1
1
ILLINOIS POLLUTION CONTROL BOARD
2 IN THE MATTER OF:
)
)
3 WATER QUALITY STANDARDS AND ) R08-09
EFFLUENT LIMITATIONS FOR THE ) (Rulemaking-
4 CHICAGO AREA WATERWAY SYSTEM ) Water)
AND THE LOWER DES PLAINES )
5 RIVER: PROPOSED AMENDMENTS )
TO 35 Ill. Adm. Code Parts )
6 301, 302, 303 and 304
)
7
REPORT OF PROCEEDINGS held in the
8 above-entitled cause before Hearing Officer Marie
9 Tipsord, called by the Illinois Pollution Control
10 Board, taken before Laura Mukahirn, CSR, a notary
11 public within and for the County of Cook and State
12 of Illinois, 9511 Harrison Street, Des Plaines,
13 Illinois, on the 24th day of April, 2008, commencing
14 at the hour of 9:00 a.m.
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A P P E A R A N C E S
2
MS. MARIE TIPSORD, Hearing Officer
MR. TANNER GIRARD, Acting Chairman
3
MR. ANAND RAO
MS. ALISA LIU
4
MR. THOMAS E. JOHNSON
Appearing on behalf of the Illinois
5
Pollution Control Board
6
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
7
P.O. Box 19276
Springfield, Illinois 62794-9276
8
(217)782-5544
BY: MS. DEBORAH WILLIAMS
9
MS. STEPHANIE DIERS
MR. ROBERT SULSKI
10
MR. SCOTT TWAIT
MR. ROY SMOGOR
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HEARING OFFICER TIPSORD: Good
2
morning. My name is Marie Tipsord and I've
3
been appointed by the board to serve as
4
hearing officer in this proceedings entitled
5
Water Quality Standards and Effluent
6
Limitations for the Chicago Area Waterway
7
System and Lower Des Plaines River. Proposed
8
amendments to 35 Illinois Admin. Code 301,
9
302, 303 and 304. The docket No. Is R08-9.
10
To my immediate right is Dr. Tanner Girard,
11
presiding board member in this proceeding and
12
to his right is board member Thomas Johnson.
13
To my immediate left will be Anand Rao and to
14
his left will be Alisa Liu from the technical
15
staff.
16
This is Day Two of our third
17
set of hearings which I think now makes 11
18
days of hearing, ten days? I've lost track.
19
The purpose is to continue with questions for
20
the Environmental Protection Agency. The
21
Agency witnesses were introduced and sworn in
22
yesterday. I'll have you introduce them
23
again just for purposes of the record, and I
24
ask that everyone again identify yourselves
4
1
today for the first time in case someone
2
picks up this transcript blind. We still
3
have questions from the Metropolitan Water
4
Reclamation District of Greater Chicago and
5
ExxonMobil Oil Corporation. Anyone may ask a
6
follow-up question and not need wait until
7
your turn to ask questions. After we
8
finished the pre-filed questions, I will
9
allow for additional time for anyone who
10
might have questions based on material that's
11
been presented since the beginning of these
12
hearings. After I've acknowledged you, as
13
I've said, please state your name and who you
14
represent, speak one at a time. If you're
15
speaking over each other, the court reporter
16
will not be able to get your questions on the
17
record. Note that any questions by a board
18
member or staff are intended to help build a
19
complete record for the Board's decision and
20
not to express any preconceived notion or
21
bias. Today we will not go until 7:00
22
o'clock. Hopefully we will be done before
23
5:00, but at least until 5:00. And with
24
that, I see that Mr. Andes looks like he's
5
1
ready to go.
2
MR. ANDES: Fred Andes, Metropolitan
3
Water Reclamation District, Greater Chicago.
4
HEARING OFFICER TIPSORD: I think I
5
was going to have you introduce the witnesses
6
again for the record.
7
MR. TWAIT: I'm Scott Twait for the
8
Illinois EPA.
9
MS. WILLIAMS: Debra Williams,
10
assistant counsel Illinois EPA.
11
MS. DIERS: Stephanie Diers, counsel
12
for Illinois EPA.
13
MR. SULSKI: Rob Sulski, Illinois EPA.
14
MR. ESSIG: Albert Essig, Illinois
15
EPA.
16
MR. SMOGOR: Roy Smogor, Illinois EPA.
17
HEARING OFFICER TIPSORD: And, again,
18
you were all sworn in yesterday, so.
19
MS. WILLIAMS: Except for Miss Diers.
20
MR. ANDES: We're going to continue
21
with questions on IBI issues, and this is a
22
follow-up question. On Page 12 of
23
Attachment U, which is entitled Interpreting
24
Illinois Fish Ibi Scores, it states, quote,
6
1
we think that explicit definition and
2
description of the biological, chemical, and
3
physical conditions expected to occur at
4
various levels of biotic integrity can help
5
clarify, standardize, and improve the
6
reliability of some of the subjectivity
7
necessary involved using IBI scores to help
8
assure attainment of aquatic life use.
9
MS. DIERS: Excuse me, Fred. Is this
10
a prefiled question?
11
MR. ANDES: I'm sorry. It was a
12
follow-up.
13
MS. WILLIAMS: We're looking on
14
Page 12 of U?
15
MR. ANDES: Yes.
16
MR. SULSKI: Where does it start,
17
please.
18
MR. ANDES: We think that explicit
19
definition and description. So my question
20
as to that is does the CAWS UAA provide
21
explicit definition and description of the
22
biological, chemical, and physical conditions
23
expected to occur at various levels of biotic
24
integrity and, if so, can you point us to
7
1
where in Attachment B it does that.
2
MR. SMOGOR: I don't know if the UAA
3
addresses this sentence in particular. This
4
sentence was not meant to address UAAs in
5
particular. This is my writing, this is
6
something that I created, this report, with
7
the help of others. And, in general, if I --
8
What I was talking about here is just in
9
general terms applying fish IBIs. It always
10
helps to have that type of information, but
11
that doesn't mean you can't make decisions
12
and interpretations based on less than the
13
ideal set of information. We're often not
14
afforded the ideal set of information. So I
15
think that's why I used the word can help
16
assess attainment. It was a bit of a
17
qualifier there realizing that we never have
18
perfect and complete information to make the
19
decisions and to make the interpretations
20
that were called upon to do. And that's all
21
I meant there, is just speaking in general.
22
MR. ANDES: So the UAA report does not
23
provide that explicit definition and
24
description? Am I right?
8
1
MR. SMOGOR: I would say we believe
2
that UAA and the additional information
3
that's on the record provides sufficient
4
information to allow us to come to the
5
conclusions and interpretations that we've
6
presented in this rulemaking.
7
MR. ANDES: That wasn't my question.
8
The question was does it provide the explicit
9
definition and description of the conditions
10
expected to occur at various levels of biotic
11
integrity?
12
MR. SMOGOR: Does it provide explicit
13
definition and description? I don't know.
14
It depends on how someone would interpret
15
that word explicit.
16
MR. ANDES: Well, if you think it
17
might be there, then tell me where it is.
18
MR. SMOGOR: I think it -- What we've
19
been talking about through all these
20
proceedings is that the information is
21
sufficient in some person's judgment that may
22
not meet the definition of explicit. I think
23
some of the information is explicit. It's
24
very detailed. It talks about -- the
9
1
information is detailed enough to come to
2
reasonable interpretation.
3
MR. ANDES: But I recall that in
4
response to several questions in earlier
5
hearings when we asked can you define a
6
specific set of biological conditions, fish
7
species, et cetera, that would occur at
8
various levels of biotic integrity, that the
9
answer we got was basically, well, no, we
10
haven't defined that. It's more that the IBI
11
score would go from X to Y. But we haven't
12
defined exactly what it means in terms of
13
would that mean more of a particular species
14
or better diversity or whatever. It was
15
simply that overall the scores would go up.
16
And I believe that was the Agency's testimony
17
in past hearings.
18
MR. SMOGOR: I'm not sure exactly what
19
you're talking about there, so I can't
20
comment on that interpretation.
21
MR. ANDES: Okay. What we're trying
22
to understand is if the document you wrote
23
says that explicit -- this explicit
24
definition and description would help address
10
1
the subjectivity involved with using IBI
2
scores to help assess attainment, but we
3
can't pinpoint any particular place in the
4
UAA report where it actually provides
5
explicit definition doesn't mean, well, if
6
you look at all the documents, it's in there
7
somewhere. Explicit means clear, set forth
8
in one place where we can look at it, and it
9
sounds like that's just not there.
10
MR. SMOGOR: Well, I think there's
11
clear enough, sufficient enough explicit
12
enough information in what's on the record to
13
support the interpretations and the
14
conclusions that we've put on the record.
15
And I don't know what else to say beyond
16
that. We believe there is enough
17
information, we do believe it's explicit
18
enough to justify the conclusions we made.
19
And I do understand and appreciate that there
20
may be opposing perspectives or different
21
perspectives on that.
22
MR. ANDES: Okay. Let me move on to
23
another follow-up question. At the March 10
24
hearing on Pages 16, 20, 22, and 30, the
11
1
morning transcript, Mr. Sulski stated that a
2
weight of evidence approach was used for
3
considering factors such as habitat, IBI
4
scores, aquatic life uses, macroinvertebrate
5
data and sediment quality in the CAWS.
6
MS. WILLIAMS: Did you provide a page,
7
Fred?
8
MR. ANDES: Pages 16, 20, 22, and 30
9
of the morning transcript on March 10.
10
MS. WILLIAMS: So you're not quoting?
11
You're paraphrasing?
12
MR. ANDES: I'm summarizing those
13
statements. The weight of evidence issue was
14
addressed in several questions. And the
15
first thing I'd like to try to understand is
16
what exactly does that mean when you say that
17
the IEPA used a weight of evidence approach?
18
MS. WILLIAMS: I'm asking him to
19
review those pages.
20
MR. SULSKI: Please repeat your
21
question.
22
MR. ANDES: Sure. In the hearing in
23
those places you stated that a weight of
24
evidence approach was used for considering a
12
1
number of factors on attainment of aquatic
2
life uses. Can you explain exactly what a
3
weight of evidence approach is? What
4
approach you used and how you assess the
5
various factors.
6
MR. SULSKI: Okay. We begin with a
7
set of habitat data and lump on to that our
8
knowledge of the system in terms of physics
9
and experience or other systems in the case
10
of a contractor. We include any IBI data we
11
have, we include any chemical data we have,
12
we include the sediment chemistry data, all
13
the data that we have, and make a
14
determination on whatever we think the
15
potential is for that system not looking at
16
any one of those in particular. But, as
17
we've said before, it's weighted towards the
18
habitat conditions. Because we identified,
19
through the chemical review of the chemistry,
20
that there are chemical stressors in the
21
system. And then even with the habitat data,
22
the QHEI, we look at certain metrics involved
23
in that habitat assessment, and in our
24
experience in traveling the waterways, we
13
1
look at where those habitat measurements were
2
made, are they representative of the entire
3
system, or is this just a little pocket
4
that's unusual and sort of unique, or does it
5
represent the whole reach that we're looking
6
at. And then as far as the sediment, do we
7
have enough information to evaluate whether
8
the sediment is a stressor, do we have enough
9
chemistry to evaluate whether the chemistry
10
is a stressor, what parameters are falling
11
below, what our screening factors were. So
12
all of that combined is a weight of evidence
13
determination.
14
MR. ANDES: Is there someplace where
15
this approach is laid out in terms of how
16
those factors are considered, what weight is
17
given to each one?
18
MR. SULSKI: I can't pinpoint right
19
now in the reports. I could look. However,
20
in my experience in reviewing literature and
21
attending conferences, studies, you know,
22
common scientific practice to use a weight of
23
evidence approach when you start evaluating
24
biological systems.
14
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MR. ANDES: Can you, and I'm aware of
2
reports in the scientific literature about
3
the weight of evidence approach. Can you
4
point us to any particular studies or
5
documents in the literature that would have
6
been used in developing this approach?
7
MR. SULSKI: Well, for example, I
8
have, you know, a stack of manuscripts and
9
papers and publications that talk about
10
sediments, you know. And always when you're
11
looking at a biological system and the
12
effects on biological system, there are so
13
many factors involved in that that you have
14
to use a weight of evidence approach.
15
MR. ANDES: But I'm trying to figure
16
out which weight of evidence approach you
17
used since there are a lot of different ways
18
to do it. For example, there's the Pellston
19
report on sediment quality and assessing
20
sediment quality of the weight of evidence
21
approach. Was that report considered in
22
assessing the factors here?
23
MR. SULSKI: I can't pin my knowledge
24
on that particular document, but, you know, I
15
1
do know that in looking at biological
2
systems, you have to evaluate all these
3
different entities, or let's call them
4
metrics or parameters, that includes, you
5
know, biological data, chemistry, and that
6
sort of thing. Howard did point out to me
7
that CDM used an approach that's --
8
MR. ESSIG: If you check out Page 5-7
9
in the CAWS UAA.
10
MS. WILLIAMS: Attachment B.
11
MR. ANDES: Page 5-7.
12
MR. ESSIG: And it's Figure 5-1. It
13
goes through the assessment procedure that
14
Illinois EPA uses when assessing the water
15
for the Fuel 3D report (inaudible).
16
MR. ANDES: Okay. But that isn't
17
necessarily approach you used in determining
18
biological potential of these --
19
MR. ESSIG: Not for biological
20
potential. Biological primarily was based on
21
more of the habitat laws. All the other data
22
we used to assess what's basically the
23
current condition, and that's how we would
24
assess current conditions in Illinois. It's
16
1
based on basically this chart.
2
MR. ANDES: So does that mean that you
3
use a weight of evidence approach in
4
determining the current conditions but not in
5
determining biological potential?
6
MR. ESSIG: Correct. Because the
7
current condition in terms of water
8
chemistry, let's say, if water chemistry is
9
poor, that's something that might be able to
10
be corrected. If you're openly going to look
11
at the biology occurring in that poor water
12
quality condition, you'd never improve it.
13
You'd just set it at what it is and there
14
would be no change. So the idea is to look
15
at a system and see is there any potential
16
there, does the habitat give you any type of
17
potential that could possibly improve if
18
other factors were improved.
19
MR. ANDES: So then a weight of
20
evidence approach was not used in determining
21
the new use categories for these water
22
bodies? I thought the testimony was that it
23
was used.
24
MR. SULSKI: That's not true. But
17
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when you say weight of evidence approach,
2
it's not -- There's no rigid definition. If
3
you go from one place to another, you will
4
find, you know, that you have to rely on the
5
weight of evidence and sometimes they use a
6
balance as an analogy of that. So in terms
7
of one specific method that one particular
8
researcher used, I don't think that that's
9
what was intended by that word weight of
10
evidence. The weight of evidence is the
11
entire package, the entire assessment that we
12
do.
13
MR. ANDES: But literature, if I'm, if
14
I read it correctly, defines a structured way
15
of considering various factors. It's not
16
that you just take a bunch of things and lump
17
them in together and then come out with a
18
conclusion. It's a structured nonarbitrary
19
way of assessing a number of factors to which
20
I know, for example, the Pellston Report is
21
very clear on. I'm trying to understand how
22
the Agency -- Did the agency do a structured
23
assessment? And, if so, I'm trying to
24
understand the structure, not just that there
18
1
were a bunch of things considered, but what
2
were the factors considered and what was the
3
specific weight given to each one?
4
MR. SMOGOR: I agree there are
5
approaches in the literature that go through
6
a structured fairly well-defined process.
7
But there's also literature that talks about
8
weight of evidence being defined in many
9
different ways, many different levels of
10
detail. I think the weight of evidence being
11
referred to here is in more general terms.
12
We considered another buzz word from the
13
literature is multiple lines of evidence.
14
Multiple lines of evidence were considered,
15
and there is no quantitative weighting of
16
those lines of evidence that's part of this
17
record that I'm aware of. That's part of our
18
statement of reasons. We look at multiple
19
lines of evidence, we made interpretations
20
both on those -- on those multiple lines of
21
evidence for proposing biological potential,
22
for proposing aquatic life uses, and I don't
23
believe that in what's on the record there is
24
a step-by-step well-detailed or detailed
19
1
process that defines them.
2
MR. ANDES: So if I'm looking for a
3
structured scientific assessment here of
4
these various factors, I'm not really going
5
to find that anywhere?
6
MR. SMOGOR: You're not going to find
7
a step-by-step process for how we arrive at
8
our conclusions. If you want to call that --
9
if a lack of a step-by-step process is not
10
structured then based on your definition of
11
nonstructured, then you can call that
12
nonstructured.
13
MR. ANDES: Okay. And the challenge
14
here obviously is we're trying to figure out
15
how do we assess it in determining -- and
16
critique it when there's no structure to it?
17
MR. SMOGOR: Well, I think there's
18
some structure to it. It's what you got in
19
the statement of reasons. And if you believe
20
that's lacking, I guess that's why we're here
21
to discuss these things. And I guess I can't
22
comment much further on that to say I agree
23
with you, there is no step-by-step detailed
24
structure about how we went, used all of the
20
1
lines of evidence and came to our conclusions
2
about the aquatic life uses.
3
MR. ANDES: And --
4
MR. SULSKI: Could I add to that? In
5
the UAA process, it's an open process
6
involving stakeholders. And to a great
7
extent within that UAA process, the structure
8
of the analysis was guided by the SAC group
9
so that when we hit a dead end on habitat,
10
all agreed that habitat was an important line
11
that could answer some questions for us, so
12
important that some money came up to do a
13
habitat analysis.
14
MR. ANDES: Did the final proposal
15
from the Agency match recommendations from
16
that group? Haven't there been
17
substantial -- I'm really leery of saying,
18
well, the group had a consensus. The
19
Agency's proposal is what we're here for, not
20
the recommendations of stakeholders earlier.
21
And the Agency has to stand the fall based on
22
its record in this rulemaking. So,
23
particularly, when this rule has changed
24
substantially since what the stakeholders
21
1
discussed, I don't think that's all that
2
relevant.
3
MR. ETTINGER: I think we're getting
4
into a few speeches here, rather than
5
questions.
6
MR. ANDES: That's fine. Let me move
7
onto --
8
MS. WILLIAMS: Can I ask a follow-up
9
question at this point?
10
HEARING OFFICER TIPSORD: Sure.
11
MS. WILLIAMS: Mr. Andes is getting at
12
whether we followed a specific methodology
13
from scientific literature. Can any of you
14
answer whether or not a specific methodology
15
for analyzing UA factors is laid out in the
16
Clean Water Act or in the federal regulations
17
anywhere?
18
MR. SULSKI: UAA says that a UAA is a
19
structured scientific analysis. That's it.
20
MR. SMOGOR: But if you're asking does
21
the Clean Water Act and associated
22
regulations provide the steps of that
23
analysis, I don't believe it does.
24
MS. WILLIAMS: Thank you. That's all
22
1
I have.
2
MR. ANDES: Another question going
3
back to the March 10 transcript. On Page 20,
4
Mr. Essig stated -- if you want to go to that
5
transcript, that's fine. I'm quoting from
6
Mr. Essig. The benthic data wasn't utilized
7
as much as it may have been able to be,
8
primarily because of the relationship between
9
the habitat measures, the qualitative habitat
10
evaluation index, and the fish index of
11
biointegrity that were developed in Ohio or
12
more directly related to each other, end
13
quote. Do you folks have the quote?
14
MR. ESSIG: Yes.
15
MR. ANDES: First question. Did IEPA
16
intend to relate benthic and vertebrate data
17
in the CAWS to IBI or habitat in the CAWS, or
18
was a decision to focus on fish and habitat
19
made based solely on the Ohio data?
20
MR. ESSIG: The decisions were based
21
solely on the IBI and QHEI. The
22
macroinvertebrate data was used to look at a
23
current condition.
24
MR. ANDES: Okay. But my question was
23
1
why -- it sounds from the testimony like the
2
reason the benthic data wasn't considered
3
extensively was because of Ohio data. And
4
that's what I'm trying to verify is that that
5
decision to focus away from the benthic was
6
made based on the Ohio data, not on any
7
attempt to look at benthic data in the CAWS
8
and relate that to IBI or habitat.
9
MR. ESSIG: No, that's not what I
10
meant by saying that. Basically what I meant
11
was the CAWS, the index that was used to
12
assess the macroinvertebrates in the CAWS was
13
the Illinois EPA macroinvertebrate biotic
14
index.
15
HEARING OFFICER TIPSORD: Mr. Essig,
16
could you face the court reporter.
17
MR. ESSIG: I'm sorry. That index is
18
a tolerance-based index primarily based on
19
dissolved oxygen and the OD ammonia
20
basically. It gives you a relative idea of
21
the water quality of the system, but it
22
doesn't really take into account all of the
23
factors that may impact the community such as
24
habitat. And I believe the feeling -- and
24
1
even in Ohio they primarily use the IBI even
2
though they do use macroinvertebrate data,
3
they collect it and they do have an index for
4
it, but their methodology reflecting
5
macroinvertebrates as well as the methodology
6
that was used in the CAWS is with artificial
7
substrates which are not -- do not reflect
8
the natural conditions of a stream. They're
9
designed primarily to take the differences of
10
habitat and try to minimize that so that you
11
can get an idea of what the actual water
12
quality is like in the absence of differences
13
of habitat. That's primarily why that's
14
used. So because this was a limited, if you
15
will, limited index to one part of the
16
puzzle, it was not included in the biotic
17
potential analysis.
18
MR. ANDES: That seems to conflict
19
with the testimony from March which you
20
indicated that the benthic data wasn't
21
utilized as much as it may have been able to
22
be primarily because you defined the
23
relationship between the QHEI and the IBI in
24
the Ohio data. That's what it said. So
25
1
that's a very different reason than what
2
you're explaining now. I'm trying to
3
understand why the benthic data wasn't given
4
much weight here, and it sounds like the
5
initial explanation was it wasn't given much
6
weight because in Ohio it didn't seem to be a
7
big factor. And I'm trying to figure out,
8
well, have you looked at whether it ought to
9
have been a big factor here rather than in
10
Ohio?
11
MR. ESSIG: Based on the collection
12
methods and the index used, I would say no,
13
it really probably couldn't be used more the
14
way it was interpreted in this report. And
15
most of from what I'm familiar with from the
16
literature from Ohio, most of their analysis
17
regarding habitat and the BIODUg is primarily
18
done with comparisons of fish and with the
19
habitat and relationships of those two.
20
MR. ANDES: So my question then is as
21
to the CAWS, why did the Agency decide not to
22
give much weight to benthic data from the
23
CAWS?
24
MR. ESSIG: I think I just answered
26
1
that. I think I've answered it a couple of
2
times now. I've explained the sampling
3
methodology, the limitations of the index,
4
the fact that that index does not encompass
5
other environmental factors. I think that
6
was -- I think that's why the decision was
7
made to limit it primarily to the biotic
8
potential analysis, to primarily the IBI and
9
QHEI.
10
HEARING OFFICER TIPSORD: Let's go off
11
the record for a second.
12
(Off the record.)
13
MR. ANDES: If the issues of concern
14
were the sampling methodology and the nature
15
of the index, did the Agency investigate
16
whether there might have been a way to
17
address the sampling issues, develop the
18
different index, somehow consider the benthic
19
data? Because after all, it would seem that
20
benthic data ought to be relevant,
21
particularly when we have a sediment issue in
22
the water body, benthic issue data ought to
23
be relevant in some way, right? So my
24
question was did the Agency consider other
27
1
ways to consider benthic information in the
2
process that would have allowed it to have
3
more weight?
4
MR. ESSIG: As I said, I think the
5
macroinvertebrate data, the way it is that's
6
presented in the report and even what's
7
available that -- other information that
8
might have been available to utilize with
9
this data I think would have been more used
10
to analyze the current condition of the
11
waterway, not necessarily to determine what
12
the potential is.
13
MR. ANDES: But wouldn't that be the
14
same case as the fish data? And you did
15
consider fish IBI scores.
16
MR. ESSIG: To some extent, but it is
17
primarily -- the main focus was the QHEI.
18
IBI was looked at in comparison with the
19
QHEI. The Ed Rankin report, some of their
20
figures showed the relationships between the
21
IBI and the QHEI and the habitat metrics in
22
the QHEI. I'm not aware of relationships
23
like that that have been done for
24
macroinvertebrate data.
28
1
MR. ANDES: We're going to move on,
2
unless anybody has any follow-ups, to some
3
questions about dissolved oxygen. And I'm
4
going to start with some of the prefiled
5
questions for Mr. Smogor. And I believe
6
those are on -- start on Page 26 of our
7
prefiled questions with Question No. 7. On
8
Page 4 of your prefiled testimony, you stated
9
dissolved oxygen standards being proposed for
10
the CAWS and the lower Des Plaines River are
11
consistent with the standards already
12
recommended to the Board by Illinois EPA in a
13
pending rulemaking R04-25. The first
14
question is have you taken into account, and
15
I think the Agency's testimony supports this,
16
that the CAWS are unique among the waterways
17
in the state and are not designated as
18
general use waters as is the case in that
19
rulemaking?
20
MR. SMOGOR: Yes. We accounted for
21
the fact that we're proposing an aquatic life
22
use different from general use biological
23
conditions.
24
MR. ANDES: But proposing the same
29
1
standards?
2
MR. SMOGOR: Yes.
3
MR. ANDES: Okay. Would you agree
4
that CAWS --
5
MR. SMOGOR: Let me back up. We're
6
proposing -- We're not proposing the same
7
dissolved oxygen standards for general use as
8
we have proposed for either of the CAWS
9
waters. Actually, we're not proposing the
10
same -- We're not proposing standards that
11
are the same as general use standards for the
12
CAWS waterways.
13
MR. ANDES: So the statement that DO
14
standards being proposed are consistent with
15
the standards recommended in that
16
rulemaking --
17
MR. SMOGOR: By consistent I didn't
18
mean identical. I meant they're consistent
19
with the concepts and the principles on which
20
the general use standards are based, and
21
they're also consistent, logically consistent
22
with what we've set for general use waters.
23
So that doesn't mean they're identical or
24
equivalent.
30
1
MR. ANDES: Okay. The CAWS is not
2
capable of supporting a general use
3
biological community, right?
4
MR. SMOGOR: Correct.
5
MR. ANDES: Okay. So please explain
6
how these standards are consistent with the
7
methodology and the general use rulemaking
8
but aren't the same?
9
MR. SMOGOR: Well, again, I think I
10
use the term consistent there in greater
11
context to represent that the standards
12
proposed for CAWS are based on the same
13
principles and concepts and thinking that
14
went into developing the standards for the
15
general use waters.
16
MR. ANDES: Even though they're
17
significantly different types of water
18
bodies?
19
MR. SMOGOR: Yes. Because what we're
20
trying to do when we develop DO standards is
21
protect aquatic life such that that aquatic
22
life can achieve the potential that you've
23
proposed as the use. So the bottom line is
24
we're protecting aquatic life to a certain
31
1
level, and that's a common thread whether
2
you're setting DO standards for one set of
3
waters or another set of waters.
4
MR. ANDES: In proposing the DO
5
standards or the CAWS and lower Des Plaines,
6
you account for behavior of the system on wet
7
weather conditions?
8
MR. SMOGOR: No, not exclusively.
9
MR. ANDES: Did you consider and
10
propose in the standard that it may lead to
11
propagation and proliferation of less
12
tolerant species that are currently found in
13
the CAWS?
14
MR. ETTINGER: What? What might lead
15
to propagation of less tolerant species?
16
MR. ANDES: The proposed standards.
17
HEARING OFFICER TIPSORD: It's
18
prefiled Question 7E.
19
MS. WILLIAMS: Do you mean fewer or do
20
you mean -- Can you clarify, Mr. Andes,
21
whether you mean fewer tolerant species or
22
species that are less tolerant? Do you
23
understand my question?
24
MR. ANDES: Species that are less
32
1
tolerant.
2
MR. SMOGOR: So we're -- yes. I think
3
that's partly the goal.
4
MR. ANDES: Let me go on to the next
5
question then. Would you agree that there is
6
a risk that occasional CSOs, flow stagnation,
7
higher temperature regimes, and oxygen demand
8
from resuspended sediments can combine to
9
very quickly and unpredictably impact these
10
less tolerant fish populations and negate the
11
benefits of the initial aeration that will be
12
required to achieve the standards? And, if
13
not, why not?
14
MR. SMOGOR: No. I don't see how
15
benefits of requiring better DO for aquatic
16
life in these waters can somehow have a
17
negative impact on accessible life in these
18
waters. I just don't see the connection
19
there. We're trying to create conditions
20
that are better for aquatic life and we've
21
hoped that we make it better for less
22
tolerant organisms that were precluded to
23
come in and increase the biological condition
24
of the system.
33
1
MR. ANDES: The question is whether
2
what you're doing is enabling less tolerant
3
fish populations that are then affected by
4
all the other conditions in this water -- in
5
this set of water bodies and basically
6
knocked out. So you're creating a population
7
of less tolerant fish species, but there are
8
a bunch of other conditions that will impact
9
those species and decimate them.
10
MR. SMOGOR: Well, when we're
11
developing standards for a particular
12
constituent like dissolved oxygen, I believe
13
our charge is to say define the dissolved
14
oxygen levels that are going to allow you to
15
meet your potential. In other words, if the
16
water is not currently meeting that
17
potential, create better DO conditions if DO
18
is a part of equation. Now, if in creating
19
those standards there are other conditions
20
that may affect how aquatic life relates to
21
DO, I don't see how that creates a
22
justification for not setting DO at the
23
appropriate levels.
24
MR. ANDES: And might that not,
34
1
though, counsel for a weight of evidence
2
approach when one looks at all the different
3
issues in the water body together and tries
4
to figure out how we can create a better
5
situation all told not pollutant by
6
pollutant? It sounds like the DO issue is
7
going to assess specific to DO, but what
8
we're asking is has that -- has the Agency
9
considered that improving that standard when
10
there are other factors in the water body,
11
including physical factors, that will impact
12
that population isn't necessarily -- can be
13
counter-productive?
14
MR. SMOGOR: I guess I don't see how
15
setting the dissolved oxygen conditions that
16
we proposed can be counter-productive. I
17
just don't see the logic there.
18
MR. SULSKI: What's more, these
19
occasional CSO flow stagnations, higher
20
temperature regimes were addressed or there
21
are proposals for addressing them.
22
MR. ANDES: In the CSOs?
23
MR. SULSKI: CSO, the District has
24
proposed and everybody knows that TARP
35
1
continues to be constructed.
2
MR. ANDES: Will there be CSOs after
3
TARP?
4
MR. SULSKI: Yes.
5
HEARING OFFICER TIPSORD: For the
6
record, we've used TARP several times in the
7
last couple of days. Let's go ahead and
8
explain what that is.
9
MR. SULSKI: TARP is the tunnel and
10
reservoir program for capturing and treating
11
combined sewer overflows, discharges.
12
HEARING OFFICER TIPSORD: Thank you.
13
I should have had you do it yesterday.
14
MR. ANDES: Let's move on to the next
15
question. The CAWS UAA Attachment B states
16
the water quality improvements like
17
reaeration will not lead to attainment of
18
aquatic life uses. And I believe we're
19
talking about Clean Water Act, aquatic life
20
uses --
21
MR. SMOGOR: Excuse me, Mr. Andes.
22
Can you tell me what question you're on,
23
please?
24
HEARING OFFICER TIPSORD: H.
36
1
MR. SMOGOR: Thank you. I'm sorry.
2
MR. ANDES: Because of habitat
3
limitations. The quote was on Page 5-3 of
4
the UAA report. Can you clarify how the
5
proposed criteria will lead to attainment of
6
the proposed aquatic life uses?
7
MS. WILLIAMS: Is there a citation to
8
where it says this?
9
MR. ANDES: It's on Page 5-3 of the
10
UAA report.
11
HEARING OFFICER TIPSORD: Attachment B
12
to the proposal.
13
MR. SULSKI: I'm looking to see what
14
5-3 says exactly. Okay. I've read this text
15
in factor 4 you're talking about?
16
MR. ANDES: Yes.
17
MR. SULSKI: Now could you please
18
repeat your question.
19
MR. ANDES: Please clarify how the
20
proposed DO criteria will lead to attainment
21
of the proposed aquatic life uses given that
22
statement.
23
MR. SULSKI: I think what the
24
contractor is saying here is that there are
37
1
some areas, and he mentions the sanitary ship
2
canal, where some improvements -- or
3
improvements may not lead to, as he puts it,
4
higher aquatic life uses. But we proposed a
5
lesser use for the sanitary ship canal.
6
MR. ANDES: For part of it, right?
7
MR. SULSKI: For aquatic life.
8
MR. ANDES: Right.
9
MR. SULSKI: All of it.
10
MR. ANDES: Right. But parts A,
11
parts B?
12
MR. SULSKI: No, it's all B. Sanitary
13
ship canal is the lowest aquatic life
14
potential zone.
15
MR. ANDES: Okay.
16
HEARING OFFICER TIPSORD: I'm not sure
17
you answered the question yet. You explained
18
what your consultant said, but the question
19
is, okay, based on what your consultant said,
20
how do you --
21
MS. WILLIAMS: I think his answer is
22
that Fred is mischaracterizing what the
23
consultant said is how I'm understanding
24
the --
38
1
HEARING OFFICER TIPSORD: Then
2
Mr. Sulski, is that what you're saying?
3
MR. SULSKI: I guess, as we go back
4
and forth, I'm still unsure of the question
5
now. Howard says he may have a better grasp
6
on it.
7
MR. ESSIG: The statement that is on
8
that page, it's in relation to the entire
9
CAWS. It's including -- I don't think
10
it's --
11
MR. ANDES: So not only the canal?
12
MR. ESSIG: I think what they're
13
saying here is that there are habitat
14
limitations, and it specifically mentions the
15
sanitary ship canal which is a Group B water.
16
The Group A waters have a slightly higher
17
potential. He's referring here to what he's
18
talking about habitat limitations is to the
19
Group B waters, I think is primarily what
20
he's talking about.
21
MR. ANDES: Okay. Well, let me follow
22
up on that. In envisioning the improved
23
aquatic community that would result from the
24
proposed standards, we've talked about some
39
1
of the stressors, CSOs, flow stagnation, et
2
cetera. Does the Agency think that these
3
issues all need to be completely eliminated
4
in order for the uses to be achieved?
5
MR. SULSKI: Yes, for the most part.
6
MR. ANDES: Okay. Does that mean that
7
the CSOs need to be completely eliminated or
8
comply with water quality standards, which I
9
think would mean complete elimination?
10
MR. SULSKI: I don't know whether a
11
complete elimination of CSOs would be
12
necessary to achieve the standards. We
13
are -- The goal is to reduce the number of
14
CSOs from down to roughly two or three a
15
year.
16
MR. ANDES: Where -- is that
17
documented in the UAA report, that goal?
18
MR. SULSKI: No, not that I know of.
19
MR. ANDES: Can you tell me where it
20
came from?
21
MR. SULSKI: Well, that's a national
22
goal to begin with. And my knowledge of the
23
deep tunnel project suggests that CSOs, the
24
goal is to reduce -- is to follow the federal
40
1
goal and reduce CSO frequency to two or three
2
or four times a year.
3
MR. ANDES: Can you cite me where in
4
the federal policy it gives those numbers?
5
MR. SULSKI: I can look that up for
6
you and give it to you.
7
MR. ANDES: Thank you. And any
8
citation you can provide as to the goal of
9
TARPing to meet a specific number along those
10
lines, if you can provide me any --
11
MR. SULSKI: I can go back to the
12
office and --
13
MS. WILLIAMS: Can I please get a
14
specific so I have it written down, what are
15
you asking.
16
MR. ANDES: I'm looking for any
17
citations, whether in federal policy or TARP
18
information, that would lead to a specific
19
number of 2, 3, or 4 CSO events a year as
20
being a goal here.
21
MS. WILLIAMS: Thank you.
22
MR. HARLEY: Madam Hearing Officer?
23
HEARING OFFICE TIPSORD: Yes,
24
Mr. Harley.
41
1
MR. HARLEY: If you were to remove all
2
pollutant contributions from CSOs, MS4s, and
3
urban runoff, would the CAWS waterways still
4
experience levels of DO that are inconsistent
5
with the biological potential of the
6
waterways?
7
MR. SULSKI: I believe so.
8
MR. HARLEY: What's the basis of your
9
answer?
10
MR. SULSKI: There are some stagnant
11
reaches, two of them which we've mentioned:
12
The south fork, the south branch, and the
13
upper part of the north shore channel which
14
are stagnant.
15
MR. HARLEY: A follow-up. If you were
16
to remove all pollutant contributions from
17
CSOs, MS4s, and urban runoff, would the CAWS
18
waterways still experience levels of
19
temperature that are inconsistent with the
20
biological potential of the waterways?
21
MR. TWAIT: I believe, yes.
22
MR. HARLEY: And what is the basis of
23
your answer?
24
MR. TWAIT: Heated effluence going
42
1
into the stream.
2
MR. HARLEY: One more follow-up. If
3
you were to remove all pollutant
4
contributions from CSOs, MS4s, and urban
5
runoff, would the CAWS waterways still
6
experience levels of pathogens that are
7
inconsistent with the recreational potential
8
of the waterways?
9
MR. TWAIT: Yes.
10
MR. HARLEY: What is the basis of your
11
answer?
12
MR. TWAIT: Undisinfected wastewater
13
going into the stream.
14
MR. HARLEY: Thank you.
15
HEARING OFFICER TIPSORD:
16
Mr. Ettinger?
17
MR. ETTINGER: Are the waterways we're
18
talking about here the only ones that have
19
CSOs in the State of Illinois?
20
MR. TWAIT: No.
21
MR. ETTINGER: There are CSOs going to
22
the Fox River; is that correct?
23
MR. TWAIT: I believe so.
24
MR. ETTINGER: Are general use
43
1
standards applicable to a number of other
2
waters across the State of Illinois that have
3
some CSO events?
4
MR. TWAIT: Yes.
5
MR. HARLEY: Thank you.
6
MR. ANDES: Does any other water body
7
have 3,000 CSO events per year?
8
MR. SULSKI: I don't know.
9
MR. ETTINGER: Is the Mississippi
10
River designated general use?
11
MR. ESSIG: The Illinois portion, yes.
12
MR. ETTINGER: Is the Illinois River
13
designated general use?
14
MR. ESSIG: Yes.
15
MR. ETTINGER: Thank you.
16
MR. ANDES: Do CSOs affect attainment
17
of DO standards?
18
MR. SULSKI: It depends on the
19
frequency, duration, concentration of
20
material in the CSO.
21
MR. ANDES: Yesterday it was testified
22
that during CSO events the DO dropped to zero
23
in this system, correct?
24
MR. SULSKI: That's correct.
44
1
MR. ANDES: So is it logical to say
2
that in order to meet -- Has the Agency
3
assessed what it would take in terms of
4
eliminating CSOs, MS4s, and nonpoint runoff
5
in order to meet these DO standards?
6
MS. WILLIAMS: I missed that. Can you
7
repeat that?
8
MR. ANDES: Has the Agency assessed
9
what it would take in terms of reducing and
10
eliminating CSOs, MS4 discharges, and
11
nonrunoff in order to meet these DO
12
standards?
13
MR. SULSKI: The assessment that was
14
done in the UAAs was that we looked at wet
15
and dry weather conditions and water quality
16
in general during those conditions.
17
MR. ANDES: That's not --
18
MR. SULSKI: And -- did we do -- We
19
did an assessment of the conditions that
20
exist today. And with knowledge of what's to
21
happen in the future, it was our belief that
22
if we removed these stressors we could come
23
closer to attaining the goals and proposed
24
uses.
45
1
MR. ANDES: So, in other words, we
2
would need to remove all dischargers during
3
wet weather from the CSOs, MS4s, and nonpoint
4
runoff?
5
MR. SULSKI: I didn't say that.
6
MR. ANDES: Then what? What would we
7
need to do in terms of reducing or
8
eliminating all of those discharges to meet
9
these standards?
10
MR. SULSKI: For now all I can tell
11
you is that we need to knock the CSOs down,
12
we need to have supplemental aeration, and we
13
need to improve flow in some reaches of the
14
waterway.
15
MR. ANDES: And in terms of knocking
16
the CSOs down, can you give me more detail
17
about what that means? How many of the
18
thousands of discharges that are per year
19
CSOs, what would that need to be reduced to
20
in order to meet these standards?
21
MR. SULSKI: The presumptive approach
22
in the CSO guidance, CSO policy, is that if
23
you knock it down to three or four generally
24
you have solved the problems associated with
46
1
CSO, but it doesn't stop there. It says that
2
you will still have to do water quality
3
assessments afterwards to make sure that that
4
has taken care of the problem. If it hasn't,
5
you have to go further.
6
MR. ANDES: Okay. And but technically
7
the CSO policy and the presumptive approach,
8
which can be used, isn't really relevant to
9
this rulemaking. The question is, my
10
question was, has the Agency assessed what
11
would be needed in terms of taking away the
12
CSO discharges, the MS4 discharges, and other
13
nonpoint runoff in order to attain these
14
standards on a continuous basis?
15
MR. SULSKI: We haven't done a full
16
assessment of what will -- what might be
17
expected when TARP was done.
18
MR. ANDES: So the answer is no?
19
MR. SULSKI: Correct.
20
MR. ANDES: Thank you.
21
HEARING OFFICER TIPSORD: Mr. Harley?
22
MR. HARLEY: Miss Williams --
23
MS. WILLIAMS: Are you asking me a
24
question?
47
1
MR. HARLEY: In the legal opinion of
2
the Illinois Environmental Protection Agency,
3
does it have to regulate every source of a
4
pollutant in order to regulate any individual
5
source of pollutant?
6
MS. WILLIAMS: I don't think so. Does
7
that sound like a legal opinion?
8
MR. HARLEY: In the legal opinion of
9
the Illinois EPA, in order to regulate any
10
individual source category of a pollutant,
11
does the Agency have to regulate every source
12
category of that pollutant?
13
MS. WILLIAMS: I believe the answer is
14
no.
15
MR. HARLEY: So it would be possible
16
for the Agency to regulate publically on
17
treatment works, but not to regulate equally
18
CSOs even though they may be discharging the
19
same pollutants from time to time; is that
20
correct?
21
MS. WILLIAMS: The answer is yes,
22
except the question was saying the Agency
23
regulate. It would be the Board's
24
regulations that I would be --
48
1
MR. HARLEY: I accept your correction.
2
Thank you.
3
MR. ANDES: Let me follow up with
4
that. Does the DO standard regulate only
5
POTWs and not CSOs and not MS4s?
6
MS. WILLIAMS: He was not asking about
7
water quality standards specific. Water
8
quality standards don't apply --
9
MR. ANDES: I am.
10
MS. WILLIAMS: -- to sources
11
specifically. They apply to the industry.
12
MR. HARLEY: I would like to follow
13
up. Is there a regulatory regime for CSOs?
14
MS. WILLIAMS: Yes.
15
MR. HARLEY: Is there a regulatory
16
regime for MS4s?
17
MS. WILLIAMS: Yes.
18
MR. HARLEY: Is urban runoff
19
potentially or actually subject to best
20
management practice regulations that
21
originate from Section 319 of the Clean Water
22
Act?
23
MS. WILLIAMS: I would have to look at
24
the section reference, but repeat the
49
1
question.
2
MR. HARLEY: Are urban runoff sources
3
potentially subject or actually subject to
4
best management practice regulations under
5
the Clean Water Act?
6
MR. SULSKI: Yes.
7
MR. ANDES: Really? Can you provide
8
me with citation for binding regulations as
9
to nonpoint sources?
10
MR. HARLEY: Potential.
11
MR. ETTINGER: He said urban runoff,
12
urban runoff.
13
HEARING OFFICER TIPSORD: You know
14
what, and I appreciate wanting to ask legal
15
opinions, but we're not going to ask them
16
what specifically Section 319 says. 319
17
speaks for itself, and we can look at 319.
18
And this is argument, not necessarily
19
questions getting us forward. Mr. Ettinger,
20
did you have something?
21
MR. ETTINGER: I have biological
22
questions.
23
HEARING OFFICER TIPSORD: Then I would
24
appreciate a biological question. Thank you.
50
1
MR. ETTINGER: Here is a toughy. Do
2
fish need oxygen to breath?
3
MR. SMOGOR: Yes.
4
MR. ETTINGER: Okay. Mr. Andes and
5
you have pointed out that at times after CSO
6
events, the oxygen level reaches zero; is
7
that correct?
8
MR. SULSKI: Yes.
9
MR. HARLEY: Do all the fish die in
10
the CAWS every time this happens?
11
MR. SULSKI: Not every time.
12
MR. ETTINGER: Not every time. Thank
13
you. So some of the fish somehow find a
14
place where they can breath; is that correct?
15
MR. SULSKI: Some of the times.
16
MR. ETTINGER: Some of the times. If
17
we corrected some of the CSOs that make it
18
easier for the fish to find a place to
19
breathe some of the time, would you expect to
20
have more fish?
21
MR. ESSIG: Yes.
22
MR. ETTINGER: Thank you.
23
MS. WILLIAMS: Can I at this point --
24
HEARING OFFICER TIPSORD: Revisit your
51
1
answer?
2
MS. WILLIAMS: No, no, no, no. I
3
don't have to answer any more questions.
4
That's fine. I would like to -- We were
5
asked last time about fish kills. The word
6
fish dying came up, so maybe I see an opening
7
to enter an exhibit that we were asked to
8
provide.
9
HEARING OFFICER TIPSORD: Wonderful.
10
MS. WILLIAMS: I'm handing you a
11
package of documents that begins with a
12
letter on Metropolitan Water Reclamation
13
District of Chicago letterhead dated August
14
18, 2006. Can you identify these documents
15
for us?
16
MR. SULSKI: These are fish kill
17
reports, some including investigation reports
18
and additional data regarding dissolved
19
oxygen that the District provided to us and
20
provided to some extent to the contractor as
21
a part of the UAA process. There was a --
22
MS. WILLIAMS: At this time I'd like
23
to move that these fish kill reports that we
24
were asked for be entered as an exhibit.
52
1
HEARING OFFICER TIPSORD: Okay. Let
2
me first check that I have nine separate
3
documents. Is that correct?
4
MS. WILLIAMS: Correct.
5
HEARING OFFICER TIPSORD: There's no
6
objection, we'll enter this as Exhibit 47.
7
Seeing none, it's Exhibit 47. And that is
8
the nine documents.
9
MS. WILLIAMS: And I guess I'd like to
10
ask him one clarifying question about the
11
documents so that we can make sure the record
12
is clear. You were asked for any reports, I
13
think, on fish kills in these waters that
14
were in the Agency's possession. Can you
15
tell us if you know whether or not this is a
16
complete, all the information that may exist
17
on all fish kills in these waters?
18
MR. SULSKI: This would not be an
19
exhaustive report on all fish kills.
20
MS. WILLIAMS: Why not?
21
MR. SULSKI: Because fish kills occur
22
throughout the waterways, and people don't
23
report them.
24
MS. WILLIAMS: But do they include
53
1
everything that's in your knowledge and
2
possession related to fish kills in these
3
waters?
4
MR. SULSKI: In terms of reports, yes.
5
MS. WILLIAMS: Sorry for the
6
diversion.
7
HEARING OFFICER TIPSORD: And I think
8
we're ready then to go back with Mr. Andes.
9
MR. ANDES: Further follow-up
10
questions on DO. Would the proposed standard
11
have to be met 100 percent of the time for
12
the water body to be in compliance?
13
MR. ESSIG: No. We generally consider
14
it's in compliance if less than 10 percent of
15
the values are below -- are below the
16
standard.
17
MR. ANDES: And is that a policy? Is
18
that in the water quality standard?
19
MR. ESSIG: No, it's not.
20
MR. ANDES: Okay. And when we're
21
talking about 90 percent or 100 percent, the
22
standard needs to be met in dry and wet
23
weather conditions, correct?
24
MR. ESSIG: Correct.
54
1
MR. ANDES: Okay. As to dry weather,
2
are the existing DO standards currently being
3
met and to what extent?
4
MR. ESSIG: In which waterway?
5
MR. ANDES: Let's look at the CAWS.
6
MR. ESSIG: I'm aware there are some
7
segments that are not meeting the current
8
secondary contact in the division of aquatic
9
life standard, but I am not sure which
10
segments those are.
11
MR. ANDES: Okay. And same question
12
as to wet weather. Are areas of the CAWS
13
generally meeting the existing DO standards
14
during wet weather events?
15
MR. ESSIG: I couldn't say.
16
MR. ANDES: Is that because the Agency
17
hasn't looked at the total data to determine
18
when it's dry and when it's wet?
19
MR. ESSIG: Yes.
20
MR. ANDES: Okay. But it would be
21
logical to assume, based on testimony
22
yesterday, that during wet weather events
23
often the existing standards are not being
24
met since the DO level of zero would not be
55
1
in compliance.
2
MR. ESSIG: Yes.
3
MR. ANDES: Okay. And these new
4
standards would be, certainly as to specific
5
areas of the CAWS, more stringent than the
6
current standards, correct?
7
MR. ESSIG: Correct, at times.
8
MR. SMOGOR: I don't -- I don't know
9
if you can make such a direct comparison
10
because the proposed standards are in a
11
different form. They use different
12
statistics that aren't analogous to the
13
existing standard. The existing standard
14
right now I think is just a do not ever go
15
below value X. And the proposed standards
16
include that threshold which is a daily
17
minimum as well as additional statistics that
18
account for what we call chronic conditions,
19
not just the acute DO conditions.
20
MR. ANDES: The bottom line --
21
MS. WILLIAMS: He used value X. I
22
think we'd be clearer for the record if he
23
said for the record what the values are of
24
the current standard.
56
1
MR. SULSKI: I'm sorry. The current
2
standard, I think, help me out, please, for
3
the Cal-Sag Channel? I believe it's
4
3 milligrams per liter, and for the remainder
5
of the secondary contact and indigenous
6
aquatic life waters I believe it's four
7
milligrams per liter.
8
MR. ETTINGER: Can I just clarify?
9
Part of the area referring to as the CAWS is
10
now designated general use. Is that not
11
correct?
12
MR. SULSKI: That is correct.
13
MR. ETTINGER: So, in fact, as to
14
those areas, this is weakening the dissolved
15
oxygen standard?
16
MR. SMOGOR: Yes. It's -- well,
17
again --
18
MR. ETTINGER: Loosening the --
19
MR. SMOGOR: Just that single
20
component. If that -- the component that
21
currently says for general use do not go
22
below five milligrams per liter, that
23
analogous statistic in the standards that we
24
are proposing is a lower value.
57
1
MR. ANDES: The bottom line, isn't it
2
going to be more difficult to achieve
3
compliance under the proposed standards?
4
There are control measures that you believe
5
will be required in order to meet the new
6
proposed standards.
7
MR. SMOGOR: I guess I don't know what
8
you mean by more difficult. More difficult
9
from a -- Can you explain more difficult?
10
MR. ANDES: There are measures that
11
will have to be taken that the Agency has
12
been looking at and will go into further
13
detail about those in order to meet the new
14
proposed standards, correct?
15
MR. SULSKI: Correct.
16
MR. ANDES: Okay. Now, in terms of
17
the proposed standards, once they're adopted,
18
they will apply in terms of measuring
19
attainment of these water bodies, correct?
20
MR. ESSIG: Correct.
21
MR. ANDES: I believe the Agency has
22
discussed the fact that TARP reservoirs we
23
put on-line over the next 15 to 20 years.
24
Has the Agency considered that fact in
58
1
assessing whether standards ought to be
2
adopted with an immediate attainment date?
3
MR. TWAIT: No. I don't think the
4
Agency took attainment into account.
5
MR. ANDES: I believe there's a
6
technical memorandum that the District
7
submitted to the IEPA in the stakeholder
8
process regarding capture and treatment of
9
CSOs, although I'm not sure that's in the
10
record here. Do you know if that document
11
has been reviewed and is part of the record?
12
MS. WILLIAMS: Can you repeat the
13
document?
14
MR. ANDES: I believe it's technical
15
memorandum 3WQ submitted by the district
16
about capture and treatment of CSOs.
17
MS. WILLIAMS: I see 1WQ, 4WQ, 5WQ and
18
6WQ. I don't believe I see 3 as one of the
19
attachments to the proposal.
20
MR. ANDES: Okay. Does anyone from
21
the Agency recall reviewing that document?
22
MR. SULSKI: I don't recall.
23
MR. ANDES: If it's in the Agency's
24
possession, we'd like it to be made part of
59
1
the record. If not, we can submit it.
2
MR. SULSKI: Did you see if it's
3
included in the CAWS UAA report?
4
MR. ANDES: I don't believe it is.
5
MR. SULSKI: I was just wondering if
6
the contractor, if it was provided to the
7
contractor.
8
MS. WILLIAMS: I don't dispute that we
9
have this document. But since it was
10
prepared I'm not sure -- but since it was
11
prepared and created by the District it would
12
seem easier to me for them to submit it.
13
MR. ANDES: We can do that.
14
Has the Agency looked at
15
whether it would be possible to meet the DO
16
standards in the CAWS prior to the TARP
17
reservoirs being totally completed?
18
MR. SMOGOR: The proposed standard? I
19
don't think we've made any analyses to that
20
effect.
21
MR. ANDES: Or after TARP is completed
22
either?
23
MR. SULSKI: We haven't made that
24
analysis.
60
1
MR. ANDES: Is the Agency aware of
2
various states and EPA -- various state
3
policies and EPA policies concerning possible
4
wet weather standards?
5
MS. WILLIAMS: For what?
6
MR. ANDES: Wet weather standards
7
which, and I'll provide an example in
8
Indiana, but I know there's also EPA policy
9
that concern whether during and shortly after
10
wet weather events certain criteria would not
11
apply during which time other perhaps
12
narrative standards would be in effect?
13
MR. TWAIT: I believe the Indiana
14
criteria that you're talking about is for
15
bacteria. And if so, then, yes, I would be
16
aware of that.
17
MR. ANDES: Okay.
18
MS. WILLIAMS: Can I ask a follow-up
19
at this point?
20
HEARING OFFICER TIPSORD: Sure.
21
MS. WILLIAMS: Is anyone aware of any
22
U.S. EPA guidance or any other states that
23
have done any other wet weather criteria
24
other than for bacteria?
61
1
MR. TWAIT: I'm not aware of any.
2
MR. ANDES: Is there any reason one
3
could not do a wet weather standard for a
4
pollutant other than bacteria?
5
MR. ETTINGER: What do you mean any
6
reason? Legal reason, biological reason?
7
MR. ANDES: A legal reason.
8
MS. WILLIAMS: It would depend on --
9
legally I guess it would depend on the impact
10
to the use. And there could be. There could
11
be.
12
MR. ANDES: Okay. Thank you. We'd be
13
glad to provide the EPA guidance on how wet
14
weather standards can be developed. If we
15
provide that is the Agency willing to
16
consider a wet weather standard as part of
17
this proceeding, in particular right now for
18
DO?
19
MS. WILLIAMS: Does that have a title
20
or a number, a citation or a title?
21
MR. ANDES: It does, and I'd be glad
22
to provide it. There are actually several
23
documents I think we can provide.
24
MS. WILLIAMS: Well, I don't think I
62
1
want to answer whether we'd look at something
2
until we know what it is. I mean in theory
3
we'd look at anything, but --
4
MR. ANDES: Is the Agency willing to
5
consider developing a wet weather standard as
6
part of this proceeding to address impacts
7
of, for example, CSOs?
8
MR. SULSKI: We don't know. We'd have
9
to look at the document and see what the --
10
what hoops you have to jump through.
11
MR. ANDES: Because isn't the other
12
option to require complete compliance with
13
water quality standards by the CSOs? If we
14
don't change the standard and address the wet
15
weather issue then aren't we requiring 100
16
percent compliance with the standard for CSO
17
discharges?
18
MR. ETTINGER: Well, not every CSO
19
causes a violation of the water quality
20
standards. Is that what you're saying?
21
MR. ANDES: Really?
22
MS. WILLIAMS: Is there a question
23
pending?
24
HEARING OFFICER TIPSORD: Yes, there
63
1
is.
2
MR. ANDES: Please read it back.
3
(Record read back.)
4
MR. TWAIT: I'm not quite sure I
5
understand the question, but I think the
6
response to that would be that the water
7
quality standard would apply.
8
MR. ANDES: Okay. I'll move on from
9
there.
10
HEARING OFFICER TIPSORD: Mr. Harley?
11
MR. HARLEY: Two follow-ups: I would
12
like to call the panel's attention to dry
13
weather periods. You testified that there
14
are currently exceedances of the secondary
15
contact DO standards during dry weather
16
periods in some portions of the CAWS; is that
17
correct?
18
MR. SULSKI: Correct.
19
MR. HARLEY: Is it accurate that
20
pollutant loading from CSOs, MS4s, and urban
21
runoff are less during dry weather periods
22
than during wet weather periods?
23
MR. SULSKI: Yes.
24
MR. HARLEY: In your opinion, why are
64
1
there DO exceedances during dry weather
2
periods?
3
MR. SULSKI: Exceedances of DO
4
standards?
5
MR. HARLEY: Yes.
6
MR. SULSKI: We identified two
7
reaches: The south fork of the south branch
8
and the upper north shore channel that are
9
stagnant, and so they don't have much
10
throughput following storm events or in very
11
hot weather that dissolved oxygen sags in
12
those reaches.
13
MR. HARLEY: I also wanted to ask one
14
follow-up question to Mr. Ettinger's question
15
about general use waters presently
16
designated. What are the general use waters
17
presently designated?
18
HEARING OFFICER TIPSORD: In the CAWS?
19
MR. HARLEY: No. Under the existing
20
regulatory standards.
21
MS. WILLIAMS: Well --
22
MR. HARLEY: Within the CAWS region.
23
I'm sorry.
24
HEARING OFFICER TIPSORD: I was going
65
1
to say, I didn't think you wanted to list all
2
of them.
3
MR. HARLEY: I don't know if there was
4
a CAWS before the present regulatory.
5
MR. SULSKI: North shore channel above
6
the north side water reclamation plant, the
7
Chicago River, and the Calumet River from the
8
O'Brien loch northward to Lake Michigan.
9
MR. HARLEY: Thank you.
10
HEARING OFFICER TIPSORD: Mr. Andes?
11
MR. ANDES: Let me follow up first as
12
to the south fork and the south branch of the
13
Chicago River. And I believe this is in the
14
record. Well, we're not sure if -- There's a
15
technical memorandum, another one, that we
16
submitted, the District submitted, and I
17
think that was technical memorandum 6WQ.
18
MS. WILLIAMS: That's in the record.
19
Let me just reference it. Attachment QQ.
20
MR. ANDES: And that report which
21
concerns supplemental aeration of the south
22
fork of the south branch also known as Bubbly
23
Creek. My first question is has the Agency
24
reviewed that report in terms of the
66
1
engineering controls that would be needed to
2
meet the proposed DO standards?
3
MR. SULSKI: I know that I read it. I
4
don't know through in and throughout.
5
MR. ANDES: And in terms of the cost
6
detailed in that report, there are three
7
supplemental aeration stations at an
8
estimated capital cost of 60 to 100 million
9
to address this 1.3 mile length segment. Has
10
the Agency assessed whether that cost is
11
economically reasonable?
12
MR. SULSKI: Just that it's
13
technically feasible.
14
MR. ANDES: Thank you. Has the Agency
15
measured or is the Agency aware of any other
16
agency measurements of the sediment oxygen
17
demand at Bubbly Creek?
18
MR. SULSKI: No.
19
MR. ANDES: As I understand it,
20
according to the Attachment B, it appears no
21
fish or habitat data were considered for
22
Bubbly Creek, at least from the tables. If
23
that's the case, can you explain to me how
24
the creek was classified in terms of an
67
1
aquatic use? Does it have any IBI?
2
MR. SULSKI: Did they say that there
3
was no data?
4
MR. ANDES: On Page 5-9 in Figure 5-Q,
5
it doesn't seem to have any IBI or QHEI
6
scores for stations on Bubbly Creek. So
7
we're trying to understand what data were
8
considered in classifying the segment.
9
MR. SULSKI: If there's no data QHEIs
10
or IBIs, it was classified because of its
11
similar appearance and similar looks to the
12
Sanitary Ship Canal.
13
MR. ANDES: Can you --
14
MR. SULSKI: So I don't know of any
15
fish data if it's not in this report.
16
MR. ANDES: Is Bubbly Creek similar to
17
the Ship Canal in terms of depth, for
18
example?
19
MR. SULSKI: No. It's shallower.
20
MR. ANDES: Okay. Can you point us to
21
any place in UAA report or any other
22
documents in the record where the conditions
23
of Bubbly Creek had been assessed with regard
24
to classification into a category?
68
1
MR. SULSKI: As I'm looking from what
2
I can recollect, before I look, the
3
contractor lumped it in with in general a
4
description with the condition banks, et
5
cetera, that the Sanitary Ship Canal has and
6
the south fork has.
7
MR. ANDES: Okay. And I guess we're
8
questioning that. We're wondering why one
9
would think Bubbly Creek would be similar to
10
the Ship Canal, particularly for aquatic
11
purposes? So I'm looking for the
12
documentation of that given significant
13
differences that are fairly obvious.
14
MR. SULSKI: Well, on Page 444, the
15
contractor describes it as consisting of
16
vertical docked walls with an average width
17
and depth of 200 to 250 feet -- I'm sorry --
18
that's the -- that's the south fork. Channel
19
consists of steeply sloped earthen or rock,
20
and several locations have vertical dock
21
walls as an average width and depth of --
22
width of 100 to 200 feet, depth of 3 to 13
23
feet, respectively the channels riparian land
24
uses dominated by industrial and commercial
69
1
uses upscale single-family home development
2
is being constructed. Its current
3
designation is secondary contact.
4
MR. ANDES: I'm trying to understand
5
how it's similar to the Sanitary and Ship
6
Canal especially given that the depth is
7
substantially different.
8
MR. SULSKI: Well, they classified the
9
depth as 3 to 13 feet. They go to the south
10
branch and they classify it as 15 to 20 feet
11
deep, so there's a disparity in depth. But
12
otherwise the general conditions of the water
13
body are similar to the south fork.
14
MR. ANDES: How about the --
15
MR. SULSKI: It's a little narrower.
16
Well, the stream velocity is something that
17
we dealt with stagnant, you know, and we
18
recognize that, and that was --
19
MR. ANDES: But the question then is
20
given the stagnant nature, does that affect
21
whether it is even feasible to attain the
22
same use as the Sanitary and Ship Canal?
23
MR. SULSKI: Well, that was one of the
24
stressors that we identified in the UAA, and
70
1
that's why the south fork was -- It was
2
suggested that flow augmentation and
3
supplemental aeration should be, you know,
4
were the depth reach was a good candidate for
5
those stressor removers.
6
MR. ANDES: And was there an
7
assessment of the extent to which that will
8
lead to a certain type of population in
9
Bubbly Creek by taking those measures, that
10
they will have the same type of population
11
as, say, the Sanitary and Ship Canal or other
12
similarly-classified waters?
13
MR. SULSKI: It was basically level
14
the playing field for the south fork so it
15
had similar flow regimes and could maintain
16
similar water quality as those other systems
17
as those nearby reaches.
18
MR. ANDES: Did you consider as well
19
the pumping stations?
20
MR. SULSKI: Which pumping stations?
21
MR. ANDES: The RAPS.
22
MR. SULSKI: RAPS?
23
MR. POLL: Racine Avenue Pumping
24
Station.
71
1
MR. SULSKI: We do know the Racine
2
Avenue Pumping Station was there, and that
3
was common knowledge among the stakeholders.
4
MR. POLLS: Did you consider the
5
impact, the impact of that station when it
6
pumps?
7
MR. SULSKI: The impact of that
8
station, we have -- There was some analysis
9
done contained in the UAA report on what
10
happens to the dissolved oxygen in the south
11
fork and in the south branch and the Sanitary
12
and Ship Canal after a storm event related
13
discharge from the Racine Avenue Pump
14
Station. Basically the DO just bottoms out.
15
MR. ANDES: Okay. And does the Agency
16
think that the supplemental aeration will
17
bring that back into compliance with the
18
standards during those events when Racine
19
Avenue is pumping?
20
MR. SULSKI: I don't know about during
21
those events when the Racine Avenue Station
22
is pumping. It pumps infrequently.
23
MR. ANDES: I'm going to go back to
24
our prefiled questions, and Question I. The
72
1
UAA Attachment B stated that the CAWS is
2
functionally similar to the Cuyahoga River
3
Ship Canal in Ohio, yet the IEPA proposed DO
4
criteria are much more restrictive within the
5
CAWS than those assigned to the Cuyahoga
6
River.
7
MS. WILLIAMS: I think that's
8
testimony. I don't think that's in the
9
record anywhere.
10
HEARING OFFICER TIPSORD: Page 5A.
11
MS. WILLIAMS: No, no. The second
12
sentence.
13
MR. ANDES: Is the Agency aware of
14
what the DO criteria are on the Cuyahoga Ship
15
Canal?
16
MR. SULSKI: No.
17
MR. ANDES: Okay. So the Agency
18
hasn't assessed whether its DO criteria here
19
are more or less restrictive than the ones on
20
the Cuyahoga?
21
MR. SMOGOR: No.
22
MR. ANDES: Further testimony on that
23
issue can be provided later.
24
In determining the DO standard,
73
1
did you consider the DO model results
2
previously done by the district and the fact
3
that additional modeling will be conducted,
4
is being conducted, to evaluate integrated
5
strategies for DO compliance? And if not,
6
why not?
7
MR. SULSKI: Which model results are
8
you talking about?
9
MR. ANDES: Modeling conducted as part
10
of the integrated strategy process. Is the
11
Agency not familiar with the DO modeling
12
results provided by the District?
13
MR. SULSKI: When and where? There
14
are a number of DO modelings that have been
15
done.
16
MR. ANDES: Marquette University,
17
duflow model.
18
MS. WILLIAMS: What did you say? I
19
can't hear you.
20
MR. ANDES: Marquette University work,
21
the duflow model. I believe the report
22
prepared by Dr. Melching for the District.
23
MR. SULSKI: Is it --
24
MR. ANDES: We believe the Agency has
74
1
it.
2
MR. SULSKI: I don't know whether I've
3
read the report. I know Dr. Melching, I know
4
of modeling that's going on. I don't know
5
which modeling Dr. Melching is involved in.
6
MR. ANDES: Okay. So can we find out
7
if the Agency has that report, and, if so,
8
whether it has considered it? Although it
9
sounds like probably not, considered it in
10
controlling the DO standard.
11
MS. WILLIAMS: If you'd like him to
12
check and see if it's cited in the UAA, we
13
can.
14
MR. SULSKI: There were two reports
15
submitted by the district during the UAA
16
process which we have as attachments here.
17
If you can tell me whether this Melching
18
duflow model is in there, then I can tell you
19
that I read it. There's two reports: 4WQ
20
technical memorandums and 5WQ. One is
21
supplemental aeration and another one is
22
augmentation of flow augmentation.
23
MS. WILLIAMS: These are OO and PP.
24
MR. ANDES: Aren't those the reports
75
1
on cost? Those are the narrative reports,
2
aren't they?
3
MR. SULSKI: They're just on costs. I
4
don't know whether I read the Melching
5
report. I know that I attended some seminars
6
by the District, but.
7
MR. ANDES: All right. So the
8
question we'd like to find out what DO
9
model's information provided by the District
10
is in the record and has been considered by
11
the Agency.
12
MS. WILLIAMS: Can I ask the first
13
question? Are you saying that this model
14
that you cited is the District saying that
15
they did provide it to the Agency?
16
MR. ANDES: Yes. We believe -- There
17
is information we have provided to the Agency
18
which we believe shows complexities on the DO
19
issue that we're trying to understand whether
20
those were considered by the Agency
21
developing the standards.
22
MS. WILLIAMS: Do you know
23
approximately when that would have been
24
submitted?
76
1
MR. ANDES: About a year ago.
2
HEARING OFFICER TIPSORD: And, just
3
for the record, since we're talking about
4
this report, I assume someone is going to
5
submit it to the record?
6
MR. ANDES: One way or another.
7
HEARING OFFICER TIPSORD: Thank you.
8
MR. ANDES: I'm informed it may have
9
been part of a quarterly report to the Agency
10
regarding the UAA process.
11
The next question, and I'll
12
try to not offer any testimony. I'll skip to
13
the question directly. Did IEPA consider the
14
seasonally stagnant thermally stratified
15
conditions known to occur within the CAWS as
16
they relate to appropriate posed DO criteria?
17
MR. SULSKI: We know that they exist,
18
those conditions.
19
MR. ANDES: And were they considered
20
in developing the criteria for DO?
21
HEARING OFFICER TIPSORD: Question K.
22
MR. SMOGOR: Thanks. Is there
23
anywhere you can point to to help us? We're
24
not -- I guess we're not convinced that there
77
1
is thermal stratification conditions, but
2
we're not aware of the information that would
3
show that. Is there anywhere that you can
4
point to on the record that would show that?
5
MR. ANDES: We can certainly look at
6
that and provide any relevant information.
7
How about the seasonally stagnant part?
8
MR. SMOGOR: Given that we've proposed
9
an aquatic life use that we believe is
10
consistent with what we're calling the
11
irreversible impacts to the system, to that
12
extent I believe it's been considered.
13
MR. ANDES: And how? How has it been
14
considered?
15
MR. SMOGOR: Well, if those are -- If
16
what's called, quote, seasonally stagnant,
17
unquote, conditions are the result of the
18
irreversible -- the level of irreversible
19
human impact that has occurred in those
20
systems, then we are setting our aquatic life
21
goal consistent with that; in fact, in
22
effect, allowing for that. And then the
23
standards that we've proposed are set to
24
attain the proposed aquatic life goal. So
78
1
we've lowered our goal somewhat in terms of
2
aquatic life from the Clean Water Act aquatic
3
life goal.
4
MR. ANDES: And you specifically
5
considered the seasonally stagnant aspect as
6
part of that?
7
MR. SMOGOR: I don't know how -- if it
8
was specifically considered, but if that
9
seasonally stagnant aspect is part of what
10
we've considered the overall level of human
11
impact or results from the overall level of
12
irreversible human impact, then it is kind of
13
built into the proposed aquatic life use.
14
MR. SULSKI: What seasonally stagnant
15
do you refer to? What do you mean by that?
16
MR. ANDES: I'm not sure we need to
17
offer evidence on that at this point. I
18
think I'll take the answer and we'll move on
19
from there. We can offer evidence on that at
20
a later point.
21
The next question is whether
22
the Agency has considered the effect of
23
stratification and bidirectional flow on low
24
DO in developing the criteria?
79
1
MR. SMOGOR: Again, my point about
2
stratification relates here, as it did to the
3
prior question. And, again, if those are
4
situations that are a part of what we're --
5
what would be considered the irreversible
6
level of human impact, then indirectly
7
they're accounted for in proposing the use
8
that is lesser than the Clean Water Act
9
aquatic life use.
10
MR. ANDES: So it appears these issues
11
may not have been specifically addressed, but
12
you, the Agency's thought is that they may
13
have been addressed as part of the overall
14
assessment of the conditions of the water
15
bodies?
16
MR. SMOGOR: I think that's
17
appropriate, at least from the CAWS UAA, yes.
18
MR. ANDES: Which was based primarily
19
for aquatic, not habitat, correct?
20
MR. SULSKI: Correct.
21
MR. ANDES: Thank you. I think the
22
next question has been asked and answered and
23
the one after that.
24
The next question I had again
80
1
with the prefiled testimony was on Page 4,
2
Paragraph 1, and I think we're still on
3
Mr. Smogor's testimony --
4
HEARING OFFICER TIPSORD: Before you
5
start the next, that's Question No. 8, before
6
you start that, let's take a 15-minute break.
7
(Short break taken.)
8
HEARING OFFICER TIPSORD: I think
9
we're ready to begin with Mr. Andes'
10
Question 8.
11
MR. ANDES: This question is, I
12
believe, for Mr. Smogor. On Page 4,
13
Paragraph 1 of your prefiled testimony, you
14
state the dissolved oxygen standards be
15
proposed by the Illinois EPA are based
16
primarily on criteria and corresponding
17
justification and US EPA's national criteria
18
document published in 1986. Illinois EPA
19
used this document as a foundation from which
20
to interpret and incorporate more recent
21
information specifically applicable to the
22
dissolved oxygen needs of aquatic life in
23
Illinois waters. My question there is, what
24
was the more recent information that was used
81
1
in establishing the DO standards?
2
MR. SMOGOR: The term, quote, recent
3
information, unquote, in this case was
4
intended to mean the concepts and the
5
principles presented in the technical support
6
document that Illinois EPA and Illinois DNR
7
submitted for the most recent rulemaking for
8
dissolved oxygen in general use waters.
9
MR. ANDES: Okay. And can you explain
10
how that modified the Agency's conclusions
11
starting with the EPA criteria document as a
12
foundation? Did that change your conclusions
13
that you would have reached in using the EPA
14
criteria document?
15
MR. SMOGOR: No, no. Our -- the
16
technical support document that I just
17
referenced is the process and the thinking
18
that we use to come up with the dissolved
19
oxygen standards for the general use waters,
20
and that technical support document relied
21
heavily upon the U.S. EPA 1986 national
22
criteria document.
23
MR. ANDES: So I'm trying to figure
24
out what it added.
82
1
MR. SMOGOR: What it added. What I'm
2
referring to here in terms of recent
3
information, it added a process for
4
interpreting that information from the 1986
5
U.S. EPA National Criteria Document which I
6
believe is on the record Attachment X. And
7
it provided how we use that information as a
8
foundation, and we used more recent
9
information which is also referenced in that
10
technical support document, more recent
11
information to address what are the dissolved
12
oxygen needs of Illinois aquatic life.
13
MR. ANDES: Okay. And what
14
specifically -- what's that Illinois specific
15
information?
16
MR. SMOGOR: There is Illinois
17
specific information provided in that
18
technical support document, for instance,
19
lists of species that were determined to be
20
more dissolved oxygen sensitive than others,
21
fishes and macroinvertebrate species, for
22
example. And the technical support document
23
included a process, kind of our thinking for
24
how we arrived at the dissolved oxygen
83
1
standards that we recommended for general use
2
waters. That same thinking, that same logic,
3
those same principles and concepts which were
4
based on the U.S. EPA 1986 criteria document
5
were used in the process for this rulemaking
6
as well.
7
MR. ANDES: And you used the Illinois
8
specific list of species from the technical
9
support document in developing the CAWS DO
10
standards?
11
MR. SMOGOR: No, no, not directly, not
12
directly. But that was just an example of
13
information that was Illinois specific that
14
was in that technical support document.
15
MR. ANDES: Was there any other
16
Illinois specific information technical
17
support document that you then used in
18
developing the DO standards for the CAWS?
19
MR. SMOGOR: Not in terms of direct
20
data or lists, but, like I said, that
21
technical support document pretty much
22
defines the thought processes and the
23
justifications for proposing dissolved oxygen
24
levels at the -- for our proposed levels of
84
1
dissolved oxygen that will protect aquatic
2
life.
3
MR. ANDES: No additional data or
4
other information beyond that process from
5
the technical support document that was used
6
in this rulemaking?
7
MR. SMOGOR: Not in terms of specific
8
data, no.
9
MR. ANDES: On Page 5, Paragraph 3 of
10
your prefiled testimony, you state for the
11
CAWS Aquatic Life Use A waters, Illinois EPA
12
proposes dissolved oxygen standard similar to
13
those for the Upper Dresden Island Pool, but
14
designed to protect for less optimal fish
15
growth that is consistent with the proposed
16
aquatic life use designation. Can you define
17
less optimal fish growth?
18
MR. SMOGOR: That terminology was
19
intended to represent fish growth rates that
20
are less than those required to attain Clean
21
Water Act aquatic life goal. To attain
22
aquatic life use that we propose for CAWS A,
23
CAWS A waters do not require the same
24
long-term dissolved oxygen conditions that
85
1
would be required in waters with a higher
2
biological potential reflecting the Clean
3
Water Act goal.
4
MR. ANDES: The question is not what
5
the standards are, the question is how do you
6
define optimal versus less optimal? How can
7
we envision those two situations for a fish
8
community?
9
MR. SMOGOR: Again, it was just use in
10
the a relative sense. We realized that
11
optimal, another way of defining optimal, at
12
least in this context, would be at a level
13
that -- at a level that allows you to achieve
14
the clean water aquatic life goal.
15
MR. ANDES: That's sort of circular.
16
I'm asking you how do you define it with
17
reference to the data. How do you look at
18
two fish communities and say this one is
19
optimal in terms of growth and this one is
20
less optimal? What are the metrics you would
21
use to define that?
22
MR. SMOGOR: We didn't look
23
specifically at fish growth data, so I'm only
24
using those terms in a very general sense
86
1
here.
2
MR. ANDES: If you didn't look at fish
3
growth data, how could you make a distinction
4
between a water body where the standard is
5
designed to protect for optimal versus less
6
optimal fish growth?
7
MR. SMOGOR: We're talking about
8
levels that are -- and maybe this will help.
9
These levels are defined for levels of fish
10
growth in qualitative terms with a little bit
11
of quantitative backing are provided in the
12
U.S. EPA 1986 national criteria document,
13
Attachment X. These various levels are
14
addressed, and that's what we're basing this
15
information on. We're basing it on levels of
16
fish growth that are required to attain the
17
Clean Water Act goal and then knocking it
18
down from there saying, well, if you need
19
this amount of fish growth, an optimal amount
20
will --
21
MR. ANDES: Give me numbers. What --
22
MR. SMOGOR: I'm trying to think back
23
to that report. I think the level that we
24
are suggesting -- and, again, there's caveats
87
1
in that report. To say you can't make a
2
translation directly from a measured level
3
growth to define your goal. There are
4
caveats. But I believe that a 20 percent
5
reduction in growth rate is equivalent, or at
6
least roughly equivalent, to what I'm calling
7
less optimal here. And that's consistent, we
8
believe that's consistent with the
9
interpretations of the national criteria
10
document, Attachment X.
11
MR. ANDES: The 20 percent is in the
12
EPA criteria document?
13
MR. SMOGOR: Let me check on that. I
14
can give you a page number even. Page 30 in
15
Attachment X, and, actually, I think they
16
start to address this concept maybe on
17
Page 29 and 29 through pages -- 29 through 33
18
address those issues in Attachment X. Those
19
are the pages from Attachment X.
20
MR. ANDES: And does the less optimal
21
fish growth relate to a specific life stage
22
or to the larva or the young and/or adult or
23
all of them? How is that assessed?
24
MR. SMOGOR: The standards we propose
88
1
for CAWS A reflect an allowance for less
2
optimal growth across all life stages.
3
MR. ANDES: But the Agency hasn't
4
actually looked at any data in terms of any
5
of those life stages, right?
6
MR. SMOGOR: We have not looked at
7
growth rates for fish in the CAWS for those
8
life stages.
9
MR. ANDES: Thank you. We'll move to
10
the Use B waters with the next question. On
11
Page 6, Paragraph 2 of your prefiled
12
testimony, you state for the third set of
13
waters called Chicago Area Waterway System
14
and Branden Pool Aquatic Life Use B Waters,
15
the proposed dissolved oxygen standards are
16
consistent with the incrementally lower
17
biological potential of these waters compared
18
to cause Aquatic Life Use A waters. Please
19
define incrementally lower biological
20
potential.
21
HEARING OFFICER TIPSORD: That's
22
Question 11.
23
MR. SMOGOR: Thank you. By, quote,
24
incrementally lower biological potential,
89
1
unquote, we're referring simply to a level
2
that's lower than that is attainable in CAWS
3
A waters.
4
MR. ANDES: All right. So if you
5
define the CAWS A waters with reference to a
6
20 percent reduction in fish growth rate, are
7
you defining the Use B by a higher percent
8
reduction in fish growth rate or is there
9
some other metric?
10
MR. SMOGOR: No. I wouldn't equate
11
fish growth and biological potential here.
12
Those are two different aspects.
13
MR. ANDES: Help me understand
14
biological potential and what -- how you
15
measure that.
16
MR. SMOGOR: Biological potential is,
17
again, in reference to aquatic life goal of
18
the Clean Water Act, and biological
19
potential, it's measured -- one way to
20
measure it is with an index of biological
21
integrity.
22
MR. ANDES: Well, I thought, though,
23
that it was earlier said that IBIs really
24
weren't a good way of looking at potential,
90
1
that you were using more of the habitat
2
index?
3
MR. SMOGOR: No. I said that existing
4
conditions don't necessarily fully inform you
5
about potential conditions, but ways of
6
measuring biological condition, whether it
7
be -- well, obviously you can't measure
8
something into the future, but ways of
9
measuring biological condition include
10
something like an index of biointegrity.
11
MR. ANDES: But here we're talking
12
about biological potential, not biological
13
conditions. So the question is, are you
14
saying that B waters are defined with
15
reference to A waters simply based on their
16
QHEI scores which go toward potential or
17
something else?
18
MR. SMOGOR: The use that we proposed
19
for CAWS B represents a level of biological
20
condition that is a potential condition, and
21
we believe that is lower than the potential
22
CAWS A waters. And that determination is
23
largely based on looking at physical habitat
24
information.
91
1
MR. ANDES: It seems, and tell me --
2
help me understand this. It sounds like the
3
distinction between the Clean Water Act goal
4
and the Use A waters was premised more on the
5
less optimal fish growth, but then the
6
difference between Use A and Use B was
7
premised on these biological potential. I'm
8
trying to understand why we have different
9
metrics being used in those two situations.
10
MR. SMOGOR: I don't believe that's
11
accurate, so I'll try to give you another
12
explanation to try to clarify. Sorry.
13
When we're talking about
14
setting dissolved oxygen standards for
15
different levels of attainable biological
16
condition, on the one hand for a higher level
17
of attainable biological condition or a
18
higher level of biological potential, you
19
probably need more stringent, for lack of a
20
better term, dissolved oxygen standards, and
21
that's what we've proposed. They're a little
22
more demanding for CAWS A waters than they
23
are for CAWS B waters, and what we're
24
allowing, in both of those waters, is for
92
1
levels of DO that are even less than the DO
2
you would need if you wanted -- if you wanted
3
to attain the Clean Water Act goal. So
4
that's why I use the word incremental. Your
5
expectations are incrementally stepped
6
downward from the Clean Water Act goal. And
7
it seems to make sense to us that in some
8
aspects of these dissolved oxygen standards,
9
you can become a little less demanding as
10
well.
11
MR. ANDES: And in going down to
12
Use A, you define the extent of deviation
13
from the goal by saying less optimal fish
14
growth at that point, 20 percent reduction in
15
growth rate. So I'm trying to understand
16
then how do you define the step down to Use B
17
in the standards?
18
MR. SMOGOR: In terms of dissolved
19
oxygen, we're not -- we're not asking for any
20
or demanding any less reduction in fish
21
growth.
22
MR. ANDES: In Use B waters?
23
MR. SMOGOR: In Use B waters.
24
MR. ANDES: Why not?
93
1
MR. SMOGOR: Because we believe that
2
in setting the dissolved oxygen standards,
3
your first line of defense is to say don't
4
let fish die, prevent lethal conditions. And
5
by taking that first line of defense in the
6
CAWS A and CAWS B waters, you're accounting
7
well enough for the less acute effects,
8
you're accounting well enough for the chronic
9
effects, potential chronic effects. So there
10
really isn't -- We aren't expecting any
11
lesser fish growth in CAWS B waters than in
12
CAWS A waters. The way -- for the dissolved
13
oxygen standards, the way they're set.
14
MR. ANDES: Why not if they have lower
15
biological potential?
16
MR. SMOGOR: Well, the difference
17
between the two is we're affording for CAWS A
18
waters in terms of dissolved oxygen
19
standards. The big difference is we're
20
affording enhanced or special protection for
21
early life stages that we're not affording to
22
CAWS B waters.
23
MR. ANDES: Okay. But it sounded --
24
you say like the issue you're focussing on
94
1
there was fish growth across all life stages,
2
okay? So -- and then you said and we have
3
incrementally lower biologic potential
4
generally defined for Use B. And I'm trying
5
to understand why that only extends to the
6
early life stage issue and not across the
7
board.
8
MR. SMOGOR: I think it might be
9
helpful -- Would it be helpful if I walked
10
through kind of the rationale of these DO
11
standards from -- if I could refer to the
12
table that has these standards in our
13
statement of reasons, Page 60.
14
MR. ANDES: Absolutely.
15
MR. SMOGOR: I'll try to outline our
16
general reasoning, and probably the easiest
17
way to do this, given that it is complicated,
18
is to walk from the bottom row up. And so on
19
the bottom row of the table on Page 60, we
20
have the proposed aquatic -- or the dissolved
21
oxygen standards that we've proposed for the
22
CAWS B and Branden Pool waters. And these
23
are what I'll call the least demanding set of
24
DO standards that we've proposed. So if we
95
1
look at that bottom row, we're not affording
2
any extra or special protection for early
3
life stages, but what we're doing is we're
4
looking at later life stages and we're saying
5
we're going to try to create conditions or
6
we're creating conditions that aren't lethal
7
to what later life stages of fish. And
8
that's what that 3.5 is in terms of the daily
9
minimum, and that's also what the 4 is in
10
terms of that 7-day mean of daily minimum.
11
If you think about an average of daily minima
12
across seven days, what this is saying with
13
the four is don't let too many days in a row
14
have a minimum that is just above 3.5.
15
Because that can be just as lethal to a fish
16
as going below 3.5. So that's what those two
17
criteria together are attempting to do for
18
CAWS B waters. And by doing so, given that
19
we have the lowest expectations, so to speak,
20
we've set the lowest bar for the aquatic life
21
use in CAWS B. By protecting at those levels
22
against these lethal effects, we believe
23
we're consistent with protecting for enough
24
growth, enough fish growth that would allow
96
1
us to attain the proposed aquatic life goal.
2
And we believe that is consistent with the
3
logic and the information that's in the U.S.
4
EPA 1986 document Attachment X. So that's
5
where we're starting.
6
MR. ANDES: So their rational, those
7
standards protect against lethality will have
8
a corollary effect of addressing the fish
9
growth?
10
MR. SMOGOR: They protect for enough
11
fish growth to attain the goal that we've
12
proposed for that water, based on the
13
information, based on the information in the
14
U.S. EPA National Criteria Document.
15
MR. ANDES: That goes back to the EPA
16
criteria document and the lower growth rate
17
it sounds like you've defined for A and B
18
waters the same, the lower fish growth of,
19
say, 20 percent reduction from the base
20
number.
21
MR. SMOGOR: Yes, yes. Do you want me
22
to continue?
23
MR. ANDES: Go ahead.
24
MR. SMOGOR: The next row up which
97
1
represents CAWS A waters, again, our aquatic
2
life goal for CAWS A waters is a little bit
3
higher, although still short of Clean Water
4
Act aquatic life goal. We're saying, again,
5
don't allow for lethal conditions. And, in
6
this case, we're offering a little bit of
7
extra protection, enhanced protection for
8
lethality, to prevent lethality of early life
9
stages. And, again, we believe that's
10
consistent with the information provided in
11
Attachment X. Now we're saying to attain
12
this higher goal, we have to afford a little
13
extra protection for the early life stages,
14
and we're setting that at a daily minimum of
15
five, and that's the only difference between
16
the DO, proposed DO standards for each set of
17
waters in CAWS A, CAWS B, plus Branden Pool.
18
MR. ANDES: And the rationale, again,
19
for adding that for the Use A waters, adding
20
that particular aspect does what?
21
MR. SMOGOR: Is to provide what we
22
believe is extra protection for early life
23
stages that would allow you to attain that
24
even higher bar that you've set for the
98
1
CAWS A waters in terms of aquatic life.
2
MR. ANDES: Be specific. How does it
3
make the population different by having that
4
standard.
5
MR. SMOGOR: I'm not sure I understand
6
the question.
7
MR. ANDES: What difference does it
8
make in the community, and don't say it's
9
nearer to the Clean Water Act goal. I need
10
to know more specifically, how does that
11
community then differ, the community
12
supported by that set of standards, differs
13
from the Use B standards?
14
MR. SMOGOR: In terms of protection,
15
and, again, this all comes with the caveat
16
that we do not know the specific dissolved
17
oxygen requirements of most Illinois stream
18
fish species, we do not know the specific
19
dissolved oxygen requirements of all the life
20
stages of most Illinois stream fish species,
21
but we do know from the U.S. EPA --
22
Attachment X, U.S. EPA National Criteria
23
Document, we do know those requirements for
24
at least some of the species that will occur
99
1
in these waters; namely some of the key
2
species here with those thresholds shall
3
channel catfish and large mouth bass. In
4
terms of these criteria, if you're going to
5
protect for early life stages of fish that
6
have early life stages that are as sensitive
7
as channel cat and probably even small mouth
8
bass, then you have to keep the DO above five
9
if you're going to protect for those types of
10
early life stages.
11
MR. ANDES: Which kind of bass is
12
that?
13
MR. SMOGOR: Let me say it again. For
14
early life stages that are as sensitive as
15
the early life stages of channel catfish or
16
small mouth bass, we need to keep the
17
dissolved oxygen levels above a daily minimum
18
of five in order to protect for those types
19
of early life stages.
20
MR. ANDES: And you're saying that's,
21
again, based on the EPA criteria document.
22
MR. SMOGOR: Yes.
23
MR. ANDES: Okay. And then keep going
24
and explain how you move on from there.
100
1
MR. TWAIT: Could we just --
2
MR. SMOGOR: There seems to be some
3
fish names that are kind of wacky in
4
themselves, but there's a figure in the
5
dissolved -- in the U.S. EPA document,
6
National Criteria Document, and bear with me,
7
please. There's also narrative that talks
8
about and interprets this. But on Page 14
9
that's an important figure to some of the
10
interpretation that were reached later in
11
this document, some of the conclusions. It's
12
not the sole source of all information, but
13
this is a document that -- on Page 14 there's
14
a figure that shows that in general terms
15
when your early life stages of channel
16
catfish and early life stages of small mouth
17
bass of the few species that were tested seem
18
to be some of the more sensitive ones and
19
they need -- they've argued that in order to
20
protect for them, early life stages of
21
species that are that sensitive, you need to
22
keep dissolved oxygen up around five. That's
23
where that comes from.
24
MR. ETTINGER: Can I just -- and our
101
1
judgment between A and B is that we think
2
there's habitat suitable in the A waters to
3
have those early life stages, but we don't
4
think there's suitable habitat for the early
5
life stages in the B waters?
6
MR. SMOGOR: Yes. For fishes that
7
were -- again, we're taking some of our
8
guesses on all the other species that we
9
don't know their individual DO requirements,
10
but we're reasoning that we think it's
11
reasonable to protect for small mouth bass
12
and channel catfish in CAWS A waters to
13
protect fully for the early life stages
14
because we believe that those systems can
15
support those early life stages in terms of
16
the habitat required for spawning and rearing
17
and development of those early life stages.
18
MR. ANDES: Okay. And then explain
19
how you move up from there.
20
MR. SMOGOR: You haven't asked me
21
about Upper Dresden Island Pool.
22
MR. ANDES: I have a feeling a few
23
people would like to know.
24
MR. SMOGOR: You're jerking with me.
102
1
I figured I'd jerk with you.
2
MR. ANDES: Now we're even.
3
MR. SMOGOR: Totally a joke. I
4
respect your position.
5
MR. ANDES: No offense taken.
6
MR. SMOGOR: The next level going up
7
is Upper Dresden Island Pool, and because
8
we've proposed a use, an aquatic life use for
9
Upper Dresden Island Pool that is at a
10
minimum consistent with the aquatic life
11
goal, we've pretty much just repeated what
12
we've proposed for general use waters that
13
weren't offered the enhanced protection in
14
the other rulemaking, the docket R4-25
15
rulemaking I'm referring to.
16
MR. ANDES: Okay. Let's move on to
17
the next question in discussing the CAWS
18
Aquatic Life Use A waters. On Page 5,
19
Paragraph 3 of your prefiled testimony, you
20
state for sufficient protection under such
21
limited growth situations EPA's 1986 National
22
Criteria Document provides chronic criteria
23
in 5.0 milligrams per liter and a daily mean
24
average across seven days early life stages.
103
1
Early life stages EPA provides analogous
2
criteria of 4.0 milligrams per liter. Page
3
6, Paragraph 1 of your prefiled testimony you
4
state, Illinois judges that this level of
5
protection is sufficient to attain an already
6
limited growth potential for fish in these
7
waters. So the first question is in terms of
8
using the 3.5 instead of 3.0, why is IEPA
9
criteria more protective than the EPA
10
criteria document?
11
HEARING OFFICER TIPSORD: For the
12
record, this is Question 12A.
13
MR. SMOGOR: If you're asking about
14
the 3 and 3.5 difference, was that in perhaps
15
an earlier question, not this one in
16
particular? Just to --
17
MS. WILLIAMS: You've rephrased this
18
question, right, make it clearer? I think
19
you made it clearer.
20
MR. ANDES: I rephrased it, yes.
21
MS. WILLIAMS: It's 12A, but he's
22
being more specific.
23
MR. SMOGOR: So you're asking in terms
24
of why did we propose 3.5 as a daily minimum,
104
1
and what's the justification for that?
2
MR. ANDES: Yes.
3
MR. SMOGOR: In U.S. EPA National
4
criteria document, Attachment X, the table
5
that -- the document does provide
6
justification for 3.5, and that is addressed
7
in Table 8 on Page 34. If you look at the
8
reference to footnote No. 4, and then
9
reference from that footnote to an
10
explanation on Page 37, we believe the
11
National Criteria Document does provide
12
justification for waters that have
13
manipulatable discharges that the National
14
Criteria Document does recommend setting or
15
offer as an option setting that daily minimum
16
to a 3.5 under those situations.
17
MR. ANDES: Manipulatable discharges?
18
MR. SMOGOR: Manipulatable discharges.
19
MR. ANDES: Meaning?
20
MR. SMOGOR: I think they talk about
21
how dissolved oxygens can be -- dissolved
22
oxygen can be controlled somewhat.
23
MR. ANDES: Can't that always be --
24
You're talking about by putting more air in?
105
1
MR. SMOGOR: Yes. I think that's what
2
they're referring to here.
3
MR. ANDES: Wouldn't that be done on a
4
lot of water bodies? I'm trying to
5
understand the distinction here in terms
6
of --
7
MS. WILLIAMS: I'd like to sort of
8
clarify the way we handled the references in
9
the back of the statement of reasons. We did
10
not provide the technical support document
11
from the dissolved oxygen rulemaking. We
12
simply referred to the pending docket, and I
13
believe these issues were discussed in detail
14
before the board in that pending docket. So
15
there may be more information that we relied
16
on in that docket generally as well.
17
MR. ANDES: And will that information
18
be put into this docket? We don't have to go
19
through that whole docket, right? Any
20
information relative to this rulemaking
21
should be put into this docket. I'll request
22
that.
23
MS. WILLIAMS: So are you saying with
24
regard to the 3.5 -- Because the original
106
1
proponent of that rule IEWA proposed the 3.5
2
minimum that ended up in the final rule. So
3
I'm not sure there was very much controversy
4
about establishing 3.5.
5
MR. ANDES: Was that for the CAWS?
6
MS. WILLIAMS: For the state. And
7
that's was we relied on, what we've done for
8
the rest of the state.
9
MR. SMOGOR: That's to prevent lethal
10
conditions. And I believe that part of the
11
docket for R4-25 addresses this aspect that I
12
referenced in the tech -- sorry -- the
13
National Criteria Document, Attachment X, as
14
part of the basis for suggesting that 3.0
15
instead of 3 as the data.
16
MR. ANDES: So you're saying that in
17
your -- what did you say your explanation of
18
why you used one instead of the other?
19
MR. SMOGOR: I believe that there's
20
justification on Page 34, and by reference
21
Page 38 -- 37 and 38 of the U.S. EPA National
22
Criteria Document, Attachment X. I believe
23
there's sufficient justification in that
24
document to propose 3.5 as a daily minimum.
107
1
MR. ANDES: Next question, what is the
2
scientific basis for IEPA to propose DO
3
standards of above 5.0 milligrams per liter
4
at all times for early life stages and seven
5
day averages of daily minima of 4.0 for other
6
life stages in the CAWS? And I think in
7
particular the question is if the EPA 5.0 was
8
the daily mean average across seven days for
9
early life stages, why did the Agency decide
10
to do that as a daily minimum?
11
MR. SMOGOR: Actually, the daily --
12
The U.S. EPA National Criteria Document
13
includes both -- includes thresholds for both
14
averages of daily averages and averages of
15
daily minima so that the document -- maybe
16
I'm misunderstanding your question.
17
MR. ANDES: So when your proposal is
18
for a daily minimum of 5.0 for Use A waters,
19
are you saying that's consistent with the EPA
20
recommendation of 5.0, which seem to be more
21
of an average across seven days?
22
MR. SMOGOR: Yes. I believe that when
23
we said, again, referring to Page 60 in our
24
statement of reasons, the second row from the
108
1
bottom for CAWS A waters, we proposed for
2
early life stages protection a daily minimum
3
of 5.0. I believe that's consistent with
4
U.S. EPA National Criteria Document for the
5
reasons we talk about earlier in terms of the
6
most sensitive early life stage fish.
7
MR. ANDES: So you think the EPA
8
document recommended use of a daily minimum
9
rather than a seven-day average daily
10
minimum?
11
MR. SMOGOR: Both.
12
MR. ANDES: And both under which
13
circumstances?
14
MR. SMOGOR: I'll try to go through
15
this again.
16
MR. ANDES: What's the reason for one
17
rather than the other?
18
MR. SMOGOR: Page 60 of the statement
19
of reasons.
20
MR. ANDES: Refer me to the EPA
21
document. If the EPA document is both, tell
22
me what circumstances does it say to use one
23
or the other.
24
MR. SMOGOR: In Table 8 on Page 34 of
109
1
the U.S. EPA document -- This is a little
2
confusing because there is more in here than
3
what we're addressing. Forget about the
4
left-hand side of that table where they call
5
a cold water criteria. If you look under the
6
warm water area, you'll see at the very last
7
row of the table U.S. EPA suggests that 5.0
8
daily minimum for early life stages. That's
9
where we're getting it. Also for early life
10
stages, they propose a 7-day mean which is a
11
seven-day average of daily averages or of
12
daily means. So both of those criteria are
13
recommended for protection of early life
14
stages. And so your question is what from
15
there?
16
MR. ANDES: You're saying they
17
recommend both and you picked --
18
MR. SMOGOR: For CAWS A -- now I see
19
where you're getting. For CAWS A that level
20
of 6 assumes, and, again, that's what we're
21
calling more of a chronic condition, that's
22
not to protect necessarily against death, but
23
to protect against chronic conditions that
24
can impede you from reaching potential of the
110
1
water body which addresses, in particular,
2
for example, fish growth. That level of 6
3
there is a level that would allow you to
4
reach -- to have enough fish growth to attain
5
the Clean Water Act goal. But because we're
6
setting for something a little less than the
7
Clean Water Act goal for CAWS A waters, it
8
allows you to set a seven-day mean at a lower
9
level. And when I tried to explain in the
10
statement of reasons and in my prefiled
11
testimony that if you set that lower level
12
that's allowable, it would be automatically
13
covered by assuring that the daily minimum
14
doesn't ever go below five. So you're
15
already covered. You're already protecting
16
-- with a daily minimum of 5 CAWS A waters
17
for early life stages, you're already
18
protecting enough for enough growth. Even
19
though it's not this optimal level of growth,
20
you're protecting for enough growth to
21
achieve the proposed goal of that water body
22
that we've set.
23
MR. ANDES: Let me move on to some
24
additional questions on -- actually, as I
111
1
review my -- couple of follow-up questions on
2
dissolved oxygen, and then I think we'll be
3
done with dissolved oxygen.
4
I want to go back. There was a
5
short discussion earlier of fish kills, and I
6
want to focus in particular on Cal-Sag
7
Channel. Have fish kills been reported to
8
the IEPA in the last five years for the
9
Cal-Sag Channel?
10
MR. SULSKI: What page are you on,
11
Fred? Because I think that I remember that
12
question.
13
MR. ANDES: There is a question. I
14
think it's on Page 4 of our prefiled
15
testimony, specifically considering
16
concerning the fish kills on the Cal-Sag
17
Channel.
18
MR. SULSKI: Page 4, No. 16.
19
MR. ANDES: Yes. And the Cal-Sag
20
right now is a minimum daily DO of 3.0. So
21
the first question was how many significant
22
fish kills have been reported to the IEPA in
23
the past five years for the Cal-Sag Channel?
24
MR. SULSKI: I have not received any
112
1
reports of fish kills in the Cal-Sag in the
2
last five years.
3
MR. ANDES: Okay. So the question
4
then -- I'll skip the next couple. Can you
5
explain then why you need a higher minimum
6
daily DO standard now for the Cal-Sag
7
Channel?
8
MR. SMOGOR: Based on the information
9
that we have and the information and
10
interpretations in the U.S. EPA National
11
Criteria Document, in addition to our
12
interpretations and usage of the national
13
criteria document, Attachment X in our
14
technical support document for the previous
15
dissolved oxygen rulemaking, we believe that
16
you need to maintain a daily minimum of 3.5
17
milligrams per liter to avoid undesirable
18
lethal conditions for fish.
19
MR. ANDES: Have you seen undesirable
20
lethal conditions for fish in the Cal-Sag in
21
the last five years with the DO standard of
22
three?
23
MR. SMOGOR: I believe that if the DO
24
was three, then based on our analysis that
113
1
would be undesirable.
2
MR. ANDES: The standard right now
3
is 3, and that hasn't seemed to allow for
4
lethal situations.
5
MR. SMOGOR: Well, I guess if you're
6
saying that do fish need -- every time fish
7
die or are faced with potentially lethal
8
situations, do we have that documented? No.
9
We don't have that explicitly documented.
10
But not having evidence of either fish
11
avoidance or fish death doesn't mean that
12
fish aren't out there dying or avoiding.
13
MR. ANDES: It also doesn't mean that
14
the current standard is not protective,
15
right? I'm asking for information showing
16
that the current standard is not protective
17
on lethality.
18
MR. SMOGOR: And the information we're
19
providing is we believe that the National
20
Criteria Document would suggest under these
21
circumstances that a 3.5 should be
22
maintained. That is our basis for going 3.5.
23
MS. WILLIAMS: Do you know what the DO
24
levels are, have been over the past five
114
1
years in the Cal-Sag Channel?
2
MR. SMOGOR: No.
3
HEARING OFFICER TIPSORD: Mr. Harley
4
had a follow-up.
5
MR. HARLEY: That was my question.
6
MR. ANDES: Next question, and I think
7
part of this may have been answered. But the
8
next question in the prefiled is No. 17. The
9
IEPA proposal for Aquatic Life Use A waters
10
specifies a daily minimum DO of 5.0 from the
11
months of March through July. The first
12
question was to identify the fish and benthic
13
species living in Use A waters in the CAWS
14
that need this high of a DO concentration to
15
thrive. And from your earlier answer, I
16
guess I'm questioning are we talking about
17
small mouth bass and channel catfish?
18
MR. SMOGOR: Yeah. We don't know the
19
specific requirements across all life stages
20
and across many of the species of Illinois
21
stream fish, but in general based on the
22
information and the National Criteria
23
Document and our subsequent interpretations
24
and usage of that information, any species
115
1
whose early life stages are as sensitive to
2
low dissolved oxygen as are the early life
3
stages of channel catfish need DO maintained
4
at 5.0 milligrams per liter or above.
5
MR. ANDES: So are there channel
6
catfish and small mouth bass in the Cal-Sag
7
Channel? Does the Agency have any
8
information on that?
9
MR. SMOGOR: Yes. I think there's
10
some available information in Attachment B
11
which is the CAWS UAA report and --
12
MR. ANDES: Okay.
13
MR. SULSKI: The MWRD 2001-2006
14
attachment -- 2005.
15
MR. SMOGOR: I think that's
16
Exhibit 28.
17
MS. WILLIAMS: Speaking of Exhibit 28,
18
last time we apparently provided an
19
incomplete copy of it. Can we enter it now,
20
please.
21
HEARING OFFICER TIPSORD: Sure. Roy?
22
MR. SULSKI: Page 4-98 in
23
Attachment B.
24
MS. WILLIAMS: I'm handing you what's
116
1
titled Metropolitan Water District of Greater
2
Chicago Ambient Water Quality Monitoring
3
Program Sampling Stations.
4
HEARING OFFICER TIPSORD: If there's
5
no objection, we'll mark this as Exhibit 48.
6
Seeing none, it's Exhibit 48.
7
MS. FRANZETTI: Do I understand
8
correctly that it effectively replaces
9
Exhibit 28? Is it just a complete copy of
10
Exhibit 28?
11
MS. DIERS: Yes.
12
MS. WILLIAMS: Yes. We can replace
13
Exhibit 28, if you want.
14
MR. ANDES: Exhibit 28 is now
15
inoperative.
16
MR. SULSKI: I misspoke on the table
17
in Attachment B. It's on Page 4-93. Table
18
4-58 is the Cal-Sag Channel.
19
MR. ANDES: And what does that show
20
you?
21
MR. SULSKI: It shows you the presence
22
of small mouth bass, channel cat, white
23
sucker, among other species.
24
MR. SMOGOR: And in Exhibit 28, which
117
1
we've just augmented --
2
HEARING OFFICER TIPSORD: Replaced.
3
MR. SMOGOR: Replaced, I'm sorry.
4
There is, again, presence of channel catfish
5
and small mouth bass in Calumet Sag Channel.
6
MR. ANDES: How many?
7
MR. SMOGOR: At least the page I'm
8
looking at. I'm not sure if these are single
9
fish samples or not.
10
HEARING OFFICER TIPSORD: What's the
11
page number?
12
MR. SMOGOR: I hope they're the same
13
ones. Page 4 of 5 in the table titled
14
Cal-Sag Channel at the top or real near the
15
top of your Page 4? Actually, let me look to
16
make sure I have the right page. I'm going
17
to hold off and make sure I'm looking at the
18
current exhibit.
19
MS. WILLIAMS: When you change the
20
margins on the tables, sometimes they don't
21
print out the same number of pages.
22
MR. SMOGOR: For example, on Page 9 of
23
14 in the current exhibit -- Exhibit 48 which
24
was just distributed, the ninth page in, it's
118
1
actually identified as Page 9 of 14 at the
2
bottom. If I'm on the right page, the very
3
last section of that table, the bottom
4
section of that table says Calumet Sag
5
Channel provides sufficient data from Calumet
6
Sag Channel. I'm not sure. Right offhand
7
I'm not -- these are summaries of the number
8
of fish collected, I guess, by years here.
9
MR. ANDES: Let's go into that a
10
little bit. The first station on the
11
Cal-Sag, Station 58, are there any channel
12
catfish or small mouth bass?
13
MR. SMOGOR: No, not in that list
14
there. Ashland Avenue. Is that what you're
15
referring to?
16
MR. ANDES: Right. The next one which
17
is a SEPA aeration station, am I right that
18
there are -- were two small mouth bass and
19
four channel catfish?
20
MR. SMOGOR: Yes. That's what the
21
table is indicating.
22
MR. ANDES: Turning the next page to
23
Station 59, Cicero Avenue, any channel
24
catfish or small mouth bass?
119
1
MR. SMOGOR: No.
2
MR. ANDES: The next station which is
3
a SEPA aeration station, there are -- there
4
were four small mouth bass and no channel
5
catfish. Am I right?
6
MR. SMOGOR: Right.
7
MR. ANDES: And at Station 43 at
8
Route 83, there were no channel catfish or
9
small mouth bass?
10
MR. SMOGOR: Correct.
11
MR. ANDES: Okay. And at SEPA station
12
No. 5, there were 15 channel catfish, no
13
small mouth bass. Am I right?
14
MR. SULSKI: Yes.
15
MR. ANDES: So the only channel
16
catfish and small mouth bass are around the
17
aeration station, correct?
18
MR. SULSKI: According to this table,
19
yes.
20
MR. ANDES: Thank you.
21
HEARING OFFICER TIPSORD: Can I ask a
22
question? I'm getting very confused looking
23
at these tables, and now the header we have
24
one of two, 9 of 14, 9 of 14, and then
120
1
umpteen of 13. So we have four different
2
sets of data here. They all have -- at least
3
two of these have the exact same heading.
4
Total fish pounds -- okay versus number. I'm
5
sorry. I stand corrected.
6
MS. WILLIAMS: It is confusing. There
7
are four spreadsheets.
8
HEARING OFFICER TIPSORD: It is very
9
confusing. And in the future we need to do
10
one of two things: We either need to number
11
them 1 through 25, or if we're going to
12
submit separate documents as one group
13
exhibit like we did with the previous
14
exhibit, we need to separate them so that we
15
all know that we're looking at separate
16
documents. This is going to be very
17
difficult for people looking at this
18
transcript to figure out exactly where we
19
were just now.
20
MS. WILLIAMS: I agree. These were
21
copied on Tuesday and we didn't really have
22
time to go through and --
23
HEARING OFFICER TIPSORD: That goes
24
for everybody. Because, keep in mind, when
121
1
people are reading the transcripts and going
2
back and looking it at this, and although it
3
may be fresh in our minds today, it's going
4
to be true of all of us, it would be real
5
helpful if we can do that. So thank you.
6
Sorry, Mr. Andes.
7
MR. ANDES: A couple of follow-up
8
questions on previous testimony.
9
MR. HARLEY: I'm sorry. Before we
10
leave, are we leaving the subject of bass in
11
the Cal-Sag?
12
MR. ANDES: We're still going to be
13
talking about fish.
14
MR. HARLEY: Could I ask a question
15
specific to bass in the Cal-Sag?
16
MR. ANDES: Go ahead.
17
MR. HARLEY: Thank you. Are any of
18
the agency witnesses aware of the fact that
19
the National Bassmaster's Classic was --
20
tournament took place in the Calumet?
21
MR. SULSKI: Yes.
22
MR. HARLEY: And was that on or around
23
July 2000?
24
MR. SULSKI: I don't remember the
122
1
exact date.
2
MR. HARLEY: Thank you.
3
MR. ANDES: Was that on the Cal-Sag
4
Channel?
5
MR. SULSKI: It was the entire Calumet
6
system.
7
MR. HARLEY: Then a follow-up. Do you
8
know whether or not bass were caught during
9
the Bassmaster's Classic that was undertaken
10
in the Calumet?
11
MR. SULSKI: I don't know. I know
12
that there was a weigh-in station at the
13
Alsip or Worth boat dock. I don't know.
14
MR. ANDES: Do we know if they were
15
small mouth instead of large mouth?
16
MR. SULSKI: I don't know.
17
MR. ANDES: Thank you. A follow-up
18
question. On January 29 in the testimony of
19
Mr. Sulski, Page 213, the statement was that
20
a species like channel cat would have a DO
21
requirement that would fit a certain sort of
22
habitat. Can you explain exactly how the DO
23
requirement would be related to certain sort
24
of habitat?
123
1
MR. SULSKI: These were questions
2
related to CDM's use of the word sport fish,
3
it looks like. Please repeat your question.
4
I just wanted to read the context.
5
MR. ANDES: Sure. So the statement
6
was made that a species like channel cat
7
would have a DO requirement that would fit a
8
certain sort of habitat. So I'm trying to
9
understand how their DO requirement is
10
related to a certain sort of habitat.
11
MR. SULSKI: The use designation that
12
we're proposing.
13
MR. ANDES: As a scientific matter,
14
how does the DO requirement in terms of what
15
they need to grow, not die, et cetera, how
16
does that relate to a certain sort of
17
habitat?
18
MR. SULSKI: I'm not sure how these
19
got linked. So I would suggest that -- I
20
don't know how to answer your question.
21
MR. ANDES: So there's no real basis
22
for linking them, right?
23
MR. SMOGOR: For linking what?
24
MR. ANDES: DO requirement and a
124
1
certain sort of habitat.
2
MR. SMOGOR: I think if you're setting
3
DO requirements for early life stages of
4
fish, you make the assumption that those
5
early life stages can be produced in those
6
waters. I mean you're making those waters,
7
you're relying on those waters to support
8
those early life stages.
9
MR. ANDES: But the DO requirement of
10
the species doesn't have anything to do with
11
the habitat nature. That's all I'm saying.
12
They're two separate issues.
13
MR. SMOGOR: Their physiological
14
requirements?
15
MR. ANDES: Yes.
16
MR. SMOGOR: No.
17
MR. ANDES: Thank you. Let's move to
18
the March 10 morning testimony by Mr. Smogor,
19
and this will be on Pages 74 and 75 of that
20
testimony.
21
MS. WILLIAMS: Just a second.
22
MR. ANDES: We're going to be talking
23
about fish sizes, if that helps.
24
MR. SULSKI: We found the pages.
125
1
MR. ANDES: The statement here was
2
based on the small sizes of some of the
3
individuals captured, one could deduce that
4
there must be some kind of spawning going on
5
in those waters because of the small sizes of
6
fish present, usually small sizes compared to
7
the adult size of species. So the first
8
question is are there specific criteria or
9
length/width ratios which are used for
10
various species to characterize small fish as
11
subadults?
12
MR. SMOGOR: I don't know of
13
specifics.
14
MR. ANDES: So what methodology was
15
used to decide whether a small fish was
16
simply small versus a young fish?
17
MR. SMOGOR: In other words, you're
18
asking is it possible that the small sizes I
19
referred to could have been adult
20
reproductive fish?
21
MR. ANDES: Yes. How did you decide
22
whether smaller fish were subadults or not?
23
MR. SMOGOR: I was basing it on my
24
personal experience with sampling fishes and
126
1
capturing fishes.
2
MR. ANDES: Do you know of specific
3
protocols that are normally used to analyze
4
fish data and determine which individuals are
5
likely to be subadult?
6
MR. SMOGOR: Not offhand. I haven't
7
applied those, no, not in this situation.
8
MR. ANDES: Okay. Has IEPA indicated
9
on the fish data spreadsheets which
10
individuals they decided were subadult and
11
how many of them were there?
12
MR. SMOGOR: No. We haven't
13
identified that specifically.
14
MR. ANDES: There is no way for us to
15
go back and check in terms of which ones you
16
thought were subadult?
17
MR. SMOGOR: I was given some general
18
observations of these sheets. If you're
19
looking for potential examples I can try to
20
look through them now and point out what I
21
believe are probably subadult fish sizes.
22
MR. ANDES: No. I'm interested in the
23
record. I'm interested in what the Agency
24
considered in deciding -- in making its
127
1
determination.
2
MR. SMOGOR: My testimony that you're
3
referring to on the record was based on my
4
general knowledge and based on my review of
5
these sheets, but not based on any kind of
6
formal analysis.
7
MR. ANDES: Okay. And I'm done with
8
DO and related issues. I have other issues
9
on bacteria and on other pollutants, but I
10
wanted to stop there and let you know that.
11
HEARING OFFICER TIPSORD: Okay. Well,
12
then let's go ahead and break for lunch now.
13
(Off the record.)
14
(Lunch break taken.)
15
HEARING OFFICER TIPSORD: Mr. Andes?
16
MR. ANDES: I'll move to prefiled
17
questions for Mr. Twait, and I believe these
18
are on Page 31 of our prefiled questions.
19
The second question, on Page 2 of your
20
prefiled testimony you state in most cases
21
identical numeric or quality standards are
22
necessary to protect all of the proposed
23
aquatic life use designations. Exceptions to
24
this are temperature, dissolved oxygen, and
128
1
ammonia.
2
First, if you based the
3
specific numeric standards on species known
4
to exist in the CAWS, can you identify the
5
parameters for which this was done?
6
MR. TWAIT: The Agency looked at the
7
potential of the waterway, not necessarily at
8
species known to exist. However, for some of
9
the toxics, and by toxics I mean metals that
10
we relied on the National Criteria Document,
11
we removed the cold water species and species
12
not native to Illinois in the development of
13
the proposed standards.
14
MR. ANDES: Can you say which
15
parameters that applied to?
16
MR. TWAIT: I can say they do -- that
17
does apply to copper, and I know it applies
18
to some of the other general -- some of the
19
other parameters where we took the water
20
quality standard from general use, but I
21
don't know off the bat, off the top of my
22
head, which ones those are.
23
MR. ANDES: Okay. Well, I would like
24
to request a list of those parameters.
129
1
MS. WILLIAMS: I think that we had
2
testimony on this already, Fred, at the last
3
hearing, and I think he did provide more
4
specific -- I mean I can go back to the
5
transcript, too, and find it if that will be
6
sufficient for your question.
7
MR. ANDES: I don't remember this
8
specific question being answered.
9
So there was some pollutants for
10
which you removed the cold water species and
11
species not known to exist in Illinois. And
12
what was the rationale for doing that for
13
some and not other pollutants?
14
MR. TWAIT: We did that wherever the
15
national criteria documents would have been
16
using the cold water species as -- in the
17
national criteria document. If it -- we
18
would have removed cold water species
19
wherever practical from our water quality
20
standards.
21
MR. ANDES: Okay. And from what
22
you're saying it sounds like it was not any
23
attempt to differentiate between species
24
known to exist in Illinois and species known
130
1
to exist in the CAWS?
2
MR. TWAIT: For the proposal we had
3
not done that specifically. And part of the
4
reason is the way that the National Criteria
5
Document works, the development of the
6
standards works, is that if you remove too
7
many species, the criteria get more
8
protective because you're taking out --
9
you're taking out -- you're increasing your
10
multiplier because your species are going
11
down.
12
MR. ANDES: Okay. Let me move to
13
Question D. And this really relates to
14
Question E as well. Why is it that
15
temperature, DO, and ammonia there are
16
different standards for the different aquatic
17
life uses but not for the other parameters?
18
MR. TWAIT: Because the National
19
Criteria Document treated those -- well, the
20
National Criteria Document treats some
21
parameters separately such as dissolved
22
oxygen. The National Criteria Document talks
23
about when you have sensitive life species
24
present or absent. It talks about suboptimal
131
1
growth. Ammonia does something similar. It
2
talks about when you have sensitive life
3
species present or absent. And
4
temperature --
5
MR. ETTINGER: You've been saying
6
sensitive life species. I think you mean
7
stages.
8
MR. TWAIT: Early life stages. I'm
9
sorry. Thank you. And for temperature we've
10
developed an RAS list. For the toxics, the
11
National Criteria Document does not go into
12
whether or not there's early life stages
13
present or absent, and it does not make some
14
of those differentiations.
15
MR. ANDES: But if we have waters
16
where we believe that they cannot attain the
17
Clean Water Act uses, wouldn't it make sense
18
to consider whether the standards for variety
19
of pollutants should be different for those
20
waters?
21
MR. TWAIT: Yes. I think where we
22
could do that we did, and one example would
23
be cadmium where the National Criteria
24
Document, when we looked at it with the water
132
1
quality standard would be and we compared it
2
to what was in the water, we went back and
3
looked to the sufficiency of our general use
4
and --
5
MR. ANDES: I'm looking more for
6
distinctions between, say, A waters and B
7
waters, and wouldn't it make sense to have
8
different standards for those two kinds of
9
waters if the biological potential of those
10
waters are different?
11
MR. TWAIT: Well, the major difference
12
between the A and B waters is whether early
13
life stages are present or absent, and the
14
metals do not differentiate between presence
15
or absence of early life stages.
16
MR. ANDES: That may be the difference
17
in how you did the standards. The difference
18
in uses, as I recall from testimony earlier
19
today from Mr. Smogor, was that the
20
Category B waters have incrementally lower
21
biological potential. So my question is if
22
they have incrementally lower biological
23
water potential, why aren't the standards for
24
copper or other pollutants different as they
133
1
are for DO, ammonia, and temperature?
2
MR. TWAIT: Well, I think if you have
3
early life stages present, it's incrementally
4
better than if you have a spot where there's
5
no early life stages. So I think that there
6
is some -- it is incrementally better and
7
part of that is whether the early life stages
8
can be supported or not.
9
MR. ANDES: But the Agency's proposal
10
makes the Use B waters meet the same copper
11
standard as the Use A waters. So my question
12
is why do that if the early life stages are
13
not present? Or, you know, if those Use B
14
waters don't have the same biologic
15
potential, is it right to make them meet the
16
standard that the Use A waters need to meet?
17
MR. TWAIT: Well, the standard is
18
based on toxicology information, and they
19
don't differentiate between when you have
20
early life stages present or absent.
21
MR. ANDES: The EPA numbers are
22
guidance, correct?
23
MR. TWAIT: Yes.
24
MR. ANDES: Let me move on to another
134
1
question.
2
MR. ETTINGER: Let me follow up on
3
that. Are you aware of any situation in
4
which you are using a criteria to protect,
5
that was designed to protect the species
6
which isn't present in the B waters.
7
MR. TWAIT: Could you restate that?
8
MR. ETTINGER: Are you aware of any
9
situation in which you are using a criteria
10
in the B waters as to adult fish that is not
11
necessary to protect adult fish which are in
12
those waters?
13
MS. WILLIAMS: And by situation, do
14
you mean parameter?
15
MR. ETTINGER: As to any pollutant.
16
As to any fish.
17
MR. TWAIT: I don't think we've
18
included any parameters that are not
19
necessary. Some of the parameters in the
20
species list, they could have a species in
21
there that will not be found in the Use B
22
waters.
23
MR. ANDES: Okay.
24
MR. ETTINGER: Do you know of any such
135
1
fish now?
2
MR. TWAIT: Off the top of my head,
3
I'd have to say no.
4
HEARING OFFICER TIPSORD: Mr. Andes?
5
MR. ANDES: Next question. On Page 3
6
of your prefiled testimony you state that
7
there are a number of water quality standards
8
where the most recent U.S. EPA National
9
Criteria Document was found to be the same as
10
or consistent with the current water quality
11
standard on the books for the general use
12
designation. Given that the CAWS are not
13
general use waters and do not support biotic
14
indices as high as found in general use
15
waters, do you expect that these standards
16
are more protective as is necessary for, for
17
example, you say Use B waters?
18
MR. ETTINGER: I object to the
19
question. There's a suggestion in the
20
question that every general use water in
21
Illinois is of high quality. We've got some
22
whopping bad general use waters around this
23
state. I just want to make sure that his
24
question doesn't imply to every general use
136
1
water in the state is of high quality.
2
HEARING OFFICER TIPSORD: I don't know
3
that I would interpret that, but your point
4
is taken.
5
MR. HARLEY: I also would object on
6
the basis that we heard testimony earlier
7
today that there are portions of the CAWS
8
that are now designated as general use
9
waters.
10
MR. TWAIT: It's -- it's possible that
11
some of the numeric standards are more
12
protective than they need to be. It would
13
seem logical that if you were protecting for
14
a lower use water quality standards would be
15
less stringent than you would protect for
16
higher use. However, as I mentioned before,
17
the way the standards are set, you have
18
the -- when you take out too many species,
19
the standard becomes more stringent. And I
20
also mentioned that -- and this was
21
definitely the case for Cadmium. And, as I
22
mentioned before, we removed the cold water
23
species and species not native to Illinois.
24
MS. FRANZETTI: Mr. Twait, is the
137
1
reason, if you could just explain a little
2
bit, is the reason that when you get down to
3
a certain smaller number of species the
4
standard starts to get -- or the value that
5
is calculated for the proposed standard gets
6
stricter is because of some sort of higher
7
multiplier is used? Can you just explain why
8
that happens when you reduce the number of
9
species you're working with?
10
MR. TWAIT: As I understand it, part
11
of it is the multiplier goes up and part of
12
it is because the standard deviation
13
increases.
14
MS. FRANZETTI: Is that -- Is the
15
underlying intent of that the assumption that
16
if you only have a certain number of species
17
there must be a greater degree of uncertainty
18
with respect to what you're trying to protect
19
by the proposed standard? I'm really asking
20
do you know what the underlying logic is?
21
MR. TWAIT: I don't know what the
22
underlying logic -- I mean that sounds
23
reasonable.
24
MS. FRANZETTI: And I'm just going in
138
1
the direction of in a case like this where
2
you do know that, in fact, a limited number
3
of species can exist in a water body like the
4
CAWS, is there flexibility built into the
5
guidance that you're using that would allow
6
you to adjust so that you don't get that
7
result when you're using a limited number
8
species?
9
MR. TWAIT: I could not, when I was
10
dealing with cadmium specifically, could not
11
find any type of wiggle room for any way to
12
get around that that was supportable.
13
MS. FRANZETTI: Thank you.
14
HEARING OFFICER TIPSORD: Mr. Andes?
15
MR. ANDES: We may come back to that
16
issue a bit, but let me move on to the next
17
question on No. 4. On Page 4 you state that
18
the federal criterion states that a pH range
19
of 6.0 to 6.5 will be unlikely to be harmful
20
to fish unless the free carbon dioxide
21
present is in excess of 100 parts per
22
million. The question is why does the IEPA
23
choose the proposed standards of 6.5 to 9.0
24
instead of requiring pH of 6.0 to 9.0 and
139
1
free carbon dioxide less than 100 ppm which
2
should be acceptable under the federal
3
criteria?
4
MR. TWAIT: Well, the way that you
5
rephrased it from 6 to 9 and free carbon less
6
than 100 parts per million isn't a good way
7
to capture what the federal criteria would
8
say. You've got a valid point. From 6.5 to
9
9 the federal criteria says that those pH
10
levels are good. When the pH is between
11
6 and 6.5, it's only good when the carbon --
12
it's only protective when the carbon dioxide
13
is less than 100 parts per million.
14
MR. ANDES: So does that say that
15
perhaps the standard could be rephrased?
16
Sounds like the issue is specifically that
17
range, the 6.0 to 6.5. And I think what
18
we're saying is why not, in some way, say in
19
the standard that pH range in that range will
20
be allowed if the carbon dioxide is not over
21
100 ppm? So the question is would the Agency
22
consider that change given that that would be
23
allowed by the federal guidance?
24
MR. TWAIT: I think it is a very
140
1
valuable or very valid point that we could do
2
that. We didn't because actually I didn't
3
think of it. So I think we can definitely go
4
back and take a look at that because that's
5
what the federal criteria would allow.
6
MR. ANDES: Thank you. I'll move on
7
to Question 6. And, actually, I'm going to
8
directly to 6A. It's a specific question
9
concerning dissolved cadmium. In light of
10
the fact that the proposed hardness-based
11
chronic standard equation for dissolved
12
cadmium often results in a concentration very
13
close to the method detection limit, are the
14
compliance data for this constituent
15
reliable? Or would the Agency consider
16
addressing this issue?
17
MR. TWAIT: Well, with the hardness
18
value of something that we're going to find
19
in the CAWS waterways somewhere around 205 or
20
so, the water quality standard is 0.002
21
milligrams per liter which is two micrograms
22
per liter. And you're talking about a method
23
detection level of .3 micrograms per liter.
24
So I'm not certain that it's all that close.
141
1
Had we gone with the National Criteria
2
Document, this would be a much -- then the
3
relationship between the method detection
4
level and the water quality standard or the
5
National Criteria Document would be very
6
close, but I don't think they're very close
7
for what we've proposed.
8
MR. ANDES: So let me clarify. So
9
what is the number you're thinking comes out
10
of the equation and for which segment are you
11
talking about?
12
MR. TWAIT: I plugged into our
13
equation a hardness of 205 and I got 0.002
14
micrograms per liter -- milligrams per liter
15
which is two micrograms per liter.
16
MR. ANDES: And that hardness value is
17
from?
18
MR. TWAIT: That hardness values is
19
what we consider the critical hardness value,
20
and I believe that came from the lower Des
21
Plaines River.
22
MR. ANDES: Did you consider -- One,
23
I'd like to see the source of the data, the
24
next question.
142
1
MS. WILLIAMS: Source of what data?
2
Because I think that might be in the record.
3
Are you talking about hardness data?
4
MR. ANDES: Right.
5
MS. WILLIAMS: I do believe we have
6
hardness data in the record. Does that sound
7
right or no?
8
MR. ANDES: Probably not for the lower
9
Des Plaines from the District. I'd just like
10
to know.
11
MS. WILLIAMS: Maybe I was jumping
12
ahead as far as what I thought you were
13
interested in doing with the data. I'm
14
sorry.
15
MR. ANDES: The first question is I'd
16
like to get the source of the 205, and then
17
where did that come from; if it's in the
18
record, great. I'd just like to know where.
19
And then the second question is was there
20
other data for the CAWS and what would these
21
numbers come out like for the CAWS?
22
MR. TWAIT: The critical hardness data
23
that I mentioned, I just took a -- we use a
24
critical hardness data when we suggest permit
143
1
limits in an MPDES permit. And the critical
2
hardness data is developed by taking the
3
10 percentile low flows and take the
4
10 percentile hardness during those low
5
flows. And for the station that we have in
6
Joliet for the lower Des Plaines River is
7
205. I believe the hardness values for the
8
CAWS, I think everything was above 100.
9
MR. ANDES: That critical hardness
10
calculation is what you use in calculating
11
permit limits?
12
MR. TWAIT: Yes. That's the hardness
13
value that I used. Although when you take
14
samples, you would use the hardness value of
15
your individual sample.
16
MR. ANDES: And when assessing whether
17
the water has attained the standards or not,
18
you would tend to use the actual data?
19
MR. TWAIT: Yes.
20
MR. ANDES: I'm sorry for the delay.
21
So this was the critical hardness information
22
using that formula for the lower Des Plaines,
23
and as to the CAWS --
24
MS. WILLIAMS: Can you say what
144
1
formula? You said that.
2
MR. ANDES: I'm sorry. The formula
3
that Mr. Twait just described was used with
4
data from the lower Des Plaines to get the
5
205 number that he used in his calculation,
6
correct?
7
MR. TWAIT: Yes. Although I shouldn't
8
have mentioned that it was the critical
9
hardness data. Basically what -- I used the
10
number, the hardness value of 205 in the
11
water quality standard to develop a water
12
quality standard for cadmium. It doesn't
13
really matter where I got the 205 other than
14
the fact that that's one of the relative
15
numbers in the receiving.
16
MR. ANDES: I'm just trying to figure
17
out what exactly is the standard going to be
18
that we have to figure out here can it be
19
attained. And the next step is what permit
20
limits will it be based on. But in the first
21
place I'm trying to understand if we're
22
talking about a standard, a standard, not a
23
permit limit but a standard that could be,
24
depending on the hardness data, in the way
145
1
you use the hardness data, very close to the
2
method detection limit.
3
MR. ETTINGER: What's the lowest
4
hardness we're finding in the CAWS?
5
MR. TWAIT: I believe when we looked
6
at it it was 100.
7
MR. ETTINGER: Okay. Would it be a
8
big job to figure out what your cadmium
9
standard would come out to if you used 100
10
hardness?
11
MR. TWAIT: It will take me a few
12
minutes.
13
MR. ETTINGER: Maybe we can do that at
14
a break or something, and then we'll get an
15
idea as to the worst case scenario. Would
16
you be okay with that?
17
MR. ANDES: Obviously we've done
18
calculations that indicate the numbers are
19
pretty low, so I'm not offering evidence
20
here, so.
21
MR. ETTINGER: You can offer a
22
hypothetical based on hardness being a hybrid
23
and let's hear what the number is.
24
MR. ANDES: Jennifer Wassick (ph.) For
146
1
the District.
2
MS. WASSICK: So we calculated for
3
cadmium and found some levels that are within
4
either exactly the method detection limit or
5
within .00011.
6
MR. POLLS: What was the hardness
7
value?
8
MS. WASSICK: We used the actual
9
hardness value that was measured in the
10
water.
11
MR. POLLS: What was it?
12
MS. WASSICK: What was it?
13
HEARING OFFICER TIPSORD: Here is what
14
we need you to do, unless we're going to
15
swear you in right now. We need you to tell
16
us what was the highest hardness level you
17
used, and say I used -- sorry -- the lowest,
18
and I used that number and plugged it into
19
the formula. Does this sound like the
20
correct total.
21
MS. WASSICK: For instance, we have
22
some north shore channel data central stream
23
in 2005 for the hardness was about 140 and
24
the cadmium was .004. So that concentration
147
1
would be in violation of the standard.
2
MS. WILLIAMS: Can we be sure and be
3
clear about which formula you plugged that
4
into?
5
MS. WASSICK: Sure. It's the proposed
6
standard for dissolved cadmium for the --
7
MR. TWAIT: Could you read the number,
8
the equation?
9
HEARING OFFICER TIPSORD: You know
10
what, we need to swear you in. We're getting
11
too many facts in here not to swear you in.
12
(Witness sworn.)
13
HEARING OFFICER TIPSORD: Go ahead.
14
MS. WASSICK: So you want me to read
15
the equation?
16
MR. TWAIT: Or the -- just the A value
17
and the B value.
18
MS. WASSICK: So this would be, I
19
don't have a page number, but this would be
20
from the proposed standards and the table for
21
the American Water Quality Standards For the
22
Protection of Aquatic Organisms.
23
HEARING OFFICER TIPSORD: Excuse me.
24
Off the record for a second.
148
1
(Off the record.)
2
MS. WASSICK: We can provide these
3
eventually for the record, but I would just
4
say we have done the calculations for what
5
these standard would be based on, these
6
equations that were proposed, and then we've
7
compared them to what our values would be
8
based on our hardness and cadmium data and
9
we've identified several that are very close
10
to the method detection limits. So we will
11
provide that eventually, but.
12
MS. WILLIAMS: We were just concerned,
13
make sure that you're using the right
14
formula. Because those numbers sound very
15
low to us, but we can do that after.
16
MR. ETTINGER: Could I request that --
17
Is there any number we need other than their
18
cadmium number and the hardness number to run
19
your formula?
20
MR. TWAIT: No.
21
MR. ETTINGER: We just request what
22
the cadmium number is, the hardness number
23
that you had, and Mr. Twait can run it
24
through you his formula and see what number
149
1
he comes up with.
2
MS. WASSICK: This was apparently also
3
provided to IEPA with a letter. So I don't
4
know. It could be part of the record. I'm
5
not sure.
6
MR. TWAIT: Well, this is my concern.
7
There was some data provided by the District
8
and they were comparing their samples from
9
April 2005 to November 2006, and they were
10
giving the hardness value, zinc, cadmium and
11
nickel; and then the chronic standards
12
soluble for zinc, cadmium, nickel, and those
13
numbers were based on the National Criteria
14
Document that we had originally proposed.
15
After receiving this data, we went back and
16
looked at the screen data, and that's when we
17
decided to use the current general use
18
standard. So it had changed from the day
19
that the District had provided their data.
20
MS. WILLIAMS: And that's Exhibit,
21
Attachment BB to the statement of reasons has
22
that submittal from MWRD in it?
23
MR. ANDES: Let me clarify something
24
now. The issue in this question was not
150
1
whether the concentrations are over the limit
2
or over the standard. The issue was whether
3
the concentrations are close to the measured
4
detection number which wouldn't change, which
5
would not change depending on where the
6
Agency standard is. The issue is an
7
analytical one in terms of whether if
8
we're --
9
MR. TWAIT: But I believe it would
10
depend.
11
MR. ANDES: You're saying your numbers
12
are going to be much higher than that because
13
of the change in the proposal.
14
MR. TWAIT: Exactly. So I don't think
15
our proposed numbers are close to the method
16
detection level. And I will throw together
17
some numbers during our break.
18
MR. ANDES: Thank you. I'll continue.
19
The next question, and I
20
believe this was No. 7. On Page 9 of your
21
prefiled testimony you state that there is
22
currently no chloride standard applicable to
23
the secondary contact and indigenous aquatic
24
life uses segment of the CAWS and lower Des
151
1
Plaines River. Proposed chloride water
2
quality standard is exactly the same as a
3
current general use water quality standard of
4
500 milligrams per liter. The general use
5
chloride standard has not been updated since
6
the original adoption. U.S. EPA's National
7
Criteria Document recommended a criterion
8
maximum concentration of 860 milligrams per
9
liter and a criterion chronic concentration
10
of 230 milligrams per liter. Given that you
11
indicate that the federal criterion allows a
12
maximum concentration of 860 milligrams per
13
liter and given the highly urban environment
14
and limited aquatic habitat found in the
15
CAWS, my question is what's the rationale for
16
setting the CAWS standard at 500 which is
17
over 40 percent lower than the current
18
federal criterion?
19
MR. TWAIT: This was partially based
20
on the work that is ongoing for the sulfate
21
rulemaking. The proposed sulfate water
22
quality standard is based on a maximum
23
chloride limit of 500. The Agency believes
24
that this value of 500 is basically
152
1
equivalent to the national criteria since
2
it's a one-number standard between acute and
3
chronic numbers of 860 and 230.
4
MR. ETTINGER: 860 is an acute number,
5
230 is a chronic number, so doesn't that make
6
a difference in the way when we write permits
7
to gauge compliance.
8
MR. TWAIT: It does. The chronic
9
number is a not to exceed ever, and -- or the
10
acute standard is not to exceed, the chronic
11
standard can be met by an average. The acute
12
standard has to have -- You can only have
13
mixing in a zone of initial dilution, and the
14
chronic standard can use the entire mixing
15
zone with a one number standard we allow that
16
to use the entire mixing zone.
17
MR. POLLS: How many samples do we
18
need to determine if the chronic is complied?
19
MR. TWAIT: I think one value above
20
not to exceed limit would be a violation.
21
MR. POLLS: I thought the acute was
22
always one sample instantaneously, the
23
chronic is four samples. How does
24
Illinois -- How do you know if you're in
153
1
compliance with the chronic? Is it one
2
single sample?
3
MR. TWAIT: For this we're not
4
proposing a chronic, but for a chronic
5
standard it would be based on four
6
consecutive samples that are representative
7
of the time period that you're taking.
8
MR. ANDES: If you're not proposing
9
chronic, but the federal acute is 860,
10
explain to me again why -- I understand
11
that -- I understood the sulfate issue,
12
although we can come back to that. But I
13
want to understand again if the 500 is
14
something that's going to be tested on a
15
one-time basis and the federal number is 860,
16
why the 500 instead of the 860 if we're not
17
doing chronic.
18
MR. TWAIT: Well, with the national
19
criteria document, if you want to adopt the
20
860, I believe the 230 as a chronic standard
21
comes with it.
22
MR. ANDES: Can you cite me to where
23
they demanded that you have to do both? Is
24
there support for saying, well, we can only
154
1
do the 500 and substitutes for both of them,
2
but if we had the 860 we have to do the 230
3
as well?
4
MR. TWAIT: I'm not sure of the
5
answer. I'm not quite sure I can answer
6
that, but my understanding is -- well, I'll
7
just say I don't know.
8
MR. ANDES: Okay. On the -- Let me go
9
back for a second to just to clarify one
10
thing. On the cadmium issue we've brought
11
information showing that the concern we had
12
exists with regard to the proposed standards,
13
not only the standards that were suggested
14
earlier. So we'll provide that information.
15
I think that's been provided to the Agency
16
before, but we'll -- we will -- it has not?
17
We will provide that.
18
Next question, No. 11, the
19
seasonal ammonia standard is for the period
20
of March through October, while the enhanced
21
seasonal DO standard is March through July.
22
If both are supposed to be protective of
23
early life stages, why do they not have the
24
same time period?
155
1
MS. WILLIAMS: What number did you
2
say, Fred? I'm sorry.
3
MR. ANDES: Eleven.
4
MR. TWAIT: I don't know that I can
5
answer that specific question. The general
6
use rulemaking for ammonia and dissolved
7
oxygen are both on the record, they're both
8
available on the Board's web page. The
9
decision about why those particular months
10
would apply separately --
11
MS. WILLIAMS: I mean I don't know --
12
I hate to answer this question, because it's
13
technical, but I was involved in both and
14
there were very specific factors brought out
15
in both about why different seasons were
16
appropriate. And there's support in the
17
different criteria documents for different
18
levels of protection that -- Roy may be able
19
to explain the DO a little bit better why we
20
came up with that number. And also from a
21
practical standpoint the critical periods
22
were different as well, but.
23
HEARING OFFICER TIPSORD: Can you tell
24
me, Miss Williams, if that was delineated in
156
1
the Board's opinions --
2
MS. WILLIAMS oh, absolutely, in each
3
one. In ammonia opinion which, I don't know,
4
is that 2002? I think the ammonia opinion
5
was from 2002 and then, of course, the DO
6
opinion is only a couple months old.
7
MR. ANDES: I'm trying to understand
8
the difference.
9
MS. WILLIAMS: And I guess I'm just
10
trying to explain it's complicated, and I'm
11
not sure --
12
MR. ANDES: That doesn't mean we don't
13
get an explanation.
14
MS. WILLIAMS: I think I answered your
15
question.
16
MR. ANDES: I didn't hear the
17
explanation.
18
MEMBER RAO: I recall in one of the
19
hearings in DO there was extensive discussion
20
about the early life stages between ammonia
21
and DO, because the same question was asked.
22
And if you go back, you will hopefully find
23
those cites and maybe you can provide it.
24
MR. ANDES: That would be helpful.
157
1
MS. WILLIAMS: The District was at
2
that hearing, too, right, Mr. Rao?
3
MEMBER RAO: Yes.
4
HEARING OFFICER TIPSORD: But in
5
fairness, Mrs. Williams, this is a different
6
rulemaking, and it's a prefiled question. So
7
we really need to --
8
MS. WILLIAMS: Absolutely, absolutely.
9
We will submit citations to the rulemakings.
10
I think Mr. Rao is right. We can just use DO
11
to kind of explain both.
12
HEARING OFFICER TIPSORD: And if it's
13
transcripts, you need to provide pages of the
14
transcripts.
15
MS. WILLIAMS: Absolutely.
16
HEARING OFFICER TIPSORD: Thank you.
17
MR. ANDES: The next question, No. 12,
18
and I'll rephrase it a bit. If there are
19
excursions from the mercury standards and
20
sources other than wastewater discharges are
21
the likely cause for that, how does the
22
Agency expect to deal with that issue?
23
MR. SULSKI: We will continue with our
24
programs of fish flesh analysis and
158
1
consumption advisories. We have missions
2
reductions programs, TMDLs may be necessary.
3
We will continue with our programs of
4
nonpoint source pollution control BMPs,
5
household hazardous waste collection
6
programs, mercury thermometer exchange
7
programs, a list of a few of the -- of our
8
intentions.
9
MR. ANDES: I guess the scenario is if
10
there are seepages (sic.) in the water body
11
on mercury, and because a lot of sources use
12
that water and then recirculate it and put it
13
back in, their discharges will also end up
14
with violations on mercury even if they
15
haven't actually contributed any mercury.
16
How would the Agency deal with those issues?
17
MR. TWAIT: Well, for those issues
18
where they're withdrawing water and not
19
adding mercury and trying to discharge, then
20
there are -- I believe it was 304-103. Let
21
me make sure of that. That deals with
22
background concentration. Yes. It's 304.103
23
that deals with background concentrations
24
when you're withdrawing water from a water
159
1
body and discharging it back to the same
2
water body without adding the constituent to
3
it.
4
MR. ANDES: Okay. I believe I'm done
5
with our questions on those issues, and I
6
have a few left on recreation and bacteria
7
issues. These are follow-up questions.
8
MS. WILLIAMS: Are you done with the
9
prefiled and you want to ask follow-up?
10
MR. ANDES: I believe I am. I'm done
11
with the prefiled questions.
12
On recreation and
13
disinfection, if the Agency, and I'm
14
paraphrasing earlier testimony, does not know
15
exactly the extent to which disinfection will
16
reduce risk to recreators, how will the
17
Agency measure the effectiveness of
18
disinfection in addressing water quality
19
issues and attainment of the recreational
20
uses?
21
MR. TWAIT: I think to measure the
22
effectiveness it would be to compare bacteria
23
measurements that are prechlorination versus
24
postchlorination in the receiving stream and
160
1
try to pick out days that CSOs were not
2
happening to make that type of comparison.
3
MR. SULSKI: It's a two-prong
4
question, if I understand you, and correct me
5
if I don't. The effectiveness of
6
disinfection will be gauged at the effluent.
7
So there will be a permit limit and there
8
will be monitoring at the effluent. The
9
effectiveness in the waterway, we're not
10
proposing a water quality standard, so it's
11
hard.
12
MR. ANDES: So the real issue is --
13
MR. SULSKI: You don't have a
14
standard.
15
MR. ANDES: So the question is other
16
than reducing bacteria levels in the
17
discharge, has the Agency assessed and how
18
will the Agency assess whether that
19
disinfection actually translates into water
20
quality that effectively is protective given
21
all the other sources?
22
MR. ESSIG: We would not assess at
23
this point, since there's no water quality
24
standard assessment in terms of the
161
1
integrated report.
2
HEARING OFFICER TIPSORD: Mr. Harley?
3
MR. HARLEY: Just to clarify before
4
you go on. Mr. Twait, you said that you
5
would assess impacts pre and
6
postchlorination. Isn't it correct that the
7
Agency's regulatory proposal does not mandate
8
chlorination, it mandates disinfection?
9
MR. TWAIT: That's correct. I guess
10
what I should have said is if you want to
11
measure the effectiveness of chlorination on
12
the receiving stream, the way to do it would
13
be -- I'm sorry -- disinfection. I'm way too
14
tired. Would be to measure the receiving
15
stream before and after chlorination --
16
disinfection. I'm sorry.
17
MR. HARLEY: But under the Agency's
18
proposal, the regulated entity would have the
19
option to choose the method of disinfection
20
so long as it met the numeric limit; is that
21
correct?
22
MR. TWAIT: Absolutely.
23
MR. HARLEY: Thank you.
24
HEARING OFFICER TIPSORD: Mr. Andes?
162
1
MR. ANDES: Thank you. Let's go to
2
testimony on disinfection issues.
3
Particularly on January 29, Mr. Sulski talked
4
about recreational activities that occur and
5
that the Agency has to protect. And it's on
6
pages 223, 224, and particularly discusses
7
the Agency's responsibility to protect water
8
quality versus physical safety.
9
And the first question I had
10
is it correct to say that the Agency views
11
its responsibility as ensuring water quality
12
that protects recreational uses but does not
13
concern itself with physical safety to the
14
recreational users?
15
MR. SULSKI: We're not a physical
16
safety agency.
17
MR. ANDES: Who is?
18
MR. SULSKI: The Chicago Police Marine
19
Unit, the U.S. Army Corps of Engineers slash
20
Coast Guard, I'm not sure which branch is
21
involved there.
22
MR. ANDES: And has the Agency
23
discussed these issues with those agencies to
24
talk about possible physical safety risks
163
1
from increased recreational uses of these
2
water bodies?
3
MR. SULSKI: We discussed the proposed
4
recreational uses with those agencies to see
5
the intent of the meeting, and it is -- the
6
minutes of the meeting are included. We
7
discussed whether any of our intentions in
8
the proposal interfered with any regulatory
9
responsibilities of theirs.
10
MR. ANDES: And that was one meeting?
11
MR. SULSKI: Yes.
12
MR. ANDES: And that was a number of
13
years ago?
14
MR. SULSKI: Yes.
15
MR. ANDES: Do you remember -- I know
16
it's in the record. I just don't remember
17
exactly when it was.
18
MR. SULSKI: It was in the 2003/2004
19
time frame.
20
MR. ANDES: Okay. Now, it is accurate
21
to say that one of the factors that the
22
Agency is required to consider in doing UAA
23
are physical factors, correct?
24
MR. SULSKI: Correct.
164
1
MR. ANDES: I'm just thinking of
2
whether I have anything to follow up beyond
3
that.
4
Since that meeting, there have
5
been some changes in the proposed uses. Am I
6
right?
7
MR. SULSKI: Since that meeting?
8
MR. ANDES: Since that meeting with
9
the other agencies, the proposed standards
10
came out and reflect some different use
11
designations than were being discussed at
12
that point. Some areas were changed from
13
nonrecreation to incidental contact, I
14
believe.
15
MR. SULSKI: Correct.
16
MS. WILLIAMS: But we didn't have that
17
at the time, did we?
18
MR. SULSKI: No. The question is did
19
they change since we had those meetings. And
20
the answer is yes, there were some changes in
21
the use -- recreational use designation.
22
MR. ANDES: And there have been no
23
further meetings since then?
24
MR. SULSKI: No.
165
1
MR. ANDES: I believe we're done.
2
HEARING OFFICER TIPSORD: Thank you
3
very much. Mr. Safley for ExxonMobil?
4
MR. SAFLEY: Yes, ma'am. As I stated
5
yesterday, the majority of our questions have
6
been asked and answered. We have seven or
7
eight that are left.
8
MS. DIERS: ExxonMobil.
9
MR. SAFLEY: Tom Safley on behalf of
10
ExxonMobil. Once the Agency gets a chance to
11
pull out the documents, I'll direct you to
12
the questions.
13
The first question that we had
14
not had a chance to ask is on Page 5, Roman
15
Numeral II, C2 is the question. Per the Aqua
16
Nova UAA, it should say, the lower Des
17
Plaines River continues to be a highly
18
modified water body that does not resemble
19
its pre-urbanized state. Furthermore, the
20
UAA stated that while there were improvements
21
it could not find the lower Des Plaines River
22
to be capable of full attainment of the
23
aquatic life and recreational goals of the
24
Clean Water Act or unimpacted waters in the
166
1
foreseeable future. Since this contradicts
2
the findings of the later Yoder report used
3
for the Agency's proposal, what findings have
4
required the Agency to propose water quality
5
standards more stringent than the State's
6
current general use requirements for this
7
water body?
8
HEARING OFFICER TIPSORD: And just for
9
purposes of the record, we're now talking
10
about Attachment A the UAA on the lower Des
11
Plaines?
12
MR. SAFLEY: Yes.
13
HEARING OFFICER TIPSORD: And the
14
Yoder report you were referencing is?
15
MS. WILLIAMS: Can you hang on a
16
second, Tom?
17
MR. SAFLEY: Sure, of course.
18
MS. WILLIAMS: I think there's
19
something in your question that --
20
MS. DIERS: I believe it's Exhibit 15.
21
Is that what you've concluded?
22
MR. SAFLEY: I'm sorry. I don't have
23
that.
24
HEARING OFFICER TIPSORD: It was
167
1
attached to his testimony, right.
2
MR. SAFLEY: Yes.
3
HEARING OFFICER TIPSORD: Yes, it's
4
Exhibit 15 or 16. I'll find out.
5
MR. ETTINGER: I just want to object
6
to the presumption in the question that the
7
standards proposed are necessarily more
8
stringent than the general use standards.
9
MS. DIERS: I believe it's 15.
10
HEARING OFFICER TIPSORD: Well,
11
actually, the question is -- Let me just
12
clarify so I'm sure I get what you're
13
objecting to, Albert.
14
MR. ETTINGER: It says given that
15
the --
16
MR. SAFLEY: And to respond to the
17
objection, it's my understanding from the
18
testimony in the rulemaking that there are at
19
least some standards that are proposed,
20
temperature and some other standards that are
21
based on national -- on U.S. EPA guidance
22
that are more stringent than the current
23
general use standards, for example.
24
MR. ETTINGER: And there are some that
168
1
are less.
2
MR. SAFLEY: Understood. And I'm
3
focussing on -- The question should have been
4
rephrased. I'm focussing on those where the
5
standard being proposed by the Agency is more
6
stringent than general use.
7
MR. SULSKI: I would need some -- We
8
need some clarification. Because when you
9
say highly modified water body, if you could
10
tell us where that says that. Because we
11
need to find out what context that you
12
mentioned that. Because when we're talking
13
about the lower Des Plaines, we have two
14
distinct water bodies that are -- that
15
there's a great disparity between.
16
MR. SAFLEY: Sure. And the references
17
I have for that first sentence are Pages 1-4
18
and 1-16 of the Aqua Nova UAA.
19
MR. SULSKI: And the other statement,
20
your question, it did not find the lower Des
21
Plaines River to be capable full attainment
22
of aquatic life and the recreational goals of
23
the Clean Water Act for unimpacted waters in
24
the foreseeable future, you need to know
169
1
where you're getting that from. Because,
2
again, there's two reaches here in the lower
3
Des Plaines and there are different
4
statements and conclusions that apply to
5
each.
6
MR. SAFLEY: I think in response,
7
Mr. Sulski, to your request for citations on
8
that second sentence, the easiest place to
9
look is Chapter 9, Pages 9-1 and 9-2. And
10
certainly I understand your point that
11
there's a different discussion there with the
12
between the Brendan Pool and the Dresden
13
Island Pool, and the question may have not
14
sufficiently differentiated.
15
MS. WILLIAMS: Are you interested in
16
both pools, Tom, or are you asking about one
17
pool or the other? Maybe that will help us
18
answer.
19
MR. SAFLEY: Let me try to get around
20
this issue and attack this in a different
21
way, by starting with this question: In
22
evaluating the lower Des Plaines, and the
23
Agency can separate the answer by pool if
24
that makes it easier, did the Agency rely on
170
1
both the Aqua Nova findings and the findings
2
of Chris Yoder?
3
MR. SULSKI: Yes.
4
MR. SAFLEY: Okay. Does that answer
5
apply to both pools or to one or the other?
6
MR. ESSIG: I'm sorry. What was your
7
last question?
8
MR. SAFLEY: When responding yes to
9
that question, the Agency relied on both Aqua
10
Nova's findings and the findings of Chris
11
Yoder. Does that answer apply to the entire
12
lower Des Plaines or is that answer confined
13
to only a portion, just to clarify since
14
we've raised this issue.
15
MR. TWAIT: Chris's report, the
16
thermal portion of that provided options for
17
the temperature water quality standard and
18
not specifically for a designated use.
19
MR. SAFLEY: Right.
20
MR. SMOGOR: Are you referring also to
21
the other Yoder report that addresses --
22
MS. WILLIAMS: What other Yoder
23
report?
24
MR. SMOGOR: I'm sorry. It's not a
171
1
Yoder report. You're right. It's an MBI
2
report. I guess we're not clear when you say
3
the Yoder information what information you're
4
receiving.
5
HEARING OFFICER TIPSORD: I think he's
6
referring to Exhibit 16 which was attachment
7
to the testimony by Mr. Yoder, and that was
8
in response Mr. Twait gave --
9
MR. SAFLEY: It looks like we're both
10
waiting on the other.
11
MR. TWAIT: I'm sorry. Can you just
12
ask your question in a --
13
MR. SAFLEY: Sure. And now that we've
14
clarified which Yoder report we're talking
15
about, I'm giving Albert some credit here, at
16
least. Did the Agency rely on that
17
Exhibit 16 as well as the Aqua Nova findings
18
in evaluating the entire portion of the lower
19
Des Plaines River that is at issue in this
20
rulemaking?
21
MS. WILLIAMS: I'd like to clarify
22
exhibit numbers real quick again, because I
23
think it will help. Exhibit 15 and
24
Exhibit 16. Exhibit 15 is Mr. Yoder's
172
1
temperature report specific to the lower Des
2
Plaines River, while Exhibit 16 is the report
3
for SANCO (ph.) that he relied on developing
4
Exhibit 16. But we're assuming we're talking
5
about the Yoder report which is Exhibit 15.
6
HEARING OFFICER TIPSORD: Sorry. My
7
fault.
8
MR. TWAIT: And the Agency did rely on
9
that report for Branden Pool and Upper
10
Dresden Island Pool, and the Agency relied on
11
the data of the UAA report that was done by
12
Aqua Nova.
13
MR. SAFLEY: Does the Agency consider
14
the findings of those two different sources
15
to be consistent regarding their conclusions
16
on the conditions of those waters?
17
MR. TWAIT: The thermal report, as I
18
mentioned, did not give -- It gave
19
temperature options for those systems, and
20
the options ranged from consistent with Clean
21
Water Act, what he considered general use
22
with 47 species all the way down to eight
23
species, but those were options provided in
24
that report. And he did not -- Mr. Yoder did
173
1
not make a recommendation as to which numbers
2
to use.
3
MR. SAFLEY: Okay. And I think what I
4
should do is direct the Agency's attention to
5
Page 22 of the statement of reasons. This
6
may be what's causing some of the confusion,
7
and obviously we should have included the
8
citation here in the question. But this is
9
where the language that's included in these
10
first two sentences comes from. The
11
second -- The first full paragraph on Page 22
12
of the statement reads, it's the second
13
sentence, it is clear from the UAA that the
14
lower Des Plaines River continues to be a
15
highly modified water body and does not
16
resemble its pre-urbanized state. And then
17
further on, the last sentence in that
18
paragraph, while there has been improvement
19
that potential exists for additional
20
improvement, the UAA did not find the lower
21
Des Plaines River to be capable of full
22
attainment of the aquatic life and recreation
23
goals of the Clean Water Act for unimpacted
24
waters in the foreseeable future.
174
1
And I think what I'm picking
2
up from your answers is that those
3
statements -- and I guess this is what I want
4
to ask: Does the Agency agree with those
5
statements or should those statements have
6
been qualified depending on what pool in the
7
lower Des Plaines we're talking about? Maybe
8
that's what's causing my confusion.
9
MS. WILLIAMS: Yes. Thank you.
10
MR. SAFLEY: So that's my question.
11
Does the Agency agree with -- these
12
statements appear to be directed to the
13
entire lower Des Plaines. Is the Agency in
14
agreement with that, or does the Agency feel
15
those statements --
16
MS. WILLIAMS: No. And I think we've
17
already discussed that this is a little
18
confusing. If you want us to -- We should
19
probably go through that again.
20
MR. SAFLEY: I don't recall.
21
MR. SMOGOR: We believe that the UAA
22
has -- did conclude that the Clean Water Act
23
aquatic life goal is attainable in the Upper
24
Dresden Island Pool portion of the lower Des
175
1
Plaines River, and that's a clarification for
2
this statement.
3
MR. SAFLEY: That obviously the
4
prefiled questions were written before the
5
testimony, and we hadn't linked that up, so
6
let me skip to our next question. I think
7
that clears up the confusion.
8
Our next question has not been
9
asked. It's on Page 8 of our prefiled
10
questions. It's Question No. 8. Given that
11
the Aqua Nova's UAA proposed a quote modified
12
use, closed quote, standard for the lower Des
13
Plaines River due to its current use, why has
14
the State's rulemaking proposal set general
15
use water quality standards, and I would add
16
or more stringent water quality standards,
17
for each of the following constituents. And
18
then there's a list there of ten or twelve
19
constituents.
20
HEARING OFFICER TIPSORD: Which you
21
need to read.
22
MR. SAFLEY: I'm happy to. I didn't
23
know if I wanted to throw them all out there
24
or go one by one or how the Agency wanted to
176
1
attack that.
2
MR. SMOGOR: Again, just to clarify,
3
when you say that the Aqua Nova UAA proposed
4
a, quote, modified use, unquote standard for
5
lower Des Plaines River, we'd like to clarify
6
that the UAA, even if they used those terms
7
modified use, is not saying that aquatic life
8
use at Clean Water Act levels cannot be
9
attained in Upper Dresden Island Pool.
10
MR. SAFLEY: Okay. Well, let's just
11
make the question a broader one then cutting
12
off the first clause. What is the basis for
13
the State proposing general use or stricter
14
water quality standards for each of the
15
following constituents? And we can start
16
with arsenic.
17
MR. TWAIT: Well, I first would like
18
to start off by saying that it was a
19
management decision to adopt the most current
20
criteria available and note that the majority
21
of these current criteria can be met in a
22
waterway currently.
23
MR. SAFLEY: If you can identify which
24
of the ones on the list could be met
177
1
currently, please.
2
HEARING OFFICER TIPSORD: Before you
3
do that, we need to read the list in. We
4
never read the list in. We said arsenic.
5
Now he's going to start giving a subset of a
6
list that we don't have in the --
7
MR. SAFLEY: That's fine. The listing
8
here is arsenic, cadmium, chromium, copper,
9
cyanide, lead, mercury, nickel, total
10
residual chlorine, zinc, benzene, ethyl
11
benzene, toluene and xylene.
12
HEARING OFFICER TIPSORD: Thank you.
13
Go ahead.
14
MR. TWAIT: The arsenic standard is
15
not based on general use. It is based on the
16
National Criteria Document which is more
17
current than our existing general use
18
standard. Cadmium is the same.
19
MS. WILLIAMS: I just want to clarify.
20
You asked him -- We read the list in, but
21
right before you asked him to identify which
22
ones can be met, correct?
23
MR. SAFLEY: Yes.
24
MS. WILLIAMS: Is that more important
178
1
than him going through what's based on what?
2
HEARING OFFICER TIPSORD: I think we
3
want both in the record.
4
MR. SAFLEY: Yes. So that's why I
5
hadn't --
6
MR. TWAIT: I'll start out by saying
7
that according to the UAA report, all of
8
these can be met. Arsenic is based on the
9
National Criteria Document, cadmium is the
10
same as the general use, chromium is based on
11
the National Criteria Document, copper is
12
based on the National Criteria Document,
13
cyanide is the same as general use, lead is
14
the same as general use, mercury is the same
15
as general use, mercury aquatic life is the
16
same as general use -- Let me back up.
17
Mercury aquatic life is based on the national
18
criteria, mercury human health is based on
19
the general use. The nickel is the same as
20
general use, total residual chlorine is the
21
same as general use, zinc is the same as the
22
general use. And the four remaining -- well,
23
benzene, ethyl benzene, toluene, and xylene
24
are based on general use.
179
1
MS. WILLIAMS: Just to repeat, you
2
think all of those standards are currently
3
being met in these waters?
4
MR. TWAIT: According to the analysis
5
by the UAA contractor, yes.
6
MR. SAFLEY: That's what I was going
7
to next ask you about. On Page 2-32 of the
8
Aqua Nova UAA, there is a Table 2.6,
9
Parameters Meeting Illinois General Use
10
Standards.
11
HEARING OFFICER TIPSORD: That's
12
Attachment A.
13
MR. SAFLEY: And Federal Criteria.
14
And I see some of those, these parameters
15
here: Arsenic, cadmium, chromium, trivalent,
16
cyanide, lead, nickel, and zinc. However,
17
there's a discussion on the next couple of
18
pages starting at 2-33 and 2-34 of parameters
19
that do not meet the Illinois, at least the
20
Illinois general use standards or threaten,
21
it says. Included there are copper, mercury,
22
and then I was having trouble locating
23
information on total residual chlorine. So
24
that's what I want to try to understand is
180
1
these pages from the Aqua Nova UAA, in light
2
of your response that they're all in -- your
3
understanding is they're all currently
4
meeting the proposed standards?
5
MR. TWAIT: For the copper, in
6
Appendix A2-34, Table 2.7, the District
7
samples have a little note there that they
8
measured total metals only and water quality
9
standard is in dissolved. And if you flip
10
back to Page 2-32 -- I don't see a list of
11
where the Agency samples came off.
12
As this question relates to
13
copper, I'll refer you to Page 72, our
14
statement of reasons. In the lower Des
15
Plaines UAA study, copper was identified as a
16
parameter that did not meet the water quality
17
standards at the locations on the lower Des
18
Plaines River analyzed by the MWRDGC while
19
the Illinois EPA location indicated
20
compliance. Copper compliance was not found
21
to be concerned in the CAWS. And the MWRDGC
22
samples were based on total copper, whereas
23
IEPA's samples were based on dissolved.
24
MR. SAFLEY: So the Agency felt that
181
1
it could rely on its dissolved copper samples
2
and that based on that, copper was in
3
compliance in the lower Des Plaines?
4
MR. TWAIT: That was the decision that
5
was made.
6
MR. SAFLEY: What about mercury?
7
MS. WILLIAMS: Which one? Mercury
8
human health or --
9
MR. SAFLEY: Maybe we have a
10
difference in terminology between the Aqua
11
Nova UAA and the Agency. But, again, at
12
Table 2.7 on Page 2-34 Aqua Nova lists
13
mercury as a parameter not meeting the
14
Illinois general use standard or threatened.
15
MR. TWAIT: With regards to mercury,
16
when I go back and look at this, MWRDGC data
17
was once again total metals. However, I
18
don't know that the Agency's -- wait a
19
minute. For mercury I'll refer you to
20
Attachment A, Page 2-34, and it's in his
21
text. It's not a table, but he does list the
22
reference site and five particular samples,
23
four of them are MWRDGC sampling points, and
24
for the acute standard, the compliance is 96
182
1
percent or above. And for the chronic, for
2
the Agency samples, all the measurements were
3
below the detection level and the compliance
4
of the chronic standard was 95 percent and
5
above for the district samples.
6
MR. SAFLEY: Does that mean that the
7
Agency considers compliance of 95 percent or
8
above to mean that the mercury standard is
9
currently being met in the lower Des Plaines?
10
MR. TWAIT: I believe the Agency's
11
decision was that that was not any worse than
12
anywhere else in the rest.
13
MR. SAFLEY: What about total residual
14
chlorine?
15
MR. TWAIT: I don't believe that total
16
residual chlorine has been measured, although
17
total residual chlorine disappears pretty
18
rapidly from the environment meeting up with
19
organic and pathogens and will be removed
20
from the water. So it would be unlikely to
21
measure total residual chlorine unless you
22
were downstream of somebody that was
23
discharging chlorine.
24
MR. SAFLEY: And I certainly can't
183
1
take issue with the chemistry of it. But
2
your statement earlier that all of these
3
parameters, your understanding was, were
4
that the proposed standard were currently
5
being met in the lower Des Plaines. I'm just
6
trying to understand the basis of that
7
statement with regard to total residual.
8
MR. TWAIT: The basis of that
9
statement is that if you go out and measure
10
chlorine, if you're not within somebody's
11
mixing zone, chlorine will not persist in the
12
receivings --
13
MR. SAFLEY: What about with regard to
14
the betext (ph.) compounds?
15
MR. TWAIT: We do not take betext in
16
the receiving stream, so I was mistaken on
17
whether or not that would be in compliance
18
simply because the Agency doesn't know.
19
MR. SAFLEY: So not that you know
20
there's not compliance, the Agency just
21
doesn't have any information that it is in
22
compliance?
23
MR. TWAIT: Correct.
24
MR. SAFLEY: Okay. With regard to the
184
1
parameters other than the betext parameters
2
where the Agency has concluded that the water
3
body is in compliance, just to clarify, so
4
I'm clear, what the Agency is saying is if
5
the water body is in compliance with those
6
parameters, the Agency feels that it's
7
appropriate to propose either a general use
8
standard that would protect that compliance
9
or a more stringent standard, or I guess
10
without regard to how stringent the standard
11
that's from the latest national recreation;
12
is that correct?
13
MR. TWAIT: The Agency made the
14
decision that it was going to provide -- or
15
to have the most current standard, and it
16
really didn't matter whether it would be met
17
or not.
18
MR. SAFLEY: That's what I was trying
19
to understand was the nexus between whether
20
or not the -- or if there is a nexus, between
21
whether or not the parameter is in compliance
22
currently and whether or not the Agency went
23
with that current standard? And what you're
24
saying is the compliance was not an issue?
185
1
MR. TWAIT: Not directly, because we
2
were proposing water quality standards to
3
protect the use.
4
MR. SAFLEY: Okay.
5
MR. TWAIT: And I'll preface that with
6
cadmium, we did something a little bit
7
different. We didn't adopt the National
8
Criteria Document. We adopted the general
9
use.
10
MR. SAFLEY: Okay. And with regard
11
to -- when you say protection of use, I
12
understand you to be saying the aquatic life
13
use.
14
MR. TWAIT: Yes.
15
MR. SAFLEY: And so is it correct then
16
to understand that the Agency concluded as to
17
each of those parameters, either proposing
18
general use or the national criteria, it was
19
necessary to protect the use that the Agency
20
concluded should be met in the lower Des
21
Plaines River?
22
MR. TWAIT: Yes.
23
MR. SAFLEY: Going on to our question,
24
next Question 9, on what did the Agency rely
186
1
on deciding to propose general use water
2
quality standards for chlorides, iron,
3
selenium, and sulfates?
4
MS. WILLIAMS: We agree that we've
5
talked in detail about chlorides already?
6
MR. SAFLEY: That's fine.
7
MR. TWAIT: I'll quickly go ahead and
8
say chlorides and sulfates were proposed
9
rather than the existing total dissolved
10
solids. The iron standard is for general,
11
the current iron standard is less
12
stringent -- the current -- I'm sorry. The
13
current iron standard is becoming less
14
stringent with the proposal and the selenium
15
water quality standard is not changing from
16
the existing use.
17
MR. SAFLEY: Okay. So selenium is
18
not -- the selenium standard is not going to
19
change from the current secondary contact
20
selenium standard to the Agency's new
21
proposed selenium standard?
22
MR. TWAIT: They are the same.
23
MR. SAFLEY: And with iron, the
24
standard is becoming less stringent than the
187
1
current secondary use standard?
2
MR. TWAIT: Excuse me?
3
MR. SAFLEY: The iron standard
4
proposed by the Agency is less stringent than
5
the secondary use standard?
6
MR. TWAIT: That's what I have in my
7
notes. The current secondary contact, the
8
current secondary contact standard for total
9
iron is 2 milligrams per liter, and the
10
proposal for dissolved iron is one milligram
11
per liter.
12
MR. SAFLEY: Our next questions -- I'm
13
sorry.
14
MR. TWAIT: And the dissolved standard
15
for secondary contact is 0.5 milligrams per
16
liter. So it is becoming less stringent.
17
MR. SAFLEY: Thank you. Our next
18
questions that have not been asked are on
19
Page 9.
20
HEARING OFFICER TIPSORD: Mr. Safley,
21
we've been going about an hour and a half.
22
Let's take a ten-minute break.
23
(Short break taken.)
24
HEARING OFFICER TIPSORD: Let's go
188
1
back on the record. And we're continuing
2
with Mr. Safley and ExxonMobil.
3
MR. SAFLEY: Thank you, Madam Hearing
4
Officer. The next questions that we had not
5
asked are on Page 9 of our prefiled
6
questions. The first one is Roman Numeral
7
III, Question 11, which I realize deals with
8
chlorides which we've dealt a lot with. So
9
I'm not going to try to replow that ground.
10
I just wanted to clarify, yesterday we spent
11
a fair amount of time talking about chlorides
12
in the context of the Chicago Sanitary and
13
Ship Canal. And my understanding was that
14
the Agency was not aware of violations of the
15
proposed chloride standards in the Chicago
16
Sanitary and Ship Canal except in connection
17
with road deicing in the winter. Assuming
18
that's correct, would the answer from the
19
Agency be the same with regard to the lower
20
Des Plaines River?
21
MR. TWAIT: It would. I believe the
22
Agency's statement of reasons has indicated
23
that chloride is from removal of road salt.
24
MR. SAFLEY: And that that's true with
189
1
regard to the lower Des Plaines River as well
2
as the Chicago Area Waterway System?
3
MR. TWAIT: Yes.
4
MR. SAFLEY: I did want to follow up a
5
little bit with regard to the BMPs that we
6
talked about yesterday that were coming in
7
from municipalities. The question I had was
8
how -- does the Agency have a coordinated
9
approach to reviewing those BMPs, and, for
10
example, a list or a plan for how those BMPs
11
should be structured and what they should
12
contain, or is it being done by different
13
reviewers on a case-by-case basis kind of ad
14
hoc as they come into the Agency?
15
MS. WILHITE: If I just said yes, will
16
that cover it?
17
MR. SAFLEY: I tried to make it
18
complicated enough.
19
MS. WILHITE: The context we're
20
working on BMPs related to chloride is with a
21
TMBL for a couple of waterways presently. So
22
we're working with the parties, the
23
municipalities, IDOT mainly, townships to a
24
small extent to develop those BMPs, and it is
190
1
pretty much case by case with each of those
2
entities. Because basically the name of the
3
game is optimizing their road salt
4
application or looking for alternatives to
5
chloride base deicing stuff. Now, we have
6
had some conversation more broadly, and I'm
7
not sure where it's going to go because we're
8
seeing issues outside just those couple of
9
waterways. Whenever we look for chlorides in
10
the wintertime, it seems like we see them,
11
and we're also seeing them in groundwater.
12
So it could be that we develop a strategy
13
more broadly than just those TMBLs, but right
14
now that's what the focus is.
15
MR. SAFLEY: Is there, with regard to
16
the things that you mentioned, Miss Wilhite,
17
looking for alternatives to chloride-based
18
deicing, the other issues, does the Agency
19
have kind of a model plan that it applies or
20
at least a checklist of issues that it looks
21
for in these things, or is that determined by
22
whoever is reviewing that particular BMP when
23
it comes in?
24
MS. WILHITE: I'm not certain.
191
1
MR. SAFLEY: Okay.
2
MS. WILHITE: I think that I committed
3
yesterday to checking in to see how the
4
status of implementation is and whether we
5
had seen any measurable progress related to
6
that had this issue on the list.
7
MR. SAFLEY: Thank you. That was all
8
I wanted to follow up with regard to our
9
Question 11.
10
Our Question 12 begins
11
temperature. The proposal establishes a
12
period average and a daily maximum
13
temperature limit as opposed to the current
14
standard which includes only a daily maximum.
15
The rationale for the period average is that
16
it would recognize, quote, the realities of
17
within season temperature variations and the
18
thermal tolerances of fish, close the quote,
19
statement of reasons at 86. The period
20
average would change twice per month during
21
five months out of the year and monthly
22
during the rest of the year. Did Mr. Yoder's
23
study and the Agency's proposal take into
24
account the operational impact to a facility
192
1
that would be required to adjust its
2
discharge every two weeks for five months of
3
the year in order to comply with the changing
4
temperature limit?
5
MR. TWAIT: I don't think that the
6
Agency looked at how that would impact the
7
discharger specifically. But in reality they
8
would have to -- their DMR would have, during
9
certain months of the year, would have
10
bimonthly reporting requirement.
11
MR. SAFLEY: And the Agency did not
12
review any cost issues or operational impact
13
to facilities that would have a changing
14
period average temperature requirement; is
15
that correct?
16
MR. TWAIT: That is correct.
17
MR. SAFLEY: Thank you. Our next
18
Question 13, again, similar to some of the
19
discussion we had yesterday regarding the
20
Chicago Sanitary and Ship Canal, and the way
21
in which attainment or nonattainment would be
22
determined. And I just wanted to, rather
23
than ask you the question as is, just to ask
24
whether or not the discussion we had
193
1
yesterday about the information that the
2
Agency would consider, where that information
3
comes from, for example, instream monitoring
4
or other sources, and the way in which the
5
Agency, if it found a nonattainment
6
condition, would designate nonattainment by
7
segment as already designated in the
8
integrated list, whether the answer would be
9
the same or different for the lower
10
Des Plaines River than we talked about
11
yesterday for the Chicago Sanitary and Ship
12
Canal?
13
MR. ESSIG: That would be the same.
14
MR. SAFLEY: Thank you. One just
15
generic follow-up. That doesn't really fit
16
into the flow of our prefiled questions.
17
Miss Wilhite, we had a discussion yesterday
18
about your discussion with the Bureau of Air
19
regarding some of the issues that have been
20
raised in Corn Products' questions, and
21
during that discussion you mentioned the
22
Bureau of Air had responded in particular on
23
some issues regarding pH emissions as to a
24
couple of entities involved in this
194
1
rulemaking, and one is my client Corn
2
Products and also Midwest Generation. Did
3
the Bureau of Water having a discussion with
4
the bureau Of Air regard any other specific
5
dischargers who are involved in this
6
rulemaking?
7
MS. WILHITE: No.
8
MR. SAFLEY: Thank you. The last
9
question that we had not asked is on Page 10
10
of our prefiled questions. It's Roman
11
Numeral IV, Question 2. And I'm going to try
12
to alter it a little bit to avoid -- well,
13
first of all, so correct -- it mentions a
14
study by AIWA, which should have been IAWA,
15
the Illinois Association of Wastewater
16
Agencies. Is the Agency, the Illinois
17
Environmental Protection Agency, aware of a
18
water -- a study that's being conducted by
19
the Illinois Association of Wastewater
20
Agencies regarding classification of water
21
bodies in the State of Illinois at this time?
22
MS. WILLIAMS: We weren't sure
23
originally what you're referring to, but that
24
helps us now to understand the question.
195
1
MR. SAFLEY: That's why I wanted to
2
clarify it.
3
MS. WILHITE: Yes. I'm aware that the
4
Illinois Association of Wastewater Agency is
5
doing a series of work related to looking at
6
tiers in the classification of aquatic life
7
use for Illinois streams.
8
MR. SAFLEY: Okay. Does the Agency
9
have any information on what the plan
10
completion date of that study is?
11
MS. WILHITE: No.
12
MR. SAFLEY: Okay. Does that study
13
that's being performed by the IAWA relate at
14
all to the Agency's proposal before the Board
15
in this rulemaking?
16
MS. WILHITE: No.
17
MR. SAFLEY: The Agency does not
18
foresee any impact of the outcome of that
19
study to the rules that are currently before
20
the Board in this rulemaking?
21
MS. WILHITE: It's just too early to
22
tell. In their study they have not even
23
defined what sort of tiers they'd be looking
24
at. And so without that information, it
196
1
would be difficult to line it up with what
2
we're looking at here.
3
MR. SAFLEY: Okay. Does the Agency --
4
Would the Agency see any benefit to waiting
5
for the conclusion of that study before
6
finalizing this rulemaking?
7
MS. WILHITE: No.
8
MS. WILLIAMS: And I'd like to add, I
9
think we have talked about this generally
10
already. And, No. 1, we've said a couple of
11
times that this proposal was designed to
12
stand on its own going forward, so it
13
shouldn't have to be changed based on any
14
outcomes like that. I mean we can't say for
15
sure. It's too early, of course. But that
16
was the intent to let it outlast -- I don't
17
want to say outlast, but to stand alone and
18
move forward into the future with whatever
19
happens with that.
20
And, No. 2, as far as waiting,
21
we did talk also about the legal obligation
22
the Agency has to regularly revisit
23
designations that are lower than full aquatic
24
life use support. So we would be neglecting
197
1
that obligation because the same obligation
2
does not apply to general use waters. We
3
don't have a legal obligation to undertake
4
this tiered aquatic life use analysis in the
5
same way we do here.
6
MR. SAFLEY: Thank you. That
7
concludes our prefiled questions. Thank you.
8
HEARING OFFICER TIPSORD: Thank you.
9
Then I believe Mr. Ettinger had follow-up
10
based on Mr. Safley's questions yesterday.
11
MS. WILLIAMS: Scott was asked to do
12
some recalculation during the break and he
13
did that. Can we present that?
14
HEARING OFFICER TIPSORD: You sure
15
can.
16
MR. TWAIT: I did the recalculation
17
for hardness value of 140 milligrams per
18
liter, and the chronic standard is 0.0013
19
milligrams per liter which equates to 123
20
milligrams per liter -- I'm sorry -- 1.3
21
micrograms per liter which is significantly
22
more than -- which is greater than the MDL.
23
So as I was talking about it with the
24
District, I believe they were using the
198
1
national criteria document.
2
MS. WASSICK: Thanks. We'll
3
recalculate our tables then.
4
HEARING OFFICER TIPSORD:
5
Mr. Ettinger?
6
MR. ETTINGER: I believe yesterday
7
Mr. Safley was asking you about sulfate
8
standards and about the sulfate standards
9
applicable in the waters that we were
10
speaking of. And I believe Mr. Twait
11
referred to the livestock standard not being
12
applicable. Do you recall that testimony?
13
MR. TWAIT: Yes.
14
MR. ETTINGER: And the justification
15
for that was that there's no livestock water
16
in this system?
17
MR. TWAIT: That was the
18
justification, yes.
19
MR. ETTINGER: Did the Agency consider
20
the effect of sulfate on riparian terrestrial
21
wildlife?
22
MR. TWAIT: I believe that that
23
conversation came up. We -- I remember
24
having that conversation with Toby, Bob
199
1
Mosier, and Brian Cook. And Brian Cook and
2
Bob Mosier are working on the rulemaking for
3
sulfates currently. And we didn't -- They
4
didn't feel that there was enough data for
5
non -- for anything other than livestock
6
water.
7
MR. ETTINGER: Are you aware of any
8
threatened or endangered wildlife that live
9
in the CAWS or the lower Des Plaines?
10
MR. TWAIT: The only threatened, which
11
I think may no longer be threatened or soon
12
not to be threatened, taken off the list, is
13
bald eagles. There are a couple of them that
14
are in the area in the winter.
15
MR. ETTINGER: Are river otter listed?
16
MR. SULSKI: I don't know what their
17
status is.
18
MR. ETTINGER: Are you aware if there
19
are river otter living anywhere in the CAWS
20
or the lower Des Plaines?
21
MR. SULSKI: I am not.
22
MR. ETTINGER: Are you aware that down
23
the hallway it says that river otter are
24
threatened?
200
1
MR. SULSKI: I will take that path out
2
to my office.
3
MR. ETTINGER: Have you considered the
4
effect of human pathogens on river otter?
5
MR. TWAIT: I don't know that we
6
expect there to be a problem, but the answer
7
would be no.
8
MR. ETTINGER: Have you studied the --
9
Have you -- Strike that.
10
Have you reviewed any of the
11
reports regarding effects of sewage
12
discharges on sea otters in the Pacific
13
Ocean?
14
MR. TWAIT: No.
15
MR. ETTINGER: Are there any mussel
16
beds in the Chicago Area Waterway System or
17
the lower Des Plaines to your knowledge?
18
MR. SULSKI: I don't know.
19
MR. ETTINGER: The Agency chose to use
20
its current cadmium standard instead of the
21
new cadmium criteria document; is that
22
correct?
23
MR. TWAIT: That is correct.
24
MR. ETTINGER: Do you know whether the
201
1
new cadmium criteria document was developed
2
using mussel data?
3
MR. TWAIT: I do not think the mussel
4
data or any mussel data was involved in the
5
calculation of the national criteria, but
6
we're going to find it and look at it.
7
MR. ETTINGER: Why don't I hold that
8
question, unless you can check it real
9
quickly. We can all look at the national
10
criteria.
11
MS. WILLIAMS: We pulled Attachment
12
AA, so we should be able to find it now that
13
we found the attachment.
14
MR. SULSKI: While he's looking it up,
15
I failed to mention the propensity of the
16
black crowned night herring to use CAWS
17
waters.
18
MR. ETTINGER: Thank you.
19
MR. SULSKI: It's state listed.
20
MR. TWAIT: It does look like they
21
have some data for some mussels. It does
22
look like they had some mussel data, and they
23
have the data ranked and Table 3A of
24
Attachment AA, and it looks like there's -- I
202
1
see mussels ranked in toxicity 9, 11, and 10.
2
So there's eight species that are more
3
sensitive than mussels.
4
MS. WILLIAMS: Does that answer your
5
question?
6
MR. ETTINGER: Yes.
7
MR. TWAIT: And then they have some
8
snails.
9
MR. ETTINGER: Thank you. I have no
10
further questions. Okay.
11
THE ARBITRATOR: Okay. Does anybody
12
else have any follow-up right now? There's a
13
couple of housekeeping things. One,
14
Miss Franzetti had asked if you would explain
15
exactly what the -- or give us an idea of
16
what the data in Exhibits 38, 39, 40, 41, 42,
17
43. Is that correct, Miss Franzetti?
18
MS. FRANZETTI: I didn't remember 38,
19
but you may be right.
20
HEARING OFFICER TIPSORD: Well, 38 and
21
39 both are R&D reports, then 40, 41, 42, and
22
43 are ID & R survey sheets, so.
23
MS. WILLIAMS: Are you specifically
24
interested in --
203
1
MS. FRANZETTI: I was actually
2
focussed on all of these data sheets for the,
3
it looks like the fish surveys, which I --
4
HEARING OFFICER TIPSORD: Which are
5
like 40, 41, 42, and 43.
6
MS. FRANZETTI: Exactly. And as I
7
mentioned previously, if you could, for the
8
ones that have numerous sampling stations,
9
and it may not be apparent, I'm just, for
10
example, I'm looking at 41, because I seem to
11
have misplaced 40, and that's got a number of
12
sampling stations. And I just don't know
13
from looking at it whether all of those are
14
within the UAA area, and, if so, which are.
15
HEARING OFFICER TIPSORD: Go ahead and
16
start with 40. Forty is the Illinois
17
Department of Natural Resources DuPage River
18
Basin Survey Stations, and that just lists --
19
starts with gizzard chad and then lists
20
across the top several of the DuPage River,
21
so.
22
MR. ESSIG: Just to start with,
23
Exhibit 40 was submitted in relation to the
24
information regarding white suckers and
204
1
stonerollers within the basin.
2
MS. FRANZETTI: White suckers and?
3
MR. ESSIG: Stonerollers.
4
MS. FRANZETTI: As simply as some
5
evidence that they're present in the basin?
6
MR. ESSIG: Right.
7
MS. FRANZETTI: These are not, though,
8
UAA waters, right?
9
MR. ESSIG: They're tributary to the
10
UAA waters.
11
MS. FRANZETTI: Tributaries to.
12
HEARING OFFICER TIPSORD: Tributaries
13
to the lower Des Plaines River and Chicago?
14
MR. ESSIG: Yes.
15
MR. POLLS: Isn't it true they're in
16
the lower -- aren't they below the I55
17
bridge?
18
MR. ESSIG: Yes, they are.
19
MR. POLLS: The DuPage River does not
20
come within the UAA area. So technically
21
they're not in this basin, the adjoining
22
basin.
23
MR. ESSIG: They're not part of this
24
rulemaking.
205
1
MS. WILLIAMS: Just to clarify, and I
2
may be wrong, but my understanding of why we
3
were provided this data, I believe Howard was
4
asked the question what did he look at
5
regarding our decision to include white
6
sucker as a species on the RAS list. And he
7
threw out a bunch of data that he looked at
8
to suggest it could thrive there, and this
9
was the data he referenced.
10
MS. FRANZETTI: No. We appreciate
11
that. And it's just I mean a little bit --
12
We're trying to short-circuit what might need
13
to be questioned after we review it. So to
14
at least cover here, which I'm sure you'll
15
appreciate, you know, what -- exactly what
16
you just said, Ms. Williams, in terms of how
17
you used it. But then we may have questions
18
like this to clarify how the data applies or
19
perhaps doesn't to the UAA areas.
20
MS. WILLIAMS: I just don't want it to
21
be confused that he looked at this as part of
22
the use designation process itself. I don't
23
think that was his testimony, this particular
24
exhibit.
206
1
MS. FRANZETTI: I understand the
2
distinction you're making, but it sounds like
3
it may have influenced the representative
4
species list.
5
HEARING OFFICER TIPSORD: Would it be
6
possible for us to get in a later filing from
7
the Agency, preferably before the additional
8
hearings, a key to explain -- I mean you have
9
GB-01. I assume that those are keys to a
10
sampling?
11
MR. ESSIG: Those are station
12
locations, yes.
13
HEARING OFFICER TIPSORD: Could you
14
get us like even a thing that says G-07 is at
15
this location?
16
MR. ESSIG: Yes.
17
HEARING OFFICER TIPSORD: Could we get
18
that from you?
19
MR. ESSIG: Yes.
20
HEARING OFFICER TIPSORD: Because I
21
know that Miss Franzetti had asked and wants
22
to know which of these are in the rulemaking,
23
but that is likely to come up again later.
24
If you have the key, we'd have it in hand.
207
1
MS. FRANZETTI: I agree.
2
HEARING OFFICER TIPSORD: That's for
3
all four of the exhibits: 40, 41, 42, and
4
43.
5
MS. DIERS: We can do that.
6
HEARING OFFICER TIPSORD: Thank you.
7
Could we possibly get that as soon as within
8
the next couple of weeks before prefiled
9
testimony is due?
10
MR. ESSIG: Oh, yeah.
11
MS. DIERS: Yes.
12
MS. FRANZETTI: Who is going to take
13
on Exhibit 41.
14
MR. ESSIG: In terms of? Exhibit 41
15
is fish data collected on the Des Plaines
16
main stem by Illinois Department of Natural
17
Resources. The stations range from centrally
18
near the Wisconsin state line down to
19
Lockport in the upper Des Plaines River above
20
the sanitary ship canal.
21
HEARING OFFICER TIPSORD: So none of
22
these were taken in the CAWS or the lower Des
23
Plaines that's on 41?
24
MR. ESSIG: No. Well, the Des Plaines
208
1
River is tributary to the Branden Pool.
2
HEARING OFFICER TIPSORD: Right. But
3
didn't you just say they were from Wisconsin
4
to --
5
MR. ESSIG: Wisconsin state line, but
6
it's --
7
HEARING OFFICER TIPSORD: Right. But
8
it's all upstream of what we're looking at
9
here?
10
MR. ESSIG: Yes.
11
HEARING OFFICER TIPSORD: Thank you.
12
Sorry, Miss Franzetti.
13
MS. FRANZETTI: I never mind your
14
assistance.
15
MR. ESSIG: Do you have any other
16
questions on 41?
17
MS. FRANZETTI: No. Well, I guess we
18
should just clarify, but I'm assuming it's
19
the same as the case. This is, again,
20
similar to Exhibit 40, you looked at this
21
data just in terms of both the white sucker
22
and the stoneroller?
23
MR. ESSIG: Yes.
24
MS. FRANZETTI: Same thing on
209
1
Exhibit 42?
2
MR. ESSIG: Yes. Exhibit 42, now
3
these are direct tributaries to the Des
4
Plaines River which of those listed, the only
5
ones that would be applicable would be
6
Hickory Creek and -- Hickory Creek and
7
Jackson Creek in terms of being a tributary
8
to the lower Des Plaines within the study
9
area.
10
MR. POLLS: Is that tributary to the
11
lower Des Plaines?
12
MR. ESSIG: Yes. I will get you
13
locations for all these sites.
14
MR. ETTINGER: You're saying Hickory
15
Creek, Manhattan Creek, and Jackson Creek are
16
tributary to the lower December Plaines?
17
MR. ESSIG: Manhattan is tributary to
18
Jackson.
19
MR. ETTINGER: But Jackson Creek comes
20
in at Joliet, so.
21
MR. ESSIG: It comes -- Jackson Creek
22
comes in just upstream of I55.
23
MR. ETTINGER: So it's tributary to
24
this area?
210
1
MR. ESSIG: Yeah.
2
MR. ETTINGER: Indian Creek comes in
3
where?
4
MR. ESSIG: Up in this area, Cook
5
County.
6
MR. ETTINGER: Salt Creek is in DuPage
7
County. Is that the DuPage Salt Creek?
8
There's a Salt Creek in every county in
9
Illinois? Which Salt Creek is this?
10
MR. ESSIG: That's the one that goes
11
through DuPage and Cook County. These are
12
all included because they were part of the
13
data set. I didn't look at all of these
14
sites, but the ones that were more related to
15
the study area.
16
MS. FRANZETTI: You know, Mr. Essig,
17
just to make it a little clearer, why don't
18
you read off the sampling station numbers
19
that are above the names like Hickory Creek
20
and Salt Creek that you did -- you were
21
looking at and thought were relevant.
22
MR. ESSIG: GC-03, GG-06 and GG-04. I
23
think in that case I looked at the furthest
24
downstream one, and at this point I don't
211
1
recall based on the station code which one
2
that was.
3
MS. FRANZETTI: As between GG-06 and
4
GG-04?
5
MR. ESSIG: Yes. Those would be the
6
ones I've looked at.
7
MR. ETTINGER: Salt Creek, as I
8
recall, is a tributary to the DuPage River
9
and the DuPage River --
10
MR. ESSIG: No. It's Salt Creek is a
11
tributary the Des Plaines.
12
MR. ETTINGER: I'm sorry. The Des
13
Plaines River, the upper Des Plaines River.
14
MR. ESSIG: Yes.
15
MR. ETTINGER: I'm sorry.
16
HEARING OFFICER TIPSORD: That's the
17
other Salt Creek.
18
MR. ETTINGER: I think I was genuine.
19
This is the Elmhurst Salt Creek.
20
HEARING OFFICER TIPSORD: Are we ready
21
to go to 43?
22
MR. ESSIG: Forty-three is the
23
Kankakee basin. Again, this one is outside
24
of the study area. The only station that I
212
1
did look at on this one, I think, I believe
2
was the furthest downstream one which would
3
be F-02.
4
MS. FRANZETTI: And, Mr. Essig, why
5
did you think that data was relevant?
6
MR. ESSIG: Well, at that point
7
because I was just looking at what was
8
tributary to the Des Plaines River as opposed
9
to not just the --
10
MS. FRANZETTI: UAA area?
11
MR. ESSIG: Yes.
12
MS. FRANZETTI: Okay.
13
HEARING OFFICER TIPSORD: Any
14
additional follow-up on those exhibits?
15
Okay. With that, are there
16
any additional exhibits that the Agency has
17
for us today?
18
MS. DIERS: Yes. We were asked to
19
provide comments on our January 2008
20
proposal -- 2007 proposal, and we put it
21
together, Marie, but I can separate out.
22
There's seven comments in this package that
23
we put together that we received. Do you
24
want to do it one by one exhibit?
213
1
HEARING OFFICER TIPSORD: Let me take
2
a look at it. As much as I hate to type in
3
exhibit numbers, it's probably going to work
4
best if we individually number them. So for
5
the record, we have a U.S. EPA Region 5
6
comment received May 7, '07, dated May 3,
7
'07, that we will mark as Exhibit 49.
8
MS. FRANZETTI: And I'm sorry to
9
interrupt, Miss Tipsord, but in terms of what
10
these are, these are all of the comments the
11
Agency received on its January 2007 draft?
12
MS. DIERS: That went out to the
13
State --
14
MS. FRANZETTI: Proposal on the UAA.
15
Okay.
16
MS. WILLIAMS: I think specifically we
17
may have been talking about things that came
18
in after stakeholder meetings. But I mean I
19
think this is everything, things that came in
20
at the stakeholder meetings and after.
21
MS. FRANZETTI: I guess the only thing
22
I point -- that's why I was asking. Because
23
I do think, just speaking for Midwest
24
Generation, we did put on a Power Point
214
1
presentation at the public meetings, and
2
that's already in the record exactly. So
3
just not to omit that it's already been made
4
part of the record.
5
HEARING OFFICER TIPSORD: Then as
6
Exhibit 50 I will mark a document that has
7
draft 2/12/07 at the bottom, first line is a
8
new Illinois use designation entitled the,
9
quote, Invasive Species Area Zone, closed
10
quote. That will be marked as Exhibit 50, if
11
there is no objection. Seeing none, we'll
12
mark that as Exhibit 50. But we don't know
13
who this is from.
14
MS. FRANZETTI: I believe that's from
15
Midwest Generation. Sorry.
16
HEARING OFFICER TIPSORD: Midwest
17
Generation. Does the Agency agree?
18
MS. DIERS: Yes.
19
HEARING OFFICER TIPSORD: Would it be
20
okay if I put Midwest Generation on this?
21
MS. DIERS: That's fine.
22
MS. FRANZETTI: As long as you add an
23
A plus next to it.
24
HEARING OFFICER TIPSORD: I've got
215
1
gold stars at the office.
2
MS. FRANZETTI: I like those, too.
3
MS. DIERS: The next one, Marie, we
4
clipped together, because they're comments
5
from the District. So we -- I don't know if
6
you want to separate it.
7
HEARING OFFICER TIPSORD: We'll put
8
all of the paper-clipped District comments as
9
one exhibit. That will be Exhibit 51 if
10
there's no objection. Seeing none, it's
11
Exhibit 51.
12
If there's no objection to
13
Exhibit 49, I'm also admitting that. Seeing
14
none, it's admitted.
15
Next we have an IEPA document
16
titled Chicago Waterway Lower Des Plaines
17
River UAA. We'll mark that as Exhibit 52.
18
MS. WILLIAMS: This is just memorandum
19
that Toby put together between the meeting
20
that was held in Joliet and the one that was
21
held in Chicago so that at this Chicago
22
meeting folks could be aware of issues that
23
had already come up at the Joliet meeting.
24
So this is more a summary of verbal comments,
216
1
not quite relevant to the issue of written
2
comments, that we got in that fit with this.
3
HEARING OFFICER TIPSORD: Seeing no
4
objection, that's Exhibit 52.
5
Exhibit 53 is from the
6
Environmental Law Policy Center. If there is
7
no objection, we will mark that and admit it
8
as Exhibit 53. Seeing none, it is
9
Exhibit 53.
10
And, Albert, I have a gold
11
star at the office for you, too.
12
MR. ETTINGER: That's okay. It's good
13
enough for Franzetti. It's not good enough
14
for me.
15
MS. FRANZETTI: Well, having you in
16
the same crowd kind of detracts a bit, but
17
I'll get over it.
18
HEARING OFFICER TIPSORD: Next I have
19
an e-mail from Phillip Moy to Toby Frever.
20
If there's no objection, we will mark that as
21
Exhibit 54 and admit it. Seeing none, it is
22
Exhibit 54.
23
And last we have Alliance for
24
the Great Lakes. And if there's no
217
1
objection, I will mark that as Exhibit 55.
2
Seeing none, it is Exhibit 55.
3
MS. FRANZETTI: I don't know if
4
anybody here can answer the question. It
5
looks like this also was prepared at some
6
point after the meetings. I mean I think I
7
saw in a quick glance through it, so at some
8
point in 2007. Does anybody know what the
9
approximate date of Exhibit 55 is?
10
MR. ETTINGER: I believe it was
11
prepared in July.
12
MS. WILLIAMS: It was definitely
13
sometime between April and the end of July of
14
'07 that we received it, I should say. I
15
don't know.
16
HEARING OFFICER TIPSORD: And I bet we
17
have more documents.
18
MS. WILLIAMS: One more.
19
HEARING OFFICER TIPSORD: There's a
20
2000 copyright on the back of the -- 2007
21
copyright on the back of the Alliance for
22
Great Lakes Report Agenda.
23
MS. DIERS: The last document we have
24
to enter is the January 2007 proposal that we
218
1
sent out. And it has an e-mail on the cover
2
of it that tells the stakeholder group what
3
exactly is in this and kind of a summary.
4
HEARING OFFICER TIPSORD: If there's
5
no objection, we will mark that as
6
Exhibit No. 56. Seeing none, it is
7
Exhibit No. 56.
8
MR. FORTE: Is that the entire clipped
9
document?
10
HEARING OFFICER TIPSORD: We'll do it
11
as one, because the e-mail talks about
12
attachments, so.
13
MR. SAFLEY: Miss Tipsord, I had a
14
question regarding this Exhibit whenever it's
15
appropriate.
16
HEARING OFFICER TIPSORD: Yes.
17
MR. SAFLEY: To the Agency, the first
18
paragraph of this e-mail, the last sentence
19
says IEPA is working on responses to comments
20
on the UAA reports which will be available on
21
www.Chicagoareawaterways.org at a later date.
22
Have those responses been entered into
23
evidence?
24
MS. WILLIAMS: No. They have not.
219
1
They don't exist, if that's the question. We
2
never completed the document that's
3
referenced.
4
MR. SAFLEY: Are there drafts that are
5
started? Because it says working on, which
6
implies there was a draft at that point.
7
MS. WILLIAMS: No. I mean we worked
8
on compiling all the questions that were
9
asked, so there was an attempt to filter out
10
all the questions. But it was way too
11
burdensome to actually answer them, so no.
12
Does that make sense? I'm not explaining
13
this very well. We haven't talked about
14
this, I don't think previously, have we?
15
MR. SAFLEY: Not that I recall. If I
16
recalled, I wouldn't have asked.
17
MS. WILLIAMS: This is a Toby
18
question. Do you want to try to --
19
MS. FRANZETTI: So take it away,
20
Mr. Twait.
21
MR. TWAIT: I don't know that I want
22
to -- I think at some point Toby made the
23
commitment that all the questions would be
24
addressed in the responsiveness summary.
220
1
And, as Deb said, we started the compilation
2
of that. And at a similar point we started
3
doing responsiveness summary and the
4
statement of reasons and our proposal, and it
5
got to the point that because of workload
6
Toby made the decision of whether to continue
7
with the responsiveness summary or to work on
8
the statement of reasons and our proposal.
9
And the decision was made that we would
10
forego the responsiveness summary in order --
11
because workload -- to work on the proposal
12
and statement of reasons.
13
MR. SAFLEY: Is the start that was
14
made to the responsiveness summary contained
15
in the record?
16
MS. WILLIAMS: That's where I was
17
explaining there are no responses drafted,
18
just an attempt to compile the questions.
19
MR. SAFLEY: I'm sorry. Then I
20
misunderstood. I heard Mr. Twait say there
21
were two different things: One, a
22
compilation of questions; two, a start on
23
responsiveness summary. And -- maybe I
24
misunderstood.
221
1
MR. TWAIT: That was -- the start on
2
the responsiveness summary was to group --
3
when we first started looking at them, we
4
could either try to answer all of the
5
questions proposed by each and every person.
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But the decision was made that we would have
7
another staff person that was unrelated to
8
this go through all the questions and group
9
the questions according to temperature,
10
bacteria, and et cetera. And when they
11
had -- as they were going through that
12
compilation putting everything together, it
13
just got too unwieldily and timely.
14
MR. SAFLEY: So is that compilation
15
included in the record?
16
MR. TWAIT: And as Deb is reminding
17
me, at that point a lot of the comment became
18
irrelevant because we had changed the
19
proposal since those comments were made
20
because some of them were numerous years old
21
during the UAAs.
22
MR. SAFLEY: Okay. Is the compilation
23
that was started included in the
24
administrative record?
222
1
MS. WILLIAMS: No.
2
MR. SAFLEY: Was the compilation drawn
3
only from written documents or was it drawn
4
from oral comments made at stakeholder
5
meetings or both or do we know?
6
MR. TWAIT: I believe everything was
7
written.
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MR. SAFLEY: Are all of those written
9
documents that were the source of the
10
beginning of the compilation included in the
11
record?
12
MR. TWAIT: For the lower Des Plaines
13
they're attached to the CD and appendix --
14
Attachment A.
15
MR. POLLS: If I understand, those
16
comments were specifically given by numerous
17
agencies on the finished UAA reports of the
18
two contractors; is that correct? Is that
19
what -- because I don't have it in front of
20
me, but I believe that's what the comments
21
you're talking about.
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MR. SAFLEY: Draft.
23
MR. POLLS: That's something
24
different, okay.
223
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MR. SAFLEY: I'm sorry. You had --
2
MR. TWAIT: The ones that are --
3
MS. WILLIAMS: The draft what?
4
MR. POLLS: The draft --
5
MR. SAFLEY: Back to --
6
MR. POLLS: Draft proposal.
7
MS. WILLIAMS: These are not comments
8
on the proposal that we're talking about.
9
Just on the UAA reports.
10
MR. SAFLEY: No. I understand. But
11
the question I had was are all -- we've
12
talked about this compilation and the answer
13
was the compilation is not in the record.
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But are the documents that were drawn from
15
for the compilation in the record? If I want
16
to go back and try to reconstruct was the
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Agency asked a particular question, I don't
18
have the compilation, but do I at least have
19
the documents that that staff person,
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unrelated staff person, who you mentioned was
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drawing from so I can look back through all
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of those and say how this question came up.
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MR. TWAIT: I believe that all the
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comments on the draft UAA for the lower Des
224
1
Plaines are included as an attachment on the
2
CD, and I think they are part of the record.
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MR. SAFLEY: What about with the
4
Chicago Area Waterway System UAA?
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MR. SULSKI: I'm not certain. I'm not
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certain whether we began -- whether they are
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all in the record in the existing record.
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MR. SAFLEY: Okay. Well, I --
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MR. SULSKI: We can go back and look.
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MR. SAFLEY: I would request if the
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Agency received written questions or comments
12
on the Chicago Area Waterway System UAA that
13
are not in the record, we would request that
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those be placed into the record as something
15
that the Agency had in its administrative
16
record as it was developing through you, and
17
whether or not it ever issued a formal
18
written response to it. Thank you.
19
HEARING OFFICER TIPSORD: I heard an
20
agreement from them, by the way. Okay. Are
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there any other questions? Any additional
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documents to be entered?
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MS. DIERS: No. We don't have any
24
more documents to enter.
225
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HEARING OFFICER TIPSORD: We still
2
have some documents coming, though; isn't
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that correct?
4
MS. DIERS: We have sediment data that
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I mentioned yesterday that we're trying to
6
get copied that was asked of us in March.
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And then, of course, there was some requests
8
today to get together. And then with Chris
9
Yoder, there were several questions that were
10
outstanding to him. And I'm in the process
11
of working on an affidavit. I'm in the
12
process of over a month now trying to
13
finalize an affidavit with Mr. Yoder to
14
address issues that were raised at the
15
previous hearing.
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MS. WILLIAMS: In most cases those are
17
he was asked for a document and he is telling
18
us that it doesn't exist, but we want that to
19
come from him.
20
MS. DIERS: I can answer that, you
21
know, I have a few of the answers, but I
22
wanted to do it in a sworn affidavit.
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MS. FRANZETTI: Actually, along those
24
lines, can we pretty much assume that
226
1
anything that was asked for from Yoder that
2
didn't come in in the course of your
3
production of information relating to him in
4
these two days doesn't exist -- is not going
5
to be forthcoming because he can't find it or
6
it doesn't exist or you don't know?
7
MS. WILLIAMS: I think that's probably
8
true, but I'd rather answer it if there's a
9
specific.
10
MS. FRANZETTI: I don't remember. I
11
haven't had a chance to even look at the CD
12
to see what you did produce on that with
13
regard to Mr. Yoder. Okay. We don't have to
14
finalize it today.
15
The only additional thing I was
16
just going to add, and I'll say it on
17
everyone's behalf to avoid a bunch of me
18
toos, because I'm sure everybody feels this
19
way, is, you now, we have tried a bit to look
20
at the exhibits that have been produced.
21
Obviously we went through some of them just a
22
few moments ago. But there is no way, I
23
think, that any of us could review all of
24
this, the CDs, et cetera, and confirm as of
227
1
right now that we don't have any other
2
questions. So I would just ask that there be
3
an agreement that we have not waived by not
4
asking any questions today on these
5
materials, we've not waived our right to
6
approach you, Madam Hearing Officer, in the
7
future to say we have some follow-up
8
questions on these materials.
9
HEARING OFFICER TIPSORD: Absolutely.
10
I appreciate that, getting that on the
11
record. I 100 percent agree, and I'm seeing
12
nods from the Agency that they agree as well.
13
MS. DIERS: We agree.
14
HEARING OFFICER TIPSORD: So, yes,
15
that will be it. Is there anything else?
16
MR. SAFLEY: Yes, ma'am. The only
17
other thing I want to ask -- I thank you,
18
Miss Diers, for the response about the
19
affidavit with regard to the Yoder documents.
20
The only thing I was going to ask is the
21
Agency aware of any documents other than
22
those Yoder documents that had been
23
specifically asked for and either the Agency
24
has concluded don't exist or cannot be found
228
1
or is still planning -- is still working on
2
putting together that we haven't already
3
talked about here?
4
MS. DIERS: I believe that I have been
5
through all the transcripts, I believe that
6
we have tried to address everything that is
7
asked. But, again, if there is something
8
that someone sees that they don't think that
9
we've responded to, please let me know.
10
Because I could have possibly missed
11
something. But sitting here today, I believe
12
that we've tried to address everything that
13
has been asked of us so far.
14
HEARING OFFICER TIPSORD: And I
15
believe you deserve a round of applause for
16
being all the way through the transcripts.
17
Anything else?
18
All right. This has been a
19
long ten days, but I want to say again, as
20
I've said at close of all the hearings, how
21
much I appreciate your courtesy, your
22
professionalism, and most of all, your good
23
humor. We've gotten a lot of good
24
information, and I'm looking forward to the
229
1
next set of hearings. I will put a hearing
2
officer order out soon. Mr. Harley is
3
checking about a room to do a public
4
information, public testimony night in June.
5
The other hearings I've already requested
6
rooms for in September. Once we get rooms
7
we'll put out the finalized prehearing
8
deadlines and all of that. For now, thank
9
you very much, and I look forward to seeing
10
you all again soon. We're adjourned.
11
(At which time the
12
hearing was
13
continued sine die.)
14
* * * * * * *
15 STATE OF ILLINOIS )
) SS.
16 COUNTY OF COOK )
17
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I, LAURA MUKAHIRN, being a Certified
19 Shorthand Reporter doing business in the City of
20 Chicago, Illinois, County of Cook, certify that I
21 reported in shorthand the proceedings had at the
22 foregoing hearing of the above-entitled cause. And
23 I certify that the foregoing is a true and correct
24 transcript of all my shorthand notes so taken as
230
1 aforesaid and contains all the proceedings had at
2 the said meeting of the above-entitled cause.
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5
___________________________
6
LAURA BERNAR, CSR
CSR NO. 084-003592
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