1 ILLINOIS POLLUTION CONTROL BOARD
June 16, 2006
2
IN THE MATTER OF )
3 )
PROPOSED NEW 35 ILL ADM. CODE) R06-25
4 225 CONTROL OF EMISSIONS FROM) (Rulemaking - Air)
LARGE COMBUSTION SOURCES )
5 (MERCURY) )
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TESTIMONY OF DR. THOMAS HORNSHAW
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BEFORE MARIE E. TIPSORD
8 HEARING OFFICER
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The testimony of Dr. Thomas Hornshaw,
10 a witness called in the rulemaking proceeding before the
Illinois Pollution Control Board taken on June 16, 2006,
11 at 9:00 a.m., at the offices of the Environmental
Protection Agency, Springfield, Illinois, before Holly
12 A. Schmid, Notary Public and Certified Shorthand
Reporter, CSR No. 084-98-254587 for the State of
13 Illinois.
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1 A P P E A R A N C E S
2 MEMBERS OF THE ILLINOIS POLLUTION CONTROL BOARD:
Ms. Marie E. Tipsord, Hearing Officer;
3 Dr. G. Tanner Girard, Board Member;
Ms. Andrea S. Moore, Board Member;
4 Mr. Anand Rao, Board Staff;
Mr. Thomas Johnson, Board Staff;
5 Mr. Tim Fox, Board Staff;
Mr. Nicholas Melas, Board Staff;
6 Ms. Alisa Liu, Board Staff.
7 COUNSEL FOR THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY:
8 Mr. Charles Matoesian;
Ms. Gina Roccaforte;
9 Mr. John Kim;
Mr. Richard Ayres;
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11 COUNSEL FROM SCHIFF-HARDEN
Ms. Kathleen Bassi;
12 Mr. Stephen Bonebrake;
Mr. Sheldon Zabel;
13 Mr. Jim Ingram, Dynegy, Inc.
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COUNSEL FROM JENNER & BLOCK
15 Mr. Bill Forcade;
Ms. Katherine Rahill.
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COUNSEL FROM McGUIRE-WOODS:
17 Mr. James Harrington;
Mr. David Rieser.
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Mr. Keith I. Harley,
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1 E X H I B I T S
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3 IDENTIFICATION PG.
4 Exhibit No. 33: 60
5 Exhibit No. 34: 82
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1 Q. MADAM HEARING OFFICER: I would just
2 note that Dr. Hornshaw has previously been sworn in, and
3 his testimony entered as Exhibit 9, and with that, we
4 will begin with Dynegy's questions, and I understand
5 that Mr. Bonebrake can identify several that we have
6 already answered.
7 MR. BONEBRAKE: We were talking about
8 a number of questions that -- these are from the Dynegy
9 and Midwest Generation -- that had been proposed to
10 Dr. Hornshaw that we believe had been adequately
11 addressed in prior testimony, and so forth in this
12 proceeding. I can identify a number of these for the
13 record. It may be that there will be some additional
14 questions or subparts of questions that also will fall
15 within this category, but I thought I could identify a
16 number of them up front. These are Questions 15, 16,
17 17, 18, 19 and 20 subpart D.
18 MR. KIM: I think we are going to
19 start with the Dynegy questions first, and there were a
20 few other questions presented to Dr. Hornshaw from
21 Prairie State, and I think that's only a hand full.
22 MADAM HEARING OFFICER: Two questions,
23 actually, and one of those he has already answered.
24 MR. KIM: Before Dr. Hornshaw begins,
Page4
1 I guess I just wanted to raise my concerns about
2 questions one through 6, the Asian carp questions. We
3 were just wondering about the relevancy of the
4 questions, and he did not make any statements concerning
5 Asian carp, and he was just as perplexed as we were of
6 the significance of the questions.
7 MR. BONEBRAKE: You have raised --
8 actually, one is relevancy, and the second is the
9 knowledge of the witness on the question. Regarding
10 relevancy, there has been some indication in the TSD
11 that, if mercury issues are addressed in the state,
12 somehow fishing revenues would increase in the state.
13 There's a suggestion that that might happen. It wasn't
14 entirely clear to me, but it seemed to include the
15 possibility of increasing commercial fishing in the
16 state, and so, therefore, things like the presence of
17 this species that have impacted what might be viewed as
18 a desirable fish species seems to be relevant to that
19 economic question, and the reason these were directed to
20 Dr. Hornshaw is our understanding that I think it's been
21 born out through some answers he has already provided in
22 his testimony that he has some knowledge regarding fish
23 in the state, and so he seemed to be a natural person to
24 whom we could pose these types of questions.
Page5
1 MR. KIM: Again, the concern we have
2 is just the relevance of the questions. Dr. Hornshaw
3 can attempt to answer these, but it was not,
4 specifically -- that particular species of fish was not
5 addressed. There's no -- I don't think we have any
6 great body of information on that. I understand now
7 where the questions are coming from, and I appreciate
8 the explanation, but we would just I guess officially
9 raise an objection, if you will, of relevancy to
10 questions one through 6.
11 MADAM HEARING OFFICER: I think we
12 will let Dr. Hornshaw answer them as best he can.
13 DR. HORNSHAW: Question No. 1: "Are
14 Asian carp present in Illinois waters?" Do I have to
15 answer that? Unfortunately, yes. "Are they destructive
16 to Illinois waters?" Unfortunately, yes. Question 3 --
17 CROSS EXAMINATION BY MR. BONEBRAKE:
18 Q. Dr. Hornshaw, can you describe in what way
19 they are destructive?
20 A. The answer to that is the answer to No. 3.
21 "Are they displacing the other fish, and if so, which
22 ones?" The answer is, unfortunately, yes. They are
23 displacing any of the fish species that are a native to
24 the Illinois, the filter feeders, as are the Asian carp.
Page6
1 "Are they eaten by Illinois fisherman?" The answer is
2 yes, not enough.
3 MR. BONEBRAKE CONTINUES:
4 Q. Just a follow-up question. Are Asian carp
5 eaten less frequently -- do you know, Dr. Hornshaw --
6 than the native fish species that are being displaced by
7 Asian carp.
8 A. Yes. I can't answer that. Wait. Did you
9 say are they eaten more frequently?
10 Q. Less frequently.
11 A. The answer is yes. They are eaten less
12 than the native carp, for instance, which actually have
13 a commercial market. The Asian carp they are trying to
14 develop commercial markets, unfortunately, not enough at
15 this point, but the answer is yes.
16 Q. Are Asian carp viewed to be garbage fish
17 that are not desirable from a consumption perspective?
18 A. Not from what I heard. In some
19 discussions I have had with DNR personnel who have tried
20 them, they said they are better than native carp that
21 are swimming in our waters. There is a commercial
22 market for smoked Asian carp that has developed, and
23 I've been told by several people that those are actually
24 pretty good. Unfortunately, they are not able to
Page7
1 harvest and sell enough of them. I think I just
2 answered 4-A and B.
3 MR. BONEBRAKE: That's fine.
4 DR. HORNSHAW: Five: "Did the number
5 of commercial fisherman in Illinois drop from the mid
6 70's to 1995?" I have no way of answering that. You
7 would have to ask DNR that. 6: "Were fewer fish caught
8 in Illinois waterbodies in 1995 and sold in the
9 commercial market than in 1979?" Again, I have no way
10 of answering that. You would have to ask DNR. 7:
11 "What were the number of fishing licenses issued in
12 Illinois for each of 1985, 1990, 2000 and 2005?" I can
13 only answer as I have already testified. DNR has told
14 me for the last several years they have sold over
15 700,000 fishing licenses per year.
16 MR. BONEBRAKE:
17 Q. Dr. Hornshaw, to your understanding, is
18 that number has been, essentially, flat over the last
19 several years?
20 A. That's what I've been told, and that
21 doesn't cover everybody because children under 16 or 17
22 -- I'm not sure what the exact age is -- are not
23 required to buy a fishing license and military personnel
24 on active duty, but on leave are also not required to
Page8
1 purchase a fishing license, so somewhat greater than
2 700,000, and I can't answer better than that.
3 CROSS EXAMINATION BY MS. BASSI:
4 Q. Your answer to a couple of these was you
5 don't know; we have to ask DNR. Do we get to ask DNR?
6 MR. KIM: We don't have them on our
7 witness list, but I think you have a hearing coming up
8 sometime soon.
9 DR. HORNSHAW: "Has Dr. Hornshaw
10 published any ecological or health risk assessment
11 studies in any peer-reviewed publication?" The 1983
12 publication that's in my curriculum vitae attached to my
13 testimony. The paper that's in "The Journal of
14 Toxicology and Environmental Health" deals with
15 potential risks to make from eating environmentally
16 contaminated fish, fish contaminated with PCB's. Nine:
17 "Did Dr. Hornshaw draft or assist with drafting any
18 portion of the TSD? If so, which portion?" I drafted
19 the portion of Section 4.2 and all of 4.5. "Are the
20 duties authorities, powers and procedures of the
21 Illinois Fish Contaminant Monitoring Program set --
22 MADAM HEARING OFFICER: I apologize
23 for interrupting. We have been notified that there's a
24 white Audi with its alarm going off.
Page9
1 (Discussion was held off the record.)
2 DR. HORNSHAW: "Are the duties,
3 authorities, powers and procedures of the Illinois Fish
4 Contaminant Monitoring Program set forth or described in
5 any statute or regulation?" I think I have answered
6 this before. No. 11: "Do the decisions and
7 determinations of the Fish Contaminant Monitoring
8 Program, such as fish tissue mercury levels that trigger
9 fish consumption advisories, have the force of law in
10 Illinois or are they merely to guidance to the public?"
11 Guidance, and A: "If the Agency contends that any such
12 decisions are determinations do have the force of law
13 please describe the basis for that contention."
14 Guidance. 12: "Is there any public involvement in the
15 decision-making process used by the --
16 CROSS EXAMINATION BY MR. RIESER:
17 Q. Just on that last one, Dr. Hornshaw, you
18 said that, if I recall, if the Agency has information
19 suggesting they have a force of law, please say what
20 those are. That's guidance. Is that correct?
21 A. That's correct.
22 Q. It's correct, isn't it, that the Agency's
23 determination that the TMDL process that Ms. Willhite
24 talked about Wednesday was driven by the fact that fish
Page10
1 advisories had been issued for many Illinois streams,
2 isn't it?
3 A. I believe that's what she said, yes.
4 Q. So and is the Agency -- do you know --
5 I'll ask you -- do you know whether the Agency has
6 discretion to not move forward with the TMDL process for
7 mercury, in light of those fish advisories?
8 A. I have nothing to do with the TMDL
9 process, so I can't answer.
10 Q. Thank you.
11 DR. HORNSHAW: Question 12: "Is there
12 any public involvement in the decision-making process
13 used by the FCMP? I believe I have also answered this
14 before. The answer is no. 13: "Are the decisions of
15 the FCMP subject to any peer review by persons or
16 entities other than the Agencies that are part of the
17 FCMP?" Again, no. 14: "At page one of Dr. Hornshaw's
18 testimony, he states, `I am familiar with the fish
19 contaminant data generated by FCMP, and maintain
20 database of these laboratory results.' With respect to
21 this statement, A, is this database publicly available?"
22 I believe I answered this already.
23 MADAM HEARING OFFICER: Just to
24 refresh my memory, I'm sorry.
Page11
1 DR. HORNSHAW: My database -- well, I
2 will just read the answer I prepared. The database
3 referenced in my testimony was created several years ago
4 to provide easier access to the fish contaminant data
5 than what is available from the main database, which is
6 contained in Storet, S-T-O-R-E-T. It is not readily
7 available to the general public, since it is a condensed
8 version of the data in Storet, which is available to the
9 public. Also, this database would be practically
10 unusable to the public because it contains abbreviated
11 entries that are understand by the members of FCMP, but
12 would require explanation before members of the public
13 would be able to use it. For example, all the
14 waterbodies are identified only by the station codes
15 given to them, instead of by name. Nevertheless, this
16 database had been made available upon request through
17 FOIA with lots of explanations and additional material.
18 It is not available on U.S. EPA website.
19 MR. BONEBRAKE CONTINUES:
20 Q. A follow-up question. You reference
21 something called Storet?
22 A. Yes.
23 Q. Can you -- is that a database of
24 information?
Page12
1 A. It's a U.S. EPA database. It's the
2 database that the Agency stores water quality data in,
3 including fish tissue. As a personal editorialization,
4 it's the least user-friendly database ever created,
5 which is why I have to have a database made up that I
6 could actually use.
7 Q. To your knowledge, is all of the fish
8 tissue in your personal database also contained in this
9 Storet database?
10 A. As far as I know, yes.
11 Q. As far as you know, is the fish tissue
12 data in the Storet database with respect to the Illinois
13 tissue levels in Illinois correct and accurate?
14 A. Correct and accurate.
15 Q. I'm just trying to get to whether you have
16 any knowledge of any errors in the Storet database with
17 respect to Illinois fish tissue sampling?
18 A. I'm certain there probably are errors.
19 There are data entry errors in any data.
20 Q. But are you, personally, aware of any?
21 A. Like I said, I don't use Storet. You
22 can't use Storet.
23 Q. But you're not, personally, aware of any
24 errors. You just think there may be some?
Page13
1 A. I would be extremely surprised if there
2 weren't.
3 CROSS EXAMINATION BY MR. ZABEL:
4 Q. Just as a follow-up, you did say you
5 extracted your database -- data from Storet. Is that
6 correct?
7 A. The data prior to 1997 was entered into my
8 database from a database that originated from Storet
9 that the Bureau of Water keeps to keep track of their
10 fish stuff. Everything since 1997 has been entered by
11 my secretary.
12 MR. RIESER CONTINUES: If this is a
13 decent stopping place for Mr. Bonebrake, we would be
14 prepared to proceed with the questions of the last
15 questions for Dr. Keeler.
16 MADAM HEARING OFFICER: Okay. We'll
17 start at 14-B with Dr. Hornshaw. Dr. Keeler, welcome
18 back. It's been a long time. I remind you you are
19 still under oath, and thank you very much.
20 (At which point, Ameren's questioning
21 of Dr. Keeler resumed.)
22 MR. RIESER CONTINUES:
23 Q. Dr. Keeler, looking at Exhibit 32, which
24 is entitled "Mercury Deposition of the Great Lakes
Page14
1 Region" dated February 22, 2006, and it's correct that
2 this is the Powerpoint slash presentation you gave at
3 LADCO?
4 A. That's correct.
5 Q. Turning to the page, these are not
6 numbered, but turning to the page that says "Source
7 Apportionment Results, Steubenville, Ohio" --
8 A. Yes.
9 Q. Are these values on this page for the
10 measured PMF estimated CFUB and unmixed estimated CFUB,
11 are these the numbers that are contained in your
12 Steubenville report?
13 A. In the manuscript that was submitted?
14 Q. Correct.
15 A. Actually, I don't think they are. These
16 are the numbers from the preliminary work that was done
17 on the 2003-2004 combined data, but they are not very
18 different. I mean, they are not substantially different
19 than this.
20 Q. Turning further in there is a page called
21 "Analysis of NISTSRN, 1633 (fly ash)". Do you see that?
22 A. Keep going back?
23 Q. Yeah. It's passed the leaf stuff.
24 A. Yes. I see that.
Page15
1 Q. Could you repeat that? It's the analysis
2 of NISTSRN 1633, fly ash. It's probably two-thirds of
3 the way through. Could you describe what this is?
4 A. Sure. One of the things that we enjoy
5 doing in my laboratory is developing new analytical and
6 sampling techniques to more properly measure quantify,
7 speciate the forms of mercury in the environment and all
8 media, and one of my doctoral students, Mary Lynam,
9 working together with research scientists in the
10 Department of Geological Sciences at the University of
11 Michigan developed a new technique that's fairly
12 sophisticated using high resolution, ion-couple
13 plasmatometry (phonetic) and a thermal decomposition
14 technique to, basically, get profiles for various
15 mercury compounds that are absorbed into particles in
16 the atmosphere, trying to understand what is the process
17 by which mercury clung onto particles before they
18 deposit or go into rain, so it's an approach to
19 determine more information on the form of mercury, and
20 so this plot was just representative of we took --
21 "NIST" is, of course, National Institute for Standards
22 and Technology, and they provide SRM's, which are
23 standard reference materials. Each one of them has a
24 number. In this case, the number of the reference
Page16
1 material is 1633, and it is composed of fly ash, and the
2 fly ash year was chosen because it's a particulate
3 standard, and that's what we were looking at, in terms
4 of trying to develop the technique, and this just shows
5 the thermal profile as you put the sample into this very
6 precise, small oven, as you ramp the temperature up, the
7 levels of mercury that are released from the sample as a
8 function of temperature, and so the point here was, at
9 320 degrees Celsius, we got the maximum amount of
10 mercury released from this FRM (sic), and then we also
11 quantitated how much came out and compared it to how
12 much NIST was found, so we used the NIST value and how
13 we quantitated it, and provided the concentration
14 provided by NIST, and then the concentration that we
15 provided using our technique which has that -- I'm not
16 going to try to say the acronym, but the
17 C-V-I-D-T-A-H-R-P-M-S (phonetic), the one down at the
18 bottom, that's the method we developed, and you can see
19 that the agreement is outstanding, well beyond the
20 precision necessary to quantify anything in the
21 environment, so that's what that's all about. Just a
22 slide as an example of what a profile would look like
23 using a reference material, and shows that it is not as
24 quantitative -- I mean as quantitative, in terms of its
Page17
1 ability to determine the amount of mercury, but it also
2 gives you some other information, in terms of the
3 profile, so that's what that's about.
4 Q. Turning a couple pages forward -- I would
5 say three to be precise -- to the Mercury Atmospheric
6 Chemistry. Could you describe what this graph is,
7 please?
8 A. Sure. I use this graph in the
9 presentation to illustrate a finding that we had again
10 in some actual observed measurements from our site in --
11 it says Ann Arbor, Michigan -- and so on what is plotted
12 here in red is the reactive gaseous mercury
13 concentration and picograms (phonetic) per cubic meter,
14 and that's the axis that you see there on the Y axis.
15 On the bottom, there are two,
16 three-day periods. One is June 22, 23 and 24 in 1999;
17 the other is July 11, 12 and 13, 1999; and these two
18 periods were picked out and put together to show the
19 relationship that we found in the data between reactive
20 gaseous mercury and the concentration of ambient ozone
21 at that site, and to show that, A, that the two are
22 correlated, and that when we first saw this, we were
23 surprised because we had thought that we would see an
24 end correlation in these, and so finding this
Page18
1 correlation, we started to investigate further to look
2 for what atmospheric chemical reactions could possibly
3 be causing a positive correlation between these two
4 species, so that's what that figure is showing.
5 MS. BASSI CONTINUES:
6 Q. Have you -- since you did not expect to
7 see this particular correlation, have you pursued this
8 to see that it occurs in other situations, as well? In
9 other words, have you done this again?
10 A. Oh, yeah. We now see this repeatedly at
11 other places. What's interesting about this is that we
12 found that, if we tend to not see a really high RGM
13 concentrations, unless the ozone is significantly above
14 60 parts per billion, so when we see a more focally
15 active air mass we tend to see a more reactive mercury
16 in that air mass, so yes, we have seen it in additional
17 years. This was just an example of one we had plotted
18 up from 1995 that I showed.
19 Q. So then can one conclude from that
20 statement then that you see less RGM in the winter than
21 you do in the summer?
22 A. At rural sites, we see less RGM in the
23 wintertime.
24 Q. At rural sites?
Page19
1 A. Yes.
2 Q. What about urban sites?
3 A. Not very much finality in the reactive and
4 particulate mercury. There is some, but I don't believe
5 it's statistically significant.
6 Q. What do you attribute that?
7 A. Direct emissions of reactive mercury from
8 sources.
9 Q. What do you attribute the other from,
10 then, in the summer?
11 A. In the rural locations?
12 Q. Yes.
13 A. Some of it is transport, and some of it is
14 this phenomenon where we are seeing some photochemical
15 production. We ascribe this actually from creating
16 reactive mercury from elemental mercury during
17 photochemically active transport. And what's
18 significant about this is that it tells us that the
19 forms of mercury, not just reactive, particulate forms
20 are important to take into account from all sources,
21 including power plants, but the elemental form can also
22 be chemically reacted on regional scales and deposited
23 to watersheds.
24 Q. Would a reduction then in regional ozone
Page20
1 levels, arguably, result in a reduction in regional RGM
2 levels?
3 A. I would say yes.
4 MR. RIESER CONTINUES:
5 Q. In evaluating this issue, have you looked
6 at whether the RGM transports are the same as ozone.
7 A. Good question. If you look at the plots,
8 and you kind of look at the width of the plume, or the
9 width of the reactive mercury elevation in each of these
10 situations, one of the reasons why I picked these out is
11 because it tends to be longer-lasting as it indicates
12 that there's longer transport with a higher aerial
13 extent to the plume. These are things that you see
14 commonly when you look at air quality data, and to our
15 surprise, they had more in common than they did not.
16 When we see specific plume impacts, the plumes tend to
17 have a very short half width. In other words, you see
18 less high bars, and they are not these big, wide bars
19 that take up a half of a day. The whole like late
20 morning to early afternoon to early evening. They tend
21 to be two or three hours worth of extended, so you can
22 see a very different behavior and ozone doesn't
23 correlate with them during those situations.
24 Q. Ozone does or --
Page21
1 A. Does not correlate with reactive mercury
2 plumes when they are shorter durations. They tend to be
3 higher concentrations. In those cases, the plume tends
4 to be higher than the 120 that you see here, but when
5 they are shorter they have a very different transport
6 characteristic.
7 Q. Does that -- I'm sorry -- suggest anything
8 to you with respect to RGM? I mean, did you take any --
9 A. It helps me to straighten out primary RGM
10 emissions from secondary, and tells me somewhat about
11 RGM that RGM can get transported over regional scales
12 fairly effectively, and the interesting thing, as you
13 notice the RGM goes down to nothing, so at night, all
14 this RGM is gone, so those photochemical air masses that
15 have all these mercury gone at night, all that reactive
16 mercury goes to the surface, so that's important because
17 that was the question that was asked earlier. The
18 elemental forms that come out of surfaces also can
19 regionally react, and deposit on regional scales, and
20 all of these environmental problems tend to have common
21 trends and photochemistry and production of ozone and
22 production of particulates, lowering those emissions
23 will result in lower the reactive mercury burden and
24 also the lower the amount of mercury dry deposited and
Page22
1 probably wet deposited into the ecosystem.
2 MS. BASSI CONTINUES:
3 Q. I'm sorry. I don't have -- my notes are
4 not that well organized, and I can't find whether you
5 said this or someone else said this, but there was
6 something said one of the past days this week that there
7 were reactions that take place in mercury, and maybe
8 it's from elemental to reactive in clouds, as opposed to
9 photochemical type reactions, and yet, what you are
10 talking about now sounds like photochemical type
11 reaction. Was that you?
12 A. Yeah. I mean we had some type of
13 discussion like that. There are reactions that occur in
14 the cloud droplets in the aqueous phase, in addition to
15 ones that occur in the ambient environment. When I
16 started doing mercury atmospheric work in 1990, the
17 thought was that gas phase reactions to two gaseous
18 molecules colliding and chemically reacting was not
19 important for mercury, that all of the chemistry was
20 occurring in cloud droplet, so ozone and cloud droplet
21 would transform elemental mercury into reactive mercury
22 and it would be removed, and what we have learned over
23 the past 16 years, plus, is that, in fact, there appears
24 to be other reactions that occur in the gas phase. What
Page23
1 we haven't been able to determine, yet, is whether some
2 of these are heterogeneous reactions. In other words,
3 they occur on the surface of particles, and hence, why
4 we were trying to develop new techniques to be able to
5 look at a chemistry that occurs on the surface of these
6 properties, so look at heterogeneous. That's what that
7 means, gases interacting with particles that are in the
8 atmosphere. So we're just uncovering that, and these
9 are the things that really add to the uncertainty, and
10 source type of model. This is why I don't believe that
11 CMAQ and the other Eulerian type source models
12 adequately depict what happens in terms of what comes
13 from this source and goes there. I mean, we just do not
14 have a very good handle on all of these processes and
15 the observations are telling us we don't have a very
16 good handle on this. We have tried to take the
17 mechanism, the chemical mechanism, that was originally
18 in CMAQ and reproduce it, and we cannot do it, so just
19 to give you an idea, so we take a numerical model, take
20 the actual data for these days, and we cannot reproduce
21 the data we have here for ozone or reactive mercury, so
22 this is why I have a strong disbelief in the left side
23 of me, which is the modeling side, and the right side
24 keeps saying I better keep taking measurements because,
Page24
1 at least, I know those are good and are telling us
2 what's really there in the environment. I'm hoping one
3 day we'll be able to have this type of predictability,
4 but I don't believe it's mature enough to be used at
5 this point.
6 MR. RIESER CONTINUES:
7 Q. I will continue on to the summary, which
8 is four pages towards the back. Does the discussion you
9 just had with respect to Ms. Bassi's question that
10 supports this bullet point that atmospheric
11 transformations in mercury can significantly effect
12 mercury deposition. Is that correct?
13 A. Yes, that's correct.
14 Q. And that's what that quote is about, and
15 then is sub-bullet is Regional Scale Photochemistry RGM
16 Production. That was the phenomenon you just described.
17 Is that correct?
18 A. Yes. That's referring to the discussion I
19 had in my presentation.
20 Q. And then you just talked about the issues
21 with -- you had with CMAQ, and then two pages, again,
22 towards the back, you have a slide titled "Community
23 Model for Air Quality CMAQ UM Modifications for
24 Mercury." What does this slide describe?
Page25
1 A. We have had two grants from the United
2 States Environmental Protection Agency to gut CMAQ and
3 replace it with chemical scheme, and a process for
4 mercury wet deposition and dry deposition that,
5 basically, help improve what the original CMAQ had in
6 it. CMAQ is a model that tried I think to capture
7 everything for everyone, and so therefore, it doesn't
8 please anyone at any time, and so there are a lot of
9 things that were done in CMAQ that I think were of a
10 high quality. I'm not being critical of the people that
11 did the work. I think they did a fabulous job with a
12 difficult task, but the model, as it stood when we got
13 it, had many flaws, and so working with Sandy Somen at
14 the University of Michigan who is a well known
15 photochemical modeler, and has been for more than 20
16 years, and has been published extensively in the
17 peer-reviewed literature, he has taken his chemical
18 mechanism and taken out the chemical mechanism that was
19 in CMAQ and replaced it with Sandy's chemical mechanism,
20 which is completely different, and which is somewhat
21 described here we improved the way the clouds are
22 parameterized to try to improve the wet deposition
23 parameterizations, and when we spend some additional
24 time trying to focus on making sure that the emissions
Page26
1 inventory and the speciation used was more in line with
2 what the literature and the community is all using
3 because that's constantly something that's going to
4 change and very important to make sure you are on top
5 of. You don't want to use the 1990 emissions inventory
6 for speciation because it's all wrong, so we have made
7 major modifications to CMAQ, and we're -- and the one
8 thing that we haven't done to date is that we're using
9 this as a tool to try to understand the chemistry and
10 the deposition, and so we will look at small-scale
11 scenarios. We will model for a couple weeks during a
12 period where we have an observation on multiple sites
13 and see where the models are working well, and when I
14 mean "the model" I mean the modified model now, and then
15 try to go in and see if we can't improve the
16 parameterization that we have in the model to better
17 describe what we are seeing, and then rerun the model,
18 and see how much you have been able to improve. This is
19 how science is done is observations to modeling, and
20 this work is difficult, but we're making great progress
21 and with Sandy's improvements, we actually are able to
22 reproduce some of the things that we're observing in
23 terms of the photochemistry, so we have run some
24 scenarios looking at that.
Page27
1 Q. Do you have a sense of when you expect
2 that work to be at the point where there will be a
3 revised version of CMAQ that the public can use, or the
4 U.S. EPA can use?
5 A. I guess I don't really know how that
6 answer. I don't know what the answer to that would be.
7 We -- our current grant ends at the end of the year, and
8 we usually ask for a one-year extension, and so I'm
9 hoping that this phase of the model improvement will be
10 done sometime at the end of 2006 is my answer, and there
11 are other groups working on CMAQ. Everyone has their
12 pet thing that they like, whether it's surface
13 reemission, or cloud chemistry, so we just have
14 expertise in the chemistry end, and so we are spending a
15 lot of time with that.
16 MR. HARLEY CONTINUES:
17 Q. One question. I believe he's answered
18 this, but going back to the Steubenville EPA PMF slide
19 within the Powerpoint presentation, about nine pages
20 down. Throughout your testimony, you spoke about the
21 process of fingerprinting for different source
22 categories?
23 A. Yes.
24 Q. And is that what is reflected in this
Page28
1 slide?
2 A. It's the one that has "Steubenville EPA
3 PMF Apportionment Results, 2003-2004" and has a list of
4 all the trace elements, major, ions and mercury and so
5 forth. Yeah. This was meant to be an example, and I
6 think this example that was given is similar to the one
7 that I think Dr. Landis had, and I think I borrowed that
8 from his presentation, and it really is to reflect the
9 elements that were used in our analysis together with
10 the ones that you can see are sticking out, in terms of
11 the different sources. One of the points that's
12 important to make here is that we do not use one element
13 for a source category. We try to use a variety of
14 elements, and it's really the multitude of multiple
15 elements that goes into defining the contribution from a
16 specific source, and it's really, and one of the things
17 that is accomplished in this goose-tracking uncertainty
18 method is that it actually propagates uncertainties
19 through these elemental compositions to allow you to see
20 how sensitive the results are to any one element, or
21 whatever, but we do not go in and say we want, for
22 example, selenium to be the only tracer for coal
23 combustion. That's not how it's done. It uses all
24 these elements together in a multivariant sense.
Page29
1 Q. So by corresponding these other elements
2 with typical emissions from different source categories,
3 you are then able to conclude that the mercury that you
4 are reading corresponds with a source category?
5 A. Yeah. Basically, we look to see if the
6 elements that are emitted or identified with a factor
7 analysis, or the PMF analysis in this case, correspond
8 to source profiles that have been published in the
9 literature or from previous studies that we have done
10 where we have actually collected samples from various
11 sources, and what you see here reflected is the average
12 of all of those samples and the relationship that we got
13 from the 162 samples that we looked at, so what's not
14 shown here just because it's already a horribly
15 miserable slide to make at a presentation because you
16 can't see anything, so I didn't spend a lot of time on
17 this, but there are uncertainties associated with each
18 one of these elements, as well, so for every number
19 that's on here, there's plus or minus with a number
20 written next to it, and it's just unruly when you're
21 making a presentation, but the uncertainties here are
22 really not what's important in terms of the point.
23 Q. If this is sort of a Rosetta Stone slide
24 fingerprinting or source categories, could you please
Page30
1 describe the meaning of the bottom column that says,
2 "Percentage mercury and how the percentage mercury was
3 then traced to different categories in Steubenville"?
4 A. Well, this, by no means, a Rosetta Stone
5 because one of the things what we find here is
6 representative of the sources that -- the most important
7 sources in the Steubenville area, but basically, what it
8 does is calculates the source profiles, and for each
9 sample, then, it has a calculated amount that each one
10 of these factors -- you can see factor one, factor two
11 and so forth -- each one of these factors contributes to
12 the quantity of each element in each precipitation
13 sample, so you have got this huge matrix with six
14 contributions to, in this case, manganese for every
15 single 162 samples, and then it goes on, and does that
16 for aluminum, and it's as simple as you can add those
17 contributions up for each one of the samples, and then
18 divide by the total to get the fraction that you have
19 compared to the total from each one of these source
20 categories. I've simplified the mathematics, but
21 that's, in essence, what it does, and again, because the
22 model propagates uncertainty through the entire
23 mathematical algorithm, it also gives us an uncertainty
24 number that's reflected in that number.
Page31
1 Q. Reading the slide, am I to conclude that
2 the contribution of the iron steel industry to the total
3 observed mercury would be 4 percent, plus or minus, 3
4 percent?
5 A. Yes, that's correct. For this wet
6 deposition result, that's what we found.
7 Q. And this seems to indicate that the
8 contribution of the coal source category dwarfs by 20 or
9 more times than the nearest other source category. Is
10 that correct?
11 A. That's a correct interpretation, yes.
12 Q. Thank you, Doctor.
13 MR. ZABEL CONTINUES:
14 Q. On something I noticed in the slides,
15 Doctor, the Cardinal Plant looks almost as close to
16 Steubenville as Sammis. How far is it? Do you know?
17 A. You're right. It's within a couple of
18 miles, seven to nine miles. What we were asked to do
19 was to make sure there were, at least, three plants
20 within some distance from the selected site, and so
21 those two plants, clearly, are both within 10 miles of
22 the plant.
23 Q. Cardinal is on the river, as well?
24 A. Yes.
Page32
1 Q. Do you know the size of those two plants?
2 A. Again, I do have a complete list. They
3 are both fairly large plants. I know the Sammis Plant
4 is fairly large plant, one of the largest in the area.
5 Q. Coal-fired, are they not?
6 A. Both coal fired, yes.
7 MR. RIESER CONTINUES:
8 Q. Looking at the same slide that Mr. Harley
9 directed you to, under the factors, you have got
10 descriptions: Factor one: Iron-steel; Factor 2:
11 P sources. That's the phosphorus source? It says "P
12 source." Is that phosphorus?
13 A. Yes.
14 Q. Factor three is coal. Is that coal
15 combustion?
16 A. Coal combustion, yes.
17 Q. Is that specific to any type of coal
18 combustion? In other words, specific to any type of
19 operation using coal combustion?
20 A. We, again, I apologize if I wasn't clear
21 in my explanation of this yesterday. This is where we
22 then take and do an emissions reconciliation where we
23 then say, "What other information is at our disposal to
24 help us interpret what we find in the receptor models?"
Page33
1 and we go and look at emissions that are in a region
2 around the site that could have contributed and it turns
3 out that based on the EPA emissions inventory,
4 something, like, greater than 98 percent of the coal
5 combustion that's done is in coal-fired utilities, so
6 that's -- so yes, it's coal combustion, and then we
7 determine that it's primarily a coal-fired utility
8 because that's the largest consumer or combuster of
9 coal.
10 Q. So you use the fingerprinting, the
11 signature-fingerprint process that we described, and it
12 allows you to identify mercury associated with coal
13 combustion, and then you use the emissions inventory to
14 identify the sources of coal combustion within a certain
15 region of the sampling location?
16 A. To help us, in terms of identifying that
17 we believe that that's, again, greater than 98 percent
18 from coal-fired utilities.
19 Q. But the fingerprinting doesn't identify
20 the coal combustion as a utility source. It just
21 identifies coal combustion.
22 A. That's correct.
23 Q. And then so you use these other tools that
24 you've --
Page34
1 A. Spacial analysis, and then understanding
2 what the inventory tells us and so forth.
3 Q. Thank you.
4 MADAM HEARING OFFICER: Dr. Keeler,
5 again, thank you.
6 (A small break was taken.)
7 MADAM HEARING OFFICER: I have had
8 several people inquire about our schedule, and they are
9 all gone. Everybody who was asking left. One thing we
10 will begin at 9 a.m. on Monday. I think we can still
11 have a lot to do, and I think we are going to --
12 MR. KIM: I believe what we are going
13 to do is -- I have been asked the same question, as
14 well. I think what we are going to do is Jim Ross has
15 some questions that, in addition to the Dynegy questions
16 that he already answered, he has questions that are
17 directed to him from other utilities that also have some
18 general information and some information that will be
19 addressed later on in the week, and so he will probably
20 try and answer the general stuff as quickly as possible,
21 and then Jim Ross, after he's done with that, Mr. Ayres
22 had some general questions addressed to him, so we will
23 try to get those taken care of, and then what we were
24 going to do -- our thought, as far as a progression of
Page35
1 information, was to, first, present the testimony
2 concerning the emission standards, and then move to the
3 technical feasibility, which would include technology
4 availability, as well as some economic testimony, and
5 that would be Mr. Staudt or Dr. Hausman, Mr. Nelson
6 Mr. Forter and then we would conclude with the sort of
7 the miscellaneous category, but my anticipation is that
8 throughout the week, with the exception of Mr. Nelson
9 and Mr. Forter, I think Mr. Ross, Dr. Staudt, Mr. Ayres,
10 and I think even Dr. Hausman are pretty much have
11 committed to be here all week, so it's not like they are
12 not going answer something, if it comes up. That's sort
13 of the order that we had anticipated.
14 MADAM HEARING OFFICER: At this point,
15 I think when Dr. Hornshaw is done today, we'll adjourn
16 for the day and get back to it on Monday.
17 MR. HARRINGTON: Just clarifying,
18 Dr. Staudt, at the earliest, will be late Tuesday.
19 MR. KIM: My guess would be, yes, late
20 Tuesday at the earliest, and I indicated to counsel
21 during the break that I know that they have some people
22 that they are going to come in, and they would like
23 those people present when some of our witnesses are
24 questioned and to the extent that we can, I'm sure we
Page36
1 have got -- if Dr. Staudt's turn on our little schedule
2 comes up, but some of their people haven't arrived, yet,
3 we will rearrange things, so that we don't begin
4 Dr. Staudt, until they have the people here.
5 MR. BONEBRAKE: We appreciate that
6 courtesy.
7 MADAM HEARING OFFICER: I think we are
8 ready for Question 14-B.
9 DR. HORNSHAW: Before I go to 14-B, I
10 would like to circle back and add a little bit to the
11 record. The question I responded to on No. 8 that I
12 talked about the publication that I have talking about
13 risks. I forgot to mention that that paper was
14 published while I was a graduate student at Michigan
15 State University, and I would also at this time like to
16 express my appreciation for the work that Dr. Keeler has
17 done. He's done quite well for a University of Michigan
18 guy. I had to do that because he put a sticky note that
19 said "Go Blue" on my Michigan State pen.
20 14-B: "How many total sample results
21 are contained or reflected in this database? Again,
22 this is my database. Currently there are 11,349 entries
23 in this database.
24 MR. BONEBRAKE CONTINUES:
Page37
1 Q. Does that reflect, approximately, 800 fish
2 tissue samples?
3 A. That's 11,349 individual fish samples
4 going back to 1974.
5 Q. Will all of these samples then be on the
6 Storet database, as well, all of that data?
7 A. I believe, yes.
8 DR. HORNSHAW: C: "During what period
9 of time were these results collected?" 1974 through the
10 present.
11 MR. BONEBRAKE CONTINUES:
12 Q. Just a related question, how often is the
13 Storet database updated, Dr. Hornshaw.
14 A. Approximately, the same amount of time as
15 my database is updated. When we receive the results
16 from our laboratory, my secretary enters them into my
17 database, and whoever does the data entry in the Bureau
18 of Water similarly enters it into the Storet database.
19 Q. Multiple times during the course of a
20 year?
21 A. Yes. D: "What information is provided in
22 this database with respect to each sample?" And I have
23 already provided a printout of what's in my database, so
24 you can follow along, if you want. It's the one that
Page38
1 was submitted for Sherman Park Lagoon Wednesday I think
2 it was.
3 MADAM HEARING OFFICER: Exhibit 19.
4 Thank you.
5 DR. HORNSHAW: This database contains
6 station code; sample date; rotation on whether the
7 sample is whole fish or edible fillet; water body name;
8 common F collection; sample location within the water
9 body; number of individual fish in the sample; weight;
10 length; chlordane level; DET level; DL level; PCB level;
11 mercury level and lipid content of the sample. All of
12 the chemical analites (phonetic) also have a box that,
13 if checked, means the chemical was not detected, and the
14 reported value is the detection limit.
15 MR. BONEBRAKE CONTINUES:
16 Q. The station code on this exhibit, does
17 that correspond with the sampling location?
18 A. Yes, it does.
19 Q. So would you have this kind of
20 information, then, for each sampling location in your
21 database?
22 A. The station code?
23 Q. The type of information under each column
24 that you just described on this exhibit.
Page39
1 A. Yes.
2 Q. Would you have that same kind of
3 information in your database with respect to each
4 sampling location?
5 A. Yes, although, in quite a few cases, the
6 entry for fillet or whole has not been checked, and
7 pretty often the sample location within the body is not
8 indicated, especially if it's a lake. E: "Does this
9 database contain all fish contaminant data for the state
10 of Illinois? And Roman one, if not, what data is not
11 included in that database?" Roman two: "How can that
12 data be accessed by the public?" This database does not
13 contain all fish contaminant data for Illinois.
14 Radioactive compounds in fish are determined and
15 maintained by Illinois Emergency Management Agencies. I
16 believe it's the Division of Nuclear Safety, and I do
17 not know how that data may be accessed. Also, U.S. EPA
18 and/or ORSANCO, it's an acronym for Ohio River Water
19 Sanitation Commission (sic), I believe, analyzed fish
20 taken from the Illinois waters of Lake Michigan and the
21 Ohio River, respectively, and these results are
22 available to the public through those agencies.
23 MR. BONEBRAKE CONTINUES:
24 Q. Dr. Hornshaw, do you know if ORSANCO data
Page40
1 is available on Storet?
2 A. Pardon me?
3 Q. Do you know if the ORSANCO I think was --
4 A. ORSANCO.
5 Q. Is that information available on the
6 Storet database?
7 A. I don't think it is.
8 Q. So do you think what database it's
9 available on?
10 A. ORSANCO's database.
11 Q. So is that database maintained by U.S.
12 EPA?
13 A. No. ORSANCO is a water sanitation
14 commission created by Congress specific for the Ohio
15 River.
16 Q. So it manages and maintains its own
17 database?
18 A. Yes, it does.
19 DR. HORNSHAW: F: "What other data.
20 Such as water column or sediment sample data, was
21 contained in this database?" No other data are
22 contained in mine, other than the fish data. G: "Has
23 fish sampling frequency changed over time?" I cannot
24 speak to sampling frequency prior to my involvement with
Page41
1 the Fish Contaminant Monitoring Program beginning in
2 late 1988. In the time I have been involved with the
3 Fish Contaminant Program, it has been the goal to obtain
4 around 400 fish samples per year. However, in 1992,
5 U.S. EPA funding that paid for the analytical costs
6 began to diminish and by 1993, it was gone. Thus, there
7 are fewer samples than normal for 1992, very few samples
8 for 1993, no samples for 1994, and only Lake Michigan
9 samples for 1995. In 1996, the member agencies
10 attempted to secure state funds to resume operation of
11 the Fish Contaminant Program, which included analysis of
12 50 samples from waters with existing consumption
13 advisories with a costs donated by the Illinois EPA
14 laboratory to convince the Legislature that there were
15 still concerns about contaminants in sport fish. As a
16 result state funds were appropriated for fish analyses
17 and beginning in 1997, the Fish Contaminant Program
18 resumed its goal of 400 samples per year. Regarding
19 mercury, I have been told that the almost total lack of
20 samples in the 1970's, to early 1980's time frame that
21 exceeded the Food and Drug Administration action level
22 of one milligram per kilogram, which was used in this
23 time frame by the Fish Program as the level of concern
24 for advisories resulted in curtailing mercury analyses
Page42
1 in the 1984, through 1987, time period to just a few
2 samples.
3 Beginning in 1988, the Agency began
4 collecting water sediment and reduced number of fish
5 samples for mercury analysis in selected water bodies as
6 part of its efforts to update the surface water criteria
7 for mercury. With the resumption of regular sampling
8 efforts in 1997, like I mentioned before, mercury
9 samples we are again collected at the usual rate.
10 MR. BONEBRAKE CONTINUES:
11 Q. Do you have a copy of the Technical
12 Support Document available to you over there,
13 Dr. Hornshaw?
14 MR. KIM: Do you have a page number?
15 MR. BONEBRAKE: Page 61, please. It's
16 the first sentence of Section 4.3.1 that I am interested
17 in.
18 DR. HORNSHAW: I'm on page 61 now.
19 Which part did you say?
20 MR. BONEBRAKE CONTINUES:
21 Q. Section 4.3.1, first sentence.
22 A. Yes.
23 Q. Reads, "There are a total of 815 samples
24 for mercury concentrations in fish tissue," and it goes
Page43
1 on from there. Do you see that?
2 A. Yes.
3 Q. Just a clarification question for you,
4 when we were talking about the number of total samples
5 that were in your database, I think you earlier
6 mentioned it was some number over 11,000?
7 A. Yes.
8 Q. Does this sentence in Section 4.3.1 that I
9 just referred to then mean that, of those more than
10 11,000 samples, 815 of them relate to methylmercury fish
11 tissue levels?
12 A. That's correct.
13 Q. And the remainder relates to sampling for
14 some other compound?
15 A. Yes, compounds.
16 Q. Thank you for that clarification.
17 DR. HORNSHAW: H: "Have the
18 analytical methods for analyzing fish tissue changed
19 over time?" Prior to 1985, any of four laboratories,
20 EPA's, Public Health's; Agriculture, and a contract
21 laboratory were used for fish analyses depending on
22 laboratory demands. I have been told that there were no
23 discrepancies and I believe I discussed these in the
24 previous day, and some of the results between the labs
Page44
1 beginning in 1985 all analyses were done by the IEPA lab
2 or by a contract lab under our supervision. Analytical
3 methods since 1985 have been, basically, unchanged,
4 other than a reduction in the mercury deduction limit
5 from 0.1 milligrams per kilogram to a range of 0.01 to
6 0.03 kilograms beginning in 2004.
7 MR. BONEBRAKE CONTINUES:
8 Q. When you say "Basically unchanged,"
9 Dr. Hornshaw, what do you mean?"
10 A. It means the laboratory has gone through
11 method development, and once that method development has
12 been certified, then they are not going to change it,
13 unless there's a really good reason to change it, and to
14 my knowledge, the only major change that's been done in
15 this time frame has been the reduction in the mercury
16 deduction limits.
17 Q. Again, for purposes of that answer, "this
18 time frame" means, from 1985, to the present?
19 A. That's correct.
20 DR. HORNSHAW: I: "What percentage
21 and number of Illinois waterbodies are and have been
22 subject to; one, fish tissue samples; two, water column
23 samples; and three, sediment sampling?" I can't answer
24 for water column sampling and sediment sampling and I
Page45
1 think I explained before how I can't really quantify
2 fish tissue sampling because ponds and other private
3 waters are not eligible for sampling.
4 Q. I believe we had a conversation about fish
5 tissue sampling earlier in the week.
6 A. Yes.
7 MADAM HEARING OFFICER: Question 15,
8 16 and 17, 18 and 19 and part of 20 have been answered
9 so jump to 20-A.
10 DR. HORNSHAW: 20: "Dr. Hornshaw's
11 testimony on page two refers to "Protocol for Uniform
12 Great Lakes Sport Fish Consumption Advisory," a 1989
13 "memorandum of agreement." Policy determinations
14 adopted by the FCMP over time. With respect to these
15 references, A, the Protocol appears to address
16 appropriate fish advisory levels for PCB's. How is the
17 process and modeling set forth in this document applied
18 to mercury?" It's applied exactly the same way, except
19 there's no assumption of a reduction in levels,
20 contaminant level, in mercury due to cleaning and
21 cooking, and Roman one, "Is there any similar document
22 that, specifically, addresses mercury?" The Great Lakes
23 Fish Advisory Task Force is in the process of adding a
24 mercury addendum to the Great Lakes Protocol. That's
Page46
1 anticipated that will be accepted by all eight Great
2 Lakes states by the end of this year. It's in the final
3 draft form at this point.
4 MR. BONEBRAKE CONTINUES:
5 Q. Do you have a copy of that final draft,
6 Dr. Hornshaw?
7 A. I do.
8 Q. Can we have that added into the record?
9 MR. KIM: We'll have copies made and
10 have it submitted next week, if that's okay.
11 MR. BONEBRAKE: It's hard to know if
12 you're going to have questions without looking at the
13 document.
14 MR. KIM: We can have some copies made
15 right now. It's not that long.
16 MADAM HEARING OFFICER: We can reserve
17 questions on that and continue for now.
18 DR. HORNSHAW: B: "With respect to
19 the policy determinations, Roman one, are they in
20 writing: No. Roman two, "Who makes them?" Fish
21 Contaminant Monitoring Program members discuss whatever
22 issues are important at meetings and vote on whether to
23 accept, as policy, the issues were discussed so as
24 issues come up.
Page47
1 MR. BONEBRAKE CONTINUES:
2 Q. Is there any written record, then, of the
3 manner in which the FCMP drives fish advisory standards?
4 A. Well, what we do is we operate under the
5 Great Lakes Protocol in the old memorandum of
6 understanding. That's the written portion of it. There
7 are sometimes meeting notes written up; sometimes not.
8 You have to understand that the Fish Contaminant
9 Program, other than the funding that pays for laboratory
10 work, is entirely donated from the member agencies'
11 time, and if, for instance, I have time to write meeting
12 notes, I will do that. Most of the time I don't have
13 time. The rest of the members understand this, and they
14 have not pressed me to bring up meeting notes every time
15 we have a meeting.
16 Q. Does that mean, Dr. Hornshaw, that there's
17 no written record of the deliberations and methodology
18 by which the FCMP determined the fish advisories
19 relating to methylmercury?
20 A. At the end -- at the beginning, to the
21 middle of October, we usually have the annual meeting to
22 address updates, new advisories , rescinding advisories,
23 if appropriate, and that's done in order to meet the
24 DNR's printing deadline. They have to have that booklet
Page48
1 that's been entered into the record ready to go to their
2 printers by the end of December, so we have to have all
3 the decisions made, and what I do prior to this annual
4 meeting is print out tables of all the fish data that
5 needs to be considered for that year's advisories. That
6 is given to each of the members, and that's what we base
7 the decisions on.
8 Q. But an answer to my question is there is
9 no written record of the deliberations and methodology
10 by which you determine --
11 A. That's correct, other than whatever notes
12 people jot during the meeting. C: "Are they publicly
13 available? No. C: "The MOA at page G-1 lists action
14 levels for a number of substances, but omits mercury and
15 methylmercury. Why were mercury and methylmercury
16 omitted?"
17 MADAM HEARING OFFICER: For the
18 record, it's the Memorandum of Agreement.
19 MR. BONEBRAKE: It is Exhibit B I
20 believe, if you can confirm that for me, to
21 Dr. Hornshaw's testimony.
22 DR. HORNSHAW: Yes. That's Exhibit B
23 attached to my testimony.
24 MADAM HEARING OFFICER: Thank you.
Page49
1 DR. HORNSHAW: I can't answer that. I
2 had no part in drafting the MOA.
3 MR. BONEBRAKE CONTINUES:
4 Q. Has there been any supplementation or
5 addendum to this MOA to address methylmercury?
6 A. No, there is not. The addendum that we
7 are going to be making an exhibit out of for the Great
8 Lakes Protocol will take the place -- or that will
9 become the mercury Protocol for us, as well, since we
10 are following the Great Lakes Protocol.
11 Q. That addendum relates to the Protocol, as
12 opposed to the MOA. Is that correct?
13 A. That's correct. D: "The MOA sets forth
14 various quality control protocols" -- you answered that.
15 Question 21.
16 DR. HORNSHAW: 231 "At page three of
17 his testimony, Dr. Hornshaw states that the MOA
18 specifies the use of U.S. Food and Drug Administration's
19 arc levels as criteria for determining the need for
20 advisories. However, the process developed in the
21 Protocol has been used to replace the FDA criteria for
22 polychlorinated biphenyls, PCB's, mercury and chlordane.
23 The Protocol determines a health protection value, HPV,
24 for a contaminant, which is then used with five assuming
Page50
1 meal frequencies: unlimited, or 225 meals per year; one
2 meal per week, or 52 meals per year; one meal per month,
3 or 12 meals per year; one meal every two months, or six
4 meals per year; and do not eat, zero meals per year. To
5 calculate the level of contamination in fish that will
6 not result in exceeding the HPV at each meal frequency.
7 With respect to these statements, A, the MOA contains no
8 action level for mercury or methylmercury. What
9 process, if any, was used to determine fish advisory
10 levels for mercury or methylmercury prior to the 1993
11 Protocol?" The FDA action level was originally used as
12 -- I think I have mentioned from the beginning of the
13 Fish Contaminant Program -- and this was changed by the
14 Department of Public Health in the late 1980's, as I
15 think I have already also mentioned. B: "This
16 testimony indicates that the HPV is for "mercury." Is
17 the HPV used for fish advisory related to mercury or
18 methylmercury?" Methylmercury. "What is the HPV for
19 mercury or methylmercury?" As I testified about 20
20 times now, 0.0001 milligrams per kilogram per day. D:
21 "The Protocol, specifically, addresses PCB's, but does
22 not appear to expressly set a process to determine the
23 HPV for mercury. How does the State of Illinois
24 determine the HPV for mercury or methylmercury as the
Page51
1 case may be?" As I mentioned before, we have adopted
2 the FDA U.S. reference dose as the HPV and I think it's
3 also discussed in the addendum that we are making an
4 exhibit out of. E: "What quantity of fish comprises a
5 meal for purposes of fish advisories?" Eight ounces of
6 uncooked fillet. Roman one, "What is the basis for that
7 quantity?" The Great Lakes Protocol. F --
8 MR. BONEBRAKE CONTINUES:
9 Q. Dr. Hornshaw, you mentioned that the basis
10 for the meal quantity was the Protocol.
11 A. Yes.
12 Q. What was the basis upon which the Protocol
13 arrived at that number?
14 A. That was an assumption that members of the
15 Great Lakes Fish Advisory Task Force agreed was an
16 appropriate meal size for an average meal.
17 Q. What was the basis of that assumption?
18 A. Common experience, probably. I couldn't
19 answer that accurately. If we were to use my fish
20 consumption, it would have been slightly larger.
21 Q. Do you know if the U.S. EPA has an assumed
22 fish meal quantity as determined as an assumed fish meal
23 quantity?
24 A. What do you mean by "quantity"?
Page52
1 Q. Well, eight ounces.
2 A. Eight ounces?
3 Q. Yes.
4 A. I'm pretty sure, for the joint EPA/FDA
5 fish advisory, they assumed six ounces of cooked fish,
6 which is, roughly, equivalent eight to ounces of raw
7 fish.
8 Q. So you view the Illinois state standard
9 and the U.S. EPA/FDA standard to be roughly equivalent?
10 A. Roughly equivalent.
11 DR. HORNSHAW: I think I just answered
12 F. 22: "In the bottom paragraph, on page 3, the
13 testimony asserts that `HPV's currently used by the Fish
14 Contaminant Monitoring Program for methylmercury are
15 derived from U.S. EPA criteria.' A, please describe
16 this derivation." Again, adopted the reference dose
17 from the EPA. B: "This paragraph indicates that the
18 Agency uses the U.S. EPA's RfD to determine the
19 applicable HPV. Does the Agency agree that U.S. EPA's
20 RfD is protective of human health?" Yes. C: "Table
21 4.3 at page 58 of the TSD appears to list various fish
22 advisory levels in Illinois. What is the quantity of a
23 fish meal assumed in this table?" Again, eight ounces
24 uncooked. "What is the basis for that quantity?" Again,
Page53
1 Great Lakes Protocol. D: "Does U.S. EPA use a
2 different quantity of assumed consumption for each meal
3 to identify a fish advisory level of 0.3 parts per
4 million?" Again, six ounces of cooked fish. E: "Table
5 4.3 assumes an HPV of --
6 MR. BONEBRAKE CONTINUES:
7 Q. Dr. Hornshaw, Question D referred to a
8 U.S. EPA fish advisory level of .3 parts per million.
9 Are you familiar with that advisory level?
10 A. Roughly, yes.
11 Q. Is it your understanding that that is, in
12 fact, U.S. EPA's current fish advisory level?
13 A. I'm pretty sure that's what it is, yes,
14 six ounces of uncooked fish, you know, cooked fish,
15 sorry.
16 Q. That level of .3 parts per million, is
17 that less stringent than the fish advisories currently
18 in place in Illinois?
19 A. It depends on what the assumed meal
20 frequency is. If we assume that meal frequency is
21 unlimited, then we're talking about 25 meals per year of
22 concentrations not to exceed .05 parts per million. I'm
23 not sure exactly what the .3 parts per million value is
24 supposed to protect as far as meal frequency goes, so
Page54
1 that's the best I can answer.
2 Q. So you don't know if the .3 part per
3 million standard is associated with a number of meals
4 over a given period of time?
5 A. I would prefer to read what the
6 description of how that was developed by U.S. EPA before
7 I answer that, and I have tried to find that. It's hard
8 to find.
9 Q. That's one of the reasons I was asking the
10 question.
11 DR. HORNSHAW: Roman I think E, "Table
12 4.3 assumes an HPV of 0.1 micrograms per kilogram per
13 day for sensitive populations and 0.3 micrograms per
14 kilogram per day for other populations. Roman one:
15 Does the 0.1 microgram per kilogram per day HPV
16 correspond to methylmercury?" Yes. Roman 2: "How is
17 the 0.3 microgram per kilogram day standard derived?
18 This was developed from the previous reference dose that
19 U.S. EPA had and subsequently withdrawn when they
20 changed the new reference dose of 0.1 microgram per
21 kilogram per day. The old reference dose was based on
22 effects on adults, so we considered that to be
23 appropriate for the nonsensitive population. F: "Do
24 other federal and state agencies use and publish
Page55
1 different HPV's or reference doses?" I believe I have
2 spoken before for the Great Lakes states that they all
3 use the same one, and I can't answer for other states or
4 other federal Agencies. G: "Are any of those HPV's or
5 reference doses less stringent?" Again, I can answer
6 for all Great Lakes. It's all the same. 23: "Has the
7 state issued a fish advisory based on the presence of
8 PCB's in fish tissue?" Yes, and those are listed in the
9 PCB and chlordane advisories that are in the exhibit
10 from DNR."
11 MR. BONEBRAKE: The green booklet,
12 Dr. Hornshaw?
13 MADAM HEARING OFFICER: Exhibit No.
14 11.
15 DR. HORNSHAW: Yes, Illinois fishing
16 information. A: "If so, what is the basis of that?
17 Fish Advisory Great Lakes Protocol. B: "What
18 waterbodies are covered by that advisory." Again, the
19 information that is in the DNR booklet. 24: "When was
20 the general statewide mercury fish advisory issued in
21 Illinois?" 2002. A: "Is it correct that the statewide
22 mercury fish advisory does not mean that all sampled
23 fish are above mercury fish advisory levels?" Yes. 25:
24 "Dr. Hornshaw's testimony at page threes state that, `In
Page56
1 the past, the FCMP relied on a criteria for mercury and
2 sport fish of 0.5 milligrams per kilogram developed by
3 the Illinois Department of Public Health with samples
4 exceeding the criterion given do not eat advice and
5 samples below the criterion placed in the unlimited
6 category.' A: When did specific fish advisories move
7 from these two categories to the five categories set for
8 in Table 4.3 in the Agency's TSD?" 2002. B: "Why were
9 the two categories moved to the five categories?" So
10 that the procedures that we adopt would be consistent
11 with the Great Lakes Protocol, which requires five
12 categories of consumption advisory. 26: "If mercury
13 levels in fish tissue were reduced below the current
14 Illinois mercury fish advisory levels for mercury, would
15 all of the fish advisories in the state of Illinois be
16 lifted?" Only those for mercury. A: "If not, why
17 not?" B --
18 MR. BONEBRAKE CONTINUES:
19 Q. Your answer I believe Dr. Hornshaw assumed
20 that the advisory for mercury would be lifted.
21 A. Yes, if all the fish levels drop below .06
22 milligrams per kilogram.
23 Q. Do you happen to know -- I will hold that
24 question for later. Go ahead.
Page57
1 DR. HORNSHAW: "If not, why not?" And
2 B: "Which waters would remain subject to fish
3 advisories?" All those waters that are on advisory for
4 PCB's and chlordane. 27: "Does the Agency agree that
5 exposure to methylmercury through fish consumption can
6 be reduced significantly by eating younger, smaller fish
7 and by trimming fat from fish before cooking?" Yes for
8 younger and smaller fish; no for trimming because
9 mercury resides in muscle tissue, for the most part, and
10 not fat, and fat is what is eliminated by cooking and
11 trimming.
12 MR. BONEBRAKE CONTINUES:
13 Q. Just to follow-up, other than eating
14 younger or smaller fish, are you aware of other ways,
15 Dr. Hornshaw, in which those who catch fish can reduce
16 the methylmercury consumption in fish containing
17 methylmercury that they catch?
18 A. Yes, eating nonpredator fish.
19 Q. Which fish in Illinois are nonpredator
20 fish, and here I limit my question to the fish that are
21 commonly caught by fisherman?
22 A. Carp, catfish other than flathead catfish;
23 most of the pan fish, other than the white bass family,
24 suckers. I'm not sure many suckers are caught in
Page58
1 Illinois. I know some are.
2 MS. MOORE: There's a lot of suckers
3 out there.
4 DR. HORNSHAW: I was not willing to go
5 there, but thank you.
6 MR. BONEBRAKE CONTINUES:
7 Q. When we talk about younger, smaller fish,
8 is there a rule of thumb with respect to young -- the
9 age of the fish or the size of the fish that are safer
10 to eat?
11 A. That's pretty species specific. Young
12 bass would be in the range of, for instance, 12 to 15
13 inches, whereas young walleye would probably be in the
14 range of 14 to 18 inches.
15 Q. Is that information contained in the fish
16 advisory?
17 A. No. It's just general information.
18 Q. Do you know if the Illinois Environmental
19 Protection Agency, the Department of Health, or other
20 Illinois state agencies, provide information to Illinois
21 residents about means to avoid consumption of fish with
22 higher methylmercury levels?
23 A. Well, for instance, the Department of
24 Public Health has a website listing the state fish
Page59
1 advisories, so that's one way that the information is
2 given out, and of course, there's all the information in
3 the DNR booklet. There's, also, at the beginning of the
4 fishing season, late February, early March, Department
5 of Public Health issues a statewide press release
6 listing the updating of the annual updating of the
7 advisories.
8 Q. So if a member of the public is interested
9 in identifying fish that have the potential to create a
10 consumption risk for them, there's public information
11 upon which they can base those kinds of decisions,
12 Dr. Hornshaw?
13 A. Yes.
14 MR. KIM: Before we go further, I have
15 the copies of the draft Protocol for mercury-based fish
16 consumption advisory that was referred to earlier.
17 MADAM HEARING OFFICER: We will mark
18 this as Exhibit 33, if there's no objection. Seeing
19 none, it's marked as Exhibit 33. And you know what?
20 Why don't we take about five minutes, so you can look
21 this over and see if you have any questions.
22 (Exhibit No. 33 was admitted.)
23 (A small break was taken.
24 MADAM HEARING OFFICER: Mr. Bonebrake.
Page60
1 MR. BONEBRAKE CONTINUES:
2 Q. Dr. Hornshaw, I had a very brief
3 opportunity to take a look at Exhibit No. 33, and have
4 not had a full chance to review it, but I did have a
5 couple of questions for you regarding Exhibit 33. Does
6 the addendum reflect current practice or is it your
7 anticipation that this is going to be instituting some
8 new practices in fish advisories for the FCMP?
9 A. As I stated before, the Fish Contaminant
10 Program is going to be changing to an upper limit of one
11 milligram per kilogram to be consistent with the FDA
12 action level, so what is in the Technical Support
13 Document now, as far as the different concentration
14 ranges for the meal frequencies, that will all change.
15 We will only have one meal per week, one meal per month
16 and do-not-eat for mercury.
17 Q. And if you've got a copy of Exhibit 33
18 handy, page 13 of that exhibit, Dr. Hornshaw. There's a
19 table in the middle of that page that reflects the new
20 standards that you were just referencing.
21 A. That's correct, although we're probably
22 not going to use the two meals per week category. That
23 is an option that the states have, especially for states
24 that are going to be incorporating FDA's advice to eat
Page61
1 two meals per week. All kinds of fish or for states
2 that are going to be addressing commercial fish species
3 with their sport fish advisories Illinois will not be,
4 at least the last time I talked with Department of
5 Public Health.
6 Q. And the numbers that are on the table in
7 page 13 will they apply to all members of the
8 population?
9 A. No. These value are for the sensitive
10 part of the population, women of childbearing age,
11 particularly. And I might add the value for no
12 consumption is listed in this table at greater than 9.5.
13 for Illinois, it will be greater than 1.0. like I said,
14 we are going to be using the FDA action level as the
15 upper limit.
16 Q. I guess what I'm not clear on is the
17 current fish advisory for the nonsensitive population,
18 is that going to change, as well?
19 A. That's one of the things we will have on
20 the agenda for discussion when we have the annual update
21 meeting.
22 Q. As I have an opportunity to read this
23 Exhibit, Dr. Hornshaw, a little more carefully, after
24 the proceeding today, is there any -- do you know of any
Page62
1 changes that are necessary to this document at this
2 point in time?
3 A. To make it --
4 Q. Either changes that you, or others, have
5 identified need to be made, or that you understand
6 otherwise will be made to this document?
7 A. None that I'm aware of. It's my
8 understanding that all of the Great Lakes states have
9 pretty much agreed to what's in here, and it's just a
10 matter of -- actually, it's a matter of Dr. Henry
11 Anderson in Wisconsin wrapping up the U.S. EPA grant
12 that was behind all of this, and he issues his final
13 report to U.S. EPA. Then I think this will be
14 finalized, as well.
15 Q. So it's your expectation that this draft
16 will be final by the end of 2006?
17 A. Yes.
18 MR. HARLEY CONTINUES:
19 Q. Dr. Hornshaw, could you please repeat the
20 age at which children are regarded to be a susceptible
21 population, what age that was?
22 A. For the Illinois Advisory Program, it's
23 children under 15.
24 Q. And could you remind us again at what age
Page63
1 children can fish without obtaining a fishing license?
2 A. I'm not entirely sure on that. I think
3 it's either 16 or 17.
4 Q. So in other words, a member of a
5 susceptible population would be able to fish in an
6 unlimited fashion in Illinois without ever coming into
7 contact with any state agency?
8 A. That's correct.
9 Q. Thank you.
10 CROSS EXAMINATION BY DR. GIRARD:
11 Q. I have a clarifying question. You said
12 Illinois may decide to drop out some of these meal
13 frequency categories and you talked about the
14 two-meal-per-week category. Looking at page 13, of
15 Exhibit 33, then, how would Illinois change the fish
16 mercury concentration ranges then?
17 A. We'll still use what's in the technical
18 Support Document up to .05 milligrams per kilogram will
19 still be unlimited. .06 to .22 parts per million will be
20 one meal per week and .23 to 1.0 will be one meal per
21 month. Above 1.0 will be do not eat.
22 MR. BONEBRAKE CONTINUES:
23 Q. Just a related question, is it your
24 understanding, Dr. Hornshaw, that after this addendum is
Page64
1 finalized, that the fish tissue mercury levels that will
2 be used to identify impaired waters will remain at
3 greater than .05 parts per million?
4 A. That's correct.
5 DR. HORNSHAW: I believe we are on
6 question 28: "Is it correct that the Illinois
7 Department of Public Health continues to recommend that
8 Illinois residents eat fish?" Yes. 29: "With respect
9 to nonanglers living in Illinois, what percentage of
10 their fish intake is comprised of fish from waters
11 outside of the state of Illinois, including the oceans?"
12 There's no way to answer this question since fish
13 consumption survey data are not available for Illinois
14 anglers or nonanglers, and I will note that I believe
15 this response also answers Prairie State's Question No.
16 2. 30: "Is it correct --
17 MADAM HEARING OFFICER: They do go on
18 and ask -- Prairie State -- whether national surveys of
19 fish consumption, are they relevant to Illinois anglers?
20 Are there no national surveys at all?
21 DR. HORNSHAW: Yes. There's lots of
22 that information in my testimony and in the Technical
23 Support Document. There are national surveys of the
24 general population, as well as surveys of people who
Page65
1 admit to eating fish, and people who are anglers that
2 have been surveyed.
3 MADAM HEARING OFFICER: Thank you. I
4 just wanted to make sure.
5 MR. BONEBRAKE: In fact, I think we
6 have some questions later on about some of the materials
7 sited by Mr. Hornshaw.
8 DR. HORNSHAW: 30: "Is it correct
9 that U.S. EPA has developed a fish advisory criterion of
10 0.3 parts per million based on its current reference
11 dose, an assumed body weight of 70 kilograms, and
12 assumed fish consumption of about 17.5 grams per day?"
13 Yes.
14 MR. BONEBRAKE CONTINUES:
15 Q. Do Illinois fish advisories assume a
16 certain level of fish consumption per day?
17 A. Yes.
18 Q. What is that number?
19 A. It varies with the meal frequency that we
20 assume. If you look at -- if you look in Draft Mercury
21 Addendum that we just entered into the record.
22 MADAM HEARING OFFICER: Exhibit 33.
23 DR. HORNSHAW: If you look at the
24 discussion under -- starting on page 11, under B,
Page66
1 "Calculation of maximum daily mercury ingestion when
2 following the advisory," and this also answers a
3 question asked of me of how these things were derived.
4 There's an example calculation, and it lists the number
5 of grams per day that goes into the calculation of each
6 of the advisory level range for the assumed meal
7 frequencies that we use in the Fish Contaminant Program.
8 MR. BONEBRAKE CONTINUES:
9 Q. So for instance, the assumed fish
10 consumption level associated with the unrestricted
11 consumption advisory is 140 grams of fish per day?
12 A. That's correct.
13 Q. And that number is I guess, at least,
14 seven times higher than U.S. EPA's assumed fish
15 consumption level. Is that right?
16 A. Yes.
17 Q. How is the 140 grams of fish per day
18 derived?
19 A. Just as it's shown in here. 225 meals per
20 year is equivalent to 18.75 grams per month, and that's
21 equivalent to 140 grams of fish per day.
22 Q. And what was --
23 A. I'm sorry, 18.75 meals per month, I'm
24 sorry.
Page67
1 Q. What was the eight-ounce fish meal size
2 used in that calculation?
3 A. Right. 227 grams is eight ounces.
4 Q. Do you know, Dr. Hornshaw, why U.S. EPA's
5 fish consumption per day number is so much lower?
6 A. No, I don't.
7 DR. HORNSHAW: 31: "Does the Agency
8 contend that adoption of the Illinois Mercury Rule
9 Proposal will result in fewer fish and sea fish advisory
10 standards than if only CAMR is implemented in Illinois?"
11 Yes. A: "How many fewer fish will exceed the fish
12 advisory standard?" I don't believe there's any way of
13 calculating that. B: "Please explain the basis for
14 your answers." The Agency believes that the results
15 from Florida and Massachusetts described in Marcia
16 Willhite's testimony shows that reductions in mercury
17 deposition result in reductions in fish tissue mercury.
18 Since the Agency believes that this rule will result in
19 greater reductions in mercury deposition than would be
20 achieved by CAMR, we contend that adoption of this rule
21 will result in fewer fish exceeding mercury levels of
22 concern than if CAMR were implemented.
23 MR. BONEBRAKE CONTINUES:
24 Q. Dr. Hornshaw, in answering that question,
Page68
1 are you relying solely on Ms. Willhite's testimony?
2 A. Yes. I don't know anything about
3 deposition.
4 Q. So you're offering no independent view
5 with respect to the answer to that question?
6 A. That's correct.
7 DR. HORNSHAW: 32: "In his testimony,
8 at page 4, Dr. Hornshaw refers to a study by NFCS noting
9 that the study found that the rate of fish consumption
10 in the general population of the NFCS study was `12
11 grams per day, 19 meals per year.' He refers to another
12 of only female consumers using data from the NFCS study
13 and a U.S. D A study. Of the reported average number of
14 meals per week, how many of the meals were of motion
15 fish, or shellfish, as compared to freshwater fish or
16 shellfish?" I can't say. The data on studies are for
17 all fish and shellfish combined.
18 MR. BONEBRAKE CONTINUES:
19 Q. The 12 grams per day number is less than a
20 tenth of the 140 gram per day number that we just
21 discussed with respect to the addendum, which is Exhibit
22 33, Dr. Hornshaw?
23 A. Yes.
24 Q. Does that indicate to you that the
Page69
1 unrestricted consumption fish advisory is very
2 conservative with respect to the assumed level of fish
3 consumption in the Illinois population?
4 A. Yes. It was actually intended to be -- in
5 the Great Lakes Protocol, 140 grams per day was chosen
6 to account for high-end fish consumption, either by
7 subsistence fisherman, or by avid anglers.
8 Q. And my metric conversions are not great,
9 so can you tell us, approximately, how many ounces
10 correspond to 140 grams?
11 A. My metric is just as bad as yours.
12 MR. ZABEL: I make no claims to mine,
13 Dr. Hornshaw, but I think it's less than half an ounce.
14 DR. HORNSHAW: 227 grams is eight
15 ounces, so 140 is --
16 MADAM HEARING OFFICER: About five
17 ounces.
18 MR. BONEBRAKE CONTINUES: Four to five
19 ounces sound about right to you, Dr. Hornshaw?
20 DR. HORNSHAW: Yes. "At page five of
21 his testimony, Dr. Hornshaw refers to fish consumption
22 studies in California and Michigan of anglers. A,
23 please explain why these studies are relevant to
24 Illinois anglers." These studies are relevant to
Page70
1 Illinois anglers because they are studies of fish
2 consumption by anglers, rather than by the general
3 public. B: "Is there any reason to believe that
4 Illinois anglers may have different consumption
5 patterns?" There's no reason to believe that Illinois
6 anglers may have different consumption patterns than
7 anglers from California or Michigan.
8 MR. BONEBRAKE CONTINUES:
9 Q. Do you know, Dr. Hornshaw, that the
10 California study that you cite involved primarily the
11 consumption of ocean fish?
12 A. That's correct.
13 Q. Are you aware of any studies or analysis
14 concerning whether individuals eat greater quantities of
15 motion fish, as opposed to freshwater fish or whether
16 there's an inverse relationship?
17 A. I'm not really conversant with that, no.
18 Q. Are you aware of any studies that address
19 the question of how often anglers eat what they catch?
20 A. Well, that's, basically, the premise of
21 the California and Michigan studies is to try and
22 determine people who admit to fishing, how much they
23 actually eat of their catch.
24 Q. Are you aware of a Wisconsin study that
Page71
1 addresses the levels of hair mercury levels between
2 women who fish and those who do not?
3 A. No, I'm not.
4 Q. Do you know if U.S. EPA has determined
5 average fish consumption rates in connection with its
6 CAMR rule in reconsideration?
7 A. I don't know anything about the CAMR rule.
8 Q. Do you know what the CAMR rule is?
9 A. It's the rule that U.S. EPA has directed
10 the states to implement, I believe. Like I said, I
11 don't know much of anything about the CAMR rule.
12 Q. Have you read any of the supporting
13 materials of U.S. EPA relating to the CAMR rule?
14 A. No, I have not.
15 Q. So you don't know if U.S. EPA has
16 determined an average fish consumption rate of eight
17 grams per day in connection with the CAMR rule?
18 A. I do not.
19 Q. Are you familiar with fish consumption
20 studies in Maine or with respect to Lake Ontario?
21 A. No, I'm not.
22 DR. HORNSHAW: C: "Why hasn't
23 Illinois collected the same type of information?" I
24 have no way of answering that. I could guess that it
Page72
1 may be a funding problem.
2 MR. BONEBRAKE CONTINUES:
3 Q. Have you ever asked, Dr. Hornshaw, anyone
4 within the Agency about conducting such a survey or
5 otherwise collecting such information?
6 A. Typically, that would not be my Agency
7 that would do that kind of stuff. That would be, either
8 Department of Natural Resources, Illinois Natural
9 History Survey, or possibly Illinois Department of
10 Public Health. We don't do very many surveys of any
11 kind.
12 Q. Do you know if the Illinois Environmental
13 Protection Agency has discussed such a survey with any
14 other state agency within the state of Illinois?
15 A. Not that I'm aware of.
16 DR. HORNSHAW: D: "Are there any
17 subsistence fishermen in Illinois?" There is no reason
18 to believe that Illinois would be different than any
19 other jurisdiction in not having subsistence anglers.
20 As I said, a statement shows 225 meals per year or 140
21 grams per day from literature reports of high-end fish
22 consumption as the most appropriate value for the
23 unlimited consumption advisory category in order to
24 account for high end consumption by either subsistence
Page73
1 anglers or avid sports fisherman.
2 MR. BONEBRAKE CONTINUES:
3 Q. Dr. Hornshaw, are you aware of any
4 information that, in fact, establishes the presence of
5 subsistence fishermen in Illinois?
6 A. Without mentioning names, other than
7 myself -- I'm kidding about that part. The Agency
8 received an inquiry from an individual who holds a
9 commercial fishing license and sets nets in the
10 Kaskaskia River below Carlyle Lake and in Carlyle Lake,
11 specifically, targets catfish, especially flathead
12 catfish. This individual, when he became aware of our
13 advisories for predator fish, had one of his 11-pound
14 flathead catfish analyzed by a commercial laboratory and
15 found .38 parts per million in that flathead catfish.
16 This individual also told me, in several discussions,
17 that he was very concerned by the levels of mercury
18 because he and his friends eat ungodly amounts of
19 catfish each year, so yes, I, personally, know one,
20 plus, subsistence fisherman by talking to this person on
21 the phone many times.
22 Q. And with that exception, are you aware of
23 any other evidence of subsistence fishermen in Illinois?
24 A. Not directly, no.
Page74
1 MR. HARLEY CONTINUES:
2 Q. Are mercury fish advisories posted at
3 fishable waterways of the state.
4 A. No, they are not.
5 Q. Are mercury fish advisories given to every
6 licensed fisherman -- fisherperson -- in the state of
7 Illinois?
8 A. Not really. The DNR information booklet
9 is available where licenses are sold, and whether the
10 vendor gives out the booklet or not, I can't answer.
11 They are supposed to.
12 Q. Is complying with the fish consumption
13 advisory a condition of maintaining a fishing license in
14 the state of Illinois?
15 A. Absolutely not.
16 Q. Are mercury fish advisories given to
17 consumers of fish that are caught in Illinois who may
18 not have actually caught the fish? For example, members
19 of families, people who are eating at restaurants.
20 A. Not directly. The Department of Public
21 Health has set up some outreach programs. For instance,
22 they try to make fish consumption information available
23 at WIC clinics and pediatricians offices, for instance.
24 I don't know how successful that is.
Page75
1 Q. Are mercury fish advisories directed to
2 unlicensed anglers, like children, who are part of
3 susceptible population by the State of Illinois?
4 A. No.
5 MR. ZABEL CONTINUES:
6 Q. Would your friend at Lake Carlyle be
7 considered in the insensitive population?
8 A. Yes.
9 Q. Are you a fisherman, Doctor?
10 A. Yes.
11 Q. Have you ever caught a largemouth bass?
12 A. Several.
13 Q. Did you eat it?
14 A. Of course.
15 Q. Thank you.
16 A. Not anymore. I've discovered perch and
17 crappy are much better.
18 Q. But if you were to catch a largemouth
19 bass, would you --
20 A. I would probably throw it back.
21 Q. I like crappy myself.
22 A. I should probably throw walleye into that
23 conversation, too, and trout.
24 Q. Is that because you prefer the others to
Page76
1 eat?
2 A. Absolutely.
3 MR. BONEBRAKE CONTINUES:
4 Q. When the studies address subsistence
5 fisherman are the subsistence fishermen typically
6 addressed native Americans?
7 A. Not in Illinois.
8 Q. There are no reservations -- Indian
9 American reservations in the state of Illinois. Is that
10 right?
11 A. That's correct. I think we are at No. 34.
12 "At page five of his testimony, Dr. Hornshaw states that
13 the review of fish consumption literature provides
14 convincing evidence that sport anglers may consume
15 amounts of sport-caught fish that could allow them and
16 their families to exceed health-based limits for
17 chemical contaminants in their catch. With respect to
18 this statement, A, is this conclusion based on the
19 presence of different kinds of contaminants in fish,
20 including PCB's?" Yes. This is just a general
21 statement. B: "Does the Agency agree that exceeding
22 any such limit may, but will not necessarily, cause a
23 health impact?" Yes. 35: "Is it correct that, at
24 least, some other states have less rigorous fish
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1 advisory action levels?
2 MR. BONEBRAKE CONTINUES:
3 Q. You are moving quickly, and I know we are
4 getting to the pointed hour for you, but I did have a
5 couple follow-ups with respect to 34. Do you know,
6 Dr. Hornshaw, what portion, if any, of any exceedence of
7 the methylmercury fish advisory standards in Illinois is
8 attributable to mercury arising from the emissions of
9 electric generating units?
10 A. I have no way of answering that.
11 Q. I had a related question for you, and if
12 we can take a look at Exhibit 31 it was earlier entered
13 into the record, and it is a copy of a federal
14 registered document, one of the reconsideration
15 documents, 40-CFR, first page 33388, and it was
16 published June 9, 2006.
17 A. I have been given a copy.
18 Q. If you could turn with me to page 33392,
19 please.
20 A. Okay.
21 Q. I would direct your attention to the far
22 right column in the paragraph starting, "As these IDI
23 tables show." Do you see that, Dr. Hornshaw?
24 A. Yes.
Page78
1 Q. You drop down about halfway in that
2 paragraph, you will see the sentence starting with
3 "Finally"?
4 MADAM HEARING OFFICER: 33392.
5 DR. HORNSHAW: Yes.
6 MR. BONEBRAKE CONTINUES:
7 Q. Far right hand column. That sentence
8 reads, "Finally, only when eating solely freshwater fish
9 from the 99th percentile for fish tissue utility
10 attributable MEHG do the 99th percentile recreational
11 fisher and native American subsistence fisher show IDI's
12 above one." Do you see that?
13 A. Yes.
14 Q. And his "MEHG" is that methylmercury?
15 A. Yes.
16 Q. Do you know what an "IDI" is?
17 A. No. You will have to tell me what that
18 acronym stands for.
19 Q. At the bottom of the middle column on that
20 same page, there's a sentence that starts at the very
21 bottom of that column, "An IDI of less than one is equal
22 to a utility attributable exposure lower than the RfD."
23 Do you see that?
24 A. Okay.
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1 Q. And then a little above that reference,
2 again, in the middle column, you will see the Index of
3 Daily Intake, as referred to as the IDA. Again, the
4 middle column about 10 lines up.
5 A. Okay.
6 Q. Referring back do the sentence that begins
7 with "Finally," have you ever seen this document before,
8 Dr. Hornshaw?
9 A. No, I have not.
10 Q. So do you know if it's true, then, that
11 only those eating solely freshwater fresh from the 99th
12 percentile for fish tissue utility attributable
13 methylmercury at the 99th percentile of recreational
14 fisherman in native Americans exceeds the U.S. EPA's
15 reference dose?
16 A. I have no way of commenting. It looks
17 okay, I guess. I don't know.
18 Q. You don't know, one way or another, if
19 that's a correct statement?
20 A. I hate to take this out of context and
21 just say yes.
22 Q. Do you know if Illinois -- if Illinois
23 fisherman, other than the one individual that you have
24 already mentioned to us, are in the 99th percentile for
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1 fish consumption among United States fisherman?
2 A. This one individual may be in that top
3 percentile. I couldn't speak for others.
4 MR. HARLEY CONTINUES:
5 Q. Are you familiar with children age 15 and
6 younger who fish.
7 A. In general, yes.
8 Q. Have you, or any of the commissions or
9 agencies on which you participated, ever estimated the
10 total number of children within that susceptible range
11 of age 15 or less who may be fishing in Illinois
12 waterbodies?
13 A. I have no way of answering that.
14 DR. HORNSHAW: 35: "Is it correct
15 that, at least, some other states have less rigorous
16 fish advisory action levels than the 0.05 parts per
17 million unlimited fish consumption level in Illinois,
18 including machine Minnesota and Texas?" I can't answer
19 for Texas. The mercury advisory issued by Minnesota are
20 based on the same criteria used by the SEMP (phonetic)
21 and are actually a bit more rigorous than Illinois
22 advisories in some instances. I have an exhibit from
23 the Michigan -- I'm sorry, Minnesota Department of
24 Health website that gives information on their fish
Page81
1 advisories for mercury, and I believe you can make an
2 exhibit out of this. And what I'm going to be passing
3 out is current as of whenever the mercury addendum is
4 formally adopted and just about everybody will be using
5 the same criteria, but for now, this is what Minnesota
6 is doing I believe.
7 MS. BASSI CONTINUES:
8 Q. I'm sorry. Did you say this is -- what
9 you're handing out is what Minnesota is doing now or
10 what it will do?
11 A. It's what's on its website now, but it's
12 subject to change whenever the addendum that we just
13 made an exhibit out of is finalized.
14 MADAM HEARING OFFICER: Exhibit 33,
15 the draft to that addendum.
16 DR. HORNSHAW: The draft protocol,
17 yes.
18 MADAM HEARING OFFICER: If there's no
19 objection, we will mark this as Exhibit 34. Seeing
20 none, it is exhibit 34.
21 (Exhibit 34 was admitted.)
22 MR. BONEBRAKE CONTINUES:
23 Q. Dr. Hornshaw, are you familiar with either
24 the fish advisories of either Florida or Mississippi?
Page82
1 A. No. I'm only familiar with the Great
2 Lakes states because that's the states I deal with in
3 the Great Lakes Fish Advisory Task Force. I'm a little
4 familiar with Iowa and Missouri because we share a
5 border, even less with Kentucky. Do you want me to go
6 ahead with the statement to answer this one, then?
7 Q. Sure.
8 A. There are three minor differences between
9 Minnesota and Illinois levels of concern. Minnesota
10 rounds their values to one significant figure, whereas
11 the Fish Contaminant Monitoring Program uses two
12 significant figures. Minnesota recommends no
13 consumption of women of childbearing age and children
14 under 15 for fish above the action level of 1.0
15 milligrams per kilogram. And I said previously that we
16 are going to be doing that, as well. Minnesota
17 recommends no consumption by women beyond childbearing
18 age and men over 15 above 2.8 milligrams per kilogram,
19 whereas the Fish Contaminant Monitoring Program makes
20 this recommendation above 5.62 milligrams per kilogram.
21 MR. BONEBRAKE CONTINUES:
22 Q. So Minnesota, essentially, for sensitive
23 populations has adopted already the revised standard
24 that is in the addendum that we discussed earlier.
Page83
1 A. Other than the rounding that I mentioned.
2 The addendum has two significant figures, and currently,
3 Minnesota uses one.
4 Q. And did Minnesota adopt that as a revised
5 standard in the last couple of years? Do you know,
6 Dr. Hornshaw?
7 A. What's currently on here now?
8 Q. Correct.
9 A. I believe so, yes.
10 DR. HORNSHAW: "Is it correct that the
11 average fish tissue mercury level in Illinois is lower
12 than the average fish tissue mercury level in, at least,
13 75 percent of the other states?" I have no way of
14 answering this question. I might guess that we have
15 less mercury than the northern tier states, again,
16 talking with my colleagues within the Great Lakes Fish
17 Advisory Task Force, but that's about the best I can do.
18 MR. BONEBRAKE CONTINUES:
19 Q. When you say "the northern tier of
20 states," what states are you referring to?
21 A. Minnesota, Wisconsin and Michigan, within
22 the Great Lakes states.
23 Q. And your understanding is that average
24 fish tissue levels in Illinois would be below the
Page84
1 average fish tissue levels in those three states?
2 A. Based on discussions I have had with them
3 and based on the fact that we have our advice for
4 predators and they have their advice for predators and
5 other fish, as well, which indicates to me that there's
6 mercury in their fish than there is in ours.
7 Q. Do you know if U.S. EPA has done a
8 comparative study of fish tissue mercury levels among
9 the various states?
10 A. I'm not aware of that, no.
11 Q. So you have never seen such a study,
12 Dr. Hornshaw?
13 A. No, I haven't.
14 MR. ZABEL CONTINUES: I believe you
15 have indicated you are a fisherman. Is that correct.
16 A. I try.
17 Q. I believe you indicated you are going
18 fishing next week. Is that correct?
19 A. Let's put it this way, I spend too much
20 money chasing fish.
21 Q. Are you going next week?
22 A. Leaving tomorrow morning, yes.
23 Q. Where are you going?
24 A. Kinewa (phonetic) Peninsula in Michigan's
Page85
1 upper peninsula. I'm not going to be more specific, in
2 case somebody wants to chase me down.
3 Q. I've never know a fisherman who didn't
4 protect his favorite fishing holes, but why are you
5 going to Michigan?
6 A. Intensive fish sampling effort.
7 Q. With a line, I assume?
8 A. Yes.
9 Q. Was there any particular reason you chose
10 Michigan?
11 A. Because they have trout that we don't have
12 here in Illinois, and walleyes are easier to catch than
13 we have in Illinois.
14 Q. Did you consider the regulation for
15 mercury emissions when you decided to go to Michigan?
16 A. I hope not.
17 Q. No further questions.
18 MADAM HEARING OFFICER: Anything
19 further for Dr. Hornshaw? Thank you very much. I also
20 want to thank all of you. Mr. Bonebrake, Ms. Bassi,
21 Mr. Zabel, Mr. Forcade, etc. I appreciate your courtesy
22 shown to Dr. Hornshaw and to Dr. Keeler and to the other
23 witnesses this week, and I hope we can continue next
24 week in the same vein, and I look forward to seeing you
Page86
1 all Monday at nine a.m.
2 (At which point, the hearing was
3 adjourned.)
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1 STATE OF ILLINOIS)
2 COUNTY OF ST. CLAIR)SS
3
4 I, Holly A. Schmid, a Notary Public in
5 and for the County of Williamson, DO HEREBY CERTIFY that
6 pursuant to agreement between counsel there appeared
7 before me on June 15, 2006, at the office of the IPCB,
8 Springfield, Illinois, all parties to the rulemaking
9 proceeding touching upon the matter in controversy
10 aforesaid and such rulemaking was taken by me in
11 shorthand and afterwards transcribed upon the typewriter
12 and said testimony is herewith returned.
13 IN WITNESS WHEREOF I have hereunto set
14 my hand and affixed my Notarial Seal this 30th day of
15 June, 2006.
16 __________________________
17 HOLLY A. SCHMID
18 Notary Public -- CSR
19 084-98-254587
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