BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
WATER QUALITY STANDARDS AND
EFFLUENT LIMITATIONS
FOR THE
CHICAGO AREA WATERWAY SYSTEM
AND LOWER DES PLAINES RNER
PROPOSED AMENDMENTS TO 35 ILL.
ADM. CODE 301, 302, 303, and 304
)
)
)
)
)
)
)
)
R08-9
(Rulemaking - Water)
NOTICE OF FILING
TO:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Deborah
J. Williams, Assistant Counsel
Stefanie N. Diers, Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Marie Tipsord, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Persons included
on the attached
SERVICE LIST
PLEASE TAKE
NOTICE that I have today filed with the Office of the Clerk of the
Pollution Control Board MIDWEST GENERATION'S QUESTIONS FOR THE
ENVIRONMENTAL
GROUPS' WITNESS DR. DAVID 1. THOMAS, a copy of which is
herewith served upon you.
MIDWEST GENERATION, L.1.C.
{00004907.DOC;}
Electronic Filing - Received, Clerk's Office, August 25, 2008
Date: August 25,2008
Susan M. Franzetti
NIJMAN FRANZETTI LLP
lOS. LaSalle St., Suite 3600
Chicago, IL 60603
(312) 251-5590 (phone)
(312) 251- 4610 (fax)
Kristy
A.
N. Bulleit
Brent Fewell
HUNTON
&
WILLIAMS, LLP
1900
K.
Street, NW
Washington, DC 20006
(202) 855-1500 (phone)
(202) 778-7411 (fax)
(00004907.DOC;)
Electronic Filing - Received, Clerk's Office, August 25, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 25
tl1
day of August, 2008, I have served
electronically the attached
MIDWEST GENERATION'S QUESTIONS FOR THE
ENVIRONMENTAL
GROUPS' WITNESS DR. DAVID L. THOMAS and NOTICE OF
FILING upon the following persons:
John Therriault, Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Marie Tipsord, Hearing Officer
lIIinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
and
by U.S. Mail, first class postage prepaid, to the following persons:
Deborah
J. Williams, Assistant Counsel
Stefanie N. Diers, Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The participants listed
on the attached
SERVICE LIST
~>~
Susan M.
~anzetti
IOIJ004907.DOC;}
Electronic Filing - Received, Clerk's Office, August 25, 2008
SERVICE LIST
Frederick
M. Feldman
Ronald
M. Hill
Margaret
T.
Conway
Metropolitan Water Reclamation District
of Greater Chicago
III East Erie Street
Chicago,
lL 60611
Bill Richardson, ChiefLegal Counsel
Illinois Department
ofNatural Resources
One Natural Resources Way
Springfield,
lL 62702-1271
Keith Harley
Elizabeth Schenkier
Chicago Legal Clinic, Inc.
205 West Monroe, 4th Floor
Chicago, lL 60606
Katherine D. Hodge
Monica
T. Rios
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box 5776
Springfield,
lL 62705-5776
Richard Kissel
Roy Harsch
DrinkerBiddle
191 N. Wacker Dr., Suite 3700
Chicago, lL 60606-1698
Claire Manning
Brown Hay& Stephens LLP
700 First Mercantile Banlc Bldg
205
S. Fifth St
Springfield,
lL 62705-2459
Frederick Keady
Vermillion Coal Company
1979 Jolms Drive
Glenview, IL 60025
(00004907.DOC;)
Matthew Dunn, Chief
Environmental Bureau
Office
of the Attorney General
100 West Randolph, 12th Floor
Chicago,
lL 6060 I
Ann
Alexander
Natural Resources Defense Counsel
101 N. Wacker Dr., Ste. 609
Chicago, lL 60606
Thomas V. Skinner
Thomas
W. Dimond
Kevin Desharnais
Jennifer
A.
Simon
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
Albert Ettinger
Jessica Dexter
Environmental Law & Policy Center
35
E. Wacker Dr., Suite 1300
Chicago,
lL 6060 I
Lisa Frede
Chemical Industry Council
of Illinois
1400
E. Touhy Ave., Suite 110
Des Plaines,
lL 60018
Charles Wesselhoft
James Harrington
Ross& Hardies
150 N. Michigan Ave
Chicago, lL 60601-7567
Fred
1.
Hubbard
P.O. Box
12
16 West Madison
Danville, lL 61834
Electronic Filing - Received, Clerk's Office, August 25, 2008
Georgia Vlahos
Naval Training Center
260lA Paul Jones
St
Great Lalces, IL 60088-2845
W.C. Blanton
Blackwell Sanders LLP
4801 Main St, Suite 1000
Kansas City, MO 64112
Jerry Paulsen
Cindy
Skulaud
McHenry County Defenders
132 Cass Street
Woodstock, IL 60098
Bernard Sawyer
Thomas Granto
Metropolitan Water Reclamation District
6001
W. Pershing Rd
Cicero, IL 60650-4112
Marc Miller
Jamie
S. Caston
Office of Lt. Governor Pat Quinn
Room 414 State House
Springfield, IL 62706
Bob Carter
Bloomington Normal Water Reclamation
PO Box 3307
Bloomington, IL 61702-3307
Kenneth
W. Liss
Andrews Environmental Engineering
3300 Ginger Creek Drive
Springfield, IL 62711
Jeffrey
C. Fort
Ariel
J. Tesher
Sonnenschein Nath
&
Rosenthal LLP
7800 Sears Tower, 233 S. Wacker Drive
Chicago, IL 60606-6404
I00004907.DOC;}
Kay Anderson
American Bottoms
One American Bottoms Road
Sauget,
IL 62201
Robert VanGyseghem
City
of Geneva
1800 South St
Geneva,
IL 60134-2203
Fredric Andes
Erika Powers
Bames
&
Thornburg
I North Wacker
Dr
Suite 4400
Chicago, IL 60606
Jack Darin
Sierra Club
70 E.
Lalce St
Chicago,
IL 60601-7447
TomMuth
Fox Metro Water Reclamation District
628 State Route 31
Oswego, IL 60543
Vicky McKinley
Evanston Environmental Board
223 Grey Avenue
Evanston, IL 60202
James
L.
Daugherty
Thorn Creek Basin Sanitary District
700 West
End Avenue
Chicago Heights, IL 60411
Tracy Elzemeyer
American Water Company
727 Craig Road
St. Louis,
MO 63141
Electronic Filing - Received, Clerk's Office, August 25, 2008
Irwin Polls
Ecological Monitoring and Assessment
3206 Maple LeafDrive
Glenview,
1L 60025
Dr. Thomas
1. Murphy
2325 N. Clifton Street
Chicago,
1L 60614
Stacy Meyers-Glen
Openlands
Suite 1650
25 East Washington
Chicago,
1L 60602
James
Huff
Huff
&
Huff, Inc.
915 Harger Road, Suite 330
Oal, Brook,
1L 60523
Susan Hedman
Andrew Armstrong
Environmental Counsel
Environmental Bureau
Suite 1800
69 West Washington Street
Chicago,
1L 60602
Matthew C. Read
Hodge Dwyer Zeman
3150 Roland Avenue
P.O. Box5776
Springfield,
1L 62705-5776
IO()[)04907.DOC;}
Traci Barkley
Prairie Rivers Networks
1902
Fox Drive, Suite 6
Champaign,
1L 61820
Cathy Hudzik
City
of Chicago
Mayor's Office
of Intergovernmental Affairs
121 North LaSalle Street, Room 406
Chicago,
1L 60602
Sharon Neal
Commonwealth Edison
125 South Clark Street
Chicago, 11 60603
Beth Steinborn
2021 Timberbrook
Springfield,
1L 62702
Jennifer
A.
Simon
Mayer Brown LLP
71 South Wacker Drive
Chicago,
1L 60606-4637
Electronic Filing - Received, Clerk's Office, August 25, 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)
MIDWEST GENERATION'S QUESTIONS FOR THE ENVIRONMENTAL
GROUPS' WITNESS DR. DAYID L. THOMAS
Midwest Generation, 1.1.C. ("Midwest Generation" or "MWGen"), by and through its
attorneys, Nijman Franzetti LLP and Hunton
&
Williams LLP, submits the following questions
based upon the Pre-filed Testimony of Dr. David 1. Thomas submitted on behalf of the
Environmental Groups, Environmental
Law and Policy Center, Natural Resources Defense
Council, Prairie Rivers Network, Sierra Club - Illinois Chapter, Friends
ofthe Chicago River,
and Openlands. Midwest Generation requests that the Hearing Officer allow follow-up
questioning to be posed based
on the answers provided.
QUESTIONS
1.
Have you conducted any QHEI surveys in the Upper Dresden Pool (UDP) and/or in the
Chicago Sanitary
&
Ship Canal (CSSC)? For any such QHEI surveys, please identifY
when the survey was conducted, the area in which it was conducted, the number of
locations for which a QHEI score was prepared and what the results were of the QHEI
survey?
2.
Have you conducted QHEI surveys anywhere else? Please
identifY how many and
where?
3.
Have you ever conducted any type
of aquatic life or habitat survey in the UDP or eSSC?
4.
For the habitat studies and life history studies referenced at the bottom of the first page of
your testimony, please identifY which of these studies were habitat studies and which
Electronic Filing - Received, Clerk's Office, August 25, 2008
were life history studies. For the life history studies, what fish species was studied?
Please also identify when these studies were conducted.
5.
During the twelve-year period from May 1985 through November 1997 when you were
Director
ofthe Illinois Waste Management and Research Center, did your job
responsibilities involve projects that focused on aquatic habitat quality or aquatic
biology?
6.
During the subsequent eleven-year period from December 1997 through February 2008
when you were the Chief
of the Illinois Natural History Survey, did you perform any
field surveys
of aquatic habitat or conduct any QHE1 surveys of a river?
7.
Please describe your experience in handling projects that involved constructing
improvements to the physical habitat in a river and the resulting effects on the aquatic
fish community.
8.
Have you conducted any field work that studied the effects of ambient water
temperatures on aquatic species? Have you conducted any laboratory studies
of such
effects?
9.
What do you mean by the statement in your testimony (Section II, 2
nd
page, 1
st
para.) that
"I also understand the argument that a QHE1 score of 45-60 is a range in which
waterways may
be able to meet the Clean Water Act goal, depending on the particular
characteristics
ofthe area." Does this mean you agree with the argument?
1
O.
Regarding your testimony (Section II, 3'dpage, 1
st
para.) that QHE1 scores above 45
"seem to predominate" in the UDP, did you review the "particular characteristics of the
area"
of these scores, and if so, what did you conclude as to which ones may be able to
meet the Clean Water Act goal?
II.
What are "micro-habitats" (see Section II, 2
nd
page, 2
nd
para. of Pre-filed Testimony)?
Describe the location and extent
of the micro-habitats that exist in the Upper Dresden
Pool and in the CSSC, respectively.
12.
Your pre-filed testimony refers to "habitat improvement" in the Upper and Lower
Dresden Pool that could result in improvement
offish communities (Section II, 3'd page,
1
st
para. and 4
th
page, 2
nd
para.) and also that physical habitat can be improved "by
providing physical structure for the growth of microbial organisms and
macroinvertebrates that can provide food to fish" (Section II, 4
th
page, 2
nd
para). Please
explain in greater detail the nature and extent
ofthe improvements to habitat and their
location in the
UDP that you are referring to in this testimony.
13.
Do you believe the absence of sufficient food for fish is currently a limiting factor to
species abundance and diversity in the UDP?
2
Electronic Filing - Received, Clerk's Office, August 25, 2008
14.
Your pre-filed testimony states that "[m]any structures will also provide shelter and
potential breeding habitat for fish." (ld.) What fish species are you referring to, and
of
those species, will the suitability of the habitat still be affected at all by the presence of
sediments?
15.
Please identify the facts that support your belief that the UDP "can support a more
balanced and diverse fish population" (see Section II, 3rd page, 2
nd
para.).
16.
What are the temperatures in the UDP you are referring to as necessary to improve
species abundance and diversity? What improvements would occur at such
temperatures?
17.
You testify that white sucker and l0,fperch are "temperature-sensitive species" (see
Section II, 4
th
page, last para, and 5 page, 1
st
para). What information did you rely upon
to determine that these species are temperature-sensitive?
18.
Will a reduction of temperatures in the UDP without improvements in dissolved oxygen
levels achieve a diverse fish population?
19.
What are the temperatures you are referring to in your statement that "[t]emperatures in
the Upper Dresden Pool at times in the summer months are sufficient to cause avoidance
and limit the carrying capacity
of the system"? (See Section II, 3
rd
page, 2
nd
para.) What
studies are you relying on to support this statement?
20.
In
your testimony, you note that you "have not seen data that demonstrates that sediment
toxicity is a major factor limiting the aquatic life potential
ofthis system." Did you
consider in your review of QHEI scores to what extent sediments were present in those
areas that scored greater than 45 and
to what extent the presence ofthose sediments,
separate and apart from the issue oftheir toxicity, would impair the quality ofthe location
for aquatic habitat? (See Section II, 4
th
page, 1st para.)
21.
Do you have an opinion as to whether sediment toxicity is a factor limiting the aquatic
life potential
ofthis system?
22.
What type
ofhabitat does the white sucker need in order to spawn successfully in a
waterway?
23.
What type
of habitat does the logperch need in order to spawn successfully in a
waterway?
24.
Do you agree with the EA fish studies' conclusions that the fish community in the Upper
Illinois Waterway (UIW) is highly stressed and habitat-limited?
25.
Do you agree with the
EA fish studies' conclusion that diversity in this system was
dependent on species adapted to contaminated conditions and that because
of these
3
Electronic Filing - Received, Clerk's Office, August 25, 2008
inherent limitations the ichthyoplankton community was not likely to change in the UIW
for the foreseeable future?
26.
In your testimony, you indicate that "these waterways could support tolerant or
intermediately tolerant species" (Section III, 5
th
page, 2
nd
para), and indicate further that
this conclusion is based on your personal knowledge
of the CAWS. Explain what
personallmowledge you are referring to.
27.
Please
identifY the boundaries of the area you are referring to at the bottom of page 4 of
your testimony where you reference "Lower Dresden Pool."
28.
What criteria
do you believe should be used to identifY a species as a "Representative
Aquatic Species" for purposes of aquatic life use designations?
29.
On page 5
of your testimony, in the last paragraph of Section II., you reference that in the
EA 1994 Ichthyoplankton Investigation (Attachment LL) that roughly 22,000 larval and
yay
fish were collected. Do you agree that the EA 1994 Investigation also stated that
only six species or taxa accounted for 86% ofthese individuals collected? Did you
review the EA finding that these six species/taxa shared early life history characteristics
that allowed them to be successful in the system, namely certain adaptations that allow
their eggs/larvae to tolerate low dissolved oxygen levels and have minimal contact with
bottom sediments?
30.
Have you evaluated the effect
of the impounded nature of the UDP on the quality of
aquatic life community that it can attain?
Respectfully submitted,
~WE?,:;~LC
One ofIts Atto
ys
Dated: August 25, 2008
Susan M. Franzetti
NIJMAN FRANZETTI LLP
10 S. LaSalle St., Suite 3600
Chicago, IL 60610
(312) 251-5590
Brent Fewell
Kristy
A.
N. Bulleit
HUNTON
&
WILLIAMS LLP
1900 K Street, N.W.
Washington, DC 20006
(202) 955-1891
4
Electronic Filing - Received, Clerk's Office, August 25, 2008