1 IN THE MATTER OF:

)

2 WATER QUALITY STANDARDS AND

)

EFFLUENT LIMITATIONS FOR THE

) No. R08-9

3 CHICAGO AREA WATERWAY SYSTEM

)

AND THE LOWER DES PLAINES RIVER: )

4 PROPOSED AMENDMENTS TO 35 ILL.

)

ADM. Code Parts 301, 302, 303

)

5 and 304.

)

TRANSCRIPT OF PROCEEDINGS held in the

9 above-entitled cause before Hearing Officer Marie

10 Tipsord, taken before Tamara Manganiello, RPR, at

11 100 West Randolph Street, Room 9-040, Chicago,

12 Illinois, on the 25th day of September, A.D., 2008,

13 commencing at 9:08 a.m.

L.A. REPORTING (312) 419-9292

1 APPEARANCES

2 ILLINOIS POLLUTION CONTROL BOARD:

Ms. Marie Tipsord, Hearing Officer

3 Ms. Alisa Liu, P.E., Environmental Scientist

Mr. Anand Rao, Senior Environmental Scientist

4 Mr. Tanner Girard, Acting Chairman

Mr. Nicholas Melas

5 Mr. Thomas Johnson

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

7 Ms. Stefanie Diers

Ms. Deborah Williams

9 ENVIRONMENTAL LAW AND POLICY CENTER,

33 East Wacker Drive

10 Suite 1300

Chicago, Illinois 60601

11 (312) 795-3707

BY: MR. ALBERT ETTINGER

MS. JESSICA A. DEXTER

Appeared on behalf of ELPC, Prairie Rivers

Network and Sierra Club

15 THE CHICAGO LEGAL CLINIC

2938 East 91st Street

16 Chicago, Illinois 60617

(773) 731-1762

17 BY: MR. KEITH HARLEY

Appeared on behalf of the Southeast

Environmental Task Force

BARNES & THORNBURG, LLP,

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606-2833

(312) 357-1313

BY: MR. FREDERIC P. ANDES,

Appeared on behalf of the Metropolitan

Water Reclamation District of Greater

Chicago

L.A. REPORTING (312) 419-9292

HEARING OFFICER TIPSORD: Good

morning. My name is Marie Tipsord and I am

the Board's hearing officer in these

proceedings entitled Water Quality Standards

and Effluent Limitations for the Chicago Area

Waterway System and Lower Des Plaines River,

Proposed Amendments to 35 Ill. Admin. Code

301, 302, 303 and 304. This is docket number

R08-9.

To my immediate right is

Dr. Tanner Girard, the presiding Board member

on this matter. To his immediate right is

Board member Nicholas J. Melas and Board

member Andrea Moore will be joining us.

To my far left is Board member

Thomas Johnson. To my immediate left, Anand

Rao, and to his left, Alisa Liu from our

technical staff.

This is the third day in our fifth

set, which someone tells me is day 17 -- is

that correct -- of this hearing. We will

continue today hearing the testimony from the

District and we will begin with Adrienne

Nemura, who has been sworn in already.

L.A. REPORTING (312) 419-9292

MR. ANDES: And, Ms. Tipsord, if I can

add a couple of things for the record to

respond to issues raised yesterday?

HEARING OFFICER TIPSORD: Please.

MR. ANDES: We're in the process of

compiling and copying materials responsive to

a number of the information requests

yesterday. Some of them may be available

later today and we will have those for the

parties.

Two things that we do have now,

one question was asked concerning the

Chesapeake Bay and the specific UAA factors

that were used there. And we have -- the

Chesapeake Bay documents are voluminous. We

can say -- I do have a link to the Chesapeake

Bay documents for the UAA.

It does make clear that the two

factors that were addressed there were

natural conditions that may prevent

attainment of current designated uses as well

as human cause conditions that cannot be

remedied which appear to prevent attainment

of current designated uses. And I have

L.A. REPORTING (312) 419-9292

copies of the link for that voluminous

document.

Also, one of the issues that I

know we ended with some confusion about was

the precise difference between data and

estimates and how those terms were used in

attachment four to Dr. Rijal's testimony.

And to assist in explaining how

data and estimates were derived, we had

Dr. Dennison generate a very brief and fairly

simple explanation of that analytical

process, which we can provide for the record.

And he can be available for cross examination

regarding this document. It has as

attachments to it Figure 2 and Figure 3 from

Attachment 4 because it references those two

attachments.

HEARING OFFICER TIPSORD: Let's first

mark the link as Exhibit 118, if there's no

objection. Seeing none, it's Exhibit 118.

Can someone close that door?

Thanks, Cecil.

Two pages each?

MR. ANDES: Yes. And then two

L.A. REPORTING (312) 419-9292

attachments.

(Document tendered to the

Hearing Officer.)

HEARING OFFICER TIPSORD: Two pages

and then two attachments.

I'm going to take the statement

which begins, "please refer to report number

05-15 for figures and table numbers," and the

second page I was handed begins, "the

difference between the wet weather fecal

coliform."

And then figure two and figure

three we will mark all of those as

Exhibit 119, if there's no objection. Seeing

none, those are Exhibit 119.

And then are we ready to go?

Ms. Williams, please.

MS. WILLIAMS: Good morning,

Ms. Nemura. Thank you for joining us again.

For the record, my name is Debbie

Williams. I'm here on behalf of the Illinois

EPA. And since your counsel has been so good

at providing handouts, I think I will start

with my pre-filed question 30. In question

L.A. REPORTING (312) 419-9292

30 I ask, in attachment three to your

testimony you cite a letter from US EPA as US

EPA, paren, 2008, could you please provide a

copy of this letter?

MR. ANDES: We will provide a copy. I

thought I had a copy. I don't have it with

us, but we will submit that later this

afternoon.

MS. WILLIAMS: Thanks. In reviewing

the questions, I believe I skipped over

question six yesterday as I was skipping over

questions that I thought were aquatic life

related.

So question six asked could you

please elaborate on your role for NACWA,

N-A-C-W-A, which I believe stands for

National Association of Clean Water Agencies.

THE WITNESS: Yes. I served on an

expert panel where I assisted NACWA's expert

in the case in preparing for her testimony

and also in advising NACWA's counsel on

negotiating a settlement agreement.

MS. WILLIAMS: Can you please be a

little more specific about what areas or

L.A. REPORTING (312) 419-9292

subject matters that advice was centered on?

THE WITNESS: Specifically, I reviewed

EPA's critical past science plan and the

associated studies that they included in that

plan that they were going to perform or had

performed to inform the development of new

primary contact recreation criteria as well

as their schedule.

And having participated in the

February 2008 stakeholder meeting, I

identified a number of important aspects that

would allow informed decision making with

full participation of scientific experts as

well as affected stake holders.

MS. WILLIAMS: I think it may be

logical to move on to question 15 next then

which states that Page 4, paragraph two of

your testimony states, quote, there has been

long-standing concern as well as confusion

over the validity and implementation of US

EPA's 1986 bacteria criteria. Can you talk

to us about what you mean here about the

concerns?

THE WITNESS: Well, that statement was

L.A. REPORTING (312) 419-9292

intended to be a general statement about the

fact that the E. coli criteria from 1986

are -- don't offer the scientific certainty

that many would like to see. So it was more

of a general statement as opposed to anything

specific. But if you'd like me to talk about

the specific concerns --

MS. WILLIAMS: Why don't you just

briefly do that? We've talked in some detail

about some specifics, but I would appreciate

your sort of big picture look at that.

THE WITNESS: Well, the biggest

problem associated with the '86 criteria is

that some of the epidemiological studies that

were used to formulate the numeric criteria

were not statistically significant and they

were studies that were conducted quite a

while ago. And today's epidemiological

studies are following much more rigorous

protocols.

The other big concern is that EPA

struggled over many years trying to provide

information on how those criteria should be

implemented. They went through numerous

L.A. REPORTING (312) 419-9292

drafts of their implementation guidance and

had sort of conflicting statements throughout

and could never finalize that implementation

guidance.

And it wasn't until the Beach Act

where EPA did a thorough review of the

scientific basis for the '86 criteria and

actually came out with two fact sheets that

addressed some serious implementation

problems having to do with how the geometric

means should be applied and how the single

sample maximum should be used in regulatory

programs and decisions about, say, beach

closures.

MS. WILLIAMS: Is it your

understanding that they ended up revoking

some of their guidance as a result of

problems? I'm not sure if I'm stating this

accurately or not. You probably understand

better what action they took as a result.

THE WITNESS: Well, they had developed

two drafts of the implementation guidance

which remain draft, and one is actually not

accessible on their website, although it's

L.A. REPORTING (312) 419-9292

widely circulated in the community.

So I wouldn't say that they

revoked anything, it's more that they failed

to issue those guidance documents. But they

did issue those two fact sheets, which I

recommended, which I think were valuable for

everybody that's involved in evaluating

recreational use criteria.

MS. WILLIAMS: When you -- in the

statement that I read as part of this

question, you point to confusion, you say

there's been long-standing concern as well as

confusion. Does your answer explain the

confusion or did you mean something else by

confusion?

THE WITNESS: Well, what I meant by

confusion is when the '86 criteria were

promulgated by EPA, many states decided to

adopt those federal criteria. Some states

interpreted the single sample maximum as a

value that should never be exceeded, for

example, Indiana.

Other states said, you know, we're

going to have a difficult time switching to

L.A. REPORTING (312) 419-9292

E. Coli criteria so they kept their fecal

coliform criteria.

And there's also confusion about

how the geometric means should be applied.

The epidemiological studies that the '86

criteria were based on looked at a geometric

mean across an entire recreation season. So,

for example, when Missouri just recently

adopted the E. Coli criteria, they adopted it

for the entire recreation season. So you

average all of the samples from May through

October to calculate your geometric mean and

then you assess whether that exceeds the '86

criteria or not.

Other states said, well, no, we're

going to apply the geometric mean on a

monthly basis, and other states said, no,

we're going to apply it on an every 30-day

period, so, you know, May 1 through May 30

might be one period, May 2nd through June 1st

would be another period and so forth.

MS. WILLIAMS: Would you agree that

once US EPA is able to develop a revised

criteria document for bacteria pathogens,

L.A. REPORTING (312) 419-9292

whatever it turns out to be, that there would

be a need for guidance on implementation from

US EPA, as well?

THE WITNESS: Yes. And they have

agreed to include that in their schedule for

development of the criteria.

MR. ETTINGER: Excuse me, it's Albert

Ettinger. Can I just follow-up on your last

answer? You talked about averages and the

geometric mean over certain periods. What

was that -- what's that specifically for,

assessing whether the waters impair under

303D or what would you -- what are you

talking about there in terms of how to apply

it?

THE WITNESS: With the geometric mean

criterion that would be written into a

state's water quality standards, the state

would then need to use that in their 305B and

303D listing process or their 305B assessment

and 303 listing process.

The geometric would also be used

to calculate TMDLs as the target for the

total maximum daily load. And the geometric

L.A. REPORTING (312) 419-9292

mean would also be used as an instream

criterion that a -- when the state goes to

write an NPDS permit would have to assure

that that criterion would not be violated by

that discharge.

MR. ETTINGER: Now the mean over a

period, that wouldn't be used to decide

whether it was safe to be on a beach on a

particular day, would it?

THE WITNESS: The -- in order to make

an assessment of whether a beach should

remain open for contact recreation or a beach

should stay closed and not be used for

contact recreation, there needs to be a

measurement that can be taken. And as part

of this lawsuit on the Beach Act, the concern

was specifically people want to know if I go

to a beach, is it safe.

In EPA's fact sheet on the single

sample maximum, they clarified that that

single sample maximum is appropriate for

decisions about closing beaches.

MR. ETTINGER: It wouldn't be much

comfort for me to know that, on average, it's

L.A. REPORTING (312) 419-9292

safe to swim on a beach if the day I'm

intending to swim it's got a very high level

of pathogens or indicators; is that correct?

THE WITNESS: I'm sorry?

MR. ETTINGER: It wouldn't be much

comfort to me to know that, on average, it's

safe to swim on a beach if on the particular

day I was going to swim, it wasn't safe?

THE WITNESS: That is why you have a

value that you make for decisions about beach

closure or not.

MR. ETTINGER: And that's based on a

single sample maximum?

THE WITNESS: It depends on which --

well, in EPA's '86 criteria they suggest that

that single sample maximum is the appropriate

value for making decisions. How a particular

beach manager applies that single sample

maximum may vary.

MR. ETTINGER: How would it vary?

THE WITNESS: It depends on sampling

protocol. If you go out to a particular spot

and you take a single sample, the E. Coli

that you would measure in that particular

L.A. REPORTING (312) 419-9292

sample may not be representative of, say, the

E. Coli over at this location, so you may

decide that you want to take multiple samples

at your beach and average them together and

then compare that to the single sample

maximum.

MR. ETTINGER: Okay. But nobody is

saying that you should take an average over

some monthly period in determining whether or

not it's safe to be on a beach in a

particular day?

THE WITNESS: Not on a particular day.

But in terms of -- in terms of whether a

particular recreational area is violating the

criteria, then the geometric mean is applied.

A good example of that is if you

look at the Great Lakes beaches, the

governors are thrilled when they can say this

beach was only closed for ten days. And

in -- because of just reality of bacteria in

our environment, it exists, okay, whether

it's from anthropogenic sources or

non-anthropogenic sources such as wildlife.

So if you have a beach that's

L.A. REPORTING (312) 419-9292

closed for just ten days and that's viewed as

achieving our water quality goals. You have

a beach that's closed, say, 50 percent of the

recreation season, that obviously has a

chronic issue. So we have to consider that

in how we view the recreational use criteria.

MR. ETTINGER: I'm a little confused

then. I thought yesterday you said we needed

wet weather standards. But let's say we had

a beach that was perfectly safe 350 days a

year, but because of wet weather conditions

15 days a year it had high pathogen levels.

Do we have a problem or not?

THE WITNESS: When I refer to wet

weather standards, I was referring

specifically to the Chicago Area Waterways,

which is not a beach.

And under a use-attainability

analysis, you need to assess what the highest

attainable use is. And the fact that we have

wet weather discharges to the Chicago Area

Waterways, the fact that it is intentionally

managed to deal with getting the storm water

out of the city under rainfall conditions so

L.A. REPORTING (312) 419-9292

that the city doesn't flood, and you have all

the accompanying problems with that, that in

setting -- in doing the UAA and establishing

what the highest attainable use is, my point

is that under dry weather conditions the

highest attainable use is maybe different

than what the highest attainable use is under

wet whether conditions because you can't make

those wet weather problems go away.

MR. ETTINGER: Well, you might not be

able to make them -- the wet weather problems

go away in my hypothetical beach. Would you

have a wet weather standard for that beach?

THE WITNESS: It's such a hypothetical

question, I'm not clear how to answer it.

MR. ETTINGER: Well, let's make it

less hypothetical. There are beaches on Lake

Michigan which are occasionally closed

because of wet weather events; are you aware

of that?

THE WITNESS: Yes.

MR. ETTINGER: Okay. Do you believe

we need a wet weather standard for those

beaches on Lake Michigan?

L.A. REPORTING (312) 419-9292

THE WITNESS: You would have to look

at that beach. You would have to look at the

reasons that the beach is being closed and

then you would have to assess whether you

could remedy those causes. You would have to

do a use attainability analysis for that

beach and I don't have the information on

what the sources are.

It's also quite possible that the

reason the beach is being closed is because

of bacteria that's in the sand that gets

resuspended because of, you know, wild foul

that is, you know, on the beach and, you

know, causing problems. So whether you need

a wet weather standard for that beach, I

can't answer that.

MR. ETTINGER: Let us take a

hypothetical example, it has nothing to do

with our situation necessarily. Let's say we

had beaches which were periodically closed in

part because of a necessity of opening locks

on a certain large lake to avoid flooding in

a certain large municipal area.

MR. ANDES: This has no relevance to

L.A. REPORTING (312) 419-9292

this situation?

MR. ETTINGER: I'm asking a

hypothetical question. Under those

circumstances, might you consider wet weather

standards for those beaches?

THE WITNESS: As I said before, you

would have to do a use-attainability analysis

for that beach and look at whether those

problems could be remedied.

MR. ETTINGER: So I guess the answer

to my question is, yes, you might want to

consider doing a use-attainability analysis

to decide whether you needed a wet weather

standard for that beach?

THE WITNESS: Yes.

MR. ETTINGER: Thank you.

MS. WILLIAMS: When you just testified

that the highest attainable use in wet

weather may be different than dry weather,

might it be different in light rain weather?

Is it just these two categories? Could it be

that the highest attainable use was different

in the light rain than in no rain?

THE WITNESS: How would you define

L.A. REPORTING (312) 419-9292

light rain?

MS. WILLIAMS: As it was defined in

the District's reports that we talked about

yesterday.

HEARING OFFICER TIPSORD: Deb, we're

getting -- we have trains going by and when

you drop your voice, we can't hear you.

MS. WILLIAMS: Do you need me to

repeat the last question?

HEARING OFFICER TIPSORD: I didn't get

that whole last question.

MS. WILLIAMS: I would define light

rain similarly to Dr. Rijal's definition

yesterday. Do you have it, Fred, to show

her?

MR. ANDES: I'm looking.

HEARING OFFICER TIPSORD: I believe

she defined light rain as rain that

occurred -- she classified light rain events

as rain that occurred one day before -- one

of the two days before --

MR. ANDES: Or the day of.

HEARING OFFICER TIPSORD: -- or the

day or the day after, but only one of the

L.A. REPORTING (312) 419-9292

three sample days, I believe. I'm getting a

nod from the audience. Dr. Rijal is with us

and she is sworn in. Dr. Rijal, could you

fill him in?

DR. RIJAL: (Inaudible.)

THE COURT REPORTER: I can't hear her.

DR. RIJAL: A light rain was defined

as any measurable rainfall that occurred on

the same day or on one or two days prior to

routine fecal coliform sampling from

monitoring station.

HEARING OFFICER TIPSORD: Thank you,

Dr. Rijal.

DR. RIJAL: And usually in a light

rain we have ranges between .1 to .4 inches

of rain.

MS. WILLIAMS: I'm ready.

THE WITNESS: You could look at

differences between light rains and heavy

rains, but if we go back to my basic

testimony, which is the Agency didn't

consider the wet weather impacts in proposing

the revised designated uses without the

numeric criterion and that the Agency

L.A. REPORTING (312) 419-9292

basically said that it's clear that as a

result of CSOs during wet weather that any

recreational activity in waterway was

unhealthy during periods when raw sewage was

present. I don't know how --

MS. WILLIAMS: Right. That

statement --

THE WITNESS: So I don't really know

how to address your question.

MS. WILLIAMS: Okay. I will explain.

That statement refers specifically to

something I would consider heavy rain or

clearly wet weather, right, we don't have CSO

overflows into the system in that example.

And I'm trying to understand based

on your recommendation how many categories of

things do you think we have failed to

consider and would one of them be light rain

that wouldn't be covered by a statement like

that?

THE WITNESS: Well, I think the

specific question was -- that is relevant is

does that light rain cause a wet weather

discharge?

L.A. REPORTING (312) 419-9292

MS. WILLIAMS: Okay. And by wet

weather discharge, we mean from the CSOs?

THE WITNESS: It could apply to the

CSOs. It could also apply to municipal storm

water discharge that will also contribute

pathogens to the waterways.

MS. WILLIAMS: Could it apply to just

runoff from the bank?

THE WITNESS: I haven't looked at the

non-point source runoff issues, so I can't

address that. I was specifically addressing

point sources which include CSOs and

municipal storm water.

MS. WILLIAMS: And are those the

specific sources you're suggesting need to be

considered?

THE WITNESS: Yes.

MS. WILLIAMS: Those are the universe

of sources, sources designated as point

sources under the Clean Water Act as opposed

to non-point sources?

THE WITNESS: In terms of dealing with

whether -- it's my recommendation that wet

weather conditions need to be considered in

L.A. REPORTING (312) 419-9292

setting uses and criteria for the waterways.

MS. WILLIAMS: I'm trying to

understand what those are to you, those wet

weather conditions.

Are they when non-point sources as

well as point sources are impacting or just

when rain is heavy enough to have point

source discharges to the waterways?

THE WITNESS: I haven't specifically

assessed that.

MS. WILLIAMS: I think she answered.

That's fine.

HEARING OFFICER TIPSORD: Mr. Harley,

you have a follow-up?

MR. HARLEY: Good morning. Keith

Harley. Could you have a wet weather event

which did not cause any CSO overflows?

THE WITNESS: I haven't -- I'm not

familiar enough with the correlation between

rainfall and CSO discharges to answer that

question.

MR. HARLEY: In light of the answer

that you just gave, what would be the basis

for a wet weather standard in the absence of

L.A. REPORTING (312) 419-9292

knowing whether or not it would cause a CSO

overflow in the first place?

THE WITNESS: I'm confused by the

question. There is information that is out

there about rainfall, when CSOs occur, that

could be used to form the development of a

wet weather standard. And I can't

specifically address, you know, what that

would look like because I haven't evaluated

it in any level of detail.

MR. HARLEY: But the factor of CSO

overflow would be relevant to that

determination as well as just the level of

precipitation?

THE WITNESS: It could be, yes.

MR. HARLEY: May I continue with a

couple more questions, please?

HEARING OFFICER TIPSORD: Sure.

MR. HARLEY: In terms of controlling

combine sewer overflows, combined sewer

overflows are subject to a regulatory system;

is that correct?

THE WITNESS: Yes.

MR. HARLEY: And part of that

L.A. REPORTING (312) 419-9292

regulatory system is designed to minimize

combined sewer overflows; is that correct?

THE WITNESS: The regulatory system

is -- was established in 1994 as the combined

sewer overflow policy recognizing that

combined sewer systems were, by nature,

designed to overflow under some conditions.

The CSO policy indicates that CSO

controls should be based on a number of

factors, including attainment of water

quality standards, including cost

effectiveness and including issues associated

with financial capability.

So to say that the CSO policy is

as simple to just minimize CSOs I think

misses the reason that we have a CSO policy.

MR. HARLEY: Would your answer change

in light of the obligation of CSO operators

to have long term control plans?

THE WITNESS: No.

MR. HARLEY: So, in your opinion, it

is not the goal of CSO regulations to

minimize CSO overflow events?

THE WITNESS: As I said before, there

L.A. REPORTING (312) 419-9292

are a number of objectives of the CSO policy

and all of those objectives need to be

considered in how a community develops their

long-term control plan.

MR. HARLEY: So as you testified here

today, you are not prepared to testify that

the goal of CSO regulations is to minimize

overflow events?

THE WITNESS: Are you familiar with

the concept of knee-of-the-curve?

MR. HARLEY: I'm not testifying. I

can't testify.

THE WITNESS: As I said before,

there's a number of goals that the CSO policy

was design to meet. And to just simplify it

down to say that the goal of the CSO policy

is to minimize CSOs is not accurate.

MR. ANDES: We'd be glad to provide a

copy of that policy, if necessary.

MR. HARLEY: I've got as far as

I've --

MS. WILLIAMS: Ms. Nemura, have you

heard of the nine minimum controls?

THE WITNESS: Yes.

L.A. REPORTING (312) 419-9292

MS. WILLIAMS: Is there a requirement

in the nine minimum controls that CSO

communities attempt to minimize CSO

discharges?

THE WITNESS: The nine minimum

controls are technology-based controls. And

one of the nine minimum controls is to, say,

maximize treatment at the wastewater

treatment plant.

So you could say that in the

extent that you can do that, you are helping

to minimize the combined sewer overflow

discharge.

When you say apply a low-cost

technology at a CSO if you can raise the weir

height to get more of that CSO to the

treatment plant, that is an attempt to

minimize that individual CSO.

But if you were to interpret the

CSO policy as the objective is to -- that the

single --

MS. WILLIAMS: I didn't ask that.

That wasn't my question. Thanks.

HEARING OFFICER TIPSORD: Off the

L.A. REPORTING (312) 419-9292

record for just a second.

(Whereupon, a discussion

was had off the record.)

HEARING OFFICER TIPSORD: Let's go

back on the record.

MS. WILLIAMS: In question 14 I ask,

you testify on Page 4, quote, if no

regulatory target is provided to address wet

weather conditions, the public will not know

when the water is safe for recreation and

when it is not.

Can you explain how numeric

bacteria criteria would address this concern?

THE WITNESS: The numeric criteria are

needed to define what the acceptable level of

bacteria is in the waterways that would still

protect the designated use.

MS. WILLIAMS: How would a wet weather

exception from a numeric bacteria criteria

help the public know when it's unsafe to use

the CAWS?

THE WITNESS: If the water quality

standards show that the proposed uses are not

attainable under wet weather conditions, then

L.A. REPORTING (312) 419-9292

it's clear to the public that the water body

is not suitable for that use under those

conditions.

So if I go to the water quality

standard and I see incidental contact

recreation and I don't see anything that

says, by the way, there is, you know, a

variance or a special CSO impacted category,

then I would interpret that as I can use the

waterways for incidental contact recreation

under all conditions.

MS. WILLIAMS: Do you understand what

the current recreational use designation and

criteria are for the CAWS?

THE WITNESS: My focus was

specifically on the proposed standards.

MS. WILLIAMS: Do you know whether or

not -- well, do you know what it is?

(Whereupon, a discussion

was had off the record.)

THE WITNESS: I haven't gone into any

analysis of the proposed standards -- or the

current standards, sorry.

MS. WILLIAMS: Thanks, Fred.

L.A. REPORTING (312) 419-9292

MR. ANDES: You're welcome.

MS. WILLIAMS: What I'm trying to

understand is if you would have the same

concern today based on the level of

recreation in the CAWS and based on the

current designation of these waters? Do you

know that today or are you not able to answer

that question?

THE WITNESS: Well, my concern is that

if you're going to change the standard, that

you do it right.

MS. WILLIAMS: So you're not concerned

if the current standard doesn't provide the

public information about knowing whether the

current level of recreation is safe?

THE WITNESS: I haven't looked at

that.

MS. WILLIAMS: Okay.

MR. ETTINGER: Well, hypothetically,

let's assume that under the current standard

the use is not being met much of the time;

what would you say should be done?

THE WITNESS: What do you mean by much

of the time?

L.A. REPORTING (312) 419-9292

MR. ETTINGER: Well, I'd rather leave

it hypothetical. So let's say 251 days a

year.

THE WITNESS: Due to what factors?

MR. ETTINGER: Discharges from sewage

treatment plants, CSOs, other factors.

THE WITNESS: If a use is not being

met, then it would be appropriate to assess

why the use is not being met and what is

attainable, which is the UAA.

MR. ETTINGER: Okay. I'm going to use

an aquatic life example here, but this is to

make a general -- raise a general question as

to what the witness feels is appropriate as

to a water use designation.

HEARING OFFICER TIPSORD:

Mr. Ettinger, we're having the same problem,

when the trains go by, we can't hear you.

MR. ETTINGER: Okay. The people next

to me should probably use ear plugs then.

My example is going to be one of

an aquatic life use designation, but it is to

raise a question regarding appropriate

designation of waterways in general.

L.A. REPORTING (312) 419-9292

So let's assume, hypothetically,

that under a current dissolved oxygen

standard, dissolved oxygen is not supposed to

go under 3.0 milligrams per liter but at

times it goes well below that. Is that

something that a regulatory agency should

look at and consider as needing a potential

use re-designation?

THE WITNESS: The Agency would need to

understand why that criterion is not being

met. And if it was a simple fix to meet that

criterion, the Agency could say these are the

actions that need to be taken to meet that

default criterion. They could do a total

maximum daily load, they could, you know,

look at NPDS discharges and do waste load

allocations.

However, if that default

criterion -- if it's not easy to fix those

other sources, then the Agency would more

than likely choose to do a use attainability

analysis and would need to look at all the

factors.

MR. ETTINGER: Would it be tolerable

L.A. REPORTING (312) 419-9292

for the agency to simply issue permits to

dischargers that allow them to cause or

contribute to violations of the existing use

designation and the criteria applicable to

it?

THE WITNESS: A permit is supposed to

ensure that water quality standards are met.

It depends on the particular language in the

permit. For combined sewer overflows, those

are specifically allowed to be permitted

under the CSO policy with the nine minimum

controls and the long-term control plan.

MR. ETTINGER: I thought you said

earlier, however, that the CSO policy

requires compliance with designated uses?

THE WITNESS: I don't know that I said

that. I said that under the CSO policy the

attainment of water quality standards,

whether they are current or revised water

quality standards, is a factor that needs to

be considered in development of the long-term

control plan.

MR. ETTINGER: So one can now grant a

permit for a CSO discharge which will allow

L.A. REPORTING (312) 419-9292

for the non-attainment of the current

designated use?

THE WITNESS: As I said, with the CSO

policy, which is now part of the Clean Water

Act, the CSOs are allowed to be permitted,

they are not considered to be the same as

waste water treatment plants. And under the

CSO policy you are supposed to assess whether

the current water quality standards can be

attained.

And if you can't attain them, then

you are to revise the water quality standards

so that the long-term control plan, when

implemented, will not result in violations of

the appropriate water quality standard.

MR. ETTINGER: So to get back to my

hypothetical, if hypothetically an agency was

faced with a situation in which its currently

designated uses were not being attained, it

would be necessary for it to do something,

consider TMDLs, look at a use attainability

analysis or pursue enforcement action, but it

couldn't simply wash its hand of the matter

and walk away?

L.A. REPORTING (312) 419-9292

THE WITNESS: I can't testify about

washing hands or enforcement actions.

MS. WILLIAMS: We've had a lot of

testimony about washing hands I think in

these hearings.

THE WITNESS: But what I can say is

that under EPA guidance, you can do a number

of options like you talked about, TMDLs, the

watershed approach, revising the water

quality standards, those are all available.

MR. ETTINGER: But is simply leaving

the current standards in place an option

available?

THE WITNESS: It could be.

MR. ETTINGER: Under what

circumstances could it be?

THE WITNESS: You could issue a

variance where the current standard stays in

place, but a variance exists and the public

knows that the variance exists. You could do

that.

MR. ETTINGER: Thank you.

HEARING OFFICER TIPSORD: Mr. Harley,

you had a follow-up?

L.A. REPORTING (312) 419-9292

MR. HARLEY: It was very helpful the

way that you just testified about some of the

measures which an agency could take.

Is one of the measures that an

agency could take to develop a

technology-based standard for a source which

causes or contributes to a pollutant being in

waters in excess of a water quality standard?

THE WITNESS: There are

technology-based standards for, say,

industries, like a particular category of

industry, dry cleaner discharge or whatever.

In terms of municipal discharges

for combined sewer overflows, the nine

minimum controls are the technology-based

standards. And the long-term control plan is

the water quality based standard.

MR. HARLEY: You testified earlier

that one of the objectives of the regulation

of CSOs was to create a system in which

during wet weather events more water is

directed towards centralized treatment

facilities and less water overflows; is that

a correct characterization of your testimony?

L.A. REPORTING (312) 419-9292

THE WITNESS: No.

MR. HARLEY: Could you describe during

wet weather events what the role of CSOs are

in relationship to wastewater treatment

facilities?

THE WITNESS: When combined sewer

systems were constructed, they were

constructed with a common sewer to intercept

runoff from the streets as well as to accept

the dry weather sanitary sewage and the idea

was to get all of that to the treatment

plant, which in many ways helps improve water

quality because you're getting some of that

storm water runoff, which is not clean, and

you're treating it at the treatment plant.

So the combined sewer system, by

nature, is -- includes the sewers, the pump

stations and the operation of the treatment

plant during wet weather. I don't know if

that answers your question.

MR. HARLEY: The idea is to get all

that to the treatment plant?

THE WITNESS: The idea is to get as

much as you can to the treatment plant.

L.A. REPORTING (312) 419-9292

MR. HARLEY: And so if you have a

technology-based standard requiring

disinfection at that treatment plant and you

have a well-functioning combined sewer

system, then during wet weather events in a

good system more of that wet weather will be

directed toward a sewage treatment plant?

THE WITNESS: I think your question

had two parts.

MR. HARLEY: Please, I'd be interested

in your opinion on both.

THE WITNESS: Under the CSO policy,

there is a presumptive approach where one of

the objectives under that presumptive

approach to show that you believe that you

will -- you will attain water quality

standards is, say, 85 percent capture of the

combined sewage. So that -- so capture and

treatment at your treatment plant.

MS. WILLIAMS: Does the presumptive

approach also include limitation on a certain

number of overflows per year?

THE WITNESS: It's an option.

MS. WILLIAMS: Can you explain what

L.A. REPORTING (312) 419-9292

that option would be?

THE WITNESS: Well, there's basically

three options under the presumptive air

approach. There's 85 percent capture of the

volume of combined sewage, there's 85 percent

capture of the mass loading of a pollutant

and then there is four to six overflows per

year plus an additional few at the agency's

discretion.

But the permittee is supposed to

evaluate a range of alternatives. And in

some communities we found that in terms of

water quality impacts, that that range may be

higher than four to six overflows per year.

MS. WILLIAMS: Are you familiar with

what's relied on in the District's long-term

control plan under the presumptive approach?

THE WITNESS: No.

MS. WILLIAMS: Did you hear me?

HEARING OFFICER TIPSORD: Yes, barely.

MS. WILLIAMS: So you don't know? You

don't know if they have an approved long-term

control plan and what approach they used?

THE WITNESS: It's my understanding in

L.A. REPORTING (312) 419-9292

the mid 1990s that TARP, the Tunnel and

Reservoir Project, was approved as a

long-term control plan.

MS. WILLIAMS: And you're not aware if

that approval was based on a number of

overflows per year?

THE WITNESS: I am not.

MS. WILLIAMS: Question 16 -- let me

know when you're ready. Are you ready?

THE WITNESS: (Witness nodding.)

MS. WILLIAMS: Page 6, Paragraph 2 of

your testimony states, IEPA did not document

that it considered the need to establish

realistic attainable targets for wet weather

conditions in its proposed rulemaking.

Can you tell me where

documentation of this information is

required?

THE WITNESS: That's a legal question

that I can't answer.

MS. WILLIAMS: Okay.

THE WITNESS: But I would say that,

you know, if you're going to do a UAA, the

purpose of doing that UAA is to establish the

L.A. REPORTING (312) 419-9292

highest attainable use. And if you know that

you can't achieve that use during wet

weather, then you should consider that.

MS. WILLIAMS: Can you repeat that

part, "if you know"? If you want the court

reporter to read it back, I can try that,

too.

THE WITNESS: If you know that the

proposed use is not attainable under wet

weather conditions, then you need to consider

that when you establish what the criteria

should be and the designated use should be.

MR. HARLEY: May I ask a question?

MS. WILLIAMS: Yes.

MR. HARLEY: If there is a wet weather

event but there is no CSO overflow, why

should there be a wet weather exemption

during that period?

THE WITNESS: Because of the unique

nature of the waterways where it's used for

flood control and conveyance of a lot of the

city's storm water to prevent flooding, such

as occurred with Ike, you might need to

consider wet weather events whether or not

L.A. REPORTING (312) 419-9292

there are CSOs.

MR. HARLEY: Even if all of the

precipitation derived from that wet weather

event were successfully confined within the

system without an overflow, you would still

need a wet weather exemption.

THE WITNESS: That's not what I'm

saying.

MR. HARLEY: Okay.

MS. WILLIAMS: Ms. Nemura, have you

reviewed the Chicago Area Waterway System UAA

document, it's Attachment B to the Agency's

Statement of Reasons?

THE WITNESS: Yes.

MS. WILLIAMS: Can you tell us whether

your company bid on the contract for that

project?

THE WITNESS: I don't know.

MS. WILLIAMS: You don't know?

MR. ANDES: Is there evidence you're

planning to produce on that?

MS. WILLIAMS: I want to get at a

specific point, which is what would you have

done differently had you received a contract

L.A. REPORTING (312) 419-9292

for the Chicago Area Waterway System UAA

study? I think that's a fair question.

That's the only point I'm trying to get at by

pointing this out. So if you can answer the

second question, we can skip --

MR. ANDES: Are you pointing something

out?

MS. WILLIAMS: What?

MR. ANDES: Are you pointing something

out?

HEARING OFFICER TIPSORD: I think

there's a question on the table and I don't

think that she -- I don't think she said,

your company did, didn't they? She asked if

her company did. I don't think she's

offering evidence in that question.

And I think the question now is

you've reviewed the UAA, what would you have

done differently. Irregardless of whether or

not you got a contract, what would you have

done differently under the UAA?

THE WITNESS: Given that my testimony

is directed at the appropriateness of wet

weather standards in this situation, I'd like

L.A. REPORTING (312) 419-9292

to limit my answer to that.

MS. WILLIAMS: That's fine.

THE WITNESS: Okay. I would have

ensured that there was attention given in the

use attainability analysis that could have

been used in the formulation of an

appropriate wet weather water quality

standard for this system.

MS. WILLIAMS: When you say attention,

can you be more specific?

THE WITNESS: I would have

specifically tried to evaluate how conditions

in the waterways were different under wet

weather conditions and what the factors were

that either -- that prevented the default

recreational uses from being attained.

MS. WILLIAMS: Can you just explain

for everyone else what you mean by default

recreational uses?

THE WITNESS: Default recreational use

is how we end up in the situation we're in

where we need to talk about wet weather

standards. It's the presumption that either

primary contact recreation -- which I think

L.A. REPORTING (312) 419-9292

the use attainability analysis indicated that

there was stakeholder agreement that primary

contact recreation was not appropriate.

So in this case, the default

recreational use might be some sort of

secondary contact recreation or some sort of

class of secondary contact recreation.

MS. WILLIAMS: Based on stakeholder

agreement, the default would change?

THE WITNESS: What I'm saying is

that -- what I'm saying is when you look at

standards and designated uses, the

presumption is generally if we agree that

this is an appropriate use, the presumption

is typically we can attain that use under all

conditions.

Combined sewer overflows and other

wet weather discharges as well as other

factors can make that use not attainable

under certain conditions. And so when I say

a default use, I'm referring to the broad

applicability of that use everywhere and all

the time.

MS. WILLIAMS: Is another way -- I

L.A. REPORTING (312) 419-9292

believe the way the Agency has tried to use

the terminology for what I think is the same

concept, Clean Water Act goal, recreational

use; would you say that terminology is the

same as you're using default use?

THE WITNESS: (Witness shaking head.)

MS. WILLIAMS: No?

THE WITNESS: No, I'm not.

MS. WILLIAMS: Then --

THE WITNESS: What I'm talking about

is when I say default, I mean, you know, can

you achieve whatever use you're designating

everywhere all the time? That's what I'm

referring to as default.

And what I'm saying in this case,

during the UAA process, you know, it was

agreed that primary contact recreation was

not the use that was going to be considered.

MS. WILLIAMS: So you don't think the

default use in the CAWS UAA was primary

contact?

THE WITNESS: I'm not saying that.

MS. WILLIAMS: You think -- would you

say the reverse, the default use in the CAWS

L.A. REPORTING (312) 419-9292

UAA was primary contact?

THE WITNESS: No.

MS. WILLIAMS: What was the default

use then?

THE WITNESS: I'm not saying that the

UAA established a default use. I'm using the

term default to refer to whatever use that

was considered to be attainable. Under the

UAA process, there was the presumption that

use would apply everywhere all the time.

MR. ANDES: So you're not using --

sometimes the term default is it construed to

mean the fishable, swimmable uses under the

water act; you are not using default in a

that way?

THE WITNESS: No.

MS. WILLIAMS: I'm glad Fred agrees

with me that sometimes it's used that way.

MR. ANDES: It is. She wasn't doing

it.

MS. WILLIAMS: I guess it's time to

get into some of the other states that you've

talked about in your testimony.

Question 17 is targeted at a quote

L.A. REPORTING (312) 419-9292

about Indiana. You testified that Indiana

allows for temporary suspension of the

recreational uses if CSO discharges are in

accordance with an approved long-term control

plan and a UAA.

The first part of the question

asks for the citations, which we did get

citations yesterday as Exhibit 117. And I

reviewed what you provided and it appears to

me that the citations provided under Indiana

are just generally the water quality

standards and permitting requirements under

their rules; would you agree with that?

THE WITNESS: Right. What happened

was that under Indiana's process they

established rules that establish a process

under which the state will change the water

quality standards for CSO communities when

they submit a long-term control plan and a

UAA.

MS. WILLIAMS: Okay. Can you provide

any more specific information about any

existing approved UAA long-term control plans

in Indiana that have been approved by Indiana

L.A. REPORTING (312) 419-9292

and US EPA at this point?

THE WITNESS: Many of the CSO

communities are in the process of completing

their long-term control plans and the UAAs.

Indianapolis is the first community that has

submitted a long-term control plan and a UAA

to the Indiana Department of Environmental

Management for approval. There is rulemaking

that is in the process of being done for

Indianapolis.

MR. ETTINGER: Excuse me, I have some

documents relating to those proceedings that

might be helpful to Ms. Williams and to the

witness. And I don't know whether I should

just mark them now or whether you would like

me to pass them out and let you look at them.

These are the specific rules and

other things that were, I believe, referenced

by Ms. Williams' question. How do you want

to handle that? I have questions on that,

too. Do you want to wait or do you want to

have the documents now?

HEARING OFFICER TIPSORD: If you think

they'll be helpful to answer the questions

L.A. REPORTING (312) 419-9292

now, we might as well go ahead and enter the

documents.

MR. ETTINGER: Okay. What are we up

to in terms of numbers?

HEARING OFFICER TIPSORD: 119, so

you're going to be number 120.

MR. ETTINGER: All right. 120 is a

March 17, 208 (sic) letter -- March 17, 2008

letter from Bruno Pigott to Tinka Hyde

regarding CSO rulemaking. What number did

you say these were?

MR. ANDES: That was 120.

HEARING OFFICER TIPSORD: Albert, if

you're going to hand out multiples, you need

to give them to me.

MR. ETTINGER: Yeah, why don't I give

them to you. 121 is a letter from Bharat

Mathur, acting regional administrator, to

Bruno Pigott dated June 9, 2008, approving

the Indiana submission.

And then that's probably enough

for now.

HEARING OFFICER TIPSORD: For the

record, if there's no objection, we will mark

L.A. REPORTING (312) 419-9292

as exhibit 120 the letter to Ms. Tinka Hyde

at US EPA from Bruno Pigott at Indiana

Department of Environmental Management as

Exhibit 120. Seeing none, that's

Exhibit 120.

And the two documents from Bharat

Mathur to Mr. Pigott dated June 9th, 2008,

will be marked as Exhibit 121, if there's no

objection. Seeing none, it's Exhibit 121.

MR. ANDES: I would just clarify for

the record that we had earlier agreed to

produce documents responsive to one of the

earlier requests to Ms. Nemura and those were

the documents we were going to produce. So

those were also responsive.

MS. WILLIAMS: All of them or which

ones?

MR. ANDES: I believe the issue was

regarding EPA's approval of the rulemaking in

Indiana. That was the document I was

planning to produce, which is now, I believe,

121.

MS. WILLIAMS: Thank you. Is there a

question pending?

L.A. REPORTING (312) 419-9292

HEARING OFFICER TIPSORD: No, I -- I'm

not sure actually.

MR. ANDES: I think Mr. Ettinger was

going toward a question maybe.

MR. ETTINGER: Well, actually,

Mr. Andes may have answered my question

inadvertently. Have you seen these documents

before?

THE WITNESS: Yes.

MR. ETTINGER: And are these the

submissions from the State of Indiana and the

rules enacted by the State of Indiana that

you were referring to in your prior

testimony?

THE WITNESS: Yes.

MR. ETTINGER: Okay. Now I'll let

Ms. Williams continue, if she wishes.

MS. WILLIAMS: That's fine. So is the

answer there are no -- Indiana doesn't have

any finalized water quality standard changes

under this provision that we're talking about

at this point?

THE WITNESS: Correct.

MS. WILLIAMS: And when you describe

L.A. REPORTING (312) 419-9292

in the quote that I read earlier, Indiana

allows for temporary suspension of

recreational uses if CSO discharges are in

accordance with an approved long-term control

plan and a UAA, please explain "in accordance

with an approved long-term control plan."

THE WITNESS: That means that you

develop your plan which says we're going to

undertake these specific projects over this

time period, and at the completion of those

projects that the system will be operated the

way the plan was written.

And that plan can change over

time. And then you're in -- once you've

implemented that, then you will be in

compliance with the water quality standards

because the water quality standards have been

modified to reflect what the target was in

the plan.

MS. WILLIAMS: So as we sit here today

would the discharges from the District's CSOs

be in accordance with the long-term control

plan as that term is used or would it have to

be fully implemented for the discharges to be

L.A. REPORTING (312) 419-9292

in accordance with the plan?

THE WITNESS: Well, I'm confused

because we're talking about Indiana and this

is Chicago.

MS. WILLIAMS: You talked about

Indiana in your testimony and, you're

correct, this is Chicago, I think. But I

don't know why you're confused.

THE WITNESS: But there's nothing in

Illinois' rules that apply to Chicago in

terms of wet weather and long-term control

plans.

MS. WILLIAMS: Right.

THE WITNESS: So I'm confused by your

question.

MS. WILLIAMS: Let's say that Indiana

took over Chicago, can you answer the

question then? How is that?

MR. ANDES: A very hypothetical

question.

THE WITNESS: If that were the case,

then the -- and I can't tell you what the

specifics are in Chicago's plan because I

haven't dealt with that.

L.A. REPORTING (312) 419-9292

MS. WILLIAMS: I understand.

THE WITNESS: But Chicago would

continue to construct projects to achieve

what the plan said was to be achieved.

And then under Indiana's rules, if

the both the long-term control plan and the

use attainability analysis, which would have

had I'd been hired to do it, included an

analysis of what would be attainable once the

plan was implemented, then Chicago would be

in compliance with Indiana's water quality

standards specific to the Chicago Area

Waterways. Because when Indiana changes

their rules, it's specific to that particular

CSO community, that CSO community's long-term

control plan and that CSO community -- or the

use attainability analysis which applies to

that water body.

MS. WILLIAMS: Do you have to be

finished taking the actions under your

long-term control plan for the discharges to

be considered in accordance with the plan?

Does that make sense?

THE WITNESS: Can you repeat the

L.A. REPORTING (312) 419-9292

question.

MS. WILLIAMS: I'm just trying to

understand the very basic point in the

terminology about whether you have to be

finished constructing, doing whatever you've

agreed to do in your long-term control plan

in order for the resulting discharges to be

in accordance with an approved plan?

THE WITNESS: You submit the long-term

control plan, you submit the UAA, you have

the change in the water quality standards

that specifically references the Chicago Area

Waterways. The long-term control plan has to

be fully implemented for those standards to

take effect.

As the community is building their

controls, that is all dealt with through

compliance schedules and the permit. So it's

all sort of one big package.

MS. WILLIAMS: And when you were

saying something about the plans change over

time, did you -- can you explain how that

would work in this context if the plan

changed?

L.A. REPORTING (312) 419-9292

THE WITNESS: Yeah. EPA did not --

US EPA did not intend for the long-term

control plan to necessarily be a static

document. There can be new technologies,

there can be more information that is learned

about how this system operates and what can

be done. And so a CSO community can update

its long-term control plan and then those

updates can be approved, as well.

MS. WILLIAMS: But they would have to

be approved, as well, if there was a change?

THE WITNESS: Yes.

MS. WILLIAMS: Okay.

MR. ETTINGER: Under the Indiana plan,

the CSO communities themselves do the UAAs;

is that correct?

THE WITNESS: Under -- there's no set

requirement that the community has to do the

UAA. The requirement is that the state has

to approve the UAA.

So the community could do the UAA

or the state could do the UAA under EPA's

guidance for developing long-term control

plans and reviewing and revising water

L.A. REPORTING (312) 419-9292

quality standards as appropriate.

Those two processes generally move

in parallel because much of the data that is

needed for both is gathered at the same time.

MR. ANDES: When you say both?

THE WITNESS: The long-term control

and the UAA.

MR. ETTINGER: I believe you

misunderstood my question. I wasn't asking

about the general federal regulations as to

who prepares the UAA. I was asking under the

scheme that Indiana has proposed and which

was approved by region five, it is the CSO

communities which are going to produce the

UAAs; is that true?

THE WITNESS: They prepare a document

that they submit that is then approved by the

state.

MR. ETTINGER: That's an important

clarification. So it's the communities

prepare the UAA proposal and then they submit

that to the state which then approves it or

disapproves it and then sends it to EPA; is

that correct?

L.A. REPORTING (312) 419-9292

THE WITNESS: Yes.

MR. ETTINGER: Thank you.

MS. WILLIAMS: Is there a limitation

in Indiana for how long following the rain

event the wet weather -- is there a

limitation in Indiana of how long following

the wet weather event the wet weather

standard or wet weather exemption can last?

THE WITNESS: The rules allow for the

period where the recreational criteria don't

apply to be up to four days.

MS. WILLIAMS: Four days would be the

max?

THE WITNESS: It will vary community

by community.

MS. WILLIAMS: And does it vary based

on the specifics in the long-term control

plan in the UAA or could it be different

depending on the rain event or what would be

the factors that would cause the number of

days to vary community by community?

THE WITNESS: Well, each -- the CSO

policy and subsequent rules that have been

established recognize that CSO problems are

L.A. REPORTING (312) 419-9292

very site specific.

So a particular community might

find that because of the nature of their

collection system, that if they are to apply

for the revision of the water quality

standards for some events, they would need

that full four days in analyzing the CSO

impacts for another community.

And LimnoTech has done this and

I've worked on those projects. It all

depends on the water body. So you might have

a community where they discharge a CSO and

the river is flowing fast enough that the

impacts of the CSO don't last more than, say,

24 hours.

So there might be, for that

community, the water quality standard might

say that when you have a CSO event, the

recreational criteria won't apply for

24 hours, for another community it might be

the full four days.

MS. WILLIAMS: I think you're getting

at the next point that I really want to

understand. How would that standard be

L.A. REPORTING (312) 419-9292

articulated? Would it be articulated as, you

know, this water shall protect for this use

except when this happens or this water shall

meet this numeric criteria except for when

this event happens?

THE WITNESS: Well, under Indiana's

water quality standards the recreational use

criteria from every CSO community is primary

contact recreation and it has associated

numeric criteria with it.

When the water quality standards

are changed for, say, the White River and

Fall Creek, which are the two water bodies

impacted by Indianapolis' water body

discharge, how the state chooses to revise

the water quality standards to allow that

will depend on the targets for CSO overflows

that Indianapolis has in their plan.

So if it's written to say, on

average, account for a reduction to, say, two

to four overflows per year, an option would

be to say, you know, for these CSO discharges

under this approved plan the water quality

standards -- the numeric criteria won't apply

L.A. REPORTING (312) 419-9292

for up to four days or up to two days as long

as those discharges are in accordance with

the long-term control plan.

MS. WILLIAMS: So it wouldn't

typically say something that describes the

recreation that (inaudible) --

THE COURT REPORTER: Should or

shouldn't?

MS. WILLIAMS: Should not. I'm sorry.

It wouldn't typically specifically lay out

recreation that shouldn't be occurring, it

would focus on the numeric criteria target;

does that sound right?

THE WITNESS: Yeah. The fact that you

can't achieve those recreational uses when

there are CSOs discharging are addressed in

the use attainability analysis.

MS. WILLIAMS: But it's not

specifically written into the regulation that

the department adopts? I'm really just

trying to get at the format. What does it

look like?

THE WITNESS: I don't know what it

looks like because Indiana hasn't

L.A. REPORTING (312) 419-9292

developed -- you know, fully developed the

rule for Indianapolis.

MS. WILLIAMS: But you would expect it

to look something like this water shall meet

this E. Coli standard or this fecal standard

except when the defined CSO condition

happens?

THE WITNESS: Right.

MS. WILLIAMS: And would it have an

alternative criteria for those situations or

would there be no criteria?

THE WITNESS: No.

MS. WILLIAMS: No?

THE WITNESS: No criteria.

MS. WILLIAMS: There would be just no

criteria?

HEARING OFFICER TIPSORD: Mr. Harley?

MR. HARLEY: Also, just in terms of

logistics of how this would work, if you're

operating a water treatment plant in

Indianapolis which typically disinfects;

during the period when you would have the CSO

event, would you just turn off your

disinfection equipment?

L.A. REPORTING (312) 419-9292

MR. ANDES: That would be illegal.

MR. HARLEY: So the facility would

still have to continue to disinfect even

though the ordinarily applicable fecal

coliform or E. Coli standard would not apply?

THE WITNESS: Yes. The NPDES permit

for Indianapolis' waste water treatment plant

requires disinfection. There's no -- that

doesn't have anything to do with the combined

sewer overflow discharge.

MS. WILLIAMS: Do you think under

Indiana's policy, a community that didn't

disinfect would be eligible for one of these

exceptions?

THE WITNESS: I don't see why not.

MS. WILLIAMS: Are you aware of any

that have tried to apply that don't

disinfect?

THE WITNESS: Well, in Indiana,

because all of the water bodies are

designated as primary contact recreation and

the water quality criteria that Indiana chose

to adopt to protect, you know, primary

contact recreation, it all requires

L.A. REPORTING (312) 419-9292

disinfection at waste water treatment plants.

MS. WILLIAMS: So everybody in Indiana

is already disinfecting?

THE WITNESS: (Inaudible.)

MS. WILLIAMS: Thank you.

THE COURT REPORTER: I didn't hear the

answer.

THE WITNESS: Yes.

MR. ANDES: Do we want to take a

break?

HEARING OFFICER TIPSORD: Are we done

with Indiana?

MS. WILLIAMS: I think I'm done with

Indiana.

HEARING OFFICER TIPSORD: Then let's

take a ten-minute break.

(Whereupon, after a short

break was had, the

following proceedings

were held accordingly.)

HEARING OFFICER TIPSORD:

Ms. Williams.

MS. WILLIAMS: Question 18 moves on to

Massachusetts and it states, you testify on

L.A. REPORTING (312) 419-9292

Page 7 that, quote, Massachusetts allows for

a partial use designation for recreational or

aquatic life uses with the UAA or a variance.

And you also quote the provision

as requiring that, quote, criteria may depart

from the criteria assigned to the class only

to the extent necessary to accommodate the

technology based treatment limitations of the

CSO or storm water discharges. Can you

explain what you mean by this?

THE WITNESS: My understanding of the

provision is that it means that if the

technology based treatment limitations of the

CSOs and the controls set forth in an

approved long-term control plan that are

based on the federal CSO policy or for storm

water best management practices of the

maximum extent practicable, that if those do

not result in the attainment of water quality

standards, then new criteria may be

established that results in attainment

following implementation of the long-term

control plan or the best management practice.

MS. WILLIAMS: Does it require a

L.A. REPORTING (312) 419-9292

specific new criteria?

THE WITNESS: It says it may be

established.

MS. WILLIAMS: And are there any

limitations on what those criteria can be,

how much they can vary from the designated

criteria?

THE WITNESS: I don't think there is

anything in the standards that specify

limitations on that.

MS. WILLIAMS: Do you know if this has

been done anywhere yet in Massachusetts?

THE WITNESS: Yes.

MS. WILLIAMS: And can you explain

that example?

THE WITNESS: For example, in Boston,

this approach was applied for the

Massachusetts Water Reclamation Authority.

MS. WILLIAMS: And did they go through

every stage of the process?

THE WITNESS: There's a long history

of what they went through. And for Boston

Harbor they adopted a CSO subcategory. And

for the Charles River they've issued

L.A. REPORTING (312) 419-9292

consecutive variances to get them through the

implementation of their long-term control

plan.

MS. WILLIAMS: So within Boston

there's an example of using each method?

THE WITNESS: Yes.

MS. WILLIAMS: And have those all been

approved by US EPA?

THE WITNESS: Yes.

MS. WILLIAMS: Do you know if there's

any kind of consent decree applicable there?

THE WITNESS: This has been

proceeding. As I said, it's a long history

going back to the decisions about the Deer

Island Treatment Plant, but it has been

occurring while MWRA has been part of the

consent decree.

MS. WILLIAMS: And is there anywhere

in your testimony or what we've been provided

so far with regard to citations that cites to

either Boston Harbor or the Charles River

documents?

THE WITNESS: I did provide the

citation for the water quality standards,

L.A. REPORTING (312) 419-9292

the --

MS. WILLIAMS: Right, the regulation.

THE WITNESS: Yeah. The record of the

development of the UAAs and other documents

associated with MWRA's discharges is

voluminous and I did not provide the specific

citations.

MS. WILLIAMS: Okay. Is it correct

that the Massachusetts regulation is limited

to uses that are not existing uses?

THE WITNESS: Well, under the Clean

Water Act, you cannot remove an existing use.

These are instances where the uses have been,

you know, changed, so I don't know how the

existing use issue applies.

MS. WILLIAMS: So let me see if this

is what you're saying. To the extent that

Massachusetts' regulations specifically

prohibit using the exemption alternative use

designation, whatever we're calling it, from

applying to existing uses, is it your

testimony that any state that was to use a

wet weather exemption would have to provide

that existing uses would continue to be

L.A. REPORTING (312) 419-9292

protected?

THE WITNESS: I was confused because

we covered the existing use issue with

respect to CSOs yesterday.

But in the Massachusetts case they

did determine that changing the uses was not

removing an existing use.

MS. WILLIAMS: What do you mean in the

Massachusetts case? Are you talking about in

the Boston case?

THE WITNESS: Yes.

MS. WILLIAMS: Okay. I'm asking much

more generally.

THE WITNESS: As well as in the water

quality standards they do have subcategories

of recreational uses that are specifically

designated as CSO impacted uses.

MS. WILLIAMS: Right.

THE WITNESS: So in their water

quality standards they are acknowledging that

establishing a CSO impacted use is not

removing an existing use.

MS. WILLIAMS: Okay. I don't see it

that way. Can you explain -- can you provide

L.A. REPORTING (312) 419-9292

a citation where they say that or what do you

mean by that?

I thought I saw it to say here's

an exemption that's available, here's an

alternative use designation that's available

only if you don't have an existing Clean

Water Act goal recreational use that you need

to protect.

THE WITNESS: Okay. As I said

yesterday, CSOs in this country existed

before 1975. There's no communities out

there that are building combined sewers

post-1975.

So the fact that you had a CSO

pre-1975 and that the recreational use was

established such that water quality was being

impacted by those CSOs, the concept of

existing uses when you go to apply for the

provisions in Massachusetts, the whole

existing use concept is irrelevant.

MS. WILLIAMS: I understand that's

your testimony and that we went over that

yesterday and I really didn't want to go back

over that today if I didn't have to.

L.A. REPORTING (312) 419-9292

But I thought you just testified

that it says that in the Massachusetts

regulations, that it says in the

Massachusetts regulations that CSOs are

recognized as existing uses. I know that's

probably not an accurate paraphrase of what

you just said.

But does it say that somewhere in

the Massachusetts regulations or does it just

say that you must -- existing uses and the

level of water quality necessary to protect

the existing uses shall be maintained and

protected?

THE WITNESS: What I said was the

water quality standards in Massachusetts,

they adopted a subcategory of recreational

uses that specifically recognizes that you

may have a CSO impacted recreational use.

Okay? That is in the water quality

standards.

MS. WILLIAMS: Okay.

THE WITNESS: I also said that because

EPA has -- US EPA has approved what occurred,

say, in Boston with the variances and with

L.A. REPORTING (312) 419-9292

the designation of a particular water body as

a Class B CSO use, that by that approval EPA

is saying that the state by granting the

special CSO class and the variance is not

removing an existing use.

MS. WILLIAMS: And I just wanted to

make sure it was clear that that was an

inference that we were taking from US EPA

approval from your understanding of the Clean

Water Act, not from the language of the

provision, correct?

THE WITNESS: Yes.

MS. WILLIAMS: Okay. That's all I

have about Massachusetts. Does anyone else

wants to ask about Massachusetts?

MR. ETTINGER: Well, I wanted to ask a

little bit about Massachusetts. What uses do

they have wet weather designations for, is it

aquatic, is it recreational, what do they

specify?

THE WITNESS: The way the

Massachusetts regulation has been applied has

been specifically directed at recreational

uses. But there's nothing within the

L.A. REPORTING (312) 419-9292

Massachusetts regulation that would prevent

development of a special category for aquatic

life uses that were impacted by CSOs or storm

water discharges.

MR. ETTINGER: So the Charles River

doesn't have a wet weather designation

pertaining to the dissolved oxygen levels or

does it?

THE WITNESS: The UAA was

specifically, if I recall correctly, directed

at recreational uses.

MR. ETTINGER: And so how did -- how

did they vary that on the basis of

recreational uses, was it a number of days

after a rainfall or how did it -- did they

specify their wet weather standard?

THE WITNESS: For the Class B waters,

I'm not aware that there was necessarily --

you're asking how the Class B CSO waters are

different than the Class B Waters?

MR. ETTINGER: No. My question is

really much simpler than that. You're

testifying that something was done in

Massachusetts that you're using relative to

L.A. REPORTING (312) 419-9292

your wet weather testimony here. I'm just

trying to ask what that thing was.

What have they done in Boston that

makes it possible to attain the standard that

wouldn't have been if they hadn't made this

allowance for wet weather conditions?

THE WITNESS: Well, they completed

their use attainability analysis. And I'm

not specific with the exact language in that

use attainability analysis.

But by granting the Class B CSO

category for, say, the Boston Harbor, there

was an acknowledgment that the standards

couldn't be met a certain percentage of the

time. And by acknowledging that it is a CSO

impacted water, then the standards reflect

that a certain percentage of the time you're

not going to be attaining the default Class B

criteria.

MR. ETTINGER: And the default Class B

criteria are specified using an E. Coli or

enterococci standard?

THE WITNESS: I'm not sure which

applies, but an indicator bacteria criterion.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: So there's an indicator

bacteria that applies to Boston Harbor most

of the time, but during wet weather

conditions they vary from that, they allow a

variance from that criteria?

THE WITNESS: They vary, yeah.

MR. ETTINGER: There's a distinction

that's being made there that I don't quite

understand. What happens during wet weather

to the criteria?

THE WITNESS: I don't understand that

question.

MR. ETTINGER: All I'm asking -- I'm

really not trying to be cute here. I'm just

asking what is it that they did that allows

the designated use to be different during wet

weather periods?

THE WITNESS: Well, in Massachusetts'

standards they say that we have these Class B

CSO criteria which recognizes that in

accordance with the UAA that the recreational

designated use and the associated criteria

don't apply during approved CSO events.

Okay?

L.A. REPORTING (312) 419-9292

On the Charles River it's

different, it was handled through variances.

So the use and the criteria remain in place,

but the discharges are not considered in

violation of those criteria because they have

a variance.

MR. ETTINGER: Okay. So do the sewage

treatment plants and the Charles River

normally disinfect or discharge into the

Charles River normally disinfect?

THE WITNESS: They do disinfect.

MR. ETTINGER: They do disinfect. And

so that -- the normal standard is applicable

for -- do you know what measurement they use

fecal or enterococci or E. Coli, they used

one of those indicators. You have to speak

rather than just nod your head.

THE WITNESS: I don't know.

MR. ETTINGER: You don't know?

THE WITNESS: They use an indicator.

MR. ETTINGER: Thank you. So those

indicators apply to the Charles River during

dry weather conditions; is that correct?

THE WITNESS: They apply all the time.

L.A. REPORTING (312) 419-9292

MR. ETTINGER: The criteria apply all

the time, but there's a variance applicable

to the CSOs?

THE WITNESS: Yes.

MR. ETTINGER: As to wet weather

periods?

THE WITNESS: Yes.

MR. ETTINGER: Does the variance also

apply to the sewage treatment plants?

THE WITNESS: No.

MR. RAO: Is this variance some kind

of a permanent relief or is it only during

the time the plan is being implemented?

THE WITNESS: It's during the plan

implementation. And the agreement that was

reached between US EPA, the Massachusetts

Department of Environmental Protection and

the Massachusetts Water Resources Authority

was that by a certain date MWRA will have

fully implemented its long-term control plan.

And it is at that point in time

Massachusetts' DEP may need to revisit the

UAA for the Charles River because there are

other sources that are impacting the Charles,

L.A. REPORTING (312) 419-9292

mainly municipal storm water.

And the distinction between the

Charles and the harbor was that for the

Charles River, they believe that the primary

contact recreation use will ultimately be

attained through implementation of MWRA's

long-term control plan and control on storm

water discharges.

MR. RAO: Thank you.

MR. ETTINGER: Do you know if

Massachusetts distinguishes between bathing

waters an non-bathing waters?

THE WITNESS: Their recreational

classifications are not entirely clear. When

I read these standards, the distinction --

they have two classes that are of interest in

the example of MWRA. These are Class B

waters which are supposed to be suitable for

primary contact recreation or secondary

contact recreation.

Massachusetts also has a Class A

which says shall be suitable for primary and

secondary contact recreation. But the

distinction between A and B seems to be

L.A. REPORTING (312) 419-9292

hinged on the public water supply use. Did

that answer your question?

MR. ETTINGER: If it's the best you

can do, I'm going to have to settle for it.

What was your role specifically

with regard to the work in Massachusetts?

THE WITNESS: None whatsoever.

MR. ETTINGER: So you're just -- your

firm and you did not work on Massachusetts,

you're just citing that as an example of some

place that something was done?

THE WITNESS: Right. I did not work

on Massachusetts. I can't say for sure that

our firm never worked on Massachusetts.

MR. ETTINGER: Okay. Thank you.

That's it for Massachusetts as far as I'm

concerned.

HEARING OFFICER TIPSORD: Mr. Harley,

I could tell by the look in your eye.

MR. HARLEY: Before we move on to

other states which are in EPA's questions,

first of all, I want to thank the District

for putting forward a witness who can talk

about what's going on in other states on some

L.A. REPORTING (312) 419-9292

of the same issues that we're dealing with

here.

I've often found that in

rulemaking activity good composers borrow and

great composers steal. And I think this

gives us a good opportunity to think about

how we might steal some ideas from other

states.

An with that as kind of a prelude

to my question, my question is as a District

witness of the different states that you've

reviewed as part of preparing your pre-filed

testimony, is there one that you're

recommending as being the best basis for what

we might do in Illinois?

THE WITNESS: I wish I could. The

Chicago Area Waterways is very unique given

its operation as, you know, storm water

conveyance and flood control and all of that.

The other issue, as I said

earlier, has to deal with the distinct

conditions between dry weather and wet

weather. And I'm currently working for a

community in a state where this hasn't -- let

L.A. REPORTING (312) 419-9292

me back up.

In these other states the waste

water treatment plants disinfect. So the

issue about dry weather compliance and what

the appropriate dry weather use and

associated criteria has been dealt with in

other ways.

The waterways -- so when the

states have looked at, you know, how do we

craft a wet weather exemption, they haven't

had to deal with that issue.

In this example you have a unique

situation where the stakeholders, you know,

have agreed that the waterways should not be

used for primary contact recreation. So the

question becomes, well, what do we do under

dry weather conditions?

And the problem that we have is

that we have an incomplete use attainability

analysis because more information is being

generated to deal with what is the

appropriate criteria to protect for a

designated use that is more in line with

secondary contact recreation. We don't have

L.A. REPORTING (312) 419-9292

criteria for that and we need criteria for

that.

There also -- we also have the

challenge that even though the UAA was done,

and I would have done it differently, we

don't have stakeholder consensus. And

LimnoTech has worked on research on doing use

attainability analysis where stakeholder

consensus is important.

And we also have some of the best

experts in the country that have tried to

assist the District with, well, if you were

going to adopt the criteria, what should that

look like.

And the other thing we have is we

have US EPA doing a lot of research and now,

with the settlement of the Beach Act,

acknowledging that they will consider other

research across the country. So everything

is in flux.

And so my professional opinion

based on my experience is that more time is

needed to sort through all of these issues.

So I agree that you have the

L.A. REPORTING (312) 419-9292

benefit of drawing upon these other examples,

but you also have to appreciate the unique

situation that we have for the waterways here

in Chicago.

MR. HARLEY: Mindful of the fact that

the thing is upon us and that despite the

fact that there are many moving parts, as I'm

sure there were in Indiana, as I'm sure there

were in Massachusetts, California and Maine,

the thing is upon us; is there any one of the

state programs that you've identified or

programs by units of local government that

you think represents the best practice or the

best standard that is presently available?

THE WITNESS: No. I -- you have to

look at all of the options and all of the

factors affecting the decision.

MS. WILLIAMS: Ms. Nemura, can you

explain for us a little bit about the scope

of your retainment by the District in this

regard?

MR. ANDES: I'm sorry?

MS. WILLIAMS: Have you been retained

to give a recommendation about what the

L.A. REPORTING (312) 419-9292

appropriate uses should be?

THE WITNESS: No.

MS. WILLIAMS: What have you been

retained to do? What has LimnoTech been

retain by the District to do?

THE WITNESS: In this instance?

MS. WILLIAMS: In general, actually,

as far as you're aware in any contracts that

you currently have pending with the District.

THE WITNESS: We are providing support

on the testimony and we are conducting a

habitat study of the waterways and we are

also assisting the District in evaluating the

integration of various technologies on what

could be achieved in terms of meeting any

future proposed dissolved oxygen criteria.

MS. WILLIAMS: Thank you.

MR. ETTINGER: Can I follow-up on

that? First of all, I want to make a

statement which is just I don't want to sit

here and have you give that testimony and

have no mention made if there was ever a

consensus in the stakeholder process that

none of the water would be designated primary

L.A. REPORTING (312) 419-9292

contact, that's hereby withdrawn.

Second, my question is have you

specifically studied the cost of controlling

CSOs in the Chicago Area Waterway System?

THE WITNESS: I participated in a

development of a technical memorandum that

evaluated the cost of disinfecting -- the

feasibility and cost at a certain level of

disinfecting combined sewer overflows.

MR. ANDES: I believe that memorandum

has been submitted for the record.

MR. ETTINGER: Have you specifically

considered whether higher levels of control

are -- I forgot the term of the regulation,

but whether it would cause widespread

economic socio-omic (sic) disruption in the

area or whatever the term is?

THE WITNESS: No.

MR. ETTINGER: You have not? You

mentioned as one of the reasons why you were

hesitant to apply other models from other

states to the Chicago Area Waterway System

situation between primary and secondary

contact. Have other states that you've

L.A. REPORTING (312) 419-9292

worked on adopted standards for secondary

contact or boating use of waters?

THE WITNESS: Many of the states where

I've worked on projects have secondary

contact recreation uses and associated

criteria with those uses.

MR. ETTINGER: What criteria are used?

THE WITNESS: It varies. It's

typically between five to ten times the

primary contact criterion.

MR. ETTINGER: What specific states or

projects have you used -- have you

participated in in which they used such

criteria?

THE WITNESS: The projects that I've

worked on in Ohio have dealt with some

secondary contact recreation criteria.

There are numeric criteria, but

the basis for those criteria is not -- it was

based on more of a policy decision by, you

know, various committees responsible for

assessing uses and setting criteria.

MR. ETTINGER: Okay. So they were in

Ohio. Were there others in addition to Ohio

L.A. REPORTING (312) 419-9292

in which they adopted such criteria based on

policy consideration or anything else?

THE WITNESS: Yeah, Missouri.

MR. ETTINGER: Missouri. And what did

they use, E. Coli, enterococci; do you

recall?

THE WITNESS: They used E. Coli.

MR. ETTINGER: E. Coli. And they used

a multiple of the primary use E. Coli

standard?

THE WITNESS: I'm not sure how they

derived it. But in Missouri the whole body

contact A criterion is 126 and the secondary

contact recreation criterion is 1,134.

MR. ETTINGER: Okay.

THE WITNESS: Approximately ten times.

MR. ETTINGER: Would you happen to

know the numbers for Ohio?

THE WITNESS: I believe it's 2,000

fecal coliform.

MR. ETTINGER: Ohio uses fecal rather

than E. Coli?

THE WITNESS: They use both.

MR. ETTINGER: Now when we say Ohio,

L.A. REPORTING (312) 419-9292

do you mean the whole state of Ohio or some

cities in Ohio or ORSANCO?

THE WITNESS: This is specifically

related to water bodies within Ohio because

it's in Ohio's water quality standards.

The Ohio River, which the criteria

is set by ORSANCO are -- do not have

secondary contact recreation.

MR. ETTINGER: Okay. Are there any

other states that have secondary contact

criteria that you have worked on other than

Missouri and Ohio?

THE WITNESS: I worked in so many

states, I can't recall.

MR. ETTINGER: Okay.

MR. ANDES: If I can follow-up on

that? I wonder if you could talk a little

bit about what's the current state of the

science in terms of evaluation of the

technical basis for secondary contact

criteria?

THE WITNESS: There's agreement that

this five to ten times which states have

adopted and EPA has approved, that that is --

L.A. REPORTING (312) 419-9292

has no epidemiological basis.

The study -- there's ongoing

research that will provide that information

and you might be able to supplement it with

information from across the world. But I

haven't particularly taken it upon myself to

study how to develop secondary contact

recreation criteria. I haven't needed to do

that.

MR. ETTINGER: Have you studied the

basis for primary contact criteria?

THE WITNESS: I am familiar with the

history of the development of that criteria.

MR. ETTINGER: Do you believe the

primary contact criteria are scientifically

valid?

THE WITNESS: That is part -- that is

why EPA is redoing or coming up with new

recreational use criteria. The E. Coli

criteria and the enterococci criteria that

came out with the 1986 criteria, some of

those studies, the epidemiological data was

statistically insignificant.

MR. ETTINGER: Is there any valid

L.A. REPORTING (312) 419-9292

criteria for primary contact anywhere in the

country?

THE WITNESS: Criteria that are out

are -- that have been adopted and have been

approved is what's being used. And EPA

recognizes the deficiencies associated with

the existing criteria which is why they are

reevaluating.

MR. ETTINGER: I didn't ask what EPA

was doing. I'm asking what you are doing.

Do you believe that any of the

primary contact criteria being used anywhere

in the country are valid?

THE WITNESS: They're valid in so much

as they are in the water quality standards

and that is what we have to apply when we

make decisions about the acceptable amount of

bacteria that is allowed in the waters. I

mean, it is what it is.

MR. ETTINGER: I understand that that

is what it is in the sense of the law. I'm

saying are they scientifically valid?

THE WITNESS: Okay. The current

criteria, which are what they are, is what we

L.A. REPORTING (312) 419-9292

have to use. Can they be improved, should

they be improved, yes.

So in my 24 years of experience --

and I started out at the Virginia Water

Control Board -- you apply what is in the

standards. And if -- and that's what you do.

So it's not my place to address

whether those criteria are valid or not.

That's not a term that I deal with.

MR. ETTINGER: Okay. So you're just

following orders. Whatever the criteria are

that EPA has then adopted, that's what you

apply?

THE WITNESS: Whatever is in the state

water quality standards is what I have to use

in my job.

MR. ETTINGER: Okay. But it's no part

of your job to consider whether the numbers

that are in the state water quality standards

are scientifically valid for protecting uses?

THE WITNESS: It is my job if a

criteria -- if a criteria that's in the

standards is not appropriate for the water

body, okay, because of site specific

L.A. REPORTING (312) 419-9292

conditions, that is my job to assess whether

that criteria should apply to that particular

water body.

In this case I can't offer what an

alternative numeric criteria would be to

protect a primary contact recreation use

because I don't have any science upon which

to base that recommendation. That science is

in the process of being developed. That's

why EPA and others are conducting all this

epidemiological research.

MR. ETTINGER: Okay.

MR. ANDES: Next state?

MS. WILLIAMS: Question 19, you state

on Page 7 that, quote, Maine allows for a CSO

subcategory where recreational and aquatic

life uses may be temporarily suspended. For

how long may the use be suspended?

THE WITNESS: That depends on an

individual community. There's no -- nothing

in the standards that specify that it be for

a certain period of time.

MS. WILLIAMS: Okay. The standards,

do they specify that it needs to be temporary

L.A. REPORTING (312) 419-9292

as you've stated here or may it be permanent?

MR. ANDES: Are you talking about

temporary in terms of duration of a rain

event or a number of years?

MS. WILLIAMS: I'm talking about

temporarily as it's used in her statement.

THE WITNESS: The standards

specifically say they -- the standards

specifically allow for temporary removal of

designated uses, which involves use

attainability analysis and creation of

subcategories of uses for combined sewer

overflows.

MS. WILLIAMS: So how do you --

THE WITNESS: The regulations say that

the board may temporarily remove designated

uses that are not existing uses and create a

temporary combined sewer overflow category

referred to as a CSO category.

MS. WILLIAMS: It sounds like it uses

temporary a couple of different times and

maybe in different ways. Do we know if it

defines the word temporary anywhere?

THE WITNESS: I do not believe it

L.A. REPORTING (312) 419-9292

defines the word temporary.

MR. ANDES: We did provide the

citations to these regulations.

MS. WILLIAMS: We did or we will?

MR. ANDES: We did. I believe they're

on the list.

MS. WILLIAMS: I didn't -- I was

trying to hear --

THE WITNESS: The concept was that you

would have a CSO community. Under the

long-term control plan, you would define the

area of the water body that is affected by

the combined sewer overflows and what those

impacts looked like, that the community would

do a long-term control plan and there would

be a UAA and you could sort of define the

area that is affected by the CSOs that would

remain under the long-term control plan and

sort of how long those impacts would last.

And then that would get -- that

would be incorporated into the decision about

what this temporary CSO class would look

like.

MS. WILLIAMS: And does Maine

L.A. REPORTING (312) 419-9292

require -- with regard to the physical area

of impact, does Maine require that you define

the smallest possible area?

THE WITNESS: It does say CSO

subcategory uses are suspended only in the

smallest area possible for the shortest

duration practicable.

MS. WILLIAMS: And do you agree that

these two concepts -- these two sort of

independent but combined concepts would be an

important component of a similar regulation

in other states?

THE WITNESS: It depends on how the

state decides to address their own standards.

MS. WILLIAMS: So you don't think it

would be important to address?

MR. ANDES: Are you asking whether

that precise language would be needed in

another state?

MS. WILLIAMS: No, the concept of

keeping any exemptions or alternative use

designations confined to the smallest area

and the shortest time necessary.

THE WITNESS: Because CSO impacts are

L.A. REPORTING (312) 419-9292

so site specific, in some situations that may

be important.

For example, if you have a

community that has primary contact recreation

that occurs up and down the river, you know,

most of the recreation season, then that

concept might be really important.

In another community where the

water bodies are inaccessible or are unsafe,

that particular language may not be

important.

MS. WILLIAMS: And I think you already

answered my question through reading the

language, but the language does also, as in

Massachusetts, limit its applicability to

uses that are not existing uses, correct?

THE WITNESS: You can't remove an

existing use.

MS. WILLIAMS: Yes. I mean, the

answer is yes then to my question?

THE WITNESS: Yes.

MS. WILLIAMS: Have any use changes

been approved by the Citizen Board and US EPA

under this provision in Maine?

L.A. REPORTING (312) 419-9292

100

THE WITNESS: Not to my knowledge.

MS. WILLIAMS: Do you know whether

there's any requirement to go to the

legislature as well in Maine? Do you

understand that piece of it?

THE WITNESS: I cannot specifically

speak to that.

MS. WILLIAMS: So you're not sure if

maybe part of the temporary approval refers

to submitting it to the legislature for

permanent approval? And that's a question I

don't know.

THE WITNESS: Well, if it's temporary,

how can it be permanent?

MR. ANDES: I think the language is

what it is. Are you asking her to read it

and summarize it?

MS. WILLIAMS: No.

MR. ANDES: Okay.

MS. WILLIAMS: I was asking her if she

knows if the legislature also has to approve

any of the changes made in Maine?

THE WITNESS: I don't know.

MS. WILLIAMS: If she doesn't know,

L.A. REPORTING (312) 419-9292

101

that's fine.

Is anyone else interested in

Maine? I went there for vacation this

summer. It's very nice.

I'm skipping question 20 because

that seems clearly aquatic-life based.

Question 21 I don't think refers

to a specific state. You testify on Page 8

that several UAAs have also been conducted

that allow for suspension of recreational

uses due to wet weather discharges. I guess

I'll ask the question first. Was this

statement referring to specific states or

just generally nationwide?

THE WITNESS: General.

MS. WILLIAMS: How many UAAs like this

are you aware of and how many have resulted

in standards changes approved by US EPA?

THE WITNESS: Well we have 39 water

bodies in California, and Indianapolis,

Boston.

MS. WILLIAMS: Were those all the ones

you can think of?

THE WITNESS: Yes.

L.A. REPORTING (312) 419-9292

102

MR. ANDES: You're talking there in

terms of UAAs that have been done. Do you

understand that a number of others are being

prepared in various states around the

country?

THE WITNESS: Yes.

MS. WILLIAMS: The next piece of this

question asks how long are the recreational

uses suspended for in these UAAs? I don't

know, we may have covered some of this

already.

THE WITNESS: Well, as I've said

previously, it depends on the -- as it

should, the unique nature of the water body

that is being evaluated in the use

attainability analysis.

MS. WILLIAMS: Are you aware of any

UAAs in that list that you've given that

allow for the suspension of aquatic life

uses?

THE WITNESS: No. But there's nothing

in EPA's guidance that would prohibit a

community from pursuing that for aquatic

life.

L.A. REPORTING (312) 419-9292

103

MS. WILLIAMS: So we would be breaking

new ground in Illinois as far as you know?

THE WITNESS: Not necessarily. There

have been lots of UAAs that have been done

for aquatic life uses. And although those

may not have been specifically done for wet

weather discharges, there certainly is

approaches and concepts that have been used

in those UAAs that Illinois could -- what was

the composer analogy?

MS. WILLIAMS: Steal?

THE WITNESS: Steal or borrow from.

MS. WILLIAMS: I have more questions

on this, but I think it makes sense to defer

them to the next time we see you again.

Question 22 asks do you agree that

states are required by the Clean Water Act to

designate existing uses as attainable uses?

I think you previously said yes to this

question; is that correct?

THE WITNESS: I'm sorry, I didn't

understand your question.

MS. WILLIAMS: Let me ask again. Do

you agree that states are required by the

L.A. REPORTING (312) 419-9292

104

Clean Water Act to designate existing uses as

attainable uses? It's just a yes or no

question and I think you've already answered

it yes but...

THE WITNESS: Well, existing uses are

required to be part of the designated uses

and the existing use is as in how it's

defined in the Clean Water Act.

MS. WILLIAMS: Okay.

MR. ETTINGER: You haven't personally

studied how the CSOs might have varied in the

Chicago Area Waterways since 1975?

THE WITNESS: How the CSOs might have

varied? What do you mean by --

MR. ETTINGER: Is it possible, for

example, that some portion of the Chicago

Area Waterway System was getting different

CSO impacts in 1975 from what it's getting

now?

THE WITNESS: I haven't studied that.

MR. ETTINGER: Thank you.

MS. WILLIAMS: Question 23 says are

you testifying to the contents of the Alp --

Mr. Alp report attached to your testimony,

L.A. REPORTING (312) 419-9292

105

and if not, who is the best witness to ask

about that report?

THE WITNESS: I am not testifying to

the contents of Dr. Alp's report.

Dr. Melching would be the best to testify.

MR. ANDES: Do we want to take a break

sometime soon?

MS. WILLIAMS: My watch broke again so

I don't know what time it is.

HEARING OFFICER TIPSORD: It's a

little after 12:00. We've only been back at

it for about a 50 minutes, but, yeah,

let's -- how many more questions do you have?

MS. WILLIAMS: I don't have a ton, but

it may take another 20 minutes or so.

HEARING OFFICER TIPSORD: Let's go

ahead 20 minutes. We can finish with you

before lunch then.

MS. WILLIAMS: Okay. Let's just look

at question 24. I'm trying to figure out if

that's appropriate for you or Dr. Melching

and you can just tell me if you'd rather it

be deferred.

You testify on Page 2 of

L.A. REPORTING (312) 419-9292

106

Attachment 2 that defective CSO and pump

station dischargers can increase ambient

bacteria levels for three to five days.

Would you prefer I ask him about that?

THE WITNESS: No.

MS. WILLIAMS: Okay. How long are you

recommending that a wet weather recreational

use exemption last after a storm event?

THE WITNESS: I'm not making a

recommendation. Again, you have to look at

the unique characteristics of the water body,

the controls that can be put in place to make

any decision about the length of time.

MS. WILLIAMS: Do you know if it's

closer to three days, closer to five days?

Where does the -- the three to five days,

does that come from Dr. Melching's work?

THE WITNESS: Yes. That's a general

statement based on Model Alp, but maybe we

should refer to the chart.

MS. WILLIAMS: It's a general

statement, but it's specific to the CAWS,

right?

THE WITNESS: Correct.

L.A. REPORTING (312) 419-9292

107

MS. WILLIAMS: I'm sure we'll have

plenty of questions for him about this. I

don't think we need to get into this with

this witness.

MR. ANDES: I don't know if we have a

chart on that, but I don't know that we need

to get into it. We can certainly certain get

into more detail with Dr. Melching.

MS. WILLIAMS: The only question that

I have for this witness is just to explain

why she felt that the storm events -- why she

called them representative in her testimony?

What about them made them representative?

THE WITNESS: The water quality model

that Dr. Melching, Dr. Alp and others worked

on was simulated for periods in 1998, 1999,

2001 and 2002 for fecal coliform.

I picked two storms to try to keep

information concise. And the ones that I

selected were the two largest storms during

2001 and 2002. And I used those to show how

the system responded to large rainfall events

because that would provide a conservative

representation of the impact of the CSOs.

L.A. REPORTING (312) 419-9292

108

MS. WILLIAMS: So would you agree that

what they're representative of is worst case

conditions?

THE WITNESS: Worst case could mean a

lot of different things.

MS. WILLIAMS: But they weren't trying

to be representative of a typical storm?

THE WITNESS: I was trying to show if

you had a large volume of CSO discharge, what

would the maximum concentrations look like

and how long would it take for those to

decline.

MS. WILLIAMS: But you understand when

most people say representative, they mean to

say then that you picked the largest two?

THE WITNESS: They were representative

of how CSOs can impact the waterways.

MS. WILLIAMS: From a large storm

event, correct?

THE WITNESS: Right. That's generally

when CSO impacts are the worst.

MS. WILLIAMS: So you haven't picked a

worst case scenario? You wouldn't describe

it that way?

L.A. REPORTING (312) 419-9292

109

THE WITNESS: No.

HEARING OFFICER TIPSORD: You mean

like last week?

MS. WILLIAMS: Right. Yeah, I guess

can you just off the top of your head tell us

what the storm events were in terms of amount

of rainfall that you chose?

THE WITNESS: The July 25th, 2001

event was 2.45 inches of rain.

MS. WILLIAMS: Okay.

THE WITNESS: The August 2, 2001 event

was 3.58 inches of rain. How the combined

sewer system responds to a storm depends on

not only the total volume of rain, but the

duration of that rain event. So it varies

storm to storm.

MS. WILLIAMS: Question 26 asks do you

think a wet weather recreational exemption

would belong in the use designation itself or

in the water quality standard?

And in this question, by water

quality standard, I'm using that term as it's

commonly used in Illinois to refer to a

numeric criteria that protects the designated

L.A. REPORTING (312) 419-9292

110

use.

THE WITNESS: Well, because water

quality standards --

MS. WILLIAMS: I understand under the

federal system it has a definition.

In Illinois we often commonly use

the term water quality standard as an

substitute for a numeric criteria. So this

question is asking whether it belongs in the

use designation description or in the numeric

criteria?

THE WITNESS: It needs to be in both.

MS. WILLIAMS: Okay. Thank you.

Question 27, you testify that ORSANCO allows

for alternative criteria when a long-term

control plan and UAA is developed by the CSO

community and asks does this involve a change

in uses?

THE WITNESS: Yes. The standard reads

the approved long-term control plan and UAA

will identify the conditions at or above

which the contact recreation use and

associated bacteria criteria cannot be

achieved and will identify alternative

L.A. REPORTING (312) 419-9292

111

bacteria criteria that can be approached.

The alternative bacteria criteria shall apply

for the period during which conditions exist.

MS. WILLIAMS: Can you tell us what

the alternative criteria is?

THE WITNESS: The standards do not

specify what that alternative criteria are.

That would be based on the long-term control

planned and the UAA.

MS. WILLIAMS: So the standards don't

specify a number of above which it cannot

exceed?

THE WITNESS: We're talking about the

alternative criteria?

MS. WILLIAMS: Yes.

THE WITNESS: The standards -- the

language does not.

MS. WILLIAMS: I was thinking -- and I

could be wrong, so that's why I'm asking

you -- that it said the alternative criteria

can't exceed 2,000 fecal coliform per 100

milliliters; is that correct or no?

THE WITNESS: It shall not exceed

2,000 fecal coliform as a monthly geometric

L.A. REPORTING (312) 419-9292

112

mean for the protection of public water

supplies.

MS. WILLIAMS: And is the Ohio River

designated for public water supply

protection?

THE WITNESS: Yes.

MS. WILLIAMS: Okay. And this

provision hasn't been used yet, right? I

think you testified that it hasn't been used

yet?

THE WITNESS: Correct.

MS. WILLIAMS: Question 28 asks -- I'm

sorry, moving on to question 29 because

Question 28 is directed to aquatic life uses.

Question 29 you testify there are

examples in California of suspending

recreational uses during high flows and it

asks have any been completed and formally

approved?

THE WITNESS: Yes.

MS. WILLIAMS: Can you name them if

that's the easiest way? I know you referred

to 39.

THE WITNESS: There's 39 water bodies.

L.A. REPORTING (312) 419-9292

113

MS. WILLIAMS: Would all of those meet

this description, suspending recreational

uses during high flows, all 39?

THE WITNESS: Yes.

MS. WILLIAMS: Okay. Explain what you

mean by high flow suspension of recreational

uses for Ballona, B-A-L-L-O-N-A, Creek.

THE WITNESS: The suspension applies

under flow conditions where there's a half

inch of rainfall or more and it applies for

24 hours after the rainfall ceases.

MS. WILLIAMS: How long?

THE WITNESS: Twenty-four hours.

That's because the water bodies are very

flashy and quickly convey the storm water

flow after a rain event ends. So the rain

event ends and within 24 hours that water is

gone.

MS. WILLIAMS: Okay. And what are the

bacteria criteria that are applicable?

THE WITNESS: Specifically, I don't

know.

MS. WILLIAMS: And is this --

MR. ANDES: I'm sure we can provide

L.A. REPORTING (312) 419-9292

114

that information.

MS. WILLIAMS: That would be helpful.

THE WITNESS: Geometric mean E. Coli

126, fecal coliform geometric mean 200,

single sample maximum limits E. Coli of 576.

MS. WILLIAMS: And so those limits do

not apply for 24 hours after the high flow

event you described; is that your

understanding?

THE WITNESS: Correct.

MS. WILLIAMS: And is recreation

prohibited in Ballona Creek during these high

flow periods?

THE WITNESS: There is the -- there's

a policy in place that those -- that the

access to those water bodies in Ballona Creek

is prohibited because there's fences and

gates that are locked down.

MS. WILLIAMS: And who owns those

fences and gates?

THE WITNESS: I don't know.

MS. WILLIAMS: But it's not part of

the state regulations to prohibit the

recreational activity, that's a management

L.A. REPORTING (312) 419-9292

115

decision by the owner?

THE WITNESS: I can't --

MR. ANDES: By the owner of the creek?

MS. WILLIAMS: The owner of the access

points.

THE WITNESS: I can't testify to that.

MS. WILLIAMS: You don't know? Did

they look in Ballona Creek at whether

recreation was actually occurring during

these periods?

THE WITNESS: I believe they had

cameras installed to evaluate.

MS. WILLIAMS: Do you know what they

concluded?

THE WITNESS: I can't recall.

MS. WILLIAMS: So you don't know if

the cameras actually found people recreating

during the storm events and for 24 hours

after?

THE WITNESS: I can't recall. I'd

have to reread the UAA.

MS. WILLIAMS: Do you know if there's

a TMDL in place for this water body, as well?

THE WITNESS: I can't recall.

L.A. REPORTING (312) 419-9292

116

MS. WILLIAMS: I may be done, if you

can just give me a second.

(Brief pause.)

MS. WILLIAMS: Since I have no one

left to consult with, I must be done.

HEARING OFFICER TIPSORD: In that case

let's go ahead and take lunch. In one hour,

please.

(Whereupon, the hearing

of the above-entitled

cause was adjourned for

lunch, to be reconvened

at 1:20 p.m.)

L.A. REPORTING (312) 419-9292

117

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF WILL )

I, Tamara Manganiello, CSR, RPR, do hereby

5 certify that I reported in shorthand the proceedings

6 held in the foregoing cause, and that the foregoing

7 is a true, complete and correct transcript of the

8 proceedings as appears from my stenographic notes so

9 taken and transcribed under my personal direction.

______________________________

TAMARA MANGANIELLO, CSR, RPR

License No. 084-004560

SUBSCRIBED AND SWORN TO

20 before me this ____ day

of _______, A.D., 2008.

_______________________

22 Notary Public