1 ILLINOIS POLLUTION CONTROL BOARD
June 14, 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) )
6
TESTIMONY OF MARCIA WILLHITE
7 IN PANEL WITH DR. THOMAS HORNSHAW AND
DR. GERALD KEELER
8
BEFORE MARIE E. TIPSORD
9 HEARING OFFICER
10
The testimony of Marcia Willhite, a
11 witness called in the rulemaking proceeding before the
Illinois Pollution Control Board beginning on June 14,
12 2006, at 9:00 a.m., at the offices of the Environmental
Protection Agency, Springfield, Illinois, before Holly
13 A. Schmid, Notary Public and Certified Shorthand
Reporter, CSR No. 084-98-254587 for the State of
14 Illinois.
15
16
17
18
19
20
21
22
23
24
Page1
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;
10
11 COUNSEL FROM SCHIFF-HARDEN
Ms. Kathleen Bassi;
12 Mr. Stephen Bonebrake;
Mr. Sheldon Zabel;
13 Mr. Jim Ingram, Dynegy, Inc.
14
COUNSEL FROM JENNER & BLOCK
15 Mr. Bill Forcade;
Ms. Katherine Rahill.
16
COUNSEL FROM McGUIRE-WOODS:
17 Mr. James Harrington;
Mr. David Rieser;
18
COUNSEL FROM ENVIRONMENTAL LAW & POLICY CENTER
19 Ms. Meleah Geertsma;
20 COUNSEL FROM MIDWEST GENERATION
Mr. Basil G. Constantelos.
21
COUNSEL FROM CHICAGO LEGAL CLINIC
22 Mr. Keith I Harley.
23
24
Page2
1
2
E X H I B I T S
3
IDENTIFICATION PG.
4
Exhibits 8, 9, and 10 9
5
Exhibit 11 21
6
Exhibits 12, 13 and 14 73
7
Exhibit 15 83
8
Exhibit 16 134
9
Exhibit 17 142
10
Exhibit 18 156
11
Exhibit 19 179
12
Exhibit 20 216
13
Exhibit 21 254
14
Exhibit 22 and 23 307
15
Exhibit 24 310
16
17
18
19
20
21
22
23
24
Page3
1 MADAM HEARING OFFICER: Good afternoon
2 again. Mr. Kim, you gave me the testimony of Marcia
3 Willhite, Thomas Hornshaw and Gerald Keeler.
4 MR. KIM: Yes, I apologize. There was
5 one other thing, just to tie up one loose end with Jeff
6 Sprague's testimony, I believe there were two
7 outstanding issues we were going to look into. One was
8 a question as to where the 6 percent figure came from on
9 the last page of his testimony, and I will be honest
10 with you, the other was a question that I didn't quite
11 get, and I don't think Mr. Sprague quite got, either, so
12 Mr. Sprague can testify now and answer where he got that
13 6 percent figure and maybe if the reporter can read it
14 back or if you can remember your --
15 MR. BONEBRAKE: The second question I
16 will have to go back and take a look at my notes.
17 MR. SPRAGUE: Just to start from, I
18 wanted to clarify one point, as well. I stress pretty
19 heavily that I was confined to using the two reports in
20 developing my contribution to the TSD. Well, when it
21 came to answering the questions posed by the attorneys I
22 still tried to limit myself to those two reports, but in
23 certain cases, I went beyond just to try and be as
24 complete as possible, and with regard to 6 percent
Page4
1 stuff, that came out of the CDC's morbidity and
2 mortality weekly report. This is dated November 5,
3 2004, and the 6 percent value appears in there.
4 MR. BONEBRAKE CONTINUES:
5 Q. The follow-up question was the 6 percent
6 value then Mr. Sprague with respect to a particular year
7 or years?
8 A. Yeah. The years of data that they used
9 were 1999 through 2002.
10 MR. ZABEL CONTINUES:
11 Q. I'm just curious, Mr. Sprague. You said
12 you tried to confine yourself to two reports, but also
13 tried to go beyond that to answer some of the questions.
14 How did you make the determination which ones to go
15 beyond the two reports for?
16 A. Well, there were certain time constraints,
17 so I had to use those two regarding my contributions to
18 the TSD. That was a given, and then, of course, the
19 questions came in later, so there was more time to do
20 some -- try to respond to the questions as fully as I
21 possibly could, but still keeping in mind that the TSD
22 contribution was based on those two reports.
23 Q. But in responding to the prefiled
24 questions, you had no limitation on going beyond those
Page5
1 two reports in attempting to answer them. Is that
2 correct?
3 A. None beyond any time limitation in
4 developing responses.
5 MR. KIM: Just to clarify, maybe in
6 your answers that you provided earlier if you did
7 reference documents outside of the two that you
8 identified that you looked at in preparing the TSD, did
9 you try and cite to or identify those reports when you
10 were giving your answers today?
11 MR. SPRAGUE: For the TSD, the only
12 other thing and I mentioned it was just a web search for
13 definitions for certain terms and that was it,
14 exclusively.
15 MR. BONEBRAKE CONTINUES:
16 Q. Then I think the other question that was
17 outstanding was the issue that I had raised of my
18 understanding that the CDC study was looking at
19 concentrations in the body, whereas the sentence in --
20 the last sentence in your report that refers to the CDC
21 study compares it to the reference dose, which I had
22 understood to be an intake or consumption measure, and
23 so it was not clear to me how those two or the different
24 type of numbers were being compared.
Page6
1 A. My understanding is that you're right on
2 both accounts, that the 6 percent number refers to a
3 body burden level within these women. The reference
4 dose is a reference dose referring to exposure, but
5 then, again, there is the linkage the CDC is making
6 between body burden and the reference dose.
7 Q. Is the linkage, Mr. Sprague, set forth in
8 the document that you have with you today?
9 A. Whether it's clearly stated or not, I
10 certainly don't -- I don't see it in this first
11 paragraph here, but this -- in talking with Dr. Rice,
12 apparently, built within this is the assumption that
13 there's a one-to-one ratio between maternal blood and
14 cord blood, and whether that assumption is valid or not,
15 I guess there is reason for that different researchers
16 have to -- but from what I could distill out of the
17 report, that was what I was taking away from it, that,
18 indeed, they were making a comparison between the body
19 burden and the reference dose, as we know it.
20 Q. Do you have an understanding, Mr. Sprague,
21 of whether the document that you have with you today was
22 submitted to the Board by the Agency?
23 A. I haven't done an extensive look at
24 reference lists. It may or may not be.
Page7
1 MADAM HEARING OFFICER: If not, could
2 we please have it admitted?
3 MR. KIM: If it hasn't been, we will
4 have some copies made and tomorrow morning, at the
5 latest, we'll have that.
6 MADAM HEARING OFFICER: Mr. Forcade.
7 MR. FORCADE CONTINUES:
8 Q. I'm sorry to repeat the same question, but
9 I'm not understanding correctly. Are you saying that
10 this last sentence on page three means that CDC
11 estimated, approximately, 6 percent of the women of
12 childbearing age have blood mercury levels greater than
13 the intake recommendation?
14 A. That would correspond to the reference
15 dose. Remember again, that you can -- my understanding,
16 anyway, is that you can make an extrapolation between
17 what the body burden is in maternal blood or cord blood
18 with regard to the reference dose, as has been indicated
19 earlier, for maternal hair.
20 Q. Then are you suggesting that 6 percent of
21 the women of childbearing age have a blood mercury at,
22 or exceeding, the level they would have if they
23 consumed --
24 A. If they consumed that daily rate over a
Page8
1 lifetime. That's my understanding.
2 MADAM HEARING OFFICER: Thank you,
3 Mr. Sprague.
4 MR. KIM: With the end of
5 Mr. Sprague's testimony, what we would be doing then
6 next is presenting, basically, a three-person panel.
7 Marcia Willhite will be answering her questions first.
8 Then Dr. Gerald Keeler and then Dr. Thomas Hornshaw.
9 The reason we're trying to group these three individuals
10 together is that Ms. Willhite's questions are fairly
11 wide in range, and there are some of her questions that
12 are actually better answered by either Dr. Keeler or
13 Dr. Hornshaw, so it seems convenient to have them here
14 at the same time. If we haven't done it already, we
15 could ask that Ms. Willhite and Dr. Keeler's testimony
16 be admitted as if read.
17 MADAM HEARING OFFICER: Dr. Hornshaw's,
18 as well. If there's no objection, I will enter Marcia
19 Willhite's testimony as Exhibit 8; Dr. Hornshaw's
20 testimony as Exhibit 9, and Dr. Keeler's as Exhibit 10.
21 Any objection?
22 (Exhibits 8, 9 and 10 were admitted.)
23 MR. BONEBRAKE: What I would put on
24 the record is there's no objection, but we reserve
Page9
1 questions regarding qualifications of the witnesses.
2 MADAM HEARING OFFICER: So noted.
3 MR. BONEBRAKE: Just a housekeeping
4 item, we're going to be going first, asking, first,
5 questions with respect to Marcia Willhite, but the other
6 two members of the panel may answer some of the
7 questions directed to Ms. Willhite?
8 MR. KIM: Correct, if there were some
9 questions directed to her, for example, the fish
10 consumption advisory, and she's not all that well versed
11 on it, but Dr. Hornshaw, obviously, is, then she may
12 just simply ask him to answer that question, and that
13 would be not inconsistent to how we have identified, for
14 example, with Dr. Rice's testimony this morning where
15 she indicated some of the questions directed to her
16 would be better answered by Dr. Hornshaw, that kind of
17 thing.
18 MADAM HEARING OFFICER: Ms. Willhite,
19 when you begin, since you have multiple questions or
20 questions from different parties posed to you, can you
21 identify which party's questions you are beginning with?
22 MS. WILLHITE: Should I start with the
23 Dynegy ones? How would you like me to do that?
24 MR. KIM: Whatever your flavor.
Page10
1 MS. WILLHITE: Question 1: "Has Marcia
2 Willhite published any articles or studies concerning
3 mercury?" No, I haven't. "Has Ms. Willhite ever
4 conducted a TMDL study or report or personally
5 identified a water as impaired under Section 303 of the
6 Clean Water Act?" I'm testifying today as a state
7 official who manages the part of the Agency that
8 administers the Illinois Protection Act and the Federal
9 Clean Water Act. Those duties include overseeing the
10 staff that asses water bodies, that identify waters that
11 are impaired under the 303-D provisions of the Clean
12 Water Act and developed TMDL's, but I have not,
13 personally, conducted the work. I have reviewed it.
14 "Does Ms. Willhite have any formal training or regarding
15 the mercury methylation process for mercury, mercury
16 speciation, mercury deposition or mercury health
17 impacts?"
18 MS. BASSI: Could you please give the
19 question number as you're doing this, just so we can
20 follow along better. That was it.
21 MS. WILLHITE: We're to question 3.
22 Question 3, "Does Ms. Willhite have any formal training
23 in these areas? If so, please describe." I have a
24 master's in toxicology, and I'm pretty sure that 20
Page11
1 years ago that formal training included
2 methyl-toxicology and mechanisms of toxicity, but I'm
3 not offering myself as a toxicologist today. As a state
4 official, we become familiar with the literature and
5 other people's work regarding things like mercury
6 methylation, speciation, mercury deposition and health
7 impacts as it impacts the decisions that we have to make
8 in administering the program, so I would characterize
9 myself as well informed on those subjects, but not
10 trained formally in them. Question 4: "Did
11 Ms. Willhite draft or assist with drafting any portion
12 of the TSD's in its rulemaking, and if so, please
13 identify the portions." I drafted the portion of the
14 TSD and those were Sections 4.1, 4.2, 4.3, 4.4 and
15 Section 5.2. Question five: At page one of
16 Ms. Willhite's testimony, she states as follows:
17 `Arguably, if the fish that are caught are not safe to
18 eat, the fishable goal is not being met.' With respect
19 to this statement, A, what does the term "arguably" mean
20 in the sentence and has the Agency ever taken the
21 position that the fishable standard is satisfied, even
22 if the fish caught are not safe to eat?" I'm going to
23 combine this with the next question, B, which is, "What
24 is the fishable goal?" The answer to these questions --
Page12
1 the term "arguably" was used because the Clean Water Act
2 is not explicit that the fishable goal includes
3 unlimited consumption of fish and so you have to infer
4 that from the language. Section 101.A.2 of the Clean
5 Water Act states the national goal is that where ever
6 attainable a goal of water quality which provides for
7 the protection and propagation of fish, shellfish and
8 wildlife, and provides for recreation in and on the
9 water be achieved by July 1, 1983. This is commonly
10 referred to as the Fishable and Swimmable Goals of the
11 Clean Water Act. Here's how U.S. EPA explained the
12 applicability of the fishable goal to safer consumption
13 of fish in a guide dated October 24, 2000. EPA
14 interprets "fishable" in quotes under Section 101-A of
15 the Clean Water Act when the United States minimum
16 designated uses providing for protection of aquatic and
17 human health related to consumption of fish. In other
18 words, EPA views "fishable" to mean only that, not only
19 can fish and shellfish thrive in water, but when caught,
20 can also be safely eaten by humans. This interpretation
21 also satisfies the section 303-C-2-A requirement that
22 water quality standards protect public health, including
23 human consumption of fish and shellfish in the
24 definition of Section 101-5. Fishable uses is not new.
Page13
1 For example, under the National Toxicology Rule
2 (phonetic) all waters designated for even minimal
3 aquatic life protection, and therefore, a potential fish
4 and shellfish consumption are protected for human health
5 and then the guide is cited at 57-FR-60859, dated
6 December 22, 1992. The second part of five, A, was --
7 the answer to that question is I am not aware of any
8 situation when the Agency has taken the position that
9 waters with fish having tissues levels of contamination
10 above fish consumption advisory levels were satisfying
11 the fishable goal.
12 MR. BONEBRAKE CONTINUES:
13 Q. A follow-up question. The U.S. EPA
14 guidance document that you just quoted, is it your
15 understanding that that guidance document is being
16 followed and has been followed by the Illinois
17 Environmental Protection Agency with respect to the
18 303-D prior water reports?
19 A. Yes.
20 MS. WILLHITE: Question 5-C: "How
21 does the Agency determine whether fish caught are not
22 safe to eat for purposes of this analysis?" The answer
23 is fish with tissue concentrations above the fish
24 consumption advisory levels, as defined by the Illinois
Page14
1 Fish Contaminant Monitoring Program, are not safe to eat
2 in unlimited quantities.
3 MR. BONEBRAKE CONTINUES:
4 Q. You just referred to unlimited quantities.
5 A. Yes.
6 Q. Are you indicating, Ms. Willhite, that
7 fish are not caught to save if an unlimited quantity of
8 the fish cannot be consumed by residents of the state?
9 A. That's what I meant with my testimony.
10 Q. Does that mean that, if a fish contains
11 concentrations of methylmercury above .05 parts per
12 million that the fish caught is not safe to eat?
13 A. In unlimited quantities.
14 Q. And is that particular determination made
15 on a waterbody-by-waterbody basis?
16 A. With relationship to my part of the task
17 here of identifying waters that are impaired and not
18 meeting their designated uses, yes.
19 Q. And if you have multiple fish samples from
20 a particular waterbody, and some are above .05 and some
21 are below .05, how does the Agency deal with that
22 scenario?
23 A. I'm going to defer that to Dr. Hornshaw.
24 DR. HORNSHAW: The Fish Contaminant
Page15
1 Monitoring Program would look at the weight of the
2 evidence, look at the average concentration among all
3 the fish of a particular species, look at the maximum
4 concentration, look at the pattern over time, if there
5 is more than two years' worth of data. Our policy is to
6 use, at least, two years of recent data before an
7 advisory is issued, changed, or developed, so if there's
8 more than two years' worth of data, we look at the
9 pattern over time, and make our best professional
10 judgement of what the level of light, if any, should be
11 available for that species.
12 MR. BONEBRAKE CONTINUES:
13 Q. I'm trying to understand the testimony
14 innerface between what I'm hearing from both of you.
15 Ms. Willhite, is it your testimony, then, that, in
16 identifying whether fish caught are not safe to eat, you
17 or the people who work with you, would defer to
18 Mr. Hornshaw, or the people that work for Mr. Hornshaw?
19 MS. WILLHITE CONTINUES:
20 A. Right. Dr. Hornshaw is the Agency's
21 representative on the Fish Contaminant Monitoring
22 Program. They are the ones that look at the tissue data
23 from the fish collection and make a determination about
24 what the advice should be for a particular waterbody.
Page16
1 The Bureau of Water then uses that information as we
2 assess for a particular waterbody whether all of it is
3 designated uses are being met. Does that help?
4 Q. So is an advisory issued by the Agency,
5 fish advisory issued by an agency a prerequisite for
6 listing a body of water as impaired by the Illinois
7 Environmental Protection Agency?
8 A. A waterbody-specific fish consumption
9 advisory, yes, as opposed to the statewide advisory.
10 Q. I was going to ask you to define that
11 distinction for us.
12 A. I actually have a question that gets to
13 that a little bit later, but I can turn to that now, if
14 you would rather.
15 Q. We can deal with it in the due course of
16 your testimony.
17 MR. ZABEL CONTINUES:
18 Q. Ms. Willhite, is a waterbody considered
19 not fishable if a single species exceeds the standard.
20 A. I guess I would phrase it that we would
21 say the waterbody is not meeting the fishable goal, is
22 not meeting the fish consumption that's designated to
23 that, if there's a fish consumption advisory for that
24 waterbody.
Page17
1 Q. For a single species?
2 A. Well, I defer, again, to Tom as to how the
3 decision is made about whether a fish consumption
4 advisory is put in place for a certain waterbody.
5 DR. HORNSHAW: We do issue single
6 species fish advisories. That's not the case for the
7 mercury statewide, as I testified earlier. It's for all
8 predator species based on the data that we have. We do
9 have single species advisories for PCB's, and I believe
10 there's one nor chlordane, as well.
11 MR. BONEBRAKE CONTINUES:
12 Q. That would make that waterbody not meet
13 the standard of fishable?
14 A. Right.
15 Q. Are there any fish species-specific
16 methylmercury, special advisories?
17 A. Yes. The special mercury advisory has 14
18 -- some number of lakes in the teens that have special
19 advisories because the species are greater -- have
20 greater levels of contamination than would meet the
21 definition of one meal per week that would keep them in
22 the statewide advisory.
23 Q. Just a follow-up question. Are the
24 special advisories, by definition, fish
Page18
1 species-specific?
2 A. They are waterbody specific, and it
3 depends on what amount of data we have. I believe that
4 we do have data, based on just largemouth bass, because
5 that's all the data we have.
6 MR. ZABEL CONTINUES:
7 Q. For the record, could you identify the
8 document you're looking at.
9 A. I will making a exhibit of this later, but
10 it's the current 2006 Illinois Fishing Information,
11 which is one of the two primary vehicles we use for
12 getting information out.
13 Q. That's an EPA publication?
14 A. Illinois Department of Natural Resources.
15 This is the booklet that's available with each fishing
16 license that's sold that contains bag limits, best lakes
17 for whatever species and it has four pages of advisory
18 information and for example, arrowhead Lake in Cook
19 County, the fish species of concern is largemouth bass,
20 and for women of childbearing age and children less than
21 15 set up a meal per month, which would be the statewide
22 advisory, a meal per week, which is the statewide
23 advisory. Our advice is a meal per month, and for women
24 beyond childbearing age and children over 15, the advice
Page19
1 is a meal per week, instead of unlimited consumption.
2 There's several other bodies of water that have a single
3 species that puts them on special mercury advisory.
4 MADAM HEARING OFFICER: Ms. Bassi.
5 Before we get to that, since you are referring to that
6 now, I think we need to go ahead and admit that as an
7 exhibit for purposes of the record.
8 MR. BONEBRAKE: Can we have copies of
9 that made?
10 DR. HORNSHAW: I only have three
11 copies left from the allotment that DNR gave me.
12 MADAM HEARING OFFICER: Do you know if
13 this is available from the website?
14 DR. HORNSHAW: This information is
15 available on the Public Health website. I have never
16 gone to DNR's website, so I'm not sure. I believe it
17 is, but I can't say for certain.
18 MADAM HEARING OFFICER: If we need more
19 copies can we get them Xeroxed copies?
20 MR. KIM: Yes. At the very least, we
21 will provide Xerox copies. We can maybe tomorrow
22 morning try and contact DNR, and see if they have any
23 more actual written copies left. At the very least, we
24 can make additional photocopies.
Page20
1 MADAM HEARING OFFICER: I'm marking
2 this as Exhibit 11. Is there any objection? Seeing
3 none, we'll mark this as Exhibit 11.
4 (Exhibit 11 was admitted.)
5 MR. BONEBRAKE CONTINUES:
6 Q. Dr. Hornshaw, the four pages that you were
7 referring to, what are the number designations in this
8 document?
9 A. It starts at page 40 and goes through page
10 43. The reason I'm making this an exhibit is because it
11 answers the question to me are there advisories based on
12 PCB, which you will find on page 42, 43 entitled
13 "Chlordane and PCB Advisory." That's why I needed to
14 make this an exhibit.
15 MS. BASSI CONTINUES:
16 Q. Maybe I misheard. I thought you said that
17 the fish advisory for -- I think just mercury was all
18 predator fish. Is that correct?
19 A. The statewide advisory, that's correct.
20 Q. Does the statewide advisory refer to
21 mercury?
22 A. Yes.
23 Q. Then I thought you said -- I thought I
24 heard your say that the only data you have is largemouth
Page21
1 bass. Is that correct?
2 A. For Arrowhead Lake, in order to place it
3 on the special mercury advisory.
4 Q. But do you have -- then do you have data
5 on other types of predator fish in other waterbodies?
6 A. Yes.
7 Q. Thank you.
8 MR. BONEBRAKE CONTINUES:
9 Q. Another clarification, my understanding
10 from what you said before was if a waterbody has a
11 special advisory, then it's considered by the Agency to
12 be impaired, and an Impaired Water Report needs to be
13 provided to the U.S. EPA. Is that correct?
14 A. I'm not completely certain if the special
15 advisory lakes that are on there are the same ones as
16 what we have as waterbody-specific identified as
17 impaired, but generally, yes, that's the case. Just in
18 contrast, some states make the decision that, if they
19 have a statewide advisory, then every single waterbody
20 is covered by that statewide advisory, and goes on their
21 list of impaired waters. That's not the choice that
22 Illinois has made. Illinois makes the choice that we
23 only put it this 303-D list those waterbodies for which
24 we have specific data and waterbody specific advisory.
Page22
1 Q. And unless the water goes on the Impaired
2 Waters Report list, then, ultimately, it's not going to
3 require a TMDL. Is that correct?
4 A. Correct.
5 MADAM HEARING OFFICER: Mr. Zabel.
6 DR. HORNSHAW: I'm going to add some
7 clarification that the Fish Contaminant Program and what
8 Marcia does with the impaired waters list are a little
9 bit different. If we have, for instance, two years
10 worth of data that shows largemouth bass from whatever
11 lake we are concerned about requires a one meal per week
12 advisory, that water is automatically covered by that
13 statewide advisory, and we would not list that water,
14 specifically. If Marcia's program has that same
15 information, it would list that water, specifically, in
16 the 303-D list because we have waterbody specific
17 information.
18 MS. BASSI CONTINUES:
19 Q. But she -- I thought she said she gets the
20 information from you, so don't you tell her when you
21 have one?
22 DR. HORNSHAW: She has access to the
23 main database, and the people that work for her can look
24 through that database, and see whether there's two
Page23
1 years' worth of data. I wouldn't necessarily report
2 every body of water to Marcia's program that has two
3 years worth of data or even one year's worth of data
4 that shows a particular waterbody meets the definition
5 of one meal per week because that's already covered by
6 the statewide advisory. There's no reason for me to
7 make anything special out of that water because it's
8 already covered by the advisory, whereas --
9 MR. ZABEL CONTINUES:
10 Q. I'm sorry. I'm still confused. We have a
11 statewide advisory, one meal per week for mercury. Does
12 that apply to any largemouth bass caught anywhere in the
13 state of Illinois?
14 A. That's correct, except Lake Michigan.
15 Q. All waterbodies, even some of which you
16 have no current data on.
17 A. Absolutely.
18 MS. WILLHITE: So we only list as
19 impaired those waterbodies for which we have specific
20 data that shows that it's above the advisory levels.
21 Although all the waterbodies are subject to the
22 statewide advisory, not all waterbodies are under 303-D.
23 MR. BONEBRAKE CONTINUES:
24 Q. Then I also have a follow-up. You
Page24
1 mentioned, Dr. Hornshaw, the one-meal-per-week standard
2 I believe.
3 DR. HORNSHAW CONTINUES:
4 A. What about it?
5 Q. Is that what is used to identify a
6 waterbody for purposes off issuance of a special
7 advisory for impaired water purposes?
8 A. No. The statewide advisory is for one
9 meal per week. Only where we have two weeks of recent
10 data that says the fish are more contaminated and need
11 more restrictive advice do we put it on the special
12 mercury advisory, and in every case, it's a meal per
13 month for the sensitive group for that species so far.
14 Q. Does that mean, then, that for purposes of
15 the impaired water listing he fish concentration
16 threshold is .23 parts per million?
17 A. .06 parts per million because that makes
18 it eligible for one meal per week advice.
19 Q. So any waterbody containing fish that have
20 been sampled and have concentrations above .06 --
21 A. Starting at .06.
22 Q. Starting at .06 will be identified as
23 waterbodies subject to special advisory, and therefore,
24 on the impaired water listing?
Page25
1 MS. WILLHITE: Will be on the impaired
2 water listing.
3 DR. HORNSHAW: It will be -- it won't
4 be subject to the special mercury advisory, until it
5 reaches .23 and above. .06 to .22 is the range for the
6 one meal per week advice.
7 MS. WILLHITE: Questions 5-D and 5-E
8 -- 5-D: "Is the goal stated in this sentence different
9 from the `beneficial use' goals described in the next
10 paragraph of her testimony?" And E is, "If so, what are
11 the different statutory regulatory bases?" And the
12 answer is yes, these are different. The fishable goal
13 is general policy of the Clean Water Act. As I
14 mentioned, it's defined in Section 101-A-2 of the Clean
15 Water Act, and again official use is the designation
16 that's made by the state under the Clean Water Act
17 Section 303-C-2-A of how the state defines how the water
18 in a particular waterbody will be used. Examples of
19 designated or beneficial uses are, like, for drinking
20 for swimming, for fishing, etc. Question No. 6: "In
21 page of Ms. Willhite's testimony, she refers to a water
22 quality standard of 0.12 micrograms per liter of water
23 for protection of human health due to accumulation of
24 mercury in fish tissue. With respect to that statement,
Page26
1 A, the Agency's TSD, at page 50, states the standard to
2 `address the potential for mercury to bioaccumulate in
3 fish tissue is quote 0.012 micrograms per liter total
4 mercury.' Is the TSD referring to the same water
5 quality standard?" And then sub 1: "If so, what
6 numeric standard is correct, 0.012 or 0.12 micrograms
7 per liter?" Congratulations. You found a typo. The
8 Illinois Water Quality Standard for mercury for
9 protection of human health is 0.012 micrograms per liter
10 of stated on page 750 of the TSD. 6-B: "Is the
11 Illinois water quality standard related to the
12 protection of human health the most stringent water
13 quality standard with respect to mercury?" I'm going to
14 answer that together with questions 6-C, "Is the
15 presence of mercury in fish tissue the only health
16 concern with respect to mercury in Illinois waters?"
17 Sub-1: "If not, please identify any other health
18 concerns and any Illinois waters in which such concerns
19 exist." The answer is Illinois has two types of water
20 quality standards for mercury. One is for the
21 protection of human health, and that's the 0.0123
22 micrograms per liter, and then there's those for
23 protection of aquatic life from acute toxicity, which is
24 2.2 micrograms per liter, and to protect aquatic life
Page27
1 from chronicity 1.1 micrograms per liter, so the answer
2 is that that is not the only concern, but the human
3 health standard is the most stringent. Question 7: "At
4 page two of Ms. Willhite's testimony, she states as
5 follows: `Only those waterbodies where fish tissue data
6 have been collected and analysis shows mercury levels of
7 concern are identified as impaired.' With respect to
8 this statement, A, please confirm that the presence of
9 mercury in the water column or sediment is not, and has
10 not, been used by the Agency to identify or list any
11 waterbody as impaired under Section 303-D of the Clean
12 Water Act." And the answer is the presence of mercury
13 in the water column or sediment has not been used as the
14 primary criterion for identifying or --
15 MADAM HEARING OFFICER: Could you slow
16 down? It's Not so bad when she has copies.
17 MR. BONEBRAKE CONTINUES:
18 Q. I do have a follow-up. Did you say "the
19 primary"?
20 A. Yes.
21 Q. And does that suggest that mercury or
22 presence in the water column or sediment, in some
23 secondary fashion, has been used to identify a water as
24 impaired?
Page28
1 A. Possibly we do have in our 303-D list a
2 situation where a few waters are identified as impaired
3 for aquatic life use, and the presence of mercury was
4 identified by the biologist as a possible contributor to
5 the toxicity.
6 Q. In those particular waterbodies, was
7 mercury present in fish tissue above the relevant
8 standard, and so --
9 A. It was based on detecting the presence of
10 mercury in the water column and the or the sediment
11 based on the information I have, but that was not the
12 primary issue. It wasn't that there were tissues above
13 advisory levels.
14 Q. I guess I'm still struggling with your
15 answer. Is it that there are some waterbodies in
16 Illinois that have been identified when we talk about
17 methylmercury here that have been identified with
18 respect to methylmercury on the bases of methylmercury
19 in the water column or sediment and not in fish tissue?
20 A. Not exactly. As I mentioned, you can
21 designate different types of beneficial uses for a
22 waterbody. One type is fish consumption; another type is
23 supporting aquatic life. That means that the conditions
24 are healthy for a thriving fish or other type of aquatic
Page29
1 organization population in that waterbody. And the way
2 our process goes is that you identify a waterbody as
3 impaired, for example, for whatever reason, the fish
4 population is not as robust as you would expect given
5 the waterbody, and there might be a variety of factors
6 that are contributing to that use impairment. What I'm
7 saying is that we have, on our 303-D list, a couple of
8 waters where the aquatic life use was impaired, most
9 likely, for some other type of factor as the primary
10 issue, but we are required to list any possible cause of
11 impairment, and in a few waters, I think there's, like,
12 three river segments or something like that -- I think I
13 actually answered this question a little bit later in my
14 testimony -- it was noted that there were high mercury
15 levels in either the water or sediment and the biologist
16 identified that as a possible contributor, but the
17 opinion of the biologist was that was not the primary
18 issue, and if that part of the waterbody was not listed
19 as not meeting the fish consumption use -- in other
20 words, there were not excessive levels of mercury in the
21 fish tissue.
22 MS. WILLHITE: 7-B we believe we have
23 already answered.
24 MR. BONEBRAKE CONTINUES:
Page30
1 Q. Just to make sure that I understand, know
2 what the answer would be to 7-B is .06 ppm. Is that the
3 level of concern?
4 DR. HORNSHAW: That's correct.
5 MS. WILLHITE: And 7-C. Do you want
6 to take that one, too?
7 DR. HORNSHAW CONTINUES: This question
8 was also answered of me, and I have a fairly involved
9 answer. Do you want it now or do you want it in context
10 with my questions?
11 MR. BONEBRAKE: Why don't we defer.
12 DR. HORNSHAW: D: As I said before,
13 the Fish Contaminant Monitoring Program is involved with
14 the levels of concern, but I did the actual calculations
15 and presented the values to the Fish Contaminant Program
16 when we discussed whether we should change to the
17 risk-based approach versus the approach that had been in
18 effect up to that period of time. I had a lot of
19 discussion and that discussion -- questions about that
20 will be asked of me later.
21 MR. BONEBRAKE: I guess we will defer
22 that. We'll have a number of follow-up questions for
23 you.
24 MR. KIM: For the record, and I'm all
Page31
1 for moving quickly, but I think we are referencing some
2 questions just by number and letter, as opposed to
3 actually reading it for the record. If you want to
4 actually read the question and then -- because 7D: "Who
5 calculates the level of concern?" I don't think that
6 was actually read into the record.
7 MADAM HEARING OFFICER: Thank you for
8 mentioning that. We should still read the questions, so
9 we know what is going to be deferred.
10 MS. WILLHITE: We're there now. 7-E,
11 "Please describe the various forms of mercury that may
12 be emitted from coal-fired EGU's." The answer is
13 mercury emitted from coal-fired power plants can be
14 elemental mercury, particulate mercury or reactive
15 gaseous, otherwise known as oxidized mercury.
16 MADAM HEARING OFFICER: For the record,
17 "EGU" is electric generating units.
18 MR. BONEBRAKE CONTINUES:
19 Q. The I think RGN (phonetic) that you
20 mentioned, is that also known as divalent?
21 MS. WILLHITE: Yes. 7-F: "Please
22 explain whether the mercury referenced in this sentence
23 includes all forms of mercury or only a specific form of
24 mercury." Sub-1: "If the latter, please identify the
Page32
1 specific form of mercury referenced." The answer is
2 methylmercury is referenced.
3 DR. HORNSHAW: I will take G. "In
4 setting the level of concern, does the Agency assume
5 that all of the mercury detected in fish tissue is
6 methylmercury? Yes. "If so, what is the basis for this
7 assumption?" Again, this question was also asked of me.
8 I can take it now or later.
9 MR. BONEBRAKE: Let's go ahead now,
10 while we're here.
11 DR. HORNSHAW: I will have to find it.
12 The Illinois EPA lab reports the mercury results as
13 total mercury. The Fish Contaminant Monitoring Program
14 assumes based on literature and studies, and I have
15 three of them that I relied upon. One is a 1992 paper
16 by Blume on "The Chemical Form of Mercury on Edible Fish
17 and Vertebral Tissue from a Canadian General Fishes and
18 Aquatic Sciences," (phonetic) pages 1010 through 1017,
19 the second is 1990 paper by Grieb -- G-R-I-E-B -- et
20 al., "Factors Affecting Mercury Accumulation of Fish in
21 the Upper Michigan Peninsula" and in the Journal of
22 Environmental Toxicology and Chemistry, Volume 9. The
23 third is Hucaba -- H-U-C-A-B-A -- et al., a 1979
24 publication "Accumulation of Mercury in Fresh Water
Page33
1 BIODA" in a book "Chemistry of Mercury in the
2 Environment," pages 277 through 302. All three of these
3 journals or these references state that 95 percent or
4 greater of the total mercury in fish is methylmercury
5 and so the Fish Contaminant Program does not check the
6 total mercury versus methylmercury.
7 MR. BONEBRAKE CONTINUES:
8 Q. A follow-up I think first for,
9 Ms. Willhite. In response to the question, "Please
10 explain whether the mercury referenced in this sentence
11 includes all forms of mercury or only a specific form of
12 mercury, and if the latter, please identify the specific
13 form of mercury," I believe you said methylmercury. Is
14 that correct?
15 A. Correct.
16 Q. Does that mean that if the mercury is
17 present in the water column in a form, other than
18 methylmercury, that that would not lead to
19 identification of an impaired water?
20 A. No. The statement that was referenced
21 here says only those waterbodies where tissue levels of
22 concern are identified as impaired. Probably I should
23 have gone on to say as compared for the fish --
24 Q. With respect to the fish tissue component,
Page34
1 then, the presence of mercury is not relevant to the
2 designation of the waterbody as impaired. It's only
3 methylmercury?
4 A. Well, I would need to check and see
5 whether our water quality standard for acute and chronic
6 toxicity to aquatic life is focused on methylmercury or
7 total mercury. I'm not certain. I will look that up
8 and provide you the answer.
9 Q. Dr. Hornshaw, if I understand you
10 correctly, the Agency assumes that all mercury detected
11 in fish samples in Illinois are methylmercury, although
12 the studies you just mentioned indicate that up to five
13 percent of the total mercury identified in lab tests
14 might be a form other than methylmercury?
15 DR. HORNSHAW CONTINUES:
16 A. That's correct. Then the second question,
17 "Is the Agency aware of any study or data that suggests
18 this assumption is not correct?" I am not aware of any.
19 MR. BONEBRAKE CONTINUES:
20 Q. With respect to the mercury present in
21 fish that is not methylmercury, is that form of mercury
22 present the same health risk as methylmercury?
23 A. No. It would present a different health
24 risk. Inorganic mercury is primarily a kidney toxin,
Page35
1 rather than an oral toxin.
2 Q. Is that form subject to a different
3 reference dose or standard for consumption?
4 A. I believe it is, yes.
5 Q. Is that reference dose or standard higher
6 than the reference dose for methylmercury?
7 A. Yes.
8 Q. Do you know what that standard is?
9 A. Not offhand. We haven't calculated
10 corresponding levels of fish tissue, in case you were
11 going to ask that.
12 MS. WILLHITE: The next several
13 questions I consider outside the scope of my testimony,
14 but since you ask, I will go ahead and answer them. But
15 I have to say that I probably won't be able to answer
16 too detailed of questions on the follow-up questions
17 that may come up, and I will read slowly. Question 8:
18 "What percentage of total mercury in water is deposited
19 in or absorbed by sediment, remains in the water column,
20 or is reemitted?" Elemental mercury, inorganic mercury
21 and organic mercury are the three most important forms
22 of mercury in aquatic regions. Inorganic is the primary
23 form introduced into water. On average, about 85
24 percent of total mercury water is made up of inorganic
Page36
1 mercury, and the remaining 15 percent is methylmercury.
2 This distribution is dependent on the location of the
3 waterbody as methylmercury may present 27 to 44 percent
4 of total mercury within anoxic zones -- A-N-O-X-I-C --
5 which is also called the hypolimnion, and 4.6 to 15
6 percent within oxygenated zones, also called epilimnion.
7 Elemental mercury is volatile, and is typically found in
8 the atmosphere, rather than water. It can be produced
9 in water from demethylation of other forms of mercury,
10 but is revolatilized back into the atmosphere. The
11 percent of total mercury that is deposited or absorbed
12 in sediment retained from the water column or
13 volatilized is highly dependent upon chemical and
14 biological characteristics of the waterbody. It is
15 deposited in factor PH, dissolved organic carbon
16 (inaudible), which is abbreviated DOC. Absolved oxygen
17 and temperature influence methylation within a waterbody
18 due to methylation and demethylation rates. There is no
19 clear answer to the distribution of total mercury within
20 the water and sediment as some forms of mercury are more
21 or less water soluble than others, and the distribution
22 of mercury within an environment is dependent upon water
23 chemistry and biology. One estimation of total
24 distribution in an aquatic environment is offered by
Page37
1 Lanthrop, et al. This is a Wisconsin DNR study where it
2 is estimated that over 90 percent of mercury in lake
3 systems is associated -- located in the sediment.
4 Estimating the distribution of a specific mercury form
5 within a waterbody is difficult. For example,
6 methylmercury is less soluble in water than other forms
7 of mercury, and is, therefore, more confined to organic
8 matter. However, this does not mean that methylmercury
9 will form in the sediment as lakes with high suspended
10 DOC will never adhere in sites within the water column.
11 Question 9 --
12 MR. BONEBRAKE CONTINUES:
13 Q. That was a mouth full. Let me ask some
14 basic questions about that. What is the basis or bases
15 for the answer that you just provided?
16 A. I'm sure it's from a literature search
17 that staff did.
18 Q. You had your staff do a literature search
19 to respond to that question?
20 A. Yes.
21 Q. You mentioned a number of factors that
22 bear on methylation rate.
23 A. Yes.
24 Q. Can you describe for the Board and the
Page38
1 rest of us what methylation is?
2 A. That's the process by which inorganic
3 mercury is acted upon by biological organisms, bacteria
4 or whatever to add to methyl (phonetic) group to
5 inorganic mercury and changing its chemical form, so
6 it's more easily absorbed biologically.
7 Q. I think you also mentioned that inorganic
8 mercury is the primary form of mercury that enters into
9 waterbodies. Is that correct?
10 A. That's what I understand.
11 Q. So the methylation process needs to occur
12 with respect to most of the mercury that enters a
13 waterbody before the mercury becomes methylmercury?
14 A. Correct.
15 Q. And the methylation process, is that
16 highly waterbody specific?
17 A. Yes. It depends on the conditions in the
18 waterbody. I think some of the things that -- I can
19 find it here. Some of the types of factors, PH, organic
20 carbon, absolved oxygen, temperature, make a difference,
21 so it does -- when I get to Question 10, I can tell you
22 more.
23 MR. BONEBRAKE: I was trying to take
24 this in baby bites. Why don't we go on to question 10,
Page39
1 if no one else had any --
2 MS. WILLHITE: Should I skip nine
3 right to 10 or answer nine?
4 MR. BONEBRAKE: Let's go to nine next.
5 MS. WILLHITE: Question No. 9: "Of
6 the total mercury in sediments, what percentage is
7 methylated?" The inorganic form of mercury is
8 predominantly in aquatic sediments, in wetland soils if
9 percentage of methylmercury is less than two percent
10 while in aquatic systems, it has been estimated that .7
11 to .0006 percent of total mercury in sediment is
12 methylmercury. However, methylation is highly variable
13 among lake systems and dependent on an environment of
14 chemical and biological elements, which brings us to 10.
15 "Please describe the methylation process."
16 MR. BONEBRAKE CONTINUES:
17 Q. Let me follow up on nine before we move to
18 10. I think you just testified that the inorganic forms
19 are predominant in sediments. Is that correct?"
20 A. Correct.
21 Q. Does methylation occur in sediments?
22 A. It occurs where the biological organisms,
23 the bacteria or whatever are present. My expectation is
24 that it would be mostly in sediments, unless you have a
Page40
1 lot of suspended organic material that the bacteria are
2 adhering to and they can methylate it as it's sitting in
3 the water column.
4 Q. As an example, does that mean you are
5 going to have more methylation in the Mississippi River
6 than in a nice, clear, mountain stream?
7 A. Potentially, but there are other factors,
8 PH, dissolved oxygen. I have seen other data that
9 suggests that a percentage of sulfate and other kinds of
10 things can speed up or slow down methylation process, so
11 my take on that is it's difficult to predict.
12 Q. Is an anaerobic environment required for
13 methylation?
14 A. Tom suggests that I answer 10, and if you
15 still have that question, then we'll go back to it.
16 Would that be okay?
17 Q. That's fine from my perspective.
18 MS. WILLHITE: Question 10: "Please
19 describe the methylation process." The primary form of
20 mercury in the atmosphere is elemental mercury, which
21 may be oxidized to the water soluble inorganic form,
22 divalent. Most mercury enters into an aquatic
23 environment as inorganic mercury, which is readily
24 absorbed to inorganic and organic particulates and DOC
Page41
1 and limits the availability for direct uptake by aquatic
2 organisms. Inorganic mercury can then be reduced to
3 elemental mercury and volatilized back into the
4 atmosphere, or else converted to methylmercury, which is
5 the primary form that accumulates in fish. Inorganic
6 mercury is transformed to methylmercury primarily by
7 sulfate-reducing bacteria living in anoxic zones,
8 although abiotic methylation is known to occur as well.
9 Once formed, methylmercury can be further methylated
10 into methylmercury, which is volatile and readily
11 released from lakes, but these reactions occur primarily
12 at higher PH, greater than seven. Methylmercury may
13 also be demethylated by a microbial process mediated by
14 methylmercury-resistant bacteria. The net methylmercury
15 in a lake is dependent on the rate of methylation and
16 demethylation, which is strongly influenced by a number
17 of waterbody specific chemical and biological factors.
18 MR. BONEBRAKE CONTINUES:
19 Q. We talked a little about the factors that
20 impact methylation . What are factors that impact
21 demethylation?
22 A. I'm not certain that I have the answer to
23 that.
24 Q. Does the rate of demethylation affect the
Page42
1 level of methylmercury in fish tissue in a particular
2 waterbody?
3 A. From this information, it would suggest
4 that the rate of demethylation is more related to what
5 would volatilize then from the lake.
6 Q. Once the mercury is volatilizing from the
7 lake that is not available to become methylmercury in
8 fish tissue. Is that right?
9 A. I'm not certain.
10 Q. The factors that you mentioned that bear
11 on the issue of the methylation rate, has Illinois
12 conducted any study of Illinois waterbodies -- here I
13 mean the Environmental Protection Agency -- with state
14 agencies concerning those particular parameters?
15 A. No.
16 Q. So does the Agency have any specific
17 waterbody-specific information available at this time
18 that would provide information about those
19 characteristics and their impact on methylation rate in
20 Illinois waters?
21 A. No.
22 MADAM HEARING OFFICER: Mr. Zabel.
23 MR. ZABEL CONTINUES:
24 Q. Just to be clear, your discussion I think
Page43
1 all eight and nine and so does that reference only to
2 lakes or does it reference to foreign bodies of water,
3 as well?
4 A. Just lakes. I note that I'm going to
5 answer that question in 11.
6 Q. Maybe in part of the next question 11, but
7 11 is not worded precisely that way, so I thought I
8 would ask that question now.
9 A. Lake terms. Those are lake terms.
10 Q. So the percentages that you were giving
11 and such were for --
12 A. Lakes.
13 Q. But only as to lakes, not to moving bodies
14 of water?
15 A. Yes.
16 MR. BONEBRAKE CONTINUES:
17 Q. Related follow-up. You read a couple
18 fairly lengthy answers to us. What was the source of
19 information in those answers?
20 A. I can find out for you. I don't have that
21 information at this second.
22 Q. Was that the result of additional staff
23 searches?
24 A. Yes. As I said, this was outside the
Page44
1 scope of my testimony, by since you asked, I thought we
2 would answer.
3 Q. From my perspective it was within the
4 scope of your testimony because I think you're
5 testifying about potential reductions in mercury
6 emissions, and the impact that they have on impaired
7 waters, so that seemed necessary to raise the question
8 of the methylation process in bodies of water because
9 that, ultimately, is what's in question as to what's
10 going to end up in fish tissue, and whether that is
11 related to impaired water, so from my perspective, these
12 were all relevant questions.
13 MS. WILLHITE: "Is the rate of
14 methylation the same at different lakes and streams?"
15 And sub-A, "If not, please identify the factors that
16 cause different methylation rates." The rate of
17 methylation is highly dependent on water chemistry and
18 biology. Therefore, this is lake and stream specific
19 and quite variable. There are numerous parameters that
20 may influence the rate of methylation and demethylation
21 within a waterbody, but the exact rate within a
22 waterbody is difficult to estimate due to the complexity
23 of this process. Some of the most important factors
24 that influence net methylation in a waterbody are PH,
Page45
1 dissolved oxygen, DOC, nutrient concentrations, selenium
2 concentrations, temperature, sulfate concentrations,
3 drainage size to lake volume ratio, percentage of
4 wetland and watershed, conductivity and water level
5 fluctuations. Of these parameters, it is, generally,
6 believed that PH and dissolved organic carbon are two of
7 the most important factors driving the methylation
8 production.
9 Q. Again, you refer to lakes. I assume that
10 answer is lake-specific, and does not describe the
11 process of the answer as to streams?
12 A. Well, it says that the rate is lake and
13 stream specific, so I would conclude that these factors
14 are important to the stream environment, as well.
15 MR. BONEBRAKE CONTINUES:
16 Q. Given the factors on methylation,
17 waterbody specific and variable, would you agree that
18 that means that you can't extrapolate, from one
19 waterbody to another, the result in the reduction of
20 mercury deposition?
21 A. I would think that would be challenging to
22 extrapolate from one kind of waterbody to another on the
23 rate of methylation.
24 Q. Does that similarly mean that, if you have
Page46
1 data with respect to one waterbody reflecting a
2 reduction in fish tissue, and at that particular
3 waterbody, there was also a reduction in mercury
4 emissions, that it would be challenging to draw -- you
5 could have -- if you were just to make the assumption
6 that the same reductions in mercury levels in fish
7 tissue would occur in a different waterbody if you
8 didn't know, for a fact, that the same characteristics
9 impact methylation were present in both waterbodies? Is
10 that correct?
11 A. I think I got a little lost in your
12 question.
13 MADAM HEARING OFFICER: As long as
14 we're all lost. Speak up, please, where I can -- you
15 are fading.
16 MR. BONEBRAKE:
17 Q. Let's get back. We'll break this into
18 smaller chunks. I think you were saying that the
19 characteristics that impact methylation are
20 waterbody-specific. Is that right?
21 A. Yes.
22 Q. Therefore, the rates of methylation will
23 be different between -- could be different between
24 different waterbodies?
Page47
1 A. To the extent that they've got a different
2 set of factors or the ranges of those parameters are
3 different, yes.
4 Q. If you don't know what those
5 characteristics are in two waterbodies, you don't know
6 whether the methylation in those two waterbodies will be
7 the same. Is that right?
8 A. Right.
9 MS. GEERTSMA CONTINUES:
10 Q. Among those different factors, are there
11 any that are more deterministic than others?
12 A. PH, dissolved organic carbon are two of
13 the most important factors driving methylation.
14 Q. Is it possible to collect data on various
15 waterbodies, and not have the full set of parameters,
16 but to make a reasonably informed guess based on
17 parameters that you do have as to similar rates among
18 waterbodies?
19 A. Possibly. I'm uncertain.
20 MS. WILLHITE: Question 12: "What
21 factors affect methylation in sediment?" Sediment level
22 is higher at lower PH's that is less than six, and at
23 higher dissolved organic carbon concentrations. Also,
24 the composition of sediment is also a factor as highly
Page48
1 reactive soil, such as wetlands and newly flooded areas,
2 will have a higher methylation. Question 13: "Please
3 describe the transfer rate of methylmercury from
4 sediments to predatory fish including percentage of
5 transfer for each trophic level. Once methylmercury is
6 bound to dissolve organic matter or is dissolved in
7 water, it may be consumed through uptake through lower
8 traffic phytoplankton, which are then consumed. The
9 transfer rate from sediment to phytoplankton to
10 invertebrates is difficult to estimate and is highly
11 dependent upon chemical and biological factors within
12 the waterbody. Invertebrates are consumed by larger
13 predatory fish. The assimilation efficiency of
14 predatory species has been found to be variable, which
15 may explain why some predatory species typically
16 accumulate more methylmercury when compared to other
17 predatory species within the same traffic level. For
18 example, channel catfish tend to accumulate less
19 methylmercury than largemouth bass due to the physiology
20 of methylmercury to red blood cells and plasma. The
21 assimilation of top-level predators is variable, but has
22 been estimated to be between 20 to 50 percent when
23 consuming contaminated --
24 MR. BONEBRAKE CONTINUES:
Page49
1 Q. Has the Agency done any studies regarding
2 the transfer rate of methylmercury from sediments to
3 predatory fish in Illinois waters?
4 A. No.
5 MS. WILLHITE: Question 14, "In the
6 first full paragraph at page two of Ms. Willhite's
7 testimony, she states that TMDL quote must consider all
8 potential sources of pollutants, whether point or
9 nonpoint. It also takes into account the margin of
10 safety which reflects scientific uncertainty, as well as
11 the effects of seasonal variation. With respect to
12 these statements, A, must a TMDL analysis include the
13 impact, if any, due to air emissions and waste water
14 discharges from other states or countries, including any
15 impact of mercury emissions from other states?" The
16 answer is a TMDL must identify all potential sources of
17 impact, regardless of the origin. In order to develop
18 the TMDL, the amount of loading from any point source or
19 any nonpoint source to a particular waterbody must be
20 assessed. Air emissions from whatever location would
21 need to be assessed as part of the nonsource component.
22 It doesn't really matter for the TMDL where the loading
23 comes from because the TMDL is, typically, a calculation
24 of what is the maximum amount of loading on a daily
Page50
1 basis that can be added to the waterbody and still meet
2 water quality standards. Knowing the source of the
3 loading is only important in developing an
4 implementation plan for reducing the loading.
5 MS. BASSI CONTINUES:
6 Q. In the development of a mercury TMDL in
7 Illinois, then, are you distinguishing between nonpoint
8 sources that are airborne that are in the state, as
9 opposed to those that come from outside the state?
10 A. We would not distinguish between those.
11 What you would need to know is what the loading to the
12 waterbody is and there is --
13 Q. So you are only looking at the air
14 loading?
15 A. That is an example of a nonpoint source.
16 There are other kinds of examples of nonpoint sources,
17 and in the calculation of a TMDL, a point source would
18 be a direct discharge from the water, for example, from
19 a publicly-owned treatment works.
20 Q. But are you looking at those different
21 categories of loading sources, nonpoint, point,
22 airborne, as in the aggregate, as opposed to something
23 more specific? Is that what you're telling us?
24 A. Air deposition would be an example of a
Page51
1 nonpoint source, and would be considered as you
2 calculate the loading from nonpoint sources.
3 Q. And it would be just characterized as air
4 deposition?
5 A. It would be characterized officially in a
6 TMDL calculation as the load allocation, which is secret
7 government code for nonpoint source loading.
8 Q. So then this nonpoint source loading
9 including air deposition could also include runoff?
10 A. Right.
11 Q. Okay.
12 MS. WILLHITE: 14-B: "Must a
13 waterbody in the state of Illinois be listed as impaired
14 if fish tissue levels exceed applicable standards for
15 mercury, if such exceedence is due to discharges or
16 emissions from other states or countries?" Yes. The
17 source of the loading is not the issue. It's whether
18 you have got contaminated fish tissue. So as I
19 mentioned before, the source is not the tissue. It's
20 whether the contaminant is present. 14-C: "Has the
21 Agency performed any analysis to determine the amount of
22 mercury deposited in Illinois due to air emissions
23 generated in other states or countries?" No. So I have
24 no applicable answer for sub-1 and sub-2. 14-D: Has
Page52
1 the Agency performed any analyses of the contribution of
2 mercury emissions or discharges in other states or
3 countries to the presence of mercury in sediments,
4 waters, and fish in the state of Illinois?" No.
5 MS. GEERTSMA CONTINUES:
6 Q. Just a follow-up to C, is it normal
7 practice to evaluate out-of-state or out-of-country
8 contributors for any pollutant or generalizing that
9 question?
10 A. Again, it's not really important to the
11 figuring out what amount of loading is coming into the
12 waterbody and how it needs to be reduced or to what
13 degree it needs to be reduced. That's what the TMDL
14 process is. It only becomes important when you try to
15 figure out how you are going to do that. With air
16 deposition, certainly, you would need to understand, as
17 you go about implementing reductions, where is it coming
18 from, and there are states that have issues when they
19 have got impairment in the portion of a waterbody in
20 their state that's coming upstream from some sort of
21 point source discharge, so it would be typical from the
22 standpoint of how you implement the TMDL that you assess
23 where is the loading coming from.
24 MR. BONEBRAKE CONTINUES:
Page53
1 Q. Does that mean that even if the state were
2 to eliminate all of its own air emissions of mercury, if
3 mercury emissions were coming into the state from
4 another state that continued to cause an exceedence of
5 mercury in fish tissue level standards, that waterbody
6 would continue to be designated as impaired?
7 A. Yes.
8 MS. GEERTSMA CONTINUES:
9 Q. Turning that question around, is it
10 possible that emissions from Illinois power plants would
11 then be contributing to causing TMDL levels in other
12 states bodies of water?
13 A. It's possible, yes, because, as we all
14 know, the air deposition doesn't stop at the boundary of
15 the state.
16 MADAM HEARING OFFICER: Mr. Harrington.
17 MR. HARRINGTON CONTINUES:
18 Q. Have you evaluated other sources of
19 mercury to the Illinois waterways, such as stream
20 overflows, adequately.
21 A. We have evaluated what is loading from
22 point sources. Primarily, from waste water treatment
23 plants that are required to monitor their discharges,
24 and we have that information that I will get to a little
Page54
1 bit later in my testimony, so yes, we have looked at
2 that.
3 Q. What about combined sewer overflows?
4 A. Typically, those are not required to test
5 for mercury, don't have that data.
6 MS. BASSI CONTINUES:
7 Q. If you implement -- following up on
8 something that Mr. Bonebrake was saying a bit ago, if
9 you implemented a TMDL that relies on reductions that
10 you can control -- in other words, those within the
11 state of Illinois, and you still have impaired waters
12 after that is done, and because of transport, either
13 through water or through air pathways, is your TMDL
14 approvable by U.S. EPA?
15 A. Well, I don't know, but certainly, you
16 would do the very best you could do in your distribution
17 of the sources of loading to identify what those
18 potential ones were. I have seen a draft TMDL that
19 Minnesota has done where they identify a fair amount of
20 their nonpoint source loading as coming from outside
21 their state, air deposition loading. It hasn't yet been
22 approved by U.S. EPA.
23 Q. When a state does something like that, do
24 they account for anticipated reductions from programs
Page55
1 that have been identified? And for example, in the
2 Minnesota one, would they identify a certain level of
3 reduction they would expect to occur when the national
4 CAMR is put into place?
5 A. That's really getting more into what, in
6 the water world, we call the "implementation plan"
7 rather than the actual calculation of a TMDL. In
8 looking at other drafts or final TMDL's, there's been
9 variability as to how people with how are we going to
10 get there, and in some cases, they do specific cliff
11 talk about types of things, as Minnesota does, and some
12 of the Georgia TMDL's that I looked at, they say, "Well,
13 we expect that this is going to be a phase process, and
14 there's going to be some reductions that will occur from
15 federal rules that are going to be coming on line."
16 Q. I'm not as familiar with TMDL's, and so if
17 I understand you correctly, what you're saying is that
18 the level of specificity in a TMDL, as far as how you're
19 going to reduce the daily loading, can vary and U.S. EPA
20 may not be quite so exacting in what they approve as
21 what we have seen in SIPS, which you probably don't know
22 about?
23 A. Well, I actually know what that means, but
24 the SIP is really more analogous to what we would call,
Page56
1 in the water world, as the implementation plan for a
2 TMDL. The TMDL is just a calculation for loading, and
3 it has a factor for point source loading, a factor for
4 nonpoint source loading, seasonal variation and margin
5 of safety, and that's, basically, what U.S. EPA looks at
6 and approves.
7 Q. And so then there's a separate
8 implementation plan to reduce the TMDL down to whatever
9 your standard is?
10 A. Well, the TMDL is the load that --
11 Q. I understand.
12 A. The maximum load that you can have and
13 still meet the standards. That's, basically, what the
14 definition is. The implementation plan defines what
15 actions would need to occur to get those load
16 reductions.
17 Q. Does the action plan or the implementation
18 plan have to be approved by U.S. EPA?
19 A. The implementation does not have to be
20 approved by U.S. EPA.
21 Q. Does the State have some level of
22 obligation to achieve a TMDL or to set a TMDL that
23 protects water quality?
24 A. That is the goal. If the State does not
Page57
1 develop a TMDL within a certain time frame, then the
2 U.S. EPA is obligated to do so.
3 Q. Thank you.
4 MR. RIESER CONTINUES:
5 Q. Ms. Willhite, is this rule being proposed
6 as an implementation plan for a TMDL?
7 A. I don't believe that's -- no, but I can
8 certainly see the relationship, and that's certainly why
9 the water program of the Illinois EPA that rule would be
10 a very key component to our ability to reduce
11 impairments in the state.
12 Q. So you are not identifying to U.S. EPA
13 that this proposed rule, if adopted, would be part of
14 your implementation plan for the TMDL?
15 A. Nowhere we are -- Illinois has not yet
16 developed any mercury TMDL's, so we're a ways down the
17 road before we would need to make that kind of
18 identification to the U.S. EPA. My understanding is it
19 is primarily what Illinois will use to present to U.S.
20 EPA how they are going to implement CAMR.
21 MR. BONEBRAKE CONTINUES:
22 Q. Your testimony referred to a study in
23 Massachusetts relating to fish tissue levels and some
24 related reductions in mercury air emissions in
Page58
1 Massachusetts, and my understanding is that the state of
2 Massachusetts has submitted a proposed TMDL to U.S. EPA.
3 Do you know the status of that submission with respect
4 to U.S. EPA's approval?
5 A. As far as I know, Massachusetts has not
6 proposed a TMDL to U.S. EPA. What they have proposed to
7 U.S. EPA is, under the TMDL guidance, you can identify
8 waters as being impaired, but not propose to do a TMDL,
9 but some other plan that is going to result in meeting
10 water quality standards. In the water world, we call
11 that a 4-B Plan because that refers to the section in
12 the guidance that identifies that category.
13 Massachusetts had submitted that to U.S. EPA, and as far
14 as I know, they have not yet heard back, officially.
15 Q. Did that 4-B Plan rely upon reductions of
16 mercury emissions in the state?
17 A. I believe that they identified that
18 mercury emissions in the state was going to be part of
19 the plan.
20 Q. I think you said, to your knowledge, EPA
21 has not responded to the plan?
22 A. To my knowledge, they have not.
23 MS. WILLHITE: 14-E: "Please explain
24 what is meant by the phrase "margin of safety" and
Page59
1 describe how it is calculated. The term "margin of
2 safety" is used in the context of TMDL's and including
3 the uncertainty that accompanies the collection and
4 analysis of data and the evaluation of those data as
5 maybe conducted in water quality models. For example,
6 uncertainty may be characterized by the use of different
7 statistical ends, such as the mean, or maximum, for a
8 data set with the same analytical evaluation. Future
9 growth, also something states need to consider when
10 conducting a TMDL on this is part of the margin of
11 safety. I would say that the margin of safety is really
12 not calculated. It's a factor that's estimated. A
13 typical margin of safety factor is 10 percent. It might
14 be higher or lower, depending upon the confidence that
15 the TMDL developer has in the data set that's being
16 worked with.
17 CROSS EXAMINATION BY.
18 MR. CONSTANTELOS:
19 Q. My name is Bill Constantelos,
20 C-O-N-S-T-A-N-T-E-L-O-S. I'm really trying to figure
21 this out. What I'm curious about is, on the actual
22 methylation process, if you have a body of water and
23 mercury is coming to it from a variety of sources,
24 atmospheric, out of the ground, runoff or discharges,
Page60
1 since the methylation process is going to be different
2 waterbody to waterbody, how do you know what is the
3 amount of mercury that needs to be present that will not
4 methylate at the rate that will contaminate the fish?
5 A. Yeah. That's a good question. Ideally,
6 you set your water quality standard to address that, and
7 the way that water quality standards are set up in the
8 Clean Water Act is U.S. EPA develops a criterion, which
9 is, typically, a suggested standard and on a
10 state-by-state basis, the State can decide to use that
11 water quality standard as suggested or to vary it in
12 some way based on whatever kind of factors the State
13 needs to take into consideration in setting that
14 standard, but we have found -- in later responses to my
15 questions, we'll address that -- that the suggested
16 standard -- the water quality criterion that U.S. EPA
17 suggests and that Illinois EPA adopted doesn't have a
18 lot of relationship, necessarily, on an across-the-board
19 basis. Water work as we discussed here is very, very,
20 very site specific, very waterbody specific. The end
21 point of interest for fish consumption is the amount of
22 methylmercury in tissue. U.S. EPA is in the process of
23 developing a suggested standard based on tissue level of
24 methylmercury for states to consider if that's how they
Page61
1 want to -- how they want to set their water quality
2 standards. It is difficult to identify what your end
3 point for your model is going to be, given all of those
4 factors.
5 Q. When you normally do a TMDL, you're taking
6 the loading, and you can calculate the amount of
7 material that will manifest itself in the water column,
8 and see if you are over the water quality standard or
9 you're not. In this case, you have water that is
10 entering -- I don't know if its environment is subjected
11 to methylation by bacteria, and it may be that you can
12 remove all air sources and still have enough in those
13 environments to methylate, contaminate the fish and
14 cause it not to be fishable.
15 MADAM HEARING OFFICER: Is that a
16 question, sir?
17 MS. WILLHITE: Actually, we have seen
18 a study that suggests that sediment doesn't act as a
19 reservoir that continues to feed the bioaccumulation of
20 methylmercury and fish tissue that's recently deposited
21 within weeks to months, to maybe a year, is what is most
22 important in a methylation bioaccumulation process.
23 MR. CONSTANTELOS CONTINUES:
24 Q. Sediment that's covered you are going to
Page62
1 have runoff from surrounding environments, mercury in
2 the soil. There can be other nonpoint sources, and
3 then, clearly, in a lake system when you have spring and
4 fall, those things turn over, and the lake becomes
5 heterogeneous, and you have actually resuspended the
6 mercury sediment. In quiescent parts of lakes, you
7 won't have that, but normally --
8 MADAM HEARING OFFICER: You are
9 getting beyond questions --
10 MR. CONSTANTELOS: What I'm really
11 driving at is, if you don't know how much mercury you
12 need to limit to in order to meet the TMDL --
13 MADAM HEARING OFFICER: I also think
14 that question is probably one that's more appropriate
15 for a situation where we're determining what a TMDL is.
16 If you can give a short answer, that would be great, but
17 we need to get back on topic here. I think we have
18 gotten pretty far field.
19 MS. WILLHITE:
20 A. You have to have some sort of end point
21 that you are pointing at in order to view the TMDL
22 calculation you have to have some sort of numerical end
23 point that you are aiming at, which is one of the
24 challenges in viewing mercury TMDL's. It's one of the
Page63
1 challenges in doing a TMDL. For example, nutrients, if
2 you don't have a nutrient standard, if you don't have a
3 phosphorus standard, it's very difficult to use the
4 models for doing the TMDL calculation without that end
5 point, so those states that have done TMDL's come up
6 with a number that they believe is what they are aiming
7 at and that's how they calculate the TMDL.
8 MADAM HEARING OFFICER: Question 15,
9 then.
10 MS. WILLHITE: We're to 15. "In the
11 second full paragraph of page two of Ms. Willhite's
12 testimony, she states that `when a waterbody is not
13 supporting the fish consumption use, then the waterbody
14 is identified as impaired and is placed on the 303-D
15 list.' A, what does "fish consumption use" mean?" The
16 answer is fish consumption use is one type of beneficial
17 use that the state may designate for a waterbody under
18 the Clean Water Act, Section 303-C-2A. B: "With
19 respect to mercury, is the nonsupporting fish
20 consumption use the only basis upon which the Agency has
21 listed waterbodies in the state of Illinois as
22 impaired?" That's the answer I gave you earlier. It's
23 the current version of the Illinois EPA assessment
24 database, and this is the database that we use to
Page64
1 accumulate the results of our assessment of waterbody
2 condition mercury is identified as a potential cause of
3 impairment for 78 what we call assessment units and an
4 assessment unit is a specific stream segment, or it's a
5 lake. So to repeat, mercury is identified as a
6 potential cause of impairment for 78 assessment units.
7 Fish consumption use was impaired in 75 of these due to
8 excessive mercury in fish tissue. Aquatic life use was
9 impaired in three of these assessment units due to
10 primary criteria, other than mercury. However,
11 excessive mercury or water sediment was identified as
12 one of the potential causes of aquatic life impairment.
13 15-C: "If not please identify all the sir calms under
14 which the" --
15 MR. BONEBRAKE CONTINUES:
16 Q. What were those three assessment units?
17 A. I don't have that in front of me, but I
18 can try and get that for you.
19 MS. WILLHITE: 15: "If not, please
20 identify all the circumstances under which the Agency
21 has listed a waterbody as impaired with respect to
22 mercury." So I answered that in B. 15-D --
23 DR. HORNSHAW: I'm going to take the
24 rest of 15. "What concentration of mercury or
Page65
1 methylmercury in fish tissues demonstrate that a
2 waterbody is not supporting the fish consumption use?"
3 We have already discussed this. It's greater than .05
4 milligrams per kilogram in tissue. E: "Has this number
5 changed over time?" I can't answer this directly
6 because I've only been involved with the Fish
7 Contaminant Program since the late 80's. I've been told
8 by the previous chairmen of the Fish Contaminant Program
9 that initially, when the Fish Contaminant Program
10 started in the mid 70's, they used the one milligram per
11 kilogram action level that the Food and Drug
12 Administration uses for commercial fish. That was
13 changed by the Department of Public Health to .5
14 milligrams per kilogram in the late 80's prior my
15 involvement with the Fish Advisory Program, and we
16 switched over to the current risk-based approach based
17 on the Great Lakes Protocol in late 2001 for the 2002
18 advisories. "When did that last change?" I just
19 answered that.
20 MR. BONEBRAKE CONTINUES:
21 Q. Dr. Hornshaw, if I understood your answers
22 correctly, does that mean that any waterbody in which
23 fish tissue mercury levels have been identified through
24 sampling above .05 parts per million will be identified
Page66
1 as impaired waters in the state of Illinois?
2 A. That's correct.
3 MR. RIESER CONTINUES:
4 Q. Yeah, Dr. Hornshaw, I understand you're
5 not a lawyer. Are you aware of any statutes that give
6 authority to the Illinois EPA or the Illinois Department
7 of Public Health to issue fish advisories?
8 A. There are none.
9 Q. And when you talked about how these fish
10 advisories are changed at different points, does that
11 process go through some type of rulemaking process?
12 A. No, it doesn't.
13 Q. So these are changed without any notice to
14 the public and opportunity to comment?
15 A. That's correct.
16 MADAM HEARING OFFICER: Ready for
17 Question No. 16. Ms. Bassi.
18 MS. BASSI CONTINUES:
19 Q. I'm sorry. If there's no statute or
20 regulatory process that underpins the fish advisories,
21 are these -- are the criteria or the -- whatever is used
22 to establish a particular fish advisory -- explored,
23 such as for mercury when you go through the process of
24 doing the TMDL? I mean, is there ever any kind of
Page67
1 public input.
2 A. Yeah. I would say that's probably less
3 with the TMDL process, but our listing process
4 definitely goes through public comment and a hearing,
5 and starting this year -- we do these every two years
6 assess the waters, analyze those that are impaired.
7 Starting this year, the assessment and the listing of
8 impairments are one report, so the whole thing goes
9 through public comment and public hearing, and very
10 clearly, we define what and how the fish consumption
11 advisories are developed in Illinois.
12 MS. GEERTSMA CONTINUES:
13 Q. I was just wondering if there are any
14 consequences for not following a fish advisory.
15 A. Not that I'm aware of. Just advice.
16 Q. So if the process described in another
17 process, would that subsequent description provide
18 people who are interested in how the advisories are
19 being set, would that give them information as to where
20 they could submit their comments on how the advisories
21 are set?
22 MS. WILLHITE: Since the discussion
23 of -- we described the link between a fish consumption
24 advisory for a specific waterbody being determined and
Page68
1 what that means to our decision about impairment of the
2 waterbody in our integrated report related to assessment
3 and recording of impaired waters. And that certainly is
4 an tunnel for the public to comment. Since that's
5 mentioned in there very explicitly, I would assume that
6 would be an opportunity for the public to comment on the
7 process of setting advisories.
8 MR. RIESER CONTINUES:
9 Q. Is one of the means by which the Agency
10 determines that a waterbody is impaired is if the
11 sediment within that waterbody is of water quality
12 standards?
13 DR. HORNSHAW CONTINUES:
14 A. Yes.
15 Q. The water quality standards, of course,
16 are set by the Pollution Control Board?
17 A. Yes.
18 Q. And then one of the other means that the
19 EPA the IEPA has determined a waterbody is impaired is
20 by the fact that a fish advisory has been issued. Is
21 that correct?
22 A. Yes.
23 Q. And so because once the IEPA determines
24 that a waterbody is impaired, then it takes this action
Page69
1 of developing a TMDL?
2 A. Correct.
3 Q. So that would be the legal consequence of
4 the waterbody being impaired and the legal consequence
5 of there being a fish advisory established?
6 A. Yeah, but the TMDL list is not a binding
7 thing. The TMDL for point sources is implemented
8 through a discharge permit for point source. There is
9 no binding -- there's no permit for runoff, so the TMDL
10 identifies the loading that would contribute to the
11 impairment, but there's no, on the nonpoint source side,
12 really no binding legal consequence in the same way that
13 having a permit sets in place enforceable conditions.
14 Q. But the TMDL would set -- what would be
15 used to implement a TMDL would be used to establish
16 additional permit limitations that otherwise would not
17 be required in an --
18 A. If a point source needs to be reduced in
19 order to meet the TMDL level.
20 MADAM HEARING OFFICER: Question 16.
21 DR. HORNSHAW: I'm going to take 16.
22 "In that same paragraph, Ms. Willhite states that the
23 statewide advisory is based on methylmercury being found
24 routinely at levels of concern in predator fish tissues
Page70
1 collected from throughout the state. With respect to
2 this statement, A, have fish tissue samples collected by
3 the Agency been analyzed for methylmercury, as opposed
4 to total mercury or some other form of mercury?" I
5 believe I have already answered this. We assume it's
6 all methylmercury.
7 MR. BONEBRAKE CONTINUES:
8 Q. Just a follow-up. Dr. Hornshaw, you're
9 answering a question that was directed to a quote from
10 Ms. Willhite's testimony. Ms. Willhite, do you have a
11 basis, then, for the statement that was made in your
12 testimony?
13 MS. WILLHITE: Let me just read it
14 real quick. Yeah. This is actually a quote from what
15 we say in our report on conditions of waters, as we
16 mentioned, involves incorporating our process for fish
17 consumption advisories.
18 DR. HORNSHAW: B: "If those samples
19 have not been specifically analyzed for methylmercury,
20 does the Agency make any assumption about the percent of
21 mercury detected that is methylmercury?" I have also
22 answered this. Yes. "If so, what assumption?" Greater
23 than 95 percent of total is methylmercury. D: "What
24 does "routinely" mean?" Our original review of the bass
Page71
1 and the walleye data show that nearly two-thirds to
2 three-quarters of all samples have mercury that would
3 require some kind of restricted consumption advisory,
4 and David, you asked about this yesterday, and I did
5 bring copies of what I presented to the Fish Contaminant
6 Group at our meeting in September of 2001. Did you want
7 me to admit those now?
8 MR. RIESER: Yes, please, that would
9 be great.
10 DR. HORNSHAW: There are three
11 settings of tables. Did you want to make those three
12 individual exhibits or as part of one exhibit?
13 MADAM HEARING OFFICER: Let's make
14 them individual exhibits. We heave been handed --
15 MR. KIM: That would be offered as a
16 group exhibit, not three separate exhibits just --
17 MADAM HEARING OFFICER: I would prefer
18 to enter them as three exhibits. Let me just explain
19 that there is a reason for that. When it comes to
20 writing the opinion and order, if we cite to an exhibit,
21 if we have these as a group exhibit, then you have to
22 say "12-A Exhibit," so if you give an individual numbers
23 then I cite to them just as an exhibit, so I prefer to
24 enter everything as an individual exhibit, so we will
Page72
1 start with the summary for -- we'll do that as Exhibit
2 12, if there's no objection. "Summary Information of
3 Mercury -- "Summary Information for Mercury in Crappy
4 Sections" we will enter as Exhibit 13, if there's no
5 objection. And "Summary Information for Mercury in Bass
6 Samples" admit as Exhibit 14, if there's no objection.
7 Seeing no objections, those exhibits are admitted.
8 (Exhibit 12, 13 and 14 were admitted.)
9 MR. KIM: I apologize. Did you say
10 after admitting those -- we are going to finish, do the
11 rest of question 16? We have one more document. It's a
12 document that Mr. Sprague referred to. I can offer that
13 after we get done with this.
14 DR. HORNSHAW: Where was I? 16-E
15 (sic).
16 MADAM HEARING OFFICER: Did we have an
17 answer to 16-D?
18 DR. HORNSHAW: That's what I'm doing,
19 16-D. As I said, we had the annual meeting of the fish
20 Contaminant Program in September of 2001. First of all,
21 we had to decide how best to incorporate the reference
22 dose for methylmercury, instead of at that time what was
23 enforce at that time, the .5 milligram per kilogram
24 criteria, that the Public Health had developed in the
Page73
1 late 70's. We decided, yes, we were going to do that,
2 and do it as the Great Lakes Protocol instructed us how,
3 and there are five consumption categories, unlimited;
4 one meal per week; one meal per month; one meal every
5 other month; and do not eat, and all that information I
6 have already discussed is in Table 4.2 and 4.3 of the
7 Technical Support Document, and after we made that
8 decision, we had to decide how to address the mercury
9 data and fish samples that we had accumulated to date,
10 and I believe I misspoke yesterday when I answered your
11 question, Dave. I said I prepared these tables from all
12 the data available, and that's actually, from 1988,
13 through 2000, the data that were available at that time.
14 There was some data prior to that, but I didn't have a
15 lot of access to early data, and I'm not sure of the
16 quality of it because it was done by other labs, as I
17 have testified. I'm going to answer other questions,
18 but the data for 1985, on, was done strictly by the
19 Illinois EPA lab or contract lab under our control, so
20 that's the data I have most confidence in, and that data
21 starts, basically, at 1988, so this is what the Fish
22 Contaminant Group had available in late 2001, and what
23 we did was look at -- if you will see at the end of each
24 species, there's a column or a row that says, "Percent
Page74
1 in each group; percent in advisory group." What's
2 especially important is the one that says "Percent and
3 Advisory Group" and for your information, "BDL" means
4 below detection limit. Group one is the unlimited
5 group; Group 2 is the one-meal-per-week group; and Group
6 3 is the one-meal-per-month group. If you look at Group
7 2, plus Group 3 for each species, you will see it's in
8 the range of two-thirds to three-quarters of all the
9 samples available at that time, all waters, all samples,
10 so that's how we decided that a statewide advisory was
11 needed at the one meal per week. From the best
12 professional judgment of the members of the committee,
13 that was the most appropriate way to describe the
14 predator data, so that's how we did that advisory. I
15 had, as a follow-up to this, the data for largemouth
16 bass that's presented in the Technical Support Document
17 I would say strongly confirms the findings that we came
18 up with in 2001 in that the statewide means for this
19 larger and more recent data set, and there's two
20 different ones. One was used in one half the detection
21 limit to represent the nondetect samples in that
22 statewide mean was .17 milligrams per kilogram, and if
23 you use the full detection limit of .1 parts per
24 million, then the statewide mean is 1.9. These values
Page75
1 are well within the .06 to .22 range for the
2 one-meal-per-week advisory, so I would submit that the
3 initial decisions we made in 2001 had been born out by
4 more recent data in a larger data set. I hope that
5 answers D.
6 MADAM HEARING OFFICER: Any follow-ups
7 on D? Mr. Bonebrake.
8 MR. BONEBRAKE CONTINUES:
9 Q. I was going to say I think you mentioned
10 that we would have an opportunity to ask some more
11 questions about this table tomorrow.
12 MADAM HEARING OFFICER: Since it is
13 getting to be five o'clock. We will stop here at D an
14 give you guys time to look at them over tonight.
15 MR. RIESER CONTINUES:
16 Q. Let me just ask a couple questions about
17 the tables, themselves, to make sure I understand it.
18 Looking at the bass samples -- well, first of all, each
19 of them says "1988, to the present," and in fact, that
20 should be 1988 to 2000.
21 A. "The present" meant the meeting that we
22 had in September of 2001. Very few of these data would
23 have been from 2001, so it would be primarily 1988
24 through 2000.
Page76
1 Q. In each of the columns -- well, the many
2 of the numbers -- there are a set of numbers in
3 parenthesis. Is that the range of values that you found
4 within that group?
5 A. No; no. That's the size range of the fish
6 in that group in inches, so for instance, the very first
7 entry in largemouth bass for lakes -- the Fox Chain,
8 lakes in Group 2, there were five samples from the Fox
9 Chain in that time period, and those samples ranged from
10 12.6 inches to 16.4 inches. This was important
11 information for the fish committee because it's a
12 well-known fact that the length of the fish is a good
13 predictor of mercury contamination. The older the fish,
14 the longer it's been able to eat contaminated pray, so
15 the more mercury it's going to have in its tissues. The
16 case length made a difference in how we were going to
17 issue an advisory, so that information was given for the
18 group to use.
19 Q. Another question is it's my understanding
20 that you took some of the fish that were listed as being
21 BDL, below detection limits and placed them in Group 1.
22 Is that correct?
23 A. That's because the average concentration
24 is what's important in most of our fish advisories. And
Page77
1 since below detect limit you can't factor that in, I
2 made the assumption that half of the samples were at
3 less than or -- the detection limit at that time was .1
4 million grams per kilogram for all, but a very few
5 samples -- and a common assumption is that when you
6 don't have that value, the central tendency of the
7 unknown value is around one half of the detection limit,
8 so I put half of the group that was BDL in Group 1,
9 which has an upper limit of .05 milligrams per kilogram,
10 and the other half in Group 2 where the assumption was
11 that half of the fish would be between .06 and .1.
12 Q. So what number is in BDL?
13 A. Again, using the Fox Chain example, five
14 of the samples were less than .1 milligrams per
15 kilogram.
16 Q. So they all ended up in Group 2?
17 A. No. As I said, half went to Group 1.
18 Half went to group 2 for the purpose of calculating
19 percent in each level I assume half of the fish that are
20 listed as below detection limit would be in the
21 eat-all-you-want group, and half would be in the
22 one-meal-per-week group for purposes of summary
23 statistics.
24 MR. BONEBRAKE CONTINUES:
Page78
1 Q. Just a related clarification to make sure
2 that we have a proper understanding as we consider it
3 some more this evening, your Group 1 column then
4 represents the results of fish tissue sampling with
5 mercury levels between zero and .05. Is that correct?
6 A. That's correct.
7 Q. And Group 2 is .06 to .1 parts per
8 million?
9 A. That's correct.
10 Q. And Group 3 is .89?
11 A. .95.
12 Q. I'm looking at a footnote -- or table of
13 page four on your bass table.
14 A. That would be correct, then.
15 Q. So .89 would have been correct?
16 A. I can't remember if that was an error on
17 my part because the actual value was .95 or if that was
18 the maximum value in detected. I just don't remember.
19 I think it's probably an error on my part, and it should
20 have been .95 because that's the actual range that was
21 used.
22 MS. BASSI CONTINUES:
23 Q. Do you have more on the statement -- I had
24 just one other question. It still wasn't clear to me
Page79
1 what the difference was between the bottom two rows
2 percent in each group and percent in advisory group on
3 your tables.
4 A. Percent in each group is just a percent
5 that would be in the below detection limit group, Group
6 1, Group 2, or Group 3 should sum to 100, and then
7 percent in each advisory group you can't put the BDL's
8 into an advisory group because you don't know what the
9 concentration is, and that's why I had to do the math
10 that I described to David, and that resulted in
11 percentage in Group 1; Group 2; and Group 3 over all the
12 samples we had for a particular species in that time
13 frame.
14 Q. I will be quick. So then your answer I
15 think all of this is in response to Question 16-D in
16 which we asked, "What does routinely mean?"
17 A. I was hoping that would answer that. I
18 don't know how better to answer it.
19 Q. But was this a one-time thing or is this
20 something now that you do routinely?
21 A. Like I just said, the new information from
22 the TSD confirms what we did then because the average
23 falls right in the middle of the point O 0 to point the
24 2 range for bass samples in much larger and more
Page80
1 coverage across the state data set.
2 Q. But it sounds like, from what you are
3 saying, then, that the sampling process is not something
4 that is done on a continuing basis at some set interval,
5 but rather than it was done for you to gather data for
6 this table for this meeting in 2001, and then you
7 updated the data for the TSD. Is that correct? Do you
8 do this all time or did you do it just for these
9 purposes?
10 A. Do you mean collect samples for the Fish
11 Advisory Program?
12 Q. Yes.
13 A. I go into great detail answering one of
14 the questions directed to me. The short answer is, from
15 1997, on, we tried to get 400 samples per year, so yes
16 it's a routine monitoring program.
17 Q. Thank you.
18 MADAM HEARING OFFICER: Mr. Kim, you
19 had one more exhibit you wanted to admit today.
20 MR. KIM: I can do it tomorrow
21 morning.
22 MADAM HEARING OFFICER: We will resume
23 at nine a.m. tomorrow morning.
24
Page81
1 CONTINUATION OF
2 MARCIA WILLHITE FROM 6/13:
3 MADAM HEARING OFFICER: Good morning.
4 Again, my name is Marie Tipsord, and I'm the hearing
5 officer in this proceeding, RO6-25. This is day three
6 of the hearing. Again, we will continue day to day
7 starting every day, until nine. Tomorrow we will begin
8 at nine, and recess around 10:30 and break, until about
9 12:30 or one, depending on where we're at.
10 During the breaks, I'm available to
11 answer any questions. You may ask procedural questions
12 of Tim Fox and Erin Conley, and any media inquiries
13 should be directed to Connie Newman. My panel today is,
14 on my left Dr. Tanner Girard; to my right, Board Member
15 Andrea Moore, the presiding board members, and at the
16 far right, Nicholas Melas, a board member. Today Tom
17 Johnson and Anand Rao are in Joliet at a hearing on
18 site-specific rulemaking, so they could not be here
19 today, but we do have Alisa Liu from our technical unit
20 today on my left. Connie Newman and Erin Conley, and I
21 think that covers the board staff today. Dr. Girard,
22 anything to add?
23 DR. GIRARD: No, just good morning and
24 thank you for coming back. Good to see everybody and
Page82
1 let's get to work.
2 MADAM HEARING OFFICER: Ms. Moore?
3 MS. MOORE: Moving along.
4 MADAM HEARING OFFICER: And I believe
5 we're at Dynegy's questions of Marcia Willhite, Question
6 No. 16, D into E, but Mr. Kim, you wanted to enter an
7 exhibit first, correct?
8 MR. KIM: Yes. This is a carry-over
9 from Mr. Sprague's testimony. I believe he made
10 reference to a document. There's some questioning
11 concerning a 6 percent figure that he provided and this
12 is the document that he was referring to.
13 MADAM HEARING OFFICER: Mr. Kim, we
14 need, at least, four copies of exhibits when you hand
15 them to us.
16 MR. KIM: I'm sorry. Can we give
17 those to you at the next break?
18 MADAM HEARING OFFICER: Yes. For the
19 record, this is "Blood Mercury Levels in Young Children
20 and Childbearing Aged Women in the United States, 1999
21 to 2002" published November 5, 2004. If there's no
22 objection, we'll mark this as Exhibit No. 15. Seeing
23 none, it is Exhibit No. 15.
24 (Exhibit No. 15 was admitted.)
Page83
1 MADAM HEARING OFFICER: I think we are
2 ready to begin -- you have to speak directly into that
3 one.
4 DR. HORNSHAW: I will do that. Did
5 you want to ask if there's questions for 16-D or should
6 I --
7 MADAM HEARING OFFICER: That's okay.
8 Are there any follow-ups? Mr. Bonebrake.
9 MR. BONEBRAKE CONTINUES:
10 Q. Yes, Dr. Hornshaw, I had some follow-up
11 questions pertaining to the tables, three tables that
12 were presented yesterday by you, and I thought perhaps
13 we could use Exhibit 13, which is your table relating to
14 crappy samples.
15 A. Okay.
16 Q. I just want to make sure that I fully
17 understand the information that is on this table. Is
18 this correct, based upon this table, that 70 percent of
19 all crappy samples between 1988 and 2001 were below
20 reduction levels?
21 A. That's correct.
22 Q. And 10 percent of the samples during that
23 period of time were at or below .05 parts per million?
24 A. You're talking about just lakes now,
Page84
1 right?
2 Q. We are talking about lakes. Thank you for
3 the clarification.
4 A. The answer I gave you before was the total
5 data set. The answer is yes to lakes for both questions
6 you have asked so far.
7 Q. So a total of 80 percent of the crappy
8 samples from lakes, between the period of 1988 and 2001,
9 were either nondetects, or below .05 parts per million?
10 A. Correct.
11 Q. And .05 parts per million is that the
12 current most stringent numeric fish advisory level?
13 A. Yes. That's the upper limit of where we
14 can say you can eat all you want.
15 Q. With respect to rivers, during the period
16 of 1988 to 2001, were a total of 76 percent of crappy
17 samples below the deduction level?
18 A. No. That's all waters.
19 Q. So 100 percent were below?
20 A. 100 percent of five samples.
21 Q. So in fact, for rivers, then, we had, for
22 the crappy samples between 1988 and 2001, there were no
23 samples with reduction levels of mercury.
24 A. That's correct . All five samples were
Page85
1 nondetects.
2 Q. If I understood it yesterday, you were
3 making the assumption in connection with decision making
4 that flowed from the information on these tables that a
5 fish that contained nondetectable levels of mercury, at
6 least, half of those fish were -- had mercury, in fact,
7 at 50 percent of the detect limit?
8 A. That's the assumption we made, yes.
9 Q. And the other half had mercury at the
10 detection level?
11 A. Somewhere between .06 and the detection
12 level, yes. That's how we wound up with 50/50 in group
13 one and group two, by that assumption.
14 Q. Was there data available to you, crappy
15 fish sampling data, available to you for the period
16 prior to 1988?
17 A. Probably. The database I use, for some
18 reason, does not contain mercury results from the
19 beginning of the Fish Contaminant Program in 1974
20 through about 1982 or 1983, so I would have to go back
21 to a printout that I asked for from the people who run
22 the Storet database, which I have questions asked of me
23 later, to look at what was detected in all of those
24 early samples and I haven't gone through it. It's a
Page86
1 printout about that big because there was a lot of
2 samples run in early years for mercury, and I just
3 haven't gone through those to find out what crappy data
4 there are.
5 Q. I think you just mentioned the time period
6 1974 to around 1983?
7 A. In that, roughly, time period.
8 Q. Were there additional crappy samples
9 between `83 and `88?
10 A. I couldn't tell you. There may have been.
11 There were very few samples run on any species during
12 that time period.
13 Q. Again, to your knowledge, similarly, were
14 there walleye and bass samples collected during the
15 period of 1974 and 1983?
16 A. Lots of them, yes, especially bass.
17 Q. Do you have that data?
18 A. It's all in that big printout that I just
19 mentioned in Storet. I don't have that in the personal
20 database that I have.
21 Q. It sounds like we may talk some more about
22 that when we get to some related questions for you.
23 A. Okay.
24 MADAM HEARING OFFICER: Mr. Zabel.
Page87
1 MR. ZABEL CONTINUES:
2 Q. I'm not sure I understand that correctly.
3 Group one is unrestricted. Is that correct?
4 A. That's correct.
5 Q. Group 2 has advisories for it?
6 A. Correct, one meal per week.
7 Q. If we assign a portion of the nondetected
8 fish at group 2, we will always have advisories, won't
9 we?
10 A. Not necessarily. We make the assumption
11 in the Fish Contaminant Program that the nondetect
12 samples are around .05 parts per million after detection
13 limit, so if that's the case, then -- if we have all
14 nondetect data for a fish species for a particular body
15 of water, we will not put that on an advisory, so our
16 assumption is the average of all the nondetect values is
17 around .05, which is the upper limit.
18 Q. I'm sorry. Now I am confused. I
19 understood that, if you had six samples below the
20 detection limit, you assign half of them to group one
21 and half of them to group two.
22 A. Only for the purposes of this exercise.
23 When we were trying to figure out what we were trying do
24 with the fishery data we had at the time, we decided to
Page88
1 make a change-over.
2 Q. But having assigned half of them to group
3 2, that creates an advisory?
4 A. What we were trying to do with this data
5 is figure out where the bulk of the samples lie in the
6 main data set, so that if we decided to issue an
7 advisory statewide, we had to be comfortable that the
8 majority of the waters in the state, the predators in
9 the waters of the state, required some kind of an
10 advisory, and in order to deal with nondetects we had to
11 make some assumptions about the distribution of values
12 that were below the detection limit in order to place
13 them into groups for the purposes of our deliberations.
14 Q. But as long as you do that, aren't we
15 going to have fish advisories for all the fish that are
16 below the detection limit?
17 A. As I said, if we have a bunch of fish that
18 are all nondetect when we're making actual decisions
19 about placing individual waters on an advisory or not,
20 if all the values are nondetect, we make the assumption
21 that the average concentration is .05, and we won't put
22 that water on the advisory. This stuff on these table
23 was a one-time-only deal to look at values across the
24 state, not to look at individual waters.
Page89
1 Q. Well, I guess I still don't know how we're
2 going to avoid the problem of below the detection limit
3 going forward, then.
4 A. What do you mean by "going forward"?
5 Q. You're continuing to sample fish. Is that
6 correct?
7 A. That's correct.
8 Q. You are continuing to get results for, at
9 least, some of those fish that are below the detection
10 level?
11 A. Not very anymore. Last year -- I'm sorry,
12 2004 -- the lab made some upgrades in the mercury
13 analytical equipment and the detection limits are now
14 around .01 to .03.
15 Q. So you don't have the BDL problem as the
16 detection limits get more precise?
17 A. That's correct.
18 MADAM HEARING OFFICER: Mr. Bonebrake.
19 MR. BONEBRAKE CONTINUES:
20 Q. It might be useful to clarify, when we
21 talk about the term "nondetect" what does "nondetect"
22 mean?
23 A. It means that the sensitivity of the
24 equipment only allows the analyst to look so far down on
Page90
1 the concentration curve that's set up, and once you get
2 below the level that's accurate, then, if there is a
3 signal there, but it doesn't meet the requirements of
4 the lab protocol, that value will be marked with a
5 J-code, which means detected, but the concentration is
6 questionable. If there is no signal there, it's given a
7 K-code, which means not detected.
8 Q. So in the circumstances where we've been
9 talking about the nondetect data that you allocated
10 between group one and group two, that means there was no
11 signal for the presence of methylmercury?
12 A. That's correct.
13 MADAM HEARING OFFICER: I think we're
14 ready to move on to E --
15 MR. RIESER CONTINUES:
16 Q. If I may, these samples that are in the
17 three exhibits, these samples were taken over,
18 essentially, a 12-year period, from 1988 to 2000.
19 A. That's correct.
20 Q. Was there one group of samplers who did
21 that work?
22 A. Almost exclusively, DNR field biologists.
23 Q. Did they operate under the same sampling
24 protocol?
Page91
1 A. Yes.
2 Q. Did they go to -- did the samples go to
3 the same lab?
4 A. They were either run by our lab -- I guess
5 the majority of these samples were run by the IEPA lab.
6 There may have been some that went through a contract
7 lab under the direct supervision of our lab, if there
8 was not enough laboratory capacity at a particular time.
9 We try to have them run through our lab, if possible.
10 Q. And in looking at this collection of
11 samples over the 12-year period, did you look for
12 whether there were any changes over time?
13 A. Trends?
14 Q. Yes.
15 A. I have a much larger answer to that in the
16 questions asked of me, but I can do that now if you
17 want.
18 Q. Why don't we wait for the much larger
19 answer. Thank you.
20 MADAM HEARING OFFICER: Anything else?
21 16-E.
22 DR. HORNSHAW: "How many lakes, rivers
23 and streams in Illinois have not been sampled for fish
24 tissue mercury levels?" I believe I have answered this
Page92
1 one already prior. Since ponds and other private
2 waterbodies are not eligible for sampling in the Fish
3 Contaminant Program, I really can't answer this one.
4 MADAM HEARING OFFICER: Mr. Bonebrake.
5 MR. BONEBRAKE CONTINUES:
6 Q. Do you have an impression or opinion
7 Dr. Hornshaw, roughly, of the percentage of lakes in the
8 state that have been sampled for fish tissue mercury
9 levels.
10 A. I wouldn't even want to try and hazard a
11 guess because I really don't know how many lakes are in
12 Illinois, or ponds.
13 Q. Same question with respect to the
14 percentage of rivers in the state sampled.
15 A. Again, that's problematic. The field
16 biologists are instructed not to select samples from
17 river segments where there is no public access or where
18 there's not enough evidence of fishing, even on waters
19 that are open to the public, which are very few rivers
20 in Illinois, so that they are not going to collect a
21 sample from a small stream that either does not support
22 a viable fishing population or not really accessible by
23 Illinois anglers, so again, I don't know what percentage
24 of the total river miles in Illinois are even available
Page93
1 to anglers to fish, let alone ones that we could collect
2 a sample from that would be representative of those
3 waters.
4 MADAM HEARING OFFICER: Excuse me.
5 Maybe it's just that I haven't had enough coffee yet
6 this morning. Can you answer how many or even a
7 percentage or an idea of how many that are publicly
8 accessible? I know you don't know how many, but let's
9 say the Illinois river segments that are available.
10 DR. HORNSHAW: Those are all available
11 to the anglers, Mississippi, Ohio.
12 MADAM HEARING OFFICER: How much of
13 that stream segments -- of those river segments has been
14 tested? Can you answer that? If not, that's okay.
15 DR. HORNSHAW: I would guess all of
16 them, but I'm not familiar with how the Bureau of Water
17 segments up the river. We have a whole bunch of data
18 from the Illinois River going all the way back to the
19 beginning of the Fish Advisory Program. Some of those
20 stations are what they are termed as permanent stations,
21 and they were used for annual or semiannual sampling
22 under a previous protocol that the Fish Contaminant
23 Program operated under . There's other samples, state
24 samples stations, that may have been visited once in the
Page94
1 entire period of 1974, through 2006, called nonpermanent
2 stations, so my guess is, between the permanent and the
3 nonpermanent stations, most, if not all, of the Illinois
4 rivers have been sampled, at least, once?
5 MADAM HEARING OFFICER: Is sampling
6 data between DNR and EPA shared?
7 DR. HORNSHAW: Absolutely, and Public
8 Health, as well.
9 MADAM HEARING OFFICER: Thank you.
10 I'm sorry. I just wanted to follow along. Mr. Zabel.
11 MR. ZABEL CONTINUES:
12 Q. You say, at least, all of the Illinois
13 rivers have been sampled, at least, once. Is that once
14 per year or once forever?
15 A. Once forever.
16 Q. Over the entire time you've had maybe some
17 segments sampled just once?
18 A. That's likely, yes.
19 Q. Let me parse the other question, and maybe
20 we can get at it this way: I understand there are
21 private ponds and things that the Department or the
22 samplers don't have access to. Public lakes, what
23 percentage of those do you know have been sampled?
24 MS. WILLHITE: We have, like, 91,000
Page95
1 lakes in the state of six acres or more, and I don't
2 know the answer to how many have been sampled for fish
3 tissue.
4 MR. ZABEL: How many samples are taken
5 each year?
6 DR. HORNSHAW: Our protocol calls for
7 us to try to get 400 samples per year because that's
8 what the analytical budget allows, fish, being what they
9 will, they don't cooperate, and we almost never get the
10 400 samples. We actually overschedule to try and
11 compensate for that, but it just doesn't seem to work
12 out that way. I guess that's why they call it fishing.
13 If you caught them every time, they would call it
14 catching.
15 Q. I hope I'm not fishing, Dr. Hornshaw. 400
16 samples and there are 91,000 --
17 MS. WILLHITE: Lakes.
18 MR. ZABEL CONTINUES:
19 Q. Still bodies of water, not counting
20 rivers.
21 DR. HORNSHAW CONTINUES:
22 A. And I don't know how many of those 91,000
23 have public access. I can't really answer your question
24 of what percentage have been sampled.
Page96
1 MR. BONEBRAKE CONTINUES:
2 Q. When you say 400 samples, do you mean 400
3 fish samples or do you mean 400 waterbodies that have
4 been sampled?
5 A. 400 fish samples.
6 Q. So the number of waterbodies sampled might
7 be less than 400?
8 A. Much less.
9 Q. How much less?
10 A. We try to get somewhere in the range of 40
11 to 70 bodies of water each year. Well, lakes, plus
12 stream segments each year. You may get more than one
13 segment from a particular stream, especially if they are
14 doing the Illinois, Mississippi, or Ohio in a particular
15 year.
16 Q. So of the 90,000 or so lakes, in any given
17 year, you would be sampling less than 40 of them?
18 A. Yes.
19 MS. WILLHITE: Let me just add a
20 little bit to this answer to just give a general
21 overview of monitoring programs in the state. We're
22 required to assess waters as best we can. In a typical
23 year, we are assessing water quality for about 20
24 percent of the state's waters. That's what our
Page97
1 resources allow us to do. That's probably towards the
2 higher end as you look at monitoring programs across the
3 nation. That's probably at the higher end of quality of
4 monitoring programs. We sure would like to be able to
5 do better, assess more, but that's just where we are. I
6 have a question that's asked of me later, but I will go
7 ahead and answer, but I might --
8 MR. BONEBRAKE: Dr. Willhite, if I
9 may, can you identify the question.
10 MS. WILLHITE: Sure I will. I
11 appreciate the "Dr." Although it's just "Ms." The
12 question is what percentage and -- I'm sorry. I believe
13 it's 18-L, sub 1, "What percentage and number of
14 Illinois waterbodies have been, and currently, are
15 subject to fish tissue sampling, water column sampling
16 and sediment sampling by the Agency?" We answered this
17 question assuming you wanted to know the convergence of
18 what percentage of waterbodies have all three of those
19 types of sampling. And the answer is, at least, 2,800
20 miles of Illinois streams have been and are currently
21 monitored for fish tissue contaminants, water column
22 physical chemical conditions and sediment conditions.
23 These 2,800 miles comprise 4 percent of the total stream
24 miles in Illinois. There are, approximately, 98 lakes
Page98
1 in Illinois monitored for fish tissue contaminants,
2 water column conditions and sediment conditions. These
3 98 lakes represent, approximately, 3 percent of lakes in
4 Illinois.
5 MADAM HEARING OFFICER: Ms. Bassi.
6 MS. BASSI CONTINUES:
7 Q. When you say these represent 3 percent of
8 the lakes, is that the lake acres?
9 A. Number.
10 Q. The total number?
11 A. Right.
12 Q. 98 is 3 percent of 91,000?
13 A. That's what my notes said here. I'm sorry
14 you're right. The denominator is 3,256 total number of
15 lakes greater or equal to six acres. I misspoke
16 earlier. 91,000 total lakes, 3,256 is the number of
17 lakes six acres or greater.
18 MR. BONEBRAKE CONTINUES:
19 Q. Does the six acres or greater size that
20 you mentioned, does that have some regulatory
21 significance?
22 A. Not regulatory. This is DNR's
23 information, Illinois Department of Natural Resources,
24 and must have significance to them as far as category of
Page99
1 lakes.
2 Q. We've been using the terms "rivers" and
3 "streams" and we'll be talking about these terms some
4 more today. Just so we're all on the same page, are
5 these terms used interchangeably from your perspective?
6 I would ask the question of both Dr. Hornshaw and
7 Ms. Willhite.
8 MS. WILLHITE: Yeah, rivers and
9 streams are the same category the way we look at it.
10 DR. HORNSHAW: For my purposes, rivers
11 and creeks are a little bit different. For the Fish
12 Contaminant Program, anyway, we use streams to cover
13 both. The bodies are usually named either X River or X
14 Creek and if we use a generic term, we use "streams."
15 And I would like to add a little bit on to what Marcia
16 was just saying about the sample, the lakes that are
17 sampled for all three, water, sediment and fish. We
18 don't or in the Fish Contaminant Program, we schedule
19 lakes based on what we need to do to keep up with our
20 schedule and that's separate from what the Bureau of
21 Water does for sediment, and fish tissue samples, so we
22 will be collecting samples from lakes that the Bureau of
23 Water will not be collecting water and sediment samples
24 from every year.
Page100
1 MS. WILLHITE: There are lakes, and
2 streams that we sample for water quality parameters, but
3 we don't collect fish tissue samples.
4 MADAM HEARING OFFICER: Mr. Zabel.
5 MR. ZABEL CONTINUES:
6 Q. Just so I'm clear, the 2,800 miles of
7 streams and the 98 lakes that sampling, that sampling is
8 the 400 we're talking about?
9 DR. HORNSHAW CONTINUES:
10 A. It may be. The 400 samples that are
11 budgeted for the Fish Contaminant Program, we do that on
12 our own schedule. If it meshes with the Bureau of
13 Water's schedule, fine. If not, then we go to DNR to
14 collect them for us, anyway.
15 Q. As I understood the answer to 18-L, one of
16 the elements was fish tissue sampling, and that's why
17 I'm trying to make sure I understand.
18 MS. WILLHITE: When we assess a water
19 body -- and let's talk about a stream -- we do it in a
20 couple of different ways. We have fixed monitoring
21 stations that collect samples every several weeks
22 throughout the year. That's one type of data. Then we
23 have, in the summer, we've got biologists that go out,
24 and they sample chemical parameters, look at the
Page101
1 habitat. They collect the type of fish that are in
2 there to assess the quality of the biological community
3 there. If the schedule permits, and the waterbody is
4 such that it would be a fishable portion of a stream
5 river or lake, then that fish that were collected would
6 be sampled for fish tissue levels, as well, but they
7 don't always mesh. The information that I gave you is
8 the percentage of locations where we have fish tissue
9 data, water quality data and sediment quality data for
10 the same location.
11 MR. ZABEL CONTINUES:
12 Q. For that same waterbody or segment?
13 A. Right. That's how we answered the
14 question.
15 Q. So in a given year, that particular
16 segment of a stream or lake might not be fish tissue
17 sampled?
18 A. Right.
19 Q. Might not be in the 4040?
20 A. Correct.
21 MS. BASSI CONTINUES:
22 Q. Attempting to pull you two together a
23 little bit more, when Bureau of Water inspectors are out
24 collecting fish samples, as you just described, are
Page102
1 those fish samples -- are those tested in your labs
2 Dr. Hornshaw?
3 DR. HORNSHAW CONTINUES:
4 A. Yes.
5 Q. Are they used then for your program? Is
6 the data that you collect from that used for your
7 program, Dr. Hornshaw?
8 A. Yes, and I think it might clarify things
9 more to give an explanation of how we schedule the
10 samples for the Fishing Contaminant Program. The Agency
11 participated with DNR in what's called Base and
12 Intensive Surveys, and the state is divided up into base
13 basin regions, and every five years on a rotating cycle,
14 all of these major basins and sub-basins are sampled, as
15 Marcia has described, for water sediment and fish, so
16 that's one component of how we draw up the sampling list
17 for DNR each year. Another component is we follow up on
18 waters on a routine basis that have existing advisories
19 to make sure that the advisory is up to date and doesn't
20 need to be modified. We also have a hand full of samples
21 each year that are recommended for special projects,
22 such as the Clean Lakes Program, that requires fish
23 monitoring data. Then the bulk of the samples after
24 that are made up of waters that need to be sampled on a
Page103
1 rotating basis, not as frequently as the waters that
2 have existing advisories. These are waters that have no
3 existing advisories, and they are on a five- to 10-year
4 schedule for sampling or they are waters that have not
5 been sampled in a long period of time, as I described
6 earlier. There may have been only one sample in the
7 entire 1974 through 2006 period, and we try to catch up
8 on those as the sampling budget allows. So we have,
9 basically, four different ways of identifying waters
10 that need to be sampled in a particular year.
11 MADAM HEARING OFFICER: Ready to move
12 on? Question 16-F. The question is "Has the frequency
13 of water and tissue mercury --
14 DR. HORNSHAW: I was looking at the
15 one she just answered. F: "Has the frequency of water
16 and fish tissue sampling by the Agency changed over
17 time?" Yes. I have a long answer to that in questions
18 asked of me. Do you want that now or later?
19 MR. BONEBRAKE: Let's take that later.
20 DR. HORNSHAW: Then we'll put G off
21 until later, also.
22 MADAM HEARING OFFICER: Question No.
23 17.
24 MS. WILLHITE CONTINUES: 17: "Has
Page104
1 U.S. EPA ever raised any concern or issue with respect
2 to the manner or method by which the Agency has sampled
3 or analyzed water sediment or fish tissue for mercury or
4 any form of mercury?" No. So I will skip all of sub-A
5 there.
6 MR. BONEBRAKE CONTINUES:
7 Q. Just a related question, I thought I heard
8 one of you mention yesterday that there was some concern
9 about some of the data that had been collected
10 historically based upon the laboratory that had been
11 used, if I understood the answer correctly.
12 DR. HORNSHAW CONTINUES:
13 A. That was my answer, and that's an internal
14 concern to the fish contaminant program. Do you want me
15 to go into that now?
16 Q. If you could, describe that concern for
17 us, please.
18 A. Prior to 1985, any one of four
19 laboratories could have done the analytical work for the
20 Fish Contaminant Program, our laboratory, Department of
21 Agriculture laboratory, Department of Health laboratory,
22 and contract laboratory that was on retainer I guess at
23 that time period, and it's been told to me by the
24 previous chairman of the Fish Contaminant Program that
Page105
1 there were concerns raised, especially for chlordane and
2 PCB analyses because a round robin test was done among
3 the four laboratories, and there were known
4 inconsistencies between the laboratories. I don't know
5 if that inconsistency extends to mercury analyses
6 because I wasn't familiar with the program at that point
7 in time, but for the purposes of the Fish Contaminant
8 Program, I almost always limit my searches to 1985, and
9 beyond, when all of the laboratory work was done by our
10 lab or by a contract lab under supervision of our lab,
11 so for the Fish Contaminant Program purposes, I almost
12 never go back to the earlier data because of these known
13 inconsistencies.
14 Q. Have you had any concerns regarding the
15 laboratory data for the post 1985 mercury samples?
16 A. No.
17 MS. WILLHITE CONTINUES: 18: "In the
18 third full paragraph on page two of Ms. Willhite's
19 testimony, she states that according to "the latest 2004
20 Illinois list of impaired waters, there are 61 river
21 segments or 1,034 miles and eight lakes, 6,264 acres,
22 that have mercury listed as a potential cause for
23 impairment due to restrictions on fish consumption.
24 With respect to this statement, A, how many total river
Page106
1 segments and miles of river are there in the state of
2 Illinois?" The answer is, in Illinois, there are 71,394
3 miles of rivers and streams, including the large and
4 great rivers on our borders. B: "How many lakes and
5 acres of lakes are there in the state of Illinois?" And
6 the answer is, according to the Illinois Department of
7 Natural Resources, there are more than 91,400 inland
8 lakes and ponds in Illinois, 3,256 of which have surface
9 area of more than six acres, total lake acres in the
10 state number 318,477.
11 MR. BONEBRAKE CONTINUES:
12 Q. Ms. Willhite, are you familiar with the
13 2004 Illinois Water Quality Report?
14 A. Somewhat, but I don't have it in front of
15 me.
16 Q. Did you mention that there were a total of
17 71,000 miles of streams in the state of Illinois?
18 A. 671,394.
19 Q. What is the basis for that information?
20 A. I presume measurement, but I'm not
21 certain.
22 Q. I guess did you pull that information from
23 a particular document?
24 A. I presume that it was taken from the
Page107
1 Conditions of Water document. I didn't, personally,
2 look up that number.
3 Q. I believe you mentioned there were -- what
4 was the total number of lakes you mentioned,
5 Ms. Willhite?
6 A. The total number of inland lakes is
7 91,400. Those that have a surface area of more than six
8 acres, 3,256, and the lake acres, in total, for the
9 state, 318,477.
10 Q. So if we wanted to know the percentage of
11 lake acres for which mercury has been identified as a
12 potential cause of impairment in the state of Illinois,
13 we could divide 6,264 acres by 318,000 or so acres. Is
14 that right, Ms. Willhite?
15 A. Yeah.
16 Q. And similarly, if we wanted to know what
17 percentage of river segments have been identified as
18 impaired with a potential cause of mercury, we could
19 divide 1,034 miles by 71,000 miles. Is that correct,
20 Ms. Willhite?
21 A. Correct.
22 MS. BASSI CONTINUES:
23 Q. I just wondered if the lake acres and the
24 3,256 number of lakes, six acres includes Lake Michigan.
Page108
1 A. No. "Inland lakes" means within the
2 state.
3 MADAM HEARING OFFICER: Mr. Zabel.
4 MR. ZABEL CONTINUES:
5 Q. Just for the sake of clarification, lakes
6 that were sampled are all over six acres?
7 A. Yes.
8 MS. GEERTSMA CONTINUES:
9 Q. Do you have any way of estimating about
10 what percentage total lake acreage and total river miles
11 are publicly accessible?
12 A. That's not something we typically assess.
13 I'm sure there's a way of assessing that. I would
14 probably call somebody over at the Department of Natural
15 Resources, but I don't have that information.
16 DR. HORNSHAW: I can tell you that DNR
17 has told me that there are, approximately, 17 rivers
18 that have public access in Illinois. Almost all the
19 rest are, basically, private property and not legally
20 accessible to anglers.
21 MS. GEERTSMA CONTINUES:
22 Q. But these people on the public property
23 could use the river for fishing, as well. I mean
24 private property.
Page109
1 A. Only from bridges I guess.
2 Q. Let me rephrase the question. People who
3 own the private abutting those rivers are free to use
4 those rivers for fishing?
5 A. Of course.
6 MADAM HEARING OFFICER: But those
7 rivers aren't sampled.
8 DR. HORNSHAW: No.
9 MR. BONEBRAKE CONTINUES:
10 Q. The 1,034 miles or so of rivers in the
11 state of Illinois that have been identified as impaired
12 due to mercury as a potential cause, I'm assuming
13 because they have been so identified that means that
14 there has been fish tissue mercury sampling in that
15 river segment that has yielded results of greater than
16 .05 parts per million. Is that correct?
17 A. Correct.
18 Q. Does it take just one such sample, then,
19 to result in the identification of the river segment as
20 impaired?
21 MS. WILLHITE: Well, I will defer to
22 Dr. Hornshaw to answer the question about whether a
23 decision is made about fishing consumption advisory
24 based on one sample. Our impairment identification is
Page110
1 based on whether the fish consumption advisory and the
2 amount -- I'm not speaking -- I need more coffee.
3 Whether there is information that would suggest a
4 consumption advisory is needed.
5 MR. BONEBRAKE CONTINUES:
6 Q. Just so I understand that, before we turn
7 to Dr. Hornshaw, your identification, then, for purposes
8 of the 303-D report is going to depend on the answer
9 we're about to hear from Dr. Hornshaw?
10 A. Yes.
11 DR. HORNSHAW CONTINUES: I believe I
12 stated yesterday that our policy to issue -- either add
13 advisory, change an advise, or drop an advisory almost
14 always has to be based on two recent years of sampling
15 data and it can be for just one species.
16 MR. BONEBRAKE CONTINUES:
17 Q. What do you mean by "almost always"?
18 A. The advisory that we issued for the Fox
19 River, technically, was based on two samples of some
20 period of time apart about a hand full of stations. The
21 Fox River advisory was kind of unique in that it was the
22 subject of a massive investigation by DNR into whether
23 the many dams on the Fox River needed to be left in
24 place, upgraded, or taken out, so they went in and
Page111
1 generated a very large database for fish tissue
2 contaminant for this project, but it was also used by
3 the Fish Contaminant Program. The historical data for
4 the Fox River consisted, at that time, mainly, of a few
5 stations spread out across the whole length of the river
6 over time, but in this case, we had data from either 16
7 or 17 stations up and down the whole river, and multiple
8 samples usually from each station, so we determined,
9 based on the data that was available, primarily from one
10 year, but with a hand full of stations with more than
11 one year, that the entire river needed to be put on
12 advisory, so we don't have multiple years' worth of data
13 for 10 or 11 stations that were located on the river,
14 but all of the data from every one of the 16 stations
15 indicated that carp and catfish needed to be on a strict
16 consumption advisory based on PCB levels that were
17 reflected.
18 Q. Have you run into the situation where you
19 have a couple years of data, and say a sample from one
20 year is above .05 parts per million, but in the other
21 year it's either below that level or is nondetect? Have
22 you had that situation present itself.
23 A. Yes, we have. In some cases, where the
24 historical database goes back, and there's a consistent
Page112
1 record, we have decided to either issue or not issue an
2 advisory. Most often what that would do is have us ask
3 DNR to get a third sample from that water before we make
4 an advisory decision.
5 Q. In connection with making that decision,
6 what assumption, if any, does the Agency make with
7 respect to the presence of mercury in samples which were
8 below the detect level?
9 A. We assume that the value, the average
10 value, over time would be -- and over a bunch of samples
11 would be .05 parts per million, and we would not issue
12 based on that.
13 Q. But if you had that nondetect information,
14 in conjunction with the sample that was above detect and
15 above .05, would you, in that circumstance, issue a fish
16 advisory?
17 A. Like I said before, if there was other
18 historical data that indicated that an advisory was
19 needed or if there was a bunch of nondetects prior to
20 that, I would say the advisory is not needed. That
21 would be the course we would choose. If all we had was
22 the two samples, we would ask DNR to go back and get a
23 third set of sample the following year.
24 MADAM HEARING OFFICER: Mr. Zabel.
Page113
1 MR. ZABEL CONTINUES:
2 Q. You mentioned there were 16 stations on
3 the Fox River. Is that correct?
4 A. For that sampling event, yes.
5 Q. Is that included in the 2004 data that is
6 in Ms. Willhite's testimony?
7 A. I believe, but it was all PCB data.
8 Q. Not mercury?
9 A. That was of interest.
10 Q. I guess what I'm curious about is, if my
11 math is right, each segment that you refer to would
12 average about 17 miles in length. Is that correct?
13 A. I guess. I'm not that familiar with the
14 Fox River.
15 Q. I'm thinking -- I'm sorry. I'm referring
16 to Question 18 of the quotation from Ms. Willhite's
17 testimony that's in question 18. It says 61 river
18 segment at 1,034. My division it's about 17 miles.
19 MS. WILLHITE: I think the river
20 segments are a variable length.
21 MR. ZABEL CONTINUES:
22 Q. So some have a much more course analysis
23 than --
24 DR. HORNSHAW CONTINUES:
Page114
1 A. Yeah. Samples that DNR collected had
2 nothing to do with river segments. It was all centered
3 around dams, so some of those stations that's the only
4 sample that we would have ever, probably, base it's not
5 a station that we would designate as a segment.
6 Q. So there could have been two in the same
7 segment?
8 A. Oh, I'm sure there was, yes.
9 Q. Just to finish line my arithmetic
10 indicates the average lake is about 780 acres. I assume
11 some are a good deal larger and some are a good deal
12 smaller?
13 A. Absolutely.
14 MS. WILLHITE: I'm nodding my head
15 yes.
16 DR. HORNSHAW: The three Arm Corp. of
17 Engineers reservoirs are all greater than 1,000 acres,
18 something like that, for example.
19 MADAM HEARING OFFICER: Anything
20 further?
21 MS. WILLHITE: I would like further to
22 the answer simply because we did spend some time talking
23 about what percentage of rives and lakes are sampled,
24 and I think probably most people would conclude it's a
Page115
1 pretty low percentage, so we have a portion of the
2 picture, enough of the picture to call eight lakes in
3 the 1,000 miles of river or stream impaired, but it's
4 likely that much more than that are, just haven't been
5 able to get out to get the sample to be able to verify.
6 MR. BONEBRAKE CONTINUES:
7 Q. In that regard, has there been any effort
8 by the Agency to take what it views to be a
9 representative sampling of the waters in Illinois?
10 A. That's what we try to go for, given our
11 limited resources, is try to be representative in the
12 size of stream and the number of lakes, but the number
13 of locations that we do fish tissue sampling is a
14 smaller subset than what we do for other types of
15 parameters.
16 Q. Who makes that determination of what
17 sampling will be representative in any given year?
18 A. Well, our biologists, our stream and lake
19 biologists try to make that judgment as they plan
20 samples for the next year.
21 MADAM HEARING OFFICER: Mr. Zabel.
22 MR. ZABEL CONTINUES:
23 Q. Let me throw you a softball. I take it
24 the limitation on sampling is purely a budgetary
Page116
1 restriction. You would do more, if you had more money.
2 A. Yeah, you bet you.
3 DR. HORNSHAW: I will second that.
4 Let me add a little to what Marcia just said. The Fish
5 Contaminant Program tries to be representative, but
6 there are instants where we direct sampling where we
7 suspect there may be problems. For example, a lot of
8 the waters that are on the special mercury advisory are
9 in the far south end of the state, and in fact, that's
10 where the two lakes that went on a mercury advisory from
11 the beginning of the program, Cedar Lake and Kincade
12 Lake are locate, so in the last couple of years, we have
13 tried to oversample lakes and streams in the far
14 southern end of the lake (sic) to get a better idea of
15 how widespread mercury distribution is in that area of
16 the state.
17 MADAM HEARING OFFICER: Dr. Hornshaw,
18 I believe you mean the far southern end of the state.
19 DR. HORNSHAW: I'm sorry. I meant
20 state.
21 MADAM HEARING OFFICER: I just don't
22 want that to jump out at someone.
23 MR. BONEBRAKE CONTINUES:
24 Q. Has the Agency taken any effort to
Page117
1 identify why there is a need to oversample in that
2 particular area?
3 A. Just historical data that suggests that
4 the levels in the fish are higher than those waters in
5 the far end of the state, so we try to get where we have
6 the ability to schedule additional samples. We try to
7 get those in areas where we think there may be problems.
8 Q. Has there been any study or analysis
9 regarding why the mercury levels are higher in that
10 portion of the state?
11 A. Not to my knowledge.
12 MS. WILLHITE: No.
13 MADAM HEARING OFFICER: Move on.
14 MS. WILLHITE: 18-C: I'm going to
15 take C, D, E, and F together. C is: "Do figures 4.3,
16 4.4 and 7.1 in the TSD provide information concerning
17 locations of fish tissue sampling and water column
18 sampling in Illinois?" D: "Who prepared figures 4.3,
19 4.4 and 7.1 of the TSD?" E: "What is the source of
20 information of these figures: F: "Please describe
21 these figures 4.3, 4.4 and 7.1 and what information is
22 provided on these figures." The answer is figures 4.3
23 and 4.4 identify water quality sampling locations the
24 for 2004 study of mercury concentrations in ambient
Page118
1 water conducted by Illinois EPA Bureau of Water. The
2 study is described in Section 4.4.3 of the TSD. I don't
3 know what the page number is for that. Figure 4.3
4 identifies the 32 locations of lakes where samples
5 analyzed from mercury were collected and notes the two
6 lakes where mercury levels in ambient water were above
7 the water quality standard of 0.012 micrograms per
8 liter. Figure 4.4 identifies the 52 locations on
9 streams or rivers where samples analyzed for mercury
10 were collected and notes the three streams where the
11 mercury levels in ambient water were above the quality
12 water standard of 0.012 micrograms per liter. Fish
13 tissue is not collected as part of the study. The
14 Bureau of Water staff prepared the figures. Figure 7.1
15 denotes the locations of coal-fired power plants in
16 Illinois, as well as the location of rivers and lakes
17 listed as impaired on the 2004 Illinois 303-D list. The
18 figures were prepared jointly by Bureau of Water and
19 Illinois EPA Bureau of Air staff based on GIS
20 information obtained by Illinois EPA.
21 MR. BONEBRAKE CONTINUES:
22 Q. Figures 4.3 and 4.4, do those reflect
23 solely 2004 data?
24 A. Yes.
Page119
1 Q. If I understand the answer correctly,
2 then, two of 32 sample lakes and three of 52 sampled
3 streams had a mercury water quality issue, other than
4 fish tissue mercury levels?
5 A. I would phrase it that, in those
6 locations, the concentration of mercury in the water
7 exceeded the .012 microgram per liters standard.
8 MADAM HEARING OFFICER: Ms. Geertsma.
9 MS. GEERTSMA CONTINUES:
10 Q. For clarification on the water quality
11 standard that you're referencing, is that Human Health?
12 A. Yes.
13 MADAM HEARING OFFICER: That was
14 shorthand for Human Health --
15 MS. WILLHITE: Water Quality Standard.
16 MADAM HEARING OFFICER: Thank you.
17 MR. BONEBRAKE CONTINUES:
18 Q. Follow-up question on Figure 7.1.
19 A. Yes.
20 Q. Is it your view, Ms. Willhite, that
21 reductions in mercury emissions from the power plants
22 identified on that figure will result in reduced mercury
23 fish tissue levels in the impaired waters identified on
24 that figure?
Page120
1 A. Yes.
2 Q. Can you quantify for us the extent of that
3 reduction, Ms. Willhite?
4 A. No.
5 Q. I wanted to take further example -- Rock
6 River, is that identified on Figure 7.1 as an impaired
7 waterbody? Is the Rock River identified as an impaired
8 waterbody?
9 A. Yes.
10 Q. That's for mercury.
11 A. Yes.
12 Q. And on this particular figure, the power
13 plants that would be subject to the proposed mercury
14 rule, are they identified as red circles?
15 A. Not on my version.
16 Q. You have a black-and-white copy?
17 A. I do.
18 Q. I actually have a couple of additional
19 color copies, if I could give the witness -- I believe
20 this is how it was filed with the Board.
21 MADAM HEARING OFFICER: Color copies
22 were filed with the Board.
23 MR. BONEBRAKE CONTINUES:
24 Q. Just so it's clear, these are color copies
Page121
1 of Figures 7.1, 4.3 and 4.4.
2 Q. You have a color copy, Ms. Willhite?
3 A. Yes, I do.
4 MADAM HEARING OFFICER: You started to
5 ask the color about the red circles.
6 MS. WILLHITE: Now I know where the
7 red circles are.
8 MR. BONEBRAKE CONTINUES:
9 Q. Can you identify for us what's designated
10 by the red circle?
11 A. Those are existing power plants.
12 Q. And are all of the power plants identified
13 on Figure 7.1 west -- excuse me -- east and south of the
14 Rock River?
15 A. Yes.
16 Q. Do you know, in the vicinity of the Rock
17 River, Ms. Willhite, what is the prevailing wind
18 direction?
19 A. No.
20 Q. Have you looked into that issue at all in
21 connection with your testimony in this proceeding?
22 A. No.
23 Q. Would you believe that prevailing wind
24 direction would be relevant to the question of whether
Page122
1 the power plants identified on Figure 7.1 would have
2 impact on the Rock River?
3 A. I don't know.
4 Q. So your testimony is you don't know
5 whether wind direction has any connection with impaired
6 waterbodies in the state of Illinois?
7 A. I'm not certain.
8 Q. I think you mentioned, in response to an
9 earlier question, that you had not quantified the extent
10 of reductions that you would expect in mercury fish
11 tissue levels as a result of the proposed rule. Is that
12 correct?
13 A. That's correct.
14 Q. Have you done any analysis or study at all
15 with respect to what the likely extent would be of
16 reductions?
17 A. I really get into some of this opinion
18 stuff a little bit later, if you would be willing to
19 wait, until I get to those questions.
20 Q. That's okay with me. I guess, just to
21 follow up, then, we have been talking a little about
22 what quantification, or lack thereof, you may have done.
23 Has the Agency done any quantification of the expected
24 reduction of fish tissue mercury levels as a result of
Page123
1 the proposed rule?
2 A. No.
3 Q. Ms. Willhite, do you know of any evidence
4 that the -- that any emissions from the power plants
5 identified on Figure 7.1 are, in fact, being deposited
6 in the Rock River?
7 A. I will answer in a later question that I
8 have reason to believe, but I have no evidence.
9 Q. Maybe a follow-up on this line of inquire
10 with respect to the later questions.
11 MADAM HEARING OFFICER: Anything
12 further?
13 MS. WILLHITE: 18-G: What portion of
14 these impaired rivers and lakes are also listed as
15 impaired or potentially impaired due to the presence,
16 one, of PCB's; two, other nonmercury contaminants, or
17 three, any other cause." Assuming that by saying "also
18 listed" means in addition to mercury, of the 78
19 assessment units, and I defined "assessment unit"
20 yesterday as being a river segment or a lake, that have
21 mercury as a potential cause of impairment, and that's
22 the way that we phrase it. That's the way that we are
23 asked to, by 303-D process, identify something as a
24 potential cause of impairment -- 58, that is, 74
Page124
1 percent, of the assessment units that are impaired for
2 mercury also have PCB's as a potential cause of
3 impairment; 48, that is, 62 percent, of the assessment
4 units have analyzed, other than mercury, PCB's -- it
5 could include PCB's dissolved oxygen or PH as a
6 potential causes of impairment, and 31, or 40 percent,
7 of these assessment units, have other causes, but
8 unidentified as potential causes of impairment.
9 MR. BONEBRAKE CONTINUES:
10 Q. With respect to the totality of waters
11 that have been identified as impaired, do you know,
12 Ms. Willhite, do all of those waters also have
13 identified as a potential cause of impairment something
14 other than mercury?
15 A. Do you mean the total of all waters that
16 are identified as impairment, or the totality waters
17 identified as mercury impaired?
18 Q. The totality of waters identified as
19 mercury impaired.
20 A. Could you repeat the question?
21 Q. Sure. Of the waters in the state that
22 have been identified as impaired for mercury, do all of
23 those waters also have identified as a potential cause
24 of impairment some other reason, such as some other
Page125
1 contaminant?
2 A. The way these data are presented I don't
3 know that.
4 Q. Has the Agency taken any steps to prepare
5 an analysis of what would be the likely plan for
6 reductions of contaminants in impaired waters, other
7 than mercury?
8 A. Well, what you have described to me means
9 an implementation plan for TMDL. Yes. We have -- I
10 can't remember the number of -- probably, a few hundred
11 TMDL's that have been developed that include an
12 implementation plan that we have identified for
13 contaminants, other than mercury.
14 Q. I'm sorry. Did you say a few hundred?
15 A. Yeah.
16 MADAM HEARING OFFICER: Move on?
17 MS. WILLHITE: "The Agency's TSD, at
18 page 51, notes various nonpoint sources that may impact
19 water quality." H sub-1: "Has the Agency identified
20 nonpoint sources, other than emissions from electric
21 generating units, that are actual or potential nonpoint
22 sources for mercury in Illinois? If so, which of these
23 nonpoint sources contribute or have contributed to the
24 mercury present in the waters listed as impaired for
Page126
1 mercury by the Agency?" Other testimony has identified
2 the sources of mercury air emissions in Illinois other
3 than -- other testimony has identified the sources of
4 mercury air emissions in Illinois, other than coal-fired
5 power plants. The Bureau of Water has not yet assessed,
6 nor allocated, various nonpoint source contributions to
7 mercury loading to a particular impaired waterbody. That
8 would be done as part of the TMDL development process,
9 and the Bureau of Water has not initiated any mercury
10 TMDL's to date.
11 MADAM HEARING OFFICER: Ms. Bassi.
12 MS. BASSI CONTINUES:
13 Q. Just to help me along on this, could you
14 tell me which other testimony that was?
15 A. I believe Jim Ross' kind of a pie chart of
16 contributions to air emissions is located.
17 MADAM HEARING OFFICER: We also I
18 think discussed yesterday, at some length -- I think
19 that came out yesterday when we talked about the TMDL
20 that there were other nonpoint sources of mercury
21 yesterday afternoon, just to refresh your memory.
22 MS. BASSI CONTINUES:
23 Q. Pardon me, but is someone going to
24 elaborate more on what these other sources are? I mean,
Page127
1 Jim Ross' testimony, as you say, was kind of the over
2 all pie chart of what's going to be done. Is that all
3 we're going to hear on this particular topic, what these
4 other sources are?
5 A. Well, I was addressing the fact that, from
6 a water standpoint, any air emissions of mercury is in
7 the nonpoint source category, and as the process of
8 developing a TMDL, you have to figure out what the
9 loading is and understanding where it's coming from will
10 help you in the implementation part. It's not necessary
11 to allocate it, but I acknowledge that there are other
12 sources of air emissions, other than coal-fired power
13 plants.
14 MR. BONEBRAKE CONTINUES:
15 Q. Can you identify what those other sources
16 are?
17 A. Off the top of my head, I don't remember,
18 but typically, it's things like incinerators or
19 chloro-alkali (phonetic) plants or cement kelms, but I
20 don't remember sitting here what the pie chart for
21 Illinois looked like.
22 MADAM HEARING OFFICER: I believe
23 yesterday we talked about naturally-occurring things,
24 such as fires and volcanic eruptions, which can result
Page128
1 -- although we wouldn't have volcanic eruptions in
2 Illinois -- but fires can also -- this was covered
3 yesterday afternoon. It's my recall that we talked at
4 length about nonpoint sources when we talked about the
5 TMDL stuff yesterday afternoon.
6 MR. BONEBRAKE CONTINUES:
7 Q. I recall talking about nonman-made sources
8 with Dr. Rice and I'm a little fuzzier we --
9 MADAM HEARING OFFICER: I thought we
10 did yesterday, and I apologize if I'm misremembering,
11 but that was my recall. Certainly, if we could revisit
12 this, if we need to.
13 MR. BONEBRAKE: I'm trying to avoid
14 duplication.
15 MADAM HEARING OFFICER: As am I, but
16 feel free to ask your questions, but that's sort of my
17 recall. That's why I was trying to help out a little
18 bit.
19 MR. BONEBRAKE CONTINUES:
20 Q. In a follow-up, you have mentioned and
21 identified a couple of air sources of mercury emissions.
22 In addition to air sources of mercury emissions, are
23 there other nonpoint sources of mercury in the state of
24 Illinois?
Page129
1 A. I'm not certain at this time.
2 Q. Page 51 of the TSD, IEPA's TSD, in Section
3 4.1.3 is labelled "Nonpoint Source Pollution Control."
4 A. Yes.
5 Q. Did you draft that section?
6 A. I can say that I assembled that section.
7 Q. I assume that --
8 A. Actually, it's quoting, mostly, from a
9 Water Quality Conditions Report or Mercury Advisory
10 Report.
11 Q. So you are familiar with the contents of
12 that section?
13 A. Yes.
14 Q. In the second sentence reads, "Nonsource
15 pollution can result from precipitation moving over and
16 through the ground and picks up pollutants from farms,
17 cities, mine lands an other landscapes, and carries
18 these pollutants into rivers, lakes, wetlands and ground
19 water." Was it your indention, or do you know, to say
20 that those various nonpoint sources of pollution also
21 make contributions with respect to mercury?
22 A. It wasn't my intent that I would identify
23 those as sources of mercury, but rather describe,
24 generally, what is considered nonpoint source pollution.
Page130
1 I don't know today to what extent that that those types
2 of sources would be a source of mercury.
3 Q. Aside from the question of whether any
4 such contribution may have been quantified, do you have
5 an understanding or view as to whether any of those
6 nonpoint sources, in fact, contribute or may contribute
7 mercury to the waterbodies of Illinois?
8 A. Well, I tried to look -- I didn't do an
9 extensive literature search, but trying to understand
10 the idea of the possibility of runoff as a source, and I
11 didn't see in the things that I looked at that
12 identified as a large source of -- or contributing
13 source. The other TMDL's that I looked at I didn't see
14 any note that runoff was a significant source of
15 mercury.
16 Q. Is combined sewer overflow a nonpoint
17 source?
18 A. No. It's a point source.
19 MADAM HEARING OFFICER: Mr.
20 Harrington.
21 MR. HARRINGTON CONTINUES:
22 Q. Do you know whether the
23 naturally-occurring soils and minerals in Illinois
24 contain mercury?
Page131
1 A. I would imagine that soils contain a
2 portion of mercury, like they do other types of metals.
3 It seems to me, when I've seen soil samples and past
4 work that I have done, mercury is a parameter in
5 analyzing that you find, but I asked the geologist in
6 the Agency whether there were deposits in Illinois that
7 would significantly cause background or natural levels
8 of mercury to be elevated, something like cinnabar, and
9 that's something that's not present in Illinois.
10 Q. Is there mercury in coal in Illinois?
11 A. Yes.
12 Q. There is coal deposits and coal waste
13 deposits across large parts of the state, correct?
14 A. Right. The information that I got from
15 the geologist that I consulted said it, typically,
16 wouldn't be liberated from just runoff. It would need
17 to be combusted in order to be liberated.
18 MADAM HEARING OFFICER: Anything
19 further? Let's move on to I.
20 MR. KIM: As part of the answer to I
21 and K, we have some exhibits. I'm just going to give
22 those to you now.
23 MADAM HEARING OFFICER: Two pages.
24 MR. KIM: Yes.
Page132
1 MR. KIM: Ms. Willhite will identify
2 which table go with --
3 MADAM HEARING OFFICER: Let me just
4 note that you have handed me "Mercury Impaired Segments
5 in 2004 303-D List" and "The Current Level of Mercury in
6 the Sediment and the Waters Listed as Impaired Due to
7 Mercury" and we'll enter them as exhibits as
8 Ms. Willhite discusses them.
9 MS. WILLHITE: This is 18-I. "Page 68
10 of the TSD states that, of the 137 facilities with
11 mercury point source discharges into the state of
12 Illinois, quote 89 facilities fell in six major
13 watersheds, which contained waterbodies listed as
14 potentially impaired due to mercury in the 2004 303-D
15 Report." Question one, "Which impaired river segments
16 received such mercury discharges?" If you will refer to
17 the exhibits entitled "Mercury Impaired Segments in the
18 2004 303-D" lists the river segments that received
19 discharges.
20 MADAM HEARING OFFICER: If there's no
21 objection, I will mark the "Mercury Impaired Segments
22 2004" -- is that the one?
23 MR. KIM: Yes.
24 MADAM HEARING OFFICER: 303-D list as
Page133
1 Exhibit 16. Is there any objection?
2 MR. RIESER CONTINUES:
3 Q. I just have a question, not an objection.
4 Ms. Willhite, is this from the actual 303-D report or is
5 this prepared for this testimony here today?
6 A. This was prepared as part of a report that
7 I asked staff to put together last fall just to kind of
8 look at the issue of point source discharges into
9 impaired waters, so this is extracted from that.
10 MADAM HEARING OFFICER: We'll mark
11 that as Exhibit No. 16. Please continue.
12 (Exhibit No. 16 was admitted.)
13 MS. WILLHITE: So what the table notes
14 is that, of the 61 river segments identified as impaired
15 or potentially impaired due to mercury, approximately,
16 18 received discharges from about 27 facilities out of
17 the 89. It's kind of hard to follow. That actually was
18 the answer to question two. Question two -- let me just
19 go back through this again. "How many of the 61 river
20 segments identified as impaired due to mercury receive
21 or may receive discharges from these 89 facilities?"
22 And the answer is -- now on that exhibit was an
23 asterisk.
24 MR. KIM: Yes.
Page134
1 MS. WILLHITE: That's not in my
2 notes -- so on this exhibit, "Mercury Impaired Segments
3 in 2004 303-D List" the segments that are noted with an
4 asterisk identify the ones that are receiving discharges
5 from point source facilities.
6 MR. BONEBRAKE CONTINUES:
7 Q. Just a clarification, then, Exhibit 16
8 lists all of the mercury impaired segments in Illinois
9 and only those that have been identified with an
10 asterisk receive, at least, in your perspective, a point
11 source mercury discharge. Is that correct?
12 A. Directly, yes.
13 MADAM HEARING OFFICER: Could we have
14 that question actually read back.
15 (At which point, the previous question
16 was read back by the court reporter.)
17 MR. BONEBRAKE CONTINUES:
18 Q. And how were those specific 18 segments
19 identified, Ms. Willhite?
20 A. I presume that it was based on locational
21 information. We have GIS information about what the
22 segment length is and where the point source is located.
23 Q. Do you know how the determination was made
24 regarding the number of segments that would be impacted
Page135
1 by any given point source?
2 A. Well, I presume that it was made -- I'm
3 not certain because I didn't do the analysis myself, but
4 I presume it was done by, if there was a river segment
5 that contained that point on the map where the point
6 source discharge was located, that was identified with
7 an asterisk.
8 MADAM HEARING OFFICER: Mr. Zabel.
9 MR. ZABEL CONTINUES:
10 Q. I'm looking at this exhibit, Ms. Willhite,
11 just to get clarification. What do the letters under
12 the segment indicate?
13 A. I'm not completely certain, but I believe
14 that the "A" do you mean the "A-B" under the segment ID?
15 I believe that identifies the larger basin, so, for
16 example, "A" is the Ohio River Basin; "B" is the Wabash
17 River Basin; "D" -- it's an identifier to help us
18 understand where in the state it's located.
19 Q. And then the numbering, for instance, if
20 you look at the Kankakee the segment seems to be
21 sequential 01, 02, 03, 03, 04. Is that -- does that
22 mean they are geographically adjacent?
23 A. I'm not certain.
24 DR. HORNSHAW: The answer is no. I
Page136
1 don't know how the station codes are developed, but they
2 are definitely not -- one would be the top of the river
3 segment and the lowest number -- highest number would be
4 the bottom of the river segment. It doesn't work that
5 way, unfortunately.
6 MR. ZABEL CONTINUES:
7 Q. Do you think it's historic?
8 DR. HORNSHAW CONTINUES:
9 A. I believe so. I don't know how the
10 stations are assigned codes. It may be sequentially in
11 time, rather than sequentially in location. I just
12 don't know, but they are definitely location from top to
13 bottom.
14 MADAM HEARING OFFICER: Are those
15 codes assigned by DNR?
16 MS. WILLHITE: I don't know how the
17 identification system is.
18 DR. HORNSHAW: I'm not familiar with
19 how that's done, so I can't answer.
20 MS. WILLHITE: If that's important, we
21 can get the answer.
22 MADAM HEARING OFFICER: No. I'm just
23 curious.
24 MR. ZABEL CONTINUES:
Page137
1 Q. Let's take G-12 of Des Plains, which has
2 an asterisk. The asterisk indicates there's point
3 source discharge of mercury. Is that correct?
4 A. Correct.
5 Q. And G-24 could be the next downstream
6 segment, could it not?
7 A. Could be, don't know.
8 Q. So the fact that the discharge could be
9 just feet from the next segment, in fact, couldn't it?
10 A. Right. Again, I think we were just trying
11 to locate segments where the discharge exactly was, but
12 all of these segments are in watersheds that receive
13 point source discharges. All of these segments,
14 potentially, could receive discharges.
15 Q. And a segment that has an asterisk with an
16 existing --
17 A. That's where the outfall is.
18 Q. But that discharge could impact downstream
19 segments, just for geographic reasons they are listed
20 differently?
21 A. Yes.
22 DR. GIRARD CONTINUES:
23 Q. Just getting back to these segment ID
24 numbers, is there a key for the location of these
Page138
1 segment ID numbers in that 2004 303-D list.
2 A. I don't believe so.
3 Q. Could you get us a key for that, and put
4 it in the record, please? Is that an affirmative?
5 A. Yes.
6 MR. BONEBRAKE CONTINUES:
7 Q. Would Exhibit 16 include segments sampled
8 by sewer overflows?
9 A. I believe so. If we have that locational
10 information. Sometimes we don't have complete
11 locational information on the overflows.
12 Q. When you say "sometimes" can you give us a
13 sense of what you mean by that?
14 A. I just know that we haven't GPS'd all of
15 the outfalls.
16 MR. ZABEL CONTINUES:
17 Q. Are sewer overflows sampled for mercury?
18 A. No.
19 MADAM HEARING OFFICER: Anything
20 further?
21 MR. HARRINGTON CONTINUES:
22 Q. Yes. Does Exhibit 16 include the current
23 level of mercury in the sediment? The second page that
24 was handed out that's being marked as the same document?
Page139
1 MADAM HEARING OFFICER: That's a
2 different exhibit and that's the answer to her next
3 question on the part of the answer to the next question.
4 MR. HARRINGTON: I will hold my
5 questions then.
6 MR. FORCADE: I have some questions on
7 point source discharges. I don't know if it's better
8 now or at Question 49, and I'm happy to wait. We can go
9 whichever direction you want.
10 MADAM HEARING OFFICER: Should we wait
11 for 49 and we can always revisit --
12 MS. WILLHITE: 18-I, sub-3: "How many
13 of the 137 point source discharges of mercury are
14 identified by the Agency discharge into Illinois lakes
15 that have been identified as impaired or potentially
16 impaired due to mercury?" None. Are any waters in the
17 state of Illinois listed as impaired or potentially
18 impaired due to mercury for any reason other than wet
19 impairment due to restrictions on fish consumption? As
20 noted previously, we do have three assessment units that
21 were listed as impaired for aquatic life use, mainly due
22 to some other criterion, but mercury in this water or
23 sediment is listed as a potential contributor to the
24 wild life impairment.
Page140
1 MADAM HEARING OFFICER: Mr. Bonebrake.
2 MR. BONEBRAKE CONTINUES:
3 Q. Just a follow-up and it actually relates
4 to small Roman iii. One of your prior answers, I think
5 you mentioned that none of the 137 point source
6 discharges discharged to an impaired lake. Do you know
7 if there is a lake in Southern Illinois that has been
8 identified as impaired for mercury that has historically
9 received mercury contamination from mining or lab waste
10 activities?
11 A. I don't know because that wouldn't be
12 considered a point source, and the question I asked
13 staff was, "What are the point sources?"
14 MS. BASSI CONTINUES:
15 Q. Why would a lab not be a point source?
16 A. Excuse me?
17 MS. BASSI: Did you say a lab?
18 MR. BONEBRAKE: Mining or lab
19 activities is what I referred to.
20 MS. BASSI CONTINUES:
21 Q. Why would a lab or laboratory not be a
22 point source?
23 A. If it doesn't have a direct discharge
24 through a pipe, then it wouldn't be a point source.
Page141
1 Probably, I didn't quite hear him say "lab." I heard
2 "mine" and all I was thinking was runoffs, so perhaps I
3 misunderstood your question.
4 MR. BONEBRAKE CONTINUES:
5 Q. If we include "laboratory" in addition to
6 "mine" in my question, is your answer any different?
7 A. If it has a pipe and it's permitted, then
8 it's a point source.
9 Q. But if for instance there was an
10 accidental release or historical nonpermitted release,
11 the answer is you don't know?
12 A. Right.
13 MR. ZABEL CONTINUES:
14 Q. Just to close that loop, you could also
15 discharge through PRTW, could it not?
16 A. A lab?
17 Q. A lab.
18 A. Yes, and I don't think that's more
19 typical.
20 MS. WILLHITE: 18-K refers to the next
21 exhibit that was passed out.
22 MADAM HEARING OFFICER: That will be
23 marked as Exhibit 17, and if there's no objection we
24 will admit that. Seeing none, it's Exhibit 17.
Page142
1 (Exhibit No. 17 was admitted.)
2 MS. WILLHITE: The question is, "What
3 is the current level of mercury in the sediment in the
4 waters listed as impaired due to mercury?" And if you
5 will refer to the table for the answer, and my summary
6 of this information is that most of the sediment values
7 are right at or below the detection limit of .1 were
8 elevated.
9 MADAM HEARING OFFICER: I believe
10 Mr. Harrington had some questions on this exhibit.
11 MR. HARRINGTON CONTINUES:
12 Q. Earlier I asked about mercury and soils,
13 mining activities, etc., in the state, and you I believe
14 answered that the geologist you talked to said mercury
15 would not be liberated from that except through
16 combustion? Am I correct?
17 A. Correct.
18 Q. But storm water and runoff, whether it's
19 sheet runoff or through storm sewers, carries with it
20 the sediments?
21 A. Correct.
22 Q. And soils across the state, so mercury in
23 soils in sediment, mining activity, etc., could be
24 contributing to the mercury in the sediments in the
Page143
1 streams where it's been detected. Is that correct?
2 A. I would presume so.
3 Q. Do we know to what extent the mercury in
4 sediments may be a result of natural runoff, as opposed
5 to air deposition independently of naturally-occurring
6 mercury?
7 A. I've never quantified that? I can imagine
8 that a portion of that is. I can also imagine that
9 atmospheric deposition to soil then gets washed off into
10 waterbodies.
11 Q. We don't have any quantification of those
12 relative contributions, do we?
13 A. No. Other than -- not in Illinois. I
14 have seen one study that's being carried out to try and
15 understand the cycling of atmospheric-deposited mercury
16 into a forest, a type of ecosystem, and that particular
17 study didn't find that there was significant movement of
18 mercury to the waterbody from runoff.
19 Q. In a forest system?
20 A. Yes.
21 Q. That would be very different than the
22 agricultural systems in Illinois?
23 A. It might be very similar to Southern
24 Illinois.
Page144
1 Q. Historically, is there not a great deal of
2 use in mercury, both, industrial and scientific
3 instruments throughout the state?
4 A. I don't know.
5 Q. Barometers, pressure devices in heavy
6 industry and public works?
7 A. That seems likely.
8 Q. Was there not historically a level of
9 leakage of such mercury into the waterways in the state?
10 A. I don't know.
11 MR. BONEBRAKE CONTINUES:
12 Q. Is the information on Exhibit 17 extracted
13 from some other report, or was it put together for
14 purposes of this proceeding?
15 A. I believe it was extracted from our data
16 base that maintains this information.
17 Q. Does this database contain additional
18 historical sediment information in addition to the
19 current set of information that's listed on this
20 exhibit?
21 A. I believe this is the extent of the
22 information that we have on mercury impaired waters. I
23 believe that there's other sediment data for other
24 waters, but I think this represents everything we have
Page145
1 on the waters that have been identified as mercury
2 impaired.
3 DR. GIRARD CONTINUES:
4 Q. I have a question. When you say "current
5 level," what years does that represent?
6 A. I'm not certain, but I will be happy to
7 check.
8 Q. So you don't know when the values were
9 actually determined?
10 A. No, I don't.
11 Q. I have another question, also. So every
12 time you have the "K" that means the value is actually
13 below the detection levels?
14 A. You're referring to the -- where it says
15 "K" means that the actual value is it not known, but
16 known to be less than the value shown? So yeah, that
17 would be my understanding is that it's going to be less
18 than .1.
19 Q. So the way I read this table there are 34
20 river segments where you done some study of the
21 sediment, in terms of mercury, and of those 34, seven
22 locations had mercury levels above the detection level?
23 A. Correct.
24 Q. Thank you.
Page146
1 A. Rivers and lakes.
2 MADAM HEARING OFFICER: I believe
3 we're on 18-M.
4 MS. WILLHITE: Did we answer L?
5 MADAM HEARING OFFICER: You answered
6 that earlier.
7 MS. WILLHITE: So I did.
8 MADAM HEARING OFFICER: Out of
9 sequence.
10 MS. WILLHITE: L and L-sub-one, as
11 well. Okay. M: "Do any of these impaired rivers and
12 lakes have catch-and-re-lease requirements for fish
13 possession limits?" I don't know.
14 DR. HORNSHAW: The best I can say is
15 statewide there are fish possession limits for bass. I
16 think it's either five or six per day. I believe
17 Kincade Lake is a trophy lake for muskies. I think
18 there's a very high size limit, possibly 48 inches, and
19 only one fish is allowed to be kept at 48 inches or
20 above I believe. I would have to look that up. That's
21 a trophy lake, so anything -- I believe anything under
22 48 inches has to be released immediately for muskies.
23 MS. GEERTSMA CONTINUES:
24 Q. A clarification on the catch-and-re-lease,
Page147
1 so those limits are mainly that the larger the fish you
2 can keep the fish whereas you have to release smaller
3 fish.
4 DR. HORNSHAW CONTINUES:
5 A. I believe the statewide limit doesn't have
6 a size limit on it, only a possession limit, but there
7 are a whole lot of lakes that have lake specific limits,
8 and that's all listed in the booklet that we have
9 entered into evidence already.
10 MADAM HEARING OFFICER: Exhibit 11.
11 DR. HORNSHAW:
12 A. I guess, DNR Fishing Information Booklet.
13 All that is listed in there.
14 Q. To follow-up with your earlier testimony,
15 I believe you said the larger the fish the higher
16 mercury levels tend to be because they have been around
17 longer and eating more?
18 A. That's correct.
19 MR. BONEBRAKE CONTINUES:
20 Q. You refer to I believe the exhibit that
21 we -- 11 I think identified yesterday. Can you direct
22 us to the specific pages, page or pages, that you just
23 referred to.
24 A. The site-specific sport fishing
Page148
1 regulations begin on page nine and go through page 34.
2 Like I said, there's a big list of site specific
3 information for Kincade Lake. For instance, it's on
4 page 21. It lists large- or smallmouth bass, 16-inch
5 minimum length limit and three fish daily Creal
6 (phonetic) limit. Peermusk (phonetic) 48-inch minimum
7 length limit. I was right, and then there's
8 restrictions on the number and size of crappy that can
9 be kept, also. Everything listed here is different from
10 the statewide limits, which are given on page eight.
11 MR. KIM: I would note this document,
12 which was Exhibit 11 I believe was also provided to the
13 Board as one of the documents that we relied upon, so
14 it's already been provided in full form, and I don't
15 know if, for anybody that doesn't have a complete copy
16 of that, I don't know if that's accessible off the
17 Board's --
18 MADAM HEARING OFFICER: If it's not,
19 our clerk's office is always happy to scan and link
20 documents.
21 MR. KIM: But that was provided in its
22 entirety to the Board.
23 MADAM HEARING OFFICER: Anything else
24 on Question 18? Mr. Zabel.
Page149
1 MR. ZABEL: If I may revert -- and I
2 apologize for this. If you could look at Figure 4.3,
3 the colored chart we had before --
4 MS. WILLHITE: We were looking at 7.1
5 before.
6 MR. ZABEL CONTINUES:
7 Q. 7.1 and 4.3 are the ones I want to
8 compare, actually.
9 MS. WILLHITE CONTINUES:
10 A. Looking at 4.3.
11 Q. As I read this chart, this table of
12 graphics, the stars are sites that exceed the Mercury
13 Water Quality Standard. Is that correct?
14 A. Correct.
15 Q. Does that mean they are impaired or not?
16 A. No. Interestingly, they are not.
17 Q. I was trying to find some of them on 7.1
18 and couldn't, but that's what was puzzling. Thank you?
19 MADAM HEARING OFFICER: Anything else?
20 Then let's take a break, and we'll come back and start
21 Question No. 19.
22 (At which point in the proceedings, a
23 10-minute break was taken.)
24 MADAM HEARING OFFICER: Are we ready
Page150
1 to start again? I believe we are on Dynegy Midwest
2 Generation Question 19 for Ms. Willhite.
3 MS. WILLHITE: At the top of Ms.
4 Willhite's testimony, she refers to an analysis of the
5 amount of reduction of fish tissue levels of mercury
6 that would be needed to get below advisory levels, i.e,
7 what is the target for eliminating the impairment? Is
8 this the same analysis referred to in and described at
9 pages 62 through 64 of the TSD?" Yes. "In that
10 paragraph at the top of page three of her testimony,
11 Ms. Willhite refers to fish data collected statewide
12 over the last 20 years." A: "Is that data comprised of
13 the total of 815 samples collected between May 17, 1985,
14 and November 11, 2004, referred to at page 61 of the
15 TSD?" Yes. B: "Is that the total number of fish
16 tissue samples analyzed for mercury concentrations or
17 levels by the Agency during that period of time?" Yes.
18 "Is that data publicly" -- C: "Is that data publicly
19 available?" That's a Tom question.
20 DR. HORNSHAW: This question is also
21 asked of me, and I have a fairly involved answer. Did
22 you want me to go through that now or get to my
23 questions?
24 MR. BONEBRAKE CONTINUES:
Page151
1 Q. My preference would be to cover it,
2 probably C and D? Would that be related answers?
3 A. Yes.
4 Q. My preference would probably be to cover
5 that at a later point in time.
6 MS. WILLHITE: So skip D, E. "Does
7 that set of 815 samples include 397 largemouth bass
8 samples with the remainder comprised of samples from
9 other fish?" Yes. F: "Does the analysis referred to
10 in this paragraph of Ms. Willhite's testimony relate
11 only to large mouth bass samples, not the more than 400
12 samples related to other fish?" Yes. G: "Have
13 additional fish samples been corrected in 2005, and
14 2006?" Yes.
15 MR. ZABEL CONTINUES:
16 Q. Just on a very last portion of that, how
17 many were collected in 2005 and 2006?
18 DR. HORNSHAW CONTINUES:
19 A. I can't answer that. The 2006 the samples
20 are in the process of being collected right now by DNR.
21 2005 samples have been collected. I'm not sure all of
22 them have been delivered to our lab, yet. Some of them
23 sit in freezers in DNR offices for a while, until they
24 have reason to come to Springfield, so I don't know at
Page152
1 this point.
2 MS. WILLHITE: Question 21, "Of the
3 397 largemouth bass samples included in this analysis,
4 how many also contain PCB's or other contaminants above
5 applicable fish advisory levels?" Unfortunately, the
6 data are not organized in the database to answer to
7 question. Question 22: "Has the Agency identified as
8 impaired under Section 303-D of the Clean Water Act any
9 lakes, rivers or other waters based on the presence of
10 PCB's or other contaminants, excluding mercury, in fish
11 tissue, water, and sediment, and if so, A, please
12 identify each such impaired water, and B, please
13 identify the contaminant that caused the water to be
14 identified as impaired." Basically, I've been asked to
15 provide the 303-D list because that is a complete
16 listing of all the waters that we have identified as
17 being impaired in the parameter that they are identified
18 as potentially impaired, and that is produced every two
19 years by Illinois EPA. Appendix A of that document
20 lists the answers to the question 22, and the most
21 current approved 303-D list, which is for 2004, as well
22 as our draft, 2006 list which has been submitted to the
23 U.S. EPA, but has not been approved can be found at
24 www.EPA.state.il.U.S. back slash, water, back slash,
Page153
1 watershed, back slash, report, back slash, 303D hyphen
2 report, back slash, 2006, back slash, 303D hyphen report
3 dot PDF.
4 MADAM HEARING OFFICER: I'm going to
5 ask that you provide a copy of both of those 2004 and
6 the one submitted for the Board to enter as an exhibit
7 in this rulemaking.
8 MS. WILLHITE: Did we submit the 2004
9 as part of the documentation for the rule?
10 MADAM HEARING OFFICER: I just looked
11 at the table of contents at the break, and it wasn't
12 there, and I may have overlooked it, but I didn't see it
13 in the table of contents.
14 MR. KIM: So you would like the 2004
15 and the draft 2006?
16 MADAM HEARING OFFICER: Yes.
17 MR. KIM: I believe they were both
18 submitted as reference documents to the TSD as the
19 documented relied upon.
20 MADAM HEARING OFFICER: I missed it
21 when I was looking at the table of contents.
22 MR. KIM: Listed on page 210 of the
23 TSD.
24 MADAM HEARING OFFICER: Okay. If you
Page154
1 already have them, that's fine. I missed them on the
2 list. That's why --
3 MR. KIM: Sure.
4 MADAM HEARING OFFICER: These
5 references were -- part of the problem is the overall
6 size of the proposal. The reference documents are the
7 ones that were included like in banker's boxes?
8 MS. BILBRUCH: Yes, ma'am.
9 MADAM HEARING OFFICER: So there's no
10 numbers together.
11 MS. BILBRUCH: Well, they are numbered
12 in the box, but they are not numbered on the reference
13 list.
14 MADAM HEARING OFFICER: That's why we
15 were having trouble locating them.
16 MR. KIM: This is exhibit associated
17 with Question 23. For the record, that was Shannon
18 Bilbruch that just provided an answer. We're ready for
19 question 23, then.
20 MS. WILLHITE: Question 23: "Describe
21 how Ms. Willhite concluded that a 90-percent reduction
22 in fish tissue levels of mercury is required for
23 unlimited consumption by childbearing age women and
24 children under 15 years of age, including the following:
Page155
1 A, whether she assumed that the 141 samples that were
2 nondetect with respect to mercury contained mercury at
3 the level of 0.05 milligrams per kilogram. B: The
4 mathematical formula used to generate this conclusion,
5 and C: Whether this conclusion relates only to the top
6 five percent of largemouth bass with regard to mercury
7 concentrations." Since this was asking for calculation,
8 I thought this exhibit would be helpful.
9 MADAM HEARING OFFICER: I have been
10 handed "Exhibit for Dynegy Question No. 23 to Marcia
11 Willhite." We will mark that as Exhibit 18 for purposes
12 of the record. If there's no objection, I will enter
13 that as Exhibit 18.
14 (Exhibit No. 18 was admitted.)
15 MS. WILLHITE: The calculation for the
16 cited reduction in mercury loading was based on all 397
17 fish tissue samples for largemouth bass, and in the
18 Technical Support Document, we explain that we selected
19 the species because it's ubiquitous. It's frequently
20 found and it's favored by sport fisherman in Illinois.
21 We calculated the reduction based on the
22 generally-accepted 95th percentile. We are trying to
23 figure out how can we be sure that 95 percent of
24 largemouth bass samples are below advisory levels, and
Page156
1 essentially, is what we're saying. Using a detection
2 limit in one data set of .1 milligrams per kilogram and
3 another of .05 milligrams per kilogram just as a
4 different way of treating those nondetect data and
5 seeing if it makes a significant difference to the
6 outcome. The 95th percentile for data were 0.544
7 milligrams per kilogram, if you treat the nondetects as
8 being .1 milligram per kilogram, and 0.523 milligrams
9 per kilogram, if you treat the nondetects as being .05
10 milligrams per kilogram. In order to achieve the
11 acceptable mercury fish tissue level for the most
12 sensitive subgroup -- and that most sensitive subgroup
13 is childbearing-age women and children under 15 years of
14 age -- we calculated the necessary reduction in mercury
15 needed to achieve 0.05 milligrams per kilogram, the
16 highest level of mercury in fish tissue for unlimited
17 consumption in the subgroup. Therefore, the calculation
18 was as follows: you take the 95th percentile minus our
19 target level, 0.05 milligrams per kilogram, divided by
20 95th percentile times 100, and that equals the percent
21 reduction necessary for unlimited consumption by this
22 subgroup. So for using -- treating the nondetect as .1,
23 we went through the calculation and came up with 90.8
24 percent reduction needed. If we treat the nondetects as
Page157
1 .05, we come up with 90.4 percent reduction needed. So
2 in regard to question A, the sample results indicated
3 nondetection were assumed and calculated as shown above,
4 in the former case giving the nondetects the value of
5 the detection limit; in the latter case, giving them one
6 half of the detection limit. And we showed -- in answer
7 to question B, we showed how this was calculated, and in
8 regards to question C, the reduction is based on all 397
9 fish tissue results for largemouth bass.
10 MR. BONEBRAKE CONTINUES:
11 Q. Is it true that, of the 397 bass fish
12 tissue samples that you were working with, 141 of those
13 samples were nondetect for mercury?
14 A. I don't have that in front of me, I'm
15 afraid.
16 Q. Maybe if we turn to page 63 of the TSD,
17 that might refresh your recollection.
18 MADAM HEARING OFFICER: I'm sorry.
19 What page did you say?
20 MR. BONEBRAKE: Sixty-three.
21 MADAM HEARING OFFICER: Thank you.
22 MR. BONEBRAKE CONTINUES:
23 Q. I believe there's such a reference right
24 above table 4.35.
Page158
1 A. Yes. I see that, yes.
2 Q. So is it correct, then, that, of the
3 397 --
4 A. Yes. Yes.
5 Q. So more than a third of the samples were
6 nondetect for mercury?
7 A. Yes.
8 Q. Your calculation, nonetheless, assumes
9 that mercury is present at some level in all of the 397
10 samples?
11 A. Well, that's the typical approach that you
12 use when dealing with nondetect data.
13 Q. When you say "typical" do you mean from a
14 regulatory perspective, Ms. Willhite?
15 A. Kind of a practice of data analysis.
16 Q. You do not, in fact, know, do now, whether
17 mercury was even present in those 141 samples, as a
18 matter of fact?
19 A. No.
20 MADAM HEARING OFFICER: Mrs. Geertsma.
21 MS. GEERTSMA: Would eliminating that
22 141 samples, would that push the 95th percentile up or
23 down?
24 A. Up.
Page159
1 Q. And therefore, would more than a
2 90-percent reduction be required?
3 A. That would be my expectation.
4 MADAM HEARING OFFICER: I didn't get
5 the tail end of that question.
6 MS. GEERTSMA: I'm sorry, would a 90
7 percent reduction in fish tissues be required at that
8 point?
9 MADAM HEARING OFFICER: Thank you.
10 MR. BONEBRAKE CONTINUES:
11 Q. Well, the reason that that would push the
12 number up is because you have 14 samples, which may be
13 zero that are not included in your calculation. Is that
14 right?
15 A. Correct. That's why it's a standard
16 practice of data analysis that you include the data, but
17 you're I think, as Dr. Hornshaw explained in the past
18 day or so, that you just assume the central tendency of
19 the data to be towards the middle, between your
20 detection limit and zero.
21 Q. It may well be, for those 141 samples,
22 there was no mercury present at all, so you don't need a
23 reduction at all. Is that right?
24 A. Well, I wouldn't make that conclusion.
Page160
1 Q. You did tell me, did you not, that, as a
2 matter of fact, you don't know if mercury is present in
3 any of those 141 samples?
4 A. I did say that, but I wouldn't conclude,
5 if all of those levels were zero, that no reduction
6 would be needed. I don't think that's how the data
7 would come out.
8 Q. I want to take a look at this exhibit that
9 was just handed to us. Just one other clarifying
10 question, I believe you said this, but I want to make
11 sure I understand this correctly. This analysis that
12 we've been talking about relates solely to the bass
13 samples, and not to any other fish samples. Is that
14 correct?
15 A. I'm sorry? Would you repeat the question?
16 Q. The analysis that we've been discussing
17 relates solely to bass samples and not any other fish
18 samples?
19 A. Correct. It was the biggest complete data
20 set that we had, and it's kind of the worst case fish.
21 MADAM HEARING OFFICER: Ready to move
22 on?
23 MR. ZABEL CONTINUES:
24 Q. I recall Dr. Hornshaw testifying that the
Page161
1 be-low-the-detection-limit samples, some are marked with
2 a J to indicate the substance was present, and some are
3 marked that it wasn't identified at all. Is that
4 correct?
5 DR. HORNSHAW CONTINUES:
6 A. To my recollection, in the database that I
7 used, there are no J's. All the values are K.
8 Q. It all was shown as substance present, but
9 quantification wasn't possible?
10 A. That's correct.
11 MADAM HEARING OFFICER: Ready to move
12 on to Question 24?
13 MS. WILLHITE: "How large of a
14 reduction in sources of inorganic mercury to waterbodies
15 would be needed to achieve this 90 percent reduction of
16 methylmercury in fish tissues?" We have not assessed
17 what amount of reduction in inorganic mercury loading to
18 Illinois impaired waters would be needed to achieve a
19 90-percent reduction in fish tissue, but we don't have
20 any reason to accept that the relationship between
21 atmospheric loading and fish tissue levels in Illinois
22 waters will not be one to one. It was in Florida, as we
23 will discuss later. In Massachusetts, where they made a
24 60-percent reduction in atmospheric loading. There's
Page162
1 been a result in average fish tissue reduction of around
2 30 percent after five years. The full reduction in fish
3 tissue levels as a result of loading reduction, will
4 probably take a few more years to emerge as it took
5 almost 10 years in Florida. It seems likely that a
6 reduction of, at least, 90-percent reduction in loading
7 to Illinois waters will be needed.
8 MR. BONEBRAKE CONTINUES:
9 Q. If I understand that answer correctly,
10 Ms. Willhite, you're assuming that there's a one-to-one
11 relationship in the Florida and Massachusetts studies
12 that you referenced in that one-to-one relationship will
13 apply equally in Illinois?
14 A. I have no reason to believe otherwise.
15 Q. Those are the assumptions you are making?
16 A. Yes. That's the assumption that other
17 states have made that they start talking about.
18 Q. We have a series of questions in here, I
19 believe, related to the Massachusetts and Florida
20 studies, and I have a series of follow-up questions, but
21 I thought it would probably be better to handle those at
22 the time we are talking about those specific studies.
23 MADAM HEARING OFFICER: That's fine.
24 MR. RIESER CONTINUES:
Page163
1 Q. Do you have any knowledge as to whether
2 the proposed rule will result in a 90-percent increase
3 in loading to the Illinois waters?
4 A. Say that again. I would expect there
5 would be a 90 percent decrease in loading?
6 Q. As a result of the proposed rule?
7 A. Yes.
8 Q. So that assumes that there are no other
9 sources of mercury deposition, other than in Illinois
10 waters?
11 A. No. You are right. I presume that there
12 would be a 90-percent reduction in the contribution from
13 in-state sources as a result of this rule.
14 Q. And what impact would that have on the
15 loading to the streams?
16 A. I believe that there would be -- that
17 there is a portion of loading that comes from in-state
18 sources and a portion of loading that comes from
19 outside-of-state sources.
20 Q. What is that percentage?
21 A. I don't know.
22 Q. Is there somebody at the Agency who knows?
23 A. I don't think so.
24 Q. Are you aware of whether anyone is going
Page164
1 to present testimony on behalf of the Agency as to that
2 question?
3 A. I can provide you, in later questions,
4 some of the information that leads me to -- that
5 supports that belief. I can do it now, if you would
6 rather, but I'm an orderly kind of person and like to
7 take the questions in order.
8 Q. Why don't we wait, until it's in order,
9 then.
10 MADAM HEARING OFFICER: Ms. Bassi.
11 MS. BASSI CONTINUES:
12 Q. To follow-up on one of Mr. Rieser's
13 questions he -- in response to his first question
14 whether the proposal will result in a 90-percent
15 decrease in loading, you said yes, and then changed it
16 when he said, "This assumes there are no other sources."
17 And you said, "This presumes a 90 percent reduction of
18 in-state sources." So then do you presume that there
19 are no other sources in Illinois that contribute to
20 nonpoint loading?
21 A. Not significantly.
22 MR. BONEBRAKE CONTINUES:
23 Q. Ms. Willhite, on page three of your
24 testimony, section entitled "Contribution from
Page165
1 Atmospheric Deposition," the first sentence reads,
2 "Loading from atmospheric deposition of mercury to any
3 impaired lakes, rivers or streams has not yet been
4 determined. Do you see that?
5 A. I'm seeing that.
6 Q. I'm having a hard sometime understanding
7 your testimony regarding the impact on loading to
8 impaired with waters, given that there's no
9 determination of loading to impaired waters.
10 A. I would probably use the words "has not
11 been quantified."
12 Q. What's the difference between "determined"
13 and "quantified"?
14 A. "Determined" would be, in this sense,
15 reason to believe, yes or no. "Quantified" means how
16 much.
17 Q. So the Agency does not know, at this point
18 in time, how much reduction in loading to Illinois
19 waters would occur as a result of the proposed Illinois
20 rule?
21 A. We have not quantified that. I would make
22 the assumption that loading that is coming from in-state
23 sources, this rule would reduce that by 90 percent.
24 Q. All sources in the state of Illinois or
Page166
1 just EGU's?
2 A. From this rule from the sources covered by
3 the rule.
4 Q. So your assumption is that, if there is a
5 90-percent reduction in mercury emissions from EGU's,
6 there, similarly, would be a 90-percent reduction in
7 mercury deposition to Illinois waters?
8 A. Yes.
9 Q. I think you were -- I think what you said
10 was you were going to tell us the basis for that
11 conclusion in response to some of the later questions?
12 A. Can I rephrase my answer. Excuse me. I
13 believe that, if there is a 90-percent reduction as a
14 result of this rule, it will result in a 90-percent
15 reduction in the loading that comes from the sources to
16 Illinois impaired waters.
17 Q. Doesn't that mean that there would be a
18 90-percent reduction in the deposition of mercury to
19 Illinois waters attributable to such sources?
20 A. Yes. Did I say it differently? I'm
21 sorry.
22 Q. I wanted to make sure I understood what
23 you were saying.
24 MADAM HEARING OFFICER: Mr. Zabel.
Page167
1 MR. ZABEL CONTINUES:
2 Q. Now I'm not sure what you were saying. Is
3 that the Agency's conclusion as to the Fox River.
4 A. Take me back to what you understand as the
5 conclusion. I'm not sure I -- I don't understand the
6 question, how the Fox River issue is in there.
7 Q. Let's take the sentence that you just
8 referred to on page three of your testimony. "Loading
9 from atmospheric deposition of mercury to impaired
10 Illinois lake river or stream has not yet been
11 determined." You now want to change that to say
12 quantified. Is that correct?
13 A. I think that would be more accurate.
14 Q. You now want to change "atmospheric
15 deposition" to "from sources in Illinois." Is that
16 correct.
17 A. No.
18 Q. This rule will reduce atmospheric
19 deposition from all sources --
20 A. No. That's not what I'm saying.
21 Q. I'm willing to listen to what you're
22 saying. I just don't understand it. How would you
23 change that sentence?
24 A. No. I would change the sentence, only to
Page168
1 say it has not been quantified.
2 Q. And I'm asking I thought you had said that
3 a 90-percent reduction from EGU's would result in a 90
4 percent reduction --
5 A. In loading.
6 Q. To Illinois waters?
7 A. -- to Illinois waters from those sources.
8 Q. I'm asking if the Agency's view is that's
9 the case for the Fox River.
10 A. I'm sorry. I just don't see the
11 relationship.
12 Q. I'm sorry, the Rock River. I don't know
13 why I had the Fox in mind, but the Rock River that was
14 one of the impaired waterways?
15 A. To the extent that sources in Illinois are
16 contributing loading, to the extent that EGU's covered
17 by this rule that are in Illinois are contributing
18 loading to the Rock River, I would expect that the rule
19 would result in a 90-percent reduction in that loading.
20 Q. Have you determined if sources in Illinois
21 are contributing to the atmospheric deposition loading
22 on the Rock River?
23 A. I have not quantified that amount.
24 Q. I'm not asking you to quantify it. I'm
Page169
1 using your term "determined." I didn't ask for
2 quantification.
3 A. I have reason to believe they are
4 contributing some loading.
5 Q. What's the basis?
6 A. I will get to that.
7 Q. It will come up in a later question?
8 A. Yes, it will.
9 Q. Fine. We'll follow it then.
10 MR. KIM: Can I follow up and maybe
11 ask a question to clarify or to put it in a proper
12 context? When you state that you believe there's going
13 to be a 90-percent reduction in loading from sources if
14 the 90-percent reduction the rule sets forth takes
15 place, is that your personal opinion or is that the
16 Agency's opinion?
17 MS. WILLHITE: I'm stating my opinion.
18 MR. KIM: Thank you.
19 MR. BONEBRAKE CONTINUES:
20 Q. What's the difference? Do you have a
21 reason to believe that the Agency has an opinion
22 different than yours, Ms. Willhite?
23 A. No.
24 MR. ZABEL CONTINUES:
Page170
1 Q. The other obvious question is, is that the
2 Agency's opinion?
3 A. I believe so.
4 Q. So it's, both, yours and the Agency's?
5 A. I believe so.
6 Q. We'll find out why later.
7 A. I will testify as to my belief, which I
8 believe represents the Agency's belief.
9 MS. GEERTSMA CONTINUES:
10 Q. Can I just ask sort of a clarifying
11 summary question? Your last statement was that, to the
12 extent that EGU's are contributing to loading, you
13 believe that that loading will be reduced by 90 percent
14 by the rule.
15 A. Correct.
16 Q. Is that the extent of what you're
17 testifying to?
18 A. Yes.
19 MR. HARRINGTON:
20 Q. I'm trying to get to the same point, just
21 make sure the record is clear, because several different
22 formulations have been used as we've gone through this.
23 If you reduce emissions from Illinois power plants,
24 EGU's regulated by the rule by 90 percent, do you expect
Page171
1 that would result in 90 percent less deposition from
2 those same power plants in Illinois?
3 A. Yes.
4 Q. You're not saying any more than that at
5 this time?
6 A. That's correct.
7 MADAM HEARING OFFICER: Ready to go on
8 to Question 25?
9 MS. GEERTSMA: I have one follow-up
10 question.
11 MADAM HEARING OFFICER: Yes.
12 MS. GEERTSMA:
13 Q. I'm sorry. Ms. Willhite, just one
14 follow-up question. On the deposition model at the
15 deposition questions that have been asked, will the
16 Agency be producing another witness to testify on
17 deposition of it, other than yourself?
18 A. Yes.
19 MR. RIESER CONTINUES:
20 Q. Will that witness testify as to deposition
21 within the state of Illinois?
22 A. I'm not certain.
23 MS. WILLHITE: Question 25: "What are
24 the natural sources of mercury to waters in the state of
Page172
1 Illinois and to fish in such waters?" Sub-A: "What is
2 the extent of the contribution of such natural sources
3 to mercury levels in such waters in fish?" And I think
4 I answered this question about sources previously.
5 Question 26: "In the first full paragraph on page three
6 of her testimony, Ms. Willhite asserts that .05
7 milligrams per kilogram is the highest acceptable level
8 for mercury fish tissue for unlimited consumption. What
9 does" -- sub-A: "What does "acceptable level" mean?
10 DR. HORNSHAW: I'm going to respond to
11 I think all of these questions. We already discussed
12 acceptable level several times .05 milligrams per
13 kilogram.
14 MADAM HEARING OFFICER: Mr. Bonebrake.
15 MR. BONEBRAKE: You want to address
16 all of 26?
17 DR. HORNSHAW: I believe so. I have
18 responses prepared through J, so the answer is yes.
19 MADAM HEARING OFFICER: I'm sorry.
20 DR. HORNSHAW CONTINUES:
21 A. A we have already discussed is .05
22 milligrams per kilogram and that translates to as many
23 as 225 meals per year by women of childbearing age and
24 children under 15, and that's based on those 225 meals
Page173
1 will not exceed the reference dose that we discussed
2 earlier 0001 milligrams per kilogram per day. B: "Is
3 this same standard applied in other states and
4 countries?" I can speak for the Great Lakes states as a
5 member of the Great Lakes Fish Advisory Task Force. All
6 the Great Lakes states use the same protocol, so they
7 are all consistent in saying yes. I can't speak for
8 other states and other countries.
9 MADAM HEARING OFFICER: Excuse me. Ms.
10 Geertsma.
11 MS. GEERTSMA CONTINUES: Can I ask for
12 clarification on C from Dynegy? I was wondering what
13 definition of "mercury poisoning" is intended by this?
14 We had some testimony yesterday from Dr. Rice that there
15 is a difference, a technical difference, between mercury
16 poisoning and other effects of mercury.
17 MR. BONEBRAKE: I'm not testifying
18 here today, so the witness can provide his understanding
19 of the meaning of the term, and then we can ask
20 appropriate questions.
21 MADAM HEARING OFFICER: Dr. Hornshaw,
22 how did you interpret "mercury poisoning" in this
23 question?
24 DR. HORNSHAW CONTINUES:
Page174
1 A. I didn't really give it much thought,
2 until Dr. Rice made the distinction between acute
3 toxicity and longterm chronic toxicity. My response was
4 going to be for chronic toxicity and that would be --
5 MADAM HEARING OFFICER: Does that
6 clear up your issue?
7 MS. GEERTSMA: Yes.
8 DR. HORNSHAW: The answer is yes. "Is
9 it true that exceeding this level will not definitely
10 result in mercury poisoning?" The answer is yes.
11 MR. BONEBRAKE CONTINUES:
12 Q. Is that because there is a safety factor
13 built into the number, Dr. Hornshaw?
14 A. That's correct, and it's not a safety
15 factor. It's an uncertainty factor, and it's for
16 uncertainty, so there's some give and take in either
17 direction. The definition of reference dose
18 specifically, says with uncertainty spanning perhaps an
19 order of magnitude.
20 MS. GEERTSMA CONTINUES:
21 Q. So taking the question in the converse, is
22 it also true that not exceeding the level will
23 definitely result in no mercury poisoning? I'm not sure
24 if I stated all those negatives correctly, but I'm
Page175
1 hoping the --
2 A. I think I'm confused, but let me try and
3 answer. You are trying to ask if it also pertains to
4 Dr. Rice's definition of mercury poisoning, which would
5 be some kind of acute noticeable effect?
6 Q. I'm trying to ask if someone who were to
7 be exposed to mercury levels below this level, will that
8 guarantee that they will not have any negative effects
9 from mercury?
10 A. Not necessarily.
11 MR. BONEBRAKE CONTINUES:
12 Q. The uncertainty factor, what is the
13 magnitude of that uncertainty factor?
14 A. Tenfold.
15 Q. Does that tenfold uncertainty factor apply
16 to the Illinois Environmental Protection Agency's fish
17 advisory numbers, including its .05 milligram per
18 kilogram standard?
19 A. To the extent that it's included in the
20 reference dose, I guess the answer is yes.
21 Q. Is that -- that is because the Illinois
22 Environmental Protection Agency built its fish advisory
23 numbers upon the U.S. EPA's reference dose that includes
24 the uncertainty factor?
Page176
1 A. That's correct.
2 DR. HORNSHAW: D: "Table 4.2 of the
3 Agency's TSD refers to this number as an advisory due to
4 mercury, whereas Table 4.3 refers to the same number as
5 an advisory for methylmercury. Do the numbers in Tables
6 4.2 and 4.3 at no time apply to mercury or
7 methylmercury?" E: "We understand that the values
8 Tables 4.2 and 4.3 of the TSD were calculated from U.S.
9 EPA's methylmercury reference dose of 0.001 milligrams
10 per kilogram per day. Please explain how the values in
11 Tables 4.2 and 4.3 were generated from that reference
12 dose." I answered this in question 7-C. I believe at
13 that point I said I have a big description of that in
14 the questions directed to me. We can do that now or
15 later.
16 MR. BONEBRAKE: We tabled that for
17 your testimony later before, so let's do that again, so
18 we are consistent.
19 DR. HORNSHAW: F: "Does the Agency
20 believe that U.S. EPA's reference dose is adequately
21 protected with Human Health? Yes. That means sub-part
22 I doesn't have to be answered. G: "Is it correct that
23 Table 4.2 of the TSD indicates that the most sensitive
24 population, women of childbearing age and children under
Page177
1 15 years old, is advised that they may safely eat one
2 meal every other month of fish tissue with methylmercury
3 concentration as high as 1.89." The answer to that is
4 yes for the rest of this year. As I spoke earlier, the
5 Fish Contaminant Program will be changing over to an
6 upper limit of one milligram per kilogram for issuing
7 advisories next year to be consistent with FDA's action
8 level, so next year that will not be true.
9 MR. BONEBRAKE CONTINUES:
10 Q. Are you saying that, as of 1/1/07, above
11 one part per million the standard will be "Do not eat"?
12 A. That's correct. That assumes the rest of
13 the Fish Contaminant Monitoring Program agrees, and
14 preliminary discussions look like that's going to be the
15 case.
16 DR. HORNSHAW: H: Is it also correct
17 that the remainder of the population is advised that it
18 may safely eat one meal per month of fish with tissue
19 concentrations of methylmercury as high as 2.82 parts
20 per million?" Same answer as G. I: "Is it also
21 correct that the highest mercury fish tissue
22 concentration found by the Agency in its sampling of
23 fish in Illinois has been 1.4 parts per million?" Yes.
24 I need to do a little bit of explanation on that sample.
Page178
1 That was a 1988 largemouth bass sample from Sherman Park
2 Lagoon in Chicago. I have an exhibit somewhere. I have
3 a printout from my database for Sherman Park Lagoon in
4 the Chicago Metro area where that particular sample was
5 taken.
6 MADAM HEARING OFFICER: I have been
7 handed "Sherman Park Lagoon Fish Data, Sorted by Station
8 Code." We will mark this as Exhibit 19, if there is no
9 objection. Seeing none, we will mark this as Exhibit
10 19.
11 (Exhibit No. 19 was admitted.)
12 DR. HORNSHAW: A little bit of
13 explanation, this is a printout that I can get out of
14 the database that I maintain that will be a sneak
15 preview, if you will. This is for Sherman Park Lagoon,
16 and if you look at the notation for largemouth bass
17 sampling date, 10/7/1988. This is the fish in question.
18 Look over to the mercury column, entry is 1.4. This is
19 the highest value in the samples from 1985 through 19 --
20 whatever the date of the information is here. And what
21 we did was, after this information became available, it
22 looks like the Fish Contaminant Program, in 1990, wanted
23 to follow-up on this sample, so we asked DNR to go back
24 and collect a sample. Unfortunately, they didn't mark
Page179
1 any of the information that we normally require, a
2 number of individuals, sample weight, sample length.
3 All we have is the analytical data. I don't know how
4 that occurred. But in this case, the mercury
5 concentration for this fish was .1 milligrams per
6 kilogram, nowhere near the 1.4 milligrams per kilogram.
7 It was not followed up again, until 2002, when Sherman
8 Park Lagoon came up for its routine sampling effort, and
9 that year two more bass samples were collected, and
10 again, the values in the mercury column for the smaller
11 fish was less than the detection level of .1 milligrams
12 per kilogram and that's indicated in the column, the
13 last column following lipid content. That series of
14 boxes, if there's a check in any of the boxes, that
15 means the sample for the analite (phonetic) was not
16 detected, and the value listed is the detection limit,
17 so the smaller example was the less than .1 and the
18 larger sample fish at 14 inches was .13 milligrams per
19 kilogram. The information that -- the follow-up
20 information collected for this fish makes the 1.4
21 milligram per kilogram value suspect in our eyes.
22 There's no way of following up on it because they keep
23 fish tissue for, roughly, 15 years in the tissue bank
24 that we maintain, so this fish tissue was no longer
Page180
1 available. I strongly suspect that there was some kind
2 of analytical error or decimal point error and that is
3 probably not a true value, but we'll never be able to
4 know.
5 CROSS EXAMINATION BY MS. MOORE:
6 Q. The weight, do you suspect that the weight
7 was accurate, and that's the one consistent thing that
8 you have got?
9 A. Oh, yes, definitely.
10 Q. So wouldn't something that was
11 two-and-a-quarter pounds have a higher amount of mercury
12 because it's probably an older fish?
13 A. That's true. I wouldn't suspect it would
14 go that much higher than the next largest fish at 1.32
15 pounds, and of course, the one in 1990 we don't have
16 weight data for. I pulled the actual field sheet for
17 that one because we maintain all the field records in
18 the lab and data records, at least, back to 1988, and
19 that field sheet was not completely filled out, for
20 whatever reason.
21 MR. BONEBRAKE CONTINUES:
22 Q. Is the reason that you suspect the 1.4
23 number to be suspect is you typically would expect
24 relatively consistent concentrations over time and the
Page181
1 latter concentrations are considerably lower?
2 A. That's correct. Also, for a fish of that
3 size, that's not really large for a largemouth bass.
4 Large mouth bass in the range of three to five pounds is
5 what I would consider very large and old. If we're
6 going to see high levels of mercury in a fish, I would
7 expect to see them in a fish larger than this.
8 MR. RIESER CONTINUES:
9 Q. Just to clarify. Would it be accurate to
10 say just because a fish is large and old has - just to
11 clarify. Just because a fish is large and old, does not
12 necessarily mean he also has high levels of mercury in
13 it. Is that correct?
14 A. That's correct. That's a
15 waterbody-specific relationship.
16 MR. ZABEL CONTINUES:
17 Q. Do you happen to know, Doctor, whether
18 that Sherman lagoon is a catch-and-release lagoon.
19 A. I couldn't answer that. If it is, it
20 would be listed in the Illinois Fishing Information
21 booklet that's been entered.
22 MR. HARRINGTON CONTINUES:
23 Q. Are you familiar with the location and
24 condition of the Sherman Park Lagoon?
Page182
1 A. No, I'm not.
2 Q. Are you familiar with the amount of scrap
3 that's deposited into that lagoon?
4 A. No, I'm not.
5 MADAM HEARING OFFICER: Anything else?
6 MR. BONEBRAKE CONTINUES:
7 Q. A follow-up. We talked a little earlier
8 about the consistency of the data that you would expect.
9 Is that something that you have seen, Dr. Hornshaw, with
10 respect to over all the fish tissue mercury sampling
11 that the Agency has undertaken over the years? In other
12 words, has there been a consistent level in fish tissue
13 mercury levels in various Illinois waterbodies over
14 time?
15 A. Each waterbody or all waterbodies taken
16 together?
17 Q. Let's take for any specific waterbody
18 where there's been multiple samples over time. Would it
19 be --
20 A. My general familiarity with the database,
21 the answer would be yes, and it's size specific for each
22 waterbody. If there's not going to be a problem,
23 chances are even the big fish won't have very high
24 levels of mercury. If there is a problem, even low or
Page183
1 smaller fish are likely to have problems with mercury.
2 It's waterbody specific.
3 Q. So if I understood that correctly going
4 back to 1988 or so, it's your experience that,
5 generally, mercury levels in a specific -- mercury fish
6 tissue levels in a specific waterbody for specific fish
7 and fish of the same size have stayed about consistent?
8 A. That's my general impression, yes.
9 DR. HORNSHAW: Moving on then to J,
10 "Is it correct that there has been only one other Agency
11 tissue sample above one part per million?" I believe
12 that's correct. That fish came out of Kincade Lake or
13 Cedar Lake. I'm pretty sure it's Kincade. "If so,
14 please describe that acceptable level and its
15 applicability. You are going to have to interpret this
16 question for me. I don't understand it.
17 MR. BONEBRAKE CONTINUES:
18 Q. That may have been cut and pasted from
19 some other question.
20 A. I don't see much of an acceptable level
21 above one part per million.
22 Q. So I think we can disregard that question.
23 DR. HORNSHAW: No. 2: "Also, please
24 identify the lakes, rivers and other waters in Illinois
Page184
1 in which fish tissue samples exceed that level." Does
2 that mean one part per million?
3 MR. BONEBRAKE CONTINUES:
4 Q. I think you have identified the two
5 waterbodies that were, specifically, identified in the
6 two sub-part questions we discussed, so we can otherwise
7 disregard the question.
8 A. Okay.
9 MADAM HEARING OFFICER: Having reached
10 the end of Question 26, and being right around the noon
11 hour, let's go ahead and break for an hour for lunch and
12 come back and start with Question 27.
13 (At which point in the proceedings,
14 the hearing was adjourned for lunch.)
15 MADAM HEARING OFFICER: I think we are
16 ready to start, I think, with question No. 27.
17 DR. HORNSHAW: Question No. 27: "How
18 many meals per year comprises unlimited consumption for
19 purposes of Illinois fish advisories?" I have answered
20 this before. 225. "Is the .05 milligram per kilogram
21 numeric standard applicable to all funnels mercury
22 present in tissue or is that numeric standard limited to
23 the amount of methylmercury in fish tissue? I have
24 already answered this several times. Methylmercury.
Page185
1 Question 29: "Is the .05 milligram
2 per kilogram numeric standard applicable only to
3 children under the age of 15 and women of childbearing
4 age?" Yes.
5 30: "What is the trend, if any, in
6 concentrations of mercury and water bodies in the U.S.
7 and in Illinois since the 1970's?" I can't answer for
8 the U.S. because I don't have that data available to me.
9 The part about Illinois was also asked me in the
10 questions directed to me. Do you want to do that now or
11 later?
12 MR. BONEBRAKE: I think we touched a
13 little bit on trends already this morning, so let's go
14 ahead and from my perspective and close that issue out
15 now.
16 MS. WILLHITE: I will just say, from
17 the Bureau of Water standpoint, we don't have trend data
18 on mercury in ambient water.
19 DR. HORNSHAW: I believe this is
20 Question 17 directed to me by Dynegy Midwest. This
21 question really can't be answered with any degree of
22 accuracy or confidence since the fish contaminant data
23 are really not amenable to trend analysis. Trend
24 analysis would require regular collection of similar
Page186
1 sized fish in a waterbody over time. And this is
2 information with very few exceptions was not available
3 from the fish contaminant monitoring samples. In my
4 opinion, and this is just based on my familiarity with
5 the fish data, I think I have kind of eluded to this
6 earlier in response to another question. I believe that
7 mercury levels in both individual waters are fairly
8 steady, since I don't really see any large increases or
9 decreases in levels where there are multiple samples
10 available for a particular water and this also responds
11 to Prairie State's Question No. 1.
12 MADAM HEARING OFFICER: To you.
13 DR. HORNSHAW: To me, that's correct.
14 MR. BONEBRAKE CONTINUES:
15 Q. To follow up, do you know if the Illinois
16 Department of Public Health has made any statements
17 about the consistency of the methylmercury data over
18 time in fish tissue?
19 A. I believe that's one of the questions that
20 were asked of me, and the answer would be yes, they have
21 said that it's fairly constant over time. There's no
22 big increase or decrease I believe they said.
23 Q. And my impression from your first answer
24 is you would agree with the Department of Health?
Page187
1 A. Yes, I would.
2 MADAM HEARING OFFICER: For the
3 record, I would just like to note that the Question No.
4 17 directed to Dr. Hornshaw from Dynegy is that, "The
5 Illinois Department of Public Health document entitled
6 "Facts about Methylmercury Advisories" available on that
7 agency's website states that, "Methylmercury levels
8 detected in predator sport fish have remained about the
9 same." Over time, does the Agency agree that the FMCP
10 fish tissue sample shows steady levels of fish tissue
11 mercury concentrations over time?" So that's the
12 question he was answering in the hearing.
13 DR. HORNSHAW: Do you need me to read
14 Prairie State's Question 1?
15 MADAM HEARING OFFICER: No. I just
16 wanted to do that since he, specifically, followed up
17 with the question about the Public Health to be sure
18 that that was a part of the initial question he asked
19 you, so everybody was on the same page.
20 MR. BONEBRAKE CONTINUES:
21 Q. Then I had one follow-up for Ms. Willhite.
22 I believe you mentioned that you don't have any trend
23 data with respect to ambient water?
24 MS. WILLHITE CONTINUES:
Page188
1 A. That's correct.
2 Q. Would the same be true for sediment?
3 A. The information -- well, I will answer the
4 question this way. Yes. Generally, we have a few years
5 of data on sediment, and that's presented in that
6 exhibit that was provided earlier.
7 MR. RIESER CONTINUES:
8 Q. Ms. Willhite, let me make sure I have your
9 answer right. You were saying that the Bureau of Water
10 doesn't evaluate it's data for trends with respect to
11 mercury in water column. Is that what you're saying?
12 A. Yes. I think that our information on
13 mercury in ambient water is spotty, and I've been told
14 is not sufficient to be able to do trend analysis.
15 Q. So that would be different than for other
16 constituents that are measured at water quality
17 stations?
18 A. Routinely. It would be up to trend data
19 because we have over 200 stations that measure certain
20 parameters several times per year and have been for 20
21 years.
22 Q. Has there been any change in how the
23 mercury -- in the practices of the IEPA when it comes to
24 measuring if it was 200 stations for mercury.
Page189
1 A. No. It's not a parameter that we measure
2 for routinely.
3 Q. How often is it measured for?
4 A. I don't know.
5 Q. So the measurements of mercury, to this
6 day, would be, as you described them, "spotty"?
7 A. Yes.
8 MR. ZABEL CONTINUES:
9 Q. Just for the record, when you both
10 Dr. Hornshaw and Ms. Willhite, you referred to a trend
11 analysis are you referring to formal rigorous
12 statistical trend analysis when answering the questions?
13 DR. HORNSHAW: I am.
14 MS. WILLHITE: Yes.
15 MADAM HEARING OFFICER: Anything
16 further? Move on question 31 for Ms. Willhite.
17 MS. WILLHITE: "In her testimony,
18 Ms. Willhite cites, both, Florida and Massachusetts
19 studies." I'm going to answer all pieces of this
20 together. 31 sub-A: "When were these studies
21 conducted?" Sub-B: "Who conducted them?" C: "What
22 reports were generated related to these studies?" D:
23 Please provide copies of the reports related to these
24 studies." My testimony on the Florida and Massachusetts
Page190
1 experience is based on the report first entitled
2 "Integrating Atmospheric Mercury Deposition with Aquatic
3 Cycling in South Florida and Approach for Conducting
4 TMDL Analysis for an Atmospherically-Derived Pollutant"
5 -- that's the title of the Florida document -- was
6 conducted by the Florida Department of Environmental
7 Protection is dated October, 2002. The other document
8 is entitled "Massachusetts Fish Tissue Mercury Studies,
9 Long-Term Monitoring Results, 1999 to 2004" produced by
10 the Massachusetts Department of Environmental Protection
11 in 2006. Florida's work was conducted by various
12 researchers and contractors for mid 1990's to the early
13 2000's. The Massachusetts study was conducted from
14 1999, to 2004. The Florida report was one of several on
15 the website noted in the TSD. The final Massachusetts
16 report became available after the TSD was filed and all
17 the data had been presented at conferences, and were we
18 going to provide a copy of the Massachusetts report?
19 MR. KIM: We have copies -- we don't
20 have enough copies right now. We can make copies.
21 MADAM HEARING OFFICER: Your response
22 about the Florida report is available where?
23 MS. WILLHITE: On the website. In the
24 TSD, I refer to a particular place where the information
Page191
1 was found, the website.
2 MADAM HEARING OFFICER: Nonetheless,
3 since they, specifically, asked for a copy I think you
4 need to provide it.
5 MS. WILLHITE: Okay.
6 MADAM HEARING OFFICER: We can't enter
7 it as a hearing exhibit because everybody on the service
8 list --
9 MR. KIM: Yes. We'll try to have
10 that, if we can, before the end of the day. If not,
11 tomorrow morning, at least.
12 MADAM HEARING OFFICER: Thank you.
13 MS. WILLHITE: Question 32: "In the
14 Massachusetts study, did all the lakes studied show
15 decreased methylmercury concentrations in fish?" The
16 answer is 13 of the 17 lakes sampled showed a
17 statistically significant decrease in concentrations
18 between 1999 and 2004. Four lakes showed no
19 statistically significant change.
20 MR. BONEBRAKE CONTINUES:
21 Q. Unless I missed it in that answer, did you
22 address whether any of the lakes shown increases, Ms.
23 Willhite?
24 A. That was question 34.
Page192
1 Q. Thank you.
2 MS. WILLHITE: Question 33: "With
3 respect to the Massachusetts study, Ms. Willhite states
4 that following air emission reductions of,
5 `approximately, 90 percent levels of mercury in yellow
6 perch and largemouth bass declined by 32 percent and 25
7 percent respectively.' Did the same number of lakes
8 show declines for both species?" The answer is mercury
9 concentrations in yellow perch showed a statistically
10 significant decrease in 13 of 17 lakes. Mercury
11 concentrations in largemouth bass showed a statistically
12 significant decrease in 11 of 17 lakes. Eight lakes
13 showed statistically significant decreases in both
14 species.
15 MR. BONEBRAKE CONTINUES:
16 Q. I'm going to use this question to follow
17 up on something that we discussed earlier. I think you
18 said earlier, Ms. Willhite, that, from your perspective,
19 there was a one-to-one relationship between mercury
20 emission reductions and levels of mercury reductions in
21 fish tissue, and I think you referenced the
22 Massachusetts and Florida reports. Do you recall that?
23 A. I said mercury loading, between mercury
24 loading and fish tissue levels.
Page193
1 Q. Can you describe for us what you mean by
2 "mercury loading"?
3 A. Well, emission is what goes in the air and
4 loading is what falls in the water or is discharged into
5 the water.
6 Q. Well, let's start then with the mercury
7 loading, what enters into the bodies of water, and it's
8 your view that there is a one-to-one relationship
9 between what mercury enters into the water, in terms of
10 reductions and reductions in fish tissue mercury levels?
11 A. Say it again, please.
12 Q. Is it your view that, if there's a 90
13 percent reduction in mercury loading into a water body,
14 there would be a 90 percent reduction in mercury fish
15 tissue levels in the waterbody?
16 A. That's seems to be what's born out by
17 those locations where there's 90 percent reduction.
18 That's what the Florida study concluded of their data.
19 Q. In the Florida study, there was,
20 approximately, a 90 percent reduction in air emissions,
21 is that correct, of mercury?
22 A. More than 90 percent I think.
23 Q. And I think you said in your testimony
24 that the levels of fish tissue and mercury decline were
Page194
1 32 percent in yellow perch and 25 percent in bass?
2 A. I'm sorry. In the Massachusetts study,
3 that's right. I thought you said Florida, correct.
4 Q. So that's not a one-to-one relationship,
5 is it?
6 A. No, but I also said that I believe that
7 what the Florida experience showed was that it took
8 about 10 years for the fish tissue levels to completely
9 reduce, and the Massachusetts study is shorter than
10 that, and I expect that, given another five or so years,
11 that that equation will change.
12 Q. So it's your view, Ms. Willhite, that the
13 32 and 25 percent reduction level in fish tissue will
14 ultimately rise to about 90 percent based on the Florida
15 study?
16 A. No. That's not what I said.
17 Q. What about my question to you was
18 inaccurate?
19 A. Can you rephrase it for me, please?
20 Q. I'm trying to understand what you're
21 saying.
22 A. Well, rephrase your question. I will be
23 happy to answer to it.
24 Q. Would you agree that a 32 percent
Page195
1 reduction doesn't have a one-to-one relationship with a
2 90 percent reduction in loading?
3 A. At this time. Well, what I'm saying is
4 that, in Massachusetts, they had a pie chart of sources
5 of loading. The sector that experienced a great 90
6 percent reduction in emissions in the 90's is what has
7 been accomplished so far. That represents about 60
8 percent of the loading to those lakes in northeast
9 Massachusetts. As a result of that, there has been
10 around a 30 percent reduction in fish tissue levels of
11 mercury, to date. I think that, given time, that that
12 will continue to decline, based on what happened in
13 Florida, but emission reductions that occurred in
14 Massachusetts were not that whole pie chart of
15 emissions. There's still other emissions that are
16 providing loading to those water bodies, so I think
17 that, although there's an early indication of what's
18 going to happen there, it's not -- the process isn't
19 finished, yet. The loading hasn't been 90 percent
20 reduced. Only a portion of the loading has been
21 significantly reduced, and it's been short enough time
22 that the full reduction that's probably going to occur
23 -- my expectation would be, at this point, to occur
24 hasn't emerged as yet.
Page196
1 Q. If I followed all that correctly, is it
2 true, then, that there has been a 90 percent reduction
3 in the 60 percent loading attributable to the sources
4 from which there had been reductions?
5 A. Correct.
6 Q. And do you know, in the Massachusetts
7 study, how they were measuring loading?
8 A. No. I know that they had done some
9 modeling and some monitoring, but that was really not
10 discussed in the study.
11 Q. Then, going back to what we talked about
12 earlier, then, is it true that, based upon the Florida
13 study, you would anticipate that the 32 percent
14 reduction seen so far in yellow perch fish tissue
15 levels, as you say in your testimony, would ultimately
16 rise to 90 percent of 60 percent or about 54 percent?
17 A. "Rising" is what's confusing me. Do you
18 mean is the reduction going to --
19 Q. Increase, become greater.
20 A. The reduction is going to increase, yes, I
21 believe that's true.
22 Q. And that's based upon the Florida study?
23 A. Yeah, in expectation that that's the way
24 it's going to go.
Page197
1 MS. WILLHITE: Question 34.
2 MR. ZABEL CONTINUES:
3 Q. I'm sorry. Were they measuring the
4 loading on the waterbodies in question in Florida?
5 A. I don't know.
6 Q. Then we don't know the relationship
7 between the loading on those water bodies and the
8 reduced emissions.
9 A. I don't know if that just means I didn't
10 study that part of the report.
11 Q. But then you don't know --
12 A. I've seen information that says that
13 Florida attributed 98 percent of loading to atmospheric
14 deposition on the waterbodies of interest.
15 Q. From the waterbodies or from those
16 sources.
17 DR. KEELER: In Florida, they actually
18 did have actual measurements for wet deposition, and
19 then the remaining deposition was actually modeled, so
20 there were actual measurements that were used in the
21 Florida case.
22 MR. ZABEL CONTINUES:
23 Q. When you refer to wet deposition
24 measurements, how were those taken?
Page198
1 DR. KEELER CONTINUES:
2 A. There were two sets of data that were used
3 in that analysis. One was taken using a system
4 identical to what was used in the mercury deposition
5 network. That was part of the Florida atmospheric
6 mercury study performed by the Florida EEP. The other
7 measurements were taken using a system that my lab
8 developed at a limited number of locations. That's the
9 methods given in the literature. It's a wet-only
10 automatic collector.
11 Q. I'm sorry. I'm having trouble hearing
12 you, Doctor. Measured in the water body?
13 A. You asked about loading and deposition, so
14 that's what I'm referring to.
15 Q. What I'm trying to get to -- and I will
16 put it on the table -- is how do you know what the
17 sources were?
18 A. You asked about deposition.
19 Q. I did, indeed.
20 A. The deposition was measured and now you're
21 asking me a different question.
22 Q. Yes.
23 A. Could you ask me the question again,
24 please?
Page199
1 Q. Yes. How do you know what the sources of
2 the reduction in loading were?
3 DR. KEELER: Is this the appropriate
4 time to start?
5 MR. KIM: Sure.
6 DR. KEELER CONTINUES:
7 A. We have published several papers dealing
8 with how we calculate the source contributions of
9 various sources to the deposition of mercury in the
10 sample. This is accomplished by actually measuring the
11 rain that falls into a collector and analyzing that
12 sample for a long list of trace elements, major ions, as
13 well as mercury, and then using statistical and
14 meteorological modeling techniques to work backwards to
15 determine what the sources were. I will get into this a
16 little bit more when the questions about my testimony
17 come up, but that work was published in the
18 peer-reviewed literature and the details how we went
19 about that.
20 Q. I don't know if you know, Doctor, or any
21 of the three of you, I guess, was something similar done
22 in the Massachusetts study?
23 DR. KEELER CONTINUES:
24 A. In Massachusetts, we actually did make
Page200
1 measurements, but for the report that you're referring
2 to, these long-term monitoring, they actually -- it
3 looks like they used some modeling results to estimate
4 their deposition loadings, so I'm aware that they had
5 their own version of the CMAQ model, the model developed
6 by EPA, and used New England-specific emissions data to
7 do that modeling study. I'm not familiar with who
8 actually did that work, but in the report, it looks like
9 that's what they used.
10 Q. You didn't do the work?
11 A. I did not do the work.
12 Q. Do you know how they accounted for, if
13 they accounted, for phase I of Title IV of the Clean Air
14 Act?
15 A. I can't answer.
16 Q. I take it same answer for Phase II in that
17 case?
18 A. I can't answer that.
19 MR. BONEBRAKE CONTINUES: A follow-up.
20 If I understood, Ms. Willhite, your testimony correctly,
21 you were relying upon the Florida study to support your
22 view that the reductions in fish tissue levels will
23 continue to get greater over time in Massachusetts. Is
24 that correct?
Page201
1 MS. WILLHITE: That would be my
2 expectation.
3 MR. BONEBRAKE CONTINUES:
4 Q. We talked yesterday about the fact that
5 the methylation process is very waterbody specific. Do
6 you recall that testimony?
7 MS. WILLHITE CONTINUES:
8 A. Yes.
9 Q. Do you have any information about the
10 factors that bear on the methylation process with
11 respect to the Massachusetts bodies of water in question
12 in the Massachusetts study?
13 A. No.
14 Q. Do you have any of that information
15 available with respect to the waterbodies in question in
16 if Florida study?
17 A. I didn't study that part. It may have
18 been that they characterized it. I know part of what the
19 Florida work was, was to make use of an aquatic cycling
20 model to help understand methylation bioaccumulation,
21 and that sort of thing, but I didn't really review that
22 part of the work.
23 Q. So is it --
24 MR. KEELER: Could I help?
Page202
1 MR. BONEBRAKE: I would like to finish
2 with the line of questioning with Ms. Willhite.
3 MR. KEELER: I was going to provide a
4 supporting answer. Is that okay?
5 MR. BONEBRAKE: I would prefer to
6 finish up the line of questioning.
7 MADAM HEARING OFFICER: If he doesn't
8 want the rest of the answer, then we'll go back to
9 Ms. Willhite.
10 MR. BONEBRAKE CONTINUES:
11 Q. So is it correct, Ms. Willhite, that, as
12 far as you know, the methylation rates in the waters in
13 question in the Florida study may be very different from
14 the methylation rates for the waters in question in the
15 Massachusetts study?
16 A. I don't know. I mean, it's interesting to
17 me that, in Massachusetts, there were 17 lakes that
18 probably had different types of methylation rates, and
19 in Florida, there were different lakes and canals that
20 were sampled that probably had different methylation
21 rates, but they all had fish tissue levels that were of
22 concern, so I am unclear as to what the relationship is.
23 MR. KIM: Before we go further, my
24 understanding is that the whole purpose behind, among
Page203
1 other things, behind the hearing officer rule is to
2 gather as much information, relevant information, as
3 possible. One of our panel members has indicated that
4 he can add to the question. I understand the question
5 was presented to one witness, but if another witness can
6 add to that, isn't that inappropriate?
7 MADAM HEARING OFFICER: Not at all,
8 Mr. Kim, but Mr. Bonebrake said he wanted to finish with
9 Ms. Willhite. My intent was to ask Dr. Keeler what he
10 wanted to add. That was my personal intent.
11 MR. BONEBRAKE CONTINUES:
12 Q. I'm not sure you answered my question. My
13 specific question was, as far as you know, the
14 methylation rates in the Florida waterbodies in question
15 might be varied different from the methylation rates for
16 the waterbodies in question in the Massachusetts study.
17 Is that right?
18 A. They might be. I really don't know.
19 Q. And that might also result in a level of
20 reductions in Florida that would not be repeated in
21 Massachusetts. Isn't that also correct?
22 A. I don't know.
23 Q. Isn't it also correct that, with respect
24 to Illinois waterbodies, those Illinois waterbodies that
Page204
1 are currently impaired might have very different
2 biochemistry or other factors bearing on methylation
3 rate from the waters in question in the Massachusetts
4 study. Is that correct?
5 A. I don't know.
6 Q. So the methylation rate in Illinois waters
7 might be very different from the methylation rate for
8 the waters in question in the Massachusetts study. Is
9 that correct?
10 A. I don't know.
11 MADAM HEARING OFFICER: Are you --
12 Dr. Keeler, could you please. I apologize for
13 interrupting you, but Mr. Bonebrake, wanted to finish.
14 DR. KEELER: Just for clarification, I
15 was a co-author on the Florida TMDL report and main
16 contributor to the deposition part of that work, so I'm
17 intimately familiar with what was done. One thing that
18 should be made clear is that the mercury cycling model
19 is an aquatic cycling model. It, basically, takes, once
20 the mercury hits the waterbody, and figures out through
21 -- it's a very complex model, but it, basically, works
22 the mercury through the ecosystem and calculates how
23 much mercury will be in different types of fish at
24 different sizes and so forth, and it also has the
Page205
1 ability to then continue that into the future, so that
2 it can look to see how much mercury will be in the fish
3 given a length of time. In the Florida case, there was
4 a dramatic decrease in the deposition of mercury in
5 South Florida primarily due to the decrease of mercury
6 emissions from incinerators from municipal waste and
7 medical waste incinerators and that decrease in loading
8 then, was reflected in the decrease in deposition. The
9 change in the deposition then was put into the mercury
10 cycling model, and after about a 10-year period, they
11 actually did see a commensurate, almost one-to-one -- I
12 say almost one-to-one because it might be one plus or
13 minus .1, so 10 percent variability between the
14 deposition that hit that ecosystem, and how much was
15 found in the fish, fish tissue, itself. This was
16 surprising to everyone involved because the model is not
17 linear. There is not a decreased deposition in the fish
18 automatically decreased by the same amount. It's a very
19 complex model. It has all kinds of different things,
20 but it takes into account the specific water quality
21 parameters in the model, itself, so the temperature of
22 the water, the amount of sunlight that hits the
23 waterbody, the dissolved organic carbon content, the
24 sulfur concentration, the PH, all of the important
Page206
1 parameters that we already heard discussed, in terms of
2 methylation of mercury. Those are all taken into
3 account in the model and they vary seasonally. The
4 model came up with this one-to-one decrease from
5 deposition to decrease in fish. That model has been
6 applied elsewhere, in different places, and we continue
7 to see the same type of relationship, so when the
8 question is asked whether one would expect to see the
9 same result in Massachusetts as what you would see in
10 Florida, the answer is no. What they did in Florida was
11 they would use a model and include the parameters for
12 the water quality in Massachusetts, specifically. It's
13 going to have different PH, different dissolved organic
14 carbons, different temperatures. The seasonality is
15 going to be different, and then it will take into
16 account the exact loading that was either modeled or
17 measured as input to that model, so you would expect to
18 see different methylation rates and that's what you do
19 see. There have been studies done by other researchers
20 again, there are a plethora of papers in the
21 peer-reviewed literature that talks about changes in
22 methylation rate between Florida and other places, and
23 you would expect that just because the environment is
24 very, very different, but these models take that into
Page207
1 account when they estimate it, and the models are
2 pointing to changes in deposition, pretty much linear
3 changes in the fish content, so those are studies that
4 have been performed thus far.
5 MS. BASSI CONTINUES:
6 Q. Has that model been applied to Illinois?
7 A. To my knowledge, I don't know. I'm not
8 aware of any, but again, it could be applied to Illinois
9 given, if the input data was there to apply it to a body
10 of water.
11 MR. BONEBRAKE CONTINUES:
12 Q. You mentioned that the model is predicting
13 a one-to-one relationship. Would that be the right way
14 to put it?
15 A. Yes.
16 Q. Has the actual data in question in the
17 Florida study shown a one-to-one relationship across all
18 waterbodies studied?
19 A. For the TMDL that was performed down
20 there, they looked at water conservation area 3-A, which
21 is a specific part of the Everglades, and for that
22 waterbody, they actually have a fairly large database of
23 mercury content in various levels of the ecosystem from
24 low traffic levels, all the way up to the fish and
Page208
1 wading birds and other things, so the model has
2 predicted what has been observed, in terms of observed
3 levels in wading bird feathers, and also in the levels
4 of fish that were actually from that area. The TMDL was
5 specific to that specific part of the Everglades. It's
6 not widely representative for the whole state of Florida
7 because, obviously, the waterbody is water composition
8 of 3A is very different than we find in those in Florida
9 or in other parts of the Everglades.
10 Q. Isn't it true that in the Florida study
11 the authors of that study considered actual fish tissue
12 methylmercury levels in nine different locations in the
13 Everglades.
14 MS. WILLHITE: Twelve.
15 MR. BONEBRAKE CONTINUES:
16 Q. Of those 12 locations in question in the
17 Everglades, how many showed an actual decrease in
18 methylmercury levels?
19 MS. WILLHITE CONTINUES:
20 A. Would you prefer to answer that question
21 now or finish up with Massachusetts stuff because that
22 question is asked and I was prepared to answer related
23 to the Florida study.
24 MR. BONEBRAKE CONTINUES:
Page209
1 Q. Let's proceed to answer the question,
2 since we are here.
3 MADAM HEARING OFFICER: Excuse me.
4 With all due respect, you only have two questions left
5 on Massachusetts. Can we -- let's finish Massachusetts,
6 and then come back. Otherwise, the record is going to
7 be even more messed up than it already is. We'll try to
8 keep the same mind set when we get back. I do believe
9 you actually have a specific question presented to
10 Ms. Willhite on the prefiled questions for
11 Massachusetts, so we won't lose the question. I
12 apologize, but like I said, you only have I'm all for a
13 clearer record.
14 MS. WILLHITE: I think we're at
15 question 34. 34: "Did the Massachusetts study show any
16 lakes with increases in methylmercury levels in fish?"
17 One lake had an apparent increase in trend in yellow
18 perch mercury concentrations, but the increase was not
19 statistically significant. It was not significantly
20 different between 1999, 2004.
21 MR. BONEBRAKE CONTINUES: I thought
22 she was finished. Please continue.
23 MS. WILLHITE: One lake had a
24 statistically significant decrease in largemouth bass
Page210
1 mercury concentrations between `99 and 2003, but the
2 2004 sample was slightly here than the 1999 value.
3 Massachusetts is awaiting the results for 2005 to help
4 shed some light on mercury dynamics in this lake.
5 MR. BONEBRAKE CONTINUES:
6 Q. So if I understood that correctly, there
7 were, at least, two lakes in the study area that showed
8 increases over time in fish tissue methylmercury level.
9 A. Yes.
10 MS. WILLHITE: 35: "Did the
11 Massachusetts Department of Environmental Protection
12 determine that their air emission reduction efforts were
13 sufficient to reduce methylmercury levels in fish to the
14 level that TMDL's and public fish advisories would no
15 longer be necessary?" I would say, apparently, not.
16 The incinerators emissions were reduced around 2000, but
17 in 2004, Massachusetts established a 90 percent mercury
18 reduction requirement for emissions for coal-fired power
19 plants in order to address another significant in-state
20 source of loading to impaired waters. Massachusetts
21 believes that, in addition to in-state reductions,
22 significant out-of-state reductions of mercury will be
23 needed to completely address fish tissue contamination
24 in their state. Question 36 --
Page211
1 MR. RIESER CONTINUES:
2 Q. Ms. Willhite, are you familiar with the
3 Meramec River Valley fish mercury study?
4 A. No.
5 Q. So you are not familiar about whether
6 that -- let me step back. I believe you said that
7 earlier that one reason that the Massachusetts data
8 wasn't showing a one-to-one reduction that you're
9 claiming was partly they didn't have time to achieve
10 that state, and also not all of the sources of mercury
11 within Massachusetts have been controlled. Is that
12 fair?
13 A. I would say both in-state and
14 out-of-state, yes.
15 Q. Instate and out of state?
16 A. Loading. I will just say, if I'm a
17 waterbody, what's hitting the water body is loading and
18 the loading can be coming from a variety of sources.
19 Q. Understood. So you're not familiar with
20 the Meramec River Valley Fish Study, in terms of how it
21 addressed evidence of whether there is downwind, whether
22 lakes that were downwind of power plants were showing
23 certain levels of methylmercury?
24 A. I'm not familiar with the study, but maybe
Page212
1 I've never heard it characterized as that. I don't even
2 know what state that is.
3 Q. Thank you.
4 MS. WILLHITE: Question 36: "Does the
5 Florida study that is mentioned in the TSD and Ms.
6 Willhite's testimony rely heavily on modeling for making
7 predictions?" Florida mercury studies are a broad
8 program of monitoring, modeling and research into the
9 atmospheric and aquatic cycling of mercury,
10 bioaccumulation and risk with specific reference to the
11 Florida Everglades. The results of these investigations
12 are supported by a broad base of data and analysis as
13 it's embodied in the report. 37: "What are the caveats
14 and cautions in the Florida report regarding the
15 predictions the authors of the reports were making?" As
16 is stated in the 2002 report, there is considerable
17 treatment of the uncertainties of the analysis, and
18 these are detailed in the appendices, but there were no
19 overarching cautions provided that I saw. Question 38:
20 "Do all of the data for largemouth bass shown in the
21 Florida study support the modeling results of a
22 one-to-one relationship between reduced inorganic
23 mercury emissions and reduced methylmercury
24 concentrations in fish? A: If so, how?" The data that
Page213
1 underlies this analysis are the results of consistent
2 annual collections of, typically, 20 fish per site using
3 protocols in place since 1994. This analysis compared
4 actual field data to the Tetricheck mercury cycle model
5 customized in this application.
6 MR. BONEBRAKE CONTINUES:
7 Q. I'm not sure if you did you answer the
8 question, Ms. Willhite, if the actual results for the 12
9 data points that you referenced earlier showed a
10 reduction in methylmercury concentrations.
11 A. Well, the question said, "Do all the data
12 show one-to-one relationship?" I think maybe we got off
13 on -- my notes may be incorrect on what question is
14 here.
15 MADAM HEARING OFFICER: Question 37 is
16 where we were, right? Is what were the caveats and
17 cautions of this Florida report?
18 MS. WILLHITE: Yeah.
19 MR. BONEBRAKE: I think we had moved
20 on to 38.
21 MADAM HEARING OFFICER: I'm sorry. I
22 didn't cross it off fast enough.
23 MS. WILLHITE: I'm sorry. I'm gong of
24 the to go through my notes again. I think I have gotten
Page214
1 off track here.
2 DR. KEELER: From my recollection, the
3 best relationship was a one-to-one relationship for the
4 data points in the largemouth bass. That doesn't mean
5 that every single point fell perfectly on that line, but
6 that's what my recollection is from the report.
7 MR. BONEBRAKE CONTINUES: I have three
8 copies of a report that I think is the report that
9 Ms. Willhite was referring to earlier. I wasn't sure
10 exactly, in advance of this proceeding, what documents
11 she was referring to, and so I can provide a copy of the
12 report to Ms. Willhite and copy to the hearing officer
13 and the copy to Mr. Kim for some follow-up questions to
14 see if we can nail these issues down.
15 MADAM HEARING OFFICER: Which report
16 is that?
17 MR. BONEBRAKE: This is entitled
18 "Integrating Atmospheric and Mercury Deposition with
19 Aquatic Cycling in South Florida" dated October, 2002,
20 revised November of 2003. I think that was -- I think
21 that was the report that she was referencing.
22 MR. KIM: I think some of our staff is
23 probably copying the very same report that you just
24 referred to with sufficient copies for the four, and one
Page215
1 for opposing counsel. If you would like to do that,
2 that's fine. If you can do that right now, that's fine,
3 and we can supplement with additional copies.
4 MADAM HEARING OFFICER: We will admit
5 the Florida report as Exhibit No. 20, if there's no
6 objection. So this will be Exhibit No. 20. I see no
7 objection.
8 (Exhibit No. 20 was admitted.)
9 MR. AYRES: I think we need to make
10 sure which version of it we're looking at because I know
11 there have been some different things published.
12 MR. KIM: I believe the copy that we
13 are retrieving is the one that's available right now off
14 the website.
15 MADAM HEARING OFFICER: We will admit
16 this as Exhibit No. 20 then, and then we will admit the
17 other as Exhibit 21, if we need to.
18 MR. KIM: If it's different. It may
19 be the very same copy.
20 MR. BONEBRAKE: I pulled this copy off
21 the website and there was a lot of material on the
22 website.
23 MR. KIM: I'm sure it's probably the
24 same thing and we can give you sufficient copies for the
Page216
1 Board.
2 MS. WILLHITE: My notes are not
3 complete enough to answer that question. I would need
4 to study the report again to answer the question.
5 MR. BONEBRAKE: Maybe we can refresh
6 your recollection.
7 MS. WILLHITE: I would prefer to do it
8 and get back to you, if that's possible at all, because
9 I can't do it in 30 seconds, sorry.
10 MR. KIM: Ms. Willhite has a
11 scheduling conflict. She's going to be away from the
12 hearing tomorrow, but she will be here on Friday if
13 there were specific questions that come up today posed
14 to her concerning the contents of the Florida report,
15 then, at least, that would give her a little bit of time
16 and we can come back and we'll answer the questions. I
17 think you are going to get a better quality of answer if
18 she has an opportunity to look at it as opposed to right
19 now.
20 MS. WILLHITE: I will continue to
21 answer questions, but for some unexplainable reason, my
22 notes are not completely addressing that question.
23 MADAM HEARING OFFICER: Why don't we
24 put the questions on the record, so she knows what the
Page217
1 questions are, and if she feels she can answer them
2 today, she can address them. If not, we'll let her
3 review the report, and we'll bring her back on Friday.
4 MR. BONEBRAKE: I'm a little concerned
5 about putting questions on the record because they are
6 narrative. It would depend if I asked questions and she
7 gives me a response and I'm not sure where I'm going to
8 go, and it would be difficult to put all the questions
9 on that I would actually ask because it's difficult for
10 me to predict how she's going to answer all my
11 questions.
12 MR. KIM: We wouldn't limit you to
13 questions you would read into the record, but if there
14 was a particular section or topic that you wanted her to
15 focus on in the report, even if you just give us that,
16 then she can look at that and go from there.
17 MR. BONEBRAKE: I think there's a
18 discussion, as I understand it of the actual
19 methylmercury fish tissue results, as opposed to the
20 model results, including at pages 81 and 82 of this
21 report and Table 12 of the report, which is on 82, and I
22 would ask a series of questions regarding what the
23 actual data demonstrated over time.
24 MS. WILLHITE: If you would permit me
Page218
1 an opportunity to review those data and get back to you
2 on the answer, I would be very grateful.
3 MR. BONEBRAKE: I think that's fine,
4 Ms. Willhite. Just a follow-up question, is your
5 concern about your notes on this particular question
6 causing you any concerns about some of your responses to
7 the other questions?
8 A. No.
9 Q. So as far as you know, this difficulty is
10 just related to this one question?
11 A. Yes, so -- I'm prepared to continue on the
12 other questions.
13 Q. We'll come back Friday then to the
14 questions related, specifically, to the Florida report.
15 MADAM HEARING OFFICER: Absolutely.
16 MS. WILLHITE: I can even answer the
17 additional questions that are asked on the Florida
18 report. It's just that particular piece of information
19 that I regret that I don't have complete notes on for
20 today.
21 MADAM HEARING OFFICER: That's,
22 generally, the stuff covered in Question 38?
23 MS. WILLHITE: Yes.
24 MS. WILLHITE: Question 39: "How many
Page219
1 different sites were sampled in the Florida study?"
2 Largemouth bass have been collected with consistent
3 field and analytical protocols since 1994. Annual fish
4 collections target three-year-old size class largemouth
5 bass at 12 sites in South Florida. Typically, 20 fish
6 are collected at each site each year. Question 40:
7 "How many of these Florida sites did mercury levels
8 increase or show no change?" The way that Florida
9 presented the data was they had 10 classes braced on
10 kind of an age, site, size, descriptor, as I understand
11 it at the 12 sites, so they had what they considered to
12 be 120 categories, that combination of site and
13 different kind of size and age class, and they did trend
14 significance on these data that they collected looking
15 at a period of data as early as 1988 to as late as 2000.
16 66 of these size and site cohorts that they describe had
17 enough data that they could test significance for
18 trends. The results were split relatively evenly
19 between a significant decline at the 95 percent
20 confidence level and having no trend. Significant
21 declines were observed across the state suggesting a
22 regional effect. For example, atmospheric deposition,
23 with the most consistent declines across cohorts
24 observed for the two Everglades canal sites that they
Page220
1 denote as L-67-A and L-35-B and East Lake -- I won't be
2 able to pronounce this but I will spell it --
3 T-A-H-O-P-E-K-A-L-I-G-A. The three sites in water
4 Conservation No. A near site 3-A-15 located near the
5 so-called hot spot of high fish tissue concentrations
6 also showed some cohorts with significant declines.
7 Although nearly as many site cohort combinations also
8 showed no change. Only three site cohort combinations
9 showed a significant increase in trend, and all these
10 were observed at the same site in water conservation
11 area 2-A. The Florida folks that wrote the report said
12 that this increase likely reflects a highly localized
13 effect in, both, time and space, such as P burning and
14 oxidation that occurred in the Everglades following the
15 intense drought, and dry down in May and June of 1999
16 and they cite to publications, Pullman, et al., 2002.
17 MR. BONEBRAKE CONTINUES:
18 Q. Ms. Willhite, you just described some
19 information relating to the South Florida study and if
20 you wouldn't mind just taking a look at the page 82 of
21 the Florida report, I want to make sure I know the
22 source of your information, and ask you to take a look
23 at Table 12 on page 82.
24 A. Yes.
Page221
1 Q. Is Table 12 the source of the information
2 that you just described pertaining to trends in data in
3 South Florida?
4 A. I know, but I was quoting what was on page
5 81. I believe so. I believe they are summarizing what
6 was stated in the text on page 81 of the report.
7 Q. I think your testimony was that about half
8 of the data points there was no significant change in
9 methylmercury fish tissue levels. Is that correct?
10 A. Correct.
11 Q. And that was true, notwithstanding
12 reductions in mercury air emissions in the area?
13 A. I didn't see how they related the
14 reductions in loading to their locations for sampling,
15 but that was just not something that I looked up in the
16 report, so I'm not certain to what extent there was
17 loading reduction on the places where there was no
18 significant trend. I just didn't study that part.
19 Q. Is it your understanding that there were
20 significant mercury emissions reductions in South
21 Florida?
22 A. Yes.
23 Q. How significant were those reductions?
24 A. The emission reductions were around 90
Page222
1 percent, as I recall. 80 percent? 90 percent.
2 MS. BASSI CONTINUES:
3 Q. Was that 90 percent of overall emissions
4 or 90 percent of a certain category, and by "category" I
5 mean industrial category.
6 A. Yeah. They had a variety of sources. I'm
7 not certain.
8 DR. KEELER: The 90 percent figure
9 you're referring to is 90 percent reduction in all
10 source categories. The 90 percent reduction that you
11 are referring to that occurred around the year 2000 was
12 for all source categories, but municipal waste and
13 medical waste incineration was the dominant source of
14 those emissions reductions. It should be pointed out,
15 though, that the dominant reduction emissions was
16 estimated to have occurred earlier than that, closer to
17 1990, so that the reductions I would guess the peak,
18 which is shown on page 76 in Figure 19 was actually
19 around 1991 in mercury emissions for all categories and
20 then add that to reduction of 90 percent that occurred
21 around year 2000 is really very insignificant compared
22 to the reduction that occurred around 1991, so there was
23 a big reduction in the early 90's and total mercury
24 emissions and another one primarily from incinerators
Page223
1 around the year 2000.
2 MR. BONEBRAKE CONTINUES.
3 Q. I'm looking at a page 76 and you were
4 referring to a bar graph on that page, Dr. Keeler?
5 A. Yes.
6 Q. Unfortunately, mine is not color printed,
7 so I don't know if I'm missing some information. Is
8 yours?
9 A. No. I have black and white. I have your
10 copy, in fact.
11 Q. As I look at that bar graph, it looks to
12 me like most of the reductions in the 1990-91-92 time
13 frame were from what is referred to as MWI and MWC
14 incinerators and combusters?
15 A. I think that's what I said.
16 Q. Maybe I misunderstood you.
17 A. Municipal waste incinerators and medical
18 waste incinerators, that's what those two categories
19 are.
20 MADAM HEARING OFFICER: Actually,
21 municipal waste combusters and medical waste
22 incinerators.
23 MR. BONEBRAKE CONTINUES:
24 Q. Defined at the footnote at the bottom of
Page224
1 the table. A follow-up question of Mr. Keeler since he
2 was providing some testimony. Do you know,
3 Dr. Keeler, if the emission reductions that are reported
4 in the Florida report encompass, geographically, all of
5 the -- "encompass" is maybe the wrong word -- in the
6 vicinity of all the 12 data points that are listed on
7 the table on page 82 of the report?
8 A. Could you be more specific with your
9 question? I'm not sure what you're asking me.
10 Q. There's a table we talked about, Table 12,
11 on page 82 of the Florida report. Do you see that?
12 A. I see that.
13 Q. We just talked about reductions in mercury
14 emissions over time. That also referred to page 76 of
15 this report. Do you recall that?
16 A. Yes.
17 Q. Do you know if the mercury emission
18 reductions that are referred to on page 76 of the report
19 were from sources in the vicinity of the data points
20 locations that are identified in Table 12?
21 A. The emissions plot reflects all of the
22 mercury sources in south Florida, not just ones in the
23 vicinity for the sampling locations for the fish, so
24 it's trying to take a comprehensive look at all the
Page225
1 emissions sources. Just to give a spacial reference
2 frame, if you take south Florida, the south Florida
3 peninsula, and kind of think of that as about the same
4 size as Lake Michigan, that's about the same. Everyone
5 thinks that South Florida is this huge peninsula, but in
6 fact, it's not too much different in size. You could
7 take it and stick it right in Lake Michigan, just for a
8 frame of reference. From one side of Florida, from
9 Naples to Fort Lauderdale is actually not that big of a
10 space, so all of those sources are fairly close in
11 proximity to all of the sampling areas in the Florida
12 Everglades.
13 MS. BASSI CONTINUES:
14 Q. How far north does south Florida go? Is
15 it, like, halfway up the state or are you talking less?
16 A. Typically, people think of Lake Okachobee
17 as the cutoff point, so south of Lake Okachobee.
18 MADAM HEARING OFFICER: Just like
19 people in Chicago and Southern Illinois. Mr. Harrington.
20 MR. HARRINGTON CONTINUES:
21 Q. Just for my own clarification -- if this
22 is out of order I will come back to another point -- but
23 I think my understanding is both the Florida and the
24 Michigan studies dealt -- excuse me -- Massachusetts
Page226
1 dealt with primarily reductions from waste combusters
2 and medical waste incinerators. Is that correct?
3 MS. WILLHITE CONTINUES: Yes. If I
4 can just add to that --
5 MR. HARRINGTON CONTINUES:
6 Q. Sure.
7 A. From the standpoint, again, of the
8 waterbody, the source is not the issue. It's the
9 loading.
10 Q. But for clarification, was or emissions
11 from medical waste through incinerators and municipal
12 combusters in the same chemical form as emissions from
13 power plants?
14 DR. KEELER: We'll get into this a
15 little bit more when I give my testimony, but the form
16 of mercury that comes out of power plants, as well as
17 out of incinerators varies, depending on what plant, and
18 so forth, depending on the fuel used, the type of waste
19 that's combusted and so forth. A significant fraction
20 of the mercury that comes out of waste incinerators,
21 both medical waste, as well as municipal waste comes out
22 in on oxidized form or the reactive form of mercury. A
23 significant fraction of the mercury that comes out of
24 power plants is in that same form, so yes, the answer is
Page227
1 that it comes out in similar form. The exact proportion
2 is going to vary from plant to plant.
3 MR. HARRINGTON: Thank you.
4 MADAM HEARING OFFICER: Anything else.
5 Moving on to question 41.
6 MS. WILLHITE: "Are site-specific
7 factors relevant to determine whether or not and to what
8 extent reducing local anthropogenic mercury emissions
9 will result in reductions in methylmercury
10 concentrations in local fish species? I guess, to start
11 with, I haven't seen any studies in which reductions in
12 local anthropogenic mercury emissions did not result in
13 some reductions somewhere in the effected area of fish
14 tissue levels, but yes, I think that site-specific
15 factors are relevant in two aspects. First, as we've
16 been discussing, many factors about a particular
17 waterbody contribute to the rate and degree to which
18 inorganic mercury deposited in the waterbody will be
19 methylated available to bioaccumulate into fish tissue.
20 It's difficult to predict this for a particular
21 waterbody, so there is that aspect of site specificity,
22 although I will just repeat what I said before. In
23 spite of that, there seems to be amazing consistency
24 about the fact that we have fish tissue concentrations
Page228
1 in Illinois and these other states that have looked at
2 this issue that are above their fish consumption
3 advisory levels. The second aspect in which
4 site-specific issues are important is whether the
5 mercury emitted locally will deposit locally and this is
6 dependent on the form of mercury that's emitted. The
7 particulate and oxidized form deposits locally, whereas
8 elemental form deposits more distantly from the
9 emissions source, so if emissions from a nearby source
10 are depositing locally, there will be loading to the
11 waterbody and apportionment to the amount of local
12 deposition would be my assumption. Even though the
13 amount of mercury loading to a particular waterbody is
14 not the only factor that determines the amount of
15 contamination of fish tissue, if there wasn't any
16 loading, there wouldn't be any methylation. If there
17 was less loading, it would be less available for
18 methylation. We would expect fish tissue reductions in
19 nearby waters to be proportionate to the reductions in
20 local emissions that deposit in those waters.
21 DR. KEELER: Just an additional point
22 to that, the big variable that makes this discussion a
23 little bit more difficult is just the timing for when
24 the reduction will be seen in the biological system, so
Page229
1 in Florida, where the metabolism of the ecosystem is
2 very high, very warm climate, everything is moving very
3 fast. Things might show themselves much quicker, so
4 that 10-year time period that was seen in kind of
5 recovery of the Everglades may take longer, let's say,
6 in Massachusetts. The figures were, what? 40 percent
7 at this point. It may take 12 to 15 years. It's a
8 longer time frame, so the specifics of the ecosystem
9 have an effect on the timing, but the pattern is there,
10 but one cannot get at that by just taking a couple years
11 of data. It will take some time down the road.
12 MR. BONEBRAKE CONTINUES:
13 Q. Ms. Willhite, you indicated that the
14 methylation process varies from waterbody to waterbody.
15 Is that right?
16 A. That's my understanding.
17 Q. Given that, I don't understand how you can
18 say that there's going to be a proportional relationship
19 between reductions in mercury loading to a waterbody and
20 to fish mercury levels. Can you please explain that to
21 us?
22 A. Proportionate. I think that, if you have
23 a high amount of loading to a waterbody, there's going
24 to be -- and that gets reduced, there's going to be a
Page230
1 proportional, some relationship between the amount of
2 loading and the amount in the fish tissue.
3 Q. That relationship may be 10 percent?
4 A. Possibly.
5 Q. Five percent?
6 A. Eighty percent? You know it's
7 proportionate. There's a relationship between the two.
8 Q. But it might be a very small number?
9 A. Possibly.
10 Q. So as I understood it earlier, you were
11 saying that there was a one-to-one relationship between
12 reductions in loading and reductions in fish tissue
13 mercury levels. Is that still your view, Ms. Willhite?
14 A. I think that that's my personal belief,
15 and that is an assumption that's been made by other
16 states, as they look at how to deal with impaired
17 waters.
18 Q. I would like to follow-up with
19 Ms. Willhite before the microphone gets handed over, so
20 when we talk about a proportionate relationship, and the
21 fact that maybe only five percent, as you said, possibly
22 of the reduction of loading may be reflected in
23 methylmercury fish tissue levels. Given that
24 possibility, I don't understand your personal view that
Page231
1 there's a one-to-one relationship. Can you please
2 explain that to us, Mr. Willhite?
3 MR. KIM: I believe she has answered
4 this question in that she says that she's explained her
5 so forth and so on. She's also said it's her personal
6 opinion. I think this is repetitive. I think we have
7 already answered this.
8 MADAM HEARING OFFICER: I tend to
9 agree. I think she told us that's her personal belief
10 is based on the Florida study and what she's read. Is
11 there something more specific than that?
12 MR. BONEBRAKE: Maybe I could your
13 personal belief is there's a one-to-one relationship,
14 but you also said that you understand that the
15 relationship may be as low as five percent. If the five
16 percent, then, is not your view, I'm not sure what it
17 is. Can you tell us what it is?
18 A. My personal belief is that an expectation
19 is that you're going to get a big reduction -- you get a
20 big reduction in fish tissue, if you get a big reduction
21 in loading.
22 Q. Even though you recognize it may only be
23 five percent?
24 MR. KIM: She has answered the
Page232
1 question.
2 MADAM HEARING OFFICER: We're going to
3 move on. Dr. Keeler, you wanted to add something on the
4 one-to-one issue.
5 DR. KEELER: Just a clarification to
6 this modeling study, again, using the mercury cycling
7 model in different locations when you put in
8 environmental conditions for the place that you're
9 modeling, you put in a change in the deposition loading
10 and you get a commensurate linear relationship to the
11 amount of mercury that's in the fish, so you see a
12 decrease in loading. You see a decrease in the amount
13 of mercury on the fish based on the models. This isn't
14 -- and I think that's where we're seeing this conclusion
15 to be drawn from. The model predicts it, as long as you
16 use the right water quality measurements, and the
17 measurements of the fish in those ecosystems confirm
18 what the models suggested.
19 MR. BONEBRAKE CONTINUES:
20 Q. Mr. Keeler, you just said the actual data
21 supports the one-to-one relationship that the models
22 predicted in the Florida study?
23 A. Sure.
24 Q. Did we just look at a Table 12 on page 82?
Page233
1 Do you recall that, Mr. Keeler?
2 A. Yes.
3 Q. Doesn't the data in Table 12 indicate
4 that, approximately, half of the data points showed no
5 significant change in methylmercury fish tissue levels?
6 A. In this table, there are fish taken from a
7 variety of areas throughout the Everglades. This table
8 is meant to be representative of a large area from
9 northern Florida, central Florida and the Everglades, so
10 it says "Everglades," and then it gives you the
11 locations for these different places, so again, the
12 analysis that was done was for one specific area in the
13 Everglades where there was a very good relationship, so
14 I think, when you take a look at any type of
15 environmental measurements, where you're including
16 biological measurements, you are going to see
17 variability from one system to the other. You are going
18 to see a difference between fish taken from the same
19 ecosystem and that's to be expected. You -- I have
20 never seen data, in the 25 years I have been collecting
21 environmental data, where you see a perfect one-to-one
22 relationship when you are using any type of a biological
23 indicator, so you would expect to see, in some
24 locations, no change, and some places you wouldn't even
Page234
1 see an increase because of some type of localized change
2 in environment, so this data is over a very large area.
3 I think you're taking results from the report and
4 putting them together and drawing a different conclusion
5 then, if you read through the entire report in its
6 entirety, I think the conclusions that are printed out
7 are born out by the data in the report.
8 Q. What specific data point location,
9 Mr. Keeler, on Table 12 was the modeling point that you
10 with referenced?
11 A. Well, the work that was done was for water
12 conservation Area 3-A, and the point was 3-A-15. I
13 actually haven't looked at this table, specifically. I
14 just was looking at it just know showing it's all over
15 Florida, not just one specific location. There are
16 other data in the report I think that perhaps show
17 things, like even the following figure tissue
18 concentrations of mercury in largemouth bass at the L-57
19 canal shows a fairly clear trend I believe.
20 Q. But the Big Lost Man's Creek data point
21 shows no change, Mr. Keeler?
22 A. Which one?
23 Q. Big Lost Man's Creek on Table 12, second
24 from bottom.
Page235
1 A. I'm not, personally, familiar with where
2 Big Lost Man's Creek is.
3 Q. It's identified as being in the Everglades
4 in Table 12, correct?
5 A. The Everglades is the largest marsh area
6 in the world. It's a huge area. It could be completely
7 different than the area that we're referring to, so I'm
8 not sure where Lost Man's Creek is, if you could tell me
9 where it was.
10 Q. Well, but the issue is you don't know if
11 Big Lost Man's Creek was in the vicinity of the air
12 emission reductions, right, that were in question in
13 this report?
14 A. Again, "the vicinity." What does that
15 refer to when we are referring to air emissions.
16 Q. Well, my understanding was you were saying
17 that the data from the other data from the data points
18 in the Everglades that are reflected here are not
19 relevant because they may not be in the vicinity of the
20 sources from which there were emission reductions. Did
21 I misunderstand you?
22 A. I actually didn't say they weren't
23 relevant. What I was saying was they came from a large
24 area. I mean, to say "the Everglades" you would to be
Page236
1 more specific. Like, Miami Canal and L-67-A, I know,
2 for a fact, that goes through our study area, and even
3 there, you have one point where it indicates no trend at
4 .6 there, and I think that's what you would expect in
5 any type of an environmental sampling program.
6 Q. Do you know --
7 A. I don't think this data is important.
8 It's reflecting what you would see in a real
9 environment.
10 Q. Do you know for a fact which of the other
11 Everglades data point locations were in the study area,
12 as you refer to it?.
13 MR. AYRES: Could we refer to it?
14 MR. ZABEL: Is counsel advising the
15 witness or is he acting as an expert?
16 MADAM HEARING OFFICER: This is a
17 rulemaking proceeding, and if the two of them want to
18 want to discuss something, and then I'll bring you on
19 and if you want to object to what they have to say, you
20 are more than able to do this. This is a rulemaking,
21 and Mr. Ayres can say anything he wants right now, as
22 long as I swear him in.
23 MR. ZABEL: I agree. I would rather
24 him say it, than whisper it. I would like to know who
Page237
1 I'm cross-examining. Is it Mr. Ayres, or is it
2 Dr. Keeler?
3 MADAM HEARING OFFICER: I believe it's
4 Dr. Keeler. We've been going for about an hour and 20
5 minutes. This might be a good time to take a short
6 break.
7 (At which point in the proceedings, a
8 short break was taken.)
9 MADAM HEARING OFFICER: I believe we
10 are at Question No. 42 for Ms. Willhite. Wait a minute.
11 I believe for Dr. Keeler we had a follow-up.
12 MR. BONEBRAKE CONTINUES: I think
13 there was a question outstanding regarding the data
14 point locations on Table 12 that were within the study
15 area that Mr. Keeler had identified.
16 DR. KEELER: As I recollect from -- I
17 don't recall where all these sites are, but they are,
18 specifically, located across a very wide area from the
19 northern part of the Everglades to the southern, and the
20 variations that you are seeing here do reflect that.
21 The methylation and the levels of methylmercury in the
22 Everglades at these sites do vary dramatically, so you
23 do see differences due to local variations. If you look
24 at the data in the report, the report provides data, not
Page238
1 only for a specific area that we did modeling but also
2 provides some of this other data for some other areas
3 where ecosystem monitoring was taking place. This table
4 does not reflect loadings or differences in loadings to
5 any of these areas to go along with these trends that
6 they are talking about, so it's really impossible to
7 infer anything more from this table, except for it's
8 showing you some spacial variation.
9 MR. BONEBRAKE CONTINUES:
10 Q. Do you know, in fact, there were
11 differences in loading between the nine different data
12 points that are listed on Table 12 with respect to the
13 Everglades?
14 A. I don't have the spacial map to be able to
15 answer that question at this point, but I know that, at
16 least, two of -- a couple of these sites were pretty far
17 apart, like the U-3-B marsh and the L-67-A canal, for
18 example, or a long ways a part. The marsh U-3 site is
19 fairly far to the north where the methylmercury levels
20 are very low, and methylation rates are much lower and
21 the deposition rates are much lower, as well, but other
22 than that I don't have a recollection for where the rest
23 of these sites are. I'm hoping that I can get a map for
24 you. Then maybe I can present that tomorrow, but I
Page239
1 believe that's what this is reflecting, spatial
2 variability.
3 Q. The Florida report on page 88 -- and I
4 will let you get there -- is the first sentence in
5 "Discussion and Conclusion" section?
6 A. Yes.
7 Q. Reads, "Local emission rates of mercury in
8 south Florida appear to decline by over 90 percent since
9 peek levels occurring in the late 1980's to early
10 1990's." Do you know what geographic area is included
11 in the south Florida reference there, Mr. Keeler?
12 A. Again, that refers to south of Lake
13 Okachobee?
14 Q. Where were those sources of reduction in
15 relationship to the Everglades?
16 A. All of those sources are south of Lake
17 Okachobee. All the measurements were made in the
18 Everglades proper, which is entirely south of Lake
19 Okachobee, but you are talking about a fairly large
20 wetland. It's a third of a state, so --
21 Q. I think you had indicated that you were
22 involved with deposition modeling in connection with the
23 south Florida site studies?
24 A. Yes. I was involved in, both, modeling
Page240
1 and measurement as part of that study.
2 Q. Did the modelled impacts from the sources
3 from which there were mercury emission reductions, did
4 the modelled impact area include all of the data points
5 listed on Table 12 in the Everglades section?
6 A. Again, you asked me if I was involved in
7 the deposition modeling? And then you're asking me
8 about Table 12?
9 Q. I'm trying to get an understanding of, in
10 connection with the deposition modeling, did you model
11 an area of impact for mercury emissions?
12 A. I'm sorry. I don't understand your
13 question.
14 Q. Did you do any work in connection with the
15 Florida study to identify the specific locations in the
16 Everglades where mercury emission deposition would
17 decrease?
18 A. We used the actual emissions data from all
19 the sources south of Lake Okachobee and modeled the
20 deposition to south Florida, yes.
21 Q. So I understand that correctly, for each
22 of the nine data points on Table 12 with respect to the
23 Everglades, is there actual data available that shows
24 the amount of mercury being deposited over time?
Page241
1 A. Again, until I can get if map showing
2 where these nine sites are, I can't be sure.
3 Q. I will reserve further follow-up for
4 further testimony.
5 MADAM HEARING OFFICER: Absolutely.
6 DR. KEELER: It's very likely the
7 answer is yes, but I just have to make sure because we
8 did focus on Water Conservation Area 3-A, which is in
9 the eastern portion of the Everglades. It was a very
10 specific body of water which had fairly homogenous
11 properties as if it was one big lake because it's a
12 subsection on the Everglades.
13 MS. WILLHITE: Question 42: "Were the
14 emission reductions at issue in either Florida or
15 Mississippi study from electric-generating units?" South
16 Florida had relatively few coal-fired electric
17 generating units as sources in Southern Florida during
18 the time of the analysis attributed 98 percent mercury
19 loading in Everglades from atmospheric deposition, but
20 identified municipal and medical waste incineration as
21 their biggest emission sources. The Massachusetts --
22 the reductions in the Massachusetts study were not due
23 to electric-generating units. The next question, "What
24 were the sources of reduced air emissions in those
Page242
1 studies?" The answer is incinerators.
2 MR. BONEBRAKE CONTINUES:
3 Q. With respect to incinerators, I think you
4 indicated, Ms. Willhite, that incinerators emit a higher
5 percentage of the oxidized form of mercury than EGU's.
6 Is that correct?
7 A. I don't remember saying that.
8 DR. KEELER: I said that.
9 MADAM HEARING OFFICER: Dr. Keeler.
10 DR. KEELER: I made a statement
11 similar to that. I said that the tested incinerators
12 have shown a higher fraction of their total mercury
13 emissions in the reactive form than the average that
14 have been reported for coal-fired utilities. However,
15 there is variability in that, and so individual power
16 plants could emit the same proportion, a very high
17 fraction of their mercury in a reactive form.
18 Q. I'm sorry. I may have confused the two of
19 your testimony.
20 MR. RIESER CONTINUES:
21 Q. Dr. Keeler, with respect to that last
22 statement regarding emissions of -- can I call it RGM
23 for coal-fired plants? Is that the right term? Is it
24 your testimony that coal-fired power plants emit the
Page243
1 same high proportion of RGM's incinerators?
2 A. No, sir. That's not what I'm saying.
3 Q. Let me -- explain it, please.
4 A. Incinerators -- it will depend upon
5 whether it's municipal or medical waste. Both of them
6 will emit more 80 percent in the form of reactive
7 mercury. The average that has been reported for
8 utilities is something like 67, plus or minus 20 or 15.
9 I can't remember the exact state of deviation, but that
10 was reported by the industry, so it's a lower average
11 than incinerators, in general, but I'm saying the range
12 can be, for an individual power plant, it could be as
13 large as 80 percent.
14 Q. Does that range depend on the type of coal
15 burned in the power plant?
16 A. Yes.
17 Q. And with respect to sub-bituminous coal,
18 would the range be less than 80 percent?
19 A. Sub-bituminous coal should have a lower
20 fraction of reactive mercury.
21 Q. By lower fraction, what's your
22 understanding of what that number may be?
23 A. Well, again, the average that I have seen
24 reported was 67, plus or minus, 15 or 20 percent, so it
Page244
1 would be at the lower end of that, so less than 15
2 percent.
3 Q. In doing -- that will do it. Thank you.
4 MADAM HEARING OFFICER: Are we ready
5 to go on to Question 43? 43 or 44?
6 MS. WILLHITE: I thought we were on
7 44. "In the second full paragraph on page 3 of Ms.
8 Willhite's" --
9 MS. BASSI: That's 45.
10 MS. WILLHITE: "What is the percentage
11 of anthropogenic emissions in Florida and Massachusetts
12 from coal-fired power plants?" "According to the
13 Florida study, power generation accounted for 0.4
14 percent of anthropogenic mercury emissions in south
15 Florida. In Massachusetts, 40 percent of mercury
16 emissions are identified as coming from
17 electricity-generating units, including 11 percent from
18 instate coal combustion and the remainder from
19 out-of-state sources.
20 MR. RIESER CONTINUES:
21 Q. Ms. Willhite, the answer -- the question
22 doesn't say a specific time, but are those numbers drawn
23 from before or after both states discontinued their
24 medical waste and municipal waste combusters.
Page245
1 A. Well, I believe that the Florida study
2 occurred after the reduction. The Massachusetts study I
3 believe is ongoing.
4 Q. So the numbers that you just provided,
5 those percentages that are drawn from the two studies,
6 the Massachusetts and the Florida study that we have
7 been talking about?
8 A. Yes. I think, actually, the Massachusetts
9 figure comes from their alternative TMDL document.
10 Q. Thank you.
11 MS. WILLHITE: "In the second full
12 paragraph on page three of Ms. Willhite's testimony, she
13 states that `Several of the lakes in Illinois that are
14 listed for fish consumption impairment due to mercury
15 and that have the highest fish tissue levels of mercury
16 detected in the state have no point source discharges
17 into the water at all.' With respect to the statement,
18 A, what lakes is she referring to?" The lakes that are
19 listed as impaired for mercury, but do not have current
20 point source discharges are Lake in the Woods, Lake
21 Arrowhead, Midlothian (phonetic) Reservoir, Monee --
22 M-O-N-E-E -- Reservoir, Kincade Lake, Campus Lake, Cedar
23 Lake and Devil's Kitchen Lake. B: "What point source
24 discharges are historically and what nonpoint sources,
Page246
1 currently or historically, discharge, or discharged to
2 these lakes?" There have been no point source
3 discharges into these lakes over the past 34 years. Our
4 records do not extend beyond that time. Nonpoint source
5 discharges would be storm water runoff from the
6 surrounding watersheds of these lakes, mainly sediment
7 and whatever is attached to the soil particles. Three
8 of the four lakes in the southwestern part of the state,
9 and those are Kincade, Cedar and Devil's Kitchen are
10 surrounded, mainly, by forest land, Shawnee National
11 Forest and Campus Lake is on the campus of Southern
12 Illinois University. The lakes in the northeast part of
13 the state, Lake in the Woods, Lake Arrowhead, Midlothian
14 Reservoir and Monee Reservoir are in watersheds
15 containing urban residential and park district land
16 uses. I just wanted to review the question again. The
17 question asked for what nonpoint sources currently or
18 historically discharged to these lakes, and I mentioned
19 runoff based on the way the question is phrased is,
20 obviously, atmospheric deposition is another nonpoint
21 source.
22 MR. BONEBRAKE CONTINUES:
23 Q. I think you said "nonpoint discharges have
24 occurred to these lakes in the last 34 years."
Page247
1 A. According to our records.
2 Q. I'm curious. Are any of the lakes that
3 you mentioned today, any of these lakes that you
4 mentioned, receive any flow from any of the impaired
5 streams or rivers that you haven't identified?
6 A. No, sir, not that I know of.
7 MS. WILLHITE: 45-C: "What are the
8 contributions of natural mercury sources in out-of-state
9 man-made sources to mercury levels in these waters and
10 to fish in these waters?" The answer is as noted in the
11 response to Question 25. We do not believe there are
12 natural sources of mercury within the state that would
13 be likely to influence mercury levels in fish tissue.
14 We have not conducted any assessment of the contribution
15 of out-of-state manmade sources to mercury loading to
16 the lakes named above.
17 MR. BONEBRAKE CONTINUES:
18 Q. Just a clarification, when you say "we" in
19 the last response, do you mean the Agency?
20 MS. WILLHITE: Correct.
21 MADAM HEARING OFFICER: Question 46.
22 MS. WILLHITE: "In the last full
23 paragraph on page three of her testimony, Ms. Willhite
24 states that other states that have drafted TMDL's on
Page248
1 mercury-impaired water, that is, Georgia, Minnesota, and
2 Maryland, have allocated a high percentage of loading
3 from atmospheric deposition. With respect to this
4 statement, A, what is the basis for this statement,
5 including what document, studies or reports is
6 Ms. Willhite relying upon?" My testimony on the
7 allocation by other state TMDL's of a high percentage of
8 mercury loading to atmospheric deposition is based on my
9 review of the draft, or final TMDL documents. I have
10 reviewed the draft statewide mercury TMDL for Minnesota,
11 which is entitled "Statewide Mercury TMDL Plan," and
12 it's on the Minnesota Pollution Control Agency website.
13 I reviewed three of the 25 mercury TMDL's developed for
14 Georgia entitled "Total Maximum Daily Load for the Monee
15 River"; "Total Maximum Daily Load for the Obechee
16 River"; and "Total Maximum Daily Load for the Savannah
17 River" found on the U.S. EPA Region 4 website. I
18 reviewed two of the 10 mercury TMDL's developed by
19 Maryland Department of Environment entitled "Total
20 Maximum Daily Load for Big Piny Run Reservoir"; and
21 "Total Maximum Daily Load for Long Raven Reservoir"
22 found on the U.S. EPA Region 3 website. B: "What were
23 the identified sources of this atmospheric deposition?"
24 And C: "How much of this deposition was attributed by
Page249
1 Georgia, Minnesota and Maryland, respectively, to
2 sources in other states and countries?" In the three
3 TMDL's that I reviewed from Maryland, Maryland
4 attributed 100 percent of the mercury loading to the
5 waterbodies coming from atmospheric deposition. Power
6 plant emissions were identified as the largest source of
7 mercury emissions in the state. In its TMDL's, Maryland
8 did not allocate loading between in-state and
9 out-of-state sources. In the three TMDL's I reviewed
10 from Georgia, 99 percent of the loading to the impaired
11 waters was attributed to atmospheric deposition. Power
12 plants were identified as the largest in-state source of
13 mercury deposition. Georgia attributed, approximately,
14 36 percent of the atmospheric deposition as coming from
15 global sources. Minnesota's two-draft statewide TMDL's,
16 one for the northeast portion of the state, the other
17 for the southwest part of the state, attributed 99.5
18 percent and 97.8 percent of mercury loading as coming
19 from atmospheric deposition. Minnesota allocated 10
20 percent of the atmospheric deposition to in-state
21 sources and 90 percent from outside the state. Question
22 47 -- I'm sorry -- D: "Is the Agency aware of states
23 that have drafted TMDL's for mercury-impaired waters
24 that have not allocated a high percentage? Tab one:
Page250
1 "If so, which states?" Two: "Why?" I'm not aware of
2 states that have drafted TMDL's for mercury-impaired
3 waters where atmospheric deposition is not the major
4 contributor. Question 47: "In the summary on page four
5 of her testimony, Ms. Willhite says that atmospheric
6 deposition of mercury can be an important source of
7 loading to impaired waters, and Illinois emission
8 sources may contribute a notable portion of deposition
9 within Illinois. With respect to this statement, what
10 are the factors impacting whether, and to what extent,
11 mercury entering the waterbody will ultimately end up in
12 fish tissue?" The answer is, both, the amount of
13 mercury loading, and the amount of methylation of
14 inorganic mercury into methylmercury affects the extent
15 to which mercury ends up in fish tissue. B: "What does
16 the term "notable" mean?" Notable means worth
17 mentioning. I will just add that "notable" can mean,
18 perhaps in this context, that, even if only five percent
19 of mercury emitted by Illinois coal-fired power plants
20 is deposited in the state, that's still an order of
21 magnitude 10 times higher than the amount of mercury
22 that's directly discharged to Illinois waters according
23 to our records. That would make deposition from
24 Illinois emission sources a notable source of loading to
Page251
1 Illinois waterbodies.
2 MR. RIESER: I'm sorry. Could you read
3 that answer back, please?
4 (At which point, the prior answer was
5 read by the court reporter.)
6 MR. RIESER CONTINUES:
7 Q. Ms. Willhite, is your contention that all
8 the mercury deposited by Illinois sources is
9 automatically loaded to Illinois waters?
10 A. No. My contention is a portion.
11 Q. We don't know what portion that is,
12 correct?
13 A. Correct. I wish we did. My goodness,
14 wouldn't that make this afternoon go quickly?
15 Q. It might even support the Rule. In your
16 discussion about five percent, even if five percent of
17 the Illinois emissions -- that's just a hypothetical.
18 That's not a number that is meaningful in this
19 discussion, correct?
20 A. Correct. I picked a number that sounded
21 pretty low.
22 Q. Thank you.
23 MR. BONEBRAKE CONTINUES:
24 Q. Your five percent comparison does not
Page252
1 include nonpoint source discharges. Is that correct?
2 A. No. I'm talking directly about emissions.
3 If five percent of the emissions from Illinois EGU's is
4 deposited in the state, then that's still a notable
5 loading to Illinois waterbodies.
6 MADAM HEARING OFFICER: But that's a
7 nonpoint source.
8 MS. WILLHITE: Correct. Did you mean
9 other nonpoint sources?
10 MR. BONEBRAKE CONTINUES:
11 Q. You were comparing it to something, and I
12 wasn't sure what you were comparing it to?
13 A. Point source loading directly.
14 Q. You were comparing it to point source
15 loading?
16 A. Correct.
17 MR. HARRINGTON CONTINUES:
18 Q. Let's just make sure the record is clear.
19 That does not include combined sewer overflows. Is that
20 correct?
21 A. We do not monitor for mercury.
22 Q. Thank you.
23 MR. KIM: Before Ms. Willhite answers
24 the next question, I have a stack of documents that -- I
Page253
1 have the Massachusetts and the Florida Reports and our
2 Florida reports are in color, so they might actually, if
3 you don't mind -- since we have already gone over this,
4 in case it comes up again --
5 MADAM HEARING OFFICER: That would be
6 wonderful. Then I am going to substitute the color as
7 an exhibit, as Exhibit 20, as they said, it is identical
8 and we will do that. The Massachusetts report that we
9 have been discussing, I will admit as Exhibit 21, unless
10 there is an objection. Seeing none, we will mark that
11 as Exhibit 21. Ms. Willhite, you can continue.
12 (Exhibit No. 21 was admitted.)
13 MS. WILLHITE: 47-C: "What is the
14 basis for her conclusion that a notable portion of
15 deposition within Illinois may come from Illinois
16 emission sources?" The basis for my statement that a
17 notable portion of deposition within Illinois may --
18 may come from Illinois emission sources is based on my
19 review of the work of various scientists. I have
20 reviewed the results of modeling by the University of
21 Michigan of mercury emissions sources that show the area
22 of highest deposition as being closest to the source in
23 Illinois and other Great Lakes states. I have reviewed
24 the results of modeling by the National Oceanic
Page254
1 Atmospheric Administration that identifies Illinois and
2 Indiana sources of mercury air emissions as being the
3 most significant contributor to Lake Michigan, leading
4 to their conclusion that areas closest to large mercury
5 sources are going to be most impacted by local
6 deposition, whereas, in more remote areas, deposition
7 from global sources will be most important. I have
8 reviewed the results of modeling by U.S. EPA that
9 identified Chicago as a location of highest deposition
10 in the state and that 63 percent of the mercury
11 deposited there was coming from Illinois sources. I
12 have seen a presentation by Dr. Keeler of the results of
13 the Steubenville Deposition Monitoring Study indicating
14 that 70 percent of mercury deposited there was from
15 nearby coal-fired power plants. I have seen
16 Pennsylvania's summary results of their deposition
17 monitoring study that show that mercury deposition at a
18 site downwind of a coal-fired power plant was 47 percent
19 higher than at a site not influenced by power plant
20 emissions. I have seen presentations on mercury
21 monitoring by United States Geological Survey at a site
22 in East St. Louis, which showed significantly higher
23 mercury concentrations up to 10,000 times higher than
24 remote settings, and that the specific mercury species
Page255
1 showing the increase are associated with sources, and
2 that monitoring shows large spikes that change with the
3 wind direction.
4 MR. RIESER CONTINUES:
5 Q. With respect to the study that you
6 described regarding the impacts in Chicago, 63 percent
7 coming from local sources, which study was that, please?
8 A. It was the results of REMSAD modeling that
9 U.S. EPA did.
10 Q. And is that -- have you reviewed the CMAQ
11 modeling that was introduced as part of the CAMR record?
12 A. I think I have seen the display, but I
13 haven't reviewed the Technical Support Document.
14 Q. I'm sorry?
15 A. I said that I think I have seen results of
16 CMAQ modeling, but I haven't reviewed the CAMR Technical
17 Support Document.
18 Q. So you don't know whether the CMAQ
19 modeling is consistent with the REMSAD modeling you were
20 describing?
21 A. CMAQ is a large regional scale model, and
22 what I have seen is that the predictions tend to be I
23 think someone said complimentary.
24 Q. And REMSAD is not a large-scale model?
Page256
1 A. Well, this is the water program bureaucrat
2 talking. My understanding is that there's, like,
3 regional large scale modeling, and there's source
4 apportionment modeling and I put CMAQ in the large
5 regional scale model and REMSAD in the source
6 apportionment model. That may not be correct, but that
7 is my understanding.
8 Q. To wrap up, I suppose my questions about
9 modeling would be better directed to Dr. Keeler?
10 A. Or somebody else, but me.
11 Q. Good enough. Thank you.
12 MR. BONEBRAKE CONTINUES:
13 Q. Just a follow-up to that. I assume,
14 Ms. Willhite, that you do not consider yourself an
15 expert in deposition modeling?
16 A. That's correct.
17 MS. BASSI CONTINUES:
18 Q. When Mr. Ross was testifying he said that
19 we had to ask you, Ms. Willhite, specifically, why the
20 deposition modeling was stopped for Illinois or why it
21 was incomplete. Is that another question?
22 A. It is, actually.
23 Q. How about that for a segway?
24 A. I can answer it now or I can answer it
Page257
1 later, whichever.
2 MR. BONEBRAKE: Was that going to be
3 in response to the next question, Ms. Willhite?
4 MS. WILLHITE: No. It's question --
5 MADAM HEARING OFFICER: It says 47-D.
6 MS. WILLHITE: Yes, you're right, it
7 is. I didn't have my glasses on.
8 MS. BASSI: Sorry. I forgot that --
9 MADAM HEARING OFFICER: I think we are
10 ready to move on to D.
11 MS. WILLHITE: "Has the Agency modeled
12 or caused to be modeled mercury deposition in Illinois
13 by Illinois sources?" One: "If so, over what period?"
14 Two: "What where are the results?" Three: "Who
15 performed the modeling? The Agency, itself, or some
16 other entity?" Well, knowing that Illinois would need
17 to submit a state plan to U.S. EPA by November, 2006,
18 the Bureau of Water initiated modeling through a
19 contractor in November of 2005 with a goal of looking at
20 mercury deposition within the state from in-state
21 sources, but before the project was completed, I decided
22 that the large scale modeling was not going to be very
23 useful at this point, and I would also add to that that
24 the source apportionment type of modeling has its
Page258
1 limitations, as well. So I admit to pulling the plug on
2 the project. I was paying for it so I get to do that.
3 At this point, the Bureau of Water has concluded that
4 monitoring would really be the most useful tool in
5 trying to answer the question of deposition to impaired
6 waters and that's what we are pursuing.
7 MR. RIESER CONTINUES:
8 Q. The type of modeling that you were doing
9 was what type of modeling."
10 A. Camex, C-A-M-E-X, which I would call a
11 regional -- large regional scale model.
12 Q. What were the problems that you saw with
13 doing that type of modeling?
14 A. My impression was that it didn't answer
15 the question sufficiently of what is the local
16 deposition picture. That's my impression. The source
17 apportionment, it also gives you an idea, but I just
18 didn't feel it was -- either of those tools were really
19 useful enough to help us understand. I've been
20 persuaded that both of those, whichever kind of model
21 you are talking about may not sufficiently take into
22 account all factors, and that monitoring would really be
23 the best tool to answer the question.
24 Q. When you use the term "source
Page259
1 apportionment modeling" is that the type of modeling
2 that Dr. Keeler -- you understand Dr. Keeler did in
3 Steubenville?
4 A. I don't know. I put -- and again, this is
5 the end user's categories that I'm setting up here is I
6 would put something like REMSAD or hy-split or something
7 like that in those categories of source apportionment,
8 and again, this is the end user's observation. I wanted
9 to have this question answered because I need to
10 understand what the loading picture is and what
11 contribution that might be from sources within the
12 state.
13 Q. And so in order to answer the question of
14 what where the loading was coming from, you felt it was
15 better that you get better information by doing fish
16 tissue sampling? Is that correct?
17 A. No, deposition monitoring. Deposition
18 monitoring, and I was particularly impressed by the type
19 of monitoring that Dr. Keeler presented, which helped to
20 understand what the source of the loading is, because I
21 think we are all interested in that question.
22 Q. What have you started or had somebody
23 start on working on the deposition of monitoring system?
24 A. No. We're in the beginning stages of
Page260
1 figuring out how we can go about that. Illinois, along
2 with other states, are looking at trying to get some
3 money through the Great Lakes Atmospheric Deposition
4 Source, and we're also looking into procuring those
5 services of monitoring just within Illinois, and that's
6 a pretty long process.
7 Q. Do you know whether that type of
8 deposition monitoring would help predict the impact of
9 different regulatory choices, such as 90 percent
10 reductions?
11 A. No. The question -- I believe that
12 monitoring helps you understand what's going on now or
13 what's going on during the course of the monitoring, and
14 I think that modeling -- that's probably a tool that
15 could be -- or a reason that it could be useful is to
16 try and predict what would happen, but the question that
17 I wanted to have answered is what is the situation now.
18 Q. Would the monitoring allow you to identify
19 the source of the material that was being deposited in
20 the monitoring?
21 A. Well, as I said, I saw a presentation that
22 Dr. Keeler gave in February that suggested that there
23 are monitoring approaches that can help you understand
24 that through the trace element analysis that goes along
Page261
1 with the mercury.
2 Q. Thank you.
3 MS. BASSI CONTINUES:
4 Q. Would that -- following up on Mr. Rieser,
5 then, and I think I might be repeating a question, but I
6 didn't hear an answer that it sounded like was to the
7 question. Would the results of this monitoring which it
8 sounds like effectively could be some kind of source
9 tracing back monitoring, help to guide regulatory
10 decisions that the Agency might make?
11 A. Well, it would certainly help from the
12 water program standpoint to understand what amount of
13 loading, A, is coming to impaired waters and which is
14 important to the TMDL process, and B, if we understand
15 what the source is, then that helps us with the
16 implementation of how you deal with that loading.
17 Q. And this may be a question -- I don't know
18 -- perhaps Dr. Keeler is the person to answer this, but
19 I thought -- does CAMEX have a source apportionment
20 feature to it? Does anyone know?
21 DR. KEELER: Any of the deterministic
22 or source-oriented models can keep track of the
23 emissions that they emit from each source, so how much
24 is emitted, they know the rate, and they can keep track
Page262
1 of those emissions, so they can, if asked, work
2 backwards to determine how much mercury deposited over
3 whatever -- either over the state of Illinois or over
4 the state of Ohio, came from whatever is out there, so
5 implicit it the model is the ability to do that type of
6 work. All those models are source-receptor models, and
7 they can answer that question.
8 MR. HARRINGTON CONTINUES:
9 Q. Exactly why would did you kill this study?
10 MS. WILLHITE CONTINUES: I'm not sure
11 exactly. It was early spring.
12 MR. HARRINGTON CONTINUES:
13 Q. February? March?
14 A. Yeah.
15 Q. That range?
16 A. Yeah.
17 Q. Did you consult with the Bureau of Air at
18 that time?
19 A. About pulling it?
20 Q. Yes. The effect of pulling it and
21 development of rulemaking?
22 A. I didn't consult with them on that issue.
23 Q. Do you know if they represented in public
24 meetings that there was such a model going on?
Page263
1 A. Yeah. I think I saw that.
2 Q. And if that was repeated, the model
3 results would be made available?
4 A. Well, we said it was on, but I don't blame
5 you for the conclusion that the results would be
6 provided.
7 Q. If you were monitoring -- if you were
8 developing a waste load allocation for a stream, would
9 you do a model to determine which sources caused the
10 exceedence?
11 A. No. The waste load allocation is what
12 amount of loading from a point source is the highest
13 amount that could be discharged to the stream and still
14 meet water quality standards, and yes, you very often do
15 use a model to try and come up with that allocations.
16 Q. Particularly, if you have multiple sources
17 contributing to that stream?
18 A. Yes.
19 Q. Particularly, if there are, both, chemical
20 and physical reactions that effect the concentrations of
21 the pollution in the stream. Is that correct?
22 A. I'm not sure if they are sophisticated
23 enough to take care of the interactions. I think it's
24 purely a simulation of how it gets there.
Page264
1 Q. Thank you. That's all I have at this
2 time.
3 MR. BONEBRAKE CONTINUES:
4 Q. Had any deposition modeling results been
5 generated at the time that you pulled the plug on the
6 project?
7 A. I got a preliminary look, yeah, but no
8 final results.
9 Q. What was the form of that preliminary
10 look?
11 A. A picture.
12 Q. Just a map showing modeling results?
13 A. Yeah.
14 MS. BASSI CONTINUES:
15 Q. Were those results not what you were
16 expecting to see?
17 A. I wanted to be able to see, you know, down
18 to really close to the plant, and this was showing me
19 the whole eastern United States. It wasn't what I
20 expected to see.
21 MR. BONEBRAKE CONTINUES:
22 Q. Do you recall what it demonstrated with
23 respect to Illinois?
24 A. It demonstrated that I couldn't see what I
Page265
1 wanted to see. I couldn't see close -- I couldn't see
2 the impaired waterbodies that were close to sources,
3 what the situation was there.
4 Q. Did you provide that map to anyone else
5 within the Agency?
6 A. It was provided to me -- I mean, I worked
7 with Rob Kaleel to arrange for the modeling.
8 MR. RIESER CONTINUES:
9 Q. Did you recall who the modeler was who
10 performed the study.
11 A. I don't recall. I'm sorry.
12 Q. And do you recall whether you had any
13 discussions with the modeler about trying to improve the
14 resolutions, so that you could focus on areas within the
15 state?
16 A. That's what we had envisioned when we
17 first contracted for it, but that we would go through at
18 an iterate phase, but as I learned more about what the
19 limitations were for modeling from my perspective,
20 again, as the end user, I was convinced that monitoring
21 would be more useful.
22 Q. Would it be possible to see a copy, have a
23 copy submitted to the board?
24 A. Of --
Page266
1 MADAM HEARING OFFICER: The
2 preliminary modeling I believe is what he's asking for,
3 the picture you saw.
4 MS. WILLHITE: Believe it or not, I
5 didn't retain a copy. I don't know.
6 MR. KIM: I don't know that there's
7 any testimony that's been given that that was relied
8 upon in generating the rule, so I'm not sure what the
9 relevance of that would be, anyway.
10 MADAM HEARING OFFICER: I think it's
11 -- personally, I would find it very relevant. It's one
12 of the issues we're talking about, the deposition of
13 mercury on surface waters and the effect of that. I
14 think that whether you relied on it or not has some
15 relevance in these hearings, and if the Agency does have
16 a copy of that, I think we would all be interested in
17 seeing that, so if you can check to see if there's
18 another source than Ms. Willhite that might have it.
19 MR. KIM: We can look.
20 MADAM HEARING OFFICER: Thank you.
21 Anything else on D? Moving on to E, then.
22 MS. WILLHITE: "What is the extent of
23 loading to impaired waters from Illinois emission
24 sources? What studies and reports support this
Page267
1 contention? Please provide copies of any such studies
2 or reports." As previously noted, we have not noted --
3 we have not conducted this analysis. 48: "The Agency's
4 TSD at page 73, states that the lakes where the ambient
5 mercury levels were higher than the water quality
6 standard are not the lakes with the specific fish
7 consumption advisories, i.e. not listed as impaired. A:
8 Of the 52 stream samples and 32 lake samples cited on
9 this page of the TSD, were samples from only three
10 streams and only two lakes above the water quality
11 standards for mercury?" Yes. The significance is that
12 the amount of mercury in water is not necessarily
13 correlated to the amount in fish tissue. 48 B and C:
14 "Which lakes and streams were above the standard? C:
15 Are the locations of these two lakes and three steams
16 identified on figures 4.3 and 4.2 respectively?" Yes.
17 Question 49 --
18 MADAM HEARING OFFICER: You didn't
19 answer B. Which lakes and streams?
20 MS. WILLHITE: I'm sorry. The lakes
21 were Depew and Sunashwein (phonetic), both are shallow
22 back-water lakes of the Illinois River. The three
23 stream sites were Moveterre Creek (phonetic) which is
24 identified as DDO-4 that's the watershed ID similar to
Page268
1 what you saw on the table earlier. The Sangamon River
2 at Oakford, location E-25 and the Illinois River at
3 Peoria, D-30. Samples from each of these sites --
4 MR. BONEBRAKE CONTINUES: I did,
5 although were you still answering some part of 48?
6 MS. WILLHITE: Samples from each of
7 these sites had exceedences of 0.012 micrograms per
8 liter at high flows and spring samples. Samples
9 collected from none of the three sites at the lower flow
10 time, in the fall, had exceedences of 0.012 micrograms
11 per liter.
12 MR. BONEBRAKE CONTINUES:
13 Q. I think you said that the level of mercury
14 in the water, the ambient water, was not correlated to
15 levels of mercury in the fish tissue. Is that right?
16 A. That's what I concluded from the fact that
17 we didn't see in the lakes that had fish consumption
18 advisories high levels in the water.
19 Q. Do you have an explanation for that lack
20 of correlation?
21 A. Not entirely. It's like it must be some
22 place else, in the sediment, or some place else.
23 DR. HORNSHAW: I just asked
24 Ms. Willhite if the measurement is as total mercury or
Page269
1 as methylmercury? She indicated that it's total mercury
2 and that pretty much explains why it has to really be in
3 the methyl form before it can be significantly taken up
4 by the fish.
5 MR. HARRINGTON CONTINUES:
6 Q. Am I correct that the methylation process
7 takes place in a zone that's collected at the innerface
8 of the water and sediment, primarily, in anaerobic
9 conditions and the presence of sulfur.
10 MS. WILLHITE CONTINUES: Yeah. I
11 mean, I would probably add to it that where ever you
12 have anoxic conditions and sulfate type of bacteria, and
13 most likely, that's at the innerface there. I suppose
14 it could also happen in suspended particulates in the
15 anoxic zone of a lake.
16 Q. So the mercury that usually is methylated
17 is in the sediment, or at that point, in the water
18 column, the sediment, water innerface, correct, just in
19 general?
20 A. Where ever the critters are, yeah.
21 Q. So basically, the mercury -- to enter into
22 this process has to be in a sediment form at the point
23 the process is entered into?
24 A. I think it just needs to be where the
Page270
1 bacteria are located with the conditions that allow them
2 to live, and that could be sediment. That could be
3 suspended particulate.
4 Q. So we're talking particulate or in the
5 water column at that point or in the form of sediment,
6 correct?
7 A. Right.
8 Q. And in fact, I think you just said -- and
9 correct me if I'm wrong -- that the high mercury levels
10 in the streams were found at times of high flow
11 springtime?
12 A. In the spring, yeah.
13 Q. Also, at the time of maximum runoff. Is
14 that correct?
15 A. Sounds like it. I'm not certain.
16 Q. Usually, also at the time of maximum
17 sediment in the stream. Is that correct?
18 A. Again, I'm not certain.
19 Q. Well, going back earlier today, you were
20 asked questions about the role of mercury in the soil,
21 sediment, sludge pads -- I don't think I mentioned those
22 at the time -- coal waste entering into the waterway and
23 attributing to methylmercury. Do you recall those
24 questions?
Page271
1 A. I recall the questions.
2 Q. I think you are referring to some
3 geologist that said they wouldn't be available.
4 A. I said --
5 Q. For methylation.
6 A. I said that in answering the question
7 about natural sources. I said that there's a background
8 level of mercury in soil, but there aren't significant
9 deposits of cinnabar, which would be a significant
10 natural source of mercury.
11 Q. Well, what I mentioned was coal waste,
12 which does have the same amount of mercury as the coal
13 that goes to coal-fired power plants I believe. Is that
14 correct?
15 A. Yeah. My understanding is that it doesn't
16 leach out of that matrix into the water.
17 Q. But the particles or sediment do get
18 washed in the waterways. Is that correct?
19 A. Potentially.
20 Q. They end up in the sediment or in the
21 water column as sediment. So does biological action
22 possibly remove the mercury from this material and
23 convert it into methylmercury?
24 A. I'm sorry. I -- this is just not my area.
Page272
1 Q. Thank you very much. I will reserve
2 questions for later.
3 DR. HORNSHAW: I would just want to
4 add one thing to what you're saying. You had mentioned
5 that these levels occurred in the spring time. High
6 flow situations and streams in the spring time,
7 generally, oxygenate the water highly, so I doubt if you
8 would have anoxic conditions in highly flowing water in
9 the spring time.
10 MR. HARRINGTON CONTINUES:
11 Q. But you do have some periods deposits of
12 sediment particularly in the back waters behind the dams
13 for example, in the Illinois River. Is that not
14 correct?
15 A. Yes, but these are water samples.
16 Q. Correct, but the water samples do filter
17 those?
18 A. I don't think so, but I'm not the one to
19 ask that.
20 Q. Thank you. Maybe one follow-up. If
21 you're not the right person, or we need to go elsewhere,
22 please correct me. You mentioned earlier that the
23 discharge for BOTW's are low in mercury, correct?
24 MS. WILLHITE CONTINUES:
Page273
1 A. Correct, well, relatively. It's
2 measurable.
3 Q. Are the influence to BOTW's low in
4 mercury?
5 A. I'm not aware of influential data we have
6 on the affluent.
7 Q. You're not aware of any of the data that's
8 showing significant mercury in-flows from --
9 A. I hear what you're saying. I have not
10 heard the information provided quite that way. What I
11 understand is that, when you look at affluent data for
12 mercury from BOTW's and look at what the sources are,
13 that potentially, waste can be a big, by mass, portion
14 of that.
15 Q. Biological processes in well-run treatment
16 plants tend to remove that mercury and deposit in
17 sludge, do they not?
18 A. I have heard maybe kind of a 50/50 split.
19 Q. Then that sludge then contains the mercury
20 and the element that was removed in affluent?
21 A. A portion of it.
22 Q. Depending on how that's used and deposited
23 of, that will, again -- is potentially available to the
24 waterways, if it becomes part of the runoff?
Page274
1 A. Yes.
2 MS. WILLHITE: I believe we are to 49.
3 "At page 69, the TSD states that the statewide average
4 of all point source discharges of mercury 0.02229791
5 tons per year was only 0.745 percent of the base year
6 total emissions of mercury, 2.99466 tons per year in
7 Illinois. With respect to this statement, what is the
8 base year used in these calculations?" By "base year" I
9 interpreted that to mean that year of emissions was
10 represented here, and I answered the question -- in the
11 TSD, the year was 1999, and my testimony, the year was
12 2002. Question B: "What air emission sources were
13 included in the calculation of air emissions?" And that
14 was all coal-fired EGU's.
15 MADAM HEARING OFFICER: Mr. Forcade.
16 CROSS EXAMINATION BY MR. FORCADE:
17 Q. I have a series of questions on point
18 sources which I can ask, if is the appropriate thing,
19 but first, I would like to try and have a small
20 housekeeping matter, if I could. Several times today
21 there's been a reference to Kincade Lake. I believe
22 that came from Dr. Hornshaw, originally. Could you tell
23 me, geographically, where that lake is?
24 DR. HORNSHAW: Far southwest corner of
Page275
1 the state. It abuts on the Shawnee National Forest. I
2 believe it's east of Carbondale.
3 MR. FORCADE CONTINUES:
4 Q. But more particularly, it is not --
5 A. I'm sorry, west of Carbondale.
6 Q. More particularly, it is not a lake
7 adjacent to the Kincade generating plant?
8 A. The Kincade generating plant at Sanchris
9 Lake?
10 Q. The one on -- south of Springfield.
11 A. It's on Sanchris Lake.
12 Q. Is that the Kincade Lake you're talking
13 about?
14 A. No. That's Sanchris Lake, and there's
15 also --
16 Q. This is how far from the Kincade
17 generating station would you say?
18 A. Which lake?
19 Q. The lake Kincade you discussed as having
20 high levels of mercury in the fish, in the sediments.
21 A. Versus the Kincade power station?
22 Q. Yes.
23 A. 150, 200 miles.
24 Q. I was just trying to put the distance in
Page276
1 there.
2 A. It's in I believe in Jackson County, if
3 you know where that is. Kincade Lake.
4 Q. If I could, I have some questions for
5 Ms. Willhite. Could you tell me how many NPDS point
6 source discharges there are in the state of Illinois?
7 MS. WILLHITE CONTINUES:
8 A. I'm not sure I can tell you the total
9 number of point source discharges. I can better tell
10 you the number of NPDS permits. Sometimes they have
11 several discharge points and that universe is around
12 4,000.
13 Q. Could you tell me the total number of
14 annual gallons discharged by this NPDS per units?
15 A. No.
16 Q. Give me a rough approximation?
17 A. No. I'm sorry. I don't know. Millions
18 and millions of gallons, kind of like McDonald's.
19 Q. Could you tell me what the detection limit
20 in a typical NPDS limit for monitoring mercury?
21 A. No. I would speculate that it would need
22 to be low enough that we can understand what the
23 affluent is compared to the human health standard.
24 Q. Would a per part billion be in that
Page277
1 general range?
2 A. I would think it would need to be lower
3 because our water quality standard is 12 parts per
4 trillion.
5 Q. So part per trillion, perhaps?
6 A. Our lab gets down to .05 parts per billion
7 so --
8 Q. A typical NPDS permit would be somewhat
9 higher than your lab can give?
10 A. Say that again, please.
11 Q. Is the standard test protocol in NPDS
12 permits for mercury detection, would you expect that to
13 be a somewhat higher detection limit than the EPA lab
14 can achieve?
15 A. I don't know.
16 Q. I will show you where I'm going, and
17 earlier you were talking about the statistical analysis
18 of fish samples and other samples, and I believe you
19 stated that, when a nondetect was present, it was
20 appropriate for statistical purposes to use, either
21 detection limit, or one half of the detection limit for
22 averaging?
23 A. Right.
24 Q. Is that correct? If I could direct your
Page278
1 attention to page 68 of the Technical Support Document.
2 A. Okay.
3 Q. I believe, in there, you calculated a
4 series of loadings to Illinois streams for mercury for
5 facilities where they were above the detection limit,
6 and also -- or those where there was no detection limit.
7 Do you know what that detection limit was for mercury?
8 A. No.
9 Q. You've also calculated, from that, a value
10 of, approximately, 45 pounds of mercury per year. For
11 the facilities that were not tested, what value did you
12 assume in calculating the 45 pounds per year of mercury
13 discharges from point sources in the state of Illinois?
14 A. For the facilities that weren't tested?
15 Q. That were not tested.
16 A. For mercury?
17 Q. Yes.
18 A. This is based on the data that we do have,
19 the testing that was conducted.
20 Q. Absolutely. I agree with you there. What
21 values did you assume in a statement that says, "The
22 average annual loading of 45 pounds per mercury per
23 year," what value did assume for the facility that did
24 not have value testing?
Page279
1 A. I'm still not following you.
2 Q. You say that, "Waste water discharges
3 contribute an annual loading of 45 pounds per year of
4 mercury to Illinois streams." Is that correct?
5 A. Correct, on an average basis, yeah.
6 Q. Is that for all waste water discharges?
7 A. That is for -- my understanding is that
8 all BOTW's test for mercury and industrial dischargers
9 that we believe have mercury in their process, and so
10 therefore, might have some mercury in their discharge,
11 so it's for those point source discharges that are in
12 those categories.
13 Q. And out of the 10,00, approximately, NPDS
14 permits --
15 A. 4,000.
16 Q. 4,000, was it -- issued in the state of
17 Illinois, how many of those have a requirement for
18 mercury testing?
19 A. Like I said, I believe all BOTW's and the
20 portion of industrial dischargers that we believe might
21 have mercury in their discharge.
22 Q. So I'm getting for the facilities that do
23 not have mercury testing, did you assume a value of 30
24 or are they simply not included in the calculation at
Page280
1 all?
2 A. They are not included in the calculation.
3 Q. You can't give me what proportion of the
4 NPDS permit had mercury testing completed?
5 A. No.
6 Q. Would it be possible to get that number?
7 A. Get the number of --
8 Q. My suggestion is that the number may be
9 higher if you evaluated at all NPDS discharges or all
10 point source discharges in the state of Illinois and if
11 you use the standard statistical averaging test that you
12 use for your fish samples, which is one half of the
13 defection limit, and multiply, by that, the total flow
14 from all point source discharges, I believe you come up
15 with a number that's dramatically higher than 45 pounds,
16 so what I'm trying to explore is to what extent you have
17 made any accommodation for the untested facilities and
18 if so, did you use the same statistical protocol that
19 you used when the information was evaluating fish
20 concentrations of mercury?
21 A. No. We have not done that analysis.
22 Q. Would you be able to do so?
23 A. I could check and see.
24 Q. For the facilities that are required to
Page281
1 test for mercury and in their NPDS discharges, am I
2 correct that that would be a filtered sample?
3 A. I don't know.
4 Q. Would it be possible to check on that?
5 A. I will check.
6 Q. Would it be correct to assume that, if we
7 are not talking about methylated mercury, that there
8 would be a portion of the mercury that would be adhering
9 to any total suspended solids present in the discharge?
10 A. I don't know.
11 Q. Would it be possible to check on that?
12 A. Check on --
13 Q. Whether or not it is possible that some of
14 the mercury would be adhering to the total suspended
15 solids in the discharge. The question I'm trying to
16 find out is if you done a full and complete job of
17 evaluating the impact of point source discharge mercury
18 on the streams of the state of Illinois by a simple
19 statement that, "Of the facilities we tested, of the
20 filtered, I believe, samples that we have evaluated the
21 total is 45," and it seems to me that may be a
22 misleading number if some of those assumptions are
23 incorrect, so I'm just simply trying to find out what
24 are those assumptions?
Page282
1 A. What was presented in the TSD and in my
2 testimony is based on the data that we have.
3 Q. Yes, but that particular caveat is not
4 present in that sentence, is it?
5 A. Where are you looking again?
6 Q. Page 69 and page three, I believe it is,
7 of your testimony. It says, "All point source
8 discharges," doesn't it? It doesn't say, "of those that
9 we happened to look at."
10 A. Yeah. That would be a correct statement.
11 Q. Is appendix C of the Illinois 2004,
12 Section 303-D, a document that's been entered into the
13 record?
14 A. What about the 2004 303-D list, including
15 all appendices.
16 MADAM HEARING OFFICER: Yes.
17 MR. FORCADE: This is where the
18 compilation is located if I could --
19 MADAM HEARING OFFICER: I can tell
20 you, specifically, it's document No. 17 attached to the
21 Technical Support Document. I checked on that over
22 lunch.
23 MR. FORCADE: If I could, I would like
24 to reserve the right to ask additional questions, if the
Page283
1 Agency can provide some responses to the questions I
2 asked so far.
3 MR. KIM: That's fine. I know Mr.
4 Forcade asked if we could look into doing some
5 additional -- I will be honest with you. I'm not sure
6 what that entails. I will leave that up to Ms. Willhite
7 to determine how time intensive, if at all, it will be.
8 If it's something we can do, certainly we will try and
9 do that, but I haven't had a chance to talk to her, so I
10 don't know how much time and effort that will involve.
11 We will try to get what we can done, if it's not going
12 to be all that difficult.
13 MR. FORCADE: I will work all night on
14 the Internet to see what I can find, too.
15 DR. GIRARD: I have a follow-up
16 question. Is there a list somewhere of 195 point
17 sources identified as contributors of mercury to
18 Illinois surface waters?
19 MS. WILLHITE: Yes.
20 DR. GIRARD: Is that list in any of
21 the documents already in the record?
22 MS. WILLHITE: I'm not sure if we
23 provided it as an attachment to the TSD or not. I would
24 have to check. I thought we had provided that. I can
Page284
1 check into that and find out, but I believe that list
2 was generated as part of this book, from the look of
3 things.
4 MR. FORCADE: I don't have the numbers
5 for the two exhibits, unfortunately I got a copy that
6 doesn't have the numbers on it. But one is entitled
7 "Mercury Impaired Segments in 2004 303-D. And the other
8 one is entitled "Current Level of Mercury in the
9 Sediment and Waters Listed as Impaired Due to Mercury."
10 MADAM HEARING OFFICER: Those are
11 Exhibits 16 and 17, respectively.
12 MR. FORCADE CONTINUES:
13 Q. I appreciate that. Is it possible for us
14 to get some method of correlating the locations for the
15 listing in Exhibit 17 with the location, either of the
16 segment ID in 16, or more particularly, the
17 identification of the facilities you believe may be
18 contributing mercury to the stream, so that we can
19 compare them?
20 A. Yes. I have already been asked to provide
21 a key to how those segments are located on the river and
22 I would think we would be able to provide which facility
23 goes with which segment.
24 Q. Thank you.
Page285
1 MADAM HEARING OFFICER: Anything
2 further?
3 MR. ZABEL CONTINUES:
4 Q. Just a follow-up of Mr. Forcade. As I
5 read the TSD, 195 sources are sampling from mercury.
6 177 had detects; 58 did not. Mr. Forcade I believe
7 asked about all NPDS sources in the state. I'm curious
8 about the 58 that you actually had sampled are,
9 presumably, below the detection limit. Did you make any
10 assumption as to their mercury contributions to the
11 waterways.
12 A. I would have to check back with the person
13 who did the calculation and find out the answer to that
14 question.
15 Q. It may be a subset of what Mr. Forcade was
16 asking, but I wanted to be clear.
17 DR. HORNSHAW: I would like to make a
18 follow-up statement to Mr. Forcade. You said that it
19 seems reasonable to assume the entire universe of
20 permits have one half the detection limit as their
21 discharge, similar to what we do in the official
22 advisory program. For the fish advisory program, we
23 think it's a reasonable assumption that assume that
24 there is some mercury present in all the fish filet 's
Page286
1 because mercury is a naturally-occurring element, has
2 got to be present in sediments at some level, and
3 because of that, we assume that it's going to be present
4 in fish tissue at some level, and since our lab has
5 changed over to detection limits that used to be .1
6 milligram per kilogram, and now they are achieving
7 detection limits in the range of .01 to .03 parts per
8 million, the little bit of data that we have with these
9 new detection limits seems to bear that out because
10 there is very few samples now that are less than the new
11 detection limits. I'm not sure that it's appropriate to
12 make the same assumption for all of the dischargers in
13 Illinois, at least, the industrial dischargers because
14 if their processes do not include mercury, it doesn't
15 seem reasonable that their discharges would contain
16 mercury, the same as what we make the assumption in the
17 fish advisory program. In other words, I don't think
18 there's much naturally-occurring mercury that would be
19 of an industrial process, versus in sediments.
20 MR. FORCADE CONTINUES:
21 Q. I believe my question was posed towards a
22 statistical evaluation method and if that method is not
23 true, I would appreciate it if we could walk over to the
24 Land Division where I'm arguing that issue and I could
Page287
1 certainly use the support.
2 DR. HORNSHAW: Was that a question?
3 MR. RIESER CONTINUES:
4 Q. I have a question. What when you talk
5 about naturally-occurring mercury, is there any
6 quantification of that?
7 A. In sediments?
8 Q. Yes.
9 A. The Bureau of Water has data on
10 concentrations in lake sediments and stream sediments
11 across the state. I don't recall whether mercury is one
12 of the elements that's included in that survey data. We
13 do have information for some samples across the state
14 for soils, and that information shows mercury
15 consistently less than one part per million in soil that
16 is are considered to be background. I would have to
17 look at the Bureau of Water data to know whether they
18 have information, as well, on sediments.
19 MR. HARRINGTON CONTINUES:
20 Q. You said one part per million in soils?
21 A. In soils across the state, yes,
22 considerably less than one parts per million.
23 MR. BONEBRAKE CONTINUES:
24 Q. Is there a level that's considered
Page288
1 background methylmercury in fish?
2 A. Not that I have ever seen.
3 Q. I have a follow-up for Ms. Willhite, as
4 well, as it relates to Table 4.7 on page 68 of the TSD.
5 A. Okay.
6 Q. Your testimony that's reflected in
7 Question 49 that you read previously refers to point
8 source discharges of mercury .02229791 tons per year,
9 and that number is reflected in one of the columns in
10 Table 4.7. Is that correct?
11 A. Yes.
12 Q. That's identified as the average load?
13 A. Correct.
14 Q. There's also a column to the right of that
15 that is identified as maximum load tons per year?
16 A. Correct.
17 Q. The number there is 1.48999215 tons per
18 year. Is that correct?
19 A. Right.
20 Q. If we compare that number to mercury air
21 emissions, we're pretty close to 50 percent, aren't we,
22 relating back to your Question 49 where, in your
23 testimony, you had identified about three tons per year
24 of mercury air emissions?
Page289
1 A. Right, correct.
2 Q. Can you describe for us how the maximum
3 load of 1.5 tons per year was calculated?
4 A. Yeah. I'm just trying to refresh my
5 memory on that one.
6 (A small break was taken.)
7 MADAM HEARING OFFICER: I believe we
8 had a pending question for Ms. Willhite.
9 MS. WILLHITE: Yeah. We were looking
10 at the TSD, page 68, Table 4.7, and I was asked what's
11 the difference between the average load and the maximum
12 load columns there. And this represents sampling data
13 between 1986 and 2005. The average load represents what
14 the average load from the facilities within that
15 watershed are. The maximum load was, if you took the
16 maximum value from every facility, and assume that that
17 was the load to the waterbody, that's what the maximum
18 load is, but I think that that's the answer.
19 MR. ZABEL CONTINUES:
20 Q. This is probably for Dr. Hornshaw. Your
21 response to Mr. Forcade about the appropriateness of
22 looking at all NPDS permits. What I'm focusing on are
23 the 58 facilities the Agency apparently believes there's
24 some reason to require mercury sampling for. Those 58
Page290
1 were also below the detection limit. Would your
2 response be the same for those?
3 DR. HORNSHAW: For those, I would say
4 it would be appropriate to use half the detection limit
5 or some other substitute value for purposes of
6 statistical calculations. That would be appropriate
7 because you would have a reason to suspect mercury could
8 be present at some concentration.
9 Q. Was that done, determining the 45 pounds?
10 A. I can't answer that.
11 MS. WILLHITE: I don't know, either.
12 MR. ZABEL CONTINUES:
13 Q. One follow-up, Mr. Hornshaw. Would be
14 appropriate for 29 of them to be from zero, to half the
15 detection limit, and the other 29 from half to the
16 detection limit?
17 DR. HORNSHAW:
18 A. I think that would be appropriate, or just
19 use half the detection limit for each one of the values.
20 MR. BONEBRAKE CONTINUES: The maximum
21 load discharge column that you just mentioned,
22 Ms. Willhite, is the maximum data -- the maximum levels
23 of mercury in the discharge or is it maximum permitted
24 level of discharge.
Page291
1 MS. WILLHITE CONTINUES:
2 A. It's in the discharge. It's the measure
3 level times the flow.
4 Q. Is the maximum -- the highest
5 concentration of level in the discharge or highest level
6 of flow?
7 A. I don't know.
8 MR. RIESER CONTINUES: I have another
9 question for Dr. Hornshaw that goes back to something he
10 said before the break. I think you were asked by
11 Mr. Bonebrake about whether there was a background level
12 of methylmercury for fish and I think you said that you
13 weren't aware of one was your answer.
14 DR. HORNSHAW CONTINUES:
15 A. That's correct.
16 Q. If -- am I correct that it's your
17 assumption, based on the information you have, that,
18 because of the presence of naturally-occurring mercury
19 in sediments that you would expect to see a certain
20 level of methylmercury in all the fish that you
21 observed?
22 A. Correct.
23 Q. If that's the case, wouldn't there be --
24 wouldn't it be possible to derive a background level of
Page292
1 methylmercury from fish?
2 A. If you had detection limits low enough,
3 yes.
4 Q. So when you say that you weren't aware of
5 one, what you were saying was that you weren't aware of
6 any scientific study or anything of that nature that had
7 derived such a background limit?
8 A. That's what I meant, yes.
9 Q. But in fact, you do expect to see a
10 certain amount of methylmercury in all fish due to
11 naturally-occurring mercury in the sediments?
12 A. Yes.
13 MADAM HEARING OFFICER: Anything
14 further? Close No. 50.
15 MS. WILLHITE: "In her testimony
16 summary, Ms. Willhite also states that `Failure to
17 control particular units that significantly contribute
18 to local deposition means that the source of loading
19 will remain and elevated levels of fish will continue.'
20 With respect to this statement, A, what particular units
21 in Illinois quote significantly contribute to local
22 deposition?" B: What is the evidence of such
23 contribution of these -- by these units? C: What
24 specific fish population is being referred to in this
Page293
1 statement?" I wasn't referring to any identified unit,
2 but rather making the general statement about EGU's that
3 contribute loading to impaired waterbodies. If you read
4 the sentence in the context of where it was in my
5 testimony, maybe you will get a better sense of the
6 point that the Federal CAMR allows compliance with
7 emissions cap by permitting coal-fired units to purchase
8 credit, and thereby do not have to control its mercury
9 emissions. If that particular unit in that situation
10 emits mercury that deposits locally to ambient water,
11 then failure to control that unit will result in ongoing
12 mercury loading to the impaired waterbody from the
13 uncontrolled source. My point is that the trading
14 process impairs my ability to deal with impaired water.
15 MS. BASSI CONTINUES:
16 Q. Is it the trading process or is it the
17 controlling process that effects impaired waters.
18 A. My understanding of trading is that one
19 can purchase allowances to avoid controlling, so the
20 failure to control.
21 Q. So if one controls, trading is a nonissue.
22 Is that correct?
23 A. From the perspective of loading, yes.
24 Q. Thank you.
Page294
1 MADAM HEARING OFFICER:
2 Mr. Harrington.
3 MR. HARRINGTON CONTINUES: Coming back
4 to that statement, could I have that long answer read
5 back.
6 (At which point, the previous answer
7 was read by the court reporter.)
8 MR. HARRINGTON CONTINUES: If a unit
9 is controlled to 80 percent, rather than 90 percent, is
10 that going to cause a particular problem?
11 A. I think you asked me if it was 80 percent,
12 instead of 90 percent, does that continue to present a
13 problem? Was that a rephrasing?
14 Q. Yes.
15 A. 80 versus 90 is an issue of how far can we
16 go? You know, what's the best that can be achieved, and
17 as I have said before, we are in a situation where
18 according to our calculations, we have to get 90 percent
19 reduction in fish tissue levels in order to get below
20 advisory levels, so it would be helpful to go as far as
21 we can.
22 Q. 90 percent reduction in fish tissue levels
23 is not, in any way, based on 90 percent reduction from
24 each EGU. Is that correct? They are two independent
Page295
1 numbers?
2 A. The 90 percent reduction in fish tissue
3 levels is what I need in order to get below advisory
4 levels, and get out from under the impairment issue.
5 Q. So as I understand it, what you're saying,
6 from your point of view, what you need is the most
7 reduction that you can get that are technically feasible
8 from the various units that are involved?
9 A. Yes.
10 Q. And would it be fair to say that the
11 language of the Environmental Protection Agency
12 "technically feasible and economically reasonable from
13 those units"?
14 A. I have no opinion on that.
15 Q. On trading, back up. Units electrical --
16 are you familiar with the electrical generating units in
17 Illinois, their respective sizes, etc.?
18 A. I haven't met a single one.
19 Q. We'll reserve those questions for somebody
20 else. Thank you.
21 MR. RIESER CONTINUES:
22 Q. Is it fair to say that your answer to this
23 question as to what particular units significantly
24 contribute in Illinois significantly contribute to local
Page296
1 deposition is that you don't have any data that ties a
2 specific unit to specific deposition?
3 A. Correct. I'm making the general statement
4 that, in order to reduce loading, if you have deposition
5 from those particular units, you need to reduce the
6 emissions, so we can reduce the loading.
7 MR. BONEBRAKE CONTINUES:
8 Q. Is it also true, at this point, that you
9 don't know the level of mercury deposition into Illinois
10 waters that's attributable to out-of-state sources?
11 A. That's true.
12 Q. Is it, therefore, true that the
13 contribution of mercury deposition from such sources
14 could continue to cause elevated mercury levels in fish
15 tissue, even if 90 percent reductions in emissions from
16 EGU's in the state were to occur?
17 A. It's possible. I suppose if you had
18 really intense deposition, very high levels, 90 percent
19 might still not get below advisory levels.
20 Q. Well, if, for instance, 10 percent of the
21 mercury deposition in the state was attributable to out
22 of state sources -- that's purely a hypothetical number
23 -- then that 10 percent would continue, notwithstanding,
24 the reductions that would be accomplished for in-state
Page297
1 EGU's with the proposed rule. Is that right?
2 A. Yes, as I have mentioned before. I
3 believe that has been identified in other states that we
4 are likely getting deposition from in-state sources and
5 out-of-state sources, and this rule is going to help us
6 focus on what we can do for in-state sources, but it
7 will not deal with sources outside the state.
8 Q. Therefore, isn't it likely that Illinois
9 would continue to have impaired waters for mercury, even
10 following a 90 percent reduction rule for EGU's in
11 Illinois?
12 A. It's possible. It really depends on what
13 amount of loading at a particular waterbody is coming
14 from an in-state source, versus an out-of-state source.
15 Q. At this point in time, you simply don't
16 have that information?
17 A. No.
18 Q. I think you mentioned earlier that, at
19 least, in some states that have confronted this issue
20 they have acknowledged that control of emissions mercury
21 emissions from other states was going to be necessary in
22 order for them to eliminate their impaired waters for
23 mercury. Is that correct?
24 A. Yes.
Page298
1 MADAM HEARING OFFICER: Anything
2 further? Question 51.
3 MS. WILLHITE: "How many currently
4 identified impaired waterbodies in Illinois would no
5 longer be impaired if the Illinois mercury rule proposal
6 is adopted? A: When would such waterbodies no longer
7 be considered impaired? B: Which waterbodies would no
8 longer be impaired? C" would the failure of neighboring
9 states to adopt a rule similar to the Illinois mercury
10 proposal change Ms. Willhite's answers to these
11 questions? D: Please explain the basis for
12 Mr. Willhite's answers." I kind of feel like I have
13 answered this question.
14 MADAM HEARING OFFICER: Ms. Geertsma.
15 CROSS EXAMINATION BY MS. GEERTSMA:
16 Q. I had a question that's sort of related to
17 51-C. Do you believe that Illinois passing this rule
18 will have any influence on other neighboring states
19 passing a similar rule?
20 A. I don't know.
21 Q. Do you believe that, if neighboring states
22 did pass similar rules, that there would be an
23 additional cumulative benefit if Illinois were to pass
24 this, as well?
Page299
1 A. Yes, from the standpoint of if -- by
2 "similar rule" you mean a rule that would go further
3 than the federal rule because all states, of course,
4 have the obligation to adopt the federal rule or some
5 state alternative. If neighboring states were to adopt
6 a rule that required every unit to control, by a large
7 degree, that would be an improvement over a situation
8 where, within Illinois, we would be controlling to 90
9 percent with no trading allowed, and that would be
10 particularly important for those impaired waters that
11 might be impacted by surrounding states and surrounding
12 EGU's that might not have to do the controls under the
13 federal program.
14 MR. RIESER CONTINUES:
15 Q. We certainly did talk about the issues in
16 51 a great deal, but just to summarize for the record
17 the answer of how many currently identified impaired
18 waterbodies would no longer be impaired if the Illinois
19 mercury rule proposal is adopted is the Agency doesn't
20 know.
21 A. Correct.
22 Q. Thank you.
23 MADAM HEARING OFFICER: Moving on to
24 question No. 52.
Page300
1 MS. WILLHITE: "How many currently
2 impaired waterbodies would no longer be impaired if the
3 CAMR is adopted in Illinois? A: When would such
4 waterbodies be no longer considered impaired? B: Which
5 waterbodies? C: Explain the basis for Ms. Willhite's
6 answers." We have not identified which waterbodies
7 would be no longer impaired as a result of CAMR, and nor
8 have we identified when or which waterbodies would no
9 longer be impaired. It pretty much goes along with the
10 answers we have been discussing.
11 MADAM HEARING OFFICER: Question No.
12 53.
13 MS. WILLHITE: "At page 61, the TSD
14 states that TMDL's are complicated. The mechanisms
15 controlling mercury accumulation in fish tissue are
16 variable and difficult to model resulting in
17 questionable results. Finally, state water programs are
18 challenged in addressing atmospheric loading of mercury
19 which has been shown to be a dominant contributor to
20 many waters because the sources may be outside the
21 watershed state or nation. With respect to these
22 statements, A, what is a "dominant contributor"?
23 Dominant contributor means most important. As noted
24 above, most states that have evaluated loading to
Page301
1 impaired waterbodies allocated 98 to 100 percent loading
2 to atmospheric deposition. B: "What are the mechanisms
3 that control the accumulation of mercury in fish
4 tissue?" I think we have noted pretty well what factors
5 are related to methylation. C: "Has the Agency
6 performed any studies, or is it aware of any study
7 concerning these mechanisms in Illinois waters?" No. D
8 and E: "Why are these mechanisms difficult to model and
9 why are these results questionable?" I think that
10 Dr. Keeler did a really good job of answering this
11 question in saying that it's difficult in resource
12 intensive to model these mechanisms because they are
13 numerous. They are interdependent and they are, in some
14 cases, poorly studied. If you want to have an accurate
15 model result, you would have to assure what the
16 parameters in the model, or the suite of parameters that
17 are important in a particular waterbody, and that you
18 have site specific data to input to the model. Results
19 may be questionable, but there was not much
20 site-specific data to support the model and the default
21 values and assumptions were used instead.
22 MR. BONEBRAKE CONTINUES:
23 Q. A follow-up question with respect to your
24 answer regarding the question of why are the results
Page302
1 questionable, is it your view then, Ms. Willhite, that
2 there is some uncertainty regarding the results of
3 modeling efforts that have been undertaken to project
4 levels of methylmercury in fish tissue?
5 A. There can be, if there's not good data
6 underlying the model effort.
7 Q. And at this point in time, are you aware
8 of any model that doesn't have, at least, some level of
9 uncertainty?
10 A. I'm not aware of any model that doesn't
11 have some level of uncertainty.
12 MS. WILLHITE: "What models are
13 available to assess these mechanisms?" This is F. We
14 have not explored what models are available to simulate
15 methylation. G: "Has the Agency used any of those
16 models to support its proposed mercury rule? No.
17 MS. BASSI CONTINUES:
18 Q. Dr. Keeler, is the model water cycling
19 model you were taking about earlier one of these
20 mechanisms for one of these models?
21 DR. KEELER CONTINUES: As best as I
22 understand the question, yes. It is a model that does
23 have methylation process mechanism built into it.
24 MADAM HEARING OFFICER: Anything
Page303
1 further?
2 MR. KIM: I believe, if there are no
3 other questions, concerning the Dynegy questions that
4 were presented to Ms. Willhite, there are a couple other
5 sets that she was going to answer, as well. First of
6 all, I think there was one question I think was
7 presented to her by Prairie State, and actually reading
8 this, it seems to me that, in one answer or another,
9 she's probably answered it, but she can speak to that.
10 MADAM HEARING OFFICER: Let's read it
11 into the record.
12 MS. WILLHITE: "Has Illinois conducted
13 a detailed analysis to show the incremental reductions
14 in mercury deposition, what the incremental reductions
15 in mercury deposition would be in going beyond CAMR to
16 the proposed standard? If so, has IEPA analyzed how
17 these reductions, assuming reductions will occur, affect
18 mercury levels in fish in Illinois?" The answer is no.
19 MR. KIM: And then, in the general
20 questions that I believe Dynegy presented to the
21 Illinois EPA, we identify questions four, five, six,
22 seven and eight as arguably irrelevant. However, in the
23 interest of trying to provide as much information to the
24 Board, Ms. Willhite will be answering those questions
Page304
1 now, if that's okay to do so.
2 MADAM HEARING OFFICER: That's great.
3 Let's do that.
4 MR. KIM: And question four, too, if I
5 didn't say that. She can answer four. Otherwise, she
6 would be doing five and I have exhibits associated with
7 these questions. As long as I'm making the walk, we had
8 discussed earlier during Dr. Rice's testimony that there
9 was a Motion for Reconsideration that had been filed by
10 the state of California in regards to the lawsuit that
11 was subject of some discussion, and I think we had said
12 we would try to get a copy of the Motion for
13 Reconsideration for the Board and we have that, as well.
14 It's kind of out of place, but we just got copies. Do
15 you want me to give you that now?
16 MADAM HEARING OFFICER: Sure.
17 MR. BONEBRAKE: Are you aware whether
18 a response to that motion was filed?
19 MR. KIM: We don't know at this point.
20 I don't think we have anything.
21 MADAM HEARING OFFICER: Rather than
22 mark these now, I will mark them as Ms. Willhite gets to
23 them, and they will be 22, 23, 24, but we'll wait and
24 mark them as she gets to them. I think we should start
Page305
1 with Dynegy's Question No. 4.
2 MS. WILLHITE: I don't know the answer
3 to Question No. 4.
4 MR. KIM: I apologize. I should have
5 -- Question No. five.
6 MADAM HEARING OFFICER: Question No.
7 5.
8 MS. WILLHITE: There were four
9 questions that were asked for four different lakes.
10 Question five is related to Clinton Lake. Question 6 is
11 related to Sanchris I think, Springfield, Sanchris and
12 Baldwin. Were the exhibits provided?
13 MR. KIM: Yes.
14 MS. WILLHITE: So we answered the
15 questions in tabular form for each of the four lakes and
16 the first question is, "What type of bottom do the lakes
17 have?" And the answer for all of them is the bottom
18 subtracers are composed of fine particle sediment.
19 A. The next question is "What is the typical
20 ambient water temperature in the lake?" And that
21 information is summarized I guess on the first exhibit
22 or is it --
23 MADAM HEARING OFFICER: We'll make it
24 the first exhibit. "The Typical Ambient Temperature in
Page306
1 Sanchris, Clinton and Baldwin Lakes" will be marked as
2 Exhibit 22, if there is no objection. Seeing none, it
3 is Exhibit 22.
4 (Exhibit No. 22 was admitted.)
5 MS. WILLHITE: So these are
6 temperature measurements that have been taken at various
7 times showing the range of ambient temperatures for the
8 lakes. The next question is "Would the lake be a likely
9 spot for mercury methylation?" And the answer is, with
10 any lake, yes.
11 MS. BASSI CONTINUES:
12 Q. When you say "with any lake" you mean any
13 of these four or do you mean any lake in the whole state
14 of Illinois, including Lake Michigan?
15 A. When I asked my lake expert that question,
16 that was the answer that they gave me. Question D:
17 "What is the mercury content of fish in Sanchris,
18 Springfield, Clinton and Baldwin Lake?" And that is the
19 next exhibit.
20 MADAM HEARING OFFICER: We will mark
21 that as Exhibit 23, if there's no objection. Seeing
22 none, it is Exhibit 23.
23 (Exhibit No. 23 was admitted.)
24 MS. WILLHITE: I think that concludes
Page307
1 the questions.
2 MR. RIESER CONTINUES:
3 Q. Ms. Willhite, the data with respect to the
4 mercury amounts, mercury content in Exhibit 23, is that
5 data taken from Dr. Hornshaw's exhibits, which were,
6 like, 15, 16, 17?
7 DR. HORNSHAW CONTINUES:
8 A. It's from the same database, but a current
9 printout. The stuff I presented earlier ends at around
10 2000, and the data that are in this table are current
11 through whatever day last week I printed it out.
12 Q. Do you know whether there are multiple
13 fish involved in each lake? Does this mercury content
14 represents an average or is this one sample per lake?
15 A. In each of those represents an individual
16 sample. All of the samples that we use in a fish
17 contaminant program of, at least, the filet samples are
18 composites of, hopefully, five fish, but at least, three
19 fish of similar size. That information was in the
20 printout I presented, and it looks like they edited it
21 out. They are only presenting weight, length, and
22 mercury concentration. The printout that I gave you
23 earlier for Sherman Park Lagoon is what I provided to
24 the Bureau of Water and they have edited it.
Page308
1 Q. Is the complete database on fish mercury
2 content in fish that you're discussing, has that been
3 presented to the Board in this proceeding, as part of
4 the TSD?
5 A. The complete data base?
6 Q. Yes.
7 A. No.
8 Q. So we have just seen bits and pieces of
9 it?
10 A. Yes.
11 Q. Is there some way to present it in a way
12 that doesn't overwhelm the Board? Do you have it by --
13 A. All 11,300-some samples? No.
14 Q. That's what I'm asking.
15 A. The answer is no.
16 Q. The answer is no, but if we wanted samples
17 from individual lakes, those could be presented for
18 individual stream segments?
19 A. Yes.
20 Q. Thank you very much.
21 MADAM HEARING OFFICER: Anything else?
22 MR. KIM: If there are no further
23 questions for Ms. Willhite, the next witness that we
24 have would be Dr. Keeler. And since we are fairly close
Page309
1 to quitting time, I was wondering if it would be a good
2 idea to start with him fresh in the morning.
3 MADAM HEARING OFFICER: Before we do
4 that, we are going to mark the Motion to Reconsider as
5 Exhibit 24? No objection? It's marked as Exhibit 24.
6 (Exhibit No. 24 was admitted.)
7 DR. GIRARD CONTINUES:
8 Q. Could we go back to Exhibit 23 and ask a
9 few more clarifying questions and that's the mercury
10 content of the fish, Dr. Hornshaw. I have some
11 questions just to clarify here. For instance, at the
12 top of this table, we have got four largemouth bass
13 samples from Sanchris Lake and we have got sample,
14 weight and sample length, so sample weight would be an
15 average weight of four or five fish.
16 DR. HORNSHAW CONTINUES:
17 A. Correct.
18 Q. And the length then would be --
19 A. Yes.
20 Q. -- a sample and then, so we don't have any
21 years associated with this. This was just pulled off
22 the database?
23 A. There are years with the original table
24 that I presented. They have cut that out, as well.
Page310
1 Q. And then I also notice over in the mercury
2 levels that we have a nondetected 0.1 milligrams per
3 kilogram of fish weight. I assume that's probably an
4 older one because I notice we have some detection
5 limits, like 0.05 and 0.02, so I would assume that those
6 would be numerous samples with the newer equipment.
7 A. That's not necessarily true. There are a
8 hand full of values in the older database that are less
9 than .1, and I don't know why the lab reported values
10 less than .1 for certain years, and most all the rest of
11 the years they reported is just less than .1. I think,
12 from my recollection of the database, that where there
13 are values less than .1 in the older data it's all from
14 one particular year and I don't know why that is.
15 Q. So there are no notes in there whether
16 that was sent out to another lab?
17 A. I could probably find that out from the
18 raw data sheets because that would have an indication of
19 which lab did the work.
20 Q. So the data -- the raw data, itself, talks
21 about which lab did the work?
22 A. Yes.
23 Q. Thank you.
24 MADAM HEARING OFFICER: Anything
Page311
1 further? Then I do think we will adjourn for the day.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Page312
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
8 Illinois Pollution Control Board, Springfield, Illinois,
9 Marcia Willhite, who was first duly sworn by me to
10 testify the whole truth of her knowledge touching upon
11 the matter in controversy aforesaid so far as she should
12 be examined and her testimony was taken by me in
13 shorthand and afterwards transcribed upon the
14 typewriter, and said testimony is herewith returned.
15 IN WITNESS WHEREOF I have hereunto set
16 my hand and affixed my Notarial Seal this 3rd day of
17 July, 2006.
18 __________________________
19 HOLLY A. SCHMID
20 Notary Public -- CSR
21 084-98-254587
22
23
24
Page313