1
1 STATE OF ILLINOIS)
2
)
3 COUNTY OF C O O K)
4 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
5
COUNTY DEPARTMENT - LAW DIVISION
6 IN THE MATTER OF:
)
7 WATER QUALITY STANDARDS AND
)
8 EFFLUENT LIMITATIONS FOR THE ) R08-9
9 CHICAGO AREA WATERWAY SYSTEM AND ) (Rulemaking -
10 THE LOWER DES PLAINES RIVER: ) Water)
11 PROPOSED AMENDMENTS TO 35 Ill. )
12 Adm. Code Parts 301, 302, 303 )
13 and 304.
)
14
15
16
TRANSCRIPT OF PROCEEDINGS had in the
17 above-entitled cause before Hearing Officer
18 Marie Tipsord, called by the Illinois Pollution
19 Control Board, pursuant to notice, taken before
20 Sharon Berkery, CSR, within and for the County of
21 Cook and State of Illinois, at the James R. Thompson
22 Center, 100 West Randolph Street, Room 9-040,
23 Chicago, Illinois, on the 31st day of January, A.D.,
24 2008, commencing at 9:00 a.m.
2
1 APPEARANCES:
2
3
ILLINOIS POLLUTION CONTROL BOARD:
4
Ms. Marie Tipsord, Hearing Officer
5
Ms. Alisa Liu, P.E., Environmental Scientist
6
Mr. Anand Rao, Senior Environmental Scientist
7
Mr. Tanner Girard, Acting Chairman
8
Mr. Nicholas Melas, Board Member
9
Mr. Thomas E. Johnson, Board Member;
10
11
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:
12
Ms. Stefanie Diers
13
Ms. Deborah Williams
14
Mr. Robert Sulski
15
Mr. Scott Twait
16
Mr. Roy Smogor
17
Mr. Howard Esaig;
18
19
THE NATURAL RESOURCE DEFENSE COUNSEL:
20
Ms. Ann Alexander;
21
22
23
24
3
1 APPEARANCES (cont'd.)
2
3
ENVIRONMENTAL LAW AND POLICY CENTER,
4
33 East Wacker Drive
5
Suite 1300
6
Chicago, Illinois 60601
7
312-795-3707
8
MR. ALBERT ETTINGER,
9
MS. JESSICA DEXTER;
10
appeared on behalf of ELPC, Prairie Rivers
11
Network, and Sierra Club;
12
13
FRANZETTI LAW FIRM, P.C.,
14
10 South LaSalle Street
15
Suite 3600
16
Chicago, Illinois 60603
17
312-251-5590
18
MS. SUSAN FRANZETTI,
19
appeared on behalf of Midwest
20
Generation, L.L.C.;
21
22
23
24
4
1 APPEARANCES (cont'd.):
2
3
HODGE DWYER AND ZEMAN,
4
3150 Roland Avenue
5
Post Office Box 5776
6
Springfield, Illinois 62705
7
217-523-4900
8
MR. THOMAS SAFLEY,
9
appeared on behalf of the Illinois
10
Environmental Regulatory Group;
11
12
SONNENSCHEIN NATH AND ROSENTHAL, LLP,
13
7800 Sears Tower
14
Chicago, Illinois 60606
15
312-876-7934
16
MR. JEFFREY FORT,
17
appeared on behalf of Citgo;
18
19
20
21
22
23
24
5
1 APPEARANCES (cont'd.):
2
3
MAYER BROWN LLP,
4
71 South Wacker Drive
5
Chicago, Illinois 60606
6
312-782-0600
7
MR. THOMAS W. DIMOND,
8
appeared on behalf of Stepan and Company;
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23 REPORTED BY: SHARON BERKERY, C.S.R.
24
CERTIFICATE NO. 84-4327.
6
1
HEARING OFFICER: Good morning. My
2
name is Marie Tipsord, and I've been
3
appointed by the Board to serve as Hearing
4
Officer in this procedure entitled Water
5
Quality Standards and Effluent Limitations
6
For the Chicago Waterway System and Lower
7
Des Plaines River, proposed amendments to
8
35 Ill. Admin Code 301, 302, 303 and 304.
9
Docket No. 408-9.
10
To my immediate right is
11
Dr. Tanner Girard, the acting chairman and
12
lead board member assigned to this matter.
13
Also present, to his immediate right, is
14
Nicholas Melas and Thomas Johnson at the very
15
end, two of our board members. To my
16
immediate left is Anand Rao, and to his left
17
is Alisa Liu from our technical staff.
18
I want to remind all the witnesses
19
they are still sworn in, and we are
20
continuing this morning with Midwest
21
Generation, LLC's questions for
22
Mr. Chris Yoder. And we'll discuss any --
23
we'll discuss how we proceed if Midwest Gen
24
gets in today.
7
1
And again, I will remind everyone
2
they're sworn in and let's begin.
3
CHRIS YODER,
4 called as a witness herein, having been previously
5 duly sworn and having testified, was examined and
6 testified further as follows:
7
EXAMINATION (Resumed)
8 BY MS. FRANZETTI:
9
Q. Good morning, Mr. Yoder.
10
A. Good morning.
11
Q. With respect to where we are
12 beginning, it's in Section H of my questions. The
13 topic is Extrapolation of Thermal End Points. And
14 Attachment 3 to your prefiled testimony deals with
15 that subject matter.
16
Just preliminarily, before I get
17 to the prefiled Question No. 1, I believe you
18 mentioned yesterday the topic of extrapolation in
19 your testimony, but could you briefly describe
20 when -- what is extrapolation and when do you use it
21 as you are implementing your ranking approach?
22
A. Extrapolation is used to fill in what
23 is missing, one of the missing endpoints of the four
24 endpoints that we talked about yesterday, that's
8
1 produced by the model. And it's just the way the
2 science is, not every study produces every endpoint.
3
Some produce only part of all the
4 possible experimental endpoints. That's just sort
5 of the lay of the land.
6
So to -- we initiated this
7 procedure to make the model more equitable and to
8 what we thought functioned better. And so, it's --
9 but it's based on, sort of, the average differences
10 between different groups of fishes and families of
11 fishes, the average differences between the optimum
12 and the upper avoidance and some of the other
13 experimental measured endpoints, like the
14 temperatures and so on.
15
Q. So stated another way, for a given
16 species on the RAS list that you're using to come up
17 with your thermal criteria from each of the
18 endpoints, your database may have a gap of no
19 literature value for a given fish species that
20 you're utilizing, so that you then have to create a
21 value to put into your -- as one of your inputs;
22 correct?
23
A. Yeah, that's correct.
24
An easy example is where the data
9
1 is primarily based on field observations. And as I
2 indicated yesterday, you really can't produce lethal
3 endpoints with field studies.
4
So for some of those species, they
5 will not have an experimental laboratory direct
6 lethal endpoint. So what we do is we extrapolate a
7 lethal endpoint based on -- in this case, it would
8 be the upper avoidances -- and the relationship
9 within that family or that subfamily of fishes
10 where data does exist.
11
Q. Can you maybe -- stay with that last
12 example you just gave us. Can you describe -- now
13 I'm on Question 1.
14
Can you describe and explain the
15 procedure you follow to actually extrapolate a value
16 for a given thermal endpoint when literature values
17 are not available for a given species?
18
HEARING OFFICER: Excuse me,
19
Mr. Yoder, before you do, I believe he
20
started off referring to as Attachment 3
21
also Exhibit 16 to the record.
22
MS. FRANZETTI: Yes.
23 BY THE WITNESS:
24
A. I'm refreshing myself with Exhibit 16,
10
1 the section that describes that.
2
Okay. This procedure was
3 established by the IOEPA methodology, and we simply
4 followed through with it in the update.
5
Missing parameters are estimated
6 by calculating relationships between six thermal
7 parameters that were collected as part of the raw
8 data compilation for each species. Estimates of
9 missing thermal parameters included calculation of
10 the differences between the optimum and the upper
11 avoidance temperature, the optimum and the upper
12 incipient lethal or chronic thermal maximum, the
13 difference between the optimum and critical thermal
14 maximum.
15
There was -- it's showing the
16 upper avoidance temperature and the upper incipient
17 lethal temperature, differences between the upper
18 avoidance temperature and the critical thermal
19 maximum and differences between the upper incipient
20 lethal temperature and the critical thermal maximum.
21 So what that did, that gave us dimension across the
22 full range of response, from optimum all the way to
23 lethality.
24
Q. Mr. Yoder, could you state the page
11
1 number that you're reading from --
2
A. Page 50.
3
Q. -- from Exhibit 16?
4
A. Page 50.
5
Q. Fifty.
6
Mr. Yoder, moving to my
7 Question 2, although I'm going to change it a bit,
8 because in Question 2 I'm asking you where in the
9 2005 Lower Des Plaines report can the extrapolation
10 formula be found.
11
Based on -- can it be found there?
12
A. I'm not sure.
13
Q. Oh, okay.
14
A. I'm looking.
15
Q. What I was going to suggest is it,
16 instead, in Exhibit 16 somewhere?
17
A. Well, yeah. Exhibit 16 is the -- I
18 wouldn't say it's a Genesis document, because the
19 Ohio EPA documents are the Genesis documents for the
20 procedure, but it's repeated in Exhibit 16 on
21 Page 50.
22
Q. And I do see where you were reading
23 from on Page 50 with the preface, "Estimates of
24 missing thermal parameters included calculation of
12
1 the differences between" -- and then that was the
2 sixth thermal endpoint and/or laboratory methods
3 that you've already read.
4
What I don't see, or didn't see,
5 in looking through this, is whether -- where, if at
6 all, any formulas are given for how one does this
7 estimating by calculating the differences between
8 those factors that are listed in 1-6 on Page 50.
9
A. Well, there -- I'm not sure there's a
10 formula here.
11
Q. Okay.
12
A. There is a set of, basically,
13 determinations of differences between different
14 measured endpoints to establish the estimated or the
15 average differences, which is -- and these are
16 listed in Appendix Table Z(2) in Exhibit 16.
17
So if you can -- and,
18 unfortunately, the appendix tables do not have page
19 numbers. But it's almost to the --
20
Q. Almost to the back. Almost to the
21 last page.
22
A. And it's Appendix Table Z(2)
23 conversion factors also with the standard air
24 calculated, as well, that are used to estimate
13
1 temperature criteria that are in Appendix Z(3),
2 which is nothing more than a listing of the model
3 input variables that we use for the Ohio River and
4 also use for this project.
5
Q. Can you look at Appendix Z(2)?
6
A. Yes.
7
Q. All right. Can you take the first
8 entry there for the fish family? And I'm going to
9 mispronounce that name. Can you pronounce it?
10
A. Yes. Lepisosteidae --
11
Q. Okay.
12
A. -- which it's a common --
13
HEARING OFFICER: Can you spell it for
14
the court reporter?
15
MS. FRANZETTI: I've got it.
16
L-E-P-I-S-O-S-T-E-I-D-A-E.
17 BY THE WITNESS:
18
A. These are the fishes known as Gars,
19 G-A-R.
20 BY MS. FRANZETTI:
21
Q. And under the first column, UAT, which
22 is Upper Avoidance Temperature Optimum, there's a
23 value, "1.5 (plus or minus 0.3)." That's the
24 conversion factor for that fish species?
14
1
A. Yes. Well, for that family.
2
Q. Family, excuse me.
3
A. It's done by family.
4
And, in some cases, subfamilies,
5 or more than one family, live together.
6
Q. And what is that -- when do I use
7 that?
8
A. If -- for instance, if you're
9 missing -- if you're missing a value; okay?
10
Q. For a fish in this family?
11
A. Yes.
12
It's probably not the best
13 example --
14
Q. Why not?
15
A. -- to look at. Because it only has
16 one relationship between the upper avoidance and the
17 optimum.
18
If you look at -- let's --
19
Q. Well, stay with it for a moment,
20 because that's part of my question.
21
So for that family of fish,
22 there's only a conversion factor available, if
23 you're trying to take an upper avoidance temperature
24 value and turn it into an optimum value?
15
1
A. Yes.
2
Q. Okay. What if I want to do one of the
3 things that's in the next five columns, I don't -- I
4 don't have a conversion factor; correct?
5
A. Not for that family.
6
Q. So then, what do I do?
7
A. You use the average.
8
Q. Average what?
9
A. At the bottom. It's just the average
10 of all fish species.
11
Q. Oh, okay.
12
A. It's a stepwise process. You try to
13 get as close as you can, but we're limited --
14
Q. By the available literature?
15
A. -- by the available literature. And
16 that's not uncommon --
17
Q. Okay.
18
A. -- in water quality criteria
19 development.
20
Q. I understand. Really, I'm just trying
21 to understand how you do what you do.
22
So if I go to Appendix Table Z(2),
23 if there is not a conversion factor for getting the
24 missing endpoint I'm trying to get, I go down to the
16
1 bottom to the average of all these fish families
2 and/or, as you said, the species in some cases, and
3 I use that average value to get my -- to calculate
4 my missing endpoint; correct?
5
A. Yes.
6
Q. Okay.
7
HEARING OFFICER: Excuse me,
8
Ms. Franzetti, also you've been referring to
9
the 2005 LDP report, which was Attachment 2
10
to the testimony --
11
MS. FRANZETTI: Yes.
12
HEARING OFFICER: -- Exhibit 15.
13
MS. FRANZETTI: I'm sorry, I've had --
14
HEARING OFFICER: We've all been
15
living with it so much that it went by me at
16
first, too. But thank you. Sorry to
17
interrupt.
18
MS. FRANZETTI: That's the problem
19
with prefiled questions before exhibits are
20
numbered. I'll try and catch that as I'm
21
going through.
22 BY MS. FRANZETTI:
23
Q. Mr. Yoder, has anyone else followed
24 this extrapolation approach in deriving thermal
17
1 criteria?
2
A. I'm not aware of anything else.
3
Q. Moving on to Question 3 -- 3(a), I'm
4 going to rephrase it a bit.
5
Mr. Yoder, the conversion factors
6 you've just shown us in the appendix, did you or
7 your people at MBI develop those conversion factors?
8
A. I developed those -- those are
9 actually holdovers from the 1978 Ohio EPA
10 methodology.
11
Q. So these --
12
A. So we simply used those, we did not
13 calculate new relationships.
14
Q. I think you're anticipating 3(b) of my
15 questions, which is fine.
16
So these were conversion factors
17 established back in 1978 when the original database
18 was created; correct?
19
A. That's correct.
20
Q. And they have not been changed in any
21 way, based on the added 200 new studies that you
22 referred to in Page 6 of your prefiled testimony;
23 correct?
24
A. That's correct.
18
1
Q. Do you think it would improve your
2 conversion factors if you did update them based on
3 those 200 new studies?
4
A. Well, I mean, in all likelihood, some
5 may change because there were additions of brand new
6 species. So we might fill in some of the gaps that
7 exist.
8
I really -- unless I really took a
9 look at it, I'd be guessing.
10
Q. Moving on to Question 4.
11
If literature data on only one of
12 your thermal endpoints for a given species was
13 available in your database, were all three of the
14 remaining endpoints used in your fish temperature
15 model developed by extrapolation from the single
16 available endpoint?
17
A. If only one value, experimental value
18 for an endpoint, was available? I believe we did
19 that for the ORSANCO study.
20
Q. So you would extrapolate to get your
21 other --
22
A. I believe so.
23
Q. -- thermal endpoints?
24
A. Frankly, I'm not sure.
19
1
Q. Well, let me ask it a different way:
2 Part of what I'm trying to understand is, do you
3 have any baseline or threshold requirement, minimum
4 requirement, for having at least two out of the four
5 thermal endpoints from the literature values before
6 you fill in by extrapolation, or can you have, as
7 this question asks, as little as just one literature
8 value for a single thermal endpoint and extrapolate
9 the other three from that?
10
A. No. What I'm doing -- I'm looking at
11 Appendix Table Z(3) in Exhibit 16 and...
12
Q. Why don't you actually tell us what
13 Appendix Table Z(3)'s purpose is?
14
A. This is actually the -- these are the
15 thermal tolerance values. Again, the four baseline
16 input values to the model.
17
And for each species, it lists the
18 optimum, the mean weekly average temperature for
19 growth, the upper avoidance temperature and the
20 upper lethal temperature. It also lists some
21 associated spawning periods and temperatures that
22 fish have been observed to spawn at -- that's kind
23 of ancillary to our subject right here.
24
In that table there are -- besides
20
1 some of the values adjacent to them to the right of
2 the value, there may be an X listed.
3
Q. Yes, I see that.
4
A. That indicates, then, that that value
5 is an extrapolated value.
6
Q. And in the footnote on the last page
7 of Appendix Table Z(3), X is best estimate based on
8 available data, see conversion factors used in table
9 Z(2). Okay. So that's where we see what values
10 were extrapolated.
11
Now, and I'm sorry, I'll try to
12 speed this up.
13
This Appendix Z(3), does it cover
14 all of the fish species and more that you used in
15 your RAS lists for the three designated uses you
16 calculated thermal criteria for?
17
A. Yes.
18
Q. So this will tell me -- if I take your
19 RAS list from Exhibit 15, I go through Appendix
20 Z(3), I will see by looking at a given species on
21 the RAS list in Appendix Table Z(3), if there's an X
22 next to the particular endpoint, it tells me it was
23 based on an extrapolated value?
24
A. Yes.
21
1
Q. Do you know offhand, based on your
2 Table 3 in Exhibit 15, which -- can you tell from
3 looking at that table which of those are based on
4 extrapolated values?
5
HEARING OFFICER: On Page 14, just
6
to...
7 BY THE WITNESS:
8
A. No. Those really -- you wouldn't be
9 able to tell that, because these are the outputs of
10 the model. The extrapolated values are the input
11 variables of the model.
12
You're looking at the output here.
13 BY MS. FRANZETTI:
14
Q. Oh.
15
A. So if I could be so bold as to be
16 helpful here.
17
Q. I would love you to be helpful.
18
A. When we talked Appendix 3 yesterday --
19
Q. Excuse me?
20
A. When we talked about Appendix 3
21 yesterday.
22
Q. Yes.
23
A. Appendix Table 3 --
24
Q. (f) was it?
22
1
A. I believe.
2
HEARING OFFICER: Yeah, 3(f) in
3
Exhibit 15.
4
THE WITNESS: Do you know the page
5
number, by any chance?
6
HEARING OFFICER: Actually, yeah, it
7
would be 64.
8
THE WITNESS: Sixty-four, okay.
9
HEARING OFFICER: There's 1(f) and
10
then it's just right after that.
11
THE WITNESS: Yeah. Appendix
12
Table 1(f). They go 1, 2, 3 for the
13
different tables.
14 BY THE WITNESS:
15
A. So if you're -- are you looking at
16 that --
17 BY MS. FRANZETTI:
18
Q. I am.
19
A. The optimum growth avoidance and upper
20 incipient lethal temperature listed for each of
21 those species are the same as listed in Appendix
22 Table Z(3) in Exhibit 16, except these do not
23 indicate which are the extrapolated values. You
24 would have to give -- you have to use Exhibit 16 to
23
1 use this method, basically, is what I'm getting at.
2
Q. Okay. You did not footnote Appendix
3 Table 1(f) with the Xs to denote what was an
4 extrapolated value; correct?
5
A. Yeah. These tables, actually, are
6 part of the model output, so...
7
Q. Okay.
8
MS. WILLIAMS: Can I ask a redirect at
9
this point?
10
HEARING OFFICER: Yes.
11 BY MS. WILLIAMS:
12
Q. Mr. Yoder, Ms. Franzetti asked you if
13 there were any extrapolated values that were based
14 on just one thermal endpoint. And looking at this
15 Appendix Table Z(3) --
16
HEARING OFFICER: From Exhibit 16?
17
MS. WILLIAMS: Right, from Exhibit 16.
18 BY MS. WILLIAMS:
19
Q. I'm looking at it, I guess, to see if
20 there's any with three Xs.
21
Is that the proper way you would
22 go about defining an answer to that question?
23
A. Yes. That's what I was looking at,
24 too.
24
1
And I don't see any, so I -- and I
2 also can read on Page 50 where it says that at least
3 three of the six parameters used in the
4 extrapolation process had to be available for a
5 species before the procedure was used.
6
HEARING OFFICER: Page 50 of
7
Exhibit 16?
8
THE WITNESS: Yes.
9
HEARING OFFICER: I know that's a real
10
pain, but when people read the transcript,
11
they're not going to know which one we're
12
looking at.
13
MS. WILLIAMS: Especially because
14
we're looking at 15 and 16 together.
15
HEARING OFFICER: Together, right.
16 BY MS. FRANZETTI:
17
Q. Well, actually, Mr. Yoder, I just
18 realized, one of your four thermal endpoints is a
19 calculated value, in and of itself; isn't it?
20
A. Yes.
21
Q. Which?
22
A. The mean weekly average temperature
23 for growth.
24
Q. Right.
25
1
So that one, is calculated from
2 the get-go for every species; correct?
3
A. Right.
4
Q. So we only have, actually, three that
5 can originate from an actual literature value;
6 correct?
7
A. Yes, you're correct.
8
Q. So if there are two Xs on there for a
9 given species, then we did only start with one
10 literature value for that species?
11
A. Yes. But there are more -- this is
12 where it gets a little confusing.
13
Q. A little? Sorry, couldn't resist.
14
A. Well, there's more experimental
15 endpoints than just the optimum upper avoidance in
16 upper lethal. We talked yesterday that there's
17 actually three different upper lethal experimental
18 endpoints. There's, obviously, the upper avoidance
19 temperature within the optimum, there's an optimum
20 on the final preferendum, which we lump together.
21
So there can be more than one
22 experimental endpoint available, and yet only have
23 one real value in this table. So that's a
24 possibility too.
26
1
Q. Okay.
2
I think we -- I'm moving on to
3 Question 5, and I think we've answered it but I just
4 want to be sure.
5
The question was, Is there any way
6 a reviewer of your report to the Illinois EPA can
7 determine from the information it contains which
8 values in your report are actual literature data and
9 which are estimated based on your extrapolation
10 procedure? And the answer to that is what we just
11 went through?
12
You start back at the appendix we
13 were discussing to Exhibit 16, and you move your way
14 forward into Exhibit 15 to determine whether any of
15 those extrapolated values wound up in your thermal
16 criteria in Table 3 of your report; is that correct?
17
A. Yes.
18
Q. Moving on to No. 6.
19
Do you know whether in any of the
20 sets of RAS lists you used in doing your three sets
21 of thermal criteria for the three designated uses
22 that you gave to Illinois EPA, whether the endpoint
23 values for the top three most sensitive species,
24 respectively, in each of those three lists were
27
1 based on extrapolated values?
2
A. This is going to take some looking at.
3
MS. WILLIAMS: Yeah, because -- let me
4
get this straight. We're talking about
5
all -- there's four general uses RAS lists?
6 BY MS. FRANZETTI:
7
Q. Let me clarify what I'm talking about.
8
If you look at Table 3 on Page 14
9 of Exhibit 15 and we have your thermal criteria for
10 modified use RAS 1, your thermal criteria for
11 modified use RAS 2 and then your secondary contact
12 indigenous aquatic life thermal criteria. And
13 staying with the 100 percent column, for example,
14 under the modified use RAS 1 optimum, there is a
15 criteria of 71.2 degrees Farenheit.
16
How do I determine whether that is
17 an extrapolated value or an actual literature value?
18
And if you -- I understand it
19 sounds like you don't -- you can't just look at
20 Table 3 and tell me, "All right, it's this one, it's
21 this one, it's this one." So given that you can't
22 do that, tell me how I go -- how I would do it if
23 I'm willing to take each one of these values and try
24 and figure out if they're extrapolated or not.
28
1
A. You would have to go back to -- okay,
2 for example: The -- in Table 3, the first option,
3 modified use RAS 1, you would have to go to -- well,
4 let's stick with modified use RAS 2, since we know
5 where that Appendix Table is on Page 64 of
6 Exhibit 15. You would have to go to, actually,
7 Page 67 and find the -- okay.
8
For example, let's look at the
9 short-term survival number, because that's really
10 where the most sensitive species --
11
Q. And that's the 88.7 degrees Farenheit
12 number?
13
A. Yes.
14
Q. Okay.
15
A. So you'd go to Page 67 on Exhibit 15,
16 you would go under the column View ILT Exceeded.
17 The first species is white sucker.
18
Okay. So I know it's a white
19 sucker. I would go to Appendix Table Z(3) on
20 Exhibit 15 -- or 16.
21
Q. I'm sorry, give that me again.
22
Once I know it's white sucker from
23 Appendix Table 3(f) of Exhibit 15 I go where next?
24
A. Into Appendix Table Z(3) of Exhibit 16
29
1 and I find white sucker, common white sucker. And I
2 look across at the upper lethal values, and it's a
3 literature value, it's not extrapolated.
4
Q. Okay.
5
A. So that's how you would determine for
6 any of these results, whether it was --
7
Q. Can I just ask you to stay with
8 Appendix Table 3(f) for one more moment?
9
Assuming I was trying to verify
10 whether the optimum value was literature based or
11 extrapolated, when I go to -- when I go to Appendix
12 Table 3(f), I'm looking down instead the Optimum
13 Exceeded column?
14
A. Right.
15
Q. And I think what I'm not understanding
16 is where -- how do I spot which species here I'm
17 supposed to look at under Optimum Exceeded? I'm not
18 following how I determine which of those species
19 listed under Optimum Exceeded is the basis for the
20 optimum value in Table 3.
21
A. That's on Page 66. So if you're
22 interested in the optimum exceeded, if you look
23 under the Optimum Exceeded column --
24
Q. Right.
30
1
A. -- and it's the first species,
2 northern pike.
3
Q. Oh, it's -- I'm sorry, that's what I
4 was missing. It's always the first species you get
5 to, that's the most sensitive species; correct?
6
A. Right. That encompasses 100 percent
7 of the RAS, that's what that column is. If you want
8 to know 50 percent, you count down half.
9
Q. Okay. Thank you.
10
But moving on to Question 6, and I
11 think your answer is no, but let me just make sure.
12
So in any of the sets of RAS used
13 in your report to Illinois EPA, Exhibit 15, are the
14 endpoint values for the top three most sensitive
15 species extrapolated? You can't tell us that just
16 sitting there, you'd have to go through this
17 exercise you've just described for us; correct?
18
A. Yeah, for each option you'd have to go
19 through and determine that.
20
Q. Now, Question 7.
21
When your fish temperature model
22 database was expanded, the additional couple hundred
23 studies that were added, did you check to see how
24 the new literature data that were added to the
31
1 database compared to the old extrapolated endpoints,
2 those new data replaced -- and I recognize that
3 assumes something, let me back up.
4
"Do you know whether, at all, any
5 of those 200 new studies there was an actual
6 literature value for a given species that before in
7 your database you only had an extrapolated value?
8 Do you know if that occurred?
9
A. Yes.
10
Q. Did you or anyone else at MBI do a
11 comparison between when an actual literature value
12 arrived how did it compare to the previously
13 extrapolated value?
14
A. No, I did not -- we didn't do like a
15 species-by-species breakdown of the changes. We
16 just -- but we did accept the literature value over
17 the extrapolated value.
18
Q. So you haven't done any exercise to
19 try and see how good are your extrapolation
20 procedures?
21
A. Well, there is something in Exhibit 15
22 that gets at that.
23
Q. What is that?
24
A. It gets to the ends result of it. It
32
1 is Table 2.
2
Q. That's the fish temperature model
3 outputs for four RAS variations of the Illinois
4 general aquatic life use designation?
5
A. That's correct.
6
Q. How does that get at that?
7
A. Okay. The first one -- the first
8 option set of options there is general use original
9 RAS from the 2004 draft of this report. And that is
10 based entirely on the Ohio EPA 1978 methodology and
11 literature database.
12
And so, the -- if you look at the
13 100 percent short-term and long-term survival and
14 you compare that to the other RAS options, the other
15 three options below that are based on the updated
16 literature database, the last one is exactly the
17 same.
18
Q. You lost me on the last one. The last
19 one is the same?
20
A. The bottom one, the general use RAS 3
21 that reduced some from the equation.
22
Q. I'm sorry, I'm not following the last
23 one is the exactly the same. If I look at the
24 general use original RAS values under 100 percent,
33
1 and I look at the general use RAS 3 at the bottom,
2 was that where I was supposed to look?
3
A. If you look at the -- the short and
4 long-term survival values are the same.
5
Q. Okay.
6
A. Some of the other values are
7 different. But those are the two that, I would say,
8 are of interest. Because that's what the
9 recommendations for --
10
Q. Right. But I don't know whether the
11 original survival long-term and short-term was based
12 on an extrapolated value or not.
13
I may be comparing literature to
14 literature here; correct?
15
A. It's possible.
16
Q. Yeah. Because you can't tell me
17 whether or not any of these values in the 2004 draft
18 are extrapolated or not; correct?
19
A. Yeah, I would have to have the
20 original Ohio EPA raw database in front of me to
21 make that determination.
22
Q. Right.
23
A. And I don't have that in front of me.
24
Q. So we don't know whether we're
34
1 comparing literature to literature or extrapolated
2 to literature or extrapolated to extrapolated as we
3 sit here today; correct?
4
A. Yeah, I can't tell you that right now,
5 with certainty.
6
Q. Excuse me just a moment.
7
Okay. Moving on to Section I,
8 Representative Aquatic Species. Question No. 1, in
9 Footnote 2 to Table 1 of Exhibit 15, you state that
10 the species noted were, quote, "Collected in the UAA
11 study segment between 1994 to 2002."
12
To what data does your statement
13 refer?
14
A. Well, as I recall, I was provided a
15 table of species that came from the approximate
16 section of the lower Des Plaines River that I
17 understood was subject of the UAA study, and in
18 sitting in on the biological subcommittee meetings,
19 that was my understanding. So -- but that's the
20 data I was provided.
21
Q. Mr. Yoder, so are you saying that this
22 reference to -- let me -- let me for the record read
23 the entire sentence. "While these species were not
24 included" -- excuse me, let me back up another
35
1 sentence.
2
"We also tested the influence of
3 species additions of adding yellow perch, sauger and
4 walleye, while these species were not included by
5 the review of historical distribution data, and
6 occurred in very low numbers in the 1994 to 2002
7 databases" -- and it doesn't sound like a list. It
8 sounds like some sort of, quite frankly, it sounds
9 like stream survey data taken during the period of
10 1994 to 2002, which showed that those three species,
11 yellow perch, sauger and walleye occurred in very
12 low numbers.
13
So do you recall seeing any stream
14 survey databases for the lower Des Plaines River?
15
A. Yeah, that's -- I was provided a
16 summary of sampling data that took place between
17 1994 and 2002.
18
Q. Who did that sampling?
19
A. I believe I -- oh, I would assume it
20 was sponsored by Midwest Generation.
21
Q. Okay. And who gave you those
22 databases?
23
A. EPA.
24
MS. WILLIAMS: Can you clarify --
36
1 BY THE WITNESS:
2
A. It was a table of data.
3
MS. WILLIAMS: Chris, can you clarify
4
when you say "EPA," which one?
5 BY THE WITNESS:
6
A. Region 5.
7 BY MS. FRANZETTI:
8
Q. And is that table of data anywhere
9 included in the appendices to Exhibit 15?
10
A. No. Not the exact reproduction of
11 that.
12
But anything under the Membership
13 Rationale column that has a 1994 to 2002, appeared
14 in that table that I provided.
15
Q. In the Membership Rationale column,
16 which is table...
17
A. Table 1 of Exhibit 15.
18
Q. So you did rely, to some extent, on at
19 least -- strike that.
20
At least for purposes of
21 identifying the RAS list that you worked from to
22 derive your thermal criteria, you relied to some
23 extent on stream survey data that you were provided
24 by U.S.EPA, in which you believe was sponsored by
37
1 Midwest Generation; correct?
2
A. Yes.
3
Q. Okay.
4
HEARING OFFICER: Excuse me.
5
Mr. Yoder, is there any way that we could get
6
a copy of that?
7
THE WITNESS: I am -- I may have --
8
MR. SULSKI: I'm trying to figure out
9
if it's in the Lower Des Plaines UAA Study
10
Attachment A.
11
THE WITNESS: Yeah, we can try and
12
find it.
13
HEARING OFFICER: Thank you.
14
MR. SULSKI: And it may already be an
15
exhibit because we have data on fisheries
16
from both EA and MBI.
17
MS. WILLIAMS: But if it's not in the
18
record, we'll try and find it. And try and
19
provide it.
20
HEARING OFFICER: Thank you.
21
MS. WILLIAMS: Can I ask a redirect at
22
this time?
23 BY MS. WILLIAMS:
24
Q. I guess this is sort of a general
38
1 question that I thought of yesterday that didn't
2 necessarily fit in a particular place.
3
But when you develop these RAS
4 lists in your report, was it your intention that the
5 Illinois EPA or whoever their decision maker
6 regulator was, would use those as they were given,
7 or did you expect that they would be modified in
8 some way?
9
A. Well, the option is always there for a
10 user to modify it. But the intent, especially with
11 the general use, is to pick a list that represents
12 what eventual compliance with general would
13 incorporate. And that's the essence of restoration.
14
We have to have a target to shoot
15 for. And that's the essence of RAS use and
16 virtually any water quality criteria developed.
17
MS. FRANZETTI: Can I have the answer
18
read back?
19
(WHEREUPON, the record was
20
read by the reporter.)
21 BY MS. FRANZETTI:
22
Q. Moving on to Question 2 on Pages 8 and
23 9 of your prefiled testimony.
24
You describe how you selected the
39
1 species you considered representative of each of the
2 three use categories you considered. But it appears
3 for your general use RAS list, you included all
4 species on which temperature data were available.
5
And if that's correct, please
6 explain how your approach to the general use RAS
7 list is consistent with your stated or prefiled
8 testimony?
9
A. Is it possible for you to point to a
10 specific place in my testimony?
11
Q. Okay. Give me a second.
12
I think you're going to have to
13 read, Mr. Yoder, basically, the whole first
14 paragraph of Page 8, the Representative Aquatic
15 Species list.
16
And if I misunderstood your
17 testimony, in terms of my statement that how you
18 selected the species you considered representative,
19 please feel free to correct my misunderstanding.
20 And maybe that's -- I don't have a problem with
21 starting with that question in terms of how did you
22 select the species for your general use RAS list?
23
A. You want me to read my testimony?
24
Q. No, because what I'm trying to
40
1 understand is what criteria you use for -- who got
2 on the list for general use?
3
A. Membership of the list for general use
4 is based on the realistic expectation of species
5 that would occur in a particular river segment under
6 conditions. And I'm interpreting general use to
7 meet the minimum Clean Water Act goals, which, in
8 this case, you have to use some assumptions because
9 it's so general.
10
But it means compliance with what
11 we all understand is baseline water quality
12 requirements. Then the species I put on the general
13 use RAS list are representative of what should be in
14 the Des Plaines River when it fully attains the
15 general use.
16
Q. Okay. In the step from what you
17 were -- what you -- when you start looking and
18 deciding which species may be representative of
19 general use, to the actual placement of them on the
20 list, what my question is asking you: It seems you
21 get influence to some degree by whether or not
22 temperature data exists on a given species in your
23 database.
24
Do you do another -- that's my
41
1 point. Do you do another cut, so to speak? Some of
2 you guys, although I think you're representative of
3 general use, you're not making the list because I
4 don't have much thermal data on you.
5
A. That Table 1 only includes species
6 that have thermal data. If I were to generate a
7 list of species that were possible in the
8 Des Plaines River, it would be larger than this
9 list.
10
Q. Okay.
11
A. Species that did not have thermal data
12 were not listed on Table 1.
13
Q. Right.
14
A. I think that's where --
15
Q. Right.
16
A. -- we're having the difficulty.
17
Q. I understand.
18
A. If you look in Appendix Table Z(3) of
19 Exhibit 16, there's more than 49 species in that
20 table. I believe there's almost 90-some.
21
Q. Right.
22
A. So we're not selecting every species
23 that has thermal data, we're selecting species that
24 are representative of a particular river segment
42
1 that also have thermal data.
2
Q. Right. So -- but there's two criteria
3 for getting on the list.
4
Do I even think you're
5 representative, and if so, is there any thermal data
6 on that species? And if the answer is yes to both
7 questions, you may make it onto Table 1; correct?
8
A. Yes.
9
Q. Okay.
10
MS. DIERS: Can we have just a moment,
11
please?
12
(WHEREUPON, discussion was had
13
off the record.)
14
MS. FRANZETTI: May I proceed?
15
MS. DIERS: Thank you.
16
MS. FRANZETTI: You're welcome.
17 BY MS. FRANZETTI:
18
Q. Question 2(b).
19
Can you tell me what species
20 dropped off the RAS list because there was not
21 thermal literature data available on those species?
22
MS. FRANZETTI: Counsel, I really
23
don't appreciate conversation in the
24
middle --
43
1
MS. WILLIAMS: I think he's explained
2
this already, and I was just --
3
MS. FRANZETTI: I'm looking for
4
examples.
5
MS. WILLIAMS: I think he explained
6
they had started with species that there was
7
data on, is all. I think you're asking
8
him --
9
MS. FRANZETTI: No, he didn't start
10
with species which there was data on. He
11
said he starts first with what does he think
12
are representative species. Then his second
13
step is do I have thermal data for all those
14
species, and the ones he doesn't drop off the
15
list.
16 BY MS. FRANZETTI:
17
Q. Who dropped off the list?
18
A. I know there were species that are
19 there that we don't have verbal data for. I would
20 have to have that original table to tell you that
21 though.
22
Q. And where's -- is the original table
23 in either Exhibit 15, 16...
24
A. No, it's not. It's the one we were
44
1 trying to determine if it was part of the record
2 already.
3
Q. Oh, the 2000 -- I'm sorry, the 1994 to
4 2002 data?
5
A. Yes.
6
Q. All right. So what you're telling me
7 is once I see that 1994 to 2002 information, I can
8 look and any fish that was on there as present in a
9 given section of the waterway, whether it be Chicago
10 Sanitary Ship Canal, Upper Dresden Pool, all of
11 those fishes would have started on your list, your
12 RAS list, for given designated uses. And the ones I
13 no longer see in Table 1 I just compare the two and
14 that's what dropped off, due to the lack of
15 literature value data?
16
A. Right. And I --
17
Q. Okay.
18
A. And I can't off the top of my head --
19
Q. No, that's fine.
20
A. -- I would be guessing.
21
MS. FRANZETTI: That's fine.
22
MR. ETTINGER: Can I ask a couple of
23
follow-ups here?
24
HEARING OFFICER: Identify yourself
45
1
for the record, please.
2
MR. ETTINGER: I'm sorry, I'm Albert
3
Ettinger and I represent the Sierra Club
4
Prairie Rivers Network and some other people.
5 BY MR. ETTINGER:
6
Q. That '94 to 2000 data, that was all in
7 the Lower Des Plaines and the Sanitary and Ship
8 Canal and the Chicago River; is that correct?
9
A. Yeah, I think it was just the Lower
10 Des Plaines.
11
Q. Just the Lower Des Plaines.
12
On Page 8 of your report you say,
13 "The general use supports a diverse warm water fish
14 assemblage but is expected to occur in the least
15 disturbed free-flowing habitats of the Lower
16 Des Plaines and similarly sized rivers in the
17 region." Sorry, this is Page 8 of what has been
18 marked as Exhibit 15.
19
What similarly-sized rivers in the
20 region did you look at?
21
A. Well, that's -- I mean, the Kankakee
22 River is a tributary to just downstream of that
23 segment, so I obviously looked at that. And
24 that's -- the other membership rationale is
46
1 historical presence, and I used the 1979 version of
2 the Fishes of Illinois to help with that. And so...
3
HEARING OFFICER: Excuse me, is that
4
the publication?
5
THE WITNESS: Yes, it is.
6
HEARING OFFICER: By -- who published
7
the 1979...
8
THE WITNESS: If I can read the
9
citation. Smith is the author.
10
HEARING OFFICER: I apologize for
11
interrupting.
12
MR. ETTINGER: That's okay.
13
HEARING OFFICER: I just wanted to get
14
the reference in. That's fine. That's
15
sufficient.
16 BY THE WITNESS:
17
A. It's the State Fish Book of Illinois,
18 basically.
19 BY MR. ETTINGER:
20
Q. And so, how did you use the State Fish
21 Book?
22
A. Well, I mean, it's a practice just to
23 look at regional species that might be regionally
24 relevant, especially in a degraded waterway.
47
1 Because, obviously, some of the more sensitive
2 species are likely not to be present or even
3 historically present. So you have to have an
4 expectation that if things get restored to what the
5 clean water echo is, that the species are going to
6 return.
7
And if you're going to basing
8 criteria to meet that use, they have to be
9 compatible. That's the concept.
10 BY MS. FRANZETTI:
11
Q. Moving on to Question 3.
12
On Page 9 of your prefiled
13 testimony, it is stated that, quote, "Only the
14 general and modified RAS list relied on sample data
15 from the Lower Des Plaines. The secondary contact
16 RAS is a general collection of, typically, tolerant
17 species that are usually found in the highly
18 degraded and modified waters."
19
I think based on what you've just
20 testified to, you've explained that your reference
21 to sample data is to that 1994 to 2002 stream survey
22 summary table you were given by U.S.EPA; correct?
23
A. Yes. That and the Fishes of Illinois.
24
Q. Oh, I understand. But Fishes of
48
1 Illinois, that's not what you meant by sample data;
2 is it?
3
A. That's sample data.
4
Q. Oh, that is? Okay. All right.
5
And -- well, then why for your
6 secondary contact RAS list wouldn't you have also
7 said you relied on sample data, it includes the
8 Fishes of Illinois book?
9
A. Because the concept of the second --
10 in my view and what I was led to believe, it's,
11 basically, a nuisance use. It's the most minimal
12 protection afforded by state water quality
13 standards, and it's -- by the time you get to that
14 use, you're left with the only most highly tolerant
15 fish species.
16
So you really don't need a lot of
17 sample data to know that. You need some experience
18 in having been in those water bodies to know what
19 species are left over.
20
But the concept is, it's just a
21 very minimalist protection category for the
22 protection of, I think, what we referred to as
23 nuisance conditions. And you can usually find those
24 things in the -- what's called the free fronts in
49
1 water quality standards, free from acute lethality,
2 et cetera.
3
Q. All right. Moving on to Question 4.
4 Again, referring to Page 9 of your prefiled
5 testimony you state, quote, "The secondary contact
6 RAS is a general collection of typically tolerant
7 species that are usually found in highly degraded
8 and modified waters."
9
Can you explain what you meant by
10 your phrase "highly degraded"?
11
A. The worst of the worst. The examples
12 we have are the both physically and chemically
13 polluted waters.
14
Q. So when you say "physically," you mean
15 things like absence of any adequate habitat?
16
A. Yeah, gross habitat modifications from
17 a -- from the benchmark of a natural river use
18 system.
19
Q. Okay. Moving on to Question 5.
20
Referring to the last sentence at
21 the bottom of Page 9 of your prefiled testimony. It
22 stated that, quote, "The tables I provided on pages
23 13 and 14 of my report illustrate temperatures that
24 should not be exceeded in order to protect a given
50
1 percentage of the species in each RAS grouping for
2 the four primary thermal endpoints."
3
Now, I'm going to ask you to
4 explain how you're using some of the terms in that
5 statement. First, what is the -- what is your
6 intended meaning of the term "protect"?
7
And if it's easier for you to say
8 protect a given percentage to combine that, that's
9 fine.
10
A. Okay. So let's, once again, look at
11 on Page 13 and just, for ease of reference, let's
12 look at the first category, the general use original
13 RAS.
14
And again, for --
15
Q. Could I actually stop you?
16
A. Yes.
17
Q. And maybe for clarification, is it
18 really, though, Table 3 that are the recommended
19 thermal criteria for the three uses you were looking
20 at or the -- well, I'm sorry, for the modified use
21 with the two variations and secondary contact that
22 you were recommending to IEPA here?
23
MS. WILLIAMS: I don't understand the
24
question, do you?
51
1 BY MS. FRANZETTI:
2
Q. I'm trying to make sure I understand
3 the difference between Tables 2 and 3. Table 2 is
4 general use; correct? Just general use with your
5 various variations.
6
And Table 3 is modified use and
7 secondary contact.
8
A. That's correct.
9
Q. All right. And the reason I'd like to
10 use Table 3, is the modified use I think we went
11 over yesterday was -- well, at least there was some
12 basis to say that's what was applicable to the Upper
13 Dresden Pool. So that's why I'm asking would you
14 mind using, by way of example, the information for
15 either the modified use variations included in
16 Table 3?
17
A. Okay. Well, we'll look at the one we
18 talked about yesterday, which is the second modified
19 use option. Modified use RAS 2.
20
So again, looking at the
21 short-term survival row, what that implies is
22 consistent with my statement, is that temperature of
23 88.7 degrees should not be exceeded to assure
24 protection of all of the RAS for that option. And,
52
1 of course, the extension is that it will protect the
2 use.
3
MR. ETTINGER: May I follow up on
4
that?
5
MS. WILLIAMS: I would like to follow
6
up first, if that's okay.
7
MR. ETTINGER: Okay.
8 BY MS. WILLIAMS:
9
Q. I think there might have been some
10 confusion created by that question, at least in my
11 mind. Is there anywhere in your report here,
12 Exhibit 15, where you recommend to the regulator
13 whether the general use or the modified use or the
14 secondary contact, for that matter, are applicable
15 to the designated uses for the lower -- for the
16 Upper Dresden Island Pool.
17
A. I don't believe so, so no.
18
HEARING OFFICER: Ms. Dexter?
19
Identify yourself, please.
20
MS. DEXTER: I'm Jessica Dexter, ELPC.
21 BY MS. DEXTER:
22
Q. So are you saying that when you say
23 protected species, you're just protecting for
24 lethality, specifically short-term lethality, is
53
1 that what "protect" means?
2
A. Yes, protecting for that particular
3 endpoint, yes.
4
MR. ETTINGER: May I ask a further
5
question along that line?
6 BY MR. ETTINGER:
7
Q. In terms of protect, would those
8 temperatures protect fish larvae?
9
A. These are -- some of the data is based
10 on larval tests. But again, it's a mix of all life
11 stages.
12
Q. Are larvae, generally, more sensitive
13 to temperature than adult fish?
14
A. I'm not real positive about that. I'd
15 have to look -- I'd have to dig that out of the raw
16 database.
17
MS. FRANZETTI: Mr. Ettinger, you
18
missed the testimony yesterday that most of
19
the literature values are based on juveniles,
20
larvae, first born, first-year young.
21 BY MS. FRANZETTI:
22
Q. With respect to moving on to
23 Question 6, near the bottom of Page 9 of your
24 prefiled testimony, you refer to potential RAS
54
1 lists. Can you explain what you mean by
2 "potential"?
3
A. Where in my testimony?
4
Q. Bottom of Page 9.
5
Did you find it, Mr. Yoder?
6
MR. SULSKI: Bottom of Page 9, top of
7
the last paragraph.
8 BY THE WITNESS:
9
A. I see it. I apologize.
10
Potential RAS lists. So you're
11 asking what's the meaning of potential?
12 BY MS. FRANZETTI:
13
Q. Yes, what's your intended meaning
14 there?
15
A. The intended meaning is that that's
16 what we would expect to potentially be
17 representative of each one of those designated use
18 tiers. So that the term "potential" --
19
Q. Is it -- let me ask a follow-up on
20 that.
21
Is it intended to have a similar
22 meaning to the meaning of attainability under the
23 use attainability analysis?
24
A. Not necessarily.
55
1
Q. Okay.
2
A. I mean, I think it has some relevance
3 to that, but it -- what we're trying to do is to
4 say that -- we're trying to attenuate the derived
5 criteria against the expectations that a particular
6 designated use tier will be supported by those
7 criteria. And the main ingredient, the main
8 difference between the three designated use tiers is
9 the RAS membership.
10
And again, those necessarily
11 subsets of what really would exist out there.
12
Q. Okay. I'm going to move on to Topic J
13 QA/QC Question 1.
14
For the proposed thermal water
15 quality standards -- and this is back to your
16 Tables 2 and 3 -- that are based on the literature
17 data for the most sensitive species in your ranking
18 approach, how was the validity of that literature
19 data confirmed? And let me just read A and B so
20 that you can answer it all at once.
21
What I'm looking for is did people
22 review that technical literature that provided that
23 value for a given endpoint to determine if they were
24 acceptable, and if so, what criteria were used to
56
1 make sure that that literature value was reliable
2 and credible?
3
HEARING OFFICER: Ms. Franzetti,
4
excuse me. I was just reminded. We talked a
5
lot about QA/QC yesterday.
6
MS. FRANZETTI: Okay.
7
HEARING OFFICER: Do you recall that?
8
I mean, because I think some of this might
9
have been covered yesterday. If not, I don't
10
want to --
11
MS. FRANZETTI: No, no, I understand.
12
I think, generally, in terms of what got into
13
the database.
14
HEARING OFFICER: Okay.
15
MS. FRANZETTI: And so, I guess I
16
would just ask -- maybe I can ask it a little
17
differently to shortcut it.
18 BY MS. FRANZETTI:
19
Q. What I'm asking is, whether -- if --
20 when you get down to where your hundred percent
21 column is based on what can be a single literature
22 value or two literature values, does anyone take
23 those out and look at them, scrutinize them, to make
24 sure that they should be determinative of what the
57
1 recommended criteria is?
2
A. Yeah, I did that as part of the
3 ORSANCO project. That's Exhibit 16.
4
HEARING OFFICER: ORSANCO, I think, by
5
the way, would you spell it? I think it's
6
the first time we've used it today.
7
THE WITNESS: O-R-S-A-N-C-O, all caps.
8 BY MS. FRANZETTI:
9
Q. So you went -- if I understand your
10 answer correctly, for any literature value that is
11 contained in Exhibit 16, you went and looked at the
12 underlying study report, lab report, whatever one
13 wants to call it, and made the determine it met your
14 QA/QC requirements?
15
A. Yes, we --
16
Q. All right.
17
A. -- talked fairly extensively about
18 this yesterday. I think I explained the procedure.
19
Q. Okay. Moving on to Question 2.
20
In the 1985 U.S.EPA guidelines,
21 data compilers are advised to check their data sets
22 to determine if the data are acceptable.
23
Well, let me skip this, because I
24 think you've already answered what you did.
58
1
Moving on. Give me a moment, we
2 may -- some of these may also -- the rest of these
3 may also be --
4
HEARING OFFICER: You know what, I
5
think this might be a good time to take a
6
break.
7
MS. FRANZETTI: Sure.
8
HEARING OFFICER: I did want you to
9
look on that 1994, 2002 data and get back to
10
this after the break.
11
(WHEREUPON, a recess was had.)
12
HEARING OFFICER: Let's go back on the
13
record.
14
MS. WILLIAMS: Our belief is that the
15
information you relied on is contained in
16
Appendix A. But we're not convinced it's in
17
the same format. So he -- because we don't
18
have his list to compare to. He thinks he
19
has his list in his hotel room, and we will
20
try to provide it this afternoon, first thing
21
tomorrow, so that we can all compare and make
22
sure.
23
HEARING OFFICER: Attachment A?
24
MS. WILLIAMS: Did I say Appendix A?
59
1
I'm sorry. Attachment A should have the
2
substance of information but maybe not in the
3
same format.
4
HEARING OFFICER: Okay.
5
Ms. Franzetti?
6
MS. FRANZETTI: Yes.
7 BY MS. FRANZETTI:
8
Q. Mr. Yoder, I'm going to try and
9 condense Questions 2-7 into a single question.
10
What I'm trying to understand and
11 learn from you is, with respect to QA/QC procedures
12 that were applied to your database, are you familiar
13 with what the 1985 U.S.EPA guidelines prescribe in
14 terms of the type of QA/QC procedures that should be
15 applied to a database, such as yours, before
16 determining that the information is reliable and can
17 be used as a basis for establishing criteria or
18 standards? Are you generally familiar with what
19 U.S.EPA prescribes?
20
A. Only generally. I think I went over
21 that yesterday about my familiarity with the 1985
22 guidelines.
23
Q. I wasn't sure if it applied as well to
24 the QA/QC. So all right.
60
1
Based on your general familiarity,
2 can you tell me whether or not when you say you
3 reviewed those literature reports and studies, that
4 are included in your database, to make sure they
5 were reliable and credible, did your review equal or
6 satisfy what the U.S.EPA QA/QC guidelines are?
7
A. Again, I described what process I use
8 to assure that in my testimony yesterday, and I am
9 also not familiar enough with that document to say
10 with assurance that what I did was equivalent.
11
Q. Unless the Board or hearing officer
12 disagrees, I think we've covered No. 8 yesterday.
13
Moving on --
14
MR. ETTINGER: May I ask one question?
15
HEARING OFFICER: Sure.
16 BY MR. ETTINGER:
17
Q. Your report, did you ever discuss it
18 with officials at the U.S.EPA?
19
A. The --
20
MS. WILLIAMS: Which report?
21 BY THE WITNESS:
22
A. Exhibit 15?
23 BY MR. ETTINGER:
24
Q. Yes?
61
1
A. Well, it was a product of a grant that
2 we were awarded by Region 5, so they -- it was who
3 the report was done for. So, yes, it was discussed
4 with them.
5
Q. And did they review it with you?
6
A. Yes, they reviewed it.
7
MR. ETTINGER: Thank you.
8 BY MS. FRANZETTI:
9
Q. Well, given that Mr. Ettinger has
10 brought that up --
11
HEARING OFFICER: Let me have
12
Ms. Franzetti, and then we'll come back to
13
you, Mr. Howe.
14 BY MS. FRANZETTI:
15
Q. Mr. Yoder, do you recall meeting with
16 the U.S.EPA in or about October 2006 to discuss
17 temperature criteria in your report?
18
A. I'm not certain of -- I'd have to look
19 at my calendar to see what meeting I was at,
20 because --
21
Q. All right. Well, you know what, I
22 thought that might help you in terms of -- because I
23 don't know how many meetings you tend to have with
24 U.S.EPA. But do you recall in or about 2006 having
62
1 a meeting with them regarding your recommended
2 temperature criteria?
3
A. Yeah, I think it was --
4
MS. WILLIAMS: Again, are we talking
5
about the Lower Des Plaines --
6
MS. FRANZETTI: Yeah.
7
MS. WILLIAMS: -- or the ORSANCO?
8
Okay, you're talking about --
9
MS. FRANZETTI: Lower Des Plaines.
10 BY THE WITNESS:
11
A. My recollection of that meeting was,
12 yeah, it did focus on the -- somewhat on the Lower
13 Des Plaines. But it was really about the
14 methodology.
15 BY MS. FRANZETTI:
16
Q. All right. Well, why don't you tell
17 us what was discussed in that meeting.
18
A. Best I can recall, and it seemed to me
19 it was more towards the winter than the fall. And I
20 really would have to look at my 2006 calendar to
21 tell you when it took place.
22
Q. Oh, I really don't care about the
23 date, but let's get to the substance of the
24 discussion.
63
1
What was discussed?
2
A. Well, the technical elements of the
3 procedure and some of the issues surrounding that
4 and what we might do to continue to improve it.
5
Q. What were some of the issues
6 surrounding that, as identified in that meeting?
7
A. Oh, that's -- I'm trying to recall.
8 But I think there were some -- most of the
9 discussions centered around some of the concerns
10 that some EPA staff had about the -- are we sure
11 we're covering other ecosystem-related things that
12 happen that may not be covered by dwelling on, you
13 know, lethal endpoints and that type of thing, that
14 was one issue. I think another issue was there was
15 concern that even though you're protecting for the
16 short-term survival endpoint, at the time you get
17 down there you can also exceed the other endpoints
18 for a lot of species.
19
And there was some concern
20 expressed about that as well. So -- but it was more
21 in the climate of a -- what can we look at through
22 further applied research to make the process,
23 perhaps, work better.
24
Q. And has anything been done to make the
64
1 process better by you?
2
A. Oh, I have an ongoing project.
3
Q. But I take it that's not finished yet?
4
A. No.
5
Q. Okay. So, at this point, you don't
6 have anything to present that improves upon your --
7
A. No.
8
Q. -- Exhibit 15?
9
A. No, not yet.
10
HEARING OFFICER: Mr. Howe?
11
MS. FRANZETTI: Now --
12
HEARING OFFICER: I'm sorry.
13
MS. FRANZETTI: Oh, I'm sorry.
14
HEARING OFFICER: Mr. Howe had a
15
follow-up as well.
16
MR. HOWE: Mr. Yoder, could you tell
17
me --
18
HEARING OFFICER: You need to --
19
excuse me, you need to stand up and identify
20
yourself.
21
MR. HOWE: All right. Mr. Yoder,
22
could you tell me --
23
HEARING OFFICER: You still need to
24
tell me who you are.
65
1
MR. HOWE: Oh, you said, "Mr. Howe,"
2
I'm sorry.
3
HEARING OFFICER: Well, I know, but
4
the court reporter doesn't know that.
5 BY MR. HOWE:
6
Q. Peter Howe, H-O-W-E.
7
And my question to Mr. Yoder is,
8 does his Exhibit 15 follow guidelines set out in the
9 U.S.EPA Gold Book and Blue Book?
10
A. Not entirely.
11
MR. HOWE: All right. Thank you.
12
HEARING OFFICER: Sorry,
13
Ms. Franzetti.
14
MS. FRANZETTI: That's okay.
15 BY MR. FRANZETTI:
16
Q. Mr. Yoder, did you get any written
17 comments regarding your Exhibit 15 from the U.S.EPA?
18
A.
I'd have to look to make sure. I
19 believe I did, but I'm not 100 percent sure.
20
Q. Would you be willing to produce those?
21
A. If I can find them.
22
Q. Thank you.
23
MR. ETTINGER: Follow up on Mr. Howe's
24
question piqued my curiosity.
66
1 BY MR. ETTINGER:
2
Q. How does your methodology divert from
3 the Blue Book and Gold Book?
4
A. Well, there really isn't much
5 difference between the two. The -- I think about
6 the only thing we have in common with the U.S.EPA
7 methodology is the calculated mean weekly average
8 temperature for growth and perhaps the use of an
9 optimum.
10
But there's no use of, that I
11 recall, that I'm familiar with, in that document,
12 that talks about upper avoidance temperatures and
13 the -- it does reference things like upper-incipient
14 lethal temperature, but it uses it in a different
15 manner.
16
HEARING OFFICER: And what are the
17
Blue Book and the Gold Book?
18 BY THE WITNESS:
19
A. The Blue Book, as I understand it, is
20 the 1973 National Academy of Sciences Document on
21 Water Quality Criteria. And the Gold Book is 1985
22 or '7?
23
MR. HOWE: Six.
24
67
1 BY THE WITNESS:
2
A. 1986, split the difference, EPA's
3 update to their water quality criteria document.
4
HEARING OFFICER: Thank you.
5
MS. WILLIAMS: It would be portions of
6
that document, probably not the whole thing,
7
but portions of the Gold Book are included in
8
Attachment V, the statement of reason.
9
HEARING OFFICER: Thank you.
10
Mr. Howe?
11 BY MR. HOWE:
12
Q. Peter Howe. Does that Gold Book or
13 Blue Book recommend that 50 percent of the species
14 not be included in the growth that is present in the
15 streams? If I -- if I refer you to Exhibit 15, when
16 you looked at growth -- I realize that you're not --
17 you excluded 50 percent of the growth consideration
18 in that growth considerate.
19
You say, basically, you looked
20 50 percent, you kept 50 percent in the growth and
21 you deleted the other 50 percent.
22
A. I'm a little confused. To clarify,
23 I'll read what the procedure says.
24
Q. Okay.
68
1
A. What we compute is a seasonal average,
2 this is through the summer season, and a daily max.
3 The averages should be consistent with, and I'm
4 reading from Page 12 of Exhibit 15, "One,
5 100 percent long-term survival of all representative
6 fish species. Two, growth of commercially or
7 recreationally important fish species. Three,
8 growth of at least 50 percent of the nongame fish
9 species."
10
And I think that is the 50 percent
11 that you're referring to.
12
Q. Yes, it is.
13
A. Note, the Gold Book makes no
14 recommendations on how to make these decisions.
15
Q. So it's conceivable for 50 percent of
16 the fish, with your maximum temperatures, that
17 two-week averages, a number of fish would not
18 exhibit any growth or almost three months?
19
A. Well, that's quite a leap. What this
20 says is, that the mean week -- the calculated mean
21 week average temperature for growth can't be
22 exceeded for 50 percent of the nongame species.
23 However, if we stick to the growth that's
24 commercially or recreationally important for those
69
1 species, it may well encompass more than 50 percent
2 of the nongame species. It just depends on where
3 these things fall. But it doesn't -- if that's
4 exceeded, it doesn't mean fish are going to stop
5 growing.
6
Q. We --
7
A. It's also a period average --
8
Q. Okay.
9
A. -- for the entire summer.
10
Q. We have a situation in which the
11 period average for the entire summer can exist. And
12 if that is the case, would -- I would -- say, red
13 horse, would they exhibit growth, no growth for that
14 time period?
15
A. It would be dependent on the specific
16 set of criteria and the RAS list. And I would have
17 to look at that specifically.
18
MS. FRANZETTI: Madam Hearing Officer,
19
I would object at this point. We're well
20
beyond follow-up. We have limited time with
21
Mr. Yoder.
22
HEARING OFFICER: I agree, Ms.
23
Franzetti.
24
I'm sorry, if we have time later,
70
1
we can get back into this.
2 BY MS. FRANZETTI:
3
Q. Mr. Yoder, finishing up on QA/QC, and
4 again, I just want to make sure I do understand, the
5 record is clear, on what level of QA/QC was applied
6 to your database. With respect to my Question 9,
7 which refers to Page 3 of your Exhibit 15 report,
8 and this is in the second paragraph, I think it's
9 the third sentence, where it says, "The original
10 literature source was examined for relevancy,
11 originality and completeness, as much as was
12 possible, prior to accepting the data in the master
13 database."
14
What was the intended meaning
15 there "as much as was possible"? Because that
16 doesn't sound like all the literature reports were
17 reviewed for relevancy, originality and
18 completeness.
19
A. They were.
20
Q. They were. So why the caveat "as much
21 as was possible"?
22
A. Well, I mean, what are the boundaries
23 on those previous terms? I mean, short of calling
24 and updating an individual study?
71
1
I mean, I didn't do that,
2 obviously. So that -- it had to fall within the
3 realm of reason with the resources that I was
4 provided to do this work.
5
Q. All right. Now, stay right there in
6 your report. Going on to the next sentence, "The
7 acceptance of, quote 'extrapolated,' end quote,
8 i.e., without a direct review of the original
9 publication citations, was done for some of the more
10 comprehensive thermal effects compendia, such as
11 Brown 1974, Wismer and Christy 1987, Pokenson 1990
12 and Bitenger, et al, 2000."
13
I don't understand what you mean
14 by "acceptance of extrapolated citations."
15
A. What that means is, what these
16 compendia do, they -- well, they're a compendia of
17 multiple literature studies. So they did an
18 exercise much like what I did.
19
And it make sense that somebody
20 else already did that heavy lifting. And again,
21 with the resources that I have available to complete
22 these projects, it was basically myself doing this
23 work.
24
There was no army of lab
72
1 researchers, you know, to support this. So -- and I
2 was advised by members of the ORSANCO ad hoc
3 committee that the original work was done for to use
4 these references.
5
These were reputable references,
6 it's common knowledge among those in thermal biology
7 that these are the leading compendia.
8
Q. Okay. And then it goes on --
9
A. What they do, they cite literature
10 just the same way I did. So for some of the data
11 that made it into Appendix Z of Exhibit 16, I did
12 not go and retrieve the original study, I took what
13 the -- for some, not all for some, I took their
14 value as cited in their study, that's what that
15 meant.
16
So I did not go retrieve the
17 original publication, I simply took what these
18 leading researchers in thermo biology had already
19 derived. That's what --
20
Q. I understand.
21
A. And extrapolated is in quotes in the
22 report. So that's what I meant by extrapolated.
23
Q. And then it says, a notation was made
24 about the extrapolated citation of such references."
73
1
Can you tell us where the notation
2 is made? I mean, how do we know when you're relying
3 on one of these compendiums and not your own review
4 of a given laboratory study report?
5
A. I have to look at Exhibit 16 for that.
6 I'm not really sure I'm --
7
Q. Tell --
8
A. That may have been -- I may have noted
9 that informally, I'm not sure. It's like you can go
10 into a reference, I have to look at the references.
11
Q. Would you prefer to, or can you do
12 that over the lunch hour? Unless you think you can
13 quickly find it.
14
A. I'm not sure, I have to dig into this
15 report a little bit and figure that out.
16
Q. All right.
17
A. I don't know.
18
Q. Moving on then to Question 10.
19
MS. WILLIAMS: At this point, I'd like
20
to -- I mean, I'm not objection to the
21
question, I'm just suggesting that, as I read
22
Question 10, it's a question for Mr. Twait
23
and not Mr. Yoder.
24
MS. FRANZETTI: Well, I was going to,
74
1
actually, before I read it say that this is
2
an example of where having to question
3
Mr. Yoder before having questioned Mr. Twait
4
is a problem. And this question presumed
5
that that questioning --
6
MS. WILLIAMS: We can ask the question
7
of Mr. Twait today, that's fine. I just
8
don't want to take away from your time with
9
him.
10
MS. FRANZETTI: I appreciate that. I
11
think all we need to do for Question 10 is,
12
if Mr. Twait can confirm, whether or not our
13
understanding that the proposed Upper Dresden
14
Pool Aquatic Life Thermal Standards, that the
15
thermal values on which the period average
16
limits are based, were based on the white
17
sucker species literature data from
18
Mr. Yoder's work?
19
MR. TWAIT: Yes.
20
MS. FRANZETTI: Yes, okay.
21 BY MS. FRANZETTI:
22
Q. So with that established, that the
23 period average proposed thermal standards for the
24 Upper Dresden Pool aquatic life use designation are
75
1 based on literature data for the white sucker
2 species, Mr. Yoder, I'm going to move to Question A.
3
Given that it is only one species
4 that determines the numerical water quality standard
5 value, would you agree isn't it very important to
6 determine the validity of that literature data that
7 was the basis for the particular endpoint used in
8 the rankings used to derive the thermal water
9 quality standard?
10
A. I would agree with that.
11
Q. Do you -- can you tell us what
12 technical paper did the white sucker upper lethal
13 value that's being used to determine the proposed
14 thermal standard for the Upper Dresden Pool aquatic
15 life use come from?
16
A. I believe, as I recall, that it came
17 from -- I believe it came from two different
18 studies, one by McCormick and others in 1977 and the
19 other one by Burns and Jones in 1977.
20
Q. Mr. Yoder, can I go on, or are you
21 still looking?
22
A. No, I'm just making sure because what
23 I recall doing, I think I took the average of those
24 two studies.
76
1
Q. Well, that was going to be my next
2 question. Since you're saying it's based on two
3 studies, do you know what you did? Did you average
4 the values?
5
A. I believe I did.
6
Q. Mr. Yoder, can you -- well, let me
7 just ask it: Can you produce copies of those two
8 studies that are the basis of the proposed period
9 average standard for Upper Dresden Pool aquatic life
10 use?
11
A. Not this week. They're in Ohio.
12
Q. But you're willing to make a copy,
13 send it to --
14
A. Yes.
15
Q. -- Illinois EPA, who can, perhaps,
16 distribute it in this proceeding?
17
A. Yes.
18
Q. All right.
19
And in doing so, would you mind
20 checking whether you averaged them or did something
21 else with respect to whatever the literature values
22 were?
23
A. No. I'm reasonably sure I did an
24 averaging --
77
1
Q. Okay.
2
A. -- just looking at the raw data
3 compilation.
4
Q. Mr. Yoder, can you tell us where you
5 looked -- well, first -- strike that.
6
Did you look somewhere in
7 Exhibit 15 to provide me with the names of those two
8 studies that were the basis of the white sucker
9 value?
10
A. I looked in 16.
11
Q. In 16. Okay.
12
Now, can you direct me to where in
13 16 you found that information?
14
A. It's Appendix Table Z(1) and I --
15 again, this does not have page numbers, so it's a
16 little difficult, but...
17
Q. Okay. Well, do I start looking for
18 white sucker, as I look in this?
19
A. Yeah, I think it might help -- look
20 for under Family for catastemday (phonetic). And
21 then, when you find that, you'll find white sucker
22 on the next page.
23
MS. WILLIAMS: I believe it's like the
24
12th page of --
78
1
MS. FRANZETTI: I'm there.
2
MS. WILLIAMS: Twelfth page of when
3
you started the -- family.
4 BY MS. FRANZETTI:
5
Q. And I see white sucker under Species,
6 and here's -- let me cut to the chase. Here's my
7 problem: I go over to the Upper Lethal column, and
8 I just -- there's a whole bunch of numbers there,
9 the 15 in parentheses, 30, and then 8.9 in
10 parentheses, 29, 29, 28.6. I just -- I don't
11 what -- what that grouping of numbers is.
12
A. That's part of the raw data
13 compilation. That's what the authors of those
14 studies reported as their upper lethal endpoint.
15
The numbers in parentheses are the
16 test acclimation temperatures.
17
Q. Okay. So the McCormick 1977 study
18 reported all of those numbers to the left under
19 Upper Lethal?
20
A. Yes. All of the numbers under Upper
21 Lethal.
22
Q. Okay. And when say you took the
23 average, did you start off by taking the average of
24 all those reported values?
79
1
A. No, I took the highest acclimation
2 temperature.
3
Q. So that would be -- there's two 21.1s
4 for acclimation temperature. I think that's the
5 highest; correct, for acclimation temperature?
6
A. Right. There's actually three results
7 reported there. And each one has a footnote.
8
Q. Yes.
9
A. And you have to go back to the key to
10 Appendix Z(1) to find out what those footnotes mean.
11
Q. Okay. But I'm just -- I'm just -- you
12 said you didn't average all of these.
13
You instead took the values for --
14 from the highest acclimation temperature. And I
15 thought that's the number in parentheses?
16
A. Right.
17
Q. Okay.
18
A. But there's three values reported for
19 one of those.
20
Q. Okay. All right. You're a step ahead
21 of me.
22
I just first want to establish
23 that 21.1 is the highest acclimation value there.
24
A. Correct.
80
1
Q. But there's actually two entries for
2 21.1 with at least three values after each one. So
3 do we combine those and then average them?
4
A. That's -- that's an option. And
5 again, I'm recalling what I did. Okay?
6
I cannot tell you from this
7 exactly what I did. The only thing I can do with
8 certainty is go to Appendix Table Z(3) and look
9 under the Upper Lethal column and show that I used a
10 temperature of 31.5 degrees centigrade.
11
Q. All right. I understand you.
12
You can tell me you used 31.5 as
13 the upper lethal value for white sucker, but you
14 really can't tell me exactly how you got that
15 number?
16
A. Well, I -- in looking at -- I recall
17 that I did some averaging.
18
Q. Okay. You can tell me that much about
19 how you got that number?
20
A. Yes.
21
Q. Okay.
22
A. And I could for sure tell you it was a
23 result of averaging some of these numbers.
24
Q. Okay. And that, I guess, would also
81
1 apply -- now that I understand the columns, you may
2 have also thrown in those two values from the -- is
3 that the --
4
A. Bruns and Jones.
5
Q. From the Bruns and Jones 1977 --
6
A. Actually, I'm thinking back and that
7 makes a lot of sense, that I did use that -- the
8 average of those two values.
9
Q. Oh, maybe you just used the average of
10 those two values?
11
A. Yeah. And this was --
12
Q. Okay. All right.
13
HEARING OFFICER: Excuse me,
14
Ms. Franzetti.
15
You may have answered this
16
yesterday, but did you keep any notes or any
17
way that you can track back or provide us
18
with the information on how you manipulated
19
this?
20
THE WITNESS: I think I can, and
21
that's what I'm not sure of. This project
22
ended sometime ago, and we've gone to other
23
things since. But I do have the original
24
notes and documentation in Columbus, at my
82
1
office.
2
HEARING OFFICER: If we could get
3
that, that would be helpful.
4
MS. WILLIAMS: What do you mean "get
5
that"? Like all his notes, or for this
6
species?
7
Because she's asking just about
8
one species of all of these lists of species.
9
So I just want to be clear.
10
HEARING OFFICER: Well, right this
11
second she's asking about one species of all
12
the species. But we've been talking for two
13
days now about how --
14
MS. WILLIAMS: Right.
15
HEARING OFFICER: -- the numbers were
16
generated.
17
MS. WILLIAMS: So you're --
18
HEARING OFFICER: And if we could get
19
some indication, I think that might be
20
helpful.
21
MR. RAO: Ms. Williams, when you said
22
all notes his notes, is it like thousands of
23
pages or --
24
MS. WILLIAMS: I don't know. I don't
83
1
know. I just want to be clear.
2
MR. RAO: We're not asking for like
3
boxes of stuff, but a few pages, something,
4
it would be helpful, because there is so much
5
discussion about it.
6
MS. WILLIAMS: Okay. I think I
7
understand.
8
MS. FRANZETTI: If I may add to that:
9
I mean, the last day and, I guess, almost a
10
half, has been helpful in improving our
11
understanding of what Mr. Yoder did and how
12
he did it. It has filled in a lot of the
13
gray area.
14
However, as we're focusing on
15
right now, the fact is, that his -- one or
16
more of his numbers is taken from his table,
17
whether it's two or three, and put into the
18
Illinois EPA's proposed thermal water quality
19
standards. Nothing is done, nothing is
20
changed about that number.
21
So it becomes critical for us to
22
understand the basis for that number. And
23
with that in mind, I would ask -- I think
24
it's probably directed at Mr. Twait, but,
84
1
obviously, subject to his counsel's
2
agreement -- we need the Illinois EPA to
3
identify for us -- we shouldn't have to go
4
through all this questioning to understand
5
it.
6
Which of your proposed thermal
7
standards numbers are based on the same
8
number as contained in Mr. Yoder's thermal
9
endpoint tables? And for those, I would
10
submit that it is reasonable to ask the
11
Agency with Mr. Yoder, at least for those, to
12
bring forward and clearly identify what were
13
the studies on which -- you know, what
14
studies -- just as we just started to do here
15
for white sucker, what studies are those
16
based on, to the extent there had to be then
17
averaging of those values. If somebody could
18
just give us clear record of how we got to
19
these proposed numbers.
20
MS. WILLIAMS: I think I understand
21
now. And I agree absolutely that to the
22
extent the RAS list we chose focus on a
23
particular most sensitive species that we
24
will provide whatever we can find to support
85
1
those studies for those species that are --
2
MS. FRANZETTI: That are driving the
3
proposed thermal --
4
MS. WILLIAMS: I think that's fine.
5
I'm just concerned, as Mr. Yoder testified
6
yesterday, you can change your input into
7
that database. And once you -- you know,
8
then it may become a different species.
9
I didn't want to be -- this to
10
every study relied on for every species that
11
can potentially become --
12
HEARING OFFICER: No. I think what
13
we're all asking for is that -- what we are
14
asking for is that, if the RAS' that were
15
chosen, if there were five studies and for
16
some reason he discarded three of them and
17
averaged two, that we know that.
18
MS. FRANZETTI: And if I could add, as
19
well, it would also be helpful to know for
20
those, quote, unquote, "most sensitive"
21
species numbers that are driving the proposed
22
thermal water quality standards, are those
23
numbers based, in whole or in part, on
24
extrapolated values.
86
1
And I recognize, Mr. Yoder, you
2
showed me how to do it, and it -- but it just
3
really becomes the difference between this is
4
a lot of work. And given that it doesn't
5
have to be done on every single one of these
6
species, can we at least provide -- and I
7
think it would help the Board, it would
8
certainly help my client -- to know to what
9
extent these proposed standards are based on
10
extrapolated values rather than even a
11
laboratory test result.
12
MS. WILLIAMS: And without trying to
13
go into what Mr. Twait's testimony will be,
14
my understanding then would be we would be
15
looking at two species, white sucker and I
16
think bluntnose minnow, and we will get, to
17
the fullest extent we can, any information
18
about how the numbers that those are based on
19
are based. Or were derived, extrapolated,
20
which studies -- I would expect the Board
21
would even probably need to have those
22
particular studies entered in all of that for
23
those two species.
24
HEARING OFFICER: Yes.
87
1 BY MS. FRANZETTI:
2
Q. Moving on to Question 11.
3
Mr. Yoder, with respect to the
4 number of individuals, this is organisms, that
5 should be tested in order to produce a valid test
6 result, do you agree that every species has a
7 sensitivity range/distribution to stressors?
8
A. Yes, I agree.
9
Q. Okay. Moving then to (b).
10
If you agree, does this suggest
11 that a valid endpoint cannot be derived using only
12 one or two individuals?
13
A. I think that's reasonable to conclude
14 to a certain extent. I think any time -- you know,
15 with any kind of environment sampling -- again, it
16 depends on what kind of test it is.
17
But the fewer observations you
18 have, I guess, the more -- just based on pure
19 statistics -- the more likely to incur some type of
20 error. But I'm trying to put it in perspective.
21
I think it should also be weighed
22 against not having any information at all.
23
Q. And taking the next step, Question C.
24
Would you also agree that an
88
1 endpoint should not be determined using only one or
2 more tests involving one or two individual
3 organisms?
4
A. I think I kind of have to disagree
5 with that one. I mean, these studies get published
6 in peer review journals.
7
And I get the strong impression
8 that's the gold standard that we hold everything up
9 to.
10
Q. I'm sorry, what's the gold standard
11 would he hold everything up to? Whether it's
12 published in a peer review journal?
13
A. Yes.
14
Q. All right. So --
15
A. That tells me that scientists, who are
16 part of that community of work, whoever reviewed
17 that paper, accepted that.
18
Q. All right.
19
A. They might have commented on it, but
20 they accept it.
21
Q. I think I understand. You're saying,
22 "I disagree with that if the test is published in a
23 peer review journal," because then you feel it's
24 been properly vetted to be acceptable among the
89
1 scientific community; correct?
2
A. I think that's what we all operate by
3 in science.
4
Q. Do you know whether your MBI/CABB
5 database from which you derive you inputs for your
6 Lower Des Plaines work, do you know whether it
7 contains any of this type of data?
8
A. Yeah, I think we talked about one of
9 those studies yesterday.
10
Q. And I believe that was marked as
11 Exhibit 18 as an example, that your database does
12 contain such studies?
13
HEARING OFFICER: We don't have an
14
Exhibit 18.
15
MS. DIERS: I think 17.
16
HEARING OFFICER: Seventeen.
17
MS. FRANZETTI: Seventeen. Sorry, I'm
18
bad on exhibit numbers.
19 BY THE WITNESS:
20
A. That's correct.
21 BY MS. FRANZETTI:
22
Q. All right. Moving on to E on Page 7
23 of your prefiled testimony. You state that, "Much
24 of the new data that we found were based on CTM
90
1 studies."
2
Is it correct that a CTM value,
3 albeit not an accurate one, can be obtained based on
4 testing only one fish?
5
A. I would assume that's possible.
6
Q. Are you assuming it or do you know?
7
A. I don't know for sure, but you can do
8 a CTM test on one organism.
9
Q. Okay.
10
A. Yes, I know that for sure.
11
Q. All right. Do you know whether,
12 moving on to the next one, but paraphrasing it, do
13 you know to what extent your database contains those
14 type of CTM studies done on only one fish?
15
A. Well, again, the study, the exhibit we
16 talked about is one such example, although, I
17 believe it was two fish.
18
Q. But you can't really tell me to what
19 extent your database --
20
A. Not without going back and looking at
21 each individual literature source. And again, the
22 standard we use for acceptability was the
23 publication.
24
Q. Moving on to Question 12 then.
91
1
Did you ever conduct sensitivity
2 analysis to evaluate the level and significance of
3 the many sources of uncertainty in your model?
4
A. I think the -- we did a degree of that
5 in the -- in Exhibit 15, by looking at the changes
6 in the RAS membership, at least, and how that
7 affected the endpoints.
8
Q. And we went over that yesterday.
9 You're talking about when you put stone cat or you
10 take stone cat out; correct, when you say changes in
11 the RAS?
12
A. Yes. And that, as we discussed
13 earlier in the day, the general use original RAS
14 also incorporate different thermal endpoint data
15 because it's based on the 1978 version of the
16 database.
17
Q. Any other sensitivity analyses that
18 you believe were applied?
19
A. No.
20
Q. Moving on to K. Temperature criteria
21 options. This begins at Page 10 of your prefiled
22 testimony.
23
Question 1, how did you decide
24 what period of time the period average temperature
92
1 criteria should cover?
2
A. If I could clarify, it seems to me
3 you're talking about the mid-June to mid-September
4 time period?
5
Q. No. Actually...
6
A. Or all of them?
7
Q. Well, all of them in the sense that --
8 let me back up and explain the basis for that
9 question.
10
Sometimes the period average is --
11 covers as long as a month, other times it covers
12 only a couple of weeks. And I couldn't really
13 discern what decides whether the period average is
14 going to cover a whole month or it's going to cover
15 some period of time less than that?
16
A. I understand now. The periods are
17 intended to reflect a couple of things: One, that
18 the summer averaging period, which really goes over
19 about a three-month time period, from mid-June to
20 mid-September, is intended to reflect the period of
21 time where you potentially have the highest thermal
22 stress, because that's the time of highest ambient
23 temperatures and generally lower river flows for
24 more extended periods of time, both of which can
93
1 result in the highest temperatures seen on an annual
2 cycle.
3
So that was one aspect of it. The
4 other aspect was -- and the reason some of these
5 only occupy an approximate two-week period, is
6 because during the fall -- the fall to winter to
7 spring cycle, the temperature curve is changing very
8 rapidly.
9
Q. It changes rapidly from season to
10 season, is that what you mean, when you say from
11 summer to fall to winter?
12
A. Yeah. So that -- so you need to --
13 you need to chop the time period up into smaller
14 increments so that you don't have like a maximum
15 that is exceeded for -- you know, if we did it on a
16 monthly basis, say, in October, did it for the whole
17 month, well, you might exceed that in early October
18 and be below it in late October.
19
So it was just -- and gets back to
20 one of criterion, to try to maintain the normal
21 seasonal temperature cycle for a temperate warm
22 water river. So this is based on looking at
23 temperature changes through time.
24
And again, we did that in
94
1 Exhibit 16. And you can -- if you want me to point
2 out one of the graphs, it kind of illustrates the
3 concept, I can.
4
Q. Sure that doesn't sound like it would
5 take us a long time.
6
And, I'm sorry, did you say
7 Exhibit 16?
8
A. Yes.
9
Q. Page 42, by any chance?
10
A. I'm not sure that's a good example.
11
Q. Okay.
12
A. I'm trying to find a good example
13 here. Maybe Page 31 would be better to look at.
14
Q. Page 39?
15
A. Thirty-one.
16
Q. Thirty-one?
17
A. Yes, 31. Actually, let's try Page 32,
18 that may even be better.
19
Q. At the top of the page it's ORSANCO
20 Temperature Criteria Re-evaluation, January 22,
21 2006. And this is Figure 4?
22
A. That's correct.
23
Q. Just so everybody is with us.
24
Go ahead, Mr. Yoder.
95
1
A. Okay. Let's take the upper left-hand
2 graph as an example. And what this graph
3 illustrates is the --
4
Q. This is the -- I'm sorry, just to make
5 sure everybody is with us. It's the Ohio River
6 temperature data Markland Pool --
7
A. Yes.
8
Q. -- 1994 to 2003?
9
A. Yes, that's correct.
10
And over that time period -- what
11 this is, it's a frequency plot of all the uncertain
12 temperatures by month of the year for all 12 months
13 of the year. So each one of those -- it's called a
14 box and whisker plot.
15
And the -- to explain, the box
16 itself has lines. It has a line through the middle,
17 which is the median or the 50th percentile value.
18
The top of the box is the 75th
19 percentile.
20
Q. And the box, being the shaded area,
21 and that would be, what I would call, the whisker
22 coming out of the top of the box?
23
A. Right. That's the whisker -- it's the
24 box, it's the shaded area. The bottom of the box is
96
1 the 25th percentile.
2
The whiskers -- the bottom line
3 and the horizontal dash, that's called the
4 whisker -- it is the statistical minimum. The
5 whisker on top of the box is the statistical
6 maximum.
7
If you see dots also above the
8 whisker, those are statistical outliers, so...
9
Q. Oh, we got a lot of dots in February;
10 correct?
11
A. More information that you needed.
12
Q. So we have a lot of -- whatever
13 reason, there are a lot of outliers in February,
14 just to make sure everybody knows what you're
15 talking about.
16
A. We don't -- to illustrate the point,
17 we don't need to get into all of that.
18
Q. Right.
19
A. So you can see that in January and
20 February -- let's just look at the median
21 temperature for simplicity.
22
The temperatures are obviously the
23 lowest in January, they're next lowest in February,
24 they're next lowest -- you have to go all the way to
97
1 December. And then, as we proceed into the late
2 winter, early spring months, the temperatures start
3 to increase rather at a much faster rate.
4
And so, all the way up into June
5 and July, they tend to flatten out in August,
6 September. And then, beginning in September and
7 October through November and into December, they
8 have the reverse effect where they decline very
9 rapidly.
10
So that's just simply our
11 four-season climate at work. And so, the reason --
12 to convert this into the way criteria -- seasonal
13 criteria are generally expressed as some kind of a
14 period average and a maximum not to be exceeded,
15 then you have to make sure that your maximum or your
16 average is not being exceeded due to natural
17 circumstances, as much as possible.
18
So that's why, because of the
19 rapid increase in the spring and rapid decline in
20 the fall, you need to divide those time periods into
21 smaller increments. So that you have -- in other
22 words, instead of having three steps to walk up, you
23 have six steps. You're basically trying to --
24
Q. Right. And if I can --
98
1
A. -- smooth it out as much as you can
2 and still have something that's translatable into a
3 table in a set of water quality standards.
4
Q. Right.
5
A. Ideally, you would do this on some
6 continuous basis, but I'm not sure we figured out
7 how to write water quality standards like that yet.
8
Q. And if we can boil that down into my
9 level as I look at this graph, if I see a tall box,
10 like I do for June, indicating a significant swing
11 from the beginning of the month to the end of the --
12 or during the month, of about ten degrees, it looks
13 like, from 70 to 80 degrees, am I -- if I'm using
14 the 25th up to the 75th percentile?
15
A. Which month are you looking at?
16
Q. I was looking at June. I thought I
17 was looking at June?
18
A. Yes.
19
Q. Okay.
20
When you have the wider box, or
21 taller, thicker box, if that's an indication, you
22 need to think about making your -- dividing up your
23 period average for that month into smaller segments
24 than a period average, one value for the entire
99
1 month; is that correct? Is that the way to kind of
2 visually get sense of what these charts are showing
3 us?
4
A. Yes. I mean, in all likelihood, the
5 actual raw numbers that make up the lower half of
6 that box and whisker occurred in early June, and the
7 numbers that went into make up the upper half of
8 that box and whisker occurred in later June or
9 during the onset of summer.
10
Q. Right. So here for -- did you -- I'm
11 sorry, I don't -- I just, quite frankly, don't
12 remember off the top of my head: Did you make
13 recommendations to the Illinois EPA with respect to
14 what should be the intervals for the thermal period
15 average standards they were developing?
16
And I think, as you know, if you
17 look at the proposed thermal standards, they are --
18 throughout the year, the interval varies. Sometimes
19 it's a whole month, sometimes it's a two-week
20 period.
21
Did you give them recommendations
22 on how to do that? You know, whether January, the
23 period average, should be for the whole month, or
24 should January be divided into two intervals for
100
1 period average purposes with a different period
2 average at the beginning of the month versus the
3 last couple of weeks of the month?
4
A. I don't mean to be a stickler on
5 semantics, but we -- these aren't recommendations,
6 they're options.
7
Q. Okay. You want me to use the term
8 "option"? Okay.
9
A. I would prefer that, thank you.
10
Q. I'm sorry, I'm not purposefully --
11
A. I understand.
12
Q. -- misusing the terminology.
13
Okay. Did you give them options?
14
A. Okay. Exhibit 15 has two tables,
15 Tables 4 and 5, Table 4 on Page 16. And it's part
16 of this methodology, it's to produce the table by
17 the monthly or bimonthly increments and state what
18 the average and maximum options would be and to also
19 site what the source of those options are.
20
And so, yes, Table 4 shows that
21 and also Table 5 also shows that. Table 5 is just a
22 more, I guess, a larger smorgasbord of options.
23
Q. Okay. So in the sense that both of
24 these tables utilize the same time periods for the
101
1 proposed individual period average values, you --
2 this was the option you gave them, that January the
3 period average should be for the whole month.
4
The same for February, March, but
5 beginning in April, the option is April should be
6 divided into at least two different period average
7 values; correct? Because I don't see a difference
8 between what's on 4 and 5 in terms of how the period
9 average intervals --
10
A. No, they are the same. You're
11 correct, they are the same.
12
Q. So in that regard, that's all I'm
13 saying, is that that's how you thought -- how you
14 thought, for purposes of the Lower Des Plaines
15 River, the period averages should be divided
16 throughout the calendar year; correct?
17
A. Again, I'm sorry, I don't mean to be
18 so picky. But what I was doing here was simply
19 transferring the customary way of expressing the
20 methodology output.
21
Q. Okay. Let me try and clarify what
22 your -- I think what you're telling me is, whether
23 or not this was the Lower Des Plaines or it was the
24 Hudson River in New York, your intervals, as I'm
102
1 calling them, whether you have a full month for the
2 period average or whether you divide it in two,
3 would be the same?
4
A. Yeah, I think it was reasonable to
5 conclude that we're dealing with a temperate Midwest
6 river, and it would have the same general seasonal
7 temperature cycle, yes.
8
Q. Okay. Now, just to finish up on that,
9 I understand this is your work. If I want to
10 determine whether that this is generally accepted
11 among the scientific community, can you site me to
12 anything where I can look up the concept of period
13 averages and how they should be applied?
14
A. You know, I'm not sure. There's --
15 the first thing you make me think of is pointing to
16 an analysis of all the state standards that appears
17 in Exhibit 16.
18
And there are some that use
19 similar period averages, not all. Most states
20 are -- have very simple temperature criteria.
21
It's -- I doubt if it's something
22 you're going to see in the peer-reviewed scientific
23 literature, because it's really more of a management
24 application. It's very applied, and it's just a --
103
1 this is an outgrowth of the Ohio methodology, but
2 again, the -- all the users or people affected by
3 that were very aware of this. And I think we all
4 agree, that yes, there are these seasonal cycles and
5 we need to divide the year up like this to avoid the
6 obvious problems.
7
MS. WILLIAMS: I apologize if I missed
8
it, but did you refer to a page in Exhibit 16
9
for that table you're taking about?
10 BY THE WITNESS:
11
A. Oh, for the State summaries? It
12 starts on --
13
MS. WILLIAMS: Well --
14
MS. FRANZETTI: That's okay.
15
MS. WILLIAMS: This is a question I
16
think I wanted to bring up later in redirect,
17
that, typically, the Board will ask the
18
Agency to give them as much information as we
19
have about what's out there in the different
20
states.
21 BY MS. WILLIAMS:
22
Q. So if you -- could you tell us whether
23 there's information in your Exhibit 16 about what's
24 out there for other states and their temperature
104
1 criteria?
2
A. Yes, beginning on Page 11 of
3 Exhibit 16 and going through Page 23, of that
4 exhibit, is a summary of, at that time, the current
5 state status of state temperature criteria.
6
Q. Could you just summarize, generally,
7 for the Board what they would find by setting out
8 those tables? If it's possible to generalize about
9 the State tables.
10
A. Well, what most state temperature
11 standards, at least sort of a preponderance of the
12 trend in assembling this table, what I was most
13 impressed by is most states have -- they have a --
14 some still have the amount of increase above
15 ambient, which I believe Illinois still has, and
16 they also have a summer season average and maximum
17 temperatures and some lack that altogether. But it
18 really goes back to what the National Academy of
19 Sciences recommend in 1972, and that's really what
20 most -- most state water quality standards, their
21 first set of water quality standards, will usually
22 be based on that document.
23
Q. And have many states updated their
24 standards since 1972?
105
1
A. No, they have not. Very few states
2 have up, what I call, upgraded the -- upgraded their
3 standards beyond the recommendations of that report.
4
MS. WILLIAMS: Thank you.
5 BY MS. FRANZETTI:
6
Q. Mr. Yoder, turning to Question 2.
7
With respect to the term "daily
8 maximum," as you use it, is this intended to be a
9 temperature level that is never exceeded at any time
10 in the water body, or is it intended as a daily
11 average value?
12
A. I think that's up to the people that
13 convert these into standards.
14
Q. You don't have a -- do you have a firm
15 opinion on that or no? It's -- it depends?
16
A. My opinion would be, if these get
17 exceeded, is everything going to crash? No.
18
Q. Okay. Question 3.
19
On Page 10 of your prefiled
20 testimony -- give me just a moment here.
21
MR. ETTINGER: Can I just follow-up on
22
that one second?
23 BY MR. ETTINGER:
24
Q. You said if these daily maximum are
106
1 exceeded, everything is not going to crash. How far
2 would you be willing to see him go over the daily
3 maximum before you'd become concerned that things
4 would crash?
5
A. Well, in -- again, Midwest
6 temperatures, I think to kind of distill this down
7 into an understateable concept, I think that -- and
8 I don't want to call a battle ground, but I can't
9 think of anything else to call it. I guess it's the
10 range of temperature where things kind of get at the
11 precipice of bad things starting to happen.
12
And I look at that as a range of
13 somewhere between 86 degrees to 90 degrees
14 Farenheit. And you get too much beyond that range
15 and, yeah, things are going to start precipitously
16 happening.
17
But it's also a function of how
18 often it happens, the duration of the exceedance,
19 were there any opportunities for temperatures lower
20 than that range, like a cool-down period. I think
21 some of the more recent studies on thermal tolerance
22 suggest that, you know, fluctuating temperature
23 regimes, like we really do have in nature, the
24 exceedances have to be tempered by almost equivalent
107
1 magnitudes below those numbers.
2
So we can't just take a river up
3 to the standard, keep it there forever. I mean,
4 there's this (indicating).
5
So it's a matter of frequency and
6 duration and there's no silver bullet for
7 determining that, I don't think. So what do we have
8 left to do is to set a maximum of the management
9 goal in operating -- that's the reality.
10
Q. You said '86 is where things start bad
11 happening. Were you just talking about the summer
12 or...
13
A. Yes.
14
MR. DIMOND: That misstates his
15
testimony.
16
MR. ETTINGER: I'm sorry. Whatever.
17 BY MR. ETTINGER:
18
Q. Why don't you state your testimony.
19 Were you discussing the summer when you were talking
20 about '86, or were you discussing the whole year?
21
A. Well, it -- this summer was a
22 stressful summer period.
23
Q. Would you be comfortable with
24 temperatures going up to 86 in March?
108
1
A. No, I think that brings in other
2 concerns besides precipitating a lot of avoidance in
3 high heat stress effects.
4
Q. If the temperature went up to 86 for a
5 few days in March, what effects would that have?
6
MR. DIMOND: Objection. Lack of
7
foundation and lack of expertise.
8 BY MR. ETTINGER:
9
Q. You may ignore his objection. Please
10 answer the question.
11
HEARING OFFICER: Excuse me,
12
Mr. Ettinger, you don't get to make that
13
decision.
14
MR. ETTINGER: I'm sorry.
15
HEARING OFFICER: I mean, we've been
16
asking him several questions, I would like
17
some explanation of why you think he lacks
18
the expertise.
19
MR. DIMOND: There's no evidence that
20
he's done any studies to support an opinion
21
on that. And, clearly, I don't think -- no
22
indication that the Agency asked him to give
23
expert testimony on that issue.
24
MS. WILLIAMS: On whether fish are
109
1
more stressed in summer or the winter or --
2
is that...
3
HEARING OFFICER: Mr. Dimond, you did
4
ask a question earlier, I just want to be
5
sure we have your name on the record.
6
I think I'm going to allow it,
7
with that caveat.
8
MR. ETTINGER: Could you read the
9
question back, please?
10
(WHEREUPON, the record was
11
read by the reporter.)
12 BY THE WITNESS:
13
A. Well, it could have the same effect
14 that it might have in the summer, maybe even worse.
15 Especially if the ambient temperatures were
16 consistent with what they usually are in March,
17 that's quite a -- that's a much larger increase in
18 temperature of what usually happens in the summer.
19
So fish being acclimated to lower
20 temperatures would react, I think, more to 86
21 degrees in March than in the summer. There's also
22 some issues with -- this is a time, if not of
23 reproduction, then just before reproduction. And
24 there are some studies out there that suggest that
110
1 fish need to have cold temperatures in the winter so
2 that they can produce their -- have enough energy to
3 produce off spring. It's a term called
4 Gametogenesis. And so, there is some evidence,
5 especially the purchase persons. I think one study
6 cited they need extended periods of 50 degrees or
7 less to complete this part of their life cycle.
8
MS. FRANZETTI: Can I return to my
9
line of questioning now? Okay.
10 BY MS. FRANZETTI:
11
Q. No. 4.
12
With regard to the calculation of
13 daily maximums and period averages for the nonsummer
14 months, why is your recommended basis the use of
15 background temperatures rather than using the same
16 approach as was used for the summer months?
17
Maybe back up, make sure
18 everybody's with us and...
19
A. I understand.
20
Q. Your nonsummer month options are based
21 on background temperature, not -- and are not based
22 on these thermal endpoint values that we have been
23 discussing up to now; correct?
24
A. Largely correct, yes.
111
1
Q. Okay. So that's what -- that's what
2 my question is based on. Why in the winter do you
3 turn to a different approach on which to derive
4 thermal water quality standards?
5
A. Well, I think there's a number of
6 reasons for that. One is -- is just the, I think,
7 reasonable assumption is we maintain normal seasonal
8 cycles so that we will maintain the seasonal -- the
9 nonsummer seasonal functions of the organisms.
10
There's really no reason to
11 believe that -- well, let me back up.
12
The second issue is, there isn't a
13 lot of data -- I don't think there's an equivalent
14 amount of information about those -- the affects of
15 temperature on those other activities as there is on
16 the -- what I would call the -- more of the survival
17 avoidance-related issues that we encounter in the
18 summer and during the less stressful months. It
19 doesn't mean that those things aren't important
20 though.
21
The other thing is if somebody --
22 and we did list in Appendix Table Z(3) of
23 Exhibit 16, some spawning periods and associated low
24 and high temperatures with those. But that doesn't
112
1 mean that if those are exceeded, that somehow
2 spawning is going to not happen.
3
It may just take place earlier or
4 later in the season. And there's enough natural
5 issues involved that do affect the success in any
6 given year of spawning of a particular species.
7
So it's kind of hard to separate
8 out what's, you know, artificial versus -- and so
9 on. So I think taking that all together, we haven't
10 been too -- I don't want to say we're not concerned,
11 but we haven't been as preoccupied with the
12 nonsummer months as we have been with the more
13 stressful.
14
Now, I can see some who say,
15 "Well, isn't that preoccupation with lethal
16 endpoints, and I think there is some validity to
17 that. I think our whole water quality criteria
18 culture has preoccupation with toxicity. And maybe
19 we need to pay attention to other things.
20
And I think some of the comments
21 that I did get from Region 5 were, "Hey, we've got
22 to be concerned about some of these nonsummer season
23 effects," and it does cause me to go look at that a
24 little more closely. But again, I think if we
113
1 adhere to what is truly an ambient seasonal cycle,
2 that we will protect those things.
3
Q. Well, let me ask you this: With
4 respect to your use of background temperatures to
5 establish the nonsummer months standards, is that a
6 conclusion you have come to in the more recent past?
7 I mean, did you used to do it differently, in terms
8 of establishing the nonsummer months standards?
9
A. No, it's the way that we did it with
10 the 1978 version of the methodology.
11
Q. Okay. All right.
12
A. And so the rationale --
13
Q. I wasn't sure by that reference to
14 talking to U.S.EPA, I went back, thought about it
15 some more, I thought maybe --
16
A. Well --
17
Q. You changed your mind.
18
A. -- maybe the thought process about
19 what we're doing has matured a little bit. Because
20 I think in 1978 it was the absence of endpoints
21 dealing with the nonsummer season more than it
22 was -- I mean, I think there was always this notion
23 that, yeah, we need to maintain normal seasonal
24 cycles.
114
1
Q. Okay. So that's really what's driving
2 it, is the desire to maintain normal seasonal
3 cycles; correct? It may be a little over
4 simplified, but --
5
A. But for ecological reasons. Not just
6 because -- to maintain the physical --
7
Q. And is another way to say that because
8 we think it's good for the fish to do that?
9
A. Yes.
10
Q. Okay. With respect to -- I'm sorry,
11 one more thing there. And I think if I understood
12 you, that's the part -- generally speaking, you
13 don't have as much study data, people just haven't
14 looked at this nonsummer period as much as they have
15 focused on the summer periods?
16
A. Yeah. And I think I'd refine that a
17 little bit more. I think it's because scientists
18 tend to look lethal endpoints --
19
Q. Right.
20
A. -- more than crowning endpoints.
21
Q. I just didn't want to repeat
22 everything as you said. Exactly. Because, as you
23 said, you think the driving force has been
24 lethality. And that tends to occur in the summer
115
1 not the winter, generally speaking. Okay.
2
Now, recognizing that's the basis
3 of your option to use background temperatures rather
4 than the same approach as was used -- or the same
5 option you gave IEPA for deriving the summer
6 temperatures. For the nonsummer months
7 temperatures, what is the scientific basis for your
8 suggestion that the geometric mean of the background
9 temperatures should be used for the period average
10 temperature criteria? Why the geometric mean?
11
A. Well, as I recall, that was an outcome
12 of the ORSANCO committee deliberations on our study
13 that we did for them. And there was a lot of
14 discussion about how do you pick a period average.
15
Because you don't get the same
16 average temperature every year. It goes -- it can
17 up and down. But you have to capture that somehow
18 in standards and not have them exceeded.
19
So how do you take an ambient
20 temperature database and derive an average that kind
21 of reflects the upper end of that range, and it was
22 felt that geometric mean did that. So that's why it
23 was selected.
24
Q. And, I'm sorry, one more point.
116
1
The reason one goes to using
2 background temperatures is because they're thought
3 to be the most -- that's what's representative of
4 what the normal seasonal cycles would be?
5
A. Well, yeah. It is what the normal
6 seasonal cycles are. So that's the rationale for
7 that.
8
Q. Moving on to Question 6 for the
9 nonsummer months temperatures, what is the
10 scientific basis for your suggestion that the 98th
11 percentile should be used for the daily maximum
12 temperature criteria. So now I'm switching.
13
I'm not talking about period
14 average. Now, this -- for which you were advocating
15 geometric mean of the background temperatures, now
16 switching gears to the daily maximum criteria, and
17 there you don't recommend the geometric mean,
18 obviously, your option is the 98 percentile should
19 be used.
20
Explain to us why you think, you
21 know, that's the right thing to use?
22
A. Well, again, that was an outcome of
23 the ORSANCO committee deliberations. And the reason
24 for choosing a percentile rather than saying, well,
117
1 let's just take the maximum value ever recorded, is
2 a couple things.
3
One, you want it to be -- you want
4 it to represent the max, but you don't necessarily
5 want that ruled by potentially outlying values.
6 Those outlying values could -- I mean, to say there
7 isn't measurement error in these databases is being
8 a little bit naive.
9
I mean, there is the potential for
10 measurement error. So that's a way of blunting some
11 of that and being mildly conservative about that
12 data.
13
And we do try to examine the data
14 for outliers. And you can pretty much spot an
15 erronous value.
16
But we don't always have the
17 opportunity to go back to the source of that data
18 and track that down. It's very time consuming and
19 beyond our resources.
20
Q. Right.
21
A. So using something like a 98th
22 percentile is what we feel is a reasonable approach
23 to capturing that -- I suppose the problem then that
24 that might precipitate is, well, what about the
118
1 other two percent of the time that you've seen it,
2 potentially? So -- but I think that's just the
3 nature of parameters, like temperature.
4
Q. Moving on to Question 7.
5
Have your suggestions for setting
6 nonsummer months thermal criteria been used by any
7 other state, and if so, where?
8
A. The only ones I know of are Ohio and
9 ORSANCO. There may be some others in this state
10 compendium that I mentioned before.
11
Q. Moving on to Question 8.
12
Is the concept for setting
13 nonsummer month thermal criteria is to maintain the
14 normal seasonal cycles, which I think is what you've
15 said, is the normal seasonal cycle what the water
16 body ambient data has shown to be normal for that
17 water body? And if not, then tell me how you're
18 using the term "normal" in the phrase "normal
19 seasonal cycle"?
20
A. Yeah, it reflects what we would --
21 another way to describe it is what's the least
22 impactive background type setting. And in the
23 absence of having that, if you're in a thermally
24 altered water body, you can use sort of the best
119
1 that's there, try to find a site that's not directly
2 impacted by our artificial influences, or you can
3 turn the modeling, predictive modeling.
4
Q. What if you're in a effluent dominated
5 water body? What effect does that have on this
6 establishment of background temperatures, et cetera?
7
A. That's where part of the decision
8 about what you define as background water quality
9 has to -- take that into account, I would believe,
10 and...
11
Q. So that is a relevant consideration --
12
A. It can be.
13
Q. -- in determining what constitutes
14 background?
15
A. It can be.
16
Q. Okay. You would not think it is
17 unreasonable to take into account the effluent
18 dominated nature of a water body?
19
A. Again, it depends on what that
20 effluent is. But I'm not sure I would want to
21 include thermally altered -- heavily thermally
22 altered data into that. But as much reflecting the
23 background as possible.
24
Q. Okay. I think what you're saying is,
120
1 if my use of the term "effluent dominated" includes
2 the effluence from an electrical generating station,
3 that you won't consider?
4
A. I would not recommend using that.
5
Q. If it means the effluence from a
6 municipal waste water treatment plant, that you'll
7 allow; correct?
8
A. Perhaps. But that's a decision the
9 management has to make in consideration --
10
Q. Well, I mean, I understand all this is
11 up to them. I'm trying to understand what you would
12 say is reasonable to be considered in terms of
13 establishing what your background, what are the
14 normal seasonal cycles.
15
And now I'm applying it to I want
16 you to assume we're dealing with an effluent
17 dominated water body. And now -- and whether, in
18 that situation, you can look at what the effluent is
19 that dominates that water body for determining
20 what's normal.
21
And I think what you're telling me
22 is that, yes, you can, but I think you are saying
23 but some effluents it's okay to look at to determine
24 what's normal and some it's not. And that's fine.
121
1
I'm just trying to understand how,
2 you know, you apply these concepts to an effluent
3 dominated water body.
4
A. Again, I think that's a decision the
5 management agency has to make. I don't think I can
6 make that in this case.
7
Q. All right. No. 9.
8
Can you explain how maintaining
9 the normal seasonal cycles will protect essential
10 functions, such as growth gametogenesis and spawning
11 as stated on Page 1 of your prefiled testimony. And
12 if you couldn't tell from that, including explaining
13 to me what gametogenesis means?
14
A. I did just cover some of that in my --
15
Q. You did a little bit.
16
A. -- rationale, but I'll do it again.
17
Okay. The rationale, again, is,
18 if we maintain normal seasonal cycles, we're
19 maintaining the seasonal cycles within which these
20 organisms have developed through time, basically.
21 So if we do that, I think it's reasonable to
22 conclude that we're going to ensure that these
23 functions that take place during those time periods
24 will also be maintained.
122
1
Q. Okay.
2
A. Without setting, you know, no
3 exceedance numbers, you know, the same way we do in
4 the summer season.
5
Q. And gametogenesis?
6
A. Gametogenesis is the process by which
7 the organism prepares itself for production. So in
8 female fish, that's the development of eggs.
9
It takes a lot of energy to do
10 that. And if they're not devoting the energy to
11 that and devoting it to something else, like -- and
12 these are cold blooded organisms.
13
So if they have warm temperatures
14 in the winter, they're going to be more active. And
15 they're going to devote energy to being active and
16 not to reproduction.
17
That's sort of the concept that's
18 involved there. So, as odd as it may seem, fish
19 need cooler water at times, too. I mean, they...
20
Q. I understand.
21
A. Okay.
22
Q. Okay. Question 10.
23
If a water body does not provide
24 the necessary habitat or conditions for spawning,
123
1 should that affect how the summer and nonsummer
2 month thermal month criteria are derived?
3
I'm asking you to assume that the
4 water body in question doesn't have the necessary
5 habitat or other conditions to allow for spawning.
6 It just doesn't occur in that segment of the water
7 body to which this question applies.
8
So then, my question is, can you
9 take that into account, does that affect how the
10 summer and nonsummer month thermal criteria should
11 be derived? In other words, spawning doesn't occur,
12 I don't have to protect for spawning.
13
A. It possibly could if it's so severe
14 that you have so few fish spawning. Perhaps you
15 could focus on those species and do something
16 different.
17
But I think -- I have a hard time
18 believing that there's too many waters out there
19 where some spawning isn't taking place.
20
MS. WILLIAMS: Can I ask a follow-up
21
that I think is related to what she's getting
22
at?
23 BY MS. WILLIAMS:
24
Q. Can you tell us which life stages of
124
1 fish are generally most sensitive to temperature or
2 thermal stressors?
3
A. Well, the common knowledge is that
4 for -- you know, for the high stress periods, that
5 adults are the most sensitive -- more sensitive than
6 juveniles. And that's the -- of laboratory studies,
7 that it produces tolerance endpoints that are higher
8 than what adults can deal with.
9
That's a reversal of logic from a
10 lot of other concern, but that's been a longstanding
11 belief in the thermal community. But turn that
12 around in the -- I'm not so sure that applies to the
13 nonsummer season period, I'm not sure there's much
14 data that I'm aware of out there that would support
15 it one way or the other.
16
HEARING OFFICER: Mr. Ettinger, your
17
follow-up?
18
MR. ETTINGER: Yes.
19 BY MR. ETTINGER:
20
Q. Regarding areas in which we're not
21 concerned with fish reproduction in the nonsummer
22 months, are you familiar with the phenomena that's
23 been referred to as "cold shock"?
24
A. Yes.
125
1
Q. Would that be a concern with regard to
2 temperatures in the nonsummer months?
3
A. Yes, it is.
4
Q. And does cold shock affect adult fish?
5
A. Yes.
6
MR. ETTINGER: Thank you.
7
HEARING OFFICER: We need you to
8
explain what cold shock is, please,
9
Mr. Yoder.
10
THE WITNESS: Cold shock is when a
11
fish is -- actually, it's the reverse of the
12
high end lethality. There's also a low --
13
there's also a lower incipient lethal
14
temperature.
15
And fish have great difficulty
16
acclimating to rapidly dropping temperatures,
17
so the classic cases are where you have a
18
water body that's warmed up during the cold
19
months -- and does a couple things. One is,
20
it raises the activity of the organisms.
21
It also attracts a lot of fish.
22
They like to be warm.
23
And the danger is that, if that
24
would suddenly cease -- say it's a discharge
126
1
and it would suddenly cease, and they were
2
subjected to ambient temperatures that are
3
15, 20, 30 degrees lower, it's lethal.
4
HEARING OFFICER: Thank you.
5 BY MS. FRANZETTI:
6
Q. Moving on to No. 11.
7
Are there any biological data
8 assessments or sympathies that suggest that
9 maintaining the normal seasonal cycle requires
10 achieving the background ambient temperatures
11 uninfluenced by man? In other words, that that's
12 what you've got to use as background, something that
13 is not influenced by man?
14
A. In the strictest sense, no, there
15 isn't.
16
Q. Moving on to Question 12.
17
On Page 12 of your prefiled
18 testimony it stated that occasional thermal
19 exceedances are inevitable and may not necessarily
20 result if a biologically impaired use. A conclusion
21 that I have reached is that temperature excursions
22 should be evaluated with direct biological measures
23 in a receiving water body that is representative or
24 reference or least impacted conditions.
127
1
My first question is that it's
2 based on the fact I'm not understanding the first
3 sentence versus the fully quoted second sentence.
4 Is something missing there or -- you know, that's
5 what my question is. Is the second sentence
6 intended to follow from the first, not understanding
7 that part of your testimony, if you could clarify.
8
A. Yeah, I think the two are -- there's a
9 train of logic there that --
10
Q. Could you try and clarify what you
11 mean?
12
A. Well, yes. It -- temperature is one
13 of those parameters that we manage for that, taken
14 literally, an exceedance would imply an impairment.
15 Certainly in the legal realm, it could be directly
16 translated that way.
17
But in the real world, it probably
18 isn't. But it depends on the magnitude and severity
19 of the exceedances.
20
And that's where we would advocate
21 looking at the affect of temperature also on -- in a
22 field setting. And I talked about this yesterday,
23 about what constitutes the proper design of a field
24 derived understanding of thermal effects.
128
1 BY MS. WILLIAMS:
2
Q. Can you tell us -- you said it's one
3 of the class or something. Are there other examples
4 that are similar to temperature in what you're
5 describing?
6
A. Yeah, there's other parameters where
7 you can get excursions and not necessarily have
8 harm. Dissolved oxygen is another one.
9
And I'm talking about, you know,
10 you go out, you measure an exceedance and you
11 compare it to the water quality standard. And if
12 there's ample precedent that that has been used to
13 design impairment status and precipitate at the MBO.
14 So -- or, you know, how real is that?
15 BY MR. FRANZETTI:
16
Q. How real is that?
17
A. How real is it, is the question that
18 some ask.
19
Q. How real is the affect of the
20 excursion or how real is --
21
A. Yes.
22
Q. Okay.
23
A. Because that's an assumed effect,
24 that's an indirect -- it's an indirect assessment.
129
1 The assumption you're making is that criterion is so
2 sacrosanct, that it absolutely guarantees an
3 impairment.
4
Q. And you're saying not necessarily so.
5
A. I'm an advocate of -- that with a bio
6 assessment.
7
Q. Okay. Just again, and I'm just going
8 to combine (a)-(d).
9
Has that been done? Can we look
10 at studies that say what is that biological effect?
11
A. Yes. There's -- as I talked
12 yesterday, we accepted what we considered to be
13 adequately designed field studies into the thermal
14 affects database.
15
Q. Well, that goes to your endpoints,
16 other than lethality. Is that what you're referring
17 now to, studies that --
18
A. Yes, they would not -- those studies
19 you could not derive a lethal endpoint.
20
Q. I understand.
21
HEARING OFFICER: If you're -- wait,
22
we have a follow-up.
23
Mr. Howe, you have a follow-up?
24
MR. HOWE: Peter Howe.
130
1 BY MR. HOWE:
2
Q. Yesterday you mentioned on the
3 Muskegon River, that the temperatures got up to 92
4 to 93 degrees. And that the IBI was dropped and was
5 probably due to the red horse species disappearing.
6
Couldn't you have predicted that,
7 based upon the knowledge of the literature and the
8 knowledge of that discharge temperature?
9
A. I think so. I mean, it goes back to
10 what I'd said for, you know, the range where you
11 start to see things happen between 86 and 90
12 degrees, generally being the place of concern. And
13 yeah, you could expect that.
14
MR. HOWE: Thank you.
15
HEARING OFFICER: All right. Let's
16
take an hour for lunch.
17
(WHEREUPON, a recess was had.)
18
HEARING OFFICER: I think we're ready
19
to go back on the record. And I think we're
20
on Page 18(l); is that correct?
21
MS. FRANZETTI: Yes. If I may
22
though --
23
HEARING OFFICER: I'm sorry, Ms.
24
Franzetti, before you do that: Mr. Dimond
131
1
spoke to me at the break and pointed out that
2
the Attachment A is missing several pages.
3
And I double checked to make sure it wasn't a
4
scanning error on our part, our copy also
5
does not have those pages.
6
Can we get those pages entered
7
into the record.
8
MS. WILLIAMS: Yes. And I am -- to be
9
sure I've got it correctly, we're talking
10
about Pages 2-98 through 2-102 of
11
Attachment A to the Agency statement of
12
reasons; does that sound right, Mr. Dimond?
13
MR. DIMOND: Yes.
14
HEARING OFFICER: I'm going to mark
15
those as Exhibit No. 18. If there's no
16
objection?
17
Seeing none, they're Exhibit 18.
18
(WHEREUPON, said document,
19
previously marked Exhibit No. 18,
20
for identification, was offered and
21
received in evidence.)
22
HEARING OFFICER: And like the other
23
exhibits we had earlier this week that -- I
24
don't even remember which ones they were that
132
1
I had scanned and linked, I'll have John scan
2
and link these, as well. And if there are
3
any other exhibits people want scanned and
4
linked, let me know, because that's not
5
standard operating procedure.
6
That's just something I've done,
7
because there has been a couple things that
8
we needed to get distributed the fastest and
9
that was the fastest way to do it. We're
10
happy to do it, just let us know what you'd
11
like scanned and linked.
12
MS. FRANZETTI: Madam Hearing Officer,
13
if I may digress from my prefiled questions
14
for a moment. It occurred to me last night
15
that in all of the questioning yesterday and
16
now this morning, I kept referring to Table 3
17
on Page 14 of Mr. Yoder's report, which has
18
been marked as Exhibit E.
19
In fact, one of the attachments to
20
the Agency's statement of reasons, and
21
specifically it's attachment No. HH, is a
22
letter from Mr. Yoder to Toby Frevert of the
23
Illinois EPA. The letter itself is undated,
24
but on the second page enclosure to the
133
1
letter it's dated July 11th, 2007. And this
2
is a revised version of Table 3.
3
So I think for the record, I would
4
like to ask him to identify it, explain what
5
changed from the values in Table 3 on Page 14
6
of his report. And then I would be offering
7
it into evidence as an exhibit to be marked.
8
HEARING OFFICER: Okay.
9
MS. FRANZETTI: Okay? So if I could
10
just do that right now.
11 BY MS. FRANZETTI:
12
Q. Mr. Yoder, I've placed in front of you
13 Attachment HH to the Agency's statement of reasons.
14 Could you take a look at that and then tell us what
15 it is?
16
A. It's a correction to Table 3 of
17 Exhibit 15.
18
Q. And this is a letter you wrote to
19 Mr. Frevert of the Illinois EPA?
20
A. Yes.
21
Q. And even though it's unsigned,
22 obviously, you did -- you did get it to the Illinois
23 EPA, I take it, perhaps by e-mail?
24
A. Yes.
134
1
Q. All right. Turning to Table 3, then,
2 am I correct that instead of referring to the
3 thermal endpoint criteria of values in Table 3 of
4 Exhibit 15 of your report, we should instead refer
5 to this Table 3 that's attached to your letter to
6 Mr. Frevert?
7
A. That's correct.
8
Q. And the values that had -- were
9 corrected, are limited to some of the values that
10 appear under the third proposed use category here,
11 secondary contact indigenous aquatic life; is that
12 correct?
13
A. That's correct.
14
MS. FRANZETTI: With that, I would
15
offer Attachment HH as the next exhibit in
16
this proceeding.
17
HEARING OFFICER: Ms. Franzetti, as I
18
indicated earlier, I don't generally mark
19
attachments to the statement of reasons as
20
exhibits, simply because they are already in
21
the record.
22
MS. FRANZETTI: That's right.
23
HEARING OFFICER: Is there a
24
particular --
135
1
MS. FRANZETTI: Well, it's just we
2
keep -- you know, we gave this an exhibit
3
number, and this is a correction to a page of
4
this. But it doesn't have to be. We've
5
identified it now in the record.
6
HEARING OFFICER: I think that's
7
sufficient.
8
MS. FRANZETTI: Okay.
9
HEARING OFFICER: Yeah. And just for
10
the record, that was an attachment to his
11
testimony not in the statement of reasons.
12
MS. FRANZETTI: Oh, sorry.
13
HEARING OFFICER: That's okay.
14 BY MS. FRANZETTI:
15
Q. Back to the prefiled questions,
16 beginning with (l).
17
The topic is UAA Waterway
18 Stressors and Constraints. Question 1.
19
How does the thermal endpoint
20 ranking approach used here to identify thermal
21 criteria options account for the presence or absence
22 of adequate habitat?
23
A. Through the RAS membership.
24
Q. I'm sorry, through the...
136
1
A. The RAS, the Representative Aquatic
2 Species Membership.
3
Q. Could you explain how the creation of
4 the RAS list accounts for the presence or absence of
5 adequate habitat?
6
A. Well, again, I'm assuming adequate
7 habitat refers to a natural river range system, and
8 we can factor in what we expect to see, say, in a
9 modified habitat and provide different RAS lists to
10 account for that.
11
Q. I still don't think I am quite
12 following what you mean by that.
13
Do you mean that if you're dealing
14 with a water body that doesn't have adequate habitat
15 for a given species, you would not include that
16 species on your RAS list?
17
A. That's correct.
18
Q. So do you first, in creating your RAS
19 list, evaluate the available habitat in a given
20 water body?
21
A. That's an option that you can employ.
22
Q. Okay. I understand theoretically it's
23 possible. Did you do that here before you finalized
24 your RAS list?
137
1
A. Yes. That was embedded in the three
2 different designated use options that constitute the
3 general use, the modified use and the secondary
4 contact options. And that determines the -- the
5 only thing that's between those --
6
Q. Okay.
7
A. -- are the representative species
8 lists.
9
Q. If I understand you correctly then,
10 the fact that you were basing the work you did on a
11 particular use category, such as, modified use,
12 that's where the degree of adequate habitat is taken
13 into account by your use designation or
14 classification, to which you are then creating your
15 RAS list; correct?
16
A. Yes. That's correct.
17
Q. Moving on to Question 2. A similar
18 question, but different factors, not habitat.
19
How does the thermal endpoint
20 ranking approach used here to identify thermal
21 criteria options account for the presence or absence
22 of other stressors, i.e., ammonia, metals, nonpolar
23 organics, emerging contaminants, endocrine
24 disruptors, pathogens, et cetera, for fish in the
138
1 subject water body?
2
A. Well, in the three options that we
3 considered, I guess some of that is indirectly
4 implied. But it's -- what we did is to base it more
5 on designated use goals.
6
And these kinds of concerns, they
7 kind of fall in behind that. Because the other sort
8 of part of the tiered use is that some -- could vary
9 by those uses.
10
You could also, I suppose, say
11 that I have a certain pollutant level which is going
12 to exclude certain species and detail your RAS list
13 that way, but we did not do that in this case. But
14 you -- that is certainly possible to do.
15
Q. If I understand you correctly, that's
16 one option? Were you also saying in the beginning
17 of your answer that these kinds of factors, such as
18 other stressors, can also be accounted for in the
19 agency's decision process after receiving your
20 criteria options?
21
A. They could do that, yes.
22
Q. Is that what you were referring to in
23 the first part of your answer?
24
A. Yes.
139
1
Q. Okay. No. 3.
2
How are the fish populations in
3 communities in the upper Dresden Pool and the
4 Chicago Sanitary and Ship Canal likely affected by
5 the several sources and causes of non to partial
6 attainment identified by the IEPA in their most
7 recent 305(b)report? If you know.
8
I realize that question assumes
9 that you're familiar with the 305(b) report for the
10 Upper Dresden Pool and the CSSC?
11
A. I haven't looked at that.
12
Q. All right. So you're not familiar
13 with what that report identifies as causes of either
14 non to partial attainment for those water bodies?
15
A. That's correct.
16
Q. Moving on to Question 4.
17
How are the fish populations and
18 communities in the upper Dresden Pool and the CSSC
19 likely affected by the elevated levels of mercury
20 and PCBs?
21
A. That's something else I didn't look
22 at.
23
Q. So you don't know -- your answer is
24 you don't know?
140
1
A. No. Not without looking at more
2 details.
3
Q. Moving on to Question 5.
4
Recent data suggests that fish
5 populations have been adversely affected by chronic
6 exposure to low levels of endocrine disruptors
7 commonly found in waterways receiving municipal
8 effluence, such as this one. How does such
9 exposures to low levels of endocrine disruptors
10 likely affect intolerant fish species that are
11 included in the proposed use designation for the
12 Upper Dresden Pool?
13
MS. WILLIAMS: At this point -- go
14
ahead.
15
MR. ETTINGER: I just want to object.
16
Are you going to put these reports in, or
17
have they already been put in when I was
18
gone, or --
19
MS. FRANZETTI: Well, we'll tie it up.
20
We do --
21
MS. WILLIAMS: Well, I mean --
22
MS. FRANZETTI: We do intend to
23
present evidence of the existence of
24
endocrine disruptors in the discharges to
141
1
this water body.
2
MS. WILLIAMS: In the absence of that
3
though, or without citing to one, the
4
question then, I think, becomes are you
5
putting evidence into the record that's
6
not --
7
MS. FRANZETTI: I'll tell you what --
8
you know what, I can get around this and just
9
say let's make it hypothetical.
10 BY MS. FRANZETTI:
11
Q. Can I ask you to assume that there are
12 low levels of endocrine disruptors commonly found in
13 waterways like this one? And based on that, how
14 does such exposure to low levels of endocrine
15 disruptors likely affect intolerant fish species?
16
A. Well, I can answer that a couple of
17 ways I think. It would help for me to know what the
18 recent data that suggests the population has been
19 adversely affected. I am aware of some of them.
20 Endocrine disruptor still means --
21
Q. All right. Well, I'm sorry.
22
If you're not -- are you not
23 really -- do you not really have the experience or
24 knowledge to answer a question like this about the
142
1 effects of low levels?
2
A. No, I do.
3
Q. Oh, you do. All right, I'm sorry. I
4 misunderstood you.
5
A. But it would help me to know what
6 recent data you were referring to. What specific
7 studies?
8
Q. Well, what are you familiar with? It
9 doesn't matter what I'm referring to, so much as
10 what you know.
11
A. I'm familiar with some of the work
12 that has been done at the EPA laboratory in
13 Cincinnati.
14
Q. All right. And what is that --
15
A. General Zortec. And one I'm familiar
16 with is a lake in Canada, where they dosed the lake
17 with EDCs, and it crashed the natural fathead minnow
18 population.
19
Q. So, based on that, what is your
20 opinion about --
21
A. That's the only thing I've got to go
22 on about recent data suggesting that. And I've
23 heard other things, I have not seen other studies.
24
I have seen news releases and
143
1 things like from various researchers that say there
2 are effects.
3
MS. WILLIAMS: Can I clarify for the
4
record? When you refer to EPA, was that Ohio
5
EPA or U.S. --
6 BY THE WITNESS:
7
A. I'm sorry, U.S.EPA.
8 BY MS. FRANZETTI:
9
Q. And would fathead minnows you
10 mentioned in that one study fall within the category
11 of tolerant fish species?
12
A. No. It's highly tolerant.
13
Q. That's highly tolerant. And even they
14 crashed, is what you're saying?
15
A. Well, that's what that study reported.
16
Q. Okay.
17
A. But my other experience was effluent
18 dominated water bodies. The one I'll refer to is
19 the side of the river that's affected by 200 million
20 gallons a day from sewage from the city of Columbus.
21
And I would -- being a large
22 municipality, it would have some of these EDC
23 compounds in the discharge. And we have seen in the
24 past 20 years a resurgence of the populations of
144
1 highly intolerant fish species.
2
And that water body is 90 to 95
3 percent municipal effluent during the summer. And
4 despite that, we've seen a recovery of highly
5 intolerant fish species in that river.
6
Q. So how do you reconcile that with the
7 candidate study you were mentioning?
8
A. I don't have an answer, but I -- you
9 know, it's something real that's happening there
10 that defies that study.
11
MR. ETTINGER: Can I just follow up on
12
that very briefly?
13 BY MR. ETTINGER:
14
Q. Which are the highly intolerant fish
15 species that you're seeing?
16
A. Well, I would say at least a dozen, if
17 not 15 or 20. And we're just completing a project
18 that documented this.
19
I did a presentation two years ago
20 at the Ohio Natural History Conference, so...
21
Q. Tippecanoe darter is one. Most of the
22 intolerant darters that are resident to that main
23 stem have expanded their ranges in the past five to
24 ten years.
145
1
In other words, they're
2 reestablishing their former ranges that they were
3 extricated from by the grows sewage pollution in the
4 late 19th to early to mid-20th century. And then,
5 when water quality based treatment was put into
6 these plants, we just saw stages of recovery over
7 the past -- I would say the past 20 years in that
8 river.
9
So that's my observation.
10 BY MS. FRANZETTI:
11
Q. I'm going to just -- I'm just going to
12 skip over the next question, it's going to get into
13 the same discussion about whether I'm introducing
14 evidence. So I'll skip it and move to 7.
15
At the bottom of Page 11 of your
16 prefiled testimony it stated that, "Selecting a
17 temperature representative of background
18 temperatures in this system is complicated by the
19 physically and thermally altered characteristics of
20 the upper Illinois and the Chicago area waterway
21 systems."
22
And I'm going to try and shortcut
23 this because I know we touched upon this earlier
24 today. By "thermally altered characteristics," are
146
1 you talking about the effluent discharges to this
2 waterway?
3
A. That's part of it.
4
Q. All right. What else do you include
5 in that?
6
A. Well, the physical -- the physical
7 modifications will also have some impact on that as
8 well.
9
Q. And what do you include in the
10 physical modifications in the upper Illinois and
11 CAWS?
12
A. Well, the impoundment and the
13 channelization. Particularly in the -- what do we
14 call it, the CAWS system or the CSSC?
15
Q. Well --
16
A. The whole collage of everything that's
17 happening upstream, basically.
18
Q. That will work. And in terms of why
19 that complicates the selecting a temperature
20 representative of background temperatures. Can you
21 explain why these -- at least taking the physical
22 modifications first, if you can, segregate it from
23 the thermal effluence, why does that complicate
24 things for establishing a background temperature?
147
1
A. Well, I think there's two aspects.
2 One is just the -- sort of the pure scientific facts
3 of the situation.
4
It is an older water body so it
5 induces that uncertainty of it. A conclusion that
6 it's not a least impacted sort of reference quality
7 water body, that's the first thing.
8
The second thing is it introduces
9 a lot of variability and expectations among
10 different stakeholders. And it's not just common
11 that this particular water body, I think this is
12 uncommon to any sort of urbanized modified river.
13
It's just that it just sort of
14 stirs up a lot of different opinions about what's
15 possible and what's attainable and that type of
16 thing. So it's more difficult, it's not as
17 straightforward as, say, in a reference quality
18 water body, where you have a modern location and
19 everybody agrees, yes, that's a least impacted
20 reference.
21
Q. All right. Okay. Let's see, give me
22 just a moment.
23
I think with respect to subpart
24 (c) of this question, I think you've already
148
1 answered it. You did not take into account these
2 types of complications in terms of your option
3 contained in your report, Exhibit 15, for selecting
4 a temperature representative of background
5 temperatures; did you?
6
A. Well, we tried to, in Table 5.
7
Q. Okay. How did you try in Table 5 to
8 take into account the thermally altered --
9 physically and thermally altered characteristics of
10 the upper Illinois and the Chicago area waterway
11 systems?
12
A. Well, to develop this table,
13 especially for the nonsummer months, the summer
14 months here are based on the data presented in
15 Tables 2 and 3.
16
Q. Uh-huh.
17
A. But the nonsummer season is based on
18 either the -- our analysis of the monitoring data at
19 the Cal Sag Route 83 monitoring station or the Holly
20 and Bradley modeling study, using that as ambient
21 background.
22
Q. And the Holly and Bradley monitoring
23 study, I see it referenced in Footnote 10, I
24 believe, on Table 5 --
149
1
A. Yes.
2
Q. -- page 18 of your report?
3
Can you -- well, first let me
4 break this down.
5
So, in part, your option for
6 nonsummer month background temperatures was based on
7 the ambient temperature data at the Cal Sag Route 83
8 monitoring station; correct?
9
A. Yes.
10
Q. Okay. Why did you conclude that that
11 was an appropriate location for purposes of
12 determining a representative background temperature?
13
A. Well, just from a sort of an impact
14 setting, it was the least impacted of all the
15 stations that we looked at. And you can see all the
16 stations that we analyze in Appendix 2 starting on
17 Page 74 of Exhibit 15.
18
Q. And, I take it, not just that it was
19 the least impacted, but also in closest proximity
20 and least impacted? I mean, you can look all
21 through the state for, potentially, an impacted
22 monitoring station --
23
A. Yes.
24
Q. -- isn't there a geographic component
150
1 to this, too?
2
A. Well, it was part of -- it was the
3 connected part of the system, and it was upstream,
4 and yes, it was -- I'm not sure if it was the
5 closest site, but it was the closest site that
6 didn't have a major thermal impact to it, at least
7 that's what I was told. And there are -- I believe
8 there were six sites that we did the same type of
9 data analysis --
10
Q. Okay.
11
A. -- for in the CAWS system.
12
Q. And, as you said, we can find those in
13 Appendix 2 to your report.
14
Now, you just made mention the
15 fact that, in terms of the Cal Sag and Route 83
16 location being the least impacted or being without a
17 thermal impact, that at least that's what you were
18 told.
19
Did somebody help you -- you know,
20 inform you of their opinion as to these varying
21 monitoring stations that are listed in Appendix 2?
22
A. Yes.
23
Q. Who was that?
24
A. Ed Hammer helped me with that.
151
1
Q. And Mr. Hammer is with U.S.EPA Region
2 5, correct?
3
A. Yes.
4
Q. So you relied on Mr. Hammer's
5 description of whether or not and to what degree
6 each of the monitoring stations in Appendix 2 were
7 or were not impacted by thermal impacts?
8
A. Yes. And what I mean by "thermal
9 impacts" would be like a heated effluent. We know
10 that there are waste water discharges that also have
11 an effect that, that being sort of a given in this
12 area, that was a reasonable --
13
Q. Right.
14
A. -- inclusion for this particular
15 option.
16
Q. And, I take it, did you need to rely
17 on Mr. Hammer because you did not have that personal
18 knowledge yourself, personal familiarity with these
19 monitoring stations?
20
A. Well, not necessarily.
21
Q. Well, then why are you relying on
22 Mr. Hammer?
23
A. Well, he was -- he's our technical
24 contact for producing this product.
152
1
He's the --
2
Q. Excuse me.
3
Does the fact that he's the
4 technical contact mean that you have to defer to his
5 opinion?
6
A. I don't have to defer to it, but I
7 value his opinion.
8
Q. Okay, I understand that. But, for a
9 moment, there I thought you said the reason, even
10 though you say you had personal knowledge, was that
11 you relied on what he said was because he was the
12 technical contact?
13
A. Yeah. And what that means is, this is
14 a grant product, that he is the technical overseer
15 of that grant product.
16
So, of course, he's going to have
17 input, and I'm going to listen to his input.
18
Q. All right.
19
A. I'm going to consider it.
20
Q. But you're telling me that if your
21 personal knowledge differed from his, then you would
22 follow your own personal knowledge?
23
A. Well, I think we would come to an
24 agreement.
153
1
Q. All right. But in these instances,
2 were you, basically, relying on the input he gave
3 you as to these monitoring stations and their degree
4 of impact -- the impacted nature?
5
A. Yes.
6
Q. Moving on to (m), Acclimation.
7
MR. ETTINGER: Can I just act a little
8
bit about the background temperature again?
9 BY MR. ETTINGER:
10
Q. Was there any thought given to
11 breaking down the system and using different
12 background temperatures for different segments?
13
A. Well, I think we did look at all six
14 sites and some were -- some had, what were obviously
15 elevated temperatures. And, therefore, we knew
16 those were in proximity to heated discharge.
17
And so, they were not -- they were
18 not used. We were, basically, just using the least
19 impacted of what was available.
20 BY MS. FRANZETTI:
21
Q. If you give me just a moment,
22 Mr. Yoder, I'm -- I think 1(a) has been answered
23 already. I want to see where we pick up again what
24 has not been answered.
154
1
Moving on to 1(b).
2
On Page 7 of your prefiled
3 testimony, you indicate that the upper lethal
4 temperatures in your literature studies database are
5 based on fish acclimation temperatures of between 25
6 to 30 degrees Celsius. Did you include this caveat
7 because of the relationship between acclimation
8 temperature and the resultant UILT?
9
A. Yes.
10
Q. Moving on to (c).
11
Did you similarly restrict, i.e.,
12 the studies based on fish acclimation temperatures
13 of between 25 and 30 degrees Celsius the upper
14 lethal endpoints in the data set you prepared for
15 the ORSANCO project?
16
A. As much as I could. I believe I
17 did -- well, first of all, in the compilation of raw
18 data, we do have data that acclimation temperatures
19 different than 25 or 30. But we attempted to, as
20 much as possible, include -- use those as the input
21 variables in the model. But there are some inputs
22 due to just the policy of data for a species, the
23 test may have been done at a lower acclimation
24 temperature.
155
1
Q. Okay. Moving on to D.
2
Was the upper lethal temperature
3 for white sucker based on acclimation temperatures
4 of between 25 and 30 degrees Celsius?
5
A. I'll have to look that up.
6
Going back to my testimony, what I
7 recall, what I think I did, and I have to go back
8 and find out, if I could find my notes on what I
9 actually did. But the data points that I think I
10 used are acclimation temperatures of 26 degrees.
11
Q. And you are referring to which --
12 which appendix to Exhibit 15?
13
A. Appendix Table Z(1) in Exhibit 16.
14
Q. Sixteen, I'm sorry.
15
Mr. Yoder, are we looking back at
16 the same page that we were looking at this morning?
17
A. Yes.
18
Q. Okay. With respect to the McCormick
19 1977 study and the Bruns and Jones study?
20
A. Actually, it's the Bruns and Jones
21 study.
22
Q. Okay.
23
A. It talks about the acclimation of 26
24 degrees.
156
1
Q. All right. So you think that your
2 upper lethal temperature for white sucker was based
3 solely on the Bruns and Jones study now?
4
A. I think so.
5
Q. Oh. All right.
6
A. That's what I have to go back and see
7 if I could find out.
8
Q. I'm just trying to clarify. That's
9 different from what I thought you said this morning.
10
I thought you said it was a
11 combination of both the McCormick study --
12
A. Well, I don't rule it out. But
13 it's...
14
Q. All right.
15
A. I know that the input number is 31.5,
16 which is the average of the two values in the Bruns
17 and Jones study.
18
Q. Oh, okay.
19
A. So it makes sense from that aspect.
20 Plus there's only one other study that had an
21 acclimation temperature in the 25 to 30 range.
22
And that was only a 12-hour test,
23 so...
24
Q. Okay. Well, so you're going to --
157
1 you've agreed, you're going to try and find your
2 notes.
3
And in finding your notes, would
4 you also agree that you would let us know, with a
5 little greater degree of certainty, exactly what you
6 did use?
7
A. Yes.
8
Q. Thank you.
9
Moving on to Question (e). And
10 I'm going to jump to the second part of that.
11
If a laboratory study did not use
12 an acclimation temperature of 25 to 30 degrees, did
13 you exclude it as being something that you relied on
14 for purposes of coming up with your temperature
15 criteria options in Exhibit 15?
16
A. Yeah. If there wasn't -- if there was
17 just a complete absence of that kind of data. But
18 if it was available at these acclimation
19 temperatures, then that's what I used.
20
Q. My question is different. I'm trying
21 to determine whether that was a basis for excluding
22 data from your ranking approach here in Exhibit 15.
23 In other words, in order for you to use a value
24 derived from one of the literature reports you were
158
1 using, you were inputting, did the value have to be
2 based on a laboratory study that used an acclimation
3 temperature of 25 to 30 degrees?
4
A. No. I believe in one of my previous
5 answers I said that it was -- we did use data that
6 was at acclimation temperatures outside of that
7 range.
8
Q. Was that where you didn't have a
9 literature value for a study that was done between
10 25 and 30 degrees?
11
A. That's correct.
12
Q. Okay. So it is less preferable data
13 when it's a study based on acclimation values
14 outside of that range. But it was -- it would still
15 be inputted if it was the only thing you had?
16
A. That's what I did, yes.
17
Q. Okay. Moving on to (f).
18
Is it true that the upper lethal
19 temperatures for a number of species, e.g., silver
20 lamprey, stone cat and redear sunfish in your
21 database were based on testing winter acclimated
22 fish that had been acclimated at less than 5 degrees
23 Celsius?
24
A. Okay. That is true for
159
1 silver lamprey, and it's true for stone cat. I
2 don't see where that's true for redear sunfish,
3 unless I'm missing something here.
4
And the data compilation, the
5 lethal value I have is an acclimation temperature of
6 22.7 degrees.
7
Q. Are there any other species -- I mean,
8 I accept what you're saying for redear sunfish, I
9 don't know. But are there any other -- I mean,
10 these were ones we thought fell outside of your
11 range.
12
Are there any others that did
13 among the inputs you used? Do you know?
14
A. Among the inputs I used for the study,
15 I'd have to go back and go through them one by one
16 to determine that.
17
Q. I won't ask you to do that right now.
18
Do you know, is it correct, that
19 the upper lethal values in your database for the
20 species, silver lamprey, stone cat redear sunfish,
21 and even other species, were based on testing only
22 one or two specimens?
23
A. The only one I'm certain of is stone
24 cat.
160
1
Q. You don't know as to the other ones?
2
A. Not without going back and looking at
3 the cited studies.
4
Q. Moving on to thermal avoidance, N,
5 Question 1.
6
Is it correct that the thermal
7 water quality standard values derived in your
8 Exhibit 15 report were derived exclusively from
9 laboratory data?
10
MS. WILLIAMS: We've answered this
11
already, haven't we? I will object. It's
12
been asked.
13 BY MS. FRANZETTI:
14
Q. Some of these need a little foundation
15 in order to move forward.
16
Yes or no?
17
A. No. It includes some field data.
18
Q. Oh, that's right, that's your...
19
No. 2, do you agree that in lab
20 testing the test organisms have nowhere to go to
21 escape potentially harmful or lethal temperatures?
22
A. No, I don't agree.
23
Q. Why not?
24
A. Some tests are set up so fish do have
161
1 the ability to move, to seek other temperatures.
2 Some are not.
3
Q. Right.
4
Would you say the majority are
5 not?
6
A. I'm not certain of that.
7
Q. Well --
8
A. Almost, by definition, critical
9 thermal maximum studies fall into that category.
10 And I've already said that the majority of data out
11 there seems to be from those kinds of studies.
12
So, yes, I would agree with that.
13
Q. And so, do you agree that that's
14 really most of what's represented in the database
15 that you use to come up with your thermal criteria
16 option?
17
A. For the lethal endpoint, yes.
18
Q. Yes, that's what we're talking about.
19
MR. ETTINGER: That's my confusion. I
20
thought we were talking avoidance
21
temperatures now.
22
THE WITNESS: Yes.
23
MR. ETTINGER: Isn't this the area on
24
thermal avoidance?
162
1
MS. FRANZETTI: Yeah. And the point
2
being, that in most of these tests, the fish
3
can't exhibit their natural behavior of
4
avoidance.
5 BY MR. ETTINGER:
6
Q. Excuse me, then, that's why I'm
7 confused. You wouldn't do a test for avoidance in
8 which the fish couldn't avoid; would you?
9
A. That's correct.
10
Q. So if you were going to do a test for
11 avoidance, it would be designed so that the fish
12 could go somewhere.
13
A. Yes, that's inherently part of that
14 design.
15
MR. ETTINGER: That's why I was
16
confused.
17
MS. FRANZETTI: Well, moving onto the
18
next question, maybe we can help your
19
confusion.
20
MR. ETTINGER: Good.
21 BY MS. FRANZETTI:
22
Q. Do you agree that in a waterway fish
23 can detect high temperatures and will avoid them,
24 providing there's thermal refuge available?
163
1
A. Yes, provided they have somewhere to
2 go.
3
Q. Moving on to Question 4.
4
Is it correct that the derivation
5 process used here does not account for this thermal
6 avoidance behavior in fish?
7
A. No.
8
Q. What is not true about that?
9
A. Well, the concept of the long-term
10 survival is avoidance. The short-term survival is
11 something they can withstand for short periods of
12 time, but eventually will -- they will avoid that.
13
So that's why the average is based
14 more on the concept of avoidance. That's what's
15 inherent to this -- the concept of the long-term and
16 short-term survival principles.
17
MR. ETTINGER: I'm sorry, Ms.
18
Franzetti, you didn't solve my problem at
19
all.
20 BY MR. ETTINGER:
21
Q. If you were going to design a test to
22 measure avoidance, are such tests done?
23
A. Yes.
24
Q. I assume if you were going to -- I
164
1 don't want to assume.
2
Would you design such a test so
3 that the fish could avoid temperatures and choose
4 what temperature they wanted to be in?
5
A. Yeah, that -- for laboratory-based
6 avoidance studies, that is generally what is done.
7 It's a trough or a chamber that is set up that has a
8 different temperature gradient and the fish are --
9 they seek where they want to be.
10
Q. So on these avoidance numbers that are
11 in Table 3 of what I believe has been marked as
12 Exhibit 19.
13
HEARING OFFICER: No HH.
14
MS. FRANZETTI: HH.
15
MR. ETTINGER: I'm sorry, HH. We
16
didn't mark it.
17 BY MR. ETTINGER:
18
Q. HH. Are some of these avoidance
19 temperatures derived from laboratory tests in which
20 the fish were allowed to move?
21
A. Well, the -- yes, that data is part of
22 the whole underpinnings, and it's one of the input
23 variables in the model, that's the upper avoidance
24 temperature part of it. So if you look at the
165
1 upper -- there is an upper avoidance row in these
2 tables.
3
Q. Yes, how --
4
A. So if you look at that, you can see
5 that's where the upper avoidance input was crossed.
6
Q. And was that number derived, at least
7 in part, from laboratory studies in which fish could
8 move?
9
A. Laboratory and field studies, it had
10 to be an avoidance endpoint.
11
Q. And the fish could move in deriving
12 those numbers?
13
A. Yes.
14
Q. Thank you.
15 BY MS. DEXTER:
16
Q. Would you accept a study that was
17 designed to calculate that endpoint from a study
18 that was designed to not let the fish move?
19
A. I mean, that's inherently not an
20 avoidance setting.
21
MS. DEXTER: Right. Thanks.
22
MR. ETTINGER: Now we understand.
23 BY MS. FRANZETTI:
24
Q. And is thermal avoidance by a fish a
166
1 generally accepted phenomenon, Mr. Yoder?
2
A. Yes. It's a defined term.
3
Q. Right.
4
And with respect to how your
5 criteria are applied, if the avoidance endpoint
6 taking, for example, on modified use RAS II, if the
7 avoidance thermal endpoint for 100 percent
8 protection is 83.7 degrees Farenheit -- that is kind
9 of in the middle of all your numbers there -- that
10 is not going to be used for purposes of determining
11 the daily maximum thermal criteria; is it?
12
A. Well, it's not how we produced the
13 options, but it's certainly available to the user.
14
Q. I understand that the user can do
15 whatever they want, but I didn't think that that was
16 the intent of your approach; correct?
17
A. No, but we -- we feel that the
18 long-term survival is sufficient surrogate for that.
19
Q. Okay. Moving on to (o), Absence of
20 Early Life Stages, and in particular the CAWS
21 aquatic life view sea waters.
22
MS. WILLIAMS: I think we are going to
23
have to either set this aside for Mr. Twait
24
or rephrase it in a way that's within his --
167
1
MS. FRANZETTI: And I think, quite
2
frankly, to a large extent, it's already been
3
answered by Mr. Yoder. I'll move on.
4 BY MS. FRANZETTI:
5
Q. And I'll move on right to P, to talk a
6 bit about your 2003, 2006 ORSANCO project report,
7 which we've been referring to as, I believe,
8 Exhibit 16.
9
In your final report, ORSANCO
10 Exhibit 16 -- the seasonal average limit of 75.2
11 degrees Farenheit and the daily maximum limit of
12 78.8 degrees Farenheit that you presented in
13 Table 12, were based on the upper lethal endpoint
14 for log perch; correct?
15
A. Yes. If I can be permitted to
16 explain?
17
Q. Sure.
18
A. Okay. We, substantively, changed that
19 endpoint based on feedback that we received from the
20 subcommittee.
21
Q. Okay. Subsequently changed those --
22 those are no longer the thermal endpoint values for
23 log perch, that you -- that the --
24
A. Yeah, that's current --
168
1
Q. -- that the MBI/CABB --
2
A. We have a different endpoint now for
3 log perch.
4
Q. And you said you changed that because
5 of input from -- I'm sorry, where?
6
A. The ORSANCO committee that we were
7 reporting to for that project.
8
Q. What was the nature -- explain what
9 the input was that caused you to change those
10 values?
11
A. The study it was based on was
12 critiqued and suggested that it wasn't a valid
13 study.
14
Q. The study that you had included in
15 your data --
16
A. Not the study, but the lethal endpoint
17 that we pulled out of a study in a peer review
18 journal. We took it out of the study and put it in
19 the database, and then that was subsequently
20 criticized.
21
So we dropped that, being -- I
22 don't want to say accommodating, but we dropped it
23 and we changed it because it was questioned.
24
Q. I guess the part I'm missing is, I'm
169
1 tempted to say, so if I criticize some of your
2 values, will you change them as well? What was the
3 criticism, what was wrong? And you're stressing to
4 me, "Well, it was a peer-reviewed study, so don't
5 blame me."
6
So what was wrong?
7
A. I was not present at the meeting that
8 that was discussed. It was relayed to me by the
9 person I was working with at ORSANCO.
10
And the decision was made that,
11 okay, we'll -- it's controversial, we'll change it
12 for this particular application. But I have since
13 gone back and reread the study.
14
Q. Which -- I'm sorry, which study? The
15 one the criticisms were based on?
16
A. Yes.
17
Q. I'm sorry, the one you used?
18
A. Yes.
19
Q. Originally, to get these numbers, 75.2
20 and 72.8; correct?
21
A. Yes.
22
Q. All right. You went back and reread
23 it?
24
A. Yes.
170
1
Q. And what did you conclude after
2 rereading it?
3
A. It's there in their data, that they
4 reported the highest survival they saw for log perch
5 was 26 degrees Celsius, which is -- what's that
6 translate to?
7
Q. Well, Mr. Yoder, let me --
8
A. It's approximately the -- I believe,
9 the 78.8 degree value.
10
Q. Mr. Yoder, are you telling me that --
11 I'm not sure what you're trying to tell me, that you
12 reread the study. Do you disagree with the ORSANCO
13 committee input? Is that what you're saying, after
14 rereading the study?
15
A. No, but that's who I was producing the
16 product for.
17
Q. Okay. So you do agree your original
18 numbers should be changed?
19
MS. WILLIAMS: I'm losing track of
20
what's original and what's subsequent.
21
MS. FRANZETTI: The original are what
22
are in my question, 75.2, 78.8.
23
MS. WILLIAMS: Is that your
24
understanding of original?
171
1
THE WITNESS: Yes.
2 BY MS. FRANZETTI:
3
Q. Mr. Yoder, I'm trying to figure out,
4 do you today agree that those values were unreliable
5 and you agree that they should be and have, and, in
6 fact, they have been revised?
7
A. I agree that they were revised.
8 Whether -- I'm having trouble with the definition of
9 what's an unreliable study. Because what one
10 person's opinion of what is unreliable, someone else
11 will say it's reliable.
12
The only test I have to go by in
13 doing literature use of information is, is a
14 published study and was it reasonably vetted through
15 some kind of review process.
16
Q. Okay.
17
A. That's really all I have to go on.
18
Q. Okay. I understand.
19
But I'm not so much talking about
20 the study, I guess, I'm trying to get away from that
21 to just establish do you agree that these numbers
22 for log perch should have been revised per -- as the
23 ORSANCO committee concluded, or do you disagree with
24 that committee's input?
172
1
A. I'm not sure if -- I'm not trying to
2 be difficult, but if I use the test of taking what I
3 find in the literature, and if it's a published
4 study, that if that qualifies as being acceptable,
5 then I would disagree with the ORSANCO committee.
6
Q. Mr. Yoder, did you write to ORSANCO
7 and admit in writing to them that, "The log perch
8 upper lethal value was in error on my part and has
9 been revised"?
10
MS. WILLIAMS: Can I object?
11 BY THE WITNESS:
12
A. No, I did not write --
13 BY MS. FRANZETTI:
14
Q. You did not write?
15
A. No.
16
Q. Moving on to Question 2.
17
Isn't it true that these values,
18 75 to 79 degree Farenheit are well below the ambient
19 temperatures that often prevail in the Ohio River
20 during the summer?
21
A. Yes.
22
Q. And isn't it true that log perch are
23 very common in the Ohio River during the summer?
24
MS. WILLIAMS: I'd like object to this
173
1
point -- to this line of questioning. I know
2
that we're giving a lot of leeway here, but I
3
don't believe log perch is the used Upper
4
Dresden Island report at all. So I don't
5
understand how -- whether good or bad or
6
relevant or will help the Board at all in the
7
decision it needs to make.
8
MS. FRANZETTI: Madam Hearing Officer,
9
I think this goes directly to the degree of
10
reliability of the conclusions that Mr. Yoder
11
reached what he's referring to as "options"
12
in his report. And it shows how, from the
13
values that he derives using his ranking
14
approach, have, in fact, when been
15
scrutinized in other settings like this one
16
looking at what should be appropriate thermal
17
standards, there have been errors found.
18
And in fact, those -- when found,
19
those values have been changed. And, in
20
part, I'm trying to show that it's because
21
they don't reflect reality.
22
And, in fact, in the real river
23
system, you have these fish and you have them
24
in good numbers at significantly higher
174
1
temperatures. I think that's a very relevant
2
point for this board to consider.
3
HEARING OFFICER: I would agree.
4
Would you like to respond?
5
MS. WILLIAMS: Well, I would just like
6
to respond that I think we well established
7
yesterday that if any user of his model wants
8
to change any endpoint or species that's in
9
there, that that can be done. So I'm not
10
sure there's anything to --
11
MS. FRANZETTI: Ms. Williams, are you
12
telling us that in the proposed thermal
13
standards before this board, I won't find a
14
single number that comes straight from his
15
Table 3?
16
MS. WILLIAMS: No, I'm saying that --
17
MS. FRANZETTI: Exactly --
18
MS. WILLIAMS: -- log perch is not in
19
Table 3.
20
MS. FRANZETTI: I know log perch
21
isn't.
22
MS. WILLIAMS: If there's some other
23
information you want to change, we can
24
change -- I mean, you can do that.
175
1
HEARING OFFICER: I'm sorry,
2
Ms. Williams, I have to disagree.
3
MS. WILLIAMS: Okay.
4
HEARING OFFICER: I think that these
5
questions are specifically about the ORSANCO
6
project. And, at least my understanding is,
7
that's the underlying database that was used
8
to create Exhibit 15.
9
And I think that, certainly,
10
everyone has -- should have the opportunity
11
to ask him about the data that he used to get
12
to 15 or data that was placed into that. So
13
I'm going to overrule your objection and
14
instruct the witness to answer the question.
15
MS. WILLIAMS: Can you repeat it for
16
him?
17
HEARING OFFICER: Yeah, would you read
18
it back?
19
(WHEREUPON, the record was
20
read by the reporter.)
21 BY THE WITNESS:
22
A. To my knowledge, that's correct.
23 BY MS. FRANZETTI:
24
Q. Do you recall what was your
176
1 recommended value, the 75 to 78 degrees, based on an
2 endpoint for log perch that, rather than being based
3 on a lethal toxicity test, was based instead on one
4 of the reproductive endpoints?
5
A. At this point, I don't agree with
6 that.
7
Q. All right. What was it based on?
8
A. I went back and I reread the study.
9 And based on what I read, that is a lethal endpoint.
10
Q. Moving on to -- excuse me for a
11 moment.
12
Do you recall in rereading the
13 study, was there -- were there any references to the
14 endpoint, whether it be lethal or whether it be
15 reproductive, was suspect because of poor
16 temperature control as acknowledged by the author of
17 that study?
18
A. I do recall seeing some of that, but
19 that the author qualified that. He didn't think
20 that was the problem in the endpoint.
21
Q. So the author admitted to poor
22 temperature control during the study but didn't
23 think it affected the endpoint?
24
A. No, he had -- as I recall reading the
177
1 study, he had some problems with the apparatus. But
2 I also, from reading the study, that that
3 information was not included in the study.
4
Q. The fact that he had problems with the
5 apparatus wasn't included?
6
A. Well, he didn't have continuous
7 problems, but there were some experiments he ran
8 where it did malfunction and he did not use that
9 information, was my understanding from reading that
10 study.
11
Q. Okay. Moving on to No. 4.
12
Have log perch in the Ohio River
13 been collected at temperatures above what your
14 report suggests are the short-term and long-term
15 lethal temperatures for log perch?
16
A. I haven't been presented any data that
17 proves that.
18
MR. ETTINGER: May I just follow-up
19
that briefly?
20 BY MR. ETTINGER:
21
Q. When you're talking about daily
22 maximum, is that the average over a day, the maximum
23 daily average?
24
A. I think we had this question before.
178
1
MS. FRANZETTI: I thought we covered
2
it this morning.
3 BY MR. ETTINGER:
4
Q. Well, I guess my problem is
5 specifically with regard to Ms. Franzetti's
6 questions here and this study, that we've talking
7 about. Was that to calculate what log perch could
8 stand as an average over a 24-hour period?
9
A. I'd have to look at the study, how
10 they reported that.
11
Q. Okay.
12
A. I'm not sure.
13
Q. If it was an average, that might go
14 over that temperature for some part of the day?
15
A. It's possible, if that's what
16 happened.
17 BY MS. FRANZETTI:
18
Q. Mr. Yoder, I want to jump to 5, I
19 think you've answered the first part of that
20 question.
21
There was a revised recommendation
22 made to ORSANCO; wasn't there?
23
A. (No audible response.)
24
Q. I'll go ahead and read the -- I'm
179
1 sorry, I though you had -- maybe not. I'll read the
2 question.
3
Is it correct that, based on
4 the difference between the recommended log perch
5 based fish temperature model criteria and the actual
6 ambient fish survey data for the subject waterway,
7 you made a revised recommendation to ORSANCO for the
8 thermal summer criteria?
9
A. Not -- no, not in response to anything
10 like that. I was never provided actual ambient fish
11 survey data for that waterway, but may arrive at a
12 different recommendation.
13
Q. All right. You didn't see any actual
14 stream ambient data?
15
A. Not with the co-occurrence of fish
16 with temperature. We did have a session in choosing
17 the various RAS lists, and I should state that this
18 isn't the only option that we provided for ORSANCO.
19
Q. Can we maybe cut to the chase? What
20 did ORSANCO, ultimately, do? What did it,
21 ultimately, rely on, if you know?
22
A. When we produced the report, there
23 were two RAS options, one was a very inclusive --
24 any species that ever was observed. And this was --
180
1 these lists were chosen by the subcommittee, they
2 were not chosen by me alone.
3
And out of respect to the
4 subcommittee, I used the list that resulted in these
5 unrealistic temperature criteria. And I owe that to
6 the fact that that RAS list just -- it just got
7 cluttered with too many small stream species that
8 are transient to the Ohio River.
9
You might find them there
10 occasionally, but they're not really residents. And
11 we developed another list called a main stem
12 restricted RAS that -- I think arrived at a much
13 more realistic temperatures -- that were more inline
14 with the ambient conditions in the river.
15
And that is what I -- it's my
16 understanding that that is what ORSANCO eventually
17 relied on.
18
Q. Moving on to --
19
MS. WILLIAMS: Can we just clarify
20
whether log perch was included on this second
21
RAS list you're referring to, or do you know?
22
THE WITNESS: It's in Exhibit 16.
23 BY THE WITNESS:
24
A. And we did the same thing -- we did
181
1 the same thing with the options where we removed
2 selected species, just like we did with the general
3 use options for the Des Plaines, just to show them
4 what's the effect. And this is part of the -- I
5 call it risk management use of this tool.
6 BY MS. FRANZETTI:
7
Q. Mr. Yoder, I'm going to jump to
8 Question 7.
9
In the report you prepared for
10 ORSANCO Exhibit 16, you stated at Page 2 that most
11 studies that you relied upon were accepted at face
12 value.
13
That's your term. What did you
14 mean by that?
15
A. That I did not endeavor to reanalyze
16 anyone's data or conclusions that they reached in
17 their own publications.
18
Q. I think we've covered 8.
19
Just -- 9 is -- just to make sure
20 we're understanding your Table 9 in Exhibit 16, can
21 you explain what the numbers in the columns headed
22 Original Sources and New Literature refer to? And,
23 I'm sorry, I don't have a page number there to --
24
MR. SULSKI: Fifty-one.
182
1
MS. FRANZETTI: Fifty-one?
2
MR. SULSKI: Oh, that's the figure,
3
I'm sorry.
4
THE WITNESS: Page 45.
5 BY MS. FRANZETTI:
6
Q. Page?
7
A. Forty-five.
8
Q. Thank you. Do you see that after the
9 species table the next -- excuse me, the species
10 column, the next column is entitled original
11 sources?
12
A. Yes.
13
Q. And some have numbers and some don't.
14 Can you explain what that means?
15
A. The original sources are the species
16 that have data for the 1978 database done for Ohio
17 EPA.
18
Q. And then, going over two columns,
19 there's a column called New Literature.
20
A. Okay. Could I suggest something here?
21 I think you need to understand what Appendix Table Z
22 (1) is before we get to --
23
Q. Okay. You're the boss. Explain that
24 column.
183
1
What does that column mean?
2
A. Appendix Table Z (1) is the
3 compilation of all the studies that are available
4 for those species. In other words, a count of how
5 many studies did we find for each one of those
6 species.
7
Q. Oh. I think maybe you're right, maybe
8 I should have asked you this question three hours
9 ago.
10
If that says -- if next to the
11 particular species, silver lamprey, the number is
12 one, does that mean there's only one silver lamprey
13 study?
14
A. Yes. And it was found after the
15 1978 -- it wasn't available.
16
Q. Right. That's why there's nothing
17 under Original Sources. It wasn't until sometime
18 after 1978 that the study on silver lamprey became
19 available?
20
A. It doesn't mean it wasn't necessarily
21 done --
22
Q. All right.
23
A. -- but it didn't include the
24 literature --
184
1
Q. You didn't find it, you didn't know
2 about it. It didn't get into the database?
3
A. So Appendix Table Z (1) will always
4 include the number of studies through the original
5 sources. The new literature or the additional
6 studies that we found for a particular species in
7 this effort.
8
Q. Okay. So don't this table -- and
9 isn't this where answered -- or strike that.
10
In a prior question I asked you
11 for the species that you used for purposes of
12 developing your thermal criteria options that you
13 gave to the IEPA in Exhibit 15. Now, which of those
14 species did you only have one study for?
15
This table answers that question;
16 correct?
17
A. It should, yes.
18
Q. If I look for each of those species, I
19 can determine, in your entire database, how many
20 studies are there?
21
A. Yes.
22
Q. Thank you.
23
Now, and New Literature, I don't
24 think -- I think we didn't get to that. Is that the
185
1 additional 200, 400 whatever it was --
2
A. Yes.
3
Q. -- added to the original database?
4
A. Yes.
5
HEARING OFFICER: It's 200, I believe.
6
MS. FRANZETTI: Two hundred, thank
7
you.
8 BY MS. FRANZETTI:
9
Q. I think you've answered 10, or
10 enough -- you've answered it enough, that we don't
11 need to go over it. I think the same is true of 11.
12
I'm going to jump to the Ohio
13 Muskegon River in Q.
14
According to Section 3745-1-07 of
15 the Ohio Regulation, the thermal water quality
16 standards period average for the period 15 June
17 through 15 September is 85 degrees Farenheit with an
18 allowable daily maximum of 89 degrees. Were these
19 thermal water quality standards based on the same
20 modeling approach you used on the ORSANCO project
21 and have proposed here for the lower Des Plaines
22 River?
23
A. Yes. The same methodology.
24
Q. Do you agree that the Muskegon River
186
1 limits of 85 degree period average and 89 degree
2 maximum are essentially identical to the values you
3 have proposed here for the Upper Dresden Pool at the
4 Illinois EPA?
5
MS. WILLIAMS: He can't answer this.
6
I don't think this is a question for Chris;
7
do you?
8 BY THE WITNESS:
9
A. I'm not comfortable answering it. No,
10 I don't know enough about the proposal.
11 BY MS. FRANZETTI:
12
Q. Oh, what the Illinois EPA has proposed
13 here?
14
MS. WILLIAMS: If you just want to ask
15
him -- that's fine.
16 BY MS. FRANZETTI:
17
Q. Well, can you answer -- if you look at
18 your Table 3, can you, at least in terms of relating
19 it to the uses that you looked at -- well, you may
20 have to look at general use, I'm not sure. Can you
21 relate it to the options you gave to Illinois EPA?
22
HEARING OFFICER: Table 3 in
23
attachment HH; correct? That's the one
24
you're looking at?
187
1
MS. FRANZETTI: Yes.
2 BY MS. FRANZETTI:
3
Q. Aren't those numbers similar to your
4 modified use?
5
A. Yeah, they happen to be within a tenth
6 or two.
7
Q. And I thought we had established
8 earlier that -- well, let me ask it in the
9 hypothetical.
10
I'm going to change that again.
11 Let's just go to 2(a).
12
Can you describe the
13 characteristics of the Muskegon River in comparison
14 with the Upper Dresden Pool, starting with -- is the
15 Muskegon River, for which we have thermal standards
16 of 85 degree period average, 89 degree max; is it
17 impounded?
18
A. Yes.
19
Q. All right. And describe the
20 impoundment characteristics of the Muskegon versus
21 the Upper Dresden Pool.
22
A. Well, it has a series of navigational
23 dams and locks.
24
Q. All right.
188
1
A. It's -- however, not subject to --
2 it's restricted to pleasure boats. There's no barge
3 traffic.
4
Q. Oh, there's no barge traffic on the
5 Muskegon?
6
A. Right. But the --
7
Q. Is it a channelized -- excuse me --
8
MR. ETTINGER: Could you let him
9
answer his question?
10 BY MS. FRANZETTI:
11
Q. Go ahead, Mr. Yoder, with your answer.
12
A. The Muskegon is impounded, I believe,
13 for a slower, approximately, close to 90 miles of
14 Banesville, Ohio, I think there are 11 dams. And
15 they all have locks they're hand-operated locks.
16
There's no maintenance, except in
17 the vicinity of the locks.
18
Q. So --
19
A. It does impound and inundate the
20 natural rivering characteristics for all, except the
21 immediate tail waters below each damn. So, in that
22 regard, yes, it's similar.
23
Q. Okay. But there's no barge traffic
24 and there is no maintenance dredging done on the
189
1 Muskegon?
2
A. Not out in the main channel, no.
3
Q. Is it channelized in the way the Upper
4 Dresden Pool is?
5
A. Well, I'm not -- my definition of
6 channelization -- and we went over this the other
7 day -- is where the river is physically dipped out
8 from bank to bank.
9
Q. Oh, that's right. You only include
10 bank to bank in channelization.
11
A. Right.
12
Q. Isn't it true that the upper Muskegon
13 River is not impounded?
14
A. It's free flowing, yes.
15
Q. Yes.
16
And with respect to availability
17 of habitat, do you know enough to compare the
18 Muskegon River to the Upper Dresden Pool?
19
A. In the fact that both are impounded
20 and the impoundments go from one damn to the tail
21 water of the next upstream damn, that's the
22 similarity extent that I'm aware of.
23
Q. And the unimpounded portion, same
24 thing, you think they're the same thing?
190
1
A. Of the Muskegon.
2
Q. Versus the Upper Dresden?
3
A. No, I would say not.
4
MS. FRANZETTI: I think we're done.
5
MS. WILLIAMS: Can I ask some
6
follow-up on this particular point?
7
HEARING OFFICER: Sure.
8 BY MS. WILLIAMS:
9
Q. Are you familiar enough with these
10 ambient standards in Muskegon River to tell me
11 whether they allow -- the standard itself allows for
12 excursions?
13
A. The standard does not, no.
14
Q. Do you know if the standard was based
15 on a background value for the nonsummer months in
16 the Muskegon River? An ambient value, I'm sorry.
17
A. Well, we would have looked at
18 representative ambient data, but I'm almost certain
19 in that case it's based on the short and long-term
20 survival values that came out of the 1978 version of
21 the fish temperature model.
22
MS. FRANZETTI: Madam Hearing Officer,
23
while counsel is conferring, I don't have any
24
more questions on exhibits, his report, his
191
1
prefiled testimony. I do have questions on
2
Attachment S, the MBI/CABB report that, I
3
think it was on Monday, we established
4
Mr. Yoder is also knowledgeable on and we
5
should be directing questions to him.
6
But I thought it might make sense
7
to give people a chance to do follow-up on
8
Exhibits 15 and 16 topics, and I'll come back
9
on Attachment S tomorrow.
10
HEARING OFFICER: Okay. I would note,
11
we're going to take a short break. But Flint
12
Hills will be next in the lineup of
13
receiving. But I didn't really see any
14
directly for Mr. Yoder.
15
MR. HILLS: No, Your Honor -- Flint
16
Hills. None of our prefiled questions are
17
directed toward Mr. Yoder. Obviously, we
18
reserve our right to have follow-up
19
questions.
20
HEARING OFFICER: Well, then that
21
takes us to Citgo, and I don't see Mr. Fort.
22
MR. ETTINGER: He's abandoned the
23
fort.
24
HEARING OFFICER. Which then -- the
192
1
list then would go to Corn Products, but
2
again, I didn't see any directly for
3
Mr. Yoder.
4
MR. HILLS: Same situation.
5
HEARING OFFICER: Corn products?
6
CICI, any specific.
7
Also the District, I really didn't
8
see that you had any for Mr. Yoder.
9
UNIDENTIFIED SPEAKER: I think we had
10
one, although we may have had follow-up
11
questions.
12
HEARING OFFICER: All right. Then we
13
will let you ask your one after break.
14
And then we will go to you,
15
Mr. Dimond.
16
And, please, take the opportunity
17
to look at your questions. I think he's
18
addressed a lot, I believe, of Citgo, and
19
then I think he's addressed at least some of
20
yours, too, Mr. Dimond.
21
(WHEREUPON, a recess was had.)
22
HEARING OFFICER: All right. We are
23
back on the record. And I would note that
24
some off-the-record discussions have
193
1
occurred, and the District's question has
2
been answered, that they had directed to
3
Mr. Yoder.
4
So we're going to start with, I
5
believe, Stephen and the Citgo.
6
MS. WILLIAMS: Madam Hearing Officer,
7
would you like to have the list that you
8
requested before lunch?
9
HEARING OFFICER: Oh, I'm sorry. Yes,
10
you did say that. And this is a list that
11
was in response to some questions by
12
Ms. Franzetti.
13
It is the relative abundance of
14
all fish tax collected electro fishing from
15
Lower Dresden Pool between the I-55 bridge
16
and Dresden Lock and Dam for the period of
17
1994 to 2002. If there is no objection, we
18
will admit this as Exhibit 19.
19
Seeing none, it's Exhibit 19.
20
(WHEREUPON, said document, was
21
marked for identification as
22
Exhibit 19, was offered and
23
received in evidence.)
24
HEARING OFFICER: Mr. Yoder, who
194
1
collected this data, do you know?
2
MR. DIMOND: I was going to ask some
3
foundational questions.
4
HEARING OFFICER: Okay.
5
MR. MELAS: Good.
6
HEARING OFFICER: Let's go ahead with
7
Mr. Dimond.
8 BY MR. DIMOND:
9
Q. Good afternoon, Mr. Yoder, my name is
10 Tom Dimond, I'm here representing Stepan and
11 Company. Regarding the document, the three-page
12 document just marked as Exhibit 19, this is the
13 document that you received from Mr. Hammer at
14 U.S.EPA?
15
A. Yes.
16
Q. Do you know what the source of the
17 information on fish species that's recorded in the
18 document is?
19
A. I believe it is dated, it was
20 collected for Midwest Generation during that period.
21
Q. What's the basis of that belief?
22
A. Well, I recall that from participating
23 in the biological committee for the UAA process.
24
Q. Was this particular compilation
195
1 prepared by U.S.EPA or do you know?
2
A. I don't know. It could have well been
3 prepared by Ham & Associates.
4
Q. Right. Regarding your Exhibit 15, in
5 Appendix B starting at Page 73.
6
HEARING OFFICER: Excuse me,
7
Mr. Dimond, if this is one of your prefiled
8
questions, it would help the court reporter
9
to know which one it is. And if not, fine.
10
MR. DIMOND: I've got a few follow-up
11
questions, I'll let her know when I start in
12
on my prefiled.
13
HEARING OFFICER: All right. Thank
14
you.
15 BY MR. DIMOND:
16
Q. Mr. Yoder, this is the appendix that
17 has the tables with the monthly and bimonthly
18 ambient temperature statistics; is that correct?
19
A. Yes.
20
Q. Looking on these pages, I looked hard
21 but could not find anywhere where it told me, for
22 example, for Pages 74 and 75, where this data was
23 taken from in terms of the sampling location.
24
A. The sampling location is at the top of
196
1 the -- Page 74. It's a shaded area. It's called
2 Location, Cicero Avenue.
3
Q. Okay. Now I see where it is.
4
A. There are seven locations. I think I
5 said six, I miscounted.
6
Q. Okay. I couldn't -- I barely could
7 read it through the shading. Okay.
8
Then in your Exhibit 16, in table
9 Z(1), the page that begins Appendix Table Z(1), key
10 to footnotes, has a sentence at the top that says,
11 "Criteria may vary from the original author's
12 interpretation and are denoted by an asterisk."
13
What does that statement mean?
14
A. There were a few, and very few, where
15 the data presented in the report, the author may not
16 have identified one of the endpoints, but it was
17 evident from their data that that endpoint existed.
18 And that's a -- that's an option that I left open in
19 putting this table together.
20
Q. I'm sorry, you said they identified an
21 endpoint?
22
A. They may not have identified a certain
23 endpoint in their study, but there was enough data
24 in there to arrive at, perhaps, a conclusion of
197
1 that -- one of the endpoints. So we left that
2 option open.
3
And I -- any information then in
4 the table that's denoted by an asterisk would
5 indicate that. Actually, there's an endpoint -- or
6 excuse me, a footnote, M, also covers that.
7
Q. Okay. I'm going to start in with my
8 prefiled Question No. 1, which I will modify
9 slightly.
10
Mr. Yoder, our Prefiled Question
11 No. 1 was to ask you to provide the MBI database and
12 the fish temperature model. But, as I think I've
13 come to understand during the course of the last two
14 days, all the information in the database is
15 essentially in the appendices to the ORSANCO report,
16 Exhibit 14; correct?
17
A. That's correct.
18
Q. Is there anywhere in the appendices to
19 Exhibit 16 where you indicate how many organisms
20 were tested in a particular study?
21
A. No. Unless it's captured by one of
22 these footnotes, and I need to look at those, but I
23 don't recall getting that detailed communications in
24 this. You'd have to go to the original study to
198
1 find that out.
2
Q. Okay. I'm going to pass on my second
3 question.
4
HEARING OFFICER: Excuse me,
5
Mr. Dimond, may I note, just for the record,
6
you're going to say pass because it's already
7
been answered?
8
MR. DIMOND: Yes.
9 BY MR. DIMOND:
10
Q. On my third prefiled question, I think
11 that the first question there has already been
12 answered, so I will pass on that -- or not pass on
13 it, but I think it's already been answered.
14
The second question, though, said,
15 "Did you examine whether the 200 news study that you
16 added as part of the ORSANCO work themselves
17 included any adjustment factors to account for
18 differences from natural conditions"?
19
A. I'm not sure that would be possible,
20 because the CTM endpoint itself, that's the inherent
21 characteristic of that method, so there would not
22 have been any way for them to incorporate an
23 adjustment factor like that.
24
Q. Okay.
199
1
Similarly, I think all the
2 subparts of No. 4 have been answered. I do have one
3 minor question on that.
4
In terms of the two-degree safety
5 factor that you applied to several of the CTM
6 studies, did you reflect that in the information
7 that is in Table Z(1), or do you add that on at some
8 other point in the process?
9
A. No, that's done at -- the CTM values
10 are reported in Table Z(1) as they come out of the
11 studies. And then, if you use that as a model input
12 variable, then that adjustment is made at that
13 point.
14
Q. So if -- so, like, if we look at
15 Appendix Table Z(3), you haven't applied the
16 adjustment factor at this point either?
17
A. What table did you refer to? I'm
18 sorry, what number?
19
Q. In Table Z(3). Is the adjustment
20 factor reflected in the numbers in Table Z(3)?
21
A. I've got my pages scrambled here.
22
The upper lethal column, that's
23 where the safety factor would have been applied.
24
Q. So Table Z(3) does have the two-degree
200
1 safety factor in it whenever you've applied it?
2
A. Yes.
3
Q. Question No. 5 was, do you know
4 approximately what percentage of the original 370
5 literature sources relied on the CTM method?
6
A. No, not off the top of my head. I
7 don't know an exact number.
8
Q. And I think the other questions that
9 are part of No. 5 have been answered, No. 6 have
10 been answered, 7 has been answered, 8 has been
11 answered. In my Question No. 9 I've asked, were
12 there any species that were considered but not
13 included as modified use RASs, and that would be in
14 your Exhibit 15?
15
A. If I understand what you're getting
16 at, I think all the species in the -- yeah, all of
17 the species in Table 1 of Exhibit 15 --
18
Q. Yes.
19
A. -- pages 9 and 10, that was sort of
20 the universe of considerations. So when you'd
21 see species under the modified use column that do
22 not have an X, those were excluded from the modified
23 use.
24
Q. Question No. 10, what other species
201
1 have been identified in the UDI Pool, the Upper
2 Dresden Island Pool, of the Lower Des Plaines River
3 which were not included in the modified use RASs?
4
A. I didn't determine that.
5
Q. Okay. And so, you wouldn't be able to
6 answer Question No. 11 about what the inclusion of
7 those species would affect the result of the study?
8
A. Yes.
9
Q. I think No. 12 in my list has been
10 answered.
11
In No. 13, you state in Exhibit 16
12 that the list of representative fish in the ORSANCO
13 study was determined by a subgroup of the ad hoc
14 committee, which included members of the regulated
15 community and other stakeholders.
16
The first question in my question
17 was how were the representative fish species
18 identified for the Lower Des Plaines River study,
19 we've answered that. The second question was, was
20 there a chance for input on the selected species by
21 members of the regulated community or other
22 stakeholders?
23
A. No.
24
MS. WILLIAMS: Can I follow up here
202
1
for a second?
2 BY MR. WILLIAMS:
3
Q. Mr. Yoder, would it have been your
4 intention that the decisionmaker or even actually
5 maybe the biological subcommittee would have chosen,
6 amongst your options, to determine the proper RAS
7 list for a given segment of the water body? Do you
8 understand my question?
9
A. I think so, yes.
10
That -- I mean, that opportunity
11 was certainly there. That could have -- that could
12 have been done.
13 BY MR. DIMOND:
14
Q. Wouldn't it normally be preferable to
15 have that input before you run the model?
16
A. It's not required to have that input
17 to run the model.
18
Q. I understand it's not required, but
19 wouldn't it be preferable?
20
A. It depends on the purpose and use. I
21 would agree with you and in certain situations, yes.
22
Q. I think my Item 14 has been answered.
23
MR. DIMOND: So that's all I have.
24
HEARING OFFICER: Thank you,
203
1
Mr. Dimond. We'll go to Citgo's prefiled
2
questions.
3
MR. FORT: Yes. Thank you, Madam
4
Hearing Officer.
5 BY MR. FORT:
6
Q. Mr. Yoder, my name is Jeff Fort. I'm
7 here on behalf of the Citgo Refinery, which is
8 located in Lemont, Illinois. It discharges into the
9 Chicago Sanitary and Ship Canal.
10
Have you ever been at the
11 refinery?
12
A. No.
13
Q. From my brief description, do you have
14 a mental image of about where it is?
15
A. I'm not sure.
16
Q. Okay. Do you know whether it's
17 upstream or downstream of the electric barrier to
18 keep the invasive species from migrating into
19 Lake Michigan?
20
A. No.
21
Q. You have heard of this invasive
22 barrier previously?
23
A. The electric barrier?
24
Q. Yes.
204
1
A. Yes.
2
Q. What's your understanding of it?
3
MS. WILLIAMS: Can you tell me what
4
number in the prefiled questions this is?
5
I'm sorry if I missed it.
6
MR. FORT: It's not in the prefiled
7
questions.
8
MS. WILLIAMS: It's follow-up, okay.
9
MR. FORT: It's more follow up.
10
MS. WILLIAMS: That's fine.
11
MR. FORT: General knowledge.
12
MS. WILLIAMS: Okay. Thank you.
13 BY MR. FORT:
14
Q. Do you have any understanding of what
15 this electric invasive species barrier is or what
16 it's supposed to do?
17
A. Just in a very general sense.
18
Q. You don't have an opinion of
19 effectiveness or what the issues here might have to
20 do with that particular device?
21
A. I don't have any basis to judge its
22 effectiveness.
23
Q. Okay.
24
MR. FORT: Going to the prefiled
205
1
questions, Counsel, I think Nos. 18 and 19
2
have been answered.
3 BY MR. FORT:
4
Q. Twenty. Mr. Yoder, do you consider
5 yourself an expert on compliance measures to meet
6 water quality standards, such as those identified in
7 your report?
8
A. Well, I have multiple years of work
9 experience in that area.
10
Q. And what is your understanding of
11 compliance measures that might be necessary to meet
12 temperature standards, such as you're outlining in
13 your reports and testimony?
14
A. Do you mean like in terms of the NPD
15 excrements?
16
Q. I'm not thinking about the legal
17 device to enforce them, I'm thinking about the
18 practical ways to meet these kind of standards.
19
A. My experience is mostly with electric
20 generating stations and how you would set up a means
21 to determine compliance with thermal standards.
22
Q. And what are the kinds of measures
23 that electric generating station might take to meet
24 the temperature standards that you've outlined here?
206
1
A. I see. In terms of like pollution
2 controls?
3
Q. Yes.
4
A. Yes, I understand now.
5
Q. Okay.
6
A. There's -- it depends on the type of
7 discharge. If it's once thermal cooling, there's
8 the option to go to closed cycle. Or there's the
9 option to do what we call a thermal looping.
10
Q. Okay.
11
A. There's, I believe, some intermediate
12 options, like helper cooling towers, that type of
13 device.
14
Q. Have you ever been involved -- sorry,
15 go ahead.
16
A. I'm just saying that type of device.
17
Q. Have you ever been involved in
18 designing or specifying the characteristics of such
19 devises?
20
A. I have been involved in developing
21 thermal load management plans.
22
Q. And what's a thermal load management
23 plan, in your understanding?
24
A. Well, it specifies the limits under
207
1 which a power plant would operate, so that it
2 doesn't exceed the ambient temperature standards.
3
Q. Is this more of a measurement in
4 management decision tool, or is this the hardware
5 that helps that happen?
6
A. This is a management measurement meant
7 tool, the operational implementation is by adjusting
8 the operation of the facility.
9
Q. In your experience of whether it was
10 Indiana or Ohio EPA or anyplace else, have you had
11 experience with any other kinds of facilities
12 needing to do some sort of a thermal management plan
13 or cooling towers or anything else like that in
14 order to meet the standards, thermal standards, such
15 as what you're proposing here?
16
A. You'll have to pardon me, I have to
17 recall 30 years of memory. I believe I do recall an
18 oil refinery that we dealt with that had a thermal
19 discharge issue.
20
MS. WILLIAMS: How about municipal
21
facilities, Mr. Yoder?
22 BY THE WITNESS:
23
A. No municipal waste water treatment
24 plants, if you're referring to that.
208
1 BY MR. FORT:
2
Q. Okay.
3
A. I've heard of that in other states,
4 but I've never dealt with it.
5
Q. So you recall something vaguely about
6 a refinery; correct?
7
A. Oh, yes. I know which refinery it
8 was.
9
Q. What?
10
A. The BP refinery in Toledo, Ohio.
11
Q. Okay. And what do you recall about
12 those issues?
13
A. It was a thermal discharge to a highly
14 modified, highly polluted water body that had a lot
15 of the same questions about use attainability.
16
Q. Do you know if that refinery was
17 treating their waste water for nitrogen?
18
A. No.
19
Q. Okay. Are you familiar with the means
20 of treating waste water for nitrogen?
21
A. No.
22
Q. You're not aware that you need to heat
23 the water in order to provide nitrification
24 stability for --
209
1
MS. WILLIAMS: Objection.
2 BY MR. FORT:
3
Q. -- make the -- treat the ammonia,
4 particularly during the winter?
5
MS. WILLIAMS: I just want to say,
6
Mr. Yoder is not an engineer. We put his
7
resume, laid out yesterday, what he's here to
8
testify for. I mean, I don't have a problem.
9
If he wants to answer, he can answer. But it
10
just seems like we're going down a road where
11
we haven't tried to use him for this purpose.
12
Nobody has -- I'm just not sure the
13
relevance, I guess, of asking this witness
14
this line of questioning.
15
HEARING OFFICER: He can answer if he
16
can.
17
MS. WILLIAMS: Okay.
18 BY THE WITNESS:
19
A. I do understand it's difficult to
20 treat ammonia during winter.
21 BY MR. FORT:
22
Q. And in order to do that, you have to
23 heat the water in order to maintain the bugs so they
24 can nitrify; correct?
210
1
A. Yes.
2
Q. Going on on the prefiled questions, I
3 think No. 21 and 22 of mine have been taken care of.
4
No. 23, let me refine that a
5 little bit.
6
Did you collect any field data
7 from the Chicago Sanitary and Ship Canal that was
8 used in your report and testimony in this matter?
9
A. No. The data we collected in 2005 was
10 not used.
11
Q. Okay. That was the -- and that was a
12 test of the methodology used to do fish shocking, if
13 I remember your testimony?
14
A. Yes. It was a comparability study.
15
Q. It was really a measurement of how you
16 collect samples, as opposed to what the samples were
17 themselves?
18
A. Oh, no, it's done by actually
19 collecting a sample and then comparing the results
20 from two different samplers. So it's the same data.
21
Q. Do we know what's the availability of
22 that data? I thought you had asked for a copy of
23 that?
24
MS. WILLIAMS: I think we had said we
211
1
would look for it, but we didn't have it.
2
MR. FORT: Okay.
3
MS. WILLIAMS: As far as we knew and
4
U.S.EPA could get it for us.
5
MR. FORT: Thank you.
6 BY MR. FORT:
7
Q. I think No. 24 has been taken care of.
8
No. 25, let me modify this a
9 little bit.
10
With respect to the procedure that
11 you are using in your report, Exhibit 15, has that
12 been subject to a peer review or a publication in a
13 peer review journal?
14
A. Yes. It's patterned ORSANCO Document
15 Exhibit 16, references a study by Bush, et al., as
16 the basis of the methodology.
17
Q. Oh, I see. So you're saying your
18 methodology is patterned upon something that
19 somebody else has published and that has been peer
20 reviewed; is that correct?
21
A. Yes. This is a paper by Bush and
22 others, 1974, published in Environmental Science and
23 Technology.
24
Q. Okay. Since having developed that
212
1 methodology in the '70s, are you aware of any other
2 studies since there to demonstrate the accuracy of
3 that approach?
4
A. No.
5
Q. Are you currently collecting data to
6 demonstrate the accuracy of that approach?
7
A. Well, I'm -- we're continuing to work
8 on the approach and improving the accuracy is an
9 outcome that we hope is achieved.
10
Q. Okay. Thank you.
11
No. 27.
12
With respect to your literature
13 references, is that -- are all of those in -- was it
14 Exhibit 16 or 17 -- 16. Everything is in
15 Exhibit 16?
16
A. They're cited in 16.
17
Q. Got it. Thank you.
18
And with respect to that
19 literature, is there a methodology for weighting one
20 as being more authoritative than the other?
21
MS. WILLIAMS: I think we went over
22
this in a lot of detail, both yesterday and
23
probably today, too. How he prioritizes the
24
different studies, how he chooses the
213
1
averages, I mean all of that.
2
MR. FORT: If the hearing officer
3
thinks it's asked and answered, I'm perfectly
4
fine to move on, but...
5
HEARING OFFICER: Well, we discussed
6
how Mr. Yoder did it, was that your question,
7
how Mr. Yoder did --
8
MR. FORT: Yes, it was his --
9
HEARING OFFICER: Okay. Then, yes, we
10
have.
11
MR. FORT: Okay.
12
HEARING OFFICER: I was thinking of it
13
as a more broad question.
14
Thank you, Ms. Williams.
15 BY MR. FORT:
16
Q. Well, is there a broader way of
17 looking at that data and potential conflicting data
18 than the one you particularly used, Mr. Yoder?
19
A. Well, I won't rule out that somebody
20 else would come up with a different way of doing it.
21
Q. There really isn't a set protocol or
22 guidelines on how to choose amongst data that aren't
23 identical?
24
A. I can't point to anything --
214
1
Q. Okay.
2
A. -- that sets a methodology.
3
Q. Okay. Moving on to No. 30, I think 28
4 and 29 have been dealt with.
5
Your methodology that you've used
6 is not something that U.S.EPA has officially
7 embraced in a national publication or national
8 criteria?
9
A. No.
10
Q. I think 31, I'm going to remove. He's
11 not a standards expert.
12
I think 32 we talked about.
13
I guess 33 really gets me more
14 back into your report, Mr. Yoder. And I want to
15 understand Table 1.
16
A. In 15?
17
Q. In Exhibit 15, yes, sir.
18
A. Table 1, okay.
19
MS. WILLIAMS: I'm sorry, Jeff, I
20
think I missed where we're at now.
21
MR. FORT: Sorry?
22
MS. WILLIAMS: Is 33 where we're at
23
now?
24
HEARING OFFICER: Yes.
215
1
MR. FORT: Well, it's 33, but I think,
2
in order to do 33, I've got to ask some more
3
precise questions than what I had in the
4
prefiled.
5 BY MR. FORT:
6
Q. Do you have Table 1 there?
7
A. Yes.
8
Q. And maybe you should have Exhibit 19
9 at the ready as well.
10
A. Table 19.
11
Q. So if you'll bear with me, let me make
12 sure I'm understanding Table 1 correctly.
13
Under the category or secondary
14 contact you have eight individual species
15 identified; correct?
16
A. Yes.
17
Q. And it looks to me like the eight
18 species that you have under Secondary Contact appear
19 to be also in Exhibit 19. Is that how it should
20 have gone?
21
Exhibit 19 was the basis then to
22 come up with the listing of what was available in
23 different categories?
24
A. There -- according to -- under the
216
1 membership rationale column.
2
Q. Yes.
3
A. Anything with the 1994-2002 would come
4 from Exhibit 19. Any species that's marked
5 something else only would not have come from this
6 table --
7
Q. Okay.
8
A. -- necessarily. And I think there are
9 a couple of species that we included from a
10 historical basis, rather than being on this table.
11
Q. Well, the one that caught my
12 attention -- one of them that caught my attention
13 from Exhibit 19 was the fathead minnow, which, in
14 the Lower Dresden Pool, there's a grand total of
15 one. And it doesn't show up at all in the -- in
16 your Table 1 of Exhibit 15, as being found in the
17 1994-2002 report.
18
A. Right. But -- so its membership
19 rationale is historical.
20
Q. Okay. Do you have an explanation of
21 why fathead minnows would have been historical but
22 not present from 1994-2002 in the Lower Dresden?
23
A. Not a specific explanation, no.
24
Q. Okay. Do you know if the fathead
217
1 minnow has ever been found in the Chicago Sanitary
2 and Ship Canal?
3
A. I don't know that for sure.
4
Can I clarify one point though?
5
Q. Absolutely.
6
A. Part of the membership rationale for
7 an RAS is -- you can include a species that isn't
8 found in a particular area, but it has ecological
9 relevance to other species that are not represented
10 with thermal data.
11
Q. So you mean the fathead minnow has
12 relevance to things for which there is no data on
13 thermal effects?
14
A. It can be ecologically represented in
15 something like a secondary contact use, at least in
16 the way we were thinking about.
17
Q. Okay.
18
A. And you do get to kind of a critical
19 mass of data that you need to make this work. Eight
20 species is fairly minimal.
21
Q. What species would the fathead minnow
22 be the proxy for?
23
A. It's more of the tolerance of what you
24 would expect a secondary contact habitat to --
218
1
Q. Okay.
2
A. -- to support. So it is a species
3 that, throughout the Midwest, you might find in
4 other waters that are typical. But it's really --
5 it's the tolerance, the highly tolerant aspects of
6 that assemblage.
7
Q. So you're expecting it to be there,
8 even though it may not be something that gets found?
9
A. Right.
10
Q. Okay. And the black bullhead has a
11 grand total of three in the -- on Exhibit 19. And I
12 guess on your Table 1 it also shows up as only being
13 historical.
14
So that would be another one that
15 you assume to be there but wasn't found?
16
A. It wasn't found in this sampling, but
17 the historical means it was in the Fishes of
18 Illinois. And it was in close enough proximity to
19 this area that we included it.
20
Q. So the time period of '94 to 2002 is
21 not a big enough time period in order to assess the
22 native fishes?
23
A. No. And I think we recommend when
24 these lists are built that historical information be
219
1 accessed. Because oftentimes contemporary data can
2 be very unrepresentative of the potential of that
3 water body, if it is restorable.
4
Q. Now golden shiner appears to have
5 enough hits or findings at 21, even though it's a
6 half of -- less than .05 percent to still make into
7 Table 1 in terms of your species that you're looking
8 at; correct?
9
A. Yes.
10
Q. Do you know if either of these last
11 two species we talked about, the black bullhead or
12 the golden shiner are actually found in the Chicago
13 Sanitary and Ship Canal?
14
A. I'd have to look at the data to
15 determine that.
16
Q. Okay. Do you know from the list of
17 the eight species, the eight RAS for secondary
18 contact -- and the significance of that is that you
19 use those sensitivities to build your temperature
20 recommendations; correct?
21
A. Yes.
22
Q. Okay. Let me move on then to your
23 Table 3 of Exhibit 15.
24
MS. DIERS: Which is -- now we're
220
1
referring to HH. Because Table 3 was
2
corrected earlier, and I don't know if
3
Mr. Fort, if you were here when --
4
HEARING OFFICER: I was actually going
5
to ask Mr. Fort if he was going to look at
6
Table 3 in Exhibit 15 or HH.
7
MR. FORT: We have a correction to
8
Table 3, Exhibit 15?
9
MS. WILLIAMS: It was filed with the
10
proposal, the corrections to Table 3, and
11
referred to in the testimony and all of that.
12 BY MR. FORT:
13
Q. Are there any changes in Table HH to
14 the secondary contact list?
15
A. Yes, that's what changed.
16
HEARING OFFICER: Do you need a copy
17
of that?
18
MR. FORT: Please.
19
HEARING OFFICER: Here's my copy.
20
MR. TWAIT: That change was
21
represented in our proposal though.
22
HEARING OFFICER: Yes. This was
23
attached to HH, to the proposal itself.
24
MR. FORT: I see the numbers have
221
1
changed, the questions don't.
2 BY MR. FORT:
3
Q. So I understand this, the secondary
4 contact values here for temperature, are those that
5 are based upon these eight species that you have
6 listed with the X in Table 1 of Exhibit 15; correct?
7
A. Correct.
8
Q. Do you know of those eight which is
9 the most sensitive to elevated temperatures?
10
A. Okay. You would find that on Page 72
11 in Appendix Table 3(G), and it's the first species
12 that has its upper incipient lethal temperature
13 exceeded. And that would be bluntnose minnow.
14
Q. Okay.
15
HEARING OFFICER: I'm sorry, I lost
16
part of that.
17 BY THE WITNESS:
18
A. Bluntnose minnow.
19 BY MR. FORT:
20
Q. And what's -- the second most
21 sensitive then is...
22
A. Golden shiner.
23
Q. The golden shiner. Okay. Thank you.
24
Now, these temperatures that you
222
1 have in Table HH all have -- and let's just stay
2 with 100 percent function. Those assume that the,
3 at this temperature, all the species will continue
4 to live with a two-degree Fahrenheit margin of
5 safety?
6
MS. DIERS: Just to correct, for the
7
record, we're at Attachment HH, Table 3.
8
Sorry.
9
MR. FORT: Okay.
10 BY MR. FORT:
11
Q. Attachment HH, the modified Table 3.
12 So when you come up to value -- and let's just
13 say -- do the short-term survival of 90.3 degrees
14 Farenheit, that represents 100 percent survival with
15 a two-degree Farenheit margin of safety?
16
A. No.
17
Q. No?
18
A. There's no margin of safety for
19 short-term, it's the long-term that has the
20 two-degree centigrade margin of safety.
21
Q. Okay.
22
A. That's used as the average.
23
Q. Thank you.
24
So survival for long term includes
223
1 a two degree Centigrade margin of safety to
2 calculate your 86.7 Farenheit; correct?
3
A. Yes.
4
Q. Okay.
5
MR. TWAIT: Just for a clarification,
6
you said 86.7 degrees?
7 BY MR. FORT:
8
Q. So again with these -- in terms of the
9 species upon which these are based, it is based upon
10 the finding in the -- in a body of water other than
11 the Chicago Sanitary and Ship Canal. Because you
12 don't know if anything came out of the Chicago
13 Sanitary and Ship Canal?
14
A. No, it's -- as I explained, I think
15 yesterday, the concept behind the secondary use RAS
16 was what we would expect to be representative of a
17 fish assemblage that occurs in that type of water
18 body that we described as being highly degraded and
19 as also reflecting the minimum protection supported
20 by.
21
Q. Are these species the most sensitive
22 to elevated temperature also the basis for the
23 period average calculations, or is it different?
24
A. The period average is the maximum
224
1 value less two degrees C. So yes, it's related to
2 the determination of the short-term survival, so
3 it's a product of that.
4
And I think I explained before
5 that we're using it here as a surrogate for
6 long-term habitation avoidance.
7
Q. And that is also -- but that's not
8 true for the cold weather months; correct?
9
A. No, the nonsummer season is strictly
10 based on maintaining the background seasonal
11 temperature site.
12
Q. Do you know if the data included in --
13 which document was it -- Exhibit 16. Do you know if
14 that data for the -- which species was it?
15
The bluntnose minnow, did you know
16 what age of fish that represented?
17
MS. WILLIAMS: And I'll let him answer
18
the question he wants to, but -- if he knows.
19
But if he doesn't know, we've already
20
indicated earlier that we'll be following up
21
with the underlying studies for bluntnose
22
minnow as well as white sucker and entering
23
those into the record. Because those are the
24
species that drive --
225
1
MR. FORT: Okay.
2
MS. WILLIAMS: I don't think you were
3
here for that part, that's why I wanted to --
4
but if he knows the answer, I don't mind him
5
answering.
6 BY THE WITNESS:
7
A. Well, in looking at the -- just take
8 all the data that we have compiled for bluntnose,
9 and there are -- there's multiple studies available,
10 as there is for a lot of these tolerant species.
11 All of the studies, except one, dealt with adults.
12 And at least juvenile fish. In fact, the majority
13 were adults. One study was on young.
14
Q. Did you weigh those differently,
15 whether or not they were juvenile or adult?
16
A. I think based on the common knowledge
17 that we have had for 30 to 40 years in thermal
18 biology, that juveniles can produce higher
19 thresholds than adults, I think I would have
20 gravitated to adults first.
21
Q. Juveniles are less sensitive to
22 temperature than adults?
23
A. Yes. I know that's the reverse of
24 what it is for other substances.
226
1
Q. Okay.
2
Do you know if those fish were --
3 fish had been raised in a laboratory or had they
4 been extracted from the field and then tested?
5
A. I would have to look at the study to
6 see.
7
Q. Would that make a difference?
8
A. Possibly.
9
Q. Possibly because the laboratory raised
10 fishes might be more sensitive or not?
11
A. It could work the other way, too. But
12 a couple of these studies were -- I know for sure,
13 were wild fish. Some were field studies, field
14 observations. So those were definitely wild fish.
15
Q. Was that anything that you would use
16 for weighing your recommendations here?
17
A. Not for picking an upper lethal,
18 you're kind of constrained to lab study almost by
19 definition of the test for that. We might have had
20 a preference for field data for something like
21 avoidance temperature.
22
Q. Okay.
23
A. But again, it's based on the type of
24 study that was done.
227
1
Q. Okay. Are you aware of the findings
2 made by your colleague Mr. Rankin in terms of the
3 habitat of the Chicago Sanitary and Ship Canal, as
4 contrasted with the further down gradient waters?
5
A. Well, I'm familiar with his written
6 report.
7
Q. Okay. Are you familiar with the
8 extreme fluctuations in the Chicago Sanitary and
9 Ship Canal in terms of water height varying of four
10 to six feet in the matter of 24 hours or so?
11
A. Generally, yes.
12
Q. Do you think the temperature has a
13 greater effect upon fish than those water level
14 variations?
15
A. It depends on how serious the
16 temperature effects are.
17
Q. Okay.
18
A. It could trump water level
19 fluctuations but the reverse could be true as well.
20
Q. And what about the actual habitat
21 conditions? Could that also trump temperature?
22
A. Well, I think -- yeah. In those
23 extreme variations, the flow can certainly be
24 overruling.
228
1
Q. What is your -- do you have a view on
2 the effects of the lock and damn structures on the
3 Chicago Sanitary and Ship Canal on fish survival and
4 how they may -- how that might impact their success?
5
A. No.
6
Q. Do you have a particular understanding
7 of how the sanitary and ship canal is constructed
8 with locks along the various reaches?
9
A. Yes, I've been on the waterway at some
10 of those points.
11
Q. Okay. Do you have a view of the
12 effect of those devises on fish as compared to
13 temperature? Is that another one of those things
14 that could be more significant than temperature in
15 some situations and temperatures more significant in
16 others?
17
A. It could be.
18
Q. I think you indicated yesterday that
19 you'd worked on the Cuyahoga River system in
20 Cleveland?
21
A. Yes.
22
Q. How many locks and dams are there on
23 the Cuyahoga?
24
A. There are none.
229
1
Q. That's what I thought. Okay.
2
It is channelized, but it does not
3 have the restraining devices of lock and dams for
4 navigation?
5
A. That's right. It's open to Lake Erie.
6
MR. FORT: That's all I have.
7
HEARING OFFICER: Go ahead,
8
Mr. Dimond.
9
MR. DIMOND: I do have one question.
10 BY MR. DIMOND:
11
Q. Mr. Yoder, you've got this two-degree
12 safety factor that you applied to the results of the
13 CTM models; correct?
14
A. Yes.
15
Q. And you also applied the two-degree
16 safety factor between the short-term and the
17 long-term survival in your fish temperature model
18 will; right?
19
A. Yes.
20
Q. So in a particular instance, if in the
21 100 Percent column, where the driving entity is a
22 single species, you could actually have a
23 four-degree safety factor for the long-term
24 survivability rate; right? If the short-term
230
1 survivability is based on a CTM?
2
A. Well, they're really two different
3 concepts. They just happen to be the same degree
4 Centigrade.
5
Q. But you could end up with a
6 four-degree safety factor there; right?
7
A. I'm not going to characterize it that
8 way. I don't think --
9
Q. Well, it would be four degrees
10 Centigrade over the published literature of the CTM
11 result; right?
12
A. Yes. But the two-degree adjustment of
13 the critical thermal maximum is to make it more like
14 the preferred endpoints. Or just independent of the
15 other --
16
MS. WILLIAMS: I mean --
17
MR. DIMOND: Thank you. That answers
18
my question.
19
MR. FORT: I've got one more here.
20 BY MR. FORT:
21
Q. Mr. Yoder, I started asking you
22 questions about these eight species that you use for
23 secondary contact. You're not aware if in fact any
24 of these were found in the Chicago Sanitary and Ship
231
1 Canal?
2
A. I'd have to look at the data, I mean,
3 I'd be very surprised.
4
Q. You'd expect a couple would be?
5
A. Oh, yes.
6
Q. But whether all eight are isn't clear?
7
A. No.
8
Q. Thank you.
9
HEARING OFFICER: Mr. Ettinger?
10
MR. ETTINGER: I have some follow-ups
11
on the two-degree questions. I don't think
12
these were asked, at least my associates here
13
don't think so.
14 BY MR. ETTINGER:
15
Q. Where did you come up with the
16 two-degree safety factor between the short-term and
17 the long-term?
18
A. Well, it's inherently rule of thumb,
19 but it approximates -- I guess it approximates a
20 reasonable separation between a maximum and a longer
21 term average. And it also is sufficient separation
22 from a short term -- a criteria that's designed to
23 protect for short-term effects versus one that's
24 designed to protect for long-term effects.
232
1
And so, that's -- I mean, I think
2 that's the rationale. And I think the concept
3 imbedded in the long-term survival is that it would
4 minimally protect against long-term avoidance.
5
Q. Is there anything in the literature
6 that we can look at to find at that two percent
7 number, or how did we --
8
A. Two degrees C?
9
Q. I'm sorry, two degree number.
10
A. What I recall, some of the early
11 compendium that were written in what I call the
12 zenith of the thermal research of the 1970s, that
13 seemed to be one of the rules of thumb that was
14 referred to. And it may be in the Brun publication,
15 which was really the, at the time, one of the most
16 comprehensive compendium in 1974.
17
MR. ETTINGER: Okay. Well, can you we
18
go off the record here for a second?
19
THE HEARING OFFICER: Sure.
20
(WHEREUPON, discussion was had
21
off the record.)
22
HEARING OFFICER: Back on the record.
23
Mr. Howe, you can ask a question.
24
MR. HOWE: Peter Howe.
233
1 BY MR. HOWE:
2
Q. Mr. Yoder, do you know if the 1978
3 water quality standards for temperature in Ohio were
4 approved by U.S.EPA?
5
A. Yes, they were.
6
MR. HOWE: Okay. Thank you.
7
HEARING OFFICER: All right. Then
8
let's switch to Exxon Mobil.
9
MS. WILLIAMS: Is the District --
10
HEARING OFFICER: It was already
11
answered.
12
MS. WILLIAMS: Thank you. I missed
13
that.
14
MS. DIERS: Can we have just a moment,
15
please?
16
HEARING OFFICER: Sure.
17
(WHEREUPON, discussion was had
18
off the record.)
19
MS. WILLIAMS: Are we talking about
20
No. 12, Tom?
21
MR. SAFLEY: Since I have had the
22
benefit of the last two days, I'll be able to
23
ask them a little more eloquently than they
24
were written here.
234
1
Yes, Question No. 12 on Page 9 and
2
Question No. 15 on Page 10. But again, I'm
3
going to try to rephrase them in a way that
4
makes more sense in light of what we've been
5
talking about in the last couple of days.
6
HEARING OFFICER: Go ahead.
7 BY MR. SAFLEY:
8
Q. My name is Tom Safely, and I'm up here
9 right now on behalf of Exxon Mobil Oil Corporation.
10 And as I just indicated off the record, there are a
11 couple of our prefiled questions that I wanted to
12 ask you.
13
I have had the benefit now of
14 having been here for your testimony over the last
15 couple of days, so I think I'll be able to ask them
16 in a little more clear way than they were written
17 before we had the benefit of your testimony.
18
My first question is going to
19 spring from our prefiled Question No. 12, which is
20 on Page 9 of our profiled questions. And before I
21 ask it as it is written here, we talked -- or you
22 talked in response to some of the questions just a
23 little bit ago about just very generically some
24 options for facilities to address thermal issues and
235
1 their discharges to comply with thermal standards.
2 Do you remember that testimony?
3
A. Yes.
4
Q. Okay. With regard to your November
5 2005 report, which I think is Attachment B to your
6 testimony --
7
MR. SAFELY: Is that Attachment A?
8
MS. WILLIAMS: They were numbered.
9
HEARING OFFICER: It's Exhibit 15.
10
MR. SAFLEY: Okay. Well, we know what
11
we're talking about. I haven't kept track of
12
the numbers or letters the right way.
13 BY MR. SAFLEY:
14
Q. Was any consideration of methods of
15 treating a thermal discharge or reducing a thermal
16 load to achieve compliance, was that within the
17 scope of what you were tasked with doing when you
18 prepared that November 2005 report?
19
A. No.
20
Q. And did you in fact consider any of
21 those kinds of issues when you were preparing that
22 report?
23
A. No.
24
Q. So then, to get back specifically to
236
1 the question that's here, would it be then correct
2 to state that you did not, in considering that
3 report, take into account the operational impact to
4 a facility that would be required to adjust its
5 discharge every two weeks for five months of the
6 year in order to comply with the changing
7 temperature limit?
8
A. No.
9
Q. No, that's not correct, or no --
10
A. Oh, yes that is correct.
11
Q. Okay.
12
A. No, I did not take that into account.
13
Q. Thank you.
14
Then moving on, my next few
15 questions will stem from the prefiled Question
16 No. 15 at the top of Page 10 of the prefiled
17 questions. And again, we set this up in light of
18 the testimony that's been given.
19
There has been some discussion
20 today regarding the issue of excursions above a
21 maximum temperature water quality standard which
22 might be set. Do you recall that testimony?
23
A. The excursions that you're --
24
Q. I just want to make sure I understood
237
1 our earlier testimony -- or your earlier testimony.
2
One of the options -- or within
3 the options that your report provides to Illinois
4 EPA, are maximum temperatures; is that correct?
5
A. Yes.
6
Q. And there was some discussion earlier
7 about, in general, what the affect might be of going
8 above that temperature for some period of time. Do
9 you recall that testimony?
10
A. Yes.
11
Q. And where I wanted to go with this is,
12 did you or were you tasked with providing any
13 options to Illinois EPA on any kind of limit on
14 those excursions, either in extent of the
15 excursion -- of an excursion above the maximum
16 temperature or percentage of time that excursions
17 might be allowed to occur?
18
A. I wasn't asked to do that, no.
19
Q. Okay. Did you in fact provide any
20 options on that issue in your report?
21
A. No, I did not.
22
Q. Okay.
23
MR. SAFLEY: Those are -- that answers
24
these questions to the extent that they're
238
1
directed to Mr. Yoder.
2 BY MS. WILLIAMS:
3
Q. I may have already asked this earlier,
4 so I apologize if I'm re-asking it.
5
But, Mr. Yoder, do you have an
6 opinion personally about whether excursions of the
7 type just mentioned here by Mr. Safely are
8 appropriate with in a water quality standard?
9
A. My opinion?
10
Q. Your opinion. What's your opinion?
11
A. No, I don't think they should be done
12 in the standard. That's my opinion.
13
MR. SAFLEY: If I can follow up then
14
on that question.
15 BY, MR. SAFLEY:
16
Q. Mr. Yoder, you've obviously expressed
17 your opinion on that. We've also had some
18 discussion about specific aspects of water quality
19 standards that are up to a managing governmental
20 body to consider taking into account the options
21 that you have provided in your report.
22
Would that be something that
23 Illinois EPA in this case would be able to consider
24 and make a judgment call on whether it thought that
239
1 those excursions should be addressed in a water
2 quality standard?
3
A. That's their call.
4
MR. SAFLEY: That was my only
5
question. Thank you.
6
HEARING OFFICER: Ms. Franzetti?
7
MS. FRANZETTI: I'd actually like to
8
start with of couple questions for Mr. Esaig,
9
so we can put a little background to
10
Attachment S.
11
HOWARD ESAIG,
12 called as a witness herein, having been previously
13 duly sworn and having testified, was examined and
14 testified further as follows:
15
EXAMINATION
16 BY MS. FRANZETTI:
17
Q. And, Mr. Esaig, you had previously
18 testified the other day that on May 9th, 2007, in
19 your e-mail box appeared Attachment S; is that
20 correct?
21
A. If you're referring to the -- can you
22 tell me what attachment is, please?
23
Q. Oh, Attachment S is the field data and
24 QHEI.
240
1
MS. DIERS: Isn't Exhibit 5 that we've
2
marked, or are we talking about --
3
HEARING OFFICER: She's asking,
4
generally, about Attachment S, I believe.
5
MS. DIERS: So now we're in S. Okay,
6
I'm sorry.
7
MS. FRANZETTI: Yeah, not the
8
revised -- not the two revised sheets. I
9
want to go back to the beginning.
10
MS. DIERS: Okay.
11
MS. FRANZETTI: How the heck did we
12
get Attachment S?
13
MS. WILLIAMS: I would like --
14
MR. FRANZETTI: I think Mr. Esaig is
15
where it starts; correct? It came in through
16
an e-mail to you; right, Mr. Esaig?
17
MS. WILLIAMS: I would like to help
18
the court reporter here, Susan. I don't
19
think Howard has spoken here today or his
20
name has been spelled on the record.
21
So for the record we're -- the
22
Mr. Esaig we're referring to Howard Esaig,
23
E-S-A-I-G.
24 BY MR. FRANZETTI:
241
1
Q. Mr. Esaig, do you now have in front of
2 you Attachment S?
3
A. Yes, I do.
4
Q. Okay. And do you remember the other
5 day telling us that you received that on May 9th,
6 2007 by e-mail; correct?
7
A. Yes.
8
Q. And that e-mail was from U.S.EPA I
9 believe you said; is that right?
10
A. Ed Hammer.
11
Q. Ed Hammer, U.S.EPA.
12
Now, how did you come to receive
13 it? Did it -- did you ask for it, or did it just
14 pop up in your e-mail?
15
A. I don't remember exactly what the
16 circumstances were. I remember -- I think I had
17 contacted them about another matter, I believe, for
18 some other information.
19
I don't remember exactly why I --
20 I think we probably had talked about these things
21 and he offered to send it to me, I believe. But I
22 don't recall specifically.
23
Q. Okay. I'm just trying to --
24
MS. WILLIAMS: Can you clarify when we
242
1
say "Ed." I think it's -- I just want to
2
make sure when you say "Ed."
3
MS. FRANZETTI: It's Mr. Hammer.
4
MS. DIER: Thank you.
5
MS. FRANZETTI: Thank you.
6 BY MS. FRANZETTI:
7
Q. Mr. Esaig, did it come up in the -- as
8 you're saying, you were talking to Mr. Hammer about
9 you think a different project. And then, I take it,
10 he mentioned that he had this information, which
11 we're referring to as Attachment S, that had to do
12 with the Lower Des Plaines River?
13
A. I think that may have been what
14 occurred.
15
Q. Okay.
16
A. I'm not sure.
17
Q. I understand. As best you can recall,
18 he already had the info, he brings it up to you and
19 says, "You may find this to be of interest?"
20
A. Probably. I don't know if that was
21 what he said or not.
22
Q. I understand. Not verbatim. But,
23 generally, "Would you like to see this data"?
24
A. Sure.
243
1
Q. And you say, "Yeah, send it on"?
2
A. Yes.
3
Q. Okay. All right. So you get it.
4
And then, once you get it, what do
5 you do with it?
6
A. After I looked it over, I went ahead
7 and I believe I forwarded it on to Springfield.
8
Q. Meaning, Illinois EPA's office --
9
A. Yes.
10
Q. -- in Springfield, the water division?
11
A. Yes.
12
Q. Anyone in particular?
13
A. You know, I don't recall specifically.
14
Q. Okay. Would it likely have been the
15 people in the water division that were working on
16 the UAA?
17
A. Yes.
18
Q. Now, with respect to your involvement
19 with Attachment S, is that where it ends?
20
A. (No audible response.)
21
Q. You forward it on, and do you do
22 anything else with Attachment S?
23
A. I've looked it over.
24
Q. Okay. Let me be more clear and help
244
1 you. Did you talk to Mr. Yoder about it or anyone?
2
A. No, I did not talk to Mr. Yoder about
3 it.
4
Q. Did you talk to anybody else at
5 MBI/CABB?
6
A. No, I did not.
7
Q. Okay. So if I want to find anything
8 more about Attachment S and how it got prepared and
9 what it's all about, I shouldn't be talking to you;
10 is that right?
11
A. That's correct.
12
Q. Thank you. Okay.
13
MS. DIERS: I think Mr. Dimond had a
14
question.
15
MR. DIMOND: Yes.
16 BY MR. DIMOND:
17
Q. Mr. Esaig, when you sent the data to
18 other people at Illinois EPA, did you forward it by
19 e-mail?
20
A. Yes, I did. So there -- I could find
21 out for you who I sent it to.
22
MR. DIMOND: Madam Hearing Officer,
23
could we request that the e-mail from Mr. --
24
that a printed-out copy of the e-mail from
245
1
Mr. Hammer and Mr. Esaig's e-mail forwarding
2
it to other people be made part of the
3
record?
4
HEARING OFFICER: I think that's --
5
MS. WILLIAMS: It's fine with me. I
6
just don't think there's any dispute that we
7
got it via e-mail.
8
MR. ETTINGER: Is this a chain of
9
custody matter? I mean --
10
MS. WILLIAMS: I mean, is there a
11
question about any of that? Are you
12
concerned about the --
13
MR. DIMOND: It's not a chain of
14
custody matter, it's a matter of what
15
information Mr. Hammer may have relayed --
16
MS. WILLIAMS: Okay.
17
MR. DIMOND: -- in his e-mail when he
18
relayed the data.
19
MS. WILLIAMS: That's fine. I mean,
20
not today, obviously.
21
HEARING OFFICER: But before the March
22
hearing?
23
MS. WILLIAMS: Before the March
24
hearing.
246
1
MS. FRANZETTI: If I may, I'm going to
2
ask one of my prefiled questions on
3
Attachment S in order to, again, try and put
4
it a bit in context before I move to specific
5
questions about some of the other information
6
that was produced the other day and has been
7
marked as Exhibits 5-8. So I'm going to ask
8
the question, and I will leave it to the
9
panel of witnesses as to who is the one with
10
the responsive knowledge to the question.
11 BY MS. FRANZETTI:
12
Q. My question is, it appears that the
13 Illinois EPA is relying on the fact that the QHEI
14 scores for the Upper Dresden Pool range as high as
15 80, to conclude that the Upper Dresden Pool is
16 capable of maintaining a biological condition that
17 minimally meets the Clean Water Act aquatic life
18 goals. Is that correct?
19
Is that something you're relying
20 on for your finding that Upper Dresden Pool is
21 capable of meeting the Clean Water Act aquatic life
22 goal?
23
HEARING OFFICER: For the record,
24
that's Page 24 of the prefiled
247
1
Question(b)(2)?
2
MS. DIERS: Did you say Page 24?
3
MS. FRANZETTI: You are good.
4
MS. DIERS: Page 24, what question?
5
I'm sorry.
6
HEARING OFFICER: (B)(2).
7 BY THE WITNESS:
8
A. Yes, we considered the whole range of
9 scores.
10 BY MS. FRANZETTI:
11
Q. Well, that's not exactly my -- I
12 understand you considered the whole range. What I'm
13 trying to understand is, is the fact that the QHEI
14 scores you have, range as high as 80, one of the
15 factors you relied on in concluding that Upper
16 Dresden is capable of minimally meeting the Clean
17 Water Act aquatic life goals?
18
A. We concluded that, based on QHEI,
19 ranges from 45 and above were reasons to consider
20 the habitat limit.
21
Q. Okay. And is the Illinois EPA relying
22 on information contained in Attachment S to support
23 its statement that the QHEI scores for the Upper
24 Dresden Pool range as high as 80? Is that the
248
1 source of that statement that they range as high as
2 80?
3
I'm trying to put this in context
4 for all of us --
5
A. It came from Attachment S, yes.
6
Q. -- Where does this come from. It
7 comes from Attachment S.
8
MS. WILLIAMS: Is this coming from a
9
statement, a quote?
10
MS. FRANZETTI: It's coming -- it's my
11
prefiled question No. 3.
12
MS. WILLAMS: I'm sorry. Go ahead.
13
MS. FRANZETTI: It is in your
14
statement of reasons, I know at least it's
15
there, that the QHEIs range as high as 80 for
16
Upper Dresden Pool. I don't -- this
17
shouldn't be a shock, a surprise. And I'm
18
just trying to find out if the place I find
19
those QHEI scores that are as high as 80 is
20
in Attachment S.
21
Yes, Rob.
22
MR. SULSKI: Yes. We looked at
23
several sources of QHEI, so attachment S has
24
a value like that.
249
1
There may be other sources, we
2
have to look at all the different -- the data
3
and the attachments.
4
MS. FRANZETTI: All right. Let me --
5
well, fine.
6
MR. SULSKI: You know, there may be
7
some corresponding values there that, you
8
know, corroborate with that or whatever.
9
MS. FRANZETTI: Right. You're telling
10
me that Attachment S is at least one place
11
that I will find the source of the underlying
12
support for the statement that the QHEI
13
scores range as high as 80 for Upper Dresden
14
Pool.
15
MR. SULSKI: Correct.
16
MS. FRANZETTI: All right. I'm
17
submitting to you, and I'll go one -- I will
18
back this up with a question. But the whole
19
point of this is, I don't think so. I think
20
Attachment S is the only place where they
21
range as high as 80, and that leads to my
22
next question --
23
MS. WILLIAMS: Hang on.
24
You can answer that.
250
1
MR. SMOGOR: Okay.
2
I think that's correct.
3
MS. FRANZETTI: Thank you.
4
MR. SMOGOR: I'm sorry, my name is Roy
5
Smogor, S-M-O-G-O-R.
6 BY MS. FRANZETTI:
7
Q. Now, if we want to find the source
8 of -- or the support for that statement, the only
9 place we will find it is in Attachment S
10 information.
11
So let me ask my next question,
12 which is prefiled Question 5.
13
Is that correct that neither the
14 2004 studies reported in the Rankin CABB report in
15 Attachment R identified QHEI scores higher than 67
16 for the Upper Dresden Pool?
17
MR. SMOGOR: That's where I'm not
18
following you.
19
MS. FRANZETTI: Okay.
20
MR. SMOGOR: Because, from my numbers,
21
it looks like one of Rankin's scores from
22
Attachment R is a 69.5.
23
MS. FRANZETTI: All right. I'll
24
accept that.
251
1
MR. SMOGOR: Okay.
2
MS. FRANZETTI: That you think that's
3
the highest score that Mr. Rankin came up
4
with.
5
MR. SMOGOR: And, as far as I can
6
tell, there's two scores from the Rankin
7
report Attachment R from Upper Dresden Island
8
Pool.
9
MS. FRANZETTI: There were two
10
locations?
11
MR. SMOGOR: Two locations -- yes.
12
Two locations, each given a QHEI score.
13
MS. FRANZETTI: Okay. So from Mr. --
14
the highest in Mr. Rankin's is two locations
15
that scored 69.5.
16
MR. SMOGOR: No, I'm sorry.
17
Mr. Rankin has two locations, each having a
18
QHEI score. And the highest of those two
19
scores was a 69.5.
20
MS. FRANZETTI: All right.
21
MR. SULSKI: I have some sixties.
22
MS. FRANZETTI: Do you have them
23
somewhere other than Attachment R or S? Or
24
S. What I'm trying to do --
252
1
MR. SULSKI: Yes. You're just -- yes.
2
MS. FRANZETTI: -- is explain to the
3
Board that we have QHEI scores in
4
Attachment R, they top out at what I'm
5
accepting -- I'm accepting a 69.5. Then we
6
also have Attachment S. And, in there, they
7
hit a higher score of 80. There may be --
8
MR. ETTINGER: Excuse me. My mat may
9
be off, but I think 83 is bigger than 80;
10
isn't it?
11
HEARING OFFICER: I think you're
12
looking at the Exhibit 5.
13
MS. FRANZETTI: I'm talking about the
14
Upper Dresden Pool.
15
MR. ETTINGER: I'm looking at the
16
Des Plaines, and I see an 83 here.
17
HEARING OFFICER: On Exhibit 5 there's
18
an 83.
19
MS. FRANZETTI: We'll get to that.
20
These prefiled questions are based on
21
Attachment S and not any of the information
22
that's been produced in exhibits 5-8, 5 and
23
6, basically, revising what was in
24
Attachment S. And that's why my questions
253
1
are specific to Attachment S. Okay?
2
With respect to QHEI scores, we
3
have Attachment R, we have Attachment S. We
4
do also have the revisions to Attachment S.
5
Are there any other sources of
6
QHEI scores that the Agency relied upon in
7
coming to its determination that the Upper
8
Dresden Pool could minimally attain the Clean
9
Water Act aquatic life goal?
10
MR. SMOGOR: Yes.
11
MS. FRANZETTI: Okay. Where -- what
12
is that?
13
MR. SULSKI: In Attachment A.
14
MS. FRANZETTI: There's QHEI data in
15
Attachment A.
16
MR. SULSKI: Yes.
17
MS. FRANZETTI: All right. Do you
18
know what entity collected that QHEI data?
19
MR. SULSKI: I'll look, but I
20
believe --
21
MR. SMOGOR: Yes. EA.
22
MR. SULSKI: EA.
23
MR. FRANZETTI: And by "EA," we're
24
referring to EA Engineering, which is the
254
1
consultant to Midwest Generation; correct?
2
MR. SMOGOR: Yes.
3 BY MS. FRANZETTI:
4
Q. And that's -- they do -- they
5 collected that QHEI information as part of those
6 annual stream surveys that Midwest Gen was required
7 to do by the terms of it's adjusted standard?
8
A. Those were from --
9
Q. Sorry.
10
A. I believe they were collected in 1992
11 as a part of the studies for that adjustment
12 standard.
13
Q. Thank you. Yes. So those came before
14 the adjusted standard was received. They were
15 relied upon to obtain the adjusted standard; is that
16 what you mean, Mr. Esaig?
17
A. All I meant was they were collected in
18 1992 as part of that study.
19
Q. Okay. Now, going back to
20 Attachment S -- and before I want -- I just want to
21 get this in before we end today.
22
We had the other day when
23 Exhibit 8 was produced, which is the QAPP for the
24 Attachment S study.
255
1
HEARING OFFICER: Q-A-P.
2
MS. FRANZETTI: Q-A-P-P.
3
We had noted, while we were given
4
Exhibit 7, which is a collection of QHEI
5
field data sheets of the type that are -- a
6
sample is shown in Figure 5 of Exhibit 8, we
7
were not given a collection of the field data
8
sheets that are depicted in Figure 4 and are
9
used for the purpose of recording electro
10
fishing collection data. And I think an
11
effort was going to be made to ask Mr. Yoder
12
to bring those with him.
13
And so, I now ask, is there any
14
additional information, including but not
15
limited to the completed Figure 4 field data
16
sheets that you can -- the Agency can produce
17
to us?
18
MS. WILLIAMS: Can you give us a
19
minute to locate them? The answer is yes,
20
but let us -- if you want them entered now.
21
MS. FRANZETTI: I would have loved to
22
have gotten them yesterday, but...
23
MS. DIERS: We have them -- Susan, we
24
have them, we just need to make copies of
256
1
them. Sorry.
2
I thought they had done that
3
earlier for me. I apologize.
4
MS. FRANZETTI: Well, you know, the
5
day is long, it's the end of day, but just
6
for the record, we specifically asked for
7
these, we asked you to ask him for them.
8
MS. DIERS: We got them this morning.
9
MS. FRANZETTI: I understand. But
10
he's only here for --
11
MS. WILLIAMS: They were FedEx'd from
12
Ohio.
13
MS. FRANZETTI: He was only here for
14
one more day. If I hadn't asked the
15
question -- I didn't think he brought them.
16
I didn't think you had them. And I just
17
wanted to make it clear on the record that's
18
the case. So, I guess, if I hadn't asked the
19
question I wouldn't even be told that they
20
exist, you have them, but you just didn't get
21
them copied.
22
MS. DIERS: Well, I've got a lot of
23
other things to do. I got them this morning,
24
the copies were made --
257
1
HEARING OFFICER: Ms. Diers, we are on
2
the record.
3
MS. DIERS: I know we are on the
4
record, but I'm being accused of something.
5
HEARING OFFICER: We need to all take
6
a deep breath. We are going to have a copy,
7
I'm sure, to Ms. Franzetti before the end of
8
the day?
9
MS. DIERS: Yes.
10
HEARING OFFICER: At a minimum to
11
Ms. Franzetti?
12
MS. DIERS: Yes.
13
HEARING OFFICER: Thank you.
14
MS. FRANZETTI: Let me turn to the
15
QAPP, Exhibit 8.
16 BY MS. FRANZETTI:
17
Q. Mr. Yoder, I think these questions are
18 probably directed at you.
19
Let me ask the overall question:
20 Do you have a copy of the Exhibit 8 in front of you?
21
A. Yes.
22
Q. Okay. And do you recognize Exhibit 8
23 as the QAPP for this fish assemblage assessment of
24 the Lower Des Plaines River?
258
1
A. Yes.
2
Q. In performing this study, it says on
3 the first page submitted by Chris O. Yoder,
4 principal investigator and project manager. I take
5 it, you served in those roles for this project?
6
A. Yes.
7
Q. Now, with respect to performing this
8 study, did you do everything -- did you or your
9 staff do everything that this QAPP says would be
10 done?
11
A. Well, that's certainly the intent.
12
Q. All right. Well, let me put it
13 another way: Did you perform the study in
14 accordance with this QAPP, Exhibit 8?
15
A. Yes, I believe it was conducted in
16 accordance with the QAPP.
17
Q. Okay. You know, one other basic
18 point: Our copy lists a number of names under
19 approvals on the front page.
20
Is there -- and I'm not going to
21 ask for it, I just want to establish, did the person
22 listed here approve this QAPP?
23
A. Yes, they're signed -- there is a
24 signed original at EPA Region 5.
259
1
Q. That is signed by all four of those
2 individuals approving this QAPP?
3
A. Yes.
4
Q. Okay. Let me move on to a general
5 question Mr. Yoder.
6
I believe you testified the other
7 day that this proposal to do this study was made in
8 response to a request for bids by U.S.EPA Region 5;
9 correct?
10
A. Okay.
11
Q. It's been awhile, I may be remembering
12 wrong.
13
A. The grant under which this was done
14 was an award that was made to MBI after a request
15 for proposals and competitive process. This is just
16 one project done under that larger grant.
17
Q. Thank you. I do remember now that's
18 how you previously testified.
19
And as it says on Page 3 under the
20 Section A(3) distribution list, it was contemplated
21 that this data would eventually be used by Region 5,
22 Illinois EPA, Illinois DNR and others to address
23 multiple issues in the Lower Des Plaines, including
24 UAA. Do you see where I'm reading from?
260
1
A. Yes.
2
Q. So that was known at the front end of
3 the study, at least by you; correct?
4
A. Yes.
5
Q. And at least by MBI/CABB?
6
A. Yes.
7
MS. FRANZETTI: Now, can I ask the
8
Agency: Did the Agency know at the inception
9
of this project that this data was being
10
collected and would eventually be used by it
11
in connection with the UAA for the Lower Des
12
Plaines?
13
Yes, Rob.
14
MR. SULSKI: I can recall a
15
conversation, perhaps, at the stakeholder
16
meetings of the CAWS, UAA or somewhere in
17
that time frame at the end of those, that MBI
18
would be out collecting additional data on
19
these systems. But that's the extent -- I
20
had no -- I didn't have any documents.
21
MS. FRANZETTI: All right.
22
Well, Mr. Smogor, you're here and
23
you're listed there as one of the interested
24
contacts. What role did you play as an
261
1
interested contact in getting this project
2
going?
3
MR. SMOGOR: I don't recall.
4
MS. FRANZETTI: Do you recall any
5
role?
6
MR. SMOGOR: No, nothing specifically.
7
MS. FRANZETTI: Okay.
8
You don't recall discussing any of
9
these purposes of this study with people from
10
MBI/CABB?
11
MR. SMOGOR: No. Nothing
12
specifically.
13
We meet every now and again Region
14
5 -- biological assessment technical people
15
meet every now and again and discuss issues.
16
And sometimes Mr. Yoder is there and
17
sometimes Mr. Hammer is there.
18
And so, we may talk about ongoing
19
projects, in general, but I don't remember
20
any details.
21
MS. FRANZETTI: Okay. All right.
22
HEARING OFFICER: Excuse me,
23
Ms. Franzetti, Mr. Dimond has a --
24
MR. DIMOND: Mr. Sulski, the
262
1
stakeholder meeting that you said that this
2
may have been discussed at, was that CAWS
3
stakeholder meeting?
4
MR. SULSKI: Yes. But I don't mean it
5
was necessarily announced, that everybody
6
knew. I can recall during that period of
7
time that there was -- somebody was
8
collecting go additional data on the
9
waterways that could be useful to the
10
project.
11
That's -- and who said it exactly,
12
I can't tell you. But I can recall that that
13
--
14
MR. DIMOND: But that was at a CAWS
15
stakeholder meeting, not a Lower Des Plaines
16
River stakeholder meeting.
17
MR. SULSKI: That's correct.
18 BY MS. FRANZETTI:
19
Q. And now, Mr. Yoder, back to you. And
20 directing your attention still on Page 3 under A(4),
21 Project Task Organization.
22
And in the second sentence it
23 says, "Chris Yoder will serve as the principal
24 investigator and project coordinator. In this
263
1 capacity, he will provide the primary oversight and
2 management of all aspects of the project, including
3 participating directly in the field sampling and
4 ensuring that all methods and procedures are
5 followed."
6
Did you do that?
7
A. I did not participate directly in this
8 specific sampling, no.
9
Q. So that's one example of something
10 that was not done in the way the QAPP says; correct?
11
A. That's correct.
12
Q. Now, it says, another couple of
13 sentences on, "The CABB will assign a qualified crew
14 leader who will be responsible for all data
15 collection activities."
16
Who was assigned as that, quote,
17 unquote, "qualified crew leader"?
18
A. I believe for that project it was an
19 employee by the name of Alex Johnson.
20
Q. Do you know whether Mr. Johnson has
21 previously collected this type of data in the areas
22 covered by this work, i.e., Upper Dresden Pool? I
23 think there were some sampling locations below the
24 I-55 bridge, has he done it before in this area?
264
1
A. This is his first -- is was his first
2 survey of this river.
3
Q. All right. Okay.
4
Turning to Page 4. There is a
5 figure, Figure 1, Quality Assurance Project Plan
6 Functional Table of Organization. And we go from
7 the top box, CABB director Brian Armitage, directly
8 down to you, Mr. Yoder, as the principal
9 investigator and project manager.
10
And then, one of the lines down
11 from you is to the agencies and stakeholders. And
12 in that box is Illinois EPA, Illinois DNR and the
13 UAA study group.
14
Was the UAA -- well, who -- who is
15 the UAA study group that's referred to there?
16
A. Well, as I recall, that would have
17 been the -- my understanding was, and I put this
18 table together, because this is standard operating
19 procedure for QAPP -- Project QAPP. And I really
20 can't recall who the UAA study group was, that's
21 something that I put in there.
22
Probably my frame of reference for
23 that was something like the biological subcommittee
24 that I participated on before. So that was really
265
1 the intent.
2
Q. So the intent was -- your intent when
3 you prepared the QAPP was to give the biological
4 subcommittee group of the UAA stakeholders group for
5 the Lower Des Plaines some role in this project?
6
A. This table of organization doesn't
7 imply a confirmation of a role. It's more -- it
8 also indicates where the information can flow to and
9 who might be interested in it.
10
Q. Okay.
11
A. It doesn't necessarily mean that they
12 have to participate in the study.
13
Q. I understand. It can also just mean
14 that this is one of the entities to whom the
15 information collected in the study will flow to?
16
A. Yes.
17
Q. Did this information ever flow to the
18 UAA biological subcommittee, to your knowledge?
19
A. I'm not aware of that. I -- in actual
20 terms, that was up to Ed Hammer.
21
Q. So Mr. Hammer decided whether or not
22 any of the stakeholders were going to receive the
23 information collected as a result of this project?
24
A. Yes.
266
1
HEARING OFFICER: Ms. Franzetti --
2
MS. FRANZETTI: Time to stop? That's
3
fine.
4
HEARING OFFICER: Almost a quarter to
5
5:00. So let's go ahead and wrap it up for
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today and we'll start again tomorrow morning
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at 9:00 with Ms. Franzetti. Thank you
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everyone.
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(WHICH WERE ALL THE PROCEEDINGS
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HAD IN THE ABOVE-ENTITLED CAUSE THIS
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DATE.)
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267
1 STATE OF ILLINOIS)
2
) SS:
3 COUNTY OF COOK )
4
I, SHARON BERKERY, a Certified Shorthand
5 Reporter of the State of Illinois, do hereby certify
6 that I reported in shorthand the proceedings had at
7 the hearing aforesaid, and that the foregoing is a
8 true, complete and correct transcript of the
9 proceedings of said hearing as appears from my
10 stenographic notes so taken and transcribed under my
11 personal direction.
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IN WITNESS WHEREOF, I do hereunto set my
13 hand at Chicago, Illinois, this 11th day of
14 February, 2008.
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Certified Shorthand Reporter
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19 C.S.R. Certificate No. 84-4327.
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