1 STATE OF ILLINOIS)

)

3 COUNTY OF C O O K)

4 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

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.

)

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.

1 APPEARANCES:

ILLINOIS POLLUTION CONTROL BOARD:

Ms. Marie Tipsord, Hearing Officer

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

Mr. Anand Rao, Senior Environmental Scientist

Mr. Tanner Girard, Acting Chairman

Mr. Nicholas Melas, Board Member

Mr. Thomas E. Johnson, Board Member;

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

Ms. Stefanie Diers

Ms. Deborah Williams

Mr. Robert Sulski

Mr. Scott Twait

Mr. Roy Smogor

Mr. Howard Esaig;

THE NATURAL RESOURCE DEFENSE COUNSEL:

Ms. Ann Alexander;

1 APPEARANCES (cont'd.)

ENVIRONMENTAL LAW AND POLICY CENTER,

33 East Wacker Drive

Suite 1300

Chicago, Illinois 60601

312-795-3707

MR. ALBERT ETTINGER,

MS. JESSICA DEXTER;

appeared on behalf of ELPC, Prairie Rivers

Network, and Sierra Club;

FRANZETTI LAW FIRM, P.C.,

10 South LaSalle Street

Suite 3600

Chicago, Illinois 60603

312-251-5590

MS. SUSAN FRANZETTI,

appeared on behalf of Midwest

Generation, L.L.C.;

1 APPEARANCES (cont'd.):

HODGE DWYER AND ZEMAN,

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705

217-523-4900

MR. THOMAS SAFLEY,

appeared on behalf of the Illinois

Environmental Regulatory Group;

SONNENSCHEIN NATH AND ROSENTHAL, LLP,

7800 Sears Tower

Chicago, Illinois 60606

312-876-7934

MR. JEFFREY FORT,

appeared on behalf of Citgo;

1 APPEARANCES (cont'd.):

MAYER BROWN LLP,

71 South Wacker Drive

Chicago, Illinois 60606

312-782-0600

MR. THOMAS W. DIMOND,

appeared on behalf of Stepan and Company;

23 REPORTED BY: SHARON BERKERY, C.S.R.

CERTIFICATE NO. 84-4327.

HEARING OFFICER: Good morning. My

name is Marie Tipsord, and I've been

appointed by the Board to serve as Hearing

Officer in this procedure entitled Water

Quality Standards and Effluent Limitations

For the Chicago Waterway System and Lower

Des Plaines River, proposed amendments to

35 Ill. Admin Code 301, 302, 303 and 304.

Docket No. 408-9.

To my immediate right is

Dr. Tanner Girard, the acting chairman and

lead board member assigned to this matter.

Also present, to his immediate right, is

Nicholas Melas and Thomas Johnson at the very

end, two of our board members. To my

immediate left is Anand Rao, and to his left

is Alisa Liu from our technical staff.

I want to remind all the witnesses

they are still sworn in, and we are

continuing this morning with Midwest

Generation, LLC's questions for

Mr. Chris Yoder. And we'll discuss any --

we'll discuss how we proceed if Midwest Gen

gets in today.

And again, I will remind everyone

they're sworn in and let's begin.

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:

EXAMINATION (Resumed)

8 BY MS. FRANZETTI:

Q. Good morning, Mr. Yoder.

A. Good morning.

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.

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?

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

1 produced by the model. And it's just the way the

2 science is, not every study produces every endpoint.

Some produce only part of all the

4 possible experimental endpoints. That's just sort

5 of the lay of the land.

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.

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?

A. Yeah, that's correct.

An easy example is where the data

1 is primarily based on field observations. And as I

2 indicated yesterday, you really can't produce lethal

3 endpoints with field studies.

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.

Q. Can you maybe -- stay with that last

12 example you just gave us. Can you describe -- now

13 I'm on Question 1.

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?

HEARING OFFICER: Excuse me,

Mr. Yoder, before you do, I believe he

started off referring to as Attachment 3

also Exhibit 16 to the record.

MS. FRANZETTI: Yes.

23 BY THE WITNESS:

A. I'm refreshing myself with Exhibit 16,

1 the section that describes that.

Okay. This procedure was

3 established by the IOEPA methodology, and we simply

4 followed through with it in the update.

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.

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.

Q. Mr. Yoder, could you state the page

1 number that you're reading from --

A. Page 50.

Q. -- from Exhibit 16?

A. Page 50.

Q. Fifty.

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.

Based on -- can it be found there?

A. I'm not sure.

Q. Oh, okay.

A. I'm looking.

Q. What I was going to suggest is it,

16 instead, in Exhibit 16 somewhere?

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.

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

1 the differences between" -- and then that was the

2 sixth thermal endpoint and/or laboratory methods

3 that you've already read.

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.

A. Well, there -- I'm not sure there's a

10 formula here.

Q. Okay.

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.

So if you can -- and,

18 unfortunately, the appendix tables do not have page

19 numbers. But it's almost to the --

Q. Almost to the back. Almost to the

21 last page.

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

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.

Q. Can you look at Appendix Z(2)?

A. Yes.

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?

A. Yes. Lepisosteidae --

Q. Okay.

A. -- which it's a common --

HEARING OFFICER: Can you spell it for

the court reporter?

MS. FRANZETTI: I've got it.

L-E-P-I-S-O-S-T-E-I-D-A-E.

17 BY THE WITNESS:

A. These are the fishes known as Gars,

19 G-A-R.

20 BY MS. FRANZETTI:

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?

A. Yes. Well, for that family.

Q. Family, excuse me.

A. It's done by family.

And, in some cases, subfamilies,

5 or more than one family, live together.

Q. And what is that -- when do I use

7 that?

A. If -- for instance, if you're

9 missing -- if you're missing a value; okay?

Q. For a fish in this family?

A. Yes.

It's probably not the best

13 example --

Q. Why not?

A. -- to look at. Because it only has

16 one relationship between the upper avoidance and the

17 optimum.

If you look at -- let's --

Q. Well, stay with it for a moment,

20 because that's part of my question.

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?

A. Yes.

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?

A. Not for that family.

Q. So then, what do I do?

A. You use the average.

Q. Average what?

A. At the bottom. It's just the average

10 of all fish species.

Q. Oh, okay.

A. It's a stepwise process. You try to

13 get as close as you can, but we're limited --

Q. By the available literature?

A. -- by the available literature. And

16 that's not uncommon --

Q. Okay.

A. -- in water quality criteria

19 development.

Q. I understand. Really, I'm just trying

21 to understand how you do what you do.

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

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?

A. Yes.

Q. Okay.

HEARING OFFICER: Excuse me,

Ms. Franzetti, also you've been referring to

the 2005 LDP report, which was Attachment 2

to the testimony --

MS. FRANZETTI: Yes.

HEARING OFFICER: -- Exhibit 15.

MS. FRANZETTI: I'm sorry, I've had --

HEARING OFFICER: We've all been

living with it so much that it went by me at

first, too. But thank you. Sorry to

interrupt.

MS. FRANZETTI: That's the problem

with prefiled questions before exhibits are

numbered. I'll try and catch that as I'm

going through.

22 BY MS. FRANZETTI:

Q. Mr. Yoder, has anyone else followed

24 this extrapolation approach in deriving thermal

1 criteria?

A. I'm not aware of anything else.

Q. Moving on to Question 3 -- 3(a), I'm

4 going to rephrase it a bit.

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?

A. I developed those -- those are

9 actually holdovers from the 1978 Ohio EPA

10 methodology.

Q. So these --

A. So we simply used those, we did not

13 calculate new relationships.

Q. I think you're anticipating 3(b) of my

15 questions, which is fine.

So these were conversion factors

17 established back in 1978 when the original database

18 was created; correct?

A. That's correct.

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?

A. That's correct.

Q. Do you think it would improve your

2 conversion factors if you did update them based on

3 those 200 new studies?

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.

I really -- unless I really took a

9 look at it, I'd be guessing.

Q. Moving on to Question 4.

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?

A. If only one value, experimental value

18 for an endpoint, was available? I believe we did

19 that for the ORSANCO study.

Q. So you would extrapolate to get your

21 other --

A. I believe so.

Q. -- thermal endpoints?

A. Frankly, I'm not sure.

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?

A. No. What I'm doing -- I'm looking at

11 Appendix Table Z(3) in Exhibit 16 and...

Q. Why don't you actually tell us what

13 Appendix Table Z(3)'s purpose is?

A. This is actually the -- these are the

15 thermal tolerance values. Again, the four baseline

16 input values to the model.

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.

In that table there are -- besides

1 some of the values adjacent to them to the right of

2 the value, there may be an X listed.

Q. Yes, I see that.

A. That indicates, then, that that value

5 is an extrapolated value.

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.

Now, and I'm sorry, I'll try to

12 speed this up.

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?

A. Yes.

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?

A. Yes.

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?

HEARING OFFICER: On Page 14, just

to...

7 BY THE WITNESS:

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.

You're looking at the output here.

13 BY MS. FRANZETTI:

Q. Oh.

A. So if I could be so bold as to be

16 helpful here.

Q. I would love you to be helpful.

A. When we talked Appendix 3 yesterday --

Q. Excuse me?

A. When we talked about Appendix 3

21 yesterday.

Q. Yes.

A. Appendix Table 3 --

Q. (f) was it?

A. I believe.

HEARING OFFICER: Yeah, 3(f) in

Exhibit 15.

THE WITNESS: Do you know the page

number, by any chance?

HEARING OFFICER: Actually, yeah, it

would be 64.

THE WITNESS: Sixty-four, okay.

HEARING OFFICER: There's 1(f) and

then it's just right after that.

THE WITNESS: Yeah. Appendix

Table 1(f). They go 1, 2, 3 for the

different tables.

14 BY THE WITNESS:

A. So if you're -- are you looking at

16 that --

17 BY MS. FRANZETTI:

Q. I am.

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

1 use this method, basically, is what I'm getting at.

Q. Okay. You did not footnote Appendix

3 Table 1(f) with the Xs to denote what was an

4 extrapolated value; correct?

A. Yeah. These tables, actually, are

6 part of the model output, so...

Q. Okay.

MS. WILLIAMS: Can I ask a redirect at

this point?

HEARING OFFICER: Yes.

11 BY MS. WILLIAMS:

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) --

HEARING OFFICER: From Exhibit 16?

MS. WILLIAMS: Right, from Exhibit 16.

18 BY MS. WILLIAMS:

Q. I'm looking at it, I guess, to see if

20 there's any with three Xs.

Is that the proper way you would

22 go about defining an answer to that question?

A. Yes. That's what I was looking at,

24 too.

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.

HEARING OFFICER: Page 50 of

Exhibit 16?

THE WITNESS: Yes.

HEARING OFFICER: I know that's a real

pain, but when people read the transcript,

they're not going to know which one we're

looking at.

MS. WILLIAMS: Especially because

we're looking at 15 and 16 together.

HEARING OFFICER: Together, right.

16 BY MS. FRANZETTI:

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?

A. Yes.

Q. Which?

A. The mean weekly average temperature

23 for growth.

Q. Right.

So that one, is calculated from

2 the get-go for every species; correct?

A. Right.

Q. So we only have, actually, three that

5 can originate from an actual literature value;

6 correct?

A. Yes, you're correct.

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?

A. Yes. But there are more -- this is

12 where it gets a little confusing.

Q. A little? Sorry, couldn't resist.

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.

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.

Q. Okay.

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.

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?

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?

A. Yes.

Q. Moving on to No. 6.

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

1 based on extrapolated values?

A. This is going to take some looking at.

MS. WILLIAMS: Yeah, because -- let me

get this straight. We're talking about

all -- there's four general uses RAS lists?

6 BY MS. FRANZETTI:

Q. Let me clarify what I'm talking about.

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.

How do I determine whether that is

17 an extrapolated value or an actual literature value?

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.

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.

For example, let's look at the

9 short-term survival number, because that's really

10 where the most sensitive species --

Q. And that's the 88.7 degrees Farenheit

12 number?

A. Yes.

Q. Okay.

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.

Okay. So I know it's a white

19 sucker. I would go to Appendix Table Z(3) on

20 Exhibit 15 -- or 16.

Q. I'm sorry, give that me again.

Once I know it's white sucker from

23 Appendix Table 3(f) of Exhibit 15 I go where next?

A. Into Appendix Table Z(3) of Exhibit 16

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.

Q. Okay.

A. So that's how you would determine for

6 any of these results, whether it was --

Q. Can I just ask you to stay with

8 Appendix Table 3(f) for one more moment?

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?

A. Right.

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.

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 --

Q. Right.

A. -- and it's the first species,

2 northern pike.

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?

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.

Q. Okay. Thank you.

But moving on to Question 6, and I

11 think your answer is no, but let me just make sure.

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?

A. Yeah, for each option you'd have to go

19 through and determine that.

Q. Now, Question 7.

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

1 database compared to the old extrapolated endpoints,

2 those new data replaced -- and I recognize that

3 assumes something, let me back up.

"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?

A. Yes.

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?

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.

Q. So you haven't done any exercise to

19 try and see how good are your extrapolation

20 procedures?

A. Well, there is something in Exhibit 15

22 that gets at that.

Q. What is that?

A. It gets to the ends result of it. It

1 is Table 2.

Q. That's the fish temperature model

3 outputs for four RAS variations of the Illinois

4 general aquatic life use designation?

A. That's correct.

Q. How does that get at that?

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.

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.

Q. You lost me on the last one. The last

19 one is the same?

A. The bottom one, the general use RAS 3

21 that reduced some from the equation.

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,

1 and I look at the general use RAS 3 at the bottom,

2 was that where I was supposed to look?

A. If you look at the -- the short and

4 long-term survival values are the same.

Q. Okay.

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 --

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.

I may be comparing literature to

14 literature here; correct?

A. It's possible.

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?

A. Yeah, I would have to have the

20 original Ohio EPA raw database in front of me to

21 make that determination.

Q. Right.

A. And I don't have that in front of me.

Q. So we don't know whether we're

1 comparing literature to literature or extrapolated

2 to literature or extrapolated to extrapolated as we

3 sit here today; correct?

A. Yeah, I can't tell you that right now,

5 with certainty.

Q. Excuse me just a moment.

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."

To what data does your statement

13 refer?

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.

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

1 sentence.

"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.

So do you recall seeing any stream

14 survey databases for the lower Des Plaines River?

A. Yeah, that's -- I was provided a

16 summary of sampling data that took place between

17 1994 and 2002.

Q. Who did that sampling?

A. I believe I -- oh, I would assume it

20 was sponsored by Midwest Generation.

Q. Okay. And who gave you those

22 databases?

A. EPA.

MS. WILLIAMS: Can you clarify --

1 BY THE WITNESS:

A. It was a table of data.

MS. WILLIAMS: Chris, can you clarify

when you say "EPA," which one?

5 BY THE WITNESS:

A. Region 5.

7 BY MS. FRANZETTI:

Q. And is that table of data anywhere

9 included in the appendices to Exhibit 15?

A. No. Not the exact reproduction of

11 that.

But anything under the Membership

13 Rationale column that has a 1994 to 2002, appeared

14 in that table that I provided.

Q. In the Membership Rationale column,

16 which is table...

A. Table 1 of Exhibit 15.

Q. So you did rely, to some extent, on at

19 least -- strike that.

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

1 Midwest Generation; correct?

A. Yes.

Q. Okay.

HEARING OFFICER: Excuse me.

Mr. Yoder, is there any way that we could get

a copy of that?

THE WITNESS: I am -- I may have --

MR. SULSKI: I'm trying to figure out

if it's in the Lower Des Plaines UAA Study

Attachment A.

THE WITNESS: Yeah, we can try and

find it.

HEARING OFFICER: Thank you.

MR. SULSKI: And it may already be an

exhibit because we have data on fisheries

from both EA and MBI.

MS. WILLIAMS: But if it's not in the

record, we'll try and find it. And try and

provide it.

HEARING OFFICER: Thank you.

MS. WILLIAMS: Can I ask a redirect at

this time?

23 BY MS. WILLIAMS:

Q. I guess this is sort of a general

1 question that I thought of yesterday that didn't

2 necessarily fit in a particular place.

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?

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.

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.

MS. FRANZETTI: Can I have the answer

read back?

(WHEREUPON, the record was

read by the reporter.)

21 BY MS. FRANZETTI:

Q. Moving on to Question 2 on Pages 8 and

23 9 of your prefiled testimony.

You describe how you selected the

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.

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?

A. Is it possible for you to point to a

10 specific place in my testimony?

Q. Okay. Give me a second.

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.

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?

A. You want me to read my testimony?

Q. No, because what I'm trying to

1 understand is what criteria you use for -- who got

2 on the list for general use?

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.

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.

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.

Do you do another -- that's my

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.

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.

Q. Okay.

A. Species that did not have thermal data

12 were not listed on Table 1.

Q. Right.

A. I think that's where --

Q. Right.

A. -- we're having the difficulty.

Q. I understand.

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.

Q. Right.

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

1 that also have thermal data.

Q. Right. So -- but there's two criteria

3 for getting on the list.

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?

A. Yes.

Q. Okay.

MS. DIERS: Can we have just a moment,

please?

(WHEREUPON, discussion was had

off the record.)

MS. FRANZETTI: May I proceed?

MS. DIERS: Thank you.

MS. FRANZETTI: You're welcome.

17 BY MS. FRANZETTI:

Q. Question 2(b).

Can you tell me what species

20 dropped off the RAS list because there was not

21 thermal literature data available on those species?

MS. FRANZETTI: Counsel, I really

don't appreciate conversation in the

middle --

MS. WILLIAMS: I think he's explained

this already, and I was just --

MS. FRANZETTI: I'm looking for

examples.

MS. WILLIAMS: I think he explained

they had started with species that there was

data on, is all. I think you're asking

him --

MS. FRANZETTI: No, he didn't start

with species which there was data on. He

said he starts first with what does he think

are representative species. Then his second

step is do I have thermal data for all those

species, and the ones he doesn't drop off the

list.

16 BY MS. FRANZETTI:

Q. Who dropped off the list?

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.

Q. And where's -- is the original table

23 in either Exhibit 15, 16...

A. No, it's not. It's the one we were

1 trying to determine if it was part of the record

2 already.

Q. Oh, the 2000 -- I'm sorry, the 1994 to

4 2002 data?

A. Yes.

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?

A. Right. And I --

Q. Okay.

A. And I can't off the top of my head --

Q. No, that's fine.

A. -- I would be guessing.

MS. FRANZETTI: That's fine.

MR. ETTINGER: Can I ask a couple of

follow-ups here?

HEARING OFFICER: Identify yourself

for the record, please.

MR. ETTINGER: I'm sorry, I'm Albert

Ettinger and I represent the Sierra Club

Prairie Rivers Network and some other people.

5 BY MR. ETTINGER:

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?

A. Yeah, I think it was just the Lower

10 Des Plaines.

Q. Just the Lower Des Plaines.

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.

What similarly-sized rivers in the

20 region did you look at?

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

1 historical presence, and I used the 1979 version of

2 the Fishes of Illinois to help with that. And so...

HEARING OFFICER: Excuse me, is that

the publication?

THE WITNESS: Yes, it is.

HEARING OFFICER: By -- who published

the 1979...

THE WITNESS: If I can read the

citation. Smith is the author.

HEARING OFFICER: I apologize for

interrupting.

MR. ETTINGER: That's okay.

HEARING OFFICER: I just wanted to get

the reference in. That's fine. That's

sufficient.

16 BY THE WITNESS:

A. It's the State Fish Book of Illinois,

18 basically.

19 BY MR. ETTINGER:

Q. And so, how did you use the State Fish

21 Book?

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.

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.

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:

Q. Moving on to Question 3.

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."

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?

A. Yes. That and the Fishes of Illinois.

Q. Oh, I understand. But Fishes of

1 Illinois, that's not what you meant by sample data;

2 is it?

A. That's sample data.

Q. Oh, that is? Okay. All right.

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?

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.

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.

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

1 water quality standards, free from acute lethality,

2 et cetera.

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."

Can you explain what you meant by

10 your phrase "highly degraded"?

A. The worst of the worst. The examples

12 we have are the both physically and chemically

13 polluted waters.

Q. So when you say "physically," you mean

15 things like absence of any adequate habitat?

A. Yeah, gross habitat modifications from

17 a -- from the benchmark of a natural river use

18 system.

Q. Okay. Moving on to Question 5.

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

1 percentage of the species in each RAS grouping for

2 the four primary thermal endpoints."

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"?

And if it's easier for you to say

8 protect a given percentage to combine that, that's

9 fine.

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.

And again, for --

Q. Could I actually stop you?

A. Yes.

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?

MS. WILLIAMS: I don't understand the

question, do you?

1 BY MS. FRANZETTI:

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.

And Table 3 is modified use and

7 secondary contact.

A. That's correct.

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?

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.

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,

1 of course, the extension is that it will protect the

2 use.

MR. ETTINGER: May I follow up on

that?

MS. WILLIAMS: I would like to follow

up first, if that's okay.

MR. ETTINGER: Okay.

8 BY MS. WILLIAMS:

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.

A. I don't believe so, so no.

HEARING OFFICER: Ms. Dexter?

Identify yourself, please.

MS. DEXTER: I'm Jessica Dexter, ELPC.

21 BY MS. DEXTER:

Q. So are you saying that when you say

23 protected species, you're just protecting for

24 lethality, specifically short-term lethality, is

1 that what "protect" means?

A. Yes, protecting for that particular

3 endpoint, yes.

MR. ETTINGER: May I ask a further

question along that line?

6 BY MR. ETTINGER:

Q. In terms of protect, would those

8 temperatures protect fish larvae?

A. These are -- some of the data is based

10 on larval tests. But again, it's a mix of all life

11 stages.

Q. Are larvae, generally, more sensitive

13 to temperature than adult fish?

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.

MS. FRANZETTI: Mr. Ettinger, you

missed the testimony yesterday that most of

the literature values are based on juveniles,

larvae, first born, first-year young.

21 BY MS. FRANZETTI:

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

1 lists. Can you explain what you mean by

2 "potential"?

A. Where in my testimony?

Q. Bottom of Page 9.

Did you find it, Mr. Yoder?

MR. SULSKI: Bottom of Page 9, top of

the last paragraph.

8 BY THE WITNESS:

A. I see it. I apologize.

Potential RAS lists. So you're

11 asking what's the meaning of potential?

12 BY MS. FRANZETTI:

Q. Yes, what's your intended meaning

14 there?

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" --

Q. Is it -- let me ask a follow-up on

20 that.

Is it intended to have a similar

22 meaning to the meaning of attainability under the

23 use attainability analysis?

A. Not necessarily.

Q. Okay.

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.

And again, those necessarily

11 subsets of what really would exist out there.

Q. Okay. I'm going to move on to Topic J

13 QA/QC Question 1.

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.

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

1 make sure that that literature value was reliable

2 and credible?

HEARING OFFICER: Ms. Franzetti,

excuse me. I was just reminded. We talked a

lot about QA/QC yesterday.

MS. FRANZETTI: Okay.

HEARING OFFICER: Do you recall that?

I mean, because I think some of this might

have been covered yesterday. If not, I don't

want to --

MS. FRANZETTI: No, no, I understand.

I think, generally, in terms of what got into

the database.

HEARING OFFICER: Okay.

MS. FRANZETTI: And so, I guess I

would just ask -- maybe I can ask it a little

differently to shortcut it.

18 BY MS. FRANZETTI:

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

1 recommended criteria is?

A. Yeah, I did that as part of the

3 ORSANCO project. That's Exhibit 16.

HEARING OFFICER: ORSANCO, I think, by

the way, would you spell it? I think it's

the first time we've used it today.

THE WITNESS: O-R-S-A-N-C-O, all caps.

8 BY MS. FRANZETTI:

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?

A. Yes, we --

Q. All right.

A. -- talked fairly extensively about

18 this yesterday. I think I explained the procedure.

Q. Okay. Moving on to Question 2.

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.

Well, let me skip this, because I

24 think you've already answered what you did.

Moving on. Give me a moment, we

2 may -- some of these may also -- the rest of these

3 may also be --

HEARING OFFICER: You know what, I

think this might be a good time to take a

break.

MS. FRANZETTI: Sure.

HEARING OFFICER: I did want you to

look on that 1994, 2002 data and get back to

this after the break.

(WHEREUPON, a recess was had.)

HEARING OFFICER: Let's go back on the

record.

MS. WILLIAMS: Our belief is that the

information you relied on is contained in

Appendix A. But we're not convinced it's in

the same format. So he -- because we don't

have his list to compare to. He thinks he

has his list in his hotel room, and we will

try to provide it this afternoon, first thing

tomorrow, so that we can all compare and make

sure.

HEARING OFFICER: Attachment A?

MS. WILLIAMS: Did I say Appendix A?

I'm sorry. Attachment A should have the

substance of information but maybe not in the

same format.

HEARING OFFICER: Okay.

Ms. Franzetti?

MS. FRANZETTI: Yes.

7 BY MS. FRANZETTI:

Q. Mr. Yoder, I'm going to try and

9 condense Questions 2-7 into a single question.

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?

A. Only generally. I think I went over

21 that yesterday about my familiarity with the 1985

22 guidelines.

Q. I wasn't sure if it applied as well to

24 the QA/QC. So all right.

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?

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.

Q. Unless the Board or hearing officer

12 disagrees, I think we've covered No. 8 yesterday.

Moving on --

MR. ETTINGER: May I ask one question?

HEARING OFFICER: Sure.

16 BY MR. ETTINGER:

Q. Your report, did you ever discuss it

18 with officials at the U.S.EPA?

A. The --

MS. WILLIAMS: Which report?

21 BY THE WITNESS:

A. Exhibit 15?

23 BY MR. ETTINGER:

Q. Yes?

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.

Q. And did they review it with you?

A. Yes, they reviewed it.

MR. ETTINGER: Thank you.

8 BY MS. FRANZETTI:

Q. Well, given that Mr. Ettinger has

10 brought that up --

HEARING OFFICER: Let me have

Ms. Franzetti, and then we'll come back to

you, Mr. Howe.

14 BY MS. FRANZETTI:

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?

A. I'm not certain of -- I'd have to look

19 at my calendar to see what meeting I was at,

20 because --

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

1 a meeting with them regarding your recommended

2 temperature criteria?

A. Yeah, I think it was --

MS. WILLIAMS: Again, are we talking

about the Lower Des Plaines --

MS. FRANZETTI: Yeah.

MS. WILLIAMS: -- or the ORSANCO?

Okay, you're talking about --

MS. FRANZETTI: Lower Des Plaines.

10 BY THE WITNESS:

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:

Q. All right. Well, why don't you tell

17 us what was discussed in that meeting.

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.

Q. Oh, I really don't care about the

23 date, but let's get to the substance of the

24 discussion.

What was discussed?

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.

Q. What were some of the issues

6 surrounding that, as identified in that meeting?

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.

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.

Q. And has anything been done to make the

1 process better by you?

A. Oh, I have an ongoing project.

Q. But I take it that's not finished yet?

A. No.

Q. Okay. So, at this point, you don't

6 have anything to present that improves upon your --

A. No.

Q. -- Exhibit 15?

A. No, not yet.

HEARING OFFICER: Mr. Howe?

MS. FRANZETTI: Now --

HEARING OFFICER: I'm sorry.

MS. FRANZETTI: Oh, I'm sorry.

HEARING OFFICER: Mr. Howe had a

follow-up as well.

MR. HOWE: Mr. Yoder, could you tell

me --

HEARING OFFICER: You need to --

excuse me, you need to stand up and identify

yourself.

MR. HOWE: All right. Mr. Yoder,

could you tell me --

HEARING OFFICER: You still need to

tell me who you are.

MR. HOWE: Oh, you said, "Mr. Howe,"

I'm sorry.

HEARING OFFICER: Well, I know, but

the court reporter doesn't know that.

5 BY MR. HOWE:

Q. Peter Howe, H-O-W-E.

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?

A. Not entirely.

MR. HOWE: All right. Thank you.

HEARING OFFICER: Sorry,

Ms. Franzetti.

MS. FRANZETTI: That's okay.

15 BY MR. FRANZETTI:

Q. Mr. Yoder, did you get any written

17 comments regarding your Exhibit 15 from the U.S.EPA?

I'd have to look to make sure. I

19 believe I did, but I'm not 100 percent sure.

Q. Would you be willing to produce those?

A. If I can find them.

Q. Thank you.

MR. ETTINGER: Follow up on Mr. Howe's

question piqued my curiosity.

1 BY MR. ETTINGER:

Q. How does your methodology divert from

3 the Blue Book and Gold Book?

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.

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.

HEARING OFFICER: And what are the

Blue Book and the Gold Book?

18 BY THE WITNESS:

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?

MR. HOWE: Six.

1 BY THE WITNESS:

A. 1986, split the difference, EPA's

3 update to their water quality criteria document.

HEARING OFFICER: Thank you.

MS. WILLIAMS: It would be portions of

that document, probably not the whole thing,

but portions of the Gold Book are included in

Attachment V, the statement of reason.

HEARING OFFICER: Thank you.

Mr. Howe?

11 BY MR. HOWE:

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.

You say, basically, you looked

20 50 percent, you kept 50 percent in the growth and

21 you deleted the other 50 percent.

A. I'm a little confused. To clarify,

23 I'll read what the procedure says.

Q. Okay.

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."

And I think that is the 50 percent

11 that you're referring to.

Q. Yes, it is.

A. Note, the Gold Book makes no

14 recommendations on how to make these decisions.

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?

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

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.

Q. We --

A. It's also a period average --

Q. Okay.

A. -- for the entire summer.

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?

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.

MS. FRANZETTI: Madam Hearing Officer,

I would object at this point. We're well

beyond follow-up. We have limited time with

Mr. Yoder.

HEARING OFFICER: I agree, Ms.

Franzetti.

I'm sorry, if we have time later,

we can get back into this.

2 BY MS. FRANZETTI:

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."

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.

A. They were.

Q. They were. So why the caveat "as much

21 as was possible"?

A. Well, I mean, what are the boundaries

23 on those previous terms? I mean, short of calling

24 and updating an individual study?

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.

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."

I don't understand what you mean

14 by "acceptance of extrapolated citations."

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.

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.

There was no army of lab

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.

These were reputable references,

6 it's common knowledge among those in thermal biology

7 that these are the leading compendia.

Q. Okay. And then it goes on --

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.

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 --

Q. I understand.

A. And extrapolated is in quotes in the

22 report. So that's what I meant by extrapolated.

Q. And then it says, a notation was made

24 about the extrapolated citation of such references."

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?

A. I have to look at Exhibit 16 for that.

6 I'm not really sure I'm --

Q. Tell --

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.

Q. Would you prefer to, or can you do

12 that over the lunch hour? Unless you think you can

13 quickly find it.

A. I'm not sure, I have to dig into this

15 report a little bit and figure that out.

Q. All right.

A. I don't know.

Q. Moving on then to Question 10.

MS. WILLIAMS: At this point, I'd like

to -- I mean, I'm not objection to the

question, I'm just suggesting that, as I read

Question 10, it's a question for Mr. Twait

and not Mr. Yoder.

MS. FRANZETTI: Well, I was going to,

actually, before I read it say that this is

an example of where having to question

Mr. Yoder before having questioned Mr. Twait

is a problem. And this question presumed

that that questioning --

MS. WILLIAMS: We can ask the question

of Mr. Twait today, that's fine. I just

don't want to take away from your time with

him.

MS. FRANZETTI: I appreciate that. I

think all we need to do for Question 10 is,

if Mr. Twait can confirm, whether or not our

understanding that the proposed Upper Dresden

Pool Aquatic Life Thermal Standards, that the

thermal values on which the period average

limits are based, were based on the white

sucker species literature data from

Mr. Yoder's work?

MR. TWAIT: Yes.

MS. FRANZETTI: Yes, okay.

21 BY MS. FRANZETTI:

Q. So with that established, that the

23 period average proposed thermal standards for the

24 Upper Dresden Pool aquatic life use designation are

1 based on literature data for the white sucker

2 species, Mr. Yoder, I'm going to move to Question A.

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?

A. I would agree with that.

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?

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.

Q. Mr. Yoder, can I go on, or are you

21 still looking?

A. No, I'm just making sure because what

23 I recall doing, I think I took the average of those

24 two studies.

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?

A. I believe I did.

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?

A. Not this week. They're in Ohio.

Q. But you're willing to make a copy,

13 send it to --

A. Yes.

Q. -- Illinois EPA, who can, perhaps,

16 distribute it in this proceeding?

A. Yes.

Q. All right.

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?

A. No. I'm reasonably sure I did an

24 averaging --

Q. Okay.

A. -- just looking at the raw data

3 compilation.

Q. Mr. Yoder, can you tell us where you

5 looked -- well, first -- strike that.

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?

A. I looked in 16.

Q. In 16. Okay.

Now, can you direct me to where in

13 16 you found that information?

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...

Q. Okay. Well, do I start looking for

18 white sucker, as I look in this?

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.

MS. WILLIAMS: I believe it's like the

12th page of --

MS. FRANZETTI: I'm there.

MS. WILLIAMS: Twelfth page of when

you started the -- family.

4 BY MS. FRANZETTI:

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.

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.

The numbers in parentheses are the

16 test acclimation temperatures.

Q. Okay. So the McCormick 1977 study

18 reported all of those numbers to the left under

19 Upper Lethal?

A. Yes. All of the numbers under Upper

21 Lethal.

Q. Okay. And when say you took the

23 average, did you start off by taking the average of

24 all those reported values?

A. No, I took the highest acclimation

2 temperature.

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?

A. Right. There's actually three results

7 reported there. And each one has a footnote.

Q. Yes.

A. And you have to go back to the key to

10 Appendix Z(1) to find out what those footnotes mean.

Q. Okay. But I'm just -- I'm just -- you

12 said you didn't average all of these.

You instead took the values for --

14 from the highest acclimation temperature. And I

15 thought that's the number in parentheses?

A. Right.

Q. Okay.

A. But there's three values reported for

19 one of those.

Q. Okay. All right. You're a step ahead

21 of me.

I just first want to establish

23 that 21.1 is the highest acclimation value there.

A. Correct.

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?

A. That's -- that's an option. And

5 again, I'm recalling what I did. Okay?

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.

Q. All right. I understand you.

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?

A. Well, I -- in looking at -- I recall

17 that I did some averaging.

Q. Okay. You can tell me that much about

19 how you got that number?

A. Yes.

Q. Okay.

A. And I could for sure tell you it was a

23 result of averaging some of these numbers.

Q. Okay. And that, I guess, would also

1 apply -- now that I understand the columns, you may

2 have also thrown in those two values from the -- is

3 that the --

A. Bruns and Jones.

Q. From the Bruns and Jones 1977 --

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.

Q. Oh, maybe you just used the average of

10 those two values?

A. Yeah. And this was --

Q. Okay. All right.

HEARING OFFICER: Excuse me,

Ms. Franzetti.

You may have answered this

yesterday, but did you keep any notes or any

way that you can track back or provide us

with the information on how you manipulated

this?

THE WITNESS: I think I can, and

that's what I'm not sure of. This project

ended sometime ago, and we've gone to other

things since. But I do have the original

notes and documentation in Columbus, at my

office.

HEARING OFFICER: If we could get

that, that would be helpful.

MS. WILLIAMS: What do you mean "get

that"? Like all his notes, or for this

species?

Because she's asking just about

one species of all of these lists of species.

So I just want to be clear.

HEARING OFFICER: Well, right this

second she's asking about one species of all

the species. But we've been talking for two

days now about how --

MS. WILLIAMS: Right.

HEARING OFFICER: -- the numbers were

generated.

MS. WILLIAMS: So you're --

HEARING OFFICER: And if we could get

some indication, I think that might be

helpful.

MR. RAO: Ms. Williams, when you said

all notes his notes, is it like thousands of

pages or --

MS. WILLIAMS: I don't know. I don't

know. I just want to be clear.

MR. RAO: We're not asking for like

boxes of stuff, but a few pages, something,

it would be helpful, because there is so much

discussion about it.

MS. WILLIAMS: Okay. I think I

understand.

MS. FRANZETTI: If I may add to that:

I mean, the last day and, I guess, almost a

half, has been helpful in improving our

understanding of what Mr. Yoder did and how

he did it. It has filled in a lot of the

gray area.

However, as we're focusing on

right now, the fact is, that his -- one or

more of his numbers is taken from his table,

whether it's two or three, and put into the

Illinois EPA's proposed thermal water quality

standards. Nothing is done, nothing is

changed about that number.

So it becomes critical for us to

understand the basis for that number. And

with that in mind, I would ask -- I think

it's probably directed at Mr. Twait, but,

obviously, subject to his counsel's

agreement -- we need the Illinois EPA to

identify for us -- we shouldn't have to go

through all this questioning to understand

it.

Which of your proposed thermal

standards numbers are based on the same

number as contained in Mr. Yoder's thermal

endpoint tables? And for those, I would

submit that it is reasonable to ask the

Agency with Mr. Yoder, at least for those, to

bring forward and clearly identify what were

the studies on which -- you know, what

studies -- just as we just started to do here

for white sucker, what studies are those

based on, to the extent there had to be then

averaging of those values. If somebody could

just give us clear record of how we got to

these proposed numbers.

MS. WILLIAMS: I think I understand

now. And I agree absolutely that to the

extent the RAS list we chose focus on a

particular most sensitive species that we

will provide whatever we can find to support

those studies for those species that are --

MS. FRANZETTI: That are driving the

proposed thermal --

MS. WILLIAMS: I think that's fine.

I'm just concerned, as Mr. Yoder testified

yesterday, you can change your input into

that database. And once you -- you know,

then it may become a different species.

I didn't want to be -- this to

every study relied on for every species that

can potentially become --

HEARING OFFICER: No. I think what

we're all asking for is that -- what we are

asking for is that, if the RAS' that were

chosen, if there were five studies and for

some reason he discarded three of them and

averaged two, that we know that.

MS. FRANZETTI: And if I could add, as

well, it would also be helpful to know for

those, quote, unquote, "most sensitive"

species numbers that are driving the proposed

thermal water quality standards, are those

numbers based, in whole or in part, on

extrapolated values.

And I recognize, Mr. Yoder, you

showed me how to do it, and it -- but it just

really becomes the difference between this is

a lot of work. And given that it doesn't

have to be done on every single one of these

species, can we at least provide -- and I

think it would help the Board, it would

certainly help my client -- to know to what

extent these proposed standards are based on

extrapolated values rather than even a

laboratory test result.

MS. WILLIAMS: And without trying to

go into what Mr. Twait's testimony will be,

my understanding then would be we would be

looking at two species, white sucker and I

think bluntnose minnow, and we will get, to

the fullest extent we can, any information

about how the numbers that those are based on

are based. Or were derived, extrapolated,

which studies -- I would expect the Board

would even probably need to have those

particular studies entered in all of that for

those two species.

HEARING OFFICER: Yes.

1 BY MS. FRANZETTI:

Q. Moving on to Question 11.

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?

A. Yes, I agree.

Q. Okay. Moving then to (b).

If you agree, does this suggest

11 that a valid endpoint cannot be derived using only

12 one or two individuals?

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.

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.

I think it should also be weighed

22 against not having any information at all.

Q. And taking the next step, Question C.

Would you also agree that an

1 endpoint should not be determined using only one or

2 more tests involving one or two individual

3 organisms?

A. I think I kind of have to disagree

5 with that one. I mean, these studies get published

6 in peer review journals.

And I get the strong impression

8 that's the gold standard that we hold everything up

9 to.

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?

A. Yes.

Q. All right. So --

A. That tells me that scientists, who are

16 part of that community of work, whoever reviewed

17 that paper, accepted that.

Q. All right.

A. They might have commented on it, but

20 they accept it.

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

1 scientific community; correct?

A. I think that's what we all operate by

3 in science.

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?

A. Yeah, I think we talked about one of

9 those studies yesterday.

Q. And I believe that was marked as

11 Exhibit 18 as an example, that your database does

12 contain such studies?

HEARING OFFICER: We don't have an

Exhibit 18.

MS. DIERS: I think 17.

HEARING OFFICER: Seventeen.

MS. FRANZETTI: Seventeen. Sorry, I'm

bad on exhibit numbers.

19 BY THE WITNESS:

A. That's correct.

21 BY MS. FRANZETTI:

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

1 studies."

Is it correct that a CTM value,

3 albeit not an accurate one, can be obtained based on

4 testing only one fish?

A. I would assume that's possible.

Q. Are you assuming it or do you know?

A. I don't know for sure, but you can do

8 a CTM test on one organism.

Q. Okay.

A. Yes, I know that for sure.

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?

A. Well, again, the study, the exhibit we

16 talked about is one such example, although, I

17 believe it was two fish.

Q. But you can't really tell me to what

19 extent your database --

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.

Q. Moving on to Question 12 then.

Did you ever conduct sensitivity

2 analysis to evaluate the level and significance of

3 the many sources of uncertainty in your model?

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.

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?

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.

Q. Any other sensitivity analyses that

18 you believe were applied?

A. No.

Q. Moving on to K. Temperature criteria

21 options. This begins at Page 10 of your prefiled

22 testimony.

Question 1, how did you decide

24 what period of time the period average temperature

1 criteria should cover?

A. If I could clarify, it seems to me

3 you're talking about the mid-June to mid-September

4 time period?

Q. No. Actually...

A. Or all of them?

Q. Well, all of them in the sense that --

8 let me back up and explain the basis for that

9 question.

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?

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

1 result in the highest temperatures seen on an annual

2 cycle.

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.

Q. It changes rapidly from season to

10 season, is that what you mean, when you say from

11 summer to fall to winter?

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.

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.

And again, we did that in

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.

Q. Sure that doesn't sound like it would

5 take us a long time.

And, I'm sorry, did you say

7 Exhibit 16?

A. Yes.

Q. Page 42, by any chance?

A. I'm not sure that's a good example.

Q. Okay.

A. I'm trying to find a good example

13 here. Maybe Page 31 would be better to look at.

Q. Page 39?

A. Thirty-one.

Q. Thirty-one?

A. Yes, 31. Actually, let's try Page 32,

18 that may even be better.

Q. At the top of the page it's ORSANCO

20 Temperature Criteria Re-evaluation, January 22,

21 2006. And this is Figure 4?

A. That's correct.

Q. Just so everybody is with us.

Go ahead, Mr. Yoder.

A. Okay. Let's take the upper left-hand

2 graph as an example. And what this graph

3 illustrates is the --

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 --

A. Yes.

Q. -- 1994 to 2003?

A. Yes, that's correct.

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.

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.

The top of the box is the 75th

19 percentile.

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?

A. Right. That's the whisker -- it's the

24 box, it's the shaded area. The bottom of the box is

1 the 25th percentile.

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.

If you see dots also above the

8 whisker, those are statistical outliers, so...

Q. Oh, we got a lot of dots in February;

10 correct?

A. More information that you needed.

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.

A. We don't -- to illustrate the point,

17 we don't need to get into all of that.

Q. Right.

A. So you can see that in January and

20 February -- let's just look at the median

21 temperature for simplicity.

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

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.

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.

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.

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 --

Q. Right. And if I can --

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.

Q. Right.

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.

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?

A. Which month are you looking at?

Q. I was looking at June. I thought I

17 was looking at June?

A. Yes.

Q. Okay.

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

1 month; is that correct? Is that the way to kind of

2 visually get sense of what these charts are showing

3 us?

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.

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?

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.

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?

A. I don't mean to be a stickler on

5 semantics, but we -- these aren't recommendations,

6 they're options.

Q. Okay. You want me to use the term

8 "option"? Okay.

A. I would prefer that, thank you.

Q. I'm sorry, I'm not purposefully --

A. I understand.

Q. -- misusing the terminology.

Okay. Did you give them options?

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.

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.

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.

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 --

A. No, they are the same. You're

11 correct, they are the same.

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?

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.

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?

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.

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?

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.

And there are some that use

19 similar period averages, not all. Most states

20 are -- have very simple temperature criteria.

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.

MS. WILLIAMS: I apologize if I missed

it, but did you refer to a page in Exhibit 16

for that table you're taking about?

10 BY THE WITNESS:

A. Oh, for the State summaries? It

12 starts on --

MS. WILLIAMS: Well --

MS. FRANZETTI: That's okay.

MS. WILLIAMS: This is a question I

think I wanted to bring up later in redirect,

that, typically, the Board will ask the

Agency to give them as much information as we

have about what's out there in the different

states.

21 BY MS. WILLIAMS:

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?

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.

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.

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.

Q. And have many states updated their

24 standards since 1972?

105

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.

MS. WILLIAMS: Thank you.

5 BY MS. FRANZETTI:

Q. Mr. Yoder, turning to Question 2.

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?

A. I think that's up to the people that

13 convert these into standards.

Q. You don't have a -- do you have a firm

15 opinion on that or no? It's -- it depends?

A. My opinion would be, if these get

17 exceeded, is everything going to crash? No.

Q. Okay. Question 3.

On Page 10 of your prefiled

20 testimony -- give me just a moment here.

MR. ETTINGER: Can I just follow-up on

that one second?

23 BY MR. ETTINGER:

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?

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.

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.

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.

So we can't just take a river up

3 to the standard, keep it there forever. I mean,

4 there's this (indicating).

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.

Q. You said '86 is where things start bad

11 happening. Were you just talking about the summer

12 or...

A. Yes.

MR. DIMOND: That misstates his

testimony.

MR. ETTINGER: I'm sorry. Whatever.

17 BY MR. ETTINGER:

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?

A. Well, it -- this summer was a

22 stressful summer period.

Q. Would you be comfortable with

24 temperatures going up to 86 in March?

108

A. No, I think that brings in other

2 concerns besides precipitating a lot of avoidance in

3 high heat stress effects.

Q. If the temperature went up to 86 for a

5 few days in March, what effects would that have?

MR. DIMOND: Objection. Lack of

foundation and lack of expertise.

8 BY MR. ETTINGER:

Q. You may ignore his objection. Please

10 answer the question.

HEARING OFFICER: Excuse me,

Mr. Ettinger, you don't get to make that

decision.

MR. ETTINGER: I'm sorry.

HEARING OFFICER: I mean, we've been

asking him several questions, I would like

some explanation of why you think he lacks

the expertise.

MR. DIMOND: There's no evidence that

he's done any studies to support an opinion

on that. And, clearly, I don't think -- no

indication that the Agency asked him to give

expert testimony on that issue.

MS. WILLIAMS: On whether fish are

109

more stressed in summer or the winter or --

is that...

HEARING OFFICER: Mr. Dimond, you did

ask a question earlier, I just want to be

sure we have your name on the record.

I think I'm going to allow it,

with that caveat.

MR. ETTINGER: Could you read the

question back, please?

(WHEREUPON, the record was

read by the reporter.)

12 BY THE WITNESS:

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.

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.

MS. FRANZETTI: Can I return to my

line of questioning now? Okay.

10 BY MS. FRANZETTI:

Q. No. 4.

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?

Maybe back up, make sure

18 everybody's with us and...

A. I understand.

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?

A. Largely correct, yes.

111

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?

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.

There's really no reason to

11 believe that -- well, let me back up.

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.

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.

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.

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.

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.

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.

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?

A. No, it's the way that we did it with

10 the 1978 version of the methodology.

Q. Okay. All right.

A. And so the rationale --

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 --

A. Well --

Q. You changed your mind.

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

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 --

A. But for ecological reasons. Not just

6 because -- to maintain the physical --

Q. And is another way to say that because

8 we think it's good for the fish to do that?

A. Yes.

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?

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 --

Q. Right.

A. -- more than crowning endpoints.

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.

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?

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.

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.

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.

Q. And, I'm sorry, one more point.

116

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?

A. Well, yeah. It is what the normal

6 seasonal cycles are. So that's the rationale for

7 that.

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.

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.

Explain to us why you think, you

21 know, that's the right thing to use?

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.

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.

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.

And we do try to examine the data

14 for outliers. And you can pretty much spot an

15 erronous value.

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.

Q. Right.

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.

Q. Moving on to Question 7.

Have your suggestions for setting

6 nonsummer months thermal criteria been used by any

7 other state, and if so, where?

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.

Q. Moving on to Question 8.

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"?

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.

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?

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...

Q. So that is a relevant consideration --

A. It can be.

Q. -- in determining what constitutes

14 background?

A. It can be.

Q. Okay. You would not think it is

17 unreasonable to take into account the effluent

18 dominated nature of a water body?

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.

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?

A. I would not recommend using that.

Q. If it means the effluence from a

6 municipal waste water treatment plant, that you'll

7 allow; correct?

A. Perhaps. But that's a decision the

9 management has to make in consideration --

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.

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.

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

I'm just trying to understand how,

2 you know, you apply these concepts to an effluent

3 dominated water body.

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.

Q. All right. No. 9.

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?

A. I did just cover some of that in my --

Q. You did a little bit.

A. -- rationale, but I'll do it again.

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

Q. Okay.

A. Without setting, you know, no

3 exceedance numbers, you know, the same way we do in

4 the summer season.

Q. And gametogenesis?

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.

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.

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.

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...

Q. I understand.

A. Okay.

Q. Okay. Question 10.

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?

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.

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.

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.

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.

MS. WILLIAMS: Can I ask a follow-up

that I think is related to what she's getting

at?

23 BY MS. WILLIAMS:

Q. Can you tell us which life stages of

124

1 fish are generally most sensitive to temperature or

2 thermal stressors?

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.

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.

HEARING OFFICER: Mr. Ettinger, your

follow-up?

MR. ETTINGER: Yes.

19 BY MR. ETTINGER:

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"?

A. Yes.

125

Q. Would that be a concern with regard to

2 temperatures in the nonsummer months?

A. Yes, it is.

Q. And does cold shock affect adult fish?

A. Yes.

MR. ETTINGER: Thank you.

HEARING OFFICER: We need you to

explain what cold shock is, please,

Mr. Yoder.

THE WITNESS: Cold shock is when a

fish is -- actually, it's the reverse of the

high end lethality. There's also a low --

there's also a lower incipient lethal

temperature.

And fish have great difficulty

acclimating to rapidly dropping temperatures,

so the classic cases are where you have a

water body that's warmed up during the cold

months -- and does a couple things. One is,

it raises the activity of the organisms.

It also attracts a lot of fish.

They like to be warm.

And the danger is that, if that

would suddenly cease -- say it's a discharge

126

and it would suddenly cease, and they were

subjected to ambient temperatures that are

15, 20, 30 degrees lower, it's lethal.

HEARING OFFICER: Thank you.

5 BY MS. FRANZETTI:

Q. Moving on to No. 11.

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?

A. In the strictest sense, no, there

15 isn't.

Q. Moving on to Question 12.

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

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.

A. Yeah, I think the two are -- there's a

9 train of logic there that --

Q. Could you try and clarify what you

11 mean?

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.

But in the real world, it probably

18 isn't. But it depends on the magnitude and severity

19 of the exceedances.

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:

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?

A. Yeah, there's other parameters where

7 you can get excursions and not necessarily have

8 harm. Dissolved oxygen is another one.

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:

Q. How real is that?

A. How real is it, is the question that

18 some ask.

Q. How real is the affect of the

20 excursion or how real is --

A. Yes.

Q. Okay.

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.

Q. And you're saying not necessarily so.

A. I'm an advocate of -- that with a bio

6 assessment.

Q. Okay. Just again, and I'm just going

8 to combine (a)-(d).

Has that been done? Can we look

10 at studies that say what is that biological effect?

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.

Q. Well, that goes to your endpoints,

16 other than lethality. Is that what you're referring

17 now to, studies that --

A. Yes, they would not -- those studies

19 you could not derive a lethal endpoint.

Q. I understand.

HEARING OFFICER: If you're -- wait,

we have a follow-up.

Mr. Howe, you have a follow-up?

MR. HOWE: Peter Howe.

130

1 BY MR. HOWE:

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.

Couldn't you have predicted that,

7 based upon the knowledge of the literature and the

8 knowledge of that discharge temperature?

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.

MR. HOWE: Thank you.

HEARING OFFICER: All right. Let's

take an hour for lunch.

(WHEREUPON, a recess was had.)

HEARING OFFICER: I think we're ready

to go back on the record. And I think we're

on Page 18(l); is that correct?

MS. FRANZETTI: Yes. If I may

though --

HEARING OFFICER: I'm sorry, Ms.

Franzetti, before you do that: Mr. Dimond

131

spoke to me at the break and pointed out that

the Attachment A is missing several pages.

And I double checked to make sure it wasn't a

scanning error on our part, our copy also

does not have those pages.

Can we get those pages entered

into the record.

MS. WILLIAMS: Yes. And I am -- to be

sure I've got it correctly, we're talking

about Pages 2-98 through 2-102 of

Attachment A to the Agency statement of

reasons; does that sound right, Mr. Dimond?

MR. DIMOND: Yes.

HEARING OFFICER: I'm going to mark

those as Exhibit No. 18. If there's no

objection?

Seeing none, they're Exhibit 18.

(WHEREUPON, said document,

previously marked Exhibit No. 18,

for identification, was offered and

received in evidence.)

HEARING OFFICER: And like the other

exhibits we had earlier this week that -- I

don't even remember which ones they were that

132

I had scanned and linked, I'll have John scan

and link these, as well. And if there are

any other exhibits people want scanned and

linked, let me know, because that's not

standard operating procedure.

That's just something I've done,

because there has been a couple things that

we needed to get distributed the fastest and

that was the fastest way to do it. We're

happy to do it, just let us know what you'd

like scanned and linked.

MS. FRANZETTI: Madam Hearing Officer,

if I may digress from my prefiled questions

for a moment. It occurred to me last night

that in all of the questioning yesterday and

now this morning, I kept referring to Table 3

on Page 14 of Mr. Yoder's report, which has

been marked as Exhibit E.

In fact, one of the attachments to

the Agency's statement of reasons, and

specifically it's attachment No. HH, is a

letter from Mr. Yoder to Toby Frevert of the

Illinois EPA. The letter itself is undated,

but on the second page enclosure to the

133

letter it's dated July 11th, 2007. And this

is a revised version of Table 3.

So I think for the record, I would

like to ask him to identify it, explain what

changed from the values in Table 3 on Page 14

of his report. And then I would be offering

it into evidence as an exhibit to be marked.

HEARING OFFICER: Okay.

MS. FRANZETTI: Okay? So if I could

just do that right now.

11 BY MS. FRANZETTI:

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?

A. It's a correction to Table 3 of

17 Exhibit 15.

Q. And this is a letter you wrote to

19 Mr. Frevert of the Illinois EPA?

A. Yes.

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?

A. Yes.

134

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?

A. That's correct.

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?

A. That's correct.

MS. FRANZETTI: With that, I would

offer Attachment HH as the next exhibit in

this proceeding.

HEARING OFFICER: Ms. Franzetti, as I

indicated earlier, I don't generally mark

attachments to the statement of reasons as

exhibits, simply because they are already in

the record.

MS. FRANZETTI: That's right.

HEARING OFFICER: Is there a

particular --

135

MS. FRANZETTI: Well, it's just we

keep -- you know, we gave this an exhibit

number, and this is a correction to a page of

this. But it doesn't have to be. We've

identified it now in the record.

HEARING OFFICER: I think that's

sufficient.

MS. FRANZETTI: Okay.

HEARING OFFICER: Yeah. And just for

the record, that was an attachment to his

testimony not in the statement of reasons.

MS. FRANZETTI: Oh, sorry.

HEARING OFFICER: That's okay.

14 BY MS. FRANZETTI:

Q. Back to the prefiled questions,

16 beginning with (l).

The topic is UAA Waterway

18 Stressors and Constraints. Question 1.

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?

A. Through the RAS membership.

Q. I'm sorry, through the...

136

A. The RAS, the Representative Aquatic

2 Species Membership.

Q. Could you explain how the creation of

4 the RAS list accounts for the presence or absence of

5 adequate habitat?

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.

Q. I still don't think I am quite

12 following what you mean by that.

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?

A. That's correct.

Q. So do you first, in creating your RAS

19 list, evaluate the available habitat in a given

20 water body?

A. That's an option that you can employ.

Q. Okay. I understand theoretically it's

23 possible. Did you do that here before you finalized

24 your RAS list?

137

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 --

Q. Okay.

A. -- are the representative species

8 lists.

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?

A. Yes. That's correct.

Q. Moving on to Question 2. A similar

18 question, but different factors, not habitat.

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?

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.

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.

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.

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?

A. They could do that, yes.

Q. Is that what you were referring to in

23 the first part of your answer?

A. Yes.

139

Q. Okay. No. 3.

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.

I realize that question assumes

9 that you're familiar with the 305(b) report for the

10 Upper Dresden Pool and the CSSC?

A. I haven't looked at that.

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?

A. That's correct.

Q. Moving on to Question 4.

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?

A. That's something else I didn't look

22 at.

Q. So you don't know -- your answer is

24 you don't know?

140

A. No. Not without looking at more

2 details.

Q. Moving on to Question 5.

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?

MS. WILLIAMS: At this point -- go

ahead.

MR. ETTINGER: I just want to object.

Are you going to put these reports in, or

have they already been put in when I was

gone, or --

MS. FRANZETTI: Well, we'll tie it up.

We do --

MS. WILLIAMS: Well, I mean --

MS. FRANZETTI: We do intend to

present evidence of the existence of

endocrine disruptors in the discharges to

141

this water body.

MS. WILLIAMS: In the absence of that

though, or without citing to one, the

question then, I think, becomes are you

putting evidence into the record that's

not --

MS. FRANZETTI: I'll tell you what --

you know what, I can get around this and just

say let's make it hypothetical.

10 BY MS. FRANZETTI:

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?

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 --

Q. All right. Well, I'm sorry.

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?

A. No, I do.

Q. Oh, you do. All right, I'm sorry. I

4 misunderstood you.

A. But it would help me to know what

6 recent data you were referring to. What specific

7 studies?

Q. Well, what are you familiar with? It

9 doesn't matter what I'm referring to, so much as

10 what you know.

A. I'm familiar with some of the work

12 that has been done at the EPA laboratory in

13 Cincinnati.

Q. All right. And what is that --

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.

Q. So, based on that, what is your

20 opinion about --

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.

I have seen news releases and

143

1 things like from various researchers that say there

2 are effects.

MS. WILLIAMS: Can I clarify for the

record? When you refer to EPA, was that Ohio

EPA or U.S. --

6 BY THE WITNESS:

A. I'm sorry, U.S.EPA.

8 BY MS. FRANZETTI:

Q. And would fathead minnows you

10 mentioned in that one study fall within the category

11 of tolerant fish species?

A. No. It's highly tolerant.

Q. That's highly tolerant. And even they

14 crashed, is what you're saying?

A. Well, that's what that study reported.

Q. Okay.

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.

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.

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.

Q. So how do you reconcile that with the

7 candidate study you were mentioning?

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.

MR. ETTINGER: Can I just follow up on

that very briefly?

13 BY MR. ETTINGER:

Q. Which are the highly intolerant fish

15 species that you're seeing?

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.

I did a presentation two years ago

20 at the Ohio Natural History Conference, so...

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

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.

So that's my observation.

10 BY MS. FRANZETTI:

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.

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."

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?

A. That's part of it.

Q. All right. What else do you include

5 in that?

A. Well, the physical -- the physical

7 modifications will also have some impact on that as

8 well.

Q. And what do you include in the

10 physical modifications in the upper Illinois and

11 CAWS?

A. Well, the impoundment and the

13 channelization. Particularly in the -- what do we

14 call it, the CAWS system or the CSSC?

Q. Well --

A. The whole collage of everything that's

17 happening upstream, basically.

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

A. Well, I think there's two aspects.

2 One is just the -- sort of the pure scientific facts

3 of the situation.

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.

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.

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.

Q. All right. Okay. Let's see, give me

22 just a moment.

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?

A. Well, we tried to, in Table 5.

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?

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.

Q. Uh-huh.

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.

Q. And the Holly and Bradley monitoring

23 study, I see it referenced in Footnote 10, I

24 believe, on Table 5 --

149

A. Yes.

Q. -- page 18 of your report?

Can you -- well, first let me

4 break this down.

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?

A. Yes.

Q. Okay. Why did you conclude that that

11 was an appropriate location for purposes of

12 determining a representative background temperature?

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.

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 --

A. Yes.

Q. -- isn't there a geographic component

150

1 to this, too?

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 --

Q. Okay.

A. -- for in the CAWS system.

Q. And, as you said, we can find those in

13 Appendix 2 to your report.

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.

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?

A. Yes.

Q. Who was that?

A. Ed Hammer helped me with that.

151

Q. And Mr. Hammer is with U.S.EPA Region

2 5, correct?

A. Yes.

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?

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 --

Q. Right.

A. -- inclusion for this particular

15 option.

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?

A. Well, not necessarily.

Q. Well, then why are you relying on

22 Mr. Hammer?

A. Well, he was -- he's our technical

24 contact for producing this product.

152

He's the --

Q. Excuse me.

Does the fact that he's the

4 technical contact mean that you have to defer to his

5 opinion?

A. I don't have to defer to it, but I

7 value his opinion.

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?

A. Yeah. And what that means is, this is

14 a grant product, that he is the technical overseer

15 of that grant product.

So, of course, he's going to have

17 input, and I'm going to listen to his input.

Q. All right.

A. I'm going to consider it.

Q. But you're telling me that if your

21 personal knowledge differed from his, then you would

22 follow your own personal knowledge?

A. Well, I think we would come to an

24 agreement.

153

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?

A. Yes.

Q. Moving on to (m), Acclimation.

MR. ETTINGER: Can I just act a little

bit about the background temperature again?

9 BY MR. ETTINGER:

Q. Was there any thought given to

11 breaking down the system and using different

12 background temperatures for different segments?

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.

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:

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

Moving on to 1(b).

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?

A. Yes.

Q. Moving on to (c).

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?

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

Q. Okay. Moving on to D.

Was the upper lethal temperature

3 for white sucker based on acclimation temperatures

4 of between 25 and 30 degrees Celsius?

A. I'll have to look that up.

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.

Q. And you are referring to which --

12 which appendix to Exhibit 15?

A. Appendix Table Z(1) in Exhibit 16.

Q. Sixteen, I'm sorry.

Mr. Yoder, are we looking back at

16 the same page that we were looking at this morning?

A. Yes.

Q. Okay. With respect to the McCormick

19 1977 study and the Bruns and Jones study?

A. Actually, it's the Bruns and Jones

21 study.

Q. Okay.

A. It talks about the acclimation of 26

24 degrees.

156

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?

A. I think so.

Q. Oh. All right.

A. That's what I have to go back and see

7 if I could find out.

Q. I'm just trying to clarify. That's

9 different from what I thought you said this morning.

I thought you said it was a

11 combination of both the McCormick study --

A. Well, I don't rule it out. But

13 it's...

Q. All right.

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.

Q. Oh, okay.

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.

And that was only a 12-hour test,

23 so...

Q. Okay. Well, so you're going to --

157

1 you've agreed, you're going to try and find your

2 notes.

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?

A. Yes.

Q. Thank you.

Moving on to Question (e). And

10 I'm going to jump to the second part of that.

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?

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.

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?

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.

Q. Was that where you didn't have a

9 literature value for a study that was done between

10 25 and 30 degrees?

A. That's correct.

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?

A. That's what I did, yes.

Q. Okay. Moving on to (f).

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?

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.

And the data compilation, the

5 lethal value I have is an acclimation temperature of

6 22.7 degrees.

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.

Are there any others that did

13 among the inputs you used? Do you know?

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.

Q. I won't ask you to do that right now.

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?

A. The only one I'm certain of is stone

24 cat.

160

Q. You don't know as to the other ones?

A. Not without going back and looking at

3 the cited studies.

Q. Moving on to thermal avoidance, N,

5 Question 1.

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?

MS. WILLIAMS: We've answered this

already, haven't we? I will object. It's

been asked.

13 BY MS. FRANZETTI:

Q. Some of these need a little foundation

15 in order to move forward.

Yes or no?

A. No. It includes some field data.

Q. Oh, that's right, that's your...

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?

A. No, I don't agree.

Q. Why not?

A. Some tests are set up so fish do have

161

1 the ability to move, to seek other temperatures.

2 Some are not.

Q. Right.

Would you say the majority are

5 not?

A. I'm not certain of that.

Q. Well --

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.

So, yes, I would agree with that.

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?

A. For the lethal endpoint, yes.

Q. Yes, that's what we're talking about.

MR. ETTINGER: That's my confusion. I

thought we were talking avoidance

temperatures now.

THE WITNESS: Yes.

MR. ETTINGER: Isn't this the area on

thermal avoidance?

162

MS. FRANZETTI: Yeah. And the point

being, that in most of these tests, the fish

can't exhibit their natural behavior of

avoidance.

5 BY MR. ETTINGER:

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?

A. That's correct.

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.

A. Yes, that's inherently part of that

14 design.

MR. ETTINGER: That's why I was

confused.

MS. FRANZETTI: Well, moving onto the

next question, maybe we can help your

confusion.

MR. ETTINGER: Good.

21 BY MS. FRANZETTI:

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

A. Yes, provided they have somewhere to

2 go.

Q. Moving on to Question 4.

Is it correct that the derivation

5 process used here does not account for this thermal

6 avoidance behavior in fish?

A. No.

Q. What is not true about that?

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.

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.

MR. ETTINGER: I'm sorry, Ms.

Franzetti, you didn't solve my problem at

all.

20 BY MR. ETTINGER:

Q. If you were going to design a test to

22 measure avoidance, are such tests done?

A. Yes.

Q. I assume if you were going to -- I

164

1 don't want to assume.

Would you design such a test so

3 that the fish could avoid temperatures and choose

4 what temperature they wanted to be in?

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.

Q. So on these avoidance numbers that are

11 in Table 3 of what I believe has been marked as

12 Exhibit 19.

HEARING OFFICER: No HH.

MS. FRANZETTI: HH.

MR. ETTINGER: I'm sorry, HH. We

didn't mark it.

17 BY MR. ETTINGER:

Q. HH. Are some of these avoidance

19 temperatures derived from laboratory tests in which

20 the fish were allowed to move?

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.

Q. Yes, how --

A. So if you look at that, you can see

5 that's where the upper avoidance input was crossed.

Q. And was that number derived, at least

7 in part, from laboratory studies in which fish could

8 move?

A. Laboratory and field studies, it had

10 to be an avoidance endpoint.

Q. And the fish could move in deriving

12 those numbers?

A. Yes.

Q. Thank you.

15 BY MS. DEXTER:

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?

A. I mean, that's inherently not an

20 avoidance setting.

MS. DEXTER: Right. Thanks.

MR. ETTINGER: Now we understand.

23 BY MS. FRANZETTI:

Q. And is thermal avoidance by a fish a

166

1 generally accepted phenomenon, Mr. Yoder?

A. Yes. It's a defined term.

Q. Right.

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?

A. Well, it's not how we produced the

13 options, but it's certainly available to the user.

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?

A. No, but we -- we feel that the

18 long-term survival is sufficient surrogate for that.

Q. Okay. Moving on to (o), Absence of

20 Early Life Stages, and in particular the CAWS

21 aquatic life view sea waters.

MS. WILLIAMS: I think we are going to

have to either set this aside for Mr. Twait

or rephrase it in a way that's within his --

167

MS. FRANZETTI: And I think, quite

frankly, to a large extent, it's already been

answered by Mr. Yoder. I'll move on.

4 BY MS. FRANZETTI:

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.

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?

A. Yes. If I can be permitted to

16 explain?

Q. Sure.

A. Okay. We, substantively, changed that

19 endpoint based on feedback that we received from the

20 subcommittee.

Q. Okay. Subsequently changed those --

22 those are no longer the thermal endpoint values for

23 log perch, that you -- that the --

A. Yeah, that's current --

168

Q. -- that the MBI/CABB --

A. We have a different endpoint now for

3 log perch.

Q. And you said you changed that because

5 of input from -- I'm sorry, where?

A. The ORSANCO committee that we were

7 reporting to for that project.

Q. What was the nature -- explain what

9 the input was that caused you to change those

10 values?

A. The study it was based on was

12 critiqued and suggested that it wasn't a valid

13 study.

Q. The study that you had included in

15 your data --

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.

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.

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."

So what was wrong?

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.

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.

Q. Which -- I'm sorry, which study? The

15 one the criticisms were based on?

A. Yes.

Q. I'm sorry, the one you used?

A. Yes.

Q. Originally, to get these numbers, 75.2

20 and 72.8; correct?

A. Yes.

Q. All right. You went back and reread

23 it?

A. Yes.

170

Q. And what did you conclude after

2 rereading it?

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?

Q. Well, Mr. Yoder, let me --

A. It's approximately the -- I believe,

9 the 78.8 degree value.

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?

A. No, but that's who I was producing the

16 product for.

Q. Okay. So you do agree your original

18 numbers should be changed?

MS. WILLIAMS: I'm losing track of

what's original and what's subsequent.

MS. FRANZETTI: The original are what

are in my question, 75.2, 78.8.

MS. WILLIAMS: Is that your

understanding of original?

171

THE WITNESS: Yes.

2 BY MS. FRANZETTI:

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?

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.

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.

Q. Okay.

A. That's really all I have to go on.

Q. Okay. I understand.

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

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.

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"?

MS. WILLIAMS: Can I object?

11 BY THE WITNESS:

A. No, I did not write --

13 BY MS. FRANZETTI:

Q. You did not write?

A. No.

Q. Moving on to Question 2.

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?

A. Yes.

Q. And isn't it true that log perch are

23 very common in the Ohio River during the summer?

MS. WILLIAMS: I'd like object to this

173

point -- to this line of questioning. I know

that we're giving a lot of leeway here, but I

don't believe log perch is the used Upper

Dresden Island report at all. So I don't

understand how -- whether good or bad or

relevant or will help the Board at all in the

decision it needs to make.

MS. FRANZETTI: Madam Hearing Officer,

I think this goes directly to the degree of

reliability of the conclusions that Mr. Yoder

reached what he's referring to as "options"

in his report. And it shows how, from the

values that he derives using his ranking

approach, have, in fact, when been

scrutinized in other settings like this one

looking at what should be appropriate thermal

standards, there have been errors found.

And in fact, those -- when found,

those values have been changed. And, in

part, I'm trying to show that it's because

they don't reflect reality.

And, in fact, in the real river

system, you have these fish and you have them

in good numbers at significantly higher

174

temperatures. I think that's a very relevant

point for this board to consider.

HEARING OFFICER: I would agree.

Would you like to respond?

MS. WILLIAMS: Well, I would just like

to respond that I think we well established

yesterday that if any user of his model wants

to change any endpoint or species that's in

there, that that can be done. So I'm not

sure there's anything to --

MS. FRANZETTI: Ms. Williams, are you

telling us that in the proposed thermal

standards before this board, I won't find a

single number that comes straight from his

Table 3?

MS. WILLIAMS: No, I'm saying that --

MS. FRANZETTI: Exactly --

MS. WILLIAMS: -- log perch is not in

Table 3.

MS. FRANZETTI: I know log perch

isn't.

MS. WILLIAMS: If there's some other

information you want to change, we can

change -- I mean, you can do that.

175

HEARING OFFICER: I'm sorry,

Ms. Williams, I have to disagree.

MS. WILLIAMS: Okay.

HEARING OFFICER: I think that these

questions are specifically about the ORSANCO

project. And, at least my understanding is,

that's the underlying database that was used

to create Exhibit 15.

And I think that, certainly,

everyone has -- should have the opportunity

to ask him about the data that he used to get

to 15 or data that was placed into that. So

I'm going to overrule your objection and

instruct the witness to answer the question.

MS. WILLIAMS: Can you repeat it for

him?

HEARING OFFICER: Yeah, would you read

it back?

(WHEREUPON, the record was

read by the reporter.)

21 BY THE WITNESS:

A. To my knowledge, that's correct.

23 BY MS. FRANZETTI:

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?

A. At this point, I don't agree with

6 that.

Q. All right. What was it based on?

A. I went back and I reread the study.

9 And based on what I read, that is a lethal endpoint.

Q. Moving on to -- excuse me for a

11 moment.

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?

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.

Q. So the author admitted to poor

22 temperature control during the study but didn't

23 think it affected the endpoint?

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.

Q. The fact that he had problems with the

5 apparatus wasn't included?

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.

Q. Okay. Moving on to No. 4.

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?

A. I haven't been presented any data that

17 proves that.

MR. ETTINGER: May I just follow-up

that briefly?

20 BY MR. ETTINGER:

Q. When you're talking about daily

22 maximum, is that the average over a day, the maximum

23 daily average?

A. I think we had this question before.

178

MS. FRANZETTI: I thought we covered

it this morning.

3 BY MR. ETTINGER:

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?

A. I'd have to look at the study, how

10 they reported that.

Q. Okay.

A. I'm not sure.

Q. If it was an average, that might go

14 over that temperature for some part of the day?

A. It's possible, if that's what

16 happened.

17 BY MS. FRANZETTI:

Q. Mr. Yoder, I want to jump to 5, I

19 think you've answered the first part of that

20 question.

There was a revised recommendation

22 made to ORSANCO; wasn't there?

A. (No audible response.)

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.

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?

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.

Q. All right. You didn't see any actual

14 stream ambient data?

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.

Q. Can we maybe cut to the chase? What

20 did ORSANCO, ultimately, do? What did it,

21 ultimately, rely on, if you know?

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.

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.

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.

And that is what I -- it's my

16 understanding that that is what ORSANCO eventually

17 relied on.

Q. Moving on to --

MS. WILLIAMS: Can we just clarify

whether log perch was included on this second

RAS list you're referring to, or do you know?

THE WITNESS: It's in Exhibit 16.

23 BY THE WITNESS:

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:

Q. Mr. Yoder, I'm going to jump to

8 Question 7.

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.

That's your term. What did you

14 mean by that?

A. That I did not endeavor to reanalyze

16 anyone's data or conclusions that they reached in

17 their own publications.

Q. I think we've covered 8.

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 --

MR. SULSKI: Fifty-one.

182

MS. FRANZETTI: Fifty-one?

MR. SULSKI: Oh, that's the figure,

I'm sorry.

THE WITNESS: Page 45.

5 BY MS. FRANZETTI:

Q. Page?

A. Forty-five.

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?

A. Yes.

Q. And some have numbers and some don't.

14 Can you explain what that means?

A. The original sources are the species

16 that have data for the 1978 database done for Ohio

17 EPA.

Q. And then, going over two columns,

19 there's a column called New Literature.

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 --

Q. Okay. You're the boss. Explain that

24 column.

183

What does that column mean?

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.

Q. Oh. I think maybe you're right, maybe

8 I should have asked you this question three hours

9 ago.

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?

A. Yes. And it was found after the

15 1978 -- it wasn't available.

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?

A. It doesn't mean it wasn't necessarily

21 done --

Q. All right.

A. -- but it didn't include the

24 literature --

184

Q. You didn't find it, you didn't know

2 about it. It didn't get into the database?

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.

Q. Okay. So don't this table -- and

9 isn't this where answered -- or strike that.

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?

This table answers that question;

16 correct?

A. It should, yes.

Q. If I look for each of those species, I

19 can determine, in your entire database, how many

20 studies are there?

A. Yes.

Q. Thank you.

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 --

A. Yes.

Q. -- added to the original database?

A. Yes.

HEARING OFFICER: It's 200, I believe.

MS. FRANZETTI: Two hundred, thank

you.

8 BY MS. FRANZETTI:

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.

I'm going to jump to the Ohio

13 Muskegon River in Q.

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?

A. Yes. The same methodology.

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?

MS. WILLIAMS: He can't answer this.

I don't think this is a question for Chris;

do you?

8 BY THE WITNESS:

A. I'm not comfortable answering it. No,

10 I don't know enough about the proposal.

11 BY MS. FRANZETTI:

Q. Oh, what the Illinois EPA has proposed

13 here?

MS. WILLIAMS: If you just want to ask

him -- that's fine.

16 BY MS. FRANZETTI:

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?

HEARING OFFICER: Table 3 in

attachment HH; correct? That's the one

you're looking at?

187

MS. FRANZETTI: Yes.

2 BY MS. FRANZETTI:

Q. Aren't those numbers similar to your

4 modified use?

A. Yeah, they happen to be within a tenth

6 or two.

Q. And I thought we had established

8 earlier that -- well, let me ask it in the

9 hypothetical.

I'm going to change that again.

11 Let's just go to 2(a).

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?

A. Yes.

Q. All right. And describe the

20 impoundment characteristics of the Muskegon versus

21 the Upper Dresden Pool.

A. Well, it has a series of navigational

23 dams and locks.

Q. All right.

188

A. It's -- however, not subject to --

2 it's restricted to pleasure boats. There's no barge

3 traffic.

Q. Oh, there's no barge traffic on the

5 Muskegon?

A. Right. But the --

Q. Is it a channelized -- excuse me --

MR. ETTINGER: Could you let him

answer his question?

10 BY MS. FRANZETTI:

Q. Go ahead, Mr. Yoder, with your answer.

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.

There's no maintenance, except in

17 the vicinity of the locks.

Q. So --

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.

Q. Okay. But there's no barge traffic

24 and there is no maintenance dredging done on the

189

1 Muskegon?

A. Not out in the main channel, no.

Q. Is it channelized in the way the Upper

4 Dresden Pool is?

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.

Q. Oh, that's right. You only include

10 bank to bank in channelization.

A. Right.

Q. Isn't it true that the upper Muskegon

13 River is not impounded?

A. It's free flowing, yes.

Q. Yes.

And with respect to availability

17 of habitat, do you know enough to compare the

18 Muskegon River to the Upper Dresden Pool?

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.

Q. And the unimpounded portion, same

24 thing, you think they're the same thing?

190

A. Of the Muskegon.

Q. Versus the Upper Dresden?

A. No, I would say not.

MS. FRANZETTI: I think we're done.

MS. WILLIAMS: Can I ask some

follow-up on this particular point?

HEARING OFFICER: Sure.

8 BY MS. WILLIAMS:

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?

A. The standard does not, no.

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.

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.

MS. FRANZETTI: Madam Hearing Officer,

while counsel is conferring, I don't have any

more questions on exhibits, his report, his

191

prefiled testimony. I do have questions on

Attachment S, the MBI/CABB report that, I

think it was on Monday, we established

Mr. Yoder is also knowledgeable on and we

should be directing questions to him.

But I thought it might make sense

to give people a chance to do follow-up on

Exhibits 15 and 16 topics, and I'll come back

on Attachment S tomorrow.

HEARING OFFICER: Okay. I would note,

we're going to take a short break. But Flint

Hills will be next in the lineup of

receiving. But I didn't really see any

directly for Mr. Yoder.

MR. HILLS: No, Your Honor -- Flint

Hills. None of our prefiled questions are

directed toward Mr. Yoder. Obviously, we

reserve our right to have follow-up

questions.

HEARING OFFICER: Well, then that

takes us to Citgo, and I don't see Mr. Fort.

MR. ETTINGER: He's abandoned the

fort.

HEARING OFFICER. Which then -- the

192

list then would go to Corn Products, but

again, I didn't see any directly for

Mr. Yoder.

MR. HILLS: Same situation.

HEARING OFFICER: Corn products?

CICI, any specific.

Also the District, I really didn't

see that you had any for Mr. Yoder.

UNIDENTIFIED SPEAKER: I think we had

one, although we may have had follow-up

questions.

HEARING OFFICER: All right. Then we

will let you ask your one after break.

And then we will go to you,

Mr. Dimond.

And, please, take the opportunity

to look at your questions. I think he's

addressed a lot, I believe, of Citgo, and

then I think he's addressed at least some of

yours, too, Mr. Dimond.

(WHEREUPON, a recess was had.)

HEARING OFFICER: All right. We are

back on the record. And I would note that

some off-the-record discussions have

193

occurred, and the District's question has

been answered, that they had directed to

Mr. Yoder.

So we're going to start with, I

believe, Stephen and the Citgo.

MS. WILLIAMS: Madam Hearing Officer,

would you like to have the list that you

requested before lunch?

HEARING OFFICER: Oh, I'm sorry. Yes,

you did say that. And this is a list that

was in response to some questions by

Ms. Franzetti.

It is the relative abundance of

all fish tax collected electro fishing from

Lower Dresden Pool between the I-55 bridge

and Dresden Lock and Dam for the period of

1994 to 2002. If there is no objection, we

will admit this as Exhibit 19.

Seeing none, it's Exhibit 19.

(WHEREUPON, said document, was

marked for identification as

Exhibit 19, was offered and

received in evidence.)

HEARING OFFICER: Mr. Yoder, who

194

collected this data, do you know?

MR. DIMOND: I was going to ask some

foundational questions.

HEARING OFFICER: Okay.

MR. MELAS: Good.

HEARING OFFICER: Let's go ahead with

Mr. Dimond.

8 BY MR. DIMOND:

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?

A. Yes.

Q. Do you know what the source of the

17 information on fish species that's recorded in the

18 document is?

A. I believe it is dated, it was

20 collected for Midwest Generation during that period.

Q. What's the basis of that belief?

A. Well, I recall that from participating

23 in the biological committee for the UAA process.

Q. Was this particular compilation

195

1 prepared by U.S.EPA or do you know?

A. I don't know. It could have well been

3 prepared by Ham & Associates.

Q. Right. Regarding your Exhibit 15, in

5 Appendix B starting at Page 73.

HEARING OFFICER: Excuse me,

Mr. Dimond, if this is one of your prefiled

questions, it would help the court reporter

to know which one it is. And if not, fine.

MR. DIMOND: I've got a few follow-up

questions, I'll let her know when I start in

on my prefiled.

HEARING OFFICER: All right. Thank

you.

15 BY MR. DIMOND:

Q. Mr. Yoder, this is the appendix that

17 has the tables with the monthly and bimonthly

18 ambient temperature statistics; is that correct?

A. Yes.

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.

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.

Q. Okay. Now I see where it is.

A. There are seven locations. I think I

5 said six, I miscounted.

Q. Okay. I couldn't -- I barely could

7 read it through the shading. Okay.

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."

What does that statement mean?

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.

Q. I'm sorry, you said they identified an

21 endpoint?

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.

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.

Q. Okay. I'm going to start in with my

8 prefiled Question No. 1, which I will modify

9 slightly.

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?

A. That's correct.

Q. Is there anywhere in the appendices to

19 Exhibit 16 where you indicate how many organisms

20 were tested in a particular study?

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.

Q. Okay. I'm going to pass on my second

3 question.

HEARING OFFICER: Excuse me,

Mr. Dimond, may I note, just for the record,

you're going to say pass because it's already

been answered?

MR. DIMOND: Yes.

9 BY MR. DIMOND:

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.

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"?

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.

Q. Okay.

199

Similarly, I think all the

2 subparts of No. 4 have been answered. I do have one

3 minor question on that.

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?

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.

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?

A. What table did you refer to? I'm

18 sorry, what number?

Q. In Table Z(3). Is the adjustment

20 factor reflected in the numbers in Table Z(3)?

A. I've got my pages scrambled here.

The upper lethal column, that's

23 where the safety factor would have been applied.

Q. So Table Z(3) does have the two-degree

200

1 safety factor in it whenever you've applied it?

A. Yes.

Q. Question No. 5 was, do you know

4 approximately what percentage of the original 370

5 literature sources relied on the CTM method?

A. No, not off the top of my head. I

7 don't know an exact number.

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?

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 --

Q. Yes.

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.

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?

A. I didn't determine that.

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?

A. Yes.

Q. I think No. 12 in my list has been

10 answered.

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.

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?

A. No.

MS. WILLIAMS: Can I follow up here

202

for a second?

2 BY MR. WILLIAMS:

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?

A. I think so, yes.

That -- I mean, that opportunity

11 was certainly there. That could have -- that could

12 have been done.

13 BY MR. DIMOND:

Q. Wouldn't it normally be preferable to

15 have that input before you run the model?

A. It's not required to have that input

17 to run the model.

Q. I understand it's not required, but

19 wouldn't it be preferable?

A. It depends on the purpose and use. I

21 would agree with you and in certain situations, yes.

Q. I think my Item 14 has been answered.

MR. DIMOND: So that's all I have.

HEARING OFFICER: Thank you,

203

Mr. Dimond. We'll go to Citgo's prefiled

questions.

MR. FORT: Yes. Thank you, Madam

Hearing Officer.

5 BY MR. FORT:

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.

Have you ever been at the

11 refinery?

A. No.

Q. From my brief description, do you have

14 a mental image of about where it is?

A. I'm not sure.

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?

A. No.

Q. You have heard of this invasive

22 barrier previously?

A. The electric barrier?

Q. Yes.

204

A. Yes.

Q. What's your understanding of it?

MS. WILLIAMS: Can you tell me what

number in the prefiled questions this is?

I'm sorry if I missed it.

MR. FORT: It's not in the prefiled

questions.

MS. WILLIAMS: It's follow-up, okay.

MR. FORT: It's more follow up.

MS. WILLIAMS: That's fine.

MR. FORT: General knowledge.

MS. WILLIAMS: Okay. Thank you.

13 BY MR. FORT:

Q. Do you have any understanding of what

15 this electric invasive species barrier is or what

16 it's supposed to do?

A. Just in a very general sense.

Q. You don't have an opinion of

19 effectiveness or what the issues here might have to

20 do with that particular device?

A. I don't have any basis to judge its

22 effectiveness.

Q. Okay.

MR. FORT: Going to the prefiled

205

questions, Counsel, I think Nos. 18 and 19

have been answered.

3 BY MR. FORT:

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?

A. Well, I have multiple years of work

9 experience in that area.

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?

A. Do you mean like in terms of the NPD

15 excrements?

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.

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.

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

A. I see. In terms of like pollution

2 controls?

Q. Yes.

A. Yes, I understand now.

Q. Okay.

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.

Q. Okay.

A. There's, I believe, some intermediate

12 options, like helper cooling towers, that type of

13 device.

Q. Have you ever been involved -- sorry,

15 go ahead.

A. I'm just saying that type of device.

Q. Have you ever been involved in

18 designing or specifying the characteristics of such

19 devises?

A. I have been involved in developing

21 thermal load management plans.

Q. And what's a thermal load management

23 plan, in your understanding?

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.

Q. Is this more of a measurement in

4 management decision tool, or is this the hardware

5 that helps that happen?

A. This is a management measurement meant

7 tool, the operational implementation is by adjusting

8 the operation of the facility.

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?

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.

MS. WILLIAMS: How about municipal

facilities, Mr. Yoder?

22 BY THE WITNESS:

A. No municipal waste water treatment

24 plants, if you're referring to that.

208

1 BY MR. FORT:

Q. Okay.

A. I've heard of that in other states,

4 but I've never dealt with it.

Q. So you recall something vaguely about

6 a refinery; correct?

A. Oh, yes. I know which refinery it

8 was.

Q. What?

A. The BP refinery in Toledo, Ohio.

Q. Okay. And what do you recall about

12 those issues?

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.

Q. Do you know if that refinery was

17 treating their waste water for nitrogen?

A. No.

Q. Okay. Are you familiar with the means

20 of treating waste water for nitrogen?

A. No.

Q. You're not aware that you need to heat

23 the water in order to provide nitrification

24 stability for --

209

MS. WILLIAMS: Objection.

2 BY MR. FORT:

Q. -- make the -- treat the ammonia,

4 particularly during the winter?

MS. WILLIAMS: I just want to say,

Mr. Yoder is not an engineer. We put his

resume, laid out yesterday, what he's here to

testify for. I mean, I don't have a problem.

If he wants to answer, he can answer. But it

just seems like we're going down a road where

we haven't tried to use him for this purpose.

Nobody has -- I'm just not sure the

relevance, I guess, of asking this witness

this line of questioning.

HEARING OFFICER: He can answer if he

can.

MS. WILLIAMS: Okay.

18 BY THE WITNESS:

A. I do understand it's difficult to

20 treat ammonia during winter.

21 BY MR. FORT:

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

A. Yes.

Q. Going on on the prefiled questions, I

3 think No. 21 and 22 of mine have been taken care of.

No. 23, let me refine that a

5 little bit.

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?

A. No. The data we collected in 2005 was

10 not used.

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?

A. Yes. It was a comparability study.

Q. It was really a measurement of how you

16 collect samples, as opposed to what the samples were

17 themselves?

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.

Q. Do we know what's the availability of

22 that data? I thought you had asked for a copy of

23 that?

MS. WILLIAMS: I think we had said we

211

would look for it, but we didn't have it.

MR. FORT: Okay.

MS. WILLIAMS: As far as we knew and

U.S.EPA could get it for us.

MR. FORT: Thank you.

6 BY MR. FORT:

Q. I think No. 24 has been taken care of.

No. 25, let me modify this a

9 little bit.

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?

A. Yes. It's patterned ORSANCO Document

15 Exhibit 16, references a study by Bush, et al., as

16 the basis of the methodology.

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?

A. Yes. This is a paper by Bush and

22 others, 1974, published in Environmental Science and

23 Technology.

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?

A. No.

Q. Are you currently collecting data to

6 demonstrate the accuracy of that approach?

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.

Q. Okay. Thank you.

No. 27.

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?

A. They're cited in 16.

Q. Got it. Thank you.

And with respect to that

19 literature, is there a methodology for weighting one

20 as being more authoritative than the other?

MS. WILLIAMS: I think we went over

this in a lot of detail, both yesterday and

probably today, too. How he prioritizes the

different studies, how he chooses the

213

averages, I mean all of that.

MR. FORT: If the hearing officer

thinks it's asked and answered, I'm perfectly

fine to move on, but...

HEARING OFFICER: Well, we discussed

how Mr. Yoder did it, was that your question,

how Mr. Yoder did --

MR. FORT: Yes, it was his --

HEARING OFFICER: Okay. Then, yes, we

have.

MR. FORT: Okay.

HEARING OFFICER: I was thinking of it

as a more broad question.

Thank you, Ms. Williams.

15 BY MR. FORT:

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?

A. Well, I won't rule out that somebody

20 else would come up with a different way of doing it.

Q. There really isn't a set protocol or

22 guidelines on how to choose amongst data that aren't

23 identical?

A. I can't point to anything --

214

Q. Okay.

A. -- that sets a methodology.

Q. Okay. Moving on to No. 30, I think 28

4 and 29 have been dealt with.

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?

A. No.

Q. I think 31, I'm going to remove. He's

11 not a standards expert.

I think 32 we talked about.

I guess 33 really gets me more

14 back into your report, Mr. Yoder. And I want to

15 understand Table 1.

A. In 15?

Q. In Exhibit 15, yes, sir.

A. Table 1, okay.

MS. WILLIAMS: I'm sorry, Jeff, I

think I missed where we're at now.

MR. FORT: Sorry?

MS. WILLIAMS: Is 33 where we're at

now?

HEARING OFFICER: Yes.

215

MR. FORT: Well, it's 33, but I think,

in order to do 33, I've got to ask some more

precise questions than what I had in the

prefiled.

5 BY MR. FORT:

Q. Do you have Table 1 there?

A. Yes.

Q. And maybe you should have Exhibit 19

9 at the ready as well.

A. Table 19.

Q. So if you'll bear with me, let me make

12 sure I'm understanding Table 1 correctly.

Under the category or secondary

14 contact you have eight individual species

15 identified; correct?

A. Yes.

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?

Exhibit 19 was the basis then to

22 come up with the listing of what was available in

23 different categories?

A. There -- according to -- under the

216

1 membership rationale column.

Q. Yes.

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 --

Q. Okay.

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.

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.

A. Right. But -- so its membership

19 rationale is historical.

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?

A. Not a specific explanation, no.

Q. Okay. Do you know if the fathead

217

1 minnow has ever been found in the Chicago Sanitary

2 and Ship Canal?

A. I don't know that for sure.

Can I clarify one point though?

Q. Absolutely.

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.

Q. So you mean the fathead minnow has

12 relevance to things for which there is no data on

13 thermal effects?

A. It can be ecologically represented in

15 something like a secondary contact use, at least in

16 the way we were thinking about.

Q. Okay.

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.

Q. What species would the fathead minnow

22 be the proxy for?

A. It's more of the tolerance of what you

24 would expect a secondary contact habitat to --

218

Q. Okay.

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.

Q. So you're expecting it to be there,

8 even though it may not be something that gets found?

A. Right.

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.

So that would be another one that

15 you assume to be there but wasn't found?

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.

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?

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.

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?

A. Yes.

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?

A. I'd have to look at the data to

15 determine that.

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?

A. Yes.

Q. Okay. Let me move on then to your

23 Table 3 of Exhibit 15.

MS. DIERS: Which is -- now we're

220

referring to HH. Because Table 3 was

corrected earlier, and I don't know if

Mr. Fort, if you were here when --

HEARING OFFICER: I was actually going

to ask Mr. Fort if he was going to look at

Table 3 in Exhibit 15 or HH.

MR. FORT: We have a correction to

Table 3, Exhibit 15?

MS. WILLIAMS: It was filed with the

proposal, the corrections to Table 3, and

referred to in the testimony and all of that.

12 BY MR. FORT:

Q. Are there any changes in Table HH to

14 the secondary contact list?

A. Yes, that's what changed.

HEARING OFFICER: Do you need a copy

of that?

MR. FORT: Please.

HEARING OFFICER: Here's my copy.

MR. TWAIT: That change was

represented in our proposal though.

HEARING OFFICER: Yes. This was

attached to HH, to the proposal itself.

MR. FORT: I see the numbers have

221

changed, the questions don't.

2 BY MR. FORT:

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?

A. Correct.

Q. Do you know of those eight which is

9 the most sensitive to elevated temperatures?

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.

Q. Okay.

HEARING OFFICER: I'm sorry, I lost

part of that.

17 BY THE WITNESS:

A. Bluntnose minnow.

19 BY MR. FORT:

Q. And what's -- the second most

21 sensitive then is...

A. Golden shiner.

Q. The golden shiner. Okay. Thank you.

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?

MS. DIERS: Just to correct, for the

record, we're at Attachment HH, Table 3.

Sorry.

MR. FORT: Okay.

10 BY MR. FORT:

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?

A. No.

Q. No?

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.

Q. Okay.

A. That's used as the average.

Q. Thank you.

So survival for long term includes

223

1 a two degree Centigrade margin of safety to

2 calculate your 86.7 Farenheit; correct?

A. Yes.

Q. Okay.

MR. TWAIT: Just for a clarification,

you said 86.7 degrees?

7 BY MR. FORT:

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?

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.

Q. Are these species the most sensitive

22 to elevated temperature also the basis for the

23 period average calculations, or is it different?

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.

And I think I explained before

5 that we're using it here as a surrogate for

6 long-term habitation avoidance.

Q. And that is also -- but that's not

8 true for the cold weather months; correct?

A. No, the nonsummer season is strictly

10 based on maintaining the background seasonal

11 temperature site.

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?

The bluntnose minnow, did you know

16 what age of fish that represented?

MS. WILLIAMS: And I'll let him answer

the question he wants to, but -- if he knows.

But if he doesn't know, we've already

indicated earlier that we'll be following up

with the underlying studies for bluntnose

minnow as well as white sucker and entering

those into the record. Because those are the

species that drive --

225

MR. FORT: Okay.

MS. WILLIAMS: I don't think you were

here for that part, that's why I wanted to --

but if he knows the answer, I don't mind him

answering.

6 BY THE WITNESS:

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.

Q. Did you weigh those differently,

15 whether or not they were juvenile or adult?

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.

Q. Juveniles are less sensitive to

22 temperature than adults?

A. Yes. I know that's the reverse of

24 what it is for other substances.

226

Q. Okay.

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?

A. I would have to look at the study to

6 see.

Q. Would that make a difference?

A. Possibly.

Q. Possibly because the laboratory raised

10 fishes might be more sensitive or not?

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.

Q. Was that anything that you would use

16 for weighing your recommendations here?

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.

Q. Okay.

A. But again, it's based on the type of

24 study that was done.

227

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?

A. Well, I'm familiar with his written

6 report.

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?

A. Generally, yes.

Q. Do you think the temperature has a

13 greater effect upon fish than those water level

14 variations?

A. It depends on how serious the

16 temperature effects are.

Q. Okay.

A. It could trump water level

19 fluctuations but the reverse could be true as well.

Q. And what about the actual habitat

21 conditions? Could that also trump temperature?

A. Well, I think -- yeah. In those

23 extreme variations, the flow can certainly be

24 overruling.

228

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?

A. No.

Q. Do you have a particular understanding

7 of how the sanitary and ship canal is constructed

8 with locks along the various reaches?

A. Yes, I've been on the waterway at some

10 of those points.

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?

A. It could be.

Q. I think you indicated yesterday that

19 you'd worked on the Cuyahoga River system in

20 Cleveland?

A. Yes.

Q. How many locks and dams are there on

23 the Cuyahoga?

A. There are none.

229

Q. That's what I thought. Okay.

It is channelized, but it does not

3 have the restraining devices of lock and dams for

4 navigation?

A. That's right. It's open to Lake Erie.

MR. FORT: That's all I have.

HEARING OFFICER: Go ahead,

Mr. Dimond.

MR. DIMOND: I do have one question.

10 BY MR. DIMOND:

Q. Mr. Yoder, you've got this two-degree

12 safety factor that you applied to the results of the

13 CTM models; correct?

A. Yes.

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?

A. Yes.

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?

A. Well, they're really two different

3 concepts. They just happen to be the same degree

4 Centigrade.

Q. But you could end up with a

6 four-degree safety factor there; right?

A. I'm not going to characterize it that

8 way. I don't think --

Q. Well, it would be four degrees

10 Centigrade over the published literature of the CTM

11 result; right?

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 --

MS. WILLIAMS: I mean --

MR. DIMOND: Thank you. That answers

my question.

MR. FORT: I've got one more here.

20 BY MR. FORT:

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?

A. I'd have to look at the data, I mean,

3 I'd be very surprised.

Q. You'd expect a couple would be?

A. Oh, yes.

Q. But whether all eight are isn't clear?

A. No.

Q. Thank you.

HEARING OFFICER: Mr. Ettinger?

MR. ETTINGER: I have some follow-ups

on the two-degree questions. I don't think

these were asked, at least my associates here

don't think so.

14 BY MR. ETTINGER:

Q. Where did you come up with the

16 two-degree safety factor between the short-term and

17 the long-term?

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

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.

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 --

A. Two degrees C?

Q. I'm sorry, two degree number.

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.

MR. ETTINGER: Okay. Well, can you we

go off the record here for a second?

THE HEARING OFFICER: Sure.

(WHEREUPON, discussion was had

off the record.)

HEARING OFFICER: Back on the record.

Mr. Howe, you can ask a question.

MR. HOWE: Peter Howe.

233

1 BY MR. HOWE:

Q. Mr. Yoder, do you know if the 1978

3 water quality standards for temperature in Ohio were

4 approved by U.S.EPA?

A. Yes, they were.

MR. HOWE: Okay. Thank you.

HEARING OFFICER: All right. Then

let's switch to Exxon Mobil.

MS. WILLIAMS: Is the District --

HEARING OFFICER: It was already

answered.

MS. WILLIAMS: Thank you. I missed

that.

MS. DIERS: Can we have just a moment,

please?

HEARING OFFICER: Sure.

(WHEREUPON, discussion was had

off the record.)

MS. WILLIAMS: Are we talking about

No. 12, Tom?

MR. SAFLEY: Since I have had the

benefit of the last two days, I'll be able to

ask them a little more eloquently than they

were written here.

234

Yes, Question No. 12 on Page 9 and

Question No. 15 on Page 10. But again, I'm

going to try to rephrase them in a way that

makes more sense in light of what we've been

talking about in the last couple of days.

HEARING OFFICER: Go ahead.

7 BY MR. SAFLEY:

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.

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.

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?

A. Yes.

Q. Okay. With regard to your November

5 2005 report, which I think is Attachment B to your

6 testimony --

MR. SAFELY: Is that Attachment A?

MS. WILLIAMS: They were numbered.

HEARING OFFICER: It's Exhibit 15.

MR. SAFLEY: Okay. Well, we know what

we're talking about. I haven't kept track of

the numbers or letters the right way.

13 BY MR. SAFLEY:

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?

A. No.

Q. And did you in fact consider any of

21 those kinds of issues when you were preparing that

22 report?

A. No.

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?

A. No.

Q. No, that's not correct, or no --

A. Oh, yes that is correct.

Q. Okay.

A. No, I did not take that into account.

Q. Thank you.

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.

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?

A. The excursions that you're --

Q. I just want to make sure I understood

237

1 our earlier testimony -- or your earlier testimony.

One of the options -- or within

3 the options that your report provides to Illinois

4 EPA, are maximum temperatures; is that correct?

A. Yes.

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?

A. Yes.

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?

A. I wasn't asked to do that, no.

Q. Okay. Did you in fact provide any

20 options on that issue in your report?

A. No, I did not.

Q. Okay.

MR. SAFLEY: Those are -- that answers

these questions to the extent that they're

238

directed to Mr. Yoder.

2 BY MS. WILLIAMS:

Q. I may have already asked this earlier,

4 so I apologize if I'm re-asking it.

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?

A. My opinion?

Q. Your opinion. What's your opinion?

A. No, I don't think they should be done

12 in the standard. That's my opinion.

MR. SAFLEY: If I can follow up then

on that question.

15 BY, MR. SAFLEY:

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.

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?

A. That's their call.

MR. SAFLEY: That was my only

question. Thank you.

HEARING OFFICER: Ms. Franzetti?

MS. FRANZETTI: I'd actually like to

start with of couple questions for Mr. Esaig,

so we can put a little background to

Attachment S.

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:

EXAMINATION

16 BY MS. FRANZETTI:

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?

A. If you're referring to the -- can you

22 tell me what attachment is, please?

Q. Oh, Attachment S is the field data and

24 QHEI.

240

MS. DIERS: Isn't Exhibit 5 that we've

marked, or are we talking about --

HEARING OFFICER: She's asking,

generally, about Attachment S, I believe.

MS. DIERS: So now we're in S. Okay,

I'm sorry.

MS. FRANZETTI: Yeah, not the

revised -- not the two revised sheets. I

want to go back to the beginning.

MS. DIERS: Okay.

MS. FRANZETTI: How the heck did we

get Attachment S?

MS. WILLIAMS: I would like --

MR. FRANZETTI: I think Mr. Esaig is

where it starts; correct? It came in through

an e-mail to you; right, Mr. Esaig?

MS. WILLIAMS: I would like to help

the court reporter here, Susan. I don't

think Howard has spoken here today or his

name has been spelled on the record.

So for the record we're -- the

Mr. Esaig we're referring to Howard Esaig,

E-S-A-I-G.

24 BY MR. FRANZETTI:

241

Q. Mr. Esaig, do you now have in front of

2 you Attachment S?

A. Yes, I do.

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?

A. Yes.

Q. And that e-mail was from U.S.EPA I

9 believe you said; is that right?

A. Ed Hammer.

Q. Ed Hammer, U.S.EPA.

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?

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.

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.

Q. Okay. I'm just trying to --

MS. WILLIAMS: Can you clarify when we

242

say "Ed." I think it's -- I just want to

make sure when you say "Ed."

MS. FRANZETTI: It's Mr. Hammer.

MS. DIER: Thank you.

MS. FRANZETTI: Thank you.

6 BY MS. FRANZETTI:

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?

A. I think that may have been what

14 occurred.

Q. Okay.

A. I'm not sure.

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?"

A. Probably. I don't know if that was

21 what he said or not.

Q. I understand. Not verbatim. But,

23 generally, "Would you like to see this data"?

A. Sure.

243

Q. And you say, "Yeah, send it on"?

A. Yes.

Q. Okay. All right. So you get it.

And then, once you get it, what do

5 you do with it?

A. After I looked it over, I went ahead

7 and I believe I forwarded it on to Springfield.

Q. Meaning, Illinois EPA's office --

A. Yes.

Q. -- in Springfield, the water division?

A. Yes.

Q. Anyone in particular?

A. You know, I don't recall specifically.

Q. Okay. Would it likely have been the

15 people in the water division that were working on

16 the UAA?

A. Yes.

Q. Now, with respect to your involvement

19 with Attachment S, is that where it ends?

A. (No audible response.)

Q. You forward it on, and do you do

22 anything else with Attachment S?

A. I've looked it over.

Q. Okay. Let me be more clear and help

244

1 you. Did you talk to Mr. Yoder about it or anyone?

A. No, I did not talk to Mr. Yoder about

3 it.

Q. Did you talk to anybody else at

5 MBI/CABB?

A. No, I did not.

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?

A. That's correct.

Q. Thank you. Okay.

MS. DIERS: I think Mr. Dimond had a

question.

MR. DIMOND: Yes.

16 BY MR. DIMOND:

Q. Mr. Esaig, when you sent the data to

18 other people at Illinois EPA, did you forward it by

19 e-mail?

A. Yes, I did. So there -- I could find

21 out for you who I sent it to.

MR. DIMOND: Madam Hearing Officer,

could we request that the e-mail from Mr. --

that a printed-out copy of the e-mail from

245

Mr. Hammer and Mr. Esaig's e-mail forwarding

it to other people be made part of the

record?

HEARING OFFICER: I think that's --

MS. WILLIAMS: It's fine with me. I

just don't think there's any dispute that we

got it via e-mail.

MR. ETTINGER: Is this a chain of

custody matter? I mean --

MS. WILLIAMS: I mean, is there a

question about any of that? Are you

concerned about the --

MR. DIMOND: It's not a chain of

custody matter, it's a matter of what

information Mr. Hammer may have relayed --

MS. WILLIAMS: Okay.

MR. DIMOND: -- in his e-mail when he

relayed the data.

MS. WILLIAMS: That's fine. I mean,

not today, obviously.

HEARING OFFICER: But before the March

hearing?

MS. WILLIAMS: Before the March

hearing.

246

MS. FRANZETTI: If I may, I'm going to

ask one of my prefiled questions on

Attachment S in order to, again, try and put

it a bit in context before I move to specific

questions about some of the other information

that was produced the other day and has been

marked as Exhibits 5-8. So I'm going to ask

the question, and I will leave it to the

panel of witnesses as to who is the one with

the responsive knowledge to the question.

11 BY MS. FRANZETTI:

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?

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?

HEARING OFFICER: For the record,

that's Page 24 of the prefiled

247

Question(b)(2)?

MS. DIERS: Did you say Page 24?

MS. FRANZETTI: You are good.

MS. DIERS: Page 24, what question?

I'm sorry.

HEARING OFFICER: (B)(2).

7 BY THE WITNESS:

A. Yes, we considered the whole range of

9 scores.

10 BY MS. FRANZETTI:

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?

A. We concluded that, based on QHEI,

19 ranges from 45 and above were reasons to consider

20 the habitat limit.

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?

I'm trying to put this in context

4 for all of us --

A. It came from Attachment S, yes.

Q. -- Where does this come from. It

7 comes from Attachment S.

MS. WILLIAMS: Is this coming from a

statement, a quote?

MS. FRANZETTI: It's coming -- it's my

prefiled question No. 3.

MS. WILLAMS: I'm sorry. Go ahead.

MS. FRANZETTI: It is in your

statement of reasons, I know at least it's

there, that the QHEIs range as high as 80 for

Upper Dresden Pool. I don't -- this

shouldn't be a shock, a surprise. And I'm

just trying to find out if the place I find

those QHEI scores that are as high as 80 is

in Attachment S.

Yes, Rob.

MR. SULSKI: Yes. We looked at

several sources of QHEI, so attachment S has

a value like that.

249

There may be other sources, we

have to look at all the different -- the data

and the attachments.

MS. FRANZETTI: All right. Let me --

well, fine.

MR. SULSKI: You know, there may be

some corresponding values there that, you

know, corroborate with that or whatever.

MS. FRANZETTI: Right. You're telling

me that Attachment S is at least one place

that I will find the source of the underlying

support for the statement that the QHEI

scores range as high as 80 for Upper Dresden

Pool.

MR. SULSKI: Correct.

MS. FRANZETTI: All right. I'm

submitting to you, and I'll go one -- I will

back this up with a question. But the whole

point of this is, I don't think so. I think

Attachment S is the only place where they

range as high as 80, and that leads to my

next question --

MS. WILLIAMS: Hang on.

You can answer that.

250

MR. SMOGOR: Okay.

I think that's correct.

MS. FRANZETTI: Thank you.

MR. SMOGOR: I'm sorry, my name is Roy

Smogor, S-M-O-G-O-R.

6 BY MS. FRANZETTI:

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.

So let me ask my next question,

12 which is prefiled Question 5.

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?

MR. SMOGOR: That's where I'm not

following you.

MS. FRANZETTI: Okay.

MR. SMOGOR: Because, from my numbers,

it looks like one of Rankin's scores from

Attachment R is a 69.5.

MS. FRANZETTI: All right. I'll

accept that.

251

MR. SMOGOR: Okay.

MS. FRANZETTI: That you think that's

the highest score that Mr. Rankin came up

with.

MR. SMOGOR: And, as far as I can

tell, there's two scores from the Rankin

report Attachment R from Upper Dresden Island

Pool.

MS. FRANZETTI: There were two

locations?

MR. SMOGOR: Two locations -- yes.

Two locations, each given a QHEI score.

MS. FRANZETTI: Okay. So from Mr. --

the highest in Mr. Rankin's is two locations

that scored 69.5.

MR. SMOGOR: No, I'm sorry.

Mr. Rankin has two locations, each having a

QHEI score. And the highest of those two

scores was a 69.5.

MS. FRANZETTI: All right.

MR. SULSKI: I have some sixties.

MS. FRANZETTI: Do you have them

somewhere other than Attachment R or S? Or

S. What I'm trying to do --

252

MR. SULSKI: Yes. You're just -- yes.

MS. FRANZETTI: -- is explain to the

Board that we have QHEI scores in

Attachment R, they top out at what I'm

accepting -- I'm accepting a 69.5. Then we

also have Attachment S. And, in there, they

hit a higher score of 80. There may be --

MR. ETTINGER: Excuse me. My mat may

be off, but I think 83 is bigger than 80;

isn't it?

HEARING OFFICER: I think you're

looking at the Exhibit 5.

MS. FRANZETTI: I'm talking about the

Upper Dresden Pool.

MR. ETTINGER: I'm looking at the

Des Plaines, and I see an 83 here.

HEARING OFFICER: On Exhibit 5 there's

an 83.

MS. FRANZETTI: We'll get to that.

These prefiled questions are based on

Attachment S and not any of the information

that's been produced in exhibits 5-8, 5 and

6, basically, revising what was in

Attachment S. And that's why my questions

253

are specific to Attachment S. Okay?

With respect to QHEI scores, we

have Attachment R, we have Attachment S. We

do also have the revisions to Attachment S.

Are there any other sources of

QHEI scores that the Agency relied upon in

coming to its determination that the Upper

Dresden Pool could minimally attain the Clean

Water Act aquatic life goal?

MR. SMOGOR: Yes.

MS. FRANZETTI: Okay. Where -- what

is that?

MR. SULSKI: In Attachment A.

MS. FRANZETTI: There's QHEI data in

Attachment A.

MR. SULSKI: Yes.

MS. FRANZETTI: All right. Do you

know what entity collected that QHEI data?

MR. SULSKI: I'll look, but I

believe --

MR. SMOGOR: Yes. EA.

MR. SULSKI: EA.

MR. FRANZETTI: And by "EA," we're

referring to EA Engineering, which is the

254

consultant to Midwest Generation; correct?

MR. SMOGOR: Yes.

3 BY MS. FRANZETTI:

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?

A. Those were from --

Q. Sorry.

A. I believe they were collected in 1992

11 as a part of the studies for that adjustment

12 standard.

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?

A. All I meant was they were collected in

18 1992 as part of that study.

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.

We had the other day when

23 Exhibit 8 was produced, which is the QAPP for the

24 Attachment S study.

255

HEARING OFFICER: Q-A-P.

MS. FRANZETTI: Q-A-P-P.

We had noted, while we were given

Exhibit 7, which is a collection of QHEI

field data sheets of the type that are -- a

sample is shown in Figure 5 of Exhibit 8, we

were not given a collection of the field data

sheets that are depicted in Figure 4 and are

used for the purpose of recording electro

fishing collection data. And I think an

effort was going to be made to ask Mr. Yoder

to bring those with him.

And so, I now ask, is there any

additional information, including but not

limited to the completed Figure 4 field data

sheets that you can -- the Agency can produce

to us?

MS. WILLIAMS: Can you give us a

minute to locate them? The answer is yes,

but let us -- if you want them entered now.

MS. FRANZETTI: I would have loved to

have gotten them yesterday, but...

MS. DIERS: We have them -- Susan, we

have them, we just need to make copies of

256

them. Sorry.

I thought they had done that

earlier for me. I apologize.

MS. FRANZETTI: Well, you know, the

day is long, it's the end of day, but just

for the record, we specifically asked for

these, we asked you to ask him for them.

MS. DIERS: We got them this morning.

MS. FRANZETTI: I understand. But

he's only here for --

MS. WILLIAMS: They were FedEx'd from

Ohio.

MS. FRANZETTI: He was only here for

one more day. If I hadn't asked the

question -- I didn't think he brought them.

I didn't think you had them. And I just

wanted to make it clear on the record that's

the case. So, I guess, if I hadn't asked the

question I wouldn't even be told that they

exist, you have them, but you just didn't get

them copied.

MS. DIERS: Well, I've got a lot of

other things to do. I got them this morning,

the copies were made --

257

HEARING OFFICER: Ms. Diers, we are on

the record.

MS. DIERS: I know we are on the

record, but I'm being accused of something.

HEARING OFFICER: We need to all take

a deep breath. We are going to have a copy,

I'm sure, to Ms. Franzetti before the end of

the day?

MS. DIERS: Yes.

HEARING OFFICER: At a minimum to

Ms. Franzetti?

MS. DIERS: Yes.

HEARING OFFICER: Thank you.

MS. FRANZETTI: Let me turn to the

QAPP, Exhibit 8.

16 BY MS. FRANZETTI:

Q. Mr. Yoder, I think these questions are

18 probably directed at you.

Let me ask the overall question:

20 Do you have a copy of the Exhibit 8 in front of you?

A. Yes.

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

A. Yes.

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?

A. Yes.

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?

A. Well, that's certainly the intent.

Q. All right. Well, let me put it

13 another way: Did you perform the study in

14 accordance with this QAPP, Exhibit 8?

A. Yes, I believe it was conducted in

16 accordance with the QAPP.

Q. Okay. You know, one other basic

18 point: Our copy lists a number of names under

19 approvals on the front page.

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?

A. Yes, they're signed -- there is a

24 signed original at EPA Region 5.

259

Q. That is signed by all four of those

2 individuals approving this QAPP?

A. Yes.

Q. Okay. Let me move on to a general

5 question Mr. Yoder.

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?

A. Okay.

Q. It's been awhile, I may be remembering

12 wrong.

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.

Q. Thank you. I do remember now that's

18 how you previously testified.

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

A. Yes.

Q. So that was known at the front end of

3 the study, at least by you; correct?

A. Yes.

Q. And at least by MBI/CABB?

A. Yes.

MS. FRANZETTI: Now, can I ask the

Agency: Did the Agency know at the inception

of this project that this data was being

collected and would eventually be used by it

in connection with the UAA for the Lower Des

Plaines?

Yes, Rob.

MR. SULSKI: I can recall a

conversation, perhaps, at the stakeholder

meetings of the CAWS, UAA or somewhere in

that time frame at the end of those, that MBI

would be out collecting additional data on

these systems. But that's the extent -- I

had no -- I didn't have any documents.

MS. FRANZETTI: All right.

Well, Mr. Smogor, you're here and

you're listed there as one of the interested

contacts. What role did you play as an

261

interested contact in getting this project

going?

MR. SMOGOR: I don't recall.

MS. FRANZETTI: Do you recall any

role?

MR. SMOGOR: No, nothing specifically.

MS. FRANZETTI: Okay.

You don't recall discussing any of

these purposes of this study with people from

MBI/CABB?

MR. SMOGOR: No. Nothing

specifically.

We meet every now and again Region

5 -- biological assessment technical people

meet every now and again and discuss issues.

And sometimes Mr. Yoder is there and

sometimes Mr. Hammer is there.

And so, we may talk about ongoing

projects, in general, but I don't remember

any details.

MS. FRANZETTI: Okay. All right.

HEARING OFFICER: Excuse me,

Ms. Franzetti, Mr. Dimond has a --

MR. DIMOND: Mr. Sulski, the

262

stakeholder meeting that you said that this

may have been discussed at, was that CAWS

stakeholder meeting?

MR. SULSKI: Yes. But I don't mean it

was necessarily announced, that everybody

knew. I can recall during that period of

time that there was -- somebody was

collecting go additional data on the

waterways that could be useful to the

project.

That's -- and who said it exactly,

I can't tell you. But I can recall that that

MR. DIMOND: But that was at a CAWS

stakeholder meeting, not a Lower Des Plaines

River stakeholder meeting.

MR. SULSKI: That's correct.

18 BY MS. FRANZETTI:

Q. And now, Mr. Yoder, back to you. And

20 directing your attention still on Page 3 under A(4),

21 Project Task Organization.

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."

Did you do that?

A. I did not participate directly in this

8 specific sampling, no.

Q. So that's one example of something

10 that was not done in the way the QAPP says; correct?

A. That's correct.

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."

Who was assigned as that, quote,

17 unquote, "qualified crew leader"?

A. I believe for that project it was an

19 employee by the name of Alex Johnson.

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

A. This is his first -- is was his first

2 survey of this river.

Q. All right. Okay.

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.

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.

Was the UAA -- well, who -- who is

15 the UAA study group that's referred to there?

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.

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.

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?

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.

Q. Okay.

A. It doesn't necessarily mean that they

12 have to participate in the study.

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?

A. Yes.

Q. Did this information ever flow to the

18 UAA biological subcommittee, to your knowledge?

A. I'm not aware of that. I -- in actual

20 terms, that was up to Ed Hammer.

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?

A. Yes.

266

HEARING OFFICER: Ms. Franzetti --

MS. FRANZETTI: Time to stop? That's

fine.

HEARING OFFICER: Almost a quarter to

5:00. So let's go ahead and wrap it up for

today and we'll start again tomorrow morning

at 9:00 with Ms. Franzetti. Thank you

everyone.

(WHICH WERE ALL THE PROCEEDINGS

HAD IN THE ABOVE-ENTITLED CAUSE THIS

DATE.)

267

1 STATE OF ILLINOIS)

) SS:

3 COUNTY OF COOK )

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.

IN WITNESS WHEREOF, I do hereunto set my

13 hand at Chicago, Illinois, this 11th day of

14 February, 2008.

Certified Shorthand Reporter

19 C.S.R. Certificate No. 84-4327.