ILLINOIS POLLUTION CONTROL BOARD

2 IN THE MATTER OF:

)

3 WATER QUALITY STANDARDS AND ) R08-09

EFFLUENT LIMITATIONS FOR THE ) (Rulemakeing-

4 CHICAGO AREA WATERWAY SYSTEM ) Water)

AND THE LOWER DES PLAINES )

5 RIVER: PROPOSED AMENDMENTS )

TO 35 Ill. Adm. Code Parts )

6 301, 302, 303 and 304

)

REPORT OF PROCEEDINGS held in the

8 above-entitled cause before Hearing Officer Marie

9 Tipsord, called by the Illinois Pollution Control

10 Board, taken before Laura Mukahirn, CSR, a notary

11 public within and for the County of Cook and state

12 of Illinois, at the James R. Thompson Center, 100

13 West Randolph, Chicago, Illinois, on the 30th day of

14 January, 2008, commencing at the hour of 9:00 a.m.

A P P E A R A N C E S

MS. MARIE TIPSORD, Hearing Officer

MR. ANAND RAO, Senior Environmental Scientist

MR. TANNER GIRARD, Acting Chairmn

MR. NICHOLS MELAS

Appearing on behalf of the Illinois

Pollution Control Board

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

BY: MS. DEBORAH WILLIAMS

MS. STEPHANIE DIERS

MR. ROBERT SULSKI

MR. SCOTT TWAIT

MR. ROY SMOGOR

HEARING OFFICER TIPSORD: Good

morning, everyone. Welcome to Chicago on

this blustery winter day. My name is Marie

Tipsord. I've been appointed by the Board to

be the hearing officer in the matter of Water

Quality Standards and Effluent Limitations

For the Chicago Area Waterway System and

Lower Des Plaines River Proposed Amendments

to 35 Ill. Adm. Code 301, 302, 303 and 304,

Docket No. R08-9. To my immediate right is

Dr. Tanner Girard, the acting chairman and

presiding board member on this rule making.

To his right is Nicholas J. Melas, also board

member. To my immediate left is Anand Rao of

our technical staff. This morning, as you

all know, we're going to skip around a little

bit due to the limited availability of

Mr. Chris Yoder. So instead of continuing

with our general topic area, we are going to

go directly to questions for Mr. Yoder. The

order of those questions is Midwest

Generation. Does Flint Hills have any

specific for Mr. Yoder.

AUDIENCE MEMBER: I'll have to check.

HEARING OFFICER TIPSORD: If so then

Flint Hill, then Citgo Petroleum Corporation

and PDE Midwest, Corn Products International,

Chemical Industry Council of Illinois,

Metropolitan Water Reclamation District of

Greater Chicago, Stepan Company,

Environmental Law and Policy Center, Prairie

Rivers Network and Sierra Club, and Exxon

Mobil Oil Corporation.

With that, I think we will get

started. I remind those of you who have been

sworn, you are still sworn. And,

Miss Williams or Miss Diers, would you like

to introduce your witness and we'll have him

sworn in.

MS. WILLIAMS: We have Mr. Chris Yoder

with us today sitting at the end of the table

from MBI, and he'll be testifying for us for

the next three days.

(Witness sworn.)

C H R I S Y O D E R,

22 called as a witness herein, having been first duly

23 sworn, was examined and testified as follows:

HEARING OFFICER TIPSORD: And we'll

have to enter Mr. Yoder's testimony.

MS. WILLIAMS: I think, Madam Hearing

Officer, would it make sense to have a

separate exhibit for the testimony and

there's three attachments to the testimony.

Do you want them to be separate exhibits?

HEARING OFFICER TIPSORD: It's

probably easier. Two things: The acoustics

are horrible. So those are you who are all

the way in the back of the room, you're

probably not going to hear no matter how much

you yell. So please come forward. I will

keep reminding everyone. Please let me know

if you can't hear, but the minute anything

goes by on the road out on LaSalle Street,

you will not be able to hear anything.

If there's no objection, I

will mark the prefiled testimony of Chris O.

Yoder as Exhibit No. 13. Seeing none, it's

Exhibit 13.

I've been handed the CV for

Mr. Chris Yoder, and we'll mark that as

Exhibit No. 14, if there's no objection. And

this was Attachment 1 to his testimony,

correct?

MS. WILLIAMS: Correct.

HEARING OFFICER TIPSORD: And what was

attachment two, Temperature Criteria Options

For the Lower Des Plaines River Final Report,

dated November 23, 2005, we'll mark as

Exhibit 15 if there's no objection. Seeing

none, it's Exhibit 15.

Attachment 3 to his testimony,

Reevaluation of the Technical Justification

For Existing Ohio River Mainstream

Temperature Criteria dated January 27, 2006,

will be Exhibit 16, if there's no objection.

Seeing none, it's Exhibit 16.

With that, then let's begin with

the prefiled questions of Midwest Generation

for Mr. Yoder. And just for record purposes

and so the court reporter knows where to look

when she's using these to work from, can you

tell us what page you're starting on.

MS. FRANZETTI: There's a whole

separate set of questions by Midwest

Generation for Chris Yoder, and I'm starting

with the questions that begin on Page 2 with

question Roman one capital A one.

Madam hearing officer, I think

maybe it would be at least polite to allow

Mr. Yoder to introduce yourself and tell --

give us what your current position is with

your current place of employment?

MR. YODER: My name is Chris Yoder.

I'm the research director.

HEARING OFFICER TIPSORD: You're going

to have to speak up, Mr. Yoder.

MS. FRANZETTI: I'm sorry. Did I

miss the answer while I was closing the door?

HEARING OFFICER TIPSORD: Go ahead.

MR. YODER: My name is Chris Yoder.

I'm the research director for the Center for

Applied Bioassessment and Biocriteria at the

Midwest Biodiversity Institute. It's located

in Columbus, Ohio.

Examination

By Mr. Franzetti

Q. Mr. Yoder, would it be okay if I refer

23 to your current employer as MBI?

A. Yes.

Q. What is the primary source or sources

2 of MBI's funding?

A. Well, there's multiple sources of

4 funding, primarily to various clients that we are

5 asked to do work for that includes U.S. EPA, state

6 agencies, municipalities, and nonprofit corporations

7 and other private organizations. There's about, I'd

8 say, about 30 clients at present.

Q. Any one or two of those that represent

10 a significant portion of the work that MBI performs?

A. U.S. EPA probably provides the

12 plurality of funding.

Q. Do you do any projects for industrial

14 clients?

A. Not at present, no.

Q. Other than your employment with the

17 Indiana Department of Health, the Ohio EPA, and MBI,

18 have you been employed anywhere else?

A. Between February 2001 and December of

20 2006 I was an employee of Ohio University at the

21 Center For Leadership and Public Affairs, and that's

22 it.

Q. Can you just briefly state what the

24 nature of your work was for in that role as an

1 employee of Ohio University?

A. Well, it was basically doing the work

3 of MBI, but I was technically an employee of the

4 Ohio University at the time.

Q. So same kind of work, just a different

6 employer?

A. Yes.

Q. Okay. Moving on to Question 3. When

9 you have provided expert witness testimony in

10 proceedings, and this is as described in Page 2 of

11 your prefiled testimony, on whose behalf have you

12 provided such testimony?

A. When I was employed with what was then

14 the Indiana Department of Health, I testified on

15 behalf of EPA Region 5 in a hearing, and then on

16 other occasions for Ohio EPA.

Q. And if I can be indulged, and I think

18 this is a question that a number of other people had

19 but I didn't, this seems to be the appropriate time

20 to ask it, so I'm going to sneak it in. Mr. Yoder,

21 do you consider yourself an expert in any field?

A. Yes.

Q. What field or fields do you consider

24 yourself an expert in?

A. Aquatic ecology, fisheries biology,

2 ichthyology, the effect of environmental stressors

3 on aquatic communities.

Q. And I'm sorry. I couldn't keep up

5 with all of that. Maybe I should just ask the court

6 reporter if she can try and read that back.

7 Mr. Yoder will help you since I know some of the

8 words were a little tough.

(Record read as

requested.)

MS. FRANZETTI: That was excellent.

12 BY MS. FRANZETTI:

Q. Mr. Yoder, could you briefly explain

14 to us what is -- what is encompassed in the field of

15 aquatic ecology? What are you referring to when you

16 say I believe I'm an expert in aquatic ecology?

A. Well, it's basically dealing with

18 aquatic echoe systems and the organisms that reside

19 in the systems and the effect of the environment on

20 those organisms.

Q. And next would you do the same for the

22 field of fisheries biology?

A. Yeah. I kind of look at that as sort

24 of a subset of aquatic ecology.

Q. Okay. So we covered that under --

A. My expertise with fish primarily.

Q. Specific to fish the things that you

4 described for aquatic ecology would be what you were

5 referring to for fisheries biology?

A. Yes.

Q. Okay. Ichthyology?

A. Well, ichthyology, again, is a subset

9 of fisheries, and that's the basically the taxonomy

10 and life history of individual species, populations.

Q. And, finally, the fourth area you

12 mentioned was the effect of biological stressors on

13 aquatic communities. Please describe what that

14 entails.

A. Well, simply it's the understanding,

16 the response of the aquatic organisms and their

17 assemblages to various both natural and progenic

18 processes that affect them and determine their

19 wellbeing status.

Q. Moving on to Question 4, and maybe I

21 need to actually back up to be clear in terms of

22 what I'm talking about. With respect -- You

23 prepared what has already been marked in this

24 proceeding as Exhibit 15, temperature criteria

1 options for the lower Des Plaines river, final

2 report, correct, Mr. Yoder?

A. Yes.

Q. My next question applies to the same

5 type of work you did that's reflected in Exhibit 15.

6 For what other states have you prepared similar

7 reports and recommendations with respect to thermal

8 water quality standards?

A. In addition to this work, I developed

10 a temperature criteria that are in the Ohio water

11 quality standards. And also the work we did for

12 ORSANCO. Do I need to spell that?

HEARING OFFICER TIPSORD: Yes, please.

THE WITNESS: It's the Ohio River

Valley Water Sanitation Commission which is

the compact of multiple states in the Ohio

river basin.

18 MS. FRANZETTI:

Q. And, for the court reporter, would you

20 just spell out the acronym that makes up the word

21 ORSANCO?

A. O-R-S-A-N-C-O.

Q. Thank you. So you developed the

24 temperature water quality standards for Ohio,

1 correct?

A. Yes.

Q. And were those adopted basically as

4 you developed them?

A. Yes.

Q. No changes were made?

A. No.

Q. Okay. And approximately when was

9 that? I know you make some reference to it in your

10 report, but just to give us a time frame.

A. 1978.

Q. Are the 1978 Ohio Thermal Water

13 Quality Standards still in effect today?

A. Yes.

Q. No changes have been made?

A. No.

Q. Moving on to Question 5, Mr. Yoder.

18 Have you conducted any fish studies on the Chicago

19 Sanitary and Ship Canal or on water bodies that are

20 similar to the Chicago Sanitary and Ship Canal?

MS. WILLIAMS: I think this is

compound. Can we break it down into first

the sanitary and ship canal.

1 BY MS. FRANZETTI:

Q. Sure. Mr. Yoder, let me ask it again.

3 Have you conducted any fish studies on the Chicago

4 Sanitary and Ship Canal?

A. Yes. I've -- Our organization has

6 conducted --

Q. By your organization, we're referring

8 to MBI?

A. MBI.

Q. Have you personally been out in the

11 fields conducting any studies?

A. No, I haven't personally done that.

Q. I believe one of your colleagues is

14 Mr. Rankin?

A. Yes.

Q. Do you know whether Mr. Rankin has

17 conducted any fish studies for MBI on the Chicago

18 sanitary and ship canal?

A. No.

Q. You don't know or he hasn't?

A. No. He hasn't conducted fish studies,

22 no.

Q. Have you conducted any fish studies on

24 water bodies that you believe are similar to the

1 Chicago Sanitary and Ship Canal?

A. Yes.

Q. How many studies?

A. Well, one stands out in my mind.

Q. And what water body was that?

A. The Kayahoga River.

Q. And could you briefly, for those who

8 are not familiar with the Kayahoga River, could you

9 briefly describe what the similarities are of the

10 Kayahoga to the Chicago Sanitary and Ship Canal?

A. It would be the, what's known as the

12 Kayahoga River Navigation Channel which is a

13 modified water body with basically constrained to an

14 navigation channel or great lakes shipping. It

15 encompasses about the lower five and a half miles of

16 the main stem of the Kayahoga River.

Q. Were you doing that work -- Let me

18 just ask it generally. What was the purpose of your

19 fish study on the Kayahoga River?

A. Well, it was part of Ohio EPA's

21 state-wide biological and water quality monitoring

22 program.

Q. Was a written study report prepared on

24 that Kayahoga River navigational channel work?

A. Yes.

Q. And is that a published study?

A. Yeah. I believe they're all listed on

4 Ohio EPA's website.

Q. Do you recall offhand what year it

6 would have been?

A. There's been several reports.

Q. The one you did, you worked on?

A. Probably 1984, I believe, something in

10 that era.

Q. So your work was done on the Kayahoga

12 River Navigational Channel in the early 1980s?

A. Yes. It actually -- through the

14 1980s.

Q. Through the 1980s?

A. Into the early 1990s.

HEARING OFFICER TIPSORD: Yes? You

need to --

MR. DIMOND: This is Tom Dimond on

behalf of the Stepan Company. Mr. Yoder, did

you say that the report was available on the

Ohio EPA website?

THE WITNESS: Yes, it should be.

1 BY MS. FRANZETTI:

Q. I think I've adequately covered five.

3 Moving on to No. 6.

MR. FORT: Jeff Fort on behalf of

Citgo. Mr. Yoder, you said something about

that you had done a fish study on the Chicago

Sanitary and Ship Canal, or did I mishear

that?

THE WITNESS: Well, I directed people

who did the work. I wasn't personally

present.

MR. FORT: And you're talking about

the ship canal is what the body of work

that's in, I think it's Attachment S, and the

other reports that we've had in here?

MR. YODER: I'm not sure --

MS. WILLIAMS: Excuse me? Could you

repeat that.

MR. SULSKI: He wants to know if it's

in Attachment S.

MR. FORT: I'm trying to identify

where the body of work is that he's referring

to that refers to the ship canal. Because

I'm not sure what we're calling the ship

canal is the same as what he's calling the

ship canal.

MS. WILLIAMS: Do you want to say when

that was done?

MR. YODER: It was in 2005, and it was

based on a regional comparability study that

we were conducting in region 5, EPA Region 5.

And Metropolitan Water Reclamation District

was one of the cooperators in that study?

HEARING OFFICER TIPSORD: You're

really going to have to try -- I mean the

court reporter is having difficulty hearing

you.

MR. YODER: I'm sorry.

MF. FORT: I guess maybe the question

to the agency is you're familiar with his

work. Is this work part of what you've

included as Attachment S or the exhibits that

we had yesterday?

MR. SMOGOR: It's not part of the

record at this point, that study that he's

referring to.

MR. FORT: Oh, it's not?

MR. SMOGOR: No, no.

MR. FORT: Is it reduced to

documentation someplace?

MR. SMOGOR: Yes. We can --

MS. WILLIAMS: Can I just ask -- I'd

like to ask the Agency if they've ever seen

the study, the results? Have you ever seen

the results of the study? Have you reviewed

them?

MR. SMOGOR: I have not.

MS. WILLIAMS: Do you know if anyone

at the agency has?

MR. SMOGOR: I don't know if anyone

has, but I wouldn't guess that they have.

MR. FORT: Mr. Yoder, you did this for

U.S. EPA?

MR. YODER: Yes.

MR. FORT: And you don't know if it

has been given to Illinois EPA or not?

MR. YODER: I'm pretty certain all of

the states in Region 5 received that report.

MR. FORT: But it's not part of this

regard is what I hear, right?

MS. WILLIAMS: Correct.

HEARING OFFICER TIPSORD: Let's just

go that next step, and it needs to be a part

of this record, I think.

MS. WILLIAMS: Right. I mean do we

know the title of the report?

MR. SMOGOR: The word comparability is

in it, right?

MR. YODER: I'd have to --

MS. WILLIAMS: We'll look into it and

make sure.

10 BY MS. FRANZETTI:

Q. Mr. Yoder, do you know if it's

12 available on any internet site?

A. I'm not sure.

Q. Okay. Do you -- Can you explain to us

15 what the purpose was of that work?

A. The purpose of the study, actually it

17 was a grant from Region 5 to ORSANCO, and we were a

18 cooperator with ORSANCO. We actually were

19 contracted by them to do the work. And it was a

20 study comparing the results of both electrofishing

21 at various river insites around the region. And I

22 believe there were nine different cooperators

23 consisting of states, municipalities, and one

24 private organization.

Q. Was the main purpose of the study

2 trying to determine the reliability or accuracy of

3 electrofishing methods for doing fish studies?

A. It was more just how do different

5 organizations that may have slightly different

6 methods and equipment, how do the results compare.

Q. Okay. Among the slightly differing

8 ways in which the organizations or entities use

9 electrofishing to collect fish samples?

A. Yes.

Q. Okay. So it's not going to tell us

12 much more than the good and the bad of

13 electrofishing methods, or does it -- or does it

14 contain -- comment on the type of fish found and any

15 other attributes with regard to the fish found?

A. Well, the same basic data that we have

17 provided for other water bodies in this particular

18 hearing. It's the same basic type of data.

Q. Okay. I'm going to ask you to

20 elaborate on that. We're all trying to get a sense

21 of what the relevance is of this report we're

22 talking about. And in that regard when you said

23 same basic data, what are you referring to?

A. Well, the data collected -- the study

1 was structured where MBI sampled at sites that were

2 already being sampled by these other cooperators.

3 So we applied MBI's protocols to those sampling

4 locations.

Q. Okay.

A. And so we generated the basic, you

7 know, fish counts, species enumerations, et cetera,

8 that -- that's what I referred to as baseline data.

Q. You mentioned one of the cooperators

10 was the district, correct?

A. Yes.

Q. Any other cooperators in the Chicago

13 Sanitary and Ship Canal portion of this study?

A. No.

Q. Was anyone else asked to cooperate?

A. No.

Q. And I don't know -- Before I started

18 asking the questions, I'm not sure we established,

19 are we going to try to get a copy of the report?

HEARING OFFICER TIPSORD: Yes.

MS. FRANZETTI: So I don't need to,

okay, go into that.

HEARING OFFICER TIPSORD: Mr. Harley

has a follow-up.

MR. HARLEY: Before we move on to make

sure we're -- Keith Harley on behalf of the

Southeast Environmental Task Force. Beyond

what's referenced in your prefiled testimony

and in your attached CV, have you done any

specific studies relating to the Calumet

River, the Little Calumet River, Lake

Calumet, or the Cal-Sag Channel?

MR. YODER: I believe we had at least

two sites on the Cal-Sag Channel in the

study, but not on the other water bodies that

you mentioned.

MR. HARLEY: And approximately when

were those Cal-Sag Channel studies completed?

MR. YODER: Well, that was all 2005.

MR. HARLEY: And is that part of the

record in this case?

MR. YODER: Not presently until the

report is entered.

HEARING OFFICER TIPSORD: I believe

his answer was that that's all part of the

report he's getting ready to prepare, is that

correct, or getting ready to provide us?

MR. YODER: Yes.

MR. HARLEY: Thank you.

2 BY MS. FRANZETTI:

Q. Moving on to Question 6. Mr. Yoder,

4 have you conducted any fish studies on the lower Des

5 Plaines River or on water -- I'll stop there, just

6 on the lower Des Plaines River.

A. Well, again, it's similar to my

8 previous answer. MBI had a field group that did

9 some sampling on the lower Des Plaines in 2006.

Q. 2006. Now, is that also part of that

11 same comparative fish electrofishing study that you

12 previously described for us?

A. No, it's not.

Q. This is a separate project, correct?

A. Yes.

Q. And with respect to this project

17 which, can I refer to it as the Lower Des Plaines

18 River 2006 Project?

A. Yes.

Q. Okay. You, I believe, have just told

21 me you were not personally out there in the field

22 doing the fish study work, correct?

A. Correct.

Q. Were you out in the field directly

1 overseeing people who were doing the fish study

2 work?

A. Yes.

Q. You were. What -- Explain what your

5 role was.

A. Well, my role in these projects is to

7 oversee their completion and execution in accordance

8 with the grant or contract that supported them.

Q. All right. With respect to the field

10 work, I should use that term to be clear, what did

11 you do out in the field to supervise the people

12 performing the Lower Des Plaines River 2006 Project?

A. I guess my role as the research

14 director is to ensure that the field crew leaders

15 who actually conduct the work are properly trained

16 and qualified. So there's part of that training is

17 done in the field, not necessarily on the lower Des

18 Plaines, but -- and I do, I guess we have sort of an

19 internal audit procedure that we use during the

20 field season, and I will make visits to the field

21 crews while they're doing their work.

Q. So for the lower Des Plaines River

23 2006 project, did you make any visits to the field

24 crew?

A. No, I did not on the lower Des

2 Plaines.

Q. Okay. So on that project, none of

4 your work was performed out in the field, correct?

A. Correct.

Q. Okay. But there are field crew

7 leaders that are out in the field?

A. Yes.

Q. Okay.

A. That I --

Q. And they oversee the people who are

12 actually collecting the fish data?

A. Yeah. Field crew is a full-time

14 employee of MBI, the crew leader who's then assisted

15 by two or three field technicians.

Q. Okay. So we have the field crew

17 leader, and he oversees two or three technicians.

18 The field crew leader is a full-time employee of

19 MBI. What about the two or three technicians. Are

20 they full-time employees of MBI?

A. They're what we call seasonal

22 employees.

Q. Does MBI train those people?

A. Yes.

Q. What kind of training do they receive?

A. Everyone receives training just prior

3 to the field season in field safety, first aid.

4 They're also instructed in the execution of the

5 sampling protocols.

Q. I'm going to hold up there and come

7 back to my question. So you have -- We've

8 established you've performed one fish study or part

9 of the performance of the fish study on the lower

10 Des Plaines River in 2006. Any other fish studies

11 you have been involved in for the lower Des Plaines

12 River?

A. No.

Q. Now, with respect to rivers that you

15 would consider similar to the lower Des Plaines

16 River -- Let me strike that for a moment, because

17 that incorporates different types of habitat and

18 fish.

If I use the term Upper Dresden

20 Pool, do you know what I'm referring to?

A. Yes.

Q. Okay.

MS. WILLIAMS: Can you describe,

because I'm not --

MS. FRANZETTI: That's my next

question, Counsel.

3 BY MS. FRANZETTI:

Q. What area do you incorporate within

5 the term Upper Dresden Pool?

A. Well, my understanding is it would be

7 from the -- It would be the effect of the impalement

8 by the Dresden Dam on the Des Plaines River, and

9 could include all the way up to the Brandon Dam

10 tailwater. That's my understanding.

Q. All right. For purposes of this

12 proceeding, could I ask you to use the, as the

13 southern boundary of the Upper Dresden Pool, the I55

14 bridge? Are you familiar with where that is?

A. Yes.

Q. Okay. So with respect to the Upper

17 Dresden Pool defined with I55 bridge as its southern

18 boundary, have you performed fish studies on any

19 other waters that you consider to be similar?

A. Yeah. I would consider, I think you

21 could start with any river of a similar size in

22 terms of drainage area that is modified, flow

23 modified by dams. I've been on a lot of those

24 throughout the Midwest and New England, tens if not

1 hundreds in my career. We're conducting a regional

2 large river study in Region 5. So we've been on a

3 number of different rivers that are impounded both

4 for navigation and nonnavigation purposes.

Q. Mr. Yoder, are you familiar with the

6 fact that the Upper Dresden Pool, as we're -- as

7 we've defined it is a channelized water body?

A. If I understand the term

9 channelization.

Q. Tell me what your understanding is of

11 that term.

A. When I refer to channelization, it's a

13 water body that's been physically dredged out, the

14 channel has been altered by physical dredging.

Q. Right. Maintenance dredging,

16 primarily usually navigational purposes?

A. And usually bank to bank that you see

18 in agricultural landscapes to permit drainage.

Q. Are you aware that there's any

20 channelization in the Upper Dresden Pool?

A. Well, yeah, for the, you know, for the

22 navigation channel purposes.

Q. And with respect to both an impounded

24 and a channelized area like the Upper Dresden Pool,

1 is your answer also the same, that you've worked on

2 tens upon hundreds of those?

A. Yes, some of those were the subject of

4 the same types of maintenance.

Q. Some of those?

A. Yes, some, not all.

Q. Roughly 10 percent?

A. Probably a smaller fraction, because

9 most do not support that type of navigation.

Q. Okay. So one percent?

A. It's hard to say.

Q. Okay. Something less than five?

A. That's probably close.

Q. Okay. Moving on to Question No. 7.

HEARING OFFICER TIPSORD: Before you

get there, I would just like to double-check.

We were talking about the Lower Des Plaines

River 2006 Study. Miss Franzetti was asking

you about that. Is that Attachment S to

the --

MR. SMOGOR: Yes.

HEARING OFFICER TIPSORD: Attachment S

to the petition is the word I'm trying to

come out with. I wanted to clarify that that

one is in the record.

MS. FRANZETTI: Yeah, we got one.

Thank you, Madam Hearing Officer.

4 BY MS. FRANZETTI:

Q. Question No. 7, have -- How many

6 peer-reviewed scientific journal papers have you

7 published on the subject of the development of

8 thermal water quality standards?

A. Well, in terms of peer-reviewed paper?

Q. First I want you to answer as to

11 peer-reviewed papers.

A. I believe there are at least two in my

13 resume, but I --

HEARING OFFICER TIPSORD: I didn't

hear the last part of that.

THE WITNESS: Two publications in my

resume that deal with thermal issues directly

or peer review.

19 BY MS. FRANZETTI:

Q. And this is with respect to the

21 development of thermal water quality standards,

22 correct?

A. Yes. One deals directly with that.

24 The other one is thermal effects study that I did

1 for my graduate research.

Q. Okay. Can you find it on your resume.

3 Because we all have your resume as Exhibit 14, so if

4 you could just tell us where those two are listed.

A. Yes. Under publications and technical

6 reports. This doesn't have page numbers.

Q. I just realized that, too. Well,

8 let's do it this way. We've got the first page that

9 does have the caption publications and technical

10 reports. It's not on that one or is it on that one?

A. Yes. These are listed chronologically

12 from most recent to --

Q. Where is the first one?

A. On the first page the next to the

15 bottom reference.

Q. Yoder and Emery, 2004?

A. Yes. I believe that was --

Q. Updating a temperature criteria

19 methodology for the Ohio River main stem?

A. Yes.

Q. Correct? Okay. So that's the one

22 that directly relates to the development of thermal

23 water quality standards, correct?

A. Yes.

Q. And that was peer reviewed?

A. I believe it was, yes.

Q. Are you -- You're not sure?

A. I'm fairly certain it was, but I am

5 not 100 percent.

Q. Okay. And now the other one that you

7 were saying is relevant, I guess, you think, to the

8 development of thermal water quality standards.

9 Which one is that?

A. That would be the Yoder and Gammon,

11 1976 paper. It is -- it will be five pages back.

12 It has a 1976 publication date.

Q. Okay. I think I found it. Is the

14 title Seasonal Distributions and Abundance of Ohio

15 River fishes at the JM Stuart Electric Generating

16 Station?

A. Yes.

Q. Okay. Now, I think you mentioned you

19 did that when you were a graduate student?

A. Yes.

Q. So the peer review of that was by who?

A. Well, I don't -- it was anonymous.

Q. I'm sorry. That was an anonymous?

A. Peer reviewers are anonymous.

Q. In graduate school?

A. I don't know who they were. No, this

3 was a publication as part of a symposium

4 proceedings.

Q. I'm sorry. I thought you were doing

6 it for graduate course work in a course.

A. It was based on my master's thesis

8 research.

Q. I see. Okay. And that one really,

10 though, is not talking about the actual development

11 of thermal water quality standards, is it?

MS. WILLIAMS: I don't -- Object is a

little harsh, I guess, but we didn't ask the

question what has the Agency proffered him as

an expert for. You did ask the question what

he's offered himself -- what he is an expert

in. I wouldn't describe what we're offering

him as an expert in to be that. I would

describe it as the impact of temperature on

aquatic life. So to that extent, I think,

actually, the second study is maybe more

relevant or at least as relevant as the

first.

MS. FRANZETTI: Okay, Miss Williams.

So you're offering Mr. Yoder solely for the

purpose of what the impact of temperature is

on aquatic life, correct?

MS. WILLIAMS: Can we go off the

record for a second?

HEARING OFFICER TIPSORD: Sure.

(Off the record.)

HEARING OFFICER TIPSORD: Go back on

the record. Miss Williams, please explain

what you feel his expertise is, what you're

offering him as an expert in.

MS. WILLIAMS: The Agency is

proffering Mr. Yoder as an expert on the

impacts of thermal stressors on aquatic life,

and we've brought him here primarily to

explain his methodology for looking at those

stressors. But we have not specifically

proffered him as an expert on establishing

numeric criteria for temperature standards,

especially not as that relates to Illinois.

MS. FRANZETTI: For the record, this

is another problem, quite frankly, caused by

the order in which Mr. Yoder has been put

forward in this hearing. Because I am

confused by that description based on what I

have read in Mr. Yoder's report that was

attached to the statement of reasons. I'm

also hindered in my understanding because

I've not been able to question the Agency

witnesses. And I think it is particularly

whoever at the agency took Mr. Yoder's report

and what did they use it for. Quite frankly,

Miss Williams, not to be difficult, I thought

his report was the starting point for

deriving the thermal water quality standards

that have been proposed in this proceeding.

And, admittedly, changes were made to what

was in his report, but his methodology, I

thought, formed the basis of the proposed

thermal water quality standards. And I

think -- I don't know. That's why I'm

confused. I think you're telling me I'm

wrong in my understanding.

MS. WILLIAMS: All I'd like to say on

this point for the record is I believe that

when we had phone conferences prior to these

hearings, I explained to you on two occasions

my view that Mr. Yoder's testimony was on a

very limited subject matter, and that the

agency witnesses; namely, Mr. Twait, would be

testifying about the actual numeric criteria

for temperature.

HEARING OFFICER TIPSORD: But you

didn't answer Miss Franzetti's question, and

I'm curious as to the answer to

Miss Franzetti's question. Because I think

it's a good point. We have a report, we have

Attachment S, which I believe the testimony

was yesterday that there were changes made to

the proposal with --

MS. WILLIAMS: That's not what she's

talking about. This is not related to

thermal. Attachment S is not related to

thermal.

HEARING OFFICER TIPSORD: All right.

I'm sorry.

MS. WILLIAMS: Which is why I wanted

to go off the record and discuss that he

probably would have to talk about

Attachment S unrelated to thermal. I think

Mr. Twait's testimony is quite clear on this

point that I'm raising, that he interpreted

Mr. Yoder's methodology in recommending

what -- So to the extent that understanding

his methodology is necessary, absolutely,

that's what we're here to discuss. But I

don't think we've been secretive at all about

the relationship.

HEARING OFFICER TIPSORD: Oh, I don't

mean to imply that you've been secretive.

I'm just -- I think we're all a little

confused because Mr. Twait's testimony is

quite clearly that he interpreted the

methodology and Mr. Yoder's work to develop

the standards. And I think we need to get to

the methodology. And so for that I think

we're going to continue. And,

Miss Franzetti -- If you want to object on a

question-by-question basis, we'll deal with

them then. But I'm still, given, again, the

limited availability of Mr. Yoder and the

fact that we've been told he's not coming

back, I'm really looking to give them a lot

of leeway.

MS. WILLIAMS: Absolutely. I don't

have any objection to any line of

questioning. My objection was merely to the

characterization of the nature of his

expertise.

MS. FRANZETTI: And I think maybe a

light bulb just went off in my head. What

you're trying to say to me is,

Miss Franzetti, I am not bringing him forward

as an expert on how you derive thermal water

quality standards. So quit asking questions

about his lack of experience in doing that.

Is that what you're trying to tell me?

MS. WILLIAMS: That's all I'm trying

to tell you.

MS. FRANZETTI: I understand that.

And what you're also trying to tell me is,

yes, he has a methodology, and that

methodology is for looking at thermal

stresses on aquatic life, correct?

MS. WILLIAMS: He's better to answer

that.

21 BY MS. FRANZETTI:

Q. Fine. Mr. Yoder, tell us how you

23 describe or explain what this methodology of yours

24 is that we're all here to hear about. And I hope

1 you can do it.

A. Well, I'm referring to the report.

Q. If that would be easier for you to do,

4 tell us what -- you're referring to your report or

5 your testimony?

A. The report.

Q. Okay. So we want to be looking at

8 Exhibit 15. Can you give us page reference.

A. Page 1.

Q. Page 1, okay.

A. And it describes the purpose of the

12 project.

Q. All right. But my question really was

14 asking you how would you describe the methodology

15 that you used for the work you did here for the

16 Illinois EPA?

MS. WILLIAMS: Are we referring to

what's been called the fish temperature model

in his testimony?

MS. FRANZETTI: If that's the

methodology we're talking about Mr. Twait

relying on.

MS. DIERS: Exhibit 15. Exhibit 15,

is that what -- that's the report. Okay.

MS. FRANZETTI: We're on Exhibit 15.

Let me try and help. I'm not trying to

prolong this. I'm really trying to just

clarify Mr. Yoder's role here.

5 BY MS. FRANZETTI:

Q. Mr. Yoder, you have something you call

7 a fish temperature model, correct?

A. Yes.

Q. All right. And you used that fish

10 temperature model as the basis for your report that

11 is Exhibit 15, correct?

A. Yes.

Q. Do you refer to your fish temperature

14 model as a methodology?

A. Yes.

Q. Okay. And I think that, for current

17 purposes probably clarifies enough what your role is

18 here. So let me keep going. And I will skip 7

19 and 8 of my questions because it's -- I think

20 Counsel has agreed it's been established he's not

21 being proffered as an expert or was not used for the

22 development of thermal water quality standards.

Moving on to B, participation in

24 the lower Des Plaines UAA. With reference to Page 3

1 of the prefiled -- of your prefiled testimony,

2 Mr. Yoder, could you explain how you came to be

3 retained by the United States Environmental

4 Protection Agency Region 5 to provide technical

5 assistance related to the lower Des Plaines UAA and

6 what kind of technical assistance you were asked to

7 provide?

MS. DIERS: Can we break it down into

two questions? Sorry. It's just easier on

the record.

11 BY MS. FRANZETTI:

Q. Sure. How did you come to be retained

13 by Region 5, Mr. Yoder, for the lower Des Plaines

14 UAA?

A. Well, we received a grant from EPA for

16 their term cooperative agreements which we had to --

17 there's a request for proposals, so we -- there was

18 open competition for these grants, and the

19 particular grant that this work was done under

20 was -- I don't recall the exact title of the grant,

21 but it had to do with the kind of the broad

22 development of matters relating to aquatic life use,

23 designations, and sort of the technical

24 underpinnings of the deriving those, measuring

1 attainment with, and so on. So as part of that

2 grant, I was asked by Region 5 to attend, I believe

3 it's the -- It was the biological subcommittee, I

4 believe, was the right term. When that process was

5 going on, I believe in 2002, 2003.

Q. 2002, 2003?

A. Something in there.

Q. And, Mr. Yoder --

A. Prior to the report that was written

10 by --

Q. Mr. Yoder, I hope that you won't find

12 it annoying, but I know you're having trouble

13 keeping your voice up. And I don't have that same

14 problem. So what I'm going to try to do, which I

15 think has been now established, what I'm going to

16 try and do a little bit when I hear you dropping

17 your voice, just for everybody's benefit, I'll try

18 and kind of reiterate what you said trying to use

19 your exact words in my louder voice so everybody can

20 hear and follow along. Because the other thing

21 we're doing is letting people ask follow-up

22 questions, Mr. Yoder. So if you find it distracting

23 or annoying, tell me and then I will stop. But

24 that's why I'm trying to repeat some of the things

1 you say, okay?

A. I'll try to speak up.

Q. Okay. With respect to this

4 cooperative agreement, you mentioned an open

5 proposal, but you also spoke about a broad

6 development of aquatic issues. I kind of lost track

7 of was this a subset, the -- was your work for the

8 lower Des Plaines UAA project a subpart of a broader

9 cooperative agreement granted to MBI?

A. Yes.

Q. Okay. And when you say that there

12 was -- It was an open proposal, it was an open

13 proposal for the overall project?

A. Yes, for the grant. It's open

15 competition.

Q. Okay. All right. Not a separate

17 bidding or proposal for just this work for the lower

18 Des Plaines UAA, correct?

A. That's correct.

Q. So let's move to the second part --

21 Excuse me. Let me step back.

You were mentioning the biological

23 subcommittee of the lower Des Plaines UAA, and just

24 for the Board's benefit, and I'm not trying to

1 testify, but I don't know if Mr. Yoder knows, do you

2 know that that was a subgroup or subcommittee of

3 what's called the Lower Des Plaines UAA

4 Stakeholders' Group?

A. Yes.

Q. Okay. Do you recall what year,

7 whether it was 2002 or 2003, when you were first

8 retained to provide that -- provide assistance to

9 the lower Des Plaines UAA biological subgroup?

A. I believe it was 2002, I believe.

Q. Okay. Do you recall for what period

12 of time you proceeded to provide that assistance?

A. I mean the cooperative agreement

14 extended for five years, for a five-year period. So

15 as far as my availability for technical assistance

16 on these matters, it spanned that entire period.

Q. Let me go on to my next question, and

18 I think I can get to where I want to be better that

19 way. Next question, B2, how many meetings of the

20 lower Des Plaines UAA, let's start with the

21 biological subgroup, did you attend?

A. I don't recall an exact number, but it

23 was somewhere in the range of maybe four, four

24 meetings.

Q. Do you -- Was that in 2002?

A. I believe so.

Q. Did you attend any meetings of the UAA

4 stakeholders' group for the lower Des Plaines?

A. No.

Q. All right. So although I recognize

7 you said the cooperative agreement spanned a

8 five-year period, with respect to your direct

9 dealings with the biological -- and I'm sorry. I

10 think it's subcommittee. I've been saying subgroup.

11 Subcommittee of the lower Des Plaines UAA, you --

12 that encompassed attending about four meetings of

13 the group, correct?

A. Yes.

Q. What was -- What did you do, what

16 assistance did you provide or what did you talk

17 about at those four meetings?

A. Well, I recall at those meetings that

19 there were discussions and presentations of

20 primarily the biological inhabitant data and that I

21 listened to those and participate in discussions

22 about those analyses.

Q. What did you -- Did you draw any

24 conclusions about the biological inhabitant data

1 that was being discussed in 2002?

A. No, not formally, no.

Q. Now, I think I skipped over -- Let me

4 go back. With respect to the lower Des Plaines UAA

5 project and -- which included your attendance at

6 meetings of the biological subcommittee, what were

7 you -- when you were asked to go to those meetings,

8 what were you told was your purpose of -- sent to

9 those meetings. What were you supposed to do?

A. Just provide my technical expertise.

Q. And who told you -- Who asked you to

12 do that?

A. Region 5.

Q. Did they explain why they wanted you

15 to do that?

A. I mean they informed me what the

17 meetings were about and it was pretty clear what my,

18 from knowing what the subjects of the meetings were,

19 and I was given some of the inner work products that

20 was taking place at that time. So it was pretty

21 clear to me what my role was was to give them advice

22 about.

Q. About what?

A. About the work that was being done at

1 the time and some of the data analyses that were

2 being accomplished.

Q. Now, this would be by the -- the work

4 that was being done at the time, wouldn't that have

5 been by the Illinois EPA's UAA contractor Hea &

6 Associates and Vladimir Navotny?

A. Yes.

Q. So U.S. EPA wanted you to help the

9 IEPA and the UAA contractor. Is that what you're

10 telling me?

A. Well, to sort of participate in the

12 meetings. And if issues came up that they had

13 questions about, that I could provide advice during

14 the meeting.

Q. So you were sent as a resource. Would

16 that be an accurate description?

A. Yes.

Q. Okay. Did you, in the course of

19 attending any of the biological subcommittee

20 meetings, did you find anything you felt was wrong

21 about or inappropriate about the way in which the

22 lower Des Plaines UAA contractor, Hea & Associates

23 with Dr. Navotny, were addressing any of the

24 biological inhabitant data you mentioned as being

1 prepared?

A. No.

HEARING OFFICER TIPSORD: Mr. Dimond?

MR. DIMOND: Mr. Dimond again.

Mr. Yoder, did you review drafts of the UAA

report by Navotny and Hea?

MR. YODER: I'm trying to -- I believe

I did at the time, yes.

MR. DIMOND: Did you provide any

written advice to U.S. EPA regarding the

Navotny and Hea report?

MR. YODER: I really don't recall if I

provided written comments. I could well have

done that. I did not -- I don't recollect

that at the time.

MR. DIMOND: Did you draw any

conclusions as to whether or not you thought

the conclusions of the Navotny and Hea report

were accurate and appropriate?

MR. YODER: No.

MR. DIMOND: That's all I have at this

time.

1 BY MS. FRANZETTI:

Q. With respect to your report to the

3 U.S. EPA Region 5 and Illinois EPA that's been

4 marked as Exhibit 15 in this proceeding, did you

5 ever attend a lower Des Plaines UAA stakeholder work

6 group meeting to present and answer questions about

7 this report?

A. No.

Q. Do you know why not?

A. No.

Q. Did anyone ever ask you to attend such

12 a meeting?

A. No.

Q. Okay. Did you attend any of the two

15 public meetings that were held by the Illinois EPA

16 in 2007 to talk about their proposed rules regarding

17 the lower Des Plaines UAA?

A. No.

Q. Have you, before today, appeared at

20 any meeting where potentially affected parties, like

21 my client, Midwest Generation, were able to discuss

22 with you your findings in Exhibit 15 and your

23 recommendations?

A. No.

Q. Moving on to Roman II, fish

2 temperature model, general background.

HEARING OFFICER TIPSORD:

Miss Franzetti before you get going, I just

want to note that thanks to the Agency,

they've contacted CMS and will have a PA

system here about 11:00 o'clock, so that will

help.

MR. DIMOND: Just a brief follow-up

question, Mr. Yoder. Regarding the 2006

study that you did that's been referred to as

Attachment S, was that done as part of the

same cooperative agreement with Region 5?

MR. YODER: Yes.

MR. DIMOND: Was it ever presented to

the lower Des Plaines river stakeholders'

group?

MR. YODER: Not to my knowledge.

MR. DIMOND: And I take it from your

prior testimony that it wasn't presented --

or you didn't present it at the 2007 Illinois

EPA public meeting either.

MR. YODER: No.

MR. DIMOND: Thank you.

MS. WILLIAMS: Can I redirect? Well,

do you know one way or the other whether your

report was distributed to that group?

MR. YODER: No. I don't know that.

MS. WILLIAMS: Can we redirect that

question to an agency witness to answer?

HEARING OFFICER TIPSORD: You need to

speak up. I'm not sure they heard the

question at all.

MS. WILLIAMS: The question was

whether the report was distributed to the

work crew.

MR. DIMOND: Which report are we

talking about?

MS. FRANZETTI: Are you on Exhibit 15?

MS. WILLIAMS: Yes, Exhibit 15.

MS. FRANZETTI: I can answer that

question. It was.

MS. WILLIAMS: Okay.

MS. DIERS: Are you sworn in?

MS. FRANZETTI: Mr. Harley probably

will insist. Actually, let's just go one

more point to close up that subject area.

1 BY MS. FRANZETTI:

Q. Mr. Yoder, your report was

3 distributed, Exhibit 15, to members of the lower Des

4 Plaines UAA work group. There also were parties

5 that commented on your report, Exhibit 15. One of

6 those parties was my client, Midwest Generation.

7 Did you ever see any of the written comments that

8 Midwest Generation submitted to the Illinois EPA

9 regarding your report, Exhibit 15?

A. I did receive it.

Q. You did. Did you review them?

A. No.

Q. You didn't. Why not?

A. I was not asked to, and I was busy

15 doing other things.

Q. And you weren't even curious what we

17 said?

A. Well, naturally, yes. But I, again, I

19 wasn't asked to do it and it wasn't something that I

20 was being tasked with under one of our client

21 agreements.

MS. WILLIAMS: Not billable hours.

MS. FRANZETTI: I wasn't going to go

there. I'm no fool.

1 BY MS. FRANZETTI:

Q. Mr. Yoder, let me just bring that to

3 the present. Up until today, although you have

4 them, have you reviewed the Midwest Gen's comments

5 on your report, Exhibit 15?

A. No.

Q. Okay. Have you reviewed anybody

8 else's comments that may have been submitted and you

9 were given on your report, Exhibit 15?

A. No.

Q. Okay. With respect to then -- any --

12 okay.

Moving on, fish temperature model,

14 Roman II A general background, No. 1. And I'm

15 sorry. I'm going to ask just a general question.

16 Sometimes when you write these questions, you're

17 reading your testimony, Mr. Yoder, and they seem to

18 be a natural beginning. But why don't I just at

19 least have you explain, as briefly as you can, but

20 with doing justice to, what is your fish temperature

21 model?

A. Well, it was initially developed when

23 I was employed at Ohio EPA in support of the

24 development of their current temperature water

1 quality standards. And what it -- how it works is

2 it uses thermal effects data on specific fish

3 species that can be found in the published

4 literature on thermal effects I. It consists of

5 both laboratory and field derived thermal effects

6 end points. It gathers data, I believe, on a

7 variety of different both chronic and acute, what we

8 call chronic and accrued end points. Chronic being

9 things that affect the organisms in ways that don't

10 kill it, affect it behaviorally or physiologically;

11 and acute end points, end points that where the

12 organism is in jeopardy of dying.

So it's a systematic process of

14 compiling data in that manner. It -- So it relies

15 very heavily on literature review.

Q. Okay.

A. It also incorporates a procedure

18 where, to be applied to a specific water body, we

19 generate something called a representative aquatic

20 species list that is a subset of the actual species

21 that might inhabit that water body. The reason for

22 the subset is that there is not sufficient data on

23 every organism or every species that inhabits these

24 water bodies. So you take a subset that is

1 representative of the entire assemblage.

So, really, there's two sort of

3 categories of input variables. One is the thermal

4 end points that are selected for individual species,

5 and then there are the representative species

6 themselves. Then this basically just ranks species

7 according to their thermal tolerance values which

8 are expressed as temperature. And it ranks from the

9 most sensitive to the most tolerant in accordance

10 with four different categories: An optimum, a

11 growth, a calculated growth temperature, an upper

12 avoidance temperature, and a what we call an upper

13 survival temperature.

Q. Thank you. Now, has your temperature

15 model ever been field validated?

A. Is it okay for me to ask? I'm not

17 sure what that means.

Q. Okay. You -- and let me use this

19 situation as an example. The question, though, is

20 not limited to what you did here. You, as you've

21 just explained, you take your representative aquatic

22 species, you collect your literature values to the

23 extent they exist, you then rank them from most

24 sensitive to least sensitive, and based on your four

1 categories. If you don't have literature data, I

2 believe you also extrapolate to create some numbers

3 where you have gaps with respect to those four

4 categories. Isn't that correct, Mr. Yoder?

A. Yes.

Q. Okay. Have you ever, and you come up

7 with ultimately, you take the number for the most

8 sensitive species, correct, as your end conclusion

9 of what should be the thermal standard -- well, hang

10 on. I'm going to step back.

Where I want to start with is, so

12 you come up with values for each of those

13 representative species across four categories,

14 correct? Do you go out into the field and collect

15 data from other people and compare what you're

16 saying should be the thermal temperature for a

17 particular factor to what actually happens out in a

18 stream to see how it compares?

A. Well, I guess, as I understand it, I'd

20 have to say yes. There's been at least one occasion

21 where I think that happened. The other thing I'd

22 like to say is there is field derived data that can

23 be put into the model; some of the species end

24 points include field-derived information.

Q. Actual stream data?

A. Yes.

Q. Can be put into your model?

A. Well, tolerance values based on

5 observations of species distributions by temperature

6 in the field. Those are included in the database,

7 along with laboratory derived end points.

Q. With respect to the end points that

9 you rank in your model, for which end points did

10 you, in doing the -- in applying your model here,

11 did you use field-derived data?

A. Well, field-derived data would have to

13 do mostly with upper -- the upper avoidance

14 temperature.

Q. Okay. Not -- you said mostly. Is

16 that the only end point for which --

A. No. The other one --

Q. -- your model here used field-derived

19 data?

A. The other one would be something

21 called a preferred temperature, which we also merge

22 with the optimum temperature in the model. So those

23 two end points can be field derived.

Q. I understand that -- I understand can

1 be. Would you now answer it for were they in this

2 application of your model for the lower Des Plaines?

A. Yes. It includes some field-derived

4 data.

Q. Do you know whether any of your -- Let

6 me strike that.

I need to ask you how you refer to

8 the end numbers, the values that you came up with

9 here for the Upper Dresden Pool application of your

10 model. How do you refer to those numbers? I want

11 to use terminology that you'll understand.

MS. WILLIAMS: I'm confused. What do

you mean by for the Upper Dresden Island

pool. I'm not sure I understand. Is there

a --

MS. FRANZETTI: You know what, let me

hold off. I think -- let me come back to

this after we go through more of the basics

of how he does his model.

20 BY MS. FRANZETTI:

Q. But let me go to the -- to your

22 answer, Mr. Yoder, with respect to you think there's

23 been one instance where your fish temperature model

24 has perhaps been compared to actual field data. You

1 recall that answer that you gave me, you thought

2 there might have been one instance.

A. Yes.

Q. Okay. Where and when?

A. The one I had in mind would be the

6 Muskegon River in Ohio where the water quality

7 criteria for temperature were derived by this model

8 and they were applied to evaluate and develop a

9 management plan for a particular power plant to

10 discharge the Ohio River or the Muskegon River. And

11 there were biological field studies conducted in the

12 river that, in my view, corroborated the end points

13 that we had set for that main stem of the river.

Q. Okay. So that was the Muskegon River

15 in Ohio. And water quality criteria were being

16 derived for a portion of the Muskegon river?

A. They had already been derived and

18 adopted in 1978.

Q. Oh, okay. I'm sorry. I misunderstood

20 that. And this project -- this project you're

21 talking about is in what year approximately?

A. The one I'm thinking about happened in

23 1988 when we conducted a biological and water

24 quality study of the Muskegon River main stem. When

1 I say we, when I was with Ohio EPA.

Q. Okay. And so are you telling me

3 because the Ohio -- can I call them thermal water

4 quality standards?

A. Yes.

Q. Okay. Thank you. Because the Ohio

7 thermal water quality standards were based on your

8 fish temperature model, is that your basis for

9 saying that this work in 1988 to do this biological

10 water quality study of that river was, in effect, a

11 comparative study to the application of your fish

12 temperature model?

A. Well, I think what I'm saying is that

14 we -- There were observed exceedances of those

15 temperature criteria in the river in 1988, and we

16 saw the adverse biological effects in the field

17 work.

Q. What adverse effects did that

19 biological study identify? What do you mean by we

20 saw adverse effects?

A. Well, the basis for judging impairment

22 would be the numeric biocriteria that Ohio EPA

23 adopted or had in operation at that time. And those

24 indicated an impairment to the biological assemblage

1 and corresponded to temperature exceedances measured

2 in the river.

Q. Temperature exceedances of the

4 existing Ohio thermal water quality standards?

A. Yes.

Q. I'm not following, though -- Well,

7 strike that.

And I'm sorry if I'm repeating

9 myself, but I'm not quite following how this

10 validates your model. Was your model used, were the

11 numbers derived by your model incorporated into the

12 1978 Ohio water quality criteria for the Muskegon

13 River?

A. Yes.

Q. Okay. So you -- So because when those

16 numbers were exceeded, you saw adverse effects,

17 that's what you're saying is the validation of

18 the --

A. In the field data.

Q. In the field data?

A. Yes.

Q. Okay. Do you know how much above the

23 criteria the ambient temperatures were in the

24 Muskegon River that produce these adverse effects?

A. Yeah. The criteria for that river is

2 a daily max of 89 degrees, and seasonal average of

3 85. And I believe both those were exceeded. The

4 maximum is a little easier to compare to the

5 sampling data, and that was exceeded by three or

6 four degrees, I believe, maybe more.

Q. So the ambient temperatures were at

8 least 92 to 93 degrees?

A. Yes.

Q. On a daily max basis?

A. That's what I recall, yes.

Q. Okay. That's what I'm asking you.

13 You can't really say as to how much the average of

14 85 degrees was exceeded?

A. No.

Q. Okay. And so it was at daily maximum

17 temperatures in the 92 to 93 degree range where

18 you're telling us the study identified some adverse

19 effects to the fish?

A. Yes.

Q. Okay. Do you have any knowledge as to

22 whether or not there were any other impairments in

23 the Muskegon River at that time such as low DO?

A. No.

Q. You don't know?

A. Well, I do know. There weren't.

Q. There weren't?

A. No.

Q. So there was high temperatures of 92

6 to 93 degrees and there wasn't low DO?

A. Correct.

Q. Those two don't always go hand in

9 hand, do they, Mr. Yoder?

A. Not always.

Q. Thank you. Any other impairments at

12 that time that could have also caused the adverse

13 effects on the fish in your opinion?

A. Not that I recall, no.

Q. Might have been. You just don't

16 recall them?

A. I'm fairly certain that that's -- it

18 was predominantly a temperature issue.

CHAIRMAN GIRARD: May I ask a quick

question?

MS. FRANZETTI: Absolutely,

Mr. Chairman. I'm not that arrogant.

CHAIRMAN GIRARD: What were some

examples of these adverse effects?

MR. YODER: Well, the -- They were

expressed in the biological sampling results

by a fish index of body integrity. And Ohio

has numeric thresholds for that index. And

the river was not meeting those thresholds,

and it was -- and it also corresponded -- the

nonattainment of these thresholds

corresponded to places where you measure

temperatures were exceeding the current

temperature criteria that were derived by

this model.

CHAIRMAN GIRARD: So what you're

saying, it was presence or abundance of

certain species, not fish kills or some other

example?

MR. YODER: Right. The IPI is -- I

don't know if anyone has talked about that

yet at the hearing, but it's a multimetric

index that takes into account the whole host

of things by the quality and attributes of

the fish assemblage. It's basically a health

index measurement, if you put health in

quotes maybe, so. And Ohio has benchmarks

for its various rivers and streams in

accordance with this index, so that's how

biological condition is ascertained, whether

it's meeting those goals or if it's not

meeting those standards.

CHAIRMAN GIRARD: Thank you.

MS. WILLIAMS: Can we, for the record,

clarify if we're addressing these questions

on Page 22 and 23 at this point then? You

have some questions on this topic that seems

like we're -- we can maybe cross off? The

last two questions.

HEARING OFFICER TIPSORD: Rather than

jump ahead, why don't, if we get there and

they've been asked and answered --

MS. FRANZETTI: I agree. Were we

done?

CHAIRMAN GIRARD: Yes.

MS. FRANZETTI: Actually, I was

wondering if we can take a break?

HEARING OFFICER TIPSORD: Yes. We

can. We'll take about ten minutes.

(Short break taken.)

MS. FRANZETTI: Back on the record.

Mr. Yoder, can I go back for a moment to your

testimony about the Muskegon River. And with

respect to those depression or decrease in

the biological scores that you were talking

about. Do you know what I'm referring to?

A. Yes.

Q. Okay. Do you know whether or not that

7 decline in the biological scores was temporary or

8 permanent?

A. It was during that field season, and

10 subsequent follow-up was not done by a highway PA

11 until, I believe, almost more than ten years later.

Q. Okay. Well, what was it like then?

A. In 1988?

Q. In the follow-up ten years later.

A. In the follow-up I'm not completely

16 certain, although I do -- I understood things have

17 recovered.

Q. And how did they recover? Do you

19 know?

A. Well, most of the main stem now is

21 meeting the biological standards.

Q. Okay. With -- So you don't know what

23 went on -- basically what you're telling me is you

24 don't know what went on in that ten-year period from

1 1988 until the follow-up?

A. Well, I know what went on, yes, in

3 response to the 1988 event.

Q. In terms of whether or not the next

5 season there was an increase in the IPI scores, for

6 example. You don't know because there wasn't any

7 sampling?

A. Again, what I recall is that the

9 entity that operated the power plant did conduct

10 sampling, but there were also some changes in

11 operation at the power plant in response to the

12 thermal issues. And, again, my recollection is that

13 there's -- management responses have positive

14 impact.

Q. So what you're telling me is from --

16 the temperature of the discharges from the power

17 plant in or about 1988 were higher than they were

18 later on in the 1990s, correct?

A. Yes.

Q. And as a result of the lowering of the

21 effluent temperatures, that resulted in the IBI

22 scores increasing. Is that what you know?

A. Yeah. I wouldn't exactly characterize

24 it as lowering of the effluent temperatures, but it

1 was managing the generation output to match

2 compliance with targeting the water quality criteria

3 for temperature.

Q. And is that managing doesn't result in

5 lower effluent temperatures?

A. It can result in a lower heat load.

Q. Okay.

A. Or quantity of heat discharged by the

9 plant.

Q. I think I need you to explain that

11 just a little bit more. Quantity of heat load

12 meaning -- can you explain what you mean by that

13 phrase?

A. Well, without oversimplifying, it's

15 generally the amount of heat that the water holds

16 with respect to the volume of water that's

17 discharged. So it's more like -- It's a mass

18 loading of heat that's coming out of that plant and

19 that can be used to manage the water temperature in

20 the receiving stream.

Q. How do I determine -- How do I measure

22 the quantity of heat load?

A. It's in terms of BTUs per hour. It's

24 called the heat rejectory.

Q. So what you're saying is that the

2 operator of that general -- electrical generating

3 station lowered the BTUs per hour of its discharge?

A. Yes. In other words, it basically

5 managed the heat load so that assured compliance

6 with the temperature standards. And that's the way

7 the subsequent permit for that facility was written

8 and its terms.

Q. Okay.

HEARING OFFICER TIPSORD: Mr. Welch,

is it? Could you state your name and who you

represent.

MR. WELCH: Lyman Welch, alliance with

the Great Lakes. You said that the IBI

scores when -- declined when the heat

increased to the Muskegon River. Can you

explain, when you say the scores changed, is

that -- Does that mean that there were less

fish in the river or less baby fish or

different types of species of fish? What

does that mean?

MR. YODER: Well, a change in an index

like that doesn't -- it means there was a

shift in the composition of the fauna, and

generally what happens is that you lose --

the most intolerant representatives will

either decline in abundance or move out, and

that will subsequently lower the index, so it

can be -- It isn't necessarily a reduction in

the numbers of fish. It can just be a

rearrangement of the fauna, favoring tolerant

species and hurting intolerant species. It

can also reflect a change in species

diversity in all of the above. It's just

that in a given place you need to be aware of

why the index is changing. And that's part

of the analysis of what the associated

stressors might be contributing to that.

MR. WELCH: Thank you.

HEARING OFFICER TIPSORD: Miss Dexter,

please identify yourself.

MS. DEXTER: I'm Jessica Dexter at

ELPC.

An IBI is an ecological health

index, right?

MR. YODER: Yes.

MS. DEXTER: So a lower IBI

essentially indicates a change in the species

assemblage?

MR. YODER: Yes.

MS. DEXTER: If fish are avoiding an

area because of heat, would that impact the

species assemblages?

MR. YODER: Yes.

MS. DEXTER: So because of the

tendency of fish to avoid high temperatures,

would you expect certain species or classes

of species to disappear from an area as

temperatures in that area increase?

MR. YODER: Yes. It would also be a

function of how long those temperatures

persist and over what length of river segment

that occurred and so on.

MS. DEXTER: Would you say that high

temperatures will not necessarily lead to

fish kills because the fish won't be there to

begin with?

MS. FRANZETTI: Objection at this

point. I don't consider this follow-up, and

I'm objecting because there's a limited time

period with Mr. Yoder, and I would like to

get back to my prefiled questions.

MS. DEXTER: I'm trying to clarify

what we're talking about -- This is my last

question. We're talking about the IBI.

HEARING OFFICER TIPSORD: You need to

speak up and go ahead and answer.

MS. DEXTER: Would you say that high

temperatures will not necessarily lead to

fish kills because the fish won't be there to

begin with?

MR. YODER: I think it's pretty rare,

especially in an open system like a river, to

see fish kills because fish are very

sensitive to detecting very small changes in

temperature and they can avoid. I think in

my entire career I've only seen what can be

termed an actual thermal kill in one

situation. Most of the time it doesn't

occur.

MS. DEXTER: Thank you.

HEARING OFFICER TIPSORD: And I had a

follow-up in the back.

MR. HOWE: My name is Peter Howe. I'm

here just for myself. And, Mr. Yoder, can

you give us specifics in exactly what species

were avoiding that temperature?

MR. YODER: It was primarily a group

of fish from the family Catostomidae or

suckers, and it was the sort of a subgroup

that we call red horse species which are

thermally sensitive species and also very

important components of Midwest river fish

assemblages, and that's primarily the group

of fish that that were avoiding this area.

MR. HOWE: Thank you.

HEARING OFFICER TIPSORD: Could you

spell your last name.

MR. HOWE: Howe, H-O-W-E.

14 BY MS. FRANZETTI:

Q. Mr. Yoder, just because now we've

16 opened up this new topic, are you saying there were

17 no fish in this area?

A. No.

Q. Okay. So not everybody moved out and

20 avoided the area, correct?

A. Correct.

Q. And of those that did, they were able

23 to live in a 92/93 degree water, didn't need to

24 avoid it, correct?

A. The species that were left obviously,

2 yes, they were there, yes.

Q. Okay. But the red horse were more

4 sensitive to the thermal levels and they left,

5 correct?

A. Yes.

Q. Did they leave forever?

A. No.

Q. Okay. Can I go back to my questions?

HEARING OFFICER TIPSORD: Absolutely.

11 BY MS. FRANZETTI:

Q. I think we are on II A2. In the

13 Illinois EPA statement of reasons at Page 81, it is

14 noted that the approach to deriving thermal

15 standards -- I'm sorry. It is noted that the

16 approach to deriving thermal standards was used by

17 the Ohio EPA in 1978 and by the Ohio River Valley

18 Water Sanitation Commission in 1984, and the

19 approach is referring to your fish temperature

20 ranking methodology. I think we established this

21 earlier, but I just want to make sure we were

22 talking about the same thing. Am I right that your

23 approach has not been used again to set thermal

24 water quality standards in the 23 years since?

A. No. The highway EPA hasn't changed

2 the original standards that were inducted in 1978,

3 but ORSANCO did commission the study that we did to

4 update the methodology and any subsequent changes

5 that might have to their temperature criteria.

Q. Okay. But outside of Ohio, has your

7 fish temperature ranking approach been used to

8 establish any thermal water quality standards?

A. Not to my knowledge.

Q. Okay. Now, when your approach has

11 been used, and I'm on Question 3, in '78, '84, and

12 however you're referring to it as being updated and

13 used by ORSANCO, were there extensive stream data

14 such as those existing here for the lower Des

15 Plaines river available for use instead of the

16 published literature data approach that you use?

A. If I understand your question

18 correctly, I would say that for the Ohio River --

19 well, you know, I'd say yes, in the Ohio River

20 extent. I mean ORSANCO has a fairly extensive

21 biological monitoring program.

Q. So in 1984 that --

A. Oh, in 1984. No. That predated their

24 program. So other than what was available in the

1 main stem around the -- probably the most of the

2 studies that were conducted were done by various

3 power companies and intended to be around in the

4 vicinity of power plants.

Q. So there wasn't extensive stream data?

A. I did my Master's thesis on the Ohio

7 River, and we covered at least 200 miles of the main

8 stem with that type of data.

Q. I'm just asking you whether in those

10 two instances when your fish temperature ranking

11 model, you're saying, was used to derive the thermal

12 standards, was there extensive stream data

13 available?

A. I would say yes, there was, for the

15 Ohio River.

Q. Okay. Was it used at all to compare

17 your fish temperature ranking numbers to --

A. If I understand what you're getting

19 at, I would say no, it wasn't. I mean we didn't

20 have a study like the one I reference on the

21 Muskegon, but there were a number of power plant

22 studies on the Ohio River done for the 316

23 variances.

Q. Okay.

MS. WILLIAMS: Can I ask a redirect at

this point? So as far as your -- I guess I

want to make sure I understand your

understanding of her question. When she's

referring to extensive stream data, do you

interpret that as being biological data or

ambient temperature data or both?

MR. YODER: Well, I interpret it as

being at least the biological data, and then

also a lot of those studies also collected

temperature data at the same time.

MS. WILLIAMS: And are you aware of a

method for using that data to establish water

quality standards?

MR. YODER: Other than what I referred

to before when we decided the use of

field-derived upper avoidance in preferred

temperature end points, some of those came

from field studies conducted in the Ohio

River.

MS. WILLIAMS: Thank you.

22 BY MS. FRANZETTI:

Q. Mr. Yoder, did I understand your

24 answer correctly, you're not aware of any other

1 methodology for establishing thermal water quality

2 standards other than your fish ranking approach?

A. Oh, no.

MS. WILLIAMS: That wasn't my

question.

MR. YODER: I didn't mean that at all.

MS. FRANZETTI: What were you

referring to when you said you weren't aware

of any other methodology?

MS. WILLIAMS: My question was whether

he was aware of methodology for using

extensive data for setting standards as the

term was used in your question.

MS. FRANZETTI: Thank you. All right.

15 BY MS. FRANZETTI:

Q. So the answer is no, you're not aware

17 of any methodology that utilizes actual stream

18 survey data to derive thermal water quality

19 standards?

A. I'm not sure that's what I said. I'm

21 getting very confused.

Q. Please clarify what you said. I'm not

23 understanding.

A. Well, when I hear the use of field,

1 you know, using field observations to set

2 temperature criteria, I'm trying to best explain

3 what I'm familiar with, and if those studies existed

4 in 1984 in the Ohio River. And, to my knowledge,

5 they did exist.

Q. Okay. But I'm now referring to your

7 answer to Miss Williams' question. What were you

8 referring to in terms of methodologies not existing?

9 Mr. Yoder, let me try to rephrase my question.

Are you aware of any methodology

11 which can take the field stream data, biological end

12 temperature, and derive a thermal water quality

13 criteria based on that information?

MS. WILLIAMS: Can you clarify for the

record what you mean. You said our

methodology. Is that what you called it?

MS. FRANZETTI: No. Any.

MS. WILLIAM: Are you aware of any?

MS. FRANZETTI: Any.

MR. YODER: I would have to say yes, I

am. And we've been very involved with U.S.

EPA and trying to develop methods for

deriving any water quality criterion with

field observations, and that would include

temperature.

2 BY MS. FRANZETTI:

Q. Okay. That's what I was -- That's

4 what I was trying to clarify. Your fish ranking

5 approach using literature data is not the only

6 methodology available to be used to derive thermal

7 water quality standards, correct?

A. That's correct.

Q. Okay. With respect to the U.S. EPA

10 work you were just referring to in that prior

11 answer, is the U.S. EPA trying to establish a

12 methodology based on stream survey data for deriving

13 thermal water quality standards? Is that part of

14 the work you're working on?

A. Yeah. It's not aimed specifically at

16 temperature. It's aimed at really any stressor

17 variable we might want to manage. But it is a

18 methodology for relying primarily on the biological

19 responses measured in the field to assist in

20 developing water quality in other types of

21 management criteria.

Q. Okay. That work is not complete, I

23 take it, for thermal. You can't tell us what that's

24 coming up with?

A. No. It's ongoing. I'm aware of some

2 work going on, it's centered around some of the

3 climate change research. It's just getting

4 underway.

Q. Okay. Question No. 4: In retaining

6 the services of the MBI/CABB for the development of

7 temperature criteria, did the Illinois EPA

8 discuss -- Strike that.

MS. FRANZETTI: I'm sorry, Debbie. I

think you probably would object to that

opening phrase, so.

MS. WILLIAMS: I was going to say that

must be a question for someone else.

MS. FRANZETTI: Well, let me just chop

off the prefatory phrase.

16 BY MS. FRANZETTI:

Q. Did the Illinois EPA discuss and/or

18 review with you, Mr. Yoder, or your colleagues at

19 MBI/CABB the alternative approach of using and

20 relying on extensive available stream habitat and

21 biological data for the lower Des Plaines river to

22 derive thermal water quality standards?

A. I would have to say no to that.

Q. There was no discussion whatsoever of,

1 Mr. Yoder, we have these annual stream studies that

2 are submitted to us every year by one of the

3 dischargers out there that survey the fish, the

4 temperature data. Can we utilize that to help

5 derive thermal water quality standards?

A. Well, in a very broad sense, yes, I

7 was provided that information and we had to have it

8 to develop the representative species list that were

9 applied in the fish temperature model.

Q. What information were you provided?

11 Do you know? Can you describe it?

A. The compilation of fish species that

13 have been collected in this part of the lower Des

14 Plaines River. I think it was one of the appendix

15 tables that ended up in the UAA report.

Q. Other than that, that's just a list of

17 fish, right?

A. Right.

Q. Other than being given that, were you

20 given any other stream survey data related to fish

21 studies, thermal levels in the Upper Dresden Pool?

A. No. I'd have to say no.

Q. So you didn't see 20 years of data

24 that had been collected like that for the Upper

1 Dresden Pool?

A. No, not that I factored into this

3 analysis.

Q. I'm not talking about what you

5 factored in. I know you didn't factor it in. Did

6 you even get it and look at it?

A. I -- no. Other than the summary I

8 mentioned.

Q. Right. Of the -- and that's just --

10 that's the list of fish, correct?

A. Correct.

Q. Can you tell me why -- Well, let me

13 strike that.

Were you aware that such data

15 existed?

A. Well, I was aware that there had been

17 field sampling taking place, so I was generally

18 aware, yes.

Q. Okay. Can you explain to me why you

20 felt it wasn't at all useful or relevant to ask for

21 that data, to see that data and review it as part of

22 the work you were doing for the agency?

A. Well, it wasn't so much that why I

24 feel it would have been useful. It was just outside

1 of the scope of my task.

Q. Oh, okay. So I should not at all

3 infer from the fact that you didn't even look at

4 that data that you think it was irrelevant? You

5 think it didn't have any use. It was outside the

6 scope of what you were asked to do, correct?

A. Well, again, I mean I would not agree

8 that it's irrelevant.

Q. I understand.

A. That it was -- I have to operate

11 within the constraints of my project task.

Q. I understand. You're going to save me

13 a bunch of questions, but --

A. Which is more than technical

15 considerations.

Q. Right. Okay. So it was not within

17 the scope of what you were asked to do to look at

18 any of that stream survey data, correct?

A. Right.

Q. Okay. I think I can skip No. 5 that

21 asks if the fish studies that were collected have

22 been provided, and it's been answered. Well, let me

23 ask this one. It might have come to him through

24 another way. No. 6, Mr. Yoder, have you reviewed

1 the August 2007 EA engineering report entitled,

2 Development of biologically based thermal limits for

3 the lower Des Plaines River that was prepared for

4 Midwest Generation and submitted to the Illinois

5 EPA?

A. No.

Q. Did anybody tell you that existed?

A. I was aware of it.

Q. How did you become aware of it?

A. I saw a poster at the EPRI symposium

11 in October.

MS. WILLIAMS: Tell them what EPRI is.

MR. YODER: EPRI is the Electric Power

Research Institute.

15 BY MS. FRANZETTI:

Q. Was somebody speaking about it?

A. I believe Mr. Siegert was the author.

Q. Okay. Did you listen to Mr. Siegert?

MS. WILLIAMS: Excuse me. Can we let

the record reflect that Mr. Seigert is your

technical expert sitting with you at the

witness table.

MS. FRANZETTI: I'd love the record to

reflect he's an expert. Absolutely.

1 BY MS. FRANZETTI:

Q. Mr. Yoder, did you listen to

3 Mr. Siegert's presentation at the conference?

A. Yes.

Q. Okay. I have to ask. What did you

6 think about it?

A. I don't have an opinion. I haven't

8 had enough time to look at it thoroughly enough to

9 have an opinion.

Q. All right. One more question. Did

11 anyone from U.S. EPA discuss with you at all the

12 Midwest Generation alternative thermal water quality

13 standards proposals, any of them, that have been

14 submitted to the UAA stakeholders' group over the

15 time of that group's efforts?

A. Not in any detail, just other than the

17 fact that some of these alternatives existed.

Q. Did they characterize them at all in

19 terms of what they thought about them?

A. No.

Q. Moving on to Question 7. Referring to

22 the Ohio EPA stream assessment program that is used

23 to designate use classifications for Ohio water

24 bodies, is it correct that the Ohio program

1 emphasizes the use of field biology?

A. Yes.

Q. Is the field-based approach the

4 foundation of Ohio's biological criteria?

A. Yeah. It's all field based.

Q. So moving on to Question 8, is it

7 correct to say that in the Ohio stream assessment

8 system, attainment of a use is achieved only when

9 certain biological end points are met rather than

10 just relying on attainment of chemical water quality

11 criteria?

A. Yes.

MS. DEXTER: Can I ask a clarifying

question? Does attainment in this situation

mean attainment as we've been discussing

under the U.S. EPA use attainability --

MR. YODER: Yes.

18 BY MS. FRANZETTI:

Q. Okay. Moving on to Question 9. In

20 Attachment R -- and, Mr. Yoder, I'm sorry. That may

21 be asking you something you don't even know what I'm

22 talking about. Do you know what Attachment R is to

23 the Illinois EPA statement of reasons? I see

24 Illinois counsel I think has provided you with a

1 copy of Attachment R.

A. Yes.

Q. You can look at it. Do you recognize

4 it?

A. Yes.

Q. What is Attachment R?

A. It's titled analysis of physical

8 habitat quality in limitations to waterways in the

9 Chicago area authored by Edward T. Rankin.

Q. Is Mr. Rankin one of your colleagues?

A. Yes.

Q. Okay. He works for which

13 organization?

A. He is an Ohio University employee, but

15 he does -- he works on our projects.

Q. Okay. And then by our, you're talking

17 about the CABB, MBI?

A. Yes.

Q. Okay. In Attachment R, Mr. Rankin

20 wrote, and I'm quoting, the ultimate arbiter used in

21 the designation of aquatic life uses under the Ohio

22 system is biological data?

MS. WILLIAMS: Excuse me, Susan. Do

you have a page reference for that?

MS. FRANZETTI: I should, but I'm not

sure I do. Can you give us a moment.

MS. WILLIAMS: Sure.

4 BY MS. FRANZETTI:

Q. Page 2, Mr. Yoder. And if you go

6 immediately to the right of the box towards the

7 bottom of Page 2 that says figure 1. It's the first

8 sentence under decision-making process for assigning

9 aquatic life uses. And it says, the ultimate

10 arbiter used in the designation of aquatic life uses

11 under the Ohio system is the biological data. Do

12 you see that? Are you with me?

A. Yes.

Q. Okay. My question is do you agree

15 that it makes sense to use a similar approach to

16 assessing thermal conditions in situations where

17 sufficient field data are available?

A. Yeah. I think it makes sense.

Q. Since you do, the rest of my question

20 in No. 9 was what would you view as sufficient field

21 data to warrant the use of the approach that your

22 colleague, Mr. Rankin, is describing in that report?

23 And I'm just simply trying -- not a trick question,

24 Mr. Yoder, is what -- What do you think the meaning

1 is of sufficient field data in your -- in your

2 opinion? How much do you need?

A. Well, I think it's multi-dimensional.

4 And I think the important thing is you have to have

5 the realistic response range of the aquatic

6 assemblage that you're interested in across several

7 different representatives of that water body type

8 which, in this case, would be large rivers. It has

9 to have geographic relevance, it -- I don't think it

10 can be from just one river. It's stronger when you

11 have data from several rivers. It also represented

12 a gradient of stressor effects from least impacted

13 to highly impacted. So those are kind of the

14 parameters that I would set, you know, in terms of

15 the scope of such studies.

The additional thing is,

17 especially with things like measurement of

18 temperature, that the actual measurements that are

19 being taken in the field are representative of where

20 the organisms actually came from. So there's a

21 number of considerations here that have to be looked

22 at.

Q. Okay. Are you a proponent -- I'm

24 moving on to Question 10. Are you a proponent of

1 using field collected biological data to assess

2 aquatic community impairment?

A. Yes.

Q. Why is that?

A. Well, to put it in context, you know,

6 from the historical alternative that using chemical

7 and physical criteria as surrogates for biological

8 health, that the measurement of the assemblages

9 itself is a more direct measurement; and, hence, if

10 done properly, more accurate and more

11 representative.

Q. Moving on to No. 11. Do many

13 variables, EG, habitat, sentiment quality, water

14 quality, flow, collectively determine the nature and

15 quality of aquatic communities?

A. Yes.

Q. Is it -- No. 12. Is it true that the

18 aquatic community integrates, and by that I mean

19 responds, to these collective inputs?

A. Yes.

Q. How does one reliably separate the

22 effects of the various inputs that affect aquatic

23 communities? Can you do that?

A. Yes. There's -- I think it's best

1 done when you have reliable information on the

2 stressors. You also know how those stressors affect

3 the response variables that you're measuring in the

4 bio -- again, over the sort of parameters that I

5 stated before, that it has geographic relevance, is

6 that it has relevance along the continuum of

7 biological response, and it also has relevance

8 against a gradient of stressor effects. And if all

9 that is in place, then you can, I believe, at least

10 get indications as to what the major categorical

11 stressors are that are affecting an aquatic

12 assemblage over space and time.

Q. I think I understand what you're

14 saying. So you can get some levels of degree of

15 impact, not -- you can't necessarily get precision,

16 like a particular stress is 10 percent of the cause

17 or 40 percent of the cause of the effects on the

18 aquatic community; is that right? When you say

19 categories, you're kind of saying these are the big

20 guys, these --

A. Well, by categorical I was referring

22 more to classes of stressors like habitat versus

23 nutrients versus toxicity, separating those kinds of

24 things out rather than saying, well, it's copper

1 versus (inaudible).

Q. Or it's sediments versus flow?

A. I think --

Q. See, that's what I'm asking in one --

A. That would fit the categorical class

6 of stressors.

Q. Okay.

A. The problem is in some situations,

9 some stressors will mask other stressors, and so you

10 have to have data over time as well. I think it

11 helps in certain situations to have that, and

12 especially where some management process is in place

13 that is alleviating one stressor so you can -- and

14 that's how we learn is through basically a lot of

15 different case studies.

Q. Right. So I mean what -- I think what

17 you're saying to me is in a particular water body,

18 if you have multiple stressors operating at the same

19 time, it can be difficult to figure out which of

20 those multiple simultaneous stressors are causing

21 the worst impacts on the aquatic community, correct?

A. Some more difficult than others, but

23 difficult doesn't mean impossible.

Q. I understand. I understand. What I'm

1 trying to get to is your point about if you can

2 remove them. So, in other words, what you're saying

3 is if you can isolate a stressor or get rid of it

4 and then see what the effect is, that can also help

5 you when you made your point about masking, things

6 masking the stress. That's what you were referring

7 to?

A. Yes.

Q. Okay. Moving on to No. 14, and let me

10 preface this with, Mr. Yoder, are you familiar with

11 the 1985 U.S. EPA quote, "Guidelines for deriving

12 numerical national water quality criteria for the

13 protection of aquatic organisms and their uses"?

A. Yes. I know what it is.

Q. And tell me if -- I'm going to now ask

16 the question as it was written, and if you're not

17 familiar enough with the 1985 document to answer it

18 just tell me that and I'll move on. But if you are,

19 then I would appreciate an answer. Is the report

20 you prepared for U.S. EPA and the Illinois EPA, and

21 that is Exhibit 15, consistent with the 1985 U.S.

22 EPA, quote, guidelines for deriving numerical

23 national water quality criteria for the protection

24 of aquatic organisms and their uses?

A. I'm not entirely sure. I know it has

2 some elements in common, but I'm not sure if it's

3 consistent with every detail.

Q. Can you tell me what elements you

5 think it does have in common with that guidance?

A. Well, the use of specific end points

7 of harm and the concept of representative species it

8 has in common.

Q. Okay. So the use of specific end

10 points, we are referring to what you earlier

11 described as those four categories that are used in

12 your fish ranking approach?

A. Yes.

Q. Okay. And with respect to the concept

15 of representativeness, you're referring to your use

16 of the concept of representative aquatic species,

17 correct?

A. Yes.

Q. Any other respects in which you think

20 your approach is consistent with the 1985 U.S. EPA

21 guidelines?

A. Nothing that I'm familiar with.

Q. Do you know whether in that guidance

24 or guidelines the U.S. EPA advocates the use of high

1 quality field data where such data are available?

A. Not specifically, no.

Q. Mr. Yoder, on a related point, do you

4 recall just this past October you gave a

5 presentation at a conference in Denver, the title of

6 which was, quote, "Ohio EPA Methodology Fish

7 Temperature Modeling System." And did you, in that

8 presentation, support the inclusion of field data in

9 developing thermal water quality standards?

A. Yes.

Q. Actually, I think I may have referred

12 to it as being essential, isn't that right?

A. Well, I can't recall my exact words,

14 but.

Q. Do you think it's pretty important?

A. I think it's important.

Q. Thank you.

MS. WILLIAMS: May I ask a redirect at

this point?

MS. FRANZETTI: Sure.

MS. WILLIAMS: Mr. Yoder, in your

opinion, would biological and temperature

field data from only the Upper Dresden Island

Pool, even if it was many, many years' worth,

be sufficient to derive thermal water quality

standards in the Upper Dresden Island Pool?

MR. YODER: I apologize. Can you

restate that? I'm sorry.

(Record read back.)

MR. YODER: I think, based on my

knowledge of that area, I would say no, it's

not sufficient.

9 BY MS. FRANZETTI:

Q. Why not?

A. Well, as I said before, I think you

12 need -- one, to me it's too geographically

13 constrained, and I don't believe it represents the

14 full range of possible biological quality that

15 exists in Midwest rivers from least impacted to

16 highly degraded, and it may get closer to the

17 representing the low end of the stressor gradient.

18 And I think it lacks the -- when I say low end, the

19 most -- the highest degree of stress. I think it

20 lacks some other aspects of what we would like to

21 see in a field derivation of any environmental

22 stressor variable.

Q. What else does it lack?

A. That's what comes to mind. I think

1 that's what I said is sufficient.

Q. Okay. I just want to have a full

3 understanding of your opinion.

HEARING OFFICER TIPSORD: Excuse me,

if I may. I just want to ask a redirect

myself. Because I'm, frankly, quite

confused. Mr. Yoder, you're basing what this

would lack on sort of our conjecture and

hypothetical that if this existed. Because

you haven't actually seen any data, I believe

you testified earlier, specific temperature

data that was collected over the last 20

years, right?

MR. YODER: No. I'm speaking

generally about more the, you know, the

environmental setting, what does that

represent. I am aware of some of the data.

I mean I sat in on the biological

subcommittee and heard some of the results

expressed, and I mean it -- based on my, you

know, 30 plus years of experience of looking

at a lot of different rivers and streams of

varying quality, I was able to form a picture

of what this area is like. And part of it

100

would fit then in the context of what I

described as what we like to have for

deriving fields -- field-derived stressor

variables which is another way of saying, you

know, environmental criterion.

HEARING OFFICER TIPSORD: But, again,

and excuse me for interrupting you. But I

want to be clear, because Miss Williams'

question was in the hypothetical, that if you

had seen data collected from one source -- Am

I misstating the question?

MS. WILLIAMS: Go ahead and finish.

HEARING OFFICER TIPSORD: If you had

seen data, that it would not have impacted

your --

MS. WILLIAM: Yeah. I think you are

misstating it.

HEARING OFFICER TIPSORD: Maybe I

misunderstood your question.

MS. WILLIAM: No, no. It's okay. And

I think this will definitely go over into the

testimony line, but since I'm still sworn.

My understanding of this line of questioning

is Miss Franzetti is trying to get at other

101

possible ways, methods beyond his method.

Are there different methods, not the method

that he used in his report. So I was getting

at -- and so she's asking him about if he

agrees that there could be other methods. My

redirect was directed at this hypothetical

other method, would you have what you needed

here to do that?

HEARING OFFICER TIPSORD: Okay.

Right. Your question was would you have what

you needed if you had data from one source.

Okay. Mr. Howe?

MR. HOWE: Peter Howe. Mr. Yoder, I

would characterize this, and I don't want to

put words in your mouth, as a recovering

ecosystems from a long history of impact --

HEARING OFFICER TIPSORD: Mr. Howe,

you have to form this as a question, please.

MR. HOWE: Okay. Would part of your

response be based upon the condition of that

waterway as it exists today and as it existed

historically? I mean it has been impacted.

The question about could you entirely --

could you derive water quality standards for

102

that river today based upon the existing

fishing community. I think that's what

you're getting at. Is that right?

MS. WILLIAMS: I'm not sure. But if

you understand, go ahead.

MR. YODER: I think I understand, and

it gets back to my -- one of the sort of

criteria for what's a good data set and what

does that data set represent. That if it

only represents a system that's in a state of

recovery, it's hard to get any -- it's hard

to get much dimension out of that response

against something like an environmental

variable, physical, chemical, whatever. It

doesn't allow enough vectoring, so to speak,

along the entirety of the realistic

biological condition gradient that actually

exists across, say, the Midwest. And I think

that's correct.

MR. HOWE: Thank you, Mr. Yoder.

21 BY MS. FRANZETTI:

Q. Mr. Yoder, just so I understand, in

23 contrast do you believe that the use of solely

24 literature data is a sufficient basis on which to

103

1 derive thermal water quality standards for the Upper

2 Dresden Pool?

A. Well, it can be a basis.

Q. Not it can be. Are you -- You've just

5 said --

A. Do I think it's sufficient?

Q. You just gave an answer about the 20

8 years of stream study data that you haven't seen.

9 But hypothetically that you don't think that's a

10 sufficient basis. I'm asking is purely literature

11 data a sufficient basis on which to derive thermal

12 water quality standards?

A. In the sense that the current system

14 that we operate under, and you did refer to EPA's

15 1985 guidelines. If I read that correctly, yes,

16 that would be acceptable.

Q. Just using literature data?

A. Yes.

Q. Okay. I just want to establish what

20 your opinion is. Moving on to B1. Use designation

21 decisions. On Page 4 of your prefiled testimony, it

22 is stated that the temperature criteria options

23 report was developed prior to and independent of the

24 use designation determinations proposed in this

104

1 rulemaking, and that you did not participate in the

2 use designation process. Is it correct then that

3 the thermal criteria you developed in your report

4 were not developed based on the proposed uses

5 described in the Illinois EPA's proposed rules?

A. Yeah. I'd say so. I mean I did not

7 know what those were going to be when this report

8 was written.

Q. Moving on to No. 2. Is it correct

10 that you were not asked to determine whether your

11 proposed thermal criteria were protective of the

12 aquatic life use designation proposed for the Upper

13 Dresden Pool and the CAWS?

A. No, not directly, no.

Q. Were you ever asked whether your

16 proposed thermal criteria were overly stringent?

MS. WILLIAMS: Can I stop for a

second. I think it was a yes or no question,

but I want to make sure I understood because

she asked -- it's kind of a -- is it correct

that you were not asked. So by saying no

you're not saying no, it's not correct?

A. Right. You're saying no you were not

24 asked. Do you understand.

105

MR. YODER: Yeah. It's kind of -- I

mean because I did this before that was said,

it's like was impossible.

Q. Of course not, right. You weren't

5 asked. Mr. Yoder, it may seem obvious to you but

6 the other thing that -- well, I'm not going to

7 testify. I'm not going to testify.

So you were also -- you were also

9 never asked whether your proposed thermal criteria

10 were overly stringent to protect the proposed Upper

11 Dresden Pool aquatic life use, correct?

A. Yes.

Q. Moving on to Question 3. On Page 4 of

14 your prefiled testimony it's stated, quote, "I was

15 not asked to propose specific thermal criteria for

16 either the lower Des Plaines river or the Chicago

17 area waterway system." So I know we talked a little

18 bit about this this morning, but for your report

19 that is Exhibit 15, what were you asked to do?

A. I was asked to provide temperature

21 criteria options for -- I'm trying to put this in

22 the right words -- for three potential use

23 designation options for the lower Des Plaines river.

MS. WILLIAMS: To keep the record

106

consistent, can we ask Mr. Yoder who he was

asked by to do that. Who asked you?

MR. YODER: U.S. EPA.

4 BY MS. FRANZETTI:

Q. Thank you. I may have been saying --

6 was I saying IEPA?

MS. WILLIAMS: No. It was unclear.

8 BY MS. FRANZETTI:

Q. All right. So U.S. EPA brings you in

10 and says, Mr. Yoder, we need you to provide us with

11 temperature criteria options for three potential use

12 designations for the lower Des Plaines, correct?

A. I apologize. Can I hear that question

14 again.

Q. Were you not paying attention to me?

A. I'm sorry.

Q. I'm partly doing it because that's an

18 important point. And, again, my voice carries

19 better than yours, so I know you're -- I thought you

20 were looking at me like, lady, that's just what I

21 said.

So basically you were asked by the

23 U.S. EPA to provide temperature criteria options for

24 three potential use designations for the lower Des

107

1 Plaines, correct?

A. Yes.

Q. That's what this report was responding

4 to?

A. Yes.

Q. And that is Exhibit 15?

A. Yes.

Q. Now, how did you decide -- Wait a

9 second. Back up. I just realized I'm assuming

10 something. Did you decide on the 3 potential use

11 designations for -- that you used -- that were

12 coming up with the temperature criteria options for

13 or did U.S. EPA give you three proposed use

14 designations?

A. Well, we discussed what those options

16 should be.

Q. You did. Okay.

A. Yes. And they --

Q. Who did you discuss it with at U.S.

20 EPA?

A. Ed Hammer.

Q. Anybody else?

A. No. Ed is the primary technical

24 manager.

108

Q. All right. And about when, just to

2 give this some context? Do you remember would this

3 have been in 2005 you and Mr. Hammer have this

4 discussion?

A. No. This was before. This was kind

6 of a spin-off of my involvement with biological

7 subcommittee. So I was aware of what the options

8 realistically might be out of the UAA. But it did

9 precede the publication of the UAA.

Q. I see. Okay. And so give us as best

11 you can recall the summary of how did you and

12 Mr. Hammer come up with what -- I believe is general

13 use was one of the three, right? Modified use, and

14 then secondary contact indigenous aquatic life use.

15 Are those the three potential use designations that

16 you based your work on?

A. Yes.

Q. Okay. Give us some understanding of

19 why those three were chosen to for you to use for

20 your basis for coming up with temperature criteria

21 options?

A. Well, the general use in the secondary

23 contact use already exists as designated uses in the

24 Illinois standards and then this modified use was

109

1 something that was being discussed as part of the

2 UAA process.

Q. Okay. That one was being discussed in

4 connection with the Upper Dresden Pool, correct?

A. Yes.

Q. Just to clarify, any discussion of

7 maybe a fourth use? I mean how come it's three?

8 How come it's general use, secondary contact

9 indigenous aquatic life and modified use? Is

10 that -- Because that's generally enough, you think,

11 to cover the board. I'm just trying to -- Did you

12 guys maybe start with five, get down to three?

A. No. I mean there are other options,

14 but these were viewed as the most realistic outcomes

15 of the UAA.

Q. Now, I think you've answered this, but

17 just to be clear, moving on to Question 5, your --

18 when you use general use in your report, that

19 proposed use designation, that was intended to be

20 the same conceptually as the existing Illinois

21 general use classification, correct?

A. Yes.

Q. Okay. Now, what -- Moving on to 6.

24 What would be the habitat requirements for the

110

1 species that comprise the aquatic community you have

2 identified as representative of general use -- of

3 the general use category you considered for the

4 lower Des Plaines river?

I'm sorry. Mr. Yoder, are you

6 waiting for me? Go right ahead.

A. Well, it's a very broad issue, but

8 generally those species require a certain habitat to

9 support their population. So it's sort of what's

10 typical of what we look at it as it's typical of

11 what corresponds to the sort of the Clean Water Act

12 Gold Minimum that is required for waters of the U.S.

Q. The Clean Water Act Gold Minimum?

A. Mm-hmm.

Q. The minimum requirements to achieve

16 aquatic life use?

A. Yes.

Q. Full aquatic life use?

A. Right. And I equate Illinois's

20 general use with that minimum requirement as it is

21 in a lot of states where it's just stated as a

22 general aquatic life. That's sort of the

23 presumption you have to make, because these uses

24 aren't very specific beyond that.

111

Q. Right. But I'm trying to, and tell me

2 if you don't know, you know, if it's not something

3 you can answer, you can just tell me that. I'm

4 trying to get an understanding of what are the

5 habitat characteristics, I'm calling them

6 requirements in this question, that are needed that

7 go along with achieving general use?

MS. WILLIAMS: If you don't mind, for

Mr. Yoder's benefit, I guess I would just

point out to him we have discussed terms

already like QH, EI index, and that -- I mean

if he -- I want him to know that our level of

understanding has included those terms

already, if he wants to use them.

MS. FRANZETTI: Thank you, Counsel.

16 BY MS. FRANZETTI:

Q. Mr. Yoder, do you remember the

18 question? What kind of habitat should I find in a

19 general use stream?

A. I'm trying to give a good answer here.

21 It's a very general question. Let me start out by

22 saying what it maybe isn't.

Q. Well, I'd kind of rather you tell me

24 what it is. But all right, if that's the way you've

112

1 got to approach it. Go ahead.

A. Well, it doesn't have to be a pristine

3 unmodified water body. I think this notion that the

4 Clean Water Act Gold Minimum recognizes that there

5 have been changes to the natural state of the

6 environment, and yet we can still expect to have

7 some kind of a sustainable aquatic fauna as a

8 minimum so, therefore, it doesn't have to be natural

9 riverine habitat. But there are certain minimum

10 things that it needs to have: The fish need to have

11 sufficient substream covered, flow, water, that type

12 of thing. I mean we've developed some rules of

13 thumb centered around certain indices of habitat

14 that I think come into play. And one is the QHEI.

15 And so generally the rule of thumb is that

16 anything -- an index score above 60 is a no doubter.

17 But anything below 60 doesn't necessarily disqualify

18 them.

Q. And also doesn't necessarily qualify

20 it. I think we heard it was gray area yesterday.

A. Right. And you have to look at some

22 other things like the preponderance of what we call

23 modified attributes versus good quality attributes.

24 And there is a threshold below which generally

113

1 there's not a correspondence to achieving these

2 standards. But in this situation it's made a little

3 bit more difficult by just the generality of the

4 use, and that's part of the issue we're dealing with

5 nationally with EPA is trying to get these uses to

6 be more specific so you can be more definitive with

7 questions like this. It's just very difficult when

8 there's no specificity other than general aquatic

9 life.

Q. I see. So part of the difficulty in

11 answering my question is the breadth of use that the

12 general use category covers is very broad. That's

13 what you're telling me?

A. It is. And it's not so much that it's

15 broad, that it's just not very well defined.

Q. Okay. Moving on to No. 7. In your

17 2005 report to the U.S. EPA and Illinois EPA which

18 is Exhibit 15, within the general use category, is

19 it correct that you provided several thermal

20 criteria options depending upon which species, which

21 fish species were included or excluded, correct?

A. That's correct.

Q. Can you help us in terms of where do

24 you address that in your report? Just so we can

114

1 give people a reference where in your report they

2 would find that information.

A. The section starting on Page 12 under

4 the subheading summer, average, and maximum

5 criteria.

Q. And the heading below that general

7 use. Is that where that begins?

A. Yes.

Q. Okay. Thank you. Moving on to 7A.

10 Can you explain for us in doing that work, why did

11 you add or remove certain fish species within these

12 various options?

A. Well, it's kind of the equivalent to

14 what I would say is a sensitivity analysis, but it

15 also pertains to some of the degrees of certainty

16 that you might have including certain species, are

17 they really part of the RAS or is there perhaps some

18 uncertainty in a historically degraded water body,

19 it's very difficult to get a historical sense of

20 what its true potential is. Because a lot of times

21 there are not -- there are not good records in these

22 water bodies because of the legacy effects that

23 occur for many, many years. So there may be species

24 at the fringes of this area that may well

115

1 potentially get there if the conditions would ever

2 permit it. And so that's just part of the analysis

3 is to deal with this by adding and removing those

4 that might be viewed as being some uncertainty as to

5 whether they're really part of the system or not or

6 could they be. And just to see what's the effect of

7 adding or removing those to the eventual end point.

8 And there's also, as we explained in the ORSANCO

9 document, that's one of the things about the model

10 is that you can -- there's two input variables that

11 you can -- that you can vary with good reason: One

12 is the RAS membership, and the other one is the

13 specific thermal end points that are plugged into

14 the model for a particular species. And we set it

15 up that way knowing that not all data for all

16 species is necessarily equal, and that if someone

17 came in with a new study or some compelling reason

18 that one of the end points we have in there is maybe

19 not valid for that area, then it could be -- fine,

20 let's remove it and see what the effect is.

Q. But what we're talking about here in

22 terms of why did you add or remove certain species

23 within these various options, that really has to do

24 with the RAS membership issue, correct?

116

A. Some, some. But I think one species

2 we removed was -- I recall it was because it was the

3 most sensitive species, and the next most sensitive

4 species was not very close behind it. So, you know,

5 we were looking at, again, the sensitivity and the

6 outputs and how did that affect.

Q. Well, I think I can help you towards

8 the -- in this paragraph at the bottom of Page 12 it

9 says in about the third sentence, we analyze two

10 subsets of the general use RAS list. One adding

11 yellow perch, walleye, and sauger, and another

12 removing stonecat madtom from the original RAS list.

13 Were you the one making those decisions, what to

14 add, you know, take away, what to add?

A. Well, I was -- Yeah. I eventually

16 made the decision to do that, but I was getting

17 input from primarily from my EPA counterparts.

Q. So that was from Mr. Hammer again?

A. Yes.

Q. Anyone else?

A. Well, I believe indirectly that when

22 Mr. Howe was an employee that he had some input

23 through Ed.

Q. Is that the same Mr. Howe that's been

117

1 asking questions today as just a member of the

2 public?

A. Yes, yes.

Q. Okay. You two worked together on

5 this; is that right?

A. Well, I wouldn't say we worked

7 together, but I mean he did have input through Ed on

8 some of these topics.

Q. I see. And you accepted his input at

10 times?

A. At times.

Q. At times you didn't, correct?

A. Yes.

Q. With respect to the sentence I just

15 read, does that answer the next question of what

16 species did you add?

A. Yes, well, add or remove.

Q. Okay.

A. There is one other variation in here,

20 too, that we -- on Table 2, the first is there's a

21 2004 draft that we had developed prior to updating a

22 lot of input variables as a result of the ORSANCO

23 study.

HEARING OFFICER TIPSORD: Excuse me.

118

Just for the record, that's Table 2 on Page

13.

MR. YODER: Yes.

4 BY MS. FRANZETTI:

Q. Okay. So --

A. So that's really another kind of

7 variant in this process that we were looking at.

Q. That's the first grouping in Table 2,

9 and the next grouping is with the expanded ORSANCO

10 data added, correct?

A. Yes.

Q. But those two used the same RAS list?

A. I believe they do.

Q. And --

A. The only difference is that the

16 original RAS from the 2004 draft relies on the

17 thermal end point data that was prior to the ORSANCO

18 update.

Q. And then the third -- the third group

20 of entries here of thermal criteria are entitled

21 general use RAS 2, and that's where yellow perch,

22 sauger, and walleye get in?

A. Yes.

Q. To the list of species on which you're

119

1 doing your ranking, correct?

A. Correct.

Q. And then in the last one, general use,

4 RAS 3, it removes stonecat madtom from that prior

5 list, but otherwise yellow perch, sauger, and

6 walleye are still in there, correct?

A. Yes.

Q. Mr. Yoder, could I ask you to

9 double-check on something there, and if we may be

10 close to breaking for lunch, you may be able to do

11 it over lunch. Would you please check, I think that

12 perhaps your general use RAS 1 that was the expanded

13 list 2005 with the ORSANCO data already included

14 stonecat madtom when it was not included in the

15 original 2004 list. But if you need some time to

16 check that, that there is, in fact, a difference

17 potentially in those two?

A. That's probably true. Because what

19 happened as a result of the ORSANCO study is we

20 found data for a lot of new species, and, therefore,

21 that would expand -- that could expand the RAS list.

Q. Okay. So a difference between that

23 general use RAS 1 expanded 2005 list and the bottom

24 list of criteria is the first I mentioned includes

120

1 stonecat, the last one I mentioned excludes it,

2 correct?

A. Yes. I think that's right.

Q. And so the difference between those

5 groups of thermal criteria would be based on --

6 solely on the inclusion or exclusion of the one

7 species stonecat, correct?

A. Yeah. The difference between the

9 general use RAS 1 and the general use RAS 3 is

10 essentially due to the removal of stonecat madtom.

11 But RAS 3 also includes yellow perch, walleye, and

12 Sauger, whereas RAS 1 does not.

Q. So you can't tell what the effect is

14 of stonecat on these numbers?

A. Yes. You can tell the effect by

16 comparing RAS 3 and RAS 1. That's the effect of

17 removing stonecat madtom. The addition of yellow

18 perch.

Q. Yes. I'm sorry.

A. -- sauger and walleye really had no

21 impact on the --

Q. I see. Okay.

A. -- actual variables that we use for

24 the summer, average, and maximum.

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Q. Okay. Excuse me.

Mr. Yoder, would you look at,

3 under the first category here in Table 2, general

4 use original RAS 2004 draft. And the survival

5 short-term criteria, which is 88.7 degrees

6 Farenheit. Is that correct?

A. Yes.

Q. And then in the next grouping, the

9 expanded list that did include stonecat, the

10 survival, again, same criteria, survival short term

11 is only 84.2 degrees Farenheit. That's a drop of

12 four and a half degrees. Do you know whether

13 that's -- that significantly lower short-term

14 survival thermal criteria was due to the addition of

15 stonecat?

A. Yeah. That was primarily the impact

17 of that species.

Q. So that, just to underscore how your

19 ranking approach can work, the addition of just that

20 one species dropped the short-term survival which is

21 basically the equivalent of a daily max thermal

22 water quality standard, correct?

A. Yeah. The short term survival is

24 the --

122

Q. Right.

A. -- benchmark for the maximum.

Q. So if I'm trying to derive thermal

4 water quality criteria using your approach, if I

5 don't include stonecat, I would recommend a daily

6 max thermal water quality standard of 88.7 degrees,

7 correct?

A. That's right.

Q. And if I do include stonecat, instead

10 I'm going to recommend a thermal water quality

11 standard of 84.2 degrees, correct?

A. That's correct.

Q. Thank you. Question C of Question 7,

14 would the differences between the daily maximum

15 values calculated with and without those additional

16 species suggest -- and let me limit it to stonecat

17 that we just used as an example. But doesn't that

18 suggest that the fish temperature models you use,

19 that the results are fairly sensitive to the choice

20 of representative aquatic species?

A. In terms of the sur capita (sic.),

22 yes, it can be.

Q. And I would think then that you would

24 agree with the next part of this question, would

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1 this indicate that it is important to ensure that

2 the representative aquatic species selected are, in

3 fact, appropriate for the water body in question,

4 correct?

A. Yeah. I think that's part of the RAS

6 process.

Q. And moving on to D, given the

8 significant effect the data for a single species can

9 make, would you agree that it is important to ensure

10 that the data, and especially data for species that

11 appear to be more sensitive, are adequate and

12 reliable; the data that is used in your fish ranking

13 approach?

A. Yeah. I think that's fair to say.

Q. Do you know for stonecat what data is

16 in your model that you used to come up with this

17 84.2 degrees Farenheit short-term survival, or I'm

18 calling it the daily max number? Do you?

A. Yes.

Q. Okay. Can you describe?

A. It's a -- You mean the specific study

22 that it came from?

Q. Yes.

A. It's from a work done by the Center

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1 For Lake Erie Area Research, and it was a

2 laboratory-based study.

Q. Single test?

A. I'd have to go back and look at the --

5 I don't know how many fish were involved, but it --

Q. Well, before you tell me how many fish

7 were involved, I'll ask that, too. But you're

8 talking about one test, right, one lab?

A. Well, one study, and this wasn't the

10 only species that they tested. They tested a number

11 of species.

Q. I understand. But it's just this one

13 lab doing this study, and they used stonecat,

14 correct?

A. Right.

Q. Okay. And you don't know how many

17 stonecat organisms were even in the study?

A. I'd have to go back and look at the

19 methods they used.

Q. Okay. Well, I would appreciate you

21 doing that. Because we think, although -- well, let

22 me ask you this: Is the stonecat value coming from

23 a study by Reutter and Hurdendorf?

A. Hurdendorf.

125

Q. Hurdendorf. Okay. And I have -- so I

2 have the right study; is that correct?

A. What's the date?

Q. '85 or '86. I'm not sure.

A. Published in?

Q. Well, actually, you need to help us.

7 We're -- that's one of the hard things that we

8 confronted with your report is we can't tell where

9 you're getting your data.

A. Well, it's a reference in the ORSANCO

11 study. That's the base line for this.

Q. Can we go off record?

MS. WILLIAMS: Can we clarify

something for the record. Because he

referred to the ORSANCO study. And I want to

make clear for the record that by the ORSANCO

study he's referring to Exhibit 16.

MS. FRANZETTI: Can we go off the

record?

HEARING OFFICER TIPSORD: Off the

record.

(Off the record.)

23 BY MS. FRANZETTI:

Q. Mr. Yoder, having now looked at -- I

126

1 put in front of you two different studies, and you

2 identified for me that the study that the stonecat

3 data comes from is entitled thermal discharge from a

4 nuclear power plant predicted effects on lake Erie

5 fish. It's the Ohio Journal of Science January

6 1976. Is that correct?

A. Yes.

Q. Okay. Do you recall now, and let me

9 hand this back to you and see -- can you tell me how

10 many stonecat organisms were in that 1976 test?

Mr. Yoder, I've been told that

12 this might be helpful to you. I'm handing you also

13 the -- what may be laboratory data that backs up

14 this test, this study that you've just identified as

15 the source of your stonecat data. And this document

16 is entitled Federal Aid and Sport Fish Restoration

17 Annual Performance Report, July 31, 1975. And it's

18 at the bottom Center for Lake Erie Area Research,

19 the Ohio State University, also dated July 1975.

Since it's taking a little bit,

21 why don't I try to help in terms of just saying,

22 Mr. Yoder, we believe from our review of those

23 documents which, as you've said, are the correct

24 tests, that is the source of your data that you used

127

1 in your ranking approach, that it was a single test

2 using only two organisms. So I'm going to suggest

3 we break for lunch, and if you can take a few

4 minutes you can -- can he hold on to those two

5 documents over the lunch hour and see if you agree

6 that it was a single test using two organisms?

HEARING OFFICER TIPSORD: Before we

break for lunch, we're going to mark those as

Exhibit 17 and 18.

MS. FRANZETTI: Madam Hearing Officer,

those are my consultant's only copies. So

can we -- can we get them copies over the

lunch hour?

HEARING OFFICER TIPSORD: Then we'll

mark them as Exhibit 17 and 18. All right.

We'll mark them after lunch. Let's break for

lunch. One hour, please.

(Lunch break taken.)

HEARING OFFICER TIPSORD: Let's go

back on the record. And when we left for

lunch, we were looking at some reports

Miss Franzetti had shown to the witness,

Mr. Yoder. I want to note for the record

that those reports aren't currently available

128

but will be available later if not by the end

of this week before March.

MS. FRANZETTI: Correct.

HEARING OFFICER TIPSORD: And we'll

just hold off in giving them an exhibit

number until that time. Miss Franzetti, if

you want to continue.

8 BY MS. FRANZETTI:

Q. Mr. Yoder, actually, I don't think we

10 were on the record right at the end of the session

11 when you and I spoke about whether or not you agreed

12 that a single test using two organisms is the basis

13 for the stonecat thermal criteria that is shown in

14 the general use RAS 1 expanded list 2005 survival

15 short-term value of 84.2 degrees Farenheit at

16 Page 13 of your report, Exhibit 15; is that correct?

A. Yes.

Q. Okay. And as the hearing officer

19 stated, we will provide copies of the test report on

20 that test and get them into the record at a later

21 date. I know I'm technically at Question 8 of my

22 questions, but it was brought to my attention during

23 the lunch break that a number of people would

24 appreciate, first, obtaining from Mr. Yoder an

129

1 explanation of the basics of how your model works,

2 Mr. Yoder; and by that I think -- well, I don't

3 think. Would you please explain how your model, as

4 you've termed it, is implemented, the selection of

5 these end points, you know, what each one of them --

6 what its significance is. And then what is the

7 process? How do you go about getting these values

8 that are shown in, for example, Table 2 of your

9 report for a general use designated stream; and,

10 similarly, although I believe the process is the

11 same for --

MS. DIERS: I'll object right there,

Susan. I know it's a compound question. I

know you're trying to lay it all out, but --

MS. FRANZETTI: I'm just trying to be

clear.

MS. DIERS: So I think if we do it one

at a time.

MS. FRANZETTI: No. I don't think his

process changes. I don't want him to --

MS. DIERS: I meant I want you to ask

one question at a time. It seemed to me you

were asking a compound question. I thought I

heard two questions already.

130

HEARING OFFICER TIPSORD: If I may. I

believe that what she's wanting to know is

how his methodology works, and she's trying

to explain what she means by that. So I'm

not sure it's a compound question.

MS. WILLIAMS: Can I ask then -- I

mean we left off on Question 8 on Page 6. It

would seem to me that on the very next page,

Page 7, we start with Subtitle C,

Characteristics of Fish Temperature Model.

Is that the type of questions we're talking

about now? I mean in the interest of wanting

to be sure we get through all these

questions, if we're that close, can we just

start there? Is that the same thing?

MS. FRANZETTI: I'm just going to ask

the same question then. If you'd rather me

wait and go through 8 through 13, that's

fine. I really wasn't -- This wasn't for my

purposes. It was more to help people in the

audience understand what Mr. Yoder did before

I keep asking what are somewhat more specific

questions that assume that understanding,

Miss Williams. So I was simply trying to do

131

something that had been brought to my

attention during the break that might be

helpful to people out there, but I can hold

off for another 20 minutes. I don't have a

strong feeling one way or the other. So if

you object to me posing this question right

now, I'll wait and wait and pose it when I

get to the beginning of Subpart C of my

questions.

HEARING OFFICER TIPSORD: It might

make more sense, because then if anybody has

any follow-up leading to what you have there.

13 BY MS. FRANZETTI:

Q. Fine. Turning then to Question 8,

15 referring to Page 9, Mr. Yoder, of your prefiled

16 testimony, it is stated that, quote, "The modified

17 use designation in my report is designed to

18 represent impounded portions of rivers, similar to

19 the Des Plaines River, and included 27 species."

20 Please explain the meaning of the term, quote,

21 impounded portions of rivers.

A. It would include the part of the river

23 that's affected by the raising the height of the

24 water by the particular dam that's creating the

132

1 impoundment.

Q. Do you remember earlier this morning

3 we created a geographical definition of Upper

4 Dresden Pool?

A. Yes.

Q. With the southern boundary being the

7 I55 bridge, correct?

A. Yes.

Q. Is that what you mean -- Does that

10 fall within your phrase, "impounded portions of

11 rivers"?

A. Parts of it I believe do, yes.

Q. Which parts?

A. Well, I'm not certain of the upstream

15 extent of the impoundment directly, but my

16 understanding is that it includes the section from

17 I55 up the stream to -- not all the way because

18 there's a tailwater that's not part of that

19 impoundment.

Q. All right. So other than the Brandon

21 tailwater, is all the rest of Upper Dresden Pool --

A. That's my understanding.

Q. I'm sorry. I didn't finish. Is all

24 the rest of Upper Dresden Pool included within your

133

1 intended meaning of the term impounded portion of

2 rivers?

A. Yeah. I'm -- Again, I'm not familiar

4 with the exact boundaries of how far the impoundment

5 goes upstream. It's my understanding it goes almost

6 to the Brandon tailwater.

Q. All right. Do you know, moving on to

8 C, do you know whether any other portions of the

9 lower Des Plaines River that are at issue in this

10 rulemaking, in your opinion, fall within the

11 intended meaning of an impounded portion of a river?

A. Well, does that include the Brandon

13 pool?

Q. Yes. That is in this rulemaking.

A. Yeah. That's an impoundment.

Q. Okay. How does this -- I'm sorry. I

17 need to come back to the -- How does your modified

18 use designation, in your report, compare to Ohio's

19 use classification known as, quote, modified, comma,

20 impounded, end quote, waters?

A. It would be the same as.

Q. They're the same?

A. Mm-hmm.

Q. Okay.

134

A. Yes.

Q. So can you describe for us the Ohio

3 category of use designation known as modified

4 impounded, basically what it's application is and

5 rationale?

A. In Ohio it is -- It's a codified use

7 designation tier, and it is intended to reflect

8 riverine habitats that are modified by the -- by

9 what we call run of river low end dams. And so

10 it -- That's the first step. And if we find that

11 those sections are not attaining warm water habitat

12 biological criteria, then it becomes something that

13 needs to be evaluated as the impoundment itself

14 contributing to that such that it might be

15 redesignated through UAA. That's the way it works

16 in Ohio.

Q. I'm not sure I fully understood your

18 answer. In terms of what waters go into Ohio's

19 modified impounded use designation or

20 classification, is it only those waters for which a

21 UAA finds that they meet one or more of the six

22 factors in the UAA regulation?

A. Yes.

Q. Your colleague, Mr. Rankin, in his

135

1 report that is Attachment R to the Illinois EPA

2 Statement of Reasons. He states in Attachment R

3 that if the Upper Dresden Pool were located in Ohio,

4 the appropriate classification for the river, for

5 this part of the river, would be modified impounded.

6 Do you agree with your colleague's finding in that

7 regard?

A. What page does that appear on?

Q. Hang on.

MR. SULSKI: Is this a follow-up

question or a question?

MS. FRANZETTI: It's a follow-up,

that's why I don't have a page.

14 BY MS. FRANZETTI:

Q. Mr. Yoder, I don't think there are

16 page numbers on Attachment R, but if you could go

17 to -- on mine it's the fifth page in from the back,

18 and it's the page that contains the heading

19 conclusions. And if you want to read the section

20 from the top of that page, Des Plaines River

21 Recommended Category MWH-I other is the heading I'm

22 referring to. And, again, towards the end of that

23 section it says based on the preliminary data we

24 collected, we suggest that the Ohio modified warm

136

1 water habitat use for impounded rivers, MWH-I or

2 Roman I, would be most appropriate -- would be most

3 appropriate category. The uppermost site at habitat

4 quality generally associated with a MWH river;

5 however, the isolation of this site among impounded

6 reaches could influence the potential of that site.

7 And you may not have an opinion. I thought you

8 would be familiar with your colleague's work on the

9 Upper Dresden Pool. So that's why I'm asking the

10 question as to whether you agree, since we're on

11 this topic of modified use, you used modified use,

12 you referred to it as applicable to the Upper

13 Dresden Pool. So I'm really just asking the last

14 question of then you also -- you agree with your

15 colleague, Mr. Rankin, that if the Upper Dresden

16 Pool were located in Ohio?

A. I really haven't had enough time to

18 form an opinion.

Q. Okay. I recognize -- I'm moving to

20 Question No. 9. And I recognize that you were --

21 You've stated you were not asked to propose specific

22 thermal criteria for the lower Des Plaines River,

23 but hypothetically if you had been asked to do so,

24 would your approach differ from the approach used in

137

1 your report, and, if so, how?

MS. WILLIAMS: So you're not asking if

his approach would be different than the one

the Agency took, but if it would be different

than the one in his report?

MS. FRANZETTI: I'm basically asking

him is this the approach he would use to set,

if he were --

MS. WILLIAMS: His report.

MS. FRANZETTI: If he was deriving

thermal criteria for the lower Des Plaines,

is this the approach he would use.

MR. YODER: Yes.

14 BY MS. FRANZETTI:

Q. And with -- Moving on to No. 10. In

16 Ohio, do intolerant fish species typically thrive,

17 and by that we mean reproduce, in modified impounded

18 use waterways?

A. I would say not typically, but there

20 are exceptions.

Q. Moving on to No. 11. What would be

22 the habitat requirements for the species that

23 comprise the aquatic community you have identified

24 in your report as representative of the modified use

138

1 you considered for the lower Des Plaines River?

A. Well, it's -- The list of these

3 species are what we would call intermediate to

4 moderately tolerant to tolerant of a wide range of

5 habitat conditions.

Q. And I'm sorry. Most of these are

7 species that you'd characterize as intermediately

8 tolerant and --

A. Moderately tolerant and highly

10 tolerant of a wide range of habitat conditions.

Q. Okay.

HEARING OFFICER TIPSORD: Even with

the microphone you need to maybe turn it

towards you a little bit more. Thank you.

15 BY MS. FRANZETTI:

Q. And, just to finish up, on the third

17 type of use designation that you used in your

18 report, could you describe the type of water body to

19 which your secondary contact use category was

20 intended to apply?

A. Yes. Only to water bodies that have

22 been, I would say, severely modified and which

23 really lack really any type of habitat availability,

24 only the most highly tolerant species.

139

Q. Do you have any opinion as to what

2 portions of the lower Des Plaines or the Chicago

3 area waterway system, the CAWS, fit your category of

4 secondary contact waters? I know you've never been

5 out there, but do you have any opinion?

A. No. I haven't really looked at it.

Q. Are you familiar, though, have you --

8 I guess the question on the Chicago Sanitary Ship

9 Canal. Have you seen it at all? I know you didn't

10 go out and do field studies, but have you seen that

11 portion of this UAA?

A. I've seen portions of it. I've

13 actually been on the river and I have --

Q. Okay. So you've been on some sort of

15 boat on the Chicago Sanitary and Ship Canal,

16 correct?

A. Yes.

Q. All right. From observing it, can you

19 tell me whether or not you think it falls within the

20 secondary contact use designation?

A. No.

Q. Why not? What more do you need to

23 know?

A. It just needs to be a lot more careful

140

1 analysis.

Q. Looking at?

A. Data.

Q. Data about?

A. Habitat, biological quality, water

6 quality.

Q. Okay. So if I tell you --

A. Over the -- a sufficient area of the

9 system.

Q. So if I tell you that it's basically

11 cement wall for most of its part, steep slopes, you

12 need more information than that to have an opinion?

A. I think anything I'd render based on

14 that would be what I would call anecdotal.

Q. Okay. Now we're at characteristics of

16 the fish temperature model, Mr. Yoder, and maybe

17 I'll help instead of asking just the big broad

18 question about how does this ranking approach work.

19 Let me try to break it down. With respect to you

20 already mentioned you take representative aquatic

21 species, and depending upon the use designation you

22 are trying to derive your thermal criteria for, you

23 select certain species, correct?

A. Okay. I'm sorry. I was reading the

141

1 first question.

Q. We're not doing that question.

A. I'm sorry. I apologize.

Q. I'm trying -- I'm going back to the

5 part that I got my hand slapped on.

MS. WILLIAMS: I'm fine to be flexible

now that we're in that section. I feel much

better now that we've made it there.

MS. FRANZETTI: That's what I want.

10 BY MS. FRANZETTI:

Q. With respect to the resident aquatic

12 species -- what I'm trying to -- Let me say it

13 another way.

Is that Step 1 in your approach?

15 Define what fish are going to be on your RAS list

16 for the particular use that you're trying to derive

17 thermal criteria for, correct?

A. Yes. The selection of the RAS

19 membership, yes, that's one of the first steps.

Q. Right. So Mr. Yoder -- And for this

21 you may want your report handy. In your report, if

22 I go to Table 1, Page 9, and it carries over to

23 Page 10. This was the universe of fish species from

24 which you selected your RAS list for the three

142

1 designated use options for which you were deriving

2 thermal criteria, correct?

A. Yes.

Q. Okay. So now let's -- And if -- Let

5 me stop. It really doesn't make any difference if

6 I'm going to have you explain how your approach

7 works which one of the three uses I use or you

8 select as an example to use, correct? The approach

9 works the same way within each of the uses?

A. Yes.

Q. Okay. So let's take modified use,

12 okay? For modified use, you now, from Table 1,

13 select some of the species listed on Table 1,

14 correct?

A. For the modified use, yes.

Q. Okay. And if we go to -- If we all

17 want to know which species from that list did you

18 use to derive your thermal criteria for modified use

19 category, where do I find the list of those species,

20 the names, the names?

A. It's in this table.

Q. In Table --

A. All 27 species were plugged into the

24 fish temperature model.

143

Q. I'm sorry. Yes. So you look at the

2 column in Table 1 that's entitled modified use, and

3 if there's an X under that, in that column, that

4 species was used to derive your thermal criteria for

5 modified use?

A. Yes.

Q. Okay. Same applies then for general

8 use. There's an X there. That was one of the RAS

9 species for general use?

A. Yes.

Q. And same obviously for secondary

12 contact. And would it be correct then just to

13 finish up on step one, obviously as we go down, as

14 we're decreasing the level of the use designation,

15 and that would be from general to modified, to

16 secondary contact, the number of species that you

17 used to derive your thermal criteria declines?

A. Yes.

Q. With respect to modified use, you use

20 a total of 27 species, and that number is found at

21 the bottom of the column entitled modified use,

22 right?

A. Yes.

Q. And, by contrast, for the secondary

144

1 contact, thermal criteria, you only used eight

2 species, right?

A. Yes.

Q. All right. So now we have, staying

5 with modified use as our example in those 27

6 species, you then start gathering, looking for

7 literature data for certain what are termed thermal

8 end points, correct?

A. Well, that's already been done at this

10 point.

Q. Is that your data base?

A. Yes.

Q. Okay. So all -- So all that

14 literature data has already been entered into a data

15 base?

A. Yes.

Q. And that's your data base? In other

18 words, is that proprietary? Like you're the only

19 one who's got it?

A. No. It's the same database that we

21 developed for ORSANCO.

Q. So it's ORSANCO's data base?

A. Yeah. We did it for that project. We

24 also consider it --

145

Q. I'm just trying to establish on the

2 record, can I go into the data base?

A. You could get a copy of it and do

4 that, sure.

Q. Okay. For free?

A. We are a nonprofit organization.

Q. Okay. So that's an electronic data

8 base. You accessed that. To collect data for the

9 particular thermal end points that you use in your

10 ranking approach for these species, for these 27?

A. The thermal end points are already

12 plugged into the data base, the electronic data

13 base. I think the electronic data base right now

14 contains -- It's almost 100 species.

Q. Okay.

A. That we have plugged in those four end

17 points. And then it's simply a matter of selecting

18 those species that you consider to be represented.

19 So we select those 27 species and ask the model to

20 run, and it would produce the tables or the values

21 that you see in table two. It produces a report --

Q. Well, does it really produce Table 2?

23 I mean isn't there a step before -- And, actually,

24 not to confuse everybody, it's Table 3, isn't it,

146

1 that's modified use?

A. Oh, yeah. Okay. But -- I apologize.

3 Yes. It would produce the same numbers in Table 3.

Q. Okay. I think I miss -- I thought

5 there was a step before Table 3 where you would see

6 the list of all the species, the 27, and across it

7 would be the end points so I could see what all the

8 individual values were for each species underneath

9 each of the four thermal end points. No? Doesn't

10 that exist?

A. Yeah. These are the -- The appendix

12 tables to this report contain those.

Q. Okay. Point us -- Can you point us to

14 either an example -- I mean you guide us as to can

15 you cite an appendix to show us what I'm talking

16 about?

A. Let's look at Page 66. I'm sorry.

18 Page 64. We're going to have to necessarily jump

19 around a little bit here.

Q. Absolutely.

A. Let's start with Page 64. What that

22 is is a -- Those are the species that were selected

23 as RAS for this particular trial.

Q. Yes.

147

A. We call them trials. And we read up

2 here that these are thermal thresholds for modified

3 use RAS 2 list. Okay. So that would correspond

4 to --

Q. Table 3?

A. Well, part of Table 3.

Q. Okay.

A. It would be one of the options.

Q. Right.

A. In Table 3. So that's just a summary

11 of the species that were selected. If you flip to

12 Page 65, the table you see that has the percentiles,

13 that is what goes into Table 3, but that's produced

14 by the model by selecting these species.

Q. And would you give -- use -- well,

16 let's -- Can we stop right there?

On this appendix Table 1F, there

18 are the three headings -- I'm sorry -- the four

19 column headings for the thermal end points. Why

20 don't we take a moment, I know it's in your

21 testimony and report, Mr. Yoder, but just for the

22 benefit of those who are kind of learning this for

23 the first time or hearing it for the first time,

24 would you explain first what is the significance or

148

1 what is captured by the thermal end point called

2 optimum?

A. Optimum would include, well,

4 experimental end points that would regard that as

5 either a physiological or behavioral optimum

6 temperature that that species would like to have.

Q. For all purposes, you know, for

8 growing, for spawning, for --

A. Not necessarily for -- it could be --

10 It's usually growth, reproduction, or something

11 called a final preferendum, which is, given the

12 opportunity, it's the temperature that the majority

13 of the test population will congregate.

Q. Next column heading, the thermal end

15 point MWAT, all caps, growth?

A. That is -- MWAT stands for mean weekly

17 average temperature for growth. This is a

18 calculated end point that's based on the U.S. EPA

19 methodology, and it's developed in 1976. And it

20 is -- It's not directly a measured growth end point.

21 It's a, based on what they knew about the

22 relationship where growth could tolerably occur

23 somewhere between the legal temperature and the

24 optimum temperature that there's an equation that

149

1 you could use that will calculate that. And what

2 it's thought is this is a reasonable temperature

3 which the species would still be able to grow and

4 thrive. It's not necessarily the optimum growth,

5 but it's more of a tolerable growth. That's the

6 assumption. So it is a calculated value.

Q. Fish might not get to six feet tall

8 but might get to five foot eight?

A. Or five eleven and a half.

Q. Oh, okay. All right. Upper avoidance

11 thermal end point. What is that measuring?

A. That's a behavioral end point, and

13 that's the temperature at which fish exhibit an

14 avoidance. That's where they start to, if you plot

15 distributions of the current, either, you know, in

16 the lab environment or in the field, if it's

17 properly conducted, that's the point where their

18 abundance just really starts to precipitously drop

19 off. And, again, given the opportunity to select a

20 whole host of temperatures, a wide range of

21 temperatures. So that's what that is. It's

22 important to know that because of the tendency for

23 fish to avoid temperatures below those that kill

24 them.

150

Q. Okay. Moving to the next column for

2 the last thermal end point UILT. Please explain

3 that thermal end point.

A. That is an acute end point. It is --

5 It's derived in the laboratory. It's called the

6 upper incipient lethal temperature, and that's a

7 laboratory derived end point of -- There's also

8 another term called an ultimate upper incipient

9 lethal temperature. We chose -- it's based on what

10 the organism is acclimated to before it's subjected

11 to the lethal temperature.

Q. Okay. Now, I think that was the first

13 time in explaining the end point that you used the

14 phrase laboratory derived end point. Could you just

15 explain what you mean by that? Is this end point a

16 little different in that regard from the other

17 three?

A. Potentially. Although the others, the

19 upper avoidance and the optimum can also be defined

20 in laboratory, but they can also be defined in the

21 field.

Q. Okay.

A. It's --

Q. It's not unique to the --

151

A. It's a little difficult to get an

2 upper incipient lethal temperature via field

3 observations because fish will avoid -- unless

4 you've got them in a highly constrained artificial

5 environment. So it's almost inherently a laboratory

6 technique to find out at what temperature does a

7 fish die.

Q. Okay. And that's basically what

9 that's telling us, at what temperature does a fish

10 die, the UILT?

A. Yes. At a given what's called an

12 acclimation temperature.

Q. Why don't you explain acclimation

14 temperature.

A. Well, being what's collectively termed

16 as a cold-blooded organism, they are subject to the

17 ambient environment, and they can acclimate to

18 temperatures either going up or going down. And if

19 you acclimate fish to higher and higher

20 temperatures, their lethal end point will go up, but

21 only to a certain point. And that's what's called

22 an ultimate upper incipient lethal is where you

23 cannot acclimate the fish to any higher temperature.

24 It dies regardless of its acclimation at this higher

152

1 temperature.

Q. And that's what's in this column?

A. Yes. That's pretty much what's in

4 that column.

Q. Okay. Now go back to where you were

6 referring to flipping over to page, part of this

7 table that's -- well, no, it's actually a separate

8 table. I'm sorry. On Page 65, Appendix Table 2F.

9 And let's use the very first thermal criteria value

10 there under optimum category at 100 percent, and I'm

11 going to get to it in a minute to explain what the

12 percentages are. There's a value of 21.8 or 80.

13 How -- Where did us that value come from out of

14 the -- how to we wind up with 21.8 optimum from the

15 values under the optimum column on the prior

16 appendix Table 1F we were just describing?

A. What those percentages mean is what

18 percent of the RAS fall with -- entirely within that

19 category. So --

Q. Another way would be are protected by

21 that value?

A. I guess you could say that, yes.

Q. Okay.

A. So for 100 percent of the, in this

153

1 case, the 26 RAS, because we're excluding one of

2 them from the original list, it's one of the

3 options.

Q. We're excluding the golden red horse,

5 right? I think it's right up there.

A. Right. Otherwise it would be 27.

Q. Okay.

A. So what we're saying is that for 100

9 percent of this 26 species, for the temperature to

10 be at or below the optimum, it has to be 21.8

11 degrees.

Q. Right. But you get that -- Let me try

13 and be more specific. You get the 21.8 by going

14 down the optimum column of Appendix Table 1F to find

15 the lowest number, correct?

A. Right.

Q. And the lowest number in that column

18 was 21.8, and it happened to be for northern pike,

19 correct?

A. Correct.

Q. Okay. And you do the same thing then

22 as you go down. At least under the 100 percent

23 column, you do the same thing for each of those end

24 points: Growth, now growth we get that from the

154

1 MWAT growth column?

A. Yes.

Q. All right. With respect to avoidance,

4 paren, UAT, that's from the column on Table 1F

5 entitled upper avoidance?

A. Correct.

Q. Now, the next one you're probably

8 going to have to explain a little bit further

9 because we have two more categories, but we only

10 have one column left on Table 1F, the UILT. So can

11 you explain how staying still with the 100 percent

12 column, where did you get -- how did you derive the

13 survival, and I think LT is long term?

A. Yes.

Q. How do you derive that 29.5?

A. Well, the short-term survival is the

17 UILT. The long-term survival is simply the

18 short-term survival minus the 2 degree centigrade

19 safety factor.

Q. Okay. So I should have started with

21 survival short term. You take survival short term,

22 we go to that same exercise we did for the other

23 three end points. I just look down the column on

24 Table 1F to find the lowest number, and that's when

155

1 I put in here for short-term survival, that's where

2 I get 931.5, correct?

A. Yes.

Q. And then to get the long-term

5 survival, I just deduct 2 degrees off that number?

A. Yes.

Q. Okay.

HEARING OFFICER TIPSORD: Mr. Safley,

you have a follow-up?

MR. SAFLEY: If you don't mind, I want

to ask a question. Tom Safley on behalf of

the Illinois Environmental Regulatory Group.

Mr. Yoder, I wanted to ask you a question

about the optimum growth or the optimum

category or column. In looking at these

tables, we have the optimum listed as 21.8

degrees; is that correct?

HEARING OFFICER TIPSORD: That's Table

2F?

MR. SAFLEY: Yes. On Table 2F. In

the 100 percent column, pardon me. The

optimum is 21.8 degrees?

MR. YODER: Yes.

MR. SAFLEY: And that is if I'm right

156

looking at Table 3F, that is because northern

pike's optimum centigrade temperature is 21.8

degrees.

MR. YODER: Yes.

MR. SAFLEY: And you stated that

optimum is meant to represent the temperature

at which that species of fish would most

prefer to congregate.

MR. YODER: Yes. That's one of the

measures that we relied on.

MR. SAFLEY: One of the measures you

relied on to determine optimum temperatures

for these fish?

MR. YODER: Yes.

MR. SAFLEY: What other measures did

you rely on?

MR. YODER: For some species, because

the -- all of these end points are not

available for every species. It's very

patchy, what's out there. So for something

like optimum, I believe, and I'd have to

refer to my baseline document, but I believe

we included things like optimum for growth or

other physiological processes, that type of

157

thing. But a lot of the data does include a

sort of a what's called the final preferendum

which is where given the choice where the

fish would like to be.

MS. WILLIAMS: Mr. Yoder -- I'm sorry,

Tom. I just wanted to clarify for the

record. When you say your baseline document,

are you referring to what's been entered into

the record as Exhibit 16, the ORSANCO report.

MR. YODER: Yes.

MR. SAFLEY: So when you say is that

preferendum where the -- that species would

prefer to congregate, do you mean both the

species would prefer that the water not be

warmer than that and the species would prefer

that the water not be cooler than that

temperature?

MR. YODER: Well, it just happens to

be where they go, and the assumption is that

where most of them go is where most of them

like to be.

MR. SAFLEY: Right, right. And so if

they were in an area where the water was five

degrees warmer than that and they would be --

158

and they could get to another area that was

at that 21.8 degrees, that's what you would

expect them to do is move from the higher

temperature water to the lower temperature?

MR. YODER: That's what the data

suggest.

MR. SAFLEY: I want to make sure I

understand how this works. Conversely, if

they were in water that was a temperature

instead of five degrees warmer five degrees

cooler, you would expect them to come from

that five degree cooler water to the water

that, in that instance, would be at a higher

temperature of 21.8 degrees. It works both

from --

MR. YODER: It can work both ways.

MR. SAFLEY: That's what I was trying

to understand. So if you look then at the

entire universe of fish, which is included on

Appendix Table 3F, that optimum temperature

for northern pike would be 21.8 degrees, but

if you go all the way down Appendix Table 3F,

the optimum temperature for common carp which

was on Page 66 would be 31.5 degrees; is that

159

correct?

MR. YODER: That's right.

MR. SAFLEY: So for the group of fish

you have almost a ten degree range that

covers all of -- the optimum temperatures for

all of those different species?

MR. YODER: That's correct.

MR. SAFLEY: Is there -- Is there a

step in the process or is there an exercise

that's done with this information to try to

figure out what the optimum temperature is

for the majority of the species? I don't

know if average is the right way to say it,

or is that something that would be possible

to do or is there any usefulness to that?

MR. YODER: I'm not sure what that is

without giving it more thought. But I mean

you can look at the 50th percentile and,

that's where half the fish congregate. So

that's 28.2 degrees in this case.

MR. SAFLEY: So 21.8 just, is my last

question, is not that number. That's the

fish with the lowest temperature at optimum,

that's when you plug that number in and the

160

rest of the fish in this group have a higher

optimum temperature?

MR. YODER: That's correct.

MR. SAFLEY: Thank you.

HEARING OFFICER TIPSORD: Miss Dexter

has a follow-up.

MS. DEXTER: You said that you use a

few different end points for -- to call

optimum. Do you have a preference of like --

or not -- preference is hard to use here. Do

you sort of prioritize or do you -- if you

have a final preferendum do you use the final

preferendum and then if you don't you look to

something else, or is it --

MR. YODER: As I recall that, I think

that's the way we did it was to use that

first, and then if that was lacking to use

something else like a physiological end point

which really there aren't that many of.

MS. DEXTER: Thanks.

161

HEARING OFFICER TIPSORD: Miss Franzetti?

2 BY MS. FRANZETTI:

Q. Mr. Yoder, then just to complete it,

4 if we go back to Table 3 at Page 14 on your report,

5 Exhibit 15 for the modified use category. And if

6 we, I think we were, because we were using Appendix

7 Table 1F that excludes golden red horse, we'd be in

8 your modified use RAS 2 excludes golden red horse

9 portion of that Table 3. So if we look at under,

10 staying again under 100 percent protection where

11 we're protecting the most sensitive of all the

12 species, 100 percent of them, the optimum value

13 there is, in Celsius, the 21.8. And we know if we

14 go back to 1F we got that value from northern pike

15 being the most sensitive of your 26 RAS species for

16 the optimum end point, correct?

A. Correct.

Q. But that's what we have to do to

19 understand what species is driving these numbers

20 under the 100 percent column, is we really have to

21 go back to your underlying appendix. You can't tell

22 from looking at this table what species determined

23 that value, correct?

A. That's correct.

162

Q. Okay. And then, again, just moving

2 across, of those 26 species, if I move across to the

3 90 percent, if I'm going to use a 90 percent, what

4 do you call it? Is it a --

A. Percentile.

Q. But what's it -- it's 90 percent of

7 the 26 fish species?

A. Yes.

Q. Okay. At the 90 percent level, that

10 value goes up to 23.9 degrees Celsius, 75 degrees

11 Farenheit, correct?

A. I'm sorry. Which value again?

Q. I just want to make, I'm staying with

14 optimum, but now I just want to go over to the 90

15 percent column?

HEARING OFFICER TIPSORD: Still on

Table 3 Page 4.

MR. YODER: Yes. It goes --

19 BY MS. FRANZETTI:

Q. So I'm protecting 90 percent of the 26

21 species, so to speak?

A. Yes.

Q. Is that what that means?

A. Yes.

163

Q. Okay. Now, just briefly back on your

2 UILT end point, do you know are the fish used in the

3 UILT studies that you have in your data base and you

4 get these values from, are they wild caught or are

5 they cultured in the lab?

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

7 Some are brought in from the field and some are

8 cultured.

Q. All right. That's -- You don't screen

10 out studies that are accepted into the data base

11 based on whether they're wild caught or they're

12 cultured in the lab?

A. No.

Q. All right.

A. We do make a notation as to what the

16 source -- we categorize the studies, but we don't

17 use that as a means test, I guess.

Q. Now, staying with either Table 3, or

19 if it -- if it's applicable, Appendix Table 1F, for

20 the most stringent UILT value that protects

21 100 percent at the short-term basis, which is 31.5

22 degrees Celsius, how do I figure out whether that's

23 based on a fish that was cultured in the lab or was

24 caught out in nature?

164

A. You first have to know which species

2 it was.

Q. Well, I can figure that out, right,

4 from just going up and looking at who had 31.5 and

5 that was the common -- common carp, wasn't it? Oh,

6 white sucker. Sorry. Oh, I'm in the wrong table.

7 White sucker.

So first I do that, all right. I

9 have to know where the 31.5 came from. It came from

10 white sucker. Now, how do I figure out what

11 literature study, what lab study generated that

12 31.5?

A. Besides asking me to help you with

14 that, I would have to go look at the compendium of

15 all the thermal data that is part of the Exhibit 16

16 and determine which study or studies that that

17 particular input variable was based on.

Q. And there's no cross-referencing in

19 here. I mean, well, let me ask you this: You go to

20 there, that compendium you just referenced, and how

21 do you find it in there?

A. I go to the --

Q. What are you looking for to identify

24 it as the one where you got -- where this value came

165

1 from?

A. I look for that species, and then I

3 look for the compilation of the different end points

4 that we derive from the literature search, and then

5 I can roughly determine which study or set of

6 studies that that particular end point that got put

7 in the model was derived from.

Q. So if I asked you to identify for me

9 which species -- what lab report or study is the

10 basis for the values in Table 3 for each of these

11 end points under the 100 percent column, that would

12 take you -- that would take you a while to do,

13 correct? You couldn't -- you could not give me that

14 information as you sit here?

A. Not with 100 percent confidence. I'd

16 have to go back and look at actually how that was

17 done.

Q. One more question on the UILT test

19 results that are included in your data base. Do

20 they only use fish of a certain age or size?

A. This is generally speaking, lab

22 studies are almost necessarily based on using,

23 especially for larger species, based on using

24 juvenile life stages or younger.

166

Q. Juvenile or younger. I forget the

2 term for the first year born.

A. Larva or young of year.

Q. Young of year. Okay. So it's at

5 least no longer than juveniles typically, and it can

6 be even younger that are used?

A. It can be larval survivors.

Q. All right. Okay. Back to the

9 numbered, prefiled questions here under

10 characteristics of fish temperature model.

Question No. 1, explain how the

12 approach you use to derive thermal standards

13 constitutes a quote, unquote, model as it is termed

14 given that it does not appear to employ any modeling

15 mathematical equations, and other characteristics

16 typical of the usual meaning of a technical model?

A. Well, there's a lot of definitions

18 that what a model is. And seeing that this is

19 taking a part of the whole and simulating it, then

20 it definitely fits what a model is, and that's what

21 this is doing. This is taking information from a

22 part of a whole system and applying what we know

23 about that part and then assuming that it represents

24 the whole system. And that's the essence of

167

1 modeling.

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

3 want to finish?

A. Well, and the mathematical

5 manipulations doesn't include a computer program

6 that does this. We had to write a program to make

7 this work.

Q. So that your program could rank the

9 thermal values from --

A. Yes.

Q. -- highest to lowest, that you needed

12 to do a computer model to accomplish that? I'm

13 sorry. Is that what you meant?

A. A computer program.

Q. A computer program to do that, okay.

16 I'm sorry. I kind of thought Excel basically did

17 that. With respect to referring to it as a model is

18 my Question No. 2, would it be more accurate to

19 describe it as a ranking of fish species from most

20 to least sensitive based on basic thermal end

21 points?

A. Well, I agree with you that's what it

23 does. It does rank species, organizes them from

24 most sensitive to most tolerant. But in the sense

168

1 of what it is attempting to do, it is a model.

Q. And the attempting to do part is to

3 use this data to predict, to project out into the

4 real world what's going to happen; is that right?

A. Yes. It's the essence of a model.

Q. Okay. No. 3 under this ranking

7 approach, is it correct that once the fish species

8 have been ranked for a particular end point such as

9 upper lethal temperature, the proposed thermal

10 standard is taken from the temperature that the

11 literature data predict will be protective of the

12 fish species deemed the most sensitive; i.e., that

13 is at the top of your ranking list?

A. That's true for part, especially for

15 the short-term survival part.

Q. I'm sorry. Did you want to add more

17 or can I go on?

A. Go ahead.

Q. Okay. No. 4, under this ranking

20 approach, is it only the literature -- I'm sorry.

21 Is it only the literature data for the top-ranked

22 species that are used to determine the numerical

23 temperature limit that becomes the proposed water

24 quality standard?

169

A. I'm assuming what you mean by

2 top-ranked species is, again, the most sensitive

3 species.

Q. Right.

A. Yes. That's what's, and that is,

6 again, based on which option RAS and other option

7 that you're looking at.

Q. Now, can you tell me -- Can you

9 explain whether, and if so how, this approach is

10 consistent with the 1985 U.S. EPA guidelines we're

11 talking about earlier today?

A. I'm not sure I can really comment on

13 that. My understanding is that the most sensitive

14 species, it has that in common.

Q. What does it have in common?

A. That the '85 guidelines for deriving

17 water credit criteria in general will target the

18 most sensitive RAS for that particular parameter

19 based on literature values.

Q. One hundred percent of the time?

A. Well, that's an interesting concept,

22 because in terms of the RAS I believe it's 100

23 percent, but EPA claims it really represents, at

24 best, 95 percent of what's really there.

170

Q. EPA's claim -- do you mean EPA's claim

2 of what your data represents?

A. No, what their method represents.

Q. Their method. You mean --

A. The '85 guidelines.

Q. The '85 guidelines in that regard are

7 not consistent with your approach, correct?

A. Well, I'm not entirely sure.

Q. Oh, all right. Well, you don't know.

10 That's fine. But it's correct that the U.S. EPA

11 guidelines say you are shooting for a 95 percent

12 protection level, correct? If you know?

A. Well, that's my understanding of it.

Q. That's mine, too. And your approach

15 is basically advocating 100 percent protection of

16 the most sensitive species 100 percent of the time,

17 correct?

A. I need to qualify my answer for a

19 minute.

Q. All right.

A. Because what is happening is we're

22 saying 100 percent of the RAS. What we are never

23 certain of, does it protect 100 percent of what's

24 really there?

171

Q. I understand. But based on your

2 approach to deriving standards, which is also what

3 the 1985 U.S. EPA guidelines are doing, your

4 approach is you set the standard based on 100

5 percent protection 100 percent of the time for the

6 most sensitive species.

A. One hundred percent of the RAS.

Q. Right. Okay.

MS. WILLIAMS: Can we just clarify?

So we're talking about the 1985 U.S. EPA

guidance. Does that guidance cover

temperature in particular or is that designed

to --

MR. YODER: Not that I'm aware of.

MS. WILLIAMS: It's a general guidance

for --

MR. YODER: It's mostly dealing

with toxic parameters.

HEARING OFFICER TIPSORD: Mr. Howe?

MR. HOWE: Mr. Yoder, do you know if

that guidance document also emphasizes that

you should protect recreationally important

species.

MR. YODER: I'm not sure, Pete. I'm

172

just not that familiar with it. I mean I

know it's a concept that's imbedded and it's

Water Quality Criteria 101 you protect those.

MR. HOWE: Thank you.

5 BY MS. FRANZETTI:

Q. Moving on, Question 5. Is it fair to

7 say that for purposes of calculating the daily

8 maximum and period average thermal water quality

9 standard, none of the literature values collected

10 for species other than the top-ranked species, in

11 other words, the most sensitive on your list, is

12 taken into account?

A. No. It's not fair to say that.

Q. Okay. Tell me how that's not fair.

A. Can I point to Exhibit 15, Page 12,

16 methodology also specifies what the average and what

17 the daily max should be consistent with. It's

18 averages should be consistent with 100 percent

19 long-term survival of all representative subspecies.

No. 2, growth of commercially

21 or recreationally important fish species.

No. 3, growth of at least 50

23 percent of the nongame fish species.

No. 4, 100 percent long-term

173

1 survival of all endangered fish species.

And, No. 5, the observed

3 historic ambient temperature record. Daily maximum

4 should be consistent with, No. 1, 100 percent

5 short-term survival of all representative fish

6 species and the observed historical ambient

7 temperature record.

Q. All right. Stay with daily maximum

9 there for a moment from what you were reading on

10 Page 12. So, No. 1 there, the 100 percent

11 short-term survival of all representative fish

12 species. That part is consistent with what my

13 question asked, that none -- for that, none of the

14 literature values collected for species other than

15 the top-ranked species is going to be taken into

16 account, correct?

A. No. That's correct.

Q. Then I don't understand what that

19 means. I thought that that was your 100 percent.

A. I did say you're correct.

Q. Oh, I'm sorry. I thought you said no.

Okay. What's the second

23 factor there for what you're -- what the daily

24 maximum standard, thermal standard, should be

174

1 consistent with? The observed historical ambient

2 temperature record. What's that mean?

A. Well, you have to be aware of for that

4 water body what the historical ambient temperature

5 is in that water body to avoid the conundrum of

6 setting criterion that's going to be frequently

7 exceeded naturally by natural conditions.

Q. Are you -- can you tell me for the

9 Upper Dresden Pool how I would apply this factor,

10 how -- where would I -- what am I -- what data am I

11 looking for here, the -- when you refer to the

12 observed historical ambient temperature record?

A. It's difficult construct in modified

14 water bodies.

Q. Why?

A. Because it should be -- Because the

17 modifications could influence measured temperatures

18 in that water body, and they might be unnatural

19 temperature occurrences. So what it means is you

20 need to be mindful of when you recommend daily

21 maxes, that they have some semblance in what

22 naturally occurs or what could naturally occur in

23 that water body. And, again, it's just to avoid the

24 very simple issue of setting a criterion that's

175

1 going to be too frequently exceeded and trigger

2 other regulatory implications perhaps.

Q. I didn't appreciate that when I read

4 your report. So I want to follow up on that and

5 make sure I understand it now.

So you do take into account in

7 setting the standard what's going on out there in

8 the stream, correct, in this factor? That's what

9 you're doing.

A. In terms of the ambient temperature

11 regime, yes, we do.

Q. Okay. So your literature value; that

13 is, this 100 percent short-term survival of all

14 representative fish species, you're telling me

15 that's got to be balanced out. That has to be

16 potentially modified based on the observed

17 historical ambient temperature record, correct? I'm

18 understanding correctly?

A. Yeah. It's an option that's available

20 to you, and we recommend the users carefully

21 consider that.

HEARING OFFICER TIPSORD: Excuse me.

Mr. Dimond has a follow-up.

MR. DIMOND: Mr. Yoder, were you asked

176

to consider the observed historical ambient

temperature record for any segment of the

lower Des Plaines River?

MR. YODER: Well, not directly, but

doing that is an inherent part of this

methodology, and it's part of the report that

we produced. It's particularly important for

the nonsummer season recommendations. Those

are really based on the maintaining the

seasonal cycles so that it has been observed

to naturally occur.

12 BY MS. FRANZETTI:

Q. Moving back to how you explained or

14 how you recommend the period average, thermal

15 standard should be derived. You have -- as you --

16 and you read them off. There are five factors

17 listed here. Now, one is instead of the short-term

18 survival, the RAS that we were just talking about

19 for purposes of setting the daily maximum standard.

20 For the period average, we look instead at the 100

21 percent long-term survival of all RAS. So that's

22 the one difference there. But that's the value

23 that's coming from your ranking approach, correct?

A. Yes.

177

Q. Now, moving to No. 2. Is the source

2 of that information going to also come from your

3 ranking approach?

A. Yes. But you'd have to go to the -- I

5 believe in the example we discussed previously it

6 would be Appendix Table 3F on Page 66.

Q. Be careful. I think it's 1F.

8 Although you're not the first person who's --

A. We were talking about the option that

10 excluded golden red horse. So it's Table 3F.

Q. It is 3F?

A. Yes.

Q. Okay. So that -- So the factor of

14 growth of commercially or recreationally imported

15 fish species that also comes from that table, the

16 growth value, the growth end point?

A. Yes. There's a -- On Page 66, there's

18 a column --

HEARING OFFICER TIPSORD: Mr. Yoder,

you need to turn the microphone or -- when

you turn your head --

MR. YODER: Sorry. It would be the

second column where it says girth exceeded.

Whenever the growth -- and that's that mean

178

weekly average temperature for growth term.

Whenever that's exceeded, that species is

listed. And if that happens to be a

commercially or recreationally important

species, that then can become a consideration

in setting the average.

7 BY MS. FRANZETTI:

Q. If one of the species listed there is

9 commercially or recreationally important, what do I

10 do? How do I factor that in here?

All right. So I see one of

12 them is. What do I do with that information?

A. Well, you note it and then you

14 consider it in line with all the other five or

15 whatever criteria for the average. It doesn't

16 necessarily stop you and say go no further, but it's

17 consideration you need to make.

Q. In order to consider it, do I then go

19 back and look for -- Do I look at what their thermal

20 value is for growth for that particular --

A. Yeah, well, that's a calculated value,

22 okay?

Q. So I don't --

A. Experimentally derived value.

179

Q. I don't do that?

A. There's no other choice. But one

3 thing you could do if that species did have growth

4 experiments done, you could go look at those and say

5 are those in agreement or is there enough evidence

6 that this species is actually growing at higher

7 temperatures. That could be a factor in saying I'm

8 going to take this more seriously or I'm going to

9 let it go and go to the next species.

Q. But for this factor, I'm not going to

11 find a specific thermal value in your report to use

12 to address --

A. You're going to find it in the model.

14 You're going to find an end point. That's where

15 these exceedances come from.

Q. All right. So I can find some sort of

17 values for what the -- this growth factor is what I

18 should consider?

A. Yeah. It's on Page 64, it's the MWAT

20 for growth numbers.

Q. I thought I asked that and I thought

22 you said no. So okay. I understand.

Now, No. 3 is growth of at

24 least 50 percent of the nongame fish species where?

180

A. Well, again, I would have to go to

2 this column and I would have to count up to the

3 point where I lose, where I exceed the growth for 50

4 percent of the nongame fish species.

HEARING OFFICER TIPSORD: For the

record, this column is the column, the

second -- third column on Table 3F, correct?

MR. YODER: The second column, the

growth exceeded column in Appendix Table 3F.

10 BY MS. FRANZETTI:

Q. And, again, well -- How will I put a

12 thermal value to that factor?

A. Well, just for illustration purposes,

14 let's assume that it's half of the 26 species, okay?

15 So I count up to No. 13 and that is exceeded at 86.7

16 degrees.

Q. Now, No. 4 is 100 percent long-term

18 survival of all endangered fish species, so I would

19 just look at my -- well, I'd look on the

20 endangered -- I'd make sure that any endangered

21 species that are present in the water body. I've

22 looked at your literature value to see what is the

23 most sensitive of them, what's the 100 percent

24 long-term survival data say, correct?

181

A. Yes.

Q. Okay. No. 5, we're back to the

3 observed historical ambient temperature record. So,

4 once again, even with taking into account these four

5 other factors that are based on literature value,

6 you're also advocating for the period average that

7 the observed historical ambient temperature record

8 needs to be considered in setting the standard,

9 correct?

A. Yes.

Q. Can you give us any -- Can you

12 quantify for us at all in that weighting process of

13 the four literature value factors and the fifth, the

14 observed historical ambient temperature record,

15 what -- how much weight do you give to the

16 historical ambient temperature record versus the

17 other four factors?

A. Well, that's a standard setting issue

19 that we don't -- that we did not take part in here.

Q. Oh, I understand.

A. We're just laying out the options for

22 the main issue of the Agency to take it into

23 consideration.

Q. These are your recommendations,

182

1 correct, to the standard setting agency?

A. Recommendations is maybe a strong

3 term. They're options --

Q. Okay.

A. That they can choose from.

Q. Guidance? I guess what I'm saying is

7 isn't this what you recommend as the way to approach

8 setting thermal water quality standards?

A. Right. But the Agency could make the

10 choice to --

Q. To dis --

A. -- to consider growth being more

13 important than maintaining the ambient. That's up

14 to them.

Q. I understand. I'm asking whether you

16 have an opinion of how you would weight it. If you

17 don't, you don't.

A. I -- It's going to vary by the

19 situation.

Q. It's somewhat --

A. It's also going to vary by how the

22 Agency handles criteria exceedances, and what their

23 policies are. Different states handle it different

24 ways, and it's going to be affected by that.

183

Q. I understand you're saying it's a

2 site-specific type decision, depends on the water

3 body, depends -- correct?

A. It can depend on the water body, but

5 it can also depend on sort of the management study

6 that you're dealing with, what kind of, you know, if

7 you're dealing with a point source thermal

8 discharge. Two of the choices that we seem to come

9 down to, do I manipulate the standards or do I deal

10 with it in the permit. And I'm not sure there's a

11 clear consensus on one way or the other. I have an

12 opinion, but that's not at issue here.

MS. WILLIAMS: Do you want to go ahead

and give your opinion: That's fine.

MR. YODER: Well, in cases like this,

I think it works better if you handle things

through a permit, manage it.

18 BY MS. FRANZETTI:

Q. Why?

A. Because it's probably not possible to

21 write a temperature criterion that satisfies every

22 management need out there and doesn't jeopardize

23 either setting them too high or too low.

MS. WILLIAMS: And as a follow-up,

184

Mr. Yoder, would it be your opinion that you

won't recommend allowing for exceedances or

excursions within the standard?

MR. YODER: I would try to minimize

those kinds of clauses and exceptions,

because these criteria have to function for

all of the management applications that

standards to support including those that

were more accustomed doing like point source

permitting as compared to those we aren't

very accustomed to like writing TMBLs. And

those standards have to support all of that,

so I think we have to appreciate when we

write a standard what does it have to do.

15 BY MS. FRANZETTI:

Q. But Mr. Yoder, would you agree, though

17 that one thing that is a little atypical here for

18 the upper Dresden is that we are talking about

19 setting a thermal water quality standard for a

20 specific pool, just the Upper Dresden Pool; not a

21 river, not all general use waters in Illinois, in

22 this proceeding we are solely and specifically

23 looking to set a standard, a water quality standard,

24 for one pool. Do you still say you don't address

185

1 this in the standard what the appropriate thermal

2 level should be?

A. It wasn't my mission to address the

4 standards issue surrounding that example. That's

5 Illinois EPA's --

Q. I understand. But you just gave an

7 opinion that it ought to be addressed in the permit.

8 And I'm suggesting you gave that answer based on the

9 more typical situation where you're looking to

10 create a thermal water quality standard that's going

11 to apply to various water segments. It's going to

12 be via use designation. Isn't that the more typical

13 standard setting process?

A. Yes.

Q. Okay. And wouldn't you agree here we

16 are talking about in comparison a very small area

17 known as Upper Dresden Pool. And in that situation,

18 might your answer be different in terms of deal with

19 it in the permit but set the standard without

20 considering the factors like ambient, record, et

21 cetera?

MS. WILLIAMS: Are we really just

talking about the --

MS. FRANZETTI: Counsel, either object

186

or I want an answer.

MS. WILLIAMS: I object. I don't

think we're just talking about the upper

Dresden. It affects all of the lower

Des Plaines River, so I just found it

confusing. I thought --

MS. FRANZETTI: Are we going below I55

bridge with what you've proposed in your

Upper Dresden Island Pool use?

MS. WILLIAMS: No, but the report also

addresses the Brandon pool is all I'm saying.

MS. FRANZETTI: But that's not your

use designation.

MS. WILLIAMS: We have a use

designation.

HEARING OFFICER TIPSORD: Let

Mr. Yoder answer the question if he can.

MR. YODER: I don't think my answer

would change for this site versus a more

global application.

HEARING OFFICER TIPSORD: If you're

moving on to question six, let's take a

break.

(Short break taken.)

187

HEARING OFFICER TIPSORD: Let's go

back on the record.

MS. FRANZETTI: Madam Hearing Officer,

I would like to introduce and have marked as

an exhibit in evidence in this proceeding the

Ohio Journal of Science, January 1976 report

Thermal Discharge From a Nuclear Power Plant

Predicted Effects on Lake Erie Fish that I

mentioned earlier in my questioning of

Mr. Yoder.

HEARING OFFICER TIPSORD: Thank you.

If there's no objection, we'll mark that as

Exhibit 17. Seeing none, we'll mark that as

Exhibit 17.

MS. FRANZETTI: I want to thank the

Agency for making copies during the break,

and here are some additional ones.

HEARING OFFICER TIPSORD: The Ohio

River report from Mr. Guiters' (ph.)

testimony is 16.

21 BY MS. FRANZETTI:

Q. I'll start with question subset C6.

23 How does the, Mr. Yoder, how does the

24 species-specific ranking of temperature tolerance

188

1 under your model address, if it does, other factors

2 such as population, community, and/or food-web

3 interactions?

A. It doesn't directly address those

5 factors.

Q. All right. Do you think those factors

7 are relevant in terms of the thermal water quality

8 criteria derivation process?

A. Well, I think almost categorically

10 they're important to any criterion setting process,

11 whether it be temperature or some other parameter.

12 The problem is we just don't have much information,

13 much expiremental data on those things.

Q. Moving on to Question 7, in the

15 MBI/CABB 2005 report at Page 7, you describe your

16 approach to developing thermal standards as being,

17 quote, "naturally limited by the extant thermal

18 tolerance data base," end quote. And you note that

19 the model output will, quote "propagate a degree of

20 uncertainty", end quote. Your report goes on to

21 state that this uncertainty in the recommended

22 thermal criteria, quote, "can be considered in the

23 eventual derivation and application of the

24 temperature criteria," end quote.

189

Is it correct that you left it to

2 the Illinois EPA to determine how those

3 uncertainties in the application of the model output

4 predictions in the literature-based rankings should

5 be addressed in its review and any revisions to your

6 recommended thermal criterion?

MS. WILLIAMS: Susan, do you know

which paragraph? I'm having trouble finding

those quotes.

MR. TWAIT: It's under representative

acquatic species.

MR. YODER: That's not a direct quote.

13 BY MS. FRANZETTI:

Q. Mr. Yoder, do you have a problem with

15 how the question is?

A. I haven't found the quote, but.

MS. WILLIAMS: I haven't found the

quote yet either.

MR. SULSKI: I haven't either.

MS. FRANZETTI: Ladies and gentlemen,

are you talking about both quoted sections?

I made a quote about three phrases in that

question. Can you not find -- Are you saying

you can't find any of them?

190

MR. YODER: I can't find the naturally

limited by extant thermal tolerance data

bases in the quote. If you can help me find

that.

MS. FRANZETTI: If you go all the way

to the third line from the bottom of Page 7

to about the middle of the beginning of the

new sentence. Our approach is simply a best

attempt to represent the entirety of the

potential assemblage and, quote, "It is

naturally limited by the extant thermal

tolerance data base." Do you agree my

quote --

MR. YODER: Thank you. Well, it

was --

MS. WILLIAMS: So the quote begins at

the bottom of Page 7 and then continues on to

Page 8, correct?

MR. YODER: I was looking for the

whole sentence.

MS. FRANZETTI: The next sentence does

contain the phrase, "The model output will

propagate a degree of uncertainty which can

be considered in the eventual derivation and

191

application of the temperature criteria."

Yes. Part of that goes over to Page 8.

MS. WILLIAMS: And there's a typo

here. In the -- you say in the eventual in

the eventual in your question twice. I think

there's a --

MS. FRANZETTI: I tried not to read it

twice. I don't think I did.

MR. YODER: The answer to your

question is yes.

11 BY MS. FRANZETTI:

Q. Thank you. Did you in any way guide

13 or discuss with the Illinois EPA how it should

14 address these uncertainties?

A. Nothing directly that I can recall. I

16 think the extent of our conversations after this

17 study were mostly clarification issues.

Q. Okay. What do you mean by

19 clarification issues?

A. Oh, you know, if there were just

21 understanding what I was saying more. I did not get

22 into, you know, how they should use it.

Q. All right. Okay. Moving to D updated

24 fish model data base Question 1. At Page 6 of your

192

1 prefiled testimony, you state that MBI updated the

2 thermal effects data for ORSANCO and included over

3 200 new and suitable thermal effect studies, mostly

4 produced after 1978. What do you mean by, quote,

5 suitable thermal effect studies. When is a study

6 suitable to be included in your data base?

A. If it provides the type of data and

8 information that we need to use the fish temperature

9 modeling system.

Q. And by that do you mean information

11 values for the types of thermal end points that are

12 put into your data base?

A. Yes.

Q. So if it doesn't have one or more of

15 those thermal end points then it's not a suitable

16 study for purposes of your data base, correct?

A. That's right.

Q. Okay. So that's the criteria, turning

19 to next question, that's the criteria that you use

20 to determine suitability?

A. Well, it's one of. I would have to

22 refer to the report. I think we covered what we

23 considered in our literature review.

Q. Well, you know, let me maybe move on

193

1 to Question C. Because really what I want to know

2 is for these over 200 new studies, what QA/QC

3 procedures were employed in those studies to

4 determine -- I'm sorry. What QA/QC procedures were

5 employed by either you or others who control your

6 data base and what new study results get into it?

7 What QA/QC procedures were used to determine whether

8 the study results were reliable and credible?

HEARING OFFICER TIPSORD: QA quality

insurance, QC quality control?

MS. FRANZETTI: Thank you. Yes.

MR. YODER: Well, we, one, had to --

it had to contain -- It had to be designed

such that it yielded one of the end points

covered in the appendices to the ORSANCO

document, and we also made -- It had to be

clear whether it was a field or laboratory

study. It had to state what kind of

laboratory study it was. It also had to

state what kind of end point it was

producing. And we denoted all of these by a

series of footnotes. And we ended up

compiling a list of, I believe I would say,

about 75 different footnotes which would

194

denote how many different variants on these

different studies there actually were. So

that was really kind of our QA/QC aspect of

the study. I'm not sure how else to -- what

else to add to that. It was also viewed were

these in a credible publication venue.

7 BY MS. FRANZETTI:

Q. What were your -- What was your

9 criteria -- What do you mean by a credible

10 publication venue?

A. I didn't want to -- We didn't want to

12 use the very restrictive sense that it could only be

13 from a refereed journal because a lot of the way the

14 thermal literature is developed over the past 40

15 years, that there's been a lot of compendia

16 developed that aren't necessarily amenable to

17 getting it published in a journal due to their size.

18 But they do refer to a lot of journal-based studies.

19 So we included those as well. But we attempted to

20 minimize the amount of what we call gray literature

21 involved, but that didn't necessarily disqualify it

22 if we knew the sources of those studies because

23 inherently a lot of this is -- not a lot, but some

24 is what some people might call gray literature.

195

HEARING OFFICER TIPSORD: Did you say

gray literature?

MR. YODER: Gray literature is the

term. That's -- It can be a very

nonconstructive term sometimes. But a lot of

the, I guess, the bigger compendia out there

published by reputable sources, but not

necessarily in a refereed situation where you

have anonymous reviewers and that sort of

thing. So individual studies of individual

species, for this we tried to adhere to some

type of journal publication for that. And,

again, the bottom line was it had to have a

good experimental study design whether it was

a lab or a field study. So I think for field

studies we insisted there, I think our bar

was set pretty high, that we accepted field

studies where there were temperatures

available that were above ambient. And we

rejected some studies that only looked at

fish distributions in an ambient temperature

regime and not an artificially elevated

temperature regime. So we did -- We did

disqualify those studies. So that's kind of

196

all part of the QA/QC process, in my view.

2 BY MS. FRANZETTI:

Q. Why do you disqualify the studies, the

4 field studies that don't use an artificially

5 elevated temperature?

A. Because you can't -- The fish were

7 never offered the opportunity to inhabit

8 temperatures above ambient. And some species will

9 do that. Others won't. It doesn't give you any

10 basis for saying that the species avoided that

11 temperature.

Q. Understand. Of the over 200 new

13 studies that you have added to the data base, do you

14 know whether any of those produced or were the basis

15 for the thermal values that you have in your tables,

16 of thermal end point criteria in your report,

17 Exhibit 15, that we were talking about, Table 2,

18 Table 3 for example. Is there any way for us to

19 tell whether those newer studies are the source of

20 the values that wind up being in your thermal end

21 points criteria for the respective uses you looked

22 at?

A. Okay. The 200 studies came -- They're

24 the studies that came out of our review as having

197

1 sufficient information to list in the appendices to

2 the ORSANCO report which is really the baseline data

3 gathering step. We screen more than 500 titles.

4 And from that screening came these 200 new studies

5 that we selected.

Q. What I'm trying to -- Let me rephrase

7 my question. I'm not sure you actually are

8 understanding it. I'm just trying to figure out

9 whether any of those newer studies are the --

10 produced any of these numbers. When I look at

11 Table 2, general use, when I look at Table 3, any

12 way for me to tell if these numbers came from these

13 newer studies?

A. Not by just looking at the Des Plaines

15 report, no. You would have to go to the appendices

16 of the ORSANCO report, and a rough rule of thumb

17 would be any study that had a date after 1978 would

18 be new studies that we found. Because the -- the

19 previous compilation was limited to the time period

20 up until 1978.

Q. Right. But don't I have to actually

22 do more than that? I've got to go back to

23 Appendix 3F that we were talking about earlier, I

24 have to figure out what species is the source of

198

1 these values, then I got to go hunt through your

2 references on that species and look for and then see

3 whether or not any of the literature listed is one

4 of the newer studies?

A. Yes. You could tell for some by -- if

6 it was a species that was a brand new species added

7 since then. It would be very easy to tell that.

8 You can tell that versus summary table in the

9 ORSANCO in Exhibit 16 in Table 9.

Q. Did you, by any chance, keep track

11 when you were putting together Tables 2 and 3 of

12 your report, whether any of them are based on, for

13 example, one of the newer species so it would be the

14 new data?

A. No, I didn't.

Q. Okay.

A. We also, as part of the ORSANCO study,

18 actually went back and reexamined some of the

19 previous studies at the same time.

Q. Moving on to thermal end points,

21 lethality, Section E of my questions. E1, on Page 5

22 of the 2005 lower Des Plaines report, which is

23 Exhibit 15, it is stated that, quote, "When upper

24 thermal end points were available for more than one

199

1 method, the MBI, paren, 2005 study, selected lethal

2 end points based on the following, paren, most

3 preferred first, dot dot dot, end quote," after

4 which the report lists the ChTM, UILT, and CTM

5 methods in that order. So this statement suggests

6 that where multiple studies using different methods

7 were available, some were selected to use their

8 lethal end point values, and some were not; is that

9 correct?

A. Well, they were all recorded in the

11 data appendix, so they were gathered. They weren't

12 ignored. But the -- If I can cut to the quick, we

13 tried to convert everything to something compatible

14 or equivalent to the incipient lethal temperature

15 end point. So that was the goal.

Q. How about we cut to -- I'll finish

17 reading the rest of that question, but I'm going to

18 go to Subpart A, Mr. Yoder, because I want to make

19 sure I understand what you do when there are these

20 multiple studies, although using different study

21 methods in terms of either what makes it into your

22 data base and then what -- or if they all make it

23 into your data base. Maybe we can start there.

Do all of those, whether they're

200

1 using the ChTM or the UILT or the CTM method, do

2 they all get to come into your database, their

3 laboratory values that result from the application

4 of those methods?

A. Yes. If the studies fit the --

Q. Suitability?

A. Previous criteria set before, they

8 will all be recorded in the appendices. They were

9 all recorded in the appendices to the ORSANCO

10 report. So that's the first step is gathering all

11 of the data.

Q. And when you say gathering the data,

13 that's the equivalent of when I say goes into the

14 data base or no?

A. Okay. I'm also thinking what goes

16 into the database is what gets into the fish

17 temperature model, underlying database for all the

18 RAS. And so I see that as two different things.

19 It's one to get into the appendices, and then you go

20 from there to the fish temperature model end point.

Q. Okay. So let me use this. If like --

22 This isn't going to be a great example, because

23 Great America, once you pay you get on all the

24 rides. But let's assume if I'm just going into the

201

1 park and I'm not going on the ride, that's getting

2 on the appendices, and of these get into the park,

3 correct?

A. Okay.

Q. Now I want to go on the Batman ride.

6 To get on the Batman ride, which is the equivalent

7 of your data base, how do I get on Batman? How --

8 Is everything that got in the park, everything that

9 got on the appendices, also wind up in the data

10 base, gets to go on Batman?

A. In the FDM --

MS. WILLIAMS: By the database --

MR. YODER: Talking about the input

data. I understand what you're saying now

about database.

16 BY MS. FRANZETTI:

Q. It all goes into the database?

A. Once it gets into the appendix, then

19 it is a candidate to be selected to be in the FTM

20 input data, okay, one of those four thermal end

21 points which --

Q. Yes. But when you say candidate, it's

23 like is there another screening? You can get on the

24 appendices, but you may not make it into the data

202

1 base?

A. Right. And for some species you're

3 going to find there's going to be one value in

4 appendix in the ORSANCO appendix to Exhibit 16. And

5 so that's your only choice. But say you have a

6 species that has six different UILT values from

7 different parts of North America. Which one are you

8 going to use, you know, and that's where the choices

9 about what you take -- we might, in some cases, we

10 might average some of those together, we might look

11 at them geographically if we're setting standards

12 for the Midwest. We'd like to have studies that

13 correspond to this region for setting them for the

14 Great Lakes. We would obviously like to have Great

15 Lakes data, experimental data go into that. So

16 those are the choices that are made, and that's

17 where the -- what you choose to put in the input

18 part of the model can vary. That's a choice.

19 That's why we call it an input variable. It can

20 vary depending on the situation.

So what you saw for the

22 Des Plaines is just an example manifestation of

23 that. Somebody else could take it and say, well, I

24 don't agree with your end point for stonecat madtom.

203

1 We're either going to generate a new one or we're

2 going to drop it out. That's part of the use model.

Q. I don't think I realized this. I

4 don't think I realized that there were --

5 effectively there are judgments that have to be made

6 as to which literature values from that appendices

7 go into the data base to be used to wind up with the

8 values in Tables 2 and 3 of your report, correct?

A. That's essentially correct. And

10 that's what, just keep to -- to try to simplify

11 this. There are two key input variables to the fish

12 temperature model. There are the -- There are the

13 values, the four key values for each species that's

14 listed in the model, and then there's the

15 representative species list, both of which can be

16 varied.

Q. Oh, yes. I understand. I understood

18 the representative species list could be varied, and

19 this one you --

A. Right. But the model is set up to

21 provide the opportunity for a user to look at the

22 effect of different end points that might be

23 generated by multiple studies.

Q. Yes. But the end points don't change,

204

1 do they? You always are looking at the four or

2 five -- five that are listed in Tables 2 and 3 that

3 we went through earlier: Optimum, growth,

4 avoidance, survival long term, survival short term,

5 or is that not what you mean by end points?

A. Well, let's back up a minute. Let's

7 go back to the Appendix Table 3F or 1F that we were

8 looking at as our previous example. And if we look

9 at Page 64 again.

Q. Yes.

A. Those -- Again, it's the optimum, the

12 mean weekly average temps per growth, the upper

13 avoidance, and the UILT, those are the four key

14 input variables for each species that go into the

15 model. And what I'm saying is that a user could

16 vary those based on --

Q. What do you mean vary those? Vary --

A. Well, they --

Q. Not use those four?

A. But there has to be some justification

21 for substituting another value.

Q. I understand. But it would be -- It

23 would be a different end point. Somebody might get

24 rid of optimum. Is that what you mean when you say

205

1 vary?

A. No, no. Some -- For instance, let's

3 take the first species on the list which is gizzard

4 shad, and it listed UILT of 35.8. And someone says,

5 well, I have a study that says the UILT now is 34

6 degrees. They can, if they have that study and it

7 meets the specifications, they can plug that in and

8 say that's the value I'm going to use for this

9 particular situation.

Q. Okay. That's -- all right. That's --

11 I understand that now?

MEMBER RAO: So you're saying --

MS. FRANZETTI: Go right ahead.

MEMBER RAO: You're saying any one of

these can be picked from different studies if

there are marketable studies on the same

species?

MR. YODER: Yes. You have that option

with this procedure to do that. Obviously it

needs to be justified why that particular

value is picked and another one that's

available was not picked. And there's also

the option to take three or four studies and

develop an average and use that as a means

206

for --

2 BY MS. FRANZETTI:

Q. So when you've been using the term

4 data base, let me explain what I was thinking, and

5 I -- or understanding that term to mean, which I

6 think now is not quite right. I assumed the data

7 base was the universal data base where everything

8 that met or MBI/CABB suitability criteria was

9 entered in. And if you were doing this when you

10 were doing this lower Des Plaines work, you went

11 into that data base and you, once you made your RAS

12 decisions; i.e., the 49 for the general use, you

13 just asked the data base give me, for these thermal

14 end points, optimum, UILT, for these 49 species,

15 give me your numbers from the studies that have been

16 inputted into the data base. But are you saying

17 that instead -- well, yes, that may exist as a

18 universal data base. When I'm going to do a

19 specific project to come up with temperature

20 criteria for a given water body, I will actually

21 take a subset of that data base based on some of the

22 things you've just been saying. Maybe I think this

23 one gizzard shad study is more reliable than what

24 you've got in the data base already. So that's

207

1 going to go into that one is going into my data

2 base. And I may think that of several studies, all

3 of which utilize the ChTM method for determining the

4 lethal end point, I like -- I want to do an average

5 of those six studies' values. That's what's going

6 into my data base. Is that what you mean? Am I

7 kind of creating a -- I'm customizing the database

8 using those kinds of judgments?

A. Yeah. And I don't mean to be too

10 picky here, but I look at the database as the

11 compilation of all the literature data that's in --

Q. That's how I was looking at it.

A. -- Appendix Z1 of the ORSANCO report.

Q. Right.

A. What I can customize are the input

16 variables to the fish temperature model.

Q. Okay.

A. Yes. That in itself becomes a sort of

19 a sub database. And what you can do with the

20 electronic version, you can save each one of those,

21 okay? So if you create Version 1.01 for the

22 Des Plaines River or wherever, and you can then say,

23 well, I'll either -- and I have some values, I want

24 to see what the sensitivity is. Because I've got

208

1 these multiple studies, that kind of doesn't all say

2 the same thing. Then I can create version 1.02 and

3 03 and see what the effect of that is.

Q. Okay. Now, you know where I'm going

5 next is in your report, do you lay out those kinds

6 of input decisions that you apply for purposes of

7 derriving temperature criteria for the three uses in

8 your report?

A. Not directly because of the scope of

10 the work. I took -- we have kind of a baseline set

11 of data that we use for Midwestern warm water rivers

12 that we developed. And it's generally going into

13 the ORSANCO appendix and getting geographically

14 relevant studies. And where there's multiple

15 studies, I believe we took the mean of some of those

16 studies and plugged that in for a particular

17 species. And I did not manipulate that for this

18 particular report. What I ended up using as the key

19 changing variable was the RAS membership. That was

20 the first thing we really looked at. Because that's

21 where most of the questions were. But it's possible

22 to also, with justification, to modify the input

23 variables on Page 64.

Q. I understand that now that it is

209

1 possible. You don't think you did a lot of that,

2 though, for purposes of your --

A. For this report I didn't do any of

4 that.

Q. None of that, okay. Well, then can

6 you answer my question 1A. You know, where more

7 than one study for a given end point existed, do you

8 know, using what I will call your kind of more

9 generic approach to the input values, did MBI use

10 all of the studies or only some when there was more

11 than one study for a given end point?

A. It varied depending on the species --

13 well, it's really almost a species-by-species

14 decision based on what information is really out

15 there and available.

Q. No. But, wait, let me ask you. See,

17 that's what I don't understand, is my question

18 presumes that for a given species, there's more than

19 one study. You've got data, you've got more than

20 one study. What do you do or does -- or are you

21 telling me that even where you have more than one

22 study it's going to depend on the species, how you

23 deal with the values in that study for purposes of

24 your data base?

210

A. It's going to potentially vary by the

2 species depending on what studies are available for

3 that species. Obviously for a species that only has

4 one study --

Q. No. But see, that's not -- my

6 question isn't -- one study I understand. You only

7 have one value. What are you going to do? You've

8 got to use it or nothing?

A. If you have multiple values, the -- I

10 can't say there were any hard and fast rules to

11 this, but we tried to adhere to geographic

12 relevance, wherever the test fish is from, what part

13 of the, of North America were they from or where

14 was, if it was a field study, where was that field

15 study conducted.

Q. And are those choices documented?

A. I am -- To be totally certain, I'm not

18 sure now that they are. I'd have to go in and look

19 at the electronic database to verify that.

Q. Would you agree then it's going to be

21 hard for someone like me to turn to someone else who

22 I think is an expert with regard to the derivation

23 of thermal criteria and ask them to review what you

24 did here and whether they agree with those decisions

211

1 on those inputs, right? I mean that's going to be

2 hard for me to do, if not impossible?

A. Yeah. I'm not sure.

Q. Okay.

MS. WILLIAMS: Excuse me. Just to

redirect for a minute. If someone, though,

was to come forward with a study they thought

was better than one you had relied on, they

would be able to manipulate the fish

temperature model to utilize that study?

MR. YODER: Yeah. They should be able

to.

13 BY MS. FRANZETTI:

Q. Just a little problem with that

15 assumption. The person would need to know what you

16 did with your inputs to know whether or not they

17 were doing something differently, correct,

18 Mr. Yoder?

A. Can I hear the question again, please.

Q. Let me ask -- Actually, let me ask it

21 a different way.

If someone else runs your model,

23 would they come up with the same numbers you did

24 here in your report?

212

A. Yeah. If they had the same input

2 variables, if they had the same knowledge of input.

3 But I mean if they're starting from scratch.

Q. Yes.

A. Without any knowledge of the decisions

6 I made, they could potentially come out with a

7 different answer.

Q. Right. Okay. So you have to -- to

9 come out with the same numbers you did, you've got

10 to know the inputs you made.

A. Right.

Q. All right. And those aren't

13 documented in this report -- in anything that's been

14 produced here?

A. Other than what's in the appendix

16 tables. I mean that is documented in this report.

17 So the key, the variables that are put in, those

18 numbers are reported in the appendices.

MS. WILLIAMS: So you're saying that

someone can find what you did use, but it

might be difficult to find what you didn't

use? Is that what you're saying?

MR. YODER: It's possible they'd have

to have the ORSANCO report and almost go by

213

process of elimination and deal with that.

2 BY MS. FRANZETTI:

Q. It would be pretty tedious, if it is

4 possible?

A. It would be.

Q. Okay. So now, if I just go back to

7 asking you what you did, and, again, talking about

8 these instances where there are multiple reports or

9 studies for the same lethal end point, can you tell

10 me whether or how many studies you may have excluded

11 from the inputs that you used for your work here?

A. When you say excluded, you mean the

13 ones that we listed in sort of our raw data

14 compilation?

Q. Right, but didn't make it into the

16 inputs.

A. You could not read the Des Plaines

18 report and figure that out for yourself.

Q. I understand. I think we already

20 established that. I'm moving on to can you just

21 tell me -- I mean were you excluding some reports

22 and their values when you were doing this work?

A. Yeah. There's some I can recall that

24 I did that with.

214

Q. Can you give us examples just so we

2 have some understanding of your --

A. Let's take --

Q. -- process here.

A. Large mouth bass is a good example.

6 There's quite a bit of information and there's also

7 quite a latitudinal variation. There are studies

8 from Florida that's actually a subspecies that we

9 don't have, so obviously I did not use that data.

10 You'll find it in Appendix Z1, but that was

11 excluded.

Q. And large mouth bass is on your RAS

13 list obviously, so we're only -- We're talking about

14 decisions you made?

A. I believe so.

Q. It is. It is. I just wanted to make

17 that clear or everyone whose listening is we're

18 talking about decisions you made within the

19 parameters of your RAS list as to what study results

20 you used?

A. Right.

Q. So that was a geographic decision?

A. Yes.

Q. Okay. Other examples?

215

A. Well, the reverse might be true of

2 some species that also occur in northern latitudes

3 that we felt might not have been representative and

4 where there were studies that were more

5 geographically relevant.

Q. Okay. Do you recall if you did, where

7 you had multiple studies, did you use a mean value?

8 Did you average them?

A. I know for some we used means.

Q. Mr. Yoder, if you can look at Question

11 E1. I had stopped in the middle of it, and I want

12 to focus on the last part of it that begins in

13 contrast on Page 7 of your prefiled testimony. It

14 is stated that, quote, "The combined lethality input

15 parameter, paren, relying on ChTM, UILT, and CTM

16 with a safety factor, closed paren, was used in

17 calculating the short-term and long-term survival

18 outputs of the fish temperature model."

That seemed kind of important

20 to me because it relates to the short-term and the

21 long-term survival outputs which can be used for

22 derriving a daily maximum and a period average

23 thermal water quality standard. So what does that

24 mean? Were you combining literature values? What

216

1 were you doing?

A. Now, what we were doing was that these

3 are really the three common lethality experimental

4 inputs that aren't reported in the literature. And

5 they're not -- They're not all equivalent, okay, in

6 what their implication is for environmental effects.

7 The ChTM, what we call the chronic thermal maximum,

8 it's lately been viewed as being the most

9 environmentally realistic end point. But the

10 problem is there are so few studies out there. So

11 the next best end point is the upper incipient

12 lethal temperature that was, for many years, viewed

13 as being more environmentally realistic. And

14 there's quite a bit of information with that end

15 point. The CTM, let's call it the chronic thermal

16 maximum, I would say that most of the acute

17 lethality end point studies, just the volume of

18 studies out there, rely on that method. The problem

19 with it is it's not viewed as being environmentally

20 realistic because of the way that test is conducted.

21 So there's a sort of a rule of thumb safety factor

22 that's used to adjust that to make it more like the

23 upper incipient lethal temperature, at least in

24 equivalency. And a lot of these rules of thumb go

217

1 back to what I call the Zenith of thermal research

2 in the 1970s, when there were just many more people

3 looking at these concepts. And some of those

4 eminate from that time period.

Q. I didn't realize that. The 1970s are

6 considered kind of a Zenith for thermal studies?

A. You come up to -- I think once you get

8 up to around 1980, temperature kind of falls off the

9 face of the earth as a parameter of concern.

Q. I see. Thank you. So if I understand

11 your answer correctly, the chronic thermal maximum,

12 the ChTM method, is -- sorry. Is it critical

13 thermal maximum, the ChTM stands for critical, not

14 chronic?

A. CH is shorthand for chronic. It's a

16 term when -- admittably we invented it. I think

17 there's another term, I'd have to look it up, it's

18 the ACE is what it's really called.

I'm sorry. I made a mistake.

Q. Oh, did you?

A. ChTM, we're calling it chronic thermal

22 maximum. CTM is called the critical thermal

23 maximum.

Q. You made Mr. Seigert very happy by

218

1 that clarification. That's exactly what he was

2 trying to point out.

A. The ChTM has another more official

4 term. It's in our ORSANCO report, and I just

5 don't -- it's an ACE, but I don't --

Q. That's okay. That's all right.

A. -- recall it right offhand.

Q. Just so I understand correctly, the

9 ChTM newer method. Would that be a fair term to

10 use?

A. Yes.

Q. And considered better because it's a

13 better reflection of what's really going on out in

14 the stream when you use the ChTM method?

A. Well, its proponents claim that. I'm

16 not sure I --

Q. Oh, you disagree?

A. Well, I'm not sure where I fall on it

19 yet.

Q. Okay. All right.

A. What it does is it -- the test

22 temperature is increased very slowly, like point

23 five degrees per day until the organism dies

24 basically. And which really it kind of simulates

219

1 what we call an upper incipient lethal temperature,

2 whereas the critical thermal maximum --

Q. Before you get to that.

A. I'm sorry.

Q. And the reason, at least some people,

6 may not include you, think that that more -- is more

7 reflective of real life conditions is that more

8 typically thermal temperatures are rising along

9 those -- at that type of pace.

A. Well, you have to understand what the

11 other two end points are before you can understand

12 why people think it's --

Q. Okay. Go ahead.

A. So the critical thermal maximum, the

15 CTM, is a much older method, and it ironically was

16 called the slow heating method when it first

17 originated, but it's actually a rapid heating method

18 or the test temperature is increased anywhere from a

19 half a degree to a degree, sometimes on the order of

20 minutes, or it might go up by five degrees an hour.

21 And what happens is by the time the organism dies,

22 it's past the point of where it was really in

23 trouble to the point of no return. So you get a

24 falsely high reading.

220

MS. WILLIAMS: Are you picturing the

frog in the boiling water? That's what I'm

thinking of.

MS. FRANZETTI: Can you tell what type

of child I was as I'm laughing.

6 BY MS. FRANZETTI:

Q. The CTM method that you just talked

8 about, so the safety factor that you make reference

9 to, that is applied to a CTM produced value is to

10 deduct a couple of degrees from that value?

A. Yes. And to make it more in line with

12 what the incipient lethal temperature test would

13 include, because trying to equate the two end

14 points.

Q. Because the thinking is that because

16 of the more rapid temperature rise and the CTM

17 method, that the fish maybe died at 93 degrees, but

18 we got to 95 in the test so quickly, we can't really

19 be sure?

A. Yeah. Before the organism lost.

Q. Right.

A. But it was really in the -- at the

23 point of no return at some lower temperature and the

24 rule of thumb is 92 degrees.

221

Q. Right. We don't really know. It's a

2 bit of a guestimate. We don't know if it was 94, we

3 don't know if it was 94 and a half, we don't know if

4 it was 93 and a half. But for ease of use purposes,

5 two degrees, rule of thumb, subtract it off the end

6 laboratory test result?

A. Right.

Q. Okay. Now, with respect to -- You've

9 now explained these different laboratory methods for

10 generating a lethality input value. Can you explain

11 now what did you do here when you had two or three

12 different test methods being used generating

13 different lethaltiy values for given species. Did

14 you use them all, did you average them, did you take

15 the mean -- What did you do?

A. Well, the first thing we did was

17 adjust and -- You don't have to do anything to the

18 CHDM or the UILT. Those were used -- the CTM

19 subtract the two degrees. I believe -- sort of the

20 rank order selection was use the ChTM first, the

21 UILT next and the CTM as a -- if that was all that

22 was available with the two degree safety factor.

Q. But my question assumes all three of

24 them are available. So then would you just use the

222

1 value from the ChTM study?

A. That would be the first choice, yes.

Q. Okay. And you wouldn't use the UILT

4 or CTM values?

A. Right.

Q. You'd ignore those?

A. Right.

Q. Okay. If you didn't have ChTM but you

9 had UILT and CTM, would you just use the UILT value?

A. Yeah. But provision there is if the

11 ambient -- if the acclimation temperature was

12 realistic at which the test was being -- that is --

13 that test is acclimation. So you acclimate

14 organisms to a particular temperature and then you

15 expose them to a higher temperature. It's what's

16 called the rapid transfer method. And so if it's at

17 a realistic acclimation temperature that would be

18 comparable to ambient, summertime ambient conditions

19 in warm water systems. Yeah, we'd use that first.

20 But there could be an instance where, you know,

21 there wasn't a complete set of -- usually they'll

22 test the acclimation temperatures starting at

23 5 degrees C and going every five degrees up to 25 or

24 30 degrees C. So you usually have that range of

223

1 test done. But some, you know, maybe they didn't

2 get all the way up to 25 or something for some

3 reason.

Q. For -- does what you -- Does your

5 opinion of what is a reasonable acclimation

6 temperature change based on the work you're doing?

7 In other words, for this work in Upper Dresden Pool,

8 do you have a certain acclimation temperature in

9 mind that you want to see in the studies, the UILT

10 studies that you're going to use, or do you always

11 just have one acclimation temperature range that you

12 consider suitable?

A. Well, again, it would -- It's for what

14 we regard as the class of warm water system, so we

15 look for acclimation temperatures of at least 25

16 degrees C up to 30 degrees C.

Q. Okay. So here you wanted to see

18 acclimation temperatures of at least 25 degrees C up

19 to about 30 degrees Celcius?

A. Correct.

Q. And if you only had the CTM type data,

22 would you then just use it after you applied the --

23 I'm sorry. You had only CTM, but multiple studies

24 using it generating different values? I recognize

224

1 you'd apply your safety factor 2 degrees, would you

2 average those values or take the lowest, the most

3 stringent?

A. Not necessarily the most stringent.

5 It would, again, be sort of a choice based on how

6 many studies are there and what's their geographic

7 relevance. And assuming the acclimation

8 temperatures were -- that's also acclimation

9 dependent. I should have mentioned.

Q. Oh, all right.

A. And sort of the same train of thought

12 that I talked about with large mouth bass, so -- and

13 if there were multiple studies available.

Q. Right. Well, if you only have one

15 study, you've got to use that value, correct?

A. Well, that's, if you're going to use

17 that, include that species, yes, that's --

Q. Actually, though, let me ask you this

19 question: You only have one study value for one of

20 your RAS species for this lethal end point. But the

21 acclimation temperature is not at least 25 degrees

22 to 32 degrees Celcius. What do you do? Do you use

23 it or do you leave it out?

A. Well, it's a judgment call. And there

225

1 was an occasion where I did that, and I did not use

2 the two degree safety factor because the test was at

3 a lower acclimation temperature.

Q. I think you have to explain to me why

5 that creates an exception to the rule that you

6 deduct 2 degrees from those test results.

A. A test done at a lower acclimation

8 temperature may produce a lower lethal temperature

9 than a test done at a higher acclimation

10 temperature. And so to try to kind of translate

11 that to the summer season effects, there was one

12 study which I did not apply the two degree safety

13 factor in recognition of the fact that it probably

14 wasn't producing a summertime type of end point.

15 And if I didn't use two degree safety factor, that

16 would at least make up for some of that, I guess if

17 you want to call it a short coming in the study or

18 incompleteness in the study. And it really gets

19 down to a choice. This is where the RAS gets to be

20 so important and your knowledge about how biased is

21 the data base towards a certain tolerance of

22 species.

Q. Well, I understand. But it also

24 concerns me a bit that you are taking one study,

226

1 you're not crazy about it because of the acclimation

2 temperature it's using, but you've only got it. So

3 if you want to use, you want to have a value, so you

4 make this judgment call, all right, as you said, to

5 reduce the shortcoming of it, I'm not going to do my

6 two degree rule of thumb safety factor. But what if

7 that's the guy, that's the study result that comes

8 up being the lowest on -- I'm not going to go

9 through it again, but, you know, you're top-ranked

10 most sensitive, that can really drive the selection

11 of the thermal water quality standard, wouldn't it?

A. It can, and then when you -- when

13 something like that is noted, we can eliminate that

14 uncertainty by also writing an option that doesn't

15 include that species as an RAS. And then we can see

16 what the effect is and a risk manager can make a

17 decision.

Q. Okay. I think we've answered a lot of

19 these, so bear with me.

MS. WILLIAMS: Which ones are we

skipping?

MS. FRANZETTI: I'm reading to see

where I think I need to pick back up.

227

1 BY MS. FRANZETTI:

Q. Moving over to Question 2, and I think

3 we covered this in part, Mr. Yoder, with our

4 discussion now of the UILT, the ChTM, the chronic

5 thermal maximum, and the critical thermal maximum,

6 CTM. You've already described, I believe, the

7 chronic thermal maximum method of a slow -- that's

8 the one that uses the slow heating method and is

9 most environmentally representative. So unless you

10 have something to add about explaining the meaning

11 of the phrase slow heating method, I think we've

12 covered it.

A. I would like to clarify the -- when I

14 say that's the most realistic method, that's what

15 the proponents of the method claim.

Q. Now, you already said you're not sure

17 you agree?

A. I'm not sure I agree.

Q. The jury is still out?

A. That's correct.

Q. Okay. But in terms of explaining what

22 that method is, would you agree we've covered that

23 satisfactorily?

A. Yes, we have.

228

Q. All right. When you're talking about,

2 and I'm moving now to 2B, when you're talking about

3 conditions that are deemed more natural conditions,

4 I think I've used the term realistic. But when you

5 were first saying that with respect to the ChTM

6 method, can you explain for all of us what do you

7 mean by it's more representative or it's more

8 realistic or it reflects better natural conditions,

9 this slow heating method?

A. Well, again, this is -- I can only say

11 what the proponents claim.

Q. Oh, all right. I'm sorry. You're not

13 saying it. They are?

A. Yes. They are.

Q. And what -- Why are they saying that

16 it's the most representative of natural conditions?

A. Well, if I understand their logic,

18 they're saying that this very slow increase, it

19 allows the organism to adapt to this very slow

20 increases; in other words, acclimate to it. And

21 when you do get to the eventual expression of

22 lethality, that the organism has already acclimated

23 to the highest possible temperature, therefore, it

24 is a truer representation as opposed to the

229

1 incipient lethal temperature which is transferring

2 fish from one temperature to a higher temperature

3 immediately and subjecting them to that rapid

4 transfer into a different temperature. So they're

5 saying compared to that this slow heating is more

6 environmentally realistic.

Q. Right. Do you know whether the ChTM

8 slow heating method has been field validated in

9 terms of seeing whether or not it does simulate

10 better natural conditions? Only if you know?

A. No, I don't.

Q. Okay. I'm moving on to Question 4,

13 and I think we may have covered it. Give me just a

14 moment to look at it. I think you have said your

15 approach does give preference, that if you have ChTM

16 data as well as CTM or UILT, you would use the ChTM

17 data instead of using the CTM or UILT data?

A. Yes.

Q. Okay. Can you tell us, I'm looking at

20 Question 4A, as you noted previously, the

21 methodology is new, there are very few studies

22 available using the ChTM method. Can you identify,

23 if any of the data end points on which your thermal

24 criteria for the lower Des Plaines, better shown in

230

1 Tables 2 and 3 of your report, whether any of those

2 are based on the ChTM method?

A. Actually, in this case I don't

4 believe -- the only one that could possibly include

5 that would be walleye, and, of course, we were in

6 trials with that.

Q. Okay. So the only one that could

8 possibly be a ChTM method derived value would be for

9 walleye, and so we'd have to look and see whether

10 walleye drove any of the survival long- or

11 short-term values in Tables 2 and 3, okay. I won't

12 ask you to do that, try to do that right now. I

13 know it takes a little time.

Moving on to Question 5. I think

15 we've already covered 5A. Moving on to Question 6,

16 I think you've already done 6A, the rapid heating

17 method used in a CTM. Let me ask you, though, 6B.

18 If the CTM laboratory method, quote, does not

19 approximate natural conditions and produces

20 unrealistically high lethality end points, end

21 quote, as stated as Page 7 of the prefiled

22 testimony, why are such laboratory results included

23 in the data base used to derive thermal water

24 quality standards?

231

A. Well, we can -- We do have an

2 adjustment factor that can, as best you can equate

3 it, as to the more preferred end points, first of

4 all. The second issue is we really -- we get into

5 an issue where if we want data on as many species as

6 we possibly can have, then we have to use those

7 studies. Otherwise we start cutting into the

8 available species database.

Q. We'd have zeros in place of where it

10 says we have values in your Table 2 and 3 for

11 survival, long-term survival, short term?

A. Well, you'd have fewer RAS to base

13 this on.

Q. Oh, okay. All right. Now, given

15 that -- Well, strike that.

Today do you think the majority of

17 your survival long-term and short-term values that

18 are in your Des Plaines River report, Exhibit 15,

19 are based on the CTM derived data values?

A. I'm not sure. I'd have to do some

21 homework to determine that.

Q. I think we covered C. Yes. You did.

23 If this was a CTM derived value it was lowered by a

24 two degree safety factor.

232

Moving on to D. I think

2 you've answered D in part, but can you provide any

3 scientific citations supporting the application of

4 this rule of thumb two degree safety factor? Who

5 else besides you guys does this or thinks this is a

6 good idea?

A. I don't have it off the top of my

8 head. It is a practice we adhered to 30 years ago,

9 and I know it comes from -- it has a basis in the

10 literature. I don't want to guess at who that is.

Q. When you say it's a practice we

12 adhered to 30 years ago, who is the "we"?

A. At Ohio EPA. This is where the

14 methodology eminated from.

Q. Moving on to Question Subpart E,

16 Mr. Yoder. Do you understand the reference to the

17 published conversion methods for relating CTM values

18 to UILT values? Do you understand what I mean by

19 that in that question? Let me start with that so I

20 make sure you understand the question. Are there

21 published conversion methods for translating CTM

22 values into UILT value s?

A. I can't say yes or no to that. That

24 may be where that 20 degree safety factor came from.

233

1 Like I side, I'd have to go back and resurrect my

2 memory on that.

Q. Okay. And I think you've really

4 already told me on F you really can't identify

5 specific thermal criteria for the LDP, whether

6 they're based on the CTM studies or the UIT, UILT,

7 so I'll skip that. I mean I'll -- I think you've

8 already answered F. Can you provide any scientific

9 citations supporting your positions on the relative

10 merits of the UILT and CTM laboratory methods?

A. Well, the reference we cite for the

12 UILT being preferred is a publication, a compendium

13 produced by Brown in 1974.

HEARING OFFICER TIPSORD: For

clarification, the we, are you talking about

the Exhibit 16?

MR. YODER: Yes.

18 BY MS. FRANZETTI:

Q. Anything else that you can cite us to,

20 or is that it?

A. No. That's pretty much it, I think.

Q. Okay. Moving on thermal end points,

23 sublethal or chronic effects. Referring to the

24 bottom of Page 7 of your prefiled testimony,

234

1 describe -- I'm sorry. I think you have described

2 what is being measured in the following four end

3 points. Does anybody disagree with me on that? We

4 went through those four columns on his chart. Okay.

So moving on to 1A, is the MWAT

6 for growth a calculated value based on the optimum

7 temperature and the upper lethal temperature?

A. Yes.

Q. Okay. So does that mean really that

10 there are only three input parameters? In other

11 words, that's a calculated value. That's not

12 putting in study result values, correct?

A. No. But it's an input parameter in

14 the model.

Q. I understand it's an input parameter.

16 Okay. But in terms of it being an actual value

17 resulting from a laboratory method, it is not. It's

18 a calculated value?

A. Right. We've indicated that.

Q. Okay. Now, in B -- I'm sorry -- 1B,

21 Question: What do you mean when you state, quote,

22 "These four end points were condensed into three

23 input parameters for the fish temperature model by

24 combining optimum temperature and final preferendum

235

1 into a single input parameter"?

MS. WILLIAMS: Is this also on Page 7

do you think?

MS. FRANZETTI: I believe so, Counsel.

HEARING OFFICER TIPSORD: It's the

very first full paragraph on Page 7.

MS. WILLIAMS: I had the bottom of 7

on to 8.

HEARING OFFICER TIPSORD: I'm sorry.

MR. YODER: So what this says is we

did combine optimum temperature and final

preferendum, and I think we discussed this

earlier.

14 BY MS. FRANZETTI:

Q. I'm sorry. Would you indulge me,

16 because I really don't remember that part of your

17 testimony.

A. Yeah. When we explained the make-up

19 of the four columns in appendix table -- when we

20 were talking about the modified RAS options.

Q. Okay.

A. And we were talking about the outputs

23 of the model for that option, that it outputs an

24 optimum then after growth the UAT and the UILT and

236

1 we described the optimum then as a -- where we

2 collapse final preferendum data and physiological

3 optimum data measured by experimental tests.

Q. All right. Thank you. I'm sorry. I

5 forgot that. Moving on to C. Do we -- Excuse me

6 just a second. Perhaps your prior testimony

7 satisfactorily answered that question, too, or not.

8 We feel that's been responded to by the prior

9 testimony.

Moving on to G, fish temperature

11 model database. And give me just a moment because

12 we haven't been just staying with the script, and I

13 want to read these questions to myself and then

14 determine whether they need to be asked.

MS. DEXTER: Meanwhile, could I ask

how it's condensed so we have that.

MS. FRANZETTI: Oh, you don't think

that was answered?

MS. DEXTER: It's not fully clear to

me.

MR. YODER: Can you repeat that?

MS. DEXTER: I asked the question that

Susan was going to ask about how the

condensing happened in the optimum -- how did

237

you condense the values that you had within

the optimum category? Is it a ranking like

you did with the lethal temperatures, or is

it some sort of synthesizing those?

MR. YODER: Yeah. They're actually --

They're -- condensing might be a poor choice.

They're considered to be the same thing in

the model, okay? You can experimentally

produce an end point called the final

preferendum, you can also produce

physiological optimum as an experimental end

point. We just, we considered them to be the

same thing. We considered them all to be

under the optimum category in the model.

MS. DEXTER: And so you would go

through a process similar to the one we were

just discussing with the lethal temperatures,

where one is sort of preferred as another, or

you take the -- if you have multiple values

then perhaps there --

MR. YODER: We talked about this

morning, and what I recall is that we had

a -- I believe we preferred the final

preferendum. And if it was lacking, then we

238

went to some other.

MS. DEXTER: I know I'm the one that

asked that question before, and I just wanted

to make sure that I --

MR. YODER: I thought I remembered.

MS. DEXTER: I just didn't want to --

I didn't know if the condensed was different

than what we were talking about.

MS. FRANZETTI: I agreed with you.

She didn't.

11 BY MS. FRANZETTI:

Q. We'll jump to G3. I believe you've

13 answered questions 1 and 2 already. No. 3,

14 referring to Page 8 of your prefiled testimony,

15 explain the basis for your finding, quote, "That

16 join tolerant species are underrepresented in the

17 thermal data base which is dominated by tolerant and

18 intermediately tolerant species. Do you need my

19 help in finding this, anyone over there?

MS. DIERS: I have it. I just didn't

think he was looking at the right document.

MR. YODER: Well, the basis of my

knowledge of what species we have that we

were able to find any kind of thermal effects

239

data in those that went into the raw database

and knowing what the tolerance guilds those

species belong to. And it's also, I think,

something that's become very apparent to me

in 30 years of being involved in quality

management is a lot of the highly intolerant

species that exist in our rivers and streams

are, I'll say the word, grossly

underrepresented in these experimental data

bases. And there's -- I don't think anybody

did it on purpose. They're just extremely

difficult to culture and keep in the lab.

Some are hard to find, and it's a lot easier

to test traditional laboratory cultured

species or those that are amenable and it

tends to be the more tolerant organisms are

more amenable to testing, and that's where

the -- that part of our science hasn't really

gravitated to that. And so it's not just a

problem for temperature, it's a problem for

really a lot of parameters. But -- So that's

the basis for my conclusion.

Q. Thank you. That clarifies the

24 statement.

240

So can you go on, because in

2 that part of your testimony we're using these

3 phrases of tolerant, intermediately tolerant or

4 intolerant. And they actually are also boards that

5 are used here in the proposed use designations for

6 aquatic life. So while we have you here with your

7 experience, what is the basis for judging species as

8 tolerant, intermediately tolerant, or intolerant?

A. Well, my reference to that is directly

10 to how we assign guilds for things like the index

11 but tear right in the membership when we defined the

12 autocology of individual species for its application

13 for the syntheses, that is the tolerance ranking

14 that I'm referring to.

Q. And so can you tell us where -- what

16 the cut off is for tolerant on that indeces?

A. Well, I could tell you what species

18 make up highly tolerant, if that's what you mean.

Q. I'm sorry. I don't think I fully

20 understand how that indeces works. It is a listing

21 of species by these categories: Tolerant,

22 intermediately tolerant --

A. There are five categories that -- and

24 there are two tol -- there's a highly intolerant

241

1 metric and there's a highly tolerant metric. And so

2 species that are inherently assigned to one of those

3 guilds --

Q. Are you saying guilds? Spell the

5 word.

A. G-U-I-L-D-S.

Q. That's what I thought, okay. So

8 they're assigned to one of the guilds?

MR. SULSKI: Fraternities.

MS. FRANZETTI: You've been hanging

around me too long.

12 BY MS. FRANZETTI:

Q. And so that's how if, for example, if

14 a proposed rule used the phrase intermediately

15 tolerant species, one way I could figure out what

16 that means is to go to these listing of the guilds

17 and see the category called intermediately tolerant

18 and what species are listed there?

A. Well, I need to caution you something.

20 I don't know anything about that, what the rule

21 says.

Q. No. I understand you. I'm asking you

23 to assume the rule makes reference to intermediately

24 tolerant species, as well as intolerant,

242

1 endtolerant. And I want to try to understand what

2 that rule means. Is one way I might get some

3 insight is to go to these same -- these are the --

4 those categories or titles are used to describe

5 these guilds you're talking about in that indeces

6 and they list, underneath those titles, all the

7 species that are in that specific guild?

A. Yes. That's categorically the way you

9 would do it. I would caution you, though, my

10 definition of intolerant may not exactly match what

11 the rule has in mind. I have no way of knowing if

12 those are equal.

Q. I understand. I understand. I'm

14 actually trying to figure out how does one give some

15 clarity to the meaning of terms tolerant species,

16 intermediately tolerant. Because I -- one person

17 might put -- let me ask you this about the guilds.

18 Who decides who's in what guild?

MS. WILLIAMS: They have rushes.

MR. YODER: It depends on the process,

but usually this is done at the level of a

state agency. And if they've developed an

IBI, they have gone through that exercise.

243

1 BY MS. FRANZETTI:

Q. Oh, okay. So if a state agency has

3 developed what we call an IBI, then they may have

4 also -- or is it not may? They have created these

5 guild categories? It's part of the IBI?

A. Yes.

Q. All right. And so the people at the

8 state agency responsible for the development of the

9 IBI create the guilds and decide who's in which

10 guild?

A. (Nodding head.)

Q. Thank you.

A. Ideally, yes.

Q. Do you know -- given your experience

15 working for Ohio EPA, could I ask you whether you

16 know in Ohio EPA's IBI work, Mr. Yoder, was

17 temperature used to establish these guilds or was it

18 based primarily on other stressors?

A. It includes other stressors. It's

20 more of a general tolerance. It's not specific

21 necessarily to any one single parameter. It's more

22 of a general tolerance environmental change in

23 disturbance.

Q. All right. So temperature is not the

244

1 driving force for how you get into a guild?

A. Not directly, no.

Q. Okay. I think you've touched on this.

4 I may try to rephrase Question 5 a little bit to

5 reflect that. With respect to the intolerant

6 species, explain what you mean by the statement on

7 Page 8 of your testimony that available data

8 frequently include, quote, "Single species as

9 opposed to multiple studies for the tolerant species

10 that -- and the single species do not always produce

11 all of the thermal end points in the fish

12 temperature model." This goes back to when we were

13 talking about a bit of the bias you feel is in the

14 database and for tolerant species and a single study

15 may only exist for a given tolerant species. Is

16 that correct, Mr. Yoder?

HEARING OFFICER TIPSORD: Don't you

mean intolerant species, single -- single

study for intolerant species?

MS. FRANZETTI: Thank you.

MR. YODER: Is this a written

question?

HEARING OFFICER TIPSORD: It's

Question No. 5.

245

MR. SULSKI: Page 12, No. 5.

MR. YODER: I'm not keeping up.

Sorry. That was stated in the context of

intolerant species.

5 BY MS. FRANZETTI:

Q. Yes. And I'm sorry. As the hearing

7 officer corrected me, I may have misstated it as

8 tolerant.

A. Yes. That's -- I -- yeah, that's what

10 I said. Frequently you'll find for these intolerant

11 species only single studies and that may not include

12 all of the expiremental end points that might exist

13 more frequently for some of the more tolerant

14 species.

Q. Okay. And so for an intolerant, you

16 may, leading to our next critical question, you more

17 often need to extrapolate to get some of the thermal

18 end points you want to input into your data base?

A. That's true, yes.

Q. Okay. Do you want me to keep going?

HEARING OFFICER TIPSORD: Do you think

that question No. 6 in that segment has been

answered?

MS. FRANZETTI: Yes.

246

HEARING OFFICER TIPSORD: Then, no,

let's call it a day. Thank you, everyone.

We're in 9040 tomorrow again.

(Which were all the

proceedings had.)

* * * * * *

247

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF COOK )

I, LAURA MUKAHIRN, being a Certified

5 Shorthand Reporter doing business in the City of

6 Chicago, Illinois, County of Cook, certify that I

7 reported in shorthand the proceedings had at the

8 foregoing hearing of the above-entitled cause. And

9 I certify that the foregoing is a true and correct

10 transcript of all my shorthand notes so taken as

11 aforesaid and contains all the proceedings had at

12 the said meeting of the above-entitled cause.

___________________________

LAURA BERNAR, CSR

CSR NO. 084-003592