BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

3 IN THE MATTER OF:

5 WATER QUALITY STANDARDS AND)

6 EFFLUENT LIMITATIONS FOR )

7 THE CHICAGO AREA WATERWAY )

8 SYSTEM AND THE LOWER

)

9 DES PLAINES RIVER:

) No. R08-9

10 PROPOSED AMENDMENTS TO )

11 35 Ill. Adm. Code Parts )

12 301, 302, 303 and 304

)

REPORT OF PROCEEDINGS had before the

16 ILLINOIS POLLUTION CONTROL BOARD held on March 12,

17 2008, at 9:00 o'clock a.m. at the 1215 Houbolt Road,

18 Room- T-1000, Joliet, Illinois.

1 A P P E A R A N C E S:

2 ILLINOIS POLLUTION CONTROL BOARD:

3 MS. MARIE TIPSORD, Hearing Officer

MR. TANNER GIRARD, Member

4 MR. ANAD RAO, Senior Environmental Scientist

MR. THOMAS JOHNSON, Member

6 ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

7 Ms. Stefanie Diers

Ms. Deborah Williams

8 Mr. Robert Sulski

Mr. Scott Twait

9 Mr. Roy Smogor

Mr. Howard Essign

10 Ms. Marcia White

11 ENVIRONMENTAL LAW AND POLICY CENTER

33 East Wacker Drive

12 Suite 1300

Chicago, Illinois 60601

13 (312) 795-3707

BY: MR. ALBERT ETTINGER

Appeared on behalf of ELPC, Prairie Rivers

Network and Sierra Club;

16 FRANZETTI LAW FIRM P.C.

10 South LaSalle Street

17 Suite 3600

Chicago, Illinois 60603

18 (312) 251-5590

BY: MS. SUSAN FRANZETTI

Appeared on behalf of Midwest Generation;

HODGE DWYER AND ZEMAN

21 3150 Roland Avenue

P.O. Box 5776

22 Springfield, Illinois 62705

(217) 523-4900

23 BY: MR. THOMAS SAFLEY

Appeared on behalf of Exxon Mobil, and the

1 APPEARANCE (CONTINUED):

3 THE CHICAGO LEGAL CLINIC

2938 East 91st Street

4 Chicago, Illinois 60617

(773) 731-1762

5 BY: MR. KEITH HARLEY

Appeared on behalf of the Southeast

Environmental Task Force;

8 MAYER BROWN, LLP

71 South Wacker Drive

9 Chicago, Illinois 60606

(312) 782-0600

10 BY: MR. THOMAS DIMOND

Appeared on behalf of Stepan & Company.

CHAIRMAN TIPSORD: Again, my name is

Marie Tipsord. This is day three of R08-9.

With me today to my immediate right is

Dr. Tanner Girard, presiding board member, to

my immediate left board member Thomas Johnson

and to Dr. Girard's right is Anand Rao from

our technical unit. This, again, is our

third day, and if there's nothing else right

now, I think we are ready to start with

Midwest Generation's questions.

Ms. Franzetti?

MS. FRANZETTI: Thank you, Madam

Hearing Officer.

Good morning. We left off with

subsection D of my pre-filed questions

entitled, Proposed "Period Average" and

"Daily Maximum" Elements of the Proposed

Thermal Standards. And question one under

that, on page 83 of the statement of reasons

and page 14 of the Twait pre-filed testimony

the Illinois EPA states, "The daily maximum

of the summer months is preserved for the

entire year to ensure that no acute lethal

temperatures are present, rather than using

the 98 percentile ambient temperature values

for the nonsummer months or some other

statistical method as suggested by Chris

Yoder." The question is, is the Illinois EPA

saying that Yoder's recommended methods would

not have insured that no lethal temperatures

are present in the waterways? And if so,

explain the basis for this conclusion.

MR. TWAIT: No, the Agency is not

saying that Chris Yoder's methodology would

have allowed lethal temperatures. The MBI

methodology is more restrictive than the

Agency's proposal. MBI's methodology used

the 98 percentile of ambient data percent of

daily maximum. By using the 98 percentile

like he suggested, would automatically have a

two percent exceedance in the values.

MS. FRANZETTI: Like you explained

yesterday?

MR. TWAIT: Yes.

MS. FRANZETTI: (B)If the Agency had

followed Yoder's recommendation of using the

98 percentile of ambient temperature values

for the nonsummer months, would it have

resulted in requiring the MWRGDC to cool its

effluent?

MR. TWAIT: No, the Agency made the

decision to use the MWRDGC as background.

This decision would have been for the period

average, as well as for the daily maximum.

We just did not feel comfortable with the two

percent exceedance at our background

stations.

MS. FRANZETTI: Moving on to question

1C, How does a daily maximum standard derived

for the summer months, ensure that no acute

lethal temperatures are present during the

winter months?

MR. TWAIT: The Agency believes that

the period average will protect the fish and

their spawning ability. However, the Agency

didn't want to completely abandon the daily

maximum, so it kept the summer daily maximum

throughout the year.

MS. FRANZETTI: Scott, can you

elaborate on why the Agency was reluctant as

you say to abandon as you say the winter

daily max?

MR. TWAIT: Well, we just didn't want

to write the rule in such a way that it looks

that if the temperature in a receiving stream

could go up to 150 degrees and still meet the

average somehow. I don't think that could

possibly happen, but we just wanted to

eliminate the concerns that people would have

if we didn't have a daily maximum.

MS. FRANZETTI: Actually based on that

answer, is the period average during the

winter months really going to drive the

dischargers compliance efforts?

MR. TWAIT: I believe it will.

MS. FRANZETTI: Is that in part

because there is a significant difference

between the period average value and the

daily max value, correct?

MR. TWAIT: Yes.

MS. FRANZETTI: Moving on to question

2. Why is it necessary to have period

averages -- did I just ask that question?

MR. TWAIT: You just asked C.

MS. FRANZETTI: Sorry, this doesn't

bode well for the day. It's only the first

fifteen minutes.

Why is it necessary to have period

averages during the nonsummer months when the

summer daily maximum temperature is to be

maintained in the winter months as well?

MR. TWAIT: The Agency has relaxed the

nonsummer maximum daily temperatures for the

previous stated reasons, and the Agency

believes that the nonsummer period average

will accomplish the desired effect of

maintaining season norms.

MS. FRANZETTI: So once again, it

really all comes down to this perceived need

to maintain seasonal norms?

MR. TWAIT: Yes.

MS. FRANZETTI: Moving onto question

13 at page 14 of the Twait pre-filed

testimony it is stated that, "The chronic or

sublethal impacts are protected through the

period average." Identify the chronic

impacts data upon which the period average

limits for the nonsummer months are based?

MR. TWAIT: That can be found on page

15 of the MBI report, which is Exhibit 15,

and it would be gametogenesis and growth.

MS. FRANZETTI: Mr. Twait, are you

referring to the paragraph that's captioned

"Seasonal Temperature Criteria" on page 15 of

Exhibit 15?

MR. TWAIT: Yes.

MS. FRANZETTI: And specifically the

part that reads, "Nonsummer season criteria

are derived to maintain seasonal norms and

cycles of increasing and decreasing

temperatures. Important physiological

functions such gametogenesis, spawning and

growth should be assured, since these are

products of each species long-term adaptation

to natural climatic and regional influences

of which temperature is one controlling

factor." Did I cover the relevant part?

MR. TWAIT: Yes.

MS. FRANZETTI: I understand that that

is generally explaining what the thinking is

behind this perceived need for the nonsummer

period average limits, but with respect to

the particular resident species on which

these thermal or proposed thermal standards

have been based, is there any chronic data

from testing, studying them indicating that

the period average temperature values that

have been proposed are what is necessary to

achieve these purposes that are described in

that paragraph in Exhibit 15?

MR. TWAIT: The Agency did not look at

any such data. We're relying on Chris

Yoder's expertise.

MS. FRANZETTI: Here is the thing

though is, you actually didn't follow

Mr. Yoder's recommended approach for

addressing these types of issues. The agency

used a different approach. So in that

regard, there seems to be a bit of a

disconnect.

MR. TWAIT: I think I understand the

question. The Agency in some respects

followed Chris Yoder's methodology and his

document, his temperature criteria options,

and we chose some less stringent options

along the way.

MS. FRANZETTI: Do you know whether

there are any CAWS fish that spawn in the

fall or winter?

MR. TWAIT: Can you answer that?

MR. SMOGOR: Fall or winter, not that

I can think of.

MS. FRANZETTI: Do you know whether

growth takes place during the winter months?

MR. SMOGOR: Some growth takes place.

MS. FRANZETTI: Of any significance?

MR. SMOGOR: I don't know what that

means, "significant." When temperatures get

colder, fish growth slows down.

CHAIRMAN TIPSORD: Mr. Safley, did you

have a follow-up?

MR. SAFLEY: Before we leave that

paragraph -- Tom Safley on behalf of Corn

Products.

Mr. Twait, we discussed yesterday

the reasons for the Agency wanting to

maintain seasonal norms, and my recollection

of the testimony yesterday was that the sole

concern with seasonal norms as far as the

Agency knew was gametogenesis. However, when

I read this paragraph that Ms. Franzetti has

pointed you to talking about seasonal

temperature criteria, the last full sentence

on page 15 reads, "Important physiological

functions such as gametogenesis, spawning and

growth should be assured since these are

products of each species' long-term

adaptation to natural climatic and regional

influences of which temperature is one

controlling factor." I read that as saying

that one of the reasons for seasonal norms is

to, in Mr. Yoder's view at least, to take

into account needs of spawning and growth,

which seems to me to be different than the

testimony we had yesterday, that the Agency's

understanding the only reason for seasonal

norms was gametogenesis. So I want to make

sure I know what the answer is because I'm

reading Mr. Yoder saying one thing and the

testimony yesterday saying something else.

MR. TWAIT: I think we mentioned

reproduction yesterday which would include

spawning; however, the spawning for the CAWS

use B waters, we don't think we're going --

we're not protecting it for the CAWS B

waters. We're protecting it so they can

leave those waters and spawn, and if I didn't

mention growth yesterday, which I don't think

that I did, I probably should have.

MR. SAFLEY: And then just to wrap

that up then, with regard to the Caws B

Waters where the Agency does not think it's

appropriate to protect for early life stages

or spawning, am I correct the only reason the

Agency might want to take into account

seasonal changes in the Use B Waters is for

gametogenesis, and spawning at least for Use

B waters for spawning and growth purposes,

seasonal changes are irrelevant, or at least

growth in early life stages?

MR. TWAIT: After reading the

sentence, I think it's gametogenesis and

growth that we're protecting by using the

seasonal norms.

MR. SAFLEY: I'm sorry, specifically

to the Use B Waters?

MR. TWAIT: Yes.

MR. SAFLEY: But the Agency is not

trying to protect spawning in the Use B

Waters?

MR. TWAIT: We are not protecting

early life stages, and that would include

spawning.

MR. SAFLEY: And that would include

spawning and growth during early life stages?

MR. TWAIT: Correct.

CHAIRMAN TIPSORD: Mr. Fort?

MR. FORT: Yes, Jeff Fort on behalf of

Citgo.

So with respect to the questions

that Mr. Safley just asked you about Use B

Waters, the same would be true even for the

subset of the Use B Waters such as the lower

Chicago Sanitary and Ship Canal?

MR. TWAIT: The Use B Waters, it would

be all of the Use B Waters. Yes, it would be

for all the Use B Waters.

MR. FORT: Not making any distinction

amongst them as to habitat?

MR. SULSKI: That's how they were

classified.

MR. FORT: I think that the underlying

data that you have has differences saying

different things that you put into the Use B

Water category, such as the lower north

branch and the north branch turning basin of

the Chicago River and so on down to the lower

Des Plaines Brandon pool.

MS. WILLIAMS: Was there a question?

Can you repeat the question or was there a

question? Maybe there wasn't a question.

MR. FORT: I'm asking if there's

differences in the habitat? I believe the

testimony --

MS. WILLIAMS: Within the Use B

Waters?

MR. FORT: Within the Use B Waters.

MR. SMOGOR: Well, there's probably

some differences, but as a whole we're

treating the Use B Waters as one group in

terms of proposing uses, the aquatic life use

for those waters. So as a whole, the habitat

in Use B Waters is considered different

enough from that of Use A Waters to treat it

and give it a different proposed use.

MR. FORT: Within that broader general

category, although there are differences

within the Use B Waters themselves?

MR. SMOGOR: There may be habitat

differences from place to place within Use B

Waters, but as a whole we're judging it as

the biological potential of Use B Water as a

whole is lower than the biological potential

of the Use A Waters.

MR. FORT: You are not making any

further distinction below Use B in terms of

aquatic potential.

CHAIRMAN TIPSORD: Mr. Ettinger?

MR. ETTINGER: I'm Albert Ettinger. I

represent Environmental Law and Policy

Center, Prairie Rivers Network and some other

environmental organizations.

My question was, do you know whether

any spawning is in fact now occurring in the

waters that are to be classified as B waters

under this proposal?

MR. SMOGOR: I think there may be

because once again inferred from sizes of

fish from the MWRD data that was, that we

attempted to add to the record, but that we

still have to supplement with pieces -- I'm

trying to recall what Exhibit that was. That

was Exhibit 28 I believe -- and based on

looking at fish sizes, one can infer that

some spawning may be taking place in those

waters.

CHAIRMAN TIPSORD: Then I think we are

back to Ms. Franzetti.

MS. FRANZETTI: But if I understand

correctly, that's based solely on observed

size of the fish?

MR. SMOGOR: Can you excuse me for a

second, please.

MS. FRANZETTI: Absolutely.

MR. SMOGOR: Sorry, thank you.

MS. FRANZETTI: That inference that

there may be spawning in some parts of the

Use B Waters that you just mentioned, is

based solely on the observed size of the

fish?

MR. SMOGOR: I have not done a

complete examination of that data. A very

cursory look at those data and some of the

sizes that are available for the species, a

quick look as I recall, looked like some of

the tolerant -- and pretty much right now

there is a tolerant species living in

there -- it looked like some of the species

based on the sizes only of some of some

individuals reported that one would infer

that they are being created in those waters

and they are not -- they are subadult sizes.

MS. FRANZETTI: Is it also a possible

inference from that data that they were

created outside of Use B Waters and have

migrated into it?

MR. SMOGOR: Yes.

MS. FRANZETTI: So you really can't

discern?

MR. SMOGOR: That's possible, no, I

really can't discern for sure.

MS. FRANZETTI: Staying with the issue

of growth. Would growth during the winter

months be higher if you had warmer water

temperatures, if that were allowed?

MR. SMOGOR: Because you weren't

looking at me, I was off in la-la land.

Could you repeat the question, please.

MS. FRANZETTI: Sure. Would growth

during the winter months be higher if higher

winter water temperatures were allowed?

MR. SMOGOR: It's possible. Growth of

a fish is not solely based on temperature.

It is a function of temperature. So all the

other needs of the fish would have to be met

as well.

MS. WILLIAMS: May I ask a follow-up

here real quick, not necessarily on that

question, but maybe on Mr. Ettinger's

question while I'm thinking about it. I

guess I'm even confused now at this point if

there is some spawning that occurs in the Use

B Waters. Can you explain then what sets

them apart from the Use A Waters, as far as

the existing aquatic life situation?

MR. SMOGOR: Well, biological

potential is not solely based on particular

species' ability to spawn, and spawning can

occur in different degrees as well. Just

because you have evidence or potential

evidence of spawning, doesn't necessarily

mean that the fish is spawning, doing as well

as it can do. Does that get it.

MS. WILLIAMS: I don't know. Is there

any difference in the types of fish that you

found that you think may be spawning?

MR. SMOGOR: Yes, I think again a

cursory look, it appears that some of the

tolerant species, the tolerant species that

are in there are the ones that I noted had

subadult individuals reported.

MR. SAFLEY: Again, Tom Safley. If I

could follow-up on that.

Despite your observations,

however, is it correct that at least for the

Chicago Sanitary and Ship Canal, the Agency

does not view that area as having the habitat

that would be conducive to spawning?

MR. SMOGOR: That's correct. You

could never be absolute. When you say we're

not going to support a water for spawning,

you are making a call on -- you are not

saying that there's no spawning whatsoever

can occur here. But you are making a call,

you are making a general determination on how

suitable is this water for spawning. The

typical fish, the fish that need to be there

to achieve the biological potential that

you've set for the waters, and we've pretty

much set or actually the biological potential

higher for that water, for instance CAWS A.

So we are talking about the difference in

biological potential between, for instance,

CAWS A and CAWS B, and what we believe the

spawning habitat, to achieve anything higher

than what we've set for CAWS B is just not

there.

MR. SAFLEY: Thank you.

MS. FRANZETTI: Moving on to

question 4. What is the justification for

proposing a period average thermal standard

that covers a period of 15 days during parts

of the year and 30 days during other parts of

the year?

MR. TWAIT: The Agency used the same

periods that Chris Yoder did and with the

period is a 15 days, that's when waterways

are usually changing the most in the spring

and fall.

MS. FRANZETTI: Mr. Twait, as you said

spring and fall are when waterways are

typically changing the most, but is that

typical of this waterway which we've had a

lot of testimony about is very different from

most waterways?

MR. TWAIT: I'd have to take a look at

our proposal and see.

MS. FRANZETTI: I'm talking about what

actually goes on in this waterway, not really

what you've proposed in the standard, but

what actually occurs given the effluent

dominant nature of this waterway, and I'm

talking about the Chicago Sanitary and Ship

Canal up into the upper-Des Plaines island

pool.

MR. TWAIT: I am looking at Exhibit 15

once again, and Chris Yoder's thermal report,

Appendix table 2, using the Route 83 CSSC

Channel, Chicago Sanitary and Ship Canal, and

I looked at the mean temperatures real quick.

The change from January to February was 30

degrees, from February to March was four

degrees, from March to April was four degrees

and from April to May was 8 degrees, and May

to June was 7 degrees, and then -- well, from

July to August was two degrees, August to

September was four degrees, September to

October was nine degrees, and from October to

November was 7 degrees, and November to

December was 7 degrees. So I believe it does

change the most in the spring and fall.

MS. FRANZETTI: And which column

heading were you using on Appendix 2?

MR. TWAIT: I was using the Mean

temperature.

MS. FRANZETTI: The first "mean" with

the little footnote 1 above it?

MR. TWAIT: Yes. And I'm sure you

could use several of those columns to --

MS. FRANZETTI: Evaluate that issue?

MR. TWAIT: -- to evaluate that issue.

MS. FRANZETTI: Okay. Now turning

to --

CHAIRMAN TIPSORD: I'm sorry,

Mr. Safley?

MR. SAFLEY: I have some follow-up on

that question. I'll wait for you.

MS. FRANZETTI: No, go ahead.

MR. SAFLEY: Mr. Twait, you stated in

response to Ms. Franzetti's question that you

used the same periods that Mr. Yoder had

provided in his options; is that correct?

MR. TWAIT: Yes.

MR. SAFLEY: Did you have any

discussions with Mr. Yoder regarding whether

those periods were appropriate or the reasons

why he had chosen them?

MS. WILLIAMS: I think we talked about

that when he was here. You asked him about

whether they were appropriate or why he chose

them. It's on the record.

MR. SAFLEY: I didn't ask what

Mr. Yoder said. I asked what conversations

the Agency had had with Mr. Yoder about the

issue.

MR. TWAIT: I did not have any

additional conversations with him

specifically about changing those.

MR. SAFLEY: Did the Agency conduct

any other independent evaluations about

whether or not those time periods were

appropriate for setting changing seasonal

temperatures?

MR. TWAIT: The Agency didn't conduct

any particular study. I was part of the

ORSANCO Work Group, O-R-S-A-N-C-O, and they

had looked at changing to go to a complete

month rather than the two week period. And

what they found was during the summer -- or I

mean during the spring and fall months

because there was so much variation there,

when they chose their number based on the

75 percentile, that early in the month they

were having either high or low values, and at

the end of the month they were having just

the opposite as temperatures were changing,

and so they felt that it was, that Chris

Yoder's periods were appropriate.

MR. SAFLEY: I noticed obviously in

your testimony and in the data that's in the

Exhibit to Mr. Yoder's testimony that we

talked about and in the standard itself,

everything is based on months or half months.

Is there a reason that the temperature

changes happen to line up with the 1st and

31st or 30th or 28th of each month other than

that's kind of normal record keeping period?

Is there a biological reason that on January

31st things change?

MR. TWAIT: No.

MR. SAFLEY: So that your

understanding is that comes out of, those are

the kind of records that people normally keep

on a monthly or weekly basis?

MR. TWAIT: I don't know the reason

for Chris choosing the dates that he did.

However I do note that it is, when you go

from the 1st of the month to the 30th of the

month and then divide that in half, that

would correspond to the Agency's DMR,

Discharge Monitoring Reports, but I don't

think that was Chris' or our intention. I

don't know what Chris was thinking.

MR. SAFLEY: And my reason for asking

the question -- I guess I'll ask you another

question -- am I correct that you would agree

that the changes in temperature don't pay

attention to the calendar and whether or not

it's the 31st of the month or the 1st of the

next month?

MR. TWAIT: That is correct.

MR. SAFLEY: Is it the Agency's

position that if someone, that the schedule

that Chris Yoder provided in his options and

the schedule that the Agency has thus

incorporated in the Rule is the only possible

schedule that will be protective of the uses

in these water bodies?

MR. TWAIT: No, I think you could do

one week period if you so chose.

MR. SAFLEY: So the Agency hasn't

conducted any kind of evaluation to say, this

is the only way it could be divided up and

the only way the temperatures could take

place. If we don't have a two week average

for the two weeks in April, then that's going

to have some kind of adverse impact on the

aquatic life, the Agency hasn't done that?

MR. TWAIT: No, not at all.

MR. SAFLEY: Keeping in mind the

seasonal changes, is that answer the same

with regard to the time periods that were

used, and also I guess the shape of the curve

I'll say keeping in mind that the Agency

wants to have a curve of higher temperatures

in the summer and lower temperatures in the

winter, is it correct that the Agency has not

conducted any evaluation to say the shape of

the curve that we've proposed with the

temperature changes taking place in the exact

way that we've proposed them here is the only

curve that's protective of the aquatic life?

MR. TWAIT: The shape of that curve is

based upon the quote-unquote background

temperature that we chose. So if you

shifted, if you wanted to go from the 20th of

one month to the 20th of another month, I

believe the same shape of the curve would

happen but you'd get slightly different

numbers.

MR. SAFLEY: But the Agency hasn't

concluded at this point that the schedule of

changes that it has proposed is the only one

that could possibly be protective of the

aquatic life?

MR. TWAIT: No.

CHAIRMAN TIPSORD: Just a point for

the record too, we talked yesterday about

Appendix Table 2, as well as from Exhibit 15.

Because there are a lot of appendices and

they are all mixed in, there's 2E and 2G, I

want to be clear that Appendix Table 2 that

we are talking about is the one that's in

Appendix B of Exhibit 15, correct?

MR. TWAIT: Yes, I believe that is

correct. Yes.

CHAIRMAN TIPSORD: Thank you.

MS. FRANZETTI: Moving on to question

5, and now I'm turning to the question on the

actual implementation of these proposed

thermal standards and how dischargers

compliance with them will be determined. So

that's the background on this question.

How will compliance with the

period average standard be determined? In

other words, will it be the average

temperature determined from all samples taken

during the subject period? And if so, how

many samples at a minimum will be required?

MR. TWAIT: The Agency hasn't

determined that. The number of samples --

the Agency hasn't determined the number of

samples that would be required, but those

samples would have to be representative of

the entire period. So if the period was one

month long, you couldn't wait for the last

week of that month to take your samples. It

would show a violation.

MS. FRANZETTI: What type of samples

will need to be taken for thermal -- you

know, we talk about samples. What are we

dealing with?

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

that. We haven't -- that hasn't been

determined. I don't think it would be any

different than what we consider for general

use, but I don't know that we have a real

good methodology.

MS. FRANZETTI: What do you currently

use for general use?

MR. TWAIT: I would have to ask

someone from the permit section.

MS. FRANZETTI: Does anyone on the

panel know?

MR. SULSKI: Just generally when a

permit is issued, the Agency says the sample

shall be representative and they leave it at

that. And in some cases they will say 24

hour composite on an estimate, for example,

but there's always that underlying condition

that the data you submit has to be

representative. So that can be worked out in

the permit-permittee negotiations on what

they think is representative or not.

MS. FRANZETTI: Well, I'm trying to

understand for period average, what type of

samples am I averaging the temperatures from?

Does that make sense to you? I think it

makes a difference whether it can be a grab

or does it have to be some sort of 24 hour or

continuous sampling, and how then does one,

if the ladder, how does one average?

MR. SULSKI: What a permit writer does

is they suggest in a draft permit what they

think is going to be representative sampling.

At that point the permittee can come back and

say, well, we don't agree with that and here

is what we think and here is the data that

supports that that wouldn't be representative

and here is our alternative for what you've

proposed in the permit. It gets worked out

on a case by case basis.

MEMBER RAO: May I ask a clarifying

question? Are we talking about a discharger

monitoring instream or just effluent

monitoring that you are talking about when

you talk about compliance?

MR. TWAIT: I think the question was

more towards sampling in the stream if I'm

not incorrect.

MS. FRANZETTI: Actually not. I was

really seeking information so that the

potentially effected dischargers of this

proposed rule can take your answers and start

applying them to their current effluent and

see whether or not they are going to be able

to comply with these proposed standards, and

it's somewhat impossible to do that without

having input on how are these, how is

compliance with these proposed period

averages going to be determined because I

think you would agree it's a new concept.

MR. TWAIT: Yes. And the period

average would have to be representative of

what the stream is seeing out of your mixing

zone and whether it's continuous data that's

averaged or if it's grab samples once a day

that's averaged or if you think weekly

samples that's averaged, just as long as it's

representative. And I think that the permit

section will have to work out how they want

the discharger to come up with that data.

MS. FRANZETTI: What you are saying

is, it's up to each effected discharger in

looking at these proposed rules to basically

decide what is a representative sampling

regime for their particular effluent.

MR. TWAIT: I think it will be up to

the discharger to make the argument to the

permit section, yes.

MS. FRANZETTI: And ultimately take

that to the permit section and keep their

fingers crossed that they agree.

MR. TWAIT: Yes.

CHAIRMAN TIPSORD: Mr. Safley had his

hand up first.

MR. SAFLEY: If I could follow-up on

that, Mr. Twait. As I understand your

answers, if one of my clients who is

discharging to one of these water bodies,

wants to take your rule and evaluate whether

they can comply with it as written, they've

got to come up with what they think the

permit section will accept, go out and take

measurements, and then hope that they are

right about what the permit section works

out; they are making their judgments on how

important this rule making is to their

facility based on an assumption that the

permit section is going to accept their

sampling methodology; is that correct?

MS. WILLHITE: Marsha Willhite. Can I

respond to that one? I would in that

situation encourage some conversation with

the permit section before they went about

doing that type of study.

MR. SAFLEY: Is the permit section

prepared right now to have those kind of

conversations while this rule making is going

on?

MS. WILLHITE: Because what you are

suggesting is essentially a study to

determine, and you know it's not regulatory

compliance based information, I don't see why

they wouldn't.

MR. SAFLEY: That's fine. What I'm

trying to get to is, I think everybody, all

the dischargers in this room are trying to

understand how this rule making is going to

effect them and to do that as Ms. Franzetti

has pointed out, the way in which samples has

to be taken is very important. And if that's

not something that we can figure out until we

walk into the door with a proposed NPDS

permit and we find out that, oh, you were all

wrong, that's not what we are going to accept

and what we thought we were going to be fine

with, you are not at all fine with. And it's

going to cost you whatever money.

MS. WILLHITE: If one of your clients

would want to be doing a study to look at

potential approaches to representative

sampling, then I would be willing for folks

to consult and come up with an approach.

MR. SULSKI: Can I just add something

to that? I think you would be putting the

cart before the horse. Generally how the

permits get written is, the permit writer

looks at the regulations, look at the

circumstances and suggests a monitoring

scheme that will satisfy the Agency in terms

of whether this discharge will comply with

the regulations, and they put that in an

internal notice permit which the permittee

gets. At that point then there is a

negotiation period whereby, you know, the

permittee can say, well, I don't agree with

you and here is why.

MS. WILLIAMS: Let me jump in because

I think Rob is also putting another cart

before the horse. We are setting the reg

here, so this is all about after the reg is

set. I have at least discovered in this

process that there may be information out

there about impacts on dischargers that we

did not know or consider were going to be

effected. So if there's information out

there now that can be submitted to us now

that we can take into account now in

evaluating what the range should be, we would

like to see that information now -- not now,

but tomorrow.

MS. FRANZETTI: If I can, just

following up on that. I think what would be

helpful is for the Agency to think about,

based on the more typical situations -- and

bear with me. This will become a point

hopefully -- but as I sit here, a lot of

plants operate for a certain number of hours

in the day and then may shut down. Those

that are not going 24 hours. And certainly

when they shut down, their effluent

temperature may get cooler, because they are

not using the water for cooling purposes in

their manufacturing operation, and this is a

period average value. Now so while typically

a representative sample when you are dealing

with a metal standard, I don't think one

would say that is representative to be taking

the samples when the facility is not

operating. But this is a thermal period

average and part of that whole averaging is

you have some times of the day when there is

a higher heated effluent going into the river

but other parts where there's not and that

does average out in the river. Or am I not

understanding this correctly?

MR. TWAIT: I understand that, and

yes, that would be my understanding is we are

looking at a period average over sometimes

two weeks and sometimes a month. So if you

are, if a plant was to run full board for two

weeks and then shut down for the last two

weeks, somehow you would want to build that

into your period average. I mean, because

that's the temperature that the fish are

seeing. Now, if -- the other thing that

occurred to me is, if you are asking me how

you have to do that, I could just say take a

grab at noon on every day outside your mixing

zone, but that wouldn't necessarily be an

appropriate way to do it, and I'm sure that

the dischargers know when they are operating,

when they are shutting down and how to come

up with a representative temperature outside

their mixing zone. They would know much more

than I would.

MS. FRANZETTI: I understand what you

are saying. I just wanted to establish that

the fact that a plant is not running does not

make that nonrunning period unrepresentative

necessarily based on what this period average

standard is attempting to regulate; correct?

MR. TWAIT: The period average is what

the fish are seeing in the stream so, yes,

that is correct. If your plant was operating

eight hours of the day and you only wanted

the sample or only wanted to figure out the

temperature at that time, and that's when you

took your samples, that's what would be

representative. But on the other hand, if

you're taking samples throughout the day,

that would probably be more appropriate and

representative of what the fish are seeing.

MS. FRANZETTI: Okay. I take it that

a potential alternative -- again, just to

understand the Agency's thinking in response

to your invitation for people to come forward

to you with ideas -- another possible

alternative for a discharger would be to put

an instream monitoring station in, in the

vicinity downstream of their discharge?

MR. TWAIT: Outside of their mixing

zone, I think that would be appropriate.

MS. FRANZETTI: I don't know how

feasible that is. I'm just exploring

alternatives here.

CHAIRMAN TIPSORD: Mr. Ettinger and

then Mr. Diamond.

MR. ETTINGER: Is there anyone at this

table who is involved in writing permits?

MS. WILLIAMS: No.

MR. ETTINGER: Have any of you seen --

MR. SULSKI: Let me qualify that. I

am involved.

MR. ETTINGER: Have any of you seen

the NPDS permit for Midwest Generation's

Joliet plant?

MS. WILLIAMS: Yes.

MR. ETTINGER: Have you seen how

temperatures are handled in that permit

regarding monitoring?

MR. TWAIT: Currently, yes.

MR. ETTINGER: Do you imagine that any

of these principles that are established for

that permit would apply in the case of this

permit or permits written under the new

regulation?

MS. WILLIAMS: Can you explain?

MR. ETTINGER: No, I probably can't.

MS. WILLIAMS: Can you flush it out?

MS. FRANZETTI: Maybe I can help. Is

there any average temperature standard like

this period average applicable currently to

the Midwest Gen Joliet plant?

MR. TWAIT: I don't believe so.

MS. FRANZETTI: Right. So is there

anything in the Midwest Gen Joliet permit

today that involves compliance monitoring for

an average thermal standard?

MR. TWAIT: No.

MS. FRANZETTI: Thank you.

MR. ETTINGER: I guess it's a matter

of what like is.

Are you aware of provisions in the

current Joliet permit that calls for not

allowing any excursion over a percentage

period at the I-55 bridge?

MR. TWAIT: Yes.

CHAIRMAN TIPSORD: Mr. Diamond?

MR. DIMOND: Mr. Twait, in several of

your answers you've been referring to mixing

zones, but didn't you testify back in Chicago

that it's likely that most dischargers will

not be eligible for a mixing zone because of

the background ambient temperature of the

river?

MR. TWAIT: I think if the background

temperature is elevated above the water

quality standard, then, no, they would not be

eligible for a mixing zone. However, I think

that what would be reasonable is to expect

that at some point the upstream facilities

will be meeting the water quality standard.

MR. DIMOND: Then a second question

is, regardless of how dischargers will

measure the compliance of their effluent with

whatever their permit conditions are, how

will the Agency or what data will the Agency

use to determine compliance with the water

quality standard that might be set in this

proceeding?

MR. ESSIG: It would be based on

ambient sampling, whatever ambient sampling

is occurring in those effected regions or

segments of those streams.

CHAIRMAN TIPSORD: Mr. Essig, remember

to keep your voice up.

MR. DIMOND: How often is that ambient

sampling conducted?

MR. ESSIG: Currently I know MWRD

does, they do monthly sampling at most of

their ambient stations. Illinois EPA usually

does it nine times a year. There are various

organizations that are doing continuous

monitoring. We do some of that ourselves,

but on a limited basis. Whatever data is

available we will try to use it.

MR. DIMOND: And for the upper Dresden

island pool, how many sampling stations are

there in that region?

MR. ESSIG: As far as ambient stations

go, there are none.

MR. DIMOND: I thought there was one

at the I-55 bridge. Is that technically

outside?

MR. ESSIG: Well, Midwest Gen has a

sampling location on I-55, but MWRD no longer

has any ambient stations in that pool. IEPA

hasn't had any in that pool. You had one

upstream in the Braden pool, but not

downstream of the Brandon damn.

MR. DIMOND: So if you had multiple

ambient stations, I understand you don't, but

if you had multiple ambient stations within a

particular reach, would you average all of

those together for sampling at a particular

time to determine compliance with the water

quality standards?

MR. ESSIG: No, we would probably use

each individual station separately, but we'd

have to look at that.

CHAIRMAN TIPSORD: Mr. Fort?

MR. FORT: Going back to a comment

Mr. Twait made a short while ago about what

happens if there is no mixing zone because

upstream sources had elevated temperatures,

and I thought I heard you say that those

negatively impacted sources could expect in

some period of time that the upstream sources

would be meeting the thermal water quality

standard. Did I basically characterize your

testimony?

MR. TWAIT: I think that's

appropriate.

MR. FORT: Do you have any sense of

how long that might be for corrective

measures or compliance measures to occur?

MR. TWAIT: We did not write anything

into the proposal simply because no one

suggested a time period was needed, and we

did not want to assume that that would be one

year, two years, ten years or a hundred

years. I think that it would be fair to say

that the Agency understands that at some

point in time it would be appropriate to have

the standard met.

MR. FORT: I'm going shift to gears a

little bit, but I think it still follows onto

this point. The period average values that

have been proposed for temperature, and they

are almost identical for all the stream

categories, slight difference for the Use B

Waters, are those all based upon the 75th

percentile of the Metropolitan Water

Reclamation District values on a monthly

basis?

MR. TWAIT: No.

MR. FORT: Which are not?

MR. TWAIT: The summer months, June

16th through September 15th, are based on

Chris Yoder's methodology which can be found

in Exhibit 15. And as I have testified

previously, some of those months or periods

are based upon the ambient station at the

Route 83 bridge on the Chicago Sanitary and

Ship Canal.

MR. FORT: So this again goes back to

the background, that 75th percentile, that

background at the Route 83 bridge is what is

coming through the stream?

MR. TWAIT: Yes. All of the nonsummer

months are based upon 75th percentile of the

background.

MR. FORT: So in those other 25

percent where it's above background, you have

a violation occurring in the stream that any

discharger might be facing?

MR. TWAIT: No.

MR. FORT: Why not?

CHAIRMAN TIPSORD: Excuse me, but we

covered this extensively yesterday afternoon

about what the 75th percentile meant and what

the 25th meant. I'm happy to go into it a

little bit, but we spent a lot of time

talking about math yesterday afternoon.

MR. FORT: I'm trying to do the mixing

zone concept as opposed to the 75th

percentile.

CHAIRMAN TIPSORD: That's fine. I

think the bottom line is with averaging

because the 75th percentile encourages the

averaging, it does not mean 25 percent of the

time people out are out of compliance.

MR. TWAIT: The 75th percentile is

based upon all of the individual temperatures

measured during that period, and we're taking

the 75th percentile and using it as what's

going to become an average.

MR. FORT: I understand.

MR. TWAIT: Okay.

CHAIRMAN TIPSORD: Go ahead.

MR. FORT: I'm going back to the

mixing zone concept. We've already got some

possibility -- we can argue the numbers --

but some possibility of the background here

being higher than the period average, that

would then seem to throw anybody downstream

into no mixing zone conditions?

MS. WILLIAMS: I have to object

because I think yesterday the testimony

clearly was Scott did not think that that was

a realistic possibility that would happen,

what he just said.

MR. FORT: If that's his opinion,

that's fine, but I'm asking for his opinion

not yours so.

MS. WILLIAMS: Well, it was part of

your question, I guess. Maybe you can

rephrase the question.

MR. FORT: I was trying to ask the

question differently.

CHAIRMAN TIPSORD: Let me try this,

and correct me if I'm wrong. Mr. Twait, is

it your opinion that the background levels

will not -- I can't even get there. That the

ambient temperature will not exceed the 75th

percentile at the Route 83 bridge?

MR. TWAIT: The ambience data will not

exceed the -- the average of the data will

not exceed the 75th percentile at that

bridge.

CHAIRMAN TIPSORD: So there might be

occasionally, like day one at 9:00 a.m. there

might be exceedance, day two it would be low

enough so that when you average those two

together, there would not be an exceedance

based on the average when you do the numbers

that you came up with, that would be the 75th

percentile that we talked about?

MR. TWAIT: I believe that would be

correct.

MR. FORT: I am not sure I agree with

that. That's his testimony, that's all I'm

asking for.

MR. SAFLEY: If I could briefly

follow-up on that.

Mr. Twait, we talked about this

Appendix Table 2, and the fact that the

numbers in there are averages based on seven

year's worth of data, and I thought you said

yesterday that in answer to Ms. Tipsord's

question, for any one particular biweekly or

monthly period you would have to look at one

year data; did I understand that correctly

yesterday because I am hearing something

differently from you now?

MR. TWAIT: Yes. The Agency believes

that by taking the 75 percentile of all the

individual data, that the average will be

met.

MR. SAFLEY: And the Agency bases this

decision on this Appendix Table 2 which

includes seven year's worth of data.

MR. TWAIT: I did not break out the

data into individual years.

MR. SAFLEY: So in order to evaluate

over this seven-year period whether or not

the period average had been violated, you

would have to break that out?

MR. TWAIT: You would have to break

that out into the periods and into the years.

However, I don't know that the data will be

sufficient to -- I don't know that there's

enough data in each individual month of the

data base to come up with a representative

average.

MR. SAFLEY: Then how can you make the

statement that it's the Agency's conclusion

that there won't be a violation?

MR. TWAIT: Because we using the 75th

percentile to set the average.

MEMBER RAO: Mr. Twait, you just now

said that Agency does not have representative

data right now to show compliance with the

period averages. In the future if these

rules are adopted, is the Agency going to

change its ambient monitoring in CAWS to make

sure you generate that kind of data or is

current data acquisition sufficient?

MR. ESSIG: At this point I don't

think that will happen. It may. But right

now we are cutting back our ambient program.

MEMBER RAO: So how would you go about

getting compliance with this?

MS. WILLIAMS: I guess what I was

going to say, very often once we know what

the standard is going to be, then we look to

see whether there's additional information

that needs to be collected in order to help

us use it. That comes along with we're in

the process, Howard mentioned that we're in

the process of redefining our ambient

monitoring network, and certainly if the

timing is right, we would take into

consideration what we end up with standards

in this rule making.

CHAIRMAN TIPSORD: I think we are back

to Ms. Franzetti.

MS. FRANZETTI: Moving on to question

6, and this deals with, again, Section

302.408 in the proposed rules which sets

forth three different charts in subparts B, C

and D, setting forth the specific numerical

values for the proposed thermal standards.

And if one looks at what we are terming the

nonsummer months, which is everything outside

of this June 16th through September 15th time

period, as between the proposed use

classification, A, aquatic life A, aquatic

life B and Upper Dresden island pool, the

nonsummer period average proposed thermal

standards are identical across all three use

designations when it seems the basis of the

proposed thermal standards for, at least for

the summer months, is to protect the species

that are there or are expected to be there.

So can you explain how it is rational,

justified to have the exact same nonsummer

month thermal standards as you go from

aquatic life A to aquatic life B, and then

obviously up the use rung of the ladder to

upper Dresden pool, which is a proposed

higher use than even aquatic life use A?

MR. TWAIT: Sure. The Agency looked

at what it would consider a background

temperature, and when we were looking for

that background temperature, we were trying

not to put it to get our background

temperature that's influenced by either Lake

Michigan, a heated effluent or MWRD's

facility, and this was one of the only

stations that we felt appropriate and to

represent the system because other stations

that we had available to us were directly

influenced by something else.

MS. FRANZETTI: Assuming it's possible

to do this, would the Agency be open to

nonsummer month period average values that

are shown to be protective of the expected

level of aquatic life?

MR. TWAIT: I don't see why not.

That's our whole goal here is to protect

aquatic life.

MS. FRANZETTI: Okay. Moving on to

question 7. Why is the January period

average 54.6 degrees Farenheit so much lower

than the December period average of 59.9

degrees Farenheit?

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

that. They are both based on effluent data

that was provided by MWRD.

MS. FRANZETTI: Moving on to question

8. Was the period average concept presented

and discussed within the various UAA

stakeholder group meetings?

MR. TWAIT: Only at the March 2007 --

MS. FRANZETTI: Public hearing?

MR. TWAIT: -- public hearing --

public meeting, sorry.

MS. FRANZETTI: Meeting, I'm sorry.

Moving on to question 9.

Is the proposed daily maximum

thermal standard an instantaneous limit or a

daily average limit?

MR. TWAIT: As it's written now, it's

an instantaneous limit.

MS. FRANZETTI: Is the Agency open to

considering instead the alternative of a

daily average maximum limit?

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

honestly say that we wouldn't be open to

anything.

MS. FRANZETTI: Okay. Sounds like we

should talk.

Moving on to question 10. If the

proposed daily maximum thermal standard is an

instantaneous limit, which you said is

proposed and currently is, how is the

discharger supposed to calculate the two

percent excursion hours proposed in the

thermal quality water standards?

MR. TWAIT: I think that would be how

it's done currently. I know that Midwest

Generation's permit has excursion hours for

the data that's generated at the I-55 bridge,

so I don't think it would be any different

than it's done now based on hourly

excursions.

MS. FRANZETTI: Moving on to --

MR. ETTINGER: Could I just ask a

little more about that?

CHAIRMAN TIPSORD: Yes.

MR. ETTINGER: You say it's an

instantaneous limit, but could you explain

how the excursion works?

MR. TWAIT: It's an instantaneous

limit. Let's just say, pull out a number and

say 91 degrees, any period of time that they

go above 91 degrees, they would have to start

including excursion hours, and I'm not sure

if they calculate that in 15 minute

increments or in hour increments, but there's

only so much time that they can be above that

91 degrees.

MR. ETTINGER: But basically they can

use up their two percent allowance, and then

after they use that up, then the next time

they go over it, that would be a violation?

MR. TWAIT: Yes.

MS. BARKLEY: Tracy Barkley,

B-A-R-K-L-E-Y with Prairie Rivers Network.

And I had a similar question, but I'm

interested in the data that's used to

calculate compliance with thermal water

quality standards or what is it continuous

temperature monitoring or at what intervals

are those data points collected?

MR. TWAIT: That would be based upon

what the discharger determines to do. If

they take samples once per day, then if they

go over their temperature, that would incur

for the whole day. If they are taking

samples every 15 minutes and they were only

over for 15 minutes, that 15 minutes would

apply for their excursion hours. So it's

based upon how often the discharger is

evaluating the data.

MS. BARKLEY: Are you saying then that

you don't know how often they are collecting

the thermal temperature data?

MS. WILLIAMS: Who?

MS. BARKLEY: Midwest Generations?

MR. TWAIT: If it's specific to

Midwest Generation, at the I-55 bridge it's

my understanding it's continuous data, and

I'm not exactly sure how excursion hours are

handled when they have -- when they note -- I

would imagine it's based upon the time that

they are above that value, whether it's per

one minute, five minutes or ten minutes,

since they are taking it on continuous data.

MS. BARKLEY: Okay, thank you.

MS. FRANZETTI: Moving on to

Section E. This is proposed section

302.408(a), which deals with the two percent

excursion hours and two degree Celsius

excursion provisions. Question 1, what is

the basis for the selection of a two percent

excursion hours provision in the thermal

water quality standards versus the existing 5

percent excursion hours provision,

particularly for the proposed lower use

classification waters, such as aquatic life

MR. TWAIT: The Agency chose 2

percent --

MR. ETTINGER: I want to object. Five

percent is to what?

MR. TWAIT: Secondary contact.

MR. ETTINGER: That's the secondary

contact standard?

MR. TWAIT: The Agency chose 2

percent. It's between the 1 percent for

general use and the 5 percent for secondary

contact, and it's the same as the site

specific standard at the I-55 bridge.

MS. FRANZETTI: And by the site

specific standard, you are referring to the

Midwest Gen adjusted standard terms?

MR. TWAIT: Yes.

MS. WILLIAMS: AS96-10 for the record.

MS. FRANZETTI: So in terms of the

underlying rationale, I mean I recognize that

2 percent excursion hours is a stricter

provision than the existing secondary contact

5 percent, not quite as strict as the

existing 1 percent excursion hours allowed

under the general use thermal standard, but

I'm not quite sure why 2 percent as

between -- I mean, why not 3, 3-1/2? Just

trying to get in between them or -- I mean,

can you elaborate on what the thinking was

for why 2 percent was selected?

MR. TWAIT: I think it was an

arbitrary number. I don't know that there's

any scientific rationale behind the 2

percent, and there's no biological reason

behind the 2 percent that I know of.

MS. FRANZETTI: I think question 2

maybe we have covered with the various

follow-up. It's, "How does one compute the

2 percent excursion hours allotment is

applied to the period average water quality

standard?" I think we've covered it unless

anybody disagrees.

Moving on to No. 3. Same question

now with respect to, Mr. Twait, the two

degrees Celsius limit on the degree of

excursion over the thermal water quality

standards. What was the Agency's basis for

proposing that requirement in the thermal

water quality standards?

MR. TWAIT: The two degrees Celsius is

greater than the three degrees Farenheit for

the general use, and it's less than the seven

degrees Farenheit for secondary contact.

Once again, I don't believe that it had a

scientific reason for choosing the two

degrees Celsius. I will note that the two

degrees Celsius was equal to the safety

factor that was applied in the model.

However, I don't necessarily know that

there's any significance to that.

MS. FRANZETTI: And by the model that

you just referred to, that is once again you

are referring to what Mr. Yoder calls his

fish temperature model, correct?

MR. TWAIT: Yes.

Moving on to question 4. Does the two

degree Celsius limit on the degree of

excursion over the thermal water quality

standard apply to both the period average and

the daily maximum?

MR. TWAIT: As the standard is

proposed, the two degree Celsius applies to

the daily maximum only.

MS. FRANZETTI: Can you explain why

it's limited to, in it's applicability, to

the daily max?

MR. TWAIT: Do you want why it was

written the way it was or do you want the

rationale behind it?

MS. FRANZETTI: The rationale for why

it should not apply to the period average and

only to the daily maximum standard.

MR. TWAIT: It was written to apply to

the daily maximum simply because of excursion

hours that we're applying. The period

average, we couldn't come up with an

excursion hour because those are -- I mean,

we could come up with an excursion hour, but

we couldn't come up with something that we

felt comfortable with for excursion hours for

the period average because that's based on an

entire month in some cases.

MS. FRANZETTI: Moving on to F.

Comparison of proposed thermal water quality

standards to existing general use thermal

water quality standards. On page 36 of the

statement of reasons and page 14 of the Twait

pre-filed testimony it is stated that "The

proposed thermal water quality standards are

more stringent than the current general use

standards for the months April through

November, especially when considering the

period average." If the proposed use

designation for the upper Dresden pool is

lower than the general use designation, what

is the rational for proposing thermal

standards for the upper Dresden pool that are

more restrictive than the current general use

thermal standards?

MR. TWAIT: That would simply be based

on the protection of aquatic life. The

general use standard has not been updated for

over 30-some years.

MS. FRANZETTI: Which leads kind of

into question 2. Does the Agency believe

that the current general use thermal water

standards are not adequately protective of

full aquatic life use?

MR. TWAIT: Quite possibly, however we

have not evaluated the general use waters at

this time.

MS. FRANZETTI: So would that answer

amount to that the Agency does not know?

MR. TWAIT: Correct.

MR. ETTINGER: Just to ask, in

answering those questions, were you keeping

in mind the five degree above natural

restriction in the general use standards

currently?

MR. TWAIT: I was only comparing the

numeric values between the two.

MR. ETTINGER: But the five degree

above natural is in the general use standard

and it's not in this proposal?

MR. TWAIT: Correct.

MS. FRANZETTI: Mr. Twait, if you do

consider the five degree above natural

restriction in the general use thermal

standard, is your answer any different with

respect to the adequacy of the protectiveness

of the existing general use thermal standard?

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

Talking to Chris Yoder, as far as he knows,

the five degrees Delta T has no scientific

basis, and he believes that by having a

period average, that that will protect the

aquatic life.

MS. FRANZETTI: Am I correct that with

respect to what the Agency intends to do in

the future with respect to any potential

revision to the general use thermal water

quality standards, that the answer is you

don't know; you have not made any decisions

as to whether you would follow the same

approach you did here to derive thermal water

quality standards?

MR. TWAIT: I think that would be

accurate.

MS. FRANZETTI: And I think we can

skip B and C and move on to No. 3.

On page three of the Sulski

pre-filed testimony there are references to

numerous stressors in the subject waterway,

including legacy contaminants, and it is

noted that the system must support other

critical functions, such as urban drainage,

flood control and navigation. On page 8

Mr. Sulski states that the Illinois EPA

recognized reduced biotic integrity due to

impoundment in the upper Dresden pool. Given

all of these constraints and stressors and

the lower use classification proposed for the

upper Dresden pool, why does the Illinois EPA

believe that thermal water quality standards

that are more restrictive than the current

general use standards is more appropriate for

the upper Dresden pool?

MR. SULSKI: Well, we recognize that

there's reduced biotic integrity in the upper

Dresden island pool, but not below the Clean

Water Act goal. And then I would defer to

Scott's answer that we haven't visited the

thermal standards for 30-some years and we

were compelled to in this proposal, so we

have. And we're applying what we believe is

the best thermal standard available to us at

this point, and so that then becomes what is

protective of the uses that we've defined.

MS. FRANZETTI: Moving on to the next

question. On page 86 of the Statement of

Reasons and page 14 of the Twait pre-filed

testimony, it is stated "That in comparing

the proposed thermal water quality standards

to the existing general use water quality

standards, that the proposed standard for the

December through March time period are

'approximately equivalent,' to the existing

general use thermal standards." However,

giving that the existing general use thermal

standards provide for a 60 degree Farenheit

standard versus the proposed standards

January and February 54.3 degrees and 53.6

degrees Farenheit standards respectively; is

it truly accurate to say that a difference of

of more than five degrees is approximately

equivalent?

MR. TWAIT: The answer to that is

maybe. The 60 degrees Farenheit as in the

general use is the daily maximum, and the

54.3 and the 53.6 degrees Farenheit is a

period average. So with the period average

values, you could go up to 60 or 61 degrees

as long as the period average came to be 54.3

or 53.6.

MS. FRANZETTI: So you would have to,

for an equal period, be approximately six

degrees below the period average down into

the high 40 degree Farenheit numbers to

achieve what you are talking about?

MR. TWAIT: Yes.

MS. FRANZETTI: Which in turn would be

more than ten degrees less than what you can

currently attain as a discharger in that time

period and remain in compliance, correct?

MR. TWAIT: Yes.

CHAIRMAN TIPSORD: Mr. Ettinger, did

you have --

MR. ETTINGER: Under your proposal,

leaving aside what these plants are capable

of generating, in theory you could have an 88

degree temperature in January, which would be

a whopping violation of the current general

standard?

MR. TWAIT: Yes. However, the chance

of meeting a period average at that point

would be small, but yes.

CHAIRMAN TIPSORD: This might be a

good time to take a ten minute break.

Mr. Harley, you have some

follow-up?

MR. HARLEY: Some materials were just

brought in that were accidently left here

overnight. They are back here in the corner

in case anybody is missing anything.

CHAIRMAN TIPSORD: Okay, thank you.

(Brief recess taken, after which

the following proceedings were

had:)

CHAIRMAN TIPSORD: Back on the record.

MS. FRANZETTI: We're now on Section G

of my pre-filed questions, Comparison of

Proposed Aquatic Life Use A Thermal Water

Quality Standards To Proposed Upper Dresden

Thermal Water Quality Standards." Question

1, at page 82 of the statement of Reasons the

Illinois EPA states that for aquatic life Use

A Waters, eight RAS, representative aquatic

species, plus White Sucker, were used to

determine the summer thermal standards; where

for the upper Dresden pool the option of 27

RAS, modified use species were used to derive

the thermal standards. However, even given

this significant difference in the number of

aquatic species used to derive these two

proposed sets of thermal standards, the

proposed thermal standards are identical for

these two different use designations.

Explain how this is scientifically justified

given the differences in the expected

presence of the aquatic life between these

two aquatic life use designations?

MR. TWAIT: As mentioned previously,

the background stations were the same so that

counts for the nonsummer months, and for the

summer months both RAS species had the most

sensitive -- had the same most sensitive

species which was the White Sucker and based

on the MBI methodology, the limits would be

the same.

MS. FRANZETTI: Please -- moving on to

B -- please explain how the resulting absence

of any difference in the thermal standards

derived for what is a limited use

classification versus a use that is described

as -- I'm going to change the question based

on the testimony -- versus a use that is

described as marginally meeting the full

aquatic life use?

MR. TWAIT: The Clean Water Act

supports the use of thermal water quality

standards for the CAWS and lower Des Plaines

waterways. Once again, that is just based on

the protection of the most sensitive species

in those two RAS lists which would be White

Sucker.

MS. FRANZETTI: If I might, just given

the obvious importance then of the reliance

of the White Sucker data, did the Agency do

any review of information available with

respect to the White Sucker species beyond

what Mr. Yoder used and on which he derived

his proposed values, thermal values, based on

White Sucker literature data?

MR. SMOGOR: Based on White Sucker

thermal tolerance?

MS. FRANZETTI: I'm basically asking,

I'm simplifying it down. Did you all look at

any White Sucker information outside of what

Mr. Yoder used and relied on to derive his

values based on White Sucker?

MR. SMOGOR: No, I did not.

MR. WILLIAMS: Can we follow-up and

ask him if he knows if there's any

information on White Sucker thermal tolerance

outside of what was cited in the reports?

MR. SMOGOR: I'm not aware of it if

there is.

MS. FRANZETTI: With respect to moving

to section H --

CHAIRMAN TIPSORD: Excuse me, I'm

sorry Mr. Fort.

MR. FORT: May I do a couple questions

in the same vain as these. My question is

really now that we've talked about a couple

of the Use A Waters, I want to go to the Use

B Waters and to the lower Chicago Sanitary

and Ship Canal. My question is, with respect

to the lower Chicago Sanitary and Ship Canal,

are the present thermal standards protective

of the recreation use which you've identified

in this proceeding, which is nonrecreation

for the lower Sanitary and Ship Canal?

MR. TWAIT: You are asking if the

current secondary standard is protective of

the recreation use?

MR. FORT: Yes.

MR. TWAIT: The thermal?

MS. WILLIAMS: So are you asking if

it's too hot to swim? I don't understand.

MR. FORT: Well, Counsel, I think your

testimony is that this is a nonrecreation use

here. So my question is, maybe it's obvious

but I thought it was a simple question -- do

you understand the question, Mr. Twait?

MR. TWAIT: Yes, I think so. Since

we're not -- I don't believe that it's too

warm based on the fact that we don't expect

people to be swimming in it.

MR. FORT: Now, with respect to the

same body of water, the lower Chicago

Sanitary and Ship Canal, with respect to the

aquatic conditions in that part of the stream

which the prior testimony said it was poor to

a very poor habitat, does the present thermal

standard protect that use of the, the

existing uses of the lower Chicago Sanitary

and Ship Canal?

MR. TWAIT: No, I do not believe it

does.

MR. FORT: And what's the basis for

that?

MR. TWAIT: Because the temperatures

are allowed to go up to a hundred degrees

Farenheit, which we do not believe is

protective of the aquatic environment.

MR. FORT: And what aquatic

environment is there in that reach?

MR. SULSKI: What aquatic environment?

Haven't we been through habitat description?

MS. WILLIAMS: Are you asking for what

species or what type of habitat?

MR. FORT: I'm looking for data from

the Chicago Sanitary and Ship Canal bridge.

MS. WILLIAMS: What kind of data?

MR. FORT: Biological data would be --

MR. ETTINGER: Would part of Exhibit

28 be --

MR. SULSKI: That's some species, but

in terms of overall what information went

into making the proposal, it's contained in

the CAWS attachment B report, and the lower

Des Plaines attachment A report, that gets

into the habitat in addition to what

testimony that we've provided.

MR. FORT: I realize that it gets into

that, but the data that is there says it's a

poor to very poor habitat. And I have yet to

see any data of any species on which the

thermal standard is purportedly based, any

species being taken from this reach of the

ship canal.

MR. ETTINGER: I'm not quite clear

what you mean by this reach of the ship

canal.

MR. FORT: The lower Chicago Sanitary

and Ship Canal.

Can you let him answer. Are you

objecting, Counsel?

MR. ETTINGER: I am objecting because

I'm not clear what reach you are talking

about.

MS. WILLIAMS: Now I'm lost. Can we

ask it again please or read it back.

CHAIRMAN TIPSORD: Can you read back

the question.

MR. SULSKI: Let me try and answer and

see --

MS. DIERS: I'm asking him not to

answer.

MR. SULSKI: I want to answer your

question.

CHAIRMAN TIPSORD: Are we now waiting

for the read back? Let me see if I can do

this. The question, Mr. Fort, is the

question what biological data you have on the

lower sanitary and ship canal that you've

used to come up with these, just what

biological data you have?

MR. FORT: Let me try it again here.

The testimony has been that you've used

either the 75 percentile from the Water

Reclamation District or the Species data to

propose the, to support the proposed

temperature standards, thermal standards. My

question is, what species do you know exists

that you sampled and located in the lower

Chicago sanitary and Ship Canal that fit into

any of these model protocols that Mr. Yoder

has talked about and Mr. Twait has talked

about?

MR. SULSKI: As an example, this is

just one example, on page 477 of Attachment

B, it tells you that a biological assessment

of the fish was performed at Willow Springs

Road and at the Lockport power house and

lock, and there are accompanying tables

shortly after that that provides that data.

MR. FORT: By species?

MR. SULSKI: Yes.

MR. FORT: But that data is not

referenced by Mr. Yoder when he is doing his

testimony that we spent so much time on,

correct?

MR. SMOGOR: Correct. Not

specifically that I'm aware of. The fish

data provided on the following page, 478 in

attachment 2, is a compiled list of the

species CAWS at several Chicago Sanitary and

Ship Canal sites that include the two sites

that Mr. Sulski just mentioned. There is

presence of White Sucker noted in that

compiled list of fish. And, again, given

that we were proposing the potential use for

those waters, we believed it was

reasonable -- well actually I'm going to

strike White Sucker, because White Sucker was

not included in the representative aquatic

species list for this CAWS B water, I

believe. So we believe that the list of fish

that was used for the representative aquatic

species list is consistent with the fish that

are known to occur in Chicago Sanitary and

Ship Canal, and we believe that our proposed

temperature standards are consistent with the

aquatic life potential that we've proposed

for the Chicago Sanitary and Ship Canal.

MR. FORT: I'm sorry, because I

thought the testimony you had in Chicago was

that for the Chicago Sanitary and Ship Canal

the habitat was poor to very poor, and you

were not expecting it to be better in the

future?

MR. SMOGOR: And we are proposing a

biological potential consistent with that.

MS. WILLIAMS: I think I can help.

Can I try a follow-up? I hope. Maybe. I

don't know if it will help or not. Do you

have in front of you, Mr. Smogor, Exhibit 15?

MR. SMOGOR: Yes.

MS. WILLIAMS: Could you turn to pages

9 and 10 of Exhibit 15.

MR. SMOGOR: Okay.

MS. WILLIAMS: And can you identify

where -- this is a table, correct?

MR. SMOGOR: Yes.

MS. WILLIAMS: Could you identify for

us where in the table we would look to

understand the RAS list that was used for the

Use B Waters?

MR. FORT: Counsel, my question is not

with the RAS list. It's connecting the

assumptions in the RAS list to the actual

sampling --

MR. WILLIAMS: I think I'll get there.

Is it okay if you give me a second to get

there.

MR. SMOGOR: With Mr. Twait's

verification, I believe it's the right most

column. If there is an X in the right-most

column, that represents -- if you walk that,

if you see what species each of those X's

refers to, I believe that was the set of

representative aquatic species that Mr. Twait

used.

MR. TWAIT: Yes.

MS. WILLIAMS: Now, with regard to the

existing conditions -- I'm not asking about

biological potential at this point, but just

with regard to the existing biological

conditions in the Use B Waters as you are

aware of it -- can you provide us any

testimony with regard to whether these

species on this list are found where you

would expect them to be found in those waters

as we sit here today?

CHAIRMAN TIPSORD: Which waters?

MS. WILLIAMS: The Use B Waters.

MR. FORT: Counsel, I'm not asking

about use B.

MS. WILLIAMS: Restricted to the lower

Sanitary and Ship Canal.

MR. FORT: Restrict it to the lower

Chicago Sanitary and Ship Canal, please.

That's what I've been looking at. And I see

use B referenced a lot, including in the

attachments you are talking about. I never

see anything on the Chicago sanitary and Ship

Canal. I asked Mr. Yoder that question in

Chicago, and he said, yes, I believe this

electro shocking testing that the District

has done has that information. I think we

established yesterday that he was in error,

that there was no data from the Chicago

Sanitary and Ship Canal in that data set

either.

MS. DIERS: Are you asking a question

now? It sounds like you are testifying. He

is testifying.

CHAIRMAN TIPSORD: He wants --

MS. WILLIAMS: Can you make objection.

CHAIRMAN TIPSORD: Can one of us speak

at a time. He is asking Ms. Williams to

limit her question to the Chicago Sanitary

and ship Canal and he is explaining why.

MS. WILLIAMS: Can I ask it as I asked

it?

CHAIRMAN TIPSORD: Go ahead ask it the

way you asked it, and then we'll ask it the

way Mr. Fort wants it asked.

MS. WILLIAMS: Do you understand the

way I asked it? I asked it generally with

regard to the Use B Waters. Can you try to

answer that first?

MR. SMOGOR: In general, with regard

to Use B Waters, I believe that the fish data

available shows that those eight species can

be expected to occur in Use B Waters.

MS. WILLIAMS: Then with regard to

Mr. Fort's question, are you able to be more

specific with regard to the lower Sanitary

and Ship Canal?

MR. SMOGOR: I can't specify to lower

Chicago Sanitary and Ship Canal because the

data that I've referenced at page 478,

Attachment 2, doesn't have the fish site by

site, but assuming that the sites mentioned

on page 477 -- and there are five sites --

assuming that fish can get from site to site

within the Chicago Sanitary and Ship Canal,

it looks like all eight of those species are

represented in that set of fish data on page

478.

CHAIRMAN TIPSORD: Of Attachment B?

MR. SMOGOR: Of Attachment B, thank

you.

MR. ETTINGER: For my benefit at

least, would you define what you are

referring to in these answers as the lower

sanitary ship canal?

MR. SMOGOR: I don't know what is

being referred to.

MR. FORT: I'm using whatever is on

your Exhibit 29, which has a category there.

I think it's a defined segment.

MS. WILLIAMS: So can you explain,

Rob.

MR. SULSKI: Lower sanitary ship canal

is on page 1 of Exhibit 29. It's the bottom

row. It begins at the Calumet Sag channel

and ends at the lower Des Plaines

River-Brandon pool.

MR. ETTINGER: So it includes this

portion of the Des Plaines above the Brandon

Road lock, the actual confluence area where

the Brandon Road lock and damn --

MR. SULSKI: It's not the lower

Des Plaines.

MR. ETTINGER: I'm sorry, the upper

Des Plaines. It's my understanding is the

upper Des Plaines merges with the Sanitary

and Ship Canal just above the Brandon Road

lock and damn, so the area that you are

defining as the lower Sanitary and Ship Canal

includes that confluence area?

MR. SULSKI: Yes.

MR. FORT: And this confluence area?

MR. SULSKI: No, sorry.

MR. TWAIT: The lower Sanitary and

Ship Canal that we're talking about I believe

ends at the Lockport lock and damn.

MR. SMOGOR: I noticed yesterday, and

I scratched my notes down, on Exhibit 29, if

that's the Exhibit that we have each of the

factors attributed to various sections, I

believe it would be more correct where Rob

mentions "lower Chicago Sanitary and Ship

Canal," I think that would be more correct to

say lower Chicago Sanitary and Ship Canal and

the uppermost portion of Brandon pool. It's

actually both those pieces because -- and

they are all CAWS B Waters, so that

distinction in the actual names of the water

body wasn't necessarily all that meaningful

in terms of they are all CAWS B waters.

Because all of Brandon pool is a CAWS B

water, and then upstream of Lockport, the

lock and damn in the Chicago Sanitary and

Ship Canal, that's also Use B Waters. Does

that help?

MR. FORT: Yes. Just so I make sure I

understand this, in terms of this category,

that is called on Exhibit 29, the lower

Chicago Sanitary and Ship Canal, you would

also include the Brandon Road pool?

MR. SMOGOR: Not all of the pool.

MR. FORT: The upper pool?

MR. SMOGOR: Just the uppermost part

of the pool that -- I'll be specific here --

that extends from the confluence with the

Des Plaines River upstream to the Lockport

lock and damn, that body of water on a map is

actually called the Chicago Sanitary and Ship

Canal. So there is part of the Chicago

Sanitary and Ship Canal that does extend

below the Lockport lock and damn to the

confluence of the Des Plaines River.

MS. WILLIAMS: But not as it's defined

in the regulations.

MR. SMOGOR: But in the regulations --

this is where it gets complicated, thank you

-- we are calling Brandon Pool, the uppermost

portion of Brandon pool in the regulation

only extending to the confluence of the

Des Plaines River with the Chicago Sanitary

and Ship Canal.

MR. FORT: So if I'm starting with the

confluence of the Des Plaines River that

you've talked about working upstream with the

ship canal; you have the Lockport locks,

correct?

MR. SMOGOR: Yes.

MR. FORT: Then we have this invasive

species barrier?

MR. SULSKI: Yes.

MR. FORT: Yes?

MR. SULSKI: Yes.

MR. FORT: Then we go upstream from

that, and this is still the lower Chicago

Sanitary and Ship Canal?

MR. SMOGOR: Yes.

MR. FORT: Thank you.

MS. FRANZETTI: At the risk of going

one more step, but just for those of us who

like the simple map on Exhibit 25, is that

cut-off point that you were referring to as

the upper portion of the Dresden pool, is

that right where you've got the color for the

Chicago Sanitary and Ship Canal, which one

might call a brown color, changing to green

on Exhibit 25, the Chicago Area Waterway

System, Des Plaines River, UAA Segment?

MR. SULSKI: Correct.

MS. FRANZETTI: Back to my pre-filed

questions. Section H, Thermal Rule

Development Process. No. 1, at page 15 of

the Twait pre-filed testimony it states,

"Development of the Agency's proposal to the

Board for thermal water quality standards was

one of the most challenging aspects of the

rule development process." Explain why this

was the case.

MR. TWAIT: I made this statement

because there's no U.S. EPA criteria document

that's recent, and there was so many opposing

views during the work group meetings with

seemingly no middle ground.

MS. FRANZETTI: Mr. Twait, when you

talk about so many opposing views during the

work group meetings, can you give us a brief

description of what you're recollecting were

the many opposing views?

MR. TWAIT: I believe our contractors

thought the secondary contact standard was

lethal. The environmental groups thought

they were not stringent enough, and according

to Midwest Generation's proposal at one time,

they thought the secondary contact standard

was appropriate. And that might still be the

case. I don't know.

MS. FRANZETTI: That was basically the

opposing views, was some thinking secondary

contact was appropriate and others thinking

those weren't strict enough?

MR. TWAIT: Yes.

MS. FRANZETTI: Actually, you made

reference just a few minutes ago to the fact

that the allowance under the secondary

contact thermal standards for a maximum

thermal level of hundred degrees Farenheit

was not protective. Do you recall generally

what I'm talking about?

MR. TWAIT: Yes.

MS. FRANZETTI: The secondary contact

standard also has the other piece of it, that

the water shall not exceed 93 degrees

Farenheit more than 5 percent of the time.

Are you as certain about that portion of the

secondary contact thermal standards being

nonprotected?

MR. TWAIT: I would say based upon

Chris Yoder's work that those numbers are not

necessarily protective, although our two

degrees centigrade excursion for 2 percent of

the time is somewhere around 93 degrees.

MS. FRANZETTI: When you say our, what

are you referring to?

MR. TWAIT: The proposal.

MS. FRANZETTI: So it is rather

similar in that regard, correct?

MR. TWAIT: It's similar only that

it's the same number. In our proposal that

number would be a maximum. In the secondary

contact standard it is -- it's not a maximum,

per se. It's the number that you shouldn't

exceed more than 5 percent of the time.

MS. FRANZETTI: Moving on to question

2 in Section H.

At page 15 of the Twait pre-filed

testimony it states, "There will likely be

additional information developed in the

record of this proceeding that the Board will

have to consider in making a final decision."

Explain the basis for this statement and

expectation for additional information.

MR. TWAIT: The additional -- well, I

made that statement because there was so

much -- since this was a contentious issue,

and like I said there was no middle ground

that we could find, the additional

information that I think could be generated

is Midwest Generation's proposal or

counterproposal that was mentioned

previously, also with the possibility of

economic data.

MS. FRANZETTI: And the Midwest Gen

proposal you were referring to, since there

was more than one, was the August 2007

proposal?

MR. TWAIT: That would be one that I

was specifically thinking about, but there's

nothing stopping Midwest Generation from it's

other proposal either.

MS. FRANZETTI: Moving on to Roman XI,

Technical Feasibility and Economic

Justification of Proposed Temperature Water

Quality Standards. Section A, Technical

Feasibility. Question 1, at page 99 of its

Statement of Reasons the Illinois EPA states

"With regard to the temperature water quality

standards, the proposed rule making will

require Midwest Generation to control the

temperature of their effluent by installing

cooling towers and by instituting closed

cycle cooling or some combination of open and

closed cycle cooling at five of their

facility, Crawford, Fisk, Will County and

both Joliet facilities. Cooling towers and

closed cycle cooling are also widely used and

accepted treatment technologies that are

clearly technologically feasible. Various

factors will impact which technology will be

more appropriate for each facility." And

there are similar factual statements

contained at page 19 of the Sulski pre-filed

testimony.

Question A, describe the technical

feasibility review that the Illinois EPA

conducted on the Midwest Generation

facilities, including the review of such

factors as available space, conflicts with

existing infrastructure, sensitivity of the

area to fogging and other facility and

environmental factors.

MR. TWAIT: No such analysis was done

by the Agency.

MS. FRANZETTI: Moving on to Question

B. Did the Illinois EPA conclude that it is

technically feasible for each of the Midwest

Generation facilities to comply with the

proposed temperature water quality standards?

MR. TWAIT: The Agency did not do a

technical feasibility analysis for the

Midwest Generation facility.

MS. FRANZETTI: So no such conclusion

was reached by the Agency as to the technical

feasibility of compliance for each of the

Midwest Generation facilities with the

proposed temperature water quality standards?

MR. TWAIT: Correct.

MS. FRANZETTI: Question, C, what are

the various factors referenced by the

Illinois EPA that will impact which

technology will be more appropriate for each

Midwest Generation facility?

MR. SMOGOR: Well, I think that it was

beyond the various factors. We also said

that this would be better known to Midwest

Generation, and that's the type of

information that we sought all along.

MS. FRANZETTI: So that was just a

general reference that there are various

factors that will probably implement this,

but are not known to the Agency, they should

be known to Midwest Generation?

MR. SMOGOR: Correct.

MR. ETTINGER: To follow-up. Do you

know whether Midwest Generation supplied any

of this information to you in the course of

the -- do you know if Midwest Gen supplied

any of this information to you in the course

of the stakeholder process?

MR. SMOGOR: Yes, they did supply us

with information. I think as we get through,

we're going to cover some of that.

MS. FRANZETTI: Moving on to question

2. In assessing technical feasibility, to

what extent has the Illinois EPA relied upon

the statements made in Attachment A at page

1-22 which states "In the early 1970's

cooling towers were not common and were

expensive. Today cooling technology using

forced and natural draft is commonly used by

and mandatory for many power plants on rivers

that have a similar size as those located on

the Des Plaines River, e.g. plants operated

by the Tennessee Valley Authority or by

Wisconsin Energies on the Wisconsin River in

Kenosha, Wisconsin?

MR. TWAIT: The Agency did not rely on

that statement.

MS. FRANZETTI: Okay. Did the Agency

have some -- did the Agency not rely on it

because the Agency had some questions as to

the accuracy and reliability of that

statement?

MR. TWAIT: I think the Agency didn't

rely on that simply because we know that

cooling towers can be added to an existing

power plant if there's space available.

MS. FRANZETTI: And what is that

knowledge based on, Mr. Twait?

MR. TWAIT: Offhand I would have to

say the construction of cooling towers at one

of the Joliet facilities. So we know they

can be added. We didn't meet the

statement --

MS. FRANZETTI: Do you have any such

knowledge with respect to turning a

once-through cooling plant into a closed

cycle cooling facility?

MR. TWAIT: I know of no place that

that's been done.

MS. FRANZETTI: Moving on to question

3. At page 99 of its Statement of Reasons

the Illinois EPA states, "In particular

Midwest Generation will have to study the

best way to provide cooling at its smaller,

older facilities where the availability of

additional land may determine how much

cooling capacity can be installed." Question

A, which Midwest Generation facilities is the

Illinois EPA referring to as the smaller,

older Midwest Generation facilities?

MR. TWAIT: This statement should not

have listed any particular facility. It

should have included all of the facilities

where Midwest Generation will have to look

whether cooling can be installed. There's no

reason for it to be for any of the smaller,

older facilities. It should be for all the

facilities.

MS. FRANZETTI: We'll consider that at

the older smaller facilities deleted.

Moving on to B, has the Illinois

EPA made any determination as to whether it

is technically feasible for Midwest

Generation to install sufficient cooling

capacity -- well, I think actually now that

you've changed it, you've already answered

that question earlier that, no, you have not.

Moving on to question 4. At page

99 of its Statement of Reasons the Illinois

EPA states, "As the Board is already aware,

Midwest Gen is currently considering whether

to close its will County, Crawford and Fisk

facilities. See attachment RR." What facts

is this statement based on?

MS. WILLIAMS: The information

contained in Attachment RR which is a

memorandum of understanding between Midwest

Generation and the Agency.

MS. FRANZETTI: Okay. And nothing

else?

MS. WILLIAMS: Nothing else.

MS. FRANZETTI: Well, then let me ask

a few follow-up questions. Is the Agency

aware that Midwest Gen has four units at the

Will County plant and only two of those four

units may or may not be shut down in 2010

under the Mercury Emission Regulations?

MS. WILLIAMS: Someone at the Agency

probably is. I don't know that I am, but

I'll accept that if that's your --

MS. FRANZETTI: We believe that that

is true.

MS. WILLIAMS: I would believe that is

true if that's what you are telling me is

true, I believe that.

MS. FRANZETTI: So would you agree,

assuming that is accurate that under the

Mercury Emissions Regulations it's only two

of the four units at Will County that may or

may not be shut down, would you agree then

it's not accurate to state that Midwest Gen

is considering closing the Will County plant?

MS. WILLIAMS: Absolutely.

MS. FRANZETTI: With respect to

Crawford and Fisk facilities, Midwest Gen may

decide to install the applicable Mercury

Emissions control technology rather than

close those plants; would you agree that that

is accurate?

MS. WILLIAMS: Yes.

MS. FRANZETTI: And even if Midwest

Gen were to decide to close the Fisk and

Crawford plants, those decisions would not be

made until 2015 and 2018 respectively; isn't

that correct?

MS. WILLIAMS: That is what the

agreement provides for.

MS. FRANZETTI: And that agreement

being Attachment RR which is what the Agency

relied on?

MS. WILLIAMS: Right, I would assume

that Midwest Generation could make that

decision earlier if they wanted to, but

that's all they are required to do under the

agreement.

MS. FRANZETTI: So moving on to

question B, please explain the Agency's

intent in including this statement that as

the Board is already aware Midwest Generation

is currently considering whether to close its

Will County, Crawford and Fisk facilities,

how is that relevant to the issue of the

technical feasibility of these proposed

rules?

MS. WILLIAMS: I would agree that it's

not relevant to that issue. If it's

relevant, it would only be relevant to the

issue of a cost analysis possibly. I mean,

our only intent was to provide the Board any

information that seemed relevant, and the

only way it would be relevant is if there was

an argument to the value of investing money

to comply with these standards in a facility

that was going to close.

MS. FRANZETTI: Was the agency

considering in making this statement that it

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might be open to deferring any change in the

thermal standards that are proposed here

until after these deadlines in 2015 and 2018?

MS. WILLIAMS: No.

MS. FRANZETTI: At page 99 of its

Statement of Reasons the Illinois EPA states,

"Ultimately if these studies leave Midwest

Generation to conclude that it is technically

infeasible or economically unreasonable to

install additional cooling capacity at these

facilities, Section 316 of the Clean Water

Act allows Midwest Generation to petition for

relief from these requirements."

Subpart A, question, is it

Illinois EPA's position as this statement

suggests that section 316(a) authorizes a

variance from otherwise applicable water

quality standards where the state determines

that achieving these standards is technically

infeasible or economically unreasonable?

MS. WILLIAMS: No.

MS. FRANZETTI: What is the Agency's

position based on this statement?

MS. WILLIAMS: Well, I would say our

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position with regard to 316(a) is that it

seems to indicate an opportunity would be

available for establishing alternative

effluent limitations for thermal discharges

so long as the Clean Water goals for aquatic

life would be protected. It does not appear

that technical feasibility and economic

reasonableness are an explicit component of

that provision in the statute.

Did that answer your question?

MS. FRANZETTI: Well, I think it

answers this statement that is in your

Statement of Reasons you're revising, aren't

you?

MS. WILLIAMS: Yes, I would think it

needs clarification.

MS. FRANZETTI: That as you said you

are not saying that the requirements of

316(a) are that you show technical

infeasibility or economic unreasonableness;

that's not your understanding of 316?

MS. WILLIAMS: That's not my

understanding.

MS. FRANZETTI: I'm going to skip over

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B. Given that answer, I don't think B is

relevant or an applicable question.

Do you know with respect to

question C, if Midwest Generation were to

seek a variance pursuant to Section 316(a),

what standard would apply?

MS. WILLIAMS: I think Midwest

Generation would have to show that the

requested effluent limitation would ensure

the protection propagation of a balanced

indigenous population of shell fish, fish and

wildlife in and on the receiving stream.

That's my understanding of the standard.

MS. FRANZETTI: Do you also have an

understanding of how that standard differs or

does not differ from the standard Illinois

EPA applied in developing the proposed

aquatic life uses and standards?

MS. WILLIAMS: Not specifically. So

was the question with regard to the upper

Dresden island pool in particular or the

whole system?

MS. FRANZETTI: Well, it basically

would apply to any parts of the system to

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which our five plants discharge. So it's not

just to upper Dresden pool. It's all the

Sanitary and Ship Canal.

MR. ETTINGER: Is the answer the same

to each of those areas?

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

the same to each of those areas because the

Agency is not proposing, A, to protect -- the

protection and propagation of a balanced

indigenous population of shell fish, fish and

wildlife for the CAWS B Waters.

MS. FRANZETTI: With regard to that,

Mr. Twait, has there been any discussion

between Illinois EPA and U.S. EPA, Region 5,

as to how 316(a) of the Clean Water Act would

be applied to a water body like a CAWS B or

aquatic life Use B Water body that has

thermal standards that were not based on

trying to maintain a balanced indigenous

population?

MR. TWAIT: Not that I am aware of.

MS. FRANZETTI: Does the Agency know

what new information would Midwest Generation

have to collect and supply, if any, to seek a

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variance pursuant to Section 316(a)?

MS. WILLIAMS: No.

MS. FRANZETTI: Does the Agency know

what additional proceedings would be

required, how long they would take and what

administrative burden they would impose on

the Agency, the Board and Midwest Generation?

MS. WILLIAMS: 316(a) requires

opportunity for a public hearing. That's the

only specific requirement I'm aware of.

MS. FRANZETTI: While any variance

request is pending, what requirements would

apply to Midwest Generation and what costs or

other burdens would those impose?

MS. WILLIAMS: It would be our

assumption that if Midwest Generation or any

other discharger were to seek some type of

site specific relief from any part of this

proposal, whether it be through something

under 316(a) or any other mechanism available

under the Board's rules, we would assume that

would occur during the compliance period

established within the permits that are

issued.

105

MS. FRANZETTI: So are you saying the

Agency would be open to providing, a,

compliance period to cover the time

necessary, reasonably necessary to obtain a

316(a) variance or other similar or

appropriate relief?

MS. WILLIAMS: If appropriate I am

sure we would be open to that.

CHAIRMAN TIPSORD: Mr. Dimond?

MR. Dimond: Let her finish up with

this line of questioning.

MS. FRANZETTI: You know, I'm going to

No. 6.

MR. Dimond: The 316(a) procedure,

does that apply to any facilities other than

electric generating units?

MS. WILLIAMS: No I don't think so --

well, I don't think so. I think that's

right.

MR. Dimond: So a chemical plant or an

oil refinery wouldn't be able to take

advantage of that?

MS. WILLIAMS: Correct.

MR. Dimond: Is it the Agency's

106

position that a normal Illinois variance or

site specific for adjusted standard

proceeding can't be pursued because of the

Clean Water Act?

MS. WILLIAMS: No.

MS. FRANZETTI: Question 6, is it

correct that nonpoint sources of temperature

increases, such as urban run-off, will not be

regulated under these proposed rules?

MR. ETTINGER: I want to the object to

the statement that urban run-off is a

nonpoint source.

MS. FRANZETTI: I'll strike that part

of the question. I don't have a problem with

that.

Is it correct that nonpoint

temperature increases will not be regulated

under these proposed rules?

MR. SULSKI: Any source can be

regulated.

MS. FRANZETTI: Do you regulate

nonpoint sources?

MR. SULSKI: Yes -- well, we do

regulate nonpoint sources in the nonpoint

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source elements of our NPS permit programs,

storm water.

MS. FRANZETTI: Other than storm

water -- well, let me strike that.

Mr. Sulski, doesn't the storm

water have to come out of a point source in

order for you to regulate it?

MS. WILLIAMS: Under NPDS the storm

water that's regulated there is considered a

point source construction and industrial.

MS. FRANZETTI: Are you currently

regulating urban run-off that is not covered

by your storm water program?

MS. WILLIAMS: I think the answer is

no.

MS. FRANZETTI: That's what I think.

No. 7, in the Illinois EPA's Statement of

Reasons discussion of the technical

feasibility of temperature water quality

standards it identifies only the Midwest

Generation facilities. Did the Illinois EPA

conclude that no other dischargers would be

required to control the temperature of their

effluent in order to comply with the proposed

108

temperature standards, and if so what was the

basis of this conclusion?

MR. TWAIT: The answer to your first

question is, no, other dischargers may have

to install cooling in order to meet the water

quality standard. It would depend upon the

size of their discharge and the temperature

of their discharge and whether or not mixing

is available.

MS. FRANZETTI: Moving on to Economic

Justification B. At section Roman V, C, of

the Statement of Reasons, page 99, the

Illinois EPA states, "Regarding the cost of

technology required to comply with the

temperature standards of this proposed rule

making, Midwest Generation has provided the

Agency with only one statement of the

estimated cost of the technology needed to

control the temperature of their effluent at

all five of their facilities in the effected

waterways; Crawford, Fisk, Will County and

Joliet 9 and 29 facilities." With respect to

the "only one Midwest Gen statement of

estimated costs submitted to the Illinois

109

EPA," is the Agency referring to, one, the

April 26, 2004 thermal compliance cost study

report for the lower Des Plaines River that

Midwest Generation submitted to the Agency,

or two, the economic impact analysis for

Midwest Gen's Chicago area waterway power

generating stations provided to the Agency on

January 3, 2005, or three, the economic

information presented by Midwest Gen in it's

power point presentation during the public

meetings on March 20th and 22nd and 2007?

MR. TWAIT: The answer to that

question would be the third option there.

The economic information presented by Midwest

Generation in its power point presentation

during the public meetings on March 20th and

22nd of last year.

MS. WILLIAMS: Which is attachment SS

to the Agency's proposal.

MS. FRANZETTI: Can someone explain to

me why the Agency represented to the Board

that only one economic statement was

presented by Midwest Generation and deemed

the April 26, 2004 and the January 3, 2005

110

submissions not to be economic impact

information submitted by Midwest Gen?

MR. SULSKI: I have the January 3rd

submission.

MS. FRANZETTI: I'm glad you have it.

My question is whether or not the Agency

disagrees or contends that the two submittals

that we made in addition to prior and prior

to, well prior to, the presentations made at

the March 2007 public meetings did not

constitute economic impact information. Or

did you just make a mistake and not take it

MR. TWAIT: Let me start out here.

After reading these, one of my jobs was to

find the first study, and I have to apologize

because my wife delivered early I was not

able to find that particular study. And

hopefully I'll be able to find it before next

time. The II that you have here and part A

does not have a dollar figure involved

anywhere in here.

CHAIRMAN TIPSORD: You are speaking

about the January 3, 2005 information?

111

MR. TWAIT: Yes. That does not have a

cost to Midwest Generation. They do talk

about some of the economic ramifications but

there is no cost included, and it's my

understanding that the April 26, 2004 did

have some costs included, just based on my

recollection, and like I said, I will try to

find that for the next time. And so when we

said the only one, that was incorrect.

MS. FRANZETTI: So if I understand

correctly --

MR. TWAIT: I believe it was

incorrect. Like I said, I will go back and

try to find that particular study.

MS. FRANZETTI: Okay.

MS. WILLIAMS: Do you have it here? I

mean, if we have it here, we can review it

over lunch.

MS. FRANZETTI: Well, I think you are

going to need a little longer than over lunch

to review that study, but we do have it. We

will provide you with a copy. We were not

aware until today that the Agency can't find

it. Would have appreciated perhaps you

112

mentioning that to us a bit earlier.

However, now that you have, we will provide

you with additional copies, but let me

explore this a little bit further.

CHAIRMAN TIPSORD: Excuse me,

Ms. Franzetti, before you do that, the Board

needs copies. If you have the January

document, do you have only one copy?

MS. WILLIAMS: Yes.

MS. FRANZETTI: Madam Hearing Officer,

if you want, we have no problem with

supplying, submitting these to be filed with

the Board just as the Agency has done some

filings after each, after the last set of

hearings. We'll do the same on these.

CHAIRMAN TIPSORD: Okay, that's fine.

MS. FRANZETTI: Given that the Agency

has other assignments to do, we'll take this

one since it is our documentation.

MS. WILLIAMS: I think Mr. Sulski --

Scott said he'd start out, I think Mr. Sulski

would like to complete that answer.

MS. FRANZETTI: I am not sure what

question is pending that you are answering.

113

MR. SULSKI: I wanted to augment

Scott's answer with respect to the January 3,

2005, and you don't have to have it in your

hand yet, you'll get it. This was the

response to a wide request to what we thought

were the most effected facilities, Midwest

Generation and Metropolitan Water Reclamation

District to start generating some cost

numbers for what it would cost to meet at

that time the request was to meet general use

standards. Because that's what all the

assessments were done against general use

standards.

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

just so we are clear is what you are saying

that the Midwest Generation, January 3, 2005,

submission was a response to a request by the

Agency for economic impact information using

the general use thermal standards as a basis?

MR. SULSKI: Correct.

MS. FRANZETTI: Okay.

MR. SULSKI: And this is what we got,

and it didn't include any cost numbers. We

specifically asked for costs of meeting those

114

standards, general use standards. That was

done in a meeting. There was follow-up back

and forth in e-mails, and we were given the

document when I requested an electronic copy

of the document with the hopes of

distributing it to the stakeholders, I was

told that this was not to be distributed to

the stakeholders. I would not be able to get

an electronic copy. I should use the hard

copy to distribute internally within the

Illinois EPA.

MS. FRANZETTI: Were you told anything

as to why the information in that document

should not be distributed outside of the

Agency or just don't distribute it?

MR. SULSKI: I was told maybe there

were some trade secrets or I don't remember

exactly how --

MS. FRANZETTI: You think maybe

Midwest Gen may be concerned that it

contained confidential business information,

Mr. Sulski?

MR. SULSKI: That's what it said,

protected as confidential business

115

information.

MS. FRANZETTI: Did the Agency review

it and come to any decision that it did not

contain such information and raise that with

Midwest Gen?

MR. SULSKI: No, we reviewed it for

some cost numbers that we hoped to get so we

could move along on getting a better handle

on the economic ramifications.

MS. FRANZETTI: And, Mr. Sulski, you

are making all these statements not having

reviewed the April 26, 2004 Midwest

Generation submission, just so that's clear,

correct?

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

remember what was contained in that document.

MS. FRANZETTI: You saw it at one

point?

MR. SULSKI: I don't remember whether

I reviewed the April 26th document.

MS. FRANZETTI: Okay. But that's my

point. You are making all these statements

about no cost information being included in

the January 3, 2005 submission without having

116

reviewed the April 26, 2004 submission,

correct?

MR. SULSKI: I'm taking the document

at its face value and with the contents

therein.

MR. ETTINGER: Could we identify the

individual at Midwest Generation who gave you

this report and told you to keep it

confidential; could we do that?

MR. SULSKI: Sure.

MR. ETTINGER: It was a human being I

assume.

MR. SULSKI: Julia Wozniak. The

submission came under the signature of

Mr. Constantelos (phonetic).

MS. FRANZETTI: Moving on to question

No. 2 --

CHAIRMAN TIPSORD: Excuse me,

Mr. Harley has a follow-up.

MR. HARLEY: The statement that is

referenced in the question from the Statement

of Reasons specifically states, "Cost of

technology required to comply with the

temperature standards of this proposed rule

117

making," is it fair to say that the

presentation that was made in 2007 was more

related to this proposed rule making than the

submission in 2005 that addressed a general

use approach?

MR. SULSKI: I don't know. I would

have to review the presentation more closely.

MR. HARLEY: Is it possible that the

reason why the April 26, 2004 cost study

report was not referenced in this Statement

of Reasons was because it was not directly

related to the temperature standards of this

proposed rule making but was part of a

preliminary process?

MR. TWAIT: It's possible.

MS. FRANZETTI: Well, I'll stipulate

to that because it was submitted about two,

three years before this proposal, so how

could we have looked into our crystal ball

and seen what this proposal was going to be.

MR. HARLEY: As long as we are drawing

conclusions, it seems to me that the

statement in the Statement of Reasons could

be accurate.

118

MS. FRANZETTI: Well, if the Agency

would like to clarify that they were simply

making a statement that a proposal on thermal

standards that nobody had seen before it was

filed with this Board, Midwest Gen had not

previously evaluated what the economic

impacts would be of an unknown proposal, I

will accept that clarification of that

statement.

MR. TWAIT: I think the point of the

statement is, we gave the Board everything we

thought was relevant, and we will continue to

give what we think is relevant to the Board.

MS. FRANZETTI: Is it correct --

moving on to question No. 2. At least with

respect to the April 26, 2004 submission, and

the January 3, 2005 submission to the Agency

by Midwest Generation, is it correct to state

that the Illinois EPA requested that Midwest

Gen submit these economic reports, and that

the Agency did not provide Midwest Gen with

any proposed thermal standards like those in

this proceeding on which to base its economic

information?

119

MR. TWAIT: I believe that would be

correct.

MR. SULSKI: It says any proposed

thermal standards.

MS. FRANZETTI: I'm revising the

question somewhat.

MR. SULSKI: I see.

MS. WILLIAMS: To the extent then that

the revised question refers specifically to

the April 2004, can we limit it to the one

that we know what we are talking about? I

don't think we know for sure.

MS. FRANZETTI: That's partly why I

changed it. I think you've already stated

that as to the January 2005 submission I

believe you asked Midwest Gen to base it on

general thermal standards. Now given the

fact that none of you is aware of and cannot

find the April 26, 2004 submission, I think

I'm correctly assuming you don't know what

anyone asked us to base that proposal on; is

that correct?

MR. TWAIT: It could not have been

this proposal.

120

MS. FRANZETTI: Yes, I understand

that. But none of you as you sit here know

whether with respect to the April 2004

submission we were asked to base it on

general use or something else?

MR. TWAIT: I could take a guess, but

yes, I would agree that since we don't have

did in our hands, we can't tell you.

MS. FRANZETTI: And, Mr. Twait, I

don't want you to guess, is also a part of

the problem here that this request to Midwest

Gen to submit economic information was

primarily handled by Toby Frevert?

MR. TWAIT: Yes, it was.

MS. FRANZETTI: And the rest of you

who are sitting here really didn't have any

involvement in those discussions between Mr.

Frevert and Midwest Generation?

MR. TWAIT: That is true on some

instances, but not all instances.

MR. SULSKI: I'd like to add that for

so many years Midwest Gen has been a very

excellent and worthwhile participator in all

these stakeholder meetings and we've

121

appreciated it. Through this process

assessments were done and stressors were

being identified and the stressors kept going

down to temperatures and DO's as primary

stressors, the business of economics and

costs came up in these stakeholder meetings.

Midwest Generation and Metropolitan Water

Reclamation District was aware of these

discussions. Metropolitan Water Reclamation

District started to generate costs. They

knew. They saw the writing on the wall.

Midwest Generation didn't offer any costs in

the stakeholder process early on, and at

least for this document they were requested

to. And it was also known that the general

use standards were what things were being

compared against.

MS. FRANZETTI: And, Mr. Sulski, I

hope you will stick to that answer once you

review the 2004 submission.

MR. ETTINGER: May I inquire whether

the 2004 submission was filed as CBI or

confidential?

MS. WILLIAMS: We don't know. I can

122

tell you that there's no markings on the 2005

one that we have found. I don't see any

markings of that.

CHAIRMAN TIPSORD: And Ms. Franzetti

has indicated that they will provide us with

those. I'm assuming she'll know if any of

that was confidential.

MS. FRANZETTI: I think that there may

be portions that are CBI. I can't sit here

and say the whole thing, portions -- I don't

think that none is accurate.

MR. ETTINGER: Well, I would just note

on the record that we would object to any

portion of the Agency's burden to meet a --

CHAIRMAN TIPSORD: I can't hear you.

MR. ETTINGER: I would note our

objection to any portion of the Agency's

burden to show the appropriateness of a

subfishable-swimmable designation for any

water being based on information which is not

provided to the public in this hearing.

MS. FRANZETTI: Moving on to question

3. Please clarify whether Illinois EPA

contends that it requested economic

123

information from Midwest Generation that was

not provided to it?

MR. SULSKI: With respect to the

January 4th submission, it did not address --

well, it did not provide costs for meeting

general use standards, which is what the

request was.

MS. FRANZETTI: Moving on to question

4. Did the Illinois EPA provide any comments

or suggest Midwest Generation provide

additional information to supplement the

economic statement it submitted?

MR. TWAIT: I'm not aware of any.

MS. FRANZETTI: Moving on to question

5. Did the Illinois EPA review the Midwest

Generation Economic reports submitted to the

Agency, and if so, what if anything did it

conclude regarding the economic

reasonableness of the cost of compliance by

Midwest Gen with the proposed temperature

water quality standards?

MS. WILLIAMS: So we are talking about

the two reports that are referenced here?

CHAIRMAN TIPSORD: We're asking about

124

all three, aren't we?

MS. FRANZETTI: We're asking about all

three, although I have to concede based on

the answers today that I don't know whether

the Agency reviewed the first one.

MR. SULSKI: Well, I could speak to

the second one.

MS. WILLIAMS: I wasn't thinking of

identifying of the power point presentation

as a report. Are we considering that a

report for the purposes of this question?

MS. FRANZETTI: No, I would not call

that a report. I would call it a power point

presentation.

MR. SULSKI: I will respond to 5.

This references the proposed temperature

standards which are here. This report was

generated in response to a request to look at

general use standards at the time.

MS. FRANZETTI: Am I correct that the

Illinois EPA did not make any conclusions

regarding the economic reasonableness of the

cost of compliance by Midwest Generation with

the proposed temperature water quality

125

standards?

MR. SULSKI: Since it doesn't make any

costs, it was -- since it didn't involve any

costs, it was fairly difficult to make a

decision on costs.

MS. FRANZETTI: Okay, Mr. Sulski, I

understand that's your position on the

January 2005 submission. What about the

power point presentation then during the

meetings in March which the Agency does seem

to be aware of, is it also your position that

did not contain any costs of compliance?

MR. SULSKI: I would need to look at

the power point presentation.

MS. FRANZETTI: Which you haven't done

before today?

MR. SULSKI: I attended the

presentation.

MS. FRANZETTI: But you didn't really

review the information, the cost information

we've presented at the March public hearings?

MR. SULSKI: I didn't to the extent

that I can kick it out right now.

MS. FRANZETTI: Well, Mr. Sulski, the

126

whole point of this question is not to have

you do your review and draw your conclusions

today as you sit here; it's whether before

the Agency proposed these standards it

conducted any review of the economic cost

information Midwest Gen had submitted to it

and had drawn any conclusions regarding the

economic reasonableness of the cost of

compliance by Midwest Generation. Was that

done before these rules were filed with the

Board?

MR. TWAIT: We did include the

information from the power point into the

Statement of Reasons.

MS. FRANZETTI: I understand you

included it. I am not blind. I see it. But

that's not my question, People. I'm simply

asking, did you or did you not conduct any

review of the economic information we

submitted to you prior to the filing of these

proposed rules for purposes of evaluating the

economic reasonableness of compliance by

Midwest Gen? It can be no. You know, the

answer can be no, but we just want to

127

establish on the record whether or not you

conducted any such review.

MR. SULSKI: Reviews -- we attended

the presentation. We received a January 4th

response. I personally -- let me finish my.

MS. FRANZETTI: Well, you are not

answering my question, Mr. Sulski, so you are

really wasting all our time. With all due

respect, I don't want to waste anybody's

time.

CHAIRMAN TIPSORD: Let's go off the

record for a second.

(Brief recess taken.)

MR. SULSKI: The answer is, yes, we

reviewed it.

MS. FRANZETTI: What did you conclude?

MR. SULSKI: I concluded that the

information did not fall in line with the

affordability guidance in the Clean Water Act

criteria.

MS. FRANZETTI: And is based solely on

your review of the January 3, 2005

submission, correct?

MR. SULSKI: I reviewed the

128

presentation as well, so it would apply to

the presentation material as well.

MS. FRANZETTI: So now you do remember

reviewing all that and drawing these

conclusions, correct?

MS. SULSKI: Yes.

CHAIRMAN TIPSORD: Mr. Harley, you

have a follow-up?

MR. HARLEY: In the course of

answering your questions, you refer to the

fact that there are other people at the

Agency who participated in the preparation of

this rule making package; is that correct?

MR. SULSKI: Yes.

MR. HARLEY: You've referred to Toby.

Who is Toby?

CHAIRMAN TIPSORD: That's been asked

and answered and that's on the record from

the prior hearings.

MR. HARLEY: Is it possible that Toby

was one of the people who reviewed the

information, although he is not here to

testify today?

MR. SULSKI: Yes.

129

MS. FRANZETTI: Let's ask about that.

Mr. Twait, did Mr. Frevert give you our

economic impact submission that we made on or

about April 26, 2004 or do you recall?

MR. TWAIT: I believe that I received

it and I do believe that I read it. However,

as I mentioned before, I was not able to look

for it.

MS. FRANZETTI: I understand. Did you

ever discuss it with Mr. Frevert?

MR. TWAIT: If I discussed it with

him, it would have been in 2004. I do not

recall that discussion.

MS. FRANZETTI: You don't recall

having any discussion about our submission in

2004 with him?

MR. TWAIT: Not that I'd like to enter

into testimony. I just don't remember.

MS. FRANZETTI: That's fine, if you

don't remember. Does anybody else on this

panel recall having any discussion with

Mr. Frevert concerning the economic impact

information submitted by Midwest Generation?

MS. WILLIAMS: In April of 2004?

130

MS. FRANZETTI: At any time.

MR. SULSKI: I don't remember any

details of discussions. They may have taken

place.

CHAIRMAN TIPSORD: Mr. Ettinger, you

have a follow-up?

MR. ETTINGER: We've gone for a while

on this. I fail to see the relevance

involving internal discussions of the

drafting of the petition here. The petition

rises or falls based on the petition itself

and evidence offered in front of it.

CHAIRMAN TIPSORD: I respectfully

disagree. I think what we are trying to

establish here is a record about the economic

considerations by the Agency, and one of the

things the Board has to decide is the

economic reasonableness, and the Board can

take it for what it's worth. But I do think

it is relevant because it is what the

economic considerations were that the Agency

considered in developing its proposal and how

they came to their conclusions. So with all

due respect, I do think it's relevant.

131

MS. WILLIAMS: So then to respond

to -- I mean, are we done? To respond to --

I think we already did put on the record but

maybe to reiterate to close this loop -- I

think that we all felt that it was Toby's

position that he communicated at the

stakeholder's meetings that we did not have

enough economic information available and we

would hope that in these proceedings more

information would be brought forward that

would help the Board in making its decision.

That was his opinion. That's what I recall

as his opinion.

MS. FRANZETTI: Okay, wait a minute.

I have got to ask you a couple questions on

that to make sure I understand it. Are you

saying that Toby Frevert told you that he had

said at the stakeholder meetings, he had told

the stakeholders that they hadn't submitted

adequate economic impact information?

MS. WILLIAMS: I'm not saying that he

told me that. I felt that that was

communicated publicly by him, and I heard it,

but I guess -- I can't quote him. I mean, do

132

you guys agree?

MR. SULSKI: The request for economic

information was put forth in the stakeholder

meetings in the stakeholder process. We need

dollars and cents on these now stressor

remedies that we've been discussing. That's

generally.

MS. FRANZETTI: And, Mr. Sulski, you

are referring to the CAWS, UAA stakeholder

meetings, correct?

MR. SULSKI: I am, yes.

MS. FRANZETTI: You didn't attend the

lower Des Plaines River?

MR. SULSKI: Just one perhaps.

MS. FRANZETTI: Yes, okay. I'll move

on.

I'm going to skip question 7.

Moving on to 8. Does the information, and

I'm going change this based on the testimony,

does the information contained in the January

3, 2005 Midwest Generation submission and the

March 2007 power point presentation

constitute the only economic information

concerning the estimated costs of technology

133

to control effluent temperatures that the

Illinois EPA obtained or reviewed in

connection with its preparation of the

proposed rules?

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

MS. FRANZETTI: You know, Mr. Twait, I

don't understand the answer. Is the Midwest

Gen economic information basically all the

Agency got or had? That's what I'm trying to

understand. Did you have other economic

information?

MR. TWAIT: Yes, I believe the only

economic information for thermal was from

Midwest Generation.

MS. FRANZETTI: Okay. Moving on to

Roman XII.

CHAIRMAN TIPSORD: Let's go ahead and

take a lunch break at this point. We'll come

back and finish up with Ms. Franzetti and

move on.

(At which point a lunch recess was

taken, after which the following

proceedings were had:)

134

CHAIRMAN TIPSORD: Back on the record.

MS. FRANZETTI: XII, Midwest

Alternative Standards. I'm going to propose

that questions 1 and 2 cannot be answered at

this time by the Agency because they are

based on the Agency having reviewed the

August 2007 Midwest Generation submission of

an alternative thermal standards proposal,

and I believe earlier today it was stated

that while that was received and while

Mr. Twait may have I think reviewed it, read

it, it came in too late to really be

considered by the Agency. Is that an

accurate summation of what the prior

testimony was?

MR. TWAIT: Yes.

MS. FRANZETTI: So let's jump to

No. 3. Please explain the Illinois EPA's

justification for encouraging biological

monitoring of water bodies effected by

anthropogenic discharges if the field data

are not accepted for use in establishing

water temperature criteria and standards.

ROY: When you refer to field data not

135

accepted, can I ask you to clarify that?

MR. ETTINGER: I guess there are a lot

of presumptions in here. Did they appear

somewhere? Did they encourage or where did

they not accept it?

MS. FRANZETTI: Let me break it down

and ask the Agency. Has the Agency in its

opinion encouraged by biological monitoring

of water bodies effected by anthropogenic

discharges?

MR. SMOGOR: Yes, we use and believe

that biological indicators are a useful

indicator when we are assessing attainment of

designated aquatic life uses throughout the

state.

MS. FRANZETTI: And then isn't it true

that the Agency did not use any of that field

data in establishing the proposed thermal

water quality standards that it has presented

to the Board?

MR. SMOGOR: I'd have to defer to

Scott. I don't think that was part of the

methodology that we chose, but I am not sure.

I'd have to defer to Scott.

136

MS. FRANZETTI: I agree, that's what I

think. Mr. Twait, any different answer to

that?

MR. TWAIT: If you are talking about

IBI scores, review of those -- are you

referring to that?

MS. FRANZETTI: How did you use the

IBI scores in developing the proposed thermal

standards?

MR. TWAIT: We've used that data to

determine whether fish are there or not, but

we have not used the IBI scores in this

proposal.

MS. FRANZETTI: Moving on to page

four. At page 156 Mr. Twait's pre-filed

testimony, it is acknowledged that "Fish can

tolerate short-term elevations in

temperature." Do the twenty or so years of

fish data collected in the upper Dresden pool

by ComEd and Midwest Gen support this

finding?

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

say that it either supports or doesn't

support this data. I don't know that the

137

studies that you conducted were to determine

whether they were short-term or long-term

avoidance. I don't know the answer.

MS. FRANZETTI: And, Mr. Twait, is

that due to the fact that you haven't really

been able to study that twenty years or so of

data with respect to this issue?

MR. TWAIT: I'm not a biologist, so I

would have to defer.

MR. SULSKI: The data was reviewed,

all that we have, and I think it is in the

record in terms of attachments and that, and

the data was used to assess current

conditions in the waterways. That's what it

was used for.

MS. FRANZETTI: And not to evaluate

whether or not fish can tolerate short-term

elevations in temperature?

MR. SULSKI: No.

MS. FRANZETTI: That's fine.

How does the Illinois EPA's

approach to driving thermal water quality

standards recognize or incorporate this

principle that fish can tolerate short-term

138

elevations in temperature?

MR. TWAIT: The Agency's proposal has

an exceedance period that the temperature,

the maximum temperature can be exceeded by

two degrees Celsius two percent of the time.

MS. FRANZETTI: And I don't know if

you can answer B, Mr. Twait, based on your

review of the Midwest Gen 2007 methodology or

proposed methodology, but I will ask you.

Does the Illinois EPA agree that the

methodology proposed by Midwest Gen for

deriving thermal water quality standards does

take this principal into account because it

is based on fish data collected in the upper

Dresden pool?

MR. TWAIT: I don't know if you can

say that there's short-term avoidance and

also say that there's no long-term avoidance

with the approach.

MS. FRANZETTI: And I'm sorry, but if

I may go back to yesterday and the two

questions where the Agency was asking me to

cite to where Mr. Rankin's report contained

the language that I had quoted, and before

139

the lunch hour I did give the Agency the page

of the report that contains the two subject

references. Has the Agency had an

opportunity to look at that page of the

report?

MR. SULSKI: Page 13?

MS. FRANZETTI: Well, my copy didn't

have -- the copy that came from the January

hearings --

MR. SMOGOR: We found the place and

rank in the report that you are talking

about. I think at least for question 8

there's a quote in one of your question 8's.

MS. WILLIAMS: Page 24, is that where

the question came from?

CHAIRMAN TIPSORD: And Rankin's report

is?

MS. FRANZETTI: Attachment R.

"Mr. Reinke also states that,

'Physical patterns in these watersheds are

very strong and will have a predominant

influence on the type of assemblages one

might expect.' Does the Illinois EPA agree

with Mr. Rankin's statement"?

140

MR. SMOGOR: I think as a general

characterization, yes.

MS. FRANZETTI: And then although the

Agency answered the question, which is

question No. 4 of that same section, it was

professing it wasn't sure whether or not the

meaning of "isolation" that my question was

implying was consistent with the way you read

Mr. Rankin's language in the report, so I

just -- now that you've had the language in

its context of the report -- my question is,

is your answer still the same to question 4

regarding, and I'll read it with respect to

the Brandon tailwater area, Mr. Rankin also

states in his report, attachment R that, "The

isolation of this site (among impounded

reaches) could influence the potential of

that site." And I asked whether the Agency

agreed that the isolation of the Brandon

tailwater area reduces its potential as

available good habitat for aquatic life in

the upper Dresden pool?

MR. SULSKI: Well, his statement says

it could influence the potential. It doesn't

141

definitively say it will influence the

potential.

MR. SMOGOR: We're interpreting that

as a general observation being made by

Mr. Rankin given his level of knowledge of

the surrounding area. So we accept that as

kind of a general impression, his general

impressions of the area.

MS. FRANZETTI: Okay.

That is all the questions I have.

CHAIRMAN TIPSORD: Pre-filed?

MS. FRANZETTI: Pre-filed. And I

would generally, as has been done by others,

reserve the right based on more complete

review of the Agency's filings last week to

ask some additional questions.

CHAIRMAN TIPSORD: Absolutely. It

would be my intent that at the next hearing

when we finish with all the pre-filed

questions, we'll go back to anybody that has

questions on the materials more recently

filed. With that, we go to Flint Hills. Do

you want to exchange places?

MR. SAFLEY: Flint Hills' questions

142

are pretty short, at least in numbers. I'm

okay in staying where I am. I think whoever

is next after me has more questions, so I

don't know.

Tom Safley on behalf of Flint

Hills Resources, and as I stated we have a

limited number of questions.

In starting, on the first page of

our questions, Regulatory Background, that

question has been asked and answered.

At the top of the second page,

Study Methodology, that question has been

asked and answered.

So moving on to the third

question, which is in the middle of page two,

Mixing Zones, some of the dischargers

potentially effected by the proposed rule

making are located downstream from large

dischargers with established mixing zones per

regulations under 35IAC 302.102. Will the

Agency clarify if and how mixing zone

designations will be established for

dischargers who currently may be in the

footprint of another discharger's zone?

143

MR. TWAIT: I'm just looking for a

particular section here.

Basically this comes down to two

particular points under 302.102, and one

would be "No mixing zone can be larger than

26 acres." And that would be 302.102(b)(12)

in our regulations. And the other mixing

zone requirement under 302.102(b)(7) states

that, "The area and volume in which mixing

occurs alone or in combination with other

areas and volumes of mixing must not" --

that's not the one I want. It would be

302.102(b)(8) "The area and volume in which

mixing occurs alone or in combination of

other areas of volumes of mixing must not

contain 25 percent of the cross sectional

area or volume or flow of a stream, except

where those streams where the dilution ratio

is less than three to one."

So basically what that says is,

alone or in combination with the mixing zones

they can't use up more than 25 percent

received.

MR. SAFLEY: If you had -- and

144

obviously the regulation you just read

contemplates overlapping or commingled mixing

zones. Would compliance for purposes of both

dischargers in that circumstance then be

measured at the edge of the total mixing zone

each taking into account --

MR. TWAIT: Yes.

MR. SAFLEY: And the Agency doesn't

intend to change that approach with the new

rules at all?

MR. TWAIT: Not that I am aware of.

MR. SAFLEY: Moving on to our next

question, "Narrative Water Quality

Standards." Narrative standards exist in

35IlAd302.210(f) for general use waters. Is

it the Agency's intention to incorporate this

substantial set of narrative standards into

the proposed lower Des Plaines River

standards?

MR. TWAIT: The answer would be, yes,

the Agency included that in its proposal.

MR. SAFLEY: And can you point me to

the proposed regulatory provision that

includes that?

145

MR. TWAIT: It would be 302.410.

MR. SAFLEY: But the Agency is not

proposing any corresponding change in

302.210; is that correct?

MS. WILLIAMS: 302.210 is?

MR. SAFLEY: General use.

MS. WILLIAMS: General use?

MR. SAFLEY: So the Agency doesn't

feel that -- well, I guess I should maybe

phrase it a little bit differently. Strike

that last one. Let me flip here.

I think the base, the reason for

this question just to try to explain what the

concern was, the proposed 302.410 like

302.210 references provisions in subpart F of

part 302, procedures for determining water

quality criteria, but the Agency has not

proposed any changes to subpart F. And for

example, the first provision of subpart F

302.601 Scope and Applicability states, "This

subpart contains the procedures for

determining water quality criteria set in

302.210(A), (B) and (C) but the Agency did

not propose to revise that section. And,

146

again, we obviously can read the proposed

302.410, but in trying to follow all the

rules through and understand how they are all

going to apply and not seeing the

corresponding change in subpart F, I just

want to make sure we were understanding the

Agency's proposal.

MS. WILLIAMS: Right. It would

probably be most correct to also open that

section and cross reference this as well, but

we did not propose to do that.

MR. SAFLEY: So the Agency is

proposing to subpart F to these waters in the

same way subpart F currently applies to

general use waters?

MR. TWAIT: Yes, that was the intent.

MS. FRANZETTI: That includes aquatic

life Use B waters as well?

MR. TWAIT: Yes, I believe there's no

differentiation.

MR. FORT: And that includes even the

poor to very poor habitat waters within Use

B, correct?

MR. TWAIT: Yes.

147

MR. SAFLEY: The next question, and

still in this section that was pre-filed by

Flint Hills, did the Agency evaluate the

economic reasonableness and technical

feasibility while incorporating these

narrative standards into the proposed lower

Des Plaines River standards?

MR. TWAIT: No, the Agency did not

look at economical reasonableness and

technical feasibility. However, I will point

out that it is replacing a narrative standard

that's existing, and in some instances that

narrative standard is based upon one half of

a 96-hour median tolerance, 96 hours TLM for

native fish for essential fish food

organisms. And in some cases that is more

stringent than what we've proposed, although

not in all cases.

MR. SAFLEY: What was going to be my

next --

MR. TWAIT: What we have proposed is a

more up to date way to determine the toxic

effects to aquatic life.

MR. SAFLEY: And you've anticipated my

148

next question, which is, is the Agency's

understanding that its proposal to

incorporate subpart F is more or less

stringent than the provision that's being

replaced and perhaps you need to break that

down by parameter but --

MR. TWAIT: I do not have those in

front of me.

MR. SAFLEY: Okay. But it's your

understanding that in some cases it may be

more stringent and some cases it may be less

stringent?

MR. TWAIT: My recollection that is

true.

MR. SAFLEY: Moving on then to our

next question which is entitled

"Disinfection."

The proposed bacteria standard may

require dischargers to disinfect effluence.

Did the Agency evaluate the economic

reasonableness and technical feasibility of

incorporating the proposed disinfection

standard into the proposed lower Des Plaines

River standards?

149

MR. TWAIT: We have not proposed a

bacteria standard as a water quality

standard. We just went with an effluent

standard.

MR. SAFLEY: And that's a fair point.

The Agency is not proposing it to incorporate

it into the lower Des Plaines water quality

standards. So my question should have been

phrased differently. Did the Agency evaluate

the economic reasonableness or technical

feasibility of the application of the

proposed effluent standard to dischargers in

the lower Des Plaines?

MR. TWAIT: There are lots of

facilities throughout the state that

disinfect. The Agency did not do an economic

reasonableness and technical feasibility, but

we believe that it's technically feasible and

economically reasonable because it's done

throughout the state.

MR. SAFLEY: And we've discussed that

issue, Mr. Twait, to some extent in January,

and I don't want to make you go over that

again. But just so we're clear here, the

150

discussion that we had during the last set of

hearings on the Agency's view that certain

technologies exist and are used throughout

the state, that was the extent of the

Agency's review of technical feasibility and

economic reasonableness for the application

of the disinfection effluent standards to the

lower Des Plaines?

MR. TWAIT: Yes.

MR. SAFLEY: Thank you. To the top of

page three of our pre-filed questions titled

"Chloride."

Industrial storm water outfalls to

the subject waterways may include all site

areas where the discharger does not have

control over common activities that result in

the discharge of high concentrations of

Chloride. Such as application of road salt

that may impair the waterway for chloride.

Does the Agency intend to apply the proposed

chloride standard to dischargers of storm

water?

MR. TWAIT: I believe the answer to

that is no.

151

MR. SAFLEY: Is that made clear in the

regulatory language proposed by the Agency,

and if so, could you point me to that

statement?

MS. WILLIAMS: I guess I would say

generally the way that -- generally storm

water is regulated through best management

practices, not through specific numeric

effluent limits so that would be the answer

to our no there. Does that help?

MR. SAFLEY: Sure.

MS. WILLIAMS: So I wouldn't say

unregulated, but not regulated through a

numeric number which is not reflected

directly in this standard or any other

standard.

MR. SULSKI: Can I add that in some

cases there are effluent technology, effluent

limits for chloride that actually do apply to

storm waters from certain industrial

activities so that may apply. I don't know

where right at the moment, but I wanted to

let you know that.

MR. SAFLEY: Thank you. And I'm going

152

to strike the first half of the final

question here and just begin after the comma.

Did the Agency evaluate the economic

reasonableness and technical feasibility of

incorporating its proposed chloride standard

into the proposed lower Des Plaines River

standards?

MR. TWAIT: The answer to that would

be no --

MR. SAFLEY: Sorry, I didn't mean to

interrupt. Those are all our pre-filed

questions.

CHAIRMAN TIPSORD: We are ready to

move to Citgo.

MR. FORT: I am going to start with

our temperature questions because that at

least will get most of the temperature things

closer to Ms. Franzetti's questions. I think

I've taken out everything that has been asked

and answered, and I've tried to pair down to

things that I don't think have been covered,

but obviously if you think I'm beating

something a second time, let me know.

CHAIRMAN TIPSORD: Absolutely.

153

MR. FORT: I'm going to be cautiously

optimistic here that I'm going to finish all

of my questions before we're even close to

being done today.

CHAIRMAN TIPSORD: Cool. So you are

going to start on page 9 of your pre-filed

questions?

MR. FORT: Actually I'm going to start

with Roman IV, but the first question that I

think hasn't been asked is number three on

the top of page 10, so I'm going to start

there and I will skip down.

I have divided these by general

versus individual testimony, but I think

whichever is the right Agency witness is fine

with me.

First question, No. 3, has the

Agency --

MR. TWAIT: Could you hold on, please.

MR. FORT: Has the Agency considered

that biological treatment facilities even at

industrial waste water treatment plants need

to provide heat in the winter months to

achieve nitrification?

154

MR. TWAIT: When we made the proposal,

I don't think that the Agency even considered

that.

MR. FORT: Is the Agency proposing now

that such plants will need to have cooling

towers, particularly in the winter months or

nonsummer months?

MR. TWAIT: Whether or not they will

need cooling towers, I don't know, but they

will need to meet the water quality

standards.

MR. FORT: So if it entails cooling

towers to be used in the fall or in the

spring to get to down to your period average,

that's what the Agency is proposing?

MR. TWAIT: That would be the

proposal, yes.

MR. SULSKI: Can I add to that? Just

to clarify, I don't know any municipal waste

water treatment plant that heats up the water

to accomplish nitrification. They do it

through the winter.

MR. FORT: My client Citgo does do

nitrification and it does have to provide

155

heat and it includes some of the time periods

and your period average is actually going to

be a problem.

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

don't really feel -- this is the first I knew

of this. I don't think there's information

in the record about your client adding heat.

I guess I would --

CHAIRMAN TIPSORD: I assume you are

going to provide that information at a later

date?

MR. FORT: Oh, yes.

MR. SAFLEY: Same would apply to Exxon

Mobil.

MR. FORT: Some of your colleagues

know that, and it didn't get into this rule

making yet.

MR. SULSKI: I just needed to make

that clarification on municipal waste water

treatment plants, which is what we had been

getting information on.

MR. FORT: You didn't look at the

industrial sources that would be providing

nitrification pursuant to Illinois

156

regulations?

MR. SULSKI: You are asking me if I

did or didn't? I didn't receive any

information at the stakeholder's meetings

that that was an issue.

MR. FORT: And you did not investigate

it on your own?

MR. SULSKI: I didn't know it was an

item that needed investigation.

MR. FORT: In light of the uses of the

Chicago Sanitary and Ship Canal, what is the

basis and the technical feasibility and

economic reasonableness for including "period

average" temperature as a water quality

standard?

MR. TWAIT: That is based on the

methodology of the technical person that

wrote the MBI report.

MR. FORT: So that was a water quality

based approach. You did not consider

technical feasibility or economic

reasonableness in making that proposal.

MR. TWAIT: Other than the fact that

cooling towers are a technology that have

157

been used throughout the state.

MR. FORT: You did not look at any

particular costs or particular scenarios

other than the general notion there might,

that cooling towers might apply?

MR. TWAIT: That is correct.

MR. FORT: Well, in light of the poor

biological conditions such as we have talked

about the Chicago Sanitary and Ship Canal

what is the basis and technical feasibility

and economic reasonableness for including the

proposed temperature standards?

MR. TWAIT: To protect aquatic life.

MR. FORT: Assuming that aquatic life

is there.

MR. TWAIT: I think that we know that

aquatic life is there.

MR. FORT: Does the Agency have any

particular -- I'm jumping now to No. 11 --

does the Agency have any plan for achieving

the proposed temperature conditions other

than the possible shut down of the Midwest

Generation plant as suggested in the

Statement of Reasons?

158

MS. FRANZETTI: Just for the record,

Midwest Gen would object to the shut down of

its plants, less our silence be taken for

acquiescence.

MR. TWAIT: I think the plan would be

to achieve compliance with the proposed water

quality standards.

MR. FORT: So you don't have a

particular strategy on how to get to this

temperature standard you are proposing?

MR. TWAIT: No.

MR. FORT: It struck me and you

mentioned earlier, Mr. Twait, about a hundred

degrees being too hot for aquatic life. Do

you think that that the 93 degree temperature

standard presently for secondary contact to

be attained to be obtained 95 percent of the

time is also too hot?

MR. TWAIT: In respect that we've

proposed 90 degrees or 90.3 degrees for 98

percent of the time, then yes.

MR. FORT: What's the basis for doing

it 2 percent versus 5 percent?

MR. TWAIT: As I mentioned before, it

159

was a number that the Agency chose that was

somewhere between the general use of 1

percent and the secondary contact of

5 percent.

MR. FORT: In terms of the difference

between 93 degrees and 90.3 degrees for your

daily max, what fish species are impacted by

that difference in temperature, if any?

MR. FORT: I'm going to refer to page

11.

MR. SULSKI: Of what?

MR. TWAIT: I'm going to refer to page

11 of the pre-filed testimony of Chris Yoder.

In there he has the statement, "The long-term

survival values along with 50 percent of the

representative aquatic species on my

secondary contact RAS list would be protected

by a standard of 93 degrees Farenheit."

MR. FORT: So 50 percent of the

long-term criteria would be protected at 93

degrees?

MR. TWAIT: And that would be of the

eight species that we're using.

MR. FORT: Okay, thank you.

160

Mr. Twait, now I'm going to go back to how

much heat are you trying to get out of the

shipping canal. I don't know how to equate

heat into gallons or things like that. I'm

sure there is a physical way. But does the

Agency have factual information or some

general estimate of how many heat therms or

whatever the unit is, joules -- J-O-U-L-E-S,

I think it is -- are required to get out of

the Sanitary and Ship Canal or the lower

Des Plaines River for that matter in order to

meet this standard that you've proposed?

MR. TWAIT: No.

MR. FORT: It would seem to me that

the numbers is probably pretty big; would you

agree?

MR. TWAIT: Possibly.

MR. FORT: Well, to get down from 93

degrees just to 90.3, for example, 2.7

degrees Farenheit, multiply it and then times

the millions of gallons of water in the Ship

Canal so that would give you some notion of

how heat you've got to get out?

MR. ETTINGER: What do you mean, got

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to out?

MR. FORT: To meet the standard.

MR. ETTINGER: In comparison with the

existing condition? The temperature is not

always 93 now.

MR. FORT: I accept that modification.

So theoretical first.

MR. TWAIT: The Agency has not

calculated that.

MR. FORT: How about the actual

conditions over the last several years say or

some period of time how much of a reduction

is going to be required?

MR. TWAIT: It would all depend on

where you are at.

MR. FORT: Can you elaborate on that?

MR. TWAIT: As I mentioned before, the

nonsummer periods were based on a background

of Route 83. So if you were right at Route

83, the nonsummer months, I believe you would

not need to remove any "heat" because they

are based on the background temperatures.

MR. FORT: We'll get into that, but

I'm not sure that's a safe assumption. We're

162

seeing higher levels which is why we're here

and we're certainly glad to share that with

the Agency. Thank you.

Going back to No. 12, are the

proposed temperature standards attainable

given the current uses of the Ship Canal and

Brandon pool?

MS. WILLIAMS: Can you clarify, are

you talking about aquatic life uses here or

industrial uses or recreational uses?

MR. FORT: Well, the use of the Ship

Canal and Brandon pool have been

well-documented by the Agency, so that's my

frame of reference here. Are they attainable

given the current uses?

CHAIRMAN TIPSORD: Mr. Fort, I think

for point of clarification, when you use

"uses" there are you referring to aquatic

life uses or you mean as it is "used for

effluent"?

MR. FORT: I had in mind the former,

more the technical as opposed to the

commonplace terminology.

CHAIRMAN TIPSORD: Thank you. I think

163

that was where the confusion was coming from.

MR. SULSKI: May I ask a question of

clarification. Is attainable in the sentence

misplaced too? Because when we talk about

attainable, we're talking about uses. Can we

move that? If we move that word over to

attainable uses?

MR. FORT: No, this is a regulatory

test of whether it's technically feasible and

economically reasonable, that's the content

of "attainable" as I intended.

CHAIRMAN TIPSORD: Are the temperature

standards attainable, the proposed

temperature standards attainable?

MR. TWAIT: I think they are

attainable with modifications to dischargers.

MR. FORT: And what are those

modifications for dischargers?

MR. TWAIT: Cooling towers would come

to mind.

MR. FORT: Okay. Anything else?

MR. TWAIT: Depending on the size of

the discharge, discharging into a cooling

pond.

164

MR. FORT: No. 13, what investigations

has the Agency done for the technical

feasibility for the concept of period average

for the nonsummer months?

MS. WILLIAMS: Are you referring to

how it would be measured or whether it can be

met again? Can you clarify that?

MR. FORT: I'm asking any

investigations. If you've done none, it's

okay. I just want to know what the answer

is.

MR. TWAIT: I am not sure if you are

talking about the technical feasibility. I

am not sure how concept of period average --

are you talking about technical feasibility

for measuring the period average?

MR. FORT: No, this is really more in

the context of is that attainable and usable

and can be done.

MR. TWAIT: I don't know that the

Agency has done any investigations.

MR. FORT: Thank you. No. 15, beyond

what the Agency has suggested for Midwest

Generation, what is the technical feasibility

165

and economic reasonableness for any

discharger to meet the proposed temperature

standards? Maybe you already answered that a

few minutes ago. If you think you already

answered that, I'm fine.

MR. TWAIT: Which one is that?

MR. FORT: I'm sorry, No. 15.

MR. TWAIT: Yes, I think we just

mentioned cooling towers and cooling ponds.

MR. FORT: No. 16, what is the basis

for selecting a temperature proposal which is

100 percent protective and then adding a

safety factor?

MR. TWAIT: The temperature proposal

is one hundred percent protective of the

eight species that we chose. It does not

necessarily mean that it is one hundred

percent protective of everything that might

be there. And as to adding a safety factor,

I would just have to cite back -- I mean,

that's how our contractor -- that's how Chris

Yoder did his methodology.

MR. FORT: If you took away the safety

factor, do you know what the number would be

166

for the summer months for secondary contact

or Use B waters?

MR. TWAIT: No, I am not sure offhand.

MR. FORT: Top of the next page,

No. 17. Does the Agency expect -- we've had

a lot of testimony so far or a lot of

questions any way about mixing zones -- does

the Agency presently expect any special rules

on mixing zones to deal with temperature

issues?

MR. TWAIT: Are you talking about

overlapping mixing zones?

MR. FORT: Yes.

MR. TWAIT: As I mentioned previously,

they can't incorporate more than 25 percent

of the flow in combination.

MR. FORT: Well --

MR. TWAIT: Could you repeat the

question? I don't think I've answered the

question.

MR. FORT: Well, you've talked before

about the existing regs on mixing zones and

you've gone through that. My question is,

and it's a little bit different than the one

167

I've asked here. Does the Agency have any

expectation of any special rules on mixing

zoning issues dealing with the thermal

standard that you've proposed?

MR. TWAIT: We have not proposed any.

MR. FORT: And you haven't considered

any of those so far?

MR. TWAIT: Correct. I don't think

any of them have been brought up, either in

these proceedings or elsewhere.

MR. FORT: That was good timing. I'm

ready to skip over to page 12.

MR. ETTINGER: Could I just ask one

clarification. When you responded to

Mr. Fort's question regarding a safety

factor, what specific provision were you

talking about there?

MR. TWAIT: Chris Yoder used in

Exhibit 15 a safety factor, and I know one of

the safety factors that he used -- well, let

me find it. One of the safety factors that

he used is located on page 5 of Exhibit 15.

It would be No. 3, when they use a critical

thermal maximum, the CTM, based on the fast

168

heating method 0.5 to 1 degree Celsius per

hour with an appropriate adjustment, IEA 2

degree safety factor to account for the

inherent overestimation of lethality.

MR. ETTINGER: Is that what you had in

mind in answering Mr. Fort's question?

MR. TWAIT: Yes. I'm thinking there

was another safety factor, but I'll see if I

can find it.

MR. FORT: Anyway, Mr. Twait, you are

relying upon the safety factors that

Mr. Yoder included in his report?

CHAIRMAN TIPSORD: Dr. Girard?

MEMBER GIRARD: Let me ask one final

clarifying question on the mixing zoning

issue. So if we have two adjacent

dischargers, and the discharger upstream has

a mixing zone, but that mixing zone extends

downstream past the outfall of the second

discharger and at that point it's taking up

about ten percent of the volume, that means

the second discharger mixing zone can take up

only 15 percent of the volume. So the

additive is 25 percent; is that what you are

169

saying?

MR. TWAIT: Yes, I think that would be

a good way to put it.

MEMBER GIRARD: So the second

discharger, the one downstream could not take

up 25 percent of the volume, so you have an

additive 35 percent?

MR. TWAIT: Correct.

MR. ETTINGER: Could I just request

after the break or something, I'm having a

hard time finding the safety factors here.

So if you could, if there is another one here

that you are referring to, maybe I could at

some point get you to add that. That's just

a request.

MR. FORT: At the risk of asking one

last question on the mixing zone --

MS. WILLIAMS: Let's see if we can

answer that one.

MR. TWAIT: I will look for the safety

factor to see if he mentions it anywhere else

in his report, but basically it's -- since I

can't find it offhand, I may just have to

read the whole report again or wait until I

170

get back to the office and do a search for

it.

MR. ETTINGER: Fine.

MR. FORT: Thank you. I have just one

other question, and this probably isn't an

overlapping mixing zone question, but if the

temperature in the stream, even if it does

not have a mixing zone that's overlapping and

even if there's not another thermal point

source -- and I am thinking of our facility

which is down gradient from Route 83 and

there are no other major thermal sources, the

temperature is still over the standard, that

means Citgo would not have a mixing zone,

correct, as the rules are proposed here?

MR. TWAIT: In reference to mixing

zones, that would be correct.

MR. FORT: Thank you. I think I

have -- I'm going to try to move on. I've

got one question maybe left on temperature,

but I think to expedite this, maybe I can get

through the rest of them and look at a break

and see if I have anything left.

CHAIRMAN TIPSORD: Excuse me,

171

Mr. Dimond has a follow-up question.

MR. Dimond: I have a follow-up on

Mr. Fort's last question. Let's use some

arbitrary numbers to help talk about it.

Suppose the water quality standard for a

particular body of water is 70, and the water

immediately upstream of the discharge point

is coming in pretty consistently at 75.

Yesterday you talked about a principle,

Mr. Twait, at least I thought you did, where

if somebody withdraws water from the stream,

they can discharge it back in and if they are

withdrawing 75 degree water, if they

discharge 75 degree water, they are deemed

not to be in noncompliance because even

though their discharge is greater than the

standard, they haven't added anything to it;

was that a correct summation of your

testimony?

MR. TWAIT: If you are withdrawing 75

degree water and not adding heat and then

turning around and discharging the same water

without a heat addition, then yes.

MR. Dimond: So assume the same

172

situation a standard of 70, the temperature

in the water body immediately upstream is 75,

but now you have a got a discharger who

doesn't withdraw from the stream, but let's

say they've got a ground water source that

they use for cooling water in their plant,

and they are going to -- but they discharge

to the stream, do they have to discharge at

70 or can they discharge at 75, which is the

ambient temperature in the stream?

MR. TWAIT: I think that in that case

they would have to discharge at 70 to meet

the water quality standard. The provisions

that I was talking about for facilities, for

somebody that's withdrawing water and not

adding heat to it and then discharging, there

are specific provisions in the NPDS permit

section that allow for that.

MR. Dimond: And are those in the

regulations or are they just sort of boiler

plate permit terms in the standard conditions

of the permit?

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

that.

173

MS. WILLIAMS: I believe it's in the

reg. I'm looking for the cite now.

MR. Dimond: That's all. Thank you.

MS. WILLIAMS: 304.103, Background

Concentrations.

MR. FORT: I'm going to move back to

some of the earlier questions that we had

pre-filed under our Roman II that goes to the

uses, but these got into specific water

quality materials, so therefore we haven't

asked them so far, or haven't asked some of

them so far. I'd like to start with question

4, but make some modification to it because

you've already answered the question about

the basis for proposing general use water

quality standards. And I'd like to rephrase

it to focus upon with respect to these

various parameters.

MR. TWAIT: Could you tell me where

you are at now?

MR. FORT: Page 4, question 4.

Mr. Twait, I'm going to modify the

question slightly because I think you've

answered this one. Since I know what the

174

answer is going to be there's no sense

wasting the time on that.

The question is this, in light of

the uses that you've established, and I'm

going to focus in on the Chicago Sanitary and

Ship Canal and lower Des Plaines River, the

Use B waters, probably just a subset of the

Use B waters but we'll leave it at Use B

waters for now. The question is, in light of

the uses of those waters to what extent are

the existing water quality standards for

secondary contact waters, not protecting

those Use B factors, and then I'd like to ask

you that question specifically about each of

the chemicals listed here?

MR. TWAIT: I'll start out by saying

that most of the secondary contact water

quality standards are based on effluent

standards, and they were never based on

protection of aquatic life. Arsenic is at

1 milligram per liter, which is not

protective of aquatic life.

MR. FORT: And that's based upon the

general water quality standards that need to

175

be done?

MR. TWAIT: No, that's based on the

national criteria document.

MR. FORT: Let me just short circuit

there because I'm confused when you say

something like that and then in the next

paragraph or next question, if you will, at

page 67 of the Statement of Reasons you have

the statement, "Toxic metals do not appear to

be a toxicity problem with the exception of

cadmium (just upstream of the Brandon Road

lock and damn depositional zone) page 67

Statement of Reasons."

MR. TWAIT: Yes.

MR. FORT: I'm having trouble

understanding how you made that statement

that toxic metals are not a problem from a

toxicity standpoint, yet you say that the

arsenic standard is not strong enough?

MR. TWAIT: Well, the difference there

is what is currently -- what concentrations

are currently in the water and what the water

quality standard is for that water. In this

case we've looked at data, and the data

176

indicates that if we adopt the national

criteria document which we've proposed, then

the waters as they exist now will meet the

national criteria document.

MR. FORT: The question was whether or

not the existing standards and the existing

conditions are protective of those same uses?

MR. TWAIT: I would say the existing

standard is not protective. However, the

existing conditions are protective.

MR. FORT: And that would be your

answer for the rest of these materials that

I've listed here? I know they are not all

metals but --

MR. TWAIT: Well, I think my answer is

correct. However, your question takes --

your restatement of -- your question was

referring to there not be a toxicity problem

with the exception of cadmium, and further on

in that statement it says, "In the 286-plus

mile deposition zone" or "286-plus just

upstream of the Brandon lock and damn

depositional zone." So that statement was

based on the sediment analysis that the

177

contractor did in attachment A on page 3-41.

MR. FORT: So your answer doesn't

change -- so your answer doesn't change for

these other chemicals that I listed here from

what you just testified to with respect to

arsenic?

MR. TWAIT: I believe that's accurate.

CHAIRMAN TIPSORD: For the record, I

know you are trying to save time, but the

pre-filed questions aren't in the record. So

I do think we need to point out it's arsenic,

cadmium, chromium, copper, cyanide, lead,

Mercury, Nickel, total residual chlorine,

Zinc, Benzene, Ethel Benzene, Tellurian and

Xylene.

MR. FORT: Thank you.

CHAIRMAN TIPSORD: As an undergrad I

couldn't have done that.

MR. FORT: If I can, I'd like to move

on to question No. 6, which is, "In light of

the fishing, from the lack of fishing from

the Chicago Sanitary and Ship Canal -- and

just stay with the Canal -- as reflected for

Use B findings, what is the basis for

178

limiting Mercury and Benzine based on "fish

consumption" and establishing the standard as

"exactly the same as existing general use

standards?" That's pages 72 and 73 of the

Statement of Reasons.

MS. WILLIAMS: I have this crossed

off.

CHAIRMAN TIPSORD: We initially

crossed it off, but we agreed we could come

back too it. I have it highlighted in pink

which indicates we'd come back to it.

MR. FORT: I think that's a question

that you said it was too specific so we'll

get back to that later.

CHAIRMAN TIPSORD: I think it was with

Mr. Yoder too and some of that stuff.

MR. TWAIT: We have Mercury and

Benzine that are based on fish consumption.

We believe that fish can migrate either

upstream or downstream to places where

fishing is practiced.

MR. FORT: Well, in terms of

downstream from the Chicago Sanitary and Ship

Canal segment that we've been talking about,

179

we have both the invasive species barrier and

the Lockport lock and damn.

MR. TWAIT: Fish can move through

locks, although I will grant that they should

not be able to go through fish barriers.

MR. FORT: Assuming that the fish

barrier is working, which we all hope it is,

then what's the basis then for applying this

regulatory criteria to the Chicago sanitary

and Ship Canal as a water quality standard?

MR. TWAIT: Since the fish could move

upstream either into the Cal Sag Channel or

farther upstream.

MR. FORT: So it's really for the

fishing in the Cal Sag Channel and the

Chicago River upstream of the Chicago

Sanitary and Ship Canal?

MR. TWAIT: Yes.

MR. FORT: And how much fishing is

that?

MR. SULSKI: Wherever anybody wants to

fish, including the Des Plaines River.

MR. FORT: Well, the Des Plaines River

though is on the other side of the invasive

180

barrier, so we are back to that part. I'm

asking how this relates to, this

justification relates to the Chicago Sanitary

and Ship Canal?

MR. SULSKI: I'm sorry, I thought you

were talking about the lower Des Plaines

River Brandon pool and the Sanitary Ship

Canal.

MR. FORT: No, I'm keeping it up

gradient of the invasive species barrier.

MR. TWAIT: The answer to that is they

don't have to move. There's nothing stopping

people from fishing in the Sanitary and

Shipping Canal.

MR. FORT: Well, are we basing the

standards on what people might do or based

upon what the designated uses are?

MR. TWAIT: The designated uses are --

MR. FORT: Remember the designated

uses here from a recreational standpoint are

noncontact.

MR. ESSIG: I believe it protects the

fish statewide.

CHAIRMAN TIPSORD: I am sorry,

181

Mr. Essig, didn't hear you.

MR. ESSIG: I believe the fishing

consumption advisories that we have are

statewide and effect all the waters for human

health. I think that's why this is

applicable here, in addition to what Scott

said about the fish being able to migrate up

the Cal Sag.

MR. FORT: So the justification for

applying or proposing that the special rules

on Mercury and Benzine is that we do it every

place else in the state, and we're not really

paying attention to what the uses that we've

designated the Chicago Sanitary and Ship

Canal are for?

MR. SULSKI: Well, this question did

come up before, and I remember that there was

a follow-up question, and the follow-up

question was, do fish swim?

MR. FORT: And then my question is, do

they swim through the invasive species

barrier?

MR. SULSKI: Well, they are not

supposed to. He answered that question.

182

MR. FORT: Well, we are basing this on

what might happen, someday, somehow somebody

or is this based upon an orderly process of

saying here is the state resources, here is

how we're going to manage them, here is how

we are going to protect the environment.

MR. SULSKI: We also had the testimony

of the fatalities of having boats in the

wrong place in the Ship Canal or even in the

lower Des Plaines or the upper Brandon pool.

I think maybe I just should go on.

Number 9. In light of the Agency

recommendation to dissolve oxygen for the

Chicago Sanitary and Ship Canal waters allow

a daily minimum of 3.5 milligrams per liter

and a seven day mean of daily minimum of 4.0

milligrams per liter -- let me skip down --

will these DO levels have an effect on the

limited aquatic life in the Chicago Sanitary

and Ship Canal before any effect from the

other pollutants for which water quality

standards are proposed?

MR. SMOGOR: I don't know.

MR. ETTINGER: I guess I have a

183

follow-up question. These standards are set

so that the life there won't be effected; is

that correct?

MR. SULSKI: Correct.

MR. FORT: I thought that for the

dissolved oxygen, we were not protecting

early life stages with this dissolved oxygen

standard in the Chicago Sanitary and Ship

Canal?

MR. SMOGOR: My answer was based on --

I assumed you were asking will not meeting

these standards have an effect. Was that the

intent of your question? I may have

misunderstood your question.

MR. FORT: Let me go back and clarify.

MR. SMOGOR: Sorry.

MR. FORT: That's quite all right.

The question is, given the decisions to have

a dissolved oxygen standard of 3.5 milligrams

per liter, and I believe the testimony was

that's not protective of early life stages,

but the question is assuming you are still

within the 3.5 milligrams per liter of

dissolved oxygen, will that have an effect on

184

species that you are trying to protect with

the general chemical standards?

MR. SMOGOR: We believe that the

dissolved oxygen criteria that we set for

those waters will adequately protect for the

proposed aquatic life use for those waters.

MR. FORT: But you are not trying to

protect early life stages in that process?

MR. SMOGOR: The intent is not to

protect all the early life stages, right.

MR. FORT: And do you -- well, never

mind. Thank you.

I think the next one that we

haven't done is over on page 7, and this is

question No. 21.

MR. SULSKI: Page 7?

MR. FORT: Yes. Actually, I think we

just covered No. 21 now that I look at it.

Good clarification there, I guess.

CHAIRMAN TIPSORD: Good thinking

ahead.

MR. FORT: But No. 22 though, why

isn't the same consideration applied to other

parameters for which revised water quality

185

standards are being proposed for the Chicago

Sanitary and Ship Canal?

MR. TWAIT: When the Agency ran into a

parameter that we could remove sensitive life

species, the Agency did so. And in those

cases -- I can think of two cases where we

did -- and that was DO, ammonia. For the

other parameters, the national criteria do

not allow for or do not consider the

protection of early life stages for toxic

effects.

MR. FORT: What about the temperature

standard that you are proposing, did they

include early life stages as part of that

analysis?

MR. TWAIT: For the most part as Chris

Yoder testified, the adults are the most

sensitive, are more sensitive than the, I

believe they are called young of the year.

MR. FORT: But there are younger or

early life stages results included in the

data that you used to come up with the

proposed temperature standards, correct?

MS. WILLIAMS: Could you repeat that?

186

I don't think I heard it.

MR. FORT: Can you read it back?

(Record read.)

MS. WILLIAMS: Earlier than what? You

are saying older than young of year?

MR. FORT: I don't think it's that

difficult a question. Let's let the witness

answer it, and he can refine it if he needs

to.

MS. WILLIAMS: Do you understand?

MR. TWAIT: In Appendix Table Z1 of

Attachment 3 of Chris Yoder's pre-filed

testimony --

CHAIRMAN TIPSORD: Which is Exhibit

16.

MR. TWAIT: That data base does

include juveniles and young of the year data.

MR. FORT: Thank you.

MR. TWAIT: And egg and larva data

also.

MR. FORT: Thank you. Do you know if

all that of that data was included to come up

with the temperature standard or just a

187

subset of it?

MR. TWAIT: It was -- I think Chris

Yoder went through pretty well how he came up

with it. I believe for the most part because

adults were most sensitive, he ended up using

the data from the adults, but that does not

mean -- I am not going to try to say that he

didn't use data from young of the year or

larvae.

MR. FORT: Well, Mr. Yoder certainly

testified that he thought the juveniles were

less sensitive. I'm not sure everybody has

agreed with that, but that's not in the

record yet so I'll move on.

MR. ETTINGER: What? He testified,

but it's not in the record?

MR. FORT: No, no, the contrary view

is not in the record.

CHAIRMAN TIPSORD: The disagreement is

not in the record. Just for the record just

so everyone knows, the Board does not view

asides or statements made by attorneys, other

than Ms. Williams who has been sworn, as

sworn testimony or as evidence.

188

MR. FORT: Thank you. Moving on to

No. 26. With respect to the statement that

the U.S. EPA's national criteria documents

were significantly lacking for temperature

and bacteria, I believe this is Mr. Smogor's

testimony, page two, in lack of that, lack of

U.S. EPA guidance why did IEPA believe it was

necessary to propose new standards for

temperature?

MR. SMOGOR: Just for correction, I

don't think that was part of my testimony

because I don't think my testimony addressed

temperature and bacteria.

CHAIRMAN TIPSORD: It's under

Mr. Twait's testimony.

MR. FORT: It sounded like a Mr. Twait

statement but --

MR. SMOGOR: You were scaring me

there.

MR. TWAIT: I will first start out by

saying that no water quality standards for

bacteria are proposed. So that's an answer

to your question. And the reason that we

proposed temperature standards is because of

189

the thermal, the current thermal water

quality standards for secondary contact are

believed to be lethal.

MR. FORT: And you are talking about

the 100 degree part or are you also talking

about the 93.3, whatever that decimal point

is?

MR. TWAIT: I'll just say the current

standard.

MR. FORT: I think you testified that

earlier that Mr. Yoder concluded that 50

percent lethality at the existing secondary

contact water quality standard for 95 percent

of the time -- am I recalling your testimony

correctly?

MR. TWAIT: At 93 degrees, yes.

MR. FORT: Thank you. Moving on. I

hate to come back to a mixing zone question,

but No. 31 on the top of page 8.

Now the question deals with

excursions of the cad meum water quality

standard, and I believe you pointed out that

may be due to resuspension on of sediments or

something of that nature. Assuming that the

190

execution of the cadmium water quality

standard is due to resuspension of sediments,

does that mean that a discharger of cadmium

into that water body would not have a mixing

zone?

MR. TWAIT: Let me clear something up.

When we looked at cadmium the first time, the

first cut, we were using the national

criteria document, and the waterway could not

meet the national criteria document. And we

surmised it was because of sediment

resuspension. In our proposal we proposed to

base the cadmium standard on the general use

water quality standard. To my knowledge, the

cadmium standard that we've proposed which is

based on general use can be met in the

waterway.

MR. FORT: Well, indulge me then for a

hypothetical question. That due to

resuspension of sediments there is a

violation of cadmium standard even now as you

are proposing it. In that event, would that

mean that a discharger of cadmium into that

body of water not be eligible for a mixing

191

zone?

MR. TWAIT: If it was a one-time

event, then I don't believe the Agency would

look at that as problematic. If it got to

the point that it was happening for weeks out

of the year or that a lot of the monitoring,

then, yes, if the water quality standard was

not being met, we would not grant a mixing

zone.

MR. FORT: Okay, well let's move on to

chlorides then. And let's assume that

there's data that would say that a chloride

standard existing or as you've proposed is

exceeded for two weeks out of the year, and

it all happens to be associated with snow

melt. Is that a condition that the mixing

zone rule would prohibit a mixing zone

allowed for a discharger that has chlorides

in his discharge?

MS. WILLIAMS: Can you clarify whether

you've moved on to one of our pre-filed

questions under your next heading or are you

asking follow-up?

MR. FORT: This is a follow-up that

192

leads into the next question.

MR. TWAIT: At those times during the

snow melt when the water is being met for

chloride, I don't believe the Agency would

give a mixing zone for chloride.

MR. FORT: Limited to that period of

time?

MR. TWAIT: That is certainly

possible.

MR. FORT: And how will we know what

we should be planning or doing or managing if

it's an episode that isn't something that's

within a discharger's control?

MR. TWAIT: We could just determine

that that's for the winter season as a

possibility.

MR. FORT: So in other words, there

may be some room for negotiating and

discussion and coming up with something

that's practical?

MR. TWAIT: Yes.

MR. FORT: Okay, now I am moving on to

the questions for chlorides.

CHAIRMAN TIPSORD: You know what,

193

let's go ahead and take about a ten minute

break, and we'll come back about

3:00 o'clock.

(Brief recess taken, after which

the following proceedings were

had:)

CHAIRMAN TIPSORD: Back on the record.

MR. FORT: Thank you. I'm continuing

with the questions on chlorides. I'm on page

8 of our pre-filed questions, and let me just

start with No. 2 there. Was the Agency aware

that levels of chloride in the Chicago

Sanitary and Ship Canal already exceed 5

milligrams per liter during snow melt

conditions?

MR. TWAIT: Yes.

MR. FORT: And if so what's the

technical feasibility and economic

reasonableness to achieve the proposed

standard?

MR. TWAIT: The Agency plans to

continue to work with state and local

governments to mitigate the harm to aquatic

life from practices of road salt.

194

MR. FORT: Is there anything else that

the Agency has as a strategy on the chloride

issue?

MR. TWAIT: We are continuing to look

at the national criteria document and to see

if we have some room to make some adjustments

to our proposal.

MR. FORT: Are you aware of any

sources of chlorides in the Use B waters

other than snow melt run-off which would

cause chloride levels to exceed the proposed

500 milligrams per liter standard?

MR. TWAIT: When this rule making was

proposed, I was not aware of any. From my

understanding now, chlorides are discharged

by refineries in exceedance of 500 milligrams

per liter.

MR. FORT: But if any of those

discharges that you understand causing water

quality -- putting aside -- I'll withdraw the

question.

During times other than snow melt

run-off, are you aware of any other

exceedances of a proposed 500 milligram

195

standard for chlorides?

MR. TWAIT: I believe all the

exceedances that we've seen in our data can

be referenced back to snow melt.

MR. FORT: Thank you. What happens to

mixing zones of industrial discharges if the

500 milligram per liter standard for

chlorides were to be adopted in light of the

snow melt phenomenon and elevated chloride

levels?

MR. TWAIT: I think we've mentioned

this before, but mixing would not be allowed

during those times that the water quality

standards are exceeded.

MR. FORT: And do you have any ideas

on what kind of strategies might be able to

be employed to correlate exceedance due to

snow melt with regular industrial discharges?

MR. TWAIT: I believe Citgo was

looking at the feasibility of storing their

effluent for periods of time when the TDS in

the receiving stream was high, and their TDS

was high also. I don't know the feasibility

of that.

196

CHAIRMAN TIPSORD: TDS is total

dissolved solids?

MR. TWAIT: Yes.

MR. SULSKI: It's a major element and

chloride is a major element in TDS or it can

be.

MR. FORT: Well, we won't get into me

testifying about the feasibility of that, but

the Board has before it the feasibility that

talks about the difficulty in doing just

that.

Would there be any effect on zones

of initial dilution with respect to the 500

milligram per liter of chlorides?

MR. TWAIT: Chloride is a number one

standard, so the Agency applies mixing zones

to one number standards, and not zones of

initial dilution.

CHAIRMAN TIPSORD: Can I ask a

follow-up based on that, and this goes back

to a question Mr. Fort asked and maybe

perhaps I'm just not conceptualizing this.

It goes back to his question about the impact

of run-off on a mixing zone. If I have a

197

mixing zone and my effluent has 500

milligrams per liter of chloride and I have a

mixing zone that takes me under a bridge

that's been salted like it's been salted this

winter, are you saying that I lose that

mixing zone, if that salt results in the

water quality standard being above 500

milligrams per liter?

MR. TWAIT: I think there's one

misunderstanding here. You are saying that

your discharge is 500 milligrams per liter.

You don't need a mixing zone if you are

discharging 500 milligrams per liter.

However, if it was higher, 1000 milligrams

per liter, the Agency will look at the

receiving stream and if the receiving stream

is already violating the water quality

standard, we will not give a mixing zone.

CHAIRMAN TIPSORD: I understand that,

but my question is that -- so in other words,

if in March -- let's go to February -- you go

out and do tests and underneath that bridge

it's exceeding the water quality standard,

500 milligrams per liter, I can't have a

198

mixing zone?

MR. TWAIT: Generally, until this

chlorides and TDS issue came up, we would not

allow mixing zones at all for a receiving

stream that was exceeding the water quality

standard for copper or another parameter. If

we've got data that shows it's more than just

a once a year episode -- if it was happening

only once a year for a parameter to exceed

the water quality standard, the Agency would

probably not restrict your mixing zone. But

if it's something that is happening every

year for a period of time and we recognize

that, then we would not grant a mixing zone.

When the TDS and the chloride issue has come

forward, we are now looking at possibly just

allowing the mixing zone throughout the

remainder of the year and not have a mixing

zone when the water quality standard is

exceeded. That is not something that we've

normally done in the past.

CHAIRMAN TIPSORD: Okay, go ahead Mr.

Fort.

MR. FORT: Thank you. If the

199

levels -- instead of talking about the bridge

just down from the discharge -- let's talk

about the bridge above the discharge. And

let's say that the water intake, the levels

are above 500 hundred, and let's just say

it's 600 milligrams per liter, what is the

discharger allowed to discharge in that

scenario? I mean, is it 600 milligrams per

liter or is it 500 or do they get a mixing

zone because they didn't cause it in the

first place?

MR. TWAIT: Well, the way the Agency

currently does it, we would not give a mixing

zone. If a discharger was withdrawing water

out of the river and not adding chlorides and

then discharging it back into the river, then

it would be 600. If they were adding

chlorides, I believe they would have to

discharge at 500 milligrams per liter.

MR. FORT: And we are talking about

chlorides at any level, even if it were 100

milligrams per liter, almost literally table

salt quantity?

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

200

that.

MR. FORT: So there might be some de

minimus level that would make sense?

MR. TWAIT: I would have to refer back

to 304.103.

304.103, it does give a little bit

of room, and it states, "However, it is not

the intent of these regulations to require

users to clean up contamination caused

essentially by upstream sources or to require

treatment when only trace, when only traces

of contaminants are added to the background."

MR. FORT: In your experience do you

know what traces of contaminants means?

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

defined in there.

MR. FORT: Any examples come to mind

of how the Agency has applied traces of

contaminants?

MR. TWAIT: The permitting section

would have to answer that question to know

how it's been applied.

MR. FORT: Moving on then, question

No. 6, let me restate it because I think

201

you've touched on this. It is technically

feasible to control chloride run-off from

snow melt and surface transportation?

MR. TWAIT: Yes. The Agency is

currently working with stakeholders on the

west branch of the DuPage River to control

chloride run-off from snow melt. Also there

is a product out there that I'm told is three

times more expensive than chloride, and it's

called CMA. However CMA would have a BOD

component to it. So it's not something that

could be used widely without studying the

effects of the BOD component.

MR. SULSKI: We worked with O'Hare

airport for many years on alternative

de-icing too.

MR. FORT: I think I've covered 10.

11, if the chloride levels exceed 500

milligrams per liter, what's the formula to

calculate sulfates? I don't think there is a

formula proposed.

MR. TWAIT: There is not.

MR. FORT: So is there going to be a

formula? Are you taking the general use

202

formula?

MR. TWAIT: As I mentioned before, the

Agency is looking at -- well, no, strike

that.

Currently there is no equation for

determining the chloride standard when --

there's no equation for determining the

sulfate standard when chloride exceeds 500.

The Agency would use section 302.410 to set

water quality standards for any substance or

combination of substances that are not

specifically mentioned in the water quality

standards. This would probably involve

requiring the discharger to develop some type

of data for sulfate toxicity when chloride

levels are above 500.

MR. FORT: So even though we are

proposing to delete sulfate or modify

sulfate, it's going to come back in as some

special calculation because we're going to

have a chloride issue potentially?

MR. TWAIT: We're planning to

eliminate TDS by putting in chloride and

sulfate.

203

MR. FORT: So the formula you are

talking about though using 302.210 on sulfate

will come in on the existing sulfate formulas

that you proposed?

MR. TWAIT: The sulfate formulas we

proposed does not have an equation for when

sulfate is above 500. When the sulfate

standard was proposed for general use

standards, they did not look at the toxicity

of sulfate when chloride exceeded the water

quality standard.

CHAIRMAN TIPSORD: The Agency?

MR. TWAIT: The Agency did not look at

it.

MR. FORT: Moving on to No. 12. Has

the Agency evaluated the cost and effect of

the proposed chloride standards on any

dischargers other than you've mentioned

working with municipalities and cities in an

effort to reduce chloride run-off?

MR. TWAIT: No, we have not. Until I

read the pre-filed questions, I was not aware

of the discharger that would be exceeding the

chloride standard and would need mixing

204

zones.

MR. FORT: Moving on to No. 13.

Chloride --

MS. WILLIAMS: Did you say 15?

MR. FORT: 13. We didn't see any

discussion about chlorides in the UAA and the

proposal doesn't address any effect on the

region. Will the adoption of a chloride

standard result in no new road construction

because of the impaired water designation

that may follow from a chloride standard?

MR. SULSKI: I don't think so.

MR. FORT: Can you explain that?

MR. SULSKI: Stopping road

construction? That's outside of our

jurisdiction.

MR. FORT: And at the present point

you are not permitting road construction or

having any direct control on that activity?

MR. TWAIT: Correct.

MR. FORT: No. 14, will the chloride

standard result in more traffic accidents or

fatalities in the region due to the

requirement to reduce salt usage in inclement

205

weather?

MR. TWAIT: I don't believe the Agency

is going to propose that municipalities stop

using road salt. I believe that we can work

with them to make sure that best management

practices are implemented.

MR. FORT: You are expecting that the

BMP's will enable the chloride standard to be

met?

MR. TWAIT: I'm hopeful.

MR. FORT: How confident are you?

MR. TWAIT: As I said before, we're

looking into the national criteria document

to see what type of wiggle room. I mean,

we're trying to attack this issue from a

couple perspectives.

MR. FORT: Let me direct you to

No. 17. I think we've touched on the other

ones in between, and this goes back to sort

of the practicality of looking at water

quality standards and being able to know in

real time or quickly that anything has to be

done. Has the Agency given any thought to

the practicality of some sort of a period of

206

time, seasonal use cessation of activities or

reduction in chloride discharges, beyond the

BMP idea that we've talked about?

MR. TWAIT: The Agency has also talked

about the idea of giving mixing zones during

the times of the year that snow melt would

not be an issue. Other than that, no.

MR. FORT: Will discharge of sulfates

need to monitor chloride levels every day

during periods of snow smelt to determine

compliance?

MR. TWAIT: No. The Agency when it

writes a permit for dischargers of sulfate

will use the chloride levels along with the

hardness levels to determine the NPDS permit

limit for sulfate and the discharger will

only be required to meet the NPDS permit.

MR. FORT: How did the IEPA decide

that the major water quality constraints are

temperature in dissolved oxygen but not

chlorides?

MR. SULSKI: Well, when the

contractors initially screened the waterways

and we looked at subsequent data and compared

207

it against general use, chloride didn't pop

out very often. If it did, it was quite

rare. And then we really started to get into

the issue when we had to revisit the national

criteria.

MR. FORT: And simply now, just in

terms of the major water quality issues

because of your sampling you concluded that

toxicity of heavy metals and other parameters

were not a major problem in the streams now

either?

MR. SULSKI: When we reviewed the

existing data against our proposed standard,

chloride came up, cadmium was another one

that was mentioned. Scott can fill in. Were

there any others that started to become an

issue?

MR. TWAIT: I think that's it -- oh,

I'm sorry. Human health from Mercury would

be an issue. But we have that same issue

throughout the state -- oh, and PH.

MR. FORT: Does the Agency expect to

do anything different with the overlapping

mixing zone issue when it comes to chlorides

208

than it has for -- we've already talked about

for temperature or any other parameter?

MR. TWAIT: I don't know that the

Agency would take a different approach. We

would still have to follow the mixing zone

regulations.

MR. FORT: Thank you. I think I'm

done with chlorides.

MR. Dimond: Could I ask one follow-up

on chlorides?

MR. FORT: Sure.

MR. Dimond: Mr. Twait, what I didn't

quite understand about your testimony, you

talked about giving dischargers a mixing zone

during non-snow melt periods.

MR. TWAIT: Yes.

MR. Dimond: What about the snow melt

times? I mean, those are the times when one

would expect the chlorides to be even higher?

MR. TWAIT: Well, I understand that.

But our mixing zone regulations do not allow

mixing zones when the water quality standard

is exceeded.

MR. FORT: Mr. Twait, I have one left

209

on thermal. I hate to go back to thermal.

But page 14, it's question No. 59.

MS. WILLIAMS: Which number again, I'm

sorry?

MR. FORT: It's the middle of the page

on 14. Do you have it there?

The question is, since the Agency

acknowledges that thermal water quality

standards were quite challenging, would it be

prudent to further investigate and model

before spending considerable amounts to

attempt to change thermal characteristics

which may or may not succeed and which may or

may not bring about the intended results.

MR. TWAIT: I think the Agency has

spent a considerable amount of time with

thermal issues, and we've got a proposal that

protects aquatic life. So, no, I don't know

that it would be prudent to continue to wait.

MR. FORT: But you haven't proposed a

specific schedule for meeting these water

quality standards as I understand it?

MR. TWAIT: Correct.

MR. FORT: Okay. I'm going to skip

210

bacteria. I'm sure others will cover that

very thoroughly. I'm going to move to page

15, Roman VI, consideration of Section 27A

Factors. I think these are Mr. Sulski's

questions, but obviously anybody can answer.

The final paragraph of the

testimony, page 20, in Mr. Sulski's pre-filed

testimony references the economic

reasonableness of rule making proposals.

There is no reference here that we could find

or any exhibit to the economic reasonableness

of any of the Agency's proposals that they

would apply to Citgo patrolling corporation,

and its Lemont Refinery. Is there any that

you can point out in the testimony?

MR. SULSKI: No, we don't mention

Citgo Petroleum or the Lemont Refinery in the

pre-filed testimony or the Statement of

Reasons.

MS. WILLIAMS: Can I ask why not?

MR. SULSKI: Why not? Well, we went

through the UAA and the standards proposal

exercises in what we have here. We didn't

know that it would get, that Citgo would have

211

a problem with any of these, any of this

proposal.

MR. FORT: Well, we can cover that

with our testimony. We thought we had.

Obviously something didn't get communicated

so -- and there's nothing then in the

pre-filed exhibits in support of the petition

on the economic reasonableness as applied to

Citgo either, correct?

MS. WILLIAMS: Do you think there are

some documents we didn't submit that should

have been submitted?

MR. FORT: Can you please answer my

question first?

(Record read.)

MR. FORT: Can you point to any

statements in the petition -- I mean in the

Statement of Reasons -- describing economic

reasonableness of the proposed rules in any

fashion as they may apply to Citgo?

MR. SULSKI: I can't.

MR. FORT: Are there any attachments

that were submitted with the Statement of

Reasons that would have information on

212

economic reasonableness as applied to Citgo?

MR. SULSKI: Not that I know of.

MR. FORT: Are there any exhibits in

this proceeding before the Board that would

have information on economic reasonableness

as applied to Citgo?

MR. SULSKI: Not that I am aware of.

MR. FORT: And you would agree that

none of the Agency pre-filed testimony also

did not address economic reasonableness as

applied to Citgo, correct?

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

correct.

MS. DIERS: Can I ask a follow-up?

I'd like to ask Mr. Laskowski and Mr. Schlade

if they know if Mr. Sulski was an advisor of

the Citgo advisory committee?

MR. FORT: I'm going to object. We're

not trying to say that we gave you something

that you didn't put in. I think you've -- I

don't think what we did in the participation

in the advisory committees or whatever it was

is relevant. It's still something to be

before the Board.

213

CHAIRMAN TIPSORD: Again, I have to

disagree. We are still talking about the

economic thought process of the Agency, so

I'll let them answer the question.

MR. TWAIT: Yes, they were part of the

work group.

MS. DIERS: For lower Des Plaines?

MR. TWAIT: Yes, they did participate

in the lower Des Plaines UAA.

MR. SULSKI: I see that Matthew

Glickman was listed, and Bridgette Postal are

listed as participators at one time or

another in the CAWS UAA.

MR. FORT: And you don't know what the

topics that were on the table were being

discussed at anyone of those proceedings, do

you?

MR. SULSKI: I would have to go back

to the notes and which ones they participated

in.

CHAIRMAN TIPSORD: For the record, you

are looking at Attachment G for that

information?

MS. DIERS: And attachment F.

214

CHAIRMAN TIPSORD: We have also in the

record the minutes from the CAWS UAA

stakeholder Advisory Committee?

MR. SULSKI: Yes.

CHAIRMAN TIPSORD: And that's the

March 4th filing?

MS. DIERS: Correct, the stakeholders

minutes.

CHAIRMAN TIPSORD: Let's go ahead

since what happened with those is becoming

part of this record. Let's enter those as an

Exhibit. And I did speak to John Therialt

(phonetic) today. He is double checking. He

thinks what happened is because some of this

is two-sided, he didn't get that all scanned.

So we'll get that corrected. And it will be

on as Exhibit 6 for both the minutes from

lower Des Plaines and the CAWS.

MR. FORT: Exhibit 6?

CHAIRMAN TIPSORD: 36. If there's no

objection? Seeing none, it's marked as

Exhibit 36.

MS. DIERS: So just to get into what

the Hearing Officer was referring to, which

215

is information that went into the Agency's

analysis with regard to the economic

reasonableness of the rules, does anyone on

the panel recall whether Citgo presented any

information regarding problems they would

have complying with any parts of the

proposal?

MR. SULSKI: I don't recall any.

MR. TWAIT: I do not recall any

either.

MS. DIERS: That's all.

MR. FORT: Well, I'm not sure how

relevant it is to this proceeding, but I

think guess we'll figure it out when

Ms. Franzetti complains that stuff she was

given, wasn't even read, and we thought we

made comments, but anyway. It's not the

Board proceeding so I don't think it could be

equated.

However, let me go on to No. 3.

The Agency claims that the lower Des Plaines

and the Chicago Sanitary and Ship Canal in

particular receive discharges from a large

number of significant industrial facilities."

216

Reference to Statement of Reasons, page 103.

Does the Agency have any information for

industrial sources other than Midwest

Generation on the technical feasibility and

economic reasonableness of the proposed

changes for those industrial sources? And I

will just say parenthetically, assuming

innuendo, that it is that kind of stuff for

Midwest Generation.

MR. SULSKI: I guess the answer is no.

MR. FORT: Thank you.

Other than some information that's

presented in the Statement of Reasons on

Midwest Generation and the Metropolitan Water

Reclamation District of Greater Chicago, has

the Agency developed any information relating

to technical feasibility or economic

reasonableness on any of the dischargers

listed on Exhibit TT?

CHAIRMAN TIPSORD: Exhibit TT to the

proposal.

MR. FORT: Attachment TT.

CHAIRMAN TIPSORD: Attachment TT.

MR. TWAIT: I don't believe that any

217

other technical feasibility or economic

reasonableness has come in from any

discharger.

MR. FORT: And the Agency hasn't

developed it on its own?

MR. TWAIT: No.

MR. FORT: How will the dischargers to

the Chicago Sanitary and Ship Channel, and I

am only talking about the Chicago Sanitary

and Ship Canal here, be effected by the

proposed water quality standards,

particularly rule 302.407 and 302.410?

MR. TWAIT: They will be effected in

as much that they discharge parameters above

the water quality standard. The Agency would

look at the data and determine if a mixing

zone was available and put permit limits in

the NPS permit as appropriate.

MR. FORT: Aren't they going to have

to do more, such as do some of the analyses

called for in those proposed rules?

MS. DIERS: Can you explain what

analyses you are referring to?

MR. FORT: Whatever proposed 302.407

218

and 302.410 require.

MR. TWAIT: Usually the NPDS permit

will require sampling based on the type of

discharger. I don't know that the proposed

water quality standard will have that much of

an impact on -- I don't know how much of an

impact it would have on which parameters

would need to be monitored.

MR. SULSKI: Other than the

information that's required in the NPDS

permit application, I mean that's what you

would be required to submit.

MR. FORT: Well, isn't the

requirements of 302.410 new in terms at least

of the detail that it requires?

MR. TWAIT: No. 302.410 is changing

how derived criteria are derived.

MR. FORT: So isn't that an additional

requirement?

MR. TWAIT: That is not an additional

requirement on the discharger. That's an

additional requirement for the Agency. The

Agency will look at whatever data is

generated from the discharger, and we will

219

apply 302.410 to determine if a parameter

needs to be limited in the permit.

MR. SULSKI: That's no different than

an evaluation of a TLM 96 number, which is

the original secondary contact number.

MR. FORT: Well, aren't your

requirements here a lot more significant and

extensive than a 96 hour TLM?

MR. SULSKI: I would agree with that.

MR. FORT: It is more extensive?

MR. TWAIT: The requirements for

deriving the criteria are more extensive.

However, the Agency derives those criteria

and will apply them into a permit. The

dischargers do not -- they can -- but

typically they do not try to develop the

criteria on their own.

MR. FORT: So we're talking about

developing a criteria and discussing a

criteria I guess for acute aquatic toxicity

criteria, correct?

MR. TWAIT: And chronic, yes.

MR. FORT: And then we also look at

wild and domestic animal protection criteria?

220

MR. TWAIT: Yes.

MR. FORT: And how many of those wild

and domestic animals do you think are in the

presence of the Chicago Sanitary and Ship

Canal?

MR. TWAIT: We've got birds and stuff,

and ducks. I don't think we've got cats and

dogs going down and getting into the Sanitary

and Ship Canal to drink.

MR. SULSKI: We have a significant

number of black crow.

MR. FORT: Of which?

MR. SULSKI: They are a state and

Illinois endangered species.

MR. FORT: In the Chicago Sanitary and

Ship Canal?

MR. SULSKI: One of the highest

concentrations in the state.

MR. FORT: Gee, it must be doing well.

They better keep it all the same.

CHAIRMAN TIPSORD: Mr. Harley, did you

have a follow-up?

MR. HARLEY: On your map.

CHAIRMAN TIPSORD: Which map?

221

MR. HARLEY: I was about to describe

it. On the map in which you describe the

different UAA segments which are subject to

this rule making. Many of the areas on the

map are, on all three maps that you presented

are designated in green. What do the green

areas indicate on these maps?

CHAIRMAN TIPSORD: Excuse me, Mr.

Harley, you are looking at Exhibit 25?

MR. HARLEY: 25.

MR. SULSKI: What are the green areas

indicating?

MR. HARLEY: Yes.

MR. SULSKI: One of the green areas is

the Calumet River. Another green area is the

MR. HARLEY: So I am referring to the

land area.

MR. FORT: Excuse me, is this

clarification on my question?

CHAIRMAN TIPSORD: Yes, it is,

Mr. Fort. Go ahead, Mr. Harley.

MR. SULSKI: These are Forest Preserve

District properties and in some case they may

222

be nature preserves.

MR. HARLEY: Is it safe to say that so

many of these Forest Preserves District

properties are immediately adjacent to the

Chicago Sanitary and Ship Canal?

MR. SULSKI: Yes.

MR. HARLEY: Thank you.

MR. FORT: I stand corrected. Thank

you.

CHAIRMAN TIPSORD: I had a feeling

where he was going.

MR. FORT: Continuing on with the few

questions here on 302.410 and what's in this

rule or proposed rule, who is going to answer

the questions that I have about subparagraph

E, "The Agency derived criteria may be

challenged as follows:

MS. WILLIAMS: Where are you looking?

MR. FORT: I'm not looking at my

questions. I'm looking at the proposed rule.

MS. WILLIAMS: So you are going to ask

about -- I guess we need to hear the question

first and then we can tell you who can

answer.

223

MR. FORT: I'm looking at 302.410 (E)

as proposed, and these are ways of

challenging the criteria that Mr. Twait has

said the Agency is going to calculate. The

first subsection says it can be challenged,

I'm looking at the third line, "Only at the

time such criterion is first applied in an

NPDS permit, or in an action under Title 8 of

the Act for violation of the Toxicity Water

quality Standard. And continuing on it says,

"Failure of a person to challenge the

validity of a criterion at that time of its

first application as a waiver of such

challenge in subsequent proceeding involving

application of criterion to that person." Do

you see that?

MS. WILLIAMS: Yes.

MR. FORT: I'm wondering what is the

technical justification for that?

MR. TWAIT: I believe the technical

justification is if the Agency puts that into

an NPDS permit, that the permittee can

challenge that. However, five years or ten

years later they can't come back and

224

challenge it.

MR. FORT: Well, I understand that's

rephrasing what it says. This strikes me as

a very unusual term to say you've waived if

you don't challenge it the first time.

MS. WILLIAMS: So I think, I mean just

from the drafting -- I know you asked the

technical, you said the technical

justification, but I'm not sure it's a

technical requirement. We took this language

directly from what's in the general use. I

believe there's some discussion in the Board

opinion adopting that language about it, but

I'm not an expert in how it's been

interpreted. I'm not aware that it's ever --

this provision has ever been used. So if you

want more detail, we'd probably have to get

back to you on that.

MR. FORT: And the similar

justification is for the notion that one must

do rule making to change the criterion?

MS. WILLIAMS: Which section are you

looking at now?

MR. FORT: Well, let me withdraw that.

225

I'm sorry, so you placed the burden of proof

on the petitioner in subparagraph two to

demonstrate the criteria is not necessary?

MS. WILLIAMS: Yes, I believe that the

language that's in caps there is taken

directly from the statute. That's why it's

all in caps, if that helps.

MR. FORT: Going back to the pre-filed

questions -- actually, I think we've covered

everything else here. I mean, I can ask the

question a little bit differently, but I

think we've covered the substance of it.

I think I've concluded my

pre-filed questions. I reserve the

opportunity to ask further questions for

clarification or more information if it's

submitted by the Agency.

CHAIRMAN TIPSORD: Thank you,

Mr. Fort.

Mr. Harley?

MR. HARLEY: I have a very quick

follow-up question, but I didn't want to

break the line of questioning Mr. Fort was on

regarding the sanitary Ship Canal.

226

I wanted to turn your attention to

question 19 on page 9 of Mr. Fort's pre-filed

questions where he asks about Illinois EPA's

decision that major water quality constraints

are temperature and DO, and then inquires

about chlorides as well. And he was focusing

your attention to the Sanitary and Ship

Canal. I wanted to ask you this question on

the issue of chloride specifically. Are

there chloride impairments that exist in the

Calumets, that is the Calumet River, Grand

Cal, Little Cal, the Cal Sag Channel?

MR. ESSIG: I currently do not know

because we don't assess those waters through

the general use standards, except for the

north shore channel upstream of the MWRD,

north side plant, the Chicago River and the

Calumet River which are general use. I don't

believe -- I'd have to take a look but I

don't recall there being any chloride

violations within those waters.

MR. HARLEY: Because there's previous

testimony there are not temperature issues in

the Calumets, there are only short lived DO

227

issues in the Calumets, and your testimony is

that the chloride issue may not be

significant where it is measured; is that

correct?

MR. ESSIG: As far as I know. I'd

have to double check.

MR. HARLEY: I think my question is at

what point in time did the Calumets become an

example of good environmental quality?

That's it. Strike that.

CHAIRMAN TIPSORD: Okay, I think we

move on to Corn Products.

MR. SAFLEY: Madam Hearing Officer, we

would prefer not to start our questions at

4:00 o'clock on the last day of these three

days of hearing. We'd like to hold off.

We've got at least 15 pages of questions to

ask.

CHAIRMAN TIPSORD: I knew you were

going to say that.

MR. SAFLEY: With a five week break,

we just feel like it will make for a better

transcript and better questioning than if we

say, well, remember five weeks ago when you

228

answered the last question.

CHAIRMAN TIPSORD: I have looked ahead

and saw that Corn Products does have

substantial number of questions, and I'm not

sure there's anyone left. Environmental Law

and Policy center you would probably be the

next fewest.

MR. ETTINGER: I've got a few, why

don't I do them.

CHAIRMAN TIPSORD: If no one has

objection to moving them ahead, so we can use

this time.

MR. ETTINGER: Mine are cute and

little. I'll take notes on them.

CHAIRMAN TIPSORD: I don't know if we

can handle any more cute today.

MR. ETTINGER: I've only got three

questions left, and I hardly filed any.

MS. FRANZETTI: Are you looking for a

gold star for that?

MR. ETTINGER: I think I could be

compared favorably to some. However, some of

this has been touched upon earlier by

Franzetti's questioning, but some of these

229

although they are repetitive to some extent

they have a slightly different twist on them

that I do think we need to explore.

With regard to our question No. 1,

it says, "Regarding page 13 of the pre-filed

Twait testimony, where the MWRDGC treatment

plant temperatures used to set nonsummer

average temperatures for the upper Dresden

pool, instead of the route 83 temperatures?

If so, why?

MR. TWAIT: Yes, they were, and it was

basically because we believed that MWRDGC was

the river.

MR. ETTINGER: Did you ever look at

temperatures in the upper Dresden pool as

opposed to the Sanitary and Ship Canal for

setting the background temperatures?

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

any ambient stations that were not impacted

by a thermal source in the Dresden island

pool.

MR. ETTINGER: Well, did you, for

example, look at the intake temperatures at

the Joliet plants?

230

MR. TWAIT: No, I did not.

MR. ETTINGER: Going now to question

5. I think we've -- I'm going to ask the

beginning of the question, even though we've

covered that because it's necessary to set

the precedent for the second part of the

question, which I don't think we've covered.

No. 5, with regard to Twait testimony at page

15, "Was the biological justification for

allowing excursions up to two degrees

centigrade or -- well, it's wrong, 3.6

degrees Farenheit. Would this provision

allow temperatures above 93 degrees Farenheit

for seven straight days in the Dresden pool?"

It's only, it's the second part of that that

hasn't been answered. The first part has

been answered, but I needed to say that. So

could you just answer the second part here,

"Would this provision allow temperatures

above 93 degrees Farenheit for seven days

straight in the Dresden pool?"

MR. TWAIT: If all of the, 2 percent

of the hours were used all at one time, then

yes.

231

MR. ETTINGER: Going now to question

6. Were the temperatures that Chris Yoder

calculated as optimum growth, MWATT and

avoidance UAT used in any way in writing the

IEPA temperature proposals? If so how?

MR. TWAIT: I do not believe those

were used. We used short-term and long-term

survival.

MR. ETTINGER: I'm done.

CHAIRMAN TIPSORD: And I'm not sure

that anyone else had questions that we can

get finished in the next 40 minutes or so.

MS. WILLIAMS: Just so I'm clear, is

Exxon Mobil done?

CHAIRMAN TIPSORD: No, I do not

believe so.

MR. SAFLEY: We have some left, but I

prefer -- I think I'd be able to do it in a

lot more streamline basis if I had time to go

back over the transcripts, and I haven't been

able to do that in light of the questions

that were asked. There will still be some,

but --

CHAIRMAN TIPSORD: Just so we are

232

clear, we will start on April 23rd with Corn

Products International -- Chemical Industry

Counsel actually -- it was pre-filed? You

are done with your pre-file? I will take

Chemical 4 and District Counsel off then. We

will take Corn Products, then the District,

Stepan and Exxon Mobil is who we have left

with pre-filed questions. We will also go to

any questions of any of the materials that

were filed March 4th, and obviously any

additional follow-ups after you've had a

chance to look at transcripts and that sort

of thing. Dr. Girard and I have been

talking --

MS. FRANZETTI: Could I just, if this

is a good time for it, in going back through

the January hearing transcripts, there were

some items that Mr. Yoder was asked to

provide as to which he agreed to look for

them, and I think if he found them or could

figure it out, produce them, that have not

been produced.

CHAIRMAN TIPSORD: Okay.

MS. FRANZETTI: Could I just make a

233

note of the ones I believe he agreed to look

for, and haven't been produced yet through

the Agency. So that if per chance the Agency

could follow-up with Mr. Yoder between now

and the next set of hearings and see if there

is any more additional information available,

it would be appreciated.

MS. WILLIAMS: Well, I think we also

said we believe we have some stuff already at

the office in the first day that we hadn't

had time to prepare because it came in too

late.

MS. FRANZETTI: The first one I noted

were the field data sheets for the Attachment

S data. He had also agreed to produce the

field activities log, if it still existed.

He was going to look into whether a detailed

plan of study for the selection of the

sampling sites was prepared per the CLAP. He

was going to check whether he could find the

inputs to the computer program to resolve

issues regarding the totals on the QHEI

sheets that didn't seem to match the sum of

the individual category marks. This was in

234

response to Mr. Rao's questions. And then I

think that -- and then finally I'm not -- I

know he's produced the White Sucker article,

and that's been marked as an Exhibit. He had

also made mention about finding his notes and

calculations with regard to the White Sucker

values and what he ultimately used. So that

was -- and that's the last that I had of

outstanding information requests to

Mr. Yoder.

MS. DIERS: I think Suzanne had

everything on that list except maybe the

input I just forgot. He sent some things

right when we started.

MS. FRANZETTI: I thought it would be

helpful to list off of for you what I thought

was outstanding.

CHAIRMAN TIPSORD: And, Ms. Franzetti,

weren't you going to get us a copy of the

article?

MS. FRANZETTI: We're still trying to

get a clean copy of that article.

MR. ETTINGER: Off the record for a

second.

235

(Off the record.)

CHAIRMAN TIPSORD: Going back on the

record, I want to personally thank all of

you. I want to thank you for your

cooperation and professionalism. I know it's

been a long three days. We've gotten a lot

of stuff on the record, and I really

appreciate that. We will have our third

group of hearings starting April 23rd at

11:30 a.m. in Des Plaines, and we'll get the

address and all of that information. I'll do

a standard Hearing Officer Order that

includes the address and the time that we're

going to start and all of that information,

and I will also include that we're going to

have a prehearing meeting to discuss future

hearings at 11:00 a.m. for anyone who wants

to attend.

Again, I thank you very much. Dr.

Girard, anything else?

MEMBER GIRARD: No, thank you all for

your participation. It's been a great set of

hearings, and we look forward to April.

CHAIRMAN TIPSORD: We're adjourned.

236

237

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF C O O K )

DENISE ANDRAS, being first duly sworn, on

6 oath says that she is a Certified Shorthand Reporter

7 doing business in the City of Des Plaines, County of

8 Cook, and State of Illinois.

That she reported in shorthand the

10 proceedings had at the foregoing hearing of the

11 above-entitled cause.

And that the foregoing is a true and

13 correct transcript of her shorthand notes so taken

14 as aforesaid and contains all the proceedings had at

15 the said trial.

___________________________

DENISE ANDRAS, CSR

CSR NO. 084-003437

21 SUBSCRIBED AND SWORN TO

before me this ____ day

22 of _______, A.D., 2008.

_______________________

Notary Public