1 STATE OF ILLINOIS)

)

3 COUNTY OF C O O K)

4 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT - LAW DIVISION

6 IN THE MATTER OF:

)

7 WATER QUALITY STANDARDS AND

)

8 EFFLUENT LIMITATIONS FOR THE ) R08-9

9 CHICAGO AREA WATERWAY SYSTEM AND ) (Rulemaking -

10 THE LOWER DES PLAINES RIVER: ) Water)

11 PROPOSED AMENDMENTS TO 35 Ill. )

12 Adm. Code Parts 301, 302, 303 )

13 and 304.

)

TRANSCRIPT OF PROCEEDINGS had in the

16 above-entitled cause before Hearing Officer

17 Marie Tipsord, called by the Illinois Pollution

18 Control Board, pursuant to notice, taken before

19 Sharon Berkery, CSR, within and for the County of

20 Cook and State of Illinois, at the James R. Thompson

21 Center, 100 West Randolph Street, Room 9-040,

22 Chicago, Illinois, on the 1st day of February, A.D.,

23 2008, commencing at 9:00 a.m.

1 APPEARANCES:

ILLINOIS POLLUTION CONTROL BOARD:

Ms. Marie Tipsord, Hearing Officer

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

Mr. Anand Rao, Senior Environmental Scientist

Mr. Tanner Girard, Acting Chairman

Mr. Nicholas Melas, Board Member

Mr. Thomas E. Johnson, Board Member;

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

Ms. Stefanie Diers

Ms. Deborah Williams

Mr. Robert Sulski

Mr. Scott Twait

Mr. Roy Smogor

Mr. Howard Esaig;

THE NATURAL RESOURCE DEFENSE COUNSEL:

Ms. Ann Alexander;

1 APPEARANCES (cont'd.)

ENVIRONMENTAL LAW AND POLICY CENTER,

33 East Wacker Drive

Suite 1300

Chicago, Illinois 60601

312-795-3707

MR. ALBERT ETTINGER

MS. JESSICA DEXTER;

appeared on behalf of ELPC, Prairie Rivers

Network, and Sierra Club;

FRANZETTI LAW FIRM, P.C.,

10 South LaSalle Street

Suite 3600

Chicago, Illinois 60603

312-251-5590

MS. SUSAN FRANZETTI,

appeared on behalf of Midwest

Generation, L.L.C.;

1 APPEARANCES (cont'd.):

HODGE DWYER AND ZEMAN,

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705

217-523-4900

MR. THOMAS SAFLEY,

appeared on behalf of the Illinois

Environmental Regulatory Group;

SONNENSCHEIN NATH AND ROSENTHAL, LLP,

7800 Sears Tower

Chicago, Illinois 60606

312-876-7934

MR. JEFFREY FORT,

appeared on behalf of Citgo;

1 APPEARANCES (cont'd.):

MAYER BROWN LLP,

71 South Wacker Drive

Chicago, Illinois 60606

312-782-0600

MR. THOMAS W. DIMOND,

appeared on behalf of Stepan and Company;

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

CERTIFICATE NO. 84-4327.

HEARING OFFICER: All right. Let's go

ahead and start. Good morning, my name is

Marie Tipsord. And I've been appointed by

the Board to serve as the hearing officer in

this proceeding, entitled Water Quality

Standards and Effluent Limitations For the

Chicago Area Waterway Systems and Lower

Des Plaines River. Proposed amendment to 35

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

No. R08-9.

To my right is Dr. Tanner Girard,

acting chair and the lead board member

assigned to this matter. Also present to my

far left is board member Thomas Johnson and

to his immediate right is Alisa Liu from our

technical staff.

And I would note that Anand Rao

and Nicholas Melas are both caught in

weather, as we can relate.

MS. WILLIAMS: So are two of our

witnesses, Robert Sulski and Howard Esaig.

We expect them, hopefully, within the half

hour.

HEARING OFFICER: Same trains, huh?

MS. WILLIAMS: No, different train but

same storm.

HEARING OFFICER: All right. With

that, I believe -- there's Mr. Melas right

now. We are ready to start again with

questions of Mr. Yoder on Attachment S. I

remind all witnesses that they are still

sworn.

CHRIS YODER,

10 called as a witness herein, having been previously

11 duly sworn and having testified, was examined and

12 testified further as follows:

EXAMINATION (Resumed)

14 BY MS. FRANZETTI:

Q. Good morning, Mr. Yoder.

We are going to continue talking

17 about the QAPP that was used in connection with the

18 field study performed that resulted in the data

19 contained in Attachment S. And bear with me for a

20 moment because I have lost track of what exhibit

21 number the QAPP is.

HEARING OFFICER: Five? No.

MS. FRANZETTI: Eight. Okay.

1 BY MS. FRANZETTI:

Q. So turning to -- if you would turn to

3 Page 5 of Exhibit 8, and at the top of the page the

4 last sentence in that carryover paragraph it states,

5 "The principal focus of this study is on the fish

6 assemblage and an accompanying qualitative habitat

7 assessment."

Does that accurately describe the

9 two main purposes of this project?

A. Yes.

Q. With respect to fish assemblage, is a

12 way to generally explain what that includes is

13 looking at both the types of species of fish and the

14 prevalence or quantity of fish that are in the study

15 area?

A. Yes. It's to assess the relative

17 abundance by species and also to note their relative

18 size of condition.

Q. And with respect to the second

20 purpose, the qualitative habitat assessment -- and

21 is another way to state that the project was

22 studying and evaluating the quality of the habitat

23 in the study area?

A. Yes.

HEARING OFFICER: Excuse me,

Mr. Yoder, is that microphone on?

THE WITNESS: No, it's not.

HEARING OFFICER: I didn't think I was

hearing you.

6 BY MS. FRANZETTI:

Q. Would you like to sing a few bars for

8 us?

A. I don't think you would all appreciate

10 that.

HEARING OFFICER: This is the only

volume control.

13 BY MS. FRANZETTI:

Q. Mr. Yoder, moving just below that

15 sentence to the next caption Biological Assessment

16 of Nonwadable Rivers. The first sentence says,

17 "Lower Des Plaines River qualifies as a nonwadable

18 river in terms of which biological sampling methods

19 are the most appropriate."

Can you explain briefly why the

21 fact that it qualifies as a nonwadable river then

22 makes certain biological sampling methods

23 appropriate?

A. By defining it into these categories,

1 nonwadable, obviously, is elongated continuum from

2 wadable to nonwadable as flowing waters become

3 larger. So that dictates the type of sample

4 equipment that you use and also protocols and

5 methods that you would follow to secure a

6 standardized sample.

Q. So the methods change, the bigger the

8 water body gets as we go from a small wadable stream

9 to --

A. Yeah, the sort of the simple dichotomy

11 is if you can sample a water body effectively by

12 actually wading in the water body versus not being

13 able to do that, and, therefore, needing a boat

14 platform to work from.

Q. And now later on in that same

16 paragraph it says, "What can be agreed upon by most

17 is that the development of biological assessment

18 tools, particularly those focused on assessments of

19 condition and status, has lagged behind the

20 development of wadable stream methods."

So in the area of nonwadable

22 rivers, is this a developing area of technique in

23 terms of evaluating the quality of habitat? Can you

24 put this in some perspective for us?

A. Well, the perspective would be, to

2 give you sort of a time frame of reference, would be

3 help most states and U.S.EPA have addressed

4 biological assessment over the past 35 to 40 years.

5 And when bio assessment programs were in their

6 initial development, and again with reference to

7 state programs, the emphasis was on smaller streams

8 primarily because they're easier to get to and so

9 on.

But I think in the -- so that's

11 sort of within the frame of reference from sort of

12 EPA driven water quality programs, it doesn't

13 necessarily mean that we don't know anything about

14 it. And nothing has been done over that time

15 period.

Q. Well, moving on to the next paragraph,

17 does this start to put it in, perhaps, better

18 perspective? It talks about, I think, just what

19 you're mentioning, that biological assessments have

20 been done on large nonwadable rivers in the U.S.

21 since the late 1940s. So that's what you're

22 referring to we've been doing this for a long time;

23 correct?

A. Yes. In the general category of

1 biological assessment.

Q. And then, the tail end of that

3 sentence notes the caveat that the inclusion of the

4 fish assemblage, being a rare and relatively recent

5 addition. So is that the part that is more recent

6 and more in a developing stage is the -- is trying

7 to use these methods in nonwadable rivers to assess

8 the fish assemblage?

A. Well, with respect of what was going

10 on in the 1940s, a lot of this fish assessment work

11 early -- the pioneering work was done on the Wabash

12 River by Jim Gammon. And the references are there

13 and that work initiated in late 1970s -- I'm sorry,

14 the late 1960s, and proceeded through the 1970s and

15 '80s. And so, that work has been there for almost

16 30 years now -- more than 30 years.

So the statements are in reference

18 to the -- sort of the history.

Q. Okay.

A. Bio monitoring in rivers.

Q. Now, actually, Mr. Gammon's work is

22 referred to in the very next sentence. And there's

23 a term there that -- could you explain to us what

24 are single gear assessments?

It says, "Single gear assessments

2 are even more recent?"

A. Well, that's where -- it's possible to

4 use multiple sampling gear to collect fish. And I

5 think there was the school of thought early on that

6 in order to effectively sample these water bodies

7 you had to use multiple gear types, which was more

8 time consuming, more costly and certainly didn't fit

9 the sort of the universe of needs for doing a lot of

10 bio assessments.

So I think Gammon's work kind of

12 showed that electro fishing produced the majority of

13 the species and it produced a consistent sample

14 enough that you could assess rivers with one

15 sampling gear type, and therefore, you could get to

16 more places and so on.

Q. Then, a little further on, it says, "A

18 common frustration with these studies was the lack

19 of a standardized approach to data collection and

20 the absence of a conceptual framework for analyzing

21 the data and producing meaningful and consistent

22 assessments."

Is that just basically getting at

24 the point that different people doing these studies

1 might use different approaches and different forms

2 of analysis of the data?

A. That's also a reference to the

4 sentence before, which referred to the numerous

5 Section 3316(a) of the Clean Water Act,

6 demonstrations that were being done during that time

7 period. And there, frankly, was a gross lack of

8 standardization in the studies. And so, that's

9 mainly what that is commenting about.

Q. And now, moving forward, I think both

11 in time and lower in the paragraph, it says, "Ohio

12 EPA" -- and it cites 1987, '89, "developed fully

13 standardized methods and an IBI for nonwadable

14 rivers and used it to support the long-term

15 assessment of rivers."

Is this Ohio EPA standardized

17 methods approach, what was used to perform this

18 study that resulted in the attachment S information

19 or data?

A. Yes. That's the baseline from which

21 the methods we applied emanate from, basically, yes.

Q. Did you make any modifications to the

23 Ohio EPA standardized method in doing this work?

A. In terms of the fish sampling, the

1 only modifications would have been made are just

2 sort of the logical updates that occur with the

3 science, like the nomenclature of species and that

4 type of thing. As far as a the QHEI, we have made a

5 couple of modifications to the QHEI to better adapt

6 it to the assessment of large nonwadable rivers.

Q. Would you go ahead and identify or

8 explain the modifications you made to the QHEI?

A. Right. The Ohio EPA's used the QHEI

10 for many years to assess habitat in nonwadable

11 rivers.

But the genesis of all this work

13 really emanates from smaller wadable streams. So we

14 just felt -- and this is based on another project

15 that we did in New England, where we encountered

16 numerous impoundments in rivers, flowing rivers.

And we just did not feel the QHEI

18 was adequately addressing some of those

19 modifications. So we modified, I believe, two

20 metrics to include an impoundment affect. And we

21 adjusted the scoring.

What was -- especially in one,

23 what was happening, it was getting the full score

24 because it wasn't channelized. And yet, it was a

1 modification that, in many ways, can be analogous to

2 many of the affects of channelization.

So we implemented that on a pilot

4 basis in Maine and then we are in the process of

5 adapting it to the work we are doing in the Midwest.

MS. FRANZETTI: I think maybe it might

help to illustrate these modifications to the

QHEI that you're talking about. Could I ask

you, Ms. Williams, or Diers to put in front

of Mr. Yoder Exhibit 7, which are the

Qualitative Habitat Evaluation Index Field

Sheets?

MS. DIERS: He's got it.

MS. FRANZETTI: Okay.

15 BY MS. FRANZETTI:

Q. Mr. Yoder, can you --

MS. FRANZETTI: Well, first, I'm not

sure we've established on the record by

Mr. Yoder what these are.

20 BY MS. FRANZETTI:

Q. Would you please identify what

22 Exhibit 7, Mr. Yoder?

A. Yes, these are copies of the original

24 field sheets or data sheets for the QHEI that were

1 completed by our MBI crews on the Des Plaines in

2 2006.

Q. Okay. And can I -- I'm going to ask

4 you just a few more basic questions on these before

5 I go back to the QHEI modifications topic. And

6 these are sheets that are actually filled out in the

7 field; correct?

A. Yes, they are.

Q. All right. And is one of these

10 sheets -- which looks like it entails both the front

11 and back of the page; correct?

A. That's correct.

Q. One of these is done for each of the

14 sampling locations in the field?

A. Yes.

Q. All right. And who fills these out?

What do we call that person?

A. The field crew leader.

Q. Okay. And in terms of knowing where

20 this sampling location was, we've referred to the

21 information at the top, like river code is RM, River

22 Mile?

A. Yes, that's River Mile.

Q. And then Stream is the name of the

1 stream? And in this case, on the first sheet it's

2 Des Plaines Grant Creek?

A. Yes.

Q. What's the station ID? And on this

5 one it's DP-10.

A. It's another way of referencing the

7 station.

Q. But is that just an internal numbering

9 system that your crew comes up with?

A. Yeah, I believe it is.

Q. All right. Like a sample ID?

A. Like a sample number, right.

Q. Okay. Then, of course, the date this

14 was done. In this case July 23rd, 2006 score, is

15 that the actual field person who is doing the sheet?

A. Yes. They use their initials.

Q. And then we have the latitude and

18 longitude data for where the location is?

A. It's at the center point of the site.

Q. All right. Now, there's a number of

21 sections on this form.

On the first page, there's

23 sections numbered 1-5. I don't want you to go

24 through and explain every entry on this -- on this

1 form, but could you highlight where on this form the

2 QHEI modifications you were explaining to us are

3 incorporated?

A. I think to do that it might be good

5 for me to do a summary. Is that okay?

Q. Oh, absolutely. That's fine.

I just wanted to make sure you

8 understood I was not asking -- my question did not

9 involve requiring you to explain every box and every

10 term on this form.

A. Okay. The index is made up of

12 observed measurements of different attributes of

13 habitat. And these attributes of habitat are known

14 to be important to the variety of species that exist

15 or could exist. So it consists of the bottom

16 substrate, the composition, the types of substrate

17 and the quantity of that substrate and the condition

18 of that substrate.

The second category is in stream

20 cover, which is the amount of cover that's

21 available. And again, this is done with respect of

22 what do the biological organisms require for living

23 space.

The third is channel morphology,

1 which gets at the meandering of the river as it's

2 following a natural fluvial pattern, what's its

3 development with respect to, in the Midwest, the

4 baseline is a pool run, ripple-type of sequence.

5 The influence of modifications, such as

6 channelization -- and this happens to be the metric

7 that we inserted and impounded -- category of the

8 site is affected by the ponding of the river by an

9 artificially constructed dam, then it is checked as

10 being impounded.

Q. Now, Mr. Yoder, just to make sure

12 everybody sees what you're talking about, because

13 there are a lot of boxes on this form, you're in

14 Section 3, about almost midway down, Channel

15 Morphology. And underneath that, going over three

16 columns to channelization. And at the very bottom

17 of that I see a box Impounded Minus 1.

Is that the addition -- the

19 inclusion of that reference to impounded?

A. Yes.

Q. And the minus one being in terms of

22 the scoring that is done, you subtract the score of

23 one?

A. Yes.

Q. So if we were at ten, we'd be at nine

2 if we checked that box?

A. That's right.

Q. Okay. I just wanted to make sure

5 people understand how it works.

A. Yeah, I forgot to mention the scoring

7 works. Each individual attribute has a number

8 behind it in brackets, and that contributes to the

9 total score.

The cumulative result of

11 everything that's checked ends up as a total index

12 score.

Q. And that's supposed to go -- that's

14 what those boxes down at the right-hand side of the

15 form are? You're supposed to total across, like

16 under three, total across all those columns and put

17 it in that final box that says "channel"?

A. Yes. And those would be the

19 individual metric scores, and then the index score

20 would be the sum of the metric scores.

Q. Okay.

A. Did you want me to continue on?

Q. Yes. Why don't you.

A. Okay. The fourth one is the Riparian

1 Zone, which is the immediate land water interface

2 that can also influence the habitat.

The 5th one is called pool glide

4 and run, ripple quality. The -- and the last one is

5 a gradient, which is the amount of slope that the

6 surface of the stream has over distance. And that

7 is a calculated -- that's calculated off of a map.

The other metric that was effected

9 by the recent modifications is under the -- under

10 No. 5, under Morphology. And an impounded category

11 was added to that.

So those are the modifications

13 that have been -- that we have implemented --

Q. And --

A. -- in our project.

Q. And again, that's to the QHEI, as set

17 up by Ohio EPA. That's what you're modifying?

A. Yes.

Q. A question on this impounded scoring.

20 It just -- it strikes me as a little low to just

21 take off one point because something is impounded.

Can you explain to me why, just

23 deducting one point from the QHEI score is

24 appropriate for addressing an impounded water body?

A. Well, to answer that question, I've

2 got to explain how the scoring works when you do

3 have a modification versus a more natural system.

4 So if we could look at the channelization

5 subcategory under Metric 3, Channel morphology.

That is the lowest score a site

7 can get if it's impounded. The alternative without

8 that would have been to check none, which was why we

9 saw the disconnect in this.

So we -- you have to understand

11 that the paradigm came from wadable streams, and

12 channelization is the -- typically, especially in

13 the agriculture areas, where the wholesale of

14 dipping the stream, straightening bank to bank,

15 that's our definition of channelization. I know

16 we've talked about that in this hearing.

Q. Uh-huh.

A. But when you get in large rivers, it's

19 kind of difficult to find large rivers that have

20 been dipped out bank to bank in a same -- with the

21 same sort of macro impact that a small stream would

22 undergo. And in our observations of doing this work

23 in many places across the Midwest and in New

24 England, it became pretty clear the analog to that

1 type of modification is an impoundment.

So that's why we made that change.

3 And I think there were some notion that, among Ohio

4 EPA, who we stay in touch with and still do combined

5 training with, that, yeah, the scores for impounded

6 areas were probably not -- maybe a little overrated,

7 that type of thing.

So it isn't something we just

9 stumbled on last year, we've kind of known about

10 this for a long time. And I think it became more

11 apparent to MBI because our work is in more places

12 and also it's more research oriented.

Q. A question on -- stay in that Section

14 3, Channel Morphology. All -- over to the right

15 under the heading Modification/Other. And I -- you

16 know, I see entries in there that include dredging,

17 impound, bank shaping, one-side channel

18 modifications, but I don't see any scores next to

19 them. What's the purpose of that section?

A. It's ancillary, it doesn't contribute

21 to the scoring. And it's there, if the crew leader

22 wants to make those observations, that's fine.

But what really matters is are

24 they checking the ones that score. So under

1 channelization you've got an impoundment check,

2 okay, they didn't check impoundment under the other

3 one, that's kind of obvious.

Q. And at the end of this, when this form

5 is filled out, and totaled, we get the QHEI scores

6 that we have heard testimony about in this hearing

7 that are used to help make the determination as to

8 whether or not a given water body meets the aquatic

9 life goals of the Clean Water Act; correct, that's

10 one used for these scores?

A. Yes, to determine potential.

Q. And these are the scores that we've

13 heard testimony about that, up to a score of 45,

14 most people would agree it doesn't attain Clean

15 Water Act goals from 45 to 60. I think it was

16 termed gray area, there can be disagreement and then

17 typically a score of over 60 would be deemed a

18 location that does meet Clean Water Act goals.

Is that an accurate summary

20 generally of these?

A. I think it is, yes.

Q. Okay. Is a part of why -- now that

23 we've all had the benefit of seeing the form, is a

24 part of why that 45 to 60 range is termed "gray

1 area," is because there are judgments that are made

2 in filling out this form, and hence affect the

3 scoring to some degree?

Because I see, for example, under

5 Channel Morphology, you know, poor versus fair. I

6 might think it's poor, the next crew leader might

7 think it's fair, and changes like that similarly

8 under Substrate, you know, silt moderate, silt

9 normal, potentially reasonable minds can differ.

So is that a part of why that 45

11 to 60 range is termed gray area?

A. No.

Q. No. Why doesn't this -- well, let me

14 ask you.

Do you disagree with me that there

16 is no room for some subjective judgments in filling

17 out these QHEI forms?

A. Well, I don't necessarily disagree

19 with that, no.

MS. WILLIAMS: At this point, I think

it might be useful for the record to explain

how someone gets trained to use this

methodology?

MS. FRANZETTI: If counsel wants

him --

MS. WILLIAMS: I mean, I'd like to

have redirect at this point to explain first

how you get trained to using this

methodology.

THE WITNESS: Well, the Ohio EPA

requires user to be trained to undergo their

training. There's two levels of training,

and it's now done under the auspices of the

Ohio credible data log.

And so, to use this in an official

capacity in Ohio, you have to be what's

called a Level III Qualified Data Collector.

You'd have to undergo the training.

And there's also a Level II

training, which -- it's not any less rigorous

from the QHEI, it doesn't require the level

of biological efforts the Level III does.

But regardless, our stronger recommendation

is that any users of the QHEI undergo that

training.

And the goal of the training is to

eliminate, as much as possible, the

subjectivity that was referred to. Because

it is true that untrained users could

disagree about an adjacent category,

especially when they're qualitative.

But those are explained, and

people are trained in visual recognition.

And the goal is to have users recognizing

what they see in the field the same way.

And this is been tested by --

Mr. Rankin, he has a published paper on it,

where the training increased the

reproducibility of the scoring. So the

training is crucial, that users undergo this

training.

14 BY MS. FRANZETTI:

Q. Mr. Yoder, can we just finish up on

16 the back of the form? What's the nature and purpose

17 of the information that is to be completed on the

18 back of the QHEI field data sheet?

A. Again, none of this weighs into the

20 scoring. But these are -- it's the field crew

21 leader's opportunity to make whatever notes about

22 the site that they wish to make.

We do require them to do these

24 maps, a very general map of the site. These are not

1 to scale, they're hand drawn in the field. And it's

2 just to get some indications of the major features

3 of the habitat.

There's also sort of a subjective

5 rating. Everybody has an impression when they see a

6 place, what's -- and that is not factored into the

7 score and it's nothing that we use.

But it's something we record

9 and -- what we tend to do is to -- we tend to record

10 as much information out there that we think might be

11 informative at some later time, so we could go back

12 and analyze it. That type of thing, so...

Q. So the subjective rating is the field

14 person's subjective opinion of on a scale of 1 to

15 10, "I think this is a 5"?

A. That's right.

Q. Okay. And the esthetic is similarly

18 based on --

A. Well, esthetics is more like, you

20 know, is this a nice place to be.

Q. Yeah, is it pretty?

A. But from a -- you know, a natural

23 resource kind of recreational setting. And, like I

24 say, we don't use it, we collect it and maybe some

1 day somebody will compile it all and get something

2 out of it.

The major suspected sources of

4 impacts, those are just based on what the person

5 sees or knows about the location. And again,

6 it's -- it doesn't have a -- you know, we can always

7 go to other sources to verify and make that more

8 precise.

So that's really what the back of

10 the form is for.

Q. Okay. Mr. Yoder --

HEARING OFFICER: Ms. Franzetti?

Do you have some redirect?

DR. GIRARD: I just have some

follow-up before we get off of these data

sheets.

MS. FRANZETTI: Go right ahead, that's

fine.

19 BY DR. GIRARD:

Q. Mr. Yoder, I have a question about

21 this. So when this data sheet was filled out by AA,

22 was he in a boat in the middle of the river and made

23 all these observations and filled out the sheet

24 while he was out in the middle of the river?

A. No. This is completed by the crew

2 leader after they complete a 500 meter electro

3 fishing zone, which is conducted along the shore

4 line. So after -- and that gives him and the crew

5 an opportunity to see all of the habitat features

6 that they encountered in that might affect the

7 biological samples that they collected.

So that's the other part of this,

9 is that we -- we really prefer this be done in

10 support of a fish collection or a fish sample, that

11 it's there to support the interpretation of

12 biological data. It can be used as a stand-alone

13 tool, but we really prefer that it be done in

14 support of a bio assessment.

Because that's really where its

16 linked in terms of the thresholds of quality that

17 were talked about. Those thresholds really relate

18 to the certainty we have that if everything else in

19 terms of quality is okay, that this places a

20 potential to support a type of biological assemblage

21 that equates to a specific designated use. So it

22 becomes very important.

And in Ohio, it's part and parcel

24 of routine use attainability analysis. Because you

1 have to answer the question if the biology is

2 impaired, the next question becomes does this have

3 the habitat to potentially support a biological

4 assemblage that can attain that designated use for a

5 hearing.

Q. When the crew chief gets back to the

7 lab, do they double check any of their estimates and

8 look at aerial photographs or any other information

9 to sort of double check some of their decisions?

A. Yeah, that can be done. And we, in

11 specific places, have to do that.

It's generally being in the field.

13 And in this particular survey, they were out there

14 twice.

They were out there on two

16 different occasions, I believe, at -- if not all the

17 sites, at most of the sites. And so, they have two

18 opportunities to see that and to make notations on

19 the return visit as well.

Q. So just for example, if we go to No. 4

21 on the front page of the sheet here. You know, I'm

22 looking on the Des Plaines Grant Creek at the top of

23 sheet on Exhibit 7.

No. 4, the Riparian Zone and bank

1 erosion, if we're looking at the first column on the

2 the left Riparian width, and they're estimating the

3 width of the Riparian zone on either the left or

4 right bank, when they're in the boat on there in the

5 river and they decide there's more than a hundred

6 meters of Riparian Zone on the left bank, when they

7 get back to the lab, they might pull out an aerial

8 photo and double check whether their estimate has

9 some other basis.

A. Yeah, that would be a place where it

11 would -- that kind of follow-up would be useful.

DR. GIRARD: Thank you.

13 BY MR. MELAS:

Q. Mr. Yoder, this is just a curiosity

15 question. When you talked about impoundment, you

16 used the adjective "manmade dams."

I'm sure in the pristine state of

18 these rivers in the Midwest, there were many dams

19 built by the beavers and there were natural

20 impoundments. In your experience now, have you ever

21 noticed here in the Midwest any remnants of these

22 beaver colonies, or have the European ladies in

23 their desire for beaver hats completely eliminated

24 them?

A. No. That occurs more in smaller

2 streams, wadable streams.

Q. Yeah, it would have to.

A. Yeah. And what -- there are beavers

5 on large rivers, but they tend to be what we call

6 bank beavers, they build their dens in the bank,

7 they don't require a dam.

The reason a beaver builds a dam,

9 so it can have a lodge and have a secure place. But

10 on a large river, they can secure that by

11 building -- they can dig a den in the bank or pile

12 wood up along the bank and have --

Q. On the smaller rivers they can

14 actually impound the streams, smaller streams?

A. Small streams. I don't think they can

16 impound a river, like --

Q. No, not on rivers, streams, smaller

18 streams?

A. Yeah. On small streams, on the small

20 end of wadable.

I think it's just not a -- it's

22 not feasible for them to impound a nonwadable river

23 that much. And they adapt to it by denning in the

24 bank.

MR. MELAS: Thank you.

HEARING OFFICER: Can we have somebody

close the door, if you don't mind?

Thank you.

DR. GIRARD: Let me just -- if you

don't mind, ask another --

MS. FRANZETTI: Oh, no. Absolutely.

I've gotten plenty of my time.

9 BY DR. GIRARD:

Q. Mr. Yoder, going, once again, to this

11 top page of Exhibit 7, look at No. 1 Substrate Type.

12 Now, when they're out there in the boat and they're

13 doing electro fishing and they're observing

14 substrate type, do they -- is it just the

15 identification of a particular type in that area,

16 whether it's present or absent, or is it -- they're

17 making some decision about relative amounts of

18 different types of substrate? What's the -- what

19 kind of decision do they make on where to check?

A. Well, the checkmarks under -- in this

21 case it was all pool, there was no ripple. Those

22 check marks are just presence of that type of

23 substrate.

Q. So do they do any kind of sampling

1 with any kind of equipment as they go across the

2 stream?

A. No, but they are -- when they're

4 dipping fish, they have long dip nets. And they

5 can -- they can probe the bottom, or they can

6 actually scoop out parts of the bottom and get a

7 feeling for what kind of substrate is present.

And there's quite a few habitats

9 that do rely on using a rod to probe the bottom, and

10 you develop a feel for what kind of substrate you're

11 hitting, without having to bring it up and

12 do vertical -- and then the two most predominant

13 substrates are checked, and that's what contributes

14 to the part of the score. The other score

15 contributes to how many substrate types there are.

If there are fewer than a certain

17 threshold, then a certain score is given, there's

18 more numbers to look at. So that's how it's done.

Q. Okay. So it's -- you're saying they

20 don't use a pole, it's generally what they stir up

21 with their nets?

A. Well, it's sort of the equivalent of

23 using a pole. These nets are, you know, eight feet

24 in length.

Q. Okay. And I do have a specific

2 question here on this first page on Exhibit 7.

3 Under No. 1 Substrate Type.

I see you have a check in the left

5 hand column for cobble. Now, are you saying that if

6 there's a check on the left-hand side in those

7 boxes, you're only going to check the two most

8 common types, or -- I'm trying to understand where

9 the different checks are.

Obviously, if you have a check for

11 cobble on the left-hand side of the left-hand box

12 and then a check over on the right-hand side of it

13 in the pool area, that means the cobble was in the

14 pools. But I'm trying to understand why there are

15 two square boxes on the left of the cobble.

A. Because there's two things that

17 contribute to the score. One is just the number of

18 different substrate types that were checked, and

19 then the two most predominant substrate types are

20 also checked. So that also contributes to part of

21 the score as well.

Q. So that would be the left-hand checks

23 in the boxes are the two most predominant?

A. Yes.

Q. So it would be -- you had cobble in

2 some pools and then looking over to the next column,

3 you have silt also if some pools. So those were the

4 two most predominant types?

A. And that's worth ten points when you

6 add those together.

Q. That's worth ten. Okay.

DR. GIRARD: Thank you.

MS. FRANZETTI: Dr. Girard, can I ask

a quick question?

DR. GIRARD: Yes. Go ahead.

12 BY MS. FRANZETTI:

Q. Does there need to be a certain

14 minimum percentage of any of these things present at

15 the location to get a check?

A. It -- roughly, the rule of thumb is

17 roughly about 5 percent. But it's also in the

18 judgment of the biologist what's important to --

19 what's biologically important.

Q. What's biologically important for that

21 location?

A. Yeah. For any location. What's

23 biologically important to the organisms.

And the two most predominant

1 substrate types together, it's roughly making up

2 what's 80 percent of the substrate, I believe is

3 what the guidelines -- this is all specified in the

4 methods, so it's transparent.

Q. And staying again in that general

6 area, the form and the substrate area, below the --

7 I guess it's the second column of type,

8 underneath -- down the column from Gravel. The

9 gravel is at the top of -- we get down to the number

10 of substrate types.

So that's where -- I don't know.

12 I'm sorry, would you explain to me how you determine

13 whether three or less is checked or four or more?

A. It would be the number of check marks

15 under the Pool and Ripple column of each substrate

16 type.

Q. That's what I was thinking, except --

A. You got me.

Q. -- aren't there five checks up above?

A. Yeah, well, silt doesn't count. But

21 there are four or more, so that should have been

22 a -- that's just a accounting issue --

Q. Okay.

A. -- after the sheet is filled out.

Q. Okay. Although counting does seem to

2 be important for purposes of the QHEI?

A. It does. We can fix that.

4 BY DR. GIRARD:

Q. Why doesn't silt count?

A. It's -- silt is not biologically a

7 good substrate, in fact it can be detrimental.

HEARING OFFICER: Mr. Diamond, do you

have a follow-up?

10 BY MR. DIMOND:

Q. Well, if silt is detrimental, why does

12 if have a count of two on it?

A. It's a natural substrate, but we

14 just -- we do not -- we chose not to count it as

15 part of the total substrate type. And that's the

16 way it's set up.

17 BY DR. GIRARD:

Q. Just for the record, can you explain

19 to me the difference between muck and silt?

A. Muck is more of an organic derived

21 substrate, dead plant matter. Or soil that has a

22 high cubic content to it.

Silt is pretty much mineralized, I

24 mean, it's made up a lot of clay material. And

1 that's what causes it to be detrimental, because it

2 sticks to everything.

So in excessive amounts, it can be

4 detrimental. A lot of nonpoint source problems when

5 you hear nonpoint due to sedimentation affects, due

6 to excessive siltation.

DR. GIRARD: Thank you.

THE WITNESS: I want to correct

myself. I have to look at the manual to

verify what we do with silt. I just recall

that's what we did. But I would need to read

our manual to verify that for you.

MR. DIMOND: This is Tom Dimond. I

didn't identify myself earlier.

15 BY MR. DIMOND:

Q. What manual would you read?

A. There's a method manual that goes with

18 this. There's an instruction, you know, like

19 performing the method.

And I would need to consult that

21 to tell you for sure what we do with silt.

Q. And the method manual is something

23 different than the QAPP that's identified as Exhibit

24 8?

A. The -- I believe it's appended to the

2 QAPP. So I can -- I can look in the back of the

3 QAPP.

Q. Okay.

A. I believe it's Appendix A of the QAPP.

6 Oh, it's Appendix 1.

HEARING OFFICER: Appendix 1 to

Exhibit 8.

MR. DIMOND: Okay.

HEARING OFFICER: Ms. Franzetti, you

can go ahead.

MS. FRANZETTI: Okay.

13 BY MS. FRANZETTI:

Q. Mr. Yoder, do you also have in front

15 of you, what were termed the fish data sheets the

16 other day that were produced at the end of yesterday

17 by the Illinois EPA counsel?

HEARING OFFICER: Which have not been

marked as an exhibit.

MS. FRANZETTI: Right. That's what I

wanted to do. We have copies now? Great.

22 BY MS. FRANZETTI:

Q. Mr. Yoder, what are these fish data

24 sheets that you have in front of you?

A. These are copies of the data collected

2 from the electro fishing sampling that was done in

3 2006.

Q. And so, these are the field sheets

5 filled out for the part of the study that was to

6 assess the fish assemblage in the lower Des Plaines?

A. Yes.

MS. FRANZETTI: With that, I would

move to have the fish data sheets introduced

as Exhibit 20.

HEARING OFFICER: Is there any

objection?

Seeing none, we'll mark it as

Exhibit 20.

(WHEREUPON, a certain document was

marked as Exhibit

No. 20 for identification, as of

2/1/08.)

HEARING OFFICER: Dr. Girard has

another question on the QHEI.

DR. GIRARD: Sorry. Before we get too

far away --

MS. FRANZETTI: Go right ahead.

DR. GIRARD: -- I just have one final

question.

2 BY DR. GIRARD:

Q. Mr. Yoder, after you get done marking

4 your exhibit there, real quickly, I didn't realize

5 we were going to move off the QHEI sheets, but if

6 you could go back to Exhibit 7, you've got your copy

7 there, just one quick question here.

If I look at the second page in my

9 compilation, hopefully it's the same as yours, but

10 for the stream it just says at the top "Des Plaines

11 Location, DST Lemont Road." Do you see that one?

A. Yes.

Q. Well, at the top, there was a little

14 note that says "Edited January 11th, '08," with some

15 initials. And if I look at the third page, it's

16 barely legible, but it says, "Not edited," also with

17 the date. And I think it's probably January 11th,

18 '08 at the top. And that one was a stream

19 Des Plaines, but the location has been erased.

What does it mean that these

21 sheets were edited on January 11th or not edited?

A. That's when we went back and added the

23 impoundment to these.

Q. Okay.

A. Because we're in the process of

2 updating all the of our data, and we haven't gotten

3 to these yet by that time. So any time a change is

4 made to a data sheet and then eventually to the

5 database, the change is noted on the original data

6 sheet and initialed by the person who do that on our

7 staff.

Q. So the only changes at that time were

9 in adding the impoundment?

A. Right. And this particular site, it

11 was our understanding, was impounded, and the next

12 site was not impounded.

So it was not changed, it was not

14 edited, but the notation was made, nonetheless, for

15 that.

Q. Okay. So you weren't double checking

17 items like Riparian width or any other --

A. No. That stays with what the field

19 observation was. The only changes were made was to

20 adjust for the fact that the site was impounded.

Q. Thank you.

22 BY MS. LIU:

Q. Mr. Yoder, I do have one more question

24 the QHEI field data sheets. On the first one I

1 notice in Category 6 under Gradient, there are no

2 scoring numbers there.

But I notice in your manual, and

4 in Appendix 1, the QHEI field sheet does show a

5 scoring system for gradient. And I was just looking

6 at it and I notice there are categories for very

7 low, 2 to 4; moderate, 6 to 10; and then high to

8 very high of 10 to 6.

And I was wondering, very high,

10 how do you go from 10 to 6? Is that the same as 6

11 to 10?

A. Could you point that to me?

Q. It's Page 55 in your Quality Assurance

14 Project Plan.

HEARING OFFICER: Which is Exhibit 8.

THE WITNESS: What's the question?

17 BY MS. LIU:

Q. Under the gradient category --

A. Okay.

Q. -- there's a scoring system. The very

21 low is 2 to 4, moderate 6 to 10, high to very high

22 of 10 to 6.

A. That's got to be a typo on that.

24 The -- this is done by the -- the scoring is done by

1 electronic data entry, it's not done by hand.

So once somebody enters a

3 gradient, it's calculated. And you see the gradient

4 score in Exhibit 5, these are the actual scores that

5 get calculated.

It doesn't show up on these

7 sheets, but that's got to be some kind of a typo

8 there.

Q. Do you know what the actual range

10 would be for high to very high gradient?

A. Oh, I've got to look under the

12 description of that metric. The maximum score, I

13 believe, is ten.

Oh, if you go to Page 51, there's

15 a table. Because the score that's ordered for

16 gradient also varies by river size.

Because in small streams you can

18 have a high gradient. And you have to attenuate the

19 scoring.

Because you could never have that

21 high a gradient on one of the larger rivers. It

22 works, but biologically, you know, the lower

23 gradient in a big river would have the equivalent

24 biological affect that a gradient ten times as high

1 would have on a small river, for instance.

But that gives the scores. So the

3 max is a 10, but it tells you how it's attenuated by

4 stream width -- a combination of the stream width

5 and drainage area.

And so, for instance here, we're

7 dealing with here, I believe, all these sights are

8 greater than the highest drainage area, which is

9 622.9 square miles.

HEARING OFFICER: I'm sorry could you

repeat that? I didn't hear all of it.

12 BY THE WITNESS:

A. It's -- I'm just reading from Table 2,

14 under Drainage Area. The largest category is

15 anything that drains greater than 622.9 square

16 miles.

And so you can see how the scores

18 are awarded from a low of 6 to a high of 10.

19 BY MS. LIU:

Q. Since the drainage area isn't actually

21 filled in on the field sheet, is that something that

22 gets calculated somehow in -- you put it in the

23 other data?

A. Yea, it's in the database, and...

So this -- the relationships in

2 this table are embedded in the program that produces

3 Exhibit 5 and Exhibit 6.

MS. LIU: Thank you for that

explanation.

6 BY MS. FRANZETTI:

Q. Mr. Yoder, staying with the sheets, I

8 thought it -- well, you just explained in response

9 to Dr. Gerard's questions that if the impounded

10 characteristic needed to be checked for a given

11 location, then that was done in this editing

12 process. And the notation was made at the top of

13 the page, you know, edited with the date and

14 initials; correct?

A. Yes.

Q. All right. So if a sheet is marked

17 as -- if a sheet is marked edited, then it should

18 have the impounded boxes checked; correct?

A. That would be the -- what we intended

20 to happen.

Q. All right. Well, just look at Page 2

22 of the QHEI at the top, edited 1/11/08. And under

23 Channelization, impounded is not marked. And under

24 Morphology, impounded is not marked.

So how do we -- how do we know

2 whether that location should have been scored for

3 impounded. And if I'm right, that's -- I mean,

4 that's a significant swing.

Because none is checked under

6 Channelization, you get six points for that. If

7 impounded were check there, immediately there's a

8 swing of seven points deducted by that change.

It's not quite as big under

10 morphology, but a difference of two points to a

11 minus two. So all total, that swing is nine points,

12 just based on those two entries. And that's why I'm

13 asking.

A. Yeah, it's a good point. I don't know

15 the answer to that. I'll have to check that out.

Q. Okay.

A. If that's the case, then that score

18 will change. And I'm looking at Exhibit 5 at that

19 site.

And it appears that -- the only

21 thing I can figure out either it wasn't impounded or

22 it got overlooked. So we'll have to check that.

HEARING OFFICER: Mr. Safley, do you

have a follow-up?

MR. SAFLEY: This is Tom Safley on

behalf of the Illinois Environmental

Regulatory Group.

4 BY MR. Safley:

Q. Mr. Yoder, I'd like to clarify just a

6 little bit more about this impoundment being added

7 later issue. Do you mean that impounded as a

8 characteristic was on the sheet, but at the time

9 that the people were in the field they did not look

10 at it? Or do you mean it was not on the sheet in

11 the field and a new sheet was put together later?

A. It was not on the sheet at the time

13 that the survey was conducted. This was a more

14 recent development.

Q. Okay. So these -- the sheets that we

16 see here, are not the sheets that they had in the

17 field, because these sheets have impoundment, and by

18 definition, they could not be the sheets that were

19 in the field?

A. That's interesting.

Q. And that's what I was trying to figure

22 out what you meant.

A. You're right. It make sense.

Q. Because earlier you said that it was

1 your understanding these were the sheets in the

2 field?

A. I'll have to check that out. I'm not

4 sure. It would make sense. I'll have to find that

5 out.

Because I know we were

7 initiating -- we had initiated the change with our

8 project in Maine as -- we were hand entering it in

9 the first part of that project, which started in

10 2002 and just wrapped up last year. So I'll have to

11 find out when we changed the sheet.

Q. Okay. So --

A. And it could be that it was on the

14 sheet, and they just were not checking it that way

15 at the time in the field.

Q. Okay.

A. That could be a possibility.

Q. So if that was the case, and then in

19 January of '08 it was edited to address that issue,

20 did someone go back out to the field in January of

21 '08 in order to assess impoundment, or if not, what

22 other information do they draw on to assess

23 impoundment?

A. Well, the -- what we were drawing on

1 was the -- what we understood to be the effect of

2 the impoundment here, going upstream to near the

3 tail water of each dam. So, in effect, almost every

4 site, except the tail waters, would be impounded.

5 That's our understanding of the area.

So that's how we did it, from that

7 knowledge.

MR. SAFLEY: Those are all my

questions right now. Thank you.

DR. GIRARD: Could I follow-up on

that, Mr. Yoder?

THE WITNESS: Yes.

13 BY DR. GIRARD:

Q. In Exhibit 8 then, Appendix 1 is the

15 manual for filling out these QHEI sheets. Is --

16 this new impoundment issue, is that spelled out in

17 the manual?

A. No, it's -- the manual has not been

19 undated to include that yet.

Q. Do you have any written documents that

21 detail how you handle the impoundment issue?

A. It might -- it might be in our QAPP

23 for the main project. And that's kind of what we're

24 keying on now.

And, like I say, we piled it in

2 there and then we're in the process -- we also have

3 a project that's Region 5 wide. There's about

4 probably 15 different rivers that we've sampled, and

5 we're in the -- that project is not yet complete.

And this work is being used as

7 part of that project. And so, we're in the process

8 of going back and making that change, and we'll

9 update the QAPP that goes along with it at the same

10 time.

So this has been in progress, I --

MS. WILLIAMS: Mr. Yoder, I know

earlier this week you talked about what you

mean by the main project, but could you, for

the record, explain what you mean when you

say the main project?

THE WITNESS: Yeah. We have an EPA

funded project to develop a fish assemblage

and habitat methodology for nonwadable rivers

in Maine as a pilot for doing this throughout

New England. And that's funded by U.S.EPA's

Region 1 office.

And that has -- that started in

2002, and the Maine part of it wrapped up

last summer. And it's being extended into

other parts of New England in the coming

years.

4 BY DR. GIRARD:

Q. So, Mr. Yoder, do you have some draft

6 language on how to handle this issue that you could

7 maybe get to your counsel and have submitted as an

8 exhibit?

A. I'll look at the QAPP we used for the

10 New England work and see what that has in it.

DR. GIRARD: Thank you.

12 BY MS. FRANZETTI:

Q. Mr. Yoder, just going back, and I

14 don't know if this may be of any help to you in your

15 response to Mr. Safely's question.

I just wanted to call your

17 attention to the fact that the QHEI field sheet

18 forms, Exhibit 7, at the bottom right corner, do

19 have that notation "modified June 1, 2005." And I

20 just call that to your attention to see if, per

21 chance, is that when the form was modified to add

22 these impounded boxes?

A. Yeah. That -- that does make some

24 sense. I -- that would be about the time that we --

Q. And so, the people who did this work,

2 which was done in July of 2006, I think for all of

3 them -- yes -- they would have had the modified form

4 out in the field?

A. Yeah, I think it verifies the question

6 I had previously that it was done that way. They

7 just were not checking it off that way at the time.

Q. Right. And let me suggest another

9 thing for you. If you take a look -- the first

10 sheet, I think you can see it, and I know we are

11 hindered a bit by dealing with copies -- but if you

12 take a look at Channelization in Section 3, and the

13 first box none, it looks to me like there was a mark

14 there. And, similarly, under Section 5 Morphology,

15 the first box pool width -- there looks like there

16 was a mark there.

A. Oh, yeah.

Q. Doesn't it seem that they checked

19 those in the field -- this is in the original field

20 sheet, but then when whoever determined "No, we want

21 to mark impounded," it just got erased and then they

22 checked the impounded box?

A. Right.

Q. It's the same form though.

A. It actually illustrates the issue.

Q. Yeah.

A. They were checking none.

Q. Right.

A. And we felt that that was --

Q. Right.

A. It's not a -- you know, and the more

8 work we did on this, the more we felt that that

9 wasn't -- it was kind of working in the opposite

10 direction and that's the way it should have been.

Q. Right.

A. But that's how -- the existing

13 methodology up until that time, that's how it was

14 done. And then, we started to phase this in.

We use the same data sheet

16 everywhere. So the principal reason the sheet was

17 modified in '05 was to support our New England work.

And it hadn't been totally

19 initiated with our work in the Midwest yet.

Q. I wanted to call that to your

21 attention, so when you go back and check for

22 Mr. Safely's, I don't know that there are two

23 different sets of sheets, is my point.

A. No.

Q. I don't think another sheet was

2 totally filled out after the fact.

A. No, I can assure you, there was only

4 one sheet filled out. And these are it, so...

Q. Okay. Then maybe I misunderstood. I

6 thought that's what was being raised, was maybe

7 there were two sets of sheets.

A. I contributed to that

9 misunderstanding.

Q. I think the only question we're left

11 with though is, given that the sheets got changed a

12 year before, why, when the people went out in the

13 field, they didn't know at that point how they were

14 supposed to fill out the form?

A. Because at that time, they were

16 operating under the preimpoundment QHEI, if we want

17 to call it that. That we had not initiated that

18 with our crews that were working in the Midwest in

19 2006.

Q. And, Mr. Yoder, I know that it's a

21 little difficult because Exhibit 7 is not in any

22 in-date order. But if we look at the dates on each

23 of the sheets, that basically tells us the days over

24 which this work was performed in July 2006; is that

1 correct?

A. Yes, in part. That's the first

3 sampling run.

Q. Okay. And the second sampling run is?

A. That would be appearing on the fish

6 sheets.

Q. All right. Well, let me -- take a

8 look at the fish sheets, because as I flip through

9 them, they -- some of them are July, but some of

10 them are dates in September.

So some of the sites were done

12 completely in July, they did both fish and they did

13 the QHEI assessment work; correct? And then, for

14 some, they had to come back and do the fish in

15 September?

A. No, there were two passes. These

17 sheet are not in order. It would have helped if

18 they had been put in order.

THE WITNESS: It's not your fault.

MS. WILLIAMS: We know that.

MS. FRANZETTI: Yeah, I didn't hear

her accepting responsibility.

THE WITNESS: I didn't mean to imply

any. It's all with me.

1 BY THE WITNESS:

A. There were two passes done. There was

3 one pass done in July and one pass then in

4 September.

5 BY MS. FRANZETTI:

Q. For fish?

A. For fish. And the crew leader would

8 have also had the opportunity to update the QHEI

9 sheet as well at that time.

Q. Okay. And if the crew leader did

11 think on the second pass, "You know, on second

12 thought, I don't think it should be that box, I

13 think it should be this box," that would have been

14 reflected on this same field sheet that's for that

15 location, that's marked Exhibit 7?

A. It could have been, yes.

Q. And if, though, that had been done, is

18 it typical to, you know, put initials and a date to

19 indicate "I changed the" -- you know, "I changed the

20 findings"? Because in all -- in all frankness,

21 Mr. Yoder, that seems a little sloppy to allow

22 somebody to just change findings at a different

23 point in time and make no -- no notation to that

24 effect.

And I don't see anything like that

2 on these forms, that's why I'm raising the question.

A. No. But that's how we train people to

4 do that.

Q. Which way?

A. They know that.

Q. To note -- make a notation?

A. If they go on repeated passes, they

9 take the QHEI sheet on the -- if there's a second

10 pass, they take it with them.

Q. Do you also train them that if they

12 change the original past field sheet, they're

13 supposed to make some recording so that it's evident

14 it was changed?

A. I would disagree with you that that

16 would be a good idea.

Q. That's not a good idea, Mr. Yoder. Is

18 that a requirement? Is that QA/QC requirement?

A. I have to believe it is, yes.

Q. So if there's no such notations,

21 initials next to an entry on these forms, then we

22 can conclude that there really weren't any changes

23 made if there was a second pass at the same

24 location; correct?

A. I think that's reasonable to conclude

2 that.

HEARING OFFICER: Excuse me.

Mr. Diamond?

5 BY MR. DIMOND:

Q. Mr. Yoder, at the risk of getting too

7 mundane: For the first page on Exhibit 7, under the

8 category for Channel Morphology, if you -- should

9 you just add up the numerics on the boxes going

10 across to reach the total score for that category?

A. That's how it -- yes. That's the

12 accumulation of those.

Q. So what should the -- by your

14 calculation, what should be the score for channel

15 morphology on the first page?

A. That should be Exhibit 6.

Q. And you get to 6 because you add two

18 for the checkmark for low, three for the checkmark

19 for fair, deduct one for impounded, gets me to six.

20 And then, you add two for the check or moderate?

A. Yes.

Q. So that's six?

A. Yes.

Q. And then, if I look at Exhibit 5,

1 under the category for Channel for the QHEI metrics

2 for the Grant Creek location, it says 13. So should

3 that now be changed -- updated to six?

A. Yeah, it seems that that's what it

5 should be. I can't explain why that's --

MR. DIMOND: All right. Thank you.

7 BY MS. WILLIAMS:

Q. And can I ask, just for clarity for

9 the record, is this particular site within the study

10 area within we're talking about of the Lower

11 Des Plaines River? Is it on the Lower Des Plaines

12 River?

A. Well, in terms of the area that we're

14 dealing with here or?

Q. Can you tell from the sheet? When it

16 says Grant Creek, is it actually on Grant Creek or

17 is it at the junction of Grant Creek?

A. No, it's at the mouth of Grant Creek.

HEARING OFFICER: Mr. Harley, do you

have a question?

21 BY MR. HARLEY:

Q. I'd like to call your attention to the

23 exhibit that was just entered, and that's a series

24 of fish data sheets.

HEARING OFFICER: Could you speak up,

please, and have you identified yourself?

MR. HARLEY: For the record, Keith

Harley, Chicago Legal Clinic, on behalf of

the Southeast Environmental Task Force.

HEARING OFFICER: Louder, Mr. Harley.

7 BY MR. HARLEY:

Q. Mr. Yoder, I'd like to call your

9 attention to the fish data sheets that were just

10 entered into evidence. And I would like to call

11 your attention to the six fish data sheets in the

12 packet, I believe it was entered as Exhibit 20.

This is a fish data sheet, which

14 is dated July 22nd, '06. And at the very bottom of

15 this fish data sheet, there is a fish which is

16 referenced called the shorthead redhorse.

A. I'm sorry, you're going to have to

18 help me. Which sheet are you talking about?

Q. The sixth fish data sheet in the

20 packet.

MS. FRANZETTI: Mr. Harley, I don't

have the same sheet either. Yours may be in

a --

MR. HARLEY: It's not numbered six,

you actually have to go into --

MS. FRANZETTI: No, I know.

MR. HARLEY: Oh.

MS. FRANZETTI: I'm counting six

pages, and I'm like the witness, I don't -- I

see carp at the bottom of my page.

HEARING OFFICER: I have shorthead

redhorse.

MR. SAFLEY: Maybe the copies were

done differently.

MS. FRANZETTI: I think Mr. Yoder and

I have the copies from yesterday.

HEARING OFFICER: Yeah. It sounds

like you have different copies.

THE WITNESS: I have it.

MS. FRANZETTI: And actually,

Mr. Harley, would you mind holding that

question? Is it truly a follow-up? Because

all we've done with the fish data sheet is

admit it.

MR. HARLEY: I'm only dealing with one

question.

MS. FRANZETTI: Maybe we can get it

sorted out.

HEARING OFFICER: We why don't we take

a break and see if we can't do that. We've

been here for about an hour and a half.

Let's take a short 10-minute break

and see if we can figure out the copies.

MR. HARLEY: And this is just a brief

question mark question, so it will not

interrupt.

MS. FRANZETTI: Okay.

HEARING OFFICER: Thanks, Mr. Harley.

(WHEREUPON, a recess was had.)

HEARING OFFICER: Let's go back on the

record.

And Mr. Harley has indicated he's

going to withdraw his question.

So Ms. Franzetti?

MS. FRANZETTI: Okay. Thank you,

Mr. Harley.

19 BY MS. FRANZETTI:

Q. Mr. Yoder, you can go back to the

21 QAPP, Page 9.

Oh, do you want to say something,

23 Mr. Yoder?

A. Okay. I'm ready.

Q. Okay. Can you turn to Page 9 of the

2 QAPP, Exhibit 8? The first sentence at the top of

3 Page 9, Mr. Yoder, under Section 8.6 Project

4 Description.

It says, "The study will entail

6 both electro fishing at approximately 20 to 25

7 locations in the Lower Des Plaines River, between

8 Lockport to downstream from the Kankakee River."

9 And then, it references Figure 3 that depicts the

10 Lower Des Plaines area, from Lockport down to

11 downstream from the Kankakee River.

Do you know -- because it does not

13 seem at least from the QHEI data -- and, granted, we

14 haven't had the fish data as long, but it doesn't

15 seem that 20 to 25 locations in this part of the

16 Lower Des Plaines River were actually part of the

17 study. Do you know or would you have to sort

18 through these fish data sheets -- it just doesn't

19 seem to be 20 to 25.

A. There were 23 sites total in our

21 study.

Q. Twenty-three?

A. Yes.

Q. And those were all in this part of the

1 Des Plaines River?

A. Well, they were -- okay. I'm sorry,

3 I'm getting confused.

When you say this part of the

5 Des Plaines, do you mean the part subject to the

6 rulemaking or...

Q. No, no. As stated here, between

8 Lockport and to downstream from the Kankakee River.

A. Yes. So it does include portions of

10 the Illinois River, downstream of the Kankakee.

Q. Okay. Maybe this is the way to do it.

12 If you look at Exhibit 5, which is the revised

13 Appendix Table 1, now, these are the QHEI scores for

14 the stations sampled in the Illinois and Des Plaines

15 rivers during 2006. So I'm making a point to point

16 out these are the QHEI sampling locations.

Are those the same as the fish

18 sampling locations?

A. Yes, they are.

Q. All right. So we can use -- we can

21 use this and see that, of the station sampled --

22 one, two, three, four, five --

MR. SULSKI: Twenty-three.

MS. FRANZETTI: Nope. Not where I was

going.

2 BY MS. FRANZETTI:

Q. -- nine of the stations with the

4 Illinois River; correct?

A. That's correct.

Q. And then one at the bottom was

7 Grant Creek?

A. That's correct.

Q. So ten. So now we're -- in terms of

10 truly the Des Plaines River, we're down to 13

11 sampling locations; correct?

A. That's correct.

Q. Okay. Do you know -- it seems, based

14 on the river miles for the Des Plaines River, that

15 the first four sampling locations, River Mile 273.5

16 through 276.5, are downstream of the I-55 bridge.

17 Are you familiar enough with the waterway to note if

18 that's the case?

MS. WILLIAMS: At this point, Susan, I

think it would be most helpful to the Board

if we can go in panel format, where the

Agency witnesses know, if that's acceptable

to the Hearing Officer?

MS. FRANZETTI: If he can't answer the

questions, it's acceptable to me --

MS. WILLIAMS: Right.

MS. FRANZETTI: -- but I want that on

the record.

MS. WILLIAMS: That's fine.

MS. FRANZETTI: Okay. So he's not

familiar enough to put the location of where

these sampling locations are, by river mile.

THE WITNESS: I would have to defer to

one of the IEPA staff to verify that.

MS. FRANZETTI: Then that's fine.

MS. WILLIAMS: Right.

MS. FRANZETTI: Because this would be

helpful to know where these things are

generally.

So whoever wants to answer: Is it

correct to say that the first four sampling

stations under the Des Plaines River running

from River Mile 273.5 through 276.5 would be

downstream of the I-55 bridge?

MR. SMOGOR: Yes.

MS. FRANZETTI: And that is outside of

the area included in this UAA; isn't it?

MR. SMOGOR: Yes.

MS. FRANZETTI: Okay. So now we knock

off those four. And I think we're down to

nine locations that are part of this UAA; is

that correct?

MR. SMOGOR: Yes.

MS. FRANZETTI: Okay.

MR. ETTINGER: Well, I object --

MR. SMOGOR: No, I'm wrong there.

There are nine locations left in this table.

MS. FRANZETTI: Why are the Illinois

River locations a part of the Lower

Des Plaines UAA area?

MS. WILLIAMS: I don't think --

MR. SMOGOR: I'm sorry, I wasn't clear

there. You said we're left to nine locations

that are part of the lower Des Plaines UAA

and that is not correct.

MS. FRANZETTI: And explain to me your

answer.

MR. SMOGOR: Because the last three in

the table are actually upstream of the

uppermost point that this -- the lower

Des Plaines UAA addressed. Sorry about that.

MS. FRANZETTI: No, no, that's fine,

Roy. I should have been corrected there.

So the last three, River Mile

290.1, 297.0 and 298.3, those are outside of

what we call the Lower Des Plaines UAA

geographic area?

MR. SMOGOR: Yes.

MS. FRANZETTI: All right.

So for the Lower Des Plaines UAA,

the six stations that are within the -- the

stations that are within the geographic area

are the six that run from River Mile 279.5

through 290.0; correct?

MR. SMOGOR: Yes.

MS. FRANZETTI: All right.

Breaking that down one more step,

because the proposed use designation -- one

of the proposed use designations here is for

the Upper Dresden Island Pool; correct?

MR. SMOGOR: Yes.

MS. FRANZETTI: Are three -- are only

three of these sampling locations within the

Upper Dresden Island Pool.

MR. SMOGOR: Yes. River Miles 279.5,

283.9 and 285.8 are the three that are within

Upper Dresden Island Pool?

MS. FRANZETTI: And then, the

remaining three from 287.9 through 290, are

those basically in the --

MR. SMOGOR: The Brandon Pool.

MS. FRANZETTI: The Brandon Pool,

thank you.

MR. SMOGOR: It's possible 290, 290.1,

we're not exactly sure which one is in the

upper part of Brandon, which one isn't.

MR. SULSKI: The Lockport lock is at,

roughly, 291. So any number lower than 291.

So the 290.1 would be in the Brandon Pool.

MR. SMOGOR: Just for clarification,

though, I believe that at least in the Lower

Des Plaines use attainability analysis, I

think they went upstream only to the point

where Chicago Sanitary and Ship Canal meets

Des Plaines River, and I think the Lockport

lock is actually upstream of that point. So

Rob's right, the Lockport lock is the

uppermost point of, on a map, Brandon Pool.

But the portion of Brandon Pool that we're

focusing on for these proceedings, actually

the uppermost point of Brandon Pool is at the

confluence of Des Plaines River and Chicago

Sanitary and Ship Canal.

MS. FRANZETTI: Thank you. I

appreciate that.

6 BY MS. FRANZETTI:

Q. Now, Mr. Yoder, with respect to the

8 three locations in Upper Dresden Island Pool, which

9 are those that run from River Mile 279.5 through

10 285.8, do you know how those three locations were

11 selected?

A. I believe the point in selecting the

13 sites were to get an equitable distribution of the

14 sites along the longitudinal profile of this entire

15 study area. And I believe that's possible to try to

16 duplicate other sampling that had been done in the

17 past, although, that may not be true of each and

18 every site.

Q. And -- but in your reference to

20 duplicating prior sites, you're referring to QHEI

21 work done prior to this, such as by your colleague

22 Mr. Rankin; correct?

A. Yeah. And I also believe some of the

24 work that was in the UAA study, as well.

Q. Right. Now, who selected these three

2 locations for Upper Dresden Pool?

A. Well, as I recall, we -- that was, in

4 part, done by myself and the crew leader. And then

5 the -- the decision about where a site goes in the

6 field is, ultimately, up to the crew leader once

7 they get into the room.

Q. The -- you may have mentioned this

9 yesterday -- what was the name of the crew leader?

A. Alex Johnson.

Q. Alex Johnson, okay.

With respect to -- strike that.

Would your answer be the same with

14 respect to how the sampling locations were chosen,

15 as to all of the sampling locations listed on

16 Exhibit 5?

A. Yeah.

Q. They're all chosen in the same way and

19 by the same people?

A. That's correct.

Q. Do you know whether those three

22 sampling locations for the Upper Dresden Island Pool

23 are proportionately representative of the types of

24 habitat in the Upper Dresden Pool area?

A. And you're referring to just those

2 three sites?

Q. Right.

A. Now, for clarity, can you point out

5 what those three sites are.

Q. Yeah, that's River Mile 279.5, 283.9,

7 285.8.

And, Mr. Yoder, actually, it would

9 probably help if we can find them Exhibit 7, the

10 QHEI data sheet. So if -- why don't we try and take

11 a moment?

MS. WILLIAMS: Susan, are you working

from your prefiled again?

MS. FRANZETTI: You know what, I'm

flipping back and forth. I'll try and

remember to say.

Right now that question is,

basically, Question 13 of my questions on

Attachment S.

MS. WILLIAMS: Thank you.

MS. FRANZETTI: I'm having to be

ad lib a bit here, Ms. Williams, so bear with

me.

MS. WILLIAMS: That's totally fine.

MS. FRANZETTI: If you hear me saying

one and not saying it's a prefiled question,

just chime in to give the number.

THE WITNESS: Okay. I found them.

5 BY MS. FRANZETTI:

Q. Okay. Would you like to take them in

7 order, based on their QHEI sheets, in terms of

8 answering that question?

A. Actually, it's how I have them --

Q. Okay.

A. -- arranged here.

Q. Why don't we do this: Before -- let

13 me withdraw that question and ask you, can you

14 describe for each of these three locations, where

15 are we in the Upper Dresden Pool? What area are we

16 in?

A. Okay.

Q. Okay?

A. The -- let's go from upstream to

20 downstream. So 285.8 is the Brandon dam Tail

21 Waters.

HEARING OFFICER: Mr. Yoder, could you

move the microphone a little closer or move

closer to the microphone? Thank you.

1 BY THE WITNESS:

A. 285.8 is the Brandon dam Tail Waters.

3 283.9 is downstream of the Olen Company.

And River Mile 279.5 is at the

5 power lines that cross the river at that point,

6 that's just the geographic locations of those sites.

7 BY MS. FRANZETTI:

Q. And each of those locations would be

9 along the shoreline or not necessarily?

A. Well, they follow the site protocol,

11 which would be to sample along the shoreline with

12 the -- typically, the outside bend or as close to

13 what we call the Thalweg. I need to spell that.

14 T-H-A-L-W-E-G.

Which is the deepest -- kind of

16 the center line of the deepest part of the river

17 channel. And they're 500 meters in length.

Q. Mr. Yoder, I believe in the QAPP there

19 is a reference -- I'll try and find it quickly, but

20 while I'm looking for it -- I believe there is a

21 reference or a requirement that the sampling

22 locations actually be marked in the field. Is that

23 right?

A. Generally, yes, that's kind of an old

1 requirement before we had reliable GPS units.

Q. Well, let's talk about those GPS

3 units. And again, use any one of the three

4 Upper Dresden Pool locations.

By the GPS units, is that what's

6 giving the latitude and longitude values on these

7 QHEI data sheets?

A. That's where it's from, yes.

Q. Well, Mr. Yoder, do you know whether

10 or not MBI/CABB has a map that actually shows where

11 these sampling locations were located? Because we

12 are having trouble, based on longitude and latitude

13 shown on these sheets in determining where these

14 locations are.

And, in one instance, we are half

16 a mile inland from shore. So is there a way, beyond

17 the latitude and longitude information on here,

18 for -- to show us exactly where these locations

19 were?

MR. ETTINGER: I haven't been

objecting to Ms. Franzetti's statements about

things, like where these locations are and

things like that. And I am just assuming

that at some point later in the proceeding

she's going to --

MS. FRANZETTI: Tie it up.

MR. ETTINGER: -- tie it all up. I

just want to note that because Ms. Franzetti

says something -- makes a factual statement

now, that that's not evidence until she

proves it later.

HEARING OFFICER: And that's noted.

And I would agree that the facts in the

question are not facts until they're sworn

testimony or backed up.

MR. SAFLEY: You haven't answered the

question yet, but I had some follow-up.

14 BY MS. FRANZETTI:

Q. And, Mr. Yoder, the pending question

16 is, is there a map that would show, with some

17 precision, where these sampling locations are

18 located?

A. I believe there is. I believe there

20 are some river charts that have that noted. I do

21 not have them with me.

MS. WILLIAMS: At this point, based on

what you said before, you want his answer, I

would think that it's fair to then let the

panel tell you whether they could be able to

provide that information.

MS. FRANZETTI: Can I ask one more

question though?

MS. WILLIAMS: Sure.

6 BY MS. FRANZETTI:

Q. Were these sights physically marked in

8 the field?

A. I don't know that for sure.

MS. FRANZETTI: Ms. Williams?

MS. WILLIAMS: So would -- I mean, I

think the panel, again, whether they'd be

able to show you where they are at.

MS. FRANZETTI: Well, let me ask a

question first.

Were any members of the panel out

there with this field crew when they were

doing the sampling?

MR. SULSKI: Not on this project.

MS. FRANZETTI: Okay.

Have you tried to match up, based

on the longitude and latitude information in

these QHEI field sheets, where these sampling

locations are?

MR. SULSKI: I did it according to

river mile, and then on the back of each

sheet there's a diagram of the area covered.

MR. SMOGOR: I don't know if this is

helpful, but river miles are reported to the

tenth of the mile. If my math is correct,

that's about 528 feet. And the sampling,

typically, is a longer stretch than that.

So if the river miles are

accurate, that's a fairly precise way of

locating where you are. And Chris can --

THE WITNESS: The river mile would be

the center point of the sampling site. So at

500 meters, that is .31 miles.

HEARING OFFICER: Go ahead.

THE WITNESS: So you could locate the

center point of the site by the river mile

that's indicated --

HEARING OFFICER: Mr. Safley has a

follow-up.

THE WITNESS: -- and split the

difference either way.

HEARING OFFICER: Mr. Safley has a

follow-up, Ms. Franzetti.

MS. FRANZETTI: Oh, yes, fine.

MR. SAFLEY: Yeah, thank you.

Tom Safley again.

4 BY MR. SAFLEY:

Q. On that last point, quickly though,

6 Mr. Yoder, according to Exhibit 5, there are a

7 couple instances in which river miles are a tenth of

8 a mile apart. For example, 276.4 and 276.5; is that

9 correct?

MS. FRANZETTI: The third and fourth,

under Des Plaines River.

12 BY THE WITNESS:

A. Yes, I see that.

14 BY MR. SAFLEY:

Q. Would the 500 meter fish sampling

16 distances then overlap for those two river miles, or

17 how does that work?

A. The only thing I could think is they

19 were on opposite sides of the river. And that --

20 the river is pretty wide at that point.

Q. Okay.

A. Again, I would have to -- I don't know

23 exactly if that was the case. That's what I am

24 surmising, based on something like that.

Q. In that instance, that may represent

2 one fish sampling but two different river mile

3 locations?

A. Oh, it's definitely two different

5 locations.

Q. Right. But as far as -- I thought we

7 had said earlier that each one of these river mile

8 locations corresponding with an electro fishing

9 event?

A. Correct.

Q. Okay. Oh, so --

A. If they're on opposite -- they can

13 overlap in terms of lineal distance, but on two

14 opposite shore lines --

Q. Okay.

A. -- that frequently happens in

17 large rivers. I'm just surmising that's what it is.

18 It sounds illogical to have two adjacent sites that

19 overlap with one another, it doesn't make sense to

20 me either.

Q. Okay.

A. But I would have to verify with my

23 crew that that, indeed, did happen.

Q. So if they were on opposite sides of

1 the river, the area in which they were doing electro

2 fishing wouldn't overlap because of the width of the

3 river?

A. That's correct.

Q. Okay. Then going back to the

6 longitude and latitude, again, a question just to

7 try to pin this down, Exhibit 7, Ms. Franzetti was

8 going to be asking you about some of these sheets,

9 one is 2790, River Mile 279.5, and I think you had

10 found that one, I think it's third from the back.

11 Can you find that sheet for me?

A. I have it.

Q. Okay. And it has a longitude and

14 latitude listed there. And you may have stated

15 this, but just so I understand: Is it correct that

16 the field personnel have a handheld GPS unit, which

17 they take with them, and they, in the field, get the

18 longitude and latitude and record it on this sheet?

A. Yes.

Q. Okay. If you could flip --

A. Well, they also -- it's also

22 electronically recorded.

Q. Oh, it's electronically? Okay.

If you could flip three pages

1 before that. This is river mile -- listed as River

2 Mile 276.5. It's location Moose Island, DST Durkin

3 Road, I think. Can you find that?

Again, in my set, it's three pages

5 before that. Were you able to locate that,

6 Mr. Yoder?

A. I see it.

Q. And you may have anticipated where

9 I'm -- what my question is going to be. I read the

10 longitude and latitude on both those sheets as being

11 exactly the same. Am I reading that correctly?

A. That's what it says.

Q. Okay. But according to river mile,

14 one side is three miles up stream or downstream,

15 depending on which one you start with from the other

16 one; is that correct?

A. That's correct.

Q. And that was an issue that we had

19 noted, and again, just trying to figure out where

20 these locations are that we're taking about.

How could that have occurred with

22 the procedure that you talked about, with regard to

23 using the GPS meter in the field?

MR. SMOGOR: If I might butt in?

MR. SAFLEY: Go ahead.

MR. SMOGOR: I think Moose Island, one

of these sights, there's a slough that kind

of doubles back on the river. And if you

look at the map, the actual river mile of a

slough is pretty much the same lineal

distance along the river. But it's off the

river in an actual slough, perhaps.

MS. FRANZETTI: Which is why, though,

Mr. Smogor, that just the river mile doesn't

tell you all the time where the location is;

right?

MR. SMOGOR: In this case, obviously

not.

MR. SAFLEY: And I appreciate that. I

guess, since Mr. Yoder is the one who was the

supervisor on this project, I'd like to get

his thoughts on that.

19 BY MR. SAFLEY:

Q. And granted, I haven't been out to the

21 location, even if that is the explanation, could it

22 sill -- would it still make sense that the latitude

23 and longitude are identical?

A. Yeah, I agree, it's a mystery to me.

1 I'll need to find out what happened.

MR. SAFLEY: Those are my only

follow-up questions right now. Thank you.

HEARING OFFICER: Thank you,

Mr. Safley.

6 BY MS. FRANZETTI:

Q. Mr. Yoder, can you look back on

8 Page 14 of the QAPP, Exhibit 8. And specifically on

9 Page 14 under Section 8.9 Documents and Records.

In the second sentence there, it

11 says, "A detailed plan of study will be developed

12 with the sampling team and used to guide the

13 selection of sampling sites in the field during

14 reconnaissance and the initial sampling for each

15 river survey."

Was that detailed plan of study

17 developed?

A. I believe there was a plan to guide

19 that. I will need to -- I need to find out about

20 that.

Q. All right. Does --

MS. FRANZETTI: For the record, I

would request that that plan of study be

produced if it still exists.

MS. WILLIAMS: If Mr. Yoder provides

it to us, we will certainly provide it to the

Board and all of you.

4 BY MS. FRANZETTI:

Q. In the 349 absence of having that

6 detailed plan of study, Mr. Yoder, I'm going to go

7 back to my prefiled Question 14.

What procedures were followed to

9 ensure that the sampling locations were not biased

10 and were fairly representative of the habitat

11 conditions in the Upper Dresden Island Pool?

A. Well, I think we before referenced the

13 intensive survey sampling design, but we developed

14 for nonwadable rivers. And I believe that

15 contributes it to not having an -- over biased about

16 what the sampling sites represent.

Q. Mr. Yoder, I didn't understand your

18 answer. Could you try and clarify it for me, so

19 that I may understand it?

A. Well, under project -- under A(6),

21 Project Description, the last sentence says, "This

22 will include using an intensive survey sampling

23 design developed for nonwadable" --

HEARING OFFICER: Could you slow down,

Mr. Yoder? I know you're reading, but could

you slow down a little bit for the court

reporter.

Go ahead. You just need to slow

down your reading.

6 BY THE WITNESS:

A. Under A(6) Project Description, the

8 last sentence of the first paragraph, this is

9 Exhibit 8, it states, "This will include using an

10 intensive survey sampling design developed for

11 nonwadable rivers." It references Yoder et al 2005.

12 BY MS. FRANZETTI:

Q. And that publication contains an

14 intensive survey sampling design for nonwadable

15 rivers that you believe was used here or relied on

16 here to select the sampling locations?

A. Yes.

Q. And if it was in fact relied on, it's

19 your opinion, then, that the selection of the

20 sampling locations would not be biased?

A. That's correct.

Q. Okay.

HEARING OFFICER: Excuse me. Could we

turn up the microphone? We're having a real

hard time hearing Mr. Yoder today. We

weren't yesterday, so -- but we are getting

more outside noise today too.

Sorry, Ms. Franzetti.

MS. FRANZETTI: No problem. I wanted

to make sure you could hear.

7 BY MS. FRANZETTI:

Q. Mr. Yoder, just to tie this up, on

9 Page 32 to the last page of the QAPP, before you get

10 to Appendix 1, is that the reference that is at the

11 end of the sentence about the intensive sampling

12 design, Yoder CO and nine others 2005, changes in

13 fish assemblage status in Ohio's nonwadable rivers

14 and streams over two decades?

A. That's correct.

Q. Now, is the next line there a

17 different publication or it's the same? The next

18 one, after what I just read, it says, "In RUs and

19 JRINNE." And then it goes on, "Historical changes

20 in fish assemblages of large rivers in the

21 Americas."

So in which publication will we

23 find your intensive survey sampling design?

A. You'll find it up -- it's a book for

1 symposium proceedings, and you'll find it in that

2 book.

Q. And is that publically available?

A. Yes. It has since been published. It

5 was not published at the time.

Q. Do you know, with respect to -- we've

7 already mentioned that one of the three sampling

8 stations in Upper Dresden Pool was at the

9 Brandon Dam Tail Water, River Mile 285.8. Do you

10 know what percentage of the Upper Dresden Island

11 Pool is represented by that tail water area?

A. I don't have an exact percentage for

13 you, no.

Q. Can you give me an estimate,

15 approximation?

A. It's a small part.

Q. Can you give me a percentage range

18 that you mean when you refer to something as --

A. Can I ask the IEPA staff to help me

20 out?

MS. FRANZETTI: Sure.

MR. SULSKI: It's roughly a mile out

of eight.

MS. FRANZETTI: Out of eight miles?

MR. SULSKI: Out of eight.

2 BY MS. FRANZETTI:

Q. And with respect to River Mile 283.9,

4 which is the -- has been identified as downstream of

5 Olin. Olin, by the way, is reference to an

6 industrial plant; correct?

A. I would presume that to be the case,

8 yes.

Q. All right. Can you, or any other

10 member of the panel, on this question describe --

11 tell me approximately what percentage of the

12 Upper Dresden Pool habitat area this location is

13 representative of?

MR. SULSKI: Just the sample

represents the range of the sample, where the

sample is taken. Are you looking for an

approximate representative of the whole

eight-mile stretch?

MS. FRANZETTI: Right.

MR. SMOGOR: I don't --

MS. FRANZETTI: If you know. If you

know.

MR. SULSKI: I could only make an

answer to that with the following caveat:

Based on the QHEI scores throughout that

system, from I-55 up to the Tail Waters, it

would be approximately equal to a mile of the

entire reach. In other words, a score like

that would only be found in about a mile of

the entire reach.

So that would be another,

whatever, one eighth.

MS. FRANZETTI: And, Mr. Sulski, and

what's that based on? How do you know --

MR. SULSKI: That's based on a

distribution of QHEI scores throughout the

pool, or throughout the I-55 to the

Tail Water reach.

MS. FRANZETTI: Okay.

MR. SULSKI: So if you look at QHEI

scores that are in that range, that lower 30

range, it represents about a mile. In other

words, the rest of the scores --

MS. FRANZETTI: Yeah, I just don't

know what QHEI scores you're relying on to

tell me -- that's what I'm confused about.

Are you relying on the Rankin QHEI

scores?

MR. SULSKI: Well, we have a number of

QHEI scores that were represented in

Attachment A. And Rankin's report did two,

they did three.

So there's a number of QHEIs

spread across the system. So if you look at

the QHEI score in general, it's roughly

another mile, so...

MS. FRANZETTI: Okay.

HEARING OFFICER: And for the record,

Mr. Sulski talked about a lot of attachments

in the appendix. Attachment A is the

Attachment A to the proposal.

MR. SULSKI: Yes, ma'am.

HEARING OFFICER: Thank you.

MS. FRANZETTI: And finally, same

question with respect to River Mile 279.5,

which has been identified as the Power

Lines -- it's located at the power lines that

cross the river. Anyone -- can anyone tell

me approximately what percentage of the

habitat in Upper Dresden Pool you believe

that location represents?

MR. SULSKI: That would be a little

more difficult. It would range from a mile

to maybe three or four miles.

MS. FRANZETTI: What is that based on?

MR. SULSKI: That's based on a

distribution of QHEI scores. So when you

look at them spread out in a visual map, this

QHEI score is 49 -- I'm sorry -- I made a

mistake, I was looking at the wrong QHEI

score.

I would say another mile.

MS. FRANZETTI: But your reason for

saying about a mile is, again, based on prior

QHEI scores in this general area?

MR. SULSKI: Yes. With regard to this

one, my answer to the first one, the Brandon

Road Pool. I've been in the Brandon Road

Pool, and you can see on a map how long it

is, it's a mile long.

MS. FRANZETTI: And, Mr. Sulski, just

so we don't get confused or confuse people,

you're now saying Brandon Pool --

MR. SULSKI: I'm sorry.

MS. FRANZETTI: -- you're mean Tail

Waters; don't you?

MR. SULSKI: The Tail Waters, yeah.

Brandon Tail Waters.

MS. FRANZETTI: Thank you.

I'm going to ask Question 17 in my

prefiled questions, and I can -- anyone who

would like to answer.

How much good habitat -- and we're

defining that as habitat with above a QHEI of

60, is -- for purposes of this question -- is

there in each of the subject areas involved

in this rulemaking, particularly in the Upper

Dresden Pool? And, you know what, for the

purposes of right now, let me limit it to the

Upper Dresden Pool solely, so we don't take

up a lot of time when we have very little

left with Mr. Yoder.

MR. SULSKI: Well, you're assuming

that plus 60 is good habitat. What's that

assumption? I don't mean to ask a -- you

know, respond with a question.

MS. FRANZETTI: Well, I have to define

"good." I mean, if I just say good, I may

define it one way, you may define it another

way in terms of good habitat. So I'm

defining it as habitat that would score above

60 on the QHEI.

MR. ETTINGER: So why don't we just

say that the question is what percentage is

above 60. Is that your question?

MS. FRANZETTI: That will be fine,

Mr. Ettinger.

MR. SULSKI: I can give you locations

where there's above 60, but when you consider

habitat of an area, you just don't look at

160 and 150 and 130. And you don't just look

at scores or a sum of scores or an average of

scores.

You have to look at the system as

a whole and look at other features,

including, in some cases, the individual

metric that made up the score and why a QHEI

score would be what it is. You know, what

drug it down or raised it up.

MS. FRANZETTI: Okay.

MR. SULSKI: So you would have to take

that that into consideration. And you would

have to take into consideration the broader

knowledge or appearance of the system, what

it is, how much of these 60s does it have --

what other similar areas, sloughs, adjoining

sloughs, river mouths, deltas, islands, any

areas behind islands.

You would have to take that into

consideration and look across the broad upper

part of the pool itself. So it's hard to

say, okay --

MS. FRANZETTI: Then I'm going to --

I'm going to leave it that for now. We'll

come back to this in March; all right?

Because it sounds like you're

going to need some time to really fully

respond to that question by taking all these

things into account. All right.

Instead, let's go to Mr. Yoder.

Can you give Mr. Yoder the original

Attachment S --

MS. DIERS: Yes.

MS. FRANZETTI: -- as well as, then,

the revised Exhibit 5?

22 BY MS. FRANZETTI:

Q. And, Mr. Yoder, I want to -- again, I

24 want to stay focused on Upper Dresden Island Pool,

100

1 those three locations. With respect to River Mile

2 279.5, do you see in Attachment S that originally

3 that location had a score of 77 on the QHEI?

A. Yes.

Q. If you turn then to Exhibit 5, is it

6 correct in the corrected QHEI score, it has dropped

7 down to 67?

A. That's correct.

Q. Do you know what caused that error of

10 ten points, from 77 to 67?

A. Ma'am, that is not an error. It is a

12 change in the scoring and resulted in a ten point

13 decline.

Q. Okay. Maybe then we need -- let's

15 turn to in Exhibit 7, River Mile 279.5 and explain

16 to me how a change of -- what you mean by your

17 answer that it was a change in the scoring and not a

18 error.

A. I consider an error to be a mistake.

Q. Okay.

A. This is not a mistake, it's a change

22 in the procedure. The original completion of the

23 sheet was done according to a prior procedure, and

24 the revised score you see is due to a revised

101

1 procedure.

Q. And we're back to the impounded

3 reason?

A. Yes. Which we went over this morning,

5 earlier.

Q. Oh. That adds up to ten points if

7 both impoundeds are checked?

A. Yes, ma'am.

Q. Okay. All right.

Well, then take a look at the next

11 one, 283 --

MR. RAO: Before you go on to the next

one?

MS. FRANZETTI: Absolutely.

MR. RAO: Mr. Yoder, can you walk us

through this river mile, how you came up with

the score 67?

I just want him to walk us

through, because we were not able to get the

same number when we followed your procedure.

HEARING OFFICER: Basically, can you

do the math?

MR. RAO: Yeah.

THE WITNESS: I can't do it completely

102

from the data sheet, because these values are

entered in a program that does the

calculations. And I don't have all of the

input values, especially for the gradient

score.

I have to refer to Exhibit 5 to

get that information. So I'm relying on

Exhibit 5 as being the computer-generated

scoring that was based on, largely, the input

from the data sheet.

MR. RAO: For example, if you could

just take a look at the score for the cover

you came up with for that river mile, I think

you have a score of 17 for cover. Is it

possible for you to explain how you came up

with that number without the computer

program?

Because we tried to do it, and we

get a different number. We just want to make

sure we are doing it right.

THE WITNESS: Yeah, are you getting

18?

MR. RAO: Twenty.

THE WITNESS: I don't see how you

103

would have gotten 20 out of that.

MS. LIU: Do you just add up the

numbers? One plus two...

THE WITNESS: Yeah, don't read the

hand numbers.

MS. LIU: Oh, okay.

THE WITNESS: Those are not the score.

That's what you're reviewing.

DR. GIRARD: Mr. Yoder, you only read

the number on the right-hand side.

THE WITNESS: The number in the

brackets, the score of the attribute.

MR. RAO: So you got 18?

THE WITNESS: I just counted 18, which

makes me --

MR. SMOGOR: If you look at expos,

there's a zero in front of it. So even

though there's a number there, does that

help, Chris?

THE WITNESS: Oh, that's it, okay.

Yeah, that wasn't checked.

Okay. I counted -- it's correct,

there should be 17. Thank you, guys. I

appreciate that.

104

DR. GIRARD: So, Mr. Yoder, the cover

type score, which can be zero to three, which

is on the left-hand side of the cover type,

that doesn't get counted into the final

calculation?

THE WITNESS: No, it doesn't. It's --

you've got to understand the nature of our

work is developmental at the same time.

So we are collecting data that

will, perhaps, refine this in the future.

And that's what that is.

Okay? So it doesn't enter into

the scoring now.

DR. GIRARD: Well --

THE WITNESS: On this sheet, only work

with the numbers that are in brackets after

the specific -- that's what contributes to

the score.

MR. RAO: Because the next one,

Riparian Zone, we got a score of ten adding

those numbers. Are we doing it right?

THE WITNESS: Yeah, it's -- it's an

average of the left and right banks on that.

I -- it's hard to tell on these copies, but I

105

think I see -- okay, I won't -- (inaudible).

MS. FRANZETTI: Are you --

THE WITNESS: We need some humor, it's

like a hanging chad.

I believe urban or industrial got

checked on the left-hand side, so I don't

know. That can explain -- because I add up

-- I add up ten points too from this. But

I'm not sure we're reading everything that

got checked.

And this data is entered, okay,

into a -- the ultimate authority is the

computer database.

MR. RAO: So that program is capable

of discerning the different --

THE WITNESS: Well, provided you enter

the data correctly. But I can't tell here --

I'm seeing like -- there may be other

checkmarks or something.

Maybe not. But that would

explain -- but I agree with you. I mean, I

think you're doing it right.

You take the value in the brackets

and you add each one up and it gets -- it can

106

exceed ten, that's the maximum it can be.

And I'm getting ten by hand.

But the program's reporting nine

for that site.

MS. LIU: We have the raw field data

sheets and we also have the output on the

program. Do you happen to have the input to

the program?

THE WITNESS: Well, I do, it's in

Columbus. So I can make a phone call and

verify that very easily.

Someone can go look at it, pull it

up on the screen and see what happened.

MR. RAO: That would be helpful,

thanks.

16 BY MS. FRANZETTI:

Q. Mr. Yoder, I recognize that, with

18 respect to the Upper Dresden Pool and some of the

19 other impounded locations, that that explains the

20 ten point drop in the QHEI scores from Attachment S

21 to the revised version of it, Exhibit 5. But would

22 you look at, for example, going down right below the

23 upper Dresden locations to the next one, 287.9?

If you look at Attachment S, the

107

1 original score was 26, and now, in Exhibit 5, the

2 score is revised to 21. That's only a drop of five

3 points.

So I can't explain -- I can't use

5 your explanation of changing the method and not a

6 mistake to explain a five point drop. So could you

7 look at that QHEI sheet and explain how it went from

8 26 to 21?

A. Yes, I can explain that. Because

10 under channelization, the original score assigned

11 was a one instead of a six. And --

Q. Now, why is that?

A. Apparently, based on observation, they

14 felt there was some channelization there at that

15 site. So that's all I can -- again, I'm not as

16 familiar with the river as the IEPA folks are.

But if I could ask them a question

18 about the site?

Yeah, this is the part of the

20 river in Joliet, which I have seen, that is very

21 constrained by sheet pilings. So they considered

22 that to be recent or no recovery.

So -- and I'm not sure there's

24 anything else like that that they would have seen in

108

1 the system short of being in the CAWS system.

Q. Okay.

A. So it was already being -- it was

4 already -- in other words, I appreciate your

5 paradigm here, that -- why aren't the scores

6 dropping by ten points. This one only drops by

7 fewer points because it was already scored adding

8 one instead of a six.

Q. I see, okay. All right.

I think that does help explain why

11 the drops are different depending upon -- can you

12 just look at one more to confirm that it's all about

13 this impounded modification, river Mile 290? If you

14 look at Attachment S, it started at 49 and if you

15 look at Exhibit 5, it went to 44.

Mr. Yoder, does it seem to be the

17 same reason for the drop by five points?

A. I believe it is. And although it's

19 hard to tell what the former marking was because the

20 copy, but I believe there's enough of a smudge there

21 to suggest it's exactly the same issue as the

22 previous site.

Q. Okay. Thank you.

HEARING OFFICER: Well, let's go off

109

the record for just a second.

(WHEREUPON, discussion was had

off the record.)

(WHEREUPON, the deposition was

recessed until 1:15 p.m.,

this date.)

110

1 STATE OF ILLINOIS)

)

3 COUNTY OF C O O K)

4 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT - LAW DIVISION

6 IN THE MATTER OF:

)

7 WATER QUALITY STANDARDS AND

)

8 EFFLUENT LIMITATIONS FOR THE ) R08-9

9 CHICAGO AREA WATERWAY SYSTEM AND ) (Rulemaking -

10 THE LOWER DES PLAINES RIVER: ) Water)

11 PROPOSED AMENDMENTS TO 35 Ill. )

12 Adm. Code Parts 301, 302, 303 )

13 and 304.

)

DATE: 2/1/08

TIME: 1:32 p.m.

111

1 APPEARANCES (p.m.):

ILLINOIS POLLUTION CONTROL BOARD:

Ms. Marie Tipsord, Hearing Officer

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

Mr. Anand Rao, Senior Environmental Scientist

Mr. Tanner Girard, Acting Chairman

Mr. Nicholas Melas, Board Member

Mr. Thomas E. Johnson, Board Member;

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY:

Ms. Stefanie Diers

Ms. Deborah Williams

Mr. Robert Sulski

Mr. Scott Twait

Mr. Roy Smogor

Mr. Howard Esaig;

THE NATURAL RESOURCE DEFENSE COUNSEL:

Ms. Ann Alexander;

112

1 APPEARANCES (p.m., cond't.):

ENVIRONMENTAL LAW AND POLICY CENTER,

33 East Wacker Drive

Suite 1300

Chicago, Illinois 60601

312-795-3707

MR. ALBERT ETTINGER

MS. JESSICA DEXTER;

appeared on behalf of ELPC, Prairie Rivers

Network, and Sierra Club;

FRANZETTI LAW FIRM, P.C.,

10 South LaSalle Street

Suite 3600

Chicago, Illinois 60603

312-251-5590

MS. SUSAN FRANZETTI,

appeared on behalf of Midwest

Generation, L.L.C.;

113

1 APPEARANCES (p.m., cont'd.):

HODGE DWYER AND ZEMAN,

3150 Roland Avenue

Post Office Box 5776

Springfield, Illinois 62705

217-523-4900

MR. THOMAS SAFLEY,

appeared on behalf of the Illinois

Environmental Regulatory Group;

SONNENSCHEIN NATH AND ROSENTHAL, LLP,

7800 Sears Tower

Chicago, Illinois 60606

312-876-7934

MR. JEFFREY FORT,

appeared on behalf of Citgo;

114

1 APPEARANCES (p.m., cont'd.):

MAYER BROWN LLP,

71 South Wacker Drive

Chicago, Illinois 60606

312-782-0600

MR. THOMAS W. DIMOND,

appeared on behalf of Stepan and Company;

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

CERTIFICATE NO. 84-4327.

115

HEARING OFFICER: Let's go back on the

record.

3 BY MR. FRANZETTI:

Q. Good afternoon, Mr. Yoder.

Were there any of the either

6 requests or matters that you testified to this

7 morning that you would have to check with your

8 office that you were able to do that, checking over

9 the lunch hour? And if so, do you want to augment

10 in any way your answers to any of those questions

11 this morning?

A. Yeah, I can for some of them at this

13 point.

Q. Why don't you go ahead and do that.

A. Okay. With regard to the questions

16 about the study plan in the locations of the sights

17 and if there's any documentation of that, and now

18 that I recall what happened as well, the -- this was

19 done, again, under the grant with U.S.EPA that we

20 talked about previously. And this particular study

21 was actually planned in connection with Ed Hammer.

And so, what happened was before

23 the study was initiated, the crew leader met with

24 Mr. Hammer and they used the Illinois Waterway

116

1 Navigation Charts to actually mark where the sites

2 would be, that's how the study was planned. And

3 again, it was following this intensive survey study

4 design.

And so, I have those maps being

6 copied and the fish data sheets, I believe, should

7 also have -- I believe I asked that the latitude and

8 longitudes be actually added to those so that they

9 can be cross-referenced more easily with the actual

10 data sheet. So it will take some time to get that

11 together, copies made and faxed.

But, hopefully, that will arrive

13 this afternoon.

Q. Okay.

A. And so, that constitutes our study

16 plan, in other words.

Q. Now, Mr. Yoder, this morning in

18 response when we were -- strike that. Let me start

19 again.

This morning, when you and I were

21 talking about how the sampling locations were

22 selected, you made reference to you and the crew

23 leader, you thought, you recalled sitting down and

24 talking about that. Is that still your

117

1 recollection?

A. Yeah, that would have happened after

3 the meeting that our crew leader had with

4 Mr. Hammer. And I do recall talking to Mr. Hammer

5 on at least more than one occasion about this

6 effort, so I'm thinking it happened during that

7 occasion.

Q. And if I recall correctly, I think the

9 other day you advised us that for the crew leader,

10 this was his first time on this water body to do

11 this kind of work; correct?

A. That's correct. On this water body.

Q. So did Mr. Hammer, basically, direct

14 the crew leader as to where in the Upper Dresden

15 Pool the sampling locations should be, given his

16 greater familiarity?

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

18 yes.

Q. With respect to -- turn to Page 14,

20 please of the QAPP, Exhibit 8. I think we've pretty

21 much covered the documents and records, we have the

22 QAPP, Exhibit 8.

You've talked about the detailed

24 plan of study, we have the field data sheets that

118

1 are completed, Figures 4 and 5. But if you move

2 down into -- towards the bottom of the paragraph

3 with the heading Field Data Recording, you'll get to

4 a sentence right after the reference -- or a second

5 reference to Figure 4, quote, "The crew leader will

6 also maintain a field activities log, noting all

7 circumstances relating to field sampling, site

8 access, weather and other relevant observations."

Do you know whether such a field

10 activities log was kept for this work?

A. Yes, I believe it was. Whether it

12 included in detail everything noted there, I don't

13 know.

But they do -- they do record

15 their daily activities of where they were, how many

16 hours and so on.

Q. Would it be possible to produce a copy

18 of that log?

A. We could -- I could attempt to find

20 out if that still exists.

Q. All right.

A. But he's no longer employed with us,

23 so we can see if we can get that, too.

Q. Wouldn't that be something he would

119

1 likely leave behind as part of the project

2 documentation and not take with him though?

A. Well, that's a good point.

Q. Well, I would appreciate it if you

5 could check. And if that is available, if you would

6 produce it as well.

Moving on, the last item is

8 Voucher Specimens. Do you know whether or not

9 voucher specimens were collected here to validate

10 species identification?

A. Yes.

Q. And are those being kept at the Ohio

13 State University Museum of Bio Diversity?

A. Yes.

Q. And if someone who is involved in this

16 rule making proceeding did want to look at the

17 voucher specimen to see whether or not they agreed

18 with the fish identification made by your team,

19 could they get access to them?

A. Yes, I believe they can.

Q. Now, turning to Page 19 at the very

22 top under the caption reporting it says, "A final

23 report will be produced in accordance with the

24 requirements of the cooperative agreement detailed

120

1 work plan and grant reporting requirements."

Has a final report been produced

3 as of today?

A. Yes. In terms of there is a final

5 grant report, that's what that refers to.

Q. Do -- and have you submitted that to

7 U.S.EPA?

A. Yes.

Q. Can I -- does that report -- well,

10 with respect to the information regarding the

11 Des Plaines River, does that final report talk

12 about, evaluate the information collected during

13 this project on the Des Plaines River?

A. No. I don't believe it does.

And that's not what that

16 requirement requires us to do.

Q. What does the final report cover?

A. It just covers the fact that we did

19 the work and that's how the grant votes were

20 extended. And so, it's required anytime a grant

21 closes out.

This grant was closed out at the

23 end of 2006. So if -- what you're interested in is

24 a biological and water quality assessment, we did

121

1 not do that.

We were not asked to do that as

3 part of the study.

Q. Is it correct then to state that the

5 information in Exhibit 5, and is it -- excuse me a

6 second -- that in terms of any summary information

7 regarding the work on the Des Plaines River, that

8 that, basically, is contained in Exhibits 5 and 6?

A. Yes, that's the extent of what we

10 produced.

Q. Moving down that page to B(2),

12 Sampling Method --

MS. WILLIAMS: Excuse me, Susan, I

want to make sure the record is clear. So

Exhibits 5 and 6 are the replacement pages

from S of the QHEI, but there's also IBI

information in Exhibit S -- I mean

Attachment S, to the statement of reasons,

that aren't reproduced in Exhibits 5 and 6?

MR. FRANZETTI: Why don't you just ask

Mr. Yoder if he would also include that part

of Attachment S as part of the summary or

evaluative information that came out of the

Des Plaines River work.

122

THE WITNESS: Okay. So in addition to

the QHEI tables, which there were two, there

is a table of IBI -- fish IBI metric scores

for each sample and the final score, also the

modified index and well-being.

And then, there is a species --

fish species summary for each location in

addition to that.

9 BY MS. FRANZETTI:

Q. Turning now on Page 19 to the

11 Section B(2) Sampling Methods. And timely given

12 where you just ended with that answer with respect

13 to the fish IBI scores, it says, "Methods for

14 collection of fish will be based on appropriate

15 modifications of those established for boat electro

16 fishing by Ohio EPA."

What modifications of the Ohio EPA

18 boat electro fishing collection methods does that

19 refer to?

A. Well, in this case, it's not

21 substantially different than what Ohio EPA

22 recommends, and that's really what it's based on.

Q. What were the modifications, if any,

24 that were made to the Ohio EPA methods?

123

A. I don't believe any substantial

2 modifications were made in this case.

Q. Moving on into sample site selection

4 delineation, it says in the second sentence,

5 "Individual sampling sites are located along the

6 shoreline with the most diverse habitat features in

7 accordance with established methods."

Do you know whether or not

9 Mr. Hammer's suggested sites were consistent with

10 that criteria?

A. Yes. He's familiar with that

12 technique or should have --

Q. He may be familiar with it. Do you

14 know for a fact whether or not in proposing the

15 sights that were sampled here, that he selected

16 sites with the most diverse habitat features in

17 accordance with established methods?

A. Yes, I believe that happened.

Q. How do you know it happened?

A. Well, in terms of personal

21 observation, I can't attest to that. But it's a

22 procedural matter that we follow, and people are

23 trained to follow.

Q. With respect to Page 20 -- turning to

124

1 Page 20 in the first full paragraph, four lines

2 down, it says, quote, "The boundaries of each boat

3 electro fishing zone or subzone are marked on

4 stationary objects, e.g., trees, bridge piers,

5 et cetera and fixed landmarks or geo reference."

6 And a little later on it says, quote, "This enables

7 accurate relocation of sites in the event repeat

8 visits are made."

We may have touched on this this

10 morning, but now that we're right at the reference,

11 were the boundaries of each boat electro fishing

12 zone or subzone marked on stationary objects during

13 the work on the Des Plaines River?

A. As I indicated before, that is a --

15 that's a technique that was used when this

16 methodology was initiated. And since that time, GPS

17 units have, in some cases, obviated the need to do

18 that. But I will check and see if it did happen.

We've -- one problem with that is

20 to see the objects, you have to mark them with some

21 kind of bright paint, which can be annoying

22 sometimes to others that use these waterways. So

23 we've tried to discourage that practice, especially

24 with the advent of GPS units.

125

Q. Moving on to the next paragraph,

2 "Exact sampling locations are determined in the

3 field and include a representative proportion of

4 reaches along the mainstem with respect to pollution

5 sources, habitat modifications, i.e., mostly

6 impounded sections behind dams, reaches effected by

7 water level fluctuations below hydroelectric

8 facilities," close paren, "and relatively unmodified

9 free-flowing reaches."

Do you know whether that criteria

11 was followed here in terms of identifying the

12 sampling locations?

A. Yes. That's just a more detailed

14 explanation of the intensive survey design that's

15 followed.

Q. So again, you're telling me you

17 believe Mr. Hammer followed that criteria in

18 specifying the locations to be sampled?

A. And Mr. Johnson.

Q. With respect to 7, I'm going to turn

21 to my prefiled Question 18.

The QHEI considers substrate in

23 terms of size, composition, e.g., silt versus sand

24 versus cobble, but does not take into account

126

1 whether the sediment present may be toxic. Has it

2 been determined whether any of the areas that

3 received QHEI scores of greater than 60 with

4 apparently good habitat are in fact unusable as good

5 aquatic habitat because of legacy pollutants and

6 sediments?

A. I'm going to have to defer the IEPA

8 staff on that one.

Q. You don't know the answer to that?

A. No, I don't know the answer.

MS. FRANZETTI: Is the Agency prepared

to answer that question?

MR. SULSKI: I don't think we have

information to answer it one way or another.

MS. FRANZETTI: And, by that, you mean

it's possible that sites with a QHEI of

greater than 60 do in fact have contaminated

sediments that make the site unusable as good

aquatic habitat?

MR. SULSKI: It's possible it is, it's

possible it isn't. I don't have information

to make that determination.

MS. FRANZETTI: For people who might

be following, we've covered 19, we've covered

127

20.

Staying with my prefiled

questions, Question 21. I apologize, I'm a

little out of order here.

With regard to fish results for

the Des Plaines River contained in Appendix

Table 1, which is part of Attachment S,

beginning at Page 28, there are several fish

species identified that appear questionable

for the Des Plaines River, such as silver

shiner, blacknose shiner, highfin

carp-sucker, black redhorse and brown

bullhead. Can you tell me what process or

processes were used to ensure that these

species were not misidentified?

HEARING OFFICER: And, Ms. Franzetti,

just for the record, I may have missed this.

You said Appendix Table 1, is that

Attachment S?

MS. FRANZETTI: I might have said

exhibit. If I said Exhibit S, I meant

Attachment S.

HEARING OFFICER: I didn't hear S at

all, so I was just checking.

128

MR. SULSKI: That's Exhibit 19?

MS. DIERS: No, Attachment S.

THE WITNESS: Yes, I can --

4 BY MS. FRANZETTI:

Q. Please, go ahead and explain --

A. For each species?

Q. Yes, if you can. I don't know that

8 there's a different process for each of these

9 species that was used to ensure they weren't

10 misidentified. So you have to answer the question

11 based on your knowledge.

A. Okay. The silver shiner, which there

13 was one specimen currently in the database, that was

14 vouchered.

We checked on that at the museum

16 and that is an emerald shiner. So that can be

17 corrected.

Q. So this was a mistake?

A. Yes.

Q. What about blacknose shiner?

A. The blacknose shiner, on further

22 consideration, we agreed that that was more likely a

23 pallet shiner. We did keep a voucher that the --

24 and it was deposited at the museum.

129

And we are asking them to locate

2 that specimen, make sure it wouldn't be completely

3 out of the realm of possibility to see a blacknose

4 shiner in that area, because they do exist in

5 Illinois, and I believe there is a population in the

6 Kankakee River. But we -- the museum has been

7 unable to locate that voucher, but we did keep a

8 voucher. We did our part on that one.

So my recommendation would be to

10 go with what is more logical. We know there's been

11 pallet shiners collected in that area.

And that's all we can do with it,

13 that's what we recommend doing. The remaining

14 species, I have full confidence in -- my crew leader

15 is a taxonomist -- to be able to identify those

16 species. They're distinctive.

This person has seen these species

18 in other areas of the Midwest, and they are -- for

19 instance, the highfin carp-sucker is very

20 distinctive from the other carp-suckers, that it

21 might be confused with. It's a large fish. I can

22 find out if we have photographs.

Those are -- large fish are very

24 difficult to voucher in the field, they just take up

130

1 so much space. When we say we keep voucher

2 specimens, we keep those specimens that are

3 potentially going to be controversial, like a brand

4 new record, which silver shiner admittedly is.

But it was kept. And we were able

6 to clear that up.

These other species, if there's a

8 question, then a photograph is taken. But these are

9 not uncommon fish to us and to our people and the

10 realm they operate in, so I have full confidence

11 they were able to identify those.

Black redhorse, there is a lateral

13 line scale count that you can do to differentiate if

14 from golden redhorse, which is a species it might be

15 confused with. The crew leader indicates he did

16 that procedure, so I'm willing to accept his

17 identification.

And brown bullhead is a very

19 common fish that we encounter in different areas of

20 the Midwest. And I have confidence that they can

21 identify a brown bullhead and separate it from the

22 species it might be confused with, which is a black

23 bullhead.

And -- so that's my --

131

MS. FRANZETTI: Now --

MS. WILLIAMS: Susan, the Agency would

like, for our ability to respond if we have

anything to say about this, for you to help

point out where these species -- not all of

them. So the blacknose shiner, highfin

carp-sucker and black redhorse are -- no?

MS. FRANZETTI: Counsel, are you

asking me --

MS. WILLIAMS: Where in the data set

they're found in the Des Plaines River?

MS. FRANZETTI: Okay. Why don't we do

that later; okay? I don't want to take -- we

have limited time with Mr. Yoder.

MS. WILLIAMS: Well, I understand, but

I guess we're not agreeing at that point that

those species were found in the Des Plaines

per se, or upper Dresden.

MS. FRANZETTI: Can we defer this to

later?

MS. WILLIAMS: We're only finding two,

and we just want to make sure the record

reflects we're only finding two of those in

the Des Plaines River sites.

132

HEARING OFFICER: But they're -- for

point of clarification, because the Agency is

beginning to distinguish between Des Plaines

River and the Illinois River, which is fine,

except that they are in S -- Attachment S.

MS. WILLIAMS: Oh, yes.

HEARING OFFICER: We agree? Okay.

8 BY MS. FRANZETTI:

Q. Mr. Yoder, if I understand, then,

10 you're telling me that with respect to silver shiner

11 and blacknose shiner, those, you would agree, were

12 misidentified. But with respect to highfin

13 carp-sucker, black redhorse and brown bullhead, you

14 do not agree there is any misidentification of those

15 species?

A. I do not agree that there was a

17 misidentification of those species.

Q. Those last --

A. Is that the question?

Q. Yeah, those last three?

A. I don't agree that those are mis -- I

22 have confidence that those three were identified. I

23 would also clarify blacknose shiner, we are still

24 checking into.

133

Q. And --

A. I agree about silver shiner.

Q. All right. And if you can't find a

4 museum voucher, that right now you can't find, for

5 blacknose shiner, will you still not agree that

6 that's a misidentification?

A. If we can't find the specimen, my

8 recommendation would be to go with pallet shiner.

Q. Now, I know you mentioned for highfin

10 carp-sucker there's no voucher; is that correct?

A. No.

Q. That's not correct?

A. What I heard was "there's no voucher."

Q. Okay. There's no voucher for that

15 one?

A. That I know of. I will check to see

17 if there are photographs.

Q. And if there's a photograph, will you

19 supply it?

A. Yes, I will.

Q. Thank you.

For black redhorse and brown

23 bullhead, are there voucher specimens?

A. We're checking into that.

134

Q. You don't know as you sit here today?

A. No. And there may be -- there may

3 also be photographs that I need to --

Q. All right.

A. We are checking into that -- someone

6 is checking into that.

Q. And once the checking into it is

8 done --

A. We'll report that.

Q. -- will you advise us through counsel

11 for IEPA what is found?

A. Yes.

Q. Thank you.

I'm going to move on to my next

15 prefiled question, 22.

For approximately 50 percent of

17 the fish samples, on which the IBI scores and

18 Attachment S are based, it appears the emerald

19 shiner is included as a "simple lithophile," when

20 the Ohio EPA no longer considers it to be a simple

21 lithophile. Depending on the sample station, is

22 there a result in IBI scores either two or four

23 points higher than they should be?

Does -- it says the Illinois

135

1 EPA -- I would include the Illinois EPA and/or

2 Mr. Yoder -- agree that the treatment of the emerald

3 shiner as a simple lithophile results in overstating

4 the IBI scores for many of the samples and stations

5 included in Attachment S.

MS. WILLIAMS: Do any of the witnesses

know how many samples or stations?

8 BY MS. FRANZETTI:

Q. Well, let's put aside how many

10 stations and let's just focus on whether or not --

11 is there an agreement that the Ohio EPA no longer

12 considers emerald shiner to be a simple lithophile?

A. No. It's lithophile.

Q. Thank you. I'm doing great on

15 pronunciations.

A. But, yeah, we looked into that. And

17 what had happened was that's a somewhat --

Q. Mr. Yoder, can you first just answer

19 the question? Does the Ohio EPA no longer consider

20 it to be a simple lithophile?

A. No, they do not.

Q. Okay. So we're in agreement on that?

A. Yes, we are in agreement on that.

Q. All right. And does Attachment S

136

1 characterize it as a simple lithophile?

A. I believe in the revised version of

3 Attachment S, we made that change.

Q. Oh, all right. So this -- this

5 mistake's been corrected on Exhibit 5 -- Exhibit 6.

Let me correct that. It's not

7 Exhibit 6, we don't have a -- I didn't think we have

8 a corrected version of these IBI scores.

Again, in the interest of time,

10 can I maybe keep going here? And, Mr. Yoder, are

11 there corrected values to the IBI scores that are in

12 Attachment S that we don't have? "We," being me and

13 the rest of the people sitting on that side

14 (indicating) of the wall?

A. That needs to be clarified here.

Q. Okay. Can you clarify it first for

17 me?

A. I can't, no.

MS. WILLIAMS: He's not aware of it.

I would say I do not believe there are any

corrections to Attachment S related to the

IBI summaries in the record; right?

MS. FRANZETTI: Right.

MS. WILLIAMS: Right, there are none.

137

So he's not -- he wasn't aware of them.

So there's nothing in the record

to correct in any IBI scores.

Are there corrections to IBI

scores that need to be put in the record?

THE WITNESS: We made that correction

in our database.

MS. WILLIAMS: And do you have them

with you here today?

THE WITNESS: I believe they're right

here.

MS. FRANZETTI: Okay.

MS. WILLIAMS: We would like to have

copies made, though I'm not sure our copier

has any toner left in it.

HEARING OFFICER: Take it to the Board

office.

MS. FRANZETTI: Okay. But Illinois

EPA is going to produce a copy of the

corrected IBI scores for the fish study?

MS. WILLIAMS: Correct.

MS. FRANZETTI: All right.

HEARING OFFICER: Excuse me. Just

tell John that you need to make copies. Tell

138

him I sent you up.

MS. FRANZETTI: And off the record.

(WHEREUPON, discussion was had

off the record.)

5 BY THE WITNESS:

A. Can I clarify my answer on that last

7 one?

8 BY MS. FRANZETTI:

Q. Sure.

A. Because your question states the IBI

11 scores could be either two or four points higher

12 than they should be. While, conceptually, that

13 makes sense, I have not gone through and done a

14 comparison of the changes to verify that they indeed

15 did change by that.

But, categorically, yes, it makes

17 sense that they would.

Q. Would there be some change, whether

19 it's two points or four points? I don't want to get

20 into details exactly how we score as we did with the

21 QHEI, But will this affect the score?

A. It can. But it also, because it

23 depends on how many emerald shiners were in the

24 sample, and how it then affected the calculation of

139

1 the proportion of the lithophiles in that sample.

If it did not change it enough to

3 change the IBI metric score, then it wouldn't change

4 the IBI. So it would be prudent to actually go

5 score by score and see what the actual change was

6 by comparing this table to the current table in

7 Attachment S.

Q. Well, we're getting a lot of practice

9 at doing that, so I'm sure that can be accomplished.

10 Moving to Question 23.

It also appears that for the fish

12 results included in Attachment S, round goby

13 oriental weatherfish are included in the species

14 count metric when they clearly should be excluded as

15 exotics. Do you agree?

A. Yes, I agree.

Q. Has that correction been made in the

18 corrected version of the IBI fish scores in

19 Attachment S?

A. Yes, I believe it is.

MS. FRANZETTI: That is -- that

completes my prefiled Attachment S questions.

If I can just have a moment with respect to

the additional materials we've been given to

140

see if I have...

HEARING OFFICER: Dr. Girard has a

couple questions.

MS. FRANZETTI: That would be perfect.

DR. GIRARD: I have a question on the

fish data sheet, Exhibit 20, if you could get

a copy there in front of you.

Looking at those fish data sheets,

the -- at the top of the sheet, there are

spaces for collecting additional information.

And on some of the sheets they collected some

other chemical and physical parameters,

conductivity dissolved oxygen temperature.

Was any of this information used

in this study?

16 BY THE WITNESS:

A. No.

DR. GIRARD: Thank you. No further

questions.

20 BY MS. FRANZETTI:

Q. Mr. Yoder, on Page 24 of the QAPP, in

22 the -- what I'm going to call the second full

23 paragraph, the one that begins "Qualitative habitat

24 assessment." If you go towards the bottom of that

141

1 paragraph, five lines up from the bottom over to the

2 right the sentence is:

"Well, we followed the guidance

4 and scoring procedures outlined in Ohio EPA 1989 and

5 Rankin 1989 with some minor modifications made

6 during 2002 and 2003."

My question is, just basically,

8 have we covered now whatever were the modifications

9 that were made to the Ohio EPA and Rankin 1989

10 approaches?

A. I believe we've captured all of that.

Q. Okay. And another question: I think

13 you're familiar with the document that is

14 Attachment R, Mr. Rankin's QHEI report from -- it's

15 either 2003 or 2004, I'm forgetting as I am sitting

16 here.

My question is, if you are

18 familiar with that document, can you tell me whether

19 you basically utilize, other than the impoundment

20 scoring issue, the same procedure as Mr. Rankin did?

A. Yes. Essentially the same, yes.

MS. WILLIAMS: Do you know, Mr. Yoder,

if you and Mr. Rankin were -- studied the

river at the same time of year?

142

THE WITNESS: No.

MS. WILLIAMS: No, you don't know, or

no?

THE WITNESS: Oh, I know that it was

not the same time of year.

MS. WILLIAMS: Can you explain that,

please?

THE WITNESS: The 2006 sampling was

conducted during the standard mid-June to

mid-October seasonal index period, and Ed's

study was conducted in, I believe, March of

'03 or '04, one of those two.

MR. SULSKI: I have to look to see if

it's '03 or '04.

THE WITNESS: Anyway, Ed was there in

March, which is outside of the index period.

17 BY MS. FRANZETTI:

Q. What's the significance of the

19 different times of year in which each of these two

20 studies were performed, if there is any

21 significance?

A. Well, it's -- Ed's study is a little

23 different because he was tasked with just coming up

24 and doing a -- sort of screening. It's primarily

143

1 the CAWS system.

And there was a time to wait for

3 that until the summer. And it was not conducted in

4 concert with the electro fishing sample.

Q. Are you telling me that the best time

6 to do this QHEI data gathering work is in the summer

7 and not March?

A. Yes.

Q. Why is that?

A. The reason is because of -- one,

11 that's where it's primarily calibrated from and

12 developed from. Some important differences can

13 occur.

One, is river flows tend to be a

15 little bit higher in the spring than during the

16 summer. The sampling is supposed to be conducted

17 during normal summer flow conditions, so there are

18 habitat features that are more apparent during that

19 time, perhaps, than might be in March.

Vegetation it growing during the

21 summer, it's not growing in March. And that can

22 contribute to the observations as well.

Q. Did you do any comparison between what

24 he found and what you found to see whether or not it

144

1 made any difference that he was doing it in March

2 and you were doing it in the summer?

A. Just in looking at the results that

4 had been presented, I know there's the difference in

5 the -- I believe it's the Brandon Tail Water site.

Q. What's the difference?

A. I believe Ed's score was -- is it

8 69.5?

MR. SMOGOR: In the Brandon Tail

Water?

THE WITNESS: Yes.

MR. SMOGOR: QHEI?

THE WITNESS: Yes.

14 BY THE WITNESS:

A. And I think the summer index period

16 score was, I believe --

MR. SULSKI: 81.5.

18 BY THE WITNESS:

A. -- 81.5.

20 BY MS. FRANZETTI:

Q. And, by that, you're telling me that

22 you think that difference between 69.5 and 81.5 is

23 due to the time of year?

A. It could be.

145

Q. Okay. You don't know that it is?

MR. SULSKI: They're also in slightly

different locations in the pool. There's

approximately three -- two-tenths of a mile

difference.

MS. FRANZETTI: Okay. Rob, I

understand. I'm just trying to determine do

we know whether, for the locations that

Mr. Rankin has in common with what we'll call

the Mr. Yoder QHEI study of 2006, if there is

any difference in scoring due simply to the

time of the year? If it's a different

location, then that may explain the

difference in the score.

I'm just trying to -- counsel's

made a point about the different times of

year that were both done, I'm trying to find

out if we know for a fact that that made any

difference in how same -- similar sites were

scored. That's all.

Or is it that it just might have?

22 BY THE WITNESS:

A. You know, I would -- to definitively

24 determine that, I would have to sit down and talk in

146

1 detail to Mr. Rankin about that.

2 BY MS. FRANZETTI:

Q. Okay.

A. Once I did that, we could determine

5 that.

Q. And you haven't done that at this

7 point?

A. I have not done that at this point in

9 time.

Q. Okay. Then moving on to Page 26 of

11 the QAPP, there's a paragraph called Non-direct

12 Measurements.

And if you would please read that

14 paragraph, it's a short one, to yourself, it's

15 Section B.9, Non-direct Measurements. If you could

16 just read that to yourself, my question is simply,

17 can you explain what is meant by these nondirect

18 measurements described in that text?

A. Do you want me to read it first or

20 just --

Q. Yeah, you should read it to yourself

22 so that you can then explain it to me.

A. You want me to read it into the

24 record?

147

Q. You know, I don't want to make you

2 read it out loud. If you went to, be my guest.

A. What this has to do with is an EPA is

4 interested in these QAPPS to know, generally, what

5 other kinds of concepts we might apply. And again,

6 these are -- these QAPPS, it's -- the individual --

7 each individual grant requires a QAPP.

But there's a larger context going

9 on here where we've bundled different grants

10 together to support sort of the same objective, and

11 that is to develop a better understanding, for large

12 rivers in the Midwest, what the inherent properties

13 are that would lead us to better define potential

14 assemblages so that we might base, for example, tier

15 designated uses, we might extract that out of this

16 as the baseline work.

So to do that, you inherently --

18 the biological condition gradient, its concept is

19 anchored in natural undisturbed conditions. We know

20 we don't have that presently in very many places, if

21 any, in the Midwest, but we still have to know what

22 it is.

So the only information you have

24 is historical information, which tends to be

148

1 inherently qualitative in its nature. It's not

2 something we can take and calculate and index a bio

3 integrity problem.

But we can understand the

5 qualitative attributes of that and sort of

6 understand it would be obvious to see that there are

7 certain species that no longer occur or in very

8 reduced abundance. And if they were here, what

9 would they do to something like the IBI?

So that's what we're trying to

11 develop is more global understanding of what our

12 rivers look like so that we can appropriately say

13 when we meet something like a minimum clean water

14 use where does that fall on the biological condition

15 gradient. What tier on the biological condition

16 gradient does that fit.

So -- and it helps us sort of

18 anchor our expectations so that when we see a river

19 and we see it in a particular state, we know how far

20 away that is from this more ideal state and the

21 biological integrity objective of the Clean Water

22 Act.

Q. Thank you.

Mr. Yoder, staying on that page

149

1 down under Group C, Assessment and Oversight, C(1)

2 Assessments and Response Actions. It's stated in

3 the third line, "However, the stakeholder

4 organizations will be afforded an opportunity to,

5 make inspections and audits of the field sampling,

6 the equipment and the result."

I think you would agree, based on

8 the other day, Dave's testimony, that in this

9 instance the UAA stakeholder group was not afforded

10 an opportunity to make inspections and audits of the

11 field sampling, the equipment and the results?

A. That's correct, as we pointed out

13 yesterday.

Q. Turning the page to Page 28, under

15 Group D, Data Validation and Use Ability, there's a

16 reference made to the fact that data may be

17 disqualified, although attempts will be made to

18 reconcile any inconsistencies or issues prior to

19 disqualification.

Are you aware of whether any data

21 collected with respect to the sampling work done

22 within the geographic area of this Lower Des Plaines

23 UAA was disqualified?

A. None of the biological or habitat data

150

1 was. The only thing I can say that we're having an

2 issue with right now is some of the field meter data

3 that we collected. We know that we had problems

4 with the meter, that's why that data wasn't used.

Q. I'm sorry, field metering data, is

6 that what you're saying?

A. Yeah, the data you collect with a

8 water quality meter, particularly the pH probe was

9 faulty. So in terms of data that might be on these

10 sheets, that's the only data I could honestly say

11 that we have discounted or disqualified.

Q. Right.

DR. GIRARD: May I ask a follow-up

then?

Looking back to Exhibit 20, your

first fish data sheet there, you have a

dissolved oxygen reading of, I assume, 22.3

milligrams per liter. That's Exhibit 20, the

first sheet.

Is it possible you also had a

problem with your oxygen probe?

THE WITNESS: That's a possibility,

and we're looking into that before we put it

to any use.

151

DR. GIRARD: So when you answered the

question about whether you used this data,

you didn't use it in this study, but you

still enter it in a database?

THE WITNESS: No. It's just -- it's

recorded on this sheet and we haven't

resolved the entry into the electronic

database yet.

DR. GIRARD: Thank you.

THE WITNESS: Again, this is part of

this bigger study that we're still in the

process of amassing the information for.

HEARING OFFICER: Mr. Safley?

MR. SAFLEY: Yes. Thank you. If I

could ask a follow-up question on that same

point.

17 BY MR. SAFLEY:

Q. For example, with the dissolved oxygen

19 score here, would that have been one measurement at

20 one location within the 500 yards, or is there some

21 kind of collection along the 500 yards and its

22 average, or how does that number --

A. That's a grab sample beginning at the

24 site.

152

Q. Okay. Is the same true for

2 temperature and conductivity?

A. Yes.

Q. So it's one sample by this meter and

5 the same meter does all those things?

A. Yes.

Q. And so, it's a grab sample from the

8 top? There's no temperature taken at the bottom of

9 the river?

A. No. There's not integrated depth

11 profiling done. They're just surface grab data.

Q. Okay. And do you know whether there

13 were any concerns with whether the temperature

14 function was properly done?

A. Yeah, these -- it was determined that

16 the temperature and the conductivity functions were

17 reliable, it's the DO and the pH part of this probe

18 we had an issue with the supplier.

MR. SAFLEY: Okay. Thank you.

MS. FRANZETTI: I don't have any

further questions.

HEARING OFFICER: Wonderful.

MS. WILLIAMS: May I ask just a couple

similar points to what Susan -- are we taking

153

a break?

HEARING OFFICER: Let's go ahead and

take -- we'll get your questions and we'll

take a break to switch tables.

5 BY MS. WILLIAMS:

Q. I think earlier this morning,

7 Mr. Yoder, we had talked about, I don't know if it

8 was the Board that had asked you or Ms. Franzetti

9 about the numbers in the Grant Creek site on

10 Exhibit 5. Do you have that in front of you?

Have you learned any more about

12 why the numbers in Grant Creek don't match the

13 numbers on the sheets?

A. Yeah, I checked on that, and that's

15 because that data sheet was not entered in our

16 electronic database. And so, when we reproduced

17 this report, those are the pre-revision values

18 still, and --

Q. Do you know why?

A. Because the data entry person was told

21 to re-enter the Des Plaines River data and that's at

22 Grand Creek, and it didn't get done.

Q. Makes sense to me.

Also, I think I was a little

154

1 confused, and if you think you've explained it

2 thoroughly, that's fine. But on the first -- on

3 Exhibit 7, we have your QHEI field sheets.

And the first section on those

5 field sheets, Substrate, I think I'm still a little

6 bit confused about how you go about adding up those

7 columns and translating them into a total. Do you

8 think you could explain that again?

A. Yes. And I think the answer I gave

10 this morning was incorrect, and I apologize for

11 that.

But if you look just to the left

13 of the box number of substrate types underneath, it

14 says, "High quality only, score of five or greater."

15 So only the substrate types that would yield the

16 score of five or greater are included in that.

And that's why only three or less

18 was checked, even though there's five checkmarks.

19 Two of those were less than five. So I apologize

20 for that oversight.

MS. WILLIAMS: That helps me. I think

that's all I have for now.

HEARING OFFICER: Let me double check

on that last answer with substrates.

155

MS. WILLIAMS: Sure.

HEARING OFFICER: When you say a score

of five or more, you're talking about the

number in the brackets has to be above five

for it to be counted.

THE WITNESS: That's correct.

HEARING OFFICER: Okay.

MS. WILLIAMS: And can you -- is there

a reason for that? Do you want to explain

why you do it that way or what the

significance of it is?

THE WITNESS: I think that what's

going on there is that that's a -- the idea

is there that the high quality types of

substrates are the ones that are trying to

be, quote, unquote, "reordered" at a site and

not the lower quality substrate type, even

though they do get some value, they're

getting less value and we're not amplifying

that any more than we need to in the scoring.

So it's a weighting type of issue.

MS. WILLIAMS: That's all I have.

HEARING OFFICER: Let's take a

ten-minute break and we'll switch

156

questioners.

(WHEREUPON, a recess was had.)

HEARING OFFICER: Before we start with

Mr. Ettinger, Mr. Yoder, I believe we have

something else we're going to enter as an

exhibit. And we are still waiting for stuff

to be faxed in.

And this is the revised

Attachment S data; correct? It's entitled

Table 1 Boat IBI scores and metrics at boat

sites in the Des Plaines River sampled by MBI

during 2006. If there's no objection, we'll

will mark this as Exhibit 21.

Seeing that, it's Exhibit 21.

(WHEREUPON, a certain document was

marked Exhibit No. 21 for

identification, as of 2/1/08.)

18 BY MR. ETTINGER:

Q. Mr. Yoder, I'd just like to call your

20 attention to Page 11 of Exhibit 15, your report.

21 You mention the long-term survival temperature is

22 calculated from the short-term survival temperature,

23 i.e., the UILT, as UILT minus two degrees.

And we discussed that yesterday as

157

1 to how that two degrees was derived?

MS. WILLIAMS: Can you point him to a

paragraph?

HEARING OFFICER: It's the second full

paragraph.

MR. ETTINGER: It's the bottom of the

second full paragraph on Page 11.

HEARING OFFICER: I know, it's been a

long week.

10 BY MR. ETTINGER:

Q. Do you know if there are any protocols

12 that suggest using that minus two degrees centigrade

13 figure?

A. Right off the top of my head, what I

15 recall is, it's been kind of a longstanding rule of

16 thumb, that it's in use.

Q. I gather you've read a lot of studies

18 of the affect of temperature on fish; is that true?

A. Yes. We've reviewed a number.

Q. About how many?

A. Well, there's more than, I think, 500

22 references in the ORSANCO document, so...

Q. Okay.

HEARING OFFICER: Albert, remember to

158

keep your voice up.

MR. ETTINGER: Yes.

3 BY MR. ETTINGER:

Q. When you -- if you have a study

5 in which they have studied a number of different

6 fish, would you expect all of the -- of a given

7 species -- would you expect all of the fish to die

8 in unison at a particular temperature?

A. No.

Q. Okay. So let's say I'm studying 20

11 fish, and the first one dies at 85 and the last one

12 dies at 95, how would you go about figuring out what

13 temperature to report as your conclusion?

A. Well, one of the techniques that is

15 used that can serve as an example of that would be

16 the lethal temperature that killed 50 percent of the

17 test fish.

Q. And so, is that the number you would

19 use, generally, the number that killed 50 percent?

A. That's one of the common endpoints

21 that was used and that could be expressed as an

22 incipient lethal temperature or a critical thermal

23 mass.

Q. Are there other tests used? Are there

159

1 other ways to derive your number that are used, I

2 mean, for some of the studies? If, for example, we

3 had a range of fish dying from 85 to 95, would you

4 use either the 85 or the 95 figure?

A. No, what most of these tests would use

6 is the temperature at which half the fish died, test

7 fish.

Q. Looking now at Page 12, stated,

9 "Averages should be consistent with" -- and then it

10 says No. 2, "Growth of commercially or

11 recreationally important fish species."

Did you make a determination to

13 what the commercially or recreationally important

14 fish species would be?

A. Yes.

Q. And how did you do that?

A. Well, that's -- any fish that we

18 consider to be something that people would actively

19 try to go out and catch recreationally, or a species

20 that we knew was commercially being harvested in a

21 particular water body.

Q. Do you know if people actively go out

23 and recreationally attempt to catch walleye?

A. Yes.

160

Q. On No. 3, it talks about growth of at

2 least 50 percent of the nongame species. What is

3 meant exactly by "growth" here?

A. Well, that's the -- it means that mean

5 weekly average temperature for growth threshold.

Q. And that's a calculated number based

7 on these other studies?

A. Yes. That's the first cut.

But there would be the option to

10 look in the literature compilation and use another

11 earth value.

Q. Proceeding down the page, you have a

13 sentence here, and I'll just read it, "It also

14 includes the knowledge that fish can avoid or

15 withstand occasional exceedances of short-term

16 survival thresholds, provided that local refuges are

17 available and/or the duration of the exceedances are

18 sufficiently brief. See Figure 1."

Did you make any study as to the

20 local refuges that were available in the Upper

21 Des Plaines Pool?

A. No.

Q. Do you know if there are local refuges

24 available in the Upper Des Plaines Pool?

161

A. Again, that's something I haven't been

2 asked to look at in detail.

MS. WILLIAMS: Can we clarify, Albert,

when you say Upper Des Plaines, do you mean

Upper Dresden Island?

MR. ETTINGER: I'm sorry. Upper

Dresden Island, yes, exactly. Thank you very

much.

9 BY MR. ETTINGER:

Q. Have you -- are you aware of fish

11 swimming up into the discharge channel of power

12 plants during the winter?

A. I have had occasion to observe that,

14 yes.

Q. To finish that sentence you say, "And

16 provided local refuges are available and the

17 duration of the exceedances are sufficiently brief."

Can you give us any sort of

19 quantification of what "sufficiently brief" means

20 here?

A. Well, the general notion there would

22 be sufficiently brief so as not to cause detectable

23 issues with the assemblage through a bio assessment,

24 perhaps.

162

Q. Okay. Well, based on your study of

2 the literature and your study of fish in the

3 Midwest, what sort of period would we be talking

4 about is sufficiently brief, ten minutes, ten days?

5 Can you give us some sort of range as to what

6 sufficiently brief might mean?

A. I think we're probably talking no more

8 than a few days and preferably a few hours.

Q. And the next sentence says, "Meeting

10 the long-term period average requires attenuating

11 cool-down periods where temperatures are well below

12 the survival thresholds and closer to physiological

13 thresholds for growth and maintenance."

How soon do the cool-down periods

15 have to occur for this to help the fish?

A. Well, based on some of the literature

17 we've reviewed and some of the newer studies, which

18 are, I think, finally taking that aspect into

19 account -- and that was the reference to Figure 1,

20 in the document in Exhibit 15. That is by a study

21 by Billheimer and Bennett, a paper that was

22 published.

And it's a graphical illustration

24 of just that concept. That there's -- as you

163

1 approach this maximum temperature for survival,

2 you're in the realm of what's creating thermal

3 stress for the organism.

And that -- I think I stated

5 yesterday -- we don't think that we can keep those

6 organisms there for a long period of time. And I

7 think that's supported by this -- the conclusions of

8 these authors as well.

So what they're saying is you can

10 have these stress periods, provided they're of a

11 fairly short duration, provided there are also

12 concurrent recovery periods that are well below the

13 threshold and -- of stress. And so, that's the

14 concept.

And I think we're -- I also

16 described some management applications of that at

17 electric generating facilities, where that was

18 actually written into the one permit that I talked

19 about in Ohio on the Muskingum River.

Q. So I guess my question is how fast

21 does the temperature -- how soon does the

22 temperature have to get down to relieve the stress

23 in order to have this effect of, shall we say,

24 renewing the fish?

164

A. I would say -- and again looking at

2 this graph, it does have a timeline on it. And it's

3 within a matter of days that it needs to occur over.

And I recall when the -- I think I

5 recall from the permit that there were -- there were

6 actually some times specified as to what the

7 cool-down periods needed to be.

Q. I'm sorry, if I'm repeating something

9 that was said earlier: Did we identify a particular

10 permit for a particular plant in the record yet?

A. I think it was the Muskingum River

12 Plan that discharges to the Lower Muskingum River.

Q. Is this American Electric Power?

A. Yes, it is.

HEARING OFFICER: Remember to speak

up, Albert --

MR. ETTINGER: I'm sorry. It's late

in the afternoon and my energy is way down.

MS. WILLIAMS: You're welcome to have

my mic.

MR. ETTINGER: Maybe I need a

cool-down period, I should take a walk

outside.

HEARING OFFICER: It's balmy out

165

there, 25 degrees.

MR. ETTINGER: Yeah.

HEARING OFFICER: It's springtime.

MR. ETTINGER: But you've got to watch

out for the cabs. They really seem to be

taking a relish in seeing how fast they can

run through those puddles.

8 BY MR. ETTINGER:

Q. I'd like to read the -- going on to

10 Page 14. It states in the last two lines of

11 Page 14, "The growth criteria of sauger and walleye

12 are exceeded by the period average of 27 degrees

13 centigrade by .1 degree centigrade and .8 degree

14 centigrade respectively. That is using the proposal

15 that included the stonecat madtom data; is that

16 correct?

HEARING OFFICER: The RAS 3?

MR. ETTINGER: Yes. I'm sorry, RAS 2.

19 BY MR. ETTINGER:

Q. Is that preparing the growth

21 temperature of sauger and walleye with the RAS 2

22 numbers?

A. Yes, that would have included

24 stonecat.

166

Q. Above that, we state, "We also tested

2 effluence of species' additions by adding yellow

3 perch, sauger and walleye, while these species were

4 not included in the review of historical data and

5 occurred in very low numbers in the 1994 to 2002

6 databases. Each occurs in the Kankakee River or the

7 CAWS, and they could probably occur in the Lower

8 Des Plaines River, as water quality conditions

9 improve in the future."

What was the basis of your

11 conclusion that those species could possibly occur

12 in the Lower Des Plaines River as water quality

13 conditions improve in the future?

A. I think the first part of this is it's

15 not unreasonable to conclude they would inhabit a

16 river of this size at some point. And, perhaps,

17 their absence or reduced abundance is due to the

18 currently marginal water quality conditions that

19 exist.

And I recall part of the basis is

21 my recollection from participating in biological

22 subcommittee that I was able to hear about some of

23 the pollution controls that had not yet come fully

24 and on line that might, when they do come on line,

167

1 help improve water quality and, in my experience, we

2 have actually observed rivers to fully recover to

3 meet clean water eco uses with treatment

4 improvements, maybe not identical to what's going on

5 here, but categorically, somewhat similar to what's

6 happening in this area. So in a general sense --

7 and again, that all has to happen and it has to be

8 successful.

But if it does happen, then it's

10 not unreasonable to conclude that the species could

11 inhabit a river, like the Lower Des Plaines.

Q. Let's talk about your experience.

13 Where are some of these success stories? Could you

14 tell us about any of them?

A. Well, I mean, the documentation for

16 most of these is from Ohio, where we have a

17 sufficiently lengthy standardized database to be

18 able to demonstrate those. There are several papers

19 that we've written that report on this. And there's

20 the Ohio EPA's documentation.

Q. What rivers have recovered like this?

A. Well, the one we have highlighted and

23 probably have the longest range studies on, one is

24 the side of the river downstream of Columbus Ohio,

168

1 which is -- I believe I described some of this

2 yesterday -- it's impacted by the combined 200

3 million gallons a day of sewage, and it's also

4 comprised of sewage flow during most summers for a

5 proportion of its flow is effluent of the sewage

6 plants. And the biota in those rivers has improved

7 to meet the Ohio warm water habitat bioferteria,

8 which are the same thresholds that the UAA study

9 looked at and have surpassed those in some cases.

Q. Have any of these comeback stories

11 involved improving controls on thermal discharges?

A. I believe I mentioned one of these

13 yesterday, the Muskingum River, that -- certainly

14 the only difference there is that's not a river

15 that's heavily impacted at that point by municipal

16 or other point source pollution sources. Those are

17 somewhat distant in that water shed.

But we did note an impairment and

19 a recovery due to thermal impact.

Q. And that was from the American

21 Electric Power Muskingum Plant?

A. That's correct.

Q. I'd like to direct your attention now

24 to Page 11 of your prefiled testimony. I believe

169

1 this has to do with the secondary contact RAS list.

And I just wanted to make sure I

3 understood one sentence here, "The long-term

4 survival values of only 50 percent of the

5 representative aquatic species on my secondary

6 contact RAS list would be protected by a standard of

7 93 degrees Farenheit, while 100 degrees Farenheit

8 exceeds the short-term and long-term survival value

9 for more than 50 percent of the species on the RAS

10 list developed for the Lower Des Plaines River."

Are you saying -- I'm sorry.

MS. FRANZETTI: Off the record.

(WHEREUPON, discussion was had

off the record.)

15 BY MR. ETTINGER:

Q. I was actually asking about

17 Exhibit 13, I believe.

MS. FRANZETTI: Off the record.

(WHEREUPON, discussion was had

off the record.)

21 BY MR. ETTINGER:

Q. Okay. My question is -- has to do

23 with the -- exceeds the short-term and long-term

24 survival values of more than 50 percent of the

170

1 species on all the RAS lists developed for the Lower

2 Des Plaines River.

What species were you referring

4 there to with regard to the 100 degrees Farenheit?

A. The -- it would be the eight species

6 that were included in the secondary contact option.

7 So those eight species.

Q. So you're saying that this exceeds the

9 short-term and long-term survival values of the

10 these eight, not so self-respecting fish and that

11 list?

MS. WILLIAMS: Can you repeat the

question, Albert?

THE WITNESS: I'm sorry.

15 BY MR. ETTINGER:

Q. I'm just saying it exceeds the

17 short-term and long-term survival values of more

18 than 50 percent of those eight species.

A. Just so I understand, are you asking

20 about the 100 degree standard?

Q. Yes. Actually, I'm just asking about

22 this last sentence in the -- well, it's the first

23 paragraph, not the first full paragraph. But on

24 Page 11 of your prefiled testimony.

171

A. Okay. You're asking if --

HEARING OFFICER: Let's try this:

What does that statement mean?

4 BY MR. ETTINGER:

Q. I'm just confused by that last

6 sentence in that paragraph, starting, "The long-term

7 survival values of only 50 percent of the

8 representative aquatic species on my secondary

9 contact RAS list would be protected by a standard of

10 93 degree Farenheit, while 100 degrees Farenheit

11 exceeds the short-term and long-term survival values

12 of more than 50 percent of the species on all the

13 RAS lists developed for the Lower Des Plaines

14 River."

A. Yes, so the 93 degrees would exceed

16 the long-term survival values for half of the RAS,

17 while the 100-degree standard would exceed both the

18 short and long-term values for more than 50 percent

19 of the species on all the RAS lists developed for

20 the Lower Des Plaines River.

Q. Well, is the 100 degrees protective of

22 the list of eight that you used for the secondary

23 contact waters?

A. For the -- I think for the short-term

172

1 it's not. Let me back up here.

I think the way we tried to frame

3 that was by looking at Table 3 and looking at the

4 50 -- 15 percentile.

HEARING OFFICER: Table 3 in

Exhibit 15?

THE WITNESS: Yes.

MS. WILLIAMS: It's HH.

THE WITNESS: Well, it's HH because of

the revision.

11 BY THE WITNESS:

A. And so, you would need to meet an

13 average temperature of 91.2 and a maximum

14 temperature of 94.8 to protect 50 percent of the

15 species. So you conclude if the temperature is

16 higher than those values, then you're protecting

17 less than 50 percent of those species.

If you wanted to find out if

19 you're protecting of the species, you could go back

20 to Appendix Table 3(g) and just look and see where

21 the most -- where 100 degrees compared to the --

22 where it fell. And it appears that that would be

23 above all eight species' upper incipient lethal

24 temperature, which is the basis for the short-term

173

1 survival value.

Q. Okay. This morning and afternoon,

3 Ms. Franzetti asked you about various studies of

4 habitat and IBIs for locations. And I believe we

5 determined that some of the locations were outside

6 of the area between the I-55 bridge and Brandon Road

7 Lock and Dam that was primarily the focus of the

8 studies here.

What relevance do you see to the

10 habitat and IBI scores that were taken that were

11 outside of that particular range between I-55 and

12 Brandon Road?

A. I think, if I understand your

14 question, the -- well, it might help by saying what

15 was the -- why did we sample outside of that area?

Q. That's a better question, why don't I

17 ask that instead.

A. Okay. Part of our objective in doing

19 this sample was to gather information across a

20 pollution gradient that would lend itself to our

21 regional studies. And the other issue is we wanted

22 to conduct as best we could an assessment of what we

23 understand to be the full pollution impact through

24 this area.

174

And so -- and this is, again,

2 embedded in -- our intensive survey design is that

3 you need to have the areas of immediate impact, you

4 need to have the areas of recovery and then you need

5 to have, as best you can, areas that have fully

6 recovered. And if you follow the pollution concept

7 of a pollution continuum, and knowing this area and

8 its pollution history, that would occur very far

9 downstream of this area.

So we had to include, as much as

11 we could, areas well downstream of this. I think we

12 came into this knowing the upstream was fairly

13 challenged.

And we did locate, at least an

15 upstream site above the Brandon area of influence to

16 kind of anchor that aspect of this design. But I

17 think that to get a fair understanding of where

18 anyplace along one of these rivers fits, you need to

19 have the prospective of this whole pollution

20 gradient through -- and this just isn't common to

21 the Lower Des Plaines, it would be a fact in any

22 river that you look at.

And it -- oftentimes ends up that

24 you almost have to end up looking at tens of miles

175

1 of river, even though your concern might be only in

2 a two or three-mile stretch or a five-mile stretch.

If that's all you look at, you can

4 really be challenged to know where am I on this

5 pollution gradient, bio condition gradient

6 continuum.

Q. Were you able to draw any conclusions

8 based on this data that you took from outside the

9 immediate area of the UAA?

A. No. As I said before in my testimony,

11 I haven't been asked to do an analysis in that

12 regard. We will be doing that as part of our

13 regional work.

Q. Are you aware of any effects on the

15 Lower Des Plaines below the I-55 bridge or at the

16 Upper Illinois River of the Exelon Dresden nuclear

17 plant?

A. No.

Q. I'd like to direct your attention now

20 to Page 17 of the MBI report, Exhibit 15. And

21 looking at the first full paragraph, the middle of

22 the -- sort of the middle of the first full

23 paragraph it says, "None of the values in Table 5

24 exceeded the spawning criteria for any of the RAS

176

1 options MBI 2005 and all except one value in July

2 were below the summer average and maximum tolerance

3 values for RAS options used in Table 4."

Did you ever check to see whether

5 the numbers that the Agency has proposed exceeded

6 the spawning criteria that were contained in

7 Table 5?

A. No, I haven't looked at the values the

9 Agency proposed.

Q. Can we look at Table 5?

MS. DEXTER: It's Exhibit 16, Appendix

Table Z(3).

HEARING OFFICER: Exhibit 16?

MS. DEXTER: Appendix Table Z(3).

15 BY MR. ETTINGER:

Q. Do you have Table 3 in front of you?

17 I was just asking or trying to understand this chart

18 here.

Let's just take a species, greater

20 redhorse. We have a number here for -- do you see

21 where I am?

You have 14.5/17.5. And it's

23 under June for greater redhorse. Do you see that?

A. Right. I see it.

177

Q. Yeah. What is the meaning of those

2 numbers?

A. Well, that's what the study referenced

4 on the right observed -- they observed spawning. At

5 least that publication recorded that they saw --

6 that they observed spawning taking place at those

7 temperatures in that month.

Q. And the 17.5, what does that

9 represent?

A. I know the study, I'm trying to recall

11 what it said. That's a -- that's like a low -- an

12 upper range that they had measured, while the

13 spawning was taking place.

Q. Does that mean that the fish might

15 have trouble spawning at a temperature above that?

A. No, it doesn't mean that.

Q. What does it mean?

A. It's just what they observed in that

19 particular situation.

MR. ETTINGER: I'm done.

HEARING OFFICER: Does anyone else

have anything for Mr. Yoder?

Yes, Mr. Andes.

Would you identify yourself for

178

the court reporter, please?

MR. ANDES: I'm Fred Andes, from

Barnes & Thornburg, counsel for the

Metropolitan Water Reclamation District of

Greater Chicago.

6 BY MR. ANDES:

Q. Mr. Yoder, we have a few questions.

First, as to the QHEI procedure,

9 on Page 17 of the QAPP. Several of the metrics

10 evaluated in the QHEI, when applied to the cause,

11 don't vary and are fairly unique.

For example, velocities

13 artificially controlled gradient is low throughout

14 due to alterations and channelizations. There's no

15 natural sinuosity, no pool, run, ripple development.

How do you think these factors,

17 and really the lack of variability, affect how the

18 QHEI applies in the cause?

A. Well, those factors will certainly

20 affect the resulting QHEI that we obtained from that

21 area. So those will influence the type of score

22 that is derived.

Q. Okay. I guess what I'm getting to is

24 do they -- if these were factors, and in most

179

1 situations vary somewhat, and here they are sort of

2 low throughout the water body, how does that -- is

3 there a way in which that's recognized -- the sort

4 of uniqueness of how those exist here, is that

5 recognized in the QHEI approach?

A. Yes, it will be detected by the QHEI.

Q. Okay. Are there other physical

8 habitat metrics that could be relevant to this type

9 or urban channel that aren't included in the QHEI

10 since it was developed for sort of a different kind

11 of situation?

MS. WILLIAMS: Objection. I don't

think he testified that it was developed

for --

HEARING OFFICER: I can't hear.

MS. WILLIAMS: Can you read --

MR. ANDES: Fine. Strike the last

part of that question.

19 BY MR. ANDES:

Q. The question is, are there other

21 metrics that might be useful in developing this type

22 or urban channel?

A. I won't rule out the possibility that

24 there might not be some. But in knowing the purpose

180

1 and use of the QHEI to evaluate the suitability of

2 habitat to meet a -- you know, conditions along the

3 entire biological condition gradient, I -- I'm not

4 sure there's really anything else I would pull off

5 the top of my head immediately.

And, I mean, we are aware of other

7 habitat tools and techniques. And they -- from what

8 I've seen, they all tend to have the same general

9 things in common.

So it's -- if you're implying that

11 the CAWS is heavily modified and highly altered,

12 yes, that will be picked up in this.

Q. Okay. Another question as to the

14 field data sheet, Page 17.

Under Substrate Type, embeddedness

16 is evaluated as extensive, moderate, normal, none

17 and substrate qualities based on extent of silt --

18 score based on extent of silt. Are these evaluated

19 relative to -- particularly when we talk about

20 normal, I guess my question is what's normal?

Is normal a natural rivering

22 system, is normal relative to other waterways in

23 this system?

A. Yes. It's always in regard to a

181

1 natural rivering system that is representative of

2 that particular regional area.

Q. Okay. So what would that be here?

A. Well, that would be other

5 similarly-sized rivers and streams in the -- I'd

6 start with the Illinois drainage basin and go from

7 there. But, I mean, if we were to set up a more

8 formal set of criteria and try to calibrate it for

9 this region, then we would endeavor to go find a

10 gradient of what we call least impacted rivers

11 through a gradient of varying impacts all the way up

12 to places like the CAWS.

Q. You would, but that hasn't been done

14 here, is that what you're saying?

A. Well, it hasn't been done here, but

16 we're in -- our regional studies are dealing with

17 that right now.

Q. Okay. On the issue of sediment, and

19 we will provide data on this issue eventually for

20 the record.

Sediment samples from the CAWS

22 exhibit old sheens, odors, hydrogen sulphate odors,

23 other evidence of poor quality. How, if at all, can

24 those be an accounted for in the QHEI?

182

A. Well, they're not. And I'm not --

2 it's not appropriate.

That would be accounted for

4 through some type of chemical analysis.

Q. But they are -- those -- the poor

6 sediment quality would be relevant for organisms;

7 correct?

A. Yes.

Q. In terms of habitat, it would affect

10 the habitat quality?

A. Well, it would affect the macro

12 suitability. But, I mean, the intent of the QHEI is

13 to evaluate physical habitat not chemical habitat.

And it's intended that if we were

15 to do a complete evaluation of the system, like the

16 CAWS, we would absolutely have to have chemical data

17 to go along with that.

Q. Would that include not only as to a

19 particular chemical constituent but also sediment

20 toxicity?

A. It could, yes.

Q. As to sludge deposits, which can be

23 observed in the sediment samples, how would those be

24 classified within the QHEI protocol? I know you

183

1 have classifications of muck, silt, artificial -- we

2 weren't sure where sludge would fit in that.

A. That's something we do consider.

4 Sludge that emanates from, say, a point source or

5 obvious sewage sludge, it's not included as one of

6 these substrate types, we regard that as a pollutant

7 source. And that's part of the issue here, is we're

8 trying to separate out the physical factors from the

9 chemical and other pollutional-type influences.

Q. So if deposits were observed, would

11 there be a decision made as to whether those

12 deposits were, say, sludge versus some other type of

13 deposit? And then, if they were sludge, they would

14 simply not be factored in?

A. Right. To the QHEI score itself.

Q. Right.

A. That's correct.

Q. Okay. Metric No. 5 indicates that if

19 the maximum depth of a pool is greater than one

20 meter, the highest score is recorded for a sampling

21 station, six points. Would all the stations in the

22 CAWS be given that score as long as the channel

23 depth was greater than one meter?

A. At this point, yes, it would.

184

Q. How do you define pools? I'm trying

2 to get a sense whether all areas of the CAWS would

3 be defined as pools.

So is there a way that that term

5 is being defined here for purposes of that

6 assessment?

A. Let me refer to the --

Q. I know that on Page 35 there was a

9 definition of pool, we just weren't sure how that

10 would be applied here.

Page 35 of the QAPP.

A. Yeah, it's the area of the stream with

13 slow current velocity and the depth greater than

14 ripple and run areas. And we know that there are no

15 longer ripple and run areas, so it's --

Q. So that would have the entire CAWS

17 would be a pool --

A. Yeah.

Q. -- or a collection of pools?

A. It could also be considered a glide

21 habitat as well. Which is also -- "Which is an area

22 common to most modified stream channels that do not

23 have distinguishable pool, run and ripple habitat.

24 Current and flow similar to that of a canal, the

185

1 water surface gradient is nearly zero."

So we could, in that case, also

3 classify it as a glide habitat.

Q. But it -- but the points being awarded

5 are based on?

A. The points are currently the same,

7 yes.

Q. Okay. Another question concerning the

9 QHEI approach is, does the percent of imperviousness

10 in the water shed factor in at all?

A. Not directly as a measurement of the

12 QHEI.

Q. Now, there are some water shed related

14 factors, such as --

MS. WILLIAMS: Could you let him

finish the answer?

MR. ANDES: I'm sorry?

MS. WILLIAMS: Could you let him

finish the answer?

MR. ANDES: Oh, sure. I didn't

realize he wasn't done.

22 BY THE WITNESS:

A. Yeah, it's not an obvious metric of

24 the QHEI. It could influence the Riparian score

186

1 somewhat.

But it certainly could influence

3 the additive effect of other things through that

4 score. I mean, I could see a number of places

5 where, if you have a high density and impervious

6 surface it would contribute to the substrate

7 character, flow, channel morphology and so forth, a

8 number of things that this could pick up.

Q. So you're saying it would be

10 considered only indirectly, through other metrics?

A. Well, it could be another factor that

12 we correspond to, the resultant QHEI and it's

13 attributes. And if it added up as an impervious

14 surface, it may well be one of the driving forces

15 behind that.

Q. Okay. On channelization, in testimony

17 of that metric in the field sheet, the categories

18 include nonrecovered, recovering, recent or no

19 recover or impounded. Can you define recovered and

20 recovering, or is that already -- and how do you

21 determine -- on Page 45 of the QAPP, these terms are

22 discussed? I guess I'm wondering how the

23 distinction is made between recovered and

24 recovering.

187

A. I think that's the part of the

2 recognition and experience with those types of

3 modifications that we expect users to have or

4 develop with this. And we do cover, in the

5 training, to actually show examples of these types

6 of things so the right assignment can be made.

And it's -- "recovered" means that

8 it's a stream that might have been subject to

9 channelization in the past, but it hasn't been

10 maintained or hasn't been repeated and the natural

11 fluvial processes have resulted in a more natural

12 appearing stream course. And again, that would

13 pertain to what's natural for that region or what's

14 least impacted.

Recovering means it still has some

16 of the lingering effects of the original

17 modification, but yet it's in a process of

18 attempting to recover those. So in an agricultural

19 stream, that would be maybe the, sort of, the high

20 flow channels still resembles a ditch but we're

21 starting to see it meandering low to low channels at

22 the bottom of the ditch.

That would be something that is in

24 the process of recovering. If that had regrown its

188

1 woody vegetation and kind of eradicated all the

2 vestiges of the channelization, then that would be

3 considered recovering -- recovered.

Q. And then, since there was a separate

5 category for impoundment, would all of the CAWS

6 receive the minus one score as impounded?

A. Not unless it was due directly to the

8 effects of the dam. I would think that most of the

9 CAWS would receive a resent or no recovery score.

Q. Based on --

A. If there's not a dam causing that,

12 it's the constrainment of the channel. And I think

13 we had --

Q. And I'm sorry, your classification of

15 it is recent or no recovery because it shows no

16 significant recovery of habitat under this

17 definition?

A. Yes.

HEARING OFFICER: Excuse me, if I may

ask, and this may be because it's late on

Friday afternoon, but Mr. Yoder, you haven't

personally done QHEI for the CAWS; is that

correct?

THE WITNESS: Personally me, no.

189

HEARING OFFICER: Did you supervise

Mr. Rankin?

THE WITNESS: Yes.

HEARING OFFICER: Because I thought

that was established, but that was a couple

of days ago.

THE WITNESS: And I have been on the

boat in the CAWS. I've seen it.

HEARING OFFICER: I apologize,

Mr. Andes. I wanted to be sure the record

was bringing us back to the relationship.

MR. ANDES: I believe that's all I

have at this time.

HEARING OFFICER: Mr. Safley?

MR. SAFLEY: Yes, Ms. Tipsord, if I

could ask a couple follow-up questions.

17 BY MR. SAFLEY:

Q. Mr. Yoder, to follow-up on one of

19 Mr. Andes' questions with regard to the QHEI field

20 sheets. He asked you with regard to Category 5 pool

21 glide and ripple, run quality max depth, if a depth

22 of more than one meter would constitute a score of

23 six.

And I heard your response as,

190

1 "Currently yes," quote, unquote. Does the fact that

2 you said currently yes mean that that's something

3 that you're thinking about changing or was different

4 in the past and different now, or am I reading too

5 much into your two words there?

A. Well, I mean, I think being a research

7 organization we have to keep an open mind and follow

8 the progress on these things.

Q. Is that something that's currently

10 being considered for change or you anticipate being,

11 or would you just put it out there as a hedge, that

12 you might decide in five years you want to

13 reconsider?

A. It depends on where our project work

15 takes us. If we encounter these and do more work,

16 it's something we will consider looking at as we

17 encounter these.

Q. Is there anything in particular about

19 that max depth column under five that is something

20 you're considering looking at more than anything

21 else on here, or is that just -- is the comment you

22 just made with regard to everything on the sheet?

A. Oh, I think anything is open to

24 further work and consideration. But the max depth

191

1 issue in relation to the CAWS, it -- I can

2 understand where it seems like a disconnect to give

3 it the maximum score on anything.

You know, why would we do that?

5 But I think we have to be very objective when we use

6 these and not color our judgment with what we think

7 this water body is colloquially. And there's plenty

8 other places in this QHEI that will certainly make

9 up and exhibit the efficiencies, if you will, that a

10 highly modified water body like the CAWS has.

Q. And I wanted to ask about that kind of

12 issue, because when I read -- when I look at this

13 and in a greater depth getting a higher score, my

14 thought was does that mean if you go in and dredge

15 it out, you're actually increasing the QHEI score?

A. No, that would be -- the impact on

17 many other variables here would certainly eclipse

18 that.

Q. Okay.

A. But I will say the deeper water and

21 warmer water is, in its own right, generally a

22 positive thing.

Q. Okay. But if that was created

24 artificially by dredging, there would be other

192

1 adverse effects?

A. It would certainly eclipse all

3 those -- well, a good majority of the other metrics

4 would be impacted negatively by that.

Q. I'd also like to ask you just a little

6 bit more about impoundment. And I realize we've

7 talked about this a lot.

But as I've looked through these

9 sheets, on the lower right-hand side there are four

10 boxes, percent pool, percent ripple, percent glide

11 and percent run. And what I noted was if I looked

12 at them correctly, the only locations which were

13 marked as impounded are also listed as 100 percent

14 pooled.

Any of the locations that has

16 anything less than 100 percent pooled is not marked

17 as impounded. Is that -- and I apologize if we

18 covered that, I just don't remember talking about

19 these boxes on the lower right-hand corner before --

20 is that something that's necessarily related, or is

21 that how the decision on impoundment was made or --

22 and I realize you were going to follow up --

A. Well, yeah, impoundment and

24 definitely 100 percent pool habitat when you

193

1 impound, that's sort of the physical manifestation

2 of the impoundment.

Q. Okay.

A. And with respect to -- and, generally,

5 what it does is it inundates the run and ripple

6 habitats.

Q. Okay.

HEARING OFFICER: And that's with

Exhibit 7 again; correct? We're back to the

sheets on Exhibit 7?

MR. SAFLEY: Right.

MS. WILLIAMS: Can I ask a follow-up

at this point, too?

MR. SAFLEY: Yeah.

15 BY MR. WILLIAMS:

Q. I believe this morning, Mr. Yoder,

17 there was some question over one of the sites and

18 whether or not it was impounded. Was that one of

19 the issues you looked at over lunch, or no?

A. Yes, I think it was the -- yeah, it

21 was the Des Plaines downstream of Lemont Road.

Q. Are you referring to the second data

23 sheet in Exhibit 7?

A. Yes. And I believe it's River Mile

194

1 298. -- I'm not even -- here it is.

It's 298.3, which is the upstream

3 most site that we had in that survey.

Q. And I think you were asked this

5 morning if you knew whether or not it was impounded?

A. Yeah. And I think the reason was

7 because it had a note up here that it was edited,

8 and I think I made the comment that it should have

9 said not edited, but hold that right there.

The important thing is it's not

11 impounded. It's a rivering -- free flowing rivering

12 site.

Q. So the values would not have been

14 changed as a result of --

A. Yeah, it wouldn't have qualified for

16 any impoundment checkmark. It might be modified but

17 not modified by --

HEARING OFFICER: Mr. Andes?

MR. ANDES: I have a follow-up

question, actually, on that issue.

21 BY MR. ANDES:

Q. We talked a little before about how

23 you wouldn't classify the CAWS as impounded, but it

24 really is completely controlled by the three sets of

195

1 locks and dams. So is there a question of --

2 there's too much distance between the three sets of

3 locks and dams to be called impounded, or...

A. Well, if we can ascertain that those

5 dams being there raise the grade level throughout

6 that whole system, I might consider qualifying this

7 as impounded. But it doesn't fit, to me, the

8 classic run of a river low head dam kind of thing

9 that we see throughout the Midwest.

Q. Without these dams, there would be no

11 gradient, so...

HEARING OFFICER: Would there?

13 BY THE WITNESS:

A. Well, that's not the issue. I don't

15 think that's the issue.

The issue is what does it do to

17 the resulting habitat. And it just doesn't fit the

18 classic impoundment habitat that we see in other

19 rivers that are affected by these series of low head

20 dams.

I understand it's -- it has a lock

22 system and that kind of thing, and maybe in the

23 immediate area behind those dams we would call it

24 impounded, but that's something we would have to

196

1 ascertain.

Q. And that's based on your evaluation of

3 the habitat -- I'm trying to understand the

4 difference that you're seeing in those areas

5 approximate to the dams that would make the

6 difference.

A. Yes, it's how -- what does -- how much

8 does the dam raise the surface water level to the

9 point where it inundates that site. And if the dam

10 wasn't there, what would it expose in terms of

11 habitat?

I mean, that's really the concept

13 operating behind this. The other issue is, it's a

14 difference between recent and no recovery or

15 impoundment. We're not talking like no

16 channelization versus impoundment.

HEARING OFFICER: Mr. Ettinger?

18 BY MR. ETTINGER:

Q. Without belaboring this point, but I

20 think we are still -- it's kind of a common meaning

21 of impoundment, in which you could say the

22 Mississippi is impounded everywhere and low lock and

23 dam 26 because there's a dam there. But I gather

24 you want to consider the entire Mississippi

197

1 impounded because of that dam.

So how did you go about deciding

3 where impoundment ended?

A. Well, generally, we can find out

5 what's called the impoundment pool. We can

6 determine where to head into that.

And that whole -- it will vary,

8 depending on the state of the river. I mean, in

9 actuality, that's what we're interested in, what's

10 the effect.

But as far as the river is going

12 to determine if the pool becomes the dam, and by

13 doing that, it inundates the natural rivering

14 habitat that would otherwise be there without the

15 dam. That's what we're getting at.

So even in the Mississippi, which

17 I'm not as familiar with, I'm very familiar with the

18 Ohio River. The Ohio River has locks and dams, but

19 I would not consider every inch of that being

20 impounded, because it's not.

This dam affects only goes so far

22 upgrade, and then the rest of it is what we might

23 consider to be more free flowing, even though it's

24 flow is modified and controlled and all that. We

198

1 know that.

Again, it's an effort we just

3 focused in on one attribute here, hammering to death

4 without recognizing it's the synthesis of all these

5 things is what we're really after.

Q. I'm going to put in one more now.

7 The -- so biologically, the fact that the Dresden

8 Island lock and dam is there, doesn't cause the

9 whole Upper Dresden Pool to be impounded in the

10 relevant sense of what we're talking about?

A. Well, in that case, it was my

12 understanding that that impoundment effect occurred

13 up to virtually the next dam. And what it left was

14 only about maybe a mile of free flowing habitat in

15 the tail waters of the next dam.

So in that case, that's the extent

17 of it. It is the majority of the pool.

Q. Did you look at the DuPage Delta?

HEARING OFFICER: I'm sorry, Albert, I

didn't hear all that.

21 BY MR. ETTINGER:

Q. Did you look at the DuPage Delta?

A. I didn't, no.

HEARING OFFICER: Anything else?

199

Mr. Yoder, we thank you for you

patience, we thank you for your testimony.

We appreciate your being here.

Thank you very much.

THE WITNESS: Thank you. I appreciate

it.

HEARING OFFICER: I do have one thing.

Could you run upstairs and check with

John and see if the fax came in?

And then, I'm going to enter into

the record as an exhibit some questions that

the Board has for the IEPA. And the reason

being is that, thanks to our crack technical

unit, we have a nifty little map that you

hold up to the light and look at.

Specifically what our questions

are are concerning what was or what is your

map of the Chicago area waterway systems, and

that was exhibit -- Attachment H,

Attachments H and I. And we've overlaid it

with a U.S. GS topographic map.

And we've seen some discrepancies,

so there are some questions here about them.

I'm not going to read them, we have copies

200

for everybody.

But I'm going -- and all the other

exhibits, you can take with you. And, like I

said, I'm doing it because it is a map and

it's -- so I'm going to enter this as Exhibit

22, if there's no objection.

All right. Seeing none, we have

copies for you.

(WHEREUPON, a certain document

was marked Exhibit No. 22 for

identification, as of 2/1/08.)

HEARING OFFICER: And then, we are

going to go off the record for just a second.

We are checking to see about some of the

material that Mr. Yoder was trying to have

faxed in.

MS. FRANZETTI: Could I also ask --

just for the record, I don't think we ever --

did we ever get or resolve the request for a

map showing the 303(d) list impairments?

HEARING OFFICER: Mr. Esaig, I think,

told us on Tuesday he would have to wait

until after he went back to work on -- before

the --

201

MS. FRANZETTI: All right. And then,

was there TMDL related --

HEARING OFFICER: TMDL, also from

Marsha Willheit.

MS. FRANZETTI: And that, we're going

to get in the future?

HEARING OFFICER: She wasn't available

when we asked about it on Tuesday, she came

in later.

She's getting it. She has it.

Wonderful.

MS. FRANZETTI: All right. So we can

knock that one off.

MR. RAO: We are hoping that the

Agency, when they prepare the maps will put

in --

HEARING OFFICER: Yes.

And, Susan, you're supposed to be

getting us another report? You gave us a

copy of one, but the other one was too marked

up?

MS. FRANZETTI: Yes. That was one of

the literature reports that Mr. Yoder talked

about?

202

HEARING OFFICER: Yes.

MS. FRANZETTI: Yes.

(WHEREUPON, a recess was had.)

HEARING OFFICER: Back on the record.

Ms. Willheit, you were asked about

the status of TMDLs on the CAWS and Upper

Des Plaines, I believe, it was the UAA rules.

Could you tell us where those might be?

MS. WILLHITE: Marsha Willhite,

W-I-L-L-H-I-T-E.

Although the Agency is beginning

TMDLs for portions of the north branch

Chicago River and the Lower Des Plaines, it

does not include any segments that are part

of the UAA.

MS. WILLIAMS: Can you explain, are

they upstream --

MS. WILLHEIT: They are portions in

the general use, they are not part of the

secondary contact indigenous aquatic life.

HEARING OFFICER: Was there anything

additional for Ms. Willheit?

All right. Thank you.

And then, off the record for just

203

a second.

(WHEREUPON, discussion was had

off the record.)

HEARING OFFICER: Back on the record.

I want to thank everyone for your

attention and your good questions and good

answers. And I know it's been a long week,

and I appreciate everything you've done, and

I look forward to seeing all of you in March

in Joliet. Thank you.

We're adjourned.

(WHICH WERE ALL THE MATTERS

HEARD IN THE ABOVE-ENTITLED

CAUSE THIS DATE.)

204

1 STATE OF ILLINOIS)

) SS:

3 COUNTY OF COOK )

I, SHARON BERKERY, a Certified Shorthand

5 Reporter of the State of Illinois, do hereby certify

6 that I reported in shorthand the proceedings had at

7 the hearing aforesaid, and that the foregoing is a

8 true, complete and correct transcript of the

9 proceedings of said hearing as appears from my

10 stenographic notes so taken and transcribed under my

11 personal direction.

IN WITNESS WHEREOF, I do hereunto set my

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

14 February, 2008.

Certified Shorthand Reporter

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