BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN
THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT
LIMITA
nONS
FOR
THE
CHICAGO AREA WATERWAY SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO
35 Ill.
Adm. Code Parts
301,302,303 and 304
)
)
)
)
)
)
)
)
)
R08-9
(Ru1emaking - Water)
NOTICE OF FILING
To:
ALL COUNSEL OF RECORD
(Service List Attached)
PLEASE
TAKE NOTICE that on the
Il
lh
Day of July, 2008, I filed with the Office of
the Clerk of the Illinois Pollution Control Board the attached Metropolitan Water Reclamation
District of Great Chicago's Motion for Leave to File a Reply in Support of Motion to Stay
IPCB R08-9, copies
of which are hereby served upon you.
Dated: July 11,2008
Fredric
P. Andes
Carolyn S. Hesse
David T. Ballard
BARNES
&
THORNBURG LLP
Suite 4400
One North Wacker Drive
Chicago, Illinois 60606
(312) 357-1313
By:
METROPOLITAN WATER RECLAMATION
DISTRICT
OF GREATER CHICAGO
7.
///;~~~~
?
One of Its'Attorneys
[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
Electronic Filing - Received, Clerk's Office, July 11, 2008
PROOF OF SERVICE
The undersigned, a non-attorney, certifies, under penalties of perjury pursuant to 735
ILCS 5/1-109, at that true copies of the forgoing Notice of Filing and Metropolitan Water
Reclamation District
of Great Chicago's Motion for Leave to File a Reply in Support of Motion
to Stay IPCB R08-9 were mailed via U.S. Mail, first class postage prepaid, from One North
Wacker Drive, Suite 4400, Chicago, Illinois
to All Counsel of Record on the attached Service
List, on this
11 th Day of July, 2008.
474676\1
[This filing submitted on recycled paper as defined in 35 Ill. Adm. Code 101.2021
2
Electronic Filing - Received, Clerk's Office, July 11, 2008
Richard 1. Kissel
Roy
M. Harsch
Drinker, Biddle, Gardner, Carton
Suite 3700
191 N. Wacker Drive
Chicago, IL 60606-1698
SERVICE LIST
R08-9 (Rulemaking - Water)
Claire A. Manning
Brown, Hay
&
Stephens LLP
700 First Mercantile Bank Building
205 South Fifth St., P.O. Box 2459
Springfield, IL 62705-2459
Deborah
1. Williams, Assistant Counsel
Stefanie
N. Diers, Assistant Counsel
IEPA
Division
of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Kevin
G. Desharnais
Thomas
W. Dimond
Thomas
V. Skinner
Mayer, Brown LLP
71 South Wacker Drive
Chicago, IL 60606-4637
Robert VanGyseghem
City
of Geneva
1800 South Street
Geneva,
IL 60134-2203
Matthew
J.
Dunn, Chief
Office of the Attorney General
Environmental Bureau North
Suite 1800
69 West Washington Street
Chicago, IL 60602
Bernard Sawyer
Thomas Granto
Metropolitan Water Reclamation District
6001 W. Pershing Road
Cicero. IL 60804
James
L.
Daugherty, District Manager
Thorn Creek Basin Sanitary District
700 West End Avenue
Chicago Heights, IL 60411
Katherine
D. Hodge
Monica
T.
Rios
Thomas Safley
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield, IL 62705-5776
Charles
W. Wesselhoft
James
T. Harrington
Ross
&
Hardies
Suite 2500
150 North Michigan Avenue
Chicago, IL 60601-7567
Jerry Paulsen
Cindy Skrukrud
McHenry County Defenders
132 Cass Street
Woodstock, IL 60098
Albert Ettinger
Freeman, Freeman
&
Salzman
401 North Michigan Avenue
Chicago, IL 60611
Lisa Frede
Chemical Industry Council
of Illinois
Suite 239
2250 East Devon Avenue
Des Plaines, IL 60018-4509
Sharon Neal
Commonwealth Edison Company
125 South Clark Street
Chicago, IL 60603
Electronic Filing - Received, Clerk's Office, July 11, 2008
Tracy Elzemeyer, General Counsel
American Water Company Central Region
727 Craig Road
St. Louis, MO 63141
Keith
1.
Harley
Elizabeth Schenkier
Chicago Legal Clinic, Inc.
4
th
Floor
205 West Monroe Street
Chicago, IL 60606
Fred
L.
Hubbard
Attorney at Law
16 West Madison
P.O. Box
12
Danville, IL 61834
W.e. Blanton
Blackwell Sanders LLP
Suite 1000
4801 Main Street
Kansas City, MO 64112
Traci Barkley
Prarie Rivers Networks
Suite 6
1902 Fox Drive
Champaign, IL 61820
James Huff, Vice President
Huff
&
Huff, Inc.
Suite 3300
915 Harger Road
Oak Brook,
IL 60523
Cathy Hudzik
City
of Chicago - Mayor's Office of
Intergovernmental Affairs
City Hall - Room 406
121 N. LaSalle Street
Chicago, IL 60602
Irwin Polls
Ecological Monitoring and Assessment
3206 Maple Leaf Drive
Glenview, IL 60025
Margaret
P. Howard
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Frederick
D. Keady, P.E., President
Vermilion Coal Company
1979 Johns Drive
Glenview, IL 60025
Georgia Vlahos
Naval Training Center
2601A Paul Jones Street
Great Lakes, IL 60088-2845
Dennis
L.
Duffield
Director
of Public Works
&
Utilities
City
of Joliet, Department of Public
Works
&
Utilities
921 E. Washington Street
Joliet, IL 60431
Ann Alexander, Sr. Attorney
Natural Resources Defense Council
Suite 609
101 North Wacker Drive
Chicago, IL 60606
Beth Steinhorn
2021 Timberbrook
Springfield, IL 62702
Dr. Thomas
J. Murphy
DePaul University
2325
N. Clifton Street
Chicago, IL 60614
Susan
M. Franzetti
Franzetti Law Firm P.C.
Suite 3600
lOS. LaSalle Street
Chicago, IL 60603
Electronic Filing - Received, Clerk's Office, July 11, 2008
Marc Miller, Senior Policy Advisor
Jamie
S. Caston, Policy Advisor
Office
of Lt. Governor Pat Quinn
Room 414 State House
Springfield, IL 62706
Albert Ettinger, Senior Staff Attorney
Jessica Dexter
Environmental Law
&
Policy Center
Suite 1300
35 E. Wacker Drive
Chicago, IL 60601
Tom Muth
Fox Metro Water Reclamation District
682 State Route
31
Oswego, IL 60543
Jack Darin
Sierra Club
Illinois Chapter
Suite 1500
70 E. Lake Street
Chicago,
IL 60601-7447
Marie Tipsord, Hearing Officer
John Therriault, Assistant Clerk
Illinois Pollution Control Board
100
W. Randolph Street
Suite 11-500
Chicago, IL 60601
Stacy Meyers-Glen
Openlands
Suite 1650
25 East Washington
Chicago, Illinois 60602
Susan Hedman
Andrew Armstrong
Environmental Counsel Environmental Bureau
Suite 1800
69 West Washington Street
Chicago, IL 60602
Vicky McKinley
Evanston Environment Board
223 Grey Avenue
Evanston, IL 60202
Kenneth
W. Liss
Andrews Environmental Engineering
3300 Ginger Creek Drive
Springfield, IL 62711
Bob Carter
Bloomington Normal Water
Reclamation District
P.o. Box 3307
Bloomington, IL 61702-3307
Kay Anderson
American Bottoms RWTF
One American Bottoms Road
Sauget, IL 62201
Kristy
A.
N. Bulleit
Brent Fewell
Hunton
&
Williams LLC
1900 K Street,
NW
Washington, DC 20006
Jeffrey
C. Fort
Ariel
J. Tesher
Sonnenschein Nath
&
Rosenthal LLP
7800 Sears Tower
233 S. Wacker Drive
Chicago, IL 60606-6404
Ronald
M. Hill
Margaret T. Conway
Metropolitan Water Reclamation District
of
Greater Chicago
100 E. Erie Street, Room
301
Chicago, Illinois 60611
Electronic Filing - Received, Clerk's Office, July 11, 2008
Kevin B. Hynes
O'Keefe Lyons
&
Hynes, LLC
Suite 4100
30 North LaSalle Street
Chicago, Illinois 60602
469414vl
Electronic Filing - Received, Clerk's Office, July 11, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO
35 Ill.
Adm. Code Parts 301, 302, 303 and 304
)
)
)
)
)
)
)
)
R08-9
(Rulemaking - Water)
METROPOLITAN WATER RECLAMATION DISTRICT OF
GREATER CHICAGO'S MOTION FOR LEAVE TO FILE A REPLY
IN SUPPORT OF MOTION TO STAY IPCB R08-9
The Metropolitan Water Reclamation District of Greater Chicago (the "District"), by its
attorneys and pursuant to
Ill. Adm. Code tit. 35 § 101.500(e), moves the Board for leave to file a
Reply in Support
of its Motion to Stay the above-captioned Rulemaking. In support of this
Motion, the District states as follows.
1. On October 26, 2007, the Illinois Environmental Protection Agency ("IEPA") filed a
Motion for Acceptance with the Illinois Pollution Control Board (the "Board") on IEPA's
proposal to amend 35 Ill. Adm. Code Parts 301, 302, 303, and 304 ("IEPA's Proposal").
Generally, IEPA's Proposal will revise the designated uses for the Chicago Area Waterways
System ("CAWS") and the Lower Des Plaines River and the criteria necessary to protect those
uses.
2. On November 1, 2007, the Board granted IEPA's Motion for Acceptance, thereby
initiating the public participation process required by Illinois law. Subsequently, the Board has
held
11 days of public meetings and accumulated record material.
3. On June 12, 2008, the District filed a Motion to Stay the Rulemaking proceedings, in
order
to allow the District and other parties to finish and supply IEPA with various studies that
will fill in multiple technical and analytical gaps in IEP
A'sproposed water quality standards.
Electronic Filing - Received, Clerk's Office, July 11, 2008
4. On June 25, 2008, the Environmental Law and Policy Center (the "Center") filed a
Response to the District's Motion for Stay contesting a number of legal and factual issues raised
by the District. In summary, the Center questions the accuracy of a number of the District's
citations to the record as deficiencies in IEPA'sproposed water quality standards, and challenges
the legal justification for many of the District's claims. Additionally, the Center's Response
introduces new evidence in the form of an affidavit from Dr. Peter Orris ("Orris Affidavit")
calling into question one of the studies that the District proposes to provide to IEP
A.
See
Center's Resp., Ex.
A.
This affidavit was not previously introduced into the record.
5. On June 26, 2008, the People of the State of Illinois ("People") and the Southeast
Environmental Task Force ("SETF") filed separate Responses to the District's Motion for Stay.
The People's Response generally challenges the timing and intent of the District's Motion for
Stay. People's Resp., at p. 5. SETF's Response accuses the District of bad faith in filing the
Motion for Stay, and challenges some of the legal bases for the District's claims. SETF asserts
that the District intends to prevent environmental groups from having an opportunity to present
evidence in this proceeding.
6. Also on June 26, 2008, Midwest Generation,
L.L.c.
("Midwest Generation") filed a
Memorandum in Support of the District's Motion for Stay generally "shar[ing] the District's
concern that [IEPA]'s proposal is fundamentally flawed and cannot be supported based on the
many factual gaps and faulty assumptions that make up the record." Midwest Generation's
Resp., at p. 1. Midwest Generation's Memorandum identified "significant lack of data,
information and analysis," "significant deficiencies in the collection of environmental data and
information" and IEPA "failure or unwillingness to consider other data and alternative
approaches."
Id
at pp. 4-7.
2
Electronic Filing - Received, Clerk's Office, July 11, 2008
7. On June 27, 2008, the Chemical Industry Council of Illinois ("CICI") filed a
memorandum concurring with the District's Motion for Stay and Midwest Generation's
supporting memorandum. CICI supports both a stay at this point in the proceedings and re-
opening the stakeholder process to close the analytical and informational gaps in IEPA's
proposed water quality standards.
8. On June 30, 2008, IEPA filed a brief response to the District's Motion for Stay
essentially stating that it believes that it has met all filing requirements under the state rules, and
that it adequately supported its proposed water quality standards.
9. Also on June, 30, 2008, the Stepan Company ("Stepan") filed a memorandum that
concurs with the District's Motion for Stay and notes three additional analytical deficiencies in
IEPA's proposed water quality standards.
10. In total, Respondents offer new testimony and case law that they incorrectly believe
support their contentions. Respondents also misstate many
of the legal standards on which they
base their claims. Additionally, Respondents mischaracterize much
of the record that they
contend supports denying the District's Motion for Stay. Finally, Respondents accuse the
District
of bad faith in filing the Motion for Stay and present "cynical" views of the District's
intentions.
11. To avoid prejudice, the District should have an opportunity to address the Orris
Affidavit, in order to rebut new assertions challenging one
of the District's studies. The District
relied solely on the record compiled to date in its Motion to Stay, thus, the District has not had a
chance
to cross-examine Dr. Orris as to this new information before it was entered onto the
record
by the Center.
It
would be patently unfair for the Board to rely on Dr. Orris' assertion
without affording the District an opportunity to respond.
3
Electronic Filing - Received, Clerk's Office, July 11, 2008
12. Also, because the Respondents misstate the record, the relevant legal standards, and the
intentions
of the District in filing the Motion for Stay, it is necessary for the District to file a
reply, to avoid prejudice that could arise
if the Board relies on this information. Respondents'
citations to the record are misleading and need to be clarified. Also, the District would face
serious prejudice
if the Board were to accept Respondents' misstated legal analyses. Finally, the
District should have an opportunity to clarify its intentions with the Motion for Stay and reply to
Respondents' accusations
of bad faith.
13. Attached to this Motion as Exhibit A is a proposed Reply in Support of Motion to Stay
that the District seeks to file.
WHEREFORE, the District requests that the Board grant this Motion for Leave to file the
attached Reply in Support
of Motion to Stay, and grant all other relief that the Board deems fair
and just.
Respectfully submitted,
By:
Reclamation District
of
Fredric P. Andes, Esq.
Carolyn
S. Hesse, Esq.
David
T. Ballard, Esq.
Barnes
&
Thornburg LLP
One North Wacker Drive
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
4
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT A
Electronic Filing - Received, Clerk's Office, July 11, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND THE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO 35 Ill.
Adm. Code Parts 301, 302, 303 and 304
)
)
)
)
)
)
)
)
R08-9
(Rulemaking - Water)
METROPOLITAN WATER RECLAMATION DISTRICT OF
GREATER CHICAGO'SREPLY IN SUPPORT OF MOTION TO STAY IPCB R08-9
The Metropolitan Water Reclamation District of Greater Chicago (the "District")
respectfully submits this Reply in accordance with Ill. Adm. Code tit. 35 § 101.500(e), to address
the Responses to the District's Motion to Stay that were filed by the Illinois Environmental
Protection Agency ("IEPA"), the Environmental Law and Policy Center ("Center"), the
Southeast Environmental Task Force ("SETF"), and the People
of the State of Illinois ("the
People") (collectively, the "Respondents"). As outlined in its Motion for Leave to File this
Reply, the District's Reply is necessary to prevent prejudice to the District from the
Respondents' challenges to factual accuracy and legal authority in the District's Motion to Stay,
as well as to prevent prejudice from Respondents' introduction
of an affidavit providing an
opinion on one
of the studies at issue in the Motion to Stay. Furthermore, this Reply is necessary
to prevent prejudice from implicit accusations
of bad faith raised by certain Respondents in their
Responses. In support
of this Reply and its Motion to Stay, the District states as follows:
INTRODUCTION
Despite the multiple, baseless accusations of bad faith and foot-dragging in the
Responses to the District's Motion to Stay, no party has been able to submit properly supported
evidence to undermine the substantial analytical problems with IEPA's proposed water quality
standards for the Chicago Area Waterways System (the "CAWS") and the Lower Des Plaines
Electronic Filing - Received, Clerk's Office, July 11, 2008
River ("Lower Des Plaines") that were pointed out in the District'sMotion. These problems will
be alleviated
if a stay is granted, since that would give time for the District and other parties to
complete and submit reports to fill in IEPA'stechnical and legal gaps.
From a review
of their Responses to the District's Motion, the Respondents seem to
recognize that a stay would be proper
if it would avoid wasting time, expenses, and resources.
Indeed, the very purpose of the District's Motion is to save the Board, and all of the parties, the
needless expense
of pushing forward with rulemaking proceedings that ultimately may have to
be repeated once further information has been generated and discussed by the parties. In the
coming months, the District intends to present over 20 witnesses on various issues at hearings.
It
is the District's understanding that other regulated parties also intend to present a series of
witnesses, and some of the Respondents are also expected to present witnesses. Based on the
substantial number
of witnesses that will then need to be questioned, it does not make sense to go
forward with this process at this time if much of the further support necessary for this
Rulemaking will be provided by the reports outlined in the District'sMotion. Thus, a stay would
avoid incurring the unnecessary costs associated with the upcoming hearings, and will hold the
Rulemaking in abeyance until the analytic gaps are filled with data and analysis from various
forthcoming reports. Conversely, the alternative will result in a fruitless exercise
of the Board's
and the parties' resources.
Moreover, other than IEPA (who does not raise the issue), Respondents conveniently
ignore that many
of the reports identified in the District's Motion were either specifically
requested
by
IEP
A, or are being conducted to address issues raised by the reports requested by
2
Electronic Filing - Received, Clerk's Office, July 11, 2008
IEP
A.
That is why the studies and reports are being developed at this time, and not earlier.!
Additionally, Respondents fail to recognize that the District or other parties could not have
known to initiate many
of the studies at issue until IEPA proposed the water quality standards in
October 26, 2007 and provided its insufficient data. Thus, Respondents' accusations of foot-
dragging are completely unfounded.
IEPA has been developing new water quality standards for the CAWS since 2000, yet
IEPA testimony shows that the standards still are not scientifically and legally sound. Any sense
of urgency raised by Respondents should not be used as an excuse to approve scientifically and
legally unsound water quality standards. Furthermore, it is disingenuous for Respondents to
claim a sense
of urgency for the Rulemaking at this time, because none of the Respondents took
steps to expedite this process in the six-plus years before the District's Motion to Stay. And,
contrary to Respondents' assertions, the District requested the stay as soon as was proper
-- after
it learned the full extent
ofIEPA's lacking support, analyses, and data.
ARGUMENT
I. Respondents fail to raise any issue that undermines the need for a stay to avoid a waste
of time, expenses
and resources.
The Respondents offer a number of specific challenges to the District's Motion to Stay
that, as fully addressed below, do not demonstrate that the Motion to Stay is unfounded. The
Respondents' basic common themes are that the Use Attainability Analysis ("UAA") process has
been ongoing for six years, and that IEPA either has adequately supported its decisions on the
record or does not need to support some
of the decisions questioned by the District
(i.
e.,
to
require disinfection). The District does not dispute that IEPA "has answered numerous questions
1 These arguments are especially striking considering that the Illinois Attorney General's Office represents IEPA, in
various legal proceedings, and should know that its own client requested the reports to complete its analysis for the
rulemaking.
3
Electronic Filing - Received, Clerk's Office, July 11, 2008
over a span of 10 hearing days with respect to its proposal. In fact, there have been over 2,500
pages of testimony." IEPA Resp., at ,-r 11. The District also does not dispute that this
Rulemaking has been ongoing for at least six years, and that IEPA has gathered much data
during that time. However, a great volume
of data is not a substitute for a complete analysis.
Much
of the testimony taken to date shows that IEPA has failed to perform the necessary
technical and legal analysis over that six-year span to justify its proposal. Memoranda filed in
this Rulemaking by Midwest Generation L.L.C. ("Midwest Generation"), the Stepan Company
("Stepan"), and Chemical Industry Council
of Illinois ("CICI") support the District in this claim.
Thus, Respondents are wrong to assert that
IEPA's Rulemaking is technically and legally
justified.
1.
Respondents incorrectly present various legal standards
The Respondents assert that IEPA does not have the burden to justify the changed
designated uses for the
CAWS and the Lower Des Plaines, because there is a rebuttable
presumption that all waters can support aquatic and recreational uses. Center'sResp., at pp. 4-5.
Respondents appear to blend two distinct legal issues into one grand exemption for IEPA. Such
an exemption does not exist.
Respondents are correct
ill
one respect: IEPA would not be required under federal
regulations to justify water quality standards
if they designated full fishable/swimmable uses
consistent with Clean Water Act ("CWA") section
101(a)(2) (33 U.S.c. § 1251(a)(2)).
However, this streamlined process does not apply where the state is designating something
other
than
those standards specified in the
CWA. The regulations specifically require that states
support designated uses other than full fishable/swimmable with a UAA.
40 C.F.R. §
131.100)(1). IEPA has made very clear that it is not assigning full fishable/swimmable
4
Electronic Filing - Received, Clerk's Office, July 11, 2008
standards for the CAWS and the Lower Des Plaines, because these waters cannot meet those
standards:
While there has been improvement and potential exists for additional
improvement; the UAA did not find the Lower Des Plaines River to
be
capable of full attainment ofthe aquatic life and recreational goals of
the Clean Water Act for un-impacted waters in the foreseeable future.
Exhibit 1, IEPA's Statement of Reasons at p. 22. Hence, IEPA's proposal is subject to the UAA
criteria, and
as noted above, it is the state that must justify the changes to water quality standards
-- not stakeholders. Furthermore, under Illinois law IEPA must consider the technical feasibility
and economic reasonableness
of all rulemakings. 415 Ill. Code
R.
5/27(a).
Respondents also attempt to apply to this situation a USEPA policy that is entirely
irrelevant: Under USEPA's "rebuttable presumption" approach, USEPA assigns full
fishable/swimmable designated uses when exercising authority under CWA sections
303(c)(3),(4)
(33 U.S.c. § 1313(c)(3),(4)), unless the state performs a UAA to support other
designated uses.
Respondents misapply this policy here by twisting this "rebuttable
presumption" into somehow shifting the responsibility to the District to support a UAA.
Respondents cite only Kansas and Idaho caselaw in support. However, those cases are not
binding and are, ultimately, irrelevant. Both cases,
Idaho Mining Association, Inc.
v.
Browner,
90 F.Supp. 2d 1078 (D. Idaho 2000) and
Kansas Natural Resource Council, Inc.
v.
Whitman,
255
F.Supp. 2d 1208 (D. Kan. 2003), address situations where USEPA defaulted to full
fishable/swimmable designated uses when the state either missed a deadline for developing water
quality standards or failed to conduct a UAA to support its designated uses. First, these cases
show that Respondents raise the rebuttable presumption prematurely, as IEPA has not even
obtained approval from the Board for these standards let alone sought approval from USEP
A.
Also, in citing these cases Respondents overlook the fact that IEPA actually
is
conducting a
5
Electronic Filing - Received, Clerk's Office, July 11, 2008
UAA for these water bodies, which would rebut this presumption if it ever applied (assuming the
UAAs are supportable). More importantly, these cases
do not change the fact that a UAA
remains the
state's
responsibility, never the District's. Hence, these cases have no negative
effect on this Rulemaking or the Motion to Stay.
If anything, these cases actually
support
the
District's request for stay at this point in the Rulemaking, because they demonstrate the
importance
of an adequately supported UAA to ensure that IEPA's proposed standards will
withstand USEPA scrutiny upon review.
In addition, the Respondents wrongly assert that Illinois statutes specifically require
disinfection for vast stretches
of the CAWS, because they are "protected waters." Center's
Resp., at
p. 7. The Respondents provide an incomplete citation that conveniently ignores
important criteria for assessing whether a water body qualifies as "protected waters." The
relevant Illinois statute actually defines "protected waters"
as:
Protected waters are defined as waters which, due to natural
characteristics, aesthetic value or environmental significance are
deserving of protection from pathogenic organisms. Protected waters
will meet one or both
ofthe following conditions:
1) presently support or have the physical characteristics to support
primary contact;
2) flow through or adjacent to parks or residential areas.
Ill. Adm. Code tit.
35 § 302.209(a). This language requires more than simple proximity to parks
or residential areas, as the Respondents assert. Instead, the language demands that protected
waters also must have "natural characteristics, aesthetic value or environmental significance"
that justifies protection from pathogenic organisms.
Id.
To focus solely on the proximity to
parks or residential areas, as Respondents have done, is misleading. While the proximity
to
parks and residential neighborhoods is one condition and characteristic of a protected water, it
also must have natural characteristics, aesthetic value or environmental significance that justifies
6
Electronic Filing - Received, Clerk's Office, July 11, 2008
protection. There is no evidence that the CAWS meets such criteria and, thus, they are not
protected waters.
Respondents go
on to suggest that the District is wrong to even question whether the
control measures recommended in the UAA
would lead to 100% attainment of the standards in
all parts
of the CAWS. Respondents believe that IEPA "does not have an obligation to propose
standards that can be met easily, let alone 100%
of the time...[i]n fact, IEPA can propose and the
Board can adopt standards that initially cannot be met in order to force improvements to existing
technology." Center's Resp., at
p. 10 (citing
Granite City Division of National Steel Co.
v.
[EPA,
155 Ill. 2d 149, 182-83, 613 N.E.2d 719, 734 (Ill. 1993)). Respondents' citations are
misleading because they focus only on
IEPA's and the Board's duty under state law to consider
certain factors when developing all rules.
See
415
Ill.
Code
R.
5/27(a).
Granite City
does not
recognize or even address
IEPA's duty with respect to UAAs, which is to identify the
attainable
uses for a water body and to
remove unattainable uses. See
40 C.F.R. § 131.10(g) ("States may
remove a designated use which is not an existing use..
.if the State can demonstrate that attaining
the designated use
is notfeasible.
") (emphasis added). Thus, this case is irrelevant to the issue of
whether IEPA is allowed to assign water quality standards through a UAA that cannot initially
be met.
Illinois and federal regulations do not define "attainable"; however, UAA-designated
water quality standards must be met
at some point
in order to logically be considered attainable.
IEPA testimony shows that they cannot guarantee that the control measures recommended in the
UAA would lead to 100% attainment at some point in time, which means that the water quality
standards are not attainable. Thus, the District properly questions whether IEPA can guarantee
that the proposed water quality standards can be met -- which it cannot.
7
Electronic Filing - Received, Clerk's Office, July 11, 2008
Furthermore, to allow a state to assign water body uses that can never be met 100% of the
time
(i.e.,
unattainable uses) would conflict with the total maximum daily load ("TMDL")
program. States are required to develop TMDLs for water bodies not currently meeting water
quality standards
(i. e.,
impaired waters) "at a level necessary to implement the applicable water
quality standards... "
33 U.S.C. § 13l3(d)(1)(C);
see also
40 C.F.R. § 130.7(c) ("For pollutants
other than heat, TMDLs shall be established at levels necessary to attain and maintain the
applicable narrative and numerical [water quality standards] ...
). If IEPA were to assign uses to
the CAWS that could never be met 100% of the time, then
it
could never design a TMDL for a
water body that would lead to achievement
of water quality standards. This clearly is not
allowable under the CW
A.
2.
Contrary to Respondents' claims, the District accurately cited the record in
its Motion to Stay and raised well-founded concerns for the proposed
aquatic life uses.
In order to avoid restating large sections of the transcript in the Motion to Stay, the
District paraphrased for the Board various transcript excerpts identifying analytical and technical
holes in the support for IEPA's proposed aquatic life standards. The District accurately
paraphrased these excerpts.
However, Respondents attempt to manipulate the District's
paraphrases with misleading characterizations
of the record and citations that do not address the
District'spoints. Examples
of Respondents' misleading efforts are set out more fully below.
The Respondents claim that the District did not accurately characterize testimony from
the record, when the District points out IEP
A's concession that it could not define a non-arbitrary
line to distinguish between Aquatic Life Use A waters and Aquatic Life Use B waters.
To
support their assertion, the Respondents recite IEPA testimony describing how the Agency
separated QHEI into two separate groups for Aquatic Use A and Use B waters. Center's Resp.,
at
p. 8. The District does not dispute that IEPA separated water body segments into two distinct
8
Electronic Filing - Received, Clerk's Office, July 11, 2008
groups; however, the District continues to believe that IEPA lacked a clear, justifiable line for
identifying those groups.
In support of the District'sassertion, the full transcript excerpt cited in
the Motion to Stay is as follows:
Mr. Andes [counsel for the District]: Well, I'mtrying to understand
why the decision was made to put [the line between Aquatic Life Use
A waters and Use B waters] at 40 [QHEI score] instead
of46 [QHEI
score].
If46 was a sort ofneat dividing line in terms of a goal, why 40
[was used] instead?
Mr. Smogor [lEPA witness): I think we'rejust
speaking
generally
there when we're saying
generally the range..
.Ifyou refer to [figure
5.2 in Attachment B to the Statement
of Reasons] like Rob [Sulski]
was earlier and look at the QHEI scores for the waters that are actually
CAWS A,
that'sabout the general range ofthose scores...Exactly
where that line
is, I really couldn'ttellyou,
but we'retalking about
attainment in terms
ofrelative ability to attain, we'resaying upper Des
Plaines island pool is above that Clean Water Act line,
we're saying
that
CAWS A waters is somewhere below that Clean Water Act line,
and relatively
CAWS B and Branden pool waters are even a little bit
lower than the
CAWS A waters.
***
Mr. Andes: What was the basis for putting the waters with QHEI
between 40 and 45 in A rather
than B?
Mr. Smogor:
I thinkjust relatively,
and again, Figure 5.2 in
Attachment B shows this, that there is
kind ofa break
in the QHEI
scores.
That was the judgment that was made. There's a break in
the QHEIscores and the
waters that were placed into CA WS A
generally have the lower QHEIscores
which represents that they can
attain a higher biological condition than the waters that were put into
the
CAWS B Branden pool group. Whether or not that'sexactly ---
There
wasn'tany --- maybe this is getting better to your question.
There was not any exact line in QHEIscores which made that
decision that
I'm aware of.
March 10,2008 Hearing, transcript at pp. 28-30 (emphases added). The emphasized portions of
this excerpt clearly identify that IEPA had no clear justification for Group A characteristics
versus Group B characteristics. Instead, IEPA identified loose groupings of waters with a
"general range
of ... scores."
Id.
at p. 28. Loosely grouping waters in this manner without a
cutoff is arbitrary and capricious. Clearly defining the cutoff for Group A and Group B is very
9
Electronic Filing - Received, Clerk's Office, July 11, 2008
important to the District and other stakeholders, because the differences between groupings carry
significant regulatory consequences.
IEPA's admission that it did not identify a clear line of
demarcation supports the District's point that IEPA needs to consider further data to fully assess
this issue.
The Respondents next assert that the District erred in pointing
out IEPA'sconcession that
it does not have actual data
on benthic and sediment conditions. The Respondents claim that the
District is wrong because
"IEPA stated repeatedly that it considered existing benthic and
sediment data
in the weight of evidence consideration...." and that IEPA's witness "never
conceded that these issues were ignored
or overlooked by IEPA." Center's Resp., at p. 8. The
Respondents misunderstand the District'sassertion. The District does
not assert that IEPA failed
to consider the information that it had
on benthic and sediment conditions when making the
UAA
decision. Instead, the District asserts that IEPA did not have adequate benthic and
sediment data to make
an informed UAA decision in the first place. The record demonstrates
that IEPA admitted that it needs more data to support a complete evaluation
of sediment impact
on water quality:
Mr. Andes: I'msorry, I'mtrying to understand how the benthic data
in particular was used, because my impression had been that it really
wasn'tused.
It
was looked at, but was it actually used in the process?
Mr. Essig [lEPA witness]: I don'tthink it was necessarily looked at in
relation to the biotic potential because, as I explained, the index that
was used is not looking at the entire macrovertebrate community like
the fish index does.
And there'smore of a -- there
has
been
documented relationships between how the QHEI was developed and
the index
ofbiotic integrity. So there'sa lot ofkey relationships that
have been developed for that or that have been seen in those two
indeces [sic]. So that is primarily used both in Ohio, I believe, and I
think in the
UAA process to indicate the biotic potential ofthe system.
The macrovertebrate data was used primarily, I think
in
this case, and
it'smy interpretation
ofmore ofwhat'sthe current condition
in
relation to what that index was designed to show which is oxygen-
consuming water quality problems like BOD and ammonia. That's
10
Electronic Filing - Received, Clerk's Office, July 11, 2008
primarily what that index indicates.
It
doesn'tindicate habitat
relationships, per
se.
Mr. Andes: So the benthic data was considered in defining the current
condition,
but not the attainable condition.
Is that accurate?
Mr. Essig: I think that that might be a fair assessment.
Mr. Andes: And the sediment data.
Mr. Sulski [IEPA witness):
The sediment quality data was looked at,
everything that the contractors couldget their hands on.
But it's
again, sediment determination or -- determinations
of sediment impact
are another weight of evidence, but even more complex than water
quality and fish inhabitat [sic].
And the data that we had was mostly
hulk chemistry. There
are some things you can do with
-
ifyou
have otherparameters along
with that bulk chemistry, but in most
cases those were missing.
Then you have to look at the physical
condition
ofthe sediment. So, you know, in a lot ofcases there wasn't
-- there weren'tSIB analysis designating what the particle sizes ofthe
different sediments are. Then you have the whole biological realm,
and then the biochemical realm; biochemical realm being
bioaccumulation. The biological realm being, you know, what is the
whole sediment toxicity or what is the poor water sediment toxicity.
And all ofthat sort ofinformation is needed to really make a
determination. So the bottom line
is there wasn'tenough data to
make a real determination on the impact ofsediments on any of
these
-
in any ofthese waterways.
March 10, 2008 Hearing, transcript at pp. 21-23 (emphases added). As demonstrated in the
above testimony, IEPA conceded that it did not have adequate benthic and sediment data, again
showing that
IEPA'sUAA analysis is not complete and is in need of supplemental information.
The Respondents also accuse the District
of "misrepresenting the testimony regarding
fish spawning, claiming that IEPA conceded there was no data showing that spawning occurs in
these waterways." Center's Resp., at p.
9. The District misrepresents nothing in its Motion to
Stay, but states a simple fact from the record that IEPA admits it has nothing but inferences
of
fish spawning based on the presence of small fish:.
Mr. Andes: On H is there data or evidence offish spawning, and this
is a little unclear when we say in all ofthe waters proposed to be
designated ALUA. I would ask for each ofthe waters, designated as
11
Electronic Filing - Received, Clerk's Office, July 11, 2008
ALUA.
I would askfor each ofthe waters, designated as ALVA, is
there data or evidence offISh spawning.
***
Mr. Smogor: Evidence of? I think there is. It'sbased on - We have
data from
MWRB fish data of 2001 through 2005 that we looked at,
and based
on small sizes of some ofthose data - the data basically
goes site by site, collection site. They sample the fish and they let you
know
how many of each type or species offish, and they also create -
they also provide some weights and size ranges.
So based on the
small
sizes ofsome ofthose individuals captured, one could deduce
that there must be some kind ofspawning going on in that
-
in those
waters because ofthe small sizes offISh present
These are small
sizes compared to their adult size
of species.
In terms ofthe specifics,
again, I don'thave anything right infront ofme, but there is
presence ofyoungfISh in those waters.
***
Mr. Andes: Yes. We'retalking a lot about spawning, but I seem to
recall a discussion about yesterday,
correct me
if
I'm wrong, but
yesterday there wasn't
any actual evidence ofspawning, it was
simply that there werefISh collected that were smaller than normal;
am I right?
Mr. Smogor: Ifyou'rereferring to, I think, some ofmy testimony
yesterday, you asked is there evidence
of spawning
in
[CAWS] and
maybe I didn'tuse the word inferred, but
there was inferred evidence
ofspawning, which is not
-
I agree that'snot direct observations of
fISh spawning. But the inference is that
if
small individuals do occur
across several species, it'slikely that they did occur
-
that they did
spawn somewhere in the system to allow the occurrence ofthose
small sub-adult
individuals.
March 10, 2008 Hearing, transcript at pp. 74-75 (emphases added); March 11, 2008 Hearing,
transcript at p. 232 (emphases added).
In other words, IEPA does nothing to distinguish between
sub-adult individuals and simply small fish. This approach is fundamentally flawed, because it is
based
on the unsupported assumption that all small fish are young and the result of spawning.
The District believes
that IEPA's inferential approach is not a substitute for evidence, and that
proof of
actual fish spawning
is important if IEPA claims that the CAWS can and does support
an aquatic life use.
This is yet another example of an issue on which IEPA is in need of
supplemental data to complete its UAA analysis.
12
Electronic Filing - Received, Clerk's Office, July 11, 2008
The Respondents also claim that despite the District's contentions, IEPA did not concede
that it was required to look at sediment data to evaluate habitat issues and failed to do so.
Respondents cite testimony from IEPA witness Mr. Chris Yoder in support, indicating that
sediment data "was not appropriate to factor into a QHEI study because the QHEI measures
physical habitat, not chemical parameters . . ." and that chemical parameters "could include
sediment toxicity data, but did not state that this data was 'necessary' as the MWRDGC
suggest." Center's Resp., at p. 10. This again confuses the issue raised by the District, which is
that sediment data showing poor sediment quality is important to identifying physical habitat,
even
if it is not directly important to the QHEI scores used by IEPA. In other words, the District
asserts that it is prudent for IEPA to consider
actual sediment data
in addition to the QHEI
scores. Mr. Yoder agreed that sediment data is important for "complete" analyses
of physical
habitat, even though they did not use it for purposes
of the QHEI scores:
Mr. Andes: Okay. On the issue of sediment, and we will provide data
on this issue eventually for the record. Sediment samples from the
CAWS exhibit old sheens, odors, hydrogen sulphate [sic] odors, other
evidence
of poor quality. How if at all, can those be...accounted for in
the QHEI?
Mr. Yoder [IEPA witness]: Well they'renot. And I'mnot -- it'snot
appropriate. That would
be accounted for through some type of
chemical analysis.
Mr. Andes:
But they are
-
those
-
the poor sediment quality would
be relevantfor organisms; correct?
Mr. Yoder:
Yes.
Mr. Andes:
In terms ofhabitat, it would affect the habitat quality?
Mr. Yoder:
Well, it would affect the macro suitability.
But, I mean,
the intent
ofthe QHEI is to evaluate physical habitat not chemical
habitat.
And it'sintended that
if
we were to do a complete evaluation
ofthe system, like the CAWS, we would absolutely have to have
chemical
data to go along with that
13
Electronic Filing - Received, Clerk's Office, July 11, 2008
February 1, 2008 Hearing, transcript at pp. 181-182. Thus, as admitted by Mr. Yoder
(id),
sediment chemistry should have been accounted for to conduct a complete UAA evaluation.
This is yet another flaw in IEPA's UAA analysis.
The Respondents next argue that the District wrongly claimed an IEPA admission that it
does not have data to support its assertion that sediment quality is improving. Center's Resp., at
p. 10. Mr. Sulski'stestimony clearly disagrees with Respondents and supports the fact that IEPA
did not have actual data showing sediment quality improvement:
Mr. Su1ski: That [sediment quality is improving is] another whole
story. Do you want me to reiterate that story too?
Mr. Andes: Let'sgo through that again...
Mr. Sulski: Okay. So the question is the sediment improving and how
is it?
Mr. Andes: Right.
Mr. Sulski: Okay. Yes. We
believe
the sediment is improving for a
number of factors, for a number of reasons. No.1, the
volume has
gone down
with TARP.
Mr. Andes: The volume of?
Mr. Sulski: Solids that create sediment, additional sediment. So the
volume has gone down.
The quality ofthose additional contributions
have improved because
ofvarious programs rangingfrom storm
waterprograms which,
you know, are designed to improve quality of
sediments to pretreatmentprograms which is designed to improve
the solids
or quality within the wastewater.
Mr. Andes:
Those are qualitative conclusions. Am I right? You
don'thave any data
-
Do you have any data on those issues?
Mr. Su1ski: I mean, I'vegot data within the Illinois EPA that the
sludge quality and the quality
of solids going into the wastewater
treatment plants has improved over time with the pretreatment
program. In fact, the District has a program now where they distribute
their sludge basically in an unrestricted manner because
ofthe
cleanliness
of it. But back to the question,
other reasons that lead us
to believe that
the situation is improvingfor sediments is some ofthe
programs that we've undertaken to reduce nonpoint source
contamination such as
-
wel~
I mean, theAgency collects mercury
thermometers
and gives away alcohol thermometers.
We have
household hazardous waste collection programs which removes items
14
Electronic Filing - Received, Clerk's Office, July 11, 2008
that could be dumped down sewers.
I mean, there's a whole bunch
ofprograms that have been in placefor a while that would
-
that are
gearedfor improving conditions and sediment is the sinkfor a lot of
those things in the past.
Mr. Andes:
But the sediment data that is in the UAA report was not
used in deciding whether sediment quality
is improving. Am I right?
Mr. Sulski: The sediment data in the report was not used to invoke a
UAA factor.
We couldn't. We didn'thave enough information.
Mr.
Andes: That wasn'tmy question.
My question was the sediment
data used in the determining whether the sediment quality is
improving in part ofthis analysis?
Mr. Sulski:
Not that I'm aware of.
March 10, 2008 Hearing, transcript at pp. 24-26 (emphases added). This testimony shows that
IEPA used only qualitative inferences that sediment quality is improving, rather than actual
sediment data. IEPA needs actual data to complete a proper UAA.
3.
Contrary to Respondents' claims, the District accurately cited the record in
its Motion to Stay
and raised well-founded concerns for the proposed
recreational uses.
Respondents also attempt to rebut the District's recreational standard claims by
mischaracterizing the record and misdirecting the Board's attention. As shown below, the Board
should disregard Respondents' attempts.
Respondents again assert that the District "distorts and misstates both the applicable
standard and the record," because Respondents believe "[t]he fact that IEPA does not have the
'proper indicator to assure protection
of recreational users' . .. is completely irrelevant given
that IEPA did not propose an ambient pathogen standard applicable to any portion
of the
CAWS." Center's Resp., at
p. 11. In other words, Respondents believe that IEPA need not
justify its standards, due to the fact that
it
"proposed effluent standards that, if complied with by
[the District], will assure that it disinfects its effluent so that pathogens that its plants would
otherwise discharge during dry weather conditions will not be alive to make people sick."
Id.
In
15
Electronic Filing - Received, Clerk's Office, July 11, 2008
this case, Respondents wish to apply a test akin to the "ends justify the means" to the UAA
process, whereby requiring disinfection allows
IEPA to skip the UAA process entirely. This is
not allowed by the regulations and should be given no credence here.
IEPA cannot presume that disinfection is proper
in all cases to protect public health;
instead, the Agency must identify the appropriate levels and treatment necessary to protect public
health specific to the
CAWS. The District does not believe that !EPA can justify the proposed
recreational standards without a clear indicator
of what is necessary to protect recreators.
Without a proper indicator for protecting public health, IEPA has no baseline to analyze whether
public health actually will
be protected by the proposed water quality standards (and the
recommended treatment). Hence, because
!EPA did not identify the proper public health
indicators, it has not justified the recreational use changes for the CAWS. This further confirms
the need to stay the Rulemaking, to allow the District and others to provide information that will
help IEPA identify the proper indicator for public health.
Additionally, Respondents claim that the proposed recreational uses are safe and that
IEPA has adequately demonstrated that fact. Center's Resp., at p. 11.
In support, Respondents
cite a portion
of the record that focuses entirely on the wrong issue; thus, it should not impact the
Motion to Stay. Respondents' excerpted testimony addresses bacteria levels for safe recreation
in the CAWS; whereas, the dangerous activity at issue discussed
in the District's Motion to Stay
is recreating in the
CAWS within proximity of heavy large boat and barge traffic. The excerpted
language below, and cited
in the Motion to Stay, shows that IEPA concedes that recreation in the
CAWS is
"not advisable" and "may not be safe:"
Mr. Andes: Isn'tthere a risk that by designating this way [recreational
use] and sort
of stating that it'sokay to have incident contact
recreation [on the water body] we'repromoting the dangerous
activity?
16
Electronic Filing - Received, Clerk's Office, July 11, 2008
Mr. Twait [IEPA witness): I don'tknow that the Agency'spromoting
the use
ofthe water. I think the Agency is protecting the uses - or the
recreators.
Mr. Andes: Is it more likely that by protecting that use you are
making it more likely that more people will
do it?
Mr. Twait: I don'tknow:
There'speople out there doing it now
when it'sdefinitely not advisable.
But is it - The question that we've
relied on - or the facts that we'verelied on is there'sa boat dock - or a
boat launch there that can have small craft into that section
ofwater
even though it, as you say, may not be safe.
January 29, 2008 Hearing, transcript at p. 222 (emphases added). These safety concerns call
IEPA's recreational use designation into question.
Respondents next claim that the District needs to explain why IEPA must analyze the
feasibility
of various disinfection technologies.
Center's Resp., at p. 12.
Further, the
Respondents claim that disinfection is appropriate by default and that the District "cannot claim
with a straight face that it is not capable
of meeting this effluent standard, since a huge number
of Illinois dischargers as well as almost all of the major municipalities in North America do so."
Id; see also
SETF'sResp., at p. 8. Despite Respondents' broad and dismissive statements, IEPA
and the Board remain obligated to consider the technical feasibility and economic reasonableness
of the proposed water quality standards under Illinois state law.
See
415 ILCS 5/27(a).
Contrary
to Respondents' assertions, IEPA and the Board cannot simply apply a general template
that comes to the default conclusion that disinfection is appropriate under all circumstances,
because the technical feasibility and economic reasonableness are inherently site-specific
determinations.
In this case, the District operates the largest wastewater treatment facility in the world,
along with two other extremely large facilities, and would bear significant costs and technical
difficulties to disinfect the several billion gallons
of water that come through its facilities every
day. The fact that other systems have historically incorporated disinfection is immaterial
to this
17
Electronic Filing - Received, Clerk's Office, July 11, 2008
particular situation, considering that the economic and technical considerations for the District's
facilities are significantly different from other smaller facilities that incorporate disinfection.
Also, the proposed water quality standards and disinfection requirements should not
automatically be presumed to be justified without fully considering the economic and technical
impacts. Hence, when IEPA admits that it did not evaluate other technologies, it calls into doubt
whether IEPA met its obligation to consider the technical and economic impacts
of the proposed
water quality standards. This failure is yet another flaw in the UAA that can be remedied with
further study.
Respondents inaccurately claim that, contrary to the District's claim in the Motion to
Stay, IEPA actually considered combined sewer overflows ("CSOs") and municipal separate
storm sewer systems ("MS4s") as other sources
of pathogens to the CAWS. In support,
Respondents note that IEPA "decided that the volume and frequency of discharges from these
intermittent sources
[i.
e.,
CSOs and MS4s] is relatively small in proportion to the large and
constant flow
of effluent discharged into the CAWS from wastewater treatment plants."
Center's Resp., at p. 12. The record belies the Respondents' implication that CSOs and MS4s
are less important to the CAWS, or that IEPA adequately considered impacts from those sources:
Mr. Andes: Question B.
Did IEPA take into account the impacts of
all ofthe sources ofmicroorganisms to the CAWS, including
lingering effects
ofwet weather, in their assessment ofwater quality
improvement and risk reduction expected
to result ffrom] effluent
disinfection?
Mr. Twait:
We did not look at all sources.
***
Mr. Andes: In terms ofthe risk, and I believe that Mr. Sulski talked
about reducing risk.
In fact, the significant issue in terms ofbacteria
in water bodies is the number ofcombined sewer oveiflow
dischargers. Am I right?
Mr. Twait:
Yes.
18
Electronic Filing - Received, Clerk's Office, July 11, 2008
Mr. Andes: Which I believe we talked about an average of, I think the
testimony last time, was
an average of 15 times - 15 year times about
300 different overflow points.
Mr. Twait: Yes.
Mr. Andes: Okay. That also -
So this proposal doesn'taddress that
at
alL So those sources ofbacteria are unaddressed by this
proposal?
Mr. Twait:
They are unaddressed by this proposal, yes.
Mr. Andes:
And any sources ofbacteriafrom municipal separate
storm sewer systems, MS4s,
are also unaddressed by this proposal?
Mr. Twait:
Correct.
***
Mr. Andes:
But the contributions ofbacteriafrom other sources,
particularly during wet weather eventsfrom MS4s andfrom CSO
discharges which
are not addressed by the proposal, the agency
hasn'treally done any kind
ofanalysis to the extent ofthe risk
caused
by those discharges. Am I right?
Mr. Sulski:
The extent ofthe risk, not.
January 29, 2008 Hearing, transcript at p. 192 (emphases added); April 23, 2008 Hearing,
transcript at pp. 76-77,
79 (emphases added). These excerpts cannot more clearly demonstrate
that IEPA failed to consider these wet-weather sources in this Rulemaking. By not considering
inputs from CSOs and MS4s in this Rulemaking, IEPA has failed to conduct a complete analysis
and cannot justify disinfection by the District.
Respondents assert that
rEPA need not analyze the costs of meeting the proposed
dissolved oxygen ("DO") standard. Center's Resp., at
p. 13. As noted above, Illinois law
requires the IEPA and the Board to consider the technical feasibility and the economic
reasonableness
of each rule they promulgate. Thus, the District is warranted in questioning
whether IEPA considered the economic reasonableness
of requiring the District to meet DO
levels. And, when IEPA admits that it did not consider the costs
of complying with the proposed
DO standards for the Cal-Sag Channel or the Sanitary and Ship Canal, it admits that it has not
met its obligations under state law:
19
Electronic Filing - Received, Clerk's Office, July 11, 2008
Mr. Andes: Stop for a minute.
The key point is the Agency has not
assessed what the cost would
be to comply on Cal-Sag Channel and
the Sanitary Ship Canal
with the newproposed standards ofDO.
Mr. Sulski:
Correct.
April 23, 2008 Hearing, transcript at p. 184.
4.
The affidavit provided by Respondents is generic and not compelling to
deny the District'sMotion to Stay.
Respondents assert that the Board should not stay the Rulemaking until the District
completes its studies, because Respondents have an affidavit stating that
one
of the District's
studies
is not grounds for staying the Rulemaking. Center's Resp., at pp. 13-16. Respondents
completely ignore the totality
of the District's Motion to Stay in disputing only one of the
numerous studies that the District believes are required to adequately support the Rulemaking.
The District does not rely solely on the epidemiological study as the grounds for requesting the
delay; rather, it is the total information gathered from the studies mentioned in the District's
Motion
to Stay that the District believes is necessary. Furthermore, testimony from a party
uninvolved with the Rulemaking or the study at issue is not persuasive evidence that the
District's request for a stay is unfounded. Dr. Peter Orris' affidavit only cites to general
pathogenic impacts on water bodies, without addressing IEP
A's significant shortcomings in
IEPA's proposal or the significant data that will result from the District's full array of studies.
Therefore, Dr. Orris' affidavit should be given very little
if any weight.
II.
A stay of the Rulemaking is necessary to save the Board and the parties time,
expenses
and resources, and will not cause environmental harm.
According to Board authority, it is within the Board's sole discretion to grant or deny
stays.
Israel-Gerold's
v.
IEPA,
PCB No. 91-108 (July 11, 1991). In determining whether a stay
is appropriate, the Board will examine such factors as whether a stay will help avoid wasting
time, expenses, and resources; whether a stay will avoid practical difficulties; whether a stay will
20
Electronic Filing - Received, Clerk's Office, July 11, 2008
avoid duplicative efforts by the Board; and whether a stay will assist the Board in making the
appropriate determination.
Midwest Generation
EME, LLC
v.
IEPA,
PCB 04-216 (November
15,2007);
In the Matter of Petition ofCabot Corporationfor an Acijusted Standardfrom
35
Ill.
Adm. Code Part
738,
Subpart B,
AS 07-06 (August 9, 2007). While the parties attempt to
distinguish the case law cited by the District, the parties
do not dispute the principle that a stay
would be appropriate to avoid wasting time, expenses and resources. Thus, because a stay here
would serve the purpose
of avoiding needless waste, the Board should grant the District's
Motion.
Respondents' claims that a stay in this Rulemaking would waste time and money
(People's Resp., at
1) are unfounded; in fact, a stay would actually save expenses and resources.
Contrary
to Respondents' assertions (People's Resp., at p. 4; SETF's Resp., at pp. 6-7), staying
the Rulemaking does not require that IEP
A, the Board and stakeholders completely duplicate the
effort expended by everyone to this point. Instead, a stay simply stops the process at its current
point and holds the proceedings in abeyance while two things happen: (1) the District and other
parties complete and submit the reports outlined in the District's Motion and in the various
filings supporting that Motion; and (2) the stakeholder process resumes, so the parties can
discuss and try to resolve as many
of the outstanding issues as possible. The Rulemaking
proceeding would then recommence.
Respondents also take the unfounded stance that all hearings held thus far would
go to
waste
if the Board grants a stay; when, in fact, all of the hearings have been recorded, and
testimony will be preserved for consideration when appropriate. Nevertheless, this information
may eventually go to waste
if the Rulemaking hearings continue without resolving the significant
holes in !EPA's UAA data, and then fails to withstand the Board's scrutiny. In that case, the
21
Electronic Filing - Received, Clerk's Office, July 11, 2008
District, IEPA, and many others will have expended great time and funds, only to have to restart
the development and Board review processes. Such restarts are likely to result in additional costs
and expenses; as opposed to staying the Rulemaking, which would
avoid
IEPA and the Board
from having to restart the process. Therefore, the Board can avoid all
of these potential time-
and money-wasting possibilities by allowing the District and other parties to submit reports and
data before the Rulemaking continues that could dramatically increase the Rulemaking's chances
for success.
Respondents' assertions also seem to imply that without a final ruling on the proposed
water quality standards, citizens will be at risk
of environmental harm.
See
SETF's Resp., at pp.
11-12; People's Resp., at pp. 5-6. However, Respondents ignore the fact that the status quo
remains the same
if this Rulemaking is stayed and current environmental protections for the
water bodies will not be somehow abandoned
if the Board stays this Rulemaking. Dischargers
would continue to be subject to the same water quality requirements that currently apply and that
have been applied by for more than twenty years. Permitting also will continue on these water
bodies
as it did prior to and during the instant Rulemaking, thus protecting aquatic life and
citizens from discharges that are not in compliance with water quality and technology-based
standards. Thus, there is no increased environmental harm associated with the District's Motion
to Stay.
Moreover, the discussions about the proposed water quality standards had been ongoing
for years prior to IEPA initiating this Rulemaking,
so it is disingenuous for Respondents to now
push for an urgent resolution. The state
of the environment in the CAWS will be no different
during a stay
of this Rulemaking than it has been over those years -- a time span where
Respondents never acted on the asserted urgency that is now being claimed.
22
Electronic Filing - Received, Clerk's Office, July 11, 2008
III.
The District'sMotion is not being used as a tactical ploy to delay the Rulemaking.
In response to the District's Motion, Respondents have accused the District of litigious
gamesmanship aimed at delaying the issuance
of final water quality standards. These assertions
are unfounded and spurious. For instance, Respondents assert that the District should have
conducted the studies at issue in the Motion to Stay sooner.
See
People's Resp., at p. 6. The
most troubling aspect of this assertion is that Respondents completely ignore the fact that a
number
of these studies are being conducted by the District at IEPA's request, or as necessary
follow-up to studies conducted at IEPA's request. For example, as IEPA requested in a letter to
the District:
To adequately evaluate the options for reducing risk and protecting the
existing and designated uses identified through the UAA, I am
requesting that MWRD provided IEPA with sound engineering
estimates to construct disinfection facilities at the North Side Plant.
...
I am requesting that MWRD also provide IEPA with sound
engineering estimates for implementing disinfection
at the Calumet
and Stickney WRPs.
See
Exhibit 2, Correspondence from IEPA to the District, dated March 12, 2004, pp. 3-4;
see
also
Exhibit 3, Correspondence from the District to IEPA, dated May 21, 2004; Exhibit 4,
Correspondence from the District to IEPA, dated October 18, 2007 (The District's progress
report shows the status
of the District's studies that were requested by IEPA, including
information showing that studies will not be finalized until future dates.); Exhibit
5, Project
Meeting Notes January 30, 2003; Exhibit
6, Memorandum: Minutes for the April 27, 2004
Stakeholder Advisory Meeting (April 30, 2004) at
p. 17; Exhibit 7, Memorandum: Minutes for
the January 27, 2004 Stakeholder Advisory Meeting (February 18, 2004) at
p. 7; Exhibit 8,
Memorandum: Meeting Minutes for the July Stakeholder Advisory Committee (July 28, 2003)
at
p. 7. All such studies requested by IEPA were initiated in good faith and with the
understanding that IEPA needed certain
of these studies to fully develop its UAA. For reasons
23
Electronic Filing - Received, Clerk's Office, July 11, 2008
unknown, IEPA proceeded to propose the changes without waiting for the District to complete
the requested studies. Thus, the District can hardly be blamed for the timing associated with
these particular studies.
Furthermore, the District started many
of the remaining studies at issue in the Motion to
Stay as soon as it became evident that IEPA was going to propose the new standards without
much
of the information needed to justify them. IEPA initiated discussions relating to the
proposed water quality standards in this case in 2002 with the full involvement
of the District
and other stakeholders. Throughout the course
of the discussions, the District and other
interested parties were working with IEPA to develop the necessary justification for the water
quality standards. Hence, the studies were not necessary at that point, because the District
believed IEPA would continue to conduct discussions, gather data, and develop sufficient
technical and legal justifications for the standards. However, later in the Rulemaking it became
evident that IEPA had not yet conducted many
of the studies that would provide the necessary
data to support the proposed water quality standards. It was at this point that many
of the studies
were initiated by the District, which is fully appropriate timing.
Moreover, Respondents appear to incorrectly presume that the District was obligated to
have conducted the studies in the first place, and that failure to expeditiously do so is grounds for
denying the Motion to Stay.
See
Center's Resp., at pp. 4-5. Respondents severely confuse the
District's responsibilities with that
of IEPA in conducting this Rulemaking. IEPA is the one that
is attempting to change the designated uses for the water bodies, not the District. According to
the regulations, IEPA has the responsibility to justify
VAAs
with information supporting its
decision. 40 C.F.R. § 131.10(g), (j). Thus, despite the District's desire to supplement the
Rulemaking with studies to fill in important analytical gaps, it has no
obligation
to conduct such
24
Electronic Filing - Received, Clerk's Office, July 11, 2008
studies under the UAA regulations. Hence, the District can hardly be accused of lethargy or
foot-dragging on these studies that it undertook voluntarily.
In addition, the Respondents unjustifiably accuse the District of less-than-honorable
intentions
in the timing of its Motion to Stay.
See
SETF's Resp., at pp. 9-11. This accusation
also
is unfounded. The District could not have known of the full extent of IEPA's analytical
gaps until,
at the earliest, the proposed water quality standards were submitted to the Board on
October 26, 2007. That is, the District could not have known for certain that IEPA was relying
on insufficient data and improper analyses until the proposed rule was actually issued.
Moreover, it was only after IEPA issued the proposed water quality standards, that it became
apparent that IEPA was departing from what its consultants had submitted during the discussions
with the parties prior to the issuance
of the proposed standards. And, even though the District
was able
to partially identify that there were significant analytical problems with the proposed
water quality standards after November
1, 2007, the District believed that IEPA's testimony
would clarify the analytical gaps that appeared in the documents. This was not the case. Instead,
as thoroughly discussed above and in the District's Motion, IEPA's testimony over the ten days
of hearings in 2008 made it clear that IEPA had not conducted an analysis for the proposed water
quality standards that could be scientifically or legally justified.
It
was at that point that the
District filed its Motion to Stay. According to this timeline, the District could not have moved
for a stay any earlier than when it fully realized that the proposed water quality standards were
not supported
(i.e.,
the middle of 2008).2 Accordingly, the timing of the reports are not "of the
District'sown making" as suggested by Respondents. People'sResp., at
p. 3.
2
The People state that it "is therefore surprising that the District has chosen to file a motion to stay rather than file
expert testimony." People's Resp., at p.
3. The People have mistakenly concluded that the District is pursuing a
stay instead
of filing expert testimony. If the Motion to Stay is denied, or not acted upon soon, the District fully
25
Electronic Filing - Received, Clerk's Office, July 11, 2008
Finally, the District is not "isolated" in its claims as Respondents suggest. Midwest
Generation, Stepan and CICI flatly concur with the District's Motion to Stay as necessary to fill
in major analytical gaps in IEPA's analysis. In fact, Midwest Generation and Stepan point out
additional significant examples
of IEPA's analytical shortcomings, including IEPA ignoring
significant valid proposals for addressing thermal issues on the water bodies.
See
Midwest
Generation's Memorandum at pp. 9-12; Stepan's Concurrence at pp. 1-2. Hence, the District and
other parties have legitimate claims
to stay this Rulemaking stemming from demonstrated
inadequacies
in IEPA's proposed water quality standards. Respondents are wrong to assert that
the District
is single-handedly, or in concert with other stakeholders, scheming to scuttle the
Rulemaking.
intends to file expert testimony, and will be producing over 20 witnesses to testify as to various issues. It is our
hope, however, as explained in the Motion and this Reply, that this major effort for the District and all other
stakeholders can be avoided, or at least reduced, by resuming the stakeholder process, reducing the number
of
witnesses that are required and incorporating the results of the myriad ongoing studies into the rulemaking process
as soon as they are available.
26
Electronic Filing - Received, Clerk's Office, July 11, 2008
CONCLUSION
For the foregoing reasons, the District requests that the Board grant the relief requested in
the District's Motion to Stay, and for all relief the Board deems fair and just.
Dated: July
11, 2008
Respectfully submitted,
METROPOLITAN WATER
RECLAMATION DISTRICT OF
GREATER CJIICAGO
BY:~~~~~-
/ 1'r:edriC:Andes
Erika K. Powers
David
T. Ballard
Barnes
&
Thornburg LLP
1 North Wacker Dr.
Suite 4400
Chicago, Illinois 60606
(312) 357-1313
Attorneys for
Metropolitan Water Reclamation
District
of Greater Chicago
CHDSllI DTB
4747'J2vl
27
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT 1
Electronic Filing - Received, Clerk's Office, July 11, 2008
)
)
)
)
)
)
)
)
)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
"-0
CL.~Fi/(/fJ"e
I)
ocr
~~/CE
StAr.
2
62001
~
PO/lutJo~
OF:
II..Ll
R08-
ContrO/~O/S
(Rul
. g - Water)
oaret
IN THE MATIER OF:
WATER QUALITY STANDARDS
AND
EFFLUENT LIMITATIONS FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND TIIE LOWER DES PLAINES RIVER:
PROPOSED AMENDMENTS TO 35 TIL
Adm. Code Parts 301, 302,303 and 304
STATEMENT OF REASONS
The nlinois Environmental Protection Agency ("nlinois EPA" or ,cAgency") hereby
submits its Statement
ofReasons for the above captioned rulemaking
to
the llJinois Pollution
Control Board ("Board") pursuant
to
Section 27 ofthe Environmental Protection Act ("Act'1
[415 ILCS 5/27] and 35
m.
Adm. Code 102.200 and 102.202.
I.
STATUTORY BASIS AND LEGAL FRAMEWORK
A.
Environmental Protection Ad
Section S(c) ofthe Act gives the Board "authority to act for the State
in
regard
to
the
adoption of standards for submission to the United States under any federal law respecting
environmental protection. Such standards shall be adopted
in
accordance with Title
vn
ofthe
Act and upon adoption shall be forwarded to the Environmental Protection Agency for
submission
to
the United States ... " 415 ILCS 5/5(c)(2006). The Agency is given the
responsibility under Section4(l) ofthe Act to transmit the standards adopted by the Board
to
the
United States Environmental Protection Agency ("U.S. EPA") for
approval where required by
federal law. 415
ILeS
5/4(1)(2006).
Electronic Filing - Received, Clerk's Office, July 11, 2008
most extensive stakeholder involvement efforts undertaken by the Agency. Planning meetings
with interested stakeholders were held first on March 8, 2000. A meeting in Joliet which
included a boat tour ofLower Des Plaines River, was held on May 17,2000. The first formal
UAA stakeholder group meeting with the UAA contractors took place on December 15,2000.
See Attachment E for a detailed timeline ofmeetings oftbe UAA stakeholder'sadvisory grouPs
and Attachment F for a list ofstakeholder'sadvisory group members.
The UAA for Lower Des Plaines River identified the water quality problems of
Lower Des Plaines Riv:er and suggested remedies particular to each problem.
It
is clear from the.
UAA
that
Lower Des Plaines River continuea to be a highly modified water body that does not
resemble its pre-urbanize4 state. The main goal ofthe UAA was to find an ecologically and
recreationally attainable state that would as closely as possible approach the aquatic life and
recreational goals ofthe Clean Water Act without causing an adverse widespread socio-
economic impact.
(See
Attachment A at 9-1). The UM found
that
the water quality ofthe river
bas
significantly improved since the 1970s when the Secondary Contact and Indigenous Aquatic
Life Uses were designated by the Board for this waterbody. While there
bas
been improvement
and potential exists for additional improvement; the UAA did not find the Lower Des Plaines
River
to be
capable offull attainment ofthe aquatic life and recreational goals ofthe Clean
Water Act for un-impacted waters
in
the foreseeable future. Id.
E.
Use Attainability Analysis for the Chicago Area Waterway System
The UAA for the CAWS began
in
Scptember 2002 by the convening ofa Stakeholders
Advisory Committee. This group comprised a cross-section ofthe community likely to be
impacted by any proposed Iule changes including environmental groups, local governments,
specific industries, industry trade associations and regulatory agencies. See Attachment E for a
22
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT 2
Electronic Filing - Received, Clerk's Office, July 11, 2008
\!J
<, .•...... '"
'
"
~·.A
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 'NORTH
GRAND AVENUE
EAST, P.O. Box 19276, SPRINGFiElD, IlliNOIS 62794-9276, 217-782-3397
JAMES
R.
THOMPSON CENTER,
100
WEST RANDOLPH,
SUITE
11-300,
CHICAGO, IL
60601, 312-814-6026
ROD
R.
BLAGOJEVICH, GOVERNOR
RENEE CIPRIANO, DIRECTOR
217-558-2012
March 12, 2004
Mr. John C. Farnan, P.E.
General Superintendent
Metropolitan Water Reclamation District
ofGreater Chicago
100 East Erie Street
Chicago,IL 60611-3154
Subject: Evaluation
ofManagenient Alternatives for the Chicago Area Waterways
Dear
Mr. Farnan:
At the December 2003 and January 2004 Stakeholder Advisory Committee (SAC) meetings for
the
Chicago Area Waterways (CAWS) Use Attainability Analysis (UAA), we began the process
ofidentifying existing and potential recreational and aquatic life uses for the fourteen different
CAWS water segments identified below:
1) Upper North Shore Channel
2) Lower North Shore Channel
3) Upper North Branch Chicago River
4) Lower North Branch Chicago River
5) Chicago River
6) South Branch Chicago River
7) South Fork (Bubbly Creek)
8) Chicago Sanitary and Ship Canal
9) Calumet"Sag Channel
10) Little Calumet River West
11) Little Calumet River East
12) Grand Calumet River
13) Calumet River
14) Lake Calumet
The following new recreation and aquatic life designated uses are under consideration
for
CAWS:
1) General Warm-water Aquatic Wildlife
2) Modified Wann-water Aquatic Wildlife
3) Limited Warm-water Aquatic Wildlife
4) Whole-body Contact Recreation
ROCKFORD - 4302 North Main Street, Rockford, Il 611 03 - (815) 987-7760 •
D,s PlAiNES - 9511 W. Harrison St., Des Plaines, Il60016 •., (647) 294-4000
ELGiN '. 595 South State, Elgin, IL60123 - (847) 608-3131
•
PEORIA -
5415 N. Unlversity'St, Peoria, IL 61614 - (309) 693-5463
Bu~tAU
Of LAND' PWRIA - 7610
N. University St., Peoria, Il 61614 - (309) 693-5462
•
CHAMPAIGN -
2125 South First Street, Champaign, IL 61820 - (217) 278-5800
SPRINGfiELD -
4500 S. Sixth Street Rd., Springfield, Il 62706 - (217) 786-6892
•
COLl!NSVlLL£ -
2009 Mall Street, Collinsville, IL 62234 .. (618) 346-5120
MARION -
2309 W. Main
51:,
Suile 116, Marion, lL62959 - (618) 993-7200
'
PRINTEO ON ReCYCLED PAPER
Electronic Filing - Received, Clerk's Office, July 11, 2008
5) Limited Contact Recreation
6) Recreational Navigation
We also began proposing appropriate water quality standards for protecting identified uses, and;
where existing conditions do not support such uses, identifYing a suite ofmanagement
alternatives
to further improve water quality conditions. Management alternatives being
considered thus
far include: flow augmentation (where necessary), supplemental aeration, end-
of-pipe CSO treatment and disinfection.
The standards that will be needed to protect the proposed aquatic life uses are expected to be
very similar
to those currently in place for lllinois' General Use classification for most
parameters. For some impacted portions ofthe waterways, a Limited Warm-water Aquatic Life
Use or a Modified Warm-water Aquatic Life Use designation may reflect the highest attainable
use and less restrictive standards may be appropriate for such waters.
The recreational use bacterial standards options for CAWS are:
1. Whole-body Contact Recreation: 30-day geometric mean of 126 cfu
E.
coli,
and a daily
maximum of 576 cfu
E.
coli.
The standard shall apply only during a proposed
recreational period ofFebruary through November.
2. Limited Contact Recreation: 3Q-day geometric mean of 1030 cfu
E. coli.
The standard
shall apply only during a proposed recreational period ofFebruary through November.
3. Recreational Navigation: 30-day geometric mean of2740 cfu
E.
coli.
The standard shall
apply only during a proposed recreational period ofFebruary through November.
TIle IEPA UAA team analyzed and presented the recreational, water quality and biological data
for the first six CAWS segments. Based upon this information, the UM team is recommending
the following existing or proposed potential designated uses:
Proposed
Upper North
Lower North
Upper North
Lower North
South Branch
Designated
Shore
Shore
Branch
Branch
Chicago
Chicago
Use
Channel
Channel
Chicago
Chicago
River
River
River
River
Whole-Body
Contact
Recreation
Limited
Contact
X
X
X
X
X
X
Recreation
Recreational
XX
X
X
X
X
e-.Navl~lon
General
---
Warm-Water
_ Aquatic Life
Modified
Warm-Water
X
X
X
X
X
Aa
uaile Life
Limited
Warm-Water
X
Aquatic Life
Data from MWRD'streatment facilities shows that the District is doing an admirable job in
producing a treatment plant effluent that for the most part meets or exceeds the existing General
Electronic Filing - Received, Clerk's Office, July 11, 2008
Use water quality standards throughout the entire CAWS. There are periods, however, when
dissolved oxygen standards are not being met in the waterways, especially during and after wet-
weather CSO periods. Oxygen deficiencies also exist in waterway reaches subject to periods of
limited or no flow, such as the Upper North Shore Channel. During such overflow events and in
flow challenged reaches, selected management strategies will be required
to ensure that
standards are being met
and designated uses are protected.
Where it was identified that existing conditions
fall short of potential standards, SAC and the
IEPA UAA identified the following management alternatives that need to be evaluated for
improving water quality conditions:
Lower
Upper
Lower
South
Management
Upper North
North
North
North
Chicago
.Branch
Shore
Branch
Branch
Alternatives
Channel
Shore
Chicago
Chicago
River
Chicago
Channel
River
River
River
Flow
Augmentation
-_
.....•..,.
X
Aeration
X
X
X
X
Instream Habitat
Enhancement
--_.'''''"~''''"-
Sediment
Removal
esa Treatment
X
X
X
X
X
X
Other
Disinfection
-
X
X
X
X
X
X
With respect to dissolved oxygen, SAC concluded that the following specific alternatives
deserve further detailed evaluations:
1. diverting a portion ofMWRD'sNorth Side WRP effluent to a point near Sheridan
Road
to improve channel flow and dissolved oxygen conditions.
2. installing supplemental aeration stations.
3. perfonning end-of-pipe treatment of CSOs.
lEPA understands that the MWRD water quality model will soon be available for use in
analyzing various management options
and we are requesting that the model be used to identify
where supplemental aeration or flow augmentation will be needed to meet three different
potential dissolved oxygen criteria levels: 4
mgll, 5 mg/I and 6 mgll.
The SAC reviewed data on the existing recreation uses occurring on the waterways. Based upon
these
data, it is believed that there is some level ofhuman exposure to the water in aU ofthe
segments
of the watenvays and this recreational use is expected to continue and increase over
time.
It
is also believed from the available data for indicator bacteria that, at present, the risk of
illness from exposure to pathogens in the water may be unacceptably high. Since the initial six
CAWS segments are impacted by the effluent from the North Side WRP, disinfection may need
to occur to protect existing uses therein. To adequately evaluate the options for reducing risk
Electronic Filing - Received, Clerk's Office, July 11, 2008
and protecting the existing and attainable uses identified through the UAA, I am requesting that
MWRD provide IEPA with sound engineering estimates to construct disinfection facilities at the
North Side Plant. All feasible alternatives for achieving disinfection should
be considered to
meet the proposed bacterial standards. Since the UAA has also identified that similar
recreational uses exist further downstream and in the Calumet area, I am requesting that MWRD
also provide IEPA with sound engineering estimates for implementing disinfection
at the
Calumet and Stickney WRPs. The disinfection period for CAWS
may run from as early as
February to as late as November. Please include with your estimates, a discussion of the
environmental side effects associated with the alternatives considered, such as energy
consumption and chemical byproducts production, as well as an estimate
ofthe costs associated
with constructing and operating dehalogenation facilities for disinfection options that involve the
use of halogens. The estimates should be broken down on a WRP-by-WRP basis and include
detailed descriptions
of how the estimates were developed.
SAC and the !EPA
UAA team will soon complete their review of the chemical, physical, and
biological data associated with the water'andsediment in the remaining CAWS segments, At
the completion of the data review, management alternatives that could be implemented to
improve water quality conditions will
be identified, and where appropriate, stakeholders will be
requested to perform additional engineering estimates.
MWRD is to be commended for the outstanding contribution they have made in improving the
water quality in CAWS. IEPA looks forward to working with
MWRD, the City of Chicago and
the other stakeholders to achieve the goals and requirements
ofthe Clean Water Act. I would
like to arrange a meeting with you and your staffto discuss MWRD'sprogress on the
disinfection engineering analysis requested in January 2003, the additional evaluations requested
herein and a timetable for the completion
ofthe evaluations.
Thank you for your significant contributions to the UAA
process, and we continue looking
forward to working with you and your staff.
Sincerely,
~~~-~/~--~
..
_
...
Toby--Frevert, Manager
Division
afWater Pollution Control
Bureau
ofWater
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT 3
Electronic Filing - Received, Clerk's Office, July 11, 2008
.......................... ,
....
Metropolitan Water Reclamation District of Greater Chicago
100 EAST ERIE STREET
CHICAGO, ILLINOIS 60611.3154
312-751' 5600
BOARD OF COMMISSIONERS
Ter$l1(:e
.1.
O'anen
President
Kathleen ThereSE! Meany
VIce
P!!liIidenl
Gloria AUtio Majewski
Chairman,Of Finance
FrankAYila
James
C.
Harrill
Barbara
J.
McGowan
Cynthia
M, Santos
Patrl¢la YOung
Harry "Bull'YoUrell
John C. Farnan, P.E.
General Superintendent
312 .751-7900
FAX
312 .751-5881
May 21, 2004
Mr. Toby Frevert, Manager
Division of Water Pollution Control
Bureau of Water
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P. O. Box 19276
Springfieo/794-9276
Dear~etM
Subject:
~ValUatiOn
ofManagement Alternatives for the Chicago Area Waterways
We are
in
receipt ofyour letter dated March 12, 2004, subject as above, and we
wish
to inform you how
we intend to respond. As discussed at our meeting on April 26, your letter requests a significant amount
of work on our part and thiswiH require expenditures for engineering services and adequate time to give
the matters serious study. We believe that you will want answers that are thorough and competent.
The work requested
hilS
been divided into two topical areas, disinfection and water quality management.
An
outline for each is attached, describing the tasks to be performed and the schedule we intend to follow.
Anticipated completion dates for future tasks are sbo-w'll in italics.
We will begin to pursue these studies and report o.ur progress to you at quarterly intervals. The rU'St
report will be for the period ending June 30, 2004 and be delivered to you by July 15, 2004. SUbsequent
reports will be delivered by October 15,2004 and by January 15, April 15, July 15, and October 15, 2005.
We anticipate completion of all work.by December 31, 2005 and the final progress report will be
delivered by January 15,2006.
If you have any questions, please contact Mr. Richard Lanyon, Director of Research and Development at
312-751-5190.
Very truly yours,
RLdl
Attachments
John C. Farnan
General Superintendent
Electronic Filing - Received, Clerk's Office, July 11, 2008
Metropolitan Water Reclamation District of Greater Chicago
CHICAGO AREA WATERWAYS USE ATTAINABILITY ANALYSIS STUDY
DISINFECTION STRATEGY
In response to the ffiPA letter dated March 12, 2004 regarding the Chicago Area Waterways
UAA Study, the District will pursue the matter
of disinfection following the five tasks identified below.
lbe key issue in this strategy is the assessment of the risk to human health relative to the designated use.
If the selected designated use is non-contact recreation such as canoeing, fishing, etc., then the District
will
investigate whether a significant lessening of health risk is achieved by disinfecting the effluent and
whether the cost of disinfection is justified for the benefit derived.
Risk Assessment
of Human Health Impacts ofDisinfection vs. No Disinfection
R&D
will retain the services of a consultant to perform a comparative risk assessment of the human
health impacts
of continuing with the current practice of no disinfection vs. initiating disinfection at the
three large WRPs. The risk assessment will attempt to quantify the expected reduction,
if any, in the
incidence
of disease to the affected population that instituting disinfection would achieve. The magnitude
of the reduction in health impacts, if any, will then be compared to the anticipated costs of instituting
disinfection.
Preparation
of RFP complete:
June
4,
2004
RFP advertised:
June 30, 2004
Agreement for services approved by Board:
September
9,
2004
Agreement for services executed:
September 30, 2004
Completion of work:
July 30,2005
Establish Whether or not Effluent Disinfection is Effective
R&D will perfonn additional monitoring for fecal colifonn in the waterways in an effort
to determine
whether disinfection
of WRP effluents alone, will significantly reduce fecal coliform levels in the
waterways, and provide a meaningful increase in human health protection. R&D
will also include fecal
colifann modeling in the next phase
of water quality model development by Marquette University to
better analyze the impact
of various sources of bacterial material on ambient levels of fecal colifonn in
the Chicago Area Waterways.
Additional monitoring begun April 2004
Data analysis duringfirst
quarter 2005
Waterway model analysis
second quarter 2005
Additional monitoring may continue in
2005
Evaluate the USEPA Bacterial Guidance
R&D
will retain the services of one or more outside experts to examine the science underlying the
USEPA November 2003 draft guidance,
Implementation Guidance for Ambient Water Quality Criteria
for
Bacteria,
and the 1986
Ambient Water Quality Criteriafor Bacteria
to determine whether the
"TIle guidance contains proper sci.entific foundation for establishing scientifically defensible and
justifiable limits
fur primary, secondary and limited contact recreation."
Electronic Filing - Received, Clerk's Office, July 11, 2008
Preparation of RFP complete:
June
4,
2004
RFP advertised:
June 30,2004
Agreement for services approved by Board:
September
9,
2004
Agreement for services executed:
September 30, 2004
Completion ofwork:
March 30.2005
Illvestigate Alternative Technologies for Disinfection and the Impacts of Disinfection Chemicals
Engineering will retain the services of an experienced consultant firm to form a committee of experts
from academia and engineering to investigate aU possible disinfection technologies and recommend a
technology appropriate for the District'sCalumet, North Side and Stickney WRPs. The investigation will
review different disinfection technologies and their range of pathogen destruction ability.
The
investigation will also include an examination of the environmental and human health impacts of: the
energy required to operate the facility; the energy required for the processing and production of process
chemicals; and the conversion and degradation ofprocess chemicals.
Request for Interviews sent to six finns: May 7,2004
Request for Proposals sent:
June 30, 2004
Proposals received:
July 30. 2004
Agreement for services approved by Board:
October 21,2004
Agreement for services executed:
November
12,
2004
Completion of work:
June
11,
2005
Estimate the Cost ofDisinfection
Engineering will retain the services of one or more engineering consultants to prepare a conceptual level
design of the disinfection technology selected above, specific to the Calumet, North Side and Stickney
WRPs, and prepare conceptual level cost estimates for the design, construction, operation and
maintenance of the disinfection facilities.
Identification of selected technology:
June
11,
2005
Completion ofwork:
December 10,2005
2
Electronic Filing - Received, Clerk's Office, July 11, 2008
Metropolitan Water Reclamation District of Greater Chicago
CHICAGO AREA WATERWAYS USE ATTAINABILITY ANALYSIS STUDY
WATER QUALITY MANAGEMENT ALTERNATIVES STRATEGY
In response to the IEPA letter dated March 12, 2004, regarding the Chicago Area Waterways UAA Study,
the District will pursue the matter
ofwater quality management alternatives in the following manner.
Water
Quality Modeling
R&D will obtain a proposal from and increase the contract with Marquette University for the additional
work necessary to model the water quality conditions to address the dissolved oxygen (DO) deficiencies
identified in the letter and determine load reductions needed to meet the three target
DO levels specified
by the lEPA.
Proposal requested: April 2, 2004.
Proposal dated April 19, 2004, received May
7, 2004.
Submitted to Board
of Commissioner for approval:
June 3,2004
Notice to proceed:
July 31,2004
Simulation development complete:
November 2004
Evaluation of alternatives complete:
May 2005
As mentioned in the second to last paragraph of the IEPA letter, these management alternatives are
limited to part of the waterway system and these alternatives, and perhaps others, may be considered for
additional reaches as the UAA Study progresses. At a later time when further requests are received from
lEPA, the
District will pursue the matter in the following manner.
Investigate Management Alternatives to Address Water Quality Conditions
Engineering will retain the services
ofa consulting engineering firm to perform the following tasks:
•
Using the modeling results, prepare a conceptual level design for flow augmentation
in the Upper
North Shore Channel using North Side plant effluent
•
Using the modeling results, prepare a conceptual design for supplemental aeration to meet the target
level specified
by the IEPA in each ofthe designated waterways.
•
Investigate technologies for end-of-pipe CSO treatment in the designated waterways.
For each
ofthe above, the consultant will prepare conceptual cost estimates for these facilities, including
design costs, capital costs, and annual operation and maintenance costs.
In
addition, for each of the
above, the consultant will prepare an examination
of the environmental and human health impacts of: the
energy required to operate
the facility; the energy required for the processing and production ofprocess
chemicals; and the conversion and degradation
ofprocess chemicals.
Request for Interviews sent to six firms: May 7, 2004
Request for Proposals sent:
June 30, 2004
Proposals received:
July 30,2004
Agreement for services approved by Board:
October
21,
2004
Agreement for services executed:
November 12,2004
Receive modeling results:
May 2005
Completion of work:
November 2005
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT 4
Electronic Filing - Received, Clerk's Office, July 11, 2008
Metropolitan Water Reclamation District
of
Greater Chicago
100 EAST ERIE STREET
CHICAGO,ILLINOIS 60611-3154
312'751'5600
80ARD OF COMMISSIONERS
Tarrance J. O'Brien
PrNJdenl
KathlHn The,..a
Meany
va
P,.IIdenl
Gloria A1ilto Ma)ewskl
ClWrman
of
F",a".,.
Frank Avila
Patricia Holton
Ilartlara
J.
McGowan
Cynthia
M.
Santos
DebraShoI'8
Patricia Young
Richard
Lanyon
General Superintendent
312'751'7900
FAX 312'751'5681
Mr. Toby Frevert, Manager
Division of Water Pollution Control
Bureau
of Water
lllinois Environmental Protection Agency
1021 North Grand
Avenue East
P.O. Box 19276
Springfield,
II...
62794-9276
Dear
Mr. Frevert:
October 18,
7fYJ7
Subject:
Evaluation of Management Alternatives for the Chicago Area Waterways
Third Quarter 2007 Progress Report
As indicated in
our letter dated May 21, 2004, we are sending you quarterly progress reports for the sub-
ject evaluation.
This is the report for the third quarter 2007. Attached are copies of the Disinfection
Strategy and
the Water Quality Management Alternatives Strategy. On each strategy, we have updated in
bold the schedule for completion and included a brief statement
of progress in italics following each task.
If
you have any questions, please contact Louis Kollias, Director of Research and Development, at (312)
751-5190.
Very truly yours,
~ ~.
'V\A.JlI
Richard Lanyon
General Superinteo
eot
RL:LK:js
Attachments
cc: Ms. Linda Holst, USEPA, Region 5
Mr.
R. Sulski, IEPA
Mr. J. Spatz, Chicago DWM
Ms. C. Hudzik, Mayor's Office
Dr. C.
Haas
Dr. C. Lue-Hing
Dr. S. Melching
Mr. A. Bouchard
Mr.
J. Darin
Mr. C. Davis
Mr.
A. Ettinger
Mr. R. French
Ms. M. Frisbie
Ms. C. Petropoulou
Mr. I. Polls
Electronic Filing - Received, Clerk's Office, July 11, 2008
Metropolitan Water Reclamation District of Greater Chicago
CHICAGO AREA WATERWAYS USE ATTAINABILITY ANALYSIS STUDY
DISINFECTION STRATEGY
Status as of September 30, 2007
In response to the IEPA letters dated March 12 and August 27,2004, regarding the Chicago Area Water-
ways UAA Study, the District will pursue the matter
of disinfection following the five tasks identified
below. The key issue in this strategy is the assessment
of the risk to human health relative to the desig-
nated use.
The IEPA has proposed limited contact recreation in the waterways downstream of the Calu-
met and North Side WRPs and recreational navigation downstream
of the Stickney WRP. The District
will determine if a significant lessening
of health risk is achieved by disinfecting the effluent and will
estimate the costs
of effluent disinfection at the three WRPs.
Risk Assessment
of Human Health Impacts of Disinfection vs. No Disinfection
R&D will retain the services
of a consultant to perform a comparative risk assessment of the human
health impacts
of continuing with the current practice of no disinfection vs. initiating disinfection at the
three large WRPs. The risk assessment will attempt to quantify the expected reduction, if any, in the
in-
cidence of disease to the affected population that instituting disinfection would achieve. The magnitude of
the reduction in health impacts, if any, will then be compared to the anticipated costs of instituting disin-
fection.
Preparation
ofRFP complete: October 15,2004
RFP advertised: January 5, 2005
Agreement for services approved by Board: June 2005
Agreement for services executed: July 2005
Completion
of work: November 2007
The Risk Assessment contractor has been selected
and
work began in June 2005. All dry weather
sampling for pathogens was completed by September
9,
2005. Wet weather sampling was not
conducted because ofthe extended dry weather in 2005 and this sampling was completed by No-
vember
1,
2006. An interim report on the dry weather risk assessment was sent to you in No-
vember 2006,
and is on the District website. The wet weather risk assessment will be available
in November 2007. In addition, the District initiated an epidemiological study with the Univer-
sity
ofIllinois Chicago School ofPublic Health beginning in August 2007.
Establish Whether or not Effluent Disinfection is Effective
R&D will perform additional monitoring for fecal coliform in the waterways
in an effort to determine
whether disinfection
of WRP effluents alone, will significantly reduce fecal coliform levels in the water-
ways, and provide a meaningful increase in human health protection. R&D will also include fecal coli-
form modeling in the next phase
of water quality model development by Marquette University to better
analyze the impact
of various sources of bacterial material on ambient levels of fecal coliform in the Chi-
cago Area Waterways.
Additional monitoring begun April 2004
Data analysis during second quarter 2005
Completion
of waterway model analysis second quarter 2005
Additional monitoring was completed
in 2006
1
Electronic Filing - Received, Clerk's Office, July 11, 2008
In the fourth quarter 2006, a total of
84
samples were collected for the additional monitoring. 30 samples
were collected for dry weather, and
54
samples were collected as a result ofwet weather. An analysis of
the data collected in 2004 has been completed and a report was sent on September
19.
2005. The devel-
opment offecal coliform modeling has been completed, and a report was sent to you on August
22,
2005.
The results ofsampling in 2005 and 2006 will be reported to you in the third quarter 2007.
Evaluate the USEPA Bacterial Guidance
R&D will retain the services
of one or more outside experts to examine the science underlying the
USEPA November 2003 draft guidance.
Implementation Guidance for Ambient Water Quality Criteria
for Bacteria,
and the 1986
Ambient Water Quality Criteriafor Bacteria
to determine whether
"The guidance contains proper scientific foundation for establishing scientifically defensible and jus-
tifiable limits for primary. secondary and limited contact recreation."
Agreement for services approved by Board: February 2005
Agreement for services executed: April 2005
Completion
of work: December 2005
The report ofthe panel ofexperts has been completed and was submitted to you on August
24,
2006, and
is also on the District's website. A letter was sent on November
21,
2006. to Ephraim
S.
King, Director,
Office of Science and Technology for the USEPA, expressing our concerns about the application of the
USEPA's national recommended water quality criteria to the Chicago Area Waterways. In a letter dated
December
26,
2006 Mr. King applauded our efforts and stated that our concerns would be addressed in
an upcoming workshop. However, recently the USEPA has decided not to include secondary and limited
contact in their rulemaking.
Investigate Alternative Technologies for Disinfection and the Impacts of Disinfection Chemicals
Engineering will retain the services
of an experienced consultant firm to form a committee of experts
from academia and engineering to investigate all possible disinfection technologies and recommend a
technology appropriate for the District'sCalumet. North Side and Stickney WRPs.
The investigation will
review different disinfection technologies and their range
of pathogen destruction ability. The investiga-
tion will also include an examination
of the environmental and human health impacts of: the energy re-
quired to operate the facility; the energy required for the processing and production
of process chemicals;
and the conversion and degradation
of process chemicals.
Request for Interviews sent to six firms: May 7, 2004
Request for Proposals sent: July
15,2004
Proposals received: August 13,2004
Agreement for services approved by Board: October 21, 2004
Agreement for services executed: November 22, 2004
Completion
of work: June 2005
The report and recommendations resulting from the work of the panel has been completed and was pre-
sented to the Stakeholders Advisory Committee (SAC) on June
22,
2005, and is also on the District'sweb-
site
Estimate the Cost of Disinfection
Engineering will retain the services
of one or more engineering consultants to prepare a conceptual level
design
of the disinfection technology selected above, specific to the Calumet, North Side and Stickney
WRPs, and prepare conceptual level cost estimates for the design, construction, operation and mainte-
nance
of the disinfection facilities.
2
Electronic Filing - Received, Clerk's Office, July 11, 2008
Identification of selected technology: June 2005
Completion of work: August 2005
Work was completed and a report issued to the [EPA on August
31,
2005. The cost estimates were pre-
sented
to the SAC on October 18,2005.
Evaluate Disinfection Practices at other WRPs
In
addition to the aforementioned tasks, R&D has conducted a survey of WRPs in the Midwest that do not
disinfect. The results revealed that the Metropolitan St. Louis Sewer District has two WRPs, LeMay (100
MGD) and Bissell Point (150 MGD) that discharge into the Mississippi River and do not disinfect. The
city of Memphis, Tennessee. also has two WRPs, Stiles (135 MGD) and Maxson (80 MGD), that dis-
charge to the Mississippi River and do not disinfect.
3
Electronic Filing - Received, Clerk's Office, July 11, 2008
Metropolitan Water Reclamation District of Greater Chicago
CHICAGO AREA WATERWAYS USE AITAINABILITY ANALYSIS STUDY
WATER QUALITY MANAGEMENT ALTERNATIVES STRATEGY
S~tusasofSepternber30,2007
In response to the IEPA letters dated March 12 and August 27, 2004, regarding the Chicago Area Water-
ways UAA Study, the District will pursue the matter of water quality management alternatives for all ap-
propriate reaches of the Chicago Waterway System in the following manner.
Water Quality Modeling
R&D will obtain a proposal from and increase the contract with Marquette University for the additional
work necessary to model the water quality conditions to address the dissolved oxygen (DO) deficiencies
identified in the letter and determine load reductions needed to meet the three target DO levels specified
by the IEPA.
Proposal requested: April 2, 2004
Proposal dated April 19, 2004, received May 7, 2004
Submitted to Board of Commissioner for approval: June 3, 2004
Notice to proceed: July 29, 2004
Simulation development complete: April 2005
Evaluation of alternatives complete: December 2006
Four water quality modeling reports have been published and distributed. An additional report compar-
ing alternatives is available on the District'swebsite
as Technical Report
#18
under the UAA Study.
Investigate Management Alternatives to Address Water Quality Conditions
Engineering will retain the services of a consulting engineering firm to perform the following tasks:
•
Using the modeling results, prepare a conceptual level design for flow augmentation in the Upper
North Shore Channel using North Side plant effluent.
•
Using the modeling results, prepare a conceptual design for supplemental aeration to meet the target
level specified by the IEPA in each of the designated waterways.
•
Investigate technologies for end-of-pipe CSQ treatment in the designated waterways.
•
The District will include preliminary engineering and a cost estimate for infrastructure to induce arti-
ficial flow in Bubbly Creek for water quality improvement.
For each of the above, the consultant will prepare conceptual cost estimates for these facilities, including
design costs, capital costs, and annual operation and maintenance costs.
In
addition, for each of the
above, the consultant will prepare an examination of the environmental and human health impacts of: the
energy required to operate the facility; the energy required for the processing and production of process
chemicals; and the conversion and degradation of process chemicals.
Request for Interviews sent to six firms: May 7, 2004
Request for Proposals sent: July 15,2004
Proposals received: August 13,2004
Agreement for services approved by Board: October 21,2004
Agreement for services executed: November 22, 2004
Receive modeling results: May 2005
Completion of work: December 2006
1
Electronic Filing - Received, Clerk's Office, July 11, 2008
The work is in progress. The results oj the analysis Jor end-oj-pipe csa treatment was reviewed with
[EPA in January 2006. Due to
the modest water quality benefits and high cost, no further work is con-
templated.
In both
the above work tasks, collaboration between the District, the engineering consulting firm and the
water quality modeling contractor
has
revealed the complexity of completing work on the several man-
agement alternatives in a timely manner.
The
engineering consulting firm will be preparing separate re-
ports on each management alternative
for presentation to the [EPA. After discussion ofthese work prod-
ucts,
there may be further work on integrating the various alternatives to find more cost-effective solu-
tions to achieve the proposed use designations. Discussion
with, review by and receipt ojcomments from
the Stakeholder Advisory Committee will provide critical input to the process oj reaching an integrated
solution
and may further delay this schedule. Presentation oj the results ojthis work will be presented in
a Stakeholder Advisory Committee meeting
scheduled in 2008.
To verify the water quality modeling results from the Marquette University model, the District has begun
another modeling study using the three-dimensional Environmental Fluid Dynamis Code developed by
the U.S. Environmental Protection Agency. This study is described on the District's website and will be
used to better
understand the complex hydraulics of the waterway system and the ability to achieve com-
pliance with dissolved
oxygen standards.
2
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT 5
Electronic Filing - Received, Clerk's Office, July 11, 2008
PROJECT MEETING NOTES
PROJECT: Chicago Area Waterway System UAA
MEETING DATE: 30 January 2003
MEETING PLACE: Thompson Building, Room 2-025
MEETING TIME: 10:00 - 11:10 am
SUBJECT: Chicago Area Waterways: Waterborne pathogens, wastewater treatment
plant upgrades for disinfection and public recreational exposure
Toby Frevert and Rob Sulski from IEPA started off the meeting with a quick introduction
about the meeting's goals and then asked Ron French from COM to give an introduction
of the firm and who was present.
The meeting goals are as follows:
1) Public notification of health and safety risks
~ssoclated
with waterway
usage.
Lack of disinfection at treatment facilities and CSO constitutes
:;t
sources of infectious disease organisms that individual citizens may not be
aware of or fully appreciate. I would like to discuss the various roles of
government agencies
in providing appropriate and credible public advisories
on the issues and risks associated with recreational endeavors in the ."
Chicago waterway system. The district is obligated to provide public notice of
CSO overflow events under its recently reissued NPOES permits, but I"
believe there is a broader need to educate the public on health (and safety)
risks inherent to the waterway and its various competing functions. This is
truly a public health issue and I am looking forward to the expertise and
assistance of the public health agencies in this area.
2) Treatment Plant Disinfection
Although the determination of
heed for disinfection at MWRD's three main
treatment facilities will certainly be a major aspect of the UM, engineering
planning and cost estimates for disinfection will be necessary to complete
that assessment. In light of the Increased public activity in and along the
waterway and therefore increased health exposure to the public, I believe it Is
appropriate to initiate the engineering work at an early date.
3) Documentation of current recreational activity within the waterway.
We will be seeking input from MWRD, the City alid other attendees on data
sources and approaches to assessing both current and projected future
recreational actiVity along various sectors of the waterway as well as
competing or Incompatible uses. such as navigation and flood control.
Ron French introduced himself and the COM Team that was present. Ron French will
be the Project Manager for COM, and he will be working closely with his staff in the
Chicago office. Colleen Hughes will be
responslbl~
for data management. Other
members of the project team include Hydroqual, who will be responsible for the
modeling effort and Hili and Knowlton, the Public Relations firm for the project. Chris
Varones and Brian Kiefer from Hill and Knowlton were present" at this meeting. The
Electronic Filing - Received, Clerk's Office, July 11, 2008
prepared using the PR folks to address the immediate concerns about health threats
using the waterways. There was a consensus among those attending that this should be
a priority. A handout could be put out by the same Inter-agency group (Illinois Depts. of
Public Health, Natural Resources and Agriculture and IEPA) that created the fish
consumption advisory and it could be distributed to local marinas, boat launch operators,
outdoor sporting goods stores and ski and boat shops.
Treatment Plant DIsinfection
Toby asked the MWRD to start working parallel to the UAA, on the
engineering/economic considerations of putting In chlorination/dechlorination facilities in
at the three
big
treatment plants to look at the technologies that are available for their
facilities and the cost and schedule to implement these technologies. The MWRD said
they could only perform preliminary engineering and cost estimates on this matter.
USEPA agreed that actual design and construction was not being looked for at this time,
that preliminary planning and engineering was appropriate concurrent with the UAA
development.
Documentation
of
Current Recreational Activity within the Waterway
There is a need to know what type of data collection has already been done on the river,
particularly water quality and recreational use. Suggestions were made with regard to
obtaining data from the Coast Guard, ACOE, USGS, IEPA, IDNR the carrier association
and MWRD debris boat crews. Also it was brought to everyone's attention the need to
document conflicting and competing uses in the waterways. Were do we get barge
traffic' data, etc?
Friends of the Chicago River will be contacted for all of their documentation on water
quality and recreational usage
info.
Action Items
It was recommended that a slide show presentation be put together outlining the UAA
program. Ron French will work on this with HJlI and Knowlton.
.
IEPA will prepare a draft public advisory pamphlet and send it Illinois Public Health Dept
for their review and final preparation.
Ron French and the COM Team will meet with key regional representatives to discuss
recreational activities within the waterways. Various folks at the meeting identified
themselves as being contacts for this type of information. Ron French asked them to
leave behind their business card, so that he could follow up with the project.
Toby adjourned the meeting at 11:10.
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT
6
Electronic Filing - Received, Clerk's Office, July 11, 2008
Memorandum
To:
From:
Date:
Toby Frevert, I/Iinois EPA
Rob Sulski, Illinois EPA
Ron French, CDM
April 30, 2004
Subject: Minutes for the April
27,
2004 Stakeholder Advisory Committee
.Meeting
Attendees: .
RobSulski
Illinois EPA
Dick Lanvon
MWRDGC
rroby Frevert
Illinois EPA
Albert Ettinger
ELPC/Sierra Club
Scott Twait
illinois EPA
Nick
Mennin~a
Greeley
&
Hansen
Colleen
Hu~es
COM
Ed
Hammer
USEPA
"
Ron French
~OM
Susan O'Connell
MWRDGC'
USEPA
"
Stephanie Brock
COM
Linda Holst
ocr
~teve
Pescite11i
IDNR
i
Lisa Frede
Beth Wentzel
'PriliieRiver Network
!Howard EssiK
iIEPA
anet Pellegrini
USEPA
~eff
Covinskv
IRCA/HMC
FredAxlev
FOCR
GeorKe Braam
Kudma/IIPD
Nelson Chueng
Chica9,;o • Plannin9,;
SerRio Serafino
MWRDGC
rrodd Wildermuth FOCR
~eanor
Roemen
FOTP
ITulia
Wozniak
Midwest Gen.
[oe Deal
Otv
of Chicago
Brenda Carter
!ERG
Aaron Rosinski
SETF
Mardi Klevs
USEPA
Cathv Mudzik
Chica~o
Mavor'sOffice
On Tuesday, April 27, 2004 the illinois EPA and CDM held a Stakeholder Advisory
Committee (SAC) meeting to discuss the progress of the Chicago Area Waterway System Use
Attainability Analysis (CAWS UAA). The meeting covered the following items:
• Update on the QHEI habitat survey and IBI Analysis
• Proposed Use Classifications and Standards
Q:IM..linpISAC'4l41704 SAC MEETING N07T:S.• oc
Electronic Filing - Received, Clerk's Office, July 11, 2008
Chicago Area Waterway System UAA April 27, 2004 SAC Meeting
April
30, 2004
Page 17
Update from MWRD
MWRD received the letter from lllinois EPA on March 12, 2004 outlining the various
management options which need to be considered on the CAWS. The management options
were outlined for the reaches from the North Shore Channel down to the South Branch of the
Chicago River. illinois EPA is currently drafting a letter regarding the remaining reaches.
MWRD
will submit a response letter with a schedule of deJ.iverables to illinois EPA by the
end of May.
MWRD plans to perform. the following task related to the evaluation of disinfection at the
plants:
.
•
Conduct Risk Assessment (for
this
task they will need all of the use data collected on the
CAWS)
• Collect additional fecal coliform data
• 1I:lclude fecal coliform.
in
the water quality model (Marquette University)
• Evaluation of EPA bacteria guidance
• Investigate altemative technologies for disinfection':':'determine the residual effects of
chemical disinfection and the.energy costs
MWRD
will develop RFPs for the following tasks:
• Risk
assessment,
• EPA guidance evaluation
• Investigation of alternative technologies
MWRD
expects these deliverabies to be completed
in
mid~2005.
MWRD will perform the follOWing tasks related to evaluation of aeration and flow
augmentation alternatives:
• Construct additional model elements (Marquette University)
•
Investigate the impacts between alternative technologies for DO and chemical treatments
MWRD
expects these deliverables
to
be cO!Ilpleted
by
summer 2005.
Q:1M......1SAC'4l42'704SAC MEE'I1NONOTES.cIoo
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT 7
Electronic Filing - Received, Clerk's Office, July 11, 2008
Memorandum
To:
From:
Date:
Toby Frevert, Illinois
EPA
Rob Sulski, J1Jinois EPA
Ron French,
CDM
February
18,
2004
Subject: Minutes
for the January
27,
2004 Stakeholder Advisory Committee
.Meeting
Attendees:
Rob Sulskl
illinois EPA
Rebecca Rader
Hill & Knowlton
Howard Essia
Illinois EPA
Jeff Covinskv
HMCIIRCA
Toby Frevert
Illinois EPA
ROCler Dausman
III. Port District
Colleen HUQhes
COM
Laurel O'Sullivan
LMF
Ron French
COM
Julia Wozniak
Midwest Gen.
Stephanie Brock
COM
Bill Constantelos
Midwest Gen.
Todd King
COM
Susan O'Connell
MWROGC
Nelson Chueng
Chlcaao - PlanninQ
Dick Lanvon
MWRDGC
Lisa Frede
CICI
Beth Wentzel
Prairie RIver Network
Joe Deal
City of Chicago
Michelle Gurgas
Sierra Club
Paul Zwiiack
Corn Products
Tzachving Su
USACE
Bob Foster
CPD
Janet Pellegrini
USEPA
Grea Seegert
EA Enaineerina
Ed Hammer
USEPA
Todd Wildermuth
FOCR
Dave Pfeifer
USEPA
Fred
Mey
FOCR
Peter Howe
USEPA
Nick Meaninga
Greelev & Hansen
Allen Burton
Wright State University
On Tuesday, January 27, 2004 the illinois EPA and COM held a meeting of the Stakeholder
Advisory Committee (SAC) to discuss the progress of the Chicago Area Waterway System
Use Attainability Analysis (CAWS UAA). The meeting reviewed data presented during the
December SAC meeting on three CAWS reaches at the northern end of the project area,
presented data on three additional reaches, and covered the follOWing items:
• Overview of the Rain Blocker Program
• Review and Discussion of Proposed Use Classifications and Standards
• Upper North Shore Channel, Lower North Shore Channel, and Upper North Branch of the
Chicago River Data Summary and Discussion of Attainable Uses and Management
Options
Q:IM.liApISACIOI2704 SAC MEETING NOTES.doc
Electronic Filing - Received, Clerk's Office, July 11, 2008
Chicago Area Waterway System UAAJanuary 27/ 2004 SAC Meeting
February 18,
2004
Page 7
Toby Frevert, Illinois
EPA, reinforced the objectives of the UAA, which is to obtain the
highest potential
use possible in
the
next 5 to 10 years. He would like SAC members to
disclose all legitimate
and plausible plans and management options in order to assist in the
proper
desi~ation
of aquatic and recreational uses for these three segments of the CAWS.
• The Sierra Club indicated, without providing details, that there is the potential for major
physical changes
to CAWS within the next 5-10 years.
• The Park District
is
working with USACE on 3 projects in the area. One project is currently
under construction
on the NSC, the other two are still in design phase..
• Dick Lanyon of MWRD described two projects that are evaluating aeration on the North
Shore
Charmel. One project is being conducted
by
Northwestern Engineering students
and is evaluating an aeration plan for using solar powered bottom aerators. The
Northwestern project is
very preliminary and no results have
been
formulated. The other
project is being performed
at the Evanston Ecology Center to evaluate
if
it is possible
to
use the excess energy generated from a new wind generator for instream aeration. Again,
there are no results from this evaluation
at this time.
Toby Frevert
urged SAC members and project staff to focus management efforts on methods.
which center on dissolved oxygen
(00) because these are likely more feasible and cost
effective
than
redesigning the physical
s~cture
of the CAWS. Additionally/he clarified that
MWRD cannot be expected to evaluate dozens of different management options to determine
the impacts
on water quality; we need to concentrate on realistic options. Their analysis
will
also include cost determinations. Finally, he would like the project teams report
to
document
that prohibiting
the use of the waterways
is
not politically feasible or in the best interest of
CAWS. Therefore, sealing off the waterways
is
not an acceptable alternative.
The discussion
of management options was quite extensive. The following suggestions were
made during the discussion:
• Divert MWRD flow from the North Side WRP to the Wilmette Lock for flow augmentation.
This
would alleviate the stagnant conditions and would likely improve velocity,
turbulence
and DO conditions in the Upper NorthShore Channel.
• Construct a series
of SEPA stations
• Disinfect
at the North Side WRP
• Install stormwater BMPs (such as those outlined in NPDES Phase
II Permits).
Municipalities would implement the BMPs. There may not be an accurate method to
determine the
impact BMPs would have on bacteria levels.
Electronic Filing - Received, Clerk's Office, July 11, 2008
EXHIBIT 8
Electronic Filing - Received, Clerk's Office, July 11, 2008
Memorandum
To:
From:
Date:
Toby Frevert, Illinois EPA
Rob Sulski, Illinois
EPA
Ron French, CDM
July
28, 2003
Subject: Meeting Minlftes for tile july Stakeholder Advisory Committee
Attendees:
Name
Organization
Name
Organization
Rob Sulskl
Illinois EPA
Lisa Frede
CICI
."
.\.:
J .
Scott Twalt
Illinois EPA
Laurene von Klan
FCR
'~'
Ron French
COM
Julia Wozniak
Midwest Generation
,',
'.~.)-
Chris Yamaya
COM
Bill Constantelos
Midwest Generation
John O'Anlello
COM
Jessica Harker
Primera
Nicole Rowan
-COM
Sarah Tupper
Sierra Club
Susan O'Connell
MWRD
Albert Ettinger
ELPCI Sierra Club
Lou Konias
MWRO
Paul ZWljack
Com Products
Sergio Sereglno MWRD
Laurel O'Sullivan
LMF
Rebecca Rader
Hill & Knowlton
Jayne LllIlenfeld-Jones LMF Contractor
Joe Deal
Chicago Mayor's Office
NiCk Mennlnga
Greeley & Hansen
Bob Foster
Chicago Park District
Brenda Carter
IERG
Janet Pellegrini USEPA
On Tuesday, July 22, 2003 the
Dlinois
EPA and COM held a Stakeholder Advisory Committee
(SAC)
meeting to discuss the Qrlcago Area Waterway System Use Attainability Analysis
(CAWS UAA). The meeting covered the following items:
•
Friends of the Chicago River - Overview
• Lake Michigan Federation - Overview
• Physical Features of the CAWS
• Overview of Other Urban Streams
Electronic Filing - Received, Clerk's Office, July 11, 2008
,
;:;'k'..
Chicago UAA SAC Meeting
July 28, 2003
Page 7
• Naturally occurring pollutant concentrations
•
Natural ephemeral intermittent or low flow conditions or water levels
• Human caused conditions or sources of pollution
• Dams, diversions
or other
typ~
of hydrologic modifications
• Physical conditions
related to the natural
fe~tures
of tl).e water body
• Controls
~ore
stringent than those required
by
sections 301{b) and 306 of the
A~t
would
result
in
substantial and widespread economic and social impact: . ,
Cost
SAC members were interested in the cost impacts of
MWRD
disinfection. The economic and
social cost impact for disinfection
is
currently not known. However,
illinois
EPA
has
sent a
letter to theMWRD
~equesting
it
cost estimate for disinfection.
.'
A SAC member suggested that an outside organizationestimate MWRD disinfection costs. '
The members were reminded that once MWRD submits their estimate,.IEPA and COM
will
, .have
the
information needed
to
perform
a
separ~te
cost analysis.
One SAC member stated economic discussions are premature. Physical factor limitations
need to be evaluated 'first. The project team
will
present the economics of the attainable
alternatives when they have been determined.
SAC members also questioned the technique of estimating the costs of selecte4remedies. The
typical
cost estimate for a UAA does not incorporate property value along the waterway or
savings on health. expenses. The cost assessment is gauged as a percent burden for the median
income.
'
Water Quality Standards as They Apply to the Chicago Area Waterway
System
Nicole Rowan of CDM presented a map of 2002 303(d) listed segments in the CAWS. A
description
of impairments for each segment and the cause of the impairments were
described for each segment. Water quality violations with in
the CAWS
included thirty-four
parameters.
The water quality standards for both General and Secondary Use were
summarized for each listed parameter.
Goals for Next Meeting
The
next SAC meeting will be held on August 26, 2003 at 9:00 am in the Thompson Center.
The goal for the next meeting includes:
Electronic Filing - Received, Clerk's Office, July 11, 2008
