with respect to what Region 5
14
proposed on the White Sucker, was it just
15
proposing its addition for the Use A Waters
16
or was it proposing its addition across the
17
board and you scaled it back to the Use A
18
Waters?
19
MR. TWAIT: At the time of our
20
proposal, and that would have been the March
21
proposal, we only had one segment for the
22
CAWS waters and Brandon Pool and I think Ed
23
suggested that there was some segments in the
24
waterways that had White Sucker and so we
L.A. REPORTING (312) 419-9292
200
1
went and looked at it and we agreed that
2
White Sucker was there and I believe that's
3
when we split off into A and B Waters for
4
temperature.
5
We had A and B Waters already, but
6
they were not differentiated for temperature.
7
At this point in time is when we separated
8
them for temperature, I believe.
9
MS. FRANZETTI: Okay. So the addition
10
of White Sucker to the Aquatic Life Use A RAS
11
list actually caused a change in what the
12
Agency decided to propose as the thermal
13
standards for the Use A Waters?
14
MR. TWAIT: Yes.
15
MS. FRANZETTI: And that's because
16
it's believed to be the most sensitive
17
species?
18
MR. TWAIT: With the addition of the
19
White Sucker, that is the most sensitive
20
species out of those what would be nine fish
21
species.
22
MS. FRANZETTI: And the White Sucker
23
thermal numbers that we're talking about
24
driving that proposed standard, they come
L.A. REPORTING (312) 419-9292
201
1
from Mr. Yoder's fish temperature model,
2
correct?
3
MR. TWAIT: Yes.
4
MS. WILLIAMS: I would like to ask an
5
indulgence and it's up to your ruling, but
6
yesterday there was a question I had trouble
7
answering on what changed in the temperature
8
propose that you requested we answer in
9
writing. I think we would be prepared now to
10
put that on the record here unless you still
11
prefer that it be done later in writing.
12
HEARING OFFICER TIPSORD: It was
13
Ms. Franzetti's question?
14
MS. WILLIAMS: No, it was actually
15
from Stepan.
16
HEARING OFFICER TIPSORD: I'm fine
17
with him going ahead and answering it now.
18
That would be fine.
19
MS. WILLIAMS: Well, I know the
20
question on -- it was question four on Page
21
14 that we were asked to respond to in
22
writing which said on what basis did the
23
Agency change the proposed temperature
24
standard between the last proposal to this
L.A. REPORTING (312) 419-9292
202
1
SAG and what was proposed to the Board?
2
So I would like you to clarify for
3
us the changes that were made from the March
4
2007 outreach meeting document and what is
5
contained in the Agency's proposal in this
6
rulemaking.
7
MR. TWAIT: I believe there were four
8
changes. The first change we corrected an
9
error for the summer temperature for the
10
eight species RAS. This made our proposal a
11
little bit more stringent.
12
I know I said yesterday that
13
everything was less stringent, but I was
14
mistaken. It did make it more stringent.
15
The daily maximum went from 91.9 degrees
16
Fahrenheit to 90.3 degrees Fahrenheit and the
17
monthly average went from 83 -- I'm sorry, it
18
went from 88.3 degrees Fahrenheit to
19
86.7 degrees Fahrenheit.
20
MS. WILLIAMS: And you're referring to
21
the CAWS A Waters?
22
MR. TWAIT: Yes. This would be for --
23
I'm sorry, this would be for CAWS B Waters.
24
MS. WILLIAMS: Okay.
L.A. REPORTING (312) 419-9292
203
1
MR. TWAIT: The second change was, as
2
we were just discussing, the addition of the
3
White Sucker to the A Waters and that did
4
make it more stringent for the A Waters.
5
The third change was that we
6
included MWRD effluent as part of the
7
background and this made the non-summer
8
months less stringent. And this was done
9
based on the request by MWRD saying that -- I
10
believe they noted that they were the source
11
of the water so they should be, quote, end
12
quote, background.
13
And I believe the fourth and last
14
change was the Agency decided to extend the
15
daily maximum summer temperature throughout
16
the year instead of having monthly daily
17
maximum temperatures based on ambient data.
18
MS. WILLIAMS: And did that last
19
change make it more stringent or less
20
stringent?
21
MR. TWAIT: Less stringent.
22
HEARING OFFICER TIPSORD: Thank you
23
very much for that.
24
MR. TWAIT: Sorry I didn't have it
L.A. REPORTING (312) 419-9292
204
1
yesterday.
2
MS. FRANZETTI: Moving on to
3
question --
4
MR. DIMOND: I'd like to ask a
5
follow-up on that especially since it was my
6
question being answered.
7
MS. FRANZETTI: Yes.
8
MR. DIMOND: I will have to go back
9
and look at the comparison. So I take it
10
that in the March 2007 proposal there were
11
daily maximum temperatures that changed for
12
different periods during the year and so what
13
you're saying is that you changed it so that
14
it's just one daily maximum, just one number
15
throughout the entire year now?
16
MR. TWAIT: Yes.
17
MR. DIMOND: Okay. And then I
18
didn't -- the first one that you talked
19
about, you said you corrected a temperature
20
in the eight species RAS. That only affects
21
the Aquatic Life Use B Waters then, right?
22
MR. TWAIT: Yes, Aquatic Life Use B
23
Waters and Brandon Pool. And at the time it
24
would have affected the A Waters also, but
L.A. REPORTING (312) 419-9292
205
1
then we went back and added White Sucker so
2
the White Sucker was driving the proposal.
3
MR. DIMOND: So what was -- I didn't
4
quite understand what the correction was that
5
you made to the eight species RAS list.
6
MR. TWAIT: Sure. Exhibit 15 has an
7
error in it for the secondary contact --
8
well, for the eight species and the Agency
9
corrected that with Attachment HH.
10
MR. DIMOND: Okay. That's it. Thank
11
you.
12
MS. FRANZETTI: Moving on to question
13
three. On Page 12 of the Twait pre-filed
14
testimony it is stated that the Illinois EPA
15
determined that the 27 species RAS list
16
identified by Chris Yoder for his modified
17
use classification was an appropriate basis
18
on which to derive the thermal water quality
19
standards for the Upper Dresden Pool.
20
Doesn't the use of only these 27 species that
21
are based on a modified use classification
22
show that the available habitat in the Upper
23
Dresden Pool for aquatic life is more limited
24
than for a full aquatic life use designation
L.A. REPORTING (312) 419-9292
206
1
such as general use?
2
MR. TWAIT: Yes. Well, I won't say
3
yes. The Agency used a modified use RAS 1.
4
We could have and we probably should have
5
used the general use RAS 3 and come up with
6
the same criteria.
7
MS. FRANZETTI: The last part of that
8
answer threw me.
9
MR. TWAIT: If we were to be
10
consistent with our proposal throughout just
11
saying that was general use.
12
MS. WILLIAMS: Do you want him to
13
explain why it would be the same criteria?
14
MS. FRANZETTI: I'm not sure if that's
15
what he's saying. Have you already looked at
16
that and determined that using Mr. Yoder's
17
methodology, whether you were to use the
18
general use RAS list you'd wind up with
19
essentially the same thermal values as you
20
did using modified use?
21
MR. TAIT: Yes, for the general use
22
RAS 3 it would have the same criteria for the
23
daily maximum monthly average.
24
MS. FRANZETTI: Doesn't that cause you
L.A. REPORTING (312) 419-9292
207
1
some basis to doubt the reliability of this
2
Yoder methodology for deriving thermal
3
criteria?
4
MR. TWAIT: Based on his methodology,
5
he had the same RAS -- the same species that
6
was most sensitive for those two categories
7
and that was the White Sucker.
8
MS. FRANZETTI: I understand what
9
causes it to come out the same as between a
10
modified use category that does not attain
11
clean water aquatic life goals and a full use
12
general use classification that does. My
13
question is does that cause you some doubt or
14
discomfort about relying on such a
15
methodology?
16
MR. TWAIT: I think Chris testified
17
when he was here that he did not break these
18
categories to mean anything specific or at
19
least that's how the Agency took it. He just
20
used different options.
21
MS. FRANZETTI: I don't think my
22
question has been answered, but I'll move on.
23
MS. WILLIAMS: I think that you may be
24
right. Can you repeat it?
L.A. REPORTING (312) 419-9292
208
1
MS. FRANZETTI: I'm just asking
2
whether the fact that a methodology that
3
keeps churning out basically the same
4
numbers, irregardless of the significant
5
difference in the use designation, creates
6
some doubt in your mind as to whether or not
7
this is a good, reliable, you know, whatever
8
words you want to use, acceptable methodology
9
for deriving thermal water quality standards?
10
MR. TWAIT: Since I know how his
11
criteria work and it all depends on
12
projecting the most sensitive species, I
13
would -- I don't know that I can answer that
14
in the affirmative.
15
MS. FRANZETTI: Okay.
16
MR. DIMOND: I have a couple of
17
follow-ups. How many species were in the
18
general use RAS 3 category?
19
MR. TWAIT: There were 49 and then he
20
removed Stonecat Madtom, so I would say 48.
21
MR. DIMOND: Okay. Thank you.
22
MS. FRANZETTI: Moving on then to C,
23
Seasonal Ambient Temperature Data.
24
HEARING OFFICER TIPSORD: Excuse me,
L.A. REPORTING (312) 419-9292
209
1
Ms. Franzetti, 4 has been asked and answered?
2
MS. FRANZETTI: I'm sorry. I jumped
3
over it.
4
HEARING OFFICER TIPSORD: I only
5
noticed because I think we'll take a break
6
before we move into C.
7
MS. FRANZETTI: I will ask it. Did
8
Region 5 explain why or provide any technical
9
justification for its request that the
10
Stonecat Madtom be added?
11
MR. TWAIT: I cannot recall the phone
12
conversation exactly, but I do believe that
13
they suggested that the Stonecat Madtom --
14
let me make sure I'm talking about the right
15
species. That StoneCat had been found in the
16
Lower Des Plaines River.
17
MS. FRANZETTI: And you disagreed with
18
it based on your data that indicated it
19
really wasn't present?
20
MR. TWAIT: No. I talked to our
21
biologist and the habitat was not conducive
22
to StoneCat and so we made the decision that
23
if Stonecat Madtom was found, that this was
24
not its primary habitat.
L.A. REPORTING (312) 419-9292
210
1
MS. FRANZETTI: Do you recall what was
2
it about -- and I guess I should stop. We're
3
talking about the Upper Dresden Pool habitat,
4
right?
5
MR. TWAIT: Yes.
6
MS. FRANZETTI: Do you recall what it
7
was about the Upper Dresden Pool habitat that
8
wasn't conducive to the Stonecat Madtom?
9
MR. TWAIT: I think I remember, but
10
Roy would probably --
11
MR. SMOGOR: I talked with Scott about
12
this. He asked me about my opinion of
13
StoneCat in Lower Des Plaines. I primarily
14
based my opinion on the lack of historical
15
records of StoneCat in the main stem of the
16
Lower Des Plaines. Reasons why that never
17
occurred there, I don't really recall
18
discussing much.
19
MR. JOHNSON: I thought that was a
20
rock band.
21
MS. FRANZETTI: I know. I was going
22
to say that.
23
MR. TWAIT: I remember the
24
conversation a little bit. I believe we
L.A. REPORTING (312) 419-9292
211
1
looked up in one of the fish --
2
MS. FRANZETTI: Books?
3
MR. TWAIT: -- fish books is what
4
we're calling them.
5
MS. FRANZETTI: Works for me.
6
MR. TWAIT: And I believe their
7
habitat was riffle run habitat.
8
MR. SMOGOR: That's correct.
9
Primarily, it is. Primarily, their habitat
10
is riffle run, but I don't want to say that
11
there's no riffle run in Lower Des Plaines
12
because of the upper part of the tailwater I
13
think has some habitat that may be suitable
14
to StoneCat.
15
But I don't think they've
16
historically been known to occur in Lower Des
17
Plaines so that kind of trumps that, at least
18
in my opinion.
19
MS. FRANZETTI: I see. Right. Off
20
the record.
21
(Whereupon, a discussion
22
was had off the record.)
23
HEARING OFFICER TIPSORD: At this
24
point we'll take a break. Let's go
L.A. REPORTING (312) 419-9292
212
1
ten minutes or so.
2
(Whereupon, after a short
3
break was had, the
4
following proceedings
5
were held accordingly.)
6
HEARING OFFICER TIPSORD:
7
Ms. Franzetti, whenever you're ready.
8
MS. FRANZETTI: We're moving into the
9
Subpart C of my pre-filed questions, Seasonal
10
Ambient Temperature Data. Question one on
11
Page 83 of the Statement of Reasons and Page
12
13 of the Twait pre-filed testimony it is
13
stated that the, quote, criteria for
14
non-summer periods are derived to maintain
15
seasonal norms and cycles of increasing and
16
decreasing temperatures, end quote. Explain
17
what the Agency means by the terms seasonal
18
norms and cycles of increasing and decreasing
19
temperatures.
20
MR. TWAIT: This language was taken
21
from Page 15 of the MBI report, which is
22
Exhibit 15. Basically means that the normal
23
cycle is preserved where it's warmer in the
24
summer and cooler in the winter and a gradual
L.A. REPORTING (312) 419-9292
213
1
change in the springtime and fall.
2
MS. FRANZETTI: So basically are the
3
two phrases -- are seasonal norms basically
4
the same thing as cycles of increasing and
5
decreasing temperatures or are they two
6
different things?
7
MR. TWAIT: I think the seasonal norms
8
are the winter and the summer and the cycles
9
of increasing and decreasing temperatures are
10
more toward the fall and spring. That's how
11
I interpreted it.
12
MS. FRANZETTI: Question two, explain
13
how the proposed thermal water quality
14
standards maintained seasonal norms and
15
cycles of increasing an decreasing
16
temperatures.
17
MR. TWAIT: The Agency tried to pick a
18
background station. I think we've explained
19
how we picked that background station. And
20
having a period average will force or will
21
have a seasonal component and it will
22
increase in the spring and decrease in the
23
fall.
24
MS. FRANZETTI: Well, I guess I'll use
L.A. REPORTING (312) 419-9292
214
1
Upper Dresden Island Pool. I'm looking at
2
Section 302.408, which is the proposed
3
temperatures water quality standards. In
4
Subparagraph D, as in dog, are the proposed
5
temperatures for the Upper Dresden Pool. For
6
example, the period average for the month of
7
January is 54.3 degrees Fahrenheit, for
8
February, it drops down a little bit to 53.6
9
and then for March it starts going up to --
10
it goes up to 57.2.
11
So just using those three months
12
for example, is the point that -- is the
13
theory that you maintain these temperatures
14
for the entire month's average in or about
15
these 50-something degrees to maintain that
16
would be the seasonal norm for the winter
17
months?
18
MR. TWAIT: You could look at it that
19
way.
20
MS. FRANZETTI: I'm just trying to
21
interpret what you said, so tell me if you
22
would look at it differently.
23
MR. TWAIT: The seasonal norms I think
24
is going throughout the winter I guess and
L.A. REPORTING (312) 419-9292
215
1
also throughout the summer, yes.
2
MS. FRANZETTI: And then in the April
3
to -- is the April-May time period what we
4
would define as spring or should I go into
5
the first half of June, include the first
6
half of June in that?
7
MR. TWAIT: With the Chris Yoder
8
methodology, he's considering the summer from
9
June 16th to September 15th.
10
MS. FRANZETTI: And so for the cycles
11
of increasing and decreasing temperatures
12
which apply to the fall and springtime
13
period, what did the Agency do here to
14
implement that theory of needing increasing
15
and decreasing temperatures for the spring?
16
And start first by what are you defining as
17
spring based on how the period average months
18
and dates are included?
19
MR. TWAIT: We didn't do anything
20
specific for springtime. What we did is for
21
the non-summer months we looked at the
22
background temperatures. And once again,
23
that was the ambient station plus MWRD data
24
further effluent and we separated it into the
L.A. REPORTING (312) 419-9292
216
1
same period averages that Chris had in his
2
report and we took the 75th percentile and
3
made that into the period average.
4
MS. FRANZETTI: Okay. Let me just
5
break that down and make sure we all
6
understand that. When you say you took the
7
same period averages as Mr. Yoder did, you
8
mean if he split the month into two different
9
periods as listed here, for example, for
10
April, April 1st to 15th has a period average
11
of 60.8 degrees Fahrenheit, April 16th to
12
30th has a different period average of 62.1,
13
if he split the month of April, you split the
14
month of April, correct?
15
MR. TWAIT: That is correct.
16
MS. FRANZETTI: Okay. So that is what
17
you meant by following his same period
18
averages?
19
MR. TWAIT: Yes.
20
MS. FRANZETTI: Okay. Now with
21
respect to getting the thermal values for
22
each of those period averages time periods
23
you created, that's where you used the
24
background temperature data which was, as you
L.A. REPORTING (312) 419-9292
217
1
previously explained, either the 75th
2
percentile thermal temperature level of the
3
district's effluent discharge or if it was --
4
I forget what you said -- more stringent you
5
use the --
6
MR. TWAIT: We use the least stringent
7
number between the district's effluent data
8
and the receiving stream data.
9
MS. FRANZETTI: Okay. What I'm not
10
understanding or grasping is how the use in
11
the fall, winter and spring -- well, let me
12
strike that.
13
Am I understanding correctly that
14
the use of the district's effluent
15
temperature and the stream station, whichever
16
was the least stringent, was that done for
17
fall, winter, spring?
18
MR. TWAIT: No. That was done for
19
each of the periods here. Like January 1st
20
through 31st we looked at the effluent data
21
and we looked at the stream data.
22
For February 1st through 28th we
23
looked at the effluent data and the stream
24
data and so on and so forth.
L.A. REPORTING (312) 419-9292
218
1
MS. FRANZETTI: So the period average
2
is totally determined by either the
3
district's effluent data or that background
4
stream sampling station throughout the year?
5
MR. TWAIT: For the period average,
6
yes.
7
MR. ETTINGER: Were you going to ask
8
about the 75th percentile?
9
MS. FRANZETTI: I'm going to get
10
there. I'm just first trying to make sure I
11
understand what the period is based on.
12
MR. TWAIT: That's for the period
13
average for the non-summer months.
14
MS. FRANZETTI: But see, Mr. Twait,
15
that's what I was trying to get at before.
16
What's the non-summer months?
17
MR. TWAIT: That is everything other
18
than June 16th through the September 15th.
19
MS. FRANZETTI: Okay.
20
MR. TWAIT: Those are the dates for
21
his summer criteria.
22
MS. FRANZETTI: Okay. So for those
23
non-summer months that run from
24
September 16th through June 15th, how does
L.A. REPORTING (312) 419-9292
219
1
the use of the district's effluent
2
temperatures account for or address this need
3
for, quote, unquote, seasonal norms?
4
MR. TWAIT: I guess nothing in this
5
system is, quote, unquote, normal. We had
6
originally chosen just to use the ambient
7
station but the district made the comment and
8
we accepted that during parts of the year
9
they are the background. I mean, all the
10
flow is theirs and so --
11
MS. FRANZETTI: Because it's an
12
effluent dominated stream --
13
MR. TWAIT: Yes.
14
MS. FRANZETTI: -- during most of the
15
parts of the year?
16
MR. TWAIT: Yes.
17
MS. FRANZETTI: Okay. So given that
18
it's not really a normal stream and it is an
19
effluent dominated stream, isn't that really
20
what your numbers reflect, your proposed
21
thermal standards, and not really trying to
22
accommodate seasonal norms?
23
MR. TWAIT: For these waters, those
24
are basically the norms.
L.A. REPORTING (312) 419-9292
220
1
MS. FRANZETTI: Okay.
2
MR. TWAIT: Seasonal norms.
3
MS. FRANZETTI: And same question with
4
respect to the increasing and decreasing
5
temperature cycles, does the district's
6
effluent reflect that or is that really not a
7
concept that comes into play in the thermal
8
water quality standards that have been
9
proposed here?
10
MR. TWAIT: I believe the district's
11
effluent temperature does increase in the
12
spring/fall and in the summer, but not as
13
much as the receiving stream did and so in
14
those cases we used the receiving stream
15
data.
16
MS. FRANZETTI: Mr. Twait, I'm
17
realizing I'm not sure when you said earlier
18
that you used the least stringent between the
19
district and the receiving water background
20
station. What least stringent means based on
21
that last answer, because I think you just
22
said if the district's effluent temperature
23
didn't increase as much or decrease as much
24
as the background station, you went with the
L.A. REPORTING (312) 419-9292
221
1
background station value?
2
And, I'm sorry, I'll explain. I'm
3
thinking that a greater decrease by the
4
background station would actually result in a
5
more stringent standard, that's why I'm
6
confused.
7
MR. TWAIT: We did not look at how
8
much it -- I'm just -- I did that just to
9
explain there's not as much variation in the
10
MWRD's effluent as there is in a receiving
11
stream during the spring and fall.
12
For each of these months or half
13
months for the non-summer period, we took the
14
75th percentile of the effluent and of the
15
receiving stream and we used the least
16
stringent. It didn't matter which was going
17
up or down the most.
18
MR. ETTINGER: By least stringent you
19
mean the higher number?
20
MR. TWAIT: Yes.
21
MS. FRANZETTI: Mr. Ettinger, I'll get
22
to the 75th percentile question but not for a
23
few more questions.
24
MR. ETTINGER: I'll let you do it
L.A. REPORTING (312) 419-9292
222
1
whenever you're ready.
2
MS. FRANZETTI: I'm not ignoring. I
3
figure I'll just stay with the script.
4
Question number three, to what
5
extent, if at all, has the Illinois EPA
6
considered whether the temperatures it has
7
proposed for, quote, maintaining seasonal
8
norms and cycles, end quote, necessarily
9
reflect the thermal prerequisites of the
10
aquatic species that inhabit or that it
11
anticipates will inhabit CAWS and the Upper
12
Dresden Pool?
13
MR. TWAIT: Maintaining seasonal norms
14
and cycles is for reproduction in the fish
15
and the answer to your question is the Agency
16
has not specifically looked at the
17
requirements of the fish in the Upper Dresden
18
Island Pool or the CAWS or Brandon Road.
19
HEARING OFFICER TIPSORD: Mr. Safley?
20
MR. SAFLEY: Tom Safley this time on
21
behalf of Corn Products. I want, Mr. Twait,
22
to zero in a little bit on the CAWS and
23
Chicago Sanitary and Ship Canal. And your
24
answer that you just gave was that the change
L.A. REPORTING (312) 419-9292
223
1
in seasonal temperature is meant to address
2
or take into account reproduction; is that
3
correct?
4
MR. TWAIT: Yes.
5
MR. SAFLEY: Okay. Earlier in your
6
testimony today and also in your pre-filed
7
testimony you stated that at least some
8
portions of the Chicago Area Waterway System,
9
and I think in particular the Chicago
10
Sanitary and Ship Canal are -- the Agency is
11
not protecting those waters to protect early
12
life stages; is that correct?
13
MR. TWAIT: Yes.
14
MR. SAFLEY: If that's the case, what
15
is the need for the seasonal variation in the
16
Chicago Sanitary and Ship Canal, for example,
17
if the Agency does not expect early life
18
stages to be present?
19
MR. TWAIT: The Agency is not
20
protecting for early life stages because the
21
habitat is not there for the early life
22
stages. However, it was thought that the
23
fish could swim upstream or downstream to
24
find the habitat to spawn, so we're trying to
L.A. REPORTING (312) 419-9292
224
1
protect their ability to spawn.
2
MR. SAFLEY: And just so I understand,
3
it's the Agency's position that the
4
temperature in, for example, the Chicago
5
Sanitary and Ship Canal does have an effect
6
on the reproduction of the fish in that area
7
even if they're not spawning in that water
8
body?
9
MR. TWAIT: That is the theory behind
10
wanting to protect for the seasonal norms,
11
yes.
12
MR. SAFLEY: Okay. And what's the
13
support for that theory or information that
14
the Agency relied upon?
15
MR. TWAIT: That is all within
16
Attachment 15 in Chris Yoder's.
17
HEARING OFFICER TIPSORD: Exhibit 15?
18
MR. TWAIT: Exhibit 15. Thank you.
19
MR. SAFLEY: Those are my only
20
questions.
21
HEARING OFFICER TIPSORD: Mr. Fort,
22
you had a follow-up?
23
MR. FORT: Mr. Twait, your comments
24
here about the fish swim, is that -- can you
L.A. REPORTING (312) 419-9292
225
1
comment upon the number of locks and damns
2
there are in the Chicago Sanitary and Ship
3
Canal and how quickly the fish will swim up
4
and through those devices?
5
MR. TWAIT: I think there's only one
6
lock and damn that is on the lower portion of
7
the Sanitary and Ship Canal and so the fish
8
could swim up into the Cal Sag Channel or
9
farther up to where there's available habitat
10
on the Sanitary and Ship Canal. And if
11
they're in the Brandon Pool, then their
12
downstream is Brandon Lock and Damn, upstream
13
is the Lockport Lock and Damn, however, they
14
can get to the Des Plaines River in the Upper
15
Des Plaines River where it's general use
16
water quality standards.
17
MR. FORT: I think I have to look at a
18
map for various lock and damns, but go ahead.
19
I'll look at that before I go any further.
20
MS. FRANZETTI: Can I ask a question
21
to make sure I understand what you're saying?
22
I understand that the Agency believes that
23
maintaining seasonal norms and cycles is
24
necessary for reproduction in fish. But then
L.A. REPORTING (312) 419-9292
226
1
in answer to Mr. Safley's questions you were
2
saying but it's also necessary to maintain
3
those seasonal norms and cycles in areas
4
where you don't expect reproduction because
5
fish may be passing through those areas to
6
get to areas where they can reproduce,
7
correct?
8
MR. TWAIT: Yes.
9
MS. FRANZETTI: Okay. So if I'm a
10
fish and I'm in the mood for love and I got
11
to get to where I need, you're saying that if
12
I happen to pass through some waters that are
13
not consistent with those seasonal norms,
14
when I get to the other side I'm not going to
15
be able to reproduce?
16
MR. SULSKI: I'm thinking of Yoder --
17
MS. FRANZETTI: It doesn't seem to
18
make sense.
19
MR. SULSKI: Yes. No. I'm thinking
20
of Yoder's testimony that in addition to
21
reproductive times, you have a
22
pre-reproductive time period where adults
23
have to go through a seasonal norm to ready
24
themselves for reproduction.
L.A. REPORTING (312) 419-9292
227
1
So if you have a fish residing in
2
or passing through an area that doesn't have
3
those seasonal norms, it's not
4
morphologically getting ready for
5
reproduction.
6
MS. FRANZETTI: So the fish that tend
7
to live in the Sanitary and Ship Canal,
8
you're saying they will go elsewhere to
9
reproduce and so they need this seasonal norm
10
to get them ready to do that?
11
MR. SULSKI: That's my understanding
12
of the Yoder's testimony.
13
MS. FRANZETTI: I understand that.
14
You're trying to relay what he said. Okay.
15
MR. TWAIT: I don't know that it's
16
necessarily just they're going somewhere else
17
to reproduce, but they will go somewhere else
18
to spawn. I don't know if there's much of a
19
difference there.
20
MR. SAFLEY: If I could follow-up
21
again? Tom Safley. That was going to be my
22
question in relating back to a response,
23
Mr. Twait, that you gave to an earlier
24
question of Ms. Franzetti. Has the Agency
L.A. REPORTING (312) 419-9292
228
1
looked at what temperatures are conducive to
2
spawning as opposed to what temperatures are
3
conducive to this pre-spawning period that
4
Mr. Sulski mentioned?
5
MR. SMOGOR: If you're asking for a
6
specific temperature as to what cues the --
7
acts as cues, I don't know specific
8
temperatures at which fish are cued or
9
triggered.
10
MR. SAFLEY: And I didn't necessarily
11
mean to ask for specific temperatures, but
12
Ms. Franzetti's question three was has the
13
Agency looked at how this maintenance of
14
seasonal norms is going to affect the thermal
15
prerequisites of the fishing and I thought
16
Mr. Twait's answer was we haven't looked at
17
that question. I was trying to hone in even
18
more specifically and make sure I'm correct
19
that the Agency has not considered the issue
20
of essentially is it necessary for the same
21
seasonal variations to occur at least to the
22
same degree if the spawning is not occurring
23
in that water body and all that's occurring
24
in that water body is the pre-spawning
L.A. REPORTING (312) 419-9292
229
1
period. And it sounds to me like the Agency
2
has not separated that issue and looked
3
specifically at that issue. I just wanted to
4
make sure that I was correct about that.
5
MR. SULSKI: Well, I think that the
6
response to the question was whether they're
7
spawning in that waterway or not, if they're
8
residing there, they have the ability to
9
reside there for periods of time, if you
10
disrupt the seasonal norms, you have the
11
potential of morphologically disrupting their
12
processes so that they wouldn't be ready to
13
spawn or they wouldn't spawn or they
14
wouldn't, you know --
15
MR. SAFLEY: Right. And I apologize.
16
I was just trying to get a little bit more
17
specific if it was possible or the Agency had
18
had any data on whether you could separate
19
outside temperatures at the time of spawning
20
as opposed to temperatures pre-spawning and
21
what kind of effect that might. I just was
22
asking if that --
23
MS. WILLIAMS: Can I ask a follow-up,
24
too, I guess or a restatement? I think part
L.A. REPORTING (312) 419-9292
230
1
of what you're asking is is there data out
2
there that we're aware of that would tell us
3
the difference in the temperature needs or
4
the specifics of the temperature needs for
5
this gametogenesis in general?
6
MR. SMOGOR: My experience with some
7
of the state fishery fish texts that have
8
species-by-species accounts of the animal's
9
natural history and observations made on the
10
species, there are observations of water
11
temperatures at which fish are found in
12
particular spawning colors or spawning
13
conditions and even temperatures available at
14
which -- that are associated with
15
observations of actual spawning of fish.
16
I don't know of any specifics on
17
temperatures at which fish first start to --
18
you know, internally maybe are triggered to
19
get ready for the spawning season. I'm not
20
familiar with any detail other than that.
21
MR. SAFLEY: And that was going to be
22
my next follow-up question. Is there any way
23
or does the Agency have any information on
24
whether fish need a higher temperature or a
L.A. REPORTING (312) 419-9292
231
1
lower temperature at that pre-spawning stage
2
as opposed to at the spawning stage, and it
3
sounds like the answer to that question is,
4
no, the Agency does not have any information
5
on that.
6
MR. TWAIT: While Roy was talking here
7
I did find some. In Appendix Table Z3 of
8
Attachment 1 of Chris Yoder's pre-filed
9
testimony -- I'm sorry, maybe it's not
10
attachment one. It's Attachment 3 of Chris
11
Yoder's pre-filed testimony.
12
HEARING OFFICER TIPSORD: Which is
13
Exhibit 16.
14
MR. SAFLEY: So I should look at that
15
is what you're saying?
16
MS. FRANZETTI: Hang on. Let's let
17
Mr. Twait tell us what type of information is
18
in that appendix.
19
MR. TWAIT: The Agency has not looked
20
at this specifically. And this only talks
21
about spawning periods and associated low and
22
high temperatures, not necessarily what they
23
need for gametogenesis.
24
MS. FRANZETTI: Or as I like to call
L.A. REPORTING (312) 419-9292
232
1
it, just getting ready.
2
HEARING OFFICER TIPSORD: Mr. Andes,
3
you had a follow-up, as well?
4
MR. ANDES: Yes. We're talking a lot
5
about spawning, but I seem to recall a
6
discussion about yesterday, correct me if I'm
7
wrong, but yesterday there wasn't any actual
8
evidence of spawning, it was simply that
9
there were fish collected that were smaller
10
than normal; am I right?
11
MR. SMOGOR: If you're referring to, I
12
think, some of my testimony yesterday, you
13
asked is there evidence of spawning in
14
Chicago Area Waterway System and maybe I
15
didn't use the word inferred, but there was
16
inferred evidence of spawning, which is
17
not -- I agree that's not direct observations
18
of fish spawning.
19
But the inference is that if small
20
individuals do occur across several species,
21
it's likely that they did occur -- that they
22
did spawn somewhere in the system to allow
23
the occurrence of those small sub-adult
24
individuals.
L.A. REPORTING (312) 419-9292
233
1
MR. ANDES: Somewhere in the system?
2
MR. SMOGOR: Somewhere in the system.
3
I cannot infer exactly where they did spawn.
4
MR. ANDES: Okay.
5
HEARING OFFICER TIPSORD: Mr. Safley?
6
MR. SAFLEY: If I could just continue,
7
we've been talking about reproduction, does
8
the changes in -- the seasonal changes in
9
temperature, does that have any relevance to
10
the development of early life stages or is
11
the only issue with regard to seasonal
12
changes the reproductive activity?
13
MR. TWAIT: I believe it's the
14
reproductive activity.
15
MS. FRANZETTI: If I can just distill
16
a few things from this? As we sit here today
17
we don't know whether every species needs
18
this increasing, decreasing temperature or
19
seasonal norms, whichever, in order to ready
20
itself to reproduce, correct? We don't know
21
that all of them need this?
22
MR. SMOGOR: I don't know that.
23
MS. FRANZETTI: Well --
24
MR. SULSKI: We do know one thing,
L.A. REPORTING (312) 419-9292
234
1
though, just an obvious thing is that
2
relatively speaking we've been around here
3
for a very short period of time and the
4
aquatic wildlife within our area developed
5
over thousands and thousands of years and
6
developed in a system that had seasonal
7
norms. I just wanted to throw that out.
8
MS. FRANZETTI: Can I just finish
9
this? Couple more just on this. You
10
don't --
11
MR. SULSKI: Sex and evolution, where
12
can we go next?
13
MS. FRANZETTI: And I'm trying to be
14
careful. Isn't it true that gametogenesis
15
has only been demonstrated for a few species?
16
And, again, if you don't know, say you don't
17
know.
18
MR. SMOGOR: My understanding of the
19
word gametogenesis is gametes are the
20
reproductive sperm and eggs and genesis is
21
creation of sperm and eggs, so gametogenesis
22
happens in any reproducing -- sexually
23
reproducing organism.
24
MS. FRANZETTI: Okay. Let me be more
L.A. REPORTING (312) 419-9292
235
1
specific. That you need the cool period
2
to --
3
MR. SMOGOR: To get ready.
4
MS. FRANZETTI: To get ready.
5
MR. SMOGOR: I'm not aware that for
6
every species it's been absolutely proven
7
that a cool period is needed to get ready.
8
MS. FRANZETTI: And are you aware that
9
it's only been proven for a few species that
10
it is needed?
11
MR. SMOGOR: No, I'm not aware of
12
that.
13
MS. FRANZETTI: Okay. That's fine.
14
And, therefore, it is possible that the
15
species that do need it are not species that
16
are either present or are going to be present
17
in the Chicago Sanitary and Ship Canal or
18
Brandon Pool?
19
MR. SMOGOR: Not knowing -- taking
20
your word that it's only been proven for a
21
few species, not knowing those species and
22
not knowing much about that information, I
23
can't comment any further on that.
24
MS. FRANZETTI: Okay. Mr. Ettinger?
L.A. REPORTING (312) 419-9292
236
1
MR. ETTINGER: There's two things that
2
have been left hanging and I don't know
3
whether you're getting here. One is the 75th
4
percentile problem.
5
MS. FRANZETTI: Going to get there.
6
MR. ETTINGER: The other relates to
7
this same set of issues is whether -- maybe
8
I'll ask this now and maybe pursue it more.
9
Is part of the rationale behind setting these
10
period averages to protect against cold
11
shock?
12
MR. TWAIT: No.
13
MR. ETTINGER: Is there anything
14
then -- if we took away the period averages
15
here, would there be anything to protect
16
against cold shock in these systems?
17
MR. TWAIT: No.
18
MR. ETTINGER: Thank you.
19
HEARING OFFICER TIPSORD: Mr. Andes?
20
MR. ANDES: Is there any evidence that
21
cold shock syndrome is a phenomenon that
22
exists in these types of water bodies or
23
these types of species?
24
MR. TWAIT: We know that cold shock
L.A. REPORTING (312) 419-9292
237
1
does happen and we've seen it in perched
2
lakes where the power plant has shutdown and
3
they get a fish kill because the water got
4
too cold too fast.
5
I don't necessarily know that cold
6
shock is an issue for a stream like this.
7
MR. ANDES: Thank you.
8
MR. SULSKI: I would add to that we
9
don't know. It could be because of the
10
earlier testimony about what happens when we
11
have late August -- I mean, early August,
12
late July storm events that drop the
13
temperature. However, there's multiple
14
factors that are occurring there.
15
MS. FRANZETTI: Again, just so we're
16
clear, these standards don't prevent Midwest
17
Generation from shutting down a plant for a
18
few days, correct?
19
MR. TWAIT: Correct. There is nothing
20
in Illinois, there is nothing even in general
21
use water quality standards that prevent cold
22
shock.
23
MS. FRANZETTI: And would you agree
24
you really can't write a standard that
L.A. REPORTING (312) 419-9292
238
1
compels a discharger not to shut down?
2
MR. TWAIT: Well, it would be tough to
3
write a regulation. However, I do know that
4
when there are fish kills, when a plant shuts
5
down and they do have fish kills, there are
6
repercussions.
7
MR. ETTINGER: You can write a
8
standard to keep the temperature from there
9
being such a great differential between the
10
ambient temperature and the heated
11
temperature such that if you shut down a
12
plant rapidly there won't be cold shock?
13
MR. TWAIT: I suppose we could write
14
something like that. We -- I'll leave it at
15
that.
16
MR. ETTINGER: Thank you.
17
MS. FRANZETTI: Moving on, I think
18
number four you've answered. It was meant to
19
just identify where the Agency's approach to
20
the non-summer period thermal water quality
21
standards is the same as the approach
22
suggested by Mr. Yoder and where does it
23
differ.
24
And I think you've said it's just
L.A. REPORTING (312) 419-9292
239
1
basically the use of the Midwest Gen effluent
2
discharge temps in certain instances rather
3
than a, quote, unquote, true --
4
MR. TWAIT: Midwest Gen?
5
MS. FRANZETTI: I'm sorry. Thank you,
6
Mr. Twait. The Water Reclamation District's
7
effluent temperature -- it was wishful
8
thinking on my part -- instead of a true
9
background ambient station?
10
MR. TWAIT: There are more differences
11
than that.
12
MS. FRANZETTI: For the -- again, for
13
the non-summer period?
14
MR. TWAIT: Yes.
15
MS. FRANZETTI: Okay. Go ahead then
16
if there are.
17
MR. TWAIT: The MBI report suggests
18
using a daily maximum based on background
19
temperature using a statistical method and
20
they suggested 98th percentile. And once
21
again, that would be for the daily maximum.
22
And when you choose a limit based
23
on the 98th percentile, you're automatically
24
choosing a 2 percent exceedance rate. The
L.A. REPORTING (312) 419-9292
240
1
Agency decided not to go with that statistic
2
and instead used the summer maximum and
3
applied that year round.
4
The other difference is the MBI
5
report suggested using a geometrical mean of
6
the background temperature as a period
7
average and the Agency used a 75th percentile
8
for the period average. And the agency used
9
a different ambient site for the, quote,
10
unquote, background, including the use of the
11
MWRD facilities.
12
MS. FRANZETTI: Okay. Why did the
13
Agency decide to use 75th percentile rather
14
than the geometric mean?
15
MR. TWAIT: Part of that was based on
16
my participation in the ORSANCO work group.
17
They were looking at -- they were looking to
18
use the geometrical mean also based on Chris
19
Yoder's report. And they started looking at
20
it year by year and seeing the rate of
21
exceedances and decided that the exceedance
22
amount was --
23
MS. FRANZETTI: High.
24
MR. TWAIT: -- was high or
L.A. REPORTING (312) 419-9292
241
1
unacceptable. I don't know that I'd say it's
2
high, but there was periodic exceedances,
3
and I'm going to say every year based upon
4
all the period averages, so they decided to
5
use something different.
6
And at one time they were using
7
the 75th percentile, although I think they
8
ended up using something different than that.
9
MS. FRANZETTI: Okay. So I think also
10
basically what you're saying is ORSANCO
11
decided like the Agency not to follow Yoder's
12
recommendation of the geometric mean?
13
MR. TWAIT: Yes.
14
MS. FRANZETTI: With respect to the
15
Agency's decision to use the summer maximum
16
applied throughout the year as the daily max
17
rather than the 98 percent, was the reason
18
there because the 98 percent fills in and
19
2 percent of the time everybody is going to
20
exceed it?
21
MR. TWAIT: That was -- yes.
22
MS. FRANZETTI: Any other reason? Not
23
staying there is one, I just want to make
24
sure we understand the reason for the
L.A. REPORTING (312) 419-9292
242
1
decision.
2
MR. TWAIT: I think that was the only
3
reason. And we looked at using some
4
different statistical method, but we decided
5
instead to just take the summer maximum
6
throughout the year.
7
MS. FRANZETTI: Actually, how did you
8
come up with that alternative of using the
9
summer max throughout the year? I mean, is
10
that -- had another group like ORSANCO done
11
that?
12
MR. TWAIT: No. That was basically
13
Toby's idea.
14
MS. FRANZETTI: Sure, let's blame him,
15
he's gone.
16
MR. TWAIT: Yeah, he's not here, I'm
17
going to blame him. I had suggested using --
18
let me see if I can find it. I had suggested
19
using the 75th percentile plus 1.5 times the
20
inner cortile range or the 75th percentile
21
plus 2.5 times the inner cortile range, and
22
those are all statistical values, the inner
23
cortile range. I believe it's called
24
nonparametric.
L.A. REPORTING (312) 419-9292
243
1
And we were noticing some
2
exceedances anyway from that data and Toby
3
just -- we talked to Chris and I don't know
4
that Chris would agree but we decided that
5
the period average would take care of the
6
gametogenesis in the reproduction
7
introduction and so we decided to go with the
8
daily maximum throughout the year.
9
MS. FRANZETTI: Moving on to question
10
five, on Page 83 of the Statement of Reasons
11
and Page 13 of the Twait pre-filed testimony
12
it is stated that, quote, the monitoring
13
location at Route 83 on Chicago Sanitary and
14
Ship Canal was used at the, quote, background
15
location because it was not directly
16
influenced by thermal sources such as cooling
17
water or Lake Michigan and was believed to be
18
representative of, quote, background
19
temperatures, end quote.
20
Explain how the Agency defines
21
background as used in this quotation and as
22
applied to the Chicago Sanitary and Ship
23
Canal and Lower Des Plaines?
24
MR. TWAIT: This system does not have
L.A. REPORTING (312) 419-9292
244
1
any, quote, unquote, background temperatures.
2
Some areas are influenced by Lake Michigan
3
and would have cool waters, some areas are
4
influenced by thermal sources and some areas
5
are influenced by the district's discharge.
6
The Agency tried to choose a
7
non-summer thermal criteria that was
8
reasonable and we ended up choosing the Route
9
83 monitoring location on the Chicago
10
Sanitary and Ship Canal.
11
MS. FRANZETTI: Okay.
12
MS. WILLIAMS: A related follow-up at
13
this point. Was that different from the
14
background station Mr. Yoder suggested?
15
MR. TWAIT: Yes. Chris Yoder's
16
suggested background station was the Route 83
17
monitoring location on the Cal Sag Channel.
18
MS. WILLIAMS: And can you explain
19
what the difference would be between those
20
two?
21
MR. TWAIT: The Agency felt that that
22
station was much more influenced by the lake
23
water and it was much cooler than the station
24
that we chose.
L.A. REPORTING (312) 419-9292
245
1
MS. WILLIAMS: Thank you. I see Route
2
83 and I just assumed they're the same thing,
3
so I thought it would help to clarify that
4
there's two Route 83 stations.
5
MS. FRANZETTI: Thank you, Counsel.
6
Moving on to number six. On Page 13 of the
7
Twait pre-filed testimony it is stated that,
8
quote, because the source water of the CAWS
9
is composed of the MWRDGC wastewater
10
treatment plant effluence, the temperatures
11
of these waters can be expected to exceed
12
other measures of background or ambient
13
temperature at certain times of the year.
14
Consequently, the Agency decided to use the
15
effluent temperature from the MWRDGC's north
16
side, Calumet and Stickney facility as the
17
background temperature instead of using
18
temperatures at the Route 83 Chicago Sanitary
19
and Ship Canal station during periods of the
20
non-summer months when the effluent
21
temperature was higher than the background
22
temperature. These periods were January,
23
February, October 1 to 15, November and
24
December, see also Statement of Reasons at
L.A. REPORTING (312) 419-9292
246
1
Page 83.
2
I think we've covered Subpart A,
3
what's the purpose of background
4
temperatures. And I think just based on your
5
last answer, do you agree that wastewater
6
treatment plants effluent really isn't
7
accurately considered background temperature
8
for a waterway in the common understanding of
9
the term background temperature.
10
MR. TWAIT: For normal waterways, I
11
would tend to agree. But in this case, since
12
the majority of the flow is from the
13
district, we thought that that was a -- we
14
thought it was appropriate to use it as a
15
background temperature.
16
MS. FRANZETTI: Moving on to C. As
17
stated at Page 13 of the Twait pre-filed
18
testimony, the use of the MWRDGC effluent
19
temperature data as background constituted an
20
alteration to the recommendations in Yoder's
21
temperature report by the Illinois EPA.
22
Is it correct that the reason this
23
alteration was made is as stated at Page 14
24
of Twait's pre-filed testimony, namely that
L.A. REPORTING (312) 419-9292
247
1
using Yoder's recommendations for how to
2
derive the thermal water quality standards
3
would have resulted in standards that were
4
lower than the temperature of the district's
5
effluence and thus, quote, would have
6
required installation of cooling towers or
7
other treatment technology to reduce the
8
temperature of these effluents, these
9
effluents being the district's effluent?
10
MR. TWAIT: I know that's my
11
statement.
12
MS. FRANZETTI: Well, Mr. Twait, I
13
recall earlier I think you did mention that
14
the district commented --
15
MR. TWAIT: Yes, they did.
16
MS. FRANZETTI: -- on a prior proposed
17
set of thermal standards which did use the
18
Route 83 station, and I can't recall whether
19
it was the ship canal.
20
MR. TWAIT: It was the ship canal.
21
MS. FRANZETTI: Wasn't there a comment
22
that if you proceed with this approach, we're
23
going to have to cool the effluent from our
24
plants?
L.A. REPORTING (312) 419-9292
248
1
MR. TWAIT: Well, when we talked to
2
Mr. Yoder and asked him how he would proceed,
3
he suggested that we look at giving MWRDGC a
4
mixing zone. And our water quality standards
5
would not be written in such a way to give
6
them a mixing zone for the thermal water
7
quality standards. That's not how we write
8
water quality standards.
9
MS. FRANZETTI: Well, Mr. Twait, given
10
that they dominate the waterway at many times
11
of year, right?
12
MR. TWAIT: Yes.
13
MS. FRANZETTI: Well, how could you
14
give them a mixing zone? Wouldn't that be
15
that they're basically -- you'd have to give
16
them the whole water column?
17
MR. TWAIT: For the north side and
18
Calumet facilities, yeah, that would be
19
correct.
20
MS. FRANZETTI: As you said, our
21
mixing zone regs have a requirements for
22
things like a zone of passage, correct?
23
MR. TWAIT: Correct.
24
MS. FRANZETTI: And that would have
L.A. REPORTING (312) 419-9292
249
1
violated that, right?
2
MR. TWAIT: Yes. But I don't know
3
that they would have had any particular
4
problem at those two facilities. I'm not
5
sure but, yes, that's a correct statement
6
that they mentioned that they were the
7
background and that they would have trouble
8
meeting the water quality standards and their
9
discharge.
10
HEARING OFFICER TIPSORD: Mr. Andes
11
has a follow-up.
12
MR. ANDES: Mr. Twait, the concept of
13
in an effluent dominated water body, using
14
the characteristics of the effluent as
15
background is not a new concept, right?
16
MR. TWAIT: For which part of -- I
17
don't quite understand the question.
18
MS. WILLIAMS: Is it specific to
19
thermal that you're asking the question?
20
MR. ANDES: I was speaking more
21
generally, but if you want to address
22
thermal, that's fine.
23
What I'm trying to ask really is
24
was the primary basis for making this
L.A. REPORTING (312) 419-9292
250
1
decision that, as you stated earlier, the
2
Agency felt it was appropriate to use the
3
temperature of the effluence because it
4
dominates the water body and, therefore, was
5
appropriate to use that as background; is
6
that right?
7
MR. TWAIT: Yes.
8
MR. ANDES: So the Agency felt that
9
that particular way of dealing with it was
10
appropriate from a regulatory perspective?
11
MR. TWAIT: Yes.
12
MR. ANDES: So it wasn't the Agency's
13
intent to bail out MWRD by making this
14
treatment, rather it felt this is an
15
appropriate regulatory mechanism?
16
MR. TWAIT: We did think it was an
17
appropriate mechanism.
18
MR. ANDES: Thank you.
19
MS. FRANZETTI: That also bailed out
20
the MWRDC, right?
21
MR. TWAIT: I guess it would have.
22
MS. FRANZETTI: Moving on to D, is it
23
correct to state that the alteration to the
24
Yoder approach to deriving thermal water
L.A. REPORTING (312) 419-9292
251
1
quality standards resulted in an
2
accommodation to the MWRDGC so that it would
3
not incur the economic costs of having to
4
comply with the non-summer thermal water
5
quality standards?
6
MR. TWAIT: The Agency believes that
7
that's an appropriate approach.
8
MS. FRANZETTI: Did the Agency perform
9
any economic analysis with respect to the
10
MWRGDC?
11
MR. TWAIT: No.
12
MS. FRANZETTI: With respect to E,
13
does the Agency have any underlying rationale
14
for the decision to set the thermal water
15
quality standards based on the goal of
16
avoiding cooling costs for a particular
17
discharger?
18
MR. ANDES: I object to the
19
characterization. That's the goal of the
20
rule.
21
HEARING OFFICER TIPSORD: Could you
22
rephrase?
23
MS. FRANZETTI: Well, is it fair to
24
alter your proposed thermal standards, as you
L.A. REPORTING (312) 419-9292
252
1
did, so as not to compel one discharger to
2
install supplemental cooling while forcing
3
other dischargers to do so?
4
MR. ANDES: I'm going to object again.
5
That's saying it was done so as to avoid
6
those costs.
7
MS. FRANZETTI: Well, the testimony
8
will speak for itself as well as the
9
pre-filed written testimony.
10
MR. ETTINGER: Is it really -- I know
11
it's rhetorically fun, but does it really
12
advance us to ask the witness to answer what
13
is fair at this point? I guess we can all
14
make judgments on that.
15
HEARING OFFICER TIPSORD: I guess I
16
understand the objections, but I also
17
understand where Ms. Franzetti is going in
18
looking for some economics here as to why
19
economically you didn't perform an economic
20
analysis I'm assuming before you decided this
21
was a more appropriate method, correct?
22
MR. TWAIT: Correct.
23
HEARING OFFICER TIPSORD: But you
24
didn't perform an economic analysis to make
L.A. REPORTING (312) 419-9292
253
1
that determination?
2
MR. TWAIT: We did not.
3
HEARING OFFICER TIPSORD: But aren't
4
you concerned that on the one hand this
5
decision has meant that, economically,
6
certain dischargers will not have to perform
7
functions that other dischargers are going to
8
in the same rulemaking? I mean, is there --
9
there does seem to be a disparity there and
10
I'm wondering if you can explain or talk to
11
me, explain on the record why that would be.
12
Why on the one hand you did it one way, but
13
not on the other? Why you're not giving the
14
break to all dischargers instead of just --
15
and perhaps break is not the right word.
16
Remember, these are just to
17
enhance the record. This does not mean any
18
predisposition on the part of the Board. I'm
19
trying to enhance the record here and get the
20
explanation of what seems to be a disparity.
21
MS. WILLHITE: I think I'm going to
22
take that one. I think the main basis of
23
this decision was the fact that the flow of
24
this water system comes from the district's
L.A. REPORTING (312) 419-9292
254
1
effluence. As you've noted effluent
2
dominated, I think that's the main rationale.
3
And we acknowledge that it does
4
have this result of differential impact. I
5
think that's often the case when there is a
6
standard setting or permit limits put in
7
place there can be disparities between
8
requirements on dischargers.
9
But my understanding of the main
10
rationale is focused on that -- for the
11
system we're talking about, the effluent
12
forms the waterway.
13
MS. FRANZETTI: Mr. Dimond?
14
MR. DIMOND: Ms. Willhite, if the MWRD
15
gets a break because --
16
MR. ANDES: I'll object to that
17
characterization.
18
MR. DIMOND: If the MWRD doesn't have
19
to install cooling systems because their
20
discharge is effluent, why shouldn't all the
21
other dischargers who discharge effluent get
22
the same consideration? The rationale could
23
apply to any discharger, but you've decided
24
selectively only to apply it to one
L.A. REPORTING (312) 419-9292
255
1
discharger.
2
MS. WILLHITE: Well, that may be your
3
perception of it, but that wasn't the
4
rationale.
5
MR. FORT: Well, just to follow this
6
up, why make a distinction even on things
7
like the nitrification facility, which my
8
client, Citgo, operates in order to meet the
9
ammonia requirements? So it has very similar
10
technology even to what the district does,
11
but because of the mixing zone rule being the
12
way it is, we are affected adversely by this
13
decision as it plays out.
14
MS. WILLHITE: I'm struggling on the
15
applicability here of the analogy.
16
MR. FORT: We have a nitrification
17
facility that we have to heat, particularly
18
in the winter, in order to make sure the bugs
19
grow and do their job, same technology, same
20
kind of treatment, not exactly the same, but
21
same principles that the district has.
22
The standard as you proposed it is
23
going to affect us mostly because of the
24
upstream temperature, not our own
L.A. REPORTING (312) 419-9292
256
1
temperature.
2
MS. WILLIAMS: Can you explain how?
3
MR. FORT: There's no -- there will be
4
no mixing zone, so what's the rationale on
5
that technology basis to make a distinction
6
one from the other?
7
MS. WILLHITE: I guess it goes back to
8
my original comment that -- at least my
9
understanding, and I haven't studied it
10
carefully, is that in your portion of the
11
river there is other flow coming besides your
12
own, you're not forming the waterway as is
13
the case with the district.
14
MR. ETTINGER: I guess we're all
15
seeing the slippery slope that happens when
16
you cut deals with particular dischargers,
17
but in this case I would ask to --
18
MS. WILLHITE: Excuse me?
19
HEARING OFFICER TIPSORD: Objection
20
noted.
21
MR. ETTINGER: But in this case is
22
there any reason to believe that there will
23
be a biological impact from using the
24
Metropolitan Water Reclamation District's
L.A. REPORTING (312) 419-9292
257
1
discharge temperature as the background
2
temperature for the month that it's used?
3
MS. WILLHITE: I'll bump that to
4
another member of the team here.
5
MR. TWAIT: I can tell you what the
6
difference is in the background temperature.
7
MR. ETTINGER: I'm not asking about
8
the differences in the temperature. I'm
9
asking about the potential for effecting the
10
chemical or --
11
MR. TWAIT: I don't know the answer to
12
that.
13
MR. ETTINGER: -- the biological
14
integrity of the water by using the MWRD
15
discharge temperature in the Sanitary and
16
Ship Canal as opposed to what the Yoder
17
calculation would have been?
18
MR. TWAIT: The Agency does not know
19
whether there would be one or not. But if we
20
did know that there would be a difference,
21
then we would not have proposed it.
22
MR. ETTINGER: Thank you.
23
MS. FRANZETTI: Because the goal of
24
the proposed thermal water quality standards
L.A. REPORTING (312) 419-9292
258
1
is supposed to be to protect the aquatic
2
community that is there or is capable of
3
being there, correct?
4
MR. TWAIT: Yes.
5
MS. FRANZETTI: And so we don't know
6
if by using the district's effluent thermal
7
temperatures whether or not we're doing that;
8
is that -- that's what I think I understand
9
you to say?
10
MR. TWAIT: I think that's a fair
11
characterization.
12
MS. FRANZETTI: Moving to question
13
seven. On Page 83 of the Statement of
14
Reasons and at Page 14 of the Twait pre-filed
15
testimony it is stated that the Agency,
16
quote, used the 75th percentile as the
17
monthly average to ensure that the seasonal
18
norms are preserved in the system.
19
Explain -- I think you've done
20
some of this, but I think we want to get into
21
the issue of why the 75th percentile as the
22
monthly average ensures that the seasonal
23
norms are preserved.
24
MR. TWAIT: If you were to look at it
L.A. REPORTING (312) 419-9292
259
1
year by year to keep the seasonal norms,
2
you'd be looking at a 50th percentile, that
3
would give you exactly half. Half of the
4
data would be above that point and half the
5
data would be below that point.
6
So if we were to know in advance
7
what each year was, we could set it at the
8
50th percentile and that would be exactly the
9
temperature that the average would come out
10
to be. We chose the 75th percentile because
11
there's variation from year to year. I
12
noticed -- well, I'll stop there.
13
MS. FRANZETTI: Don't be volunteering
14
anything. Before I go further, just so we
15
have it in the record, what do we mean by the
16
75th percentile as used here?
17
MR. TWAIT: It is the number where
18
75 percent of the data points would fall
19
below that number and 25 percent would be
20
above that number.
21
MS. FRANZETTI: In a given year? I
22
mean, did you take a -- choose a year of the
23
district's data or was that over a longer
24
period?
L.A. REPORTING (312) 419-9292
260
1
MR. TWAIT: It was over a longer
2
period. And we asked the district to provide
3
the same data set that Chris Yoder used and
4
that was the data collected from 1998 to
5
2004.
6
MS. FRANZETTI: Okay. So it's the
7
75th percentile across all those
8
approximately six years of data?
9
MR. TWAIT: Yes.
10
MS. FRANZETTI: Okay.
11
MR. SAFLEY: May I follow up?
12
HEARING OFFICER TIPSORD: Mr. Twait,
13
keeping in mind that there can be yearly
14
variations, would that mean that 25 percent
15
of the time one would expect that the
16
temperatures downstream of the MWRD
17
facilities are going to be higher than the
18
standards you're proposing?
19
MR. TWAIT: No.
20
MR. SAFLEY: And explain to me why
21
that's not the case.
22
MR. TWAIT: We took the
23
75th percentile of all the data and we're
24
using that as a period average. So
L.A. REPORTING (312) 419-9292
261
1
25 percent of the values will be above the
2
water quality standard -- or 25 percent of
3
the values will theoretically be above the
4
standard and 75 percent will be below. And
5
so when you take an average, it may not
6
necessarily result in a violation.
7
MR. SAFLEY: Okay. And I have two
8
follow-up questions after that. When you say
9
25 percent will be above the standard, you
10
mean the period average standard or you mean
11
the maximum standard, the same all year?
12
MR. TWAIT: The way the
13
75th percentile works is 25 percent of the
14
individual values were above what we've
15
chosen as a numeric value for our period
16
average.
17
MR. SAFLEY: For the period average.
18
So 25 percent were not above the maximum
19
temperature number?
20
MR. TWAIT: Correct.
21
MR. SAFLEY: Okay. So if I'm looking
22
at Chicago Area Waterway System, you know,
23
Brandon Pool Aquatic Life Use B Water
24
January 1 through 31, the period average is
L.A. REPORTING (312) 419-9292
262
1
54.3 degrees; what you're saying is the data
2
that you looked at, you looked at each
3
January for six years --
4
MR. TWAIT: It's actually seven years,
5
but, yes.
6
MR. SAFLEY: All right. Each January
7
for seven years and 25 percent of the time
8
the numbers were above that 54.3 degrees.
9
MR. TWAIT: Twenty-five percent of the
10
individual numbers were above that, yes.
11
MR. SAFLEY: Okay. Did the Agency
12
undertake any kind of analysis to run the
13
average numbers to find out how the averages
14
would play out and whether that
15
25 percent/75 percent split would result in
16
average numbers that were below this for the
17
period average?
18
MR. TWAIT: In Chris Yoder's report,
19
Exhibit 15, Appendix Table 2, he lists lots
20
of statistical values. He's got the month,
21
the period, the number of samples, the mean
22
of all those samples, a geometric mean of all
23
those samples, a median of those samples, a
24
single maximum occurrence, a maximum
L.A. REPORTING (312) 419-9292
263
1
occurrence that occurred twice, a maximum
2
occurrence that occurred three times. Then
3
he's got several different percentiles; the
4
98th, 95th, 90th, 75th percentile and 5th
5
percentile and then he's got some other
6
nonparametric values.
7
MR. SAFLEY: So if I wanted to try to
8
determine based on the data whether or not on
9
a period average basis the water -- the
10
effluent downstream of the MWRD facilities
11
would be above or below the period average, I
12
could at least, to some extent, get that out
13
of that Yoder Appendix Table 2?
14
MR. TWAIT: You could make the
15
comparison of the mean against the 75th -- or
16
against the proposal. That, of course,
17
doesn't tell you what happened each
18
individual year.
19
MR. SAFLEY: Okay. So the numbers --
20
and I found this appendix. These numbers --
21
the mean is for all seven years?
22
MR. TWAIT: Yes.
23
MR. SAFLEY: Okay. So I can certainly
24
say on an average basis over a seven-year
L.A. REPORTING (312) 419-9292
264
1
period, and I'm looking right now at the
2
entire month of January, it's a number of
3
49.6. And I don't know where this collection
4
point was, but that that is below the 54.3 in
5
the rule so just looking at that I would say
6
averaging over seven years it doesn't look
7
like for January the monthly average would be
8
above the standard that's proposed; is that
9
the right way to do that?
10
MR. TWAIT: Yes. With that limited
11
data set, yes.
12
MR. SAFLEY: Okay.
13
MR. TWAIT: Like I said, it doesn't
14
have -- the individual average could be
15
higher one year and lower the next year.
16
And, actually, it will be higher one year and
17
then lower the next year.
18
MR. SAFLEY: And are those individual
19
data sets by year in the Agency's submission
20
to the Board?
21
MR. TWAIT: I do not believe so.
22
MR. SAFLEY: Okay. My guess is
23
someone is going to say they're available on
24
MWRD's website, but...
L.A. REPORTING (312) 419-9292
265
1
MR. TWAIT: The data was from MWRD. I
2
don't know if it's on their website or not.
3
MR. SAFLEY: Is that something that we
4
could get in the record if that's what's
5
making up the numbers on this table?
6
MS. WILLIAMS: Yes. I mean, if it's
7
not in the record, we can put it in the
8
record.
9
MR. SAFLEY: And if it is in the
10
record, I realize that the record is so big
11
in this and it may be that I just don't
12
realize it.
13
MR. TWAIT: If I have the data, we'll
14
put it in the record. But if I don't have
15
the data, then we'll have to ask MWRD for the
16
data or at least a cite to their website.
17
MR. SAFLEY: And, clearly, Chris Yoder
18
had the data at some point; is that correct?
19
MR. TWAIT: Yes.
20
MR. SAFLEY: And the Agency provided
21
that data to him; is that correct?
22
MR. TWAIT: I believe that he went
23
right to the district for it.
24
MR. SAFLEY: Okay.
L.A. REPORTING (312) 419-9292
266
1
HEARING OFFICER TIPSORD: Attachment W
2
maybe, 2001-2006 effluent sampling result for
3
temperature at Water Reclamation District
4
plants?
5
MR. TWAIT: No. Well, that would have
6
just been the effluent data that we used for
7
setting background, not the actual sampling
8
sites.
9
If I do have that data, it will be
10
in a large database. And I think I have it
11
on a CD. What would be the best way to
12
provide that if I have it?
13
HEARING OFFICER TIPSORD: If you have
14
it, you can certainly provide it to the Board
15
on a CD. Does anyone object to receiving
16
that on a CD? And I'm assuming most of the
17
people here are on the service list so a CD
18
is fine.
19
MR. SAFLEY: Does the Agency have any
20
information right now on the statistical
21
likelihood that if you looked at an
22
individual year in a month or two-week time
23
period that there would be on an average
24
basis a violation of the Agency's proposed
L.A. REPORTING (312) 419-9292
267
1
standard?
2
MR. TWAIT: No. I don't believe we
3
made that analysis.
4
MR. SAFLEY: Okay. Does the Agency
5
consider there to be a statistical
6
probability that there would be a violation
7
in one of those time periods?
8
MR. TWAIT: For the particular -- no,
9
I don't.
10
MR. SAFLEY: Okay. Looking at this
11
Appendix Table 2, each month is broken up
12
into entire, early and late. Are you
13
aware -- is early always the first half of
14
the days of the month and late always the
15
second half of the days of the month? Would
16
that correspond with, for example, April 1
17
through 15 and 16 through 30 or do we know?
18
MW. TWAIT: I believe that Chris used
19
the same format for, like, the 1st through
20
the 15th and then the 16th through the end of
21
the month.
22
MR. SAFLEY: Okay.
23
HEARING OFFICER TIPSORD: And just to
24
be clear, Appendix Table 2 of Exhibit 15?
L.A. REPORTING (312) 419-9292
268
1
MR. TWAIT: Yes.
2
MR. SAFLEY: Those are all my
3
questions right now. Thank you.
4
MS. FRANZETTI: And I just have one
5
more question on it. I'm not understanding,
6
given the testimony we've had this afternoon
7
about the fact from the Agency's perspective
8
it's an effluent dominated stream so it's
9
reasonable to use the effluent of the
10
district as the background, why not use
11
100th percentile? Why are we doing
12
75 percent?
13
MR. TWAIT: The reason that we did not
14
use the 100th percentile is -- well, if we
15
had used the 100th percentile, that would be
16
the highest temperature ever measured in that
17
time period and then we would turn around and
18
set that as the average and we did not think
19
that was appropriate.
20
MS. FRANZETTI: Okay. But in using
21
the 75th, we could have issues of
22
noncompliance by the district's own effluent
23
on which the standard is based?
24
MR. TWAIT: Anything is possible.
L.A. REPORTING (312) 419-9292
269
1
MS. FRANZETTI: But statistically
2
isn't that --
3
MR. TWAIT: Statistically, if we were
4
looking at one year only and we chose the
5
75th percentile, then there would be no
6
chance of violating that number as a period
7
average.
8
But because we are looking at
9
eight years and taking the 75th percentile,
10
there could be a year that has high
11
temperatures.
12
MS. FRANZETTI: Okay.
13
MR. ETTINGER: Realistically, the
14
Metropolitan Water Reclamation District's
15
dischargers don't vary from all that much
16
from year to year, do they?
17
MR. TWAIT: I don't know how much they
18
vary from year to year. The data is included
19
as Attachment W.
20
MS. FRANZETTI: I just submit it
21
sounds like they do a bit since you didn't
22
want to use the 100th percentile because it
23
was too high.
24
MR. TWAIT: Well, using the
L.A. REPORTING (312) 419-9292
270
1
100th percentile value would -- if we went
2
out to the stream and found out that the
3
stream had gotten to say 88 degrees and that
4
was the highest that we had measured, that
5
would be the 100th percentile.
6
MS. FRANZETTI: In that year?
7
MR. TWAIT: And then we would take
8
that 88 degrees and say that's what the
9
period average has to be.
10
MS. FRANZETTI: When you take the
11
100 -- I guess you're saying one year.
12
Wouldn't you be looking over six or seven
13
years?
14
MR. TWAIT: If we took the data from
15
the seven years and had taken the
16
100th percentile, basically the
17
100th percentile is the highest value
18
recorded.
19
MS. FRANZETTI: Ever in the
20
seven years.
21
MR. TWAIT: Even in the seven years.
22
That's the highest value. That would be the
23
100th percentile.
24
MS. FRANZETTI: Okay. I think I was
L.A. REPORTING (312) 419-9292
271
1
misunderstanding. I thought you would take
2
the highest in each January and average them?
3
MR. TWAIT: Okay.
4
MS. FRANZETTI: No?
5
MR. TWAIT: Yes. If we took the
6
highest -- if we took the 100th percentile of
7
the January 1st through 31st data, first
8
through 31st, if we had taken that data and
9
the highest value was say 60 degrees, then we
10
would turn around and say that's the period
11
average that you have to meet.
12
And so then you could discharge
13
say -- or then to get that period average,
14
you could go as high as 70 degrees just as
15
long as you got it down to 50 degrees. And
16
that would be an increase in the background
17
temperature.
18
MS. FRANZETTI: Okay.
19
MR. TWAIT: We didn't feel that the
20
average should be set at the highest measured
21
temperature.
22
MS. FRANZETTI: And really then the
23
daily max temperature for January just
24
doesn't -- it's not at all connected to the
L.A. REPORTING (312) 419-9292
272
1
period average value, correct?
2
MR. TWAIT: Say that again, please?
3
MS. FRANZETTI: Well the -- the daily
4
maximum value, which is just the summer daily
5
max I thought carried across the whole year?
6
MR. TWAIT: Yes.
7
MS. FRANZETTI: It doesn't have any
8
relationship, it's not in any way based on
9
that period average?
10
MR. TWAIT: No.
11
MS. FRANZETTI: Okay. Question number
12
eight, were either the concepts of the use of
13
the Route 83 Chicago Sanitary and Ship Canal
14
sampling station or the use of the
15
75th percentile as the monthly average
16
presented and discussed within the various
17
UAA stakeholder group meetings?
18
MR. TWAIT: Only at the March 2007.
19
MS. FRANZETTI: That was the public
20
meeting, right?
21
MR. TWAIT: That was the public
22
meeting.
23
MS. FRANZETTI: Moving on to question
24
nine, has the Illinois EPA reviewed the
L.A. REPORTING (312) 419-9292
273
1
ambient water temperatures for the past few
2
years to determine what the ambient water
3
temperatures typically are in comparison to
4
the proposed thermal standards for those
5
dischargers who are located downstream of the
6
district's plants?
7
MS. WILLIAMS: Can you clarify what
8
you mean by "what the ambient"?
9
MS. FRANZETTI: What's the temperature
10
level that dischargers are going to be taking
11
in from the stream that is basically
12
dominated by the district's effluent? In
13
other words, that's setting the thermal level
14
in the stream for the downstream discharger?
15
You know, what do they start with
16
so to speak as the temperature of the intake
17
water versus what the proposed standard is?
18
Is it already higher so that they're actually
19
going to have to cool it before they add any
20
thermal inputs to it because it's above the
21
standards?
22
And I don't know the answer to
23
that. I don't know if the Agency has looked
24
at that.
L.A. REPORTING (312) 419-9292
274
1
MR. TWAIT: The station at Route 83
2
bridge is downstream of the Stickney
3
facility, which is also downstream of the
4
Fisk and Crawford facilities. It's
5
approximately 10 miles downstream of the
6
Stickney facility. Since we are proposing to
7
use a 75th percentile as a period average, we
8
believe there's some cushion there.
9
MS. FRANZETTI: I'm not sure I
10
followed that answer. I'm sorry. Actually,
11
my question isn't limited to the period
12
average. Scott, can you try and explain to
13
me what you just said? There's a sampling
14
station ten miles -- about ten miles
15
downstream from Stickney?
16
MR. TWAIT: Our background station
17
that we used for our background is from the
18
Route 83 bridge on the Chicago Sanitary and
19
Ship Canal. That bridge or that sampling
20
location is approximately ten miles
21
downstream from Stickney facility.
22
MS. FRANZETTI: Okay. But that is
23
that station wasn't what you for the most
24
part used to set the period average, I
L.A. REPORTING (312) 419-9292
275
1
thought? See, I'm not sure what you're
2
telling me.
3
MR. TWAIT: Yes. That's what we
4
used to -- that was the ambient station that
5
we had used in addition to the Stickney's --
6
or the district's effluent.
7
MS. FRANZETTI: But when the
8
district's effluent was --
9
MR. TWAIT: Could you ask your
10
question again, please?
11
HEARING OFFICER TIPSORD: If I may, I
12
think what he's answering is -- let me try
13
this. Mr. Twait, the Agency's background
14
level, the place you took the sampling to
15
develop the background level is downstream of
16
the district's discharge by ten miles,
17
correct?
18
MR. TWAIT: Correct.
19
HEARING OFFICER TIPSORD: So you do
20
have downstream data that is not just the
21
effluent of the district, correct?
22
MR. TWAIT: Correct.
23
MS. FRANZETTI: And that downstream
24
data is showing compliance with your proposed
L.A. REPORTING (312) 419-9292
276
1
standards?
2
MR. TWAIT: At that location because
3
we are using it as our background, yes.
4
MS. FRANZETTI: I see. I guess I
5
thought for the most part you were using the
6
district's thermal levels as the background
7
unless --
8
MR. TWAIT: We are using the
9
district's temperature -- we are using the
10
least stringent of the district's temperature
11
for this ambient station that's downstream of
12
the district.
13
MS. FRANZETTI: So for the most part,
14
the ambient station is cooler.
15
MR. TWAIT: In some periods of time
16
during the winter, the -- let me look at the
17
month specifically.
18
Of the periods of January,
19
February, October 1st through 15, November
20
and December the stream is cooler than the
21
district's effluent.
22
MS. FRANZETTI: Okay. That's what I
23
finally realized that's what you're saying.
24
MR. TWAIT: Yes.
L.A. REPORTING (312) 419-9292
277
1
MS. FRANZETTI: And that the other
2
times it's not?
3
MR. TWAIT: Correct.
4
MS. FRANZETTI: And so for a
5
downstream discharger, they could be using
6
water that is already above the water quality
7
standards?
8
MR. TWAIT: It depends on how far
9
downstream that you're talking about and
10
whether there are sources in between there.
11
MS. FRANZETTI: Fair enough.
12
MR. TWAIT: Because we've chosen the
13
75th percentile as the period average, --
14
that's creating some leeway in the proposal.
15
MS. FRANZETTI: I'm jumping down to
16
ten. Question ten, when the ambient
17
temperature of the waterway is at or near the
18
thermal quality standard, does this indicate
19
that the downstream dischargers will likely
20
need to cool the water withdrawn from the
21
waterway before discharging it back to the
22
waterway after any industrial use?
23
MR. TWAIT: If the water were warmer
24
than the water quality standard and they were
L.A. REPORTING (312) 419-9292
278
1
adding heat to it, they would need to provide
2
cooling.
3
HEARING OFFICER TIPSORD: What if
4
they're not adding heat?
5
MS. FRANZETTI: Yeah, what if they're
6
not adding heat because I'm not sure any of
7
us focused on that.
8
MR. TWAIT: I believe that there are
9
some NPDS, national pollutant discharge
10
elimination system rules about taking water
11
from the same source as you're discharging to
12
and as long as you're not increasing the
13
parameter that you're concerned with, it
14
doesn't put it back into your permit. So
15
if --
16
MS. FRANZETTI: If the discharger can
17
make that showing that they've added no heat
18
to the water, you think there is provisions
19
of the NPDS regulations that would give them
20
basically a pass?
21
MR. TWAIT: I believe so.
22
MS. FRANZETTI: Would you agree --
23
actually, a follow-up. Would you agree that
24
it's generally true in the Chicago Sanitary
L.A. REPORTING (312) 419-9292
279
1
and Ship Canal and down to the Upper Dresden
2
Pool that the water will tend to warm as it
3
moves downstream regardless of any heat input
4
from dischargers?
5
MR. TWAIT: I don't know that I know
6
the answer to that.
7
MR. SULSKI: I wouldn't agree with
8
that. It would depend on the time of the
9
year, you know, if it's summer all the sudden
10
you get a warm spell, it's possible. But I
11
wouldn't agree with that in general, no.
12
MS. FRANZETTI: Okay. But in summer
13
that can happen?
14
MR. SULSKI: I wouldn't know either
15
because it's a narrow system, there's a
16
limited surface area for heat transfer.
17
MS. FRANZETTI: Just don't know?
18
MR. SULSKI: I just don't know.
19
MS. FRANZETTI: Okay. Question number
20
11, impervious surfaces, e.g., streets,
21
parking lots, rooftops greatly increase the
22
temperature of surface water runoff during
23
summer periods. Is this contribution being
24
considered as part of, quote, unquote,
L.A. REPORTING (312) 419-9292
280
1
background?
2
MS. WILLIAMS: Is there a citation or
3
anything to that?
4
MS. FRANZETTI: No. But we'll back it
5
up with expert testimony on that.
6
MR. SULSKI: I'd like to respond to
7
it. This is the first I've ever heard of it
8
or experienced it. Generally, it's the
9
opposite, the rain cools those surfaces by
10
the time it hits the waterway, it's cooling
11
the waterway.
12
MS. FRANZETTI: Okay.
13
MR. SULSKI: The rain is cold.
14
MS. FRANZETTI: These surfaces are
15
very hot. That the rain comes in contact
16
with before it runs off into the river, just
17
so you understand what the question is
18
saying.
19
MR. SULSKI: I understand the
20
question. In my experience -- we're talking
21
about perhaps separate sewer areas. Even in
22
separate sewer areas the rain cools the
23
surfaces quite rapidly and ends up
24
discharging at a cooler temperature in the
L.A. REPORTING (312) 419-9292
281
1
warmer periods of the year. In a combined
2
sewer area, it hits the sewer so it really
3
has no bearing.
4
MS. FRANZETTI: Okay. Moving on to D.
5
MR. TWAIT: I'd like to provide an
6
answer, also. We have taken into account
7
only to the effect that it would have an
8
effect on the sampling station that we used.
9
So, I mean, if you're saying that
10
it's warming up the water during the
11
summer -- during the non-summer periods and
12
it affects the Route 83 bridge that we've
13
chosen as our sampling station, then it has
14
been taken into account because we're using
15
that station as a background.
16
MS. FRANZETTI: Okay. Moving on to D.
17
HEARING OFFICER TIPSORD: Let's call
18
it a day. The next question is multi-point
19
so let's go ahead and go off the record.
20
(Which were all the
21
proceedings had in the
22
above-entitled cause
23
on this date.)
24
L.A. REPORTING (312) 419-9292
282
1 STATE OF ILLINOIS )
) SS.
2 COUNTY OF WILL )
3
4
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.
10
11
______________________________
TAMARA MANGANIELLO, RPR
12
License No. 084-004560
13
14
15
16
SUBSCRIBED AND SWORN TO
17 before me this ____ day
of _______, A.D., 2008.
18
19
_______________________
20 Notary Public
21
22
23
24
L.A. REPORTING (312) 419-9292